Petition — Cuthbertson v. Charlotte-Mecklenburg Board of Education

IN THE

Supreme Court of the United States

no. €5-1819

MRS. LOUELLA CUTHBERTSON, ET AL,

Petitioners

vs.

CHARLUTTE-MECKLENBURG

BOARD OF EDUCATION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

WHITEFORD S. BLAKENEY

Charlotte, North Carolina

Attorney for the Petitioners

INDEX

Page No

THE OPINION OF THE COURT OF

APPEALS AND THE ORDER OF THE

I rr ee 2

ERS ee al Wane es ee aa ee 2

QUESTION PRESENTED.... ....................... 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 3

lad

STATEMENT OF THECASE..................... 3

REASONS For THE GRANTING OF A

A a 5

I. It Is An Established Principle That The

United States Constitution Does Not

Permit The States Or The Federal

Government To Impose Restrictions

Or Directives Upon Any Person Because

Of His Race Or Color

II. Governmental Restrictions And Directives

On The Basis Of Race Are Being Imposed

In The Public Schools, And Specifically

In The Charlotte-Mecklenburg

I RO ee ee 12

III. The Orders Of The District Court In The

Swann Case Do Not Disqualify The

Plaintiffs In This Case From Seeking

Relief Against Racial Restrictions And

EE So a oe a cea eee re ee 15

Page No. Page No.

IV. Constitutional Right May Not Be Denied, Bynum vs. Schiro, 219 F. Supp. 204 (1963),

And Constitutional Wrong May Not Be affirmed 375 U. S. 395, 11 L. Ed. 2d 412,

Imposed, In The “Equitable Discretion” 84 S. Ct. 453 (1964) seh ae ala ae he tee ere 468 a 8

Of A Court Or As A “Remedial” Or Conley vs. Gibson, 355 U. S. 41, 2 L. Ed 2d

Corrective” Measure ................. 19 & & & |. , Sa anear ae aan 6

oo re PS Pe Agi Fos: 35 Davis vs. Schnell, 81 F. Supp. 872 (S. D.

Ala., 1949) affirmed, 336 U.S.933 (1949) ..... 9

CITATIONS Dawson vs. Baltimore, 220 F. 2d 386 (4th Cir.,

Cases: 1955), affirmed 350 U. S.877 (1955) ......... 8

Alexander vs. Holmes County School Gomillion vs. Lightfoot, 364 U.S. 339 (1960) ... 9

Board, 396 U. S. 19, 24 L. Ed 2d 19, Goss vs. Board of Education, 373 U. S. 683,

I ns ou lac pee bre caida de 18 83 S. Ct. 1405, 10 L. Ed 2d 632 (1963)......... &

Anderson vs. Martin, 375 U.S. 399, 11 L. Ed Guinn vs. United States, 238 U. S. 347 (1915) .. 9

2d 430, 84 S. Ct. 454 (19064) ................ 10

Hamm vs. Virginia State Board, 230 F. Supp.

Bailey vs. Patterson, 369 U. S.31 (1962) ....... 9 156 (1964), affirmed, 379 U. S. 19, 13 L.

Bolling vs. Sharpe, 347 U. S. 497 (1954) ....... 15 | Ed 2d 91, 85S. Ct. 157 (1964) ............. 10

B t _ Viraini q 364 U. S. 454 (1960) __.. Heart of Atlanta Motel vs. United States,

ene = ; vi pia eee: 379 U.S.241 (1964) ................. eee. 9

ra vs. School Board of Richmond, ;

Virginia, 462 F. od 1058 (4th Cir., 1972), Hill vs. Texas, 316 U. S. 400, 86 L. Ed 1559,

affirmed 412 U.S. 92 (1973) ................ 18 Fg. EC a aren 27

Browder vs. Gayle, 142 F. Supp. 707 (M. D. Ala., Hirabayashi vs. United States, 320 U. S. 81,

1956), affirmed 352 U.S. 903 (1956) ......... 9 63 S. Ct. 1375, 87 L. Ed 1774 (1943) .......... 8

Brown vs. Board of Education, 347 U. S. 483, Hunter vs. Erickson, 393 U.S. 385 (1969) a en 9

98 L. Ed 873, 74 S. Ct. 686 (1954) and 349 U. S. Jenkins vs. McKeithen, 395 U. S. 411,

294, 99 L. Ed 1083, 75 S. Ct. 753 (1955) .... .7, 15 93L.Ed2d404(1969)..................... 5

Burton vs. Wilmington Authority, 365 U. S. Johnson vs. Virginia, 373 U.S. 61 (1963) ...... .

ee ED. bs cn no Vk oe eee a eo 8

ii iii

Katzenbach vs. McClung, 379

U. &, SG Cee... ssid caeed ae ae eee 9

Lee vs. Washington, 390 U.S. 333 (1968) ...... 8

Lombard vs. Louisiana, 373 U. S. 267 (1973) ... 9

Louisiana vs. United States,

Sam U. B, ME Cae + 6 ocns boc erdk nee 9

Loving vs. Virginia, 388 U.S. 1, 18 L. Ed

2d 1010, 87 S. Ct. 1817 (1967) ............... 11

Milliken vs. Bradley, 418 U..S. 717 (1974) ..... 19

Myers vs. Anderson, 238 U.S. 368 (1915) ..... 9

Nixon vs. Condon, 286 U.S. 73 (1932) ..... 7.

Olmstead vs. United States, 277 U. S. 438,

72 L. Ed 944, 48S. Ct.564(1928) ........... 35

Peterson vs. Greenville, 373 U.S. 244 (1963) ... 9

Reitman vs. Mulkey, 387 U. S. 369 (1967) ..... 9

Scheuer vs. Rhodes, 416 U. S. 232,

40 L. Ed 2d 90, 94S. Ct. 1683 (1974) .......... 6

Shelley vs. Kraemer, 334 U.S. 1, 92 L. Ed

1161, 68 S. Ct. 836 (1948) ............ 11, 16, 17

Smith vs. Allwright, 321 U.S.649(1944).... . 9

Spencer vs. Kugler, 326 F. Supp. 1235,

affirmed 404 U. S. 1027 (1972) .............. i9

State of Missouri vs. Canada, 305 U. S. 337,

83 L. Ed 208, 59 S. Ct. 232 (1938) ............ 17

iv

Page No.

Swann vs. Charlotte-Mecklenburg Board of

Education, 402 U. S. 1, 28 L. Ed 2d 554,

ee 18, 22

Terry vs. Adams, 345 U.S. 461 (1952) ........ 9

Truax vs. Corrigan, 257 U. S. 312, 42 S. Ct. 124,

ee ewe es 23

United States vs. Jefferson County Board of

Education, 380 F. 2d 385 (5th

neds cue ss sese: 24, 25, 31, 32

Watson vs. Memphis, 373 U.S. 526 (1963) .... 8

Wolman vs. Tose, 467 F. 2d 29

ee see cecentoes 6

Statutes:

ESE 2

ecw c cece ences 8,9

1004 Ciwl Rigite Act ...................... 8,9

Constitutional Provisions:

Fifth Amendment to the

Constitution of the United States............ 3

Fourteenth Amendment to the

Constitution of the United States ............ 3

Textbook :

Busing as a Judicial Remedy: A Socio-Legal

Reappraisal”, Indiana Law Review, Volume 6,

cei wssdcsesesc. 34

IN THE

Supreme Court of the United States

NO.

MRS. LOUELLA CUTHBERTSON, ET AL,

Petitioners

vs.

CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES -COURT OF APPEALS FOR THE

FOURTH CIRCUIT

To the Honorable, the Chief Justice and the

Associate Justices of the Supreme Court

of the United States:

The Petitioners pray the Court for a writ of certio-

rari directed to the United States Court of Appeals

for the Fourth Circuit, to the end that this Court may

review a decision which that Court has rendered in

1

2

a case involving the parties above-named, and the

Petitioners respectfully show to the Court:

THE OPINION OF THE COURT OF APPEALS AND

THE ORDER OF THE DISTRICT COURT

The Opinion of the United States Court of Appeals

for the Fourth Circuit has not yet been printed in the

official reports, but is hereinafter set forth in the Ap-

pendix to this Petition.

The case came to the Court of Appeals upon appeal,

by the Petitioners herein, from an Order of the United

States District Court for the Western District of North

Carolina. The Order of the District Court is likewise

set forth in the Appendix to this Petition.

JURISDICTION

The Opinion of the Court of Appeals, embodying

its decision and judgment, is dated March 18, 1976,

and was entered on that date.

Jurisdiction to review, by writ of certiorari, the de-

cision of the Court of Appeals is conferred on this

Court by the provisions of 28 U. S. C. 1254(1).

QUESTION PRESENTED

The Plaintiffs,’ both black and white, having al-

leged that each of the minor Plaintiffs, because of his

1Now Petitioners before this Court.

3

race and for no other reason whatever, is being

barred by a governmental agency from attending a

public school he wishes to attend and is qualified to

attend, and is instead being forced by the govern-

mental agency to attend a different school, solely

because of his race—and that thereby the rights of

the Plaintiffs under the Constitution of the United

States are being violated—is it now the law that such

allegations state no cause of action at all and that the

Plaintiffs are to be dismissed from Court without trial

or hearing?

CONSTITUTIONAL PROVISIONS INVOLVED

“No person . . . shall be . . . deprived of life, liberty,

or property, without due process of law”. Fifth Amend-

ment to the Constitution of the United States.

“No state shall . . . deprive any person of life, lib-

erty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protec-

tion of the laws”. Fourteenth Amendment to the Con-

stitution of the United States.

STATEMENT OF THE CASE

After the filing of the Plaintiffs’ Complaint in the

District Court, that Court ruled, and the Court of Ap-

peals later affirmed, that the allegations set forth in

the “Question Presented” above do not state any cause

of action and are to be dismissed without trial.

4

The District Court made its ruling of dismissal

without hearing any oral argument from the Plain-

tiffs. Similarly, the Court of Appeals afforded the

Plaintiffs no opportunity to present any oral argu-

ment.

More specifically, the brief sequence of proceedings

in the case has been as follows. Upon the filing of the

Plaintiffs’ Complaint in the District Court, the De-

fendant filed an Answer and also a Motion to Dismiss,

on the grounds that the Complaint failed “to state a

claim upon which relief can be granted” (2, 30, 31°).

Thereafter, the District Court issued a Memorandum,

expressing the opinion that the Plaintiffs’ suit should

be dismissed for failure to state a cause of action (44).

At the same time, however, the District Court di-

rected that the Clerk of Court should “hold this file in

an inactive status until final action has been taken” in

the case of Swann vs. Mecklenburg Board of Educa-

tion, which was then still pending in that court (447).

On July 30, 1975, in a one-sentence “Order of Dis-

missal”, the District Court ruled that: —“The Motion

1Unless otherwise indicated, all page references are to the

record in the case, as embodied in the Appendix filed by the

Plaintiffs in the Court of Appeals and now on file in this

Court.

2In the same Memorandum, the Court remarked that the

present case “has been consolidated with Swann vs. Board of

Education”. That comment is, however, incorrect. This case

was never consolidated with the Swann case.

5

/

of the Defendant to dismiss the Complaint is allowed,

and this action is dismissed” (Appendix to this Peti-

tion, hereinafter page 4a).

From the District Court’s ruling, the Plaintiffs ap-

pealed to the United States Court of Appeals for the

Fourth Circuit. As noted above, the Court of Appeals,

without hearing argument, issued its Opinion, on

March 18, 1976, affirming the District Court’s Order of

Dismissal (Appendix to this Petition, hereinafter page

la).

REASONS FOR THE GRANTING OF

A WRIT OF CERTIORARI

It Is An Established Principle That The United States

Constitution Does Not Permit The States Or The

Federal Government To Impose Restrictions

Or Directives Upon Any Person Because

Of His Race Or Color

It is first important, even though elementary, to

note that upon a motion to dismiss for failure to state

a cause of action, the allegations of a complaint are

to be accepted as true.

“For the purposes of a motion to dismiss, the

material allegations of the complaint are taken as

admitted”. Jenkins vs. McKeithen, 395 U. S.

411, 421, 23 L. Ed 2d 404, 416

(1969) :

6

“In appraising the sufficiency of the complaint

we follow, of course, the accepted rule that a com-

plaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plain-

tiff can prove no set of facts in support of his claim

which would entitle him to relief’.

Scheuer vs. Rhodes, 416 U. S. 232,

236, 40 L. Ed 2d 90, 94 S. Ct. 1683

(1974), quoting Conley vs. Gibson,

355 U. S. 41, 45-46, 2 L. Ed 2d 80,

78 S. Ct. 99 (1957)

“It is elementary that a motion to dismiss will be

denied unless it appears to a certainty that no pos-

sible set of facts could be proved to support plain-

tiff’s claim”.

iff's claim Wolman vs. Tose, 467 F. 2d 29,

35 (4th Cir., 1972)

Thus, for purposes of this Petition, it is to be ac-

cepted from the allegations of the Complaint that:

Government, through the Defendant, a public

agency —

Is barring the respective minor Plaintiffs, both

black and white, from public schools they wish to

attend, and is instead forcing them to attend other

public schools they do not wish to attend—

For no reason whatever, other than the race and

color of the respective Plaintiffs.

7

In the present posture of this case, it stands un-

denied that governmental restriction and compulsion

is being “shaped and controlled and forcibly imposed”

upon the respective Plaintiffs, because of their race

and “solely according to their race and on no basis

other than that of race” (4).

Yet it is now established as a matter of fundamental

constitutional principle in this land that government

shall place no restriction or requirement upon any

citizen because of his race. To state this basic prin-

ciple in other terms, it is now firmly settled that if any

governmental authority takes note of a person’s race

and, by reason of what it ascertains to be his race,

places any requirement upon him—for example, bars

him from any place because of his race or compels

him to go to any place because of his race—then his

constitutional rights are thereby violated.

For decades now, particularly within the last

twenty-five years, this Court, has woven this principle

into the fabric of the law of this Nation. For example:

In the realm of public education, the landmark

case of Brown vs. Board of Education ruled and pro-

claimed that from that time forward “admission

to the public schools” of this country must be “on a

non-racial basis”. Brown vs. Board of Education,

347 U. S. 483, 98 L. Ed 873, 74 S. Ct. 686 (1954)

and 349 U. S. 294, 301, 99 L. Ed 1083, 1106, 75 S.

Ct. 753 (1955). ;

8

Regarding access to, and use of, public build-

ings, recreational facilities, parks, playgrounds,

courthouses, and all other publicly owned and op-

perated facilities, it has been repeatedly held, in var-

ious contexts and applications, that no distinctions

may be made on the basis of race. Johnson vs. Vir-

ginia, 373 U. S. 61 (1963); Watson vs. Memphis,

373 U. S. 526 (1963); Dawson vs. Baltimore, 220

F. 2d 386 (4th Cir., 1955), affirmed, 350 U. S. 877

(1955); Lee vs. Washington, 390 U. S. 333 (1968);

Burton vs. Wilmington Authority, 365 U. S. 715

(1961); See also, 1964 Civil Rights Act, 42 U.S.C.

§2000b(a).

““Distinctions between citizens solely because

of their ancestry are by their very nature odious

to a free people whose institutions are founded

upon the doctrine of equality’. Hirabayashi vs.

United States, 1943, 320 U. S. 81, 100, 63 S. Ct.

1375, 1385, 87 L. Ed 1774, 1786. “[R]acial classi-

fications are obviously irrelevant and invidious’.

Goss vs. Board of Education, 1963, 373 U. S. 683,

83 S. Ct. 1405, 10 L. Ed 2d 632”.

Bynum vs. Schiro, 219 F. Supp. 204

208 (1963), affirmed, 375 U. S. 395,

11 L. Ed 2d 412, 84S. Ct. 452 (1964)

This is likewise the law as to establishments of-

fering food and lodgings to the public. Lombard vs.

9

Louisiana, 373 U. S. 267 (1973); Peterson vs.

Greenville, 373 U. S. 244 (1963); Heart of Atlanta

Motel vs. United States, 379 U. S. 241 (1964);

Katzenbach vs. McClung, 379 U. S. 294 (1964);

See also, 1964 Civil Rights Act, 42 U. S. C. §2000a,

et seq.

The same is true as to publicly owned or publicly

assisted housing. Reitman vs. Mulkey, 387 U.S. 369

(1967); Hunter vs. Erickson, 393 U.S. 385 (1969).

The same principle has been firmly reiterated as

to all common carriers and public transportation.

Browder vs. Gayle, 142 F. Supp. 707 (M. D. Alla.,

1956), affirmed, 352 U. S. 903 (1956); Boynton

vs. Virginia, 364 U. S. 454 (1960); Bailey vs. Pat-

terson, 369 U. S. 31 (1962).

As to all standards, procedures and arrange-

ments affecting public elections, distinctions of

race are clearly held to be constitutionally imper-

missible. Guinn vs. United States, 238 U. S. 347

1915); Myers vs. Anderson, 238 U. S. 368 (1915);

Nixon vs. Condon, 286 U. S. 73 (1932); Smith vs.

Allwright, 321 U. S. 649 (1944); Terry vs. Adams,

345 U. S. 461 (1953); Louisiana vs. United States,

380 U.S. 145 (1965); Davis vs. Schnell, 81 F. Supp.

872 (S. D. Ala., 1949), affirmed, 336 U. S. 933

(1949); Gomillion vs. Lightfoot, 364 U. S. 339

(1960).

10

Thus a State requirement that election ballots

identify the race of candidates for public office is

held to be a violation of the Fourteenth Amend-

ment.

“Race is the factor upon which the statute op-

erates and its involvement promotes the ultimate

discrimination which is sufficient to make it in-

valid. Goss vs. Board of Education, supra, 373

U.S. at page 688, 10 L. Ed 2d 636”.

Anderson vs. Martin, 375 U. S. 399,

404, 11 L. Ed 2d 430, 434, 84 S. Ct.

454 (1964)

Official separation of voting and tax assessment

records according to race is likewise held to be un-

constitutional under the Fourteenth Amendment.

“Subsequent decisional law has made it axio-

matic that no State can directly dictate or casu-

ally promote a distinction in the treatment of

persons solely on the basis of their color”.

Hamm vs. Virginia State Board,

230 F. Supp. 156, 157 (1964),

affirmed, 379 U. S. 19, 13 L. Ed

2d 91, 85 S. Ct. 157 (1964)

This Court has also held that it is unconstitu-

tional for courts to enforce even private covenants

which make racial distinctions. :

11

“We hold that in granting judicial enforce-

ment of the restrictive agreements in these cases,

_the States have denied petitioners the equal pro-

tection of the laws and that, therefore, the action

of the state courts cannot stand”.

Shelley vs. Kraemer, 334 U. S. 1,

20, 92 L. Ed 1161, 1184, 68 S. Ct.

836 (1948)

Similarly, it is now established that with regard

to marriage, government can enforce no prohibi-

tions or restrictions on the basis of race.

“We have consistently denied the constitution-

ality of measures which restrict the rights of citi-

zens on account of race . . . Under our Constitu-

tion, the freedom to marry, or not marry, a person

of another racé resides with the individual and

cannot be infringed by the State”.

Loving vs. Virginia, 388 U. S. 1,

11-12, 18 L. Ed 2d 1010, 1018,

87 S. Ct. 1817 (1967)

Such then is the law in our land today, firm and

clear, that the United States Constitution does not

permit government, either State or Federal, to impose

restrictions or directives upon any person on the basis

of his race or color.

12

Governmental Restrictions And Directives On The

Basis Of Race Are Being Imposed In The Public

Schools, And Specifically In The Charlotte-

Mecklenburg School System

In the midst of the strong, consistent and authori-

tative state of the law set forth above, there has arisen,

within the last several years, an extraordinary para-

dox. This development has occurred particularly in

one area, that of public education. In this area, vari-

ous courts have ruled, and are ruling, that “admission

to the public schools” of this country must proceed on

a racial basis rather than “on a non-racial basis”.

Thus, public school authorities are being ordered by

courts to observe the race and color of the children in

their school systems and to sort them out racially,

and then assign them and send them in various direc-

tions, according to their race and color, so as to ac-

complish a compulsory mixing of races in the various

schools of the respective school systems. The school

children are forcibly required to obey and conform

to these racially determined assignments, no matter

what may be the inconvenience and burden to them.

Tis is obviously and diametrically contrary to the

central concept developed through the years in the

numerous cases outlined above, namely, that govern-

ment shall not impose restrictions or directives of any

13

sort upon its citizens on the basis of their race. Spe-

cifically, in the realm of public education, it is a 180

degree reversal of the principle laid down in the

pivotal case of Brown vs. Board of Education.

Nor is the reversal merely a matter of illogic and

of contradiction in concept and theory. Bevond that,

it is a new and hard regime of governmental dictation

on a broad and massive scale, to which both black

and white citizens are being steadily subjected, solely

by reason of their race and color.

Thus it is that in the present case, each of fifteen

black school children states the extraordinary fact

that “because he is black”, and for no other reason,

“the defendant excludes and bars him from the school

which he wishes to attend near his home”, and “solely

because he is black, the defendant forcibly compels

him, against his will, to attend a distant school which

the defendant has, on account of his race, prescribed

for him” (4-16). Each of sixteen other plaintiffs, who

are white makes the same statement of fact, except as

to the difference in racial identification (4-16).

The respective Plaintiffs state that the various dis-

tances from their homes to the schools they wish to

attend and are qualified to attend, but which they are

because of their race barred from attending, are as

little as 180 yards round-trip, whereas the distances

14

from their homes to the schools they do not wish to at-

tend, but which they are because of their race forced

to attend, are as much as 34 miles round-trip.

All this compulsion is summarized in current term-

inology as “forced busing”. Actually, the school chil-

dren who are subjected to “forced busing” are not re-

quired to ride a bus. They are, however, required to

get to the assigned schools in oné way or another, and

bus transportation is offered to them.

The defendant’s explanation and defense, as to the

directive which it has thus placed upon the plaintiffs,

is that it is acting under “orders of the United States

District Court for the Western District of North Caro-

lina issued in Swann, et al vs. Charlotte-Mecklenburg

Board of Education, et al, Civil Action No. 1974” (32-

40). Thus, the defendant’s position is that the plain-

tiffs do not have, and cannot have, a cause of action

because the matters complained of came about “pur-

suant to orders” of the District Court.

It goes without saying, however, that the defendant

school Board and the District Court alike are subser-

vient to the United States Constitution. More spe-

cifically, Federal authorities, such as the United

States Courts, and State authorities, such as the de-

fendant, are, on the matters here at issue, controlled

respectively by the provisions of the Fifth and Four-

teenth Amendments to the Constitution. Thus, in

Bolling vs. Sharpe, this Court, upon the Fifth Amend-

15

ment, reached the same conclusion as to racial com-

pulsion imposed by Federal agencies that it reached

in Brown vs. Board of Education, upon the Four-

teenth Amendment, as to racial compulsion imposed

by State agencies. Bolling vs. Sharpe, 347 U. S. 497

(1954); Brown vs. Board of Education, 347 U. S. 483

(1954).

The question therefore remains as to whether the

plaintiffs’ Complaint, in the light of the fundamental

principle and the manifold authorities hereinabove

cited, does or does not state a cause of action under

the supreme law of the land, the Constitution of the

United States.

Ill.

The Orders Of The District Court In The Swann Case

Do Not Disqualify The Plaintiffs In This Case From

Seeking Relief Against Racial Restrictions

And Directives

As to the defense that there can be no cause of

action with respect to the compulsions placed upon

the plaintiffs, the District Court having broadly author-

ized and directed such compulsions in the Swann

case, it is first and fundamentally to be observed that

in the Swann case no person upon whom the compul-

sions would be imposed, was before the Court pleading

his constitutional ri¢‘1t in opposition to those compul-

16

sions—as each of the plaintiffs in the present case is

now doing.

It is true that in the Swann case constitutional

questions, or some aspects of constitutional questions,

were discussed and considered. Any such discussion

and consideration, in that case was, however, legally

in the abstract. In Swann, the court was developing a

“plan” or “program” for the assignment of children

generally in the Charlotte-Mecklenburg public school

system. No party in that case was raising and urging

upon the court any plea or contention that his consti-

tutional rights would be invaded and violated by the

plan or program there under consideration.

The plaintiffs in the Swann case were insisting

upon such a plan or program, and could certainly

make no adversary presentation of the constitutional

rights of persons who would be subjected, against

their will, to the compulsions of the plan or program.

As to persons, such as the plaintiffs in Swann who

were seeking what the plaintiffs in the present case

are opposing, this Court has said:

“The Constitution confers upon no individual

the right to demand action by the State which re-

sults in the denial of equal protection of the laws

to other individuals”.

Shelley vs. Kraemer, 334 U.S. 1,

22, 92 L. Ed 1161, 1185, 68 S. Ct.

836 (1948)

17

Nor could the Charlotte-Mecklenburg school board,

defendant there as it is here, substitute or act as proxy

for the individual citizens who possessed the constitu-

tional rights which are now raised—and which no

citizen was then in court to raise. The constitutional

rights which the present plaintiffs now plead are theirs

and are given and guaranteed to them personally and

individually.

“The rights created by the first section of the

Fourteenth Amendment are, by its terms, guaran-

teed to the individual. The rights established are

personal rights”.

Shelley vs. Kraemer, 334 U. S. 1,

22, 92 L. Ed 1161, 1185, 68 S.

Ct. 836 (1948)

This is very clearly expressed by this Court in State

of Missouri vs. Canada. There the court emphasized

that “the essence of constitutional right is that it is a

personal one’ ”, and “ ‘it is the individual who is en-

titled to the equal protection of the laws’”. State of

Missouri vs. Canada, 305 U. S. 337, 351, 83. L. Ed 208,

214, 59 S. Ct. 232 (1938).

Furthermore, as to the defendant's position that the

plaintiffs can have no cause of action with respect to

the compulsions they are being subjected to, since

those compulsions are imposed “pursuant to” court

directives in the Swann case, the following considera-

tions are to be noted. ;

18

When the Swann case was before this Court, the

Court said that “once the affirmative duty to desegre-

gate” a public school system has been fulfilled, that

school system “would then be ‘unitary’ in the sense

required by our decisions in Green and Alexander’ ”,

and that “neither school authorities nor District

Courts” would then be required to take continuing

action with regard to “the racial composition”, of the

schools in that system. Swann vs. Char!vtte-Mecklen-

burg Board of Education. 402 U. S. 1, 31, 22, 28 L.

Ed 2d 554, 91 Ct. 1267 (1971).

In Green and Alexander this Court had defined “a

unitary school system” as one “within which no person

is to be effectively excluded from any school because

of race or color”. Alexander vs. Holmes County School

Board, 396 U.S. 19, 21, 24 L. Ed 2d 19, 21, 90S. Ct. 29

(1969).

The District Court apparently now considers the

Charlotte-Mecklenburg school system to be thus “uni-

tary” for it has entered a “final order” in Swann, stating

that its intendment is “to leave the constitutional

operation of the schools to the Board”, and directing

“that the file be closed”. Swann vs. Charlotte-Mecklen-

burg Board of Education, Civil Action No. 1974, in the

United States District Court for the Western District

of North Carolina, Final Order, dated July 11, 1975.

To similar effect see Bradley vs. School Board of

Richmond, Virginia, 462 F. 2d 1058 (4th Cir., 1972),

19

affirmed, 412 U.S. 92 (1973); Spencer vs. Kugler, 326

F. Supp. 1235, affirmed, 404 U. S. 1027 (1972);

Milliken vs. Bradley, 418 U. S. 717 (1974).

The orders in Swann, therefore, do not disqualify

the plaintiffs from stating a cause of action against

the compulsions directed in that case, because: —(1)

No person raised in that case, as each of the plaintiffs

now does, the plea that the directives there issued

were in violation of his constitutional rights; and (2)

The Charlotte-Mecklenburg school system appears

to be judicially regarded as now “unitary” 50 that

“neither school authorities nor District Courts” are

“required” to take continuing action with respect to

“the racial composition” of these schools.

Apart from these considerations, however, the pri-

mary and fundamental reasons, earlier projected in

this Petition, as to why the plaintiffs are entitled to

relief against the restrictions and compulsions which

have been imposed upon them, will now be more fully

set forth.

IV.

Constitutional Right May Not Be Denied, And

Constitutional Wrong May Not Be Imposed, In The

“Equitable Discretion Of A Court Or As A

“Remedial” Or “Corrective” Measure

Under the many rulings of this Court, that govern-

mental compulsion placed upon a person because of

his race violates his constitutional right, it would cer-

tainly seem self-evident that when a plaintiff alleges

20

that he is being subjected to exactly such compulsion,

he is stating a legal cause of action.

Moreover, each of the plaintiffs in the present case

alleges specifically that the precise restriction and

compulsion condemned in Brown vs. Board of Edu-

cation is now being imposed upon him.

The exact adjudication in Brown was that it is a

violation of a person's constitutional right to exclude

him from any public school because of his race or

color. Green, Alexander and Swann, supra. Each

plaintiff in this case exactly so alleges, that is, that

“solely because” of his race and color, the defendant

governmental agency “excludes and bars him from

the school he wishes to attend” (4-16).

Further, each plaintiff alleges that “solely because”

of his race, the defendant governmental agency “for-

cibly compels him, against his will, to attend a distant

school which the defendant has, on account of his

race, prescribed for him” (4-16). This allegation is

also a re-allegation that the plaintiff is, because of his

race, being excluded from the school he desires to

attend.

For if a plaintiff seeks to attend school A, but solely

because of his race he is assigned to and compelled to

attend school B, then obviously it is his race that is

taking him away from, and preventing and excluding

him from attending, school A.

21

Thus, not only by directly barring the plaintiff from

entering school A, but also by compelling the plaintiff

to go to school B—all because of, and solely because

of, his race—the defendant doubly violates the

specific and exact command of Brown, namely, that

no person shall be excluded from a public school

because of his race.

These allegations, it must be remembered, stand

undenied upon the motion to dismiss. It must be ac-

cepted that what they declare to be occurring is indeed

and in truth occurring. Yet such occurrences are in

precise contravention of the very terms of Brown.

Nonetheless, it is ruled in the courts below that to

allege such facts, such truth, and such state of affairs,

contravening Brown and all the other holdings of this

Court recited above; fails to state a cause of action—

that to show and prove any such would be of no legal

point or materiality whatsoever—and that the courts

are therefore closed to all who seek to make such

proof or showing.

To all of this, the only answer or explanation put

forward is to the following effect: —That “at one time”

in “the past”, the defendant “maintained segregated

schools”—and that in such situation it is appropriate

and within the “equitable discretion” of courts, as a

“corrective” and “remedial” measure to suspend or

reverse the command of Brown that “admission to the

public schools” must be “on a non-racial basis” and to

22

require and order instead, for an “interim period”, the

“assignment of students on a racial basis”. Swann vs.

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

1, 22-29.

It is to be remembered that this concept was enunci-

ated in litigation where no person was pleading his

constitutional right against racial compulsion being

imposed upon him by a governmental agency.

Whether the absence of such plea, and such a pleader,

was judicially deemed to justify the pronouncement

of this concept in that case, does not appear.

In any event, the plaintiffs in the present case rest

their complaint upon the simple and basic proposition

that a public agency may not impose a purely racial

restriction or compulsion upon a citizen who is plead-

ing his individual and personal constitutional right

against that being done to him—which, it must be

emphasized, was not the case in Swann.

It is submitted that once a constitutional right is

adjudged and established, courts have no power and

no “discretion” to suspend it or to deny it to any person

who leads for its protection. Whatever is constitu-

tional’y guaranteed cannot be declared “out of effect”

for a season. When it has been definitively proclaimed,

as was certainly done in Brown, that any person has a

constitutional right not to be excluded because of his

race from any public school, then no governmental

23

authority, as against a person claiming that constitu-

tional right, can lawfully proceed to exclude him from

a public school because of his race—neither for

“remedial” or “corrective” purpose, nor for an “in-

terim” or any other period of time.

If nevertheless this is done and if he thereupon goes

to court alleging that he has a specific constitutional

right not to be excluded by governmental authority

from a public school because of his race, but that in

truth and in fact he is being excluded by govern-

mental authority from a public school because of his

race—then surely it cannot be validly ruled that his

allegations are a mere nullity, stating nothing of any

legal significance whatever.

Were it otherwise, and if constitutional rights could

be enforced or suspended, declared in effect or out of

effect, as courts or chancellors, magistrates or admin-

istrators might deem wise or desirable, then the Con-

stitution of the United States would indeed have

ceased to be supreme law, and a mighty rock would

have become but shifting sand.

“The Constiution was intended—its very purpose

was—to prevent experimentation with the funda-

mental rights of the individual”.

Truax vs. Corrigan, 257 U. S. 312,

338, 42 S. Ct. 124, 66 L. Ed 254,

265 (1921) -

24

It is a truly confused—a self-contradictory state of

affairs—that since black persons, because of their

race, were once excluded from public schools which

they wished to attend in the Charlotte-Mecklenburg

school system, therefore the “remedy” and “correc-

tive” for that is now to exclude them again, because

of their race, from public schools which they wish to

attend in the Charlotte-Mecklenburg school system.

In short, the prescription and cure for the constitu-

tional wrong of governmental restriction and com-

pulsion based on race is decreed to be more of the

same wrong, namely, governmental restriction and

compulsion based on race.

It is strange indeed that, for example, it is now said

to a black child: —“Twenty-five years ago, in this

same school system, your Father was barred from the

school he wished to attend because he was black.

Although that was later adjudged to be a violation of

his constitutional right, you also will now be barred

from the school you wish to attend, and for the same

reason, namely, that you are black”.

“The freedom of the Negro child to attend any

public school without regard to his race or color,

first secured in the Brown cases, is again lost to him

after a short life of less than thirteen years”.

United States vs. Jefferson County

Board of Education, 380 F. 2d 385,

419 (5th Cir., 1967—

concurring opinion )

25

“{W]hile professing to vouchsafe freedom and

liberty to Negro children, they have destroyed the

freedom and liberty of all students, Negro and

waite alike’. United States vs. Jefferson County

Board of Education, 380 F. 2d 385,

405 (5th Cir., 1967—

dissenting opinion )

The irony of the situation starkly appears when it

is realized that the plaintiffs, black and white, are in

court today pleading for the same thing that the plain-

tiffs in Brown went to court for twenty-two years ago.

The briefs filed in the Supreme Court by the plain-

tiffs in the Brown case, and the cases companion to it,

presented the very contentions that the plaintiffs are

now making in the-present case. For example’:

“The State of Kansas in affording opportunities

for elementary education to its citizens, has no

power under the Constitution of the United States

to impose racial restrictions and distinctions”.

Brief for the plaintiffs in the

Kansas case.

“This court... should decree that respondents,

lacking the constitutional power to assign pupils to

1S$ynopses of the various briefs for the plaintiffs in the

Brown case are set forth in 99 L. Ed at pages 1085-1104.

26

public schools on the basis of race, immediately

cease and desist using race as a factor in making

such assignments”.

Brief for the plaintiffs in the

District of Columbia case.

“Segregation or classification of respondents on

the basis of color by the state for determining

schools they shall attend violates the equal protec-

tion clause of the Fourteenth Amendment”.

Brief for the plaintiffs in the

Delaware case.

“Normal exercise of the judicial function calls

for a declaration that the state is without power to

enforce distinction based upon race or color in af-

fording educational opportunities in the public

schools. The Fourteenth Amendment prohibits a

state from making racial distinction in the exercise

of governmental power.

* * *

“The Fourteenth Amendment requires that a

decree be entered directing that appellants be ad-

mitted forthwith to public schools without distinc-

tion as to race or color”.

Brief for the plaintiffs in the

Virginia case.

27

The decree which the plaintiffs in the Brown case

requested of the court was that the school authorities

be ordered “to cease using race as a basis for deter-

mining admission, assignment or attendance in pub-

lic schools . . .” (Decree tendered by plaintiffs in the

Supreme Court of the United States in the Brown

case).

This Court granted that request. The plaintiffs now

make the same request. Surely it would not have been

granted then and be denied now.

“Nor is this Court at liberty to grant or withhold

the benefits of equal protection, which the Consti-

tution commands for all. . .

“Equal protection of the laws is something more

than an abstract right. It is a command which the

state must respect, the benefits of which every per-

son may demand”.

Hill vs. Texas, 316 U. S. 400,

406, 86 L. Ed 1559, 1563, 62 S. Ct.

1159 (1942)

Despite the undeniable fact that the plaintiffs in

Brown sought and obtained from this Court the land-

mark pronouncement that government may not, in

matters of assignment to public schools, place re-

striction or compulsion upon any person because of

his race, yet now the Opinion of the Court of Appeals,

28

in the present case, tells the plaintiffs that they have

no valid complaint, for that, the defendant’s “present

use of race in assigning some students is constitu-

tional” (Appendix to this Petition, hereinafter page

3a).

Immediate confirmation of the inherent fallacy

of this ruling is to be seen not only in the admission

of the defendant’s “present use of race”, but also in

the phrase “assigning some students”. How can the

“use of race in assigning some students”—but not

others—be constitutionally justified? Does the Con-

stitution of the United States protect only some of its

citizens from racial restriction and compulsion? Since

the protection is a constitutional one, how do school

administrators or judges or any other authority have

the power to decide who shall retain the protection

and who shall be divested of it—and for how long?

It is respectfully submitted that in such rulings, the

character of our Constitution is gradually but tragic-

ally transformed—becoming not so much that of a

great beacon light as that of a revolving weather vane.

There are still further aspects of the constitutional

rights here at issue, which should be given close at-

tention and consideration.

What is assured to the individual in the Fifth and

Fourteenth Amendments is protection against gov-

29

ernmental power and action in the respects set forth

in those Amendments. It is thus self-evident that

when it is shown that a person is under a govern-

mental compulsion which transgresses the protec-

tion of these Amendments, then what he is entitled

to is removal of the offending compulsion.

These constitutional provisions are, therefore,

shields to the individual. They do not provide in any

event for the placing of any sort of requirement upon

him. They provide only for the removal of govern-

mental requirements from him. Where they are ap-

plicable, their entire nature and purpose is to free the

citizen from a restriction or compulsion, not to im-

pose upon him any restriction or compulsion what-

soever.

Wholly consistent with this, Brown removed a re-

striction and compulsion theretofore existing. Wholly

inconsistent with the nature of these constitutional

rights, the orders now in question impose restriction

and compulsion.

Prior to Brown, there were in various states govern-

mental prohibitions against citizens of different

races attending a public school together. The issue in

Brown was whether an individual had a constitu-

tional right to have this restriction removed from

him, so that there would be no prohibition against

his attending a school with persons of a different

30

race. Brown held that the individual does have a

constitutional right against such prohibition and is

entitled to have it removed from him.

There was no claim in Brown, and no decision in

Brown, that any person had a constitutional right to

call on any governmental authority to force any per-

son, because of his race, to stay out of any public

school he wished to attend or go into any public school

he did not wish to attend. The plea and the decree in

Brown were exactly the opposite. The law laid down

in Brown does not require that such governmental

force be imposed upon any person. Precisely to the

contrary, it forbids the imposing of such governmen-

tal force upon any person.

The difference is total and crucial. Yet it seems to

elude many minds. It is the monumental difference

between the removal of governmental force from the

citizen and the imposition of governmental force

upon the citizen. It is the difference between increas-

ing individual freedom and diminishing individual

freedom.

Brown vs. Board of Education, and the many other

cases hereinabove cited, interpreted the Constitution

as granting and assuring liberty to citizens of differ-

ent races to come together, in public schools and oth-

erwise, if they so choose—free of any contrary gov-

ernmental restriction because of race. More recently,

31

however, there have been decisions, as in Swann, the

trend of which is to interpret the Constitution as au-

thorizing, and perhaps requiring, the withdrawal ot

such liberty and the governmental forcing of citizens

together, because of their being of different races, and

regardless of what may be their wish or choice in the

matter.

For government to force i.. citizens apart, because

of race, or to force its citizens together, because of

race, is equally wrong. The one is no less dictatorial

and oppressive than the other. It is submitted that the

United States Constitution requires neither — and

permits neither. The mandate of the Fifth and Four-

teenth Amendments is that the individual shall be

free from racially imposed governmental force in

either direction.

“It is unthinkable that our Constitution does not

contemplate a middle ground—no compulsion one

way or the other”.

United States vs. Jefferson County

Board of Education, 380 F. 2d 385

414 (5th Cir., 1967—dissenting

opinion )

In the decades of the 1950’s and 1960's, the tenor

and thrust of this Court’s decisions involving racial

questions was that the Constitution required that gov-

32

ernmental actions be color blind. More recently, vari-

ous Federal Court decisions, particularly in the realm

of public schools, view the Constitution as requiring

that governmental actions be preeminently and above

all color conscious.

The essential nature of the former decisions was

to free the individual from governmental force im-

posed because of race. The essential nature of the

latter decision is to impose governmental force upon

the individual because of race. The imperative need

is to regain the high ground and the sound principle

of the former decisions.

“The true answer remains, give [the school pu-

pil] absolute freedom of choice and see to it that he

gets that choice in absolute good faith”.

United States vs. Jefferson

County Board of Education,

380 F. 2d 385, 420 (5th Cir.,

1967—concurring opinion )

“Absolute good faith” in protecting the individual

from racial restriction or compulsion at the hands of

any and all governmental authority is indeed essen-

tial. All of the zeal and interest and concern that sur-

rounds this matter should be brought to bear to see

to it that this freedom is truly and genuinely accorded

to every school child—and that there is no govern-

mental action or practice or subterfuge to the con-

trary.

33

There must be impartial and vigorous enforcement

of this freedom from every side and in every quarter.

All governmental action which restricts individual

freedom on grounds of race should cease, whether

the thrust of such governmental action is in the direc-

tion of forcing racial separation or in the direction of

forcing racial mixing. Governmental requirement,

based upon racial considerations, is the evil and the

wrong in either case, and it is this that the Constitu-

tion forbids.

In the background of governmental directive,

shaped according to race, there is a no-doubt genuine

belief that it is best for those on whom it is imposed

—best for all public school children and for their com-

munities and for the Nation as a whole—and that it

will be of benefit psychologically and culturally, lift

educational achievement, improve race relations and

contribute to general sociological advancement.

Those subjects are, of course, outside the realm of

this argument, but it might be remarked in passing

that it seems reasonable to question whether forcing

children on purely racial grounds into schools—par-

ticularly distant schools which they do not wish to

atcend and which they attend only at great inconven-

ience—is likely to increase their motivation to apply

themselves in such schools, or likely to have good

effect upon their relations with their fellow students

34

there, or likely in any way to improve morale, dis-

cipline or standards of excellence in those schools.

Indeed, numerous sociological and educational

studies increasingly indicate that experience is prov-

ing such common sense doubts to be not only reason-

able but correct. Virtually none seem to reach any

opposite conclusions’.

Sociological pros and cons are, however, essentially

aside from the point, upon issues of constitutional

right. Whatever may be deemed sociologically desir-

able or undesirable, or progressive or regressive, it

cannot override the rights of the individual person, as

guaranteed to him by the Constitution. A person’s

constitutional rights do not depend upon anybody's

opinion as to what is best for him, nor upon the judg-

ment of any authority as to what will be beneficial to

him or to others. :

As expressed in Truax vs. Corrigan, supra, “the

very purpose” of a written Constitution was to place

the rights which it guarantees to the individual citi-

zen, beyond the reach of all who may believe that they

have better “plans” and “programs” for him.

It is important to remember the admonition of Jus-

tice Brandeis in Olmstead vs. United States:

1See, for example, “Busing as a Judicial Remedy: A Socio-

Legal Reappraisal”, Indiana Law Review, Volume 6, Number

4, 1973, in which a wide spectrum of research on this subject

is reviewed and analyzed.

35

“Experience should teach us to be most on our

guard to protect liberty when the government's

purposes are beneficent”.

Olmstead vs. United States,

277 U. S. 438, 479, 72 L. Ed 944,

957, 48 S. Ct. 564 (1928—

dissenting opinion )

In summary—it is obvious that the present-day

regime of racial restriction and compulsion in the

public schools is permeated with glaring inconsisten-

cies of principle and profound constitutional e1 >".

These are the sources of the continuing perplexity

and confusion, and of the unending controversy, on

this subject.

The true solution is to be found in freedom to the

individual — freedom without regard to his race —

freedom from any and all governmental restriction

or compulsion based on race.

CONCLUSION

Upon all of the foregoing, the plaintiffs respectfully

urge that the Court grant their Petition for a Writ of

Certiorari, to the end that this Court may review the

action of the Courts below in summarily dismissing

the plaintiffs’ Complaint in this case.

WHITEFORD S. BLAKENEY

Attorney for the Petitioners

APPENDIX

ST eT ee ee

la

United States Court of Appeals

FOR THE FOURTH CIRCUIT

NO. 75-2128

Mrs. Louella Cuthbertson, for herself and

for her minor children, Shirley 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 aiid for her minor

children, Robert Jackson, Charles T.

Jackson, Brenda Jackson, Robert Anderson

and Gerald Anderson; Mrs. Charles R. Helms,

for herself and for her minor children,

Stewart La Don Helms and Charles Derrick

Helms; Donald Ray Jones, for himself and

for his minor child, Larry Vance Jones;

Mrs. David Moore, for herself and for her

minor child Bruce Edward Moore; Mrs. Mary

Jo Helms, for herself and for her minor

child Earl Ray Helms, Jr.; 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

2a

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 L. Shivar, for

himself and for his minor child, Shelly

Shivar; Joseph Touch, for himself and for

his minor children, March Wayne Touch and

Trent Alan Touch; Mrs. Lois C. Reeder for

herself and for her minor child, Christie

Anderson Roberson,

Appellant,

v.

Charlotte-Mecklenburg Board of Education,

Appellee.

Appeal from the United States District Court for the

Western District of North Carolina, at Charlotte.

James B. McMillan, Distric. Judge.

Submitted March 2, 1976. Decided Mar. 18, 1976

Before BUTZNER, RUSSELL and FIELD,

Circuit Judges.

(Whiteford S. Blakeney, Attorney for Appellants;

William W. Sturges, Attorney for Appellee. )

3a

PER CURIAM:

Appellants challenge the constitutionality of the

method by which the Charlotte-Mecklenburg Board of

Education assigns students to schools, on the ground

that assignments are made on the basis of race in vio-

lation of the equal protection clause. The district court

dismissed the complaint for failure to state a claim

upon which relief could be granted.

The Supreme Court has held that where a school

system has violated the equal protection clause by

maintaining segregated schools in the past, the race

of students may be considered in formulating a

remedy for that violation. North Carolina State Board

of Education v. Swann, 402 U.S. 43, 46 (1971). The

Court has also accepted a district court’s finding that

the Charlotte-Mecklenburg Board of Education main-

tained segregated schools at one time. See Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1

(1971). Under these decisions the Board’s present use

of race in assigning some students is constitutional.

Accordingly, we dispense with oral argument and

affirm the judgment of the district court.

4a

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE WESTERN DISTRICT

OF NORTH CAROLINA

Charlotte Division

C-C-73-79

MRS. LOUELLA CUTHBERTSON,

ET AL.,

Plaintiffs,

-VS- ; ORDER OF

CHARLOTTE-MECKLENBURG DISMISSAL

BOARD OF EDUCATION,

Defendant. |

The motion of the defendant to dismiss the com-

plaint is allowed, and this action is dismissed.

This 30 day of July, 1975.

James B. McMillan

United States District Judge