Calhoun v. Latimer Brief for Respondents

    I n  t h e

Supreme Court of the United States
October Term, 1963 

No. 623

Fred S. Calhoun, et al.,
Petitioners,

A. C, Latimer, et al.,
Respondents.

On Writ of Certiorari to the United States Court of 
Appeals for the Fifth Circuit.

BRIEF FOR RESPONDENTS

A. C. Latimer,
Attorney for Atlanta 
Board of Education 
1205 Healey Building 
Atlanta, Georgia

Newell Edenfield 
Of Counsel
310 Fulton Federal Building 
Atlanta, Georgia

Attorneys for Respondents



INDEX
Page

Questions Presented__________ _________________ 1
Statement _________________      2
Argument ______      10

The Plan Will Achieve Complete Desegregation__ 10
No Case Has Been Made for Acceleration

of the Atlanta P la n ________ ____ ___________ 15
It Was a Proper Exercise of Discretion to 

Delay Consideration of Faculty and 
Staff Re-assignments ________ _ . _______24

Conclusion _,______,________________________ 26

TABLE OF CASES
Boson v. Rippy, 285 F. 2d 43 (C.A. 5th, 1960)____17
Brown v. Board of Education of Topeka,

347 U.S. 483, 74 S. Ct. 686,
98 L. Ed. 873 (1954) ____________________ 3,24

Brown v. Board of Education of Topeka,
349 U.S. 294, 75 S. Ct. 753,
99 L. Ed. 1083 (1955) ____________________ 15

Brown Shoe Company v. United States,
370 U.S. 294, 8 L. Ed. 2d 510,
82 S. Ct. 1502 (1962) __________________ 12, 13

Bush v. Orleans Parish School Board,
308 F. 2d 491 (C.A. 5th, 1962)_________ ____ 17

Calhoun v. Latimer, 217 F. Supp. 614, 7 Race Rel.
L. Rep. 1054 (N.D. Ga., 1962)_____________ 20

l



TABLE OF CASES (Continued)
Page

Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401,
3 L. Ed. 2d 19 (1958)______________________  2

Davis v. Board of School Commissioners of 
Mobile County, Alabama, 318 F. 2d 63 
(C.A. 5th, 1963) ___ ________________________ 17

Evans v. Ennis, 281 F. 2d 385 (C.A. 3d, 1960)_____23
Goss v. Board of Education of City of Knoxville,

373 U.S. 683, 10 L. Ed. 2d 632,
83 S. Ct. 1405 (1963) ___________________ 4, 16

Kelley v. Board of Education of City of Nashville,
270 F. 2d 209 (C.A. 6th, 1959) _____________ 16

Shuttlesworth v. Birmingham Board of Education,
162 F. Supp. 372 (1958)_________________

Shuttlesworth v. Birmingham Board of Education,
358 U.S. 101, 3 L. Ed. 2d 145,
79 S. Ct. 221 (1958) ___ ________________

Stell v. Savannah-Chatham County Board of
Education, 318 F. 2d 425 (C.A. 5th, 1963)___18, 19

Stone v. Members of the Board of Education of
Atlanta, 309 F. 2d 638 (C.A. 5th, 1962)________21

Watson v. Board of Education of the City of 
Memphis, 373 U.S. 526, 10 L. Ed. 2d 529,
83 S. Ct. 1314 (1963) _________ _____________ 3

MISCELLANEOUS
Knowles, School Desegregation, 42 No. Car. L.

Rev. 67, 72, n. 2 7 _________________________  8

11

4

l i



In the

Supreme Court of the United States
October Term, 1963 

No. 623

Fred S. Calhoun, et ah,

A. C. Latimer, et al.,

Petitioners,

Respondents.

BRIEF FOR RESPONDENTS

Questions Presented
(a) Does a desegregation plan based on Shuttlesworth 

v. Birmingham, fairly applied, in which all criteria for 
transfer except proximity have subsequently been elimi­
nated satisfy Brown v. Board of Education?

(b) The United States District Court for the Northern 
District of Georgia, Atlanta Division, and the United 
States Court of Appeals for the Fifth Circuit have held 
that a grade-a-year desegregation plan, effective at the 
date of this brief for four (4) grades, proceeds at such 
speed as to achieve desegregation “at the earliest practi­
cable date.” Should that decision be reversed when there 
has not been presented to the court below any showing 
of a change in circumstances since the adoption of the 
plan to justify an acceleration of the plan?

1



2

(c) May the United States districts courts and courts 
of appeal reserve questions of faculty and staff re-as- 
signment for desegregation purposes until such time as 
a desegregation plan has made substantial progress in 
the desegregation of school children?

Statement
The history of this case has been fully outlined to 

this Court in the Petition for Certiorari, Brief in Op­
position to the Petition for Certiorari, and briefs filed 
by the petitioners and by the United States. We will 
not, therefore, reiterate it at this time, but will comment 
merely upon certain significant aspects of that history.

The suit was filed in 1958 and in normal course re­
sulted in a desegregation decree in 1959 and the sub­
mission of a desegregation plan. Because of widespread 
opposition to desegregation in the State of Georgia at 
that time there was on the statute books of the State 
legislation which would have required closing of the 
public school system of the City of Atlanta in the event 
of desegregation. A concerted campaign to change the 
sentiment in the State to permit desegregation of the 
Atlanta schools without disaster for public education in 
the City was undertaken by numerous citizens and or­
ganizations in Atlanta and environs, and in some cases 
outside the City. We are aware of the decision of this 
Court in Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 
3 L. Ed. 2d 19 (1958), and do not offer this public op­
position as justifying defiance of the decisions of this 
Court, either at that time or now. We simply say that it 
was a fact of life with which the district judge had to 
deal at the time. As a result, he permited the inclusion 
in the desegregation plan submitted by the defendants



3

of a provision malting the implementation of the plan 
contingent upon enactment of enabling legislation by the 
1960 Georgia Legislature. When no such legislation was 
enacted, the Court withheld implementation of the de­
segregation decree until September, 1961. At that time 
desegregation was to commence no matter what con­
sequences were to be visited upon Atlanta public edu­
cation by the Georgia Legislature. To make up for the 
year’s delay, the Court ordered that the grade-a-year plan 
be applied to two (2) grades in the first year of its 
operation.

Thus, desegregation of the Atlanta school system 
actually commenced in September of 1961. By that time, 
sufficient change in the sentiment of the people of the 
State had been brought about to enable the City of At­
lanta to handle this difficult time in accordance with its 
traditional spirit of tolerance and moderation. While 
this Court has pointed out in Watson v. Board of Educa­
tion of the City of Memphis, 373 U. S. 526, 10 L. Ed. 
2d 529, 83 S. Ct. 1314 (1963), that a considerable 
period of time has elapsed since Brown v. Board of Edu­
cation of Topeka, 3A1 U.S. 483, 74 S. Ct. 686, 98 L. 
Ed. 873 (1954), it is nevertheless true that the Atlanta 
plan has been in operation only since 1961. This late 
start is not attributable to any actions of the respondents 
or any other officials of the City of Atlanta. We do not 
claim that this fact provides the City with a cloak of 
protection for unconstitutional action nor that it justifies 
delays not otherwise warranted. Per contra, the delays 
that have occurred did not result from recalcitrance or 
bad faith of these respondents and do not justify im­
putations of any such conduct to them. Insofar as the 
comments of Mr. Justice Goldberg, in Watson, are based



4

upon inferences of this nature, they would not be ap­
plicable here. The progress under the Atlanta plan has, 
in fact, been quite remarkable and it is proceeding at an 
accelerating pace.

The desegregation plan originally submitted by the 
respondents was modelled upon the Birmingham plan 
approved in Shuttlesworth v. Birmingham Board of Edu­
cation, 358 U.S. 101, 3 L. Ed. 2d 145, 79 S. Ct. 221 
(1958), affirming 162 F. Supp. 372. The plan originally 
involved the use of some eighteen (18) criteria to be 
applied in the consideration of applications for transfer 
from one school to another. An essential feature of the 
plan was that it was a transfer plan; that is, it involved 
an acceptance of school assignments as they then existed 
as a base, with desegregation to be accomplished by 
transfers on application. With respect to children enter­
ing high school, this feature of the plan is scheduled for 
discard by the respondents as a result of the opinion of 
Judge Bell below. Petitioners themselves have pointed 
out that the use of a transfer system to effect desegrega­
tion continues in use in the Fourth Circuit, provided only 
that transfers be freely given.1

It would seem to us that such a transfer system is 
constitutionally valid if this Court is not to repudiate 
Shuttlesworth. Moreover, this Court pointed out only 
last year in Goss v. Board of Education of the City of 
Knoxville, 373 U.S. 683, 10 L. Ed. 2d 632, 83 S. Ct. 
1405 (1963):

“. . . we note that if the transfer provisions were 
made available to all students regardless of their 
race and regardless as well of the racial composition

JSee footnote 9 on page 11 of the Brief for Petitioners.



5

of the school to which he requested transfer we 
would have an entirely different case. Pupils could 
then at their option (or that of their parents) choose, 
entirely free of any imposed racial considerations, 
to remain in the school of their zone or transfer to 
another.”

The desegregation plan as filed and accepted by the 
District Court included numerous factors designed to 
assure that any person transferred from a segregated to 
a desegregated school would be able to achieve success 
in his new environment. To this end, personality inter­
views and special tests were used in evaluating applica­
tions for transfer. In the Court below Judge Bell pointed 
out (see footnote 2. in his opinion) that “such solicitude 
has rightly been condemned where applied only to Ne­
groes.” He also pointed out that “it would appear, where 
done in good faith, and there is no contrary contention 
here, to lend itself, at least in the early days of transition, 
to assuring the success of a plan.” In the first year of 
desegregation the result of this caution by the respond­
ents was that only ten (10) transfers were granted.

In the second year of the operation of the plan cer­
tain of the tests and interviews were abandoned by the 
respondents, without compulsion of court order, and a 
larger number of transfer applications were granted. It 
had been ascertained that special personality and intel­
ligence tests served no useful educational purpose, and 
they were discarded.

By fall of 1963, the respondents felt that the solici­
tude above-mentioned was no longer necessary. At that 
time there were on file a good many applications for 
transfer that had been previously rejected. Each ap­
plicant was summoned by school officials and asked if



6

he still wished to have his application considered. If 
the applicant replied that he did, the request for transfer 
was granted upon one condition. That condition was that 
the applicant reside nearer the school to which he sought 
transfer than to the school he was then attending. Every 
applicant who met this condition had his application 
granted.2
2 The conferences at which this occurred were reported in a letter 
from a school official to one of counsel for respondents:

Atlanta Public Schools 
Administration Building 

224 Central Avenue, S.W.
Atlanta 3, Georgia

Administrative Offices
December 6, 1963

Mr. A. C. Latimer 
1203 Healey Building 
Atlanta, Georgia 
Dear Mr. Latimer:

In response to your request for further information I am sup­
plying answers to specific questions as follows:
1. Upon what basis and authorization were Negro transfers al­

lowed in 1963?

2 .

3.

In June, 86 Negro pupils were authorized transfer on the 
basis of probability of succeeding academically and upon their 
proximity to the school requested. However, in August, 1963, 
the factor or criterion of “probability of academic success” 
was removed and all students desiring to continue their appli­
cation were transferred provided they lived closer to the pre­
dominantly white school requested. This new position was 
approved by the Board of Education on August 20, upon the 
recommendation of the Superintendent.
What were some comparisons in terms of number of transfers 
requested, number of transfers approved, and percentage of 
transfers approved in 1961, 1962, and 1963?

Number returning applications-. 
Number authorized to transfer-. 
Percentage

1961 
-135 
-  10
.- 07%

1962
263

40
15%

1963
191
119
62%

Of the number applying for transfer in 1961, 1962, and 1963, 
how many were denied admission who, in fact, lived closer
to the white schools requested than to the Negro schools in 
which they were currently enrolled?



7

Scheduled for the fall of 1964 is the next step, ordered
1961 1962 1963

Number applying_________________ 135 263 191
Number approved ______ 10 40 119
Lived closer to present school__
Lived closer to “white” school

____  90 72 29
____  35 151 43

Number denied living closer to 
“white ” school _________ ________  25 111 0*

*None denied who wished their application continued.
4. Are there instances or examples in which the Atlanta school 

system liberalized the Pupil Placement Plan or exceeded the 
tempo of desegregation prescribed by the plan, or otherwise 
demonstrated good faith in going beyond the minimum limits 
of the placement plan, in desegregation of the schools?

(a) At the outset only 3 of the 18 criteria were used because 
only 3 appeared to be practical and meaningful. In 1962, the 
only factors judged were “probability of academic success” 
and “proximity to the schools requested.” In 1963, no factor 
was used except that of “proximity to the school requested.”

(b) Students moving into the city requesting transfers to white 
schools on dates other than that specified by the pupil place­
ment plan were allowed to enroll in predominantly white 
schools. (Example: Paula Sherwood moved here from New 
York and requested to enter West Fulton and the request 
was granted.)
White students requesting transfer to Negro schools were 
approved. (Example: Charles Jerome Coleman to Washing­
ton.)

(c) Occasionally students are allowed to accelerate from the 7th 
to the 9th grade when these students are exceptionally bril­
liant. (Example: Michael Fears, a Negro student, was al­
lowed to skip the 8th and move directly from the 7th to the 
9th grade at predominantly white Fulton High School.)

(d) About 14 students were enrolled at Smith-Hughes, previously 
all white, last February without having to file application as 
prescribed in the Pupil Placement Plan.

(e) In the fall of 1963 all Negro applicants, qualifying for ad­
mission on the same basis as white, were admitted to Smith- 
Hughes Vocational School. The number enrolling is 334 
adult students.

I hope this information is what you requested.
Sincerely yours,
Rual W. Stephens 
Deputy Superintendent

RWS: ejh



8

by the Circuit Court. At that time the transfer feature 
of the desegregation plan begins to vanish as elementary 
students move into the high schools nearest their homes 
without application. Of course there will remain a trans­
fer provision authorizing applications for transfer on 
non-racial grounds. When the plan has reached the first 
grade it is to be assumed that initial assignments to the 
first grade will be made on a similarly acceptable basis. 
In the meantime it will also have passed from the higher 
grades.

Most cities that have adopted desegregation plans 
have provided for commencing with the first grade or 
kindergarten and working upward. The Atlanta plan 
started with the twelfth grade and is working its way 
down. There does not appear to be universal agreement 
as to which of these plans is better. While the first grade 
up method may minimize racial prejudice by accustom­
ing children to a desegregated situation in their earliest 
years, the top down system has the effect of assuring that 
all school children in the system when the plan goes into 
effect shall have an opportunity for desegregated educa­
tion during their years in school. That is, if the Atlanta 
plan remains in force in its present form, applying from 
the eighth through the twelfth grades in the fall of 1964, 
children now in the seventh grade will have five years 
of desegregated education, children now in the sixth 
grade will have six years of desegregated education, and 
so on. In this way there is not the possibility that a child 
will move along just ahead of desegregation as he might 
in a bottom up desegregation plan.8 3

3 The same point is made in Knowles, School Desegregation, 42 
No. Car. L. Rev. 67, 72, n. 27. “If a grade-a-year plan started at



9

Other advantages of the Atlanta type desegregation 
plan were derived from the more extended extra-cur­
ricular activities available in upper grades. As Judge 
Bell pointed out below:

“Negro students assigned to previously all white 
schools participated in both regular and extra-cur­
ricular activities, including honor banquets, clubs 
and other activities on the basis of free choice, and 
their parents attended Parent-Teacher Association 
meetings, athletic events, graduation programs and 
other school activities free of racial discrimination. 
School events to which the public is invited are not 
segregated, nor are meetings of professional com­
mittees.” (R 234)

Thus there are important advantages to be derived from 
a top down desegregation plan. The brief of the United 
States pointed out that there are disadvantages, too. We 
realize that that is true, but no implication that all the 
advantages are on one side is justified.

The District Court, in the exercise of its discretion, 
chose to postpone the consideration of faculty desegrega­
tion until further progress had been made in desegrega­
tion of students. (R 157). Nevertheless, there has oc­
curred some desegregation of faculty activities on the 
initiative of the respondents. (R 73).
grade twelve and worked down, it would allow every Negro child 
in the system an opportunity, albeit limited, for some desegregated 
education. On the other hand, if a grade-a-year plan started with 
the first grade, no Negro child in grades two through twelve 
would ever experience a desegregated education.”



10

A R G U M E N T
1. The Plan Will Achieve Complete 

Desegregation.

We understand the effect of the Brown decision to be 
as follows: After the transition period has ended, every 
child attending public schools in any city in the United 
States shall be assigned to school on the same basis as 
every other child in that city, without regard to race. If 
neighborhood housing patterns are such that the result 
is that many schools are attended predominantly by one 
race rather than another, this is a constitutionally per­
missible result.

The brief of the United States (p. 36) makes much 
of the fact that only some 150 Negro students are pres­
ently attending formerly all-white schools, and states: 
“Plainly that is no accident of geography.” Implicit in 
that sentence is the assumption that if it were an accident 
of geography it would be permissible.

At least in large part it is an accident of geography. 
The District Court, which sits in Atlanta and knows the 
facts, found that:

“The above result, [a small number of Negroes in 
formerly all-white schools] however, where it per­
tains, is not necessarily brought about on account 
of racial discrimination, but on account of geogra­
phy and residential patterns.”4

4R. 20. Further, the District Court and counsel for petitioners 
engaged in the following colloquy:

“Mrs. Motley: I think the nearness to the school is a pertinent 
consideration but I don’t see that in this plan.
The Court: Well, there’s nothing in there to negative that. Now 
would I not be compelled to take judicial cognizance of the 
fact that in Atlanta the—residentially speaking there are vast



11

In the light of this finding it is apparent that numerical 
comparisons like the one contained in the brief of the 
United States are actually meaningless and do not, stand­
ing alone, justify any inferences. The argument is glib, 
but it is not relevant.

Based on such numerical calculations which in turn 
are based on geography and upon the fact that the At­
lanta plan has not come to full fruition, opposing coun­
sel gratuitously assume that such plan will not result in 
complete desegregation; and worse, that it was not de­
signed to do so in the first place.

To this we must respond.
As previously stated the Atlanta plan is based almost 

verbatim upon the Alabama plan considered in Shuttles- 
worth v. Birmingham Board of Education, 162 F.Supp. 
372. It is significant, we think, that this is the only com­
prehensive plan of school desegregation which has ever 
been considered and held constitutional by this Court 
either “on its face” or otherwise. 358 U.S. 101.

Two Courts have held that the Atlanta plan is being 
fairly administered. Indeed, while the Motion for Further

white areas and colored areas and that in those areas the students 
are predominantly white and colored? That’s a fact, isn’t it?
Mrs. Motley: Yes, sir.
The Court: Well then would it not follow if you say that they 
shall stay in the schools in which they now are for the great 
part, you would still have primarily white in some and colored 
in others, isn’t that true?
Mrs. Motley: Yes, if the children are assigned on the basis 
of nearness to schools, you would still have many schools which 
are primarily white and which are primarily Negro.
The Court: Now in spite of all that you say that they should 
not be left prima facie where they are and then pertinent 
changes made. I don’t quite understand that,
Mrs. Motley: No, the objection which I have relates to the 
designation of certain schools as Negro and white__ ” (R 212).



12

Relief that gave rise, ultimately, to the Writ of Certiorari 
purported to challenge the administration of the plan, 
its real thrust was an attack upon the plan as a whole 
and on its face. It must have been the thought of peti­
tioners that Shuttlesworth precluded an undisguised at­
tack upon the plan as a whole. Even so, that is what 
the Motion for Further Relief was.

This fact is apparent from a consideration of the 
proceedings below, and the nature of the further relief 
sought. Though it was said that the attack was aimed at 
discriminatory application of the plan, no effort was 
made by petitioners to show even one instance in sup­
port of the charge. Petitioners asserted that they need 
not take cases of discrimination individually, and it may 
be that they are right. On the other hand, if the attack 
were on the application of the plan, surely it would have 
been necessary to make such an attack by means other 
than mere asseveration. Surely it would have been neces­
sary to show at least one instance, if not to show enough 
to make a pattern.

Further, the petitioners’ motion asked for faculty de­
segregation, not in the original plan, a timetable dif­
ferent from that in the plan, and a method of reassign­
ment of pupils not only not contemplated by the plan 
but explicitly rejected by the trial court. Moreover, 
petitioners attack, in this Court, the eighteen criteria for 
transfer that once were part of the plan but that were 
abandoned, along with the administrative machinery. It 
is clear then, is it not, that the actual thrust of petitioners’ 
motion was an attack on the plan as a whole, even though 
they had formerly approved it and moved its adoption.

Even though the usual notions of finality [Brown



13

Shoe Company v. United States, 370 U.S.294, 8 L.Ed.2d 
510, 82 S.Ct.1502 (1962)] which would seem to pre­
clude an attack by petitioners on the plan as a whole in 
view of their motion to adopt the plan (R. 38), and in 
view of their dismissal of their appeal (R. 173), may 
not be binding on these petitioners, still the history of 
the case shows that no bona fide attack is made upon the 
administration of the plan. And even if it were, two 
federal courts have ruled that administration has been 
fair and in good faith.

Thus, the actual question before the Court is simply 
this: Must Shuttlesworth be overruled? Or rather, that 
would be the question if Atlanta had not so substantially 
improved upon Shuttlesworth, along the lines suggested 
by Goss.

The alleged deficiencies of the plan, we submit, vanish 
if the plan is fairly considered from the standpoint of 
deliberateness as well as speed.

The basic assault on the plan by petitioners, for ex­
ample, is that it does not contain any provision for “in­
itial reassignment” of pupils but instead “freezes” peti­
tioners into an existing segregated system of assignments 
and places on them a burden, not shared by white stu­
dents, of getting out by transfer.

In the first place this precise argument was made in 
Shuttlesworth to no avail. See 162 F.Supp.at 375, note 
3(V) (3).

In the second place, if deliberation as well as speed 
is taken into account the plan does no such thing. More 
correctly, what it does is “freeze” reassignments, (sub­
ject to freely granted applications for transfer) for a



14

limited period of time, thus avoiding tire necessity of a 
chaotic reassignment of every student in every school at 
one time. This, plus the grade-a-year provision, con­
stitute the only elements of deliberation which the plan 
contains; elements which petitioners would sacrifice en­
tirely on the altar of speed.

That these provisions are merely transitory is well il­
lustrated by the posture of desegregation in Atlanta at the 
present time. Progressing downward a grade a year, the 
Atlanta plan has now reached the eighth grade; that is, 
the first year of high school. (The system of junior high 
schools is not employed.) Admittedly, in the three years 
it has been in operation students in the affected grades 
had to apply for transfers or be “frozen” in. The fact 
that those who did apply were fairly treated is, for the 
moment, beside the point. But consider what will happen 
under the plan in 1964 and all succeeding years. As every 
student then and thereafter finishes the seventh grade he 
will and must receive an “initial” assignment to a high 
school without regard to race. At that point and there­
after the “freezing in” of existing assignments is over; 
although, of course, there will still be transfers for legiti­
mate reasons not related to race.

In due course the plan will reach the first grade and 
initial assignments there will be made on the same basis. 
At this point, despite the protestations of petitioners, 
desegregation will be complete within the meaning of 
Brown.

In its brief the United States makes several sugges­
tions which it refers to as “obvious solutions.” It suggests, 
as such, an immediate reassignment of all students on 
the basis of proximity alone. Admittedly Atlanta has



15

recently resorted to proximity as a factor in making 
transfers;5 but for administrative reasons Atlanta has 
never used either inflexible zones or proximity as the 
sole criterion either at the first grade or the high school 
level. It does not want to resort solely to inflexible zones 
or proximity now; and if faced with a choice would 
probably prefer a system of complete freedom of choice6 
conditioned only upon availability of facilities, with re­
sort to proximity to settle priorities between two appli­
cants where facilities were available for only one. Such 
a choice, obviously, bears no relation to integration or 
segregation and would be consistent with either.

But these suggestions are beside the point. Atlanta 
has an “obvious solution.” Once it becomes clear that 
as the present plan progresses there will be initial assign­
ments, without regard to race — in short, once it appears 
that the freeze-in of existing assignments is purely tran­
sitory — petitioners’ argument that the Atlanta plan is 
inherently unfair is eliminated.

2. No Case Has Been Made for Acceleration 
of the Atlanta Plan.

This Court held in Brown v. Board of Education of 
Topeka, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 
(1955), and again in Cooper v. Aaron, supra, that the 
precise speed for the accomplishment of desegregation 
was a matter within the discretion of the lower federal 
courts. Emphasis was placed in those cases upon the 
extreme variations existing between different cities with

5 See note 2, p. 7, supra.
6Dr. Letson testified: “In fact, pupils—pupils from all over the 
city attend schools all over the city.” (R. 99).



16

regard to administrative and other problems involved in 
a transition from segregated to desegregated schools.

Two recent decisions of this Court have cast doubt 
upon the continuing validity of these previous rulings. 
As pointed out by petitioners and by the United States, 
this Court remarked in Watson v. City of Memphis, 
supra, and in Goss v. Board of Education of City of 
Knoxville, 373 U.S. 683, 10 L. Ed. 2d 632, 83 S. Ct. 
1405 (1963), upon the passage of time since the Brown 
cases. The language taken out of context has been 
pressed into service for the purpose of reversing the 
carefully considered decision in the second Brown case 
that while the rights of the petitioners are present rights, 
nevertheless, a degree of gradualism in implementing 
desegregation is sometimes necessary.

It is true that some lower courts have ordered speed- 
ups in desegregation plans proffered to them for ap­
proval. On the other hand, in the spirit of the second 
Brown case and Cooper v. Aaron, supra, this Court has 
never even considered such a question. The opportunity 
to do so has been presented on more than one occasion. 
One of the issues in the lower court in Cooper v. Aaron 
itself related to the alleged fact that desegregation was 
proceeding too slowly. However, this Court, even though 
a full dress opinion was written, had nothing to say on 
the matter of speed except to reiterate the earlier posi­
tion that it was a question peculiarly the concern of the 
lower federal courts.1 Again, Kelley v. Board of Educa­
tion of City of Nashville, 270 F. 2d 209 (C.A. 6th, 
1959), presented this Court with an opportunity to take 
away from the lower federal courts discretion over the 7
7Each of the lower courts in this case has passed upon the speed 
of the Atlanta plan and found it satisfactory. (R. 159, 243).



17

question, of speed of desegregation. The principal issue 
in the case was whether a twelve-year desegregation plan 
was too deliberate. The Court of Appeals for the Sixth 
Circuit ruled that this was a question for the discretion 
of the trial judge. This Court denied certiorari, 361 
U.S. 924, with the Chief Justice and Justices Douglas 
and Brennan of the opinion that the writ should be 
granted. They, however, wished to review another issue 
in the case. No member felt that this Court should take 
over the discretionary function of establishing the exact 
amount of permissible time for each city affected by 
the Brown cases.

Both petitioners and the United States as amicus 
curiae have pointed out that there are cases in which 
the district courts or courts of appeals have required 
speed-ups in desegregation plans. The United States 
Court of Appeals for the Fifth Circuit did so in Bush v. 
Orleans Parish School Board, 308 F. 2d 491 (C.A. 5th, 
1962). The Fifth Circuit has also urged haste in several 
cases, including Boson v. Rippy, 285 F. 2d 43 (C.A. 
5th, 1960), and Davis v. Board of School Commission­
ers of Mobile County, Alabama, 318 F. 2d 63 (C.A. 
5th, 1963). The Fifth Circuit is therefore fully cognizant 
of the fact that this Court’s requirement of all deliberate 
speed in the desegregation process includes emphasis 
upon speed as well as upon deliberateness.

This Court emphasized in Cooper v. Aaron, supra, 
that desegregation would be a process requiring different 
periods of time from one city to another and that this 
element of time was contingent upon many varying fac­
tors, including size of school systems, problems of crowd­
ing and shifting populations, and many other factors



18

more within the cognizance of the district courts and 
courts of appeals than of this Court.8

There would not seem to be occasion in this case for 
the Court to repudiate its holding in Cooper v. Aaron 
that the transition to desegregation should be supervised 
by the lower federal courts exercising the flexibility tra­
ditional to equity courts.

In the Mobile County case in 1963, the Fifth Circuit 
remarked sharply upon the fact that “the amount of 
time available for the transition from segregated to de­
segregated schools becomes more sharply limited with 
the passage of the years since the first and second Brown 
decisions.” (318 F. 2d at 64). On the same day the 
same Court prescribed a twelve-year plan in Stell v. 
Savannah-Chatham County Board of Education, 318
8The opinion of the District Court upon the petitioners’ Motion 
for Further Relief in 1960, stated:

“ (2) Throughout this litigation the Court has held to the opin­
ion that delay in ordering the entire elimination of segregation 
in the Atlanta Public Schools could be justified only in the event 
that bona fide efforts were being made to eliminate the same 
under a reasonable and gradual Plan. If no good faith efforts 
were to be made to that end nothing could be accomplished by 
delay.” (R. 49).
The order of the District Court on petitioners’ Motion for 

Further Relief in 1962 stated:
“When this Court approved the Plan on January 20, 1960 many 
local conditions mitigating against a more speedy transition 
were considered (see 188 F.S. 401), these factors included the 
following:

There were in Atlanta 116,000 pupils, of which approxi­
mately forty per cent, or some 46,400, were Negroes. There 
was a rapid influx of children of school age into the city and 
a shortage of some 580 class rooms, many classes then being 
held in Churches and other buildings, and many having doubfe 
sessions. Other problems confronted the School Board, caused 
by slum clearances and changes in residential patterns, to which 
may now be added complications arising out of large tracts of 
land being condemned for expressways.” (R. 159)



19

F. 2d 425 (C.A. 5th, 1963). (R. 242). Thus, there are 
still being adopted twelve-year plans beginning four 
years after Atlanta.

If this Court is not to reverse its previous decisions 
and declare that desegregation must take place imme­
diately in all places, then it would seem to us that it 
can scarcely undertake the task of making the delicate 
determination as to the precise speed of desegregation 
in every city, town and hamlet in the nation. In the 
nature of things, this Court cannot bring before it all the 
necessary information to make such decisions. It was in 
recognition of this fact that this Court in Brown, and 
again in Cooper v. Aaron explicitly delegated these 
questions to the lower federal courts. Also in recognition 
of this fact, this Court has steadily refused to consider 
such questions. Of course, this Court has the right and 
duty to supervise the lower federal courts in the exercise 
of their discretion. In this connection the Court pointed 
out in Brown and Cooper that the lower federal courts 
should exercise a continuing supervision over school 
officials so as to assure themselves that the school officials 
were acting in good faith to the end of accomplishing 
desegregation as expeditiously as possible. Good faith 
has been made the litmus paper for the transition to 
desegregation.

The two lower federal courts have explicitly held 
that the respondents are proceeding in good faith to 
carry out the desegregation plan submitted by them and 
approved by the District Court. The District Court 
stated as follows:

“The Plan heretofore approved by this Court, 
and now under attack, has been administered fairly



20

and in good faith by defendant Atlanta Board of 
Education, the local authorities have given utmost 
cooperation in maintaining law and order, and the 
number of students being transferred . . . from pre­
viously designated colored schools to previously des­
ignated white schools is increasing at an accelerated 
rate each year as the lower grades are reached. This 
Court feels that the public interests demand that the 
Plan now in operation be continued according to 
its terms and not be summarily displaced by the new 
Plan of Desegregation proposed by plaintiffs.” Cal­
houn v. Latimer, 217 F. Supp. 614, 7 Race Rel. 
L. Rep. 1054 (N.D. Ga., 1962). (R. 156, 159).

The Circuit Court (Judge Bell and Judge Lewis of 
the Ninth Circuit) concurred in this finding of good 
faith and emphasized the progress taking place in the 
Atlanta school system:

“In the meantime the Atlanta plan is working. 
Progress is the test, and the necessary transition 
is taking place. There has been no trouble. All re­
sponsible officials and many private citizens have 
cooperated to make it work, and to preserve public 
education.” (R. 245) (Emphasis supplied).

At the same time, Judge Bell made it clear that the 
Fifth Circuit would not be reluctant to carry out the 
duties delegated to it regarding supervision of the tran­
sition to desegregation:

“We do wish, however, to point out some fun­
damentals to be borne in mind in the future handling 
of this and like matters where an approved plan is 
in operation. Whether to effect a plan, to speed it 
up, or to otherwise modify it is in the first instance 
for the school board. This is likewise true as to 
problems arising in connection with the administra­
tion of a plan. The courts are ill equipped to run 
the schools. Litigants must not ignore school offi­



21

cials, and school officials must not abdicate their 
function to the courts. They, like the courts, are 
bound by the Constitution as interpreted by the 
Supreme Court, Cooper v. Aaron, supra. With these 
principles in mind, this record discloses no problem 
that could not be resolved between appellants and 
the school officials based on the judgment of the 
school officials as educators, with the application of 
wisdom, forebearance and mutual trust to the educa­
tional purpose of schools.” (R. 245).

It is quite clear that the Fifth Circuit has not been 
and will not be derelict in its duty in this regard and 
needs no instruction from this Court. It is pointed out 
by the petitioners that the Fifth Circuit has, when 
it considered it appropriate under the circumstances, 
required acceleration of desegregation plans. In Davis 
v. Board of School Commissioners of Mobile County, 
supra, the Fifth Circuit instructed the District Court to 
be about the business of desegregation and made it clear 
that if he continued to show himself reluctant, his dis­
cretion would be displaced by the Fifth Circuit.

In another instance, the Court of Appeals for the 
Fifth Circuit anticipated the ruling by this Court in Goss 
that transfers could not be granted to white children for 
the purpose of escaping a desegregated school. Stone v. 
Members of the Board of Education of Atlanta, 309 
F. 2d 638 (C.A. 5th, 1962).

While the good faith of the respondents has been 
noted by both the lower courts, including the dissenting 
judge in the Fifth Circuit, we would point out that those 
remarks were based upon a record including the earlier 
stages of the operation of the desegregation plan. Since 
that time, the respondents have voluntarily dispensed



22

with all criteria of the desegregation plan that could 
have about them even the suspicion that it was intended 
to use them for purposes of avoiding desegregation. As 
a result, in September of 1963, the plan, though it re­
mained a transfer plan, was based upon the one simple 
criterion of proximity of residence to school. Scheduled 
for discard in 1964 is the entire machinery of the original 
plan relating to the filing and processing of formal appli­
cations for transfer, including time and necessity of filing, 
the use of tests, and the necessity of pursuing the admin­
istrative remedies prescribed in the plan.

Curiously enough, the very good faith of the re­
spondents is now urged against them. It is said that, 
since Atlanta is handling the transition to desegregation 
in such a satisfactory way, it should be compelled to 
scrap the plan in operation and adopt a different one. 
There seems to be implicit in this, albeit turned on its 
head, the argument repudiated by this Court in Cooper 
v. Aaron, that disagreement or violent opposition to 
desegregation was a factor that could stay the imple­
mentation of the Brown decision. That is to say, peti­
tioners urge that since Atlanta is accepting the transition 
to desegregation peacefully and satisfactorily, the process 
should be speeded up. But Cooper v. Aaron made clear 
that desegregation could not be slowed down by violent 
opposition, and that seems to be merely another way of 
saying that it need not be speeded up because of peace­
ful acceptance.

The pace of desegregation was not dictated by con­
siderations of the sort just mentioned. Grade-a-year de­
segregation was dictated by the size of the school system 
and the attendant administrative problems. In this con­



23

nection we would ask the Court to compare Evans v. 
Ennis, 281 F. 2d 385 (C.A. 3d, 1960). In that case 
it was held that a twelve-year desegregation plan was 
too slow for the State of Delaware but it was pointed 
out that there were, in the entire state, only some 7,000 
Negro students and, calculating from the percentage of 
Negro students who had opted to go to white schools, 
the Court concluded that the number of transfers or 
reassignments to be accommodated amounted to some­
thing less than 200 school children. In reaching its deci­
sion the Court distinguished Kelley v. Board of Educa­
tion of City of Nashville, supra, on the basis of the size 
of the school system affected and particularly the ratio 
of Negro to white children. It was made very explicit, 
then, by the Third Circuit, that the size of the school 
system was a dominant consideration in the determina­
tion of the appropriate speed for desegregation.

The District Court and the Court of Appeals in this 
case have, in their discretion, determined that a twelve- 
year pace is an appropriate one for Atlanta. As we have 
seen, in so exercising their discretion, the lower courts 
were not motivated by any reluctance to achieve deseg­
regation, but acted with the principles enunciated by 
this Court in the Brown decisions, Cooper v. Aaron, 
Watson, and Goss in the forefront of their minds.

Only one thing has happened to suggest an accelera­
tion of the plan. That is the degree of acceptance of 
desegregation that has been shown by Atlantans and 
school officials. Cooper made clear that this is an irrele­
vancy.



24

3. It Was a Proper Exercise of Discretion to 
Delay Consideration of Faculty and 

Staff Re-assignments.

Brown v. Board of Education, 347 U.S. 483, 74 
S. Ct. 686, 98 L. Ed. 873 (1954), held that a policy 
of systematic segregation of school children was uncon­
stitutional; no explicit decision was made regarding as­
signment of teachers, or other school personnel. It was 
based upon the purported fact that separate schools are 
inherently unequal and that segregation in itself tends to 
have a psychological impact upon children in the mi­
nority group that is detrimental to their ability to learn. 
This decision was supported by the writings and findings 
of psychologists and sociologists, and the Court seemed 
to be stating what it considered to be true, as a matter 
of fact. No finding of fact has been made in this case or, 
so far as we are aware, any other, and no evidence was 
presented in this case, to support an allegation that any 
given method of assigning teachers, much less other 
school officials, has any known psychological impact 
upon the students. Therefore, it does not seem to us 
that Brown requires any action with regard to teacher 
assignment.

However, should Brown require such, we believe that 
the decision of the District Court postponing considera­
tion of this problem was justified. For several reasons, 
teacher assignment is a different problem from pupil 
assignment.

In the first place, teachers cannot simply be reassigned 
against their wishes, as pupils can, since teachers have 
the option to leave the school system, as pupils cannot. 
Teachers seek employment in the school system only if



25

that employment is attractive to them in various respects. 
The City of Atlanta is twenty miles, or so, across, and 
teachers, as much as any other persons, want their em­
ployment reasonably close to home. If we were to shuffle 
teacher assignments, we should surely lose a substantial 
part of our staff. It seems to us that the only system 
that can work for teacher assignment is a system of free 
choice, as we now have.

It also appears to us that a quota system for teachers 
would be contrary to the spirit of the equal protection 
clause. If the thrust of the Brown decision really is that 
a school with an 80% white enrollment and a 20% 
Negro enrollment must have 80% white teachers and 
20% Negro teachers, then the constitutional rights of 
teachers, and indeed the spirit of the Constitution itself, 
are surely sacrificed to the constitutional rights of the 
children to a desegregated education.

We cannot believe that Brown requires such a result. 
We also believe that this is an unreal issue before this 
Court. If, after desegregation of the school system is 
accomplished, there should be a given school with 80% 
white enrollment and 20% Negro enrollment, this will 
presumably be because the neighborhood served by the 
school has that racial composition. It would likely be 
that among the Negroes there would be teachers desiring 
assignment to that particular school. There would be no 
reason for the respondents to deny them such an assign­
ment and it would be done. That is a far cry, however, 
from what is urged upon this Court by the petitioners, 
who seem to contemplate a reshuffling of the school 
teachers against their wills under Court order at this 
time.



26

For these reasons the District Court and the Court 
of Appeals thought that it was appropriate that they 
delay consideration of the problem of teacher assign­
ment. We believe this was a proper exercise of their 
discretion.

CONCLUSION
Much of the formal record in this case is ancient 

history. This Court has said that district courts must 
supervise the progress of desegregation. There can be no 
perception of this movement if the seventeen criteria 
once part of the plan are viewed as though they were 
still present. Here is the progress:

In 1961 there were seventeen criteria used to test 
the application of a Negro to transfer to a white school. 
There were included special achievement and person­
ality tests. All but about three of the criteria proved 
useless and were discarded even in the first year.

In 1962 the special tests were voluntarily dropped.
In 1963 all criteria except proximity of residence to 

school were dropped, but applications for transfer were 
still necessary.

In September, 1964 the feeder system takes hold. 
Then even applications for transfer are no longer neces­
sary for the eighth grade and initial assignments to high 
schools will be based upon geography alone.

As previously explained, the administrative machinery 
for screening applications for transfer has been scrapped, 
since the transfers are routinely granted.

This progress is not looked upon with favor by the 
petitioners and yet only five years ago Atlanta citizens’



27

groups were desperately trying to avoid the loss of public 
education, and three years ago the City made its first 
steps toward desegregation a source of pride to the 
entire country. We led the way that other cities in the 
south have followed. A page of history is worth a volume 
of logic; part of Atlanta’s history includes this commen­
dation from the late President of the United States:

August 31, 1961 
Atlanta Constitution

“Kennedy’s 
Praise for 
Atlantans

Constitution Washington Bureau
Here is the text of President John F. Kennedy’s com­

ment during his press conference Wednesday relating to 
the integration of Atlanta’s schools:

“I have several announcements to make.
“First, I want to take this opportunity to con­

gratulate Governor Vandiver, Mayor Hartsfield of 
Atlanta, Chief of Police Jenkins, Superintendent of 
Schools Letson and all of the parents, students and 
citizens of Atlanta, Georgia, for the responsible, law 
abiding manner in which four high schools were 
desegregated today.

“This was the result of vigorous efforts for months 
by the officials of Atlanta and by groups of citizens 
throughout the community.

“Their efforts have borne fruit in the orderly 
manner in which the desegregation was carried out 
with dignity and without incident,” Kennedy con­
tinued.

“Too often in the past such steps have been 
marred by violence and disrespect for law.



28

“I strongly urge the officials and citizens of all 
communities which face this difficult transition in 
the coming weeks and months to look closely at 
what Atlanta has done and to meet their respon­
sibility, as the officials of Atlanta and Georgia have 
done, with courage, tolerance and, above all, with 
respect for the law.”

In the two and one-half years since that press confer­
ence a revolution in public education has been effected 
here. Two Courts have approved the progress made and 
have noted the accelerating pace imparted to it. Against 
that background petitioners say that we must scrap it 
all after less than three years. Surely there is no occasion 
for such a decision.

We respectfully submit that the decision of the court 
below should be affirmed.

Respectfully submitted,

A. C. Latimer, Attorney for 
Atlanta Board of Education

Newell Edenfield, 
Of Counsel