# 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%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 402 U.S. 1 ## Text E CO PX Sprame aut, 2 >! 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 weescececeecocoSeSEcoDesooOcODSCOSDoSScOOSOSSCOCO. 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 da alae os o's 6 4 66 0 688 18 oe 8 88 8 4 ae ae ee ee ae ee 5 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 ee 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 zoner Office on Street th Carolina rack Street ‘h Carolina » Chambers 1 Street h Carolina ircle y York son pel Hill Carolina ney General nt of Justice GC. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0266%3A17. Public record. Not legal advice.