Swann v. Charlotte-Mecklenburg Board of Education

• Citation: 312 F. Supp. 503
• Decision Date: 28 April 1970
• Docket Number: Civ. No. 1974,2631.
• Court: U.S. District Court — Western District of North Carolina
• Parties: James E. SWANN et al., Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, a public body corporate, William E. Poe, Henderson Belk, Dan Hood, Ben F. Huntley, Betsey Kelly, Coleman W. Kerry, Jr., Julia Maulden, Sam McNinch, III, Carlton G. Watkins, the North Carolina State Board of Education, a public body corporate, and Dr. A. Craig Phillips, Superintendent of Public Instruction of the State of North Carolina, Defendants, Honorable Robert W. Scott, Governor of the State of North Carolina, Honorable A. C. Davis, Controller of the State Department of Public Instruction, Honorable William K. McLean, Judge of the Superior Court of Mecklenburg County, Tom B. Harris, G. Don Roberson, A. Breece Breland, James M. Postell, William E. Rorie, Jr., Chalmers R. Carr, Robert T. Wilson, and the Concerned Parents Association, an unincorporated association in Mecklenburg County, James Carson and William H. Booe, Additional Parties-Defendant. Mrs. Robert Lee MOORE et al., Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION and William C. Self, Superintendent of Charlotte-Mecklenburg Public Schools, Defendants.

312 F. Supp. 503

James E. SWANN et al., Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, a public body corporate, William E. Poe, Henderson Belk, Dan Hood, Ben F. Huntley, Betsey Kelly, Coleman W. Kerry, Jr., Julia Maulden, Sam McNinch, III, Carlton G. Watkins, the North Carolina State Board of Education, a public body corporate, and Dr. A. Craig Phillips, Superintendent of Public Instruction of the State of North Carolina, Defendants, Honorable Robert W. Scott, Governor of the State of North Carolina, Honorable A. C. Davis, Controller of the State Department of Public Instruction, Honorable William K. McLean, Judge of the Superior Court of Mecklenburg County, Tom B. Harris, G. Don Roberson, A. Breece Breland, James M. Postell, William E. Rorie, Jr., Chalmers R. Carr, Robert T. Wilson, and the Concerned Parents Association, an unincorporated association in Mecklenburg County, James Carson and William H. Booe, Additional Parties-Defendant.

Mrs. Robert Lee MOORE et al., Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION and William C. Self, Superintendent of Charlotte-Mecklenburg Public Schools, Defendants.

Civ. Nos. 1974, 2631.

United States District Court, W. D. North Carolina, Charlotte Division.

Heard March 24, 1970.

Decided April 28, 1970.

J. LeVonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., and James M. Nabrit, III, New York City, for plaintiffs James E. Swann and others.

William J. Waggoner, Weinstein, Waggoner, Sturges, Odom & Bigger and Benjamin Horack, Charlotte, N. C., for defendants Charlotte-Mecklenburg Bd. of Ed. and others.

Ralph Moody, Deputy Atty. Gen., and Andrew A. Vanore, Jr., Asst. Atty. Gen., for State defendants and additional parties-defendant.

William H. Booe and Whiteford S. Blakeney, Charlotte, N. C., for other additional parties-defendant and plaintiffs Mrs. Robert Lee Moore and others.

Before CRAVEN and BUTZNER, Circuit Judges, and McMILLAN, District Judge.

CRAVEN, Circuit Judge:

This three-judge district court was convened pursuant to 28 U.S.C. § 2281 et seq. (1964), to consider a single aspect of the above-captioned case: the constitutionality and impact of a state statute, N.C.Gen.Stat. § 115-176.1 (Supp.1969), known as the antibussing law, on this suit brought to desegregate the Charlotte-Mecklenburg school system. We hold a portion of N.C.Gen.Stat. § 115-176.1 unconstitutional because it may interfere with the school board's performance of its affirmative constitutional duty under the equal protection clause of the Fourteenth Amendment.

I.

On February 5, 1970, 311 F.Supp. 265, the district court entered an order requiring the Charlotte-Mecklenburg School Board to desegregate its school system according to a court-approved plan. Implementation of the plan could require that 13,300 additional children be bussed.¹ This, in turn, could require up to 138 additional school buses.²

Prior to the February 5 order, certain parties filed a suit, entitled Tom B. Harris, G. Don Roberson, et al. v. William C. Self, Superintendent of Charlotte-Mecklenburg Schools and Charlotte-Mecklenburg Board of Education, in the Superior Court of Mecklenburg County, a court of general jurisdiction of the State of North Carolina. Part of the relief sought was an order enjoining the expenditure of public funds to purchase, rent or operate any motor vehicle for the purpose of transporting students pursuant to a desegregation plan. A temporary restraining order granting this relief was entered by the state court, and, in response, the Swann plaintiffs moved the district court to add the state plaintiffs as additional parties defendant in the federal suit, to dissolve the state restraining order, and to direct all parties to cease interfering with the federal court mandates. Because it appeared that the constitutionality of N.C.Gen. Stat. § 115-176.1 (Supp.1969) would be in question, the district court requested designation of this three-judge court on February 19, 1970. On February 25, 1970, the district judge granted the motion to add additional parties. Meanwhile, on February 22, 1970, another state suit, styled Mrs. Robert Lee Moore, et al. v. Charlotte-Mecklenburg Board of Education and William C. Self, Superintendent of Charlotte-Mecklenburg Schools, was begun. In this second state suit, the plaintiffs also requested an order enjoining the school board and superintendent from implementing the plan ordered by the district court on February 5. The state court judge issued a temporary restraining order embodying the relief requested, and on February 26, 1970, the Swann plaintiffs moved to add Mrs. Moore, et al., as additional parties defendant in the federal suit. On the same day, the state defendants filed a petition for removal of the Moore suit to federal court. On March 23, 1970, the district judge requested a three-judge court in the removed Moore case, and this panel was designated to hear the matter. All the cases were consolidated for hearing, and the court heard argument by all parties on March 24, 1970.

II.

N.C.Gen.Stat. § 115-176.1 (Supp.1969) reads:

Assignment of pupils based on race, creed, color or national origin prohibited.—No person shall be refused admission into or be excluded from any public school in this State on account of race, creed, color or national origin. No school attendance district or zone shall be drawn for the purpose of segregating persons of various races, creeds, colors or national origins from the community.

Where administrative units have divided the geographic area into attendance districts or zones, pupils shall be assigned to schools within such attendance districts; provided, however, that the board of education of an administrative unit may assign any pupil to a school outside of such attendance district or zone in order that such pupil may attend a school of a specialized kind including but not limited to a vocational school or school operated for, or operating programs for, pupils mentally or physically handicapped, or for any other reason which the board of education in its sole discretion deems sufficient. No student shall be assigned or compelled to attend any school on account of race, creed, color or national origin, or for the purpose of creating a balance or ratio of race, religion or national origins. Involuntary bussing of students in contravention of this article is prohibited, and public funds shall not be used for any such bussing.

The provisions of this article shall not apply to a temporary assignment due to the unsuitability of a school for its intended purpose nor to any assignment or transfer necessitated by overcrowded conditions or other circumstances which, in the sole discretion of the school board, require assignment or reassignment.

The provisions of this article shall not apply to an application for the assignment or reassignment by the parent, guardian or person standing in loco parentis of any pupil or to any assignment made pursuant to a choice made by any pupil who is eligible to make such choice pursuant to the provisions of a freedom of choice plan voluntarily adopted by the board of education of an administrative unit.

It is urged upon us that the statute is far from clear and may reasonably be interpreted several different ways.

(A) Plaintiffs read the statute to mean that the school board is prevented from complying with its duty under the Fourteenth Amendment to establish a unitary school system. See, e. g., Green v. County School Bd. of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In support of this contention, plaintiffs argue that the North Carolina General Assembly passed § 115-176.1 in response to an April 23, 1969, district court order, which required the school board to submit a plan to desegregate the Charlotte schools for the 1969-70 school year. Under plaintiffs' interpretation of the statute, the board is denied all desegregation tools except nongerrymandered geographic zoning and freedom of choice. Implicit in this, of course, is the suggestion that zoning and freedom of choice will be ineffective in the Charlotte context to disestablish the asserted duality of the present system.

(B) The North Carolina Attorney General argues that the statute was passed to preserve the neighborhood school concept. Under his interpretation, the statute prohibits assignment and bussing inconsistent with the neighborhood school concept. Thus, to disestablish a dual system the district court could, consistent with the statute, only order the board to geographically zone the attendance areas so that, as nearly as possible, each student would be assigned to the school nearest his home regardless of his race. Implicit in this argument is that any school system is per se unitary if it is zoned according to neighborhood patterns that are not the result of officially sanctioned racial discrimination. Although the Attorney General emphasizes the expression of state policy by the Legislature in favor of the neighborhood school concept, he recognizes, of course, that the statute also permits freedom of choice if a school board voluntarily adopts such a plan. Thus, the plaintiffs and the Attorney General read the statute in much the same way: that it limits lawful methods of accomplishing desegregation to nongerrymandered geographic zoning and freedom of choice.

(C) The school board's interpretation of the statute is more ingenious. The board concedes that the statute prohibits assignment according to race, assignment to achieve racial balance, and involuntary bussing for either of these purposes, but contends that the facial prohibitions of the statute only apply to prevent a school board from doing more than necessary to attain a unitary system. The argument is that since the statute only begins to operate once a unitary system has been established, it in no way interferes with the board's constitutional duty to desegregrate the schools. Counsel goes on to...