Swann v. Charlotte-Mecklenburg Bd. of Educ.

• Decision Date: 26 May 1970
• Docket Number: 14518.,No. 14517,14517
• Citation: 431 F.2d 138
• Parties: James E. SWANN et al., Appellees and Cross-Appellants, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al., Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

431 F.2d 138 (1970)

James E. SWANN et al., Appellees and Cross-Appellants, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al., Appellants and Cross-Appellees.

Nos. 14517, 14518.

United States Court of Appeals, Fourth Circuit.

Argued April 9, 1970.

Decided May 26, 1970.

Certiorari Granted June 29, 1970.

Certiorari Granted October 6, 1970.

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William J. Waggoner and Benjamin S. Horack, Charlotte, N. C. (Ervin, Horack & McCartha; and Weinstein, Waggoner, Sturges, Odom & Bigger, Charlotte, N. C., on brief) for appellants and cross-appellees.

J. LeVonne Chambers, Charlotte, N. C. (Adam Stein and Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., Jack Greenberg, James M. Nabrit, III, New York City, and Conrad O. Pearson, Durham, N. C., on brief), for appellees and cross-appellants.

David L. Norman, Deputy Asst. Atty. Gen. of the U. S. (Jerris Leonard, Asst. Atty. Gen., Brian K. Landsberg and David D. Gregory, Attys., Dept. of Justice, and Keith S. Snyder, U. S. Atty. for the Western District of N. C., on brief) for the United States as amicus curiae.

Stephen J. Pollak, Washington, D. C. (Richard M. Sharp, Shea & Gardner, and David Rubin, Washington, D. C., on brief) for The National Education Association as amicus curiae.

William C. Cramer, M. C., St. Petersburg, Fla., amicus curiae.

Gerald Mager, for Claude R. Kirk, Jr., Governor of Florida, amicus curiae.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER and BUTZNER, Circuit Judges, sitting en banc.^*

Certiorari Granted June 29, 1970. See 90 S.Ct. 2247.

Certiorari Granted October 6, 1970. See 91 S.Ct. 10.

BUTZNER, Circuit Judge:

The Charlotte-Mecklenburg School District appealed from an order of the district court requiring the faculty and student body of every school in the system to be racially mixed. We approve the provisions of the order dealing with the faculties of all schools¹ and the assignment of pupils to high schools and junior high schools, but we vacate the order and remand the case for further consideration of the assignment of pupils attending elementary schools. We recognize, of course, that a change in the elementary schools may require some modification of the junior and senior high school plans, and our remand is not intended to preclude this.

I.

The Charlotte-Mecklenburg school system serves a population of over 600,000 people in a combined city and county area of 550 square miles. With 84,500 pupils attending 106 schools, it ranks as the nation's 43rd largest school district. In Swann v. Charlotte-Mecklenburg Bd. of Ed., 369 F.2d 29 (4th Cir. 1966), we approved a desegregation plan based on geographic zoning with a free transfer provision. However, this plan did not eliminate the dual system of schools. The district court found that during the 1969-70 school year, some 16,000 black pupils, out of a total of 24,700, were attending 25 predominantly black schools, that faculties had not been integrated, and that other administrative practices, including a free transfer plan, tended to perpetuate segregation.

Notwithstanding our 1965 approval of the school board's plan, the district court properly held that the board was impermissibly operating a dual system of schools in the light of subsequent decisions of the Supreme Court, Green v. County School Bd. of New Kent County, 391 U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), Monroe v. Bd. of Com'rs, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), and Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

The district judge also found that residential patterns leading to segregation in the schools resulted in part from federal, state, and local governmental action. These findings are supported by the evidence and we accept them under familiar principles of appellate review. The district judge pointed out that black residences are concentrated in the northwest quadrant of Charlotte as a result of both public and private action. North Carolina courts, in common with many courts elsewhere, enforced racially restrictive covenants on real property² until Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), prohibited this discriminatory practice. Presently the city zoning ordinances differentiate between black and white residential areas. Zones for black areas permit dense occupancy, while most white areas are zoned for restricted land usage. The district judge also found that urban renewal projects, supported by heavy federal financing and the active participation of local government, contributed to the city's racially segregated housing patterns. The school board, for its part, located schools in black residential areas and fixed the size of the schools to accommodate the needs of immediate neighborhoods. Predominantly black schools were the inevitable result. The interplay of these policies on both residential and educational segregation previously has been recognized by this and other courts.³ The fact that similar forces operate in cities throughout the nation under the mask of de facto segregation provides no justification for allowing us to ignore the part that government plays in creating segregated neighborhood schools.

The disparity in the number of black and white pupils the Charlotte-Mecklenburg School Board busses to predominantly black and white schools illustrates how coupling residential patterns with the location of schools creates segregated schools. All pupils are eligible to ride school buses if they live farther than 1½ miles from the schools to which they are assigned. Overall statistics show that about one-half of the pupils entitled to transportation ride school buses. Only 541 pupils were bussed in October 1969 to predominantly black schools, which had a total enrollment of over 17,000. In contrast, 8 schools located outside the black residential area have in the aggregate only 96 students living within 1½ miles. These schools have a total enrollment of about 12,184 pupils, of whom 5,349 ride school buses.

II.

The school board on its own initiative, or at the direction of the district court, undertook or proposed a number of reforms in an effort to create a unitary school system. It closed 7 schools and reassigned the pupils primarily to increase racial mixing. It drastically gerrymandered school zones to promote desegregation. It created a single athletic league without distinction between white and black schools or athletes, and at its urging, black and white PTA councils were merged into a single organization. It eliminated a school bus system that operated on a racial basis, and established nondiscriminatory practices in other facets of the school system. It modified its free transfer plan to prevent resegregration, and it provided for integration of the faculty and administrative staff.

The district court, after a painstaking analysis of the board's proposals and the relevant authorities, disapproved the board's final plan, primarily because it left ten schools nearly all black. In reaching this decision, the district court held that the board must integrate the student body of every school to convert from a dual system of schools, which had been established by state action, to a unitary system.

The necessity of dealing with segregation that exists because governmental policies foster segregated neighborhood schools is not confined to the Charlotte-Mecklenburg School District. Similar segregation occurs in many other cities throughout the nation, and constitutional principles dealing with it should be applied nationally. The solution is not free from difficulty. It is now well settled that school boards operating dual systems have an affirmative duty "to convert to a unitary school system in which racial discrimination would be eliminated root and branch." Green v. School Bd. of New Kent County, 391 U.S. 430, 437, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). Recently the Supreme Court defined a unitary school system as one "within which no person is to be effectively excluded from any school because of race or color." Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 20, 90 S.Ct. 29, 30, 24 L.Ed.2d 19 (1969). This definition, as the Chief Justice noted in Northcross v. Board of Ed. of Memphis, 397 U.S. 232, 90 S.Ct. 891, 893, 25 L.Ed.2d 246 (1970), leaves open practical problems, "including whether, as a constitutional matter, any particular racial balance must be achieved in the schools; to what extent school districts and zones may or must be altered as a constitutional matter; to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court."

Several of these issues arise in this case. To resolve them, we hold: first, that not every school in a unitary school system need be integrated; second, nevertheless, school boards must use all reasonable means to integrate the schools in their jurisdiction; and third, if black residential areas are so large that not all schools can be integrated by using reasonable means, school boards must take further steps to assure that pupils are not excluded from integrated schools on the basis of race. Special classes, functions, and programs on an integrated basis should be made available to pupils in the black schools. The board should freely allow majority to minority transfers and provide transportation by bus or common carrier so individual students can leave the black schools. And pupils who are assigned to black schools for a portion of their school careers should be assigned to integrated schools as they progress from one school to another.

We adopted the test of reasonableness — instead of one that calls for absolutes — because it has proved to be a reliable guide in other areas of the law. Furthermore, the standard of reason provides a test for unitary school systems that can be used in both rural and metropolitan districts. All schools in towns, small...