Goss v. Knoxville, TN Board of Education Brief of the Respondent Board of Education and the Individual Respondents
Public Court Documents
January 1, 1962

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Brief Collection, LDF Court Filings. Goss v. Knoxville, TN Board of Education Brief of the Respondent Board of Education and the Individual Respondents, 1962. 1708b0fc-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/384eb0b9-4881-441c-9031-f6cbe3ccc1f0/goss-v-knoxville-tn-board-of-education-brief-of-the-respondent-board-of-education-and-the-individual-respondents. Accessed July 06, 2025.
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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. — 2 — 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). — 4 — ---- 0 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. — 6 —