Calhoun v. Latimer Memorandum of Facts Filed by Respondents Pursuant to Direction of the Court

    Supreme Court of the United States
October Term, 1963 

No. 623

In th e

Fred S. C alhoun , et ah,
Petitioners,

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

On Writ of Certiorari to the United States Court of 
Appeals for the Fifth Circuit.

MEMORANDUM OF FACTS 
FILED BY RESPONDENTS 

PURSUANT TO DIRECTION OF THE COURT

A. C. L atim er ,
Attorney for Atlanta 
Board of Education 
1205 Healey Building 
Atlanta, Georgia

N ew ell Edenfield 
Of Counsel
310 Fulton Federal Building 
Atlanta, Georgia

Attorneys for Respondents



INDEX
Page

IN TRO DU CTION  ______________________________  1

QUESTIONS ANSWERED_______________    3

Formal action of School Board on freedom of 
choice and proximity as assignment and 
transfer criteria. .........    3

Notice to Negro community as to mechanics of
assignment and transfer.______________________  4

A solution to overcrowding. ____________________  5

Present administrative problems. _______________  5

Start toward desegregation in 1961 rather than 
in 1954______________   6

Zone lines vel non. ________    7

RESOLUTION OF TH E A T LA N TA  BOARD
OF EDUCATION______________________________  8

AFFIDAVIT OF THE ATLA N TA
SUPERINTENDENT OF SCHOOLS. _________ 12



I n the

Supreme Court of the United States
October Term, 1963 

No. 623

Fred S. C alhoun , et al.,
Petitioners,

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

On Writ of Certiorari to the United States Court of 
Appeals for the Fifth Circuit.

MEMORANDUM OF FACTS 
FILED BY RESPONDENTS 

PURSUANT TO DIRECTION OF THE COURT

INTRODUCTION.
The confusion and apparent conflict between the 

record and the oral argument in this case came about by 
reason of the fact that the case was argued on a record 
which was then two years old. In the intervening period 
the actual situation in Atlanta, as respects both policies 
and practices, had drastically changed, particularly as a 
result of the decision of the Circuit Court and its im­
plementation by the Atlanta School Board. These changes 
which did not appear in the record then came out in

1



2

argument and in response to questions from the Court. 
Hence the confusion. If this circumstance has incon­
venienced the Court or embarrassed opposing counsel, 
we respectfully ask the forgiveness of both. If we have 
departed from the record, it was unavoidable. The rea­
sons for this were pointed out in our brief in opposition. 
There we said (p. 9) :

“ The most important changes in the plan, how­
ever, are those that have taken place as a result of 
the opinion of Judge Bell, or are planned for 
September, 1964. These are not in the record, of 
course. We are dealing with a record made in the 
first days of desegregation, yet the Court is asked to 
assess the degree of progress toward a goal made 
over a period of time. We do not see how that can 
fairly be done unless we, as attorneys and spokes­
men for the school board, may make reference to 
things that have occurred after the making of the 
formal record.”

In short, what we were attempting to do was to argue 
the case not on the basis of what the Atlanta situation 
was but what it is, based on changes which we conceived 
to be implicit in the lower court’s opinion.

For the convenience of the Court we have arranged 
the material in this response in question and answer 
form, the questions being intended in each case to sum­
marize those asked by the Court. The answers in each 
case show the record reference or the authority on which 
they are based. In order that there be no question as to 
the present policies of the Atlanta school authorities, we 
also include a confirming resolution of the Atlanta Board



3

of Education and an affidavit from the Superintendent 
of Schools.

QUESTIONS ANSWERED.
QUESTION (by Chief Justice Warren)

Where in the record or in the briefs does it appear 
that the Atlanta Board of Education has by formal action 
adopted a present policy of making initial assignments 
or granting transfers on the basis of freedom of choice 
or proximity?
ANSWER:

At the time of oral argument there had been no such 
formal resolution. This was admitted in response to a 
direct question by the Chief Justice. It had been publicly 
stated, however, that under the decision of the Circuit 
Court the only criteria left in the Atlanta plan were free­
dom of choice, availability of facilities, proximity to 
schools, and grade-a-year. (See Affidavit of Superin­
tendent Letson, infra, p. I ! )  That such was the situa­
tion was also indicated in the briefs. (See Brief for 
Respondents, pp. 14-15; see Brief for State of Georgia 
as Amicus Curiae, p. 9.) Availability of facilities as a 
criterion was recited in the preamble to the original 
Atlanta plan (R. 11). Availability of facilities is one of 
the “other relevant matters” (R. 12) which per force 
are a part of any school assignment and transfer plan. 
Choice was one of the criteria contained in the original 
plan (R. 13). All transfers heretofore granted under the 
Atlanta plan were based upon choice. (Affidavit of Su­
perintendent Letson, infra, p. If-.) Choice was not one 
of the criteria which were abandoned. (Brief in Opposi­
tion, pp. 8-9.) Proximity was not one of the criteria ex­
pressly mentioned in the original plan but was recognized



4

by the District Court, by the respondents, and by peti­
tioners to be a relevant consideration in the assignment 
and transfer of pupils (R. 212). Atlanta has now adopted 
a formal policy of applying these criteria in connection 
with assignments and transfers. (See Resolution of the 
Atlanta Board of Education, infra, pp. §-J|.)

QUESTION (by Chief Justice Warren) :

Has the Negro community been apprised of the me­
chanics to be followed in applying for initial assignments 
to the eighth grade and for transfers in the higher grades?

ANSWER:

This question was asked in a context which leads us 
to believe that what the Chief Justice wanted to know 
was whether or not the Negro community had been ad­
vised as to the plans of the school board relating to as­
signments and transfers in September, 1964. In response 
we can only say that there had been a public announce­
ment following the decision of the Circuit Court as to 
what was left of the Atlanta plan. (See affidavit of Su­
perintendent Letson, infra, p. IS.) The decision of the 
Circuit Court was widely publicized and was construed 
by the school board as eliminating all criteria except 
freedom of choice, availability of facilities, and proximity 
of schools. (See Affidavit of Superintendent Letson, infra, 
p. 13.) These were the same criteria urged before the 
Court on oral argument. For each of the previous years 
the Negro community had been apprised of how to take 
advantage of the transfer privilege (R. 63-65, 71) . The 
procedure was printed and made available to the public.
(R. 64) . In previous years the official action of the Board 

of Education was made public (R. 64), it was discussed



5

between the Superintendent and school principals (R. 
64-65, 71), and teachers (R. 65), and was discussed over 
the educational television system (R. 65). It was given 
wide publicity by newspapers, radio and television (R. 
64). It was discussed at Parent-Teacher Association 
meetings (R. 71). The Superintendent was of the opinion 
that there was no lack of understanding as to how to 
apply for transfers (R. 63-64, 71).

QUESTION (by Chief Justice Warren) :

When and how will Atlanta solve the present situation 
with respect to overcrowding whereby some schools are 
crowded to several times their capacity while others are 
only half full?

ANSWER:

The respondents freely admit the existence of this 
situation and concede that the Negro school population 
suffers more as a result than do the whites, although there 
is overcrowding with respect to both (R. 105). Over­
crowding, however, is not so much a racial problem as 
a population problem. The enrollment in Atlanta 
schools has been constantly increasing (R. 101) . This 
increase has consisted almost entirely of Negro children 
(R. 101, 105) . No plan of desegregation, however com­

prehensive or however fairly administered, can com­
pletely solve the problem of overcrowding. Admittedly, 
desegregation will help and is helping this situation, but 
the ultimate solution can lie only in additional con­
struction. JJ-

QUESTION (by Mr. Justice Stewart) :

Does Atlanta presently have any administrative prob­



6

lems which would militate against a more speedy transi­
tion toward complete desegregation?

ANSWER.

Since this question is addressed to the situation pres­
ently existing, it of course can only be answered by going 
outside the record. The administrative problems which 
lead to a staggered plan of desegregation were recited in 
the preamble to the original plan (R. 10-12) . Since the 
existence of these problems was not controverted, the 
District Court took them as true (R. 19). With respect 
to the present situation, we can only say that the same 
problems, including the size of the school system, rapid 
growth of the community, and shifting populations, con­
tinue to exist.

QUESTION (by Mr. Justice Goldberg) :

Why did Atlanta not voluntarily start toward desegre­
gation in 1954, and should it be rewarded because it 
waited to make a start until after a court order which be­
came effective in 1961?

ANSWER:

The answer to these questions must necessarily be 
more practical than legal. The resistance of the Georgia 
Legislature, which threatened to cut off funds, the danger 
of schools being closed, and the successful efforts of the 
Atlanta community to overcome these obstacles have 
been stated and reiterated both in the record and in the 
briefs. (See: Order of District Court of December 30,
1959, R. 29; Order of the District Court of March 9,
1960, R. 43-46; Order of the District Court of September 
8, 1960, R. 48-53; Order of the District Court of June



7

16, 1959, R: 165; Brief in Opposition to Petition for 
Certiorari, pp. 4, 6; Brief for Respondents, pp. 2, 3; 
Brief for the State of Georgia as Amicus Curiae, pp. 2, 
3.)

QUESTION:

Does Atlanta now have or has it ever had inflexible 
attendance zones for each school? (This question was 
raised by several Justices but was perhaps put in best 
perspective by Mr. Justice White, who asked the precise 
question whether the District Court made any finding 
as to the use of attendance lines.)

ANSWER:

The District Court found as follows (R. 158) :

“ Neither does the evidence show that defendants 
are maintaining a ‘dual system of school attendance 
area lines.’ Proximity to the schools in question is 
a factor considered by the defendant Board. It is 
not shown that defendants are acting arbitrarily in 
connection with the assignment of pupils in rela­
tion to their distance from the school. It does ap­
pear that area lines (where such exist) are some­
times changed for the sole purpose of relieving 
overcrowded conditions in the schools.”

On the question of lines the Court of Appeals also 
found (R. 234) that:

“ He [the School Superintendent] testified that 
there were no attendance areas or zone lines es­
tablished by the board, but that lines are sometimes 
drawn administratively between schools in an at­
tempt to equalize class loads. There was no evidence



8

before the court that they were based on race. The 
Atlanta system is divided into five sub-areas with an 
assistant superintendent in charge of each area. One 
sub-area has only Negro schools in it, but there is 
no evidence of white children living in it, or that 
it resulted from gerrymandering.”

In his dissenting opinion Judge Rives challenges these 
statements (R. 250, Footnote 4) . With all deference to 
Judge Rives and to the District Court, the statement 
made in the majority opinion in the Circuit Court more 
correctly states the facts.1 For administrative purposes, 
as distinguished from attendance, the school board has 
divided the City of Atlanta into five administrative areas, 
each under an area superintendent (R. 234) . Atlanta 
has no “ official attendance lines. There are administra­
tive lines drawn by individual schools on occasion to 
equalize the load in various schools.” (R. 61.) “ There 
are no official lines in this city.” (R. 98, 99.) (See also 
R. 104-105.)

RESOLUTION OF THE ATLANTA BOARD OF 
EDUCATION.

A regularly called meeting of the Atlanta Board of 
Education was held at the administrative offices of the 
Board on April 8, 1964. All members of the Board were 
present.

A report was received from Mr. A. C. Latimer, Mr. 
Newell Edenfield, and Mr. J. Lee Perry, the attorneys

1 A reading of the testimony quoted in footnote 4 of Judge Rives’ 
dissent (R. 250) will reveal that the line of inquiry was with
respect to elementary schools which, of course, have not been 
reached by the plan at this date. (R. 61-62).



who appeared for the Board in the case of Calhoun v. 
Latimer before the Supreme Court of the United States.

It was reported by the attorneys that at the time of 
argument the Court was somewhat confused as to exactly 
what issues were presented for decision, inasmuch as 
the record in the case was originally made during the 
1961-62 school year, and particularly because neither in 
the record nor elsewhere did it appear what, policy was 
to be followed by the Board in making assignments and 
granting transfers under the plan of desegregation for 
the school year 1964-65.

By reason of the foregoing and in the light of certain 
questions asked by the Justices during argument, the at­
torneys were requested by the Court to furnish to the 
Court such documents, minutes or resolutions, or other 
actions of the Board as would indicate the exact position 
of the Board on these questions. The attorneys there­
upon requested the Board to adopt such a resolution 
for the benefit of the Court stating unequivocally the 
present policy of the Board and the factors to be con­
sidered by it in making initial assignment of pupils and 
in permitting transfers for the school year 1964-65.

U pon motion made and seconded, the following resolu­
tion was adopted by a unanimous vote:

“ BE IT  RESOLVED: That for the school year
beginning August 24, 1964, all pupils entering the 
eighth grade from elementary schools be assigned 
among the various high schools without regard to 
race, after consideration of the following factors:

1. Choice of the pupil or his parents;
2. Availability of facilities; and



10

3. Proximity of the school to place of residence.
“ BE IT  FURTH ER RESOLVED: That among

those seeking to attend a particular school, where 
facilities are not available for all, priority shall be 
based on proximity, except that for justifiable edu­
cational 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, and for disci­
plinary reasons. When such administrative assign­
ments are made they shall be based on relative 
proximity and available facilities, giving considera­
tion to pupil choice where possible.

“ BE IT  FURTHER RESOLVED: That in
those grades already reached by the Atlanta plan of 
desegregation (ninth, tenth, eleventh and twelfth 
grades) , transfers be freely granted according to the 
criteria hereinbefore provided, without formal ap­
plication, other than the usual pre-registration re­
quired of all students.

“ BE IT  FURTHER RESOLVED: That where
a student has exercised his choice of schools, either 
by initial assignment to the eighth grade or by 
transfer, as herein provided, further and additional 
transfers will be permitted only in hardship cases 
or for valid educational reasons unrelated to race.

“ BE IT  FURTHER RESOLVED: That a
certified copy of this resolution be furnished to the 
attorneys for transmission to the Supreme Court of 
the United States in accordance with its direction.”



11

CERTIFICATE

I, Louise Simpson, Secretary of the Atlanta Board of 
Education, do certify that the within and foregoing con­
stitutes a true and correct transcript of a resolution 
adopted by the Atlanta Board of Education in regular 
called session held on the 8th day of April, 1964.

L ouise Simpson ,
Secretary.

(SEAL)



12

AFFIDAVIT OF THE ATLANTA 
SUPERINTENDENT OF SCHOOLS,

GEORGIA,
FULTON COUNTY

Personally before the undersigned officer authorized 
to administer oaths appeared JOHN W. LETSON, who, 
being duly sworn, deposes and says that he is Superin­
tendent of Schools in the City of Atlanta, Georgia, and 
that he makes this affidavit to be furnished to the Su­
preme Court of the United States for the purpose of 
clarifying and eliminating any uncertainty as to what are 
the present policies of the Atlanta School Board with 
respect to the assignment and transfer of pupils pursuant 
to the plan of desegregation originally adopted pursuant 
to court order in 1959.

Affiant deposes and says that in the opinion of the 
Court of Appeals for the Fifth Circuit (on petition for 
rehearing), the Court held:

“ The corrective action necessary in light of the 
deficiencies will entail the application of the plan 
in an even handed manner without regard to race 
to all assignments of pupils new to a school for ad­
mission in a desegregated grade in that school; and 
to all transfers whether formal, informal or other­
wise. Personality interviews to determine probable 
success or failure in the schools to which transfer 
and assignment is sought may not be utilized where 
such a practice relates only to Negro pupils as was 
the case. No standard requiring that a transferee 
score a grade on scholastic ability and achievement 
tests equal to the average of the class in the school 
to which transfer is sought may be utilized, nor may



13

any scholastic requirement whatever be used where 
applied only to Negro students seeking transfer and 
assignment as was the case in Atlanta in the ad­
ministration of the plan approved by the District 
Court. The opinion is modified to make it clear 
that this corrective action must apply to transfers 
and assignments for the 1963-64 school term to the 
extent, if any, that the practices giving rise to the 
deficiencies may have been continued in use.”

Affiant further says that upon the rendition of the 
judgment quoted, it was publicly stated by him, on be­
half of the Atlanta Board of Education, that under the 
decision initial assignments could be made and transfers 
determined only on the basis of freedom of choice, 
available facilities, proximity, or other valid educational 
reasons, not related to race.

Affiant shows that pursuant to the conclusions stated, 
and in what they conceived to be compliance therewith, 
the Board caused all previous applications for transfer 
to be reconsidered and further caused each of said trans­
fers which had been denied to be granted, provided only 
that the school to which transfer was sought was nearer 
to the place of residence of the student than the school 
then attended.

Affiant shows that the foregoing conclusions of neces­
sity would not appear on the record in the Supreme 
Court of the United States because they represented 
policies which were and could only have been adopted 
subsequent to the decision of the Circuit Court on 
August 16, 1963.

Affiant says further that said policies were publicly re­
ported at the time of the reconsideration of transfer ap­



14

plications following receipt of the Circuit Court opinion. 
Administrative regulations were not formulated and 
distributed because it has always been the policy of the 
Board since the adoption of the original plan to announce 
administrative regulations for the assignment and trans­
fer of pupils by a regulation promulgated in the spring 
of each school year to be effective during the following 
school year.

With respect to “ freedom of choice” as distinguished 
from “ proximity” in making assignments and transfers, 
affiant shows that such a factor was among those con­
tained in the original plan, that all transfers heretofore 
granted pursuant to the plan were initiated pursuant to 
choice, and that for administrative reasons wholly un­
related to race, Atlanta prefers to continue to give rec­
ognition to choice, as well as proximity, in making as­
signments and transfers in the future.

John W. L etson

Sworn to and subscribed before me this 10th day of 
April, 1964.

Fannie R. K night 
Notary Public

Notary Public, Georgia, State at Large. 
(SEAL). My Commission Expires Jan. 26, 1966. 

Respectfully submitted,

A. C. L atim er , Attorney for 
Atlanta Board of Education

N ew ell  Edenfield, 
Of Counsel



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