SWANN v. CHARLOTTE-MECKLENBURG BOARD OF ED.

HAYNSWORTH, Chief Judge:

In this school case, the plaintiffs have appealed from the denial of certain affirmative relief which they sought in the District Court. We think the District Court's disposition of the matter was correct.

Prior to 1962, the School Board had purported to proceed under North Carolina's Pupil Placement Act. Except to the extent that assignments were affirmatively made under that Act, school assignments were controlled by a system of dual attendance zones, a method of assignment which is clearly unconstitutional. In 1962, however, the School Board affirmatively resolved to do something about it.

Coincident to the adoption of a school construction program, involving the expenditure of $30,000,000 over a five-year period, to replace old and inadequate buildings and to care for areas of rapidly expanding school population, the School Board adopted a plan of single school zoning. The rezoning was to be accomplished over a period of years, however, and coordinated with the construction program so as to avoid, wherever possible, multiple pupil transfers and general rearrangement of the attendance zones.

For the school year 1962-1963, such attendance zones were established for two schools only. For the next year, 1963-1964, twelve more schools were zoned, making a total of fourteen. In 1964-1965, the total of the zoned schools rose to forty-three, and in the school year 1965-1966 ninety-nine of the one hundred and nine schools in the system had been zoned.

In 1962, the Board permitted any member of a racial minority in a particular school to transfer to a school in which his race was in the majority.1 Later, this right of transfer was made available to all pupils, so that, as applied, every pupil in the schools, whatever the basis of his initial assignment, has an unqualified right of transfer to any other school in the system, subject only to space limitations in the school to which transfer is sought. In practice, each pupil is given three choices, and the space limitation has not proved an obstacle in the effective exercise of the right.

Under the geographic zoning of the ninety-nine schools during the school year 1965-1966, 1,955 Negro pupils were initially assigned to schools in which white pupils were predominant. Ninety-one of those exercised their transfer rights and were retransferred to schools of their choice which were largely attended by Negroes. Two hundred and sixty-two Negro pupils exercised their right to transfer from schools attended entirely or predominantly by Negroes to schools populated principally by whites. Thus, in the school year 1964-1965, 2,126 Negroes actually attended schools in which white pupils constituted the majority, or a substantial proportion of the school's population.

Three hundred and ninety-six white children were initially assigned under the geographic zoning plan to schools in which Negro pupils constituted a majority of the population. Most, but not quite all, of those three hundred and ninety-six white children, exercised their transfer rights and were reassigned to schools in which white students predominated.

The number of white schools integrated and the number of Negroes attending those schools has steadily increased, the largest increase occurring in 1964-1965. It is expected that there will be still larger increases in the coming year, particularly as a result of the elimination of the ten unzoned schools.

The ten unzoned schools are entirely Negro. They are rural schools, and their pupil populations are drawn from wide areas which overlap the established zones of other schools. This, of course, is not an acceptable basis for the initial assignment of pupils.2 This, the Board recognized, however, but it asked approval of its procedures upon the ground that those ten, physically inferior, schools were going to be eliminated. The Board felt that it was impractical to establish geographic zones for them and felt it unwise to reassign students in those schools to other schools when, under the progressing construction program, those same pupils would necessarily be reassigned to still other schools after only a year or two. Meanwhile, it thought that the fact that each student attending those ten schools had an unrestricted right to transfer to any school of his choice was a sufficient corrective to authorize approval of the Board's operation for the short interim period. It represented to the District Court that it expected to have established geographic zones for the assignment of pupils to all schools in the system by the school year 1966-1967, and, in all events, no later than 1967-1968.3

Under these circumstances, we think the District Court's approval of the Board's procedures for the year 1964-1965 was within the bounds of its discretion. The Board appears to have been busily engaged in the elimination of vestiges of the discriminatory system of assignments which had prevailed earlier. There was a rational basis for not undertaking geographic rezoning of those ten antiquated schools, and, in light of the unfettered right of transfer available to each of the pupils in those ten schools, delay of the one year in their involuntary transfer to other schools was not unwarranted, when the delay would avoid successive transfers for a substantial portion of them.

This appeal did not reach us until the 1965-1966 school year was well underway when transfers for that year would have been most undesirable. Now that the operation of the ten schools without geographic zoning has been eliminated for the school year 1966-1967, the plaintiffs' complaint about the operation of the ten unzoned schools last year has become largely academic.

The plaintiffs complain about some of the boundaries between established school zones. The District Judge found none of these complaints justified. In a number of instances, possible changes in the boundaries, as suggested by the plaintiffs, would not have affected the make-up of the school population, but would have operated only to transfer white pupils from one school predominantly attended by whites to another school predominantly attended by whites. In the remaining instances, the lines drawn by the School Board were found to follow natural boundaries and to be entirely reasonable. In one instance of which the plaintiffs particularly complain, the line runs along the survey route of a major Belt highway to be constructed, running through an uninhabited area crossed by no other streets or roads. If the line were moved to McAlway Road, it would bring into the Billingsville School attendance zone a residential area from which there is no direct access to the Billingsville School, though pupils in that area live in very close proximity to Cotswold School, in which zone they now are. Clearly, the School Board's boundary is the more reasonable.

On this phase of the case, the principal complaint of the plaintiffs appears to be that the zoning of the schools has not produced a greater mixture of the races than it has. There are still some all white schools; there are still some all Negro schools, and, though the number of those have been declining, there is no reason to think that some of them will not remain in the school year 1966-1967. The plaintiffs contend the lines should have been drawn with the conscious purpose of eliminating as many of such schools as possible and of achieving a maximum intermixture of the races.

Whatever the Board may do in response to its own initiative or that of the community, we have held that there is no constitutional requirement that it act with the conscious purpose of achieving the maximum mixture of races in the school population.4 The Constitution permits the Board to consider natural geographic boundaries, accessibility of particular schools and many other factors which are unrelated to race. So long as the boundaries are not drawn for the purpose of maintaining racial segregation, the School Board is under no constitutional requirement that it effectively and completely counteract all of the effects of segregated housing patterns.

The School Board does provide some permissive amelioration of the effects of segregated housing patterns through its granting of free transfer rights. No geographic boundaries could be drawn which would result in the geographic assignment of Negro pupils living in the Western and Northwestern portions of Charlotte to integrated schools, but each of those pupils does have an absolute right to attend an integrated school if he wishes under the free choice option.

Nevertheless, the plaintiffs also complain that white pupils assigned to predominantly Negro schools have a transfer option, which has been exercised by most of them. A substantial number of Negroes in the same minority situation have exercised their options, too, and, as pointed out above, a system of free transfers is the only means by which many Negroes can attend integrated schools. Since each pupil in the system has the option, we think the existence of the right of transfer is constitutionally permissible.5

As part of its plan, the School Board had adopted a resolution looking toward the "ultimate" integration of the faculty and staff. The District Court required an amendment of that resolution to make it immediately effective. No one has complained of its action requiring that amendment, but it is appropriate to mention it here, since it tends to complete the picture of the Board's ultimate purposes and to show the care with which the District Court considered the Board's operations and plans in light of the plaintiffs' complaints.

If, in light of any development or circumstance occurring since the hearing of this case, any party shall have any reason to apply to the District Court for further relief or for any modification of its order, leave is granted for such application whether or not a certified copy of the judgment of this Court in lieu of its mandate has been lodged in the District Court.

Affirmed.

SOBELOFF and J. SPENCER BELL, Circuit Judges (concurring):

We concur in the result in this case, but for the reasons set forth in our dissents in Bradley v. School Bd. of City of Richmond, 345 F.2d 310 (1965), and Gilliam v. School Bd. of City of Hopewell, 345 F.2d 325 (1965), we cannot associate ourselves with the language of that portion of the opinion which discusses generally the School Board's duty to desegregate. In Bradley we said:

In Gilliam we said:

We adhere to these views and submit that they present a correct philosophy and the true measure of the School Board's duty.