Swann v. Charlotte-Mecklenburg Board of Education

• Citation: 306 F. Supp. 1291
• Decision Date: 15 August 1969
• Docket Number: Civ. A. No. 1974.
• Court: U.S. District Court — Western District of North Carolina
• Parties: James E. SWANN, et al., Plaintiffs, v. The CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al., Defendants.

306 F. Supp. 1291

James E. SWANN, et al., Plaintiffs, v. The CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al., Defendants.

Civ. A. No. 1974.

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

August 15, 1969.

Conrad O. Pearson, Durham, N. C., J. LeVonne Chambers, Adam Stein, James E. Ferguson, II, and James E. Lanning, Charlotte, N. C., Jack Greenberg, James M. Nabrit, III, and Norman Chachkin, New York City, and Gaston H. Gage, and Paul L. Whitfield, Whitfield, McNeely & Echols, Charlotte, N. C., for plaintiffs.

Brock Barkley, William J. Waggoner, Weinstein, Waggoner, Sturges & Odom, Charlotte, N. C., Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., and Andrew A. Vanore, Staff Atty., State of North Carolina, Raleigh, N. C., for defendants.

ORDER

McMILLAN, District Judge.

PRELIMINARY SUMMARY

Pursuant to this court's June 20, 1969 order, 300 F.Supp. 1381, the defendants submitted on July 29, 1969 an amended plan for desegregation of the Charlotte-Mecklenburg schools, including a highly significant policy statement accepting for the first time the Board's affirmative constitutional duty to desegregate students, teachers, principals and staffs "at the earliest possible date." On August 4, 1969, a report was filed in connection with the plan. A hearing was conducted on August 5, 1969. The plan is before the court for approval.

Because the schools must open September 2, and because the Board's plan includes both substantial action and genuine assurance of sustained effort toward prompt compliance with the law of the land, the plan of operation, for 1969-70 only, is approved and as indicated below, the defendants are directed to prepare and file by November 17, 1969, detailed plans and undertakings for completion of the job of desegregating the schools effective in September, 1970.

THE AMENDED PLAN—AND ITS RECEPTION

The plan proposes, among other things, to close seven old all-black inner-city schools and to assign their 3,000 students to various outlying schools, now predominantly white, mostly in high rent districts.

This technique of school closing and reassignment has been employed in dozens of school districts to promote school desegregation. It is not original with the local School Board.

The school closing issue has provoked strident protests from black citizens and from others; evidence showed that an estimated 19,000 names are listed on a petition denouncing the plan as unfair and discriminatory. The signers add their own brand of protest to that of the 21,000 whites who last May (though protesting their acceptance of the principles of desegregation) raised a "silkstocking" community outcry against bus transportation except to schools of individual choice. Another 800 white Paw Creek petitioners have joined in protest against a part of the plan under which some 200 fifth and sixth grade pupils would be assigned to re-opened Woodland, a now unused (and formerly black) school. Comment from people who have not studied the evidence tends to ignore the law—the reason this question is before a court, for decision—and to concentrate on public acceptance or what will make people happy. A correspondent who signs "Puzzled" inquires:

"If the whites don't want it and the blacks don't want it, why do we have to have it?"

The answer is, the Constitution of the United States.

THE CONSTITUTION—THE LAW OF THE LAND—REQUIRES DESEGREGATION OF PUBLIC SCHOOLS

North Carolina reportedly refused to ratify the United States Constitution until the Bill of Rights had been incorporated into it. The Fourteenth Amendment to that Constitution, now part of the Bill of Rights, guarantees to all citizens the "equal protection of laws." In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the Supreme Court held that racial segregation in public schools produces inferior education and morale, restricts opportunity for association, and thus violates the equal protection guaranty of the Constitution and is unlawful. In Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and two other simultaneous unanimous decisions, the Supreme Court held that school boards have the affirmative duty to get rid of dual school systems, to eliminate "black schools" and "white schools," and to operate "just schools." The Court said:

"The burden on a school board today is to come forward with a plan that promises realistically to work and promises realistically to work now." (Emphasis on the word "now" was put in the text by the Supreme Court.)

For years people of this community and all over the south have quoted wistfully the statement in Briggs v. Elliott, D.C., 132 F.Supp. 776 by Judge John J. Parker (who at his death was one of my few remaining heroes) that though the Constitution forbids segregation it does not require integration. Passage of time, and the revelation of conditions which might well have changed Judge Parker's views if he had lived, have left Judge Parker's words as a landmark but no longer a guide. The latest decision on this subject by the Fourth Circuit Court of Appeals (which is the court that first reviews my actions) contains this statement:

"The famous Briggs v. Elliott dictum —adhered to by this court for many years—that the Constitution forbids segregation but does not require integration, (132 F.Supp. 776, E.D.S.C. 1955) is now dead." Hawthorne v. County School Board of Lunenburg County, Virginia, 413 F.2d 53, Fourth Circuit Court of Appeals, July 11, 1969.

"Freedom of choice," as this court has already pointed out, does not legalize a segregated school system. A plan with freedom of choice must be judged by the same standard as a plan without freedom of choice—whether or not the plan desegregates the public schools. The courts are concerned primarily not with the techniques of assigning students or controlling school populations, but with whether those techniques get rid of segregation of children in public schools. The test is pragmatic, not theoretical.

CONTINUED OPERATION OF SEGREGATED PUBLIC SCHOOLS IS UNLAWFUL

The issue is one of law and order. Unless and until the Constitution is amended it is and will be unlawful to operate segregated public schools. Amending the Constitution takes heavy majorities of voters or lawmakers. It is difficult to imagine any majority of Supreme Court, of Congress or of popular vote in favor of changing the Constitution to say that public school pupils may lawfully be kept in separate schools because they are black. A community bent on "law and order" should expect its school board members to obey the United States Constitution, and should encourage them in every move they make toward such compliance. The call for "law and order" in the streets and slums is necessary, but it sounds hollow when it issues from people content with segregated public schools.

The question is not whether people like desegregated public schools, but what the law requires of those who operate them.

THE DUTY TO OBSERVE THE CONSTITUTION AND DESEGREGATE THE SCHOOLS CANNOT BE REDUCED OR AVOIDED BECAUSE OF SOOTHING SAYINGS FROM OTHER GOVERNMENT OFFICIALS NOR OUTCRIES FROM THOSE WHO WANT THE LAW TO GO AWAY

The rights and duties of the parties to this suit are in this court for decision according to law—not according to HEW guidelines or public clamor. The court and the school board are bound by the Constitution. So are the legislative and executive branches of government. No one in Washington or Raleigh or local government is above or beyond the Constitution. None have power to change it except by lawful means. None have or claim the power to interfere with the courts in cases like this one. The malleable HEW "guidelines" put out by the President's administrator for educational affairs, and dubious inferences from statements of other officials, however highly placed, are irrelevant to the constitutional rights of the parties in this case. Also irrelevant are soothing sayings of the Vice President (who has no duty in this area) to black-tie political audiences, and the not-so-soothing sayings of citizens who erroneously talk as if the school segregation issue were a simple matter of political pressure and short-term public opinion. As for the Attorney General of the United States, he has just filed the biggest desegregation suit of all—against the whole state of Georgia! Segregation of children in public schools, whether they be black or white, and regardless of whether they do or don't want to stay apart, is unlawful. As the Supreme Court said in Brown II:

"* * * the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them."

THE SCHOOL BOARD'S NEW PLAN REPRESENTS SUBSTANTIAL PROGRESS

Against this background the Board's new plan is reviewed:

1. The most obvious and constructive element in the plan is that the School Board has reversed its field and has accepted its affirmative constitutional duty to desegregate pupils, teachers, principals and staff members "at the earliest possible date." It has recognized that where people live should not control where they go to school nor the quality of their education, and that transportation may be necessary to comply with the law. It has recognized that easy methods will not do the job; that rezoning of school lines, perhaps wholesale; pairing, grouping or clustering of schools; use of computer technology and all available modern business methods can and must be considered in the discharge of the Board's constitutional duty. This court does not take lightly the Board's promises and the Board's undertaking of its affirmative duty under the Constitution and accepts these assurances at face value. They are, in fact, the conclusions which necessarily follow when any group of women and men of good faith seriously study this problem with knowledge of the facts of the...