Motion to Add Additional Parties-Defendant, to Merge or to Consolidate Proceedings and for a Hearing on Pending Motions

     [||68376810-80f5-42ec-bf28-5196f6c1dae6||] | IN THE 

| UNITED STATES DISTRICT COURT | 

| FOR THE | 
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WESTERN DISTRICT OF NORTH CAROLINA 

  

JAMES E. SWANN, et al., 

Plaintiffs, 

CIVIL ACTION Ve. 

CHARLOTTE~MECKLENBURG BOARD NO. 1974 

1 OF EDUCATION, et al., 

Defendants. 

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| TO MERGE OR TO CONSOLIDATE PROCEEDINGS AND 
| FOR A HEARING ON PENDING MOTIONS 
  

The plaintiffs, by their undersigned counsel, respectfully| 

H move the Court to add as additional parties-defendant in the | 

above proceeding, the present members of the defendant Board 

of Education in their representative and individual capacity: 

William E. Poe, Chairman, Dr. Carlton G. Watkins, Vice Chair- 

  man, Phillip O. Berry, William H. Booe, Thomas B. Harris, 

Julia Maulden, Sam S. McNinch, III, Jane Scott and C. D. 

Spangler, Jr.; the additional parties-plaintiff in the pro- 

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H ceeding, Louella Cuthbertson v. Charlotte-Mecklenburg Board of   

Education, W.D.N.C., Civil No. C-C-73-69: Mrs. Louella | 
  

| Cuthbertson, for herself and for her minor children, Shirley 

 



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Jean Cuthbertson, Roger Darin Cuthbertson, and Cathy Lyn 

} Cuthbertson; Luther J. Reynolds, for himself and for his minor 

children, Barbara S. Reynolds, Elgin G. Reynolds and John E. 

Reynolds; Mrs. Virginia Jackson, for herself and for her 

minor children, Robert Jackson, Charles T. Jackson, Brenda 

i Jackson, Robert Anderson and Gerald Anderson; Mrs. Charles R. 

Helms, for herself and her minor children, Stewart LaDon Helms 

and Charles Derrick Helms; Donald Ray Jones, for himself and 

his minor child, Larry Vance Jones; Mrs. David Moore, for her- 

self and for her minor child, Bruce Edward Moore; Mrs. Mary Jo 

tH Helms, for herself and for her minor child, Earl Ray Helms, Jr. 3 

I Elliott Sanders, for himself and for his minor child, Jerry 

Michael Sanders; Mrs. Joe C. Helms, for herself and for her 

minor child, Dwight D. Helms; Ben Thompson, for himself and for | 

his minor children, Dianne Thompson, Ben Franklin Thompson 

and Gloria Jean Thompson; Mrs. Sally I. Lewis, for herself and 

for her minor children, Deborah V. Lewis and Karen L. Lewis; 

Robert B. Watson, Sr., for himself and for his minor child, 

} Jeanne Elizabeth Watson, Ben C. Crawford, for himself and for 

his minor child, Christina Crawford; Douglas IL. Shivar, for 

| himself and for his minor child, Shelly Shivar; Joseph Touch, 

for himself and for his minor children, Mark Wayne Touch and 

i Trent Alan Touch; Mrs. Lols C. Reeder, for herself and for her 

minor children, Dawn Lee Reeder and Mark Louis Reeder; 

Mrs. Elizabeth Roberson, for herself and for her minor child, 

Christie Anderson Roberson. Alternatively, the plaintiffs 

 



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{ pray that the Court merge this proceeding and the Cuthbertson | 

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proceeding and align the parties according to their respective | 

interest or that the Court consolidate the two proceedings. 

hearing the several motions pending in Swann v., Charlotte- 
  

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I Plaintiffs further pray that the Court calendar for immediate | 

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Mecklenburg Board of Education. In support of their motion, | 
  

the plaintiffs show the Court the following: 

i 1. This action has now been pending for more than 8 

vears. This Court has issued more than a score decisions and 

fH orders. See, @.9., 300 FF. Supp. 1358, 1381: 306 -F. Supp. 1291, 

| 1299; 311 PF. Supp. 1265; 328: :F. Supp. 1346; 334 F. Supp. 623. 

The case has been before the Fourth Circuit and the Supreme 

i Court on more than 3 occasions. See, e.g., 369 F.28 29 (1.966); | 

1413 P.28 138 (1970); 444 P.24 100 (1971); 402 U.S. 1 (1971), 

Hl 403 U.S. 912; 402 U.S. 43. The several decisions in this case 

now clearly establish the affirmative obligation of the Board 

to desegregate and to maintain desegregated schools. 

I 2.2 "In reaffirming the position in 1971 this Court, in 

approving a plan which the plaintiffs contended would lead to 

(| re-segregation of the schools, again directed: | 

| 'That no school be operated with I 

I an all-black or predominantly black | 

| student body." | 

"That the defendants maintain a 

continuing control over the race of 

children in each school, just as was 

{ done for many decades before Brown v. 

| Board of Education, and maintain the | 

I racial make-up of each school (including | 
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| any new and any re-opened schools) to 

prevent any school from becoming racially 

identifiable." 

 



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I what 'freedom of choice’ or 

[| ' freedom of transfer' may not be 

I allowed by the Board if the [cumulative] 

1 effect of any given transfer or group of 

transfers is to increase [substantially] 

: the degree of segregation in the school 

from which the transfer is requested or 

in the school to which the transfer is 

desired." 

H "That the Board retain its statutory 

power and duty to make assignments of 

pupils for administrative reasons, with or 

without requests from parents. Administrative 

transfers shall not be made if the [cumulative] | 

result of such transfer is to restore or 

increase [substantially] the degree of 

segregation in either the transferor or 

the transferee school." 

"That 1f transfers are sought on 

grounds of ‘hardship', race will not be | 

H a valid basis upon which to demonstrate 

‘hardship’ .” 

"That the Board adopt and implement 

a continuing program, computerized or 

otherwise, of assigning pupils and teachers 

during the school year as well as at the 

start of each year for the conscious purpose | 

H of maintaining each school and each faculty 

| in a condition of desegregation." | 

1 334 F. Supp. 623 at 627, quoting from the February 5, 1970 

order, 311 F. Supp. 265 at 268-269, as amended August 3, 1970, 

318 PF. Supp. 786, 801-802, These orders were affirmed.402 U.S. 

H 1-197): 444:FP. 28 100 (1971). | 

3. The Board has failed to comply with the Court order. 

Several schools have now or are becoming re-segregated because 

f of the Board's plan and the Board's failure "to adopt and 

H implement a continuing program...of assigning pupils...for the 

I conscious purpose of maintaining each school...in a condition 

of desegregation". Plaintiffs, on November 8, 1972, moved the | 

} court for further relief because of the failure of the Board | 
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H to comply with the previous orders of the Court. No hearing 

has yet been calendared with respect to the motion. : 

4. The March 28, 1973 report of the Board confirms that | 

1 several schools have become re-segregated and that others will 

do so unless further affirmative steps are directed by the 

Court. The Board suggests that it may have a plan or some 

| proposed modifications by May, 1973. Published reports in- | 

dicate, however, that inadequate steps are being considered to | 

effectively desegregate and to maintain desegregated schools | 

and to eliminate the inequities of the present plan. 

. Additionally, several parents have now filed a new U
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proceeding, Cuthbertson v. Charlotte-Mecklenburg Board of 
  

I Education, seeking to relitigate the same basic issues already   

decided in Swann. 

6. Moreover, as noted by the Supreme Court in Moore Vv.   

Charlotte-~-Mecklenburg Board of Education, 402 U.S. 47, 
  

Cuthbertson does not present a case or controversy within the 
  

meaning of Article III of the Constitution since both the | 

Cuthbertson plaintiffs and the defendant Board of Education 
  

desire basically the same result. 

7. In order to protect the interest of the plaintiffs = | 

in Swann, the jurisdiction of the Court and to avoid time 

  consuming litigation, the Court should add the Cuthbertson 

1 : ig nr gir on 1 
H plaintiffs as parties-defendant, merge or consolidate the 
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i Swann and Cuthbertson proceedings and re-align the parties 

{| according to their respective interests. Such re-alignment, 

H the plaintiffs feel, would require listing the Cuthbertson   

i plaintiffs as parties-defendant in the Swann proceeding. Both 

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cases present the same basic issue of law and fact and are 

| appropriate cases for merger Or consolidation. 

| 7. Presently pending before the Court in Swann, are 

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| plaintiffs' motions for an order awarding counsel fees, ex- 

penses and costs and for further relief seeking an order di- 

recting that the Board comply with the previous orders of the 

Court. Plaintiffs request that these notions be set for 

immediate hearing by the Court. 

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jo WHEREFORE, plaintiffs respectfully pray that the 

Court add the Cuthbertson plaintiffs as additional parties- 
  

defendant or alternatively that the Court merge or consolidate | 

  the Swann and Cuthbertson proceedings and re-align the parties 

( according to their respective interests. The plaintiffs further 

pray that the Court set the pending motions in Swann for 

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ll immediate hearing, award the plaintiffs their costs herein, in- 

cluding reasonable counsel fees and grant such other and 

further relief as the Court may deem the plaintiffs entitled. 

Respectfully submitted, 

1 | = or SE 

i go a 7. ah 

| SEONRAD O. PEARSON | 
| 203 1/2 East Chapel Hill Street | 

i Durham, North Carolina 

    

  

| J. LeVONNE CHAMBERS 
{ Chambers, Stein, Ferguson & Lanning 

237 West Trade Street 

Charlotte, North Carolina 

JACK GREENBERG 

JAMES M. NABRIT, III 

10 Columbus Circle 

New York, New York 

Attorneys for Plaintiffs 

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{ CERTIFICATE OF SERVICE 

The undersigned hereby certifies that he has this day | 

Il served copies of the foregoing Motion to Add Additional 

Parties-Defendant,to Merge or Consolidate Proceedings and for | 

i a Hearing on Pending Motions upon opposing counsel, by de- | 

! positing copies of same in the United States mail, postage | 

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i prepaid and addressed to: 
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| Mr. William J. Waggoner | 

i Waggoner, Hasty and Kratt 

| Attorneys at Law 

| Suite 723, Law Building | 

{ Charlotte, North Carolina 28202 
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I and | 

Mr. Whiteford S. Blakeney | 
| Blakeney, Alexander and Machen | 

| Attorneys at Law | 
| North Carolina National Bank Building 

1 Charlotte, North Carolina 28202 

I This 2nd day of April, 1973. 

| Dans RI | 
I torney for Plaintiffs 

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