Response in Opposition to Appellees' and Cross Appellants' Motion for Costs

     [||6f04c220-2490-4262-9589-e1d8dbb6a1f9||] JAMES E. SWANN, et al, 

Appellees and Cross Appellants 

VS. 

CHARLOTTE-MECKLENBURG 

BOARD OF EDUCATION, et al, 

Appellants and Cross Appellees 

RESPONSE IN OPPOSI ITION TO APPELLEES 
AND CROSS APPELLANTS’ MOTION FOR COSTS 

The Charlotte-Mecklenburg Board of Education, et al, 

appellants and cross appellees, respectfully request the Court 

to deny the motion cf appellees and cross appellants for allowance 

of costs and in support thereof, respectfully show unto the 

Court as follows: 

1. This action was instituted in 1965 at which time the! 

District Court found the school system to be in compliance with 

- 

the Constitution. Swann v. Charlotte-Mecklenburg Board of 
  

Education, 242 FP. Supp. 667 (1965). The holding of the District 
  

Court was approved by the United States Court of Appeals for 

Fourth Circuit in 1966 in Swann v. Charlotte-Mecklenburg Board 
  

of Education, 369 P. 24. 29. In a concurring opinion, Circuit 
  

Judges Sobeloff and Bell restated: 

"This is far from suggesting that children 
are to be uprooted arbitrarily and bused 
against their will to distant places merely 
to place them with children of the other 
race. . 0" 

2. On September 6, 1968, appellees and cross appellants 

filed their motion for further relief which resulted in the entry 

Of the District Court's: order of April 23, 1969. In. that order, 

the District Court expressly found that the Board had operated 

in good faith pursuant to the "general understanding of 1965 

 



  

". . . They have achieved a degree and volume 

of desegregation of schools apparently unsur- 
passed in these parts, and have exceeded the 
performance of any school board whose actions 
have been reviewed in appellate court decisions. 
The Charlotte-Mecklenburg schools in many 

respects are models for others." 

[1
 

F 
I] 

-
 

' 

)
 

(8
) 

F 
|] 

Ce
) 

(0
) 

WO
 

O = (@)
 

(D
 

H
 cr
 

rs
 

(()
 

| wn
 

ct
 

H
 Q ct
 

@)
 

O £ HN
 

cl
 {| In the same Ap 

I found there was no racial discrimination or inequality with 

ll reference to the use of federal funds or special aid to 

disadvantaged, use of mobile classrooms, the cguality of school 
pi A - 

be 3 buildings and equipment, coaching of athletics, parent-teacher 

association contributions and activities, school fees, school 

lunches, library books, elective courses, individual evaluation 

| of students and gerrymandering. 

I As indicated above, the good faith administration of 

|| the Charlotte-Mecklenburg schools was accomplished under express 

lI authorization and approval of a district court which held: 

"As a general proposition, it is undoubtedly 
true that one could deliberately sit down 

| with the purpose in mind to change lines 

in order to increase mixing of the races and 
| accomplish the same with some degree of 

success. I know of no such duty upon either 
the School Board or the District Court. The 

1 question is not whether zones can be 
I gerrymandered for the assumed good purpose 
1 of racial mixing, but whether gerrymandering 
| occurred for the unconstitutional purpose of 
I preventing the mixing of the races." Swann v. 
1 Charlotte-Mecklenburg Board of Education, 
I 242 TP... -SUpp. 667 (19565). 

  

  

In affirming, this Court of Appeals held: 

vies SO long a8 the boundaries are not 

rawn for the purpose of maintaining racial 
} segregation, the School Board is under no 

constitutional requirement that it effectively 
1 and completely counteract all the effects of 
| segregated housing patterns Swann vs. 
BR Charlotte-Mecklenburg Board of Education, 
| 269 7. 28. 29. (1566). 

  

  

| 1As found by the District Court, this School Board operated 

pursuant to the understanding of the law. It was not alone as 

| evidenced by the many conflicting and inconsistent opinions of 

|| the various district courts, courts of appeal and the Supreme 
de 

Fos Court. 

 



  

GISTITLOT wn
 

O Hi
 

ct
 

r
s
 

o Notwithstanding the express holding 

fered a plan for Hh
 

O 

August 15, 1965, the District Court found that the Board had 

acknowledged its affirmative duty to desegregate pupils, teachers, 

principals, and staff members at the earliest possible date and 

had dramatically exceeded its goal in desegregating former 
  

all black faculties. The plan forithe 1970-71 school year 

(1)
 

x Q MD
 

od
 

0 ()]
 

of
 

; 
4 5 ® OQ
 

(()
) wn
 

(0)
 

0
)
 H ® QQ
 

0 
} 

ct
 

-
 O oh
 3} iccomplished by any major urban area 

restructuring of attendance lines which accomplished a remarkable 

degree of desegregation, placing 68 percent of the black students 

in predominantly white schools. This offered performance so far 

|| exceeded the performance of any other major urban school system 

Ne, meee 
BATE RT | that it was inconceivable that the effects of the former 

| system" would not be removed by such a plan. The District Court 

| engrafted upon this plan the feature of satellite zones and 

resulting extensive long distance cross busing, thereby resulting 

in the most sweeping and extreme desegregation order entered by 

any district court affecting a major urban area of this nation. 

| The Court of Appeals for the Fourth Circuit, on appeal, 

1 by opinion dated May 26, 1970, (431 FP. 2&. 138) vacated the 

1 Judgment of the District Court and remanded the case for further 

proceedings, primarily with reference to the question of "reasonabl 

ness" as expressed in the opinion of this Court. 

| On August 3, 1970, the District Court held that its 

|| order of February 5 was reasonable and ordered implementation 

{| thereof, 

| The Supreme Court of the United States, in holding the 

Hi District Court's order in compliance with the Constitution, 

stated: 

 



  

  
  

  

  
  

"These cases present us with a problem of 

defining in more precise terms than hereto- 
fore the scope of the duty of school 
authorities and district courts in 
implementing Brown I and the mandate 
to eliminate dual systems and establish 
unitary systems at once. Meanwhile, 
district courts and courts: of appeal 
have struggled in hundreds of cases with 
the multitude and variety of problems 
under this Court's general directive. 
Understandably, in an area of evolving 
remedies, those courts had to improvise 
and experiment without detailed or specific 
guidelines. This Court, in Brown I, 
appropriately dealt with the large 
constitutional principle; other federal 
courts had to grapple with the Zlinty, 
intractable realities of day-to-day 
implementation of these constitutional 
commands. Theilr efforts of necessity 
embraced a process of "trial and error 
and our effort to formulate guidelines 
must take into account their experience." 
Swann v. Charlotte-Mecklenburg Board of 
Education, Supreme Court of the United 

States, Nos. 281 and 349, Apr. 20, 1971, 
ati 'De 2, 

  

  

In NorthcCross Vv. Board of Bducation, 396 U.S. 19 (1969), 
  

the Chief Justice of the United States Supreme Court recognized 

that it was high time that the Supreme Court came to grips with 

the many problems resulting from the unsettled state of the law 

with reference to the creation of a unitary system. These 

acknowledgments by the Supreme Court so clearly demonstrate the 

confused state of the law with reference to desegregation, distript 

courts, courts of appeal and school boards did not and could not 

know the obligations imposed by the Constitution. 

Notwithstanding the Board of Education could not have known 

what was expected of it, it operated its system in good faith 

pursuant to the directives of the federal courts and exceeded 

the performance of any school board whose actions had: been 

reviewed in the appellate court decisions. To award costs 

against this school system would clearly be contrary to the 

principles of equity, particularly where it is believed that the 

plaintiffs have not advanced and are not expected to advance any 

of these costs. 

 



: p A SE 

  

- = i III'S dT A JS Tia Th VTA ep oy 7d AN OY 
{Hl WHEREFORE, the appellants and cross 

pray that appellees'and cross appellants' motion for costs be 

denied. 

Respectfully submitted this the 17th day of May, 1971. 

  

William J. Waggoner 
H Waggoner, Hasty and Kratf 

1 723 Law Building 
| Charlotte, North Carolina 

" Attorneys for Appellants and 
Cross Appellees 

b 

| 
| 
i 

{ 

       



  

bY 
- 

i 

| 
| 
|} 

| 
i 

This is to certify that 

going Response in 

Motion for Costs 

in the United States 

to said parties as 

CRDM TO TOAMD 
Lone JO a8 
  

4 mail, post 

follows: 

Julius 1. Chambers 

Chambers, Stein, 
White House Inn 

Charlotte, North Carolina 

Nabrit, TIT 

Circle 

New York 

ephen J. Pollak 
4 15th Street, 
shington, D. C. 

N.W. 

dee 
- 
~ 
- 

a 

This the 1¥th day of May, 1971. 

Py tam tin T are 

Ferguson & Lanning 

a.Gldressec CQ [||6f04c220-2490-4262-9589-e1d8dbb6a1f9||]