Calhoun v. Latimer Petitioners' Response to Brief in Opposition to Petition for Writ of Certiorari

    Btxpttm? (£mnl n! %  luttai States
O ctober T erm , 1963 

No.....................

1st the

F red 8. Calh o u n , et al.,
Petitioners,

A . C. L atimer, et al.,
Respondents.

PETITIONERS’ RESPONSE TO BRIEF IN 
OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

Constance B aker M otley 
J ack  G reenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N, E. 
Atlanta, Georgia

D onald L . H ollowell
Cannolene Building (Annex) 
859% Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Petitioners
N orman  A m a k e r  
A. T. W alden 
J. L eV onne Chambers

Of Counsel



I n  th e

Jhtpr?ntT (to r t  of the Ilnttoit Stairs
O ctobee T eem , 1963 

No......................

F eed S. Calh o u n , et al,
Petitioners,

A . C. L atim ee , et al.,
Respondents.

PETITIONERS’ RESPONSE TO BRIEF IN 
OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

Although the Fifth Circuit has ruled in Augustus v. 
Board of Public Instruction of Escambia County, 306 F. 2d 
862, that the redrawing of school zone lines on a nonracial 
basis is a minimum requirement in every school desegrega­
tion plan, respondents say on page 11 of their brief in op­
position, “ We would still oppose the drawing of school 
zones by a Court or even the school authorities” . This mini­
mal requirement for desegregation has been adopted by the 
Sixth Circuit, Northcross v. Board of Education of Memphis, 
302 F. 2d 818, and the Fourth Circuit. Jones v. School 
Board of City of Alexandria, 278 F. 2d 72, 76. The majority 
opinion below does not require Atlanta to follow the Au­
gustus case in this respect. It was for this reason that 
Judge Rives in his dissenting opinion characterized the 
majority opinion as a step backward for the Fifth Circuit.



2

The obvious reason for this minimum requirement is the 
eventual elimination of initial assignments to schools based 
on race with Negro children thereafter enjoying only an 
opportunity to apply for transfer out of a Negro school into 
a white school. Bush v. Orleans Parish School Board, 308 
F. 2d 491 (5th Cir. 1962). However, there being no direc­
tive in the majority opinion to the Atlanta school authori­
ties to abolish the dual zones, which respondents now admit 
exist (see pp. 11-12 of Respondents’ Brief), the Atlanta 
plan is still one providing for initial racial assignments 
and dual zones. Another setback for the Fifth Circuit.

Respondents read into the majority opinion below a re­
quirement that beginning in September 1964 (when the 
present plan will be effective as to grades 8-12, in that it 
will permit students in these grades to apply for transfer 
to other schools) every child in grades 8-12 will have the 
right to attend the school nearest his home. Petitioners 
do not so read the opinion of the majority. The majority 
opinion requires only that the present pupil assignment 
criteria of the plan be applied to all students entering the 
high schools for the first time (eighth grade where the 
feeder system takes hold) and to all students new to the 
system entering a desegregated grade and to first grade 
pupils when the plan eventually reaches that grade (Ap­
pendix to Petition 22a and 40a). There is no ruling that 
pupils in grades 9-12 are now entitled to attend the schools 
nearest their homes, as claimed by respondents. A  further 
setback for the Fifth Circuit.

The crucial fact which cannot be gainsaid is that three 
years of desegregation in Atlanta, one of the largest cities 
in the south, has resulted in less than 150 Negro children 
out of a total school enrollment of approximately 106,000 
(57,500 white and 48,000 Negro) transferring to white 
schools without any order from the District Court or the



B

Court of Appeals to speed the desegregation process. More­
over, the majority opinion approves a grade-a-year pupil 
assignment plan, still another setback for the Fifth Circuit, 
Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960), which has 
brought about this meager result and does not require any 
speeding up of the plan despite this Court’s clear admoni­
tion to the District Court, Watson v. City of Memphis, 373 
U. S. 526, and Goss v. Board of Education, 373 U. S. 683.

Respondents say that the atmosphere in Georgia has 
changed from one of massive resistance to acceptance of 
this Court’s decision in the Brown ease, and for this reason 
certiorari should be denied in this case. Yet, it should be 
clear to all that in former massive resistance states the only 
way to insure compliance with the Fourteenth Amendment 
against interference by either state officials, Cooper v. 
Aaron, 358 U. S. 1, or individuals, Hoxie v. School Board, 
137 F. Supp. 364 (D. C. Ark. 1956), aff’d 238 F. 2d 91 (8th 
Cir. 1956) is to insulate school authorities against such 
interference by the orders of lower federal courts. The 
school desegregation record throughout the south to date 
makes plain that so far only constant pressure brings prog­
ress, notwithstanding the good faith of the school authori­
ties. And as the Fifth Circuit said in Borders v. Rippy, 
247 F. 2d 268, 272: “ Faith by itself, however, without works, 
is not enough. There must be ‘compliance at the earliest 
practicable date’ ” .



4

CONCLUSION

For the additional foregoing reasons, this Petition for 
a Writ of Certiorari should be granted.

Respectfully submitted,

N orman A maker

Constance B aker M otley 
J ack  G reenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N. E. 
Atlanta, Georgia

D onald L. H ollowell

Cannolene Building (Annex) 
859V2 Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Petitioners

A . T . W alden 
J. L eV onne C hambers

Of Counsel



o 38



I s  T H E

(tart of tl?? i>tat?s
O ctober T erm , 1963 

No. - .............

F red S. Calh o u n , et al.,

— v . —
Petitioners,

A . C. L atim er , et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI

Co sstasce  B aker M otley 
J ack  Greenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N. E. 
Atlanta, Georgia

D onald L . H ollowell
Cannolene Building (Annex) 
859% Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Petitioners

N o rm a s  A maker 
A . T . W alden 
J . L eV onnb Chambers

Of Counsel



I N D E X

PAGE

Citation to Opinions Below ...................... ......... .............  1

Jurisdiction ........................................................................ . 2

Question Presented ............................................................ 2

Constitutional Provision Involved ..................................  3

Statement ........................................................................... 3

Reasons Relied On For Allowance Of Writ ...................  8

Co n c l u s io n ........................................................... ...............  16

A ppendix

Opinion of District Court Denying Motion for
Further Relief ..........    la

Opinion of Court of Appeals Affirming District
Court .......................................................................  7a

Opinion of Court of Appeals on Rehearing...........  39a

T able of Cases :

Augustus v. Board of Public Instruction, 306 F. 2d 
862 (5th Cir. 1962) .................................... ............. 8,11,13

Bailey v. Patterson, ------  F. 2 d ------  (5th Cir., Sept.
24, 1963, not yet reported) ................................   14

Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) ...........9,10
Brown v. Board of Education, 347 U. S. 483 ....2, 3, 5,10,11
Brown v. Board of Education, 349 U. S. 294 ...............8,15
Bush v. Orleans Parish School Board, 308 F. 2d 

491 (5th Cir. 1962) ....     8,11



11

PAGE

Cooper v. Aaron, 358 U. S. 1 ........................................ 10,11

Davis v. Board of School Commissioners of Mobile 
County, Alabama, 318 F. 2d 63 (5th Cir. 1963) .......  9

Evans v. Ennis, 281 F. 2d 385 (3d Cir. 1960) ...............  9

Gibson v. Board of Public Instruction, 272 F. 2d 767 
(5th Cir. 1959) ...............................................................  13

Gibson v. Board of Public Instruction, 246 F. 2d 913 
(5th Cir. 1957) ...............................................................  13

Goss v. Board of Education of the City of Knoxville,
373 U. S. 683 ....................................... .................. 8, 9,14,15

Goss v. Board of Education, 270 F. 2d 164 (6th Cir. 
1962) .................................................................................  9

Holland v. Board of Public Instruction, 258 F. 2d 730 
(5th Cir. 1958) ...............................................................  11

Jackson v. School Board of City of Lynchburg, Vir­
ginia, 321 F. 2d 230 (5th Cir. 1963) ..........................  9

Jones v. School Board of the City of Alexandria, 278 
F. 2d 72 (4th Cir. 1960) ..........................................11,12,15

Northcross v. Board of Education of the City of Mem­
phis, 302 F. 2d 818 (6th Cir. 1962) .......................11,12,15

Potts V. Flax, 313 F. 2d 284 (5th Cir. 1963) ................... 11

Shuttlesworth v. Birmingham Board of Education, 358 
U. S. 101, affirming 162 F. Supp. 372 (N. D. Ala. 
1958) ............................................................... 4 n.3,10,13,14

Watson v. City of Memphis, 373 U. S. 526 ....8,10,11,14,15



Ill

S tatutes and Other  A uthorities :
PAGE

United States Code, Title 28, §1254(1) ........... ...........  2

Code of Alabama (Recompiled) §§61(1) et seq.......... . 13

Tennessee Code Annotated §§49-1741 et seq.................  13

Southern School News, September 1963 ......... ............ .4,16

Southern School News, October 1963 ..........................  16



I n  the

(tart of %  lotted
O ctober T erm , 1963 

No.................

F red S. Calh o u n , et al.,
Petitioners,

—v.—

A. C. L atim er , et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fifth Circuit, entered in the above-entitled case on 
June 17, 1963, rehearing of which was denied on August 
16, 1963.

Citation to Opinions Below

The District Court’s opinion denying the further relief 
sought and from which an appeal was taken to the court 
below is reported at 217 F. 2d 614 and printed in the Ap­
pendix hereto at page la.

Prior Findings of Facts, Conclusions of Law, Orders and 
Judgments of the United States District Court for the 
Northern District of Georgia, Atlanta Division (R. 13, 27,



2

55, 63, 69, 70, 302, 311),* reported at 188 F. Supp. 401 and 
188 F. 2d 412 are not printed in Appendix hereto.

The opinions of the United States Court of Appeals for 
the Fifth Circuit, modifying and affirming the decision of 
the District Court and denying petitioners’ petition for 
rehearing en banc are printed in the Appendix, infra, at 
7a, 39a, and reported in 321 F. 2d 828.

Jurisdiction

The judgment of the Court of Appeals was entered on 
June 17, 1963. Application for rehearing en banc was 
denied on August 16, 1963 (A. 39a). The jurisdiction of 
this Court is invoked under 28 U. S. C. §1254(1).

Question Presented

Respondents school authorities operate a biracial system 
which, under court order, now allows children to transfer 
to schools for the other race upon satisfying seventeen 
pupil assignment criteria, leaving the dual system other­
wise intact. This limited opportunity to transfer has been 
given on a twelve year descending grade-a-year basis and 
is now enjoyed by children in 12th, 11th, 10th and 9th 
grades. In 1972 children will still have only this limited 
right. Does not Brown v. Board of Education impose upon 
respondents the affirmative duty to eliminate all racial 
classifications by reorganizing the schools into a unitary 
nonraeial system and to do so now much more quickly than 
in twelve years!

* (R. — ) refers to Volumes 1-3 of the mimeographed record; 
(A. — ) refers to the Appendix herein.



3

Constitutional Provision Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

As early as 1955, Negro parents in Atlanta began peti­
tioning local school authorities to desegregate Atlanta’s 
public school system in compliance with this Court’s deci­
sion in Broivn v. Board of Education of Topeka, 347 U. S. 
483 (1954) (R. 6, 306). Today, almost ten years after this 
Court’s holding that racial segregation in public education 
denies Negro children equal educational opportunities, 
Atlanta’s segregated school system is still essentially 
intact.

Atlanta now has a total public school population of 
approximately 106,000—approximately 57,500 whites and 
48,000 Negroes. Although Negroes constitute 45% of the 
total, they have been allotted only 33% of the school build­
ings and 40% of the teachers and principals; they suffer 
serious overcrowding in certain schools and higher pupil- 
teacher ratios (R. 86, 143, 144, 169, 199, 200).

Approximately four years after Brown, on January 11, 
1958, petitioners, parents of Negro school children, brought 
suit in a United States District Court to secure compliance.

More than three years later, in September, 1961, school 
desegregation began with the admission of 10 Negro stu­
dents in grades eleven and twelve to four formerly all- 
white high schools (R. 100, 138).1 In September, 1962, 44

1 The District Court refused to require school authorities to com­
mence desegregation in May, 1960 because it was of the opinion that 
no action should be required until the Georgia Legislature made it



4

more Negro students were admitted to seven formerly 
all-white high schools in grades twelve, eleven and ten 
(R. 139-141, 188).2 3

They were admitted pursuant to a desegregation plan 
approved by the District Court on January 20, 1960 (R. 55). 
This plan provides for grade-a-year desegregation begin­
ning with the 12th grade and proceeding, in reverse, a 
grade a year. However, in order for any desegregation to 
take place in any grade, applications by individual children 
must be made between May 1st and 15th (R. 50) and must 
be acted upon according to 17 pupil assignment criteria (R. 
48-49).8 The plan maintains unimpaired the dual school 
system (R. 88-91, 106-109). All racial assignments previ­
ously made were frozen unless and until a transfer in 
accordance with the plan is granted (R. 50). In short, a 
person desiring desegregation may apply when the reverse 
stair-step operation of the plan reaches his or her grade 
level. But except as to that individual no other change can 
be made.

Between May 1st and 15th, 1961, 129 Negro students in 
grades eleven and twelve returned application forms for

possible for Atlanta to proceed without having its schools closed. 
Because of this delay, the court ordered the school authorities to 
desegregate the 12th and 11th grades pursuant to the court- 
approved plan upon its commencement in 1961 (R. 63-69).

2 In September, 1963, a total of 145 Negro students were in for­
merly all-white high schools in grades 12, 11, 10 and 9. Southern 
School News, Sept. 1963, p. 8, cols. 1 and 5. Twenty-nine had been 
previously admitted. .

3 The 17 criteria are identical with those of the Alabama pupil 
assignment law upheld as constitutional on its face in Shuttlesworth 
v. Birmingham Board of Education, 358 U. S. 101 (1958), affirming 
162 F. Supp. 372 (N. D. Ala. 1958). Here, of course, the case in­
volves application of such a plan, not its surface plausibility.



5

transfer to white high schools (E. 95, 137-139).4 From these 
school authorities admitted 10 to 4 formerly all-white high 
schools. The following year, 44 were selected out of 266 
applicants (E. 139-141, 188).

The pupil assignment criteria were applied only to those 
applicants, all Negroes, seeking transfer during the May 
1st to 15th period to schools attended by pupils of the oppo­
site race. All other applications for transfer, whites to 
white schools and Negroes to Negro schools, were consid­
ered “ informal” transfers and were made throughout the 
school year (E. 189-194, 161-162).

April 30, 1962, after the first year of operation of the 
plan, petitioners moved the District Court for further relief 
(E. 77-84). Petitioners claimed that the plan, which had 
been approved over their numerous objections, had not 
resulted in desegregation (E. 81-82). They prayed for not 
only a new plan to speed up desegregation but for one pro­
viding prompt reassignment and initial assignment of all 
students on some reasonable nonracial basis, e.g., the draw­
ing of a single set of attendance area lines for all schools, 
without regard to race, to replace the present dual scheme 
of schoof attendance area lines for Negro and white schools. 
Petitioners claimed the Brown case contemplated the re­
assignment of teachers on a nonracial basis and the elimi­
nation of all other racial distinctions in the operation of the 
school system (E. 81). In short, petitioners sought an 
integration of the dual school system into a unitary non­
racial system with greater speed. Petitioners’ motion for 
further relief was finally denied on November 15, 1962 on 
the ground that the plan “ is eliminating segregation.” The

4 One white student sought a transfer from Northside High 
School (white) to Dykes High School (white) because Northside 
had been designated as a school to which Negroes would be ad­
mitted. The white student’s application was denied (R. 138, 187).



6

teacher assignment issue was indefinitely deferred (R. 291). 
This denial of further relief was flatly affirmed by the Court 
of Appeals for the Fifth Circuit in a two-to-one decision 
(A. 7a),5 Judge Richard T. Rives, dissenting.

The District Court’s refusal to grant any further relief 
was squarely affirmed by the majority, on the ground that 
certain deficiencies in the plan “would be adjusted by those 
having charge of the schools, or upon their failure, by the 
District Court” (A. 25a). Subsequently, upon denial of 
rehearing, the majority issued a further opinion describing 
corrective action to eliminate some of the discriminatory 
characteristics of the plan. The majority stated that this 
corrective action “must apply to transfers and assignments 
for the 1963-64 term to the extent, if any, that the practices 
giving rise to the deficiencies may have been continued in 
use” (A. 40a). The deficiencies which the majority wrote 
should be corrected were:

1. The plan must now be applied “ in an even handed 
manner without regard to race to all assignments of 
pupils new to a school for admission in a desegregated 
grade in that school. (Emphasis added.)

2. The plan must be applied to all transfers, formal 
and informal. (Emphasis added.)

3. Personality interviews, if utilized, may not be given 
only to Negro students seeking assignment or transfer.

4. No transferee may be required to score a grade on 
scholastic ability and achievement tests equal to the 
average of the class in the school to which transfer is 
sought.

5 The Court consisted of Judges Griffin B. Bell and David T. 
Lewis of the 10th Circuit, sitting by designation, as well as Judge 
Rives. Petition for rehearing was denied on August 16, 1963, Judge 
Rives again dissenting.



7

5. No scholastic requirement may be used which is 
limited to Negro students seeking transfer or assign­
ment.

The petition for rehearing was denied August 16, 1963, 
less than three weeks before the opening of school. How­
ever, assuming the suggested corrections were made, the 
practical results wTere the admission of approximately 116 
more Negro students to 10 of the 16 formerly all white high 
schools in grades 12, 11, 10, and 9 out of a total Negro 
school population of approximately 48,000, with no white 
pupils, who number at least 57,500, admitted to any of the 
5 Negro high schools.6 In short, the majority opinion re­
quired no speedup in the desegregation process and left 
undisturbed all of the major props on which the dual system 
rests. The majority left intact: 1) all existing racial as­
signments in the high schools in grades 10-12; 2) the 
“ feeder”  system whereby certain Negro elementary schools 
(grades 1-7) “ feed” certain Negro high schools (grades 
8-12) and the same with respect to white elementary and 
high schools, although the opinion seems to suggest the 
plan be applied to all assignments at the point (grade 8) 
where the feeder system takes hold; 3) all existing and 
future racial assignments in the elementary schools made 
pursuant to the dual scheme of attendance area lines; 
4) all teacher assignments which are admittedly based on 
race; 5) the five administrative areas plan whereby all 
Negro schools are in Area One under the jurisdiction of a 
Negro Area Supervisor;7 and 6) the grade-a-year feature 
of the plan.

In other words, Atlanta still has, and for the future, will 
have segregated schools from which Negro children must

6 See footnote 2, supra.
7 R. 107, 145, 171.



8

seek escape by taking an administrative initiative. Isolated 
children may thereby get into “white” schools. The segre­
gated system survives but for this token accommodation.

Reasons Relied On for Allowance of the Writ

The Decision Below Approving Respondents’ Desegre­
gation Plan Conflicts With Prior Decisions of the Fifth 
and Other Circuits and With the Applicable Decisions of 
This Court.

1. Circuit Judge Richard T. Rives dissented below not 
only on the ground the majority opinion disregarded this 
Court’s admonition in Watson v. City of Memphis, 373 U. S. 
526 and Goss v. Board of Education of the City of Knox­
ville, 373 IJ. S. 683, but also because that opinion repre­
sented “ a step backward”  for the Fifth Circuit which 
previously had required other school districts, New Orleans, 
Louisiana, Bush v. Orleans Parish School Board, 308 F. 2d 
491 (5th Cir. 1962) and Pensacola, Florida, Augustus v. 
Board of Public Instruction, 306 F. 2d 862 (5th Cir. 1962), 
to abolish the dual school system.

In Watson, Memphis attempted to extend to public rec­
reation the deliberate speed concept of Brown v. Board of 
Education of Topeka, 349 U. S. 294 (1955). In holding the 
concept inapplicable to public recreation, this Court warned 
that the concept did not “ countenance indefinite delay” in 
bringing about a transition from a segregated to a desegre­
gated school system (at p. 534). The Court specifically 
admonished that the passage of time since 1954 has con­
siderably altered the type of plans which would now satisfy 
the requirement of “ all deliberate speed.” However, de­
spite the clear teaching of Watson, the majority below 
approved, in 1963, eight years after this Court’s decision 
requiring “deliberate speed,” a grade-a-year plan which



9

when completed will leave Atlanta with a system of token­
ism based upon a foundation of fundamental segregation.

The majority approved Atlanta’s grade-a-year plan de­
spite the fact that the Fifth Circuit, itself, had warned in 
Davis v. Board of School Commissioners of Mobile County, 
Alabama, 318 F. 2d 63 (5th Cir. 1963), that . . the amount 
of time available for the transition from segregrated to de­
segregated schools becomes more sharply limited with the 
passage of the years since the first and second Brown de­
cisions” (at p. 64).

Moreover, the Fifth Circuit previously had rejected plans 
which provided for desegregation on a grade a year basis. 
Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960). There the 
Fifth Circuit ruled in approving a grade a year plan as a 
start: “ In so directing, we do not mean to approve the 
twelve-year, stair-step plan ‘insofar as it postpones full 
integragtion’ ” (at p. 47).

The Third Circuit, as early as 1960, rejected the notion 
that it would take 12 years to desegregate public schools 
throughout the State of Delaware. It required an accelera­
tion of the transition period in that state. Evans v. Ennis, 
281 F. 2d 385, 389 (3rd Cir. 1960).

The Sixth Circuit having originally approved a twelve- 
year plan for a school board which commenced desegrega­
tion in 1956, Kelley v. Board of Education of City of Nash­
ville, 270 F. 2d 209 (6th Cir. 1959), subsequently rejected a 
similar plan commencing a grade-a-year in 1962. Goss v. 
Board of Education, 301 F. 2d 164 (6th Cir. 1962), reversed 
on other grounds 373 U. S. 683 (1963).

Twelve year plans to commence in 1962 also have been 
rejected emphatically by the Fourth Circuit. In Jackson v. 
School Board of City of Lynchburg, Virginia, 321 F. 2d 230 
(4th Cir. 1963), after reviewing this Court’s decision in



10

Watson v. City of Memphis, the Fourth Circuit ruled: . .
the ‘grade-a-year’ plan, promulgated by the Lynchburg 
School Board, for initial implementation eight years after 
the first Brown decision, cannot now be sustained” (at p. 
233).

The majority opinion below, therefore, clearly conflicts 
with the prior decisions of the Fifth Circuit, itself, and the 
decisions of three other circuits with respect to the length 
of time which should now be allowed Atlanta in which to 
desegregate its schools.

As the Fifth Circuit noted in Boson v. Rippy, supra, the 
District Court’s approval of the 12 year plan for Atlanta in 
January, 1960, which went into effect in September, 1961, 
must be viewed as no more than the approval of a plan for 
initiating a start toward desegregation. That these peti­
tioners did not appeal from that approval in 1961, as Judge 
Rives wrote, does not preclude them—a start having been 
made—from seeking full compliance and seeking to set 
aside a plan which demonstrably did not result in the de­
segregation of the Atlanta schools, and which had been 
administered to discriminate against Negroes although con­
stitutional on its face. See, Shuttlesworth v. Board of 
Education of the City of Birmingham, 358 TJ. S. 101 (1958) 
affirming 162 F. Supp. 372 (N. D. Ala. 1958).

2. But more invidious than the twelve-year feature is 
the denial of rights which will persist after twelve years are 
gone. The majority ignored the fact that Brown struck 
down the dual school system. It did not merely afford to 
Negro pupils an opportunity to apply and to be subjected 
to a number of criteria to determine their eligibility and 
suitability for admission to “white” schools within the seg­
regated framework.

In Brown v. Board of Education of Topeka, 347 U. S. 483 
(1954), 349 U. S. 294 (1955), Cooper v. Aaron, 358 IT. S. 1



11

(1958) and Watson v. City of Memphis, supra, this Court 
made clear that the time allowed southern school authori­
ties for affording Negro pupils their constitutional rights 
was tolerable only because there is involved in these cases 
the problem of transition from a segregated to a desegre­
gated school system. These opinions speak in terms of 
transforming school “ systems” and the holding in Brown 
is that racial segregation in “public education” has no place. 
347 U. S. 483, 495. In Cooper v. Aaron, supra, at page 7, 
this Court directed the District Courts again to require “ ‘a 
prompt and reasonable start toward full compliance,’ ” and 
to “ take such action as was necessary to bring about the end 
of racial segregation in the public schools. . . .” (Emphasis 
added.) There was clearly never any thought that the 
Brown decision was a license to continue the dual school sys­
tems while affording to Negro children the opportunity to 
apply for transfers to “white” schools within the “ separate- 
but-equal” structure. The structure, itself, was doomed.

The Fifth Circuit in a prior decision, Potts v. Flax, 313 
F. 2d 284 (5th Cir. 1963), had made this abundantly clear. 
There a Negro claimed to have brought suit to desegregate 
the schools on behalf of his children alone and denied that 
he represented a class. The court ruled that even where a 
single Negro sues the relief which must necessarily be 
granted under Brown involves relief for Negroes as a class. 
See also Holland v. Board of Public Instruction, 258 F. 2d 
730 (5th Cir. 1958). In addition, the Fifth Circuit in prior 
decisions specifically had required elimination of the dual 
school system, Bush v. Orleans School Board, supra and 
Augustus v. Board of Public Instruction, supra, by direct­
ing elimination of dual school attendance areas for Negro 
and white schools. The Fourth Circuit in Jones v. School 
Board, of the City of Alexandria, 278 F. 2d 72, 76 (4th Cir. 
1960) and the Sixth Circuit in Northcross v. Board of Edu­



12

cation of the City of Memphis, 302 F. 2d 818, 823 (6th Cir. 
1962) have also imposed such a requirement. In Northeross 
the court said:

“ Minimal requirements for nonracial schools are geo­
graphic zoning, according to the capacity and facilities 
of the buildings and admission to a school according to 
residence as a matter of right. ‘Obviously, the mainte­
nance of a dual system of attendance areas based on 
race offends the constitutional rights of the plaintiffs 
and others similarly situated and cannot be tolerated.’ 
Jones v. School Board of the City of Alexandria, Vir­
ginia, 278 F. 2d 72, 76, C. A. 4.” (At p. 823).

The majority opinion does not require Atlanta to abolish 
dual school attendance areas. As Judge Fives points out in 
his dissenting opinion, both the District Court and the ma­
jority below overlook the record with respect to present 
existence of a dual system of school attendance area lines in 
Atlanta (A. 32a-33a, footnote 4).

^ince the Fifth Circuit previously had ordered New Or­
leans and Escambia County, Florida to abolish dual attend­
ance area lines, it is obvious that the majority opinion not 
only represents a step backwards for that circuit which 
had recognized that the Brown case required the reor­
ganization of the dual school system into a unitary non­
racial system but conflicts with decisions of the Fourth and 
Sixth Circuits which also require reorganization. Jones v. 
School Board of the City of Alexandria, supra and North- 
cross v. Board of Education of the City of Memphis, supra.

3. The decision below also conflicts with the decision of 
the Sixth Circuit in Northcross v. Board of Education City 
of Memphis, 302 F. 2d 818 (6th Cir. 1962) enjoining use 
of the Tennessee Pupil Assignment Law as a vehicle for 
desegregating the public school system of Memphis which,



13

like Atlanta’s plan, requires Negroes to apply for that to 
which they are already entitled. The Atlanta plan incorpo­
rated 17 criteria of the Alabama Pnpil Placement Law 
which had been held constitutional on its face by this Court 
with the. admonition that it might subsequently be held un­
constitutional with respect to its administration. Shuttles- 
worth v. Board of Education of the City of Birmingham, 
supra. The Sixth Circuit has barred use of Tennessee’s 
Pupil Assignment Law as a plan of desegregation whereas 
the opinion below, in effect, adopts the Alabama Pupil 
Placement Law as a plan of desegregation.8 Again, the 
Fifth Circuit had previously ruled that the Florida Pupil 
Assignment Law, standing alone, was not a plan of desegre­
gation. Gibson v. Board of Public Instruction, 272 F. 2d 767 
(5th Cir. 1959) and 246 F. 2d 913 (5th Cir. 1957) and 
Augustus v. Board of Public Instruction, 306 F. 2d 862 (5th 
Cir. 1962).

Petitioners here had challenged by their motion for fur­
ther relief the application of the Atlanta plan. Petitioners 
claimed first that the plan had not been used to bring 
about desegregation but had been used to maintain segre­
gation. Admission of 10 Negroes out of 129 in September 
1961 and 44 out of 266 in September 1962 pursuant to 
criteria applied only to these Negro applicants seeking 
transfer to white schools, established beyond question the 
discriminatory application of the plan. The majority did 
not direct the District Court to enjoin discriminatory 
application of the plan. Instead, it ruled that petitioners 
should first have complained of their grievances with 
respect to the administration of the plan to the Board 
and, upon the Board’s failure to remedy same, appeal to 
the District Court. Even upon rehearing the majority did

8 The Tennessee and Alabama Pupil Assignment Laws are essen­
tially identical in all material respects. Compare Tenn. Code Ann. 
§§ 49-1741 to 49-1763 with Code of Ala. (Recompiled) §§ 61(1) to 
61(11).



14

not direct the District Court to enjoin discriminatory 
application of the plan and again assumed that the cor­
rective action which it outlined in its opinion would be 
taken by the Board, and if not, that petitioners would return 
once again to the District Court and again seek an end to 
discriminatory application of the plan.

• Petitioners say, however, that Atlanta, as this Court 
warned in the Shuttlesworth case, having administered a 
pupil assignment plan in an unconstitutional manner, 
should have been enjoined from further use of the plan.
Bailey v. Pattersonp------  F. 2 d ------ (5th Cir., Sept. 24,
1963, not yet reported). Atlanta has demonstrated by its 
failure to apply all criteria to all students in even a single 
grade the manifest impracticability for a school board 
the size of Atlanta to administer any such onerous pupil 
assignment plan.

The majority opinion, therefore, conflicts not only with 
the opinion of the Sixth Circuit in the Northcross case 
barring use of a pupil assignment law as a vehicle for 
desegregation but conflicts with the clear warning of this 
Court in the Shuttlesworth case concerning unconstitu­
tional administration of a pupil assignment law.,

4. Another major prop of the segregated school system 
which the majority opinion leaves standing is the segre­
gated staff. In Atlanta, as elsewhere, the schools are 
segregated not only because in every seat in a Negro school 
is a Negro child but in front of every class is a Negro 
teacher. Atlanta goes further, as do other school dis­
tricts, in placing all Negro schools under the direction of 
a Negro Supervisor (R. 107, 145, 171).

The District Court in this case postponed indefinitely 
consideration of the assignment of Negro teachers on a 
nonracial basis. Again, such deferment, per se, is con­
trary to this Court’s admonition in Watson and Goss v.



15

Board of Education of City of Knoxville, 373 U. S. 683, 
that the time has come for full compliance with this Court’s 
decision and the end of built-in devices for maintaining 
segregation. Contrary to the opinion of this Court and 
other circuits, clearly indicating that the relief to be 
afforded in these cases encompasses the entire school sys­
tem, including personnel, Brown v. Board of Education of 
Topeka, 349 U. 8. 294, 300-301 (1955); Northcross v. Board 
of Education of the City of Memphis, supra,, at p. 819; 
Jackson v. School Board of the City of Lynchburg, supra, 
at p. 233, the court below postponed without day considera­
tion of this problem.

5. The additional vice of the opinion below is that un­
reversed the majority opinion means that soon another 
whole generation of Negro students will graduate from 
Atlanta’s “ separate but equal” public school system with 
the promise of equality made in 1954 unredeemed. As this 
Court said in Watson v. City of Memphis, supra, at p. 535: 
“ The rights here asserted are, like all such rights, present 
rights; they are not merely hopes to some future enjoy­
ment of some formalistic constitutional promise. The basic 
guarantees of our Constitution are warrants for the here 
and nowT and, unless there is an overwhelmingly compel­
ling reason, they are to be promptly fulfilled.” Not only 
is the result of the majority opinion inconsistent with the 
great promise of equality envisioned by this Court’s 1954 
decision, but the majority opinion^ so clearly guarantees 
the continuation of “ separate but equal” that three other 
major school districts, Savannah, Georgia, Birmingham, 
Alabama and Mobile County, Alabama, ordered to com­
mence desegregation in September 1963, by the Fifth Cir­
cuit, pending appeal, immediately adopted the Atlanta 
plan which had just been approved. As a result, Savannah 
admitted 21 Negro students to the twelfth grade out of a 
school population of 24,013 whites and 15,336 Negroes.



16

Birmingham admitted 5 to the twelfth grade out of a 
school population of 37,500 whites and 34,834 Negroes. 
Mobile County admitted 2 to the twelfth grade out of a 
school population of 47,247 whites and 30,020 Negroes.9 
The majority opinion thus has established the pattern of 
the future.

CONCLUSION

For the foregoing reasons, this Petition for a Writ of 
Certiorari should be granted.

Bespectfully submitted,

Constance B aker M otley 
J ack  Greenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N. E. 
Atlanta, Georgia

D onald L . H ollowell
Cannolene Building (Annex) 
859% Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Petitioners

N orman A maker 
A . T . W alden 
J. L eV onne C hambers

Of Counsel

9 See Southern School News, Sept. 1963, p. 2, col. 3; p. 3, cols. 2-4- 
p. 8, col. 1; id., Oct. 1963, p. 10, col. 3.



APPENDIX



A P P E N D IX

Opinion o f  Hooper, District Judge

Nov. 15, 1962.

UNITED STATES DISTRICT COURT 

N. D. G eorgia— A tlanta  D ivision 

Civ. A. No. 6298.

V ivian  Calh o u n , et al.

A. 0. L atim er , et al.

H ooper, District Judge.

S tatem ent  of the  Case.

This Court on January 20, 1960 approved a Plan of 
desegregation proposed by defendant Atlanta Board of 
Education. Details of that Plan may be obtained by refer­
ence to Calhoun v. Members of Board of Education, D. C., 
188 F. Supp. 401 and D. C., 188 F. Supp. 412. On Sep­
tember 13, 1960 the Court provided the Plan in question 
should begin in September, 1961 and apply to the eleventh 
and twelfth grades of the schools. The Plan has been in 
operation for the two school years beginning September, 
1961 and September, 1962 respectively, and pursuant 
thereto fifty-three Negro students have transferred from 
schools previously Negro schools to schools previously all 
white schools. This was done peaceably and without vio­
lence, largely due to the unusually effective methods em­



2a

Opinion of Hooper, District Judge

ployed by the Mayor of Atlanta, its Chief of Police, and all 
groups working in concert with them.

The Plan adopted by this Court on January 20, 1960 was 
the Plan which was adopted upon the insistence of plain­
tiffs in order to comply with the mandates of the United 
StateTBupreme Court and other courts, to the effect that 
discrimination should cease and that compulsory segrega­
tion should no longer be enforced in the Atlanta Public 
Schools.

It is significant to note that the Plan in question at the 
time of its adoption met with the approval of these plain­
tiffs. An appeal from this Order of Court was filed but 
upon motion of the plaintiffs was permitted to be dismissed 
by the Court of Appeals.

G rounds of th e  M otion .

A large part of the motion filed April 30, 1962 is couched 
in vague and indefinite terms and is largely a repetition of 
charges made against defendants concerning discrimination 
before the Plan had been put into operation. Thus plain­
tiffs seek an injunction against defendants “ from continu­
ing to maintain and operate a segregated bi-racial school 
system,” from “ continuing to assign pupils to the public 
schools upon the basis of race and color,” from “ continuing 
to designate schools as Negro or white,” from maintaining 
“ racially segregated extracurricular school activities.”

Complaint is also made of alleged assigning of teachers 
and others on basis of race and color and maintaining a 
dual system of school attendance area lines.

[1, 2] There is no disputing that discrimination had 
existed prior to the Order of this Court of January 20, 
1960, and that the Order of that date was designed to elimi-



3a

nate the discrimination over a period of years. Even plain­
tiffs’ counsel upon the original trial disclaimed any purpose 
of seeking to have “wholesale integration.” The only ques­
tion then involved was the plan by which discrimination 
could be eliminated; a Plan was carefully prepared and 
adopted and no appeal taken. The Plan is eliminating 
segregation, but until it has completed its course there will 
of course still be areas (in the lower grades) where segre­
gation exists. The Court is therefore at a loss to see how 
anything could be accomplished at this time by “ an order 
enjoining defendants from continuing to maintain and 
operate a segregated, bi-racial school system,” for the 
Court has already taken care of that in its decree of Janu­
ary 20, 1960. There is no evidence that defendants are 
“ continuing to designate schools as Negro or white,” nor 
that they are maintaining “ racially segregated extra­
curricular school activities.”

The assigning of teachers and other personnel on the 
basis of race and color is not now passed upon but is de­
ferred (as other courts have done) awaiting further prog­
ress made in the desegregation of the students.

[3] The objection to said Plan of Desegregation which 
most impressed this Court related to the charge that it 
caused discrimination between a Negro transferring to a 
grade in a previously white school, in that certain tests 
were required for the transfer to which the white students 
promoted to the same grade were not subjected. At the 
hearing of this motion, however, it appeared without dis­
pute that defendants beginning in September 1962 had 
ceased using the tests required of transfers as used there­
tofore. In lieu thereof as of September 1962 the school 
authorities gave to all pupils in the school system a nation­
ally recognized test known as the “ School and College Abil-

Opinion of Hooper, District Judge



4a

ity Test” (SCAT). (See Transcript, p. 22.) Testimony of 
Superintendent John Letson shows that this test was given 
to all students, Negro and white, and this testimony was not 
disputed. Proximity of the pupil to the school involved was 
also considered by the Board, as were certain other criteria 
contained in the Plan approved by this Court on January 
20, 1960.

[4] Neither does the evidence show that defendants are 
maintaining a “ dual system of school attendance area 
lines.” Proximity to the schools in question is a factor con­
sidered by the defendant Board. It is not shown that de­
fendants are acting arbitrarily in connection with the 
assignment of pupils in relation to their distance from the 
school. It does appear that area lines (where such exist) 
are sometimes changed for the sole purpose of relieving 
over-crowded conditions in the schools.

P lain tiffs ’ P roposed N ew  P l a n .

[5] The original motion filed by plaintiffs on April 30, 
1962 made certain attacks on the Plan of Desegregation 
established January 20, 1960, but did not make any com­
plaint that the Plan contemplated too much time for the 
completion of the desegregation. Not until the Court re­
quiredAhe parties Jo' file Findings of Fact and Conclusions 
of Law did it occur to plaintiffs to make any effort to speed 
up the transition^ However, on July 20, 1962 plaintiffs filed 
a paper entitled “Plaintiffs’ Proposed Plan of Desegrega­
tion,” which does bear some similarity to the Plan adopted 
by the Court on January 20, 1960, already in operation for 
a period of two years. However, the Proposed Plan accel­
erates the dates to which the various grades might be in­
tegrated (which in September 1963 include the ninth, tenth,

Opinion of Hooper, District Judge



5a

eleventh and twelfth grades) so that in September 1965 “ all 
pupils and personnel in grades one, two and three shall be 
desegregated in the same manner in which the other grades 
are desegregated, as set forth above.”

This suggestion by plaintiffs’ counsel that the Court sum­
marily speed up the Plan already adopted without any 
evidence to show that the new Plan is practicable or feasi­
ble, is no doubt inspired by one or more recent decisions by 
appellate courts which do summarily establish a Plan of 
Desegregation. In all such instances, however, that action 
was taken by appellate courts because the school authorities 
in question had not proposed a Plan, or the district judge 
in question had not ordered a Plan. This Court finds no 
precedent for a trial judge summarily changing and speed­
ing up a Plan, already in operation for two years, without 
some facts or circumstances requiring the same.

When this Court approved the Plan on January 20, 1960 
many local conditions mitigating against a more speedy 
transition were considered (see 188 P. Supp. 401), these 
factors included the following:

There were in Atlanta 116,000 pupils, of which approxi­
mately forty per cent, or some 46,400, were Negroes. There 
was a rapid influx of children of school age into the city and 
a shortage of some 580 class rooms, many classes then being 
held in churches and other buildings, and many having 
double sessions. Other problems confronted the School 
Board, caused by slum clearances and changes in residen­
tial patterns, to which may now be added complications 
arising out of large tracts of land being condemned for 
expressways.

The United States Supreme Court has ordered that seg­
regation be eliminated “with deliberate speed,” and has 
invested the trial judges in the first instance with some

Opinion of Hooper, District Judge



6a

discretion, bearing in mind all local conditions, as to the 
timing of a Plan of Desegregation. The Plan heretofore 
approved by this Court, and now under attack, has been 
administered fairly and in good faith by defendant Atlanta 
Board of Education, the local authorities have given utmost 
cooperation in maintaining law and order, and the number 
of students being transferred each year from previously 
designated colored schools to previously designated white 
schools is increasing at an accelerated rate each year as the 
lower grades are reached. This Court feels that the public 
interests demand that the Plan now in operation be con­
tinued according to its terms and not be summarily dis­
placed by the new Plan of Desegregation proposed by 
plaintiffs.

For reasons set forth above plaintiffs’ motion for further 
relief and plaintiffs’ motion to adopt a Proposed New Plan 
of Desegregation are denied.

Opinion of Hooper, District Judge



7a

I n t h e

UNITED STATES COURT OF APPEALS 
F or th e  F if t h  C ircuit 

No. 20273

Opinion o f Bell, Circuit Judge

V ivian  Calh o u n , et al., Infants, by  F red Calh o u n , 
their father and next friend, et al.,

—versus-
Appellants,

A. C. L atim er, et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF GEORGIA.

(June 17, 1963)

Before R ives, L ew is* and B ell , Circuit Judges.

B ell , Circuit Judge:

I.

This appeal from an order denying a motion for further 
relief brings up for review, for the first time,* 1 the plan for 
the desegregation of the Atlanta school system. The plan

* Of the Tenth Circuit, sitting by designation.
1 Appellants filed notice of appeal from the order of the court 

dated March 9, 1960 refusing to make the plan effective for the 
school term 1960-61 but dismissed the appeal.



8a

was formulated pursuant to court order, and approved by 
the court on January 20, 1960. It became effective on May 
1, 1961 for the school term 1961-62 beginning in September 
1961. It was applied to the twelfth and eleventh grades 
at that time for the purposes of desegregation, to the tenth 
grade beginning with the 1962-63 school term, and will be 
applied to the ninth grade beginning with the 1963-64 school 
term. It is to be applied progressively to the next succeed­
ing grade each school term thereafter until all grades in the 
school system have been included, and desegregated.

The sequence of events in this case began with the filing 
of a complaint on January 11, 1958 by appellants seeking 
the equal protection of the laws guaranteed by the Four­
teenth Amendment to the Constitution; Brown v. Board of 
Education of Topeka, 1954, 347 U. S. 483, 74 S. Ct. 686, 98 
L. Ed. 873, having proscribed racial discrimination in public 
education. The District Court had first enjoined appellees, 
members of the Board of Education of the City of Atlanta, 
and the school superintendent, from enforcing and pursu­
ing the policy, practice, custom, and usage of requiring or 
permitting racial segregation in the operation of the 
schools, and from engaging in any and all action which lim­
ited or affected admission to, attendance in, or the educa­
tion of the appellant children, or any other Negro children 
similarly situated, in the schools on the basis of race. A 
reasonable period of time was allowed within which to com­
ply with the order, and for bringing about a transition to a 
school system not operated on the basis of race. The school 
board was required to present a plan on or before Decem­
ber 1, 1959 designed to bring about compliance with the 
order, and which would provide for a prompt and reason­
able start toward desegregation of the public schools of 
Atlanta, and a systematic and effective method for achiev­
ing such desegregation with all deliberate speed.

Opinion of Bell, Circuit Judge



9a

A  plan was submitted, contingent upon the enactment of 
statutes by the State of Georgia permitting the same to be 
put into operation. It provided procedures of uniform ap­
plication for the assignment, transfer, or continuance of 
pupils among and within the schools of the system. The 
plan was largely modeled upon the placement law approved 
as constitutional on its face in Shuttlesworth v. Birmingham 
Board, of Education, 1ST. D. Ala., 1958, 162 F. Supp. 372, 
affirmed, 358 U. S. 101,79 S. Ct. 221, 3 L. Ed. 2d 145. It was, 
however, amended in various respects by court order before 
final approval to meet some of the objections of appellants. 
There was also objection to the plan being contingent upon 
changes in the state laws which then required segregated 
schools, under penalty, among others, of loss of state finan­
cial support. The court limited the contingency to one year 
and included two grades in the plan for the first year of its 
operation. It was to be invoked for the 1961-62 school year 
in any event. See Calhoun v. Members of Board of Educa­
tion, City of Atlanta, N. D. Ga., 1959, 188 F. Supp. 401, 188 
F. Supp. 412.

Opinion of Bell, Circuit Judge

II.

The Georgia laws were changed, obviating harm to public 
education, and making it possible for the plan of the school 
board to proceed on schedule. Schools were no longer classi­
fied as white or Negro, but the plan did contemplate that 
each child would continue in the school to which assigned 
for the then present school term unless and until trans­
ferred, on request, to another school. Applications for 
transfer were to be filed between May 1 and May 15 in each 
school year. This was the method of transition agreed upon 
rather than some other plan requiring reassignment by 
school officials. Any child was free to seek transfer to the 
grades within the plan.



Opinion of Bell, Circuit Judge

Some three hundred Negro children and one white child 
obtained application forms for transfer for the 1961-62 
term. Only one hundred and thirty of these were actually 
filed by Negro children. Ten of these were granted and re­
assignment was made to the eleventh and twelfth grades of 
formerly white schools. The transfer sought by the white 
child out of one of these schools because Negroes were to 
be admitted was denied.. See Stone v. Members of the Board 
of Education City of Atlanta, 5 Cir., 1962, 309 F. 2d 638. 
At this time there were one hundred thirteen elementary 
schools, grades one through seven, and twenty-two high 
schools, grades eight through twelve, in Atlanta. There 
were no junior high schools. Forty-one of the elementary 
schools were all Negro in attendance while seventy-two were 
all white. This is still true since the plan has not reached 
the elementary grades. There were five all Negro and sev­
enteen all white high schools. This latter number was re­
duced to thirteen by the transfer of the ten Negro students. 
Forty-four additional Negro students, out of some two hun­
dred sixty-six requesting transfer, were transferred, to 
white high schools for the 1962-63 term resulting in the 
desegregation of seven additional formerly all white 
schools. The result to date is that there are eleven inte­
grated high schools in Atlanta, five all Negro high schools 
and six all white high schools.

Special intelligence tests were given those students seek­
ing transfer under the plan in 1961, but this requirement 
was abandoned prior to 1962; thus, our discussion will cen­
ter on the practices and procedures required under the plan 
for 1962. Only a few of the seventeen factors or criteria set 
out in the plan were used. A scholastic ability and achieve­
ment test routinely given to every child in the grades in 
question in the school system was used in considering the



11a

applications. The standard used was that the transferee 
had to score a grade at least equal to the average of the 
class in the school to which transfer was requested. Such a 
requirement is, of course, discriminatory per se when ap­
plied only to Negro students. Proximity of the residence of 
the student to the school in question, subject to variation 
for educational reasons, and also the reasons given on the 
application for the requested transfer were other factors 
used. Each student was also given a personality interview 
by school officials to determine probable success or failure 
in the new school.2 * 4

When the plan became effective, all students in the grades 
to be segregated were already assigned to high schools. 
Thus, the plan to date encompasses only those students 
wishing to transfer, and new students entering a school for 
the first time in the desegregated grades. However, it has 
not been applied to new students, nor to those students 
being transferred at times other than during the period 
May 1 to May 15 under the plan. Transfers, other than 
during this period, not substantial in number, are known 
to the school board as informal transfers, and are to be 
distinguished from transfers under the plan, called formal 
transfers.

There is no evidence that the criteria applied in informal 
transfers were racially discriminatory as among informal 
transferees,. but they were apparently different from the 
criteria applied in formal transfers. The school superin­
tendent testified that the criteria applied in formal transfers

Opinion of Bell, Circuit Judge

2 Such solicitude has rightly been condemned where applied only
to Negroes, Green v. School Board of the City of Roanoke, Virginia,
4 Cir., 1962, 304 F. 2d 118, although it would appear, where done 
in good faith, and there is no contrary contention here, to lend 
itself, at least in the early days of transition, to assuring the suc­
cess of a plan.



12a

included the reason given by the student for requesting 
transfer, tests that were a part of his permanent record, 
grades, teacher opinion and educational judgment as to 
whether the request, for these reasons, would be educa­
tionally justified. Also considered was proximity of resi­
dence to school and the capacity of the school. The 
difference in the requirements for formal and informal 
transfers, in the main, was that no personality interview 
was required for informal transfers, nor does it appear 
that the standard of scholastic ability basis was the same.

The form used in requesting transfers as well as the plan 
itself is designed to apply in the admission and assignment 
procedure, as well as in the transfer procedure. The Dis­
trict Court said in this regard:

“ Essentially the Plan contemplates that all pupils 
in the schools shall, until and .unless transferred to 
some other school, remain where they are, all new and 
beginning students being assigned by the Superintend­
ent or his authority to a school selected by observance 
of certain standards as set forth in the proposed Plan.” 
188 F. Supp. 401, 406, supra.

Not one of the Negro applicants for transfer has com­
plained individually to the District Court at any time. The 
case is still proceeding as a class action. Both appellants 
and the school board were satisfied to rely largely on the 
testimony of the school superintendent. His testimony in 
substance was that the board was abiding the letter and the 
spirit of the plan approved by the court. Pupils were as­
signed to schools they attended the previous year in order 
to establish a base from which they were free under the plan 
to request a transfer. He contended that the Atlanta school 
system was desegregated and pointed out that all mention

Opinion of Bell, Circuit Judge



13a

oi race had been removed from the school directory, official 
reports, building programs, and all other classifications. 
Schools are no longer designated as white or Negro. Negro 
students assigned to previously all white schools partici­
pated in both regular and extra-curricular activities, includ­
ing honor banquets, clubs and other activities on the basis of 
free choice, and their parents attended Parent-Teacher As­
sociation meetings, athletic events, graduation programs 
and other school activities free of racial discrimination. 
School events to which the public is invited are not segre­
gated, nor are meetings of professional committees.

He testified that there were no attendance areas or zone 
lines established by the board, but that lines are sometimes 
drawn administratively between schools in an attempt to 
equalize class loads. There was no evidence before the 
court that they were based on race. The Atlanta system is 
divided into five sub-areas with an assistant superintendent 
in charge of each area. One sub-area has only all Negro 
schools in it, but there is no evidence of white children liv­
ing in it, or that it resulted from gerrymandering.8

Another pertinent fact is that there is overcrowding in 
the school system particularly in those schools still having 
all Negro populations, with additional schools being needed. 
Some white schools are under populated. The growth in 
the school population in recent years is almost entirely 
Negro, with considerable change in area patterns from the 
standpoint of changing from white to Negro residents. 3

Opinion of Bell, Circuit Judge

3 The dearth of evidence probably results from the parties each 
taking the position that the burden of proof was on the other. 
The burden is plainly on the board to justify the plan and the 
delay under it. Having done so and having obtained the approval 
of the court, we think that the burden shifted to appellants to at 
least make a prima facie showing that changes were in order.



14a

The District Court in this case, after hearing all evidence 
offered, and full arguments, held:

“ There is no disputing that discrimination had ex­
isted prior to the Order of this Court of January 20, 
1960, and that the Order of that date was designed to 
eliminate the discrimination over a period of years. 
Even plaintiffs’ counsel upon the original trial dis­
claimed any purpose of seeking to have ‘wholesale in­
tegration.’ The only question then involved was the 
plan by which discrimination could be eliminated; a 
Plan was carefully prepared and adopted and no appeal 
taken. The Plan is eliminating segregation, but until it 
has completed its course there will of course still be 
areas (in the lower grades) where segregation exists. 
The Court is therefore at a loss to see how anything 
could be accomplished at this time by ‘an order enjoin­
ing defendants from continuing to maintain and oper­
ate a segregated, biraciai school system,’ for the Court 
has already taken care of that in its decree of January 
20, 1960. There is no evidence that defendants are 
‘continuing to designate schools as Negro or white,’ nor 
that they are maintaining ‘racially segregated extra­
curricular school activities.’

“ The assigning of teachers and other personnel on 
the basis of race and color is not now passed upon but 
is deferred (as other courts have done) awaiting fur­
ther progress made in the desegregation of the stu­
dents.

#  #  *  #  #

“ Neither does the evidence show that defendants are 
maintaining a ‘dual system of school attendance area 
lines.’ Proximity to the schools in question is a factor 
considered by the defendant Board. It is not shown

Opinion of Bell, Circuit Judge



15a

that defendants are acting arbitrarily in connection 
with the assignment of pupils in relation to their dis­
tance from the school. It does appear that area lines 
(where such exist) are sometimes changed for the sole 
purpose of relieving overcrowded conditions in the 
schools.

#  *  #  #  #

“ . . . The Plan heretofore approved by this Court, 
and now under attack, has been administered fairly and 
in good faith by defendant Atlanta Board of Educa­
tion, the local authorities have given utmost coopera­
tion in maintaining law and order, and the number of 
students being transferred . . . from previously desig­
nated colored schools to previously designated white 
schools is increasing at an accelerated rate each year as 
the lower grades are reached. This Court feels that 
the public interests demand that the Plan now in opera­
tion be continued according to its terms and not be 
summarily displaced by the new Plan of Desegregation 
proposed by plaintiffs.” Calhoun v. Latimer, N. D. Ga., 
1962,------F. Supp.------- , 7 Race Rel. L. Rep. 1054.

III.
The questions presented may be reduced to four in num­

ber. First, can the Atlanta plan be justified in the light of 
the results of its operation to date, and in view of the teach­
ings of Brown, supra, the second Brown case, 1955, 349 
IT. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, Cooper, infra, and 
the most recent decisions of this court, handed down long 
after the, Atlanta plan became effective. Bush v. Orleans 
Parish School Board, 5 Cir., 1962, 308 F. 2d 491; and Au­
gustus v. The Board of Public Instruction of Escambia 
County, Florida, 5 Cir., 1962, 306 F. 2d 862. Second, assum-

Opinion of Bell, Circuit Judge



16a

ing that it may, has it been applied in a discriminatory man- 
ner? This includes the questions of admission, assignment, 
transfers, both formal and informal, and extra-curricular 
activities. Third, was it error for the District Court to post­
pone consideration of the practice relating to the assign­
ment of teachers? Fourth, did the court err in not speeding 
up the plan as suggested by appellants?

And with these facts before us, we begin the consideration 
of the questions presented with the mandate of the Supreme 
Court in the second Brown opinion in mind. There the 
court, with regard to eliminating racial discrimination in 
public education following its decision in the first Brown 
case, supra, said:

“ Full implementation of these constitutional princi­
ples may require solution of varied local school 
problems. School authorities have the primary respon­
sibility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the 
action of school authorities constitutes good faith im­
plementation of the governing constitutional principles. 
Because of their proximity to local conditions and the 
possible need for further hearings, the courts which 
originally heard these cases can best perform this 
judicial appraisal. . . .

“ In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi­
tionally, equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility for 
adjusting and reconciling public and private needs. 
These cases call for the exercise of these traditional 
attributes of equity power. At stake is the personal 
interest of the plaintiffs in admission to public schools 
as soon as practicable on a nondiscriminatorv basis.

Opinion of Bell, Circuit Judge



17a

To effectuate this interest may call for elimination of 
a variety of obstacles in making the transition to school 
systems operated in accordance with the constitutional 
principles set forth in our May 17, 1954, decision. 
Courts of equity may properly take into account the 
public interest in the elimination of such obstacles in a 
systematic and effective manner. But it should go with­
out saying that the vitality of these constitutional prin­
ciples cannot be allowed to yield simply because of 
disagreement with them..

“ While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full com­
pliance with our May 17, 1954, ruling. Once such a 
start has been made, the courts may find that additional 
time is necessary to carry out the ruling in an effective 
manner. The burden rests upon the defendants to es­
tablish that such time is necessary in the public interest 
and is consistent with good faith compliance at the 
earliest practicable date. To that end, the courts may 
consider problems related to administration, arising 
from the physical condition of the school plant, the 
school transportation system, personnel, revision of 
school districts and attendance areas into compact 
units to achieve a system of determining admission to 
the public schools on a nonracial basis, and revision 
of local laws and regulations which may be necessary 
in solving the foregoing problems. They will also con­
sider the adequacy of any plans the defendants may 
propose to meet these problems and to effecutate a 
transition to a racially nondiscriminatory school sys­
tem. During this period of transition, the courts will 
retain jurisdiction of these cases.”

Opinion of Bell, Circuit Judge



18a

And see Cooper v. Aaron, 1958, 358 U. S. 1, 78 S. Ct. 1401, 
3 L. Ed. 2d 5, where, after reiterating what was said in the 
Brown implementation decision, and the investiture of su­
pervisory powers in the District Courts for the necessary 
transition from segregated to desegregated school systems, 
the court said:

“Under such circumstances, the District Courts were 
directed to require ‘a prompt and reasonable start 
toward full compliance,’ and to take such action as was 
necessary to bring about the end of racial segregation 
in the public schools ‘with all deliberate speed.’ . . .  Of 
course, in many, locations, obedience to the duty of 
desegregation would require the immediate general ad­
mission of Negro children, otherwise qualified as 
students for their appropriate classes, at particular 
schools. On the other hand, a District Court, after anal­
ysis of the relevant factors (which, of course, excludes 
hostility to racial desegregation), might conclude that 
justification existed for not requiring the present non- 
segregated admission of all qualified Negro children. 
In such circumstances, however, the courts should 
scrutinize the program of the school authorities to 
make sure that they had developed arrangements 
pointed toward the earliest practicable completion of 
desegregation, and had taken appropriate steps to put 
their program into effective operation. . .

Nothing then could stay the inexorable hand of the Con­
stitution in this regard. Some school boards complied with­
out the intervention of the courts. Others acted under court 
order, as did the Atlanta board. The cases arising are 
myriad, but each, with respect to transition, goes back to 
the fountainhead, Brown and Cooper. Does the plan as

Opinion of Bell, Circuit Judge



19a

conceived and administered comport with the constitutional 
mandate and the duty imposed on school boards and Dis­
trict Courts? Gradualism in desegregation, if not the usual, 
is at least an accepted mode with the emphasis on getting 
the job of transition done.

Opinion of Bell, Circuit Judge

IV.
The questions here may be the better discerned in the 

background of what appellants offered by way of a plan 
in the District Court. The plan proposed by them in con­
nection with the motion for further relief which is the sub­
ject matter of this appeal suggested a speed up of five years 
in the original twelve year plan for transition. Their sug­
gestion was that grades eight and nine rather than nine be 
desegregated in September 1963. They would desegregate 
grades four, five, six and seven in September 1964, and 
grades one, two and three in September 1965. They would 
reassign all high school teachers, counselors, principals and 
supervisors prior to the opening of school in September 
1963 on the basis of qualification and need without regard to 
race or color. The same procedure would be followed as to 
such personnel on the succeeding years in connection with 
the proposed desegregation procedure. All school spon­
sored, school related, school supported, school sanctioned 
extra-curricular school activities would be open to all 
qualified students without regard to race or color as each 
grade is desegregated. Desegregation would be provided on 
the basis of drawing school zone lines for each school and 
assigning all children living in the zone to the school with­
out regard to race or color. It is this last suggestion that is 
the bare bones of this case and which gives rise to the first 
question.



20a

Appellants do not object to a gradual plan. They do seek 
to speed it up from a twelve to a seven year span for accom­
plishment. What they object to is that feature of the court 
approved plan that permits the continued assignment of 
those children already in school to the same schools with the 
right to transfer. This question has not heretofore been 
before this court. We held in Bush v. Orleans Parish School 
Board, supra, and in Augustus v. The Board of Public In­
struction of Escambia County, Florida, supra, that dual 
school districts must be abolished as they related to the 
grades being desegregated. We have never laid out a 
method of abolishment, or adopted a policy of absolutism. 
The Atlanta plan of abolishment is one of gradualism by 
permitting transfers from present assignments. The New 
Orleans plan in Bush, formulated by the District Court in­
stead of the school board, begins with the first grade. It rec­
ognizes the dual system and provides for its elimination by 
permitting the children, at their option, to attend either the 
formerly all white or all Negro school nearest their homes, 
with transfers to be allowed provided they are not based on 
consideration of race. The Houston plan which was also 
court formulated, R.oss v. Dyer, 5 Cir., 1962, 312 F. 2d 191, 
is substantially like that of New Orleans. We do not yet 
know what method of eliminating the dual system is to be 
used in the Escambia County case. Even if it may be said 
that there is a dual system in Atlanta, and the evidence does 
not so disclose,4 it can also be said that there is an option 
under the Atlanta plan just as there is under the New Or­
leans and Houston plans, assuming the plan is applied to 
transfers as well as assignments of all new students in

4 The dual system undoubtedly continues in the grades not yet 
reached by the plan. It exists in residual form in the grades 
reached because desegregation has not reached the elementary school 
grades which feed the high schools.

Opinion of Bell, Circuit Judge



21a

desegregated grades, and is not based on consideration of 
race.

This court disapproved one feature, in the nature of an 
option, of a plan for desegregating the Dallas school system 
which afforded a modicum of freedom of choice by permit­
ting transfers on the basis of race. Boson v. Rippy, 5 Cir., 
1960, 285 F. 2d 43. The Supreme Court has now affirmed 
this position in holding invalid similar features in plans of 
the Nashville and Knoxville school systems. Goss v. Board
of Education, City of Knoxville, Tenn.,------U. S . ------- , 31
L. W. 4559, No. 217, Oct. term, 1962. But, as this court was 
at pains to say in Boson v. Rippy, a school board has ample 
authority to transfer pupils from school to school upon any 
reasonable and legitimate basis without regard to race or 
color. The New Orleans and Houston plans contain provi­
sions in point. The Charlottesville, Virginia plan also dem­
onstrates this teaching. Once assignments have been made 
there on the basis of residence, transfers are permitted upon 
request of parents or students, and school officials are to 
take into account residence, academic qualifications, per­
sonal desires, need for particular courses, school enrollment, 
available teaching personnel and physical facilities, and 
“ other lawful and objective considerations” , but the court 
made it clear upon review of the plan that race cannot be 
a consideration. Dodson v. School Board of the City of 
Charlottesville, 4 Cir., 1961, 289 F. 2d 439.

The Bush and Escambia County cases forbid dual school 
districts. They authorize the option system. Boson v. 
Rippy permits transfers out of single or integrated dis­
tricts if not based on race. The Atlanta plan when con­
sidered in its over-all scope falls within the ambit of these 
bench marks, if properly and fairly administered. We 
understand its scope, and it must be so applied, to include

Opinion of Bell, Circuit Judge



22a

application to the assignment of any student new to a 
school for admission in a desegregated grade. It is to be 
applied to all transfers, be they formal, informal or other­
wise.

The main thrust or force of its application will be in the 
admission and assignment from elementary to high schools, 
and to the first grade. This means that for the school 
term beginning in September 1964, the plan will lay hold 
of the feeder system for the first time. This follows from 
the fact that such factors as are used for assignment and 
transfer must be used system wide in the assignment and 
transfer of seventh grade students to the eighth grade 
since they will be moving from one school to another, ele­
mentary to high school. This will remove even the residuum 
of the dual system from this grade, and will rapidly dissi­
pate it from the other high school grades as other succeed­
ing elementary grades reach the eighth grade. The dual 
system will be entirely eliminated when the plan reaches 
the first grade.

The unique Atlanta plan of desegregation from the top 
down operates in fits and starts when compared with what 
has become the almost universal plan of starting in the 
first grade and working up. Nevertheless, it is the one 
approved and used to date, and it appears that the end 
mandatory result of a desegregated system will be accom­
plished under it. And while the progress to date is not 
looked on with favor by appellants, it may be noted that 
other results are being attained that are not present in 
those systems following plans beginning with the first 
grade. These have to do with the desegregated extra­
curricular activities that exist in high schools, but not in 
elementary schools, such as honor societies, athletics, clubs, 
graduation activities and the like. The importance of 
these results cannot be gainsaid.

Opinion of Bell, Circuit Judge



23a

The decision reached in this case is in the light of the 
fact that there is no evidence that the Atlanta School 
Board has acted other than in the utmost good faith 
throughout this litigation. There is no evidence that the 
District Judge has proceeded except in the highest tradi­
tion of the federal courts, and in a persistent and wise 
manner to accord appellants their constitutional rights 
while at the same time preserving the educational process 
in the transition period.

Our decision must also be rendered upon a consideration 
of the most recent pronouncements of the Supreme Court, 
Goss v. Board of Education, City of Knoxville, Tenn., su­
pra, and Watson v. City of Memphis, ——  U. S. ------ , 31
L. W. 4498, No. 424, October term, 1962, which makes it plain 
that the time available for the transition from segregated 
to desegregated school systems is, with the passage of years 
since the Brown decisions, becoming more sharply limited. 
Indeed, we so stated in an opinion theretofore rendered 
on May 24, 1963. Davis v. Board of School Commissioners
of Mobile County,------F. 2 d ------- . But, on the same day,
where a District Court had refused a temporary injunction 
in a school case, the same panel ordered an immediate start 
on a one grade per year basis. Stell v. Savannah-Chatham
County Board of Education, ------- F. 2d ------  (opinion by
C.J. Tuttle, concurring, JJ. Rives and Bell). This is said to 
point up that each case stands to a large extent on its own. 
There is no circuit-wide formula or minimum by which to 
measure steps forward or backward, and no decision has 
so suggested. Good faith and substantial progress are the 
indispensable ingredients.

So considered, we hold that there is insufficient evidence 
on which to base a determination that the start made in the 
Atlanta schools is not reasonable, or that the plan is not 
proceeding toward the goal at deliberate speed. The court

Opinion of Bell, Circuit Judge



24a

did not err in denying the speed up. It was a discretionary 
matter, and there is no showing of an abuse of discretion, 
in law or in fact.

Nor did the court err in failing to substitute the absolute 
zone plan as suggested for the present plan to accomplish 
acceleration. There was no evidence before the District 
Court from which an approximation might be made of the 
amount of desegregation reasonably to be expected under 
such a zone plan, or under an option plan with a transfer 
provision such as is being used in New Orleans and 
Houston, or under a zone plan with a transfer provision 
such as is being used in Charlottesville. In short, there 
was nothing to show the inadequacy of the present system 
in comparison.

It is clear that no student has complained to the court 
concerning discriminatory treatment by those in charge of 
the schools, either in being afforded transfer rights, or in 
the administration or application of those rights. Counsel 
for the school board recognized in argument the possible 
discriminatory application of the plan with respect to dif­
ferences in requirements for formal and informal trans­
fers. No ruling was made in the court below on this or 
the fact that the plan is not being used for the initial 
assignment of students new to a school and to grades that 
have been desegregated. They were there considered, if 
at all, as incidental to the main question of continuing 
present assignments. They were never called to the atten­
tion of the school board.

Opinion of Bell, Circuit Judge

V.

We affirm the order of the District Court within the con­
text of what we have had to say regarding the plan, and 
having in mind that the jurisdiction of the District Court



25a

will continue. Such deficiencies as we have pointed to, or 
other matters involving discrimination which may arise 
may be considered by the District Court in the event they 
are not adjusted by those having charge of the schools. 
See Ross v. Dyer, supra, where the brother-sister rule was 
voided. This is in line with the procedure followed in Dod­
son v. School Board of the City of Charlottesville, supra, 
where a plan already in operation was recently examined 
by the Court of Appeals for the Fourth Circuit and found 
deficient in some respects. The decision was affirmed with 
a proper caveat to the deficiencies. It was there said:

“ The action we take is based on the particular his­
tory and circumstances associated with this case. In 
appeals involving school desegregation problems, 
where the Supreme Court has permitted a period of 
transition for the desegregation of schools, each case 
is to some extent dependent on its own particular facts. 
The attitude of particular school authorities, their 
past conduct, the progress they have been making, the 
varying administrative difficulties that may be shown 
to exist in different localities, the court’s view as to 
the officials’ future intentions, and other factors must 
be taken into consideration.”

The plan of the District Court here is for the transi­
tion period. Time will tell whether other questions regard­
ing discrimination in the areas of extra-curricular activi­
ties, or leading from the assignment of teacher personnel 
are rendered moot. There is no evidence to support the 
charge of discrimination in extra-curricular activities in 
the grades that have been desegregated in Atlanta, and the 
District Court did not err in postponing the consideration

Opinion of Bell, Circuit Judge



26a

of teacher assignment question. Augustus v. Board of 
Public Instruction of Escambia County, Florida, supra.

In the meantime the Atlanta plan is working. Progress 
is the test, and the necessary transition is taking place. 
There has been no trouble. All responsible officials and 
many private citizens haye cooperated to make it work, 
and to preserve public education.

We do wish, however, to point out some fundamentals 
to be borne in mind in the future handling of this and 
like matters where an approved plan is in operation. 
Whether to effect a plan, to speed it up, or to otherwise 
modify it is in the first instance for the school board. This 
is likewise true as to problems arising in connection with 
the administration of a plan. The courts are ill equipped 
to run the schools. Litigants must not ignore school offi­
cials, and school officials must not abdicate their function 
to the courts. They, like the courts, are bound by the 
Constitution as interpreted by the Supreme Court. Cooper 
v. Aaron, supra. With these principles in mind, this record 
discloses no problem that could not be resolved between 
appellants and the school officials based on the judgment 
of the school officials as educators, with the application of 
wisdom, forebearance and mutual trust to the educational 
purpose of schools.

The judgment appealed from is

Dissenting Opinion of Rives, Circuit Judge

AFFIRMED.



27a

R ives, Circuit Judge, Dissenting:

With deference I respectfully dissent. Before expressing 
reasons, it seems appropriate to state my agreement that 
all of the parties to this litigation and the district court 
as well are entitled to the complimentary remarks made 
of them in the majority opinion. I think, too, that the 
appellants now before the Court should not be faulted in 
seeking additional relief because of their willingness, for 
a period of two years, to permit the Atlanta plan to be 
tested out without appealing to this Court for any faster 
relief.

It is apparent from the record that the district court, 
working patiently with the plaintiffs and with the Atlanta 
School Board, sought to devise a method by which the 
first breach in the race barriers might be made. However, 
it is no criticism of the good faith of the parties involved 
for me to point out now, as did the Supreme Court in its 
opinion in I. A. Watson, et al. v. City of Memphis, et al., 
------U. S .------- -, No. 424, October Term, 1962, that:

“ It is now more than nine years since this Court held 
in the first Brown decision, Brown v. Board of Educa­
tion, 347 U. S. 483, that racial segregation in state pub­
lic schools violates the Equal Protection Clause of the 
Fourteenth Amendment.”

Largely on the basis of what the Court there said, and 
also because this Court has expressly required other Boards 
of Education in litigation in this Circuit, see Augustus v. 
Board of Public Instruction, 5 Cir., 306 F. 2d 862, and Bush 
v. Orleans Parish School Board, 5 Cir., 308 F. 2d 491, to 
take steps towards desegregation of the schools that go 
considerably further than was required by the district

Dissenting Opinion o f Rives, Circuit Judge



28a

court in this case, I cannot agree that we should affirm 
this judgment. For us to do so amounts to a backward step 
rather than a step consistent with what I consider to be the 
clear teaching of the Supreme Court’s unanimous opinion 
written by Mr. Justice Goldberg in the Watson case:

“ Given the extended time which has elapsed, it is 
far from clear that the mandate of the second Brown 
decision requiring that desegregation proceed with ‘all 
deliberate speed’ would today be fully satisfied by types 
of plans or programs for desegregation of public edu­
cational facilities which eight years ago might have 
been deemed sufficient. Brown never contemplated that 
the concept of deliberate speed would countenance in­
definite delay in elimination of racial barriers in 
schools. . . .”

The essential fact, as disclosed by the record before us, 
is that the schools of the City of Atlanta do not have a 
single grade, in either the grammar or high schools, in 
which Negro children are permitted to become students on 
the same basis as are white children. In other words, what­
ever may have produced this result, it is not disputed that 
it is impossible for a Negro student in the top three grades, 
which have, under the Atlanta plan, been “ desegregated,” 
to enter such desegregated school without being subjected 
to requirements that do not apply to any white student in 
the grade. This comes about by reason of the fact that, 
while the basis for first considering applications of a Negro 
student for a transfer to a white school is the test normally 
conducted during the school year for all students, both 
white and Negro alike, the Negro student seeking to trans­
fer is required to meet standards based upon an analysis 
of his tests and also based upon a “personality interview,”

Dissenting Opinion of Rives, Circuit Judge



29a

which do not apply to the white students who are already 
enrolled in the school, or who come into the grade from a 
lower grade by reason of having been in a “ feeder” system 
as to which all white children are in white schools and all 
Negro students are in Negro Schools.1 

As is pointed out by the majority opinion:

“ The standard used was that the transferee (the 
Negro student) had to score a grade at least equal to 
the average of the class in the school to which transfer 
was requested.”

And, as also pointed out in the majority opinion:

“Each student [transferee] was also given a person­
ality interview by school officials to determine probable 
success or failure in the new school.”

On the face of it, of course, this means that if a Negro stu­
dent seeks a transfer from Booker T. Washington High 
School (Negro) into the twelfth or eleventh grade at North- 
side High School, a white school, the Negro student has to 
demonstrate from his record at Booker T. Washington that 
his grade was “ at least equal to the average of the class” 
in Northside, whereas every passing student entering that 
grade from the lower grade in Northside High School would 
automatically be admitted in such grade. Of course, it 
would be ridiculous to suggest that before students pass­
ing from eleventh grade Northside to twelfth grade North- 
side could be admitted to the twelfth grade their prior

11 use the term “white and Negro schools” in a practical sense. 
Considerable attention is paid by the trial court and the majority 
to the fact that the words “Negro” and “White” no longer appear 
in. the literature of the Board of Education. That there are still 
Negro and white schools, however, is conceded by the appellees. 
See footnotes 3 and 4, infra.

Dissenting Opinion of Rives, Circuit Judge



30a

record must have equaled the average of the class in the 
eleventh grade. It takes no professional testimony to in­
dicate the absurdity of such a requirement. Yet this is 
precisely the requirement which is imposed on every Negro 
transfer student. Moreover, so long as an eleventh grade 
student attains the passing standard required by the school 
at Northside, he passes into the twelfth grade without being 
subjected to a “ personality interview” by school officials to 
determine probable success or failure in the twelfth grade.

Even though the appellants did not appeal from the 
original decision of the trial court approving the transfer 
plan in the Atlanta Schools, this did not foreclose the right 
of appellants to complain that, when the plan was actually 
put into operation, it was operated in a manner that clearly 
discriminated against the Negro students. Nor is this a 
criticism of the good faith of the School Board, which may 
have considered that it had adequate reasons for wishing to 
impose these higher standards on the first Negro students 
who were to be admitted into the white schools. This, how­
ever, was not within the contemplation of the district 
court’s original order, which expressly provided that the 
plan was not to be based on consideration of race. It seems 
to me that the majority opinion justifies the continued 
approval of the present plan on the assumption that it is 
“not based on consideration of race,” because the opinion 
states:

“ . . .  it can also be said that there is an option under 
the Atlanta plan just as there is under the New Orleans 
and Houston plans, assuming the plan is applied to 
transfers as well as assignments of all new students 
[which, of course, it is not] in desegregated grades, 
and is not based on consideration of race [which it 
plainly is].” (Emphasis added.)

Dissenting Opinion of Rives, Circuit Judge



31a

Since the assumption on which the opinion rests is dem­
onstrably not correct, the opinion cannot be logically sup­
ported.

The Court of Appeals for the Fourth Circuit, in Green 
v. Board of Education of City of Roanoke, 4 Cir., 1962, 
304 F. 2d 118, 123, has expressly met and answered this 
point; that is, whether the requirement of a higher stand­
ard of performance of Negro students, based on tests 
uniformly taken by all students, meets even the initial 
requirement for desegregating a single grade:

“ The requirement that a Negro seeking transfer must 
be well above the median of the white class he seeks 
to enter is plainly discriminatory. The board’s ex­
planation that this special requirement is imposed on 
Negroes to assure against any ‘who would be fail­
ures’ is no answer. The record discloses that no 
similar solicitude is bestowed upon white pupils. . . .

“ The federal courts have uniformly held that such 
unequal application of transfer criteria2 is a violation 
of the Negro pupils’ rights under the Fourteenth 
Amendment.”

Green v. Board of Education of City of Roanoke, 304 F. 
2d 118,123, citing Jones v. School Board of City of Alexan­
dria, 4 Cir., 1960, 278 F. 2d 72, 77; Dodson v. School 
Board of City of Charlottesville, Fa., 4 Cir., 1961, 289 F. 
2d 439, 443; and this Court’s opinion in Mannings v. Board 
of Public Instruction, 5 Cir., 1960, 277 F. 2d 370, 374-375.

2 Throughout the discussion in the trial court and throughout 
the opinion of the majority, emphasis is placed on the fact that the 
same tests are given to white and Negro children, and that they 
are all subject to the same grading system. The significant point 
is not the tests, but the use that is made of them. Thus, it is a 
question of the application of criteria to the Negro student’s grades 
that are not applied to the grades of the white student.

Dissenting Opinion of Rives, Circuit Judge



32a

The opinion in the Green case also answers the conten­
tion made by appellees and accepted by the majority that 
an attack on the discriminatory manner of handling the 
plan must be by each individual student. See 304 F. 2d 118, 
124. The discriminatory application of the plan can be 
challenged for the class as can the unconstitutionality of 
segregated schools.

Counsel for the School Board make the point, which 
seems somewhat persuasive to the majority, that in all 
“ regular transfers” 3 the transferring student was subjected 
to the same requirement that he meet the standard equal 
to the average of the school to which transfer was sought, 
and that he be subject to a personality interview. This, of 
course, does not meet the problem at all, because every 
white student would remain in a white school without hav­
ing himself subjected to these testing or interview criteria 
by reason of that fact that every student in the Atlanta 
schools below the “ desegregated” grades goes to school 
under a dual system,4 where white children go to white

3 The record shows that the only Negro applications for transfer 
to white schools that were considered were those submitted be­
tween May 1 and May 15 of each year. In addition to these there 
were many transfers made “ informally” during the school year by 
white students among white schools, or by Negro students among 
Negro schools. The criteria above discussed were not applied to 
these informal transfers.

4 While the trial court stated, “neither, does the evidence show 
that defendants are maintaining a ‘dual system of school attendance 
area lines,’ ” and the majority opinion says, “even if it may be said 
that there is a dual system in Atlanta, and the evidence does not 
so disclose”  (emphasis added), both statements are incorrect. The 
Superintendent of Schools, who was the only witness, testified as 
follows on page 90 of the Record:

“ Q. And by whom are these administrative lines drawn?
“A. By the area superintendent in cooperation with the 

school officials, local school officials.

Dissenting Opinion of Rives, Circuit Judge



33a

schools and Negro children go to Negro schools.5 There 
was only one instance of a formal application of a white girl 
seeking a transfer from one white school, which was about

Dissenting Opinion of .Rives, Circuit Judge

“ Q. And these lines serve to delineate the area for par­
ticular elementary schools!

“A. Yes, to the degree that it is necessary to balance one 
school’s attendance. .

“ Q. Now, in the areas where the housing is mixed racially, 
that is, the areas where Negroes and whites live in the same 
area, these lines would overlap, so to speak, wouldn’t they!

“A. Well, formerly they were drawn separately for white 
and Negro schools.

“ Q. And how are they drawn now?
“A. They are drawn on the basis of the Pupil Placement 

Law under which we are operating. There has been no change 
in the elementary situation.

“ Q. Now, you say the lines are drawn now pursuant to the 
Pupil Placement Laws. Is that a state law or is that the plan ?

“A. That is the plan.
“ Q. And you say the lines are drawn pursuant to that ?
“A. The same lines that were in existence in 1960 are in 

existence at the present time.
“ Q. I see.
“A. With variations that have been made. There have been 

no specific change in those lines.
“ Q. And you still have separate lines which relate to the 

Negro schools and separate lines which would relate to the 
white elementary schools; is that right?

“A. Roughly, yes.”
5 The Superintendent testified at page 92 of the Record:

“ Q. You have sort of a feeder system where certain ele­
mentary schools would feed into certain high schools?

- “A. Yes.
“ Q. And, of course, the Negro elementary schools would feed 

into one of these six Negro high schools?
“A. Yes.
“ Q. And the white elementary schools would feed into one 

of these eighteen white or formerly white high schools?
“A. Right.
“ Q. Is that the way these high school students are now as­

signed to the schools?
“A. The same way, except they are subject to transfer upon 

request.”



34a

to be desegregated, to another white school, which thus far 
had not admitted any Negro students. This, the Board, the 
district court and this Court held to be an application made 
clearly outside the purview of the transfer plan, since it 
stated on the face of the application that the girl sought to 
transfer from a school which was about to be desegregated, 
by reason of the fact of such desegregation. Thus it is that 
no good faith application for transfer within the regular pe­
riod has been made by any white student and none need be 
made in light of the freedom of transfer by the informal 
method and by reason of the fact that the “ feeder” sys­
tem from white lower grades automatically guarantees the 
passage of each student to a white upper grade.

Moreover, entirely beyond the question of whether the 
present Atlanta plan truly desegregates any grade of 
school, which I think the record belies, there is the mat­
ter of timing which has heretofore come to this Court’s 
attention in the Escambia County case and the Orleans 
Parish case already mentioned. In the case of Escambia 
County, the principal city of which is Pensacola, Florida, 
the Board had proposed a plan at the Court’s direction, 
which the trial court had approved, providing for applica­
tions for transfers in all grades of school, such transfers 
to be applied to Negro and white students alike upon tests 
uniformly applied. We concluded that until a start was 
made in abolishing a dual system of schools, whereby all 
white children went initially to white schools and all Negro 
students went initially to Negro schools, no plan of selec­
tive transfer from formerly Negro to formerly white 
schools would satisfy the requirements of deliberate speed 
under the Brown decision. In 306 F. 2d 862, at page 869, 
this Court said less than a year ago:

Dissenting Opinion of Dives, Circuit Judge



35a

“ There cannot be full compliance with the Supreme 
Court’s requirements to desegregate until all dual 
school districts based on race are eliminated. It is prob­
ably too late, without undue confusion, to require the 
elimination as to any grade of such dual district in 
time for the 1962 fall term. The plan should, however, 
provide for the elimination. of all dual districts on 
racial lines at the earliest practicable time. If it ap­
pears too late for such elimination as to any grade in 
time for the 1962 fall term, then the plan should pro­
vide for such elimination as to the first two grades for 
the 1963 fall term, and thereafter for such elimination 
as to at least one successive additional grade each 
school year.”

Augustus v. Board of Public Instruction, 5 Cir., 1962, 306 
F. 2d 862, 869.

In Bush v. Orleans Parish School Board, upon its last 
appearance here, 308 F. 2d 491, the district court had 
already required the Board of Education of Orleans Parish 
to modify its plan of permitting transfers under the State 
Pupil Assignment Law, which by that time had applied to 
two grades of school, by requiring the complete desegre­
gation of the first grade of school beginning September 
1962. The order required the abolition of the dual system 
of schools, as to that grade. In an opinion that carefully 
considered the constitutional and administrative problems 
involved, this Court added further requirements to the 
effect that in September, 1964, the dual system shall be 
abolished for the first five grades, and that each year 
thereafter, as each succeeding higher grade is desegre­
gated, the dual system shall be abolished contemporane­
ously therewith.

Dissenting Opinion of Rives, Circuit Judge



36a

It is clear to me, as it must be to any who read and 
understand these two decisions by this Court, that if we 
accept the decision represented by the majority opinion in 
this case, the Court will have stepped backward from the 
position it has previously taken after long and mature 
deliberation, and that this Court will have deliberately 
required a prompter compliance with the Supreme Court’s 
decision in New Orleans and Pensacola than is being re­
quired in Atlanta, a community in which all the evidence 
and the opinions of the district court and of the majority 
clearly indicate accommodation to the requirements of the 
Constitution can be expected to be made with a minimum 
of difficulty.

Enjoined as we are to give fresh consideration to the 
element of timing in these school cases by the Supreme 
Court’s latest pronouncement on the subject in the Watson 
case, supra, and, following the Watson decision, in Jose­
phine Goss, et al. v. Board of Education, City of Knoxville,
Term., et a l.,------U. S . ------- , 31 L. W. 4559, No. 217, Oct.
Term, 1962,6 1 cannot concur in a decision of this Court that 
takes a backward rather than a current, much less forward, 
step.

I would require the moderate rate of increase prayed 
for by appellants to the extent of desegregating the classes 
to include the eighth and ninth grades in 1963, and the fifth, 
sixth and seventh grades in 1964. This is roughly parallel 
to what we required in Bush.

6 In construing language of a transfer plan for the schools of 
Knoxville, Tennessee, and of Davidson County, Tennessee, the 
Court said:

“Now, however, eight years after this decree was rendered and 
over nine years after the first Brown decision, the context in 
which we must interpret and apply this language to plans for 
desegregation has been significantly altered. Cf. Watson v. 
City of Memphis, supra.”

Dissenting Opinion of Rives, Circuit Judge



37a

Judgment

UNITED STATES COURT OF APPEALS

F or th e  F if t h  C ircuit 

O ctober T erm , 1962 

No. 20,273

D. C. Docket No. 6298 Civil

V ivian  Calh o u n , et al., Infants, by F red Calh o u n , 
their father and next friend, et al.,

Appellants,

-—versus—

A. C. L atim er , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF GEORGIA.

Before R ives, L ew is* and B ell , Circuit Judges.

This cause came on to be heard on the transcript of the 
record from the United States District Court for the 
Northern District of Georgia, and was argued by counsel;

On Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court appealed from in this cause be, and the same 
is hereby, affirmed;

It is further ordered and adjudged that the appellants, 
Vivian Calhoun, and others, Infants, by Fred Calhoun

* Of the Tenth Circuit, sitting by designation.



38a

Judgment

their father and next friend, and others, be condemned, 
in solido, to pay the costs of this cause in this Court for 
which execution may be issued out of the said District 
Court.
“ Rives, Circuit Judge, Dissents”

June 17,1963

Issued as Mandate: SEP 26 1963



39a

I n  th e

UNITED STATES COURT OF APPEALS 

F or th e  F if t h  C ircuit 

No. 20,273

O pinion on Petition for Rehearing

V ivian  Calh o u n , et al., Infants, by  F red Calh ou n , 
their father and next friend, et al.,

-versus—
Appellants,

A. C. L atim er , et al.,
Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF GEORGIA.

(August 16, 1963.)

B e fo re  R ives, L ew is ,* and B ell, Circuit Judges.

P er Curiam  : It is Ordered that the petition for rehearing 
filed in the above entitled and numbered cause be, and the 
same is hereby D enied.

The record before the court in this case did not relate 
to any practices having to do with transfers and assign­
ments for the 1963-64 school term. We referred to certain 
deficiencies found in the Atlanta plan on that record, and 
affirmed on the premise that such deficiencies would be 
adjusted by those having charge of the schools, or upon 
their failure, by the District Court.

* Of the Tenth Circuit, sitting by designation.



40a

The corrective action necessary in light of the defi­
ciencies will entail the application of the plan in an even 
handed manner without regard to race to all assignments 
of pupils new to a school for admission in a desegregated 
grade in that school; and to all transfers whether formal, 
informal or otherwise. Personality interviews to deter­
mine probable success or failure in the schools to which 
transfer and assignment is sought may not be utilized 
where such a practice relates only to Negro pupils as was 
the case. No standard requiring that a transferee score 
a grade on scholastic ability and achievement tests equal 
to the average of the class in the school to which transfer 
is sought may be utilized, nor may any scholastic require­
ment whatever be used where applied only to Negro stu­
dents seeking transfer and assignment as was the case in 
Atlanta in the administration of the plan approved by the 
District Court. The opinion is modified to make it clear 
that this corrective action must apply to transfers and 
assignments for the 1963-64 school term to the extent, if 
any, that the practices giving rise to the deficiencies may 
have been continued in use.

B i v e s , Circuit Judge, I dissent.

Opinion on Petition for Rehearing



41a

Order Denying Rehearing

Extract from the Minutes of August 16, 1963

No. 20,273

V ivian  Calh o u n , et al., Infants, by  F eed Calh o u n , 
their father and next friend, et al.,

—versus—

A. C. L atim er , et al.

It is ordered by the Court that the petition for rehear­
ing filed in this cause be, and the same is hereby denied.

“ Rives, Circuit Judge, Dissents”



c^Si^ 38