Goss v. Knoxville, TN Board of Education Brief of the Respondent Board of Education and the Individual Respondents

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1962.

No. 217.

JOSEPHINE GOSS, et al.,
Petitioners,

v.
THE BOARD OF EDUCATION OF THE CITY OF 

KNOXVILLE, TENNESSEE, et al.

On Writ of Certiorari to the United States Court of Appeals 
For the Sixth Circuit,

BRIEF
Of the Respondent Board of Education of the City of 

Knoxville, Tennessee, and the Individual 
Respondents in the Knoxville Case.

S. FRANK FOWLER,
Attorney for the Board of Education of' 

the City of Knoxville, Tennessee, and 
Associated Knoxville Respondents.

St . L ouis L aw  P rinting  Co.. I nc ., 415 N. Eighth Street. CEntral 1-4477.



INDEX.
Pa

Constitutional Provisions Involved .............................
Summary of Argument ...............................................
Argument ......................................................................

Citations.
Kelley v. Bd. of Ed. of the City of Nashville, 270 F. 2d

209 (6th Cir. 1959) ..................................................
McSwain v. Co. Bd. of Ed. of Anderson Co., 138 F. S. 

570 (U. S. C. E. D. Tenn 1956) .............................



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM. 1962,

No. 217.

JOSEPHINE GOSS, et a!.,
Petitioners,

v.

THE BOARD OF EDUCATION OF THE CITY OF 
KNOXVILLE, TENNESSEE, et ai.

On Writ of Certiorari to the United States Court of Appeals 
For the Sixth Circuit.

BR IEF
Of the Respondent Board of Education of the City of 

Knoxville, Tennessee, and the Individual 
Respondents in the Knoxville Case.

CONSTITUTIONAL PROVISIONS INVOLVED.

This case involves Sections 1 and 5 of the Fourteenth 
Amendment to the Constitution of the United States.



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SUMMARY OF ARGUMENT.

Local school boards are authorized to take into account 
transitional problems of pnblie- stemming from race.

The transfer plan in this case, as interpreted and upheld 
by the Court of Appeals, reflects the assumption that in 
Knoxville an application for transfer based upon race is 
actually based upon the existence of an educational detri­
ment or hardship due to race. The record tends to sup­
port this assumption.

Respondents believe it to be their duty, even if the chal­
lenged transfer provisions are disapproved, to grant trans­
fers supported by good cause even though due to racial 
considerations.



ARGUMENT.

We are in agreement with the United States as amicus 
curiae, in whose brief it is stated:

. . we fully recognize that in some communities, 
during the transitional period, measures for accom­
plishing desegregation may create individual educa­
tional problems, and that it is wise school administra­
tion to take such transitional problems of personal 
adjustment into account even when they originate in 
customs fixed by race.”

(Brief for the United States as amicus curiae, 25.) 
The petitioners agree (Petitioners’ Brief, 21-2).

Respondents also agree as stated in Brief for the United 
States at page 18 that the provisions of Paragraph 6 of 
the Knoxville desegregation plan which specify race as 
sufficient ground for transfer are under review here only 
as transition measures. As such they may be entitled to 
approval where not so entitled if under review as per­
manent rules, just as, for instance, the postponement of 
desegration in grades not yet reached in an approved step 
plan is valid.

Both the Honorable Robert L. Taylor, Judge of the Fed­
eral District Court at Knoxville, and the Knoxville School 
Board learned early that welfare of Negroes as well as 
whites could be seriously jeopardized by imposing the 
Brown decisions too speedily upon the community. The 
Clinton disorders (R. 48), occurring in a community only 
eighteen miles from Knoxville, which resulted from a 
direction by Judge Taylor1 to desegregate the high schools 
of Anderson County, Tennessee, were referred to in his

1 McSwain v. Co. Bd. of Ed. of Anderson Co., 138 F. S. 570 
(U. S. C. E. D. Tenn. 1956).



opinion as revealing “ pockets of hate and lawlessness” 
(R. 123) and giving him grave concern (R. 136). The 
wisdom and experience of the local authority should not 
be overriden in the name of equal treatment, when the 
feared result will be a worsened experience for both races, 
not only disruptive of education but creating and harden­
ing racial animosity and destroying racial tolerance, un­
derstanding and mutual trust now undisturbed in Knox­
ville for fifty years.

In Knoxville only in rare instances will white parents 
permit their children to go to predominantly Negro 
schools, and the majority of Negro parents won’t let their 
children go to predominantly white schools. Judicial com­
mands don’t change these attitudes. Forced compliance 
by either Negro or white would be normally regarded as 
harmful to the child. Overly rigorous enforcement of the 
Brown decision by the courts very likely will do more dam­
age than under-enforcement by school boards.

Proof will undoubtedly show that through the years the 
Knoxville Board as a matter of course has granted trans­
fers upon far less substantial grounds than the least of 
the frictions stemming from race.

AVhen the plan of desegregation was under study in the 
District courtroom the main controversy was whether the 
grade-a-vear feature wa,s justified. The transfer provisions 
were merely incidental; they were valid under the holding 
that the Kelley ease2 and the challenge to them received 
scant attention. The proof, however, which supports a 
gradual desegregation also tends to support the transfer 
provisions. Moreover, the very fact that an application 
for transfer is made upon the ground of race, is some in­
dication that actual prejudice to the pupil will follow if

2 Kelley v. Bd. of Ed. of the City of Nashville. 270 F. 2d 209 
(6th Cir. 1959).

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the transfer is denied. The application for transfer is 
tantamount to expression of the parents’ opinion that the 
child will be at a disadvantage if not transferred and, 
through experience, the Board is inclined to agree. In 
this state of the record the Court of Appeals in effect held 
that inasmuch as the transfer provisions could be prop­
erly applied, they were valid but the Board was admon­
ished not to use them as a means to perpetuate segrega­
tion (R. 162). We interpret this to prohibit transfers 
upon -a-:naked ground of race. The result was to uphold 
the transfer provisions with leave to the plaintiffs to show 
specific instances of abuse, mis-use or misapplication of 
the provisions by the Board. The transfer plan simply 
reminds the transfer officers that there is an assumption 
that requests for transfers based upon race are supported 
by actual good cause which stems from race. Respond­
ents submit that the validity of this assumption is sus­
tained by the common knowledge that practically every 
departure from the segregation that has heretofore always 
existed in schools in communities such as Knoxville will 
embarrass, harm, or otherwise handicap somebody.

If, however, this Honorable Court in the absence of 
more specific proof in support of these provisions, should 
disapprove them, this action should not be a bar to a 
subsequent application by respondents to revive these pro­
visions if proof then offered shows that they should be 
revived as a transition measure. During such period as 
they may be inoperative, and indeed as a permanent pol­
icy, the respondent Knoxville Board of Education feels 
that it will not be its duty to blind itself to such actual 
educational prejudice as may occur, whether to white or 
Negro pupils, due to inability to adjust or to be accepted 
by fellow pupils or other handicap. In such cases, the 
Board of Education will grant application for transfers 
where it is reasonable to expect that the applicants therebv 
will be helped in obtaining an education, and the Board



will do so even though the pupils’ handicap is attributable 
to his race. This is but part of respondents’ objective of 
providing as good an education for each child of Knox­
ville as they can. So far, they have preserved undis­
turbed classrooms and have worked out a genuine ac­
ceptance of children of both races in the same classrooms 
of the first four grades.

At this time the Knoxville School Board is of the opin­
ion that it will be practicable, although it will make their 
duties more difficult, to delete from its plan Paragraph 6, 
which is the one here attacked, and utilize Paragraph 5 
of this plan, which broadly authorizes transfer for “ good 
cause” (R. 31-2) to govern all cases, including those of 
handicap due to race. This will compel separate investiga­
tion of each application for transfer, necessitating employ­
ment of additional personnel and expense, but can be done 
in this community. Whether this is practicable in other 
southern cities with proportionately greater Negro popu­
lation is questionable. If not required of them, it should 
not be required of Knoxville. The retention of Paragraph 
6 will greatly ease the administrative job.

For the foregoing reasons, we respectfully submit that 
the transfer provisions of the Knoxville plan of desegre­
gation of the public schools should be approved and the 
judgment below affirmed.

S. FRANK FOWLER,
Attorney for the Board of Educa­

tion of the City of Knoxville, 
Tennessee, and Associated 
Knoxville Respondents.

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