Copeland v. Martinez Petitioner's Reply to the Memorandum for the Respondent in Oppostion

    Ê <roxJ
I n  t h e

Ihutrit Itars (tart at Appeals
F oe t h e  F o u r t h  C ir c u it  

No. 11,794

H arold  D ouglas C oppedge , et al., 
and

U n it e d  S tates  op A m e r ic a , 
b y  R a m s e y  C l a r k ,
Attorney General,

Appellees,
v s .

T h e  F r a n k l in  C o u n t y  B oard op E d u c a tio n , 
a public body corporate, et al.,

Appellants.

ap pe a l  from  t h e  d istric t  court  of t h e  u n ite d  states
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION-CIVIL

BRIEF FOR PLAINTIFFS-APPELLEES

J a c k  G reenberg  
J am e s  M. N a b r it , III 
R obert B elto n  
J am e s  N . F in n e y

10 Columbus Circle
New York, New York 10019

J . L eV o n n e  C h am be rs
405% East Trade Street 
Charlotte, North Carolina

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

Attorneys for Plaintiffs-Appellees



I N D E X

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

Statement .......................... ..................................................  5

Composition of the Franklin County School Sys­
tem .............................................................................  5

Unequal Facilities and Programs ......................... . 7

School Desegregation in Franklin County ......... . 9

1. Pupil Desegregation ..........................   9

2. Faculty and Staff Desegregation .... ..........  11

Intimidation, Harassment and Reprisals .............   13

Questions Presented ..........................................................  17

A r g u m e n t

I. There Was Sufficient Evidence to Support the 
District Court’s Conclusion That Desegregation 
Under a Free Choice Plan in Franklin County 
Was an Illusion ............ ......... ..... ........................... 18

II. The Record Clearly Showed That a Freedom of 
Choice Plan Was Not Likely to Disestablish the 
Dual School System in Franklin County ............ 20

A. Free Choice in Franklin Perpetuated the Dual
System .......................................    21

B. Intimidation, Harassment and Reprisals
Against the Negro Community Further Made 
Free Choice Inadequate ......   26

PAGE



11

III. A  Freedom of Choice Plan Is Constitutionally Un­
acceptable Where There Are Other Methods 
Which Are Educationally, Financially and Ad­
ministratively More Feasible and Which Would 
More Speedily and Substantially Disestablish the

PAGE

Dual System...............................................................  29

C o n clu sio n  ............................................................ ............................... 35

T able of C ases

Anderson v. Federal Cartridge Corp., 156 F.2d 681
(8th Cir. 1946) ........................................ ............. .........  19

Armstrong v. Board of Education of the City of Birm­
ingham, 333 F.2d 47 (5th Cir. 1963) ..........................  31

Bowman v. County School Board of Charles County,
Va., 382 F.2d 326 (4th Cir. 1967) ........................ 20, 21,32

Bradley v. School Board of City of Richmond, 345 F.2d 
310 (4th Cir. 1965), vacated and remanded on other
grounds, 382 U.S. 103 ............................................20, 24, 32

Brown v. Board of Education, 347 U.S. 483 .................23, 32
Brown v. Board of Education, 349 U.S. 294 .........23, 29, 30,

31, 32

Cooper v. Aaron, 358 U.S. 1 (1958) ............................... 32
Corbin v. County School Board of Loudoun County,

Va., ------  F. Supp. ------ , C.A. No. 2737 (E.D. Va,
Aug. 29, 1967) .................................................................  32

Graver Tank and Mfg. Co. v. Linde Air, 339 U.S. 605 
(1950)  .............................................................................  9

Kier v. County School Board of Augusta County, 249 
F. Supp. 239 (W.D. Va. 1966) 22



I ll

Lee v. Macon County Board of Education, 267 P. Supp.
458 (M.D. Ala. 1967) ...................................................... 20

Moses v. Washington Parish School Board, C.A. No.
5973 (E.D. La., October, 1967) ......................... ........ 29,32

Roger v. Paul, 382 TT.S. 198 (1965) .................................. 24

United States v. Aluminum Co. of America, 148 F.2d 
416 (2nd Cir. 1945) ........................................................  19

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966), aff’d with modifications 
on rehearing en banc, 380 F.2d 385 (1967), cert, 
denied,------ U .S .-------  (1967) .............................. 20,21, 24

United States v. United States Gypsum Co., 333 U.S.
364 (1948) .......................................................................  18

West v. Schwarz, 182 F.2d 721 (7th Cir. 1950) .......... 19
Wheeler v. Durham City Board of Education, 363 F.2d 

738 (4th Cir. 1966) .......................................................  24

Other Authorities:

McCormick, Evidence §228 ....    32

5 Moore’s Federal Practice §52.03, Note 21 ................... 19

Revised Statement of Policies for School Desegrega­
tion Plans under Title VI of the Civil Rights Act 
of 1964 (45 C.F.R. Part 181.54) ..................................  21

U.S. Commission on Civil Rights, Southern School 
Desegregation, 1967 (July 1967) .................................  29

U.S. Commission on Civil Rights, Survey of School 
Desegregation in Southern and Border States, 1965- 
66 (February, 1966), p. 51

PAGE

23



I n  t h e

States ©Hurt of Kypraiz
F oe t h e  F o u e t h  C ib c u it  

No. 11,794

H aeold  D ouglas C oppedge , et al., 

and

U n it e d  S tates  of A m e b ic a , 
b y  R a m s e y  Cl a e k ,
Attorney General,

Appellees,
vs.

T h e  F r a n k l in  C o u n t y  B oard of E d u c a tio n , 
a public body corporate, et al.,

Appellants.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOB THE EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION-CIVIL

BRIEF FOR PLAINTIFFS-APPELLEES

Statement of the Case

This appeal is brought by the Franklin County School 
Board of Franklin County, North Carolina, seeking reversal 
of an Order entered by the District Court on August 17, 
1967. The court found that a “ freedom of choice” deseg­
regation plan was ineffective to disestablish the segregated 
school system and ordered the Board to file a desegrega­
tion plan utilizing a unitary system of non-racial at­
tendance zones, consolidation of grades, schools or both



2

which would, in fact, desegregate schools, faculties, facil­
ities and eliminate or upgrade inferior schools.

The plaintiffs, Negro parents and children of Franklin 
County, North Carolina, filed on December 8, 1965, in the 
United States District Court for the Eastern District of 
North Carolina, this class action seeking injunctive relief 
against the defendant Franklin County Board of Educa­
tion in operating a racially segregated school system; 
plaintiffs also filed a motion for preliminary injunction 
seeking the admission of Negro school children to for the 
second half of the 1965-66 school year (2a-9a).1

On January 20, 1966, upon motions of the Attorney 
General of the United States, the District Court allowed 
the United States to (1) intervene as a party plaintiff, and 
(2) to add the individual members of the School Board as 
defendants (17a-20a).

Hearing on motions for a preliminary injunction com­
menced February 8, 1966. The principal issue raised by 
these motions was whether Negro students in grades still 
segregated under the Board’s desegregation plan should 
be allowed to transfer to all-white or predominantly all- 
white schools for the second semester of the 1965-66 school 
year. The School Board had failed to give proper notice 
of two criteria it would consider in granting or denying 
transfers to Negro students in non-desegregated grades. 
On February 21, 1966, the District Court denied the mo­
tions for preliminary injunction on the ground that it was 
not in the best interest of the minor plaintiffs to change 
school in mid-term, but found that the School Board had 
failed to give sufficient notice for lateral transfers (156a- 
161a).

1 References to Defendants’ Appendix are indicated herein by “ D. 
App.” and page number. Reference to Appellees’ Appendix are indi­
cated herein by the page number followed by the letter “a.”



3

At the hearing held on July 25, 1966, the principal issues 
raised were the adequacy and pace of faculty desegre­
gation and the adequacy of the “ free choice” method of 
desegregation in a community which was openly hostile 
to desegregation and in which acts of intimidation had 
taken place which inhibited the exercise, of choice by Negro 
students and their parents.

On July 27, 1966, following extensive conference between 
the court and counsel for all parties and on the basis of 
testimony and exhibits presented, the District Court en­
tered an Interim Order (162a-166a) requiring the School 
Board to conduct a special freedom of choice period for 
Negroes, since the Court had found that only 23 Negroes 
had elected to transfer out of all Negro schools for the 
1966-67 school year during the earlier choice period. The 
Board was further enjoined from considering race in 
staff and faculty assignments and employment (D. App. 
6A). The School Board was ordered to present to the 
Court on or before August 10, 1966, objective standards 
for the non-discriminatory employment, assignment and 
retention of teachers and other school personnel and to 
advise the Court of the number of teachers and students 
assigned to schools for the 1966-67 school year at which 
their race was in the minority.

After the School Board had filed its plan for the em­
ployment, assignment and retention of teachers and other 
school personnel (D. App. 43A), plaintiffs and United 
States filed their respective objections thereto. On April 
10, 1967, plaintiffs and the United States moved the court 
for an order requiring the School Board to eliminate 
disparities between predominantly white and Negro schools 
and to require the School Board to implement an effective 
desegregation plan; the motions alleged that fear, caused 
by threats and intimidation, was preventing Negro parents



4

and children from exercising an uninhibited “ free choice” ; 
that the Board was continuing to employ and assign 
teachers and school personnel on a racial basis; that the 
School Board was continuing to perpetuate inferior schools 
for Negro students; and that the Board was continuing 
the dual transportation system for Negro and white schools 
(182a).

On August 17, 1967, the court below entered its Order 
and Opinion (D. App. 6A-37A) after a full evidentiary 
hearing on July 25 and 26, 1967.

The Court found as a matter of law that the “ freedom 
of choice” plan used by the Board was totally ineffective 
to disestablish the segregated school system (28a-32a) and 
ordered the Board to submit a plan for the assignment of 
students on the basis of a unitary system of nonracial 
geographic attendance zones or a plan for the consolida­
tion of grades, or schools, or both; to refrain from pub­
licizing the names of and addresses of pupils assigned to 
any school; to disregard race in the hiring, assignment, 
reassignment, promotion, demotion, or dismissal of teach­
ers and other professional staff, except to eliminate past 
discriminatory patterns; to take immediate affirmative 
steps to accomplish substantial faculty desegregation for 
the 1967-68 school year; to eliminate racial discrimination 
in any service activity or program (including transporta­
tion, athletics or other extra-curricular activity); to cor­
rect disparities in buildings, equipment; and to eliminate 
student overcrowding between schools formerly designated 
all-white and all-Negro schools (D. App. 32A-37A).

The Board filed a notice of appeal on August 25, 1967 
and also a motion to stay execution of certain portions of 
the Order pending appeal (262a).

On September 5, 1967, the District Court denied the 
Board’s motion to stay but allowed the Board to delay filing



5

the plan and reports required by the Order until 30 days 
after March 1, 1968, or 30 days after decision on the appeal 
by the United States Court of Appeals for the Fourth Cir­
cuit, whichever event should first occur (271a).

After Notice of Appeal was filed, a group of Negro par­
ents moved to intervene as defendants in this action in 
the court below; subsequently a similar petition was filed 
by this group with, and is presently pending before, this 
Court. Plaintiffs have filed a response thereto opposing 
such petition as an untimely attempt to relitigate the deci­
sion below.

Statement

Since the School Board failed to summarize all the 
salient facts presented to the court below, plaintiffs deem 
it necessary to present this additional Statement of Facts 
to this Court.

Composition of the Franklin County School System

There are twelve schools in the Franklin County school 
system. Until the 1965-66 school year, five schools were 
officially designated as Negro schools—attended solely by 
Negro students and staffed exclusively by Negro teachers 
and administrators—and seven were officially designated as 
white schools—attended solely by white and staffed exclu­
sively by white teachers and administrators.

A  study was made on May 10, 12, 1967 of the Franklin 
County school system by William L. Stormer,2 a school

2 Mr. Stormer has a B.A. degree in Education from Youngstown Uni­
versity and an M.A. in Education Administration from the University of 
Wyoming. He did additional graduate work beyond the Master Degree 
in Educational Administration with an emphasis on school planning. 
Presently, the nature of Mr. Stormer’s work is the administration of 
school construction programs under Public Law 815; his primary job 
is to examine school construction projects, review and approve them both 
in the money aspect and construction where it pertains to educational



6

construction planning expert who is Assistant Chief of 
School Construction, Division of School Assistance, United 
States Office of Education (1036 et seq.).8

Mr. Stormer testified that the schools in four areas of 
Franklin County (Louisburg, Bunn, Youngsville and Gold 
Sand) are organized in groups and clusters of two or three; 
one is a traditionally white school and one or more tradi­
tionally Negro. Every Negro school is within a mile or so 
of a predominantly white school covering the same grades.* 3 4 
In two other parts of the county—Epsom and the general 
area of Edward Best High School and Edward Best Ele­
mentary School—there are white schools but no Negro 
schools. Several of the high schools are very small (Epsom, 
a white high and elementary school, had only 72 pupils 
enrolled in grades 9-12 for the 1966-67 school year), and 
only one or two are large enough to make diversified edu­
cational opportunities available to students at a reasonable 
cost per pupil (1040a-1042a).

Mr. Stormer further testified that he knew of no educa­
tional advantage to the maintenance of “pairs of schools”

planning. He has worked with the Bureau of Education in the State of 
Ohio and the State of West Virginia in school plant development and 
constructions. Mr. Stormer has reviewed or inspected several hundred 
school building's throughout the country and in a number of different 
states (1036a-1038a).

3 The School Board declined to cross-examine Mr. Stormer at the time 
of the taking of his deposition (1095a) or at the trial, and his testimony, 
is for the most part, uncontradieted.

4 By Mr. Schwelb:
Q. Where you referred to schools located close to one another, 

serving the same grades and same types of schools, what particular 
schools were you referring to, Mr. Stormer? A. Well, Youngsville 
[white] offers grades one to twelve. Youngsville Elementary [Negro] 
offers grades one to eight. Perry’s [Negro] offers grades one to 
twelve. Gold Sand [white] offers one to twelve; Louisburg [white] 
is one to twelve, and Riverside [white] is one to twelve, and in the 
same approximate area within this area is Cedar Street [Negro], 
which is one to seven (1041a).



7

offering the same grades which are located in the same 
general area. He knew of several disadvantages, including 
the sacrifice of program diversification, the incurrence of 
higher than necessary per pupil costs, and inefficient utili­
zation of school plants and equipment (1042a-1045a). Hav­
ing studied hundreds of school districts in many parts of 
the country, nowhere, he testified, was the “pairs of schools” 
tendency so pronounced as in Franklin County (1040a). 
Segregated athletic and other extra-curricular activities 
have also been left undisturbed. Mr. Stormer also testified 
that no undue practical difficulties would be presented were 
the School Board to adopt a program of school consolida­
tion, altering the educational programs in schools situated 
in close geographic proximity such that different grades 
would be taught in each, and coupling this reorganization 
with a plan of pupil assignment on the basis of residential 
proximity. This approach would provide an effective in­
ducement for correcting existing disparities in all-Negro 
and wholly or predominantly white schools, and provide 
as well, a context in which substantial student and faculty 
desegregation could be achieved (1079a).

Unequal Facilities and Programs

Eeports filed by the School Board with the State Board 
of Education presents striking statistical information which 
shows that the Board tolerated substantial inequalities be­
tween the segregated schools. As the following table shows, 
previously all-white schools are substantially superior in 
buildings and equipment to all-Negro schools; they have 
little or no problem of overcrowding, smaller classes, more 
library books per pupil and more acreage per pupil; the 
school buildings themselves have a substantially higher 
valuation, and their equipment and facilities are newer, 
in better repair, and more plentiful.



8

1965-66

Valuation of School
Property per pupil ..............

Acreage of School
Property per pupil ..............

Pupil-classroom Ratio ................
Library Volumes per pupil ......
Pupils per teacher (based

on enrollment) ..... ...................
Students per school bus................
And see: Stormer (1053a-1063a)

Despite improvements during the 1966-67 school year, 
attributable primarily to federal financial assistance under 
the Elementary and Secondary Education Act, serious dis­
parities remain.5 All of the wholly or predominantly white 
elementary schools are accredited by the State of North 
Carolina. No Negro elementary school is accredited.

The problem of overcrowding in Negro schools and the 
continued maintenance of small underutilized white schools 
is so expensive that teachers’ salaries are $350.30 per 
pupil in some classes—Epson High (white) as compared 
to others—$188 at Bunn (white), $231.09 at Perry’s (Ne-

Predominantly 
White Schools Negro Schools

$913.44 $285.18

.04 .01
22.8 to 1 34.9 to 1

9.05 4.0

24.9 31.8
43 64.1

5 In 1966-67, the School Board had received federal assistance in the 
form of portable classrooms, library books, and equipment of various 
kinds. The Board’s reports to the State Board o f Education for 1966-67 
disclosed that these additions reduced the disparities in several of these 
categories, in particular valuation of school property per pupil and li­
brary books per pupil, as follows:

1966-67

Valuation of School
Property per Pupil — 

Library Books per Pupil 
Pupils per Bus ..............

Predominantly 
White Schools

$991
9.3

40.2

Negro Schools

$611
5.1

54.7
In other categories, including acreage per pupil and teacher ratio, the 
disparities remained essentially unchanged from the 1965-66 school year.



9

gro) and $235.09 at Riverside (Negro) (1566a). Yet, the 
Board buses some Negro students 13 miles to Riverside 
High School which is overcrowded.

There are also disparities in course offering,6 extra­
curricular activities and athletic facilities7 in the separate 
schools.

School Desegregation in Franklin County

1. Pupil Desegregation

Prior to the 1965-66 school year the Franklin County 
school system was completely segregated by race. All 
white students attended schools staffed exclusively by 
white teachers and administrators. All Negro students 
attended schools staffed exclusively by Negro teachers 
and administrators. Students were assigned to schools 
pursuant to a dual system of geographic attendance zones 
— one for whites and one for Negroes.

In the 1965-66 school year The School Board adopted a 
desegregation plan pursuant to the Civil Rights Act of 
1964. The plan provided for desegregation under the 
“ freedom of choice” system of grades 1, 2, 9 and 12 for 
the year 1965-66 school year, and for the desegregation of 
the remaining grades in 1966-67.8 The plan further pro­
vided for lateral transfers9 in the nondesegregated grades 
for any applicant who could show either (a) that he 
desired to take a course of instruction not available in 
the school to which assigned, or (b) that he had either 
entered the school system, or a different geographical at­

6 (1044a-1045a).
7 (1055a-1058a).
8 Facially, the Franklin County plan provided for the desegregation of 

all grades in every school one year earlier than required by the guide­
lines promulgated by the Department of Health, Education and Welfare.

9 Lateral transfer refers to transfers allowed to students who were in 
grades not yet reached by the desegregation plan.



10

tendance zone, for the first time. The Board failed to 
give proper notice to students and their parents of the 
specified criteria, and those Negro students who did not 
specify one of these criteria were rejected.10

About 76 Negro students of a total of approximately 
3,100 in the system requested transfers to attend predom­
inantly white schools for the 1965-66 school year. Thirty- 
one were accepted. Of these thirty-one, several withdrew 
their applications during the summer; others withdrew 
from predominantly white schools after school opened. 
At the conclusion of the 1965-66 year, only six Negro 
students were attending predominantly white schools (D. 
App. 19A). During the 1966 choice period for which all 
grades were desegregated for the 1966-67 school year, 
twenty-three of the approximately 3,100 Negro pupils 
elected to attend predominantly white schools. No white 
student elected to attend a Negro school.

In July, 1966, the Negro plaintiffs and the United States 
were prepared to present evidence to the court below that 
because there were serious acts of hostility and intimida­
tion to school desegregation in the community (see infra 
pp. 13-17) a free choice desegregation plan was ineffective 
to desegregate the schools in Franklin County. However, 
after extensive discussion between the court and counsel, 
trial was postponed, and the cout entered an Interim Order 
in which the Board was ordered to conduct a new choice 
period and to use reasonable safeguards to prevent intimi­
dation (D. App. 9A).

In August, 1966, pursuant to the Interim Order of July 
27, 1966, the School Board conducted a special freedom of

10 The School Board appointed intermediary, Rev. Robert Latham, a 
white minister, testified that the criteria were adopted after the applica­
tions were filed and that this fact notwithstanding, the board ignored 
his recommendation that in fairness all lateral transfer requests be ac­
cepted (491a).



11

choice period for Negroes. During this special choice period 
an additional 49 Negroes elected, and were assigned to 
attend, predominantly white schools. During neither of the 
“choice periods” for the 1967-68 school year did any whites 
elect to attend Negro schools.

In March, 1967, the Board conducted a freedom of choice 
period for the 1967-68 school year. Forty-five Negroes 
elected to attend predominantly white schools and were 
scheduled to attend such schools for the 1967-68 school year.

The 1967 freedom of choice period was the fourth con­
ducted in Franklin County since 1965. On each of these 
occasions, all white students have elected to attend pre­
dominantly white schools, and the previously Negro schools 
have remained all-Negro in the composition of their stu­
dent bodies. Three of the seven traditionally white schools 
have never had a Negro student,11 a fourth has never had 
more than one Negro student,12 and a fifth has never had 
more than two Negro students, one of whom has dropped 
out.13 More than 98.5% of the Negro students in the Frank­
lin County system have remained in all-Negro schools 
throughout the period that the schools have been officially 
desegregated.

2. Faculty and Staff Desegregation

Prior to the entry of the Interim Order of July 27, 1966, 
by the court below, Negro teachers taught in all-Negro 
schools and white teachers taught in all-white or predomi­
nantly white schools.

By the terms of the Interim Order, the School Board was 
ordered to fill all faculty and professional staff vacancies

11 Edward Best Elementary, Gold Sand and Youngsville High.
12 Epsom.
13 Edward Best High School.



12

on a nonracial basis and to “ encourage” transfers by pres­
ent members of the faculty to schools within the system in 
which pupils are wholly or predominantly of a race other 
than that of the teacher.

Five teachers testified in this case—two Negro teachers 
called by the United States, and two white teachers and 
one Negro teacher called by the School Board. All testi­
fied that they had not been requested to transfer to a school 
in which their race was in the minority. Each testified to 
having expressed a choice for the school to which he was 
assigned; and several expressed a preference in favor of 
staying at their current schools because they had become 
accustomed to them. All five testified that they would be 
willing, if assigned, to teach in a school where their race 
was in the minority.14 *

Forty-nine new teachers were employed for the 1966-67 
school year, twenty-five of whom were white and twenty- 
four were Negro. This number represents more than 20% 
of the entire teaching staff in the County. The white teach­
ers were assigned to white schools and the Negro teachers 
were assigned to all-Negro schools (215a).

The policy of the Board is to assign teachers generally to 
the school of their choice (D. App. 46A). Most teachers 
have, accordingly, remained at the schools to which they 
had been assigned when the schools were completely racially 
segregated. Of the twelve schools in the Franklin County 
system, faculty desegregation has occurred in only three 
schools as follows: one white teacher and one white librar­
ian have been assigned to one all-Negro school, one Negro 
teacher and one Negro librarian have been assigned to 
predominantly white schools; three white staff members

14 Teachers: Massenburg (1002a); Anderson (1019a); Fleming (1226a);
Suitt (1216a); Griffin (1223a).



13

have been assigned to all Negro schools; and two Negro 
and four white staff members have been assigned to all the 
schools in the County system (D. App. 37-38). No school 
principal has been transferred to a school in which his race 
is in the minority. Faculties and staff of the schools in 
Franklin County remain almost entirely segregated, with 
the effect that each school in the county system is clearly 
racially identifiable by the composition of its faculty.

Intimidation, Harassment and Reprisals

The record shows that there has been a marked hostility 
to school desegregation in Franklin County.15 This hostil­
ity has been evidenced by a continuous, effective and widely 
publicized campaign of intimidations and reprisals directed 
against Negroes who have sought to effectuate school de­
segregation under a “ free choice” plan, and against white 
persons who have taken a public stand in favor of school 
desegregation.

Even before the Board had adopted a desegregation 
plan in 1965-66, attempts to desegregate the public schools 
in Franklin County resulted in threats against several 
Negroes involved. On September 16, 1963, after attending 
a meeting to discuss school desegregation with the Board, 
the foster children, Rev. Sidney 6. Dunston, a Negro min­
ister and civil rights worker, received an anonymous tele­
phone call threatening his home (274a-412a). During June, 
1964, eight Negro children applied for transfer to white 
schools (Franklin Times, 6/16/64) and the mother of one 
of the children seeking transfer was advised to stay off 16

16 See Chronology of Intimidation prepared by the United States (238a- 
257a). Although the Chronology lists acts of violence which occurred in 
the jurisdiction of the Franldinton City School Board, the court in the 
instant case ruled that he did not consider any of this activity in his 
Findings of Facts.



14

the property of her landlord or suffer the consequences 
(421a; 451a). Considerable publicity was given to Ku Klux 
Klan activity in 1964 (363a-364a, 1567a-1573a).

The Board took steps toward school desegregation for 
the first time in the 1965-66 school year; the choice period 
was conducted in the Spring of 1965. In June, 1965, the 
names of Negro families and students who had applied for 
transfer to white school were broadcast by the local radio 
(69a-71a) station and published in the Franklin Times (D. 
App. 69A-71A).16 From the beginning of the choice plan and 
throughout the 1965-66 school year, various forms of in­
timidations, harassment and threats were directed at the 
Negro community, particularly those Negroes directly en­
gaged in school desegregation efforts: explosions were set 
off near homes (605a, 674a, 760a-761a, 880a-890a); oil was 
put into wells (198a, 398a, 569a, 629a); shots were fired 
into homes (372a, 414a, 424a-428a, 1575a, 1596a) ;16 17 18 nails 
were strewn in the driveway of one of the Negro plaintiffs 
(411a, 499a, 567a) ;1S crosses were burned near several

16 The Franklin Times is a local newspaper of eonnty-wide circulation 
whose managing editor is Albert Clinton Fuller. Mr. Fuller is a member 
o f the School Board and is named as a party defendant to this action 
(18a).

17 E.g., on June 17, 1965, the Franklin Times carried a headline story 
on the shooting by allegedly unknown assailants into the homes of two 
Negro families (Lenwood Arrington and Sandy Jones) who had children 
to apply for transfers to white schools. Mrs. Irene Arrington testified: 
“Well, after the first shooting (May 28, 1965) I had a lot of telephone 
calls started around supper-time and would last until 11 :00 o’clock, and 
a lot of them would tell me, asked me was I trying to get white, why 
did I want my children to do to an all-white school. Some of them was 
telling me that something was going ‘to happen to you, you are going 
to get killed’ ” (428a-429a).

18 Rev. Luther Coppedge testified that nails were strewn in his drive­
way about 13 times sinee 1964 and that his automobile sustained a flat 
tire on two occasions as a result.



15

homes19 and eeonomie reprisals.20 Numerous threats were 
made; most often they were made by anonymous telephone 
callers, but occasionally they were delivered by anonymous 
letter or in person.21

The campaign of intimidations and threats neither ceased 
nor abated during the 1966-67 school year;22 it has been

19 Depositions of Driver (310a); Norwood (890a); Rev. Coppedge 
(565a-566a).

20 Negroes in Franklin County are particularly vulnerable to economic 
reprisal. They are readily identifiable, and as a group characteristic, are 
markedly dependent upon the white community economically (see 258a- 
259a).

Mrs. Irene Arring’ton, a plaintiff in this action and one of the eight 
Negroes who had applied for a transfer of her child to an all-white 
school in 1964 testified that, in June, after the applications were filed, 
St. Clarence Arrington, who also applied for transfer of his child, told 
her that he was withdrawing his application in fear of eviction by his 
landlord; he also told Mrs. Arrington that his landlord wanted her to 
stay off his land (421a).

Joseph Branch, Negro, was told by his employer to withdraw his 
grandchild’s transfer application or else the Klan might blow up the em­
ployer’s building. Branch complied (Branch: 691a-693a). Cecil Macon, 
a Negro employer relayed a telephone demand to Sidney Manley, his 
employee, that Manley withdraw his child’s application. Manley did so. 
(Macon: 328a-329a; Manley: 336a).

Mrs. Annie Esther Sattenvhite was discharged from her job tying to­
bacco. Mrs. Satterwhite had a child enrolled in Bunn (white). When she 
acknowledged this in response to her employer’s question, the employer 
told her she was fired because the employer did not believe in race mixing 
(410a). A co-worker of Mrs. Satterwhite, Mrs. Alveretta Moore, testified 
that Mrs. Satterwhite accurately recounted the incident (Moore: 411a).

21 Arringon’s deposition (428a-429a); Coppedge’s deposition (564a- 
565a); Dunston’s deposition (277a-278a). .Rev. Dunston also testified that 
on one occasion three white strangers in a truck decorated with Con­
federate flags drove into his driveway and asked his children to convey 
to him their threat on his life (Dunston: 278a-279a). In another instance 
a Negro girl who had applied to attend a predominantly white school 
found an anonymous letter in her mailbox threatening the lives of her 
parents (Crudup: 651a-652a; Exhibit 667a).

22 The church of Rev. Plummer Alston was dynamited. A  Negro min­
ister, Rev. Plummer is married to Rev. Luther Coppedge’s niece. (Re­
ported in the Franklin Times, 3/8/66) (Coppedge: 570a); (Alston:



16

directed against Negro homes, and Negro students attend­
ing predominantly white schools ;23 it has been directed, as 
well, against the few white citizens of the county who have 
dared to publicly support school desegregation.24 In the 
Interim Order of July 27, 1966, the District Court expressly 
enjoined any interference with the exercise of choice. In­
cidents of interference were to be reported to the United 
States Attorney, at Raleigh, North Carolina. Such efforts 
have been fruitless. The Federal Bureau of Investigation, 
as well as state and local law enforcement officials, has 
investigated most, if  not all, of the acts of intimidation 
which have taken place. To date, however, not a single 
arrest has been made (371a-379a).

In March, 1967, during the freedom of choice period for 
the 1967-68 school year, the intimidations intensified. Rev. 
Luther Coppedge, father of one of the Negro plaintiffs, 
testified that he received six to eight harassing, anonymous 
telephone calls a day. One call was received on the night of 
July 22, 1967, only three days prior to his testimony in 
the trial of this case (1279a).25 26

605a); (Exhibit, 611a). In May, 1966, sugar was put in the gas tank of 
Rev. Coppedge’s tractor (Coppedge: 569a, 570a, 762a, 1279a-1280a; 
Davis: 1273a).

23 Jerome Cheek, one of six Negroes in predominantly white schools, re­
ceived two threatening racial notes at school; and oil was placed in the 
well at his home on two separate occasions ( Cheek: 628a-630a; see also: 
Fogg: 825a-826a).

24 During the spring and summer of 1966, large nails were placed in the 
driveway of Rev. Lathan’s home. Rev. Latham, a white minister, had 
been speaking out against the Ku Klux Klan and urging, both publicly
and privately, that Negro transfer applications be treated fairly. (Latham, 
499a). In July, crosses were burned at the home of Rev. Wood also a 
white minister (Wood, 535a), and Rev. Latham (Latham, 499a).

26 More recently, the Raleigh News and Observer reported that the home 
of Rev. Coppedge was fired into the evening the District Court’s Order 
and Opinion of August 17, 1967 was publicized. Rev. Coppedge’s home 
was fired into again, it was reported, Christmas evening of December, 
1967.



17

Since the beginning of freedom of choice plan in 1965, 
there has been a decline each year in the number of Negro 
students requesting reassignment to previously all-white 
schools—1965-66: 76 applied, 31 were accepted, at the end 
of the school year only 6 remained; 1966-67:72 applied 
although there were two choice periods for the school year; 
1967-68: only 45. For the 1967-68 school year only 1.5% of 
3,100 Negro students are attending desegregated classes in 
Franklin County.

Questions Presented

1. Whether—13 years after Brown v. Board of Educa­
tion—a school board may adequately discharge its obli­
gation to desegregate a school system under a freedom of 
choice plan where the evidence shows that such a plan is 
not likely to disestablish the dual system because of overt 
acts of hostility, intimidation, and reprisals against Ne­
groes in the community effectively inhibit meaningful 
exercise of choice.

2. Whether a district court may, as a matter of consti­
tutional law, order a school board to abandon a freedom 
of choice desegregation plan and to adopt some other plan 
which is educationally, financially and administratively 
more feasible and which would immediately produce mean­
ingful desegregation where the evidence shows that a free­
dom of choice plan engrafted on a purposefully designed 
segregated system is not likely to disestablish the dual 
schools.

3. Whether the evidence supports the findings of the 
court below that the freedom of choice desegregation plan 
in this case was not likely to produce meaningful desegre­
gation.



18

ARGUMENT

I.

There Was Sufficient Evidence to Support the Dis­
trict Court’s Conclusion That Desegregation Under a 
Free Choice Plan in Franklin County Was an Illusion.

The School Board’s main argument on this appeal is 
the evidence was insufficient to support the district court’s 
finding that: (1) there was marked hostility to school de­
segregation in Franklin County; (2) after free choice had 
been adopted by the School Board, acts of intimidation, 
threats, and reprisals against Negro parents, several Ne­
gro parents withdrew their request for assignments of their 
children to previously all-white schools; and (3) the com­
munity’s attitudes and pressures in the Franklin County 
school system effectively inhibited the exercise of free 
choice by Negro pupils and their parents.

The standard for review of the findings of a trial court 
sitting without a jury is set out in Rule 52(a) of the Fed­
eral Rules of Civil Procedure, which provides in pertinent 
part:

Findings of fact shall not be set aside unless clearly 
erroneous, and due regard shall be given to the oppor­
tunity of the trial court to judge of the credibility of 
witnesses.

See also United States v. United States Gypsum Co., 333 
U.S. 364 (1948). Like any other issue of fact, final deter­
mination requires a balancing of credibility, persuasiveness 
and weight of evidence. Where the court is sitting with­
out a jury, this determination is to be decided by the trial 
court and that court’s decision, under general principles



19

of appellate review should not be disturbed unless clearly 
erroneous. Graver Tank and Mfg. Co. v. Linde Air Prod­
ucts Co., 339 U.S. 605, 609-610 (1950). In the overwhelm­
ing majority of cases where appellate courts have applied 
the clearly erroneous rule a strong presumption exists in 
favor of the trial court’s findings of fact.26

This Court need not engage in the presumption that the 
findings of fact made by the court below abridged the 
clearly erroneous rule. The findings of fact made by the 
court below that intimidation, harassment and economic 
reprisals effectively inhibited free choice in the Franklin 
County school system are amply documented by deposi- 
tional and oral testimony, exhibits and statistical evidence 
of a substantial number of witnesses. There is also un­
contradicted evidence that the intimidations, harassments 
and economic reprisals caused Negro students or their 
parents to withdraw from enrollment in predominantly 
white schools. Moreover, since the School Board has chal­
lenged the sufficiency of the evidence to support the find­
ings of the court below, plaintiffs and the United States 
have found it necessary to reproduce a substantial portion 
of a record as an appendix in order to show this Court 
that the sufficiency argument of the School Board is with­
out merit.

26 E.g.: “ The findings of the court are presumptively correct and will 
not be set aside unless resulting from an erroneous view of the law or 
are clearly against the weight of the substantial evidence, and in consid­
ering this question we view the evidence in the light most favorable to 
the prevailing party, the burden being on the unsuccessful party to show 
that the evidence compelled a finding in his favor.” Anderson v. Federal 
Cartridge Corp., 156 F.2d 681, 684 (8th Cir. 1946). “ It is idle to try 
to define the meaning of the phrase ‘clearly erroneous’ ; all that can be 
profitably said is that an appellate court, though it will hesitate less to 
reverse the finding o f a judge than that of an administrative tribunal or 
of a jury, will nevertheless, reverse it most reluctantly and only when 
well persuaded.” Hand, J. United States v. Aluminum Co. of America, 
148 F-2d 416, 432 (2nd Cir. 1945) ; see also West v. Schwarz, 182 F.2d 
721 (7th Cir. 1950); 5 Moore’s Federal Practice §52.03, Note 21.



20

II.
The Record Clearly Showed That a Freedom o f 

Choice Plan Was Not Likely to Disestablish the Dual 
School System in Franklin County.

The School Board seems to contend (Brief, pp. 33-34) 
that the Order of Judge Butler requiring the Board to 
submit a desegregation plan providing for either a uni­
tary system of nonracial geographic attendance zones or 
the consolidation of grades, schools, or both, deprives 
Negro and white students of a constitutional right to select 
the school of their choice under a freedom of choice plan. 
There is no such right.

Although freedom of choice desegregation plans have 
been approved by this Court and other courts, see e.g., 
Bowman v. County School Board of Charles County, Va., 
382 F.2d 326 (4th Cir. 1967); Bradley v. School Board of 
City of Richmond, 345 F.2d 310 (4th Cir. 1965), vacated 
and remanded, on other grounds, 382 U.S. 103; United 
States v. Jefferson County Board of Education, 372 F.2d 
836 (5th Cir. 1966), aff’d with modifications on rehearing 
en banc, 380 F.2d 385 (1967), cert, denied sub nom. Caddo
Parish School Board v. United States, ------  U.S. ------
(1967), the measure which has been judicially developed 
to determine the acceptability of a freedom of choice plan 
—or, for that matter, any desegregation plan—is whether 
the plan results in actual desegregation.27 The United 
States Department of Health, Education and Welfare 
(HEW) has also taken the position that a freedom of

27 In United States v. Jefferson County Board, the Fifth Circuit stated 
the standard thusly: “ The only school desegregation plan that meets con­
stitutional standards is one that works.”  372 F.2d at 847 (emphasis in 
the original). See also Lee v. Macon County Board of Education, 267 
F. Supp. 458 (M.D. Ala. 1967).



21

choice plan must work, i.e., it must result in actual de­
segregation. And under the Revised Statement of Policies 
for School Desegregation Plans under Title VI of the 
Civil Rights Act of 1964 (45 C.F.R. Part 181.54), the 
Commissioner has the power, where the results under a 
free choice plan continue to be unsatisfactory, to require, 
as a precondition to making available further federal 
funds, that the school system adopt a different type of 
desegregation plan.28

A. Free Choice in Franklin Perpetuated the Dual System.

The adequacy of a particular desegregation plan fre­
quently cannot be judged by examining only the four cor­
ners of the plan. Courts have recognized that various 
factors, some subtle and some not so subtle, may operate 
in such a way with a freedom of choice plan, that rather 
than eliminating a segregated school system, works to 
perpetuate the segregated system. Recently this Court 
stated in Bowman v. County School Board, supra at pp. 
327-28, that:

Whether or not the choice is free may depend upon 
circumstances extraneous to the formal plan of the 
school board. If there is a contention that economic 
or other pressures in the community inhibit the free 
exercise of the choice, there must be judicial appraisal 
of it, for “ freedom of choice”  is acceptable only if 
the choice is in the practical context of the exercise. 
If there are extraneous pressures which deprive the 
choice of its freedom, the school board may be required 
to adopt affirmative measures to counter them. (Em-

28 Although administrative regulations are not binding on courts deter­
mining rights under the Fourteenth Amendment, nonetheless, they are 
entitled to great weight. United States v. Jefferson Corny Board, 372 
F.2d at 847; Bowman v. County Board of Education, supra at 328.



22

pliasis supplied.) See also Kiev v. County School 
Board of Augusta County, 249 F. Supp. 239 (W.D. Va. 
1966).

Some of the “ economic and extraneous pressures” which 
inhibit choice under a “ free choice” plan are listed in a 
recent report issued by the United States Commission on 
Civil Rights:

3. The slow pace of integration in the Southern 
and border States is in large measure attributable to 
the manner in which free choice plans—the principal 
method of desegregation adopted by school districts 
in the South—have operated.

4. Freedom of choice plans accepted by the Office 
of Education have not disestablished the dual and 
racially segregated school systems involved, for the 
following reasons:

a. Negro and white schools have tended to retain 
their racial identity;

b. White students rarely elect to attend Negro 
schools;

c. Some Negro students are reluctant to sever 
normal school ties, made stronger by the racial 
identification of their schools;

d. Many Negro children and parents in Southern 
States, having lived for decades in positions of 
subservience, are reluctant to assert their rights;

e. Negro children and parents in Southern States 
frequently will not choose a formerly all-white school 
because they fear retaliation and hostiliity from the 
white community;

f. In some school districts in the South, school 
officials have failed to prevent or punish harassment



23

by white children of Negro children who have elected 
to attend white schools;

g. In some areas in the South where Negroes 
have elected to attend formerly all-white schools, 
the Negro community has been subjected to re­
taliatory violence, evictions, loss of jobs, and other 
forms of intimidation.

5. In some areas in the South, as the result of the 
harassment of Negro children electing* to attend white 
schools and the intimidation to which the Negro com­
munity was subjected, all or many of the Negro chil­
dren who originally had elected to attend white schools 
returned to the Negro schools.29

Plaintiffs contended, the testimony, exhibits and statis­
tical evidence showed, and the court below found that all 
of the “ economic and extraneous pressures” enumerated 
by the Civil Eights Commission above were present in 
the Franklin County community which made “ free choice” 
illusory and meaningless.

The Board in the instant case did not take any steps 
toward desegregating the schools until shortly before the 
1965-66 school year—more than ten years after the Su­
preme Court held that segregation in public schools is un­
constitutional.30 When the Board did act, it adopted a 
freedom of choice plan pursuant to the HEW Eevised 
Guidelines. The Revised Guidelines suggests that systems 
using free choice plans for at least two years should ex­

29 U.S. Commission on Civil Rights, Survey o f School Desegregation in 
Southern and Border States, 1965-66 (February, 1966), p. 51. The Civil 
Rights Commission has made studies of school desegregation in Southern 
and border states over the past several years.

30 Brown v. Board of Education, 347 U.S. 483 (Brown I ) ;  349 U.S. 
294 (Brown II).



24

pect 15-18% of the pupil population to have selected de­
segregated schools. However, after free choice was first 
adopted in Franklin County, instead of increasing with 
each passing year, there has been a decline each year 
successive in the number of Negro students requesting re­
assignment to desegregated schools. In 1965-66, 76 Negroes 
applied to transfer to previously all-white schools; 31 were 
accepted, but at the end of the school year, only six Negroes 
remained in all white-schools. For the 1966-67 school year, 
only 72 out of approximately 3,100 Negroes applied, al­
though there were two choice periods for the school year. 
For the 1967-68 school year, only 45 Negroes applied for 
transfer. As of the 1967-68 school year, only 1.5% of 
Negro students were attending desegregated classes in 
Franklin County; no white student has ever elected to at­
tend or applied to transfer to an all-Negro school, nor has 
the Board assigned any white student to an all-Negro 
school.

This 1.5% is far less than the percent of desegregation 
in the whole State of North Carolina. Even the percentage 
of desegregation for the State of Mississippi was higher 
than that for Franklin County. The court below was justi­
fied in considering the gross disparity between the per­
centage of Negroes in desegregated schools in Franklin 
County as compared to all of North Carolina (or the Re­
vised Guidelines percentages) to raise the inference that 
free choice was not working as it should to provide a uni­
tary nonsegregated system. See United States v. Jefferson 
County Board, 372 F.2d at 887, and cases cited in n. 108.

Faculty and staff desegregation is an integral part of a 
free choice desegregation plan. Bradley v. School Board 
of Richmond, 382 U.S. 103 (1965); Roger v. Paul, 382 U.S. 
198 (1965); Wheeler v. Durham City Board of Education, 
363 F.2d 738 (4th Cir. 1966). The evidence regarding the



25

assignment of faculty and staff also reveals that free choice 
was insufficient to desegregate the system.

Prior to the 1966-67 school year, Negro schools had all- 
Negro faculties and staff and white schools had all-white 
faculties and staff. The School Board was ordered to fill 
faculty and staff vacancies on a nonracial basis and to 
encourage transfers across racial lines by the Interim 
Order entered July 27, 1966 (164a). Between the time of 
the Interim Order and the order from which this appeal 
is taken (August 17, 1967), the Board had ample oppor­
tunity to effectuate significant faculty and staff desegrega­
tion. The Board hired 49 new teachers (25 white, 24 Negro) 
into the system for the 1966-67 school year (215a); the 
white teachers were assigned to all-white schools and the 
Negro teachers were assigned to all-Negro schools. The 
“ encouragement” the Board gave teachers already in the 
system consisted primarily of meeting with the teachers 
and reading a copy of the Interim Order and of advising 
the teachers that they would be assigned to the school of 
their choice. Nine of twelve schools in the system remain 
totally segregated as to the faculty. In the other three, 
desegregation is at best token: one Negro librarian at 
each of two white schools, and a white librarian and a 
white English teacher, who taught only five hours a week, 
assigned to the one all-Negro school.

Several Negro students testified that they withdrew their 
applications for transfer to desegregated schools because 
they were reluctant to sever school ties created by racial 
identification of their schools; others testified that Negro 
students who had transferred to desegregated schools had 
been harassed by white students and faculty; there was also 
testimony that some Negroes who had transferred to de­
segregated grades returned to all-Negro schools because 
of harassment and intimidation (628a, 926a, 1589a).



26

B. Intimidation, Harassment and Reprisals Against 
the Negro Community Further Made Free Choice 
Inadequate.

Plaintiffs submit that the above enumerated factors alone 
would be sufficient to show that free choice did not and 
could not desegregate the schools in Franklin County; 
however, the principal ground relied on by the court below 
was the existence of community hostility which resulted in 
acts of intimidation, harassment, economic reprisal being 
directed against the Negro community and particularly, 
Negroes who were seeking a desegregated education.

The court found, inter alia, that:

11. Since the beginning of the freedom of choice 
plan in 1965, there has been a decline each year in the 
number of Negro students requesting reassignment to 
previously all-white schools. During 1966-67 in North 
Carolina, 54,600 of 409,707 Negro students attended 
desegregated schools, representing 15.4 percent. The 
percentage in Mississippi was 2.5 percent. In the 
Franklin County School system for the coming year, 
1967-68, the percentage is presently fixed at about 1.5 
percent.

12. Community attitudes and pressures in the Frank- 
tin County School system have effectively inhibited the 
exercise of free choice of schools by Negro pupils and 
their parents. (D. App. 24a-25a) (Emphasis added).

The School Board attacks the sufficiency of the evidence 
to support this finding (Brief, p. 25), but the evidence 
clearly shows that there has been marked hostility in 
Franklin County before31 and after the Board adopted a

31 In 1963, a Negro minister who had signed a petition to the Board 
requesting the Board to desegregate the school received an anonymous 
call threatening his home (274a-412a). In 1964, a Negro mother who



27

free choice plan in 1965—even np to three days before the 
trial of the case.

The Board could not, in good faith, have hoped that 
enough students would choose the school previously closed 
to them to truly desegregate the system where the attitude 
of the community had already strongly evidenced opposi­
tion to desegregation. It is reasonable to infer that the 
Board was aware of the community’s strong opposition 
to the school desegregation. The managing editor of the 
Franklin Times, the major newspaper in the county, was 
also a member of the Board. The Franklin Times had 
chronicled the activities of the Klan, the efforts made by 
Negroes to seek a desegregated education and the harass­
ment received by such persons. Moreover the Board for 
several years prior to the adoption of free choice had 
operated under the North Carolina Pupil Enrollment Act, 
under which any student could, presumably, as in free 
choice, choose any school. When the Board adopted free 
choice, no Negro student had been allowed to transfer to 
the white schools, although Negroes had applied for such 
transfers in 1964 and had been denied by the Board (66A- 
67A; 1537a-1538a).

Acts of intimidations and harassments occurred at the 
very beginning of free choice plans. The Franklin Times 
published the names of Negro applicants and their fam­
ilies in 1965 shortly after free choice was adopted (D. App. 
69A-71A). Following the publication of the names, many 
of the Negro applicants and their families w'ere victims of 
intimidation and harassment. The acts of intimidations, 
harassments and reprisals which took place in the corn-

had applied for transfer for her child to an all-white school was threatened 
by her landlord (421a, 451a). Considerable publicity was given to Ivu 
Klux Klan activity, such as cross burnings, rallies and intimidations 
(363a-364a; 1567a-1574a).



28

munity, at times more intensified than others, consisted o f : 
explosions set off near homes; oil put into wells; shots 
fired into homes; nails strewn in driveways of Negro 
applicants; crosses burned; parents of Negro children who 
had applied for transfers were subject to economic re­
prisals, and a number of Negroes received anonymous and 
threatening telephone calls (see supra pp. 13-17). The 
Franklin Times reported a substantial number of these inci­
dents (1575a-1587; 1591-1607).32 The record demonstrates 
that the court went to great lengths to give the Board an 
opportunity to show that a freedom of choice plan could 
effectively disestablish the dual system. Four choice 
periods were held during the more than two years that 
freedom of choice has been in operation; instead of an 
increase in the number of Negro students attending de­
segregated grades each year, there was an actual de­
crease of the number of students who had applied for 
transfer. There was not meanginful faculty desegregation. 
The choice of Negro parents and students were effectively 
inhibited by the acts of intimidation and harassment. 
Given the dimension of the intimidation, harassment and 
other acts of violence, two years was more than enough 
time to show that free choice was ineffective to disestab­
lish segregation in Franklin County.

32 Evidence of the publicity which the acts of intimidation received 
was offered in conjunction with evidence that Negroes in the community 
were likely to, and, in many instances, did hear of these incidents; and 
that this information tended to have a substantial effect on their exercise 
of choice. As such the trial court could admit evidence of the publicity 
which acts of intimidation received as an exception to the hearsay evi­
dence rule. See McCormick, Evidence §228.



29

III.

A Freedom of Choice Plan Is Constitutionally Un­
acceptable Where There Are Other Methods Which Are 
Educationally, Financially and Administratively More 
Feasible and Which Would More Speedily and Substan­
tially Disestablish the Dual System.

After Brown v. Board of Education, 349 U.S. 294, 
southern school boards were faced with the problem of 
effectuating the transition to a racially nondiserimina- 
tory system (Brown II  at 301). The easiest method was 
to convert the dual attendance zones, drawn according to 
race, into single attendance zones without regard to race, 
so that assignment of all students would depend only on 
proximity and convenience. With rare exception, however, 
southern school boards, when finally forced to begin the 
desegregation process, rejected this relatively simple 
method in favor of the complex and discriminatory pro­
cedures of pupil placement laws, and when these were 
invalidated, switched to what has in practice worked the 
same way as the so-called freedom of choice plans.33

Under the freedom of choice plans of desegregation 
students are given a privilege rarely enjoyed in the past, 
the opportunity to attend the school of their choice. Not 
only are such plans more difficult to administer, they are 
in addition, far less likely to disestablish a dual school 
system.34

33 According to the Civil Rights Commission, the vast majority of school 
districts in the South use freedom of choice plans. See Southern School 
Desegregation, 1967, a report of the U.S. Commission of Civil Rights, 
July 1967, p. 71.

34 As Judge Heebe said: “Free choice systems, as every southern school 
official knows, greatly complicate the task of pupil placement in the 
system and add to the tremendous workload of the already overburdened 
school official.”  Moses v. Washington Parish School Board, C.A. No. 5973 
(B.D. La., October, 1967).



30

Under free choice plans the extent of actual desegrega­
tion varies with the number of students seeking and ac­
tually being permitted to transfer to schools previously 
maintained for the other race. It should have been ob­
vious, however, that white students, in view of the general 
notions of Negro inferiority and the hard fact that in 
many areas Negro schools are vastly inferior to those 
furnished for white, would not seek transfers to formerly 
Negro schools. Indeed, the evidence in the instant case 
shows that no white has elected to apply for transfer to an 
all-Negro school under the free choice plan. Thus, from 
the very beginning, the burden of disestablishing the dual 
system under free choice plans was thrust squarely upon 
the Negro children and their parents despite the admoni­
tion of the Supreme Court in Brown II  that school authori­
ties have the primary responsibility for desegregating the 
school.35 Although court after court has stated this prin­
ciple, these courts have given judicial approval to freedom 
of choice plans.

°5 “ School authorities have the primary responsibility for elucidating, 
assessing, and solving these problems [e.g., local school problems 
which might arise as a result of efforts to implement the constitu­
tional principles enunciated] courts will have to consider whether 
the action of school authorities constitutes good faith implementa­
tion of the governing constitutional principles.”

*  * *  # # *

The burden rests upon the defendants to establish that such time 
is necessary in the public interest and is consistent with good faith 
compliance at the earliest practicable date. To that end, the courts 
may consider problems related to administration, arising from the 
physical condition of the school plant, the school transportation 
system, personnel, revision of school districts and attendance areas 
into compact units to achieve a system of determining admission 
to the public schools on a nonraeial basis, and revision of local laws 
and regulations which may be necessary in solving the foregoing 
problems.”  Brown IT (349 U.S. 294, 299)



31

The freedom of choice plan adopted by the School Board 
in the instant case placed the burden of disestablishing the 
Franklin County school system on the Negro pupils and 
their parents. To be sure each pupil was given the right, 
facially, to attend any school in the system, but as previ­
ously noted, desegregation never occurred except by trans­
fer by Negroes to white schools. Thus, the freedom of 
choice plan used by the Board prior to the court order of 
August 17, 1967, like all other plans, placed the burden of 
achieving a single unitary system upon the Negro citizens.

The obligation of a school board in the mid-60’s is to 
adopt that plan which would more speedily accomplish the 
effective desegregation of the system. The sequence of 
responsibility in desegregating a school system is, first, 
that of local school authorities, then the local district 
courts, and if need be, appellate courts (Brown 11) ■ Arm­
strong v. Board of Education of the City of Birmingham, 
333 F.2d 47 (5th Cir. 1963). Where the local school au­
thorities have failed to take the initiative, as the School 
Board did in the instant case,36 then the responsibility 
devolves to the district court. In the instant case the 
district court assumed that responsibility and ordered the 
School Board to adopt a plan other than a free choice 
plan. We quite willingly concede that a court should not 
enforce its will where alternative methods are not likely 
to produce dissimilar result—that much discretion should 
still be in the province of the school board. We submit, 
however, that a court may not—at this late date, in the 
absence of persuasive evidence showing the need for delay 
—permit the use of any plan other than one which would

36 Even on appeal, the School Board is urging that where a school 
board has failed to adopt an effective desegregation plan, a court does 
not have the power to require the board to adopt a plan drawn up by 
the court. (Brief, p. 33.)



32

more speedily and effectively desegregate the system. Put 
another way at this point, that method must be mandated 
which will do the job more quickly and effectively.

When free choice plans were initially conceived, courts 
generally adhered—mistakenly, we submit—to the belief 
that it was sufficient to permit each student an unrestricted 
free choice of schools. The notion that the making avail­
able of an unrestricted choice satisfies the Constitution, 
quite apart from whether a significant number of white 
students choose Negro schools or Negro students choose 
white schools, is, we submit, fundamentally inconsistent 
with the decisions of this Court in Brown I and II. Cooper 
v. Aaron, 358 U.S. 1; Bradley v. School Board of the City 
of Bichmond, 382 U.S. 103, and the entire series of school 
cases it has decided.

The test for any school desegregation plan is whether 
the plan achieves substantial desegregation which is con­
stitutionally required and that a plan not accomplishing 
this result must be abandoned and another substituted. 
Cf. Bowman v. County School Board, supra. This Court 
has not held, nor did the Fifth Circuit in Jefferson hold, 
and we do not urge, that freedom of choice plans are un­
constitutional per se. Indeed, in areas where residential 
segregation is substantial and entrenched, a free choice 
plan might well be the most effective method of desegre­
gation. Bather, our opposition is that a freedom of choice 
plan is not an adequate desegregation plan (Brown II, 
supra, 349 U.S. at 301) if there is another plan equally 
feasible to administer which will more speedily and effec­
tively disestablish the dual school system. Moses v. Wash­
ington Parish School Board, supra; Corbin v. County
School Board of Loudoun County, P a .,------ F. Supp._____
C.A. No. 2737 (E.D. Va. August 29, 1967).



33

Evidence was presented to the court below which clearly 
showed that there were alternative methods which the 
Board could have implemented that were less difficult to 
administer than a freedom of choice plan which would 
more speedily disestablish the segregated school system.

Mr. Stormer, a school construction planning expert 
whose testimony was largely uncontradicted, testified that 
the schools in Franklin County were located in four prin­
cipal areas; that schools in each area were organized in 
clusters of two’s or three’s—one or more traditionally 
white and one or more traditionally Negro; that each 
school, Negro or white, within each area was located within 
a mile of each other covering the same grades. Before 
the Board adopted a freedom of choice plan in 1965, stu­
dents were assigned to schools based on dual geographic 
zones—one zone used to assign Negro students to Negro 
schools and a different zoning procedure used to assign 
white students to white schools.

When the Board decided to adopt a desegregation plan— 
albeit more than ten years after the mandate of the Su­
preme Court in the Brown decisions—a more efficient 
method would have been to assign students to schools on 
a unitary, nonracial geographical zoning plan. As Judge 
Heebe said in Moses v. Washington Parish School Board, 
supra:

If [one had to pick] a method of assigning students 
to schools within a particular district [heretofore 
having used dual geographic zones], bearing very un­
usual circumstances [one] could imagine no method 
more inappropriate, more unreasonable, more need­
lessly wasteful, in every respect than the so-called 
‘free choice’ system. (Emphasis added.)



3 4

Mr. Stormer testified that consolidation of side-by-side 
schools, with the facilities of each used for some grades, 
was feasible and educationally advantageous and would 
automatically desegregate the schools (1078a-1079a; 1042a 
et seq.; 1556a). He also testified that administrative con­
venience would adhere in a geographical zoning plan which 
would likewise eliminate the dual system (1074a-1079a). 
The court below ordered the School Board to adopt one 
or both of these methods only after the court had found 
that a freedom of choice plan was incapable of desegregat­
ing the schools. Plaintiffs submit that the method proposed 
by the court was the more appropriate, reasonable, and 
efficient method for desegregating the schools in Franklin 
County.



35

CONCLUSION

Since the Franklin County school system was not, and 
has not been, effectively desegregated as required under 
Broivn v. Board of Education under a free choice plan, 
and the Board has not presented any other adequate plan, 
the district court properly ordered that certain basic ele­
ments be included in the plan the Board is to submit. As 
a court of equity obligated to provide adequate relief 
for a wrong, it could do no less. Therefore, the district 
court’s order should be upheld.

Respectfully submitted,

J a c k  G reenberg

J am e s  M. N a b r it , III
R obert B elto n

J am e s  N. F in n e y

10 Columbus Circle
New York, New York 10019

J . L eV o n n e  C h am be rs

405% East Trade Street 
Charlotte, North Carolina

C onrad  0 .  P earson

203% East Chapel Hill Street 
Durham, North Carolina

Attorneys for Plaintiffs-Appellees



MEILEN PRESS IN C  — N. Y. C .« ^ ^ » 2 1 9