Economic Justice, General, undated - 34 of 55

    Ihtpran? (Enuri at tljT Initpi*
October Term, 1967 

No.........

1st th e

Brenda K . Monroe, et al.,
Petitioners,

—v.—

B oard of Commissioners of the City of Jackson, 
Tennessee, et al.

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

FOR THE SIXTH CIRCUIT

Jack Greenberg
James M. Nabrit, III
Michael J. Henry

10 Columbus Circle
New York, New York 10019

A von N. W illiams, J r.
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

J. E mmett B allard
116 W. Lafayette St. 
Jackson, Tennessee

Attorneys for Petitioners



TABLE OF CONTENTS

Citations to Opinions Below ........................................... 1

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

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

Constitutional and Statutory Provisions Involved .....  2

Statement ..............................................................................  2

The Jackson City School System and General 
Policies Perpetuating Segregation ......................... 5

The Racial Basis of the Board’s Junior High 
School Attendance Policies and the Educational 
Expert Panel’s Proposed Non-Racial Plan ...........  8

The Expert Panel’s Analysis of Why the City of 
Jackson’s Schools Will Remain Segregated Un­
less its Policies are Changed to Disestablish Seg­
regation ......................................................................  13

R easons fob Granting the W rit—

I. Introduction— The Importance of the C ase.......  15

II. The Sixth Circuit Applied an Erroneous Stan­
dard in Deciding this Case, Which is Incon­
sistent with Decisions of this C ourt....................  19

III. The Sixth Circuit’s Decision Conflicts with Re­
cent Major Decision of the Fifth, Eighth, and 
Tenth Circuits on the Question of Whether a 
Previously Segregated School System Must 
Undertake Affirmative Action to Disestablish 
Segregation ............................................................  24

PAGE

Conclusion



11

A ppendix page

Memorandum Opinion of the United States District 
Court for the Western District of Tennessee (filed 
July 30, 1965) ..................................................................  lb

Order of the United States District Court for the 
Western District of Tennessee (filed August 11, 
1965) ..................................................................................  26b

Opinion of the United States Court of Appeals for the 
Sixth Circuit (filed July 21, 1967) ............................... 33b

Order of the United States Court of Appeals for the 
Sixth Circuit (filed July 21, 1967) ............................... 46b

Table op Cases

Bell v. School City of Gary, Ind., 324 F.2d 209 (7th 
Cir. 1963), cert. den. 377 U.S. 924 ...............................25, 26

Board of Education of Oklahoma City Public Schools
v. Dowell, 375 F.2d 158, cert. den. 387 U.S. 931____28, 29,

30,31
Bradley v. School Board of the City of Richmond, 382 

U.S. 103 (1965) ..............................................................  4
Brown v. Board of Education, 347 U.S. 483 (1954); 349 

U.S. 294 (1955) ........... 4,15,16,19,20,21,22,23,24,25,26

Cooper v. Aaron, 358 U.S. 1 (1958) ...............................22,23

Charles C. Green v. County School Board of New Kent 
Co., Va., Supreme Court No. 695, October Term 1967 15

Goss v. Board of Education of City of Knoxville, Tenn.,
373 U.S. 683 (1963).......................................................... 7,21



I l l

Kelley v. Altheimer, Arkansas Public School District 
No. 22, 378 F.2d 483 (8th Cir. 1967) ...........................27, 28

Kelley v. Board of Education of City of Nashville, 
Tenn., 270 F.2d 209 (6th Cir. 1959), cert. den. 361 
U.S. 924 .......................................................................... 20,21

Louisiana v. United States, 380 U.S. 145 (1965) ...........  23

Mapp v. Board of Education of City of Chattanooga, 
Tenn., 373 F.2d 75 (1967) .............................................. 21

Plessy v. Ferguson, 163 U.S. 537 (1896) ......................... 20

Kaney v. The Board of Education of the Gould School 
District (8th Cir., No. 18,527, August 9, 1967) ...........  28

Reynolds v. Sims, 377 U.S. 533 (1964) ...........................  24
Rogers v. Paul, 382 U.S. 198 (1965) ................................ 4, 23

Schine Chain Theatres v. United States, 334 U.S. 110 
(1948) ................................................................................  23

United States v. Bausch & Lomb Optical Co., 321 U.S.
707 (1943) ..........................................................................  23

United States v. Jefferson County Board of Education, 
et al., 372 F.2d 836 (5th Cir. 1966), re-affirmed
en banc, 380 F.2d 385 (5th Cir. 1967) ...................5,16, 24,

25, 26, 27
United States v. National Lead Co., 332 U.S. 319 (1947) 23
United States v. Standard Oil Co., 221 U.S. 1 (1910) .... 23

Statute

PAGE

42 U.S.C. § 1983 2



IV

Other A uthorities
PAGE

Southern School Desegregation, 1966-67, a Report of 
the U.S. Commission on Civil Rights, July, 1967 .......  16

Desegregation Report, Fall 1966, of Tennessee’s Public 
Elementary and Secondary Schools, a Report of the 
State of Tennessee, Department of Education, Equal 
Educational Opportunities Program ...........................16,17



In t h e

(llimrt nf tfye luitrd States
October Term, 1967

No.........

B renda K. Monroe, et al.,
Petitioners,

— v .—

B oard of Commissioners of the City of J ackson, 
T ennessee, et al.

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

FOR THE SIXTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Sixth Circuit entered in the above-entitled case on 
July 21, 1967.

Citations to Opinions Below

The district court’s opinion is reported at 244 F. Supp. 
353, and is reprinted in the Appendix hereto, infra, pp. lb- 
32b. The opinion of the Court of Appeals is unreported and 
is printed in the Appendix hereto, infra, pp. 33b-46b. An 
earlier district court opinion in this case is reported at 221 
F. Supp. 968.



2

Jurisdiction

The judgment of the Court of Appeals was entered 
July 21, 1967. The jurisdiction of this Court is invoked 
under 28 U.S.C. Section 1254 (1).

Question Presented

Whether the courts below should have required the school 
board to adopt a desegregation plan which would abolish 
the dual school system and eliminate the identifiable Negro 
school.

Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States, and 42 U.S.C. 
Section 1983 providing a right of relief in equity for vio­
lations of constitutional rights.

Statement1

This class action was filed January 8, 1963 by Negro 
students against the Board of Commissioners of the City 
of Jackson, Tennessee, which administers the city school 
system. The original complaint, asserting rights secured 
by the Fourteenth Amendment, sought injunctive relief 
against the continued operation of a compulsory segre­
gated school system, and an order requiring the city to 1

1 The page citations in this Statement are to the original page numbers 
in Volumes I-IV  of the typed transcript o f testimony at the district court 
hearings of May 28 and June 18, 1965, which have been filed as part of 
the certified original record by the Clerk of the Court of Appeals for the 
Sixth Circuit.



3

present a plan for reorganization into a unitary non- 
racial system. In due course, the Board of Commissioners 
came forward with a proposed plan of gradual desegrega­
tion which was modified as to timetable and approved 
by the district court. See 221 F. Supp. 968 (W.D. Tenn., 
1963).

After the elementary school desegregation plan had 
operated for two years, and proposed desegregated junior 
high school zones had been announced, plaintiffs filed a 
Motion for Further Belief (9/4/64), Specification of Ob­
jections to Junior High School Zones (11/30/64), and an 
Additional Motion for Further Belief (4/19/65), alleging 
generally that the Board’s zoning, transfer, and faculty 
assignment policies were designed to perpetuate segrega­
tion to the maximum extent possible. The district court 
held hearing on these motions and objections on May 28, 
1965 and June 18, 1965. The Superintendent of Schools 
testified and plaintiffs presented expert testimony of three 
educational administrators, Dr. Boger W. Bardwell, Super­
intendent of Schools of Elk Grove Township, Illinois; 
Merle G. Herman, Assistant Superintendent of Schools of 
Villa Park, Illinois; and Dr. Eugene Weinstein, Professor 
of Sociology, Vanderbilt University, Nashville, Tennessee.2

2 Dr. Bardwell’s qualifications included B.S., M.S., and Ph.D. degrees 
from the University of Wisconsin in public school administration, fifteen 
years’ experience in school administration generally, and substantial ex­
perience in school building planning and zoning. The Elk Grove school 
district o f which he had been superintendent for five years was of approx­
imately the same size as the Jackson city school system (T. 136-138). Mr. 
Herman’s educational qualifications included a B.A. from McKendree Col­
lege, and an M.A. and completion of most doctoral requirements at Wash­
ington University in St. Louis. His experience included three years’ 
public school teaching, seven years’ public school administration, and ten 
years college teaching in the field of education. During the period in 
which he was a university faculty member, he participated in many school 
surveys in a number of different states, including zoning problems as 
part of those surveys. The school system of which he was Assistant Super­



4

The district court decided that racial gerrymandering 
was so obvious in the case of some elementary zones that 
it was required to order some alterations. However, the 
court ruled that gerrymandering was not obvious enough 
to allow relief in the case of junior high school zones, 
in spite of substantial expert testimony to the contrary. 
The experts had concluded that a school system which in­
tended to desegregate rather than preserve the maximum 
amount of segregation, would, in accord with standard edu­
cational practice, have adopted an entirely different zoning 
system for junior high schools. The district court, in addi­
tion to holding that the Board of Commissioners had no 
affirmative obligation to re-organize its school system to 
disestablish segregation of students, held that the board 
had no obligation to re-assign faculty members to elim­
inate faculty segregation. See 244 F. Supp. 353 (W.D. 
Tenn. 1965), Appendix infra, pp. lb-25b.

On appeal the United States Court of Appeals for the 
Sixth Circuit held that while the district court had erred 
with regard to faculty segregation, citing Bradley v. 
School Board of the City of Richmond, Va., 382 U.S. 103 
(1965), and Rogers v. Paul, 382 U.S. 198 (1965), it had 
not erred with regard to students. The Sixth Circuit re­
affirmed its traditional view of the nature of the consti­
tutional obligation of desegregation that “we read Brown 
as prohibiting only enforced segregation” , and expressly 
disagreed with and declined to follow the contrary view

intendent was also of approximately the same size as the Jackon city 
school system (T. 196-197). Dr. Weinstein’s qualifications included a B.A. 
from the University of Chicago, an M.A. from Indiana University, and a 
Ph.D. from Northwestern University, all in the areas of sociology and 
social psychology. His particular field of specialization was child devel­
opment, and he had conducted studies of the impact of school desegrega­
tion on the development and educational attitudes of children and their 
parents (T. 299-301).



5

adopted by the United States Court of Appeals for the 
Fifth Circuit in United States et al. v. Jefferson County 
Board of Education et al., 372 F.2d 836 (5th Cir., 1966), 
re-affirmed en banc, 380 F.2d 385 (5th Cir., 1967). See 
Appendix, infra, pp. 33b-45b. Plaintiffs seek to have re­
viewed on certiorari the specific ruling on gerrymandering 
of junior high school zones in the Jackson city school sys­
tem, which was based on the general legal premise of lack 
of an affirmative obligation to disestablish segregation of 
students.

The Jackson City School System and General Policies 
Perpetuating Segregation

Jackson, Tennessee is a small to medium sized city in 
mid-western Tennessee, with a school system of approxi­
mately 8,000 students, about 40% Negro and 60% white. 
The system has eight elementary schools, three junior 
high schools, and two high schools (PL Ex. 26). Up until 
the school year 1961-62, eight of the thirteen schools 
(5 elementary, 2 junior high, and 1 high school) were 
exclusively for whites, and the remaining five (3 elemen­
tary, 1 junior high, and 1 high school) were designated 
for Negroes ((PI. Ex. 26), 221 F. Supp. 968).

At least as early as 1956, leaders of the Jackson Negro 
community began petitioning the Board of Commissioners 
to implement this Court’s 1954 decision requiring public 
school desegregation (T. 371-372). They met with total 
failure for at least five years until the beginning of the 
1961-62 school year. Then, pursuant to the Tennessee 
Pupil Placement Act, the board began accepting individual 
applications for enrollment of Negro children in white 
schools. During 1961-62, three Negro students were ad­
mitted to white schools under this act, and in the following 
year (1962-63), four more, for a total of seven (T. 371-372).



6

In early 1963, this lawsuit was filed. In June, 1963, the 
district court granted plaintiffs’ motion for summary judg­
ment, and ordered the Board of Commissioners to file a 
plan of desegregation. After proposing a gradual time­
table for desegregation grade by grade starting from the 
lowest grade up, which was modified and then approved 
by the district court (221 F. Supp. 968), the board began 
implementation of its alleged plan of desegregation in the 
elementary schools in 1963.

A new set of zones for the elementary schools was an­
nounced which was supposed to be unitary, non-racial, 
and drawn according to the accepted educational standards 
of compactness and capacity of buildings. Nevertheless, 
there were certain departures from these standards. The 
district court held after the 1965 hearing that racial gerry­
mandering was so obvious in the ease of the boundaries 
between the white West Jackson and Negro South Jackson 
Schools, the white Parkview and Negro Washington- 
Douglass Schools, and the white Alexander and Negro 
Lincoln Schools that the boundaries had to be re-drawn 
Appendix, pp. 13b-14b.

Plaintiffs’ educational expert Dr. Bardwell testified that 
in addition to these situations which the district court cor­
rected, the boundaries between other white and Negro 
zones were drawn to place Negro children living closer 
to white schools in the Negro zones (T. 152). After inspec­
tion of a map of all elementary zones superimposed on a 
racial residential census of the city, Dr. Bardwell concluded 
that the zones “ follow in many areas the racial complex of 
the neighborhood, rather than the geography of the situa­
tion,” and if geography were the main criterion, seven of 
the eight elementary schools “would be integrated to a 
much greater degree than they are” (T. 153-155).



7

Having achieved the maximum possible perpetuation of 
segregation through school zoning, the defendant school 
system then adopted a transfer policy to make it possible 
for students who were unavoidably zoned to a school where 
their race would be in the minority, to transfer to a school 
where their race would be in the majority (App. 7b-8b). 
While the original plan of desegregation approved by the 
district court in 1963 provided that any transfer policy 
could be adopted as long as it did not have as its purpose 
the delay of desegregation, the district court found in 1965 
that the school system had administered its ostensibly 
open transfer policy in the following manner: “ They have 
allowed white pupils as a matter of course to attend schools, 
outside of their unitary zones, in which white pupils pre­
dominate, and have allowed Negro pupils as a matter of 
course to attend schools, outside of their unitary zones, 
attended only by Negroes but they have denied Negroes 
(and specifically intervening plaintiffs) the right to attend 
predominantly white schools outside of their unitary zones” 
(T. 346-347, App. 8b). In other words, the Board was using 
the “minority to majority” transfer policy which had been 
condemned by this Court in 1963 in Goss v. Board of Edu­
cation, 373 U.S. 683 (1963), App. 8b.3

After the Board of Commissioners began its plan of os­
tensible desegregation in 1963, it continued its previous

3 Other aspects o f the system’s transfer policy were also administered 
in accordance with the principle of a segregated dual school system. Plain­
tiffs’ educational expert Mr. Herman testified that the Jackson city school 
system admitted approximately 400 students from surrounding Madison 
County (out of approximately 8,000 total students in the city system), 
and all white students were assigned to schools which were all or 
predominantly white and all Negro students to schools which were all- 
Negro, without exception (T. 210-211). Mr. Herman also suggested that 
county transferees of the same race as the predominant race in any par­
ticular school were apparently given priority in assignment over students 
of a minority race who actually resided in the zone of that school (T. 211).



8

practice of assigning Negro teachers only to schools whose 
enrollments had been and remained all-Negro, and white 
teachers only to the schools which had been previously all- 
white and remained predominantly white under the deseg­
regation plan in operation (T. 294). As late as the 1964-65 
school year, the Board was asserting as the basis of this 
policy that “ the integration of the faculty is not related 
to nor necessary for the achievement of elimination of com­
pulsory segregation” (53a) and that “ the destruction of 
the entire City School System is seeded in this request 
[for faculty desegregation] in such fashion as to be beyond 
the control of defendant officers, not from violence but 
from student withdrawal” (42a).

The Racial Basis of the Board’s Junior High School 
Attendance Policies and the Educational Expert Panel’s 
Proposed Non-Racial Plan

The district court’s approval of the Board of Commis­
sioners’ zoning plan for junior high schools, as affirmed by 
the Court of Appeals, is specifically at issue here. Jackson 
has three junior high schools: Tigrett, heretofore all-white, 
is located in the western part of the city; Merry, hereto­
fore and still all-Negro, in the center of the city; and 
Jackson, heretofore all-white, in the eastern portion (PI. 
Ex. 26, App. 14b).

All three junior high schools were constructed in the ten- 
year period after 1955 during which the Board of Com­
missioners was operating a segregated school system con­
trary to this Court’s 1954 and 1955 pronouncements in the 
Brown cases (T. 174). The two schools intended for whites 
were located in the centers of white residential concentra­
tion in the western and eastern sections of the city; the 
single school intended for Negroes was located in the center



9

of the Negro residential concentration in the central sec­
tion of the city (T. 201-205).

When the Board of Commissioners was finally forced to 
announce a plan for the desegregation of the junior high 
schools in late 1964 under the district court’s original 1963 
order, it proposed a set of irregularly shaped zones in 
which the center zone for previously all-Negro Merry 
Junior High School was shaped roughly like an hour glass 
(PL Ex. 19). In developing these zones, the Superintendent 
of Schools apparently did not undertake to find out how 
many junior high school students there were in the city 
and attempt to match the numbers of students to the 
capacities of the respective schools, in spite of affirming 
that he used educational considerations such as capacity of 
schools in formulating the zones (T. 38-135, 63-65).

After analysis of a racial residential map of the city 
showing the locations of the residences, and the race, of all 
students in the school system, plaintiffs’ educational expert 
Merle G. Herman concluded with regard to the junior high 
school zones: “ There seems to be a very distinct tendency 
for the lines to follow the residences of Negroes and whites 
—in other words, separating the two. Where there is a 
large Negro population, there tend to be lines drawn to 
maintain segregation in the schools that serve those areas” 
(T. 201).

After the new junior high school zones were announced 
for the following year in late 1964, and after the school 
system had discovered from the 1964-65 enrollment figures 
that all-Negro Merry Junior High School, which then ac­
commodated all Negro junior high school students in the 
city but one, was three pupils over capacity, the Board of 
Commissioners decided in the spring of 1965 to construct 
four additional classrooms at Merry so as to increase its



10

capacity by 120 (T. 35-36, 99-100). This decision was made 
despite the facts that (1) the enrollments of the two pre­
viously all-white junior high schools were approximately 
300 students under capacity, and (2) the elementary school 
enrollment figures indicated that total junior high enroll­
ment for the system would remain constant at about 100 
students above the present enrollment for at least the next 
four years (T. 35-36, 215-216).

When asked whether based on his experience no white 
children conld be expected to enroll in Merry Junior High 
School and would it not therefore remain all-Negro, the 
Superintendent of Schools said, “Judging on the basis of 
what has happened up to now, that might be the case. . . . 
I imagine it will be predominantly Negro” (T. 101-102). He 
also expected that the small number of Negro students 
from the other two zones of the heretofore all-white junior 
high schools would continue coming to Merry, something 
the Board’s transfer policy would encourage (T. 102). The 
Superintendent attempted to justify the construction of 
an addition to Merry Junior High by pointing out that 
all-Negro Merry Senior High School (in the same build­
ing), was growing and might need some of the rooms pres­
ently used by the junior high school. But he also admitted 
that the all-white senior high school (not yet then deseg­
regated) was 249 students under capacity (T. 103).

In the course of the district court hearing on the pro­
posed junior high zones, plaintiffs’ educational expert Mr. 
Herman explained that the standard basis for drawing 
junior high school zones was the “ feeder” principle. By this, 
junior high school zones are based on elementary school 
zones and are composed by clustering several such zones 
so that all students from the same elementary school go on 
to attend the same junior high school:



11

. . . , the main consideration is to follow ordinarily 
the elementary school lines so that when elementary 
schools are then taken and six graders graduating go 
into junior high schools, then there is an integration 
of effort between the elementary schools and the junior 
high schools where orientation procedures might be 
developed, that is where sixth graders might go into 
junior high schools and get acquainted with it. The 
principals are able to work together in enabling a suf­
ficiently easy transition from the elementary to the 
junior high school. Also from a guidance point of 
view, it is well that the schools have some associations 
that are teacher relationships and administrative re­
lationships which should be developed between the 
feeder schools and the schools into which the children 
are being enrolled (T. 198-199).

He also explained that geography and compactness were 
not so important in junior high zoning as in elementary 
zoning, since junior high students are “ old and mature 
enough to take care of themselves on the streets . . . and, 
therefore, you don’t pay too much attention to the or­
dinary barriers that you consider at the elementary school 
level” (T. 199-200). The Superintendent of Schools ad­
mitted the desirability of the “ feeder” principle in devel­
oping junior high school zones (T. 104-105).

When asked whether the Board of Commissioners’ junior 
high school zoning plan violated the “ feeder” principle, 
plaintiffs’ educational expert Mr. Herman stated: “Yes, 
it does, because the lines of the elementary schools are 
not consistent with the lines which separate the zones of 
the junior high schools” (T. 203). Mr. Herman concluded 
that since “ it is an accepted fact here, I think, that white 
children attend white schools and Negro children attend



12

Negro schools,” that even though a completely free trans­
fer system was superimposed on the Board’s junior high 
school zones based on race, “ segregation will continue to 
exist” (T. 206).

As a further check on whether the Board of Commis­
sioners’ proposed junior high school zones were drawn 
with the primary goal of preserving the maximum amount 
of segregation, rather than according to standard educa­
tional practice, plaintiffs’ experts undertook to draw junior 
high school zones for the city of Jackson, as they would 
for their own school systems. They obtained all of the rele­
vant data necessary for drawing such zones, such as de­
tailed maps of the city, the locations of the elementary and 
junior high schools, the locations of the residences of all 
students, the capacities of schools, etc., both from the office 
of Superintendent of Schools and by utilizing a research 
assistant at Lane College in Jackson (T. 138-139, 142-145, 
171-172, 187-190, 368-370).

The expert panel concluded that by using the accepted 
“feeder” principle, all of the existing elementary schools 
in the city were located so that compactly designed zones 
around them could be conveniently clustered into three 
zones for the three existing junior high schools in the fol­
lowing manner: (1) Parkview (white), Washington-
Douglass (Negro), and Whitehall (white) Elementary 
School zones would be the zone for Jackson Junior High 
School; (2) Highland Park (white), West Jackson (white), 
and South Jackson (Negro) Elementary School zones would 
be the zone for Tigrett Junior High School; and (3) 
Alexander (white) and Lincoln (Negro) Elementary School 
zones would be the zone for Merry Junior High School 
(T. 209). Each of these elementary schools is located con­
veniently to its proposed feeder junior high school, and



13

the capacities of the elementary schools were matched to 
their respective proposed feeder junior high schools (T. 
209). The expert panel assumed that the then existing ele­
mentary school zones drawn by the Board of Commissioners 
would have to be altered to produce greater compactness 
and reduce racial gerrymandering, as the district court 
eventually required, in part (T. 208-209, App. 13b). The 
panel concluded that by drawing the zones in accordance 
with the “ feeder” principle, “ the junior high school zones 
would be developed objectively, without regard to the 
racial character of the neighborhood” and “ from an educa­
tional point of view, it would be sound” (T. 209).

The Expert Panel’s Analysis of Why the City of Jackson’s 
Schools Will Remain Segregated Unless its Policies are 
Changed to Disestablish Segregation

All three of plaintiffs’ educational experts agreed that 
the combined effects of the school system’s racial zoning 
policy, segregated faculty assignments, and “minority to 
majority” and other racially based transfer policies, had 
preserved almost total segregation, and had in fact fostered 
segregation after the schools had ostensibly been desegre­
gated. Dr. Roger W. Bardwell pointed out that where 
the Board had zoned all of the schools in such a way that 
their enrollments were conspicuously either predominantly 
white or almost all-Negro, and thus preserved the racial 
identity of the schools as they were under the dual school 
system, the availability of the transfer option caused the 
racial identification of the schools to become even more 
pronounced by permitting the remaining students of the 
minority race in each school to transfer out (T. 159-161,183- 
184). Dr. Bardwell indicated that where the school sys­
tem had conferred racial identities on individual schools, 
it would be expected that substantial numbers of students



14

would transfer out of those schools because they were 
of the minority race and this was confirmed by the fact of 
an abnormally large number of transfers within the sys­
tem (T. 159-161, 183-184). Merle G. Herman stated that 
the effect of a transfer system predicated on race super­
imposed on zones predicated on race would operate “ to 
maintain whatever the attitude structure is of the people 
who have children in those schools” and where the attitude 
toward integration was obviously unfavorable because of 
the large number of minority to majority transfers, “ this 
would totalize segregation” (T. 200-202). Dr. Eugene Wein­
stein pointed out the cumulative effects of faculty segre­
gation on the racially gerrymandered zoning and minority 
to majority transfer policies: “First, especially in con­
junction with a transfer plan, it tends to continue to stig­
matize Negro schools or schools that were formerly Negro' 
schools as Negro, and to make schools which were newly 
desegregated still be regarded as white schools as part 
of the generalized conception of the schools themselves” 
(T. 302). He concluded that “ faculty segregation tends to 
make additional impetus to transfer out of a Negro school, 
because it is obvious that it is Negro in all of its educa­
tional environs and it tends to stigmatize a school as a 
Negro school” (T. 315). Dr. Bardwell and Mr. Herman both 
concurred in Dr. Weinstein’s conclusion (T. 160, 201).



15

REASONS FOR GRANTING THE WRIT

I.

Introduction— The Importance of the Case.

This case raises a fundamental issue concerning the 
implementation by the lower federal courts of this Court’s 
decision in Brown v. Board of Education, 347 U.S. 483; 
349 U.S. 294, requiring desegregation of the public schools 
where there has been compulsory legal segregation. The 
issue is whether a city school system which utilizes all the 
discretion available in locating buildings, and determining- 
attendance zoning and student transfer policies, to per­
petuate and increase racial segregation in the period fol­
lowing the Brown decisions, should be held to have met its 
obligations to desegregate simply because it has also 
permitted a small number of Negro students to attend 
previously all-white schools.

The City of Jackson’s combination zoning and transfer 
plan is one of the two common types of desegregation! 
plans utilized in the South, especially in city school sys­
tems. The other is the “freedom of choice” type plan. 
See petition now pending in Green v. County School Board 
of New Kent Co., Virginia, No. 695, October Term 1967. 
Both types of desegregation plan achieve the common result 
of keeping previously all-Negro schools all-Negro; the 
only integration which occurs comes from a small propor­
tion of Negro students attending predominantly white 
schools.

Although the proportion of Negroes in all-Negro schools 
has declined since the 1954 decision of this Court in Brown, 
more Negro children are now attending such schools than



16

in 1954.4 Indeed, during the 1966-67 school year, a full 
12 years after Brown, more than 90% of the almost 3 
million Negro pupils in the 11 Southern states still at­
tended schools which were over 95% Negro and 83.1% 
were in schools which were 100% Negro.5 And, in the case 
before the Court, over 85% of the Negro pupils in the sys­
tem still attend schools with only Negroes.6 Thus, “ this 
June, the vast majority of Negro children in the South 
who entered the first grade in 1955, the year after the 
Brown decision, were graduated from high school without 
ever attending a single class with a single white student.” 7 
And, as the Fifth Circuit has had occasion to say, “ for 
all but a handful of Negro members of the High School 
Class of 1966, this right [to a racially non-discriminatory 
public school system] has been of such stuff as dreams are 
made on.” 8 It is clear then, that the desegregation process 
ordered by the first Brown decision has met with unfore­
seen obstacles, and that further consideration of the prob­
lem of remedy originally considered in the second Brown 
decision is in order.

The issue of this case of a systematic evasion of the con­
stitutional obligation to desegregate is raised more partic­
ularly by a fact situation in which a board of education 
(1) maintained a completely compulsorily segregated sys­

4 Southern School Desegregation, 1966-67, a Report of the U.S. Com­
mission on Civil Rights, July, 1967 at p. 11.

5 Id. at 165.

6 State of Tennessee, Department of Education, Equal Educational Op­
portunities Program, Fall 1966 Desegregation Report on Tennessee’s Pub­
lic Elementary and Secondary Schools (compiled from reports to the U.S. 
Office of Education).

7 Southern School Desegregation, 1966-67, at p. 147.
8 United States et al. v. Jefferson County Board of Education, et al., 372 

F.2d 836, 845 (5th Cir., 1966) re-affirmed en banc, 380 F.2d 385 (5th

Cir., 1967).



17

tem after Brown until this lawsuit was filed in 1963, 
(2)undertook the constructon of three compulsorily segre­
gated junior high schools during the period after Brown 
which were located in the centers of racially segregated 
residential concentrations of the city, (3) at the start of 
the junior high desegregation plan in 1965 zoned those 
schools in such a way as to follow the patterns of racial 
residential segregation to the maximum extent possible, 
(4) provided a transfer provision by which students of 
the minority race (white or Negro) who were unavoidably 
zoned to a school in which they would be in a racial minor-, 
ity were encouraged to transfer to a school in which they 
would be in a racial majority, and (5) upon determining 
that the single all-Negro junior high school was not of 
sufficient capacity to accommodate all the Negro junior 
high students in the city undertook to construct additional 
capacity at that school while there was still substantial 
excess capacity at the two all-white junior high schools.

The result has been and remains that the previously 
all-Negro junior high school remains an all-Negro junioi; 
high school, and that there is a very small proportion of 
Negro students attending the previously all-white and still 
overwhelmingly white junior high schools. (The three 
previously all-Negro elementary schools and the previously 
all-Negro senior high school—not directly in issue in this 
petition—also remain all-Negro under the same policies).9

There is a natural reluctance on the part of an appellate 
court to consider the details of administration of a school 
system and the complexities of desegregation in any partic­
ular district. For this reason, perhaps, this Court has 
considered few school cases since 1954, and those all in one 
form or another raised the question of the survival of the

9 Tennessee Fall 1966 Desegregation Deport, supra.



18

desegregation process itself. Now tliat the pattern of 
resistance has shifted decidedly from absolute defiance to 
evasion, the urgent question is whether a board may adopt 
a course which perpetuates segregation for the overwhelm­
ing majority of Negro students, while paying lip service 
to the obligation to desegregate. This question of necessity 
requires consideration of the details of a particular sys­
tem’s operation, for only in this manner can the principle 
of school desegregation become the practice of disestab­
lishment of segregation.

This case provides an especially appropriate vehicle 
to consider the general problem of evasion of the obliga­
tion to desegregate. The record presents a comprehensive 
analysis of the issues by a panel of educational admin­
istrators who served as expert witnesses. In particular, 
the panel conducted an extensive survey of the zoning 
problem in the Jackson school system just as they would 
have if they were drawing zones for their own systems. 
They then proceeded to actually design a model zoning 
plan for the Jackson junior high schools based on standard 
and accepted educational principles. The fact that this 
zoning plan would completely integrate the three junior 
high schools in Jackson is the most convincing possible 
support for their general conclusion that the zones actually 
devised by the Jackson school system were designed to 
preserve the maximum possible degree of segregation 
rather than according to the asserted non-racial educa­
tional considerations.



19

II.
The Sixth Circuit Applied an Erroneous Standard in 

Deciding this Case, Which is Inconsistent with Decisions 
of this Court.

When confronted with the facts of this case of the racially 
oriented process by which the school board created the 
junior high zones and the end result of almost completely 
segregated junior high schools, the Sixth Circuit in its 
opinion under a heading entitled “ Compulsory Integration” 
stated that petitioners were apparently asking them to 
require school authorities to take “ affirmative” steps to 
eradicate the existing pattern of racial segregation in the 
schools. While indicating that they recognized that they 
were in fact dealing with Tennessee schools which had been 
legally and compulsorily segregated prior to Brown and 
to which the Brown decisions perforce applied, the Sixth 
Circuit held:

We are not persuaded, however, that we should devise 
a mathematical rule that will impose a different and 
more stringent duty upon states which, prior to Brown, 
maintained a de jure biracial school system, than upon 
those in which the racial imbalance in its schools has 
come about from so-called de facto segregation. Ap­
pendix, infra, p. 35b.

In spite of petitioners claim that the City of Jackson’s 
school system had not yet been desegregated according to 
the requirements of the first Brown decision, and that they 
were therefore invoking the equitable obligation of the 
second Brown decision to desegregate, the Sixth Circuit 
suggested that petitioners were really seeking to impose 
a “Bill of Attainder” ( !)  on the State of Tennessee:



20

To apply a disparate rule because these early systems 
[segregated systems] are now forbidden by Brown 
would be in the nature of imposing a judicial Bill of 
Attainder. Such proscriptions are forbidden to the 
legislatures and the states of the nation—U.S. Const. 
Art. I, Section 9, Clause 3 and Section 10, Clause 1. 
Appendix, infra, pp. 36b-37b.

By its reference to the fact that biracial school systems 
“were once found lawful in Plessy v, Ferguson, 163 U.S. 
537 (1896), and such was the law for 58 years thereafter,” 
Appendix, infra, p. 36b, the Sixth Circuit indicated rather 
clearly that it regards the patterns, practices, and traditions 
which were evolved by those biracial school systems as still 
having substantial legitimacy, and, in effect, that Plessy v. 
Ferguson remains influential in construing the extent of the 
obligation to desegregate enunciated by the second Brown 
decision.

The Sixth Circuit held that “ We read Brown as prohibit­
ing only enforced segregation,” and that no relief was 
justified since it was now theoretically possible for individ­
ual Negro students to attend previously all-white schools 
in Jackson. Appendix, infra, p. 35b. It thus re-affirmed its 
limited view of the constitutional obligation of desegrega­
tion earlier enunciated in Kelley v. Board of Education of 
the City of Nashville, Tenn., 270 F.2d 209 (6th Cir., 1959), 
cert. den. 361 U.S. 924 and adhered to consistently since that 
time:

It [the Supreme Court] has not decided that the federal 
courts are to take over or regulate the public schools 
of the states. It has not decided that the states must 
mix persons of different races in the schools . . . The 
Constitution, in other words, does not require integra­
tion. It merely forbids discrimination. 270 F.2d at 226.



21

Based on this view, the Sixth Circuit had held in Kelley 
that a “minority to majority” transfer policy which per­
mitted any child zoned to a school in which his race was in 
the minority to obtain a transfer to a school in which his 
race was in the majority, was not in violation of the Four­
teenth Amendment since “there is no evidene before ns that 
the transfer plan is an evasive scheme for segregation.” 
270 F.2d at 229. But see Goss v. Board of Education of the 
City of Knoxville, Tenn., 373 TJ.S. 683 (1963) which repudi­
ated Kelley and, we submit, the legal philosophy on which 
it rested—which persists in this case. See also Mapp v. 
Board of Education of the City of Chattanooga, Tennessee, 
373 F.2d 75 (6th Cir. 1967).

There is nothing in this Court’s decisions on school de­
segregation which supports the Sixth Circuit’s view on the 
facts of this case that the constitutional obligation of the 
Fourteenth Amendment is satisfied by allowing a few 
Negro students to attend formerly all-white schools, while 
all of the building location, zoning, and transfer policies of 
the school system are manipulated in such a way as to keep 
as many Negro students as possible in all-Negro schools. 
There is also nothing in this Court’s decisions on school 
desegregation which supports the Sixth Circuit’s view of 
the legal standard set by the second Brown decision as in­
volving no affirmative obligation to re-organize the biracial 
school system to eliminate the practice of segregation.

This Court held from the beginning that the constitu­
tional ban on segregation in public education required far 
reaching affirmative action in completely re-organizing the 
entire school system to eliminate the practice. In the second 
Brown decision, 349 U.S. 294 (1955), it said:

At stake is the personal interest of plaintiff's in ad­
mission to public schools as soon as practicable on a



22

nondiscriminatory basis. To effectuate this interest 
may call for elimination of a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles set forth 
in our May 17, 1954, decision. 349 U.S. at 300.

This Court indicated the nature of the obstacles to be 
overcome in the second Brown decision by its direction 
to the courts supervising the re-organization of the school 
systems to “consider problems related to administration, 
arising from the physical condition of the school plant, 
the school transportation system, personnel, revision of 
school districts and attendance areas into compact units 
to achieve a system of determining admission to the public 
schools on a nonracial basis, and revision of local laws 
and regulations which may be necessary in solving the 
foregoing problems.” 349 U.S. at 300-301. This direction, 
combined with the “ deliberate speed” proviso, indicates 
that a thorough and complete re-organization of the segre­
gated school systems was envisioned.

In Cooper v. Aaron, 358 U.S. 1 (1958), this Court stated 
that the Brown decisions imposed an affirmative obligation 
on school officials of segregated dual school systems to dis­
establish segregation:

State authorities were thus duty bomid to devote every 
effort toward initiating desegregation and bringing 
about the elimination of racial discrimination in the 
public school system. 358 U.S. at 7.

Although Cooper itself was a case of clear and direct 
defiance by state officials, this Court looked forward to 
a time when attempts to perpetuate segregation in public 
education might become more subtle, when it said that 
the constitutional rights involved “can neither be nullified



openly and directly by state legislators or state executive 
or judicial officers, nor nullified indirectly by them through 
evasive schemes for segregation whether attempted ‘in­
geniously or ingenuously.’ ” 358 U.S. at 17.

Recently, in Rogers v. Paul, 382 U.S. 198 (1965), this 
Court re-affirmed the completeness of the reorganization 
of the segregated school systems suggested by the enu­
meration of factors in the second Brown decision. It indi­
cated that the provision of transfers for Negro students 
who so desired to schools with more extensive curricula 
from which they had been excluded, was something sub­
stantially less than it envisioned as an adequate general 
plan of desegregation.

In the second Brown decision, this Court directed that 
“ in fashioning and effectuating the decrees, the courts will 
be guided by equitable principles.” 349 U.S. at 300. The 
general equity principle is that there is no wrong without 
a remedy, and therefore equity courts have broad power 
to provide relief and are obligated to do so. The test of 
the propriety of measures adopted by such courts is 
whether the required remedial action reasonably tends to 
dissipate the effects of the the condemned actions and to 
prevent their continuance. Louisiana v. United States, 380 
U.S. 145 (1965). An example of the application of this 
equitable principle is in the antitrust area, where it has 
been held to require the complete dissolution of large na­
tional business enterprises, when there was no other way 
to counteract the previous effects of illegal monopoliza­
tion. United States v. Standard Oil Co., 221 U.S. 1 (1910); 
United States v. Bausch & Lomb Optical Co., 321 U.S. 707 
(1943); United States v. National Lead Co., 332 U.S. 319 
(1947); Schine Chain Theatres v. United States, 334 U.S. 
110 (1948). Similarly, it has been held to require that fed­



24

eral courts conduct the redrawing of state legislative dis­
tricts when there was no other way to counteract the effects 
of population disparities in existing state legislative dis­
tricts. Reynolds v. Sims, 377 U.S. 533 (1964). The Sixth 
Circuit has clearly not recognized its obligations as a court 
of equity in supervising the district courts as directed by 
Brown II to fashion a complete remedy for the unconstitu­
tional operation of a compulsory segregated school system, 
since by no conceivable standard can the effects of the con­
demned action of establishing a pattern and practice of 
segregation be said to have been rooted out from the Jack- 
son city school system.

III.

The Sixth Circuit’s Decision Conflicts with Recent 
Major Decisions of the Fifth, Eighth, and Tenth Circuits 
on the Question of Whether a Previously Segregated 
School System Must Undertake Affirmative Action to 
Disestablish Segregation.

While it may be contended that school desegregation 
cases are all unique because they involve the issue of the 
extent of equitable relief justified by the facts of the par­
ticular case, nevertheless there are general similarities. 
The Sixth Circuit recognized this and expressly stated that 
its view was in conflict with the rule recently expressed by 
the Fifth Circuit on the issue of the extent of the obliga­
tion of a previously legally segregated school system to act 
affirmatively to disestablish that segregation:

We are asked to follow United States v. Jefferson 
County Board of Education, 372 F.2d 836 (5th Cir., 
1966), which seems to hold that pre-Broivn biracial 
states must obey a different rule than those which 
desegregated earlier or never did segregate. This de­



25

cision decrees a dramatic writ calling for mandatory 
and immediate integration. In so doing, it distin­
guished Bell v. School City of Gary, Indiana, 324 F.2d 
209 (7th Cir., 1963), cert, den., 377 U.S. 924, on the 
ground that no pre-Brown de jure segregation had 
existed in the City of Gary, Indiana. . . .

. . .  to the extent that United States v. Jefferson County 
Board of Eucation, and the decisions reviewed therein, 
are factually analogous and express a rule of law 
contrary to our view herein and in Deal, we respect­
fully decline to follow them. Appendix, infra, pp. 36b- 
37b.

The Fifth Circuit holds contrary to the Sixth Circuit that 
affirmative action— such as the rezoning plan offered by 
petitioners’ experts here—must be taken to break up the 
pattern and practice of segregation which had previously 
been established: “ The two Brown decisions . . . compelled 
seventeen states, which by law had segregated public 
schools, to take affirmative action to reorganize their 
schools into a unitary, nonracial system.” 372 F.2d at 847. 
The Court wrote:

I f  school officials in any district should find that their 
district still has segregated faculties and schools or 
only token integration, their affirmative duty to take 
corrective action requires them to try an alternative 
to a freedom of choice plan, such as a geographic at­
tendance plan, a combination of the two, the Princeton 
plan, or some other acceptable substitute, perhaps 
aided by an educational park. 372 F.2d at 895-6.

With reference to the Sixth Circuit’s view that the legal 
standard for the extent of the obligation to desegregate 
is that the Constitution does not require integration, but



26

merely forbids compulsory segregation, the Fifth Circuit 
says that “what is wrong about [this view] is that it drains 
out of Brown that decision’s significance as a class action to 
secure equal educational opportunities for Negroes by com­
pelling the states to reorganize their public school systems.” 
372 F.2d at 865. The court said:

Segregation is a group phenomenon. . . . Adequate 
redress therefore calls for much more than allowing a 
few Negro children to attend formerly white schools ; 
it calls for liquidation of the state’s system of de jure 
school segregation and the organized undoing of the 
effects of past segregation. 372 F.2d at 866.

The Fifth Circuit contradicts the Sixth Circuit’s view 
that segregation in the South is now just like segregation 
in the rest of the country:

. . .  the holding in Brown, unlike the holding in Bell but 
like the holdings in this circuit, occurred within the 
context of state-coerced segregation. The similarity of 
pseudo de facto segregation in the South to actual de 
facto segregation in the North is more apparent than 
real. Here school boards, utilizing the dual zoning 
system, assigned Negro teachers to Negro schools and 
selected Negro neighborhoods as suitable areas in 
which to locate Negro schools. Of course the concentra­
tion of Negroes increased in the neighborhood of the 
school. Cause and effect came together. In this circuit, 
therefore, the location of Negro schools with Negro 
faculties in Negro neighborhoods and white schools 
in white neighborhoods cannot be described as an 
unfortunate fortuity: It came into existence as state 
action and continues to exist as racial gerrymandering, 
made possible by the dual system. 372 F.2d at 876.

# # *



27

The central vice in a formerly de jure segregated 
public school system is apartheid by dual zoning: in 
the past by law, the use of one set of attendance 
zones for {white children and another for Negro 
children, and the compulsory initial assignment of a 
Negro to the Negro school in his zone. Dual zoning 
persists in the continuing operation of Negro schools 
identified as Negro, historically and because the faculty 
and students are Negroes. Acceptance of an indi­
vidual’s application for transfer, therefore, may satisfy 
that particular individual; it will not satisfy the class. 
The class is all Negro children in a school district 
attending, by definition, inherently unequal schools 
and wearing the badge of slavery separation displays. 
Relief to the class requires school boards to desegre­
gate the school from which a transferee comes as 
well as the school to which he goes. It requires con­
version of the dual zones into a single system. Facul­
ties, facilities, and activities as well as student bodies 
must be integrated. 372 F.2d at 867-868.

Moreover, the Sixth Circuit’s decision necessarily con­
flicts with the recent decision of the Court of Appeals for 
the Eighth Circuit in Kelley v. The Altheimer, Arkansas 
Public School District No. 22, 378 F.2d 483 (8th Cir., 1967), 
which specifically rejected the interpretation of the Four­
teenth Amendment adhered to by the Sixth Circuit that 
“ the Constitution, in other words, does not require inte­
gration. It merely forbids discrimination.” 378 F.2d 488. 
The Eighth Circuit held that there is an affirmative obliga­
to disestablish segregation:

We have made it clear that a Board of Education 
does not satisfy its constitutional obligation to deseg­
regate by simply opening the doors of a formerly 
all-white school to Negroes. 378 F.2d at 488.



It added that this meant that the board of education must 
take affirmative steps to change the identities of all-Negro 
schools into integrated schools, as well as allowing in­
dividual Negro students to transfer to formerly all-white 
schools:

The appellee School District will not be fully deseg­
regated nor the appellants assured of their rights 
under the Constitution so long as the Martin School 
clearly remains identifiable as a Negro school. The 
requirements of the Fourteenth Amendment are not 
satisfied by having one segregated and one desegre­
gated school in a District. We are aware that it will 
be difficult to desegregate the Martin School. How­
ever, while the difficulties are perhaps largely tradi­
tional in nature, the Board of Education has taken 
no steps since Brown to attempt to change its identity 
from a racial to a non-racial school 378 F.2d at 490.10

Finally, the Sixth Circuit’s decision conflicts squarely 
with that of the Tenth Circuit in Board of Education of 
Oklahoma City Public Schools v. Doivell et al., 375 F.2d 158 
(10th Cir., 1967), cert. den. 387 TT.S. 931. The factual pat­
tern of this City of Jackson case is virtually identical to 
that with which the Tenth Circuit was confronted in the 
Oklahoma City case. The one difference was that the 
Oklahoma City public schools were somewhat further along

10 A  subsequent decision of the Court of Appeals for the Eighth Circuit, 
Raney et al. v. The Board of Education of the Gould School District, 8th 
Cir., No. 18,527, August 9, 1967, appears to conflict with Kelley v. 
Altheimer since the facts o f the two cases were very similar. However, 
there was little discussion of general legal principles of school desegrega­
tion in Raney, since the Court held that a general attack on the adequacy 
of the desegregation plan had not been properly made in the district 
court. Raney also seemed to leave open the possibility of eventually re­
quiring a complete re-organization of the school system to disestablish 
segregation, but at some indefinite time in the future.



29

in the desegregation process than the City of Jackson. The 
Oklahoma City school system had announced a formal de­
segregation plan in 1955, whereas the City of Jackson 
schools did not take even this initial step until 1961. After 
zoning its schools in such a way as to preserve the maxi­
mum possible segregation without explicit dual zones 
through following the patterns of racial residential segre­
gation, the Oklahoma City school system then instituted a 
“minority to majority” transfer plan by which students 
who were unavoidably zoned to schools where they would 
be in a racial minority were encouraged to transfer to 
schools where they would be in a racial majority. Thus, 
virtually all of the schools in Oklahoma City which had 
been designated as “white” or “ Negro” schools under segre­
gation, remained identified as “white” or “Negro” schools 
because the student bodies were almost or entirely all-white 
or all-Negro. The City of Jackson school system did like­
wise. The Oklahoma City school system continued to as­
sign all-Negro faculties to schools which were all or pre­
dominantly Negro in student body, and all-white faculties 
to schools which were all or predominantly white in student 
body, thereby reinforcing the identifications of various 
schools as being intended for Negroes or whites rather than 
just for students. The City of Jackson school system acted 
similarly. The Oklahoma City school system located new' 
schools constructed after 1955 in the centers of homoge­
neous racial residential concentrations, so as to facilitate 
the perpetuation of segregation through the use of zoning, 
transfer, and faculty assignment policies. The City of 
Jackson school system did the same. At the time of the 
final district court order of relief in the Oklahoma City case 
in 1965, about 80% of the Negro students in the system still 
attended schools which were all-Negro or over ninety-five 
percent Negro in student body. During the last school year 
(1966-67) in the City of Jackson, over 85% of the Negro



30

students in the system still attended schools which were 
one-hundred percent Negro in student body.11

Based on these facts, the Tenth Circuit in the Oklahoma 
City case approved a district court finding that “ the school 
children and personnel have in the main from all of the 
evidence been completely segregated as much as possible 
under the circumstances rather than integrated as much as 
possible.”  375 F.2d at 161, fn. 2. The Tenth Circuit stated 
that “ inherent in all of the points raised and argued here 
by [the school board] is the contention that at the time of 
the filing of this case [1961] there was no racial discrimina­
tion in the operation of the school system.” 375 F.2d at 164. 
It responded that this fact situation did constitute a case 
of legal segregation which had not been disestablished, in 
spite of the facts that zone lines had been redrawn to elimi­
nate obvious duality in 1955, and that there were some 
Negro students attending previously all-white schools:

As we have pointed out, complete and compelled 
segregation and racial discrimination existed in the 
Oklahoma City School system at the time the Brown 
decision became the law of the land. It then became 
the duty of every school board and school official “to 
make a prompt and reasonable start toward full com­
pliance” with the first Brown case. It is true the board, 
in 1955, issued the policy statement and implemented 
it by the drawing of school attendance lines and in­
augurated a “minority to majority” pupil transfer 
plan. The attendance line boundaries, as pointed out 
by the trial judge, had the effect in some instances of 
locking the Negro pupils into totally segregated schools. 
In other attendance districts which were not totally 
segregated the operation of the transfer plan naturally 11

11 Tennessee Fall 1966 Desegregation Report, supra.



31

led to a higher percentage of segregation in those 
schools. 375 F.2d at 165.

The Tenth Circuit then held in Oklahoma City that 
“ under the factual situation here we have no hesitancy in 
sustaining the trial court’s authority to compel the board to 
take specific action in compliance with the decree of the 
court so long as such compelled action can be said to be 
necessary for the elimination of the unconstitutional evils 
pointed out in the court’s decree.” 375 F.2d at 166. In­
cluded in the action required to eliminate the effects of 
previous unconstitutional segregation was an order pairing 
six-year secondary schools so that three grades of each 
school were consolidated in one school and three grades 
in the other school, thereby completely integrating each 
school in the pair. This clearly required a school board 
to take affirmative action to disestablish the pattern and 
practice of segregation preserved through the use of a 
zoning plan; it necessarily is in conflict with the Sixth 
Circuit’s decision in this City of Jackson case which labels 
such affirmative action as “compulsory integration” and a 
“ judicial Bill of Attainder.” Judge Lewis concurring in 
the Oklahoma City case explained the Tenth Circuit’s view 
that since compulsion was used to maintain the system of 
segregation, the compulsion inherent in school assignment 
policies may properly be used to disestablish segregation:

I have no quarrel with the statement that forced 
integration when viewed as an end in itself is not 
a compulsion of the Fourteenth Amendment. But any 
claimed right to disassociation in the public schools 
must fail and fall. I f  desegregation of the races is to 
be accomplished in the public schools, forced asso­
ciation must result, not as the end sought but as the 
path to elimination of discrimination. And, to me,



32

the argument that racial discrimination cannot be elim­
inated through factors of judicial consideration that 
are based upon race itself is completely self-denying. 
The problem arose through consideration of race; 
it may now be approached through similar but en­
lightened consideration.

The correctness of the Sixth Circuit’s differing standard 
for reviewing desegregation plans merits the attention of 
this Court.

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the petition for certiorari should be granted.

Respectfully submitted,

Jack Greenberg
James M. Nabrit, III
Michael J. H enry

10 Columbus Circle
New York, New York 10019

A von N. W illiams, Jr.
Z. A lexander L ooby

McClellan-Looby Building- 
Charlotte at Fourth 
Nashville, Tennessee

J. E mmett B allard
116 W. Lafayette St. 
Jackson, Tennessee

Attorneys for Petitioners



A P P E N D I X



APPENDIX

Memorandum Decision of the United States District 
Court for the Western District of Tennessee

(filed July 30, 1965)

[Caption Omitted]

Plaintiffs have filed motions for additional relief, which 
raise these issues:

1. Whether the assignment and transfer plan and poli­
cies as actually carried out by the defendants violate 
plaintiffs’ constitutional rights, and if so, to what extent 
must the plan or policies be amended;

2. Whether the amended unitary zones for elementary 
schools and the proposed unitary zones for junior high 
schools are gerrymandered to maximize segregation and 
thereby violate plaintiffs’ constitutional rights;

3. Whether the plan for gradual desegregation hereto­
fore approved by the court, viewed as of now, meets the 
constitutional standard of “ all deliberate speed” ;

4. Whether plaintiffs are entitled, under the Constitu­
tion, to an order requiring the desegregation of faculty, 
administrative and supporting personnel, and faculty in- 
service training programs;

5. Whether plaintiffs are entitled, under the Constitu­
tion, to an order prohibiting segregation in curricular and 
extra-curricular activities;

6. Whether plaintiffs are entitled to recover attorneys 
fees incurred in connection with these motions.

We will dispose of these issues in the order in which 
they are set out above.



2b

At the outset it should be noted, as we have indicated, 
that plaintiffs are asserting Fourteenth Amendment rights 
alone, and are asserting no rights under any Act of 
Congress.

In dealing with the multifarious issues that may be 
presented in school desegregation cases, there frequently 
is difficulty in deciding a particular issue even if the 
applicable principle of law has been fairly well crystalized. 
This is especially true in this field because, even though 
so crystalized, an applicable principle is of necessity a 
general principle which must be applied to myriad factual 
situations. More difficulty is encountered, however, when 
an underlying general principle has not yet become clear. 
An example of this is the lack of complete clarity as to 
whether the Constitution requires only an abolition of 
compulsory segregation based on race or requires some­
thing more. This general question must first be answered 
before we can deal with the assignment and transfer issue 
and the gerrymandering issue.

This court has heretofore considered the question as to 
whether the Constitution requires only an abolition of 
compulsory segregation based on race. Vick, et al. v. 
Board of Education of Obion County, Tennessee, 205 F. 
Supp. 436 (W.D. Tenn. 1962); Monroe, et al. v. City of 
Jackson, Tennessee, 221 F.Supp. 963 (W.D. Tenn. 1963); 
and Monroe, et al. v. Madison County, Tennessee, 229 F. 
Supp. 580, (W.D. Tenn. 1964). The latter two opinions 
were rendered at earlier stages of the separate proceed­
ings in this action. We concluded in these opinions that 
abolition of segregatio nbased on race is all that the Con­
stitution requires. We based this conclusion not only on 
our interpretation of the second Brown opinion (349 U.S. 
294 (1954)) and Cooper v. Aaron, 358 U.S. 1 (1958), but 
also on the now famous specific statement to that effect

Memorandum Decision



3b

in Briggs v. Elliott, 132 F.Supp. 776 (E.D. S.G. 1955), 
which was a per curiam opinion by three-judge court 
presided over by Judge Parker of the Court of Appeals 
for the Fourth Circuit. However, plaintiffs again earnestly 
contend that the Constitution requires an integrated ed­
ucation, and so we have taken this occasion again to 
review the law.

We find that the following opinions, among others, cite 
and approve the statement in Briggs v. Elliott, supra, 
to the effect that the Constitution requires only an aboli­
tion of compulsory segregation based on race: Kelley v. 
Boar dof Education of Nashville, 270 F.2d 209, 226 (6th 
Cir. 1959) ;  Bell et al. v. School City of Cary, 324 F.2d 
209, 213 (7th Cir. 1963); Griffin v. Board of Supervisors 
of Prince Edward County, 322 F.2d 332, 336 (4th Cir. 
1963); Dillard v. School Board of City of Charlottesville, 
308 F.2d 920, dissent at p. 926, (4th Cir. 1962); Boson v. 
Rippy, 285 F.2d 43, 48 (5th Cir. 1960); Avery v. Wichita 
Falls Independent School Dist., 261 F.2d 230, 233 (5th 
Cir. 1957); Armstrong v. Board of Education of Birming­
ham, 323 F.2d 333, dissent at p. 346 (5th Cir. 1963); 
Taylor v. Board of Education of New Rochelle, 294 F.2d 
36, dissent at p. 47 (2nd Cir. 1961). It is interesting to 
note that the Fifth Circuit in a very recent case (Single- 
ton v. Jackson Municipal Separate School Dist., ——  F.2d
------ , decided June 22, 1965), recognizing that it had more
than once approved the statement in Briggs, said that it 
now “ should be laid to rest” and that “ . . . the second 
Brown opinion clearly imposes on public school authori­
ties the duty to provide an integrated school system.” 
There is other authority in support of the view now 
taken by the Fifth Circuit, but the clear weight of au­
thority in the Courts of Appeal and District Courts sup­

Memorandum Decision



4b

ports the view taken in Briggs and, as stated, our Court of 
Appeals in the Kelley case, supra, seems to subscribe to 
the Briggs view.

This question as to what the Constitution requires 
comes into sharper focus in two different contexts: one 
is a situation in which “honestly” arrived at unitary zones 
result in de facto school segregation because of existing 
racial housing patterns; the other is a situation in which 
a voluntary assignment and transfer provision, not based 
on race, results in the continuance of segregation. In 
Northcross et al. v. Board of Education of Memphis, 333 
F.2d 661 (6th Cir. 1964) our Court of Appeals recognized 
that there is no constitutional obligation to draw zone 
lines to maximize integration. See also, to the same effect, 
Downs et al. v. Board of Education of Kansas City, 336 
F.2d 988 (10th Cir. 1964), cert, denied 380 IT.S. 914 (1965)1 
The Supreme Court has not dealt specifically with the first 
situation, but it has done so with the second. In Goss, et al. 
v. Board of Education of City of Knoxville, 373 U.S. 683 
(1963), the Supreme Court struck down transfer provi­
sions which allowed pupils who, under the rezoning, would 
be required to attend a school in which they would be in 
a racial minority to transfer to a school in which they 
would be in a racial majority. In so doing, the Court said 
at pp. 686-687:

“It is readily apparent that the transfer system pro­
posed lends itself to tperpetuation of segregation. 
Indeed, the provisions can work only toward that end. 
While transfers are available to those who choose to 
attend school where their race is in the majority, 
there is no provision whereby a student might transfer 
upon request to a school in which his race is in a

Memorandum Decision



5b

minority, unless he qualifies for a ‘good cause’ trans­
fer. As the Superintendent of Davidson County’s 
schools agreed, the effect of the racial transfer plan 
was ‘to erpmit a child [or his parents] to choose 
segregation outside of his zone but not to choose 
segregation outside of his zone.’ Here the right of 
transfer, which operates solely on the basis of a racial 
classification, is a one-way ticket leading to but one 
destination, i.e., the majority race of the transferee 
and continued segregation. This Court has decided 
that state-imposed separation in public schools is in­
herently unequal and results in discrimination in vio­
lation of the Fourteenth Amendment. Brown v. Board 
of Education, 347 U.S. 483, 98 L.ed 873, 74 S. Ct. 
686, 38 ALB 2d 1180 (1954). Our task then is to de­
cide whether there transfer provisions are likewise 
unconstitutional. In doing so, we note that if the 
transfe rprovision were made available to all students 
regardless of their race and regardless as well of the 
racial composition of the school to which he requested 
transfer we would have an entirely different case. 
Pupils could then at their option (or that of their 
parents) choose, entirely free of any imposed racial 
considerations, to remain in the school of their zone 
or to transfer to another.

“ Classification based on race for purposes of transfers 
between public schools, as here, violate the Equal 
Protection Clause of the Fourteenth Amendment.”

And the Court further said at pp. 688-689:

“The alleged equality—which we view as only super­
ficial— of enabling each race to transfer from a de­

Memorandum Decision



6b

segregated to a segregated school does not save the 
plans. Liwe arguments were made without success in 
Brown, 347 U.S. 483, 98 L.ed. 873, 74 S.Ct. 686, 38 
ALB 2d 1180, supra, in support of the separate but 
equal educational program. Not only is race the factor 
upon which the transfer plans operate, but also the 
plans lack a provision whereby a student might with 
equal facility transfer from a segregated to a desegre­
gated school. The obvious one-way operation of these 
two factors in combination underscores the purely 
racial character and purpose of the transfer provisions. 
We hold that the transfer plans promote discrimina­
tion and are therefore invalid.

“This is not to say that appropriate transfer provi­
sions, upon the parents’ request, consistent with sound 
school administration and not based upon any state- 
imposed racial conditions, would fall. Likewise, we 
would have a different case here if the transfer 
provisions were unrestricted, allowing transfers to or 
from any school regardless of the race of the majority 
therein. But no official transfer plan or provision of 
which racial segregation is the inevitable consequence 
may stand under the Fourteenth Amendment.”

It appears that the Court held that these transfer provi­
sions could not stand for two separate reasons: first, on 
their face they contained an invalid racial classification, 
and second, they could operate only to perpetuate segrega­
tion. However, the Court expressly recognized that a 
transfer provision or policy which did not contain a racial 
classification and which allowed transfers as readily to 
a school in which the applicant would be in a racial 
minority as it allowed transfers to a school in which the

Memorandum Decision



7b

applicant would be in a racial majority would be valid. 
The Court therefore did not hold that integration is a 
required end result of the provision or policy. And, as 
we said in our earlier opinion in this very action (221 F. 
Supp. 968, 974), it is difficult to see how it could be held 
that segregation resulting from purely voluntary choice 
could violate the Fourteenth Amendment as it would not 
be “ state-imposed separation.” Similarly, it is difficult to 
see, for the same reason, ho wit could be held that segrega­
tion that resulted from “honestly” arrived at geographical 
zoning could violate the Fourteenth Amendment. We there­
fore conclude, as we concluded before, that the Constitu­
tion does not require integration and that it only requires 
the abolition of compulsory segregation based on race.

We come now to consider the contention of plaintiffs 
that the assignment and transfer plan or policy as actually 
carried out by defendants deprives plaintiffs of their con­
stitutional rights, and if so, to what extent must the plan 
or policies be amended. In the plan heretofore approved 
by this Court in the summer of 1963, pupils already at­
tending school in the system during the 1962-63 school 
year were to be allowed to continue in the school they were 
attending until graduation irrespective of whether they 
lived in the new unitary zone of that school, provided that 
all pupils who lived in the unitary zone of the school and 
who were entitled for that reason to attend the school 
would have a preferential right to attend. We approved 
this provision for reasons set out in our opinion (221 F. 
Supp. 968, 972), pointing out that the provisions would 
expire by its own terms in a relatively few years. With 
respect to assignments and transfers generally, we merely 
held (221 F. Supp. 965, 971) that defendants could adopt 
any plan o rpolic ywith respect to desegregated grades,

Memorandum Decision



8b

provided that no assignment or transfer could be based 
on race or have as its purpose the delay of desegregation 
as contemplated by the plan.

It appears that defendants, in two particulars, have 
gone beyond what they were allowed to do with respect 
to assignments and transfers:

1. They have allowed pupils as a matter of course to be 
assigned or to be transferred out of their unitary zones 
to a school in which they would be in a racial majority 
and have not allowed pupils as a matter of course to be 
assigned or to be transferred out of their unitary zones 
to a school in which they would be in a racial minority. 
More specifically, they hiave allowed white pupils as a 
matter of course to attend schools, outside of their unitary 
zones, in which white pupils predominate, and have al­
lowed Negro pupils as a matter of course to attend schools, 
outside of their unitary zones, attended only by Negroe^ 
but they have denied Negroes (and specifically interven­
ing plaintiffs) the right to attend predominantly white 
schools outside of their unitary zones. This plan or policy 
clearly deprives plaintiffs of their constitutional rights, as 
was held by the Supreme Court in the Goss case, supra, 
and is clearly contrary to our prior holding.

2. They have treated pupils, after they were allowed in 
1963-64 and 1964-65 to attend schools outside of their uni­
tary zones, as if they were thereafter covered by the ap­
proved provision allowing only pupils attending in the 
system in 1962-63 to continue until graduation in the school 
in which they were then enrolled. This approved provision, 
by its own terms, applied only to pupils attending in the 
system in 1962-63.

Memorandum Decision



9b

If defendants intend to continue this policy of allowing 
white and Negro pupils to attend schools outside of their 
unitary zones where they will be in a racial majority, they 
must, beginning with the 1965-66 school year, also allow 
white and Negro pupils to the same extent and under the 
same terms to attend schools outside of their unitary zones 
where they will be in a racial minority. This is required by 
the Goss case, supra, and by the decree heretofore entered. 
Moreover, those Negro pupils who have heretofore applied 
for and been denied the right to attend predominantly 
white schools outside their unitary zones must be admitted 
to such schools, at least in the school year 1965-66, if they 
so desire. This is necessary to vindicate the Constitutional 
rights which have been denied them, whether or not the 
defendants choose to follow the policy herein approved, 
of allowing pupils to attend schools outside their unitary 
zones irrespective of whether they will be in a racial ma­
jority or minority.

It appears that, in carrying out their policy of allowing 
white and Negro pupils to attend schools outside their 
unitary zones in which they would be in a racial majority, 
defendants have not required these pupils to register in 
the schools of their unitary zones and then to apply for a 
transfer. Rather, they have allowed these pupils to register 
directly in the schools outside of their zones. Plaintiffs 
contend that, if defendants choose to go forward with the 
amended policy and plan which the Court is here approv­
ing, each pupil should be required each year to register in 
the school of his unitary zone and apply for a transfer; 
this is necessary, argue plaintiffs, to make the choice more 
realistic. More specifically, it is argued that, given the 
long history of segregation, white and Negro pupils would 
be much less likely to choose to attend the school of the

Memorandum Decision



10b

unitary zone in which they live, if they would be in racial 
minority in that school, if they are allowed to register 
directly in a school in another zone in which they would 
be in a majority. While we believe, as we have held, that 
a system of voluntary choice is constitutional, we also be­
lieve that every safeguard should be had in insure that 
choices will be conscious and considered choices and that 
such a choice will more likely be made if pupils are required 
each year initially to register in the school of the zone in 
which they live. Accordingly, we conclude that this must 
be required by defendants.

With respect to the other particular in which defendants 
have gone beyond what they were allowed to do, pupils who 
were not in the school system in 1962-63 shall not have the 
right, as do pupils who were attending during that year, 
to continue until graduation in a school outside their uni­
tary zone.

The next issue presented is whether the amended unitary 
zones for elementary schools and the proposed unitary 
zones for punior high schools are gerrymandered so as to 
maximize segregation. Before dealing with this issue, we 
should note that plaintiffs first contend that even if the 
zones are not gerrymandered, they will create a large 
measure of de facto segregation, and therefore they must be 
redrawn to bring about more integration. However, we 
dealt with this contention in our earlier opinion in this 
case (221 F.Supp. 968, 973), and we have heretofore dealt 
with it again in this opinion. We have reached the conclu­
sion that “honestly” drawn zone lines, which result in 
de facto segregation, do not deprive plaintiff of any con­
stitutional rights.

In approaching the gerrymandering issue, we must first 
ascertain from the adjudicated cases what constitutes

Memorandum Decision



lib

gerrymandering in school zoning. The Northeross case, 
supra, and the Downs case, supra, hold that a school board 
may, in its discretion, use any rational basis for drawing 
zone lines but that it, of course, cannot consider race as a 
factor. Norther oss specifically holds that the motive of 
minimizing the disturbance of the people and the motive of 
preserving school loyalties are not proper considerations 
in zoning. Norther oss recognized that such considerations 
as utilization of the buildings, proximity of the pupils to 
the schools, and natural boundaries are proper considera­
tions. Northcross also holds that, wThen challenged, the 
burden of proof is on the school board to show that bound­
aries were not drawn with a view to preserve the maximum 
amount of segregation.

In an earlier stage of these proceedings the Court ap­
proved elementary school zones as submitted by defendants 
but, on these motions for further relief, allowed plaintiffs 
to reopen the question as to whether these zones are gerry­
mandered. Defendants have redrawn the boundary between 
West Jackson and South Jackson elementary schools and, 
as so amended, have submitted these elementary school 
zones for approval. Defendants have, pursuant to an order 
of the Court heretofore entered, established unitary zones 
for the three junior high schools and, by consent of all 
parties, the hearing with respect to these zones was held 
concurrently with the hearing on plaintiffs’ motions for 
further relief. It is the contention of plaintiffs that both 
the elementary school zones and the junior high school 
zones are gerrymandered and that the Court should ap­
point a master to redraw the zone boundaries or require 
the defendants to redraw them and resubmit them for 
approval.

Memorandum Decision



12b

Defendants have prepared and introduced into evidence 
maps reflecting the location of the schools, the zone bound­
aries, and the location of the homes of white (in blue) and 
Negro (in red) children of school and pre-school age. De­
fendants also offered in evidence exhibits showing the 
capacity of the schools, the number of pupils that have been 
attending each, and the average size of classes. The super­
intendent testified that the zones were drawn without re­
gard to race and are the result of a consideration of utiliza­
tion of buildings, proximity of pupils to the schools and 
natural boundaries.

In addition to contending that defendants’ proof shows 
on its face that the zones are gerrymandered, plaintiffs of­
fered two expert witnesses, who had also prepared maps, 
and who contended that the zones are gerrymandered. How­
ever, the value of the testimony of these experts was under­
cut by the fact that they assumed that it is the duty of 
defendants to maximize integration because of educational 
benefits that would, in their opinion, flow therefrom. The 
value o ftheir testimony with respect to elementary schools 
was further somewhat undercut because their maps were 
aimed to show the amount of de facto segregation that has 
resulted after two years under the plan. However, in view 
of voluntary transfers by white and Negro pupils, the de­
gree of actual segregation in these schools does not itself 
show that the zones are gerrymandered. The value of the 
testimony of these experts with respect to junior high 
schools was somewhat undercut because they not only again 
assumed a duty to maximize integration but also assumed 
that defendants had the duty to adopt a “ feeder” system 
whereby certain elementary schools would send their gradu­
ates only to a particular junior high. These experts ad­
mitted that in many instances the question as to where a

Memorandum Decision



13b

boundary should be drawn is one of judgment as to which 
honest experts could disagree.

We believe that, under the Northcross case, supra, the 
question whether the zones are gerrymandered should be 
determined primarily by consideration of the utilization of 
buildings, proximity of pupils to the schools, and natural 
boundaries.

It would be useless to set out in this opinion the relevant 
facts with respect to utilization, proximity and natural 
boundaries as to each elementary school zone. (It should be 
noted here that, as to utilization, the best information we 
have is the capacity and enrollment of each school during 
the past school year, which, in view of voluntary transfers, 
may not be an accurate projection as to the coming year and 
future years.) Rather, we will discuss only those bound­
aries as to which there apepars to be gerrymandering.

The most recent figures show that South Jackson is over 
enrolled and that West Jackson is under capacity. The 
boundary between these unitary zones as approved by the 
Court places Negro pupils who live much closer to West 
Jackson (which has been a predominantly white school but 
has had 14 Negro pupils) in the zone of South Jackson 
(which has been an all Negro school). Defendants, at the 
hearing, proposed to redraw that line so as to partially 
correct this situation but their proposal does not com­
pletely correct it. We conclude that the south line of the 
West Jackson zone should extend eastwardly from Poplar 
along Main to Royal.

The most recent figures show that both Parkview (which 
has been a predominantly white school with only one Negro 
pupil) and Washington-Douglas (which has been an all 
Negro school) are under capacity. The boundary between 
these unitary zones as approved by the Court places Negro

Memorandum Decision



14b

pupils who live much closer to Parkview in the zone of 
Washington-Douglas. And while the proof shows that there 
is considerable new development in the eastern part of the 
Parkview zone, there is nothing to show that Parkview 
would be over capacity if its zone is extended westwardly to 
include these Negro pupils. We conclude that the zone of 
Parkview should be extended westwardly to include the 
area bounded by Chester on the south, Eoyal on the west 
and College on the north.

The most recent figures show that both Alexander (which 
has been a predominantly white school but has had 87 Ne­
gro pupils) and Lincoln (which has been an all Negro 
school) are under capacity. The boundary between these 
unitary zones as approved by the Court follows the I.C.R.R. 
and G. M. & 0. R.R. tracks southwesterly until it reaches 
Alice and then leaves these tracks and runs west on Alice 
to Royal and south on Royal to Preston. This means that 
there are Negro pupils who live much closer to Alexander 
but who must cross the railroad tracks to Lincoln. It is true 
that Lincoln has been somewhat more under capacity than 
Alexander. However, if it should become necessary, de­
fendants could make an adjustment in the bounary between 
the Alexander zone and the Highland Park zone, the latter 
school also being under capacity. We conclude that the por­
tion of the Lincoln zone bounded by the railroad tracks on 
the east, Alice on the north, Royal on the west and Preston 
on the south should be included in the Alexander zone.

There are three junior high schools in Jackson. Tigrett 
and Jackson have been all white schools and Merry has 
been all Negro. Tigrett is located in the western section, 
Merry is located in the central section and Jackson is lo­
cated in the eastern section. The zones proposed by the 
defendants would, generally, allocate the western section

Memorandum Decision



15b

to Tigrett, the central section to Merry, and the eastern 
section to Jackson. The boundaries follow major streets or 
highways and railroads. According to the school population 
maps, there are a considerable number of Negro pupils in 
the southern part of the Tigrett zone, a considerable num­
ber of white pupils in the middle and northern parts of 
the Merry zone, and a considerable number of Negro pu­
pils in the southern part of the Jackson zone. The location 
of the three schools in an approximate east-west line makes 
it inevitable that the three zones divide the city in three 
parts from north to south. While it appears that proximity 
of pupils and natural boundaries are not as important in 
zoning for junior highs as in zoning for elementary schools, 
it does not appear that Negro pupils will be discriminated 
against. The only real alternative offered by plaintiffs is 
to adopt a “ feeder” syste mwhereby certain elementary 
schools would “ feed” pupils to a particular junior high, but 
there is no constitutional requirement that this particular 
system be adopted. We conclude that the proposed junior 
high school zones proposed by defendants do not amount 
to unconstitutional gerrymandering.

Under the plan for gradual desegregation approved by 
the Court in the summer of 1963, the first three grades 
were desegregated in the school year 1963-4, the next three 
grades i nl964-5, and thereafter two additional grades are 
to be desegregated each succeeding year. Under this plan, 
the 7th and 8th grades only would be desegregated in the 
coming year, 1965-6. Plaintiffs moved the Court to amend 
the plan to require all remaining grades be desegregated in 
1965-6, and the Court has allowed them to reopen this ques­
tion. They contend that “ all deliberate speed” requires this 
action.

Memorandum Decision



16b

In view of the undisputed proof that no substantial ad­
ministrative problems have so far been met, we conclude 
plaintiffs are entitled to some acceleration in the plan. 
More particularly, we conclude that all of the junior high 
grades (7th, 8th and 9th) should be desegregated in the 
year 1965-6; and we further conclude that all of the senior 
high grades (10th, 11th and 12th) should be desegregated 
in 1966-7.

Plaintiffs also moved the Court to order desegregation of 
teachers, and the administrative and supporting personnel. 
At an earlier stage of this proceeding, we held that plain­
tiffs are entitled to assert a claim for desegregation of 
teachers and principals, but that they are not entitled to 
assert a claim for desegregation of other personnel. We 
took under advisement the claim with respect to teachers 
and principals pending implementation of the plan, and we 
ordered struck from the complaint he claim with respect 
to other personnel. (221 F. Supp. 968, 972) This deter­
mination was made on the basis of the clear holding to 
that effect by our Court of Appeals in Mapp v. Board of 
Education of Chattanooga, 319 F.2d 571, 576 (6th Cir. 
1963). Accordingly, we have for consideration only the 
claim for desegregation of teachers and principals.

We first must ascertain the guidelines for determining 
whether plaintiffs are entitled to desegregation of faculty 
and principals. We must do this from a very limited num­
ber of cases which deal with the problem. As stated, our 
Court of Appeals held that plaintiffs in such a case as this 
are entitled to press this claim as part of their claim “to 
an education free of any consideration of race.” It also 
held that they have no right to assert any constitutional 
claims the teachers and principals may have. {Mapp,

Memorandum Decision



17b

supra.) However, the Court was not specific, saying in 
part (319 F.2d 571, 576):

“We agree that the teachers, principals and others are 
not within the class represented by plaintiffs and that 
plaintiffs cannot assert or ask protection of some con­
stitutional rights of the teachers and others, not par­
ties to the cause. We, however, read the attack upon 
the assignment of teachers by race not as seeking to 
protect rights of such teachers, but as a claim that 
continued assigning of teaching personnel on a racial 
basis impairs the students’ rights to an education free 
from any consideration of race.
#  #  #  #  #

“ . . • [W ]e think it appropriate that the stricken allega­
tions of the complaint, insofar as they relate to the as­
signment of teachers and principals, be restored to 
the pleading and that decision of the legal question 
presented await developments in the progress of the 
plan approved. Nothing we have said need call for 
any present taking of testimony on the subject of 
teacher and principal assignement. Within his discre­
tion, the District Judge may determine when, if at 
all, it becomes necessary to give consideration to the 
question under discussion. We affirm, however, the or­
der granting the motion to strike, to the extent that 
it applies to allegations relating to the hiring and 
assignment of school personnel other than teachers 
and principals.”

In Augustus v. Board of Public Instruction of Escambia 
County, Florida, 306 F.2d 862 (5th Cir. 1962) the Court 
held, as Mapp later held, that it was improper to strike this

Memorandum Decision



18b

claim for relief before the trial on the merits and indicated 
that at snch hearing relief could be granted. In Board of 
Public Instruction of Duval County, Florida v. Braxton, 
324 F.2d 616 (5th Cir. 1964) the Court held (one judge 
dissenting) that the trial court was within its proper dis­
cretion in ordering a desegregation of faculty in a decree 
providing for desegregation of pupils. In Bradley v. School 
Board of Richmond, Virginia, 345 F.2d 310 (4th Cir. 1965) 
the Court held that the trial court was within its discretion 
in denying an application for desegregation of teachers. It 
pointed out that this issue had been ignored at the trial, 
and said that the granting of such relief should depend 
upon a balancing of the need therefor to protect the con­
stitutional rights of the pupils against the effect it would 
have on the administration of the schools and the efficiency 
of the staffs. Two judges, dissenting on this question, said 
at p. 324:

“ The composition of the faculty as well as the composi­
tion of its student body determines the character of 
a school. Indeed, as long as there is a strict separa­
tion of the races in faculties, schools will remain 
‘white’ and ‘Negro,’ making student desegregation 
more difficult. The standing of the plaintiffs to raise 
the issue of faculty desegregation is conceded. The 
question of faculty desegregation was squarely raised 
in the District Court and should be heard. It should 
not remain in limbo indefinitely. After a hearing 
there is a limited discretion as to when and how to 
enforce the plaintiffs’ rights in respect to this, as 
there is in respect to other issues, since administra­
tive considerations are involved; but the matter should 
be inquired into promptly. There is no legal reason

Memorandum Decision



19b

why desegregation of faculties and student bodies may 
not proceed simultaneously.”

In one District Court case in Tennessee, Sloan v. Tenth 
School District of Wilson County, Tennessee, 9 Race Rel. 
L. Rep. 1306 (M.D. Tenn. 1964), the Court ordered deseg­
regation of faculties, and we understand that this has 
been done by consent order in several other cases involv­
ing school districts of this state.

We gleam from the foregoing cases that this application 
for desegregation of faculties and principals largely ad­
dresses itself to the discretion of the trial court and that 
in exercising its discretion the Court should consider the 
current need for this action in effecting abolition of com­
pulsory segregation of pupils as against any problems in­
volved in taking this step.

The defendants contend that there is no current need 
to desegregate the faculties and principals and that the 
teachers might be seriously adverse to such action. Plain­
tiffs offered some testimony from Negro parents that 
Negro pupils are reluctant to attend schools in which all 
of the teachers are white, some because they are afraid 
that the white teachers would require higher performance 
and perhaps others because they are afraid that they 
would not receive fair treatment. These witnesses gave 
no specific examples. It should be noted, however, that the 
intervening plaintiffs, at least, are seeking to attend schools 
with all white faculties. Plaintiffs’ education experts largely 
testified in terms of the educational desirability of mixed 
faculties, but we do not believe that this is a constitutional 
consideration. Plaintiffs’ sociology expert testified that in 
his investigation of the question at Nashville he had not 
turned up much evidence that fear of going to school to

Memorandum Decision



20b

all white teachers is a deterrent, but he also testified that 
having all Negro teachers stigmatizes a school as a “Ne­
gro” school which tends to keep it segregated.

We do not believe that the proof of the plaintiffs is suf­
ficiently strong to entitle them at this time to an order re­
quiring integregation of the faculties and principals. At the 
same time we do not believe that they are, on this proof, en­
titled to some relief, and this Court in its discretion may 
fashion the remedy which it believes to be consistent with 
the need shown. It is obvious that the defendants have fol­
lowed a policy of assigning white teachers, simply because 
of their race, only to schools in which the pupils are all or 
predominantly white, and of assigning Negro teachers, 
simply because of their race, only to schools in which the 
pupils are all Negroes. We believe that this policy should 
be rescinded, and that a white teacher should not be pro­
hibited, because of his or her race, from teaching in a 
school in which the pupils are all or predominantly Negro, 
and that a Negro teacher should not be prohibited, because 
of his or her race, from teaching in a school in which the 
pupils are all or predominantly white. This would mean 
that white and Negro teachers, who so desire, would not 
be barred, because of their race, from teaching pupils all 
or a majority of whom were of the other race. But it also 
wrnuld mean that none would be forced to do so and would 
mean that, of course, all other usual factors could be con­
sidered in determining the assignment of teachers.

Plaintiffs next contend that they are entitled to an order 
prohibiting all segregation in curricular and extra-cur­
ricular activities of desegregated grades. As to curricular 
activities, we were under the impression that such a provi­
sion had been included in the decree heretofore entered,

Memorandum Decision



21b

blit for some reason it was omitted. In any event, plain­
tiffs are entitled to an order providing that, with respect 
to desegregated grades, segregation is prohibited as to all 
school facilities, and as to all curricular activities, includ­
ing athletics.

The question regarding extra-curricular activities is more 
difficult. Certainly, as to school-sponsored activities, there 
must be no discrimination based on race by the defendants, 
and plaintiffs are entitled to an order to that effect. How­
ever, we must deal in particular with an incident which has 
occurred which plaintiffs contend amounted to discrimina­
tion in a school-sponsored activity. It seems that the pri­
vate organization which operates the Jackson Symphony 
Orchestra invited the pupils in certain grades in those ele­
mentary schools in which the pupils are all or predomi­
nantly white to attend a concert during school hours. The 
pupils in the same grades in elementary schools in which 
the pupils are all Negroes were not invited. Defendants 
accepted this invitation, and the invited pupils, including 
those Negro pupils who were in those grades, attended the 
concert. The proof showed without question that defend­
ants were not motivated by racial considerations in accept­
ing this invitation. "We believe that this occurrence does 
not constitute unconstitutional discrimination. On the con­
trary, we believe that defendants may in their discretion 
allow pupils to attend an outside activity, whether it be a 
concert, a speaker or whatever, so long as defendants are 
not motivated by racial considerations.

Plaintiffs also seek an order prohibiting segregation of 
teacher in-service training. Although the proof is not com­
pletely clear, it appears that the only such segregation that 
remains results from the fact that the white teachers and

Memorandum Decision



22b

the Negro teachers are members of separate professional 
organizations. It appears without dispute that defendants 
do not control the policies of these organizations. In any 
event, as heretofore indicated, the Mapp case, supra, holds 
that plaintiffs have no standing to assert any constitu­
tional claims that the teachers may have and may assert a 
claim for teacher desegregation only in support of their 
constitutional right, as pupils, to an abolition of discrimina­
tion based on race. The assertion by plaintiffs that what 
remains of segregation in teacher in-service training has 
an effect on their right as pupils is, on the proof in this 
case, extremely tenuous. We deny this application for 
relief.

Plaintiffs last contend that defendants should be re­
quired to pay their attorneys’ fees and to pay expenses in­
curred by plaintiffs in the employment of certain expert 
witnesses.

With respect to attorneys’ fees, it is incumbent on plain­
tiffs first to prove a legal liability on their part to pay 
such fees, that is, plaintiffs must prove an express or im­
plied contract to pay either a fee specific in amount or a 
reasonable fee. 20 C.J.S., Costs, Sec. 218, p. 453 et seq. 
The proof here shows that when some of intervening plain­
tiffs were denied the opportunity to attend the schools to 
which they had applied, they called on these attorneys to 
represent them. The attorneys, after interviewing these 
plaintiffs, forthwith filed the first motion for additional 
relief and thereafter handled this litigation. WTiile there 
was some proof that the attorneys might be able to look 
elsewhere for payment in the event intervening plaintiffs 
did not pay them, there was certainly an implied contract 
between these plaintiffs and the attorneys that a reasonable 
fee would be paid by them.

Memorandum Decision



23b

In Bell v. School Board of Powhatan County, Virginia, 
321 F.2d 494, 500 (4th Cir. 1963), a school desegregation 
case, the court held that the trial court had abused its dis­
cretion in refusing to allow plaintiffs to recover attorneys’ 
fees. In that case the school authorities had been guilty of 
“ . . . a long continued pattern of evasion and obstruc­
tion. . . . ” In a later school segregation case, the Fourth 
Circuit affirmed the trial court in its denial of attorneys’ 
fees, but recognized that a fee should be allowed “ . . . 
when it is found that the bringing of an action should have 
been unnecessary and was compelled by the school board’s 
unreasonable, obdurate obstinacy.” Bradley v. School 
Board of the City of Richmond, 345 F.2d 310 (4th Cir. 
1965).

In this case during the summer of 1964 when intervening 
plaintiffs applied to attend schools outside of their zones, 
defendants were, as a matter of course, allowing both white 
and Negro pupils to do so if they would be in a racial 
majority. It appears that the applications of plaintiffs 
were denied by the superintendent because they would be 
in a minority in the schools they sought to attend. The 
action by the superintendent in denying their applications 
was in clear violation of the decree of this court, and it 
was in clear violation of the constitutional rights of these 
plaintiffs as had been expressly held by the Supreme Court 
in Goss, et al. v. Board of Education of the City Knox­
ville, 373 U.S. 683 (1963), all of which defendants must 
have, or certainly should have, known. For this reason, 
plaintiffs are entitled to recover an attorneys’ fee for their 
handling of this aspect of the litigation. It is no answer 
to say that these plaintiffs did not seek redress from the 
action of the superintendent by appealing to the defend­

Memorandum Decision



24b

ant Board members. Defendants do not even contend that 
the superintendent was not acting with authority; it ap­
pears that he was following an adopted plan or policy. 
Moreover, the proof shows that plaintiffs were not advised 
that their applications had been denied until the Saturday 
before the Monday that the school session was to begin.

On the other hand, with respect to the other issues 
presented by these motions for additional relief, it does not 
appear that defendants have violated any order of this 
court or have in any wise acted improperly. We therefore 
award plaintiffs and attorneys fee of $1,000.00 as costs in 
this cause.

As stated, plaintiffs also seek to recover as costs the 
fees and expenses of their expert witnesses. However, 
these experts did not testify on any issue as to which this 
court has found defendants in violation of its decree or as 
to any issue as to which the court has found that defend­
ants have acted in disregard of the constitutional rights 
of these plaintiffs. Moreover, these experts in large meas­
ure gave educational or sociological opinions of no particu­
lar constitutional relevance. We therefore deny this ap­
plication.

In closing this opinion, this court would like to point out 
that there appears to be little communication between the 
school authorities and the interested Negro leadership in 
the community. There certainly should be. As desegrega­
tion progresses under this plan, there are bound to be 
points of difference between the Negro citizens and the 
school authorities as to rights of the Negroes and the 
obligations of the authorities. These differences should 
first be the subject of a conference in an effort to compose 
them amicably. They should be brought to court only when

Memorandum Decision



25b

the differences cannot so be resolved and are of substan­
tial significance.

An order will be prepared for entry by the parties con­
sistent with the rulings in this opinion.

E nter this 30th day of July, 1965.

/ s /  Bailey B rown 
United States District Judge

A  True Copy.

A ttest :

W. Lloyd J ohnson, Clerk.

By A. H. Sawyer, DC

Memorandum Decision



26b

(filed August 11, 1965)

[Caption Omitted]

This cause came on before the Honorable Bailey Brown, 
District Judge, at a pre-trial conference held May 26, 1965 
in the Court’s Chambers, whereupon the Court did, upon 
the statement of facts by defendants’ counsel to the Court, 
declare and decide that the manner of application by the 
defendants of the transfer provisions is unconstitutional 
unless the defendants allow a transfer of a student from a 
school in which said student be in the racial majority to a 
school, outside of his zone, in which such student would 
be in a racial minority on the same basis that transfers were 
allowed to a student from a school in which such student 
is in the racial minority to a school, outside his zone, in 
which said student would be in a racial majority. The 
Court further did find and determine that the remaining 
issues to be heard by the Court at a later hearing would be 
as follows:

1. Whether or not the elementary school unitary zones 
previously approved by the Court, as subsequently amended 
by defendants, amounted to unconstitutional gerrymander­
ing.

2. Whether or not the junior high school unitary zones 
proposed by defendants amounted to unconstitutional gerry­
mandering.

3. Whether or not the Court should order a desegrega­
tion of faculty and administrative and supporting person­
nel, including faculty in-service training, in the City Schools 
of Jackson.

Order of the United States District Court for the
Western District of Tennessee



Order

4. Whether or not the Court should order an accelera­
tion of the plan of desegregation heretofore approved by 
the Court.

5. Whether or not the defendants had discriminated 
against the plaintiffs in extra-curricular activities.

6. Whether or not plaintiffs should be awarded an at­
torneys’ fee in this proceeding.

This cause thereupon came on to be heard on the 18th day 
of June, 1965, and upon a former day of the term, before 
the Honorable Bailey Brown, District Judge, sitting with­
out intervention of a jury, upon the Motion for Further 
Relief and to add parties as additional and/or intervening 
plaintiffs, filed by the plaintiffs on 4 September 1964 against 
the defendants, Board of Commissioners of the City of 
Jackson, Tennessee, its board members and C. J. Huckaba, 
Superintendent of City Schools, a replication filed by said 
defendants to said motion on or about 11 September 1964, 
the pretrial order entered by the Court on 28 September 
1964 allowing the intervention of additional parties plain­
tiff and granting and denying certain other preliminary re­
lief having to do with preparation for trial of said motion, 
the supplemental replication to said motion of September 
4, 1964 filed by said defendants on or about 12 November 
1964, a petition filed by said defendants on or about 13 
November 1964 seeking approval of proposed junior high 
school unitary zones filed concurrently therewith and also 
seeking consolidation of the hearing on said petition with 
the hearing upon plaintiffs’ said motion for further relief, 
plaintiffs’ specifications of objections to said junior high 
school unitary zones filed by defendants and their agree­
ment to consolidation of said hearings, the additional mo-



28b

Order

tion for further relief against said defendants filed by the 
plaintiffs on or about 19 April 1965, the replication of said 
defendants to said additional motion for further relief of 
the plaintiffs, filed on or about 18 May 1965, and the ex­
hibits filed by the respective parties to the foregoing plead­
ings, the evidence introduced by the parties in open court, 
arguments of counsel and the entire record upon the issues 
prescribed by the Court at the May 26, 1965 pre-trial con­
ference, from all of which the Court finds and holds that 
the plaintiffs are entitled to certain relief upon some of 
the issues, but that the relief sought by plaintiffs should 
be denied on other issues, as hereinafter provided, and as 
more fully stated in the Memorandum Decision filed by the 
Court on 30 July 1965, which is hereby made a part of the 
record and is adopted as the Fndings of Fact and the 
Conclusions of Law made by the Court upon the various 
pleadings set forth hereinabove.

I x  i s , t h e r e f o r e , o r d e r e d , a d j u d g e d , d e c r e e d  a n d  e n j o i n e d  

by the Court as follows:

1. The assignment and transfer plan or policy in the 
City of Jackson, Tennessee school system as actually car­
ried out by said defendants deprives plaintiffs of their con­
stitutional rights, and must be amended in the following 
particulars:

(a) I f  said defendants continue their policy of allowing 
white and Negro pupils, as a matter of course, to attend 
schools outside of their unitary zones where they will be in 
a racial majority, they must, beginning with the 1965-66 
school year, also allow white and Negro pupils to the same 
extent and under the same terms to attend schools, as a mat­
ter of course, outside of their unitary zones where they will 
be in a racial minority. In addition, those Negro pupils



29b

Order

who have heretofore applied for and been denied the right 
to attend predominantly white schools outside their unitary 
zones must be admitted to such schools, at least in the 
school year 1965-66, if they so desire.

(b) In allowing pupils to attend schools outside their 
unitary zones irrespective of whether they will be in a racial 
majority or minority, each pupil must be required each 
year to register in the school of his unitary zone and apply 
for a transfer, and shall not be permitted to register directly 
in the school or schools outside of his or her zone.

(c) All pupils who were not in the school system in 1962- 
63 shall not have the right, as do pupils who were attend­
ing during that year, to continue until graduation in a 
school outside their zone. All such pupils shall be required 
each year to register in the school of their respective uni­
tary zones and apply for any transfer, if desired.

2. The unitary zones established by defendants and 
heretofore approved by this Court for the elementary 
schools of the City of Jackson, as subsequently amended 
by defendants, in some areas appear to be gerrymandered 
and will therefore be revised by defendants in the following 
particulars:

(a) The south line of the West Jackson School zone shall 
extend eastwardly from Poplar along Main to Royal.

(b) The zone of Parkview School shall be extended west- 
wardly to include the area bounded by Chester on the 
south, Royal on the west and College on the north.

(c) That portion of the Lincoln School zone bounded by 
the railroad tracks on the east, Alice on the north, Royal 
on the west and Preston on the south shall be included in 
the Alexander School Zone.



30b

Order

3. The proposed junior high school zones proposed by 
defendants do not amount to unconstitutional gerrymander­
ing and are approved by the Court.

4. Desegregation in the City of Jackson School System 
will be accelerated as follows: All of the junior high grades 
(7th, 8th and 9th) shall be desegregated at the beginning of 
the school year 1965-66; and all of the senior high grades 
(10th, 11th and 12th) shall be desegregated at the beginning 
of the school year 1966-67 so that said school system shall 
be totally desegregated at the beginning of said latter year.

5. The application of plaintiffs for an order requiring 
integration of faculty is at this time denied. However, the 
policy of defendants of assigning white teachers only to 
schools in which the pupils are all or predominantly white 
and Negro teachers only to schools in which the pupils are 
all Negro is by this order rescinded to the extent that white 
teachers, who so desire, will not be barred from teaching 
in schools in which the pupils are all or predominantly 
Negro, and Negro teachers, who so desire, will not be barred 
from teaching in schools in which the pupils are all or pre­
dominantly white.

To implement this change in policy, defendants must 
forthwith, as to substitute teachers, and each year beginning 
with the year 1966-67, as to all teachers, publicize it and 
obtain from each teacher an indication of willingness or an 
indication of objection to teaching in a school in which the 
pupils are all or predominantly of the other race. All 
teachers who indicate such a willingness will be assigned to 
schools without consideration of the race of the teacher or 
the pupils, but all other usual factors may be considered 
in assigning teachers. Nothing in this order, however, will



31b

Order

be construed as requiring the assignment of an objecting 
teacher to a school in which the pupils are all or predomi­
nantly of the other race or will be construed as requiring a 
refusal to employ or a dismissal of a teacher who objects 
to teaching in such a school. This change in policy will be 
effective as to substitute teachers during the remainder of 
the school year 1965-66 and as to all teachers beginning with 
the school year 1966-67.

6. The Court finds that its previous Judgment entered 
in this cause failed to include an order requiring defendants 
to eliminate all racial discrimination and segregation in 
curricular and school sponsored extra-curricular activities 
in the City of Jackson School System and the Court so 
orders. However, the Court has not found the defendants 
guilty of any unconstitutional discrimination in connection 
herewith.

7. The application of plaintiffs for an order requiring 
desegregation of administrative and supporting personnel 
is denied.

8. As to teacher in-service training and professional 
activities, plaintiffs are denied relief.

9. Plaintiffs are entitled to recover an attorneys’ fee for 
the handling of that aspect of the litigation pertaining to 
the application of the intervening plaintiffs in the summer 
of 1964 to transfer to schools outside of their zones and 
the defendants’ denial of said application in clear violation 
of the constitutional rights of these plaintiffs. In this con­
nection, the Court finds that these services consisted of in­
terviewing of plaintiffs at Jackson on the day before school



32b

Order

was to begin, preparation and filing of motion, attendance 
by the attorneys at two pre-trial conferences at Memphis, 
and preparation of order for entry, and that, therefore, a 
fee of $1,000.00 for said attorneys would be fair and reason­
able and is awarded as costs in this action.

10. The application of plaintiffs to recover as costs the 
fees and expenses of their expert witnesses is denied.

11. Jurisdiction of the case is retained by the Court 
pending full implementation of desegregation in the City 
School System of Jackson, Tennessee, and either party may 
apply.

E nter this 11th day of August, 1965.

B ailey B rown
United States District Judge

A  True Copy.

A ttest :

W. Lloyd J ohnson, Clerk.

By A. H. Sawyer, DC



33b

Nos. 17,118 and 17,119

Opinion of the United States Court of Appeals
For the Sixth Circuit

B benda K. Moneoe, et al.,

v.
Plaintiffs-Appellants,

B oaed of Commissionebs, City of Jackson, T ennessee, 
et ah, and County B oaed op E ducation, Madison 
County, Tennessee, et al.,

Defendants-Appellees.

APPEAL FBOM THE U. S. DISTBICT COUBT FOE THE 

WESTEBN DISTBICT OF TENNESSEE

Decided July 21, 1967

B efore: O’Sullivan, P hillips and Peck, Circuit Judges.
O’Sullivan, Circuit Judge. In 1963 a suit was filed by 

Brenda K. Monroe and others, Negro children and their 
parents, to bring about the desegregation of the public 
schools of the City of Jackson, and of Madison County, 
Tennessee.1

The District Court required the school authorities to 
submit plans to accomplish desegregation and ultimately 
granted the relief sought by approving parts of a submitted 
plan and ordering other steps to be taken. Separate opin­

1 The City of Jackson is located in Madison County and the respective 
school authorities are the Board of Commissioners of the City of Jackson 
and the County Board of Education of Madison County.



34b

ions were written, one involving the City of Jackson 
schools, reported as Monroe v. Board of Commissioners 
of the City of Jackson, Tennessee, et at., 221 F. Supp. 968 
(W.D. Tenn. E.D. 1963) and the other relating to Madison 
County schools, reported in Monroe v. Board of Commis­
sioners, etc., et al, 229 F. Supp. 580 (W.D. Tenn. E.D. 
1964). Appeals to this Court from these cases were dis­
missed by agreement. Obedient to the above decisions, all 
grades of the schools involved have been desegregated.

The litigation with which we now deal arises from 
Motions for Further Belief filed in the District Court by 
plaintiffs. By these motions, plaintiffs sought to accom­
plish greater integration of the school children, desegrega­
tion of the teaching staffs, and the enjoining of described 
practices of the school authorities which were alleged to 
be violative of the District Judge’s original decrees and 
contrary to new developments in the law. The District 
Judge, again, dealt separately with the city and the county 
schools in disposing of the Motions for Further Belief. 
His decision as to the city schools is reported in Monroe 
v. Board of Commissioners, City of Jackson, 244 F. Supp. 
3o3 (W.D. Tenn. E.D. July 30, 1965) and as to the County 
Schools in Monroe v. Board of Education, Madison County,
Tennessee, et al, ------  F. Supp. — -  (W.D. Tenn. E.D.
August 2, 1965). These are the cases before us on this 
appeal; the plaintiffs are the appellants. These opinions, 
with the earlier ones reported at 221 F. Supp. 968 and 229 
F. Supp. 580, supra, set out the facts and we will restate 
them only where needed to discuss the present contentions 
of the plaintiffs-appellants.

Opinion of the United States Court of Appeals
For the Sixth Circuit



35b

1) Compulsory integration.

Appellants argue that the courts must now, by recon­
sidering the implications of the Brown v. Board of Educa­
tion decisions in 347 U.S. 483 (1954) and 349 U.S. 294 
(1955), and upon their own evaluation of the commands of 
the Fourteenth Amendment, require school authorities to 
take affirmative steps to eradicate that racial imbalance 
in their schools which is the product of the residential 
pattern of the Negro and white neighborhoods. The Dis­
trict Judge’s opinion discusses pertinent authorities and 
concludes that the Fourteenth Amendment did not com­
mand compulsory integration of all of the schools regard­
less of an honestly composed unitary neighborhood system 
and a freedom of choice plan. We agree with his conclu­
sion. We have so recently expressed our like view in Tina 
Deal, et al. v. The Cincinnati Board of Education, 369 
F(2) 55 (CA 6, 1966), petition for cert, filed, 35 LW  3394 
(U.S. May 5, 1967) (No. 1358), that we will not here 
repeat Chief Judge Weick’s careful exposition of the rele­
vant law of this and other circuits. He concluded “We 
read Brown as prohibiting only enforced segregation.” 
369 F(2) at 60. We are at once aware that we were there 
dealing with the Cincinnati schools which had been de­
segregated long before Brown, whereas we consider here 
Tennessee schools desegregated only after and in obedience 
to Brown. We are not persuaded, however, that we should 
devise a mathematical rule that will impose a different 
and more stringent duty upon states which, prior to Brown, 
maintained a de jure biracial school system, than upon 
those in which the racial imbalance in its schools has 
come about from so-called de facto segregation—this to

Opinion of the United States Court of Appeals
For the Sixth Circuit



36b

be true even though the current problem be the same in 
each state.

We are asked to follow United States v. Jefferson County 
Board of Education, 372 F(2) 836 (CA 5,1966), which seems 
to hold that the pre-Brown biracial states must obey a dif­
ferent rule than those which desegregated earlier or never 
did segregate. This decision decrees a dramatic writ 
calling for mandatory and immediate integration. In so 
doing, it distinguished Bell v. School City of Gary, Indi­
ana, 324 F(2) 209 (CA 7, 1963), cert. den. 377 U.S. 924, 
on the ground that no pre-Brown de jure segregation had 
existed in the City of Gary, Indiana. 372 F (2) at 873. 
It would probably find like distinction in our Tina Deal 
decision because of Cincinnati’s long ago desegregation 
of its schools. We, however, have applied the rule of 
Tina Deal to the schools of Tennessee. In Mapp v. Board 
of Education, 373 F (2) 75, 78 (CA 6, 1967) Judge Weick 
said,

To the extent that plaintiffs’ contention is based on the 
assumption that the School Board is under a constitu­
tional duty to balance the races in the school system in 
conformity with some mathematical formula, it is in 
conflict with our recent decision in Deal v. Cincinnati 
Board of Education, 369 F(2) 55 (6th Cir. 1966).”

However ugly and evil the biracial school systems appear 
in contemporary thinking, they were, as Jefferson, supra, 
concedes, de jure and were once found lawful in Plessy v. 
Ferguson, 163 U.S. 537 (1896), and such was the law for 58 
years thereafter. To apply a disparate rule because these 
early systems are now forbidden by Brown would be in the

Opinion of the United States Court of Appeals
For the Sixth Circuit



37b

nature of imposing a judicial Bill of Attainder. Such pro­
scriptions are forbidden to the legislatures of the states and 
the nation—U.S. Const. Art. I, Section 9, Clause 3 and Sec­
tion 10, Clause 1. Neither, in our view, would such decrees 
comport with our current views of equal treatment before 
the law.

This is not to say that Tennessee school authorities can 
dishonestly construct or deliberately contrive a system for 
the purpose of perpetuating a “maximum amount” of its 
pre-Brown segregation. Northcross v. Board of Education 
of City of Memphis, 33 F(2) 661, 664 (CA 6, 1964). But to 
the extent that United States v. ,Jefferson County Board of 
Education, and the decisions reviewed therein, are factually 
analogous and express a rule of law contrary to our view 
herein and in Deal, we respectfully decline to follow them.

2) Gerrymandering.

Appellants assert that while giving surface obedience to 
the establishment of a unitary zoning system and freedom 
of choice, the school officials of the City of Jackson had been 
guilty of “gerrymandering” in order “ to preserve a maxi­
mum amount of segregation.” Were this true, it would be 
violative of the law. Northcross v. Board of Education of 
City of Memphis, 302 F(2) 818, 823, (CA 6,1962), cert. den. 
370 U.S. 944, and Northcross v. Board of Education of City 
of Memphis, 333 F(2) 661, 664 (CA 6, 1964). The District 
Judge in the instant matter did hold that as to some boun­
dary lines “ there appears to be gerrymandering*.” Monroe 
v. Board of Commissioners, City of Jackson, supra, 244 F. 
Supp. at 361. As to these instances, he ordered changes in 
the school zone lines. Id. at 361, 362. But, as to the junior 
high schools, he concluded,

Opinion of the United States Court of Appeals
For the Sixth Circuit



38b

“that the proposed junior high school zones proposed by- 
defendants do not amount to gerrymandering.” 244 F. 
Supp. at 362.

Without making our own recitation of the relevant evidence, 
we express our agreement with the District Judge.

3) Faculty desegregation.

In the accomplishment of desegregation in the involved 
schools, there remain some that are attended only by Negro 
and others only by white children. The teaching staff con­
forms substantially to this pattern—all Negro teachers in 
the all Negro schools and all white teachers in the all white 
schools. Little attention was paid to the teaching staff in 
the early desegregation cases. Brown v. Board of Education, 
supra, did not speak on it, nor did the early relevant deci­
sions from this circuit. In Mapp v. Board of Education of 
Chattanooga, 319 F(2) 571, 576 (CA 6, 1963), however, we 
ordered restored to the complaint there involved allegations 
and prayers for relief relating to assignment of teachers 
and principals, but ordered also that “decision of the legal 
question presented await development of the progress of 
the plan approved.” 319 F(2) at 576. And we further con­
cluded that “within his discretion, the District Judge may 
determine -when, if at all, it becomes necessary to give con­
sideration to the question. . . . ” Ibid.

This leisurely postponement of consideration of faculty 
desegregation appealed to the Fourth Circuit, when in 
Bradley v. School Board of City of Richmond, Virginia, 345 
F(2) 310, 320, 321 (CA 4, 1965), it said:

“ The possible relation of a reassignment of teachers to 
protection of the constitutional rights of pupils need

Opinion of the United States Court of Appeals
For the Sixth Circuit



39b

not be determined when it is speculative. When all 
direct discrimination in the assignment of pupils has 
been eliminated, assignment of teachers may be ex­
pected to follow the racial patterns established in the 
schools. An earlier judicial requirement of general re­
assignment of all teaching and administrative person­
nel need not be considered until the possible detrimen­
tal effects of such an order upon the administration of 
the schools and the efficiency of their staffs can be ap­
praised along with the need for such an order in aid 
of protection of the constitutional rights of pupils.”

But the Supreme Court declared this would not do, and in 
Bradley v. School Board, 382 U.S. 103 (1965), remanded the 
case to require the Richmond School Board to proceed with 
study and resolution of the faculty integration question, 
stating,

“ There is no merit to the suggestion that the relation 
between faculty allocation on an alleged racial basis and 
the adequacy of the desegration plans is entirely spec­
ulative.” 382 U.S. at 105.

The Bradley opinion was followed by Rogers v. Paul, 
et al, 382 U.S. 198 (1965); once again the Supreme Court 
remanded the cause for consideration of the faculty desegre­
gation problem.

The District Judge in the matter now before us did hear 
some evidence on the question of faculty desegregation and 
concluded,

“We do not believe that the proof of the plaintiffs is suf­
ficiently strong to entitle them to an order requiring

Opinion of the United States Court of Appeals
For the Sixth Circuit



40b

integration of the faculties and principals.”  233 F. 
Supp. at 364.

He did, however, attack a then current policy of the school 
authorities whereby white teachers and Negro teachers, 
“ simply because of their race,” were respectively assigned 
only to schools whose pupils were all or predominantly of 
that teacher’s race. The order implementing his decision 
contained the following:

“ The application of plaintiffs for an order requiring in­
tegration of faculty is at this time denied. However, 
the policy of defendants of assigning white teachers 
only to schools in which the pupils are all or predomi­
nantly white and Negro teachers only to schools in 
which the pupils are all Negro is by this order re­
scinded to the extent that white teachers, who so desire, 
will not be barred from teaching in schools in which 
the pupils are all or predominantly Negro, and Negro 
teachers, who so desire, will not be barred from teach­
ing in schools in which the pupils are all or predomi­
nantly white.

To implement this change in policy, defendants must 
forthwith, as to substitute teachers, and each year be­
ginning with the year 1966-67, as to all teachers, pub­
licize it and obtain from each teacher an indication of 
willingness or an indication of objection to teaching in 
a school in which the pupils are all or predominantly 
of the other race. All teachers who indicate such a will­
ingness will be assigned to schools without considera­
tion of the race of the teacher or the pupils, but all 
other usual factors may be considered in assigning

Opinion of the United States Court of Appeals
For the Sixth Circuit



41b

teachers. Nothing in this order, however, will be con­
strued as requiring the assignment of an objecting 
teacher to a school in which the pupils are all or pre­
dominantly of the other race or will be construed as 
requiring a refusal to employ or a dismissal of a teach­
er who objects to teaching in such a school. This change 
in policy will be effective as to substitute teachers dur­
ing the remainder of the school year 1965-66 and as to 
all teachers beginning with the school year 1966-67.”

We note that this order was handed down before Bradley 
v. School Bd., supra, and we are constrained to hold that it 
does not commit or require the school authorities to adopt 
an adequate program of faculty desegregation which will 
pass muster under the implied command of the Bradley 
case. Whatever Bradley’s clear language, we cannot read it 
otherwise than as forbidding laissez faire handling of 
faculty desegregation. It implies that the accomplishment 
of that goal cannot be left to the free choice of the teachers 
and that the Board must exercise its authority in making 
faculty assignments so as to assist in bringing to fruition 
the predicted benefits of school desegregation.

No Supreme Court decision, however, has as yet pro­
vided a blue print that will achieve faculty desegregation. 
The United States Office of Education has indicated that, 
in some affirmative way, school boards must act to correct 
past discriminatory practices in the assignment of teach­
ers.2 But its recommendations do not have the force of

2 “ §181.13 Faculty and Staff
(a) Desegregation of Staff. The racial composition of the professional 

staff of a school system, and of the schools in the system, must be con­
sidered in determining whether students are subjected to discrimination 
in educational programs. Each school system is responsible for correcting

Opinion of the United States Court of Appeals
For the Sixth Circuit



42b

law; neither does it provide clear guidelines to make easy 
the job of school boards in dealing with this problem. It 
will be difficult to eliminate the forcing of people into 
places and positions because of race and at the same time 
compulsorily assign a school teacher on the basis of his 
or her race.

It is sufficient for us to say now that the formula an­
nounced by the District Judge, leaving the decision of 
integration of the faculties to the voluntary choice of the

Opinion of the United States Court of Appeals
For the Sixth Circuit

the effects of all past discriminatory practices in the assignment of teachers 
and other professional staff.

(b) New assignments. Race, color, or national origin may not be a 
factor in the hiring or assignment to schools or within schools of teachers 
and other professional staff, including student teachers and staff serving 
two or more schools, except to correct the effects of past discriminatory 
assignments.

#  *  #

(d) Past assignments. The pattern of assignment of teachers and other 
professional staff among the various schools of a system may not be such 
that schools are identifiable as intended for students of a particular race, 
color, or national origin, or such that teachers or other professional staff 
o f a particular race are concentrated in those schools where all, or the 
majority, o f the students are of that race. Each school system has a 
positive duty to make staff assignments and reassignments necessary to 
eliminate past discriminatory assignment patterns. Staff desegregation for 
the 1966-67 school year must include significant progress beyond what 
was accomplished for the 1965-66 school year in the desegregation of 
teachers assigned to schools on a regular full-time basis. Patterns of staff 
assignment to initiate staff desegregation might include, for example:
(1) Some desegregation of professional staff in each school in the system,
(2) the assignment of a significant portion of the professional staff of 
each race to particular schools in the system where their race is a minority 
and where special staff training programs are established to help with 
the process of staff desegregation, (3) the assignment of a significant 
portion of the staff on a desegregated basis to those schools in which the 
student body is desegregated, (4) the reassignment of the staff, of schools 
being closed to other schools in the system where their race is a minority, 
or (5) an alternative pattern of assignment which will make comparable 
progress in bringing about staff desegregation successfully.”



43b

teachers, does not obey current judicial commands. We, 
therefore, remand this phase of the litigation to the Dis­
trict Judge to reconsider upon a further evidentiary hear­
ing the matter of faculty desegregation.

4) Desegregation of Teachers Organisations.

It appears that at the time of the hearing in the District 
Court there existed in Tennessee two voluntary organiza­
tions, the Tennessee Education Association, whose mem­
bership was confined to white teachers, and the Tennessee 
Education Congress, made up of Negro teachers. Tradi­
tionally, the School Board allowed separate holidays to 
permit the members of these organizations to attend so- 
called “teacher in-training” programs. The District Judge 
dealt with this subject as follows:

“Plaintiffs also seek an order prohibiting segregation of 
teacher in-service training. Although the proof is not 
completely clear, it appears that the only such segrega­
tion that remains results from the fact that the white 
teachers and the Negro teachers are members of sepa­
rate professional organizations. It appears without 
dispute that defendants do not control the policies of 
these organizations. In any event, as heretofore indi­
cated, the Mapp case, supra, holds that plaintiffs have 
no standing to assert any constitutional claims that the 
teachers may have and may assert a claim for teacher 
desegregation only in support of their constitutional 
right, as pupils, to an abolition of discrimination based 
on race. The assertion by plaintiffs that what remains 
of segregation in teacher in-service training has an 
effect on their right as pupils is, on the proof in this

Opinion of the United States Court of Appeals
For the Sixth Circuit



44b

case extremely tenuous. We deny this application for 
relief.” 244 F. Supp. at 365.

The evidence on this subject is too meager to permit us 
to evaluate the extent to which the school authorities par­
ticipated in or aided the activities of these separate teacher 
organizations, and the degree to which membership by the 
teachers in them would, in turn, affect the rights of the pu­
pils. It appears, however, that these in-service training pro­
grams for teachers are conducted pursuant to state law, 
and are financed with public funds.3 We make clear that the 
plaintiff pupils do have standing to assert that the ex­
istence of separate teacher organizations based on race and 
the school authorities’ cooperation with their separated 
activities such as the in-training program “impairs the 
students’ rights to an education free from any considera­
tion of race.” Mapp v. Board, supra, 319 F(2) at 576. If 
the District Judge’s above quoted language can be read 
as a contrary holding, it is error. We also remand this 
issue to the District Judge for further consideration.

5) The Jackson Symphony Orchestra.

It appeared that the Jackson Symphony Association, with 
permission of the school authorities, arranged for a pro­
gram by the Jackson Symphony Orchestra at one of the 
Jackson schools. The ladies in charge of this event invited 
the children in several grades of the Jackson City Schools, 
the County schools, and the Catholic schools. Those stu­
dents included some from the all-white schools, and some 
from the schools, public and parochial, containing both

Opinion of the United States Court of Appeals
For the Sixth Circuit

3 See e.g., Chap. 76 Tenn. Public Acts, 1965, Sec. 24.



45b

Negro and white students. Students in all-Negro schools 
were not invited for the two performances involved. Testi­
mony by one of the ladies of the Symphony Association 
denied any discriminatory motivation in the selection of the 
pupils, suggesting that the capacity of the auditorium was 
exhausted by those invited and in attendance. She said,

“ If we had room, we would have had every child in 
town there—fourth, fifth and sixth grades of every 
school, but we didn’t have room.”

The school authorities had nothing to do with the matter 
of who was to be chosen to attend the concert. Its only 
participation was to allow the use of the auditorium. While 
it would be impermissible for school authorities to allow use 
of school facilities for entertainment that was discrimina­
tory, nothing was developed by the evidence to cause us to 
criticize the District Judge’s conclusion that the “ defendants 
were not motivated by racial considerations” in their 
handling of this matter. Monroe v. Board of Commissioners, 
supra, 244 F. Supp. at 365.

Another issue discussed by the District Judge, ------  F.
Supp. a t ------ , the so-called “ split season,” has been ren­
dered moot by the elimination of the practice.

The cause is remanded to the District Judge for further 
consideration of the matter of faculty desegregation and 
teacher in-service training, and is otherwise affirmed.

Opinion of the United States Court of Appeals
For the Sixth Circuit



46b

No. 17,118

Judgment of the United States Court of Appeals
for the Sixth Circuit

(filed July 21, 1967)

B renda K ay Monroe, et al.,
Plaintiff's-Appellants,

—vs.—

B oard of Commissioners of the City of Jackson, T ennes­
see, Its B oard Members, and C. J. H uckaba, Superin­
tendent of City Schools,

Defendants-Appellees.

B efore:
O’Sullivan, P hillips and P eck,

Circuit Judges.

J udgment

A ppeal from the United States District Court for the 
Western District of Tennessee.

T his Cause came on to be heard on the record from the 
United States District Court for the Western District of 
Tennessee and was argued by counsel.

On  Consideration W hereof, It is now here ordered and 
adjudged by this Court that this cause be and the same is 
hereby remanded to the District Judge for further con­
sideration of the matter of faculty desegregation and 
teacher in-service training, and is otherwise affirmed.

No costs on appeal awarded either party.

Entered by order of the Court.

/ s /  Carl W. R euss 
Clerk

A True Copy.



MEILEN PRESS INC. — N. Y. C .”̂ 1 P » 2 1 9