Order and Opinion Denying Motion to Dismiss

     [||7756b9cf-81bb-4e64-a3a8-d634dc85ced2||] : é 3 

CHAMBERS, STEIN, FERGUSON & LANNING 

ATTORNEYS AT LAW 

216 WEST TENTH STREET 

CHARLOTTE, NORTH CAROLINA 28202 

  

JurLius LEVONNE CHAMBERS June 26 , 1969 P. O. BOX 20428 

ADAM STEIN AREA CODE 704 

JAMES E. FERGUSON, II TELEPHONE: 375-8461 

JAMES E. LANNING 

Mr. James Nabrit, III 

NAACP Legal Defense and Educational Fund, Inc. 
10 Columbus Circle 
Suite 2030 

New York, New York 10019 

Re: Swann, et al. v. Charlotte- 
Mecklenburg Board of Education 
  

Dear Jim: 

I am enclosing a copy of the recent opinion and order in 

connection with the above case. 

Sincerely yours, 

  

J. LeVonne Chambers 

JLC:jch 

Enclosure 

 



  

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division weg yt yt 
Civil Action No. 1974 :. i fw 8 [| '* {tex § 

JAMES E. SWANN, et al, Plaintiffs, ) 
) 
) 
) iT { 

THE CHARLOTTE-MECKLENBURG BOARD ) OPINION 
OF EDUCATION; MR. WILLIAM E. POE, . ) AND 
Chairman; MR. HENDERSON BELK; ) ORDER 
MR. DAN HOOD; MR. BEN F. HUNTLEY; ) 
MRS. BETSEY KELLY; REV. COLEMAN ) 
W. KERRY, JR.; MRS. JULIA MAULDEN; ) 
MR. SAM S. McNINCH, III; and DR. ) 

CARLTON G. WATKINS, Defendants. ) 

Pursuant to notice dated June 4, 1969, a hearing was 
held in Charlotte on June 16, 17 and 18, 1969, on various 
matters including (1) the motion of the individual defendants 

for dismissal; (2) the motion of the plaintiffs for contempt 
citations against fhe individual defendants; (3) the pro- 

posals offered by the defendants pursuant to the April 23, 

1969 order as a plan for desegregating the Charlotte-Meck- 

lenburg schools; and (4) the motion of the plaintiffs for 

an order restraining further school construction until the 

segregation issue has been satisfactorily resolved. 

THE MOTION OF THE SCHOOL BOARD 

MEMBERS TO DISMISS. 

The motion of the individual defendants, members of 

the school board, to dismiss was and is denied. This is 

a suit under the Civil Rights Act invelving questions of 

equal protection of laws and racial discrimination and 

segregation in the public schools. The individual 

defendants are proper parties and their presence is 

appropriace and desirable. 

II. 

THE MOTION FOR A CONTEMPT CITATION. 

The motion of the plaintiffs that the individual 

defendants be found in contempt of the court is on this 

record denied. The board is badly divided and many of 

its recent decisions appear to be made by a five to four 

 



  

vote. Supreme Court judges now and then make five to 

four decisions. (Fortunately their votes in all major 
school segregation cases appear to have been unanimous.) 

The members of the board have had uncomplimentary things 

to say about each other and about the court, and many of 

them obviously disagree with the legality and propriety 

of the order of the court; but these latter sentiments 

may be regarded by the court as evidence of ‘disagreement 

with rather than contempt for the court who is himself 

not far removed from active participation in the time- 

honored custom of criticizing a judge who has ruled 

against him. Moreover, on an issue of such significance, 

the amount of foot-dragging which has taken place, up to 

now at least, should not be considered as contempt of 
court. 

111. 

THE PLAN OF THE DEFENDANTS. 

l. The history of the plan. -— The order of this 

court directing a further plan for desegregation was 

entered April 23, 199. Within hours, various of the 

defendants expressed sharp views pro and con. The board 

met on April 28, 1969, and for the first time briefly 

discussed the order. By a five to four margin, apparently, 

they decided informally not to try to appeal immediately, 

upon the basis that the right of appeal from the order to 

prepare a plan was doubtful. The school superintendent 

was instructed to prepare a dcesegregation plan. NO express 

guidelines were given the superintendent. However, the 

views of many members expressed at the meeting were so 

opposed to serious and substantial desegregation that 

everyone including the superintendent could reasonably 

have concluded, as the court does, that a "minimal" plan 

was what was called for, and that the plan” was essen- 

tially a prelude to anticipated disapproval and appeal. 

In a county and city criss-crossed by school bus routes 

for 23,000 pupils, more than twenty thousand citizens, 

mostly from affluent suburbia, many of whose children 

undoubtedly go to school on school busses, signed 

petitions against “involuntary” bussing of students. 

The frenzy of parents received a ready forum in televised 

meetings of the board. The staff were never directed to 

do any serious work on re-drawing oi schceoed 

pairing of schools, combining zones, grouping 

f Health, Education and 

as 

  

conferences with the Department Of 

Welfare, nor any of the other possible metho 

real progress towards desegregation. 

The superintendent revealed the general terms of 

his plan within a few days and later presented it formally 

on May 8, 1969. It provided for full faculty desegrega- 

tion in 1969, which the superintendent said he considered 

 



3 

  

feasible. It provided moderate changes in the pupil 
assignment plans; and it contemplated future study of 
the other methods of desegregation suggested in the 
April 23, 19692 order. 

The board then met, struck out virtually all the 
effective provisions of the superintendent's plan, and 
asked for more time from the court, which had previously 
been promised. 

The board's committee on buildings and sites, newly 
re-constituted, met and voted to cancel the long standing 
plans for Metropolitan High School, and voted to build 
it as only a specialty and vocational school without 
including the comprehensive high school which consultants 
and experts, including the school board's staff and 
superintendent, had recommended and still recommend. 
No new facts except the order of court had developed 
to account for the sudden change of plan. The stated 
reason for the change was that a general high school 

in Second Ward (though not a vocational or technical 
school) would necessarily be black and therefore should 
not be built. [The Second Ward school site, where 
Metropolitan is scheduled to be built, is squarely 
in the center of the city's population; is a scant 
four blocks from the south boundary of its zone; and 
1s apparently the easiest high school in town to 
desegregate; its boundaries could easily be re-drawn 
by extending its southern boundary (Morehead Street) 
and its eastern boundary (Queens Road) a few blocks.] 

Thereafter, on May 28, 19 69, the plan was filed. 

Volunteers were requested among the teachers; pupil 

transfer requests were set ov’; and data on the workings 

of the plan began to accumulszte. 

During the early debate over the court order, 
events transpired between the chairman and the superin- 

tendent which were thought by an assistant superintendent 

and others to threaten the superintendent's job if he 

pushed for compliance with the court's order. A few 

days before this hearing, the board committee on personnel 

declined to accept the superintendent's recommendation 

that Robert Davis, a Negro, be appointed pri £ 

one of the schools. This was the first tir such a 

recommendation had not been accepted. Afters some debate, 

the decision was postponed, with the superincendent 

requested to bring in alternate names. The publicly 

stated reasons for not approving the appointment were 
"oO that Davis, whose training, experience and qualifications 

were unquestioned, is a plaintiff in this case and a 

member of the Negro Classroom Teachers Association and 

has spoken out publicly in favor of compliance with this 

court's order -— including one television appearance 

 



lim 

  

before the board itself to which the board had invited 
interested citizens. Davis, according to the press, 
was eventually confirmed for the job on June 19, 1969, 
but only after a "loyalty oath” had been exacted. The 
effect of the so-called "job threat" and the Davis 
incident, following the public statements of board 
members, is a clear message: School employees voice 
opinion contrary to the board majority on desegrega- 
tion at personal risk. 

2. The June 16, 1969 hearing. — The defendants, 

under the law, had the burden of showing that their plan 

would desegregate the schools. To carry that burden they 

introduced a short written brief and some statistical data 

and rested their case without live testimony. The plain=- 

tiffs called all members of the school board and the 

Rhode Island expert, Dr. Finger, who testified at the 

March hearing, and a few other witnesses. There was 

some rebuttal from the board. 

  

3. Findings as to General Board Policy. =— 
  

a) The board does not admit nor claim that 
it has any positive duty to promote desegrega- 

tion. 
J 

b) School sites and school improvements have 

not been selected nor planned to promote desegre:- 

gation and the board a mits no such duty. 

c¢) Board policy is that the Constitution is 

satisfied when they locate schools where children 

are and provide "freedom of transfer" for those 

who want to change schools. 

d) Despite its inclusion in the "Plan," the 

decision of the board about Metropolitan High 
School is not really a final one; several members 

consider the issue in doubt, and the full board 

has not formally considered it. 

4. The Pupil Assignment Plan. — The plan now 

proposed is the plan previously found racially discrimi- 

natory, with the addition of one element — the provision 

.0f transportation for children electing to transfer out 

of schools where their races are in a majority to schools 

where they will be in a minority. Such provision of 

transportation is approved. 

  

Another provision of the plan makes hiigh school 
athletes who transfer from one school to another ineligible 

for varsity or junior varsity athletics until they have 
ol... Por.the current year, with 

, only two white students out 

i 
been a year in the new scho 

the returns almost complete 

 



  

-_5- 

of some 59,000 have elected to transfer Pum ‘white schools 

to black schools. Some 330 black students out of some 

24,000 have elected to transfer to white schools. Only 

the tiniest handful of white students have ever in any 

vear asked to transfer to black schools. The effect of 

the athletic penalty is obvious -— it discriminates 

against black students who may want to transfer and 

take part in sports, and is no penalty on white students 

who show no desire for such transfers. The defendants’ 

superintendent considers athletics an important feature 

of education. This penalty provision is racially dis- 

criminatory. The board is directed not to enforce it 
any more and to give adequate individual notice to all 

rising 10th, llth and 12th grade students that they may 

reconsider their previous choice of schools in light of 

the removal of the penalty. 

Freedom of transfer increases rather than decreases 

segregation. The school superintendent testified that 

there would be, net, more than 1,200 additional white 

students going to predominantly black schools if freedom 

of transfer were abolished. The use of a free transfer 

provision is a decision for the board; it may make 

desegregation more palatable to the community at large; 

it is not, per se, if the schools are desegregated, 

unconstitutional. Nevertheless, desegregation of schools 

is something that has to be accomplished independent of 

freedom of transfer. This is a fact which because of 

the complexity of the statistics has only become clear 

to the court since the previous order was issued. 

  

  
    

  

« 5. The Faculty Assignment Plan. -— The plan originally 

proposed by the superintendent would have desegregated the 
  

Faculty as a routine matter in 1969. The plan proposed by 

board however is not materially different from the 

lready existing plan. It continues to rely upon volun- 

-ary transfers and it RL Se affirmative assignment 

of teachers to black schools only late in the day after a 

hopeful routine of filling vacancies (some of which dc 

not exist) has been followed. The board has not take: 

a position of leadership with the teachers and the results 

are apparent. Only 28 out of 2,700 white teachers, and 

only 38 out of 900 black teachers, had on June 18, 1969 

indicated a willingness to transfer to schools of the 

opposite race. Testimony of the board members who com- 

prise the majority of the board suggests that they do not 

really contemplate substantial faculty desegregati 

£ y Se GR = ov) Lm rs TOI pm voz TR, Ry 
that they may consiaer ilgures ol 10%"; or one biack 

- - J 
Oh and 

“nN t- — Tm Thm A= MN pc fy J O&O im op —3 gal = Bon } a + 

teacher tO each wihiite sSCnool and one Lite tTeachel TO 

~=~r~h 1 - ~ h "7 - a Bi Be Hl — 6 Lvs ST d= A oOrDOS a f= N 

2 aln bial ad 4 SCHOO. H oY -LT1.L.l 1119 ValCahniCles LIAR J ii Jd LC 

race as they arise, to be compliance with the needs Or 

+h e I st b= te + +heace ide [= of ~Ml1 7 SO SMOLIN S 
Cilio ~~ ule uation. None OL cheese whe eas, de LU UL OC Cll LLiL LO 

Sy £f the faculty. The evidence suomltted 

tT — Je EI PPT I By — mT dtr v™1 =3vy 

the board does not demonstrate that the faculty plan 

rs said that the plan to 11 hy Several board membe 

sign teachers is not an "1 

   



z x i 

-_5 —- 

  

All that it takes to make the faculty plan work is 

timely decision by the board to implement the assignment 

of teachers. Board members are requested in this connec- 

tion to consider the latest unanimous Supreme Court decision, 
United States v. Montgomery County Board of ‘Education 

(October Term 1968), Case No. 798, decided June 2, 1969, 

ing the Fifth Circuit Court of Appeals and upholding 

trict court order for faculty desegregation under a 

hasEioal formula. Ruling on the faculty plan will 

erefore be deferred until after August 4, 1969, by 

which time the board is directed to file a report stating 

in detail what the plan has done and what the status of 

faculty assignments then is. The court considers the 

faculty assignment plan to be important and agrees with 

the superintendent of schools that immediate desegregation 

of the faculty is feasible. This is a substantial improve- 

ment which is available without arousing ghosts of "bussing,"” 

"neighborhood schools,” or additional expense. 

  
  

iv. 

GERRYMANDERING. 

This issue was passed over in the previous opinion 

upon the belief which the court still entertains that the 

>fendants, as a part of an overall desegregation plan, 

1.11 eliminate or correct all school zones which were 
created or exist to enclose black or white groups of 

1pils or whose population is controlled for purposes 

of segregation. However, it may be timely to observe 
fw and the court finds as a fact that no zones have apparently 

been created or maintained for the purpose of promoting 

segregation; that the whole plan of "building schools 
ie 1 re the pupils are" without further control promotes 

iregation; and that certain schools, for example 

lingsville, Second Ward, Bruns Avenue and Amay James, 

obviously sexve school zones which were either SroRtsd 

or which have been controlled so as 

of black students and that the result of these actions 

is discriminatory. These are not named as an exclusive 

list of such situations, but as tinstrAtions of a long 

tanding policy of control over the makeup Of school 

population which scarcely fits any true "neighborhood 

hool" philosophy. 

c 

x pe 

ig id it oer pe “« Or 6 
rindings C1 Ix se ol 20-4 

a a - BF iy Pn ; on my my he my ~~ 
ements: Ll Cilio Tf CYeactCd ab 

r TE A Tar 
OL The ALL "CL The eVvViaencce wg 

hal git in s : of the order. 

 



  

ORDER 

Based upon the evidence and upon the foregoing 
findings of fact the orders of the court are as follows: 

l. The motion of-theindividial defendants to 

dismiss 1s denied. 

2. No citations for contempt are made. 

3. Decision on the faculty assignment plan is 

deferred pending receipt of a progress report from the 

board on or before August 4, 1969. 

4. The one year penalty on transferring high school 

athletes is disapproved with direction as above for appro- 

priate personal .communication to rising high school students. 

5. The provision of transportation for students 
transferring from a majority to a minority situation is 

I~ Love d » 

6. The board is directed to proceed no further with 

action on Metropolitan High School pending a showing by 

board that the school if constructed will be adequately 

desegregated and a finding by the court to that effect. 

Ls is based upon the previous findings that the board's 

fF Lsion on Metropolitan was unduly affected by racial 

iderations and that the board has not accepted its 

rmative legal duty tc build school facilities so as 

tO promote desegregation. 

7. As £0 the other building projects x in 
Po | - 

the motion for restraint on construction, the 

upon the defendants to show that these programs w 

desegregation. The written material tendered by the defendants 

this subject is lengthy, and does not appear to sustain 

0) H
h
 

0)
 

I 
of 

5
 
0 jo
h 

I
 O 

aden remains 

3. 111 produce 

burden. However, decision on the request for injunction 
Te tin i a at 

>politan will be delayed 

  

projects other than 
5 : 

Lt is further © he defendants 

and subnit by 3, 

gation of the Charl 

system, as C ected on Apri 

.thess, Dr. E ed in detail. a ol 

egation by cl 3cho0l zone 

g certain scho LC nd us 

chools as feeds ) 

cgree of realism it minimi 

long-range tran: tatio: gd tal 

ge of location anc makeup of populations. LO 

 



  

= 

chool administration consider such a plan feasible. 

local school administrative staff are also better 

guipped than Dr. Pinger, & "visiting fireman," to 

work out and put into effect a plan of this sort. It 

is believed that if the resources of the board can be 

directed as originally ordered toward preparing a Char- 

Llotte-Mecklenburg plan for the Charlotte-Mecklenburg 

schools, desegregation of both faculties and students 

be accomplished in an orderly fashion. Counsel 

are requested to notify the court promptly if more time 

beyond August 4, 1969 is needed. 

  

This the 20th day of June, 1969. 

Voss fA tlm 
  

James B. McMillan 

1 States District Judge [||7756b9cf-81bb-4e64-a3a8-d634dc85ced2||]