# Amicus Curiae Brief — Swann v. Charlotte-Mecklenburg Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0266%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 402 U.S. 1 ## 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 7 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) ............. ee 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) . © United States v. Montgomery County Board of Education, 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, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al., No. 349 CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al., Petitioners, v. 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 2 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 3 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 © Protection Clause of the Fourteenth Amendment when © it creates non-discriminatory attendance districts or zones > and assigns all children, black and white, to neighborhood > schools in the district or zone in which they reside without © regard to their race? } 2. Does the Equal Protection Clause of the Fourteenth > Amendment empower a federal court to order a public © school board to assign children to the schools it operates to » 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 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 5 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- © lenburg County reside in predominately black residential } 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, © the School Board established an effective system of deter- + 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 6 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 7 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 © plans mentioned above shed light on the School Board’s 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 8 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 9 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 10 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) . : 11 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 12 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 13 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 14 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 15 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. 16 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 17 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 I. 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- 18 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 19 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. 20 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 i aa ti Me 21 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. 22 I. 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 23 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 24 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. 25 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. 26 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. 27 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- 28 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 29 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 30 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. 31 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. = 32 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 33 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. 34 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 > t ; 35 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). 36 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 37 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. a 38 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. ad 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 39 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 40 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. is et ; “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. ie i * bs Fe 2 by x vo ¢ tS 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 es ene tober a hae’ i. y ¥ rs * bs ES 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 ) © MoTION FOR LEAVE TO FILE A BRIEF OF AMICUS 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? & & €. Pa & = bo =: 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. _— -. sy z fa Ps ™m Sf bf ge @ g = s. ax Ss ps & 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0266%3A16. Public record. Not legal advice.