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

    Isr t h e

i>uprmp (Emtrt of %  lotted States
O ctober T e r m , 1969 

No........................

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

v.
Petitioners,

C harlotte-M ecklenburg  B oard 
of E ducation , et al.

APPENDIX TO PETITION FOR CERTIORARI 
OPINIONS BELOW

J ack  G reenberg 
J am es M . N abrit , III 
N orm an  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

J. L eV onne  C ham bers 
A dam  S te in

C h am bers , S te in , F erguson & L an n in g  
216 West Tenth. Street 
Charlotte, North Carolina 28202

C. 0. P earson

203XA East Chapel Hill Street 
Durham, North Carolina 27702

Attorneys for Petitioners



I N D E X

PAGE

Opinion and Order Dated April 23, 1969, Regarding 
Desegregation of Schools of Charlotte and Mecklen­
burg County, North Carolina .....................................  la

Order dated June 3, 1969 ................................................  40a

Order Adding Additional Parties, dated June 3,1969 .... 44a

Opinion and Order dated June 20, 1969 ....... ........ ..........  46a

Supplemental Findings of Fact in Connection With 
the Order of June 20, 1969 (Dated June 24, 1969) .... 57a

Order dated August 15, 1969 ........................................... 58a

Order dated August 29, 1969 .............................. .............. 72a

Order dated October 10, 1969 ........................................... 75a

Order dated November 7, 1969 ........ ................................. 80a

Memorandum Opinion dated November 7, 1969 ........... 82a

Opinion and Order dated December 1, 1969 ..................  93a

Order dated December 2, 1969 ........................................ 112a

Order dated February 5, 1970 ............... ......................... 113a

Amendment, Correction or Clarification of Order of 
February 5, 1970, dated March 3, 1970 ........................134a

Court of Appeals Order Granting Stay Order of March 
5, 1970 .............................................................................135a



11

PAGE

Supplementary Findings of Fact dated March 21,
1970 ................................................................................. 136a

Supplemental Memorandum dated March 21, 1970 ....... 159a

Order dated March 25, 1970 .......  177a

Further Findings of Fact on Matters Raised by the 
March 26, 1970, Motions of Defendants dated April 
3, 1970 .............................................................................. 181a

Opinions of Court of Appeals dated May 26, 1970 .......184a

Order of Three-Judge District Court dated April 29,
1970 ................................................................................. 227a



P re lim in a r y  S u m m a r y

The case, originally filed in 1965, is now before the 
court under the “ M otion  for F u r th e r  R elief”  filed by the 
plaintiffs on September 6, 1968. The motion seeks greater 
speed in desegregation of the Charlotte-Mecklenburg 
schools, and requests elimination of certain other alleged 
racial inequalities. Evidence was taken at length on March 
10, 11, 12, 13, 17 and 26, 1969. The file and the exhibits are 
about two and one-half feet thick, and have required con­
siderable study. In brief, the results of that study are 
as follows:

The Charlotte-Mecklenburg schools are not yet desegre­
gated. Approximately 14,000 of the 25,000 Negro students 
still attend schools that are all black, or very nearly all 
black, and most of the 24,000 have no white teachers. As 
a group Negro students score quite low on school achieve­
ment tests (the most objective method now in use for 
measuring educational progress); and the results are not 
improving under present conditions. The system of assign­
ing pupils by “neighborhoods,” with “ freedom of choice” 
for both pupils and faculty, superimposed on an urban 
population pattern where Negro residents have become 
concentrated almost entirely in one quadrant of a city of 
270,000, is racially ■ discriminatory. This discrimination 
discourages initiative and makes quality education impos­
sible. The quality of public education should not depend 
on the economic or racial accident of the neighborhood in 
which a child’s parents have chosen to live—or find they 
must live—nor on the color of his skin. The neighborhood 
school concept never prevented, statutory racial segrega-

O pin ion  and O rder dated A p ril 2 3 ,  1 9 6 9  Regarding
D esegregation o f  Schools o f  Charlotte and

M ecklenburg County, N orth  Carolina

la



2a

tion; it may not now be validly used to perpetuate segre­
gation.

Since this case was last before this court in 1965, the 
law (or at least the understanding of the law) has changed. 
School boards are now clearly charged with the affirmative 
duty to desegregate schools “ now”  by positive measures. 
The Board is directed to submit by May 15, 1969 a positive 
plan for faculty desegregation effective in the fall of 1969, 
and a plan for effective desegregation of pupil population, 
to be predominantly effective in the fall of 1969 and to be 
completed by the fall of 1970. Such plan should try to avoid 
any re-zoning which tends to perpetuate segregated pupil 
assignment. The Board is free to consider all known ways 
of desegregation, including bussing (the economics of which 
might pleasantly surprise the taxpayers) ; pairing of grades 
or of schools; enlargement and re-alignment of existing 
zones; freedom of transfer coupled with free transporta­
tion for those who elect to abandon de facto segregated 
schools; and any other methods calculated to establish ed­
ucation as a public program operated according to its own 
independent standards, and unhampered and uncontrolled 
by the race of the faculty or pupils or the temporary hous­
ing patterns of the community.

T h e  L aw  W h ic h  G overns

This case vitally affects 83,000 school children of Char­
lotte and Mecklenburg County—and their families. That 
means virtually all of us. The School Board and this court 
are bound by the Constitution as the Supreme Court inter­
prets it. In order that we think in terms of law and human 
rights instead of in terms of personal likes and prefer­
ences, we ought to read about what the Supreme Court 
has said.

Opinion and Order Dated April 23,1969, Etc.



3a

Before 1954, public education in North Carolina was 
segregated by law. “ Separate but equal” education was 
acceptable. This de jure segregation was outlawed by the 
two decisions of the Supreme Court in Brown v. Board of 
Education, 347 U. S. 483 (1954) and 349 U. S. 294 (1955).

The first Brown opinion held that racial segregation of 
schools by law was unconstitutional because racial segre­
gation, even though the physical facilities and other tan­
gible factors might be equal, deprives Negro children of 
equal educational opportunities. The Court recalled prior 
decisions that segregation of graduate students was un­
lawful because it restricted the student’s “ability to study, 
to engage in discussions and exchange views with other 
students, and, in general, to learn his profession.” The 
Court said:

“ Such considerations apply with added force to chil­
dren in grade and high schools. To separate them 
from others of similar age and qualifications solely 
because of their race generates a feeling of inferiority 
as to their status in the community that may affect 
their hearts and minds in a way unlikely ever to be 
undone.”

Quoting a lower court opinion, the Supreme Court con­
tinued :

“ ‘Segregation of white and colored children in public 
schools has a detrimental effect upon the colored 
children. The impact is greater when it has the sanc­
tion of the law; for the policy of separating the races 
is usually interpreted as denoting the inferiority of 
the Negro group. A sense of inferiority affects the 
motivation of a child to learn. Segregation with the 
sanction of law, therefore, has a tendency to [retard]

Opinion and Order Dated April 23,1969, Etc.



4a

the educational and mental development of Negro chil­
dren and to deprive them of some of the benefits they 
would receive in a racial[ly] integrated school system.’

“We conclude that in the field of public education the 
doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal. . .

The second Brown case, decided May 31, 1955, directed 
school boards to do whatever was necessary to carry out 
the Court’s directive as to the pending cases “with all de­
liberate speed” (349 U. S. 301).

North Carolina’s most significant early response to 
Brown was the Pupil Assignment Act of 1955-56,1 under 
which local school boards have the sole power to assign 
pupils to schools, and children are required to attend the 
schools to which they are assigned.

It is still to this day the local School Board, and not 
the court, which has the duty to assign pupils and operate 
the schools, subject to the requirements of the Constitution.

1 N.C.G.S., § 115-176. Authority to provide for assignment and 
enrollment of pupils; rules and regulations.— Bach county and city 
board of education is hereby authorized and directed to provide 
for the assignment to a public school of each child residing within 
the administrative unit who is qualified under the laws of this 
State for admission to a public school. Except as otherwise pro­
vided in this article, the authority of each hoard of education in 
the matter of assignment of children to the public schools shall be 
full and complete, and its decision as to the assignment of any 
child to any school shall be final. . . . No child shall be enrolled in 
or permitted to attend any public school other than the public 
school to which the child has been assigned by the appropriate 
board of education. In exercising the authority conferred by this 
section, each county and city board of education shall make assign­
ments of pupils to public schools so as to provide for the orderly 
and efficient administration of the public schools, and provide for 
the effective instruction, health, safety, and general welfare of the 
pupils. Bach board of education may adopt such reasonable rules 
and regulations as in the opinion of the board are necessary in the 
administration of this article. (Emphasis added.)

Opinion and Order Dated April 23,1969, Etc.



5a

It is the court’s duty to assess any pupil assignment plan 
in term of the Constitution, which is still the Supreme law 
of the land.

Some token desegregation of Charlotte city schools oc­
curred during the late 1950’s. In 1961, upon economic and 
administrative grounds not connected with questions of 
segregation, the Charlotte City schools and the Mecklen­
burg County schools were consolidated into one school 
administrative unit under one nine-member board known as 
the Charlotte-Mecklenburg Board of Education. By 1964 
a few dozen out of more than 20,000 Negro school chil­
dren were attending schools with white pupils.

This suit was filed on January 19, 1965, by Negro pa­
trons, to seek orders expediting desegregation of the 
schools. At that time, serious questions existed whether 
Brown required any positive action by school boards to 
eliminate segregated schools or whether it simply forbade 
active discrimination. An order was entered in 1965 by 
the then District Judge in line with the law as then under­
stood, substantially approving the Board’s plan for de­
segregation. The Fourth Circuit Court of Appeals af­
firmed the order.

Pursuant to the approved plan the Board closed certain 
all-Negro schools, established school zones, built some new 
schools, and set up a freedom of choice arrangement for 
the entire system. The students in a zone surrounding 
each school are assigned to that school; a period is allotted 
each spring to request assignment to another school; no 
reason for transfer need be given; all transfer requests 
are honored unless the requested schools are full; no trans­
portation is available to implement such transfer.

In appraising the results under this plan in 1969, four 
years later, we must be guided by some other and more 
recent things the Supreme Court has said.

Opinion and Order Dated April 23,1969, Etc.



6a

In Green v. New Kent County School Board, 391 U. S. 
430 at 435 (1968), the Supreme Court held unlawful a 
county school pupil assignment system which maintained 
a black school and a white school for the same grades. The 
Court said:

“It was such dual systems that 14 years ago Brown I 
held unconstitutional and a year later Brown II  held 
must be abolished; school boards operating such school 
systems were required by Brown II ‘to effectuate a 
transition to a racially nondiscriminatory school sys­
tem.’ 349 U. S., at 301. It is of course true that for 
the time immediately after Broivn II the concern was 
with making an initial break in a long-established 
pattern of excluding Negro children from schools at­
tended by white children. The principal focus was on 
obtaining for those Negro children courageous enough 
to break with tradition a place in the ‘white’ schools. 
See, e. g., Cooper v. Aaron, 358 U. S. 1. Under Brown 
II that immediate goal was only the first step, how­
ever. The transition to a unitary, nonracial system 
of public education was and is the ultimate end to be
brought about; . . . ”

* * * * *
“It is against this background that 13 years after 
Brown II commanded the abolition of dual systems 
we must measure the effectiveness of respondent 
School Board’s ‘freedom-of-choice’ plan to achieve 
that end.

* * * * *
“ . . . In the light of the command of that case, what 

is involved here is the question whether the Board 
has achieved the ‘racially nondiscriminatory school 
system’ Brown II held must be effectuated in order

Opinion and Order Dated April 23,1969, Etc.



7a

to remedy the established unconstitutional deficiencies 
of its segregated system. In the context of the state- 
imposed segregated pattern of long standing, the fact 
that in 1965 the Board opened the doors of the former 
‘white’ school to Negro children and of the ‘Negro’ 
school to white children merely begins, not ends, our 
inquiry whether the Board has taken steps adequte to 
abolish its dual, segregated system. Brown II was a 
call for the dismantling of well-entrenched dual sys­
tems tempered by an awareness that complex and mul­
tifaceted problems would arise which would require 
time and flexibility for a successful resolution. School 
boards such as the respondent then operating state- 
compelled dual systems were nevertheless clearly 
charged with the affirmative duty to take whatever 
steps might be necessary to convert to a unitary sys­
tem in which racial discrimination tvould be eliminated 
root and branch. . . . ”

* * * * *

“ • • • ‘The time for mere “deliberate speed” has run 
out,’ Griffin v. County School Board, 377 U. S. 218, 
234; ‘the context in which we must interpret and ap­
ply this language [of Brown II] to plans for deseg­
regation has been significantly altered.’ ” 

* * * * *
:<. . . The burden on a school board today is to come 

forward with a plan that promises realistically to 
work, and promises realistically to work now.

“ The obligation of the district courts, as it always has 
been, is to assess the effectiveness of a proposed plan 
in achieving desegregation. . . . ”

* * * * *

Opinion and Order Dated April 23,1969, Etc.



8a

“We do not hold that ‘freedom of choice’ can have no 
place in such a plan. We do not hold that a ‘freedom- 
of-choice’ plan might of itself he unconstitutional, al­
though that argument has been urged upon us. Rather, 
all we decide today is that in desegregating a dual 
system a plan utilising ‘freedom of choice’ is not an 
end in itself. As Judge Sobeloff has put it,
“ ‘Freedom of choice’ is not a sacred talisman; it is 

only a means to a constitutionally required end— 
the abolition of the system of segregation and its 
effects. If the means prove effective, it is accept­
able, but if it fails to undo segregation, other means 
must be used to achieve this end. The school offi­
cials have the continuing duty to take whatever 
action may be necessary to create a ‘unitary, non- 
racial system.’ ” Bowman v. County School Board, 
382 F. 2d 326, 333 (C. A. 4th Cir. 1967) (concurring 
opinion).

“ . . . Although the general experience under ‘freedom 
of choice’ to date has been such as to indicate its in­
effectiveness as a tool of desegregation, there may 
well be instances in which it can serve as an effective 
device. Where it offers real promise of aiding a de­
segregation program to effectuate conversion of a 
state-imposed dual system to a unitary, nonracial sys­
tem there might be no objection to allowing such a 
device to prove itself in operation. On the other hand, 
if there are reasonably available other ways, such for 
illustration as zoning, promising speedier and more 
effective conversion to a unitary, nonracial school sys­
tem, ‘freedom of choice’ must be held unacceptable.” 

* # * # *

Opinion and Order Dated April 23,1969, Etc.



9a

" . . .  The Board must be required to formulate a new 
plan and, in light of other courses which appear open 
to the Board, such as zoning', fashion steps which 
promise realistically to convert promptly to a system 
without a ‘white’ school and a ‘Negro’ school, but just 
schools.”

(All emphasis added except for the word “required” 
in the first quoted paragraph and the word “now” in 
the fifth quoted paragraph.)

It is obvious that between 1955 and 1968 the meaning 
and the force of the constitutional guaranty that educa­
tion if tax paid be equal for all has been intensified. The 
duty now appears as not simply a negative duty to refrain 
from active legal racial discrimination, but a duty to act 
positively to fashion affirmatively a school system as free 
as possible from the lasting effects of such historical 
apartheid. It is in this light that the actions of school 
boards must now be studied.

F in d in g s  of F act

S ome F acts A bout  th e  C h arlotte-M ecklen burg  
S ch ool  S ystem  :

a) General Information,—The system covers 550 square 
miles and serves more than 82,000 pupils. It is 43rd in 
size among the school administrative units of the United 
States. The county population is over 335,000. The popu­
lation of Charlotte is now about 270,000. The student 
population increases at a rate betwen 2,500 and 3,000 stu­
dents per year. The schools are 107 in number, including 
76 elementary schools (grades 1 through 6), 20 junior high

Opinion and Order Dated April 23,1969, Etc.



10a

schools (grades 7 through 9) and 11 senior high schools 
(grades 10 through 12). The Board also operates a learn­
ing academy, 4 child development centers (kindergartens 
for the underprivileged) and 3 psycho-educational clinics.

The students on the rolls as of January 1969 include 
44,835 elementary students, 20,675 junior high students 
and 16,690 senior high students. Of these students, about 
29% are Negro and about 71% are white. The ratio of 
black to white of all ages in the county is about one to 
three.

The 5,880 school employees include 3,553 classroom 
teachers; 404 other members of the instructional staff in­
cluding principals, directors and special staff members. 
These include 60 guidance counselors and 114 librarians. 
Other employees include 325 secretaries and other clerical 
employees, 995 cafeteria employees, 357 janitors and maids, 
219 maintenance and transportation workers and 27 people 
assigned to educational television work. The school sys­
tem is the largest employer in the state’s most populous 
county.

The nine members of the Board of Education are elected 
three every two years on a non-partisan basis for six-year 
terms.

Over 18% of the 3,553 classroom teachers have graduate 
certificates. Some 2,870 or nearly 81% have Class A cer­
tificates. Some 852 teachers are men.

Of 1968’s 4,095 high school graduates, about 62% or 
2,539 entered college. The drop-out rate for the past two 
years has been approximately 2.3% of the total enrollment 
of the schools.

The operating budget for the system (not counting con­
struction costs) was nearly $40,000,000 last year. Average 
per pupil expense was over $530. Teachers’ salaries range

Opinion and Order Dated April 23,1969, Etc.



11a

from $5,669 to $10,230.25. School funds come 58% from 
the state, 35% from local sources, and 7% from federal 
funds.

Class size averages approximately 28 students in ele­
mentary schools (the first six grades); 26.4 in junior high 
schools and 29.3 in senior high schools.

All schools have libraries. The total number of books 
in the libraries is over 806,000, which is nearly 10 books 
per pupil, with a value estimated at $2,677,804. (This may 
be compared with the average of roughly one-half a book 
per pupil in the schools of the District of Columbia a 
couple of years ago.) These are not the textbooks which 
are furnished free by the state for individual use, but are 
library books for general circulation. Circulation last year 
was 2,884,252, or an average per pupil of 36 books.

The Board operates the largest food service industry in 
the state, serving over 70,000 meals a day on a budget of 
four and one-half million dollars.

Nearly one-fourth of the students (almost 20,000 last 
year) attend classes at the planetarium in the Children’s 
Nature Museum. This is reportedly more children than 
attend regular classes at any other planetarium in the 
country.

Special consultants and teachers are provided in special 
areas such as art, music, languages, social studies, science, 
mathematics and physical education. Special teachers are 
employed to teach classes for the gifted, the mentally re­
tarded and the physically handicapped. Guidance counsel­
ors, school psychologists and social workers are available 
where needed.

Faculty salaries are higher in Mecklenburg County than 
in most other counties of the state, by virtue of a sub­
stantial salary supplement from local taxpayers.

Opinion and Order Dated April 23,1969, Etc.



12a

b) History and Geography; Background of De Facto 
Segregation.—Charlotte (270,000-plas) sits in the center of 
Mecklenburg County (550 square miles, total population 
over 335,000). The central city may be likened to an auto­
mobile hub cap, the perimeter area to a wheel, and the 
county area to the rubber tire. Tryon Street and the 
Southern Railroad run generally through the county and 
the city from northeast to southwest. Trade Street runs 
generally northwest to southeast and crosses Tryon Street 
at the center of town at Independence Square. Charlotte 
originally grew along the Southern railroad tracks. Tex­
tile mills with mill villages, once almost entirely white, 
were built. Business and other industry followed the high­
ways and the railroad. The railroad and parallel highways 
and business and industrial development formed something 
of a barrier between east and west.

By the end of World War II many Negro families lived 
in the center of Charlotte just east of Independence Square 
in what is known as the First Ward—Second Ward— 
Cherry—Brooklyn area. However, the bulk of Charlotte’s 
black population lived west of the railroad and Tryon 
Street, and north of Trade Street, in the northwest part 
of town. The high priced, almost exclusively white, coun­
try was east of Tryon Street and south of Trade in the 
Myers Park—Providence—Sharon—Eastover areas. Char­
lotte thus had a very high degree of segregation of housing 
before the first Broivn decision.

Among the forces which brought about these concentra­
tions should be listed the original location of industry 
along and to the west of the Southern railroad; the loca­
tion of Johnson C. Smith University two miles west of 
Tryon Street; the choice of builders in the early 1900’s 
to go south and east instead of west for high priced dwell­
ing construction; the effect of private action and public 
law on choice of dwelling sites by black and by white pur­

Opinion and Order Dated April 23,1969, Etc.



13a

chasers or renters; real estate zoning which began in 1947; 
and the economics of the situation which are that Negroes 
have earned less money and have been less able to buy or 
rent expensive living quarters.

Local zoning ordinances starting in 1947 generally allow 
more varied uses in the west than in the east. Few if any 
areas identified as black have a residential restriction 
stronger than R-6, which means that a house can be built 
on a lot as small as 6,000 square feet. Zoning restrictions 
in other areas go as high as 12,000 and 15,000 square feet 
per lot. Nearly all industrial land in the city is in the west. 
The airport in the southwest with its jet air traffic inhibits 
residential development. Many black citizens live in areas 
zoned industrial, which means that the zoning law places 
no restriction on the use of the land. The zoning laws 
follow the pattern of low cost housing and industry to the 
west and high cost housing with some business and office 
developments to the east.

City planning* has followed the same pattern.
Tryon Street and the Southern railroad were not built to 

segregate races. In the last fifteen years grade crossings 
have been eliminated at great expense at Fourth Street, 
Trade Street, Twelfth Street and Independence Boule­
vard ; and an elevated half-mile bridge, the Brodie Griffith 
Skyway, is now being built across the railroad in North 
Charlotte at a cost of more than three million dollars. The 
ramparts are being pierced in many spots and inner-city 
highways now under construction will make communication 
much simpler.

However, concentration of Negroes in the northwest con­
tinues. Under the urban renewal program thousands of 
Negroes were moved out of their shotgun houses in the 
center of town and have relocated in the low rent areas 
to the west. This relocation of course involved many ad

Opinion and Order Dated April 23,1969, Etc.



14a

hoc decisions by individuals and by city, county, state and 
federal governments. Federal agencies (which hold the 
strings to large federal purses) reportedly disclaim any 
responsibility for the direction of the migration; they re­
portedly say that the selection of urban renewal sites and 
the relocation of displaced persons are matters of decision 
(“ freedom of choice” ?) by local individuals and govern­
ments. This may be correct; the clear fact however is that 
the displacement occurred with heavy federal financing and 
with active participation by local governments, and it has 
further concentrated Negroes until 95% or so of the city’s 
Negroes live west of the Tryon—railroad area, or on its 
immediate eastern fringes.

Onto this migration the 1965 school zone plan with free­
dom of transfer was superimposed. The Board accurately 
predicted that black pupils would be moved out of their 
midtown shotgun housing and that white residents would 
continue to move generally south and east. Schools were 
built to meet both groups. Black or nearly black schools 
resulted in the northwest and white or nearly all white 
schools resulted in the east and southeast. Freedom of 
students of both races to transfer freely to schools of their 
own choices has resulted in resegregation of some schools 
which were temporarily desegregated. The effect of clos­
ing the black inner-city schools and allowing free choices 
has in overall result tended to perpetuate and promote 
segregation.

S ome  B oard A ctions . F ound  N ot To B e D iscr im in ato r y

No racial discrimination or inequality is found in the 
following disputed matters:

1. The use of federal funds for special aid to the dis­
advantaged. The testimony and the exhibits failed to show

Opinion and Order Dated April 23,1969, Etc.



15a

Opinion and Order Dated April 23,1969, Etc.

that federal money was used with any discrimination by 
race or with any improper displacement of local money.

2. Use of mobile classrooms. In recent years the system 
has required the addition of nearly two classrooms per 
week. Mobile classrooms have been used to provide extra 
space temporarily to cope with shifts and growth in school 
population. Mobiles are not inferior in quality and com­
fort to permanent classrooms, and recent models are supe­
rior in many ways to many existing permanent classrooms. 
Their use and location are matters to be determined by 
the Board in light of the court’s instructions hereafter on 
the preparation of a new plan for pupil assignment.

3. The quality of the school buildings and equipment. 
The evidence showed the per pupil value of the land and 
building's and equipment of the various schools. Average 
value of these items per pupil for elementary schools was 
$861; for junior high schools $1,229; and for senior high 
schools $1,567. Schools described by witnesses as “ white” 
ranged well up and down on both sides of that average 
figure and schools described by witnesses as “black” showed 
a similar variation. Several of the oldest and most re­
spected “white” elementary schools in the county (Sharon 
Road and Steele Creek, for example) have very low per 
pupil facilities values. One of the newest but still all black 
high schools (West Charlotte) has one of the highest per 
pupil facilities values. The highest priced school (Olympic 
High) is totally desegregated (522 white and 259 black 
students). No racial discrimination in spending money or 
providing facilities appears. 4

4. Coaching of athletics. Coaches at the predominantly 
black schools are usually black. Coaches at the predomi-



16a

antly white schools are usually white. Several black coaches 
have been employed at “white” schools. No black coach was 
shown to have applied and been refused a job. No pattern 
of discrimination appears in the coaching ranks.

5. Parent-Teacher Association contributions and activi­
ties. Parents contribute to school projects through vol­
untary Parent-Teacher Associations. This voluntary pa­
rental action is not racial discrimination against children 
whose parents are less able to make such contributions, and 
it does not come about through state action.

6. School fees. It was contended that the school fee 
system is discriminatory. For example, at the elementary 
level, grades 1 through 6, each student is supposed to bring 
a dollar to school at the beginning of the year to provide 
some extra learning aids in the form of paper, art materials 
and the like. In poor communities collection of this fee 
averages only about 50%, whereas nearly all wealthy 
children pay all the fees assessed in their schools. This 
non-payment of school fees by the poor is not a racial 
discrimination against the poor. The schools where people 
are poorer have other funds by which this 50  ̂ per pupil 
can be made up.

7. School lunches. School lunches are provided free to 
needy students. The court finds that no one has ever 
knowingly been denied a free lunch on racial grounds if 
he could not pay for it.

8. Library books. Library books of comparable quality 
and content are available to all students, black and white, 
in all schools in an average number of nearly ten per pupil.

Opinion and Order Dated April 23,1969, Etc.



17a

9. Elective courses. Some elective courses such as Ger­
man are offered at some but not all of the high schools. 
They are offered at a school only if enough students ex­
press a desire for the course. Not all schools therefore 
have all elective courses every year. This situation is not 
the result of discrimination on account of race.

10. Individual Evaluation of Students. Individual stu­
dents are evaluated annually in terms of achievement in 
particular subjects, and divided into groups for the study 
of particular subjects in accordance with their achievement. 
(This is not, truly described, the “track” system which 
was elaborately criticized by Judge Shelly Wright in his 
119-page opinion in Hobson v. Hansen, 269 F. Supp. 401 
(D.C. D.C., 1967).) Few black students are in the advanced 
sections and most are in regular or slow sections. Assign­
ments to sections are made by the various schools based 
not on race but on the achievement of the individual stu­
dents in a particular subject. There is no legal reason 
why fast learners in a particular subject should not be 
allowed to move ahead and avoid boredom while slow learn­
ers are brought along at their own pace to avoid frustra­
tion. It is an educational rather than a legal matter to 
say whether this is done with the students all in one class­
room or separated into groups.

11. Gerrymandering. Gerrymandering was contended in 
the 1965 hearing of this case. Perhaps the evidence comes 
closer to proving it this time. The court is not by this order 
foreclosing the later assertion of that contention or for 
that matter any other contention which may be advanced, 
because it is the court’s duty to keep the matter under ad­
visement. However, in view of the court’s orders herein 
which are expected to produce substantial changes in the

Opinion and Order Dated April 23,1969, Etc.



18a

pupil assignment system and a reappraisal of all zoning- 
considerations, it is believed that nothing in particular 
need be said here about specific school district lines.

S ome C om m en t  on S pecific  I ssues

a) The Present State of Desegregation.—Defendant’s Ex­
hibit Seven (attached as an appendix to this opinion) shows 
pupil and faculty population for each school in the system, 
by races, in March of 1965 and in October of 1968. From 
this and other evidence the following facts are apparent:

1) The Rural Schools Are Largely Desegregated. 
Of the 32,000 rural children of all twelve grades, some
23,000, black and white, are being hauled by bus to 
desegregated schools. No rural schools are all-black. 
The only all-white county schools are four new schools 
in the south and east portions of the county: Beverly 
Woods, Devonshire, Idlewild and Lansdowne.

2) The City Schools are Still Largely Segregated. 
A few city schools, Elizabeth (58% Negro); Highland 
(13% Negro); Plaza Road (19% Negro); Randolph 
(28% Negro); Sedgefield (19% Negro); Spaugh 
(18% Negro) and Harding (17% Negro) have a sub­
stantial degree of apparently stabilized desegregation. 
However, most of the fully desegregated city schools 
are not stable in that situation, but are rapidly mov­
ing (through a temporary desegregation) from an all- 
white to an all-black condition. Dramatic examples are 
Barringer (84% Negro); Villa Heights (86% Negro); 
Piedmont (89% Negro); Tryon Hills (50% Negro); 
Hawthorne Junior High (52% Negro); Lakeview (65% 
Negro); and apparently Dilworth (39% Negro) and 
Wilmore (33% Negro).

Opinion and Order Dated April 23,1969, Etc.



19a

3) More Than Three-Fourths of the Children At­
tend Schools Which Have One or More Children of 
the Opposite Race. In Cornelius (49% Negro), Dil- 
worth (39% Negro), Elizabeth (58% Negro) and a few 
others, the races are close to being balanced in num­
bers. However, most schools have only a small handful 
of the minority race. Illustrations are: Second Ward 
High School (1,139 black and three white); Midwood 
(522 white, one black); Lincoln Heights (817 black, 
two white).

4) Most Black Students Attend Totally or Almost 
Totally Segregated Schools. Out of 24,000 black stu­
dents :

4,780 attend nine all-black elementary schools;
3,380 attend six elementary schools which are more 

than 99% black;
2,491 attend three all-black junior high schools;

727 attend York Road with only six white fellow 
junior high students;

1,569 high school students attend all-black West 
Charlotte; and

1,139 black Second Ward High School students have 
only three white classmates.

Opinion and Order Dated April 23,1969, Etc.

14,086

In other words, of the 24,000 or so black students, 14,086 
of them attend school daily in schools that are all-black 
unless at York Road they see one of the six white students 
or at Second Ward they see one of the three white students, 
who were enrolled there last October.



20a

5) Most White Students Attend Largely or Completely 
Segregated Schools. Thirteen elementary schools with 
8,044 pupils are 100% white; eighteen other elementary 
schools with a pupil enrollment of 10,651 have only 150 
black students. The total number of white elementary stu­
dents is only 31,545. At the junior high level, 7,641 out of 
14,741 white students attend school with only 193 black 
students in six schools. In the high schools, 12,310 white 
students attend school with 1,642 blacks, while 2,735 black 
students at West Charlotte and Second Ward attend school 
with three white students.

b) The Opinions of Experts.—Doctors Larson, Finger 
and Passy, all from Rhode Island College, of Providence, 
Rhode Island, testified at length. They submitted a 55-page 
report which outlines several possible plans for realign­
ment of school zones and for provision of transportation; 
for pairing schools; for setting up feeder systems; for 
educational parks; and other approaches towards desegre­
gation. None was as familiar with the local situation as 
the local Board and school administrators. All drew certain 
conclusions from the Coleman Report, which is a collection 
of statistics on performance of school children in certain 
areas about the country. Some said that kindergarten for 
all children would help the situation. Some said under­
privileged children should start getting public education 
several years before first grade age. Some said that im­
proving the faculty was important. Available statistics 
and expert opinion agreed that Negro students as a group 
do noticeably worse on achievement tests than students 
generally. The experts agreed that if children are under­
privileged and undercultured, their school performance will 
be generally low. One expert, Dr. Passy, said that socio­

Opinion and Order Dated April 23,1969, Etc.



21a

economic-cultural background is the sole major determinant 
of school performance. The Abraham Lincoln-Charles Ket­
tering theory of the rise of Americans from poor back­
grounds received small support.

One point on which the experts all agree (and the statis­
tics tend to bear them out) is that a racial mix in which 
black students heavily predominate tends to retard the 
progress of the whole group, whereas if students are 
mingled with a clear white majority, such as a 70/30 ratio 
(approximately the ratio of white to black students in 
Mecklenburg County), the better students can hold their 
pace, with substantial improvement for the poorer students.

c) The “Neighborhood School” Theory.—Recently, the 
School Board has followed what it calls the “neighborhood 
school” theory. Efforts have been made to locate elementary 
schools in neighborhoods, within walking distance of chil­
dren. The theory has been cited to account for location and 
population of junior and senior high schools also.

“Neighborhood” in Charlotte tends to be a group of 
homes generally similar in race and income. Location of 
schools in Chalotte has followed the local pattern of resi­
dential development, including its de facto patterns of 
segregation. With a few significant exceptions, such as 
Olympic High School (about % black) and Randolph Road 
Junior High School (28% black), the schools which have 
been built recently have been black or almost completely 
black, or white or almost completely white, and this proba­
bility was apparent and predictable when the schools were 
built. Specific instances include Albemarle Road Elemen­
tary (99% +  white); Beverly Woods (100% white); Bruns 
Avenue (99% + black) ; Hidden Valley (100% white); Olde 
Providence (98% white); Westerly Hills (100+ white); 
Albemarle Road Junior High (93% white).

Opinion and Order Dated April 23,1969, Etc.



22a

Today people drive as much as forty or fifty miles to 
work; five or ten miles to church; several hours to football 
games; all over the county for civic affairs of various types. 
The automobile has exploded the old-fashioned neighbor­
hood. Parents with children of all ages may be members 
of two or three separate and widely scattered school “com­
munities.” Putting a school in a particular location is the 
active force which creates a temporary community of in­
terest among those who at the moment have children in 
that school. The parents’ community with the school ordi­
narily ends the day the youngest child graduates.

If this court were writing the philosophy of education, 
he would suggest that educators should concentrate on 
planning schools as educational institutions rather than as 
neighborhood proprietorships. The neighborhood school 
concept may well be invalid for school administrative pur­
poses even without regard for racial problems. The Char- 
lo'tte-Mecklenburg School Board today, for example, is 
transporting 23,000 students on school buses. First graders 
may be the largest group so transported. If a first grader 
lives far enough from school to ride a bus, the school is 
not part of his neighborhood.

When racial segregation was required by law, nobody 
evoked the neighborhood school theory to permit black 
children to attend white schools close to where they lived. 
The values of the theory somehow were not recognized 
before 1965. It was repudiated by the 1955 North Carolina 
General Assembly and still stands repudiated in the Pupil 
Assignment Act of 1955-56, which is quoted above. The 
neighborhood school theory has no standing to override 
the Constitution.

d) Bussing. Under North Carolina General Statutes, 
§115-180, the Board is expressly authorized to operate

Opinion and Order Bated April 23,1969, Etc.



23a

school busses to transport school children. The state pays 
bus expenses only for rural children and for some who have 
been annexed into the city in recent years. This apparent 
discrimination against city dwellers is reportedly under 
attack in another court. This Board already transports
23,000 students to school every day out of the 32,000 who 
live in the area presently eligible for bus service. The 
present cost of school bussing is about $19 for bus operation 
plus the cost of the bus which at $4,500 per bus should not 
exceed $20 per pupil a year. In other words, it costs about 
$40 a year per pupil to provide school bus transportation, 
out of total per pupil school operating costs of about $540. 
The income of many black families is so low they are not 
able to pay for the cost of transportation out of segregated 
schools to other schools of their choice.

The Board has the power to use school buses for all 
legitimate school purposes. Buses for many years were 
used to operate segregated schools. There is no reason 
except emotion (and I confess to having felt my own share 
of emotion on this subject in all the years before I studied 
the facts) why school busses cannot be used by the Board 
to provide the flexibility and economy necessary to de­
segregate the schools. Busses are cheaper than new build­
ings ; using them might even keep property taxes down.

e) Faculty Desegregation.—The Board employs over 
2,600 white teachers and over 900 black teachers. New 
teachers hired last year numbered 700. Technically their 
contracts are with the Board of Education to teach where 
assigned. The Board makes no sustained effort to desegre­
gate faculties. The choice where to teach is a matter be­
tween the principal and the prospective teacher. The Board 
assumes white teachers wflll tend to choose white schools 
and black teachers black schools.

Opinion and Order Dated April 23,1969, Etc.



24a

The results of this passive selection policy are obvious. 
Of the thirteen all-black schools in the system serving 8,840 
students, only four have any white teachers. Those four 
have ten white teachers and 161 black teachers for 3,662 
students. Few predominantly black schools have any sub­
stantial number of white teachers, except a few schools 
which serve areas rapidly turning from white to black. 
Eight other schools 99% or more black had only six white 
teachers among them for 5,246 black and 24 white pupils. 
Second Ward and West Charlotte High Schools, with 2,700 
black students and three white students, have 131 black 
teachers and only nine white teachers.

All of the white elementary schools have at least one 
and in a few cases as many as three or four black teachers. 
The proportions of black teachers in the junior and senior 
high schools run slightly higher. The system has not 
operated, however, to produce any substantial teaching of 
black students by white teachers.

Desegregation of faculties does not depend upon proof 
of superiority of one group of teachers or students over 
the other. Whatever the discrimination that may result 
from a segregated faculty, it will be eliminated only when 
a child attending any school in the system will face about 
the satne chances of having a black or a white teacher as 
he would in any other school. Mecklenburg schools pay a 
sizeable salary supplement. Desegregation is proceeding 
in other counties and school districts. It can not be as­
sumed and should not be a tacit part of Board policy that 
white school teachers are opposed to equality of educa­
tion or that they will refuse to teach in black schools. In 
fact, white and black teachers are working together in 
substantial numbers in several schools of this system and 
there was no evidence at the hearing of any friction or

Opinion and Order Dated April 23,1969, Etc.



25a

difficulty caused by a bi-racial faculty. It is from the 
teachers that children learn their first glimmerings of the 
right to equality of opportunity which still constitutes 
America’s chief contribution to modern civilization. The 
right of all children to equal education is part of that 
right. It is believed that if the Board takes a stand that 
requires faculty desegregation and treats all teachers 
equally in working towards that end, the teachers will 
participate wholeheartedly.

f) Metropolitan High School.—Supported by impressive 
recommendations from Engelhart, Engelhart & Leggett, 
educational consultants, the Board has planned and has 
two million dolars on hand to build Metropolitan High 
School at or near the location of present Second Ward 
High School. In addition to being a school for conven­
tional high school work, it is to be a center for vocational 
training and special courses in music, the creative and 
performing arts and other special subjects not practical 
to offer in all the high schools. Second Ward is now a 
99% + black school in the Brooklyn urban renewal area 
four or five blocks south of the Court House and City Hall. 
The First Baptist Church and the School Board itself have 
buildings under way on adjacent or nearby land. This is 
near the geographical and traffic center of the city and 
county, one-half a mile from the central business district, 
a few blocks from Central Piedmont Community College 
and within easy travel distance of most of the city. The 
location and proposed purposes appear ideal.

Plaintiffs’ attorneys object to Metropolitan High School. 
Some present school patrons want the school built. The 
School Board has announced a stoppage of work on that 
school pending this decision.

Opinion and Order Dated April 23,1969, Etc.



26a

All three groups may be proceeding upon an erroneous 
assumption—that the school if built will be a black school 
because the pupil and faculty populations will be governed 
by freedom of transfer and school zones as presently admin­
istered. That assumption should no longer be entertained. 
Pupils for regular and vocational subjects can travel or 
be transported to and from this area, in all directions, with 
greater ease than is true of any other location in the 
county. The nearest other high schools, Harding, West 
Charlotte, Garinger, East and Myers Park, form a hollow 
pentagon six or seven miles on the side surrounding Sec­
ond Ward. It would be tragic to refrain from building a 
needed educational facility simply upon the assumption 
that it has to be an all-black school and therefore either 
unlawful or unattractive. The School Board is advised to 
make plans for desegregation of this school along with 
other schools in the system. With the unrestricted statu­
tory power to assign pupils and provide transportation, 
the only thing necessary to build Metropolitan High School 
according to the dreams of its planners is the decision 
to do so.

g) The Percentage Racial Mix.—Counsel for the plain­
tiffs says that since the ratio of white to black students 
is about 70/30, the School Board should assign the children 
on a basis 70% white and 30% black, and bus them to all 
the schools. This court does not feel that it has the power 
to make such a specific order. Nevertheless, the Board 
does have the power to establish a formula and provide 
transportation; and if this could be done, it would be a 
great benefit to the community. It would tend to eliminate 
shopping around for schools; all the schools, in the New 
Kent County language, would be “just schools” ; it would 
make all schools equally “desirable” or “undesirable” de­

Opinion and Order Dated April 23,1969, Etc.



27a

pending on the point of view; it would equalize the bene­
fits and burdens of desegregation over the whole county 
instead of leaving them resting largely upon the people 
of the northern, western and southwestern parts of the 
county; it would get the Board out of the business of law­
suits and real estate zoning and leave it in the education 
business; and it would be a tremendous step toward the 
stability of real estate values in the community and the 
progress of education of children. Though seemingly radi­
cal in nature, if viewed by people who live in totally 
segregated neighborhoods, it may like surgery be the most 
conservative solution to the whole problem and the one 
most likely to produce good education for all at minimum 
cost. It would simply put the all-white and all-black school 
people in the same school situation now being experienced 
by patrons of Cornelius, Davidson, Ranson, Long Creek, 
Dilworth, Olympic, Huntersville, Pineville, Randolph Road 
Junior High, Statesville Road, and similar schools. Such 
action would be supported by the unanimous testimony of 
all the experts and by inferences from the Coleman Report 
that although mixing a few whites and a heavy majority 
of blacks retards the whole group, nevertheless mixing a 
substantial majority of whites and a few blacks helps the 
blacks to advance without retarding the whites.

h) A Word About the School Board.—The observations 
in this opinion are not intended to reflect upon the motives 
or the judgment of the School Board members. They have 
operated for four years under a court order which re­
flected the general understanding of 1965 about the law 
regarding desegregation. They have achieved a degree 
and volume of desegregation of schools apparently un­
surpassed in these parts, and have exceeded the perfor­
mance of any school board whose actions have been re­

Opinion and Order Dated April 23,1969, Etc.



28a

viewed in appellate court decisions. The Charlotte- 
Mecklenburg schools in many respects are models for 
others. They are attractive to outside teachers and offer 
good education. The problem before this court is only 
one part (albeit a major part) of the educational problem. 
The purpose of this court is not to criticize the School 
Board, but to lay down some legal standards by which 
the Board can deal further with a most complex and 
difficult problem. The difference between 1965 and 1969 
is simply the difference between Brown of 1955 and Green 
v. New Kent County of 1968. The rules of the game have 
changed, and the methods and philosophies which in good 
faith the Board has followed are no longer adequate to 
complete the job which the courts now say must be done 
“now.”

Opinion and Order Dated April 23,1969, Etc.

Conclusions  op L aw

1. Since 1965, the law has moved from an attitude 
barring discrimination to an attitude requiring active 
desegregation. The actions of school Boards and district 
courts must now be judged under Green v. New Kent 
County rather than under the milder lash of Brown v. 
Board of Education. The court has outlined changes 
which should be made in the activity and theory of the 
local Board. 2

2. The manner in which the Board has located schools 
and operated the pupil assignment system has continued 
and in some situations accentuated patterns of racial 
segregation in housing, school attendance and community 
development. The Board did not originate those patterns; 
however, now is the time to stop acquiescing in those 
patterns.



29a

3. Freedom of transfer as operated in this system does 
not answer the problems of racial segregation. The evi­
dence shows that the black students as a group have very 
low incomes. Freedom of transfer without transportation 
is to such a student often an empty right.

4. The faculties have not been adequately desegregated 
as directed. This permits and promotes inequality of 
education.

5. The court does not find any inequality based upon 
racial motives or reasons in the use of federal funds; the 
use of mobile classrooms; quality of school buildings and 
facilities; athletics; PTA activities; school fees; free 
lunches; books; elective courses; nor in individual evalua­
tion of students. The problem of alleged gerrymandering 
of district lines need not be covered separately from the 
general order herein made.

6. There has been substantial desegregation in many 
areas—mostly the rural areas—of this large and com­
plicated school system. A majority of the black students, 
however, still attend segregated schools and seldom, if 
ever, see a white fellow student. Many all-black and all- 
white schools still remain. The neighborhood school con­
cept and freedom of choice as administered are not further­
ing desegregation.

7. The School Board has an affirmative duty to promote 
faculty desegregation and desegregation of pupils, and to 
deal with the problem of the all-black schools.

8. The School Board is free and encouraged to use 
school busses or other public transportation and to use

Opinion and Order Bated April 23,1969, Etc.



30a

mobile classrooms as needed to provide equality of educa­
tional opportunity.

9. The Board has assets and experience beyond the 
reach of a judge to deal with all these problems, and 
should be requested to formulate a plan and time table 
of positive action.

Opinion and Order Dated April 23,1969, Etc.

Order

1. All findings or statements of fact in this opinion and 
order shall be deemed conclusions of law, and all conclu­
sions of law shall be deemed to be findings of fact as 
necessary in support and furtherance of this order. All 
competent and relevant evidence in the record has been 
considered in support of this order. 2 *

2. The defendant is directed to submit by May 15, 1969, 
a plan for the active and complete desegregation of teach­
ers in the Charlotte-Mecklenburg school system, to be 
effective with the 1969-70 school year. Such plan could 
approach substantial equality of teaching in all schools by 
seeking to apportion teachers to each school on substan­
tially the same ratio (about three to one) as the ratio of 
white teachers and black teachers in the system at large. 
It is suggested that teachers’ preferences not be especially 
sought and that teachers be assigned as a routine matter 
for the purpose of accomplishing this equalization of the 
application of educational manpower and womanpower in 
the public schools. Such a plan should provide safeguards 
against racial discrimination in the discharge of any 
teachers whose jobs might be changed or abolished. Such
safeguards should include provisions that if anyone has 
to be discharged, his qualifications will be weighed against



31a

those of all personnel in the system rather than s im p l y  

against those in the capacity in which he has been working; 
no teacher should be dismissed or demoted or denied em­
ployment or promotion because of race or color. In other 
words, the Board will be expected to see to it that teachers 
displaced by virtue of this order will not be discriminated 
against on account of race.

3. The defendant is directed to submit by May 15, 1969, 
a plan and a time table for the active desegregation of the 
pupils, to be predominantly effective in the fall of 1969 
and to be completed by the fall of 1970. Freedom of choice 
and zoning may be used in such a plan provided they 
promote rather than defeat desegregation. If freedom 
of choice is retained in such plan, it should include pro­
vision for transportation free for any student who requests 
transfer out of a school where his race is in the majority, 
and to any school where his race is in the minority, and 
a means of insuring that all students have full and timely 
knowledge of the availability of such transportation. 4

4. In formulating its plan the Board is, of course, free 
to use all of its own resources and any or all of the 
numerous methods which have been advanced, including 
pairing of grades and of schools; feeding elementary into 
junior high and into senior high; combinations of zone 
and free choice where each method proceeds logically 
towards eliminating segregation; and bussing or other 
transportation. The Board may also consider setting up 
larger consolidated school units freely crossing city-county 
lines to serve larger areas. There is no magic in existing 
school zone lines nor in the present size of any school. 
The Board is encouraged to get such aid as may be avail­
able from state and federal agencies including the offices

Opinion and Order Dated April 23,1969, Etc.



32a

of the Department of Health, Education and Welfare. 
The court does not direct a treaty with the Department, 
hut does suggest that since its employees are in the busi­
ness of dealing with these problems, they have a store 
of technical assets and manpower and information which 
could be useful in the Board’s making any particular 
judgment or analysis.

5. The plan should be the plan of the Board for the 
effective operation of the schools in a desegregated at­
mosphere, removed to the greatest extent possible from 
entanglement with emotions, neighborhood problems, real 
estate values and pride. The court’s task has not been 
easy, but it is fully realized that the task facing the Board 
is far more difficult and will require a conspicuous degree 
of further public service by the Board’s members.

This the 23rd day of April, 1969.

/ s /  James B. McMiulan 
James B. McMillan 

United States District Judge

Opinion and Order Dated April 23,1969, Etc.



33a

APPENDIX 

P age 1

The C h a r lo t t e - M e c k le n b u r g  S c h o o ls  

R e s e a r c h  R e p o r t  2 -  * 69

SUMMATION OF DEGREE OF INTEGRATION 196 5  (MARCH) AND 1 9 6 8 -6 9  (OCT. 1 ,

For P u p ils  P ro fe ss io n a l S t a f f

1
Sch oo ls  Having In te g ra t io n

. For 1965 1?68 . For 1965 1968-
PupiIs 1 N + 22 W 16 N + 68 W S t a f f 3 N + 0 W 16 N + 82 W

-  23 o f  109 -  84 o f  112 -  3 o f  109 -  98 o f  112
o r  21% o r  75% o r  3% o r 8 7 i%

1965

•Pupils 9W 476N

1968

1192W 6704N

1965 1 968
N W N W

Number in 
M in o r it y  Race 
( in te g ra te d )

S.7W ON
131W 208N

B.

. Pupils
343 N 16.446W

Number in 
M a jo r it y  Race 
(i n tegrated)

8697N 47.356W
143 .3N +0W

374N 2575W

Total In vo lved  by 
In te g ra t io n

. Predominantly 
Negro Schools 
"  “ Pup i 1s

352 9889 S t a f f  149 505

• Predominat1y
Wh i te Schools
-  - P u p ils  16,922 54,060 S ta f f 0 2783

•Total
- - P u p ils  17.274 63,949 S t a f f 149 3288

o r o r o r or
24% o f 7Z% o f _9%  o f _1L%  o f 

3613 a ss ign e d72,336 83,111 3140 in c l .
Enrol 1ed pa rt  assignm ents 

in  sc h o o ls
at one d e f in i te 
school



34a

a p p e n d ix

Page 2

The C ha rlo tte -M eck lenburg  Schoo ls

yo*J inarch ) and 1968-69 (Oct. 1, ‘68)

Grade -*»• , '9 6 5  P u p ils
School N w No- 1968 P u p ils

School N w

P ro fe ss io n a l S fa ff

1965
N W

1968

Total

1-6 72 9,364 27,696 76 •- 13,290 31,565 377+ 1161* 478 I32j7-9 17 2.675 11,804 21 5,934 16,761 111- 533 228 70c10 -12 • 8 1,625 10,677 11 6,377 12,313 65 67 9 * 178 64-

97 13,464 50,177 108-■ 23,601 58,599 553* 2184 884 267;
Other 12 6,877 1,818 4+ ^ * 660^ '

240

271 323 * 79 23 21

1-4 ' 1 360 •• Kgn. + T ra in a b le
I “7 2 631 207 15*

9*1 -9 3 729 1611 17
5-9 1 505 32 68
1-12 3 2400 25*
7 -12 2 2452 113*120 1*

109 20,341 51,995___ /f- 112

I 7*,33ST 
A 9 J ?1 7h1f-

24,241
I
f  ~Z

58,870 
__  7

8 3 / / / r  > 

l i l t "  70.if‘

877 2263

Inc lude
P a r t - t  ime

907 2706

Not Include 
Par t -t im e

Among teachers a ssigned  to 
more than one school



35a

APPENDIX 

Page 3

COMPARISON OF PUPILS AND PROFESSIONAL STAFFING BY RACE

School 

Elementary

March 6, 1965 and 1968-69 *

1965 P u p ils  1968-69 P u p ils  

N ^  W N . W

V  t  (° ther)

P ro fe ss io n a l

1965

N <y6 w 
//

S ta f f

1968-69*

N . w 
^  (other)

• i' ~ ---------------
Albemarle Rd. 4 n .  499 6 327. 13
Alexander S tree t 342 106%. 257 tool. 14.1 1007. 11 lOO l.
A11enbrook 50 107. 452 2 107. 18
Ashley Park O 'h  694 07. 553 01.22.9 2 9 7. 20

1-9 Bain 0% 674 25 37. 699 07.28.2 1 37. 28

Barringer 0% 604 668 m  13 1 07. 24.8 13 927. 18
Berryh i 11 0% 1026 119 157. 685 0739.6 2 67. 32
Bethune 343 911. 9 223 99% 3 17.61007. 11 100*7.
Beverly Woods 07. 286 1 TL 12

- B i d d le v i11e 434 lOOYo 17.2 1007.

■ tg| Bi 11 in g sv i 1 le 729 \0O % 619 1007. 2 32.1 1001. 25 1007.
Br i arwood 2 0% 582 8 17. 640 0*23.9 3 127. 22
Bruns 740 99% u 26 937. 2
Chanti 1 ly 07. 445 2 01. 491 . 07.18.8 1 59. 21
Clear Creek on- 207 58 201.225 07. 9.6 1 “1% 12

C o lli nswood 01.375 72 o x  490 01. 16.1 1 S7. 21
Corneli us cn.241 239 49% 252 01.11.3 7 337.14
Cotswold 01.631 11 21. 567 07.25.0 1 57. 21
Crestda le 97 IOC?. S.OIool.
Dav i dson 01. 178 101 351. 186 07. 7.8 1 n .  II

Marie Davis 808 1001. 705 1007. 34.3 1007. 29 lool.
Deri ta 6 n .  892 165 1ST. 728 01.35.4 3 9% 32
Devonsh i re 2 0% 474 0% 889 01-19.5 4 107. 37
D iIw orth 100 301.401 223 397355 0 *23 .8 4 157. 22
Double Oaks 703 I00T. 800 loc 7. 28.21407. 32 1007.

Druid Hi l ls 520 lOOl 504 99 7. 3 ■ 20.7 looi. 20 1007.
Eastover 0% 704 49 71. 580 0X27.1 I 47. 24
El izabeth 5 \% 448 270 5J7.194 07,22.9 2 97. 21
Enderly  Park 01  368 2 n. 374 07.14.9 1 67. 15
Fai rview 702 loo* 363 icos. 28.0 1007. 19 1001*



36a

Fi r s t  Ward 473 1007. 749 1007. 22.8 ioo*7. 30 lo c i
J. H. Gunn 696 1007. 33.6 Ioot.
Hickory Grove 01. 530 80 131531 0121.7 1 47. 23
Hidden V a lley 0 1  977 2 57. 35
H ighland 2 I I.  273 47 137.324 0114.0 1 17. I4

*  Does not include s t a f f  assigned  to more than one school per HEW request. 

*/° ^  'H t a T t jt  i V ^ o / e  / > f t  C e n t  / / » /  /V ~

APPENDIX

Page 4
2

COMPARISON OF PUPILS 
March 6,

ANO PROFESSIONAL STAFFING BY RACE 
1965 and 1968-69 *

P ro fe ss lon a l S ta ff

School 1965 Pup ils 1968-69 P u p ils 1965 1968-69*

Elementary N %  W

.ir

V,
H H  W 

. (other) 
*

N N  W

.1

•?.
N s  W

(other)
V

Hoskins 07. 342 18 < « 2 6 1 07. 14.7 2 157. 11
Huntersvi 1 le 0 %  553 162 « % 5 6 0 07. 22.9 2 71 25
Huntingtowne Farms OOo 358 7 ^*695 0 1  1 5 .1 1 4-7. 26
Id le w ild P Pa 592 2 476521 0 1 2 3 .9 1 r i.  22

4 jjr- *"**7 James 360 /*0 0. 477 ix> 7. 1 15.5 1007. 19 (0 0 7 .

-rgj Ada Jenkins 431 /eo 1o ’ l7 .0  loo i
Lakeview 0% 400 269 AS%147 07.18.5 14 747. 5
Lansdowne 45,633 47.758 07.23.9 1 31.30
L inco ln  Heights 783 /oo ?. 8 1 7 /eafb 2 2 9 .1  1001. 30 1007.
Long Creek OP.423 250 337.466 07.17.6 2 77. 26

-Matthews 0 P-937 (1-6)93 /17. 71*2 07.39.7 1 37. 32
Merry Oaks 4 £,538 0 p<469 07. 21.9 1 57. 19
Midwood 4 P.560 1 a 7V522 07.24.9 2 ' S i.  21
M ontcla ire 0 ^ 2 0 a %722 07.29.1 1 4 1  27
Morgan 305 /»4 Po 14.9 1007.



37a

Myers Park o%575 23 V7»543 01 .29.9 1 4-1. 23
Myers S tree t 820 foc% 32.2 Icon.
Nations Ford or.513 63 /a 7.585 01. 21.6 1 91. 25
Newel 1 C7.96 3 73 /5 7A23 01.18.3 1 5 1 .  18
Oakdale 0?o9  02 72 / 3 7.480 01.17.2 1 51. 21

Oakhurst o  ?c 598 2 0 7<>6l 5 01. 22.8 1 91. 23
Oaklawn 666 /oo % $50 /O0 7o 26.0 1601. 25 931 . 2
01de Providence 10 *7 .4 3 9 1 L I .  17
Park Road 07c 583 o7o551 01.22.7 1 59. 21
Paw Creek o9c 793 63 7 97361 O %30.3 1 39. 31

Pi nev i 11e 0%  364 168 -7^7*363 01. 16.2 1 59. 21
Pi newood <?Po719 07.707 01. 28.1 1 m . 26
Plaza Road 07,900 99 /?7<A09 01.17.7 1 59. 21
Rama Road 992 2 07.777 01. 18.7 2 91. 27
Sedgef i e ld 3 /% 5 2 6 7 / 7.595 01. 21.8 2 99. 20

j;9  P lato P rice 505 A>07o 25.4 1001.
Selwyn 055 531 5 598 Oli 21.9 1 41. 22
S e v e r sv i11e 96 Jt9o22S 01.19.8
Shamrock Gardens <j ?c536 <5 7.539 01.21.9 1 59. 20
Sharon 07.591 0 7.519 OX 22.9 1 51 - 20

A P P E N D IX

P a g e  5

3

COMPARISON OF PUPILS AND PROFESSIONAL !STAFFING BY RACE
March 6, 1965 and 1968-69 ★

Professlona l S t a f f
School 1965 Pu p ils 1968-69 Pu p ils 1965 1968-69*

Elementary N 1 .  W N 9. W N 9. W N 9. w
hJ

1
N (other)
1

hJ |9 (other)
---------------------------- -------------- ^ ------------ - t? -------------

Starmount 0 1  981 25 3 7 . 7 1 3 01. 20.9 1 3*1. 28
S t a t e s v i1le Road 0 1. 650 295 347.539 01. 25.9 3 8%  29

i 12 Stee le  Creek 
4t r ~ S t e r I  Ing

01. 222 
699 1001.

12 17.531 cn» 1 0 .7
33.91061.

1 59. 20

Thomas boro 0*lo 885 07. 705 01.39.3 2 19. 25
1 “1 2 _

T o rre n c e -L y t1e 1005 tool. 96.1 looi.
Tryon H i l l s 01. 329 291 5o1.295 01.15.0 1 S7. 20
Tuckaseegee 01.631 61 101.553 01.23.9 1 H I.  23
U n iv e r s it y  Park 700 1007. 777 1009. 25.8 looi. 30 919. 1
Zeb Vance 965 loot. 257 looi* 19.5 lo o i. 11 1009.



38a

V i l l a  H e ights 23 4-L 594 796 S U M  26 07. 28.3 23 u on .i4
Wesley H e ights 214 100*10 8.3 177. 2.2
W esterly H i l l s 07.569 1 4-7. 22
Wilmore 6 17. 323 145 357.293 07o 15.4 8 407. 12
Windsor Park 1 07. 679 2 07.737 07. 25.8 1 n  27

W in te rfie ld Ol. 455 07. 689 07.18.7 1 47. 26
Woodland 360 1007. 14.8 1007.
Wood 1 awn 07. 283 <7114.0
Isabe l la  Wyche 383 loo7« 222 I007o 18.6 loa*lo 12 1007.

C h ild  Development (Kgn.) 

Davidson, Center #1 83 4-17. 1 17 3 3cn. 7
P in e v ille , Center #2 166 7,1% 37 2 107. 8
S e v e r sv il le ,  Center #3 174 -8 77.26 8 «07. 2
Morgan, Center #4 188 ° n i. 6 8 -io i. 2

* APPENDIX

Page 6

School 

J u n io r  H igh

C O M P A R IS O N

1 9 6 5

N

OF PUPILS 
March 6,

P u p ils

“I .
M «

1

AND PROFESSIONAL STAFFING BY RACE 
1965 and 1968-69 *

P ro fe ss  Iona!

1968-69 P u p il*  1965 

N ^  W N J  W

l ( o t h e r )  . L

S ta f f

1968-69 *

N W

*  (other)
4

Albem arle R o a d 66 n  8 8 i 4 47. 43
Alexander 07. 577 347 317. 755 07. 28.9 6 111. 44
Cochrane 07. 872 76 37.1444 07. 35 .4 6 10 7 ,  56
Cou1 wood 3 H .  574 119 147. 727 01. 27.1 4 i n .  3 4

Eastway 07.1046 3 07.1364 07. 43.2 3 5 7 . 55

A lex. Graham 07* 1048 8 11. 1084 07. 43 .8 4 97. 43
Hawthorne 25 47. 670 492 547. 447 07. 33 .9 12 1 1 1 . 33
Irw in  Ave. 785 1007. 666 1 0 0 7 . 4 2 . 7  l o o t . 32 9 1 1 . 1

M cC lin tock 07.1273 46 41. 1 228 07.51.5 2 47* 49
Northwest 773 1007. 932 IO01. 33.71007. 39 1007.



39a

Pi edrront 
Qua i 1 Hollow  
Randolph 
Ranson 
Sedgef i e ld

Smi th 
Spaugh 
Wi l l i  ams 
Wi1 son 
York Rd.

121 091, 291 428 S71. 53 07.26.8 13 •5371.12
01.766 171 m i  261 07.35.2 3 51. 61

658
272 33,7. 711 2 57. 38

9 11. 253 301. 586 01. 30.0 6 i a  31
6 n 920 189 iqi. 802 01. 40.5 . 5 111. 39

cn 1115 07.1389 01. 48.6 3 57* 571
752

on. 930 186 m  871 01.42.5 6 13-7. 43
1001.

1064
893 loon* 34.9 loot 37 loo7.

(7-12)1041
01. 60 37. 1132 07.45.6 4 Vi. 45

looio 727 991. 6 49.9 looi. 32 < m  i

Learning Academy -  7th S- 8th grades
counted in JH, above, 5 197.21

APPENDIX 

Page 7

COMPARISON OF PUPILS AND PROFESSIONAL STAFFING BY RACE 
March 6, 196$ and 1968-69 *

P ro fe ss io n a l S t a f f

School 

Sen io r H igh

1965 P u p ils

N r , ‘  W 
rJ

______ L______

1968-69 P u p ils

N W
(other)

1965

» 7 -  ,

I

1968-69*

n w 
"  (othe

East Mecklenburg 01. 1782 155 V io l  739

--------------------------

01. 79.2 6 77. 85
Gari nger 2 07. 2266 202 n  2157 07.100.0 6 41. I 02
Harding 01. 1002 169 ITU 814 Cfl. 48.0 4 V I. 49
1 ndependence 92 9 9 .962 6 9*1. 59
Myers Park 31 1772 158 S7.1895 01. 76.7 6 47. 87

North Mecklenburg 1 cn. 1155 410 311.1109 07. 51.8 6 9*1. 63
Olympic 259 331. 522 5 i l l .  39

-Second Ward 1411 1001, 1139 10010 3 70.0 W .  1.5 57 957 . 3
South Mecklenburg 30 a*?. 1430 106 4.7. 1812 07.72.0 4 51. 78
West C h a r lo tte 1560 tool. 1569 tool. 65.0 971 .2 .0 74 937. 6
West Mecklenburg 1 crj. 1270 118 V1.1340 0 1 .6 1 .4 4 5*1. 73

^ -3



40a

The defendants have filed a proposed plan of action pur­
suant to the court order of April 23, 1969. The plaintiffs 
have filed a motion requesting restraint on further school 
construction until the school hoard has dealt satisfactorily 
with the segregation question. A further hearing is indi­
cated. The court has two weeks of criminal court starting 
June 2; and Monday, June 16, 1969 is the earliest predict­
able time' that a hearing could be conducted.

All parties are therefore notified that a hearing will be 
held in the United States Court House in Charlotte start­
ing on Monday, June 16, 1969, at 10:00 a.m. All parties are 
requested to be present.

Under the law the burden is upon the school board to 
come forward with a plan which “promises realistically to 
work now” to eliminate segregation in the Charlotte- 
Mecklenburg schools. The obligation of the court under the 
law is “to assess the effectiveness of a proposed plan in 
achieving desegregation.” Evidence will be received from 
all parties on these general subjects.

Without limiting any party in the scope and type of rele­
vant evidence which he may wish to produce, the court 
directs the parties to come forward with exhibits, statistics, 
records, and other information so that the court will be in 
adequate position to make findings upon the following sub­
jects, among others:

1. What has been accomplished, by June 16, toward 
achieving the duty which the defendants have accepted of 
“achieving substantial faculty desegregation,” and what the 
plan proposed by the defendants may be expected to ac­
complish further along that line by September, 1969. 2

2. What school zones may fairly be said to have been 
gerrymandered (either by control of their boundary lines

Order dated June 3 ,  1 9 6 9



41a

or by control of their student capacity or both) so as to fit 
a particular pocket or community of all- or nearly all-black 
or all- or nearly all-white students; and what could be done 
to reduce or eliminate segregation in those zones.

3. What progress if any toward desegregation of pupils 
may reasonably and predictably be expected by September, 
1969, from the pupil plan presented by the defendants.

4. What effect if any the pupil plan may be expected to 
have upon the present large group of all-black or 99%+ 
black schools, and upon the more than 14,000 children who 
still attend them.

5. Why students allowed to transfer from one zone to 
another to avoid racial discrimination should be penalized 
by being required to wait a year before taking part in 
varsity athletics, as the proposed pupil plan requires, which 
self-admitted “penalty” is lifted if they return to the zone 
originally assigned by the defendants.

6. The actual meaning of the “free transfer” plan—the 
numerical extent to which the plan requires that students 
wishing to transfer and being supplied transportation to 
transfer will actually find space in the schools of choice if 
they exercise their option to transfer. This is not a trick 
question but one directed to the ambiguity of the plan and 
the conflicts in the language used in the plan. Clarification 
is requested.

7. What steps will be followed to insure that the transfer- 
with-transportation choice is actually communicated per­
sonally to children who may be entitled to the choice, and 
to their parents, and affirmatively accepted or rejected by 
them.

Order Dated June 3,1969



42a

8. Statistics on school population by race in the system 
for the years since consolidation and similar statistics for 
the separate county and city units from 1954 until con­
solidation.

9. The facts about school bussing operations of the 
Charlotte-Mecklenburg school system, including such rec­
ords as already exist on bus routes, year by year, since 
1961, including where the busses get the pupils and where 
they take them, and the races of the pupils transported.

10. The pupil attendance zones or school zones, year by 
year, for all years since 1954.

11. What the pending school construction programs will 
do in terms of creating pupil accommodations, and whether 
the programs will tend to perpetuate or to alleviate segre­
gation in the schools.

12. Why decision on the construction and purposes of 
Metropolitan High School should not be postponed until 
after a final court ruling, appellate or otherwise, has been 
rendered, so that the decision on the educational questions 
can be made in a quieter and non-racial atmosphere. Also, 
why the defendants should not retain any land or control 
over any land they may now have, pending such decision.

13. Why no action has been taken by the defendants on 
the various possible methods for further reduction of seg­
regation such as re-examination of zones, enlargement or 
combination of school zones, reorganizing the existing 23,- 
000 pupil bus system, pairing of schools, consultation with 
the Department of Health, Education and Welfare, and 
other possible methods.

Order Dated June 3,1969



43a

14. Scholastic aptitude tests and achievement tests and 
intelligence tests for all grades for which such data are 
available in all schools in the county and city since 1954.

15. What concrete and specific steps, if any, plaintiffs 
would have the defendants adopt in order to comply with 
the Constitution. The court is not interested in a restate­
ment of the previous demand of plaintiffs that all the 
schools in the system be populated on a 70/30 basis, because 
as previously stated the court does not have the power to 
make such an order and the defendants have served notice 
that they will not undertake such an assignment themselves. 
What is desired is some tough and detailed thinking and 
planning as to detailed methods to reduce and promptly 
eliminate segregation in the Charlotte-Mecklenburg schools.

The above questions and requests, insofar as they call 
for facts and figures, call for the production—not the crea­
tion—of the desired information. Counsel are requested 
to advise the court immediately if the production of already 
existing records does not provide any of the statistical in­
formation mentioned above. It is not the intention of the 
court to put the parties to work creating new charts nor 
re-assembling existing statistics, but rather to make avail­
able existing information.

This the 3rd day of June, 1969.

/ s /  James B. McMillan 
James B. McMillan 

United States District Judge

Order Dated June 3,1969



44a

Several changes in the personnel of the defendant school 
board have taken place since this suit was instituted. In 
order that all parties may be fully before the court and that 
there be no avoidable technical irregularity.

I t I s Ordered that all the present members of the Char- 
lotte-Mecklenburg Board of Education be and they are 
hereby made formal parties to this action; that copies of 
the M otion eoe F u r th er  R elief  filed September 6, 1968 
he served upon them and that there also be served upon 
them copies of all orders and motions that have been filed 
since that time.

Service of these motions and orders (including this 
order making new parties and the order of this same date 
regarding the further hearing of June 16, 1969) should be 
made by the United States Marshal. The members of the 
school board and their addresses are:

Order Adding Additional Parties dated June 3 , 1 9 6 9

Mr. William E. Poe, Chairman 
2101 Coniston Place (Home) 
1014 Law Building (Office) 
Charlotte, North Carolina

Mr. Henderson Belk Rev. Coleman W. Kerry, Jr. 
1022 Kohler Avenue 
Charlotte, North Carolina

529 Hempstead Place 
(Home)

308 East Fifth Street 
(Office)

Charlotte, North Carolina

Mr. Ban Hood 
Route 4
Matthews, North Carolina

Mrs. Julia Maulden 
Box 6
Davidson, North Carolina



45a

Order Adding Additional Parties Dated June 3, 1969

Mr. Ben F. Huntley 
Box 128
8301 Pineville Road 

(Office)
Pineville, North Carolina

Mrs. Betsey Kelly 
3501 Mountainbrook Road 
Charlotte, North Carolina

Mr. Sam S. McNinch, III 
2914 Hampton Avenue 

(Home)
4037 E. Independence Blvd. 

(Office)
Charlotte, North Carolina

Dr. Carlton G. Watkins 
1223 Marl wood Terrace 

(Home)
1630 Mockingbird Lane 

(Office)
Charlotte, North Carolina

This the 3rd day of June, 1969.

/ s /  J ames B. M cM illan  
James B. McMillan 

United States District Judge



46a

Pursuant to notice dated June 4, 1969, a hearing was 
held in Charlotte on June 16, 17 and 18, 1969, on various 
matters including (1) the motion of the individual defend­
ants for dismissal; (2) the motion of the plaintiffs for 
contempt citations against the individual defendants; (3) 
the proposals offered by the defendants pursuant to the 
April 23, 1969 order as a plan for desegregating the Char- 
lotte-Mecklenburg schools; and (4) the motion of the plain­
tiffs for an order restraining further school construction 
until the segregation issue has been satisfactorily resolved.

I.
T h e  M otion of th e  S chool B oard M embers to D ism iss .

The motion of the individual defendants, members of the 
school board, to dismiss was and is denied. This is a suit 
under the Civil Rights Act involving questions of equal 
protection of laws and racial discrimination and segre­
gation in the public schools. The individual defendants are 
proper parties and their presence is appropriate and 
desirable.

Opinion and O rder dated June 2 0 , 1 9 6 9

II.
T h e  M otion for a  C o n te m pt  C ita tio n .

The motion of the plaintiffs that the individual defend­
ants he found in contempt of the court is on this record 
denied. The board is badly divided and many of its recent 
decisions appear to be made by a five to four vote. Supreme 
Court judges now and then make five to four decisions. 
(Fortunately their votes in all major school segregation 
cases appear to have been unanimous.) The members of



47a

the board have had uncomplimentary things to say about 
each other and about the court, and many of them obviously 
disagree with the legality and propriety of the order of 
the court; but these latter sentiments may be regarded by 
the court as evidence of disagreement with rather than 
contempt for the court who is himself not far removed from 
active participation in the time-honored custom of criticiz­
ing a judge who has ruled against him. Moreover, on an 
issue of such significance, the amount of foot-dragging 
which has taken place, up to now at least, should not be 
considered as contempt of court.

III.

T he  P la n  of th e  D efendants .

1. The history of the plan.—The order of this court di­
recting a further plan for desegregation was entered April 
23, 1969. Within hours, various of the defendants ex­
pressed sharp views pro and con. The board met on April 
28, 1969, and for the first time briefly discussed the order. 
By a five to four margin, apparently, they decided in­
formally not to try to appeal immediately, upon the basis 
that the right of appeal from the order to prepare a plan 
was doubtful. The school superintendent was instructed to 
prepare a desegregation plan. No express guidelines were 
given the superintendent. However, the views of many 
members expressed at the meeting were so opposed to seri­
ous and substantial desegregation that everyone including 
the superintendent could reasonably have concluded, as the 
court does, that a “minimal” plan was what was called for, 
and that the “plan” was essentially a prelude to antici­
pated disapproval and appeal. In a county and city criss­

Opinion and Order dated June 20, 1969



48a

crossed by school bus routes for 23,000 pupils, more than 
twenty thousand citizens, mostly from affluent suburbia, 
many of whose children undoubtedly go to school on school 
busses, signed petitions against “involuntary” bussing of 
students. The frenzy of parents received a ready forum 
in televised meetings of the board. The staff were never 
directed to do any serious work on re-drawing of school 
zone lines, pairing of schools, combining zones, grouping 
of schools, conferences with the Department of Health, 
Education and Welfare, nor any of the other possible 
methods of making real progress towards desegregation.

The superintendent revealed the general terms of his 
plan within a few days and later presented it formally on 
May 8, 1969. It provided for full faculty desegregation in 
1969, which the superintendent said he considered feasible. 
It provided moderate changes in the pupil assignment 
plans; and it contemplated future study of the other 
methods of desegregation suggested in the April 23, 1969 
order.

The board then met, struck out virtually all the effective 
provisions of the superintendent’s plan, and asked for more 
time from the court, which had previously been promised.

The board’s committee on buildings and sites, newly re­
constituted, met and voted to cancel the long standing plans 
for Metropolitan High School, and voted to build it as only 
a specialty and vocational school without including the com­
prehensive high school which consultants and experts, in­
cluding the school board’s staff and superintendent, had 
recommended and still recommend. No new facts except the 
order of court had developed to account for the sudden 
change of plan. The stated reason for the change was that a 
general high school in Second Ward (though not a voca­
tional or technical school) would necessarily be black and

Opinion and Order dated June 20, 1969



49a

therefore should not be built. [The Second Ward school 
site, where Metropolitan is scheduled to be built, is squarely 
in the center of the city’s population; is a scant four blocks 
from the south boundary of its zone; and is apparently the 
easiest high school in town to desegregate; its boundaries 
could easily be re-drawn by extending its southern boundary 
(Morehead Street) and its eastern boundary (Queens 
Road) a few blocks.]

Thereafter, on May 28, 1969, the plan was filed. Volun­
teers were requested among the teachers; pupil transfer 
requests were set out; and data on the workings of the 
plan began to accumulate.

During the early debate over the court order, events 
transpired between the chairman and the superintendent 
which were thought by an assistant superintendent and 
others to threaten the superintendent’s job if he pushed 
for compliance with the court’s order. A few days before 
this hearing, the board committee on personnel declined 
to accept the superintendent’s recommendation that Robert 
Davis, a Negro, be appointed principal of one of the schools. 
This was the first time such a recommendation had not 
been accepted. After some debate, the decision was post­
poned, with the superintendent requested to bring in al­
ternate names. The publicly stated reasons for not approv­
ing the appointment were that Davis, whose training, ex­
perience and qualifications were unquestioned, is a plaintiff 
in this case and a member of the Negro Classroom Teachers 
Association and has spoken out publicly in favor of compli­
ance w7th this court’s order—including one television ap­
pearance before the board itself to which the board had 
invited interested citizens. Davis, according to the press, 
was eventually confirmed for the job on June 19, 1969, 
but only after a “loyalty oath” had been exacted. The

Opinion and Order dated June 20, 1969



50a

effect of the so-called “job threat” and the Davis incident, 
following the public statements of board members, is a clear 
message: School employees voice opinion contrary to the 
hoard majority on desegregation at personal risk.

2. The June 16, 1969 hearing.—The defendants, under 
the law, had the burden of showing that their plan would 
desegregate the schools. To carry that burden they intro­
duced a short written brief and some statistical data and 
rested their case without live testimony. The plaintiffs 
called all members of the school board and the Rhode 
Island expert, Dr. Finger, who testified at the March hear­
ing, and a few other witnesses. There was some rebuttal 
from the board.

3. Findings as to General Board Policy.—

a) The board does not admit nor claim that it has 
any positive duty to promote desegregation.

b) School sites and school improvements have not 
been selected nor planned to promote desegregation 
and the board admits no such duty.

c) Board policy is that the Constitution is satisfied 
when they locate schools where children are and pro­
vide “freedom of transfer” for those who want to 
change schools.

d) Despite its inclusion in the “Plan,” the decision 
of the board about Metropolitan High School is not 
really a final one; several members consider the issue 
in doubt, and the full board has not formally con­
sidered it.

Opinion and Order dated June 20, 1969



51a

4. The Pupil Assignment Plan.—The plan now proposed 
is the plan previously found racially discriminatory, with 
the addition of one element—the provision of transporta­
tion for children electing to transfer out of schools where 
their races are in a majority to schools where they will be 
in a minority. Such provision of transportation is approved.

Another provision of the plan makes high school athletes 
who transfer from one school to another ineligible for 
varsity or junior varsity athletics until they have been a 
year in the new school. For the current year, with the re­
turns almost complete, only two white students out of 
some 59,000 have elected to transfer from white schools 
to black schools. Some 330 black students out of some
24,000 have elected to transfer to white schools. Only 
the tiniest handful of white students have ever in any year 
asked to transfer to black schools. The effect of the athletic 
penalty is obvious—it discriminates against black students 
who may want to transfer and take part in sports, and is no 
penalty on white students who show no desire for such 
transfers. The defendants’ superintendent considers ath­
letics an important feature of education. This penalty 
provision is racially discriminatory. The board is directed 
not to enforce it any more and to give adequate individual 
notice to all rising 10th, 11th and 12th grade students that 
they may reconsider their previous choice of schools in 
light of the removal of the penalty.

Freedom of transfer increases rather than decreases 
segregation. The school superintendent testified that 
there would be, net, more than 1,200 additional white stu­
dents going to predominantly black schools if freedom of 
transfer were abolished. The use of a free transfer provi­
sion is a decision for the board; it may make desegregation 
more palatable to the community at large; it is not, per se,

Opinion and Order dated June 20, 1969



52a

if the schools are desegregated, unconstitutional. Never­
theless, desegregation of schools is something that has to 
he accomplished independent of freedom of transfer. This 
is a fact which because of the complexity of the statistics 
has only become clear to the court since the previous order 
was issued.

5. The Faculty Assignment Plan.—The plan originally 
proposed by the superintendent would have desegregated 
the faculty as a routine matter in 1969. The plan proposed 
by the board however is not materially different from the 
already existing plan. It continues to rely upon voluntary 
transfers and it contemplates affirmative assignment of 
teachers to black schools only late in the day after a hope­
ful routine of filling vacancies (some of which do not exist) 
has been followed. The board has not taken a position of 
leadership with the teachers and the results are apparent. 
Only 28 out of 2,700 white teachers, and only 38 out of 900 
black teachers, had on June 18, 1969 indicated a willingness 
to transfer to schools of the opposite race. Testimony of 
the board members who comprise the majority of the board 
suggests that they do not really contemplate substantial 
faculty desegregation and that they may consider figures 
of “10%” ; or one black teacher to each white school and 
one white teacher to each black school; or filling vacancies 
from the opposite race as they arise, to be compliance with 
the needs of the situation. None of these ideas, of course, 
amounts to desegregation of the faculty. The evidence sub­
mitted by the board does not demonstrate that the faculty 
plan will work. Several board members said that the plan 
to assign teachers is not an “idle promise.”

All that it takes to make the faculty plan work is timely 
decision by the board to implement the assignment of teach­

Opinion and Order dated June 20, 1969



53a

ers. Board members are requested in this connection to 
consider the latest unanimous Supreme Court decision, 
United States v. Montgomery County Board of Education 
(October Term 1968), Case No. 798, decided June 2, 1969, 
reversing the Fifth Circuit Court of Appeals and upholding 
a district court order for faculty desegregation under a 
mathematical formula. Buling on the factulty plan will there­
fore be deferred until after August 4, 1969, by which time 
the board is directed to tile a report stating in detail what 
the plan has done and what the status of faculty assign­
ments then is. The court considers the faculty assignment 
plan to be important and agrees with the superintendent of 
schools that immediate desegregation of the faculty is 
feasible. This is a substantial improvement which is avail­
able without arousing ghosts of “bussing,” “neighborhood 
schools,” or additional expense.

IV.
G errym andering

This issue was passed over in the previous opinion upon 
the belief which the court still entertains that the defend­
ants, as a part of an overall desegregation plan, will elim­
inate or correct all school zones which were created or 
exist to enclose black or white groups of pupils or whose 
population is controlled for purposes of segregation. How­
ever, it may be timely to observe and the court finds as a 
fact that no zones have apparently been created or main­
tained for the purpose of promoting desegregation; that 
the whole plan of “building schools where the pupils are” 
without further control promotes segregation; and that 
certain schools, for example Billingsville, Second Ward, 
Bruns Avenue and Amay James, obviously serve school

Opinion and Order dated June 20, 1969



54a

zones which were either created or which have been con­
trolled so as to surround pockets of black students and that 
the result of these actions is discriminatory. These are 
not named as an exclusive list of such situations, but as 
illustrations of a long standing policy of control over the 
makeup of school population which scarcely fits any true 
“neighborhood school” philosophy.

* # # # #
The findings of fact in the April 23, 1969 order and 

all statements in this opinion are treated as findings of 
fact in support of the order. All of the evidence in the case 
is considered in support of the order.

Obdee

Based upon the evidence and upon the foregoing findings 
of fact the orders of the court are as follows:

1. The motion of the individual defendants to dismiss 
is denied.

2. No citations for contempt are made.

3. Decision on the faculty assignment plan is deferred 
pending receipt of a progress report from the board on or 
before August 4, 1969.

4. The one year penalty on transferring high school 
athletes is disapproved with direction as above for appro­
priate personal communication to rising high school 
students.

5. The provision of transportation for students trans­
ferring from a majority to a minority situation is approved.

Opinion and Order dated June 20, 1969



55a

6. The board is directed to proceed no further with 
action on Metropolitan High School pending a showing by 
the board that the school if constructed will be adequately 
desegregated and a finding by the court to that effect. 
This is based upon the previous findings that the board’s 
decision on Metropolitan was unduly affected by racial 
considerations and that the board has not accepted its 
affirmative legal duty to build school facilities so as to 
promote desegregation.

7. As to the other building projects referred to in the 
motion for restraint on construction, the burden remains 
upon the defendants to show that these programs will 
produce desegregation. The written material tendered by 
the defendants on this subject is lengthy, and does not 
appear to sustain that burden. However, decision on the 
request for injunction against projects other than Metro­
politan will be delayed pending further study of the evi­
dence.

8. It is further ordered that the defendants proceed to 
prepare and submit by August 4, 1969, a positive plan for 
desegregation of the pupils of the Charlotte-Mecklenburg 
school system, as originally directed on April 23, 1969. 
A witness, Dr. Finger, described in detail a plan for de­
segregation by changing certain school zone lines and 
merging certain schools into districts and using certain 
schools as feeders for others. This plan shows a high 
degree of realism in that it minimizes the necessity for 
long-range transportation and takes substantial advantage 
of location and makeup of populations. Local school ad­
ministration consider such a plan feasible. The local school 
administrative staff are also better equipped than Dr.

Opinion and Order dated June 20, 1969



56a

Finger, a “visiting fireman,” to work out and put into 
effect a plan of this sort. It is believed that if the resources 
of the board can be directed as originally ordered toward 
preparing- a Charlotte-Mecklenburg plan for the Char- 
lotte-Mecklenburg schools, desegregation of both faculties 
and students may be accomplished in an orderly fashion. 
Counsel are requested to notify the court promptly if more 
time beyond August 4, 1969 is needed.

This is the 20th day of June, 1969.

J ambs B. M cM illan  
James B. McMillan 

United States District Judge

Opinion and Order dated June 20, 1969



57a

Supplemental Findings of Fact in Connection With the 
Order of June 20, 1969 (Dated June 24, 1969)

The relatively complete extent of the segregation of the 
schools in this system is demonstrated by study of the de­
fendants’ statistics which were attached to and included 
in the original opinion of this court of April 23, 1969. 
There are about 24,000 black students in the county. As 
near as can be estimated, approximately 21,000 of these 
attend schools within the City of Charlotte. When Broivn 
v. Board of Education was decided in 1954, the City of 
Charlotte had less than 7,500 black students. Today within 
the City of Charlotte 14,086 black students attend 21 schools 
which are totally black or more than 99% black. An addi­
tional 2,895 black students attend six schools whose black 
population is between 50% and 86% black. These schools 
are all rapidly moving to a totally or near-totally black 
condition under present policies. When all this is put to­
gether and understood, it becomes clear that of the City’s
21,000 or so black students, nearly 17,000 of them according 
to the figures, and certainly more than 17,000 when the 
population trends are considered, are attending racially 
identifiable black schools.

This the 24th day of June, 1969.

J ames B. M cM illan  
James B. McMillan 

United States District Judge



58a

P relim in ary  S u m m a r y

Pursuant to this court’s June 20, 1969 order, the defen­
dants submitted on July 29, 1969 an amended plan for 
desegregation of the Charlotte-Mecklenburg schools, in­
cluding a highly significant policy statement accepting for 
the first time the Board’s affirmative constitutional duty to 
desegregate students, teachers, principals and staffs “at 
the earliest possible date.” On August 4, 1969, a report was 
filed in connection with the plan. A hearing was conducted 
on August 5, 1969. The plan is before the court for ap­
proval.

Because the schools must open September 2, and because 
the Board’s plan includes both substantial action and gen­
uine assurance of sustained effort toward prompt compli­
ance with the law of the land, the plan of operation, for 
1969-70 only, is approved and as indicated below, the defen­
dants are directed to prepare and file by November 17,
1969, detailed plans and undertakings for completion of the 
job of desegregating the schools effective in September,
1970.

T h e  A mended  P la n— A nd  I ts R eception

The plan proposes, among other things, to close seven 
old all-black inner-city schools and to assign their 3,000 
students to various outlying schools, now predominantly 
white, mostly in high rent districts.

This technique of school closing and reassignment has 
been employed in dozens of school districts to promote 
school desegregation. It is not original with the local School 
Board.

The school closing issue has provoked strident protests 
from black citizens and from others; evidence showed that

Order dated August 1 5 , 1 9 6 9



59a

an estimated 19,000 names are listed on a petition denounc­
ing the plan as unfair and discriminatory. The signers add 
their own brand of protest to that of the 21,000 whites who 
last May (though protesting their acceptance of the princi­
ples of desegregation) raised a “ silk-stocking” community 
outcry against bus transportation except to schools of in­
dividual choice. Another 800 white Paw Creek petitioners 
have joined in protest against a part of the plan under 
which some 200 fifth and sixth grade pupils would he as­
signed to re-opened Woodland, a new unused (and formerly 
black) school. Comment from people who have not studied 
the evidence tends to ignore the law—the reason this ques­
tion is before a court for decision—and to concentrate on 
public acceptance or what will make people happy. A cor­
respondent who signs “Puzzled” inquires:

“If the whites don’t want it and the blacks don’t want it, 
why do we have to have it?”

The answer is, the Constitution of the United States.

T h e  C o nstitu tion— T h e  L aw  of t h e  L and— R equires 
D esegregation of P ublic  S chools

North Carolina reportedly refused to ratify the United 
States Constitution until the Bill of Rights had been in­
corporated into it. The Fourteenth Amendment to that 
Constitution, now part of the Bill of Rights, guarantees to 
all citizens the “equal protection of laws.” In Brown v. 
Board of Education, 347 U. S. 483 (1954), 349 U. S. 294 
(1955), the Supreme Court held that racial segregation in 
public schools produces inferior education and morale, re­
stricts opportunity for association, and thus violates the 
equal protection guaranty of the Constitution and is un­
lawful. In Green v. New Kent County School Board, 391

Order dated August 15, 1969



60a

U. S. 430 (1968), ancl two other simultaneous unanimous 
decisions, the Supreme Court held that school boards have 
the affirmative duty to get rid of dual school systems, to 
eliminate “black schools” and “white schools,” and to oper­
ate “just schools.” The Court said:

“The burden on a school board today is to come forward 
with a plan that promises realistically to work and 
promises realistically to work now.” (Emphasis on the 
word “now” was put in the text by the Supreme Court.)

For years people of this community and all over the south 
have quoted wistfully the statement in Briggs v. Elliott by 
Judge John J. Parker (who at his death was one of my few 
remaining heroes) that though the Constitution forbids 
segregation it does not require integration. Passage of 
time, and the revelation of conditions which might well have 
changed Judge Parker’s views if he had lived, have left 
Judge Parker’s words as a landmark but no longer a guide. 
The latest decision on this subject by the Fourth Circuit 
Court of Appeals (which is the court that first reviews my 
actions) contains this statement:

“The famous Briggs v. Elliott dictum—adhered to by 
this court for many years—that the Constitution for­
bids segregation but does not require integration, is 
now dead.” Hawthorne v. Lunenburg, Nos. 13,283, 
13,284, Fourth Circuit Court of Appeals, July 11, 1969.

“Freedom of choice,” as this court has already pointed 
out, does not legalize a segregated school system. A plan 
with freedom of choice must be judged by the same stan­
dard as a plan without freedom of choice—whether or not 
the plan desegregates the public schools. The courts are 
concerned primarily not with the techniques of assigning

Order dated August 15, 1969



61a

students or controlling school populations, but with whether 
those techniques get rid of segregation of children in public 
schools. The test is pragmatic, not theoretical.

C o n tin u ed  O peration  op S egregated P ublic  
S chools I s U n l a w fu l

The issue is one of law and order. Unless and until the 
Constitution is amended it is and will be unlawful to oper­
ate segregated public schools. Amending the Constitution 
takes heavy majorities of voters or lawmakers. It is diffi­
cult to imagine any majority of Supreme Court, of Con­
gress or of popular vote in favor of changing the Constitu­
tion to say that public school pupils may lawfully be kept 
in separate schools because they are black. A community 
bent on “law and order” should expect its school board 
members to obey the United States Constitution, and should 
encourage them, in every move they make toward such com­
pliance. The call for “law and order” in the streets and 
slums is necessary, but it sounds hollow when it issues from 
people content with segregated public schools.

The questions is not whether people like desegregated 
public schools, but what the law requires of those who oper­
ate them.

T h e  D u t y  to Observe t h e  C on stitu tio n  and  D esegregate 
th e  S chools Can n o t  B e  R educed or A voided B ecause of 
S oothin g  S ayings  F rom  Oth e r  G overnm en t  O fficials  N or 
O utcries F rom  T hose W ho  W a n t  th e  L aw  to G o A w a y .

The rights and duties of the parties to this suit are in 
this court for decision according to law—not according to 
HEW guidelines or public clamor. The court and the school 
board are bound by the Constitution. So are the legislative 
and executive branches of government. No one in Washing-

Order dated August 15, 1969



62a

ton or Raleigh or local government is above or beyond the 
Constitution. None have power to change it except by law­
ful means. None have or claim the power to interfere with 
the courts in cases like this one. The malleable HEW 
“guidelines” put out by the President’s administrator for 
educational affairs, and dubious inferences from statements 
of other officials, however highly placed, are irrelevant to 
the constitutional rights of the parties in this case. Also 
irrelevant are soothing sayings of the Vice President (who 
has the duty in this area) to black-tie political audiences, 
and the not-so-soothing sayings of citizens who erroneously 
talk as if the school segregation issue were a simple matter 
of political pressure and short-term public opinion. As for 
the Attorney General of the United States, he has just filed 
the biggest desegregation suit of all—against the whole 
State of Georgia! Segregation of children in public schools, 
whether they he black or white, and regardless of whether 
they do or don’t want to stay apart, is unlawful. As the 
Supreme Court said in Broum I I :

“ . . . the vitality of these constitutional principles can 
not be allowed to yield simply because of disagreement 
with them.”

T h e  S chool B oard’ s N e w  P la n  R epresents  S u b stan tial  
P rogress.

Against this background the Board’s new plan is re­
viewed :

1. The most obvious and constructive element in the plan 
is that the School Board has reversed its field and has ac­
cepted its affirmative constitutional duty to desegregate 
pupils, teachers, principals and staff members “ at the 
earliest possible date.” It has recognized that where people

Order dated August 15, 1969



63a

live should not control where they go to school nor the 
quality of their education, and that transportation may be 
necessary to comply with the law. It has recognized that 
easy methods will not do the job; that rezoning of school 
lines, perhaps wholesale; pairing, grouping or clustering 
of schools; use of computer technology and all available 
modern business methods can and must be considered in 
the discharge of the Board’s constitutional duty. This court 
does not take lightly the Board’s promises and the Board’s 
undertaking of its affirmative duty under the Constitution 
and accepts these assurances at face value. They are, in 
fact, the conclusions which necessarily follow when any 
group of women and men of good faith seriously study this 
problem with knowledge of the facts of this school system 
and in light of the law of the land.

2. In the second place, by the following actions the 
Board has demonstrated its acceptance of its stated new 
policies:

a) The desegregation of faculties and the non-racial 
reassignment of principals and employees from newly 
closed schools. In the formerly all-black faculties the 
Board has dramatically exceeded its goal. It is as­
sumed by the court that this process of faculty de­
segregation will continue and that the goal for 1970-71 
will be that faculties in all schools will approach a ratio 
under which all schools in the system will have ap­
proximately the same proportion of black and white 
teachers.

b) The closing of seven schools and the reassign­
ment of 3,000 black pupils to schools offering better 
education.

Order dated August 15, 1969



64a

c) The reassignment of 1,245 students from several 
overcrowded primarily black schools to a number of 
outlying predominantly white schools.

d) The announced re-evaluation of the program of 
locating and budding and improving schools, so that 
each project or site will produce the “greatest degree 
of desegregation possible.”

e) The Board correctly and constructively concluded 
that the so-called “anti-bussing law” adopted by the 
General Assembly of North Carolina on June 24, 1969, 
does not inhibit the Board in carrying out its constitu­
tional duties and should not hamper the Board in its 
future actions. Leaving aside its dubious constitu­
tionality (if it really did what its title claims to do) 
the statute contains an express exception which ren­
ders it ineffectual in that it does not prevent “any 
transfer necessitated by overcrowded conditions or 
other circumstances which in the sole discretion of the 
School Board require reassignment.”

f) The elimination without objection of the former 
provision which had the effect of inhibiting transfer 
rights of black would-be athletes.

g) Quite significantly, the Board calls upon the Plan­
ning Board, the Housing Authority, the Redevelopment 
Commission and upon real estate interests, local gov­
ernment and other interested parties to recognize and 
share their responsibility for dealing with problems 
of segregation in the community at large as well as in 
the school system.

h) The proposals for programs of “compensatory 
education” of students, and for teacher orientation and

Order dated August 15, 1969



65a

exchange of activities among black and white students. 
The court assumes that these somewhat vaguely stated 
ideas will become implemented with concrete action.

3. The Seven School Problem.—The Board plan proposes 
to close Second Ward High School, Irwin Avenue Junior 
High School and five inner-city elementary schools (five of 
which were already marked for abandonment) and to re­
assign their 3,000 students to outlying white schools. This 
part of the plan has struck fire from black community 
leaders and some other critics. Counsel for the plaintiffs 
contend that it puts an unconstitutional and discriminatory 
burden upon the black community with no corresponding 
discomfort to whites. One spokesman for a large group of 
dissenting and demonstrating black citizens was allowed to 
express his views at the August 5, 1969 hearing. Threats 
of boycotts and strikes have been publicized.

This part of the plan is distasteful, because all but 200* 
of the students being reassigned en masse are black. It 
can legitimately be said and has been eloquently said that 
this plan is an affront to the dignity and pride of the 
black citizens. Pride and dignity are important. If pride 
and dignity were all that are involved, this part of the 
plan ought to be disapproved. The court, out of forty- 
year memory of four years of transportation on an un­
heated Model-T school but thirteen miles each way from 
a distant rural community to high school in a “city” of
4,000, is fully aware how alien and strange are the sensa­
tions experienced by a school child who is hauled out of 
his own community and into a place where the initial 
welcome is uncertain or cool.

* The 200 students being reassigned from Paw Creek to Wood­
land are white.

Order dated August 15, 1969



66a

However, this part of the plan is not compulsory. 
Students who want to remain in the comfort of their 
familiar area may elect to attend the Zebulon Vance School 
instead; alternatives are also provided for the junior high 
school students.

Moreover, as one of the attorneys remarked at the first 
hearing in a discussion about reassignments and school 
busses: “The question is really not one of ‘bussing’ but 
whether what the child gets when he gets off of the bus is 
worth the trouble.”

I personally found the better education worth the bus 
trip.

Despite their undoubted importance, pride and dignity 
should not control over the Constitution and should not 
outweigh the prospects for quality education of children. 
The uncontradicted evidence before the court is that 
segregation in Mecklenburg County has produced its 
inevitable results in the retarded educational achievement 
and capacity of segregated school children. By way of 
brief illustration a table follows showing the contrasting 
achievements of sixth grade students in five of the closed 
schools (Bethune, Fairview, Isabella Wyche, Alexander 
Street and Zeb Vance) and in five of the schools to which 
black students are going to be transferred:

Order dated August 15, 1969



67a

A verage A c h ie ve m e n t  T est S cores 

S ix t h  G rade—1968-69
ACM. WM (Word

Order dated August 15, 1969

SP. LANG. (Math) Meaning )

(Bethune 45 34 41 41
(Ashley Park 61 62 56 58
(Fairview 46 38 42 39
(Westerly Hills 61 61 52 57
(Isabella Wyche 41 34 40 38
(Myers Park 80 84 58 73
(Alexander Street 45 38 34 40
(Shamrock Gardens 57 62 53 56
(Zeb Vance 38 34 39 42
(Park Road 71 75 58 66

This alarming contrast in performance is obviously not 
known to school patrons generally.

It was not fully known to the court before he studied 
the evidence in the case.

It can not be explained solely in terms of cultural, racial 
or family background without honestly facing the impact 
of segregation.

The degree to which this contrast pervades all levels 
of academic activity and accomplishment in segregated 
schools is relentlessly demonstrated.

Segregation produces inferior education, and it makes 
little difference whether the school is hot and decrepit or 
modern and air-conditioned.

It is painfully apparent that “quality education” can 
not live in a segregated school; segregation itself is the 
greatest harrier to quality education.

As hopeful relief against this grim picture is the un­
contradicted testimony of the three or four experts who



68a

testified, some for each side, and the very interesting 
experience of the administrators of the schools of Buffalo, 
New York. The experts and administrators all agreed that 
transferring underprivileged black children from black 
schools into schools with 70% or more white students pro­
duced a dramatic improvement in the rate of progress and 
an increase in the absolute performance of the less advanced 
students, without material detriment to the whites. There 
was no contrary evidence. (In this system 71% of the 
students are white and 29% are black.)

Moreover, the Board’s announced policy and the uncon­
tradicted testimony of the superintendent show that 
serious arrangements are being made to welcome, rather 
than rebuff, the transferees into all school activities. This 
is something new and important.

No legal authority is cited that the Constitution pro­
hibits transport of consenting black children from an 
inferior educational environment into a better educational 
environment for the purpose of complying with the con­
stitutional requirement of equal protection of laws.

The choice of how to do the job of desegregation is for 
the School Board—not for the court.

The Board has wide discretion in choosing methods; 
many effective methods are described in the evidence; the 
court’s duty is simply to pass on the legality of the Board’s 
actions. It appears to the court that the improvement in 
the education of 4,200 school children is the one most 
obvious result of the Board’s plan of action for 1969-70, 
and that this is more important constitutionally than other 
considerations which have been advanced.

It is not the intention of this court to endorse or ap­
prove any future plan which puts the burden of desegrega­
tion primarily upon one race. However, there is not time 
before September 2, 1969 to do a complete job of reassign­

Order dated August 15, 1969



69a

ing pupils; the plan is a step toward more complete 
compliance with the law; the court reluctantly votes in 
favor of the 4,200 school children and approves the plan 
on a one-year basis.

T h e  M ajor  T ask  L ies A head  T h is  F all

The big* job remains to be done. After implementation 
of the current plan, further large scale faculty transfers 
will still be necessary. Sixteen years after Brown v. Board 
of Education, some thirteen thousand school children will 
remain in black or nearly all-black schools. Most white 
students will remain in substantially all-white schools. 
The failure of the plan to deal with those problems of 
course can not be approved. The failure of the plan to 
include a time table for the performance of specific ele­
ments of the program of course can not be approved, 
Felder, et al. v. Harnett County Board of Education, et at., 
409 F. 2d 1070 (4th Cir., 1969). These matters must be 
covered by specific instructions to the Board.

All findings of fact in the previous orders of April 23, 
1969, and June 20, 1969, and the supplemental findings 
of June 24, 1969, are incorporated herein to the extent 
that they are consistent with the findings, conclusions and 
orders herein reached and given. All evidence at all hear­
ings is considered in reaching these conclusions.

O rder

1. The policy statement of the Board is approved.

2. The faculty desegregation program is approved.

3. The plan to desegregate pupils by closing seven all­
black schools and assigning their pupils to outlying white

Order dated August 15, 1969



70a

schools is approved only (1) with great reluctance, (2) as 
a one-year, temporary arrangement, and (3) with the 
distinct reservation that “one-way bussing” plans for the 
years after 1969-70 will not be acceptable. If, as the school 
superintendent testified, none of the modern, faculty- 
integrated, expensive, “equal” black schools in the system 
are suitable for desegregation now, steps can and should 
be taken to change that condition before the fall of 1970. 
Unsuitability or inadequacy of a 1970 “black”  school to 
educate 1970 white pupils will not be considered by the 
court in passing upon plans for 1970 desegregation. The 
defendants contended and the court found in its April 23, 
1969 order that facilities and teachers in the various black 
schools were not measurably inferior to those in the 
various white schools. It is too late now to expect the 
court to proceed upon an opposite assumption.

4. The plan to reassign 1,245 students from presently 
overcrowded black schools is approved.

5. Reassignment of the Paw Creek students to Wood­
land is approved.

6. The proposals of the Board for restructure of atten­
dance lines; for consideration of pairing and grouping 
schools; for review of the construction programs; and for 
support programs, student exchange and faculty orienta­
tion are approved in principle, although for lack of specific 
detail and time table they are not approved as presented.

7. The Board is directed to prepare and present by 
November 17, 1969, the following:

(1) Plan for complete faculty desegregation for 
1970-71.

Order dated August 15, 1969



71a

(2) Plan for student desegregation for 1970-71, in­
cluding making full use of zoning, pairing, grouping, 
clustering, transportation and other techniques, com­
plete with statistics and maps and other data showing 
precisely what (subject to later movement of pupils) 
the assignment of pupils and teachers will be for the 
year 1970-71, having in mind as its goal for 1970-71 
the complete desegregation of the entire system to the 
maximum extent possible. (The assumption in the 
Board’s report that a school is desegregated when it 
has as many as 10% of a minority race in its student 
body is not accepted by the court, and neither the 
Board nor the court should be guided by such a figure.) 
“Possible” as used here refers to educational—not 
“political”—possibility. If Anson County, two-thirds 
black, can totally desegregate its schools in 1969, as 
they have now done, Mecklenburg County should be 
able to muster the political will to follow suit.

(3) A detailed report showing, complete with 
figures and maps, the location and nature of each 
construction project proposed or under way, and the 
effect this project may reasonably be expected to have 
upon the program of desegregating the schools.

8. Since a mid-city high school may prove most desir­
able, the Board is directed pending further orders of court 
not to divest itself of any land, options, rent arrangements 
or other access to or control over real estate which it may 
now have in the Second Ward area.

9. Jurisdiction is retained.
This the 15th day of August, 1969.

/ s /  J am es B. M cM illan  
James B. McMillan 

United States District Judge

Order dated August 15, 1969



72a

The School Board’s amended plan for desegregation of 
the Charlotte-Mecklenburg schools was approved by order 
of court dated August 15, 1969. The Board has now ten­
dered a modification to this plan which was filed today, 
August 29, 1969.

The modification relates to the facilities to be provided 
for those black children whose parents exercise freedom of 
choice to attend a black elementary school in the inner city 
instead of attending the white schools listed in the July 29, 
1969 plan which has already been approved by the court.

The amendment calls for using the building of former 
Irwin Avenue Junior High School with certain minor reno­
vations, instead of Zeb Yance School, and a limit of six 
hundred students upon those who would be admitted to 
this program at Irwin Avenue School. This part of the 
motion to amend is approved. The choice of building, per 
se, is a matter for the School Board, not the court.

The amendment proposes that the Irwin Avenue School 
would be operated “as an innovative school.” The court 
does not know what this means. If by this phrase is meant 
that anything will be done to make this school more attrac­
tive to the black students than the black schools they have 
been attending, then the program will constitute the_ loca­
tion and use of a school facility for the purpose of promot­
ing segregation which by previous decisions of this and 
other courts the defendants have been fully advised is un­
constitutional. Felder, et al. v. Harnett County, North Caro­
lina, 409 F.2d 1070 (4th Circuit, 1969) (decided April 22, 
1969), and cases cited therein. The addition of “innova­
tions” at Irwin Avenue School will not be approved by the 
court unless these “ innovations” have been arranged and

Order dated August 2 9 , 1 9 6 9



73a

provided for all the black students who transfer to white 
schools under the July 29,1969 plan of the Board previously 
approved. The phrase “innovative” may refer to what the 
Board has heretofore called “compensatory education.” 
The court has not yet been advised of any performance by 
the Board in line with the undertaking in its July 29, 1969 
plan to provide “compensatory education” for pupils who 
lag behind their classmates in academic achievement. Unless 
and until the court can be informed and satisfied that this 
“compensatory education” is provided in the other schools, 
the court is of the opinion that providing it in the Irwin 
Avenue School would set up a magnet to attract black 
children away from desegregated assignments and there­
fore on the present record at least that part of the plan is 
disapproved.

The proposal to provide transportation for any of the 
students attending Irwin Avenue School is expressly dis­
approved. The effect of providing transportation is to sub­
sidize at tax payers’ expense those who are actively seeking 
to defeat the constitutional mandate to desegregate the 
schools. No authority is advanced or suggested to justify 
such a flagrant violation of the law, and none has been 
imagined by the court. The Board is expressly restrained 
from and enjoined against providing transportation in any 
form to any student in the system, black or white, which 
may or might enable him to travel any part of the distance 
from his home to or from any school elected by or for him 
under “freedom of transfer” or “ freedom of choice,” except 
that the Board may provide transportation as previously 
ordered by this court to those students who elect to transfer 
or who are transferred by the Board from a school in which 
their race is in a majority to a school in which their race

Order dated August 29, 1969



74a

Order dated August 29, 1969

is in the minority. As this court pointed out before, bus 
transportation has too long been used as a tool to promote 
segregation. The year 1969 is too late in the day to start 
using this tool for that purpose in new situations.

This the 29th day of August, 1969.

/ s /  J am es B . M cM illan  
James B. McMillan 

United States District Judge



75a

On April 23, June 20 and August 15, 1969, orders were 
entered directing the defendants to submit a plan and a 
time table for the desegregation of the Charlotte-Mecklen- 
burg schools, to he completed by the fall of 1970. Nearly 
six months after the original order, faculty desegregation 
is well along and there have been a number of substantial 
improvements in the stated policies of the Board, including 
the stated assumption of duty by the Board to desegregate 
the schoools “at the earliest possible date.” Limited steps 
have been taken toward compliance with the pupil desegre­
gation provisions of that original order. However, the 
major part of the job remains undone, and no plan for 
desegregation of the entire system has apparently been 
voted on by the Board.

The latest order set November 17, 1969, as the revised 
date for defendants to file a complete plan and time table. 
Defendants have now filed a 15-page motion and supporting 
affidavit asking the court to extend by another two and 
one-half months, to February 1, 1970, the time for com­
pliance with the orders. Plaintiffs oppose the extension.

The justification advanced for this delay is that they 
have hired a systems analyst to re-draw attendance lines, 
and that the three months between August 15 and Novem­
ber 17 are not enough time to program a computer and 
prepare a plan.

It would be a happy day if the job could be turned over 
to a computer. A computer, if programmed objectively, 
could produce objective results; all could blame the machine 
(in addition to the court) for any unpleasant decisions. 
Also, the court would like to avoid unnecessary pressure 
on the school staff and administrators.

However, the information thus far available is inadequate 
to justify the extension. Computers are for time-saving,

O rder dated O ctober 1 0 , 1 9 6 9



76a

not delay. The computer work was estimated by the Board’s 
chosen systems analyst, Mr. Weil, to require ninety man 
days of work. He proposes to consume ninety calendar- 
days with this job! The Board’s motion says that their 
decisions about construction and location of 21 building 
projects (involving many millions of dollars) are to be 
held up pending development of the plan. The school bud­
get approaches fifty million dollars. The question fairly 
arises why the Board should not employ or assign more 
than one person at a time to feed the computer. Mr. Weil’s 
original plan, which is in evidence, was prepared in a very 
few days. The court has on file also three or four other 
plans, including at least one which local school officials say 
is educationally and technically feasible, which were pre­
pared in a few days each. The use of a computer does not 
appear to justify the delay.

Moreover, computers cannot make political nor legal de­
cisions ; they react to what is fed into them; and the request 
for postponement leaves the court to speculate over what 
will be fed into the computer. The motion does not say 
that Mr. Weil has been instructed by the Board to frame a 
plan to desegregate the schools; his commission, by a 
Board committee only, is limited to re-drawing attendance 
lines; the vague references in the Board’s motion to his 
instructions as to travel limitation and specified school 
capacities and desirable racial balance permit the inference, 
in fact, that his mission could be re-segregation of much 
of the system.

The motion also contains no commitment on the part of 
the Board to adopt any plan that the computer may pro­
duce; it gives no information about the Board’s intentions 
as to other desegregation methods it will use; and it prom­
ises no result from the delay except consideration by the

Order dated October 10, 1969



77a

Board of a computer plan for re-arranging school lines.
The motion is preoccupied with one method, and silent 

about results.
Before passing on the motion, the court has a duty to 

discover what the Board has accomplished since its July 29 
promises were made, and whether the extra time will pro­
mote genuine progress toward compliance with the Consti­
tution or whether it will just he time lost.

The Board is therefore directed to file with the court by 
October 29, 1969, the following information:

1. A full statistical report on the results of the 
closing of the inner-city schools and where the 4,200 
black pupils the Board proposed on July 29 to transfer 
to white schools are actually going to school as of 
October 10, 1969.

2. The figures regarding the effect of freedom of 
transfer on the desegregation proposed in the July 29, 
1969 plan for closing inner-city schools and transfer­
ring their students.

3. A report on freedom of choice or freedom of 
transfer: How many children, by school or location 
and race, chose to transfer out of and into the various 
schools for the 1969-70 year.

4. Full reports on the current numbers and races of 
the children and teachers in the system, school by 
school, with percentages of each race for each school.

5. A report on the children being provided bus 
transportation, school by school.

6. A description of what has been done to provide 
the compensatory education programs proposed in the 
July 29 plan and policy statement.

Order dated October 10, 1969



78a

7. A copy of all September and October, 1969, re­
ports of the Board to the Department of Health, Edu­
cation and Welfare.

Unless the Board has made the hard decisions needed to 
desegregate the schools, the time spent on a computer plan 
may well be just more time lost, and delaying decision may 
simply compress into fewer months next year the decisions 
that should have already been made. Therefore, in addi­
tion to the above, the Board is directed to answer by Octo­
ber 29, 1969, the following questions:

1. What, in verbatim detail, are the instructions 
that have been given to Mr. Weil!

2. What is Mr. Weil’s assigned mission or goal!

3. What areas of the district is he directed to in­
clude in his program of re-drawing attendance lines!

4. What areas, if any, is he directed to exclude!
5. What schools will his program affect!
6. Will pairing, grouping or clustering of schools 

be used by the Board as needed to supplement the com­
puter plan!

7. Will the Weil program of re-drawing attendance 
lines produce desegregation of all the schools by Sep­
tember, 1970!

8. If the Weil program does not produce desegrega­
tion of all the schools by September, 1970, what does 
the Board plan to do to produce that result!

9. Will any plan produced by the Weil method or 
any other re-drawing of attendance lines desegregate

Order dated October 10, 1969



79a

the schools if unrestricted freedom of transfer or free­
dom of choice is retained?

The value of the answers to these nine questions is sub­
stantially dependent on whether they are made by vote of 
the full Board or by non-voting representatives such as 
attorneys or other agents.

Pending receipt of the above information, the court will 
defer action on the request for time extension. Action will 
also be deferred for the present on the motions which have 
been filed by the plaintiffs which include requests for aboli­
tion of freedom of choice and appointment of an outside 
expert to devise a plan in default of Board action.

This the 10th day of October, 1969.

/ s /  J ames B. M cM illan  
James B. McMillan 

United States District Judge

Order dated October 10, 1969



80a

On October 29, 1969, the United States Supreme Court 
announced its decision in the Mississippi school case, Alex­
ander v. Holmes County, Case No. 632. That decision, the 
most significant in this field since Brown v. Board of Educa­
tion, peremptorily reversed an order of the Fifth Circuit 
Court of Appeals which, upon request of the United States 
Attorney General, had postponed until 1970 the effective 
desegregation of thirty Mississippi school districts, and 
had extended from August 11 to December 1, 1969, their 
deadline for filing desegregation plans. The Supreme Court 
held that the Court of Appeals

“ * * * should have denied all motions for additional 
time because continued operation of segregated schools 

■ under a standard of allowing all deliberate speed for 
desegregation is no longer constitutionally permissible. 
Under explicit holdings of this Court, the obliga­
tion of every school district is to terminate dual 
school systems at once and to operate now and here­
after only unitary schools. Griffin v. School Board, 
377 IT. S. 218, 234 (1964); Green v. School Board of 
New Kent County, 391 U. S. 430, 439, 442 (1968).” 
(Emphasis added.)

The Supreme Court further directed the Fifth Circuit Court 
of Appeals to make such orders as might be necessary for 
the immediate start in each district of the operation of a 
“totally unitary school system for all eligible pupils with­
out regard to race or color.”

It is this court’s opinion that the word “dual” in the 
Supreme Court opinion is another word for “segregated,” 
and that “unitary” is another word for “ desegregated” or 
“ integrated.” It is also this court’s opinion that although,

Order dated N ovem ber 7 , 1 9 6 9



81a

as defendants say, this is not Mississippi, nevertheless the 
Supreme Court’s prohibition against extension of time as 
laid down in Alexander v. Holmes County is binding upon 
this court and this school board, and bars the exercise of the 
court’s usual discretion in such matters, and that to allow 
the request of the defendants for extension of time to com­
ply with this court’s previous judgments would be contrary 
to the Supreme Court’s decision and should not be done.

Therefore, and based also upon the considerations set out 
in the memorandum opinion to be filed contemporaneously 
herewith, the motion of the defendants for extension of time 
for compliance with the court’s August 15, 1969 order is 
denied. Ruling on all other pending motions is deferred.

This the 7th day of November, 1969.

/ s /  J am bs B. M cM illan  
James B. McMillan 

United States District Judge

Order dated November 7, 1969



82a

P re lim in ar y  S ta te m e n t

On Wednesday, October 29, 1969, the United States 
Supreme Court announced its decision in the Mississippi 
school case (Alexander v. Holmes County, Case No. 632). 
That decision peremptorily reversed an order of the Fifth 
Circuit Court of Appeals which, upon request of the United 
States Attorney General, had postponed until 1970 the ef­
fective desegregation of thirty Mississippi school districts, 
and had extended from August 11 to December 1,1969, their 
deadline for filing desegregation plans. The Supreme Court 
held that the Court of Appeals

“ * * * should have denied all motions for additional 
time because continued operation of segregated schools 
under a standard of allowing all deliberate speed for 
desegregation is no longer constitutionally permissible. 
Under explicit holdings of this Court, the obliga­
tion of every school district is to terminate dual 
school systems at once and to operate now and here­
after only unitary schools. Griffin v. School Board, 
377 U. S. 218, 234 (1964); Green v. School Board of 
New Kent County, 391 U. S. 430, 439, 442 (1968).” 
(Emphasis added.)

The Supreme Court further directed the Fifth Circuit 
Court of Appeals to make such orders as might be neces­
sary for the immediate start in each district of the opera­
tion of a “ totally unitary school system for all eligible 
pupils without regard to race or color.”

The Mississippi school districts in the Holmes County 
case had degrees of desegregation ranging from nearly zero 
to about 16% of the Negro pupils. They like Mecklenburg 
hoped that their “freedom of choice” plans would satisfy 
the Constitution.

M em orandum  O pinion  dated N ovem ber 7 , 1 9 6 9



83a

The request for time extension, and all later proceedings 
in this cause, must be considered in light of the Supreme 
Court’s reaffirmation of the law which this court has been 
following, and in light of the urgency now required by the 
Holmes County decision.

T h e  R esults oe th e  1969 P lan

For pupil desegregation, the July 29, 1969 plan proposed 
to close seven black inner-city schools (most or all of which 
had previously been ear-marked for eventual “ phase-out” ) 
and to transfer their 3,000 students in specified numbers 
to named suburban schools. All the transferee schools ex­
cept West Charlotte were white. In addition, 1,245 black 
students, in specified numbers, were to be transferred from 
eight black or largely black schools to other designated 
suburban white schools.

The plan was accepted and approved because of its ap­
parent promise to extend the opportunities of a desegre­
gated education to over 4,000 new black students.

The plan has not been carried out as advertised: (a) 
Only 73 of the 1,245 scheduled for transfer from over­
crowded black schools have been so transferred; those 73 
were transferred not to the schools designated, but to other 
schools not mentioned in the plan, (b) It is now revealed 
that the closed schools, which were billed in July to pro­
duce 3,000 black students for transfer, actually had only 
2,627 students in them when the schools closed in June! 
(c) The Board allowed full freedom of choice for students 
from the closed schools, and those students in large num­
bers elected to go to Harding High School, and to Williams 
Junior High, Northwest Junior High and other black 
schools, instead of to the assigned white schools. As a re­
sult, Harding High School was transformed immediately

Memorandum Opinion dated November 7, 1969



84a

from 17% black to 47% black. This produced community 
consternation but no racial disorder among the students. 
The result may be deplorable, but the fact that the students 
at Harding High School have adjusted peaceably to the 
situation (like others before them at Cornelius, Davidson, 
Olympic, Randolph Road, Hawthorne and Elizabeth, and 
like the people of Anson and other North Carolina counties) 
shows that Mecklenburgers can live with desegregated 
schools, (d) The transfers proposed simply appear never 
to have been made to most of the suburban schools named 
in the plan, (e) The plan therefore transferred to white 
schools only 1,315 instead of the promised 4,245 black pu­
pils! Prom closed schools, the elementary transferees num­
bered 463 instead of the advertised 1,235; junior high 
transferees were 273 instead of 630; and senior high trans­
ferees were 506 instead of 1,135; and from overcrowded 
schools 73 instead of 1,245. If Harding (47% black, 630 
Negro students), Olympic (42% black, 376 Negro students), 
and Wilmore (49% black, 228 Negro students) should be 
allowed to continue their rapid shift from white to black, 
the net result of the 1969 pupil plan would be nearly zero.

Faculty desegregation has significantly and commendably 
improved since the April 27 order. Nevertheless, only six 
“black” schools and one “black” kindergarten have pre­
dominantly white faculties; and 98 out of the 106 schools 
and kindergartens in the system are today readily and 
obviously identifiable by the race of the heavy majority of 
their faculties.

The “performance gap” is wide.

Memorandum Opinion dated November 7, 1969



85a

Memorandum Opinion dated November 7, 1969

The Situation Today

The following table illustrates the racial distribution of 
the present school population:

Schools R eadily I dentifiable as W hite

Number of Numbers of Students
% W hite Schools W hite B lack Totals

100% 9 6,605 2 6,607
98-99% 9 4,801 49 4,850
95-97% 12 10,836 505 11,341
90-94% 17 14,070 1,243 15,313
86-89% 10 8,700 1,169 9,869

57 45,012 2,968 47,980

Schools R eadily Identifiable as B lack

Number of Numbers of Students
% B lack Schools W hite B lack Totals

100% 11 2 9,216 9,218
98-99% 5 41 3,432 3,473
90-97% 3 121 1,297 1,418
56-89% 6 989 2,252 3,241

25 1,153 16,197 17,350

Schools Not Readily Identifiable by Race

Number of Numbers of Students
% B lack Schools AV H IT E B lack Totals

32-49% 10 4,320 2,868 7.188
17-20% 8 5,363 1,230 6,593
22-29% 6 3,980 1,451 5,431

24 13,663 5,549 19,212
Totals : 106 59,828 24,714 84,542

Some of the data from the table, re-stated, is as follows:

Number of schools .................................................... 106
Number of white pupils .................................... ..... . 59,828
Number of black pupils ............................................  24,714



86a

Memorandum Opinion dated November 7, 1969

Total pupils ...............................................................  84,542
Per cent of white pupils ..........................................  71%
Per cent of black pupils .. .....................................  29%
Number of “white” schools .....................................  57
Number of white pupils in those schools................  45,012
Number of “black” schools ........    25
Number of black pupils in those schools..................  16,197
Number of schools not readily identifiable by race 24
Number of pupils in those schools ..........................  19,212
Number of schools 98-100% black ...........   16
Negro pupils in those schools .................................  12,648
Number of schools 98-100% white............................ 18
White pupils in those schools .................................  11,406

Of.the 24,714 Negroes in the schools, something above 
8,500 are attending “white” or schools not readily identifi­
able by race. More than 16,000, however, are obviously 
still in all-black or predominantly black schools. The 9,216 
in 100% black situations are considerably more than the 
number of black students in Charlotte in 1954 at the time 
of the first Brown decision. The black school problem has 
not been solved.

The schools are still in major part segregated or “dual” 
rather than desegregated or “unitary.”

The black schools are for the most part in black residen­
tial areas. However, that does not make their segregation 
constitutionally benign. In previous opinions the facts re­
specting their locations, their controlled size and their 
population have already been found. Briefly summarized, 
these facts are that the present location of white schools 
in white areas and of black schools in black areas is the 
result of a varied group of elements of public and private 
action, all deriving their basic strength originally from



87a

public law or state or local governmental action. These ele­
ments include among others the legal separation of the 
races in schools, school busses, public accommodations and 
housing; racial restrictions in deeds to land; zoning ordi­
nances ; city planning; urban renewal; location of public 
low rent housing; and the actions of the present School 
Board and others, before and since 1954, in locating and 
controlling the capacity of schools so that there would 
usually be black schools handy to black neighborhoods and 
white schools for white neighborhoods. There is so much 
state action embedded in and shaping these events that the 
resulting segregation is not innocent or “ de facto,”  and the 
resulting schools are not “unitary” or desegregated.

F reedom  of C hoice

Freedom of choice has tended to perpetuate segregation 
by allowing children to get out of schools where their race 
would be in a minority. The essential failure of the Board’s 
1969 pupil plan was in good measure due to freedom of 
choice.

As the court recalls the evidence, it shows that no white 
students have ever chosen to attend any of the “ black” 
schools.

Freedom of choice does not make a segregated school 
system lawful. As the Supreme Court said in Green v. 
New Kent County, 391 U.S. 430 (1968) :

“ * * * If there are reasonably available other ways, 
such for illustration as zoning, promising speedier and 
more effective conversion to a unitary, nonracial school 
system, ‘freedom of choice’ must be held unacceptable.”

Redrawing attendance lines is not likely to accomplish 
anything stable toward obeying the constitutional mandate

Memorandum Opinion dated November 7, 1969



88a

as long as freedom of choice or freedom of transfer is re­
tained. The operation of these schools for the foreseeable 
future should not include freedom of choice or transfer 
except to the extent that it reduces segregation, although 
of course the Board under its statutory power of assign­
ment can assign any pupil to any school for any lawful 
reason.

T h e  “ N atio n al  S tandings”

The defendants filed some statistics concerning the one 
hundred largest school systems in the country, and say that 
Charlotte-Mecklenburg desegregation compares favorably 
with that in most of those systems. That may well be so. 
The court is not trying cases involving the other ninety- 
nine school boards, and has not studied any evidence about 
them and does not know their factual nor legal problems. 
The court in its first order of April 23, 1969 has noted the 
substantial desegregation achieved in certain areas in the 
Charlotte-Mecklenburg system, and is still aware of it. The 
fact that other communities might be more backward in 
observing the Constitution than Mecklenburg would hardly 
seem to support denial of constitutional rights to Mecklen­
burg citizens. The court doubts that a double standard 
exists. The Attorney General of the United States has 
filed suit for desegregation in Connecticut as well as in the 
whole State of Georgia. One of the most stringent de­
segregation orders on record was entered recently against 
a school hoard in the City of Chicago. Constitutional rights 
will not he denied here simply because they may be denied 
or delayed elsewhere. There is no “Dow-Jones average” 
for such rights. With all due deference to the complexities 
of this school system, which have already been fully noted

Memorandum Opinion dated November 7, 1969



89a

in previous opinions, the Board and the community must 
still observe the Constitution. The fact that the school 
system ranks high in some artificial “national standings” 
or that one-third of the Negro students do attend desegre­
gated schools or predominantly white schools is no answer 
to the constitutional problems presented by sixteen thou­
sand black Mecklenburgers still going to all-black or largely 
black schools in this predominantly white community.

T h e  P rospects eor t h e  F uture

The second part of the Board’s report is answers to the 
court’s questions designed to determine whether the Board 
has made the hard decisions necessary to desegregate the 
schoos.

The answers show that those decisions have not been 
made.

The computer expert has been given restrictions which, 
taken at face value, indicate that his work will not lead to 
desegregation of all the schools. One such restriction has 
the apparent effect of limiting attendance to those who live 
a maximum of roughly a mile and a half from the school. 
(This is the requirement that all grids or areas must be 
“contiguous to the home grid or to grids which are con­
tiguous to the home grid.” ) Another is the limitation that 
no school attended by whites should have less than a 60% 
white student population. (Unless this were coupled with 
a further requirement that no school attended by blacks shall 
have more than a 40% black student population, this appears 
to put the black schools “off limits” for his study.) The 
original verified motion of the School Board contained two 
other limitations. Those were that “a ‘desirable’ racial 
balance should be obtained” and that “reasonable limitation 
on distance of travel for a child has been imposed.” The

Memorandum Opinion dated November 7, 1969



90a

record is silent on what these limitations mean and whether 
they are still in effect.

The Board has not accepted pairing and grouping and 
clustering of schools as legitimate techniques, but has 
simply indicated that it will “consider” those techniques 
where they offer “ reasonable prospects of producing stable 
desegregation * * *.” (Emphasis added.)

The report states unconditionally that:

“The information supplied by the systems analysis ap­
proach will not produce desegregation of all schools 
by September, 1970. Dramatic results are expected. 
It is hoped that the number of all white and all black 
schools will he substantially reduced. The number of 
such schools cannot be determined at this time.” (Em­
phasis added.)

The report also says that:
“ * * * The Board of Education does not feel that it will 
be possible to produce pupil desegregation in each 
school by September, 1970. It is expected that faculties 
will fairly represent a cross section of the total faculty 
so that most and possibly all schools will not have a 
racially identifiable faculty. Furthermore, the restruc­
turing of attendance lines coupled with faculty de­
segregation may satisfy constitutional requirements.” 
(Emphasis added.)

The School Board is sharply divided in the expressed 
views of its members. From the testimony of its members, 
and from the latest report, it cannot be concluded that a 
majority of its members have accepted the court’s orders 
as representing the law which applies to the local schools.

Memorandum Opinion dated November 7, 1969



91a

By the responses to the October 10 questions, the Board 
has indicated that its members do not accept the duty to 
desegregate the schools at any ascertainable time; and 
they have clearly indicated that they intend not to do it 
effective in the fall of 1970. They have also demonstrated 
a yawning gap between predictions and performance.

Withholding or delaying the constitutional rights of 
children to equal educational opportunity on such vague 
terms as these is not the province of the School Board nor 
of this court.

Furthermore, since the Supreme Court has now pro­
hibited lower courts from granting extensions of time, it 
may well be that the gradual time table laid down by this 
court’s April 23, 1969 order contemplating substantial 
progress in 1969 and complete desegregation by September 
1970) was and is too lenient.

If the plan tendered by the School Board on November 
17, 1969 is thorough and informative, and sufficiently shows 
an unconditional purpose on the part of the Board to com­
plete its job effective by September, 1970, the Board may 
perhaps be allowed to adhere to the existing time table. 
Certainly a Mecklenburg plan ought if possible to be pre­
pared by the Mecklenburg School Board and its large and 
experienced staff, rather than by outside experts. Decision 
on that and other pending questions must await further 
developments, including the Board’s November 17, 1969 
report.

C onclusions

The school system is still discriminatorily segregated by 
race and maintained that way by state action. In many 
ways it is not in compliance with the Constitution. The 
Board has not shown a valid basis for an extension of time

Memorandum Opinion dated November 7, 1969



92a

to comply with the court’s judgment; it has shown no in­
tention to comply by any particular time with the consti­
tutional mandate to desegregate the schools; and it has 
suggested its intention not to comply by September, 1970. 
In spite of those facts the court would like as a matter of 
discretion to grant some of the time extension requested, 
hut is of the considered opinion that in Alexander v. Holmes 
County the Supreme Court has prohibited the exercise of 
such discretion. The findings of fact in this opinion will 
be considered, along with facts found in previous orders, 
opinions and memoranda, as the basis for such future judg­
ments and orders as may be appropriate, including such 
judgments and orders as may be appropriate upon receipt 
of the Board’s November 17, 1969 plan. All statements of 
fact in this memorandum opinion, whether or not labeled 
as such, shall be deemed findings of fact, as necessary to 
support such judgments and orders.

This the 7th day of November, 1969.

/ s /  J ames B. M cM illan  
James B. McMillan 

United States District Judge

Memorandum Opinion dated November 7, 1969



93a

On April 23, June 20 and August 15, 1969, the defendant 
school board was ordered to file plans to desegregate the 
schools of Charlotte and Mecklenburg County, North 
Carolina. The defendants have admitted their duty to 
desegregate the schools; considerable progress has been 
made toward desegregation of faculties; and progress, pre­
viously noted, has been made in some other areas. The 
schools, however, remain for the most part unlawfully 
segregated. The facts supporting that conclusion in all 
the court’s previous orders are reiterated here.

The issue is what to do pursuant to the board’s latest 
plan, filed November 17, 1969. The plan recites the follow­
ing ostensible purpose:

“ The Board of Education has embarked upon a com­
prehensive program for the purpose of restructuring 
attendance lines involving all schools and all students 
served by the system. The primary purpose of this 
program is to achieve further desegregation in as 
many schools as possible * *

The plan says that a computer analyst has been hired 
to draw up various theoretical possible school zone atten­
dance lines, and that school personnel, before February 1, 
1970, will draw the actual lines.

The details of the plan show that it contains no promise 
nor likelihood of desegregating the schools.

The plan and the report accompanying it say (emphasis 
added):

“No school district to which white students are assigned 
should have less than 60 per cent white student popula­
tion to avoid ‘tipping.’ ” (Plan, page 2.)

*  #  *  *  *

O pinion  and O rder dated D ecem ber 1 , 1 9 6 9



94a

“ . . .  it is the plan of this School Board to limit schools 
to which white students are assigned to those schools 
in which it is possible to provide a student population 
which is at least 60 per cent white.” (Plan, page 5.)

* * # * *

“In determining the initial attendance lines, the ratio 
of black to white students will not exceed 60% white— 
4 0 %  black W here  th e  S chool is  D esegregated.”  
(Report, page 5.)

# * * # *
“A majority of the Board of Education believes that 
the constitutional requirements of desegregation will 
be achieved by the restructuring of attendance lines, 
the restricting freedom of transfer, and other provi­
sions of this plan. The. majority of the Board has, 
therefore, discarded further consideration of pairing, 
grouping, clustering and transporting.”  (Plan, page 6.)

The strongest claim made in the plan with respect to 
the all-black schools is that among 43 elementary schools 
in the densely populated areas of Charlotte it is “ theoreti­
cally [school board’s emphasis] possible to populate these 
schools with the following ratios of black students: . . . 
Seven (7) schools in which the black student population 
is 100 per cent.” (Plan, pages 3 and 4.) Since the 100% 
black elementary schools in the system (Billingsville, Marie 
Davis, Double Oaks, First Ward, Lincoln Heights, Oak- 
lawn and University Park) number exactly seven, this 
language obviously proposes that these seven schools will 
remain all-black.

The plan contains no factual information nor estimate 
regarding plans for desegregation of the 31 other elemen­

Opinion and Order dated December 1, 1969



95a

tary schools, the 20 junior high schools, and the 10 senior 
high schools in the system.

Concerning faculty desegregation the plan says:

“During the 1970-71 school year, the Board of Educa­
tion will staff each school so that the faculty at each 
school will be predominantly white and, where practi­
cable will reflect the ratio of white and black teachers 
employed in the total faculty of the school system.” 
(Plan, page 7.)

With regard to the physical facilities, the court on 
August 15, 1969, ordered the defendants to produce by 
November 17 “A detailed report showing, complete with 
figures and maps, the location and nature of each construc­
tion project proposed or under way, and the effect this 
project may reasonably be expected to have upon the pro­
gram of desegregating the schools.” In response to that 
order, the plan lists the names of 21 out of 91 projects, 
expresses a few opinions and conclusions about the build­
ing program, and promises a partial study by February 1, 
1970 and a “general long range study” “ by June of 1970,” 
but it sheds no factual light on the effect of any part of 
the building program on the segregation issue. Since the 
board has, in seven months, failed to produce a program 
for desegregation, it is only natural that they can not 
predict the effect of any particular building project on such 
a program. The court has yet not received information 
necessary to appraise the effects of current building 
activity on the current unprogrammed course of desegre­
gation.

When the plan is understood, it boils down to this:
1. It proposes to re-draw school zone lines, and to 

restrict freedom of choice, which the court had already

Opinion and Order dated December 1, 1969



96a

advised the board to eliminate except where it would 
promote desegregation. It states no definable desegre­
gation goals.

2. The “ 60-40” ratio is a one-way street. The plan 
implies that there will be no action to produce desegre­
gation in schools with black populations above 40%, 
and that no white students are to be assigned to such 
schools.

3. Continued operation of all seven of the all-black 
elementary schools would be assured. The same would 
appear to be true 'for the entire group of 25 mostly 
“black” schools, mentioned in the court’s November 7 
order, which serve 16,197 of the 24,714 black students 
in the system.

4. Transportation to aid children transferring out 
of segregated situations (which was ordered by the 
court on April 23 as a condition of any freedom of 
transfer plan, and which was a part of this plan as 
advertised in the board’s October 29 report) has been 
eliminated from the plan as filed with the court. 
Inevitable effects of this action would be to violate 
the court order and to leave the children recently re­
assigned from seven closed black inner-city schools 
with no way to reach the suburban schools they now 
attend! This is re-segregation.

5. Other methods (pairing, grouping, clustering of 
schools) which could reduce or eliminate segregation— 
and which the board, on October 29 when it was asking 
for a time extension, promised to consider—have now 
been expressly left out of the plan.

6. No time is set to complete the job of faculty and 
pupil desegregation.

Opinion and Order dated December 1, 1969



97a

7. In the written argument (“Report” ) filed with 
the plan, with the candor characteristic of excellent 
attorneys, the board’s attorneys say:

“It is important that the Court does not construe 
the information submitted in the plan relating 
to racial ratios of elementary schools as being 
in the nature of a guarantee by the Board since 
it is anticipated the results of restructuring the 
attendance lines may produce a greater or lesser 
degree of desegregation, the extent of which can­
not be determined at this time.”  (Report, page 4; 
emphasis added.)

The defendants have the burden to desegregate the 
schools and to show any plan they propose will desegregate 
the controls. They have not carried that burden. Re-draw­
ing school zone lines won’t eliminate segregation unless the 
decision to desegregate has first been made.

T h e  S chools Abb St ill  S egbegated

The extent to which the schools are still segregated was 
illustrated by the information set out in previous orders 
including the order of November 7, 1969. Nearly 13,000 
out of 24,714 black students still attend schools that are 
98% to 100% black. Over 16,000 black students still attend 
predominantly black schools. Nine-tenths of the faculties 
are still obviously “black” or “white.” Over 45,000 out of
59,000 white students still attend schools which are ob­
viously “white.”

T h e  R esult  is U nequal  E ducation

The following table further illustrates the results. 
Groups A and B show that sixth graders, in the seven

Opinion and Order dated December 1, 1969



98a

Opinion and Order dated December 1, 1969

100% black schools the plan would retain, perform at about 
fourth grade levels, while their counterparts in the nine 
100% white elementary schools perform at fifth to seventh 
grade levels. Group C shows that sixth graders in 
Barringer, which changed in three years from 100% middle 
income white to 84% Negro, showed a performance drop 
of IV2 to 2 years. Group D shows however that Randolph 
Road, 72% white and 28% Negro, has eighth grade per­
formance results approximately comparable to Eastway, 
which is 96% white, and Randolph results are approxi­
mately two years ahead of all-black Williams and North­
west. Until unlawful segregation is eliminated, it is idle 
to speculate whether some of this gap can be charged to 
racial differences or to “socio-economic-cultural” lag.



GROUP

GROUP

GROUP

GROUP

I f  th e  c o u r t s  s h o u ld  a c c e p t  t h e  d e f e n d a n t s '  c o n t e n t i o n  t h a t  a l l  
t h e y  have  t o  do i s  r e -d r a w  a t t e n d a n c e  l i n e s  and a l l o w  a ty p e  o f  freed o m  
o f  c h o i c e ,  t w o - t h i r d s  o r  more o f  th e  b l a c k  c h i l d r e n  in  M e c k le n b u rg  
County  w ou ld  b e  r e l e g a t e d  p e r m a n e n t ly  t o  t h i s  k in d  o f  s e p a r a t e  b u t  
u n e q u a l e d u c a t i o n .

A -  100%  B la c k

AVERAGE ACHIEVEMENT TEST SCORES, GRADE 6 ,  REPORTED IN  
GRADE EQUIVALENT, 196  5 - 6 6 / 1 9 6 8 - 6  9

B

C

E le m e n ta ry WM PM SP LANG '  ACM ACN AAPP SS SC

B i l l i n q s v i l l e

r t t j j r a
-'Ll- - ‘i f

T f i i l T u t
- I k  - ' I f

us i i i e  
-  i f

Tfis 'H i, i f  i s  / f tp  
-'U , - t f . - ' i k  - ' I f

I f l S / f l l
- Xu -  -t ?

ITUS / f l p  
-Ik - ' l ?

/ fL S  HUS 
- 'U s  -

/ I I S  I f  i t
- xl -  i t

3 7 / 3 9 ' 3 9 /4 2 4 3 / 4 5 3 6 /3 7 3 7 / 3 8 4 1 / 4 4 " 3 8 /3 9 4 2 / 4 3 "37738
M a rie  D a v is 4 2 / 4 3 4 2 / 4 4 4 9 / 4 8 3 9 /4 1 4 3 / 4 5 4 5 / 4 8 4 3 / 4 1 4 3 / 4 5 3 9 / 4 0
D ouble  Oaks 4 4 / 4 0 4 2 / 4 0 4 9 / 4 6 3 5 /3 6 4 1 / 3 9 4 5 / 4 4 4 1 / 3 7 4 4 / 4 0 4 1 / 3 7
F i r s t  Ward 4 3 / 4 0 4 2 / 4 1 5 0 / 4 8 3 9 /3 6 4 0 / 3 9 4 4 / 4 6 4 3 / 4 1 4 8 / 4 4 4 2 / 4 0
L i n c o ln  H e iq h t s 4 5 / 4 4 4 4 / 4 4 5 2 / 4 9 4 4 / 4 2 4 5 / 4 3 4 6 / 4 8 4 3 / 4 1 4 7 / 4 6 4 2 / 4 1
Oaklawn 4 4 / 4 4 4 2 / 4 5 5 0 /5 3 4 2 / 4 7 4 1 / 4 5 5 0 / 4  9 4 3 / 4 4 4 1 / 4 9 4 0 / 4 7
U n i v e r s i t y  Park 4 4 / 4 4 4 4 / 4 7 5 1 / 4 8 4 3 / 4 3 4 0 / 4 4 4 6 / 4 8 4 1 / 4 4 4 6 / 4 6 4 1 / 4 3

100%  W h ite  
E le m e n ta ry

D e v o n sh ire 5 2 / 5 9 5 4 /6 2 5 7 / 6 0 5 7 / 6 4 4 9 / 5 3 5 3 / 6  3 5 5 / 5 9 5 7 /6 4 5 7 / 6  5
Hidden V a l l e y / 5 9 / 6 2 / 6 1 / 6 2 / 5 1 / 6 0 / 5 9 / 6 4 / 6 7
M erry Oaks 6 2 / 6 0 6 6 / 6 6 6 6 / 6 7 6 6 / 7 1 5 3 /5 4 5 9 / 6  5 6 7 / 6 4 7 0 / 6 8 7 3 /7 2
M o n t c l a i r e 6 6 / 6  7 6 8 / 7 2 6 9 / 7 0 7 1 /7 6 5 8 / 6 0 6 1 / 6 7 6 6 / 6 8 7 0 / 7 1 7 6 /7 7
Pinewood 6 7 / 6 4 6 8 / 6 8 7 1 / 6 8 7 1 / 7 1 5 8 /6 1 6 2 / 6 7 6 8 / 7 1 7 2 / 7 1 7 3 / 7 0
Rama Road 6 8 / 6 7 6 8 / 7 2 7 0 / 7 1 7 3 /7 6 5 8 /6 1 6 4 / 6 7 7 0 / 7 0 7 2 / 7 3 7 6 / 7 8
Shamrock Gardens 5 9 /5 6 6 1 / 5 7 6 6 / 5 7 6 4 / 6 2 5 2 / 5 3 5 8 /5 7 6 3 / 5 7 6 5 / 6 1 6 2 / 6 1
Thomasboro 5 8 / 5 5 5 9 / 5 5 6 3 / 5 8 5 9 / 5 8 5 2 /5 1 5 5 /5 7 6 0 / 5 6 6 3 / 5 9 6 4 / 6 1
W in d sor  Park 6 1 / 6 4 6 3 / 6 8 6 1 / 6 6 6 5 /6  9 5 5 /5 3 5 9 / 6  3 6 3 / 6 2 6 5 / 6  9 6 7 / 7 2

B a r r in q e r 6 1 %  6^ 6 3 % 6 * 64*/5C^ 6 6 %  2* 5 3 % ^ 5 9*/ 4 E? 64* / 4 # 6 5 %  7̂ 6 8 % ?

* 1 0 0 %  w h ite  in  1 9 6 5  
#  84% b l a c k  in  1 9 6 8 - 6  9

AVERAGE ACHIEVEMENT TEST SCORES, GRADE 8 ,  REPORTED IN 
GRADE EQUIVALENT, 196 5 - 6 6 / 1 9 6 8 - 6  9

J u n io r  Hiqh PM SP LANG ACM ACN AAPP SS SC 1

Randolph Road (28% bta-V)

/ fZ S T jn
- ' u  - x r

I f  us it  u i  
-■bu- 'it

/ f i t
- 'k k - 'n )

i f  u s  /puff 
1 'kk - 'i t

/ ?is l7iP  
-'Ik - 'if

S /iiT tlfi
-■U J-'it

V B 'U " 7&2 7 1 4 / 62 779 / 7 6 / 7  9 75T
W i l l i a m s  (100%  b la c k ) 5 5 /5 2 6 7 / 6 4 5 5 /5 2 5 2 / 4 9 5 8 /6 1 5 8 /5 5 5 6 /5 6 5 5 /5 6
N o rth w e st  (100%  b l a c k ) 5 9 /5 8 7 3 /7 1 5 9 /5 6 5 4 / 5 0 6 0 / 6 1 5 8 /5 8 5 9 /5 7 5 9 /5 8
Eastw av (96% w h ite ) 8 4 / 8 2 8 5 /8 6 8 3 / 8 1 7 4 /6 7 7 9 /8 2 8 1 / 7 5 8 3 / 8 2 8 7 /8 7



99a



100a

T he  L aw  S t ill  R equires D esegregation

Segregation in public schools was outlawed by the deci­
sions of the Supreme Court in Brown v. Board of Educa­
tion, 347 U. S. 483 (1954) and 349 U. S. 294 (1955).

The first Brown opinion (Brown 1) held that racial 
segregation, even though physical facilities and other 
tangible factors might be equal, deprives Negro children 
of equal educational opportunities. The Court recalled 
prior decisions that segregation of graduate students was 
unlawful because it restricted the student’s “ability to 
study, to engage in discussions and exchange views with 
other students, and, in general, to learn his profession.” 
The Court said:

“Such considerations apply with added force to chil­
dren in grade and high schools. To separate them 
from others of similar age and qualifications solely 
because of their race generates a feeling of inferiority 
as to their status in the community that may affect 
their hearts and minds in a way unlikely ever to be 
undone.”

Quoting a lower court opinion, the Supreme Court con­
tinued :

“ ‘Segregation of white and colored children in public 
schools has a detrimental effect upon the colored chil­
dren. The impact is greater when it has the sanction 
of the law; for the policy of separating the races is 
usually interpreted as denoting the inferiority of the 
Negro group. A sense of inferiority affects the motiva­
tion of a child to learn. Segregation with the sanction 
of law, therefore, has a tendence to [retard] the edu­
cational and mental development of Negro children

0-pinion and Order dated December 1, 1969



101a

and to deprive them of some of the benefits they would 
receive in a racial [ly] integrated school system.’

“We conclude that in the field of public education the 
doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal. * * 
(Emphasis added.)

* * * * *
“ * * * Such segregation has long been a nationwide 
problem, not merely one of sectional concern.”  (Em­
phasis added.)

The selection of cases for the Brown decision demonstrates 
the nationwide reach of that concern; Brown lived in Kan­
sas and the defendant board of education was that of 
Topeka, Kansas; defendants in companion cases included 
school authorities in Delaware and the District of Colum­
bia. Later important cases have involved not just Southern 
schools, but also schools in New York, Chicago, Ohio, 
Denver, Oklahoma City, Kentucky, Connecticut and other 
widely scattered places.

Court decisions setting out the principles upon which the 
various orders of this court have been based include the 
following:

S uprem e  C ourt Cases

Alexander v. Holmes County (Mississippi), No. 632 (Octo­
ber 29, 1969).
Brown v. Board of Education of Topeka (Kansas), 347 
U. S. 483 (1954), 349 U. S. 294 (1955).
Cooper, Members of the Board of Directors of the Little 
Rock (Arkansas) Independent School District v. Aaron, 
358 U. S. 1 (1958).

Opinion and Order dated December 1, 1969



102a

Green v. County School Board of New Kent County (Vir­
ginia), 391 U. S. 430 (1968).
Griffin v. County School Board of Prince Edward County 
(Virginia), 377 U. S. 218 (1964).
Keyes v. Denver (Colorado) School District Number 1, 
Application for Vacation of Stay (Justice Brennan, Su­
preme Court, August 29, 1969).
Monroe v. Board of Commissioners of the City of Jackson 
(Tennessee), 391 U. S. 450 (1968).
Raney v. Board of Education of the Gould School District 
(Arkansas), 391 XL S. 443 (1968).
United States v. Montgomery County (Alabama) Board of 
Education, 395 U. S. 225 (1969).

C ir cu it  C ourt C ases

Brewer v. School Board of City of Norfolk (Virginia), 397 
F.2d 37 (4th Cir., 1968).
Felder v. Harnett County (North Carolina) Board of Edu­
cation, 409 F.2d 1070 (4th Cir., 1969).
Wanner v. County School Board of Arlington County 
(Virginia), 357 F.2d 452 (4th Cir., 1966).
Henry v. Clarksdale (Mississippi) Municipal Separate 
School District, 409 F.2d 682 (5th Cir., 1969) (petition for 
cert, filed, 38 U.S.L.W. 3086) (U. S. 9/2/69) (No. 545).
United States v. Greenwood (Mississippi) Municipal Sep­
arate School District, 406 F.2d 1086 (5th Cir., 1969) (cert, 
denied, 395 U. S. 907 (1969)).
United States v. Hinds County School Board, Nos. 28030 
and 28042 (5th Cir., July 3, 1969).

Opinion cmd Order dated December 1, 1969



103a

Clemons v. Board of Education of Hillsboro, Ohio, 228 F.2d 
853 (6th Cir., 1956) {cert, denied, 350 U. S. 1006).
United States v. School District 151 of Cook County} Illi­
nois (Chicago), 404 F.2d 1125 (7th Cir., 1968) (rehearing 
denied, January 27, 1969).

D istrict  C ourt  Cases

Eaton v. New Hanover County (North Carolina) Board of 
Education, No. 1022 (E.D. N.C., July 14, 1969).
Keyes v. School District Number One, Denver (Colorado), 
303 F. Supp. 289 (D. Colo., 1969).

Some of these principles which apply to the Charlotte- 
Mecklenburg situation are:

1. Racial segregation in public schools is unlawful, 
Brown I; Green v. New Kent County, Virginia; Clemons v. 
Hillsboro, Ohio. Such segregation is unlawful even though 
not required nor authorized by state statute, Clemons v. 
Hillsboro. Acts of school boards perpetuating or restoring 
separation of the races in schools are de jure, unlawful dis­
crimination, Cooper v. Aaron; Keyes v. Denver, Colorado 
School Board (August 14, 1969), approved by the Supreme 
Court of the United States two weeks later, Keyes v. Den­
ver, U. S. Supreme Court, August 29, 1969.

2. Drawing school zone lines, like “ freedom of transfer,” 
is not an end in itself; and a plan of geographic zoning 
which perpetuates discriminatory segregation is unlawful, 
Keyes v. Denver; Brewer v. Norfolk; Clemons v. Hillsboro; 
Henry v. Clarksdale, Mississippi; United States v. Hinds 
County; United States v. Greenwood.

Opinion and Order dated December 1, 1969



104a

3. No procedure, plan, method or gimmick will legalize 
state maintained segregation. The constitutional test of a 
plan is whether it gets rid of segregation in public schools, 
and does it “now,” Green v. New Kent County; Monroe v. 
Jackson; Alexander v. Holmes County.

4. Good faith of the school authorities, if it exists, does 
not excuse failure to desegregate the schools. “ . . . The 
availability to the Board of other more promising courses 
of action may indicate a lack of good faith-,; and at the least 
it places a heavy burden upon the Board to explain its 
preference for an apparently less effective method.” Green 
v. New Kent County. (Emphasis added.)

5. “Natural boundaries” for school zones are not con­
stitutionally controlling. If a zone encloses a black school 
in a district like this one where white students are in a 
heavy (71% white, 29% black) majority, the “naturalness” 
of the boundary or the existence of reasons for the boundary 
unrelated to segregation does not excuse the failure to de­
segregate the school, Keyes v. Denver, Colorado; Henry v. 
Clarksdale; Clemons v. Hillsboro.

6. It is appropriate for courts to require that school 
faculties be desegregated by formula, if necessary, and by 
a definite time or on a definite schedule, United States v. 
Montgomery. Faculty assignments so that each school has 
approximately the same ratio of black teachers as the 
ratio of black teachers in the school system at large are 
appropriate and necessary to equalize the quality of in­
struction in this school system, United States v. Montgom­
ery; United States v. Cook County; Eaton v. Neiv Hanover 
County (North Carolina).

Opinion and Order dated December 1, 1969



105a

7. Bus transportation as a means to eliminate segrega­
tion results of discrimination may validly be employed, 
Keyes v. Denver; United States v. Cook County, Illinois, 
404 F.2d 1125, 1130 (1969).

8. Race may be considered in eliminating segregation in 
a school system, Wanner v. Arlington County; Virginia; 
United States v. Cook County; Green v. New Kent Cou/nty.

9. “ . . . Whatever plan is adopted will require evalua­
tion in practice and the court should retain jurisdiction 
until it is clear that state imposed segregation has been 
completely removed.” Green v. New Kent County; Baney 
v. Board of Education.

10. The alleged high cost of desegregating schools 
(which the court does not find to be a fact) would not be a 
valid legal argument against desegregation, Griffin v. 
School Board; United States v. Cook County, Illinois.

11. The fact that public opinion may oppose desegregat­
ing the schools is no valid argument against doing it, Cooper 
v. Aaron, Green v. New Kent County; Monroe v. Jackson.

12. Fixed ratios of pupils in particular schools will not 
be set. If the board in one of its three tries had presented 
a plan for desegregation, the court would have sought ways 
to approve variations in pupil ratios. In default of any 
such plan from the school board, the court will start with 
the thought, originally advanced in the order of April 23, 
that efforts should be made to reach a 71-29 ratio in the 
various schools so that there will be no basis for contending 
that one school is racially different from the others, but to 
understand that variations from that norm may be un­
avoidable.

Opinion and Order dated December 1, 1969



106a

13. School location and construction and renovation and 
enlargement affect desegregation. Courts may properly 
restrain construction and other changes in location or ca­
pacity of school properties until a showing is made that 
such change will promote desegregation rather than frus­
trate it, Felder v. Harnett County.

14. Where pupils live must not control where they are 
assigned to school, if some other approach is necessary in 
order to eliminate racial segregation, Green v. New Kent 
County; Keyes v. Denver; Eaton v. New Hanover County, 
North Carolina Board of Education.

15. On the facts in this record and with this background 
of de jure segregation extending full fifteen years since 
Brown I, this court is of the opinion that all the black and 
predominantly black schools in the system are illegally 
segregated, Green v. New Kent County; Henry v. Clarks- 
dale; United States v. Hinds County.

16. The school hoard is endowed by Chapter 115, Sec­
tion 176 of the General Statutes of North Carolina with 
“full and complete” and “final” authority to assign students 
to whatever schools the board chooses to assign them. The 
board may not shift this statutory burden to others. In 
Green v. Neic Kent County, the Supreme Court said of 
“ freedom of choice” :

“Rather than foster the dismantling of the dual system 
the plan has operated simply to burden children and 
their parents with a responsibility which Brown II 
placed squarely on the School Board. The Board must 
. . . fashion steps which promise realistically to convert

Opinion and Order dated December 1, 1969 ,



107a

promptly to a system without a ‘white’ school and a 
‘Negro’ school but just schools.”

17. Pairing of grades has been expressly approved by 
the appellate courts, Green v. New Kent County; Felder 
v. Harnett County. Pairing, grouping, clustering, and per­
haps other methods may and will be considered and used 
if necessary to desegregate the schools.

18. Some 25,000 out of 84,000 children in this county 
ride school busses each day, and the number eligible for 
transportation under present rules may be more than
30,000. A transportation system already this massive may 
be adaptable to effective use in desegregating schools.

19. The school board has a duty to promote acceptance 
of and compliance with the law. In a concurring opinion in 
Cooper v. Aaron, 358 U. S. at 26 (1958), Justice Frank­
furter said:

“ That the responsibility of those who exercise power in 
a democratic government is not to reflect inflamed pub­
lic feeling but to help form its understanding, is espe­
cially true when they are confronted with a problem 
like a racially discriminating public school system. 
This is the lesson to be drawn from the heartening ex­
perience in ending enforced racial segregation in the 
public schools in cities with Negro populations of large 
proportions. Compliance with decisions of this Court, 
as the constitutional organ of the supreme Law of the 
Land, has often, throughout our history, depended on 
active support by state and local authorities. It pre­
supposes such support. To withhold it, and indeed to 
use political power to try to paralyze the supreme Law,

Opinion and Order dated December 1, 1969



108a

precludes the maintenance of our federal system as we 
have known and cherished it for one hundred and 
seventy years.

“Lincoln’s appeal to ‘the better angels of our nature’ 
failed to avert a fratricidal war. But the compassionate 
wisdom of Lincoln’s First and Second Inaugurals be­
queathed to the Union, cemented with blood, a moral 
heritage which, when drawn upon in times of stress 
and strife, is sure to find specific ways and means to 
surmount difficulties that may appear to be insur­
mountable.” (Emphasis added.)

Opinion and Order dated December 1, 1969



109a

Order

I t is Ordered, A djudged and  D ecreed as fo llo w s :

1. All facts found in this and previous orders, and all 
competent evidence including plans, reports and admissions 
in pleadings in the record are relied upon in support of 
this order.

2. The November 17 plan entitled “ A m e n d m en t  to P lan  
for F u r th er  D esegregation of S chools”  is disapproved.

3. The defendants are directed to desegregate faculties 
in all the schools effective not later than September 1, 1970, 
so that the ratio of black teachers to white teachers in each 
school will be approximately the same as the ratio of black 
teachers to white teachers in the entire school system.

4. A consultant will be designated by the court to pre­
pare immediately plans and recommendations to the court 
for desegregation of the schools. The legal and practical 
considerations outlined in detail in earlier parts of this 
opinion and order are for his guidance.

5. The defendants are directed to cooperate fully with 
the consultant. This cooperation will include but not be 
limited to providing space at the headquarters of the board 
of education in which he may work; paying all of his fees 
and expenses; providing stenographic assistance and the 
help of business machines, draftsmen and computers if 
requested, along with telephone and other communications 
services. He shall have full access to maps, drawings, re­
ports, statistics, computer studies, and all information 
about all phases of the school system which may be neces­
sary to prepare plans or reports. He shall be supplied with



110a

Order

any studies and plans and partial plans for desegregation 
of the schools which the defendants may have. The defend­
ants will provide this consultant with full professional, 
technical and other assistance which he may need in famil­
iarizing himself with the school system and the various 
problems to be solved in desegregating the schools. Any 
and all members of the board of education who wish to 
cooperate in the preparation of such a plan may do so. 
The cooperation of the school administrators and staff will 
be requested and will be appreciated.

6. Action on the motion of plaintiffs for an order di­
recting immediate desegregation of the entire system is 
deferred.

7. Further orders with reference to restraining con­
struction and enlargement of schools are deferred.

8. Motion has been filed for a citation of the school 
board members for contempt of court. Litigants are bound 
by court orders and may be punished for disobedience of 
such orders even though such orders may ultimately be 
reversed on appeal, Walker v. Birmingham, 388 IT. S. 307 
(1967). The evidence might very well support such cita­
tions. Nevertheless, this is a changing field of law. De­
spite the peremptory warnings of New Kent County and 
Holmes County, strident voices, including those of school 
board members, still express doubt that the law of those 
cases applies to Mecklenburg County. This district court 
claims no infallibility. Contempt proceedings against un­
compensated public servants will be avoided if possible. 
Action on the contempt citation is deferred.

9. If the members of the school board wish to develop 
plans of their own for desegregation of the schools, with-



111a

Order

out delaying or interfering with the work of the consultant, 
they may proceed to do so, and if they wish any guidance 
from the court they will find their guidance in the previous 
opinions and orders of this court and in the court decisions 
and principles set out in this opinion and order.

10. Jurisdiction is retained for further orders as may 
be appropriate.

This is the 1st day of December, 1969.

/ s /  J am es  B. M cM illan  
James B. McMillan 

United States District Judge



112a

Order dated December 2, 1969

The court appoints as a consultant under the terms out­
lined in the court’s order of December 1, 1969, Dr. John A. 
Finger, Jr., of Providence, Rhode Island.

The school board and staff are directed to cooperate with 
Dr. Finger as set out in the December 1, 1969 order.

This the 2nd day of December, 1969.

/ s /  J am es B. M cM illa n  
James B. McMillan 

United States District Judge



113a

On December 2, 1969, this court appointed Dr. John A. 
Finger, Jr., of Providence, Rhode Isand, to study the 
Charlotte-Mecklenburg school system and advise the court 
how the schools could be desegregated. The defendant 
school board, by order of December 1, 1969, had been ex­
tended a fourth opportunity to submit a plan if they wished. 
Dr. Finger went to work; the school staff worked with him; 
and they have produced some extremely useful information 
and reports, which will be referred to in this order as the 
Board plan and the Finger plan.

Hearings on the plans were conducted on February 2 
and February 5, 1970.

The Board plan, prepared by the school staff, relies 
almost entirely on geographic attendance zones, and is 
tailored to the Board’s limiting specifications. It leaves 
many schools segregated. The Finger plan incorporates 
most of those parts of the Board plan which achieve de­
segregation in particular districts by re-zoning; however, 
the Finger plan goes further and produces desegregation 
of all the schools in the system.

Taken together, the plans provide adequate supplements 
to a final desegregation order.

The court would like again to express appreciation to 
Dr. Finger for the intelligence, resourcefulness and tact 
with which he has pursued his difficult assignment, and to 
Dr. William Self, Superintendent of the schools, and to 
his able staff, for the excellent work done by them in their 
difficult role of helping prepare one plan to comply with 
what the court believes the law requires, and simultaneously 
preparing another plan to suit the majority of the School 
Board who, at last reckoning, still did not appear to accept 
the court’s order as representing the law of the land.

Order dated February 5 , 1 9 7 0



114a

The court is also grateful to the Board’s outside con­
sultant, Mr. Weil, of Systems Associates, Inc., whose two 
hundred days of work and whose computer studies formed 
the building blocks, or points of departure, for much of 
the work of the others.

Recent appellate court decisions have hammered home 
the message that sixteen years of “deliberate speed” are 
long enough to desegregate tax supported schools. On 
October 29, 1969, in Alexander v. Holmes County, 369 U.S. 
19, the Supreme Court ordered numerous Deep South 
school districts to be completely desegregated by January 
1, 1970; schools in Atlanta, Miami and parts of Chicago 
have been ordered totally desegregated; the Supreme Court 
in January ordered February 1, 1970, desegregation of
300,000 pupils in six Gulf Coast states; the Fourth Circuit
Court of Appeals in Nesbit v. Statesville, —— F.2d. ------
(December 2,1969), ordered elimination by January 1, 1970, 
of the racial characteristics of the last black schools in 
Durham, Reidsville and Statesville, North Carolina; and 
in Whittenberg v. Greenville, South Carolina, the Fourth 
Circuit Court of Appeals, in an opinion by Chief Judge 
Clement F. Haynsworth, Jr., has just last month ordered 
the desegregation by February 16, 1970, of the 58,000 stu­
dents in Judge Haynsworth’s own home town. Judge 
Robert Martin of Greenville, pursuant to that mandate, on 
February 2, 1970, ordered all the Greenville schools to be 
populated by February 16, 1970, on a basis of 80% white 
and 20% black.

In the Greenville opinion the court said:
“These decisions leave us with no discretion to con­

sider delays in pupil integration until September 1970. 
Whatever the state of progress in a particular school

Order dated February 5, 1970



115a

district and whatever the disruption which will be occa­
sioned by the immediate reassignment of teachers and 
pupils in mid-year, there remains no judicial discretion 
to postpone immediate implementation of the consti­
tutional principles as announced in Green v. County 
School Board of New Kent County, 391 U.S. 430; 
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 
(Oct. 29,1969); Carter v. West Feliciana Parish School 
B d.,------U.S. -------  (Jan. 14, 1970).”

These decisions are binding on the United States District 
Court for the Western District of North Carolina. Unless 
that were true, the Constitution would mean whatever 
might be the temporary notion of whichever one of 340-odd 
federal judges happened to hear the case. This is a matter 
of law, not anarchy; of constitutional right, not popular 
sentiment.

The order which follows is not based upon any require­
ment of “racial balance.” The School Board, after four 
opportunities and nearly ten months of time, have failed 
to submit a lawful plan (one which desegregates all the 
schools). This default on their part leaves the court in 
the position of being forced to prepare or choose a lawful 
plan. The fairest way the court knows to deal with this 
situation was stated clearly in the December 1, 1969 order, 
as follows:

“In default of any such plan from the school board, 
the court will start with the thought, originally ad­
vanced in the order of April 23, that efforts should be 
made to reach a 71-29 ratio in the various schools so 
that there will be no basis for contending that one 
school is racially different from the others, but to

Order dated February 5, 1970



116a

understand that variations from that norm may be 
unavoidable.”

T herefore , and in accordance with the specific, detailed, 
numbered guidelines of this court’s order of December 1, 
1969, I t Is Ordered :

1. That the defendants discontinue the operation of 
segregated schools.

2. That the defendants take such action as is necessary 
to desegregate all the schools—students and faculty.

3. That desegregation of faculty be accomplished, as 
previously ordered, by assigning faculty (specialized faculty 
positions excepted) so that the ratio of black and white 
faculty members of each school shall be approximately the 
same as the ratio of black and white faculty members 
throughout the system.

4. That teachers be assigned so that the competence and 
experience of teachers in formerly or recently black schools 
will not be inferior to those in the formerly or recently 
white schools in the system.

5. That no school be operated with an all-black or pre­
dominantly black student body.

6. That pupils of all grades be assigned in such a way 
that as nearly as practicable the various schools at various 
grade levels have about the same proportion of black and 
white students.

7. That transportation be offered on a uniform non- 
racial basis to all children whose attendance in any school

Order dated February 5, 1970



117a

is necessary to bring about the reduction of segregation, 
and who live farther from the school to which they are 
assigned than the Board determines to be walking distance. 
Estimates of the number of children who may have to be 
transported have run as high as 10,000 or more. Since the 
cost to the local system is about $18 or $20 a year per 
pupil, and the cost to the state in those areas where the 
state provides transportation funds is about another $18 
or $20 a year per pupil, the average cost for transportation 
is apparently less than $40 per pupil per year. The local 
school budget is about $45,000,000 a year. It would appear 
that transporting 10,000 additional children, if that is 
necessary, and if the defendants had to pay it all, would 
add less than one per cent to the local cost of operating the 
schools. The significant point, however, is that the cost is 
not a valid legal reason for continued denial of constitu­
tional rights.

8. That if geographic zones are used in making school 
assignments, the parts of a zone need not be contiguous.

9. That the defendants maintain a continuing control 
over the race of children in each school, just as was done 
for many decades before Brown v. Board of Education, 
and maintain the racial make-up of each school (including 
any new and any re-opened schools) to prevent any school 
from becoming racially identifiable.

10. That “freedom of choice” or “freedom of transfer” 
may not be allowed by the Board if the effect of any given 
transfer or group of transfers is to increase the degree of 
segregation in the school from which the transfer is re­
quested or in the school to which the transfer is desired.

Order dated February 5, 1970



118a

11. That the Board retain its statutory power and duty 
to make assignments of pupils for administrative reasons, 
with or without requests from parents. Administrative 
transfers shall not he made if the result of such transfers 
is to restore or increase the degree of segregation in either 
the transferor or the transferee school.

12. That if transfers are sought on grounds of “hard­
ship,” race will not be a valid basis upon which to demon­
strate “hardship.”

13. That the Board adopt and implement a continuing 
program, computerized or otherwise, of assigning pupils 
and teachers during the school year as well as at the start 
of each year for the conscious purpose of maintaining each 
school and each faculty in a condition of desegregation.

14. That the defendants report to the court weekly be­
tween now and May 15, 1970, reporting progress made in 
compliance with this order; and that they report thereafter 
on July 15, August 15, September 15 and November 1, 
1970, and on February 1 and May 1, 1971.

5. That the internal operation of each school, and the 
assignment and management of school employees, of course 
be conducted on a non-racial, non-discriminatory basis.

16. The duty imposed by the law and by this order is 
the desegregation of schools and the maintenance of that 
condition. The plans discussed in this order, whether pre­
pared by Board and staff or by outside consultants, such as 
computer expert, Mr. John W. Weil, or Dr. John A. Finger,

Order dated February 5, 1970



119a

Jr., are illustrations of means or partial means to that endJ 
The defendants are encouraged to use their full “know­
how” and resources to attain the results above described, 
and thus to achieve the constitutional end by any means 
at their disposal. The test is not the method or plan, but 
the results.

17. The choice or approval or partial approval of any 
proposed desegregation plan is subject to all the require­
ments and restrictions of the preceding sixteen paragraphs, 
as well as to any later requirements or restrictions set out 
in this order.

18. Subject to the above, the Board’s pupil assignment 
plan for senior high school pupils is approved, with one

1. The following are exhibits to this order:
A. The Board’s map of proposed senior high school atten­

dance zones.
B. The Board’s list of proposed senior high school populations.
C. The Board’s map of proposed junior high school atten­

dance zones.
D. The Board’s list of proposed junior high school popula­

tions.
E. Dr. Finger’s map of proposed junior high school atten­

dance zones.
F. Dr. Finger’s list of proposed junior high school popula­

tions.
G. The Board’s map of proposed elementary school atten­

dance zones.
H. The Board’s list of proposed elementary school popula­

tions.
I. Dr. Finger’s map of proposed elementary school atten­

dance zones.
J. Dr. Finger’s list of proposed elementary school popula­

tions.
K. Dr. Finger’s list of pairing and grouping of elementary 

schools and grades.

Order dated February 5, 1970



120a

exception. This exception is that black students, some 300 
in number, should be assigned from map grids 294D, 295C, 
295D, and 318A, to attend Independence High School.

19. Although the Board junior high school plan is 
inferior in design and results to Dr. Finger’s plan, it is a 
purely “home grown” product and the court would like 
to approve it, if it can be brought into compliance with law 
by desegregating Piedmont Junior High School, and by 
adding transportation as above indicated, and by increas­
ing the black attendance at several outlying schools. The 
Board may if it wishes consider (1) re-zoning; (2) two-way 
transporting of pupils between outlying schools and Pied­
mont; (3) closing Piedmont and assigning the pupils to 
Albemarle Road, Carmel, McClintock and Quail Hollow. 
Unless the court has been notified in writing by noon of 
February 6, 1970, of an affirmative decision adopting one 
of these choices by formal Board action, the junior high 
schools are directed to be desegregated according to Dr. 
Finger’s plan, as illustrated by exhibits E and F.

20. The Board’s plan for elementary schools, illustrated 
by exhibits Gr and H, cannot be approved because (1) it 
retains nine schools 83% to 100% black, serving over half 
the black elementary pupils, and (2) it leaves approxi­
mately half the 31,500 white elementary students attending 
schools that are 86% to 100% white; and (3) it promises 
to provide little or no transportation in aid of desegrega­
tion, even though the plan’s zones in some cases are ap­
parently five or six miles long. The Board plan for ele- 
mentaries openly rejects the duty to eliminate all the 
black schools.

The Finger plan uses many of the same basic attendance 
lines as the Board plan; however, it does not stop short of

Order dated February 5, 1970



121a

the constitutional requirements, and by pairing and cluster­
ing groups of schools it achieves full desegregation of the 
elementary schools. The school staff worked out the de­
tails of this plan and are familiar with it. Its attendance 
zones are illustrated on the map, exhibit I ; its elementary 
school populations are listed in exhibit J ; and the pairing 
and grouping of the outlying and inner-city schools, grade 
by grade, are shown in detail on exhibit K. Subject to the 
qualifications previously stated, the Board is directed to 
follow the Finger plan with reference to elementary schools.

21. T h e  T im e  T a b l e : Deadlines to complete various 
phases of the program required in this order are as follows:

S en ior  H igh  S chools.— Seniors may remain in their 
present schools until the end of the school year; the 
Board may make any decision they deem wise about 
allowing seniors to transfer before graduation to 
schools where their race will be in the minority. Elev­
enth and tenth graders will be transferred to their new 
schools not later than the 4th day of May, 1970.

J u n io r  H igh  S chools (Grades 7, 8, 9).—Complete 
desegregation shall be accomplished not later than the 
1st day of April, 1970.

F a c u l ty .—Complete desegregation of the various 
faculties shall be accomplished by the various times 
set out above for desegregation of the student bodies.

22. M odifications.— The intention of this order is to put 
on the Board the full duty to bring the schools into compli­
ance with the Constitution as above outlined, but to leave 
maximum discretion in the Board to choose methods that 
will accomplish the required result. However, it is directed

Order dated February 5, 1970



122a

that leave of court be obtained before making any material 
departure from any specific requirement set out herein. 
The court will undertake to rule promptly on any such 
requests for deviation from prescribed methods.

23. A ppeal.— The court claims no infallibility and does 
not seek to prevent appeal from all or any part of this 
order, and will allow the making of any record needed to 
present on appeal any contention the parties desire to 
make, and will do what this court can to expedite such 
appeal. However, in accordance with Whittenberg v. Green­
ville, supra, this order will not be stayed pending appeal, 
and immediate steps to begin compliance are directed.

24. All evidence in the cause and all findings and con­
clusions in previous orders which support or tend to sup­
port this order are relied upon in support of this order.

25. Jurisdiction of this cause is retained for further 
orders.

This the 5th day of February, 1970.

Order dated February 5, 1970

James B. McMillan
United States District Judge



Research Report 
January 31, 1970

The Charlotte-Meck)enburg Schools

DESEGREGATION PLAN for 1970-71 E x h i b i t  B

Sen io r  High Schools

School 1970-71
Capac i ty 

Base +20% B

1969-70 

w T %B B
Board Plan 

W T %B

East Mecklenburg 1 7 0 0 2040 215 • - 1925 2140 10% 360 1 7 1 6 2076 1 7%
Gar i nger 187^ 2249 492 2148 2640 18% 721 1 9 1 4 2635 27%
Harding 1202 1442 612 720 1332 45% 395 692 IO87 36%
1ndependence 1047 1256 101 1111 1212 9% 23 1241 1264 2%
Myers Park 1679 2 0 1 5 224 1767 1991 12% 426 1883 2309 18%

North Mecklenburg 1158 1390 446 1185 1631 28% 440 998 1438 31%
01 ymp i c 807 968 351 5 1 2 863 41% 201 687 888 23%
South Mecklenburg 1523 1828 90 2024 2114 5% 482 1846 2 3 2 8 21%
West Char lo tte 1593 1 9 1 2 1641 0 1641 100% 597 1045 1642 36%
West Mecklenburg 1374 1649 141 1444 1585 9% 4 9 4 998 1492 33%

Total 13,957 16,749 4,313 12,836 17.149 4,139 3,020 17,159

123a



Research Report
January 31. 1970

The Char 1otte -M eck lenburg  Schoo ls  

DESEGREGATION PLAN f o r  1970-71

E x h i b i t  D

Ju n io r  H igh  Schoo ls

School
1970-71 

Capaci ty 
Base +20% B

1969-76 

W T %B B
Board Plan  

W T %B

Albemarle  Road 948 1138 63 995 1058 5% 19 753 772 2%
A1exander 874 1049 3 2 8 761 1089 30% 303 698 1001 30%
Cochrane 1 1 9 0 1428 72 1544 1616 5% 571 1150 1 7 2 1 33%
Coulwood 704 845 101 770 871 12% 313 551 864 36%
Eastway 1093 1312 61 1356 1417 4% 375 971 1346 2 8%

Alexander Graham 996 1194 101 1 0 2 8 1129 8% 261 888 1149 23%
Hawthorne 8 5 0 910 550 472 1022 54% 276 704 980 28%
Kennedy 80 1 961 80 2 9 811 99% 325 510 835 39%
McCli ntock 923 1100 84 1288 1372 6% 25 1048 1073 2%
Northwest 1068 1 2 8 2 1032 1 1033 296 675 971 30%

PIedmont 631 757 408 55 463 89% 758 84 842 90%
Quail Hollow 1238 1486 129 1421 1550 9% 138 1144 1282 11%
Randolph 972 1170 279 7 1 0 989 28% 307 683 990 31%
Ranson 851 1021 246 548 794 31% 295 558 853 35%
Sed ge f ie ld 777 930 167 809 976 17% 23k 612 846 28%

Smi th 1093 1 3 1 2 51 1436 1487 4% 330 957 1287 2 6 %
Spaugh 826 1091 262 839 1101 24% 346 752 1098 32%
W i l l i  ams 801 967 1081 0 1081 100% 336 7 2 2 1058 32%
Wi 1 son 1044 1253 60 1145 1205 5% 346 795 1141 30%

Carmel 558 670 2 555 557 0%
J . H . Gunn (Wi1grov< ) 558 670 49 47 0 519 9%

Total 18,796 22,546 5,877 15,187 21,064 5,905 15,280 21,185

124a



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A lb e m a r le  Road 948 1133 63 995 1058 5,'i 292 696 988 30%
Aale^tf nder ?! 0 874 2104 S 328 m i ??4 0 8 9 194)4 335 7 7 * 9 0 211025 sȤ%
a ocb ff*n e T* '31190 21423 1872 5144 7 )4 6 1 6 774*% 1 33® 3?*S 4 771354 ''■&%
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HAw^horne ? 12 850 12910 5SD 472 164022 296 1*77 831967 a^©%
Karwsedy 2 *0 801 80961 802 8809 e a e a n y*>% 184 P?%06 ? ? 2 79 o 12*3%
('lcC ljn to ck 2 ** 923 25100 2S4 12®8 231372 386 23^25 7 *$311 m * .

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--'•■S'-! 11 8 !? 33? 98 ?33 131 !3* 371 63! 303f

Piedm ont 631 757 403 55 463 89% 24 3 5 38 781 32%
,';QiU!a4it\.Kollow !» JP1238 3W*6 t&9 14121 821550 38»% 339 31*650 ?5$3S9 m %
^■Randolph 1 D5 972 30?7O 278 S8E0 i?S 989 « 8 % 402 io ®  3 2 13J2 34 iS %
il£.pansoo.j< e 5 !  '851 CIB21 2SJ6 543 ?0i 794 34% 264 75583 21?847 m %

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Sm ith 1093 . 1 3 1 2  .. 51 I486 1 4 8 7 . . 4 %  . *..--350— -S2.Q .  . 1.279 . ...2 3%a
Spaugh 826 1091 262 339 1101 24% 324 807 1131 29%
W illia m s 5 ***801 + m i 1081 *  0 11081 ¥i o o % | % 08 *727 •^035 4 o %
WiKOflOj 102#M. :*125 3 60 1145 1205 5% 230 8° ? ‘7 6  bi Bu 800 29% j

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Carm el 5 58 670 £ !t l « U £ S t 7  3CMOOIJ 142 444 566 24%
J .  H. Gunn 558 670 49 475 524 9%

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g s b o t j IP* C p S L jO U e - rjSCkl^uBPi-0 j e p o < J* E X P T P T P  H ’ N S *  j



Research Report
January 31, 1970

The C ha r lo tte -M eck lenburg  S choo ls

DESEGREGATION PLAN fo r  1970-71

E xh ib it H, page X

E lem entary Sch oo ls

School
1970-71 

C ap a c ity  
Base +12% B

1 9 6 9 -7 0 *

W T , %B B
Board
W

Plan
T %B

Albem arle  Rd. **32 484 4 510 514 1% 4 469 473 1%
A1ienbrook 540 605 61 452 513 12% 59 496 555 11% '
A sh le y  Park 621 696 27 574 601 4% 155 421 576 27%
Bain 702 786 33 735 768 4% 25 706 731 3%
B a rr in g e r 486 544 843 16 859 98% 203 320 523 39%

Berryh i 11 836 936 98 639 737 13% 247 574 821 30%
Beve rly  Woods 540 605 68 684 752 9% 8 648 656 1%S i U  in s g v i1 le 594 665 596 0 596 100% 113 325 438 26%
Briarwood 540 605 6 680 686 1% 2 663 665 0%
Bruns Ave. 675 756 759 10 769 99% 624 73 697 90%

Chant i l l y 432 484 0 472 472 0% 142 303 445 32%
C lea r Creek 324 363 48 229 277 17% 43 266 309 14%
Col 1 inswood 621 696 111 443 554 20% 224 448 672 33%C o rn e liu s 459 514 181 235 416 44% 182 265 447 41%
Cotswold 540 605 23 537 560 4% 128 449 577 24%

Davidson 324 363 104 186 290 36% 102 174 276 32%
M arie  D av is 756 847 662 0 662 100% 666 82 748 887
Der i ta 783 877 150 678 828 18% 152 595 747 20%Devonsh i re 648 726 0 903 903 0% 0 925 925 0%
D ilw orth 648 726 90 317 407 22% 241 376 617 39%

Double Oaks 675 756 836 0 836 100% 825 3 828 100%
D ru id  H i l l s 486 544 472 3 475 99% 465 20 485 96%Eastover 648 726 42 559 601 7% 157 478 635 25%E Iiz a b e th 405 454 314 125 439 72% 112 294 406 28%Enderly  Park 513 575 3 371 374 1% 119 238 357 33%

*  NDt in c lu d in g  Sp e c ia l Educat ion in s e l f -co n ta in e d  c la s se !



The C h a r lo t te -M e ck lenburg Schoo ls

DESEGREGATION PLAN fo r  1970-71

E x h i b i t  H, p a g e  2 .

Elem entary Sch oo ls  ’

School
1970-71 

C apac ity  
Base +12% B

1969-70 

W T %B B
Boa’rd
W

PI an
T %B

F i r s t  Ward -7.02 786 805 0 805 100% 770 7 777 99%
H icko ry  Grove **59 -5.1*+ 70 533 603 12% 7** 556 630 12%

H i dden V a lle y 6**8 726 0 1100 1100 0% 1 1077 1078 0%

H i gh 1 and 297 . 333 69 305 37** 18% 76 237 313 21*%'

Hoski ns 297 333 * 13 212 225 6% 121* 219 3*+3 36%

H u n te rs v i1le 675 756 1**5 531 676 21% 130 55** 681* 19%
Huntingtowne Farms 59** 665 7 603 610 1% 3 611* 617 0%

1d le w i1d 567 635 *♦7 581 628 7% 59 5*+9 608 10%

Irw in  Ave. 292 0 292 100% *

Amay James 378 *♦ 23 1*62 3 1*65 99% 90 169 259 35%

Lakevi ew 378 **23 3**6 89 *+35 80% 119 285 1*01* 25%
Lansdowne 756 8*+7 75 802 877 9% 79 719 798 10%
L i ncoln H e igh ts 61*8 726 711 0 711 100% 903 6 909 99%
Long Creek 702 786 267 1*68 735 36% 259 523 782 33%
Matthews 9**5 1058 86 802 888 10% 81 837 918 9%

Merry Oaks 1+86 S'*** 0 1*1*2 1+1*2 0% 0 557 557 0%
M i dwood *+59 51** 9 **37 1*1*6 2% 116 1*01 517 23%
M cntc la i re 675 756 0 718 718 0% 1 781 782 0%

Myers Park **32 1*8** 22 W * 1*66 5% 150 31** i*6i* 32%
Nations Ford 621 696 **3 669 712 6% 177 51*8 725 2*+%

Newe11 59** 665 7** 1*38 512 li*% 61* 1*36 500 13%
Oakdale 5*+0 605 69 517 586 12% 202 1*60 662 31%
Oakhurst 59** 665 5 616 621 1% 92 50i* 596 15%
Oaklawn 59** 665 581* 0 581* 100% 597 3 600 99%
01de Providence 5**0 605 80 512 592 11*% 83 1*61 5i**+ 15%

♦ d is t r ib u t e d  to su rrou n d in g  sc h c o ls



DESEGREGATION PLAN fo r  1970-71

E lem entary S ch o o l*

School
1970-71 

C ap a c ity  
Bate +12% B

1969-70 

W T %B B
Board
W

Plan
T %B

Park Road 540 605 44 548 592 7% 41 571 612 7%
Paw Creek 594 665 27 609 636 4% 83 602 685 12%
Paw Creek Annex 270 302 30 271 301 10%
P in e v i1le 486 541* 136 356 492 28% 123 379 502 25%
Pi newood 61*8 726 0 674 674 0% 0 900 900 0%

Plaza Road 459 514 80 340 420 19% 181 350 531 34%
Rama Road 61*8 726 1 815 816 0% 3 744 747 0%
Se d g e f ie ld 51*0 605 3 548 551 1% 223 364 587 38%
Selwyn 1*86 544 31 617 648 5% 32 459 491 7%
Shamrock Gardens 1*86 544 0 515 515 0% 84 496 580 15%

Sharon 1*59 514 72 361 433 17% 91 421 512 18%
Starmount 61*8 726 25 712 737 3% 67 833 900 7%
S t a t e s v i l le  Road 61*8 726 333 522 855 39% 160 553 713 23%
S te e le  Creek 378 423 5 509 514 1% 195 475 670 29%
Thomasboro 729 816 0 690 690 0% 135 777 912 15%

Tryon H i l l s 1*86 544 309 164 473 65% 200 342 542 37%
Tuckaseegee 51*0 605 58 578 636 9% 57 510 567 10%
U n iv e r s it y  Park 61*8 726 825 1 826 100% 735 132 867 85%
V i l l a  H e igh ts 810 907 902 83 985 92% 877 170 1047 83%
W e ste rly  H i l l s 1*05 454 46 539 585 8% 144 332 476 30%

Wilmore 378 423 222 210 432 51% 153 250 403 38%
W indsor Park 61*8 726 1 748 749 0% 1 782 783 0%
W m te rf i e l d 61*8 726 48 688 736 7% 52 653 705 7%

Total +0,391 45,239 13,010 31,278 44,288 12,885 31,523 44,408

128a



E x h ib i t  J , p a ge  1 .
D E S E G R E G A T IO N  P L A N  f o r  C h a r l o t t e - M e c k l e n b u r g  S c h o o l s

S c h o o l

Albemarle Rd. 
Allenbrook 
Ashley Park 
Bain
Barringer

Berry hill 
Beverly Woods 
Billingsville 
Briarwood 
Bruns Avenue

Chantilly 
Clear Creek 
Collinswood 
Cornelius 
Cotswold

Davidson 
Marie Davis 
Derita 
Devonshire 
Dilworth

Double Oaks 
Druid Hills 
Eastover 
Elizabeth 
Enderly Park

E l e m e n t a r y  S c h o o l s

197 0-7 1
C a p a c it y

B ase + 2 0;4 B

1 9 6 9 -7 0  

W T

432 4 34 4 510 514
54 0 605 61 452 513
621 696 27 574 601
702 786 33 735 763
4S6 544 843 16 859

836 936 93 639 737
540 605 63 684 752
594 665 596 0 586
540 605 6 680 686
675 755 759 10 769

432 484 0 472 472
324 363 43 229 277
621 656 111 443 554
455 514 181 235 416

. 540 605 23 537 560

324 363 104 136 290
756 847 662 0 662
783 877 150 673 S28
643 726 0 903 903
643 726 90 317 407

675 756 836 0 836
486 544 472 3 475
648 726 42 559 601
405 454 314 125 439
513 575 3 371 374

C ou rt C o n su lta n t  
P lan

AS B w T %3

1% 162 3 38 500 32%
12% 135 341 476 2 35c

4% 175 426 601 29%
4% 25 706 731 3%

98% 203 320 523 39%

13% 247 574 821 30%
9/4 186 446 632 29%

10054 113 325 4 38 26%
174 256 479 735 35%

9954 252 540 792 32%

054 142 333 475 30%
17% 43 266 309 14%
20% 224 406 630 36%
44% 182 265 44 7 41%

4% 128 404 532 24%.

3654 102 174 276 32%
100% 193 532 725 27%

18% 167 625 792 21%
054 333 624 957 35%

22% 241 376 617 39%

100% 234 496 730 32%
99% 158 303 461 34%

7% 157 445 602 26%,
72% 132 304 436 30%

1% 150 270 420 36%

129a



DESEGREGATION P L A N  f o r  C h a r lo t t e -M e c k le n b u r g  S c h o o ls  

E le m e n ta ry  S c h o o ls

S c h o o l
1 9 7 0 -7 1  

C a p a c it y  
B ase  +2054 B

1969

W

-7 0

T %B

C ou rt C o n s u lta n t  
P la n

B W T %B

F i r s t  Ward 702 736 805 0 B<?5 100,4 265 6S6 951 25%
H ic k o r y  G rove 459 514 70 533 603 12* 272 439 711 38%
H idden V a l le y 643 726 0 1100 1100 0% 310 679 959 31%
H igh lan d 297 333 69 305 374 18% 76 237 313 74%
H osk in s 297 333 13 212 225 6% 139 244 333 26%

H u n t e r s v i l l e 675 756 145 531 676 21% 130 554 634 19%
H u n tin gtow n e Farms 594 665 7 503 610 I/O 205 414 613 33%
I d le w i l d 567 635 47 531 623 7% 190 410 6 30 32%
Irw in  Avenue 292 0 292 100% *
Arnay James 373 423 462 3 465 99% 105 194 299 35%.

L ak eview 378 423 346 39 435 80% 139 230 419 33%
Lansdowne 756 347 75 302 877 9% 207 496 703 293,
L in c o ln  H e ig h ts 646 726 711 0 711 100% 241 456 697 35%
Long C reek 702 785 267 468 735 36"% 239 523 782 33%
M atthews 945 1058 36 302 880 10% 31 837 913 5%

M erry Oaks 486 544 0 442 442 0% 106 236 342 31%
Midwood 453 514 9 437 446 2% 116 446 562 21%
M o n t c la ir e 675 756 0 718 718 0% 230 504 704 36%
M yers Park 432 484 22 444 466 5% 150 445 595 25%
N a tio n s  F ord 621 696 43 669 712 6% 177 532 759 23%

N ew ell 594 665 74 438 512 14% 74 546 620 12%
O akdale 540 605 69 517 536 12% 250 460 710 35%
O akhurst 594 665 5 616 621 1% 197 534 731 27%
Oaklawn 594 665 584 0 584 100% 226 594 820 28?,
O ld e  P r o v id e n c e 540 605 30 512 592 14% 145 351 496 295

*  A s s i g n e d  f r o m  a r e a  t o  i n c r e a s e  d e s e g r e g a t  
O a k h u r s t  105B 
S h a m rock  G a r d e n s  90B 
T h o m a sb o ro  95B



D E S E G R E G A T IO N  P L A N  ( C o n t ’ d )

E x h i b i t  J ,  p a g e  3 .

E l e m e n t a r y  6 c h o o l a

S c h o o l
1 9 7 0 7 1  

C a p a c i t y  
B a s e  + 2 O N B

1 9 6 9 -
W

7 0
T N B B W T % B

P a r k  R o a d 5 4 0 6 0 5 4 4 5 4 8 5 9 2 7 % 1 4 8 3 5 9 5 0 7 2 9 %
P a w  C r e e k 5 9 4 6 6 5 2 7 6 0 9 6 3 6 4 % 1 6 0 3 9 5 5 5 5 2 9 %
P a w  C r e e k  A n n e x 2 7 0 3 0 2 3 0 2 7 1 3 0 1 1 0 N 8 3 2 0 9 2 9 2 2 8 %
P i n e v i l l e 4 8 6 5 4 4 1 3 6 3 5 6 4 9 2 2 8 % 1 2 3  ' 3 7 9 5 0 2 2 5% .
P i n e w o o d 6 4 8 7 2 6 0 6 7 4 6 7 4 0 % 2 8 3 6 9 7 9 8 0 2 9 7 ,

P l a z a  R o a d 4 5 9 5 1 4 8 0 3 4 0 4 2 0 1 9 % 1 8 1 3 5 0 5 3 1 3 4 %
R a m a  R o a d 6 4 6 7 2 6 1 8 1 5 8 1 6 0 % 2 7 3 4 9 3 7 6 6 3 6 %
S e d g e f i e l d 5 4 0 6 0 5 3 5 4 8 5 5 1 1 % 2 2 3 3 6 4 5 8 7 3 8 %
S e l w y n 4 8 6 5 4 4 3 1 6 1 7 6 4 8 5 % 1 5 0 3 0 9 4 5 9 3 3 %
S h a m r o c k  G a r d e n a 4 6 6 5 4 4 0 5 1 5 5 1 5 0 % 1 7 4 5 1 1 6 8 5 2 5 %

S h a r o n 4 5 9 5 1 4 7 2 3 6 1 4 3 3 1 7 % 1 2 3 2 4 5 3 6 8 3 3 % ,
S t a r m o u n t 6 4 8 7 2 6 2 5 7 1 2 7 3 7 3 % 2 1 7 4 4 1 6 5 8 33% =
S t a t e s v i l l e  R o a d 6 4 8 7 2 6 3 3 3 5 2 2 8 5 5 3 9 % 1 6 0 5 5 3 7 1 3 2 3 %
S t e e l e  C r e e k 3 7 8 4 2 3 5 5 0 9 5 1 4 1 % 1 9 5 4 7 5 6 7 0 2 9 %
T h o m a s b o r o 7 2 9 8 1 6 0 6 9 0 6 9 0 0 % 2 3 0 7 7 0 1 0 0 0 2 3 % .

T r y o n  H i l l s 4 8 6 5 4 4 3 0 9 1 6 4 4 7 3 6 5 % 1 0 7 2 6 2 3 6 9 2 9 % .
T u c k a s e e g e e 5 4 0 6 0 5 5 8 5 7 8 6 3 6 9 % 1 1 9 3 0 0 4 1 9 2 8 % ,
U n i v e r s i t y  P a r k 6 4 8 7 2 6 8 2 5 1 8 2 6 1 0 0 % 2 6 0 4 6 1 7 2 1 3 6 % ,
V i l l a  H e i g h t s 8 1 0 9 0 7 9 0 2 8 3 9 8 5 9 2 % 2 6 5 6 6 8 9 3 3 2 8 % ,
W e s t e r l y  H i l l s 4 0 5 4 5 4 4 6 5 3 9 5 8 5 8 % 1 4 4 3 3 2 4 7 6 3 0 %

W i l m o r e 3 7 8 4 2 3 2 2 2 2 1 0 4 3 2 5 1 % 1 5 3 2 5 0 4 0 3 3 8 %
W indsor P a r k 6 4 8 7 2 6 1 7 4 8 7 4 9 0 % 2 7 2 5 6 1 8 3 3 3 3 %
W i n t e r f i e l d 6 4 8 7 2 6 4 8 6 8 8 7 3 6 7 % 2 6 1 5 3 7 7 9 8 3 3 % ,

T o t a l 4 0 , 3 9 1 1 3 , 0 1 0 4 4 , 2 8 8 1 2 , 9 6 4 4 4 , 3 7 0
4 5 , 2 3 9 3 1 , 2 7 8 3 1 , 3 8 6

131a



132aBffi!

#£ ■'& ?£ ''y r\  &  * i  '4  ^  •'̂?n »<- »*s m - * r*> ss cv “?•'iELEUHEWTARY $CHO©t»TO

Exhibit: K. page 1.
a a s u s '

BE PA R ED  ^

©*1

Present School
$3<fr)Q̂un%, /Xf t
as m o «  «*» so «-»4
- + » ♦ — i

1 - 4
o  ©  m (S3 if.} B fu  ft} --i {yy~*O h> rw *v co m & ri

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o n  w  f« B
as o  ru o  l

in r-- (M ',

M b e m a rle  Road 
/ft lenkxrook

^8e/erJ.y Vfood^, ®  *, 0  ,
*  B r i a rttotorfu n» &  &* O  <***_ fVJV> Y> f*J CM m a 

Bruns Avenue

M a rie  D a v is  
D evonsb i re ** a * O  t> -
■ # • * « » « *  s s  s r ; :
O ru id  H i l t s

•"*. o  h *  ai 5h o  *0 t 
H ic k o ry  G rove ^  g  c 
Hi<Jden Val le y  
Huntingtow ne Fanes
fij i i V| *‘i fii fu <S5 0/ na I ev^i \g m 0J 35 ^ ^

o ni in t— m
2 338
0 3^1
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* K  O  0> "lii ru fn rr ■£» i

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5T*: j~« H> ^

310 2

“ SH i* - s ? # *  % k ' H ^ r 4 ~ " T t Ho »-« as m -s o «* **•» O A» O '-'• 
^ 4'  5^ 3 ?9

0 677
0 k \ kO 1? Ai -a m n m OJ t-~. Gifa ft? h m u i-- v aj ’>-? IrV

193 |
cn rn rr o  to '

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I 58

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: 26
2 76

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I

208

W  f ' r  S '  l"»  M7 VW 0 *  • * 'v -  SO  n  w- 1 U  K T
liansdowrte '  ^  #x> os ^  ^  a/ ru a? -? 2 <v ry £3l|f6

l/ inco ln  H e ig h ts  
® M e rr^ (te k s

w  V) ru  co a ? 
V O fr 't ft*  O

»-£> ®  f*>

rsMontcilai ce 
'J,,0akl awn 
^ O lde  Providence

C  a? h  kj

P ir k  ^ a i l  
fjaw Creek 
Paw Creek Annex

«!> P »newcx^ ^  ^ - 301(319■̂;Rama 'Roa<t' ftOwOPW'J ama  ̂ --» cv rj
’̂ S e lw yn

^harog ^  J£) r« o  ®  o  O'Starmounth V®
■ ftyoiFrfV fT s 
Tjtickaseegee

ghts ^56
A) r*3 »«n ffi •P1 O *0 3̂ Y> >■ > 0 o>fn 03 " i QJ fti O KS Q* _ru Of fv (%i **% 0 e'U

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16
27 ...

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h  S') '/> r> H  -? T O  
oc? v  t  -1 ru -'ruftAqk

0
*C Oi •» <» /o. 5 Q. £/ o c2/§
j o - " i ^ t r A i l 9 c o c » ^  w i  
-i m oi iv % ,  Q &  &  ru cy ̂

0
351
^ o
36b
395
209

T v

m

286

?l 8 
69 300

U n iv e r s i t y  Perk

W ind so r  Park  
W ln t e r f l a i d

*■
C  H
*-> S»

>- wTotat
Si H ' i l l l  
M. M 0  H

«  »  o
H  O- 3

550
S tr 6 8 3 ,

*» ft 0 a
» »4 0 n

» 0 ;j*
i“* l* #0 M
h* ^ (» ii *S
K--t! K  0 7--S Q jj »~s e

0
116
515
696

260
266

I
0

0
68

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199

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S'! »  U r;-

o
► s

k 0 >j 
iv le cl

i , 8 7 6  W 3 ( S S ^ A i

U  h- M M

Total 
Pup i I s

516 
697 
697  

■ 703 
772

709
900
819
671
795

60 7
0 , V 302 979
0 195 609

-n't) 16J, i  573
0-' m Qu ff »

i'j 291 790

239 ■ 0 ?  695
tr O' 

ru '0 -0.-t 0  -e
217

j 355
Qj fr, y.i rO Sj • ■ 721

193 , <K 
16^

i 598
1 500

O  O/ O  -1 e* 74
r*>
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11 216 636
3 53 292

<41 V sr» n» <Q 1 - 366 1063
{-•*> SF 
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r rs

0 * fr 188 672
03 CU O  t* ^ 117 362
* r  m •g A* ■n * 2?8 £36<*» t* w  ■‘“f t >■« » ^  56 673

19 171 539

810 
1 109 
769 
693

6,998  22,378

•1 c  'T',,'’1



133a

E x h ib it  K.
The C h n r lo tte -M e ck le n b u rg  S c h o o ls

ELEMENTARY SCHOOLS PAIRED

Grade 1-4 Grade 5-6

S ch o o ls S c h o o ls
B w T % B w T %Huntingtowne Farms 

Sharon Bruns Avenue 252 540 792 31Starmount
545 1100 164 5 33

Park Road 
Pinewood

431 1056 1437 29

M arie D avis 193 532 725 27

Briarw ood
D evon sh ire

589 1103 1692 35

D ouble  Oaks 234 496 730 32

Hidden V a l le y
310 679 989 31

D ruid  H i l l s  158 303 461 34

B ev erly  Woods
Lansdowne
Olde P ro v id e n ce

538 1293 1831 29

F ir s t  Ward 265 686 951 28

A lbem arle  Road 
Id le w ild  
Merry Oaks

458 984 1442 32

L in c o ln  H e ig h ts  241 456 697 35

A lle n b ro o k  
Paw Creek 
Paw Creek Annex 
T uckaseegee

497 1245 1742 29

Oaklawn 226 594 820 28

H ick ory  G rove
272 439 711 38

Tryon H i l l s  107 262 369 29

M o n tc la ire  
Rama Road

553 9 9 7 1 5 5 0 3 6
U n iv e r s ity  Park 260 461 721 36

Selwyn
W indsor Park 
W in te r f ie ld

683 1 4 0 7 2 0 9 0 3 3

V i l l a  H eig h ts  265 668 933 28

T o t a l  4,,876 15 , 1 7 9 2,201 7,, 19910L 303 4 ,990



134a

Paragraph 7 of the February 5, 1970, order read in part 
as follows:

“7. That transportation be offered on a uniform 
non-racial basis to all children whose attendance in any 
school is necessary to bring about the reduction of seg­
regation, and who live farther from the school to 
which they are assigned than the Board determines to 
be walking distance. Estimates of the number of chil­
dren who may have to be transported have run as high 
as 10,000 or more.”

Since February 5, estimates have been made by defen­
dants that paragraph 7 would require transporting more 
than 23,000 pupils rather than 10,000 to 14,000, as estimated 
at the hearing. Upon reviewing the evidence introduced 
since that hearing, it appears that these higher estimates 
may be based on construing the above language of para­
graph 7 so as to require an offer of transportation to all 
children who live more than 11/2 miles from their school, 
including city children who are not now entitled to tran­
sportation. These, according to the testimony, may number 
as many as 13,000.

The court regrets any lack of clarity in the order which 
may have given rise to this interpretation. Paragraph 7 
was never intended to require transportation beyond that 
now provided by law for city children who are not re­
assigned, nor for those whose reassignments are not re­
quired by the desegregation program.

Accordingly, paragraph 7 of the February 5, 1970 order 
is amended by deleting the words “attendance in any school” 
and inserting the words “reassignment to any school,” in 
the first sentence.

This the 3rd day of March, 1970.

/ s /  J am es B. M cM illan  
James B. McMillan 

United States District Judge

A m en dm ent, Correction or Clarification o f Order
o f February 5 ,  1 9 7 0  dated M arch 3 ,  1 9 7 0



135a

Order.

An application for a stay pending appeal of the order 
of the District Court dated February 5, 1970 made to 
Judge Craven was by him referred to the entire Court pur­
suant to Rule 8 of the Federal Rules of Appellate Proce­
dure.

Upon consideration by the full Court, it appears that dis­
position of this appeal will depend in part upon a resolu­
tion of factual questions as yet undetermined in the District 
Court. Specifically, the parties are in wide disagreement as 
to the impact of the order upon the School Board’s trans­
portation system, the number of pupils for whom transpor­
tation will be required under the order, the number of 
school buses needed to provided such transportation, their 
availability, and the cost of their acquisition and operation. 
The resolution of such factual issues is necessary to an 
orderly consideration of the issues on appeal insofar as 
they are directed to the order’s requirement that transpor­
tation be provided for pupils reassigned under the order.

To facilitate the hearing and the disposition of this ap­
peal, the District Court is requested, after such evidentiary 
hearings as may he necessary, to make supplemental find­
ings of fact respecting the general issue of busing and the 
effect of its order with respect to the number of pupils 
transported, the number of buses required, their avail­
ability, and the additional capital and operating costs of 
transportation.

The District Court is requested, if possible, to file a sup- 
lemental order or memorandum, including such findings of 
fact, by March 20, 1970.

Court o f  Appeals O rder Granting Stay Order o f
M arch 5 ,  1 9 7 0



135a-l

This appeal is accelerated. The hearing of the appeal 
will he scheduled in the Court of Appeals in Biehmond, 
Virginia, on April 9, 1970 and the attorneys for all parties 
are directed to file their briefs in the office of the Clerk of 
the Court of Appeals for the Fourth Circuit not later than 
Tuesday, April 7, 1970.

Since it appears that the appeal cannot be heard and de­
termined prior to April 1, 1970, the date for implementa­
tion of the first phase of the order of the District Court, 
and since the Court of Appeals is presently unable to ap­
praise, in the absence of the requested additional findings 
of fact, the impact of the busing requirements,

I t  I s Now O rdebed that the order of the District Court 
dated February 5, 1970 be, and it hereby is, stayed insofar 
as it requires the reassignment of pupils for whom trans­
portation would be required under the order but who are 
now not transported or who are now being transported at 
substantially less distance and at substantially less ex­
pense, such reassignments being those arising out of the 
pairing and clustering of schools with resulting cross­
busing.

To the extent that the stay granted by this order requires 
other modifications in the District Court’s order, such 
modifications as may appear appropriate to the District 
Court to achieve a cohesive and efficient system of public 
education are authorized.

Except with respect to the busing requirements of the 
order which are hereby stayed and the resulting necessary 
modifications hereby authorized, the application for a stay 
is denied, and implementation of the order of the District 
Court is directed at the times and in the manner specified

Court of Appeals Order Grcmting Stay Order of
March 5, 1970



135a-2

therein, subject to the further orders of this Court and the 
ultimate disposition of the appeal. This is in conformity 
with the general direction of the Supreme Court that orders 
of the District Court shall be implemented pending the hear­
ing and determination of appeals from such orders. Alex­
ander v. Holmes County Board of Education, 396 U.S. 19;
Carter v. West Feliciana Parish School Board,---- U.S.-----
(January 14, 1970).

By direction of the Court.

/ s /  Cl e m e n t  L. H ay n sw o rth , J r. 
Chief Judge, Fourth Circuit

Court of Appeals Order Granting Stay Order of
March 5, 1970



136a

Supplementary Findings of Fact 
dated March 21, 1970

Pursuant to the March 5, 1970 order of the Fourth 
Circuit Court of Appeals, the court makes the following 
supplemental findings of fact:

1. Paragraph seven of this court’s order of February 5, 
1970, as amended, reads:

“7. That transportation he offered on a uniform 
non-racial basis to all children whose reassignment 
to any school is necessary to bring about the reduc­
tion of segregation, and who live farther from the 
school to which they are assigned than the Board 
determines to be walking distance. Estimates of the 
number of children who may have to be transported 
have run as high as 10,000 or more. Since the cost 
to the local system is about $18 or 20 a year per pupil, 
and the cost to the state in those areas where the 
state provides transportation funds is about another 
$18 or $20 a year per pupil, the average cost for 
transportation is apparently less than $40 per pupil 
per year. The local school budget is about $45,000,000 
a year. It would appear that transporting 10,000 addi­
tional children, if that is necessary, and if the defen­
dants had to pay it all, would add less than one per 
cent to the local cost of operating the schools. The 
significant point, however, is that cost is not a valid 
legal reason for continued denial of constitutional 
rights.”

2. A bird’s-eye picture of the indispensable position of 
the school bus in public education in North Carolina, and 
especially in the school life of grades one through six (ele­
mentary students) is contained in a summary by the de-



137a

fendant Dr. Craig Phillips entitled “ R iding  th e  S chool 
B uses”  (Plaintiffs’ Exhibit 15), published January 1, 1970, 
which reads as follows:

“The average school bus transported 66 students each 
day during the 1968-69 school year; made 1.57 trips 
per day, 12.0 miles in length (one w ay); transported 
48.5 students per bus trip, including students who were 
transported from elementary to high schools.

“During the 1968-69 school year:
610,760 pupils were transported to public schools by 
the State
54.9 percent of the total public school average daily 
attendance was transported
70.9 percent were elementary students

29.1 percent were high school students
3.5 students were loaded (average) each mile of bus 
travel

The total cost of school transportation was $14,293,- 
272.80, including replacement of buses: The average 
cost, including the replacement of buses, was $1,541.05 
per bus for the school year—181 days; $8.51 per bus 
per day; $23.40 per student for the school year; $.1292 
per student per day; and $.2243 per bus mile of opera­
tion.” (Emphasis added.)

In Mecklenburg County, the average daily number of 
pupils currently transported on state school busses is ap­
proximately 23,600—plus another 5,000 whose fares are 
paid on the Charlotte City Coach Lines.

Supplemental Findings of Fact dated March 21, 1970



138a

3. Separate bus systems for black students and white 
students were operated by the defendant Mecklenburg 
County Board of Education for many years up until 
1961. Separate black and white bus systems were operated 
by the combined Charlotte-Mecklenburg Board from 1961 
until 1966 (Defendants’ answers to Plaintiffs’ requests for 
admissions, Nos. 1 and 8, filed March 13, 1970).

4. Pertinent figures on the local school transportation

Supplemental Findings of Fact dated March 21, 1970

system include these:

Number of busses .....................................  280

Pupils transported on school busses daily 23,600
Pupils whose fares are paid on Charlotte
City Coach Lines, Inc.................  5,000
Number of trips per bus daily ................  1.8

Average daily bus travel ........................ 40.8 miles
Average number of pupils carried daily,
per bus ........................................................  83.2

Annual per pupil transportation cost .... $19—$20
Additional cost (1968-69) per pupil to
state .............................................................  $19.92
Total annual cost per pupil transported $39.92
Daily transportation cost per pupil trans­
ported .......................................................... $0.22

5. Information about North Carolina:

Population ..................................................  4,974,000
1969-71 total state budget ........................ $3,590,902,142



139a

Supplemental Findings of Fact dated March 21, 1970

1969-71 total budgeted state funds for
public schools ............................................  $1,163,310,993

1968- 69 amount spent by state on trans­
portation (including replacement busses) $14,293,272.80

1969- 71 appropriation for purchase of
school busses ..............................................  $6,870,142

Average number of pupils transported
daily, 1968-69 ..............................................  610,760
Average number of pupils transported
daily per bus—statewide .......................... 66

6. The 1969-70 budget of the Charlotte-Meeklenburg 
school system is $57,711,344, of which nearly $51,000,000 
represents operational expense and between $6,000,000 and 
$7,000,000 represents capital outlay and debt service. 
These funds come from federal, state and county sources, 
as follows:

F ederal S tate  C o u n ty  T otal

$2,450,000 $29,937,044 $25,324,300 $57,711,344

The construction of school buildings is not included in these 
budget figures (see Plaintiffs’ Exhibit 6).

7. State expenditures in the past ten years have usually 
not equalled appropriations. There has been a sizeable 
operating surplus in the state budget for every biennium 
since 1959-60 (State Budget, page 86).

8. The state superintendent of public instruction in his 
biennial report (Plaintiffs’ Exhibit 12) for the years 1966- 
68 recommended that “city transportation should be pro-



140a

vided on the same basis as transportation for rural children 
as a matter of equity.”

9. The 1969 report of the Governor’s Study Commission 
on the Public School System of North Carolina (Plaintiffs’ 
Exhibit 13) recommended that transportation be provided 
for all school children, city as well as rural, on an equal 
basis. Signatory to that report was one of the present de­
fendants, the state superintendent of public instruction.

10. The basic support for the public schools of the state 
comes from the State Legislature.

11. Some 5,000 children travel to and from school in 
Mecklenburg County each day in busses provided by con­
tract carriers such as Charlotte City Coach Lines, Inc. 
(Morgan’s deposition of February 25, 1970, page 36).

12. Upon the basis of data furnished by the school board 
and on the basis of statistics from the National Safety 
Council, it is found as a fact that travel by school bus is 
safer than walking or than riding in private vehicles.

13. Traffic is of course heavy all over the 540 square 
miles of the county. Motor vehicle registration for 1969 
was 191,165 motor vehicles (161,678 automobiles and 29,487 
trucks).

14. Many children eligible for transportation do not ac­
cept that transportation. Estimates have been made that 
this number of those who do not accept transportation is in 
the neighborhood of 50% of those who are eligible.

Supplemental Findings of Fact dated March 21, 1970



141a

15. Approximately 5,000 children in the system attend 
school outside the school zone in which they reside. Al­
though requested of the defendants by the court on March 
7, 1970, information as to where these children go to school 
has not been forthcoming and the defendants have indicated 
that it is impossible to produce it.

16. As the state transportation regulations* are under­
stood by the court, the state will bear its share (about half) 
of transportation costs for children who live more than 
1% miles from their school, as follows:

(a) All rural children, wherever they attend school;
(b) All perimeter children (those living in territory 

annexed by the city before 1957), wherever they 
attend school; and

(c) All inner city children assigned to schools in either 
the perimeter or the rural areas of the system.

17. The defendants submitted information on the num­
ber of children who live within 1% miles of the schools 
which are to be desegregated by zoning. This information 
shows that East Mecklenburg, Independence, North Meck­
lenburg, Olympic, South Mecklenburg and West Mecklen­
burg high schools, and Quail Hollow and Alexander junior 
high schools, with total student populations of 12,184, have 
in the aggregate only 96 students who live within 1% miles 
from the schools. Some 12,088 then are eligible for trans­
portation. These same schools among them provide bus 
transportation for 5,349 students. This information illus­
trates the importance of the bus as one of the essential

Supplemental Findings of Fact dated March 21, 1970

* General Statutes of North Carolina, Chapter 115, §180-192.



142a

elements in the whole plan of operation of the schools. It 
also shows the wide gap between those entitled to transpor­
tation and those who actually claim it. There is no black 
school in the system which depends very much upon the 
school bus to get the children to school. The total number 
of children transported in October, 1969, to schools identi­
fiable as black was 541 out of total population in those black 
schools of over 17,000. Black schools, including the new 
black schools, have been located in black areas where busses 
would be unnecessary. Suburban schools, including the 
newest ones, have been located far away from black centers, 
and where they can not be reached by many students with­
out transportation.

18. Bus travel in both urban and rural areas takes time. 
An analysis of the records of bus transportation, based 
upon the reports of school principals, is contained in the 
extensive exhibits hearing Plaintiffs’ Exhibit numbers 22, 
23, 24, 25, 26 and 27. For the month of October, 1969, by 
way of illustration, these principals’ reports when analyzed 
show that out of some 279 busses carrying more than 23,000 
children both ways each day:

The average one way trip is one hour and fourteen 
minutes;
80% of the busses require more than one hour for a 
one way trip;
75% of the busses make two or more trips each day; 
Average miles traveled by busses making one round 
trip per day is 34!%; and
Average bus mileage per day for busses making two 
trips is 47.99.

Supplemental Findings of Fact dated March 21, 1970



143a

19. It was the testimony of Dr. Self and Dr. Finger, and 
the courts finds as a fact, that transportation provided by 
the school board’s plans, which include narrow corridors 
several miles long and in places only one-half mile wide, 
proceeding in straight lines diagonally across streets and 
other obstacles, would be more expensive per capita than 
transportation under the satellite zone plan. The court 
plan calls for pick-ups to he made at a few points in each 
school district, as testified to by Dr. Self, and for non-stop 
runs to be made between satellite zones and principal zones. 
There will be no serious extra load on downtown traffic be­
cause there will be no pick-up and discharge of passengers 
in downtown traffic areas.

20. The court finds that from the standpoint of distance 
travelled, time en route and inconvenience, the children 
bussed pursuant to the court order will not as a group 
travel as far, nor will they experience more inconvenience 
than the more than 28,000 children who are already being 
transported at state expense.

21. On July 29, 1969 (pursuant to the court’s April 23, 
1969 order that they frame a plan for desegregation and 
that school busses could be used as needed), the defendants 
proposed a plan for closing seven inner-city black schools 
and bussing 4,200 students to outlying schools. The plan 
was approved. It had some escape clauses in it, and the 
defendants in practice added some others; but as presented, 
and as approved by the court, the “freedom of choice” con­
templated was very narrowly restricted; and bussing of 
several hundred students has taken place under that plan.

22. Evidence of property valuations produced by the 
defendants shows that the value of the seven school proper-

Supplemental Findings of Fact dated March 21, 1970



144a

ties closed under the July 29, 1969 plan, and now for the 
most part standing idle, was over three million dollars.

23. The all-black or predominantly black elementary 
schools which the hoard plan would retain in the system 
are located in an almost exclusively Negro section of Char­
lotte, which is very roughly triangular in shape and meas­
ures about four or five miles on a side. Some are air-condi­
tioned and most are modern. Virtually none of their patrons 
now ride busses; the schools were located where the black 
patrons were or were expected to be. These schools, their 
completion dates, and representative academic perfor­
mances of their sixth grade graduating classes are shown 
in the following table:

Supplemental Findings of Fact dated March 21, 1970



Too in iorar : Irion shown ir.

A\.’ t.T ‘ I . :a.<on i r o n  answ er: 
t o  i n t e r r o g a t o r i o s , Nos .  
i - f ,  1 - g  and i - h ,  f i l e d  
O c to b e r "2 5 . 1938 .__________

GIIADZ 6 AVERAGE ACHIEVEMENT TEST SCORES. SHOWN IN GRAD 
EOUI VALENT (such as 6 .2  = 6 th grade. 2nd month)_.----- -'.v.r—

YEAR
SCHOOL BUILT

YEARS OF 
ADDITIONS'

•NO. OF 
-MOBILE 

UNITS
WORD

MEANING
PARAGRAPH

MEANING SPELLING LANGUAG
ACM

E (MATH)
AON

(MATH)
7. 7. ^

( v*' r- r’

2RUN3 AVENUE 1953 — 0 4 .1 4 . 1 4 .7 4 . 1 4 .0 4 .7 A_ *

.ARDE DAVIS 1951 1953
1957
1959

0 4 .3 4 . 4 4 .8 4 . 1 4 .5 4 .8 4 . i

DOUBLE OAKS 1952 1955 1 4 . 0 4 . 0 4 .6 3 .6 3 . 9 4 .4 3 .7

193 5

DRUID HILLS ' 15S0 1954 c 4 . 0 4 .2 4 .5 3 .9 3 .9 4 .5 4 .1

DIDST HARD 1912 1950
1931

0 4 .0 4 . 1 4 .8 3 .6 3 .9 4 .6 *T . —

1933

LINCOLN HEIGHTS 1953 1953 5 4 .4 4 .4 4 . 3 A  .  2 £ . 3 * O*7 .  V 4 .1

OAKLANN 1954 — 0 4 .4 4 .5 5 .2 4 .7 4 .5 4 . 9 4 .4

UNIVERSITY PARK 1957 1953
1964

5 4 .4 4 .7 4 .8 4 .3 4 .4 4 .8 \ 4 .4

VILLA HEIGHTS 1912 1934 3 ' 4 . 3 4 .4 4 .7 3 .6 4 .4 , 4 . 7 4 . 2

1937

C l 
VO



145a

Supplemental Findings of Fact dated March 21, 1970



146a

24. Both Dr. Finger and the school hoard staff appear 
to have agreed, and the court finds as a fact, that for the 
present at least, there is no way to desegregate the all- 
black schools in Northwest Charlotte without providing (or 
continuing to provide) bus or other transportation for thou­
sands of children. All plans and all variations of plans 
considered for this purpose lead in one fashion or another 
to that conclusion.

25. In the court’s order of April 23, 1969, a suggestion 
was made that the hoard seek consultation or assistance 
from the office of Health, Education and Welfare. The 
hoard refused to do this, and as far as the court knows 
has not sought help from HEW.

26. Some 600 or more pupils transfer from one school 
to another or register for the first time into the system 
during the course of each month of the typical school year. 
It is the assignment of these children which is the particu­
lar subject of the reference in paragraph 13 of the order 
to the manner of handling assignments within the school 
year.

27. No plan for the complete desegregation of the schools 
was available to the court until the appointment of Dr. 
John A. Finger, Jr. and the completion of his tactful and 
effective work with the school administrative staff in De­
cember 1969 and January 1970. Dr. Finger has a degree 
in science from Massachusetts Institute of Technology and 
a doctor’s degree in education from Harvard University, 
and twenty years’ experience in education and educational 
problems. He has worked in a number of school desegrega­
tion cases and has a rare capacity for perception and solu­
tion of educational problems. His work with the staff had

Supplemental Findings of Fact dated March 21, 1970



147a

the catalytic effect of freeing and inducing the staff to 
work diligently in the preparation of plans that would 
accomplish the result required, and which would be co­
hesive and efficient from an educational point of view.

28. Hearings on the “Finger” plans and on the board’s 
proposed plans were conducted on February 2 and Febru­
ary 5, 1970. These plans may best be understood if they 
are considered in four divisions:

29. The plan for senior high schools.—The plan ordered 
to be put into effect May 4, 1970 is the board’s own plan 
for desegregation of the senior high schools in all particu­
lars except that the order calls for the assignment to 
Independence High School of some 300 black children. The 
board contends the high school plans will call for additional 
transportation for 2,497 students and will require 69 busses. 
The court is unable to accept this view of the evidence. All 
transportation under both the board and the court plan 
is covered by state law.

30. The plan for junior high schools.—A plan for junior 
high schools was prepared by the board staff and Dr. 
Finger and was submitted to the court as Dr. Finger’s 
plan. The board submitted a separate plan. Both plans 
used the technique of re-zoning. The school board’s plan 
after all of their re-zoning had been done left Piedmont 
Junior High School 90% black and shifting towards 100% 
black. The plan designed by Dr. Finger with staff assist­
ance included zoning in such a way as to desegregate all 
the schools. This zoning was aided by a technique of 
“satellite” districts. For example, black students from 
satellite districts in the central city area around Piedmont 
Courts will be assigned to Alexander Graham Junior High,

Supplemental Findings of Fact dated March 21, 1970



148a

which is predominantly white. Black students from the area 
around Northwest Junior High School (all-black) will be 
similarly transferred to Wilson Junior High, northwest of 
the air port. These one-way transfers, essentially identical 
in nature to the board’s July 29, 1969 plan, will result in 
the substantial desegregation of all the junior high schools, 
which are left under this plan with black student popula­
tions varying from 9% at J. H. Gunn to 33% at Alexander 
and Randolph.

The court order did not require the adoption of the 
Finger plan. In paragraph 19 of the order the board were 
given four choices of action to complete the process of 
desegregating the junior high schools. These choices were 
(1) Re-zoning; (2) Two-way transporting of pupils between 
Piedmont and white schools; (3) Closing Piedmont and as­
signing the black students to other junior high schools; or 
(4) Adoption of the Finger plan.

The board elected to adopt and did adopt the Finger 
plan by resolution on February 9, 1970.

The defendants have offered figures on the basis of which 
they ask the court to find that 4,359 students will have to 
be transported under the junior high school plan and that 
84 busses will be required. The court is unable to find that 
these contentions are borne out by the statistics and other 
evidence offered.

Hr. Self, the school superintendent, and Dr. Finger, the 
court appointed expert, both testified that the transporta­
tion required to implement the plan for junior highs would 
be less expensive and easier to arrange than the transporta­
tion proposed under the board plan. The court finds this 
to be a fact.

Two schools may be used to illustrate this point. Smith 
Junior High under the board plan would have a contigu­

Supplemental Findings of Fact dated March 21, 1970



149a

ous district six miles in length extending 4% miles north 
from the school itself. The district throughout the greater 
portion of its length is one-half mile wide and all roads 
in its one-half mile width are diagonal to its borders. East­
way Junior High presents a shape somewhat like a large 
wooden pistol with a fat handle surrounding the school 
off Central Avenue in East Charlotte and with a corridor 
extending three miles north and then extending at right 
angles four miles west to draw students from the Double 
Oaks area in northwest Charlotte. Obviously picking up 
students in narrow corridors along which no major road 
runs presents a considerable transportation problem.

The Finger plan makes no unnecessary effort to main­
tain contiguous districts, but simply provides for the send­
ing of busses from compact inner city attendance zones, 
non-stop, to the outlying white junior junior high schools, 
thereby minimizing transportation tie-ups and making the 
pick-up and delivery of children efficient and time-saving.

It also is apparent that if the board had sought the 
minimum departure from its own plan, such minimum re­
sult could have been achieved by accepting the alternative 
of transporting white children into and black children out 
of the Piedmont school until its racial characteristics had 
been eliminated.

In summary, as to junior high schools, the court finds 
that the plan chosen by the board and approved by the 
coui’t places no greater logistic or personal burden upon 
students or administrators than the plan proposed by the 
school board; that the transportation called for by the 
approved plan is not substantially greater than the tran­
sportation called for by the board plan; that the approved 
plan will be more economical, efficient and cohesive and 
easier to administer and will fit in more nearly with the

Supplemental Findings of Fact dated March 21, 1970



150a

transportation problems involved in desegregating ele­
mentary and senior high schools, and that the board made 
a correct administrative and educational choice in choosing 
this plan instead of one of the other three methods.

31. The plan for elementary schools.—The elementary 
school desegregation program is best understood by divid­
ing it into two parts: (a) The 27 schools being desegregated 
by zoning; and (b) The 34 schools being desegregated by 
grouping, pairing and transportation between school zones.

32. The re-zoned group. Two plans were submitted to 
the court. The school board plan was prepared for the 
board by its staff. It relied entirely upon zoning with the 
aid of some computer data supplied by Mr. Weil, a board 
employed consultant. It did as much as could reasonably 
be accomplished by re-zoning school boundaries. It would 
leave nine elementary schools 83% to 100% black. (These 
schools now serve 6,462 students—over half the black ele­
mentary pupils.) It would leave approximately half the 
white elementary students attending schools which are 86% 
to 100% white. In short, it does not tackle the problem of 
the black elementary schools in northwest Charlotte.

The “Finger plan” was the result of nearly two months 
of detailed work and conference between Dr. Finger and 
the school administrative staff. Dr. Finger prepared sev­
eral plans to deal with the problem within the guidelines 
set out in the December 1, 1969 order. Like the board plan, 
the Finger plan does as much by re-zoning school atten­
dance lines as can reasonably be accomplished. However, 
unlike the board plan, it does not stop there. It goes fur­
ther and desegregates all the rest of the elementary schools 
by the technique of grouping two or three outlying schools 
with one black inner city school; by transporting black

Supplemental Findings of Fact dated March 21, 1970



151a

students from grades one through four to the outlying white 
schools; and by transporting white students from the fifth 
and sixth grades from the outlying white schools to the 
inner city black school.

The “Finger plan” itself in the form from which in prin­
ciple the court approved on February 5, 1970, was prepared 
by the school staff and was filed with the court by repre­
sentatives of the school board on February 2, 1970. It 
represents the combined thought of Dr. Finger and the 
school administrative staff as to a valid method for promptly 
desegregating the elementary schools, if such desegrega­
tion is required by law to be accomplished.

This plan was drafted by the staff and by Dr. Finger 
in such a way as to make possible immediate desegregation 
if it should be ordered by an appellate court in line with 
then current opinions of appellate courts.

The testimony of the school superintendent, Dr. Self, 
was, and the court finds as a fact, that the zoning portion 
of the plan can be implemented by April 1, 1970 along edu­
cationally sound lines and that the transportation problems 
presented by the zoning portion of the plan can be solved 
with available resources.

The court has reviewed the statistics supplied to it by 
the original defendants with regard to elementary schools 
to be desegregated by re-zoning. These schools have been 
zoned with compact attendance areas and with a few ex­
ceptions they have no children beyond iy% miles distance 
from the school to which they are assigned. Although some 
transportation will be required, the amount is not consider­
able when weighed against the already existing capacity 
of the system. The court specifically finds that not more 
than 1,300 students will require transportation under this 
portion of the program and that the bus trips would be so

Supplemental Findings of Fact dated March 21, 1970



152a

short and multiple bus runs so highly practical that 10 
school busses or less will be adequate.

33. The pairing and grouping of 34 elementary schools. 
—This part of the plan as previously described would 
group an inner city black school with two or more outly­
ing white schools and assign children back and forth be­
tween the two so that desegregated fifth and sixth grades 
would be established in the presently black schools and de­
segregated grades one through four would be established 
in the presently white schools. The estimate of Dr. Finger 
and Dr. Self, the superintendent, was that this program 
would require transporting roughly 5,000 white pupils of 
fifth and sixth grade levels into inner city schools. The 
board in its latest estimate puts the total figure at 10,206. 
Just what is the net additional number of students to be 
transported who are not already receiving transportation 
is open to considerable question.

34. The Discount Factors.—The court accepts at face 
value, for the most part, the defendants’ evidence of mat­
ters of independent fact, but is unable to agree with the 
opinions or factual conclusions urged by counsel as to the 
numbers of additional children to be transported, and as 
to the cost and difficulty of school bus transportation. The 
defendants in their presentation have interpreted the facts 
to suggest inconvenient and expensive and burdensome 
views of the court’s order. Their figures must be discounted 
in light of various factors, all shown by the evidence, as 
follows:

(a) Some 5,000 children daily are provided trans­
portation on City Coach Lines, in addition to the

Supplemental Findings of Fact dated March 21, 1970



153a

23,600 and more who ride school busses. These have 
not been considered in the defendants’ calculations.

(b) Not all students eligible for transportation actu­
ally accept it. The board’s estimates of transportation, 
however, assume that transportation must he provided 
daily for all eligible students.

(c) Not all registered students attend all schools 
every day. The board’s figures appear to assume they 
do. Statewide, average daily attendance is less than 
94% of initial registration.

(d) The present average number of students trans­
ported round trip, to and from school, per bus, per 
day, is more than 83. The board’s estimates, however, 
are based on the assumption that they can transport 
only 44 or 46 pupils, round trip, per bus, per day 
when the bus serves a desegregation role.

(e) Busses now being used make an average of 1.8 
trips per day. Board estimates to implement the de­
segregation plan contemplate only one trip per bus 
per day!

(f) The average one-way bus trip in the system to­
day is over 15 miles in length and takes nearly an hour 
and a quarter. The average length of the one-way trips 
required under the court approved plan for elementary 
students is less than seven miles, and would appear 
to require not over 35 minutes at the most, because no 
stops will be necessary between schools.

(g) The board’s figures do not contemplate using 
busses for more than one load of passengers morning 
or afternoon. Round trips instead of one-way trips 
morning and afternoon could cut the bus requirements 
sharply.

Supplemental Findings of Fact dated March 21, 1970



154a

(h) The number of busses required can be reduced 
35% to 50% by staggering the opening and closing- 
hours of schools so that multiple bus trips can be made. 
This method is not considered in the board’s estimates, 
according to testimony of J. D. Morgan, bus superin­
tendent.

(i) Substantial economies may reasonably be ex­
pected when all phases of the bussing operation have 
been coordinated instead of being considered sepa­
rately.

(j) In estimating how many children live more than 
a mile and a half from schools, and therefore are en­
titled to transportation, the board’s transportation peo­
ple have used some very short measurements. As the 
court measures the maps, very few of the students in 
the re-zoned elementary schools, for example, live 
more than IV2 miles from their assigned schools. If 
the board wants to transport children who live less 
than IV2 miles away they may, but if they do, it is 
because of a board decision rather than because of the 
court’s order.

(k) Transportation requirements could be reduced 
by raising the walking distance temporarily from 1% 
to perhaps 1 %  miles. This has apparently not been 
taken into account.

(l) Testimony of J. D. Morgan shows that busses 
can be operated at a 25% overload. Thus a 60-passen- 
ger bus (the average size) can if necessary transport 
75 children. Some busses in use today transport far 
more.

35. Findings of Fact as to Required Transportation.— 
After many days of detailed study of maps, exhibits and

Supplemental Findings of Fact dated March 21, 1970



155a

statistics, and after taking into account all the evidence, 
including the “discount factors” mentioned above, the court 
finds as facts that the maximum number of additional chil­
dren who may conceivably require transportation under the 
court ordered plans, and the maximum numbers of addi-

Supplemental Findings of Fact dated March 21, 1970

tional busses needed are as follows:
Net Additional Number of

Transportees Busses Needed
Senior Highs 1,500 20
Junior Highs 2,500 28
Elementaries:

Re-zoned 1,300 10
Paired and Grouped 8,000 80

Totals 13,300 138

36. These children (all but a few hundred at Hawthorne, 
Piedmont, Alexander Graham, Myers Park High School, 
Eastover, West Charlotte and a few other places), if as­
signed to the designated schools, are entitled to transpor­
tation under existing state law, independent of and regard­
less of this court’s order respecting bussing.

37. The court also finds that the plan proposed by the 
board would have required transportation for at least 5,000 
students in addition to those now being transported.

38. Separability.—Each of the four parts of the deseg­
regation plan is separable from the other. The re-zoning 
of elementaries can proceed independent of the pairing 
and grouping. The pairing and grouping can take place 
independent of all other steps. The implementation of the



156a

pairing and grouping plan itself can be done piecemeal, 
one group or several groups at a time, as transportation 
becomes available. It was planned tliat way.

39. The Time Table.—The February 5, 1970 order fol­
lowed the time table requested by the defendants. At the 
February 2 hearing, the school board attorney requested 
until April 1, 1970 to desegregate the elementary schools 
(T. 20); he requested that high school seniors be allowed 
to graduate where they are (T. 21); he proposed continu­
ing junior high students and grades 10 and 11 in their 
present schools until the third week before the end of 
school (T. 21). The request of Dr. Self, the school super­
intendent, was identical as to elementaries and 12th grad­
ers ; he preferred to transfer 10th and 11th graders about 
two weeks before school was over (T. 95). Availability of 
transportation was the only caveat voiced at the hearing.

40. The February 5 order expressly provided that “ra­
cial balance” was not required. The percentage of black 
students in the various parts of the plans approved vary 
from 3% black at Bain to 41% black at Cornelius.

41. Cost.—Busses cost around $5,400.00 each, varying 
according to size and equipment. Total cost of 138 busses, 
if that many are needed, would therefore be about $745,-
200.00. That is much less than one week’s portion of the 
Mecklenburg school budget. Busses last 10 to 15 years. 
The state replaces them when worn out.

Some additional employees will be needed if the trans­
portation system is enlarged.

Defendants have offered various estimates of large in­
creased costs for administration, parking, maintenance, 
driver education and other items. If they choose to incur

Supplemental Findings of Fact dated March 21, 1970



157a

excess costs, the court can not prevent it. However, the 
evidence shows that school bus systems in Charlotte and 
other urban North Carolina counties tend to operate at 
lower costs per student than rural systems. Adding a 
larger number of short-range capacity loads should not 
tend to increase the present overall per capita cost of $40 
a year.

It is the opinion and finding of the court that the annual 
transportation cost per student, including amortization of 
the purchase price of the busses, will be at or close to 
$40.00, and that the total annual cost, which is paid about 
half by the state and half by the county, of implementing

Supplemental Findings of Fact dated March 21, 1970

this order, will not exceed the following:
For zoned Elementaries (1,300) $ 52,000
For paired Elementaries (8,000) 320,000
For Junior Highs (2,500) 100,000
For Senior Highs (1,500) 60,000

$532,000'

41. A v a ila b ilityThe evidence shows that the defend­
ant North Carolina Board of Education has approximately 
40 brand new school busses and 375 used busses in storage, 
awaiting orders from school boards. None had been sold 
at last report. The state is unwilling to sell any of them 
to Mecklenburg because of the “anti-bussing” law. No or­
ders for busses have been placed by the school board.

If orders to manufacturers had been placed in early 
February, delivery in 60 or 90 days could have been antici­
pated. The problem is not one of availability of busses *

* The local system’s share of this figure would be $266,000.00, 
which at current rates is only slightly more than the annual interest 
or the value of the $3,000,000.00 worth of school properties closed 
in 1969.



158a

Supplemental Findings of Fact dated March 21, 1970

but of unwillingness of Mecklenburg to buy them and of 
the state to furnish or make them available until final 
decision of this case.

This the 21 day of March, 1970.

/ s /  J am es  B . M cM illan  
James B. McMillan 

United States District Judge



159a

Pursuant to the order of the Fourth Circuit Court of 
Appeals, filed March 5, 1970, this memorandum is issued.

Previous orders cover more than one hundred pages. 
The motions and exhibits and pleadings and evidence num­
ber thousands of pages, and the evidence is several feet 
thick. It may be useful to reviewing authorities to have 
a brief summary of the case in addition to the supple­
mental facts on the questions of transportation.

Before 1954, the schools in Charlotte and Mecklenburg 
County were segregated by state law. The General As­
sembly, in response to Brown v. Board of Education, 
adopted the Pupil Assignment Act of 1955-56, North Caro­
lina General Statutes, §115-176, which was quoted in the 
April 23, 1969 order and which is still the law of North 
Carolina. It provides that school boards have full and 
final authority to assign children to schools and that no 
child can be enrolled in nor attend a school to which he 
has not been so assigned.

“Freedom of choice” to pick a school has never been 
a right of North Carolina public school students. It has 
been a courtesy offered in recent years by some school 
boards, and its chief effect has been to preserve segre­
gation.

Slight token desegregation of the schools occurred in 
the years following Brown. The Mecklenburg County and 
the Charlotte City units were merged in 1961.

This suit was filed in 1965, and an order was entered 
in 1965 approving the school board’s then plan for de­
segregation, which was substantially a freedom of choice 
plan coupled with the closing of some all-black schools.

There was no further court action until 1968, when a 
motion was filed requesting further desegregation. Most

Supplem ental M em orandum  dated M arch 2 1 , 1 9 7 0



160a

white students still attended “white” schools and most black 
students still attended “black” schools. The figures on 
this subject were analyzed in this court’s opinion of 
April 23, 1969 ( 300 F.Supp. 1358 (1969)), in which the 
background and history of local segregation and its con­
tinuing discriminatory nature were analyzed at length. 
In that order the court ruled that substantial progress had 
been made and that many of the alleged acts of discrimina­
tion were not proved.

However, certain significant findings and conclusions 
were made which have been of record without appeal for 
eleven months. These include the following:

1. The schools were found to be unconstitutionally 
segregated.

2. Freedom of choice had failed; no white child had 
chosen to attend any black school, and freedom of 
choice promoted rather than reduced segregation.

3. The concentration of black population in north­
west Charlotte and the school segregation which ac­
companied it were primarily the result of discrimina­
tory laws and governmental practices rather than of 
natural “neighborhood” forces. (This finding was re­
affirmed in the order of November 7, 1969.)

4. The board had located and controlled the size 
and population of schools so as to maintain segrega­
tion.

5. The plan approved and put into effect in 1965 
had not eliminated unlawful segregation.

6. The defendants operate a sizeable fleet of busses, 
serving over 23,000 children at an average annual cost 
(to state and local governments combined) of not more 
than $40 per year per pupil.

Supplemental Memorandum dated March 21, 1970



161a

7. Transportation by bus is a legitimate tool for 
school boards to use to desegregate schools.

8. Faculties were segregated, and should be de­
segregated.

9. Under Green v. New Kent County School Board, 
391 U.S. 430 (1968), there was now an active duty 
to eliminate segregation.

The board was directed to submit a plan to desegre­
gate the schools.

The order produced a great outcry from school board 
members and others. It also produced a plan which called 
for the closing of Second Ward, the only black high school 
located near a white neighborhood; and it produced no 
rezoning, no elimination of gerrymandering, and only 
minor changes in the pupil assignment plan. It did pro­
duce an undertaking to desegregate the faculties. The plan 
was reviewed in the court order of June 20, 1969, in which 
the court approved the provision for offering transporta­
tion to children transferring from majority to minority 
situations and directed the preparation of a plan for pupil 
desegregation.

The court also specifically found that gerrymandering 
had been taking place; and several schools were cited as 
illustrations of gerrymandering to promote or preserve 
segregation.

In June of 1969, pursuant to the hue and cry which 
had been raised about “bussing,” Mecklenburg representa­
tives in the General Assembly of North Carolina sought 
and procured passage of the so-called “anti-bussing” sta­
tute, N.C. G.S. 115-176.1. That statute reads as follows:

Ҥ115-176.1. Assignment of pupils based on race, 
creed, color or national origin prohibited. —No per­
son shall be refused admission into or be excluded 
from any public school in this State on account of

Supplemental Memorandum dated March 21, 1970



162a

Supplemental Memorandum dated March, 21, 1970

race, creed, color or national origin. No school at­
tendance district or zone shall be drawn for the pur­
pose of segregating persons of various races, creed, 
colors or national origins from the community.

“Where administrative units have divided the geo­
graphic area into attendance districts or zones, pupils 
shall be assigned to schools within such attendance 
districts; provided, however, that the board of edu­
cation of an administrative unit may assign any pupil 
to a school outside of such attendance district or zone 
in order that such pupil may attend a school of a 
specialized kind including but not limited to a voca­
tional school or school operated for, or operating pro­
grams for, pupils mentally or physically handicapped, 
or for any other reason which the board of education 
in its sole discretion deems sufficient. No student shall 
be assigned or compelled to attend any school on ac­
count of race, creed, color or national origin, or for 
the purpose of creating a balance or ratio of race, 
religion or national origins. Involuntary bussing of 
students in contravention of this article is prohibited, 
and public funds shall not be used for any such bussing.

“ The provisions of this article shall not apply to a 
temporary assignment due to the unsuitability of a 
school for its intended purpose nor to any assign­
ment or transfer necessitated by overcrowded condi­
tions or other circumstances which, in the sole discre­
tion of the school board, require assignment or re­
assignment .

“ The provisions of this article shall not apply to 
an application for the assignment or reassignment by 
the parent, guardian or person standing in loco pa­
rentis of any pupil or to any assignment made pur­
suant to a choice made by any pupil who is eligible



163a

to make such choice pursuant to the provisions of a 
freedom of choice plan voluntarily adopted by the 
board of education of an administrative unit. (1969, 
c. 1274.)”

The board’s next plan was filed July 29, 1969, and was 
approved for 1969-70 by the order of August 15, 1969. 
The August 15 order contained the following paragraph:

“The most obvious and constructive element in the 
plan is that the School Board has reversed its field 
and has accepted its affirmative constitutional duty to 
desegregate pupils, teachers, principals and staff mem­
bers ‘at the earliest possible date.’ It has recognized 
that where people live should not control where they 
go to school nor the quality of their education, and 
that transportation may be necessary to comply with 
the law. It has recognized that easy methods will not 
do the job ; that rezoning of school lines, perhaps whole­
sale; pairing, grouping or clustering of schools; use 
of computer technology and all available modern busi­
ness methods can and must be considered in the dis­
charge of the Board’s constitutional duty. This court 
does not take lightly the Board’s promises and the 
Board’s undertaking of its affirmative duty under the 
Constitution and accepts these assurances at face 
value. They are, in fact, the conclusions which neces­
sarily follow when any group of women and men of 
good faith seriously study this problem with knowl­
edge of the facts of this school system and in light of 
the law of the land.”

Supplemental Memorandum dated March 21, 1970

The essential action of the board’s July 29, 1969 plan 
was to close seven inner-city black schools and to re-assign 
their pupils to designated white suburban schools, and to



164a

transport these children by bus to these suburban schools. 
In addition, it was proposed to re-assign 1,245 students 
from named black schools to named suburban white schools 
and provide them transportation.

The total of this one-way transportation of black stu­
dents only to white schools under this plan was stated to 
be 4,245 children.

No problem of transportation or other resources was 
raised or suggested.

The evidence of the defendants is that the property 
value of the schools thus closed exceeds $3,000,000. For 
the most part, that property stands idle today.

The “ anti-bussing” law was not found by the board to 
interfere with this proposed wholesale re-assignment and 
“massive bussing,” of black children only, for purposes 
of desegregation.

The plan, by order of August 15, 1969, was approved 
on a one-year basis only, and the board was directed to 
prepare and file by November 17, 1969, a plan for complete 
desegregation of all schools, to the maximum extent pos­
sible, by September 1, 1970.

The defendants filed a motion asking that the deadline 
to prepare a plan be extended from November 17, 1969, 
to February 1, 1970. The court called for a report on the 
results of the July 29, 1969 plan. Those results Avere out­
lined in this court’s order of November 7, 1969. In sub­
stance, the plan which was supposed to bring 4,245 children 
into a desegregated situation had been handled or allowed 
to dissipate itself in such a way that only about one-fourth 
of the promised transfers were made; and as of now only 
767 black children are actually being transported to subur­
ban white schools instead of the 4,245 advertised when 
the plan was proposed by the board. (See defendants’

Supplemental Memorandum dated March 21, 1970



165a

March 13, 1970 response to plaintiffs’ requests for admis­
sions.)

The meager results of eight months of planning were 
further set out in this court’s November 7, 1969 order, 
as follows:

Supplemental Memorandum dated March 21, 1970

“ The Situation Today

“ The following table illustrates the racial distribution of the 
present school population:

Schools Readily Identifiable as W hite

N u m b e r  o f N u m b e r s  o f  S t u d e n t s

%  W h i t e S c h o o l s W h i t e B l a c k Totals

1 0 0 % 9 6 ,6 0 5 2 6 ,6 0 7

9 8 - 9 9 % 9 4 ,8 0 1 4 9 4 ,8 5 0

9 5 - 9 7 % 12 1 0 ,8 3 6 5 0 5 1 1 ,3 4 1

9 0 - 9 4 % 17 1 4 ,0 7 0 1 ,2 4 3 1 5 ,3 1 3

8 6 - 8 9 % 10 8 ,7 0 0 1 ,1 6 9 9 ,8 6 9

57 4 5 ,0 1 2 2 ,9 6 8 4 7 ,9 8 0

S c h o o l s  R e a d i l y I d e n t i f i a b l e a s  B l a c k

N u m b e r  o f N u m b e r s  o f  S t u d e n t s

%  B l a c k S c h o o l s W h i t e B l a c k T o t a l s

1 0 0 % 11 2 9 ,2 1 6 9 ,2 1 8

9 8 - 9 9 % 5 41 3 ,4 3 2 3 ,4 7 3

9 0 - 9 7 % 3 1 2 1 1 ,2 9 7 1 ,4 1 8

5 6 - 8 9 % 6 9 8 9 2 ,2 5 2 3 ,24 1

2 5 1 ,1 5 3 1 6 ,1 9 7 1 7 ,3 5 0

S c h o o l s  N o t  R e a d i l y  I d e n t i f i a b l e  b y  R a c e

N u m b e r  o f N u m b e r s  o f  S t u d e n t s

%  B l a c k S c h o o l s W h i t e B l a c k T o t a l s

3 2 - 4 9 % 10 4 ,3 2 0 2 ,8 6 8  • 7 ,1 8 8

1 7 - 2 0 % 8 5 ,3 6 3 1 ,2 3 0 6 ,5 9 3

2 2 - 2 9 % 6 3 ,9 8 0 1 ,4 5 1 5 ,4 3 1

2 4 1 3 ,6 6 3 5 ,5 4 9 1 9 ,2 1 2

T o t a l s : 1 0 6 5 9 ,8 2 8 2 4 ,7 1 4 8 4 ,5 4 2



166a

Supplemental Memorandum dated March 21, 1970 

Some of the data from the table, re-stated, is as follows:
Number of schools ................................................ 106
Number of white pupils ....................................  59,828
Number of black pupils ....................................  24,714
Total pupils ..........................................................  84,542
Per cent of white pupils .....................................  71%
Per cent of black pupils .....................................  29%
Number of “white” schools ......................    57
Number of white pupils in those schools ......... 45,012
Number of “black” schools ..   25
Number of black pupils in those schools .......... 16,197
Number of schools not readily identifiable by

race .....................................................................  24
Number of pupils in those schools ..................  19,212
Number of schools 98-100% black .................... 16
Negro pupils in those schools ............................ 12,648
Number of schools 98-100% white ........................ 18
White pupils in those schools ...........    11,406

“ Of the 24,714 Negroes in the schools, something above 
8,500 are attending ‘white’ schools or schools not readily 
identifiable by race. More than 16,000, however, are obvi­
ously still in all-black or predominantly black schools. The 
9,216 in 100% black situations are considerably more than 
the number of black students in Charlotte in 1954 at the 
time of the first Brown decision. The black school prob­
lem has not been solved.

“ The schools are still in major part segregated or ‘dual’ 
rather than desegregated or ‘unitary.’

“ The black schools are for the most part in black resi­
dential areas. However, that does not make their segrega­
tion constitutionally benign. In previous opinions the facts



167a

respecting their locations, their controlled size and their 
population have already been found. Briefly summarized, 
these facts are that the present location of white schools in 
white areas and of black schools in black areas is the result 
of a varied group of elements of public and private action, 
all deriving their basic strength originally from public law 
or state or local governmental action. These elements in­
clude among others the legal separation of the races in 
schools, school busses, public accommodations and housing; 
racial restrictions in deeds to land; zoning ordinances; city 
planning; urban renewal; location of public low rent hous­
ing ; and the actions of the present School Board and others, 
before and since 1954, in locating and controlling the capac­
ity of schools so that there would usually be black schools 
handy to black neighborhoods and white schools for white 
neighborhoods. There is so much state action embedded 
in and shaping these events that the resulting segregation 
is not innocent or ‘de facto,’ and the resulting schools are 
not ‘unitary’ or desegregated.

“ F keedom of C hoice

“Freedom of choice has tended to perpetuate segrega­
tion by allowing children to get out of schools where their 
race would be in a minority. The essential failure of the 
Board’s 1969 pupil plan was in good measure due to free­
dom of choice.

“As the court recalls the evidence, it shows that no white 
students have ever chosen to attend, any of the ‘black’ 
schools.

“ Freedom of choice does not make a segregated school 
system lawful. As the Supreme Court said in Green v. 
New Kent County, 391 IT. S. 430 (1968):

“ * * If there are reasonably available other ways,
such for illustration as zoning, promising speedier and

Supplemental Memorandum dated March 21, 1970



168a

more effective conversion to a unitary, nonracial school 
ysstem, “freedom of choice” must be held unacceptable.’

“Redrawing attendance lines is not likely to accomplish 
anything stable toward obeying the constitutional mandate 
as long as freedom of choice or freedom of transfer is 
retained. The operation of these schools for the foresee­
able future should not include freedom of choice or trans­
fer except to the extent that it reduces segregation, although 
of course the Board under its statutory power of assign­
ment can assign any pupil to any school for any lawful 
reason.”

(The information on the two previous pages essentially 
describes the condition in the Charlotte-Mecklenberg 
schools today.)

Meanwhile, on October 29, 1969, the Supreme Court in 
Alexander v. Holmes County, 396 U. S. 19 (1969), ordered 
thirty Mississippi school districts desegregated immediately 
and said that the Court of Appeals

“ . . . should have denied all motions for additional time 
because continued operation of segregated schools un­
der a standard of allowing all deliberate speed for 
desegregation is no longer constitutionally permissible. 
Under explicit holdings of this Court, the obligation 
of every school district is to terminate dual school 
systems at once and to operate now and hereafter only 
unitary schools. Griffin v. School Board, 377 U.S. 218, 
234 (1964); Green v. School Board of New Kent 
County, 391 U. S. 430, 439, 442 (1968).” (Emphasis 
added.)

Because of this action and decision of the Supreme Court, 
this court did not feel that it had discretion to grant the 
requested time extension, and it did not do so.

Supplemental Memorandum dated March 21, 1970



169a

The board then filed a further desegregation plan on 
November 17, 1969. The plan was reviewed in the order of 
December 1, 1969. It was not approved because it rejected 
the goal of desegregating all the schools or even all the 
black schools. It proposed to concentrate on methods such 
as rezoning and freedom of choice and to discard any con­
sideration of pairing, grouping, clustering and transport­
ing or other methods. It proposed to retain numerous all­
black schools.

The performance results, set out in previous orders, show 
that the all-black schools lag far behind white schools or 
desegregated schools.

The court, in an order dated December 1, 1969, reviewed 
the recent decisions of courts and laid out specific guide­
lines for the preparation of a plan which would desegregate 
the schools. A consultant, Dr. John A. Finger, Jr., was 
appointed to draft a plan for the desegregation of the 
schools for use of the court in preparing a final order. The 
school board was authorized and encouraged to prepare an­
other plan of its own if it wished.

Dr. Finger worked with the school board staff members 
over a period of two months. He drafted several different 
plans. When it became apparent that he could produce 
and would produce a plan which would meet the require­
ments outlined in the court’s order of December 1, 1969, the 
school staff members prepared a school board plan which 
would be subject to the limitations the board had described 
in its November 17, 1969 report. The result was the pro­
duction of two plans—the board plan and the plan of the 
consultant, Dr. Finger.

The detailed work on both final plans was done by the 
school board staff.

The high school plan prepared by the board was recom­
mended by Dr. Finger to the court with one minor change.

Supplemental Memorandum dated March 21, 1970



170a

This change involved transporting three hundred inner city 
black children to Independence High School. As to high 
school students, then, the plan which was ordered by the 
court to take effect on May 4, 1970 is the school board’s 
plan, with transportation added for three hundred students. 
The proportion of black children in the high schools varies 
from 17% to 36% under this plan.

For junior high schools, separate plans were prepared 
by Dr. Finger and by the board. The board plan would 
have used zoning to desegregate all the black junior high 
schools except Piedmont, which it would have left 90% 
black. The Finger plan employed re-zoning as far as ap­
peared feasible, and then provided for transportation be­
tween inner city black zones and outlying white schools to 
desegregate all the schools, including Piedmont.

The court offered the school board the options of (1) re­
zoning, or (2) closing Piedmont, or (3) two-way transport 
of students between Piedmont and other schools, or (4) 
accepting the Finger plan which desegregates all junior 
high schools.

The board met and elected to adopt the Finger plan 
rather than close Piedmont or rearrange their own plan. 
The Finger plan may require the transportation of more 
students than the board plan would have required, but it 
handles the transportation more economically and effi­
ciently, and does the job of desegregating the junior high 
schools. The percentage of black students in the junior 
high schools thus constituted will vary from 9% to 33%.

The transportation of junior high students called for 
in the plan thus adopted by the board pursuant to the court 
order of February 5, 1970, is essentially the same sort 
that was adopted without hesitation for 4,245 black chil­
dren when the seven black inner city schools were closed 
in 1969.

Supplemental Memorandum dated March 21, 1970



171a

For elementary schools the problem is more complicated. 
Dr. Finger prepared several plans to desegregate the ele­
mentary schools and reviewed them with the school staff. 
It was apparent that even the gerrymandering considered 
by the board could not desegregate all the elementary 
schools, and that without transportation there is no way 
by which in the immediate future the continuing effects of 
state imposed segregation can he removed. Dr. Finger 
prepared a plan which proposed re-zoning of as many 
schools as could be desegregated by re-zoning and which 
then proposed pairing or grouping of schools. By pairing 
or grouping, a black school and one or more white schools 
could be desegregated by having grades one through four, 
black and white, attend the white schools, and by having 
grades five and six, black and white, attend the black school, 
and by providing transportation where needed to accom­
plish this.

The original Finger plan proposed to group black inner 
city schools with white schools mostly in the south and 
southeast perimeter of the district.

The school staff drafted a plan which went as far as 
they could go with re-zoning and stopped there, leaving 
half the black elementary children in black schools and half 
the white elementary children in white schools.

In other words, both the plan eventually proposed by the 
school board and the plan proposed by Dr. Finger went 
as far as was thought practical to go with re-zoning. The 
distinction is that the Finger plan goes ahead and does the 
job of desegregating the black elementary schools, whereas 
the board plan stops half way through the job.

In its original form the Finger plan for elementary 
schools would have required somewhat less transportation 
than its final form, but would have been more difficult to

Supplemental Memorandum dated March 21, 1970



172a

put into effect rapidly. The pressure of time imposed by 
decisions of the Supreme Court and other appellate courts 
had become such that there was concern lest there be an 
order from one of the appellate courts for immediate 
February or March desegregation of the entire system. The 
school staff therefore, based on Finger’s guidelines, pre­
pared a final draft of his plan incorporating pairing, group­
ing and transporting on a basis which would better allow 
for early implementation with a minimum of administrative 
complications, in lieu of his original plan.

The result is that the plan for elementary schools which 
is known as the “Finger plan” was prepared in detail by 
the school staff and incorporates the thought and work of 
the staff on the most efficient method to desegregate the 
elementary schools.

The time table originally adopted by this court in April 
of 1969 was one calling for substantial progress in 1969 
and complete desegregation by September 1970. However, 
on October 29, 1969, in Alexander v. Holmes County, the 
Supreme Court ordered immediate desegregation of sev­
eral Deep South school systems and said that the Court 
of Appeals “ should have denied all motions for additional 
time.”  The Supreme Court adhered to that attitude in all 
decisions prior to this court’s order of February 5, 1970. 
In Carter v. West Feliciana Parish,------U. S .-------  (Janu­
ary 14, 1970), they reversed actions of the Fifth Circuit 
Court of Appeals which had extended time for desegregat­
ing hundreds of thousands of Deep South children beyond 
February 1, 1970. In Nesbit v. Statesville, et al., 418 F.2d 
1040, the Fourth Circuit Court of Appeals on December 2, 
1969, ordered the desegregation by January 1, 1970, of 
schools in Statesville, Reidsville and Durham, North Caro­
lina. Referring to the Alexander v. Holmes County deci­
sion, the Fourth Circuit said:

Supplemental Memorandum dated March 21, 1970



173a

“ The clear mandate of the Court is immediacy. Further 
delays will not be tolerated in this circuit.”  (Emphasis 
added.)

In that opinion the Court directed this district court to 
adopt a plan on December 19, 1969, for the City of States­
ville, effective January 1, 1970, which “ must provide for 
the elimination of the racial characteristics of Morningside 
School by pairing, zoning or consolidation. . . .”  As to 
Durham and Halifax, Virginia, courts were ordered to ac­
complish the necessary purpose by methods including pair­
ing, zoning, reassignment or “any other method that may 
be expected to work.”

In Whittenburg v. Greenville County, South Carolina,
------F .2d -------  (January 1970), the Fourth Circuit Court
of Appeals, citing Holmes County and Carter v. West Feli­
ciana Parish, said:

“More importantly the Supreme Court said emphati­
cally it meant precisely what it said in Alexander that 
general reorganization of school systems is requisite 
now, that the requirement is not restricted to the school 
districts before the Supreme Court in Alexander, and 
that Courts of Appeals are not to authorize the post­
ponement of general reorganization until September 
1970.” (Emphasis added.)

As to Greenville, in a case involving 58,000 children, the 
Court said that

“ The plan for Greenville may be based upon the revised 
plan submitted by the school board or upon any other 
plan that, will create a unitary school system.”  (Em­
phasis added.)

Supplemental Memorandum dated March 21, 1970



174a

“The District Court’s order shall not be stayed pend­
ing any appeal which may be taken to this court, but, 
in the event of an appeal, modification of the order 
may be sought in this court by a motion accompanied 
by a request for immediate consideration.”

Upon rehearing the Fourth Circuit Court of Appeals said 
on January 26, 1970:

“ The proper functioning of our judicial system requires 
that subordinate courts and public officials faithfully 
execute the orders and directions of the Supreme Court. 
Any other course would be fraught with consequences, 
both disastrous and of great magnitude. If there are 
appropritae exceptions, if the District Courts and the 
Courts of Appeals are to have some discretion to per­
mit school systems to finish the current 1969-1970 school 
year under current methods of operation, the Supreme 
Court may declare them, but no member of this court 
can read the opinions in carter as leaving any room 
for the exercise by this court in this case of any dis­
cretion in considering a request for postponement of 
the reassignment of children and teachers until the 
opening of the next school year.

“For these reasons the petition for rehearing and for 
a stay of our order must be denied.” (Emphasis added.)

The above orders of the Supreme Court and the Fourth 
Circuit Court of Appeals are the mandates under which 
this court had to make a decision concerning the plan to he 
adopted and the time when the plan should be implemented.

Supplemental Memorandum dated March 21, 1970

The Court further said:



175a

This court conducted hearings on February 2 and Feb­
ruary 5, 1970, upon the content and the effective date of 
the plans for desegregation of the Charlotte-Mecklenburg 
schools. On February 2nd, Mr. Waggoner, the attorney 
for the school board, requested the court to adopt a time 
table under which the elementary schools would be deseg­
regated immediately after Easter (about April 1st) and the 
junior highs and senior highs would be desegregated in 
May, about the third week before the end of school. Dr. 
Self, the school superintendent, requested essentially the 
same time table.

Dr. Self testified that the job could be done as to all 
students in the times requested if transportation could 
be arranged; and he and Mr. Waggoner indicated that by 
staggering hours of school and by effective use of busses 
the transportation problem might be solved.

The Supreme Court in Griffin v. Prince Edward County, 
377 IT. S. 218 (1964), had held that a school board could 
and should validly be required by a district court to re­
open a whole county school system rather than keep it 
closed to avoid desegregation, even though levying taxes 
and borrowing money might be necessary.

In view of the decisions above mentioned and the facts 
before the court, it appeared to this court that the un­
doubted difficulties and inconveniences and expense caused 
by transferring children in mid-year to schools they did 
not choose would have to be outweighed by the mandates 
of the Supreme Court and the Fourth Circuit Court of 
Appeals and that this court had and has a duty to require 
action now.

On February 5, 1970, therefore, a few days after the 
second Greenville opinion, this court entered its order for 
desegregation of the schools.

Supplemental Memorandum dated March 21, 1970



176a

The time table set in the February 5, 1970 order is pre­
cisely the time table suggested by Mr. Waggoner, the at­
torney for the defendants, in the record of the February 2, 
1970 hearing.

Paragraph 16 of the February 5, 1970 order reads:

“The duty imposed by the law and by this order is the 
desegregation of schools and the maintenance of that 
condition. The plans discussed in this order, whether 
prepared by Board and staff or by outside consultants, 
such as computer expert, Mr. John W. Weil, or Dr. 
John A. Finger, Jr., are illustrations of means or 
partial means to that end. The defendants are en­
couraged to use their full ‘know-how’ and resources 
to attain the results above described, and thus to 
achieve the constitutional end by any means at their 
disposal. The test is not the method or plan, but the 
results.”

The above summary is an outline only of the most sig­
nificant steps which have brought this case to its present 
position. Details of all the developments mentioned in this 
summary appear in previous orders and in the lengthy 
evidence.

Pursuant to the direction of the Circuit Court, this court 
has made and is filing contemporaneously herewith supple­
mental detailed findings of fact bearing on the transporta­
tion question.

This the 21st day of March, 1970.

/ s /  J am es B. M cM illan  
James B. McMillan 
United' States District Judge

Supplemental Memorandum dated March 21, 1970



177a

In the original order of April 23, 1969, and in the order 
of August 15, 1969, the projected time for completion of 
desegregation of the schools was set for September 1970. 
The court did not then consider and never has at any time 
considered that wholesale mid-year or mid-term transfers 
of pupils or teachers were desirable. Furthermore, it was 
contemplated by all parties that this time table would allow 
time for orderly development of plans as well as for appeal 
by all who might wish to appeal.

On October 29, 1960, in Alexander v. Holmes County, the 
Supreme Court ordered the immediate desegregation of 
schools involving many thousands of Mississippi school
children. In Carter v. West Feliciana Parish,------ U. S.
------ (January 14, 1970), the Supreme Court reversed the
Fifth Circuit Court of Appeals and set a February 1, 1970 
deadline to desegregate schools in Gulf Coast states in­
volving many thousands of children. In Nesbit v. States­
ville, 418 F.2d 1040, on December 2,1969, the Fourth Circuit 
read Alexander as follows:

“ The clear mandate of the Court is immediacy. Further 
delays will not be tolerated in this circuit.”

In Whittenburg v. Greenville County, South Carolina,------
F.2d-------(January 1970), the Fourth Circuit Court of Ap­
peals read Alexander to say that

“ . . . general reorganization of school systems is requi­
site now, that the requirement is not restricted to the 
school districts before the Supreme Court in Alexander, 
and that Courts of Appeals are not to authorize the 
postponement of general reorganization until Septem­
ber 1970.

O rder dated M arch 2 5 , 1 9 7 0

*  *  *



178a

“The District Court’s order shall not he stayed pending 
any appeal which may he taken to this court, . . . 
(Emphasis added.)

On January 26, 1970, on re-hearing, the Fourth Circuit 
Court of Appeals said:

“ The proper functioning of our judicial system requires 
that subordinate courts and public officials faithfully 
execute the orders and directions of the Supreme 
Court. . . .  no member of this court can read the 
opinions in Carter as leaving any room for the exer­
cise by this court in this case of any discretion in 
considering a request for postponement of the reassign­
ment of children and teachers until the opening of the 
next school year.”

The petition of Greenville for a stay of the order was 
again denied, and the Greenville schools were desegregated 
as of February 16, 1970.

The last Greenville decision was ten days old at the time 
of this court’s order of February 5, 1970. These were the 
mandates under which it was ordered that the Charlotte- 
Mecklenburg schools should be desegregated before the 
end of the spring term, and that the mandate should not 
be stayed pending appeal.

Since that time, several suits have been filed in state 
court seeking to prevent implementation of the February 
5, 1970 order, and decision by the three-judge court now 
considering the constitutionality of the “anti-bussing” law, 
North Carolina General Statutes, §115-176.1, does not ap­
pear likely before April 1, 1970. The appeal of the de­
fendants in the Swann case to the Fourth Circuit Court 
of Appeals is not scheduled to be heard until April 9,

Order dated March 25, 1970



179a

1970, and there is no way to predict when a decision on 
that appeal will be rendered. There is also no way to pre­
dict when a final decision by the Supreme Court will be 
made on any of these issues, nor what the final decision 
may be.

Furthermore, notwithstanding the Holmes County, 
Greenville, Carter and Statesville decisions, the Fourth 
Circuit Court of Appeals has now rendered a stay as to 
certain portions of the February 5, 1970 order, and a peti­
tion to vacate that stay has been denied by the Supreme 
Court. The Fourth Circuit Court of Appeals and the Su­
preme Court have now demonstrated an interest in the 
cost and inconvenience and disruption that the order might 
produce—factors which, though bussing was not specifically 
mentioned, appear not to have been of particular interest 
to either the Fourth Circuit Court or the Supreme Court 
when Holmes County, Carter, Greenville and Statesville 
were decided.

The only reason this court entered an order requiring 
mid-semester transfer of children was its belief that the 
language of the Supreme Court and the Fourth Circuit 
above quoted in this order, given its reasonable interpre­
tation, required district courts to direct desegregation be­
fore the end of this school year.

The urgency of “desegregation now” has now been in 
part dispelled by the same courts which ordered it, and 
the court still holds its original view that major desegre­
gation moves should not take place during school terms 
nor piecemeal if they can be avoided.

Thereforefore, i t  i s  o r d e r e d , that the time table for 
implementation of this court’s order of February 5, 1970 
be, and it is hereby modified so that the implementation 
of the various parts of the desegregation order will not be

Order dated March 25, 1970



180a

required until September 1, 1970, subject, however, to any 
different decisions that may be rendered by appellate courts 
and with the proviso that the school board may if they wish 
proceed upon any earlier dates they may elect with any 
part or parts of the plan.

Order dated March 25, 1970

This is the 25th day of March, 1970.

/ s /  J ames B. M cM illan  
James B. McMillan 
United States District Judge



181a

On March 26, 1970, the defendant school board filed 
“ Objectio ns  and  E xceptions to S u pple m en tar y  F indings 
of F act of M arch  21, 1970, and  M otion  for M odification 
and  Clarification  T hereof.”  The court has reviewed the 
questions raised in that document and makes further find­
ings of fact with reference to certain of its numbered para­
graphs as follows:

Ufl 1, 4, 16, 40. The annual school bus cost per pupil 
transported, including everything except the original cost 
of the bus, parking arrangements and certain local adminis­
trative costs, for the 1968-69 year, was $19.92. The state 
reimburses the Charlotte-Mecklenburg school system ap­
proximately this $19.92 per pupil. The April 23, 1969, and 
February 5, 1970, findings of fact estimated the original 
cost and periodic replacement of the busses themselves at 
$18 to $20 per pupil per year, which, added to the $19.92, 
resulted in the estimate of $40 as the total annual per 
pupil transportation cost. That estimate assumed that the 
local schools would have to pay for periodic replacement 
of busses as well as for their original purchase. Since it 
is now clear from the deposition of D. J. Dark that the 
replacement of worn out or obsolescent busses is included 
in the $19.92 figure, the overall estimate of $40 per pupil 
per year is far too high. Instead of a continuing annual 
local per pupil cost of $18 or $20 to supply and replace 
busses, as the court originally understood, the local board 
will have to bear only administrative and parking expenses, 
plus the original, one-time purchase of the busses. This 
cuts the annual cost of bus transportation from nearly $40 
per pupil per year as originally estimated, to a figure closer

Further Findings o f  Fact on Matters Raised by the
M arch 2 6 , 1 9 7 0 , M otions o f  Defendants

dated A pril 3 , 1 9 7 0



182a

to $20 per pupil per year, and reduces the capital outlay 
required of the local board to the one-time purchase of 
about 138 busses at a cost of about $745,200.00, plus what­
ever may prove to be actually required in the way of addi­
tional parking facilities. Paragraphs 1, 4, 16 and 40 of 
the supplemental findings of fact are amended accordingly.

If If 2, 4, 11, 34. Although the evidence concerning the
5,000 children currently transported by City Coach Lines 
lacks clarity, the court agrees with the defendant that it 
should not be inferred that they are the source of payment 
for this transportation, and the court specifically corrects 
the previous finding so as to delete any reference to the 
source of payment for this transportation.

ff 21. The school hoard’s July 29, 1969 plan (see pages 
457-459 of the record on appeal) proposed the transfer 
and transportation of over 4,200 black children. The court 
on November 7, 1969, on the basis of the then evidence, 
found that the number actually transferred was 1,315. The 
affidavit of J. D. Morgan dated February 13, 1970 (para­
graph 4, page 770 of the record on appeal), indicated that 
the number of these students being transported was 738, 
requiring 13 busses. The findings of fact proposed by the 
defendants gave the number as “over 700.” The J. D. Mor­
gan affidavit of March 21, 1970, indicated that the number 
of busses was 30 instead of 13. From this conflicting evi­
dence the court concluded that “several hundred” was as 
accurate as could be found under the circumstances.

ff 33. Paragraph 33 is amended as requested by adding 
after the word “ schools” in the eleventh line of the para­
graph :

Further Findings of Fact on Matters Raised by the
March 26, 1970, Motions of Defendants

dated April 3, 1970



183a

“—and about 5,000 black children, grades one through 
four, to outlying white schools.”

34(f). The average straight line mileage between the 
elementary schools paired or grouped under the “cross­
bussing” plan is approximately 5% miles. The average 
bus trip mileage of about seven miles which was found in 
paragraph 34(f) was arrived at by the method which J. D. 
Morgan, the county school bus superintendent, testified 
he uses for such estimates—taking straight line mileage and 
adding 25%.

As to the other items in the document, the court has 
analyzed them carefully and finds that they do not justify 
any further changes in the facts previously found.

Further Findings of Fact on Matters Raised by the
March 26, 1970, Motions of Defendants

dated April 3, 1970

This the 3rd day of April, 1970.

/ s /  J ames B. M cM illan  
James B. McMillan
United States District Judge



184a

UNITED STATES COUET OF APPEALS 
P oe t h e  F o u rth  C ir cu it  

No. 14,517 
No. 14,518

O pinions o f  Court o f  Appeals
dated M ay 2 6 , 1 9 7 0

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

Appellees and Cross-Appellants,

—versus—

C h arlotte-M ecklen burg  B oard oe E d ucatio n , et al.,

Appellants and Cross-Appellees.

Appeals from the United States District Court for the 
Western District of North Carolina, at Charlotte. James B. 
McMillan, District Judge.

(Argued April 9, 1970. Decided May 26, 1970.)

Before H a y n sw o r th , Chief Judge, S obelofe, B orem an , 
B r y a n , W in t e r , and B u t zn e r , Circuit Judges, sitting en 
banc.*

B u t zn e r , Circuit Judge:
The Charlotte-Mecklenburg School District appealed 

from an order of the district court requiring the faculty 
and student body of every school in the system to be ra­
cially mixed. We approve the provisions of the order deal-

# Judge Craven disqualified himself for reasons stated in his 
separate opinion.



185a

mg with the faculties of all schools1 and the assignment of 
pupils to high schools and junior high schools, but we 
vacate the order and remand the case for further consid­
eration of the assignment of pupils attending elementary 
schools. We recognize, of course, that a change in the 
elementary schools may require some modification of the 
junior and senior high school plans, and our remand is 
not intended to preclude this.

I.

The Charlotte-Mecklenburg school system serves a pop­
ulation of over 600,000 people in a combined city and county 
area of 550 square miles. With 84,500 pupils attending 106 
schools, it ranks as the nation’s 43rd largest school district. 
In Swann v. Charlotte-Mecklenburg Bd. of Ed., 369 F.2d 
29 (4th Cir. 1966), we approved a desegregation plan based 
on geographic zoning with a free transfer provision. How­
ever, this plan did not eliminate the dual system of schools. 
The district court found that during the 1969-70 school 
year, some 16,000 black pupils, out of a total of 24,700, were 
attending 25 predominantly black schools, that faculties 
had not been integrated, and that other administrative 
practices, including a free transfer plan, tended to per­
petuate segregation.

Notwithstanding our 1965 approval of the school board’s 
plan, the district court properly held that the board was 
impermissibly operating a dual system of schools in the

1 The board’s plan provides: “ The faculties of all schools will be 
assigned so that the ratio of black teachers to white teachers in each 
school will be approximately the same as the ratio of black teachers 
to white teachers in the entire school system.” We have directed 
other school boards to desegregate their faculties in this manner. 
See Nesbit v. Statesville City Bd. of Ed., 418 F.2d 1040, 1042 (4th 
Cir. 1969); cf., United States v. Montgomery County Bd. of Ed., 
395 U.S. 225, 232 (1969).

Opinions of Court of Appeals dated May 26, 1970



186a

light of subsequent decisions of the Supreme Court, Green 
v. School Bd. of New Kent County, 391 U.S. 430, 435 (1968), 
Monroe v. Bd. of Comm’rs, 391 U.S. 450 (1968), and Alex­
ander v. Holmes County Bd. of Ed., 396 U.S. 19 (1969).

The district judge also found that residential patterns 
leading to segregation in the schools resulted in part from 
federal, state, and local governmental action. These find­
ings are supported by the evidence and we accept them 
under familiar principles of appellate review. The district 
judge pointed out that black residences are concentrated 
in the northwest quadrant of Charlotte as a result of both 
public and private action. North Carolina courts, in com­
mon with many courts elsewhere, enforced racial restric­
tive covenants on real property2 until Shelley v. Kraemer, 
334 U.S. 1 (1948) prohibited this discriminatory practice. 
Presently the city zoning ordinances differentiate between 
black and white residential areas. Zones for black areas 
permit dense occupancy, while most white areas are zoned 
for restricted land usage. The district judge also found that 
urban renewal projects, supported by heavy federal financ­
ing and the active participation of local government, con­
tributed to the city’s racially segregated housing patterns. 
The school board, for its part, located schools in black resi­
dential areas and fixed the size of the schools to accommo­
date the needs of immediate neighborhoods. Predominantly 
black schools were the inevitable result. The interplay of 
these policies on both residential and educational segrega­
tion previously has been recognized by this and other 
courts.3 The fact that similar forces operate in cities

Opinions of Court of Appeals dated May 26, 1970

2 E.g., Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895 (1946).
3 E.g., Henry v. Clarksdale Munic. Separate School Dist., 409 

F.2d 682, 689 (5th Cir.), cert, denied, 396 U.S. 940 (1969) ; United 
States v. School Dist. 151 of Cook County, 404 F.2d 1125, 1130



187a

throughout the nation under the mask of de facto segrega­
tion provides no justification for allowing us to ignore the 
part that government plays in creating segregated neigh­
borhood schools.

The disparity in the number of black and white pupils 
the Charlotte-Mecklenburg School Board busses to pre­
dominantly black and white schools illustrates how coupling 
residential patterns with the location of schools creates 
segregated schools. All pupils are eligible to ride school 
buses if they live farther than 1% miles from the schools 
to which they are assigned. Overall statistics show that 
about one-half of the pupils entitled to transportation ride 
school buses. Only 541 pupils were bussed in October 1969 
to predominantly black schools, which had a total enroll­
ment of over 17,000. In contrast, 8 schools located outside 
the black residential area have in the aggregate only 96 
students living within 1% miles. These schools have a total 
enrollment of about 12,184 pupils, of whom 5,349 ride school 
buses.

II.
The school board on its own initiative, or at the direc­

tion of the district court, undertook or proposed a number 
of reforms in an effort to create a unitary school system. 
It closed 7 schools and reassigned the pupils primarily to 
increase racial mixing. It drastically gerrymandered school

Opinions of Court of Appeals dated May 26, 1970

(7th Cir. 1968), aff’g 286 F. Supp. 786, 798 (N.D. 111. 1968); 
Brewer v. School Bd. of City of Norfolk, 397 F.2d 37, 41 (4th Cir. 
1968) ; Keyes v. School Dist. No. One, Denver, 303 F.Supp. 279
and 289 (D. Colo.), stay pending appeal granted,------  F .2 d ------
(10th Cir.), stay vacated, 396 U.S. 1215 (1969); Dowell v. School 
Bd. of Oklahoma City, 244 F.Supp. 971, 975 (W.D. Okla. 1965), 
aff’d, 375 F.2d 158 (10th Cir.), cert, denied, 387 U.S. 931 (1967). 
See generally Fiss, Racial Imbalance in the Public Schools: The 
Constitutional Concepts, 78 Harv. L. Rev. 564 (1965). But see, 
Deal v. Cincinnati Bd. of Ed., 419 F.2d 1387 (6th Cir. 1969).



188a

zones to promote desegregation. It created a single athletic 
league without distinction between white and black schools 
or athletes, and at its urging, black and white PTA councils 
were merged into a single organization. It eliminated a 
school bus system that operated on a racial basis, and 
established nondiscriminatory practices in other facets of 
the school system. It modified its free transfer plan to 
prevent resegregation, and it provided for integration of 
the faculty and administrative staff.

The district court, after a painstaking analysis of the 
boaid s proposals and the relevant authorities, disapproved 
the board’s final plan, primarily because it left ten schools 
neai ly all black. In reaching this decision, the district court 
held that the board must integrate the student body of every 
school to convert from a dual system of schools, which had 
been established by state action, to a unitary system.

The necessity of dealing with segregation that exists 
because governmental policies foster segregated neighbor­
hood schools is not confined to the Charlotte-Mecklenburg 
School District. Similar segregation occurs in many other 
cities throughout the nation, and constitutional principles 
dealing with it should be applied nationally. The solution 
is not free from difficulty. It is now well settled that 
school boards operating dual systems have an affirmative 
duty “to convert to a unitary school system in which racial 
discrimination would be eliminated root and branch.” Green 
v. School Bd. of New Kent County, 391 IT. S. 430, 437 
(1968). Recently the Supreme Court defined a unitary 
school system as one “within which no person is to be 
effectively excluded from any school because of race or 
color.” Alexander v. Holmes County Bd. of Ed., 396 IT. S. 
19, 20 (1969). This definition, as the Chief Justice noted in 
Northcross v. Board of Ed. of Memphis, 90 S.Ct. 891, 893

Opinions of Court of Appeals dated May 26, 1970



189a

(1970), leaves open practical problems, “including whether, 
as a constitutional matter, any particular racial balance 
must be achieved in the schools; to what extent school dis­
tricts and zones may or must be altered as a constitutional 
matter; to what extent transportation may or must be 
provided to achieve the ends sought by prior holdings of 
the Court.”

Several of these issues arise in this case. To resolve 
them, we hold: first, that not every school in a unitary 
school system need be integrated; second, nevertheless, 
school boards must use all reasonable means to integrate 
the schools in their jurisdiction; and third, if black resi­
dential areas are so large that not all schools can be inte­
grated by using reasonable means, school boards must take 
further steps to assure that pupils are not excluded from 
integrated schools on the basis of race. Special classes, 
functions, and programs on an integrated basis should be 
made available to pupils in the black schools. The board 
should freely allow majority to minority transfers and 
provide transportation by bus or common carrier so in­
dividual students can leave the black schools. And pupils 
who are assigned to black schools for a portion of their 
school careers should be assigned to integrated schools 
as they progress from one school to another.

We adopted the test of reasonableness—instead of one 
that calls for absolutes—because it has proved to be a re­
liable guide in other areas of the law. Furthermore, the 
standard of reason provides a test for unitary school sys­
tems that can be used in both rural and metropolitan dis­
tricts. All schools in towns, small cities, and rural areas 
generally can be integrated by pairing, zoning, clustering, 
or consolidating schools and transporting pupils. Some 
cities, in contrast, have black ghettos so large that integra­

Opinions of Court of Appeals dated May 26, 1970



190a

tion of every school is an improbable, if not an unattain­
able, goal. Nevertheless, if a school board makes every 
reasonable effort to integrate the pupils under its control, 
an intractable remnant of segregation, we believe, should 
not void an otherwise exemplary plan for the creation of 
a unitary school system. Ellis v. Board of Public Instruc.
of Orange County, No. 29124, Feb. 17, 1970 ------F .2d-------
(5th Cir.)

III.
The school board’s plan proposes that pupils will be 

assigned to the system’s ten high schools according to 
geographic zones. A typical zone is generally fan shaped 
and extends from the center of the city to the suburban 
and rural areas of the county. In this manner the board 
was able to integrate nine of the high schools with a per­
centage of black students ranging from 17% to 36%. The 
projected black attendance at the tenth school, Indepen­
dence, which has a maximum of 1400 pupils, is 2%.

The court approved the board’s high school plan with 
one modification. It required that an additional 300 pupils 
should be transported from the black residential area of 
the city to Independence School.

The school board proposed to rezone the 21 junior high 
school areas so that black attendance would range from 
0% to 90% with only one school in excess of 38%. This 
school, Piedmont, in the heart of the black residential area, 
has an enrollment of 840 pupils, 90% of whom are black. 
The district court disapproved the board’s plan because 
it maintained Piedmont as a predominantly black school. 
The court gave the board four options to desegregate all 
the junior high schools: (1) rezoning; (2) two-way trans­
portation of pupils between Piedmont and white schools; 
(3) closing Piedmont and reassigning its pupils and (4)

Opinions of Court of Appeals dated May 26, 1970



191a

adopting a plan proposed by Dr. John A. Finger, Jr., a 
consultant appointed by the court, which combined zoning 
with satellite districts. The board, expressing a preference 
for its own plan, reluctantly adopted the plan proposed 
by the court’s consultant.

Approximately 31,000 white and 13,000 black pupils 
are enrolled in 76 elementary schools. The board’s plan 
for desegregating these schools is based entirely upon geo­
graphic zoning. Its proposal left more than half the black 
elementary pupils in nine schools that remained 86% to 
100% black, and assigned about half of the white elemen­
tary pupils to schools that are 86% to 100% white. In 
place of the board’s plan, the court approved a plan based 
on zoning, pairing, and grouping, devised by Dr. Finger, 
that resulted in student bodies that ranged from 9% to 
38% black.

The court estimated that the overall plan which it ap­
proved would require this additional transportation:

Opinions of Court of Appeals dated Map 26, 1970

No. of No. of Operating
pupils buses costs

Senior High 1,500 20 $ 30,000
Junior High 2,500 28 $ 50,000
Elementary 9,300 90 $186,000

TOTAL 13,300 138 $266,000

In addition, the court found that a new bus cost about 
$5,400, making a total outlay for equipment of $745,200. 
The total expenditure for the first year would be about 
$ 1,011,200.

The school board computed the additional transportation 
requirements under the court approved plan to be:



192a

Opinions of Court of Appeals dated May 26, 1970

No. of No. of Operating
pupils buses costs

Senior High 2,497 69 $ 96,000
Junior High 4,359 84 $116,800
Elementary 12,429 269 $374,000

TOTAL 19,285 422 $586,000

In addition to the annual operating cost, the school board 
projected the following expenditures:

Cost of buses $2,369,100
Cost of parking areas 284,800
Cost of additional personnel 166,200

Based on these figures, the school board computed the total 
expenditures for the first year would be $3,406,700 under 
the court approved plan.4

4 The school board computed transportation requirements under 
the plan it submitted to be:

No. of No. of Operating
pupils buses eost

Senior High 1,202 30 $ 41,700
Junior High 1,388 33 $ 45,900
Elementary 2,345 41 $ 57,000

TOTAL 4,935 104 $144,600
The board estimated that the breakdown of costs for 
of operation under its plan would be:

the first year

Cost of buses $589,900
Cost of parking areas 56,200
Operating expenses of $144,600
Plus depreciation allowance of 31,000

175,600
Cost of additional personnel 43,000

The estimated total first-year costs are $864,700.



193a

Both the findings of the district court and the evidence 
submitted by the board are based on estimates that rest 
on many variables. Past practice has shown that a large 
percentage of students eligible for bus transportation pre­
fer to provide their own transportation. However, it is 
difficult to accurately predict how many eligible students 
will accept transportation on the new routes and schedules. 
The number of students that a bus can carry each day 
depends in part on the number of trips the bus can make. 
Scheduling two trips for a bus generally reduces costs. But 
student drivers may not be able to spend the time required 
for two trips, so that adult drivers will have to be hired 
at substantially higher salaries. It is difficult to accurately 
forecast how traffic delays will affect the time needed for 
each trip, for large numbers of school buses themselves 
generate traffic problems that only experience can measure.

The board based its projections on each 54-passenger bus 
carrying about 40 high school pupils or 54 junior high and 
elementary pupils for one roundtrip a day. Using this 
formula, it arrived at a need of 422 additional buses for 
transporting 19,285 additional pupils. This appears to be a 
less efficient operation than the present system which trans­
ports 23,600 pupils with 280 buses, but the board’s witnesses 
suggest that prospects of heavier traffic justify the dif­
ference. The board also envisioned parking that seems to 
be more elaborate than that currently used at some schools.

In making its findings, the district court applied factors 
derived from present bus operation, such as the annual 
operating cost per student, the average number of trips 
each bus makes, the capacity of the buses—including per­
missible overloads, and the percentage of eligible pupils 
who use other forms of transportation. The district court 
also found no need for expensive parking facilities or for

Opinions of Court of Appeals dated May 26, 1970



194a

additional personnel whose costs could not he absorbed by 
the amount allocated for operating expenses. While we 
recognize that no estimate—whether submitted by the board 
or made by the court—can he absolutely correct, we accept 
as not clearly erroneous the findings of the district court.

Opposition to the assignment of pupils under both the 
board’s plan and the plan the court approved centered on 
bussing, which numbers among its critics both black and 
white parents. This criticism, however, cannot justify the 
maintenance of a dual system of schools. Cooper v. Aaron, 
358 IT.S. 1 (1958). Bussing is neither new nor unusual. It 
has been used for years to transport pupils to consolidated 
schools in both racially dual and unitary school systems. 
Figures compiled by the National Education Association 
show that nationally the number of pupils bussed increased 
from 12 million in the 1958-59 school year to 17 million a 
decade later. In North Carolina 54.9% of all pupils are 
bussed. There the average daily roundtrip is 24 miles, and 
the annual cost is over $14,000,000. The Charlotte-Mecklen- 
burg School District presently busses about 23,600 pupils 
and another 5,000 ride common carriers.

Bussing is a permissible tool for achieving integration, 
but it is not a panacea. In determining who should be 
bussed and where they should be bussed, a school board 
should take into consideration the age of the pupils, the 
distance and time required for transportation, the effect 
on traffic, and the cost in relation to the board’s resources. 
The board should view bussing for integration in the light 
that it views bussing for other legitimate improvements, 
such as school consolidation and the location of new schools. 
In short, the board should draw on its experience with 
bussing in general—the benefits and the defects—so that it 
may intelligently plan the part that bussing will play in a 
unitary school system.

Opinions of Court of Appeals dated May 26, 1970



195a

Viewing the plan the district court approved for junior 
and senior high schools against these principles and the 
background of national, state, and local transportation pol­
icies, we conclude that it provides a reasonable way of 
elminating all segregation in these schools. The estimated 
increase in the number of junior and senior high school 
students who must he bussed is about 17% of all pupils now 
being bussed. The additional pupils are in the upper grades 
and for the most part they will be going to schools already 
served by busses from other sections of the district. More­
over, the routes they must travel do not vary appreciably 
in length from the average route of the system’s buses. 
The transportation of 300 high school students from the 
black residential area to suburban Independence School will 
tend to stabilize the system by eliminating an almost totally 
white school in a zone to which other whites might move 
with consequent “tipping” or resegregation of other 
schools.5

We find no merit in other criticism of the plan for junior 
and senior high schools. The use of satellite school zones6

Opinions of Court of Appeals dated, May 26, 1970

5 These 300 students will be bussed a straight-line distance of 
some 10 miles. The actual bus routes will be somewhat longer, 
depending upon the route chosen. A reasonable estimate of the 
bus route distance is 12 to 13 miles. The principal’s monthly bus 
reports for Independence High School for the month from Janu­
ary 10, 1970 to February 10, 1970 shows the average one-way 
length of a bus route at independence is presently 16.7 miles for 
the first trip. Buses that make two trips usually have a shorter 
second trip. The average one-way bus route, including both first 
and second trips, is 11.7 miles. Thus the distance the 300 pupils 
will have to be bussed is nearly the same as the average one-way 
bus route of the students presently attending Independence, and 
it is substantially shorter than the system’s average one-way bus 
trip of 17 miles.

6 Satellite school zones are non-contiguous geographical zones. 
Typically, areas in the black core of the city are coupled—but not 
geographically linked—with an area in white suburbia.



196a

as a means of achieving desegregation is not improper. Dis­
trict Courts have been directed to shape remedies that are 
characterized by the “practical flexibility” that is a hallmark 
of equity. See Brown v. Board of Ed., 349 U.S. 294, 300 
(1955). Similarly, the pairing and clustering of schools has 
been approved. Green v. County School Bd. of New Kent 
County, 391 U.S. 430, 442 n. 6 (1968); Hall v. St. Helena 
Parish School Bd., 417 F.2d 801, 809 (5th Cir.), cert, 
denied, 396 U.S. 904 (1969).

The school board also asserts that §§ 401(b) and 407(a) 
(2) of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000c(b) 
and -6(a)(2)] forbid the bussing ordered by the district 
court.7 But this argument misreads the legislative history 
of the statute. Those provisions are not limitations on the 
power of school boards or courts to remedy unconstitu­
tional segregation. They were designed to remove any 
implication that the Civil Rights Act conferred new juris­
diction on courts to deal with the question of whether school 
boards were obligated to overcome de facto segregation. 
See generally, United States v. School District 151, 404

7 Title 42 U.S.C. § 2000c (b) provides that as used in the sub- 
chapter on Public Education of the Civil Rights Act of 1964:

“  ‘Desegregation’ means the assignment of students to pub- 
lie schools and within such schools without regard to their race, 
color, religion, or national origin, but ‘desegregation’ shall not 
mean the assignment of students to public schools in order to 
overcome racial imbalance.”

Title 42 § 2000c-6(a) (2) states in part:
“ [PJrovided that nothing herein shall empower any official or 
court of the United States to issue any order seeking to achieve 
a racial balance in any school by requiring the transportation 
of pupils or students from one school to another or one school 
district to another in order to achieve such racial balance, or 
otherwise enlarge the existing power of the court to insure 
compliance with constitutional standards.”

Opinions of Court of Appeals dated May 26, 1970



197a

F.2d 1125, 1130 (7th Cir. 1968); United States v. Jefferson 
County Board of Ed., 372 F.2d 836, 880 (5th Cir. 1966), 
aff’d on rehearing en banc 380 F.2d 385 (5th Cir.), cert, 
denied, sub nom. Caddo Parish School Bd. v. United States, 
389 U.S. 840 (1967); Keyes v. School Dist. No. One, Denver, 
303 F.Supp. 289, 298 (D. Colo.), stay pending appeal
granted,------F.2d-------  (10th Cir.); stay vacated, 396 U.S.
1215 (1969). Nor does North Carolina’s anti-bussing law 
present an obstacle to the plan, for those provisions of the 
statute in conflict with the plan have been declared uncon­
stitutional. Swann v. Charlotte-Mecklenburg Bd. of Ed., 
------F. Supp.-------  (W.D.N.C. 1970).8

The district court properly disapproved the school 
board’s elementary school proposal because it left about 
one-half of both the black and white elementary pupils in 
schools that were nearly completely segregated. Part of 
the difficulty concerning the elementary schools results 
from the board’s refusal to accept the district court’s sug­
gestion that it control experts from the Department of 
Health, Education, and Welfare. The consultants that the 
board employed were undoubtedly competent, but the board 
limited their choice of remedies by maintaining each school’s 
grade structure. This, in effect, restricted the means of 
overcoming segregation to only geographical zoning, and 
as a further restriction the board insisted on contiguous 
zones. The board rejected such legitimate techniques as

8 The unconstitutional provisions are:
“No student shall be assigned or compelled to attend any school 
on account of race, creed, color or national origin, or for the 
purpose of creating a balance or ratio of race, religion or 
national origins. Involuntary bussing of students in contra­
vention of this article is prohibited, and public funds shall 
not be used for any such bussing.” N.C. Gen. Stat. § 115-176.1 
(Supp. 1969).

Opinions of Court of Appeals dated May 26, 1970



198a

pairing, grouping, clustering, and satellite zoning. More­
over, the board sought to impose a ratio in each school of 
not less than 60% white students. While a 60%-40% ratio 
of white to black pupils might be desirable under some cir­
cumstances, rigid adherence to this formula in every school 
should not be allowed to defeat integration.

On the other hand, the Finger plan, which the district 
court approved, will require transporting 9,300 pupils in 
90 additional buses. The greatest portion of the proposed 
transportation involves cross-bussing to paired schools— 
that is, black pupils in grades one through four would be 
carried to predominantly white schools, and white pupils 
in the fifth and sixth grades would be transported to the 
black schools. The average daily roundtrip approximates 
15 miles through central city and suburban traffic.

The additional elementary pupils who must be bussed 
represent an increase of 39% over all pupils presently 
being bussed, and their transportation will require an in­
crease of about 32% in the present fleet of buses. When 
the additional bussing for elementary pupils is coupled 
with the additional requirements for junior and senior high 
schools, which we have approved, the total percentages of 
increase are: pupils, 56%, and buses, 49%. The board, we 
believe, should not be required to undertake such extensive 
additional bussing to discharge its obligation to create a 
unitary school system.

IV.

Both parties oppose a remand. Each side is adamant 
that its position is correct—the school board seeks total 
approval of its plan and the plaintiffs insist on implemen­
tation of the Finger plan. We are favorably impressed, 
however, by the suggestion of the United States, which at

Opinions of Court of Appeals dated May 26, 1970



199a

our invitation tiled a brief as amicus curiae, that the school 
board should consider alternative plans, particularly for 
the elementary schools. We, therefore, will vacate the 
judgment of the district court and remand the case for 
reconsideration of the assignment of pupils in the ele­
mentary schools, and for adjustments, if any, that this may 
require in plans for the junior and senior high schools.

On remand, we suggest that the district court should di­
rect the school board to consult experts from the Office of 
Education of the Department of Health, Education, and 
Welfare, and to explore every method of desegregation, 
including rezoning with or without satellites, pairing, group­
ing, and school consolidation. Undoubtedly some trans­
portation will be necessary to supplement these techniques. 
Indeed, the school board’s plan proposed transporting 
2,300 elementary pupils, and our remand should not be 
interpreted to prohibit all bussing. Furthermore, in de­
vising a new plan, the board should not perpetuate segre­
gation by rigid adherence to the 60% white-40% black 
racial ratio it favors.

If, despite all reasonable efforts to integrate every school, 
some remain segregated because of residential patterns, 
the school board must take further steps along the lines 
we previously mentioned, including a majority to minority 
transfer plan,9 to assure that no pupil is excluded from an 
integrated school on the basis of race.

Opinions of Court of Appeals dated May 26, 1970

9 The board’s plan provides:
“Any black student will be permitted to transfer only if the 
school to which he is originally assigned has more than 30 
per cent of his race and if the school he is requesting to at­
tend has less than 30 per cent of his race and has available 
space. Any white student will be permitted to transfer only 
if the school to which he is originally assigned has more than 
70 per cent of his race and if the school he is requesting to



200a

Alexander v. Holmes Comity Bd. of Ed., 396 U.S. 19 
(1969), and Carter v. West Feliciana School Bd., 396 U.S. 
290 (1970), emphasize that school boards must forthwith 
convert from dual to unitary systems. In Nesbit v. States­
ville City Bd. of Ed., 418 F.2d 1040 (4th Cir. 1969), and
Whittenberg v. School Dist. of Greenville County, ____
F.2d ------ (4th Cir. 1970), we reiterated that immediate
reform is imperative. We adhere to these principles, and 
district courts in this circuit should not consider the stays 
which were allowed because of the exceptional nature of 
this case to be precedent for departing from the directions 
stated in Alexander, Carter, Nesbit, and Whittenberg.

Prompt action is also essential for the solution of the 
remaining difficulties in this case. The school board should 
immediately consult with experts from HEW and file its 
new plan by June 30, 1970. The plaintiffs should file their 
exceptions, if any, within 7 days, and the district court 
should promptly conduct all necessary hearings so that 
the plan may take effect with the opening of school next 
fall. Since time is pressing, the district court’s order ap­
proving a new plan shall remain in full force and effect 
unless it is modified by an order of this court. After a plan 
has been approved, the district court may hear additional 
objections or proposed amendments, but the parties shall 
comply with the approved plan in all respects while the

Opinions of Court of Appeals dated May 26, 1970

attend has less than 70 per cent of his race and has available 
space.”

This clause, which was designed to prevent tipping or resegre­
gation, would be suitable if all schools in the system were inte­
grated. But since the board envisions some elementary schools 
will remain nearly all black, it unduly restricts the schools to 
which pupils in these schools can transfer. It should be amended 
to allow these elementary pupils to transfer to any school in 
which their race is a minority if space is available.



201a

district court considers the suggested modifications. Cf. 
Nesbit v. Statesville City Bd. of Ed., 418 F.2d 1040, 1043 
(4th Cir. 1969).

Finally, we approve the district court’s inclusion of Dr. 
Finger’s consultant fee in the costs taxed against the 
board. See In the Matter of Peterson, 253 U.S. 300, 312 
(1920). We caution, however, that when a court needs an 
expert, it should avoid appointing a person who has ap­
peared as a witness for one of the parties. But the evi­
dence discloses that Dr. Finger was well qualified, and his 
dual role did not cause him to be faithless to the trust the 
court imposed on him. Therefore, the error, if any, in his 
selection, was harmless.

We find no merit in the other objections raised by the 
appellants or in the appellees’ motion to dismiss the appeal. 
The judgment of the district court is vacated, and the case 
is remanded for further proceedings consistent with this 
opinion.
S o b e l o f f , Circuit Judge, with whom W i n t e r , Circuit Judge, 
joins, concurring in part and dissenting in part:

Insofar as the court today affirms the District Court’s 
order in respect to the senior and junior high schools, 
I concur. I dissent from the failure to affirm the portion 
of the order pertaining to the elementary schools.

I

T he  B asic L aw  and th e  P articular  F acts

All uncertainty about the constitutional mandate of 
Brown v. Board of Education, 347 U.S. 483 (1954) and 
349 U.S. 294 (1955), was put to rest when in Green v. 
County School Board of New Kent County the Supreme 
Court spelled out a school board’s “affirmative duty to take

Opinions of Court of Appeals dated May 26, 1970



202a

whatever steps might be necessary to convert to a unitary 
system in which racial discrimination would be eliminated 
root and branch,” 391 U.S. 430, 437-438 (1968). “Disestab- 
lish[ment of] state-imposed segregation” (at 439) entailed 
“ steps which promise realistically to convert promptly to 
a system without a ‘white’ school and a ‘negro’ school, but 
just schools” (at 442). If there could still be doubts they 
were answered this past year. In Alexander v. Holmes 
County Board of Education, the Court held that “ [u]nder 
explicit holdings of this Court the obligation of every 
school district is to terminate dual school systems at once 
and to operate now and hereafter only unitary schools,” 
396 U.S. 19, 20 (1969). The command was once more 
reaffirmed in Carter v. West Feliciana School Board, 396 
U.S. 290 (1970), requiring “relief that will at once extirpate 
any lingering vestiges of a constitutionally prohibited dual 
school system.”  (Harlan, J., concurring at 292).

We face in this case a school district divided along 
racial lines. This is not a fortuity. It is the result, as the 
majority has recognized, of government fostered residen­
tial patterns, school planning, placement, and, as the 
District Court found, gerrymandering. These factors have 
interacted on each other so that by this date the black 
and white populations, in school and at home, are virtually 
entirely separate.

As of November 7, 1969, out of 106 schools in the system, 
57 were racially identifiable as white, 25 were racially 
identifiable as black.1 Of these, nine were all white schools 
and eleven all black. Of 24,714 black students in the system,
16,000 were in entirely or predominantly black schools.

Opinions of Court of Appeals dated May 26, 1970

1 In the entire system, 71% of the pupils are white, 29% of the 
pupils are black. The District Judge deemed a school having 86% 
or greater white population identifiable as white, one with 56% or 
greater black population identifiable as black.



203a

There are 76 elementary schools with over 44,000 pupils. 
In November 1969, 43 were identifiable as white, 16 as 
black, with 13 of the latter 98% or more black, and none 
less than 65%. For the future the Board proposes little 
improvement. There would still be 25 identifiably white 
elementary schools and approximately half of the white 
elementary students would attend schools 86 to 100% 
white. Nine schools would remain 83 to 100% black, serv­
ing 6,432 students or over half the black elementary pupils.

To call either the past or the proposed distribution a 
“unitary system” would be to embrace an illusion.2 And 
the majority does not contend that the system is unitary, 
for it holds that “ the district court properly disapproved 
the school board’s elementary school proposal because it 
left about one-half of both the black and white elementary 
pupils in schools that were nearly completely segregated.” 
The Board’s duty then is plain and unarguable: to convert 
to a unitary system. The duty is absolute. It is not to be 
tempered or watered down. It must be done, and done 
now.

Opinions of Court of Appeals dated May 26, 1970

2 In its application to us for a stay pending appeal, counsel for 
the School Board relied heavily on Northcross v. Board of Educa­
tion of Memphis, — —F.2d ------  (6th Cir. 1970), as a judicial
ruling that school assignments based on residence are constitu­
tionally immune. The defendant tendered us a statistical compari­
son of pupil enrollment by school with pupil population by at­
tendance area for the Memphis school system.

Since then the Supreme Court in Northcross has ruled that the 
Court of Appeals erred insofar as it held that the Memphis board 
“ is not now operating a ‘dual school system’ * * * .” 38 L.W. 4219.



204a

II

T h e  C oubt-O rdered P la n

A. The Necessity of the Court-Ordered Plan

The plan ordered by the District Court works. It does 
the job of desegregating the schools completely. This 
“places a heavy burden upon the board to explain its pre­
ference for an apparently less effective method.” Green, 
supra at 439.

The most significant fact about the District Court’s 
plan is that it or one like it—is the only one that can 
work. Obviously, when the black students are all on one 
side of town, the whites on the other, only transportation 
will bring them together. The District Judge is quite 
explicit:

Both Dr. Finger and the school board staff appear 
to have agreed, and the court finds as a fact that for 
the present at least, there is no way to desegregate 
the all-black schools in Northwest Charlotte without 
providing (and continuing to provide) bus or other 
transportation for thousands of children. All plans 
and all variations of plans considered for this purpose 
lead in one fashion or another to that conclusion.

The point has been perceived by the counsel for the Board, 
who have candily informed us that if the job must be done 
then the Finger plan is the way to do it.

The only suggestion that there is a possible alternative 
middle course came from the United States, participating 
as amicus curiae. Its brief was prefaced by the following 
revealing confession:

Opinions of Court of Appeals dated May 26, 1970



205a

We understand that the record in the case is 
voluminous, and we would note at the outset that we 
have been unable to analyze the record as a whole. 
Although we have carefully examined the district 
court’s various opinions and orders, the school board’s 
plan, and those pleadings readily available to us, we 
feel that we are not conversant with all of the factual 
considerations which may prove determinative of this 
appeal. Accordingly, we here attempt, not to deal 
extensively with factual matters, but rather to set 
forth some legal considerations which may be helpful 
to the Court.

No withstanding this disclaimer, the Government went on 
to imply in oral argument—and has apparently impressed 
on this court—that HEW could do better. No concrete 
solution is suggested but the Government does advert to 
the possibility of pairing and grouping of schools. Two 
points stand out. First, pairing and grouping are pre­
cisely what the Finger plan, adopted by the District Court, 
does. Second, in the circumstances of this case, these 
methods necessarily entail bussing.

I am not “favorably impressed”  by the Government’s 
performance. Its vague and noncommital representations 
do little but obscure the real issues, introduce uncertainty 
and fail to meet the “heavy burden” necessary to over­
turn the District Court’s effective plan.3

3 A federal judge is not required to consult with the Department 
of Health, Education and Welfare on legal issues. What is the 
constitutional objective of a plan, and whether a unitary system 
has been or will be achieved, are questions for the court. HEW’s 
interpretation of the constitutional command does not bind the 
courts.

[WJhile administrative interpretation may lend a persuasive 
gloss to a statute, the definition of constitutional standards

Opinions of Court of Appeals dated May 26, 1970



206a

B. The Feasibility of the Plan

Of course it goes without saying that school boards 
are not obligated to do the impossible. Federal courts 
do not joust at windmills. Thus it is proper to ask whether 
a plan is feasible, whether it can be accomplished. There 
is no genuine dispute on this point. The plan is simple 
and quite efficient. A bus will make one pickup in the 
vicinity of the children’s residences, say in the white 
residential area. It then will make an express trip to the 
inner-city school. Because of the non-stop feature, time 
can be considerably shortened and a bus could make a 
return trip to pick up black students in the inner city and 
to convey them to the outlying school. There is no evidence 
of insurmountable traffic problems due to the increased

Opinions of Court of Appeals dated May 26, 1970

controlling the actions of states and their subdivisions is 
peculiarly a judicial function.

Bowman v. County School Board of Charles City County, 382 F.2d 
326 (1967).

Although the definition of goals is for the court, HEW  may be 
able to provide technical assistance in overcoming the logistical 
impediments to the desegregation of a school system. Thus it was 
quite understandable that at the outset of this case the District 
Court invited the Board to consult with HEW. Desegregation of 
this large educational system was likely to be a complex and 
administratively difficult task, in which the expertise of the fed­
eral agency might be of help. However, after a substantial period 
of time and the beginning of a new school year, it became clear 
that the Board had no intention of devising a meaningful plan, 
much less seeking advice on how to do so. At that point (Decem­
ber 1969) with the need for speed in mind, the Judge appointed 
an expert already familiar with the school system to work with 
the school staff in developing a plan.

Whether to utilize the assistance of HEW is ordinarily up to 
the district judge. Consultation in formulating the mechanics of a 
plan is not obligatory. The method used by the Judge in this 
case was certainly sufficient. Moreover, now that a plan has been 
created and it appears that there are no real alternatives, a re­
mand for HEW ’s advice seems an exercise in futility.



207a

bussing.4 5 Indeed, straight line bussing promises to be 
quicker. The present average one-way trip is over 15 miles 
and takes one hour and fourteen minutes; under the plan 
the average one-way trip for elementary students will be 
less than seven miles and 35 minutes. The cost of all of the 
additional bussing will be less than one week’s operating 
budget.6

C. The Standard of Review

In Brown II, the Supreme Court charged the district 
courts with the enforcement of the dictates of Brown I.

4 The only indication I have encountered that a serious traffic 
problem will be occasioned by the additional bussing is found in 
an affidavit by the City Director of Traffic Engineering. His 
statement is based on the exaggerated bus estimate prepared by 
the Board and rejected by the District Court. See note 5, infra. 
Moreover, he appears to have relied to a, large extent on the 
erroneous assumption that under the plan busses would pick up 
and discharge passengers along busy thoroughfares, thus causing 
“stop-and-go” traffic of slow moving school busses in congested 
traffic.”

A  later affidavit of the same official, filed at the request of the 
District Court, affords more substantial data. It reveals that the 
total estimated number of automobile trips per day in Charlotte 
and Mecklenburg County (not including internal truck trips) is 
869,604. That the 138 additional busses would gravely aggravate 
the congestion is dubious, to say the least.

5 The District Judge rejected the Board’s inflated claims, and 
found that altogether the Finger plan would bus 13,300 new stu­
dents in 138 additional busses. The Board had estimated that
19,285 additional pupils would have to be transported, requiring 
422 additional busses. This estimate is disproportionate on its 
face, for presently 23,600 pupils are transported in 280 busses. 
As indicated above, the direct bus routes envisioned by the Finger 
plan should accomplish increased, not diminished, efficiency. The 
court below, after close analysis, discounted the Board’s estimate 
for other reasons as well, including the “very short measurements” 
used by the Board in determining who would have to be bussed, 
the failure of the Board to account for round-trips, staggering of 
opening and closing hours, and overloads.

Opinions of Court of Appeals dated May 26, 1970



208a

The lower courts were to have “a practical flexibility in 
shaping * * # remedies.” 349 U.S. at 300. Thus, in sub­
suming these cases under traditional equity principles, 
the Supreme Court brought the desegregation decree 
within the rule that to be overturned it “must [be] demon­
strate [d] that there was no reasonable basis for the 
District Judge’s decision.” United States v. W. T. Grant 
Co., 345 U.S. 629, 634 (1953). This court has paid homage 
to this maxim of appellate review when, in the past, a 
district Judge has ordered less than comprehensive relief. 
Bradley v. School Board of the City of Richmond, 345 F.2d 
310, 320 (1965), rev’d, 382 U.S. 103 (1965). What is called 
for here is similar deference to an order that would finally 
inter the dual system and not preserve a nettlesome 
residue. As the Supreme Court made clear in Green, 
supra, those who would challenge an effective course of 
action bear a “heavy burden.” The Finger plan is a re­
markably economical scheme when viewed in the light of 
what it accomplishes. There has been no showing that it 
can be improved or replaced by better or more palatable 
means. It should, then, be sustained.

I l l

O bjectio n s  R aised A gainst th e  C ourt-O rdered P lan  

A. The “Illegal” Objective of the Plan

My Brother Bryan expresses concern about the plan, 
regardless of cost, because it undertakes, in his view, an 
illegal objective: “achieving racial balance.” Whatever 
might be said for this view abstractly or in another context, 
it is not pertinent here. We are confronted in this case 
with no question of bussing for mere balance unrelated to

Opinions of Court of Appeals dated May 26, 1970



209a

a mandatory constitutional goal. What the District Court 
has ordered is compliance with the constitutional impera­
tive to disestablish the existing segregation. Unless we 
are to palter with words, desegregation necessarily entails 
integration, that is to say integration in some substantial 
degree. The dictum to the contrary in Briggs v. Elliott, 
132 F. Supp. 776 (E.D.S.C. 1955), was rejected by necessary 
implication by the Supreme Court in Green, supra, and 
explicitly by this court in Walker v. County School Board 
of Brunswick Co., 413 F.2d 53, 54 n.2 (4th Cir. 1969).

As my Brother Winter shows, there is no more suitable 
way of achieving this task than by setting, at least initially, 
a ratio roughly approximating that of the racial population 
in the school system. The District Judge adopted this ad 
hoc measurement as a starting guide, expressed a willing­
ness to accept a degree of modification,6 and departed from 
it where circumstances required.

B. The “ Unreasonableness” of the Plan

The majority does not quarrel with the plan’s objective, 
nor, accepting the findings of the District Court, does it 
really dispute that the plan can be achieved. Bather, we 
are told, the plan is an unreasonable burden.

Opinions of Court of Appeals dated May 26, 1970

The District Judge wrote in his December 1 order that
Fixed ratios of pupils in particular schools will not be set. 

I f  the board in one of its three tries had presented a plan 
for desegregation, the court would have sought ways to ap­
prove variations in pupil ratios. In default of any such plan 
from the school board, the court will start with the thought, 
originally advanced in the order of April 23, that efforts should 
be made to reach a 71-29 ratio in the various schools so that 
there will be no basis for contending that one school is racially 
different from the others, but to understand that variations 
from that norm may be unavoidable.



210a

This notion must be emphatically rejected. At bottom 
it is no more than an abstract, unexplicated judgment—a 
conclusion of the majority that, all things considered, de­
segregation of this school system is not worth the price. 
This is a conclusion neither we nor school boards are per­
mitted to make.

In making policy decisions that are not constitutionally 
dictated, state authorities are free to decide in their dis­
cretion that a proposed measure is worth the cost involved 
or that the cost is unreasonable, and accordingly they may 
adopt or reject the proposal. This is not such a case. Vindi­
cation of the plaintiffs’ constitutional right does not rest 
in the school board’s discretion, as the Supreme Court 
authoritatively decided sixteen years ago and has repeated 
with increasing emphasis. It is not for the Board or this 
court to say that the cost of compliance with Brown is 
“unreasonable.”

That a subjective assessment is the operational part of 
the new “reasonableness” doctrine is highlighted by a study 
of the factors the majority bids school boards take into 
account in making bussing determinations. “ [A] school 
board should take into consideration the age of the pupils, 
the distance and time required for transportation, the effect 
on traffic, and the cost in relation to the board’s resources.” 
But, as we have seen, distance and time will be compara­
tively short, the effect on traffic is undemonstrated, the incre­
mental cost is marginal. As far as age is concerned, it has 
never prevented the bussing of pupils in Charlotte-Meck- 
lenburg, or in North Carolina generally, where 70.9% of 
all bussed students are elementary pupils.

If the transportation of elementary pupils were a novelty 
sought to be introduced by the District Court, I could 
understand my brethren’s reluctance. But, as is conceded,

Opinions of Court of Appeals dated May 26, 1970



211a

bussing of children of elementary school age is an estab­
lished tradition. Bussing has long been used to perpetuate 
dual systems.7 More importantly, bussing is a recognized 
educational tool in Charlotte-Mecklenburg and North Caro­
lina. And as the National Education Association has ad­
mirably demonstrated in its brief, bussing has played a 
crucial role in the evolution from the one-room schoolhouse 
in this nation. Since the majority accepts the legitimacy of 
bussing, today’s decision totally baffles me.

In the final analysis, the elementary pupil phase of the 
Finger plan is disapproved because the percentage increase 
in bussing is somehow determined to be too onerous.8 Why 
this is so we are not told. The Board plan itself would bus
5,000 additional pupils. The fact remains that in North 
Carolina 55% of all pupils are now being bussed. Tinder 
the Finger plan approximately 47 % of the Charlotte-Meck­
lenburg student population would be bussed. This is well 
within the existing percentage throughout the state.

The majority’s proposal is inherently ambiguous. The

7 For some extreme examples, see: School Board of Warren 
County v. Kellv, 259 F.2d 497 (4th Cir. 1958) ; Corbin v. County 
School Bd. of Pulaski County, 117 F.2d 924 (4th Cir. 1949); 
Griffith v. Bd. of Educ. of Yancey County, 186 F. Supp. 511 
(W.D.N.C. 1960) ; Gains v. County School Bd. of Grayson County, 
186 F. Supp. 753 (W.D.a. I960), stay denied, 282 F.2d 343 (4th
Cir. 1960). See also, Chambers v. Iredell C o.,------ F .2d -------  (4th
Cir. 1970) (dissenting opinion).

8 The majority calculates the elementary school portion of the 
plan to mean a 39% increase in bussed pupils, 32% increase in 
busses; the whole package, it is said, would require a 56% pupil 
increase and 49% bus increase.

These figures are accurate but do not tell the whole story. If 
one includes within the number of students presently being trans­
ported those that are bussed on commercial lines (5000), the in­
crease in pupils transported would not appear to be as large. 
Thus the plan for elementary schools would entail a 33% bussed 
pupil increment, the whole Finger plan, 47%.

Opinions of Court of Appeals dated May 26, 1970



212a

court-ordered plan is said to be unreasonable. Yet the 
School Board’s own plan has also been disapproved. Does 
the decision—that the Finger plan is unreasonable—depend 
on the premise that an intermediate course is available! 
Would the amount of segregation retained in the School 
Board’s plan be avowedly sanctioned if it were recognized 
that nothing short of the steps delineated in the District 
Court’s plan will suffice to eliminate it! Since there is no 
practicable alternative, must we assume that the majority 
is willing to tolerate the deficiencies in the Board plan!

These questions remain unresolved and thus the ultimate 
meaning of the “reasonableness” doctrine is undefined. Suf­
fice it to say that this case is not an appropriate one in 
which to grapple with the theoretical issue whether the 
law can endure a slight but irreducible remnant of segre­
gated schools. This record presents no such problem. The 
remnant of racially identifiable elementary schools, to 
which the District Court addressed itself, encompasses over 
half the elementary population. This large fraction cannot 
be called slight; nor, as the Finger plan demonstrates, is 
it irreducible.

I am even more convinced of the unwisdom of reaching 
out to fashion a new “rule of reason,” when this record is 
far from requiring it, because of the serious consequences 
it would portend for the general course of school desegre­
gation. Handed a new litigable issue—the so-called reason­
ableness of a proposed plan—school boards can be expected 
to exploit it to the hilt. The concept is highly susceptible 
to delaying tactics in the courts. Everyone can advance a 
different opinion of what is reasonable. Thus, rarely would 
it be possible to make expeditious disposition of a board’s 
claim that its segregated system is not “reasonably” eradi- 
cable. Even more pernicious, the new-born rule furnishes 
a powerful incentive to communities to perpetuate and

Opinions of Court of Appeals dated May 26, 1970



213a

deepen the effects of race separation so that, when chal­
lenged, they can protest that belated remedial action would 
be unduly burdensome.

Moreover, the opinion catapults us back to the time, 
thought passed, when it was the fashion to contend that 
the inquiry was not how much progress had been made but 
the presence or absence of good faith on the part of the 
board. Whether an “intractable remnant of segregation” 
can he allowed to persist, apparently will now depend in 
large measure on a slippery test: an estimate of whether 
the Board has made “every reasonable effort to integrate 
the pupils under its control.” 9

Opinions of Court of Appeals dated May 26, 1970

9 Both in its characterization of the facts and in its treatment 
of the case the majority implies that the actions of this Board 
have been exemplary. I feel constrained to register my dissent 
from this view although on no account do I subscribe to the prop­
osition that the disposition of the ease depends on this issue.

On April 23, 1969 the District Judge declared the Charlotte- 
Mecklenburg School District illegally segregated. He found it un­
necessary at that time to decide whether the Board had deliber­
ately gerrymandered to perpetuate the dual system since he believed 
that the court order to follow would promote substantial changes. 
The Board was given until May 15 to devise a plan eliminating 
faculty and student segregation.

A majority of the Board voted not to take an immediate appeal 
and the school superintendent was directed to prepare a plan. His 
mandate was hazy. According to the court below—

No express guidelines were given the superintendent. How­
ever, the views of many members expressed at the meeting 
were so opposed to serious and substantial desegregation that 
everyone including the superintendent could reasonably have 
concluded, as the court does, that a “minimal” plan was what 
was called for, and that the “plan” was essentially a prelude 
to anticipated disapproval and appeal.

#  * * * *
The staff were never directed to do any serious work on re­
drawing of school zone lines, pairing of schools, combining 
zones, grouping of schools, conferences with the Department 
of Health, Education and Welfare, nor any of the other



214a

The Supreme Court having barred further delay by its 
insistent emphasis on an immediate remedy, we should not 
lend ourselves to the creation of a new loophole by attenu­
ating the substance of desegregation.

Opinions of Court of Appeals dated May 26, 1970

possible methods of making real progress towards desegre­
gation.

The superintendent’s plan was submitted to the Board on May 8. 
It was quite modest in its undertaking. Nevertheless, the Board 
“struck out virtually all the effective provisions of the superin­
tendent’s plan.” The plan ultimately filed by the Board on May 
28 was “the plan previously found racially discriminatory with 
the addition of one element—the provision of transportation for 
[majority to minority transfers.]” The Board also added a rule 
making a student who transfers to a new high school ineligible for 
athletics for a year. As the District Judge found,

[t] he effect of the athletic penalty is obvious— it discriminates 
against black students who may want to transfer and take 
part in sports, and is no penalty on white students who show 
no desire for such transfers.

In the meantime the Board for the first time refused to accept 
a recommendation of the superintendent for the promotion of a 
teacher to principal. The reason avowed was that the teacher, 
who was black and a plaintiff in the suit, had publicly expressed 
his agreement with the District Court order. The job was with­
held until the prospective appointee signed a “ loyalty oath.”

The District Judge held a hearing on June 16 and ruled on 
June 20. He declined to find the Board in contempt but did note 
that “ [t]he board does not admit nor claim that it has any 
positive duty to promote desegregation.” The Judge also re­
turned to the issue of gerrymandering and found “a long standing 
policy of control over the makeup of school population which 
scarcely fits any true ‘neighborhood school philosophy.’ ”

On July 29, the Board returned with a new plan. The District 
Judge was pleased to learn that “ the School Board has reversed 
its field and has accepted its affirmative constitutional duty to 
desegregate pupils, teachers, principals and staff members ‘at the 
earliest possible date.’ ”  In view of this declaration and of the 
late date, the court “ reluctantly” approved for one year only a 
plan whereby seven all black inner-city schools would be closed 
and a total of 4245 black children bussed to outlying white schools.



215a

Albert V. Bryan, Circuit Judge, dissenting in part:

The Court commands the Charlotte-Mecklenburg Board 
of Education to provide bussing of pupils to its public 
schools for “achieving integration’>. (Accent added.) 
“ [Achieving integration”  is the phraseology used, but 
actually, achieving racial balance is the objective. Bussing

Opinions of Court of Appeals dated May 26, 1970

The Board was directed to file a plan for complete dsegregation in 
November.

By November, the District Judge was able to survey the results 
achieved under the plan adopted for the year. He found that 
“only 1315 instead of the promised 4245 black pupils” had been 
transferred. (Later information revealed that the number was 
only 767.) Furthermore, he found that

The Board has indicated that its members do not accept the 
duty to desegregate the schools at any ascertainable time; 
and they have clearly indicated that they intend not to do it 
effective in the fall of 1970. They have also demonstrated a 
yawning gap between predictions and performance.

On November 17, the Board filed a plan. It “ discarded further 
consideration of pairing, grouping, clustering and transporting.” 
Ostensibly “ to avoid ‘tipping,’ ” the plan provided that white 
students would not be assigned schools where they would find them­
selves with less than 60% whites. This was, as the District Court 
found, a one-way street in view of the fact that the plan contem­
plated no effort to desegregate schools with greater than 40% 
blacks. The plan also dropped the earlier provision of transporta­
tion for students transferring out of segregated situations. Thus 
the Board nullified the one improvement it had made in its May 8 
plan. It also left those black students who had transferred to 
outlying schools pursuant to the July 29 plan without transporta­
tion. Understandably, the court labeled this “re-segregation.”

In the face of this total lack of cooperation on the part of the 
Board, the court was compelled to appoint an expert to devise a 
plan for desegregation. The Finger plan was the result.

It appears from the record that on most issues the Board was 
sharply divided. Of course I mean to cast no aspersions on those 
members— and there were some—who urged the Board forthrightly 
to shoulder its duty. But the above recital of events demonstrates 
beyond doubt that this Board, through a majority of its members, 
far from making “ every reasonable effort”  to fulfill its constitu­
tional obligation, has resisted and delayed desegregation at every 
turn.



216a

to prevent racial imbalance is not as yet a Constitutional 
obligation. Therefore, no matter the prior or present utiliz­
ation of bussing for this or other reasons, and regardless 
of cost considerations or duplication of the bus routes, I 
think the injunction cannot stand.

Without Constitutional origin, no power exists in the 
Federal courts to order the Board to do or not to do any­
thing. I read no authority in the Constitution, or in the 
implications of Brown v. Board of Education, 347 US 483 
(1954), and its derivatives, requiring the authorities to 
endeavor to apportion the school bodies in the racial ratio 
of the whole school system.

The majority opinion presupposes this racial balance, 
and also bussing to achieve it, as Constitutional impera­
tives, but the Chief Justice of the United States has re­
cently suggested inquiry on whether “any particular racial 
balance must be achieved in the schools; . . . [and] to what 
extent transportation may or must be provided to achieve 
the ends sought by prior holdings of the Court.” See his 
memorandum appended to Northcross v. Board of Educa­
tion of the Memphis, Tennessee, City Schools,------U S ____ ,
38 USLW 4219, 4220 (March 9, 1970).*

Even construed as only incidental to the 1964 Civil Rights 
Act, this legislation in 42 United States Code § 2000c-6 is 
necessarily revealing of Congress’ hostile attitude toward 
the concept of achieving racial balance by bussing. It un­
equivocally decried in this enactment “any order [of a 
Federal court] seeking to achieve a racial balance in any

* On remand the District _ Court in Northcross has held there 
was no Constitutional obligation to transport pupils to overcome a 
racial imbalance. Northcross v. Board of Education of the Mem­
phis City Schools, ------  FS ------  (W.D.Tenn., May 1, 1970) (per
McRae, J .). In the same Circuit, see, too, Deal v. Cincinnati Board 
of Education, 419 F2d 1387 (6 Cir. 1969).

Opinions of Court of Appeals dated May 26, 1970



217a

school by requiring the transportation of pupils or students 
from one school to another . . .  to achieve such racial bal­
ance . . .

I would not, as the majority does, lay upon Charlotte- 
Mecklenburg this so doubtfully Constitutional ukase.

W in t e b , Circuit Judge, concurring in part and dissenting 
in part:

I would affirm the order of the district court in its 
entirety.*

In a school district in which freedom of choice has pat­
ently failed to overcome past state policy of segregation 
and to achieve a unitary system, the district court found 
the reasons for failure. They included resort to a desegre­
gation plan based on geographical zoning with a free trans­
fer provision, rather than a more positive method of achiev­
ing the constitutional objective, the failure to integrate 
faculties, the existence of segregated racial patterns par­
tially as a result of federal, state and local governmental 
action and the use of a neighborhood concept for the loca­
tion of schools superimposed upon a segregated residential 
pattern. Correctly the majority accepts these findings un­
der established principles of appellate review. To illustrate 
how government-encouraged residential segregation, cou­
pled with the discriminatory location and design of schools, 
resulted in a dual system, the majority demonstrates that 
in this locality busing has been employed as a tool to per­
petuate segregated schools.

Opinions of Court of Appeals dated May 26, 1970

* Certainly, if the district court’s order with respect to high 
schools and junior high schools is affirmed, the district court 
should not be invited to reconsider its order with respect to them. 
The jurisdiction of the district court is continuing and it may 
always modify its previous orders with respect to any school upon 
application and for good cause shown.



218a

In complete compliance with Carter v. West Feliciana
School Board,------U. S .-------(1970); Alexander v. Holmes
County Bd. of Ed.,------U. S .-------  (1969); Green v. School
Bd. of Neiv Kent County, 391 U. S. 430 (1968), and Monroe 
v. Bd. of Comm’rs., 391 U. S. 450 (1968), the majority con­
cludes that the existing high school and junior high school 
system must be dismantled and that the constitutional man­
date can be met by the use of geographical assignment, in­
cluding satellite districts and busing.

The majority thus holds that the Constitution requires 
that this dual system he dismantled. It indicates its recog­
nition of the need to overcome the discriminatory educa­
tional effect of such factors as residential segregation. It 
also approves the use of zones, satellite districts and re­
sultant busing for the achievement of a unitary system at 
the high school and junior high school levels. Nevertheless, 
the majority disapproves a similar plan for the desegrega­
tion of the elementary schools on the ground that the busing 
involved is too onerous. I believe that this ground is in­
substantial and untenable.

At the outset, it is well to remember the seminal declara­
tion in Brown v. Board of Education (Brown II), 349 U. S. 
294, 300 (1955), that in cases of this nature trial courts are 
to “be guided by equitable principles” in “ fashioning and 
effectuating decrees.” Since Brown II the course of deci­
sion has not departed from the underlying premise that this 
is an equitable proceeding, and that the district court is in­
vested with broad discretion to frame a remedy for the 
wrongful acts which the majority agrees have been com­
mitted. In Green v. School Board of New Kent County, 
391 U. S. at 438, the Supreme Court held that the district 
courts not only have the “power” but the “duty to render 
a decree which will, so far as possible, eliminate the dis­

Opinions of Court of Appeals dated May 26, 1970



219a

criminatory effects of the past, as well as bar like discrimi­
nation in the future.” District courts were directed to “re­
tain jurisdiction until it is clear that disestablishment has 
been achieved.” Raney v. Board of Education, 391 U. S. 
443, 449 (1968). Where it is necessary district courts may 
even require local authorities “ to raise funds adequate to 
reopen, operate, and maintain without racial discrimina­
tion a public school system.” Griffin v. School Board, 377 
U. S. 218, 233 (1964). Thus, the Supreme Court has made 
it abundantly clear that the district courts have the power, 
and the duty as well, to fashion equitable remedies designed 
to extirpate racial segregation in the public schools. And 
in fashioning equitable relief, the decree of a district court 
must be sustained unless it constitutes a clear abuse of 
discretion. United States v. W. T. Grant Co., 345 U. S. 619 
(1953).

Busing is among the panoply of devices which a court of 
equity may employ in fashioning an equitable remedy in a 
case of this type. The district court’s order required that 
“ transportation be offered on a uniform non-racial basis 
to all children whose attendance in any school is necessary 
to bring about reduction of segregation, and who lives far­
ther from the school to which they are assigned than the 
Board determines to he walking distance.” It found as a 
fact, and I accept its finding, that “there is no way” to de­
segregate the Charlotte schools in the heart of the black 
community without providing such transportation.

The district court’s order is neither a substantial advance 
nor extension of present policy, nor on this record does it 
constitute an abuse of discretion. This school system, like 
many others, is now actively engaged in the business of 
transporting students to school. Indeed, busing is a wide­
spread practice in the United States. U. S. Commission on

Opinions of Court of Appeals dated May 26, 1970



220a

Civil Eights, Racial Isolation in the Public Schools 180 
(1967). Between 1954 and 1967 the number of pupils using 
school transportation has increased from 9,509,699 to 
17,271,718. National Education Association, National Com­
mission on Safety Education, 1967-68 Statistics on Pupil 
Transportation 3.

Given its widespread adoption in American education, it 
is not surprising that busing has been held an acceptable 
tool for dismantling a dual school system. In United States 
v. Jefferson County Board of Education, 380 F.2d 385, 392 
(5 Cir.) (en banc), cert. den. sub. nom. Caddo Parrish 
School Bd. v. Lnited States, 389 U. S. 840 (1967), the court 
ordered that bus service which was “generally provided” 
must be routed so as to transport every student “to the 
school to which he is assigned” provided that the school 
“is sufficiently distant from his home to make him eligible 
for transportation under generally applicable transporta­
tion rules.” Similarly, in United States v. School Dist. 151, 
286 P. S. 786, 799 (N.D. 111. 1968), aff’d., 404 F.2d 1125 (7 
Cir. 1968), the court said that remedying the effects of past 
discrimination required giving consideration to “racial fac­
tors” in such matters as “ assigning students” and providing 
transportation of pupils. In addition, the Eighth Circuit 
in Kemp v. Beasley,------ F.2d ------  (8 Cir. 1970), recog­
nized that busing is “one possible tool in the implementa­
tion of unitary schools.” And, finally, Griffin v. School 
Board, supra, makes it clear that the added cost of neces­
sary transportation does not render a plan objectionable.

I turn, then, to the extent and effect of busing of ele­
mentary school students as ordered by the district court.

Presently, 23,600 students—21% of the total school popu­
lation—are bused, excluding some 5,000 pupils who travel 
to and from school by public transportation. The school

Opinions of Court of Appeals dated May 26, 1970



221a

board operates 280 buses. The average cost of busing stu­
dents is $39.92 per student, of which one-half is borne by 
the state and one-half by the board. Thus, the average an­
nual cost to the board is about $20.00 per student. The total 
annual cost to the board for busing is approximately 
$500,000.00 out of a total operating budget of $51,000,000.00. 
The cost of busing is thus less than 1% of the total operat­
ing budget and an even smaller percentage of the 
$57,700,000.00 which this school district expends on the 
aggregate of operations, capital outlay and debt service and 
this cost also represents less than 2% of the local funds 
which together with state and federal money constitute the 
revenue available annually to the school board.

The total number of elementary school pupils presently 
bused does not appear, but under the district court’s order 
an additional 9,300 elementary school pupils would be 
bused. The additional operating cost of busing them would 
not exceed $186,000.00 per year. They would require not 
more than 90 additional buses, and the buses would require 
an additional capital outlay of $486,000.00. The increased 
operating cost of the additional elementary school pupils 
required to be bused amounts to less than 1% of the board’s 
school budget, and the one-time capital outlays for addi­
tional buses amounts to less than 1% of the board’s total 
budget. The combined operational and capital cost repre­
sents less than 1.2% of the board’s total budget. I am, there­
fore, unable to see how the majority could consider the 
additional cost unbearable.

Perhaps more importantly, the tender years of ele­
mentary school students requires a consideration of the 
impact of the district court’s order on the average student. 
While this board transports 21% of the total school popu­
lation, it is providing transportation to a far lower per­

Opinions of Court of Appeals dated May 26, 1970



222a

centage of pupils than the average North Carolina school 
board. In North Carolina 54.9% of the average daily at­
tendance in the public schools was transported by bus dur­
ing the 1968-69 school year.

The average distance traveled by elementary school pu­
pils presently bused does not appear, but the district court 
found overall with respect to the children required to be 
bused by its order that they “will not as a group travel as 
far, nor will they experience more inconvenience than the 
more than 28,000 children who are already being trans­
ported * * While the district court did not make sep­
arate findings with regard to the average length of travel 
for the additional elementary school pupils required to be 
bused, it did find that the average one-way bus trip in the 
system today is over 15 miles in length and takes nearly 
an hour and a quarter. In contrast, the court found that 
under its plan the average one-way trip for elementary 
school students would be less than 7 miles and would re­
quire not over thirty-five minutes.

When I consider that busing has been widely used in this 
system to perpetuate segregation, that some busing was 
proposed even under the unacceptable board plans, that 
the cost of additional busing to the system as required by 
the court’s order, both in absolute terms and in relation to 
its total expenditures is so minimal, and that the impact on 
the elementary school pupils is so slight, I discern no basis 
for concluding that the district court abused its discretion 
with respect to the elementary school.

Two other aspects of the majority’s opinion require my 
comment.

First, the majority attempts to answer the query of the 
Chief Justice in his separate opinion in Northcross v. Board

Opinions of Court of Appeals dated May 26, 1970



223a

of Ed. of Memphis,------U. S. -------  (1970), as to whether
“any particular racial balance must be achieved in the 
schools” by holding “that not every school in a unitary 
school system need be integrated # * To me, the hold­
ing is premature and unwise. There is not in this case 
either the intractable problem of a vast urban ghetto in a 
large city or any substantial basis on which it may be said 
that the cost or the impact on the system or on the pupils 
of dismantling the dual system is insupportable.

The district court wisely attempted to remedy the pres­
ent dual system by requiring that pupil assignment be 
based “as nearly as practicable” on the racial composition 
of the school system, 71% white and 29% black. The plan 
ordered fell short of complete realization of this remedial 
goal. While individual schools will vary in racial composi­
tion from 3% to 41% black, most schools will be clustered 
around the entire system’s overall racial ratio. It would 
seem to follow from United States v. Montgomery Board of 
Education, 395 U. S. 225, 232 (1968), that the district 
court’s utilization of racial ratios to dismantle this dual 
system and remedy the effects of segregation was at least 
well within the range of its discretion. There the Supreme 
Court approved as a requirement of faculty integration 
that “in each school the ratio of white to Negro faculty 
members is substantially the same as it is throughout the 
system.” It did so recognizing that it had previously said 
in New Kent County, 391 U. S. at 439, “ [tjhere is no uni­
versal answer to complex problems of desegregation; there 
is obviously no one plan that will do the job in every case. 
The matter must be assessed in light of the circumstances 
present and the options available in each instance.” If in 
a proper case strict application of a ratio is an approved 
device to achieve faculty integration, I know of no reason

Opinions of Court of Appeals dated May 26, 1970



224a

why the same should not be true to achieve pupil integration, 
especially where, as here, some wide deviations from the 
overall ratio have been permitted to accommodate circum­
stances with respect to particular schools.

In addition to Montgomery, the same conclusion can be 
deduced from the mandate of West Feliciana and Holmes 
County to dismantle immediately a dual system. Schools 
cease to be black or white when each reflects the overall 
pupil racial balance of the entire system. What imbalances 
may be justified after a unitary system has once been estab­
lished, and what departures from an overall pupil racial 
balance may he permitted to accommodate special circum­
stances in the establishment of a unitary system, should be 
developed on a case-by-case basis and the facts of record 
which each case presents.

The other aspect of the majority’s opinion which troubles 
me greatly is its establishment of the test of reasonableness. 
My objections to this test do not spring from any desire to 
impose treasonable, irrational or onerous solutions on 
school systems; I, too, seek “reasonable” means with which 
to achieve the constitutionally required objective of a uni­
tary system.

My objections are two-fold.
First, this is an inappropriate case in which to establish 

the test. On this record it cannot be said that the board 
acted reasonably or that there is any viable solution to the 
dismantling of the dual system other than the one fashioned 
by the district court. Neither the board nor HEW has 
suggested one. So that, again, I think the majority is pre­
mature in its pronouncement and I would find no occasion to 
discuss reasonableness when there is no choice of remedies.

Second, the majority sets forth no standards by which to 
judge reasonableness or unreasonableness. The majority

Opinions of Court of Appeals dated May 26, 1970



225a

approves the district court’s plan as to high schools and 
junior high schools, yet disapproves as to elementary 
schools. The only differences are increased busing with 
attendant increased cost, time and distance. The majority 
subjectively concludes that these costs are too great to 
permit the enforcement of the constitutional right to a 
unitary system. I would find them neither prohibitive nor 
relatively disproportionate. But, with the absence of stan­
dards, how are the school boards or courts to know what 
plans are reasonable? The conscientious board cannot de­
termine when it is in compliance. The dilatory board re­
ceives an open invitation to further litigation and delay.

Finally, I call attention to the fact that “reasonableness” 
has more than faint resemblance to the good faith test of 
Brown II. The 13 years between Brown II and New Kent 
County amply demonstrate that this test did not work. 
Ultimately it was required to be rejected and to have sub­
stituted for it the absolute of “now” and “at once.” The 
majority ignores this lesson of history. If a constitutional 
right exists, it should be enforced. On this record the con­
stitutional rights of elementary school pupils should be 
enforced in the manner prescribed by the district court, 
because it is clear that the district court did not abuse its 
discretion.

Judge Sobeloff authorizes me to say that he joins in 
these views.

Opinions of Court of Appeals dated, May 26, 1970



226a

Judgment of Court of Appeals 
dated May 26, 1970

This cause came on to be heard on the record from the 
United States District Court for the Western District of 
North Carolina, and was argued by counsel.

On consideration whereof, it is O rdered and A djudged 
that the judgment of the District Court appealed from, 
in this case, be, and the same is hereby, vacated; and the 
case is remanded to the United States District Court for 
the Western District of North Carolina, at Charlotte, for 
further proceedings.

Judge Bryan joins Haynsworth, C.J. and Boreman, J. 
in voting to vacate the judgment of the District Court, 
and to remand the case in accordance with the opinion 
written by Butzner, J. He does so for the sake of creating 
a clear majority for the decision to remand. It is his hope 
that upon reexamination the District Court will find it 
unnecessary to contravene the principle stated in Judge 
Bryan’s dissent herein, to which he still adheres. Screws 
v. United States, 325 US 91, 135 (1945).

By direction of the Court.

S a m u e l  W. P h ill ips  
Clerk



227a

Order of Three-Judge District Court 
dated April 29, 1970

I n  t h e  U nited  S tates D istrict C ourt for th e  
W estern  D istrict  of N orth  Carolina 

C harlotte  D ivision

Civil No. 1974

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

versus
Plaintiffs,

C h arlotte -M ecklen burg  B oard of E ducation , a public 
body corporate; W illiam  E . P o e ; H enderson B e l k ; 
D an  H ood ; B en P . H u n t l e y ; B etsey K e l l y ; C oleman 
W . K erry , J r . ; J u lia  M aulden  ; S am  M cN in c h , II I ; 
C arlton  G. W at k in s  ; T h e  N orth  C arolina S tate B oard 
of E d ucatio n , a public body corporate; and D r . A. C raig 
P h il l ip s , Superintendent of Public Instruction of the 
State of North Carolina,

Defendants,
and

H onorable R obert W . S cott, Governor of the State of 
North Carolina; H onorable A . C. D avis, Controller of 
the State Department of Public Instruction; H onorable 
W il liam  K. M cL ea n , Judge of the Superior Court of 
Mecklenburg County; T om B. H ar r is ; G. D on R ober­
s o n ; A . B reece B r e l a n d ; J ames M. P o stell ; W illiam  
E . R orie, J r . ;  C h alm ers  R . C a r r ; R obert T . W il s o n ; 
and the C oncerned  P arents A ssociation, an unincorpo­
rated association in Mecklenburg County; J ames Carson 
and W illiam  H . B ooe,

Additional Parties-Defendant.



228a

Order of Three-Judge District Court dated April 29, 1970

Civil No. 2631

M bs. R obert L ee M oore, et al., 

versus
Plaintiffs,

C h arlotte -M ecklen bu rg  B oard of E ducation  and W il liam  
C. S e l f , Superintendent of Charlotte-Mecklenburg 
Public Schools,

Defendants.

T h re e -J udge C ourt

(Heard March 24, 1970 Decided April 29, 1970.)
Before C raven  and B u t zn e r , Circuit Judges, and M c­
M il l a n , District Judge.

Craven , Circuit Judge:

This three-judge district court was convened pursuant 
to 28 U.S.C. § 2281, et seq. (1964), to consider a single as­
pect of the above-captioned case: the constitutionality and 
impact of a state statute, N. C. Gen. Stat. § 115-176.1 (Supp. 
1969), known as the antibussing law, on this suit brought 
to desegregate the Charlotte-Mecklenburg school system. 
We hold a portion of N. C. Gen. Stat. § 115-176.1 unconsti­
tutional because it may interfere with the school board’s 
performance of its affirmative constitutional duty under the 
equal protection clause of the Fourteenth Amendment.

I .

On February 5, 1970, the district court entered an order 
requiring the Charlotte-Mecklenburg School Board to de­



229a

segregate its school system according to a court-approved 
plan. Implementation of the plan could require that 13,300 
additional children he bussed.1 This, in turn, could require 
up to 138 additional school buses.2

Prior to the February 5 order, certain parties filed a 
suit, entitled Tom B. Harris, G. Don Roberson, et al. v. 
William C. Self, Superintendent of Charlotte-MecMenburg 
Schools and Charlotte-Mecklenburg Board of Education, in 
the Superior Court of Mecklenburg County, a court of gen­
eral jurisdiction of the State of North Carolina. Part of the 
relief sought was an order enjoining the expenditure of 
public funds to purchase, rent or operate any motor vehicle 
for the purpose of transporting students pursuant to a 
desegregation plan. A  temporary restraining order grant­
ing this relief was entered by the state court, and, in re­
sponse, the Swann plaintiffs moved the district court to add 
the state plaintiffs as additional parties defendant in the 
federal suit, to dissolve the state restraining order, and 
to direct all parties to cease interfering with the federal 
court mandates. Because it appeared that the constitution­
ality of N. C. Gen. Stat. § 115-176.1 (Supp. 1969) would be 
in question, the district court requested designation of this 
three-judge court on February 19, 1970. On February 25, 
1970, the district judge granted the motion to add additional 
parties. Meanwhile, on February 22, 1970, another state 
suit, styled Mrs. Robert Lee Moore, et al. v. Charlotte-

1 On March 5, 1970, the Fourth Circuit Court of Appeals stayed 
that portion of the district court’s order requiring bussing of stu­
dents pending appeal to the higher court.

2 There is a dispute between the parties as to the additional num­
ber of children who will be bussed and as to the number of addi­
tional buses that will he needed. For our purposes, it is imma­
terial whose figures are correct. The figures quoted are taken 
from the district judge’s supplemental findings of faet, filed March 
21, 1970.

Order of Three-Judge District Court dated April 29, 1970



230a

Mecklenburg Board of Education and William C. Self, 
Superintendent of Charlotte-Mecklenburg Schools, was be­
gun. In this second state suit, the plaintiffs also requested 
an order enjoining the school board and superintendent 
from implementing the plan ordered by the district court 
on February 5. The state court judge issued a temporary 
restraining order embodying the relief requested, and on 
February 26, 1970, the Swann plaintiffs moved to add Mrs. 
Moore, et al., as additional parties defendant in the federal 
suit. On the same day, the state defendants filed a petition 
for removal of the Moore suit to federal court. On March 
23, 1970, the district judge requested a three-judge court 
in the removed Moore case, and this panel was designated 
to hear the matter. All the cases were consolidtaed for 
hearing, and the court heard argument by all parties on 
March 24, 1970.

II.
N. C. Gen. Stat. §115-176.1 (Supp. 1969) reads:

Assignment of pupils based on race, creed, color or 
national origin prohibited.—No person shall be refused 
admission into or be excluded from any public school 
in this State on account of race, creed, color or national 
origin. No school attendance district or zone shall be 
drawn for the purpose of segregating persons of vari­
ous races, creeds, colors or national origins from the 
community.

Where administrative units have divided the geo­
graphic area into attendance districts or zones, pupils 
shall be assigned to schools within such attendance 
districts; provided, however, that the board of educa­
tion of an administrative unit may assign any pupil 
to a school outside of such attendance district or zone 
in order that such pupil may attend a school of a

Order of Three-Judge District Court dated April 29, 1970



231a

specialized kind including but not limited to a voca­
tional school or school operated for, or operating pro­
grams for, pupils mentally or physically handicapped, 
or for any other reason which the board of education 
in its sole discretion deems sufficient. No student shall 
be assigned or compelled to attend any school on ac­
count of race, creed, color or national origin, or for 
the purpose of creating a balance or ratio of race, re­
ligion or national origins. Involuntary bussing of stu­
dents in contravention of this article is prohibited, and 
public funds shall not be used for any such bussing.

The provisions of this article shall not apply to a 
temporary assignment due to the unsuitability of a 
school for its intended purpose nor to any assignment 
or transfer necessitated by overcrowded conditions or 
other circumstances which, in the sole discretion of the 
school board, require assignment or reassignment.

The provisions of this article shall not apply to an 
application for the assignment or reassignment by the 
parent, guardian or person standing in loco parentis of 
any pupil or to any assignment made pursuant to a 
choice made by any pupil who is eligible to make such 
choice pursuant to the provisions of a freedom of choice 
plan voluntarily adopted by the board of education of 
an administrative unit.

It is urged upon iis that the statute is far from clear and 
may reasonably be interpreted several different ways.

(A) Plaintiffs read the statute to mean that the 
school board is prevented from complying with its duty 
under the Fourteenth Amendment to establish a uni­
tary school system. See, e.g., Green v. County School 
Bd. of New Kent County, 391 U.S. 430, 439 (1968). In

Order of Three-Judge District Court dated April 29, 1970



232a

support of this contention, plaintiffs argue that the 
North Carolina General Assembly passed § 115-176.1 
in response to an April 23, 1969, district court order, 
which required the school board to submit a plan to 
desegregate the Charlotte schools for the 1969-70 school 
year. Under plaintiffs’ interpretation of the statute, 
the board is denied all desegregation tools except non- 
gerrymandered geographic zoning and freedom of 
choice. Implicit in this, of course, is the suggestion that 
zoning and fredom of choice will be ineffective in the 
Charlotte context to disestablish the asserted duality 
of the present system.

(B) The North Carolina Attorney General argues 
that the statute was passed to preserve the neighbor­
hood school concept. Under his interpretation, the 
statute prohibits assignment and bussing inconsistent 
with the neighborhood school concept. Thus, to dis­
establish a dual system the district court could, con­
sistent with the statute, only order the board to geo­
graphically zone the attendance areas so that, as nearly 
as possible, each student would be assigned to the 
school nearest his home regardless of his race. Im­
plicit in this argument is that any school system is 
per se unitary if it is zoned according to neighborhood 
patterns that are not the result of officially sanctioned 
racial discrimination. Although the Attorney General 
emphasizes the expression of state policy by the Legis­
lature in favor of the neighborhood school concept, he 
recognizes, of course, that the statute also permits 
freedom of choice if a school board voluntarily adopts 
such a plan. Thus, the plaintiffs and the Attorney Gen­
eral read the statute in much the same way: that it 
limits lawful methods of accomplishing desegregation

Order of Three-Judge District Court dated April 29, 1970



233a

Order of Three-Judge District Court dated April 29, 1970

to nongerrymandered geographic zoning and freedom 
of choice.

(C) The school board’s interpretation of the statute 
is more ingenious. The hoard concedes that the statute 
prohibits assignment according to race, assignment to 
achieve racial balance, and involuntary bussing for 
either of these purposes, but contends that the facial 
prohibitions of the statute only apply to prevent a 
school board from doing more than necessary to 
attain a unitary system. The argument is that since 
the statute only begins to operate once a unitary 
system has been established, it in no way interferes 
with the board’s constitutional duty to desegregate 
the schools. Counsel goes on to insist that Charlotte- 
Mecklenburg presently has a unitary system and, 
therefore, that the state court constitutionally applied 
the statute to prevent further unnecessary racial 
balancing.

(D) Plaintiffs in the Harris suit contend (1) that 
in 42 U.S.C. §§2000c(b) and 2000c-6(a)(2) (1964)3

3 § 2000c:
As used in this subchapter—

*  # # # #

(b) “Desegregation” means the assignment of students to 
public schools and within such schools without regard to their 
race, color, religion, or national origin, but “desegregation” 
shall not mean the assignment of students to public schools 
in order to overcome racial imbalance.

§ 2000c-6(a) :
(2) [P]rovided that nothing herein shall empower any offi­

cial or court of the United States to issue any order seeking 
to achieve a racial balance in any school by requiring the 
transportation of pupils or students from one school to 
another or one school district to another in order to achieve 
such racial balance, or otherwise enlarge the existing power 
of the court to insure compliance with constitutional standards.



234a

Congress expressly prohibited assignment and bussing 
to achieve racial balance, (2) that to compel a child 
to attend a school on account of his race or to com­
pel him to be involuntarily bussed to achieve a racial 
balance violates the principle of Brown v. Bd. of Ed. 
of Topeka, 347 U.S. 483 (1954), and (3) that N. C. Gen. 
Stat. § 115-176.1 merely embodies the principle of the 
neighborhood school in accordance with Brown and 
the Civil Eights Act of 1964. We may dispose of the 
first contention at once. The statute “cannot be in­
terpreted to frustrate the constitutional prohibition 
[against segregated schools].” United States v. School 
Dist. 151 of Cook Co., 404 F.2d 1125, 1130 (7th Cir. 
1968).

(E) Plaintiffs in the Moore suit argue that the 
district court order of February 5, 1970, was in 
contravention of Brown and, therefore, that the state 
court order in their suit was justified. However, the 
Moore plaintiffs also argue that certain parts of the 
second and third paragraphs in the state statute are 
unconstitutional because they give the school board 
the authority to assign children to schools for what­
ever reasons the board deems necessary or sufficient. 
The Moore plaintiffs interpret these portions of the 
statute as permitting assignment and bussing on the 
basis of race conti-ary to Brown and the Fourteenth 
Amendment.

III.
Federal courts are reluctant, as a matter of comity and 

respect for state legislative judgment and discretion, to 
strike down state statutes as unconstitutional, and will not 
do so if the statute reasonably can be interpreted so as not

Order of Three-Judge District Court dated April 29, 1970



235a

to conflict with the federal Constitution. But to read the 
statute as innocuously as the school board suggests would, 
we think, distort and twist the legislative intent. We agree 
with plaintiffs and the Attorney General that the statute 
limits the remedies otherwise available to school hoards 
to desegregate the schools. The harder question is whether 
the limitation is valid or conflicts with the Fourteenth 
Amendment. We think the question is not so easy, and the 
statute not so obviously unconstitutional, that the question 
may lawfully be answered by a single federal judge, see 
Turner v. City of Memphis, 369 U.S. 350 (1962); Bailey v. 
Patterson, 369 U.S. 31 (1962), and we reject plaintiffs’ 
attack upon our jurisdiction. Swift d Co. v. Wickham, 
382 U.S. I l l  (1965); C. Wright, Law of Federal Courts 
§50 at 190 (2d ed. 1970).

In Green v. County School Bd. of New Kent Co., 391 
U.S. 430 (1968), the Supreme Court declared that a school 
board must take effective action to establish a unitary, non- 
racial system, if it is not already operating such a system. 
The Court neither prohibited nor prescribed specific types 
of plans, but, rather, emphasized that it would judge each 
plan by its ultimate effectiveness in achieving desegrega­
tion. In Green itself, the Court held a freedom-of-choice 
plan insufficient because the plan left the school system 
segregated, but stated that, under the circumstances exist­
ing in New Kent County, it appeared that the school board 
could achieve a unitary system either by simple geo­
graphical zoning or by consolidating the two schools in­
volved in the case. 391 U.S. at 442, n. 6. Under Green and 
subsequent decisions, it is clear that school boards must 
implement plans that work to achieve unitary systems, 
iNorthcross v. Bd. of Ed. of the Memphis City Schools, 
------U .S.------- , 38 L.W. 4219 (1970); Alexander v. Holmes

Order of Three-Judge District Court dated April 29, 1970



236a

Co. Bd. of Ed., 396 U.S. 19 (1969). Plans that do not 
produce a unitary system are unacceptable.4

We think the enunciation of policy by the legislature 
of the State of North Carolina is entitled to great respect. 
Federalism requires that whenever it is possible to achieve 
a unitary system within a framework of neighborhood 
schools, a federal court ought not to require other remedies 
in derogation of state policy. But if in a given fact context 
the state’s expressed preference for the neighborhood 
school cannot be honored without preventing a unitary 
system, it is the former policy which must yield under 
the Supremacy Clause.

Stated differently, a statute favoring the neighborhood 
school concept, freedom-of-choice plans, or both can validly 
limit a school board’s choice of remedy only if the policy 
favored will not prevent the operation of a unitary system. 
That it may or may not depends upon the facts in a 
particular school system. The flaw in this legislation is its 
rigidity. As an expression of state policy, it is valid. To 
the extent that it may interfere with the board’s perfor­

Order of Three-Judge District Court dated April 29, 1970

4 The reach of the Court’s mandate is not yet clear:
[A ]s soon as possible . . .  we ought to resolve some of the 

basic practical problems when they are appropriately pre­
sented including whether, as a constitutional matter, any par­
ticular racial balance must be achieved in the schools; to 
what extent school districts and zones may or must be altered 
as a constitutional matter; to what extent transportation may 
or must be provided to achieve the ends sought by prior 
holdings of the Court.

Northcross v. Bd. of Ed. of the Memphis City Schools, ------ U.S.
------ , 38 L.W. at 4220 (1970) (Chief Justice Burger, concurring).
For our purposes, it is sufficient to say that the mandate applies 
to require “ reasonable” or “ justifiable” solutions. See generally 
Fiss, Racial Imbalance in the Public Schools: The Constitutional 
Concepts, 78 Harv. L. Rev. 564 (1965).



237a

mance of its affirmative constitutional duty to establish a 
unitary system, it is invalid.

The North Carolina statute, analyzed in light of these 
principles, is unconstitutional in part. The first paragraph 
of the statute reads:

No person shall be refused admission into or be 
excluded from any public school in this State on 
account of race, creed, color or national origin. No 
school attendance district or zone shall be drawn for 
the purpose of segregating persons of various races, 
creeds, colors or national origins from the community.

There is nothing unconstitutional in this paragraph. It 
is merely a restatement of the principle announced in 
Brown v. Bd. of Ed. of Topeka, 347 U.S. 483 (1954)
(Brown I).

The third paragraph of the statute reads:
The provisions of this article shall not apply to a 

temporary assignment due to the unsuitability of a 
school for its intended purpose nor to any assignment 
or transfer necessitated by overcrowded conditions or 
circumstances which, in the sole discretion of the school 
board, require assignment or reassignment.

This paragraph merely allows the school board noninvidi- 
ous discretion to assign students to schools for valid ad­
ministrative reasons. As we read it, it does not relate 
to race at all and, so read, is constitutional.

The fourth paragraph provides:
The provisions of this article shall not apply to an 

application for the assignment or reassignment by the 
parent, guardian or person standing in loco parentis

Order of Three-Judge District Court dated April 29, 1970



238a

of any pupil or to any assignment made pursuant to 
a choice made by any pupil who is eligible to make such 
choice pursuant to the provisions of a freedom of choice 
plan voluntarily adopted by the board of education of 
an administrative unit.

This paragraph relieves school boards from compliance 
with the statute where they are implementing voluntarily 
adopted freedom-of-choice plans within their systems. It 
does not require the boards to adopt freedom of choice 
in any particular situation, but leaves them free to comply 
with their constitutional duty by any effective means avail­
able, including, where it is appropriate, freedom of choice. 
So interpreted, the paragraph is constitutional.

The second paragraph of the statute contains the con­
stitutional infirmity. It reads:

Where administrative units have divided the geo­
graphic area into attendance distracts or zones, pupils 
shall be assigned to schools within such attendance 
districts; provided, however, that the board of educa­
tion of an administrative unit may assign any pupil 
to a school outside of such attendance district or zone 
in order that such pupil may attend a school of a 
specialized kind including but not limited to a voca­
tional school or school operated for, or operating pro­
grams for, pupils mentally or physically handicapped, 
or for any other reason which the board of education 
in its sole discretion deems sufficient. No student shall 
be assigned or compelled to attend any school on ac­
count of race, creed, color or national origin, or for the 
purpose of creating a balance or ratio of race, religion 
or national origins. Involuntary bussing of students

Order of Three-Judge District Court dated April 29, 1970



239a

in contravention of this article is prohibited, and pub­
lic funds shall not be used for any such bussing.

The first sentence of the paragraph presents no greater 
constitutional problem than the third and fourth para­
graphs of the statute, discussed above. It allows school 
boards to establish a geographically zoned neighborhood 
school system, but it does not require them to do so. Con­
sequently, this sentence does not prevent the boards from 
complying with their constitutional duty in circumstances 
where zoning and neighborhood school plans may not re­
sult in a unitary system. The clause in the first sentence 
permitting assignment for “any other reason” in the board’s 
“ sole discretion” we read as meaning simply that the school 
boards may assign outside the neighborhood school zone 
for noninvidious administrative reasons. So read, it pre­
sents no difficulty. The second and third sentences are 
unconstitutional. They plainly prohibit school boards from 
assigning, compelling, or involuntarily bussing students 
on account of race, or in order to racially “balance” the 
school system. Green v. School Bd. of New Kent Co., 391 
U.S. 430 (1968), Brown v. Bd. of Ed. of Topeka, 349 U.S. 
294 (1955) (Brown II), and Brown v. Bd. of Ed. of Topeka, 
347 U.S. 483 (1954) (Brown I), require school boards to 
consider race for the purpose of disestablishing dual 
systems.

The Constitution is not color-blind with respect to the 
affirmative duty to establish and operate a unitary school 
system. To say that it is would make the constitutional 
principle of Brown I and II an abstract principle instead 
of an operative one. A flat prohibition against assignment 
by race would, as a practical matter, prevent school boards 
from altering existing dual systems. Consequently, the 
statute clearly contravenes the Supreme Court’s direction

Order of Three-Judge District Court dated April 29, 1970



240a

that boards must take steps adequate to abolish dual sys­
tems. See Green v. School Bd. of Kent Co., 391 U.S. 430, 
437 (1968). As far as the prohibition against racial “bal­
ance” is concerned, a school board, in taking affirmative 
steps to desegregate its systems, must always engage in 
some degree of balancing. The degree of racial “balance” 
necessary to establish a unitary system under given cir­
cumstances is not yet clear, see Northcross v. Bd. of Ed.
of the Memphis City Schools, ------U.S. ------- , 38 L.W. at
4220 (1970) (Chief Justice Burger concurring), but be­
cause any method of school desegregation involves selec­
tion of zones and transfer and assignment of pupils by 
race, a flat prohibition against racial “balance” violates the 
equal protection clause of the Fourteenth Amendment. 
Finally, the statute’s prohibition against “involuntary 
bussing” also violates the equal protection clause. Bussing 
may not be necessary to eliminate a dual system and es­
tablish a unitary one in a given case, but we think the 
Legislature went too far when it undertook to prohibit its 
use in all factual contexts. To say that bussing shall not 
be resorted to unless unavoidable is a valid expression of 
state policy, but to flatly prohibit it regardless of cost, 
extent and all other factors—including willingness of a 
school board to experiment—contravenes, we think, the 
implicit mandate of Green that all reasonable methods be 
available to implement a unitary system.

Although we hold these statutory prohibitions uncon­
stitutional as violative of equal protection, it does not 
follow that “bussing” will be an appropriate remedy in any 
particular school desegregation case. On this issue we 
express no opinion, for the question is now on appeal 
to the United States Court of Appeals for the Fourth 
Circuit and is not for us to decide.

Order of Three-Judge District Court dated April 29, 1970



241a

It is clear that each case must he analyzed on its own 
facts. See Green v. School Bd. of New Kent Co., 391 U.S. 
430 (1968). The legitimacy of the solutions proposed and 
ordered in each case must be judged against the facts of 
a particular school system. We merely hold today that 
North Carolina may not validly enact laws that prevent 
the utilization of any reasonable method otherwise avail­
able to establish unitary school systems. Its effort to do 
so is struck down by the equal protection clause of the 
Fourteenth Amendment and the Supremacy Clause (Article 
2 of the Constitution).

V
As we have no cause to doubt the sincerity of the various 

defendants, the plaintiffs’ motion to hold them in contempt 
for interference with the district court’s orders and their 
request for an injunction against enforcement of the statute 
will be denied. We believe the defendants, including the 
state court plaintiffs, will, pending appeal, respect this 
court’s judgment, which applies statewide with respect to 
the constitutionality of the statute.

Several of the parties have moved to be dismissed from 
the case, alleging various grounds in support of their 
motions. Because of the view we take of this suit and the 
limited relief we grant, the motions to dismiss become im­
material. The school board is undeniably a proper party 
before the court on the constitutional issue, since it is a 
party to the desegregation suit. We can, therefore, con­
sider and adjudge the validity of the statute, regardless of 
the position of the other parties. That we consider the 
substantive arguments of all the parties in no way harms 
those who have moved to be dismissed.

An appropriate judgment will be entered in accordance 
with this opinion.

Order of Three-Judge District Court dated April 29, 1970



M E IIEN  PRESS INC. — N. Y. C. 219