Motion for Leave to File on the Merits and Brief Amicus Curiae for the National Education Association

     [||5d121c5a-fcce-479d-969e-d724164bbef3||] IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1970 

NO. 281 

JAMES E. SWANN, et al., 

Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD 

OF EDUCATION, ef dl, 
Respondents. 

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT 

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 

ON THE MERITS AND BRIEF AMICUS CURIAE FOR 

THE NATIONAL EDUCATION ASSOCIATION 

STEPHEN J. POLLAK 

BENJAMIN W. BOLEY 

RICHARD M. SHARP 

734 Fifteenth Street, N. W. 

Washington, D. C. 20005 

DAvID RUBIN 

Of Counsel: 1201 Sixteenth Street, N. W. 
SHEA & GARDNER Washington, BP. C. 20036 

734 Fifteenth Street, N. W. Attorneys for Amicus Curiae 

Washington, D. C. 20005 National Education Association 

  

  
Washington, D.C. - THIEL PRESS - 202 - 393-0625  



(i) 

INDEX | | 

  

PAGE | 

MOTION OF THE NATIONAL EDUCATION ASSOCIATION 

FOR LEAVE TO FILE BRIEF AMICUS CURIAE ON THE 

MERITS | otosiie omni convo sikerots 5 nisiorsicimios tre tin au v's 1 

BRIEF FOR THE NATIONAL EDUCATION ASSOCIATION | 
AS AMICUS CURIAE i. oi vais e vis siriois pis «sivas nn sess 5 | 

' INTEREST OF THE NATIONAL EDUCATION ASSOCIATION . . . ... 5 

| STATEMENT... tld coh lh 0h sind de Jinn +n 6 | 

| SUMMARY OF ARGUMENT... & (500id ious ab Jel dues win 10 | 
| ARGUMENT: 500, A. 30 vith, suas seivsloniid » oo 12 | 

| I. The Additional Bussing Required by the District Court’s | 

| Order Constituted a “Reasonable Means” of Desegregat- | 
| ing the Charlotte-Mecklenburg Elementary Schools ..... 12 | 

; | 

| A. COSI iin tirisisininninnsinissin nut sist siiiais vs Sin iaEse 12 
| Bo ABO: io + raisin ita AEE ES tt tes aor He vs AE 16 
| C. Distance... ........con5cvrisssssnrnsrencs 19 

D. Time it or) dn FR eR Gd Se A 21 
| RB. Traffic. veut cA ch Bs Boh suv vies 22 

F. Percentage Hhorefse csv vin shitcinsnsssrvnnnnns 22 

| II. The Court of Appeals Should Have Reviewed the District | 

Court’s Order Not by the Standard of Whether it Pro- 

vided for “Reasonable Means” for Effectuating Desegre- | 

gation, but by Determining Whether Its Modification 
Was, at the Least, Necessary To Serve a Compelling 

Governmental Interest .. , ... LoL ah doa: aah 24 

“, III. In Any Event, Where a Black Residential Area Has Been | 

Created in Part by State Action, a Compelling Govern- | 

mental Interest, at the Least, Must Be Shown To Justify 

$ a Failure To Disestablish the Racial Identity of the 
Schools Within That Area 28 ol iwi ie he re ee Te Te ee Te Ae er ee ee Ce ee, 

CONCLUSION... ro J a... 36 

 



  

(ii) 

TABLE OF AUTHORITIES CITED 

  CASES: 

Alexander v. Holmes County Board of Education, 396 U.S. 

1901960)... . sie ah 2. 2523, 21,35 

Bates v, Little Rock, 361 US. 516(1%960) ............... 27 

Bell v. Marviand, 378 US. 226 (1964) . .:.............., 31 

Board of Education of Oklahoma City v. Dowell, 375 F.2d 
158 (10th Cir. 1967), cert. denied, 387 U.S. 931 (1967) ... 33 

Brewer v. School Board of City of Norfolk, 397 F.2d 37 

(Ah Gir 1968) «ui... aie nn Caan 34 

Brown v. Board of Education, 347 U.S. 483 (1954) . ...... 2:.5,32 

Buchman vy. Warley, 245 US. 6001917) .............. 28, 30 

Burton v. Wilmington Parking Authority, 365 U.S. 715 

(1061) oo ionic dns ress sa eee 32 

Carrington v. Rash, 3530 US. 89(1965) ................. 27 

Carter v. West Feliciana Parish School Board, No. 29745 (5th 

Cit, 1970) . coos vr svss ties snninsinuivins vienna bane 3 

Cato v. Parham, 302 F. Supp. 129 (E.D. Ark. 1969) ........ 33 

Cipriano v. City of Houma, 395 U.S. 701 (1969). .......... 7 

Cooper.y. Agron, 358 U.S. 1.(1968) .......... +... ve 28 

Deal v. Cincinnati Board of Education, 419 F.2d 1387, 1391- 

1392(6th Cir. 1968)... ....... vs ie es ivi, 33 

Detroit Housing Commission v. Lewis, 226 F.2d 180 (6th 

CIE 1955) of. tos. esa eis a sane 31 

Dowell v. School Board of Oklahoma City, 244 F. Supp. 971 
(W.D. Okla. 1965), aff'd, 375 F.2d 158 (10th Cir. 1967), 
cert. denied, 337. US. 931 (1967)... . ooo vioisscnsones 32 

Eason v. Buffaloe, 198 N.C. 520, 152 S.E. 496 (1930) ....... 30 

Evans v. Newion, 382 U.S. 296(1966) ................. 32 

Favors v. Randall, 40 F. Supp. 743 (E.D. Pa. 1941) ......... 31 

Franklin v. Parker, 223 F. Supp. 724 (M.D. Ala. 1963), mod- 
ified and aff'd, adopting opinion of Dist. Ct., 331 F.2d 
ZL SWEET O6LY op i nnn a 33 

   



(iii) 

Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907 

(ND. HL. 1969). i 2h 80h 2 ih venievie widiers on ots wm s 5ls 31 

Green v. School Board of New Kent County, 391 U.S. 430 

C1968) . cove vne scan ivuliid ion, gos 11,24,25,26,27,34 

Griffin v. County School Board, 377 US. 218 (1964) ....... 16 

Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) ... 27 

Henry v. Clarksdale Munic. Sep. School District, 409 F.2d 

682 (5th Cir. 1969), cert. denied, 396 U.S. 940 (1969). . . .. 32 

Hirabayashi v. United States, 320 U.S. 81 (1943) .......... 29 

Hunt v. Amold, 172 F. Supp. 847 (N.D. Ga. 19539) .. . ...... 33 

Kemp v. Beasley, 423 F.24 851 (8th Cir. 1970) ............ 32 

Keyes v. School District No. 1, Denver, 303 F. Supp. 279, 

239.(D. Colo. 1969) -. .... i nde rt tae rs 33,34 

Korematsu v. United States, 323 U.S. 214 (1944) ......... 29 

Kramer v. Union School District, 395 U.S. 621 (1969) ....... 27 

Lee v. Macon County Board of Education, 283 F. Supp. 194 

VLD. Ala, 1008) = yes vor srsur sn rs ig si sis gir ent emus 3 

Louisiana v. United States, 380 U.S. 145 (1965) ........ uu 33 

Loving v. Virginia, 388°US..1.{1967). (uit. ia) sui Sales 2d 29 

Mapp v; Ohip, 367 US. 6431961)... 5... nivalis, 33 

Marsh v. Alabamg; 326 U.S. 301 (1946)... .... ... so oui vas 32 

McLaughliny. Florida, 379 US. 184 (1964) -......... .... 29 

Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962), cert. denied, 

371 US. 3281962)... a. La) hoe a 33 

Miranda v. Arizona, 334 UU.S. 436 (1966) ................ 33 

Monroe v. Board of Commissioners of the City of Jackson, 

9 US. 4501968)  ...... . ov cere ss ven 34 

NAACP y. Button, 371 US. 415(1963) .., . . ...... cc. on 27 

Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 

23001957)... . .. ee ine ar 34 

Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895 (1946). ...... 30 

Raney v. Board of Education of the Gould School District, 

301 US. 443(1968) ........ ..... chins. 35 

  

 



  

(iv) 

Ranjel v. City of Lansing, 293 F. Supp. 301 (W.D. Mich. 
1969), rev'd on other grounds, 417 F.2d 321 (6th Cir. 
1969), cert. denied, 397 U.S. 980 (1970) o astinie Nita a had 31 

Reitman v. Mulkey, 387 U.S, 369 (1967) roi. i:niniiins 34 

Ross v. Dyer, 312 F.24 191 (Sth Cir. 1962) ...5...5L 0c hn 33 

Shapiro v. Thompson, 394 U.S. 618 (1969) ......... 11,:16,27 

Shelley vi Kraemer, 334 US. 1 (1948) [ii 0 00am, 30, 31 

Sherbertv, Verner, 374 U.S. 398(1963). ................ 27 

Skinner v. Oklahoma, 316 US. 5351942)... ............ 27 

Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) .......... 3 

Spangler and United States v. Pasadena City Bd. of Ed., 311 

F.Supp. S01 (CD CALATI0) 0. of Sudan nb, 32,34 

Sweatt'y, Painter, 330 US. 6291950) ................. 28 

Torry 7. Ades, 3450S 481095) A LL RE 32 
United States v. Board of Education of Baldwin County, Ga., 

AB PINS GR Cr 1970) eal aa, 32 

United States v. Duke, 332 F.2d 759 (5th Cir. 1964) ....... 33 

United States v. Greenwood Munic. Sep. School District, 406 

F.2d 1086 (5th Cir. 1969), cert. denied, 395 U.S. 907 

(1980) icin. «ox obs 3 0h RET Loa 5 Gl ey ve 32 

United States.v. Guest, 383 U.S. 745 (1966) : +s « 1aivinivivie sis 32 

United States v. Manning, 205 F. Supp. 172 (W.D. La. 1962)... 33 

United States v. School Dist. 151 of Cook County, Ill, 286 

F. Supp. 786 (N.D. Il. 1968), aff'd 404 F.2d 1125 (7th 

Cir. 1068) i ite ov vs bis oovint Pains Salt Bn fiivincs Wisin vs = 8 32 

United States v. Ward, 349 F.2d 795 (5th Cir. 1965), decree 

modified ?3532 F.2d 329 (5th Cir. 1965) . . «vos vin sanv 205 33 

Valley v. Rapides Parish School Bd., 423 F.2d 1132 (5th Cir. 

FOTO vir, lo ivieitin’ 55 fs Galetti yi ies rd mnie ne 4h ih bie 32 

Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36 S.E. 

2 TIO(TABY. . -steie ore Saisiuion ss miei Bie sialon o balun 30 

Williams.v. Rhodes, 393 10.8. 23 (1968)... coo cvs vv vos 27 

STATUTE CITED 
  

SEStat 205CI000) iia 2 

   



(v) 

  

MISCELLANEOUS: 

R. Binswanger, Address before the American Association of 

School Administiators, February 12,1967 ............. 20 

B. Bloom, Compensatory Education for Cultural Deprivation 

(1965)  .. vrs cns insist vate rr 18 

B. Bloom, Stability and Change in Human Characteristics 

(1964) ............ ... PON na 18 

J. Coleman, Equality of Educational Opportunity (1966) ... 14,19 

O. Furno, “Cost of Education Index 1969-70’, School Man- 

agement (January, 1970). oi. sieves vis innit iivenn ons wns 13 

R. Havighurst, “The Neighborhood School: Status and Pros- 
pects” in Frazier, ed. A Curriculum for Children (1969) .... 20 

NEA, Department of Rural Education, Report of the National 

Commission on School Reorganization (1948) . .......... 21 

NEA Handbook 1969-70... isc i ts eden rsa 52 

NEA, National Commission on Safety Education, 1968-1969 

Statistics in Pupil Transportation (1970). . ............. 17 

NEA, Research Division, Estimates of School Statistics 1969- 

FOAIOBDY  . . . cis TT sesh rd es 17, 20 

NEA, Research Division, One Teacher Schools Today (1960)... 20 

Report to the Board of Regents of the University of the 

State of New York, Racial and Social Class Isolation in 

the Schools (1989) ii vu huis visio EG SA 19 

Swanson, “Contemporary Challenges: Monitoring Human In- 

puts into the Schools”, Fiscal Planning for Schools in 

Transition in Proceedings of the Twelfth National Confer- 
ence on School Finance (1970) ...................... 20 

U.S. Commission on Civil Rights, Racial Isolation in the Pub- 
lic Schools(1967) ...... .....v...:...; 14, 15,188.31. 35 

U.S. Office of Education, Statistics of State School Systems, 

JO6S-00 ,. i... sire stein es sss ies vss 20 

M. Weinberg, Desegregation Research: An Appraisal (2d Ed. 

1970)... here tee te cee, 15,19 

M. Weinberg, Race and Place (1967) ............. 00 vos 20 

 



IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1970 

NO. 281 

JAMES E. SWANN, et al., 

Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD 

OF EDUCATION, et al., 

Respondents. 

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT 

MOTION OF THE NATIONAL EDUCATION ASSOCIATION FOR 

LEAVE TO FILE BRIEF AMICUS CURIAE ON THE MERITS 

The National Education Association hereby moves, pursu- 

ant to Rule 42 of the Rules of this Court, for leave to file 

the attached brief amicus curiae on the merits in the above- 

entitled cause. Consent to the filing of the brief has been 

sought from the petitioners, from the Charlotte-Mecklenburg 

Board of Education and members thereof, from the Gover- 

nor and other officials of the State of North Carolina and 

from the Concerned Parents Association, respondents. Peti- 

tioners, the Charlotte-Mecklenburg Board of Education and 

the State of North Carolina have consented.! No response 

has been received to date to the other requests for consent. 

1 The written consent of the petitioners, of the Charlotte-Mecklen- 
burg Board of Education and of the State of North Carolina have 
been filed with the Clerk. 

1 

 



    

2 

The National Education Association (hereinafter NEA) is 

an independent, voluntary organization of educators open 

to all professional teachers, supervisors and administrators. 

It presently has over one million regular members, and is 

the largest professional organization in the nation. NEA was 

first organized in 1857 and was chartered by a special act 
of Congress in 1906, Its statutory purpose is (34 Stat. 805) 

to elevate the character and advance the interests of 

the profession of teaching and to promote the cause 
of education in the United States. 

The overall policies of NEA are determined by its Represen- 

tative Assembly, a body composed of approximately 7,000 

delegates representing affiliated local and state education 

associations. 

NEA has conducted detailed studies of the educational 

implications of the maintenance of dual school systems based 

upon race. It has long been convinced that racial segrega- 

tion in education adversely affects the quality of the educa- 

tion received by black students, and is harmful to white 

students as well, at least insofar as it instills false notions of 

superiority and denies such students knowledge of the multi- 
racial society in which they must live and work. Reflecting 

this belief, the NEA Representative Assembly at the June 
1969 Convention adopted a formal continuing resolution 
providing in part (NEA, Handbook 1969-70, p. 66): 

The Association endorses the decision of the U.S. 

Supreme Court in Brown v. Board of Education and 

urges compliance with subsequent federal laws and 
regulations in this area . . . . 

At the 1970 Convention, the Representative Assembly + 
adopted a more specific resolution on desegregation in the 

public schools, which provided in part: 

The National Education Association believes it is 

imperative that desegregation of the nation’s schools 

be effected. Policies and guidelines for school deseg- 

regation in all parts of the nation must be strength- 

 



3 

ened and must comply with Brown v. Board of 

Education; Alexander v. Holmes County Board of 

Education, Mississippi; other judicial decisions and 

with civil rights legislation. 

The Association recognizes that acceptable deseg- 
regation plans will include a variety of devices such 
as geographical realignment, pairing of schools, grade 

pairing and satellite schools. These arrangements 
may require that some students be bussed in order 
to implement desegregation plans which comply with 

established guidelines adhering to the letter and the 

spirit of the law. The Association urges that all laws 
of this nation apply equally to all persons without 

regard to race or geographic location. 

Complete disestablishment of formerly de jure segregated 

school systems is required by the Constitution. This case 

presents important issues concerning a school board’s respon- 

sibility to convert from a dual to a unitary school system 

and the steps which it may be required to take to accom- 

plish that conversion. As the principal association of edu- 

cators in this country, NEA can draw upon a breadth of 

experience to inform the Court as to the reasonableness of 

the requirements for desegregation framed by the district 

court in this case, when judged from the standpoint of 

educational considerations as well as the practices and 

expenditures of other school systems. Pursuant to leave 

granted by the court of appeals, NEA filed a brief amicus 

curiae in the proceedings below (see, e.g., Appendix to Peti- 

tion for Certiorari, pp. 194a, 211a) and, upon invitation, 

presented oral argument.? Pursuant to leave granted by this 

Court on June 29, 1970, NEA filed a brief amicus curiae in 

support of the petition for certiorari herein. : 

2The NEA and its State associations have participated as amicus 

curiae in other major proceedings involving issues of education and 
race. See Alexander v. Holmes County Board of Education, 396 U.S. 

19 (1969); Carter v. West Feliciana Parish School Board, No. 29745 

(5th Cir. 1970); Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969); 

Lee v. Macon County Board of Education, 283 F. Supp. 194 (M.D. 

Ala. 1968). 

 



    

4 

Accordingly, the National Education Association respect- 

fully requests that this Court grant leave to file the attached 

brief amicus curiae on the merits urging reversal of the judg- 

~ ment of the court of appeals. 

Respectfully submitted, 

STEPHEN J. POLLAK 

BENJAMIN W. BOLEY 

RICHARD M. SHARP 

734 Fifteenth Street, N. W. 

Washington, D. C. 20005 

DAVID RUBIN 

OF Consol: 1201 Sixteenth Street, N. W. 
SHEA & GARDNER Washington, D.C. 20036 

734 Fifteenth Street, N.W. Attorneys for Amicus Curiae 

Washington, D.C. 20005 National Education Association 

August 13, 1970 

-~ 

 



IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1970 

NO. 281 

JAMES E. SWANN, et al, 

Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD 

OF EDUCATION, et al., 
Respondents. 

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT 

BRIEF FOR THE NATIONAL EDUCATION 
ASSOCIATION AS AMICUS CURIAE 

INTEREST OF THE 
NATIONAL EDUCATION ASSOCIATION 

The National Education Association (hereinafter NEA) is 

an independent, voluntary organization of professional edu- 

& cators. It has over one million members, including teachers, 

supervisors, and administrators. As stated in the Associa- 

tion’s Charter, its purpose is “to elevate the character and 

* advance the interests of the profession of teachers and to 

promote the cause of education in the United States.” Both | 

the NEA and its members have a deep interest in the qual- | 

ity of education received by children of all races. NEA con- | 

siders it imperative that pursuant to Brown v. Board of Ed- | 

5 

 



    

6 

ucation, 347 U.S. 483 (1954), desegregation of the nation’s 
schools be complete and effective. NEA has recently con- 

ducted investigations of the problems of race and education 

in the school systems of Wilcox County, Alabama; Baltimore, 

Maryland; some 22 counties in Louisiana; Detroit, Michigan; 

some 30 counties in Mississippi; Hyde County, North Caro- 

lina; and the region of East Texas. NEA has also partici- 

pated as a party or as amicus curiae in several school deseg- 

regation cases, including the proceedings in the instant case 

before the Fourth Circuit and before this Court on the peti- 

tion for certiorari, and in numerous others has actively sup- 

ported efforts to secure judicial relief. 

STATEMENT 

This case is before the Court on certiorari to review the 

judgment of the court of appeals insofar as it vacated the 

order of the district court requiring implementation of that 

court’s desegregation plan for the Charlotte-Mecklenburg 

School District. The court of appeals affirmed the district 

court’s order to the extent that it required implementation 

of the desegregation plan for senior and junior high schools. 

That part of the court of appeals judgment is not chal- 

lenged in this case. It is attacked in a cross-petition for 

certiorari (No. 349) that was filed by respondents herein on 

July 2, 1970. To date, the cross-petition has not been 

granted. : 

Accordingly, we deal in this brief with the part of the 

court of appeals judgment challenged by petitioners, Le., 

that part vacating the district court’s order insofar as it pro- 

vided for the assignment of elementary school pupils and 

remanding that aspect of the case to the district court for 

further proceedings. The district court has now held hear- 

ings upon the remand and on August 3, 1970, issued a new 

order directing the School Board to put the court’s elemen- 

tary school desegregation order here involved into effect at 

the opening of the 1970 fall term unless the Board chooses 

to prepare a pupil assignment plan for use with the deseg- 

 



7 

regation plan recently proposed by a minority of the Board 

or to implement portions of both the court’s plan and the 

minority plan so as to achieve the requisite desegregation of 

the schools. (Memorandum of Decision and Order, August 

3, 1970, pp- 32-33)° 

31n pertinent part, the court’s August 3 order provided: 
As to the elementary schools: 

(a) The order entered by this court on February 5, 1970 
having been subjected to three weeks of review under the 
reasonableness test is expressly found to be reasonable, and 
the School Board are directed to put the court ordered plan 
of desegregation into effect at the opening of school in the 
fall of 1970, unless they avail themselves of some of the 
options indicated herein. 

(b) The plan for elementary school desegregation pro- 
posed by a 4/5 minority of the School Board (the Watkins 
plan) has been examined and is found to be reasonable, as 
far as it goes. It is, however, incomplete because it contains 
no plan for pupil assignment. The School Board are author- 
ized to prepare an appropriate pupil assignment plan and use 
the minority plan for elementary school desegregation instead 
of the comparable portions of the plan previously ordered by 
the court, if they so elect. | 

(c) The School Board, if they so elect, may use portions | 
of the minority plan and portions of the court ordered plan, | 
bearing in mind that the most important single element in 
the order of this court on February 5, 1970 is paragraph 16, 
reading as follows: 

16. The duty imposed by the law and by this order is 
the desegregation of schools and the maintenance of that 
condition. The plans discussed in this order, whether pre- 
pared by Board and staff or by outside consultants, such 
as computer expert, Mr. John W. Weil, or Dr. John A. 
Finger, Jr., are illustrations of means or partial means to 

that end. The defendants are encouraged to use their full 
‘know-how’ and resources to attain the results above 

-~ described, and thus to achieve the constitutional end by 
any means at their disposal. The test is not the method 
or plan, but the results. 

- (d) The Board are free to incorporate into any plan they 
may make whatever portions of the work of the Department 
of Health, Education and Welfare staff, or such parts of the 
original partial Finger plan (Plaintiffs’ Exhibit 10), which are 
consistent with their duty to carry out the order to desegre- 
gate the schools. 

We understand that the entire Memorandum of Decision and Order 

will be printed as an Appendix to the Brief for Petitioners. 

 



    

8 

The court of appeals opinion lays down several general 

principles (189a):* First, contrary to the view of the dis- 

trict court, a unitary school system does not require that 

each and every school within the system be integrated. Sec- 

ond, even so, the school board “must use all reasonable 

means to integrate” the schools within its jurisdiction. 

Third, if black residential areas are so large that not all 

schools can be integrated by using ‘reasonable means,” the 

school board “must take further steps to assure that pupils 

are not excluded from integrated schools on the basis of 

race.” Specifically, the school board should make available 

to children in identifiably black schools (that cannot be 

integrated by “reasonable means’) integrated special classes, 

functions and programs, the right to transfer, with free 

transportation, from a school with a majority of black stu- 

dents to a school with a black minority, and assignment to 

integrated schools as these children come up the educational 

ladder. 

The court of appeals explained its “reasonable means” 

test as requiring a school board to make “every reasonable 

effort” to integrate each school (189a-190a). Efforts that 

are not “reasonable” would apparently not be required so 

long as the school board takes the ‘further steps’ noted 

above. 

“Every reasonable effort” to desegregate is all that is 

required under the court of appeals opinion even though the 

black residential areas in Charlotte that are “so large” as to 

defy desegregation through the use of “reasonable means” 

are attributable to federal, state and local governmental 

action (189a). The court of appeals accepted as supported < 

by the evidence the district court’s findings that the exist- 

ing residential separation of the races in Charlotte had been 

produced in part by governmental action and that the super- 

imposition of neighborhood school lines upon governmen- 

4 (Citations are to pages in the “Appendix to Petition for Certio- 
rari, Opinions Below.” 

 



“v 

9 

tally fostered segregated neighborhoods resulted in the crea- 

tion by the School Board of segregated neighborhood schools 

(186a-187a). 

The court of appeals reviewed the different estimates of 

the district court and of the Charlotte-Mecklenburg School 

Board concerning the costs of the additional bussing required 

by the district court’s order and affirmed the district court’s 

findings on the issue, as well as on all other issues, as not 

clearly erroneous (191a-194a). This is the only discussion 

of bussing costs set out in the opinion. The court of appeals 

did observe that bussing is a permissible tool for achieving 

integration, that it is not new or unusual, that 54.9% of all 

North Carolina pupils are bussed an average daily round trip 

of 24 miles at an annual cost of over $14 million, and that 

the Charlotte-Mecklenburg School District currently busses 

approximately 23,600 pupils and another 5,000 ride com- 

mon carriers (194a). 

The court of appeals asserted that a school board should 

view the desirability of bussing to achieve integration in the 

same light as bussing is viewed in connection with other 

“legitimate improvements” in the school system, such as 

consolidating schools and locating new school facilities 

(194a). Specifically, the court listed five considerations 

that a school board should take into account in utilizing 

bussing as a tool for achieving integration: (1) the age ot 

the pupils involved, (2) the distance they must be bussed, 

(3) the time required to bus them, (4) the effect on traffic 

and (5) the cost in relation to the school board’s resources 

(194a). 

Finally, the court of appeals held that the district court’s 

order insofar as it dealt with elementary school pupils would 

require the respondent School Board to undertake additional 

bussing so extensive as to constitute an unreasonable means 

of desegregating the schools. In support of this holding 

the court of appeals reasoned that the district court’s ele- 

mentary school plan would require 9300 pupils to be bussed 

in 90 additional busses, that most of the bussed children 

 



  

  

  

10 

would be blacks in grades 1 through 4 and whites in grades 

5 and 6, that the average round trip would be 15 miles 

through central city and suburban traffic, that the district 

court’s plan would involve a 39% increase in the number of 

bussed children and a 32% increase in the size of the School 

Board’s fleet of busses, and that the number of children 

bussed would be increased by 56% and the bus fleet by 49% 
if the additional bussing for junior and senior high school 

students approved by the court of appeals were included in 

the calculations (198a). 

SUMMARY OF ARGUMENT 

1. Even if the ‘reasonable means’ test formulated by 

the court of appeals were an appropriate standard for review 

of district court desegregation orders, the court of appeals 

should have concluded in this case that the additional bus- 

sing required by the district court was a reasonable means 

to desegregate the Charlotte-Mecklenburg elementary schools. 

The cost of the additional bussing would be very small as 

compared to the resources available to the School Board, 

and the educational benefits that would be realized by black 

school children would far outweigh the relatively minor 

financial costs. The bussing of elementary school students is 

not rendered unreasonable because of their age. In North Car- 

olina 70.9% of all bussed pupils attend elementary schools. 

Furthermore, the younger a black child is when he begins 

attending desegregated schools, the greater the substantial 

educational benefits arising from a desegregated education 

will be. The average distance that the students would be 

bussed under the district court’s order is less than half the < 

average distance that students are now bussed to school by 

the School Board. The time that would be spent on the 

bus is well within generally recommended limits. The 

effects of the additional bussing on traffic would be negli- 

gible. Finally, the percentage increase in students bussed 

and busses needed is directly attributable to the failure of 

the School Board to proceed sixteen years ago to desegre- 

gate the schools with all deliberate speed. Had the appro- 

 



11 

priate steps been initiated then to achieve desegregation 

within the school system, the increment in bussing at this 

time would be modest indeed. 

2. The “reasonable means’ test is an inappropriate stand- 

ard for review of a district court desegregation order. The 

test, at least as conceived by the court of appeals, suggests 

that bussing should be considered as a tool for achieving 

school desegregation in the same light that it is considered 

“for other legitimate improvements, such as school consoli- 

dation... .”” This approach fails to recognize that the 

constitutional rights of Negro school children are at stake, 

and that school boards are charged with the duty to take 

“whatever steps might be necessary’ to desegregate dual 

school systems. Green v. School Board of New Kent 

County, 391 U.S. 430, 437-38 (1968). Green calls for a 

somewhat different standard of review, one that emphasizes 

the ‘““heavy burden’ upon the proponent of the less effec- 

tive desegregation plan before the court. This burden should 

be at least as heavy as the “compelling governmental inter- 

est” test applied in other equal protection cases involving 

fundamental constitutional rights. E.g., Shapiro v. Thomp- 

son, 394 U.S. 618, 634 (1969). The rights involved in this 

case are no less fundamental and should not be denied by 

rejection or modification of the most effective desegregation 

plan before the court unless a compelling governmental 

interest necessitates such rejection or modification. No 

compelling governmental interest was shown here. 

3. Under Green v. School Board of New Kent County, 

supra, the “heavy burden” or, as we suggest, “compelling 

governmental interest” standard applies in all cases, without 

exception, where a district court has before it a more effec- 

tive plan to desegregate a dual system than that proposed 

by the local school board. A fortiori, the test should apply 

in cases such as the one at bar. Here, as both of the lower 

courts found, the neighborhood schools that would remain 

black absent the additional bussing required by the district 

court are black as a result, in part, of governmentally caused 

residential segregation. When the School Board, under these 

 



    

12 

circumstances, insists on a “neighborhood school’ system, 

it effectively classifies pupils on the basis of race, and racial 

classifications can stand, if at all, only where they are just- 

tified by a “compelling governmental interest.” 

ARGUMENT 

I 

The Additional Bussing Required by the District 
Court’s Order Constituted a ‘“‘Reasonable Means” 
of Desegregating the Charlotte-Mecklenburg Ele- 

mentary Schools. 

The ‘reasonable means” test applied by the court of 

appeals was not in our view an appropriate standard for re- 

view of the district court’s order, but we shall assume that it 

was for the purposes of this Part I of our Argument. We 

deal in Parts II and III, infra, with what we believe the 

School Board’s minimum burden should have been to justify 

reversal of the district court’s ruling. 

It is not at all clear from the court of appeals opinion 

why the court found the additional bussing required by 

the district court’s order to impose an unreasonable bur- 

den upon the School Board. Presumably, the court applied 

the five factors that it said a school board should take into 

consideration in determining who should be bussed where. 

The only alternative analysis that may be made of the court 

of appeals opinion is that the court found the additional 

bussing unreasonable simply because it constituted too 

great a relative increase in the number of children bussed 

and in the number of busses needed to transport them. In - 

either event, in the judgment of NEA based upon the ana- 

lysis below, the additional bussing called for by the district 

court is a “reasonable means” of desegregating the schools. 

A. Costs. Perhaps the most significant among the fac- 

tors enumerated by the court of appeals is the cost of bus- 

sing in relation to a school board’s resources. In this con- 

nection, the court appears to have concentrated more upon 

 



13 

the dollars involved than upon the sufficiency of the Board’s 

resources to absorb their expenditure. 

The district court found that the additional cost to the 

School Board would amount to $672,000 during the first 

year ($186,000 of operating expense and $486,000 in capi- 

tal outlay to purchase new busses) and $186,000 for each 

year thereafter (156a-157a), that the School Board now 

spends approximately $500,000 on bussing annually, out 

of a total operating budget of $51 million, and that local 

sources (as opposed to federal and State sources) now pro- 

vide about $25 million a year to the school system. (138a- 

139a). Thus, the cost of the existing and additional bus- 

sing would be about 1.3% of the School Board’s total op- 
erating budget and about 2.7% of the local funds provided 

annually to the Board. Nationally, schools devote approxi- 

mately 4.3% of net current expenditures to transportation. 

O. Fumo, et al, “Cost of Education Index 1969-70,” 

School Management 42-43 (January, 1970). 

On remand, the district court found that the School 

Board already had 107 of the 138 busses that would be 

needed to provide the additional transportation required 
by the court’s desegregation plan for all grades, that the 

State of North Carolina had 400 second-hand busses that 

it had offered to lend without cost to school boards for 

use in 1970-71, that the School Board would face no im- 

mediate need to invest in new busses, that the School 

Board’s total budget for 1970-71 was $8 million higher 

than for 1969-70 and provided that $21.9 million was 

available for unrestricted use, and that the State, which 

has regular budgetary surpluses, pays almost all of the costs 

of operating the Charlotte-Mecklenburg school busses 

(Memorandum of Decision and Order, August 3, 1970, pp. 

18-23). In short, the additional costs involved were found 

well within the capability of State and local governments 

to bear them. See, also, the discussion at pp. 23-24, infra. 

The reasonableness of the costs here involved must also 

be measured against the value of what is being purchased. 

 



    

14 

These expenditures are not made just for transportation. 

They also buy increased educational opportunities, particu- 

larly for the black child. 

Among educators there is virtually no question that the 

quality of schooling for ghetto younsters should be up- 
graded and efforts should be made to overcome the effects 
of racial isolation. The value of desegregation in this con- 
nection was demonstrated in an extensive study prepared 

for the Office of Education (HEW). That study showed 

that the achievement of Negro children is strongly influ- 

enced by the ‘“‘educational backgrounds and aspirations of 
the other students in the school.” The study further found 

that the principal difference in the school environments of 

white and black students is “the composition of their stu- 

dent bodies.” J. Coleman, Equality of Education Oppor- 

tunity 22 (1966). 

The data collected by the Office of Education were re- 

analyzed for the United States Commission on Civil Rights. 

This re-examination confirmed the “importance of the stu- 

dent environment of the school” and showed that ‘“‘segre- 
gated Negro students are most likely attending class with 

other students of a very low social class.”” Furthermore, 

the study showed that even when the social class of the 

student and his school are held constant, there still is “an 

upward trend in average achievement level as the propor- 

tion of white classmates increases.”” Thus, improved “social 

class level of the school . . . may not be the only source of 

benefit for Negro students in desegregated situations. There 

is also evidence that the racial composition, as distinguished 

from the social class composition of the school, has an im- 

portant influence.” U.S. Commission on Civil Rights, Racial } 

Isolation in the Public Schools Appendices 40 (1967). 

This, in general, may be attributable to the better educa- 

tional atmosphere produced when ‘the majority of the 

children . . . do not have problems of self confidence due 

to race and the schools are not stigmitized as inferior.” 

Id. at 1085. 

 



15 

The most comprehensive compilation to date of the edu- 

cational effects of desegregation concluded: 

1. Academic achievement rises as the minority child 

learns more while the advantaged majority child 

continues to learn at his accustomed rate. Thus, 

the achievement gap narrows. 
* kk kk 

2. Negro aspirations, already high, are positively af- 
fected; self-esteem rises; and self-acceptance as a 
Negro grows. 

k % kX 

7. Virtually none of the negative predictions by anti- 

desegregationists finds support in studies of actual 

desegregation. 

M. Weinberg, Desegregation Re- 
search: An Appraisal 378-379 
(24 ed. 1970). 

These conclusions rest on a study of about 300 surveys of 

school desegregation. See, also, the findings of the district 

court in this case indicating that in Charlotte blacks in de- 

segregated schools perform better than blacks in all-Negro 

schools (97a-98a). 

The cost of additional bussing to achieve desegregation 

should also be measured against the cost of compensatory 

education programs that may be utilized in an effort to 

make up for the disadvantages of a segregated school. A 

review of several such programs by the U.S. Commission on 

Civil Rights indicates that they are quite expensive. A New 

York City experimental project cost $80 per junior high 

school student and up to $250 for a student in senior high 

school. U.S. Commission on Civil Rights, Racial Isolation 

in the Public Schools 123 (1967). When the program was 

broadened to include more children, the cost ranged from 

$50 to $60 per child. Id. at 124. A Syracuse, N. Y., pro- 

gram experienced expenses of $100 per child for elementary 

and junior high students. Id. at 128. The lowest cost men- 

tioned among the programs reviewed by the Commission 

was $35 per student in Philadelphia. Id. at 132. These 

  

  
 



    

16 

costs are substantially higher than the $20 per pupil cost 
for the additional bussing required by the district court in 

this case. Moreover, the results of the programs reviewed, 

insofar as achievement is concerned, were far less encourag- 

ing than those that can be expected from desegregated 

classes. Id. 128-140. 

In short, NEA’s position is that bussing costs, when in- 

curred as part of a plan for desegregating schools, cannot 

be written off as mere transportation expenses. They pro- 

vide real educational benefits to the disadvantaged young- | 

sters in the ghetto, and those children, generally speaking, 

sorely need special attention in order to mitigate the adverse 

effects of racial isolation. The financial costs anticipated 

here are reasonable enough when viewed in connection 

with the financial resources available to bear them. They 

are more reasonable still when one considers what they will 

buy in the way of educational benefits for those children 

who have yet to realize the promise of desegregated 

schools, and the greater cost of less satisfactory compensa- 

tory education alternatives. 

Finally, that it may cost money to vindicate the consti- 

tutional rights of black children in Charlotte’s elementary 

schools is no reason to leave those rights in limbo. In Sha- 

piro v. Thompson, 394 U.S. 618, 633 (1969), this Court 

held that the “saving of welfare costs” could not justify 

what would otherwise amount to a deprivation of an indi- 

vidual’s right to equal protection of the laws. The costs 

there involved were far greater than those here in issue. 

And in Griffin v. County School Board, 377 U.S. 218, 

233 (1964), the Court declared that in fashioning relief 

from continuing racial discrimination in connection with 

public education in Prince Edward County, Virginia, the 

district court might require the local authorities “to levy 

taxes to raise funds’ to operate desegregated schools. 

B. Age. Another factor considered by the court of 

appeals is the age of the students to be bussed. Among 

the findings of the district court, which were accepted by 

 



  

17. 

the court of appeals, were that 9,300 additional children 
in grades 1 through 6 would be transported (155a) and 

that travel by school bus is safer than walking to school or 

riding there in private vehicles (140a). The district court 

had earlier noted that first graders “may be the largest 

group” among the 23,600 students that are currently being 

bussed by the School Board (22a). Judge Winter, concur- 

ring in part and dissenting in part in the court of appeals, 
observed (221a-222a) that the Charlotte-Mecklenburg 
School Board busses a far lower percentage (21%) of stu- 
dents than does North Carolina as a whole (54.9%). State- 

wide, 38.7% of all enrolled students (70.9% of all bussed 

students) are bussed to elementary schools (137a). Under 

the district court’s order, a total of 43.6% of all Charlotte- 

Mecklenburg students will be bussed, and this figure includes 

substantial numbers of students bussed to junior and senior 

high schools. (186a, 138a, 157a) Thus, the percentage of 

elementary school students that will be bussed under the 

district court’s order compares favorably with the percent- 

age of elementary school students bussed statewide. 

The district court’s subsequent decision on August 3 in- 

cluded findings that currently more elementary school 

children than high schoolers are bussed in Charlotte- 

Mecklenburg and that four- and five-year olds are trans- 

ported on the longest bus routes in the system (Memoran- 

dum of Decision and Order, August 3, 1970, pp. 23-24). 

School children of all ages can be and are bussed to 

schools throughout the nation every day. During the 

1969-70 school year some 18 million children were bussed 

to public schools in America. NEA, National Commission 

on Safety Education, 1968-1969 Statistics on Pupil Trans- 

portation (1970). This amounted to approximately 39% 

of the estimated 45.5 million total public school popula- 

tion. NEA Research Division, Estimates of School S'tatis- 

tics, 1969-70 (1969). 

On the other hand, the age of the child probably has a 

crucial influence on the effectiveness of school desegrega- 

  
 



    

18 

tion. There is widespread, if not universal, recognition 

among educators that the critical years in the educational 

process are the early school years. In this formative period, 

the school system has the greatest opportunity to help the 

child develop mental discipline, appropriate social attitudes 

and fundamental skills, such as reading. See, for example, 

B. Bloom, Stability and Change in Human Characteristics 

215-16 (1964). 

For children from whom educational opportunity has 

historically been withheld, the early years are probably 

even more important. These children, as they progress 

through school, show a cumulative deficit. They often 

begin school with inadequate language skills, insufficient 

perceptual skills, shorter attention spans, and poorer moti- 

vation. With age, the child’s linguistic patterns harden. 

The gap between his reading skills and those of his middle 

class peers enlarges. By the time the child reaches the 

eighth grade he is about three years behind the grade norms 

for reading, arithmetic and a variety of other subjects. 

B. Bloom, et al., Compensatory Education for Cultural 

Deprivation 73-74 (1965).° 

As one would expect, then, the beneficial effects of 

desegregation are likely to be greatest in the lower grades. 

In Charlotte, as the district court found on remand, achieve- 

ment test scores demonstrate that the higher the grade at 

which schools are first desegregated, the greater are the aca- 

demic penalties that black children will incur (Memorandum 

> Compare the results of a survey made by the U.S. Office of Edu- 

cation reported in U.S. Commission on Civil Rights, Racial Isolation | 
in the Public Schools 14 (1967): “Negro and white students in metro- 
politan areas begin school with a noticeable difference in verbal abil- 

ity. At sixth grade, the average Negro student is about one and one- 

half grade levels behind the average white student in verbal achieve- 

ment. By the time 12th grade is reached, the average white student 

performs at or slightly below the 12th-grade level, but the average 

Negro student performs below the 9th-grade level. Thus, years of 
school completed has an entirely different meaning for Negroes 
and whites.” 

 



19 

of Decision and Order, August 3, 1970, pp. 7-8, 16). More 

generally, “those [black] students who first entered deseg- 

regated schools in the early grades do generally show 

slightly higher average scores [on achievement tests] than 

the students who first came to desegregated schools in later 

grades.” J. Coleman, op. cit. supra, at p. 331. To the same | 
effect, see M. Weinberg, op. cit. supra, at p. 58; Report to | 
the Board of Regents of the University of the State of New 
York, Racial and Social Class Isolation in the Schools 18, | 

238 (1969). Thus, if the optimum educational advantages | 

of desegregation are to be obtained, desegregation should 

begin with the youngest pupils in the system. 

In short, to the extent that the age of the children to be 

bussed to achieve desegregation is weighed in evaluating the 

“reasonableness” of the bussing, the younger the black 

child, the more he will benefit from the bussing. The 

added educational benefits of desegregation in the early 

grades more than outweigh the disadvantages, if any, that 

bussing might entail. 

C. Distance. A third factor cited by the court of ap- 
peals is the distance that the children would be bussed. 

The district court found that the average length of a one- 
way bus trip in the school system was over 15 miles, 

while the average one-way trip for elementary school stu- 

dents under the court’s plan would be less than 7 miles, 

which distance was obtained by the method used by the 

county school bus superintendent, i.e., taking the straight 

line mileage and adding 25% (153a, 183a). On remand, the 

district court found that four- and five-year-olds today travel 

from 7 to 39 miles, one way, on the School Board’s busses 

(Memorandum of Decision and Order, August 3, 1970, at 

p.-¥7). 

The matter of distance, of course, involves for at least 

some children the question whether they are to be schooled 

in the “neighborhood” or at some more removed location. 

From the educator’s viewpoint, the neighborhood school 

 



    

20 

has both advantages and disadvantages. See R. Havighurst, 

“The Neighborhood School: Status and Prospects,” in Frazier 

ed., A Curriculum for Children 73-76 (1969) and R. Bins- 

wanger, Address before the American Association of School 

Administrators, February 13, 1967. Certainly, as the district 

court observed (22a), it is far from an unquestioned virtue. 

One of the foremost authorities in the field is of the view 

that “there cannot be a really good all-Negro neighborhood 

school in the United States today.” Havighurst, op. cit. 

supra, at 82. See, also, M. Weinberg, Race and Place 

89 n.5 (1967), and the discussion at pp. 14-15, supra. 

It must be emphasized in this respect that the remedy 

fashioned by the district court is not much different than 

the remedy employed earlier by school authorities in the 

nation-wide effort to eliminate the educational depriva- 

tions of rural America. As a result of that effort the num- 

ber of single-teacher schools was reduced from 156,066 in 

1927-28 to 6,500 in 1965-66. NEA Research Division, 

One Teacher Schools Today 9 (1960); U.S. Office of Edu- 

cation, Statistics of State School Systems, 1965-1966 4. 

Similarly, the number of school systems was reduced from 

127,422 in 1931-32, to 18,904 in 1969-70. NEA Re- 

search Division, Estimates of School Statistics, 1969-70 5- 

6 (1969). That consolidation eliminated nearby schools 

for many families and required extensive bussing of chil- 

dren to the villages. It involved costs and inconvenience 

and aroused resistance over the loss of locally-based schools. 

But in terms of the improved educational opportunity 

provided the students, it was worthwhile and construc- 

tive. In fact, the most important effect of school consol- 

idations was the educational gains produced by bring- 

ing together laboring class children of the farms and middle- 

class children of the village. Swanson, “Contemporary 

Challenges: Monitoring Human Inputs into the Schools,” 

Fiscal Planning for Schools in Transition in Proceedings of 

the Twelfth National Conference on School Finance 80-84 

(1970). 

 



21 

D. Time. A fourth factor mentioned by the court of 

appeals is the time required to bus the students to and 

from school. The district court found that the average one- 

way bus trip under the district court’s elementary school 

plan would take “not over 35 minutes at the most” whereas 

the average one-way bus trip in the Charlotte-Mecklenburg 

school system today takes ‘nearly an hour and a quarter” 

(153a). 

The generally recognized limits on the amount of time 

that a student should be bussed were formulated in 1948 

by the National Commission on School District Reorganiza- 

tion. That Commission laid down the minimum staff and 

enrollment levels which are consistent with the educational 

interests of the children. The Commission, however, coun- 

seled school planners that: 

In more sparsely populated areas, the need to 
transport children to and from school makes it de- 
sirable to modify these standards. It may be detri- 
mental to the physical and emotional well-being of 
children to keep them on the road for long periods; 
thus, over-zealous efforts to set up desirable situa- 
tions for the provisions of a good educational pro- 
gram may seriously undermine one of its most im- 
portant elements. The best information available 
indicates that: 

1. The time spent by elementary children in 
going to and from school should not exceed 
45 minutes each way. 

2. The time spent by high school pupils in going 
to and from school should not exceed an hour 
each way. 

NEA, Department of Rural Education, 

Report of the National Commission on 
School Reorganization 81-82 (1948). 

No development since these standards were formulated sug- 

gests that they are outmoded. The bussing prescribed by 

the district court is well within them. 

 



    

22 

E. Traffic. Lastly, the court of appeals mentioned the 

effect of the bussing on traffic. The court noted that the 

bussing required by the district court would run through 

central city and suburban traffic and that (193a) “large 

numbers of school buses themselves generate traffic prob- 

lems that only experience can measure.” Judge Sobeloff, 

in his separate opinion dissenting in part and concurring in 

part, found in the record “no evidence of insurmountable 

traffic problems due to the increased bussing.” He also 

doubted whether the additional busses would have very 

much of an impact in an area in which estimated automo- 

bile trips per day approximate 870,000. The district court 

found that the School Board already operates 279 busses 

within the school district and that the court’s desegregation 

plan would involve “no serious extra load on downtown 

traffic because there will be no pickup and discharge of 

passengers in downtown traffic areas” (142a, 143a).6 

F. Percentage increase. The additional bussing of ele- 

mentary school pupils required by the district court’s order 

60n remand, the district court made findings which clearly estab- 

lish that the traffic problem is an unreal one (Memorandum of the 

Decision and Order, August 3, 1970, at pp. 24-25): 

The county has over 160,000 passenger vehicles and nearly 

30,000 trucks registered in it. It is estimated that the total 

number of automobile trips in the county daily other than 

truck trips is over 869,000. Traffic is heavy in most part of 

the county. Since the so-called “cross-bussing” of the Finger 

plan or the minority plan will not contemplate pick up and 

discharge of pupils in the central business area, the busses 

added by the Finger plan or the minority Board plan will 
provide very little interference with normal flow of traffic. 

School busses are no wider than other busses (the law requires 

that this be so); they already use all the major streets and 

traffic arteries in the county and city every school morning 

of the year. There is no evidence to show that adding 138 

school busses to the volume of existing traffic will provide 

any such impediment as should be measured against the con- 

stitutional rights of children. It would also appear that a 
school bus transporting 40 to 75 children should reduce traf- 

fic problems by cutting down on the number of automobiles 

that parents might otherwise be driving over the same roads. 

 



23   
does represent a substantial percentage increase in the total 

number of pupils bussed by the school board (39%) and 

in the total number of busses needed to transport them 

(32%). This increase is substantial, however, simply because 

the district court’s order in one sweep invoked measures 

that in large part should have been taken over the last six- 

teen years. Had the school board begun in the 1954-55 school 

year to desegregate its elementary schools by providing each 

year 1/17th of the additional bussing called for by the | 

district court, so that 100% of such bussing would be pro- | 

vided for the first time in the 1970-71 school year, the per- | 

centage increase from 1969-70 to 1970-71 in the number | 

of students bussed and the number of busses needed for 

them would be only 1.69% and 1.45% respectively. The 

capital outlay for new busses during the period would have 

been only $28,000 per year, including 1970-71. The lump- 

sum capital outlay that would be required now by the dis- 

trict court’s order if new busses had to be purchased 

approaches a half million dollars simply because outlays of 

capital to achieve desegregation as required by law were | 

not forthcoming during the previous sixteen years. A 

The sizeable percentage increase in pupils bussed and 

busses needed resulting from the district court’s order is 

thus directly attributable to the failure of the School Board 

to desegregate the schools during the years that have elapsed 

since 1954. Furthermore, “the actions of the present school 

board and others, before and since 1954, in locating and 

controlling the capacity of schools so that there would usu- 

ally be black schools handy to black neighborhoods and 

white schools for white neighborhoods’ (87a) have affirma- 

tively added to the problem. To hold with the suggestion 

of the court of appeals that additional bussing may not be 

a “reasonable means” of achieving desegregation where it 

involves too “extensive” an increase is to reward school 

districts for delaying desegregation—and augmenting sepa- 

rate facilities in the interim—to the point where such exten- 

sive increases are necessary. The size of the percentage 

 



    

24 

increases in bussing simply does not warrant consideration 

in the “reasonableness” equation. 

In sum, NEA believes the desegregation plan for elemen- 

tary schools ordered by the district court was a reasonable 

and effective means of desegregating this portion of the 

school system. Since there was no more effective deseg- 

regation plan before the district court, its order should 

have been affirmed by the court of appeals. Green v. 

School Board of New Kent County, 391 U.S. 430 (1968). 

Accordingly, this Court should reverse the ruling of the 

court of appeals and reinstate the district court’s order. 

However, in so doing the Court should not embrace the 

“reasonable means” test as a standard for review of deseg- 

regation orders. We turn now to a consideration of that 

issue. 

IIL. 

The Court of Appeals Should Have Reviewed the 
District Court’s Order Not by the Standard of 

Whether It Provided for ‘Reasonable Means” for 
Effectuating Desegregation, but by Determining 

Whether Its Modification Was, at the Least, Neces- 

sary To Serve a Compelling Governmental Interest. 

The court of appeals’ opinion appears to draw a line be- 

yond which a district court may not go in providing effec- 

tive relief to remedy the established unconstitutional defi- 

ciencies of dual school system: A district court may re- 

quire whatever desegregation may be achieved by “‘reason- 

able means,” but where the remnants, no matter how 

large, of a dual school system cannot be disestablished by 

“reasonable means”, they need not be disestablished at all. 

We have demonstrated above that the additional bussing of 

elementary school pupils required by the district court 

constituted a “reasonable means’ of achieving desegregation 

and so met the new test formulated by the court of appeals. 

We argue here that that test itself is an improper one. 

 



25 

The obligation to desegregate a dual school system may 

well be an absolute duty that may not be avoided in any 

part on any ground. We do not, however, reach that ques- 

tion, nor need this Court in order to reverse the decision of 

the court of appeals. At the least, one who seeks to over- 

turn or modify an effective desegregation plan ordered by a 

district court must demonstrate that such a reversal or mod- 

ification is necessary to serve a compelling governmental 

interest. No such interest was shown here. 

What are “reasonable means’ to achieve desegregation 

and what are not may all too easily be determined with- 

out sufficient recognition that the fundamental and imme- 

diate rights of thousands of black school children to an 

education in desegregated public schools is at stake. Alex- 

ander v. Holmes County Board of Education, 396 U.S. 19, 

20 (1969). The court of appeals in this very case made just 

such an error. It indicated that bussing, as a means of achiev- 

ing desegregation, should be viewed “in the light” that it is 

viewed “for other legitimate improvements, such as school 

consolidation and the location of new schools” (194a). Al- 

though a school board may decide against a proposed 

school consolidation or particular location for a new school 

on the ground that the proposal would require additional 

bussing that the school board, rightly or wrongly, deems - 

undesirable, the constitutional rights of a large minority of 

the school population to a desegregated education cannot 

be made to rise or fall on a similarly nice policy judgment. 

This Court in Green v. School Board of New Kent County, 

391 U.S. 430, 436, 437-38, 442 (1968), asserted that to 

vindicate the ‘constitutional rights of Negro school chil- 

dren” school boards are ‘clearly charged with the af- 

firmative duty to take whatever steps might be neces- 

sary to convert a unitary system in which racial discri- 

mination would be eliminated root and branch” and to 

“fashion steps which promise realistically to convert 

promptly to a system without a ‘white’ school and a ‘Negro’ 

school, but just schools.” Green did not limit this duty to 

taking only the action that a school board (or court) might 

 



    

26 

consider reasonable in order to obtain other legitimate edu- 

cational improvements, such as consolidating old schools or 

locating new ones. Green called for “whatever” steps may 

be necessary. 

In addition, the ‘“‘reasonable means’ standard is exceed- 

ingly vague and openly invites circumvention of the consti- 

tutional right of black children to equal educational oppor- 

tunities. As Judge Sobeloff observed below (212a-213a): 

Handed a new litigable issue—the so-called rea- 
sonableness of a proposed plan—school boards can 
be expected to exploit it to the hilt. The concept 
is highly susceptible to delaying tactics in the 
courts. Everyone can advance a different opinion 
of what is reasonable. Thus, rarely would it be 
possible to make expeditious disposition of a board’s 
claim that its segregated system is not ‘“‘reasonably” 
eradicable. Even more pernicious, the new-born 
rule furnishes a powerful incentive to communities 
to perpetuate and deepen the effects of race separa- 
tion so that, when challenged, they can protest that 
belated remedial action would be unduly burden- 
some. 

Green v. School Board of New Kent County, supra, estab- 

lishes, or at least points to, a different standard by which 
the appropriateness of a desegregation plan ordered to be 
implemented by a district court should be measured. 
Where two plans for desegregation are before a district 

court, Green requires that the proponent of the plan that 

does the less effective job of desegregating the schools 
bear a “heavy burden” to justify its implementation. 
A fortiori, where a school board challenges a district court 

order requiring implementation of the more effective plan, 

that is, the plan that promises to work best now, it should 
bear a heavy burden to show why the more effective plan 

should not be carried out. 

We read this language in Green as requiring a school 

board to carry a burden at least as heavy as this Court 
has imposed 1n equal protection cases involving fundamen- 

tal constitutional rights arising in contexts other than racial 

discrimination, i.e., rejection or modification of the more 

 



27 

effective desegregation plan must be shown to be necessary 

in order to serve a compelling governmental interest. 

In Shapiro v. Thompson, 394 U.S. 618, 634 (1969), 

this Court struck down a welfare benefit waiting period be- 
cause it served to penalize the exercise of the constitutional 

right to travel among the several states and had not been 

“shown to be necessary to promote a compelling govern- 
mental interest.” The Court recognized that the waiting- 
period provisions resulted in a considerable savings of wel- 
fare costs, but this interest was not sufficiently compelling 

to justify inhibiting the exercise of constitutional rights. 

In Williams v. Rhodes, 393 U.S. 23, 24, 31 (1968), Ohio elec- 

tion laws making it “virtually impossible” for a new politi- 
cal party to obtain a place on the ballot to choose electors 

for the Presidency and Vice Presidency of the United States 

were invalidated. The rights of individuals to join together 

to advance their political beliefs and effectively to cast 

their votes were adversely affected by the Ohio statutes. 

This Court, quoting NAACP v. Button, 371 U.S. 415, 438 
(1963), held that only a compelling state interest, which 

Ohio had failed to show, could justify the infringement. 

Sherbert v. Verner, 374 U.S. 398, 406 (1963), held that a 

state could not disqualify a person for unemployment ben- 

efits because she was unavailable to work Saturday where 

her unavailability was due to the exercise of her religious 

beliefs. The Court considered “whether some compelling 

state interest . . . justifies the substantial infringement of 

appellant’s First Amendment right” and found none. See, 

also, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); 

Carrington v. Rash, 380 U.S. 89, 96 (1965); Kramer v. 

Union School District, 395 U.S. 621, 626-27 (1969); 

Cipriano v. City of Houma, 395 U.S. 701, 704 (1969); 

Harper v. Virginia Board of Elections, 383 U.S. 663, 670 

(1966); Bates v. Little Rock, 361 US. 516, 524 (1960). 

In this case the no less fundamental rights of Negro school 

children to be freed completely of the disabilities of a dual 

school system are in issue. Alexander v. Holmes County 

Board of Education, 396 U.S. 19, 20 (1969). These are 

rights that are personal to each black child assigned to a 

 



  

28 

segregated school. Sweatt v. Painter, 339 U.S. 629, 635 

(1950). A black child assigned to a black school such as 

Double Oaks or Lincoln Heights (126a, 127a) is afforded 

little consolation—and no vindication of his personal and 

immediate constitutional rights—by the fact that the School 

Board may afford other students an integrated education. 

In these circumstances a compelling governmental interest 

must be shown to justify school assignments that would 

infringe upon such rights by failing to desegregate the 

Charlotte-Mecklenburg elementary schools as effectively as 

the district court’s order. 

The question is how far the School Board must go to see 

to it that the constitutional rights of black school children 

are in fact realized. The answer, in our view, is that the 

School Board must go as far as it is necessary for it to go 

to eliminate the racial identity of schools within the system. 

It may stop short, if at all, only where a compelling govern- 

ment interest so warrants. The governmental interests 

involved in this case, both educational and financial, have 

been reviewed in detail in Part I of this Argument. They 

may not fairly be described as “compelling.” 

III. 

In Any Event, Where a Black Residential Area Has 

Been Created in Part by State Action, a Compell- 
ing Governmental Interest, at the Least, Must Be 

Shown To Justify a Failure To Disestablish the 

Racial Identity of the Schools Within That Area. 

Certainly, where a classification is based upon race, 

the need to show a compelling governmental interest is 

underscored. Cooper v. Aaron, 358 U.S. 1, 16 (1958), re- 

jected the contention that school desegregation in Little 

Rock, Arkansas, be postponed because otherwise civil vio- 

lence and disruption, albeit inspired by state officials, 

would ensue. The Court observed that as far back as 

Buchanan v. Warley, 245 U.S. 60, 81 (1917), it had ruled 

that a zoning ordinance separating residential areas by race 

   



29 

could not be defended on the grounds that it would pro- 
mote public peace by preventing race conflicts. See, also, 

Loving v. Virginia, 388 U.S. 1, 11 (1967); McLaughlin v. 

Florida, 379 U.S. 184, 192 (1964); Korematsu v. United 

States, 323 U.S. 214, 216 (1944); Hirabayashi v. United 

States, 320 U.S. 81, 100 (1943). A classification based 

upon race is precisely what is in issue here. 

Only additional bussing of the magnitude required by 

the district court can effectively eliminate the racial iden- 

tity of the elementary schools in the Charlotte black ghetto 

(146a, 171a). The district court found (12a-14a, 86a-87a), 

and the court of appeals agreed (186a), that this segregated 

residential area was in part the work of federal, state and 

local governments. If only ‘reasonable means” need be 

used to desegregate the schools in the ghetto, and if the 

requisite additional bussing is not such “reasonable means”, 

governmental authorities will be authorized to perpetuate a 

racially segregated dual school system by dividing neighbor- 

hoods by race and drawing geographic school zones upon 

those segregated neighborhoods. We contend that under 

these circumstances a compelling governmental interest, at 

the least, must assuredly be shown to justify use of a plan 

that will not desegregate the black neighborhood schools. 

Otherwise government would too readily be authorized to 

accomplish indirectly what it could not do directly, ie., 

separate students by race. 

The district court found that (86a-87a): 

. .. [the] facts are that the present location of 
white schools in white areas and of black schools 
in black areas is the result of a varied group of ele- 
ments of public and private action, all deriving 
their basic strength originally from public law or 
state or local governmental action. These elements 
include among others the legal separation of the 

races in schools, school busses, public accommoda- 
tions and housing; racial restrictions in deeds to 
land; zoning ordinances; city planning; urban re- 
newal; location of public low rent housing; and 
the actions of the present School Board and others, 
before and since 1954, in locating and controlling 

 



    

30 

the capacity of schools so that there would usually 
be black schools handy to black neighborhoods and 
white schools for white neighborhoods. 

In more detail, the district court found that under the city’s 

urban renewal program, thousands of Negroes were moved 

from the center of town west to the least-restrictively- 

zoned areas, that while this relocation involved many deci- 

sions by individuals and governments at various levels, it 

“occurred with heavy Federal financing and with active 

participation by the local governments, and it has further 

concentrated Negroes until 95% or so of the city’s Ne- 

groes live west of the Tryon-railroad area, or on its imme- 

diate eastern fringes,” and that the School Board located 

new schools so as separately to serve the black population 

relocated to the northwest and the white population mov- 

ing generally south and east so that such schools became 

black or nearly black in the northwest and white or nearly 

white in the east and southeast (13a-14a). 

Governmental involvement in Charlotte’s residential seg- 

regation is also historically evident. After Buchanan v. 

Warley, 245 U.S. 60 (1917), outlawed compulsory residen- 

tial segregation, a principal impetus to neighborhood segre- 
gation was legal recognition and judicial enforcement of 

racially restrictive covenants.” The United States has taken 

the position that these become “in effect a local zoning 

ordinance binding those in the area subject to the restric- 

"The Supreme Court of North Carolina held such covenants legally 
enforceable as late as 1946. Vernon v. R. J. Reynolds Realty Co., 
226 N.C. 58, 36 S.E. 2d 710 (1946); Phillips v. Wearn, 226 N.C. 290, 
37 S.E. 2d 895 (1946); Eason v. Buffaloe, 198 N.C. 520, 152 S.E. 

496 (1930). In Phillips the Court upheld a racial restriction in a deed 
to a tract of land covering 380 lots in the eastern section of Charlotte, 
which it described as providing “[p]roperty not to be owned or occu- 
pied by persons of the negro race.” 37 S.E. 2d at 896. In 1948 this 
Court held such covenants unenforceable. Shelley v. Kraemer, 334 

us. 1. 

 



3] 

tion . ...”8 Also, policies followed by the Federal Hous- 

ing Authority and by local government in connection with 

public housing projects hage fostered residential segrega- 

tion.’ 

In sum, the findings of fact made by the district court 
as well as the historical record of governmental action re- 

quiring and supporting residential segregation in Mecklen- 
burg County provide ample support for that court’s conclu- 
sion (87a) that Charlotte’s black residential areas are the 

result of ‘‘so much state action . . . that the resulting segre- 

gation is not innocent or ‘de facto.”” It is well established 
that *“ . . . the involvement of the State need [not] be ex- 

clusive or direct. In a variety of situations the Court has 

found state action of a nature sufficient to create rights 

under the Equal Protection Clause even though the parti- 

cipation of the State was peripheral or its action was only 

_® Brief of the United States in Bell v. Maryland, 378 U.S. 226 
(1964), as quoted at 329 n. 16. See, also, the discussion of the 
grounds for decision of Shelley v. Kraemer, supra, in Bell v. Maryland, 
supra, at 328 et seq. (dissenting opinion of Mr. Justice Black). 

The FHA was urging racially restricted neighborhoods as late as 
1938 and continued to treat racial integration as a reason to deny an 
application for mortgage insurance even after Shelley v. Kraemer, 
supra. See U.S. Commission on Civil Rights, Racial Isolation in the 

Public Schools 254-255 (1967). State and local governments likewise 
fostered residential segregation in their administration of public hous- 

ing projects long after Shelley. Segregated projects in Philadelphia for 
Negroes and whites were approved in Favors v. Randall, 40 F. Supp. 
743 (E.D. Pa. 1941) and in 1955, the constitutionality of segregated 
projects in Detroit was being contested in the courts. Detroit Hous- 
ing Commission v. Lewis, 226 F.2d 180 (6th Cir.). Even as late as 
1969, federal courts were finding cities such as Chicago and Lansing, 
Michigan, to have maintained racially discriminatory policies for 
Gautreaux v. Chicago Housing Authority, 196 F.Supp. 907 (N.D. Ill. 
1969); Ranjel v. City of Lansing, 293 F. Supp. 301 (W.D. Mich. 1969), 
reversed on other grounds, 417 F.2d 321 (6th Cir. 1969), cert. denied, 
397 U.S. 980 (1970). 

 



    

32 

only one of several cooperative forces leading to the con- 

stitutional violation.” United States v. Guest, 383 U.S. 

745, 755-756 (1966). In Evans v. Newton, 382 U.S. 296, 

299 (1966), the Court declared, “[c]onduct that is formally 

‘private’ may become so entwined with governmental poli- 

cies or so impregnated with a governmental character as to 

become subject to the constitutional limitations placed 

upon state action.” See, also, Marsh v. Alabama, 326 U.S. - 

501 (1946); Terry v. Adams, 345 U.S. 461 (1953); Burton 

v. Wilmington Parking Authority, 365 U.S. 715 (1961). 

Under these circumstances, the Fourteenth Amendment 

requires that the school board avoid freezing black students 

into racially identifiable neighborhood schools. A State 

may not locate people in particular residential areas be- 

cause of their race and then put them in all-black schools 

because of where they live. To do so is simply, to put 

black neighborhood children in black neighborhood schools 

because they are black. This, under Brown, violates the 

Fourteenth Amendment. 

A long line of lower court decisions holds that when 

residential racial segregation is caused in part by state ac- 

tion, a school board may not maintain neighborhood 

schools if to do so means perpetuation of all black schools. 

Henry v. Clarksdale Munic. Sep. School District, 409 F.2d 

682, 689 (5th Cir. 1969), cert. denied, 396 U.S. 940 

(1969); United States v. Greenwood Munic. Sep. School 

District, 406 F.2d 1086, 1093 (5th Cir. 1969), cert. denied. 

395 U.S. 907 (1969); Valley v. Rapides Parish School Bd. , 423 

F.2d 1132 (5th Cir. 1970); United States v. Board of Educa- 

tion of Baldwin County, Ga.,423 F.2d 1013 (5th Cir. 1970); 

Kemp v. Beasley, 423 F.2d 851 (8th Cir. 1970). United States 

v. School Dist. 151 of Cook County, Ill., 286 F.Supp. 786, 

798 (N.D. Ill. 1968), aff'd, 404 F.2d 1125 (7th Cir. 

1968); Dowell v. School Board of Oklahoma City, 244 

F.Supp. 971 (W.D. Okla. 1965), aff'd, 375 F.2d 158 (10th 

Cir. 1967), cert. denied, 387 U.S. 931 (1967); Spangler and 

United States v. Pasadena City Bd. of Ed., 311 F.Supp. 

 



33 

501 (C.D. Calif. 1970); Keyes v. School District No. 1, 

Denver, 303 F.Supp. 79, 289 (D. Colo. 1969); see Cato 

v. Parham, 302 F.Supp. 129 (E.D. Ark. 1969). But see Deal 

v. Cincinnati Board of Education, 419 F.2d 1387, 1391-92 

(6th Cir. 1968). 

These rulings represent an application of the accepted 
proposition that, by indulging in one unconstitutional act 

(the causing of residential segregation), a state is barred 

from engaging in action otherwise within its power (neigh- 

borhood student assignment) because such action would 

perpetuate the unconstitutionality. Thus, an otherwise 

valid voter qualification may not be applied where it would 

raise standards above those applicable at a time when Ne- 

groes were discriminatorily excluded from the franchise, at 

least where white persons registered during such time 

remain on the registration rolls. Louisiana v. United States, 

380 U.S. 145 (1965); United States v. Duke, 332 F.2d 759 

(5th Cir. 1964). See, also, United States v. Ward, 349 
F.2d 795 (5th Cir. 1965) (requirement that voting ap- 

plicant be identified by previously registered voters, who 

were all white); United States v. Manning, 205 F.Supp. 

172, 173-174 (W.D. La. 1962) (same); Ross v. Dyer, 312 

F.2d 191 (5th Cir. 1962) (requirement that siblings attend 

same school); Board of Education Oklahoma City v. Dowell, 

375 F.23 158 (10th Cir. 1967), cert. denied, 387 U.S. 931 

(1967) (same); Franklin v. Parker, 223 F.Supp. 724 (M.D. 

Ala. 1963), modified and aff'd adopting the opinion of the 

district court, 331 F.2d 841 (5th Cir. 1964) (requirement 

that graduate student have graduated from accredited col- 

lege where Negroes could not attend any accredited college 

in the State); Meredith v. Fair, 305 F.2d 343 (5th Cir. 

1962), cert. denied, 371 U.S. 828 (1962) (requirement of 

alumni sponsorship where there are no black alumni); Hunt 

vy. Arnold, 172 F.Supp. 847 (N.D. Ga. 1959) (same). This 

is also the rationale of cases like Mapp v. Ohio, 367 U.S. 
643 (1961) and Miranda v. Arizona, 384 U.S. 436 (1966): 

Constitutional protection becomes meaningless unless courts 

are watchful to nullify otherwise unobjectionable actions 

that serve to perpetuate the constitutional wrong. 

 



    

34 

Additionally, there are cases, such as Brewer v. School 

Board of City of Norfolk, 397 F.2d 37 (4th Cir. 1968).1° 

and Spangler and United States v. Pasadena City Bd. 

of Ed., 311 F.Supp. 501 (C.D. Calif. 1970), which strongly 

suggest that a school board may not maintain neigh- 

borhood schools for neighborhoods that are segregated 

as a result of private racial discrimination. These are 

consistent with the cases holding that the government may . 

not encourage, extend, build upon, or involve itself in pri- 

vate discrimination. E.g., Pennsylvania v. Board of Direc- 

tors of City Trusts, 353 U.S. 230 (1957) (the State is for- 

bidden by the Fourteenth Amendment from carrying out 

the racially discriminating provisions of a private will); 

Reitman v. Mulkey, 387 U.S. 369 (1967); Keyes v. School 

District No. 1, Denver, 303 F.Supp. 279, 289 (D. Colo. 

1969). Here the black residential area in Charlotte was 

found to be the result of government action. Accepting 

the suggestion in Brewer that proof of private racial dis- 

crimination is enough, this case, where government action 

is involved, is a fortiori. 

Steps short of eliminating the racial identity of ghetto 

schools under such circumstances will not do. Green v. 

School Board of New Kent County, 391 U.S. 430 (1968), 

and Monroe v. Board of Commissioners of the City of Jack- 

son, 391 U.S. 450 (1968), indicate the constitutional inade- 

quacy of at least one of the alternatives suggested by the 

court of appeals—freedom of transfer with transportation. 

Negro students may not be assigned to all-black schools 

BS Brewer, the court instructed the district court to determine 

whether “the racial pattern of the districts results from racial discrim- 
ination with regard to housing” and concluded, “[a]ssignment of 
pupils to neighborhood schools is a sound concept, but it cannot be 
approved if residence in a neighborhood is denied to a Negro pupil 
solely on the ground of color.” The court went further saying that 
it is immaterial that the residential patterns are the result of private 
discrimination: “The school board cannot build its exclusionary 
attendance upon private racial discrimination.” 397 F.2d at 41-42. 

 



35 

and then asked to bear the burden of choosing a desegre- 
gated experience. Ramey v. Board of Education of the 
Gould School District. 391 U.S. 443, 447-48 (1968). The 
other alternatives suggested by the court of appeals are 
equally insufficient. Special integrated classes not only re- 

present token desegregation that fails to comply with con- 

stitutional requirements, but they also may well be harmful 

to otherwise segregated blacks by reinforcing the feel- 

ing of inferiority that is so harmful to education. U.S. 
Commission on Civil Rights, Racial Isolation in the Public 

Schools 128 (1967). Subsequent assignment to integrated 

classrooms is not only contrary to the dictates of Alexander 

v. Holmes County Board of Education, 396 U.S. 19, 20 

(1969), that schools be desegregated now and that no 

black student be ‘“‘effectively excluded” from a classroom 

because of race, but it also deprives that student of the 

full benefits of a desegregated education that may be 

realized only if he is assigned to an integrated school at 

an early age. See pp. 18-19, supra. 

In sum, where there is neighborhood segregation in part 

caused by state action, at the very least a school board 

may not retain neighborhood zones which result in segre- 

gated schools absent a compelling governmental interest 

necessitating the retention of those boundaries. In this case 

no compelling governmental interest was shown to justify 

such racial classifications. 

 



    

36 

CONCLUSION 

For the reasons stated above, the judgment of the court 

of appeals should be reversed and that part of the order of 

the district court vacated by the court of appeals reinstated. 

Of Counsel: 

SHEA & GARDNER 

734 Fifteenth Street, N.W. 

Washington, D.C. 20005 

Respectfully submitted, 

STEPHEN J. POLLAK 

BENJAMIN W. BOLEY 

RICHARD M. SHARP 

734 Fifteenth Street, N. W. 

Washington, D.C. 20005 

DAVID RUBIN 
1201 Sixteenth Street, N.W. 
Washington, D.C. 20036 

Attorneys for Amicus Curiae 

National Education Association [||5d121c5a-fcce-479d-969e-d724164bbef3||]