Memorandum for the United States as Amicus Curiae

     [||2f6f69d0-a49b-4982-8e6e-d4ac1d812b97||] IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

  

No. 14517 

  

Ri JAMES E. SWANN, etal., 
Plaintiffs-Appellees 

Ve 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al., 
Defendants-Appellants 

  

On Appeal from the United States District Court for 

the Western District of North Carolina 

  

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE 

  

KEITH S. SNYDER JERRIS LEONARD 
United States Attorney Assistant Attorney General 

DAVID L. NORMAN 

Deputy Assistant Attorney General 

BRIAN K. LANDSBERG 

DAVID D. GREGORY 
Attorney 

Civil Rights Division 
U.S. Department of Justice 

Washington, D. C. 20530 

 



TABLE OF CONTENTS 

INTRODUCTORY NOTE 4 ves venrnninesddssense 

DISCUSSION . ccc vvrnsssrvnsieroneenivns ® & @& 0 0 0 0 

Map - Marie Davis Zone ee oo ee 000000 00 4 

Map - Negro Elementary School Zones ....cce.. 

 



  

TABLE OF CITATIONS 

Alexander v. Holmes County Board of 
Education, 396 U.S. 19 (1969) 
(per curiam) 

Board of Education of Oklahoma City 
v. Dowell, 375 F.2d 158 (10th Cir. 
1967) 

Brewer v. School Board of Norfolk, 397 
F.2d 37 (4th Cir. 1968) (en banc) 

Brown v. Board of Education, 349 U.S. 
294 (1955) 

Carter v. Jury Commission, 396 U.S. 320 
(1970) 

Carter v. West Feliciana Parish School 
Board, 38 U.S.L.W. 3265 (U.S., 
Jan. 14, 1970) 

Ellis v. Board of Public Instruction of 
Orange County, No. 29,124 (5th Cir., 
Feb. 17, 1970) 

Felder v. Harnett County Board of Education 
409 F.2d 1070 (4th Cir. 1969) 

Green v. County School Board, 391 U.S. 
430 (1968) 

Griffin v. County School Board, 377 U.S. 
218 (1964) 

Hall v. St. Helena Parish School Board, 
417 F.2d 801 (5th Cir. 1969) 

Page 

12, 15. 16 

11 

12 

12, 15 

5,8, 11.12, 17 

 



Henry v. Clarksdale Municipal Separate 
School District, 409 F.2d 682 (5th Cir. 
1969) 

Jones v. School Board of Alexandria, 278 
F.2d 72 (4th Cir. 1960) 

Kemp v. Beasley, No. 19,782 (8th Cir., 
Mar. 17, 1970) 

Lee v. Macon County Board of Education, 
C.A. No. 604-E (M.D. Ala., April 3, 1970) 

Monroe v. Board of Commissioners, 391 
U.S. 450 (1968) 

Nesbit v. Statesville City Board of 
Education, 419 F.2d 1040 (4th Cir. 
1969) (en banc) (per curiam) 

Raney v. Board of Education, 391 U.S. 
430 (1968) 

Singleton v. Jackson Municipal Separate 
School District, No. 26,285 (5th Cir., 
Dec. 1, 1969) (en banc) (per curiam) 

Stanley v. Darlington County School District, 
No. 13,904 (4th Cir., Jan. 19, 1970) 

Turner v. Fouche, 396 U.S. 346 (1970) 

United States v. Choctaw County Board 
of Education, 417 F.2d 838 
(5th Cir. 1969) 

United States v. Greenwood Municipal 
Separate School District, 406 F.2d 
1086 (5th Cir. 1969) 

United States v. Greenwood Municipal 
Separate School District, No. 28,690 
(5th Cir., Jan. 8, 1970) (per curiam)  



United States v. Hinds County School 
Board, 417 F.2d 852 (5th Cir. 1969) 
(per curiam) 

United States v. Indianola Municipal 

Separate School District, 410 F.2d 
626 (5th Cir. 1969) 

United States v. Jefferson County Board 
of Education, 372 F.2d 836 
(5th Cir. 1966) 

United States v. Montgomery County Board 
of Education, 395 U.S. 225 (1969) 

United States v. School District 151, 
404 F.2d 1125 (7th Cir. 1968) 

Valley v. Rapides Parish School Board, 
No. 29,237 (5th Cir., Mar. 6, 1970) 

Whittenberg v. Greenville County School 
District, 298 F. Supp. 784 
(D.S.C. 1969) 

 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

  

No. 14517 

  

JAMES E. SWANN, et al., 

Plaintiffs-Appellees 

Ve. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al., 
Defendants-Appellants 

  

On Appeal from the United States District Court 
for the Western District of North Carolina 

  

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE 

  

INTRODUCTORY NOTE 

This memorandum is submitted in response to this 

Court's order of March 6, 1970, designating the United 

States as amicus curiae and inviting submission of a brief 

and participation in oral argument. The government has 

not previously participated in the case. 

 



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. 

 



  

DISCUSSION 

We think that the principal problems which this 

Court may need to address concern the adequacy of the 

desegregation plan proposed by the school board and re- 

jected in part by the district court and the appropriate 

ways in which a district court might respond to a school 

board's profferring unacceptable plans and proposals over 

an extended period of litigation. 

A. As we understand it, the school board's plan 

here relies wholly on unitary, contiguous zoning and would 

make all schools to which white students are assigned no 

more than 40 percent Negro, leaving nine elementary schools 

(enrolling over one-half of the district's Negro ele- 

mentary students) and one junior high school virtually all- 

Negro. It appears that the zones of all but two Negro 

schools adjoin zones served by predominantly white schools. 

Marie Davis Elementary School, for example, is one of the 

  

__/ See maps, infra pp. 4-5. 

 



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schools which would be nearly all-Negro (enrolling 662 

Negro and 82 white students) under the school board's 

proposed plan. Five other element ary schools (together 

enrolling 978 Negroes and 1803 whites) serve zones adjacent 

to the Marie Davis zone. Each of those schools would be 

between 62 and 73 percent white. The same would be true 

of Piedmont Junior High School scheduled to be 90 percent 

Negro while no other junior high school in the system 

would be more than 39 percent Negro. 

This plan, of course, like any other desegregation 

plan, must be measured in terms of its effectiveness when 

viewed in light of such alternatives as may be available. 

Green v. County School Board, 391 U.S. 430, 439, 441 (1968); 
  

Raney v. Board of Education, 391 U.S. 443, 447-48 (1968); 
  

Monroe v. Board of Commissioners, 391 U.S. 450, 459 (1968). 
  

Unitary zoning in our view, does go far toward disestablishing 

a racially segregated, dual school system, see Ellis v. 

Board of Public Instruction of Orange County, No. 29,124 
  

(5th Cir., Feb. 17, 1970), for it would eliminate dual, 

overlapping attendance areas, ''[t]he central vice in a 

formerly de jure segregated public school system,' United 

- Bi  



States v. Jefferson County Board of Education, 372 F.2d 
  

836, 867 (5th Cir. 1966), aff'd on rehearing, 380 F.2d 
  

385 (5th Cir. 1967) (en banc) (per curiam), cert. denied 
  

sub nom. Caddo Parish School Board v. United States, 389 
    

U.S. 840 (1967); see Jones v. School Board of Alexandria, 
  

278 F.2d 72, 76 (4th Cir. 1960). Indeed, it seems apparent 

here that many of the school board's proposed zones were 

so drawn as to maximize desegregation, and that goal is 

consistent with our view of a school board's constitutional 

obligations. Felder v. Harnett County Board of Education, 
  

409 F.2d 1070, 1074-75 (4th Cir. 1969) (en banc); United 

States v. Indianola Municipal Separate School District, 
  

410 F.2d 626, 628-29 (5th Cir. 1969); Henry v. Clarksdale 
  

Municipal Separate School District, 409 F.2d 682 (5th Cir. 
  

1969); United States v. Greenwood Municipal Separate School 
  
  

District, 406 F.2d 1086, 1092-93 (5th Cir. 1969); United 
  

States v. Greenwood Municipal Separate School District, 
  

No. 28,690 (5th Cir., Jan. 8, 1970) (per curiam); Valley v. 

Rapides Parish School Board, No. 29,237 (5th Cir., Mar. 6, 
  

1970); cf. Brewer v. School Board of Norfolk, 397 F.2d 37 
  

(4th Cir. 1968) (en banc). 

-  



Nevertheless, there are two aspects of the school 

board's plan which are not without difficulty. First, 

the school board categorically declined to consider al- 

tering any school's grade structure, ruling out such 

techniques as pairing, grouping, and clustering or using 

a '"home-base' method of combining existing facilities. 

But, as a legal matter, the courts have held that pairing 

is a legitimate tool of accomplishing complete desegre- 

gation. See, e.g., Green v. County School Board, supra, 
  

  

at 442 n.6; Board of Education of Oklahoma City v. Dowell, 
  

375 F.2d 158 (10th Cir. 1967), cert. denied, 387 U.S. 931 
  

(1967); Felder v. Harnett County Board of Education, supra 
  

at 1074; Nesbit v. Statesville City Board of Education, 418 
  

F.2d 1040, 1042 (4th Cir. 1969) (en banc) (per curiam); 

Hall v. St. Helena Parish School Board, 417 F.2d 801, 809 
  

(5th Cir. 1969); United States v. Choctaw County Board of 
  
  

Education, 417 F.2d 838, 842 (5th Cir. 1969). Accordingly, 
  

if it appears that the racial characteristics of the re- 

maining Negro schools can be eradicated by pairing, the 

decisions suggest that a school board is obligated to ex- 

plore that possibility. See Nesbit v. Statesville City 
  

-B im  



  

Board of Education, supra; Kemp v. Beasley, No. 19,782 

(8th Cir., Mar. 17, 1970); Valley v. Rapides Parish School 
  

Board, No. 29,237, at n.2 (5th Cir., Mar. 6, 1970). 

The second difficulty is with the school board's use 

of a limitation that '"[n]o school district to which white 

students are assigned should have less than 60 percent 

white student population.' Amendment to Plan for Further 

Desegregation of Schools, Nov. 17, 1969, at 2. It seems 

apparent that, wherever unitary zoning would produce a school 

which is more than 40 percent Negro, this limitation and 

a prohibition on pairing inevitably require perpetuation 

of an all-Negro school. As the district court observed, 

such a use of a "60-40 ratio is a one-way street." Opinion 

and Order, Dec. 1, 1969, at 3. While such a ratio may be 

acceptable in some circumstances, we do not believe that 

it can be used to perpetuate segregation. See Lee v. 

 



Macon County Board of Education, C. A. No. 604-E (M.D. 
  

Ala., April 3, 1970) (Conecuh County). fd 

  

__/ Three cases in which the United States is an appellant 
are now pending before this Court and involve a similar use 
of racial percentages limiting desegregation: United 
States v. School Board of Franklin City, No. 14,276; United 
States v. County School Board of Southampton, No. 14,278; 
Beckett & United States v. School Board of Norfolk, (not 
yet docketed). 

  

  

  
  

10  



B. In reviewing district courts' remedial 

decisions in school-desegregation cases, appellate courts 

should consider the function of the district court as 

enunciated in Brown II: 
  

School authorities have the primary 
responsibility for elucidating, assessing, 
and solving these problems; courts will 

have to consider whether the action of 
school authorities constitutes good 
faith implementation of the governing 

constitutional principles. Because of 

their proximity to local conditions and 
the possible need for further hearings, 
the courts which originally heard these 
cases can best perform this judicial 

appraisal. . . . 

In fashioning and effectuating the 
decrees, the courts will be guided by 
equitable principles. Traditionally, 
equity has been characterized by a 
practical flexibility in shaping its 
remedies and by a facility for adjusting 
and reconciling public and private needs. 
These cases call for the exercise of 
these traditional attributes of equity 

power. 

Brown v. Board of Education, 349 U.S. 294, 299-300 (1955). 
  

Subsequent decisions of the Supreme Court in school-desegre- 

gation cases have adhered to the principle that district 

courts have wide discretion in fashioning appropriate 

remedies. See, e.g., Green v. County School Board, 391 U.S. 
  

31 =  



430, 438 n.4, 439, 442 n.6 (1968); Griffin v. County 

School Board, 377 U.S. 218, 232-34 (1964); cf. Carter 
  

v. Jury Commission, 396 U.S. 320, 336-37 (1970); Turner 
  

v. Fouche, 396 U.S. 346, 355 (1970). Most recently, in 

United States v. Montgomery County Board of Education, 
  
  

395 U.S. 225 (1969), while not holding that school boards 

have a constitutional duty to racially balance faculties, 

the Supreme Court held that it was fully within a district 

court's discretion to require compliance with such a 

standard; and in Alexander v. Holmes County Board of 
    

Education, 396 U.S. 19 (1969) (per curiam), the Court 
  

authorized requiring implementation of educator-devised 

desegregation plans although the Court recognized that 

those plans were not the exclusive means of carrying out 

constitutional mandates. 

Yet district courts are commissioned by Brown II 
  

to give weight to "public and private considerations," 

349 U.S. at 300; Green v. County School Board, supra 
  

speaks in terms of plans that are ''reasonally available" 

and "feasible," 391 U.S. 441, 439; and Mr. Justice Harlan 

in Carter v. West Feliciana Parish School Board, 
  

38 U.S.L.W. 3265 (U.S., Jan. 14, 1970) refers to 

X30  



  

the "workability" of proposed desegregation plans. Such 

references suggest that district courts should be appropri- 

ately guided by considerations of educational soundness 

administrative feasibility, and the resources available 

to defendant school boards. 

References in the Civil Rights Act of 1964 to busing 

for the purpose of achieving racial balance, 42 U.S.C. 

§2000c-6(a), may have a similar utility. Those provisions 

are not, of course, prohibitions on either school boards 

or federal courts, for they were designed simply to 

remove any implication that the Civil Rights Act conferred 

new jurisdiction on courts to deal with the constitutionally 

unsettled question of whether school boards were obligated 

to overcome purely adventitious, de facto segregation. 

See, e.g., 110 Cong. Rec. 2280 (Congressman Cramer), 13820 

(Senator Humphrey), 13821 (Senator Javits); United States 
  

v. School District 151, 404 F.2d 1125, 1130 (7th Cir. 
  

1968); United States v. Jefferson County Board of Educa- 
  

  

tion, 372 F.2d 836, 886 (5th Cir. 1966). The references 

suggest however, that courts might carefully consider 

whether, for the purpose of achieving a precise, system- 

wide racial balance, a plan would require a school board 

«13 = 

 



involuntarily to make unreasonable increments in trans- 

portation expenditures, the number of students bused, 

distances traveled, and the like. Thus, we think that 

the question facing this Court is whether, in view 

of the district court's supplemental findings, the 

circumstances of the case, and the alternatives reason- 

ably available, the court below invoked a remedy so 

extreme as to constitute an abuse of discretion. The 

difficulty in measuring the court's decree against the 

above considerations is the absence of any other accept- 

able plan in the record. 

 



C. This Court, then, may want to consider what 

options are now available to the district court as a 

result of changes in practical considerations of 

timing. The district court, in its February 1970 

decision, considered the mandates of the Supreme Court 

in Alexander v. Holmes County Board of Education, supra, 
    

and Carter v. West Feliciana Parish School Board, supra, 
  

and subsequent decisions of this Court, Nesbit v. States- 

ville City Board of Education, supra; Stanley v. 
  

Darlington County School District, No. 13,904 (4th Cir., 
  

Jan. 19, 1970), as requiring immediate implementation of 

a desegregation plan and, therefore, directed the school 

board to implement the available plan which, in the 

Court's view, was consistent with the board's constitutional 

obligations. As a practical matter, the stays recently 

granted by this Court and the district court have obviated 

the urgency in adopting a plan occasioned by the need for 

implementation during this school year. Consequently, the 

district court now has an opportunity to increase the 

options available to it.  



We would suggest that the district court's earlier 

suggestion that the school board consult educational 

experts from the Office of Education of the United States 

Department of Health, Education and Welfare now be made 

a mandatory requirement. See Alexander v. Holmes County 
    

Board of Education, supra; United States v. Hinds County 
  

  

School Board, 417 F. 2d 852 (5th Cir. 1969) (per curiam); 
  

Whittenberg v. Greenville County School District, 298 F. 
    

Supp. 784 (D. S.C. 1969); Singleton v. Jackson Municipal 
  
  

Separate School District, No. 26,285 (5th Cir., Dec. 1, 
  

1969) (en banc) (per curiam). We think that, in the 

event that the case is remanded for that purpose, it would 

be appropriate for this Court to indicate some guidelines 

for the formulation of a new plan, including, for example, 

directives to consider techniques of drawing zone lines 

to promote rather than frustrate desegregation and 

pairing, grouping, clustering, and school consolidation; 

any new plan should also take into account such resources 

as may be available to the school board to desegregate 

its system more fully. It would be appropriate for this 

Court to provide a reasonable timetable within which a 

- 16%  



final plan is to be approved well before commencement of 

the 1970-1971 school year. Moreover, the district court 

should retain jurisdiction until such time as "it is 

clear that state-imposed racial segregation has been 

  

completely removed." Green v. County School Board, supra 

at 439. 

Respectfully submitted, 

JERRIS LEONARD 
Assistant Attorney General 

DAVID L. NORMAN 
Deputy Assistant Attorney General 

BRIAN K. LANDSBERG 

Ww], 
DAVID D. GREGORY) | 

Attorneys 

Civil Rights Division 
U.S. Department of Justice 

Washington, D. C. 20530 

  

 



CERTIFICATE OF SERVICE 
  

I hereby certify that on April 7, 1970, I 

served the foregoing Memorandum for the United States 

as Amicus Curiae on the parties to this appeal by mailing 

two copies to each of the attorneys of record named 

below by United States air mail, special delivery, postage 

prepaid: 

Julius Levonne Chambers 
216 West Tenth Street 

Charlotte, N. C. 

William J. Waggoner 
1100 Barringer Office Tower 

426 N. Tryon Street 
Charlotte, N. C. 

Benjamin S. Horack 
806 E. Trade Street 
Charlotte, N. C. 

Gaston H. Gage 
1014 Law Building 

Charlotte, N, C. 

Whiteford S. Blakney 
North gerolins National Bank Building 

Charlotte, 

MY 
DAVID D. GRE / 

Attorney 
Department of Justice 
Washington, D. C. 20530 [||2f6f69d0-a49b-4982-8e6e-d4ac1d812b97||]