Defendants' Application for Order

     [||f342466d-853a-459a-a173-36d0691fc870||] IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION 

MRS. ROBERT LEE MOORE, et al, 

Plaintiffs, 

VS. Civil Action No. 1974 

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CHARLOTTE-MECKLENBURG BOARD ) 

OF EDUCATION and WILLIAM C. SELF, ) 

Superintendent of Charlotte-Mecklenburg ) 

Schools, ) 

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) Defendants. 

DEFENDANTS' APPLICATION FOR ORDER 
  

NOW COME the defendants and respectfully show to the Court: 

1. That this Court has heretofore directed these defendants to 

put into operation and effect certain plans and programs relating to the 

assignment and reassignment of pupils in the Charlotte-Mecklenburg 

public schools, in an action now pending in this Court entitled James E. 

Swann, et al, v. Charlotte-Mecklenburg Board of Education, et al. 
  

  

2. That in order for the defendants to put such plans and . 

programs into operation and effect, it will be necessary for the defendants 
compulsorily to require large numbers of pupils, because they are white 

children, to attend schools other than those which they now attend, and it 

will likewise be necessary for the defendants compulsorily to require 
large numbers of pupils, because they are Negro children, to attend 

schools other than those which they now attend. 

3. That the plaintiffs, in their complaint herein, have asserted 

that such actions and requirements by the defendants will violate certain 

statutes enacted by the General Assembly of North Carolina, General 
Statutes of North Carolina, Section 115-176.1, and by the Congress of the 

United States, 42 U.S.C. 2000c(b) and 42 U.S.C. 2000c-6(a), which 

statutes are more particularly set forth in plaintiffs' complaint. 

4, That upon the basis of the said statutes, among other things, 

and their asserted conflict with the actions which this Court has directed 

the defendants to take, the Superior Court of Mecklenburg County, North 

Carolina, has restrained and enjoined the defendants from taking such 

actions. 

5. That if the actions which this Court has directed the 

defendants to take are required by the Constitution of the United States, as 

the defendants understand this Court to have ruled in directing such actions,   
 



      

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then the aforesaid statutes conflicting with this Court's ruling are also in 
conflict with the Constitution of the United States. 

6. That the defendants do not know where the law rightly and 

truly is upon this conflict, and in an effort to resolve this dilemma, the 
‘defendants respectfully call upon the Court for an injunctive order 

enjoining and restraining the enforcement, operation and execution of the 
aforesaid statutes, and any action by State or Federal officers in the 

enforcing or executing or carrying out of said statutes, the ground of 

such injunctive order being the unconstitutionality of the said statutes. 

7. The plaintiffs in the Swann case now seek to enjoin the 

enforcement of State court order which would have the effect of enjoining 

the enforcement and execution of said state statute on the grounds of its 

supposed unconstitutionality, which must be passed upon by a three-judge 

district court pursuant to 28 U.S.C. 22 81 et seq. 

8. The desegregation order of this court in the Swann case 

does not effectively charge the defendant Board of Education with the 

daily task of going forward with plans for implementation of the Court 
directed plan; rather it specifies results to be accomplished on days 

certain, The order of the Superior Court specifically and directly pro- 

hibits any further action by the Board of Education with reference to 

implementation of the Court directed plan. The defendant Board of 

Education is therefore unable to proceed unless and until the order of the 

Honorable Frank Snepp is vacated, modified or dissolved. By virtue of 

removal, the Superior Court Judge is without power to take such action, 

9. The United States District Court of the Western District of 
North Carolina is the only court that can resolve the defendants' dilemma 

by modifying, amending or vacating such order, To do so, in view of the 

plain meaning of the North Carolina General Statute 115-176.1, the 

United States District Court would be required to hold the North Carolina 
statute unconstitutional or inapplicable. In view of the action of this 

Court in the Swann case in convening a three-judge court for this very 

purpose, the North Carolina statute cannot be considered inapplicable. 

10. The defendants are not privileged to ignore any order 

issued by any court until such time as such orders may be lawfully 

modified, vacated or reversed. It appears that the most reasonable action 

would lie in bringing this matter on for hearing before a threes judge 

court pursuant to 28 U.S. C. 22 81 et seq. 

11, In view of the fact that any relief to the defendants from the 

conflicting orders of this Court and of the Superior Court of Mecklenburg 

County, North Carolina, will involve consideration by the District Court 
of the constitutionality of said State statute and if same is determined to 

be unconstitutional, the issuance of restraining order in connection there- 

with, theh only a three-judge court may properly proceed.   
 



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WHEREFORE, the defendants respectfully request the convening 

of a three-judge district court to pass upon the constitutionality of North 

Carolina General Stamute 115-176.1 and 42 U.S.C. 2000c(b) and 42 U.S, C. 

2000 c - 6(a) and further to pass upon the issuance of any interlocutory or 

permanent injunction restraining the enforcement, operation or execution 

thereof, 

Respectfully submitted this 2nd day of March, 1970, 

  

William J. Waggoner 

Weinstein, Waggoner, Sturges, Odom 

and Bigger 

1100 Barringer Office Tower 
Charlotte, North Carolina 

  

Benj. S. Horack 
Ervin, Horack and McCartha 
806 East Trade Street 

Charlotte, North Carolina [||f342466d-853a-459a-a173-36d0691fc870||]