Response to Petitioners' Motion to Advance and for Pendente Lite Relief

     [||bc625b57-02e4-4c1d-a3b4-ed01e41f01ff||] In The 

SUPREME COURT OF THE UNITED STATES 

October Term, 1969 

No. 
A ————— 

  

JAMES E. SWANN, et al., 

Petitioners, 

Y. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al., 

Respondents. 

  

RESPONSE TO PETITIONERS' MOTION TO ADVANCE 

AND FOR PENDENTE LITE RELIEF AND 

RESPONDENTS' MOTION WITH RESPECT TO FORM 

OF CROSS PETITION FOR CERTIORARI 

  

The respondents, the Charlotte-Mecklenburg Board of Education and 

its individual Board members, intend to file on or before June 29, 1970, 

a cross petition for certiorari in this action, appealing from portions of 

the decision of the Court of Appeals for the Fourth Circuit entered in the 

above entitled action on the 26th day of May, 1970, and therefore join in 

part in petitioners' motion requesting this Court to advance its consideration 

and disposition of this case. 

 



  

4 * 

In view of the imminent adjournment of this Court, the respondents 

as cross petitioners for a writ of corilonar move this Court for an order 

authorizing the filing of the original and nine typewritten copies of its 

cross petition for a writ of certiorari and granting permission to file as 

soon as practicablethereafter the printed copies thereof required by the 

rules of this Court. 

The petition for writ of certiorari and the cross petition will 

appropriately present such basic practical problems as to /'whether, as 

a constitutional matter, any particular 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. Board of Education of the City of Memphis, 
  

90 S. Ct. 891 (1970). The questions presented will be of great national 

concern and, in view of the impending opening of schools for the 1970-71 

school term, immediate resolution of such issues by the Court is urgently 

required. Otherwise, schools not only in Charlotte-Mecklenburg, but 

throughout the nation, will be required to open next fall faced with a 

substantial air of uncertainty and potential disruption. In view of their 

importance, it is urged that the resolution of these issues by this Court 

should follow full written and oral presentation. 

 



¢ 

  

With respect to petitioners' motion for pendente lite relief, that   

relief, in effect, has been previously denied by this Court when it approved 

the stay issued by the Court of Appeals for the Fourth Circuit pending 

appeal. Swann v. Charlotte-Mecklenburg Board of Education, Mem. 90 
  

S. Ct. 1099 (1970). Furthermore, the Court of Appeals has directed 

the respondent School Board, after consultation with the Department of 

Health, Education and Welfare, to submit a new plan for elementary - 

desegregation on or before June 30, 1970. It is noted thats/the junior and 

senior high school plans ordered by the district court were approved by 

the Court of Appeals and, therefore, petitioners' motion relates only to 

elementary students. In accordance with the holding of Alexander v. 
  

Holmes, 396 U.S. 19, for school boards to desegregate now and litigate 

later, the Court of Appeals for the Fourth Circuit took specific action in 

protecting the rights of the petitioners by directing as follows: 

"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 approving 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 district court considers the suggested 

modifications. Cf. Nesbit v. Statesville City Bd. of Ed., 

418 F. 2d 1040, 1043 (4th Cir. 1969). " 

 



4 » 

  

WHEREFORE, the respondents pray the Court: 

1. Advance consideration of the petition for writ of certiorari 

and respondents’ cross petition at a special or extended term as may 

be convenient. 

2. If the Court determines to grant the petition for writ of 

certiorari and the cross petition, arrange such procedures as will 

permit full and prompt briefing, presentation of adequate appendix 

and oral argument. / 

3. The respondents - cross petitioners be permitted to file the 

original and nine typewritten copies of its cross petition for a writ of 

certiorari and file as soon as practicable thereafter the printed copies 

thereof required by the rules of this Court. 

4. The motion for relief pendente lite should be denied. 
  

Respectfully submitted, 

@ 2 y 
of / Ep 

8 | & V4 & A . : i JE—— 

n ’ x ot 

William J. Waggoner 47g” 
Weinstein, Waggoner, Sturges, Odom 

and Bigger 

1100 Barringer Office Tower 

Charlotte, North Carolina 

  

    

Benjamin S. Horack { 
Frvin, Horack and McCartha 

806 East Trade Street 

Charlotte, North Carolina 

  

Attorneys for Respondents 

 



  

CHERTIIFICATr oFr SFRV ICE   

This is to certify that copies of the foregoing Response to 

Petitioners' Motion to Advance and for Pendente Lite Relief have been   

served upon all parties by depositing same in the United States mail, 

postage pre-paid, first class. 
L 

This 23rd. day of June, 1970. 

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Willian/J. Wagggpeér [||bc625b57-02e4-4c1d-a3b4-ed01e41f01ff||]