Swann v. Charlotte-Mecklenberg Board of Education Motion for Leave to File and Brief Amicus Curiae

    No. 281

In The
Supreme Court of the United States

OCTOBER TERM, 1970

JAMES E. SWANN, ET AL„ Petitioners 
v.

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, ET AL., Respondents

On Writ of Certiorari T o T he United States Court 
of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE 

AND
BRIEF AMICUS CURIAE ON BEHALF OF JACKSON 

CHAMBER OF COMMERCE, INC. and JACKSON 
URBAN LEAGUE

SHERWOOD W. WISE 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205
Attorney for
Jackson Chamber of Commerce, Inc. 
and Jackson Urban League

WISE, CARTER AND CHILD 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205
OF COUNSEL



1

INDEX
Page

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE I

BRIEF AMICUS CURIAE 1

Questions Presented 1

Interest of Amicus C u r ia e ......................................  1

Argument 2

Conclusion 10

Certificate of Service........................................  11



1 .

No. 281

In The
Supreme Court of the United States

OCTOBER TERM, 1970

JAMES E. SWANN, ET AL., Petitioners 
v.

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, ET AL., Respondents

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE ON BEHALF OF JACKSON CHAMBER 
OF COMMERCE, INC. AND JACKSON URBAN 

LEAGUE

NOW COMES Jackson Chamber of Commerce, Inc., a 
non-profit corporation organized and existing under and 
by virtue of the laws of the State of Mississippi, and Jackson 
Urban League, a non-profit corporation organized and 
existing under and by virtue of the laws of the State of 
Mississippi, both having their domicile in Jackson, Hinds 
County, Mississippi, by their attorney, and hereby respect­
fully move for leave to file the attached brief amicus curiae. 
The consent of the attorneys for the petitioners and the 
respondents has not been obtained.

These two entities, being both concerned with the wel­
fare of the community within which they principally operate, 
and being particularly concerned with its economic growth 
and development, find themselves in common accord on one 
matter of particular and vital interest to their community, 
that is — the continued survival and health of the public



II.

school system in the Jackson, Mississippi, area, and, there­
fore, are deeply concerned with the issues here presented.

The issues here have implications extending far beyond 
the particular situation now before the Court. Accordingly, 
these two entities desire the opportunity to present their 
views on this matter to the Court.

We feel that our contribution should assist the Court 
in setting the problems here presented in a broader context, 
thus ensuring a readier grasp of the grave import its decision 
may have for public school systems throughout the country.

For the foregoing reasons, the movants respectfully 
request that this motion be granted.

Respectfully submitted,

Sherwood W. W ise 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205

Attorney for Jackson Chamber of 
Commerce, Inc. and Jackson Urban 
League

W ise, Carter and Child 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205



No. 281

In The
Supreme Court of the United States

OCTOBER TERM, 1970

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 AMICUS CURIAE ON BEHALF OF JACKSON 
CHAMBER OF COMMERCE, INC. AND JACKSON 

URBAN LEAGUE

QUESTIONS PRESENTED

This case presents questions which go to the very heart 
of the survival of the public school systems of this country. 
The questions presented necessarily include the following:

1. Must a school district adopt a plan of integration 
which demonstratively will result in resegregation?

THE INTEREST OF JACKSON CHAMBER OF 
COMMERCE, INC. AND JACKSON URBAN LEAGUE.

The interest of Jackson Chamber of Commerce, Inc. and 
Jackson Urban League, as amicus curiae is set forth on their 
motion for leave to file this brief amicus, to which motion 
this brief is annexed.



2

ARGUMENT

A. PRELIMINARY STATEM ENT

These two entities, being both concerned with the wel­
fare of the community within which they principally operate, 
and being particularly concerned with its economic growth 
and development, find themselves in common accord on one 
matter of particular and vital interest to their community, 
that is — the continued survival and health of the public 
school system in the Jackson, Mississippi area, and have 
agreed to submit to this Honorable Court certain principles 
which they believe if adhered to, would reverse the present 
destructive trends which are taking place not only in the 
Public School System of Jackson, Mississippi, but in all such 
systems in the Nation, and for that reason and in that spirit 
these two entities have come together for the sole purpose of 
presenting to this Honorable Court for its consideration the 
following facts and conclusions.

B. HISTORICAL REVIEW  OF COURT DECISIONS

In September of 1969, one year ago, schools of this 
district opened under what was basically a "freedom of 
choice” plan. Enrollment showed 18,227 blacks and 20,966 
whites. Today, one year and three court ordered plans later, 
enrollment is 18,396 black and 12,095 white, — a 42.4 per 
cent decrease in the number of whites. The first court order 
last fall ordered a desegregation of staff at the beginning of 
the second semester. On appeal by the NAACP Legal De­
fense Fund, counsel for the plaintiff, complete desegrega­
tion of pupils and staff was ordered at the beginning of the 
second semester. The District Judge ordered into effect an 
HEW plan for elementary schools and a plan of his own 
devising for secondary schools. Plaintiffs appealed this order



3

as to the secondary plan only. In May the Fifth Circuit Court 
of Appeals acted on this appeal, ordering into effect an 
HEW plan for secondary schools. Although there had been 
no appeal, the Fifth Circuit ordered the District Court to pre­
pare a new elementary plan and ordered the appointment 
of a Bi-Racial Committee to help devise this plan. The Bi- 
Racial Committee did devise a plan and, after hearings, 
this plan was ordered into effect for September. Plaintiffs 
appealed this order and in their brief made this statement: — 
"the district court’s controlling responsibility is to evaluate 
that plan, not in terms of its educational soundness, but in 
terms of its ability to achieve integration.”

In August, acting on this appeal, the Fifth Circuit 
ordered into effect a plan which basically consisted of the 
pairing and grouping of approximately half the elementary 
schools. The court stated that this was to be temporary and 
the District Court was ordered to hold hearings and to pre­
pare a new elementary plan for the second semester, making 
the fourth disruption in four semesters. The traditional 
six grade structure for elementary schools has been destroyed 
and we now have seven different grade-structured types of 
elementary schools. The traditional 3-3 secondary structure 
has been destroyed in favor of a 2-1-1-2 structure.

Under court plans presently in effect, 95% of the 
children in this district will attend six different schools from 
the first to the twelfth grade. In one extreme case, a small 
group of children will go to seven schools in twelve years. 
Or to look at it another way, it is possible for a family with 
seven children to have them in seven different schools.

Our superintendent, who came to us one year ago from 
a position as Assistant Superintendent in Atlanta, Georgia,



4

resigned a month ago, stating that his training, experience, 
and conscience would not permit him to be responsible for 
a system over which the court would allow him no control 
and one which he felt had been made educationally and 
administratively unsound. This man’s imagination and ded­
ication are demonstrated by the fact that this school sys­
tem was the first in the country to submit a comprehensive 
plan of educational innovation and to receive a grant under 
the 75 million dollar emergency fund appropriated this 
summer. Under state law (dated prior to the Brown deci­
sion) and reinforced by an opinion from the Attorney 
General of Mississippi, the local school board has no au­
thority (even if it had the money) to provide intra-city trans­
portation.

C. RECEN T STATISTICS

The following statistics demonstrate forcefully and 
without further argument precisely what is taking place in 
the Public School System of Jackson, Mississippi at the 
present time:

As of September 15, 1969, there were 18,227 black 
students and 20,966 white students in the Public School 
System of Jackson, Mississippi, or a total of 39,193 students 
The percentage ratio at that time was 47% black and 53% 
white.

On September 18, 1970, there were in the said school 
system 18,396 black students and 12,095 white students, or 
a total of 30,491 students. The percentage ratio at that time 
was 60% black students and 40% white students.



5

Thus, it can be seen that with the various court orders 
as set out in the historical review above, withdrawals of 
white students have occurred so that from September 15, 
1969, to September 18, 1970, the number of white students 
attending said school system has dropped from 20,966 to 
12,095, while over the same period the black students in 
said system have increased from 18,227 to 18,396. The per­
centage change over said period of approximately one year 
has been from 47% black students to 60% black students, 
and from 53% white students to 40% white students.

Thus, it is self-evident that from September 15, 1969, 
to September 18, 1970, a serious drift toward resegregation 
has taken place in the Jackson public school system.

D. ECONOMIC IMPACT

A major concern which bears directly on Jackson’s edu­
cation problems is the slowdown which has occurred in the 
city’s economic development. During the past decade the 
increase in manufacturing employment has only been one 
half of what was needed.

A critical problem confronting Jackson’s development 
efforts is the school situation. The present instability is pre­
venting a major manufacturer from locating a badly needed 
large plant in the Jackson area. Neither this company nor 
many of the other firms which might otherwise come to 
Jackson can be expected to move into the area.

Paradoxically, Jackson’s schools need to be strengthened 
before it will be possible to attract many of the companies



6

needed to accelerate the area’s economic growth. The need 
for strengthening the schools was recognized by the School 
Board when they employed Dr. John Martin as superinten­
dent; his capabilities in the curriculum development field 
were a major factor in his selection. And that strengthening 
cannot occur unless economic growth takes place which pro­
duces the revenues required. Nor can many of the social 
problems which confront the families in the lower economic 
brackets be solved unless more economic development takes 
place.

We come full circle then. The city’s schools cannot be 
strengthened substantially without a doubling of the area’s 
economic growth rate. The desired economic growth can­
not take place without significant improvement in the 
quality of Jackson’s schools. Neither improvement of the 
schools nor the desired economic development can take place 
unless the present instability is eliminated and the basic 
problems involved in the integration of the schools can 
be worked out.

The importance of this impact is not confined to eco­
nomics alone. It is obvious that an adverse economic im­
pact on any community brings with it increased social prob­
lems and burdens. This community at this time is making 
heroic efforts to solve social problems by providing better 
jobs, better housing, and better living conditions for its 
citizens who are in the lower economic echelons. This re­
quires expenditures of capital. Anything, including the situa­
tion we are now concerned with, which adversely affects 
the economics of this community will adversely affect the 
efforts now being made to upgrade the living standards of 
those citizens in this community who are in the lower eco­
nomic brackets.



7

E. CERTAIN PRINCIPLES

We are persuaded that from the experiences of this 
community, as well as the experiences of communities all 
over the Nation, certain basic principles have emerged 
which are worthy of serious consideration.

1.
Prior to the court orders which changed the same, the 

School System of Jackson, Mississippi, operated on what is 
known as 6-3-3 plan. That is, in the district the elementary 
schools consisted of the first six grades, the junior high 
schools consisted of grades seven, eight and nine, and the 
high schools consisted of grades ten, eleven and twelve. 
This system worked well and served the needs of the people 
in the community better than any other system which has 
ever been devised. There were demonstrable educational 
advantages, as the breaks which occurred between the three 
divisions of the system were natural breaks based on age 
and development of the children. There proved to be less 
disruption in the life of the individual child. The possibili­
ties of major transportation problems were reduced. It is 
our firm belief that a return to the 6-3-3 concept is essential.

2.
It is our further conviction that if the integration which 

the courts, by their various decisions and orders have de­
creed, is to be achieved, it must be done in an orderly man­
ner which will accomplish the courts’ purposes without 
totally wrecking the public school system. In order to ac­
complish this, it is necessary that the outflow of whites from 
the public schools be reversed or resegregation is certain to 
result. It is probable that this trend can be reversed and



8

many whites who have fled the public schools will return 
if certain self-evident'facts are recognized and are dealt with 
on a realistic basis.

Experience has shown that depending upon location of 
the area involved when the ratio of black pupils to white 
reaches a certain percentage, resegregation has resulted. For 
each community the resegregation point varies, depending 
upon the very nature of the community itself. Such conse­
quences have been experienced in numerous American com­
munities, including Washington, D. C., Philadelphia, 
Pennsylvania, Cleveland, Ohio, and many others. The 
Jackson statistics quoted above confirm the fact that this 
trend is presently being experienced in the Jackson Public 
Schools.

There are many and obvious deleterious by-products 
of this trend. Support of the public schools is being re­
duced. As an example, in November of 1969, a bond issue 
for capital expenditures for public schools in the City of 
Jackson was defeated by both black and white votes. It is 
doubtful if any public school bond issue could pass in this 
area at this time.

Frustration exists in the families of both the black and 
the white communities in the City, and this frustration is 
resulting in further polarization of the races.

Once the trend begins of the flight of whites from the 
public schools, it can normally be expected to accelerate. 
This statement is based on the experience of this community 
and others as set out above. In this community the private



9

schools which now exist, many of which have recently come 
into being, are overloaded and are expanding their facilities.

3.

Should the principles set out above be adhered to, it 
will then become incumbent upon this community to commit 
itself unreservedly to an innovative system of superior pub­
lic education. The time gap which will exist between the 
frustrations and disruptions mentioned above and some 
eventual solution to this problem is all important. Steps 
must be taken immediately which will have the effect of 
compensating educationally for these frustrations and dis­
ruptions during this period.

This community has shown its commitment to these 
principles in the past. This commitment must continue. In 
fact, if the trend which is now taking place is to be re­
versed and the public school system of this area is to be 
saved, this commitment must be strengthened and the edu­
cational processes in the public school system must be en­
hanced at all levels. There are many things which can be 
done immediately and in the future to bring this about. We 
believe that with a reasonable, sensible and workable ap­
proach to the overall problem, this community will respond 
affirmatively in bringing about superior public education 
for its children. It is our firm conviction that this should 
be the primary consideration of all of the courts involved, 
and of all the entities and individuals who are in any wise 
affected by this overall problem.



10

CONCLUSION
We conclude that stability in the schools which will 

permit them to continue to survive can only be achieved if 
the principles set out herein are adhered to.

Respectfully submitted,

For The
JACKSON CHAMBER OF 

COMMERCE, INC.

President

Executive Secretary 

For The
JACKSON URBAN LEAGUE

President

Executive Secretary

Board of Directors

Board of Directors

Sherwood W. Wise, Attorney for 
Jackson Chamber of Commerce, Inc. 
and Jackson Urban League
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205

W ise, Carter and Child 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205
October 9, 1970



11

CERTIFICATE O F SERVICE
I, Sherwood W. Wise, the attorney for Jackson Cham­

ber of Commerce, Inc. and Jackson Urban League, amicus 
curiae herein, and a member of the Bar of the Supreme Court
of the United States, hereby certify that, on the________ day
of October, 1970, I served copies of the foregoing Motion 
For Leave To File Brief Amicus Curiae and Brief Amicus 
Curiae on the several parties thereto, as follows:

1. On the petitioners, James E. Swann, et al, by mail­
ing three copies in a duly addressed envelope, with 
air mail postage prepaid, to their attorney, James 
Nabrit, III, 10 Columbus Circle, New York, New

York 10019.
2. On the respondent, Charlotte-Mecklenburg Board 

of Education, et al, by mailing three copies in a duly 
addressed envelope, with air mail postage prepaid, 
to their attorneys, William J. Waggoner, Wein­
stein, Waggoner, Sturges & Odom, 1100 Barring 
Office Tower, Charlotte, North Carolina and Ben­
jamin S. Horack, Ervin, Horack & McCartha, 806 
East Trade Street, Charlotte, North Carolina.

3. On the United States of America, amicus curiae, by 
mailing three copies in a duly addressed envelope, 
with air mail postage prepaid, to its attorney, Erwin 
Griswold, Esquire, Solicitor General, Department 
of Justice, Washington, D. C.

It is further certified that all parties required to be 
served have been served.

Sherwood W. Wise
Attorney for Jackson Chamber of Commerce, 
Inc., and Jackson Urban League
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205