Fourth Circuit Court of Appeals Judgment

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Fd 2 me 
- - yo. 4 J 

ry eur) T Hy 1 ol] 1d a [Ae ats ™ \rgued November 1, 1965. Decided _kLCA-ten 

  

Before Haynsworth, Ch 

  

l hes Y AEE d Sobeloff, Boreman, x J 

Bryan and J. Spencer Bell, Circuit Judges, sitting 

  

Lb } 1 Fa \ yoo PY Te po 
J. LeVonne Chambers (Conrad O. Pearson, Jac] Kk Greenberg 

and Derrick A. Bell, Jr., on brief) for Appellants, and 
- | a! 

  

i 

pd 
Al 

 



HA YNSWORTH, Chief Judge: 

  

In this school case, the plaintiffs have appealed 

+} AT 4 Be rn ep lee mel Ye PAA he denial of certain affirmative re elief which they 

sought in the District Court. We think the District Court's 

| disposition of the matter was co 

Prior to 1962, the School Board had purported to 

were affirmatively made under 

that Act, school assignments were controlled by a system of 

dual attendance zones, a method of assignment which is clearly 

unconstitutional. In 1962, however, the School Board affirma- 

tively resolved to do something about it. 

Coincident to the adoption of a school construction 

program, involving the expenditure of $30,000,000 over a 

five-vear period, to replace old and inadequate buildings and 
Y ’ on . 3 

to care for areas of rapidly expanding school population, the 

School Board adopted a plan of single school zoning. The 

rezoning was to be accomplished over a period of years, however, 

J \ and coordinated with the construction program so as to avoid, 

wherever possible, multiple pupil transfers and general 

rearrangement of the attendance zones. 

For the school year 1962-1963, such attendance zones 

were establishe for two schools only. For the next year, 

1963-1964, twelve re schools were zoned, making a total of 

fourteen. In 1964-19¢ " 1 the zoned schools rose 

forty-three, in the : 1965-1966 ninety-nin 

yf the one hundred and nine school the system had been 

zoned. 

 



  

rity in a particular school to transfer to a school in 

1 Tad - x i -  ) id tw — dem : : : = his race was in the majority. Later, this right of 

made available to all pupils, so that, as applied, 

TE Yor ~~ IT - ta evs] - TIN 4 ray. +ho i : vy very pupil in the schools, whatever the basis of his initial 

assignment, has an unqualified right of transfer to any other 

school in the system, subject only to space limitations in the 

~ school to which transfer is sought. In pract 

ace limitation has not proved 

an obstacle in the effective exercise of the right. 

jer the geographic zoning of the ninety-nine 

year 1965-1966, 1,955 Negro pupils 

were initially assigned to schools in which white pupils were 

predominant. Ninety-one of those exercised their transfer 

rights and were retransferred to schools of their choice which 

were largely attended by Negroes. Two hundred and sixty-two 

Negro pupils exercised their right to transfer from schools 

attended entirely or predominantly by Negroes to schools Lie J 

populated principally by whites. Thus, in the school year 

1964-1965, 2,126 Negroes actually attended schools in which 

white pupils constituted the majority, or a substantial 

proportion of the school's population. 

Three hundred and ninety-six white children were 

lly assigned under the geographic zoning plan to schools 

Tal ~ dn -y yf P| \ : 3 fg - i 

n Negro pupils constituted a majority of the population. 

: % ~ 7 ~ oO +r 11 ~ J - vy " -~ + ~ 

Most, but not quite all,' of those three hundred and ninety-six 4 3 

. Toyo TE TE Tada ~ ~ - 

eme rs was later held to 
    

ol EE IVER PEE AEE ~~ Po y PEO Pa | 
-ory and unconstitutional. Goss v. Board 

   



ir transfer rights and were 

  

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~ “$+ s a ~~} 3 4 “ N assigned to schools in which white students p redominated. 

The number of white schools integrated and the 

number of Negroes attending those schools has 

increased, the la .argest increase occurring in 1964-1965. It 

CERN RL 
is ‘expected R

S
 hat there will be still larger increases in the 1 bY 

coming year, particularly as a res: AA 
1 4+ 
of of the elimination of 

schools. 

The ten unzoned schools are entirely Negro. They 

rural schools, and their pupil populations are drawn from 

wide areas which overlap the established zones of other schools. 

This, of course, is not an acceptable basis for the initial 

Pils. This, the Board recognized, however, 

but it asked approval of its procedures upon the ground that 

~ 

those ten, physically inferior, schools were going to be 

it was impractical to establish 

geographic zones for them and felt 1it unwise to reassign 

students in those schools to other schools when, under the 

progressing construction program program, those same pupils would 

OO SY 1 y ee vTaoanmcoctTooned + c+ 117 
necessarily be reassigned TO S Ed WL 3 other schools after only 

a year or two. Meanwhile, it thought that the fact that each 

student attending those ten schools had an unrestricted right 

to transfer to any school of his choice was a sufficient 

approval of the Board's operation for 

~<a - 3 2 : 

the short interim period. It represented to the District 

: " 33 : % 
Court that it expected to have established geographic zones 

1 ~ + - 1 1 =  ~ 1 1 

for the assignment of pupils to all schools in the system 

        

  

1 TV. 3 y 3 AL ™ ~ Aa 

stesville City Bd. of Educ., 4 Cir., 345 F.2d 

: prey ~~ pw HP. - y 

. Durham City Bx C Educ. 4 Cir., 309 'F.28 
ya = 

- A \ ) - 

 



  

oe school year 1966-1967, and, in all events, no later 

3 
n 1967-1968. 

C i & 

Under these circumstances, we think the District 

urt's approval of the Board's procedures for the year 

1964-1965 was within the bounds of its discretion. The Board 

appears to have been busily engaged in the elimination of 

vestiges of the discriminatory system of assignments which had 

prevailed earlier. There was a rational basis for not 

undertaking geographic rezoning of those ten antiquated schools, 

and, in light of the unfettered right of transfer available 

to each of the pupils in those ten schools, delay of the one 

year in their involuntary transfer to other schools was not 

unwarranted, when the delay would avoid successive transfers 

for a substantial portion of them. 

This appeal did not reach us until the 1965-1966 

school year was well underway when transfers for that year 

would have been most undesirable. Now that the operation of 

the ten schools without geographic zoning has been eliminated 

for the school year 1966-1967, the plaintiffs' complaint 

about the operation of the ten Shached schools last year has 

become largely academic. 

The plaintiffs complain about some of the boundaries 

between established school zones. The District Judge found 

none of these complaints justified. In a number of instances, 

possible changes in the boundaries, as suggested by the 

  

of April 22, 1966 (page Bl) reported 
of resolutions fully complying with 

court and providing for the 

ng for each school in the 

  

Ri 
2] <

Q
 

 



  

ffs, would not have affected the make-up of the school 

3) O | 4 Lation, but would have operated only to transfer white 

pils from one school predominantly attended by whites to 

another school predominantly attended by whites. In the 

remaining instances, the lines drawn by the School Board were 

found to follow natural boundaries and to be entirely reasonable. 

In one instance of which the plaintiffs particularly complain, 

the line runs along the survey route of a major Belt highway 

to be constructed, running through an uninhabited area crossed 

by no other streets or roads. If the line were moved to 

McAlway Road, it would bring into the Billingsville School 

attendance zone a residential area from which there is no 

direct access to the Billingsville School, though pupils in 

that area live in very close proximity to Cotswold School, 

in which zone they now are. Clearly, the School Board's 

boundary is the more reasonable. 

On this phase of the case, the principal complaint 

of the plaintiffs appears to be that the zoning of the schools 

has not produced a greater mixture of the races than it has. 

There are still some all white schools; there are still some 

all Negro schools, and, though the number of those have been 

declining, there is no reason to think that some of them 

will not remain in the school year 1966-1967. The plaintiffs 

contend the lines should have been drawn with the conscious 

purpose of eliminating as many of such schools as possible 

and of achieving a maximum intermixture of the races. 

Whatever the Board may do in response to its own rhe 

. 
hy initiative or that of the community, we have held that there 

is no constitutional requirement that it act with the conscious 

C0 copy XR 

 



  

ose of achieving the maximum mixture of races in the 

- . 4 

ol population. The Constitution permits the Board to 

nsider natural geographic boundaries, accessibility of 

particular schools and many other factors which are unrelated 

to race. So long as the boundaries are not drawn for the 

purpose of maintaining racial segregation, the School Board 

is under no constitutional requirement that it effectively 

and completely counteract all of the effects of segregated 

housing patterns. 

The School Board does provide some permissive 

amelioration of the effects of segregated housing patterns 

through its granting of free transfer rights. No geographic 

boundaries could be drawn which would result in the geographic 

assignment of Negro pupils living in the Western and North- 

western portions of Charlotte to integrated schools, but each 

of those pupils does have an absolute right to attend an 

integrated school if he wishes under the free choice option. 

Nevertheless, the plaintiffs also complain that 

white pupils assigned to predominantly Negro schools have a 

transfer option, which has been exercised by most of them. 

A substantial number of Negroes in the same minority situation 

have exercised their options, too, and, as pointed out above, 

  

4. Wheeler v. Durham City Bd. of Educ., 4 Cir., 346 F.24 

768; Bradley v. School Board of City of Richmond, 4 Cir., 

345 F.24 310, 316; Jeffers wv. Whitley, 4 Cir., 309 F.24 

621; Evers v. Jackson Municipal Separate School District, 

5 Cir., 328 F.2d 408; Cohen v. Public Housing Administration, 

5.Cir., 257 F.24 73; Avery w. Wichita Falls Ind. School Dist., 

5 Cir., 241 F.24 230; Ripvpy vs. Borders, 5 Cir., 250 F.248 

690; Bell v. School City of Ge sary, Indiana, 7 Cir., 324 F.28 

209. See also Singleton v. Jackson Municipal Separate 

School District, 5.:Cir., 348 F.28 729. 

 



  

sy«tem of free transfers is the only means by which many 

es can attend integrated schools. Since each pupil in 

Ud
 ystem has the option, we think the existence of the right 

un
 

transfer is constitutionally permissible. 

As part of its plan, the School Board had adopted 

a resolution looking toward the "ultimate™ integration of the 

faculty and staff. The District Court required an amendment 

of that resolution to make it immediately effective. No one 

has complained of its action requiring that amendment, but 

it is appropriate to mention it here, since it tends to com- 

plete the picture of the Board's ultimate purposes and to 

show the care with which the District Court considered the 

Board's operations and plans in light of the plaintiffs’ 

complaints. 

If, in light of any development or circumstance 

occurring since the hearing of this case, any party shall 

have any reason to apply to the District Court for further 

relief or for any modification of its order, leave is granted 

for such application whether or not a certified copy of the 

judgment of this Court in lieu of its mandate has been lodged 

in the District Court. 

Affirmed. 

  

5..' Bradley v. School Board of City of Richmond, 4 Cir., 
345 F.24 310; Jeffers v. Whitley, 4 Cir., 309 F.24 621; 

Dillard v. School Board of City of Charlottesville, 

4 Cir., 308 F.2d 920, 923-24; see also Goss v. Board of 

Educ. of City of knoxville, 373 U.S. 683, 687. 

 



 
 

 
  
   

     

 
 

 
 
 
 
 

    
 

  

 
 

 
 

 
 

 
 

  

 
 
 
  
 

 
 
 
 

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