McSwain v. County Board of Education of Anderson County, Tennessee Transcript of Record
Public Court Documents
January 1, 1952
Cite this item
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Brief Collection, LDF Court Filings. McSwain v. County Board of Education of Anderson County, Tennessee Transcript of Record, 1952. 6e2b6fc6-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3197fc54-b944-4f38-9769-0a987bfc16fc/mcswain-v-county-board-of-education-of-anderson-county-tennessee-transcript-of-record. Accessed August 06, 2025.
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Vol. I
No.
In The
UNITED STATES
COURT OF APPEALS
For the Sixth Circuit
JOHEATHER McSWAIN, an infant, by Allen McSwain, his
father and next friend; JAM ES DICKIE, an infant, by Clif
ford Dickie, his father and next friend; WILLIAM DICKIE
an infant, by Clifford Dickie, his father and next friend;
LILLIAN WILLIS, an infant, by O. W. WILLIS, her father
and next friend; SHIRLEY W ILLIS, an infant, by Q. W.
Willis, her father and next friend; and ALLEN McSWAIN;
MRS. W. V. McSWAIN; CLIFFORD DICKIE; MRS. MARY
DICKIE; O. W. WILLIS
Appellants
versus
COUNTY BOARD OF EDUCATION OF ANDERSON COUN
TY, TENNESSEE, consisting of J . M. BURKHART, C. L.
BROWN, DR. J . M. COX, JA C K DUNCAN, O. C. MAYES,
THOMAS A. SHARP, and J . M. SISSON, as board members, who
together, as such, constitute the County Board of Education of
Anderson County, Tennessee; FRANK E. IRWIN, Superintendent
of Schools of Anderson County, Tennessee, and D. J . BRITTAIN,
Principal of Clinton High School, Clinton, Tennessee
Appellees
s Appeal from the United States District Court for the
Eastern District of Tennessee, Northern Division
TRANSCRIPT OF RECORD
Z. ALEXANDER LOOBY,
Nashville, Tennessee
AVON N. WILLIAMS, JR .,
CARL A. COWAN,
Knoxville, Tennessee
Counsel for Appellants.
W. B. LEWALLEN,
SIDNEY DAVIS,
Clinton, Tennessee
JOHN T. GILBERTSON,
Knoxville, Tennessee
Counsel for Appellees.
I I D E X Page
Caption In U. S„ District Court 1
Appearances 1
Docket Entries 2
Complaint 8
Order Extending Time for Defendants to Answer 22
Motion of Defendant County School Board to Dismiss 23
Affidavit of Jo M. Burkhart 24
Motion of Defendants Frank E. Irwin and D, J„
Brittain to Dismiss 25
Amended Complaint 26
Order Permitting Withdraw! of Counsel
Order Extending Time for Defendants to Answer \Z
Order Extending Time for Defendants to Answer 1|3
Order Extending Time for Defendants to Answer 1|3
Answer of Defendant County Board of Education*
Anderson County* Tennessee 44
Answer of Defendants* D 0 Brittain and Frank E„
Irwin 50
Stipulations 52
Stipulations 59
Order Overruling Motion to Dismiss of D. J„ Brit
tain and Frank E„ Irwin 69
Order Overruling Motion to Dismiss of County
Board of Education 69
Order of Trial by the Court 70
Order of Trial by the Court Concluded and Taken
Under Advisement 70
I N D E X
ii
TRANSCRIPT OP TESTIMONY Page«■—rrffliw rjhrnlimu, i
Caption 71
Appearances 72
Proceedings 72
Stipulations of Pact 75
WITNESSES DIRECT CROSS REDIRECT RECRO£
Mrs* Allen McSwain 91 117
Roderick McSwain 135 ik k 158
D. J. Brittain 158 167 172 177
179
Frank E 0 Irwin l8l 198 217
(Recalled-Vol.II) 278 281 295 295
Stipulation » Mrs,, Mary Dickie22lj.
IN THE
DISTRICT COURT OF THE UNITED STATES
Eastern District of Tennessee
Northern Division
JOHEATHER MeSWAJN, an infant, by g
Allen Me Swain, M s father and next g
friend| JAMES DICKIE, an infant by g
Clifford Dickie, M s father and g
next friendi WILLIAM DICKIE, an s
infant, by Clifford Dickie, M s s
father and next friend? LILLIAN s
WILLIS, an infant, by 0. W* Willis, g
her father and next friendj SHIRLEY g
WILLIS, an infant, by 0* W* Willis, g
her father and next friend, and g
ALLEN MeSWAIN| MRS* W* V. McSlAINj §
CLIFFORD DICKIE? MRS* MARY DICKIE? §
0, W. WILLIS g
o
vs* g CIVIL NO* 1555
oo
COUNTY SCHOOL BOARD OF ANDERSON g
COUNTY, TENNESSEE, and FRANK E* g
IRWIN, Superintendent of School ?
of Anderson County, and B* J* BRIT= g
TAIN, Principal of Clinton High %
Senool* t
oQ
Amended [j.-l'H?! by adding? J, M* g
BURKHARTg C* L* BROWNg DR* J. M* g
COX, JACK DUNCAN, 0* C. MAYES, g
THOMAS A, SHARP? J* M* SISSON, as g
board members individually* ?
APPEARANCES?
For Plaintiffs
Z* Alexander Looby
I4.I9 I4th Ave* No, Nashville, Tenn*
Avon N* Williams, Jr*
5ll E* Vine St*, Knoxville, Tenn*
Carl A* Cowan
10l|r W* Vine, Knoxville, Tenn*
Thurgood Marshall
20 W* l|0th St*, New York, New York*
2
For Defendants?
Wo Bo Lewallen
Clinton, Tenn.
John To Gilbertson
Empire Bldg., Knoxville, Tenn,
Sidney Davis
Clinton, Term,
DOCKET ENTRIES
Dec, 5» 1950o Complaint, filed,
Dec, 1950, Summons for 3 defendants Anderson
Co, issued & handed to U. S. Marshal,
Dec, 21, 1950o Summons returned executed & filed.
Watson, D„M. 1 J4..OO
Jan. 8, 1950,0 Order that time within which defen
dants are required to answer or otherwise plead is hereby-
extended for a period of 30 days from this date, entered
in Civil Order Book 8, page 9 H & filed.
Feb. y, 1951o Motion of defendant County School
Board to dismiss, filed. Copy by atty0
Feb. 7s 195Xo Affidavit of J» M, Burkhart filed
as Exhibit ”A ” to motion of defendant, County School Board,
copy served by a tty.
Feb. 7, 1951o Memorandum in support of motion
of defendant, County School Board to dismiss, filed.
Copy served by atty.
Feb. Y» 1951» Motion of defendants, Prank E. Irwin
& Do J. Brittain to dismiss, filed. Copy mailed by attorney.
Docket Entries 3
Feb. 7, 19 5 1. Memorandum in support of motion of
#
Frank E. Irwin & D. Jo Brittain to dismiss* filed. Copy
mailed by attorney.
Apr. I?* 1951. Amended Complaint* filed.
Apr. 17* 1951. On© Summons for 9 defendants Ander
son County issued & handed U. S. Marshal.
Apr. 26* 19^1. Summons for 9 defendants Anderson
County returned executed & filed. Lawson* D.M. 31.60
May i}., 1951. Order permitting Sam. K. Carson and
Olen Henderson to withdraw as counsel for defendants*
entered in Civil Order Book 8* page 1028 and filed. Copy
mailed to attys. by Clerk* and copies mailed to each defen
dant by Clerk.
lay 9* 1951. Order allowing defendants 30 days
from this date in which to answer or otherwise plead*
entered in Civil Order Book 8 page 1032 & filed.
June 6* 195’1. Order extending time for defendants
to plead 22 days from date* entered in Civil Order Book 9*
page 1 I4, & filed.
June 28* 1951. Order extending time for defendants
to plead eight additional days from this date, entered in
Civil Order Book 9s> page Ml- & filed. Copy mailed C. A.
Cowan* Atty., by Clerk.
July 6* 19 5 1. Answer of County Board of Education*
Anderson County* Tenn.* filed. Copy to Cowan by atty.?
Docket Entr5.es 4
copy to Looby by Clerk? Notices to Williams 8c Marshall by
Clerk*)
July 6, 1951» Answer of D* J. Brittain and Prank
E. Irwin, filed* (Copy to Cowan by attys*j copy to Looby
by Clerk| Notices to Williams & Marshall by Clerk*)
Nov* 27, 1951« Cost Bond, filed*
De,e* 1, 195lo Stipulation, filed*
Dec* if., 1951* Stipulation, filed*
Jan* 2l\., 1952* Order overruling Motion of defen~
dants Prank E„ Irwin and D* J* Brittain, to dismiss,
entered in Civil Order Book 9 page 25band .filed*
Jan* 2i|., 1952* Order overruling Motion to dis
miss of County School Board, further order that saidS’
defendant may rely on matters stated in Motion to dis
miss upon hearing of case on merits except on grounds
stated in second ground thereof, entered in Civil Order
Book 9? page 250 and filed*
Jan* 2lj., 1952* Subpoena for 1 plaintiff witness
Roane Co* issued & handed to U* S„ Marshal*
Jan* 2I4., 1952* 3 Subpoenas for 8 plaintiff
witnesses Anderson Co* issued & handed to U* S» Marshal*
Peb* 5s 19^2* Subpoena for 2 deft* witnesses
Knox Co* issued and handed F* S* Marshal*
Peb* 5S 1952* Subpoena for 2 deft* witnesses
issued & mailed U» S* Marshal, Nashville, Tenn*, with
Docket Entries 5
at tys. check for $1 .2 0 for service,
Feb. 7, 1952, Praecipe for plaintiffs witnesses,
filed,
Feb, 7, 1952, 2 Subpoenas for 7 plaintiffs wit
nesses Anderson Co, issued & handed to U. S. Marshal,
Feb, 7s 1952, Subpoena for 1 plaintiff witness
Roane Go, returned executed & filed. Bare, D,M, ,95
Feb, 7, 1952, Subpoena for 2 defendant witnesses
Knox Co. returned executed & filed, G-arner, D,M, 1,00
Feb, 7, 1952, Subpoena for 3 plaintiff witnesses
Anderson Co. returned executed & filed, Watson, D,M, 1.50
Feb. 7, 19 52, Subpoena for 3 plaintiff witnesses
Anderson Go. returned executed & filed, Watson, D„M„ 1„50
1|,00
Feb, 7, 1952. Subpoena for 2 plaintiff witnesses
1.00
Anderson Co. returned executed & filed. Watson, D.M. 11.20
Feb, 9j> 1952o Subpoena for 2 defendant witnesses
Nashville, Tennessee, returned executed & filed.
(paid)
Vaughn,D.M. 1,20
Feb, 13, 1952, Order of trial by the Court with
out intervention of a jury, part of evidence heard, respited,
entered in Civil Order Book 9i> page 277,
Feb, llj., 1952. Order of trial continued, remain
der of evidence heard, argument of counsel, taken under
advisement, parties allowed 1 5 days to file brief after
record is transcribed, defendant allowed 15 days to reply
Docket Entrie s 6
and plaintiff 10 days thereafter, entered in Civil Order
Book 9j> P&g© 277„
Feb„ ll̂ , 1952. Exhibits, filed.
Feb. 15, 1952, Subpoena for 3 plaintiff witnesses
returned executed & filed. Watson, D»M, 1.50
Feb. 15, 195'2„ Subpoena for i| plaintiff witnesses
returned executed & filed. Watson, D.M. 10.50
Feb. lij., 1952. Witnesses who claimed attendances
(All parties defendant no fees taxed)
Oscar 0, Mayes, Devonia, Tenn. Test, for
Pltf. 2 days. Feb. 13 & IJ4., 1952.
Jack Duncan, Briceville, Tenn. Test, for
Pltf. 2 days. Feb. 13 & ll|, 19 52.
James M. Burkhart, Clinton, Tenn. Did not
Testify. 2 days. Feb. 13 & llf, 1952.
Frank E. Irwin, Andersonville, Tenn. For
Pltf. 2 days. Feb. 13 & llj., 1952.
Thos.Ao Sharp, Andersonville, Tenn. Did not
testify. 1 day. Feb. 1 3 , 1952.
Mar. 28, 1952. Defendants brief, filed.
Mar. 29, 1952. Plaintiff’s Brief, filed,
Apr. 12, 1952„ Reply brief on behalf of plaintiffs,
filed. Copy mailed by attorney.
Apr. l6, 1952. Reply brief on behalf of defendants,
filed. Copy mailed by attorney.
8
COMPLAINT
(Piled Deco 5* 1950)
lo (a) The jurisdiction of the court is invoked
under Section 2I4. (1) of the Judicial Code (28 U.S„C.A« *
Section ij.1 (1), this being a suit which arises under the
Constitution and laws of the United States* viz,* the
Fourteenth Amendment of said Constitution and Sections I4.I
and lj_3 of Title 8 of the United States Code, wherein the
matter in controversy exceeds exclusive of interest and
costs* the sum of fejOOOoOCh
(b) The jurisdiction of this court is also
invoked under Section 2I4. (lij.) of the Judicial Code (28
U.S.C.A.j, Section I4.I (llf)* this being a suit authorized
by law to be brought to redress the deprivation under
color of law* statute* regulation* custom and usage* of
a State of rights* privileges and immunities secured by
the Constitution* and of rights secured by the laws of
the United States providing for equal rights of citizens
of the United States* and of all other persons within
the jurisdiction of the United States* viz0* Sections Ifl
and ij.3 of Title 8 of the United States Code.
2. Plaintiffs further show that this is a proceed
ing for a declaratory judgment and injunction under Section
27l|d of the Judicial Code (28 U.S.C.Ao* Section IpOO) for the
purpose of determining questions in actual controversy
Complaint 9
between the parties, to-wlts
(a) The question of whether the custom and
practice of the defendants in denying, on account of race
or color, infant plaintiffs and other Negro children,
similarly situated, residing in Anderson County, Tennessee
the right and privilege of enrolling in, attending and
receiving instruction in public high schools in Anderson
County, maintained and operated by the defendants, who
maintain and operate public high schools in Anderson County
for white children, similarly situated, is unconstitutional
and void as being in violation of the Fourteenth Amendment
of the United States Constitution, the laws of the United
States and the Constitution and laws of the State of
Tennessee„
(b) The question of whether the custom and
practice of the defendants in denying, on account of race
or color, plaintiffs and other Negro children, residing
in Anderson Gounty, Tennessee, the right and privilege
of receiving instruction in courses of study such as are
provided by defendants for white school children similarly
situated, is unconstitutional and void, as being in viola
tion of the Fourteenth Amendment of the United States Con
stitution, the laws of the United States and the Constitu
tion and laws of the State of Tennessee,
(c) The question of whether the custom and
Complaint 10
practice of the defendants in denying, failing and refusing
to provide, on account of their race or color, Infant plain
tiffs and other Negro children residing in Anderson County,
Tennessee facilities for free bus transportation to and from
the public schools of Anderson County, Tennessee, upon the
same terms and conditions as defendants maintain, operate
and provide such facilities for white children, similarly
situated, is unconstitutional and void as being in violation
of the Fourteenth Amendment to the United States Constitution,
the laws of the United States and the Constitution and laws
of the State of Tennessee.
3® Infant plaintiffs are citizens of the United
States, State of Tennessee, and are residents of and domi
ciled in the City of Clinton, Anderson County, Tennessee!
they are all within the statutory age limits for eligibility
to attend public high schools, satisfy all requirements for
admission thereto and are eligible to attend the high schools
of Anderson County and are now enrolled in high schools out
side of said County! and other children in the class herein
represented are eligible to attend high school, but not en
rolled in any high school or are enrolled in high schools
in other Counties due to the failure of the defendants to
provide high school facilities! children not enrolled in
any elementary school due to the failure of the defendants
to provide school facilities! and pupils enrolled in school
Complaint 11
who complain because the facilities provided for their edu-
cation are vastly interior to facilities provided for white
school children, similarly situated. Adult plaintiffs are
citizens of the United States and the State of Tennessee,
and are residents of and domiciled in the City of Clinton,
Anderson County, Tennessee, are tax-payers of said County,
of the State of Tennessee and the United States. All adult
plaintiffs are either parents or guardians of said infant
plaintiffs and are required by law to send said infant
plaintiffs to school. All plaintiffs are Negroes and bring
this suit in their own behalf and in behalf of all other
persons similarly situated and allege that there is a common
question of law and fact affecting the rights of all Negroes
residing in Anderson County, Tennessee, similarly situated,
and a common relief is sought and, pursuant to Rule 23 of
the Federal Rules of Civil Procedure, bring this suit also
on behalf of all other persons, citizens and residents of
Anderson County, Tennessee, similarly situated and affected,
as will herein after more fully appear.
k-° Defendant County School Board of Anderson County
exists pursuant to the Constitution and laws of the State
of Tennessee as an administrative department of the State
of Tennessee, discharging governmental functions, and is
by law a body corporate or a continuous body or entity.
Defendant Frank M Irwin is Superintendent, and holds office
pursuant to the Constitution and laws of the State of Tennes-
see, as an administrative officer of the free public school
system of Tennessee,, defendant D0 J0 Brittain, Jr*, is
principal of the only public high school in the City of
Clinton, Anderson County„ Defendants, Prank M, Irwin and
Do Brittain, are made defendants herein and are sued in
their official capacity as Superintendent of Schools, Ander
son County, Tennessee, and Principal of Clinton High School
respectively.
The State of Tennessee has declared public
education a State function* The Constitution of Tennessee,
Article XI, Section 12, provides?
’’Knowledge, learning and virtue, being essen
tial to the preservation of republican insti
tutions, and th© diffusion of the opportuni
ties and advantages of education throughout
the different portions of the State being
highly conducive to the promotion of this
end, it shall be the duty of the General
Assembly, in all future periods of this
Government to cherish literature and science."
Pursuant to this mandate the Legislature of Tennes
see has established a system of free public schools in the
State of Tennessee according to a plan set out in the Code
of Tennessee of 1932, and supplements and amendments thereto.
Comp lain't 12
Complaint 13
The establishment* maintenance and administration of the
public school system of Tennessee is vested in a State Board
of Education* a Commissioner of Education and City Superin
tendent* of School and County and City school boards.
60 The public schools of Anderson County are under
the control and supervision of defendants* County School
Board and Prank M„ Irwin acting as an administrative depart
ment or division and as an agent of the State of Tennessee.
Said defendantSchool Board* is under a duty to enforce the
school laws of the State of Tennessee; to maintain an effi
cient system of public schools in Anderson County* Tennessee;
to determine the studies to be pursued* the methods of
teaching* and to establish such schools as may be necessary
to the completeness and efficiency of the school system.
Defendant, Prank M„ Irwin* as Superintendent* has the imme
diate control of the operation of the public schools in
Anderson County* and is the administrative agent of said
County School Board.
7® Defendant* School Board of Anderson County*
Tennessee* has established and maintained and is at the
present time maintaining in Anderson County* Tennessee*
accredited high schools for the education* convenience
and use of white school children of Anderson County ex
clusively. These said high schools are modern in con
struction and design and are adequately furnished to provide
Complaint lij-
a diversified secondary education,, These high schools provide
space and facilities for academic,, commercial, scientific
and vocational instruction! for cultural and artistic expres
sion! and for athletic and physical development. These
said high schools are located in different sections of
Anderson County within a range of a few miles of any whit©
pupil residing in Anderson County,
8, Defendant, School Board of Anderson County,
Tennessee, has established and maintained and is at the
present time maintaining in Anderson County, Tennessee,
consolidated schools for the elementary instruction, con
venience and use of white school children residing in Ander
son County, Virtually all of these schools are of modern
construction and design and are adequately furnished to
provide elementary instruction on a modern basis by grades.
These elementary schools are situated so as to be easily
accessable to elementary school children residing in Ander
son County,
9, Defendant, School Board of Anderson County,
Tennessee, has established and maintained and is at the
present time maintaining an efficient and adequate number
of school buses which serve every section of Anderson County
for the use and convenience of white school children resid
ing in said County,
10, The defendants have failed and refused and still
Complaint 15
fail and refuse to provide any school facilities in Anderson
County for the secondary education of Negro school children,
despite repeated requests for such schools by adult plaintiffs
and other Negroes for and on behalf of Negro children residing
in Anderson County, Tennessee, At the beginning of the Pall
Term, 1950, three of the infant plaintiffs made application
for admission to Clinton High School, the only High School
maintained by defendants in Clinton, Anderson County, Tennes
see, but were refused admission solely on account of their
race and color. For a number of years the defendants have
adopted and enforced and still maintain and enforce the
practice and custom of requiring Negro high school children
to attend high schools located at LaPollette in Campbell
County, Rockwood in Roane County, Knoxville in Knox County,
and Jefferson City in Jefferson County, irrespective of
the distance said schools may be from their respective
homes. This arrangement requires the majority of the Negro
high school children of Anderson County, who are able to
attend said schools, daily to travel unreasonable dis
tances varying from thirty-five to fifty-five miles. In
addition thereto, these children have to walk varying dis
tances of from one to five miles and with respect to Knox
ville the children and their parents must pay or furnish
their own transportation. Many of these children are
forced to spend from ten to twelve hours daily in the process
i6
of going tos attending and returning home from school. This
unnecessary burden consuming from four to six hours daily
is imposed upon Negro school children because of their race
or color and subjects them to unnecessary physical and
health hazards? deprives them of any opportunity for athletic
and cultural development and recreational time? and reduces
their opportunity for educational instruction and study,
11. The custom and practice of the defendants in
requiring Negro high school pupils to attend high schools
at these different places as hereinbefore stated is only a
token compliance with the statutory and constitutional
responsibilities of the defendants to provide secondary
instruction for Negro school children in Anderson County,
as the defendants have refused and failed and still refuse
and fail to permit Negro Children to attend any high school
in Anderson County or to provide adequate bus transporta
tion to enable all Negro children eligible to attend high
school to utilize the facilities in other counties. As a
result thereof;, although eligible to do so? a large number
of Negro children^ are unable to attend any secondary
public school,
12o In Tennessee every parent^ guardian or other
person having control or charge of any child who has reached
its seventh birthday and has not passed its sixteenth birth-
day is required to send said child to school unless said
Complaint
child is physically or mentally incapacitated., Pursuant to
this authority defendants maintain and enforce stringent
requirements designed to insure the enrollment and regular
attendance of all white children to school. But defendants
have failed and refused and still fail and refuse to enforce
the Compulsory School attendance Law insofar as it pertains
to Negro school children the reason being defendants failure
to provide equal school facilities for said Negro children.
13. Such educational opportunities as are provided
by the defendants for Negro school children are vastly
inferior to those provided for white school children,
similarly situated.
lip® Adult plaintiffs further allege that the dis
criminatory practice and custom of the defendants in requir-
ing Negro school children to' travel to LaPoll@tte? Rock-
wood, Jefferson City and Knoxville works unnecessary hard
ships upon the parents or guardians of said children, in
that said parents or guardians are forced to arise hours
before they would have to do so otherwise in order to get
their respective children off to school, are deprived of
the assistance, comfort and companionship of said children
due to the long hours necessary to perform th© process
of attending school under this arrangement and, have
greater difficulty in keeping their children in school ae
this arrangement is so drab, burdensome and unattractive
Complaftit 17
Complaint 18
to legro children.
15. The individual infant plaintiffs, adult plain
tiffs who are parents or guardians of the infants and all
other Hegroes in Anderson County, Tennessee, are thereby
being wilfully and unlawfully discriminated against by the
defendants on account of the race or color of plaintiffs
and further, plaintiffs are being deprived of their rights
guaranteed by the Constitution and laws of Tennessee and
of the United States.
16. Plaintiffs and those similarly situated and
affected, on whose behalf this suit is brought, are suffer
ing irreparable injury and are threatened with irreparable
injury in the future by reason of the acts herein complained
of. They have no plain, adequate or complete remedy to
redress the wrongs and illegal acts herein complained of
other than this suit for a declaration of rights and an
injunction. Any other remedy to which plaintiffs and those
similarly situated could b© remitted would be attended by
such uncertainties and delays as to deny substantial relief,
would involve multiplicity of suits, cause further irre
parable injury and occasion damage, vexation and incon
venience, not only to the plaintiffs and those similarly
situated, but to defendants as governmental agencies.
17. There is between the parties an actual contro
versy as hereinbefore set forth.
Complaint 19
WHEREFORE, plaintiffs respectfully pray the Court
that upon the filing of this complaint, as may appear proper
and convenient to the Court, the Court advance this cause
on the docket and order a speedy hearing on this action
according to law, and that upon such hearings §
lo This Court adjudge, decree and declare the rights
and legal relations of the parties to the subject
matter here in controversy in order that such de
claration shall have the force and effect of a
final judgment or decree.
2„ This Court enter a judgment or decree declaring
that the policy, custom, usage and practice of
defendants in denying, on account of their race
or color, plaintiffs and other Negro children
residing in Anderson County, Tennessee, the right
and privilege of enrolling in, attending and
receiving instruction in public schools in
Anderson County maintained and operated by the
defendants, where defendants maintain and ope
rate public schools in Anderson County, Tennes
see, for white children similarly situated, is
a denial of the equal protection of the laws
guaranteed by the Fourteenth Amendment of the
United States Constitution, and is therefore
unconstitutional and void
Complaint 20
3„ This Court enter a judgment or decree declaring
that the policy, custom, usage and practice of
defendants in denying, on account of their race
or color, plaintiffs and other Negro cMIdren
residing in Anderson County, Tennessee, the
right and privilege of receiving instruction in
courses of study such as ar© provided for whit©
school children,, similarly situated, is a. denial
of the equal protection of the laws guaranteed
by the Fourteenth Amendment of the United States
Constitution, and is therefore unconstitutional
and void,
if. This Court enter a judgment or decree declaring
that the policy, custom, usage and practice of
defendants in denying, on account of their race
or color, plaintiffs and other Negro children
residing in Anderson County, Tennessee transpor
tation to and from school upon the same terms
and conditions as defendants provide said trans
portation to white children, similarly situated,
is a denial of the equal protection of the laws
guaranteed by the Fourteenth Amendment of the
United States Constitution and is therefore un
constitutional and void,
5, This Court issue a permanent injunction forever
Complaint 21
restraining and enjoining the defendants* and
each of them* from denying* falling or refusing
to provide for the Hegro school children of An
derson County, on account of their race or color*
the right and privilege of attending the public
schools in Anderson Countyj the right and privi
lege of receiving instruction In courses of study
such as are provided for white school children*
similarly situatedj the right and privilege of
receiving bus transportation upon the same terms
and conditions as defendants provide said trans
portation to white school children similarly
situated,,
This Court issue a permanent injunction forever
restraining and enjoining the defendants* and
each of them* from making any distinction based
upon race or color in the facilities or oppor
tunities provided by the defendants for the
public eduea- of white and Uegro school
children in Anderson County* Tennessee,,
Plaintiffs further pray that the Court will
allow them their costs herein and such further*
other or additional relief as may appear to the
Court to be equitable and justo
Complaint 22
s/ Zo ALEXANDER LOOBY
Z0 Alexander Looby
41,9 Fourth Avenue,, North
Nashvilles Tennessee
s/ AVON No WILLIAMS, JR„
Avon N 0 Williams, Jr„
5ll Vine Street
Knoxville,, Tennessee
s/ CARL A, COWAN
Carl A 0 Cowan
101-J W. Vine Ave.
Knoxville, Tennessee
s/ THURGOOD MARSHALL, 3R0
Thurgood Marshall
20 West i|.0th Street
New York, New York,
Counsel for Plaintiffs,
ORDER
(Entered January 8, 195l<>)
In this cause, good cause having been shown by Olen
Henderson, Esq„, counsel for the defendants, for his request
for an enlargement of time within which the defendants are
required to answer, or otherwise plead, pursuant to the
provision of Rule 6 (b) of the Federal Rules of Civil Pro
cedure, it is hereby ORDERED that the time within which
the defendants are required to answer, or otherwise plead,
is hereby extended for a. period of 30 days from this date.
This 8th day of January, 1951 <>
s/ ROBTs ho TAYLOR
Judge
23
MOTION OF DEFENDANT COUNTY SCHOOL BOARD TO DISMISS
(Piled Feb* 7? 1951)
The defendant County School Board of Anderson County,
Tennessee, by its attorneys, respectfully moves the Court
as follows?
1, To dismiss the action because the complaint
fails to state a claim against said defendant upon which
relief can be granted*
2. To dismiss the action, or in lieu thereof to
quash the return of service of summons, on the ground that
there is no body corporate nor any legal entity known as
County School Board of Anderson County, Tennessee, that has
functioned since March 8, 1939» said body having been abolished
by enactment of the General Assembly of Tennessee, Private
Acts of 1939, Chapter 375? Section llj., on March 8, 1939?
and said defendant has not been properly served with
process, and the process which has been attempted herein
is insufficient as to said defendant, all of which more
clearly appears in the affidavit of J* M* Burkhart hereto
annexed as Exhibit A*
s/ SAM K. CARSON
Sam K* Carson
Seeber Building
Clinton, Tennessee
a/ OLEN HENDERSON
Olen Henderson
Arcade Building
Oak Ridge, Tennessee
Attorneys for Defendant School
Board of Anderson County, Tennessee*
Exhibit "A” to
Motion of Defendant
County School Board to Dismiss
AFFIDAVIT OF J„ M. BURKHART
(Filed Febo 7, 195D
STATE OF TENNESSEE)
)
COUNTY OF ANDERSON)
M„ BURKHART, being duly sworns deposes and sayss
10 That he is the person referred to as J0 M„ Burk
hart In the Complaint and Summons, and as nMack Burkhartn
In the Return of Service of Summons made in this action by
J. Ralph Lawson, .Deputy Marshal.,
2, That he is not now, and has never been since
the institution of this action, a member, officer, agent,
or employee of the County School Board of Anderson County,
Tennessee, referred to in said Complaint, Summons and
Return of Service of Summons in this action,
3. That one Frank Irwin and one D„ J„ Brittain,
both referred to as defendants in said Complaint, Summons,
and Return of Service of Summons in this action, are not,
and have not at any time since the Institution of this
action been, members, officers, agents or employees of
the County School Board of Anderson County, Tennessee,,
4o That the County School Board of Anderson County
Tennessee, was expressly abolished by proper enactment of
the General Assembly of Tennessee on or about. March 8, 1939
24
Affidavit 25
said enactment, being Private Acts of 1939? Chapter 375s
Section li|„
s/ J, M. BURKHART
J„ M0 Burkhart
Subscribed and sworn to before me this 7th day
of February, 1951°
s/ EUGENE HOLTSINGER
(Notarial Seal) Notary Public
My Commission expires April 6, 195̂ -°
MOTION OF DEFENDANTS FRANK E. IRWIN
AND D, J. BRITTAIN TO DISMISS
(Filed Feb„ 7s 195D
The defendants Frank 15. Irwin (who is the person
described in the Complaint, Summons and Return of Service
of Summons, his middle initial there being incorrectly
stated to be ffMn) and D, J„ Brittain, by their attorneys,
respectfully move the Court as follows %
1. To dismiss the action because the complaint
fails to state a claim against said defendants upon
which relief can be granted*
2. To dismiss the action for failure to join
indispensable parties*
s/ SAM K. CARSON, by 0 CH»
Sam Ko Carson
Seeber Building
Clinton, Tennessee
26
s/ OPEN HENDERSON
Olen Henderson
Arcade Building
Oak Ridge,, Tennessee
Attorneys for Defendants Prank E„
Irwin and D. J» Brittain
AMENDED COMPLAINT
(Piled Apr. 17, 195D
1. (a) The jurisdiction of the Court is Invoked
under Section 2ip (1) of the Judicial Code (28 U.S.C.A.,
Section Ip. (1), this being a suit which arises under the
Constitution and laws of the United States, viz,, the
Fourteenth Amendment of said Constitution and Sections ip.
and if3 of Title 8 of the United States Code, wherein the
matter in controversy exceeds, exclusive of interest and
costs, the sum of $3*000.00,
(b) The jurisdiction of this Court is also
invoked under Section 2lf(llj.) of the Judicial Code (28 U. S„
C.A., Section ip (lip, this being a suit authorized by
law to be brought to redress the deprivation under color
of law, statute, regulation, custom and usage, of a
State of rights, privileges and immunities secured by
the Constitution, and of rights secured by laws of the
United States providing for equal rights of citizens of
the United States, and of all other persons within the
jurisdiction of the United States, viz., Sections ip and
Amended Complaint 27
if. 3 of Title 8 of the United States Code*
2. Plaintiffs further show that this is a proceed
ing for a declaratory judgment and injunction under Section
27l}.d of the Judicial Code (28 U.S.C.A., Section ipOO) for
the purpose of determining questions in actual controversy
between the parties* to~wits
(a) The question of whether the custom and
practice of the defendants in denying* on account of race
or colors infant plaintiffs and other Negro childrens
similarly situated* residing in Anderson County* Tennessee*
the right and privilege of enrolling in* attending and
receiving instruction in public high schools in Anderson
County* maintained and operated by the defendants* who
maintain and operate public high schools in Anderson County
for white' children* similarly situated* is unconstitutional
and void as being in violation of the Fourteenth Amendment
to the United States Constitution* the laws of the United
States* and the Constitution and laws of the State of
Tennessee.
(b) The question of whether the custom and
practice of the defendants in denying* on account of race
or color* plaintiffs and other Negro children* residing
in Anderson County* Tennessee* the right and privilege of
receiving instruction in courses of study such as are pro=*
vided by defendants for white school children similarly
Amended Complaint 28
situated* is unconstitutional and void* as being in violation
of the Fourteenth Amendment to the United States Const!tui
tion, the laws of the United States* and the Constitution
and laws of the State of Tennessee„
(c) The question of whether the custom and
practice of the defendants in denying* failing and refusing
to provide* on account of their race or color* infant plain
tiffs and other legro children residing in Anderson County*
Tennessee facilities for free bus transportation to and
from the public schools of Anderson County* Tennessee* upon
the same terms and conditions as defendants maintain* ope
rate and provide such facilities for white children* similarly
situated* is unconstitutional and void as being in violation
of the Fourteenth Amendment to the United States Constitution*
the laws of the United States* and the Constitution and
laws of the State of Tennessee,,
3„ Infant plaintiffs are citizens of the United
States* of the State of Tennessee* and are residents of
and domiciled in the City of Clinton* Anderson Gounty*
Tennessee| they are all within the statutory age limits
for eligibility to attend public high schools* satisfy
all requirements for admission thereto* are eligible to
%
attend the high schools of Anderson County, and are now
enrolled in high schools outside of said Countyj and other
children in the class herein represented are eligible to
attend high. school, but not enrolled in any high school or
are enrolled In high schools in other Counties due to the
failure of the defendants to provide high school facili
ties! the class herein represented also includes children
not enrolled in any elementary school due to the failure
of the defendants to provide school facilities! and pupils
enrolled in school who complain because the facilities
provided for their education are vastly inferior to facili
ties provided for white school children, similarly situated.
Adult plaintiffs are citizens of the United States and the
State of Tennessee, and are residents of and domiciled
in the City of Clinton, Anderson County, Tennessee, are
tax-payers of said County, of the State of Tennessee and
the United States. All adult plaintiffs are either parents
or guardians of said infant plaintiffs and are required
by law to send said infant plaintiffs to school. All plain
tiffs are Negroes and bring this suit in their own behalf
and in behalf of all other persons similarly situated and
allege that there is a common question of law and fact
affecting the rights of all Negroes residing in Anderson
County, Tennessee, similarly situated, and a common relief
is sought, and, pursuant to Rule 23 of the Federal Rules
of Civil Procedure, bring this suit also on behalf of all
other persons, citizens and residents of Anderson County,
Tennessee, similarly situated and affected, as will herein
Amended Complaint 29
Amended Complaint 30
after more fully appears
lj.o (a) The County Board of Education of Anderson
County, Tennessee is composed of the following board members
the defendants J„ Burkhart, C0 L. Brown, Dr, J. M„ Cox,
Jack Duncan, 0« C„ Mayes, Thomas A, Sharp, and J0 !. Sisson,
who together as such board members constitute the County
Board of Education of Anderson County, Tennessee, and who
are hereinafter referred to as defendant County Board of
Education of Anderson County, Tennessee,,
(b) Said defendant County Board of Education of
Anderson Gounty, Tennessee exists pursuant to the Constitu
tion and laws of the State of Tennessee as an administrative
department of the State of Tennessee, discharging govern
mental functions, and is by law a body corporate or a contin
■auous body or entity,,
(c} All of said defendants, above named as
board members of defendant County Board of Eiucation of
Anderson County, Tennessee, are dtizens and residents of
the State of Tennessee, and are being sued herein in their
official capacities as such board members.
(d) Defendant Frank E„ Irwin is Superintendent
of Schools of Anderson County, Tennessee, and holds office
pursuant to the Constitution and laws of the State of
Tennessee, as an administrative officer of the free public
school system of Tennessee„
Amended Complaint 31
(e) Defendant D„ J. Brittain is Principal of
Clinton High School* the only public high school in the City
of Clinton, Anderson County, Tennessee,
(f) Defendants Frank E a Irwin and D, J„ Brittain
are citizens and residents of the State of Tennessee, ard
are made defendants herein and sued in their official capa
cities as Superintendent of Schools, Anderson County, Tennes
see, and Principal of Clinton High School, City of Clinton,
Anderson County, Tennessee, respectively,
5. The State of Tennessee has declared public edu
cation a State function. The Constitution of Tennessee,
Article XI, Section 12, provides;?
’’Knowledge, learning and virtue, being essen
tial to the preservation of republican insti
tutions, and the diffusion of the opportunities
and advantages of education throughout the
different portions of the State being highly
conducive to the promotion of this end, it
shall be the duty of the General Assembly, in
all future periods of this Government to
cherish literature and science,”
Pursuant to this mandate the Legislature of Tennessee
has established a system of free public schools in the State
of Tennessee according to a plan set out in the Code of
Tennessee of 1932, and supplements and amendments thereto.
The establishments maintenance and administration of the
public school system of Tennessee is vested in a Commissioner
of Educations, a State Board of Education* Gounty Superin
tendents of Public Schools* and County and City Boards of
Education*
6 0 The public schools of Anderson County* Tennessee
are under the control and supervision of defendants* County
Board of Education of Anderson County* Tennessee and Prank
E* Irwin, acting as an administrative department or divi
sion, and as an agent of the State of Tennessee* Said
defendant County Board of Education of Anderson County*
Tennessee is under a duty to enforce the school laws of
the State of Tennesseej to maintain an efficient system
of public schools in Anderson County* Tennessee £ to deter
mine the studies to be pursued, the methods of teaching*
and to establish such schools as may be necessary to the
completeness and efficiency of the school system* Defen
dant* Prank E, Irwin* as Superintendent* has the immediate
control of the operation of the public schools In Anderson
County and is the administrative agent of said County
Board of Education of Anderson County* Tennessee*
7* Defendant* County Board of Education of Ander
son County* Tennessee* has established and maintained and
Is at the present time maintaining in Anderson County*
Tennessee* accredited high schools for the education*
Amended Complaint 32
convenience and us© of white school children of Anderson
County exclusively, These said high schools are modern
in construction and design and are adequately furnished
to provide a diversified secondary education. These high
schools provide space and facilities for academic, commer
cial, scientific and vocational instruction? for cultural
and artistic expression? and for athletic and physical
development. These said high schools are located in dif
ferent sections of Anderson County, Tennessee within a
range of a few miles of any white pupil residing in Ander
son County, Tennessee,
8, Defendant, County Board of Education of Ander
son County, Tennessee, has established and maintained and
is at the present time maintaining in Anderson County,
Tennessee, consolidated schools for the elementary instruc
tion, convenience and use of white school children residing
in Anderson County, Tennessee, Yirtually all of these
schools are of modern construction and design and are
adequately furnished to provide elementary instruction
on a modern basis by grades. These elementary schools
are situated so as to be easily accessable to elementary
school children residing in Anderson County, Tennessee,
9* Defendant, County Board of Education of Ander
son County, Tennessee, has established and maintained
and is at the present time maintaining an efficient and
Amended Complaint 33
Amended Complaint 3k
adequate number of school buses which, serve every section
of Anderson County, Tennessee for the use and convenience
of white school children residing in said County„
10. The defendants have failed and refused and
still fail and refuse to provide any school facilities
in Anderson County for the secondary education of Negro
school children, despite repeated requests for such schools
by adult plaintiffs and other Negroes for and on behalf of
Negro children residing in Anderson County, Tennessee.
At the beginning of the Pall Term, 1950, three of the
infant plaintiffs made application for admission to Clin
ton High School, the only High School maintained by defen
dants in Clinton, Anderson County, Tennessee, but were
refused admission solely on account of their race and
color. For a number of years the defendants have adopted
and enforced and still maintain arid enforce the practice
and custom of requiring Negro high school children to
attend high schools located at LaPollette in Campbell
County, Rockwood in Roane County, Knoxville in Knox
County, and Jefferson City in Jefferson County, irrespec
tive of the distance said school may be from their respec
tive homes. This arrangement requires the majority of
the Negro high school children of Anderson Gounty, who
are able to attend said schools, daily to travel unreason
able distances varying from thirty-five to fifty-five
Amended Complaint 35
miles. In addition thereto* these children have to walk
varying distances of from one to five miles* and with respect
to Knoxville* the children and their parents must pay or
furnish their own transportation* Many of these children
are forced to spend from ten to twelve hours daily in the
process of going to* attending and returning home from
school* This unnecessary burden consuming from four to
six hours daily is imposed upon Negro school children solely
because of their race or color and subjects them to unneces
sary physical and health hazardsj deprives them of any
opportunity for athletic and cultural development and
recreational timej and reduces their opportunity for
educational instruction and study*
11* The custom and practice of the defendants in
requiring Negro high school pupils to attend high schools
at these different places as hereinbefore stated is only
a token compliance with the statutory and constitutional
responsibilities of the defendants to provide secondary
instruction for Negro school children in Anderson County*
Tennessee* as the defendants have refused and failed and
still refuse and fail to permit Negro children to attend
any high school in Anderson County* Tennessee or to pro-
vide adequate bus transportation to enable all Negro
children eligible to attend high school to utilize the
facilities in other counties* As a result thereof* although
Amended Complaint 36
eligible to do so* a large number of Negro children are unable
to attend any secondary public school,
12.0 In Tennessee every parent* guardian or other per-
son having control or charge of any child who has reached
its seventh birthday and has not passed its sixteenth birth
day is required to send said child to school unless said
child is physically or mentally incapacitated. Pursuant to
this authority* defendants maintain and enforce stringent
requirements designed to insure the enrollment and regular
attendance of all white children to school. But the defen
dants have failed and refused and still fail and refuse
to enforce the Compulsory School attendance Law insofar as
it pertains to Negro school children* the reason being
defendants failure to provide equal school facilities for
said Negro children,
13, Such educational opportunities as are provided
by the defendants for Negro school children are vastly
inferior to those provided for whit© school children*
similarly situated,
llj.. Adult plaintiffs further allege that the dis
criminatory practice and custom of the defendants in re
quiring Negro school children to travel to LaFollette*
Roekwoods Jefferson City and Knoxville works unnecessary
hardships upon the parents or guardians of said children*
in that said parents or guardians are forced to arise
hours before they would have to do so otherwise in order
to get their respective children off to schools are deprived
of the assistances, comfort and companionship of said child
ren due to the long hours necessary to perform the process
of attending school under this arrangement, and have greater
difficulty in keeping their children in school as this
arrangement is so drab, burdensome and unattractive to
Negro children,
1 $ . The individual infant plaintiffs, adult plain
tiffs who are parents or guardians of the infants, and all
other Negroes in Anderson County, Tennessee, are thereby
being wilfully and unlawfully discriminated against by
the defendants on account of the race or color of plain
tiffs, and further, plaintiffs are being deprived of their
rights guaranteed by the Constitution and laws of Tennessee
and of the United States,
l6. Plaintiffs and those similarly situated and
affected, on whose behalf this suit is brought, are suf
fering irreparable injury and are threatened with irreparable
injury in the future by reason of the acts herein complained
of. They have no plain, adequate or complete remedy to
redress the wrongs and illegal acts herein complained
of other than this suit for the declaration of rights
and an injunction. Any other remedy to which plaintiffs
and those similarly situated could be remitted would be
Amended Complaint .37
attended by such uncertainties and delays as to deny sub
stantial relief, would involve multiplicity of suits*, cause
further irreparable injury and occasion damage, vexation
and inconvenience, not only to the plaintiffs and those
similarly situated, but to defendants as governmental
agencies,,
17. There is between the parties an actual contra-
J''i versy as hereinbefore set forth,
WHEREFORE, plaintiffs respectfully pray the Court
that upon the filing of this amended complaint, as may
appear proper and convenient to the Court, the Court ad
vance this cause on the docket and order a speedy hearing
on this action according to law, and that upon such hearing
1. This Court adjudge, decree and declare the
rights and legal relations of the parties
to the subject matter here in controversy
in order that such declaration shall have
the force and effect of a final judgment
or decree.
2„ This Court enter a judgment or decree declar
ing that the policy, custom, usage and prac
tice of defendants in denying, on account
of their race or color, plaintiffs and other
Negro children residing in Anderson County,
Tennessee, the right and privilege of enroll
Amended Complaint 38
Amended Complaint 39
ing in, attending and receiving instraction in
public schools In Anderson County, Tennessee
maintained and operated by the defendants,
where defendants maintain and operate public
schools in Anderson County, Tennessee for
white children similarly situated, is a denial
of the equal protection of the laws guaranteed
by the Fourteenth Amendment of the United States
Constitution, and is therefore unconstitutional
and void,
3„ This Court enter a judgment or decree deelar-
ing that the policy, custom, usage and practice
of defendants in denying, on account of their
race or color, plaintiffs and other Negro child
ren residing in Anderson County, Tennessee,
the right and privilege of receiving instruc
tion in courses of study such as are provided
for white school children, similarly situated,
is a denial of the equal protection of the laws
guaranteed by the Fourteenth Amendment of the
United States Constitution, and is therefore un
constitutional and void,
if. This Court enter a judgment or decree declaring
that the policy, custom, usage and practice of
defendants in denying, on account of their race
or* color* plaintiffs and other Hegro children
residing in Anderson County* Tennessee transpor
tation to and from school upon the same terms
and conditions as defendants provide said trans
portation to white children* similarly situated,
is a denial of the equal protection of the laws
guaranteed by the Fourteenth Amendment of the
United States Constitution, and is therefore
unconstitutional and void*
5. This Court issue a permanent injunction forever
restraining and enjoining the defendants, and
each of them* from denying* failing or refusing
to provide for the Uegro school children of
Anderson County* Tennessee* on account of their
race or color* the right and privilege of attend
ing the public schools in Anderson County* Tennes
see:; the right and privilege of receiving in
struction in courses of study such as are pro
vided for white school children* similarly
situated^ the right and privilege of receiving
bus transportation upon the same terms and
conditions as defendants provide said trans
portation to white school children similarly
situated*
6. This Court issue a permanent injunction forever
Amended Complaint l|-0
restraining and enjoining the defendants* and
each of them* from making any distinction
based upon race or color in the facilities
or opportunities provided by the defendants
for the public education of white and Negro
school children in Anderson County* Tennessee.
Plaintiffs further pray that the Court will
allow them their costs herein and such further*
other or additional relief as may appear to
the Court to be equitable and just.
s/ Z. ALEXANDER LOOBY
Z. Alexander Looby
Ip.9 Fourth Avenue* N.
Nashville* Tennessee
s/ AVON N. WILLIAMS. JR.
Avon N„ Williams, Jr.
5>11 S. Vine Avenue
Knoxville 15* Tennessee
s/ CARL A. COWAN
Carl A. Cowan
10l|- W. Vine Avenue
Knoxville* Tennessee
s/ THURGOOD MARSHALL
Thurgood Marshall
20 West ij.0th Street
New York* New York
Amended Complaint Ip.
Counsel for Plaintiffs.
ORDER PERMITTING WITHDRAWAL OF COUNSEL
(Entered lay I4., 1951.)
U p o n a pplication of S a m K. Carson, E s q . , and Olen
Henderson, Esq., attorneys of record for the defendants,
for permission to w i t h d r a w as counsel for the defendants
in this cause, the Court u n d e r s t a n d i n g that w i t h d r a w a l is
a prerogative of counsel,
IT IS, THEREFORE, ORDERED that Sa m K. Carson, E s q * ,
and Olen Henderson, Esq., be, and they are, h e r e b y p e r m i t
ted to w i t h d r a w as attorneys of record for the defendants
in this cause.
A p p r o v e d for entry?
s/ ROBERT L. TAILOR
JUDGE
O R D E R
(Entered Ma y 9» 1951°)
U p o n the applic a t i o n of defendants, and for good
cause shown, the defendants h e r e i n are allo w e d 3 0 days
from and after this date in w h i c h to answer or otherwise
plead.
This 9th day of May, 1951.
s/ LESLIE R. PARR
Judge
APPROVED FOR ENTRY?
O R D E R
(Entered June 6, 1951*)
U p o n the a p p l i c a t i o n of d e f e n d a n t s , and for good
cause shown, the defendants h e r e i n are allo w e d 22 days
from and after this date in w h i c h to answer or otherwise
plead, and if defts. are unable to answer or otherwise
plead within the 22 da y period, they will give notice to
the Attys, for pla i n t i f f that they wil l a p p e a r before the
Court at which time the q u e stion of furt h e r extension of
time will be considered.
This 6th day of June, 1951»
APPROVED FOR ENTRY?
s/ ROBT. L. TAYLOR
Judge
O R D E R
(Entered June 28, 1951)
Upon applic a t i o n of the defendants, and for good
cause shown, the defendants h e r e i n are allowed eight addi~
tional days from and after this date in w h i c h to answer,
or otherwise plead in this causej this b e i n g in accordance
with order dated 6th of June, 1951°
Thi s 28th day of June, 1951°
APPROVED FOR ENTRY?
a/ ROBT. L. TAYLOR
Judge
1+3
ANSWER OF DEFENDANT„ COUNTY BOARD
OF EDUCATION, ANDERSON COUNTY, TENNESSEE
(Filed July 6, 1951.)
Comes the defendant, County Board of Education of
Anderson County, Tennessee, consisting of Jo M. Burkhart,
G. L. Brown, Dr. J. M. Cox, Jack Duncan, 0. G„ Mayes,
Thomas A* Sharp and J* M. Sisson, and for answer to the
complaint and amended complaint filed against them in this
cause, say;
FIRST DEFENSE
The complaint fails to state a claim or cause of
action against these defendant^ comprising the County Board
of Education of Anderson County, Tennessee, upon which
relief can be granted,
SECOND DEFENSE
The defendant, County Board of Education of Ander
son County, Tennessee, says that education in the State
of Tennessee is a State function, as set forth in Article
11, Section 12 of the Constitution of the State of Tennes
see, and Sections 2306 through 25>lj.0»3 of the Code of
Tennesseej and that the County Board of Education of
Anderson County, Tennessee is a mere administrative body
that carries out the regulations of the Commissioner of
Education and the State Board of Education of the State
of Tennessee, and the County Board of Education says that
Answe r k$
the State of Tennessee is an indispensable party to this
ation.
THIRD DEFENSE
The defendant5 County Board of Education, denies
that there is any controversy between the plaintiffs and
the defendants in this cause under Section Sip (1) of the
Judicial Gode, and that said Board denies that there is
any controversy between the plaintiffs and the defendants
in this cause under Section ipl and lp3 of Title A of the
United States Code* and said Board denies that there is
any controversy between the plaintiffs and the defendants
in this cause under Section Ipl (lip) of the United States
Code.
FOURTH DEPEH5E
1. The defendant. County Board of Education, daiies
that they or any of them have denied on account of race or
color, infant plaintiffs and other negro children similarly
situated residing in Anderson County, Tennessee, the right
and privilege of enrolling in, attending, and receiving
instruction in public high schools in Anderson County,
Tennessee, maintained and operated by the defendants.
2. The defendant, County Board of Education of
Anderson County, Tennessee, denies that there is a custom
of practice on the part of the defendants to deny on
account of race or color plaintiffs and other negro child
Answer i+6
ren residing in Anderson County* Tennessee* the right and
privilege of receiving instruction in courses of study
such as are provided for white children similarly situated,
3„ The defendant* County Board of Education* denies
that any of the defendants have a custom or practice to
deny or fail and refuse to provide* on account of race or
color* the infant plaintiffs and other negro children re
siding in Anderson County* Tennessee* facilities and free
bus transportation to and from the public schools of the
State of Tennessee* upon the same terms and conditions
that said Board maintains* operates and provides for white
children similarly situated.
I4.. The defendant* County Board of Education* denies
that said Board has failed and does not provide adequate
high school facilities for negro children residing in Ander
son County* Tennessee.
5o The defendant* County Board of Education of
Anderson County* Tennessee* denies that said Board fails
to provide and does not provide elementary school facili
ties for negro children residing in Anderson County*
Tennessee* that are equal to elementary school facilities
provided for white children residing in Anderson County*
Tennessee* similarly situated.
The defendant* County Board of Education*
admits that in the State of Tennessee* public education
Is a State function and that a system of free public, school
is provided for by mandate of Article XI, Section 12 of the
Constitution of the State of Tennessee, and that the estab
lished maintenance and administration of the public school
system of the State of Tennessee is vested in a commissioner
of education, State Board of Education, County Superinten
dent of Public Schools and County and City Boards of Educa
tion? and defendant, County Board of Education, admits
that the public school system of Tennessee is statewide in
scope and that the various county boards of education and
city boards of education in every county in the State of
Tennessee is governed by the rules and regulations of the
Commissioner of Education and the State Board of Education,
in addition to laws passed by the Legislature of the State
of Tennessee*
7o The defendant, County Board of Education,
denies that said Board fails and refuses to provide for
any school facilities in Anderson County, Tennessee, for
the secondary education of negro school children? and said
Board denies that three of the Infant plaintiffs were
denied admission to Clinton High School in Clinton, Tennes
see, solely on account of their race or color*
8* The defendant, County Board of Education, denies
that they have adopted or enforced the practice or custom
of requiring negro high school children to attend high
Answer 1+7
Answer 1̂8
school in Campbell County, Roane County, Knox County and
Jefferson Country, Tennessee, irrespective of the distance
said school may be from the negro child5 s home j and said
Board denies that negro children are forced to travel un
reasonable distances to attend high school, or to walk
unreasonable distances to attend high school! and said
Board denies that negro children or parents must furnish
or pay the negro childJs transportation to and from school,
9« The defendant, County Board of Education, denies
that said Board has engaged in any custom or practice that
makes it a hardship upon negro parents, and said Board
enies that it has engaged in any practice or custom which
makes it a hardship on any negro child eligible to attend
high school and who desires to attend high school,
10, The defendant, County Board of Education,
denies that said Board has failed and refused and still
fails and refuses to enforce the attendance lair insofar
as it pertains to negro school children for any reason
whatsoever,
11, The defendant, County Board of Education,
denies that the educational opportunities provided for
by said Board for negro school children are vastly infer1!or
to those provided for white school children similarly
situated,
12, The defendant, County Board of Education,
Answer
denies that said Board has engaged in any discriminatory
practice or custom to or towards any negro children resid
ing in Anderson County, Tennessee, or that said Board has
caused any unnecessary hardship for negro parents or that
said Board has deprived any negro parent of the assistance,
comfort and companionship of their children for any reason.
1 3 „ The defendant, County Board of Education, denies
that said Board has wilfully and unlawfully discriminated
against the plaintiffs or any other negro children or
parents residing in Anderson County, Tennessee, or that
said Board has deprived them of their rights as guaranteed
by the Constitution and laws of the State of Tennessee and
of the United States.
li|, The defendant, County Board of Education,
denies that the plaintiffs in this cause, or any other
negro parents or children are suffering injury and are
threatened with injury by any policy, custom or practice
of the County Board of Education of Anderson County,
Tennessee,
FIFTH DEFENSE
The defendant, County Board of 'Education of Ander~
son County, Tennessee, believes that their only purpose
of existing is to administer the educational laws of the
State of Tennessee, and the rules and regulations of the
Commissioner of Education of Tennessee, and the State Board
k-9
Answer 50
of Education of Tennessee? and that the County Board of
Education of Anderson County* Tennessee* has administered
said laws* rules and regulations in the past* and intend
to administer them in the future in such a manner as to
provide equal educational opportunities for all the negro
children and whit© children living in Anderson County*
Tennessee,
The defendant* County Board of Education* demands
a jury to try all the issues of fact raised by the plead
ings in this cause,
s/ SIDNEY DAVIS
Sidney Davis* Attorney
Jones Building
Clinton* Tennessee
a/ W. B, LEWALLEN
W, B„ Lewallen, Attorney
Jones Building
Clinton* Tennessee
s/ JOHN T, GILBERTSON
John T, Gilbertson* Attorney
Empire Building
Knoxville* Tennessee
ANSWER OF DEFENDANTS, D, J, BRITTAIN
AND FRANK E, IRWIN
(Piled July 6* 195D
Gomes the defendant* D, J, Brittain* Principal* of
Clinton High School* and Prank E, Irwin* Superintendent of
the Schools of Anderson County* Tennessee* and for answer
to the complaint filed against them in this cause* says
Answer 51
FIRST DEFEHSE
That both the defendant* D„ J, Brittain and the
defendant* Frank E, Irwin* rely upon the motion which
they heretofore filed in this cause as their first defense
to the complaint filed against them,
SECOHD DEFENSE
That there are no facts alleged in the complaint
which entitled the plaintiffs to any relief against the
defendant* D„ J, Brittain and the defendant* Frank E» Irwin,
THIRD DEFENSE
That the defendant* D* J, Brittain, as Principal
of Clinton High School* has no authority whatsoever to
formulate the policy* custom and practice of the County
Board of Education of Anderson County* Tennessee* Insofar
as It relates to either white or negro children residing
in Anderson County* Tennessee! and the defendant* Frank E,
Irwin* as Superintendent of the Schools of Anderson County,
Tennessee* has no authority whatsoever to formulate the
policy, customs and practices of the County Board of
Education of Anderson County* Tennessee* insofar as it
relates to negro and white children residing In Anderson
County* Tennessee,
FOURTH DEFEHSE
That the defendant* D, J, Brittain Is merely an
employee of the County Board of Education of Anderson County,
Answer 51
FIRST DEFENSE
That both the defendant, D a J. Brittain and the
defendant, Frank E„ Irwin, rely upon the motion which
they heretofore filed in this cause as their first defense
to the complaint filed against them,,
SECOUD DEFENSE
That there are no facts alleged in the complaint
which entitled the plaintiffs to any relief against the
defendant, D<» J. Brittain and the def endant, Frank E, Irwin,
THIRD DEFENSE
That the defendant, D, J, Brittain, as Principal
of Clinton High School, has no authority whatsoever to
formulate the policy, custom and practice of the County
Board of Education of Anderson County, Tennessee, Insofar
as it relates to either white or negro children residing
in Anderson County, Tennessee; and the defendant, Frank E.
Irwin, as Superintendent of the Schools of Anderson County,
Tennessee, has no authority whatsoever to formulate the
policy, customs and practices of the County Board of
Education of Anderson County, Tennessee, insofar as It
relates to negro and white children residing In Anderson
County, Tennessee„
FOURTH DEFERSB
That the defendant, D„ J. Brittain is merely an
employee of the County Board of Education of Anderson County
Answer 52
Tennessee, and has no authority whatsoever except to obey
the County Board of Education of Anderson County, Tennes
see, and carry out such orders as are issued him from time
to time by said Board.
FIFTH DEFENSE
The defendants, Frank E. Irwin and D. J, Brittain,
for further answer, herein adopt by reference the answer of
the defendant, County Board of Education of Anderson County,
Tennessee, in its entirety, as if said answer were copied
herein verbatim,,
The defendants, Frank E„ Irwin and D„ J» Brittain
demand a jury to try all the issues of fact raised by the
pleadings in this cause„
s/ SIDNEY DAVIS
Sidney Davis, Attorney
Jones Building
Clinton, Tennessee
s/ W. Bo LEWALLEN
W„ B 0 Lewallen, Attorney
Jones Building
Clinton, Tennessee
s/ JOHN To GILBERTSON
John To Gilbertson, Attorney
Empire Building
Knoxville, Tennessee
STIPULATIONS
(Filed Dec. 1, 195D
In this cause, it is hereby agreed and stipulated
fry and between the parties as evidenced by the signatures
of the respective counsel hereto, that the within may be
filed, deemed, and treated as evidence to be used at the
trial*
1„ That in Anderson County, Tennessee, white child
ren and colored children are required to attend separate
schools. This separation is required in compliance with
Article 11, Section 12, of the Constitution of Tennessee,
and Sections 11395., 11396? arid 11397 of the Code of Tennesse
2, The County Board of Education of Anderson Gounty
Tennessee provides, maintains, and operates three high
schools located at Lake City, Clinton, and Horris, in Ander
son County, Tennessee for white children, but there is ro
high school at present in Anderson County, provided, main
tained, and operated by said Board of Education for Hegro
children*
3* The plaintiffs, both adult and infant, are
members of the hegro race, citizens of the United States
and of the State of Tennessee, and residents of the City
of Clinton, Anderson County, Tennessee, All of the infant
plaintiffs are persons of high school age, are eligible
to attend high school, and have been attending high school
during the pendency of this litigation at Austin High
School in the City of Knoxville, Knox County, Tennessee,
That during the month of September, 1950 and
on the first day of the 19 50 -19 5 1 school year, all of the
Stipulations 53
Stipulations
infant plaintiffs, in person or by their parents or guardians
acting in their behalf, namelys Joheather IcSwain, James
Dickie, William Dickie, Lillian Willis, and Shirley Willis,
made application for admission to Clinton High School to
the defendants, Prank E„ Irwin, Superintendent of Schools,
Anderson County, Tennessee! and D„ J„ Brittain, Principal
of Clinton High School, Clinton, Tennessee! this being the
only high school located in Clinton, Tennessee provided,
maintained, and operated by the defendants, County Board
of Education of Anderson County, Tennessee„
5» That the defendants. Prank E„ Irwin, Superin
tendent of Schools, and D» J. Brittain, Principal of Clinton
High School, relying on the Constitution and Statutes of
the State of Tennessee as hereinbefore mentioned, denied
all of the infant plaintiffs admission to the said High
School,
6, That in January, 1951s subsequent to the
filing of this suit, the defendants, County Board of
Education, began paying the transportation expense for
the infant plaintiffs to and from Knoxville, Tennessee
u0 attend Austin High School at Knoxville, Tennessee!
the parents of the infant plaintiffs having been required
to pay same prior to said date,,
7° The distance from the residence of the plain
tiff, Joheather MeSwain, to Austin High School, Knoxville,
511-
Stipulations 55
Tennessee* is approximately 19 milesj while the distance
from her home to Clinton High School is approximately l/ip
mile. The distance from the residence of the plaintiffs*
James Dickie and William Dickie* to Austin High School*
Knoxville* Tennessee* is approximately 19 and l/lp mllesj
while the distance from their home to Clinton High School
is approximately l/2 mile. The distance from the residence
of the plaintiffs* Lillian Willis and Shirley Willis* to
Austin High School* Knoxville, Tennessee, is approxi
mately 19 and l/8 miles| while the distance from their
home to Clinton High School is approximately between I/J4.
and .1/2 mile<,
8» Anderson County now furnishes free transporta
tion from Clinton, Tennessee to Knoxville, Tennessee! how
ever the plaintiff Joheather McSwain is required to walk
approximately l/2 mile to the point where she may board
the bus to Knoxville, Tennessee,, The plaintiffs James
Dickie and William Dickie are required to walk approxi-
mately 3/i}. mile to the point where they may board the
bus for Knoxville, Tennessee, The plaintiffs, Lillian
Willis and Shirley Willis are required to walk approxi
mately between l/2 and 3/b Mile to the place where they
Muy hoard the bus for Knoxville, Tennessee, The travel-
time by bus from the point of departure in Clinton,
enne^see to Austin High School, Knoxville, Tennessee,
by commercial bus at the time when suit was filed, is from
one hour and ten minutes to one hour and forty minutes,,
The travel-time by school bus provided by defendant County
Board of Education since this suit was filed, from the
point of departure in Clinton, Tennessee, to Austin High
School, Knoxville, Tennessee, is approximately forty-one
minuteSo Austin High School was designated by said Board
of Education during the pendency of this litigation, and
is now the nearest designated high school,, The travel-
time by bus from the point of departure in Clinton, Tennes
see, to LaPollette Colored High School, LaPollette, Tennes
see, the nearest designated high school at the time the
suit was filed, is approximately one hour and forty-five
minutes„
9« The bus designated by the County Board of
Education to transport the infant plaintiffs to Austin
High School, Knoxville, Tennessee, from Clinton, Tennessee,
is old, leaky, poorly ventilated because of defective
window operation, and has no heating system. In addition,
the infant plaintiffs must frequently wait at the point
where they may board said bus for Knoxville, Tennessee,
for periods of time varying from five to fifteen minutes
xn order to ride said bus. At such times the infant
plaintiffs must wait on the street, often in inclement
oather, there being no shelter provided for them at
Stipulations 56
said point where they may board the bus for Knoxville*
Tennessee,,
10. In order to ride the bus designated by the
County Board of Education to transport the infant plain
tiffs to Austin High Schools Knoxville* Tennessee from
Clinton* Tennessee* the children must leave the High School
not later than 3 0 0 p.m, As a result thereof* they are
unable to participate in any physical* cultural* or health
activities which are generally offered after regular school
hourso
11. In order to reach Austin High School in time
for the first class* the infant plaintiffs must rise at
to SsOO a„m0f while if they were attending Clinton.
High School* they would not have to rise before 7•30 a.m.
12o In order to get the children off in time to
be transported to Knoxville* Tennessee* the parents or
guardians of the infant plaintiffs have to rise not later
than 5 slj.5> to 6s00 a,a,, which is at least an hour and one
half sooner than they would have to rise if these children
attended school in Clinton* Tennessee»
13° The County Board of Education of Anderson
County is a creature of the State of Tennessee by virtue
of Sections 2306-2£1j.0.2* Code of Tennessee.
1^° Superintendent Prank E, Irwin holds an office
authorized by the Legislature of Tennessee,, His qualifi
S-fclpu lat ions 5> 7
cations for office are fixed by the State of Tennessee,
Sections 2316 (2), 2320a, 2320b, 2321, 2322, and 2323, Code
of Tennesseej and the qualifications of high school teachers
of the State, including those of Anderson County and of
Clinton, Tennessee, are fixed by the State of Tennessee,
Sections 2336~23l|5ol8, Code of Tennessee.
The defendant County Board of Education of
Anderson County provides, maintains, and operates
grarmnar» schools for white children in Anderson County,
Tennessee, said schools being scattered throughout the
County! but said Board of Education provides, maintains,
and operates only one grammar school in Anderson County
for Negro children, namely, the Green-McAdoo School, 01in*»
ton, Tennessee! although Negro children who are eligible
to attend grammar school are residing throughout said
County,,
l6. The Green-MeAdoo School, Clinton, Tennessee,
which is the only grammar school provided, maintained,
and operated by said County Board of Education for Negro
children in Anderson County, does not contain any gym™
nasium, gymnasium equipment, or first aid room! and the
curriculum of said School does not contain any art
program.
The Clinton Grammar School, which is provided,
maintained, and operated by the defendant County Board of
Stipulations 58
Education for w M t e children of Anderson County residing in
and about Clinton*, Tennessee*, in addition to classroom,
library, and cafeteria facilities which are equal or superior
to those provided at the Green-McAdoo School, also contains
a spacious gymnasium with basketball court and equipment,
and a large, adequate first aid room with examining table,
scales and supply cabinets; and the curriculum of said
Clinton Grammar School, in addition to all courses of study
which are offered at Green-McAdoo School, also contains
an adequate art program,
a / Z , A L E X A N D E R L O O B Y p e r A N W
Zo A l e x a n d e r L ooby
1 1̂ 9 ~i{-th Ave„, N.
Nashville, Tennessee
s/ AVON N„ WILLIAMS, JR,
Avon N. Williams, Jr,
511 E„ Vine Ave,
Knoxville l£, Tennessee
s/ CARL A, COWAN per ANW
Carl A, Cowan
101-J W„ Vine Avenue
Knoxville, Tennessee
s/ THURGOOD MARSHALL per ANW
Thurgood Marshall
20 West i).0th Street
New York, Hew York
Counsel for Plaintiffs
Stipulate. on s 5 9
(STIPULATIONS)
(Piled Dec, 4* 1951)
The defendant, County Board of Education, consist™
Stipulate ons 60
ing of M. Burkhart^ C* L* Brown,, Dr* J* M» Cox* Jack
Duncan* 0, 0, Mayes, J* 1, Sisson and R.. G., Orossnoj
and Prank E0 Irwin and D« J* Brittain stipulate that the
following facts are true and need not to be proven by
the plaintiffs in this causes
(1 ) White and colored children are required to
attend separate schools in Anderson County* Tennessee*
This is required upon the authority of Code Section 2377
of the Code of Tennessee and Code Section 2393°9 of the
Code of Tennessees and also Article XI, Section 12 of
the Constitution of the State of Tennessee* This re
quirement is based upon the directive of the Commissioner
of Education and State Board of Education of the State of
Tennessee*
(2) The school board provides three high schools
for white children living in Anderson County* Tennessee9
and provides one high school for negro children*
(3) The infant plaintiffs are negroes*
(ij.) The infant plaintiffs are citizens and resi
dents of Anderson County, Tennessee*
(5) The infant plaintiffs are qualified as to
educational progress for admission to high school*
(6) The infant plaintiffs are residents of the
n-ted States and the State of Tennessee and they reside
aud are domiciled in Anderson County* Tennessee*
Stipulations 61
(7) A Negro child came to D, J. Brittain and asked
him about coming to Clinton High Schools and D„ Brittain
told the Negro child that he would have to talk to the
County School Board and Superintendent about this and the
Negro child left D, J. Brittain5s office and did not return,
D, J, Brittain does not know the name of the Negro child
and cannot say whether or not he was one of the infant
plaintiffs, D, J. Brittain did not deny the child entrance
to Clinton High School nor did the child make application
for admission to Clinton High School* .said child talking
to D, J, Brittain for approximately five minutes as above
set forth,
(8) The defendants do not know the name of any
infant plaintiff who made application to enter Clinton
High School and no such application was ever made,
(9) The defendants say that none of the infant
plaintiffs made application to enter Clinton High School,
(10) No directive was ever made denying infant
plaintiffs admission to Clinton High School, however, by
directive of the State Board of Education under authority
of Code Sections cited above it is unlawful to allow
white and colored children to attend the same school in
the State of Tennessee,
(11) The infant plaintiffs have been attending
high school during the pendency of this litigation.
(12) The infant plaintiffs have been attending
a high school provided by the Board of Education of Ander-
son County, Tennessee,
(13) The attendance of High School does not neces
sitate any expense to plaintiffs that would not be necessi
tated by attendance of Clinton High School,
(lip) The schools attended by infant plata tiffs
offer educational facilities equal or superior to those
of Clinton High School,
(15) The schools attended by infant plaintiffs
offer the same courses of study or more courses of study
than ere offered at Clinton High School,
(16) The Anderson County School Board has desig
nated certain out of county high schools which infant
plaintiffs may.attend,
(17) The School Board has designated Austin
High School, in Knoxville, Tennessee, which infant plain
tiffs living in the Clinton and Lake City area attend,
and the Rockwood Negro High School in Soane County,
Tennessee, which Negro children living in the Oliver
Springs vicinity attend,
(18) It is approximately seventeen miles to
Austin High School from Clinton, Tennessee, and it is
approximately twenty-two miles from Oliver Springs to
Rockwood Negro High School in Rockwood,
Stipulations 62
Stipulations 63
(19) Many white children of Anderson County„ Tennes
see,, are required to attend High Schools located outside
of Anderson County, Tennessee,
(20) The high schools of Anderson County do not
offer identical courses of study,
(21) The school board furnishes free transportation
to the infant plaintiffs to and from school,
(22) The infant plaintiffs are required to walk
less than one-half mile in order to reach their means of
transportation to school,
(2 3) White children of Anderson County are fur
nished free transportation to and from school,
(2ij.) Approximately one-half of the white children
have to walk to high school,
(25) Representative white children are required
bo walk approximately one-half mile in order to reach
their means of transportation to high school,
(26) White children who walk or furnish their
own transportation to high school receive no eompensation
for transportation to and from high school,
(27) Infant plaintiffs attending designated
High schools incur no necessary expenses that are not
necessarily incurred by white children who attend Clin
ton High School,
(28) Transportation costs the infant plaintiffs
Stipulations 6ip
nothing whatsoever when they attend the designated school
that is nearest to Clinton, Tennessee,
(29) The travel time by school bus from the homes
of the infant plaintiffs to the designated high school
that is nearest to them is not more than forty-five minutes
(30) The maximum travel time required by white
ehildrem of Anderson County in going to and from high
school is approximately one hour and twenty“five minutes
each way,
(31) The parents of infant plaintiffs do not have
to rise earlier than normal in order that infant plaintiffs
may reach their means of transportation on time,
(32) The parents of all white school children
of Anderson County are not able to stay in bed until a
certain hour but some must rise earlier than others in
order that their children may reach their means of trans»
portatlon on time,
(33) No directive has been issued by the school
ooard or by any other defendant that is discriminatory
against Negro school children as such as to health, culture
and other opportunities,
(3^) The high schools of Anderson County are not
°f equal quality and standing in respect to school plant,
teaching, health, recreation and educational facilities,
(35) There are courses of study offered in Clinton
Stipulations 65
High School that are not offered by any or all of the high
schools of Anderson County, and there are courses of study
offered at other schools of Anderson County that are not
offered at Clinton High School*
(36} The infant plaintiffs nor any of the plain
tiffs have demanded that they be afforded such courses in
the high school they have been attending during pendency
of this litigation^ however, the high school which infant
plaintiffs have been attending offers all the courses
that any high school in Anderson County offers and many
more in addition thereto*
(37) The high schools of Anderson County are not
maintained solely by funds derived from taxation of the
county*
(38) The high schools of Anderson County are
maintained in main by the State of Tennessee*
(39) The State of Tennessee contributes approxi
mately Qo% of the total towards maintenance of high
schools and elementary schools and the county contributes
approximately 20% towards maintenance of high schools
and elementary schools*
Ui-0) The salary of Prank E* Irwin, Superinten
dent of Schools of Anderson County, is paid entirely
by the State of Tennessee*
Uj-l) The salaries of the teachers of Clinton
Stipulations 66
High School are paid by the State of Tennessee but Anderson
County adds an additional #I<.6o00 per month to the pay of
each teacher which, on the average, makes the State of
Tennessee pay approximately 85$ of the teachers5 salary
and the county approximately 15$°
(lf.2) The State of Tennessee exercises supervision
of Clinton High School and the other high schools of Ander
son County, The State of Tennessee designates the required
number of courses, the number of teachers, the minimum
salary of teachers which is paid by the state and rates
the high schools, deteiminea the qualifications of
teachers, the type of school plant that must be made
available, etc,
(ij.3) The State of Tennessee has a rating system
applicable to Clinton High School and other high schools
of the state,
(Ijlj.) All of the high schools of Anderson County,
including Clinton High School, are rated f,A ” high schools,
(l|-5>) The high schools that have been designated
for infant plaintiffs to attend have been rated as ”A W
high schools,
(I4.6) The County Board of Education of Anderson
County is a creature of the State of Tennessee and it
was created by Private Acts of the General Assembly of
the State of Tennessee of 1939 in Chapter 375 of the
Stipulations 6?
Private Acts,,
(14.7 ) Superintendent Prank E„ Irwin holds office
authorized by the Legislature of the State of Tennessee,
(14.8) The qualifications for office of Superinten
dent of Frank E0 Irwin are fixed by the State of Tennessee.
(I49) The qualifications of high school teachers
of the State of Tennessee, including those of Anderson
County and of Clinton High School are fixed by the State
of Tennessee0
(50) D0 J„ Brittain is and was the Principal of
Clinton High School during the pendency of this litigation,
(5>1) D 0 Jo Brittain has no authority to deny
infant plaintiffs admission to Clinton High School and
he is, himself, subject to directive from the School Board
of both County and State in such matters,
(52) The school system of Anderson County, includ
ing Clinton High School, is maintained and operated in
accordance with laws enacted by the State of Tennessee
as to courses of study, qualifications of teachers,
salaries of teachers and health and safety precautions„
(53) The parents of children who are of school
age are required by the statutes to send their children
to school if physically and mentally capacitated to go
when children have reached their seventh birthday and
not past their sexrenteenth birthday.
(5lj.) This compulsory attendance law applies to
high school and elementary students who are within the age
limit.
(55) Austin High School of Knox County, Tennessee*
and Roekwood High School of Roane County* Tennessee* are
maintained by the State of Tennessee in tl© same manner
as the high schools of Anderson County are maintained
and are a part of the school systems of the State of
Tennessee.
(56) The Statutes of the State of Tennessee govern™
ing the schools of the State of Tennessee provide in part
that county school boards may send children from one county
to another when in the discretion of the board it is to
the best interest of the children.
(5?) The County Board of Education of Anderson
County does not maintain an elementary school in the Tom
of Clinton* Tennessee* for white children* but maintains
a school for Negro children.
s/ JOHN T. GILBERTSON
Empire Building
Knos/llie, Term,
s/ SIDNEY DAVIS
Jones Bldg.
Clinton* Tenn.
s/ BUFORD LEWALLEN
Jones Bldg.
Clinton* Term.
Stipulations 68
Counsel for Defendants.
(Entered Jam 2I4., 1952,}
IT IS ORDERED that the Motion of Defendants Frank
E« Irwin and D, J» Brittain to Dismiss, heretofore filed
In the above-entitled case, be, and the same is hereby
overruled, IT IS FURTHER ORDERED, however, that said
defendants Frank E„ Irwin and D* J® Brittain shall be
entitled to rely upon the matters stated In said Motion
to Dismiss, in defense, at the hearing of this case upon
the merits,
s/ ROBT, h, TAYLOR
United States District Judge
O R D E R
(Entered Jan, 21}., 1952,)
In the above-entitled case, the Court is of the
opinion that the objections stated in the second ground
of the Motion of Defendant County School Board to Dis
miss , have been cured by the Amended Complaint filed
herein by the plaintiffs,
THEREFORE, IT IS ORDERED that said Motion of
Defendant County School Board to Dismiss be, and the
same is hereby, overruled, IT IS FURTHER ORDERED, how-
ever, that said defendant County School Board, or County
Board of Education, shall be entitled to rely upon the
matters stated in said Motion to Dismiss, except the
Order1 70
matters stated in the second ground thereof, in defense,
at the hearing of this case upon the merits„
s/ ROBTo L„ TAYLOR
United States District Judge
ORDER OF TRIAL BY THE COURT
(Entered Feb, 13, 1952.)
Came the parties by their attorneys and this case
coming on to be heard by the Court without the interven™
tion of a jury, and the Court having heard part of the
evidence and the hour of adjournment having arrived,
Court was adjourned until 9 o ’clock tomorrow morning,
February llj., 1952,
ORDER OF TRIAL BY THE COURT
COUOLTJDED AND TAKEN TINDER ADVISEMENT
(Entered Feb. llj.p 1952.)
Came the parties by their attorneys and this case
coming on to be further heard by the Court without the
intervention of a jury, and the Court having heard the
remainder of the evidence, argument of counsel, took the
case under advisement. Parties are given fifteen days
within which to file briefs after the record is written
by the Court Reporter. The defendants are given fifteen
^ays within which to file reply brief, and plaintiffs
are given ten days within which to file reply brief.
71
TRANSCRIPT OF TESTIMONY
(Filed April 28, 1952)
IN TEE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
NORTHERN DIVISION, AT KNOXVILLE, TENNESSEE
JOKEATHER MeSWAIN, an infant, by Allen McSwain,
M s father and next friend,
JAMES DICKIE, an infant, by Clifford Dickie,
M s father and next friend,
WILLIAM DICKIE, an infant, by Clifford Dickie,
M s father and next friend,
LILLIAN WILLIS, an Infant, by 0. W. Willis,
her father and next friend,
SHIRLEY WILLIS, an Infant, by 0. W. Willis,
her father and next friend, and
ALLEN MeSWAIN
MRS, W. V. MeSWAIN
CLIFFORD DICKIE
MRS. MARY DICKIE
0. W. WILLIS
Plaintiffs
vs.
COUNTY BOARD OF EDUCATION OF ANDERSON COUNTY,
TENNESSEE, consisting of J. M. BURKHART, C. L.
BROWN, DR. J. M. COX, JACK DUNCAN, 0, C. MAYES,
THOMAS A. SHARP, and J. M, SISSON, as board
members, who together, as such, constitute the i
County Board of Education of Anderson County, :
Tennessee, .
FRANK E, IRWIN, Superintendent of Schools of s
Anderson County, Tennessee, and ;
D* J. BRITTAIN, Principal of Clinton High s
School, Clinton, Tennessee s
Civil No.
1555
Defendants
Proceedings 72
APPEARANCES;
Z. ALEXANDER LOOBY, Esq.
Nashville, Tennessee
AVON N. WILLIAMS, JR., ESQ.
CARL A. COWAN, ESQ.
Knoxville, Tennessee
Attorneys for Plaintiffs.
W. Bo LEWALLEN, ESQ.
SIDNEY DAVIS, ESQ.
Clinton, Tennessee
JOHN T. GILBERTSON, ESQ.
Knoxville, Tennessee
Attorneys for Defendants
The above entitled case came on for hearing
on February 13 and 1 I4., 1952, before the Honorable Robert
L. Taylor, Judge, without the intervention of a jury,
when the following proceedings were had, to-wits
THE COURTS Call the case.
THE GLERKs Civil 1555, Joheather McSwain and
others vs. County School Board of Anderson County, Frank
S. Irwin, D. J. Brittain, and others,
Mr. Looby, Mr. Williams, Mr. Cowan. Mr. Lewallen,
Mr. Gilbertson, and Mr. Davis.
THE COURTS Are the plaintiffs ready?
MR. LOOBYs The plaintiffs are ready, if your
Honor please.
THE COURTS Are the defendants ready?
Proceedings 73
Honor,
THE COURTS I notice from the file that certain
stipulations have been submitted by the defendants relating
to certain matters involved in the case.
I will ask the plaintiffs if they are in a posi
tion to agree on these stipulations as submitted by the
defendants,
MR. WILLIAMS; lay it please your Honor, the plain
tiffs also submitted stipulations,
THE COURT; I was going to get to that. The
reason I called the defendants’1 first is it seems to be
the longer, longer than the plaintiffs’ stipulation.
MR. WILLIAMS; If your Honor please, we were not
able to go over the stipulation item by item so as the
record stands I don’t believe the plaintiffs would be
able to stipulate,
THE COURT; Gan we go over them? There are 57
ol them. If there Is no controversy about the fact in
volved In each stipulation, then it will narrow the
Issues and shorten the proof materially. If there Is no
controversy about a certain fact, then it ought to be stipu
lated on,
MR. WILLIAMS; May it please your Honor, I think
that with reference to most of the extraneous material the
MR. LEWALLEN; The defendants are ready, your
Proceedings Ik
defendants have already admitted it by their failure to
deny in their Answer,
Actually we do have just about one issue in the
case now, and that is the question of whether or not the
defendants are providing a school in Anderson County for
Negro students, and, if not, whether or not their practice,
custom or practice of requiring Negro students to travel
to adjoining counties, traveling distances of from 19 to 25
miles or more, while white students are permitted to attend
the high school in Clinton, whether or not that constitutes
a deprivation of the equal protection clause to the plain
tiffs in this action.
Our proof will center primarily on that one
issue, whether or not they have got a school out there,
THE COURTS Isn't it admitted that they do not
have a high school in Anderson County?
MR, LEWALLEN; Yes, your Honor.
MR. WILLIAMS? They stipulate that?
MR, LEWALLEN% We stipulate,
THE COURT? Then you agree to that. Why intro-
duce proof on that subject, Mr. Williams?
MR. WILLIAMS? We wouldn't be Interested In Intro
ducing any proof on it If they so stipulated, I didn't
understand that they did.
MR. LEWALLEN? Your Honor, in our written stipula-
Proceedings 75
tion we have that stated I am sure,
MR. WILLIAMS; I believe they have stated in
their stipulation that they provide a high school for
Hegpo students of Anderson County, They don*t state where
that high school is provided, at least in the same paragraph
where they say they provided schools.
So at least there is some question in one5s mind
as to whether they are meaning they are providing a school
out there in Anderson County,
I examined the stipulation pretty closely, and
I don!t believe in the stipulation there is any clear
statement that there is no high school in Anderson County
where Hegroes may attend. I stand corrected, of course,
if there is such a stipulation.
THE COURT; Under their first stipulation it is
said that ’’white and colored children are required to attend
separate schools in Anderson County, This is required
under the authority of Code Section 2377 of the Code of
Tennessee, and Code Section 2393,9 of the Code of Tennessee
and also Article 11, Section 12 of the Constitution of the
State of Tennessee, This requirement is based upon the
directive of the Commissioner of Education and State Board
of Education of the State of Tennessee.”
Can the plaintiffs agree to that?
MR, WILLIAMS; The plaintiffs can agree to that.
Stipulations 76
if your Honor please.
THE COURT ; Then that point is stipulated. Is
that rights by both sides?
MR, LEWALLEHs Yes* your Honor, We stand by
all we have written down,
THE COURTS Second, "the school board provides
three high schools for white children living in Anderson
County, Tennessee, and provides one high school for Negro
children."
MR, WILLIAMS; If your Honor please, that is
what we can’t stipulate,
THE COURTS All right, cannot stipulate.
Third, "the infant plaintiffs are Negroes."
MR, 'WILLIAMS; Of course we can.
THE COURT; That Is stipulated by both sides.
Fourth, "the infant plaintiffs are citizens and
residents of Anderson County, Tennessee."
Can you stipulate as to that?
MR, WILLIAMS; Yes, we can, if your Honor please.
THE COURT; Fifth, "the Infant plaintiffs are
qualified as to educational progress for admission to
high school."
MR. WILLIAMS; We can.
THE COURT; All right,
MR. WILLIAMS; Yes, sir.
Stipulations 77
THE COURT; Sixth, "the infant plaintiffs are
residents of the United States and the State of Tennessee
and they reside and are domiciled in Anderson County,
Tennessee."
MR. WILLIAMSi We can go along on that, if your
Honor please.
THE GQURTs Seventh, "A Negro child came to D.J.
Brittain and asked him about coming to Clinton High School,
and D. J. Brittain told the Negro child that he would have
to talk to the County School Board and Superintendent about
this and the Negro child left D. J. Brittain’s office and
did not return. D. J. Brittain does not know the name of
the Negro child and cannot say whether or not he was one
of the infant plaintiffs. D. J. Brittain did not deny the
child entrance to Clinton High School nor did the child
make application for admission to Clinton High School,
said child talking to D. J. Brittain for approximately
five minutes as above set forth.”
MR. WILLIAMS! If your Honor please, we can’t
go along with that,
THE COURTS That is No. 7.
Let’s run along, No. 8, 9* 10* Mr* Williams,
1 2 , 1 3 , 1 J7, 1 5 , 1 6 , I? and 1 8 . I wish you would read
those and tell me the ones that you cannot agree to. We
will eliminate those, and the ones you can agree to. That
Stipulations 78
is on page 2.
first one,
THE COURT? You cannot?
MR, WILLIAMS? We can agree to 11, We cannot
agree to 8, 9, and 10 ,
THE COURT; All right. But you do agree to 11;
is that right?
MR, WILLIAMS? Yes, sir.
THE COURT; What about these others? 12?
MR. WILLIAMS? 12 we cannot agree to.
THE COURT? Cannot, All right.
MR. WILLIAMS? We cannot agree to 1 3 .
THE COURT? All right.
MR. ’WILLIAMS? Hor llj_, nor If?. We can agree to
l6. We can agree to l6, sir,
THE COURT2 All right,
MR. WILLIAMS? We can agree to 1 7 ,
MR, LEWALLEUs On 18 we will amend the mileage
on that, Mr, Williams, I was mistaken about the mileage,
MR. WILLIAMS? How is the mileage to be amended
now?
MR, LEWALLEU? 19 miles he said.
MR, WILLIAMS? We can agree to 11, That is the
MR. WILLIAMS? 19 miles to Austin, That’s all
right.
Stipulations 79
meat by way of substitution of 19 miles for 22 miles.
MR* LEWALLEN; For 17.
MR. WILLIAMS; 19 for 17 to Austin. What about
the mileage to Oliver Springs?
MR. LEWALLEN; I think it is 22 miles, supposed
to be right on that.
MR. WILLIAMS; It is all right. We will agree
to It,
MR, LEWALLENs The first line, your Honor, which
is the line.
THE COURT; We are talking about 17?
MR. WILLIAMS; No, Item 18.
THE COURT; Let me get item 17 straightened out
first. What is the amendment to that?
MR. WILLIAMS: No amendment to that. We agree
to 1 7 .
THE COURT: All right. Now 18?
MR. WILLIAMS; We agree to 18 with the substitu
tion of 19 instead of 17 miles to Austin High School.
THE COURT; All right. Let’s go to page 3, and
go over the items on that page, and tell me, Mr. Williams,
the ones you can agree to and the ones you cannot agree
to „
THE COURT: Then you agree to 18 with the amend-
MR, WILLIAMS; We could agree to 21, if your Honor
Stipulations 80
please, with the amendment that the transportation, that the
county began furnishing transportation to the infant plain
tiffs after this suit was filed. If the defendants are
willing to agree to that,
MR, LEWALLEU? We can’t agree to the amendment,
may it please the Court.
MR. WILLIAMS? We can’t agree,
THE COURT? All right, gentlemen, you can’t
stipulate on that. You cannot agree to any stipulation
on page 3, so that beginning with 19 and ending with 32
inclusive you cannot agreej is that right?
MR, WILLIAMS? We can’t agree to anything from
19 to 32, We can’t agree to anything on that page.
THE COURT? Let’s turn to page I4., item 33 to 1|3
inclusive. Tell me if you can agree to any of those items.
MR, WILLIAMS? If your Honor please, on page Ij.
we can agree to one item, item ij.3,
THE COURT? Item ij.3 is agreed to. All other items
are not agreed to,
MR. WILLIAMS; All the other items are not
agreed to.
THE COURT? Turn now to page 5> and consider items
^ inclusive.
KIR. WILLIAMS? We agree to )|)j.
THE COURT? Ijij,.
Stipulations 81
THE COURT 1 1|6 was agreed to,
MR. WILLIAMS? And Item ij.7 we agree,
THE COURTS I4.7 is agreed to.
MR, WILLIAMS? I4.8 we agree.
THE COURT? lj.8 Is agreed to,
MR. WILLIAMS? We agree to item 50.
THE COURT? Item 50 is agreed to.
MR, WILLIAMS? We also agree to Item I4.9,
THE COURT ? 1+9.
MR. WILLIAMS? We agree to Item 52.
THE COURT? 52 agreed to,
MR, WILLIAMS? And we agree to item 53-
THE COURT? 53 agreed to.
MR. WILLIAMS? And agree to Sk*
THE COURT? Turn to page 6, and consider items
55 through 57 inclusive.
MR. WILLIAMS? May it please your Honor, that!s
all we can agree to.
THE COURT? In order that the record may be
clear, I will ask the court reporter to read the items
on the proposed stipulation that have been agreed to.
(The record was read by the court reporter,)
THE COURT? Is the record clear on those agree
ments?
MR, WILLIAMS? We agree to item I4.6.
Stipulations 82
THE COURTS The record is in accordance with your
understanding.
Let’s turn to the stipulations submitted by the
plaintiffs and determine whether or not there are items
on which you can agree and the ones you cannot agree. Turn
to page 1 , items 1 to 3 inclusive.
MR. GILBERTSON? No. 1 is satisfactory, your
Honor.
THE COURT; Agreed to.
MR. GILBERTSON? No. 2 is not agreed to. No. 3
is agreed.
THE COURT? All right. Go to page 2, items Ip to
6 inclusive.
MR. GILBERTSON? No. I4. is not agreed to. No. 5
is not admitted, your Honor.
THE COURT? What about No. !{.?
MR. GILBERTSON? Not agreed to.
THE COURT? No. 5 and No. 6?
MR. GILBERTSON? No, 6 is not agreed, your Honor,
THE COURT? How about N0. 5?
MR. GILBERTSON? No, sir, that was not agreed.
THE COURT? Neither Ij., on 6 agreed to.
MR. GILBERTSON? No, sir.
THE COURT? Turn to page 3 and consider Items
MR. LOOBY? It is, your Honor.
Stipulations 83
7 and 8 inclusive.
MR. WILLIAMS? It may be that I changed mine
before I filed it and I hadn’t given you all notice. I
have 25 in there. I amended mine to 19 .
MR. LEWALLEN; We can make amendments on distances*
your Honor* and agree I think there.
MR. WILLIAMSs On the distances.
MR. LEWAL3LEN; We have stipulated already I think
it is 19 miles, just a different distance in that stipula-
ti on.
THE COURTS We are considering 7s but I do not
understand.
MR. LEWALLENs 17 in their stipulation, they had
25 miles, and we have determined the correct and exact
distance to be 19 miles.
THE COURTS That Is what they have it, is it not?
MR. LEWALLENs They have It 25.
MR. WILLIAMS? If your Honor please, I checked
after I made that up, and when I checked the distance and
found it 19 , and Ichanged it on the copy I filed but had
already mailed their copy and I hadn’t notified them yet of
that change.
MR. UILBERTSONs We can’t read to see whether
it is filed.
THE COURT? rtThe distance from the residence
of the plaintiff, Joheather IpSwain, to Austin High School*
Knoxville* Tennessee* is approximately 19 miles.”
Is that correct!
MR. WILLIAMS; Yes, sir.
MR. GILBERTSOU? That is agreed to.
THE QOXJRT; "While the distance from her home
to Clinton High School is approximately l/l+ mile."
MR. GILBERTS©!; Just a moment, if your Honor1
please.
That Is satisfactory, your Honor.
THE COURT; "The distance from the residence of
the plaintiffs, James Dickie and William Dickie, to Austin
High School, Knoxville, Tennessee, is approximately 19 and
l/i}. miles, ”
MR. GILBERTSON; That is satisfactory.
THE COURT; "While the distance from their home
to Clinton High School is approximately l/2 mile.”
MR. GILBERTSON; That’s correct.
THE COURT; "The distance from the residence of
the plaintiffs Lillian Willis and Shirley Willis, to Austin
High School, Knoxville, Tennessee, is approximately 19 and
1/8 miles.”
MR. WILLIAMS; May It please your Honor, I have
since found out that that was In error. I computed the
distance from her home to the bus stop, 6/8 mile. I found
Stipulations 81+
Stipulations 85
it was 1 mile instead of l/8 mile,
THE COURT; You want to amend?
MR. WILLIAMS; I would like to amend that to
one mile, If counsel for defendants will agree,
THE COURT; All right,
MR. WILLIAMS; That would make it 20 instead of
19 and 1 /8,
MR. GILBERTSON; Your Honor, I don’t think it is
too pertinent. We have got ,9 and they have got ,5.
THE COURT; Either side, if you want to, can put
a witness on on that point. You are so close together.
I do not think it will be necessary.
MR, GILBERTSON; That is satisfactory, your Honor,
THE COURT; ’’While the distance from their home
to Clinton High School is approximately between I/I4. and
1/2 mile,”
MR, WILLIAMS; May it please your Honor, now
that should be one mile,
THE COURT; You agree to that, as I understand
it,
MR, GILBERTSON; Yes, your Honor,
THE COURT; What about No, 8 on page 3?
MR, GILBERTSON; Joheather McSwain isn’t in the
lawsuit. She wasn’t going to school.
MR. WILLIAMS; That’s right. She Is out of school.
Stipulations 86
The first part of No. 8 wouldn't be applicable,
MR. WILLIAMS? May it please your Honor, the
plaintiff J’oheather MeSwain was registered and attending
school at Austin High School at the time the suit was
filed. However, she graduated last year, so that she is
at present not in school.
THE COURT? Then the first sentence in No. 8 conns
out.
MR. LEWALLEN; She is graduated, your Honor.
MR, LEWALLEN: We just haven5t checked it because
she wasn't on the roll.
MR. WILLIAMS; We will agree to the stipulation
coming out as to that.
THE COURT; Read the rest, gentlemen, and see
if we can agree to that.
MR. WILLIAMS; May it please your Honor, again
here In regard to the two Willis children, the distance
should be changed to one mile.
THE COURT; Instead of between l/2 and 3/k miles,
put it one mile?
MR. WILLIAMS; One mile; yes, sir.
MR. LEWALLEN; Your Honor, we can agree to No. 8
here down to about half way down where it starts f,The travel
t ime by bus.
MR. GILBERTSON; I have stricken there to where
Stipulations 87
it says, ’’The plaintiffs James Dickie and William Dickie
are required to walk approximately 3/k raile to the point
where they may board the bus for Knoxville, Tennessee. The
plaintiffs, Lillian Willis and Shirley Willis are required
to walk approximately between l/2 mile and 3/k rail® to the
place where they may board the bus for Knoxville, Tennessee.
That is agreed.
THE COURTS You can agree to the first ten and
one-half lines?
MR. GILBERTSONS Yes, sir.
THE COURTS That’s all you can agree to in No, 8?
MR. GILBERTSONs Yes, your Honor.
THE COURTS Your agreement stops with the words
"Knoxville, Tennessee," in that paragraph? is that correct?
MR. GILBERTSONs Yes, sir. Can’t agree to No. 9«
THE COURTS Turn to page Ip, and consider 9 to
12 inclusive.
MR. GILBERTSONs We cannot agree to No. 9»
THE COURTS How about No. 10?
MR. GILBERTSONs We cannot agree to No. 10, your
Honor, or to No, 11-. That is not agreed to.
THE COURTS All right,
MR. GILBERTSONs We cannot agree to No. 12.
THE COURTS You do not agree to any tiling on page if
Turn to page 5 and consider items 13 to 1? inclu
Stipulations 88
sive.
I believe he is mistaken.
THE COURTS You mean item No, 13?
MR. GILBERTSON? Yes, we are under Private Acts
instead of the Code,
THE COURTS You cannot agreej is that right?
MR. GILBERTSON? Yes.
THE COURT? What about lip?
MR, GILBERTSON? That is satisfactory, your Honor,
THE COURT; Agree to that?
MR. GILBERTSON; Yes, sir.
THE COURT; How about 15?
MR. GILBERTSON; We cannot agree to 13’, your Honor.
THE COURT; 16 and 1 7 ?
MR. GILBERTSON; l6 is not agreed to. We cannot
agree to 1 7 .
THE COURT; 17 goes to page 6,
In order that the record may be clear, I will go
over these items again, and see if I have the ones that
you are agreed to correct.
The defendants agree to items 1 and 3 in the
stipulation submitted by the plaintiff, They also agree
to item 7* Defendants also agree to item 8 with the first
sentence eliminated and with the amendment one mile instead
MR, GILBERTSONS It is a private act, your Honor.
of one-half and 3/h mile in reference to the distance
traveled by plaintiffs Lillian Willis and Shirley ’Willis,
and the agreement as to item No. 8 stops with the words
’’Knoxville, Tennessee.” Is that right?
MR. GILBERTSON; Yes, sir.
THE COURT; So that beginning with the words
in the middle of that paragraph, ’’Travel time of plaintiffs
from the point of departure in Clinton, Tennessee,” on
towards the end of item 8 is not agreed to.
MR. GILBERTSON; That’s correct.
THE COURT; Item lip is agreed to by the defendants?
MR, GILBERTSON; That’s correct.
THE COURT; All right. As I understand It, those
are the only items that the defendants agree to.
MR, GILBERTSON; Yes, your Honor,
THE COURT; Are there any other preliminary
matters to be gotten out of the way before we start on
the proof, gentlemen?
MR. GILBERTSON; Your Honor, I would like to
call the attention of the Court to these motions heretofore
filed. Of course, an order was set down that they would
be taken up on the hearing on the merits and rights were
preserved.
THE COURT; Yes, sir.
Stipulations 89
MR. GILBERTSON; At this time, and If I understand
Proceedings 90
your Honor correctly, yoi don’t wish to hear those motions
at this time.,
THE COURTS I want to hear the proof, and I will
consider the motions at the time I consider the case on
the merits as a whole, When we get to the argument, I will
be glad to hear either side on the motion if they want to
be heard.
(Whereupon, the witnesses were sworn.)
THE COURT? Is the rule requested by either side?
MR. COWAN: It is, your Honor.
MR. GILBERTSON: Your Honor, the defendants
will be allowed to remain in here, all the members of the
school board, all members of the school board — will they
not?
THE COURTS The plaintiffs will be allowed to
remain in also, plaintiffs and defendants. All parties
to the suit will be permitted to stay in the court room,
but all other parties will be required to go to the room
designated by the marshal.
(Whereupon, the witnesses were excluded from the
court room,)
THE COURT: The plaintiffs may call the first
witness.
MR, WILLIAMS: May it please your Honor, the
plaintiffs call Mrs. Allen McSwain.
91
MRS, ALLEH MC SWAIN
called as a witness by and on behalf of the Plaintiffs, being
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR, WILLIAMS:
Q, You are Mrs, McSwain?
A I am.
Q Mrs, McSwain, In all your answers to the questions,
please speak as loudly as possible so that the Court can
hear,
A All right,
Q You are a resident of Clinton In Anderson County,
Tennessee! is that correct?
A That * s right»
Q How long have you been living in Anderson County,
Mrs, McSwain?
A 19 years,
Q 19 years?
A 19 years,
Q Have you any children?
A I have 1 2 ,
Are all those children living?
A Yes, sir.
^ They are all living?
A Yes.
Q How many of those children are or have been of high
school age?
A Pour.
Pour of them. Have they attended high school?
Tha t * s right.
Did they attend high school in Anderson County?
No.
None of those four children who have attended high
school attended high school in Anderson County?
A No.
Q Why did they not, Mrs. McSwain?
A ®ell, they had set a school apart at LaPollette f o r
the colored to go to.
Q Is LaPollette in Anderson County?
A No, it isn’t.
Q Is there and has there been — first, I will ask you
has there been a school, a high school in Anderson County
for Negroes at which Negroes were allowed to attend?
A We had at one time.
At what time was that?
A It has been several years ago. I don’t knowexactly.
But anyway we had two year high then. It only lasted for
about one year, I think, if that long.
About how many years ago was that?
Oh, approximating, that has been some ten or twelve
Testimony of Mrs. Allen MeSwain 92
Testimony of Mrs, Allen McSwain 93
years ago,
Q And prior to that time had there been a school in
Anderson County at which Negroes were allowed to attend?
A Not that I know of.
Q Since that time has there been a school in Anderson
County provided by the county where the Negroes could
attend high school?
A None.
Q Is there presently a Negro high school in Anderson
County?
A Not any that I know of.
Q, I believe you had a daughter who finished high school
last year?
A Yes.
Q, A party plaintiff to this suit?
A I did.
Q Her name is Joheather McSwain?
A Joheather, that’s right,
Q ®hat were the conditions of her attendance at high
school when she was going to school, Mrs. McSwain?
A Well, she had a tough time,
THE COURTS Mr. Williams, is it or not the issue
to determine whether or not this injunction shall issue —
one of the issues, the principal issuej and am I not to
consider the facts which exist now to determine whether or
not this injunction should issue?
MR, WILLIAMS} Yes, if your Honor please. However,
I am trying to bring out through this witness soi* of the
hardships which bear on the situation of the students
who are presently attending Austin High School,
This witness is a resident of Anderson County, has
had four children who attended high school at Austin,
one just last year, and was attending at the time the
suit was brought.
MR, DAVIS? We are going to object to Mr, Williams
pleading his case at this time, his argument.
THE COURT} I will be glad to hear each side.
That is all right,
MR, WILLIAMS: If your Honor please, we are inte
rested in proving the custom and usage of the defendants,
the practice of the defendants in reference to the infant
plaintiffs who go to high school. And this witness would
have personal knowledge of that custom and practice.
THE COURT! You mean custom that exists right now?
MR. WILLIAMS? Yes, sir.
THE COURT; All right, I will let you do that now.
But back years ago, I do not think you should go into that,
because I would not have any right to Issue any injunction
on a state of facts that existed several years ago.
MR. WILLIAMS; All right, sir. I will direct my
Testimony of Mrs* Allen Me Swain 9̂-
Testimony of Mrs. Allen MeSwain 95
questions to the present, the present conditions.
Q (By Mr, Williams.) Do you know anything of the
present conditions of the students who attend, Negro stu
dents in Anderson County who attend Austin High School,
Mrs. MeSwain?
A Do you mean when this suit was filed?
Q, Present conditions now.
A The present conditions now?
Q The distance they have to travel -- well, they have
stipulated that, haven’t we.
The time that they have to get up in the morning and
things of that nature?
A Well, they have to get up now around —
Q. I want information as of your own knowledge, Mrs,
Me Swain.
A Of my knowledge„
THE COURTi That is right, and give me the ones and
tell me the time,
THE WITNESS% At the present time I don’t have any
going to high school, you see,
^ (By Mr, Williams) So you wouldn’t know?
^ I wouldn’t know that because I don’t know how that
the other people have to do.
MR, WILLIAMS? May it please your Honor, I submit
that it wouldn’t be inappropriate for us to show what the
Testimony of Mrs. Allen MeSwain 96
conditions were less than a year ago in reference to this
particular plaintiff and to show as far as we can that
those conditions have not changed since that time,
THE COURT; All right, I will let you go into that.
Q (By Mr, Williams) Mrs. Me Swain, as I understand
it, your daughter was in school less than a year ago at
Austin?
A That’s right.
Q, What time in the morning did your daughter have to
get up in order to get off to school?
A Well, she most generally would get up at six o ’clock.
Q. As I understand it, she attended school at Austin
High School?
A That’s right.
Q In Knox County?
A That ’s right.
^ She had to get up at what time?
A At six.
^ At six o ’clock?
A Yes.
^ Do you know what time the bus left Clinton for Knox
ville, Tennessee?
Approximately, I think it was 7»30, either 7;10 or
7530.
lhat time did you have to get up, Mrs. McSwain, to
Testimony of Mrs, Allen McSwain 97
get your daughter off?
A Well, I would have to get'up about 500.
Q, You had to get up at 5*30 in order to get your
daughter off?
A To get her off,
Q What time did your daughter arrive home from school?
A Well, sometimes it would be on the four o ’clock bus;
other times if they had to practice, it would, be later than
that.
Q 'When you say the four o ’clock bus, do you mean
arrive in Clinton?
A No, it left Knoxville at four.
Q Left Knoxville at four?
A That’s right.
Q I will ask you, Mrs, McSwain, at that time was the
County of Anderson furnishing free transportation to your
daughter?
A No.
^ As of your own knowledge do you know that the county
was not furnishing free transportation to Negro students
in Anderson County who attended out of county schools?
^ No, they furnished transportation for the others
after this suit was filed. But I didn’t get mine.
^ But before this suit was filed, Anderson County was
not furnishing transportation?
Testimony of Mrs. Allen MeSwain 98
A That’s correct.
Q For Negro students?
A They didn’t.
Q To go out of the county as they were required to
do to attend high school.
Do you know how long after the suit was filed it
was before they began to furnish transportation?
A I believe it was in January.
Q It was in January of what year now?
A That was in *50.
Q January of ’50?
A It was either ’50 o r ’5>1» It was in ’5l»
Q ’51?
A *5i*
Q. January of 1951* So that your daughter during the
entire year before and after the county started paying
transportation was paying her own transportation?
A That’s correct.
^ Was that on a school bus or commercial bus?
A No, that was a commercial bus.
At that time did the county provide a school bus?
A - No.
For the transportation of Negro students to out of
county schools?
A No.
Q Do you know, Mrs. McSwain, as of your own knowledge
how long it required, it was required for that commercial
bus to make the trip from Clinton to Knoxville?
A About minutes,
Q About I4.5 minutes.
Were there any hazards associated with that, that
you know of?
A Yes, sometimes when the weather was bad, they had
a bad way of getting there because sometimes the roads
were slick, and they were thrown late in school.
Q Did you ever receive any notices from the school
authorities that your daughter had been late in school?
A Yes, I had.
® You say that sometimes the roads —
A Were slick.
Q, — were slick?
A Yes.
^ And that involved a hazard?
A Yes, sir,
^ Do you know anything about what happened at the time
after the commercial bus arrived in Knoxville? Do you know
whether that bus took your daughter directly to the school
or what?
A
Testimony of Mrs. Allen McSwain 99
a
No, it didn’t.
Where did it take her?
Testimony of Mrs, Allen MeSwain 100
A To the bus terminal.
ft The bus terminal in the City of Knoxville?
A In the city, that is correct,
ft Is that correct?
A That * s correct.
ft How then did she get from the bus terminal to the
school?
A She sometimes would walk and sometimes she would
catch the street bus.
ft Do you know how far it is from the bus terminal
to the school?
A I would average it at around a mile,
ft At the time when she rode — you say she caught
the bus?
A The bus. Sometimes she would catch the bus.
ft And she paid?
A And sometimes she walked,
ft Did the Anderson County pay for that?
A No,
ft At the time that your daughter was paying this
transportation, how much did the transportation cost, Mrs.
MeSwain?
A WeXl3 it began at #3 ,60, I think, and then it went
UP to flj.. 50.
ft What was it in the year
Testimony of Mrs* Allen McSwain 101
A It was k ~ f|.50.
a 14 .60?
A fl|.,6o or 14.50.
Q, That was for how much transportation?
A 20 days *=>- 20 rides.
Q 20 rides?
A Yes.
Q And she went back and forth each day, so that would
be two rides a day?
A That’s right.
Q How many days a week?
A Five.
Q Five days a week. So that would be approximately
two weeks, f4»6o every two weeks?
A Yes.
Q Did Anderson County ever offer to pay that transporta
tion?
A Yes, they did back when she first started school,
they paid the transportation but they didn’t pay the tuition.
Q I see.
^ So then when they paid the tuition, they told us
then that we would have to furnish transportation. So that
is the way it was.
What time, Mrs. McSwain, did your daughter get home
in the evening? What time did she arrive home? I think you
Testimony of Mrs, Allen MeSwain 102
said she caught the four o 8clock bus?
A The four o 8clock bus*
ft That meant that the bus left Knoxville at four o ’clock
is that correct?
A Ye s0
ft lhat time did she arrive home?
A It taken her around about, I would say well it was
about five o ’clock when she would get home,
ft Did you need your daughter at home?
A Yes, I did,
ft lhat did you need her for?
A Well, have eight or nine other small children there
to be cared for, and I needed her to help me do the work,
ft If she had been attending school in Clinton, what
time would she have got out of school?
A She would have got out of school at 3’30«
ft lhat time would she have gotten home?
^ It would have taken her just about five or ten
minutes,
ft So that she would have gotten home at 3sipO on the
out side; is that correct?
& Yes0
ft So that you lost approximately an hour and twenty
minutes?
A That is correct.
Q Of hen time per day| is that correct?
A Yes, sir.
Q, And in addition to that, the traveling time in the
morning and the afternoon increased the length of time
required for the process of going to school?
MR, DAVIS; Your Honor, we want to object to the
counsel leading the witness in the manner in which he is,
MR. WILLIAMS; If your Honor please, I will rephrase
it,
MR. DAVIS; He may ask her a direct question and let
her answer.
MR. WILLIAMS; I will rephrase that, if your Honor
please.
^ (By Mr. Williams) How great an increase would you
estimate was made in the time required for your daughter
t0 go and sit in and return from school by reason of the
fact of her having to go to Austin High School in Knoxville?
A ®hat was the increase of her time?
^ Yes, over the time which would have been required
if she had been attending school in Clinton?
Two hours or more, I will say about two hours and
a half,
^ It took her two hours longer?
A That?s right.
To go to school at Austin than it did at Clinton.
Testimony of Mrs* Allen MeSwain 103
What about expenses, Mrs. McSwain, in addition to
the transportation which wasn't being paid at that time?
Were there any other increased expenses caused by your
daughter having to come to Austin?
A Yes. Her lunch. We had to pay for that. Then her
clothing.
Q You wouldn't have had to pay for lunch at Clinton?
A Well, no, because she could have come home.
Q How much did you have to pay for lunch?
A Well, that run according to whatever she wanted to
eat. Sometimes it was 5>0 and sometimes $1, and maybe more
than that,
Q What about her clothes? You say something about
her clothes?
A Yes.
Q. lhat about those?
A Well, she had to have extra clothes for traveling to
and from.
Q Why? Will you explain that more clearly?
A I will explain because the buses were dirty. Well,
if she put on a clean dress in the morning, when she came
back that afternoon, it had to go in the cleaners because
it wouldn’t be fit that she could even think about wearing
bhe next day, so had to have extra clothing on that account,
Do you know of any other increased expense?
Testimony of Mrs. Allen Me Swain lOlj.
Testimony of Mrs. Allen MeSwain 105
A Well, her books,
Q Wouldn't you have had to pay for those in Clinton?
A I imagine so*
Q What about after school activities, Mrs. McSwain?
A Well, she couldn't take very much part in the after
school activities although she did in some.
Q She did?
A She did in some, but she had to pay her own expenses.
Q How would that affect the time she arrived home?
A That made it later. If she taken part in these
activities, well, sometimes it was maybe 9 op maybe 10
o'clock, it has been later than that, when she would get
home.
Q After the county school board started paying you ~-
I think you testified, did you not, that originally they
were paying the transportation and were not paying the
tuition?
A The tuition.
^ And then they agreed to pay the tuition and told
you you would have to pay the transportation?
A That's right,
^ After that time did you ever at any time request them
to pay or defray the cost of transportation of your daughter
to Austin High School?
Ho, I didn't. After they explained to me how that
they could do* that is, the superintendent explained it
to Die»
Q, What was the superintendent’s name, Mrs. MeSwain?
A Mr. Prank Irwin. And he explained that the best
that they could do at that time would be to pay the tuition,
because the tuition was so high that they couldn’t pay the
transportation and tuition, but they would pay the tuition
if we would pay the transportation. So we agreed to pay
the transportation if we couldn’t do any better.
Q, Mrs. MeSwain, do you know of your own knowledge
whether or not Anderson County was at that time furnishing
transportation to white high school students to attend a
high school within Anderson County?
A Well, I imagine so because they had school buses
running.
Q What is that?
A They had school buses running.
Q They had school buses running?
A Yes.
That the defendants had school buses running at
that time ?
A That’s right.
Q Do you know who the school buses were servicing?
A The Anderson County students, white students.
^ Did those students include high school students?
Testimony of Mrs., Allen Me Swain 106
A That’s righto
Q As I understand it, at that time they did not have
any school buses running for Negroes?
A No,
Q At what time was that?
A That was before this lawsuit and after this lawsuit.
They had on school buses for the whites for several years
that I know of.
ft Let me ask you this % Did you at any time during
the year 1950 make a visit to the principal of Clinton
School?
Yes, I did.
What is his name?
Mr. Brittain,
At what time did you make that visit?
At the beginning of school.
Beginning of school?
The school year.
At what term?
That was in September.
In September of 19.50?
1950.
By the beginning of the school, what do you mean?
When school opened.
The first day of school, is that what you mean?
Testimony of Mrs, Allen McSwain 107
High
A
ft
A
Q
A
Q
A
ft
A
a
A
ft
A
ft
Testimony of Mrs* Allen MeSwain 108
A Yes, that’ s correct*
Q, Were they enrolling students on that day?
A They were*
Q Did anyone accompany you on that visit, Mrs* McSwain?
A Yes, they did*
(Q, Will you please state the names of the persons you
accompanied?
A Roderick McSwain as spokesman, Mrs* Dickie, and
Reverend Willis*
Q, What is the first name of Mrs* Dickie?
A Mary Dickie* And Reverend 0* W. Willis*
Q With the exception of Roderick McSwain, those were
all adult plaintiffs?
A That’s right*
0. Were there any other persons who attended?
A Joheather McSwain.
Q As I understand it, she is your daughter?
A That’s right*
Q And was attending high school at that time?
A That’s right* And William, and 1 forget the other
boy’s name, hut both of those were Dickies*
Q Mrs* Dickie’s boys?
A Mrs* Dickie’s two boys, yes*
Q What transpired at that meeting on that occasion?
A Well, my son was spokesman and he went into the
office and asked Mr. —
-MR. LEWALLENs May it please the Court, we are going
to object to anything her son might have said as hearsay.
MR. WILLIAMS? May it please your Honor, she is
entitled to testify
THE COURT? Go ahead.
Q (By Mr. Williams) What did your son say at the
time ?
A H© told Mr. Brittain that he had some students to
enroll, and he wanted to enroll them here at this school.
Mr. Brittain told him, he said, "We don’t enroll
colored students here.” And he says, '"You mean to say
that we can’t enroll?” He says, ’’No, you can’t. You can
go to the superintendent’s office, and he will enroll you
there, probably at LaPollette or some place else.” But
he says, "You go to the superintendent and he will enroll
you there.”
ft On this when you said "LaPollette," you followed
that with "or some place else." You don’t know whether
he said that?
A No, I know he said that.
ft You do remember his mentioning the superintendent
would probably enroll them at LaPollette?
A That’s right. It seems as in doubt as to whether
it would be LaPollette or where it would be, but he mentioned
Testimony of Mrs. Allen McSwain 109
Testimony of Mrs, Allen MeSwain 110
LaFollette,
Q Was the plaintiff Joheather IcSwain present at that
time?
A She was there,
Q She was present so that Mr, Brittain could see her?
A She was, hut I don't know whether he saw her or
not. I can't say that,
Q The Dickie hoys I think you said one of them
was named William?
A William, yes.
Q And the other. Were they there at that time?
A Yes, They were there,
Q Wore they there so that Mr. Brittain could see them?
A 1 don't know whether he saw them or not,
Q Did anything further transpire in Mr, Brittain's
office?
A No,
Q Did you visit any other place after you left Mr,
Brittain's office?
We went to the county superintendent's office.
Who went to the county superintendent's office?
My son.
'What was his name?
Roderick IcSwain, and Reverend 0, W, Willis. Mrs.
Dickie couldn't go at that time because she was, I think she
A
Q
A
Q
A
was going to work or might have been going to Knoxville,
but her sons they weren’t there,, neither was my daughter.
They were fixing to leave to come to Knoxville because
school opened over here*
Q Tell us what transpired at the ■=— you said you went
to the county superintendent’s office?
A County superintendent’s office0
Q, Is that right?
A That’s right®
Q, Who was he?
A Mp„ Prank Irwin®
Q What transpired at that office?
A Well, my son told him there what that we did, this
delegation had gone --
Q He told him what he had said?
A Yes®
Q Told Superintendent Irwin?
A That’s right®
Q What he had said to —
A That’s right®
$ Mr® Brittainj is that correct?
A That’s right. That’s correct® So Mr® Irwin told
Mm, he says, "You knew that you couldn’t enter school
there, didn’t you?" He says, "You know white and colored
Kon’t go together in Tennessee, in the State of Tennessee."
Testimony of Mrs, Allen MeSwain 111
Testimony of Mrs* Allen Me Swain 112
So they talked about that for a few minutes0 Then
he said* “Well* I will show yocu I will get the Tennessee
state law and show you thato” So he did0 He got the
Constitution and he read in there where that the Negroes
and whites* it was against the law for them to go to school
together**
So he told us there then* he said* ”Now* I have been
nice to you people,” and he says* ’’You have gained more
by me being in here than what you had*” so I understand
from what he says from way back0
We agreed with him* He says* ”Now I want you to
not do anything rash,” He said* ’’The thing I want you to
do*” he says* ”if you just have patience* the school board
is just like your home,, We do not have money enough to
do what we want to do with you*” and he says* ”1 imagine
in time*” said* ”it may take several years to do that*
but I imagine in time after this school, bond issue comes
through we will be able to do something for you people.”
Q Now* Mrs* McSwain* did Roderick MeSwain make any
request of Superintendent Irwin at the time this meeting
took place in his office?
A Well* he told him that we were wanting to go to
school* wanted our children to go to school in. Anderson
County,, And he explained to him. that he didn't see why
that we couldn't go because it wasn't right that we would
go to another* county to go to school when this was the
county seat, but he explained that the school board had
set apart LaPollette for the colored to go to, and he
didn’t understand why it was that we wasn’t satisfied with
going there» So I told Superintendent Irwin that the
reason we weren’t satisfied was because it wasn’t an
accredited high school, And he first said that it was
and later he said it was a 0 grade schools
Q Let me stop you just a minute. At that time LaPol
lette high school was designated?
A That’s correct,
Q - As the high school for Negro students?
A Tha t5 s ri ght,
Q, To attend?
A That is correct,
0, Did Mr, Irwin tell you anything at that time or at
any other time about the rating of that school at LaPollette?
Testimony of Mrs, Allen Me Swain 113
A He said it was a C grade school.
Q Did he say that at that time or at some other time?
A He told us that time, and he has told us another
time „
Q He has told you personally?
A Yes,
Q Times before?
A That’s right
Testimony of Mrs„ Allen MeSwain
Q In summary of what happened, as I understand it,
you have testified, have you —
MR„ LEWALLENs I want to object to the leading
questions again„
MRo LOOBYs He hasn't asked it yet„
MRo LEWALLEMs He is summarizing,. That is what
he is going to do0
MRo LOOEYS Summary isn't necessarily leading.
THE COURTS Let me hear the question, and then I
will pass on the question,, What is the question?
0, (By Mr« Williams) I was about to ask the witness
may it please your Honor, if she had testified that Rode
riek 1cSwain told the superintendent that they wanted to
enroll some Hegro students?
A That's righto
Q There and that the superintendent told you that
white and colored didn't —
That is corrects
~ go together in the State?
Of Tennessee.
Of Tennessee, and took down —
The state «*•■»
Took down some state --
Law„
Took down some state law and read it to you?
A
Q
A
Q
A
Q
A
Q
A That’s correct,
Q, Showing that white and colored didn’t go to school
together in the State of Tennessee?
A That’s correct.
MR. WILLIAMS% Your witness.
THE COURTS Gentlemen;, I suggest when we reconvene
here this afternoon that we make every effort to confine
our proof to what exists in Anderson County now.
You are asking me to do certain things here in
your pleadings. The main thing that you ask, as I under-
stand it, is an injunction.
I want to repeat to you that I have to act on the
facts that exist out there in Anderson County now -- not
a year ago, not two years ago, but now.
I have let you go into this to show the background.
But I think that from now on we ought to do our best to
confine our proof to the existing facts and circumstances.
MR, LOOBYs If your Honor please, in our pleadings
and complaint we allege that this act was in compliance
or in keeping with a custom, usage and practice. The only
way we can show the custom and usage is to show that this
thing has been going on for some time. We have some wit
nesses here to prove that.
But now if I understand your Honor that the custom
has been sufficiently established so that we need only
Testimony of Mrs, Allen MeSwain 11$
prove the existing conditions now —
THE COURTS I think that that has been established
by this witness now.
If the other side should go into that, after cross
examining this witness, if the other side should attempt
to go back, and if you feel you are entitled to present
other proof on that point, then I will hear each side,
MR. LOOBYg Very well, sir.
THE COURTS When that question arises. But the Court
has gathered what the custom was from this witness.
MR. LOOBYg If there is no further proof, we will
leave what has been the custom and simply proceed now,
in an effort to expedite the trial, to what exists at
present.
THE COURTS At present.
MR. LOOBYs Very well, sir.
THE COURT? That is right. With the understanding
that if the defense undertakes to bring witnesses in to
go into a year ago as this witness has testified about,
then I will hear you if you want rebuttal on that.
MR. LOGBYg Of course, if your Honor please, we are
heartily in accord with your Honor and your Honor5s ruling
is eminently correct. Things that everybody knows that
exist over a period of years, I don't see any necessity of
proving it, but we are bound to prove everything that every
Testimony of Mrs. Allen MeSwain ll6
body knows.
THE COURTS Adjourn court until Is30.
(Whereupon, at 12s00 o’clock noon, court was adjourned
until ls30 o ’clock p.m., when the following proceedings
were had s)
CROSS EXAMINATION
BY MR. LEWALLEHs
Q You are Mrs. Allen HeSwain who previously testified
here this morning?
A I am.
Q Mrs. Mo Swain, you are now living in the town inside
the corporate limits of the town of Clinton? Is that right?
A I didn’t catch you.
Q You are now living inside the corporate limits
of the town of Clintons is that correct?
A That’s correct.
Q You have lived there, I believe you said, for some
19 years. Prior to that time you lived outside the corpo
rate limits| is that correct?
A Ho. For l6 years I have lived in the city limits,
and then for about the average of I will say a year — no,
I will say more than that •=- about 17 years I have been in
the city limits, and about two years on the outside.
^ And I believe you testified you have 12 children?
Testimony of Mrs. Allen MeSwain 117
A I have 12
Testimony of Mrs* Allen MoSwain 118
Q, How many of those did you state were of high school
age?
A Pour.
(Q Pour of high school age. Is that inclusive of one
of your children who has graduated?
A There is three graduated„
Q Three have graduated and four now eligible?
A Ho, I have one that will be eligible» That will
be five, I will have five, I will have one next year*
Q You have four now?
A I have four that was eligible,
Q Then you have no children in high school nowj is
that correct?
A Ho, I don’t. That is correct,
Q Last year, the school year of 1950-1951, how many
of your children were of eligible age to attend high school?
A In 1950 I had two,
Q. What are their names, please?
A Robert MeSwain and Joheather MeSwain,
Q. Did either of those students, those children attend
high school the school year of 1950-1951, Mrs, McSwain?
A 550 and *51.
Q Both of them students?
A One,
$ Which one?
Testimony of Mrs, Allen HeSwain 119
A Robert graduated in 1950„
Q Robert graduated in the school year 1950?
A *50.
Q That is *i|.9-*50?
A Ye s„
Q Where did he attend school?
A Austin High Schools
Q, During the school year 1950~195l* where did Joheather,
your daughter, attend school?
A Austin High School,
Q Did she attend school for the entire year or entire
school year?
A Yes,
0. Beginning with registration day until the time she
graduated?
A Yes,
Q Prior to that time, during any of that school year
of f50” }5l, did she attend any other school other than
Austin High School?
A Ho, she didn’t,
Q Do you know what school in September of 1950 was
designated by the County School Board for students in
Joheather McSitain’s classification, that is, for her to
attend? Do you know what school the school board had
designated?
A LaFollette.
Q, LaFollette, Tennessee?
A Yes,
Q, What was the reason for her not attending LaPollette
high school, Mrs, 1cSwain?
A LaPollette was not an A grade school, and it only —
it didn't give the full courses that Austin afforded,
Q, Shat you are saying is that LaPollette school was
not as good a school as Austin?
A As Austin, that is correct,
Q That is what you mean to say. How do you know that,
Mrs, MeSwain?
A Well, there was several students that left Clin-
ton and went to Austin — 1 mean went to LaPollette, There
was two in person that I am speaking of. One went to Knox
ville College when she finished LaPollette.
Q You are referring to Knoxville College or Knoxville
high school?
A Knoxville College, She went to Knoxville College,
after she finished at LaPollette, and she didn't make the
grades so she had to stop. Another one went to the state
university at Nashville, A&I State, and she had to stop.
So that was one of the conditions. So I didn't intend
for mine to have to stop out,
^ Do you know of your own knowledge what caused these
Testimony of' Mrs, Allen Me Swain 120
Testimony of Mrs, Allen MeSwain 121
students that you are referring to there having to stop?
A Well, to my knowledge?
Q, I am asking do you know of your own knowledge, yes
or no?
A Their studies weren’t the same as they have in
Austin* They don’t afford them*
0, Do you know of your own knowledge, Mrs. MeSwain?
A I do*
Q. You know that?
A I do*
Q. You have visited LaPollette school where these
students have gone?
A Yes, I have visited*
Q> 1Eh.ile they were there?
A No, I didn’t*
S Then you don’t know of your own knowledge*
A I went at commencement* I went at commencement,
hut I do know that they don’t have the same things because
I inquired of their principal there what different courses
that they had, and he told me what they had*
^ I believe you testified, did you not, that pu got
hp around six o ’clock in the morning or 5sij-5 when your
daughter was going to Austin High School in Knoxville?
A
Q
5 s 30*
5 s30?
Testimony of Mrs, Allen MeSwain 122
A 500,
$ What time did you get up, say, this morning?
A This morning 1 was up at six o ’clock,
Q What time do you normally get up on all occasions?
A Well, all the way from S°30 to 6,
Q So the fact that your daughter or your son or none
of your children are now students in any high school is
not determinative of the time you get up?
A My daughter is still going to school, but she goes
to night school,
Q Goes to night school now. She is not in high school?
A She is not in high, school,
Q Let me rephrase my question. The fact that she
is not in high school or none of your children are in
high school is not determinative of the time you personally
get up, is it, Mrs, McSwaxn?
A No, but I have other children in grammar school
that I have to get up just the same,
® Have to get up at the same time?
A Yes, sir,
^ Those children that you have in the elementary
school, you say you get up at this same time for they are
in the elementary school at Clinton?
^ That’s right,
Q So the fact that you had a daughter going to Knoxville
to Austin High School then didn’t determine your way of
getting up or time of getting up?
A Welly in a way it didn’t and in another way it did,
because I had to get up at 5s30. Well, now, I really don’t
have to get up at 5 s 30 now, hut I do just the same. I
sometimes get up at 5°30 and sometimes I get up at 6. But
ordinarily before I would have had to get up at that time.
Q Did you during the school year of 1950 or at the
beginning of the school year 1950-1951, Mrs.McSwain,
consult with Mr, Irwin or any member of the school board
concerning the transportation to LaFollette?
A I did. Ho, Not LaFollette,
Q. Did you consult with them concerning transportation
cost to Austin High School at Knoxville?
A That’s right.
You were told, Mrs. McSwain, were you not, that the
school that had been designated by the county authorities,
the school board, for your daughter to attend — your
daughter and son I believe you stated — was LaFollette?
A LaFollette, that is correct,
^ And you were further told, I bel fere, that if the
student or your daughter or son chose to attend a different
school from that designated they would have to do it at
their partial expense; is that correct?
A That’s true.
Testimony of Mrs* Allen McSwain 123
ft Some time in 1950 did yon have further communication
with the school hoard of Anderson County or Mr, Irwin,
the superintendent?
A Yes, I did at different times,
ft At that time you were told, were you not, that in
November of 19.50 Austin High School had been designated
as the school for which your children could attend; is
that right?
A In 1950? We had got the word that they were to go
to school there. That they were putting on the school bus,
and that the children would be transferred to and from,
to Austin.
ft That was somewhere in November, 1950; is that correct?
A Yes,
ft It didn't alter the fact that, that directive from
the school board didn't alter the fact or any of the facts
that your daughter was already a student at Austin High
School in the city of Knoxville?
A No, sir, not at that time; no, sir,
ft Prior to that time In 1950 when your daughter -- I
take It it was only your daughter who was in school at
that time; Is that right?
A Yes, that Is correct,
ft Your son had graduated?
^ He had graduated.
Testimony of Mrs. Allen McSwain 12lj.
Q I believe he was in the service?
A Yes,
Q Prior to that time, Mrs, MeSwain, you had been told
by the authorities at the school office at Clinton, had
you not, that transportation and tuition would be provided
at the designated school in LaPollettej is that correct?
A Prior to that time?
Q, Yes,
A Yes, they did. They told me that if the children
would go there they would have all expenses paid,
Q That is the school which you were informed had been
designated as the school?
A As the school for them to go to,
Q After November or at which time you were informed
by the school board that transportation was provided to
Knox County and Austin High School, were you then out, you
or your family or your daughter out additional expenses
for transportation?
A I didn’t catch that statement,
Q Subsequent to the time that you were informed that
a directive had been issued by the school board designating
Austin High School of Knox County as the designated school
for which your daughter was eligible to attend, you were not
out any additional transportation expenses, were you?
A Yes, I was.
Testimony of Mrs, Allen MeSwain 125
Testimony of Mrs, Allen MeSwain
Ton were? What were those expenses?
126
ft
A For bus fare„
ft I am speaking of the time that a school bus was
established?
A I am telling you what I did. I paid mine right
straight on,
ft Did you ever make application to the superintendent
of schools?
A No, I didn't, '■
ft For bus tickets?
A No, I didn't.
ft You know, do you not, Mrs. MeSwain, that the school
was paying that to those people who did apply for it?
A I didn't know it personally but I heard about it,
ft When did you hear about it?
A I don't know. It might have been about — it might
have been in February, 1 believe it was, that I heard they
were paying the transportation,
ft Did you after learning that, Mrs. MoSwain, make
application?
A No, I didn't,,
ft To the superintendent?
A No, I didn't,
ft But you did hear it or knew of the fact that the
county was paying these transportation costs?
Testimony of Mrs,, Allen Me Swain 127
A I heard they were, but they didn’t tell me direct.
Q I believe you stated*, did you not, that had your
daughter been attending school in the town of Clinton,
Tennessee — your daughter is Joheatheri is that right?
A Johnather.
Q in the town of Clinton, Tennessee, she would
have gotten out of school or school would have been over
at 300?
A 300.
Q You are referring to the elementary school, aren’t
you?
A Ho, I am referring to the high school.
Q You don’t know that the high school has been releas-
ing the students from their daily activities at 3 ° 1+5 and
were last year-and were previously?
A Ho, I don’t know that.
$ In other words, you think it is 30(3?
A 300.
® You say that you had the additional expense of her
lunch at Knoxville, Austin High School?
A That’s right.
Q I believe you testified, did you not, that she could
come home had she been
A In Clinton.
^ — in Clinton? Well, you would have to have paid for
her lunch at home?
A Well, that, sure, I would have to pay for it,
whichever way it went, but it wouldn’t have been extra,
Q Wouldn’t have been extra then on top,
A That's right,
Q, What you are saying is it was a negligible amount
as to what you would have spent?
A Yes,
Q I believe you testified, did you not, that it neces
sitated additional clothes for your daughter?
A That's correct,
Q. What additional clothes were necessary, Mrs, MeSwain?
A Well, that included her skirts, her blouses, and
so forth,
Q I understand that, but what particular additional
clothes were necessary for her to attend school in Austin
High School at Knoxville?
A Well, now, I explained that, you see, by riding
on the® buses her clothes would get dirty. And if she
had been there in Clinton, it wouldn’t have been that way,
because she wouldn’t have been riding a bus to get mussed
Up before she got back home,
Q You know of your own knowledge, don’t you, Mrs,
MeSwain, that a majority of the school students who attend
at Clinton High School ride buses to school, don’t you?
Testimony of Mrs, Allen MeSwain 128
A Yes* sir.
Q An d that they are under the same difficulties that
your d a u g h t e r was insofar as riding a bus| is that right?
A I guess so,
Q That their clothes got dirty* too?
A I don't k n o w about that, I don't know h o w their
clothes were. I can o nly answer for mine.
Q, H o w yo u stated something a b o u t the after school
activities. What after school activities did your daughter
participate in at the school she a t tended?
A They gave plays* and different things like that,
ft Plays. Did she engage in a n y extra-curricular
activities as to athletics?
A No. She could have if it ha d b e e n that she eould
have got hom e at a reasonable time* but she c o u l d n ’t,
ft D i d she engage in these dramatic arts or plays as
you say?
A Sure,
ft Had she b e e n going to school at Clinton, in the
town of Clinton, Tennessee, a n d she lad engaged in these
dramatic arts and after school activities* she still would
have bee n gett i n g home later than normal if she d i d n ’t
engage in them?
A Yes, but wouldn't be as late as it was in Knoxville,
ft She would have gotten home later than the normal
Testimony of Mrs. Allen McSwain 129
Testimony of Mrs. Allen MeSwain 130
student ?
A Sure* she would have gotten home later.
® You say in September of 1950 somewhere around
registration day at Clinton High School you and a group
of others visited the principal's office, Mr. D. J. Brit
tain, at the Clinton High School?
A That’s correct.
Q, Who do you say acted as spokesman for the group?
A ly son.
Q, That is Roderick?
A Roderick.
Q He is just now I believe in service?
A That is right.
Q Who all was present with you as adults?
A Mrs. Mary Dickie and Reverend 0. W. Willis.
Q Reverend Willis and Mrs. Dickie and yourself were
the adults in the group?
A That's correct.
Q Did you and Reverend Willis and Mrs. Dickie, accom
panied by the children, all go into Principal Brittain’s
office?
A Mrs. Dickie and Reverend Willis and my son and I.
^ Went into the office where Mr. Brittain was? Were
there other parties or persons there?
A Yes, they were there but they were in the hall, just
Testimony of Mrs. Allen MeSwain 131
to the outside.
Q, Were there any other people other than your group
of people in Mr, Brittain5s office?
A Yes,
Q, At the time you talked to him?
A Yes, they were,
Q, Do you know who they were?
A No, I don’t.
ft Do you know how many there were?
A No, I don’t. There was some students, and I taken
it to be, an office girl,
Q You were present at all times and could hear all
the conversation?
A I did,
ft Between Roderick and Mr, Brittain?
A I did.
ft Then the other plaintiffs in this lawsuit, the
Dickie children, I believe, and Reverend Willis’ children
didn’t go into the office?
A No.
ft Where Principal Brittain was?
A No,
ft They didn’t talk with him?
A No,
ft They were out in the hall somewhere?
Testimony of Mrs„ Allen MeSwain 132
A That5 s correct.
Q How far is it from where you talked to Mr„ Brittain
out to where these other parties were out in the hall?
A It wasn't as far as that, Just to the outside
of the doors
Q, You don't know whether Mr» Brittain saw or talked
with them or not?
A ¥oP I couldn't say„
Q Then subsequent to that you say you went to Super
intendent Prank Irwin's office?
A That's correcto
Q That is in the town of Clinton?
A Yes.
Q, Bid this same group accompany you there?
A Ho, Reverend Willis and my son and myself,,
$ Where were the Dickie children and the Willis children
at that time?
A They had gone to Knoxville,,
Q Mrs, MeSwain, had you aver made application, or have
you ever accompanied any of your children or any other
children in Anderson County to the principal's office in
Clinton or any other high school in Anderson County, to
aPply for admission or application, to make application for
admission?
A Ebo But we had »■» there was a delegation, a committee
of ladies and myself went to Mr. Irwin’s office a good
little bit ago and aakedo
Q Hhat I am asking is did you ever or any of your
daughters or plaintiffs in this case ever apply directly
to any other superintendent or Mr. Brittain previous to
this time for admission
A Bo o
Q, =■= to the school? Did you hear your son Roderick
make the statement to Mr. Brittain that “Then you are say
ing that you are denying me the right to enter or enroll
here as a student”? Did you hear your son make that
statement to Mr. Brittain?
A He asked him, ”Do you mean to say that we can’t go
here to this school, that we can31 enroll in this school?”
And he said,, ,SHo, you can’t; if you will go to the county
superintendent,H said, ”he will enroll you there or LaPol-
lette or some place.,n
Q Who had instructed your son to ask Mr. Brittain,
the principal »=>
MR. LGOBTg Objected to.
Q (By Mr0 Lewallen) —» that specific question?
MR. LEWALLENg I thought we would get close to home.
MR. LOOBY? 1 object because there is no testimony
that anybody instructed.
^ (By Mr. Lewallen) Did anybody instruct your son
Testimonyof Mrs. Allen MeSwain 133
to ask that particular question, Mrs, MoSwain?
MR, LOOBY? I object to that, your Honor, I don’t
think it is material or relevant,
THE COURTS Overruled,
Q (By Mr, Lewallen) Will you answer the question,
please, Mrs, MeSwain?
A Am 1 to answer the question?
Q, His Honor overruled the objection,
THE COURTS If you can,
A Well, I couldn’t tell you that.
Q (By Mr, Lewallen) You don’t know who instructed
your son, is that what you are .saying?
A Yes, sir,
MR, WILLIAMS? I object to the phrasing of that
question,
THE COURT? She says she does not know.
Q, (By Mr* Lewallen) Do you know if he had been instruc
ted to ask that specific question?
A Well, I feel that’s personal,
MR, LEWALLEH? I would like the record to show, your
Honor, she refused to answer the question,
Q (By Mr, Lewallen) This final question, Mrs, MeSwains
Prior to the time that you and Mrs, Dickie and these other
parties which you have enumerated made this visit on
registration day or along about registration day to Clinton
Testimony of Mrs, Allen Me Swain I3I4.
Testimony of Mrs. Allen MeSwain 135
High School* had yon had previous consultation with your
attorneys concerning this matter?
MR. LOOBYs Just a moments if your Honor please.
That is objected to. That is immaterial* irrelevant
and certainly incompetent. She has a right to have con
sultation at any time with any attorney she pleases* and
certainly that has no place here.
MR. LEWALLENs We will withdraw the question* your
Honor. I believe that's all* your Honor.
(Witness excused)
RODERICK MC SWAIN
called as a witness by and on behalf of the Plaintiffs* being
first duly sworn* was examined and testified as follows;
DIRECT EXAMINATION
BY MR. WILLIAMS;
Q. Your name Is Roderick McSwain?
A Yes* sir.
’Q Mr. McSwain* will you please speak up so that the
Court can hear and all counsel can hear you.
A Yes* sir.
a You are the son of Mrs. Allen McSwain?
A Yes* sir.
Q You live in Anderson County* Tennessee?
A That's right.
Q Is that correct?
Testimony of Roderick MeSwain 136
A Yes, sir*
Q, You are now in the armed services?
A Yes, sir, I am„
Q, You are a graduate of Austin High School?
A Yes, sir*
Q Knox County, Tennessee? is that correct?
A Yes, sir*
Q Hhat year?
A I graduated in, let’s see, it was ’50 — ’Ij.9 or *50.
It was the term of ’lj.9°
Q The year ’l}.9~J50f is that correct?
A Yes„
Q, You matriculated at Austin High School during the
entire course of your high school career?
A That’s right? I did*
Q. Did you at any time during the year 1950 have an
occasion to visit the office of the principal of Clinton
High School?
A Yes, I dido
Q At what time did you make that visit?
A If was in the morning before noon on — let’s see,
the date I can’t --
Q You don’t have to have any specific date if you
don’t remember it„ If you could tell us what time it was,
if you can identify it by being associated with anything else.
Testimony of Roderick MeSwain 137
A I will tell yo u it was during an enrollment period
for the pupils, and the reason I say it was during e n r o l l
ment p e r i o d is because I noticed a w r i t e - u p in the paper,
and I d o n ’t remember.
Q Wha t part of the year? What season of the year?
A It was in the fall.
Q, Sha t is the p r i n c i p a l ’s name, the principal of Clin
ton Hig h School?
A Mr. Brittain.
Q Mr. what?
A Brittain.
Q. Who a ccompanied you on that visit, Mr. MeSwain?
A My mother, Mrs. MeSwain.
Q Is that Mrs. A l l e n MeSwain?
A Mrs. Allen MeSwain, Rever e n d 0. W. Willis, and his
daughter.
Q. Who is his daughter?
A L i l l i a n is he r name. Mrs. Dickie and he r two sons,
and I d o n ’t know their names. I m e a n I d o n ’t remember them
right off. And m y sister Joheather and myself. Was five.
Q Those persons accompanied you?
A Yes, they did.
Q To the office of Mr. Brittain?
A Yes, they did.
T H E COURT; Do the defendants den y that these people-
Testimony of Roderick McSwain 138
MR, LEWALLEN; No* your Honor. We will stipulate
then for the purpose of expediting the m a t t e r , they were
there a n d all of the m there talking to the Principal
Brittain,
THE COURTS The Principal Brittain wouldn't permit
them to enter the school! is that the idea?
MR. L E W A H jE U s That's right,
MR, WILLIAMS; May it please you r Honor, we want
to be a bsolutely clear on that, because we tried to reach
some agr e e m e n t w i t h them du r i n g a recess.
MR, LEWALLEN; Y o u r Honor, I believe we have
stipulated there, I put it in the stipulation they were
there, somebody made a p p l i c a t i o n and he just didn't know
who it was.
THE COURTS You state the p r o p o s i t i o n and see if
Ir. Williams will agree.
MR, HEWALLENs Our stipulation is stipulation Ho, 7
on page 2 of the stipulations, y o u r Honor, w ith the e x c e p
tion we w ill stipulate at this time, if they would like
to, that certain parties did come there but Principal
B r i t t a i n .does not now identify them.
MR. WILLIAMS; May It please your Honor, we want
to establish d e finitely who came there and who said what
and who said who. In their stipulation they state that
one child came there. He was unknown. The parties, if he
Testimony of Roderick McSwain 139
represented a n y p a r t i e s , they wer e unkn o w n and went away
and was n e v e r h eard of.
TH E COURT § If yo u d o n ’t want to stipulate on that,
I will let h i m show it, I cannot conceive if these people
were there and approached the principal of the h i g h school
why you g e ntlemen cannot agree they were t h e r e 0
MR, LEWALLENs You r Honor, I d o n ’t want to be
facetious w i t h the Gourt. We want to stipulate w i t h them
again In this manner, that a certain party did come there,
and I will ask Mr, B r i t t a i n If this witness was one of them.
T H E COURTS Mr. Brittain, was this witness one of
them?
MR. BRITTAIUs To the best of m y knowledge, he w a s;
yes, sir.
MR. LEWALLEN; We will stipulate he was there, In
the company of other parties.
THE COURT? What do yo u w a n t to show by this witness?
MR. WILLIAMS? We want to show by this witness that
he told Mr. Brittain that he had some students, five stu
dents, that he wa n t e d to enroll and that ~
MR. LEWALLENs We c a n ’t stipulate to that, your
Honor.
THE COURT; Go ahead..
Q (By Mr. Williams) Mr. McSwain, will you tell what
transpired at that m e e t i n g as brie f l y and concisely as
Testimony of Roderick MeSwain
possible, please?
A When I walked in the room, I told Mr, Brittain that
1 had some students that would like to enroll in school,
and he looked at me very surprised, and said, ”No,” says,
”You will have to go down to the superintendents office.”
And after telling him two or three times that we
were wanting to enroll there and not somewhere else, he
says, ”You can’t enroll there,” He says, ”Go down to the
superintendent’s office and he can enroll you somewhere,
probably LaPollette or something like that,”
ft Did Mr, Brittain say anything about why they couldn’t
enroll?
A Ho, he did not. He said the superintendent enrolled
the colored students. He said that. And said that we
would have to go down to the superintendent’s office to
enroll the students.
ft Do I understand you to say ~ did he say that they
definitely couldn’t enroll there?
A That’s right,
ft In Clinton High School?
A He definitely said that, yes,
ft Hothing further of any importance transpired there?
& Ho, there wasn’t.
ft 'Where did you go or did you go any place from there?
A Yes, we left there and we went to the superintendent’s
llj.0
Testimony of Roderick McSwain
office, and there we talked with the superintendent.
I k l
<J Iho are ttweH? Who went to the superintendent's
office?
A It was my mother, Reverend Willis and myself. There
was three of us that went to the superintendent's office,
Q What happened at the superintendent's office,
briefly?
A Well, I went -- I mean we went in, rather, and I
told him what had taken place at the high school, and he
says, ”Well, you know better than that.”
He went and got the Constitution or a book it was.
It was a Constitution, I imagine, because he showed me
on the back of it. And he read some article of the Con
stitution that stated that white and colored couldn't go
to the same school. And he went on, after he got through,
told about how well the county was treating the students,
and that sort of thing, they were doing the best that
they could, and also he tried to show us where that we
were getting more money and better treatment than the
white people were and that sort of thing. And in turn he
also said something about — let's see. It was about the
tuition. He said that he was not guaranteeing that in
another year, but they were working on it. It was some
thing about a bond coming up or something of that sort,
Q What tuition do you have reference to there?
A It was the '§190 per year tuition hike. Just had
been raised the year before*,
Q, Tuition for what?
A For Austin., attendance at Austin.
Q For Negro students to attend Austin High School?
A For Austin High School.
Q He told you they weren’t sure about getting that?
A No, he wasn’t sure. That’s what he said.
Q What further was there? Was there something that
happened there?
A Yes, he was telling them about — I don’t remember
his correct words, what he said, but the nature of the
conversation was this they were going to try to work
some way of getting a bus or something of that sort to
carry the students back and forwards to Austin.
Q We have been talking about the superintendent,
Ro you know the superintendent’s name? The man you talked
to at that time?
A Mr, Irwin, yes,
Q When you went there, both to the principal’s office
and to the superintendent’s office, what did you go as?
What was your function?
Well, in fact I was — it was more than just ■=«* you
see, I wasn’t a student any more, I had finished the year
before, but I was merely spokesman for the group.
Testimony of Roderick MeSwain lij.2
Q What group were you being spokesman for?
A My mother and my sister,.
Q Your sister Joheather?
A That’s right„ And Reverend Willis and his daughter
and Mrs0 Dickie and her sons*
Q, Which daughter of Reverend Willis?
A Lillian,, -Lillian Willis.
Q And the Dickies —» you say you were being spokesman
for the Dickies?
A That’s right? yes, sir.
Q, Did you see Mrs. Dickie?
A I dido
Q, And were her daughter and her sons?
A Two sons, that’s right„
Q You were inquiring, you were asking the principal
and the superintendent to enroll these —
A High school pupils, that’s righto
Q -*»■ high school pupils.
Did you make any specific request? I believe you
testified that you made a specific statement to the princi
pal.. Did you make a specific statement or request to the
superintendent, Mr0 Irwin, in regard to enrollment? Did
you say anything in regard to your purpose there?
A Well, I told him what went on at the school.
Q At the principal’s office?
Testimony of Roderick MeSwain ll|3
Testimony of Roderick MeSwain Ikk
A Yes, And he told me that I knew better, I mean
colored people enrolling in a white school. And it was
then that he got out the Constitution and read this article;
I don't know, I don't remember the number of it,
Q Did you tell the superintendent, Mr. Irwin, who
you were there on behalf of?
A Yes, I did, and while I was there, at least he did
understand that I wasn't a student because I made that very
clear,
Q You made him understand specifically that you were
there?
A That's right,
Q To try to enroll —
A That's right,
MR, LEWALLEN? I don't want to keep interjecting
objections, but at this time ~-
MR„ WILLIAMS? Perhaps that is objectionable. I
think I have belabored the point. It is, I think, fully
established.
Your witness,
CROSS EXAMINATION
BY MR, LEWALEEU?
Q You say you are in service now?
A Yes, I am.
Q Where are you stationed?
Testimony of Roderick MeSwain Iks
A Port Monmouth,, New Jersey.
Q, You are here on special leave?
A Y©Sp special leave*
Q, To attend this litigation?
A That’s right*
Q How long have you been in service?
A I have been in service now nine months.
Q You say that some time in 1951 you in the company
of these other persons went to Principal Brit tain5s office?
A Yes*
MR* WILLIAMS? 1950.
MR* LEWALLENs 1950. I am sorry* 1950.
Q, (By Mr. Lewallen) And you were acting as spokesman
for them?
A les, I was.
Q, You were at that time a graduate of Austin High
School of Knox Countys weren’t you?
A That’s right, I was.
Q Were you making any application to enter Clinton
High School yourself?
A Nop I was not.
Q Did you tell Mr. Brittain that you were making appli
cation to enter yourself?
A Mr. Brittain didn’t ask anything about who was enter
ing
a
Testimony of Roderick IcSwain
I am asking you if you told him?
1 I4.6
A 1 didn't have any reason to tell Mr. Brittain.
Q You didn't tell him that?
A Ho, I didn't»
Q You say you told him that ”1 have some students
here that I wish to enroll”?
A So,
Q, that did you say* Rodericks as to that?
A 1 told him that there was some students here that
would like to enroll in Clinton High School,
Q, Bid you also — I believe you testified that you
told him you were their spokesman?
A lo, I didn't. I didn't tell him anything about
spokesman,
Q Did you tell M m their names?
A lo, he didn't ask the names* didn't request any
name s„
Q, Did you tell him the names yourself?
A You said did I tell?
Q>' The students you were acting as spokesman for?
A No* he didn't ask to see the pupils. He wasn't
concerned that far.
$ How did you happen to go down as a spokesman for this
group* Roderick?
Well* I will tell you. I was very sympathetic due
to the fact that I cam© up under worse circumstances than
the present pupils are,
Q Are you finished?
A G-o ahead,
Q, On this particular occasion how did you happen to
go there as spokesman for this group that you say you
represented whose names you didn?t give to Principal Brit
tain?
A How did I happen to go?
Q, Yes, What prompted you to go there?
A Saw writing in the newspaper, said students enroll,
Didn5t say white, black, yellow, green, blue or white,
and due to the fact that I — my father rather is a tax
payer in Clinton, a student should be, any student should
be able to go to school or at least be given equal school
privileges,
Q Who had you consulted with when you went down there
as spokesman for the group?
MR, LOOBYs I am objecting to that. He has a right
to consult anybody. It is immaterial as to who or with
whom he consulted,
THE COHRTg What is the relevancy, as you contend,
to the question?
MR, LEWALLENs I think this Court is entitled to
Testimony of Roderick Me Swain lij-7
know, and I donst believe that counsel for the plaintiffs
or counsel for the defense or any other member of the bar
would say this Court isn’t entitled to know what prompted
this litigation,, what stirred it up, It is relevant and
material here| it is a material element in this lawsuit.
Tour Honor is entitled to know if there has been
some act of stirring up litigation. Tour Honor is entitled
to know that, I am not saying "there is, I am just trying
to find out what prompted this litigation. If he wants
to answer it, I think that is all right,
MR, LOOBTg This isn’t the time for a fishing
expedition. If they wanted any investigation, they can
make it.
The only question involved here is are these plain
tiffs being denied a constitutional right. That is the
only thing that your Honor is interested in, regardless
of who may have informed them of the constitutional right.
It is absolutely irrelevant to the matters before this
Court„
MR, LEMLLEHs May it please the Court, we are not
denying that Roderick or any of these other people, or
anybody within hearing of my voice or anybody else, are
denied or should be denied the right to counsel. We are
not arriving at that, not attempting to arrive at that,
Just trying to find out what prompted this particular
group to go to Principal D„ J„ Brittain’s office and ask
Testimony of Roderick Me Swain llj.8
Testimony of Roderick MeSwain
these particular questions. And I think your Honor is
lif9
entitled to know that,
THE WITNESS% Sure,
MR, LOOBYs Just a minute,. You keep quiet until
the Court rules.
The thing that prompted them is the denial of the
constitutional rights. That is what prompted them.
If your Honor please, as to whether anybody talked
to them or talked to anybody,, that is absolutely irrele
vant o
Your Honor isn't here as an investigating committee.
Your Honor is here simply to determine whether or not
eonsitutional rights have been infringed. That's all
that matters.
Now as to who has prompted them or whether somebody
prompted them or whether some group advised^ that has
absolutely nothing to do with the proposition. It is
unimportant,
MRLEWALLENs I have never asked him who advised
him, I am asking him what prompted him and this group
to go on this particular occasion and ask these particular
questions. We are entitled to show it and let the Court
know what is behind this litigation.
Apparently we are treading on someone's toes. And
if we ares we don't intend to* but we think your Honor Is
Testimony of Roderick MeSwain 1^0
entitled to know it,
THE COURT! You want to answer the question?
THE WITNESS $ No, I do not,
THE COURT? All righto Unless you can show me,,
Mp„ Lewallan, why I should know that, unless you can tell
me more than you have told me so far, I will not require
him to answer,,
MR, LEWALLENs All right, your Honor. Let me go
on to something else.
THE COURTS All right,
Q, (By Mr, Hawaiian) Next, Roderick, I believe you
testified on direct examination, didn*t you, that you had
come up under certain conditions and had received your
education under certain specific conditions^ is that right?
A Please repeat your statement,
Q I believe you testified on direct examination that
you had received your education under certain conditions!
is that correct?
A That is correct,
Q Among those conditions you enumerated was attending
Austin High School?
A Yes,
Q Roderick, do you know of your own knowledge what
the conditions are today in relation to Austin High School
where you attended school as to whether it is a grade A school
Testimony of Roderick MeSwain 151
or not, an A~1 school?
A It is impossible for me to say about what has happened
in this section, I have been away nine months.
MR0 LOOBYs If your Honor please, I don't think
that is a proper matter for cross examination,, And it is
irrelevant as to what grade of school it is. That is not
the question at all. The question is, if your Honor please,
as to whether these complainants, these minor complainants,
are denied an opportunity for high school education in
Anderson County,
THE COURT? Do you object to the question?
MR, LOOBY? Yes, sir,
THE COURTS Overruled,
MR, LOOBY? Very well,
& (By Mr, Lewallen) Do you know of your own knowledge
what the classification, that is, as to school grading
purposes, Austin High School is today?
A Of my knowledge, no, I do not.
Q Do you know at what time or what was it at the time
you graduated there in 195>0 I believe you testified?
A Well, I don't have any actual proof, knowledge,
Q You were a student there, weren't you?
A Yes, I was a student, but as far as knowing the
ratings of it, I didn't.
Q You didn’t know whether it was a grade A high sdaool?
Testimony of Roderick MeSwain 1 5 2
A That's righto
Q, Or A“If
A That's righto
Q Do yon know of your ot o knowledge whether Austin
High School is a member of the Southern Association of
Secondary Schools and Colleges?
A That I couldn't answer either.
Q Do you know of your own knowledge what the curricula
there is at Austin High School now?
A Course of studies they offer?
Q Yes.
A Yes. Ho, I can't say now. Ho, I can't say now.
Q. Do you know at the time you graduated what they
were?
A YeSj, 1 did know.
Q ’What were they?
A For instance, you mean what students, following
*
science curricula or what? Business or what? What do you
mean by that?
Q. Did they have four years of English and math? And
all of the basic literary subjects?
A Yes, they did.
MR. WILLIAMSs May it please your Honor, I want to
take a slight liberty here and confess an ignorance. The
law of Tennessee, the evidence under the law of Tennessee
Testimony <£ Roderick MeSwain 153
'has confused me somewhat. I understand that in a number
of Jurisdictions that cross examination is not permitted
as to matters which were not opened on direct examination.
The law of Tennessee I find to the contrary. I am not
quite sure as to Federal jurisdiction. I want to make
sure. I want to object to these questions on the ground
that line of questioning wasn’t opened on direct.
THE COURT? The rule in Federal Court is that
where counsel examines him on subjects other than that
covered by direct examination, he ordinarily makes him
his own witness.
MR. WILLIAMS? Thank you, sir.
MR. LEWALLENs You still make your objection?
MR. WILLIAMS? I withdraw the objection.
Q (ByMr. LewaXXen) Roderick, at the time you attended
Austin High School in Knoxville in 1950, when you graduated,
they had courses in commercial cooking, typing classes,
commercial classes and that type of thing?
A Yes, sir.
Q, Did Austin High School have a cafeteria?
A Yes, it does have.
Q, Did it have a cafeteria at the time you attended?
A Yes, it did.
Q Did it have any specialized vocational courses?
A Yes, they had cabinet making, woodworking.
Testimony of Roderick McSwain
a Did they have shop?
A Yes, a mechanics —
Q Auto mechanics?
A That”3 right*
a Have a glee club?
A YeSp they did have*
Q Have a football team?
A Yesp they did have*
a Basketball?
A Yes*
ci All athletic activities?
A Well, they had quite a few*
ft Did they have dramatic arts, such as engaging in
the production of plays and that sort of thing ?
A Yes* It is not necessary curricula, I don5t think
but they did have a little*
ft Did have that?
A Yes, sir*
MR* WILLIAMSg lay it please yeur Honor, we object
to the introduction of t M s testimony based on the reasons
propounded by your Honor in reference to the testimony that
we were trying to introduce through Mrs* McSwain* This
witness is not presently at Austin High School* It is
indeed questionable whether he could remember what courses
the school had* in detail, what courses the school had when
he was there and certainly not there now,
THE COURTS I think your objection would be good
had you not gone into that* I would have sustained it
if you had not gone into it, but since I allowed you to
go into it, I think —-
MR, WILLIAMSs Lid we go into it, if your Honor
please?
THE COURTS Not that, but you went into the history
about a year ago, and 1 am letting him go into kindred
history a year ago.
Gentlemen, I repeat we want to show things that
exist now,
MR* LEWALLENt Yes, your Honor, I will try to get
to that*
MR* LOOBYl I want to raise this objection, that
there is no issue under the pleadings as to Austin High
School in comparison with any other school.
Now the proof must conform to the issues made by
the pleadings, Austin in the evidence has nothing in the
pleadings to justify its introduction, and I therefore
move it all be stricken.
THE COURTi 1 overrule that motion* It may become
relevant*
MR. LOOBY§ We respectfully except, if your Honor
please.
Testimony of Roderick McSwain 155
Testimony of Roderick MeSwain 156
Q (By Mr, Lewallen) Rodericks after/you acted as
spokesman for this group there on that occasion when you
visited Principal Brittain and Superintendent Irwin's
office, what further steps did you take?
A ffhat further steps did I take?
Q Yes,
A I called Mr. Looby,
Q You called Mr, Looby?
A That's righto
Q That is the gentleman here on my right?
A That's righto
Q, Where was he at the time you called him?
A In Nashville.
THE COURTS I change my ruling on fee objection
there, I let the testimony go into the record subject to
your object!oiio
MR, LOOBYs Yes, sir,
THE COURT; And if the testimony becomes material
and if necessary to a decision, I will pass on it when I
pass on the merits of the lawsuit,
MR, LQOBYs Very well, sir.
Q (By Mr, Lewallen) You say you were acting as spokes
man for the Dickie children?
A Yes, that's right,
Q And for the Willis children and your sister Joheather?
A That’s righto
Q Where was Johna then on that occasion?
A Joheathar was with us,
Q She was with you?
A That’s righto
Q, She was down at the high school with you?
A That’s righto
Q At Principal Br-11tain: s office?
A That’s righto
Q Were you a .self-appointed spokesman or had these
parties requested you to be their spokesman?
A Well, I tell youj it was just like this. If one
of them had went inP you could have very easily said it
was group force^ but I was on crutches0 It was impossible
for me to walk without crutchesf let alone walk in and
try to force something in on9 so I asked myself to be
spokesman*
Q You asked to be spokesman for the group?
A Yess that’s right*
Q, You were self-appointed spokesman?
A Self -appointed* you m y put it that way,
Q, I believe you were suffering from the results of an
automobile accident at that time?
A Ye a*
^ I believe you consulted with me about that automobile
Testimony of Roderick MeSwain 1$1
Testimony of Roderick MeSwain 158
accident, didn’t you?
A Yes, 1 did,
Q. When you called Mr, Looby, did Mr, Looby come to
Clinton and you talk with him?
MR, LOQBY? Just a minute. This is going too far,
if your Honor please,
THE COURTS Do you object?
MR* LOOBYi Yes, sir, object strenuously.
THE COURTS I sustain the objection,
MR, LEWALLEHs I believe that’s all, your Honor,
REDIRECT EXAMINATION
BY MR, WILLIAMSg
Q Was it agreeable with the other members of the party
who accompanied you to the principal, to Mr, Brittain’s
office and to Mr, Irwin’s office for you to be the spokes
man?
A Yes, it was,
MR, WILLIAMS? Come down,
(Witness excused,}
MR, LOOBY? If your Honor please, Mr, Brittain would
like to attend a conference in Cincinnati, and we are going
to call him now and excuse M m so that he may attend,
THE COURT? All right,
D* J, BRITTAIN
a witness called by and on bdialf of the Plaintiffs, being
Testimony of D„ J* Brittain 159
first duly sworn* was examined and testified as followss
DIRECT EXAMINATION
BY MR. LOOBYs
d Will yon please state your name* sir?
A Da Jo Brittain* Jr*
Q Mra Brittain* what is your business or profession?
A Principal of Clinton High School, Clinton, Tennessee,
Q, I believe that is the county seat of Anderson County?
A That is correct,
Q How long have you been in the field of education,
Mr* Brittain?
A Since 193?.
Q Ihat is your training? What degrees have you?
A I have a B,A, Degree from Maryville College, Master
of Science Degree in Education from the University of
Tennessee,
0. You have been principal of Clinton High School how
long?
A This is the eighth year,
Q, Mr, Brittain* do you remember an occasion early in
September, 1950* when a group of colored citizens, resi
dents of Anderson County* came to your office with respect
to application for enrollment of some colored students?
A I do, I believe it was the last week in August,
Q It was the last week In August?
Testimony of D„ J„ Brittain
A Yes„
q, Was enrollment being made in the high school at
that time?
A That is correcto
Q So they came in at a time ordinarily set aside for
enrollment?
A Ye s0
Q You as one of the defendants were in the court room
and heard the last witness, Roderick McSwain?
A Ye s „
Q Was he the spokesman for the group?
A To the best of my knowledge, he was,
Q, Did you accept those students for enrollment or
did you refuse them enrollment?
A May 1 qualify and make a statement there?
.Q. Yes, sir„
A Well, the spokesman Roderick came in, and I want to
make this point clear — it was my understanding, and I may
be mistaken about it, your Honor, but it was my under**
standing that he was trying to enroll because he came
into my office, and there were two or three adult people
with him.
Now there were other people out in the hall as I
could see. Now I am not saying that he did not state that
he wanted to enroll for these other people. But it was my
l6o
understanding that he was the person that wanted to enroll„
And he told me that he or they —- I will not say which —
it was one or the other — desired to enroll in Clinton
High Schoolo And I told him that it was my understanding
that a school had been provided at LaFollette, and he
said that he or they did not desire to attend LaPollette
high school and I asked him why. And he said and this
is the reason why I was directly under the impression he
was the one applying;, and he was on crutches at the time,
and he gave me two reasons why he did not want to attend.
One was that he was not well, and second, that he did not
desire to make that long trip on the bus.
I then informed him that I did not have authority
to enroll him at Clinton High School, and that he would
have to go down and talk to Mr. Irwin in r elation to the
matter.
Q, Well, now, when you say did not have authority to
enroll him, what do you mean by that?
A I meant just this; In the first place, I knew that
the state constitution of Tennessee stated that the white
and Negro children should not go to school together.
In the second place, I was confronted with a situ
ation that somewhat surprised me, to be perfectly frank
about it, and I did not want to make a rash decision on
the spur of the moment.
Testimony of D. J. Brittain
Testimony of D. J» Brittain 162
q Do you remember his asking you very definitely
nDo you mean to say that you are not going to let them
enroll”?
A He said, he asked me specifically, ”Mp„ Brittain*
are you refusing to enroll me in Clinton High School?”
And I told him* nI am not stating that I am absolutely
refusing to enroll you* but I would refer you to the
superintendent of the school0” And I would like to
qualify that from this point of view. I was in effect
refusing to enroll him at that given moment, but if
authority came to me from the superintendent5s office to
enroll him, I would enroll him.
Q, You say ”him0 ” You mean him or them?
A Yes. He or they* whichever the conversation was
regardingo
Q, In other words* if I understand you correctly*
you were not denying the applicants enrollment but you
would not enroll them now because of the race and color,
nevertheless if the superintendent had authorized you to
enroll them* you would have enrolled them?
A Well* I am hired by the Anderson County Board of
Education. I am an agent of that organization. And of
course* there is a problem there, too. That is my opinion,
I stated that I would have enrolled them, Judge. I under
stand although they might specify that I should enroll them,
Testimony of D, J, Brittain 163
I might still be contrary to the law of Tennessee, So I
would not say definite no on that either way, 1 don’t
know, I would have to meet that situation when it arose,
Q, But the applicant or applicants were not enrolled
then because they were Negroes?
MR, LEWALLEN§ Tour Honor, if you will excuse me
just a moment on this point.
As I understand it, Mr, Looby has called Mr, Brit”
tain as his witness, and he is now attempting to cross
examine him. If he has called him under some specific
rule which he hasn’t stated or if necessary to state to
the Court, we still want to object to cross examination
of his own witness,
THE COURTS I will let Mr, Brittain answer.
A I will be happy to answer that particular question.
As I say, this thing hit me just suddenly right
in the face, I didn’t expect it. I had no forewarning.
In all my years of teaching experience, I had never
had a Negro apply for application, for enrollment in a
school that I was in. And quite frankly, when this dele-
gation walked in, I was not ready to face all of the
issues involved, I was not ready to make snap judgments.
I did know that it was against the law of the State
of Tennessee, and I did want further advice before I
definitely made a decision either way. And I felt that
I was within ay rights in referring to the superintendent
of schools who was my immediate superior,,
Q, (By Mr, Looby) 1 am not questioning your wisdom
nor your act, 1 am just trying to get the facts„
Had the applicant or applicants been white» you
wouldnH hare hesitated to enroll them* would you?
A That is correct„
0, So your hesitancy or your failure to enroll them
was because they were colored?
A That is correct,,
Q, Mr* Brittainj where is LaPollette located?
A LaPollette is located in Campbell County„
Q, That is about 25 miles from Clinton?
A 1 imagine that is approximately correct,
Q, Mr, Brittain* did you receive any communication
from our office?
A Mhat do you mean from your office?
Q Prom me, I, Z, Alexander Looby?
A Yes* 1 have received communication from you,
Q And that was with respect to the admission of these
students?
A Yesj, sir, that is correct,
Q. Has any action been taken on that communication?
A As far as Clinton High School is concerned* no. As
far as the rest of the county is concerned, I think I can
Testimony of D, J, Brittain
Testimony of D„ J« Brittain 165
well, I ean't answer for that,
Q, Clinton High, School is the only high school in
Clinton, isn’t it?
A It is,,
Q, How long hare you been connected with the field of
education in Anderson County?
A Since 1937=.
Q, Has there been.or is there any high school to which
Negroes are admitted in Anderson County during the time?
A There is one in Oak Ridge.
Q The county school?
A Oak Ridge is in Anderson County,
Q I did not ask you that, Mr, Brittain, Is there a
county high school for Negroes in Oak Ridge?
A Well, now, there is a high school in Anderson County,
I understood that to be your question. There is not a
high school that I know of in Anderson County that is
operated by the Anderson County Board of Education, Is
that what you want to know?
Q. That is what. I want.
Tell us something about this school in Oak Ridge,
MR, LEW&LLENs Ask him first if he knows,
Q (By Mr, Looby) It was suggested that maybe you
don’t know much about this school in Oak Ridge, Do you?
A I don’t know very much about it, I know that it is
Testimony of D. J. Brittain 166
there.
Q, Iho owns it?
A That I could not say.
Q But you do know that it is not a county school?
A To the best of my knowledge it is not a county
school. That!s a rather complicated proposition.
Q, Is it a public or private school?
A If is a public school to the best of my knowledge.
Q, Operated by whom?
A 'Well, Superintendent Irwin can give you the answer
to that better than I. I know this -- all salaries of
all teachers are paid through the Anderson County Board
of Education. As I say, this is a very complicated thing
when you get into the relationship between Anderson County
and Oak Ridge.
Q But it is not very complicated when it gets between
Anderson County School Board and Clinton High School, is
it?
A Ho, sir.
Q At what time does the Clinton High School begin
classes?
A 8§30.
Q At what time should the student be in the class room
ready for work?
Testimony of D. J. Brittain 1&7
Q At what time does class end at the Clinton High
School?
A In the afternoon at 3°k-5°
Q You mean your classes go up to 3»̂ 4-5 on school lets
out at 3sl|5?
A Classes go up until 3 ‘°h$° There is a I4.5 minute
lunch period from 12 to 12si|.5>, and all the rest of the time
the students are in session in classes,,
Q Mr. Brittain, you are a defendant in this case?
A Yes.
MR. LEWALLEUs Your Honor, did I understand that
counsel for the plaintiffs in the matter had called Mr.
Brittain under I4.3B?
THE COURTS They have called him.
MR, LEWALLENs We will proceed with cross examination.
CROSS EZAMIMTION
BY MR, LEWALLEN;
Q, Mr, Brittain, you have been associated with the
schools of Anderson County since 1937*
A Yes, sir.
Q, I believe you testified that you have been principal
of the Clinton High School now how many years?
A I believe this is the eighth year.
Q, As principal of the Clinton High School, have you
during any time of that eight years of your own knowledge
wilfully violated the laws of the State of Tennessee as
to the operation of the school system?
A Wilfully and as of my knowledge, no, sir.
Q, Were you aware on this occasion when application
was made to you by these students as to what the law is
relative to schools for the different races?
A Yes, sir, I was.
Q Had you admitted or enrolled the students making
application, do you know whether or not you would have
been liable for some penal or criminal action personally
from the action you had taken from enrolling the students?
A I would be of the opinion that I would since the
school system is operated under the State of Tennessee
which is under- the state constitution. I would be subject
to dismissal from my position for violation of any of the
laws in relation to the State of Tennessee.
Q, Mr. Brittain, you say that you were under the impres
sion at the time that Roderick McSwain came to your office
that he personally wanted or wished to enroll?
A Yes, sir. I want to qualify that.
Q Prom what did you get that impression?
A I want to qualify and say I could have been mistaken
about it.
THE COURTS You qualified it in the first instance.
Testimony of Do J. Brittain
THE WITNESS: Yes, sir.
Testimony of D, J. Brittain 169
Q (By Mr, Lewallen) Mr, Brittain, at present what
is the curricula of Clinton Hlgfc School?
MR, LEWALLENs Your Honor, I take it under your
Honor's previous ruling I am making him my witness under
such examination,
Q (By Mr, Lewallen) What is the present curricula
of Clinton High School, Mr, Brittain?
A We have a general academic curricula for college
preparatory. We offer vocational training in the fields
in the commercial field, home economies field, and
agricultural field,
Q, You have a commercial course that includes such
things as typing and shorthand?
A That is correct.
3, How explain this vocational field you are talking
about. What is that?
A Home economics is for girls only, of course, and
it is mainly cooking aid sewing. And agriculture is for
boys, and it is farming, altogether, and related activities.
Q Do you have in your high school there at Clinton a
cafeteria, Mr, Brittain?
A We do not,
Q. Is your school a member of the Southern Association
of Secondary Schools and Colleges?
A It is not.
Testimony of D. J. Brittain 170
Q, You say class begins at 8 s 35s and the students are
released from class at 3°^5?
A That is correct.
Q Mr. Brittain, how many students do you have in
Clinton High School?
A We have enrolled 5990
Q, Do you know how many ride a bus to get to*school?
A Approximately 325.
Q Three hundred and what?
Y
A Approximately 325.
Q Do you know what section of the county these students
come from, Mr. Brittain, generally?
A Yes, sir, they come from within I would say two
hundred yards of the Knox County line. They come from
within two miles of the Roane County line.
Q Roane County line?
A Roane Gounty line at Oliver Springs, They come
from within two miles of Lake City, That is a broad cover
age,
Q How far, Mr. Brittain, if you know, do these students
ride that you have from these dfe tances there or these
localities you have previously stated? Do you know of
your own knowledge?
A Ho, sir, I could not give you that exactly,
Q Can you give an approximation of it?
A I would not want to do that,
Q Mr, Brittain, do you know? Do you have any students
that walk to school there?
A Ye s,
Q, Many or few?
A Well<, any student that lives as much as anything
under one mile and a half from the school walks to school,
Q You have students who are put to that inconvenience
of walking a mile and a half to school?
A Yes, that’s correct,
Q, You w ere present on a previous occasion where Mr,
Davis and I were present where students discussed that?
A That is correct,
gt
Q, You have heard your students discuss that matter?
A Yes,
Q, Of walking to school?
A Yes, sir,
Q, Yon have also heard those students discuss at what•i:
time they got up and what time they returned homej is that
correct?
A That is correct,
Q, I believ© you testified you don’t know anything
about, this Oak Ridge high school that is operated there?
A Ho, sir, I would not,
Q, You do know that Oak Ridge is a part of Anderson
Testimony of D» <J. Brittain
Testimony of D. J. Brittain 1
County?
A Yes* sir.
Q, Or the town of Oak Ridge is part of Anderson County
A Yes, sir.
Q, Mr. Brittain, then you are saying that your reason
for denying this application for entrance to the school
there on the occasion as previously testified was not as
to color but because of the state lawj is that right?
A Well, that's pretty hard question to answer.
Q, Were you enforcing the state law, Mr, Brittain,
when you —
A Yes, sir.
Q — took what action you did?
A I was trying to enforce the state law.
Q, I f that law hadn't been on the books, and if you
hadn't been aware of it, you would have admitted thems
is that correct?
A Yes, sirs that's correct.
MR. LEWALLEN% I believe that's all.
REDIRECT EXAMINATION
BY MR. LOOBYg
0, You say that your refusal was not based upon color
but on the state law?
A Well, I wouldn't say that. I would say the race »-
there is no way I could see that I could Interpret that
law, your Honor, It says that Negroes and whites shall
not go to school together, and my interpretation of it
was that these people were Negroes. Now I might be
mistaken about that, but that was my interpretation of
it.
Q, They look like it anyway,
A In line with the law that was the basis upon which
I made my decision,
Q So that it was because of the race predicated upon
what you think the law of the state is?
A Not by what I think the law is, but what to my
knowledge the law is, yes,
Q Did you happen to know anything about the University
of Tennessee?
A Yes, sir, I know something about the University of
Tennessee,
Q, Well, since you have been keeping up with the law,
do you know that there is at least one Negro student at
the University of Tennessee?
MR, LEWALLENs We are going to object to this, what
they might do at the University of Tennessee,
MR, LOOBYs If your Honor please, may I ask this
witness about law? I didn’t know the witness qualified
as a lawyer,
THE WITNESS? I will be glad to answer.
Testimony of D„ J. Brittain
Testimony of D. J. Brittain 1?4
THE COURTS He says he will be glad to answer.
A The solution to that question came a long time
after this question was faced to me, that the University
of Tennessee admitted Hegroes only recently, and if I
understand it correctly, that was to the graduate school,
And. because the University of Tennessee admits them does
not mean that I as a high school, principal have to admit
them if the law of Tennessee says I do not,
Q (By Mr, Looby) How, Mr, Brittain, you also testi
fied aboutwhite students who had to ride to Clinton High
School.
Do you know of any white student living within a
quarter or half mile radius of Clinton High School that
is obliged to go out of the county to high school?
A Within now you say a half mile of Clinton?
Q, Within a quarter to half mile radius?
A Hot to my knowledge.
0, So that any student living in Clinton within —
going a little farther — within the radius of a mile
who is qualified to enter high school and who makes appli
cation at Clinton High School would be admitted?
A Yes,
MR, LOOBY; Thank you.
THE COURT; Are you familiar with Austin High School?
THE WITHESS; Only by hearsay.
Testimony of D. J. Brittain 175
THE COURTS As an educator, do you think you are
familiar with it?
THE WITNESSs I am familiar.
THE COURTS Can you tell me about It as a school,
about its standing?
THE WITNESSs It is my understanding, Judge, that
Austin High School, and this is my opinion, is a A-l high
school, and it is a member of the Southern Association of
Secondary Schools and Colleges, which is on a rating basis
one rank higher than an A high school, which is what
Clinton is.
Is that what you want to know?
THE COURTS How many students do they have here?
THE WITNESS? I can’t tell you that, sir. I could
get that information for you, hut I cannot tell you offhand.
THE COURT? What do they teach compared with the
other high schools in the State of Tennessee?
THE WITNESS; Well, I am under the Impression -«■
THE COURTS Is it the same or different?
THE WITNESS; I am under the impression that they
teach the same curricula. I understand that their eurrieu-
lum is broader than ours in that they teach industrial arts
and mechanical work and have a broader vocational arrange-
ment than we have. I am subject to correction on that,
but that is my understanding.
176Testimony of D.J. Brittain
THE COURT? Are yon acquainted with any of the
instructors?
THE WITHESSt Ho, sir, I am not.
THE COURT? All right.
FURTHER REDIRECT EXAMINATION
BY HR. LOOBY?
Q Mr. Brittain, Anderson County is primarily an agri-
■cultural section, isn't it?
A Well, that I do not feel qualified to answer because
I don't know. I will say at one time it was. But since
Oak Ridge has come in and a great many other things I
would not want to say what the principal occupation is.
Q, Aren't the schools, especially the high schools,
the curricula arranged primarily to meet the needs of the
community, isn't it?
A Within the amount of money that we have available.
Q, "Well, within the amount of money you have available
your curriculum is designed primarily to suit the needs of
the community?
A That is correct, yes.
Q, And you have courses in agriculture, haven't you?
A Yes.
Q You have a separate building for that?
A Yes, sir, we have an agricultural shop.
I might add further on that same point that we do
not have enough buildings for our own students, Judge„
We are renting buildings across the street for students
who attend Clinton High School for lack of room* if you
want the whole picture.
Q, Do you know anything about the conditions of the
building at Austin High?
A I do not, no, sir. I have never been in that high
school.
Q Frankly, you don’t know anything about Austin High?
A Just from reputation. From all I hear it is a
fine high school.
Q A fine Hegro school?
A Yes. Yes, sir.
MR. LOOBY; That’s all.
RECROSS EXAMINATION
BY MR. LSWALLEH;
Q Mr. Brittain, I believe you said the conditions are
crowded at Clinton High School?
A Yes, sir.
Q, How many students did you say you had there?
A We have 600 students.
Q Did you say you are renting other buildings?
A That is correct,
Q For the purpose of your students attending classes?
A Yes, sir, that is correct. We use — do you want
Testimony of D.J. Brittain
that developed further?
Q, Yes, tell his Honor. He would like to know, I am
sure.
A At the present time I can give specific information
on this because the state high school inspector attended
a PTA meeting in Clinton last night, in which he informed
us that unless a building was immediately constructed
for these students that this school would be lowered from
a grade A school to a B or C school. He pointed out the
fact this was constructed for 175 and now has 600 students
there in it. It doesn't have study hall facilities. We
use our auditorium for study hall. 150 students in there
without desks or tables to work on. Don't have physical
education facilities for all our students,have to rent
a recreational hall across the street where we send our
students. We don't have facilities for a band and have a
music, department. They are also within this same depart
ment ,
We don't have a school cafeteria. There is space
for such cafeteria, but it has been in use for class room
space because we have no place else to go.
That roughly will give a picture of the school.
Q That building, the recreation building you spoke
about that you use for some of these activities or classes,
that is across the state highway, isn't it?
Testimony of D, J, Brittain 1?8
Testimony of D, J. Brittain 179
it is.
Q, Through, traffic on that highway?
A Yes, sir,
Q Buses travel that highway?
A Yes, sir.
Q, Commercial buses, common carriers, is that right?
A To the best of my knowledge.
MR, LEWALLER; I believe that's all.
THE COURTS Are the elementary schools involved
in this suit, too?
MR. LOOBYs Ho, sir,
THE COURTS They are not. Just the high school?
MR, LOOBYs Yes, sir.
THE COURTS Just the high school. All right.
MR. LOOBYs I want to ask him another question.
Since the highway is brought in, I want to bring a few
more highways and byways in.
REDIRECT EXAMINATION
BY MR. LOOBYs
Q You say that your school is divided, that is, part
of it is across the highway?
A The school is not divided. The part we are renting
is across the highway,
Q. Of course, that makes it dangerous for school purposes?
A Yes, sir, that is across the highway, 6l I believe
Testimony of D, J„ Brittain 180
Q, How where students have to leave Clinton and go
all the way to Knoxville by the highway and bus, that, is
still making it even more dangerous, isn’t it?
A Well, I would say any time anyone crosses a highway
it is dangerous, yes, sir.
Q So that going from Clinton to Knoxville is even a
more dangerous thing than the conditions which you have
just described at Clinton?
A 'Well, I would say that we have other bus students
who travel comparable distances.
Q I am talking about students who live in Clnton,
Mr. Brittain.
A Well, that might be true, and it might not be true.
If a student has to walk a mile and a half to go home and
has to cross a number of highways, it might be much more
unsafe for him than it would be for a student to walk down
two blocks and get on a bus.
Q It is also even more so true when he has to walk
a mile and a half and then catch a bus and travel about
19 miles, isn’t it?
A If that is true, I would agree with you. But that
is my opinion. My opinion.
Q Shat is opinion?
A That is what I believe. That is not a fact.
A Yes, sir.
Testimony of D» J. Brittain l8l
Q You say that it is not a fact that any student has
to walk a mile and a half?
A No, You are talking about a matter of safety.
You are wanting me to express my opinion upon whether it
is more safe to do that, this, or the other. I say that
is nothing but my opinion,
MR, LEWALLEN! I want to object to this. He is
not a safety expert,
MR. LOOBYs Neither are you an expert and been testi
fying for him.
MR. LEWALLEN: I will be glad to go under oath if
he wants to qualify me as an expert and testify on the
subject.
MR. LOOBYs I will gladly do so on condition I be
given the same privilege, your Honor.
THE COURT! Anything further?
MR, LOOBY! No, your Honor.
(Witness excused.)
THE COURT! Call the next witness.
MR. LOOBY! If your Honor please, another defendant
I am putting on.
THE COURT! Take a short recess, gentlemen.
(A recess was had.)
FRANK E. IRWIN
called as a witness by and on behalf of the Plaintiffs, being
Testimony of Prank E. Irwin 1 82
first duly sworn, was examined and testified as follows!
DIRECT EXAMIMTI OH
BY MR. LOO BY8
Q Please state your name, sir.
A Prank E» Irwin.
Q Mr. Irwin, what is your business or profession?
A I am Superintendent of County Schools, Anderson
County.
Q How long have you held that position?
A Three years,
Q Prior to that time, what was your business or pro
fession?
A I was principal of Lake City High School, Lake City,
Tennessee.
Q That is also in Anderson County?
A Yes, sir.
Q How long have you been In the field of education
in Anderson County?
A About 20 years.
Q As county superintendent of education, what are
your duties with respect to the county schools of Anderson
County?
A Executing the policies of the School Board of Ander
son County.
Q, You are the administrative officer of the county?
Testimony of Prank E. Irwin 183
ft Of the county educational system?
A Yes, sir.
q Mr. Irwin, from your knowledge and experience during
all these twenty years in Anderson County, state whether
or not a separate system of education is maintained, that
is, separate as to races?
A It is.
ft And does that condition exist today?
A Yes, sir.
ft So that you have separate elementary schools for
both races?
A Yes, sir.
ft Do you have separate high schools for both races?
A Yes, sir.
ft Where is the county high school for Negroes in
Anderson County located?
A Austin High School in Knoxville.
ft Is Austin High School in Knoxville a county school
of Anderson County?
A It is not.
ft Then I repeat my questions What county high schools
exist in Anderson County maintained and operated for Negro
students?
A Yes, sir,
A Not any outside of Oak Ridge.
Testimony of Prank E. Irwin
Q Is there a high school in Oak Ridge maintained
and operated by the county board of education?
A I am not competent to answer that question,
q Isn’t it part of your duties as superintendent to
supervise the entire educational system in Anderson County?
A We assume no supervisory function of the Oak Ridge
schools.
<Q That wasn’t the question, Mr. Irwin.
A The question again, please.
MR. LOOBYs Will you read the last question, please.
(The question was read by the reporter.)
A It is.
Q (By Mr. Looby) So that if Oak Ridge was a part of
the county educational system it would fall directly under
your supervision, wouldn’t it?
A Yes, sir.
Q Your answer then to the question as to whether
Oak Ridge was, the school in Oak Ridge was part of the
educational system in Anderson County is in the negative?
Sir?
A Yes, sir.
Q Then I go back to my original questions Is there
any high school in Anderson Gounty maintained and operated
by the county board of education for Hegro students of high
school age?
18I4.
Testimony of Frank E. Irwin 185
A No, sir,
Q, Are there, and, if so, how many, high schools in
Anderson County maintained and operated for whit© students,
Mr. Irwin?
A Thre e„
Q Is one of those three high schools located in Clinton?
A Yea, sir,
Q What is the name of that school?
A Clinton High School,
Q, And who is the principal?
A ID, J. Brittain, Jr,
Q And that high school maintained and operated by the
Anderson County Board of Education is maintained and opera
ted exclusively for white students?
A Yea, sir,
Q, Approximately how many students of high school age
are there in Anderson County?
A In Clinton or in all the county?
Q, In all the county?
A About 599 in Clinton, around 320 at hake City, and
about 250 at Norris, I haven51 totaled them up,
THE COURTS 599 Clinton, 320 Lake City, 250 Norris,
MR, WILLIAMS? Did he say 250?
THE WITNESS? That is approximate,
MR, WILLIAMS? That is ll60.
Testimony of Prank E, Irwin 186
THE WITNESS? I don't have the exact figures,,
Q, (By Mr, Looby) Then you have approximately 115>0
Negro students of high school age?
A That is approximately correct,
MR, LEWALtENs I don't believe Mr, Irwin understood
it.
MR. LOOBY? My question, I may have not made it
clear, but I understand what I am saying. Maybe nobody
else does,
MR. LEWALLEN? I don't think the witness understood
it. You asked if he had 1150 Negro students in the county.
THE WITNESS? White children, and approximately 30
Negro children of high school age,
Q, (By Mr. Looby) You have approximately 30 Negro
students of high school age all over the county?
A As of the beginning of the school year,
Q. Approximately how many elementary, how many students
of elementary school age, Negroes, are in Anderson County?
MR. LEWALLEN? If your Honor please, I think we
stipulated elementary schools didn't enter into the matter,
MR. LOOBY? That is true, if your Honor please. I
am trying to determine how many of those students go to
hig)a school and why.
THE COURTS All right, I will let you ask.
A You want to know how many colored elementary children
Testimony of Prank E., Irwin 1 8 ?
are in the county?
Q (By Mr. Looby) Yes, sir®
A In Anderson County?
Q, I will limit the question this ways Approximately
how many elementary Negro children of elementary school
age graduated from the elementary school last year?
A Approximately, I guess, seven or eight.
Q Seven or eight?
A Yes.
Q Prom all over the county?
A Prom all over the county.
Q Do you remember some time late in August or early
in September, 1950, a delegation of colored citizens of
Anderson County came to your office with respect to the
admission or the application of certain Negro students
to high school?
A Yea, sir.,
Q And 1 believe you are a defendant and you were
present in court during all the trial?
A I didn8t understand?
THE COURT? You are a defendant and have been present
in the court room during this trial?
THE WITNESS? I have.
Q (By Mr* Looby) And you saw and heard Mrs. MeSwain
and her son testify?
A Yes, sir.
Q, Do you, recognize them as part of the delegation
that cam© to your office?
A I recognize the young man* I can’t remember Mrs,
IcSwain being there., I suppose she was.
Q, Do you remember this ministers Reverend Willis?
A I do remember him.
Q Sir? *
A I do remember his being there*
Q And I believe that Mr* McSwain was spokesman for
the gro up ?
A Yes, sir*
Q What did he say with respect to these students’
application?
A It was my understanding that the boy wanted to enter
school* I was mixed up at that time as to his name. I
understood his name was Joheather at the time. And I
found out later that his sister was named Joheather, and
I do remember that he acted as spokesman.
Q And Joheather was the name that was given to you
for the person who wanted to enter high school?
A He didn’t ■=■= as I remember <*— specifically state
who wanted to enter* He was speaking I thought in behalf
of the group, and I thought he was including himself in it.
Q ’Well, he did tell you there were five students who
wanted to enter high school?
Testimony of Prank E. Irwin
Testimony of Prank E* Irwin 189
A I can’t remember any number that was given,,
q, But you do remember there was several?
A There were three or four in the party*
q «ien he told you that they had made application
to Clinton High School for entrance to the high school?
A Yes* he said that Mr. Brittain had referred them
over to the superintendent’s office*
q And you being the superintendents, they came to you?
A Yes, sir*
Q, In other words* they just threw it in your lap?
A Yes* sir* I suppose*
q What did you say or do with respect to this applica
tion for admission to the high school?
A I pointed out all the advantages that the county
was giving them* And they weren’t satisfied* I told them
that it was contrary to the laws of Tennessee* and that
it wasn’t a personal matter as far as I was concerned*
and that after some argument* which was all friendly* I
read
Q And still is* Mr* :Irwin?
A 1 beg your pardon?
Q It still is?
A Yes*
Q You say it was all friendly* It still is*
A That’s right* And I read them a section from the
Testimony of Prank E, Irwin 19 0
Constitution and Section 12, I believe, Article 11, if I
remember correctly, which you are familiar with,
q The sum total then, Mr, Irwin, is that you ratified
this refusal because it was your position that the Con
stitution and statute of the state prevented you from
admitting the students?
A Yes, sir, the statute prevented that,
Q What provision, if any, is mad© for Negro students
qualified to enter high school who are residents and citi
zens or at least their parents are residents and citizens
of Anderson County?
A ’What provisions are made?
Q Yes, sir,
A The county has designated Austin High School in
Knoxville as the attendance center for the Negro high
school children with all expenses paid. At the present
time they are furnishing a special bus for the transporta
tion,
Q Now that bus has been provided since when?
A That bus began service at the beginning of this
school, year. Prior to that time we were furnishing the
transportation by common carrier,
Q ’When did you begin furnishing transportation by
common carrier?
A Ever since 1 have been superintendent. The school
Testimony of Frank E. Irwin 191
which was designated as the attendance center for the Negro
children we have provided all expenses to that school.,
Q, What school was designated as the school for atten
dance of Negro students in September, 1950?
A LaFollette High School, Colored High School.
Q, And where is that?
A LaFollette, Tennessee.
Q And what county?
A Campbell.
Q, Campbell County. What was the rating of that school?
A The rating of that school?
Q, Yes, sir.
A It was a C grade school at the time.
Q So the high schools in Anderson County, what were
their rating?
A A.
Q I see. So you had three A high schools in Anderson
County for white students and shipped the colored students
off to a C grade school in another county?
A But when we were fully aware of the status of the
high school at LaFollette, we designated Austin High School
at Knoxville as attendance center.
Q How long has that been done, Mr. Irwin?
A I believe that was September, 1950.
Q November, 1950?
Testimony of Prank E, Irwin 192
A Maybe it was November, Novembers 1950,
Q That was after this controversy developed?
A That was after this delegation had come to my
offie© and formally protested on the high school at LaPol-
lette. We investigated the conditions and found that the
conditions were substantially true as they had stated.
So at a special meeting of the school board, we designated
Austin High School as the attendance center,
Q, And that was also subsequent to the time that you
received my letter, wasn’t it?
A I would have to have the date of that letter,
Q, Sir?
A I would have to have the date of that letter before
I can answer that, I don’t remember offhand,
Q You do remember receiving a letter from me within
a short while after this delegation had been to your
office?
A I do remember receiving a letter from you,
Q, How long had LaFollette been designated as the
school to which Negro students had to go?
A To my knowledge only three years, I can’t answer.
Q. During all those three years you mean the board of
education of Anderson County made no effort to ascertain
what kind of school they were shipping these Negro students
off to?
Testimony of Prank E, Irwin 193
A Wells they were satisfied* we thought* and we had
really had no reason to investigate*, I didn't,, They were
going there when I came in as superintendent, I thought
they were satisfied,
Q You thought who was satisfied?
A Yes* sir,
Q, Who* you say?
A The Negroes,
Q The Negro students?
A Yea, With the exception* I will qualify that * with
the exception of two or three parents that did complain*
but we have the same complaint from all parents,
Q But the board which designated this as the school
and which is paying this money to the school made no effort
to determine the quality of the school?
A Well* we knew that it was ~~ w© knew that the school
was approved by the state board of education,
Q As a matter of fact* the fact that the Board was
paying per student at LaPollette and have to pay $109
at Knoxville* did that have any effect on you?
A Not materially. We did pay students' tuition to
Austin High School who were dissatisfied with LaPollette
prior to the time the delegation ever called on us„
Q But you didn't pay the transportation* did you?
A Well* w@ did not pay the transportation. Didn't
Testimony of Prank E* Irwin
ask us too
Q How far is LaFollette from Clinton?
A About 25> miles, I think*
Q How far is Knoxville or Austin High School from
Clinton?
A 19 miles*
Q, And so up until the time that this controversy
developed, you selected the school that was farthereat
away from Clinton?
A Yes, sir*
Q _ Do you know where the MeSwains live?
A I couldn't go right to their home*
Q You know about where?
A I know about where they live*
Q Bo you know about where Reverend Willis lives?
A Yes, sir, just about*
Q Do you know about where the Dickies live?
A Yes, sir*
Q And any high school student, any student of high
school age who happens to b© white living in that locality,
or any of the three localities, would in the ordinary course
of events attend Clinton High School, wouldn't they?
A Yes, sir*
Q Where are those three high schools that Anderson
County operates and maintains for the benefit of whit©
19k
Testimony of Prank E„ Irwin 195
students? Where are they located? Clinton High School
is in Clinton,, The next one is where?
A Lake City High School at Lake City, and Morris High
School at Morris.
Q Specificaliy, Mr. Irwin, if these plaintiffs, these
infant plaintiffs, who it is admitted ar© all qualified to
enter high school, if they were white, they would have
been admitted to Clinton High School, wouldn’t they?
A Yes, sir*
Q Sir?
A Yes, sir*
Q And the fact that they have to travel 19 miles going
and 19 miles coming from high school in any and all sorts
of weather is because they happen to be colored, isn’t
that true?
MR, G-lLBERTSOMg May it please your Honor, we
stipulated they ar© required to attend separate schools
by law.
MR. LOQBYg You stipulated the answer to this ques
tion?
MR. GILBERTSOMg I don’t recall right off what you
asked him right her© now, but if going into the -«•
MR. LOOBYg We will be glad to read that to you.
We will read that to the gentleman,
MR. GJLBERTSONg It seems to me, if your Honor please,
Testimony of Frank E. Irwin 19&
if we ape going into the background of all these stipulations,
there is no necessity for it.
MR. LOOBY s If your Honor please, that, is all this
case is about,,
THE COURTS I will let him answer if he can.
Q, (By Mr, Looby) Will you go ahead and answer the
question1?
A Would you state that question again, please?
Q I want you to get it just like I gave it to you,
MR. LOOBY'S I am going to ask the reporter to read
it, piease0
(The question was read by the reporter.)
A In this particular case I would have to say yes,
Q All right,
A Your Honor, may I qualify that?
THE COURTS Yes,
MR. LOOBYs You may take the witness.
THE COURTS Yea, go ahead.
THE WITHESSs The reason is because of where they
live, that they have to travel that distance, in all kinds
of weather. Any student who rides a bus has to travel in
all kinds of weather. And wa have white children traveling
almost as far, on the road longer on school buses coming
to Clinton High School than these particular children
traveling going to Austin High School.
Testimony of Prank E0 Irwin 197
Q, (By Mr, Looby) That's true, admitting that to be
trues but I am talking about this particular place where
these infant plaintiffs live, that if they were white
they would go to Clinton High School?
A Yes,
Q And would not have to travel 19 miles going and 19
miles coming?
A That is right,
Q By the way* the bus stop where these students get
on, it is in the open* wide open spaces,, where they would
have to catch the bus, isn't it?
A I suppose that they can get shelter inside of the
bus station if they so desire,
Q, That is in the commercial bus, using the commercial
bus?
A They could use the commercial bus station as a shelter
if they so desired,
Q When they are using a school bus they can also use
the commercial bus station?
A That is my opinion,
Q, But has the county made any provision for that?
A Hot any more than I would assume that they would go
into the bus station out of the weather,
Q But the county has made no provision for that?
A Hot any as yet, because we have had no occasion to.
Testimony of Prank E„ Irwin 198
The station operator has never complained about their
using the facilities in the station* and we have* had no
occasion .to go into that matters
q Ihen the bus leaves Clinton it makes two stops
before it gets to Knoxville* isn»t that right?
A I believe that is righto
Q, Where are those stops?
A At Gadson and Lonesome Bove*
q At Gadson there is no shelter* is there?
A At Gadson the bus turns around and no child of my
knowledge has to walk further than three or four hundred
feet to catch the bus„
cq Mow in this Lonesome Dove* there is no shelter there*
is there?
A There is no shelter there* and the child would have
to walk less than 1*000 feet to get the bus there,,
Q Would the child have to stand on the highway?
A We have no bus shelters in Anderson County for any
bus children*
MR* LOOBYg That’s all*
CROSS EXAMINATION
BY MR* DAVISg
Q Mr* Irwin* does Anderson County furnish bus shelter
for white children going to school in Anderson County?
A It does not*
Testimony of Frank E. Irwin 199
Q Do whit© children living at Lonesome Dove have a
bus shelter?
A They do not,
Q Do white children living at Gadson have a bus
shelter?
A They do not.
Q Is it not true that all children going to school
either walk in all kinds of weather or ride the bus in all
kinds of weather?
A That is right.
Q Have you been in Austin High School in Knoxville?
A I have.
Q, What kind of plant facilities do they have there,
Mr. Irwin?
A 1 don't want to seem facetious, but after being
acquainted with some of our high school conditions in our
county, they look like they have an adequate plant.
Q How many stories is Austin High?
A Two stories and a basement, or a partial basement,
I believe.
Q Is it smaller or larger than Clinton High School?
A It must be very nearly the same number of square
footage in each building.
Q In each building?
A That is just an offhand opinion.
Testimony of Prank E0 Irwin 200
Q Does Austin High School have a gymnasium?
A It does.
Q Does it have a work shop for all types of vocational
education?
A They do. I did not visit the vocational shops, the
woodworking shops.
Q Do you know what the rating is that the State of
Tennessee has given Austin High School?
A It being a member of the Southern Association of
Secondary Schools and Colleges, it must have an A-l rating.
Q Do you know ©f your own personal knowledge whether
it has or not?
A I haven51 seen it on paper.
Q 'Shat does being a member of the Southern Association
of Secondary Schools and Colleges mean, Mr. Irwin?
A It means a better qualified staff of teachers. That
is a must. A lower rated school might have as good a
faculty, but the Southern Association school must have a
larger percentage of master degree teachers. They must
have better library facilities, better facilities all over,
than the A grade school.
Q Is Clinton High School a member of the Southern
Association?
A Ho, sir.
Q Mr. Irwin, the fact that Anderson County has separate
Testimony ©f Frank E0 Irwin 201
&
schools or provides separate facilities for colored and
white children is based upon the state law, the law of
Tennessee| is that correct?
A Yes, .sir..
Q, Has the school board of Anderson County, Tennessee,
since you have been superintendent, made an effort to
provide the Uegro scholars living in Anderson County with
as good or better educational facilities as white children?
MR, LOOBY? Just a minute, if your Honor please,
I am objecting to what efforts they have made. We are
not interested so much in efforts.
THE COURT? Objection sustained. Have they done
that.
Q, (By Mr. Davis) Have they done it, Mr. Irwin?
A We feel that we have done that, and that at the
present time we are giving the Hegro children in Anderson
County superior school from anything' that we have in Ander
son County for the whit© children.
Q In other words, the colored children are getting
superior high school education now?
A They are. They have a broader curriculum at Austin
High School. They offer certain courses that we can never
offer in the foreseeable future in our Anderson County
white schools.
Q, Is it a matter of fact that the high sdi ool at Clinton
Testimony of Prank E, Irwin 202
has got down to such an extent it will be degraded next year
or a good possibility of that?
A We have been —
MR, LOOBYs If your Honor please, we are not testi
fying here as to possibility0
Q (By Mr, Davis) Were you given a definite command
in relation to it?
A We have been given a definite warning.
Q By whom., Mr, Irwin?
A By the supervisor of high schools for East Tennessee.,
Q, 'What sort of warnings Ir, Irwin?
MR, LOOBYs If your Honor please, whatever communi
cation or conversation to this man wouldn't be admissible
as evidence,
MR, DAVISs What rating the school would be, which
he gained in M s official capacity, would be,
MR, BOOBYg The only testimony that would be admis
sible is what rating the school is, not what a supervisor
may fell might happen in the near or distant future,
THE COURT? As substantive evidence, what the State
superintendent said would be hearsay. But I will let you
tell, let you describe the conditions, both physical condi
tions and the curriculum of the Clinton High School, I
think that ought to be described. You may also describe
the physical facilities and the curriculum of the Austin
High School* How do they compare* You can do that*
A On a comparative basis the Austin High School at
the present time is superiors, in ray opinion* to the Clinton
High School at the present time*
THE COURTS Now in physical facilities, describe
what you have at Clinton and describe what they have here
at Austin*
THE WITNESSg We have 600 students using facilities
that were built for 1?5 to 200 students at Clinton* We
are having to rent a building across the highway 6l for
certain parts of the school program at Clinton* The curricu
lum at Clinton, with the exception of agriculture and the
commercial classes, I believe thatfs only bookkeeping and
\
typing at the present time - I am not positive of that —
and vocational home economies -- with the exception of those,
the courses are traditional college preparatory courses,
with your English, history, sciences, and so on* The library
at Clinton is very inadequate* It is a space large enough
to accommodate possibly 20 students, maybe not that many*
They are crowded in every respect.
We have a cafeteria room that we were forced to use
for class room, and never been able to operate a cafeteria
because of that*
The physical education plant is only one-half large
enough by state standards*
Testimony of Frank E» Irwin 203
Testimony of Prank E, Irwin 20lj.
The study hall is at the present time housed in the
auditorium without proper desks, They are using the
fastened down auditorium seats, and classes are overcrowded
in general.
The traffic is so heavy I notice that the principal
has one-way traffic signs up in the halls to relieve the
congestion,
Austin High School, what I saw of it -«* I am not
too well qualified to speak on Austin High School, I haven’t
been there enough. But I did see less crowded conditions
than I saw at Clinton High School, than I have seen at
Clinton High School,
I did see, of course, a course in their curriculum
of commercial cooking for Hegro boys that we cannot ever
hop© to provide commercial cooking class for our boys. We
don’t have facilities to do it.
They have automotive mechanics, woodworking, and
industrial, arts, let’s say, I was told, which I didn’t
visit that part of the school plant.
The other courses they have are commercial, typing,
and vocational horn© economics,
Q, (By Mr, Davis) Did you visit their library?
A Their library, yes, 1 am sure 1 visited the library
and is much more adequate than Clinton,
Q Was it larger than the Clinton library?
Testimony of Frank E, Irwin 205
A The physical education plant is much more adequate
in my opinion.
It is a larger room,
Q Does the school board of Anderson County or board
of education make facilities at Austin High available to
the colored high school .students of Anderson County?
A T@ss sir,
Q, Does the school board pay all their tuition?
A All their tuition and transportation,
Q And all transportation charges?
A Yes,, sir,
Q, Bo the Uegro high school students living in Anderson
County have to spend any money or go to any expense in
attending Austin High School that they would not have to
go to if they attended Clinton High School?
A loj, sir,
Q, Do you know how long it takes the infant plaintiffs
and any other Segno children of high school age to get from
Clinton to Austin High?
A About I4.O minutes,
"Q Do you know what time Austin High School begins
its sessions in the morning?
A Iffidat?
Q At what time Austin High School begins its class
room sessions in the morning?
Testimony of Frank E, Irwin 206
A No, I don't. I can't say.
Q Do yon know what time the school is out in the
afternoon?
A I judge about four o'clock in the afternoon, by the
time the bus gets back,
® You do not know exactly?
A 1 cannot answer exactly, no, sir.,
Q, Do you know whether or not the Negro high school
students living at Clinton and attending Austin High
School’ used the bus station as a shelter while waiting for
the bus?
A I don't know that they do, but I feel positive
that they have access to it if they want it.
Q Are any white children living in Anderson County,
Tennessee, required to attend high school outside of Ander
son County, Tennessee?
A Yes, sir.
Do you know how many white children are required
to attend high school outside of Anderson County?
A Well, we have 118 high school children who ar©
attending high school dutside of Anderson County0 A
number of those are required to. All the Frost Bottom
children and Wind Rock children are required to attend
high school at Oliver Springs,,
Q Is that not in Anderson County?
A lo.
Q What county is that in?
A That is Roane County*
THE COURTS Why is that?
THE WITNESSs Sir?
THE COURTS Why are they required to attend?
THE WITNESSs We don’t have a high school in that
area for them*
■Q, (By Mr* Davis) Where is the Wind Roek area and
Frost Bottom area you are speaking of, Mr* Irwin?
A I believe if my direction is correct that it is
about north of Oliver Springs*
Q Is that in the coal, mining region?
A Coal mining region*
Q They hoard a bus of Anderson County?
A Yes, sir*
Q, Do the high schools in Anderson County offer identi
cal courses of study, Mr* Irwin?
A No, they do not*
Q, Do you know the differences in the courses?
A Well, there are certain basic courses required by
the State Board of Education, and there are certain
optional courses* For example, Clinton High School offers
vocational agriculture. We have another high school that
doesn’t offer vocational agriculture. That is one specific
Testimony of Prank ”E. Irwin 207
Testimony of Prank IS, Irwin 208
difference,
Q, Do white children who walk to school or furnish
their own transportation to high school receive any compen
sation from the board of education for their transportation
to and from,school, Mr, Irwin?
A How you are referring to those children vh o live
more than a mile and a half where w© don’t have an estab
lished bus route?
Q, That’s right,
A They do not,
Q They do not receive any compensation?
A No, sir. Now they could claim it,
Q, You say the white children could claim compensation?
A They could claim it, but we haven’t had any, don’t
have any at the present time,
Q, Do you know what the average travel time required
of white children going to and from high school and living
in Anderson County is?
A We have children who are on the road as much as
one and a half hours from the time they leave home until
they get to the high school. That is due to the fact that
one bus is serving as high as three different routes in
some instances,
Q, Are those white or Negro students?
A White,
Testimony of Frank E, Irwin 209
Q Has any directive ever been issued by the school
board or by you that is discriminatory against Negro
school children as such, as to color?
MR. LOOBYs Just a minute. If your Honor please*
that is what the Court is going to decide.
THE COURTS Do you object?
MR. LOOBYs Yes* sir.
THE COURTS Objection sustained.
MR. DAVIS s Your Honor* that was one of the questions
you asked us to stipulate to* and 1 was trying to answer.
THE COURTg
afraid —
You may ask about any facts, but I am
MR. DAVIS § 1 asked if any directive.
THE COURTS
disc riminat ion.
I will decide whether there is any
MR. DAVISs I didn’t ask had they discriminated.
I asked if there was any directive issued* in other words,
a written command.
THE COURTS You would have to show me the directive*
and I would have to decide whether it was discriminatory
after I see it.
MR. DAVIS §
tiv© whatsoever.
Your Honor, there hasn't been any diree-
MR. COWANs He can't tell your Honor.
THE COURTS You may ask him if there was any directive
Testimony of Frank E. Inwin 210
of that kind*
MR. DAYlSg That's what I asked him, your Honor.
I didn't pronounce the words very distinctly.
Q, (By Mr. Davis) Has any directive been issued by
the school board or by any other defendant including
yourself that is discriminatory?
MR. LOQBYg Just a. minute, your Honor.
Q (By Mr. Davis) Or that is against Negro school
children?
MR. LOOBYt I am objecting.
THE COURTS Objection sustained.
Q (By Mr. Davis) Is there any directive concerning
Negro or white children at all that has been issued by you
or the school board in regard to health, culture, and
other opportunities?
A Hot to my knowledge.
0, Not to your knowledge, you say.
Did any of the infant plaintiffs in this case or any
of the adult plaintiffs demand that they be afforded courses
in the high school that they had been attending during the
pendency of this litigation, Mr. Irwin, any specific
courses?
MR. LOOBYg Let me get the question again.
Q (By Mr. Davis) I asked if any of the infant plain
tiffs or any of the adult plaintiffs made a demand that
Testimony of Frank E. Irwin 211
they be afforded any particular course in the high school
curriculum that they were attending during the pendency
of this litigation?
A I don’t think so,
Q, Answer that again,, I didn’t hear®
A I don’t remember that®
Q, If they did, you don’t remember?
A No, sir.
Q Are the funds used to operate the high schools of
Anderson County, Tennessee, maintained solely by taxation
from the people of the county or not?
A No, sir,
® How are the funds provided and who by?
A The state through Its equalization funds provides
about three-fourths of the services for our schools, about
three-fourths of the funds for the operation of our schools
and maintenance®
Q, Were 75 per cent of the funds furnished by the State
of Tennessee?
A I believe that is approximately right®
Q Is your salary paid by the State of Tennessee?
A It is.
Q Are the salaries of the teachers of Clinton High
School paid by the State of Tennessee?
A They are through the equalization program.
Testimony of Prank E, Irwin 212
Q, Does the State of Tennessee exercise supervision
of Clinton High School and the other high schools of Ander
son County's, Tennessee?
A They do, It doe *, rather.
Q Boss the State of Tennessee designate the required
number of courses and number of teachers, and the minimum
salary of teachers, and do they rate the high schools?
A The State Board of Education rates the high, schools.
We can go as far beyond the minimum program as our funds
will permit, but the State Board of Education does require
a minimum program,
Q, Does the State of Tennessee determine the qualifica
tions of the teachers?
A Ye So
Q Does the State of Tennessee determine your own
qualifications?
A Ye a,
Q Superintendent of schools?
A Ye So
Q, Does the State of Tennessee provide the money and
funds with which Austin High is operated on?
A 1 believe that Austin High and the City of Knoxville
operate on an equalizing system,
MR, LOOBYs Wait a minute,
MR, DAVTSs If he doesn5t know, I want him to say that.
Testimony of Frank E„ Irwin 213
MR, LOOBY? Tell what he knows and not what he
believes,
THE COURTS All righto
Q (By Ir, Davis) Do yon know, Mr, Irwin, whether or
not the statutes of the State of Tennessee governing the
schools of the State of Tennessee provide in part that
county boards of education may send children from one
county to another county?
MR, LOOBY? If your Honor please —
THE COURT? That is a matter, Mr„ Davis, you will
have to brief for me, you lawyers,
MR, DAVIS? He knows that, too, your Honor,
THE COURT? Those are legal matters, I am expecting
you to furnish me a brief on the matter,
§ (By Mr, Davis) Mr, Irwin, do you know how much
money the State of Tennessee spends in sending a white
high school student to Clinton High School?
A In Anderson County we are spending approximately
#120 a year per capita,
Q, #120 per student.? is that right?
A Yes, that is in Anderson County,
Q Do you know how much money is 'being spent to send
a Hegro child to high school per year?
MR, LOOBY.'? If your Honor please, I am. objecting
to this line of examination as it is immaterial what is
spent. It is not a question of how much is spent. It
is a question of whether or not the county may discriminate
to the extent that it requires one to go out of the county
and another in the county. That is all it is, at all.
MR. DA VIS ? Your Honor, that will just be indicative
only of how the county felt.
THE COURT? You are asking him. how much the state
spends in Anderson County on white people, is that it?
M R . DAVIS? I asked that.
THE COURT? And what else?
MR. DAVIS? How much they spend on colored children
in Anderson County.
THE COURT? I will let h:im answer that.
MR. DAVIS? It may or may not be material, but it
will be indicative of what we are trying to do.
THE COURT? All right. I will let you answer,
A May I qualify that last answer? The state — Ander
son County operates as an equalizing county.
If we maintained a minimum program set up by the
state, and put up the required amount, which is $103,000
for our county, the stats then guarantees to operate our
program over and above that $103,000. This figure of $120
approximately represents what the county plus the state
fund a.
Q (By Mr, Davis) Represents the total?
Testimony of Frank E. Irwin 2li|.
Testimony of Prank St Irwin 215
A The total amount,
Q, Is that right?
A The state funds out of there would be approximately
three-fourths of that total amount,
Q, Of that amount?
A Yes,
Q, In relation to our colored high school students,
how much does the county and state spend per student?
A About $.325 a year per capita at the present time,
THE COURTS Is that on the high school students?
THE WITHESSs That is on the colored high school
students. About, It is costing us about $325 per student,
Q, (By Mr, Davis) And the colored children are then,
in your opinion, getting superior education, is that true?
A In my opinion they are,
Q Mr, Irwin, do you know how many teachers there
are at Clinton High School?
A 22 and one-half,
Q 22 and one-half teachers?
A 22 and one-half positions,
Q What is the half? Is that the principal?
A We share the music teacher with the city schools,
on a, half time basis,
(Q You have 22 full time teachers and one part time? is
that correct?
Testimony of Prank E* Irwin 2 16
A That's right*
Q, Are all of those teachers college graduates?
A Yes*
Q, Do you know how many of those teachers have masters
degrees?
A 1 can think of six right off that have masters
degrees, and probably some more* I can't; remember exactly,
we have so many teachers*
Q Bo you know anything about the number of teachers
at Austin High School or their qualifications?
A Mo, sir, 1 don't, but as I stated a moment ago,
Mr* Davis, to be a member of the Southern Association they
must have a higher percentage*
MR* DAVTSs We have the witness that can prove
that, your Honor*
THE WITMESSs Yes*
THE COURT? All right*
MR* LEWALLEMs We want to reserve the right to call
Mr* Irwin back*
THE COURTS You may do so*
MR* LOOBYs If your Honor please, this witness has
been asked a number of questions with respect to the func
tion of the Board that really has to do with the state law*
I think it is Chapter 375, Private Acts of 1939*
Instead of wasting time, I would like to assume that
Testimony of Frank E0 Irwin 21?
statute will be introduced, or is introduced and referred
to,
THE COURTS Yas, Yes® you will provide them with
the statute,
MR« LOOBY? I won’t examine as to that,
THE COURTS I think I am required to take judicial
notice of the statutes,
MR, LOOBY? Very well,
THE COURT? I am expecting the attorneys to point
them out to mes that is, those that they rely on,
MR, LOOBY? We will point it out in our brief. So
I won’t examine him on those questions which the defendant
has examined him on,
REDIRECT EXAMINATION
BY MR, LOOBY?
Q Mr, Irwin, you were talking about this Southern
Association of Secondary Schools and Colleges,
A Yes, sir,
'Q Are you familiar with that Association?
A Hot as much as I might be0
Q, I thought you weren’t, sir. Do you know that there is
an association for the white and one for the colored?
A I think they have division *■>«
Q. Yes, sir,
A «-* for the two.
Testimony of Frank E„ Irwin 218
Q, Do you know that in grading* that iss A* B* C grade*
so that you may b© a member and still not be an A grade
school?
A I did not know that applied*
Q, I see you didn't„
A Doesn't apply to white*
Q When you said that the fact that Austin is a member
would indicate that it is an A grade school* you really
didn't know anything about the Association to which you
refer on which you based your qpinion?
A I was basing my opinion on the requirements for
white high schools*
Q, You didn't know anything about the requirements
for colored high schools?
A 1 am afraid not too much*
Q How many students are there in Austin High School?
A I can't answer that*
Q So that you don't know whether the plant or the
facilities there are adequate for the number of students
that they have* do you?
A I stated merely on a comparative basis that from my
observation they weren't as crowded as the high school at
Clinton*
Q What observations were they* Mr* Irwin?
A In observing their changing periods or classes and
Testimony of Prank E, Irwin 219
in the class rooms if self.
Q, And when did you go there and how long did you
stay* Mr. Irwin?
A I stayed approximately one hour,
Q And when did you? When was that?
A I dldnst make note of the date.
Q About how long ago?
A That was about three weeks ago, I suppose.
Q That is in preparation for this trial?
A Well, I ean!t say that it was in preparation for the
trial,
Q How long have you been in the field of education,
Mr, Irwin?
A 20 years.
Q And with the 20 years experience, are you willing
to come to this Court and to testify as to what the stand
ing of an institution of learning is after a one-hour visit?
A I am merely giving my opinion, sir.
Q And that is based upon that one-hour visit?
A That is based upon — I was not trying to give an
expert opinion of the school, I was merely making the
comparison between my observation in that school and my
observation in Clinton High School,
Q With Clinton High School, as superintendent you have
had adequate opportunities to observe and compare aid to
Testimony of Prank E, Irwin 220
know what work they do there, haven’t you?
A I wouldn’t say that I have had adequate opportunity,
I have availed myself of what opportunities that I have had,
Q I will ask you have you had adequate opportunities
to evaluate the work done at Clinton?
A Hoj, sir^ I haven’t had adequate opportunity to
spend the time in Clinton High School that I would like to
have had,
Q Mr„ Irwin^ you are superintendent of the school?
Your office is located in that town and you have been in
that office for three years* and you haven’t had adequate
opportunity to evaluate that school, and yet you can go
to Austin for one hour and evaluate it?
A I did not evaluate Austin* sir, I was merely com
paring the two,
Q I am asking you as an educator do you think you have
had enough information to make an accurate comparison be
tween the two?
A In evaluation* to a great extent I feel is a matter
of personal opinion on the part of anyone who is doing the
evaluating,
Q With or without facts?
A I can’t answer that question,
MR, DAVIS s It is argumentative, Mr, Irwin stated
how long he was there
Testimony of Prank E, Irwin 221
THE COURTS This is cross examination, I will let
M m answer,
THE WITNESS% May I answer yes or no?
THE COURTS Yon may make any explanation yo u desire
to make,
A Will you state specifically your question again?
We g o t lost in this maze,
MR, LOOBYs I prefer to let the reporter read it,
please,
(The last two questions were read by the reporter,)
A I believe that I had ample time to arrive at the
conclusions that I have stated,
Q, (By Mr, Looby) I am not asking about the time, I
am asking about the facts that you had on which to arrive
at that opinion,
A I can't positively say that I could express a true
fact about any phase of education,
Q Mr, Irwin, you say that it cost about how much to
educate a white student at Clinton High School?
A Our cost in Anderson County for a white child is
approximately $120, Now that is a variable amount, too,
because your school population, it will go up and down. And
on the basis of today, that might vary a little from that
figure. But at the end of the year, it might vary some
more. The same way with the colored children.
Testimony of Prank E, Irwin 222
Q, We know that isn’t static or accurate. We know
you are just making an approximation. But you say it
cost approximately #120?
A Yes,
Q To educate a white student and that in Clinton High
School?
A That is maintenance and operation,
Q That is in the Clinton High School?
A That is in Clinton High School,
Q, Approximately what does it cost to educate a colored
student sending him to Knoxville?
A It is costing Anderson County approximately, I
believe, about #325>, to support one of the colored children,
Q Mr, Irwin, why do you spend #32f? to send a student
to Knoxville when you can educate him right at home for
#120?
A To give him equal opportunities,
Q If you kept him at home, he could have equal oppor
tunities, wouldn’t he?
A Ho, sir, not equal with Austin High School on the
basis of the curriculum,
Q, In other words, you are sending him because he gets
a better education here?
A Well, I can’t say that we are doing that, but I am
saying that I think I could answer that that we are giving
M m an opportunity that w® can’t give him in Anderson County,
Q You say that they are sending him to Knoxville
instead of educating him at Clinton,, that he gets a better
education?
A He has an opportunity for a better education,
Q, Way don’t you send the white students to Knoxville
so that they can get a better education?
A We haven’t had any request,
Q, So that the reason then you send them to Knoxville
is because there are requests?
A Yes, sir. If a white child requested to come to
Austin High School;, w® would try to send him
Q Are you serious about that?
A I am serious about that. If a white child wanted
to enter Austin High Schools we would have no objection
on our part in Anderson County,
Q All right. If a colored child makes a request to
go to Clinton High School, would you have any objection?
A We couldn’t because w® operate as an agency of the
state. If we sent a whit® child to Austin, it would put
the burden on the Knoxville officials,
Q In other words, you don’t mind shifting the burden
to somebody else?
A Personally, I don’t,
MR, LOOBYs All right, that’s all,
(Witness excused,)
Testimony of Prank S, Irwin 223
Proceedings 22k
MR. LOOBY§ We have some witnesses, your Honor,
that are cumulative,, The witness that we will contemplate
putting on now would testify as to the occurrence at the
principal's office when they went In, I don't think there
is much question as to that,
MR, DAVXSg 1 don't think there is any question
about it,
THE COURTS There should not be as to that,
MR, LOOBY'S Let the record show that Mrs, Mary
Dickie =■=
MR. DAVXSg I might not stipulate anything,but both
sides
MR, LOOBY? I am not asking for stipulation, I want
the record to show that Mrs, Mary Dickie, if called as a
witness, would testify substantially as testified by Mrs.
Allen MeSwain, and she is a party to the suit, that she
did come into the principal's office and testify. We can
put her on if the defendants want us to. But that is what
she will testify.
THE COURTS Can't you agree?
MR. GlLBERTSOHs That is satisfactory with us, your
Honor. She can testify the same.
THE COURT? Let the record show that the defendants
agree that she would testify substantially the same,
MR0 LOOBYt And she would also testify as to the
Proceedings 225
inconvenience of her children having to get up early in
the mornings the same as irs0 MeSwain's get up early in
the morning to catch the bus.
THE COURT § Can't you agree she would testify the
same f
MR. GILBERTSOHs Your Honor,, I think that is imma-
terialp as a matter of fact. W© will agree that she would
testify substantially the same.
THE COURTg All right.
MR. LOOBYg That is all that 1 am asking.
THE COURT g All right.
MR. LOOBYg As to the weight is another proposition.
If your Honor will just allow me a minute to talk
to counsels because there is another matter„
THE COURT g Yes.
MR. LOOBYg I think we will accept the agreement
so far as to she testified substantially what Mrs. MeSwain
said with respect
conferences.
t© the inconvenience as well as the
THE COURTg All right. Can you tell me about how
long it will take you to complete your case?
MR. LOOBY? About 1|5 minuteas if your Honor please.
THE COURT? Gentlemen,, how long do you think it will
take you to put on your ease?
MR. DAVISg 1 wouldn't want to say an hour and be
Proceedings 226
here three days* 'but I think by Friday noon or something
like that we ought to b@ through.
THE COURTS Friday noon?
MR. DAYJSg This is Thursday?
THE COURTS This is Wednesday„
MR„ DAVIS? It will take a bit of time, your Honor.
We have several witnesses. In other words, we won't go over.
THE COURTS In the meantime, go over this testimony
carefully among yourselves, and weed out and only give me
the testimony that is material to these issues. Let's get
it in compact form. Let us not scatter our shots. I
cannot conceive of taking until Friday to put on your
testimony, but you know more about it than I do.
MR. DAYIS? It won't go beyond what 1 have said.
I don't want to give you a little bit of time and go over
myself. I would rather come a lot under.
MR. LOOBY? If your Honor please, we had some members
of the county school board subpoenaed. We will excuse them.
If they are here, w© may call them. If not, they may be
excused.
THE COURT8 Is that agreeable?
MR. DAYIS? They are defendants, your Honor. We will
talk to them about it.
THE COURTS So far as you are concerned ■=*»
MR. LOOBY? So far as we ar© concerned
Proceedings 227
THE COURTS “•= they may be excused?
IR0 LOOBY g I am not insisting that they be here.
THE COURTg
morning„
Adjourn court until 9 o'clock tomorrow
(llaereuponj, at 4 0 0 o'clock p 0m„, court was adjourned
until February llj., 19 52s at 9^00 o'clock a.m»)