Goss v. Knoxville, TN Board of Education Defendants-Appellees' Brief

    No. 14,425

Iy V V f t f t  f^n
£ > V I~ 7

IN THE

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.

JOSEPHINE GOSS and THOMAS A. GOSS, Infants, by 
RALPH GOSS, Their Father and Next Friend, Et A!., 

Plaintiffs-Appellants,

versus

THE BOARD OF EDUCATION OF THE CITY OF KNOXVILLE 
TENNESSEE, Et Al., 
Defendants-Appellees,

Appeal from the United States District Court for the 
Eastern District of Tennessee,

Northern Division.

DEFENDANTS-APPELLEES' BRIEF.

S. FRANK FOWLER,
CLAUDE K. ROBERTSON,

1412 Hamilton Bank Building,
Knoxville 2, Tennessee,

Attorneys for Defendants-Appellees.

FOWLER, ROWNTREE & FOWLER,
Of Counsel.

S t .  L oots L aw  P rinting  Co., I nc ., 415 N. Eighth Street. CEntral 1-4477.



COUNTER STATEMENT OF QUESTIONS INVOLVED.

I. Does the evidence establish that the adoption by the 
board of a plan of desegregation for Knoxville public 
schools at the rate of one grade a year beginning with 
the first grade, rather than at a faster rate, was necessary 
in the public interest and consistent with good faith!

The Court below answered the question Yes.
Defendants-appellees contend that the Court’s answer 

was correct.

II. Whether the constitutional rights of some of the 
plaintiff Negro school children suffered a violation under 
Brown v. Board of Education, 349 IT. S. 294, because of 
the adoption of a plan of desegregation at the rate of one 
grade a year, beginning with the first grade, so that, the 
said plaintiff children being in grade two or higher grades 
at the time the plan became effective, their annual pro­
motion will prevent the desegregation from catching up 
with them.

The Court below answered the question No.
Defendants-appellees contend that the Court’s answer 

was correct.

III. Whether the constitutional rights of the plaintiff 
Negro school children have suffered a violation through 
the adoption of a plan of desegregation which includes 
the provision that a school child of either race can choose 
not to attend a school theretofore used only by the other 
race or whose membership, or the membership of the 
child’s grade, is predominantly of the other race.

The Court below in effect answered this question No.
Defendants-appellees contend that the Court’s answer 

was correct.



TABLE OF CONTENTS OF BRIEF.

Page
Counter Statement of Questions Involved...........Prefaced
Counter Statement of F a c ts ........................................  1
Argument ......................................................................  7

Table of Cases.
Board of Education of St. Mary’s County v. Groves

(C. A. 4, 1958), 261 F. 2d 527 ..................................  14
Boson v. Rippy (C. A. 5, 1960), 285 F. 2d 43....... 19,20
Brown v. Board of Education, 347 IT. S. 483 (1954) . . 2, 8 
Brown v. Board of Education, 349 IT. S. 294

(1955) .......................................................2,3,9,10,12,13
Clemons v. Board of Education of Hillsboro (C. A. 6,

1956), 228' F. 2d 853 ................................................. 15
Cooper v. Aaron, 358 U. S. 1 ...................................... 10
Evans v. Buchanan, 152 F. Supp. 886, aff’d 256 F. 2d

688, 172 F. Supp. 508 ................................................. 11
Evans v. Ennis (C. A. 3, 1960), 281 F. 2d 385 .........10,14

^-'' Kelley v. Board of Education of Nashville (C. A. 6,
1959), 270 F. 2d 209 ................................................. 10

, /Kelley v. Board of Education of Nashville, 159 F.
Supp. 272 ..................................................................  20

/fcSwain v. County Board of Education (E. D. Tenn.),
138 F. Supp. 570 ........................................................ 4

Pettit v. Board of Education of Harford County, 184 
F. Supp. 452 .............................................................  14

vf.

Statute Cited.
49 Tenn. Code Ann. 1741-1763 20



TABLE OF CONTENTS OF APPENDIX.

Page
Stipulation Eeacl .......................................................... lb
Excerpts from Transcript of Testimony:

Excerpts from Deposition of Dr. John H. Burk­
hart ........................................................................  lb

Excerpts from Deposition of Robert B. Ray .......  7b
Excerpts from Testimony of Andrew Johnson . . .  8b
Excerpts from Deposition of R. Frank Marable. . .  16b 
Excerpts from Deposition of Mrs. J. E. Barber... 20b 
Excerpts from Deposition of Elizabeth Pearl Bar­

ber ..........................................................................  21b
Excerpts from Deposition of Theotis Robinson, Sr. 21b 
Excerpts from Deposition of Berneeze A. W ard... 23b 
Excerpts from Deposition of Donald E. Graves . . .  23b 
Excerpts from Deposition of Albert J. Winton, Sr. 24b
Excerpts from Deposition of Ralph G oss......  25b
Excerpts from Testimony of Thomas N. Johnston. 26b



No. 14,425

IN THE

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.

JOSEPHINE GOSS and THOMAS A, GOSS, Infants, by 
RALPH GOSS, Their Father and Next Friend, Et AL, 

Plaintiffs-Appellants,

versus

THE BOARD OF EDUCATION OF THE CITY OF KNOXVILLE, 
TENNESSEE, Et Al., 
Defendants-Appellees.

Appeal from the United States District Court for the 
Eastern District of Tennessee,

Northern Division.

DEFENDANTS-APPELLEES’ BRIEF.

COUNTER STATEMENT OF FACTS.

The answer of clefendants-appellees averred that the 
Knoxville public schools for generations have been oper­
ated on a segregated basis, that the Negro schools and 
schooling were as good as the white, that desegregation 
is not sought or desired by the vast majority of both races



2

in this community, that the board has been compelled to 
reconcile its duty to desegregate, as set out in Brown v. 
Board of Education, 349 TJ. S. 294, with its duty to con­
duct efficient, undisturbed and continuous schooling, un­
marred by the possibility of interruption from drastic, 
unpopular change, that the board felt that the desegrega­
tion of schools could be accomplished with a minimum of 
disruption only if undertaken in a planned, deliberate 
fashion, and that no emergency existed which compelled 
immediate preferment of the claims of the plaintiffs over 
the continued orderly teaching and training of the chil­
dren of Knoxville (32a-34a).

It was admitted by the answer that segregation of 
schools in Knoxville was required by the Constitution of 
1870 of the State of Tennessee and statutes enacted there­
under (30a). Segregation was a part of the social pattern 
of Knoxville (93a, 270a).

It was stipulated that at the close of school in June, 
1960, the school system of Knoxville consisted of 40 
schools, total enrollment of 22,448 students, of whom 4,786 
were Negro students and 17,662 were white, that of 879 
principals and teachers, 712 were white and 167 were 
Negro, that the quality of teaching for Negroes was equal 
to that for white pupils, that there is no difference in the 
salary schedule of Negro teachers and white teachers and 
that the physical facilities for both white and Negro 
pupils were excellent (52a).

On May 17, 1954, the Supreme Court announced its first 
opinion in Brown v. Board of Education, 347 IT. S. 483. 
This was promptly called to the attention of the Board 
of Education of Knoxville, who decided to await the 
further clarification promised by the Supreme Court 
(217a-218a, 237a). At this early date the Board felt that 
desegregation in Knoxville would present very few prob­
lems (226a).



On May 31, 1955, the Supreme Court announced its sec­
ond opinion in Brown v. Board of Education, 349 IT. S. 
294.

On June 15, 1955, Thomas N. Johnston became Superin­
tendent of Knoxville City Schools (219a, 269a).

On June 16, 1955, Mr. Johnston convened his adminis­
trative staff to decide how best to comply with the Brown 
decree (26b).

On July 8, 1955, the staff met with the Board of Educa­
tion for the same purpose (26b, 220a).

Before July 20, 1955, a committee went to Evansville, 
Indiana, and reported back to the Knoxville Board as to 
how desegregation had been effected there (26b).

On July 20, 1955, a meeting of white school principals, 
staff and board members was held. At that time the 
grade-a-year plan was first suggested (27b).

In the first week of August, 1955, a meeting was held 
of Negro principals, staff and board members (27b).

On August 2, 1955, a series of staff meetings began 
(28b).

On January 26, 1956, a meeting was held of Negro prin­
cipals and general supervisors (28b).

On February 2, 1956, began a series of joint meetings 
of white and Negro principals (29b).

On March 7, 1956, as a result of study by this group 
eight different plans, or different combinations of grades 
in step desegregation, were suggested to the board (30b, 
227a). The Superintendent submitted a compilation of 
materials to the board (127a).

At this point of time the ominous situation at Clinton, 
Tennessee (only eighteen miles from Knoxville) began to 
claim attention: On January 4, 1956, the United States

__ t>__



4 —

District Court at Knoxville (the same Court and Judge 
from which this appeal is taken) had ordered desegrega­
tion of the Clinton High School beginning with the fall 
term on August 27, 1956 (59a). McSwain v. County Board 
of Education, 138 F. Supp. 570. Before August 27th there 
were occurrences indicating this desegregation would be 
disorderly (130a-131a). This was a source of worry to 
the Knoxville Board (229a). This deterrent to desegrega­
tion (130-131a) coupled with the demands upon the board 
members’ time flowing from an extensive building pro­
gram (169a-171a, 223a-224a, 255a-256a, 337a, lib) and 
normal tedious budget planning (227a, 228a), and the 
wisdom of protecting new buildings from vandalistic de­
struction (231a) as well as protecting the children them­
selves from disorder and harm (34b) made the Knoxville 
Board feel that it would be wise to wait and see how 
the Clinton desegregation order should work out (232a).

The Clinton experience in the fall of 1957 was bad. 
There were mass meetings and mobs, threats to lives of 
the school Principal and Negro students, mobilization 
of National Guardsmen 600 strong and concentration also 
of 100 State Highway Patrolmen in Clinton, a parade of 
hooded individuals in 125 automobiles, blasting of a Negro 
home, rock and egg throwing, 16 arrests for violating an 
order of the United States District Court, and an investi­
gation by the Federal Bureau of Investigation upon direc­
tion from the Attorney General of the United States (59a- 
60a). The unrest continued: One year later, on October 
5, 1958, the Clinton High School was to suffer bomb dam­
age in excess of $250,000.00 (63a). In the meantime 
serious disturbances of the same nature occurred in the 
sister city of Nashville, Tennessee, as well as in Little 
Rock, Arkansas (62a) and like trouble was openly threat­
ened for Knoxville, notably by John Kasper (61a-62a, 
235a).



—  0

The District .Judge brought his own testimony to this 
record. The Court was “ concerned—gravely concerned— 
with the incidents of unrest and violence which have at­
tended the desegregation of schools in nearby communi­
ties . . . some are matters with which this Court has had 
to deal, and of which it takes judicial notice.” The Court 
referred to “ considerations which weigh so heavily upon 
the Court,” to “ realities with which it has had acrid ex­
perience” (346a) and adds: “ Traditions, ways of think­
ing, aspirations, human emotions—all are involved. 
Emotions are sometimes stable, sometimes explosive. This 
Court has had experience with both. It rather anticipates 
that the emotions of the people of Knoxville are under 
control. It does not know. It would have had the same 
expectation of another community. It was wrong” (347a).

The Knoxville Board felt that these circumstances 
compelled delay in desegregation, particularly in view 
of the Supreme Court’s “ deliberate speed” language 
(231a-232a). Nevertheless the school personnel continued 
to work towards a compliance with the Supreme Court’s 
Brown decree.

Despite the trouble in neighboring Clinton, the case of 
Dianne Ward v. Board of Education of Knoxville was filed 
in the United States District Court at Knoxville on Janu­
ary 7, 1957, seeking desegregation of Knoxville schools 
(61a). This case was later dismissed, for what in effect 
was failure to prosecute, on June 1, 1959 (63a).

Up to and since the filing of the Ward case there were 
many petitions and applications for desegregation made 
to the board by organized groups and by some Negro 
parents and preachers (130a, 136a, 139a-140a). The board, 
however, felt that it was more reliably informed, in other 
ways, that the great bulk of both Negroes and whites in 
Knoxville did not want desegregation, or did not want it 
under existing conditions of unknown threats (275a)



6 —•

to orderly schooling (93a, 95a, 96a). This opinion of the 
board was later fully vindicated and upheld by the unan­
imous testimony of those plaintiffs who testified in the 
present case of Goss v. Board of Education, for they as­
signed, as the only ground for the desired desegregation, 
mere convenience of closer proximity to white schools, 
varying from a difference of one city block upwards in 
distance (20b-25b).

Weighing these factors and others (96a-98a, 151a) the 
Board of Education waited until April 8, 1960, before filing 
the plan of desegregation now under consideration.

This plan was chosen to start with as promising less dis­
turbance in the schools (102a-108a, 149a). Since it in­
volved only a comparatively few pupils, administrative 
problems would be minimized (271a). This includes 
teacher-pupil relationships and problems of discipline 
(271a). The normal difficulty of obtaining teachers is 
increased least by this plan as compared with other plans 
(272a). It provides time to solve problems of zoning, 
transfer and assignment (273a) and lessens the opportunity 
for development of prejudices (274a-275a). It most nearly 
accorded with the sentiment of the community and was 
least likely to imperil receipt of public funds needed to 
satisfy the school budget (276a). It eliminated problems 
stemming from difference in achievement levels of pupils 
in the same grade (278a-281a).



— 7 -

ARGUMENT,

The United States District Judge, four members of the 
School Board, and the School Superintendent and per­
haps his staff are afraid that this community will be 
brought to an unjustified risk of personal and property 
damage, interruption of schools and internal bitterness. 
The Judge ordered the Clinton desegregation and suffered 
under the weight of ensuing developments. The School 
Board has been sensitive and apprehensive.

There is an irreducible core of wisdom and justice in 
the questions, why possibly expose school children and 
others to personal indignity and other harm! Why 
snatch away an atmosphere of orderly attendance, study 
and emotions? Why create a serious risk of bomb or other 
damage to expensive hard-to-obtain school buildings?

To this the plaintiffs reply that the Supreme Court 
says you must, regardless of these apprehensions.

But the Supreme Court also said: “ Weigh the equities.” 
Here we find a conclusion by judge and school board alike 
that the public and common benefit, both to whites and 
Negroes, far outweighs the convenience to six or eight of 
the plaintiff children of walking a shorter distance to 
school which is the only equitable factor testified about 
in this case on their behalf. They are at no disadvantage 
otherwise and have complained of none, except as to Ful­
ton High School which is not within our present dis­
cussion.1

i At Fulton High School certain  technical and vocational courses were 
offered to w hite students. At A ustin  H igh School the full equivalent 
was not offered to Negro students. Paragraph  1 of the Court's judgm ent 
directed th a t the board subm it a plan which would m ake the omitted 
courses available to Negroes (348a). Such a plan was filed on March 31, 
1961.



— 8 —•

T.
Does the Evidence Establish That the Adoption by the 

Board of a Plan of Desegregation for Knoxville Public 
Schools at the Rate of One Grade a Year Beginning 
With the First Grade, Rather Than at a Faster Rate, 
Was Necessary in the Public Interest and Consistent 
With Good Faith?

The Court Below Answered the Question—Yes.
Defendants-Appellees Contend That the Court’s Answer 

Was Correct.
The plaintiffs-appellants miss both the spirit and the 

letter of Brown v. Board of Education when they state 
that “ only the type of considerations explicitly detailed 
by the United States Supreme Court could support” defer­
ment of total desegregation, and that the considerations 
are limited to the five mentioned in their brief at pag'e 17. 
The first Brown opinion (347 U. S. 495) at the very end, 
where the Court is striving to clarify the import of its 
decision, refers to “ the great variety of local conditions” 
and then directs further argument of questions 4 and 5.i * 3 
The second part of question 4 was “ may this Court, in

i “4. A ssum ing it is decided th a t segregation in public schools violates 
the Fourteen th  Amendment.

“ (a ) would a decree necessarily follow providing that, w ith in  the 
lim its set by norm al geographic school d istric ting , Negro children should 
forthw ith  be adm itted  to schools of the ir choice, or 

“ (b) m ay th is  Court, in the exercise of its  equity powmrs, perm it an 
effective g radual adjustm ent to be brought about from existing segre­
gated system s to a system  no t based on color distinctions?

“5. On the assum ption on which question 4 (a ) and (b) are based, 
and assum ing fu rth er th a t th is C ourt will exercise its equity powers to 
the end described in question 4 (b),

“ (a) should th is Court form ulate detailed decrees in these cases;
“ (b) if so, w hat specific issues should the decrees reach;
“ (c) should th is C ourt appoint a special m aster to hear evidence w ith 

a view to recom m ending specific term s for such decrees;
“ (d) should th is Court rem and to the courts of first instance w ith 

directions to fram e decrees in these cases, and if so w hat general direc­
tions should the decrees of th is  Court include and w hat procedures 
should th e  courts of first instance follow in a rriv ing  a t the specific term s 
of more detailed decrees?”



the exercise of its equity powers, permit an effective grad­
ual adjustment to be brought about from existing* segre­
gated systems to a system not based on color distinctions?” 
Question 5 assumed that tlie court would exercise its 
equity powers, and then proceeds to ask, among other 
things, “ should this Court remand to the courts of first 
instance with directions to frame decrees in these cases, 
and if so, what general directions should the decrees of 
this Court include and what procedure should the courts 
of first instance follow in arriving at the specific terms 
of more detailed decrees?”

In its second opinion the Court harked back to the first 
opinion saying “ Because these cases arose under different 
local conditions and their disposition will involve a variety 
of local problems, we requested further argument on the 
question of relief,” and proceeded to say:

“ Full implementation of these constitutional prin­
ciples may require solution of varied local school prob­
lems. School authorities have the primary responsi­
bility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the 
action of school authorities constitutes good faith im­
plementation of the governing constitutional princi­
ples. Because of their proximity to local conditions 
and the possible need for further hearings, the courts 
which originally heard these cases can best perform 
this judicial appraisal. Accordingly, we believe it 
appropriate to remand the cases to those courts.

“ In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi­
tionally, equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility 
for adjusting and reconciling public and private 
needs. ’ ’

Brown v. Board of Education, 349 IT. S. 294, 300.



These opinions disclose awareness of the existence, but 
not the precise outlines, of local problems in countless 
school districts in the United States. The Supreme Court 
did not claim familiarity with varied local conditions; 
foresaw the wisdom of proper evaluation of these by the 
local judge; and directed consideration by the equity ap­
proach, with decision reconciling public and private rights 
and postponing one or the other where unavoidable. We 
assume that one objective of this decision was to provide 
a way to desegregate with a minimum of bitterness, riot­
ing and hate.

The Court would not then stultify itself, as plaintiffs 
urge, by adding to this careful disposition an exclusive 
enumeration of precise local factors that could be con­
sidered by the local judge and school authorities.

In Cooper v. Aaron, 358 U. S. 1, a case cited by the 
plaintiffs, the school board in Little Rock, Arkansas sought 
to postpone the operation of their plan of desegregation 
upon the ground that hostile conditions compelled it. The 
Supreme Court denied this application for postponement 
because the hostility was directly traceable to actions of 
the Governor and the Legislature of Arkansas taken for 
the very purpose of circumventing the Court’s decision 
in Brown v. Board of Education. That case has no kin­
ship with this case at all.

This Court’s decision in the case of Kelley v. Board of 
Education of Nashville (C. A. 6, 1959), 270 F. 2d 209 is
controlling here. In that case the grade-a-year plan be­
ginning in the first grade was approved by this Court for 
the City of Nashville, Tennessee.

The importance of variation in local conditions is dem­
onstrated by comparison of the factual background of the 
Kelley case (as well as the case at bar) with that of Evans 
v. Ennis (0. A. 3, 1960), 281 F. 2d 385, which arose in



11 —

Delaware. In the latter case the Court of Appeals had to 
pass upon arguments advanced by the school board much 
like those here presented in this Brief, namely, a back­
ground of traditional segregation, the emotional impact 
ot desegregation, possible interruption of schooling, strife, 
etc. However, at the outset of that case the local judge, 
Judge Leahy, sitting as the United States District Court 
for the District of Delaware, had decided on July 15, 1957, 
in the case of Evans v. Buchannan, 152 F, Supp. 886 (af­
firmed 256 F. 2d 688 on July 23, 1957) that there should 
be no step desegregation in Delaware but that the schools 
should be thrown open to Negro pupils at the fall term 
ot 1957. Thus the Court of Appeals, Third Circuit, in 
reaching its decision on the second appeal, 281 F. 2d 385, 
had the support of a decision by the local judge that in 
his opinion the factors mentioned above were not of suf­
ficient seriousness to outweigh the Negroes’ right to im­
mediate fully desegregated schooling. The occasion for 
the second appeal of this case to the Court of Appeals was 
a decision of District Judge Layton, 172 F. Supp. 508, 
rendered on April 24, 1959, in which Judge Layton dis­
regarded the mandate of the Court of Appeals and ordered 
a grade-a-year plan of desegregation beginning in 1959, 
based upon the ground that the mentioned factors of hos­
tility, etc., and others were of sufficient weight to require 
a slow plan, thus contradicting Judge Leahy’s earlier 
decision in which the Court of Appeals had concurred. 
The Court of Appeals was fully justified in reversing 
Judge Layton’s judgment as being in contravention of its 
mandate, and also was doubtless justified in saying, as it 
did, “ concededly there is still some way to complete an 
unqualified acceptance though we cannot conclude that 
the citizens of Delaware will create incidents of the sort 
which occurred in the Milford area some five years ago. 
We believe that the people of Delaware will perform the 
duties imposed on them by their own laws and their own



—  12

courts and will not prove fickle to our democratic way of 
life and to our republican form of government.” 281 F. 
2d 389.

In this case, however, this honorable court does not 
have the comforting benefit of any prior opinion or ad­
judication by the District Judge in the Eastern District 
of Tennessee that local conditions are such as to permit a 
faster desegregation than that proposed by the plan now 
under review. On the contrary, the record contains very 
strong* expressions from the local judge which reveal deep 
grounded fears, predicated upon previous experience vir­
tually within the confines of the Knoxville suburban area. 
It is likely that the District Judge at Knoxville, in order­
ing desegregation at Clinton in 1956, felt the same as the 
Knoxville Board of Education felt in May of 1954, when 
the first Brown decision was announced, that is, that no 
particular difficulty in bringing about desegregation in 
Knoxville Public Schools would be encountered. It was 
a matter of considerable surprise and horror to the District 
Judge and to the citizens in this part of the state that the 
Clinton incidents of violence, hatred and prejudice fol­
lowed upon an order of the Court which was founded upon 
a belief that no such occurrences would take place.

We sincerely urge that this local situation be left to the 
handling of the local judge, as the wisdom of the Supreme 
Court has directed.



— 13

IT.
Whether the Constitutional Rights of Some of the Plaintiff 

Negro School Children Suffered a Violation Under 
Brown v. Board of Education, 349 U. S. 294, Because 
of the Adoption of a Plan of Desegregation at the Rate 
of One Grade a Year, Beginning With the First Grade, 
So; That, the Said Plaintiff Children Being in Grade 
Two or Higher Grades at the Time the Plan Became 
Effective, Their Annual Promotion Will Prevent the 
Desegregation From Catching Up With Them.

The Court Below Answered the Question—No.
Defendants-Appellees Contend That the Court's Answer 

Was Correct.

The plaintiffs’ Brief at page 28 correctly recognizes that 
the Brown opinion, 349 U. S. 294, established the principle 
that the personal interest of the particular plaintiffs may 
he deferred in favor of the public interest.

This admission completely controls this question. The 
plaintiffs so far have been subjected to nothing more than 
a deferral of their rights. The plaintiffs have full right 
to go back to the District Court and ask for a reconsidera­
tion, or a further consideration, of their rights, in the 
light of the year or two of experience under the plan.

It is impossible to disassociate the plaintiffs themselves 
from the other members of the class that they represent. 
If it be true that the public interest justifies the grade-a- 
year plan, then whatever deferral or deprivation of per­
sonal rights these particular plaintiffs suffer is precisely 
the same thing to which the balance of the class are sub­
jected. The very process of weighing the equities means 
that somebody’s rights are going to suffer because they 
are not of a weight equal to the opposed rights. This is 
the type of judicial handling which the Supreme Court 
itself has determined to be the most appropriate for the



— 14 —

adjudication of tills unique problem. If the enrollment of 
the plaintiffs themselves would tend to bring about the 
feared events, the occurrence of which would work public 
injury outweighing the injury or deferral of the plaintiffs’ 
rights, then it is within the province and even the duty 
of the judge of equity to give priority to the public rights. 
We remind the Court of the language of the answer of the 
defendants in this case, stating that no exigency existed 
which required preferment of the rights of these plaintiffs 
over the rights of the public, and we also remind the Court 
of the proof that these very plaintiffs have asserted in 
their testimony as major ground of complaint only that in 
some instances white schools were closer to them and they 
did not like the inconvenience of going to a school some­
what farther away. The opinion in Evans v. Ennis, supra, 
assumed that there would be no emotional disturbances, 
conflicts or interruptions of the orderly processes of public 
education caused by full desegregation. This implies that 
if any real fear of these things had existed, the Court 
would not have gone the full distance of a wide open 
desegregation.

Plaintiffs cite Board of Education of St. Mary’s County 
v. Groves (C. A. 4, 1958), 261 F. 2d 527. Here, however, 
only one plaintiff was accorded admission ahead of her 
Negro brethren, under very special circumstances. It ap­
peared that the plaintiff \  akhw was seeking admission to 
the segregated twelfth grade; her brother was already in 
the desegregated ninth grade, and the plan was proceed­
ing on a schedule which "was to bring about the very next 
vear the desegregation of the tenth, eleventh and twelfth 
grades. The present program of the Knoxville Board of 
Education and the circumstances are quite different.

Similarly, in Pettit v. Board of Education of Harford 
County, 184 F. Supp. 452, the plaintiff pupil was admitted 
to the tenth grade one year before the planned desegrega­



tion because he had been erroneously denied admission to 
the eighth grade where he desired an academic course 
available in the white school but not in the Negro school. 
Here was an instance of separate but not equal facilities 
(See 184 F. Supp. 458-9).

Plaintiff further cites Clemons v. Board of Education of
Hillsboro (C. A. 6, 1956), 228 F. 2d 853, a case from Ohio 
in which the District Judge, despite the fact that the 
rezoning to effect desegregation was patently gerryman­
dered, refused to issue an injunction because, as he said, 
desegregation would seriously disrupt the schools. It is 
noteworthy that this Court of Appeals, although holding 
that the District Judge abused his discretion, did not un­
dertake itself to determine what plan would fit, the local 
community, but remanded it for further consideration by 
the District Judge.

III.

Whether the Constitutional Rights of the Plaintiff Negro 
School Children Have Suffered a Violation Through 
the Adoption of a Plan of Desegregation Which In­
cludes the Provision That a School Child of Either 
Race Can Choose Not to Attend a School Theretofore 
Used Only by the Other Race or Whose Membership, 
or the Membership of the Child’s Grade, Is Predom­
inantly of the Other Race.

The Court Below in Effect Answered This Question—No.

Defendants-Appellees Contend That the Court’s Answer 
Was Correct.

It is stated at page 29 of plaintiffs’ Brief that the Chair­
man of the School Board, Dr. Burkhart, had testified that 
the all-Negro schools in Knoxville will remain segregated 
because that will be the effect of the racial transfer plan 
adopted in connection with the grade-a-year plan of de­



■— 16

segregation. This does not accurately present the facts. 
Whatever Dr. Burkhart said at that point in the record 
(118a) must be taken against the context of his severe 
cross-examination at that point. Moreover, his far greater 
commitment and dedication to the practice of medicine and 
lack of familiarity with the actual details of the transfer 
plan and the handling of the transfer problems as a prac­
tical matter in the day-to-day life of the City schools 
bring the facts into clearer perspective (4b, 5b, 6b).

Dr. Burkhart testified that the Board of Education 
charges the administrative staff with the duty of handling 
problems of transfer (5b).

The board did not study details of transfer (5b), didn’t 
know who would go to what schools (147a) and didn’t 
consider the zones in approving the plan (6b).

The handling of transfers had for many years been the 
responsibility of the supervisor of personnel, Frank M a ca­
ble. and it would continue to be his responsibility to han­
dle any transfers occurring under the plan of desegrega­
tion. Mr. Marable testified with respect to transfers 
under the plan “ if a white person or a Negro person 
wanted to, they would get the same consideration” (16b). 
Also, “ so far as I am concerned, there is going to be no 
Negro school district and white school district. It is just 
a school district, regardless of its color,” and “ Race 
wouldn’t come into it at all so far as I am concerned” 
(17b).

Mr. Marable does not regard the racial ground for a 
requested transfer as automatically entitling' the applicant 
to transfer, although “ valid” under Paragraph 6 of the 
plan, because other valid reasons may exist for denying 
it, such as overcrowding at the school to which transfer 
is sought. Mr. Marable further points out that requested 
transfers could be granted only when “ consistent with 
sound school administration” which is the phrase used



— 1.7

in Paragraph 5 of the plan. His testimony dispels any 
thought of race ipso facto as a. factor in transfer policy.

The testimony elicited upon the examination of plain­
tiffs’ counsel from board members Burkhart and possibly 
Moffett concerning the future operation of the transfer 
plan was in the realm of theory on the part of these wit­
nesses, with a confessed ignorance of the details involved 
in execution of the plan. This is to be contrasted with 
Mr. Marable’s immediate responsibility for all problems 
of transfer, a responsibility to which he was accustomed 
and had for many years been personally administering 
and with his testimony regarding the details of the plan 
which shows appreciation of the relevance of every word 
of the plan and a determination to disregard race in con­
sidering transfers, as the plan commanded him.

One unrealistic facet of this case is that the plaintiffs’ 
counsel apparently want children of both races to be 
forced to be together in school, despite the preference of 
practically all of them for being educated with their own 
race. A court order so requiring would go beyond both 
the Constitution and the Brown opinions and decree. It 
seems particularly irksome to plaintiffs’ counsel that in 
Nashville, as they claimed, most of the Negro children 
had chosen each year to go to a school predominantly 
Negro. In this aspect of the case, the plaintiffs here seek 
the Court’s aid to force upon both races association to an 
extent not desired by either at this time. The Brown deci­
sion does not warrant this.

The plaintiffs have not attacked the new zone map (Ex­
hibit 13, 75a) and must concede that the new zoning is 
reasonable. Thus the Negroes’ segregation, so far as it 
actually exists under this transfer plan, is due solely to 
the clustering of their homes in such a way that properly 
determined school zones in which they reside are pre­
ponderantly Negro.



— 18

If a white mother residing in such a preponderantly 
Negro zone requests transfer of her child to a school out 
of this zone on the ground of preponderance of Negroes 
in the school she can have acceptable reasons. For in­
stance, that it makes her feel uneasy that her child is 
subjected to more than the usual risks of childhood; that, 
as she imagines, he will have more potential non-friends 
than friends and more fights and emotional stress; that 
her child will learn more at the white school among 
friends already known, and in a less disturbing atmos­
phere. So the school principal grants a transfer. This is 
not a violation of the Fourteenth Amendment in respect 
of the Negro child who would have had the white child 
as a schoolmate if no transfer had been granted. The 
Negro child has not been denied admission to any school 
on any racial ground.

Assume further, that a Negro child in the same school 
applies for a transfer to the predominantly white school 
to which the white transferee is now assigned. The rea­
sons supporting the white child’s transfer do not support 
the Negro child’s application, but actually work against 
it. The Negro child’s peace of mind and educational de­
velopment presumably will be less disturbed in the school 
where he is already enrolled.

The reasonableness of the location of the school district 
lines is established. Therefore, a child must go to school 
in the school there located in the absence of substantial 
grounds for transfer, and these grounds must be more 
than the mere fact that the pupil is a child (whether 
white, yellow, red or black) in that grade and wants to 
go to another school. The denial of his application for 
transfer is not a violation of the Fourteenth Amendment.

In short, the color line is not being illegally drawn when 
the school board transfers a child upon his voluntary 
request based upon the true assertion that he will learn 
better, with less interruption, at the other school. The



validity of this as justification for requested transfer is 
not diminished because it happens that it stems from pre­
ponderance of a different race in the school. It could stem 
from differences in religion, or from personal peculiarities 
of the child applicant, or any one of many reasons having 
nothing to do with race.

If a child is denied disadvantage due to race as a ground 
for transfer, this goes beyond mere protection of the 
Negro child’s Fourteenth Amendment rights and hobbles 
the school board in the performance of its duty to edu­
cate all pupils the best way it can. In this it cannot avoid 
dealing with the results of concentration of Negroes in 
one place and whites in another. The process of desegre­
gation in Knoxville will not find communities of Negro 
and white homes equally and thoroughly mixed together, 
but typically faces the problem of one race being absent 
or in a small minority in each community. This can handi­
cap education in the cases of some pupils. When a pupil 
makes a voluntary application for transfer in the interest 
of better schooling atmosphere for himself, the board is 
obligated to help him out.

The transfer of that child, whether white or black, is 
not in itself a racial denial of another child’s application; 
and if the latter does make an application which is denied 
because not reasonably indicative of an improved class 
room atmosphere and an improved peace of mind in the 
child, the denial is not a racially discriminatory act, but 
is simply an act of enforcement of the policy that no 
transfer shall be granted without good reason.

Plaintiffs’ Brief cites (p. 35) Boson v. Rippy (0. A. 5, 
1960), 285 F. 2d 43, wherein the same transfer provisions 
here involved, namely, Paragraph 5 of the Plan, were 
held unconstitutional under this reasoning:

“ Nevertheless, with deference to the views of the 
Sixth Circuit, it seems to us that classification ac-



a c ­

cording to race for purposes of transfer is hardly less 
unconstitutional than such classification for purposes 
of original assignment to a public school.”

In the quoted language, the Court has entirely over­
looked the voluntary aspect of the application for transfer, 
as contrasted with the compulsory nature of the assign­
ments to schools under the old system of segregation. The 
former is the act of the individual; the latter is the act of 
the state. Only the latter is proscribed.

We agree with Boson v. Kippy in its holding that the 
Texas statute governing assignment and transfer of pnpils 
made it unnecessary that the Plan should set out the so- 
called “ valid” grounds for transfer, contained in Paragraph 
6 of the Plan here involved. In fact-, Tennessee has the 
equivalent of the Texas statute; Chapter 13 of the Tennes­
see Public Acts of 1957 was entitled in part “ An Act to 
regulate the assignment, admission and transfer of pupils 
. . . ” and is codified at 49 Tenn. Code Ann. 1741-1763. 
The reasoning of Boson v. Rippy that such a statute 
renders superfluous the so-called racial reasons for trans­
fers seem to us to be substantially the same as that in our 
discussion above, namely, that it is not the fact of race 
that justifies the board in granting the transfer, but it is 
the effect of one or more of the things mentioned in the 
Tennessee statute: “ effect on efficiency of operation of 
this school;” “ the psychological qualifications of the pupil 
for the type of . . . associations involved;” “ the psy­
chological effect upon the pupil of attendance at a par­
ticular school;” “ the sociological, psychological, and like 
intangible social scientific factors . . . ; ” “ the possibility 
or threat of friction or disorder among pupils or others;” 
etc., etc.

The constitutionality of the Tennessee statute is per­
haps doubtful. Kelley v. Board of Education, 159 F. Supp. 
272, 277. Since Boson v. Rippy recognizes that the trams-



21

fer grounds set out here in Paragraph 6 of the Plan are 
legitimate when not arbitrarily applied, adding nothing to 
the authorization of the reasonable Texas statute, these 
provisions in Paragraph 6 should be upheld, upon the pre­
sumption that the Knoxville Board will not apply them 
arbitrarily.

The board feels:
That the people of the community, both white and 

Negro, approve the board’s handling; that the community 
is grateful that there have been no occurrences, such as 
those in Little Rock, New Orleans, and next door here at 
Clinton; that practically all feel that both equity and 
reason are being' served;

That the City schools are on the path to desegregation 
and it will certainly be accomplished;

That a minimum speed has been fixed, but no maximum; 
that it is quite possible that either or both of the Court 
and board may conclude that the process may be speeded; 
and

That special situations, such as Fulton High School’s 
Technical and Vocational School, are being taken care of 
in a way completely responding to the requirements of the 
Brown decree.

It is respectfully submitted that the judgment of the 
District Court should be affirmed.

S. FRANK FOWLER,
1412 Hamilton Bank Building,

Knoxville 2, Tennessee,
Attorney for Defendants-Appellees.

CLAUDE Iv. ROBERTSON,
FOWLER, ROWNTREE & FOWLER,

Of Counsel.