404 U.S. 1221 (1971), A-233, Winston-Salem/Forsyth County Board of Education v. Scott
|Docket Nº:||No. A-233 (71-274)|
|Citation:||404 U.S. 1221, 92 S.Ct. 1236, 31 L.Ed.2d 441|
|Party Name:||Winston-Salem/Forsyth County Board of Education v. Scott|
|Case Date:||August 31, 1971|
|Court:||United States Supreme Court|
ON APPLICATION TO STAY ORDER OF COURT OF APPEALS
PENDING WRIT OF CERTIORARI
Following the decision in Swann v. Board of Education, 402 U.S. 1, the Court of Appeals remanded this school desegregation case to the District Court with instructions to obtain a new plan from the School Board to give effect to Swann. The Board, considering itself required to do so, submitted, under protest, a revised plan designed "to achieve a racial balance" throughout the system. On July 26, 1971, the District Court accepted the plan for the school year commencing August 30, 1971. On August 23 the Board applied for the instant stay, to which response was received on August 26. The Board has stated, as to travel time, merely that the "average time" of travel is one hour. The stay is denied as, on this inadequate record, it cannot be determined with assurance whether the lower courts correctly read Swann's holdings negating any constitutional requirements of racial balance or racial quotas and suggesting limits for student transportation.
See: 444 F.2d 99.
BURGER, J., lead opinion
MR. CHIEF JUSTICE BURGER, Circuit Justice.
The Board of Education of the Forsyth County, North Carolina, school system has applied for a stay of a decision of the United States Court of Appeals for the Fourth Circuit, dated June 10, 1971, and subsequent orders of the United States District Court for the Middle District of North Carolina entered pursuant thereto, pending disposition of the Board's petition for writ of certiorari to review the decision of the Court of Appeals. The operative order of the District Court is dated July 26, 1971; it adopts a plan for pupil assignment designed to desegregate the public schools of Forsyth County.
The affected schools were already scheduled to open Monday, August 30.
The application for a stay was filed August 23, 1971, and the response thereto on August 26, 1971, making that date the earliest possible date for this Court or a Justice to act on the stay.
The background is of some importance.
Respondents, who are Negro pupils and parents in the school system, commenced action alleging that the School Board was operating a dual school system, and seeking appropriate relief. The school system embraces both rural and urban area in a county school system. The District Court found that, in December, 1969 there, were 67 schools in the system with approximately 50,000 students. The total student population was 72.5% white and 27.5% Negro. Of the schools, 15 were all-Negro and seven were all-white. Of the remaining schools, 31 had less than 5% of the minority race. The school system was operated under a geographical attendance zone system, with freedom of choice transfer provisions for all students regardless of race.
Prior to this Court's holding in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), the plaintiffs submitted a plan devised by their consultant, Dr. Larsen; it was designed to achieve as closely as possible a mathematical racial balance in all of the schools of the system equal to that in the system as a whole. It employed satellite zoning and extensive cross-busing. The District Court rejected the plan as not constitutionally required and unduly burdensome.
The School Board then submitted its plan for the 1970-1971 school year to the court for approval. It retained geographic zoning and freedom of choice transfer provisions, but with certain modifications allowing priority to majority-to-minority transfers and increasing the racial "balance" of several schools. The District
Court in 1970 approved the Board's plan, subject to alterations which prevented minority-to-majority transfers, made changes affecting three attendance zones, and added a requirement that the Board create "innovative" programs designed to increase racial contact of students.
In rejecting the Larsen plan and approving the modified Board plan, the District Court found that the boundaries of the attendance zones had been drawn in good faith and without regard to racial considerations, and to ensure that, so far as possible, pupils attended the schools nearest their home, taking into account physical barriers, boundaries, and obstacles that might endanger children in the course of reaching their schools. The District Court at that time [92 S.Ct. 1238] was of the view that the "neighborhood" school concept could not be the basis of assignment if residence in a neighborhood was denied or compelled because of race, but went on to find that the racial concentration of Negroes was not caused by public or private discrimination or state action, but by economic factors and the desire of Negroes to live in their own neighborhoods, rather than in predominately white neighborhoods...
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