Wheeler v. Durham City Board of Education Brief of Appellee
Public Court Documents
January 19, 1966

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Brief Collection, LDF Court Filings. Wheeler v. Durham City Board of Education Brief of Appellee, 1966. 65b18bf2-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f2fcace5-2afc-47d5-b52e-ecb9edc5b147/wheeler-v-durham-city-board-of-education-brief-of-appellee. Accessed July 13, 2025.
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in The United States Court of Appeals For the Fourth C ircu it No. 10,460 W arren H. W heeler, et a !., and C. C . Spaulding, I I I , et a !., Appellants, Durham C ity Board of Education, a body politic in Durham, North Caro lina, Appellee. Appeal From the United States D istrict Court For the Middle D istrict of North Carolina BRIEF OF APPELLEE Marshall T. Spears Spears, Spears & Barnes Central Carolina Bank Bldg. Durham, North Carolina Jerry L. Jarvis Watkins & Jarvis First Union Nat. Bank Bldg. Durham, North Carolina Counsel for Appellee I N D E X Page Statement of the Case _______________________________________ 1 Questions Presented _________________________________________ 2 Statement of Facts __________________________________________ 2 ARGUMENT I. The Policies of the Defendant Board With Reference to the Employment and Assignment of Teachers do not Effect a Denial of the Constitutional Rights of the Plaintiff-Pupils ___________________________________ 5 II. Pupils May not Assert an Alleged Violation of Con stitutional Rights of Teachers, Who are not Parties to this Suit and are not Within the Class Represent ed by the Plaintiffs___________________________________ 12 III. The Board’s Unrestricted Freedom of Choice Plan for Pupil Assignments is in Full Compliance With Constitutional Requirements and was Properly Ap proved by the District Court __________________________ 14 CONCLUSION ______________________________________________ 16 T A B L E OF C IT A T IO N S Augustus v. Board of Public Instruction, 185 F. Supp. 450 (D.C. Fla., 1960) ______________________ 13 Augustus v. Board of Public Instruction, 5 Cir., 306 F. 2d 862 (1962) _____________ _______________ 13 Barrows v. Jackson, 346 U.S. 249 (1953) _______________________ 12 Bradley v. School Board of Richmond, Va., 4 Cir., 345 F. 2d 310 (1965) ________ _______ __ ________ 1,5,7 Bradley v. School Board of Richmond, Va., 382 U.S. 103 (1965) _________________________________ 10 Brooks v. School District of Moberly, Mo., 8 Cir., 267 F. 2d 733 (1959) _______________ ______________________ 9 City of Richmond v. Atlantic Co., 4 Cir., 273 F. 2d 902 (1960) ______________________ ____________ 7 Dodson v. School Board of Charlottesville, 4 Cir., 289 F. 2d 439 (1961) _______________________________ 15 1 Page Franklin v. School Board of Giles County, 242 F. Supp. 371 (W.D. Va., 1965) ________________________ Griffin v. Board Supervisors of Prince Edward County, Va., 4 Cir., 339 F. 2d 486 (1964) __________________ Gilliam v. School Board of Hopewell, 4 Cir., 345 F. 2d 325 (1965) _____________________________________ Jeffers v. Whitley, 4 Cir., 309 F. 2d 621 (1962) ________________ Mapp v. Board of Education of Chattanooga, 6 Cir., 319 F. 2d 571 (1963) ____________________________ 6, Monroe v. Board of Commissioners, 244 F. Supp. 353 (W.D. Tenn., 1965) __________________________________ NAACP v. Alabama, 357 U.S. 449 (1958) _____________________ Northcross v. Board of Education of Memphis, 6 Cir., 333 F. 2d 661 (1964) _______________________________ Thaxton v. Vaughn, 4 Cir., 321 F. 2d 474 (1963) ----------------------- Wheeler v. Durham City Board of Education, 4 Cir., 346 F. 2d 768 (1965) ____________________________ 5, Wood v. Hogan, 215 F. Supp. 53 (E.D. Va., 1963) ______________ 8 5 15 15 14 10 12 6 6 15 6 11 In The United States Court of Appeals For the Fourth C ircu it No. 10,460 W arren H. W heeler, et a l., and C. C. Spaulding, I I I , et a l., Appellants, Durham C ity Board of Education, a body politic in Durham, North Caro lina, Appellee. Appeal From the United States D istrict Court For the Middle D istrict of North Carolina BRIEF OF APPELLEE STATEMENT OF THE CASE ON APPEAL This is an appeal by the Plaintiffs, Negro pupils and parents, from an order of the District Court entered on Jan uary 19, 1966, which approved a comprehensive plan gov erning the assignment and enrollment of pupils in the Dur ham, N. C., City School System for the 1966-67 and subse quent school years. (Appellants’ Appendix, page 341a) Plaintiffs admit that the plan is entirely consistent with the free choice plan approved to by this Court in Bradley v. School Board of City of Richmond, Virginia, 4th Cir., 345 F. 2d 310 (1965). They contend, however, that in the context of these cases a free choice type pupil assignment plan is constitutionally inadequate in view of the policies of the De 2 fendant Board with reference to the employment and assign ment of faculty. After a full evidentiary hearing the District Court has con cluded that the policies and practices of the Board in the employment and assignment of teachers do not coerce, dis courage, or interfere with the unrestricted freedom of pupils to be enrolled in, and assigned to, schools of their choice and that the Board’s pupil assignment plan is in all respects free of consititutional infirmities. Based upon a finding that the Plaintiffs have failed to prove their assertion that constitutionally protected rights of pupils are infringed by the Board’s policies, the Court denied the application of the Plaintiffs for an order requiring the employment and as signment of teachers in the Durham City School System without regard to race. To the entry of the order approving the pupil assign ment plan, and the refusal of the Court to issue an order requiring faculty assignments without regard to race, the Plaintiffs filed notice of appeal on January 25, 1966. QUESTIONS PRESENTED I. Whether the District Court was justified in declining to issue an injunction with respect to the employment and assignment of teachers in the absence of a showing that such assignments effect a denial of the constitutional rights of the Plaintiffs? II. Whether the District Court erred in approving the Board’s pupil assignment plan, which is admitted to be en tirely consistent with the unrestricted free choice plan ap proved by this Court in Bradley v. School Board of City of Richmond, Virginia? STATEMENT OF FACTS During the present (1965-66) and the two preceding (1963- 64 and 1964-65) school years, all pupils attending the schools 3 in the Durham City Administrative School Unit have had the absolute right to attend the school of their choice, subject only to limitations due to overcrowding, and no pupil has been denied his choice of school for this reason. Operating under the unrestricted free choice of assignment plan for the 1965-66 school year, the Durham City Administrative School Unit operated 25 schools, including 2 high schools, 5 junior high schools, and 18 elementary schools. By racial composi tion of students, these schools may be additionally classified as follows: 1 predominantly white high school, and 1 all Negro high school; 3 predominantly white junior high schools, and 2 all Negro junior high schools; and, 1 all white elementary school, 9 predominantly white elementary schools, and 8 all Negro elementary schools. (Appellants’ Ap pendix, p. 21a, 22a). As of September 13, 1965, a total of 14,669 pupils were enrolled in the Durham city schools. Of this number 7107 were white and 7562 were Negro. On this date 600 Negro pupils were enrolled in predominantly white schools, and of this number 324 were attending predominantly white schools for the first time. During the 1963-64 school year 314 Negro pupils attended predominantly white schools; and 408 Negro pupils attended predominantly white schools during the 1964-65 school year. (Appellants’ Appendix, pp. 21a, 22a). Prior to the school year 1965-66 no Negro teachers were employed in all white or predominantly white schools, and no white teachers were employed in all Negro schools. However, one white teacher is presently teaching at the all Negro Hill side High School. Additionally, desegregation of professional employees and activities has been achieved in the areas of: (1) Supervisors’, principals’ and teachers’ meetings, (2) Workshops and in-service training courses, (3) Grade level meetings. 4 (4) Subject area meetings, including all special subject meetings, and (5) Supervisory staff work. (Appellants' App., p. 11a) The Durham City School System currently employs 601 classroom teachers. Of this 293 are Negro, and 308 are white. (.Plaintiffs’ Exh., 65-9a). The Plaintiffs do not contend that the Defendant Board has or is not assigning equally qualified teachers to the schools attended by Negro children, or that the quality of instruction at schools employing Negro teach ers is not equal to the quality of instruction at schools em ploying white teachers. Dr. Hines, one of the witnesses for the plaintiffs, stated that he was of the opinion that the administration was not assigning teachers of inferior quality to the schools attended by Negro children. Furthermore, he testified that in educational terms there is no advantage to a pupil to be taught by a person of a different race. {Ap pellants’ App., p. 183a). As previously noted, for a period of three years every pupil in the Durham City Schools has been afforded the unrestrict ed opportunity to attend the school of his parents’ choice. Therefore, pupils may attend schools staffed by white or Negro teachers at the election of their parents. As of Sep tember 24, 1965, there had not been any complaint from a Negro child or parent that any child assigned to a predomi nantly white school was mistreated or had not been given equal opportunities within the school. In several instances, personal inquiry by a school official was made of Negro stu dents attending predominantly white schools. In all such contacts the Negro pupils reported that they were getting along with their teachers and white classmates and had no complaints. The Negro pupils in the predominantly white schools were also exercising their right to participate in all extra-curricular activities afforded in these schools. {Appel lants’ App., pp. 277a, 278a.) 5 The Southern Association of Colleges and Schools, the official regional accreditation agency, has recently approved for accreditation all of the elementary and high schools in the Durham City System. Accreditation was also recommend ed for all junior high schools except two: one, attended solely by Negro pupils, was not eligible since it had not been in operation a full year; and the other, attended predominantly by white pupils, had accreditation deferred pending the re moval of certain deficiencies. During its survey, the Associa tion did not report any instance where pupils in predomi nantly Negro schools did not have the same level of high instruction or rapport between teacher and pupils as that found in predominantly white schools. The Association was highly complimentary as to the qualifications of teachers employed in the Durham City Schools and as to teacher and student rapport. (Appellants App., p. 11a.) ARGUMENT I. THE POLICIES OF THE DEFENDANT BOARD WITH REFERENCE TO THE EMPLOYMENT AND ASSIGN MENT OF TEACHERS DO NOT EFFECT A DENIAL OF THE CONSTITUTIONAL RIGHTS OF THE PLAINTIFF- PUPILS. It is now well established that pupils have standing to raise the question of the consideration of race in the assign ment of teachers and staff. Bradley v. School Board of City of Richmond, Virginia, 4tlr Cir., 345 F. 2d 310 (1965); Wheel er v. Durham City Board of Education, 4th Cir., 346 F. 2d 768 (1965); Griffin v. Board Supervisors of Prince Edward County, Virginia, 4th Cir., 339 F. 2d 486 (1964). As stated by the Court of Appeals for the Fourth Circuit in the Bradley case, supra, “ In a particular factual setting, it may be contended that consideration of race in the assignment of teachers 6 and staff coerces the pupils and effects a discrimination against them. The pupils have standing to raise such a question to the extent it involves an asserted denial of constitutionallv protected rights of the pupils.” 345 F. 2d at 320. Therefore, it is not sufficient for the Plaintiffs to show a possible violation of the rights of a teacher, they must prove a denial of constitutionally protected rights of the pupils themselves. See, Northcross v. Board of Education of City of Memphis, 6th Cir, 333 F. 2d 661 (1964). While the Plaintiffs initially questioned the policies of the Board with reference to employment of administrative personnel, it is respectfully submitted that they have not attempted to make, and cannot make, any showing that the assignment of administrative personnel by the Board affects the pupils in any way. No attempt has been made to develop a record upon which a finding of actual discrimination against pupis in this regard could be predicated. Indeed, in the case of Mapp v. Board of Education of the City of Chat tanooga, 6th Cir., 319 F. 2d 571 (1963), it was held that pupils as plaintiffs in a school desegregation case lack stand ing to raise questions relating to the hiring and assignment of school personnel other than teachers and principals. See also, Thaxton v. Vaughn, 4th Cir., 321 F. 2d 474 (1963), and Wood v. Hogan, 215 F. Supp. 53 (D.C.E.D. Va., 1963). A full evidentiary hearing with reference to the policies and practices of the Defendant Board in assigning teachers and professional personnel to the schools in the system, and the relationship of such assignments to alleged discrimination against pupils, has now been held. Taking all of the evidence into consideration, it cannot be said that the Plaintiffs have discharged the burden they must shoulder of showing that such assignments effect a denial of their constitutional rights. The general rule as to “burden of proof” was stated by the Court of Appeals for the Fourth Circuit in the case of City 7 of Richmond v. Atlantic Co., 4th Cir., 273 F. 2d 902 (1960), as follows: “The general rule requires that the evidence must generate an actual rational belief in the existence of a a disputed fact . . 273 F. 2d at 910. It is respectfully submitted that the record in this case does not generate an actual rational belief that the present practices of the Defendant Board in the employment and assignment of teachers and other professional personnel coerces the pupils and effects a discrimination against them. As noted earlier, there is no evidence to support a finding, and the Plaintiffs do not contend, that the Defendant Board has not assigned equally qualified teachers to all schools, or that the quality of instruction at schools employing Negro teachers is not equal to the quality of instruction at schools employing white teachers. (Appellants’ App., p. 183a). In order to receive certification by the State of North Carolina, all new teachers are required to take the National Teacher Examination and receive a minimum score of 450 on the examination. Since April 3, 1964, the Defendant Board has required all applicants to take the National Teacher Examination. During the last two years, all new teachers who have been employed by the Defendant Board have been re quired to have a score of 500, or better, on the examination. (Appellants’ App., p. 8a). In considering any order for the general reassignment of teaching personnel the Court should consider not only the constitutional rights of all pupils, but it should also consider “the possible detrimental effects of such an order upon the administration of the schools and the efficiency of their staffs." Bradley v. School Board of City of Richmond, supra. A member of the Durham City Board of Education testified as to the effect of complete integration of professional staffs in the system, as follows: 8 “We would be in a terrible situation if race were not involved at all if we would suddenly have to have a sort of fruit-basket upheaval of all the teachers in a system, whether it be all Negro teachers or all white teachers. This would be a terribly demoralizing thing and could ruin the set-up at individual schools.” (Deposi tion of Annie Laurie Bugg, Tr. pp. 27, 28). This evidence finds support in the testimony of Mr. Her man and Dr. Hines, two of the witnesses for the plaintiffs, who recognized that any integration of teaching personnel must be based upon the willingness of the teacher to teach in a particular situation. (Appellants’ App., pp. 111a, 112a, 117a, 123a, 168a). This raises one of the very practical prob lems inherent in the integration of professional personnel. A committee consisting of three members of the Durham City Board of Education made a study of the administrative prob lems involved in faculty desegregation. The Committee Re port included a survey of teacher desires and attitudes with reference to faculty integration. A questionnaire was sent to all faculty members of the Durham City Schools, and 93.7% of the teachers returned a completed questionnaire. Of the Negro teachers who filled out the questionnaire, not a single teacher felt he or she was best qualified to teach predomin antly white classes. Also, only one Negro teacher expressed a preference to teach predominantly white classes. The white teachers’ preferences indicated the highest number felt they were qualified to teach predominantly white classes and they were most willing to teach this type of proportion ed class. (Appellants’ App., p. 12a). In referring to faculty desegregation in the case of Frank lin v. County School Board of Giles County, 242 F. Supp. 371 (1965, W.D. Va.), the Court stated: “ . . . However, this court, in approving plans aiming at the eventual desegregation of teaching staffs, has been mindful of the problems to be overcome before a totally color-blind assignment policy can be put into effect and has left preliminary consideration of this matter to the 9 school authorities. In its recent opinion, Bradley v. School Board of Richmond, Virginia (supra) the Court of Appeals supports a cautious approach to this prob lem. The Court at pg. 320 laid down the following guide lines for the district courts: “ ‘When all direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may be expected to follow the racial patterns established in the schools. An earlier judicial requirement of general reassignment of all teaching and administrative person nel need not be considered until the possible detrimental effects of such an order upon the administration of the schools and the efficiency of their staffs can be appraised along with the need for such an order in aid of protection of the constitutional rights of pupils.’ ” 242 F. Supp. at 376. In the final analysis, the employment and assignment of teachers involves the appraisal of intangibles which cannot be reduced to a set formula, and a court should not undertake to substitute its judgment for that of a board of education and its superintendent on the qualifications of a given teach er for a given position. The Court of Appeals for the Eighth Circuit recognized the importance of such intangibles and the wide discretion which must be accorded school boards in matters affecting school management in the case of Brooks v. School District of Moberly, Mo., 8th Cir., 267 F. 2d 733 (1959), where it stated: . . Teaching is an art; and while skill in its practice cannot be acquired without knowledge and experience, excellence does not depend upon these two factors alone. The processes of education involve leadership, and the success of the teacher depends not alone upon college degrees and length of service but also upon aptitude and the ability to excite interest, and to arouse enthus iasm. . . “ . . The individual qualifications, capabilities and 10 abilities of each teacher must be considered, and human capabilities cannot be reduced to a mathematical form ula. Intangible factors, such as personality, character, disposition, industry, adaptability, vitally affect the work of any teacher. . . ” * * ❖ “ School boards are vested with wide discretion in matters affecting school management, including the employment of teachers, and a court may not interfere with the Board’s action unless the board has exercised its power in an unreasonable, arbitrary, capricious, or unlawful manner.” 267 F. 2d at 739. The Defendant Board is mindful of the recent United States Supreme Court decision of Bradley v. School Board of City of Richmond, Virginia, 382 U.S. 103 (1965). It is the Defendant’s position that this opinion has no bearing on the issue now before the Court. The United States Supreme Court remanded the case to the District Court to hold an evidentiary hearing to determine the impact which faculty allocation on a racial basis has on a school desegregation plan. The Supreme Court said that the petitioners were en titled to an evidentiary hearing upon their contention, but the Court did not express any view as to the merits of the desegregation plan submitted, or as to the petitioners’ con tention that faculty allocation on a racial basis constitutes a denial of pupils’ constitutional rights. With reference to the evidence offered by the plaintiffs in support of their request for an order requiring the integration of professional personnel, the case of Monroe v. Board of Commissioners, City of Jackson, 244 F. Supp. 353 (D.C.W.D. Tenn. 1965), is similar to the case at bar. After discussing the limited number of cases which deal with this question, the Court stated: “We glean from the foregoing cases that this applica tion for desegregation of faculties and principals largely addresses itself to the discretion of the trial court and that in exercising its discretion the Court should con 11 sider the current need for this action in effecting aboli tion of compulsory segregation of pupils as against any problems involved in taking this step. “ The defendants contend that there is no current need to desegregate the faculties and principals and that the teachers might be seriously adverse to such action. Plain tiffs offered some testimony from Negro parents that Negro pupils are reluctant to attend schools in which all of the teachers are white, some because they are afraid that the white teachers would require higher perform ance and perhaps others because they are afraid that they would not receive fair treatment. These witnesses gave no specific examples. It should be noted, however, that the intervening plaintiffs, at least, are seeking to attend schools with all white faculties. Plaintiffs’ educa tion experts largely testified in terms of the educational desirability of mixed faculties, but we do not believe that this is a constitutional consideration. Plaintiffs' sociology expert testified that in his investigation of the question at Nashville he had not turned up much evi dence that fear of going to a school of all white teachers is a deterrent, but he also testified that having all Negro teachers stigmatizes a school as a 'Negro’ school which tends to keep it segregated. “We do not believe that the proof of the plaintiffs is sufficiently strong to entitle them at this time to an order requiring integration of the faculties and princi pals. . . .” 244 F. Supp. at 364. The Court in the Monroe case did order the recision of the board of education policy which barred teachers from teach ing in schools in which pupils were all or predominantly of another race; however, it should be noted that pupils attend ing the schools of that system were assigned by geographic zoning and were not afforded the opportunity of being taught by teachers of their choice by selecting the school which they desired to attend. In the Durham City School System all pupils have complete freedom of choice to select the school they desire to attend and thereby are afforded the opportun 12 ity to choose their teachers. It should also be noted that the present policies of the Durham City Board of Education do not bar white or Negro teachers, who so desire, from teach ing pupils of the other race. This is evidenced by the fact that a white teacher is currently teaching in Hillside High School which is attended solely by Negro pupils, and that during the 1965 summer school program a Negro teacher taught at predominantly white Edgemont Elementary School, and a white teacher taught at East End Elementary School which was attended solely by Negro pupils. In addition, one white teacher’s aide and one Negro teacher’s aide were as signed to schools attended predominantly by pupils of the other race. (Appellants’ Appendix p. 294a and p. 91a). II. PUPILS MAY NOT ASSERT AN ALLEGED VIOLATION OF CONSTITUTIONAL RIGHTS OF TEACHERS WHO ARE NOT PARTIES TO THIS SUIT AND ARE NOT WITHIN THE CLASS REPRESENTED BY THE PLAIN TIFFS. The Plaintiffs contend that as pupils and parents they have standing to vindicate the constitutional rights of Negro teach ers, persons who are not before the Court. Generally, one may not assert the constitutional rights of persons who are not parties to the action. See, Barrows v. Jackson, 346 U.S. 249, 255-259 (1953). There are exceptional instances in which other persons may assert the constitution al rights of persons not before the Court where this is the only means by which the right can be effectively vindicated. Barron & Holtzoff (Wright ed., 1961), Sec. 482. Here, teach ers are clearly not within the class represented by the Plain tiffs, and the Plaintiffs’ nexus with the teachers is insuf ficient to permit them to act as their representative before the Court. As an example of an exception to the general rule, the Plaintiffs cite the case of NAACP v. Alabama, 357 U.S. 449 13 (1958), where an organization was permitted to assert the constitutional right of its members to withhold their con nection with the Association. The Court noted that if the Association’s members were constitutionally entitled to with hold their connection with the Association, the Association must necessarily assert this right, because to require it to be claimed by the members would nullify the right at the very moment of its assertion. In the case of Augustus v. Board of Public Instruction of Escombia County, 185 F. Supp. 450 (1960), reversed on other grounds, 5th Cir., 306 F. 2d 862 (1962), a class action was instituted by students to enjoin school authorities from as signing teachers and other school personnel on the basis of race and color. The Plaintiff students contended, as in the case at bar, that they should be permitted to raise the con stitutional rights of teachers, principals, and other school personnel. In dismissing this contention, the District Court stated: “ Plaintiffs cite the familiar and clear doctrine that one can raise the constitutional rights of another not a party to the suit if ‘its nexus with them is sufficient to permit that it act as their representative before this Court, (citing NAACP v. Alabama.) It seems too obvious for belaboring that no such standard of mutuality can be established between pupils and teachers, between pupils and administrative staff, between pupils and other school personnel.” 185 F. Supp., pg. 454. As pointed out by the Court below, it is rather apparent that what is being attempted here is to use the Plaintiff- pupils as a vehicle for obtaining desegregation of faculties without in any way involving teachers in the litigation. This the Plaintiffs should not be permitted to do. The argument that there is in this case a practical necessity that pupils and parents vindicate the rights of teachers if they are to be vindicated at all, finds no support in the present record. First, the Plaintiffs have not and cannot 14 offer any evidence that any teacher has been refused employ ment for a given position by reason of race or color, or that any teacher employed by the Defendant Board is discriminat ed against in any manner whatever. Second, even if such an individual did exist, in a proper suit the courts are readily available for the vindication of such person’s constitutional rights. Teachers are clearly not within the class represented by the Plaintiffs, and the Plaintiffs cannot assert, or ask protection of, constitutional rights of others not parties to this action. Mapp v. Board of Education of Chattanooga, 6th Cir, 319 F. 2d 571 (1963). III. THE BOARD'S UNRESTRICTED F R E E D O M OF CHOICE PLAN FOR PUPIL ASSIGNMENTS IS IN FULL COMPLIANCE WITH CONSTITUTIONAL REQUIRE MENTS AND WAS PROPERLY APPROVED BY THE DIS TRICT COURT. It is quite apparent that the Plaintiffs would have this Court reverse its often repeated conclusion that a pupil as signment plan offends no constitutional requirements when it grants to all students uniformly an unrestricted freedom of choice as to schools attended, so that each pupil, in effect, assigns himself to the school he wishes to attend. It is con tended that in the factual context of these cases such a system is inadequate. This argument ignores the familiarity of this Court with the background of these cases and the Court’s unanimous opinion in the last appeal, where the Court made the follow ing statements: “ In Jeffers v. Whitley, supra, this Court placed the stamp of approval upon the right of free choice of schools to be exercised by parents and pupils at the time of in itial pupil assignment and at reasonable intervals there after. In the more recent decision in Bradley v. School Board of City of Richmond, Virginia, 345 F. 2d 310, which was handed down on April 7, 1965, the majority of this Court held: 15 ‘***A state or a school district offends no constitutional requirements when it grants to all students uniformly an unrestricted freedom of choice as to schools at tended, so that each pupil, in effect, assigns himself to the school he wishes to attend.’ t- * ❖ * . . If the Board so desires, it may abandon its objection able plan and substitute in lieu thereof the unrestricted freedom-of-choice system as the Richmond School Board has done; or the Board may submit to the Court some other assignment plan free of objection as to constitution ality . . (Wheeler v. Durham City Board of Education, 4 Cir., 346 F. 2d 768, 773). No suggestion is made by the Plaintiffs as to what type of pupil assignment system they would ask this Court to substitute in lieu of that approved by the District Court. This Court has approved three basic type plans for pupil assign ments: (1) Freedom of choice, in Jeffers v. Whitley, 4 Cir., 309 F. 2d 621 (1962); (2) Geographic zoning, in Gilliam v. School Board of Hopewell, 4 Cir., 345 F. 2d 325 (1965); and, (3) Free transfers superimposed on geographic zoning, in Dodson v. School Board of Charlottesville, 4 Cir., 289 F. 2d 439 (1961). On the other hand, in the Bradley and Gilliam cases, supra, all members of the Court agreed that children are not required to be uprooted arbitrarily and bussed against their will to distant places merely to place them with chil dren of the other race. After discussing the requisites of free choice and geographic zoning plans in Bradley, supra, the majority went on to state: “ In addition to the cases previously considered, this Court has indicated that a system of free transfers superimposed upon a plan of geographic zoning is un objectionable and permissible. The plaintiffs suggest agreement that such an arrangement would be unobjec tionable, but they urge that an approvable geographic- scheme of original assignments must underlie a plan giving all pupils freedom of choice. We find, however, 16 that an underlying geographic plan is not a prerequisite to the validity of a freedom of choice plan. A system of free transfers is an acceptable device for achieving a legal desegregation of schools. Its acceptability is not dependent upon concurrent use of some other device which also might be adequate. In this circuit, we do require the elimination of discrimination from initial assignments as a condition of approval of a free transfer plan. Imposed discrimination is eliminated as readily by a plan under which each pupil initially assigns himself as he pleases as by a plan under which he is invol untarily assigned on a geographic basis.” 345 F. 2d 318. In a situation where a school board’s policies in the em ployment and assignment of teachers and professional per sonnel may be determined to effect a denial of constitution ally protected rights of pupils, the proper remedy must neces sarily be the elimination of the offending practices rather than disapproval of a constitutionally acceptable pupil assign ment policy. Therefore, it is respectfully submitted that the Defendant Board’s pupil assignment plan (Appellants’ App., p. 302a), which all agree meets the requirements of a free choice system of assignments, was properly approved by the District Court. CONCLUSION Wherefore, for the foregoing reasons, it is respectfully submitted that the judgment of the District Court should be affirmed. Respectfully submitted, Marshall T. Spears Spears, Spears & Barnes Central Carolina Bank Bldg. Durham, North Carolina Jerry L. Jarvis Watkins & Jarvis First Union Natl. Bank Bldg. Durham, North Carolina