Goss v. Knoxville, TN Board of Education Brief for Plaintiffs-Appellants

    No. 18,165

In t h e

Itttoit §tatrs (Umtrt a! Appeals
F ob t h e  S ix th  C ibchit

J o seph in e  G oss, et al.,
Plaintiffs-Appellants,

— v .—

T h e  B oaed of E ducation of t h e  
C ity  of K noxville, T en n essee ,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOB THE 
EASTERN DISTRICT OF TENNESSEE, NORTHERN DIVISION

BRIEF FOR PLAINTIFFS-APPELLANTS

J ack Greenberg
J ames M. N abrit, III
M ich a el  J .  H enry

10 Columbus Circle
New York, New York 10019

Carl A. C owan
2212 Vine Avenue, S.E. 
Knoxville, Tennessee 37915

A von N. W illiam s , J r.
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee 37201

Attorneys for Plaintiffs-Appellants
November 1967



1

Statement of Questions Involved

I.
Whether the Knoxville School System is completely 

desegregated, in spite of the fact that the Negro schools 
under dual operation remain identifiable as Negro schools 
and are attended almost exclusively by Negro students?

The district court answered this question “Yes” and 
plaintiffs-appellants contend the answer should have been 
“No.”

II.
Whether the Knoxville School System should have been 

ordered to pair identifiable Negro schools which could be 
paired, locate new construction to help eliminate identifiable 
Negro schools, and take other affirmative action to dis­
establish segregation ?

The district court answered this question “No” and 
plaintiffs-appellants contend the answer should have been 
“Yes.”



TABLE OF CONTENTS OF BRIEF

PAGE

Statement of Questions Involved ............................ Preface

Statement of Facts .......................................................  1
A. The General Effects of Segregation in Depriv­

ing Minority Group Members of Equal Educa­
tional Opportunity ............................................  5

B. Policies of the Knoxville School System Per­
petuating Segregation of the Negro Schools .... 7

C. The Educational Expert’s Proposals for Par­
tial Remedies to Disestablish Segregation of
the Negro Schools ............................................  12

A r g u m e n t ...........................................................................................  16

I. The Knoxville School System Is Not Fully De­
segregated Because the Negro Schools Under Dual 
Operation Remain Identifiable as Negro Schools 
and Are Attended Almost Exclusively by Negro 
Students ..................................................................  16
A. The relief in a class action suit against segre­

gation must reach all members of the class.
B. Affirmative action must be undertaken by the 

school board to eradicate the vestiges of the 
dual school system and eliminate the effects of 
segregation.

C. The policies of the Knoxville school system 
have perpetuated segregation for the over­
whelming majority of Negro students.

II. The District Court Should Have Ordered the 
Knoxville School System to Pair Identifiable 
Negro Schools Which Could Be Paired, Locate



IV

New Construction to Help Eliminate Identifiable 
Negro Schools, and Take Other Affirmative Action 
to Disestablish Segregation ...................................  28
A. The test of the propriety of equitable relief is 

whether the required remedial action reason­
ably tends to dissipate the effects of the con­
demned actions and to prevent their continu­
ance.

B. The courts of appeals have specifically held 
that pairing of schools (the “Princeton plan”), 
locating new construction to disestablish seg­
regation, and the use of independent experts 
in educational administration to formulate rem­
edies are proper equitable relief for a previous 
policy of segregation.

PAGE

R elief 37



TABLE OF CONTENTS OF APPENDIX
PAGE

Docket Entries and Clerk’s Certificate of Record on 
Appeal ...................................................................... la

Knoxville Public School System’s Reply to Plaintiffs’ 
Interrogatory of March 1, 1967 .............................. 22a

Chart I—
Enrollment of Schools by Race, 1966-67 ..........  42a

Chart I l l -
Faculty Personnel by School and Race, 1966-67 48a 

Chart IV—
Administrative Personnel, 1966-67 .....................  56a

Chart V—
Reasons for Granting Student Transfers, 1966- 
67 .....   58a

Chart VII—
Special Transfers, Mountain View School........ 61a

Chart VIII—
Food Service Personnel by Race, 1966-67 .........  62a

Chart IX—
Maintenance and Operations Personnel by 
Race, 1966-67 .....................................................  63a

Plaintiffs’ Motion for Further Relief (filed May 8,
1967) .........................................................................  64a

Amendment to Plaintiffs’ Motion for Further Relief 
(filed May 25, 1967) .................................................. 72a

Motion of Defendants to Strike or Otherwise Dispose 
of Plaintiffs’ Motion for Further Relief (filed May 
9, 1967) .....................................................................  73a



V I

Transcript of Hearing of May 11, 15, 1967 .............. 74a
Dr. Morris Osbnrn, Plaintiffs’ Educational Ex­

pert ....................................................................  75a
Dr. Fred Bedelle, Jr., Director of Research, Knox­

ville Public School System ...............................  156a
Dr. Olin L. Adams, Jr., Superintendent of Schools, 

Knoxville Public School System ......................  293a
Rev. Frank R. Gordon, N.A.A.C.P. Chairman of 

Education ............................................................ 345a
Reporter’s Certificate ...........................................  353a

List of Exhibits filed at Hearing of May 11,15,1967 .... 354a

Memorandum Opinion of Robert L. Taylor, D.J. (filed 
June 7, 1967) ...................................   357a

Order of Robert L. Taylor, D.J. (filed June 7,1967) .... 390a

PAGE



V II

PAGE

T able oe Cases

Board of Education of Oklahoma City Public Schools 
v. Dowell, 375 F.2d 158 (10th Cir. 1967), cert, den.,
387 U.S. 931 ......................................................... 24, 33, 37

Board of Public Instruction of Duval County, Fla. v.
Braxton, 326 F.2d 616 (5th Cir. 1964) .....................  34

Bradley v. School Board of Richmond, Va., 382 U.S.
103 (1965) ..................................................................  20

Brown v. Board of Education, 347 U.S. 483 (1954) ....21,22,
26

Brown v. Board of Education, 349 U.S. 294 (1955) ....31,33

Dowell v. School Board of Oklahoma City, 219 F. Supp.
427 (W.D. Okla. 1963) ..............................................  24

Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1965) .......................................24, 33, 37

Goss v. Board of Education of Knoxville, Tenn., 373 
U.S. 683 (1963) ......................................................... 20

Hobson v. Hansen, 269 F. Supp. 401 (D.C. 1967) ......  35

Kelley v. Altheimer, Ark. Public School Dist. No. 22,
378 F.2d 483 (8th Cir. 1967) ........................ 23, 24, 34, 37

Louisiana v. United States, 380 U.S. 145 (1965) ........  32

Reynolds v. Sims, 377 U.S. 533 (1964) ........................  32
Rogers v. Paul, 382 U.S. 198 (1965) ............................  20

Schine Chain Theatres v. United States, 334 U.S. 110 
(1948) .........................................................................  32

United States v. Jefferson County Board of Education 
et al., 372 F.2d 836 (5th Cir. 1966); reaffirmed en 
banc, 380 F.2d 385 (5th Cir. 1967) ...... 20,24, 33, 34, 36, 37

United States v. Standard Oil Co., 221 U.S. 1 (1910).... 32



YU1

PAGE

Wheeler v. Durham City (N. Car.) Board of Education,
346 F.2d 768 (4th Cir. 1965) ....................................... 34

Wright v. County School Board of Greensville County,
Va., 252 F. Supp. 378 (E.D. Va. 1966) ........... .......... 34

Other Authorities
Report of the United States Commission on Civil 

Rights, “Racial Isolation in the Public Schools,”
Vol. I (1967) ............................................................. 31

United States Office of Education Survey, “Equality 
of Educational Opportunity” ...................................  5, 6



In t h e

Inttpft §5>M?b (Emuri of Appeals
F oe t h e  S ixth  C ircuit 

No. 18,165

J o seph in e  Goss, et al.,
Plaintiff s-Appellants,

T h e  B oard op E ducation op th e  
C ity  op K noxville, T en n essee ,

Defendant-Appellee.

appeal prom th e  united  states district court for th e
EASTERN DISTRICT OP TENNESSEE, NORTHERN DIVISION

BRIEF FOR PLAINTIFFS-APPELLANTS

Statement of Facts

This class action was originally filed December 11, 1959 
by Negro students against the Board of Education of the 
City of Knoxville. The complaint, asserting rights secured 
by the Fourteenth Amendment to the United States Con­
stitution, sought injunctive relief under 42 U.S.C. §1983 
against the continued operation of a compulsory segre­
gated school system, and requiring the Board to develop 
and implement a plan for complete re-organization of the 
dual schools into a unitary non-racial system. The case 
has since had a long history involving several plans sub­
mitted by the Board, district court hearings, modifications, 
approvals, and appeals, all of which are detailed in the



2

district court’s memorandum opinion of June 7, 1967 
(357a-390a) which is the subject of this appeal.

The current phase of the case arises out of plaintiffs’ 
objections to the Board’s purported plan of complete deseg­
regation first filed in 1964 and subsequently amended, the 
basic provisions of which provided:

“1. Effective with the beginning of the school year 
in September, 1964, all racially discriminatory prac­
tices in all grades, programs and facilities of the 
Knoxville Public School System shall be eliminated 
and abolished. Without limiting the generality and 
effectiveness of the foregoing, all teachers, principals 
and other school personnel shall be employed by defen­
dants and assigned or re-assigned to schools on the 
basis of educational need and other academic considera­
tions, and without regard to race or color of the per­
sons to be assigned, and without regard to the race or 
color of the children attending the particular school or 
class within a school to which the person is to be as­
signed. . . .

“2. Each student will be assigned to the school 
designated for the district in which he or she legally 
resides, subject to variations due to overcrowding and 
and other transfers for cause, and the Superintendent 
may permit continued enrollment of students in their 
present schools until completion of the grade require­
ments for said school, provided this is consistent with 
sound school administrative policy.

“3. A plan of school districting based upon the loca­
tion and capacity (size) of school buildings and the 
latest enrollment studies will be followed subject to 
modifications from time to time as required.



3

“4. Upon written application, students may be per­
mitted to transfer to schools outside their assigned 
attendance zones only in exceptional cases for objec­
tive administrative reasons and no transfers shall be 
granted, denied or required because of race or 
color. . . (370a-371a) [amended version as filed
August 6, 1965].

Plaintiffs had filed objections to paragraphs 2, 3, and 4 
of the original version of the above amended “final” plan 
of desegregation on February 23, 1965 (368a). These were 
preserved during subsequent pre-trial conferences while 
the parties attempted to negotiate their differences. At the 
time of the final pre-trial conference on March 10, 1967, 
the district court states: “Plaintiffs stated that a hearing 
should be held on the question whether the plan had in its 
operation been effective in eliminating discrimination in 
the school system in compliance with the constitutional re­
quirement” (372a).

In an order of July 30, 1965 following a pre-trial con­
ference, the district court stated that the plaintiffs attacked 
a Board of Education policy statement of April 19, 1965 
“in which the Board of Education set out a Plan for per­
missive continued enrollment of pupils in the year 1965-66 
and thereafter in the schools attended in the previous year. 
This remains as an unresolved issue in this case” (369a). 
(emphasis supplied). The district court subsequently stated 
in its memorandum opinion of June 7, 1967 dismissing the 
case that “thus, as shown by the foregoing order which 
was approved by the attorneys for the respective parties, 
the unresolved issue in the case was the validity of the 
[above “grade requirement” transfer provision]” (370a). 
(emphasis supplied).



4

The district court entered a pre-trial order after the 
final pre-trial conference of March 10, 1967, in which it 
limited the issues to whether (1) the “grade requirement” 
transfer provision and (2) the “brother-sister” transfer 
provision perpetuated segregation and therefore violated 
the Fourteenth Amendment (372a-373a). Plaintiffs sought 
to have the pre-trial order amended to include the following 
issues:

(3) Whether or not the Knoxville Public School Sys­
tem is effectively desegregated in compliance with the 
Fourteenth Amendment to the Constitution of the 
United States in relation to 1) Pupil Assignment, 2) 
Faculty, 3) Administrative Staff and Clerks, 4) Prin­
cipals, 5) Maintenance and Operations Personnel, 6) 
School Programming, 7) Organization and Curriculum, 
8) Extra-Curricular Activities, 9) Facilities and New 
Construction, and 10) School Boundaries or Zone Lines 
(373a).

The district court denied plaintiffs’ proposed amendment, in 
spite of their compliance with his request to furnish cita­
tions of authority pointing out cases in which courts had 
dealt with such matters, and plaintiffs excepted to the 
denial (373a).

Plaintiffs then filed a motion for further relief (64a-72a) 
in which they alleged generally that the zoning, transfer, 
curriculum, building location, new construction, faculty as­
signment, and other staffing policies of the school system 
were perpetuating segregation, and sought to have the 
board ordered to undertake an affirmative program to dis­
establish segregation through the use of properly designed 
student assignment, curriculum, new construction, and 
faculty and other staff assignment policies. They also 
sought an injunction against the planned new construction



5

of comprehensive junior and senior high schools in outlying 
all-white areas of the city pending the adoption of such 
an affirmative plan to disestablish segregation (72a).

A full evidentiary hearing was finally held before the 
district court on May 11 and 15, 1967, in which the parties 
were permitted to introduce proof relating to every phase 
of the operation of the school system, as indicated by the 
record and the district court’s discussion in its memoran­
dum opinion (375a-389a). The district court then denied 
all of plaintiffs’ objections to the present operation of the 
school system and the injunction against new construction, 
refused to order the adoption of any affirmative action 
purposed to disestablish the remaining segregation in the 
system, and dismissed the case on the basis that the system 
was completely desegregated and court supervision was 
therefore no longer required (388a-390a).

A. The General Effects of Segregation in Depriving M inority 
Group M embers of Equal Educational O pportunity.

Plaintiffs offered the testimony of Dr. Morris Osburn, 
Director of the Human Belations Center for Education at 
’Western Kentucky University in Bowling Green, Kentucky, 
who qualified as an expert in the field of public education 
(75a-78a). Dr. Osburn had conducted a study of the Knox­
ville public school system relating to the problem of de­
segregation (79a-80a), based both on field investigation, 
and on extensive data furnished by the Superintendent of 
Schools, which was also entered in evidence in this case as 
Exhibits 1-36 (see list, 354a-356a).

As a preliminary to his analysis of the Knoxville school 
system in particular, Dr. Osburn referred to the report 
authorized by the Congress in the Civil Eights Act of 1964 
to be made by the United States Commissioner of Educa­
tion entitled “Equality of Educational Opportunity” (also



6

known as the Coleman Report). He pointed out that the 
fundamental finding of this comprehensive study was “that 
children that are attending racially isolated schools are 
attaining and achieving lower than children that are at­
tending desegregated schools, and that the compensatory 
program in these schools seemingly does not increase the 
rate of achievement” (85a). Other studies which have come 
to his attention also agree with the conclusion of the Cole­
man Report (84a).

Dr. Osburn explained that the reason for this effect of 
racial isolation of minority group members was that “the 
social environment seems to have the greatest effect on 
this individual and his rate of achievement” (86a). Thus, 
the basic defect of the educational situation of racial isola­
tion can be seen by comparison to the situation where there 
is interaction with children of other races and social classes 
rather than isolation, where “the low socio-economic child, 
and particularly the Negro child, as he interacts with the 
middle class child . . . becomes responsive, receptive, and 
takes on the behavior patterns of these children and the 
attitudes and the motivation to learn. . . .  It is the inter­
action of the peer group more than anything else that pro­
motes learning and learning promotes achievement” (86a). 
He also explained that although deprivation of equal edu­
cational opportunity of children through isolation in a 
homogeneous lower socio-economic group was not confined 
to Negroes, it was accentuated in the case of Negroes be­
cause of independent effects of racial isolation and because 
such a large proportion of Negroes were in the lower socio­
economic group (83a-88a).



7

B. Policies o f the K noxville School System  Perpetuating Segre­
gation of the Negro Schools.

Dr. Osburn stated that there is substantial evidence from 
general educational administration studies that the loca­
tion of schools itself influences the residential character of 
surrounding neighborhoods, and that the designation of 
particular schools as intended for Negroes or whites in­
creases residential segregation since Negroes and whites 
tend to locate their residences to be near their respective 
schools (105a). Additional factors to be considered with 
regard to zoning, Dr. Osburn pointed out, are that a large 
proportion of Negroes are in the lower socio-economic group 
and are therefore forced to cluster in areas of a city where 
inespensive housing is available, and that there remain 
considerable restrictions exercised by real estate brokers 
against permitting even Negroes who can so afford to move 
out of the particular areas of cities traditionally designated 
as Negro (105a-108a). Ee-zoning the public schools to dis­
establish segregation, he stated, would have to avoid rely­
ing upon the patterns of residential segregation contributed 
to by these factors (105a).

He concluded, however, that the Knoxville school system 
had relied upon these factors in developing its purported 
unitary zoning plan (105a-108a, 137a). After examination 
of zoning maps for the old dual zones of the Knoxville 
school system under segregated operation before 1960 (Ex­
hibits 37-38) with the zoning maps adopted in 1960 and 
since amended (Exhibits 39-42), he concluded that in most 
specific instances involving the schools formerly desig­
nated as Negro, the new zone lines under purported uni­
tary operation paralleled closely the old zone lines under 
segregated operation (93a, 96a, 98a, 102a-104a, 109a-112a, 
137a).

Dr. Osburn also analyzed the relationship of the Knox­
ville school system’s transfer policies to desegregation. He



8

pointed out that where all the schools in the system had 
previously been all-Negro or all-white in enrollment, the 
adoption of the “minority to majority” transfer provision 
as part of the initial desegregation plan helped perpetuate 
segregation, since students zoned to a school which had 
previously been identified as intended for members of the 
opposite race were thereby encouraged to transfer back to 
a school which was previously identified as intended for 
members of their own race. The effect of such transfers, 
particularly when combined with the continuation of zones 
drawn according to patterns of residential segregation, was 
to continue and reinforce the identification of the Negro 
schools as Negro schools since they continued to have all 
or virtually all-Negro student bodies (80a-84a, 98a-101a, 
136a-138a).

Even after the abandonment of the “minority to major­
ity” transfer provision following its invalidation by the 
Supreme Court in 1963, Dr. Osburn pointed out, the adop­
tion of the “grade requirement” and “brother-sister” trans­
fer provisions perpetuated its effects since these provisions 
permitted students who had previously transferred under 
the “minority to majority” transfer provision to remain in 
the school to which they had transferred, and permitted 
other members of the same family to transfer to that school 
also (80a-84a, 98a-101a, 136a-138a). During the 1966-67 
school year, approximately 3,400 out of a total enrollment 
of 37,428 students were granted transfers out of their zone 
of residence, 1,762 of which were “grade requirement” 
transfers (58a-60a).

The general effects of the Knoxville school system’s zon­
ing and transfer policies on the disestablishment of segre­
gation appear in the 1966-67 student enrollment figures for 
the schools which were designated as Negro under segre­
gated operation (42a-47a) :



9

School and grades Negro White
Cansler (1-6) 221 0
Eastport (1-6) 437 1
Green (1-6) 421 21
Maynard (1-6) 452 2
Mountain View (1-6) 325 0
Sam Hill (1-6) 498 0
Beardsley Jr. High (7-10) 471 6
Vine Jr. High (7-9) 619 1
Austin Sr. High (9-12v.) 432 1

The combination of zoning and school curriculum pro­
gramming in conjunction with patterns of residential seg­
regation and homogeneous lowTer socio-economic class 
concentrations particularly amounted to deprivation of 
equal educational opportunity in the case of Austin Senior 
High School, Dr. Osburn concluded. Austin High School 
was the only Negro high school under the old dual system, 
and became surrounded by the largest area of Negro resi­
dential concentration in Knoxville. After the start of de­
segregation, Austin was placed in a combined zone with 
East High School, which was on the fringe between Negro 
and white residential areas, and Austin was converted to 
an all-vocational terminal education program while East 
High School continued with a general and academic pro­
gram for college preparation. Since Austin was and con­
tinues as an all-Negro school in an all-Negro area, few or 
no white students in the combined zone can be expected to 
transfer to it because it will continue to be identified as a 
Negro school, Dr. Osburn pointed out. Furthermore, many 
Negro high school students can be expected to continue at­
tending Austin simply on the basis of tradition and prox­
imity. Since there is a general problem of a low average 
level of aspiration among Negro students because of the 
previous effects of segregation on themselves and in limit­
ing their parents to lower socio-economic class positions, 
Dr. Osburn concluded that the fact that this high school has



1 0

an all-vocational terminal education program will simply 
re-inforce this low level of aspiration since there will be no 
exposure to students or faculty members with different 
levels of aspiration (llla-117a).

With regard to faculty integration, Dr. Osburn pointed 
out the close relation to student desegregation, since the 
teachers in a school are the primary adult models to which 
children are exposed. Such models substantially influence 
the development of the child’s self-concept of his relation to 
members of the other race. For this reason, he concluded 
that “it is desirable that every child in any school in our 
present society should have some opportunity to be under 
the supervision and the directorship, and so forth, of teach­
ers of different races” (118a). Furthermore, he continued, 
the existence of a faculty at a school composed exclusively 
or predominantly of members of one race tends to identify 
that school as intended for members of that race only, 
particularly where that school was previously racially 
designated under the dual system (122a).

The faculty assignments for 1966-67 at the schools which 
were designated as Negro under segregated operation and 
which remain with virtually all-Negro enrollments were 
(48a-55a):

School Negro White
Austin Sr. High 22 4
Beardsley Jr. High 27 2
Cansler 10 4
Eastport 18 1
Green 23 2
Maynard 15 2
Mountain View 15 1
Sam Hill 20 1
Vine Jr. High 31 0

181 17



11

While there were 41 other Negro faculty members as­
signed to formerly white schools in the system, 33 of the 
56 formerly white schools continued to have no Negro 
faculty members during 1966-67 (48a-55a).

Dr. Osburn emphasized that the factor of children taking 
the adults with whom they come in contact in the school 
system as models and basing their self-concept on them 
also occurs with administrative and supervisory personnel, 
clerks, and maintainance and operations personnel, and 
thus the racial composition of staff other than faculty is 
also important in a desegregation plan. He pointed out 
that “children naturally look to models, they look to certain 
types of behavior of models, and if children consistently 
see people of one race in positions of leadership and in 
positions of low esteem, children have the tendency, psy­
chologists tell us, to accept these as normal things” (126a). 
He added: “If white children over a period of years did 
not see Negroes in responsible leadership positions they 
have a tendency to believe that the Negro is inferior” 
(126a).

The Knoxville School System’s Reply to Plaintiffs’ Inter­
rogatory showed that principals and clerks were still as­
signed on the basis of race in that the race of all principals 
and clerks was the same as that of the predominant student 
enrollment in the school in 1967 (48a-55a). All of the 
regular supervisory and administrative personnel of the 
Knoxville schools, without exception, were white (56a-57a). 
In the maintenance and operations division, Negroes were 
assigned exclusively to the unskilled positions of custodian, 
maid, and laborer, while all skilled labor positions without 
exception were occupied by whites (63a).

When queried about the relationship of extra-curricular 
activities to a desegregation plan, Dr. Osburn stated that



12

“the term extra-curricular is an antiquated term” since 
it has come to be realized that learning takes place during 
these activities as well as during formal instruction, and 
that the development of the social skills and self-concept 
to which these activities particularly contribute is an im­
portant part of the determination of what positions in, 
society a child will have an opportunity to enter after 
leaving school. Thus segregation of extra-curricular activi­
ties by race and/or socio-economic class is an important 
element of deprivation of equal educational opportunity 
(127a-128a).

C. The Educational E xpert’s Proposals for Partial Rem edies 
to Disestablish Segregation of the Negro Schools.

Dr. Osburn examined the zoning and grade structure of 
each of the formerly Negro schools in relation to adjacent 
formerly white schools, to determine if the most effective 
means to disestablish segregation had been used, even 
working within the confines of the existing school plant. 
The standard and most easily applied method for effec­
tively disestablishing segregation is consolidating the en­
rollments of adjacent nearby Negro and white schools and 
assigning all students in some grades to one school and 
all students in the remaining grades to the other school 
(known as “pairing” or the “Princeton plan”). This method 
does not require the furnishing of transportation when the 
paired schools are nearby, Dr. Osburn noted. He concluded 
that the pairing device would naturally apply to several 
of the formerly Negro and still virtually all-Negro schools, 
hut nevertheless had not been used by the school system 
(88a).

In particular, Dr. Osburn noted that still all-Negro Sam> 
Hill School (capacity, 567; 1-6) was one and a half blocks 
from still virtually all-white Lonsdale School (capacity,



13

675; 1-6), and that these two schools would logically have 
been paired to disestablish segregation (89a-96a). Still 
all-Negro Cansler School (capacity, 351; 1-6) was three 
blocks from still all-white West View School (capacity, 
378; 1-6), and these schools would also have been logically 
paired to desegregate them (96a-99a). Virtually all-Negro 
Maynard School (capacity, 486; 1-6) was approximately 
three blocks from predominantly white Moses School 
(capacity, 621; 1-6) and approximately four blocks from 
virtually all-white Beaumont School (capacity, 1,134; 1-6), 
and the grade structures and utilizations of all three schools 
could be easily re-arranged to desegregate them, he con­
cluded (99a-100a, 102a-104a).

Virtually all-Negro Beardsley Jr. High (capacity, 600; 
1966-67 enrollment of 477) was rather close to Eule Junior- 
Senior High (capacity 1,200; 7-12; 1966-67 enrollment of 
1,216 white and 140 Negro), Dr. Osburn found, as demon­
strated by the fact that the entire area of the Beardsley 
Jr. High zone was contained within the zone of Buie Senior 
High. For this reason he pointed out that an effective 
desegregation plan would have re-arranged the grade struc­
tures between Beardsley and Eule so that the whole six- 
year program was desegregated for all of the students 
(109a-llla).

Dr. Osburn also examined the Knoxville school system’s 
proposed future building plans with regard to whether they 
would contribute to the disestablishment of segregation. 
The program for development of senior high schools in­
cludes a long-range plan to construct three comprehensive 
senior high school centers in outlying areas of the city—one 
near the present Central High School (the Fountain city 
area), one near the present West and Bearden High Schools, 
and one near the present South and Young High Schools 
(128a-132a). The 1966-67 enrollments of these present



14

high schools, which indicates the types of areas they serve 
and/or how they are zoned, were (42a-47a):

School and grades White Negro

Central (9-12) 1,553 3
West (9-12) 774 40
Bearden (9-12) 1,013 31
South (9-12) 1,127 2
Young (9-12) 1,382 4

The fact that these projected centers will be comprehensive 
schools and have vocational as well as academic cnrriculums 
means that even those white students from these areas who 
now come into the more integrated comprehensive high 
schools in the center of the city (Austin-East, Fulton, and 
Rule) for vocational curricula will probably no longer do 
so, Dr. Osburn concluded (129a-131a).

The three outlying areas of the city in which the new 
comprehensive centers are proposed—the North, West, and 
South—are not adjacent to any substantial Negro residen­
tial areas within the central city and therefore would not 
draw any Negro students into them through the use of 
standard zoning, Dr. Osburn pointed out, while the one out­
lying area of the city in which no new comprehensive center 
is planned—the East—is adjacent to the major Negro resi­
dential area in the city and a comprehensive center there 
would integrate substantial numbers of Negro students 
through standard zoning (129a). Dr. Osburn stated: 
“Based on my estimation from these reports and what I 
have seen in other cities and some of the metropolitan city 
areas, I feel like this is going to perpetuate a further segre­
gation of [the traditionally all-Negro Austin High School] 
under this situation, because, unless this changes in Knox­
ville or any other city in this country, white children are



15

most reluctant to go into these former all-Negro schools” 
(129a-130a).

Dr. Oshnrn added that the construction of these new com­
prehensive centers for student bodies of 1,500 and more 
which would be virtually all white, would increase the al­
ready existing inequality of educational opportunity caused 
by the fact that all-Negro Austin High School (enrollment 
of 433) is less than half the average size of the other pres­
ently existing high schools in the system. This inequality 
results from the fact that particularly at the secondary level 
the quality of the educational program increases with 
the size of school, because of greater diversity of course 
offerings and other factors (132a-134a). Because this 
factor of the increasing quality of program as the size 
of secondary schools increases, applies even beyond the 
2,000 student level, Dr. Osburn suggested that not only 
should changes in location of the proposed new compre­
hensive high schools be considered in relation to the sub­
stantial Negro residential concentrations in the eastern 
central part of the city, but also that the schools be made 
large enough to absorb the Negro secondary students from 
the center of the city and thereby integrate them—rather 
than further ghettoizing them as will the present plan 
(131a-134a).

With regard to the remedy for the previous assignment 
of faculty members to schools based on race, Dr. Osburn 
stated that the common professional practice in the field of 
education was that teachers were assigned to various 
schools based on the needs for variously qualified faculty 
members rather than accepting the arbitrary pattern which 
would result from simply permitting all teachers to teach 
in whatever school they chose, and that therefore faculty 
integration should not be attempted by relying on volun­
teers (123a).



16

ARGUMENT
I.

Whether the Knoxville School System Is Completely 
Desegregated, in Spite of the Fact That the Negro 
Schools Under Dual Operation Remain Identifiable as 
Negro Schools and Are Attended Almost Exclusively by 
Negro Students?

The District Court Answered This Question “Yes” 
and PlaintifEs-Appellants Contend the Answer Should 
Have Been “No.”

After plaintiffs-appellants had introduced substantial 
expert testimony supporting their motion for further re­
lief that the student assignment, curriculum programming, 
building usage, new construction, and personnel policies 
of the Knoxville School System were generally perpetuating 
segregation rather than being designed to disestablish it, 
the district court ruled that “the Knoxville School System 
is desegregated under the plan which has been in operation 
since the school year 1963-64” (388a) and since “there isi 
no further need for the schools to operate under Court 
supervision, it is further Ordered that the case be stricken 
from the docket” (389a). Because the district court dis­
missed the case after an exhaustive analysis of the entire 
operation of the school system, this case clearly raises the 
fundamental and ultimate issue in school desegregation 
jurisprudence of the standard for what constitutes com­
plete desegregation of a formerly de jure segregated 
system.

It is important here to focus on the precise factual situa­
tion involved. While approximately 32% of the Negro 
students in the Knoxville School System attended sub­
stantially integregated schools during the 1966-67 school 
year, as the district court emphasized, it is equally true



17

that 68% of the Negro students in the system attended 
schools virtually exclusively with other Negroes—schools 
which had been designated as Negro schools under segre­
gated operation, and which continued to have virtually all- 
Negro enrollments (42a-47a). See chart, supra, p. 9. (The 
school board’s assertion that 82.6% of the Negro children 
in the system attended integrated schools indicates a mis­
conception of the nature of the problem, since the figure 
was determined by including the several schools with 400 
or so Negro students each and one or two white students 
each as “integrated” schools.)

Although there are Negro students attending formerly 
white schools, this is clearly a fortuitous consequence of 
the fact that the board was forced to adopt a unitary zoning 
system under the compulsion of this litigation in 1960. 
The policies of the school system since 1954 have rather 
clearly perpetuated segregation for the overwhelming 
majority of Negro students, rather than being directed 
toward disestablishing the previously imposed segregation 
completely. The Knoxville school system was absolutely 
segregated by compulsion up until 1960, six years after 
the Supreme Court’s desegregation order. Racially desig­
nated school buildings were located in the centers of 
homogeneous residential concentrations of Negroes and 
whites, and naturally increased the homogeneous racial 
character of the surrounding neighborhoods (105a). "When 
a unitary zoning system was instituted in 1960, the zone 
lines adopted nevertheless followed to the maximum ex­
tent possible the patterns of residential segregation which 
had been established (93a-98a, 102a-104a, 109a-112a). The 
relation between the previous location of buildings for 
the operation of a dual system and the subsequent adop­
tion of unitary zone lines is especially graphic in situations 
such as the Sam Hill (Negro) and Lonsdale (white) Ele­
mentary Schools, where the two buildings are a block and



18

a half apart. A single school plant in the approximate 
location of these schools serving their combined zones 
would be completely integrated, but instead of merging 
the operations of these two plants into a single school 
through grade re-structuring, the school board drew two 
separate zones around them in such a way as to preserve 
each as a racially identifiable school (89a-96a).

Concurrently with the adoption of a unitary zoning 
system in 1960, the school board also instituted the “minor­
ity to majority” transfer policy by which a student who 
was zoned to a school in which he would be in the racial 
minority could obtain a transfer back to a school in which 
he would be in the majority. Where all the schools in the 
system had previously been designated as Negro or white, 
and the new unitary zones tended to preserve those iden­
tifications by following the patterns of racial residential 
segregation to the maximum extent possible, the avail­
ability of this transfer option naturally caused students 
who perceived themselves as being in a school identified 
as intended for members of the opposite race to transfer 
out. The effects of such transfers were to increase the 
racial identification of the schools since they made the 
student bodies even more racially homogeneous than they 
would otherwise have been. After this provision was in­
validated by the Supreme Court in 1963, the school system 
then adopted the “grade requirement” and “brother-sister” 
transfer provisions which perpetuated and increased the 
effects of the “minority to majority” transfers by allowing 
those who had previously transferred, to remain in the 
school to which they had transferred, and allowing other 
members of the same family to also transfer to that school 
(80a-84a, 98a-101a, 136a-138a).

The racial identification of schools was also continued 
by the failure to re-assign faculty members who had orig­
inally been assigned on the basis of race in the dual sys­



19

tem, so that the Negro schools were still identifiable as 
Negro schools by the fact that virtually all of the faculty 
members were Negro (122a). It is the cumulative effect 
of these zoning, transfer, and faculty assignment policies 
which have caused all of the schools which were designated 
as Negro under the dual system to remain identifiable 
as Negro schools in that they have virtually all-Negro 
enrollments (42a-47a). Thus, for example, the “minority 
to majority” transfer provision and its successors was a 
more potent creator of segregation because the segregated 
faculties and racially homogeneous zoning clearly identified 
schools as intended for Negroes or whites, and gave addi­
tional impetus to minority students to transfer out.

Although granting the premise that visually obvious 
racial gerrymandering of zone lines would be a constitu­
tional violation, the district court determined that there 
was none. As to the other objections raised by plaintiffs- 
appellants, the court responded that it “is of the opinion 
that there is no constitutional duty on the part of the 
school board to bus Negro or white children out of their 
neighborhoods or to transfer classes for the sole purpose 
of alleviating racial imbalance which it did not cause, nor 
is there a duty to select new school sites solely in fur­
therance of such purpose” (385a) (emphasis supplied). 
The court’s reference to causation suggests that the issue 
becomes to what extent a school board which had pre­
viously operated a de jure segregated system is responsible 
for the continuing pattern of segregation which is based 
in that past de jure operation, when no substantial at­
tempt has been made to change that pattern, i.e. the rele­
vant time-frame for determining causation.

As stated above, because the district court dismissed 
the case the fundamental issue is posed as to whether on 
these facts the Knoxville school system is completely



20

desegregated. While the Supreme Court has not yet con­
sidered the general issue of when a formerly de jure 
segregated system is fully desegregated,1 several of the 
courts of appeals have come to grips with this question 
in recent general decisions governing the desegregation 
process (1967). The general concurrence of the Courts of 
Appeals for the Fifth, Eighth, and Tenth Circuits is that 
a previously de jure segregated system must undertake 
substantial affirmative action to disestablish the still exist­
ing patterns of segregation in the system if the simple 
adoption of racially neutral policies does not do so, and 
that this means in particular and ultimately that all of the 
formerly Negro schools must cease being identifiable as 
Negro schools both by their student enrollments and faculty 
compositions. In other words, constitutionally sufficient 
desegregation does not mean simply adopting provisions 
by which some Negro students are permitted to attend 
formerly all-white schools, while the general policies of 
the system continue to perpetuate the Negro schools as 
Negro schools, and therefore perpetuate segregation for 
the overwhelming majority of Negro students.

In United States v. Jefferson County Board of Educa­
tion et al., 372 F.2d 836 (5th Cir. 1966), reaffirmed en banc, 
380 F.2d 385 (5th Cir. 1967), the Court of Appeals for the 
Fifth Circuit held:2

1 The Court has so far considered for their adequacy only various 
specific elements of purported desegregation plans, such as the faculty 
assignment issue in Bradley v. School Board of Richmond, Va., 382 U.S. 
103 (1965) and Rogers v. Paul, 382 U.S. 198 (1965), and the “minority 
to majority” transfer provision in an earlier appeal of this case, Goss 
v. Board of Education of Knoxville, Tenn., 373 U.S. 683 (1963).

2 The portion of the original Jefferson County opinion dealing with the 
substantive problem of the standard for what constitutes complete de­
segregation of a formerly de jure segregated system is Section I I I  (372 
F.2d at 861-878), which is the most exhaustive analysis of this problem 
so far undertaken by a court of appeals.



21

The two Brown decisions established equalization 
of educational opportunities as a high priority goal 
for all of the states and compelled seventeen states, 
which by law had segregated public schools, to take 
affirmative action to reorganize their schools into a 
unitary, nonracial system. 372 F,2d at 847.

The Fifth Circuit recalled the basic constitutional defect 
of segregation, and why the relief in a class action suit 
against segregation must reach all members of the group:

Denial of access to the dominant culture, lack of 
opportunity in any meaningful way to participate in 
political and other public activities, the stigma of 
apartheid condemned in the Thirteenth Amendment 
are concomitants of the dual educational system. . . . 
the separate school system was an integral element in 
the Southern State’s general program to restrict Ne­
groes as a class from participation in the life of the 
community, the affairs of the State, and the main­
stream of American life: Negroes must keep their 
place.

Segregation is a group phenomenon. . . .  As a group 
wrong the mode of redress must be group-wide to be 
adequate. Adequate redress therefore calls for much 
more than allowing a few Negro children to attend 
formerly white schools; it calls for liquidation of the 
state’s system of de jure school segregation and the 
organized undoing of the effects of past segregation. 
372 F.2d at 866.

The Court therefore held:
The position we take in these consolidated cases is 

that the only adequate redress for a previously overt 
system-wide policy of segregation directed against Ne­
groes as a collective entity is a system-wide policy of 
integration. 372 F.2d at 869. (Emphasis in original.)



22

The Fifth Circuit pointed out why it held that affirmative 
action must be taken by the school boards to disestablish 
segregation in all schools of the system, notwithstanding 
that segregation of some of the schools may appear to 
resemble the fortuitous homogeneous racial concentrations 
which sometimes occur in schools in other areas of the na­
tion which did not have state enforced segregation.:

. .. the holding in Brown, unlike the holding in Bell but 
like the holdings in this circuit, occurred within the 
context of state-coerced segregation. The similarity of 
pseudo de facto segregation in the South to actual de 
facto segregation in the North is more apparent than 
real. Here school boards, utilizing the dual zoning 
system, assigned Negro teachers to Negro schools and 
selected Negro neighborhoods as suitable areas in 
which to locate Negro schools. Of course the concentra­
tion of Negroes increased in the neighborhood of the 
school. Cause and effect came together. In this circuit, 
therefore, the location of Negro schools with Negro 
faculties in Negro neighborhoods and white schools 
in white neighborhoods cannot be described as an 
unfortunate fortuity: It came into existence as state 
action and continues to exist as racial gerrymandering, 
made possible by the dual system. 372 F.2d at 876.

# # #

The central vice in a formerly de jure segregated 
public school system is apartheid by dual zoning: in 
the past by law, the use of one set of attendance 
zones for white children and another for Negro 
children, and the compulsory initial assignment of a 
Negro to the Negro school in his zone. Dual zoning 
persists in the continuing operation of Negro schools 
identified as Negro, historically and because the faculty 
and students are Negroes. Acceptance of an indi­



23

vidual’s application for transfer, therefore, may satisfy 
that particular individual; it will not satisfy the class. 
The class is all Negro children in a school district 
attending, by definition, inherently unequal schools 
and wearing the badge of slavery separation displays. 
Relief to the class requires school boards to desegre­
gate the school from which a transferee comes as 
well as the school to which he goes. 372 F.2d at 867- 
868.

The Court of Appeals for the Eighth Circuit concurred 
with the view of the Fifth Circuit on the question of the 
standard for what satisfies the constitutional obligation to 
desegregate in Kelley v. The Altheimer, Arkansas Public 
School District No. 22, 378 F.2d 483 (8th Cir. 1967), which 
specifically rejected the interpretation of the Fourteenth 
Amendment that “the Constitution, in other words, does 
not require integration. It merely forbids discrimination.” 
378 F.2d at 488. The Eighth Circuit held that there is an 
affirmative obligation to disestablish segregation system- 
wide :

We have made it clear that a Board of Education 
does not satisfy its constitutional obligation to deseg­
regate by simply opening the doors of a formerly 
all-white school to Negroes. 378 F.2d at 488.

It added that this meant that the board of education must
take affirmative steps to change the identities of Negro 
schools into integrated schools :

The appellee School District will not be fully deseg­
regated nor the appellants assured of their rights 
under the Constitution so long as the Martin School 
clearly remains identifiable as a Negro school. The 
requirements of the Fourteenth Amendment are not



24

satisfied by having one segregated and one desegre­
gated school in a District. We are aware that it will 
be difficult to desegregate the Martin School. How­
ever, while the difficulties are perhaps largely tradi­
tional in nature, the Board of Education has taken 
no steps since Brown to attempt to change its identity 
from a racial to a non-racial school. 378 F.2d at 490.

While the district court dismissed the Jefferson County 
and Kelley v. Altheimer cases as being factually distin­
guishable from the Knoxville case, it did not specify in 
what way it thought this to be true. Both of these cases 
did involve the transitional use of the so-called “freedom 
of choice” type desegregation plan which is not utilized 
per se in Knoxville—however, both cases were general 
decisions purporting to govern the entire desegregation 
process and therefore included holdings of the standard 
for what would constitute a fully desegregated system, 
and both cases specifically considered the question of 
whether the continuation of identifiable Negro schools was 
consistent with complete desegregation.

There can be no dispute that the Knoxville case is 
factually identical to the case of Board of Education of 
Oklahoma City Public Schools v. Dowell et al., 375 F.2d 
158 (10th Cir., 1967), cert. den. 387 TT.S. 931, affirming 
Dowell et al. v. School Board of Oklahoma City Public 
Schools, 219 F. Supp. 427 (W.D. Okla. 1963) and 244 
F. Supp. 971 (W.D. Okla. 1965), which was not discussed 
by the district court.

The Oklahoma City school system had announced a for­
mal desegregation plan by unitary zoning in 1955, whereas 
the Knoxville schools did not take even this initial step 
until 1960. After zoning its sehols in such a way as to pre­
serve the maximum possible segregation without explicit



25

dual zones through following the patterns of racial residen­
tial segregation, the Oklahoma City school system then in­
stituted a “minority to majority” transfer plan by which 
students who were unavoidably zoned to schools where they 
would be in a racial minority were encouraged to transfer 
to schools where they would be in a racial majority. Thus, 
virtually all of the schools in Oklahoma City which had 
been designated as “white” or “Negro” schools under segre­
gation, remained identified as “white” or “Negro” schools 
because the student bodies were almost or entirely all-white 
or all-Negro. The Knoxville school system did likewise. 
The Oklahoma City school system continued to assign all- 
Negro faculties to schools which were all or predominantly 
Negro in student body, and all-white faculties to schools 
which were all or predominantly white in student body, 
thereby reinforcing the identifications of various schools 
as being intended for Negroes or whites rather than just 
for students. The Knoxville school system did likewise. 
The Oklahoma City school system located new schools in 
the centers of homogeneous racial residential concentra­
tions, so as to facilitate the perpetuation of segregation 
through the use of zoning, transfer, and faculty assign­
ment policies. The Knoxville school system did likewise.

Based on these facts, the Tenth Circuit in the Oklahoma 
City case approved a district court finding that “the school 
children and personnel have in the main from all of the 
evidence been completely segregated as much as possible 
under the circumstances rather than integrated as much as 
possible.” 375 F.2d at 161, fn. 2. The Tenth Circuit stated 
that “inherent in all of the points raised and argued here 
by [the school board] is the contention that at the time of 
the filing of this case there was no racial discrimination 
in the operation of the school system.” 375 F.2d at 164. 
It responded that this fact situation did constitute a case 
of legal segregation which had not been disestablished, in



26

spite of the facts that zone lines had been redrawn to elimi­
nate obvious duality in 1955, and that there were some 
Negro students attending previously all-white schools:

As we have pointed out, complete and compelled 
segregation and racial discrimination existed in the 
Oklahoma City School system at the time the Brown 
decision became the law of the land. It then became 
the duty of every school board and school official “to 
make a prompt and reasonable start toward full com­
pliance” with the first Brown case. . . . The attendance 
line boundaries [adopted as compliance with Brown], 
as pointed out by the trial judge, had the effect in 
some instances of locking the Negro pupils into totally 
segregated schools. In other attendance districts which 
were not totally segregated the operation of the trans­
fer plan naturally led to a higher percentage of segre­
gation in those schools. 375 F.2d at 165.

The Tenth Circuit then held in Oklahoma City that 
“under the factual situation here we have no hesitancy in 
sustaining the trial court’s authority to compel the board to 
take specific action in compliance with the decree of the 
court so long as such compelled action can be said to be 
necessary for the elimination of the unconstitutional evils 
pointed out in the court’s decree.” 375 F.2d at 166. In­
cluded in the action required to eliminate the effects of 
previous unconstitutional segregation was an order pairing 
six-year secondary schools so that three grades of each 
school were consolidated in one school and three grades 
in the other school, thereby completely integrating each 
school in the pair. This clearly required a school board 
to take affirmative action to disestablish the pattern and 
practice of segregation preserved through the use of a 
zoning and transfer plan.



27

Judge Lewis concurring in the Oklahoma City case ex­
plained the Tenth Circuit’s view that since compulsion was 
used to maintain the system of segregation, the compulsion 
inherent in school assignment policies may properly be used 
to disestablish segregation:

I have no quarrel with the statement that forced 
integration when viewed as an end in itself is not 
a compulsion of the Fourteenth Amendment. But any 
claimed right to disassociation in the public schools 
must fail and fall. If desegregation of the races is to 
be accomplished in the public schools, forced asso­
ciation must result, not as the end sought but as the 
path to elimination of discrimination. And, to me, 
the argument that racial discrimination cannot be elim­
inated through factors of judicial consideration that 
are based upon race itself is completely self-denying. 
The problem arose through consideration of race; 
it may now be approached through similar but en­
lightened consideration.



28

II.
W hether the K noxville School System Should Have 

Been Ordered to Pair Identifiable Negro Schools Which 
Could Be Paired, Locate New Construction to Help  
Elim inate Identifiable Negro Schools, and Take Other 
Affirmative Action to Disestablish Segregation?

The District Court Answered This Question “No” and 
Plaintiffs-Appellants Contend the Answer Should Have 
Been “Yes.”

Plaintiffs-appellants’ educational expert, Dr. Morris Os- 
burn, Director of the Human Relations Center for Educa­
tion at Western Kentucky University, had served as a con­
sultant on the development of desegregation plans for 
school districts in Louisiana, Mississippi, Kentucky, West 
Virginia, and Illinois, and thus was well qualified to under­
take analysis of the desegregation problems of the Knox­
ville school system (77a-78a). After this analysis he con­
cluded that three of the six Negro elementary schools 
(grades 1-6) and one of the two Negro junior high schools 
(grades 7-10) were close enough to nearby white schools 
of the same grades that each could easily be paired in a 
“Princeton plan” without producing a combined zone which 
would be larger than the average elementary or junior 
high zone (88a-104a, 109a-llla). See Statement, supra, 
pp. 12-13.

By pairing or the “Princeton plan”, the capacities and 
zones of the two nearby paired buildings are considered 
as one, and all of the students in the combined zone in 
some grades are assigned to one of the buildings and all 
of the students in the remaining grades are assigned to the 
other building based upon the capacities of the respective 
buildings. Such a reorganization of the grade structures 
of the paired schools does not involve the necessity to



29

provide transportation to any students if the schools are 
close enough together. The three sets of elementary schools 
which Dr. Osburn recommended to be paired were from 
one to four blocks apart, so that even a student at the 
most distant end of the old zone of one of the paired 
schools would have to walk no more than one to four 
blocks further if he were assigned to the other school in 
the pair, and thus no transportation would have to be 
furnished. Similarly, the zone of one of the junior high 
schools recommended to be paired was completely within 
the zone of the senior high school at which site the other 
junior high school was located, so that no junior high 
student in the combined zone would have to travel any 
further than students eventually would for senior high 
school. The pairing device is peculiarly suitable for for­
merly dual school systems which frequently located two 
buildings for the same grades very near to each other soi 
that one could be used for Negroes and the other for whites 
in the same general area. This is especially clear in the 
case of the three sets of pairs of elementary schools which 
Dr. Osburn recommended in Knoxville.

While the problem of disestablishing segregation of a 
formerly dual school system is sometimes made difficult 
by the fact that the building plants of the system were 
designed and located for segregated operation and that 
capital investments of this type must be used for a long 
time, this fact is no longer true when it comes time to 
renew the capital plant of the system by new construction. 
For this reason, plaintiffs’ educational expert gave spe­
cial attention to the Knoxville school system’s program for 
building several new comprehensive secondary school cen­
ters, which was just announced at the time of the May 
1967 hearing. See Statement, supra, pp. 13-15. Dr. Os­
burn pointed out that the facts that these new secondary



30

centers were planned to be located far out of the eastern 
central section of the city (where the largest Negro resi­
dential concentration is) in the centers of homogeneous 
white suburban areas in the North, West, and South, and 
that they were to be comprehensive schools including voca­
tional as well as academic curriculums, meant that a num­
ber of white students who had been attending the more 
integrated comprehensive high school centers in the city 
would no longer do so, and that in particular formerly 
Negro and still all-Negro Austin Senior High and Vine 
Junior High Schools would never be desegregated if this 
plan were carried out (129a-134a).

Dr. Osburn therefore suggested that changes in location 
of at least one and possibly more of these centers be made 
in relation to the fact that the largest Negro residential 
concentration is in the eastern central section of the city. 
Thus a comprehensive center located on the fringe between 
the eastern central section of the city and the eastern 
suburban area could be substantially integrated through 
the use of normal zoning. He also suggested that the cen­
ters be made large enough to accomodate students from 
the central section of the city as well as the suburban areas, 
so as to avoid ghettoizing the center of the city. This 
would also overcome the inequality caused by the fact that 
all-Negro Austin High School is so much smaller than 
the other present high schools in the system and will be 
even smaller still by comparison to the new centers, and 
that the quality of an educational program at the secondary 
level increases with the size of a school (129a-134a). Al­
though as the district court noted the general population 
movement in Knoxville is away from the center of town 
toward the outlying areas, and the school system therefore 
might reasonably decide not to construct a large new 
secondary center right in the center of town (378a), Dr.



31

Osburn’s analysis suggested that here are ways of lo­
cating and constructing new comprehensive secondary 
centers outside the center of town which would never­
theless not have the extreme effect of perpetuating segre­
gation as does the present plan of the Knoxville school 
system.8

The district court held that there is no constitutional 
duty on the part of a school board to transfer classes 
(i.e. pair schools) or to select new school sites for the 
purpose of integration (385a), and therefore refused to 
order the school board even to consider such proposals 
as those offered by plaintiffs’ expert or to undertake to 
prove that they were not feasible. We submit that on 
the facts of this case, this reveals an erroneously narrow 
conception of the proper role of a federal court of equity 
in supervising the desegregation process and assuring 
that complete relief is forthcoming for the previous con­
stitutional violation of operating a segregated school 
system.

The Supreme Court held from the beginning that the 
constitutional ban on segregation in public education re­
quired far reaching affirmative action to completely re­
organize the affected school systems to eliminate the prac­
tice. In the second Brown decision, 349 U.S. 294 (1955), 
it said that “to effectuate this interest may call for elim­
ination of a variety of obstacles,” and directed the district 
courts supervising the re-organizations to “consider prob­
lems related to administration, arising from the physical 
condition of the school plant, the school transportation 
system, personnel, revision of school districts and at­

8 On this point particularly, as well as various types of remedy for 
disestablishing segregation generally, see the Report of the United States 
Commission on Civil Rights, “Racial Isolation in the Public Schools,” 
(1967), Yol. I, pp. 140-183.



32

tendance areas into compact units to achieve a system of 
determining admission to the public schools on a non- 
racial basis, and revision of local laws and regulations 
which may be necessary in solving the foregoing problems.” 
349 U.S. at 300-301.

The Court directed that “in fashioning and effectuating 
the decrees, the courts will be guided by equitable prin­
ciples.” 349 U.S. at 300. The general equity principle is 
that there is no wrong without a remedy, and therefore 
equity courts have broad power to provide relief and are 
obligated to do so. The test of the propriety of measures 
adopted by such courts is whether the req^^ired remedial 
action reasonably tends to dissipate the effects of the con­
demned actions and to prevent their continuance. Louisiana 
v. United States, 380 U.S. 145 (1965). An example of the 
application of this equitable principle is in the antitrust 
area, where it has been held to require the complete dis­
solution of large national business enterprises, when there 
is no other way to counteract the previous effects of illegal 
monopolization. United States v. Standard Oil Co., 221 
U.S. 1 (1910); Schine Chain Theatres v. United States, 
334 U.S. 110 (1948). Similarly, it has been held to require 
that federal courts conduct the redrawing of state legisla­
tive districts when there is no other way to counteract the 
effects of population disparities in existing state legisla­
tive districts. Reynolds v. Sims, 377 U.S. 533 (1964).

As indicated above, the Courts of Appeals for the Fifth, 
Eighth, and Tenth Circuits have held that this equitable 
doctrine, as applied to the problem of remedy for the un­
constitutional creation and operation of a segregated pub­
lic school system, requires a school board to undertake 
substantial affirmative action purposed to disestablish seg­
regation completely, and that this means specifically that



33

the formerly Negro schools must cease being identifiable 
as Negro schools. The creation and operation of separate 
schools for Negroes was the condemned action, and the 
test of the propriety of remedial action to be required by 
a court is thus whether it will disestablish the existence of 
the Negro schools, i.e. integrate Negro students. The 
courts have specifically held that both types of proposals 
offered by plaintiffs’ educational expert—pairing (the 
“Princeton plan”) and location of new construction to dis­
establish segregation—are proper remedies and should be 
required if necessary to disestablish segregation.

With regard to the “Princeton plan” or pairing, the 
Fifth Circuit held in Jefferson County, supra:

If school officials in any district should find that 
their district still has segregated faculties and schools 
or only token integration, their affirmative duty to take 
corrective action requires them to try an alternative 
to a freedom of choice plan, such as a geographic 
attendance plan, a combination of the two, the Prince­
ton plan, or some other acceptable substitute, perhaps 
aided by an educational park. 372 F.2d at 895-896.

The Oklahoma City case, supra, decided by the Tenth Cir­
cuit, specifically upheld an order of the district court, 
based upon the recommendation of outside educational ex­
perts, requiring the pairing of six-year secondary schools 
so that three grades of each school were consolidated in 
one school and three grades in the other school, thereby 
completely integrating all of the students in the paired 
schools. Pairing in particular is not a major innovation, 
since it is simply a way of redrawing the attendance areas 
to disestablish dual schools, a redrawing which the Supreme 
Court specifically ordered in the second Brown decision, 
supra.



34

With regard to new construction, the Fifth Circuit’s de­
cree in Jefferson County, supra, specifically states:

The defendants, to the extent consistent with the 
proper operation of the school system as a whole, shall 
locate any new school and substantially expand any 
existing schools with the objective of eradicating the 
vestiges of the dual school system and of eliminating 
the effects of segregation. 372 F.2d at 900.

The Eighth Circuit in Kelley v. Altheimer, supra, a case 
which directly involved a suit for injunction against new 
school construction alleged to perpetuate segregation, 
held:

It is clear that school construction is a proper matter 
for judicial consideration. Wheeler v. Durham City 
Board of Education, 346 F.2d 768 (4th Cir. 1965); 
Board of Public Instruction of Duval County, Fla., 
et al. v. Braxton, et al. [326 F.2d 616 (5th Cir. 1964)]. 
It is also clear that new school construction cannot 
be used to perpetuate segregation. In Wheeler v. 
Durham City Board of Education, supra at 774, the 
Court stated:

“From remarks of the trial judge appearing in the 
record, we think he was fully aware of the pos­
sibility that a school construction program might 
be so directed as to perpetuate segregation. . . .”

Eelying upon Wheeler, the District Court in Wright 
v. County School Board of Greensville County, Va., 
252 F. Supp. 378, 384 (E.D. Va. 1966) said:

“This court is loathe to enjoin the construction of 
any schools. Virginia, in common with many other 
states, needs school facilities. New construction,



35

however, cannot be used to perpetuate segrega­
tion. . .
We conclude that the construction of the new class­

rooms by the Board of Education had the effect of 
helping to perpetuate a segregated school system and 
should not have been permitted by the lower court. 
378 F.2d at 496-497.

In the District of Columbia school desegregation case, 
Hobson v. Hansen, 269 F. Supp. 401 (D.C. 1967), the court 
ordered:

In preparing the plan to alleviate pupil segregation 
which the court is ordering the defendants to file, how­
ever, the court will require that the defendants con­
sider the advisability of establishing educational parks, 
particularly at the junior and senior high school levels, 
school pairing, Princeton and other approaches to­
ward maximum effective integration. Where because 
of the density of residential segregation or for other 
reasons children in certain areas, particularly the 
slums, are denied the benefits of an integrated educa­
tion, the court will require that the plan include com­
pensatory education sufficient at least to overcome the 
detriment of segregation and thus provide, as nearly 
as possible, equal educational opportunity to all school- 
children. Since segregation resulting from pupil as­
signment is so intimately related to school location, 
the court will require the defendants to include in their 
plan provision for the application of the principles 
herein announced to their $300,000,000 building pro­
gram. 269 F. Supp. at 515.



36

The district court in this case stated that “the point to 
be recognized in a case where all other educational factors 
are equal, is that the Board’s action is based upon expert 
opinion” (387a), and therefore refused to give weight to 
the analysis or proposals of plaintiffs’ educational expert. 
While plaintiffs-appellants do not dispute that the admin­
istrators of the Knoxville school system are educationally 
qualified for their positions, we do submit that this state­
ment indicates a misconception on the part of the district 
court as to what is involved in a constitutional suit of this 
type. The very essence of Constitutional Law is the pro­
tection of minorities against the impermissible acts of ma­
jorities acting through the power of government. Although 
the administrators of the school system may qualify as 
educational experts, they and the board of education as 
elected officials are responsive to the political majority 
which originally enacted the segregated system and which 
may still wish to see it preserved as much as possible. It 
is this fact which made necessary the intervention of fed­
eral courts in the affairs of local school systems in the first 
place to redress the constitutional violation. The Fifth 
Circuit clearly recognized this in Jefferson County, supra, 
when it said: “Local loyalties compelled school officials and 
elected officials to make a public record of their unwilling­
ness to act.” 372 F.2d at 854.

It is precisely for this reason that the detailed supervi­
sion of desegregation by the federal courts—utilizing the 
advice of outside experts in educational administration 
who are free of local pressures, to make such supervision 
meaningful as well as equitable—is crucial to the actual 
achievement of the constitutionally required relief for the 
creation of segregated educational systems. As the Fifth 
Circuit said “judges and school officials can ill afford to



37

turn their backs on the proffer of advice . . . from any re­
sponsible government agency or independent group com­
petent to work toward solution of the complex problem of 
de jure discrimination bequeathed this generation by ten 
preceding generations.” 372 F.2d at 896.
The Oklahoma City case, supra, clearly stands for this 
proposition, since the district court had secured the ad­
vice of a panel of independent experts in educational ad­
ministration nominated by the plaintiffs and based his or­
der requiring various types of specific affirmative actions 
to disestablish segregation upon their recommendations. 
The Eighth Circuit in Kelley v. Altheimer, supra, also 
relied upon such outside expert testimony in reaching the 
conclusion (contrary to the lower court) that new con­
struction in the school system would perpetuate segrega­
tion.

RELIEF

For the foregoing reasons, plaintiffs-appellants respect­
fully submit that the decision of the lower court dismissing 
the case should be reversed, that the school board should 
be ordered to change its policies and undertake the var­
ious types of affirmative action to disestablish the remain­
ing segregation in the Knoxville school system as specified 
in plaintiffs-appellants’ motion for further relief, including 
but not limited to the pairing of identifiable Negro schools 
which can be paired and the location of new construction 
to help eliminate identifiable Negro schools, and that the 
district court should be ordered to retain jurisdiction of 
the case until the desegregation process is complete and



38

utilize advice of independent experts in educational admin­
istration in the course of such supervision.

Respectfully submitted,

J ack Greenberg
J ames M. N abrit, III
M ich a el  J .  H enry

10 Columbus Circle
New York, New York 10019

Carl A. C owan
2212 Vine Avenue, S.E. 
Knoxville, Tennessee 37915

A von N. W illiam s , J r.
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee 37201

Attorneys for Plaintiffs-Appellants



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