Stell v. Savannah-Chatham County Board of Education Order on Plan of Desegregation

    IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF GEORGIA 

SAVANNAH DIVISION

RALPH STELL, BY N E X T  FRIEND, 
et al.,

Plaintiffs

vs.

S A V A N N A H -C H A T H A M  C O U N T Y  :
BOARD OF EDUCATION, et al., CIVIL ACTION NO. 1316

Defendants

and

LAW REN CE ROBERTS, et al.,

and

Intervenors

U N ITED  STATES OF AM ERICA,

Intervenor

OPINIONS, JUDGMENT AND DECREE OF THE HON. F. M. SCARLETT, JUDGE 
U. S. DISTRICT COURT S.D. GEORGIA, OF APRIL 1, 1966 AND AUGUST 23, 1965 
AND PLAN OF DESEGREGATION.

THE EFFECT OF THIS DECISION IS TO ELIMINATE "RACE AND COLOR” AND  
ESTABLISH "EDUCATIONAL QUALIFICATIONS” AS SORTING CRITERIA IN TFIE 
INTEGRATION OF PUBLIC SCHOOLS. AS A RESULT ABOUT iy2%  OF THE NEGRO 
SCHOOL POPULATION IS ELEGIBLE TO BE ASSIGNED FROM THEIR OWN  
NEIGHBORHOOD SCHOOLS.



Paragraph 14 of the Plan of Desegregation promulgated by 
Judge Scarlett provides that, T,no student shall have the right 
to be assigned or transferred /out of his neighborhood/ to any 
school or class the mean I.Q. of which exceeds the I.Q. of the 
student” .

According to the undisputed evidence, paragraph 14 of the 
Desegregation Plan promulgated by Judge Scarlett will limit the 
assignment or transfer of Negro children in Savannah to schools 
out of their own neighborhoods to about 2.7% of the Negro school 
population, solely because of their low I.Q. or their low 
"educational qualifications" (to use the words of the Supreme 
Court in Brown), and not on account of race or color.

The undisputed evidence proved also without dispute or 
explanation that Negro applicants for teaching positions in 
Savannah are required to have a minimum score of only 400 on 
the National teachers examination in order to be employed, 
while White applicants must score a minimum of 500. It was 
also proved without dispute or explanation that "the mean 
yearly salary of Negro teachers markedly exceeded that of 
White teachers". Such discrimination against White teachers 
and intelligent children was stricken down by this decision.

The decision of August 23, 1965, upon which that of April 
1, 1966, was based, and Desegregation Plan are also bound 
herewith.

The foregoing summary is not a part of the official decision 
by Judge Scarlett,



IH THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA

RALPH STELL, 
«t *1.,

SAVANNAH DIVISION

BT NEXT FRIEND, 

Plaintiffs

U. S. DISTRICT COURT 
FILED IN OFFICE 

_ _ _ _ _ _ _ _ _ _M„
APR 1 1966 — i9___

A/ -
Deputy Clerk

v s.

SAVANNAH-CHATHAM COUNTY BOARD 
OF EDUCATION, et al.,

Defendants
and

LAWRENCE ROBERTS, et al.,
Interveners

and
UNITED STATES OF AMERICA,

Interveners

CIVIL ACTION NO. 1316

ORDER ON PLAN OF DESEGREGATION 

FINDINGS OF FACT

(1) This action was commenced in January, 1962



(2) The plaintiffe are Negro school children attending the 

Savannah-Chath&m County schools suing by next friend on behalf 
of themselves and others®

(3) The defendants are the Board of Education for the City 
of Savannah and County of Chatham, its members and officers, and 
the Superintendent of Schools of Chatham County.

(4) The defendant interveners, Roberts, et al., are White 
school children suing by their parents and next friend in their 

own behalf and on behalf of other White children similarly 
situated.

(5) This case wms tried on its merits in June, 1963, and 
a decision rendered ©n June 28, 1963. (See 220 F.Supp. 667.)

(6) On August 23? 1965, this Court, after hearing, entered 

an order on a plan of desegregation submitted by the defendant 
Board of Education which, for the reasons stated in the opinion 
of the Court of that date, was disapproved and disallowed.

(Raee Relations Law Reporter. Volume 10, Number 3, Fall, 1965, 
page 1044). The parties wer® then ordered to prepare and submit 
a plan of desegregation consistent with such order,

(7) On November 3, 1965, another hearing was held at which
a revised plan ©f desegregation approved by counsel for defendant 
Board of Education and counsel for the White interveners was 
submitted to the Court. At said time counsel for plaintiffs 
requested additional time to study the proposed plan and to file 
objections thereto if desired. Said request was granted.

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(8) Counsel for the plaintiffs thereafter filed no 

objection to the plan submitted on November 3rd. However, on 
November 12, 1965, Nicholas deB. Katzenbach, Attorney General 
of the United States, moved to intervene in the case. Said 
intervention was allowed without objection. The motion to 

intervene was accompanied by objections to the plan for deseg­
regation presented to the Court on November 3rd.

(9) After said objections became a part of the record, 
the plan submitted on November 3rd was withdrawn, revised and 

resubmitted to the Court. No formal objection to the revised 
plan has been filed. The objections to the plan of November 

3rd filed by the Attorney General in behalf of the Justice 
Department were:

1. The plan fails t© eliminate the effect 

©f past racial assignments.
2. The plan fails to provide for the 

assignment of students entering the first, 
seventh, and tenth grades without regard to 

race.
3. The plan fails to provide for the non- 

racial assignment of students who newly move
to Chatham County or who move from one district 

to another within the system.
4. The plan fails to provide for the 

desegregation ©f all 12 grades hy September 

of 1966.

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5. The plan fails to provide for the 
desegregation and non-discriminatory hiring, 
placing and retention of faculties and 
administrative personnel.

6. The plan fails to provide for 
transportation, facilities, and opportunity 
for activities, without regard to race.

7. The plan fails to provide for 
notice to individual parents, in simple 
and clear language, of the rights and pro­
cedures available tinder the plan.

(10) Apparently in response to objections 2, 3 and 4* the 
revised plan completely eliminates race and color as determining 
factors in the plan of desegregation and paragraph 12 requires 
the desegregation of all school grades by September, 1966.

(11) The revised plan provided for the non-discriminatory 
paying and retention of faculties but made no provision for 
non-discriminatory hiring, which will be dealt with hereafter.

(12) In order to meet the seventh objection by the Justice 
Department, the proposed plan was revised so as to require 
publication of it in a newspaper of general circulation in 
Chatham County, Georgia, within thirty days and thereafter at 
least once each year.

(13) The Justice Department thereafter gave notice of the 
taking of depositions of ten witnesses at the Office of the

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Board of Education in Savannah on December 22, 1965, for use at 
the hearing before the Court in Brunswick on December 27th (later 
continued by consent of parties to December 29th). At the 
hearing on December 29th in Brunswick, the following stipulation 
was entered into in open court:

nAll parties agree that there shall be 
submitted to Honorable F. M. Scarlett, United 
States District Judge, the following questions 
for determination in the above stated case:

1. The admissibility, particularly with 
reference to Rule 26, of the depositions taken 
in Savannah, Georgia on December 22, 1965, upon 
notice by the Government and the Exhibits 
referred to therein and if such depositions 
are admitted then the questions as to relevancy 
and materiality thereof;

2. All Motions pending in the above stated 
case, including the motion filed by Plaintiff
to Dismiss the Defendants Intervenor as parties, 
if such motion is still pending;

3. The approval of a plan for desegregation.
It is further agreed that briefs shall be

filed and served upon opposing Counsel not later 
than January 20, 1966 and any reply briefs shall 
be filed and served not later than January 31,
1966. "

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(14) Said stipulation was not made a formal order of Court 
at that time but was subsequently approved and sanctioned by the 

Court in order that the record might be brought to a close in

an orderly manner within time limits fixed by the Court* Within 

the time allowed under the order of Court the Justice Department 

filed with the Court a proposed plan for desegregation. The 

Board of Education submitted the same plan as that disallowed 
by the Court in its order of August 23rd. lo plan of desegre­

gation has been submitted by the plaintiffs at anytime since 
the pendency of this litigation.

(15) In addition to the testimony by depositions, Dr. Thord 
M. Marshal, Superintendent of the Savannah-Chatham County Schools, 
testified in person at the hearing in Brunswick. He testified
in effect that under the policy followed in Savannah White 
applicants for teaching positions in Savannah were required to 
have a minimum score of 500 on the National Teachers Examination 
before they could be employed, but that a minimum score of only 
400 is required of Negro applicants. No attempt was made to 

explain the discrimination in favor of Negroes over Whites in 
the employment practices of the Board. This undisputed evidence 

of discrimination against White applicants for teaching positions 
in Savannah has peculiar significance in view of the undisputed 
facts developed in this case prior to the Court’s ruling of 
August 23, 1965, to the effect that after employment, nthe mean 
yearly salary of Negro teachers markedly exceeded that of the

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whit® teachers”, and that "Negro principals assigned relatively 

lower competence ratings to the Negro teachers under their 

supervision than the White principals assigned to the White 
teachers under their supervision".

(16) The defendant Board of Education has given no indication 
to the Court that it intends to cease discriminating against 

White applicants and teachers in favor of Negro applicants and 
teachers. Since its entry into this case the United States 
Government has shown not the slightest concern over such 
discrimination.

CONCLUSIONS OF LAW

The above stipulation delineates the questions with which 
the Court is now concerned.

(1) Since the Justice Department of the United States 
Government did not intervene in this case until November 12, 

1965* it has no standing to question any actions or rulings in 
the case prior to said date. It is the rule, applicable alike 
to all parties, that:

"One who intervenes in a suit in equity 
thereby becomes a party to the suit and 

is bound by all prior orders and adjudi­
cations of fact and law as though he had 
been a party from commencement of suit."
Galbreath v. Metropolitan Trust Co. of

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California, et al.. 134 F.2d 569, and
cases cited.

(2) In the decision of August 23, 1965, disapproving and 
disallowing the plan of desegregation submitted by the defendant 
Board of Education, it was pointed out that there was "no 
indication that integration is to be accomplished in any other 
manner than congregating children because of race and color."
It was also pointed out that all of the evidence adduced in 
the case at the trial on the merits was undisputed to the effect 
that school children cannot be successfully educated under 
conditions of massive integration without respect to age, 
mental qualifications, learning capacity, educability and 
intelligence in general. This Court then construed the law 
as interpreted by the higher courts to mean that "separation 
may not be accomplished by using race and color as sorting 
criteria" but that age, mental qualifications, capacity to 
learn, educability and intelligence in general are valid 
sorting criteria, and that under the evidence the school 
children of Savannah may and should be so classified in order 
to provide the best possible education for all school children 
with the largest possible benefit and the least possible 
detriment to all. Since the order of August 23rd is binding 
upon all parties in this case, and this order merely supplements 
it, a copy is attached hereto for convenience.

(3) The first numbered paragraph of the above-quoted 
stipulation raises a question as to the admissibility of the

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depositions taken by the United States Government in Savannah on 
December 22, 1965, for use at the hearing in Brunswick less than 
100 miles away. The objection was as to the admissibility, 
particularly with reference to Rule 26 of the Rules of Civil 
Procedure. If admissible under that Rule, then objections were 
as to the relevancy and materiality thereof.

Under Rule 26(d)(3):
"The deposition of a witness, whether or 

not a party, may be used by any party for 
any purpose if the court finds: - - - 
2, that the witness is at a greater dis­
tance than 100 miles from the place of 
trial or hearing - -- ".

The Justice Department insists that such depositions are 
admissible under the specific language of Rule 26(d)(2) which 
provides that:

"The deposition of a party or of any one 
who at the time of taking the deposition 
was an officer, director, or managing agent 
of a public or private corporation - - - 
which is a party may be used by an adverse 
party for any purpose.”

As a basis for its contention the Justice Department claims 
that each of the witnesses whose depositions were taken in Savannah 
was a "managing agent” within the meaning of said Rule. If each 
of such witnesses was a "managing agent", Rule 26(d)(2) is without 
meaning and is useless, if not harmful.

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The Justice Department relied on the maritime case of Warren 
v. United States, 1? F.R.D. 3^9 (S.B. N.I. 1955), to sustain its 

position. The Warren case involved a naval officer who was held 
to be a "managing agent" of the United States. A number of 
decisions of federal courts hold that the master of a ship is 

a "managing agent" within the meaning of Rule 26 and may be 

examined as such. See Aston v. American Export Lines. Inc.. DC, 

11 FRD 442; Curry v. States Marine Corporation of Delaware. DC,
16 FRD 376; Fay v. United States. DC, 22 FRD 2S.

The specific question was answered recently in the case of 
Southern Pacific Company v. Duncan. 230 Or, 179, 366 P2d 733,

96 ALR2d 617, where the Oregon Supreme Court, quoting Judge 
Weinfield of the Southern District of Hew Tork in Krauss y.
Erie R. Company, 16 FRD 126, 127, said:

"A managing agent, as distinguished from 
one who is merely ’an employee* is a person 
invested by the corporation with general 

powers to exercise his judgment and discretion 
in dealing with corporate matters; he does not 
act ’in an inferior capacity’ under close 
supervision or direction of ’superior 
authority’."

The Court specifically answered the contention similar 
to that of the Justice Department in this ease to the effect 

that since a ship master is a "managing agent", an assistant to 

a school master should likewise be considered a "managing agent", 
saying:

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nNo one can quarrel with this conclusion 

of the federal courts /that a ship master 

is a nmanaging agent// for* it is common 
knowledge that a ship is a wanderer to 

many ports of call and thus more often 
than not is far from the direct control 
and supervision of its owner. Under these 

circumstances the master must be fully 
authorized agent of the owner to meet 
the unforeseen demands of a voyage.
United States v. The Malek Adhel, 2 How.
210, 43 US 210, 11 L.Ed 239; Piedmont &
George’s Creek Coal Go. v. Seaboard 

Fisheries Go., 254 US 1, 41 S.Ct. 1,

65 L.Ed 97."
The Oregon court thereupon rejected the idea that an employee 

of a railroad company in charge of a train is a "managing agent" 
and declared that no analogy can be drawn between such cases and 
maritime cases.

For one to be a "managing agent" within the meaning of Rule 

26, the interest of the corporation should be so close to his own 

and to his heart that he could be depended upon in all events to 
carry out his employer’s directions.

To the effect that a mere employee is not a "managing agent" 
within the meaning of the Rule that depositions may be used in a

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case when the witness is less distant than 100 miles from the 

place of hearing, see, for further authority, ALR2d 632, 634, 

637; 23 AmJur2d, Section 241, page 627.
The Court knows of no exceptions to Rule 26 in favor of 

the Government. This ruling as to the inadmissibility of the 
depositions taken in Savannah makes it unnecessary to rule on 

the materiality or relevancy of such testimony.
(4) Dr. Thord M. Marshal, Superintendent of Schools of 

Savannah-Chatham County, testified in person at Brunswick at 

the hearing. No question has arisen as to the inadmissibility 

of the testimony of Dr. Marshal. He was a "managing agent" for 

the School Board and his testimony would have been admissible 
if taken by deposition. While on the witness stand in Brunswick 

he was asked by counsel for the intervening White children if 

he heard the testimony of Donald M. Gray which had been taken 
by deposition (now ruled inadmissible) earlier in the month.
Dr. Marshal testified that he did hear that testimony and that 
he heard Donald M. Gray, Director of Personnel, testify "that 
in the employment of teachers a minimum grade of 400 is set for 
Negro teachers, 400 on National Teachers Examination, and a 
minimum grade for white teachers is set at 500". When asked 
how long that policy had been in effect, Dr. Marshal said:

"I don’t know how long that has been 

going on."

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The fact that a White applicant must make 500 on a scale 
of 1,000 in order to be employed in Savannah while a Negro 
applicant is only required to score 400 on a scale of 1,000 

was thus established without dispute, without explanation.

It is contended by the Justice Department that if the deposition 
of Dr. Gray is excluded no evidence remains in the record as to 
discriminatory hiring by the defendants. We do not agree. It 

is rather strange that the Justice Department of the United 
States Government should exert its powers in an effort to 

conceal or suppress facts as to discrimination against White 
people on account of their race and color.

(5) It has been suggested that since my decision of 
August 23rd several decisions have been rendered by the Fifth 
Circuit Court of Appeals and by the Supreme Court that should 
result in a revision of that decision. The Court is unable 
to agree with that contention. Among the cases lately decided 
by the Court of Appeals for the Fifth Circuit is Singleton vs. 
Jackson Municipal Separate School District, et al.. decided on 
January 26, 1966. That case discusses several previous cases, 
including Stell vs. Savannah-Chatham County Board of Education,
333 F .2d 55, and Jackson Municipal Separate School District. 
et al. vs. Evers, then pending before the Court of Appeals and 
decided by the Court on the same day. Neither in those cases 
or in any other case called to the attention of the Court has 
the Fifth Circuit Court of Appeals, or any other court, questioned

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the findings of fact by this Court in Stell or the findings of 
fact by Judge Mize in Evers.

In the Evers case (No. 21&51, decided January 26, 1966), the 
Court, citing and following Cahn, A Dangerous Myth in the School 

Segregation Cases, 30 N.Y.U.L.Rev. 150 (1955), held that the 
contention that Brown was decided for sociological reasons 

untested in a trial was a bewitching and bewildering "myth” and 

that Brown, not having been decided on facts, may not be over­
turned on a contrary factual showing. It should appear quite 
plainly to anyone with common intelligence that nothing said by 
this Court on August 23rd and nothing said by this Court now in 
any way tends to overturn the Brown decision. What this Court 
decided on August 23rd and what this Court reiterates now is 
that, consistently with and in accordance with Brown and the 

decision of the Court of Appeals in this case (333 F.2d 55, 61, 
62), school children may be assigned to particular schools ,!on 
a basis of intelligence, achievement or other aptitudes upon a 
uniformly administered program” provided race is not a factor 
in making the assignment.

In Brown it was clearly pointed out that only school 
children of ”similar age” and the "same educational qualifi­
cations" are entitled to be grouped together in schools under 
the equal protection clause of the 14th Amendment. How may 
the age and mental qualifications of a child be determined?
How may the intelligence, achievement or other aptitudes of

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a child be determined? Is not evidence necessary in order to make 
these determinations? Certainly no such determinations can be 
made fairly and honestly without considering evidence.

The burden of Mr. Cahn's thesis is that he and everyone else 
knew about the cruelty of segregation and the fact that the Court 
considered evidence in Brown was merely evidence of the merciful 
heart of the Supreme Court Justices. He would have courts draw 
upon their imagination for their facts.

Apparently Mr. Cahn was of the opinion that segregation 
whether by reason of race or color or by reason of intelligence 
and mental qualifications is "cruelty” as far as the least 
intelligent are concerned. See Vol. 30, page 159 (January 1955). 
Mr. Cahn pointed out that it is not necessary "to prove a fact 
that most of mankind already acknowledges, - - -" and that an 
attempt to prove such a fact is "a rather bizarre spectacle".
Mr. Cahn described the basic approach of social psychologists 
(such as those cited in Brown) to the question of segregation as 
"liberal and egalitarian" (p. 16?). Quite appropriately, he 
cautions: (p. 166)

"It is predictable that lawyers and scientists 
retained by adversary parties will endeavor 
more aggressively to puncture any vulnerable 
or extravagant claims. Judges may learn to 
notice where objective science ends and advocacy 
begins. At present, it is still possible for

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the social psychologist to ’hoodwink a judge \  
who is not over wise’ without intending to do 

so; but successes of this kind are too costly 

for science to desire them.”
In the New York University Law Review for January 1956, Mr. 

Cahn seems to make apologies for much that he said in 1955. ho© 
Volume 31, p. 182, et.seq. Commenting upon the use of social 

psychology in law cases (p. 194), he leetured courts and cautioned 
against the use of the kind of psychological testimony admitted 

in the eases underlying Brown. He concluded his later article 

saying:
"But there is no substitute for the 
vigilant exercise of critical intelli­
gence. Where public justice is concerned, 
an educator has no more right to play the 
dupe than the deceiver.”

If the words of Professor Cahn are to guide us, maybe we 
should swallow all of them— but slowly to see how they taste.
To the e f f e c t  that brown was decided on facta in the record-— not 

on the imaga 1 nation of judges, see Taylor vs, Board af.,Educatign 
of New Koehelle, 191 P .Supp. 181. (b.D. N.Y. 1961) ; Pahr and 

Ojemarm, "The Use of Social and Behavioral Science Knowledge in 

Law", 48 Iowa L.it. 59 (1962).
We adopt the l a s t  quoted words of Professor Cahn: "there is 

no s u b s t i t u t e  for the vigilant exercise of critical intelligence”. 
Where the j u s t i c e  and particularly the welfare and education of

16-



children is concerned, a judge has no more right to play the dupe 
that the deceiver.

As pointed out in my decision of August 23rd, a published 
study entitled "Project Talent” (1963) was tendered and admitted 
into evidence in this case. Since that Study investigated on 
a national scale the same questions that were investigated by 
the evidence in this case and in Evers and since that Study was 
conducted in behalf of the Office of Education, U. S. Department 
of Health, Education and Welfare, and since this Court has 
declared that studies and findings made by the Office of Education 
are entitled to great weight (see Singleton vs. Jackson Municipal 
Separate School District, No. 22527, decided January 26, 1966, 
pp. 5 and 7), we feel justified in referring to it again. The 
Study involved 773 public senior high schools in every section 
of the United States involving some 500,000 students. That 
Study found the facts to be almost exactly as found by this 
Court in the trial on the merits and as found by Judge Mize in 
Evers. It is, therefore, appropriate to refer to such Study in 
more detail than was done in my decision of August 23, 1965.

"Project Talent” relates to the "educational achievement 
of high school pupils in relation to percentage of Negroes in 
school enrollment.” It was conducted by the Project Talent 
Office of the University of Pittsburgh under the auspices of the 
U. S. Department of Health, Education and Welfare. George R. 
Burket, who was in charge of the Study, is a nationally

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renowned authority in his field. He did not slant or color the 

study so as to conform to any preconceived ideas or any national 
policy. (A copy of it is now on file as a part of the record in 
this case and is subject to inspection in the Office of the Clerk 

of this Court.)
The purpose of one part of the survey was to display 

"differences and similarities among schools having varying 

proportions of Negro enrollment.”
The tests administered in the schools can be classified 

as both aptitude and achievement tests. All of these tests are 
highly related to school grades and hence are predictive of 

school learning. Scores were not published for individual 

White and Negro students. Scores were released, instead, for 

classes having proportions of Negroes running from zero to 100 

per cent. Intermediate steps are 1-9 per cent Negro, 10-19 
per cent Negro, 20-29 per cent Negro, and 30-99 per cent Negro.

Thus, the zero classes are all-White. The 100 per cent 

classes are all-Negro.
Tables incorporated in Project Talent are too voluminous 

to be fully reproduced but essential trends can be summarized 

as follows:
1) There is a strong tendency for average test scores to 

decrease as the per cent of Negroes increases. The fall-off holds 
for schools in the East, North and South and occurs in both 
non-verbal (that is, abstract-reasoning) tests and in verbal 
(that is, reading comprehension) tests. For instance, in the

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12th Grade classes of Southeastern States, results from 19 tests 
show drops of from 20 per cent to SO per cent in average score 
from zero per cent to 100 per cent Negro enrollment. That is, 
the averages were 20 per cent to SO per cent below the averages 
earned by all-White 12th Grade classes. The percentage decrease 
was in ratio to Negroes enrolled, the more Negroes, the lower the 
score.

In the mid-East, for the same tests, the drop is only 
slightly less, from 16 per cent to 60 per cent in the averages.

2) Little difference in test scores was found between schools 
in low-quality, medium-quality and high-quality housing areas.
In all-Negro schools, test means were actually higher in low- 
quality housing than in medium and high-quality housing.

3) The larger the percent of Negroes in school, the higher
drop-out rate. Drop-out rates were lower in the Southeast than 
in Eastern and Northern areas. (Note: The Southeast, the area
with the lowest percentage of drop-outs, it is worth noting, 
historically has maintained segregated public-school systems.)

4) Absenteeism increased as the percentage of Negroes 
increased; also per-pupil expenditure. It costs more to operate 
an integrated school than a comparable segregated school.

To further summarize the "Project Talent" findings: Schools
integrated en masse in all areas of the United States evidence,
(a) lower academic performance, (b) more drop-outs, (c) greater 
incidents of absenteeism, (d) higher costs, (e) fewer graduates 
going to college, and (f) behavioral delinquency increased as

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the percentage of Negroes rises.
Without exception these unfavorable and unfortunate conse­

quences occur in direct proportion to the number of Negroes 
enrolled. It is apparent that this Study was originally 
conceived and projected as "Project Talent" in the expectation 
that it would vindicate the assumption of injury by segregation 
and repudiate the assumption of injury by integration, as was 
shown by proof in this case and in Evers. The honest, forthright 
and objective findings disclosed by this Study involving a half 
million high school students in nearly S00 high schools through­
out the Nation are apparently the very reverse of that expected. 
Why such a study should not receive wide publicity and renown 
is mysterious. The Government that financed the Study has 
apparently concealed it. It is now said to be "out of print".
An effective way to deal with stubborn or embarrassing facts is 
to replace them with imaginary assumptions. To the equalitarian 
all school children, all races and all men are equal and nothing 
to the contrary may be considered. Nevertheless, the equalitarian 
readily insists that the equalitarian holds first place among 
equals while all others are on a lower level.

That which was predicted or found to be true in the trial 
of this case and in the trial of the Evers case and that which 
was found to be true by the United States Department of Health, 
Education and Welfare in "Project Talent" is the same thing that 
was found to be true in Washington, D.C. as a result of massive

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integration. That fact was pointed out by a member of the Congress 
in EverS. (232 F.Supp. 241, 245)

In an effort to soften the devastating effects of massive 
integration, school authorities in Washington, D.C. and other 
cities have adopted various devices designed to enable brighter 
children to be classed with brighter children so that their 
progress rate may not be seriously impaired. In Washington and 
some other cities the "track system" of grouping children in 
accordance with ability is now under violent attack from civil- 
rights groups and the most sadistic equalitarians. The lead 
editorial of the Wall Street Journal of December 27, 1965, tells 
that story so well that the Court adopts it and makes it a part 
of this opinion. It is as follows:

"A PREMIUM ON DULLNESS
In the schools of Washington, D.C., and some 

other cities, the track system of grouping stu­
dents according to ability is coming under 
increasing attack from civil-rights groups.
The controversy strikes us as one more illus­
tration of how snarled the whole theory of 
equality can get in practice.

A track system usually embraces basic, 
regular and honors classes or their equiv­
alents, so that the better minds can advance 
faster and confront a greater educational 
challenge. In the nation’s capital, where

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the school population is predominantly Negro, 
the rights leaders charge that the set-up 
cloaks anti-Negro discrimination in a garb 
of academic respectability. Related ob­
jections are that it is undemocratic and 
develops snobbery.

Now there may well be grounds for justified 
criticism of the track system as it has evolved 
in Washington and elsewhere, but the argument 
from discrimination is a remarkably poor one.
What the critics are saying, whether they 
realize it or not, is that Negro children as 
a group are slow learners. More broadly, 
that all students should be taught on the 
basis of the lowest common denominator.

The first thing to note about that 
proposition is that it is anything but an 
exercise in equality. By coincidence, the 
current Columbia Teachers College Record 
contains some useful thoughts on the subject 
in the form of an article by Professor Paul 
Nash of Boston University; it is concerned 
not with the merits or demerits of any 
particular track system but with the general 
problem of equality in education.

- 22 -



TIf a slow child,’ writes Mr. Nash, ’is 
given a program that fully stretches and 

challenges him intellectually, and a bright 
child is given the same program, which bores 

and stupefies him, they do not enjoy equal 
opportunities.’ In fact, no way of producing 
equality is known if that term is taken to 

imply that all children should somehow come 

out of the educational process equal.

What, then, are attainable goals of 

equality? Certainly equal access to the 
schools to the extent feasible, and fair 
treatment within them. Beyond that, 
paradoxically enough, inequalities can be 
reduced precisely by ’undemocratic’ methods 
like grouping according to ability or 
variable standards.

As Mr. Nash explains, ’we may demand 
that an able student achieve a higher level 
of work in order to pass than a less able 
student. The passing grade really signifies 
’performance in relation to ability’, and 
the pass of the able student represents a 
higher measure of achievement than the pass 
of the less able student. We might defend



this by arguing that the same absolute standard 

for all would mean that the weak students would 

not enjoy equal opportunities because they would 

be constantly penalized by failure•’

For our part, we doubt that furnishing 

intellectual challenges to capable pupils 
actually is undemocratic except in an unrealistic 

sense, or that it makes many snobs; those it 

does have that effect on would probably suffer 
the same affliction anyway. Far more important 
to recognize, it seems to us, is that several 
other values besides equality are involved in 
education and that sometimes they will be in 

at least apparent conflict.
One is the principle, which we believe valid, 

that the child should be permitted to absorb as 

much learning as he is able to, and this 
principle need not run counter to any reasonable 
definition of equality. Another consideration 

is the value of the gifted, or at any rate 
better than average, student to the society in 

the future.
Like it or not, it is evident that the future 

is going to require a lot of highly educated 
people, including many with specialized skills 

or talents. It will be well if the schools can

- 24-



give them a broad cultural background to 
buttress their narrower specializations, but 

in any case it is no service to the nation 
to discriminate against the children with the 
best brains.

Finally, a value that can be viewed quite 
apart from pragmatic concerns is the quality 
of education itself. Generally speaking we 
think the quality has been improving in the 

wake of growing disenchantment with the per­
missive theories of progressive education 
and a return to emphasis on basic subjects 
and high academic standards. The track 

experiments are one important manifestation 
of that search for excellence.

Those who put an arbitrary and illusory 
equality ahead of excellence are, we believe, 
trapped in an intellectual confusion. By 
putting a premium on dullness they could, if 
their theories prevailed, set back the prom­
ising recent course of education.”

That which has occurred in Washington, D.C. has been found 
to be true in cities throughout the United States. The facts 
are reported in common news media with greater frequency than 
ever before. Writing in the Mew York Times Magazine of May 2,

- 25-



1965, Martin Mayer, a student of public schools and of American 

education, revealed and commented upon the same kind of facts 
evident in Washington, D.C. and that appear in the record of 

this case. While writing about New York, he accurately portrayed 
that which may be expected in Savannah if school children are 

integrated en masse on a common plane and are not classified in 

accordance with their intelligence and educability. In part he 
said:

nPublic confidence in the (New York City) 

school system is fearfully low and dropping:
White children are leaving the city public 
schools at a rate of 40,000 a year." (The 

Allen report, Mr. Mayer says, predicts a rate 
of 60,000 annually).

” . . .  Normal parents of any color need 
not be racist to refuse to send their children 
into classes where the tone is set by the low 

expectations the schools have derived from 
their experiences with minority ’groups’ . . . ”
’’Indeed, it is difficult to fathom the thought 
process of people who insist that there will 

be gains in the racial attitudes of Whites or 
(gains in) the self-image of Negroes from daily 
experiences which visibly proclaim that dark- 

skinned children are ’dumber’ than pale-skinned 
children.”

- 26-



"Not long ago, many of us felt that a large 

share of the Negro failure in the schools was 

itself the product of segregation; but almost 
nobody whose opinion is worth considering 

believes it today." (Emphasis supplied by 
cour^)

"A year ago, for example, with a burst of 

publicity, New York announced the abandonment 
of the group IQ test, on the grounds that it 
was culture-biased and discriminated against 
Negroes. But the reading test that was sub­
stituted slots children almost exactly where 

they were in the abandoned IQ test— and what 
difference there is works against the Negroes"

. . . "The real result of the acclaimed 
abandonment of the IQ test, then, is that 

Negro children in 1964-65 are more likely to 
be in the bottom classes of 'integrated schools’ 

than they were in 1963-64."
"The tradition of success is almost gone— in 

increasing numbers, teachers and principals live 
with the expectation of failure and weave a 
safety net of excuses."

" . . .  The decline will be fairly precipitous 
but no one will be able to mark the place where

- 27-



the system fell over the cliff and became a 

custodial institution for children who have 
no future.”

The massive intelligence test data collected in the Savannah- 
Chatham County Schools is easily accessable. The Supreme Court 
and the Court of Appeals left the defendants free in this case to 
use their intelligence in applying or making use of such data.

It is too late for the defendants "to weave a safety net of 

excuses" for further impairing the educational opportunities of 
little children. It is too late "to weave a safety net of 

excuses" for discrimination against white applicants for teaching 
positions and against white teachers in their scale of pay.

No evidence has been presented to this Court to justify any 
conclusion or assumption that children with average I.Q.’s of 
SO can be equalized with children with average I.Q.'s of 100.

All of the evidence points to injury to the brighter children 
and psychological shock to the slower children. Those who would 
sacrifice or render useless the talents of a nation in a vain 
attempt to accomplish the impossible should be restrained by 
government and not encouraged.

ORDER AND DECREE

(1) It is ordered that the defendants, their agents, officers, 
successors in office, and all persons in active concert with them, 
be and each such person is hereby enjoined from maintaining in the 
operation of the Savannah-Chatham County School System any



distinctions based upon race or color, but they are enjoined and 
required to maintain and enforce distinctions based upon age, 
mental qualifications, intelligence,achievement and other apti­
tudes upon a uniformly administered program.

(2) It is specifically ordered that colored and white school 
teachers shall hereafter be employed in accordance with identical 
standards and it is specifically ordered that the employment of 
Negro school teachers with a minimum grade of 400 on the National 
Teachers Examination while requiring White applicants to have a 
minimum grade of 500 on the National Teachers Examination shall 
be immediately terminated. It is further ordered that the 
defendants shall, on or before May 15, 1966, abolish every rule 
or policy under which colored applicants for school teacher 
positions or colored school teachers are accorded preference over 
white applicants or teachers as a result of race and color.

(3) Pursuant to the decision of this Court on August 23,
1965, discrimination in favor of Negro teachers and against 
White teachers with greater competence, as to pay, shall be 
terminated on or before the beginning cf the school year 1966-67. 
The defendants shall, on or before May 15, 1966, file with this 
Court a detailed plan for the non-discriminatory hiring and 
payment of teachers without regard to race and color and in 
whieh intelligence, experience, competence and merit shall be 
controlling factors in the future employment and retention of 
teachers. Said plan shall also recite steps taken and to be 
taken to correct the injustices resulting from past discrimination.

- 29-



(4) All questions relating to the integration of teaching 
staffs are deferred for a further hearing and order after the
desegregation order set forth herein is put into effect and 
discrimination in the employment and pay of teachers shall have 
been terminated.

Except as herein modified, the revised plan of desegregation 
submitted by the intervening White children and approved by 
counsel for the defendant School Board is hereby allowed and 
approved and it is made a part hereof.

IT IS FURTHER ORDERED that a copy of this decree with the 
revised plan of desegregation shall be served upon each member 
of the Savannah-Chatham County School Board, upon the Superin­
tendent of Schools and upon counsel for all of the parties, and 
defendants shall cause a complete copy to be published in a 
newspaper in Savannah.

The Court retains jurisdiction of this cause to amend or 
modify this decree and to permit amendments or modifications 
of the desegregation plan adopted as a part of this decree and 
to issue such further orders as may be necessary or appropriate. 
The costs incurred in this proceeding to date are not taxed 
against any party.

This _J___ day of

UNITED STATES DlfiT&ICt JUDGE

- 30 -



IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION U. S. DISTRICT COURT
FILED IN OFFICE

RALPH STELL, BT NEXT FRIEND, et al.,
Plaintiffs

vs.
SAVANNAH-CHATHAM COUNTY BOARD OF EDUCATION, et al.,

Defendants
and

‘.WHENCE ROBERTS, et al.,
Interveners

CIVIL ACTION NO. 1316

ORDER ON PLAN OF DESEGREGATION 
SUBMITTED BY DEFENDANTS____

QUESTIONS FOR DECISION

The above case was tried on its merits and a decision rendered 
on June 28, 1963. 220 F.Supp. 667. The decision was appealed to
che Fifth Circuit Court of Appeals and the following order entered: 

"The judgment is reversed and the case 
remanded for further proceedings not in­
consistent herewith" (333 F.2d 55, 66).



In its decision the Court of Appeals ordered that:
"any plan hereafter promulgated must be 
carefully inquired into by the District 
Court with close attention being paid to 
the burden of proof that is on the school 
board to justify delay." (333 F.2d 55, 64).

As noted by the Court, the defendant School Board had already 
instituted & plan of integration and no question of delay has arisen*

The issues before the Court on the trial and before the Court 
on appeal are set out in the cited decisions. The uncontrovertod 
evidence adduced on the trial of the case is in the Transcript of 
Hearing and is set forth in most essentials in the decision by 
this Court. In its decision the Court of Appeals pointed out that: 

"the only question left - - - concerns the 
manner in which it /Integration/ is to be 
accomplished, and the time allowed for that 
purpose." (333 F.2d 55» 62)

The decision by this Court was construed by the Court of 
Appeals as one requiring continued segregation by race and color 
in the Savannah schools in violation of the equal protection 
clause of the 14th Amendment, as construed by the Supreme Court 
in Brown vs. Board of Education. 347 U.S. 463. The Court held 
further:

"In this connection, it goes without 
saying that there is no constitutional 
prohibition against an assignment of

- 2 -



individual students to particular schools 
on a basis of intelligence, achievement 
or other aptitudes upon a uniformly ad­
ministered program but race must not be 
a factor in making the assignments. How­
ever, this is a question for educators and 
not courts." (333 F.2d 55, 61, 62)

Thus, the Court of Appeals necessarily left open for this Court 
to determine "the manner in which it /Integration/ is to be 
accomplished". If it may be accomplished by the "assignment of 
individual students to particular schools on the basis of 
intelligence, achievement or other aptitudes upon a uniformly 
administered program" without race being a factor in the making
of the assignments, such assignments may be made and, under the

willevidence in this case, should be made. Such- assignments/consist 
with the Constitution, the Brown case and the decision of the Court 
of Appeals in this case.

The Court takes judicial notice of the fact that in all 
wall regulated school systems at all times school children in 
general and regardless of race are permitted to progress on a 
basis of intelligence, ability, achievement or other aptitudes.
In no case called to the Courtfs attention has it been held that 
there is any constitutional requirement that children differing 
in ages and qualifications be educated together. In Brown it 
was held that only school children of "similar age" and the "same 
educational qualifications" are entitled to be classed together in 
schools under the equal protection clause of the 14th Amendment.

- 3 -



Where facts are fully developed and the evidence is undisputed 
or without material conflict, a final judgment may be rendered ©r 
directed by the reviewing court. (5B C.J.S. 425). Instead of 
directing this Court as to what judgment should be rendered or as 
to "the manner in which integration should be accompliaaied", as 
the Court of Appeals had previously done in Stell vs. Ssvaaanh- 
Chatham County Board of Education. 3lB F.2d 425» before hearing 
any evidence, the Court of Appeals, after seeing a Tran,script of 
the evidence, remanded the case to this Court for a dotarain&tion 
of the manner in which integration should be accomplished. In 
order to reach an intelligent and upright decision as to "the 
manner in which integration is to be accomplished", without regard 
to race, this Court must base that decision on law and the evidence 
adduced upon the trial. The evidence adduced at the trial on the 
merits in this case serving as guide lines for such purpoga was 
undisputed, credible and convincing ,?£tnd was not questioned either
by the plaintiff or the Circuit Court.

*

THE MANNER IN WHICH INTEGRATION 
IS TO BE ACCOMPLISHED______

The Intervenors alleged the following in paragraph 5(a) of 
their plea in this case:

"(a) Existing ethnic group differences in 
educational achievement and psychometric 
intelligence are of such a magnitude that 
extensive* racial integration will seriously 
impair the academic standards and educational

-4“



opportunities for the petitioners and other 
White children of Savannah-Chatham County.
The mean mental age of White school children 
in Savannah-Chatham County ranges from two 
to four school years ahead of the mean mental 
age of Negro school children in Savannah- 
Chat ham County. If the Negro and White 
children are educated in the same schools 
and in the same rooms with the same teachers 
and all are grouped on the basis of academic 
achievement the White students will average 
from two to four years younger in chron­
ological age than the Negro students. On 
the other hand if such children are grouped 
on the basis of chronological age, existing 
academic standards in the now all-White 
schools cannot be maintained and the system 
of education for the White children will be 
virtually destroyed, without any corresponding 
benefit to the academic progress of the Negro 
students.”

* The word ’'extensive" or major was arbitrarily defined in
paragraph 9 as "around 20c/o of the school population".

- 5“



The testimony of Dr. R. T. Osborne of the University of Georgia, 
based on the testing of a large representative sample of negro and 
white students in Savannah over a six year period, referred to in 
220 F.Supp. 667, and more fully set forth in a monogram introduced 
in evidence as an appendix in this case, entitled "Racial Difference 
in School Achievement", established:

"On group achievement tests designed to evaluate 
the degree of success in learning the basic subjects 
taught in public schools the American Negro with 
rare exception is unable to keep pace with established 
grade norms. In most subjects the average Negro 
child falls behind the norm group at the rate of 
almost one-third of a grade per year, until by 
the time he graduates from high school he is in 
some areas four full years below the twelfth grade 
standard.” (Appendix, p. 3)

It was revealed with respect to Savannah pupils: (p. &)
"Growth patterns of mental ability grade place­

ment for the two groups are seen in Figure 3 •• The 
difference in mental maturity of over two years at 
the sixth grade (1954-) whs slightly attenuated at 
the eighth grade testing (1956), but by the second 
semester of the tenth grade (1958) the means of 
the two groups are separated by over three years.
The same relative position of the two corves was 
maintained through the last testing period of the

-6-



experiment, twelfth grade (I960). By the time 
the students were examined at the tenth grade 
there was practically no overlap in I.Q.; that 
is, only one tenth grade child in the white 
group earned an I.Q. below the median I.Q. of 
the Negro children in the same grade. At the 
tenth grade only one per cent of the Negro 
pupils equalled or exceeded the median I.Q. 
of the whites (Table I).n (Appendix, p. 8)

In summarizing his results of the studies of the Savannah 
schools, Dr. Osborne dealt with the specific question that now 
concerns this Court. He said:

"If public schools are ordered to integrate 
en masse there appear to be three possible courses 
of action:

1. Lower the educational standards and level 
of instruction in the white schools to the 
present passing level in the Negro schools.
The net result of this would be to maintain 
for Negro pupils standards now existing in 
their schools, but lower expectations for 
the white children two to four years be! 
their present grade norm. If this plan were 
adopted, there would be few if any failures 
or repeaters among the white children because 
they would almost never do so poorly as to

- 7-



fail by present Negro standards. It goes 
without saying that no reasonable citizen 
would sanction such a plan to lower our 
educational standards at a time when there 
is a world-wide attempt to strengthen 
teaching and up-grade education at all 
levels.

2. Raise educational standards required of 
the Negro child to those required of white 
children and maintain the present level of 
instruction and rate of failures. This 
alternative would result in a 40 to 60 per 
cent Negro failure rate in intermediate 
grades. At the high school level where 
achievement differences are of the magni­
tude of three to four years, failure rate 
for the Negro student would be 80 to 90 
per cent with larger and larger numbers
of Negro children piling up in the lower 
grades.

3. The final alternative would be to maintain 
the two existing levels of instruction and 
to apply differential marking and evaluation 
systems to the two groups. This alternative 
would result in de facto segregation because 
for teaching efficiency learners within each 
school are grouped according to achievement 
and learning ability.

- C -



"None of the proposed alternatives represents 
a real solution to the problem and e^ch would result 
in educational chaos and confusion and bring about 
an over-all weakening of the educational system.
The school administrator who has the responsibility 
of providing meaningful educational experiences for 
all children must have an instructional program 
that will provide realistic educational goals for 
all boys and girls regardless of race.

"In regions of the United States where the Negro 
population is relatively small there may bo no 
problem of balancing the schools in terms of race. 
However, in the South-eastern United States where 
upwards of 30 per cent of the population is Negro, 
racial differences in school achievement can no 
longer be ignored. Attempts to explain the reasons 
for the differences on the basis of environmental 
or genetic conditioning will not solve the problem. 
Regardless of etiology, racial differences in 
school achievement do exist and must be reckoned 
with." (Appendix, pp.17, 18.)

Since the original Brown case, 347 U.S. 483, held that only 
children of "similar age" and the "same educational qualifi­
cations" are entitled to be classed together in schools under the 
equal protection clause of the 14th Amendment, this Court was 
free to find and did find upon the unchallenged and unquestioned 
evidence that in order for school children to be effectively

- 9 .



educated in S&v&nn&h-Chathaa County they Bust he separated sad 
classified as to age and educational qualifications. Facts thus 
established are final and are not subject to reversal. It is the 
law of this case and the law of the land that separation may not 
be accomplished by using race and color as sorting criteria, but 
the law leaves school authorities free to educate school children 
efficiently without regard to race or color.

In addition to the evidence in the record on appeal, a piece 
of newly .discovered evidence was introduced before the Court at the 
hearing. It is a published study entitled "PROJECT TALENT" (1963). 
which is an official report of a research study based on conditions 
found in 773 public senior high schools in all sections of the 
United States. It was made as a part of a Research Program conducted 
by the University of Pittsburgh and financed by and conducted in 
behalf of the Office of Education, u. S. Department of Health, 
Education, and Welfare, (the agency now charged by law with enforce­
ment of the desegregation provisions of the Civil Rights Act of 
1964). It reports that the indiscriminate integration of school 
children by race without regard to diversities of ages and mental 
qualifications tends to deprive fast learners of opportunities for 
advancement and to decrease the mean scores of all school children 
while increasing drop-out rates of slow learners and decreasing 
chances of college entry by average learners, regardless of the 
environment of such children. (Project Talent (1963) pp. 4-6)

No effort was made by the plaintiff or the defendant to 
refute or disparage this additional evidence. Indeed, the 
plaintiff in this case has not at any time assumed any position 
contrary to the findings of this Court from the evidence and 
from the findings made at the behest of the United States

- 1 0 -



Department of Health, Education and Welfare. The stipulation made 
by Mrs. Motley during the trial of this case and while Dr. Henry E. 
Garrett, formerly of Columbia University and now of the University 
of Virginia, was on the stand, has never been withdrawn and must be 
accepted as true, to-wit:

"negroes, generally, on achievement tests, do 
not perform as well as whites - - - we will 
stipulate that. He doesn’t have to testify 
to it. We will agree to that."

"The Court: Agree to what?
"Mrs. Motley: That these tests, which have

been administered, show that negroes, generally, 
do not perform on the achievement tests as well 
as whites. Now, if that is all he is going to 
show, we will stipulate that, because the other 
witness /Sr. Osborne/ has already said that."
(Transcript of Proceedings, p. 134)

In the plan filed by the defendant School Board now before the 
Court for consideration, there is no indication that integration is 
to be accomplished in any other manner than congregating children 
because of race and color. In fact, the plan takes no account of 
age and qualifications and the es&ex permissible criteria for 
classification, other than race or color, pointed out by the 
Fifth Circuit Court of Appeals. To do so, it is urged by counsel 
for defendant in support of the plan tendered,

"would tend to develop ’superiority complexes’ 
among those of high intelligence and aptitudes,

-11



and 'inferiority complexes' among those of 
lower intelligence and aptitudes who would 
be placed in what could well be regarded as 
'schools for the dumb' or 'schools for the 
retarded'; such encouragement in a public 
school system operated in a democracy would 
be unthinkable”.

Such a contention is itself "unthinkable”. To restrain bright 
children in order to keep "dumb” children from experiencing the 
urge that goes with an "inferiority complex” would subvert and 
nullify the educational process. Excellence is not to be penalized 
in order to exalt mediocrity.

It requires no considerable amount of intelligence for anyone 
to discover that a six or a sixteen year old child is not mature 
enough to change the culture and improve the weaknesses of another 
individual or race. The advancement of one should not be retarded 
on the theory that by doing so those dissimilar in age and 
qualifications will profit by such repression of talent.

IT IS ORDERED that the plan filed by defendants be and the 
same is disapproved and disallowed and defendants are hereby ordered 
promptly to prepare and submit a plan of desegregation not 
inconsistent with but which will accord with (1) the unquestioned 
and undisputed facts adduced at the trial and subsequent hearing 
of this case; (2) the decision of the Fifth Circuit Court of 
Appeals; and (3) the decision of the Supreme Court in Brown, to 
the end that race or color will not be factors. The plan should 
assure that integration may be accomplished in such a manner as to

- 1 2 -



provide the best possible education for all school children with 
the greatest benefits to all school children without regard to 
race or color* but with regard to similarity of ages and qualifi

SCHOOL TEACHERS

The plaintiffs prayed in their petition for- integration of 
teachers but stated at the last hearing that they would not new* 
insist upon it. Intervenors stated that they would insist upon 
white teachers being no longer discriminated against in favor of 
negro teachers.

It having been made to appear upon the trial of this case 
(Appendix, p. 16) that in Savannah "The mean yearly salary of 
Negro teachers markedly exceeded that of the White teachers'," 
and that "Negro principals assigned relatively lower competence 
ratings to the Negro teachers tinder their supervision than the 
white principals assigned to the white teachers under their 
supervision®;

IT IS FURTHER ORDERED that the plan shall provide that 
discrimination in favor of Negro teachers and against Unite 
teachers shall be terminated.

IT IS FURTHER ORDERED that the defendant School Board shall 
continue to collect and shall give effect to test results so tha 
race and color as such shall play no part in the assignment of 
school children or teachers and so that classifications accord!;- 
to age and mental qualifications may be made intelligently, fair 
and justly.



ORDERED FURTHER that all objections inconsistent herewith

e overruled.
This day of e—, 1965.

stEIUTTSIIrt
SOUTHERN DISTRICT OF GEORGIA

- 14-



IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF GEORGIA 

SAVANNAH DIVISION

RALPH STELL, By Next Friend, et al.,
Plaintiffs

vs.

SAVANNAH-CHATHAM COUNTY BOARD OF 
EDUCATION, et al.,

Defendants
LAWRENCE ROBERTS, et al.,

Intervenors

ORDER ON DESEGREGATION PLAN

The Desegregation Plan previously submitted by the Defendant, 

The Board of Public Education for the City of Savannah and County 
of Chatham, with the additions and deletions contained in the Plan 

set forth below is hereby allowed and approved as in full compliance 

with this Court’s Order of August 23rd, 1965:

DESEGREGATION PLAN

1. In the assignment, transfer, or continuance of pupils 

among and within the schools, or within the classroom and other 
facilities thereof, the following factors, in addition to those

CIVIL ACTION 
NO. 1316



which are normally considered in these respects, shall be con­

sidered with respect to the individual, (1) choice of the pupil 
or his parents or guardians, (2) availability of space and 

facilities in and for the school chosen, (3) proximity of the 

school to the place of residence of the pupil, and (4) the age 
and mental qualifications of the pupil. In such connection, 

no consideration shall be given to the race of the pupil. Where 

space and facilities are not available for all, priority shall 
be based on proximity, except that for justifiable educational 
reasons and in hardship cases other factors not related to race 

may be applied. Administrative assignments or reassignments 
may be made in cases of overcrowding, in hardship cases, in cases 

of inability to keep up with the progress rate of his or her 
class, and for disciplinary reasons. When such administrative 

assignments are made they shall also be based on relative 
proximity and available facilities, giving consideration to 
pupil choice where possible.

2. Subject to supervision and review by the Board, the 

Superintendent of Schools shall have authority and be charged 
with responsibility with respect to the assignment (including 
original and all other admissions to the school system) transfer 
and continuance of pupils among and within all public schools 
operated under the jurisdiction of The Board of Public Education 
for the City of Savannah and the County of Chatham.

3. The Superintendent shall have authority to establish 
each school year attendance areas which shall be based upon

- 2-



all pertinent and relevant factors, except race may not be 

considered, so that choice of schools for pre-registration and 

final registration may be made in a reasonable and orderly 

manner. All existing school assignments shall continue without 
change until or unless transfers are directed or approved by 

the Superintendent or his duly authorized representative.

4. Assignments and transfers of pupils shall be made on 
forms which will be available at the office of the Superin­
tendent of Education, 208 Bull Street, Savannah, Georgia, and 

the choice of the pupil shall be stated at the pre-registration 
or if the pupil does not pre-register, then at the final 
registration dates as determined by the Superintendent for
all students.

5. A separate application must be filed by each pupil 
desiring assignment or transfer to a particular school and no 
joint application will be considered.

6. Applications for assignment or transfers of pupils 
must be filled in completely and legibly, and must be signed 

by the parent or the legal guardian of such child for whom 
application is made.

7. Action taken by the Superintendent on each appli­
cation shall be mailed to the parents or guardian at the 

address shown on the application within 15 days thereafter, 
and such action shall be final unless a request in writing
is made to the Board within 10 days thereafter for a hearing.

£. A parent or guardian of a pupil may file in writing 
with The Board of Public Education for the City of Savannah

- 3 -



and the County of Chatham objections to the assignment of the 

pupil to a particular school, or may request by petition in 

writing assignment or transfer to a designated school or to 
another school to be designated by the Board. Unless a hearing 

is requested, or unless the Board deems a hearing .necessary, 

the Board shall act upon the same within a reasonable time 

stating its conclusions. If a hearing is requested or if the 
Board deems a hearing necessary with respect to the Superin­

tendent’s conclusion on an application, the parents or guardian 

will be given at least ten days written notice of the time and 
place of the hearing. The hearing will be begun within twenty 

days from the receipt by the Board of the request or the 
decision by the Board that a hearing is necessary. Failure 
of the parent or guardian to appear at the hearing will be 

deemed withdrawal of the application.
9 .  The Board may conduct such hearing or may designate 

not less than three of its members to conduct the same and 
may provide that the decision of the members designated or a 

majority thereof shall be deemed a final decision by the Board. 
The Board of Education may designate one or more of its members 

or one or more competent examiners to conduct any such hearing, 
take testimony, and report the evidence with its recommendation, 

to the entire Board for its determination within ten days after 
the conclusion of such hearing. In addition to hearing such 
evidence relevant to the individual pupil as may be presented 
on behalf of the petitioner, the Board shall be authorized to

- 4 -



conduct investigations as to any objection or request, including 

examination of the pupil or pupils involved, and may employ such 
agents and others, professional and otherwise, as it may deem 
necessary for the purpose of any investigations and examinations.

10. Unless postponement is requested by the parents or 

guardian, the Board will notify them of its decision within ten 
days after its receipt of the report of the examiner, or the 
conclusion of any hearing before the Board. Exceptions to the 

decision of the Board may be filed, within five days of notice 
of the Board’s decision, and the Board shall meet promptly to 
consider the same; provided, however, that every appeal shall 
be finally concluded before November 1st of each year hereafter. 
Provided further that nothing herein contained shall be construed 
to deprive any person dissatisfied with the final decision of 

the Board of the right to appeal to the State Board of Education 

as provided by law.
11. If, from an examination of the record made upon 

objections filed to the assignment of any pupil to a particular 

school, or upon an application on behalf of any pupil for assign­
ment to a designated school, or another school to be designated 

by the Board, or from an examination of such pupil by the Board 
or its authorized representative, or otherwise, the Board shall 
determine that any such pupil is between his or her seventh and 
sixteenth birthdays and is mentally or physically incapacitated 
to perform school duties, or that any such pupil is more than 
sixteen years of age and is maladjusted or mentally or otherwise

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retarded so as to be incapable of being benefited by further 

education of such pupil is not justified, the Board may assign 

the pupil to some available vocational or other special school, 
or terminate the public school enrollment of such pupil altogether.

12. Student assignments and transfers shall be made in 

accordance with the rules and regulations stated herein and 
without regard to race or color. The original Plan, which is 

amended hereby, provided for the desegregation for the School 

Year 1963-1964 of students in the 12th grade, and thereafter, in 
each successive year, to the immediate lower grade, and the 12th 

and 11th grades, therefore, were desegregated under the original 

Plan; such Plan is now amended to include all grades for 1966-67.

13. Nothing contained in this Plan shall be construed to 
prevent the separation of boys and girls in any school or grade,
or to prevent the assignment of boys and girls to separate schools.

14. In addition to the criteria hereinbefore set forth,

the Defendant Board shall in making or granting assignments and/or 
transfers take into consideration the similarity of.mental quali­

fications, such as intelligence, achievement, progress rate and 
other aptitudes, such to be determined upon the basis of Nationally 

standardized tests. No student shall have the right to be assigned 
or transferred to any school or class the mean I.Q. of which exceeds 
the I.Q. of the student, nor shall a student be assigned or 
transferred to any school or class, the mean I.Q. of which is less 
than that of the student, without the consent of the parent or 
guardian. New students coming into the system or moving from one

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district to another shall he assigned to their normal neighborhood 

school. If a new student is not satisfied with his school 
assignment, then his case will be handled as that of any other 

student requesting a transfer.
15. Salaries' paid to teachers by said Board shall be based 

on their mental qualifications, capabilities, merit and competence 

as determined by the results of Nationally standardized teacher 
examinations and the judgment of supervisors as to their performance, 

in which race and color shall play no part.
16. If any paragraph of these rules and procedure shall be 

held by any court of competent jurisdiction to be invalid for any 

reason, the remaining paragraphs shall continue of full force and 
effect. If any portion, clause or sentence of any paragraph shall 

be held by any court of competent jurisdiction to be invalid for 
any reason, the remainder of any such paragraph shall continue of 

full force and effect.
FURTHER ORDERED, ADJUDGED AND DECREED that said Defendant Board 

put this Plan into operation not later than the school year 1966-67, 

and publish it in a Newspaper of general circulation in Chatham 

County, Georgia within thirty (30) days from this date, and 

thereafter at least once each year.
FURTHER ORDERED, ADJUDGED AND DECREED that this Court retain 

jurisdiction of this case for the rendering of any additional 
Orders and Judgments which the Court may deem proper.

In Open Court, this November , 1965.

JUDGE, UNITED STATES DISTRICT COURT, 
SOUTHERN DISTRICT OF GEORGIA

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