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

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E. ROBERT SEAVER, C

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 281

JAMES E. SWANN, etal.,

Petitioners

versus

CHARLOTTE-MECKLENBURG BOARD

OF EDUCATION, et al.,

Respondents,

Certiorari to the United States Court of Appeals

for the Fourth Circuit

AMICUS BRIEF OF THE SCHOOL BOARD OF

MANATEE COUNTY, FLORIDA

Kenneth W. Cleary

Dye, Dye, Smith, Cleary & Scott

P. O. Box 2480

Bradenton, Florida 33505

Attorney for the School Board

of Manatee County, Florida

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TABLE OF CONTENTS

Page

Nature of Interest of Amicus ...............4.. Ps

Questions Presented .......-..----0550-, TEES -

Argument «6-1 eee eee eee ee ee eee 2

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TABLE OF AUTHORITIES

Case Page

Alexander v. Holmes County Board of Education, 396

en ae) a eae bk hs Gk a eB eee oa! Nd 6 2

Brown v. Board of Education 1, 347 U.S. 483 ......... 2

Deal v. Cincinnati Board of Education, 369 F. 2d 55, cert.

denied 389 U. S. 847, 88 S. Ct. 39,19 L.Ed 2d 114 .... 3

Ellis v. Board of Public Instruction of Orange County, 423

re se oe aloe eae pte dss sb ae ee ee 4

Graves v. Walton County Board of Education, 403 F. 2d 184. 3

Green v. County School Board of New Kent County, 88 S.

eI Og pg oh ek be ee oe eee 4

Jackson v. Marvell School District, 416 F.2d380 ....... 3

Swann v. Charlotte-Mecklenburg Board of Education, 369

tere Oh ge ho wie eae ke oe 3

United States v. Jefferson County Board of Education, 372

F, 2d 836, cert. denied sub nom. Caddo Parish School

Board v. United States, 389 U.S.840 ............ 3

IN THE

" SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 281

JAMES E. SWANN. e/al.,

Petitioners

versus

CHARLOTTE-MECKLENBURG BOARD

OF EDUCATION, et ai.,

Respondents,

Certiorari to the United States Court of Appeals

for the Fourth Circuit

AMICUS BRIEF OF THE SCHOOL BOARD OF

MANATEE COUNTY, FLORIDA

2

NATURE OF INTEREST OF AMICUS CURIAE

This brief is filed in behalf of the School Board of the

County of Manatee, a political subdivision of the State of

Florida, and is sponsored by the attorney for the School Board

of Manatee County, Florida, the authorized law officer thereof

under Rule 42 (4) of the Rules of the Supreme Court of the

United States.

The interest of the School Board of Manatee County arises

because the Fifth Circuit Court of Appeals in Caroline Harvest,

et al. The Board of Public Instruction, Manatee County,

Florida, et al., vs. Jerome Pratt, et al., 5 Cir. 1970 —-—-Ff.

2d.——— [No. 29,425, June 26, 1970] , affirmed an order of the

District Court, Middle District of Florida, entered on January

29, 1970, which order directed the pairing and clustering of

certain elementary schools in a manner which achieved an

artificial racial balance in all elementary schools. The same

order, in effect, necessarily required the bussing of students

from their neighborhood school areas to another neighborhood

school area where classes were to be held, a condition which did

not previously exist prior to the entry of the aforementioned

orders.

QUESTIONS PRESENTED

1. Does the Constitution require substantial racial balance in

the system?

2. Does the United States Constitution authorize a court to

order a plan which, of necessity, requires bussing for its

implementation?

ARGUMENT

The Constitution requires wholly non-racial public school

systems. This Court has never ruled that a unitary school system

is one in which substantial racial balance as to student body

composition is required. There appears to be a subliminal theme

in desegregation cases decided by this Court indicating that race

must not be considered. This starts in Brown vy. Board of

Education 1, 347 U.S. 483, and runs through Alexander ¥.

Holmes County Board of Education, 396 U.S. 19. This Court in

|

held that a unitary system is one within which “no

is to be effectively excluded from any school because of

race or color.” (emphasis added). There is no requirement that a

person be included because of race or color, and, in fact, to so

would result in an exclusion from another school solely

on the a of race or color.

The necessity or non-necessity of racial balance is an

question of federal law which should be settled by

this Court. It is a question in which there is a conflict among

the decisions of the Courts of Appeal in the several circuits. The

Sixth Circuit in Deal v. Cincinnati Board of Education, 369 F.

2. 55, cert. denied 389 U.S. 847, 88 S. Ct. 39, 19 L.Ed. 2d.

114 held that there is no constitutional duty on the part of a

Board to bus Negro or white children out of their

or to transfer classes for the sole purpose of

alleviating, racial imbalance. The Fourth Circuit in Swann v.

Qurlotte-Mecklenburg Board of Education, 369 F. 2d. 29,

polds that substantial racial balance is not necessary. Other

cases in other circuits have made similar rulings. The Fifth

Circuit is unsettled but in recent cases has become extremely

color conscious and has demanded racial balance. See United

States v. Jefferson County Board of Education, 372 F. 2d. 836,

cert. denied sub nom. Caddo Parish School Board v. United

States, 389 U.S. 840.

Another question which arises, assuming this Court

determines that substantial racial balance is required within a

unitary system is whether or not each school within a system

must have both black students and white students within its

student body composition. It is obvious that the lower Court in

this case ruled that there must be blacks and whites in every

school whenever possible. The various Circuits are in conflict

over this question. This problem appears in the Fifth Circuit

case of Graves v. Walton County Board of Education, 403 F.

2d. 184, wherein the Court holds that if there are still all-Negro

schools, the plan fails, as a matter of law, to meet constitutional

standards established in the Green case. This theorem is carried

forward in the Eighth Circuit in Jackson v. Marvell School

District, 416 F. 2d. 380. The Fourth Circuit in Swann yr.

Charlotte-Mecklenburg Board of Education, supra, holds that

the presence of an all black school will not invalidate an

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4

otherwise unitary system. The same conclusion is reached in the

Sixth Circuit in the Deal cases and has also been reached in the

Fifth Circuit in Ellis v. Board of Public Instruction of Orange

County, 423 F. 2d. 203. The contradictory positions reached in

the Fifth Circuit may be attributed to the fact that differen

panels sat in these cases.

Nothing in the Constitution of the United States permits

much less requires, the bussing of school children to achieve

racial balancing. The direction (Alexander v. Board o;

Education, 396 U.S. 19) “‘to operate as unitary school system:

within which no person is to be effectively excluded from any

school because of race or color” forbids the result obtaine¢

below, which in fact excludes several hundred white childrer

from the walk-in schools nearest their homes simply becaus

admitting them there fails to achieve racial balancing within th

entire system. Past discrimination in one direction does no

justify present discrimination in another.

SS

CONCLUSION

The issues are of concern throughout the country and th

lack of answers and guidelines have caused confusion, endles

litigation and inflamed emotions. The answers must be supplie

and supplied now. Amicus urges the Court to set fort

comprehensive guidelines and to hold that racial balance is no

required for a unitary system; that neighborhood schools shoul

be preserved and that education must be the primary concern i

a unitary school system.

Respectfully submitted,

Kenneth W. Cleary

Dye, Dye, Smith, Cleary & Sco’

P. O. Box 2480

Bradenton, Florida 33505

Attorney for the School Board

of Manatee County, Florida

————

CERTIFICATE OF SERVICE

ertify that copies of Amicus Brief of the School

tee County, Florida were served upon each of the

ed below by depositing the same in the United

stage prepaid on this _____ day of

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1970.

Honorable Erwin N. Griswold

Solicitor General of United

States

Department of Justice

Washington, D.C. 20530

_ Honorable Robert Morgan

Attorney General

State of North Carolina

Department of Justice

_ Raleigh, North Carolina

William C. Cramer, M.C.

2165 Rayburn Building

Washington, D. C. 20515

Stephen J. Pollak

Benjamin W. Boley

Richard M. Sharp

734 Fifteenth Street, N.W.

Washington, D. C. 20036

Gerald Mager

General Counsel to the Governor

The Capitol

Tallahassee, Florida

Kenneth W. Cleary