Goss v. Knoxville, TN Board of Education Reply to Briefs in Opposition to Certiorari

    I n  t h e

fmpr£iit£ ( to r t  nt tlj? Untied Bu Ub
October Term, 1962 

No. 217

J o s e p h in e  G oss, et al.,

-v.-
Petitioners,

T h e  B oard of  E ducation  oe t h e  C it y  of K n o x v ille , 
T e n n e s s e e , et al.

REPLY TO BRIEFS IN OPPOSITION TO CERTIORARI

J ack  G reenberg  
J am es M. N a bbit , III 

10 Columbus Circle 
New York 19, New York

Carl A. C ow an

2212 Vine Avenue, S. E. 
Knoxville, Tennessee

Z. A lexander  L ooby 
A von N. W illia m s

327 Charlotte Avenue 
Nashville 3, Tennessee

Attorneys for Petitioners



I n  t h e

jshtprm? ©Burt nf tip United Bm&B
October Term, 1962 

No. 217

------------------------------- ------------------------------------------------—

J o s e p h in e  G oss, et al.,

-v.-
Petitioners,

T h e  B oard of E ducation  of t h e  C ity  of K n oxville , 
T e n n e s s e e , et al.

REPLY TO BRIEFS IN OPPOSITION TO CERTIORARI

Petitioners respectfully direct the attention of the Court 
to a recent decision which, it is believed, further supports 
the petitioners’ argument that a writ of certiorari should 
be granted.

On September 17, 1962, the United States Supreme Court 
of Appeals for the Fourth Circuit decided the case of 
Dillard v. School Board of the City of Charlottesville, Va., 
4th Cir. No. 8638. The majority and dissenting opinions in 
that case are appended hereto.

On September 26, 1962, the Fourth Circuit, sitting en 
banc, entered an order recalling its mandate and tempo­
rarily staying it to allow the Charlottesville school authori­
ties to apply for a writ of certiorari and to seek a further 
stay in this Court. The Court expressly indicated that the 
stay was intended to continue only until the Supreme Court 
or a Justice thereof acts upon a further application for a 
stay. In that order the Court of Appeals for the Fourth 
Circuit expressly stated its view that the issue involved



2

should be determined by this Court stating, inter alia: 
“This Court respectfully ventures to suggest that these 
issues merit review, especially.”

As a result of the decision in the Dillard case, there is 
now a conflict between the rulings of the Fourth and Fifth 
Circuits, on the one hand, and the decision of the Sixth 
Circuit in the Goss and Maxwell cases involved in this 
petition, on the other hand. Furthermore, the Dillard deci­
sion emphasizes the fact that the issue involved is of wide­
spread public importance and merits plenary review in this 
Court.

Respectfully submitted,

J ack  G reenberg  
J am es M. N abrit , III 

10 Columbus Circle 
New York 19, New York

C arl A. C ow an

2212 Vine Avenue, S. E. 
Knoxville, Tennessee

Z. A lexander  L ooby 
A von  N. W illia m s

327 Charlotte Avenue 
Nashville 3, Tennessee

Attorneys for Petitioners



APPENDIX



APPENDIX

OPINION

UNITED STATES COURT OP APPEALS
F oe t h e  F o u r th  C ir c u it  

No. 8638

D oris D illard, et al.,
Appellants,

-v .-

T h e  S chool B oard oe t h e  C ity  o f  C h a rlo ttesv ille ,
V irginia, et al., 

a n d
Appellees,

T h e  S chool  B oard of t h e  C ity  of C h a rlo ttesv ille , 
V ir g in ia , et al.,

Appellants,
— v.—

C arolyn M arie D obson , et al.,
Appellees.

Appeals from the United States District Court for the 
Western District of Virginia, at Charlottesville. John Paul, 
District Judge.

(Reargued July 9, 1962 Decided September 17, 1962.)

B e f o r e  :
S o belo ff , Chief Judge, a n d

H a y n sw o r th , B orem an , B ryan  and J. S pe n c e r  B e l l , 
Circuit Judges, sitting en banc.



4

S. W. T u c k er  (Henry L. Marsh, III, Otto L. 
Tucker, Jack Greenberg and James M. 
Nabrit, III, on brief), for Appellants and 
Cross-Appellees, and

J o h n  S. B a ttle , J r . (Battle, Neal, Harris, Minor 
& Williams, on brief), for Appellees and 
Cross-Appellants.

P er  C u ria m  :

This appeal was first heard by a panel consisting of 
Senior Judge Soper, Chief Judge Sobeloff and Circuit 
Judge Boreman. An opinion was prepared by Judge Soper, 
but before it was announced by the court a hearing en banc 
was ordered, in which the five active judges of the court 
sat, but Judge Soper did not participate.

Judge Soper’s opinion, which Sobeloff, Boreman and 
Bell, JJ., adopt as the opinion of the court, is as follows:

Cross-appeals again bring to this court questions arising 
in the administration of the public schools of Charlottes­
ville, Va., with respect to the assignment of white and 
Negro children in the elementary and high school grades.* 
Our most recent decision in Dodson v. School Board of the 
City of Charlottesville, 289 F. 2d 439 (1961), outlines the 
stejis that the School Board had then taken toward the in­
tegration of the races in the schools and the plan of oper­
ation for the school year 1960-1961. The plan involved the 
division of the City into six geographical districts, each 
of which was served by one of the elementary schools, to 
wit: Jefferson, Venable, Johnson, Burnley-Moran, Clark 
and McGuffey. It was provided that each child should 
attend the school located in the zone of his residence and

* The opinion of the District Court is reported at 203 F. Supp. 
225.



since a large majority of the Negro residents live in the 
Jefferson District the result was that, with the exception 
of some 13 Negro pupils attending the predominantly white 
Venable School, all of the Negro elementary pupils were 
enrolled in the Jefferson School, which no white pupils at­
tended. No Negro pupils were assigned to the four other 
elementary schools. The plan, however, provided that the 
parents of any child, white or colored, could request a 
transfer and the superintendent of the schools was em­
powered to grant such a request after consideration of 
various criteria applicable to white and Negro pupils 
alike, including factors affecting the immediate interests 
of the pupils and the efficient administration of the schools.

Two high schools were operated in the City, Lane and 
Burley. There were no zones for admission to these schools 
but the superintendent was guided in making assignments 
of students by the pupil-teacher ratio, convenience of at­
tendance, academic qualifications and, to some degree, by 
the preference of the pupil and his parents. The transfer 
provisions were the same as those applicable to the ele­
mentary schools.

Prior to the plan for desegregation Lane was all-white 
and Burley all-colored. In 1960-61, at the time the Dodson 
case was brought, thirteen Negro elementary pupils had 
been assigned to Venable and seven Negro high school 
students had been assigned to Lane. That suit was in­
stituted on behalf of four Negro pupils whose application 
for admission to white elementary schools had been denied 
because they resided in the Jefferson district and also on 
behalf of six Negro high school pupils whose application 
for admission to Lane had been denied, four because of 
academic deficiency and two because they resided nearer 
to Burley than to Lane. Having been denied relief in the 
District Court the plaintiffs appealed to this Court. We 
upheld the Board’s plan but condemned the Board’s ap­



6

plication of the plan as discriminatory and unconstitutional. 
We pointed out that all Negro elementary pupils were ini­
tially assigned to Jefferson whatever the zone of their 
residence but white pupils living in Jefferson were initially 
assigned to white schools in other districts. In respect 
to high schools we showed that all colored pupils were 
initially assigned to Burley and all white pupils to Lane 
and that Negro pupils desiring to transfer to Lane were 
subjected to residence and academic tests which were not 
applied to white students seeking admission to Lane. We 
recognized that these practices were discriminatory but, 
upon the assurance of the Board that they were transitory, 
we remanded the case to the District Court to reexamine 
the situation with regard to the ensuing school year, 1961- 
1962, “confident that steps [would] be taken promptly to 
end the present discriminatory practices in the administra­
tion of the desegregation plan”, 289 F. 2d 444.

Mindful of this admonition the School Board made cer­
tain changes in its plan of operation. The assignment of 
each elementary school pupil, white or colored, was made 
to the school in his residence zone. This step, of course, 
tended to perpetuate the earlier practice of segregation; 
but transfers were permitted in the following fashion. 
Elementary pupils, white or colored, assigned to schools 
where they were in the racial minority were permitted 
with the consent of their parents to transfer to a school 
in another district where they would be in the racial 
majority. Thus a white child living in the Jefferson 
colored district could transfer to a school in one of the 
five white districts and a colored child living in one of 
the white districts could transfer to Jefferson. To ef­
fectuate this plan a form letter was sent by the Super­
intendent of the schools to the parents of each child 
attending an elementary school outside the zone of his 
residence stating that the child had been tentatively reas­



7

signed to the same school, but that the child could remain 
in that school only if the parents specifically requested it. 
A form to be signed by parents was attached to the letter.

Through this procedure all of the white pupils, 149 in 
number, who lived in the Jefferson area were granted 
“transfers” to schools in the other zones and approximately 
50 Negro elementary school pupils residing in the white 
districts were “transferred” to Jefferson. Nine addtiional 
Negro pupils were admitted to the Venable elementary 
school, bringing the total number in attendance to twenty 
and nine additional Negro high school pupils were admitted 
to Lane, bringing the total to sixteen.

The School Board reached the conclusion that by adopt­
ing this plan they had eliminated all racial discrimination 
and, accordingly, they rejected the applications for trans­
fer to other districts of seventeen Negro elementary pupils 
residing in the Jefferson district. On their behalf the 
present suit was brought in the District Court to restrain 
the actions of the Board but the District Judge held that 
the plan was valid and this appeal followed.

The question for decision is of especial importance in 
the administration of the Charlottesville schools in view of 
the Board’s past operations and its present attitude in the 
administration of the school system. When it is noted that 
despite prolonged litigation all of the Negro elementary 
school pupils in the City, other than the twenty assigned 
to Venable, are still enrolled at the all-Negro Jefferson 
school, while all of the white students attend one of the 
five elementary schools in the other districts, and that all 
of the Negro high school students except sixteen attend 
the all-Negro Burley High School, it is clear that little 
change has been made in the administration of the ele­
mentary schools from that which prevailed when the schools 
were completely segregated. It seems equally clear that



8

little progress in the integration of the schools may be 
expected if the Board is permitted to pursue the policy 
which, after mature consideration, it has deliberately 
adopted.

The Board’s argument is that there is no racial dis­
crimination in the enrollment of the pupils in the elementary 
schools for the following reasons. The Board has aban­
doned the plan contained in our decision in the Dodson 
case. Under that plan Negro pupils wherever they lived 
were initially assigned to Jefferson and white students 
were initially assigned to the school of the zone of their 
residence; and since transfers were only sparingly per­
mitted the admission of colored pupils into white schools 
was effectually prohibited and segregation was prolonged. 
Under the new 1961-1962 plan, says the Board, every child 
whether white or Negro is initially assigned to the school 
of his residence district and transfers are granted to white 
and colored children under the same rule or restriction. 
Any child may transfer from a school in which his race 
is in the minority to a school in which his race is in the 
majority and since this plan applies to both races alike 
there is no discrimination.

In support of its position the Board relies on Kelley v. 
Board of Education of the City of Nashville, 6 Cir., 270 
F. 2d 209,* where it was held that a transfer provision is 
not invalid which permits voluntary transfers of white and 
Negro students who would otherwise be required to attend 
schools previously serving only members of the other race, 
or where the majority of the students are of the other 
race. The Court thought that this plan was not invalid 
since the Supreme Court in Brown v. Board of Education,

* Certiorari was denied in this case, 361 U. S. 925, three justices 
indicating that they would grant the petition limited to the ques­
tion whether certain provisions of the Nashville plan were in­
valid for the reason that they “explicitly recognized race as an 
absolute ground for the transfer of students between schools, 
thereby perpetuating rather than limiting racial discrimination.”



9

347 U. S. 483, did not deprive persons of the right of 
choosing the school they desired to attend but merely held 
that a person may not be denied the right to the school 
of his choice because of his race. The Sixth Circuit, how­
ever, in its subsequent decision in Goss v. Board of Educa­
tion of the City of Knoxville, Term., 301 F. 2d 164 (1962), 
observed that the application of this transfer provision 
may become a violation of constitutional rights and con­
sequently admonished the Board not to use it as a means 
of perpetuating segregation. And see Maxwell v. County 
Board of Education of Davidson Co., Term., 301 F. 2d 828, 
6 Cir., 1962. Moreover, the Fifth Circuit in Boson v. Rippy, 
285 F. 2d 43, differing from the views set out in the Kelley 
case, disapproved a desegregation plan which included a 
transfer provision like that practiced in Charlottesville. 
It held, 285 F. 2d 48, that “classification according to race 
for purposes of transfer is hardly less unconstitutional 
than such classification for purposes of original assign­
ment to a public school.” In Mapp v. School Board of 
Chattanooga, D. C. E. D. Tenn. 1962, 203 F. Supp. 843, 
853, the District Court, in accord with Boson v. Rippy, 
supra, said that “any transfer plan, the express or primary 
purpose of which is to prevent or delay the adoption or 
implementation of the plan of desegregation herein de­
veloped, should not be approved.”

In our view the Charlottesville plan in respect to the 
pupils in the elementary schools is clearly invalid despite 
the defense that the rules for the assignment and transfer 
of pupils are literally applied to both races alike. It is of 
no significance that all children, regardless of race, are 
first assigned to the schools in their residential zone and 
all are permitted to transfer if the assignment requires the 
child to attend the school where his race is in the minority, 
if the purpose and effect of the arrangement is to retard 
integration and retain the segregation of the races. That



10

this purpose and this effect are inherent in the plan can 
hardly be denied. The School Board is well aware that 
most of the Negro pupils in Charlottesville reside in the 
Jefferson zone and that under the operation of the plan 
white children resident therein will be transferred as a 
matter of course to the schools in the other zones while 
the colored children in the Jefferson zone will be denied 
this privilege. The seeming equality of the language is 
delusive, the actual effect of the rule is unequal and dis­
criminatory. It may well be as the evidence in this case 
indicates that some Negroes as well as whites prefer the 
schools in which their race predominates; but the wishes 
of both races can be given effect so far as is practicable 
not by restricting the right of transfer but by a system 
which eliminates restrictions on the right, such as has 
been conspicuously successful in Baltimore and in Louis­
ville.

It was suggested during the argument of the appeal that 
a reversal of the judgment of the District Court might 
lead the Board to deny all transfers in the Charlottesville 
schools. We take this occasion to say, however, that such 
a step might well be as obnoxious as that employed by the 
Board in the case at bar. A similar plan was condemned in 
Taylor v. Board of Education of New Rochelle, 2 Cir., 294 
F. 2d 36.

We do not mean to say that the School Board has no 
discretion in the assignment of pupils to the Charlottes­
ville schools, but in respect to the elementary children in 
this case the Board has applied no criteria that would 
stand the constitutional test and, therefore, in the interest 
of these children further delay in the exercise of their 
constitutional rights cannot reasonably be granted.*

* The operation of the Charlottesville schools was brought to our 
attention in 1956 in School Board of the City of Charlottesville v. 
Allen, 240 F. 2d 59.



11

We, therefore, hold that as to the seventeen elementary 
children, who were plaintiffs in the court below, the judg­
ment be reversed and the case remanded to the District 
Court so that appropriate steps, by injunction or otherwise, 
may be taken to secure their admission to the schools of 
their choice for the 1962-1963 school year.

The cross-appeal by the School Board in this case re­
lates to the judgment of the District Court that nine Negro 
high school pupils who were excluded by the Board from 
the Lane High School be admitted to that institution. 
Subsequently, the Board admitted two of the nine and as 
to them the cross-appeal is expressly abandoned in the 
Board’s brief in this Court. Four of the remaining seven 
were before this Court in the Doclson case, where we noted 
that they had been excluded from Lane for academic defi­
ciency and said that residence and academic tests may be 
properly applied in passing on the applications for ad­
mission to a school provided that the factors of race and 
color are not considered, 239 F. 2d 439, 442. Since it was 
shown that the tests were not applied to white children 
in the same situation we held that the four plaintiffs had 
been discriminated against. Nevertheless, we affirmed the 
judgment below in the confident belief that discrimination 
between the races in the admission of high school students 
would be eliminated by the Board itself. In this respect our 
hopes have been disappointed. The Board has abandoned 
the residence tests as to high school children but has made 
no change in the academic tests. The four Negro high 
school pupils who were before us in the Dodson case, and 
in addition three other high school students, all of whom 
are cross-appellees in this case, have been denied admission 
to Lane because of alleged academic deficiency. The Board’s 
position is that their admission into a school for which 
they are not qualified will not only be detrimental to them 
but to the school itself and, therefore, they should be



12

excluded. Obviously, these factors are worthy of considera­
tion in the operation of any school system. The difficulty 
is, however, that the Board admits white children to Lane 
without tests, irrespective of their academic qualification, 
upon the theory that they should not be denied any high 
school education whatsoever. The alternative of sending 
them to Burley is not deemed worthy of consideration. 
The discrimination involved is too clear to require dis­
cussion. Not only are academic tests applied to Negroes 
only but Negroes who are considered so deficient in aca­
demic achievement that their admission to Lane would be 
detrimental to the school, are sent to Burley without regard 
to the consequences. See Bush v. Orleans Parish School
Board, E. D. La., New Orleans Div., -----  F. Supp. ----- ,
decided April 3, 1962.

Accordingly, the judgment of the District Court regard­
ing the admission of the nine high school students to the 
Lane High School will be affirmed and the case will be re­
manded to that Court in order that appropriate steps may 
be taken to put the judgment into effect.

Reversed in part and affirmed in part and remanded for 
further proceedings. Let the mandate issue immediately.

----------* ----------

A lbert  V. B ryan , Circuit Judge, w ith  w h o m  H a y n sw o r th , 
Circuit Judge, jo in s , d is s e n t in g :

Without semblance or hint of gerrymandering—so con­
ceded by the appellants—school districts were laid out 
by the Charlottesville School Board for elementary classes 
in a plan of desegregation which had been filed at the 
instance of the District Court: each child regardless of 
race is assigned to the school in the district of his residence. 
Then, any pupil is allowed—by merely a telephone call— 
to transfer from any school in which his race is not in the 
majority. Yet this arrangement is now stricken down by



13

the Court because in the operation of the transfer feature 
as to one school—Jefferson—there can be no transfer of 
a Negro student from that school inasmuch as it is pre­
dominantly Negro. This is said to be discrimination. I 
think the conclusion erroneous both in fact and in law.

I. It is not discrimination in fact because the same right 
of transfer as the white children have at Jefferson is ac­
corded colored children in schools that are mostly “white”. 
The same restriction of the Negroes at Jefferson is applied 
to the white children in the other schools. The Negroes 
may transfer from the latter—and 50 of them did—whereas 
no white student can leave those schools. It is argued that 
the white children would not desire to leave a “white” 
school but the Negro would want to leave Jefferson, and 
thus he is deprived, because of his color, of the “right” to 
attend an integrated school. This is to argue, also, that 
by leaving Jefferson School the white children create segre­
gation there. With equal reason it may be argued that 
the colored children in departing from the other schools 
caused segregation there. All of these contentions wrongly 
ignore three vital considerations: the fairness of the en­
tirety of the plan; the Fourteenth Amendment does not 
guarantee a student an integrated school to attend; and 
the “segregation” here is not the result of the plan but of 
individual choices of individual students.

The Negro was not placed at Jefferson because he was 
a Negro, nor was the white child enrolled at another 
school because he was white. Neither was so placed in 
order to keep them apart. They are in their respective 
schools solely because of the location of their respective 
residences and for no other reason. The Jefferson residence 
district, to repeat, was not arbitrarily formed.

Approval of the plan of the Charlottesville Board has 
been declared by this Court. In Dodson v. School Board, 
289 F. 2d 439 (4 Cir. 1961) we said of it, at p. 442:



14

“At the elementary school level, the plan contem­
plates that every child, regardless of race, shall be 
sent initially to the school of the district in which he 
lives, and after such initial assignments, there may be 
transfers if the parents so request and the superin­
tendent approves. This is a perfectly acceptable method 
of making school assignments, as long as the granting 
of transfers is not done on a racially discriminatory 
basis or to continue indefinitely an unlawful segregated 
school system . . . ”

The only criticism of the plan there made was the initial 
assignment of all Negro elementary pupils in the city to 
Jefferson, rather than to the school of their residence. 
This was corrected. So that now the only objection urged 
is that the Negro student does not have freedom to move 
out of Jefferson when that is the school of his residence.

The Sixth Circuit approved an equivalent of the Char­
lottesville transfer provision in Kelley v. Board of Educa­
tion, 270 F. 2d 209, 228 (6 Cir. 1950) cert, denied 361 
U. S. 924, and more recently in Goss v. Board of Education, 
301 F. 2d 164, 168 (6 Cir. 1962) and Maxwell v. County 
Board of Education, 301 F. 2d 828, 829 (6 Cir. 1962). 
Contra: Boson v. Rippey, 285 F. 2d 43, 47 (5 Cir. 1960); 
but see Rippy v. Borders, 250 F. 2d 690, 693 (5 Cir. 1957) 
post p. 4. Taylor v. Board of Education, 294 F. 2d 36 
(2 Cir. 1961) cert, denied 368 U. S. 940, decided by a divided 
court is not authority to sustain the Court here. There a 
suburban New York City school district had been de­
liberately drawn so as to encompass Negro residents only.

II. In law there has been no discrimination, for the 
Negro child has not been denied any privilege through 
policy, usage, law or regulation. If there has been a dep­
rivation, it is—solely, actually and not capriciously—the 
result of the geographical location of his residence. This



15

is a consideration understandably overlooked by. the Court 
in the generality of its statement that the infrequency of 
Negro attendance in “white” schools is itself proof of dis­
crimination.

Jefferson School District, as previously noted, was not 
a discriminatory division. It came about, as often occurs 
in many cities, through the Negroes’ living in a concen­
trated area. This may:, change, and thereafter alter the 
play of the residence and transfer rule at Jefferson. But 
until then the residents of the area must abide by rules 
and regulations based on just and fair district lines. No 
constitutional or legal question is presented. No Govern­
ment authority has allocated them to a special section of 
the city or centered their population in a specific territory.

The fundamental reason of the Court for holding the 
refusal of transfer of Negroes to the Jefferson District to 
be discrimination seems to be that the refusal deprives the 
Negro children of association with white children, all of 
whom have transferred from Jefferson District. There is 
no other grievance suggested in their remaining at Jeffer­
son. The Court further manifests this reason when it says 
that the residence and transfer provision retards “inte­
gration”.

But even if this is the result of the Charlottesville plan:— 
although entirely incidental—nevertheless it would not be 
a violation of the doctrine of Brown v. Board of Education, 
347 U. S. 483 (1954) and subsequent commentary deci­
sions. The Supreme Court was explicit there in not re­
quiring integration, but in merely striking down denial of 
rights through segregation. The point was sharply made 
in Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955). 
It is too late now to question this as the plain holding 
of that three-judge court. Judge Parker, a member of 
that panel, confirmed this meaning when he spoke for 
this. Court in School Board of Charlottesville v. Allen,



16

240 F. 2d 59, 62 (4 Cir. 1956) cert, denied 353 IT. S. 911, 
and again in School Board of City of Newport News v. 
Atkins, 246 F. 2d 325, 327 (1957). Substantially this very 
statement was approved with emphasis by the Fifth Cir­
cuit in Rippy v. Borders, 250 F. 2d 690, 693 (1957). Fur­
thermore, on remand of Brown v. Board of Education, 
the District Court from which it originated, following the 
rescript of the Supreme Court immediately after its second 
and implementing school decision, Brown v. Board of Edu­
cation, 349 IT. S. 294 (1955), stated the proposition with 
equal clarity as follows:

“Desegregation does not mean that there must be in­
termingling of the races in all school districts. It means 
only that they may not be prevented from intermingling 
or going to school together because of race or color.

“If it is a fact, as we understand it, with respect to 
Buchanan School that the district is inhabited by 
colored students, no violation of any constitutional 
right results because they are compelled to attend the 
school in the district in which they live.”

Brown v. Board of Education, 139 F. Supp. 468, 470 (D. 
Kan. 1955). Like decisions in other Circuits are cited in the 
dissent in the Second Circuit (N. Y.) case of Taylor v. 
Board of Education, supra, 294 F. 2d at 47, n. 4.

Our Court’s opinion now seems to hold that if a racial 
minority in a school zone is given a right to transfer out, 
every member of the racial majority in that school must be 
given the same right—otherwise the rule is unconstitutional. 
Applied to Jefferson School the opinion intimates that the 
Negro pupils there—the great majority of the student body 
—should be permitted to transfer in the same way as the 
minority. But the Court denied this very right to the ma­
jority in McCoy v. Greensboro Board of Education, 283



17

F. 2d 667 (4 Cir. 1960). There the Board granted the re­
quests of Negro children to enter a “white” school, then 
afterwards allowed the transfer of the majority—all white 
children—to another school. The transfer of the majority 
was held invalid because it left a minority composed of 
Negroes only. This again was apparently on the thesis 
that it resulted in a separation of the races whereas the law 
requires integration—a theory I find untenable.

III. The transfer rule is simply a means of permitting 
a child to express his wishes. Surely, to allow a child such 
an option—even though his wishes be based on racial 
grounds—is not unconstitutional. Allowing expression by 
both races so far as practicable—with equal opportunity— 
of their preferences in a personal matter has not in any de­
gree been precluded by the Supreme Court in its efforts 
to solve the school problem or in any other field. The Court 
has merely ruled against enforced separation of persons 
of different races by reference to objective criteria. Never 
has the Court denied the exercise of the personal tastes 
of the races in their associations.

The judgment of the District Court in respect to the 
elementary school appellants should be affirmed. In regard 
to the high school appellants I express no disagreement 
with the majority.

H a y n sw o r th , Circuit Judge, w ith  w h o m  B ryan , Circuit 
Judge, jo in s , d is s e n t in g :

I agree with m y  brother, Bryan, and I join him in his 
opinion.

I am prompted to turn to other considerations, however, 
for it seems to me the two opinions are on an esoteric 
plane far above practical problems confronting school 
boards. Practical, difficult problems do arise in many places



18

as school boards undertake the task of conversion of school 
systems to a basis of operation which counters social cus­
toms and patterns of conduct, which, over a period of cen­
turies, have become deeply ingrained in a people. The 
Supreme Court in 1955 recognized that such problems would 
be encountered and directed that they be not ignored! 
School boards were allotted the duty of solving and over­
coming those problems with all deliberate speed, while the 
lower federal courts were required to enter appropriate 
orders when school boards neglect their duty. It is not for 
the courts, however, by overlooking the practical problems, 
to impose difficulties in the way of a school board strug­
gling, even though with some reluctance, to achieve the 
goal that has been set for it.

As I approach the practical situation, in terms of which 
I think the legal issue here should be framed, I do so with 
awareness that the case has not been presented on that 
basis. The question whether discrimination inheres in a 
geographic assignment plan, if accompanied by a provision 
for permissive minority transfers, has been tendered in 
general and abstract terms.1 2 The Court answers it in 
those terms.3 The School Board has sought affirmance of

1 Brown v. Board of Education, 349 U. S. 294, 75 S. Ct. 753, 
99 L. Ed. 1083.

2 The question tendered, in effect, is th is: If A and B, one of 
whom is Caucasian and the other Negro, each of whom is a member 
of a racial minority in the school to which he is assigned, are both 
allowed to transfer, is there a denial of the equal protection of the 
laws to X, if X and T, a Negro and a Caucasian, each of whom is a 
member of a racial majority in the school to which he is assigned, 
are both denied transfers? Since the conundrum elides the fact, 
or the possibility that it may be the fact, that there was good reason 
for allowing the transfers of A and B and no comparable reason 
for allowing the transfer of either X or Y, the resultant discussion, 
interesting though it may be, is esoteric abstraction.

3 The majority concentrates attention upon A and X, both of 
whom had been assigned to the same school. That concentration 
does not make the resulting discussion concrete, for the opinion



19

the District Court’s approval of its plan on the basis of 
its belief that the plan, generally and abstractly, is not dis­
criminatory. It has not asked that it he approved as a 
reasonable amelioration of a particular problem during 
a transitional period. That it asked for more, however, 
does not mean it should get less than its due. If its plan 
merits temporary approval as a transitional measure, its 
disapproval should not be unqualified.

One may thus concede the reasonableness of the abstract 
principle declared by the majority and reasonably hold the 
view that the majority should have proceeded further to 
consider whether the plan, with its determined defects and 
shortcomings, might not be permissible as a temporary 
expedient. If the present record is insufficient for that pur­
pose, it could be supplemented upon remand. At least, the 
implication that the abstract principle will be applied in 
other cases, no matter how compelling the reasons for the 
school board’s adoption of a similar plan, ought not to be 
left open.

Those conversant with the problems of desegregation in 
the South, know the intensity of public concern over the 
plight of children constituting a small minority unwillingly 
assigned to a school in which an overwhelming majority is 
of the other race. If separation of Negro children “solely

does not consider their disparate circumstances or the bearing of 
those circumstances upon the reasonableness of a general rule al­
lowing the permissive transfer of the one, but not of the other.

The majority also points to the fact that the Board’s plan per­
mits actual mixing of the races in the schools at a slower rate than 
might occur under some other plan, not adopted by the School 
Board. Such a fact may bear more or less heavily upon the rea­
sonableness of a particular plan under particular circumstances, 
but, of itself and without regard to other facts bearing upon the 
reasonableness of the Board’s conduct, it is not a final answer. The 
same thing may be said of every interim arrangement which has met 
the approval of the courts. Indeed, the same thing may be said of 
a geographic assignment plan unaccompanied by any provision for 
permissive minority transfers.



20

because of their race generates a feeling of inferiority as 
to their status in the community that may affect their 
hearts and minds in a way unlikely ever to be undone,” 4 
such a child may be subjected to a much more searing ex­
perience if, bereft of established friends and relations, com­
pelled to attend a school or classes in which all others are 
of the opposite race. Some children could adjust themselves 
to such a situation, but in the early stages of desegregation 
when the force of old customs and practices is unspent, 
many could not. Those who could not adjust to such a 
radical change would likely have senses of inferiority 
greatly intensified, and unadjusted children too frequently 
become the butt at the hands of their fellows of those un­
restrained cruelities of which children of all races are cap­
able. If such unadjustable children are compelled to remain 
in an intolerable situation, the damage to their emotional 
and mental development and well-being will be irreparable.

It is because of such widespread concern over the plight 
of unwilling minorities in particular schools that school 
boards throughout the South have adopted permissive 
transfer provisions in association with assignment plans 
based upon attendance areas or other objective criteria. 
In some places, such a provision may be essential to the 
institution or continuance of a plan of desegregation, for 
it touches an area of peculiar public sensitivity, and school 
boards cannot operate public school systems without pub­
lic support.

Provisions for permissive minority transfers are founded 
upon an assumption that the transition to a fully desegre­
gated school system will create personal problems for un­
willing minorities in particular schools, especially when 
the minority is relatively small, which differ in kind and 
degree from the problems which majorities, especially rela­

4 Brown v. Board of Education, 347 U. S. 483, 495, 74 S. Ct. 686, 
98 L. Ed. 873.



21

tively large majorities, may be expected to encounter. The 
assumption seems plainly valid, for it hardly is to be 
doubted that a child well adjusted in school A where his 
race predominates, where he has established friendships 
and where he ardently wishes to be, may become very mal­
adjusted if compelled to attend school B where his own race 
is a small minority, where he has no established friends 
and where racial differences may become greatly magnified 
in his own mind. Such a problem is obviously more acute 
and more difficult to overcome than any personal problem 
which may be anticipated by members of racial majorities, 
unseparated from established friends, compelled to accom­
modate themselves to the presence or absence of a minority 
of pupils of the other race.

Of course, the magnitude of the personal problems and 
of the difficulties in the way of requisite adjustments will 
vary with individuals and with differences in environ­
mental conditions. A child who might encounter insur­
mountable difficulty, as a member of a small minority, in 
making the personal adjustment, might encounter little dif­
ficulty if the minority group was relatively large, 49%, for 
instance,5 and included others who were his old friends. 
Such variances, however, do not militate against the gen­
eral validity of the assumption that, in the transitional pe­
riod, unwilling members of minority groups will encounter 
difficulties and problems which are different in kind and 
degree from those which members of majority groups may 
be expected to encounter.

This kind of problem exists whatever the race of the 
minority group. That present provision for permissive 
minority transfers is in the interest of Negro minorities 
is suggested by the extent to which they avail themselves 
of it. This very record discloses that fifty Negro pupils 
availed themselves of the permissive right to transfer to

5 Of course, that is not this case.



22

Jefferson School, rather than attend the predominantly 
white schools in the attendance areas of which they resided.

The majority, of course, does not hold that unwilling 
minorities may not be allowed to transfer. It does hold 
that if such transfers are allowed as of course, the same 
right of transfer must be extended to every other child 
regardless of the dissimilarities of his circumstances. The 
provision for minority transfers is treated as a virus which 
so infects an otherwise objective, nondiscriminatory, lawful, 
geographic assignment plan, that the plan may not be 
enforced as to anyone. Provision for protection of the 
special interest of minorities is related to malice, which, 
naked and alone, is not unlawful, but which makes unlawful 
and actionable a communication which otherwise would be 
privileged and unactionable.

The necessary result of the opinion, therefore, is a stric­
ture on provision for permissive transfers of protesting 
members of minority groups whenever a school board finds 
it necessary or desirable to adopt or continue an enforceable 
geographic assignment plan. The consequence will be that 
the discretion of school boards is circumscribed, and, in 
some instances, the effective adoption of any plan may be 
made impossible.

I do not understand the court to say that, in the absence 
of a blanket provision for the transfer of unwilling mem­
bers of minority groups, a transfer of one such child, for 
good reason, would deprive the school board of its power 
of enforcement of all other assignments. It certainly should 
not. School boards always have had, and always should 
have, discretionary power to treat exceptional cases as 
exceptional. If a school board, having adopted a geographic 
assignment plan without a minority transfer provision, was 
confronted with proof that a particular child had previously 
attended a segregated school attended solely by members 
of his own race where he worked well and was well adjusted,



23

but, assigned under the plan as one member of a small 
minority to another school predominantly populated by 
pupils of the other race, had encountered insurmountable 
difficulty, that his progress had been arrested and he was 
suffering great emotional and mental harm, and if such 
proof was accompanied by the urgent plea of the child 
and his parents that he be transferred back to the school 
he formerly attended, must the school board ignore the 
plea or suffer loss of its power to control all other assign­
ments which it had made under its geographic assignment 
plan? I would say, obviously not.6 Every exception to a 
general rule, if made with good reason, does not invalidate 
the rule. A permissive transfer of a child whose personal 
need makes a transfer requisite, should not confer upon all 
other pupils, who have no comparable need, the same trans­
fer privilege. If tutorial assistance is furnished the child 
who needs it most, every other pupil, who has no such need, 
is not denied the equal protection of the laws if he is not 
offered the same assistance. It would be a gross perversion 
of constitutional doctrine to say that any governmental 
body may not reasonably classify citizens and their claims 
or that a classification based upon the need of the claimants 
is necessarily unreasonable.

If this be so, if a transfer of one child in dire need of 
it as an exception to an otherwise lawful, geographic as­
signment plan does not divest the school board of its au­
thority to deny transfers to those who show no such need,7 
a general provision for permissive transfers of the needy

6 If a member of a racial majority has comparable need of a 
transfer, I think a school board could and should transfer him and 
that its doing so would not deprive it of the power to deny transfers 
to other members of the majority, assigned by attendance areas, 
who have no comparable need.

7 If this be not so, the conclusion cannot be premised upon any­
thing to be found in the Constitution of the United States.



24

class must be permissible if the actual and special need 
of those to whom it applies reasonably warrants it. The 
existence of such need and its relationship to the rule, 
the majority does not consider. The court does not reach 
the question whether the provision, as an interim measure 
and as applied here, is reasonable, wise or even essential 
to progress. It concludes that the provision, however rea­
sonable, in combination with the assignment plan is ab­
stractly discriminatory, and there it stops.

If that were the stopping place, no “stair-step” plan of 
desegregation would ever have been approved. Such plans 
are not just abstractly discriminatory, inevitably in ap­
plication they are concretely so. They are approved, none­
theless, when they represent reasonable progress toward 
ultimate compliance. Other such interim measures, though 
claiming no pristine purity free of discrimination’s taint, 
are similarly approved. Indeed that is the very thing the 
Supreme Court required of us by its remand order in the 
School Cases. During this transitional period, we have no 
right to strike down what Charlottesville’s School Board 
has done or to overturn its authority over assignments and 
transfers, unless, after full consideration, it is found that 
what it has done is unreasonable in the light of all of the 
circumstances.8 -

8 Of course, this determination is initially for the District Judge, 
whose findings we can overturn only within the traditional rules 
limiting our appellate power. Here there is no clear finding on the 
decisive fact of reasonableness or unreasonableness, for the District 
Court was of the opinion that the plan was not discriminatory, even 
abstractly. A remand for further consideration of the crucial ques­
tion of reasonableness of the rule in the light of the needs and the 
differences in the needs of members of disproportionate minority 
and majority groups, might be appropriate. We should not under­
take a final decision of that factual question; at least, we should not 
decide it without consideration of it.



25

Since it seems to me the court has not reached the crucial 
question and that its abstraction is not decisive of the whole 
case, I have found it necessary separately to record my 
disagreement with the result.

Judge Bryan authorizes me to note that he joins in this 
dissent.