Amicus Curiae Brief — Swann v. Charlotte-Mecklenburg Board of Education

Supreme Court brief1971

Ask Donna

What actually matters in this document.

Text

IN THE

Tsupreme Court of the United-State

Upreme uC rt, U.S.

OCTOBER TERM, 1970 FITEN

voi —ssSSEP 22 MME

E, ROBERT SEAVER, CLER

JAMES E. SWANN, et al., Petitio

Vv.

3 CHARLOTTE-MECKLENBURG BOARD OF

EDUCATION, et al.,

vem oa ee ee o

No. 349

CHARLOTTE-MECKLENBURG BOARD OF

EDUCATION, et al., Petitioners,

Vv.

JAMES E. SWANN, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

AMICUS CURIAE BRIEF FOR THE CLASSROOM TEACHERS

ASSOCIATION OF THE CHARLOTTE-MECKLENBURG

SCHOOL SYSTEM, INCORPORATED

Sam J. Ervin, Jr.

515 Lenoir Street

Morganton, North Carolina

Charles R. Jonas

301 W. Main Street

Lincolnton, N.C.

Ernest F. Hollings

141 East Bay Street

Charleston, South Carolina

Washington, 0. C. - THIEL PRESS - 202 - 363-0625

(i)

TABLE OF CONTENTS

Page

Interest of the Amicus... .. 22.22... cece cece eee eneee 1

eT Te eT eee eT rere ee ee 2

OS Pe nr rey rr ee ee 3

Questions Presented for Review..........--2++ee+eeeee 3

Constitutional and Statutory Provisions Involved ........... os

AENEID cg pv cnc sccccsnvcceeveneeesuse 4

ee ee eee eee ee eee 14

ee eee eee 17

I. The Charlotte-Mecklenburg Board of Education has

complied with the Equal Protection Clause of the

Fourteenth Amendment and the Supreme Court deci-

cisions interpreting it by establishing and operating _

a unitary public school system, which receives and

teaches students without discrimination on the basis

of their race or color. Any racial imbalance remain-

ing in any of the schools under the jurisdiction of

the Board represents de facto segregation, which inno-

cently results from the purely adventitious circum-

stance that the inhabitants of particular areas in and

adjacent to the City of Charlotte are predominantly

Se rrr re ee eee ee eee eee ee 17

Il. The Equal Protection Clause of the Fourteenth

Amendment does not require or empower a Federal

Court to order a public school board to assign

children to the schools it operates merely to balance

the student bodies in such schools racially, or to

bus children outside reasonable geographic attend-

ance districts or zones to effect such purpose. The

District Court ordered the Charlotte-Mecklenburg

School Board to do both of these things, and the

Circuit Court erred insofar as it affirmed the District

es ee ark oie ae CNR * 22

lil. The Fifth Section of the Fourteenth Amendment

empowers Congress to enforce the Equal Protection

Clause by appropriate legislation, the First Section

mae

(ii)

of Article III of the Constitution empowers Congress

to regulate the jurisdiction of United States District

Courts and United States Circuit Courts of Appeals,

and the Second Section of Article III of the Consti-

tution empowers Congress to regulate the appellate

jurisdiction of the Supreme Court. Congress exer-

cised all of these powers in an appropriate fashion

when it enacted Title IV of the Civil Rights Act of

1964, which prohibits the assignment of students to

public schools to balance the student bodies in such

schools racially, and to bus them from some schools

to other schools, or from some school districts to

other school districts to effect such purpose. The

Act’s prohibition on busing is absolute and deprives

federal courts of jurisdiction to compel school boards

to bus students to overcome racial imbalances in

schools, even if such imbalances result from discrimi-

natory school board action. The District Court order

violated this Act by commanding the Charlotte-

Mecklenburg School Board to do the things pro-

hibited by it, and the Circuit Court joined in such

violation insofar as it affirmed the District Court

IV. A school board has the power to devise and imple-

ment any non-discriminatory plan for the assignment

of children to the public schools it operates. The

District Court not only rejected a non-discriminatory

assignment plan submitted by the Charlotte-Mecklen-

burg School Board, but it usurped and exercised the

authority of the School Board in this respect by

devising a plan of its own which commands the

School Board to deny thousands of children admis-

sion to their neighborhood schools, and to bus them

to other schools to mix the races in the various

schools in numbers or proportions satisfactory to

the District Court. By so doing, the District Court

ordered the School Board to deny to the thousands

of children affected by its order admission to their

neighborhood schgols in violation of the Equal Pro-

tection Clause, arfd to bus them to other schools or

(iii)

Eg Pe SEEN

other school districts in violation of Section 407(a)

(2) of the Civil Rights Act of 1964. The Circuit

Carter v. West Felicana Parish School Board, 396 U.S. 290

Court concurred in these violations, and erred insofar

as it affirmed the order of the District Court ......--- 36

SMMC piensa tans tas ete esawew nce e eases se 40

Appendix TE CKO S SESE SOE REE ESS ENE SES POTN A. 1

TABLE OF AUTHORITIES

Cases:

- Alexander v. Holmes County Board of Education, 396 US.

SE cca sawn ee dns sede seeneseneaeeens ss 19, 23

Alexander v. Holmes County Board of Education, 396 U.S.

RMD. pa sececcnsrecneesuseeecnanes ees 19, 23

avery v. Midland County, 390 U.S. 474 (1968) ..-------+- 18

Barry v. Mercein, 5 How. (U.S.) 103, 119 (1847) ...----+-- 29

- Bell v. City School of Gary, Indiana (7 CA-1963), 324 F.2d

PS Sle A ee eddie 25

Board of School Commissioners of Mobile County v. Davis,

11 Led. (U.S.) (2d) 26 (1963)... --- +e rere reece 19

Bolling v. Sharpe, 347 U.S. 497 (1954) ....--- eee eee eeee 18

Bradley v. School Board of City of Richmond, 383 U.S.

CE Ae Saupe cdenesacsedeccsarverssss® 19

Brown v. Board of Education of Topeka, 347 U.S. 483

cathe wh snakes hage ehh snes ese ees® passim

Brown v. Board of Education of Topeka, 349 U.S. 294

ES ee ee ie, oan

Bush v. New Orleans Parish School Board, 364 U.S. 5

ea Gae'ss Castes te geeensesnaesessees 18

Carter v. West Felicana Parish School Board, 396 U.S. 226

yr D yaks seek ane nsse es ee ner eee e sean es 19

(iv)

Chisholm v. Georgia, 2 Dall. (U.S.) 419, 432 #4743)

Cooper v. Aaron, 358 U.S. 1, 20 (1958).

Cross v. Burke, 146 U.S. 82, 86 (1892) ..

Cumming v. Richmond County Board of Education, 175

Es ik cielo Ske -b 4.6 ees see as os

Daniels v. Railroad Co., 3 Wall. (U.S.) 250, 254 (1866) ......

Dowell v. Board of Education of the Oklahoma City Public

oo ee

Downs v. Board of Education of Kansas City, Kansas (10

CA-1964), 336 F.2d 483 (1954) .................

Durousseau v. United States, 6 Cranch 307 (1810) ......

Ex Parte Bollman, 4 Cranch (U.S.) 75, 93 (1807) .......

Ex Parte McCardle, 6 Wall. (U.S.) 318 (1868) ..........

Gong Lum v. Rice, 275 U.S. 78 (1927) ..............

Goss v. Board of Education of Knoxville, 373 U.S. 683

DUCCttlclc cle vied h ee hb ee bee so he hoes

Green v. County School Board of New Kent County, 391

ccs schaehen ena a kkse wich ane ue

Griffin v. County School Board of Prince Edward County,

og eer ee

Keyes v. School District No. 1, Denver, 396 U.S. 1215

SRE RE Ey me ee ere er eae

Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922) ...

Kuntz v. Moffitt, 115 U.S. 487, 497 (1885) ...........

Lauf v. E. G. Skinner & Co., 303 U.S. 323, 330 (1938) ...

Lockerty v. Phillips, 319 U.S. 182 (1943).............

Maxwell v. Bugbee, 250 U.S. 525 (1919) .............

Missouri Pacific Railway Co. v. Mackey, 127 U.S. 205-

i SP Oe rr eS Ter eee eT eT TT TT TTT Tee

Missouri v. Pacific Railway Co., 292 U.S. 13, 15 (1934) ...

Monroe v. Board of Commissioners of the City of Jackson,

ee ee SS kh back be eee kee Benes

(v)

Northcross v. Board of Education of the Memphis City

S Schools, 397 U.S. 232 (1970) ...-- +--+ eee eeeeeee 1

Plessy v. Ferguson, 163 U.S. 537 (1896). ....- eee cecees

y. Board of Education of the Gould School District,

391 US. 443 (1968)... -- ee eee eee eee ee eee tenes

Rogers v. Paul, 382 US. 198 (1965) ......+++++- 222000

+ Sheldon v. Still, 8 How. (U.S. 441 (1850) ......---+--++-

| Shuttlesworth v. Birmingham Board of Education, 358 U.S.

DR sc vcresvacsenecesversnccsvvontees

State Board of Tax Commissioners v. Jackson, 283 US.

TS) Rennes

> Stephan v. United States, 319 U.S. 423, 426 (1943) .....---

! Swann v. Charlotte-Mecklenburg Board of Education, 343

At) ee

Swann v. Charlotte-Mecklenburg Board of Education, 369

B BBE PD (19EG) 0 ccc rc cccccvcccscccccccccvces

| The Francis Wright, 105 U.S. 381, 386 (1882) ...-..------

Tumer v. Bank of North America, 4 Dall. (U.S.) 8 (1799) .

E 305 US. 225 (1969) .. 0... cece rere ere re rececees

ES Walters v. St. Louis, 347 U.S. 231 (1934) .......-.----00-

| Watson v. City of Memphis, 373 U.S. 526 (1963)...--.------

Wiscart v. D’Auchy, 3 Dall. (U.S.) 321 (1796).........----

Yakus v. United States, 321 U.S. 414 (1944)

LS GOR RS ARES. Sl RE RES EA a RL SE aca

IN THE

supreme Court of the United States

OCTOBER TERM, 1970

No. 281

JAMES E. SWANN, et al., Petitioners,

CHARLOTTE-MECKLENBURG BOARD OF

EDUCATION, et al.,

No. 349

CHARLOTTE-MECKLENBURG BOARD OF

EDUCATION, et al., Petitioners,

JAMES E. SWANN, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

\MICUS CURIAE BRIEF FOR THE CLASSROOM TEACHERS

ASSOCIATION OF THE CHARLOTTE-MECKLENBURG

SCHOOL SYSTEM, INCORPORATED

INTEREST OF THE AMICUS CURIAE

The Classroom Teachers Association of the Charlotte-

cklenburg School System, Incorporated, is a non-profit

mbership organization in corporate form, which includes

its membership a substantial part of the 3,553 classroom

chers in the Charlotte-Mecklenburg School System and

ich devotes itself to the advancement of public educa-

n. The specific objectives of the Organization and its

mbers are to promote the interests of classroom teachers

the Charlotte-Mecklenburg School System, and to secure

to the students attending the schools of the System opp.

tunities to achieve by quality education their highs

potentialities.

The Classroom Teachers Association of the Charloty.

Mecklenburg School System and its members believe thy

the execution of the order of the United States Distrig

Court for the Western District of North Carolina ay

the judgment of the United States Circuit Court for ty

Fourth Circuit affirming such order in part seriously impair

the educational opportunities offered by the Charlott

Mecklenburg School System to the students in its schook

and for this reason the organization files this amicy

curiae brief in support of the position of the Charlotte.

Mecklenburg Board of Education, which harmonizes with

this view.

The parties to the proceedings in Nos. 281 and 349 hay

consented in writing to the filing of this brief, and th

writings evidencing such consent have been filed with th

Clerk.

The members of the Supreme Court bar who submit thi

brief in behalf of the organization do so without compens:

tion in the hope that they may aid the Supreme Court t

reach a decision which will restore tranquility to muc

troubled areas of our land and enable the public school

operating in them to function economically and efficient!

as educational institutions.

OPINIONS BELOW

The opinion of the Court below consists of the opinio

and judgment of the United States Court of Appeals fik

May 26, 1970, which are not yet reported and whic

appear in the Appendix (Volume 3, pages 1262a to 13042

In its opinion and judgment, the Court of Appea

reviewed and approved in part and remanded in part f

further consideration the rulings and findings made by t

United States District Court in the following orders and

documents:

1. Order dated February 5, 1970 (819a-839a), as

amended, corrected, and clarified on March 3, 1970 (921a).

2. Supplementary Findings of Fact dated March 21,

1970 (1198a-1220a).

3, Supplemental Memorandum dated March 21, 1970

# (1221a-1238a).

JURISDICTION

| The Supreme Court has jurisdiction to review this case

5 wy wit of certiorari under 28 U.S.C. 1254(1), and has

> accepted it for such purpose by granting writs to the peti-

= tioners in No. 281 and the petitioners in No. 349.

QUESTIONS PRESENTED FOR REVIEW

This case presents the following questions for review:

= 1. Does a public school board comply with the Equal

> and assigns all children, black and white, to neighborhood

> schools in the district or zone in which they reside without

} 2. Does the Equal Protection Clause of the Fourteenth

> Amendment empower a federal court to order a public

» balance the student bodies in such schools racially or to

- bus children outside of non-discriminatory attendance dis-

} tricts or zones to effect such purpose?

| 3. Does Title IV of the Civil Rights Act of 1964, which

prohibits the assignment of students to public schools to

balance the student bodies in such schools racially and to

bus them from some schools to other schools or from some

school districts to other school districts to effect such

purpose, constitute appropriate legislation to enforce the

Equal Protection Clause within the purview of the Fifth

Section of the Fourteenth Amendment?

4. Does the order entered by the District Court ang

affirmed in part by the Circuit Court usurp and exercig

the authority of the Charlotte-Mecklenburg Board of Edy.

cation to devise and implement a non-discriminatory assign-

ment plan conforming to the Equal Protection Clause, ang

require the Charlotte-Mecklenburg Board of Education to

violate the Equal Protection Clause by treating in a differ.

ent manner students similarly situated and by denying

students admission to their neighborhood schools becausg

of their race?

The amicus curiae insists that the first, third, and fourth

questions must be answered in the affirmative and that the

second question must be answered in the negative.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The case involves the first and second sections of the

Fourteenth Amendment; the first and second sections of

Article III of the Constitution; and Title IV of the Civil

Rights Act of 1964. These constitutional and statutory

provisions are printed in the Appendix.

STATEMENT OF THE CASE

A. The Charlotte-Mecklenburg Public School System

The writ in No. 281 and the writ in No. 349 present to

the Supreme Court for review the judgment entered by the

United States Court of Appeals for the Fourth Circuit on

May 26, 1970, in the civil action entitled James E. Swann

and others, Plaintiffs, v. Charlotte-Mecklenburg Board of

Education and others, Defendants. For ease of narration

and understanding, Jemes E. Swann and his associates in

this litigation are hereafter called the plaintiffs, and the

Charlotte-Mecklenburg Board of Education is hereafter

designated as the School Board.

The School Board operates the Charlotte-Mecklenbur

Public School System in Charlotte and Mecklenburg County,

North Carolina, political subdivisions of North Carolina

Charlotte, which is the county seat of Mecklenburg County,

is inhabited by 239,056 persons who are concentrated

within the 64 square miles embraced by its city limits, an

area larger than the District of Columbia. Mecklenburg

County embraces 550 square miles, has an east-west span

of 26 miles, a north-south span of 36 miles, and has a

population of 352,006, exclusive of those residing within

the area embraced by Charlotte.

In the discharge of its state-assigned duties, the School

Board operates 10 high schools, 21 junior high schools, and

72 elementary schools to house and instruct the 84,500

school children residing in Charlotte and Mecklenburg

County. Of these school children, 24,000, or 29 percent,

are black, and 60,500, or 71 percent, are white. Approxi-

mately 95 percent of all the black children who reside

within the limits of the City of Charlotte live in predomi-

nately black residential sections in northwest Charlotte, and

> a substantial portion of the other black children in Meck-

} areas adjacent to it. (293a-298 a).

Prior to Brown v. Board of Education of Topeka, 347 U.S.

483 (1954), the School Board operated the public schools of

Charlotte and Mecklenburg County as racially segregated

| schools in conformity with the interpretation then placed

> upon the Equal Protection Clause of the Fourteenth Amend-

» ment. Subsequent to the Brown Case and prior to 1965,

+ mining admission to its public schools on a non-racial basis.

It did this, and thus converted its formerly dual system

into a unitary system by establishing non-discriminatory

attendance districts or zones, and assigning the school

- children subject to its jurisdiction to their neighborhood

schools irrespective of race.

Inasmuch as some of the attendance districts or zones in

tural Mecklenburg County and some of its suburban resi-

dential districts or zones in or adjacent to Charlotte are

extremely large, the School Board voluntarily established

a transportation system for the sole purpose of carrying

children residing in these geographically large districts

zones to the nearest available schools. As a consequence,

it now uses 280 buses to bus some 23,000 school childrey

to rural and suburban schools. (8644)

In 1965 the plaintiffs brought the instant action agains

the School Board in the United States District Court fy,

the Western District of North Carolina seeking to obtaiy

a compulsory desegregation decree. After hearing the ey.

dence in the case, the District Court found that the Schoo

Board had complied with the requirement of the Equd

Protection Clause and denied the decree sought by them,

Swann v. Charlotte-Mecklenburg Board of Education, 243

F.Supp. 667 (1965). This ruling was affirmed by the

Circuit Court. Swann v. Charlotte-Mecklenburg Board of

Education, 369 F.2d 29 (1966).

B. The Plan Submitted by the Charlotte-

Mecklenburg Board of Education

Subsequent to the decision in Green v. County School

Board of New Kent County, 391 U.S. 430 (1968), the

plaintiffs filed a motion in the cause seeking further deseg-

regation. (2a)

Although it found as a fact that the “location of schools

in Charlotte has followed the local pattern of residential

development, including its de facto patterns of segregation”

(305a), and that the School Board members “‘have achieved

a degree and volume of desegregation of schools apparently

unsurpassed in these parts and have exceeded the per

formance of any school boards whose actions have been

reviewed in the appellate court decisions” (31 1a-312a), the

District Court resumed hearings in the case on the ground

that the Green Case had changed “the rules of the game.”

(312a)

It is to be noted that subsequently the District Court on

its own motion reversed its previous findings that any racial

imbalance in the Charlotte-Mecklenburg public schools wa

the result of de facto segregation by asserting that “there i

so much State action imbedded in and shaping these events

that the resulting segregation is not innocent or ‘de facto’

and the resulting schools are not ‘unitary’ or ‘desegregated’.”

(662a) The amicus curiae submits with all due deference

that there is no testimony in the record to sustain this par-

ticular finding.

t to the orders entered by the District Court on

April 23, 1969 (285a), June 20, 1969 (448 a), August 15,

1969 (579a), and December 1, 1969 (698a), the School

Board filed desegregation plans (330a, 480a, 670a) which

were rejected by the District Court.

Meanwhile on December 2, 1969, the Court appointed

+ Dr. John Finger, a resident of Rhode Island, as a special

= consultant to devise a desegregation plan for the guidance

> of the Court. (819a) Dr. Finger had originally entered the

» case as a partisan witness for the plaintiffs, and for this

a reason a good case can be made for the proposition that he

> lacked the impartiality which is desirable in one selected for

> the task of assisting a judge in keeping the scales of justice

| evenly balanced between adverse litigants. (1279a)

~~ While the District Court orders and the School Board

ES devotion to the neighborhood school concept, and its reluc-

} tance as an elected public body to engage in excessive and

| expensive busing of school children, the subsequent School

’ Board plan of February 5, 1970, and the subsequent District

> Court order of February 5, 1970, relating to it really illumi-

nate the issues which now confront the Supreme Court.

(726a-748a, 819a-839a)

By this plan, the School Board proposed that attendance

districts or zones should be drastically gerrymandered in

such a manner as to include as many blacks as possible in

each district or zone, and that all school children subject to

its jurisdiction should be required to attend the school

appropriate to their educational standings in the district or

zone of their residence. The plan would have accomplished

aracial mixture of school children in all of the 103 schools

in the system, except three elementary white schoo

located in neighborhoods inhabited exclusively by member

of the white race. (726a-748a)

The School Board plan contemplated that from 17 pe, :

cent to 36 percent of the student body in nine of the tey

senior high schools in the system would be black; that no

more than 38 percent of the student body in 20 of the 2)

junior high schools in the system would be black; and tha

not more than 40 percent of the student body in 60 of the

72 elementary schools in the system would be black.

Under the School Board plan, the remaining high school,

Independence High, would be 2 percent black and 98 per.

cent white; the remaining junior high school, Piedmont

Junior High, would be 90 percent black and 10 percent

white; and all of the 12 remaining elementary schook,

except the three white elementary schools, would be 83

percent to 1 percent black. (726a-748a)

The School Board judged it to be impossible to desegre-

gate the three white elementary schools, and to further

desegregate the nine predominately black elementary school

by geographic districting or zoning because of the de facto

segregation prevailing in the residential areas in which the

children assigned to these 12 elementary schools lived.

(730a-732a) The District Court made a specific finding in

its Supplemental Findings of Fact of March 21, 1970,

which establishes the validity of the School Board’s concl-

sion concerning Independence High, Piedmont Junior High,

and the 9 predominately black elementary schools, all of

which are located in northwest Charlotte or its environs.

The District Court expressly found that “both Dr. Finger

and the School Board staff appear to have agreed, and the

Court finds as a fact that for the present at least there is

no way to desegregate the all-black schools in northwest

Charlotte without providing (or continuing to provide) bus

or other transportation for thousands of children. All plans

and all variation of plans considered for this purpose lead

in one fashion or another to that conclusion.” (1208a)

alt ic ANAS RR NE EE

The amicus curiae submits that it beggars imagination to

conjecture how any plan could have obtained a greater

degree of racial integration by gerrymandering attendance

districts or zones in a political subdivision where white

children outnumber black children 71 to 29, and where

most of the black children are concentrated residentially in

an area inhabited exclusively by members of their race.

The School Board plan did not stop with proposing such

a hign degree of racial integration among the student bodies

in the schools subject to its jurisdiction. It made these

three additional proposals:

1. That the faculty of each school should be assigned in

such a manner that the ratio of black teachers to white

teachers in each school would be approximately 1 to 3 in

accordance with the ratios in the entire faculty of the

system (737a);

2. That the School Board should furnish 4,935 addi-

tional students in-district or in-zone transportation to the

schools in the proposed gerrymandered attendance districts

or zones in accordance with the North Carolina law which

forbids such: transportation within one and one-half mile

distances (736a); and

3. That any black child in any school having more than

30 percent of his race in its student body should be allowed

to transfer to any school having less than 30 percent of his

race; whereas a white child should be permitted to transfer

to another school only if the school he is attending has

more than 70 percent of his race and the school to which

he seeks transfer is less than 70 percent white. (734a-735 a)

At the same time, Dr. Finger submitted to the District

Court his plan of desegregation which contemplated that

the School Board should be required by the Court to deny

approximately 23,000 additional children admission to the

neighborhood schools in the districts or zones of their resi-

dence, and to transport them by bus or otherwise substan-

tial distances in order to produce a greater racial mixture

in student bodies. (819a, 825a-827a, 829a-839a, 1198,

1208a-1214a, 1231a-1234a, 1268a-1269a)

C. The Order of the District Court

On February 5, 1970, the District Court entered »

order approving the School Board plan, subject to certain

drastic conditions and revisions recommended by Dr. Finger,

(819a-839a) By adopting these conditions and revisions

the District Court commanded the School Board to d

these things:

1. To deny hundreds of black high school students

admission to a nearby high school which would have had

a racial composition of 36 percent black and 64 percent

white under the School Board plan, and to bus them from

their residences in northwest Charlotte through center-city

traffic a distance of some 12 or 13 miles to Independence

High School, which is located in a white suburban residen-

tial area;

2. To deny several thousands of black junior high school

students admission to their neighborhood junior high schools

in the inner city, and to bus them substantial distances to

nine predominately white suburban schools located in other

attendance districts or zones; and

3. To deny thousands of black and thousands of white

elementary school children admission to 31 elementary

schools located within their respective attendance districts

or zones, and to bus them distances approximating 15 miles

to elementary schools situated in other attendance districts

or zones.

The sole purpose of the District Court in ordering the

School Board to dislocate and bus the hundreds of black

high school students to Independence High School was to

make Independence High less white, and the sole purpos

of the District Court in ordering the School Board to dis

locate and bus several thousands of junior high school

students was to reduce the percentage of blacks in Piedmont

Junior High from 90 percent to 32 percent. (825a-826a)

The sole purpose of the order of the Court commanding

the School Board to dislocate and bus thousands of ele-

mentary school children was to alter the racial composition

of the student body in 9 predominately black inner-city

schools and in 24 predominately white suburban schools.

To accomplish this purpose, the District Court commanded

the School Board to dislocate and bus thousands of black

first, second, third, and fourth grade students from 9 pre-

dominately black inner-city schools to 24 predominately

white suburban schools, and to dislocate and bus thousands

of white fifth and sixth grade students from the 24 pre-

dominately white suburban schools to the 9 predominately

black inner-city schools. (826a)

The order of the District Court did not stop with these

things. It further ordered the School Board to establish

and implement a continuing program of assigning students

throughout the school year “for the conscious purpose of

maintaining each school * * * in a condition of desegrega-

tion.” (824a)

The record clearly discloses the reasoning which prompted

the District Court to seek to achieve the purposes of its

order.

Prior to its order of February 5, 1970, namely, on April

24, 1969, the District Court manifested its disapproval of

the School Board’s adherence to the neighborhood school

concept by this statement: “Today people drive as much as

40 or 50 miles to work; 5 to 10 miles to church; several

hours to football games; all over the country for civic

affairs of various types. The automobile has exploded

the old-fashioned neighborhood * * * If this Court were

writing the philosophy of education, he would suggest that

educators should concentrate on planning schools as educa-

tional institutions rather than as neighborhood proprietor-

ships.” (306a)

When it entered its order of February 5, 1970, the

District Court justified adding the conditions and revisions

recommended by Dr. Finger on the ground that the School

Board plan “relies almost entirely on geographical atteng.

ance zones,” while “the Finger plan goes further and pro.

duces desegregation of all the schools in the system”

(819a)

What has been said makes it manifest that the Distric

Court entertained the opinion that the Equal Protectio,

Clause of the Fourteenth Amendment makes it obligatoy

for a school board to mix student bodies racially in every

school subject to its jurisdiction if children are available for

mixing, and that a school board must deny a sufficient

number of school children admission to their neighborhood

schools and bus them to schools elsewhere either to over.

come racial imbalances in their neighborhood schools or in

the schools elsewhere, regardless of whether such racial

imbalances are produced by arbitrary or invidious discrini-

nation on the part of the school board or simply result

from adventitious de facto residential segregation or other

cause.

The amicus curiae has not undertaken to state with

exactitude the number of additional school children which

the District Court ordered the School Board to deny admis-

sion to their neighborhood schools and to bus from one

school to another or from one school district to another, or

the additional cost which the carrying out of the District

Court’s order in this respect will impose upon the School

Board.

This action of the amicus curiae has been deliberate

because these matters are in serious dispute between the

School Board and the District Court.

When the District Court entered its order of February 5,

1970, and thereby adopted the Finger plan in virtually it

entirety, the School Board estimated that the order required

it to bus 23,384 additional students an average round trip

of 30 miles each school day, and that to do this the Schoo

Board would have to acquire 526 additional buses ani

additional parking spaces at an original capital outlay o

$3,284,448.94; and thereafter expend each year an addi

tional $1,065,391.98 in employing additional personnel and

defraying other operating costs. (853a, 866a)

On March 3, 1970, the District Court modified its order

of February 5, 1970. (921a) The School Board then calcu-

lated that the order as modified will require it to transport

19,285 additional students and to purchase for such purpose

422 additional buses and additional parking spaces at an

original capital outlay of $2,369,100.00; and thereafter to

expend each year for additional personnel and operating

expenses of such buses $284,800.00. (1269a-1270a)

The Court estimated that the execution of its order as

modified would require the School Board to bus 13,300

additional students and to purchase for such use 138 addi-

tional buses at an original capital outlay of $745,200.00;

and to expend thereafter annually $266,000.00 for operat-

ing costs of such additional buses, exclusive of what it will

have to expend to compensate any additional personnel

necessary for their operation. (1259a-1261a, 1269a)

The Court arrived at its figures by suggesting that the

School Board could reduce its estimate of the expenses

incident to busing the thousands of children affected by its

order by drastically staggering school openings and closings.

The School Board replied to this suggestion by asserting

that the suggested staggering of school openings and closings

would require some children to leave home as early as 6:30

a.m. and prevent some of them from returning home before

5:00 p.m. (864a-865a)

D. The Judgment of the United States Court of

Appeals for the Fourth Circuit

At the instance of the School Board, the United States

Court of Appeals for the Fourth Circuit reviewed the orders

of the District Court. On May 26, 1970, the Circuit Court

rendered its judgment affirming the orders of the District

Court insofar as they related to the assignment and busing

of senior high school and junior high school students, and

remanding to the District Court for further consideration

the provisions of the order of the District Court relating to

the assignment and busing of elementary school students,

(1262a-1304a)

In making this remand, the Circuit Court adjudged tha

“not every school in a unitary system need be integrated”

and adopted a “test of reasonableness—instead of one that

calls for absolutes.” (1267a)

The writ of certiorari granted to the School Board pre.

sents for review the validity of the Circuit Court ruling

approving the orders of the District Court relating to the

assignment and busing of senior high school and junior high

school students and the writ of certiorari granted to the

original plaintiffs presents for review the question of the

validity of the ruling of the Circuit Court vacating the

order of the District Court relating to the assignment and

busing of elementary school students.

Subsequent to these events, namely, on August 3, 1970,

the District Court reinstated and reaffirmed its order of

February 5, 1970, in respect to the assignment and busing

of the elementary school students. (1320a) While the

validity of this particular order may not be before the

Supreme Court, the question which it raises is involved in

the matter to be reviewed under the writ granted to James

E. Swann and those associated with him in this litigation.

The amicus curiae understands that the School Board has

filed an yet unprinted motion with the Supreme Court for

a stay of the order entered by the District Court on August

3, 1970, after the hearing of the case in the Circuit Court.

SUMMARY OF ARGUMENT

In the final analysis, the questions presented for review

in this case do not arise out of any real controversy in

respect to the testimony. They arise out of a fundamental

disagreement between the School Board, on the one hand,

and the District Court and some of the Circuit Court

Judges, on the other, with respect to how the Equal Protec-

tion Clause applies to the assignment of students to public

schools.

The view of the School Board may be epitomized in this

fashion:

The Equal Protection Clause applies only to State action

which is arbitrary or invidious, and, hence, it leaves a public

school board, acting as a State agency, entirely free to

assign students to its schools by any method satisfactory to

itself if such method is not arbitrary or invidious. A public

school board acts arbitrarily or invidiously if it assigns

students to its schools for racial reasons, but a public

school board does not act arbitrarily or invidiously if it

assigns students to its schools for non-racial reasons, such

as the promotion of the efficiency of school administration,

the economy of school administration, or the convenience

of the students or their parents. This being true, the Equal

Protection Clause does not impair in any way the power of

a public school board to create fairly drawn geographic

attendance districts or zones, and to assign all students

without regard to their race to neighborhood schools in

the respective districts or zones in which they reside even

though such action may result in some racial imbalances

in the schools serving areas predominately inhabited by

members of one race.

The view of the District Court and some of the Circuit

Court Judges may be summarized in this way:

It is highly desirable from an educational viewpoint to

mix students in public schools racially in the highest pos-

sible degree. Hence, the Equal Protection Clause imposes

upon a public school board the positive duty to balance

racially all the schools it operates if black and white chil-

dren are available for this purpose; and to deny school

children admission to their neighborhood schools and bus

them to other schools in other areas, no matter how distant,

in sufficient numbers to effect such racial balancing.

The School Board refutes this proposition by saying that

the Equal Protection Clause does not require action which

may be desirable; it merely prohibits action which is arhj-

trary or invidious.

When it is stripped of irrelevancies and surmises, the

record discloses a surprisingly simple state of facts which

are relatively free of conflict insofar as they relate to the

crucial issues.

After the first Brown Case, 347 U.S. 483 (1954), the

School Board converted its previously dual system of

schools into a unitary system of schools within which no

child was excluded because of the child’s race. The School

Board did this by a geographic assignment plan applicable

in like manner to all children without regard to their race.

Its action in this regard was adjudged to be in compliance

with the Equal Protection Clause by both the District Court

and the Court of Appeals.

Subsequent to the Green Case, 391 U.S. 430 (1968), the

District Court ordered the School Board to submit another

plan for the desegregation of its schools. Pursuant to this

order, the School Board proposed a plan which was reason-

ably designed to secure the maximum amount of racial

mixture obtainable in the student bodies in its schools

without abandonment of the neighborhood school concept

by restructuring its geographic attendance districts or zones,

and assigning all of the children subject to its jurisdiction

without regard to their race to their respective neighbor

hood schools in the districts or zones in which they reside.

The Court rejected the School Board plan simply because

it did not racially balance one senior high school out of the

system’s ten senior high schools, one junior high school out

of the system’s 21 junior high schools, and nine predomi

nately black and three predominately white elementary

schools out of the system’s 72 elementary schools.

Instead of approving the reasonable plan submitted by

the School Board, the District Court, in essence, adopted

the Finger Plan which requires the School Board to deny

thousands of children admission to their neighborhood

schools, and to bus them to other schools in other areas

merely to eliminate the racial imbalances in these particular

schools. The School Board insists that the action of the

District Court was not only inconsistent with the Equal

Protection Clause, but violates Title IV of the Civil Rights

Act of 1964, and that the Circuit Court erred insofar as it

approved the action of the District Court.

ARGUMENT

The Charlotte-Mecklenburg Board of Education

has complied with the Equal Protection Clause

of the Fourteenth Amendment and the Supreme

Court decisions interpreting it by establishing and

operating a unitary public school system, which

receives and teaches students without discrimi-

nation on the basis of their race or color. Any

racial imbalance remaining in any of the schools

under the jurisdiction of the Board represents de

facto segregation, which results from the purely

adventitious circumstance that the inhabitants of

particular areas in and adjacent to the city of

Charlotte are predominantly of one race.

The Equal Protection Clause of the Fourteenth Amend-

ment, which was certified to be a part of the Constitution

on July 28, 1868, forbids a state to “deny to any person

within its jurisdiction the equal protection of the laws.”

By these words, the Equal Protection Clause requires a

state to treat in like manner all persons similarly situated.

State Board of Tax Commissioners of Indiana v. Jackson,

283 U.S. 527 (1931); Maxwell v. Bugbee, 250 U.S. 525

(1919). The clause does not require identity of treatment.

Walters v. St. Louis, 347 U.S. 231 (1934). It permits a state

to make distinctions between persons subject to its jurisdic-

tion if the distinctions are based on some reasonable classi-

fication, and all persons embraced within the classification

are treated alike. It merely outlaws arbitrary or invidioy

discrimination. Avery v. Midland County, 390 USS. 414

(1968); Missouri Pacific Railway Co. v. Mackey, 127 Us.

205 (1888).

From July 28, 1868, until May 17, 1954, the Equal Pro.

tection Clause of the Fourteenth Amendment was inter.

preted to sanction the “separate but equal doctrine,” which

permitted a state to segregate school children in its public

schools on the basis of race when it furnished equal facili-

ties for the education of the children of each race. Gong

Lum vy. Rice, 275 U.S. 78 (1927); Cumming v. Richmond

County Board of Education, 175 U.S. 528 (1899); Plessy

v. Ferguson, 163 U.S. 537 (1896).

On May 17, 1954, the Supreme Court handed down its

historic decision in Brown v. Board of Education of Topeka,

347 U.S. 483 (1954), adjudging “that in the field of public

education the doctrine of ‘separate but equal’ has no place”

and holding that a state violates the Equal Protection Clause

if it denies any child admission to any of its public schools

on account of the child’s race.

On the same day the Supreme Court handed down

Bolling v. Sharpe, 347 U.S. 497 (1954), ruling that the Due

Process Clause of the Fifth Amendment imposes the same

inhibition on the public schools of the District of Columbia

that the Equal Protection Clause does on the public schools

of a state, and one year later the Supreme Court announced

its implementing decision in second Brown, which is

reported as Brown v. Board of Education of Topeka, 349

U.S. 294 (1955).

Since these decisions the Supreme Court has applied the

Equal Protection Clause to varying factual situations arising

in various Southern public school districts in the following

cases: Cooper v. Aaron, 358 U.S. 1, 20 (1958); Shuttles-

worth v. Birmingham Board of Education, 358 U.S. 101

(1958); Bush v. Orleans Parish School Board, 364 U.S. 500

(1960); Watson v. City of Memphis, 373 U.S. 526 (1963);

5a Cp Rit See ed ae ee Oe TA gaan

neni d Sax Bh ER hl om TA

EEE cS OR

Goss v. Board of Education of Knoxville, 373 U.S. 683

(1963); Griffin v. County School Board of Prince Edward

County, 377 U.S. 218 (1964); Bradley v. School Board of

City of Richmond, 382 U.S. 103 (1965); Rogers v. Paul,

382 U.S. 198 (1965); Green v. County School Board of

New Kent County, 391 U.S. 430 (1968); Raney v. Board

of Education of the Gould School District, 391 U.S. 443

(1968); Monroe y. Board of Commissioners of the City of

Jackson, 391 U.S.'450 (1968); United States ¥. Montgomery

County Board of Education, 395 U.S. 225 (1969); Alexan-

der v. Holmes County Board of Education, 396 U.S. 19

(1969); Dowell v. Board of Education of the Oklahoma

City Public Schools, 396 U.S. 269 (1969); Carter v. West

Felicana Parish School Board, 396 U.S. 226 (1969); Carter

y. West Felicana Parish School Board, 396 U.S. 290 (1970);

and Northcross v. Board of Education of the Memphis City

Schools, 397 U.S. 232 (1970).

Besides, individual Supreme Court Justices, acting as

Circuit Justices, have expressed opinions on the subject

in these cases: Board of School Commissioners of Mobile

County v. Davis, 11 L. ed. 2d 26 (1963); Keyes v. School

District No. 1, Denver, 396 U.S. 1215 (1970); and Alexan-

der v. Holmes County Board of Education, 396 U.S. 1218

(1969).

The record in the instant case embraces hundreds of

pages of evidence, orders, and judgments, and for that

reason, the case lends itself to much writing. But the issues

arising in the case are simple, and it would complicate that

simplicity to analyze the cited decisions in detail. In their

ultimate analysis, they interpret the Equal Protection Clause

Eas follows:

1. The Equal Protection Clause makes it unconstitu-

tional for a state to deny any child admission to any public

> school it operates on account of the child’s race.

2. In consequence, the Equal Protection Clause imposes

upon a state, acting through its appropriate agencies, the

responsibility to establish a system of determining admis-

sion to its public schools on a non-racial basis.

3. A state, which operated a racially segregated system

of public schools on May 17, 1954, fulfills this responsi.

bility by converting its dual public school system into ,

unitary public school system.

4. A unitary public school system is one “within which

no person is to be effectively excluded from any school

because of race or color.”

When the Equal Protection Clause as thus interpreted js

applied to the facts in this case, it is obvious that the

School Board has fully converted its Pre-Brown dual school

system into a unitary school system within which no child

is actually excluded from any school because of race or

color. The School Board has done this by creating non-

discriminatory attendance districts or zones and assigning

all children, black and white, to neighborhood schools in

the district or zone in which they reside without regard to

their race.

These conclusions are explicit in the rulings made by the

District Court and the Circuit Court in 1965 and 1966.

Swann v. Charlotte-Mecklenburg Board of Education, 243

F.Supp. 667 (1965); Swann v. Charlotte-Mecklenburg Board

of Education, 369 F.2d 29 (1966). They are implicit in the

findings made by the District Court in its order of April

23, 1969, that the School Board had “achieved a degree of

desegregation of schools apparently unsurpassed in these

parts” and had “exceeded the performance of any school

board whose actions have been reviewed in the appellate

court decisions,” (31lla-312a) and that the Schools of

Charlotte, in essence, conform to de facto patterns of resi-

dential segregation. (305Sa)

To be sure, the District Court, acting sua sponte, under-

took to recall these findings in its Memorandum Opinion

of November 7, 1969, and to assert that racial imbalances

in the Schools of Charlotte are “not innocent or de facto.”

(662a)

god Ap gee ae rT

lh Ye sh ooh ci HN ERE Si OR al

The amicus curiae submits in all earnestness that there

is no evidence in the record to sustain the District Court’s

assertion in this respect. Be this as it may, the Supreme

Court is empowered in cases of an equitable nature and

cases involving constitutional questions to review the evi-

dence and make its own findings. If it follows this course

in this case, the Supreme Court will be impelled to the

conclusion that there is not a vestige of state-imposed seg-

regation in the Charlotte-Mecklenburg School System.

Besides, the District Court’s assertion that racial imbal-

ances in the schools of Charlotte are “not innocent or de

facto” is totally repudiated by its subsequent finding that

there is no way to desegregate the black schools in north-

west Charlotte without transporting thousands of children

by bus or other means. (1208a)

When all is said, the School Board went far beyond the

call of any duty imposed upon it by the Equal Protection

Clause when it proposed in its plan of February 2, 1970,

to gerrymander attendance districts or zones in order to

achieve the highest degree of desegregation obtainable

without virtual abandonment of the neighborhood school

concept. The amicus curiae expresses no opinion as to

whether this proposal is repugnant to the constitutional or

legal rights of any child.

The Equal Protection Clause of the Fourteenth

Amendment does not require or empower a

Federal Court to order a public school board to

assign children to the schools it operates merely

to balance the student bodies in such schools

racially, or to bus children outside reasonable

geographic attendance districts or zones to effect

such purpose. The District Court ordered the

Charlotte-Mecklenburg School Board to do both

of these things, and the Circuit Court erred

insofar as it affirmed the District Court order.

_ The facts make it clear that the order entered by the

District Court on February 5, 1970, requires racial balanc-

ing in the Charlotte-Mecklenburg School System and the

busing of thousands of children outside their geographic

attendance districts or zones to effect such balancing.

Indeed, the District Court virtually admits this to be true

by setting forth in its Supplemental Findings of Fact of

March 21, 1970, a specific finding that there is no other

way to desegregate the black schools in northwest Charlotte.

(1208 a)

Upon the entire record, the conclusion is inescapable

that the District Court fell into error because it honestly

believed that the Equal Protection Clause and certain deci-

sions interpreting it impose upon a public school board an

absolute duty to do these things:

1. To balance racially to the highest degree possible all

the schools subject to its control if black and white children

are available for that purpose anywhere within the territory

subject to its jurisdiction, no matter how vast such territory

may be; and

2. To effect such racial balancing by denying both black

and white children admission to their neighborhood schools

and busing them to other schools in other areas in suffi-

cient numbers to overcome racial imbalances either in their

neighborhood schools or in the other schools, regardless of

NEEL OORLOTE DLA IEE AILS ALLEL DN

whether the racial imbalances result from de facto residen-

tial segregation or other cause, and regardless of these other

factors: the distances the children are to be bused, the time

required for their busing, the impact of their exclusion

from their neighborhood schools and their busing upon

their minds and hearts, the effect of these things upon the

management of the homes which must nurture them, the

traffic hazards involved, and the additional expense foisted

upon heavily burdened taxpayers.

There is no other rational explanation for the court order

which disrupts the lives of thousands of school children and

the management of the thousands of homes from which

they come, and diverts tremendous sums of tax-raised

moneys from the enlightenment of their minds to the

busing of their bodies.

The Equal Protection Clause does not require any court

to enter any such order. It does not empower any court

to enter any such order. Indeed, it forbids any court to

do so.

As interpreted in the first Brown Case, 347 U.S. 483

(1954), and all subsequent Supreme Court decisions rele-

vant to the subject, the Equal Protection Clause forbids a

public school board, which acts as a state agency, to deny

any child admission to any school it operates on account of

the child’s race. A public school board obeys the Clause by

maintaining a unitary school system, i.e., a school system

“within which no person is to be effectively excluded from

any school because of race or color.” Northcross v. Board

of Education of the Memphis City Schools, 397 U.S. 232

(1970); Alexander v. Holmes County Board of Education,

396 U.S. 19 (1969). See also the opinion of Mr. Justice

Black, acting as Circuit Justice, in Alexander v. Holmes

County Board of Education, 396 U.S. 1218 (1969).

The power to assign children to state supported schools

belongs to the public school board which operates them.

The Equal Protection Clause does not undertake to transfer

this power to the Federal Courts. It merely subjects the

exercise of the power by the public school board to this

limitation: The board must not exclude any child from any

school it operates because of the child’s race.

If it faithfully observes this limitation upon its power, ,

public school board has the right to assign children to the

schools it operates in any non-discriminatory fashion satis.

factory to itself.

The School Board exercised this right when it created non-

discriminatory attendance districts or zones and assigned all

children, whether black or white, to neighborhood school

in the districts or zones of their residence without regard to

race.

Since the children are similarly situated and the School

Board treats them exactly alike, its action is in complete

harmony with the Equal Protection Clause. It accords,

moreover, with the implementing decision in the second

Brown Case, 349 U.S. 294 (1955), which expressly recog-

nizes that a school board may employ non-discriminatory

geographic zoning of school districts “to achieve a system

of determining admission to the public schools on a non-

racial basis.”

As is true in respect to virtually every city of any size in

our land, the different races are concentrated to a substan-

tial degree in separate residential areas in Charlotte, and

for this reason the School Board’s non-discriminatory geo-

graphic zoning and assignment program necessarily results

in some racial imbalances in some schools.

Notwithstanding this, the order of the District Court

commanding the School Board to exclude thousands of

children from their neighborhood schools and to bus them

long distances to other schools to overcome these racial

imbalances is without support in the Equal Protection

Clause.

This is true for an exceedingly plain reason. The Equa

Protection Clause does not prohibit any discrimination

except that which is arbitrary or invidious.

It inevitably follows that where school attendance areas

are not arbitrarily or invidiously fixed so as to include or

exclude children of a particular race, the Equal Protection

Clause does not prohibit a state or local school board from

requiring that the children living in each attencance area

attend the school in that area, even though the effect of

such a requirement, in a locality where the different races

are concentrated in separate residential areas, is racial imbal-

ance or de facto segregation in the schools.

The conclusion that the Equal Protection Clause does

not impose upon a public school board any mandate to

remove any racial imbalance in its schools occasioned by

de facto residential segregation or non-discriminatory geo-

graphic assignments is expressly supported in Bell v. School

City of Gary, Ind. (7 CA-1963), 324 F.2d 209, and Downs

y. Board of Education of Kansas City, Kansas (10 CA-1964),

336 F.2d 998. Moreover, it is compelled by first Brown,

347 U.S. 483 (1954), and all the subsequent Supreme Court

cases applying its holding, as well as by the language of the

Equal Protection Clause itself.'

Despite the fact that the Charlotte-Mecklenburg School

System is in the South, racial imbalances produced in its

schools by de facto residential segregation are just as inno-

cent as racial imbalances produced in the public schools of

the North by the same cause, and are equally exempt from

federal interference, whether legislative, executive, or judi-

cial, under the Equal Protection Clause, which, as already

pointed out, condemns no discrimination except that which

is arbitrary or invidious.

While such action may not be customary in briefs, the amicus

curiae wishes to note that this conclusion is supported by the text

writer in 15 Am. Jur. 2d, Civil Rights, Section 39, Page 433, and

by one of the most recent commentaries on the Constitution of

the United States, ie., Bernard Schwartz’s “Rights of the Person,”

Volume II, Section 501, Page 593-596.

The amicus curiae is confident that the Supreme Cour

will so adjudge. Indeed, it must do so if the United State;

is truly one nation under one flag and one Constitution,

It no longer comports with intellectual integrity to call

all racial imbalances in the public schools of the South

de jure, and all racial imbalances in the public schools of

the North de facto.

There is now no de jure school segregation anywhere in

our land. Racial imbalances in public schools are either

arbitrary or invidious and, hence, constitutionally impermis-

sible, both North and South, or innocent and, hence, con-

stitutionally permissible, both North and South. Racid

imbalances resulting from de facto residential segregation

or non-discriminatory districting or zoning, whether in the

North or in the South, are clearly innocent and constitu-

tionally permissible.

Moreover, it no longer comports with reality, common

sense, or justice to apply one rule to the North and another

to the South because the South did not precede the

Supreme Court in discovering that the “separate, but equal

doctrine” had ceased to be the law of the land.

The Fifth Section of the Fourteenth Amendment

Empowers Congress to Enforce the Equal Protec-

tion Clause by Appropriate Legislation, the First

Section of Article III of the Constitution Em-

powers Congress to Regulate the Jurisdiction of

United States District Courts and United States

; Circuit Courts of Appeals, and the Second Section

of Article III of the Constitution Empowers Con-

: gress to Regulate the Appellate Jurisdiction of the

Supreme Court. Congress Exercised all of These

Powers in an Appropriate Fashion When it Enacted

Title IV of the Civil Rights Act of 1964, Which

Prohibits the Assignment of Students to Public

Schools to Balance the Student Bodies in Such

Schools Racially, and to bus Them From Some

Schools to Other Schools, or From Some School

Districts to Other School Districts to Effect Such

Purpose. The Act’s Prohibition on Busing is Abso-

lute and Deprives Federal Courts of Jurisdiction to

Compel School Boards to Bus Students to Over-

come Racial Imbalances in Schools, Even if Such

Imbalances Result From Discriminatory School

Board Action. The District Court Order Vio-

lated This Act by Commanding the Charlotte-

Mecklenburg School Board to do the Things Pro-

hibited by it, and the Circuit Court Joined in Such

Violation Insofar as it Affirmed the District Court

Order.

The Equal Protection Clause is limited in objective and

operation. It imposes this duty and this duty only on a

| state, ie., to treat in like manner all persons similarly sit-

uated.

SSM» Saath pega cn

VERSES OR

In consequence, it forbids a public school board, acting

as a state agency, to exclude any child from any school

because of the child’s race.

Further than that it does not go. It does not rob any

public school board of its inherent authority to assign child-

ren of any race to their neighborhood school if the schoo}

board acts for reasons other than racial reasons, such as,

purpose to promote ease of school administration, conyep.

ience of the children and the homes from which they come,

or economy of operation.

Hence, it does not empower federal courts to deny child.

ren of any race admission to their neighborhood schools and

to bus them to other schools in other areas to remedy racial

imbalances in their neighborhood schools or the other

schools arising out of the residential patterns of their neigh.

borhoods or of the other areas.

And, above all things, the Equal Protection Clause does

not intend that little children, black or white, shall be treated

as pawns on a bureaucratic or judicial chess board.

When it enacted Title IV of the Civil Rights Act of 1964

to enforce the Equal Protection Clause, Congress recognized

the validity of these observations concerning the meaning

of the Equal Protection Clause. Moreover, it was not oblivi-

ous to the inescapable reality that the different races are

concentrated to substantial degrees in separate residential

areas throughout the nation, and that it would be virtually

impossible to keep the public schools of the country racially

balanced, even if the Equal Protection Clause did not pro

hibit such action.

For these reasons, Congress vested in the Commissioner

of Education, the Attorney General, and the Federal Courts

certain responsibilities regarding what it called the desegre-

gation of public education, but limited the powers of the

Commissioner of Education and the Attorney General, and

the jurisdiction of the Federal Courts to keep them within

constitutional bounds.

Congress was authorized to do these things by the Fifth

Section of the Fourteenth Amendment, which expressly em-

powers Congress to “enforce, by appropriate legislation” the

Equal Protection Clause; the First Section of Article Ill of

the Constitution, which authorizes Congress to prescribe the

jurisdiction of the inferior courts created by it, Chisholm

y, Georgia, 2 Dall. (U.S.) 419, 432 (1793); Turner v. Bank

of North America, 4 Dall. (U.S.) 8 (1799); Ex Parte Bollman,

4 Cranch (U.S.) 75, 93 (1807); Cary v. Curtis, 3 How. (U.S.)

236, 245 (1845); Sheldon v. Still, 8 How. (U.S.) 441 (1850);

Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922);

Lauf v. E. G. Skinner & Co., 303 U.S. 323, 330 (1938);

Lockerty v. Phillips, 319 U.S. 182 (1943); and Yakus v.

United States, 321 U.S. 414 (1944); and the Second Section

of Article III of the Constitution, which vests Congress with

legal power to regulate the appellate jurisdiction of the Su-

preme Court, Wiscart v. D’Auchy, 3 Dall. (U.S.) 321, (1796);

Durousseau v. United States, 6 Cranch 309 (1810); Barry v.

Mercein, 5 How. (U.S.) 103, 119 (1847); Daniels v. Railroad

Co., 3 Wall. (U.S.) 250, 254 (1866); Ex Parte McCardle,

6 Wall. (U.S.) 318 (1868); The Francis Wright, 105 U.S. 381,

386 (1882); Kuntz v. Moffitt, 115 U.S. 487, 497 (1885);

Cross v. Burke, 146 U.S. 82, 86 (1892); Missouri v. Pacific

Railway Co., 292 U.S. 13, 15 (1934); and Stephan v. United

States, 319 U.S. 423, 426 (1943).

The conclusion that Title IV of the Civil Rights Act of

1964 is designed to enforce the Supreme Court rulings that

the Equal Protection Clause forbids a school board, acting

as a state agency, to deny any child admission to any school

it operates because of the child’s race is vindicated by the

legislative history of the Act, as well as by its language.

During the course of the debate on the bill which became

the Civil Rights Act of 1964, Senator Byrd of West Virginia

addressed this question to Senator Humphrey, the floor man-

ager of the bill, and received this reply from Senator Humph-

rey: :

“MR. BYRD, of West Virginia. Can the Senator from

Minnesota assure the Senator from West Virginia that

under Title VI school children may not be bused

from one end of the community to another end of

the community at the taxpayers’ expense to relieve

so-called racial imbalance in the schools?””!

“MR. HUMPHREY. I do.”?

Senator Humphrey made these further statements relat.

ing to the purposes of the bill:

“MR. HUMPHREY. Mr. President, the Constitution

declares segregation by law to be unconstitutiona,

but it does not require integration in all situations

I believe this point has been made very well in the

courts, and I understand that other Senators will cite

the particular cases.

“T shall quote from the case of Bell against School

City of Gary, Ind., in which the Federal court of

appeals cited the following language from a special

three judge district court in Kansas: ‘“Desegregation

does not mean that there must be intermingling of

the races in all school districts. It means only that

they may not be prevented from intermingling or

going to school together because of race or color.’

Brown v. Board of Education, D. C. 139 F. Supp.

468, 470.

“In Briggs v. Elliott (EDSC), 132 Supp. 776, 777,

the Court said: ‘The Constitution, in other words,

does not require integration. It merely forbids dis-

crimination.’ In other words, an overt act by law

which demands segregation is unconstitutional. That

was the ruling of the historic Brown case of 1954.”

The language of the Act discloses this two-fold Congres-

sional intent:

1. To enforce the Supreme Court rulings that the Equal

Protection Clause prohibits the State from denying to any

1Senator Byrd was evidently referring to Title IV, instead of Title

VI.

2Congressional Record, Volume 110, Part 10, Page 12,714, June 4,

1964.

3Congressional Record, Volume 110, Part 10, Page 13,821, June 15,

1964.

child admission to any school it operates because of the

child’s race; and

2. To keep overzealous bureaucrats and federal judges

from straying beyond constitutional limits in cases involv-

ing the desegregation of public schools.

Since no action of his is involved in this case, the amicus

curiae pretermits discussion of the provisions of the Civil

Rights Act of 1964 relating to the Commissioner of Educa-

tion.

In phrasing the Act, Congress uses the terms “desegrega-

tion” and “discrimination” interchangeably to express the

concept made familiar by the prevalent use of the word

“discrimination” to mean state action denying persons admis-

sion to public colleges or public schools because of their

race.

This observation is made indisputable by Section 401(b)

which expressly declares that “desegregation” merely means

“the assignment of students to public schools and within

such schools without regard to their race, color, religion,

or national origin’; Section 407(a)(1) and (2) which refer

to children who “are being deprived by a school board of

the equal protection of the laws” and individuals who have

“been denied admission” to a public college or permission

“to continue at a public college by reasons of race, color,

religion, or national origin’; Section 409 which directs its

attention to “discrimination in public education”; and Sec-

tion 410 which stipulates that “nothing in this title shall

prohibit classification and assignment for reasons other than

race, color, religion, or national origin.

There is not a single syllable in Title IV of the Civil Rights

Act of 1964 giving any support to a different interpretation.

Section 401(b) merits further consideration because it

specifies not only what Congress means by the term “‘deseg-

regation”, but also what Congress does not mean by that

term.

Section 401(b) consists of two clauses. The first claug

provides that “desegregation” as used in Title IV “meay

the assignment of students to public schools and within such

schools without regard to their race, color, religion, or n.

tional origin,” and the second clause provides that “desegre.

gation” as used in Title IV “shall not mean the assignment

of students to public schools in order to overcome racial

imbalance.”

As a law made by Congress, Title IV is binding on fed.

eral judges, and defines their jurisdiction in respect to public

schools operated by public school boards acting as state agen.

cies.

The first clause of Section 401(b) commands school boards

to ignore race, color, religion, and national origin as factor

in assigning students to public schools. Since federal judges

have no power to add anything to the laws they enforce,

this clause merely confers upon federal judges the limited

jurisdiction to enforce its command by decrees which prevent

recalcitrant school boards from denying otherwise eligible

children admission to schools on account of their race, color,

religion, or national origin.

Since federal judges do not have power to subtract any-

thing from laws they enforce, the second clause of Section

401(b) denies to federal judges jurisdiction to compel school

boards to assign “students to public schools in order to over-

come racial imbalance.” By this clause, Congress forbids

federal judges to make decrees compelling school boards to

take affirmative steps to commingle black and white children

in public schools in proportions satisfactory to themselves

to remedy racial imbalances occasioned by de facto residen-

tial segregation or non-discriminatory action on the part of

school boards.

This interpretation of Section 401(b) is completely con-

firmed by Section 407, 409, and 410 of Title IV.

Before the enactment of Title IV of the Civil Rights Act

of 1964, only the individuals aggrieved thereby had legal

standing to make complaint in federal courts concerning

state-imposed segregation in public education. They were

restricted to seeking relief for themselves and their children

and other persons similarly situated. They did not have the

right to demand that federal courts should substitute fed-

erally coerced integration for state-imposed segregation.

When it drafted Title IV, Congress decided to extend to

the Attorney General standing to sue for “such relief as may

be appropriate” in behalf of two groups of people if he be-

lieves their complaints to be “meritorious” and concludes

that they are “unable *** to initiate and maintain appro-

priate legal proceedings for’’ their own “relief.”” These groups

of people are described, in essence, as children who “are

= being deprived by a school board of the equal protection

) of the laws” and individuals who have been “denied admis-

~ sion” to a public college or “permission to continue in at-

= tendance at a public college by reason of race, color, religion

or national origin.” To this end, Congress inserted Section

Section 407(a) in Title IV.

At the same time, however, Congress decided to preserve

intact the existing rights of individuals to sue in their own

behalf for relief against state-imposed segregation. To ac-

complish this purpose, Congress stipulated in Section 409

that nothing in Title IV “shall affect adversely the right of

any person to sue for or obtain relief in any court against

discrimination in public education.”

Congress was determined, however, not to increase the

powers of federal judges when it gave the Attorney General

standing to seek relief against discrimination in public edu-

cation in behalf of the aggrieved persons designated in Sec-

tion 409(a). Moreover, Congress was equally as determined

- that federal judges should not have jurisdiction to compel

+ gchool boards to deny children admission to their neighbor-

hood schools and transport them hither and yon to achieve

racial balances in public schools, regardless of whether the

racial imbalances sought to be removed to accomplish such

purpose arise out of innocent causes or discriminatory action

on the part of school boards.

Congress made these purposes manifest by inserting in

Section 409(a) language expressly providing “‘that nothing

herein shall empower any official or court of the United

States to issue any order seeking to achieve a racial balance

in any school by requiring the transportation of pupils o

students from one school to another or one school district

to another in order to achieve such racial balance, or other.

wise enlarge the existing power of the court to insure com.

pliance with constitutional standards.”

By so doing, Congress deprived all federal courts of the

jurisdiction to order public school boards to bus children

from one school to another or from one school district to

another to remedy racial imbalances in public schools regard-

less of whether such imbalances arise out of innocent causes

or discriminatory school board action. As appears from the

cases which the amicus curiae has previously cited, Congress

had undoubted power to do this under the First Section of

Article III of the Constitution, which empowers it to define

the jurisdiction of inferior federal courts, and under the Sec-

ond Section of Article III of the Constitution, which ex-

pressly provides that “the Supreme Court shall have ap-

pellate jurisdiction, both as to law and fact, with such

exceptions, and under such regulations as the Congress shall

make.”

It necessarily follows that the District Court violated the

provisions of the Civil Rights Act of 1964 when it ordered

the Charlotte-Mecklenburg School Board to bus thousands

of children from some schools to other schools and from

some school districts to other school districts to overcome

racial imbalances in any of its schools regardless of the ori-

gin of such racial imbalances; and that the Circuit Court

erred in affirming the provisions of the District Court order

relating to the transportation of senior high school and jun-

ior high school students.

While such statutes apply to the Executive Department of

the Federal Government only, and for that reason are not

controlling in this case, it seems not amiss to direct the atten-

WAS EP OR MF Feral te 8 Oe AR RRR OEE SPT -

Cee Rea ie ee RG - ois

es KSDI PRIN

;

tion of the Supreme Court to congressional hostility to the

busing of children to achieve racial balancing in public

schools. Congress manifested its hostility to such action by

the Elementary and Secondary Education Act of 1965, as

amended in 1966, which forbids “any department, agency,

officer, or employee of the United States * * * to require

the assignment or transportation of students or teachers in

order to overcome racial imbalance,” (P.L. 89-10, Title VIII,

Section 804; 20 U.S.C. Section 884); the Department of

Labor, and Health, Education, and Welfare Appropriation

Act of 1969, which provides that “no part of the funds

contained in this Act shall be used to force busing of stu-

dents * * * in order to overcome racial imbalance as a con-

dition precedent to obtaining Federal funds otherwise avail-

able to any State, school district, or school”, (P.L. 90-557,

Title IV, Section 410); and the Office of Education Appro-

priation Act of 1971, which provides that “no part of the

funds contained in this Act shall be used to force any school

or school district which is desegregated as that term is de-

fined in Title IV of the Civil Rights Act of 1964, Public Law

88-352, to take any action to force the busing of students”

(P.L. 91-380, Title II, Section 210).

IV.

A School Board has the Power to Devise and Im-

plement any Non-discriminatory Plan for the As-

signment of Children to the Public Schools it

Operates. The District Court not Only Rejected

a Non-discriminatory Assignment Plan Submitted

by the Charlotte-Mecklenburg School Board, but

it Usurped and Exercised the Authority of the

School Board in this Respect by Devising a Plan

of its Own Which Commands the School Board to

Deny Thousands of Children Admission to Their

Neighborhood Schools, and to bus Them to Other

Schools to Mix the Races in the Various Schools

in Numbers or Proportions Satisfactory to the

District Court. By so Doing, the District Court

Ordered the School Board to Deny to the Thou-

sands of Children Affected by its Order Admission

to Their Neighborhood Schools in Violation of the

Equal Protection Clause, and to Bus Them to

Other Schools or Other School Districts in Viola-

tion of Section 407(a)(2) of the Civil Rights Act

of 1964. The Circuit Court Concurred in These

Violations, and Erred Insofar as it Affirmed the

Order of the District Court.

A school board, acting as a state agency, has the power

to assign children to the public schools it operates free from

interference by the Federal Judiciary as long as it obeys the

Equal Protection Clause and does not exclude any child from

any school because of the child’s race.

When a school board violates the Equal Protection Clause,

a Federal Court has jurisdiction to order the school board

to devise and implement a plan sufficient to remedy its dis-

criminatory assignment of children to its schools, and to

punish the members of the school board for contempt of

court if they fail to obey the order. Nevertheless, the power

to devise and implement a plan to remedy the discriminatory

assignment continues to reside in the school board, and the

Federal Court is without power to reject a non-discriminatory

submitted by the school board because such non-

discriminatory plan will not mix the races in the schools in

numbers or proportions satisfactory to the Federal Court.

Besides the Federal Court cannot usurp and exercise the

power of the School Board to devise a non-discriminatory

assignment plan because the Federal Court wishes to mix

the races in the schools in greater numbers or proportions

than the non-discriminatory plan of the School Board en-

visages.

The District Court violated all of these principles when ii

made its order of February 5, 1970 (819a-839a), its supple-

mental findings of fact of March 21, 1970 (1198a-1220a),

and its supplemental memorandum of March 21, 1970

(1221a-1238a).

Pursuant to the order which the District Court had en-

tered on December 1, 1969, the Charlotte-Mecklenburg

School Board submitted to the District Court on February 2,

1970 its plan for desegregation of schools (726a-742a). By

this plan the School Board undertook to restructure its geo-

graphical attendance districts or zones in such a manner as

to promote the highest degree of racial integration obtaina-

ble by geographical districting or zoning, and to assign all

school children, black or white, to the neighborhood schools

in the district or zone of their residence, regardless of race.

The plan undertook to further augment desegregation by a

transfer system heavily weighted in favor of permitting black

children to transfer from predominantly black schools to

predominately white schools.

Inasmuch as it treated all children similarly situated ex-

actly alike and did not exclude any child from any school

on account of the child’s race, the plan submitted by the

School Board on February 2, 1970, was in complete har-

mony with the Equal Protection Clause and it was obligatory

for this reason for the District Court to approve it and permit

the School Board to implement it.

Instead of doing so, the District Court rejected the nop.

discriminatory plan submitted by the School Board, and

usurped and exercised the power vested in the School Board

by adopting a plan of its own. The District Court accom.

plished this purpose by engrafting upon the plans of the

School Board drastic alterations and revisions recommended

by Dr. Finger, which commanded the School Board to deny

thousands of children admission to their neighborhood

schools, and to bus them long distances from some schools

to other schools, and from some school districts or zones

to other school districts or zones.

When all is said, the District Court commanded the School

Board to take this action to remedy racial imbalances in

black schools in northwest Charlotte arising out of de facto

residential segregation in that area, and to produce racial

commingling in these schools of northwest Charlotte and

other schools in other areas in numbers or proportions

greater than those envisaged by the plan of the School

Board.

The District Court virtually confesses that its order was

designed to effect these purposes by this recital which ap-

pears in its supplemental findings of fact of March 21, 1970:

“Both Dr. Finger and the school board staff ap-

pear to have agreed, and the court finds as a fact,

that for the present at least, there is no way to de-

segregate the all-black schools in Northwest Charlotte

without providing (or continuing to provide) bus or

other transportation for thousands of children. All

plans and all variations of plans considered for this

purpose lead in one fashion or another to that con-

clusion.” (1208a)

In addition to usurping and exercising power vested by

law in the School Board, the District Court order commands

the School Board to violate rights vested in thousands of

school children by the Equal Protection Clause and the Civil

Rights Act of 1964.

EEE I OR haat RES AI BRR BAS kN Ile aba ARE ab Lie hai. tn Taipan Seahsotae

ne ER thele & te ta Oe a 0

Since the power to assign children to public schools

belongs to the school board administering such schools, no

child has the constitutional or legal right in the first instance

to attend any particular school, but when a school board

adopts a non-discriminatory system for assigning children to

neighborhood schools in the attendance district or zone of

their residence, children acquire, as against every govern-

mental agency except the school board, the legal right to

attend the schools to which they have been so assigned.

This right is additional to their right not to be excluded from

such schools because of their race.

By its previous practices and its plan of February 2, 1970,

the School Board had assigned thousands of senior high

school, junior high school, and elementary school children

to their neighborhood schools in a wholly non-discriminatory

fashion.

By its order of February 5, 1970, the District Court com-

manded the School Board to do two things which clearly

offend the Equal Protection Clause. In the first place, the

District Court commanded the School Board to treat differ-

ently children similarly situated by allowing thousands of

children to attend their neighborhood schools, and by ex-

cluding thousands of other children from admission to their

neighborhood schools; and in the second place, the District

Court commanded the School Board to bus the thousands

of children excluded from their neighborhood schools to

some other schools in other districts or zones to desegregate

both their neighborhood schools and the other schools in

numbers or proportions satisfactory to the District Court.

No amount of sophistry can erase the plain truth that

the second group of children were denied admission to their

neighborhood schools on account of their race.

Manifestly, the Equal Protection Clause does not confer

upon any Federal Court jurisdiction to enter a wondrous

order to compel a school board to obey the Equal Protec-

tion Clause by violating it. Congress apparently realized

this bizarre result of busing children from one school to

another, or from one school district or zone to another dj

trict or zone, when it prohibited any officer or Court of tj

United States to require such action to achieve the racj

balancing of schools.

The Circuit Court erred in affirming the order of the D

trict Court rejecting the plan submitted by the School Boar

and in affirming, in part, the order of the District Coy

excluding children from their neighborhood schools and

quiring them to be bused to other schools and other scho

districts in other areas.

CONCLUSION

For the reasons stated, the Court should reverse the p

visions of the judgment of the Circuit Court insofar as th

relate to the assignment and busing of senior high sche

and junior high school students; approve the provisions

the judgment of the Circuit Court insofar as they vac:

the order of the District Court relating to the assignme

and busing of elementary school children; and grant the n

tion of the School Board to stay the order of the Distr

Court reinstating its previous orders relating to the assis

ment and busing of elementary school students.

Respectfully submitted,

Sam J. Ervin, Jr.

515 Lenoir Street

Morganton, North Caroli

Charles R. Jonas

301 W. Main Street

Linconton, North Carolir

Ernest F. Hollings

141 East Bay Street

Charleston, South Caroli

A. 1

APPENDIX

ict +

Constitutional Provisions Involved

|. The First Section of the Fourteenth Amendment, which

reads, in pertinent part, as follows: “nor (shall any

State) deny to any person within its jurisdiction the

equal protection of the laws.”

2. The Fifth Section of the Fourteenth Amendment, which

specifies that “The Congress shall have power to en-

force, by appropriate legislation, the provisions of this

Article.”

3. The First Section of Article Ill, which states, in perti-

nent part, that “The judicial Power of the United States,

shall be vested in one supreme Court, and in such in-

ferior Courts as the Congress may from time to time

ordain and establish.”

4. The Second Section of Article Ill of the Constitution,

which reads, in pertinent part, as follows:

“The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or

which shall be made, under their Authority; - to all

Cases affecting Ambassadors, other public Ministers

and Consuls; - to all Cases of Admiralty and mari-

time Jurisdiction; - to Controversies to which the

United States shall be a Party; - to Controversies

between two or more States; - between a State and

Citizens of another State; - between Citizens of dif-

ferent States; - between Citizens of the same State

claiming Lands under Grants of different States, and

between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

;

“In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State

shall be Party, the supreme Court shall have original

Jurisdiction. In all the other Cases before mentioned,

the supreme Court shall have appellate Jurisdiction,

A. 2

both as to Law and Fact, with such Exceptions, ang

under such Regulations as the Congress shall make.”

Statutory Provisions Involved

1. Title IV of the Civil Rights Act of 1964 which of.

ginally appeared in Title IV of Public Law 88-352 of

the 88th Congress and is now codified as 42 USsc

2000c - 2000c-9. This statute reads as follows:

“Title VI - Desegregation of Public

Education Definitions

“Sec. 401. As used in this title -

“(a) ‘Commissioner’ means the Commissioner of

Education.

“(b) ‘Desegregation’ means the assignment of stv-

dents to public schools and within such schools with-

out regard to their race, color, religion, or national

origin, but ‘desegregation’ shall not mean the assign

ment of students to public schools in order to over

come racial imbalance.

““(c) ‘Public school’ means any elementary or sec:

ondary educational institution, and ‘public college

means any institution of higher education or any

technical or vocational school above the secondary

school level, provided that such public school o

public college is operated by a State, subdivision o!

a State, or governmental agency within a State, o

operated wholly or predominantly from or through

the use of governmental funds or property, or fund

or property derived from a governmental source.

*(d) ‘School board’ means any agency or agen

cies which administer a system of one or more publi

schools and any other agency which is responsibl

for the assignment of students to or within such sys

tem.

BS SRR Fs ANS

WEE REN Tabby

AD ~ Sys

OS oe ae

ban) s

Sk Uae USEPA BPs MAE saksasaNDS HORE SR LNAT SY

es ene tober a hae’

A. 3

Survey and Report of Educational

Opportunities

“Sec. 402. The Commissioner shall conduct a sur-

vey and make a report to the President and the Con-

gress, within two years of the enactment of this title,

concerning the lack of availability of equal educa-

tional opportunities for individuals by reason of race,

color, religion, or national origin in public educational

institutions at all levels in the United States, its ter-

ritories and possessions, and the District of Columbia.

Technical Assistance

“Sec. 403. The Commissioner is authorized, upon

the application of any school board, State, munici-

pality, school district, or other governmental unit

legally responsible for operating a public school or

schools, to render technical assistance to such appli-

cant in the preparation, adoption, and implementa-

tion of plans for the desegregation of public schools.

Such technical assistance may, among other activi-

ties, include making available to such agencies infor-

mation regarding effective methods of coping with

special educational problems occasioned by desegre-

gation, and making available to such agencies person-

nel of the Office of Education or other persons spe-

cially equipped to advise and assist them in coping

with such problems.

Training Institutes

“Sec. 404. The Commissioner is authorized to

arrange, through grants or contracts, with institu-

tions of higher education for the operation of short-

term or regular session institutes for special training

designed to improve the ability of teachers, supervi-

sors, counselors, and other elementary or secondary

school personnel to deal effectively with special edu-

cational problems occasioned by desegregation. In-

dividuals who attend such an institute on a full-time

basis may be paid stipends for the period of their

A. 4

attendance at such institute in amounts specified by

the Commissioner in regulations, including allow.

ances for travel to attend such institute.

Grants

“Sec. 405. (a) The Commissioner is authorized,

upon application of a school board, to make grants

to such board to pay, in whole or in part, the cost

of -

“(1) giving to teachers and other school per-

sonnel in-service training in dealing with problems

incident to desegregation, and

“(2) employing specialists to advise in prob-

lems incident to desegregation.

“(b) In determining whether to make a grant,

and in fixing the amount thereof and the terms and

conditions on which it will be made, the Commis-

sioner shall take into consideration the amount avail-

able for grants under this section and the other ap-

plications which are pending before him, the financial

condition of the applicant and the other resources

available to it; the nature, extent, and-gravity of its

problems incident to desegregation; and such other

factors as he finds relevant.

Payments

“Sec. 406. Payments pursuant to a grant or con-

tract under this title may be made (after necessary

adjustments on account of previously made overpay-

ments or underpayments) in advance or by way of

reimbursement, and in such installments, as the Com-

missioner may determine.

A. 5

Suits by the Attorney General

“Sec, 407. (a) Whenever the Attorney General re-

ceives a complaint in writing -

“(1) signed by a parent or group of parents to

the effect that his or their minor children, as mem-

bers of a class of persons similarly situated, are

i] being deprived by a school board of the equal pro-

; tection of the laws, or

4 ‘(2) signed by an individual, or his parent, to

i the effect that he has been denied admission to

j ‘or not permitted to continue in attendance at a

public college by reason of race, color, religion,

i or national origin, and the Attorney General be-

‘ lieves the complaint is meritorious and certifies

that the signer or signers of such complaint are

unable, in his judgment, to initiate and maintain

appropriate legal proceedings for relief and that

the institution of an action will materially further

the orderly achievement of desegregation in pub-

lic education, the Attorney General is authorized,

after giving notice of such complaint to the ap-

propriate school board or college authority and

after certifying that he is satisfied that such board

or authority has had a reasonable time to adjust

the conditions alleged in such complaint, to in-

stitute for or in the name of the United States a

e civil action in any appropriate district court of the

| United States against such parties and for such re-

. lief as may be appropriate, and such court shall

% have and shall exercise jurisdiction of proceedings

instituted pursuant to this section, provided that

nothing herein shall empower any official or court

of the United States to issue any order seeking to

achieve a racial balance in any school by requir-

ing the transportation of pupils or students from

one school to another or one school district to

another in order to achieve such racial balance,

or otherwise enlarge the existing power of the

court to insure compliance with constitutional

standards. The Attorney General may implead as

defendants such additional parties as are or be-

come necessary to the grant of effective relief

hereunder.

A. 6

“(b) The Attorney General may deem a person

or persons unable to initiate and maintain appropriate

legal proceedings within the meaning of subsection

(a) of this section when such person or persons are

unable, either directly or through other interested

persons or organizations, to bear the expense of the

litigation or to obtain effective legal representation;

or whenever he is satisfied that the institution of such

litigation would jeopardize the personal safety, em-

ployment, or economic standing of such person or

persons, their families, or their property.

“(c) The term ‘parent’, as used in this section in-

cludes any person standing in loco parentis. A ‘com-

plaint’ as used in this section is a writing or document

within the meaning of section 1001, title 18, United

States Code.

“Sec. 408. In any action or proceeding under

this title the United States shall be liable for costs

the same as a private person.

“Sec. 409. Nothing in this title shall affect ad-

versely the right of any person to sue for or obtain

relief in any court against discrimination in public

education.

“Sec. 410. Nothing in this title shall prohibit clas-

sification and assignment for reasons other than race,

color, religion, or national origin.

[TE COPY | Jt"?

SEP 25 1970

IN THE SUPREME COURT OF THE UNITED STATE CLERK f

SWANN, ) SUPRE OURT

Petitioner ) CASE # Boxe

vs. ) mw O 1

)

CHARLOTTE -MECKLENBURG)

BOARD OF EDUCATION, )

Respondent )

CURIAE

* Made in the absence of consent being seasonably

received from the Parties to this case.

Comes now before this Court, Newton Collier

Estes, to request an opportunity to file a brief in

opposition to the Fourth Circuit Court's ordering

' busing of public school children to achieve ar-

bitrary numerical racial balances in student

f bodies.

A. He states that his interest in the Court's

decision is based on:

; 1) The assumption that the decision

+ rendered will serve as a legal guideline for

school assignment rulings to be rendered at

Federal Court hearings in the City of Memphis,

where he is a resident, and in whose school

system he has children registered.

2) That a decision requiring coercive

busing would reduce his power to affect the

policies and actions of his locally-constituted

May,

PEPE Ae?

€.

governments.

3) That he and his family would be de-

nied the right to make many of the day-to-day

household decisions, such as when to get up in

the morning and where they would go when they

leave the house -- decisions which form a

considerable part of one's, pursuit of happiness.

B. He wants to call to the Court's atten-

tion:

1) The argument of what constitutes a

"unitary" school system has so far been the

prime consideration in every Federal Court hear-

ing on where children must attend school.

2) That arguments have not been fully

presented on whether methods thus far ordered

to achieve this type of school system might run

counter to the Constitutional requirements that

the main function of governments is to enact and

operate laws, after obtaining consent of those

governed (through the election process), which

tend to insure domestic tranquility, and to

guarantee individual liberty now and in the

future.

C. He wishes to suggest to the Court that

any decision it renders in this hearing should be

within the framework of the stated purposes for

which our Constitutional government was

instituted.

He believes the Court must make its

disposition of this case relate to those stated

Constitutional principles, because a failure to

do so would dramatically alter the relationship

the American citizen has always had with his

government.

He would cease to be a formulator in the

operations of his government, and would feel

the need to participate as an active defender of

his Constitutional rights against a Court-ordered

federal tyranny.

He does now submit that a decision

which would, in effect, abrogate the Preamble to

the Constitution should be construed by those

Americans, who regard liberty as the single most

important of all human rights, as a declaration

of war by the Federal government on its citizens.

THESE PREMISES CONSIDERED, I, Newton

Collier Estes pray that I be given leave to file a

brief with the Court, and be granted permission

to present oral arguments in its support before

the Court.

Nein, 0. Elen

Newton C. Estes

3069 Boxdale

Memphis, Tennessee

no FILED

om 8s Wo

IN THE SUPREME COURT OF THE UNITE ROSSA TEM ER, cLER

SWANN, ) SUPREME COURT

Petitioner ) CASE # 281

) (formerly # 1713)

)

CHARLOTTE-MECKLENBURG )

BOARD OF EDUCATION, )

BRIEF OF AMICUS CURIAE

IN SUPPORT OF RESPONDENT

vs.

Comes now before this Court, Newton Collier Estes

to file a brief in opposition to the Fourth Circuit

Court's ordering busing of public school children

to achieve arbitrary numerical racial balances in

student bodies.

A. He states that his interest in this case is

based on the belief that coercive busing would

jeopardize his family's right to freely choose the

activities they might wish to undertake in their

pursuit of happiness.

1) He believes his right to choose what is

best for his family may only be limited under our

Constitution by the restriction that, in so doing,

he does not deny anyone else what is rightfully

his.

2) He wants to show the Court that he

would become subject to taxation without repre-

sentation if the elected officials in his locality

should lose the authority to spend school tax

monies according to the desires of the electorate.

3) He believes that he has the God-

ordered duty to make decisions calculated to en-

hance his children's health, safety and happiness.

He believes coercive busing would be tantamount

to forcing him to delegate this duty to others, who

could not be held responsible for the deterioration

or loss’ of these fundamental goals of human

endeavor.

4) He wants to show the Court that

coercive busing would alienate the general public

from its interest and support of public education.

This circumstance would certainly lower the

quality of education in this area, and quite probably

would reduce school budgets to such an extent,

that for many children there would be no nearby

school open for classes.

B. He wishes to present logical argument show-

ing Supreme Court ordered busing would nullify these

basic tenets of our Constitution and Declaration of

Independence.

. That the people are to be ruled only with

their consent.

- That all powers not delegated by the

Constitution to the federal government are reserved

to the states and to the people.

That a basic function of government is to

act to insure domestic tranquility.

- That a basic function of government is to

act to secure the blessings of liberty to its citizens.

. That the federal government's actions are

to be motivated by the expressed desires of its

citizens.

_— -.

™m

en). bath ct

. That laws should be enacted without

regard to race, color or creed.

. That the fundamental purpose of our

Constitutional system is for the government to be

controlled by the people - never that it should

exercise tyranny over the people.

1) He states that no body of local citizens -

would benefit or be served by coercive busing,

because there is no evidence that large numbers of

parents of school children have joined into efforts

to request this of local governments.

2) He suggests that the impetus for

coercive busing arises from two sources.

a) The disappointment among those

groups who were instrumental in the outlawing of

de jure segregation and in the enactment of public

accommodation legislation that the new opportunities

to integrate have not been seized upon by those who

were restrained by law from doing so in the past.

b) That Supreme Court rulings calling

for "unitary" school systems, without further

definition, has given some legal standing for actions

designed to force citizens to do that which it was

assumed they themselves would freely choose to do,

but which, for reasons of their own, it has now

become apparent they do not wish to do.

3) He states that a ruling requiring coercive

busing would say, in effect, that local laws per-

mitting students to attend their nearest school, or

to transfer to a better one, are un-constitutional

because they permit people to do what they wish,

rather than forcing them to do what their federal

government says they should wish to do.

4) He states that a ruling requiring co-

ercive busing would in effect be judicial legisla-

tion in direct conflict with recently enacted laws

at both the state and federal levels. Such action

undertaken against the expressed will of the people

would represent an act of tyranny by government

over the people.

5) He suggests that the Court should re-

ject those reasons given by the advocates of

coercive busing because they are based on a prop-

osition which, if accepted by the Court, would

suggest to the American Negro citizen that his own

government sees him as inferior to other races.

This comes when you accept that it is a

deprivation for Negroes to associate primarily with

Negroes. The same cannot also be said ina

straightforward manner about whites in an effort to

lessen the stigma; because the achievement of

Western Civilization refutes it.

The acceptance of such arguments will

place a heavy burden upon the Negro in his climb

toward self-esteem.

6) He suggests a ruling requiring coercive

busing would reinstate the condition prior to the

1954 Brown decision, because it would require

school boards to exclude a student from attending

l be of his race.

How much worse for this to be done by the

federal government against the will of the majority -

than by the states acting in accord with the Tenth

Amendment and with the consent of the governed!

He suggests that the Court is now ina

on to re-enunciate the principles upon

this country was founded, In so doing, it

slieve the great fear that ours may be the

eneration recorded in the history of the

i States which received freedom as its

"ge, but failed to preserve it and pass it on

> next.

' It can do so by premising its ruling on

“fundamentals of freedom.

‘ 1) Our Constitution was instituted for the

ssed purpose of guaranteeing that citizens

be ruled only with their consent.

| 2) That to legislate against the desires of

itizens constitutes tyranny which Americans

‘be rightful to oppose.

| 3) That the pursuit of happiness is deeply

}in the right of an individual to freely choose

id of neighborhood in which the fruits of his

yould allow him to live and send his children

4) To deny American citizens these free-

3 to lose the right to require their allegiance.

A ruling which would accomplish these ends

state that the Constitution does not require

busing of students to achieve racial

. It not only does not require it, but unless

ted people request it, the Constitutional

governing people only with their consent

prohibits any branch of the federal

ent from requiring coercive school busing.

= : °

. it :

. ‘

° -

’ 7s . . .

® 7

”

s . . . . *

s cin

ee o% @ ;

-@ . ° .

. . i = %

-“ @ . ' .

: _* «eR .

. ' °

‘

Fa ° ‘ ’ . . .

, - .

es . ee ,

. ° r “1

i . ' ° es é ° . ®e"*

‘

.- - - .

? : ; : ’ . ° gsh

etn t bs

These Premises considered, I, Newton

Collier Estes pray that this brief be accepted by

the Court, and that I be permitted to argue this

brief before the Court.

Teter. 0. Ca

Newton C. Estes

3069 Boxdale

Memphis, Tn. 38118

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.