Stell v. Savannah-Chatham County Board of Education Brief for Appellants

    IN THE

Ittitpfc States dnurt nf Appeals
FOR THE FIF T H  CIRCUIT 

No. 23,724

RALPH  STELL, a minor, by L. S. STELL, JR.,
Ms father and next friend, et al., 

and UNITED STATES OF AM ERICA,
Appellants,

— v . —

BOARD OF PUBLIC EDUCATION FOR THE CITY OF SAVANNAH 
AND THE COUNTY OF CHATHAM , et al.,

Appellees,

LAW RENCE ROBERTS, et. al.,
Appellees-Intervenors.

BOARD OF PUBLIC EDUCATION FOR THE CITY OF SAVANNAH 
AND THE COUNTY OF CHATHAM, et al,

Appellants,
— v.-—

RALPH  STELL, a minor, by L. S. STELL, JR., 
his father and next friend, et al., 

and UNITED STATES OF AM ERICA,
Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS RALPH STELL, ET AL.

JACK GREENBERG 
JAMES M. NABRIT, III  
CHARLES STEPHEN RALSTON 
H ENRY M. ARONSON 

10 Columbus Circle 
New York, New York 10019

E. H. GADSDEN
458% W. Broad Street 
Savannah, Georgia

Attorneys for Appellants 
Ralph Stell, et al.



I N D E X
PAGE

Statement of the Case .................................................. . 1

Specifications of Error ................................ .................... 10

A rgument—

I. The District Court Below Is Required to Enter 
a Plan for the Desegregation of the School 
System in the City of Savannah and County of 
Chatham Which Substantially Complies With 
This Court’s Decision in United, States of 
America and Linda Stout v. Jefferson County 
Board of Education..... ..................... .................... 11

A. The plan entered by the district court failed 
in every respect to comply with the require­
ments of the Constitution of the United 
States and the decisions of the Supreme 
Court of the United States and of this Court 11

B. This Court should enter an order directing 
the district court to enter an order sub­
stantially in accordance with this Court’s 
proposed decree in the Jefferson County case 16

II. The White Intervenors Should Be Dismissed 
From This Action With Costs and Attorneys’ 
Fees Because Their Presence Has Unduly De­
layed and Prejudiced the Adjudication of the 
Rights of the Original Parties to This Action
Within the Meaning of the Federal Rules ...... . 21

Conclusion ............ -..........-.... ...... ................................... 25

Certificate of Service 26



11

T able of Cases

Archer v. United States, 268 F.2d 687 (10th Cir. 1959) 22

Brown v. Board of Education, 347 U.S. 483 ...............12,14

Carroll v. American Federation of Musicians of U.S.
& Can., 33 F.R.D. 353 (S.D. N.Y. 1963) ....................  22

H. K. Ferguson Co. v. Nickel Processing Corp. of 
N.Y., 33 F.R.D. 268 (S.D. N.Y. 1963) ....... ....... .........  24

Green v. School Board of City of Roanoke, Va., 304 
F.2d 118 (4th Cir. 1962) ........... ............ ...................... 14

Jackson v. School Board of City of Lynchburg, Va.,
201 F. Supp. 620 (W.D. Va. 1962), rev’d, 308 F.2d 
918 (4th Cir. 1962) ........................................... ...........  14

Jackson v. School Board of City of Lynchburg Va.,
203 F. Supp. 701 (W.D. Va. 1962), rev’d, 321 F.2d 
230 (4th Cir. 1963) ......................................................  14

Jones v. School Board of Alexandria, Va., 278 F.2d 72 
(4th Cir. 1960) ...................................... .......................  14

Marsh v. School Board of Roanoke County, 305 F.2d 
94 (4th Cir. 1962) ......................................... .......... . 14

Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) ....... 14

Roberts v. Stell, 379 U.S. 933 .........................................  3

Stell v. Savannah-Chatham County Board of Educa­
tion, 220 F. Supp. 667 (S.D. Ga. 1963) ......................  2

Stell v. Savannah-Chatham County Board of Educa­
tion, 318 F.2d 425 (5th Cir. 1963) ............................. 2

PAGE



I ll

Stell v. Savannah-Chatham County Board of Educa­
tion, 333 F.2d 55 (5th Cir. 1964) ......... ........................ 2,14

United States v. Lynd, 301 F.2d 818 (5th Cir. 1962) .... 21
United States of America and Linda Stout, et al. v. 

Jefferson County Board of Education, et al., 372
F.2d 836 (5th Cir. 1966) ............. ..... ............11,16,17,18,

19, 20, 25

Wanner v. County School Board of Arlington County,
Va., 357 F.2d 452 (4th Cir. 1966) ..............................  16

Federal Rules:

Federal Rules of Civil Procedure, Rule 24(b) .......... 21,22

Other Authorities:

Georgia Educational Directories for 1964-65 and 1966- 
67 ............... ........... .................. ......................................  18

Guidelines for School Desegregation, United States 
Department of Health, Education and Welfare, Sec­
tion 181.32

PAGE

19



IN THE

Ituttfi Btutm GJmtrt of Appeals
FOR THE FIFTH  CIRCUIT 

No. 23,724

RALPH  STELL, a minor, by L. S. STELL, JR., 
his father and next friend, et al., 

and UNITED STATES OF AM ERICA,
Appellants,

BOARD OF PUBLIC EDUCATION FOR THE CITY OF SAVANNAH 
AND THE COUNTY OF CHATHAM, et al.,

Appellees,
LAW RENCE ROBERTS, et. al.,

Appellees-Intervenors.

BOARD OF PUBLIC EDUCATION FOR THE CITY OF SAVANNAH 
AND THE COUNTY OF CHATHAM, et al.,

Appellants,

RALPH  STELL, a minor, by L. S. STELL, JR., 
his father and next friend, et al., 

and UNITED STATES OF AM ERICA,
Appellees.

APPEALS PROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OP GEORGIA

BRIEF FOR APPELLANTS RALPH STELL, ET AL.

Statement of the Case

This is an appeal from an order of Honorable Frank M. 
Scarlett, Judge of the United States District Court for 
the Southern District of Georgia, requiring the entry of a 
desegregation plan with regard to the Board of Public Ed­



2

ucation for the City of Savannah and County of Chatham. 
The order was entered April 1, 1966.

This action to bring about the desegregation of the 
school system of the City of Savannah and the County of 
Chatham was tiled in January, 1962 by plain tiff-appellant 
Ralph Stell and other students and parents in the City of 
Savannah and Chatham County. Subsequent to its tiling, 
a motion was made by certain white students and parents, 
Lawrence Roberts, et al., to intervene, which motion was 
allowed by the district court. At the trial on the merits, 
the white intervenors introduced, over the objections of 
plaintiffs, voluminous evidence which allegedly went to 
prove that Negro students were inherently inferior to 
white students. On May 13, 1963, the district court denied 
plaintiffs-appellants’ motion for a preliminary injunction 
requiring a start in the desegregation of the schools. 
Emergency relief was sought from this Court and on May 
24, 1963, it directed the district court to enter an order 
requiring the school board to submit a plan for desegre­
gation not later than July 1, 1963, pending final disposition. 
318 F.2d 425, 428.

However, the district court on June 28, 1963, on the 
basis of the evidence of the white intervenors, entered an 
order dismissing the complaint. 220 F. Supp. 667 (S.D. 
Ga. 1963). Subsequently, on June 30, 1963, the district 
court refused to approve or disapprove the plan of the 
school board submitted pursuant to this Court’s May 24th 
order, on the ground it lacked jurisdiction over the matter 
while the full appeal was pending. Subsequently, on June 
18, 1964, this Court reversed the rulings of the district 
court. 333 F.2d 55. In its opinion, the court made it clear 
that there could be no basis for refusing to require a plan 
to be entered which should bring about the full integration



3

of the public schools in the City of Savannah and Chatham 
County.

On July 7, 1964 the plaintiffs, appellants herein, filed 
a motion for a judgment in accordance with the opinion 
and mandate of this Court (R. 14). In that motion, plain­
tiffs also requested that the district court dismiss the in- 
tervenors from the action. On August 31, 1964, the de­
fendant school board submitted a plan for desegregation 
of the schools under its jurisdiction (R. 15-17). Also on 
August 31, 1964, the plaintiffs-appellants filed objections 
to the desegregation plan (R. 18-20). On September 25, 
1964, the district court, upon agreement by all counsel, 
entered an order delaying any order and judgment on the 
plaintiffs-appellants’ objections to the desegregation plan 
on the grounds that the white intervenors had filed a 
petition for writ of certiorari in the United States Su­
preme Court from the decision of this Court (R. 20-22). 
On December 7, 1964, the United States Supreme Court de­
nied the petition for certiorari {Roberts v. Stell, 379 U.S. 
933).

Subsequently, on January 25, 1965, the plaintiffs-appel­
lants moved the court for an order on their objections to 
the pending plan filed by the defendant school board (R. 
23-24). On March 9, 1965, a hearing was had on the ques­
tion of the adequacy of the proposed plan of the defendant 
school board (R. 25-117). At that hearing the intervenors 
requested the court to again take into consideration the 
evidence they had introduced before that allegedly went 
to show that Negro students could not adequately par­
ticipate in schools with white students. The court agreed 
to consider that evidence over the objections of the plain­
tiffs-appellants (R. 105-107).

On May 10, 1965, plaintiffs renewed their motion to 
dismiss the intervenors, with costs and attorneys’ fees



4

(E. 4-9). The basic ground for the motion was that the 
presence of the intervenors in that case had served to 
increase the complexity of the original issue of the case, 
i.e., whether the public schools were operated on a segre­
gated basis. Further, the participation of the intervenors 
had and would continue to serve to delay and hinder 
judicial supervision of the desegregation of the Chatham 
County public schools with all deliberate speed. The plain­
tiffs also alleged that the presence of the intervenors had 
resulted in a great increase in litigation costs and at­
torneys’ fees and would continue to do so in the future 
(E. 8-9).

On June 9, 1965, the defendant school board tiled an 
amendment to its original and amended desegregation 
plan previously tiled in the district court (E. 118). On 
August 24, 1965, the district court entered an order on 
the plan of desegregation submitted by the defendant 
school board (E. 119-30; Second Supplemental Printed 
Eecord 1-12). In that order the court again recited various 
evidence which allegedly showed that Negroes were of a 
lower I.Q. than white students. On the basis of this evi­
dence, the court disapproved the plan tiled by the defen­
dant school board and the defendants were ordered to 
prepare and submit a plan of desegregation that would

assure that integration may be accomplished in such 
a manner as to provide the best possible education 
for all school children with the greatest benefits to all 
school children without regard to race or color, but 
with regard to similarity of ages and qualifications 
(E. 129).

The court further ordered that the school board should 
continue to collect and give effect to test results “so that 
race and color as such shall play no part in the assignment



5

of school children or teachers and so that classifications 
according to age and mental qualifications may be made 
intelligently, fairly and justly” (E. 130). The court failed 
to rule on the plaintiffs’ renewed motion to dismiss the 
intervenors from the action.

On September 1, 1965, the defendant school board filed 
with the district court a motion for a new trial and motion 
to amend the judgment (R. 131-36). This motion basically 
alleged that the court’s judgment of August 23, 1965, erred 
in disapproving the disallowing the plan submitted by the 
school board and in requiring the board to present “ an 
entirely new Plan based upon intelligence, aptitudes, ages 
and qualifications” (R. 133). The board objected to the 
order on the ground that to comply with it required a com­
plete reorganization of the public school system, a complete 
reorganization of personnel, an overwhelming burden on 
the school system, and would tend to create discrimina­
tions and conflicts among students by segregating them 
on the basis of intelligence (R. 134-35). The school board 
further alleged that it had been operating under a plan 
since July 1963 based upon freedom of choice and hence 
under a plan which complied basically with the constitu­
tional requirements established by the United States Su­
preme Court and by this Court (R. 136). On the same 
day, September 1, 1965, the court signed a show cause 
order requiring that all parties appear on November 3, 
1965 to show cause why the motion of the school board 
should not be granted (R. 137-39).

On November 3, 1965, at the hearing, without prior 
notice, the intervenors served a copy of a new suggested 
order on a desegregation plan which was entirely at 
variance with any plans theretofore filed or suggested by 
the defendant school board (R. 143). The plaintiffs-appel- 
lants requested and were granted an extension of time to



6

permit study of the intervenors’ new plan. On November 
9, 1965, the plaintiffs filed their objections to the inter­
venors’ new desegregation plan (R. 142-45), alleging that 
the plan was “entirely in conflict with the Fifth Circuit’s 
orders in this case and any other applicable decisions” 
(R. 144). It was further alleged that the plan, if ap­
proved, would remove freedom of choice as required by 
the decisions of this Court and replace it with a pupil 
assignment plan under which pupils would be initially 
assigned to segregated schools and/or classrooms, and 
under which pupils desiring transfer would be subjected 
to “onerous requirements and such transfers would be 
subjected to so many tests and subjective standards as 
to permit no objective review of the basis for such as­
signments” (R. 144). The motion also renewed the plain­
tiffs’ motion made in May, 1965 to dismiss the intervenors 
and to grant costs and attorney fees against them. The 
plaintiffs also moved for further relief, requesting that 
the court enter an order requiring a school desegregation 
plan in compliance with subsequent decisions of this court 
(R. 144-145).

On the same day, November 9, 1965, the United States 
of America moved to intervene in the case under the 
provisions of the Civil Rights Act of 1964 and filed its 
objections to the proposed plan for desegregation sub­
mitted to the district court on November 3 (R. 139-42). 
On January 20, 1966, the United States filed proposed 
findings of facts and conclusions of law relating to the 
matters in their petition for intervention and in their 
objections to the desegregation plan (R. 146-50).

On March 10,1966 the defendant Board of Public Educa­
tion filed a copy of a resolution of the Board of Public 
Education setting forth the proposed plan of desegrega­



7

tion under which the Board would operate for the school 
years 1966-67 and 1967-68 (R. 150-170).

On April 1, 1966, the district court entered its order 
on the plan of desegregation, the order from which the 
present appeals to this Court have been taken (Sup­
plemental Printed Record (S.R.) 2-27). The order made 
findings of fact, setting out briefly many of the facts 
stated above, except that the court found that the counsel 
for plaintiffs-appellants filed no objections to the plan 
submitted by the white intervenors on November 3, 1965 
(S.R. 3). This finding of fact, however, is clearly contra­
vened by the record in the case (R. 142-45). In its opinion 
the court made extensive conclusions to the effect that 
Negroes were inferior in intelligence to whites and that 
full and complete integration in the school system would 
have a deleterious effect on both white and Negro pupils. 
The court therefore ordered that the defendant school 
board be enjoined from maintaining in the school system 
any distinctions based upon race or color, but the school 
board was “enjoined and required to maintain and en­
force distinctions based upon age, mental qualifications, 
intelligence, achievement and other aptitudes upon a uni­
formly administered program” (S.R. 25). The court fur­
ther went on to order that no differential be made between 
Negro and white school teachers on the basis of their 
relative achievement on teacher examinations. Integration 
of teaching staff was deferred for a further hearing and 
order until the desegregation order was put into effect 
(S.R. 26). Except as modified by the order, the revised 
plan of desegregation submitted by the white intervenors 
was allowed and approved and made a part of the order 
(S.R. 27). Thus the actual desegregation plan entered by 
the court was that submitted by the white intervenors, 
as set out in the Second Supplemental Printed Record 
(S.S.R.) at pp. 12 to 18.



8

The plan enjoins the board from making distinctions 
based on race or color. It allows the school board to take 
into consideration the assignment, transfer or continuance 
of pupils within the schools, classrooms and other facili­
ties, the choice of the pupil or his parent, the availability 
of space, proximity of the school to the residence of the 
pupil, and the age and mental qualifications of the pupil 
(S.S.R. 12-13). “Where space and facilities are not avail­
able for all, priority shall be based on proximity, except 
that for justifiable educational reasons and in hardship 
cases other factors not related to race may be applied” 
(S.S.R. 13). The board was given the authority to es­
tablish attendance areas. Assignments and transfers of 
pupils were required to be made on forms which would 
be available at the Office of the Superintendent of Educa­
tion (S.S.R. 14). Applications were required to be signed 
by the parent or the legal guardian of the child. Action 
on each application was required to be made within 15 
days after application was made (S.S.R. 14). If a parent 
or guardian had any objection to the determination made, 
administrative procedures for hearing such objections were 
provided in the plan (S.S.R. 14-16). If the school board 
determined from an examination of the record made upon 
objections to the assignment of the pupil, or upon an ap­
plication for assignment to a designated school that a 
pupil is between his “seventh and sixteenth birthdays and 
is mentally or physically incapacitated to perform school 
duties, or that any such pupil is more than sixteen years 
of age and is maladjusted or mentally or otherwise re­
tarded so as to be incapable of being benefited by further 
education,” the board was authorized to assign the student 
to a vocational or special school, or to terminate the 
public school enrollment of the student altogether (S.S.R. 
p. 16). The plan was amended to include all school grades 
for the year 1966-67 (S.S.R. pp. 16-17). Separation of boys



9

and girls in separate classes or in separate schools were 
authorized (S.S.R. 17).

The crucial paragraph in the plan is paragraph 14. This 
paragraph, which is set out in full in the footnote below, 
states in effect that assignments are to be made on the 
basis of mental qualifications, “such as intelligence, achieve­
ment, progress rate and other aptitudes,” to be determined 
on the basis of nationally standardized tests. “No student 
shall have the right to be assigned or transferred to any 
school or class the mean I.Q. of which exceeds the I.Q. of 
the student, nor shall a student be assigned or transferred 
to any school or class, the mean I.Q. of which is less than 
that of the student, without the consent of the parent or 
guardian” (S.S.R. p. 17).1

Plaintiffs-Appellants filed their notice of appeal from 
the April 1st order on April 19, 1966 (R. 10-11). The 
United States of America and the defendant Board of 
Education also filed notices of appeal. Subsequently, the 
Board of Education moved this Court for a stay of the 
judgment and decree of the district court. This motion 
was joined in by the plaintiffs-appellants and by the United 
States and was granted by a panel of this Court on June

1 The entire text of paragraph 14 is as follow s:
14. In addition to the criteria hereinbefore set forth, the Defen­

dant Board shall in making or granting assignments and/or transfers 
take into consideration the similarity of mental qualifications, such 
as intelligence, achievement, progress rate and other aptitudes, such 
to be determined upon the basis of Nationally standardized tests. No 
student shall have the right to be assigned or transferred to any 
school or class the mean I.Q. of which exceeds the I.Q. of the student, 
nor shall a student be assigned or transferred to any school or class, 
the mean I.Q. of which is less than that o f the student, without the 
consent of the parent or guardian. New students coming into the 
system or moving from one district to another shall be assigned to 
their normal neighborhood school. I f  a new student is not satisfied 
with his school assignment, then his case will be handled as that of 
any other student requesting a transfer.



10

7, 1966. The effect of the stay was to leave in full force 
and effect the plan of desegregation adopted by the board 
on March 8, 1966, and filed in the district court March 10th 
(R. 150-170). The plan under which the school board is 
presently operating has been set out in the brief on appeal 
of the board, together with an affidavit by the Superin­
tendent of Schools explaining the present situation in the 
schools (Brief for Appellant, the Board of Public Edu­
cation for the City of Savannah and the County of Chat­
ham, pp. 7-19).

Specifications of Error

1. The court below erred in entering an order requiring 
the adoption of a plan of desegregation whose intent and 
purpose was to perpetuate the segregation of the races in 
the school system of the City of Savannah and the County 
of Chatham and which deviated in every material aspect 
from the requirements established by the Fourteenth 
Amendment to the Constitution and the decisions of the 
Supreme Court of the United States and this Court.

2. The court below erred in denying plaintiffs-appellants’ 
repeated motions that the white intervenors be dismissed 
from this action and that costs and attorneys’ fees be 
awarded against them.



11

ARGUMENT

I.

The District Court Below Is Required to Enter a 
Plan for the Desegregation of the School System in 
the City of Savannah and County of Chatham Which 
Substantially Complies With This Court’ s Decision in 
United States of America and Linda Stout v. Jefferson 
County Board of Education.

This section of the brief will discuss two questions. The 
first is the adequacy of the plan entered by the district 
court in its order of April 1, 1966, from which the present 
appeal is being taken. The second question deals with the 
relief that this Court should grant in light of the plan that 
the school system is presently operating under as set out 
in the brief filed by the Board of Public Education in this 
appeal.

A. The plan entered by the district court failed in 
every respect to comply with the requirements of 
the Constitution of the United States and the deci­
sions of the Supreme Court of the United States 
and of this Court.

As may readily be seen by the Statement of Facts above 
and by a reading of the record in this case, this litigation 
has pursued a long, complex and tortured course. This 
has come about by the actions of the white intervenors 
who have introduced and reintroduced lengthy testimony 
which purports to establish that Negro students are in­
herently inferior to white students and therefore the two 
groups should not be educated together. The first result 
of this evidence was the attempt of the district court 
effectively to overrule the decision of the United States



12

Supreme Court in Brown v. Board of Education, 347 U.S. 
483.

The second result forms the basis of the present appeal. 
The district court below, upon remand by this Court, rely­
ing on the same testimony that was rejected by the decision 
of this Court, entered a plan whose evident intent was to 
hold to an absolute minimum the amount of integration 
in the public schools of Savannah and Chatham County. 
This order was entered in the face of the opinions of this 
Court and in the face of the school board’s attempt to 
enter and operate under a freedom-of-choice plan which 
complied in many respects with the decisions of this Court. 
Instead of allowing the school board to operate under such 
a plan, the district court attempted to impose upon the 
public schools an entirely different and novel plan which 
would require the school board to segregate or group 
students according to purportedly objective measurements 
of their I.Q.’s.

There are two basic flaws of the district court’s approach. 
First, the actual plan it entered had for its purpose and 
would have the effect of freezing Negro students in seg­
regated schools, as will be demonstrated below. The 
second flaw arises from the fact that there is no consti­
tutional basis whatsoever for a federal district court re­
quiring a school board to group students according to 
their I.Q. when the school board has made a judgment 
that such grouping wmuld not be in the best educational 
interest of its pupils.

The purpose and intent of the district court’s plan is 
evident from the court’s reliance, for a second time, on 
the evidence introduced by the white intervenors and by 
the court’s interpretation of that evidence as showing that 
Negroes are inherently inferior to whites and therefore



13

should not be educated with them. The effect of the plan, 
if it were allowed to go into operation, is readily apparent 
from an examination of it. It is crucial to bear in mind 
that the school system lias had a history of white students 
being assigned initially to white schools in their attendance 
zones and Negro students being assigned to Negro schools 
in their attendance zones. Under the plan, a Negro student 
seeking to transfer out of the school to which he has been 
assigned must go through an onerous and burdensome 
administrative process.

Paragraph 14 of the plan, the crucial paragraph, pro­
hibits, in effect, the school board from transferring a stu­
dent to any school or class “ the mean I.Q. of which exceeds 
the I.Q. of the student.” What is apparently meant by the 
term “mean I.Q.” is the arithmetical mean or average I.Q. 
of all the students in the class or in the school. The 
arithmetical mean or average is calculated by adding to­
gether the I.Q.’s of all the students in the class for the 
school and dividing that sum by the number of students 
in the school or class. It is elementary that in any group 
so averaged there must be students with I.Q.’s below the 
mean, unless the wholly unlikely situation exists where an 
entire school or class has exactly the same I.Q. Thus the 
plan does not require that no student with an I.Q. below 
the average may be educated with students whose I.Q.’s 
are at or below the average; quite the contrary. Since 
there obviously must already be students in the school with 
I.Q.’s below the mean, all the plan does is discriminate 
against students who are not already in the school and 
who may have I.Q.’s below the mean. It prohibits them 
from transferring in even though their I.Q. may be equal 
to or above the I.Q. of students already in the school. Of 
course, and not surprisingly, the students who would be 
attempting to transfer into the school, and who hence



14

might be barred from so doing by the plan, are Negro 
students attempting to leave all-Negro schools. Cf., Jones 
v. School Board of Alexandria, Va., 278 F.2d 72, 77 (4th 
Cir. 1960). It is clear that such a disparity in the treat­
ment of Negro students from white students who have 
been initially assigned to white schools is not permissible. 
Other circuits have struck down similar schemes when they 
have been used by school boards. Green v. School Board 
of City of Roanoke, Va., 304 F.2d 118, 122-23 (4th Cir. 
1962); Marsh v. School Board of Roanoke County, 305 
F.2d 94, 96 (4th Cir. 1962); Norwood v. Tucker, 287 F.2d 
798, 807-09 (8th Cir. 1961); Jackson v. School Board of 
City of Lynchburg, Va., 201 F.Supp. 620, 623-25 (W.D. Va. 
1962), rev’d, 308 F.2d 918 (4th Cir. 1962).2

The second and more fundamental defect in the district 
court’s approach lies in the court’s assumption that it 
could require a school board to group students according 
to I.Q.’s. There is nothing whatsoever in the Constitution 
or decisions of the federal courts which prohibits a school 
board from educating together students of varying I.Q.’s. 
The district court’s attempted reliance on language in 
both Brown v. Board of Education and in this Court’s 
decision in the present case was misplaced. The Brown 
decision recognized that a school hoard might make, at 
least in a case otherwise free from taint of racial discrim­
ination, distinctions between students of different educa­
tional ability and age. And, this Court stated in Stell:

In this connection, it goes without saying that there is 
no constitutional prohibition against an assignment of 
individual students to particular schools on the basis 
of intelligence, achievement or other aptitudes upon a

2 For connected decisions in the same case see, 203 F.Supp. 701 (W.D. 
Va. 1962), rev’d, 321 F.2d 230 (4th Cir. 1963).



15

uniformly administered program but race must not be 
a factor in making the assignments. However, this is 
a question for educators and not courts. 333 F.2d at 
61-62.

The crucial language in this quote is to the effect that 
there is no constitutional prohibition against such assign­
ment and that this is a “ question for educators and not 
courts.”

It must be kept in mind what this case does and does 
not involve. In a situation where the school board itself 
has come forward and presented a plan which incorporates 
the testing of I.Q.’s and the grouping of students accord­
ing to intelligence or other ability factors as a result of 
the school board’s own educational judgment, the case 
would involve the question of the validity of such an ar­
rangement and the duties of a school system -with a prior 
history of racial segregation. Such a plan might or might 
not be valid depending on its effect and its purpose. (See 
cases cited supra.)

This, however, is not such a case. Here, the district 
court has attempted to impose such a system on the school 
board. The school board, however, has made an educa­
tional judgment that it does not want to group students 
according to I.Q. Rather, it feels that such a system 
would result in feelings of discrimination and tension 
between students (R. 134-35). In addition, such a system 
would impose great administrative burdens on the school 
board (R. 134-36). In the school board’s judgment it de­
sires to operate the school in basically the same way 
educationally as it has in the past, that is, without group­
ing of students according to I.Q.’s. As this Court said 
in Stell, such a judgment is for the school board as ed­
ucators, and the district court had neither the power nor



16

the right to substitute its educational judgment for that 
of the board. See, Wanner v. County School Board of 
Arlington County, Va., 357 F.2d 452, 456 (4th Cir. 1966).

The only possible legal basis for the lower court’s judg­
ment is that there is some kind of constutional right of 
public school pupils to be associated in classrooms and 
schools only with pupils whose I.Q.’s are the same as theirs. 
There is, however, no such constitutional right, and hence 
the court’s order is without legal basis.

B. This Court should enter an order directing the 
district court to enter an order substantially in 
accordance with this Court’s proposed decree in 
the Jefferson County case.

If this were an ordinary appeal from an order of a 
district court in a school case, plaintiffs-appellants prob­
ably would have filed a motion for summary reversal and 
remand for reconsideration in light of this Court’s opinion 
in United States and Linda Stout, et al. v. Jefferson 
County, et al., 372 F.2d 836 (5th Cir. 1966), aff’d on re­
hearing en banc, March 29, 1967. However, as it has been 
demonstrated above, this is in no way an ordinary school 
case. Thus, plaintiffs-appellants feel it necessary to dis­
cuss the nature of the relief that should be granted and 
to urge upon the court the necessity for directing the 
lower court to take proper action.

It has been shown that the order entered by the district 
court is totally at variance with constitutional requirements 
and with the orders and decisions of this Court. How­
ever, the school system of Savannah and Chatham County 
has never operated under the plan set out by the lower 
court. After notices of appeal were filed from the April 
1st order, the school board requested this Court for a 
stay of that order, which request was joined in by the



17

plaintiffs-appellants and the United States. The stay was 
granted, having the effect of permitting the school hoard 
to continue to operate under the plan which it had adopted 
by resolution on March 8, 1966. The plan as presently 
in effect and as presently operating has been set out by 
the school board in its brief. The school board urges that 
it should be allowed to continue to operate under that 
plan and it points out that it is a freedom-of-choice plan 
in which all students are required to make choices, and 
that under it it is expected that a substantial amount 
of desegregation will take place in this coming school 
year with 6500 Negro students attending formerly all- 
white schools. The school board urges that their plan is 
sufficiently in compliance with the Jefferson County decree.

It is the position of plaintiffs-appellants that the Jeffer­
son County decision requires that all district courts in 
the Fifth Circuit enter decrees that substantially comply 
with the proposed decree in that case, unless it is shown 
for good reason that variations on the plan are proper. 
Plaintiffs-appellants concede that the plan under which 
the school board is now operating complies in many im­
portant respects with the Jefferson County decree. How­
ever, they also contend that there are substantial varia­
tions from that decree which may impede the plan’s effec­
tiveness in bringing about a totally integrated school 
system.

One of the crucial questions concerning the plan con­
cerns standards for the determination of choice applica­
tions. Although all students are required to exercise a 
choice annually, it is not made clear in the plan, as it is 
made clear in the Jefferson County decree, precisely what 
the criteria are for placing students in schools if not all 
students who choose a particular school are able to be 
put into it because of overcrowding. Thus, the Jefferson



18

County decree specifies that no preference whatsoever is 
to be given students because of their prior attendance in 
the school. (372 F.2d at 898.) There is no such statement 
in the school board’s plan here, and the absence of such 
a statement is a crucial defect. In Paragraph 111(h), cer­
tain factors for determining choices are enumerated. Some 
of them, such as “ education and courses” of the students, 
and “discipline” are not at all clear. Thus, plaintiffs- 
appellants feel it is essential that the district court be 
ordered to require an amendment of the plan which 
clarifies the question of preference and the question of 
the criteria for determining choices.

Another substantial question, and one which cannot be 
fully explored in this Court but must wait upon a remand, 
is that of the attendance zones established by the school 
system. The attendance zones and the schools in them 
are set out on page 18 of the school board’s brief. In 
preparing their brief, plaintiffs-appellants have attempted 
to discover, using the Georgia Educational Directories for 
1964-65 and 1966-67, issued by the State Superintendent 
of Schools, which schools in each attendance area are 
formerly all-white and formerly all-Negro. The distribu­
tion of such schools, to the best determination of plain­
tiffs-appellants, varies considerably from attendance area 
to attendance area.3

3 Thus, in Area 1, there are 13 formerly all-Negro schools and 6 for ­
merly all-white schools. Negro: Bartow; Jackson; Pearl Smith; Butler; 
Barnard; Gadsden; Henry; Anderson; East Broad; Hubert; Spencer; 
Florence; Thirty-Eighth St. W hite: Massie; Riley; Herty; Pennsylvania 
Avenue; Thirty-Seventh St.; Whitney.

In Area 2, the distribution is approximately equal, with 4 formerly 
all-Negro schools and 5 formerly all-white schools. Negro: Hodge; De 
Renne; Haven; Johnson. W hite: Ellis; Pulaski; Jacob G. Smith; Low; 
Thunderbolt.

In Area 3, there are no formerly all-Negro schools and 5 formerly all- 
white schools. W hite: Heard; Hesse; Isle o f H ope; White Bluff; Windsor 
Forest.



19

Plaintiffs-appellants urge that this Court adopt as the 
governing rule concerning such zones the guidelines for 
school desegregation of the Department of Health, Educa­
tion and Welfare. Section 181.32 states that:

A school system planning . . .  (2) to include more than 
one school of the same level in one or more attendance 
zones and to offer free choice of all schools within 
such zones, must show that such an arrangement will 
most expeditiously eliminate segregation and all other 
forms of discrimination.

Thus, the validity of the attendance zones here, insofar 
as the school board must show that they do not limit the 
possibility of free choices by Negro students to transfer 
into all-white schools and do not restrict the elimination 
of schools with completely Negro student bodies, is a 
question that can only be resolved on remand to the court 
below and after a full evidentiary hearing.

A reading of the other provisions of the school board’s 
plan also shows substantial variations from the Jefferson 
County decree. Thus, there is no allowance for students 
15 years of age or over or for students in the ninth grade 
or above making their own free choice without the need 
of the signature of a parent. There is also no requirement

Area 4 comprises 2 formerly all-Negro schools and 6 formerly all-white 
schools. Negro: Haynes; Tompkins. W hite: Bloomingdale; Pooler;
Sprague; Port Wentworth; Strong; Gould.

Area 5 contains no formerly all-Negro schools and 2 formerly all-white 
schools. W hite: Howard; Tybee.

The attendance areas Nos. 1 and 2 for secondary schools each comprise 
an equal number of formerly all-Negro and all-white schools. Attendance 
A rea 1.—  Negro: Tompkins; Scott. W hite: Groves; Mercer. Attendance 
Area 2 —  Negro: Beach Senior; Cuyler; Beach Junior; Hubert. White: 
Savannah High; Chatham; Shuman; Wilder.

Attendance Area 3 for secondary schools consists of 1 formerly all- 
Negro school and 5 formerly all-white schools. Negro: Johnson. White: 
Jenkins; Myers; Bartlett; Savannah High; Windsor Forest.



20

for publication of the notice and for the mailing of it and 
choice forms to all students in the school system. The 
provision for transportation is not as detailed as the 
one in the Jefferson County decree, and there are no provi­
sions prohibiting harassment or requiring the school board 
to act against harassment that occurs.

The provision as regard to faculty and staff is clearly 
inadequate when compared to the Jefferson County decree. 
It only provides that shifts in faculty shall be made when 
vacancies in the faculty of the existing school occur. The 
desegregation of faculty planned for the school year 
1967-68 involves only supervisory and administrative per­
sonnel and special teachers. There is no desegregation 
of regular classroom teachers. The Jefferson County 
decree requires much more; i.e., the affirmative assign­
ment of school teachers at the present time regardless 
of present assignments in order to bring about immediate 
faculty desegregation for the coming school year. (372 
F.2d at 900.)

There is a total absence in the plan of provisions for 
the equalization of school facilities, for the examination 
of construction of new schools and for periodic reports to 
be made to the court and to opposing counsel on the 
progress of the school plan.

In view of these substantial deviations from the Jeffer­
son County decree and in view of the history of the litiga­
tion in this case, plaintiffs-appellants urge that this Court 
must not merely reverse the decision of the court below 
but direct it to enter an order requiring the adoption of 
a plan for desegregation in substantial compliance with 
the Jefferson County decree, allowing only such variations 
as may be required, on a showing of the school board,



21

because of particular circumstances that may exist in the 
Savannah-Chatham County school system.

II.

The White Intervenors Should Be Dismissed From 
This Action With Costs and Attorneys’ Fees Because 
Their Presence Has Unduly Delayed and Prejudiced 
the Adjudication of the Rights of the Original Parties 
to This Action Within the Meaning of the Federal Rules.

On three occasions the plain tiff s-appellants moved the 
district court to dismiss the white intervenors, Lawrence 
Roberts, et al., from this action on the grounds that they 
had only served to complicate the issues in the case and 
to cause substantial delays in the district court’s render­
ing the decision required by the Constitution and the de­
cisions of the federal courts (R. 14, R. 4-9, R. 144). Al­
though there is nothing in the record to show an express 
denial of the motions, the court’s failure to rule on them 
was in effect a denial. See, United States v. Lynd, 301 
F.2d 818 (5th Cir. 1962).

Although plaintiffs-appellants have not found any case 
which specifically deals with the question o f a later dis­
missal of parties who have been allowed to intervene 
under Rule 24(b), the permissive intervention provision 
of the Federal Rules of Civil Procedure, they contend 
that the Court does have the power to subsequently dis­
miss such an intervening party where it clearly appears 
that they have only served to “unduly delay or prejudice 
the adjudication of the rights of the original parties,” 
F.R.C.P. 24(b). Thus, this Court should apply the same 
standards as would be applied in reviewing the initial



22

allowance or denial of a motion to intervene under Rule 
24(b).4

An examination of the record in this case, as set out in 
the statement of the case above, demonstrates conclusively 
that the only function that the intervenors have performed 
has been to delay, by years, the entry of an order as re­
quired by law in this action. The action was filed in Janu­
ary, 1962. At that time the issues were clear-cut; that is, 
it was an action between Negro students who were denied 
the constitutional right to be taught in desegregated 
schools, and the school board responsible for the mainte­
nance of segregated schools. The intervention of Lawrence 
Roberts, et al., who purported to represent the interests 
of white students in the schools, was allowed by the dis­
trict court in that year. Action on the complaint and 
motions for injunction of the plaintiffs was delayed in 
order to allow the white intervenors to introduce lengthy 
evidence purporting to show the inferiority of Negro 
pupils to white pupils. The result of this was the denial 
of all relief to the Negro plaintiffs and the dismissal of 
their action by the district court. This necessitated an 
emergency appeal to this court for an order requiring the 
district court to have the school board file a plan for 
desegregation. Despite the mandate of that court, the dis­
trict court failed to rule on the adequacy of the plan filed 
by the school board and the plaintiffs’ objections to that 
plan because of the pending appeal in this Court.

This Court handed down its opinion in May of 1964 
remanding the case, with directions for an entry of a plan 
of desegregation. The plaintiffs then moved for an order 
in compliance with this Court’s mandate in the district

4 See, Archer v. United States, 268 F.2d 687, 690 (10th Cir. 1959); 
Carroll v. American Federation of Musicians o f TJ.S. & Can., 33 F.R.D 
353 (S.D.N.Y. 1963).



23

court. Action on that motion was further delayed because 
the white intervenors had filed a petition for certiorari 
in the United States Supreme Court challenging this 
Court’s decision. After the Supreme Court denied the 
petition for certiorari late in 1964, plaintiffs renewed their 
motions for an order on the school plan. The school board 
filed a proposed plan and plaintiffs made appropriate 
objections to it.

At the hearing on the school board’s plan the white in­
tervenors again reintroduced the evidence that they had 
introduced previously despite the decision of this court 
and denial of certiorari by the United States Supreme 
Court. As a result of this evidence, the district court again 
failed to rule on the plaintiffs’ motion, but instead, relying 
on the intervenors’ evidence, rejected the school board’s 
plan and required it to enter a plan which would distin­
guish between pupils on the basis of their intelligence. 
The school board filed objections to this order and a motion 
for new trial, raising objections to the order and urging 
that the school board was attempting to implement a 
freedom-of-choice plan in conformity to the opinions of 
this Court.

At the hearing on the school board’s motion, the white 
intervenors, for the first time, filed a completely new plan 
which was at variance with the opinions of this Court, as 
discussed above. This required the plaintiffs to make ob­
jections to the new plan, which they did. At the same time 
they renewed their motion to dismiss the intervenors and 
moved for further relief for an entry of a plan that would 
be in conformance with opinions of this Court. The district 
court ignored the motion of the plaintiffs and indeed found 
that no such motion had been entered. Rather, on April 1, 
1966, it entered the order now appealed from which ap­
proved the plan filed by the white intervenors. This order



24

necessitated the present appeal and indeed resulted in a 
situation perhaps unique in school litigation, i.e., an appeal 
from the order not only by the Negro plaintiffs and the 
United States of America, which had in the meantime inter­
vened under the Civil Rights Act of 1964, hut hy the 
school hoard itself.

Thus, at the present time, five years after the initiation 
of the litigation hy the plaintiffs-appellants there has yet 
to be entered by the district court an order granting the 
relief which the plaintiffs are clearly entitled to under law. 
This delay, the repeated appeals, and the complexity of 
the case have resulted solely because of the white inter- 
venors. The school board itself wishes to carry out a plan 
of desegregation according to what it believes are the 
requirements of the Constitution and the decisions of this 
Court. It is true that it is presently operating under a 
plan, but, as stated above, plaintiffs-appellants have made 
objections to prior plans and have objections to the present 
one. The resolution of these issues, the only ones legiti­
mately present in this action, has been prevented because 
of the continued attempts, successful to date, of the white 
intervenors to interject issues which are irrelevant, which 
were decided against them in 1954 by the Supreme Court 
of the United States and which have had the purpose and 
intent of preventing or minimizing the desegregation of 
the school system of the City of Savannah and the County 
of Chatham. Cf., II. K. Ferguson Co. v. Nickel Processing 
Corp. of N.Y., 33 F.R.D. 268, 275 (S.D.N.Y. 1963). Of 
course, this has resulted in the multiplication of the costs 
of plaintiffs-appellants and in otherwise unnecessary ex­
penditures of considerable time and effort by many 
attorneys.

Thus, it is clear that the participation of the white in­
tervenors has served solely to delay and prejudice the



25

adjudication of the rights of the original parties, that is, 
the Negro plaintiffs and the school board. For this reason, 
it is appropriate in this case for the Court to enter an 
order dismissing the white intervenors from the action or 
at least to assess all costs of the action, together with 
reasonable attorneys’ fees, against them.

CONCLUSION

For the foregoing reasons the decision of the court 
below must be reversed and the cause remanded with in­
structions to enter a plan in conformance with this Court’s 
opinion and decree in the Jefferson County case and to 
dismiss the white intervenors, Lawrence Roberts, et al.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen R alston 
H enry M. A ronson

10 Columbus Circle 
New York, New York 10019

E. H. Gadsden

458% W. Broad Street 
Savannah, Georgia

Attorneys for Appellants 
Ralph Stell, et al.



26

Certificate of Service

This is to certify that the undersigned, one of the at­
torneys for appellants, served a copy of the foregoing 
Brief for Appellants upon Basil Morris, Esq., P.O. Bos 
396, Savannah, Georgia, and Honorable E. Freeman 
Leverett, Deputy Assistant Attorney General, State of 
Georgia, Elberton, Georgia, attorneys for appellees; R. 
Carter Pittman, Esq., P.O. Box 891, Dalton, Georgia, and
J. Walter Cowart, Esq., 504 American Building, Savannah, 
Georgia, attorneys for appellees-intervenors; and Frank 
M. Dunbaugh, Esq., Department of Justice, Washington, 
D.C., attorney for appellant United States of America, by 
mailing copies to them at the above addresses via the 
United States air mail, postage prepaid.

Done this day of May, 1967.

Attorney for Appellants 
Ralph Stell, et al.



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