
    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.
    Feb. 5, 1970.
    See also D.C., 306 F.Supp. 1299.
    
      J. Levonne Chambers and Adam Stein, Charlotte, N. C., for plaintiffs.
    Brock Barkley, William J. Waggoner, Weinstein, Waggoner, Sturges & Odom, and Benjamin S. Horack, Ervin, Horack & McCartha, Charlotte, N. C., for defendants.
   ORDER

McMILLAN, District Judge.

On December 2, 1969, this court appointed Dr. John A. Finger, Jr., of Providence, Rhode Island, to study the Charlotte-Mecklenburg school system and advise the court how the schools could be desegregated. The defendant school board, by order of December 1, 1969, had been extended a fourth opportunity to submit a plan if they wished. Dr. Finger went to work; the school staff worked with him; and they have produced some extremely useful information and reports, which will be referred to in this order as the Board plan and the Finger plan.

Hearings on the plans were conducted on February 2 and February 5, 1970.

The board plan, prepared by the school staff, relies almost entirely on geographic attendance zones, and is tailored to the Board’s limiting specifications. It leaves many schools segregated. The Finger plan incorporates most of those parts of the Board plan which achieve desegregation in particular districts by re-zoning; however, the Finger plan goes further and produces desegregation of all the schools in the system.

Taken together, the plans provide adequate supplements to a final desegregation order.

The court would like again to express appreciation to Dr. Finger for the intelligence, resourcefulness and tact with which he has pursued his difficult assignment, and to Dr. William Self, Superintendent of the schools, and to his able staff, for the excellent work done by them in their difficult role of helping prepare one plan to comply with what the court believes the law requires, and simultaneously preparing another plan to suit the majority of the School Board who, at last reckoning, still did not appear to accept the court’s order as representing the law of the land.

The court is also grateful to the Board’s outside consultant, Mr. Weil, of Systems Associates, Inc., whose two hundred days of work and whose computer studies formed the building blocks, or points of departure, for much of the work of the others.

Recent appellate court decisions have hammered home the message that sixteen years of “deliberate speed” are long enough to desegregate tax supported schools. On October 29, 1969, in Alexander v. Holmes County, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, the Supreme Court ordered numerous Deep South school districts to be completely desegregated by January 1, 1970; schools in Atlanta, Miami and parts of Chicago have been ordered totally desegregated; the Supreme Court in January ordered February 1, 1970, desegregation of 300,-000 pupils in six Gulf Coast states; the Fourth Circuit Court of Appeals in Nesbit v. Statesville, 418 F.2d 1040 (December 2, 1969), ordered elimination by January 1, 1970, of the racial characteristics of the last black schools in Durham, Reidsville and Statesville, North Carolina; and in Whittenberg v. Greenville, South Carolina, 424 F.2d 195, the Fourth Circuit Court of Appeals, in an opinion by Chief Judge Clement F. Haynsworth, Jr., has just last month ordered the desegregation by February 16, 1970, of the 58,000 students in Judge Haynsworth’s own home town. Judge Robert Martin of Greenville, pursuant to that mandate, on February 2, 1970, ordered all the Greenville schools to be populated by February 16, 1970, on a basis of 80% white and 20% black.

In the Greenville opinion the court said:

“These decisions leave us with no discretion to consider delays in pupil integration until September 1970. Whatever the state of progress in a particular school district and whatever the disruption which will be occasioned by the immediate reassignment of teachers and pupils in mid-year, there remains no judicial discretion to postpone immediate implementation of the constitutional principles as announced in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (Oct. 29, 1969); Carter v. West Feliciana Parish School Bd., 396 U.S. 1032, 90 S.Ct. 611, 24 L.Ed.2d 530 (Jan. 14, 1970).”

These decisions are binding on the United States District Court for the Western District of North Carolina. Unless that were true, the Constitution would mean whatever might be the temporary notion of whichever one of 340-odd federal judges happened to hear the case. This is a matter of law, not anarchy; of constitutional right, not popular sentiment.

The order which follows is not based upon any requirement of “racial balance.” The School Board, after four opportunities and nearly ten months of time, have failed to submit a lawful plan (one which desegregates all the schools). This default on their part leaves the court in the position of being forced to prepare or choose a lawful plan. The fairest way the court knows to deal with this situation was stated clearly in the December 1, 1969 order, as follows:

“In default of any such plan from the school board, the court will start with the thought, originally advanced in the order of April 23, that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others, but to understand that variations from that norm may be unavoidable.”

Therefore, and in accordance with the specific, detailed, numbered guidelines of this court’s order of December 1, 1969, it is ordered:

1. That the defendants discontinue the operation of segregated schools.

2. That the defendants take such action as is necessary to desegregate all the schools — students and faculty.

3. That desegregation of faculty be accomplished, as previously ordered, by assigning faculty (specialized faculty positions excepted) so that the ratio of black and white faculty members of each school shall be approximately the same as the ratio of black and white faculty members throughout the system.

4. That teachers be assigned so that the competence and experience of teachers in formerly or recently black schools will not be inferior to those in the formerly or recently white schools in the system.

5. That no school be operated with an all-black or predominantly black student body.

6. That pupils of all grades be assigned in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students.

7. That transportation be offered on a uniform non-racial basis to all children whose reassignment to any school is necessary to bring about the reduction of segregation, and who live farther from the school to which they are assigned than the Board determines to be walking distance. Estimates of the number of children who may have to be transported have run as high as 10,000 or more. Since the cost to the local system is about $18 or $20 a year per pupil, and the cost to the state in those areas where the state provides transportation funds is about another $18 or $20 a year per pupil, the average cost for transportation is apparently less than $40 per pupil per year. The local school budget is about $45,000,000 a year. It would appear that transporting 10,000 additional children, if that is necessary, and if the defendants had to pay it all, would add less than one per cent to the local cost of operating the schools. The significant point, however, is that cost is not a valid legal reason for continued denial of constitutional rights.

8. That if geographic zones are used in making school assignments, the parts of a zone need not be contiguous.

9. That the defendants maintain a continuing control over the race of children in each school, just as was done for many decades before Brown v. Board of Education, and maintain the racial make-up of each school (including any new and any re-opened schools) to prevent any school from becoming racially identifiable.

10. That “freedom of choice” or “freedom of transfer” may not be allowed by the Board if the effect of any given transfer or group of transfers is to increase the degree of segregation in the school from which the transfer is requested or in the school to which the transfer is desired.

11. That the Board retain its statutory power and duty to make assignments of pupils for administrative reasons, with or without requests from parents. Administrative transfers shall not be made if the result of such transfers is to restore or increase the degree of segregation in either the transferor or the transferee school.

12. That if transfers are sought on grounds of “hardship,” race will not be a valid basis upon which to demonstrate “hardship.”

13. That the Board adopt and implement a continuing program, computerized or otherwise, of assigning pupils and teachers during the school year as well as at the start of each year for the conscious purpose of maintaining each school and each faculty in a condition of desegregation.

14. That the defendants report to the court weekly between now and May 15, 1970, reporting progress made in compliance with this order; and that they report thereafter on July 15, August 15, September 15 and November 1, 1970, and on February 1 and May 1, 1971.

15. That the internal operation of each school, and the assignment and management of school employees, of course be conducted on a non-racial, nondiseriminatory basis.

16. The duty imposed by the law and by this order is the desegregation of schools and the maintenance of that condition. The plans discussed in this order, whether prepared by Board and staff or by outside consultants, such as computer expert, Mr. John W. Weil, or Dr. John A Finger, Jr., are illustrations of means or partial means to that end. The defendants are encouraged to use their full “know-how” and resources to attain the results above described, and thus to achieve the constitutional end by any means at their disposal. The test is not the method or plan, but the results.

17. The choice or approval or partial approval of any proposed desegregation plan is subject to all the requirements and restrictions of the preceding sixteen paragraphs, as well as to any later requirements or restrictions set out in this order.

18. Subject to the above, the Board’s pupil assignment plan for senior high school pupils is approved, with one exception. This exception is that black students, some 300 in number, should be assigned from map grids 294D, 295C, 295D, and 318A, to attend Independence High School.

19. Although the Board junior high school plan is inferior in design and results to Dr. Finger’s plan, it is a purely “home grown” product and the court would like to approve it, if it can be brought into compliance with law by desegregating Piedmont Junior High School, and by adding transportation as above indicated, and by increasing the black attendance at several outlying schools. The Board may if it wishes consider (1) re-zoning; (2) two-way transporting of pupils between outlying schools and Piedmont; (3) closing Piedmont and assigning the pupils to Albemarle Road, Carmel, McClintock and Quail Hollow. Unless the court has been notified in writing by noon of February 9, 1970, of an affirmative decision adopting one of these choices by formal Board action, the junior high schools are directed to be desegregated according to Dr. Finger’s plan, as illustrated by exhibits E and F.

20. The Board’s plan for elementary schools, illustrated by exhibits G and H, cannot be approved because (1) it retains nine schools 83% to 100% black, serving over half the black elementary pupils, and (2) it leaves approximately half the 31,500 white elementary students attending schools that are 86% to 100% white; and (3) it promises to provide little or no transportation in aid of desegregation, even though the plan’s zones in some cases are apparently five or six miles long. The Board plan for elementarles openly rejects the duty to eliminate all the black schools.

The Finger plan uses many of the same basic attendance lines as the Board plan; however, it does not stop short of the constitutional requirements, and by pairing and clustering groups of schools it achieves full desegregation of the elementary schools. The school staff worked out the details of this plan and are familiar with it. Its attendance zones are illustrated on the map, exhibit I; its elementary school populations are listed in exhibit J; and the pairing and grouping of the outlying and inner-city schools, grade by grade, are shown in detail on exhibit K. Subject to the qualifications previously stated, the Board are directed to follow the Finger plan with reference to elementary schools.

21. THE TIME TABLE: Deadlines to complete various phases of the program required in this order are as follows:

SENIOR HIGH SCHOOLS. — Seniors may remain in their present schools until the end of the school year; the Board may make any decision they deem wise about allowing seniors to transfer before graduation to schools where their race will be in the minority. Eleventh and tenth graders will be transferred to their new schools not later than the 4th day of May, 1970.
JUNIOR HIGH SCHOOLS (Grades 7, 8, 9). — Complete desegregation shall be accomplished by the 4th day of May, 1970.
ELEMENTARY SCHOOLS (Grades 1 through 6). — Complete desegregation shall be accomplished not later than the 1st day of April, 1970.
FACULTY. — Complete desegregation of the various faculties shall be accomplished by the various times set out above for desegregation of the student bodies.

22. MODIFICATIONS. — The intention of this order is to put on the Board the full duty to bring the schools into compliance with the Constitution as above outlined, but to leave maximum discretion in the Board to choose methods that will accomplish the required result. However, it is directed that leave of court be obtained before making any material departure from any specific requirement set out herein. The court will undertake to rule promptly on any such requests for deviation from prescribed methods.

23. APPEAL. — The court claims no infallibility and does not seek to prevent appeal from all or any part of this order, and will allow the making of any record needed to present on appeal any contention the parties desire to make, and will do what this court can to expedite such appeal. However, in accordance with Whittenberg v. Green-ville, swpra, this order will not be stayed pending appeal, and immediate steps to begin compliance are directed.

24. All evidence in the cause and all findings and conclusions in previous orders which support or tend to support this order are relied upon in support of this order.

25. Jurisdiction of this cause is retained for further orders. 
      
      . The words “reassignment to” were inserted in lieu of the former words “attendance in,” by an amendment to the order filed on March 3, 1970.
     
      
      . The following are exhibits to this order:
      A. The Board’s map of proposed senior high school attendance zones.
      B. The Board’s list of proposed senior high school populations.
      C. The Board’s map of proposed junior high school attendance zones.
      D. The Board’s list of proposed junior high school populations.
      E. Dr. Finger’s map of proposed junior high school attendance zones.
      F. Dr. Finger’s list of proposed junior high school populations.
      G. The Board’s map of proposed elementary school attendance zones.
      H. The Board’s list of proposed elementary school populations.
      I. Dr. Finger’s map of proposed elementary school attendance zones.
      J. Dr. Finger’s list of proposed elementary school populations.
      K. Dr. Finger’s list of pairing and grouping of elementary schools and grades.
     