Martin v. Charlotte-Mecklenburg Bd. of Ed.

• Decision Date: 10 August 1979
• Docket Number: No. C-C-78-220.,C-C-78-220.
• Citation: 475 F. Supp. 1318
• Court: U.S. District Court — Western District of North Carolina
• Parties: George MARTIN et al., Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, Defendant, and Carrie L. Graves et al., Intervening Defendants.

475 F. Supp. 1318

George MARTIN et al., Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, Defendant and Carrie L. Graves et al., Intervening Defendants.

No. C-C-78-220.

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

August 10, 1979.

Whiteford S. Blakeney, Blakeney, Alexander & Machen, Charlotte, N. C., for plaintiffs.

William W. Sturges and Hugh B. Campbell, Jr., Weinstein, Sturges, Odom, Bigger, Jonas & Campbell, P.A., Charlotte, N. C., for defendant Charlotte-Mecklenburg Board of Education.

Julius LeVonne Chambers, Chambers, Stein, Ferguson & Becton, Charlotte, N. C., for added and intervening defendants.

McMILLAN, District Judge.

                                                                                            Page
                                                                                            No
                  I. SUMMARY OF DECISION .................................................  1320
                 II. THE THEORY OF THE PLAINTIFFS ........................................  1322
                III. RELEVANT HISTORY OF THE CHARLOTTE-MECKLENBURG SCHOOLS—A
                     GENERAL SUMMARY .....................................................  1324
                 IV. HISTORY OF CHARLOTTE-MECKLENBURG SCHOOLS (CONTINUED); MORE
                     DETAIL ON THE FOUR ASPECTS OF PUPIL ASSIGNMENT WHICH ARE
                     PRINCIPALLY IN QUESTION HERE ........................................  1328
                     A. CONSTRUCTION, LOCATION AND CLOSING OF SCHOOL BUILDINGS
                        CONTINUE TO PROMOTE SEGREGATION ..................................  1329
                     B. PLACEMENT OF KINDERGARTEN AND ELEMENTARY SCHOOL GRADES
                        REMAINS DISCRIMINATORY AND UNFAIR TO THE SMALLEST BLACK
                        CHILDREN .........................................................  1332
                     C. FAILURE TO MONITOR THE THOUSANDS OF PUPIL TRANSFERS EACH
                        YEAR, IN THE CONTEXT OF THE "FEEDER PLAN" AND LONG-STANDING
                        HOUSING SEGREGATION, TENDS TO PROMOTE SEGREGATION IN
                        THE SCHOOLS ......................................................  1335
                     D. DISCRIMINATORY BURDENS OF DESEGREGATION REMAIN UPON THE
                        BLACK CHILDREN ...................................................  1338
                  V. THE 1978 PUPIL ASSIGNMENT PLAN SHOULD BE UPHELD .....................  1340
                     A. THERE HAS BEEN NO PRIOR COMPLETE IMPLEMENTATION OF A
                        JUDICIAL REMEDY RELATING TO PUPIL ASSIGNMENT .....................  1340
                

                     B. THE CONTINUING PROBLEMS DEALT WITH BY THE 1978 PLAN ARE
                        WITHIN THE SUBSTANTIAL, IF NOT THE EXCLUSIVE, CONTROL OF
                        THE SCHOOL BOARD .................................................  1340
                     C. THE 1974 PLAN AND THE ORDER APPROVING IT SPECIFICALLY CONTEMPLATED
                        THE LATER APPRAISAL AND THE MODIFICATIONS WHICH
                        WERE MADE IN 1978 ................................................  1340
                     D. THE 1978 PLAN AND CHANGES ARE ALSO BASED UPON AN INDEPENDENT
                        COMMITMENT OF THE SCHOOL BOARD AS A MATTER OF
                        PUBLIC POLICY TO MAINTAIN A DESEGREGRATED SCHOOL SYSTEM
                        WITHOUT REGARD TO COURT INTERVENTION .............................  1342
                     E. RACE IS ONLY ONE OF SEVERAL SIGNIFICANT FACTORS CONSIDERED
                        BY THE BOARD AND STAFF IN PUPIL ASSIGNMENT .......................  1343
                     F. THE BOARD HAD LAWFUL DISCRETION TO MAKE THE 1978 ASSIGNMENTS
                        IT DID MAKE ......................................................  1344
                     G. PLAINTIFFS HAVE SHOWN NO INJURIES JUSTIFYING RELIEF ..............  1345
                 VI. CONCLUSION: THE CONTINUING PROBLEMS THAT REMAIN SHOULD BE
                     LEFT IN THE HANDS OF THE SCHOOL BOARD ...............................  1346
                VII. ORDER ...............................................................  1347
                

I. SUMMARY OF DECISION

Plaintiffs, a group of parents and children, brought this suit against the Charlotte-Mecklenburg, North Carolina, Board of Education, seeking an order prohibiting the Board from assigning pupils pursuant to the Board's 1978 pupil assignment plan. Under that plan, 2,050 white and 2,775 black children (out of approximately 78,000) were reassigned. One reason for many of these transfers was to prevent re-segregation of certain schools. Plaintiffs allege that race was the significant element, or at least a major element, in those assignments; that racial discrimination had ceased with the adoption and implementation of the pupil assignment plan of 1974; and that race could not be lawfully considered for any purpose thereafter.

The pupil assignment plan under attack was adopted pursuant to orders of this court originally affirmed by Swann v. Charlotte-Mecklenburg, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) and orders later based upon that decision, and in accordance with independent policy decisions by the School Board itself that it would maintain and operate a desegregated school system. In arriving at those decisions the School Board expressly considered numerous policy matters including quality education for all students (the "main goal"); desegregated schools as a necessary part of that goal; grade structures and specialized schools appropriate to educational needs; the lack of planning among the "feeder areas" of the system; the need for coordination with other community planning agencies; the problems of those schools whose student bodies are almost all economically deprived; parental preferences; student safety; the desire to recognize "neighborhood" in school assignments when possible; the most economical use of school property and facilities, including transportation; and the Board's educational policy that regardless of what previous Boards might have done, and independent of court orders, this Board considered it educationally desirable to have the races represented in the various schools in the proportions produced by the 1978 plan.

The School Board vigorously defended its actions, ably asserting its contentions based upon numerous essential facts including those briefly stated above. It pointed out that no student is denied the opportunity to go to school in this community because of race or any other invidious classification; that the Board is making a serious effort to provide substantially equal opportunity at all schools; that these facts are materially different from Bakke because unlike Bakke nobody has been turned away from the schoolhouse door; and that

"only when a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as constitutionally suspect."

University of California Regents v. Bakke, 438 U.S. 265, 305, 98 S.Ct. 2733, 2756, 57 L.Ed.2d 750 (1978).

Carrie Graves and others sought permission to intervene and were allowed to intervene as defendants on behalf of themselves and a class of black pupils attending or eligible to attend the Charlotte-Mecklenburg schools. They are represented by the attorneys who represented Swann and the other plaintiffs in the original Swann case. They oppose the contentions of plaintiffs here.

This is the third suit filed by the same lawyers seeking to nullify Swann. The first such case, Moore, et al. v. Charlotte-Mecklenburg Board of Education, was filed February 27, 1970, attacking the court's rulings in Swann because North Carolina had a "no bussing" law. A few weeks later a three-judge court held unconstitutional the North Carolina statute prohibiting "bussing" and assignment of pupils by race. On April 20, 1971, contemporaneously with its principal Swann decision, the United States Supreme Court held North Carolina's "antibussing law" unconstitutional, North Carolina State Board of Education v. Swann, et al., 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586, and dismissed the Moore case, Moore, et al. v. Charlotte-Mecklenburg Board of Education, et al., 402 U.S. 47, 91 S.Ct. 1292, 28 L.Ed.2d 590 (April 20, 1971). The second case, Cuthbertson, et al. v. Charlotte-Mecklenburg Board of Education, was filed on March 29, 1973, and was dismissed by order dated July 30, 1975. It was appealed to the Fourth Circuit Court of Appeals, which dismissed without opinion on March 18, 1976 (535 F.2d 1249). On October 4, 1976, the Supreme Court denied petition for certiorari. 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95. The factual contentions in that case were much the same as those in the case at bar, and the issues are much the same as those decided in the original Swann case. Res judicata, laches and collateral estoppel are pleaded, perhaps with merit, by the intervening defendants.

However, since these plaintiffs today contend that any consideration of race in pupil assignment in the Charlotte-Mecklenburg Schools is unlawful under Bakke, supra, and under Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), it becomes the duty of the court to consider plaintiffs' claims in light of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Swann, Pasadena and Bakke. There is no way to do this without a factual survey of the Charlotte-Mecklenburg schools and how they got where they are, and why the Board considers race, among other factors, in pupil assignment.

For that purpose, two hearings were conducted and much research was done. The first hearing was a preliminary conference with counsel, and the second was a two-day evidentiary hearing. Few plaintiffs appeared; no plaintiff testified; plaintiffs offered no live evidence but offered and relied upon a few written exhibits and admissions from the pleadings. Defendant School Board and the intervening "Swann" defendants (Carrie Graves and others) offered exhibits and lengthy testimony. I have also re-examined and considered the hundreds of pages of findings of fact and orders from the original Swann case, most of which are reported in the Federal Supplement and Supreme Court reports.

From that survey and from Brown, Swann, Pasadena and Bakke, I have concluded that the challenged actions of the School Board are thoroughly within constitutional limits and...