Wheeler v. Durham City Board of Education Brief of Appellee

    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