Swann v. Charlotte-Mecklenburg Board of Education

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) was an important United States Supreme Court case dealing with the busing of students to promote integration in public schools. The Court held that busing was an appropriate remedy for the perceived problem of racial imbalance among schools, even where the imbalance resulted from the selection of students based on geographic proximity to the school, rather than from deliberate assignment based on race. This was done to ensure the schools would be "properly" integrated and that all students would receive equal educational opportunities regardless of their race.

The History of Desegregation

In Brown v. Board of Education in 1954 the Warren Court ruled that school segregation was unconstitutional. One year later, in Brown II, enforcement of this principle was given to district courts, ordering that they take the necessary steps to make admittance to public schools nondiscriminatory “with all deliberate speed.” The term “all deliberate speed” was used by school boards to delay desegregation. Circuit Judge John J. Parker led the south in interpreting Brown as a charge not to segregate, but not an order to integrate. In 1963 the Court ruled in McNesse v. Board of Education and Goss v. Board of Education in favor of integration, and showed impatience with efforts end segregation. In 1968 the Warren Court ruled in Green v. County School Board that “freedom of choice” plans were insufficient to eliminate segregation, thus it was necessary to take proactive steps to integrate schools. In United States v. Montgomery County Board of Education Judge Frank Johnson’s desegregation order for teachers was upheld, allowing an approximate ratio of the races to be established by a district judge. In the Burger Court’s first desegregation case, Alexander v. Holmes County Board of Education repudiated the “all deliberate speed” standard and district courts were ordered to bring the immediate end of dual school systems. All the desegregation cases were unanimous decisions by the Supreme Court. The Nixon Administration was in favor of a “go slow” approach to integration, and Burger was a Nixon appointee.

The Facts of the Case

North Carolina was one of the more moderate southern states, and its resistance to integration was weaker than some other areas. Still, though the Charlotte-Mecklenburg School District had some blacks attending white schools and some whites attended black schools, the majority of black students still attended all black schools. The NAACP made the Swann case on behalf of six-year-old James Swann and nine other families, with Julius Chambers representing the case. Swann was chosen because his father was a theology professor, and was thus unlikely to be economically burdened by local retaliation. In 1965 Judge J. Braxton Craven ruled Swann v. Charlotte-Mecklenburg Board of Education in favor of Charlotte-Mecklenburg, because there was no requirement in the constitution to act purposely to increase racial mixing. After the Green ruling, the Swann case was filed again, and this time taken by Judge James B. McMillan, as his first important case on the federal bench. McMillan had at one point been a public opponent of busing to integrate schools, but when the case was presented to him he said that the facts outweighed his feelings, and busing was the only way to fulfill the constitutional requirement of desegregation. Experts from Rhode Island College were brought in, for an unbiased view. From April to November of 1969 McMillan repeatedly ordered the board to file a plan for desegregation, but the board only supplied weak plans, if any. Using a plan suggested by Dr. John Finger, one of the Rhode Island College experts, McMillan ordered that all 105 Charlotte-Mecklenburg schools desegregate. The plan proposed to integrate by busing students from elementary though high school to different schools. He also ordered that pupil populations at schools would be similar to the 71-29 ratio of whites to blacks that existed in the at large population of the area. McMillan was made a local pariah, and Chambers had his home, office and car bombed. When the case was appealed to the U.S. Court of Appeals for the Fourth Circuit and six of the seven judges sat on the case (the last disqualified himself due to prior involvement). The opinion was 3-2-1 that the busing orders should be affirmed for older students, but that it be remanded for those of elementary school age. Two dissenters would have affirmed the whole decision, while one would reverse McMillan’s ruling in its entirety. McMillan decided to follow his original plan for elementary school students after the case was remanded to him.

Swann before the Supreme Court

Justice Douglas had previously been strongly in favor of busing. The Court was urged to begin their term early to hear the case, but decided to wait until the first day of their new term to begin. Julius Chambers argued the case despite his relative youth and inexperience, due to his intimate knowledge of the facts of the case. Erwin Griswold, the solicitor general, spoke for the government, advocating Nixon’s “go-slow” policy. Though no official vote was taken, Justice Black and Chief Justice Burger wanted to reverse McMillan’s order, while Justices Douglas, Harlan, Brennan and Marshall wanted a strong affirmation of the order. Justices White, Stewart and Blackmun did not express a strong feeling either way. Brennan, Douglas and Marshall were quite liberal, but Harlan was usually conservative, but had a family tradition of supporting the rights of blacks (his grandfather of the same name had written a strong dissent in Plessy v. Ferguson). Blackmun was new to the Court, and had strong ties to Chief Justice Burger. Chief Justice Burger decided to assign the writing of the opinion to himself, contrary to tradition. When he circulated his very grudging affirmation of McMillan that limited future action and action in other areas by the Court, he met strong resistance. Brennan, Douglas, Harlan and Marshall all demanded revisions and circulated suggestions for alternate drafts. Justice Stewart also reacted strongly after carefully considering the facts of the case, and wrote a “dissent” that would have been the opinion of the court without revisions of Burger’s drafts. Burger revised the opinion five times, each time making a stronger affirmation of McMillan and incorporating the language of Stewart, Brennan, Harlan and others into it. This process wasted a large amount of time, and created a document that read as if it was written by committee, which in essence it was. After the fifth draft Justice Black threatened a dissent if the opinion was made any stronger an affirmation, and so a sixth and final draft was created that was close to what Justice Stewart had composed after the first conference. Throughout the case Burger tried to manipulate the Court, but in the end failed to take control and never tried so obviously again. The final opinion was 9-0 affirming McMillan’s order. The decision, despite later efforts by Burger to undermine it, lead to the widespread use of busing to end segregation by federal judges in the South. Though busing became a contentious issues when implemented nationwide, but Charlotte proved to be one of the policy's success stories; school systems in North Carolina are usually organized at the county level even in urban areas. Both Charlotte and its immediate suburbs are in the same district and therefore transferring students was an easier proposition than in other American cities.

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The History of Desegregation

The Facts of the Case

Swann before the Supreme Court