Maxwell v. Dawson County, TN Board of Education Appendix to Appellants' Brief
Public Court Documents
January 1, 1961

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Brief Collection, LDF Court Filings. Maxwell v. Dawson County, TN Board of Education Appendix to Appellants' Brief, 1961. 0a9cac38-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0f85aed3-7a79-4662-9855-6de2874f21a2/maxwell-v-dawson-county-tn-board-of-education-appendix-to-appellants-brief. Accessed May 17, 2025.
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-f- i l t c a / ’ v In t h e Htttfrii Btn&B GImtrt nf Appeals F ob the Sixth Circuit No. 14,607 H enry C. M axwell, Jr., et al., Plaintiffs-Appellants, —-vs.— County B oard oe E ducation or D avidson County, T e n n ., et al., Defendants-Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION ____________________________ _______________ ___ APPENDIX TO APPELLANTS’ BRIEF Z. A lexander L ooby A von N. W illiams, Jr. 327 Charlotte Avenue Nashville 3, Tennessee T hurgood M arshall Jack Greenberg James M. Nabrit, III 10 Columbus Circle Suite 1790 New York 19, N. Y. Attorneys for Plaintiffs-Appellants 'Of Counsel: N orman C. A maker I N D E X PAGE Complaint .............................. 7a Motion for Temporary Restraining O rder................. 26a Motion for Preliminary Injunction ............................. 27a Order to Show Cause .................................................... 28a Motion to Dismiss ................................. 29a Affidavit of J. E. Moss .................................................. 31a Exhibit “ A ” to Affidavit ...................................... 36a Exhibit “ B ” to Affidavit ........................................ 37a Affidavit of Frank White ............................................ 38a Affidavit of Melvin B. Turner...................................... 40a Motion to Strike Certain Portions of the Complaint.. 42a Answer .............................. ...... -....................................... 43a Excerpts from Transcript of Hearing, September 26, 1960 ............................................................................... 52a J. E. Moss ................................................................ 52a Melvin B. Turner.................................................... 54a J. E. Moss ................................................................ 55a Order, October 7, 1960 .................................................. 61a Relevant Docket Entries ............................................ la 11 PAGE Report of the County Board of Education................. 64a Exhibit “ A ” to Report ......... 65a Plan ............................................................................ 69a Specification of Objections to Plan ........................... 72a Excerpts from Transcript of Hearing, October 24, 1960 ............................................................................... 77a J. E. Moss ................................................................ 77a Dr. Eugene W einstein............................................ 94a Annie P. D river........................................................ 108a Henry C. Maxwell .................................................. 110a Findings of Fact, Conclusions of Law and Judgment November 23, 1960 ...................................................... 114a Judgment .................................................................. 131a Order, November 29, 1960 .............................................. 134a Motion for New Trial and for Appropriate Relief .. 136a Motion of Plaintiffs for Further Relief ................... 139a Exhibit “A ” to Plaintiffs’ Motion ....................... 142a Supplemental Answer ..................................................... 146a Excerpts from Transcript of Hearing, January 10, 1961 .............................................. 149a Joseph R. Garrett ...... 149a Findings of Fact, Conclusions of Law and Judgment 171a Judgment .................................................................. 175a Notice of Appeal ............................................................ 177a A P P E N D I X Relevant Docket Entries* Civil Docket 2956 H e n r y C. M a x w e l l , Jr., et al. —vs.— C o u n t y B o ard o f E d u c a t io n o f D a v id s o n C o u n t y , T e n n ., et al., 9-19-60 Complaint filed. 9-19-60 Motion for Temporary Restraining Order-filed by the Plaintiffs. 9-19-60 Motion for Preliminary Injunction—filed by the Plaintiffs. 9-19-60 Order to Show Cause Why Temporary Restrain ing Order and/or Preliminary Injunction Should Not Issue—entered by Judge William E. Miller. It is Ordered that the Defendants named herein shall appear at 9 :00 A.M. on September 26, 1960 before Judge William E. Miller in U. S. District Courtroom to show cause, etc. * * * 9-26-60 Motion to Dismiss filed by defendants. * * # 9-26-60 Affidavit of J. E. Moss filed by defendants in sup port of Motion to Dismiss. 9-26-60 Affidavit of Frank White filed by defendants in support of Motion to Dismiss. Entries not relevant to this appeal have not been printed. 2a 9-26-60 Affidavit of Melvin B. Turner filed by defendants in support of Motion to Dismiss. 9-26-60 Motion to Strike certain Portions of the Com plaint filed by defendants. * * * 9- 26-60 Answer of defendants filed. * * * 10- 7-60 Order relative to hearing had on September 26, 1960, (1) Motions of plaintiffs for temporary re straining order and/or preliminary injunction be and the same is withheld at this time (2) defen dants directed to file with the court, not later than Oct. 19, 1960 a complete and substantial plan which will accomplish complete desegrega tion of public school system of Davidson County, Tennessee (3) the plaintiffs will be furnished by defendants with a copy of said plan and may file objections thereto not later than October 21, 1960, the plaintiffs except to the action of the Court in withholding action on their motions for temporary restraining order and preliminary in junction. 10- 19-60 Beport of the County Board of Education of Davidson County, Tennessee, with Exhibit “A ”— Beport of the Special Committee of the Davidson County Board of Education,—attached, filed by the Defendants. * * * 10- 21-60 Specification of Objections to Plan filed by County Board of Education of Davidson County, Tennessee, * * * , filed by the plaintiffs. 11- 9-60 Transcript of the Court’s Statement from the Bench and of Proceedings Thereafter on Motion of Defendants to Strike,—filed. Relevant Docket Entries 3a 11-23-60 F indings of F act, Conclusions of L aw and J udgment— entered by Judge William E. Miller. It is accordingly Ordered, Adjudged and De creed as follows: (1) That the plan submitted by the County Board of Education of Davidson County, Tennessee is approved, except in the following particulars: (a) Compulsory segregation based on race is abolished in grades One through Four of the Davidson County Schools for the Second Semester of the 1960-61 school year begin ning January 1961, and thereafter for one additional grade beginning with each subse quent school year, i.e., for Grade Five in September 1961, Grade Six in September 1962, etc. (b) As respects the summer classes attended by outstanding students, there will be no segregation based on races, and notice of such will be immediately given by the School Board to all teachers in the Davidson County School system, both Negro and white, of the availability of these classes. (c) The Davidson County School Board will, prior to the beginning of the Second Semes ter of the 1960-1961 school year, and prior to the beginning of each school year there after, give specific notice to the parents of all school children of the zone in which their children fall for the purpose of attending classes. Relevant Docket Entries 4a (2) The prayer of the plaintiffs for injunctive re lief be, and the same is hereby denied, except with regard to those matters as to which judg ment is hereinafter reserved. (3) Jurisdiction of this case is retained by the Court throughout the period of transition. (4) Judgment is reserved on the question of the motion to strike and those portions of the mo tion to dismiss not hereinbefore overruled, and on the matters raised in the complaint which are involved in said motions. To the foregoing action of the Court in approving the plan submitted by defendants and in denying plaintiffs’ prayer for injunctive relief, the plain tiffs except. * * * 11- 29-60 Order entered by Judge William E. Miller, Ordering that the Defendants’ Motions to Strike and to Dismiss those portions of the Complaint relating to teacher and personnel assignment be and they are hereby overruled, and that the de fendants be and they are hereby allowed twenty days from date in which to further plead to the Complaint. The Court reserves judgment as to the substantive questions involved, including the questions of granting injunctive relief, pending a further hearing after the issues have been fully joined between the parties. * # * 12- 2-60 Motion for New Trial and for Appropriate Re lief filed by the Plaintiffs. 12-12-60 Motion of plaintiffs for further relief filed. * * * Relevant Docket Entries 5a 12-13-60 Supplemental Answer, pursuant to the Court Order entered November 29, 1960,—filed by the Defendants. * * * 1-18-61 Transcript of the Court’s Statement from the Bench, on January 10, 1961 at Nashville, Tennes see—filed by the 0. C. R. * * * 1-24-61 Findings of Fact, Conclusions of Law and Judg ment entered. * * # Ordered that: (1) Relief prayed for in the motion for further relief filed by plaintiffs be and the same is denied, with the exception that the form of the notices to parents in the future are directed to be mailed by defen dants to counsel for plaintiffs in advance of mail ing, so as to give them sufficient time to file with the Court objections to the form of said notices. (2) The aforesaid notices to parents will be given to those who are affected by said plan of desegregation heretofore approved by the Court and not to anyone else. (3) The Motion for a New Trial and for appro priate relief filed by .Plaintiffs is overruled and denied. (4) Injunctive relief with respect to the issues heretofore reserved by the Court concerning assignment of teachers, principals and sus taining personnel in the schools on basis of race is denied at this time; and the Court further reserves ruling with respect to the assignment of teachers, etc., including the right of school children or their parents to raise such question. Relevant Docket Entries 6a (5) This case will remain on the docket of the Court and the Court will retain jurisdiction during the period of transition, etc. (6) The Motion to intervene filed in this cause by Porter Freeman is overruled and denied. To the foregoing action of the Court in denying their motion for further relief and their motion for new trial and for appropriate relief, and in denying the relief prayed for in the complaint with respect to said issues heretofore reserved by the Court, the plaintiffs respectfully except. 2-20-61 Notice of Appeal filed by the Plaintiffs. * * * 2- 20-61 Appeal Cost Bond filed by the Plaintiffs. * * * 3- 28-61 Order extending time to file record on appeal to and including May 21, 1961, entered. 5-25-61 Order received for entry from the U. S. Court of Appeals for the Sixth Circuit extending time to file record on appeal to and including May 31, 1961. 5-30-61 Transcript of Proceedings, filed (four Volumes) Relevant Docket Entries 7a Filed: September 19, 1960 I n the DISTRICT COURT OF THE UNITED STATES F or the M iddle D istrict oe T ennessee N ashville D ivision Civil Action No. 2956 C om p lain t -,-------- H enry C. M axwell, Jr., and B enjam in Grower M axwell, infants, by Rev. Henry C. Maxwell, Sr., and Mrs. Flora Maxwell, their father and mother and next friends, Cleophtjs D river, Christopher C. D river and D eborah D. D river, infants, by Mrs. Annie P. Driver, their mother and next friend, D eborah R uth Clark, an infant, by Joe E. Clark and Mrs. Floy Clark, her father and mother and next friends, Jacqueline D avis, Shirley D avis, George D avis, Jr., R ob ert Davis and R ita Davis, infants, by George Davis, Sr., and Mrs. Robbie Davis, their father and mother and next friends, R obert R ickey T aylor, an infant, by Robert Taylor and Mrs. Stella Taylor, his father and mother and next friends, and R ev. H enry C. M axwell, Sr., M rs. F lora M axwell, M rs. A nnie P. D river, Joe E. Clark, M rs. F loy Clark, George D avis, Sr., M rs. R obbie D avis, R obert T aylor, M rs. Stella T aylor, Plaintiffs, 8a versus County B oard of E ducation of D avidson County, T en nessee, and F rank W hite, S. L. W right, Jr., E. K. H ardison, Jr., F erriss C. B ailey, E. D. Chappell, A u brey M axwell and Olin W hite , Board Members, who together, as such Board Members, constitute the County Board of Education of Davidson County, Tennessee; and J. E. Moss, County School Superintendent and/or Super intendent of Public Instruction of Davidson County, Tennessee, Defendants. Complaint 1. (a) The jurisdiction of this Court is invoked under Title 28, United States Code, Section 1331. This action arises under Section 1 and also the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States; and under the Act of May 31, 1870, Chapter 14, Section 16, 16 Stat. 144, (Title 42, United States Code, Section 1981), as hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the sum or value of Ten Thousand ($10,000.00) Dollars. (b) The jurisdiction of this Court is also invoked under Title 28, United States Code, Section 1343. This action is authorized by the Act of April 20, 1871, Chapter 22, Sec tion 1, 17 Stat. 13, (Title 42, United States Code, Section 1983) to be commenced by any citizen of the United States or other person within the jurisdiction thereof to redress the deprivation, under color of a state law, statute, ordi nance, regulation, custom or usage, of rights, privileges 9a and immunities secured by Section 1, of the Fourteenth Amendment, or any other provision of the Constitution of the United States, and by the Act of May 13, 1870, Chap ter 14, Section 16, 16 Stat. 144, (Title 42, United States Code, Section 1981), providing for the equal rights of citi zens and of all persons within the jurisdiction of the United States, as hereinafter more fully appears. 2. This action is a proceeding under Title 28, United States Code, Sections 2201 and 2202, for a judgment de claring the rights and other legal relations of plaintiffs and all other persons, similarly situated, eligible to attend elementary and secondary schools owned, maintained and operated by the County Board of Education of Davidson County, Tennessee, in and for said County and State, and demanding an injunction, for the purpose of determining and redressing questions and matters of actual contro versy between the parties, to-wit: (a) Whether the custom, policy, practice or usage of defendants in excluding plaintiffs and other persons simi larly situated, from elementary and secondary schools owned, maintained and operated by the County Board of Education of Davidson County, Tennessee, solely because of their race or color, and in operating a compulsory racially segregated school system in and for said County and State, pursuant to Sections 49-3701, 49-3702, and 49-3703, Ten nessee Code Annotated, 1955, and that portion of Section 12 of Article 11 of the Tennessee Constitution which makes it unlawful for white and colored persons to attend the same school, and pursuant to any other law, custom, policy, practice, or usage, violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Con stitution of the United States. Complaint 10a 3. Plaintiffs bring this action pursuant to Rule 23, (a) (3) of the Federal Rules of Civil Procedure as a class action for themselves and on behalf of all other persons similarly situated, who are so numerous as to make it impracticable to bring them all before the Court and who seek a common relief based upon common questions of law and fact. 4. Plaintiffs are Negroes and are citizens of the United States and of the County of Davidson and State of Ten nessee. All adult plaintiffs are parents and/or guardians of the infant plaintiffs, and reside with the infant plain tiffs, in Davidson County, Tennessee. All of the infant plaintiffs are school children, eligible to attend the public schools of Davidson County, and have been attending said schools, and can satisfy all requirements for admission to the public schools maintained and operated by the defen dant, County Board of Education, in and for Davidson County, Tennessee, including the schools to which they respectively applied as hereinafter shown. 5. (a) The defendant, County Board of Education of Davidson County, Tennessee, is composed of the following Board Members, the defendants, Frank White, S. L. Wright, Jr., E. K. Hardison, Jr., Ferriss C. Bailey, E. D. Chappell, Aubrey Maxwell, and Olin White, who, together, constitute the County Board of Education of Davidson County, Tennessee, and who are hereinafter referred to as defendant, County Board of Education. (b) Said defendant, County Board of Education, exists pursuant to the Constitution and laws of the State of Ten nessee as an administrative department or agency of the State of Tennessee, discharging governmental functions, and is by law, a body corporate or a continuous body or Complaint 11a entity, and is being sued herein as such corporate or con tinuous body or entity. (c) All of said defendants, above named as Board Mem bers of defendant County Board of Education, are citizens and residents of the State of Tennessee, and are being sued herein in their official capacities as such Board Members, and are also being sued herein as individuals. (d) Defendant, J. E. Moss, is County School Superin tendent or Superintendent of Public Instruction of David son County, Tennessee and holds office pursuant to the Constitution and laws of the State of Tennessee as an administrative officer of the free public school system of Tennessee. He is a citizen and resident of the State of Tennessee, and is made defendant herein and sued in his official capacity as stated hereinabove, and is also being sued herein as an individual. 6. The State of Tennessee has declared public education a State function. The Constitution of Tennessee, Article 11, Section 12, provides: “ Knowledge, learning, and virtue, being essential to the preservation of republican institutions, and the dif fusion of the opportunities and advantages of educa tion throughout the different portions of the State, being highly conducive to the promotion of this end, it shall be the duty of the General Assembly, in all future periods of this Government, to cherish liter ature and science.” Pursuant to this mandate the Legislature of Tennessee has established a uniform system of free public education in the State of Tennessee according to a plan set out in the Complaint 12a Tennessee Code Annotated, 1955, Sections 49-101 through 49-3806, and supplements and amendments thereto. The establishment, maintenance and administration of the pub lic school system of Tennessee is vested in a Commissioner of Education, a State Board of Education, County Super intendents of Public Schools, and County and City Boards of Education. 7. The public schools of Davidson County, Tennessee are under control and supervision of defendant, County Board of Education and defendant, J. E. Moss, acting as an administrative department, division or agency, and as an agent of the State of Tennessee. Said County Board of Education is charged and vested with the administration, management, government, supervision, control and conduct of public schools within said County, and is vested with all powers and duties pertaining to, connected with, or in any manner incident to the proper conduct and control of the public schools of said County. Said County Board of Education is under a duty to enforce the school laws of the State of Tennessee; to maintain an efficient system of public schools in Davidson County, Tennessee; to determine the studies to be pursued, the methods of teaching, and to establish such schools as may be necessary to the complete ness and efficiency of the school system. Defendant, J. E. Moss, as Superintendent, has the immediate control of the operation of the public schools of said County and is the administrative agent for the defendant, Board of Educa tion, and serves as a member of its executive committee. 8. Plaintiffs allege that the defendants herein, acting under color of the laws of the State of Tennessee and County of Davidson, have pursued and are presently pursu ing a policy, custom, practice and usage of operating a com- Complaint 13a pulsory racially segregated school system in and for the County of Davidson, State of Tennessee. The racially segre gated school system operated by defendants consists of a primary system of elementary, junior high, and high schools limited to attendance by white children of the County of Davidson. Said schools are staffed by white teachers, white principals and white sustaining personnel. Said white schools are located in various parts of the County and, regardless of location, these schools may be attended by white children only. The defendants also main tain a secondary system of “ colored schools” or “Negro schools” limited to attendance by Negro children. These schools are likewise located in various parts of the County and, regardless of location, are limited to attendance by Negro children. These schools are staffed entirely by Negro personnel; the teachers are all Negroes; the principals are all Negroes; and the sustaining personnel are all Negroes. This compulsory racially segregated school system is based solely upon race and color; attendance at the various schools is determined solely upon race and color and the assignment of personnel is determined solely upon the race and color of the children attending the particular school and the race and color of the personnel to be as signed. A dual set of school zone lines is also maintained. These lines are based solely upon race and color. One set of lines relates to the attendance areas for the Negro schools and one set to the attendance areas for the white schools. These lines overlap where Negro and white school children reside in the same residential area. For many years the defendants have adopted, maintained and en forced, and they still maintain and enforce this custom, policy, practice or usage of compulsory racial segregation in the schools of Davidson County, Tennessee pursuant to Complaint 14a, which they have required and are still requiring all Negro children, including the infant plaintiffs, to attend said schools designated exclusively for Negro children. 9. From time to time since 1954 or 1955, Negro citizens and residents of Davidson County have requested defen dants to cease operating a compulsory racially segregated public school system in Davidson County, Tennessee, and to comply with the decision of the United States Supreme Court in the School Segregation Cases. Defendants have continued, however, to pursue the policy, practice, custom and usage of operating a compulsory racially segregated school system in Davidson County, Tennessee, and have failed and have refused to formulate or adopt any plan for desegregating the public school system of Davidson County. 10. At the beginning of the school term, that is, to-wit; on 2 September, 1960, the infant plaintiffs, Henry C. Max well, Jr., and Benjamin Grover Maxwell, presented them selves with their parents, and made proper and timely applications for admission to G-lencliff Junior High School and/or Antioch High School, but they were denied admis sion by defendants to said said schools, solely on account of plaintiffs’ race or color. On the same date, the infant plaintiffs, Cleophus Driver, Christopher C. Driver, and Deborah D. Driver, presented themselves, together with their mother, and made proper and timely application for admission to the Bordeaux Elementary School. In addi tion, the plaintiff, Joe E. Clark, father of Deborah Ruth Clark, also presented himself at that time and made proper and timely application for admission of his daughter, the infant plaintiff, Deborah Ruth Clark, to the Bordeaux E le- Complaint 15a mentary School. All of said plaintiffs were refused and denied admission by defendants to the said Bordeaux Ele mentary School, solely on account of plaintiffs’ race or color. All of said infant plaintiffs reside in the zones of the respective schools to which they applied, and would have been admitted had they been white children. The plaintiffs, Reverend & Mrs. Henry C. Maxwell, Sr. were accompanied by the plaintiff, Mrs. Robbie Davis, whose five minor children, the infant plaintiffs, Jacqueline Davis, Shirley Davis, George Davis, Jr., Robert Davis, and Rita Davis, are presently residing closer to a school designated by the defendants as a “ Negro” school. However, Mrs. Davis accompanied Reverend & Mrs. Maxwell, and she and her husband, George Davis, Sr., and their minor children, as well as the plaintiffs, Robert Taylor and wife, Stella Taylor and their minor child, Robert Rickey Taylor, who also is in the zone of and attends a “Negro” school, join in this action for the reason that their said children are being denied their right to enjoy a non-discriminatory public education by reason of the compulsory racially segregated public school system wdiich the defendants are maintaining and operating in and for Davidson County, Tennessee, as more fully shown hereinafter. (a) Defendants’ requirement of compulsory racial segre gation imposes unreasonable burdens upon the infant plaintiffs and other Negro children similarly situated, who live near and in the zone of readily accessible schools Avhich white children living in the same area are permitted to attend, but plaintiffs and all other Negro children are refused admission to these schools and required to travel great distances to “ Negro” schools, solely because of their race or color. For instance, the infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin Grover Maxwell, who are Complaint 16a just entering Junior High School this year, reside within a radius of two or three miles of Glencliff Junior High School and Antioch High School, to either of which they would be admitted if they were white, but because they are Negroes, they and other Negro children similarly situ ated, must walk a half mile or more each morning to a school bus pick-up point, where they are picked up and transported twelve miles all the way across town to a “ Negro” school, and must make the return trip each eve ning, arriving home at dusk. Similarly, the Driver and Clark children named hereinabove as infant plaintiffs, and all other Negro children, similarly situated, who reside in their neighborhood, are within walking distances of the Cumberland Junior High School and the Bordeaux Ele mentary School, which latter school was destroyed by fire on 9 September 1960, as hereinafter shown; but these chil dren and all other Negro children similarly situated, are required to travel by bus a distance of five or six miles or more to Haynes School, designated by defendants as a “ Negro” school. This unnecessary burden imposed upon the infant plaintiffs, and other Negro children similarly situated, solely because of race or color, subjects said chil dren to unwarranted physical and health hazards, depriv ing them in many instances of opportunities for athletic and cultural development, and reduces their opportunities for educational instruction and study. In addition, it places an unwarranted burden upon the parents of the infant plaintiffs and other Negro children, requiring them to arise in the early hours of the morning in order to get them off to school and depriving said parents, in many instances, of their companionship and services in the afternoon, by reason of the fact that many of them, particularly those residing in the area of the Maxwell children, do not reach Complaint 17a home until late in the evening. Defendants refuse to admit the infant plaintiffs to the schools as aforesaid, solely on account of their race or color, the defendant, J. E. Moss, having stated explicitly to one or more of the adult plain tiffs that they were denied admission for this reason, and that the Board of Education is committed to a policy of compulsory segregation. As a matter of fact, the defen dant, Board of Education, has officially stated its policy of compulsory racial segregation by a motion passed and entered upon the minutes of the Board at a meeting held on 8 September, 1960, which reads substantially as fol lows : “We have fully considered the request of certain Negro citizens who are parents of children in the Davidson County School System to admit 4 children as students in the Bordeaux Elementary School and 2 students to be admitted to Gleneliff High School. Heretofore, numerous substantial Negro citizens of this county have expressed their desire that their chil dren attend Negro schools; and they also expressed their pride in their own schools and confidence in their teachers. The Negro schools in Davidson County are in excel lent condition and most of the schools have been built within the last 10 years and the Negro schools are equal in every respect to the white schools. The request has been made by the parents of six children from three Negro families. This request was made after the current school year had started and after all plans for transportation, zoning of students, distribution of school books, etc., had been fully com pleted for the county-wide system. Complaint 18a It is therefore moved that the Davidson County Board of Education decline the request so made and in making this motion, it is our feeling that we are act ing in the best interest of the six Negro children men tioned above.” Plaintiffs aver that the class work in the Davidson County School System, contrary to the foregoing statement of the defendants, began on Tuesday, September 6, 1960, some four days after the plaintiffs had presented them selves and made application to the defendants for admis sion to the schools requested, and were denied. Plaintiffs further aver that some of the adult plaintiffs appeared at the office of the defendant, J. E. Moss, on 31 August, 1960, approximately two days prior to registration on 2 Sep tember 1960, and sought an interview with the defendants, at which time, one of the adult plaintiffs stated explicitly that they were there requesting integration of the David son County School System. Plaintiffs were informed by said office that they would be given an appointment with the defendant, J. E. Moss, for that purpose on Thursday, 1 September 1960. However, on the last mentioned date, they were further informed by said defendant’s office, that he would not see them until Tuesday, 6 September, 1960. Plaintiffs thereupon presented themselves to the respec tive schools for admission on registration day, 2 September, 1960, as aforesaid. On the morning of 9 September, 1960, following said action by the Board on 8 September, 1960, the Bordeaux Elementary School was destroyed by fire. Although defen dants have not made any public announcement as to the disposition of the exclusively white school population of said school, it is apparent from the defendants’ foregoing Complaint 19a policy, that they will continue to operate a compulsory racially segregated school system and that new re-assign ment of the students in said school will be made on this basis. (b) Plaintiffs aver that while some of them sought and seek admission of their children to the respective schools to which they applied as aforesaid, same being within their zones, all of the plaintiffs further insist that the operation of a compulsory racially segregated school system in David son County violates rights of the plaintiffs and members of their class which are secured to them by the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution. The compulsory racially segre gated school system is predicated on the theory that Negroes are inherently inferior to white persons and, con sequently, may not attend the same public schools attended by white children who are superior. The plaintiffs, and members of their class, are injured by the policy of assign ing teachers, principals and other school personnel on the basis of the race and color of the children attending a particular school and the race and color of the person to be assigned. Assignment of school personnel on the basis of race and color is also predicated on the theory that Negro teachers, Negro principals and other Negro school person nel are inferior to white teachers, principals and other white school personnel and, therefore, may not teach white children. Thus all of the plaintiffs are affected and injured by defendants’ aforesaid policy, practice, custom, or usage, whether they are thereby excluded from a white school nearer their homes, or whether, on the other hand, they are required to attend a school nearer their homes but which is designated and stigmatized as a “ Negro” school, Complaint 20a from which all children of other racial extractions are excluded. 11. The defendants rely on the following provisions of the Tennessee Constitution and Statutes, which read as follows: Constitution of 1870, Act 11, Sec. 12: “ . . . No school established or aided under this section shall allow white and negro children to be received as scholars together in the same school.. . . ” Tennesse Code, 1955, Sections: “ 49-3701. Interracial Schools prohibited.—It shall be unlawful for any school, academy, college, or other place of learning to allow white and colored persons to attend the same school, academy, college, or other place of learning. (Acts 1901, ch. 7, sec. 1; shan., sec. 6888a 37; Code 1932, sec. 11395). “ 49-3702. Teaching of mixed classes prohibited,—It shall be unlawful for any teacher, professor, or educa tor in any college, academy, or school of learning, to allow the white and colored races to attend the same school, or for any teacher or educator, or other per son to instruct or teach both white and colored races in the same class, school, or college building, or in any other place or places of learning, or allow or permit the same to be done with their knowledge, consent, or procurement, (Acts 1901 ch. 7, sec 2; shan., sec 6888a 38; Code 1932, sec 11396.) “49-3703. Penalty for violations.—Any person violat ing any of the provisions of this chapter, shall be guilty of a misdemeanor, and, upon conviction, shall Complaint 21a be fined for each offense fifty dollars ($50.00), and im prisonment not less than thirty (30) days nor more than six (6) months. (Acts 1901, ch. 7, sec 3; shan., sec 6888a39; mod. Code 1932, sec 11397.)” 12. The infant plaintiffs and all other persons similarly situated, in Davidson County, Tennessee, are thereby de prived of their rights guaranteed by the Constitution and laws of the United States. Plaintiffs aver that the said constitutional and statutory provisions and all other laws, customs, policies, practices and usages of the State of Tennessee requiring or per mitting segregation of the races in public education, fall within the prohibited group which the Supreme Court of the United States holds must yield to the Fourteenth Amendment of the Constitution of the United States, and are of no force and effect. Plaintiffs therefore aver that the said custom, policy, practice or usage of defendants in excluding plaintiffs and other persons, similarly situated, from elementary and secondary schools, owned, maintained and operated by the County Board of Education of Davidson County, Ten nessee, solely because of their race or color, and in operat ing a compulsory racially segregated public school system in and for said County, pursuant to said constitutional and statutory provisions and any other law, custom, policy, practice or usage of the State of Tennessee requiring or permitting segregation of the Negro and white races in public education, deprives plaintiffs and all others simi larly situated of the equal protection of the laws in viola tion of the Fourteenth Amendment to the Constitution of the United States, and is therefore unconstitutional and void and affords defendants no legal excuse to deprive plaintiffs of their rights herein prayed. Complaint 22a 13. Plaintiffs and those similarly situated and affected, on whose behalf this suit is brought, are suffering irrep arable injury and are threatened with irreparable injury in the future by reason of the acts herein complained of. They have no plain, adequate or complete remedy to re dress the wrongs and illegal acts herein complained of, other than this suit for a declaration of rights and an in junction. Any other remedy to which plaintiffs and those similarly situated, could be remitted would be attended by such uncertainties and delays as to deny substantial relief, would involve multiplicity of suits, cause further irreparable injury and occasion damage, vexation and in convenience, not only to the plaintiffs and those similarly situated, but to defendants as governmental agencies. Plaintiffs aver that as of the date of this complaint, the classes in the public schools of Davidson County have been in session only three days and that there is no reason why, in view of the foregoing circumstances, their children should not be immediately admitted to the said schools on a non- discriminatory basis this school term. They further aver that they will suffer irreparable injury in the future, un less defendants are restrained by the temporary restrain ing order and injunction of this Court for the reasons set out hereinabove, and also, for the reason that, as aforesaid, the defendants have explicitly indicated that they intend to continue their compulsory segregation policy; and if the plaintiffs and other Negro children similarly situated, are not granted immediate relief now, they will be subjected to the inherent evil and inequality of compulsory racial segregation in the public schools for an indefinite period of time, and immediate and lasting harm and damage will result not only to them, but also to white children who are thereby being indoctrinated daily with concepts of themselves as a master or superior race while infant plain- Complaint 23a tiffs will be subjected daily to the said indoctrination clas sifying them as an inferior race. 14. There is between the parties an actual controversy as hereinbefore set forth. W herefore, Plaintiffs respectfully pray: The Court issue forthwith a temporary restraining order against the defendants, immediately restraining and en joining them and each of them, their agents, employees, servants or attorneys, from refusing to admit the infant plaintiffs to the said Glencliff Junior High School, Antioch High School, and Bordeaux Elementary School, according to their respective applications as set out hereinabove, or any other public school operated by defendants in and for Davidson County, Tennessee, on account of plaintiffs’ race or color, pending further orders of the Court. The Court issue a preliminary injunction, restraining and enjoining defendants and each of them, their agents, em ployees, servants or attorneys, from refusing to admit plaintiffs, and other persons similarly situated, to Glen cliff Junior High School, Antioch High School, and Bor deaux Elementary School, according to their respective applications as set out hereinabove, or any other public schools maintained and operated by defendant County Board of Education in and for Davidson County, Ten nessee, because of their race or color, pending further or ders of the Court. The Court adjudge, decree and declare the rights and legal relations of the parties to the subject matter here in controversy in order that such declaration shall have the force and effect of a final judgment or decree. The Court enter a judgment or decree declaring that the custom, policy, practice or usage of defendants in main- Complaint 24a taining and operating a compulsory racially segregated public school system in Davidson County, Tennessee, and in excluding plaintiffs and other persons, similarly situ ated, from Gleneliff Junior High School, Antioch High School, and Bordeaux Elementary School, according to their respective applications as set out hereinabove, or any other public schools maintained and operated by defen dant County Board of Education in and for Davidson County, Tennessee, solely because of race, pursuant to the above quoted portion of Article 11, Section 12 of the Con stitution of Tennessee, Sections 49-3701, 49-3702, and 49-3703 of the Tennessee Code, 1955, and any other law, custom, policy, practice and usage, violates the Fourteenth Amendment of the United States Constitution, and is there fore unconstitutional and void. The Court issue a permanent injunction forever restrain ing and enjoining defendants and each of them, their agents, employees, servants or attorneys, from maintaining or operating a compulsory racially segregated public school system in and for Davidson County, Tennessee, and from refusing to admit plaintiffs, and other persons similarly situated, to Gleneliff Junior High School, Antioch High School, and Bordeaux Elementary School, according to their respective applications as set out hereinabove, or any other public schools maintained and operated by defen dant, County Board of Education in and for Davidson County, Tennessee, because of their race or color. In addition to the immediate and preliminary relief prayed hereinabove in behalf of the named infant plain tiffs individually, the plaintiffs pray that this Court also expeditiously enter a decree directing defendants to pre sent a complete plan, within a period of time to be deter mined by this Court, for the reorganization of the entire Complaint 25a school system of Davidson County, Tennessee, into a uni tary, nonracial school system which shall include a plan for the assignment of children on a nonracial basis, the assignment of teachers, principals and other school per sonnel on a nonracial basis, the drawing of school zone lines on a nonracial basis, the allotment of funds, the con struction of schools, the approval of budgets on a nonracial basis, and the elimination of any other discriminations in the operation of the school system or in the school cur riculum which are based solely upon race and color. Plain tiffs pray that if this Court directs defendants to produce a desegregation plan that this Court will retain jurisdiction of this case pending Court approval and full and complete implementation of defendants’ plan. Plaintiffs further pray that the Court will allow them their costs herein and such further, other or additional relief as may appear to the Court to be equitable and just. Z. A lexander L ooby and A von N. W illiams, Jr. 327 Charlotte Avenue Nashville 3, Tennessee T hurgood M arshall and Jack Greenberg 10 Columbus Circle Suite 1790 New York 19, N. Y. Attorneys for Plaintiffs Complaint (Duly verified.) 26a Filed: September 19,1960 Come the plaintiffs, named in the caption hereinabove, and move the Court to issue forthwith a temporary re straining order against the defendants in this cause, im mediately restraining and enjoining them and each of them, their agents, employees, servants, or attorneys, from refusing to admit the infant plaintiffs to Glencliff Junior High School, Antioch High School, and Bordeaux Ele mentary School, according to their respective applications as set out in the complaint, or any other public school or schools operated and/or maintained by said defendants in and for Davidson County, Tennessee, on account of plaintiffs’ race or color, pending further orders of the Court. And for grounds of said motion, the said plaintiffs specify the matters and things alleged in their Complaint filed herewith, all of which are incorporated herein by reference and made a part of this motion. Respectfully submitted, Z. A lexander L ooby and A von N. W illiams, Jr., 327 Charlotte Avenue Nashville 3, Tennessee T hurgood M arshall and Jack Greenberg 10 Columbus Circle Suite 1790 New York 19, New l rork, Attorneys for Plaintiffs M o tio n fo r T em p o ra ry R estraining O rd er 27a Filed: September 26, 1960 Come the plaintiffs, named in the caption hereinabove, and move the Court to issue a preliminary injunction against the defendants in this cause, restraining and en joining said defendants and each of them, their agents, employees, servants or attorneys, from refusing to admit the plaintiffs and other persons similarly situated, to Glen- cliff Junior High School, Antioch High School, and Bor deaux Elementary School, according to their respective ap plications as set out in the complaint, or any other public school or schools maintained and operated by the defen dant County Board of Education of Davidson County, Tennessee, in and for said County and State, because of their race or color, pending further orders of the Court. And for grounds of said motion, the said plaintiffs specify the matters and things alleged in their complaint tiled herewith, all of which are incorporated herein by reference and made a part of this motion. Respectfully submitted, Z. A lexander L ooby and A von N. W illiams, Jr., 327 Charlotte Avenue Nashville 3, Tennessee T hurgood M arshall and Jack Greenberg 10 Columbus Circle Suite 1790 New York 19, New York Attorneys for Plaintiffs M o tio n fo r P relim in ary In ju n ction 28a Order to Show Cause Why Temporary Restraining Order and/or Preliminary Injunction Should Not Issue Filed: September 26, 1960 In the above cause the plaintiffs having filed their verified complaint together with Motions for a temporary restrain ing order and a preliminary injunction against the defen dants, for the purpose of immediately restraining and en joining them and each of them, their agents, employees, servants or attorneys, from refusing to admit the infant plaintiffs, and other persons similarly situated, to Gflen- cliff Junior High School, Antioch High School, and Bor deaux Elementary School, according to their respective applications as set out in the complaint, or any other pub lic school or schools maintained and operated by the said defendants in and for Davidson County, Tennessee, on ac count of plaintiffs’ race or color, pending further orders of the Court; and said motions being supported by the al legations contained in the complaint properly referred to and made a part thereof. It is therefore Ordered that the defendants named in the caption of the complaint in this cause, and each of them, appear before the Honorable William F. Miller, H. S. Dis trict Judge, at 9 :00 A.M., on Sept. 26, 1960, in U. S. Dis trict Courtroom, Nashville, Tennessee, and show cause why the aforesaid temporary restraining order and/or pre liminary injunction should not issue. W m. E. M il l e r XJ. 8. District Judge Vol. 23. Page 997September 19, 1960. 29a Filed: September 26, 1960 The defendants jointly move to dismiss the complaint filed against them in this cause upon the following grounds: 1. The complaint seeks extraordinary relief and pur ports to be sworn to, but the jurat of the Notary Public fails to contain any notarial seal, all as required by law. 2. The complaint seeks to attack and have declared un constitutional and void Article II, Section 12, of the Con stitution of Tennessee, and Sections 49-3701 through 49- 3703 of the Tennessee Code of 1955, without either the State of Tennessee or its representative, the Attorney General of the State of Tennessee, being made a party thereto. 3. The complaint purports to be brought as a class action by certain infant school children on behalf of all other persons similarly situated without any showing that there are other persons similarly situated who seek to at tend any of the public schools of Davidson County, Tennes see, which they are not now attending, or who would be qualified to attend any such schools. 4. The complaint seeks to obtain a reorganization of the entire school system of Davidson County, Tennessee, insofar as teachers, principals and other school personnel are concerned; whereas, no such persons are parties to the complaint. And the Defendants, and All of Them, Further Move to Dismiss the Complaint Insofar as Extraordinary Relief By Way of Temporary Restraining Orders and/or Pre liminary Injunctions for the Reasons That: 1. These plaintiffs are seeking equitable relief of an extraordinary nature and by their own admission have M o tio n to D ism iss 30a been guilty of laches in failing to make any application for admission to the schools of Davidson County, Tennessee, which they seek to attend until after all pupil assignment, school zones, transportation facilities and the like had been determined for the school year 1960-1961. 2. These plaintiffs are seeking equitable relief of an extraordinary nature and have been guilty of laches over the past several years in failing to seek admission to the schools of Davidson County, Tennessee, which they seek to attend and now seek to obtain such admission by means of the exercise of such extraordinary relief through this Hon orable Court. And the Individual Defendants Move to Dismiss the Com plaint Insofar as the Same is Filed Against Them Individually for the Reason: 1. No action on the part of these defendants as in dividuals has been recited in the complaint as the basis for a complaint on the part of the plaintiffs, and, on the contrary, such action as is complained of is under the allegations of the complaint the official action of such defendants. Shelton L uton County Attorney for Davidson County, Tennessee Davidson County Courthouse Nashville 3, Tennessee H aelan D odson, Jb. 1106 Nashville Trust Building Nashville 3, Tennessee Attorneys for Defendants Motion to Dismiss 31a Filed: September 26, 1960 J. E. Moss, being first duly sworn, deposes as follows: That he is sixty-one (61) years of age and is a resident of Davidson County, Tennessee, and has been superin tendent of Davidson County Schools since 1949. That as such he is the administrative head of the public schools of Davidson County, Tennessee, and acts under the supervi sion of the Davidson County School Board. That the public schools of Davidson County have, throughout his lifetime, been operated on a segregated basis with separate schools for white and negro students. That neither prior to nor since the decision of the Supreme Court of the United States in 1955 in the case of Brown v. The School Board has any request been made to him or of him by any negro pupil or the parents of any negro pupil in Davidson County, Tennessee, for the operation of the schools of Davidson County on an integrated basis prior to September 2, 1960. That neither has any group of negroes or whites, by petition, letter, verbal communication or otherwise, requested of the Davidson County School Board that the schools of Davidson County be operated on an in tegrated basis insofar as he is advised and that, in the event any such request had been made, such would have in the normal course of the operation of the School System been communicated to him. That, on the contrary, on more than one occasion delegations of negro pupils, or the parents of negro pupils, have requested, either verbally or in writing, that the School System of Davidson County be continued on a segregated basis. That in September of 1955 the County Board of Education of Davidson County was pre sented with a petition for a new school building in the Goodlettsville, Tennessee, area, which petition was signed by the officers and practically all members of the Good- A ffidavit o f J. E. M oss in S u p p o rt o f M otion 32a lettsville Colored P. T. A. That this request contained the express statement, “ We do not want integration in Good- lettsville.” A copy of this said petition is attached hereto as Exhibit “ A ” to this affidavit and the original of the same is on file in the office of the Davidson County School Board. That, pursuant to the request contained in said Exhibit “A ” and in keeping with the over-all plans of the David son County School Board, a new school was constructed in the Goodlettsville, Tennessee, area serving the areas of. Ridgetop and Goodlettsville. That in May of 1954, the Davidson County School Board had under consideration the construction of a consolidated school for negroes either in the Neeley’s Bend area in the Eleventh Civil District of Davidson County, or in the Hermitage area in the Fourth Civil District of said County. At that time a large delega tion of negroes from the Neeley’s Bend area appeared be fore the School Board requesting that the school be built in the Neeley’s Bend community and, when they were ad vised by the School Board that a new white school had just been built in that area, the group responded, in substance, that they did not want their children to go to school at a white school, but wanted a negro school on a completely segregated basis. That, in other instances, various groups of negroes and individual negroes have stated to affiant and to others in affiant’s presence that they did not de sire integrated schools, but, rather, wanted the schools continued on a segregated basis. Affiant further states that the data set forth on the at tached sheet as Exhibit “ B” to this affidavit correctly re flects the information contained thereon as reflected by the records of the Davidson County Board of Education. Affiant further states that negro children are housed in better and more modern buildings than white children, Affidavit of J. E. Moss in Support of Motion 33a since, for the most part, they are in new units. All of the school buildings housing negro children have been built within the past twelve (12) years excepting the Early School in the Eighth Civil District of Davidson County and a portion of Haynes High School located in the Twelfth Civil District. These latter two units, however, have been modernized and are above average in the County for schools. Affiant further states that all of the facilities in both the negro and white schools are modern and com parable. Affiant further states that negro schools operate on the same fiscal policy as white schools in that the alloca tion of funds is on a per pupil basis with both races receiv ing funds under the same formula and that equal opportuni ties are afforded as to courses of study, text books, instruc tional material and equipment. Affiant further states that the teacher-pupil ratio for the negro pupils is 29.35 pupils per teacher and the ratio in the white schools is 28.92 pupils per teacher. Affiant further makes oath that, in the spring of each year before the conclusion of the school year, a pre-school spring registration is held in order to give information as to the number of students and location of the same for the next school year. That Henry C. Maxwell, Jr. and Ben jamin Grover Maxwell, both of whom are plaintiffs in the instant suit, completed their elementary schooling in the spring of 1960 at the Providence Public School. That dur ing the spring registration in 1960 both of these pupils registered at Haynes High School for attendance there during the school year 1960-1961. That Cleophus Driver, Christoper C. Driver and Deborah D. Driver, plaintiffs in the instant case, were students at Haynes Elementary School during the school year 1959-1960 and, having re ceived no advice of their intention to move or change their Affidavit of J. E. Moss in Support of Motion 34a schools, their names were carried forward as expected to be in attendance at Haynes Elementary School during the school year of 1960-1961. That the same situation with respect to Deborah Ruth Clark existed as with the Driver children. That the method of anticipation of attendance during the school year 1960-1961 was the same for the children listed as plaintiffs in the instant case as it was for all of the other children in Davidson County, Tennessee, similarly situated. That, in the spring of each year, the principals of each of the schools make their requests or requisitions to the School Board for the books which they will need during the ensuing year and, at that time, make their requests for rooms, temporary housing facilities, when needed, and for their teachers, all for the next school year and, based upon these requests, the Board of Education pre pares and submits its request to the County Court for school funds for the next year. Of course, there are in stances where students, for various reasons, change from one school to another, but such is not permitted by affiant or the School Board without some justification and any alteration of the planning and programming by any sub stantial group of students changing schools would com pletely disrupt and disorganize the school system. Affiant further states that any attempt on his part, or on the part of the Davidson County School System, to change from a segregated school system to an integrated school system on August 31, 1960, or thereafter, without substantial pre liminary planning, would have been chaotic in the adminis tration of the school system. That since the unfortunate incident of the burning of the Bordeaux Elementary School on September 9, 1960, your affiant and the School Board have been making every effort, through the use of makeshift classrooms, repair Affidavit of J. E. Moss in Support of Motion 35a work, use of temporary facilities such as churches and the like, and transportation of pupils to schools operated by the City of Nashville, to furnish facilities for the student body of this school. This situation has created and is con tinuing to create great confusion, hardship and difficulty on pupils, parents and school officials, and any further problems in the operation and administration of this school at this time would be highly undesirable. Further this affiant saith not. J. E. Moss Affidavit of J. E. Moss in Support of Motion Sworn to and subscribed before me, this 26th day of September, 1960. H elen M. H utchison Notary Public. My commission expires: Oct. 19, 1960 (Seal) 36a EXHIBIT “A ” TO AFFIDAVIT OF J. E. MOSS Agenda Goodlettsville, Term. Sept. 12,1955 County Broad of Ed. We the parents want a better and more comfortable school in Goodlettsville. We want a consolidated school with Bidgetop, Amqui, & Edenwold communities. We do not want Integration in Goodlettsville. We need a janitor for at least five months, since there is not a child in school old enough for the responsebility of the job. We want cool water in summer months. We need a new school because it’s impossible for one teacher to teach (8) eight grades under present conditions and give our children the attention and justice they deserve Signed by Goodlettsville Colored P. T. A. Mrs. Alice Cantrell—pres. Mrs. Beulah Cartwright—Asst. Sec. Mrs. Mattie Cartwright Sec. Mrs. Beatrice Vaughn Mrs. Lula Joyner Mrs. Jessie H. Jones Mrs. Bessie Patton Mrs. Mamie Washington Mrs. Bobbie Washington Mrs. Sadie Bell Cartwright Mrs. Ester Louise Matthews Mrs. Mary Elizabeth Mathews Mrs. Hattie M. Stanton Mrs. Mary Sue Cantrell Mrs. Rizzie Mae Joyner Mrs. Willie Johnson Mrs. Maud Joyner Ernest Matthews 37a EXHIBIT “ B” TO AFFIDAVIT OF J. E. MOSS Data on D avidson County S chools Total number of white children 44,415 Total number of negro children 2,348 Total number of County students 46,763 Total number of negro elementary schools 7 Total number of negro high schools 1 Total number of white elementary schools 62 Total number of white high schools 16 Percentage of white children 95 Percentage of negro children 5 Number of white teachers 1,536 Number of negro teachers 80 Number of white central office supervisors 20 Number of negro central office supervisors 1 Percentage of negro central office supervisors 5 Trend of population for the last five years: White Negro Total 1956 35,270 2,001 37,271 1957 37,551 2,032 39,583 1958 40,152 2,089 42,241 1959 42,614 2,281 44,895 1960 44,415 2,348 46,763 Percentage increase in the last five years-—white 26 Percentage increase in the last five years-—negro 17 Average salary 1959-60 Negro women White women Negro men White men $4,665.30 $4,380.97 $4,849.96 $4,529.35 * Taken from annual report to State Department 38a Filed: September 26, 1960 Frank White, being duly sworn, deposes and says: That he is a resident of Davidson County, Tennessee, and has been all his life ; that he served as Chairman of the Davidson County School Board from September of 1958 until September 22, 1960, and has served as a member of the Davidson County School Board for more than twenty years. That at no time prior to September 2, 1960, was any re quest ever communicated to the Davidson County School Board to his knowledge, either formally or informally, for a desegregation of the Public School System of Davidson County, and that if such had been communicated he would probably have known of it and, during the last two years as Chairman of the School Board, would have been the person on the School Board to whose attention such would have been directed. That plans for the assignment of teachers, pupils, books, transportation facilities and hous ing facilities for a school year are made in the spring next preceding the school year and that any attempt to make a complete change in the same at the beginning of the school year as would be necessitated by desegregation of the schools would be practically impossible without a complete disruption of the entire school program. That rather than there being requests for desegregation of the School System, the only communications which have been addressed to the School Board by either negroes or whites have been requests for a continuation of segregated schools. That two specific instances of such requests were in connection with the request of the Neeley’s Bend group of negroes and the Goodlettsville Colored P. T. A., both A ffidavit o f F ran k W h ite in S u p p ort o f M otion 39a of which are correctly reflected in the affidavit of J. E. Moss, which is adopted as to these particulars by affiant. Affiant further makes oath that any attempt to evolve a plan of desegregation of the Davidson County Public School on an orderly basis would require substantial plan ning, data accumulation and the like by the School Board and its staff and would consume a several months’ period of time. Further affiant saith not. F rank P. W hite Affidavit of Frank White in Support of Motion Sworn to and subscribed before me, this 26th day of September, 1960. H elen M. H utchison Notary Public. My commission expires: Oct. 19,1960 ( S e a l ) 40a Filed: September 26,1960 Melvin B. Turner, being duly sworn, deposes and says: That he is forty-five (45) years of age, is a resident of Davidson County, Tennessee, and is transportation super visor for the Davidson County Schools. That as such it is his duty and responsibility to provide public school bus transportation for all pupils attending Davidson County Public Schools who are eligible for or require such public transportation. That the Davidson County School System operates ten (10) routes serving negro school children and eighty-seven (87) routes serving white school children. That the percentage of negro children transported by public school buses of the Davidson County system is 55% and that of white children transported by such system is 48% of the total respective enrollments. Affiant, further states that, by reason of the minimum distance requirement for public school bus transportation, children living several miles from school have an advan tage over those living near the school in that a child living- less than one and one-quarter miles from school must walk or furnish his own transportation while those living farther than said distance are furnished public transporta tion by the County School System. That a child living ten or twelve miles from school is delivered in a safe, modern bus in approximately the same time it would take a child living a mile from school to walk the distance; that the child on the bus is protected from the traffic hazards to which the pedestrian child would be subjected. That affiant knows where the plaintiffs Maxwell reside, which residence is approximately four-tenths of a mile from Nolensville Road and up a dead-end street; that the Affidavit o f M elv in B . T u rn e r in S u p p o rt o f M otion 41a County public school bus which transports white students to Antioch High School would use the same pick-up point were there any white students to pick up at this corner where infant plaintiffs Maxwell take the negro school bus. That even though the distance from plaintiffs Maxwells’ said residence to Haynes High School is greater than that to Antioch High School, the actual time consumed en route by bus is approximately the same; that this results from the fact that the route travelled by the bus to Haynes High School is more direct and requires fewer stops than that to Antioch High School. That the infant plaintiffs Driver and Clark live approxi mately one mile from Bordeaux Elementary School, which fact would preclude them from being eligible for public school bus transportation; that said infant plaintiffs Driver and Clark, in riding the County School System bus from their home to Haynes High School, as they have been doing, consume no more than the amount of time which it would take them to walk from their said residence to Bor deaux Elementary School. Further this affiant saith not. M elvin B. T urner Affidavit of Melvin B. Turner in Support of Motion Sworn to and subscribed before me, this 26th day of September, 1960. My commission expires: Oct. 19,1960 (Seal) H elen M. H utchison Notary Public. 42a Motion to Strike Certain Portions of the Complaint Filed: September 26, 1960 The defendants, and each of them, move to strike cer tain portions of the complaint as follows: 1. The defendants move to strike that portion of Para graph 10 of the complaint which reads as follows: “ The plaintiffs, and members of their class, are injured by the policy of assigning teachers, principals and other school personnel on the basis of the race and color of the children attending a particular school and the race and color of the person to be assigned. As signment of school personnel on the basis of race and color is also predicated on the theory that Negro teachers, Negro principals and other Negro school per sonnel are inferior to white teachers, principals and other white school personnel and, therefore, may not teach white children.” 2. The defendants move to strike that portion of the complaint set forth as a part of the sixth ground of relief asked and specifically being that part reading as follows: “ which shall include . . . the assignment of teachers, principals and other school personnel on a nonracial basis.” Shelton L uton County Attorney for Davidson County, Tennessee Davidson County Courthouse Nashville 3, Tennessee H arlan D odson, Jr. 1106 Nashville Trust Building Nashville 3, Tennessee Attorneys for Defendants 43a Filed: September 26,1960 The defendants, and each of them, for answer to the complaint filed in this cause and answering say: 1, 2 and 3. The defendants admit the averments of Sections 1, 2 and 3 of the complaint. 4. Defendants assume that the allegations of Section 4 of the complaint are true, but neither admit nor deny the averments since they are without sufficient information to respond thereto. 5. These defendants admit the allegations of Section 5 of the complaint. 6. These defendants admit the factual averments of Sec tion 6 of the complaint, but neither admit nor deny the plaintiffs’ conclusions based thereon. 7. These defendants admit the allegations of Section 7 of the complaint. 8. These defendants admit that they are and have been operating racially segregated schools as the school system of Davidson County, Tennessee, but they deny that the Negro schools are a secondary system of schools. Subject A n sw er 44a to the explanations and exceptions hereinafter set forth, these defendants admit the other allegations of Section 8 of the complaint. 9. These defendants expressly deny the allegations of the first sentence of Section 9 of the complaint, and, on the con trary, would show to the Court that the requests which they have had from Negro citizens and residents of David son County prior to September 2, 1960, have been for a continuation of racially segregated schools. 10. These defendants admit that on September 2, 1960, the infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin Grover Maxwell, presented themselves with their parents and made application for admission to the Gleneliff Junior High School, but these defendants deny that such applica tion was made timely or that it was made to the Antioch High School and deny that they could have been admitted to the Gleneliff Junior High School, whether white or Negro, but admit that they were denied admission to the Gleneliff Junior High School by reason of race or color. These plaintiffs were seeking admission to the ninth grade of Gleneliff Junior High School. These defendants further admit that the infant plaintiffs, Cleophus Driver, Chris topher C. Driver and Deborah D. Driver, presented them selves with their mother and made application for admis sion to the Bordeaux Elementary School, Cleophus Driver seeking to enter the sixth grade, Christopher C. Driver seeking to enter the fourth grade and Deborah D. Driver seeking to enter the second grade, but they deny that such application was timely. These defendants further admit Answer Answer that the plaintiff, Joe F. Clark, presented himself at the Bordeaux Elementary School and sought admission of his daughter, Deborah Ruth Clark, to the fifth grade thereof, but they deny that this application was timely. These de fendants are not advised as to the children of the plaintiff, Mrs. Robbie Davis, or as to the child of Rebert Taylor and wife, Stella Taylor, but insofar as they are advised none of these said parties have made any application or request to attend any of the public schools of Davidson County, other than those which they are now attending. In this connection these defendants would show to the Court that at the schools referred to herein, as well as other schools in the Davidson County School System, there is a preschool registration in the Spring of each year be fore the conclusion of the school year, and that the purpose of the same is to afford the school authorities data on which to complete the formulation of their plans for assignment of teachers, classrooms, pupils, books and the like for the next ensuing year. Any or all of these plaintiffs could have made application at the time of such preschool registra tion, and while these defendants admit in all frankness that they would not have been admitted to the so-called white schools on an integrated basis, they would show to the Court that it would have given to these defendants an opportunity to make orderly plans for the assignment of such pupils as it became necessary. Further answering the allegations of this Section of the complaint, these defendants deny the fanciful allegations that compulsory racial segregation imposes unreasonable burdens upon the infant plaintiffs and other Negro chil dren similarly situated in that they are subjected to unwar ranted physical and health hazards, are deprived of oppor tunities for athletic and cultural development, that their 46a opportunity for educational instruction and study is re duced or otherwise. On the contrary and specifically, these defendants would show to the Court that if the plaintiffs, the Maxwell children, were attending Antioch High School they would still have the same walk each morning to the school bus pick-up point, and in like manner since the school bus transportation afforded them presently is direct trans portation without the necessity of frequent stops, they leave home and arrive home at approximately the same time as white children attending Antioch High School. In similar manner, the Driver and Clark children named as infant plaintiffs would be deprived of school bus trans portation if they attended Bordeaux Elementary School, and rather than imposing unnecessary burdens upon these plaintiffs, they are presently afforded safe transportation, free from the hazard of walking along heavily traveled thoroughfares, and actually in most instances requiring less transportation time. These defendants do not admit the conclusion stated by the plaintiffs as respects the interpretation of the policy set forth in the minutes of the Board of Education of September 8,1960, but do admit that the Board has followed and is following a policy of racial segregation for the rea son that such has been the requests of all Negroes who have made their wishes known to the Board prior to Sep tember 2, 1960. While these defendants admit that class work was not commenced in the school system until Sep tember 6, 1960, they deny that the statement of the Board set forth in its quoted minutes is incorrect, and would show to the Court that the current school year had commenced with the registration on September 2, 1960, and that plans for transportation, zoning of students, distribution of school books and the like for the county-wide system is Answer 47a done in the Spring of the year; at which time each school principal makes his request for books and his requests for rooms, teachers and other facilities and at which time plans are prepared for student transportation, all of which would have been completely disorganized if the plan of school segregation were suddenly discontinued on Septem ber 2, 1960, and these defendants would show to the Court that such action by either the defendant, J. E. Moss, or the School Board, at that time would have resulted in chaos. These defendants admit that insofar as they are ad vised by the office personnel of the Board of Education an attempt was made by some persons, including some of the adult plaintiffs, to see the defendant, J. E. Moss, on Au gust 31, 1960, and/or September 1, 1960, but at that time the defendant, J. E. Moss, was so busily engaged in service training organization for all teachers and other administra tion duties necessary to the commencement of school that it was impossible for him to see such persons at that time. These defendants further admit that on the morning of September 9, 1960, a major portion of the Bordeaux Ele mentary School was destroyed by fire, and these defendants would show to the Court that such has caused great dis ruption in the operation of the Bordeaux Elementary School, but they have managed to use the remaining facili ties and some repairs thereon to house some of the stu dents, that others are being sent to other schools and that any further imposition of a change in the orderly operation of this school at this time would only increase the chaos and disruption resulting from this unfortunate incident. These defendants further admit that teachers, principals and other school personnel have been assigned in accord ance with what the School Board deemed would be in the best interest of the Board, the teachers, the schools and Answer 48a Answer the pupils, but they deny that such assignments have been based on any principle of superiority and inferiority, as evidenced by the fact that the average salary for Negro women in the Davidson County School System during the school year 1959-1960 was $4,665.30, as contrasted with that of white women of $4,380.97; and during the same period the average salary for Negro men in the School System was $4,849.96, while that for white men was $4,529.35; all of which appears on the records on file with the State De partment of Education of the State of Tennessee. 11. These defendants admit the allegations of Section 11 of the complaint. 12. These defendants deny the arguments and conclusions of the pleader set forth in Section 12 of the complaint, but admit that it is proper and wmuld be proper for this Court to require of these defendants, as it has of other defen dants similarly situated, the presentation of a plan for orderly pupil desegregation of the Davidson County School System where desired by Negro students. 13. These defendants deny the allegations of Section 13 of the complaint. 14. These defendants admit the allegations of Section 14 of the complaint insofar as it pertains to some of the parties plaintiff but denies that there is an actual controversy as between all parties plaintiff and the defendant and denies 49a that there is an actual controversy as to all matters set forth in the complaint. 15. These defendants aver, as heretofore set forth, that prior to September 2, 1960, they had had no request for school desegregation in the county system of Davidson County, and, on the contrary, as heretofore set forth, aver that their requests have been to the contrary. Now that they have been faced with a request for such pupil desegrega tion, they aver that they are and will proceed in good faith and with all reasonable promptness to implement the princi ples announced by the Supreme Court of the United States in May of 1955 in the case of Brown v. Board of Education of Topeka, Kansas. These defendants aver that this deci sion recognized as a fact that there are complexities and obstacles demanding that the situation be studied and an intelligent plan formulated consistent with the various pub lic and private interests involved. They aver that they and their predecessors in office have created and established and are presently maintaining a public school system of high quality with facilities afforded Negro pupils equal to or better than those afforded white pupils. Presentely there are 44,415 white children attending the Davidson County public schools and 2,348 Negro children attending such schools; presently there are 7 Negro elementary schools and one Negro high school and 62 white elementary schools and 16 white high schools; there are 1,536 white teachers and 80 Negro teachers, 20 white central office supervisors and one Negro central office supervisor. The percentage of white children is approximately 95, as contrasted with only 5 per cent Negro children, and the percentage of white teachers Answer 50a is 95, as contrasted with 5 per cent Negro teachers, and the percentage of white central office supervisors is 95, as con trasted with 5 per cent Negro central office supervisors. There are 10 bus transportation routes serving Negro children and 87 such routes serving white children, with the result that approximately 10 per cent of the bus trans portation routes serve Negro children. Negro pupils are housed in better and more modern buildings than white children, since for the most part the Negro school buildings are new, and all of the cafeterias in both the Negro and white schools are modern and comparable; further school funds are allocated on the same per pupil basis to both Negro and white schools, both races receiving funds under the same formula and both races have equal opportunity as to courses of study, text books, instructional material and equipment. W herefore, these defendants aver that there is no emer gency situation existing requiring the exercise of any extraordinary relief from this Court, but, on the contrary, these proceedings should be handled in the deliberate man ner heretofore recognized by the courts as being in compli ance with the principles enunciated by the Supreme Court of the United States. Answer 16. Any allegations of the original complaint not herein before admitted, explained or denied are here and now expressly denied. 51a And now having fully answered, these defendants pray that they be hence dismissed, or in the alternative for further orders of the Court consistent with the equities of the case and the laws of the United States and the State of Tennessee. Answer Shelton L uton County Attorney for Davidson County, Tennessee Davidson County Courthouse Nashville 3, Tennessee H arlan D odson, Jr. 1106 Nashville Trust Building Nashville 3, Tennessee Attorneys for Defendants 52a Excerpts From Transcript of Hearing, September 26, 1960 J. E. Moss, called as a witness by the plaintiffs for cross- examination on his affidavit, being first duly sworn, was examined and testified as follows: Cross Examination on Affidavit by Mr. Williams:-A' "a~ ~n~ — 52— * * * * * Q. Mr. Moss, you do have complete segregation through out, do you not? A. Yes, sir. — 53— Q. You do designate White schools and Negro schools? A. Yes. Q. You have White teaching personnel in White schools and White supervisory personnel in White schools and Negroes in Negro schools? A. Yes. Q. Is that right? A. That’s correct. Q. You wouldn’t place a Negro teacher in a White school, would you? A. We haven’t. Q. It would be against the policy of the Board to do that, wouldn’t it? A. It would. Q. Why, sir? A. Because we have been operating on a segregated basis. # * # # # — 56— * # # # * Q. If they had moved farther away from that school, closer to another, they would have been transferred, wouldn’t they? So that the fact that they were registered out at Haynes had nothing to do with their denial of ad mission. It was the policy of segregation that caused it? - 3 7 - 53a A. The two children; no, sir. Substantial registration would have, of course, brought trouble. Q. Yes, sir; but nobody presented themselves there but the Maxwells. That’s correct, is it not? A. All the Eighth Grade from Providence were carried to Haynes on spring — 57— registration. Q. I am talking about on September the 2nd, the Max well’s were the only Negro children who presented them selves at Glencliff? A. That is correct. Q. You knew, Mr. Moss, that they were actually regis tered out there by the principal, did you not, sir? A. I didn’t know that. Q. You didn’t know that they were actually registered? A. He talked to them, but I don’t think that he actually registered them. Q. Of course, you don’t know that? A. I don’t know that. Q. You don’t know that. I see. Now, Mr. Moss, if in the spring of the year—I mean, if on this date, September the 2nd, the date that administrative transfers are made, a pupil has moved or something and you all have granted transfer for administrative reasons, you wrould still have the same problems with regard to books, and so forth, that you would have had if the Maxwells had been admitted? A. The two children wouldn’t have demoralized the school, of course, from that standpoint. Q. And the four children at Bordeaux wouldn’t have demoralized the school, either, would they? A. We are talking about substantial transfers. — 58— Q. Yes. If they had just let the six in, there wouldn’t have been any great administrative problem? A. Not from the standpoint of books or teachers, no. * # # # # J. E. Moss—for Plaintiffs—Cross 54a Melvin B. Turner—for Plaintiffs—Cross —59— ̂ ̂ ^ Q. Mr. Moss, if these children were admitted to these schools now, if the Maxwell children, who have been out of school, were admitted to Glencliff or Antioch now, they would have the same time to make up that they would if they were admitted to Haynes, would they not? A. Yes, they would. Q. There wouldn’t be any administrative problem about that, would there? A. I wouldn’t say there wouldn’t be any administrative problem. If we had our children and teach ers ready to accept them, maybe there wouldn’t be too much of a problem. * * * * * —66— * * * * * M elvin B. T urner, called as a witness by the plaintiffs for cross-examination on his affidavit, being first duly sworn, was examined and testified as follow s: Cross Examination on Affidavit by Mr. Williams: * * * * * —67— Q. Isn’t it true, Mr. Turner, that there are Negro chil dren in Davidson County that have to travel as much as 100 miles a day in order to go to school? A. That is true, and Whites also. Q. But these Negro children pass White schools en route, don’t they, many of them? A. Many of them do. Q. Yes, sir. And there is no question but that the Max well children have to get up early in the morning and that they don’t get home until about dusk? A. Yes. 55a Q. Riding 24 miles a day? A. It’s about 7 :30 in the morn ing and they are home before five in the afternoon, which is a little later than the average but not as late as a whole lot of people. Q. Yes, sir. But they have to walk that half mile home after they are dropped off the bus there, don’t they? A. We don’t go up any dead-end road for less than a half- a-mile distance. J. E. Moss—for Plaintiffs—Recalled—by the Court —69— * * * * * Q. Mr. Turner, as a matter of fact, the White Schools throughout this county are scattered all over the county and are well placed so that, by and large, no White child has to ride these—very few White children have to ride these great distances that the bulk of the Negro children have to ride, isn’t that true? A. It is true that the Negro children to high school ride more distances on the average, considerably more; yes, sir. * * * * * —114— * * * * * J. E. Moss, recalled as a witness by the Court, being pre viously duly sworn, was examined and testified further as follows: Examination by the Court: Q. Now, Mr. Moss, you have heard the statements made here in court today about these young children, and I — 115— would like to ask you if the Maxwell children, the Driver children, and the Clark girl were allowed to attend the schools that they have applied to attend, would that or 56a not create any administrative problems of any kind? A. Yes, sir; I think it would. Q. Without any further relief, you understand! In other words, just limited to those particular children, would that create any problems? A. Your Honor, I wouldn’t want to say that six children would overload the system, I am not saying that. Of course, Bordeaux, as has been brought out in the affidavit, is a pretty bad situation. And, too, if I may, I would like to make this point: They are saying that there is an emergency, a hardship. Most of the hardships in our county system are caused by lack of buses rather than of buses. For instance, I would rather my child would ride a safe bus ten miles to school as to have to walk over these highways one mile. So the emer gency doesn’t exist, as I see it. * # * * * —116— * # # * # J. E. Moss—for Plaintiffs—Recalled—by the Court By the Court: Q. Are there any other problems that you think of that this would create? If there are any, I would like to hear what they are, considering the County system as a whole, taking it as a unitary system. A. Well, I certainly think there would be a good deal of friction in the high school if these children were entered in high school at this time. Q. That would apply to which children? A. Maxwell. Q. The Maxwell children? Would that apply to the other children? A. Well, there might be some friction in the other schools, I mean, where the larger children were in volved. Q. You do not anticipate any serious problem if some sensible, workable plan were formulated to desegregate 57a these schools, do you, from the standpoint of friction? A. — 117— I think the Board can work out a sensible plan, if given time. Q. What do you have to say about the time required to work out a plan? Do you have any ideas on that? A. I wouldn’t want to be too specific on that. I think Your Honor would know more of what would be a reasonable time than we would. The Court: Any further questions of Mr. Moss? Further Cross Examination by Mr. Williams: Q. Mr. Moss, you say you think there would be friction. How many children are in Antioch High School? A. I be lieve in the high-school part, there are about 900. Q. And you say that you think there will be friction if these two little boys are admitted to school there? A. I am thinking of what children will do, one to another. I am thinking about Little Bock. I am thinking what has hap pened in other schools where larger children are entered. Q. Well, don’t you have friction there among children occasionally? A. I believe there would be a different type friction here, though. Q. Well, you wouldn’t help to stir up the friction, would —118— you, Mr. Moss? A. I wouldn’t help to stir up— Q. You wouldn’t want to help to stir up the friction, would you? A. No, sir. I do not want to stir up any more friction than I can help. Q. Well, wouldn’t you think that your statement ahead of time that there would be friction would help to stir up the friction? A. Well, I think we have a precedent for that. J. E. Moss—for Plaintiffs—Recalled—Further Cross 58a Q. Yes, sir. You have the Little Rock precedent for that, don’t you, sir? A. I know no other school where— where—where they’ve started in high school besides Little Rock. At least, I don’t have— Q. (Interrupting) Little Rock is the only one that has interested you? A. No. Little Rock is the one I have in mind that started in high school as far as high-school age is concerned. Q. Well, on what facts do you predicate your thought that there would be friction, Mr. Moss? A. Well, Mr. Wil liams, in the beginning, we started out to—in a sincere way to get a committee to work out a plan of integration. We saw it coming. And I went to meetings with White parents —lig and Negro parents, and I could not find any White parents that would go along with me or would sit down with me and talk about it, and I couldn’t find any Negro parents that would do it. Now, the NAACP, your group, of course, I knew was interested in integration, but I couldn’t get my parents, White or Colored, to sit down and talk to me about it. Q. How many parents did you see, Mr. Moss? A. Well, numerous, numerous, numerous. Q. Mr. Moss, did you ever appoint a committee composed of parents? A. We had a committee. Yes, sir. We had a committee. Q. Did you ever appoint a committee composed of Negro and White parents, Mr. Moss? A. No. No. I couldn’t get that far along. Q. You say you couldn’t get that far along? A. I couldn’t get that far along. Q. Why couldn’t you get that far along? A. We first tried to start by having a staff committee of principals and teachers and— of—of both races together. J. E. Moss—for Plaintiffs—Recalled—Further Cross 59a Q. Mr. Moss, as a matter of fact, your statement to the Court that you think there might be friction, that is not an administrative problem. That is your thought based on your own prejudice and what you think is the prejudice of — 120— the community, isn’t it! A. I ’m not going to admit that I have a prejudice. Q. You have no prejudice whatsoever? A. I think there would be trouble, yes. Q. You say you have no racial prejudice whatever? A. No. I have none. Q. Then you would work and instruct your supervisory staff and your teaching personnel so as to eliminate any friction, wouldn’t you, Mr. Moss? A. I would try to, yes. Q. Well, you have been successful in everything else you have done, pretty much, in the School System, haven’t you, sir? A. No. Q. Well, Mr. Moss, when these people as you say, came over wanting segregated schools, you were able to get the Board to go along with them on that, weren’t you, sir? A. Well, there wasn’t any change there. Q. Yes, sir. Well, you frequently have problems where the parents come in and teachers and pupils come in com plaining about things, don’t you, sir? A. Yes, sir. Q. And you have been able to handle that all right ad ministratively, have you not, Mr. Moss? A. Well, they have been handled— —121— Q. Yes, sir. A. —one way or another. Q. As a matter of fact, isn’t it true that the newspapers have tried to get the County Board to do something about desegregating the County Schools ? J. E. Moss—for Plaintiffs—Recalled—Further Cross 60a Mr. Dodson: I object to that, if the Court please. The Witness: Not to my knowledge. The Court: Sustained. Mr. Williams: All right. By Mr. Williams: Q. Mr. Moss, what do you think this friction would in volve? A. I think there would be some bloodshed, fights maybe. Q. You think there would be some bloodshed? A. Yes. Q. Well, do you think there is sufficient police and law- enforcement authorities in Davidson County to handle any breaches of the peace? A. Well, they might handle it on one school or a small number, but— Q. Yes, sir. They could be handled very well on one school, couldn’t they? A. I don’t see how we can enter — 122— these two children without entering others. Our Board works on a policy that all have the same right. Q. Well, if the Court required you to enter these two and directed that, for the time being, no others would be admitted pending your submission of a complete plan, then that could be done, couldn’t it, Mr. Moss? A. We would try, if the Court says that, of course. Q. You have been willing for six years to try anything that you were ordered to do, haven’t you? A. My Board of Education tells me what to do. # # # * # J. E. Moss—for Plaintiffs—Recalled—Further Cross 61a Order Filed: October 7,1960 This cause came on to be heard the 26th day of Septem ber, 1960 before the Honorable William E. Miller, District Judge, on the entire record and especially upon the mo tions tiled by defendants to dismiss and to strike certain portions of the complaint, the affidavits and exhibits filed with said motions, the testimony of witnesses heard in open court, and upon argument and statements of counsel there on, from all of which the Court finds, holds and orders as follows: 1. The first ground of the motion to dismiss relating to omission of notarial seal on the verification of the com plaint is well taken, but the notary public being Avon N. Williams, Jr., one of the attorneys for plaintiffs, who stated to the Court in open court that omission of said seal was inadvertent, therefore, upon application of said attorney, the complaint was and is hereby allowed to be amended, and said defect cured, by said attorney affixing his official notarial seal forthwith to the verification on the original complaint filed in this cause. 2. All other grounds of defendants’ said motion to dis miss, except the fourth ground thereof, are not well taken and should be and the same are hereby overruled. 3. It is unnecessary at this time to rule upon the said fourth ground of defendants’ motion to dismiss and upon their motion to strike certain portions of the complaint; and the Court therefore reserves judgment upon said matters. (Seal) October 7, 1960 Vol. #24 Page 2 62a Order of October 7,1960 Thereupon the cause came on to be further heard by the Court upon the verified complaint as amended, the motions filed by the plaintiffs for a temporary restraining order and preliminary injunction against the defendants, the order heretofore entered by the Court directing the defendants to appear and show cause why said temporary restraining order and/or preliminary injunction should not issue, the testimony of witnesses heard in open court, the statements and argument of counsel, and the entire record, from all of which the Court finds, holds and orders as follows: 1. That action by the Court upon the motions of plaintiffs for temporary restraining order and/or preliminary in junction against the defendants, should be and the same is withheld at this time. 2. That the defendants should be and they are hereby directed to file with the Court, not later than October 19, 1960, a complete and substantial plan which will accom plish complete desegregation of the public school system of Davidson County, Tennessee in compliance with the re quirement of the Fourteenth Amendment to the Constitu tion of the United States. 3. The plaintiffs will be furnished by defendants with a copy of said plan, and may file any objections thereto not later than October 21, 1960; and hearing on such objec tions will be held before this Court at 9 :00 A.M. on October 24,1960. 63a Order of October 7,1960 The plaintiffs except to the action of the Court in with holding action on their motions for temporary restraining order and preliminary injunction. W m. E. M iller District Judge Approved as to form : Z. A lexander L ooby A von N. W illiams, Jr. Some of Attorneys for Plaintiffs S helton L uton H arlan D odson, Jr. Attorneys for Defendants Attest: A True Copy John O. A nderson, Clerk IT. S. District Court Middle District of Tennessee By K. D. H ace D. C. (Seal) October 7, 1960 Yol. #24 Page 3 64a Report of the County Board of Education of Davidson County, Tennessee Filed: October 19,1960 The defendants herein file this report pursuant to the order of this Court of September 26, 1960: 1. The defendant, County Board of Education of David son County, Tennessee, appointed a special committee of its membership, to-wit, Ferris C. Bailey, Frank White and S. L. Wright, Jr., to work in conjunction with the staff of said Board of Education in compiling a complete and substantial plan to accomplish complete desegregation of the public schools system of Davidson County, Tennessee; and this said committee, in conjunction with the staff, made such study, compiled such plan and presented the same to the County Board of Education of Davidson County, Ten nessee, on October 18, 1960. 2. After due consideration, the said County Board of Education of Davidson County, Tennessee, adopted said plan as presented by its special committee on October 18, 1960, and presents the same to this Honorable Court as its plan, in compliance with the order of this Court. 3. A copy of said report as adopted by the County Board of Education of Davidson County, Tennessee, is at tached herewith as Exhibit A to this report and made a part hereof just the same as if fully copied therein. Shelton L uton County Attorney for Davidson County, Tennessee Davidson County Courthouse Nashville 3, Tennessee H arlan D odson, Jr. 1106 Nashville Trust Building Nashville 3, Tennessee Attorneys for Defendants 65a EXHIBIT “ A ” TO REPORT OF BOARD R eport op the Special Committee op the D avidson County B oard op E ducation The special committee of the Davidson County Board of Education appointed to study and present to the Board a feasible plan for the orderly integration of the public schools of Davidson County, Tennessee, under the juris diction of the Davidson County Board of Education makes the following report: 1. This committee has consulted with the members of the staff who have made available to it all the research data which they were able to accumulate within the time allowed. In addition, the members of the committee, as well as the members of the staff, both since the date of the hearing in the United States District Court and prior thereto, have discussed with parents and teachers various approaches which might be made to the problem. Further, your committee has met with and consulted with its legal counsel and discussed with its legal counsel all various possible plans for such integration. 2. Among other plans which the committee has con sidered is the so-called Nashville Plan, which to date has worked with a minimum of difficulties since being approved by the United States District Court for the Middle District of Tennessee. The Nashville Plan has likewise been ap proved in other courts and other communities where it has been employed. Other plans calling for more expeditious integration, or integration at higher levels at the com mencement of the plan, have resulted in community dis turbances, disciplinary problems, property loss and multiple administrative difficulties. This committee from its study has recognized that in many respects the problem of effec- 66a tuating a satisfactory plan is more difficult in the David son County school system than it was in the school system of the City of Nashville. Some of the factors which bring this about are that in the City of Nashville there was a great concentration of Negro population around the schools in the City of Nashville serving only Negroes prior to the adoption of the plan, whereas in Davidson County the vari ous areas primarily populated by Negroes are greatly scat tered and are not necessarily located near to a school which has been used for the purpose of serving only Negro stu dents in the past. As a result of this factor, a greater per centage of the schools of the Davidson County system will be affected than was true in the City of Nashville system. Another highly important factor which makes the prob lem more difficult in the County system than in the system of the City of Nashville is the fact that there has been a tremendous increase of the school population in Davidson County over the past several years, with the result that all or practically all of the facilities in the County sys tem are crowded or overcrowded and more than 70 portable buildings are presently in use in order to accommodate the pupil population; even though several new schools have been opened each year for a period of fifteen years. Such a situation was not true in the City system at the time an attempt was made to integrate the schools so that the assignment of students was not complicated by the lack of physical facilities. Similarly, the teacher load in the County system in all of the schools is at a peak, which situation was not true in the City system, and this further complicates the assignment of pupils. The County school system has operated a transportation system for all students living as much as IVi miles away from the school attended. Such has never been true in the Exhibit “A ” to Report of Board 67a City system. Most of the buses operating in the County transportation system are presently operating at peak capacity, with the buses averaging about three trips per day. The bus driver is charged with the responsibility, not only of driving the bus safely in crowded traffic, but of see ing to the safety of the students as they enter or are dis charged from the bus, and likewise is charged with all discipline on the bus. Any factor which creates a greater dis ciplinary problem makes more hazardous the operation of the bus by the one driver and thus the problem of transi tion from a segregated to an integrated system is further complicated in the County system. Your committee also gave consideration to the emo tional impact upon the children of both races and concluded from its observations, studies and contacts with others that the emotional impact would be greater upon the pupils of both races in the County system than it was in the City system because in the City the two races have lived closer together and been associated together because of such proximity of residences than was true in the County, where the population is scattered. In spite of the various factors making it more difficult to apply the Nashville Plan in the County system, your committee after giving consideration to all possible plans, concluded that such was probably the only plan which would work. Such a plan would permit the young students to adjust themselves to one another at an age where there is no resentment or little resentment. Discipline is a greater problem with older children in any case and to begin at higher grade levels than the first grade would cause disci plinary problems difficult of solution and probably would even lead to violence. Further, since transportation is in volved in the County system, there ’would be less chance Exhibit “A ” to Report of Board 68a of disturbance on the school buses with the first grade students than with older children while in route to and from school, and this would permit the bus driver, who has the great responsibility of watching out for the safety of the students while loading and unloading and also coping with the traffic problems that face him on the crowded highways, to be required to devote less time as a peace officer while attempting to carry out the other duties. Your committee further gave consideration and made study of when the plan should be commenced and con cluded, based upon all factors, that certainly it should not commence prior to September 1, 1961. The school system is now approximately two months under way in the 1960-61 school year and is operating on a segregated plan, as it has historically done. Any change of organization or plan at this time would cause confusion and disruption of classes, together with a loss of valuable teaching time. In addition, it is the policy of the system not to force first grade stu dents to change schools, even after the first month of the term, although the family moves the residence to another zone because of the emotional impact of changing schools during a school year, which fact has even been recognized by the Legislature of the State, and frequently recognized by the school personnel and the parents in cases not involv ing the segregation question. In addition, the change to an integrated system will necessarily cause some anxiety on the part of parents and students and a period of several months will be needed to institute a program of orientation to this change. From a study of the situation in the City of Nashville and elsewhere, it has been found that under the plan re quests for transfer are to be anticipated, which requests require time to screen and process, and this can be done Exhibit “A” to Report of Board 69a more efficiently and in less time and with less confusion be tween the Spring registration and the beginning of the Fall Term in September of 1961. Two other factors in this connection were considered of major importance. One was that the school at Bordeaux, one of the schools where Negro children made application for enrollment, has since been destroyed by fire, and the community is being cared for in a makeshift way until a new building can be constructed. This is an additional burden on the physical facilities of the system, including the trans portation system, during this emergency period. The An tioch School, at which application has been made, is the most overcrowded school in the entire system, and at this time the addition of other students to that school would for all practical purposes be a physical impossibility. This com mittee gave consideration to the fact that the children who are applying are not the victims of hardship because the time consumed in traveling to Antioch by bus is as much as the time consumed presently by such applicants in going to Haynes High School because of the necessary stops made on the Antioch route, whereas the bus makes fewer stops and follows a more direct route to Haynes School. Considering all of these factors, your committee recom mends the following plan: Exhibit “A ” to Report of Board P L A N 1. Compulsory segregation based on race is abolished in Grade One of the Davidson County Schools for the scholastic year beginning in September 1961, and thereafter for one additional grade beginning with each subsequent school year, i.e., for Grade Two in September 1962, Grade Three in September 1963, Grade Four in September 1964, etc. 70a 2. A plan of school zoning based upon location of school buildings, transportation facilities and the most re cent scholastic census, without reference to race, will be established for the administration of the first grade, and other grades as they are desegregated according to the gradual plan. 3. Students entering the first grade will be permitted to attend the school designated for the zone in which he or she resides, subject to regulations that may become necessary in particular cases. 4. Application for transfer of first grade students, and subsequent grades according to the gradual plan, from the school of their zone to another school will be given careful consideration and will be granted when made in writing by parents, guardians, or those acting in the position of parents, when good cause therefor is / shown and when transfer is practicable and consistent with sound school administration. 5. The following will be regarded as some of the valid conditions for requesting transfer : a. When a white student would otherwise be required to attend a school previously serving colored stu dents only. b. When a colored student would otherwise be re quired to attend a school previously serving white students only. c. When a student would otherwise be required to attend a school where the majority of students in that school, or in his or her grade, are of a different race. Exhibit “A ” to Report of Board 71a 6. A plan of pupil registration to be held each Spring to aid in formulating necessary arrangements for the opening of schools in the Fall, such as available room, teaching aids, textbooks, pupil immunizations, zoning, and transportation facilities, will be continued.* 7. Transportation will be provided to all students that are eligible for bus service.* Exhibit “A ” to Report of Board This has been done for years. 72a Filed: October 21,1960 The plaintiffs, Henry C. Maxwell, Jr., et ah, respectfully object to the plan filed in the above entitled cause on or about the 19th day of October, 1960, by the defendant, County Board of Education of Davidson County, Tennes see, and specify as grounds of objection the following: 1. That the plan does not provide for elimination of racial segregation in the public schools of Davidson County “with all deliberate speed” as required by the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. 2. That the plan does not take into account the period of over six (6) years which have elapsed during which the defendant, County Board of Education of Davidson Coun ty, has completely failed, neglected and refused to comply with the said requirements of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. 3. That the additional twelve (12) year period provided in said plan is not shown to be “necessary in the public interest” and “ consistent with good faith compliance at the earliest practicable date” in accordance with the said re quirement of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. 4. That the defendants have not carried their burden of showing any substantial problems related to public school administration arising from: S pecification o f O b jection s to P lan F iled by County B oard o f E du cation o f D avid son County 73a a) “ the physical condition of the school plant” ; b) “ the school transportation system” ; c) “ personnel” ; d) “revision of school districts and attendance areas into compact units to achieve a system of determining- admission to the public schools on a nonraeial basis” ; e) “ revision of local laws and regulations which may be necessary in solving the foregoing problems” ; as specified by the Supreme Court in Brown v. Board of Education (May 31, 1955) 349 US 294, 75 S Ct 753, 99 L Ed 653, which necessitate the additional time contem plated by their plan for compliance with the constitutional requirement of a racially unsegregated public educational system. 5. That the plan is manifestly a substantially exact copy of the “ Nashville Plan” adopted by defendants without reference to the local conditions in Davidson County as a minimum plan predicated on subjective and mental fears of the defendants as to possible community hostility or friction among students, and is not supported by a showing of any objective administrative conditions or problems which legally justify its complete deprivation of the con stitutional rights of plaintiffs and all other children now in school to an integrated education by projecting the bar of segregation into the next twelve years. 6. That the plan forever deprives the infant plaintiffs and all other Negro children now enrolled in the public schools of Davidson County, of their rights to a racially Specification of Objections to Plan Filed by County Board of Education of Davidson County 74a unsegregated public education, and for this reason violates the due process and equal protection clauses of the Four teenth Amendment to the Constitution of the United States. 7. That the plan wholly ignores and fails to comply with the statement of this Court from the Bench on 26 September, 1960, holding that the individual plaintiffs “ have been denied their constitutional and legal rights” , and suggesting that they be accorded these rights by defen dants voluntarily rather than by court order, in that under the plan the individual plaintiffs can never be admitted to an integrated school and are forever deprived of their rights to a racially integrated public education in Davidson County. 8. That the plan fails to take into account recent an nexation by the City of Nashville of a large area of sur rounding Davidson County resulting in the public schools of said County becoming a part of the City of Nashville School System, which latter School System is now desegre gated from the first through the fourth grades. 9. That the plan fails to take into account the rights of the infant plaintiffs and other Negro children similarly situated and forever deprives them of their rights to enroll in and attend any technical or other special or vocational schools, summer courses and educational training of a specialized nature as to which enrollment is not based on location of residence. 10. Paragraph five (5) of the plan violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States in that Specification of Objections to Plan Filed by County Board of Education of Davidson County 75a said paragraph provides racial factors as valid conditions to support requests for transfer, and further in that the racial factors therein provided are manifestly designed and necessarily operate to perpetuate racial segregation. 11. That the plan contemplates continued maintenance and operation by defendants of “ Negro” and “white” schools substantially designated bj7 race, in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, in that it fails to make any provision for the reorganization of the entire County School System into a unitary, non- racial school system so as to include a plan for the assign ment of teachers, principals and other school personnel, as well as school children, on a nonracial basis; for the allot ment of funds, construction of schools and approval of budgets on a nonracial basis; and for the elimination of all other discriminations in the operation of the school system or in the school curriculum which are based solely on race and color. W herefore, the plaintiffs pray: 1. That the Court grant their motions for temporary re straining order and preliminary injunction so as to require the immediate admission by defendants of the individual plaintiffs to the public schools of Davidson County, Ten nessee on an unsegregated basis. 2. That the declaratory and permanent injunctive relief prayed for in their complaint be granted, said injunctive relief to be effective not later than the beginning of the Spring Semester or Term of the public schools of Davidson County in January, 1961. Specification of Objections to Plan Filed by County Board of Education of Davidson County 76a 3. That the defendants be required by the Court to re organize the entire County School System of Davidson County, Tennessee into a unitary nonracial school system, including all of the matters prayed for in the sixth prayer of the complaint filed in this cause. Respectfully submitted, Z. A lexander L ooby and A von N. W illiams, Jr. 327 Charlotte Avenue Nashville 3, Tennessee T hurgood M arshall and Jack Greenberg 10 Columbus Circle Suite 1790 New York 19, New York Attorneys\ for Plaintiffs Specification of Objections to Plan Filed by County Board of Education of Davidson County 77a Excerpts From Transcript of Hearing, October 24, 1960 # * # * * —30— J. E. Moss, called as a witness in behalf of the defen dants, being first duly sworn, was examined and testified as follows: Direct Examination : JL. 42. .££.TT w •?> "Jv* 'Tt' —53— By the Court: Q. How many colored students are there? A. Twenty- four hundred roughly. Q. As compared with how many Whites ? A. It's 47,000 - 5 4 - all together. That would be about 45,000 Whites. Q. About 45,000. By Mr. Dodson: Q. It constitutes approximately what per cent? A. Five per cent; five per cent Negro. By the Court: Q. And how many Colored schools? A. Seven Negro schools. ^ ^ — 68— # * # * * Cross Examination by Mr. Williams: Q. Mr. Moss, if the Court were to order the Board to adopt a nonracial school zone plan in Davidson County immediately— 78a Mr. Dodson: I didn’t get the first part of that question. By Mr. Williams: Q. If the Court were to order the Board to adopt a non- racial school zoning and attendance plan in Davidson County immediately, would you please tell me, sir, how many Negro students would be assigned to what schools that have been formerly white? A. If there were complete desegregation? Q. Yes, sir. A. I believe that’s something more than 40 schools and would involve more than a thousand stu dents. Q. No, what I am asking you, sir, is— A. All right. Q. —what schools would have how many Negro pupils and how many White pupils ? A. Let me answer that this way: If we integrated the first grade, there would be about - e o - os. If we go four grades, there would be 350. If we went all grades, there would be a thousand and something. Now, I couldn’t tell you, Mr. Williams, how many White children and Colored children would be in each zone, because I don’t even know how much is in each school now. I can’t carry those figures in my mind. Q. Well, what I am asking you, sir, is this: Does the Board have any information available to it as to how many Negro students will be in any one of those 40 schools? A. Oh, yes, sir. Q. Where is that information, sir? A. The boys that are coming up on attendance will have that. Q. They will furnish that information as to how many Negroes there will be in each school? A. Yes. They can tell you how many are eligible to go to each school. J. E. Moss—for Defendants—Cross 79a Q. But you do not know that yourself! A. If you will give me time to look at my figures, I can work it out, but I don’t have it from memory where I could quote it. Q. Well, sir, can you give me this information: What is the largest number of Negroes who would be in any one of those 40 schools under total integration. A. Total in tegration. Well, I judge that would be— Cumberland High —7 0 - School, I expect would have the largest number. Q. That is out in Bordeaux! A. That’s near Bordeaux, yes. Q. And approximately what would that number be, sir! A. There is about 800 there now. It would go up above a thousand. Q. You would think there would be 200 Negro pupils in Cumberland High School! A. I wouldn’t be surprised if there wouldn’t be that many. Q. That is just a guess on your part! A. That is an estimate, and of course I could—- Q. And your figures that your attendance— A. I think our attendance people could give you a better answer on that, if you will wait. Q. All right, sir. But if you integrated four grades, you’d just have 350 Negro pupils who would be eligible for in tegration among 40 schools! A. That’s correct. Q. An average of less than ten children per school! A. That’s correct. * # # # # —107— # # * * * Q. All right. Now, Mr. Moss, what schools have been built in the county in the past five years! A. Which— J. E. Moss—for Defendants—Cross 80a Q. What schools? A. What schools in the last five years? Q. Yes. A. Are you talking about White schools, now, or Colored? Q. I would like to have the White ones and the Negro - 1 0 8 - schools. A. In the last five years? Q. Yes, sir. A. That would be impossible to give it to you accurately, because we built about—I can give you the five we built last year. Gra-Mar— Q. Gra-Mar? A. And King’s Lane. Q. King’s Lane. A. Two Rivers. Q. Two Rivers. A. West Meade. Q. West Meade. A. And the fifth one— And a school we call Norman Binkley now. Q. Norman Binkley. All right, sir. How expensive were they? How much did Gra-Mar cost, roughly? A. All of them cost around $200,000, except Two Rivers, which cost about $600,000. Q. $600,000. All right, sir. And they were all built last year? A. (The witness did not reply, but nodded his head.) Q. When were they started? A. They— We entered them the first time this fall, and they were started about August or September of last year. —109— Q. August or September of ’59, and they were entered September ’60. Is that correct, sir? A. That’s correct. That’s approximately correct. I am not—I can’t remember the exact date. Q. I believe you employed new teaching staffs for those schools, or did you, sir? A. Yes. Q. How many teachers were involved in that? A. This is an estimate. J. E. Moss—for Defendants■—Cross 81a Q. It’s subject to correction. If you subsequently want to submit a written list or brochure showing* the accurate figures, that’s all right with me, sir. A. Well, there’d be somewhere between 8 and 10 in the four schools. The four schools were elementary. Two Rivers is the only high school. That had about—approximately-—started off with about 15 teachers. Q. And 8 or 10 each in the others ! A. In that neighbor hood, 8, 9, or 10 or something in that proximity. Q. I take it you have built several other White schools since 1955, have you not, sir! A. Yes, and we have built some Negro schools, too, sir. Q. I am going to get to that. Approximately how many White schools other than these five that you built last year — 110— would you say you built since 1955! A. Well, we—I couldn’t give you those by memory. I ’m afraid I might be wrong. Q. Approximately, sir. A. We built three or four each year. Q. Built three or four schools each year! A. Yes. Q. Three or four White schools each year! A. Well, three or four schools. We— Q. Three or four schools! A. Year before last I think we had two Negro schools. Q. All right, sir. Now, how many Negro schools have you built since 1955! A. Well, I believe two is all we have built in the last five years. Q. What two was that! A. In the last 12 years, we have built all of them except a portion of Haynes and Early. Q. What are the two that you have built in the past five years, sir! A. Bellevue and Charles S. Johnson. ^ J. E. Moss—for Defendants—Cross 82a J. E. Moss—for Defendants—Cross —114— Q. Now, Mr. Moss, you stated yesterday on direct exam ination that the White people had been leaving the city and coming to the county and that this made the schools over crowded. Is that correct, sir? A. That is right, Q. So that the Board has now taken the position that White children who leave the city and come to the county are entitled to crowd out Negro children who have been living in the county all their lives ? Is that the position you are taking, sir ? A. Oh, no. We— Q. Is it your defense for the admission of these six plaintiffs that Antioch and Bordeaux are overcrowded? — 115— A. Well, they are very crowded situations, yes. Q. And no doubt they contain some of the White people who have been fleeing integration in the city. Isn’t that true, sir? A. These six children would not be the prob lem. We can accept those six children as far as room is concerned. Q. I am glad to hear that, sir. A. But, under our policy, we can’t accept two ninth-graders or two any other grade without accepting all the others that come. Q. Mr. Moss, if the Court ordered you to, you could, couldn’t you? A. W e’d try our best. —116— # # # # # Q. So that wouldn’t it be true, Mr. Moss, that you would —117— eliminate some of your transportation problems, at least with regard to Negro children if they were permitted to attend the White school right there in their neighborhood, 83a rather than travel to the consolidated school? A. There would be some transportation saved. Q. There would be quite a bit of that, wouldn’t there? A. We would lose, though, in other areas. Q. In what areas, Mr. Moss? A. Well, we, for instance, would have a lot of vacant rooms if all of the Negro chil dren elected to go to the nearest school. There would be some vacant rooms. Quite a few. Q. There would be some vacant rooms in the Negro schools? A. Yes. That’s the reason we are asking for a gradual plan, Mr. Williams. Q. And this has been occasioned by your pqlicy of con tinued building of schools in an attempt to serve the Negro population on the one hand and the White population on the other? That’s correct, isn’t it? A. That is right. Q. And that was continued following the Supreme Court decision. You have built at least two schools and possibly three, by your own testimony since that time? A. Two is —1 1 8 - all I am sure about. Q. Negro schools. A. And that’s when the people came in and asked us to build them, and they didn’t want to integrate. Q. You have built more than five White ones, though, since that time ? A. Yes. Q. You say you built these schools because the people came in and asked you to build them? Sir? A. Yes, sir. Q. But you knew at that time about the Supreme Court decision, did you not? A. Yes. Q. And you knew that if a single Negro child wanted to attend an integrated school that some arrangements would have to be made, did you not, sir? A. Yes. J. E. Moss—for Defendants—Cross 84a Q. And yet you continued building segregated schools! A. We built the two small ones, yes. I would like to say this in our defense, that those schools can be used as the community grows. Q. Yes, sir, but they weren’t built for maximum use in a county school system which is operated without regard to race or color? That is true, isn’t it? They were built for maximum use under a segregated system? A. Yes. — 119— Q. And this was going on while the Board knew that it had told the Negro community that it was trying to work this matter out to comply with the Supreme Court decision? Is that correct, sir? A. Mr. Williams, we work for the people, and we have to go along with them. You can only go as fast as the people will go with you. ̂ ^ — 135— # # # # * Q. Mr. Moss, with regard to spring registration, don’t you have transfers during the year? A. Yes. Q. How many transfers would you say you have had since school began? A. I couldn’t even estimate that. We have had several. Q. You couldn’t even estimate it? A. We have had sev eral, of course. Q. It doesn’t throw the whole school system into an uproar when you have those transfers, does it, sir? A. Well, it’s some disorder, but it doesn’t throw the whole system out of kilter, no. Q. It isn’t the reason why you should stop the school system for 12 years until we get these transfers done? A. We have been on a plan of registration in the spring, and if we have any large amount of registration any other J. E. Moss—for Defendants—Cross 85a time it involves a lot of time and breaking into the program and schedules, and so forth. Q. But you don’t stop the school system and send any children home to wait for 12 years so you can get these transfers effected, do you? A. We have never sent any - 1 3 6 - child home for 12 years; no, sir. Q. You don’t send them home for as much as a week so you can get a transfer effected, do you, Mr. Moss? A. I f a child moves in here from out of the county or out of the state, of course, we have to accept his transfer. Q. But what I am talking about is this: If a child at Gra-Mar, for example, wants to transfer to another White school in the county, he doesn’t have to wait for a month in order to get that transfer effected, does he? A. His rec ords will be sent— He will tell a school where he is, and his records will be sent— A list of names will be sent to the school he is going to transfer to in the spring. Q. Yes, s ir ; but if he wants to transfer in the middle of the year, he doesn’t have to wait a month. If he has a sound administrative reason for that transfer, he doesn’t have to wait a month for that transfer? A. No. Q. Not even as much as a week? A. Oh, no. No. Q. He can do it right away, can’t he? A. Yes. * # # * # —137— # * # # # Q. As a matter of fact, Mr. Maxwell was so concerned that he came to your office several times on the day that you —138— had set aside for transfers, or before that time, in an effort to try to get some satisfaction out of you on that J. E. Moss—for Defendants—Cross 86a question. Isn’t that true? A. He only came once to see me, to my knowledge, about entering the schools. Q. And there is no question but that September the sec ond was the day set aside for pupils who wanted to trans fer in the county school system? A. As far as the date is concerned, we could have accepted those two children then, yes. Q. Yes. And— A. But we have a general plan of regis tering in the spring that we like to follow. Q. Yes, sir, but wasn’t it published in the newspaper at your behest that September second would be the day for transfers? A. Yes. Q. What is the condition of Glencliff School with refer ence to overcrowding or undercrowding? A. It’s crowded but not as much so as Antioch. Q. You have room over there for transfer students. If you had a White student who wanted to transfer from another school, room could be made for him over there? A. One or two students would make but little difference. That’s right. —139— Q. As a matter of fact, do you know that Reverend and Mrs. Maxwell’s children were actually accepted over there and registered by the principal before this question came up about zoning? A. No. Q. You didn’t know that? A. They went to the school and the principal took their names, but I don’t believe he actually— Q. Do you know that they live closer to Grlencliff than they do to Antioch, Mr. Moss, or substantially the same distance, anyway? A. Not much difference. Q. And there is no reason why they couldn’t go to Glen- cliff if they were White students? A. No, they couldn’t go to Glencliff where they live, if White. J. E. Moss—for Defendants—•Cross 87a Q. If they were White students, would they go to An tioch? A. I f they were White, they would go to Antioch, yes. Q. Regardless of how much the walls are bulging over there (I think that was the expression used), they.would go to Antioch? A. (The witness nodded his head in re sponse.) Q. Well, that’s self-evident. A. Unless there was some — 1 4 0 - special reason, then we would let them go to— Q. Well, if, as a matter of fact, what you all have said were true and it were just physically impossible for them to go to Antioch, then you would send them to Gleneliff if they were White children? A. No, not— Let me clear that. Sometimes a subject offered at one school is not offered (in high school) in another, and we permit them to go on that basis. Q. Oh, then, what you are saying is that under the policy of the Board, it would not send them to Gleneliff, it would make room for them at Antioch. Is that it? A. Two chil dren out of 1400 or 1200 is not a large number. Q. You would make room for them. All right. A. But we can’t accept two without accepting all the rest in that same class. Q. When was the Bordeaux School burned down— I mean partially burned? A. Let’s see. That exact date I could not give. Q. It was about September the 8th? A. Somewhere around the early part of September. Q. Yes, sir. Now, how many classes do you have operat ing in the two classrooms that remain and the cafeteria now? A. Let’s see. I believe there are two classes in the J. E. Moss—for Defendants—Cross 88a J. E. Moss—for Defendants—Cross —1 4 1 - remnants of the Bordeaux building, and I believe there’s about two in the church next door. Q. And you all had approximately how many students in that school, Mr. Moss? A. There was approximately 500 when it burned. Q. And 20 rooms? A. Something in that proximity, may be 18. Q. And approximately 20 teachers? A. Yes. Q. Sir? A. Eighteen or 20 teachers. Q. And you made arrangements to accommodate those children at various places, at other schools— A. That’s correct. Q. —a church next door, at what remained of the school; and I take it this was done with regard to their residence? In other words, the children who lived closest to Bordeaux School were the ones which were retained in the school and in the church next door, I would assume? A. Yes, sir. Q. The children who lived closest to King’s Lane were those who were sent over there, et cetera? A. That is cor rect. Q. And arrangements had to be made, I suppose, with these church people to use the church facilities? A. That —142— is correct. Q. Arrangements had to be made to transfer these stu dents to King’s Lane and to the other schools where you sent them. Is that correct, sir? A. Yes, sir. Q. Arrangements also had to be made to transfer teach ers to these schools? A. Yes, sir. Q. To arrange the physical facilities to accommodate them? A. That’s correct. 89a Q. I presume that you may have had achievement-level problems in grouping these children when they got to these schools where they had never been before so as to fit them into the curriculum of that school! A. That’s possible. Q. How long did it take to do that! A. It seems to me that the school burned on Wednesday night or Thursday, and we had them pretty well in school by the first of the week. Q. Four days! A. Four days, yes. But that doesn’t mean that they were all settled down and organized. It just means that we had them at the schools and ready to reorganize and re-plan and re— —143— Q. There may have been a little emotional instability as in the case of this little Negro child in the integrated school in the City that you were talking about yesterday! A. Children always have some emotional disturbance when they move, yes. Q. Yes, but they will settle down, they are probably most of them over that now! Wouldn’t you say that! A. They will get over it if they aren’t. Q. Yes, they will get over it. It won’t have a lasting per manent effect on their educational progress, will it! A. I hope not. Q. As an educator, do you think it will! A. I think that they will forget all about it in time. # # # # # —144— * # # # # Q. And you were able to do it! Now, Mr. Moss, are you familiar with the National Defense Education Act of 1958! J. E. Moss—for Defendants—Cross Mr. Dodson: What! 90a Mr. Williams: National Defense Education Act of 1958— By Mr. Williams: Q. —providing for Government aid to schools to enable them to enrich and up-grade their programs in science, mathematics, and foreign languages? A. Yes. Q. In Title III of that Act, and then they had various other titles dealing with vocational education. A. I know what you are talking about; yes, sir. Q. Has the county taken advantage of that at all? A. Yes, sir. Q. Has the County submitted projects? A. Yes, sir. Q. Are you familiar with the projects that the County has submitted under that Act? A. Yes, sir. Q. What projects have they submitted? The Court: Let’s see, now, what bearing does this - 1 4 5 - have on this case? Mr. Williams: If Your Honor please, this, in effect, defeats my purpose to have to explain it, but I will explain it, since Your Honor is interested in it. The Court: I am not interested in it unless it bears on this case. Mr. Williams: It does bear on this case. I will state that to Your Honor. I am trying to show what the County School System has done in terms of de veloping—this desegregation, in effect, constitutes a development of the County School System, if Your Honor please. The Court: Yes. J. E. Moss—for Defendants—Cross 91a Mr. Williams: And they are asking for time,' if Your Honor please. They are talking about admin istrative problems. Now, I am trying to find out how much time they have taken to deal with other administrative problems. The Court: I don’t think that is relevant at all. That is entirely different. You would have to in vestigate different factors. That would be, in effect, trying another lawsuit. What they did under some act of Congress that would up-grade all schools, it has nothing to do with segregation or integration. # # # # * _______------ —157— # # # * # Q. That under this provision in paragraph 5 of the plan, V1- —1 5 8 - setting forth these racial conditions based on a minority- race transfer, the effect of it is to permit a child to choose segregation outside of his zone but not to choose integra tion outside of his zone! That is true, isn’t it? A. The child and his parents can choose, yes. The Court: Is this identical to the City’s provi sion? The Witness: I think so. Mr. Dodson: Verbatim. Mr. Williams: It is substantially identical to the City provision, if Your Honor please, but it was not brought to this Court’s attention at the time that the City provision was approved, exactly how the City provision operates, as Mr. Moss has described. It has been operated so that instead of going to the school in his zone and there seeking a transfer, no J. E. Moss—for Defendants-—Cross 92a White child in the City has ever seen one of the al legedly integrated schools to which he was assigned, no Negro child who didn’t affirmatively seek a trans fer to an integrated school has ever seen the inte grated school to which the Nashville Board led this Court to believe he was assigned. So that this pre sents a little different, a little more than was before the Court in that case. The Court: All right, go ahead. — 159— By Mr. Williams: Q. And that is true, what I have stated, isn’t it, Mr. Moss! That’s the way the plan operates in the City and that’s the way you intend to operate it! A. That is correct. * # # # # — 160— * * # * * Q. Now, you have testified that if you integrated the first grade, you’d have 98, or 98 Negroes as against some 50,000 Whites! A. Forty-five thousand. Q. Forty-five thousand, all right. If you integrated all through the fourth grade, you would have 350 as against this 45,000! A. That’s right. Q. And if you integrated all the grades, you would only have a thousand! Is that correct! A. That is correct. — 161— Q- And if the experience in Nashville is valid, then, actu ally, if you integrated all at once, you would have less than a hundred Negroes spread among 40 schools in the county! Isn’t that true, Mr. Moss! A. First grade, yes. Q. An average of approximately two and a half pupils in In the first grade, true. J. E. Moss—for Defendants—Cross 93a approximately half of your schools which have been White! A. That is correct. Q. Yes, sir. Now, that doesn’t create any great teaching problem, does it! A. That would be the least problem, yes, that we’d have. Q. Yes, sir, that would be the least problem. What prob lem would be greater than the teacher problem! A. The greatest problem would be to desegregate all the way, of course. Q. No, sir, I mean, assuming we segregated. W e’ve got it segregated all the way now, based on the experience. A. Yes, sir. Q. W e’ve got a hundred or less than a hundred Negro students in 40 schools in the County! A. Yes. Q. I think you have got about 90-something, haven’t you! A. Eighty-some-odd. —162— Q. Eighty-some-odd. And that’s an average of approxi mately two and a half Negro pupils per school! A. (Nod ding affirmatively.) Q. What kind of problem does that create, Mr. Moss! A. That would only create a problem with the parents and students, and I think it is a problem that we could handle. Q. That would be a problem that you could handle! A. Yes. Q. All right, sir. Mr. Moss, you don’t have any evidence that integration in your higher grade levels would lead to violence, do you! A. Not based on personal experience. Q. Well, you don’t have any scientific evidence based on social studies that it would lead to violence! A. Just re ports I have read of other systems. Q. Well, you read Southern School News, don’t you! A. I have read it. J. E. Moss—for Defendants—Cross 94a Q. Do you know that there are several hundred school dis tricts in the State of Kentucky that have been desegregated and they have had violence in only two of them? You know that? A. I didn’t know that. I didn’t have that data. Q. You aren’t insisting that— Of all 768 school districts in 12 states of the South and District of Columbia which - 1 6 3 - have been desegregated, you aren’t insisting that there has been any violence in any substantial number of them? A. There has been substantial violence. I don’t know about the violence in substantial numbers. Q. Do you know of any violence or any studies of vio lence in other than the first year of the Nashville case, the Clinton case, and the Little Eock case and a couple of counties up in Kentucky? A. Those would be the major cases I have read about. Q. And the Little Eock case was a gradual plan of inte gration, wasn’t it? A. It started at the wrong end, though. Q. Well, the Nashville case was a gradual plan starting at the right end, according to you? A. I think so, yes. Q. But they had violence there? Sir? A. I don’t know whether the violence was because of starting with the first grade or not. I think not. # # # * # —374— # * # # # D r. Eugene Weinstein, a witness called on behalf of the plaintiffs, being first duly sworn, was examined and testified as follows: Direct Examination by Mr. Williams: Q. This is Dr. Eugene Weinstein? A. Yes. Q. Dr. Weinstein, that speaker doesn’t operate as a loud- Dr. Eugene Weinstein—for Plaintiffs—Direct 95a speaker. Speak loud enough so that everybody can hear you. A. They will. Q. Dr. Weinstein, you live here in Nashville, do you not? A. Yes, sir. Q. How long have you been in this locality, sir? A. A little over two years. Q. Where are you employed, sir? A. Vanderbilt Uni- —375— versity. Q. In what capacity? A. I am Associate Professor of Sociology. Q. Dr. Weinstein, where did you receive your education? A. I got my bachelor’s degree from the University of Chicago, my master’s degree from Indiana University, and my Ph.D. from Northwestern University in 1954. Q. And was your Ph.D. in the field of— A. In the field of sociology, specializing in social psychology. Q. Now, Dr. Weinstein, after your acquisition of a doc torate, did you do any further postgraduate study or re search? A. Research. I spent the years prior to coming to Vanderbilt in research and doing research in the general area of child development. I spent the immediate period of three years as a research analyst for the Children’s Bureau of the Department of Health, Education, and Welfare. Q. In Chicago? A. No, in Washington. Q. In Washington, D.C.? A. That’s right. Q. Then I take it that you would consider yourself rea sonably an expert on the subject of child development? —376— A. Reasonably well versed, yes. Q. Dr. Weinstein, have you done any recent study or a recent study on the subject of desegregation in Nashville? A. Yes, I have. Dr. Eugene Weinstein—for Plaintiffs—Direct 96a Q. Has there been any other study of the same type that you have done, made by any social scientists as far as you know? A. As far as I know, no. This is the first study of its kind. Q. Will you explain, sir, just what this study was, what it consisted of, and what your findings were? A. That would take a great deal of time, as far as defining it is concerned. Q. Well, if you will explain what it was and what it consisted of, I think I can focus the particular findings that we would like to bring out. A. This was a study of the general area of Negro attitudes and decision-making re garding desegregation. Roughly, the outlines of the study are this: given the grade-a-year plan and system of eli gibility under the Nashville plan, two groups of Negro parents are created, a group which has chosen to exercise their option and attend a desegregated school, a formerly all-White school, and a group which has the same option but has chosen to send their children to segregated schools, to the historically Negro schools. —377— The study was concerned with— Well, actually, there is a third group of parents who send their children to de segregated schools and then, subsequently, for one reason or another, withdraw them. The study was concerned with identifying the factors which were related to the choice. It was concerned with the decision to segregate or to desegregate made by the involved Negro families. Some 88 families, mothers for the most part, were intensively interviewed in the course of the study. Q. And were these findings, then, systematically accumu lated, analyzed, and conclusions reached on the basis of that? A. Yes. Dr. Eugene Weinstein—for Plaintiffs—Direct 97a Q. Now, Dr. Weinstein, based on— I should ask you when this study was made. I don’t believe you stated that. A. The bulk of the interviewing was done this past summer between the months, roughly, of about May and September. I might also add that the interviewing was done not by myself but by a trained Negro interviewer. Q. Why did you use a Negro interviewer, Dr. Weinstein! A. This is common practice in research of this kind, to use interviewers who are most likely to be able to establish —3 7 8 - rapport, get easy, frank responses from respondents. It has been discovered, in this area especially, that Negro interviewers are more effective in interviewing Negroes. Q. Now, Dr. Weinstein, getting down to some of the findings of your study, with particular reference to the group of families who did not send their children to inte grated schools, will you state what your findings were with regard to the attitudes and the reasons of the parents for that? A. The single most frequent reason given, given in roughly 40 per cent of the cases, was the difficulty or in advisability or lack of willingness on the parents’ part to separate children. Under the grade-a-year plan they would have—they had older children who were not eligible to attend the desegregated school. In order to take ad vantage of the eligibility of the younger child, they would have to split their families, split their children and send them to two different schools. This was in 19. This was mentioned as the primary reason of 19 of the 50, or roughly 40 per cent of the cases. It was a factor involved in roughly 60 per cent of the cases. Twenty-nine out of the 50 would have to split children. Q. And this was, then, according to your findings, the Dr. Eugene Weinstein—for Plaintiffs—Direct 98a Dr. Eugene Weinstein—for Plaintiffs—Direct - 3 7 9 - major reason? A. This was the most frequent single fac tor, yes. Q. Now, with specific reference to fear of friction or of violence or anything of that nature, what were your findings with regard to that? A. For the whole sample, over 90 per cent, for the whole sample, expected no difficulties. The only difficulties that were reported in the desegregated group were occurrences which had experiences which they had had in the initial weeks of desegregation back in 1957. In eight cases they did mention the telephone calls, the cars parading back and forth in front of their homes on the street, strange cars. Only four of the 50 desegregated— rather, segregated families indicated that they expected or could think of any groups or persons who might be out to make trouble for them. Q. You mean only four out of 50? A. Only four out of the 50 indicated—• Q. Of those who actually didn’t send their children? A. Actually didn’t, that’s right. Fear, I would say, fear of violence or difficulty or of economic threat (we also asked them about losing their job) was a minor factor in the decision-making process. Q. I would ask you what were the findings with regard to the feeling that the children would or would not do better in integrated schools with regard to the parents —380— who sent their children to integrated schools? A. Of the 27 families who we interviewed, sent their children to inte grated schools, were asked the following questions. One of the questions they were asked was: Do you think your child would learn more quickly, less quickly, or about the same in the integrated school? Fourteen of the 27 thought 99a that the child would learn more quickly. The rest either did not know or felt it would make no difference. There were no cases in which it was felt the child would learn more slowly. Q. So that the overwhelming majority of these parents either felt that the child would do better in school or did not know? A. Or thought that it would make no difference. Q. Or thought that it would make no difference. A. But the most frequent response was that. Q. The most frequent response was, approximately half of them said that they felt they would do better! A. They felt that their children are doing better. Q. Are doing better! A. Are doing better, yes. They have had the experience. Q. Dr. Weinstein, are there any other findings that you think are material on this, of your study that you think are material on the question of the advisability of this —3 8 1 - plan, before we get into the conclusions? A. There are one or two that have, I think, an incidental bearing, at least. One is the source of information regarding their eligibility that was reported by the parents. Q. Yes, sir. A. Newspapers and TV were reported in somewhat over half of the 88 cases. The single most fre quent source of information, interestingly, was a visit by members of some civic organization, interested in encourag ing parents to take advantage of their eligibility, informing the parent of their eligibility. There were surveys, door-to-door surveys during 1958, then again last summer, in which for the first time—in roughly 40 per cent of the cases, this was the initial main source of information, people coming around, members of these organizations, a part of this program, coming around Dr. Eugene Weinstein—for Plaintiffs—Direct 100a telling these children, or the parents, rather, that they have an eligible child. This, I think has some bearing on the current situation. Q. So that your report would tend to indicate that the parents in the City of Nashville, the majority of them were not notified by the Board of Education as to where their children should report? A. We had 13 out of the 88 cases —382— reported that they found out about their eligibility from the school. Q. Thirteen out of eighty-eight? A. This was upon mak ing inquiry at the school. Q. Now, let me ask you if this second point you have in mind, is there anything in your study to indicate whether parents who sent their children to integrated schools felt that they were emotionally upset, or isolated? A. In 24 out of 27 cases, the response was, No. In one the parent couldn’t tell. There were two instances in which the parent said that there were difficulties at first. Two out of the 27 cases reported some adjustment difficulties in the begin ning. Q. Now, Dr. Weinstein, was there anything else? Was I correct in assuming that that was the second point that you felt was relevant to this plan? A. Yes; yes. Q. Based on the findings of this survey or research, what would be some conclusions, in your opinion as an expert, that might validly be reached with regard to the grade-a- year plan which has been proposed by the Davidson County Board of Education and which I have allowed you to read? A. Well, we must distinguish between data and conclusion, data and inference. However, in experience of these par ents, one inference we might draw, I think reasonably, plausibly, is that the grade-a-year plan does impose a hard- Dr. Eugene Weinstein—for Plaintiffs—Direct 101a Dr. Eugene Weinstein—for Plaintiffs—Direct —3 8 3 - ship or does impose a factor on a number of Negro families, makes it difficult for them, in a sense discourages them to take advantage of their eligibility. This is the factor of having to split children, separate children, send them to different schools, which is purely a product of the grade- a-year system. Q. I might ask you something in regard to this. Is there something involved in this factor other than mere incon venience! Is there also a factor of fear for safety and that sort of thing! A. Not so much fear for safety, but parents did express the fact that they would like to be able, or expressed the opinion that they would like to be able to send their children together to the new situation. They would feel more comfortable if both children could go into this new kind of situation, which actually is psychologically a sound approach on the part of these parents. Q. Yes. Now, I would like to ask you this: If the pur pose of a desegregation plan is to achieve a racially non- discriminatory school system in which race is not a factor, what, in your opinion, would be the effect of the transfer provision in this plan, based on—predicated on racial fac tors, in the light of achieving that end? A. Here we move, not only with the implications of this study, so that it makes it easy for Negro families who don’t want to, to discourage —384— them actually. The transfer system in combination with the grade-a-year plan has an important effect on this family separation issue. The Nashville experience (I have some familiarity with the Nashville experience, studying it rather carefully, what information was available in preparation for the current re search) would indicate mass transfers, mass paper trans- 102a fers of Whites back into what is historically the White school, of Negroes remaining in what is historically the Negro school. I would say that the transfer provisions tend —in my opinion, tend to keep the system oriented toward a segregated system with token desegregation. This would be the major thrust, the major orientation system. Q. Then I believe you would agree with Dr. Long’s tes timony yesterday that the transfer provision in this plan is weighted and also the grade-a-year aspects of it are weighted towards officially maintaining segregation in the school system? A. Yes. For many of the same reasons that Dr. Long indicated and for reasons indicated by the current research. Q. Now, with regard to this question of emotional ad justment and disciplinary problems among older children, are you familiar with any scientific studies which have been made which are relevant to the effects of change from —3 8 5 - segregation to integration on young adult behavior? A. I could indicate two in particular. One is a doctoral dis sertation currently being written under my supervision on the Oak Ridge High School desegregation situation, comparing the attitudes of the White children in the de segregated high schools subsequent to desegregation with the attitudes of their parents. Q. I believe the high school in Oak Ridge, Tennessee, has been integrated since very shortly after the Supreme Court decision, has it not? A. Yes. These data— Students will sometimes take a while in getting their dissertation written, so the data were actually drawn shortly after the Oak Ridge high school was desegregated. The major finding of this study is that the attitudes of the children, the high school students in the desegregated Dr. Eugene Weinstein—for Plaintiffs—Direct 103a situation, the White students, are significantly more favor able to desegregation than those of their parents on, not only their general attitudes, but there was listed point by point such things as eating in the cafeterias, attending dances together, joint use of the swimming pool, and that. And, oh, some 20-odd specific areas of desegregation rele vant to the high school situation. This is one piece of research. There is another, a very large scale research conducted —386— during World War II, reported in the monumental work, The American Soldier, attempting to assess the influence of desegregation under combat conditions, the influence of desegregation, of experimental integration of Negro pla toons into White companies on White attitudes, on preju dice, or attitudes toward the Negro; and it was found that White companies who had integration experience— And these were matched on all kinds of significant variables. The general tenor of the findings was that the greater the degree of contact with Negro troops—the greater the de gree of integration in the company, rather, the more favor able were the attitudes of the Whites toward integration in that company. From this study, from general studies of the relationship of contact to attitudes and prejudice, the general conclusion has been drawn that contact under conditions of equality, so that a master-servant relationship will not affect— This is contact, but it doesn’t affect attitude. But contact under conditions of equality and a common task tends to have the effect of reducing intergroup prejudice. Q. Dr. Weinstein, I believe you said you had done con siderable research on child development? A. Yes. I pub lished numerous papers, two books. Dr. Eugene Weinstein—for Plaintiffs—Direct 104a Q. You have written two books on the subject! A. Yes. —387— One currently in preparation. I have had some experience in this area. Q. Yes. In your opinion, would it be possible in an edu cational situation to evaluate whether or not a child could achieve competently on any given level on the basis of six weeks or two months, on the basis of the examination of his records for a period of six weeks to two months, as has been testified here by Mr. Moss! A. No. Spelling tests, arithmetic tests, tests of this nature, which are highly variable, even more variable than achievement-level tests which account for a much broader range, I think it would be extremely difficult to make a reliable prediction on the basis of future progress with regard to either educational or emotional adjustment on the basis of this kind of information. Q. Based on your experience and training as a social psychologist— A. Yes. Q. —also, would it be your opinion that a child who had been in a racially segregated school, and had transferred to a racially integrated school would undergo some period of emotional adjustment! A. Yes. One would think it’s likely. Q. Would he undergo some period of perhaps scholastic adjustment if there were a history of lower achievement - 3 8 8 - levels in the— A. Yes. Q. Among the Negro schools? A. I think Mr. Pettie in dicated, and I would agree wholeheartedly, that there is a usual correlation between emotional problems and educa tional problems. Dr. Eugene Weinstein—for Plaintiffs—Direct 105a Q. Would this period of emotional adjustment be a permanent thing, necessarily? A. Not necessarily. It de pends upon the child and upon the reasons for the emotional problem. If you had a child, for example, whose personality structure was weak, if he found it difficult to adjust in general to new situations, this might be long-range. For a normal, healthy child, it would be less likely, probably would not be a long-range problem. Unlikely would be, I ’d say. Q. Would a period of six weeks to two months be an adequate time within which to base a sound evaluation of whether or not that child would succeed in the adjustment to the situation ? Mr. Dodson: I take it he is asking for an opinion. Mr. Williams: Yes, sir. By Mr. Williams: Q. In your opinion? A. In my opinion, I would cer- —389— tainly hesitate to bet anything on the results of such an evaluation. I don’t think it’s sufficient, Q. One final question, unless you have something else, some other comment you wish to make about the plan: Dr. Weinstein, in your opinion as a sociologist or social psychologist and having lived in this community for over two years, is it, in your opinion— You have sat here throughout this trial. Have you heard any evidence given here by the defendants which, in your opinion, would pre vent the School Board of Davidson County from desegre gating the schools within one year’s time? A. Well, my opinion, in response to this question, would have to be based on the information that is available and is in my knowledge Dr. Eugene Weinstein—for Plaintiffs—Direct 106a regarding the experience of desegregation in this com munity and in other communities, the kinds of problems which have been raised, the success or lack of success in coping with these problems, and the extent to which the problems raised by the school board have been comparable to those raised at the time in desegregating other systems. I would not regard, in my opinion (let’s take it point by point) the problems of school discipline on the school bus or increased discipline on the school bus as in itself suf ficient objection. The experience of West Virginia in de segregating its total school system has given no such indica tion, and in Kentucky as well, that school buses have turned - 3 9 0 - out to be a problem. The evidence on the achievement gap, of course, is fairly conclusive in some respects that Negroes tend to catch up quicker in a desegregated situation than they do in a segre gated situation. This is the experience in Washington, I). C. It’s the experience in Louisville, Kentucky, where the major systematic research has been done. The issue of scatter, I would think, would be favorable. Q. You mean by that the scatter of population? A. The scatter of school population, in that the numbers of children affected, the numbers of children involved in any one school— No one school would be likely to be affected, have its racial composition, for example, seriously overturned. It would not be a focusing of the problem on one or two schools, either of the educational problems— The absorp tion capacity of each school would not be taxed to the utmost in terms of, not numbers of children perhaps, but educa tional problems by having these distributed more widely. These seem to me to be grounds— on the basis of these grounds and on grounds that I—and other grounds I would think— Well, let me make one other point with respect to Dr. Eugene Weinstein—for Plaintiffs—Direct 107a this, and that is the relationship of gradualism to grade-a- year type plans, to community disturbance and disruption. There the experience is that there is no relationship. They - 3 9 1 - are as likely or as unlikely to have disruption with a gradual plan as with not, have the community upset. The Little Rock case and the Nashville incidents are examples of gradual programs which still involve, in the beginning, considerable community upset. So that in some, for these reasons— I hate to be so long- winded about this answer, but for these reasons I would think that complete desegregation would be feasible, in my opinion, for Davidson County. Q. Within one year’s time ? A. Within one year’s time. Q. Now, there is one factor that the defendants are rely ing on that you didn’t mention, and I want to ask you if you took that into consideration. They say that first-grade children adjust better than older children and that you have more disciplinary problems with the older children, I think you have covered this in your— The Court: If he has covered it, don’t ask him again. The time is slipping away. Mr. Williams: All right. By Mr. Williams: Q. You did take those factors into consideration— A. Yes. Q. —in making your opinion, didn’t you, and you con- —392— sidered the factors which you had previously discussed in considering those factors and reaching your opinion? A. Yes, sir. Dr. Eugene Weinstein—for Plaintiffs—Direct # # # # # 108a Annie P. Driver—for Plaintiffs—Direct —408— * # * # # A nnie P. D river, a witness called on behalf of the plain tiffs, being first duly sworn, was examined and testified as follows: Direct Examination by Mr. Williams: Q. This is Mrs. Annie P. Driver? A. Yes. Q. You are one of the plaintiffs in this lawsuit, are you —409— not? A. Yes, I am. Q. I believe you reside out on Hyde’s Ferry Road? A. Ido. Q. You have three children who are now in school? A. Yes. Q. What are their names and ages? A. Cleophus, Chris topher, and Deborah. Q. What grades in school are they in? A. Cleophus is in the sixth grade, and Christopher is in the fourth, and Deborah is in the second. Q. Now, Mrs. Driver, what school are your children at tending? A. They are now attending Haynes school. Q. And approximately how far is Haynes from your home? A. I would say about five or six miles. Q. How far is Bordeaux Elementary School from your home? A. Oh, less than a mile. Q. How far is Cumberland High School, if you know, Junior High? A. Oh, Cumberland High is only a few blocks. Q. Only a few blocks? A. Yes. Q. Is it within walking distance? A. Oh, yes. —410— 109a Q. Mrs. Driver, did you make application this past Sep tember for your children— A. Yes, I did, Q. —to attend Bordeaux Elementary School! A. Yes, I did. Q. And you seriously and sincerely want your children to go there! A. Yes, I do. Q. Why do you want your children to go to Bordeaux or to an integrated school! A. Bordeaux is closer. That’s one thing. And then the other thing is that I want my child to grow up without an inferior complex. For instance, now, it’s always a question as to why they can’t go to this school or why they can’t do this and do the other. And it’s quite a problem to sit down and try to explain to a child that he can’t do this or that because of his color. And I don’t want them to be prejudiced or to have any inferior in life, and I feel if they are now at this age able to enter into a school which they desire to go to, that they sincerely want to go to, that they will be better prepared in life as far as society is concerned and in any other place and have a better education than to be sent somewhere that they really —4 1 1 - are not interested in going. There, in this community where we live, they play with White children, and some of the closest— Q. You mean in your neighborhood, there are White children in the neighborhood! A. Yes. Q. And they play with them! A. And as children, they like to go where their friends are. Well, they consider them as friends, I suppose, because they do play with them, and if that is what they want, then personally, that is what I want them to have, an integrated education. So that’s why I applied for my child to go. Annie P. Driver—for Plaintiffs—Direct 110a Rev. Henry C. Maxwell—for Plaintiffs—Direct By the Court: Q. What grades are your children inf In second— A. The second, fourth and sixth. And next year Cleophus will be ready for junior high school, and I sincerely want him to go to Cumberland High School, because that is where he wants to go. By Mr. Williams: Q. Now, Mrs. Driver, do you feel that your children would get a better education—well, will get the best educa tion that they could get in a situation where the schools are segregated by pupil assignment, where the teachers are seg regated, and where everything is segregated throughout —412— the school system? A. Do I feel that they will get a bet ter— Q. Do you feel that, under this segregated system, they will get the best education that they can get? A. No, I don’t feel that way. In the first place, if it’s not what the child wants, I don’t feel that he would have any incentive to try to learn as much as he would being in a school where he sincerely wants to be, or where he feels that he would enjoy being. And for that— That is one reason that I don’t feel that he would be as eager to learn in the first place. Henky C. Maxwell, a witness called on behalf of the plaintiffs, being first duly sworn, was examined and testi fied as follows: Direct Examination by Mr. Williams: —413— Q. This is Reverend Henry C. Maxwell? A. Yes. Q. Reverend Maxwell, who are your two children? A. H. C. Maxwell, Jr., and Benjamin Grover Maxwell. 111a Q. These are two boys? A. Yes, sir. Q. They are in junior high school this year? A. Yes, sir. I might state I have more children than that, though. Q. You have some younger children in grammer school? A. Yes, I do. Q. Who are coming up? A. That’s right. Q. And I believe you, at present, live near Providence School, which has been designated by defendants as a seg regated Negro school? A. I do. Q. Elementary school? A. That is right. Q. Reverend Maxwell, where do you want your two boys to attend school, the two who are in junior high school, first-year junior high school this year? A. I want them to attend Glencliff. Q. Glencliff School? A. I do. —414— Mr. Dodson: May it please the Court, do I under stand that the record made here on the 26th will not be any part of this record? The reason I ask, it seems to me that we are going over some things in that record. Mr. Williams: I might ask that, too, Your Honor. The Court: It should be a part of the record. It can be treated as a part of the record if both parties will agree. Mr. Dodson: It seems to me it might expedite things. The Court: If both parties will agree that it may be so treated. Mr. Williams: Then that will cut this short, if Your Honor please. The Court: It may be made a part of the record here. Rev. Henry C. Maxwell—for Plaintiffs—Direct 112a Mr. Dodson: Yes, sir. The Court: All right. By Mr. Williams: Q. Reverend Maxwell, do you feel that your two boys will get the best education that they can get under a segre gated school system with the children and the teachers and everybody else segregated according to race? A. Truth fully, I do not. —415— Q. Is that one of the reasons and the major reason why you want your children to attend an integrated school? A. That’s the major reason. Q. I believe on this distance, did we cover that the last time you were up here? A. We did. Q. Well, we won’t go into that. I would like to bring this out. You are a farmer, are you not? A. Yes, sir. Q. Do you have chores for your boys there on the farm? A. I didn’t understand. Q. Do your chores, jobs for your boys to do there on the farm helping you? A. From five years old through 16, they have a task. Q. Does every minute of their afternoon time count in doing those chores? A. It do, in the interest of them and me. * # # # # —416— # # * # # Mr. Williams: May it please the Court, I under stand that it is stipulated that, if Mrs. Clark were here, she would testify with regard to the admission of her child. She has been here for yesterday and today. Rev. Henry C. Maxwell—for Plaintiffs—•Direct 113a Colloquy The Court: She would testify to what! Mr. Williams: With regard to the application for her child to go to Bordeaux. Mr. Dodson: Is she a party plaintiff? Mr. Williams: Yes, sir. Mr. Dodson: I think the bill speaks for that. The Court: I think so. So there is no attack on that. # * # * # 114a Filed: November 23,1960 This cause came on to be heard before the Honorable William E. Miller, District Judge, on October 27, 1960, and prior days of the term, upon the entire record, oral testi mony and exhibits without the intervention of a jury, brief and arguments of counsel, from all of which the Court finds and holds as follows: Findings of Fact 1. The plaintiffs, all of whom are Negro school children and their parents and are citizens and residents of David son County, Tennessee, filed this action on 19 September, 1960, seeking declaratory and injunctive relief against enforcement of the custom, practice and policy of the de fendant, County Board of Education of Davidson County and its Superintendent of Schools, J. E. Moss, requiring racial segregation in the County Schools and refusing to admit certain of the plaintiffs to certain schools solely because of their race or color. Plaintiffs also prayed for an order requiring defendants to submit a plan for re organization of the entire County School System into a unitary nonracial school system, including plans for elim ination of racial segregation in teacher and other personnel assignments, school construction, and the elimination of any other discrimination in the operation of the school system or in the school curriculum which are based solely upon race or color. 2. The defendants, Frank White; S. L. Wright, Jr.; F. K. Hardison, Jr.; Ferriss C. Bailey; E. D. Chappell; Aubrey Maxwell; and Olin White, together comprise all the duly elected members of the defendant County Board of Education of Davidson County, Tennessee, and are sued Findings o f Fact, C onclusions o f Law and Judgm ent 115a in their individual and official capacities together with said Board of Education, which is sued as a continuous body or entity. Defendant, J. E. Moss, is the duly elected or ap pointed County School Superintendent and/or Superin tendent of Public Instruction of Davidson County, and is sued in both his individual and official capacity. The Board of Education is vested with the administration, manage ment, government, supervision, control and conduct of the public schools of said County, and defendant, J. E. Moss, as administrative agent for the Board, has immediate control of the operation of the County Schools, and serves as a member of the Executive Committee of the Board. 3. The defendants, acting under color of the laws of the State of Tennessee and County of Davidson, have pursued for many years and are presently pursuing a policy, custom, practice and usage of operating a compulsory racially segregated school system in and for said County. The racially segregated school system operated by defendants consists of a system of elementary, junior high, and high schools, limited to attendance by white children and negro children, respectively, of the County of Davidson. Attend ance at the various schools is determined solely upon race and color. A dual set of school zone lines is also maintained. These lines are based solely upon race and color. One set of lines relates to the attendance areas for the Negro schools and one set to the attendance areas for the white schools. These lines overlap where Negro and white school children reside in the same residential area. 4. At the beginning of the September 1960, school term, the infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin Grover Maxwell, made application individually and/or Findings of Fact, Conclusions of Law and Judgment, November 23,1960 116a through their parents to defendants for admission or trans fer to Glencliff Junior High School and/or Antioch High School, same being “ white” schools which are nearer to their residence than Haynes High School, the “ Negro” school they are required to attend, and were refused said admission or transfer solely on account of their race or color. At the same time, the infant plaintiffs, Cleophus Driver, Christopher C. Driver, Deborah Driver, and Deborah Ruth Clark, made application individually and/or through their parents for admission or transfer to Bor deaux Elementary School, a “ white” school which is nearer to their residence than Haynes School, the “Negro” school they are recpiired to attend, and were refused admission or transfer by defendants, solely on account of their race or color. Had these infant plaintiffs been white children, they would have been admitted or transferred to the said “white” schools to which they applied. 5. The infant plaintiffs, Jacqueline Davis, Shirley Davis, George Davis, Jr., Robert Davis, Rita Davis, and Robert Rickey Taylor, reside nearer to a Negro school which they have been attending, but some of them accompanied the other plaintiffs when they made application for admission to said “white” schools, and all of them join in this action because they allege that they are being denied their right to enjoy a nondiscriminatory public education by reason of the compulsory racially segregated public school system which defendants are maintaining and operating in and for Davidson County. 6. At a preliminary hearing on 26 September, 1960, this Court reserved judgment on motions by defendants to strike and/or dismiss those portions of the complaint com Findings of Fact, Conclusions of Law and Judgment, November 23,1960 117a plaining of segregated teacher and personnel assignment, but ordered the defendants to submit a complete and sub stantial plan which will accomplish complete desegregation of the public school system of Davidson County, Tennessee in compliance with the requirement of the Fourteenth Amendment to the Constitution of the United States. 7. Pursuant to said order of the Court, the defendants subsequently tiled with the Court the following plan for desegregation of the school system : P l a n 1. Compulsory segregation based on race is abolished in Grade One of the Dhvidson County Schools for the scholastic year beginning in September 1961, and thereafter for one additional grade beginning with each subsequent school year, i.e., for Grade Two in September 1962, Grade Three in September 1963, Grade Four in September 1964, etc. 2. A plan of school zoning based upon location of school buildings, transportation facilities and the most re cent scholastic census, without reference to race, will be established for the administration of the first grade, and other grades as they are desegregated according to the gradual plan. 3. Students entering the first grade will be permitted to attend the school designated for the zone in which he or she resides, subject to regulations that may be come necessary in particular cases. 4. Application for transfer of first grade students, and subsequent grades according to the gradual plan, Findings of Fact, Conclusions of Law and Judgment, November 23,1960 118a from the school of their zone to another school will be given careful consideration and will be granted when made in writing by parents, guardians, or those acting in the position of parents, when good cause therefor is shown and when transfer is practicable and consistent with sound school administration. 5. The following will be regarded as some of the valid conditions for requesting transfer: a. When a white student would otherwise be re quired to attend a school previously serving colored students only. b. When a colored student would otherwise be re quired to attend a school previously serving white students only. c. When a student would otherwise be required to attend a school where the majority of students in that school, or in his or her grade, are of a differ ent race. 6. A plan of pupil registration to be held each Spring to aid in formulating necessary arrangements for the opening of schools in the Fall, such as available room, teaching aids, textbooks, pupil immunizations, zoning, and transportation facilities, will be con tinued.* 7. Transportation will be provided to all students that are eligible for bus service.* 8. Thereafter, the plaintiffs filed the following specifica tions of objections to said plan: Findings of Fact, Conclusions of Law and Judgment, November 23,1960 This has been done for years. 119a Specification of Objections to Plan Filed by County Board of Education of Davidson County The plaintiffs, Henry C. Maxwell, Jr., et al., respect fully object to the plan filed in the above entitled cause on or about the 19th day of October, 1960, by the de fendant, County Board of Education of Davidson County, Tennessee, and specify as grounds of objection the following: 1. That the plan does not provide for elimination of racial segregation in the public schools of Davidson County “with all deliberate speed” as required by the due process and equal protection clauses of the Four teenth Amendment to the Constitution of the United States. 2. That the plan does not take into account the period of over six (6) years which have elapsed during which the defendant, County Board of Education of Davidson County, has completely failed, neglected and refused to comply with the said requirements of the due process and equal protection clauses of the Four teenth Amendment to the Constitution of the United States. 3. That the additional twelve (12) year period pro vided in said plan is not shown to be “necessary in the public interest” and “ consistent with good faith com pliance at the earliest practicable date” in accordance with the said requirement of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Findings of Fact, Conclusions of Law and Judgment, November 23,1960 120a 4. That the defendants have not carried their burden of showing any substantial problems related to public school administration arising from: a. “ the physical condition of the school plant” ; b. “ the school transportation system” ; c. “personnel” ; d. “ revision of school districts and attendance areas into compact units to achieve a system of deter mining admission to the public schools on a non- raeial basis” ; e. “ revision of local laws and regulations which may be necessary in solving the foregoing problems” ; as specified by the Supreme Court in Brown v. Board of Education (May 31, 1955) 349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 653, which necessitate the additional time contemplated by their plan for compliance with the constitutional requirement of a racially unsegregated public educational system. 5. That the plan is manifestly a substantially exact copy of the “ Nashville Plan” adopted by defendants without reference to the local conditions in Davidson County as a minimum plan predicated on subjective and mental fears of the defendants as to possible com munity hostility or friction among students, and is not supported by a showing of any objective adminis trative conditions or problems which legally justify its complete deprivation of the constitutional rights of plaintiffs and all other children now in school to an integrated education by projecting the bar of segrega tion into the next twelve years. Findings of Fact, Conclusions of Law and Judgment, November 23, 1960 121a 6. That the plan forever deprives the infant plain tiffs and all other Negro children now enrolled in the public schools of Davidson County, of their rights to a racially unsegregated public education, and for this reason violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitu tion of the United States. 7. That the plan wholly ignores and fails to comply with the statement of this Court from the Bench on 26 September, 1960, holding that the individual plain tiffs “ have been denied their constitutional and legal rights” , and suggesting that they be accorded these rights by defendants voluntarily rather than by court order, in that under the plan the individual plaintiffs can never be admitted to an integrated school and are forever deprived of their rights to a racially integrated public education in Davidson County. 8. That the plan fails to take into account recent annexation by the City of Nashville of a large area of surrounding Davidson County resulting in the public schools of said County becoming a part of the City of Nashville School System, which latter School System is now desegregated from the first through the fourth grades. 9. That the plan fails to take into account the rights of the infant plaintiffs and other Negro children sim ilarly situated and forever deprives them of their rights to enroll in and attend any technical or other special or vocational schools, summer courses and educational training of a specialized nature as to which enrollment is not based on location of residence. Findings of Fact, Conclusions of Law and Judgment, November 23, 1960 122a 10. Paragraph five (5) of the plan violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States in that said paragraph provides racial factors as valid conditions to support requests for transfer, and fur ther in that the racial factors therein provided are manifestly designed and necessarily operate to per petuate racial segregation. 11. That the plan contemplates continued mainte nance and operation by defendants of “Negro” and “white” schools substantially designated by race, in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Consti tution of the United States, in that it fails to make any provision for the reorganization of the entire County School System into a unitary, nonracial school system so as to include a plan for the assignment of teachers, principals and other school personnel, as well as school children, on a nonracial basis; for the allotment of funds, construction of schools and approval of budgets on a nonracial basis; and for the elimination of all other discriminations in the operation of the school system or in the school curriculum which are based solely on race and color. W hereof, the plaintiffs pray: 1. That the Court grant their motions for tempo rary restraining order and preliminary injunction so as to require the immediate admission by defendants of the individual plaintiffs to the public schools of David son County, Tennessee on an unsegregated basis. Findings of Fad, Conclusions of Law and Judgment, November 23,1960 123a 2. That the declaratory and permanent injunctive relief prayed for in their complaint he granted, said injunctive relief to be effective not later than the begin ning of the Spring Semester or Term of the public schools of Davidson County in January 1961. 3. That the defendants be required by the Court to reorganize the entire County School System of David son County, Tennessee into a unitary nonracial school system, including all of the matters prayed for in the sixth prayer of the complaint filed in this cause. 9. At the hearing on said plan on 24 October 1960, the defendants offered, in support of the plan, the testimony of Mr. Ferriss C. Bailey, Chairman of the Special Commit tee of the Board charged with preparing the plan, who had been a member of the Board for several years and previously had been a member of the City of Nashville Board of Education, and who testified that the plan was prepared by the Staff, and that the Board accepted and approved the plan and that he thought it a wise plan. Mr. J. E. Moss, the County Superintendent for many years, testified as an expert that he believed the plan to be a wise and workable one; Mr. W. H. Oliver, Superintendent of Schools of the City of Nashville, testified as an expert that the Nashville grade a year “ stair-step” plan initiated under Court order in 1957 had proved a wise and workable one for Nashville. In addition, the Attendance Officer, Psy chologist and Transportation Officer of the County Schools, testified as to data relating to school population, pupil achievement levels and school bus transportation respec tively, in the County School System. Defendants also in troduced a zoning map and attendance schedule showing Findings of Fact, Conclusions of Law and Judgment, November 23, 1960 124a the projected maximum expected distribution of Negro school children in presently white County Schools under nonracial zoning. All of said staff members had several years experience in their respective positions in Davidson County, and were intimately acquainted with conditions in that county and all problems involved in desegregation therein. 10. In opposition to the plan, plaintiffs introduced the testimony of Dr. Herman Long, Director of the Depart ment of Race Relations, American Missionary Association of the Congregational Church, and teacher of Sociology in Fisk University, Nashville, Tennessee, for several years, an expert in the field of race relations in the United States; Dr. Eugene Weinstein, Assistant Professor of Sociology in Vanderbilt University, Nashville, Tennessee, an expert in the field of child development, who has conducted a recent research study of attitudes of Negro parents in volved in public school desegregation in the City of Nash ville, located within Davidson County, Tennessee; Dr. J. Masuouka, Professor of Sociology and Chairman of the Department of Social Science at Fisk University, Nashville, Tennessee for several years, an expert in the field of race relations among peoples of the world; and the plaintiffs, Henry C. Maxwell, Sr., Mrs. Annie P. Driver, and Mrs. Floy Clark (the latter by stipulation). The plaintiffs tes tified that they objected to the plan because it would pre vent their children now in school from enjoying their con stitutional rights to a nonraeially discriminatory public education, that their children wanted to enjoy such an edu cation now, and that they feel their children are being- injured by the racially segregated education they are now Findings of Fact, Conclusions of Law and Judgment, November 23,1960 125a receiving. The plaintiffs’ aforesaid expert witnesses were of the opinion that desegregation could reasonably be ef fected in the Davidson County School System within one year; and that the pupil transfer provision contained in the proposed plan, as drafted, would necessarily tend to per petuate segregation. However, these witnesses, although expert witnesses and outstanding men in their respective fields, have had no actual experience with or responsibility for the administration of the schools in Davidson County and lack the same intimate knowledge of local conditions possessed by defendants’ witnesses. 11. This Court approved in the case of the City of Nash ville a plan of gradual desegregation after considering the particular facts which prevailed in that case. This plan of gradual, desegregation, according to the testimony in this case, has worked well in the City of Nashville and has proved to be a workable and a feasible plan of desegrega tion. It has proved to be, in the opinion of the Superinten dent of City Schools, a very wise plan for this community. 12. As stated, the school authorities of Davidson County, including the members of the staff, are close to the situa tion in Davidson County, are more intimately acquainted with them and have more knowledge about them than any one else could possibly possess and the primary respon sibility rests with these authorities, whose perogatives and' rights should not be usurped by the Courts. 13. From the testimony in this case it is evident that: a. A plan of gradual desegregation works with a minimum of difficulties in this community. Findings of Fact, Conclusions of Law and Judgment, November 23,1960 126a b. Practically all of the schools of Davidson County are or may be affected by a plan of desegregation for the reason that the areas populated by Negroes are greatly scattered throughout the County. c. There has been a tremendous increase in the school population in Davidson County over the past several years, with the result that practically all of the school housing facilities are crowded or over crowded and the teacher-pupil load is at a peak in the system. d. The County school system operates a transporta tion system, which system is presently operated at peak capacity, and the bus drivers are solely charged with maintaining discipline on the bus, in addition to their other duties, so that any factor which increases or tends to increase disciplinary problems on the buses likewise increases the hazards to the safety of the pupils. Discipline among the pupils on the buses is in creased with a mixing of the races, especially when such is commenced at grade levels above the first and/ or first and second grades. e. Because the children of the two races have not been intimately associated due to proximity of resi dences in the County, a great emotional impact will be experienced by the children of both races following desegregation of the schools. f. Negro children in the higher grade levels who have not previously attended desegregated schools have an achievement level substantially below that of white children, and such disproportion in achievement level Findings of Fact, Conclusions of Law and Judgment, November 23,1960 127a increases in direct proportion to the grade of the child so that any complete desegregation, except upon a graduated basis, would create additional difficulties for the children of both races. g. Any change of organization or plan in the school system, other than at the end of a school year or a school semester, would cause confusion and disruption of classes with an accompanying loss of teacher time and student time. 14. The school in the Bordeaux community, one of the schools where the plaintiffs have made application for en rollment, has been partially destroyed by fire, and the school population there is presently being cared for on a make shift basis, with all existing facilities overtaxed. The Antioch School, one of the schools where plaintiffs made application for enrollment, is the most overcrowded school in the entire system, and the time consumed in traveling to the Antioch School by bus from the residence of these plaintiffs is as great as the time consumed by such plain tiffs in traveling by bus to the Haynes High School, to which they are presently assigned. 15. It is particularly desirable to have the school system of the City of Nashville and that of Davidson County operating on a parallel basis. Conclusions of L aw 1. This Court has jurisdiction of the parties and of this action, which is filed pursuant to Title 28, United States Code, Sections 1331, 1343, 2001 and 2202, and Title 42, United States Code, Section 1983, for injunctive and de Findings of Fact, Conclusions of Law and Judgment, November 23, 1960 128a claratory relief to redress rights of the plaintiffs secured by the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States and by the Act of May 13, 1870, Chapter 14, Section 16, 16 Stat. 144 (Title 42, United States Code, Section 1981). 2. This is a class action brought not only by the plaintiffs for their own benefit but also on behalf of all other persons similarly situated. 3. The Court at the outset considers the case with the established principle that compulsory racial segregation is unconstitutional and that the plaintiffs and those they represent are entitled to have their rights declared and enforced accordingly. 4. In approving a plan of gradual desegration in the case of the City of Nashville, after considering the par ticular facts which prevailed in that case, the Court made the statement in substance that each case must be deter mined on its own facts and that a decision elsewhere in the United States may or may not be revelant depending upon the conditions, whether or not they were comparable to the situation which prevailed here, and that, after all, this was a problem which must be determined locally and in accordance with local conditions. That case was appealed to the Court of Appeals of this Circuit, and was affirmed in a unanimous decision of that court. Thereafter at a later date the Su preme Court of the United States refused to review it by denying certiorari, which left, insofar as this Court is concerned, the decision of the Court of Appeals in full force and effect as stating correct legal principles. Findings of Fact, Conclusions of Law and Judgment, November 23, 1960 129a 5. This Court does not hold that automatically the Nash ville Plan constitutes the plan which should be applied to Davidson County. The pertinent factors must be weighed and assessed, and if the factors are substantially similar, then the precedent of that case should guide the Court in the decision of this case. If they are materially dissimilar, then that case would not apply. Considerable flexibility is involved in applying the controlling legal principle. 6. The Court must decide the case in accordance with what it thinks is a realistic plan for the community itself, considering all of the conditions and circumstances in volved, the administrative problems, the personnel prob lems, and any other relevant and pertinent factors, one of the important ones of which is the efficient and har monious operation of the school system itself. The Court must not disrupt and destroy the school system. That fact must be kept in mind always. 7. The Supreme Court has recognized the principle that the primary responsibility in assessing and weighing these factors rests with the constituted school board and author ities. 8. The Court does not have any doubt that the School Board has acted in good faith, and has fully carried the burden of proof to show the feasibility of the principal features of the proposed plan. 9. The plan presented by the defendant County Board of Education should be approved by the Court with the following exceptions and modifications: Findings of Fact, Conclusions of Law and Judgment, November 23,1960 130a a. Instead of the first grade being desegregated, as contemplated by said plan, the Court is of the opin ion and holds that the first four grades should be de segregated at one time. This will equalize the plan with the City of Nashville Plan. It is particularly desirable to have the grades of the two systems opera tion on a parallel basis. b. In view of the delay which has already occurred in regard to desegregation, the plan should be effec tive and should be put into operation (that is, the first four grades should be desegregated) at the beginning of the next school semester beginning January 1961, rather than the next school year; and the first five grades will be desegregated beginning September 1961. c. A specific provision should be included in the decree for the complete elimination of any possible discrimination with respect to the summer classes which are attended by outstanding students. In other words, facilities on a nondiscriminatory, desegregated basis will be provided for students of this type, and provision will be made to notify all teachers in the system, both colored and white, of the availability of these classes, so that there will be no doubt about the colored students having knowledge of the opportu nities made available in this respect. d. Specific notice will be given to all parents of the zone in which their children live. In other words, before the beginning of the school year, the parents of all children will receive specific notice of the zone in which their children fall for the purpose of attending classes Findings of Fact, Conclusions of Law and Judgment, November 23,1960 131a in order that there may be removed any possible donbt about some people not having full information. e. The Court will retain jurisdiction of this case throughout the period of transition. 10. The legal rights of all plaintiffs are recognized and declared but they are enforced in accordance with the provisions of the plan with the above modifications. Said plan is not a denial of the rights of the individual plain tiffs, but is a postponement in enforcement of the rights of some of the plaintiffs in the interest of the school sys tem itself and the efficient, harmonious, and workable tran sition to a desegregated method of operation. 11. Judgment should again be reserved, for the present, on defendants’ motions to strike and to dismiss certain portions of the complaint relating to segregated teacher and personnel assignment, and on the matters raised in the complaint which are involved in said motions, pending submission of further memoranda and argument of counsel. 12. The prayer of the plaintiffs for injunctive relief should be denied, except for the matters as to which judg ment is reserved. Findings of Fact, Conclusions of Law and Judgment, November 23, i960 Judgment It is accordingly ordered, adjudged and decreed as follows : 1. That the plan submitted by the County Board of Education of Davidson County, Tennessee, is approved, except in the following particulars: 132a a. Compulsory segregation based on race is abol ished in Grades One through Four of the Davidson County Schools for the Second Semester of the 1960-61 school year beginning January 1961, and thereafter for one additional grade beginning with each subsequent school year, i.e., for Grade Five in September 1961, Grade Six in September 1962, etc. b. As respects the summer classes attended by out standing students, there will be no segregation based on races, and notice of such will be immediately given by the School Board to all teachers in the Davidson County school system, both Negro and white, of the availability of these classes. c. The Davidson County School Board will, prior to the beginning of the Second Semester of the 1960-1961 school year, and prior to the beginning of each school year thereafter, give specific notice to the parents of all school children of the zone in which their children fall for the purpose of attending classes. 2. The prayer of the plaintiffs for injunctive relief be, and the same is hereby denied, except with regard to those matters as to which judgment is hereinafter reserved. 3. Jurisdiction of this case is retained by the Court throughout the period of transition. 4. Judgment is reserved on the question of the motion to strike and those portions of the motion to dismiss not Findings of Fact, Conclusions of Law and Judgment, November 23,1960 133a Findings of Fact, Conclusions of Law and Judgment, N ovem ber 23,1960 hereinbefore overruled, and on the matters raised in the complaint which are involved in said motions. To the foregoing action of the Court in approving the plan submitted by defendants and in denying plaintiffs’ prayer for injunctive relief, the plaintiffs except. This the 23rd day of November 1960. W m . E. M iller United States District Judge 134a Order, November 29, 1960 Filed: November 29, I960 In this action the Court heretofore entered its Findings of Fact, Conclusions of Law and Judgment approving with certain modifications a plan for the gradual desegregation of the public schools of Davidson County, and for admis sion of school children to the schools of the county system without discrimination on account of race. At that time, however, the Court expressly reserved judgment on the defendants’ motions to strike and dismiss certain portions of the complaint relative to segregated teacher and per sonnel assignment, and on the matters raised in the com plaint involved in said motions, including the question of injunctive relief, pending submission of further briefs and argument of counsel. Such briefs have now been submitted and the Court has given full consideration to the questions as to which judgment was reserved. Upon full consideration of the briefs, applicable authori ties, and the entire record, the Court is of the opinion that the allegations of the complaint challenged by the motions to strike and to dismiss raise issues of such character as to require an investigation upon the merits, and that such allegations should not be summarily stricken or dismissed without a hearing. Motions to strike allegations in plead ings are not favored and in case of doubt should not be sustained. It is, therefore, ordered that the motions to strike and to dismiss those portions of the complaint relating to teacher and personnel assignment be and they are hereby overruled, and that the defendants be and they are hereby allowed twenty days from date in which to further plead to the complaint. 135a Order, November 29, 1960 The Court reserves judgment as to the substantive ques tions involved, including the question of granting injunctive relief, pending a further hearing after the issues have been fully joined between the parties. W m. E. Miller United States District Judge 136a Filed: December2,1960 Come the plaintiffs and move the Court, pursuant to Rule 59 (a) (2), (e), and Rule 60 (b) (5) or (6) of the Federal Rules of Civil Procedure, for a new trial and for appropriate relief from the operation of the judgment en tered by the Court in the above cause on 23 November 1960, in the following particulars and upon the following grounds: 1. Insofar as said judgment fails to accord specific in dividual relief to the infant plaintiffs, Henry C. Maxwell, Jr., Benjamin Grover Maxwell, Cleophus Driver, and Deb orah Ruth Clark, by way of requiring their admission to the respective schools to which they applied, the judgment operates upon them inequitably and they should be granted appropriate further relief for the reasons hereinafter stated: (a) The uncontradicted proof, given by plaintiffs at the 26 September 1960 hearing, shows that when the plaintiffs, Henry C. Maxwell, Jr., and Benjamin Grover Maxwell presented themselves for enrollment at Glencliff Junior High School on 2 September 1960, they were routinely enrolled by the administrative officials at said school and assured by said officials that they wTere entitled to and would be assigned either at Glencliff or at Antioch High School, without any indication by said officials that their admission would entail any special administrative problems. (b) The proof does not show that any substantial ad ministrative problems would arise by admission of the two infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin Grover Maxwell, alone, to Glencliff Junior High School or Antioch High School. Counsel for defendants stated to the Court at the 26 September 1960 hearing as the only reason for opposing said individual relief, that other Negro children might then file suits seeking the same relief; which M otion fo r New Trial and for A p p ro p riate R e lie f 137a objection is merely speculative and insufficient to justify deprivation of the rights here involved. (c) Under the plan proposed by defendants and modified and approved by this Court in said judgment, the infant plaintiffs, Christopher C. Driver and Deborah D. Driver, and other Negro children in or below the fourth grade, will be entitled to attend Bordeaux School or one of the tem porary facilities established for its enrollment pending its repair, so that no substantial administrative problems would arise by admission to that same school of the two infant plaintiffs, Cleophus Driver and Deborah Ruth Clark, who are in the sixth and fifth grades respectively, which would not already exist by reason of the desegregation in the first four grades throughout the entire school. (d) Under said plan approved by the Court, the infant plaintiffs, Christopher C. Driver and Deborah D. Driver, will receive individual relief while their older brother, the infant plaintiff, Cleophus Driver, who would ordinarily attend the same school with them, is denied such relief without substantial administrative necessity or reason. (e) The defendants have not carried their burden of showing that the deprivation of individual relief to said four infant plaintiffs, Henry C. Maxwell, Jr., Benjamin Grover Maxwell, Cleophus Driver, and Deborah Ruth Clark, is substantially essential to the effective and feasible op eration of the plan approved by the Court in its order entered 23 November 1960. (f) The defendants have not carried their burden of showing that the deprivation of individual relief to said four of the infant plaintiffs, Henry C. Maxwell, Jr., Ben jamin Grover Maxwell, Cleophus Driver and Deborah Ruth Clark, is either “necessary in the public interest” or “con sistent with good faith compliance at the earliest practicable Motion for New Trial and for Appropriate Belief 138a date” , as required by the Fourteenth Amendment to the Constitution of the United States. (g) The proof shows that it is feasible for said four in fant plaintiffs who are deprived of individual relief by the plan as approved by the Court, to be granted such relief in addition to the operation of said plan approved by the Court. (h) Said four infant plaintiffs have a personal right under the Fourteenth Amendment to the Constitution of the United States to individual relief in cases of this kind where it is feasible to grant such relief. Wherefore, plaintiffs respectfully move the Court that they be granted a new trial and/or that the Court grant them appropriate relief from the operation of said judg ment, insofar as the judgment fails to grant individual re lief to said four infant plaintiffs, Henry C. Maxwell, Jr., Benjamin Grover Maxwell, Cleophus Driver, and Deborah Ruth Clark; to the end that the defendants be required to admit said four infant plaintiffs to the respective schools to which they applied as prayed in the complaint filed in this cause. Respectfully submitted, Z. A lexander L ooby and A von N. W illiams, Jr. 327 Charlotte Avenue Nashville 3, Tennessee T hurgood M arshall and J ack Greenberg 10 Columbus Circle Suite 1790 New York 19, N. Y. Attorneys for Plaintiffs Motion for New Trial and for Appropriate Belief 139a Filed: December 12, 1960 The plaintiffs in the above entitled case, respectfully move the Court for immediate further relief upon the grounds and in the particulars as hereinafter stated: 1. That the defendants have not given “ specific notice to the parents of all school children of the zone in which their children fall for the purpose of attending classes” , as required by the order of this Court, filed 23 November 1960; but, on the contrary, defendants have merely fur nished a form letter with an attached paper designated “ Transfer Request” to some school children through their teachers in some of the schools, with no assurance that said letters or the attached paper will reach the parents of said school children. Two of said letters, addressed to the plaintiff, Mrs. Annie P. Driver and her spouse, together with the attached “ Transfer Requests” , are appended hereto and marked as Collective Exhibits “ A ” to this motion. 2. That the aforesaid form letters and attached “ Trans fer Requests” , are misleading and are manifestly designed to mislead parents and to evade said order of this Court approving a plan for general desegregation, in that: (a) Nowhere in said letter or “ Transfer Request” is it stated that parents are given notice “ of the zone in wdiich their children fall for the purpose of attending classes” , as provided in said order of the Court. (b) The aforesaid letter states that a child may be “ trans ferred January 20,1961 to the newly zoned school” , whereas under the modified plan approved by the Court and the order of the Court providing for general desegregation of the first four grades on said date, it is not necessary for children in these grades to be “ transferred” to the school in which they “ fall for the purpose of attending classes” ; but, M o tio n o f Plaintiffs fo r F urther R e lie f 140a on the contrary, any application for transfer would and should be made “ from the school of their zone to another school” . (c) The aforesaid design and effect of misleading parents and encouraging continued maintenance of racial segrega tion is further shown by the said “ Transfer Request” form, which purports on its face not to be an application for transfer to a school other than the school in which the children “ fall for the purpose of attending classes” as or dered by this Court, but rather purports to be a request to be “ T ransferred” to the school for which the child is zoned. Said misleading and evasive design and effect is emphasized on said “ Transfer Request” form by capitalization and underlining of the word “transferred” , as indicated above, and by placing first on said form as an alleged “ choice” , the following: “ I request permission for this child to stay Motion of Plaintiffs for Further Relief (name of school) 3. Said letters of alleged notification are further mis leading and evasive in that they tend to indicate to parents of school children that they have no right to attend school on a racially desegregated basis as provided in the plan approved by this Court; but that, on the contrary, applica tion for transfer to the newly zoned school must be made on the attached “ Transfer Request” , which “ transfer” might or might not be granted by the Board in its discretion. 4. The requirement that said “ Transfer Request” be re turned to defendants “ within three days” , as contained in the aforesaid letters, is both ambiguous and unreasonable, and is designed to encourage and foster hasty action on the part of parents whom said form letters and “ Transfer Requests” reach. 141a W herefore, plaintiffs respectfully move the Court that they be granted immediate and further relief as follows: (1) That the aforesaid letters and “ Transfer Requests” sent out by the defendant Board of Education and Super intendent of Schools to school children through school teach ers employed by defendants, be declared by the Court to be void and of no effect because same are not in compliance with the aforesaid order of the Court, filed 23 November 1960 or the plan thereby approved by the Court. (2) That the defendants be required by the Court to prepare new notices which shall notify all parents directly of the desegregation plan which has been approved by the Court, and of the school in which their children fall for the purpose of attending classes; and that if any form is en closed therewith relating to application for transfer, that the application specifically indicate that same is for trans fer from the school zone in which the children fall for the purpose of attending classes, to some other school. (3) That before any such new form of notification or for transfer application be sent out to the parents as afore said, copy of same be furnished to counsel for plaintiffs and approved by the Court after hearing if same be found objectionable to the plaintiffs. Z. A lexander L ooby and A von N. W illiams, Jr. 327 Charlotte Av. Nashville 3, Tenn. T httrgood M arshall and Jack Greenberg 10 Columbus Circle Suite 1790 New York 19, N. Y. Attorneys for Plaintiffs Motion of Plaintiffs for Further Relief 142a EXHIBIT “A ” TO PLAINTIFFS’ MOTION (Letterhead of County Board of Education, Davidson County) December 5, 1960 Mr. & Mrs. Cleophas Driver 1626 Emerald Dr. Nashville, Tennessee Be: Christopher C. Name Grade: 1 2 3 (4) Dear Parents: The Davidson County Board of Education has been given a court order to fix zones for all schools regardless of race. You will note that the attached Transfer Request will indi cate the school the child is now attending and the school to which the child is zoned. Please mark Transfer Request for either, (1) Permission to remain in the school he is now attending or, (2) Be trans ferred January 20, 1961 to the newly zoned school. After you have signed the Transfer Request and marked an X by your choice, return it to your child’s teacher within three days. Consideration will be given to your choice indicated on the Transfer Request. Sincerely yours, / s / J. E. Moss J. E. Moss Superintendent J E M :mb 143a TRANSFER REQUEST (GRADES 1-4) Christopher C. Driver Date: Dec. 5, 1960 Grade: 4 Name of Student 1626 Emerald Dr. A ddress School now attending: Haynes School zone in which yon live: Bordeaux PLEASE CHECK ONE □ I request permission for this child to stay at Haynes (name of school) □ I request permission for this child to be T ransferred on January 20, 1961 to Bordeaux (name of school) Exhibit “A ” to Plaintiffs’ Motion S ignature of P arents R emarks : 144a (Letterhead of County Board of Education, Davidson County) December 5, 1960 Mr. & Mrs. Cleophas Driver 1626 Emerald Dr. Nashville, Tennessee Be: Deborah Darnell Name Grade: 1 (2) 3 4 Dear Parents: The Davidson County Board of Education has been given a court order to fix zones for all schools regardless of race. You will note that the attached Transfer Bequest will indi cate the school the child is now attending and the school to which the child is zoned. Please mark Transfer Bequest for either, (1) Permission to remain in the school he is now attending or, (2) Be trans ferred January 20, 1961 to the newly zoned school. After you have signed the Transfer Bequest and marked an X by your choice, return it to your child’s teacher within three days. Consideration will be given to your choice indicated on the Transfer Bequest. Sincerely yours, / s / J. E. Moss J. E. Moss Superintendent Exhibit “A ” to Plaintiffs’ Motion JEM :mb 145a TRANSFER REQUEST (GRADES 1-4) Deborah Darnell Driver Date: Dec. 5, 1960 Grade: 2 N ame of Student 1626 Emerald Dr. A ddress School now attending: Haynes School zone in which yon live: Bordeaux PLEASE CHECK ONE □ I request permission for this child to stay at Haynes (name of school) □ I request permission for this child to be T r a n s f e r r e d on January 20, 1961 to Bordeaux (name of school) Exhibit “A ” to Plaintiffs’ Motion S ignature of P arents R emarks : 146a Filed: December 13, 1960 The defendants, and each of them, for further answer to the complaint filed in this cause against them and pur suant to the order of Court entered November 29, 1960, and answering say: As respects the allegations set forth in Section 8 of the complaint, these defendants admit that prior to the order of the Court heretofore entered they had been operating a compulsory racially segregated school system in and for the County of Davidson, State of Tennessee, but would further show to the Court that effective with the commence ment of the Second Semester in January of 1961, and under the plan heretofore submitted and approved as modified by this Honorable Court, such school system will thereafter cease to be a racially segregated school system on a gradual or graduated basis. These defendants admit that the school system operated by them has consisted of schools attended by white children, staffed by white teachers and white prin cipals and white sustaining personnel. These defendants deny that they have maintained a “ secondary” system of colored schools or Negro schools, but would show, if it be pertinent, that such schools are not a secondary system of schools, but a system wherein the curriculum, material, facilities and personnel are selected with the same degree of care as that used in the schools which heretofore have been for white students only. These defendants admit that such schools have been staffed entirely by Negro personnel. As respects those portions of the complaint heretofore filed set forth in Section 10 (b) not heretofore answered, these defendants deny that the assignment of school per sonnel on the basis of race and color is predicated on the theory that Negro teachers, Negro principals and other Negro school personnel are inferior to white teachers, principals and other white school personnel, as charged in S u p p lem en tal A nsw er 147a the complaint, and, on the contrary, would show to the Court that such Negro teachers, Negro principals and the like are paid comparable wages to those of the white personnel and that the average pay of such Negro personnel is greater than that of the white personnel so that there is not now and has never been any insistence on the part of these defendants as respects the superiority or inferiority of one group of teachers, principals and personnel as con trasted with the other. On the contrary, these defendants have, in accordance with good educational practices, as signed all school teachers, school principals and other school personnel on the basis of what was best for the stu dents and the educational system of the County. In making such assignments a multitude of factors are considered, to-wit, educational training, family background, residence, including rural and urban, personality, character, ability, religious affiliations, parent-teacher relationship and those intangible factors which in the judgment of the School Board must be considered in order to promulgate the best school system possible for the better education of all stu dents, be they Negro or white. In addition to actual teach ing, all school personnel must have the confidence of both the children and the parents and must engage in any well- rounded system in counselling and guidance with both the students and their parents. To the extent that race has a bearing upon these various factors aforesaid, such must be considered in the assignment of school personnel. These defendants further deny that the plaintiffs herein have any right to appear before this Honorable Court as respects the assignment of school personnel, no member of the class constituting such personnel having voiced a com plaint. These defendants further insist and would show to the Court that the assignment of school personnel is one which in the interest of a good educational system must be Supplemental Answer 148a left with the County Board of Education and that such is true as respects both white and Negro students so that no rights of the complainants or the class they represent, either constitutional or otherwise, are affected or infringed thereby. These defendants would further show to the Court that any attempt at this time by this Honorable Court, or any other court, to usurp the functions of the school board in the assignment of teachers would lead to a complete dis ruption of the school system to the detriment of both Negro and white students throughout the County, would adversely affect the orderly integration of the school system in ac cordance with the plan heretofore approved by this Honor able Court and would work to the disadvantage of all students in the public schools of the County. These defendants adopt the allegations and statements of fact set forth in their answer heretofore filed in this cause, and all allegations of the original complaint not hereinbefore admitted, explained or denied in this answer or in the original answer heretofore filed are here and now expressly denied. And now having fully answered, these defendants pray that they be hence dismissed, subject only to the previous orders of this Court in this matter. Shelton L uton County Attorney for Davidson County, Tennessee Davidson County Courthouse Nashville 3, Tennessee H arlan D odson, Jr. 1106 Nashville Trust Building Nashville 3, Tennessee Attorneys for Defendants Supplemental Answer 149a Excerpts From Transcript of Hearing, January 10, 1961 —70— J oseph R. Garrett, called as a witness in behalf of the defendants, being first duly sworn, was examined and testi fied as follow s: Direct Examination by Mr. Dodson: Q. For the record, please state your name? A. Joseph R. Garrett. Q. Mr. Garrett, your age? A. Thirty-nine. Q. Your residence? A. Davidson County. Q. Your occupation? A. Attendance teacher in charge of child welfare and attendance, Davidson County Board of Education. * # * # # —71— * * # # # Q. Now, I want to get, then, to the question of the notice following the decree of this Court and the adoption of the —7 2 - plan, what did you then do with respect to school zones and what part did you plan in it? A. We followed the Court order to establish zones. My assistant, Mr. Higgins and with the cooperation of other staff members, Mr. Detchon, of the research department, Mr. Turner, Director of Trans portation was consulted, and we therefore set out to estab lish these zones which had never been established around the Negro schools. Q. Were those zones established with regard to race or without regard to race of the students? The Court: There is nothing before the Court on that. 150a Mr. Dodson: Well, that is preliminary, really, to my next question. By Mr. Dodson: Q. They were established in accordance with a directive without regard to race ? A. That is right. Q. All right. Now— A. Certainly. Q. When that had been done, then what did you do with respect to seeing what children were affected? A. We immediately obtained the names of those children that would be affected and started to work on notifying the parents of these children. —73— Q. How many did you find would be affected, approxi mately? A. Two hundred and eighty-eight White children and 405 Negro children of grades 1 through 4 became af fected in this new zoning. Q. Did you then attempt to do anything with respect to notification of the parents of those affected ? A. Yes, sir, we consulted with our attorneys and formulated notices and letters to give these people information relative to their zone that they are now in. Q. And I believe the first letter that went out, dated December 5, 1960, with the transfer request attached, was the one that I went over with you in its entirety, changed in some respects and approved and told you to send it. Is that right, sir ? A. That’s right. Mr. Dodson: If Your Honor please, I offer this. The Court: Let it be exhibited and made a part of the record. Mr. Dodson: All right, sir, we file that as De fendant’s Exhibit No. 2. Joseph R. Garrett—for Defendants—Direct 151a The Court: Hand that to me and I will mark it. (The document referred to was received in evi dence as Defendant’s Exhibit No. 2.) By Mr. Dodson: —74— Q. Now, Mr. Garrett, that form that you used—do you have one there in front of you so that you might refer to it as we go along ? If you don’t, I will get you one. A. All right, sir. Q. That form that you used provides for it to— How was it sent out, first, to the parents? A. It was sent out to the— We had conferences with the principals and they, in turn, had conferences with their teachers, and it wms sent by the teachers to the parents—by the child to its parents. Q. All right, sir. How do you send all other notices to parents in the public school system? A. Of zone changes and so forth, when they become necessary, it is usually indi cated on their transfer ordinarily, which the child carries to its next school. Q. Well, I mean, how do you generally get messages, general messages to parents? Is it by means of the chil dren? A. Most every time. We have to use that system. Q. It is a lot less expensive? A. That’s right. Q. And a lot more complete, isn’t it? A. It facilitates things, and it is more effective. Q. Now, I notice you requested the parents to sign that. Is that right ? A. That is correct. —75— Q. Why did you do that? A. We wanted to make sure that every parent knew of their new school zone. Q. All right, sir. Did that letter and notice set out what Joseph B. Garrett—for Defendants—Direct 152a the new school zone was? A. That’s right. We filled that ont at our office. Q. Now, this particular letter went only to those who were affected by virtue of the zone changes. Is that cor rect? A. That is correct. Q. All right, sir. Now, it has two different places to indicate an optional choice. Is that correct, sir? A. That is right. Q. All right, sir. What is the first one? What is it desig nated for? A. Request permission for the child to remain at the school it is now attending. Q. In the absence of some request for the child to remain in the school that it was then attending, what would have happened? A. Will you please state that again? Q. The child had now been zoned to another school. Is that right? A. Right. Q. Now, in the absence of some request from the parent —76— for the child to remain where the child was, what would have happened to that child? A. That child would auto matically become in that zone. Q. Automatically come in the other zone? A. That’s right. Q. All right. So that had to do, then, with the request for not being placed in the zone that you would otherwise have to go to. Is that correct? A. That is correct. Q. And I asked you that because I will get back to it in a few minutes. Now, the other one had to do with what? A. Request permission for the child to be transferred on January 20, 1961. Q. Now, the use of the word “ transfer” is there. What does that word designate in the Davidson County and other Joseph R. Garrett—for Defendants—Direct 153a educational systems! A. Well, “ transfer” as required by our state registers, and so forth, any child leaving one school and going to another school is called a transfer and must be so listed and so recorded in the state register. Q. You have to advise the State Department of Educa tion of a transfer, do you not? A. That is right. —77— Q. Regardless of the reason that the child goes from one school to the other? A. That’s right. Q. Whether it has anything to do with the Court order or not? A. It is on that final report at the end of the year how many transfers we had. Those are listed sepa rately. Q. Now, then, the second box has also the word “ per mission” or something to that— What is the word used there? A. “Request permission.” Q. “ Request permission.” All right, sir, I want to know why in our discussion out there, we used the words “ re quest permission.” What happens, in other words, when a child is transferred from one school to another during the school year? What right do they have under the existing law? A. They have to make some indication that they want to move, either orally, or verbally, or written or other wise. We have to know or have something to initiate this move of this child. Q. Suppose that under normal zoning, not having to do with this case at all, a child is removed from one school zone and placed in another school zone, does that child have any right to hearings? A. Oh, yes. —78— Mr. Williams: I object to leading questions, if Your Honor please, to have this gentleman testify as to what the rights of the child are. Joseph R. Garrett—for Defendants—Direct 154a Joseph R. Garrett—for Defendants—Direct By Mr. Dodson: Q. Well, have you had any hearings about children being moved? A. Yes, we have in the past. Q. Long before this case got in this Court? A. Yes, sir. Q. It had nothing to do with race or anything else for that matter? A. That is right. Q. All right, sir. Now, of those that were sent out, this particular form, did you have any calls, or not, requesting clarification from any of the parents as to what you meant? A. There were calls, I think a few to the principals. Q. All right, sir. A. They clarified it or they, in turn, asked us and we then clarified it through them. I think it is very clear, to start with. Q. How many of these did you get back by virtue of using this system? A. We got back every one except one. —79—- Q. All of them except one with an indication and a sig nature? A. That’s right. Q. Is that correct? A. That is correct. Q. All right, sir. Now, do you recall who that was? A. It was the Driver children. The Driver parents did not return theirs. The Court: How many were sent out in all? The Witness: Two hundred and eighty-eight, plus 405. The Court: Plus 405. All right. By Mr. Dodson: Q. Six hundred ninety-three? A. Six hundred ninety- three. Q. And you got back 692? A. That is correct. 155a Q. Now, before you knew how many you were going to get back, what had you planned as your next step as to those that you didn’t hear from? A. We had planned to notify them then by mail and by securing the addresses and addressing the addresses on the envelope and mailing to that particular parent. Q. I want to ask you this: Out at the central office, do you keep the parents’ names and addresses, or is that kept —80— at the schools, or where? A. All the current records are at the school. We have the graduate records and maybe those that are transferred out of the state, but we do not have a complete record at our office. Q. And then when you originally intended, your original plan, to use the United States mail and then if you didn’t hear, what were you going to do? A. We would then give a special notice to that particular parent. Q. All right, now, when you got back all except one, did you go through the second step (that is, using ordinary mail) or did you go on to the third step using registered mail? A. We just went ahead and used registered mail, since there was only one family involved, and we wanted to make sure that family was notified. It wTas so few involved, why, we used registered mail. Q. And I want to ask you if there was then sent by registered mail a letter to the Driver parents? A. Yes, sir; it was. Q. With the same sheet attached? A. (Nodding affirma tively.) Q. For both of the children of the Drivers? A. Yes, sir. —81— Q. And did you get a United States return receipt for the delivery of that letter? A. Yes, sir. Joseph R. Garrett—for Defendants—Direct 156a Q. So do you now have in your files either the signed statement of the parents that they have gotten the notice or this registered return receipt from everybody affected? A. That’s right. Q. Do you need to retain this, or can you file this (show ing document to the witness)? A. I can file it. Mr. Dodson: We would ask, then, that this be made Defendant’s Exhibit No. 3, may it please the Court. The Court: Let it be admitted. Mr. Dodson: Letter to the Drivers dated Decem ber 19, 1960, and return receipt attached. (The document referred to was received in evi dence as Defendant’s Exhibit No. 3.) By Mr. Dodson: Q. Now, Mr. Garrett, on all of those who requested that their children be permitted to remain in the same school so that, in effect, they would not be going to the school to which they were zoned, did the Board of Education act on those requests? A. Yes, they did. —82— Q- Were the parents advised of the action? A. They have been advised that their transfer or request to remain at that school has been approved. Q. By letter, or how? A. By letter. Q. And the date of the letter? A. The letter is January the 6th. Q. 1961? A. Yes. Q. Do you have a form of that letter? A. Yes, sir. Q. Will you file that, then, as Defendant’s Exhibit No. 4? A. Yes. Joseph B. Garrett—for Defendants—Direct 157a Mr. Williams: May we see that? Mr. Dodson: Yes, I will give you a copy, here. I thought you had it. The Court: Let it be admitted. (The document referred to was received in evi dence as Defendant’s Exhibit No. 4.) By Mr. Dodson: Q. Now, then, what did you do with respect to those who wanted to go to the school in which they were zoned and which, according to your records, would be transfers? Did —83— you give them any communication? A. Yes, we did. We gave them a letter giving them more or less directions to turn in their books and check, clear their textbook record and whatever other materials that they needed to check in at their particular school, so that they would get ready to clear out January the 20th. Q. Do you have a copy of that? A. (Handed document to counsel.) Q. Will you file that letter with the blanks ? The blanks were filled in, of course? A. Oh, yes; they were filled in. Q. All right. Will you file that letter as Defendant’s Ex hibit No. 5? A. Yes. The Court: Let it be admitted. (The document referred to was received in evi dence as Defendant’s Exhibit No. 5.) By Mr. Dodson: Q. Now, then, subsequently (I don’t know that it is sub sequently, but in any event) I had first advised you, I be- Joseph R. Garrett—for Defendants—Direct 158a lieve, that these were all the letters we needed to send, hadn’t I? A. That is correct. Q. Did I change my mind about that? A. Yes, sir; you did. —84— Q. And tell you you had to send them to everybody? A. Yes, sir. Q. Did you send them to everybody? A. Yes, sir. They are in the process now. They have already left our office and they are in the process of being—everyone being noti fied, the remaining group. Q. And that is going to the people who are still in the same zone that the new zoning didn’t affect in the least? A. That’s right. Q. Does it serve any useful purpose that you know of? A. No, I cannot see— In fact, I can see where it can act ually hurt us, because—or hurt desegregation in the fact that it may get some people aroused that are not affected really. The Court: This goes to everybody? Mr. Dodson: Yes, sir, even though they are not affected in the least. By Mr. Dodson: Q. Do you have a copy of that letter? A. (Handed docu ment to Mr. Dodson.) Q. Will you file that as Defendant’s Exhibit No. 6, and I believe there are what, 45,000 or so of these that you have —85— to send? A. Forty-five, plus or minus. I couldn’t give you an exact figure on that. Joseph R. Garrett—for Defendants—Direct 159a The Court: Let it be admitted as Defendant’s Exhibit 6. (The document referred to was received in evi dence as Defendant’s Exhibit No. 6.) The Court: Now, this was sent after this motion was filed, wasn’t it! It is in the process of being sent now? Mr. Dodson: It is in the process of being sent now. By Mr. Dodson: Q. I believe the notification to you was before the mo tion, was it not, or do you recall? A. I don’t recall, but we—as soon as we could get to it. I would say that, we had— Q. You took care of the urgent ones first? A. We have been working overtime now to even get the others. The Court: It was sent January 10, 1961. It’s dated January 10th? Mr. Dodson: Dated January 10th. By Mr. Dodson: Q. Has it actually gone out from the schools, or do you - 8 6 - know? A. It is going out today. Q. Going out today. Could you get to it any sooner? A. No, we could not. We had the holidays, and schools were closed, and we have had very few operating days, actually, since that time. Mr. Dodson: You may examine. The Court: Cross-examine. Joseph B. Garrett—for Defendants—Direct 160a Cross Examination by Mr. Williams-. Q. Mr. Garrett, you are familiar with the plan which was proposed by the Board to this Court? A. I think so. Q. You had a part in the preparation of that plan? A. Well, I had a part, yes. Q. Are you familiar with paragraph 1 of that plan which states that compulsory segregation based on race is abol ished in grade 1 of the Davidson County schools for the scholastic year beginning September ’61, and so forth? A. Yes, sir. Q. Then, Mr. Garrett, why was it that this letter did not inform the parents, even the affected parents that you sent it to, that compulsory racial segregation was abolished and that they, therefore, had the right to attend schools under nonracial zoning? # * * # # —88— * # # # # Q. I will ask you, Mr. Garrett, why you did not, in your letter, state that you were giving the parents specific notice of the zone in which their children now fall for the purpose of attending classes? A. I would think that my letter states that. Q. Will you refer me to some point in there where, ac cording to your interpretation, your letter states that? It certainly doesn’t state it literally. A. In our letters to parents, we have found that you have got to be as brief as possible. Joseph R. Garrett—for Defendants—Cross The Court: Let me see that first letter. I think there is something in there, the one that had the form attached to it. 161a Mr. Dodson: Here it is. Exhibit No. 2. —89— Mr. Williams: I attached one as an exhibit to my motion, if Your Honor please, the Drivers’. The Court: Yes. What is your last question there, why you did not do what ? Mr. Williams: Counsel had stated that all that they were trying to do was to follow the direction of the Court to give specific notice to the parents of the zone in which their children fall for the purpose of attending classes. I think the language of the Court was “ to the parents of all school children of the zone in which their children fall for the purpose of at tending classes.” By Mr. Williams: Q. Now, nowhere in this letter, Mr. Garrett, can I find anything like that. And I am asking you, sir, if you will point out to me some part of the letter that you construe as being that! A. Do you understand that we filled these forms in and stated Bordeaux School? We stated the school. Q. Is your answer to the question that the fact that you attached a—this transfer request constitutes a compliance with that order of the Court? A. Yes. It’s filled in prop erly. It does. Of course, the blank form, no, but we filled those in and stated very specifically the grade. We even —90— circled the grade, if you will note there at the top, which indicates that grade 1, 2, 3, 4 had been desegregated, as ordered by the Court. Q. Mr. Garrett, was it your understanding that under the plan and under the Court’s order that children who were Joseph R. Garrett—for Defendants—Cross 162a living in the zone in which they fall for the purpose of attending classes under this plan would have a right to attend that school? A. Yes, they would have a right. Q. Well, will you kindly, then, if you please, sir, explain why you have down in the final paragraph here, “ considera tion will be given to your choice indicated on the transfer request” ? A. Well, knowing that a lot of them, as you stated even in the last hearing, a lot of them would request not to be transferred, would request to attend the school they are now in. So, therefore, we gave them that opportu nity, and also this request form did more. It gave us an opportunity to make—to get things ready, to organize, to have conferences and hope for an orderly desegregation January the 23rd. It was a study. You have to plan these things. Q. Well, now, Mr. Garrett, but you have it just reversed, your forms, though. You have it so that a parent would understand that he was transferring his child to the zone in which his child falls for the purpose of attending classes, and that you must approve that, do you not, sir, on —91— these two documents taken together? Mr. Dodson: May it please the Court, I am going to object to this line of examination. It is purely argumentative. The papers speak for themselves. Whether they are clear, whether they comply with the Court’s order, or don’t comply with the Court’s order, is not in the opinion of this man. It is in the opinion of the Court. I have given my opinion about it, be cause I was the one that approved it and thought in fairness to the school staff and board they should not be charged with it. But whether or not it does is a Joseph B. Garrett—for Defendants—Cross 163a decision for Your Honor, and what this man thinks about whether it does, it seems to me, is totally im material. The Court: Of course, the Court has to finally decide the question, but any enlightenment that he might give the Court or any explanation about it would be helpful, I ’d say. Mr. Williams: That’s all I ’m asking him, if Your Honor please. I would like his interpretation. The Witness: Would you think that our letters that we sent out, which w’e stated gave directions to that parent that made a request to go to this White school? We didn’t tell him he would have to get a transfer. We told him to check his books in, but he —92— is still considered a transfer. Our state records or register, if you are familiar with that, it requires that child to be so-called a transfer and must be put a “ W ” and a transfer on the re-entering register in the same administrative unit. By Mr. Williams: Q. Mr. Garrett, directing your attention to the second paragraph of your letter, in which you state, “ Please mark a transfer request for either (1) permission to remain in the school he is now- attending,” now, that refers to remain ing in the segregated schools, doesn’t it? A. Yes, sir. Q. “ or, (2) be transferred January 20, 1961, to the newly zoned school.” Now, the newly zoned school refers to the desegregated school, doesn’t it? A. We did not say “per mission.” We just said, “be transferred.” Q. Yes, sir. But now you want to change your statement, do you not, sir, that you didn’t tell him he’d have to be Joseph B. Garrett—for Defendants—Cross 164a transferred? A. It is indicated as a transfer, yes, because lie is leaving one school and going to another. Q. Yes, sir. And in your final paragraph of that letter you stated, “ consideration will be given to your choice in dicated on the transfer request,” did you not, sir? A. Yes. -—93— Q. Would you, under your interpretation, construe that as indicating to the parent that you would have to approve either of these things? A. Well, we knew that more of them would ask to remain, or at least we thought they would, which it turned out that way. Q. I am not asking as to your motive, but it is true that this last paragraph of the letter indicates that you would have to approve either of those things, doesn’t it? A. Not official board approval. It’s just consideration, such as planning, and so forth, and getting ready for that child to enter this White school. We might need a teacher. Q. Now, Mr. Garrett, will you cite me to the state law or the state regulation which requires that on this notice that you were ordered to give here by the Court you were re quired to state to the child who was being rezoned that he was being transferred to the rezoned school? A. Well, it’s not a state directive, I suppose, but—I don’t suppose I can. But he must be listed out— I don’t suppose I could cite him any specific wording on that at this time. —94— Q. And even if there were such a state administrative directive, that would not require you in this letter to mis lead the parent by making him think he was being trans ferred. Mr. Dodson: Object to the question, may it please the Court. Joseph B. Garrett—for Defendants—Cross 165a Mr. Williams: All right, sir, I will withdraw the question, if Your Honor please. By Mr. Williams: Q. Now, you are Director of Child Welfare and At tendance? A. Yes, sir. Q. Mr. Garrett, you have overcrowding at many, many, many schools, do you not, in your school system? A. That is true. Q. Yes, sir. And where a transfer of a child is indicated on account of some valid administrative reason, the fact that a school is overcrowded does not necessarily mean that he cannot possibly be admitted to that school, does it? A. No, sir. Q. Now, you said that you had several calls to principals asking for explanation of these forms? A. Only a few, I said. —95— Q. Only a few? A. I think one or two or three cases, very few. I think this letter must have been rather clear. Q. Well, how many Negro children stayed in the new zone? How many Negro children under your provision transferred to the newly zoned school? A. Fifty-one have indicated that they would like to attend the White school in their zone. Q. Well, Mr. Garrett, how, then, can you be so sure that your letter was clear? A. Well, as previous records indi cate, about 10 per cent of those eligible usually attend White schools, as you have indicated even in some state ments before, so it figured out just about correct, about 10 per cent. Q. Well, that 10 per cent figure came from Nashville where they had an even worse system of notification than Joseph R. Garrett—for Defendants—Cross 166a you had, didn’t they? Sir? A. I don’t know anything— I ’m not familiar with the Nashville system too well, but that is their system of notification. Q. And, as a matter of fact, presumably the Court ordered this notification in an attempt to make sure that that was correct. Is that true? A. I don’t know why they did that. Q. But you still felt like if you got the 10 per cent, that made—that this notice was clear? A. Well, we got a little - 9 6 - over 10 per cent. Maybe we did a pretty good job there. The Court: How many were there ? The Witness: Fifty-one out of 405, which runs about 12 to 15 per cent. By Mr. Williams: Q. Let me ask you, Mr. Garrett, why did you put first, “ permission to remain in the school which you are now at tending” and put second, “ be transferred to the newly zoned school” ? A. Well, I think that is just a matter— Either one could have been listed. I had that not in mind. The people and different ones helped to formulate the letter. Our lawyers approved it and helped with some of the word ing. I don’t think that would have been a factor either way, that is, which order they came in. Q. That just fell naturally? A. Because it stated so plainly what it was doing. Q. All right, stated so plainly. It is your interpretation that this letter “ advises any parent of his right to attend a desegregated school” ? A. Yes, of those affected. Q. Where is the word “ desegregated” in this letter, or in the transfer request? A. Well, I am sure that the people Joseph R. Garrett—for Defendants—Cross 167a Joseph B. Garrett—for Defendants—Cross —97— that are living there will know that school will be desegre gated. Q. You just assume that? A. Surely. Q. One more question, Mr. Garrett. Why is it that on the transfer request directing your attention to the second choice which you have designated as, “ I request permission for this child to be transferred on January 20, 1961, to” (Name of school). Why is it that you have the word “ trans ferred” in capital letters underlined? A. Because that child will— that child will become a transfer and must be transferred on all registers and must be given said transfer in order to clear books and grade placement. That teacher might not know the grade that that child is in. He needs something to take along with him to this new school. Q. The parent wouldn’t be the one who would transfer those books, would he? A. He would see that his child turned them in at the proper school. Q. Yes, sir; but it was your plan to send this second letter, which you have sent, then, informing the parent that it was necessary for his child to see the principal and have his records transferred. Isn’t that correct, sir? A. I think that is good administrative— We are trying to inform the —9 8 - people as to what direction to go in. Q. Yes, sir. In view of that, however, it was unnecessary to include the word—to magnify the word “ transferred” or even include it in your original notification giving the parent a choice of remaining in a zone to which he is assigned and calling that a transfer. That wasn’t necessary, was it, Mr. Garrett? A. Well, it could have been left out, I assume, and have had the same weight. 168a Q. Would you agree that it would have been much clearer in terms of a choice if a parent were informed that under your plan, segregation in these grades was abolished, that he now had the right to attend the school in the zone in which he fell for purposes of attending classes and that if he wished, according to the terms of your plan, he could make a transfer to the school that he is now attending? A. I think the term “ transfer” there indicates even to the average man on the street, that is, moving from one school to the other, the reason we used the word “ transfer.” Even the Negro child moving, they still speak of getting their transfer from said school. Q. And you plan or hope to follow the same notice in the future in giving these notices at the beginning of the year, I assume, Mr. Garrett. Is that correct? A. We will be instructed by our Board of Education, I suppose, on that. —99— Q. Mr. Garrett, why did you tell the parent that he had to return this within three days? A. Well, on—various notices go out. We know if you say a week or ten days, they will get in the wastepaper— We had a few lost as it was and had to replace them. We know the quicker we can get them back— They will lose them. We had to replace some. And then, too, time was running short on us. We got these things back, and then we had to do some study and preparation. The other departments of the Board of Edu cation, Mr. Wright and his department, I am sure had work —or will work them here after we know how many are coming. Q. You plan to continue in the future requiring them to be returned in three days? A. Well, time was an element here; whereas, it may not be in the next case. Q. Mr. Garrett, will you concede that of the some 250— Joseph R. Garrett—for Defendants—Cross 169a No. That would be some 340 Negro parents who, under your representation to the Court, have now elected to re main in the school in which they remain might very well not ever know that the Court not only ordered rezoning, but approved a desegregation plan? You will concede that that might be true under these notices, won’t you? A. No. — 100— Q. You won’t concede that? A. No, sir. Q. Tell me how you can be assured that these parents know that? A. Because it stated the school zones to which they were zoned in a very simple form, to me. Q. I see. Did you have any calls from Negro parents, or do you know? A. Well, of course, some calls come to our office when we are out, as we are today, but to my knowl edge, we have not. Q. Now, this method of notification, you sometimes mail notices directly to people, don’t you? A. Yes, when time is Q. You didn’t feel this was of sufficient importance to mail it directly to the parents? A. Well, we felt, too, that we could—since time was an element, that we would get our notices back and be ready to make preparation for January 20th; whereas, some of those notices would be trickling in even all the way up to the 23rd. Q. You had card addresses on all the parents, didn’t you, in the principals’ office? —103— # * # # # Mr. Williams: What I am attempting to show is that on September 2 ,1 believe it was, when Reverend and Mrs. Maxwell took their two boys to Glencliff High School, their children were registered there by Joseph B. Garrett—-for Defendants—Cross 170a Colloquy the principal without any trouble at all, and they were informed that the only question was whether —104— they would go to Clencliff or Antioch. The Court: That is in the record without a doubt. I remember that distinctly. Mr. Williams: If it is positive that that is in the record, I don’t need to call Reverend Maxwell. The Court: Do you recall? Mr. Dodson: I have heard it about ten times. I don’t know who put it in and I don’t care, but I will agree that that is what happened, if it has anything to do with this case. # * # # * 171a This cause came on to be heard before the Honorable William E. Miller, District Judge, without the intervention of a jury, on January 10, 1961, upon the entire record, and especially upon the motion for further relief and the motion for new trial and for appropriate relief heretofore filed by plaintiffs, upon the merits of the cause as to the issues heretofore reserved by the Court, upon the motion to inter vene in the cause filed by Porter Freeman, individually and in behalf of others, the testimony of witnesses heard in open court, and briefs and arguments of counsel, from all of which the Court finds and holds as follows: F indings of F act 1. With respect to the notices furnished by the defen dants to parents of school children affected by the deseg regation plan heretofore approved and the parents of all other children attending the schools in Davidson County, the Court finds that such notices are not confusing or mis leading and further finds that there has been no showing of any confusion or misleading as a result of the form of the notices. 2. The Court finds that to grant the request of the four individual plaintiffs, Cleophus Driver, Deborah Ruth Clark, Henry C. Maxwell, Jr. and Benjamin Grover Maxwell to be admitted to schools as exceptions to the plan approved by the Court would in effect destroy the plan in this locality. 3. The Court finds that teachers and sustaining personnel are assigned to the schools based upon their particular aptitude, qualifications, background and other factors, all F indings o f Fact, C onclusions o f Law and Judgm ent Filed: January 24, 1961 172a of which are considered by the Board, and that one of these factors has been race. 4. The difficulties and problems which will be encoun tered in making the transition from a segregated system to a nonsegregated system would be enhanced and complicated if the Court should at this time require the assignment of teachers and supporting personnel in the schools of the system on a basis different from that which has heretofore been followed. It would in all probability lead to a situa tion where a plan which would otherwise be successful and would operate smoothly and harmoniously would be im paired and rendered unworkable. Conclusion's of L aw 1. The Board of Education acted in good faith in pre paring the notices to parents under the desegregation plan and in mailing and distributing them. The School Board and the attorney representing the School Board and all of the defendants acted in good faith in undertaking to carry out the order of the Court and the Court holds that they did so in substantial effect. 2. The notices to parents heretofore furnished by de fendants to said parents under the desegregation plan were adequate. The Court finds no objection to them. 3. The notices to parents should be given to those who are affected by said plan of desegregation and not to any one else, but the form of the notice in the future should be submitted to opposing counsel in advance of its mailing, giving them sufficient time to file objections with the Court; Findings of Fact, Conclusions of Law and Judgment, January 24, 1961 173a and the Court will impose that requirement, believing that it is reasonable. 4. With respect to the request of the four individual plaintiffs, Cleophus Driver, Deborah Ruth Clark, Henry C. Maxwell, Jr., and Benjamin Grover Maxwell, to be ad mitted to schools as exceptions to said desegregation plan, the Court is of the opinion that to grant such exceptions would be in effect to invite the destruction of the very plan, which the Court has held is for the best interest of the school system of Davidson County. It is not a plan which is designed to deny the constitutional rights of anyone. It is a plan which is designed to effect an orderly, harmonious, and effective transition from a racially segregated system to a racially nonsegregated system of schools, taking into account the conditions existing in this particular locality. And the Court cannot see how these individual plaintiffs who brought this action are or would be entitled to any different treatment from any other children who attend the schools of Davidson County and are members of the class represented by the plaintiffs. 5. With respect to the issue reserved by the Court on the merits, as to whether or not there is any violation of the rights of the plaintiffs or of those represented by the plaintiffs where teachers are assigned in the County School System on the basis of race or where race is used as a factor in making assignments of teachers, the Court cannot go so far as to agree with the argument that this question has been finally settled by the decision in the Brown cases. But the Court does entertain the view that this question is a serious question under the Equal Protection Clause of the Fourteenth Amendment. Particularly is this true when Findings of Fact, Conclusions of Law and Judgment, January 24, 1961 174a the Court considers the fact that a plan has been approved for Davidson County which includes a very liberal transfer provision. When this provision, although it is on a volun tary basis, is coupled with a policy (and the Court is not now finding that this policy exists in Davidson County) which would assign teachers on the basis of race, then a serious question is presented to the Court as to whether there is not actually being thereby perpetuated the very condition which the Supreme Court said could not be per petuated, and that is a segregated system of public schools. The Court is required to view the matter in terms of the entire school system, and in terms of the quality of educa tion which the students are entitled to receive. 6. The Court finds that it is not necessary to determine the question relative to the assignment of school teachers and other personnel at this time for the reason that the Court does not believe (even if it should now hold and de clare that the plaintiffs do have the right to attend a school system where race is not one of the factors considered in the assignment of teachers) that an injunction should issue at this time. 7. In the opinion of the Court, it is the better and wiser course for the Court to follow, even if the foregoing rights were declared as contended for by the plaintiffs, to with hold the granting of an injunction until the plan has had an opportunity to operate for a substantial period of time. The school authorities should have the benefit of experi ence in dealing with the operation of integrated schools. For these reasons, in the exercise of the Court’s discretion, the Court would deny injunctive relief in this respect at this time. Findings of Fact, Conclusions of Law and Judgment, January 24, 1961 175a 8. This case will remain on the docket of the Court, and the Court will retain jurisdiction of the case during, the jjeriod of transition ; and the question with respect to the assignment of teachers, principals, and sustaining person nel can be renewed by the plaintiffs at a later, date, and will be taken up and considered at that time, after the plan has had an opportunity to be operated for a substantial period of time. 9. The motion to intervene filed by Porter Freeman in dividually and in behalf of others, is not well taken for the reasons, first, that it comes too late; second, that it is contrary to the plan which the Court has already ap proved; and third, that it contemplates putting into effect a plan which has specifically been held to be unconstitutional by this Court and by the Court of Appeals of the Circuit. For these reasons the motion to intervene is not well taken and will be denied. Judgment It is accordingly Ordered, A djudged and Decreed as follows: 1. That the relief prayed for in the motion for further relief filed by plaintiffs be and the same is denied, with the exception that the form of the notices to parents in the future are directed to be mailed by defendants to coun sel for plaintiffs in advance of mailing, so as to give them sufficient time to file with the Court objections to the form of said notices. 2. The aforesaid notices to parents will be given to those who are affected by said plan of desegregation heretofore approved by the Court and not to anyone else. Findings of Fact, Conclusions of Law and Judgment, January 24, 1961 176a 3. The motion for a new trial and for appropriate relief filed by plaintiffs is overruled and denied. 4. Injunctive relief with respect to the issues heretofore reserved by the Court concerning assignment of teachers, principals, and sustaining personnel in the schools on the basis of race is denied at this time; and the Court further reserves ruling with respect to the assignment of teachers and other school personnel, including the right of school children or their parents to raise such question. 5. This case will remain on the docket of the Court, and the Court will retain jurisdiction of the case during the period of transition from a racially segregated to a racially desegregated school system. The question with respect to assignment of teachers, principals, and sustaining personnel may be renewed by the plaintiffs at a later date. It may be taken up and considered at that time after the plan has had an opportunity to be put into operation for a substantial period of time. 6. The motion to intervene filed in this cause by Porter Freeman is overruled and denied. To the foregoing action of the Court in denying their motion for further relief and their motion for new trial and for appropriate relief, and in denying the relief prayed for in the complaint with respect to said issues heretofore reserved by the Court, the plaintiffs respectfully except. This the 24 day of January, 1961. Findings of Fact, Conclusions of Law and Judgment, January 24, 1961 W m. E. Miller United States District Judge 177a Notice of Appeal Filed: February 20, 1961 Notice is hereby given that the plaintiffs, Henry C. Max well, Jr., and Benjamin Grover Maxwell, by next friend, Reverend Henry C. Maxwell, Sr., and Mrs. Flora Max well; Deborah Ruth Clark, by next friend, Joe E. Clark and Mrs. Floy Clark; Jacqueline Davis, Shirley Davis, George Davis, Jr., Robert Davis, and Rita Davis, by next friend, Mrs. Robbie Davis; Robert Rickey Taylor, by next friend, Robert Taylor and Mrs. Stella Taylor; Reverend Henry C. Maxwell, Sr., Mrs. Flora Maxwell, Joe E. Clark, Mrs. Floy Clark, Mrs. Robbie Davis, Robert Taylor, and Mrs. Stella Taylor, hereby appeal to the Circuit Court of Appeals for the Sixth Circuit from the judgment entered in this action on the 23rd day of November, 1960, and from the judgment denying plaintiffs’ motion for new trial and appropriate relief, and denying other relief to plaintiffs, entered in this action on the 24th day of January, 1961. Z. A lexander L ooby and A von N. W illiams, Jr. 327 Charlotte Avenue Nashville 3, Tennessee T hurgood M arshall and J a c k Greenberg 10 Columbus Circle Suite 1790 New York 19, New York Attorneys for Plaintiff s-Appellants