Swann v. Charlotte-Mecklenberg Board of Education Brief for Appellants

    United (Eimrt of Appeals
F ob t h e  F oubth  C ircuit  

No. 10,207

In the

J am es E . S w a n n , et al.,
Appellants,

—and—

T h e  N orth  C arolina  T eachers A ssociation , 
a corporation,

Intervenor,
—v.—

T h e  C hablotte-M ecklenburg  B oard of E ducation , 
a public body corporate,

Appellee.

a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t  f o r  t h e

WESTERN DISTRICT OF NORTH CAROLINA, CHARLOTTE DIVISION

BRIEF FOR APPELLANTS

C onrad 0 .  P earson
203% East Chapel Hill Street 
Durham, North Carolina

J . L evonne  C ham bers
405% East Trade Street 
Charlotte, North Carolina

J ack  G reenberg 
D errick  A . B ell , J r .

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants



INDEX TO BRIEF

PAGE

Statement of the Case ...............   1

Questions Involved ............................................................  3

Statement of Facts ..........................................................  4

A rgum ent

I. The District Court’s Approval of Continued 
Racial Assignment of Negro Students to the 
Ten Excepted Negro Schools Was a Clear
Abuse of Discretion ........................................... 11

II. The Court Below Erred in Approving Trans­
fer Policies Which Preserve Racial Segrega­
tion in the School System ............................... 15

C onclusion  ........................................................................................ 21

T able of C ase s :

American Enka Corp. v. N. L. R. B., 119 F. 2d 60 (4th 
Cir. 1941) .......................................................................16,20

Bell v. School Board of City of Gary, 324 F. 2d 209
(7th Cir. 1963), cert. den. 377 U. S. 924 ................... 19

Bell v. School Board of Powhatan County, 321 F. 2d
494 (4th Cir. 1963) ..........................................................  18

Bowditch v. Buncombe County Board of Education,
345 F. 2d 329 (4th Cir. 1965) ....................................... 11

Bradley v. School Board of Richmond, Virginia, 345 
F. 2d 310, 323 (4th Cir. 1965) .............. .................... 14,17



11

Brooks v. County School Board of Arlington, 324 
F. 2d 303 (4th Cir. 1963) ...........................................  15

Brown v. Board of Education, 347 U. S. 483 (1954)
4, 7,11,12

Brown v. Board of Education, 349 U. S. 294 (1955)
7,11,15,16

Buckner v. County School Board of Greene County,
332 F. 2d 452 (4th Cir, 1964) .......................................  11

Cooper v. Aaron, 358 U. S. 1 (1958) ...............................  11

Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) ....... 15,18,
19, 20

Dowell v. School Board of City of Oklahoma City
Public Schools,------F. Supp.------- , No. 9452 (W. D.
Okla., Sept. 7, 1965) .................................................... 19, 20

Downs v. Board of Education of Kansas City, 336 
F. 2d 988 (10th Cir. 1964) ......................................... 19

Goss v. Board of Education of the City of Knoxville,
373 U. S. 683 (1963) .................................................. 11,15

Griffin v. County School Board of Prince Edward 
County, 377 U. S. 218 ...................................................11,15

Holland v. Board of Public Instruction, 258 F. 2d 730 
(5th Cir. 1958) ..............................................................  15

Jeffers v. Whitley, 309 F. 2d 620 (4th Cir. 1962) .....12,14
Jones v. School Board of City of Alexandria, 278 F. 2d 

72 (4th Cir. 1960) ..........................................................  15

Louisiana v. United States, 380 U. S. 145 .......16,18,19, 20

N. L. R. B. v. Newport News Shipbuilding & Dry Dock 
Co., 308 U. S. 241

PAGE

16



Ill

Nesbit v. Statesville City Board of Education, 345 
F. 2d 333 (4th Cir. 1965) ............................................  12

Northcross v. Board of Education of City of Memphis,
333 F. 2d 661 (6th Cir. 1964) ...................................15,19

Price v. Denison Independent School District, ------
F. 2 d ------ , 5th Cir. No. 21,632 (July 2, 1965) .......  13

Singleton v. Jackson Municipal Separate School Dis­
trict, ------F. 2 d -------  (5th Cir. No. 22,527, June 22,
1965) ................................................................................ 13,16

Sperry Gyroscope Co. v. N. L. R. B., 129 F. 2d 922 
(2d Cir. 1942) ...............................................................16,20

United States v. Crescent Amusement Co., 323 U. S.
173 ........................................................................ 16,18,19,20

Watson v. City of Memphis, 373 U. S. 526 (1963) .......  11
Wheeler v. Durham City Board of Education, 309 

F. 2d 630 (4th Cir. 1962) ........................................ 12,14
Wheeler v. Durham City Board of Education, ------

F. 2 d ------  (4th Cir. No. 9630, June 1, 1965) ...........  12

Oth er  A u t h o r it y :

General Statement of Policies Under Title VI of the 
Civil Rights Act of 1964 Respecting Desegregation 
of Elementary and Secondary Schools, United States 
Office of Education, Department of Health, Educa­
tion, and Welfare, April 1965 (H. E. W. Guide­
lines) ................................................................................12,14

PAGE



In the

T&mtzb Stall's (Eourt of Appeals
F or th e  F ourth  C ircuit  

No. 10,207

J ames E . S w a n n , et al., 

—and—
Appellants,

T h e  N orth  C arolina T eachers A ssociation , 
a corporation,

Intervenor,

T h e  C h arlotte-M ecklenburg  B oard of E ducation , 
a public body corporate,

Appellee.

appeal from  th e  united  states district court for th e
WESTERN DISTRICT OF NORTH CAROLINA, CHARLOTTE DIVISION

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order (145a) of the United 
States District Court for the Western District of North 
Carolina, Charlotte Division, approving a plan submitted 
by the Charlotte-Mecklenburg Board of Education for de­
segregation of the Charlotte-Mecklenburg public schools.

This action was instituted on January 12,1965, by twenty- 
five Negro children and their parents, on behalf of them­
selves and others similarly situated, seeking a permanent 
injunction enjoining the continued use of racially gerry­



2

mandered school districts, transfer policies based on race 
and racial employment and assignment of teachers and 
school personnel (la-8a). Answer to the complaint was 
filed on February 5, 1965 (9a), the appellee Board denying 
certain allegations of the complaint and alleging that it 
had established geographical attendance zones for schools 
to be placed in effect for the 1965-66 school year.

Appellants filed interrogatories on February 9, 1965 
(15a). On February 18, 1965, the Board moved (58a) that 
the time for answering same be extended until May 1, 1965. 
Appellants filed objections to the request for extension on 
February 23,1965 (60a). Following a hearing on the motion 
on March 11, 1965, the district court extended the time for 
answering the interrogatories until April 15, 1965 (62a). 
The Board filed answers to the interrogatories on April 
15, 1965 (20a), and attached its proposed plan for the as­
signment of students for the 1965-66 and subsequent school 
years (37a-47a).

On May 25, 1965, appellants moved the Court (63a) to 
preliminarily enjoin the Board’s proposed racial assign­
ment of Negro students to ten schools, which the Board ex­
cepted from its geographical assignment plan (42a-46a). 
The Board filed an answer to the motion on May 27, 1965 
(65a). The district court entered a Memorandum Decision 
and Order on June 1, 1965, denying appellants’ motion for 
preliminary injunction (97a).

The North Carolina Teachers Association filed a motion 
to intervene in the action and a complaint in intervention 
on June 1, 1965 (100a-105a). The Board filed an answer 
to the motion on June 8, 1965 (106a), and to the complaint 
in intervention on July 15, 1965 (107a).

Appellants filed additional interrogatories on June 24, 
1965 (109a), following the Board’s assignment of students 
which were answered on July 8, 1965 (112a).



3

The cause came on for hearing on July 12 and 13, 1965, 
at which time the lower court received stipulated facts and 
testimony and heard arguments from counsel for both 
parties. The district court entered a Memorandum De­
cision (145a) and Judgment (155a) on July 14, 1965, find­
ing that the Board’s continued racial assignment of Negro 
students to the ten excepted schools was reasonable, that 
there was no evidence of purposeful gerrymandering of 
the attendance zones established for the other schools, and 
ordering the plan modified to provide for the immediate 
employment and assignment of teachers and school per­
sonnel on a nonracial basis. A  judgment was accordingly 
entered approving the plan as modified (155a).

Notice of appeal was filed on July 15, 1965.

On August 20, 1965, appellants moved this Court for an 
injunction pending appeal to enjoin the racial assignment 
of Negro students to the ten excepted schools and requested 
an early hearing. In an order dated August 24, 1965, 
hearing on the motion was postponed until hearing on the 
merits on appeal, with leave given the parties to address 
themselves to the motion as well as to the merits (164a).

Questions Involved

1. Whether the Court below erred in approving a plan 
providing for continued racial assignments of all Negro 
students in ten of the Board’s schools, where such continued 
assignments were not required by unavoidable administra­
tive problems and had the effect of severely limiting the 
amount of desegregation in the system.

2. Where a school board has followed a policy of com­
pulsory racial assignments pursuant to dual bi-racial school 
zones, may such board satisfy the requirements of Brown



4

v. Board of Education to disestablish their segregated 
system by designing geographical attendance zones which 
limit integration, and adopting transfer procedures which 
maintain segregation in the schools.

Statement of Facts

There are approximately 75,000 students in the Char- 
lotte-Mecklenburg School System, approximately 52,000 
white pupils and 23,000 Negro pupils (25a-27a). During the 
1964-65 school year the system had 56 all-white schools, 31 
all-Negro schools; there was a small degree of racial mix­
ing in the remaining 22 schools.1 For the 1965-66 school

1 Enrollment for 1964-65 and 1965-66 by schools (25a, 27a) :
E n r o l l m e n t 1964-65 E n r o l l m e n t 1965-66

S c h o o l Negro White Negro White
Alexander Jr. 0 577 7 595
Alexander Street 342 0 333 0
Ashley Park 0 654 0 656
Bain 0 674 0 712
Barringer 0 604 0 646
Berryhill 0 1026 2 1003
Bethune 343 9 355 10
Biddleville 434 0 421 0
Billingsville 729 0 721 0
Briarwood 2 582 7 623
Chantilly 0 445 3 434
Clear Creek 0 207 0 195
Cochrane Jr. 0 872 10 961
Collinswood 0 375 0 378
Cornelius 0 241 2 246
Costwold 0 631 0 620
Couhvood Jr. 3 574 33 641
Crestdale 97 0 87 0
Davidson 0 178 0 185
Marie Davis 80S 0 813 0
Derita 6 892 22 948
Devonshire 2 474 4 525
Dil worth 100 401 105 343
Double Oaks 703 0 786 0
Druid Hills 520 0 485 0
East Mecklenburg High 0 1782 4 1930
Eastover 0 704 1 650



5

year, there are 36 all-white schools, 29 all-Negro schools, 
and 44 racially mixed schools.

(Continued)
E n r o l l m e n t 1964-65 E n r o l l m e n t 1965-66

S c h o o l Negro White Negro White
Eastway Jr. 0 1046 1 1121
Elizabeth 5 448 79 329
Enderly Park 0 368 0 356
Fairview 702 0 715 0
First Ward 473 0 430 0
Garinger High 2 2266 65 2249
Alexander Graham 0 1048 18 1105
J. H. Gunn 696 0 707 0
Harding High 0 1002 29 1030
Hawthorne Jr. 25 670 102 729
Hickory Grove 0 530 0 534
Highland 2 273 3 302
Hoskins 0 342 6 355
Huntersville 0 553 1 528
Huntingtowne Farms 0 358 0 390
Idlewild 0 592 0 543
Irwin Avenue Jr. 785 0 836 0
Amay James 360 0 360 1
Ada Jenkins 431 0 441 0
Lakeview 0 400 3 385
Lansdowne 0 633 0 672
Lincoln Heights 783 0 756 0
Long Creek 0 423 0 402
Matthews Jr. 0 937 1 919
McClintock Jr. 0 1273 0 1382
Merry Oaks 0 538 0 526
Midwood 0 560 0 497
Montclaire 0 720 0 644
Morgan 305 0 311 0
Myers Park Elem. 0 575 0 598
Myers Park High 31 1772 162 1693
Myers Street 820 0 747 0
Nations Ford 0 513 0 545
Newell 0 463 0 486
North Mecklenburg 1 1155 151 1137
Northwest Jr. 773 0 0 818
Oakdale 0 402 5 423
Oakhurst 0 548 0 551
Oaklawn 6 6 6 0 693 0
Park Road 0 583 0 604
Paw Creek 0 793 0 768



6

Prior to 1962, the Board made assignment of students 
according to dual racial attendance zones established prior

1 (Continued)
E n r o l l m e n t 1964-65 E n r o l l m e n t 1965-66

S c h o o l Negro White Negro White
Piedmont Jr. 121 291 287 201
Pineville 0 364 0 367
Pinewood 0 719 0 704
Plato Price 505 0 509 0
Plaza Road 0 400 2 332
Quail Hollow Jr. 0 766 0 878
Rama Road 0 442 2 509
Ranson Jr. 9 658 33 727
Second Ward 1411 0 1529 1
Sedgefield Elem. 3 526 5 561
Sedgefield Jr. 6 920 43 923
Selwyn 0 531 0 533
Seversville 96 229 226 19
Shamrock Gardens 0 536 0 532
Sharon 0 591 0 568
Smith Jr. 0 1115 0 1207
South Meek. High 30 1430 122 1546
Spaugh Jr. 1 930 11 917
Starmount 0 481 0 549
Statesville Road 0 650 0 650
Steele Creek 0 222 0 220
Sterling Jr. 699 0 607 0
Thomasboro 0 885 0 926
Torrence-Lytle 1005 0 944 0
Tryon Hills 0 324 4 316
Tuckaseegee 0 631 0 598
University Park 700 0 735 0
Villa Heights 23 594 101 528
Wesley Heights 214 0 209 0
West Charlotte High 1560 0 1695 0
West Mecklenburg High 1 1270 84 1286
Williams Jr. 752 0 808 0
Wilmore 6 323 22 333
Wilson Jr. 0 1064 1 1155
Windsor Park 1 679 1 704
Winterfield 0 455 0 577
Woodland 360 0 326 0
Woodlawn 0 283 1 272
Isabella Wyche 383 0 376 0
York Road 1041 0 1127 0
Zeb Vance 465 0 525 0



7

to 1954. Teachers, principals and school personnel were 
employed and assigned according to their race and color 
and the race and color of the students attending the par­
ticular schools (167a-169a). Extra-curricular school activ­
ities were authorized and sanctioned on a racial basis. Thus 
except for a few Negro students who had sought transfers 
pursuant to the N. C. Pupil Enrollment Act, N. C. G. S. 
§§115-176 et seq., no steps had been taken by the Board 
to bring the school system in compliance with the Supreme 
Court’s decisions in Brown v. Board of Education, 347 
U. S. 483 and 349 U. S. 294 (168a).

In 1962, the Board drew attendance zones for two schools 
(174a) but provided that students in these schools could 
transfer out if their race was in the minority (175a-176a). 
The Board denied applications of other students who sought 
to transfer to a school to obtain an integrated education 
(176a-177a). During the 1963-64 school year, the Board 
extended geographical assignments to twelve additional 
schools (48a, 175a). The Board continued its policy of 
granting racial transfers (48a, 175a-177a). In this year 
the Board also assigned one white teacher to teach Bible 
part-time in a Negro school. The Board extended geo­
graphical assignments to 43 schools for the 1964-65 school 
year (50a, 178a), continuing the same racial transfer 
policy. Several of these lines were admittedly gerryman­
dered (328a). In this year, also, the Board assigned 8 
white teachers to all-Negro schools (178a-179a). No Negro 
teacher was assigned to teach in a white or predominantly 
white school. Approximately 819 Negro students were at­
tending schools with approximately 17,366 white students 
(25a-27a).

For the 1965-66 school year the Board proposed to ex­
tend geographical attendance zones to 99 of the 109 schools



8

(37a-47a).2 The 10 “excepted” schools are all-Negro and 
offer inferior education because of the low enrollments 
in these schools. In addition, Negro students are required 
to travel several miles, across several attendance zones 
to reach these schools, even though schools near the resi­
dences of these Negro students could easily absorb the 
Negro students. For these schools, the Board proposed to 
continue its dual attendance zones and bus routes. The 
plan provides that these students may request transfer out 
of these schools, but the parents were not advised that 
bus transportation would be provided if they requested 
transfer of their children to other schools (41a; 70a-96a). 
There are approximately 4,000 Negro students assigned 
to the “excepted” schools, more than one-half of whom 
would be assigned to integrated schools if nonracial dis­
trict lines were drawn (332a-333a).

The Board gave as reasons for excepting these schools: 
the problem of space, the programs being offered at these 
schools, and the building program, following completion 
of which new school zone lines are to be drawn for all 
schools affected (398a-399a).

Pursuant to its plan for establishing geographical at­
tendance zones for the other 99 schools, the lines drawn 
showed the following:

2 The plan provides (paragraph 10) (42a) :
“There exist attendance areas, serving certain schools in Mecklen­
burg County, which now overlap and embrace territories which 
include the attendance areas of other schools. The schools with 
attendance areas which overlap other attendance areas are Sterling 
School, Torrence-Lytle School and J. H. Gunn, which are known 
as union schools providing instruction at the elementary, junior 
high and senior high school level in grades one through twelve, 
the York Koad Junior-Senior High School, the Plato Price and 
Billingsville Schools which combine elementary and junior high 
school courses of instruction, Crestdale Elementary School, Ada 
Jenkins Elementary School, Amay James Elementary School and 
Woodland Elementary School” (42a).



9

The northeast line of Lakeview Elementary School 
starts on Rozze.lls Ferry Road, and, instead of con­
tinuing down this road, a substantial highway, to 
Stewart Creek Road, it veers off to pick up some white 
students, thereby keeping them out of the all-Negro 
Biddleville Elementary School (240a-242a). The Board 
stated that the line followed a railroad track (328a).

The southwest line of Barringer Elementary, all- 
white, veers off on an undisclosed street, rather than 
going along the railroad track (245a-246a). The 
Board stated that the lines here would be changed 
upon completion of Allenbrook School (330a-331a).

The eastern zone of Eastover Elementary School, 
all-white, starts down Randolph Road and suddenly 
cuts off, for no apparent reason, and goes hack. This 
removes a small white community from the Negro 
Billingsville School (247a-248a; 440a-441a). The Board 
stated the line followed a creek (331a-332a).

The southern line of Billingsville Elementary School 
cuts across a proposed new road (249a; 333a), rather 
than continuing down to McAlway Road. The present 
line keeps several white students, attending Cotswold 
Elementary, out of all-Negro Billingsville Elementary 
School (249a-250a; 440a-441a).

The southern line of Derita Elementary, with 22 
Negro students and 948 white students, comes down 
across Interstate 85, a major thoroughfare, and picks 
up a small white community. The effect of this line 
is to keep the white children, south of Interstate 
Highway 85, out of all-Negro Druid Hill (253a). The 
Board stated that it contemplated redrawing the line 
at Interstate Highway 85 as soon as it completed 
building a junior high school in that area (333a-334a).

Alexander Graham School has a wandering line 
which logically should follow Providence Road to



10

Wendover Road, both major highways. Instead, the 
line branches off between Andover Road and Vernon 
Drive, keeping a small settlement of white students 
in Alexander Graham rather than placing them in 
all-Negro Billingsville (258a).

The common line between Second Ward and Pied­
mont Junior High School instead of following Trade 
Street, which is a major thoroughfare, cuts off to pick 
up a Negro settlement and then returns to Trade 
Street. If the line followed Trade Street this would 
enable more Negroes to attend Piedmont Junior High 
and alleviate the overcrowded conditions at Second 
Ward Junior High School (259a-260a).

The west line of Ranson Junior High School, in­
stead of following Beatties Ford Road or Belhaven 
Road to Oakdale and then to Sunset Road, major 
streets, cuts off Beatties Ford Road for no apparent 
reason. If it followed Beatties Ford Road this would 
put more Negroes in Coulwood Junior High School 
or Ranson Junior High School. The southern line 
should cut off at Interstate 85 rather than crossing 
Interstate 85 as it presently does. The present line 
keeps Negroes out of Cochrane Junior High School 
(261a-264a).

There are some 19 schools in the system to which 
one or two students of one race were initially assigned. 
No apparent reason was given for this small number 
of one racial group being initially assigned to par­
ticular schools (250a-251a).

The plan as proposed by the School Board provides for 
free transfers of students after initial assignment (38a- 
39a). The effect of this provision has been that the 396 
white students initially assigned to 16 Negro schools have



11

transferred out of these schools and thus re-segregated 
the 16 Negro schools (394a-396a).

Nineteen hundred and fifty-five Negro students were 
initially assigned to mixed or previously all-white schools 
(312a). Ninety-one of these requested transfer out and 262 
Negro students requested transfers to integrated schools 
leaving a balance of 2,126 of approximately 23,000 attend­
ing integrated schools for the 1965-66 school year.

A R G U M E N T

I.

The District Court’ s Approval of Continued Racial 
Assignment of Negro Students to the Ten Excepted 
Negro Schools Was a Clear Abuse of Discretion.

A. It was more than eleven years ago when the Su­
preme Court proscribed racial segregation in public edu­
cation. Brown v. Board of Education, 347 U. S. 483. Pub­
lic school authorities were then required to make a prompt 
and reasonable start toward eliminating their racially dis­
criminatory policies. Brown v. Board of Education, 349 
U. S. 294, 300. Since that time the Supreme Court, and 
this Court, have consistently reproved delays in complying 
with the Brown decision. Cooper v. Aaron, 358 U. S. 1; 
Watson v. City of Memphis, 373 U. S. 526; Goss v. Board 
of Education, 373 U. S. 683; Griffin v. County School Board 
of Prince Edward County, 377 U. S. 218; Buckner v. 
County School Board of Greene County, 332 F. 2d 452 
(4th Cir. 1964); Bowditch v. Buncombe County Board of 
Education, 345 F. 2d 329 (4th Cir. 1965). Plans or pro­
grams which could be approved for eliminating racial 
discrimination in public schools have been sharply re­
stricted. Goss v. Board of Education, supra.



12

Eleven years following the Brown decision, and despite 
the decisions of the Supreme Court and of this Court, the 
Court below has approved a plan which permits the con­
tinued use of dual, racial school zone lines and continued 
initial racial assignment of one-fifth of the system’s Negro 
students to 10 of the 109 schools. This Court has expressly 
enjoined the use of dual racial school zone lines. Jeffers 
v. Whitley, 309 F. 2d 621 (4th Cir. 1962); Wheeler v. 
Durham City Board of Education, 309 F. 2d 630 (4th Cir. 
1962). This Court has further rejected plans providing 
for initial racial assignments. Wheeler v. Durham City
Board of Education, ------  F. 2d ------ , 4th Cir. No. 9630
(June 1, 1965); Nesbit v. Statesville City Board of Educa­
tion, 345 F. 2d 333, 334-335 N. 3 (4th Cir. 1965) (“ a court 
ought not to put its stamp of approval upon [a plan of 
desegregation] if initial assignments are both racial and 
compulsory” ). Despite this Court’s rulings, however, the 
court below has approved these patently discriminatory 
practices.

B. Moreover, the plan here approved by the district 
court falls far short of the minimum requirements of the 
Department of Health, Education and Welfare for com­
pliance with Title VI of the Civil Rights Act of 1964. 
Under the Department’s regulations, no pupil may be 
“assigned, reassigned or transferred without being given 
once annually at an appropriate time an adequate prior 
opportunity to make an effective choice of school” .3 * 5

The district court’s ruling here, in requiring less than 
the minimum standards of the Department of Health, 
Education and Welfare, invites the executive-judicial con­

3 General Statement o£ Policies Under Title VI of the Civil Eights
Act of 1964 Respecting Desegregation of Elementary and Secondary
Schools, HEW, Office of Education, xlpril 1965 (H. E. W. Guidelines).



13

flict which the Fifth Circuit has only recently admonished 
district courts under its jurisdiction to avoid. E.g., Single-
ton v. Jackson Municipal Separate School District, ------
F. 2 d ------ , 5th Cir. No. 22,527 (June 22, 1965); Price v.
Denison Independent School District, ------  F. 2d ------,
5th Cir. No. 21,632 (July 2, 1965).

No justifiable basis whatever has been advanced by 
the Board for excluding these 10 Negro schools from its 
geographical attendance plan. The evidence clearly shows 
that these students could be adequately placed in the 
schools now serving their districts.

Negro students living near the Thomasboro Elementary 
School are transported over long distances to the Amay 
James and Plato Price Schools, although the Thomasboro 
School is able to absorb the Negro students in this area 
(242a-244a). Similarly, Negro students in the Newell 
Elementary (246a-247a) and Berryhill Elementary (248a- 
249a) area are transported, in some instances 8 or 10 miles 
to all-Negro schools, even though there is space for these 
students at Newell and Berryhill. The Paw Creek Elemen­
tary School district, all white, is in the same area as Wood­
land Elementary, all-Negro and an excepted school. These 
schools are separated by Mount Holly Road with Negroes 
and whites living on both sides and with space available 
to accommodate the students (244a). The Billingsville 
Junior High School with 200 students is unable to offer 
comparable programs to other junior high schools in the 
system. Yet, these students are retained in Billingsville 
although they could easily be assigned to surrounding 
schools (257a-259a). The only logical inference that can 
be drawn here is that of the reluctance of the School 
Board to assign white students to the Negro schools or 
Negro students to the white schools in the area. Despite 
the fact that these students, admittedly, are receiving an



14

inferior education at these schools, the Board proposes, 
and the court below has approved, retaining these Negro 
students in patently inferior schools for one or two more 
years.

The Board contends that it affords a remedy to students 
in the accepted schools by permitting them to transfer. 
This Court has made it unequivocally clear that in order 
for a plan to be approved it must afford an opportunity 
to the students to indicate a choice prior to initial assign­
ment. Wheeler v. Durham City Board of Education,------
F. 2d ------ , 4th Cir. No. 9630 (June 1, 1965); see also
Department of Health, Education and Welfare regulations 
cited above. Moreover, in order to afford an effective cor­
rective “means must exist for the exercise of a choice that 
is truly free and not merely pro forma” . Bradley v. 
Board of Education of City of Richmond, 345 F. 2d 310, 
323 (4th Cir. 1965) (Concurring and dissenting Opinion of 
Judges Sobeloff and B ell); Jeffers v. Whitley, 309 F. 2d 620 
(4th Cir. 1962). Here, although, the School Board mailed 
letters to parents of children who were initially assigned to 
the 10 excepted schools, no notice was given to advise these 
parents that transportation would be available for these 
students to attend other schools (70a-96a). Practically, 
all of these schools are in the county, and students are 
bussed to school. I f the choice, allegedly, given these 
parents is to be an effective one, transportation will have 
to be provided and the parents of children in these schools 
should have been so advised.

Manifestly, therefore, the denial by the district court 
of the clear and expressed constitutional rights of appel­
lants is at variance with the decisions of the Supreme 
Court and of this Court and constitutes a clear abuse of 
discretion.



15

II.

The Court Below Erred in Approving Transfer Poli­
cies Which Preserve Racial Segregation in the School 
System.

The Supreme Court has placed upon school boards the 
affirmative duty of developing and implementing plans for 
complete desegregation of their school systems. Brown v. 
Board of Education, 349 U. S. 294, 300. Plans or programs 
which merely remove racial designations while retaining 
racial segregation have consistently been reproved. Griffin 
v. County School Board of Prince Edwards County, 377 
U. S. 218; Goss v. Board of Education, 373 U. S. 683; 
Brooks v. County School Board of Arlington, 324 F. 2d 303 
(4th Cir. 1963); Jones v. School Board of Alexandria, 278 
F. 2d 72 (4th Cir. 1960); Northeross v. Board of Education 
of City of Memphis, 333 F. 2d 661 (6th Cir. 1964); Holland 
v. Board of Public Instruction, 258 F. 2d 730 (5th Cir. 
1958); Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960). Thus, 
the Eighth Circuit has stated in Dove v. Parham, supra at 
259:

In summary, it is our view that the obligation of a 
school district to disestablish a system of imposed 
segregation, as the correcting of a constitutional viola­
tion, cannot be said to have been met by a process of 
applying placement standards, educational theories, or 
other criteria, which produces the result of leaving the 
previous racial segregation situation existing, just as 
before. Such an absolute result affords no basis to 
contend that the imposed segregation has been or is 
being eliminated. The placement standards, educa­
tional theories, or other criteria used have the effect 
and application of preserving the creative status of



16

constitutional violation, then they fail to constitute a 
sufficient remedy for dealing with the constitutional 
wrongs.

It is equally imperative that a school plan he considered 
in light of the past history of the school hoard and the cir­
cumstances in which it is proposed to operate. Plans for 
compliance with the Brown decision should not he con­
sidered in a vacuum. Thus, where a school hoard has de­
liberately followed a policy over a period of years of com­
pulsory segregation of races in the public schools, of as­
signing students, teachers and school personnel according 
to race, of placing schools and school zone lines on the 
basis of race, it does not satisfy its affirmative duty of 
disestablishing this system by merely adopting a hands- 
off policy. It is encumbent that the plan adopted provide 
the means and actually lead to disestablishment of the il­
legal system deliberately created. Cf. Louisiana v. United 
States, 380 U. S. 145; United States v. Crescent Amuse­
ment Co., 323 U. S. 173; N. L. R. B. v. Newport News Ship­
building £  Dry Dock Co., 308 U. S. 241; American Enka 
Corp. v. N. L. R. B., 119 F. 2d 60 (4th Cir. 1941); Sperry 
Gyroscope Co. v. N. L. R. B., 129 F. 2d 922 (2nd Cir. 1942).

The Fifth Circuit has clearly adopted this position in 
Singleton v. Jackson Municipal Separate School District, 
------ F. 2 d -------  (Xo. 22527, June 22, 1965). The court re­
viewed the obligation imposed on school boards by the Su­
preme Court in Brown v. Board of Education, 349 U. S. 
294 and stated in conclusion:

In retrospect, the second Brown opinion clearly im­
posed on public school authorities the duty to provide 
an integrated school system. Judge Parker’s well- 
known dictum (“ The Constitution, in other words, 
does not require integration. It merely forbids dis­



17

crimination.” ) in Briggs v. Elliott, E. D. S. C. 1955, 
132 F. Supp. 776, 777, should be laid to rest. It is in­
consistent with Brown and the later development of 
decisional and statutory law in the area of civil rights.

While the issues before this court in Bradley v. School 
Board of City of Richmond, 345 F. 2d 310 (4th Cir. 1965), 
in which each student was given complete freedom of choice 
are clearly distinguishable from the factual situation here, 
the views of Judges Sobeloff and Bell expressed in that 
case (Bradley v. School Board of City of Richmond, supra, 
at 323) appear in accord with the position of the Fifth 
Circuit and are both logically and practically necessary if 
the mandate of Brown is ever to be translated into fact. 
The Judges there stated:

It is now 1965 and high time for the court to insist 
that good faith compliance requires administrators of 
schools to proceed actively with their nontransferable 
duty to undo the segregation which both by action 
and inaction has been persistently perpetuated. How­
ever phrased, this thought must permeate judicial 
action in relation to the subject matter. (Emphasis 
in original.)

Considered in this context, the error of the district 
court, in approving the attendance areas adopted by 
appellee, is clear.

Appellee, over the years, has followed a deliberate 
policy of segregation of the races in its public schools. 
Attendance areas were established, schools planned and 
located, and children assigned to the various schools in 
furtherance of appellee’s racial policy. In attempting to 
carry out its affirmative duty of disestablishing its segre­
gated school system, appellee does not discharge this duty



18

by now merely taking a neutral position in drawing at­
tendance areas around schools deliberately located to 
maintain segregation. Louisiana v. United States, supra; 
United States v. Crescent Amusement Co., supra. Bee 
also, Bell v. School Board of Powhatan County, 321 F. 2d 
494, 499 (4th Cir. 1963), where counsel for the school board 
questioned whether the board had violated its duty by 
failing to encourage integration, the court stated: “ The 
school board has indeed violated its duty. It is upon the 
very shoulders of school boards that the major burden 
has been placed for implementing the principles enun­
ciated in the Brown decision” . Particularly is this so 
where, as here, the newly established zones leave the 
school system as racially segregated as before. Dove v. 
Parham, supra.

The evidence here shows several instances where school 
zone lines have veered off from normally established 
routes resulting in the exclusion or inclusion of a par­
ticular racial settlement. As shown by the testimony of 
plaintiffs’ expert witness, the attendance areas of Lake- 
view Elementary School, Barringer Elementary School, 
Billingsville Elementary School, Eastover Elementary 
School and Derita Elementary School, veer off from 
reasonably acceptable routes, resulting in the exclusion 
or inclusion of certain racial groups. (240a-242a, 245a-246a, 
247a-248a, 440a-441a, 249a-250a, 253a.) The same is true 
of the attendance areas of Alexander Graham, Second 
Ward and Ransom Junior High Schools (258a, 259a-260a, 
261a, 264a). The attendance area of Billingsville Elemen­
tary School, all-Negro, is completely surrounded by five 
entirely or predominantly white elementary schools. Even 
if it is assumed that the appellee here was neutral and 
followed, in drawing the attendance zones, what would 
be acceptable educational criteria in another context, it



19

has failed to discharge its duty if, as here, equally ac­
ceptable boundaries exist which would further the process 
of disestablishing the segregated school system. Cf. Dove 
v. Parham, supra; Northcross v. Board of Education of 
City of Memphis, 333 F. 2d 661, 664 (6th Cir. 1964); 
Dowell v. School Board of City of Oklahoma City Public
Schools, ------  F. Supp. --------- , No. 9452 (W.D. Okla.,
Sept. 7, 1965).

The issue here is clearly distinguishable from that 
faced by the Seventh Circuit in Bell v. School Board of 
City of Gary, 324 F. 2d 209 (7th Cir. 1963), cert, denied, 
377 U.S. 924, and the Tenth Circuit in Downs v. Board of 
Education of Kansas City, 336 F. 2d 988 (10th Cir. 1964). 
Whatever may be the constitutional obligation of school 
systems with racially imbalanced schools caused by 
residential patterns and varied conditions not attributable 
directly to school officials (see generally, Fiss, “ Racial 
Imbalance in the Public Schools: The Constitutional
Concepts” , 78 Harv. L. Rev. 564 (1964)), the constitutional 
duty of disestablishing, as here, carefully and deliberately 
established segregated school systems is clear. Whatever 
might be said of appellee’s geographical zoning of its 
school district if hypothetically appraised in another 
context where no history of compulsory segregation is 
present, appellee’s present lines should be viewed in its 
factual context against a background of school planning 
and manipulation to foster segregation. Against that 
background, and faced, as was appellee, with the alterna­
tive of drawing attendance areas for the schools referred 
to above along lines of constitutionally acceptable stan­
dards so as to further disestablish its segregated 
school system, its failure to follow these lines may not 
be constitutionally condoned. Louisiana v. United States, 
supra; United States v. Crescent Amusement Co., supra;



20

Dove v. Parham, supra; Dowell v. School Board of City 
of Oklahoma City Public Schools, supra.

Equally objectionable here is the transfer system estab­
lished by appellee which has resulted generally in re­
segregation of the school system after initial assignment. 
Here, appellee initially assigned 346 white students to 
16 formerly all-Negro schools. Pursuant to appellee’s 
transfer policy, 345 of these students transferred out to 
all-white or predominantly white schools. Again, this 
procedure must be viewed in light of appellee’s prior 
practices of compulsory racial segregation and of its 
practices followed since its initiation of geographical 
attendance areas in 1962 of granting and encouraging 
transfers of students initially assigned to integrated 
schools. These standards established here by appellee 
actively promote “the result of leaving the previous racial 
situation existing, just as before.” Dove v. Parham, supra; 
Dowell v. School Board of City of Oklahoma City Public 
Schools, supra. Just as in Dowell, appellee here should 
be required to adopt procedures which will further dis­
establish the racial segregation of students in its public 
school system. Merely taking a neutral or hands off posi­
tion here does not dischharge appellee’s constitutional 
duty of desegregating the public schools under its juris­
diction. Louisiana v. United States, supra; United States 
v. Crescent Amusement Co., supra; American Enka Corp., 
v. N.L.R.B., supra; Sperry Gyroscope Co. v. N.L.R.B., 
supra.



21

CONCLUSION

Appellants respectfully submit that for all of the fore­
going reasons the decision in the court below should be
reversed.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, III 
D errick  A. B e l l , J r .

10 Columbus Circle
New York, New York 10019

C onrad 0. P earson
203% East Chapel Hill Street 
Durham, North Carolina

J . L evonne  C ham bers
405% East Trade Street 
Charlotte, North Carolina

Attorneys for Appellants



MEilEN PRESS IN C  —  N. Y. C.