Bivins v. Board of Public Education and Orphanage for Bibb County Record on Appeal
Public Court Documents
May 25, 1964

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Brief Collection, LDF Court Filings. Bivins v. Board of Public Education and Orphanage for Bibb County Record on Appeal, 1964. 872fa6e6-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/404fec59-3b36-47c2-8c77-7a053a0c14b7/bivins-v-board-of-public-education-and-orphanage-for-bibb-county-record-on-appeal. Accessed July 09, 2025.
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Inttefc (Emtrt 0! Appmh I n t h e F or t h e F if t h C ircu it No. 21690 S h ir ley B iv in s , et al., —v.— Appellants, B oard of P ublic E ducation and Orphanage for B ibb County , et al., Appellees. APPEAL FROM TPIE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA RECORD ON APPEAL D onald L. I I ollowell 859% Hunter Street, N. W. Atlanta, Georgia J ack Greenberg C onstance B aker M otley D errick A. B ell, J r . 10 Columbus Circle New York, N. Y. 10019 Attorneys for Appellants I N D E X PAGE Complaint ........................................................ ............. - Motion for Preliminary Injunction -........................... Answer .................................... ....................................... Order of January 24, 1964 .................................. .......... Defendant Board’s Plan of Desegregation ...... .......... Plaintiffs’ Objections to Board’s Desegregation Plan .. Plaintiffs’ Plan of Desegregation ................................ Transcript of Hearing on April 13, 1964 ........... ..... .... Colloquy of Court and Counsel___ ___ _______ Summary of Plaintiffs’ Objections to Plan .......... 1 13 16 26 30 37 40 42 42 46 Appellants’ Witnesses: Julius L. Gfholson Cross ......................................................... 52 D irect..................................................... 74 Recross ..................................................... 75 Judge Mallory C. Atkinson Cross ......................................................... 76 11 PAGE Defendants’ Witnesses: Judge Mallory C. Atkinson D irect........................................................... 87 Cross .......................................................... 103 Redirect....................................................... 109 Recross ...................................................... 115 Wallace Miller, Jr. D irect...................................-............... ...... 117 Cross ..................................... 137 Redirect....................................................... 143 Recross ....................................................... 143 Dr. Leon R. Culpepper D irect.......................................................... 146 Cross .......................................................... 160 Redirect...................................................... 170 Recross ...................................................... 171 Julius L. Cliolson D irect.......................................................... 172 Resumed D irect............................... -......................... 204 Cross .......................................................... 206 Redirect....................................................... 230 Dr. H. GL Weaver D irect.......................................................... 197 Cross .......................................................... 201 Raymonde M. Kelley Direct .......................................................... 233 Cross .......................................................... 239 Ill PAGE Defendants’ Exhibits ............................ -............... 253 Plaintiffs’ Argument................................................ 261 Defendants’ Responsive Argument .................... — 275 Opinion and Order of April 27, 1964 Notice of Appeal ............................. 298 Isr t h e Ilnxtvb iistrirt (Umtrt F or t h e M iddle D istrict of Georgia Macon Division Civil Action No. 1926 S h irley B ivin s , J ames B iv in s , L arry B ivins an d F ra n k lin B iv in s , m in o rs , by H ester L . B iv in s , th e ir m o th e r an d n ex t fr ie n d , and S olomon B o uie , Glory A n n B ouie a n d D orothy M ae B ogie, m in o rs , by R ev. W ill ie R. B ogie, th e ir f a th e r an d n ex t fr ie n d , and J oyce D ickey , m in o r, by R ev. E. Grant D ickey , h e r f a th e r a n d n ex t fr ie n d , and H elen G oodrgm, L ela Goodrgm, T homas Goodrgm, J ohn Goodrgm an d Jo A n n G oodrgm, m in o rs , by T homas Goodrgm, th e ir f a th e r an d n e x t fr ie n d , and P atricia A n n H arper, m in o r, by A be H arper, h e r f a th e r an d n ex t fr ien d , and Charlie B ell W illiam s , S ara J eannette W illiam s and T om m ie L ee W illiam s , minors, by M rs. V ada D. H arris, their mother and next friend, an d 2 Complaint A lice M aeie H aet, m in o r, by M rs. W ill ie M ae H art, h e r m o th e r an d n ex t fr ie n d , an d P aul H il l , J r ., Cly ne H ill , B ern estin e H ill an d L ucy M ae H udson, m in o rs , b y I nez H il l , th e ir m o th e r an d n e x t fr ie n d , an d Carolyn H olston, M elvin H olston, L yre H olston, M axine H olston, an d E arnestine H olston, m in o rs , b y H enry H olston, th e ir f a th e r a n d n ex t fr ie n d , an d S olomon H u g h es , III, m in o r, b y S olomon H u g h es , J r ., h is fa th e r an d n ex t fr ie n d , an d B ill y J oe L ew is , H arold M artin L ew is , Y vonne D ian n e L ew is , R ay Charles L ew is an d E stella M arie L ew is , m in o rs , by M r. R ay L ew is , th e ir f a th e r an d n e x t fr ie n d , an d M errit J o h nso n , th e ir f a th e r a n d n e x t f r ie n d , M errit J ohnso&, th e ir f a th e r a n d n ex t fr ie n d , an d W ill ie H oward, J r ., D elores H oward, an d R andolph H oward, m in o rs , b y G ertrude H oward, th e ir m o th e r a n d n e x t fr ie n d , an d 3 Complaint D elmarie MoDow, minor, by W yatt J. McDow, her father and next friend, an d Lois F armer, L arry S tewart, M axine S tewart, J oe L. S tewart and L olita R utland , m in o rs , by D orothea S tewart, their mother and next friend, Plaintiffs, B oard oe P ublic E ducation of B ibb County , Georgia, H. G. W eaver, President, M allory C. A t k in so n , Vice Presi dent, W allace M iller , J r., Secretary, W illiam P. S im mons, Treasurer, George P. R a n k in , J r., H erbert F. B irdsey, C harles C. H eetw ig , A lbert S. H atcher , J r., F rank M. W illin g h a m , W illiam A. F ick lin g , Sr,, R obert A. M cC ord, J r., and R a lph E ubanks , Members, H on . W alter C. S tevens, Mayor E dgar H . W ilson , Judge Oscar L . L ong and Judge H al B ell , Ex-Officio Members, and J u liu s L. Gohlson , Superintendent, Defendants. C om plaint 1. The jurisdiction of this Court is invoked pursuant to the provisions of Title 28, United States Code, Section 1343(3), this being a suit in equity, authorized by law, Title 42, United States Code, Section 1983, to be commenced by any citizen of the United States or other person within the jurisdiction thereof to redress the deprivation, under color 4 Complaint of statute, ordinance, regulation, custom or usage of a State, of rights, privileges and immunities secured by the Constitution and laws of the United States. The rights, privileges and immunities sought to be secured by this ac tion are rights, privileges and immunities secured by the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, as hereinafter more fully appears. 2. This is a proceeding for a preliminary and permanent injunction enjoining the Board of Public Education of Bibb County, Georgia, its members and its Superintendent of Schools, Julius L. Gohlson, from continuing their policy, practice, custom and usage of operating a dual school sys tem in Bibb County, Georgia, based wholly on the race and color of the children attending schools in said county. 3. The plaintiffs in this case are Shirley Bivins, James Bivins, Larry Bivins and Franklin Bivins, minors, by Hester L. Bivins, their mother and next friend; Solomon Bouie, Glory Ann Bouie and Dorothy Mae Bouie, minors, by Rev. Willie R. Bouie, their father and next friend; Joyce Dickey, minor, by Rev. E. Grant Dickey, her father and next friend; Helen Goodrum, Lela Goodrum, Thomas Good- rum, John Goodrum and Jo Ann Goodrum, minors, by Thomas Goodrum, their father and next friend; Patricia Ann Harper, minor, by Abe Harper, her father and next friend; Charlie Bell Williams, Sara Jeannette Williams and Tommie Lee Williams, minors, by Mrs. Yada. D. Harris, their mother and next friend; Alice Marie Hart, minor, by Mrs. Willie Mae Hart, her mother and next friend; Paul 5 Complaint Hill, Jr., Clyne Hill, Bernestine Hill and Lucy Mae Hudson, minors, by Inez Hill, their mother and next friend; Carolyn Holston, Melvin Holston, Lyre Holston, Maxine Ilolston, and Earnestine Holston, minors, by Henry Holston, their father and next friend; Solomon Hughes, III, minor, by Solomon Hughes, Jr., his father and next friend; Billy Joe Lewis, Harold Martin Lewis, Yvonne Dianne Lewis, Eay Charles Lewis and Estella Marie Lewis, minors, by Mr. Bay Lewis, their father and next friend; Merrit Johnson, Jr., and Pamela Sue Johnson, minors, by Merrit Johnson, their father and next friend; Willie Howard, Jr., Delores Howard and Randolph Howard, minors, by Gertrude How ard, their mother and next friend; Delmarie McDow, minor, by Wyatt J. McDow, her father and next friend; and Lois Parmer, Larry Stewart, Maxine Stewart, Joe L. Stewart and Lolita Rutland, minors, by Dorothea Stewart, their mother and next friend. Plaintiffs are all members of the Negro race and bring this action on their own behalf and on behalf of all other Negro children and their parents in Bibb County who are similarly situated and affected by the policy, practice, custom and usage complained of herein. Plaintiffs are all citizens of the United States and the State of Georgia, Bibb County, Georgia. The minor plain tiffs and other minor Negro children similarly situated are eligible to attend the public schools of Bibb County which are under the jurisdiction, management and control of the defendant Board, but from which the plaintiffs and all other Negro children similarly situated have been segre gated because of their race pursuant to the policy, prac tice, custom and usage of the defendant Board. The mem bers of the class on behalf of whom plaintiffs sue are so numerous as to make it impracticable to bring them all in dividually before this Court, but there are common ques tions of law and fact involved, common grievances arising 6 Complaint out of common wrongs and common relief is sought for each member of the class. The plaintiffs fairly and ade quately represent the interests of the class. 4. The defendants in this case are the Bibb County Board of Education. The members of said Board are H. G. Weaver, President, Mallory C. Atkinson, Vice-President, Wallace Miller, Jr., Secretary, William P. Simmons, Treasurer, George P. Rankin, Jr., Herbert F. Birdsey, Charles C. Hertwig, Albert S. Hatcher, Jr., Frank M. Wil lingham, William A. Fickling, Sr., Robert A. McCord, Jr., and Ralph Eubanks. Hon. Walter C. Stevens, Mayor, Edgar H. Wilson, Judge Oscar L. Long and Judge Hal Bell are Ex-Officio Members. Julius L. Gohlson is Super intendent. The defendant Board maintains and generally supervises the public schools in Bibb County, Georgia, act ing pursuant to the direction and authority contained in the State’s constitutional provisions and statutes, and as such are officers and agents of the State of Georgia enforc ing and exercising state laws and policies. 5. Plaintiffs allege that the defendants, acting under color of the authority vested in them by the laws of the State of Georgia, have pursued and are presently following pur suant to and under color of state law, a policy, custom, practice and usage of operating the public school system of Bibb County, Georgia, on a basis that discriminates against plaintiffs and other Negroes similarly situated because of race or color, to w it: (a) The defendant Board maintains and operates the public schools in Bibb County, Georgia, all of which schools 7 Complaint are operated on a completely segregated basis. None of the approximately 11,000 Negro children residing within the County, and eligible to attend the public schools have ever been assigned by the Board to attend white schools, and in accordance with this policy, practice and custom, each of the minor plaintiffs is assigned to one of approxi mately 16 Negro schools, some of which are located further from their homes than schools limited to whites. In simi lar fashion, all of the approximately 19,000 white children residing within the County, and eligible to attend the pub lic schools, have been assigned by the Board only to the 34 white schools. Teachers, principals and other profes sional personnel are assigned by the defendant Board on the basis of race so that Negro teaching personnel are as signed to Negro schools and white teaching personnel are assigned to white schools. Bus transportation is provided on a racially segregated basis, and all curricula and extra curricular activities and school programs are conducted on a racially segregated basis. All budgets and other funds appropriated and expended by defendants are appropri ated and expended by defendants separately for Negro and white schools. (b) The defendant Board on several occasions has been placed on notice that plaintiff's and members of their class wish to have the Bibb County public schools desegregated in accordance with the Supreme Court’s school desegrega tion decision of 1954. (c) In December 1954, a petition calling on the Board to desegregate the schools was submitted by Negro citizens of Bibb County. In response to this petition, the Board promised to hold a hearing when such meeting would be constructive and proper. To plaintiff’s knowledge, no such hearing was ever held. Complaint (d) In August 1955, a second petition signed by Negro parents and citizens was submitted to the Board again call ing for an end to racially segregated schools in Bibb County. The defendant Board referred this petition to a special committee headed by defendant Board member Mal lory C. Atkinson. To plaintiffs’ knowledge, no action by this Board was ever made public. (e) In February 1961, the Macon Council on Human Re lations, an interracial group, appealed to the defendant Board to study the school situation for the purpose of initiating desegregation of the public schools. (f) In or about March 1963, a group of Negro citizens, including some of the plaintiffs, again petitioned the de fendant Board to desegregate the Bibb County public schools, as a result of which action, the defendant Board, on April 25, 1963 filed a petition seeking a declaratory judgment in the Bibb County Superior Court as to whether the Board had the power to desegregate the schools in view of its charter from the State which prescribes the operation of a system of distinct and separate schools for white and colored children. (g) The Bibb Superior Court ruled that the defendant Board has authority under its charter to operate its schools on a desegregated basis. However, the Board, with four members dissenting, adopted a Resolution stating that any decision to change the present segregated operation of the Bibb County public schools must be left to the federal courts, and reaffirming the Board’s “ . . . sincere and deep conviction that integration of the races in the public schools of Bibb County will be detrimental to both the colored and white races, and the entire county. The responsibility for and consequences of any such action rests upon others than this Board.” 9 Complaint 6. Plaintiffs allege that the policy, custom, practice and usage of the defendant Board in requiring the minor plain tiffs and other Negro children similarly situated to attend racially segregated schools in Muscogee County violates rights secured to plaintiffs and others similarly situated by the equal protection and due process clauses of the Four teenth Amendment to the Constitution of the United States and Title 42, United States Code, Section 1983. 7. Plaintiffs and other Negro citizens have made every effort, as set forth above, to communicate their dissatisfac tion with segregated schools to the defendant Board but to no avail. Indeed, the defendant Board is now on record as opposing any desegregation of the Muscogee County pub lic schools, and refusing to initiate desegregation unless such action is required by order of the federal courts. 8. Plaintiffs and each of them and those similarly situated have suffered and will continue to suffer irreparable in jury and harm caused by the acts of the defendant Board herein complained of. They have no plain, adequate or complete remedy to redress these wrongs other than this suit for injunctive relief. Any other remedy would be attended by such uncertainties and delays as to deny sub stantial relief, would involve a multiplicity of suits, cause further irreparable injury and occasion damage, vexation and inconvenience to the plaintiffs and those similarly situ ated. 10 Complaint W herefore , plaintiffs respectfully pray that this Court grant the following relief: 1. Advance this cause on the docket and order a speedy hearing of plaintiffs’ motion for preliminary injunction which is filed simultaneously with the filing of this com plaint and grant the relief prayed for therein. 2. Order a speedy trial of the merits of this case. 3. Upon the conclusion of the trial, issue a permanent injunction forever restraining and enjoining the defen dants, the Bibb County School Board, its members, em ployees and successors, and the Superintendent of Schools of Bibb County, his agents, employees and successors, and all persons in active concert and participation with the de fendants from: (a) continuing to operate a dual school system in Bibb County, Georgia, based wholly upon the race and color of the children attending school in Bibb County; (b) continuing to assign children to school in Bibb County on the basis of race and color; (c) continuing to assign teachers, principals, supervisors and other professional school personnel to the schools of Bibb County on the basis of race and color of the person- ney to be assigned and the race and color of the children attending the particular school to which the assignment is made; (d) continuing to designate certain schools as Negro schools and white schools; (e) continuing to appropriate funds, approve curricula and extra-curricular activities and other school programs 11 Complaint which are limited on the basis of race or discriminatory on the basis of race; (f) continuing to construct schools which are to be lim ited to attendance by one or the other racial group; (g) making any other distinctions based wholly upon race and color and in the operation of the public school system of Bibb County. In the alternative, plaintiffs pray that this Court direct defendants to submit a complete plan, within a period of time to be determined by this Court, for the reorganiza tion of the entire school system of Muscogee County, Georgia, into a unitary non-racial system which shall in clude a plan for the reassignment of all children presently attending the public schools of Bibb County on a non-racial basis and which will provide for the future assignment of children to school on a non-racial basis, the assignment of teachers, principals, supervisors and other professional school personnel on a non-racial basis, the elimination of racial designations as to schools, the elimination of all racial designations in the budgets, appropriations for school expenditures, and all plans for the construction of schools, and the elimination of racial restrictions on certain curricula and extra-curricular school activities, and the elimination of any other racial distinction in the operation of the school system in Bibb County which is based wholly upon race and color. 4. Plaintiffs pray that this Court retain jurisdiction of this case pending the transition to a unitary non-racial sys tem. 5. Plaintiffs pray that this Court will grant them their costs herein, reasonable attorney fees for those counsel re questing same, and grant such other, further, additional 12 Complaint or alternative relief as may appear to a court of equity to be equitable and just. D onald L. H ollowell 859V2 Hunter Street, N. W. Atlanta 14, Georgia T homas J ackson 845 Forsyth Street Macon, Georgia J ack Gbeenbebg Constance B a k es M otley D ebbick A. B ell , J b . Suite 2030 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs 13 Motion for Preliminary Injunction [C aption Om itted ] Plaintiffs move this Court for a preliminary injunction, pending the final disposition of this cause, and as grounds therefor rely upon the allegations of their complaint and show the following: 1. Plaintiffs continue to he assigned and forced to at tend racially segregated schools operated by the defendants pursuant to state policy, practice, custom, and usage as set forth in the complaint. 2. Plaintiffs’ constitutional rights are violated by such assignment and attendance at racially segregated schools. 3. Plaintiffs and other Negro citizens have petitioned the defendants in vain to initiate desegration of the Bibb County public schools in compliance with the United States Supreme Court school desegregation decision of 1954. 4. Defendants are now on record as favoring the main tenance of segregated schools, notwithstanding the deci sion of the United States Supreme Court in 1954, and have given notice that they will not initiate desegregation unless ordered to do so by the federal courts. 5. Plaintiffs are irreparably harmed by the defendant Board’s continued failure either to desegregate the public schools under its jurisdiction or submit a plan for the re organization of said school system on a unitary nonracial basis, and, in addition to the desegregation plan finally approved by this Court, should be admitted upon request to the nearest white school at the beginning of the second semester of the 1963-64 school year. 14 Motion for Preliminary Injunction W herefore , plaintiffs respectfully pray that this Court advance this cause on the docket and order a speedy hear ing of this action according to law and after such hearing: 1. Enter a decree enjoining defendants from refusing to admit each of the plaintiffs upon request at the beginning of the second semester of the 1963-64 school year to the nearest white school to their residences which they are eligible by grade to attend; 2. Enter a decree enjoining defendants, their agents, employees, successors, attorneys, and all persons in active concert and participation with them from: (1) maintaining a dual scheme or pattern of school zone lines or attendance area lines based on race and color, (2) assigning pupils to schools in Bibb County on the basis of race and color of the pupils, (3) assigning teachers, principals and other professional school personnel to the Bibb County schools on the basis of race and color of the person assigned and the race and color of the children attending the school to which such personnel is to be assigned, (4) approving budgets, making available funds, approving employment and construction contracts, and approving policies, cur ricula and programs designed to perpetuate or maintain or support compulsory racially segregated schools. In the alternative, plaintiffs pray that this Court enter a decree directing defendants to present a complete plan, within a period of time to be determined by this Court, for the reorganization of the entire school system of Bibb County into a unitary nonraeial system which shall include a plan for the assignment of children on a nonraeial basis; the assignment of teachers, principals and other profes sional school personnel on a nonraeial basis; the drawing of school zone or attendance area lines on a nonraeial basis; 15 Motion for Preliminary Injunction the allotment of funds, the construction of schools, the approval of budgets on a nonracial basis; and the elimina tion of any other discrimination in the operation of the school system or in the school curricula which are based solely upon race and color. Plaintiffs pray that if this Court directs defendants to produce a desegregation plan that this Court will retain jurisdiction of this ease pending court approval and full and complete implementation of defendants’ plan. Plaintiffs pray that this Court will allow them their costs herein, reasonable attorney fees for those counsel requesting same, and grant such further, other, additional or alternative relief as may appear to the Court to be equi table and just. D onald L. H ollowell 859% Hunter Street, N. W. Atlanta 14, Georgia T homas J ackson 845 Forsyth Street Macon, Georgia J ack Greenberg C onstance B aker M otley D errick A. B ell , J r . Suite 2030 10 Columbus Circle New York 19, New York Attorneys for Plaintiffs 16 Answ er [C aption Om itted ] Come now all of the defendants in the above case and for answer to the complaint respectfully sho w: First Defense 1. Defendant Board of Education, herein for convenience referred to as the Board, is a body politic and corporate created and operating as a corporation under a charter from the State of Georgia. Its correct corporate name is the Board of Public Education and Orphanage for Bibb County, and it has full power and authority to sue and be sued by said name and style. 2. The Board, as distinguished from its individual mem bers, is the corporate body charged with the direction and control of public education in Bibb County, Georgia, and is the only necessary or proper party defendant in this proceeding. 3. The Board admits the jurisdiction of this court, both as to parties and subject matter, and admits that plaintiffs as representatives of the class of minor Negro children in whose behalf they sue adequately represent such class and are entitled in this proceeding to such order of this court as will adequately protect the rights, privileges and immunities of said class, taking into account the adminis trative and other problems of the Board incident to the granting of such protection. 17 Answer 4. As in the ease of any other corporation the orders and judgments of this court in a proceeding in which the Board is the only party defendant will effectively constrain the individual members of the Board and its officers and em ployees. W herefore , defendants move that the complaint be dismissed as to all defendants other than the Board. Second Defense 1. Defendants admit that the plaintiffs named in paragraph 3 of the complaint are with negligible exceptions eligible to attend the public schools of Bibb County and are pres ently enrolled in the public schools of Bibb County for the 1963-64 school year. 2. Defendants deny, however, that any of said minor plain tiffs has prior to the filing of this petition ever at any time sought admission to any school heretofore operated for white children, or requested or sought transfer from the school to which he or she has been assigned, nor has any one acting in behalf of any of the minor plantiffs made such request. 3. Defendants admit that the Board has heretofore main tained and operated separate schools for white and colored children, and defendants admit that on occasions prior to March, 1963, substantially as alleged in paragraph 5 of the 18 Answer complaint, one or more relatively small groups of Negro residents of Bibb County, Georgia, have indicated to the Board their request as parents and citizens that the Bibb County school system be reorganized on a racially inte grated basis. Defendants admit that in or about March, 1963, a communication signed by seven such individuals was received by the Board in which a meeting with the Board was requested for the purpose of airing certain grievances pertaining to public education in Macon and Bibb County. Said communication of March, 1963, and the prior communications alleged in paragraph 5 of the com plaint are in writing and will speak for themselves. 4. Pursuant to the aforesaid communication of March, 1963, after meeting with said group, and after careful and deliberate consideration, the Board on April 25, 1963, filed a petition in the Superior Court of Bibb County seeking a declaratory judgment as to whether the Board had the power under its charter from the State to operate other than distinct and separate schools for white and colored children, and on or about July 8, 1963, the judgment of that court was obtained that notwithstanding provisions of the Board’s charter to the contrary such right and power did exist. 5. Prior to the decisions of the Supreme Court of the United States on May 17, 1954, and May 31, 1955, in Brown v. Board of Education, and in companion cases decided at the same time, the concept of separate but equal schools and other public facilities for white and colored children 19 Answer was judicially accepted as constituting compliance with all of the requirements of the Federal Constitution, and the maintenance and operation of separate schools in the State of Georgia was actually required by the general laws of the State. In the light of said decisions, and following court decisions over a period of years thereafter, all such general laws of the State of Georgia requiring segregation of the races were repealed, and at the present time there are no general laws in Georgia which prevent, whether valid or invalid, the placing of children of different colors in the same school. 6. However, there did remain until the aforesaid declara tory judgment of July 8, 1963, a provision in the Board’s charter expressly proscribing the placing of children of different colors in the same school by the Board, raising the question whether the Board had the power under its charter to operate other than separate schools for the white and colored races. While the Board realized that the prohibition in its charter was invalid, under decisions of the Supreme Court of the United States and other Federal Courts, the Board was uncertain whether it had the power from the State to act in disregard of said prohibition, or if it did so act whether its charter would be subject to rev ocation, and said declaratory judgment proceeding was voluntarily instituted by the Board to resolve that doubt, and to establish (1) that it did have the power to operate desegregated schools notwithstanding the prohibition in its charter or (2) that it did not have such power, in which latter event it would have followed that the Board would have to surrender all of its powers and responsibilities in 20 Answer respect to public education in Bibb County, returning the operation of the schools in said County to the State or to such other agency of the State as might be established for that purpose. Said declaratory judgment proceeding was instituted by the Board in a good faith effort on the part of the Board to resolve and remove any impediment in the way of desegregating the public schools in Bibb County insofar as the limitations and prohibitions contained in the Board’s charter were concerned; with the result that at the present time there is no statutory or charter impedi ment which would prevent compliance by the Board with any proper order of this court. 7. It is true that following said declaratory judgment the Board at a meeting on July 30, 1963, resolved by a divided vote that it would continue its present system of operating its schools. A copy of said resolution, which discloses the Board s reasons for such action, is attached hereto marked Exhibit A and is by reference made a part hereof. Said action was taken with the knowledge that certain Negro citizens, presumably to include the seven who had com municated with the Board in March, 1963, were preparing to file and would shortly file a petition in this court, as was actually done on August 14, 1963, though no prior peti tioner to the Board appears as a party plaintiff in said action, and in the belief that under all the facts and circum stances not necessary to be set forth herein it would be better for all concerned for the Board to act under the direction and continuing jurisdiction of this court than by voluntary ex parte action by the Board or by action by the Board pursuant to negotiations and agreements with a limited number of Negro citizens. 21 Answer 8. Defendants aver that for reasons which will in due time be made to appear to the court, involving administrative and other problems, any general, arbitrary or immediate reallocation of pupils in the Bibb County school system would result in disorganization and would impose intol erable burdens upon the public school system in Bibb County and upon the Board and its employees. 9. Defendants further say, specifically in response to plain tiffs’ motion for a preliminary injunction, that any order of this court at this time, either preliminary or otherwise, restraining and enjoining the Board in any respect would be premature and inappropriate pending the submission by the Board of a plan of desegregation and the considera tion of such plan by this court. Defendants say that any such injunction should be denied, or at least deferred for future consideration as the circumstances may hereafter warrant. 10. Specifically answering paragraph 8 of the complaint de fendants say that the fact and extent of injury and harm to plaintiffs and those similarly situated from maintaining segregated schools is a matter of opinion, and the extent to which other similarly situated minor children share the opinions alleged by the plaintiffs is questionable, but since these are not deemed by defendants to be legitimate mat ters of defense they make no admissions or denials with respect thereto. Defendants admit that to the extent that plaintiffs are entitled to redress such redress should be afforded by this court in this proceeding. 22 Answer 11. Defendants deny that they have been litigious, or even dilatory, and deny that plaintiffs are entitled to be granted attorneys’ fees for counsel representing them or their other costs herein. W herefore , defendants pray that the injunctive relief sought by the plaintiffs be denied, and that such direction be given by the court as to the court may seem meet and proper with respect to the formulation and submission of a plan to be prepared and submitted by the Board for the court’s approval. Respectfully submitted, C. B axter J oktes 1007 Persons Building Macon, Georgia Attorney for Defendants [Certificate Omitted] 23 EXHIBIT A R esolution o r t h e B oard oe P ublic E ducation and Orphanage for B ibb C ounty This Board of Education was created by Special Act of the General Assembly of Georgia approved August 23, 1872. One clear provision of the Act was that the Board shall maintain and operate separate schools for the colored and white children. This has been done to this day—for nearly a hundred years. We believe that the wise judg ment of the founders of this Board, in directing such sepa rate schools, was sound in 1872 and is sound today. Several weeks back the Board was advised and notified that a petition in Federal Court was forthcoming, directed at ending the long and successful operation of the public schools of Bibb County on a separate racial basis. Because of this advice and notification, and because of the clear mandate of its charter as to separate facilities for white and colored pupils, this Board was fearful that the Federal Court might order an end to such separate education of the races, whereby this Board could not then legally operate the school system of Bibb County. In view of this impending situation facing the Board, the Board invoked a ruling of the State Court, Bibb Supe rior Court, as to the Board’s authority under its charter from the State to operate the Bibb school system on a basis other than separate facilities for the races. The Bibb Superior Court ruled that the Board had au thority under its charter to operate its schools other than on a basis of separate schools for the races. This ruling of Bibb Superior Court was not invoked for any reason other than to ascertain if this Board had authority to operate other than separate schools for the races, so that the Board would not so do, at the individual 24 Exhibit A peril of its members if ordered to do so by the Federal Courts. If the Bibb Superior Court had ruled that the mandatory provision in the Board’s charter, to operate only separate schools for the colored and white races, was such an in tegral part of the charter that with such provision stricken the Board had no authority to operate the Bibb school system, then this Board would be functus officio, with no authority to operate its schools on any basis other than separate facilities for the races. A judicial determination of this Board’s position in the matter was thus necessary, and was obtained. The Supreme Court of the United States has declared that forced separation because of race in public schools is unconstitutional. That court has not ruled, and no other court has ruled, that any school or any school system operated voluntarily on a basis of separation of the races, or separation on any other basis, is unconstitutional, un desirable or repugnant to any principle or rule of law, society or human relations. We realize that all members of the Federal judicial sys tem, the judges of the Circuit Courts of Appeals and the District judges, are required by law and precedent to adhere to the decrees of the U. S. Supreme Court. We believe that the U. S. Supreme Court, in its school cases, realized that the circumstances in various localities and parts of the Nation, from state to state, and even within a state, would be different, requiring and justifying differ ent solutions and methods of fulfilling its decrees, even realizing that some systems, and its pupils and their par ents, might desire complete separation of the races in their schools. Because of this realization, the Supreme Court has granted local Federal Courts latitude in enforcing its 25 Exhibit A judgments if and when the matter is submitted to such local courts. The Federal District Courts have, by the Supreme Court of the United States, been made determinators of what type operation of a public school system meets the require ments of the Supreme Court decision under the peculiar circumstances of any particular case, when presented to the court. If this Board were to make a determination without the sanction and approval of the courts, its validity and lasting effect would be as uncertain as the weather. Without court sanction and approval, by its order, any such action taken by this Board, and administrative pro cedures set up to put into effect, today, this week, or this month, wrnuld have no assurance of being effective tomor row, next week or next month. We reaffirm our sincere and deep conviction, that integra tion of the races in the public schools of Bibb County will be detrimental to both the colored and white races, and the entire county. The responsibility for and consequences of any such action rests upon others than this Board. We feel that the vast majority of both our colored and white citizens of Bibb County are satisfied with the present system of operation of our schools, and that it would be contrary to the wishes of such vast majority for this Board to make any changes in its operation. We also feel that the public of Bibb County is entitled to know the position of its Board of Education in this matter. T herefore, be it resolved by the Board of Public Edu cation and Orphanage for Bibb County that this Board continue its present system of operating its schools. O rd er o f Jan u ary 24 , 1964 [C aption Om itted ] In August, 1963, plaintiffs filed their petition in behalf of themselves and other persons similarly situated against the named defendants. Plaintiffs have amended their peti tion so as to eliminate all of the defendants except the Board of Public Education and Orphanage for Bibb County. In their petition plaintiffs made allegations to the effect that the defendants were operating the Public Schools of Bibb County, Georgia, on a “completely segre gated basis”, to include the assignment of pupils, teachers, principals, and other professional personnel, as well as in the use of bus transportation, the conduct of curricular and extra-curricular activities and school programs. Plain tiffs further allege that all budgets and other funds appro priated and expended by defendants are appropriated and expended by defendants separately for Negro and white schools. Plaintiffs, also, allege, in substance, that all efforts of Negroes to effect desegregation of the Bibb County Public School System have been to no avail, and that they, as well as those similarly situated, “have suffered and will continue to suffer irreparable injury and harm caused by the acts of the defendant Board herein complained of.” They also allege that they have no plain, adequate or com plete remedy to redress their wrongs other than by the bringing of this suit for injunctive relief, indicating that any other remedy would be attended by such uncertainties and delays as to deny substantial relief, among other things. Plaintiffs then pray for an injunction forever re straining and enjoining the defendants, the Bibb County School Board, its members, employees and successors, and the Superintendent of the Schools of Bibb County, his agents, employees and successors, and all persons in active concert and participation with the defendants from: 27 Order o f January 24, 1964 “(a) continuing to operate a dual school system in Bibb County, Georgia, based wholly upon the race and color of the children attending school in Bibb County; “(b) continuing to assign children to school in Bibb County on the basis of race and color; “ (c) continuing to assign teachers, principals, super visors, and other professional school personnel to the schools of Bibb County on the basis of race and color of the personnel to be assigned and the race and color of the children attending the particular school to which assignment is made; “ (d) continuing to designate certain schools as Negro schools and white schools; “ (e) continuing to appropriate funds, approve curricu lar and extra-curricular activities and other school pro grams which are limited to attendance on the basis of race or discriminatory on the basis of race; “ (f) continuing to construct schools which are to be limited to attendance by one or the other racial group; “ (g) making any other distinction based wholly upon race and color in the operation of the public school system of Bibb County.” In the alternative, “plaintiffs pray that this Court direct defendants to submit a complete plan, within a period of time to be determined by this Court, for the reorganization of the entire school system of Bibb County, Georgia, into a unitary non-racial system which shall include a plan for reassignment of all children presently attending the public schools of Bibb County on a non-racial basis and which Order of January 24, 1964 will provide for the future assignment of children to school on a non-racial basis, the assignment of teachers, princi pals, supervisors and other professional school personnel on a non-racial basis, the elimination of racial designations as to schools, the elimination of all racial designation in the budgets, appropriations for school expenditures, and all plans for the construction of schools, and the elimina tion of racial restrictions on certain curricular and extra curricular school activities, and the elimination of any other racial distinction in the operation of the school sys tem in Bibb County which is based wholly upon race and color.” The answer of the defendants admits the essential alle gations of jurisdiction, plaintiffs’ capacity to sue in behalf of themselves and as representatives of the class of minor Negro children similarly situated (par. 3, First Defense) and that the Board has in the past and presently operates separate schools for white and colored children in Bibb County (pars. 3 and 7, Second Defense). Defendants have admitted that plaintiffs as representa tives of the class of minor Negro children in whose behalf they sue are entitled in this proceeding to such order of this Court as will adequately protect the rights, privileges and immunities of said class, taking into account the ad ministrative and other problems of the defendant Board incident to the granting of such protection, and plaintiffs recognize that the defendant Board should be allowed a reasonable period of time in bringing about the elimination of discrimination within the equal protection mandates of the Constitution. Accordingly the defendant Board of Education is hereby ordered and directed to make a prompt and reasonable 29 Order o f January 24, 1964 start towards the effectuation of the transition to a racially non-discriminatory school system and to present to this Court on or before the 24th day of February, 1964, a com plete plan adopted by said Board which is designed to bring about full compliance with this order and which shall provide for a prompt and reasonable transition to a racially non-discriminatory school system in the public school system of Bibb County, Georgia. Following the filing of defendant’s plan with this Court plaintiffs shall have twenty days to file objections to the plan, if any, after which this Court will set a date, place and time for hearing evidence and arguments of counsel for and against said plan and for any further order of this Court which may then appear meet and proper. The court retains jurisdiction of this cause for the pur pose of entering such further orders or granting such further relief to the plaintiffs as may be necessary, specifi cally whether or not the defendant Board of Education shall be enjoined as prayed, and the scope of such injunc tion, and the Court reserves for further hearing all other rulings, decisions and protective orders of the court pend ing compliance by the defendant Board with the foregoing directive. This 24th day of January, 1964. United States Judge W . A. B ootle 30 F lan o f B oard o f P ub lic E ducation and O rphanage fo r B ibb County P u rsu a n t to C ourt O rd er o f Jan u ary 2 4 , 1 9 6 4 [C aption Om itted ] This Plan is submitted by the Board of Public Education and Orphanage for Bibb County in compliance with the order of this court in the above stated case. As indicated by its pleadings heretofore tiled the Board has traditionally maintained and operated separate schools for white and Negro children in the exercise of its direction and control of public education in Bibb County. In so doing the Board has been diligent to insure that the separate facilities so provided would be equal. The Board has taken and now takes pride in the quality and adequacy of the public education which it has provided, without distinction as between the races, and particularly takes pride in the spirit of harmony and cooperation which has prevailed among all elements in the county in the accomplishment within the separate but equal doctrine of a superior educa tional system for the benefit of all eligible school children of the county. Describing generally the local system as it exists today, there are no school districts as such within the county for either white or Negro children. The authority to designate the school or schools to be attended, with the correspond ing duty, is vested in the Superintendent, subject to estab lished procedures relating to transfers, none of which is based on race distinctions except as such distinction is implicit in the fact that separate schools are provided for the separate races. It is true, however, that the Superin tendent is generally guided by recognized residential areas in placing children in the grammar schools and children progressing from a grammar school to a high school are 31 Defendant Board’s Plan for Desegregation generally placed in high school on the basis of the grammar school from which they graduate. From time to time these areas are changed or redefined as population or school census figures shift within the county. It is the eventual plan of the Board to establish a single unitary system of residential areas for school placement, without distinction as to race, but this cannot be accomplished immediately. In the meantime, and for some time, the Board has fol lowed a policy of avoiding references to race in its records, publications and designations, and will continue this policy. Nevertheless, for identification and other essential pur poses it is not possible to eliminate all such designations except as an ultimate objective. While Negro teachers are traditionally assigned to schools for Negro children and white teachers to schools for white children, no distinction based on race is made in the facilities provided for the several schools or in the appropriation or expenditure of available funds. The uni form salary schedule applied usually results in a higher average rate of compensation for Negro teachers than for white teachers. Bus transportation is provided for the school which the pupil is attending, and is provided on a separate basis only to the extent that the schools are separate. For practical purposes this is absolute at the present time, but it will not remain so as both white and Negro children attend the same school. The Board considers it utterly impracticable at the pres ent time, or within the near future, to reassign teachers, principals and other professional personnel on any basis different from the present practice, and does not include in this plan any proposal to do so. As the plan progresses that may become partially or wholly practicable and will 32 Defendant Board’s Plan for Desegregation be studied and considered when the time seems appropri ate. It is implicit in the subject which is dealt with in this proposal that upon the first step being taken in accordance with the plan hereby proposed, or even in anticipation thereof, frictions and conflicts may arise of more or less severity, but the Board is resolved and pledges itself to act with responsible planning and with continuing and complete obedience to the orders and directions of this court in bringing about the transitions herein proposed. The Board anticipates the full cooperation of the enforce ment officers of the local and state governments, and will lend its best effort to creating a climate which will avoid, or as far as possible minimize, any disruption of the school program by reason of such possible frictions or conflicts. It is the carefully considered opinion of the Board that any plan submitted by or imposed upon the Board should be implemented gradually over a reasonable period of time, and in progressive steps starting at the 12th grade and thereafter extending at successive intervals to the 1st grade, eventually including the entire system. The vocational school program in Bibb County is admin istered by the local Board as an agency of the State Board, and the Board has neither the full responsibility nor the duty with respect to the vocational system as it has with reference to the public school system in Bibb County. Nevertheless the Board feels that the vocational schools in Bibb County should be included and dealt with in this plan. In keeping with the traditional separate school pattern classes and programs for vocational training have gener ally been separately provided for white and Negro trainees, but this distinction has not been rigidly followed and is not absolute at the present time. It is a part of the pro- 33 Defendant Board’s Plan for Desegregation posed plan that no applicant will be denied admission in the future to any vocational program under the control of the Board, or transfer from one program to another, solely because of his or her race. In the light of the foregoing, and in accordance there with, the following plan is submitted: P L A N (1) The responsibility for and the duty of designating the school or schools to be attended within the system will continue to be vested in the Superintendent, subject to the responsibility and duty of the Board to give overall direc tion and supervision and to the Board’s final jurisdiction on appeal from a decision of the Superintendent. (2) No immediate change will be made in the identifica tion of residential areas or in the identification of the high school to which pupils graduating from the several gram mar schools are assigned, though these designations are subject to change from time to time as availability of space and pupil distribution among the existing schools make necessary. Except as indicated by subsequent paragraphs hereof, the present policies and procedures of the system will be continued with respect to the placement of pupils entering the system and with respect to the transfer of pupils within the system. Pupils will register for new terms at the school which they last attended. The proce dures presently in effect will from time to time be reviewed and from time to time revised, to provide adequate or more adequate opportunity for the pupils or their parents or guardians to express their preferences, whether upon enter ing the system for the first time or in respect to transfers, to the end that all such expressions of preference will be 34 Defendant Board’s Plan for Desegregation speedily considered and acted upon. They will provide full implementation of the plan and as set forth in paragraphs (4) and (6) hereof will be applied without distinction or discrimination because of race. (3) In acting upon pupil requests for original assign ments or for transfers the Superintendent will take into account the factors which presently guide him in the place ment of pupils and those which are in accordance with sound and generally observed practices in the field of pub lic school education throughout the country, with a view to the establishment, maintenance and operation of a public school system in Bibb County of the highest attainable caliber and quality for the benefit of all of the children of the county, and with a view toward the eventual elimina tion of compulsory racial segregation in all grades within the system. (4) The Board will establish a period beginning at a date to be announced following the date of the order ap proving this plan and ending thirty days thereafter as the period in which written applications will be received for transfers and reassignments from one school in the system to the 12th grade of another school in the system for the school year 1964-65, and will prepare and supply written forms for that purpose together with a statement of the rules of procedure applicable thereto. Said forms and rules will set forth the information required to be fur nished with such applications and the time within which such apxjlications will be evaluated and either approved or disapproved by the Superintendent. They will provide for written notice of the Superintendent’s action and will in form the applicant with respect to his or her rights to ad ministrative review or appeal. All such applications will 35 Defendant Board’s Plan for Desegregation be processed and acted upon without distinction based solely on race. Pupils first entering the system in the 1964- 65 school year in the 12th grade in the system will be af forded without distinction based solely on race the oppor tunity to request original assignment to the school of their choice in accordance with presently established procedure. (5) The Board will establish a committee or group of not less than six (6) or more than eight (8) members com posed of principals or other teaching or administrative personnel of the various schools in the system, to consist of an equal number of white and Negro members, which will be recognized as a recommendatory committee with which the Superintendent of the school system or other administrative personnel designated by the Superintendent will discuss and consider proposals, suggestions, complaints and other matters involving this plan. This committee will fix and determine its own meeting dates, or it may be called into meeting by the Superintendent, to consider and discuss any matter it may consider advisable concerning this plan, with authority to make recommendations to the Superin tendent, and through him to the Board, but this authority is not to supersede any other existing authority within the system. (6) This plan will be applied without distinction based on race in all 12th grades in the system for the school year 1964-65. It will thereafter be similarly applied in all 11th and 10th grades for 1965-66, all 9th grades for 1966-67, all 8th grades for 1967-68, all 7th grades for 1968-69, all 6th and 5th grades for 1969-70, all 4th grades for 1970-71, all 3rd and 2nd grades for 1971-72, and all 1st grades for 1972- 73; being or becoming applicable without distinction based 36 Defendant Board’s Plan for Desegregation on race for all grades in the system within nine school years beginning with the year 1964-65. By authority of the Board, this February 24, 1964. B oard op P ublic E ducation and Orphanage for B ibb County By H. Gr. W eaver, President 37 O bjections to P lan o f B oard o f P ub lic E ducation and O rphanage [C aption Om itted ] Come now, the plaintiffs in the above-styled action, and file this their objection to the plan of defendant Board of Public Education and Orphanage for Bibb County which has been filed in this case and as grounds show: 1 . Though paragraph 1 of the Plan vests the superintendent with power to administrate the matter of the designation of the respective public schools sought to be attended by students of Bibb County, no criteria are enumerated by which the superintendent is to be guided in making such designation; nor is there any procedure set out governing the appeals from the superintendent to the Board should there be some dissatisfaction with the designation. Also, there is no procedure enumerated by which one might appeal from the action of the. Board to the State Depart ment of Education. 2. Paragraph 2 of the Plan is objected to for the reason that: (a) There has been no revision in “the identification of residential areas or in the identification of the high school to which pupils graduating from the several grammar schools are assigned,” nor is there any suggestion that any change might be effected in the near future; (b) No basic plan is reasonably established for bringing about a transition to a unitary non-racial system at anytime in the immediate future. 38 Plaintiffs’ Objections to Board’s Desegregation Plan 3. Paragraph 3 of the Plan mentions factors to be taken in account by the superintendent in granting or refusing to grant requests for re-assignment without spelling out what those general factors are. Thus, the provisions of said paragraph are so general as to have little meaning. 4. The provisions of paragraph 4 appear to place the bur den of initiating some change in the present system upon those seeking transfers without the defendants themselves initiating any real action in revising the present dual system. 5. The provisions of paragraph 5 of the Plan is too general and establishes no time limitations on the proposed action by the Board relative to recommendations, proposals and suggestions from a committee or group referred to in said paragraph. It is conceivable that such proposed action could take many months and serve only to delay the prep aration of an effective and reasonable plan. 6. The provisions of paragraph 6 of the Plan purports to permit eight years for the total desegregation of the Public School System of Bibb County, whereas, it has been ten years since the handing down of the 1964 Supreme Court Decision concerning public school education. Thus, the defendants’ proposal that some eighteen years after the handing down of the decision as being a reasonable time for the completion of desegregation of the public schools of 39 Plaintiffs’ Objections to Board’s Desegregation Plan Bibb County is entirely inconsistent with reason or neces sity, and is therefore objectionable. 7. Because of the gross inadequacy of the Plan, and because there are other more specific objections which plaintiffs expect to make, it is respectfully requested that this Court set a day and time certain for a hearing on these and other objections which the plaintiffs may present. W herefore , plaintiffs pray that this Court set a day and time certain for a hearing on the objections filed. This 16th day of March, 1964. [Signatures and Certificate Omitted] 40 P lain tiffs’ P lan o f D esegregation [C aption Om itted ] The following plan for initiating desegregation of the Bibb County, Georgia, public schools was prepared by plaintiffs to provide this Court with a method of effectu ating plaintiffs’ objections to the desegregation plan sub mitted by the defendant Board of Education. Preliminary Statement It is the experience of plaintiffs’ counsel that the deseg regation of public schools by grades according to uni- racial zone lines, while perhaps ultimately necessary to a truly desegregated system, does not, as administered dur ing the initial years, achieve such desegregation: 1. White pupils, even when residing close to Negro schools are, through one administrative procedure or an other, not required to attend Negro schools. 2. Negro students within the grades being desegregated are not required to attend white schools located in the zones of their residence unless the Negro parents express their desire for such assignments, and even then must fre quently meet criteria, standards, and tests not applied to white students assigned to such schools as a matter of course. 3. The number of students desiring desegregated assign ments during the initial years is generally small, and since only those desiring such assignments receive them, there is no justification for restricting such requests to only one or two grades, or in any way limiting the right of such applicants, including usually most of the plaintiffs, to obtain assignments to desegregated schools. For these reasons, plaintiffs respectfully submit that the following plan will meet their objections to the Board’s 41 Plaintiffs’ Plan of Desegregation plan and, more importantly, insure that desegregation is initiated in the public schools of Bibb County during the forthcoming 1964-65 school year in a manner acceptable to plaintiffs and not disruptive to the operation of the schools. Plaintiffs’ Plan Of Desegregation By appropriate means, the parents of all students in the public schools in Bibb County, Georgia, shall be notified of their right to seek and obtain desegregated assignments for the 1964-65 school year. The Board shall provide appli cation forms for such assignments and provide a reason able time in which the application forms shall be completed and returned to the Board. The application forms shall enable the parents to request a first and second choice of schools, with the understanding that if bona fide problems of school capacity or transpor tation render inadvisable assignment to the school of the first choice, the child shall be assigned to the school of the second choice. Administrative problems of assignment may be solved by the Board as long as all students requesting desegregated assignment are granted same. Students entering the public schools for the first time shall have the right to seek and obtain desegregated assign ment on a basis no different than that set forth above for students presently in the system. This plan does not prevent the Board from initiating, or the plaintiffs from urging at appropriate times prior to the beginning of subsequent school year's, the initiation of: (1) general desegregated assignments according to uni- racial zone lines; (2) faculty desegregation; or (3) other measures required to bring about a completely desegre gated system of schools in Bibb County. [Signatures and Certificate Omitted] 42 T ran sc rip t o f H earing [C aption Om itted ] Non-jury before: H onorable W. A. B ootle, United States District Judge. at Macon, Georgia, April 13-14, 1964. A p p e a r a n c e s : For Plaintiffs: H ollo w ell , W ard, M oore & A lexander, 859i/2 Hunter St. N. W., Atlanta, Ga. 30314 Mr. D onald L. H ollowell, of counsel. For Defendants: J ones, S parks, B enton & Cork, 1007 Persons Building, Macon, Georgia. M r . C. B axter J ones, of counsel. Reported by Claude J oiner , J r., Official Reporter, U. S. Court, Middle District of Georgia, P. 0. Box 94, Macon, Ga. Macon, Georgia, April 13, 1964 9 :40 A.M. The Court: Gentlemen, we have the case of Shirley Bivins, et al. against The Board of Public Education of Bibb County. I think the name was finally corrected in the subsequent pleadings. 43 Issues Outlined The letter to counsel stated that this hearing was for the purpose of hearing objections and arguments of coun sel with respect to the proposed plan. That language was lifted from the pre-trial order. I take it that this is really the final hearing in this case, insofar as a school ease ever has a final hearing, as distinguished from preliminary motions and applications for preliminary injunction, and so forth? Mr. Jones: I think that’s correct, Your Honor. Possibly I might qualify that to this extent: Actually, this hearing is set to consider the plan which has been submitted and objections thereto, and evidence and arguments pertaining to the plan itself. It so happens that there is a minimum of dispute be tween the parties as to the facts on which the complaint was based. Your Honor may recall, or I ’m not certain that you’ve, had the opportunity to read the pleadings at all, but you may recall that the Defendant Board of Edu cation admitted that it had, up until this time, been oper ating a segregated school system. Furthermore, the Defendant Board admitted that the Plaintiffs as representative of the class were entitled to relief by reason of that fact. Therefore, I assume that what we’re now doing is pre senting evidence which bears upon the plan, and not evi dence essentially which bears upon any controversy that may have existed between the parties, absent admissions and general agreement between the parties as to the facts on which the complaint is based; and in that posture, I ’m also assuming that the Board is the moving party at this hearing and we will proceed on that basis, unless there is some question raised as to it. 44 Burden of Proof The Court: Mr. Hollowell, do you have any objection to the Board being the moving party? Mr. Hollowell: May it please the Court, it just seems somewhat an anomaly to me that the Board would be the moving party, inasmuch it is my understanding that this is a hearing for the purpose of making objections to the plan, as it has been submitted. I would rather think that it would be the other way around. The Board has done that which the Court directed in its order, insofar as it has brought in a plan. That is not to say that we would go along with the idea that they have done what the Court directed from the standpoint of the compass of the plan. I think it would be just the reverse, as I see it, sir. Insofar as the other matters are concerned—I said “com pass” but I meant “scope” of the plan—insofar as the other matters are concerned, I think I agree with counsel that the basic essentials from the standpoint of the suit itself have been admitted; so, that there is nothing that I see that would need to be submitted, unless it relates to the basis for the plan or something that is referred to in the plan which might call for evidence of a contrary nature, in order to set out effectively what our contentions are; but, other than that, sir, I most certainly agree. Mr. Jones: May I add to my remarks ? The Court: Yes sir. Mr. Jones: In the first place, Your Honor, I think a more orderly presentation of this case can be made by the Board proceeding. That is my first premise. Secondly, if we accept the position that we now have presented a plan and that the question is upon the approval of that plan, then it’s no different from any other proceed ing in which a propounder of a will finds himself with 45 Burden of Proof caveators objecting to it, or a plaintiff in an ordinary case finds himself with the defendant objecting to it. I do not think that this hearing is on the objections. I think the hearing is on the plan and, while, of course, I ’m subject to the Court’s direction, I still think it would be proper and more effective procedure for the Board to proceed in the first instance. The Court: Well, as a matter of fact, the areas of dis agreement, as you gentlemen have indicated, have been narrowed considerably; so, that we have left, not the ques tion of whether the Plaintiffs are entitled to relief, but to how much relief, and to what relief. That results from the admissions which have been made. The Defendant was ordered to present a plan; such plan has been presented. The pre-trial order provided that then, if there were objections, a hearing would be had upon those objections with such evidence as might be heard. I don’t know that it makes a great deal of difference who assumes the burden of proof but, if the Plaintiffs want it, I think I ’ll let them have it. Mr. Hollowell: May it please the Court, I think the preliminary remarks which I might have made have already been made for the record dealing with the matter of the plan itself. The Court: Now, let me make this suggestion for the information of counsel: The question, in addition to what— well, included in the question of what relief the Plaintiffs are entitled to, includes the question of an injunction, if an injunction is necessary. Mr. Hollowell: Bight. The Court: So, I take it that is before the Court at this time? Mr. Hollowell: Yes sir. 46 Objections to Plan The Court: Very well. Mr. Hollowell: May it please the Court, in the Court’s pre-trial order a portion of the prayer of the Plaintiffs was a recital. Therein there was a request that this Board be enjoined from continuing to operate a dual school system in Bibb County, based wholly upon the race and color of children attending school in Bibb County, or continuing to assign children to school in Bibb County on the basis of race or color, and continuing to assign teachers and principals and supervisors and other professional school personnel to the schools of Bibb County based upon race or color, or continuing to designate certain schools as Negro and white, or continuing to appropriate funds or approve funds for curricular and extracurricular activities and other school programs, and from continuing to con struct schools which are to be limited to attendance by one or the other racial group, and making any other distinctions based wholly upon race. And in the alternative the Board was directed to bring in a complete plan, and I emphasize the word “complete”, within a period of time to be determined by the Court, which was done; for the reorganization of the entire school system into a unitary non-racial system, which would in clude a plan for reassignment of all children, etcetera as set out by the order. Now, I submit, Your Honor, that there has not been a complete plan as is requested in the order and directed by the order, and particularly on page 4 thereof, where it says: “Accordingly the defendant Board of Education is hereby ordered and directed to make a prompt and reason able start towards the effectuation of the transition to a racially non-discriminatory school system and to present to this Court on a given date a complete plan, adopted by 47 Objections to Plan said Board, which is designed to bring about full compli ance with this order and which shall provide for a prompt and reasonable transition to a racially non-discriminatory school system in the public school system of Bibb County, Georgia.” Now, Tour Honor, I think a casual look at the plan and the objections thereto would show that, not only was this not done, but also that it was not even intended that it be done. I call the Court’s attention to page 3 of the plan, or even before that, Your Honor, page 2, beginning with the second sentence of the initial paragraph, where it says: “The authority to designate the school or schools to be attended, with the corresponding duty, is vested in the Superintendent, subject to established proce dures relating to transfers, none of which is based on race distinctions, except as such distinction is implicit in the fact that separate schools are provided for the separate races.” So, I say, even in the preamble to the plan, Tour Honor, the Board tells us that this plan is one which, in effect, en compasses separate schools based upon race; and, if it’s in the preamble, certainly there is no question about the fact that it is in the plan itself. Now, the Board gives lip service to the idea of a single unitary system in the last sentence of that paragraph where it says, “It is the eventual plan of the Board to establish a single unitary system of residential areas for school placement, without distinction as to race, but this cannot be accomplished immediately.” 48 Objections to Plan Well, we submit, Your Honor, that the plan which they have propounded here does not purport to set up any such system, nor does it make a beginning toward the setting up of any such system, because when we look through the plan, Your Honor, we find that at the end of the period which is designated by the Board, all we have is a mere transfer plan. If I might take it up by paragraphs, Your Honor, refer ring to the first paragraph of the Plan. I am looking at our objections there. We state that the plan vests the Superintendent with authority or power to administer the matter of the designation of the respective public schools sought to be attended by the students of Bibb, but no cri teria are enumerated by which the Superintendent is to be guided in making such designation; nor is there any pro cedure for appeal from the Superintendent to the Board and from the Board on to the State Department of Educa tion. I would have submitted, Your Honor, or I would submit that seemingly, if they were going to bring in a complete plan, they would have also set up some administrative procedures that would complement the plan. This plan doesn’t begin to do so, even as it is set up. In paragraph 2, Your Honor, the plan recites specifically, “No immediate change will be made in the identification of residential areas, or in the identification of the high school to which pupils graduating from the several grammar schools are assigned, though these designations are sub ject to change from time to time. . . . Except as indicated by subsequent paragraphs.” So, the Board says, “We are going to keep the same seg regated pattern in the grammar schools, with the same racial designations from the standpoint of the areas, which 49 Objections to Plan means that all persons in grammar school, according to this plan, will be assigned to Negro schools and will come from the areas that have been designated as racial areas from which this school is to draw. Then, it sets np the system of how they are going to do that. On page 4 of the plan, Your Honor, and 5—we were on 4 but we move on to 5—particularly as it relates to paragraph 4 on page 5. It says, “The Board will estab lish a period beginning at a date to be announced following the date of the order approving this plan and ending thirty days thereafter as the period in which written applications will be received for transfers and reassignments from one school in the system to the 12th grade of another school in the system for the school year 1964-65.” Anri then it goes on to recite that it will set up certain types of forms for this purpose. I call the Court’s attention particularly to the last para graph, or the last sentence of paragraph 4, where the Board says, “Pupils first entering the system in the 1964-65 school year in the 12th grade in the system will be afforded with out distinction based solely on race the opportunity to request original assignment to the school of their choice in accordance with presently established procedure.” Well, I don’t knowT what “presently established proce dures” are in this particular situation. The Court: That might be developed at this hearing, might it, if there’s question about that? Mr. Jones: May it please Your Honor, may I interrupt counsel for just a moment? I ’m quite confused as to the procedure which we’re following. Up to the present time I ’ve been unable to recognize whether counsel is making an opening statement of his position, to be followed in the usual course by evidence and concluding argument, or 50 Objections to Plan whether he is making a concluding argument on the case. If it’s the latter, then it seems to me it’s quite premature, aside from any other question. We anticipate, before this hearing is concluded, that our plan will be fully explained. We have in mind using several witnesses for that purpose. And then possibly some of these matters which counsel is now questioning would be clarified or at least could be better argued then. Specifically, my interruption of counsel—and I apologize for it but I felt that it was necessary—my interruption of counsel was to find out whether we are in the concluding argument stage of this case at this time or whether we are in some more preliminary stage? The Court: Well, I doubt that we’re in the concluding argument stage, and I imagine he’s simply stating his ob jections to the plan. Mr. Hollowell: This is basically so, Your Honor. Right now we don’t plan to argue the law but to indicate to the Court what we consider to be our objections to this given plan. We submit, Your Honor, that the only place in the whole plan that gives rise to any actual desegregation is the last paragraph or the last sentence of paragraph 4 of the plan, which I have just read; and we would ask that the Court take particular cognizance of that fact. And as to paragraph 5, Your Honor, we submit that the Board should have already done what it says that it pro poses to do from the standpoint of implementation of the plan, so that those enumerations, those provisions, might also come under the scrutiny and attack of the Court in advance of the time that an order would be issued on the plan. We submit also, Your Honor, that whereas in paragraph 6 they purport to take some 8 years in order to be able 51 Objections to Plan to conclude the plan, that in effect it would take about 20 years; and, even then, there would still be only a transfer plan and not a non-raeial plan. Now, if it please the Court, we would like to call the Superintendent to the stand, if he is here. The Court: Mr. Gholson. Mr. Jones: If Tour Honor please, I must register an objection to the Superintendent being called by counsel, presumably as an adverse party1? Mr. Hollowell: That is correct, under 43(b). Mr. Jones: For the purposes of cross examination, and appeal to Your Honor’s discretion not to permit it to be done, because we expect to use the Superintendent and to present various explanations of this plan in an orderly manner. I think it would simply disturb the hearing and create perhaps a chaotic condition in this hearing, if coun sel for the Defendant (Plaintiffs) now is to call the Super intendent as an adverse party; and, if the Court has any discretion in it, I ’m not sure that it does, it may be that it’s a matter of right; but I would like to register my pro test for the reasons which I ’ve stated. The Court: Very well. I imagine he has the right in this instance. The Superintendent is at least the managing agent of the opposition and so far as legally— Mr. Jones: He is actually a defendant himself, for that matter. The Court: Yes. And then, of course, we have no jury; so, so far as confusing the Court, I don’t think the Court is going to get confused in this matter, any more than I ’m already confused. So, Mr. Gholson, take the stand. 52 Julius L. Gholson—for Plaintiffs (Adverse)—Cross M r . J u liu s L. Gholson , a party Defendant, called by Plaintiffs as opposite party, being first duly sworn, testi fied on Cross Examination by Mr. Hollowell: Q. Will yon state your name, sir? A. Julius Gholson. Q. Mr. Gholson, you are the Superintendent of the Bibb County Public School System, are you not? A. That’s cor rect. Q. How long have you served in that capacity? A. For five years. Q. What were you doing from the standpoint of profes sion prior to that time? A. Also in school work. Q. I ’m sorry, sir; I didn’t hear you? A. I was also in school work prior to that time. Q. Where? A. Most of the time in Bibb County. Q. In what capacity? A. Assistant Superintendent for one year prior to being Superintendent; principal of two high schools prior to that; teacher of one of the high schools for about 20 years prior to that. Q. Now, what schools, what two high schools were you the principal of, Mr. Gholson? A. Alexander IV Elemen tary School and McEvoy High School. Q. Both of those schools are located in the City of Macon? A. That’s correct. Q. Now sir, you are ex-officio a member of the Board of Education of this City and County, are you not? . . . Sir? A. That’s correct. No, I am not a member of the Board of Education. Q. I say, ex-officio? A. No, I ’m not an ex-officio member of the Board of Education. As Superintendent I ’m em ployed to carry out the policies of the Board of Education. 53 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Q. Are yon familiar with the policy of the Board of Education! A. I try to be. Q. Were you present at the time that this plan, which has been submitted in this case, was drawn up? A. I at tended several meetings when the plan was discussed. Q. Did you counsel with them in connection with the drafting of the plan? A. What was the question? Q. Did you counsel with the Board in connection with the drafting of the plan? A. I probably did some dis cussion in regard to the plan. Q. Now, I ’ll ask you whether or not you have read and studied the plan? A. I have read the plan. Q. Do you have a copy with you on the stand, or can you get one, so that it might be available to you? A. I think one could be made available. Q. Presently, Mr. Gholson, there are no high schools or grade schools which are attended on a non-racial basis in this City, other than the vocational school, is that correct? A. That’s correct. Q. Now, what is the name of the vocational school? A. Dudley Hughes. Q. Is that the only vocational school that you have? A. No, we have Ballard-Hudson. Q. You consider Ballard-Hudson as a vocational school, is that correct, as distinguished from a high school with a vocational section to it? A. You asked me about the adult program. You have adult classes at Ballard-Hudson for adults just as you do at Dudley-Hughes for the whites. That’s the reason I said we have Ballard-Hudson. Q. I see. I don’t recollect having mentioned adults at all; I may be wrong? A. You said other than adult voca tional education. Q. Did I say “adult vocational”? A. Yes. 54 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Q. I beg your pardon. Let me ask you this question then, Mr. Gholson: is there any other vocational school in the City other than Dudley-Hughes ? A. We have a high school, Ballard-Hudson, which has a vocational program, as does Dudley Hughes. It is not primarily a vocational school but it has a very thorough and comprehensive voca tional program as part of its curriculum. Q. Would you say that the “thorough and comprehensive curricula that you have in Ballard-Hudson can be equated to the curricula that you have in Dudley Hughes, vocation ally speaking? A. It would perhaps be broader and more varied. Q. Let me see, which would be broader and more varied? A. We probably have more offerings at Ballard-Hudson than we do at Dudley Hughes, 2 or 3 additional subjects. Q. Would you have any recollection as to what those 2 or 3 additional subjects would be? A. Yes, they would involve the trade and business; that’s brick masonry, archi tectural drafting and carpentry. Q. None of those are taught at Dudley Hughes? A. No. Q. What is the emphasis at Dudley Hughes? A. On the vocational subjects that fit the needs of the community, more or less, such as they are at Ballard-Hudson. Q. What do you construe them to be, basically? A. Auto mechanic would be one of them. You would have wood work. Under your industrial arts program you would have the various phases of vocational work that’s taught there.. I ’m not an expert on the vocational curriculum. I have someone that represents me in that capacity. Q. Who is that person? A. That’s Mr. Kelley. Q. Mr. who? A. Mr. Kelley. He is the Director of the Vocational Program. 55 Julius L. Gkolson—for Plaintiffs (Adverse)—Cross Q. Are you familiar with the technical skill areas with in the curriculum there, such as electronics, machine shop work, and this kind of thing! A. We don’t offer electronics in either of those high school programs. Q. What is the highest program of electrical work which is offered at Dudley Hughes school? A. They would both be in your industrial arts program, the teaching of electric ity as part of those programs. We offer electronics in the adult vocational program and we have—that’s been inte grated, as you know. Q. I see. Suppose there were some other course which is given at, say Ballard-Hudson, that is not given at Dudley Hughes, would one be able to make a transfer to Dudley or to Ballard Hudson? A. We have had no such request. As I told you, we try to set up the curriculum at each school based on the needs of the pupils and the demands in the com munity for those needs. Q. Would you answer the question, sir? A. What was the question? Q. The question was, if there was a subject, which was given at Ballard-Hudson which was not offered at Dudley Hughes, would one be able to make a transfer from one school, Dudley Hughes, to Ballard Hudson. A. The an swer is no, and let me answer more broadly. We have in tegration at the present time in every form, in every school, with the exception of your adult vocational education pro gram—not integration but segregation. Q. Then, as I understand it, there is nothing within this plan, which seeks to change that this time, is that correct? A. Within which plan? Q. In the plan which has been submitted by the Bibb County Board? A. There is, yes. 56 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Q. What is the plan as relates to that? A. Our counsel wants to present the plan to you and he cannot present the entire plan through me. Q. Mr. Gholson, I ’m asking you, sir, if you know what the plan is as relates to the vocational schools in Bibb County? A. The plan would be that any student in the 12th grade could make application to go to a school other than the one that they have been attending. Q. So then, the vocational school comes within the scope of all of the other schools, that is high schools, that are the subject matter of the plan, is that correct? A. It does. Q. So, only in the 12th grade can persons even apply for attendance at Dudley Hughes, say, if he had been in the 11th grade in Ballard-Hudson or Appling, is that correct? A. If he would be in the 12th grade next year, he could apply. Q. He could apply? A. Bight. Q. Isn’t it a fact that what he would have to do is to make his application to Appling or to Ballard-Hudson and then request a transfer? A. No, according to the details of the plan which will be spelled out to you in our counsel’s presentation, that is not true. Q. Well, what do you understand to be the procedure? A. Well— Q. I mean, you’re the one who is going to have to ad minister the plan, is that not correct? A. No. Well, yes, officially. I ’m going to designate, to delegate that to one of my assistants, who will be coordinator for this. But any student wishing to transfer from Ballard-Hudson or Ap pling to Dudley Hughes would make application to me at the Board of Education, and that application would be properly processed; and this procedure will be explained in detail to you if— 57 Julius L. Oholson—for Plaintiffs (Adverse)—Cross Q. Well, would you show me in the plan where it says what you have just said! A. Yes, that’s part of the plan over here with administrative procedures that hasn’t been spelled out. Q. Well, I mean, are they written out? A. Yes, they’ll be supplemented. Q. I ’m not asking—excuse me—I’m not asking, Mr. Ghol- son, what will be spelled out. I ’m asking about the plan which has been submitted, a copy of which you have. Will you show me in the plan where it says what you have just said relative to application of one wanting to go to Dudley Hughes Vocational School? A. All right. Look on page 5, paragraph 4: “The Board will establish a period beginning at a date to be announced following the date of the order approving this plan.” Mr. Jones: Your Honor please, I again apologize for interrupting: I think both the witness and coun sel are confused, by reason of failure to separate the adult vocational program from the vocational courses which are offered at Ballard-Hudson and at Dudley-Hughes; and it may help to straighten the situation out if that distinction could be. made both in the questions and the answers. I myself am con fused as to what the witness is saying because I don’t know what he’s directing his remarks to. The Court: Very well. By Mr. Hollowell: Q. Well, maybe I can clear it up by asking—I mean I don’t have any problem at that point but if counsel thinks there is, I might ask this and then go back to the problem which we were addressing ourselves to : 58 Julius L. Gholson■—for Plaintiffs (Adverse)—Cross Mr. Gholson, is there a daytime adult program at either Dudley Hughes or at Ballard-Hudson? A. There are a few classes for adults in the daytime for specials. If a group of 10 or 15 apply to take something in the daytime, such as making cakes or fixing hats or something, if there’s room available, they go ahead.and try to give it. Q. Well, in connection with the questions that were asked, you do not construe the adult program to be a part of the regular high school program, which includes your grades from 12 down to what—9? A. Your senior high, 12 through 10, and then 9 and 8 for your junior high. Q. So then, you’re not talking about anything relating to the adult program when you speak about the procedure for one who was in the 11th grade or who is in the 11th grade now and who attends Ballard-Hudson now, and who would want to get into Dudley Hughes, come September, ’64-65? Do you have any question about that? A. No, the adult vocational program is separate from your regular high school program. Q. All right; now, my last question was, based upon the information that you had given to a question asked, was show me in the plan where it says that one who falls in the category just mentioned, a present 11th grade student wanting to go to Dudley Hughes next year, could apply directly to Dudley Hughes? You were about to point that out in paragraph 4? A. They would not apply directly to Dudley Hughes. Under the plan it has not—it is part of this plan but not spelled out in it—they would apply to the Superintendent and the Board of Education. Q. Well, would you look at the beginning of the first full sentence on page 5 and see if that doesn’t show what the procedure is? Doesn’t it say, “Pupils will register for new term at the school which they last attended”? A. Yes. Julius L. Gholson—for Plaintiffs (Adverse)—Cross Q. And that will be the procedure in all grades, even in cluding the 12th grade, unless a person is coming into the school system for the first time; isn’t that correct? A. No, we have pre-registration before the beginning of a new school year. That’s being done in some areas now. Let me look over the plan and I ’ll try to refer you to the proper place. (Witness referring to plan) . . . It says, the last sentence says, “They will provide full implementation of the plan and, as set forth in paragraphs (4) and (6) here of, will be applied without distinction or discrimination because of race.” Q. All right, look at paragraph 4, Mr. Gholson: “The Board will establish a period beginning at a date to be announced following the date of the order approving this plan and ending thirty days thereafter as the period in which written applications will be received for transfers and reassignments from one school in the system to the 12th grade of another school in the system for the school year 1964-65” . . . Now, doesn’t that to you import the fact that even in the 12th grade the individual would apply to the school at which he had been in attendance during the 11th year and then would have to be transferred? A. No, it means that he would apply at the office first. Q. What office? A. At the Board of Education office, office of the Superintendent. Q. For what purpose? A. Read on, on page 6, and will prepare and supply written forms for that purpose, together with a statement of the rules of procedure.” And the rules haven’t been explained to you. They are part of this plan but have not been brought out into the evidence yet. Q. Well, where would he get that form? A. He would get it from the Superintendent or his representative at the Board of Education. 60 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Q. So, this is something that yon are saying is an adden dum, so to speak, to this plan but which has not been sub mitted; is this your contention! A. As I understand it, that is correct. Q. So that, the plan does not mean what it says when it says back there in paragraph 4 that the persons would first be assigned to the school which they had been in at tendance at, unless they were entering the system for the first time! A. Well, that’s automatic. That’s just the policy that you go to the same school again unless you get a transfer. Q. I see and the policy has been and is that all white students are assigned to white schools and all Negro stu dents to Negro schools, isn’t that correct! A. That’s cor rect. Q. And nothing has been done in this plan to change that except to provide for a system of transfers, other than for persons entering the system for the first time, isn’t that correct! A. That’s correct. Q. Now, you don’t have zone lines as such, is that cor rect! A. No, not as such. Q. What is your substitute for zone lines! A. The Superintendent assigns pupils to the various schools based on the school capacity and the availability of transportation to the schools. Q. On a racial basis! A. Yes. Q. And there’s nothing in the plan to change that, is there! A. Yes, the opportunity here might change that. Q. You mean the opportunity for them to transfer out! A. Yes. Q. If they file an application to transfer and if it is ap proved by you as the Superintendent upon recommendation of the principal, is that correct! A. Well, the principal 61 Julius L. Gholson—for Plaintiffs (Adverse)—Cross gives certain information but the Superintendent would as sign the pupils. The pupil would be assigned, however, based on the capacity of the school. Q. Well now, when you say “based on the capacity of the school”, you’re not suggesting that if you have an area where there are mixed racial students living and there is only one school in the immediate area and that school is one which is a white school, that you would assign a Negro child to that school, even though he might live next door, isn’t that true? A. If that child was in the 12th grade and applied for transfer and it was deemed that he met the criteria, we would assign that child to that school, unless some other school was less crowded. Q. All right, now, if he weren’t in the 12th grade, then what? A. Then, according to our plan, the child would go to the school and grade that he’d been going to. Q. He would go to a Negro school, even though he lived next door to a white school, if he was not in the 12th grade? A. To the school and grade which he had previously at tended. Q. And vice versa would be true, would it not, Mr. Gholson, that if this white student lived next door to a Negro school, and he was not going to be in the 12th grade in ’64 ’65, he would not be assigned to that Negro school but would be assigned to the nearest white school in which there was sufficient space for him? Is that not true? A. That’s true. And Mr. Hollowell, we put that in the record when I answered that back quite some time ago, that we were segregated in every phase, except adult vocational educa tion. Q. Now, insofar as the transfer is concerned, you said “If he meets the other criteria”. Now, what are those criteria? This is for transfer? A. There are certain things 62 Julius L. Gholson—for Plaintiffs (Adverse)—Cross tliat have to do with eligibility and what I just mentioned to yon, availability of space, capacity of the school, trans portation, that are part of this paragraph that will be pre sented. Q. That will be presented but which has not yet been filed, is that correct? A. I t ’s part of the plan. It just isn’t spelled out in it. Q. Well, you confuse me a little, Mr. Gholson: You mean by it being a part of the plan, you are talking about the reference which is made in paragraph—I believe it is 4—implementing— A. Top of page 6, page 6. Q. Yes, the implementing procedures? A. The imple menting procedures. Q. I see. Have you actually prepared some implement ing procedures? A. Yes. Q. Are they here in the courtroom, to your knowledge? A. Our attorney would have them, if they are. Q. When were those prepared? A. During the same time that your plan, following the plan, to implement the plan. Q. You don’t know why it was not filed? A. No. Q. Well, let me ask you this about transfers: Do you have a copy with you of the annual report or announcements for ’63-64? A. I think one is available. Mr. Jones: Here. (Mr. Jones handing copy of document referred to, to witness.) By Mr. Hollowell: Q. Let me call your attention to page 104, Mr. Gholson, if I might, please, and ask you to look at paragraph 2(a) (4), 2(b)(4); paragraph 2, sub-paragraph b-4, and let me ask you if that paragraph would pertain as to the plan, the paragraph reading: “All students transferring from 63 Julius L. Gholson—for Plaintiffs (Adverse)—Cross one school to another must present a certificate of transfer- issued and signed by the principal of the school from which the transfer is being made.” Now, is this the standard procedure that is made refer ence to in the plan! A. I believe the implementing rules for the plan make a slight change in this particular rule. This rule is put in, is utilized at the present time to keep one—in order to equalize the attendance; so, you would not have too many pupils for one reason or another trans ferring to another school. Q. You mean in order to equalize the attendance? A. Yes. Q. Within the racially designated schools, is that cor rect? A. That’s correct. Q. Thank you. A. And that’s the administrative pro cedure that is used to that effect. Also, that enables a princi pal at the beginning of the school year during the summer to know about how many people would come in. Q. Now, let me ask you this for my clarification and for the clarification of the record, Mr. Gholson: Suppose a student moves from down here in Cochran to Macon, Georgia, during the summer, and that student is in the 12th grade, having graduated in May, ’64r—from the 11th grade in the high school in that county: To what school can he apply? A. He would apply to the. Superintendent and we would assign him to the school of his residence and his transcripts and what he was taking having some bearing on that. Q. Now, would he be available—or strike that and let me put it this way: Would any of the schools, other than Ap pling and Ballard be available for him to attend? Mr. Jones: Does counsel mean to refer to the pre existing program or to the proposed program? 64 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Mr. Hollowell: We’re talking about the plan, sir. The Court: The proposed, I imagine; he got up to May ’64 in the question. Mr. Jones: Thank you. The Witness: Well, I ’m glad because I was an swering it on the pre-existing one. By Mr. Hollowell: Q. Well, I ’m sorry, we were talking about a person who graduated in May, ’64? A. Well, he hasn’t graduated yet. Who will graduate ? Q. Well, this is the hypothetical? A. Yes. Q. A person graduates in May ’64 in Cochran, Georgia, and he moves to Macon, Georgia during the summer—this was the hypothetical—I say, what high schools are avail able to him to attend ? Q. (continuing) —and this is a person of color? A. He has already graduated at Cochran. The Court: We assume so, yes. By Mr. Hollowell: Q. He is graduated or he is promoted from the 11th grade to the 12th grade? A. What is your question again? I don’t understand the graduating in ’64. If he graduated in ’64, he’s not eligible. Q. John Jones is an 11th grade student in Cochran, Georgia and has passed to the 12th grade in May, ’64 and thereafter during the summer of ’64 moves to Macon, Georgia; he wants to go to school in Macon in September, ’64; he will be in the 12th grade; he is a person of color, a Negro: What schools are available to him to attend? A. He may attend Ballard-Hudson or Appling, depending on 65 Julius L. Gholson—for Plaintiffs (Adverse)—Cross where liis residence is. Now, you see, he has not graduated. You said he has graduated in ’64. Q. Well, I don’t think that the last statement referred to graduation at all, Mr. Gholson? A. He passed instead of graduated. That’s what you meant. Q. Your answer is, as I understand it, that only Ballard- Hudson and Appling would be available to him for assign ment? A. Under the old rule. Q. We’re talking about ’64, sir? A. Under the— Q. We’re talking about now, Mr. Gholson. I don’t want to cut you off but I want to make it clear that the hypo thetical refers to a person going to school in September, ’64 under this plan? A. All right. That person may apply to the Superintendent and, if he desires to go to Dudley Hughes Vocational or to any of the other schools, they may make application for i t ; and we would go through this pro cedure that has been implemented to carry out the plan ; and it’s possible that he could attend any of the high schools in the City that he so desired; it’s possible. Q. And this would be dependent upon approval which you would make? A. That’s correct. Q. All right, now, how many years do you construe it to require before even a person in the first grade would be able to effect a transfer out of a segregated system? A. I believe under this plan we mentioned, it would take nine years, I believe. Mr. Hollowell (addressing Mr. Jones): Sir? Mr. Jones: I ’m sorry, I was talking to myself. What I said was that a first grade student would meet the descending number of grades at some point. I assume that was your question. 66 Julius L. Gholson—for Plaintiffs (Adverse)—Cross By Mr. Hollowell: Q. Well, the point is, how many years would it take a person who is beginning in the first grade in 1964, Sep tember, to arrive at a point where he would be able to transfer out of a segregated system? A. Well, we’ll have to figure it for you, come down and see what they are. (Witness figuring) . . . He would meet it on the 4th year. Q. Sir? A. He would meet it on the 4th year. Q. On the 4th year? A. As he passed. Q. How do you explain that, sir? A. Well— The Court: That’s a matter of mathematics, isn’t it? Mr. Hollowell: Sir? The Court: Isn’t that a matter of mathematics? Mr. Hollowell: Well, I think it’s a matter of mathe matics and then it gets to be a matter of interpreta tion also. I wanted to ask him another question re lated to that. Q. Maybe without having to do the figuring, Mr. Gholson, let me ask you this: As you understand the plan, is there any time when an individual seeking to attend in any grade and wanting to go to a desegregated school could do so initially, other than by applying at the segregated school which he would be attending and requesting a transfer, unless he fell in the category of being a student coming into the system for the first time? . . . Do you understand the question? A. Yes. It would take the 9 years that we mentioned. At the end of that time you would have segrega tion in all of the—I mean integration in all of the classes. Q. Now, would you, sir? Suppose no one sought a trans fer for 9 years, for those 9 years? A. Well, you would have had the opportunity to. 67 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Q. Well, we’re not talking about the opportunity. Sup pose no one sought to transfer, the system would be just as segregated 9 years from now as it is today, wouldn’t it? A. If no one sought a transfer, if no one— Q. Unless, of course, there were persons who were com ing into the system for the first time and they happened to have been assigned; isn’t that true! A. That’s correct. Q. So then, really the only thing that we have is a trans fer plan under your statement, isn’t that correct? A. That’s the way we accept admittance to the schools, by transfer. Q. Now, there is some reference here to the fact that no effort would be made to do anything about the prayers re lating to the desegregation of the system as relates to teachers, principals and other personnel: Do you have in your mind any given time when it is anticipated that this would in fact take place? A. We would give—the plan says that consideration would be given to it after a period of transition has been effectuated. Q. What is the contemplated period of transition, as you understand it? A. Your most important period of transi tion would be the beginning. Q. Well, what constitutes the beginning, insofar as your statement is concerned? The first quarter, the first grade period, the first semester? A. I would say the first several years. Q. The first several years? A. Certainly the first year and maybe the second and third, depending upon the ex tent. Q. In other words, nothing less than three years? A. I would not say that. It depends on the circumstances. Q. You make the assignments of teachers, do you not? A. Yes. Q. You hire the personnel of the ministerial employment nature also, subject, of course, all of this, to the approval of 68 Julius L. Gholson-—for Plaintiffs (Adverse)—Cross the Board! A. I recommend to the Board for the employ ment of teachers and principals. Q. And principals? A. The Board elects them. Q. How about all of the other personnel that works with the Board of Education? This too? A. Most of them, all of them come under our jurisdiction, but such as—some of the custodial staff, some of your lunchroom workers, the principals recommend those and are responsible for them. Q. Now, you actually, not only hire the teachers and hire this personnel, you also assign them too, do you not? A. Yes, we assign them based on existing vacancies as a gen eral rule but we do assign them. Q. What do you see as a problem insofar as the admin istration is concerned of making interracial assignments of teachers and principals in the schools? What administra tively do you see as being any different from making racial assignments? A. Well, your administrative problems would develop from the acceptance, relationship and ac tivity in the various positions and schools that they were assigned to. You would have— Q. I mean, this is anticipatory, right? A. That’s right. Q. But insofar as the administration is concerned, there’s no difference in the time that would be required to draft up a plan of placement, insofar as teachers, principals and other personnel are concerned, on a racial as distinguished from a non-racial basis; isn’t that true? A. Oh yes, that would upset the whole—we have schools where teachers have been there 30 and 40 years; their faculty is a per manent faculty there; and it would upset the entire admin istration set-up to start shifting teachers from one school to another school. Most of them are there because they can teach in that particular school. Q. Well, what I ’m saying is, from the standpoint of the process of making the assignments and promulgating it, Julius L. Gholson—for Plaintiffs (Adverse)—Cross there would be no difference, isn’t that true? A. There would be a difference because of the results, what would happen— Q. We’re not talking about results now, we’re talking about action, Mr. Gholson; we’re talking about administra tive detail, the process of getting out the assignments, pub lishing them, mailing them, these kind of things: there would be no difference, would there? . . . Would there? A. No, you’d just have a difference of a name, that’s all. Q. So that, the only thing that you are saying is that, if there was some change in the structure of the assignment of teachers from a non-racial to a racial basis, that there might be some administrative problems because of some dislike which might be manifested by some teacher or some principal and the like, is that correct? A. Well, there are many things that— Mr. Jones: If Your Honor please, I think this might be a proper time, if counsel will excuse me for a moment, to say that the Board of Education does not recognize that the Plaintiffs in this case, who are school children suing through their parents or guardians as representative of a class, have any voice to require certainly non-preferential treatment of ad ministrative personnel of the system; and, in my opinion—and I think the Board will contend here— that applies also to teacher personnel, that there is no right, no civil right, no right to be enforced or to establish in the students, who are here suing as a class, to obtain any direction from the Court to the school system, the Superintendent or the Board, as to the assignment of teachers in the system or princi pals in the system as between the different schools. 70 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Furthermore, that the teachers are not here repre sented as a class, speaking or suing in their own behalf; nor is the administrative or other personnel of the system. Now, I did not want to debate that question now but I did think it would be a good time to state for the record the Board’s position in connection with 'it. The Court: Very well. Mr. Hollowell: I would submit, Your Honor, that such a contention would come a little late, the par ties Defendant having already answered and, of course, it becomes a matter of law anyhow. So, I don’t think it will be necessary for us to take the time at this time to address ourselves to it, but I will address myself to it when we make our arguments. The Court: Very well. Mr. Hollowell: Mr. Joiner, do you remember the last question? The Reporter: “So that, the only thing that you are saying is that, if there was some change in the structure of the assignment of teachers from a non- racial to a racial basis, that there might be some ad ministrative problems because of some dislike which might be manifested by some teacher or some princi pal and the like, is that correct?” Answer: “Well, there are many things—” By Mr. Hollowell: Q. What are some of those things? A. They are the factors that involve the ivhole transition that we re talking about, Mr. Hollowell. 71 Julius L. Gholson—for Plaintiffs (Adverse)—Cross Q. Well, what are they? A. No. 1 is a tremendous social change. Q. All right, you have live teachers who go from one, from some Negro school into some school that’s white or vice versa, and you contemplate—what do you contemplate here that you are saying would give some reasonable ad ministrative problem? A. Well, it’s the change of our entire system, our entire customs and traditions; and they involve all kind of psychological consequences, and that’s been proven on many, many occasions. I don’t know— Q. It has? I t ’s been proven in many, many cases that they also don’t occur, except where the administration fails to do what it ought to do also, isn’t that true? A. I don’t know that it is. Q. Do you have any specific reference to anj ̂place where you say that this has happened many, many times? A. Yes, several of your big cities, Washington, New York and so on. Q. What happened in Washington? A. When this prac tice was put into effect, they had all kind of disciplinary problems and administrative problems. Q. What practice? You haven’t had any practice such as you have in this plan? A. Where you had white teachers teaching the Negro students and Negro teachers teaching the white students. Q. What happened? A. Discipline, lack of discipline and many other problems that attached themselves to it. Q. Do you know whether or not disciplinary problems were prevalent prior to that? A. Not to the same extent, from what I understand. Q. What other problem would you suggest would be at hand? A. The main one is psychological and, as I men tioned to you, the transition, the shock of doing something 72 Julius L. Gholson—for Plaintiffs (Adverse)—Cross that’s different from what’s been the custom and part of the custom and tradition for many, many years. Q. All right, so the shock from the transition will have a psychological effect upon teachers and students; this is what you’re saying, is that correct? A. Yes. Q. Sir? Sir? A. That’s correct. Q. And this is what you say is a justification for a delay in the establishment of a truly and complete plan of desegregation of the total school system, is that correct? A. I didn’t say that at all. Q. Well, I ’ll put it this way— A. I answered your ques tion. Q. All right, then I ’ll rephrase i t : This is what you say is justification for a delay in the integration or desegrega tion of the teachers and principals and other personnel in the public school system of Bibb County; is that an ac curate statement? A. I didn’t say that. Q. Well, I mean is it? A. I say that was the problem that would, that I saw, which would accrue from that prac tice. Q. I see. And how long would you suggest that this prob lem would continue? A. I have no idea. Q. No idea? A. No. Q. You really never known until you try, do you? A. You do not. Q. Do you see any other problems that are inherent? A. I ’m not prepared to discuss them at this time. Q. By that you mean that you don’t think of any at this time? A. I mean there may be some others but I ’m not prepared to discuss them at this time. Q. Well, what I ’m saying is, when you say you’re not prepared to discuss them, you’re saying that you don’t or none other come to you at this time; is that substantially 73 Julius L. Gholson-—for Plaintiffs (Adverse)—Cross what you’re saying? A. Xu I can think of some more if you want to go into it. Q. Well, will you tell me what they are? A. If you want to go into it. Q. That’s what I’m asking? A. Well, you could have all kinds of problems as far as your interrelationships is con cerned. Q. What do you mean by “inter-relationship”? We live interrelatedly, do we not. Now, what do you have refer ence to? A. What is your question now? Give me your question. Q. I asked you what other problems do you see as a justi fication for delaying the desegregation of the school staff in your system? A. Well, during the period of transition, to begin with, it’s a terrific impact on the whole community there, and it would create problems there of adjustment, psychological, discipline and others, that would just add a great deal. Q. What are these others? A. That would add a great deal of chaos and disorder and confusion to a period of transition. Q. What are these others ? A. Those are the main ones that I mentioned to you. Q. I see. Well, what are these? A. Psychological, ad justment, social change, discipline; the same ones that have existed in the places that I mentioned to you. Q. You have disciplinary problems in all of your schools now, do you not? A. Very few, very few. Q. You have disciplinary problems— A. Nothing com pared with places where this has been done, particularly in the initial stages. Q. What have you, what reports, what studies have you read and studied which form the basis of your conclusion ? A. Oh many. 74 Julius L. Gholson—for Plaintiffs (Adverse)—Direct Q. Could you name a few? A. Many of your periodicals. I ’ve talked to some of the Superintendents and read.— Q. What Superintendents have you talked with? A. Read from the U. S. News and World Report. Several from up in cities that were in the area there. Q. What cities? A. I don’t recall the cities at this time. That took place in a convention that I attended, a profes sional meeting. Q. A special meeting? A. Professional meeting. Q. Oh, professional meeting; you had the occasion to sort of kick these things around with them, is that correct? A. Where we were talking school problems. Q. And you say you’ve read the U. S. News Report and ■some periodicals relating to i t ; do you remember any specific ones and by whom they were written? A. Not at this time. Now, if you would like for me to give you a study of it, I can take time and work it up, but I am not prepared to at this time. Q. I don’t believe there are any further questions, Mr. Gholson. The Court: Do you wish to examine him now or later, Mr. Jones? Mr. Jones: I ’ll ask him just one question right now, if Your Honor please. Direct Examination by Mr. Jones-. Q. Mr. Gholson, you have been asked a number of ques tions which seemed to me to call for an answer as to the Board policy or the school system’s policy on some of these matters: Do you make the policy of the Board or do you carry out the policy of the Board? A. I carry out the policy of the Board. 75 Julius L. Gholson—for Plaintiffs (Adverse)—Recross Q. Who has responsibility for making the Board’s poli cies? A. Members of the Bibb County Board of Education. Mr. Jones: I have no further questions, Your Honor. The Court: Very well. Mr. Hollowell: You may come down, sir. The Court: We’ll suspend now for 10 minutes. Mr. Jones: You understand, Judge, that I expect to put Mr. G-holson back on the stand? The Court: Oh yes. Recess: 11:00 AM to 11:10 AM—April 13, 1964 The Court: All right, Mr. Hollowell. Mr. Hollowell: Your Honor, there are just a couple of other questions that I think I ’d like to ask Mr. Gholson and, if he’ll take the stand again, it might save recalling him later. The Court: All right. Recross Examination by Mr. Hollowell: Q. Mr. Gholson, do you know how many white high schools and how many Negro high schools there are? A. Yes. Q. How many? A. We have 8 white schools, high schools, and 3 Negro high schools. Q. How many junior high schools? A. That included the junior and senior divisions. Some of them are not separated by division. Q. Do you know how many students there are in the white high schools and how many students there are in the Negro high schools, junior high schools and the like? A. I believe last year there were approximately 8,000 white high school students and about 4,000 Negro high school students. 76 Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross Q. And how many white elementary schools are there? A. I believe we had 26 elementary, white elementary schools. Q. And Negro? A. Negro, we had 14. Q. Do you know approximately how many students there were in the respective schools? A. I believe in the ele mentary schools we had approximately 15,000 white and 9,000 Negro. Q. How many schools do you have in which you have double sessions? A. We do not have any double sessions at the present time. Q. That is true both on the high school and the elementary school level; is that correct? A. To my knowledge, yes. Q. Very well; thank you. Mr. Jones: That’s all. Mr. Hollowell: I understand Dr. Weaver, who is the President of the Board, is not here but Mr. Atkin son who is the Vice-President is here; is that cor rect, Mr. Jones? Mr. Jones: That’s correct. Dr. Weaver, of course, is in town but he’s not here in the courtroom. How ever, Judge Atkinson is here. Mr. Hollowell: Mr. Atkinson, please take the stand. J udge M allory C. A tk in so n called by Plaintiffs as ad verse witness, being first duly sworn, testified on Examination by Mr. Hollowell: Q. Mr. Atkinson, how long have you been the Vice-Presi dent of the Board ? A. I can’t tell you exactly, 4 or 5 years possibly. Q. How long have you been on the Board? A. I came on the Board first 20 years ago, in 1944, in an ex-officio capac- 77 Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross ity; and I went off of the Board in that capacity at the end of 1954 and was elected to membership on the Board in May, 1955, and have been on it ever since. Q. So, except for one year, you’ve been on the Board for about 20 years or about 19 years? A. No, except for about 3 or 4 months. Q. 3 or 4 months? A. Yes. Q. So, we can say in round figures about 20 years you’ve been on the Board? A. That’s correct. Q. You’ve been familiar with the procedure and policy of the Board during that period of time? A. I would say so, yes. Q. Have you ever served as the President of the Board? A. I have not. Q. Mr. Atkinson, you are in what business? A. I am professor of law at Mercer University. Q. How long have you been out there? A. Since 1955. Q. As professor of law and as a member of the Board you have had the occasion no doubt to study most of the cases relating to public school desegregation, is that not correct? A. Yes, I have had occasion to review them. Q. You’ve discussed them, I would presume, with both members of the Board as well as with counsel for the Board, is that correct? A. It depends on what’s meant by “dis cussion”. If you mean, have I entered into any argumenta tive discussion, I frankly can’t recall one. I ’m sure that in discussions those cases have been mentioned and reference has been made to them. Q. Reference, I presume would have been made to them during the time that the plan was in the process of being drafted, wouldn’t you say? A. Well, I did participate in the work that was done toward drafting this program. I would not be prepared to testify as to just what extent we 78 Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross discussed any particular provisions of any ease. I ’m quite sure we were all mindful of those cases. Q. How many other lawyers are there on the Board? A. "Well, the Ordinary of the County and the two Superior Court Judges who are residents of this County, of course, are lawyers. Mr. Miller, the Secretary of the Board, is a lawyer, and at the moment I believe that’s all. I don’t know whether I ’ve overlooked anyone or not; I hope not. Q. And then, you have a lawyer for the Board, is that correct? A. That’s correct. Q. In the person of Mr. Jones? A. None of us make any effort to serve in a legal advisory capacity to the Board. Q. How many members are there on the Board? A. Well, we grew when we had an extra judicial post set up here. I believe it’s 15 now. Q. So, roughly, a fourth of the members of the Board are lawyers, are they not? A. There may be 16. There are 4 ex-officio members now, and I believe the original Board was 12. Q. So roughly, a fourth of the members of the Board are lawyers? A. Yes, I would say so or have had legal experience and background. Q. Could you tell, me, Mr. Atkinson, whether or not there were any steps taken toward desegregating the public school system of Bibb County and Macon, the City of Macon, between 1954 and the time that the subject suit was filed? A. By “steps taken”, do I take it you mean, was any action taken in that direction? Q. Or any plans or suggested plans drafted, whereby the system sought to comply with the 1954 decision? A. I would say no plans have been presented prior to the ones with which you are presently familiar. 79 Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross Q. Would it be a fair statement to say that the Board, of course, bas been aware of the existence of the ’54 decision since its publication? A. I think that’s correct. Q. So, nothing was done to comply until such time as the instant suit was filed? A. 1 say, that depends on what you mean by what was done. I say no steps were taken; if that’s what you mean by it, your assumption is correct. If you say “nothing was done”, that covers a little bit wider field. There was concern, there was discussion, there was study, but there was no action taken, if that’s what you mean. Q. Well, I would say that’s a very good lawyer answer, sir. What I mean by “nothing” was done, Mr. Atkinson, is that at no time during that period were there any steps taken to bring about a desegregated public school system in Bibb County? A. That is correct. Q. You have heard the testimony of Mr. Gholson, have you not, this morning? A. I have. Q. Insofar as the answers which he gave interpreted the provisions thereof, do you recollect any differences of opin ion that you would have? A. Well, I will have to state that I don’t think I can give a firm response to that, be cause it seemed to me upon occasion Mr. Gholson became confused as to what was meant between the adult vocational program and the high school vocational program in the high schools, and between the system which has been in existence in the past and the one that is contemplated in the present. I think Mr. Gholson was asked to answer questions of policy, which he probably was not prepared to answer; and I can not say that I subscribe entirely to what he said. But if you ask me do I recall any specific thing that I would take a contrary view on, I do not. Q. Well, maybe for clarification, since you have been on the Board for approximately 20 years, I might clear up 80 Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross for the record, if there is any question about it, whether or not the adult vocational program is in any wise a part of the plan which has been submitted? A. My understand ing is that it is not. My understanding is that the adults, that we consider that the adult vocational training program does not need to be brought within the plan. It is already contemplated, it is already provided that it shall be operated without any discrimination on the question of race. Q. Do you know whether or not there has been any pub lication of this policy? A. Yes sir, there has. Q. I believe the other thing you said there was some ques tion about related to what? A. Oh, I think there was confusion at one time or another as to whether or not, when a question was directed to him, it was applicable to the past years under our past practices or under the opera tion under the contemplated plan. I ’m not sure he was en tirely clear on that from time to time. He may have been or may not. Q. Well, maybe to further clarify it, I will propound this hypothetical: A child, this is under the plan, sir, who is in the 11th grade at Ballard-Hudson High School, in the year, school year ’63-64, and desires to go to Lanier in the year ’64-65 beginning in September, under the plan would have to make his application—or strike that—under the plan would have to initially be assigned to the high school that he attended for the year ’63-64, and then make an ap plication through the principal for a transfer from that school to Lanier for the school year ’64-65: Is this your understanding, sir? A. That is substantially my under standing. You inserted one requirement that I don’t quite follow. If he is already enrolled—at which school, did you say, Ballard-Hudson? 81 Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross Q. It doesn’t matter, either one, Ballard-IIudson or Ap pling? A. If he were already enrolled there, I don’t know that he would have to he registered there for another year. If he were enrolled at Ballard-Hudson and sought to trans fer to Lanier, he would have to file an application for such transfer. Q. But the students are reassigned each year, are they not? A. I don’t know that they are reassigned. They are advanced. Their promotion cards advance them to the next grade. I don’t think either a teacher or a principal or a superintendent goes down the list of 30,000 children and says “Now, you are assigned to such and such a school.” Perhaps the effect of it is the same. Q. I see. Well now, on page 5 of the plan, the first full sentence on the page says: “Pupils will register for new terms at the school which they last attended”. So that, this is the procedure under the plan, is it not? A. That would be the procedure under the plan. Yet, I do not think it matters because the application will go wherever it’s presented originally, whether it’s to the principal of the school he last attended or to the Superintendent’s office, it will go the same route. Q. Well, in the first instance he would apply, he would have to register at the school last attended? A. I take it so from what you read there. Q. And is there any question about it? A. No, there’s not any question in my mind. As a matter of— Q. Excuse me, were you finished? A. I said no question on my part about it. I don’t think it matters. I t’s form only. Q. Let me ask you, a student coming in for the first time into the school system, taking our hypothetical of the youngster who was enrolled in Cochran in the 11th grade Judge Mallory C. Atkinson—for Plaintiffs (Adverse) ■—Cross for the year ’63-64, and who was promoted to the 12th grade in May of ’64 and who moves to Macon during the summer of ’64; that person would be in a position to make an ap plication at any school, any high school, for the 12th grade, as you understand the plan? A. There again, perhaps I ’m indulging in liberties that the typed word won’t permit. I think he could apply to any school. He certainly could apply for attendance at any school. That application might very well be subject to being considered by the Superinten dent who is charged with the assignment of all pupils. But he could apply, for instance in Lanier, just as well as he could apply to Appling, if that answers your question ? Q. And presuming that there was no reason other than race for him not to be assigned to say one of the presently called “white schools”, he would be able to attend such a school if he made such an application, is that correct? A. That is my understanding. Q. This is what you believe is contemplated by the plan? A. Exactly. The racial factor would have no bearing what soever in that situation. Q. In the 12th grade only? A. That’s right. Q. But now, coming for any other grade, why, he would be assigned to one of the Negro schools? A. Until that grade is included in the plan. Q. Do you know why the implementing procedures for the plan, that is the administrative procedures, were not submitted along with the plan? A. I will simply state I know of no reason why they should have been. Q. Should have been or shouldn’t have been? A. I say, I know of no reason why they should have been submitted. The plan has been submitted, it was submitted in rather general terms, on the theory that that was to the best advantage of all concerned. Judge Mallory C. Atkinson—for Plaintiffs (Adverse) -—Cross Q. What advantage do you see in not making the plan complete from the standpoint of the general administra- tive policies, as relates to the plan? A. I think any time we start drawing a code of rules for the administration of any program, we find that the more rules we put into it, the more opportunity for dissension and trouble to be caused. I am inclined to think a plan with general rules, coupled with good faith, is of vastly more value than a many-paged code of regulations, which inescapably offer loopholes and possibilities for circumvention. Q. Would you suggest that where there is no procedure set out, other than in a very, very general and loose way, that the prospects for—using your term here—“loopholes” would be even more greatly present? A. I think if it were left in that way as a final proposition, yes; but I don’t think it needs to be left that way, and it was never contemplated to be left that way. Q. Well, inasmuch as the plan is a document to be con sidered by the Court, wouldn’t it seem reasonable to you that the procedure as to how the plan was to be operated would be important for the consideration of the Court? A. I certainly do think so and it will be made available. Q. Will be made available? A. Yes, during this hearing. That’s what we’re here for. Q. Excuse me, sir? A. That’s what we’re here for. Q. Here? A. Yes. Q. Then, you don’t consider the administrative operative aspects to be a part of the plan but something that is only ancillary, is that correct? A. Well, I don’t know how to answer that. It certainly is a part of it. In a sense it’s ancillary. It just depends on whether you want to make a general plan and then spell it out as you go along with 84 Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross more specificity, or whether you want to try to start off with a plan, which you think is going to cover the here and the hereafter. Q. Let me ask you this, Mr. Atkinson: Do I understand you to say that there is now presently published, though perhaps not distributed, a complete administrative plan, which is to accompany the plan which has been submitted and filed? A. No, I do not mean that at all. So far as I know, there has been nothing published; but, here again, when we are given an opportunity to produce evidence and make a showing on the plan which we have offered, we con template expanding to show some of the details of that. Q. I see. When do you contemplate bringing into exist ence those details? A. They’re already in existence. I t’s just a question of showing them to the Court and we’ll do that as soon as we have an opportunity to be heard in this hearing. Q. Well, you have me rather badly confused, Mr. Atkin son ; in one breath— The Court: I think he means that whenever you are through presenting your evidence, he wants to present this plan, or the other side does. Mr. Hollowell: Well, if it please the Court, he has just said that they didn’t have anything that had been—■ The Court: No, no, he didn’t. The Witness: I didn’t say that. The Court: You asked him if it had been pub lished. Mr. Hollowell: I believe so. The Court: Publicized and he said no, but I take it, he’s got it. Judge Mallory C. Atkinson—for Plaintiffs (Adverse) —Cross Mr. Hollowell: I said published though not dis tributed ; in other words, drafted, made up, a written document. This is what I had reference to and my understanding of that which he has said would be in the negative. The Court: No, no; I think he’s got it and he wants to present it whenever you get through with him, whenever you present your ease. Mr. Jones: Your Honor, here it is (producing document) . . . The Court: That’s perfectly plain to me although I knew nothing about it except at this hearing. Mr. Hollowell: Well, it wasn’t plain to counsel, Your Honor, I assure you. The Court: Well, I was trying to make it clear to you. They say they’ve got it. That’s the reason they wanted the burden of proof but I gave it to you. Go ahead. But, in view of the fact, now you may cut some of yours a little short; and then you’ll have a right to come back, if you need to. Mr. Hollowell: Yes, yes. Q. This plan as you now have it, let me ask you this, and as you have studied it, since you indicate that it is in existence, how long do you anticipate that it will take to put it into action? A. By “this plan”, do you mean the plan that we have— Q. The plan, the administrative plan ? A. Do you mean the plan that we have presented in court, or do you mean these sustaining elements of the plan? Q. The sustaining elements of the plan? A. They will become operative whenever the plan is approved; if the Court approves the plan, we’re prepared to implement it. 86 Plaintiffs Rest Mr. Hollowell: I don’t believe there are any fur ther questions of this witness, Your Honor. The Court: All right. Mr. Jones: I have no questions. Mr. Hollowell: We have no further questions at this time and we rest, Your Honor. P la in tiffs E est The Court: Very well, proceed for the Defendants. Mr. Jones: Will Your Honor give me just one moment ? The Court: Yes. Mr. Hollowell: May it please the Court, may I say, if they have some kind of administrative plan which they expect to be considered here, I think it would certainly be most proper for counsel to have a copy of it, if it’s going to be considered in this situation; so that it would not be cold to counsel, if it’s supposed to be a part of the plan. Mr. Jones: If Your Honor please, I am delighted to give counsel even at this time or at any subsequent time certain papers which we have prepared. The question is asked whether it’s a part of the plan or not. This first document here is entitled, “Procedure for executing student transfer requests”, and there are other documents similarly entitled, including ap plication forms, information sheets, and various and sundry things of that sort. I do not want them to be considered as presented to the Court until we have had an opportunity to present them, but I ’m very happy to give counsel a copy of what I have in mind right now, be delighted. 87 Judge Mallory C. Atkinson—for Defendants—Direct The Court: Very well. Mr. Jones: I ’ll ask Mr. Atkinson now to resume the stand as a witness for the Defendant. J udge M allory C. A tk in son now called as witness in behalf of Defendants, having previously been sworn, testi fied on Direct Examination by Mr. Jones: Q. Mr. Atkinson, certain questions which I might have asked at this stage have already been answered by you as to your present profession and relationship to the Board. I would like to review that very briefly: Y ou have the title of “Judge”, I believe! A. I became Judge of the Superior Court in March, 1944. Q. That’s where your title came from! A. Tes sir. Q. You became Judge of the Superior Courts of the Macon Circuit in 1944! A. That’s correct, sir. Q. And continued in that office until the end of the year 1954,1 believe? A. That’s correct. Q. At that time, I think I might be permitted to suggest that you did not offer for reelection for another term? A. That’s correct. Q. Then, during that period of time you were under the charter of the Board an ex-officio member of the Board? A. At that particular time. Q. By virtue of your office? A. Yes sir. Q. The Superior Court of this Circuit has two Judges resident in Bibb County, is that correct? A. That is cor rect. That was not true throughout my tenure but that is presently true. Q. That was true at some time during your tenure? A. Yes, for a short period. Judge Mallory C. Atkinson—for Defendants-—Direct Q. And it is now true? A. That’s right. Q. There is a third Judge of that Court who does not reside in Bibb County? A. That’s correct. Q. That’s Judge Aultman, I believe he resides in Peach County? A. That’s right. Q. And is only the resident Judges of that Court in Bibb County who are ex-officio members of the Board? A. Yes sir. Q. So, that means that at the present time there are two Superior Court Judges in this County who are ex-officio members of the Board? A. Judge Long and Judge Bell. Q. Now, the Ordinary, I believe you said, was also an ex-officio and there is a fourth ex-officio member? A. The Mayor of the City of Macon. Q. The Mayor of the City of Macon? A. Yes sir. Q. When you gave up your office as Judge, you then ceased to be a member of the Board? A. That’s right. Q. And that situation continued for several months, prob ably until May of 1955? A. I think that’s right. Q. At which time you were a regularly elected member? A. That’s right. Q. And you have since served in that capacity? A. Yes sir. Q. Prior to becoming a member of the Board in 1944, you had practiced law for several years, I believe? A. Some 14 to 15 years, yes sir. Q. Starting at what time ? A. 1930. Q. Counsel asked you in opening his case if you had, by reason of your professional experiences and membership on the Board, had occasion to keep up with the unfolding of the decisions since 1954: Do you by any chance mean to say that you have either read or heard of or studied all of the decisions of all of the Courts during that period of time? 89 Judge Mallory C. Atkinson—for Defendants—Direct A. No sir, I would not profess to have any knowledge of the holdings even in all of the cases, but I have had occasion to do some work in that field for my own interest and be cause of my interest in the field. Q. And, of course, since you retired from the Judgeship in 1944, your work has been at Mercer"? A. Substantially, yes sir. Q. Where you are teaching? A. Yes sir. Q. You were, of course, aware of the original Brown v. Board of Education decision in 1954? A. Yes sir. Q. And of the implementing decisions which followed almost exactly a year later? A. Yes sir. Q. In 1955? A. Yes sir. Q. And by general reading you have to some extent kept up with other decisions as they have been handed down? A. I think that’s a fair statement of it, sir. Q. Mr. Atkinson, when the Brown decision was handed down by the Supreme Court, did the Bibb County Board take any cognizance of it in the matter of establishing a committee or any such action as that, that you recall? A. A committee was established to concern itself with that particular situation. It is my recollection that that com mittee was not designated until 1955, after the second deci sion or the implementing decision, if we may call it that, in the Brown case came out. Q. What was your position in connection with that com mittee assignment? A. I was chairman of that committee. Q. Who was at that time the Chairman of the Board? A. J. D. Crump. Q. Do you recall or can you now state who were the other members of that committee? Possibly I can help you. A. I believe I can. McKibben Lane, Wallace Miller, George Rankin and Mr. Crump was ex-officio and I think there 90 Judge Mallory C. Atkinson—for Defendants—Direct were one or two others. I ’m sure we can find the list of those. Q. I think that’s relatively unimportant? A. Possibly Mr. Hertwig, I am not certain when he came on the Board. Q. Mr. Charles C. Hertwig? A. Yes, Mr. Hertwig. Q. Then with the Bibb Manufacturing Company? A. Yes. Q. Mr. McKibben Lane, to whom you referred, is de ceased, I believe, at this time? A. That’s right. Q. How long did that committee continue to function as a committee? A. Prom the fall of 1955 until the early spring of 1961. Q. I hand you a copy of a petition, which was received by the Board on December 9, 1954; that petition is signed by a number of parents, with their addresses shown; also by J. S. Williams, M. D., President of the Branch, and by Donald L. Hollowell and A. T. Walden as counsel: What does that reference to the “branch” mean? A. I think the petition itself recites that he was President of a branch of the National Association for the Advancement of Colored People. Q. And the Mr. Hollowed who signed that petition is the gentleman who is here in court now? A. That’s correct. Q. Bepresenting the Plaintiffs in this case? A. Yes sir. Q. Do you know Mr. Walden or who he is? A. I rather think I have met him.. I rather think he has been in my court in years past, but I am not certain of that. Q. I will ask you to look at that paper: first, look at the form of it, if you will, to see to whom it is addressed and for the purpose of indicating whether it appears to be a personal communication prepared for presentation to the Bibb County or a form of petition of some sort prepared for general use? A. Wed, I would say it appears to be a 91 Judge Mallory C. Atkinson-—for Defendants—Direct form which had insertions made to make it applicable to our Board. It did not use the corporate name of our Board. It starts off, “To the blank school board of parenthesis dis trict number or county”, rather than starting off—and then, they filled in the blank “Bibb County.” So, it’s obvious who was intended, and the Superintendent of the Schools of Bibb County. Q. Do you happen to know whether similar petitions on the same form were presented to some other systems in the State? A. No sir, I couldn’t testify— Mr. Hollowell: May it please the Court,— The Witness: I couldn’t testify of my own knowl edge. Mr. Hollowell: Just a minute, if you don’t mind. May it please the Court, I want to object to the line of questioning as having no materiality or relevance to the particular ease at hand. I can’t see that what has been done in some other county or city has any effect upon what this Board has done and what this Board is required to do, especially as relates to any application which may have been made. The Court: He is just commenting upon the peti tion, I believe, that was presented. I don’t think he’s going into what other boards did. Mr. Hollowed: Very well. The Court: Let him go ahead. The Witness: I will answer your question by stat ing that I have made no accurate comparison. I did have knowledge that petitions were presented to other boards but the verbiage of those petitions, I do not know. Mr. Jones: Your Honor please, as we go along, mav I identify that petition at this time. 92 Judge Mallory C. Atkinson—for Defendants—Direct The Witness: There’s two copies of the same thing. The Court: The Clerk will do so. Mr. Jones: This is a petition actually in two pages with different signatures on different pages but it’s the same petition. I t’s entitled “Petition to Bibb County School Board of, district number or county blank space, and Superintendent of Schools of Bibb County; and is signed by a number of individuals, who identify themselves as parents of children, and by the officers of the branch of the NAACP; and is marked Received 2:20 P. M., December 9, 1954”. I would like for you to identify that as Defendants’ Exhibit D-l. (So identified) . . . Q. In point of time, Judge Atkinson, how did that relate to the first and second Brown decisions of the Supreme Court! A. It was between the two. Q. Was it then known that there would follow an imple menting decision by the Supreme Court! A. Yes sir. Q. What was the reaction of the Board, upon receipt of that petition! A. It was considered that the request was simply premature, that no action could be taken until we had further directive. Q. Then, at some later date did you, are you aware that a second petition was filed! A. Yes sir, that was, I be lieve, in August of 1955. Q. I show you this copy, which is also in two sheets but identical except that one has certain signatures and the other has additional signatures, and it is marked “Received 2 :01 P. M., August 25, 1955”. Is that the petition to which you have reference! A. Yes sir. Mr. Jones: I would like to identify that, if Your Honor please, as Defendant’s Exhibit D-2. (So iden- 93 Judge Mallory C. Atkinson—for Defendants—Direct tilled.) I ’m quite certain that counsel has copies of these already but, if at any time he desires a copy of any of them, I will be glad to supply him. Q. Upon receipt of that, what action, if any, did the Board take? A. The President of the Board appointed a committee, to which I referred a moment ago, and referred, as a matter of fact, both of those petitions to the committee. Q. And that is the committee of which you were the Chairman? A. Yes sir. Q. Has that committee met from time to time? A. Yes sir, not since 1961; that is, the committee of that personnel has not met since early in 1961. Q. Well, I understand that that particular committee was really superseded by a subsequent committee ? A. Yes sir. Q. In the year 1961? A. And it is to that to which I referred. Q. And you are actually a member of the second commit tee also? A. Yes sir. Q. You were chairman of the first committee? A. That’s right. Q. In general, Judge Atkinson, what was the picture of progress or steps taken and reaction to those decisions during that immediate period, say in 1955 and 1956, with particular reference to the State of Georgia? Could you answer that question, if I ’ve given you an idea of what I have in mind? A. I think so, if I have in mind what you have in mind. I would say this: The decisions emanating from the Circuit Courts of Appeal and the United States Supreme Court were making it clear that this program would need be effectuated. In the State of Georgia we were confronted with problems arising, No. 1, out of the Constitu tion of the State of Georgia; and, No. 2, out of a variety 94 Judge Mallory C. Atkinson—for Defendants—Direct of State statutes, all of these provisions requiring segrega tion in our public school systems by race, and tying that down or attempting so to do in various ways. One statute, that I will not try to presently identify, was there to the effect that the integration of any school would instanter cut off the flow of funds from the State to the school system which was operating that integrated school. Another statute, as I recall it, defined it as a felony under State law for any member of any board to apply any funds,—I anticipate it is worded that way; I don’t recall the details now—for any integrated school in the system. And also, in addition to the general statutes and the con stitutional provision, there was the matter of the provision in our own charter, which was granted in 1872, which spe cifically required at that time and up until a year or two ago, separation on the basis of race. Q. Do you happen to recall that in the implementing Brown decision in 1955 the specific statement was made that the District Courts charged with the enforcement of desegregation, as cases might properly come before them, could consider the necessity for the revision of local laws and regulations ? A. I do recall that and my recollection is that that was incorporated in the language in our prelimi nary report that our committee made to the Board. We received about that time a letter, and I do not recall who the writer was, but the effect of it was to undertake to place on the local board an ultimatum that certain action be taken by October 15, I believe; and our committee saw immedi ately that it was not the sort of problem that could be an swered that way; and we made a report and submitted that to the Board, calling attention to that. Q. Can you identify this as a copy of the preliminary report of your committee, filed on October 3, 1955? A. Mr. 95 Judge Mallory C. Atkinson—for Defendants—Direct Jones, I believe that’s an accurate copy. I do know that in the drafting of it some minor changes were made and this could be—• Q. I notice that copy appears to be signed by members of the committee? A. .Yes, I think this is an accurate copy. Mr. Jones: May I make inquiry of Mr. Gholson— The Witness: I notice also— Mr. Jones: (Addressing Mr. Gholson): Do you know whether that report is a correct copy of the report of this committee? Mr. Gholson: I believe so. Mr. Jones: If Your Honor please, may I proceed with this copy now, subject to a check up during the recess hour; and, if there is any question about it at all, I will advise the Court immediately after lunch? The Court: All right, sir. The Witness: I believe that’s an accurate copy. By Mr. Jones: Q. You understand it is; it appears to be? A. Yes sir. Mr. Jones: I would like, if Your Honor please, to identify that as Defendant’s Exhibit # 3. Q. Actually, so far from local laws, and by local laws I particularly mean laws of the State of Georgia, to which this Board is subject, so far from State laws being revised to facilitate the desegregation of the schools or any form of compliance with the Supreme Court decision, isn’t it a fact that over the period from 1955 to say 1959, possibly 1960, additional laws were passed, the apparent conse quence of which would be to increase those problems? A. 96 Judge Mallory C. Atkinson—for Defendants-—Direct I think so, sir; and what I said a moment ago, it may he that some of those acts, to which I referred, were passed during that period. Q. During that period of time? A. Because from 1954 up until, I would say, the session of the General Assembly in 1961, there had been a tendency throughout that period to make it more difficult, rather than to facilitate it. Q. Now, coming to 1961, do you happen to recall that in that year certain of these problem laws, with which we are concerned, were repealed? A. That is correct, in the spring of 1961. Q. I don’t think it’s necessary— A. Not all of them, but— Q. That’s right? A. But some of them. Q. Generally speaking, was it the design of the Legis lature in 1961 to remove the statutory obstacles in the way of compliance with the Supreme Court decision? A. State wide, yes sir. Q. Statewide, that’s right? A. Yes sir. Q. Now, piior to that time, had any movement been initiated to change the charter of the Bibb County Schools? A. No sir, not to my knowledge. Q. After the Legislature repealed certain of these laws in 1961, what happened insofar as your committee was concerned? A. Well, my committee was, shall I say, suc ceeded in the spring of 1961 by a similar committee, the chairman—we had a new chairman of our Board at that time, Dr. Weaver had become chairman, and upon the occa sion of some matter being submitted to the Board, it was referred to a committee, of which I was a member, which was chairmaned by Mr. Wallace Miller, Jr. Q. May I now exhibit to you merely to aid your recollec tion a communication there dated in February of 1961: Will 97 Judge Mallory C. Atkinson—for Defendants—Direct you state what that is? A. This appears to he a copy of a letter from the Macon Council on Human Relations, ad dressed to Dr. Weaver in his position as President of the Bibb County Board, referring to the problems with which we were concerned, and offering their assistance. Q. Now, was it upon receipt of that communication that this new or superseding committee was appointed? A. That’s my recollection. Q. The committee, to which you have reference, was the committee of which Mr. Wallace Miller acted as chair man? A. Yes sir. Q. And you did continue as a member of that committee? A. Yes sir. Q. Do you happen to know whether there was any other committee of the Board which was woven into that spe cial committee? A. Whether it started off originally or whether it was clone later I am not certain, but I do recall definitely that in our meetings of that committee we met with the Committee on Rules and Regulations of the Board also. Q. And is that— A. And the two committees acted somewhat jointly. Q. And is that the committee of which Mr. W. A. Pickling was chairman? A. That’s right, sir. Q. And isn’t it a fact that that committee has at times been referred to as a joint committee or as a joint meeting of two committees? A. Yes sir. Q. Mr. Wallace Miller’s special committee, plus the Rules and Regulations Committee? A. Yes sir. Q. Turning back to yourself for a minute, reference has been made to your tenure as a member of the Board. Dur ing the period that you were on the Board state in what capacities you have served insofar as committee chairman- 98 Judge Mallory C. Atkinson—for Defendants—Direct ships is concerned? A. I served as chairman of the com mittee on transportation. I cannot give yon the years, Mr. Jones. Q. I don’t think the years are important. A. For several years. I served as chairman of the committee on Buies and Regulations for several years. I served at one time as secretary of the Board. I served as chairman and am presently serving as Chairman of the Committee on Teachers and Salaries, being charged with the responsi bility for the personnel of the Board. Q. So that, at the present time you are a member of the Board, you are Vice-President of the Board, and you are Chairman of the Teachers’ Committee? A. That’s cor rect. Q. Of the Board? A. Yes sir. Q. On the subject of teachers you heard the interroga tion of Mr. Gholson, with reference to problems that would be encountered in attempting to assign teachers without difference based on race or color at all: Do you have any observation to make as to what that problem would involve? A. I do not know that I could make it with any clarity but I would like to make an observation. I think the difficulty with which we are confronted there, you may term it ad ministrative, you may term it by any other designation you care to, lies in the fact that the educational process is not a mechanical process, but is involved and invariably in volves personalities. I do not think that any teacher ought to be assigned by the Board of Education or by the Superintendent to teach one grade in one school, without giving consideration to factors which are simply not consistent with the idea of assignment by rote or by rule. Judge Mallory C. Atkinson—for Defendants■—Direct I do not think, and I have instructed the Superintendent of my views, I do not think that a teaching assignment should he made without consideration of the personnel and the characteristics of the personnel involved. I do not think that a specific principal ought to be told that “I am sending to you a teacher, being application No. 4376.” It is my experience, from the years I have been there on the Teachers and Salaries Committee, that the most satisfactory environment is created for educational pur poses where a principal makes a request for a certain teacher, of whom that principal knows, and the principal, of course, being close to the situation, he knows, who will fit in in that educational effort. And so, I think probably there’s a little lack of under standing in thinking of this thing as just a mechanical sort of a process. It is anything but mechanical; it’s very per sonal. Q. I don’t want to anticipate the testimony of the Super intendent when we put him on the stand a little bit later, but do you happen to know how the Superintendent now works out teacher assignments, in a general way? A. I can testify to this extent: I know that he receives applica tions and I know that he confers with each of the principals. Now, as to whether a given application originated with the principal or originated with the Superintendent, my thought is they might be both. Q. That’s a detail that we can leave for the Superinten dent? I ’m quite sure. A. Yes sir. Q. But in any event, it does involve a consideration of a great many personality factors in the assignment of teach ers? A. Inescapably, according to my way of thinking, yes sir. 100 Judge Mallory C. Atkinson—for Defendants—Direct Q. You heard the Superintendent’s testimony that some of these teachers had been in a given school for many, many years—I think he mentioned 30 possibly longer in some cases—also that that school had an organization of teachers, which has remained fairly constant; is that your observa tion and understanding! A. Yes sir, I would say so. Actu ally, we have gone about creating that situation to some extent here in this County. We adopted a good many years ago, before I came on the Board, a system of increasing compensation on a local level to teachers, on the basis of years of service, whereby they get a certain increment the longer they stay, as a consequence of which we think it en ables us to keep our teachers longer than they might be kept in other systems in the State. Q. Do you know of any teacher in the system, either white or colored, who has indicated a desire to teach in a school of the opposite race? A. No sir, I have never heard of one. Q. Has there been any petition to the Board or repre sentation to the Board by the teachers individually or as a group, or in any other manner, indicating such a desire on their part? A. No sir, there certainly has not been to the Board, nor have any of them had anything to say to me about it, though I have been present at meetings of the Bibb Education Association and the Colored Teachers As sociation. Q. Mr. Atkinson, how are teachers’ salaries determined? A. In two ways: No. 1 is the accreditation or certification would be the more accurate expression, which requirements are spelled out by the State Department of Education, and salary schedules are based upon the attainment in that area of certification. 101 Judge Mallory C. Atkinson—for Defendants—Direct And No. 2, on the basis of tenure. The State has a sys tem of increasing compensation for tenure and, as I sug gested a moment ago, we have a system on top of that, whereby our system encourages longevity of service. Q. I think you have partly answered my question. Let me insert another one right there: Is there any State law or Federal law for that matter, which gives to the teachers in the Bibb County public school system a guaranteed tenure of any sort? A. Not to my knowledge, no sir. We elect our teachers in May, I believe it’s May, in May of each year; and I think they secure, each teacher secures a one year contract. But I know of no right of a teacher to be reelected. Q. That is, no right under the State law? A. That’s right. Q. To be reelected? A. Not that I know of. Q. To be reelected as a teacher in the Bibb County sys tem? A. Not that I know of. Q. That was primarily what I had in mind? A. Yes sir. Q. Then, if that’s true, it would follow that there is no right in that teacher to be assigned to a given or a specific or a particular school, so far as the State law is concerned? A. Certainly not with the expiration of the contract year and the starting of a new contract year. Q. In connection with—I asked you how the teachers were paid and I think you have answered that question, though I am not entirely certain—is it correct to say that it is actually based on the teacher’s accreditation under some minimum compensation basis? A. That’s right, sir. They have varying degrees. They have what they call 4-year professional certificate, 5-year and 6-year; and, of course, each one is on a different level of compensation, and it starts off there with your minimum, and then for years of service there are increments. 102 Judge Mallory C. Atkinson—for Defendants-—Direct Q. That’s right, but that is a rate of pay which is deter mined on the teacher’s record? A. That’s correct. Q. Length of service and other factors, which apply to all teachers? A. That’s right. Q. In the system? A. Yes sir. Q. Is there any difference in application of the teachers’ rate of pay as between the teachers in the Negro schools and the teachers in the white schools? A. None whatso ever. Q. As a matter of actual application, could you state whether or not, as an average or as a group, the rate for the Negro teachers is higher or lower than that of the white teachers? A. Mr. Jones, I could not state an average and I couldn’t state general. I could state that it has come to my attention more than once that, computing on the basis of an average teacher, the average colored teacher would be drawing more than the average white teacher. Q. That has been your observation? A. Yes sir, simply because of the accreditation and length of tenure of the teachers; and they had superior accreditation and they had more longevity sufficiently to where it pulled their average higher than the average of the white teachers. Mr. Jones: Just one minute, Your Honor . . . No further questions, Your Honor. . . . Please excuse me just a moment. Mr. Hollowell: Surely. By Mr. Jones: Q. Mr. Atkinson, you understand that I am not asking you questions regarding matters which happened during Mr. Miller’s, reign as chairman of this committee or other matters, which will be covered by the Superintendent? A. All right, sir. Mr. Jones: With that, I have no further questions. 103 Judge Mallory C. Atkinson—for Defendants■—Gross Cross Examination by Mr. Hollowell: Q. I have a few questions. Mr. Atkinson, do you know whether or not the law school students were submitted any of these problems for research? This is the law school students at Mercer, any of these problems growing out of desegregation of schools? A. They were not by me and, if they were by anybody, it was without my knowledge. I have no knowledge of any such. Q. The letter that you made reference to or the peti tions which were first submitted in ’55,1 don’t recollect your having indicated that there was any response to them; was there any response to that first petition? A. There was a report which was made to the Board in October of that year, according to my recollection, which was publicized. That’s in the record. I t’s what was identified a few minutes ago, preliminary report made by that committee. Q. Let me see if I understand you then: After the re ceipt of the petition, the committee met and report was made to the Board? A. That’s right. Q. Which report was subsequently publicized? A. Yes. Q. You mean through the local press? A. That’s cor rect. Q. There was never any direct response made to the submitting parties? A. I can’t answer that, I do not know. It may be that the communication was addressed to a par ticular individual. I do not recall that I did so. It may have been done administratively, I don’t know. Q. Now, these State statutes that you have made mention of, this package deal, which were passed by the Legislature and which sought to cut off funds and also had some penal sanctions as to certain of the provisions, did the Board at any time ever file any suit seeking a declaratory judgment as relates to any of these matters? A. No. 104 Judge Mallory C. Atkinson—for Defendants-—Cross Q. The only suit that was ever filed was suit relating to the 1872 charter, which was filed last year? A. That was filed after the State had repealed the statutes, to which you refer. Q. Yes, I know? A. That’s correct. Q. But there was no other that was ever filed, to your knowledge? A. That’s right. Q. Of course, in considering the matter of the order which ultimately came down in that State court suit, it was the general consensus, was it not, that there still should be no segregation or no desegregation of the public schools; is that not correct? A. I don’t know that I ’m prepared to state what the general consensus was. I think when Mr. Miller testifies here as to the activity on the part of his committee, you will be advised as to what we have on the question of consensus of opinion; but I don’t know that I could testify what the consensus of opinion was. Q. Well, you were there? A. Oh yes, I was there. Q. You know that there was a report made and some action taken by the Board pursuant to the hearing on the 1872 plan or 1872 charter; is that not correct? A. I ’m sorry, I can’t follow what your question is. Q. I said, you were present after the Court ruled on the 1872 charter last July, you were present at the meeting? A. What meeting? Q. Meeting of the Board? A. Yes, I ’ve been present at, I think, most of the meetings of the Board. Q. And you know that the matter was taken up by the Board, do you not? A. So far as I recall, it was not taken up by the Board, except in the way of study and report by Mr. Miller’s committee, and that’s to what I referred a moment ago. I think he’ll be able to testify to that, prob- 105 Judge Mallory C. Atkinson—for Defendants■—•Cross ably more accurately than I. I was a member of that com mittee, I participated in it but 1 don’t know that I recall the specifics of it. Q. Well, I ’ll ask you whether or not, after the court ruled that the Board could in fact desegregate, or maybe put it the other way, that the 1872 provision which had been the subject matter of the litigation, did not keep the Board from desegregating, the Board did in fact vote to continue segregation; is that not true! A. I think that will be most accurately portrayed by showing wdiat action the Board took. I do not have that before me now, but there is a resolu tion which was adopted. Q. I ’m not asking you whether or not you have it before you, Mr. Atkinson, but I ’m asking you whether or not as a member of the Board who was present, do you know whether the Board did make such a vote! A. Indeed, I do; I know that such a resolution was adopted. I would not characterize that resolution because I think the resolution would best speak for itself. Q. Do you know what the import of it was! A. I think Ido. Q. What was that! A. The import of it was, and I don’t know that I ought to try to give my reactions to things when we’ve got the original actually available and it speaks for itself; but if there’s no objection, I will go ahead and testify, that I think the import of it was substantially this: that in the thinking of the Board, that any process of elimination of the practice of segregation, such as we have known since 1872, could be most satisfactorily conducted under the guidance and direction of the United States Dis trict Court. Q. And, therefore, the Board took no steps to desegre gate! A. That’s correct. 106 Judge Mallory C. Atkinson—for Defendants—Cross Q. Now, you said that you had been the Chairman of the Teachers Committee for what period of time? A. I don’t think I said exactly because I don’t recall exactly, but I think 4 or 5 years. Q. Do you think that the higher one goes in his training and the longer that he participates in his chosen profession, the more proficient he ought to be? A. Yes, the more pro ficient he ought to be. I do not subscribe to the idea that it follows as night the day that he is more proficient. Some times he is and sometimes he isn’t. Q. Well, I submit that perhaps that is very true. Have you, as a matter of fact, found in the public school system of Bibb County that those with greater academic achieve ments and greater seniority and longevity were less effec tive as a teacher than those with less training and tenure? A. No. Q. Then, based upon that, you would conclude that on an average that the Negro teachers in the Bibb County system would be quite qualified to teach white pupils as well as Negro pupils, is that correct? A. I don’t think I ’m qualified to testify to my conclusion on that, because my conclusion on that would be speculation, because it is not simply a question of an individual’s training; it is not simply a question of an individual’s intelligence; it is not simply a question of an individual’s capacity; but there is also the factor of working together with other individuals, both on the faculty and on the teacher-pupil level. I would simply answer it to this extent. Some of the most excellent teachers that I have known in our system were colored. Some of the most effective and excellent teachers I have known are white. But that is not to say that that teacher would retain the same degree of effectiveness if 107 Judge Mallory C. Atkinson-—for Defendants-—Cross moved over into the other area. That is speculation; I don’t know. Q. And it is not also to say that it would be any less effec tive in a given situation either, is it, Mr. Atkinson? A. I am not making a positive statement one way or the other, but I say that those factors need to be considered. I t’s not a mechanical process, that of education. Q. May I ask you this, Mr. Atkinson? To your knowl edge, has there been any consideration of a plan of desegre gation of the school teachers and principals and other staff personnel of the Bibb County public school system? A. I know of none. Q. Are there any bonuses or grants paid to teachers in this area, over and above the regular salary? A. Well, I know of one. Now, by “bonuses”, I don’t think you would mean there compensation for extracurricular work. For instance, some of our teachers do other work and they receive compensation for it. Q. Actually, a better word would have been “supple ment”, sir? A. Well, yes, there are some supplements; a mathematics teacher who coaches football will be compen sated as mathematics teacher and something else for his extra duties. But there is only one that would fall in the category that you mentioned, and that is the McKibben Lane Award, which is made each year, to an individual teacher; the award being made on the basis of proficiency and manifestation of excellence in teaching. Q. And how is that made now? A. Well, again, I ’m quoting from memory. We have it written down. But I would say it’s on the basis of manifestation of proficiency and excellence in teaching. I t’s there for the purpose of serving an incentive to teachers to do a better job. 108 Judge Mallory C. Atkinson—for Defendants—Cross Q. Who has the discretion as to when this is paid! A. Oh, it’s set np whereby a committee, comprised of the Superintendent, one member of the Board, and some—the preceding recipients—I can’t tell you exactly what it is— but it involves parent-teacher associations and the educa tional associations; that is, representatives from them. I t’s about a 5 or 6 person committee. Q. Now, is this paid in a lump sum or over a period of time! A. This is not Board of Education funds. It’s pri vately financed and privately conducted, except that these people do come in to do the leg work on it. Q. What people? A. The members or the member of the Board, the Superintendent, some representative from the PTA or whatever. I can’t give you the details of it. I know there’s a group that decides that each year. Q. Well, you are then familiar with it? A. Yes, I am. I ’ve served in that capacity. Q. Then, could you answer the question, as to whether or not it is paid in a lump sum or is it spread out? A. Paid in a lump sum, cash award. Q. Generally toward the end of a given year ? A. That’s right. Q. There’s never any given number of teachers to which it is paid? A. Yes, there are two each year. Q. There are no other problems inherent in the matter of the desegregation processes of the teachers, as well as the students, and other personnel of the public school sys tem of Bibb County that you can think of generally, other than those you’ve already stated; isn’t that correct? A. I don’t know whether I made a complete and full statement or not. I can think of a great many problems, and I do not know just exactly what I may have enumerated or what I 109 Judge Mallory C. Atkinson—for Defendants—Redirect may have overlooked enumerating in the recitation I ’ve made, but I think that substantially covers it. Mr. Hollowell: All right, no further questions for Mr. Atkinson. Redirect Examination by Mr. Jones: Q. Mr. Atkinson, I think we should clear up the last item of testimony, with reference to the award by Mr. Lane. We have already referred to the fact that Mr. Lane was deceased. I believe that award was set up by his family after his death, was it not? A. That’s correct. Q. In his memory? A. That’s right. Q. And you say there are two awards, are they sepa rately awarded on the basis of Negro and white teachers? A. That’s correct, one for the whites and one for the colored in equal amount. Q. So that the amount is equal and the award to the white is, of course, made among the white teachers and the award to the colored teacher among the colored teachers? A. That’s right. Q. Do you happen to know that those awards have just been made or are just being made at the present time, or are you familiar with that? A. It is scheduled for the next 30 days, I would say. Q. May 4 ,1 believe it is ? A. I didn’t remember the date. Q. And that is an annual award since Mr. Lane’s death? A. Yes sir. Q. Mr. Atkinson, there is still some confusion about the vocational schools and its part in this plan. I asked you this morning if you had reviewed the plan and you said not since it was drawn. Maybe you’ve done it since then, but would it help if I gave you the plan now and asked you to 110 Judge Mallory C. Atkinson—for Defendants—Redirect refer specifically to the references to the vocational pro gram, by which I mean the adnlt vocational program, and not the vocational courses which are offered at the high schools? You might start reading to yourself, not out loud, at the top of page 4, and then I ’ll ask you a few questions I want to ask you about that program? A. (Witness read ing document) . . . Q. Are you ready? A. I ’m ready but you may find me confused instead of clear. Q. All right, I think that’s very likely. In any event, it starts off with the statement that, “The vocational school program”, by which we are still referring to the adult program, is administered by the local board as an agency of the State Board, and that the local board does not have either the full responsibility or the duty with respect to it that it has with reference to the system under its control. A. That’s correct. Q. Is that a correct statement? A. That is certainly my understanding of the situation, yes sir. Q. Who, what individual in Bibb County has the most to do with the administration of this vocational program, do you know his name? A. Raymond Kelley is the Director of the Program. Q. I have here before me a sheet of paper, which has been prepared by Mr. Kelley, which gives a great deal of detailed information with reference to the program. I don’t know whether you’ve seen that or not. But would he be the proper person to enlighten us regarding the de tails of the administration of that program? A. Yes sir, he certainly would, because all I could do would be to quote what he states about it. Q. I ’ll take that back now, if you don’t mind. A. Be cause he is more familiar with it certainly than any of the rest of us, I think. Ill Judge Mallory C. Atkinson—for Defendants—Redirect Q. All right, getting back now to the admission to a course in the adult vocational program, do you interpret or understand this plan as providing that any element of transfer is necessary, or that it’s merely a question of applying to a course? A. Applying to a court? Q. Applying to enter a given course? A. Oh, well, my definite impression was it was the latter in the adult pro gram, because we have specifically had that question come up before the Board and recognized the necessity of pro viding those courses on a basis of no distinction according to race. Q. Actually, is it correct that vocational courses for adults are set up and inaugurated as a sufficient number of people show an interest in taking that course? Is that a generally true statement ? A. It is my understanding; as a matter of fact, I think they canvass the community situa tion with particular reference to the employment agency and employers and try to establish the need for certain type training and the number of persons; and then, of course, we’re governed by the number of applicants. Q. That’s right, and generally speaking, those courses are given at two different locations in the County, is that not correct? A. That’s right. Q. Name those locations for me? A. At the Dudley Hughes Vocational School and the vocational department, if that’s what you would call it, at Ballard-Hudson. Q. Dudley Hughes Vocational School and Dudley Hughes High School are actually separate organizations? A. Yes sir. Q. However, they are located generally on the same cam pus? A. That’s right. Q. Is that correct? A. Yes sir. Q. But the Ballard-Hudson High School may consider that the vocational program there is more a department of 112 Judge Mallory C. Atkinson—for Defendants—Redirect Ballard-Hudson, is that the distinction you’re making? A. I didn’t really mean to make a distinction. I don’t know whether any such distinction occurs. Q. Neither do I? A. I know we refer to the adult voca tional program at Ballard-Hudson and at Dudley Hughes. Q. So far as you know— A. But I know we have at Dudley Hughes, shall I say, a regular accredited high school, and at Ballard-Hudson we have a regularly ac credited high school, in addition to this activity. Q. In addition to the vocational program at each loca tion? A. Yes sir. Q. Now, so far as you know, they are operated substan tially the same, without distinction between the two? A. There is a little difference in the personnel. That’s illus trated by what we said a minute ago. Mr. Kelley heads up the overall vocational education program. However, on the high school level, we have Dr. Whitley, who is principal of the high school, and Mr. Martin, who is principal of the high school at Ballard-Hudson. Q. Do they have anything directly to do with the adult vocational program? A. I would say substantially not. I would think they would collaborate with Mr. Kelley on any vocational activities within the high school. Q. Okay; then, you were asked the question, whether the vocational, the adult vocational school was included in this plan, and I understood you to say it was not. Would you mind reading the second sentence of that there, to see if that refreshes your recollection? A. (Witness reading document) . . . Well, it is just exactly the opposite of what I said. Perhaps,—• Q. Will you read that? A. You want me to read it out loud? 113 Judge Mallory C. Atkinson—for Defendants—Redirect Q. Yes? A. “Nevertheless, the Board feels that the vocational schools in Bibb County should be included and dealt with in this plan.” Probably, the explanation of that wide divergence of testimony with the plan there lies in the fact that what my own thinking was, that the adult program had already been effectuated, and I was thinking of the plan as a program to cover the next 8 or 9 years. Q. That’s right! A. And for that reason we were not concerned with the adult educational program. But if you mean that the plan should spell out what has been and is being done there, of course, that would be entirely correct. Q. It is at least dealt with in the plan! A. Yes sir. Q. I think, Mr. Atkinson, if you don’t mind, if you’ll just read the balance of that paragraph now and that will be complete! A. “In keeping with the traditional separate school pattern classes and programs for vocational train ing have generally been separately provided for white and Negro trainees, but this distinction has not been rigidly followed and is not absolute at the present time. It is a part of the proposed plan that no applicant will be denied admission in the future to any vocational program under the control of the Board, or transfer from one program to another, solely because of his or her race.” Q. Thank you, Mr. Atkinson; I think that’s all. You may come down. By the Court-. Q. Where is Dudley Hughes Vocational School! A. I t’s on the corner of Orange Street and Forsyth Street. Q. That’s the old school— A. You recall that the old Gresham School, which was on the corner of Spring and Forsyth and Pine, along in there, has been destroyed now 114 Judge Mallory C. Atkinson—for Defendants—Redirect and we are, I hope, on the road toward the construction of new facilities there. Q. All right, and is the adult vocational program a part and is it conducted at that same site? A. Yes sir. Q. 1 understand they have—it’s not entirely adult, is it? A. That’s right. The high school department operates just as any other high school in our system. Q. All right; now, where is Ballard-Hudson? It was moved a while hack, wasn’t it? A. Well, it’s on the Ballard- Hudson campus. I don’t think I would trust myself to put my finger on it, Judge. That’s all I know, that it’s there where the Ballard-Hudson High School is. Q. Well, where is the Ballard-Hudson High School? A. I could take you to it. Mr. Jones: Anthony Road. The Witness: Anthony Road. The Court: It used to he in a different part of town entirely hut they’ve moved out, haven’t they? A. I expect you’re thinking of the Old Ballard School, which used to be out in the Pleasant Hill section; and when wTe built the new school and incorporated the two names, Ballard and Hudson, it was erected there on Anthony Road, quite a plant and quite a campus. Q. Thank you, sir. By Mr. Jones: Q. How do the physical facilities of Ballard-Hudson compare with the physical facilities of Dudley Hughes, or is it proper to ask you that question? Is that in your ter ritory? A. I could answer it but I don’t think I ought to answer it. 115 Judge Mallory C. Atkinson—for Defendants—Recross Q. I withdraw the question! A. Because I ’m not per sonally familiar with the details of it. Mr. Kelley, of course, could or any of the others. The Court: Do you have some questions, Mr. Hol lowed! Mr. Hollowell: I have 2 or 3 questions, Your Honor, relating again to this vocational school. It seems that it gets clear and then it becomes unclear; and at the moment it’s just a little unclear to my mind. Recross Examination by Mr. Hollowell: Q. Mr. Atkinson, I understood you to testify that the vocational program on the Dudley Hughes campus is sepa rate and distinct from the program of the Dudley Hughes High School as such, is that correct! A. The program is separate. The facilities are within four walls for both of them at the present time. There’s just one building there. Q. One building but separate programs! A. That’s right, for the adult program, on the one hand, and the high school on the other. Q. So, a person who is enrolled in Dudley Hughes High School can take as a part of his curriculum subjects from the vocational program? A. He would not technically be a part of the adult vocational program, but I am quite cer tain that you’re correct, that there are some vocational courses taught on the high school level. Q. Do you really know, sir? A. Well, I probably am not in a position to testify firmly as to that. I ’m sure that the details of both programs could be made available to where it wouldn’t be guesswork or speculation. 116 Judge Mallory C. Atkinson—for Defendants—Recross Q. Now, at Ballard-Hudson I understood you to say there too that the vocational program was separate from the high school program! A. The adult vocational pro gram, yes. Q. You’re saying the adult only! A. Yes, I ’m inclined to think that the same thing is true there, as I just stated that I thought at Dudley Hughes. That is, I think the high school student has an opportunity to take certain vocational courses. Q. So, here again, you really don’t know? A. No, I wouldn’t testify to that, as a matter of fact. Q. Now, let me ask you one other question: If a student was enrolled in Ballard-Hudson High School and there were courses in the vocational school of Dudley Hughes that he wanted to take, which courses were not offered in the voca tional program at Ballard-Hudson, would he be able to take those courses at Dudley Hughes? A. I am under the impression that that is exactly what is presently being done. I think we have at least one student that would fit in with that description; but there again, I ’m not certain of the details. Q. All right; well, I don’t think you could answer my other question then. Thank you very much, Mr. Atkinson. Mr. Jones: That’s all, Mr. Atkinson. The Court: We’ll suspend now until 2 o’clock. (Lunch Recess: 12:45 P.M. to 2 :00 P.M., April 13,1963.) 117 Wallace Miller, Jr.—for Defendants—Direct Mr. Jones: I ’ll ask Mr. Miller to take the stand. The Clerk will swear Mr. Miller. Yon may at this time want to swear two additional witnesses who are expected to follow, just one really, Mr. Cul- piepper. (Mr. Miller & Dr. Culpepper sworn by Clerk) M r. W allace M iller , J r., witness called in behalf of Defendants, being first duly sworn, testified on Direct Examination by Mr. Jones: Q. Your full name, I believe, is Wallace Miller, Jr.! A. That’s right. Q. Your profession is that of the practice of law! A. Correct. Q. Your home has been in Macon all of your life! A. Nearly 49 years ; all of my life, right. Q. That was my next question, I ’ll skip that one. How long have you been practicing law here, Mr. Miller! A. Since 1940, with the exception of 2V2 years while in the Army, Air Corps. Q. What is your present connection with the Board of Education of Bibb County! A. I ’m a Board member, sec retary of the Board, and chairman of the Claims and Auditing Committee; and also chairman of a special com mittee appointed by Dr. Hut Weaver, Chairman of the Board, in March of 1961. Q. I ’ll ask you the same question that was asked Judge Atkinson, in view of your professional relationships and activities and as a member of the Board, have you gener ally kept informed as to the court decisions, State statutes and legislation bearing upon the questions which arose 118 Wallace Miller, Jr.—for Defendants—Direct after the Brown decision in 1954? A. Generally, that’s a fair statement. Q. You’re aware, of course, that many volumes have been filled with decisions of various eorrrts and I assume that you’re not claiming to be familiar with all of them? A. That’s correct. Q. Mr. Miller, in 1961 will you state for the benefit of the Court generally what happened with regard to the existing legislation in the State of Georgia applying to the State as a whole, on the subject of separation of the races in the schools and public places? A. Well, as I under stand it, all such legislation prohibiting the integration of the races in the public schools was either repealed or wiped off of the books in some form or other. Q. Now, the Legislature meets, I believe, for a period of 60 days in the early months of the year, starting in Jan uary and running through March, is that correct? A. I think that’s correct. Q. And if I state that that’s what they did in ’61, you would accept that statement? A. I certainly would. Q. Then, the repealer laws that were adopted were dur ing that period, from January to March, i n ’61? A. That’s right. Q. I hand you a copy of a letter, which was received by the Board of Education, addressed to Dr. Weaver, and ask you if you are familiar with the fact that that letter was received? A. Iam. Q. Who is it from? A. It is from “Joint Chairmen of the Macon Council on Human Relations”, signed by E. B. Paschal and Jos. M. Hendricks, as co-chairmen of that Macon Council on Human Relations. Q. Do you know Mr. Paschal? A. I knew him; he’s deceased. Q. He’s deceased now? A. He is deceased. 119 Wallace Miller, Jr.—for Defendants—Direct Q. Actually, some of the earlier correspondence, which was identified by Mr. Atkinson, was also written by Pas chal, was it not ! A. I think it was. Q. Do you know when he died, approximately! A. I would say within the last 3 years, couple of years, about two years ago. Q. Now, that letter has attached to it a couple of pages of written matter, does it not! A. It does, captioned “Statement”. Q. And generally, wThat does that purport to be! I don’t mean in detail or in content but— A. Well, it’s generally a statement, as I interpret it, of the Macon Council on Human Relations, that was being directed to all public bodies in Bibb County, including the Mayor, City Council, Board of Education, County Commissioners, Sheriff’s office. Q. Why do you say it was directed to all of those par ties! Or bodies? Does that appear from the statement itself or from the letter! A. It does, in my opinion. Q. Will you read the language that you are referring to! It may be in either the letter or the statement, I ’m not certain which! A. Well, it may be in all of it but the general tenor of it, it is addressed to those different bodies and it says this: “The Macon Council of Human Relations respectfully suggests to the authorities of the City of Macon, of Bibb County, including the Bibb County Board of Public Education and Orphanage that a re-exami nation here, not only is logically called for as a result of changed state laws and abandonment of State legal stance of unflinching resistance, but that it is imperative to the continued well being and the preservation of the traditional harmony of our community.” Mr. Hollowell: May it please the Court, I don’t want to impede but 1 would certainly have to object 120 Wallace Miller, Jr.—for Defendants—Direct to reading the document. It has not been placed into evidence. Mr. Jones: It was our intention, of course, to. Mr. Hollowell: Reading the caption as to whom it was directed as distinguished from the contents of the letter. The Court: That objection might as well be taken. Mr. Jones: I will pause and ask the reporter to identify this communication, with the statement at tached to it, as Defendant’s Exhibit D-4. May I now proceed on the basis of that identification, or shall I formally offer it? The Court: You probably show it to opposing counsel, if he wants to see it. Mr. Jones: He has a copy of it, I ’m sure. The Court: Do you have it ? Mr. Hollowell: No, I don’t think I have. I ’m not sure but I don’t think I have. Mr. Jones: At any rate, it’s referred to in their complaint. Mr. Hollowed: I ’m not sure which one it is. (Ex hibit D-4 handed to counsel Hollowed) . . . Mr. Jones: Here’s another copy if you want it. While counsel is referring to that, if Your Honor please, I might simply state that in the complaint it was alleged that in various communications and petitions, the Board of Education was made aware of the dissatisfaction of the Negro people of this community, and this particular communication was specifically enumerated in there; and I assume that counsel must have had a copy of it when he drafted his complaint. The Court: All right, sir; you are tendering it in evidence ? 121 Wallace Miller, Jr.—for Defendants—Direct Mr. Jones: I will tender it in evidence. I had thought of doing that at the conclusion of the presen tation but I ’ll be glad to tender it right now. The Court: Any objection, Mr. Hollowell? Mr. Hollowed: We see no objection to this. Your Honor. The Court: Very well; we’ll admit it into evidence, D-4. By Mr. Jones: Q. Then, Mr. Miller, if I understand the answer which you’ve already given, this was not a communication ad dressed solely to the Board of Education, with sole and pointed reference to the school system, but was one ad dressed generally to the authorities of the City and County on the general subject? A. That’s correct, and the last paragraph is where I got what I have in mind. I ’ll read it, if I may. I t’s four short lines? Q. Yes. A. It says, “We call upon our Mayor and Coun cil, the Board of County Commissioners, all County offi cials, the Board of Education, our State and local Judges, and our State legislators to join immediately in planning to meet the new era with sense and realism on the local scene.” Q. Do you happen to know whether that communication was answered by Dr. Weaver? A. Yes sir, it was. Q. I hand you what purports to be a copy of a letter signed actually by Dr. Weaver, dated February 27; is that the answer that you had in mind? A. That is. Q. And this that you’ve handed me is— A. —a photo stat of the original. Q. Is a photostatic copy? A. Bight. 122 Wallace Miller, Jr.—for Defendants—Direct Mr. Jones: We ask that this be identified as De fendant’s Exhibit D-5. (So identified) Q. What then happened, Mr. Miller, so far as the Board’s action was concerned, either as a result of or following the receipt of that communication? A. Well, Dr. Weaver, upon receipt of that communication, appointed a committee, entitled “Special Committee”, and he appointed it on March 17,1961, naming myself as chairman and as other members, Judge Atkinson and Messrs. Rankin, Hertwig, Pickling and Willingham, to read the letter, study the letter, and to answer the letter, if we thought any answer was necessary; and our conclusion was that the answer of Dr. Weaver was sufficient. Q. Now, picking up at that point, was there—you recog nized, of course, that the State laws, which we have previ ously mentioned, had been changed at that time? A. Yes sir. Q. Did there continue any problem of a legislative or statutory nature in the face of this particular Board doing anything? A. Yes sir, it was Section 5 of our charter, which was adopted in 1872 by the Legislature. Q. Would you read that into the record? A. All right, sir. “Section 5. Be I t F u rth er E nacted that the said Board shall establish distinct and separate schools and orphan homes for white and colored children and shall not in any event place children of different color in the same school or orphan’s home.” Q. At that time had any child or the parents of any child in the Bibb County School System applied for admission to a white school, as distinguished from a colored school; and, of course, I have reference to Negro children rather than to white children? A. You say up to that time, March 123 Wallace Miller, Jr.—for Defendants—Direct of 1961, and up to this time, to my knowledge, no colored child or parent has made application to attend a white school that was not admitted into the school applied for, if the pupil was qualified. Q. Did your Committee have several meetings at or about the time we are now talking about, say in the year 1961? A. We did, certainly did. Q. Did that Committee ever file any further report or recommendation in writing to the Board in connection with the matter? A. Not during the year 1961. Q. Was anything filed during the year 1962? A. No, I do not believe there was. The only thing before our Com mittee was this letter from the Council of Human Relations and we had concluded that no additional reply to the Coun cil was needed, in view of Dr. Weaver’s letter of February 27, ’61. Q. I now hand you a copy of a communication, dated March 8, 1963, addressed to Dr. Weaver, signed by seven individuals, Rev. E. S. Evans being the first name, and with that a copy of a letter, dated March 12, 1963 from D:r. Weaver to those same individuals: Are you familiar with that? A. I am. Q. Was that matter referred to your Committee? A. It was upon receipt of it. Q. And did your committee then again meet and consider it? A. We did. Q. Suppose you state, if you can, without me attempting to direct you, what steps 'were taken immediately thereafter, possibly starting with the appearance of the Committee, the appearance of these Plaintiffs before the Committee? A. Well, this letter of March 8, which you just referred to, 1963, signed by Rev. E. S'. Evans and six other parties, was answered by Dr. Weaver. Well, first, the letter was 124 Wallace Miller, Jr.—for Defendants—Direct asking for an audience to, quote, or “for (quote) the pur pose of airing certain grievances pertaining to public edu cation in Macon and Bibb County.” And under date of March 12, ’63, Dr. Weaver wrote the seven signers of that letter a response and told them, in substance, that the agenda for the next Board meeting, which was on the 14th, I believe it was, I may be wrong about my dates— Q. That is correct actually? A. Was already filled up but if they wanted to come at that meeting, that 5 minutes could be allotted to them. However, I believe Dr. W'eaver further said in that letter that, in keeping with the General Board procedure, it would be preferable if they would reduce their grievances to writing; and if they wanted to come at some later time, they could have more time, more than five minutes. Q. I would like right there to ask the reporter to iden tify both of these letters, the letter of March 8 and the letter of March 12? A. How about using this and let me have that one back ? Mr. Jones: Mr. Hollowell, I stated to you earlier that I was assuming you had all of these already, but I ’ll be glad to give you a copy of anything that you may wish me to. Mr. Hollowell: Maybe I had better check it and be sure whether we’re talking about the same thing. Mr. Jones: This is D-6, the two letters, both of them together. Q. Now, are you ready to go ahead from that point then and state what happened following that? A. At the meet ing of the Board, the regular meeting of the Board, on 125 Wallace Miller, Jr.—for Defendants—Direct March 14, 1963, which was the second Thursday in the month, the regular meeting date of the Board, there ap peared before the Board several of the parties who signed that letter. I cannot identify them all. I know that William P. Randall was there and I believe Rev. Evans was there and Rev. Malone was there, and I believe Lewis Wynne was there. I ’m not positive about the last, one, nor positive about any of them except William Randall, because I recall him, because he made the following statement to the Board, when Dr. Weaver asked him, gave him audience and gave him an opportunity to be heard; and he made to the Board a statement substantially thusly: “Mr. Chairman and gentlemen of the Board: We should like to present a petition from adult citizens of Bibb County, relative to the present status of the school system.” Mr. Hollowell: Well, excuse me just a moment, sir. What does this purport to be from which he’s reading now, from the standpoint of record? Does this purport to be a part of the resolution, not resolu tion but minutes ? Or is this a narrative of that which was allegedly said? The Witness: This is a copy, Your Honor, of what William Randall was reading from or had in his hand and was looking at when he was speaking to the Board on March 16, 1963, and left a copy or so with the Board, and I have a copy of it; and, rather than try to rely on my memory as to what he said, I was reading from what he left. It appears to be exactly what he said. Mr. Hollowell: Is this an official document of the Board? Is this an official document of the Board, 126 Wallace Miller, Jr.—for Defendants—Direct what you have retained as the secretary of the Board? The Witness: No, I wouldn’t say it’s official docu ment of the Board. I’d say it’s a memorandum that William Randall left with us on March 14, 1963. Mr. Hollowell: When you say “us”, you’re speak ing of the Board? The Witness: Speaking of the Board, of course. He laid it on the table. Mr. Hollowell: I think I would like to take a look at it before it’s read from into the record. The Court: Very wed. Mr. Jones: There are two papers here attached, Your Honor. One is a statement which counsel was just referring to, which is addressed to, “Mr. Chair man and gentlemen of the Board.” Attached to it is a paper bearing the same date denominated “Petition,” and referred to in the letter. The Court: Very well. (Documents handed to counsel Hollowed) . . . Q. Now, you may proceed, Mr. Miller? A. (Reading): “Mr. Chairman and gentlemen of the Board: We should like to present a petition from adult citizens of Bibb County relative to the present status of the school system. We had hoped that after presenting this petition, we might be able to discuss with you some of the reactions in the Negro community on this subject and to submit ourselves to questioning from you gentlemen. “However, with a limitation of 5 minutes renders this impossible. We would wish to convince you gentlemen that we are desperately anxious to have this situation re solved by the Board and local citizens, rather than by the 127 Wallace Miller, Jr.—for Defendants—Direct Federal Courts. We appreciate your suggestion that we reduce this matter to writing for referral to a proper com mittee, but we would respectfully remind you gentlemen that we did this very thing 9 years ago. The matter was referred to a committee. Said committee seemed to have been the grave yard for the petition as we have heard nothing from this committee as of this very moment. ‘“'You can appreciate the fact that time is of the essence in this instance and to delay our parents until your next meeting might seriously affect our efforts to have this matter settled by the next September term of school.” Now, that’s all that was said, and I might make this observation: Referring to petition of nine years ago, I do not believe that over one, if that many, of the signers of the petition of 1954 or ’55 were present at the Board meet ing on March 14. When they say “we”, they’re speaking of someone else other than themselves. Q. In any event, that statement was read at the meeting by Mr. Randall! A. On March 14,1963. Q. On March 14? A. Yes. Q. And there is attached to the paper from which you’re reading what purports to be a petition; was that then filed or was it read or what happened to it? A. It was filed. When I say “filed”, it was laid on the Board’s table out there, where we were meeting, in conjunction with this statment of William Randall’s that they wanted to petition the Board. Q. Now, I believe you stated that these were not official documents of the Board. Actually, do you happen to know whether they were picked up and preserved by Mr. Ghol- son? A. They were. Q. And retained in the files ? A. They were. 128 Wallace Miller, Jr.—for Defendants—Direct Mr. Jones: I would like to identify this letter, communication or this statement, of March 14 and the petition attached thereto. (Identified as Defendants’ Exhibit No. 7) Mr. Hollowell: Is it D-6 or 7 ? The Clerk: 7. Mr. Hollowell: What was D-6 then! The Clerk: It was two letters, letter of 3-8-63 and 3-12-63. By Mr. Jones: Q. Did anything else bearing on this matter transpire at that meeting or was that the substance of it? A. That was the substance of that meeting. Q. Now, was a subsequent meeting arranged by the Spe cial Committee? A. There was. Q. At which there was an appearance? A. There was; because of the statement that I just read about the limita tion to 5 minutes, I personally contacted William P. Ran dall, whom I knew before this occasion, and told him that we would give him a hearing and his committee or his group, would listen to them whatever they had to say since he said the 5 minutes was not enough on the 14th, at some particular date; and I believe he and I agreed on the date of April 8,1963. At any rate, that is the date that William Randall and Lewis Wynne and Rev. Malone and 3 or 4 others came to a hearing before the two special committees. I mean two committees. I might add that in the interim here—we passed over it—my special committee was appointed on this letter from Paschal, from the Council of Human Rela- 129 Wallace Miller, Jr.—for Defendants—Direct tions; and then when we got this communication on March 14,1963 is when— Q. March 8 probably? A. Was it March 8? Q. Well, that was the first letter? A. Let me get my record here and we’ll get it exactly right. Q. I didn’t mean to correct you but the communication which was received by letter was dated March 8, and the meeting at which they appeared was March 14? A. Well, sometime around—here I ’ve got it right here—on March 14 is the day that Dr. Weaver appointed the Rules and Regulations Committee, headed by Mr. William A. Fiebling, to serve jointly with my so-called “Special Committee” in this particular matter. And, as I say, William Randall and I agreed to a meeting at the Board office on April 8, 1963, and the meeting was held. Q. Excuse me—had you completed that statement? A. Well, I was just going to say and at the meeting every thing that was said was taken down on tape and has been transcribed. Q. Now, I don’t myself see any particular reason for going into the discussions at that meeting, but I will ask you if following that meeting you, as chairman of this committee, called on the Board’s counsel for a legal opinion of any sort? A. I did. It was very serious question in my mind and all of the other lawyer members of the Board; and when we discussed it—when I say “we”, the lawyer members of the Board, I mean on these two committees— we discussed it with the other members of the Committee, and they were concerned about this prohibition in Section 5 of our charter that made it mandatory, as I read it, for ns to maintain separate schools for the white and colored children; and I was fearful and the other members of the 130 Wallace Miller, Jr.—for Defendants—Direct committee were fearful that, if the Board under any cir cumstances attempted to operate segregated schools, that is schools wherein white and colored pupils were in the same school, that the State of Georgia might contend or the State courts might rule that we were without authority to operate anything but segregated schools; and we asked counsel, who was yourself, to give us an opinion on that particular point. Q. Do you have the original letter? A. I do. Q. In your files? A. I do, dated April 13, 1963. Mr. Jones: I ’m quite sure that Mr. Hollowell has not seen this letter, if Your Honor please, and I will now hand him a copy of it, so that he may refer to it. My recollection is that it was referred to and probably alleged in the State court proceeding which was filed and there may even be a copy of it attached to that; I ’m not quite certain. (Letter handed to Mr. Hollowell) . . . No, it’s simply referred to in the 7th paragraph of the complaint, as advice received by the Board from its counsel, without attaching a copy. Mr. Jones: I would like for the reporter to identify this letter as one of the Defendants’ exhibits. (Iden tified as Defendants’ Exhibit No. D-8) Q. Mr. Miller, following the receipt of that letter, did the committee or the Board give any direction to the Board’s attorney regarding further procedure? A. We did. The substance of that letter was, after reviewing the situation, that it was not a question that the Board’s coun sel wanted to determine in and of himself, and that it was a serious question; and that there was precedent both ways. 131 Wallace Miller, Jr.—for Defendants—Direct And, therefore, under date of April 24, 1963, the Rules and Regulations Committee and the Special Committee had a meeting and adopted a resolution and presented it to the Board, which was adopted by the Board, calling upon and requesting and directing the Board’s counsel to apply to the Courts for a determination of that particular question. Q. Do you have a copy of that resolution? A. Yes sir, Ido. Q. Could I have it? A. Yes sir (handing resolution to Mr. Jones). It has a little memorandum at the top that might not be relevant to the resolution but it is relevant to something else. Mr. Jones: Yes. Would like to see that, Mr. Hollo- well. (Tendering resolution to Mr. Hollowell). Mr. Jones: I ask that that be identified as De fendants’ exhibit. (Identified as Defendants’ Exhibit No. 9) . . . I might explain this note at the top, which, of course, has nothing to do with it, with the exhibit; but there is a reference there “Premature to say what the Board or any member might do pending a decision by the Court of the Board’s authority.” That, of course, is not offered as part of the exhibit and can be deleted at some proper time. Q. I presume that was a personal notation by you, I ’m not sure? A. That’s what I told the news media when they called me up, I forgot who it was, George Doss or one of them. Q. Now, Mr. Miller, following the adoption of that reso lution, is it a fact that the Board’s attorneys did proceed with the preparation of a petition? A. Yes sir. 132 Wallace Miller, Jr.—for Defendants—Direct Q. Who were the Board’s attorneys at that time? A. Yourself, Mr. C. Baxter Jones, and Mr. Charles C. Bloch. Q. Charles J. Bloch? A. Charles J. Bloch, I beg your pardon. Q. Did you on one or more occasions during the prep aration and drafting of that petition, confer with coun sel? A. Yes sir. Q. And other members of the committee to some extent? A. Bight, particularly the other lawyer members of the committee, and other members too, including Mr. Fielding, who, of course, doesn’t profess to be a lawyer. Q. I hand you a copy of the petition which was tiled pursuant to that resolution in the Superior Court of Bibb County? A. Right. Q. Is that a copy of it? A. This is it, yes sir. Mr. Jones: I ask that that be identified as a De fendants’ exhibit, (Identified as Defendants’ Exhibit No. 10) . . . Q. Now Mr. Miller, I ’m not concerned myself with the subsequent pleadings in that case, nor with the briefing or hearings in that case, but are you aware that the Superior Court of Bibb County, Judge Aultman, did render a de claratory judgment in that action? A. Iam. Q. Do you have a copy of that? A. Ido. Q. Is it in form that you could spare it for Identification in this proceeding, or I have a copy here? A. Here it is. Q. Is this the declaratory judgment order? A. It is. I t’s not dated, however. Q. I t’s dated by month, at least; what date does it bear? A. Blank day of July, 1963. Mr. Jones: I would like, if Your Honor please, to supply the exact date of that order wrhich I will 133 Wallace Miller, Jr.—for Defendants—Direct undertake to do, but at the moment I will ask that it be identified as a Defendant’s exhibit. (Identified as Defendant’s Exhibit D-ll) By Mr. Miller: A. I do know it was dated before July 30 of ’63. I think it was the early part of July actually. Q. Well, actually, if I should tell you that it was dated within the first three days of July and was then considered at a meeting that was called on the 8th, to be held on July 11, would that sound about right? A. Yes sir. Q. I think I ’ll just leave it there then? A. Yes sir. Q. Did the committee, of which you were chairman, then have further meetings and take further action in the light of the result of that declaratory judgment proceeding? A. We did, both committees. Q. Can you state when that was resolved by some form of resolution? A. On July 30,1963. Q. And do you have a copy of the resolution of the Board? A. I do. Q. Is that not the copy which is attached to the Defen dant’s answer in this present case? A. It is. Q. Is this a copy of it, Mr. Miller? A. It is. I have seen this before. That’s why I can identify it so quickly. Mr. Jones: I would like to have that identified. (Identified as Defendant’s Exhibit No. 12) Q. Mr. Miller, the conclusion of the action by the com mittee at that time was a recommendation that no voluntary plan of segregation— A. Integration. Q. —would be formulated, is that correct? A. No volun tary plan of integration. 134 Wallace Miller, Jr.—for Defendants—Direct Q. Yes, of desegregation or integration? A. That’s right. Q. Will you state the reasoning of the committee in reach ing that conclusion? A. Well, the reasoning is set forth about as well as could be expressed by me in the resolution. But No. 1, the committee felt, that is the majority of the committee felt, that the Bibb County system of education, since the inception of the Board in 1872, had been success ful, and that the founders of the Board were wise in putting- in the charter that the races be separated in the schools. And the Committee, of course, recognized the ease of Brown and the subsequent cases in the Supreme Court of the United States, reversing previous decisions of the Federal courts; and the Committee recognized what the courts would do on application to the courts for integration of the races. However, the majority of the committees, both commit tees, were of the opinion that it was not to the best interest of the white or colored people in Bibb County, Georgia, City of Macon or State of Georgia, for the colored and white to go to school together. That was the opinion of the majority of them, and the majority of the members of the committees, and subsequently of the Board, did not feel that it was incumbent upon the Board of Education to voluntarily inaugurate a system of education that the ma jority of the Board felt would be detrimental to the com munity, the children and the parents, thought that respon sibility laid elsewhere; and, therefore, took the action that it did. Q. Now had you, at the time that resolution was adopted, received any reason or any notification of the imminent filing of a suit in the United States Court? A. We did. 135 Wallace Miller, Jr.—for Defendants—Direct Q. In what form was that notice received? A. The form of the notice, it is paramount in my mind right now, was verbal from William P. Randall, who I might say appar ently succeeded as the head of the local chapter of the NAACP, when Dr. J. S. Williams left town early in ’55 or ’56, I believe it was. There was no action on any appli cation to the Board from about ’55 up until ’63 actually from any branch of the NAACP. Mr. Hollowell: We object to that, “who appar ently”, may it please the Court. If he knows, then I think it would be appropriate; but for him to say who apparently was the successor to Mr. 3. S. Wil liams in ’56,1 think is inappropriate. The Witness: Well, so far as any communication to the Board is concerned, I know that to be a fact. By Mr. Jones: Q. In other words, you know that Randall succeeded Wil liams or followed Williams at some time as chairman of the local branch of the NAACP? A. I don’t know actually whether he was chairman but he was the spokesman and the leading light and the one that contacted me. Q. He was the spokesman then? A. Yes. Mr. Hollowell: That’s ad right, “spokesman”. By Mr. Jones: Q. Now, when the resolution was adopted, what I was try ing to find out was whether it was then known or reasonably anticipated that the entire matter would immediately be referred to this Court? A. It was known in my mind from William Randall and maybe other sources. In fact, I think the resolution so states. 136 Wallace Miller, Jr.—for Defendants—Direct Q. I believe it does also? A. And I think where we got that was from William P. Randall. Q. You spoke a minute ago of certain attitudes and thoughts of the members of the Committee or the majority of the committee, regarding the desirability of certain things: Was there any attitude on the part of any member of the committee to resist a form of desegregation, or was that deemed to be inevitable and not resisted? A. Well, I don’t know whether the members determined that it was inevitable but there was, of course, a uniform and 100% feeling among the Board members that there would be no resisting to any legal, lawful integration of the schools in Bibb County, Georgia; and there won’t be any. I can say that. Q. There was no such feeling then and there is no such feeling now? A. Correct. Q. In this proceeding now, is the Board contesting a desegregation order? A. None at all. We are hoping and praying for moderation, so it will be without what we have read about happening in other cities. Q. What you have in mind is that you hope it will be an order which the Board can enforce? A. Yes sir, and be in moderation and gradualism. Q. Whatever the form of this order is, is it the bona fide and honest intention of the Board of Education to put that order into effect? A. Within the limits of our ability. Q. After this suit was filed in this Court, which followed very shortly, your committee then ceased to function as a committee; is that correct? A. Functus officio, yes sir. Q. And has there been any other special committee that you know of that has dealt with this subject since then? A. No sir. Mr. Jones: The witness is with you. 137 Wallace Miller, Jr.—for Defendants—Cross Cross Examination by Mr. Hollowell: Q. I believe you indicated in the beginning of the direct examination that you were among those lawyers who were members of the Board that were keeping up generally with the desegregation cases, as they related to public schools, right! A. That’s correct, and principally I will have to concede my source of information was the newspapers. I read very few cases, actual cases, reported cases. Q. When did you begin to read the cases! A. The first case I was was the Brown case; that’s the implementation of the Brown case I ’m talking about. Q. The’55 decision? A. The’55 decision. Q. When did you first read it? A. As soon as it came out, I forget. Q. And at that time the Board concluded that it would continue its same policy of segregation in the public school system, is that correct? A. I wouldn’t say the Board con cluded anything at that time. Q. Well, it continued to do so? A. No doubt about it. Q. And even as late as 1961, when the committee was first formed, there was no intention of desegregating then, was there? A. I won’t say there was no intention; no, I can’t say that, I can’t say there was or wasn’t, but I can— Q. No action was taken to that end? A. I think that’s a fair statement. I can say this though, if I may, between those two times you were talking about. Of course, I was on Judge Atkinson’s committee and we had two petitions that were signed by Dr. J. S. Williams, and I think Dr. Williams left Macon sometime in the early part of ’56; and we had heard nothing from any one the balance of ’56, ’57, ’58, ’59, ’60, ’61 and ’62, except this Human Relations; and, 138 Wallace Miller, Jr.—for Defendants—Cross frankly, I thought in my mind that the majority, to say the least, of the colored citizens of Macon felt like I did, that the system we had was what we wanted and what they wanted. Q. This was in your mind? A. It was; maybe it was wishful thinking but it was certainly there. Q. There hadn’t been anybody, any group, that had so told you? A. No. Q. Now, this charter provision, Section 5; you were aware that that section was there back in ’54 and ’55 and from then on up until the time that the suit was filed, weren’t you? A. I reckon I was aware of the fact that it was in there before ’55. I know I was aware of it in ’55 because it was pointedly brought out by this Brown case. Q. So that, actually the fact that the suit was ultimately brought concerning it was not with the view in mind of desegregating, was it? A. My own personal opinion, I can tell you what my personal opinion was. I can’t speak for other members. However, they voted along the same way I did. It wasn’t my idea, if the Superior Court of Bibb County, Georgia ruled that Bibb County Board of Educa tion could operate integrated schools, that we could volun tarily start integrating our schools. That was not in my mind. Q. And this was the attitude as ultimately expressed by the Board, by majority of the Board? A. In the reso lution. My thought about getting this order from the Superior Court of Bibb County, Georgia was, if Mr. Ran dall and his associates fulfilled their threat and went to the Federal Court and got an order requiring integration, that this Board of Education would be legally operating an integrated school; and I would not be satisfied of that until we got a decision from the State court as to our authority to operate an integrated school. 139 Wallace Miller, Jr.—for Defendants—Cross Q. I see; you felt that it took a court order from the Federal Court before you would be legally operating? A. No. Q. A desegregated school? A. No, I did not make my self clear. I felt that we would not and could not operate legally an integrated school until the State courts, State of Georgia courts so held. Q. Suppose a Federal Court so held that? A. I don’t think the Federal Court has got that authority. Q. Well, you said until a State court so held; say, sup pose a Federal Court so held? A. I was of the opinion that a Federal Court could not tell the Board of Education, an instrumentality of the State of Georgia, as to their con tractual relations between the two. I thought it took the State of Georgia courts to do that and still think so. Q. Is that so? A. Yes. Q. You would stand corrected, however, if shown to the contrary? A. If I ’m shown to my satisfaction to the contrary, I not only stand correct but I admit correction. Q. Mr. Wallace, at the time that the last resolution was passed by the Board and prior to the time that the suit was filed, there had been no change in policy whatsoever by the Board as relates to the maintenance of schools and staff in the public school system on a segregated basis, is that correct? A. If there has been any, I know of none. Q. Incidentally, were you here this morning when Dr. Atkinson suggested that school teachers who coached, in addition to carrying a regular class load, received extra compensation; did you hear that this morning? A. I think I did. Q. That’s not true at Ballard-Hudson and Appling High schools, is it? A. I thought it was. 140 Wallace Miller, Jr.—for Defendants—Cross Q. Do you know? A. I don’t know whether what Judge Atkinson said is true. I think it is. I ’ve never seen the pay checks. I ’ve never signed one and never delivered one. But I thought they got extra compensation for extra work. If they don’t, they should, white or colored. Q. In the preparation of this plan, there was an effort to move just as slowly as possible, consistent with taking- some kind of start; is that not true? Or making some kind of start? A. No, it certainly is not. I think there is some responsibility on the Board to recommend to this Federal Court that gradualism and moderation be practiced, be cause as a result of this thing, of this integration of the public schools, as you well know and as I know, can result between complete peace and tranquility on the one hand and utter chaos, violence and turmoil on the other. Q. Well, Mr. Miller— A. Now, that’s my reason for wanting to go slow. Q. I see. Now, do you know of any school, any grade school, any high school, where there has been, as you say and as you would suggest, a mass desegregation and that has resulted in any of the things that you are talking about? A. You say—• Q. If so, name me one? A. You say I ’m suggesting mass desegregation? I ’m not doing that. Q. I mean, you’re not suggesting that the presence of a few Negroes and whites together in a public school sys tem would be resulting in some kind of chaos, are you? A. Now, when you say a “few” colored students in a white school, how many are you speaking of? Give me the ratio, because I think it makes a lot of difference what the ratio is. Q. Well, let’s go back to the statement which you made? A. All right. 141 Wallace Miller, Jr.—for Defendants—Cross Q. Where you talked about all of these things which have taken place; what is the largest number of persons that you have known of in any school that has desegregated and where there was difficulty? A. First hand knowledge, none; all of mine is hearsay; television, newspapers, maga zines. I have no personal knowledge of any of it and I hate to gain some, I ’ll be honest with you. I don’t want any. Q. Well, as a member of the Board and as one who is working on the promulgation of a plan, wouldn’t you think it would be important to gain some knowledge on it? A. Knowledge of violence? No. Q. Knowledge of what the practices have been and knowl edge of what has transpired in those places? A. Well, I know of no means that are available to me other than the ones I ’ve utilized. Q. Papers ? A. Papers, magazines. Q. Magazines? A. Television, radio. Q. Have you read any of the studies? A. Read any of the what? Q. Any of the studies or any of the reports of schools that have been desegregated? A. No, no. Q. Then, really this is just some hearsay; this is just some conclusion that you have evolved in your own mind based upon some hearsay— A. And upon first Q. _reports ? A. —and upon first-hand experience as a bus boycott right here in Macon, Georgia, which you know a little about, and we had violence there. Q. We’re not talking about busses; we’re talking about schools? A. The same difference. I t’s intermingling of the races is what caused it all. Q. In your thinking. It might be just as well that it was the failure to integrate as well as the insistence on 142 Wallace Miller, Jr.—for Defendants—Cross keeping the busses segregated that might cause, that might have caused your difficulty? Mr. Jones: If Your Honor please, I don’t know who’s responsible for injecting the busses in here. It may have been the witness; but, if so, I move to strike his answer. Mr. Hollowell: As a matter of fact, Your Honor,— Mr. Jones: As well as all of the inquiry. The Court: What do you say to that, Mr. Hollo- well? Mr. Hollowell: I would have no objection to the whole of that bit of conversation being stricken. I don’t believe it’s appropriate, anyhow. The Court: Very well, we won’t go any further with it. By Mr. Hollowell: Q. So then, it is fair to conclude from your statements that you have no first-hand knowledge relating to anything that has happened in any of the schools that have been desegregated, whether they were de juri or de facto inte grated, isn’t that true, either in the North or the South? A. First-hand, the answer is no; and I wouldn’t have it first hand if I had read any treatise on any particular schools. Q. I don’t believe I have any further questions for Mr. Miller. Mr. Jones: You may come down, Mr. Miller. Oh, I ’m sorry, I wanted to try to clear up one thing. 143 Wallace Miller, Jr.—for Defendants-—Redirect—Recross Redirect Examination by Mr. Jones: Q. I ’m not certain that yon and counsel were talking to the same point in your last set of questions. A. All right, sir. Q. I understood you to say that the Board hoped that there would he a program of desegregation, which would permit a peaceful transition, rather than a program which would be so comprehensive and drastic as to create the opposite of that condition; was that what you were talking about ? A. That’s what I intended to say and I used the words “moderation” and “gradualism”. Those were my words. Q. You were suggesting that violence or chaos would— A. I ’m advocating the opposite. Q. —come from the desegregation proposal which is included in our plan? A. No sir, I ’m advocating exactly the opposite. I think our plan will be conducive to peace and tranquility in the so-called transition. Q. That’s all. Recross Examination by Mr. Hollowell: Q. Let me ask you a question then: The reason then that I conclude that you’re suggesting that there be this “snail’s pace”—I think that would be an appropriate con notation—is to avoid chaos and violence, etcetera; is that what you’re saying? A. Well, I don’t like your phrase “snail’s pace”. If you’ll rephrase your question, I ’ll give you the best answer I can but I don’t think I should be called upon to answer that sort of a question. Q. The slow pace of gradualism, which is inherent in this plan; does that clarify it for you? A. Well, No. 1, I don’t think it’s inherent in the plan myself. I think it’s fast enough. And that is one purpose of it, yes. That is one purpose of it, in my opinion, is to forestall as much 144 Wallace Miller, Jr.—for Defendants—Recross friction—you’re going to have some friction now, with this plan; don’t think you aren’t—I hope you don’t. Q. From your study of the cases, is that the basis for going slowly? A. That is one of the fundamental bases in my thinking, yes. Q. From the cases that you have read? A. From what? Q. From the cases dealing with these matters that you have read ? A. Oh no. Q. You have concluded that this is the law, as has been handed down by the courts of appeal and the 4th, 6tli and 7th circuits, in those courts? A.I don’t think I ’ve read that in any cases that I ’ve read or heard about. Now, I haven’t read many cases but I don’t think I ’ve heard that. Q. This is your own personal response then, is that correct? A. If I had some discretion in it like a Federal Judge has, that’s the way my thinking would be. Q. Even though the courts have said that this is no basis ? A. I don’t know that they have said that. Mr. Jones: Now, if Your Honor please, I must question that because the courts haven’t said that; at least, I don’t acknowledge that they have; and coun sel is testifying to his attitude and the Board’s attitude and not to an interpretation of some par ticular court decision. Mr. Hollowell: Well, if it please the Court, I think that in light of the testimony, as it has been elicited here, the question is most proper. Here is a Board, which is a self-perpetuating Board, has on it two Judges and two lawyers and has its counsel. They have all from time to time, it appears, deliberated; some of them have been on the committees, and sub committees ; they have litigated the matter in the State court—- 145 Wallace Miller, Jr.—for Defendants—Recross The Court: I know but you were raising a ques tion about what the courts have held. I ’ll hear from you gentlemen about what the courts have held on that. He said he’s just read the newspapers anyhow and you can’t tell what the court holds from the newspapers. Mr. Hollowell: I understood, Your Honor, that he has indicated that he has read some cases. The Court: He said, I thought he said he read even the Brown decision in the newspaper. Mr.Hollowe.il: No sir. The Witness: No, I meant to say, if I said it, I read the Brown decision in the Supreme Court Re ports but I ’ve left all of the other cases up to our able counsel to read and interpret. Mr. Hollowell: I think that clarifies the matter. I understood he had read some cases, Your Honor. By Mr. Hollowell: Q. Do I understand your testimony to be that the Board took as a reason, among others, for not moving forward after the State Court decision last July, the fact that a Federal Court case was anticipated? A. I didn’t quite follow that. I thought I was until you stopped and I thought you were going to say some more. Repeat that for me, please. Q. I say, do I understand correctly that one of the rea sons that the Board took the position that it would not act toward desegregating the public schools, was because a Federal Court case was imminent? A. I wouldn’t say that was the opinion of the majority. Q. They just felt that it was not the thing for them to do ? A. That’s exactly right. 146 Dr. Leon R. Culpepper—for Defendants—Direct Q. And they still so feel, is that not correct? A. I can speak for myself. I still feel that way. I can’t speak for the balance of them at this stage of the game. I would assume so. I haven’t heard to the contrary. Let’s put it that way Q. No further questions. Mr. Jones: That’s all, Mr. Miller. Dr. Culpepper, will you take the stand please. Dr. L eon R. C u l pe ppe r , witness called in behalf of De fendants, being first duly sworn, testified on Direct Examination by Mr. Jones: Q. You have already been sworn, have you not? A. Yes sir. Q. You are Dr. Leon R. Culpepper? A. That’s right, sir. Q. You are presently connected with the Bibb County Board of Education? A. That’s true. Q. Please state in what capacity at the present time? A. I am at present the Director of Research of the Bibb County Board of Education and Coordinator of Music. I also assist Mr. Gholson in some other projects. Q. Is it contemplated that you will act as coordinator or director in connection with the implementation of this plan which may be approved by the Court? A. I will assist Mr. Gholson in implementing this plan, yes sir. Q. In that particular connection, have you given con siderable study to the procedures for implementing the plan? A. I have, sir. Q. Now, going back a little further, please state how long and in what capacities you have been connected with the 147 Dr. Leon R. Culpepper—for Defendants—Direct Bibb County system? A. I came to Macon in 1947 as band director for Lanier High School, served there for 4 years; went back into the Navy for a couple of years; came back in ’53 and from that time until the present having been serving as coordinator of music; and since 1960 as director of research, in addition to the other job. Q. What does the term director—That’s since 1960, you say? A. Yes. Q. What does the term director— That’s since 1960, you A. Well, primarily, it is embracing our instructional area, where we will—in which we will make studies of this method as compared to another method to see which one will give the best results and if it’s worthwhile for us to begin implementing one of these methods of instruction, we will do so. Q. Generally methods which are suggested to improve the system of education? A. Yes sir. Q. And you are Director of Research in that particular area? A. Yes sir. Q. How old are you, Dr. Culpepper? A. I ’m 42. Q. You have read, of course, the plan which was sub mitted by the Board of Education to this Court? A. Yes sir. Q. And I think you said that you have specifically inter ested yourself in attempting to prepare various forms and procedures for implementing that plan? A. Yes sir. Mr. Jones: If your Honor please, I would like at this time to give to the Court, as we desire to make reference to it, a set of papers, with reference to which this witness will be asked to testify and I ’ve already given counsel a copy and I ’ll be glad to give him another one. Mr. Hollowell: Yes, if I might have another. 148 Dr. Leon R. Culpepper—for Defendants—Direct By Mr. Jones: Q. Dr. Culpepper, in the formulation of these imple menting documents, have you departed from or changed the plan, or are you merely implementing the plan! A. Merely implementing, insofar as I know. Q. Now, in the batch of papers that you have the first document there is entitled “Procedure” for executing stu dent transfer requests”? A. Yes sir. Q. And in outlining that procedure, I believe reference is made to other forms which are attached to it? A. Yes sir. Q. I think I will ask you to consider that opening paper entitled “Procedures” and state the substance of the pro cedures therein dealt with? A. Do you want me to just give the procedure? Q. Yes? A. That is in this? Q. That’s right? A. Well, in substance, it says, the plan does, to begin with, all existing school assignments will remain in effect until such time as the student makes a request for a transfer; and during the 30 day period, to be announced later at the end of whenever this Court designates this plan is approved, that there will be a 30-day period, at which time students can make transfer in ac cordance with the plan, which, of course, would be for the 12th grade for the next school year. Students who desire to make a transfer will report to the Board of Education office, where they will be given the request form; they will be given a set of instructions, to be sure that they fill the form out correctly; they will be asked to sign a receipt for these instructions and these forms. Q. Now, let’s stop right there, if you will? A. All right. Q. You spoke of being given an application form; is that attached to this ? A. Yes sir. 149 Dr. Leon B. Culpepper—for Defendants—Direct Q. Package! A. These pages are not numbered but it comes right after page 5. The procedure is 5 pages long and the next thing is the application blank. Q. And that is a blank form of application? A. Yes sir. Q. For the transfer or assignment of pupils? A. That’s right. Q. What information does that application call for? A. It asks for only the name, age, sex of the student, of course the date, the home address, the student’s birthdate, the parents’ names and their ages or the legal guardian; and if the child lives with which one, either the mother or the father or the guardian; asks for which school they are presently enrolled and which school they desire to transfer to and the reason for requesting a transfer; and then just a list of all of the schools— Mr. Hollowell: Excuse me, Doctor. If it please the Court, these forms, I would presume, are going to be introduced; and wouldn’t they more or less speak for themselves. I would submit that the form is attached here and it shows what it shows, without the necessity, I should think, of having the record cluttered and increased by merely a repetition of that which is already going to be in the record, I assume, by virtue of the submission of these procedures into the record. The Court: What’s your objection to having him explain it as we go along? Mr. Hollowell: Well, I think it’s one thing to ex plain it but that didn’t appear to be what was going on. All he was doing was just reading the form as is and this was what I was objecting to, Your Honor. The Court: Well, he was not reading it because I ’m looking at it. I read it before he got started, 150 Dr. Leon B. Culpepper—for Defendants—Direct the blank form there; but he was summarizing it. I think I ’ll let him go ahead. By Mr. Jones: Q. Go ahead, Dr. Culpepper— A. Then, of course, it asks for a list of all schools that they have attended, giving the date, and requires the signature of the student or the applicant and the parent and a witness. Q. Now, that is the only form of application? A. That’s right. Q. Which you have in mind providing? A. Yes sir. Q. Where is that application form to be obtained? A. At the Board of Education office. Q. Can it be completed there? A. Yes sir. Q. At the initial visit? A. Yes sir. Q. By the applicant? A. Yes sir, it can be completed in a matter of 3 or 4 minutes. Q. Does it have to be completed there at that time? A. It does not have to be completed there. Q. That means the applicant can take it away and have it completed and return it, is that right? A. Yes sir, and signed, as long as he has it witnessed by a witness. Q. Now, there was a reference to an information sheet, which was also given to the applicant at that time: is that attached as the next document in this set of papers? A. That is true, sir. Q. And what is the purpose of that? I ’m not asking for the contents or the total? A. Well, the purpose of it is to instruct the student as to how to sign this and to also give him other additional information about this procedure that will be followed, after he has turned the form in, what he can expect next. 151 Dr. Leon It. Culpepper—for Defendants—Direct Q. We will come back to that but, generally speaking, does that repeat really a great deal of the— A. Yes sir. Q. —material which is set forth in the first document! A. That’s true. Q. That is, the first document, entitled “Procedure for Executing Student Transfer” is an inter-office regulation or will be rather at the appropriate time! A. Yes sir. Q. And the student information form is designed to supply that information to the student! A. Yes sir. Q. And to some extent they overlap, is that a correct statement? A. Yes sir. Q. Now, the third document then that was referred to, you said he would be requested to sign a receipt for it? A. Yes sir. Q. Is that prepared and attached here following the information sheet? A. Yes sir, it is. Q. And it merely acknowledges receipt of the application and a copy of the information sheet, referred to above? A. Yes sir. Q. And is signed by the student? A. Yes sir. Q. Now, getting back then, all of that are matters which are handled on the first visit of the applicant to the office of the Superintendent, is that correct? A. Yes sir. Q. Suppose the application is then completed and filed, after proper information and whatever else goes with it, what happens to the application? A. Immediately the Superintendent then sends what we call a “student data form” to the school from which the student is presently or from where he was originally enrolled. Q. Well, we’re talking about applications for transfer, so we’re talking about students who are already in one school? A. Yes sir, so we will send it to his original school. Q. To the principal of that school? A. That’s right, to the original assignment, we’ll call it; and we’ll request 152 Dr. Leon R. Culpepper—for Defendants—Direct certain information, his transcript and additional informa tion like that. Q. Now, that “student data” form is also, I believe? A. Attached. Q. Prepared and attached here too? A. Yes sir. Q. And it is the document so identified immediately fol lowing the applicant’s receipt for the other? A. The re ceipt, yes sir. Q. Will you turn to that please in your set of papers? A. All right sir, I have it. Q. I ’ll ask you to read the communication from the Superintendent to the principal, the first four lines? A. “Dear Principal: The below listed pupil has made appli cation for transfer or reassignment to another school. Please furnish this office with a complete transcript of his or her work, a summary of additional information includ ing his or her attitude, cooperation and stability, plus his scores on the scholastic aptitude and achievement tests.” Signed “Julius Gtiolson, Superintendent.” Q. And there is a space following that for the student’s name and school and present grade? A. Yes sir. Q. With reference to the “complete transcript” what does that usually supply? What is the student’s transcript? A. The transcript is nothing more than the courses that the students have taken with the grades that they have made on these courses. Q. Is that necessary to have, in order to determine the eligibility of a student for a particular grade ? A. It would be, yes sir. Q. Now, there is a scholastic aptitude reference below that and an achievement record: will you please explain those? A. These are just routine tests that are given in our 8th, 9th, 10th and 11th grades. The scholastic apti- 153 Dr. Leon B. Culpepper—for Defendants-—Direct tude tests are given in all 8th and 10th grades in all of our schools and the achievements are given in the 9th and 11th. Q. Those are not tests which are to be made at the time of this application? A. Oh no sir. Q. But test records already in the student’s file? A. This is already in the student’s file, ves sir, at the school. Q. Going back to the first document, the procedure; after this request is sent by the Superintendent to the principal, then what happens? A. After he sends the student data form to the principal, the principal will fill this, the one that we were just looking at, he fills that out and sends it back to the Superintendent. And within ten (10) days from that time, after the student data form is received, the Super intendent will determine whether or not the student is eligible for transfer, and he’ll make the decision on his eligibility strictly on his record that came in, the tran script; also the availability and also the capacity of the school to which he asks for transfer to. Q. Now, you mentioned eligibility, availability and ca pacity? A. Yes sir. Q. I assume that eligibility has reference to the student’s advancement to the point with proper credits to entitle him to enter that particular grade, is that right? A. Yes sir, student completing the 11th grade in one school would be eligible to go into the 12th grade of another school. Q. That’s right, so that in the ease of any student who is a member of the 11th grade at the time this application is made,, or who has completed the 11th grade at the time the application is made, assuming that he does complete the grade, in the first instance, would be eligible. A. Yes sir. Q. Within the requirements? A. Yes sir, he would be eligible. Q. Under these regulations for that grade? A. Yes sir. even before any of these forms came in, he would be eligible. 154 Dr. Leon R. Culpepper—for Defendants—Direct Q. That’s right, he’s eligible but with the determination as to eligibility being measured solely by that consideration? A. Yes sir. Q. Then, you mentioned the term “availability”; now, are you there talking about availability of the facilities to the student, the student to the facilities or just exactly what? A. Mainly, the student to the facilities. It would be a little unwieldy for a student, say over across the river, to ask to go to a school away out in South Macon. And so, that’s what we mean, available as far as transportation and close proximity to the school. Q- Now, in the absence of close proximity, could that necessary proximity be supplied by adequate transporta tion arrangement? A. Yes sir. Q. Then, when you refer to the term “availability”, do you understand it to mean that it will be accessibility of the school to the student? A. That’s mainly, yes sir. Q. From the point of view of his residence and available transportation? A. Yes sir. Q. Now, based on that determination, if that availability exists, do I understand then that he would be entitled? A. He would be accepted, being eligible and available. Q. The third test or third factor to be considered is the factor of capacity, and what do you there have in mind, capacity of what? A. There, that means strictly the physi cal capacity of the building. You can get only so many desks in a room. If you’ve got the capacity that you can put in there, you can’t add more. If there is space, he would be taken. Q. Then, in the operation of this plan, do I understand, as you have prepared these papers—- A. Yes sir. Q. —with some assistance, of course, do I understand that if a transfer is requested by a Negro student to a white 155 Dr. Leon B. Culpepper—for Defendants—Direct school in the 12th grade, if he is eligible on the basis of his record, if the facilities are in such proximity or other wise as to be available to him, and if the school has capacity to receive that student, then a determination would be made approving the transfer, is that correct? A. It would be approved, yes sir. Q. Now, I ’ll ask you to read the next paragraph of the procedures, paragraph 7? A. “Before taking final ac tion on a requested transfer the Superintendent may de cide that a conference is necessary with the applicant and his or her parents or guardian to point out and possibly clear up discrepancies or irregularities on the face of the record, and before approving the application the Super intendent may decide that such a conference is desirable to point out other reasons, if any, why in his opinion it is not in the applicant’s own best interest to actually make the requested transfer. The applicant may after such confer ence accept or reject the Superintendent’s advisory recom mendation which shall be noted on the application.” Q. Under what conditions can you consider that the Superintendent might deem it advisable to confer with the applicant and to advise him that it is not in his best inter est to make the transfer? A. Well, we have certain stand ards in all of the schools. If the student transferring was just barely passing and yet he was asking to enroll in the 12th grade in a college preparatory class with students that had had subjects maybe that he had not even had the background for, it might be that the Superintendent could see that he would be floundering if he was put in there, and it might not be to his best interest to get in a class there where he would almost probably fail. Q. To what extent, if any, would the indications from the scholastic aptitude test which had been taken enter into that consideration? That deals with the subject of mental 156 Dr. Leon R. Culpepper—for Defendants—Direct maturity, as I understand? A. Yes sir. Well, there again, if you saw the mental maturity of a student and saw that it was not sufficient, that the student wouldn’t be able to keep up with the mental maturity of the other group that he was going in with, it might be there that he would have reason to want to talk with the student and counsel with him. Q. On this subject of mental maturity, how is that graded, generally in terms of 12th grade maturity, 9th grade ma turity, 6th grade maturity and so forth, or what are the gauges by which mental maturity is expressed? A. A mental maturity is usually referred to as intelligent quo tient, IQ ; and that’s usually a number, a raw score. Q. Well, in any event, if I understand then, there might be cases where the Superintendent thinks, considering the IQ of the applicant and the mental maturity in whatever form it may take, that he is better off where he is than to transfer, is that correct? A. Yes sir, that would be a case where he might counsel with him. Q. Then, do you understand that, if he should so counsel the applicant and the student nevertheless wanted to make his transfer, he would be permitted to do so ? A. Yes sir, he would still allow him to transfer. Q. Then, there follows paragraph 8 and subsequent paragraphs with various procedures for hearing before the Board, if desired, and the determination of the question by the Board, and I do not think it’s necessary to go into that in detail, but that is the substance of the content of paragraphs 9 and 10, which follows? A. Yes sir. Q. Turn to paragraph 11, which deals with the admis sion of pupils in the adult vocational program and advise the Court how that will operate? A. Well, this is a little different. As it states there, admission to this program will 157 Dr. Leon R. Culpepper—for Defendants—Direct be by vocational aptitude and classification test, pins a per sonal interview. And I might say that the reason for these tests is you’re .strictly finding out if the person here has the dexterity of the hands to do this particular job, so that he wouldn’t get his hands cut off in machinery or something. I t’s a type of vocational aptitude test; they’re given that and they’re presently giving those. Q. I started to ask you, are tests of that character, apti tude test, applied in all vocational courses? A. Yes sir. Q. If a person wants to take a course in electronics of some sort, would there be an aptitude test? A. Yes sir. Q. To determine whether or not he should enter that class? A. Yes sir, there are. Q. Are they applied entirely without distinction based on race? A. Oh yes sir. Q. You’re familiar with the provision of the plan that in the field of adult education— A. Yes sir. Q. —no person will, on account of race, be denied en trance to any course available in the adult education pro gram? A. That is already in existence. Q. That’s in existence? A. And it’s also in the plan. Q. Well, it’s in the plan? A. Yes sir. Q. Actually, whether it’s in the system or not, I don’t know whether it would be entirely accurate for you to say but there is— A. I said in existence. Q. In existence; now that’s correct, in existence now? A. Yes sir. Q. That is in existence now?. A. Yes sir. Q. Dr. Culpepper, I would like to direct your attention to paragraph 13 and particularly to the last sentence of that paragraph, on the subject of disciplinary difficulty: Do you know the present provisions of the printed rules dealing with high school student transfers on the subject of dis ciplinary difficulty? A. Yes sir. 158 Dr. Leon B. Culpepper—for Defendants—Direct Q. What is it? A. It states that no student will be al lowed to transfer just to keep him—if he’s in disciplinary trouble at one school, he’ll not be allowed to transfer just to get out of trouble. Q. Does this to some extent modify that complete prohibi tion? Will you read that? A. It says “For this reason alone” he’ll be denied transfer. Q. Read what it says? A. “A person in disciplinary dif ficulty at one school may for that reason alone be denied transfer from that school to another.” Q. I was trying to see if there was a distinction between the words “shall be denied” and “may be denied”? Do you understand that distinction? A. Neither of those words appear in this sentence. Q. Well, the sentence speaks for itself? A. “May for that reason”—beg your pardon—“may for that reason alone; but it does not mean it has to be. Q. Well, that’s what I wanted to show? A. Such as the State rules now implies. Q. Well, that’s what I was trying to make clear? A. Oh, I beg your pardon. Q. The present rule in the printed books says he “can’t”? A. That’s right, “cannot”, and this says it will not neces sarily. Q. And this rule modifies that to say “may”? A. I ’m sorry; I misunderstood what you were asking me. Q. Is that correct now? A. That is true, yes sir. Q. We’re together on that? A. Yes sir. Q. I don’t believe, Dr. Culpepper, it’s necessary to go over and review the further paragraph there. Now, there is one final document, which is attached to these papers, which is entitled “Administrative Regulations” : Those are regulations designed to aid the staff? A. Yes sir. 159 Dr. Leon R. Culpepper—for Defendants—Direct Q. In the application of them, and, generally speaking, they are not of particular interest to the student himself, but govern or guide the staff in providing it? A. Yes sir. Q. Now, you stated that it was anticipated that you would assist the Superintendent in the capacity of coordinator or director of this program. Do I gather from that, that you expect certain of his duties to be delegated to you? A. Yes sir. Q. Do you understand that you, as the person to whom the duties were delegated, would generally handle the processing of these applications? A. I expect to, yes sir. Q. I go back then to the student data form which—I don’t mean “student data form”—but I mean to the informa tion sheet, which is given to the student? A. Yes sir. Q. And is there anything in there substantially different from that which we have examined in the opening paper, set forth in the procedures? That is, is there anything in the information given to the student who makes the applica tion substantially different from what we have covered? A. No sir. Q. In the first document? A. No sir. Q. Dr. Culpepper, in the administration of this program, is it your intention in good faith to give complete and full effect to any order of this Court in the administration of these procedural plans? A. Absolutely, yes sir. Mr. Jones: The witness is with you. The Court: I think we’ll rest now for 10 minutes. R ec ess : 3:30 PM to 3:45 PM, A pril 13, 1963 Mr. Jones: I ’m through with the witness. The Court: All right, Mr. Hollowell. 160 Dr. Leon B. Culpepper-—for Defendants—Cross Cross Examination by Mr. Hollowell: Q. Doctor, what is your doctorate in, sir? A. Doctor of Education, with major in Music Education. Q. As such have you had training in the administration of school plans as relates to general administration? A. I have a minor in school administration, if that answers your question. Q. That’s on the doctorate level? A. No, that’s on the master’s level. Q. On the master’s level? A. Yes. Q. And your Master, I presume, was in Music Education? A. Major. Q. Your major was in— A. —Music Education. Q. Your major was in Music Education? A. That’s true. Q. Doctor, in your studies, did you have the occasion to study the beginning of a system of desegregation on a re verse stair-step plan? Do you understand what I have reference to? A. I understand what you’re saying. Q. Did you have any study relating to that? A. The studies that I made mention to Mr. Jones were studying desegregation plans, but studying plans of implementing the plans themselves, just the paper work procedure that follows. Q. I see? A. To be followed. Q. As a matter of fact, you’ve never had any study at all in any of your studies which would indicate to you that it would be better procedure to start at the top of the school system in the inculcating of a new plan than to start somewhere near the bottom, have you? A. I ’ve had no studies whatsoever. Q. Do you know what the reason for having the student to apply at the Superintendent’s office for the blank for 161 Dr. Leon B. Culpepper•—for Defendants—Cross transfer is? A. That is the normal place where blanks are kept that are issued out to schools, the central office. Q. Wouldn’t it be more convenient for them to be avail able at the principal’s office, a place where students were familiar with going? A. It might be more convenient. I can see some inherent weaknesses there. Q. Well, I mean is there some attempt to restrict? A. No, just to keep up. Q. Sir? A. No, just to keep up with the requests and make sure it doesn’t get lost, or that someone files it away and it doesn’t get to the proper hands. Q. You’re not suggesting that the principals are incom petent? A. No. Q. Referring to the plan, sir, that is the procedure; you have a copy of it with you, do you not? A. Yes, I do. Q. May I ask you this, as we refer to paragraph 6, the latter portion of it, dealing with transfers: What is the basis for the school system furnishing transportation? A. Are you on page 2? Q. On page 2. I have not actually addressed myself to the paragraph 6 specifically, except insofar as it says, “Within a 10 day period after the student’s transcript and Data Form have been received at the Board of Education, the Superintendent will determine whether the student is eligible on his record to be enrolled in the grade requested, whether the school to which transfer is requested is avail able to the student on the basis of its location and usable transportation facilities.” Anri really, what I ’m asking here is whether or not the school furnishes any transportation facilities and, if so, what is the basis for it? A. The Board of Education fur nishes transportation, some bus facilities. Q. What is the criteria? A. I don’t believe I ’m qualified to answer. 162 Dr. Leon B. Culpepper—for Defendants—Cross Q. Well, you are the administrator of this plan, aren’t you? A. But I ’m not the administrator of the bus system. Q. Or the coordinator of the plan? A. Of the plan, yes, but I ’m not the bus superintendent. Q. Well, wouldn’t you submit that since transportation facilities or usable transportation facilities are one of the provisions which form a basis of determining whether one is to be transferred, that it would be important to know something about the transportation system furnished by the Board of Education? A. I would consult with the Superintendent of Transportation, I ’m sure, quite fre quently. Q. But you don’t know as of now what is the basis for a student receiving transportation by the Board? A. There are regulations as to how far he lives out and how far away from a city bus line and all, but I do not know exactly the answer to the question. Mr. Jones: May I state that Mr. Gtholson will at tempt to supply that information when he takes the stand, Tour Honor. That may help counsel. The Court: All right. By Mr. Hollow ell: Q. Do I understand, Doctor, that as to the Student Data form, that as a matter of course— A. Next to the last sheet. Q. I ’m not sure that my copy is accurate; let me see just a moment. The copy which is attached to this one just doesn’t have a caption up there. Mr. Jones: It’s identified at the bottom. The Witness: I believe it’s at the bottom. 163 Dr. Leon E. Culpepper■—for Defendants—Cross By Mr. Hollow ell: Q. Oh yes, you have it down at the bottom over here, all right. Now, as to that Student Data form, these tests that are referred to under scholastic aptitude and under achievement have already been given in the 8th and 10th grades and in the other grades as shown on that sheet? A. That is true. Q. These are given as a matter of course? A. As a mat ter of course in every high school. Q. All of the high schools of the City? A. That’s true. Q. And so, this information would be regularly available? A. That’s true. Q. Without the giving of any additional tests? A. That’s right. These tests are given by the High School Guidance Council, the same test to all tests. Q. Now, I believe, in answer to a question which was propounded to you by Mr. Jones, you said that if a person sought a transfer and say that person’s aptitude was not quite what it ought to be, say he just passes; and if he sought to transfer to a school where the median average was higher than his average, or even the average of the school from which he was seeking transfer, that the Superin tendent’s recommendation would not necessarily be bind ing upon the student? A. That is true. Q. And that the Superintendent could or would permit the transfer, all other things being equal?, A. That is true. Q. Now, which is it, he could or he would? The reason I ask that, if I might by way of clarification, Doctor, is I got the impression from you that the Superintendent would automatically go ahead and permit this person to transfer, presuming that he had met the required grade, passing grade— A. That’s true. 164 Dr. Leon R. Culpepper-—for Defendants—Cross Q. —and other things being equal, that even in a situation where the median in the school to which he desired to go was somewhat higher than that where he had been going, that the Superintendent would permit that transfer! Do you understand! A. I understand your question, yes. He would probably counsel with him and tell him that “it’s going to be rough on you and you might not make it here and it probably would be a good thing for you not to try in this particular class or this particular school.” But if the student wants to, he would still approve it. Q. He would still approve it! A. Yes sir. Q. And this would be—suppose this was a school, a high school which was located in say Southwest Macon, and this was a student that wanted to transfer from Appling High School to the high school over there, and because of the general hostile attitude, we’ll say, the Superintendent thought that this person would not be able to quite get along over there, but scholastically the student was capable, would there be a requirement, as you understand the plan and as the coordinator, that this person would be transferred or not? A. He would be probably disqualified because of the second reason, the availability. It would be much more available to him to go to the school, Lanier, and not have to go another four miles out in South Macon. Q. Well, we did not say where he lived? A. You said he was in Appling. Q. We just said he went to Appling? A. Well, students only are at Appling that live on that side of the river. Q. Is it your understanding, Doctor, since we’re on that point—well, let me strike that and ask you this— Do you know where the Pleasant Hill area is? A. Generally. Q. Is that on this side, that is the west side of the river? A. Yes. 165 Dr. Leon R. Culpepper-—for Defendants—Cross Q. Or is it on the other side? A. I take that back. I made an incorrect statement. They do draw from over on this side of the river. Q. All right, they draw from this side of the river? A. Yes. Q. How many high schools are there within a mile radius of Pleasant Hill? A. How many high schools? Q. Yes? A. Oh, to my knowledge, only two. Q. What are they? A. Well, four, counting the junior highs, Lanier Junior and Senior and Miller Junior and Senior. Q. I ’m sorry? A. Miller Junior and Senior and Lanier Junior and Senior. Q. And Dudley Hughes? A. Dudley Hughes, I think it would be out of the area myself but it might be. Possibly I don’t know the limits of Pleasant Hill. Q. Would it be more than a mile? A. The limits of Pleasant Hill. Q. Excuse me, would that be more than a mile? A. I think so. Q. How much more? A. Pleasant Hill, as I understand it, does not go beyond Vineville Avenue. Q. Does not go beyond Vineville west, right? A. True; that’s what I think. Q. And does not go beyond, say the Alpine Lodge, gen erally north? A. That’s true. Q. And would be bound generally on the east by River side? A. That would be my understanding. Q. And on the south by the downtown area? A. The downtown area. Q. Now, there are how many high schools in that area? A. There are none in that specific area. Q. Now, there are at least three high schools that are within a mile of that area, is that not correct? A. I don’t believe it’s true. 166 Dr. Leon B. Culpepper-—for Defendants—Cross Q. What would you suggest the nearest high school to it! A. Lanier. Q. From the standpoint of distance would be! A. Lanier Junior and Senior. Q. And that would be about how far from Vineville! A. At the closest area it would probably be not more than 2,000 yards. Q. 2,000 yards; so, that would be just slightly, just slightly more than a mile! A. That’s right. Q. Approximately a mile! A. Approximately a mile. Q. And Miller is approximately ? A. Two blocks farther. Q. Approximately a mile! A. (No answer) . . . Q. And Dudley Hughes is approximately—well, it’s actu ally right at the edge of the area, isn’t it! A. My under standing of it, it is not but I won’t say that it’s not. Q. Well, I mean isn’t Dudley Hughes right up here on Orange Street! A. Yes, it’s on Forsyth and Orange. Q. All right, Forsyth and Orange, and doesn’t Forsyth run right smack through the Vineville area! A. Yes, on out. Mr. Jones: Your Honor please, I thought his question was directed toward the Pleasant Hill area, which, of course, is not the Vineville area as such; and I think the witness is comparing what he under stands the Pleasant Hill area to be with the distances to these schools. By Mr. Hollowell: Q. Well, this is what we’re talking about. Let’s take Pursley Avenue or Second Avenue or Third Avenue, would it be any further from those streets generally to Dudley Hughes than it would from Lanier and Miller! A. Prob ably closer. 167 Dr. Leon R. Culpepper-—for Defendants—Cross Q. However, the students of Negro extraction who live in Pleasant Hill travel to Appling, don’t they? A. To my knowledge, they do; to the best of my knowledge. Q. Now, how far would you suggest that Appling is from, say Second Avenue or Third Avenue? About 3% miles? A. At least. Q. At least? A. Yes. Q. And if a student who lived in the vicinity of Appling wanted to go to school at a vocational school, he would have to pass generally Dudley Hughes and then travel another mile and a half to get to Ballard, wouldn’t he? A. In the past that has been true. In the plan we will not, we will let 12th graders who want to transfer transfer. Q. I see but if he wasn’t a 12th grader? A. He would still have to go there. Q. He would still have to go, say—that’s nearly 5 miles, wouldn’t it be, from the vicinity of Appling to Ballard- Hudson, would be approximately 5 miles, wouldn’t you sug gest? A. More than 5 miles. Q. More than 5 miles ? A. Yes. Q. Now, let me ask you this, sir: There being but two Negro high schools in the City, those high schools are un duly crowded even as of now, are they not? A. They are crowded. Q. Would you say that the 17—well, there aren’t 17, what are there—5 or 6 white high schools are equally as crowded? A. Not quite as much so, Q. Yet, there is no provision in the plan for the reliev ing of the crowdiness that exists in Ballard and in Appling as of this time? A. Any 12th grader that wants to, that would be approximately 1,000 students that could transfer if they qualified. Q. Then, this is outside of the 12th grade? A. I ’m talk ing about the 12th grader. 168 Dr. Leon R. Culpepper-—for Defendants—Cross Q. 12th grade and 12th grade only? A. Yes. Q. And is this one of the reasons why there is the effort at starting in the 12tli grade? A. I did not make the plan. I could not give you the reasons why the Board members that were instrumental in developing this plan, what their reasoning was. Q. Well, let’s look at the grade school, s ir: Is it not true that even most of the grade schools in the Negro areas are crowded? A. Some of them are. Q. Most of them are, isn’t that true? A. No, I don’t think so. I know of 3 or 4— Q. Beg pardon? A. I know 3 or 4 or 5 and there are 14 of them, so I don’t believe 5 is a majority. Q. You know of 3 or 4 or 5 which are overcrowded? A. Right. Q. Only that many? A. That’s the only ones that I’m sure of. Q. Now, what about in the white schools, what would be your suggestion as to the percentage of over-crowdiness there? A. Approximately—percentage you’re asking for? Q. Yes? A. Well, it would be approximately 50 per cent less that are overcrowded; but there are still about 3 or 4 or 5 and there are almost twice as many white schools as there are Negro, elementary schools. Q. Even though in ’62-63 there were some 19,682 white students and some 11,442 Negro students, there were some 34 white schools, as against some 17 Negro schools, is that correct, to the best of your knowledge? A. You’re speak ing of elementary and white ? Q. Yes, elementary and high schools? A. Elementary and high schools; yes, that’s true. Q. And in this plan there is nothing that is designed to alleviate that condition, is there, as you understand it, from the standpoint of your position in coordinating it? A. I would like to have the question again, please. 169 Dr. Leon B. Culpepper—for Defendants—Cross Q. I say, from your position as the coordinator of the Plan, you have found nothing therein which was designed to alleviate this disparity in the availability of additional space to relieve overcrowdiness in the Negro schools? A. There’s nothing in this plan that will change the percentage of Negro and white students in the Bibb County schools, no. Q. Now, in connection with one of the questions asked of you by Mr. Jones, there were three criteria set up rela tive to the matter of transfer, would you— A. That’s true. Q. —would you want to repeat them? A. Eligibility, availability— Q. And when you say “eligibility”, what does that mean here? A. That means that the student has, if he’s in the 8th grade and completes all of his work, he’s eligible to go to the 9th grade. Q. All right, that means that he has made passing marks? A. Eight, he has passed his work; true. Q. The next is? A. Availability—excuse me—I thought you were going to tell me? Q. No. Availability of school space in the school to which he wants to go or what? A. No. That was where we were talking about the close proximity to the school, availability of transportation; either a school bus went by there or city busses went by there to take this student to the school that he’s asked for. That’s what we mean by that. Q. Availability of transportation then, is what you have reference to ? A. That’s the main part of availability, true. Q. Suppose he had a car? A. It would be available then. That would not be a detriment or a hindrance to his ac ceptability. Q. And what was No. 3? A. Capacity of the school. Q. This is capacity in the school to which he wants to go? A. That’s right. 170 Dr. Leon B. Culpepper—for Defendants—Redirect Q. Now, does this relate only to transfers under the Plan or does this relate to transfers generally? A. Does what relate to it? Q. These criteria? A. These criteria relate to all trans fers. Q. To all transfers? A. True. Q. I notice in paragraph 9 on page 3, there is no provi sion for a written notice, although there is a provision in the paragraph immediately above, that the request be made in writing: Was this an oversight, or do you know? A. It was strictly an oversight. The Court: Which paragraph is that? Mr. Hollowell: This is paragraph 9. It merely says that 10 days notice will be given. It does not say that 10 days written notice will be given, although there the onus of making the request in writing is upon the individual seeking to get a hearing. The Witness: That was an omission left out by the secretary who typed it up. Mr. Hollowed: May I submit, Mr. Jones, that for the purpose of the record, we could instanter insert the words “written notice” there? Mr. Jones: Absolutely, if you wish. Redirect Examination by Mr. Jones: Q. Could you tell us, Dr. Culpepper, when these procedure sheets were made up? A. Last night about 10 o’clock. Q. Have you been working on them for some time? A. I have been working on them, I guess, for a year. Q. At the time of the filing of this plan of integration, was there in existence at that time a formulated detail of pro cedures at all comparable to what we are here dealing with? A. Yes sir. 171 Dr. Leon R. Culpepper—for Defendants—Recross Q. Where is it! A. I have some in my files over here. They were just revised; these are the same ones, the same things, except they have been revised. Q. When you say that they were “formulated”, you mean you had prepared some suggested procedures? A. Yes sir, that’s right. Q. Had they been gone over and approved and accepted by the Board? A. They had been gone over and revised 3 or 4 times by the Superintendent and the committee of the Board had seen some of them. Q. Are these in the same form that you have in your files now? A. Basically, they are the same. Some things have been added, some things have been taken out. Q. Well, are they the same then? A. No sir, they are not the same. Q. Well, that’s what I mean; you have added some things and you have taken out some, revised some things and you have rewritten some things? A. Yes sir. Q. And you say those were put in final shape yesterday? A. Yes sir. Recross Examination by Mr. Hollowell: Q. You said you had been working on this plan, admin istrative plan, for about a year; is that correct? A. True. Q. At whose direction? A. At the Superintendent’s di rection. Mr. Hollowell: All right, no further questions. Mr. Jones: Your Honor please, we would like to have the reporter identify this collection of papers, including all of the attached documents which we’ve gone over The Court: Yes sir. (Identified Defendant’s Exhibit #13.) 172 Julius L. Gholson—for Defendants-—Direct M e . J u liu s L. Gholson witness called in behalf of De fendants, having previously testified on adverse examina tion and first duly sworn, testified Direct Examination by Mr. Jones: Q. Mr. Gholson, you are the Superintendent of the Bibb County Board of Education, the Bibb County School Sys tem, I mean? A. That’s right. Q. How long have you held that position? A. This is the 5 th year. Q. Prior to that time, well, let’s get that, let’s fix that by the calendar: When did you first occupy that position, in what year ? A. At the beginning of the ’59-60 school year. Q. That was during the year 1959, but at the beginning of the ’59 or prior to the beginning of the ’59-60 school year? A. Yes sir. Q. Whom did you succeed as Superintendent? A. Dr. Mark Smith. Q. Do you know how long he had been Superintendent of the schools in this County? A. Approximately 20 years, I believe. Q. Did you have a position with Dr. Smith prior to the time that you succeeded him as Superintendent? A. I did. Q. What was that position? A. I was Assistant Super intendent. Q. What was the state of Dr. Smith’s health in the last several months of his life? A. He had bad health. Pie was ill. Q. And finally gave up the position of Superintendent and you took his place? A. Yes. Q. Now, when did you go in as Assistant Superinten dent? A. At the beginning of the ’58-59 school year. 173 Julius L. Gholson—for Defendants—Direct Q. So that, your relationship with the office of Super intendent, first as Assistant and then as Superintendent, actually started at the beginning of the 1958-59 school year, is that correct? A. That’s correct. Q. Prior to that time had you had any position in the general office of the Board or in the Superintendent’s office? A. No sir, I had been principal. Q. What school were you principal of? A. For one year, the year immediately preceding, the Superintendent’s As sistant Superintendent’s position, I was principal at McEvoy High School. Q. And prior to that time what was your position? A. For two years prior to that I was principal at Alexander IY elementary school. Q. And then, prior to that what was your connection? A. Prior to that, with the exception of four years away in the Army, I was a teacher at Lanier High School. Q. Starting at what time? A. Starting in 1937. Q. So that, from 1937 until the present time, as a teacher in Lanier High School and then in the successive positions which you have mentioned, with the exception of the time that you were absent in the Service, you have been con nected with the Bibb County School System? A. That is correct. Q. Mr. Gholson, I think I referred to the fact that Dr. Culpepper would have delegated to him certain of your duties. That has not actually been done at the present time, has it? A. No, it hasn’t. Q. In dealing with the subject of delegation of duties, does that mean that you are divesting yourself of that duty, or are you simply getting someone to help you, to assist you in connection with it? A. I ’m asking his assis tance for that particular thing. I still will be responsible for it. 174 Julius L. Gholson—for Defendants—Direct Q. You still are the Superintendent of Schools? A. Yes sir. Q. And everything that’s done in the name of the Super intendent in connection with this plan is actually your act and your responsibility? A. That is correct. Q. Is this system small enough that one man could attend to all of the details that the Superintendent normally has to handle, or does he have to have assistance? A. I t ’s almost triple what it was when I started. Q. Well, is it a one man job? A. No sir. Q. Or is it a staff job? A. It requires a staff. Q. In connection with the procedures which Dr. Cul pepper has been discussing, were you consulted or did you consult with him in the preparation of those? A. Yes, I did. Q. I asked him how long they had been in preparation; can you perhaps be a little bit more specific as to what steps have taken place in the formulation of these pro cedures? A. Well, at what place would you like for us to begin? Q. Well, the State Court suit was filed following the re ceipt of a letter in February of 1963; had you started then to formulating procedures for the esecution and implemen tation of a plan of desegregation? A. We had been think ing about it for some time. You could see what was taking place everywhere and we had been thinking and working along that line. Q. Very well; I ’m afraid I ’m not communicating myself to you and I think maybe the best thing to do is to just leave it where it is and see if maybe I can develop it later on. In any event, is it correct that this present set of rules of procedure were completed and put in their present final form as late as yesterday? A. Yes sir. 175 Julius L. Gholson—for Defendants—Direct Q. A number of questions have been asked, some were asked of you when you were on the stand earlier today, and some of Dr. Culpepper, with reference to the numbers of schools and students in the Bibb County system, and to some extent their locations. I would like— You are fa miliar, of course, with the entire school system, so far as physical plant location is concerned, are you not? A. Yes sir. Q. In the first place, what is the population of Bibb County approximately? A. Approximately 140,000. Q. And does the Bibb County School System, does the Bibb County Board of Education operate the public school system throughout that entire area of the County? A. For the entire County. Q. There is no other system for any portion of the County? A. No sir. Q. What is the school population at the present time; that is, during the present 1963-64 year? A. Our total enrollment is around 37,000. Q. That is not the same thing as daily average atten dance, of course? A. No sir. Q. How much of that school population is made up of white children, or children attending white schools, and how much of children attending Negro schools? A. About 63 per cent white and 37 per cent Negro. Q. The ratio is a little bit higher for whites than 60-40, that is 63 per cent? A. Yes sir. Q. Do you know how many that would be out of 37,000? A. Well, for last year it was 8,000 high school white, and— Q. Well, you said for last year; now, are we switching for this year to last year, or are we sticking to this year? I ’ll take either one? A. Well, I just used the 37,000, which is the running enrollment. For official figures I would have 176 Julius L. Gholson—for Defendants—Direct to take the average for last year. We do that on a yearly basis. Q. Well, do you know the enrollment, the total enrollment for last year! A. Well, it would be the total of 8,000 and 15,000, that would be 23,000 for the whites; and 4,000 and 9,000 would be approximately 13,000 for the Negro. Q. That would make roughly 36,000? A. Correct. Q. The 8,000 enrollment for whites is in the high schools ? A. Yes sir. Q. And the 15,000 enrollment for Negroes is—I mean for whites is in the elementary schools? A. Yes sir. Q. The elementary school, as you used the term, includes all 7 grades, from the 1st to the 7th? A. The 1st through the 7th. Q. The 1st through the 7th? A. Yes sir. Q. Actually, do you distinguish between the first 3 grades as primary and the 4th, 5th, 6th and 7th as elementary? A. Only from the standpoint of curriculum. They are in the same building and part of the same school. Q. But when you refer to elementary schools, you’re talk ing about all 7 of the grades? A. The old grammar schools, we used to call them. The Court: What is the derivation of that word “elementary” in that connection? The Witness: I t’s an intermediate number of grades between the primary or beginning and the high schools, from 4 through 7; they are called the “elementary grades”. The Court: I wonder where they got that word “elementary” in that connection. Do you happen to know? I never have known? The Witness: No sir. The Court: Very well. 177 Julius L. Gholson—for Defendants—Direct By Mr. Jones: Q. You say that that distinction is made as a matter of curriculum only; is that what I understood you to say! A. Well, you would not have separate schools for them— Q. I understand! A. —as you do in all other areas, yes sir. Q. But your primary grades and your elementary grades are separate! A. Yes sir. Q. The first 3 being primary? A. That’s correct. Q. And the next 4 being elementary? A. That’s correct. Q. Now, aside from the numerical difference, what other distinction or difference is there between the primary and the elementary? A. Well, you prepare them in the primary for the elementary. I t’s a classification or division as far as your curriculum and your grade divisions and so on are concerned. Q. Something sort of like the idea of going to a kinder garten before you go to school, although, of course, on a different level? A. That’s correct, the first 3 grades are considered in that particular area of organization from the school standpoint. Q. Well, from a curricula point of view then, what is the difference, what do they move from and what do they move to, when they move from the primary to the elemen tary from a curriculum point of view? A. Well, their as signments are much more simply. You don’t have as much home work; you have more repeating; your methods are different because of the tender age of the children in that area. Q. And the division between those two concepts then is actually a landmark in the child’s educational career? A. Yes sir. 178 Julius L. Gholson—for Defendants—Direct Q. Just as much as going from the elementary school to high school? A. Yes sir. Q. And from junior to senior high school? And so on. A. Yes. Q. Is that substantially what we’re talking about? A. Yes sir. Q. When you make the distinction? A. Yes sir. The Court: Have they started French in the pri mary grades yet? The Witness: No sir. By Mr. Jones: Q. But the figures which you are giving me now make no distinction between primary and elementary? A. No sir. Q. But cover all seven grades ? A. Yes sir. Q. Very well. How many school plans are there in the high school system or say Senior High School system for white people and what are they? A. That would be five. Q. And name them, will you? A. Lanier, Miller, McEvoy, Willingham and Dudley Hughes. Q. Now, Lanier is a boys high school, is it not? A. Yes sir. Q. And girls do not attend that school? A. No sir. Q. McEvoy is a girls’ high school? A. Yes sir. Q. Is that correct? A. That’s correct. Q. How about Willingham? A. Boys’ high school. Q. I t’s a boys’high school? A. Yes sir. Q. What is the fourth one? A. Miller. Q. Miller High School, that is a girls’ high school? A. Yes sir. 179 Julius L. Gholson—for Defendants—Direct Q. So that, there are two senior high schools for white boys and two senior high schools for white girls? A. Yes sir. Q. That makes four? A. Yes sir. Q. Now, what are the other high schools then for white children ? A. Dudley Hughes. Q. Dudley Hughes, is that for both boys and girls? A. Yes sir. Q. And that is the school which is located up on Forsyth and Orange streets? A. Yes sir. Q. In the City of Macon? A. Yes sir, that’s old Lanier. Q. And you count that as one school? A. Yes sir. Q. Incidentally, how old is that school plant? A. I t’s in its 50th, this is its 50th year. Q. If I told you I went there, you’d place my age up somewhere along that line, wouldn’t you? In any event, in addition to Dudley Hughes then, which is for both boys and girls, what other high school is there for whites? A. Now, those are the only senior high schools. Q. Five? A. Yes sir. Q. They are the five senior high schools? A. For whites. Q. Now, how many separate junior high schools are there for whites? A. You would have Lanier Jr. High School, Miller Jr. High School, Willingham Jr. High School, and that’s it. Q. Now, that’s 3 junior high schools? A. Yes sir. Q. The Lanier being for boys? A. Yes sir. Q. And Miller being for girls? A. Yes sir. Q. And Willingham being for boys, is that correct? A. Yes sir. Q. Now, doesn’t Dudley High have a junior department? A. No sir; it has a junior department; you have the 8th and 9th grades but they are not separated— 180 Julius L. Gholson—for Defendants—Direct Q. That’s what I ’m trying to get at. These other schools separate the 8th and 9th grades from the 10th, 11th and 12th? A. Yes sir. Q. Bnt at Dudley Hughes you have 8, 9, 10, 11 and 12? A. Yes sir. Q. At Dudley Hughes? A. And you have it at McEvoy. Q. And also at McEvoy? A. Yes sir. Q. So that, if you added those and counted them as a separate school, because they had the junior grade classes, then you would have two more? A. Yes sir. Q. To add to the category? A. Yes sir. Q. But in your tabulation, you treat them as a single school, although they cover both the junior and the senior grades? A. The administration is single for them. Q. Do these separate junior schools have separate princi pals from any senior schools? A. The separate ones do, yes sir. Q. But you only have a single principal for the five grades at Dudley Hughes and similarly at McEvoy? A. That’s correct. Q. Now then, you stated that the school, that the en rollment last year at those several high schools was 8,000, is that correct? A. Approximately 8,000. I ’ve rounded it out. Q. Then, please give me the same information now with reference to the Negro high schools? A. All right, sir, you have the oldest, Ballard-Hudson Senior; then you have Ballard Hudson— Q. Now, is that two schools? A. No, you have Ballard Hudson Jr., which is a separate division, in a separate building. The junior part covers the 8th grade. And we are building a new Ballard-Hudson Jr. High. 181 Julius L. Gholson—for Defendants—Direct Q. Well, before we get to what you’re building, are you counting Ballard-Hudson as one school? A. Ballard-Hud- son is two schools, Ballard Hudson, Sr. and Ballard Hudson, Jr. Q. So, there’s a Ballard Hudson, Sr. and a Ballard- Hudson, Jr. A. Yes sir. Q. Okay, and now the other? A. Appling. Q. Now, Appling has the same five grades but I believe that is in a single organizational school system? A. That’s just like McEvoy and Dudley Hughes. Q. Just the same as McEvoy and Dudley Hughes? A. The same organization. Q. So, that is the three schools for Negroes that you were referring to? A. Yes sir. Q. And of those three, Appling has all of the same grades from 8 to 12 that the combined junior and senior high schools have, but they are under the same organizational control? A. Yes sir. Q. And the enrollment at those schools is 4,000? A. That’s correct. Q. Now, please then let’s—I think we can limit ourselves in this examination to the high schools because we’re deal ing specifically with that—what is under construction or in the planning stage, by way of additions to your high school facilities? A. Well, we have given a contract for the construction of a junior high school at Ballard-Hudson, a 40-room high school, with all of the related facilities. Q. Is that in the general area of the existing Ballard- Hudson School? A. It would be maybe a mile, about a mile or mile and a half from there. We are also in the planning stages for a new junior high school for Peter Gr. Appling. Q. For Appling? A. Yes sir. 182 Julius L. Gholson-—for Defendants—Direct Q. You’re in the planning stages for that? A. Yes sir. Q. Are the funds provided for that? A. Yes sir. Q. And also for the one that you say you have under contract? A. Yes sir. Q. Any more? A. Those are the two for the Negro schools involved. We have— Q. Let’s stop there for just a moment. Then, you do have under construction or in the planning stage, with funds al ready provided, a junior high school for Ballard-Hudson, or an enlargement or an addition-— A. I t’s a complete junior high school and would be for the 8th and 9th grades. Q. And what would happen to the junior high school al ready at Ballard-Hudson? A. It will become part of the senior high school. Q. It will become available for the seniors? A. Yes sir. Q. And did you refer to this as a 40-room? A. The junior high school will be. We had originally planned it for about 32 rooms but developments in that area have taken so rapidly that we’ve got more people there than we did when the bond issue was passed; so, we added rooms to the proposed building. Q. Then, in terms of capacity, you see in the process of adding 40 rooms to Ballard-Hudson, making available to the Senior High School the rooms already used for the Junior High School there, and the new facility for the 8tli and 9th grades constituting the junior high school, is that right? A. That’s correct, Q. And how much room or building capacity are you making available at Appling? A. Whatever the survey indicates is needed at the time that we get ready for the contract to be bid. Q. Can you guess or estimate what that would be? A. Oh, I would say it certainly would be somewhere around 25 to 30 class-rooms. 183 Julius L. Gholson—for Defendants—Direct Q. And if that building is built, then you would have the same situation as at Ballard-Hudson; that is, the present junior grades at Appling would be available for the Senior High School? A. Yes sir. Q. And these new rooms would be available for the new junior high? Is that correct? A. Yes sir. Q. Now, we might transfer to the whites: What are you projecting there? A. Well, at McEvoy, which is in the same arrangement as Appling, we are planning for a new junior high school at McEvoy. I t’s in the planning stages. And they’re terribly overcrowded. Our white schools are just as overcrowded as the Negro schools are. Q. In the high school area? A. Yes sir. McEvoy has doubled its capacity very similar to Ballard-Hudson. Q. Where is McEvoy? A. McEvoy is out on William son Road; it’s in West Macon. Q. And what you’re proposing to do there is to add a junior high school? A. That’s correct. Q. To the existing McEvoy School? A. That’s correct. Q. And that would, in turn, give you the same turn over of students; that is, your present facilities used by the juniors would become available to the seniors? A. Yes sir. Q. And your new facilities for the juniors? A. Yes sir. Q. All right, anything else? A. Well, a new junior high for Willingham. Willingham High School is very much like Ballard-Hudson. They don’t have a separate plant. They just have a wing, which houses their junior high. So, we have in the planning stages arrangements for a new junior high for Willingham. That’s a couple of years ago. Q. And that would in turn follow the same general proce dure that we’re talking about? A. The same general pro cedure, yes sir. 184 Julius L. Gholson—for Defendants—Direct Q. When that’s completed and available, it would make more room for the senior high school? A. That’s correct. Q. In the space presently occupied by the juniors? A. Yes sir. Q. Any further construction? A. Yes sir. Q. Projected in the high schools? A. To take the tre mendous increase in enrollment and overcrowded condi tions from Lanier and Miller, we are planning two high schools on the Upper River Road. They will relieve both the Millers and both the Laniers. Q. Are they in the planning stage or construction stage? A. They’re in the early construction stage, just as Ballard- Hudson Jr. is. Q. What determines the location of the new school projects that you are working with? A. Survey of your school population and your overcrowded conditions in the schools that are there. They have to be approved by the State, before they will go along with the local system in approving any new schools. Q. You mean the State has to itself— A. •—satisfy it self. Q. —from a survey of the student population in the area? A. Yes sir. Q. And do you also have to occasionally take into ac count the availability of land for that purpose? A. Yes sir, yes sir. Q. That presents quite a problem sometimes, does it not? A. It has here in recent months. Q. Mr. Gholson, in the formulation of this plan, have you been constantly in touch with everyone who’s had anything to do with it; that is, have they called on you for assist ance and have you given them assistance and aided them in the working out of this plan of desegregation? A. Yes sir. 185 Julius L. Gholson—for Defendants—Direct Q. You are then familiar with its terms; you’ve studied it and understand what it attempts to accomplish, the plan of desegregation? A. Yes sir. Q. A question was asked of Dr. Culpepper while he was on the stand—I won’t attempt to state it exactly but gen erally—to bring forth an explanation as to why the plan was designed to begin at the upper classes, rather than at the lower classes: Are you in position to supply an answer to that? A. Well, I know the general feeling of the people who were working and interested in it, and my own feeling. Q. That’s what I had in mind? A. Yes sir. Q. Can you state, from the point of view of why the de cision was made to start at the upper grades rather than the lower grades, can you state what influenced that de cision, what factors and considerations influenced it? A. Well, there were many considerations which were given. I recall, that the first one, we said that at that stage the students were more mature and that you could appeal to them and reason with them, and could probably get better cooperation because of their maturity. No. 2: Their parents are not as emotionally concerned with them at the 11th and 12th senior high schools, as they would be if they were first entering school; and you would not have as many problems because of emotionalism and concern of parents. The participation in PTA proves that the parents in the 1st, 2nd and 3rd, in the lower grades, are far more anxious and concerned and emotional about their children than they are when they reach a certain age and can take over for themselves. I believe we also mentioned that at that advanced age a certain amount of screening had been done. Many of the people who ordinarily would be administrative disciplinary problems and so forth have been eliminated by the time they 186 Julius L. Gholson—for Defendants—Direct got to senior high; and yon would have less administrative as well as school problems involved there. Q. That is to say, if I understand you, that a child enter ing the school for the first time has got his entire career before him and you have the good and the bad and the in different? A. That’s right. Q. And you haven’t had the opportunity to screen them to the extent that that opportunity exists when they reach the upper grades? A. Well, they have to go under our school compulsory law until they are 16; so, whether or not they want to stay or whether they are problems, or whether they need to be working in something else, they still have to go, and quite often that creates many problems. Q. Let’s talk about the parents for a moment: Give me the benefit of your thought as to what the effect upon the parents would be, if it should be decided to start this pro gram at the lower grades and the extent to which that would flow over into the children, or just what is your problem there? A. Well, there’s just naturally more concern for a child in the 1st, 2nd and 3rd grades, the lowmr grades; they need their parents’ supervision and protection, and emo tional feeling and so on, more than they would when they get up in senior high school. And in our community we’ve been talking about doing this starting in the upper high school and the community, more or less I think, is sort of geared to doing this thing in this way. Q. Well, I was coming to that in just a moment. At the present time the community is geared to the upper level? A. True. Q. To what extent is that due to the fact that that’s where the Board started and that’s the plan which has been sold to them? A. Yes sir. Q. Is that part of the picture? A. I feel that it is. 187 Julius L. Gholson—for Defendants—Direct Q. Well, even if we liad started—well, let’s state it this way: Suppose we should now in the middle of the stream, so to speak, shift from the end at which all of our planning has been directed and try to pick it up and start planning from the lower end, what problems would you encounter that you haven’t already met and dealt with? A. The ones I just mentioned. You would have far more parental prob lems, I feel certain. Then, you’d have a relative degree of increased problems, you’d have a relative degree of in creased problems because you’re spreading out on so many fronts, that I feel and I would like—well, the Board and I feel, I know it’s been the Board’s thought that during the period of transition— Q. Well, it’s been a matter of discussion, hasn’t it? A. That during the transition period, we were hoping that we could have some temperance and moderation, so that we could have a smooth transition. And if you spread out on too many fronts, then you’ve got so many problems and obstacles there that it’s going to be almost impossible to handle them all from an administrative standpoint. Q. Does the school have the same measure of control over the parents that it has over the students? A. No sir. Q. In the school buildings during school hours? A. No sir, not at all. Q. Does it have any control over the parents? A. No sir. Q. Does it have any control over the students? A. Only while they’re at school. Q. I ’m talking about while they’re at school? A. Yes sir, Q. Does the fact that starting at the lower grades would inject into the problem dealings with parents, as well as the young students, in your opinion, create a greater prob lem than at the more advanced ages, where your dealings 188 Julius L. Gholson—for Defendants—Direct are almost entirely confined to the students? A. I would think a much greater problem. Q. Now, I believe I caught your answer a few moments ago in dealing with this question, are we talking now about the problems at the beginning? To what extent would those problems tend to disappear as time passes, if the plan which we have proposed starts at the beginning and gradu ally approaches the parents and the children at the younger grades, rather than being suddenly thrust upon them? A. Well, I feel that if we have a successful period of transi tion, then the community will be in a position to accept it as we go along. Q. What situation would exist if we should undertake at this time to start at both ends; that is, start with the 12th grade at one end and the 1st grade at the other end? Would that be a possible situation that you could cope with, in your opinion? A. I ’m afraid it would be very chaotic and create a great deal of additional problems. Q. At the present time are you really concerned so much with educating the parents of the primary classes, if they think of this program in terms of something in the future that they’re really not concerned with at the moment; are your problems really so great with that element of your school population now? A. No sir. Q. Would it become substantial and definite if suddenly you should announce or anybody should direct you, the Court should direct you or you should change your plan, to start at the area which would immediately touch those parents? A. I feel that it would be. Q. Well, I ’m not sure that I asked you what it would be but I think I did; you might state to me what you think it would be? A. I think it would be chaotic. 189 Julius L. Gholson—for Defendants—Direct Q. That’s what I understood you to mean; I just wanted to make certain? A. Yes sir. Q. What would be the possibility, in your opinion, of at one “fell swoop” applying the plan to all 12 grades in your system, both at the top and in the bottom and in the middle? Would that be a program that you could visualize as being able to be handled? A. No sir, I don’t feel that the community or the school system is so organized and prepared at this time, where it could accept that and do it in a proper, graceful manner. Q. I want to ask you one or two questions about teachers; Mr. Atkinson has testified to that to some extent: Do you have close and almost constant association with the teachers in the school system? A. Yes sir, we keep close touch on the school personnel. Q. Do you know the teachers in the system? A. Well, I know many of them. We have some 1300. I could not know them all. Q. Do you generally know the teachers in the system? A. I do generally know them. Q. Do you know their attitudes and reactions, to the ex tent that you may have heard them expressed in conversa tion? A. I ’ve heard from many. Q. In your school system how many, in terms of per centage or in general approximation, how many teachers are there who have really reached a point of experience and service and age, where they could retire, if they wanted to ; and yet, who are continuing in the system because of their desire to render some service ? Is that a substantial number or a small number? A. It would be a good number. Q. Are they your experienced teachers in the school system? A. Yes sir. 190 Julius L. Gholson—for Defendants—Direct Q. Do you have any reason to anticipate what would happen to those teachers of that particular category, if suddenly they should be confronted with a sweeping re quirement of desegregation in all of the grades of the school; what would be their reaction to it and what would they do? A. I feel that we would lose many of them. Q. Would that be true also of the younger teachers who are starting in the system and who have not attained that age of experience? A. We probably would lose—well, I couldn’t say; I believe the older teachers would have more difficulty adjusting to a tremendous change than the younger ones would. Q. Now, something also has been said about the processes which are involved in the assignment of teachers to their several schools. Will you please state to the Court as the Superintendent just what processes are, how you go about selecting and designating teachers for the different schools in the County? A. Well, when we have a vacancy at a par ticular school, the principal advises the teacher to send a letter to the office, to the Superintendent, advising the time and the reason for leaving. And when we receive that, we immediately check our files to see what qualified personnel might be available; and when we do that, we select the person that we feel would be best fitted and best certified and best capable of doing that particular job. And, as a rule, we talk with the principal and, where we can, we ask the principal to interview this applicant and advise with us before we make any kind of recommendation to the Teachers and Salaries Committee for the official ap pointment of this teacher by the Board of Education. Q. Then, when you finally complete that, who all is satis fied with the teachers who are teaching in a given school? Who has to be satisfied? A. Well, the principal is certainly 191 Julius L. Gholson—for Defendants—Direct involved and wants to keep the same spirit. The parents have to be satisfied. Sometimes it may be in a community where a certain type of teacher is needed for the particular type of pupils in that community. And then the co-workers of the faculty, of the teachers themselves. Q. Is there such a thing as a pool of teachers? A. No sir. Q. That you can just dip down blind-folded and put some body out and send to a given school, or are there a number of personal factors and relationships involved in that desig nation? A. We try to do it on an individual basis, so that they would fit in properly. In fact, before a school can be accredited, the Superintendent is supposed to get the recom mendation of the principal of a school, saying that that teacher will meet the requirements for that particular school. Q. If that were not true, Mr. Gholson, wouldn’t it be possible just as well to operate this thing on a computer system? A. Yes sir. Q. On a machine pulling out cards ? A. Yes sir. Q. And sending them to different places ? A. Yes sir. Q. But is that the way the Bibb County school system is operated? A. No sir. Q. I t’s on a personal interview and selection basis? A. Yes sir. Q. As far as teachers are concerned? A. We do that with our Negro principals as well as the whites. Q. Do I understand that when you are required to supply a teacher that you go through the same processes iden tically with the white principals and with the Negro princi pals ? A. That’s correct. Mr. Jones: If Your Honor please, I don’t know— just one moment—• 192 Julius L. Gholson—for Defendants—Direct Q. Can you give us the number of teachers in the system, Mr. Gholson? A. Yes sir, let’s see what that would be, about 800 white and 420 Negro. Q. 800 white and 420 Negroes? A. Yes sir. Q. What’s the total number? A. The total of that. Those are classroom teachers now. Now, they’re not your admin istrative personnel. Q. This is teachers only? A. Yes sir. Q. And that is supposed to be the accurate number of white and colored teachers in the system at the present time? A. Yes sir. Q. And that means teaching, classroom work? A. Yes sir. Q. That doesn’t include principals? A. No sir. Q. Or does it? A. No sir. Q. I want to talk to you a few minutes or ask you a question or two about this subject of transportation that Mr. Hollowell covered with Dr.—or started to cover—with Dr. Culpepper. Please state what is initially the basic factor in determining whether or not the Board attempts to provide public transportation free to the students at tending the schools here? What is it that determines that initially? A. Well, your main criteria is the State rule, which says that students living a mile and a half from a school in a rural area are furnished transportation. Q. Well now, let’s stop with that: A mile and a half, do they have to be a mile and a half from the school? A. Yes sir. Q. And they also have to be in a rural area? A. Yes sir. Q. Now, does that preclude the furnishing of transporta tion to anyone who lives in what we will refer to as the urban area of Macon? A. Well, it doesn’t preclude it but that’s the general rule. 193 Julius L. Gholson—for Defendants—Direct Q. Well, I thought you said that was the State rule? A. Well, it is ; you would not receive funds from the State fox- students that did not conform. Then, if - Q. Then, if you provide that transportation, you mean you’re not furnished with the funds by the State to do it? A. Yes sir. Q. Now, that is a State rule to that extent? A. Yes sir. Q. And what is the rule—to what extent does the Bibb County Board undertake to supplement that or to deal with it beyond that? A. Well, there are some instances where they would transport pupils, if they lived in a dangerous area, across railroad tracks and there was only one road to go across, or something like that. Q. You wouldn’t go across the road to get the Mayor’s son because he was the Mayor’s son? A. No sir. Q. But you’d go across the road to get whoever was there because of special circumstances which indicated it, is that correct? A. That’s correct. Q. Now, if we start off then with the fact that, you do have some underlying rules governing the availability of school transportation, what other factors enter into the routing of those school busses? A. Well, children are fur nished transportation to the schools that they attend. Q. That is, a student attending Lanier High School rides in a bus which is headed for Lanier; is that what you mean? A. That’s right. Q. And the same thing of every other school m the system? A. That’s correct. . * Q. So that, the first thing that you have to consider is where the bus is going? A. Yes sir. Q. And that is to the high school? A Yes sir. q Then, how do you work out a labyrinth of routes, and so forth, to cover all the territory that has to be served? Is that a changing proposition from time to time? A. Well, 194 Julius L. Gholson—for Defendants—Direct it changes usually. I t’s modified every summer if there’s some reason for it. If the density of transported pupils changes during the year, then there would be some modi fication of the bus routes during the summer months. Q. Then, is it correct to say that that’s controlled by the density of the school population going to that school! A. Yes sir. Q. In the area which is being served! A. Generally so. Q. How many busses are in operation now in the Bibb County school system! A. There are 58 that transport pupils each day. Q. Now, do any busses deliver students to both Negro and white schools! A. No sir. Q. How many of those busses deliver students to the Negro schools! A. 15 of them. Q. And how many to the white schools! A. 15 from 58. Q. Would be 43! A. 43. Q. Are those routes chosen and selected to actually cover the territory which has to be covered to transport the stu dents entitled to transportation to these various areas! A. Yes sir, they follow the main routes. They do not go off on little side streets. Q. I started to ask you, do you attempt to pick up chil dren at their front door! A. No sir. Q. Or at a convenient place! A. At a convenient place. They can’t deviate and get to school if they leave the main route. Q. Then, in considering the question of the availability of transportation to get to a public school, you would start off with the fact that there may not be a school bus that could possibly serve that student, is that correct! A. That could be. 195 Julius L. Gholson—for Defendants—Direct Q. And it may be that you might have to re-route the busses in order to make that transportation available to them? A. That could be. Q. And you may be able to do that in some cases? A. Yes sir. Q. Or he may be able to provide private transportation, that is, his own transportation? A. That’s correct. Q. And in that event, would that be considered adequate? A. Yes sir, it would. Q. To meet the problem? A. Yes, it would. Q. If I understand correctly, and we’re presenting these detail plans for the Court for the Court’s approval, on the subject of eligibility of a student to go to a particular school, that’s a cold, hard fact to be determined from that school’s grade records, is that correct? A. That’s right, that’s it. Q. And there’s no if and and about it? A. The transcript speaks for itself. Q. He either is or he isn’t? A. Yes sir. Q. On the question of the capacity of the school to which an application is made, by and large, is it or not true that there would more than 50 per cent, likelihood that the school to which a Negro child sought to be transferred in the 12th grade would have more adequate capacity to receive that child than the school from which he was being transferred; is that a fair assumption? A. Probably so, yes sir. I couldn’t say that it would be in the exact ratio because many of our white schools are overcrowded also. Q. I know they are, some of them are overcrowded; but as a factor to be determined, to what extent do you think it likely that lack of capacity would in the new school pre vent a transfer; would that be substantial or not substan tial, and possibly that depends on how many all of a sudden will want to transfer? A. Yes sir. 196 Julius L. Gholson—for Defendants—Direct Q. But suppose a few wanted to transfer, would you think that it would be possible to accommodate them in the new school! A. I would certainly think they would be given every consideration of the school that they’re request ing as compared with the school that they were coming from. Q. And then, on the question of the student’s ability to get to that school, that would involve a number of considera tions that you would try to work out to the student’s best interest! A. Yes sir. Q. And in the application of this plan would it be your intention to exercise the utmost good faith to permit any student desiring to transfer within the plan to accomplish that transfer, if it was at all possible to do it! A. "We’ll certainly try to administer the plan in good faith, yes sir. Mr. Jones: I think that’s all, Your Honor. The Court: Now, it’s just about our usual knock ing off time. How many more witnesses do you have, Mr. Jones, if any! Mr. Jones: If any, there’s a question. I t’s pos sible, I had thought I might get Dr. Weaver here, partly because counsel has indicated a desire to in terrogate him and he would then have that oppor tunity in that event. I had thought possibly I might have Mr. Simmons here because he’s chairman of the Finance Committee. On the other hand, I may not have either of them here unless counsel wishes one of them, in which event I ’ll arrange for it. This is the last witness that we have today and it may be the last witness that we would expect to put up in this proceeding. The Court: Do you plan any rebuttal, Mr. Hol lowed! I ’m just wondering now what is the pleasure! Shall we try to finish it this afternoon or would you prefer or not, or do you have any preference! 197 Colloquy Mr. Hollowell: May it please the Court, if this were to be the last witness and we were going on, I would then not consider putting on any rebuttal and would not consider that I had in any way circum scribed my case by so doing. And, if I had my “rathers”, I would prefer to finish it this evening, if it were possible. I do not know what the plan of the Court is but that would certainly be my think ing and my preference or my wishes. The Court: Well, how long would you expect probably to cross-examine this witness? I know you couldn’t tell us exactly. Mr. Hollowell: Well, he’s been up there for a good long time but I don’t look on the matters as being overwhelming. Perhaps not more than 30 minutes. The Court: All right, I don’t want to rush either side. I think we’ll just suspend where we are and come back tomorrow morning at the usual time, 9 :30. Hearing Recessed: 5:05 P. M., April 13, 1964 Hearing Resumed: 9 :30 A. M., April 14, 1964 The Court: Are you gentlemen ready to proceed? Mr. Jones: If Your Honor please, Dr. Weaver, who is the President of the Board of Education is in court at the moment. As Your Honor knows and I think everyone else, he does have responsibilities as a surgeon and a doctor, and I wanted to ask him a few questions; and I wondered if the Court and coun sel would be agreeable to my putting him on the stand at this time to do that. The Court: Any objection to that, Mr. Hollowell? Mr. Hollowell: We have no objection. The Court: Very well. 198 Dr. II. G. Weaver—for Defendants—Direct Dk. H. G. W eaves witness called in behalf of Defendants, first duly sworn, testified on Direct Examination by Mr. Jones: Q. Give your full name to the Court? A. My name is Hudnall Gentry Weaver. Q. We’re not concerned in this case, Doctor, with your professional career? A. Yes sir. Q. And I won’t ask you any further questions regarding that, but I am interested to know how long you have been a resident of the City of Macon? A. I was born here. Q. And would you mind stating about how many years ago that was? A. Well, it’s a little over 66. Q. You’re one of the senior citizens then, past the middle age group? A. No sir. Q. Dr. Weaver, how long have you been connected with the Bibb County Board of Education? A. I ’ve been on there since December, 1939. Q. Mathematically, that adds up to some— A. Little over 24 years, yes sir. Q. Are you the President of the Board at this time? A. Yes sir. Q. When did you become President? A. About 4 or 5 years ago; I don’t know the exact date. Q. Perhaps I could refresh your recollection. Did you succeed— A. Mr. Crump. Q. —Mr. Crump as President? A. Yes sir. Q. Anri you became President—when he retired, you became President? In his place? A. That’s right. Q. Was that about the late fall of ’59, I mean ’60 and early part of ’61? A. Along in there; I don’t know the exact date. 199 Dr. II. G. Weaver—for Defendants—Direct Q. Sometime about that time? A. Yes. Q. Growing out of your long experience on the Board in connection with public education in the County, and your more recent tenure as President of the Board, what is your prime objective in the administration of the school affairs of this County; that is, what is it that primarily motivates you and dedicates you to serve on this Board? What are you trying to accomplish? A. Well, of course, what we’re trying to accomplish is to give the youth of this County the best education that we can give them. That’s my main desire. Q. Does that apply to all of the eligible school children in the County? A. Yes sir. Q. Or to any one class? A. No sir. Q. As distinguished from another? A. No sir. Q. During the four years that you have been President, has the Board considered the problems which are presented in connection with the plans or programs of desegregated or desegregating the school system? A. Yes sir, they have. Q. I would ask you this question, Doctor: At the present time and during the time that you have been President of the Board, has there been any disposition on the part of the Board to fight some form of desegregation? A. No sir, it has not. Q. What has been the direction of the thinking of the Board on that question as to how and when it might be brought about? A. Well, I tell you. We considered it and made quite a study of it. Of course, we all realize that de segregation was here and there was nothing on our part to try to enter into any court controversy on that subject. All avenues had been exhausted there and, of course, what we were trying to do or work for was some kind of plan that would be acceptable and workable, to where it would 200 Dr. II. G. Weaver—for Defendants—Direct interfere with the education of the children. That’s been our desire. Q. Has the Bibb County Board of Education ever been involved, prior to the filing of this particular suit, in any litigation, either resisting or involving desegregation? A. No sir, it has not. Q. Do you consider that the Board of Education is now a litigant on that question or possibly a supplicant to the Court to work something out? A. Well, we’re a supplicant to the Court. That’s the way I feel about it. Q. What is the intention of the Board with reference to complying with any order which may be issued by this Court in connection with any plan that’s approved? A. Well, the Board will, of course, carry out the order of the Court. That’s my idea about it. Q. Will they do that in good faith? A. Yes sir. Q. To what extent will they devote efforts to accomplish ing proper transition for that program? A. Well, of course, it depends entirely on the order of the Court; and, of course, we’ll study that and we’ll try—we’ll comply with what the Court orders 100 per cent. Q. Now, one final question: One of the matters which has been injected into this case in one way or another is the question of whether in any gradual plan the program should start at the top in the 12th grade or at the bottom in the primary grades: is there any one condition or situa tion which influences you primarily in your decision as a member of the Board to propose to start at the top prob ably superior to any other? A. Yes sir, I do for this particular reason, that the impact will be less in high schools than it will in the elementary schools. I feel this way about it, that mothers and all starting children to school at the early age, we have probably more trouble with them than 201 Dr. H. G. Weaver-—for Defendants—Cross we do in the high schools. In fact, we do. And I believe that the best solution of this problem would be to start in the high schools. Mr. Jones: The witness is with you, Mr. Hollowell. Cross Examination by Mr. Ilollowell: Q. Dr. Weaver, are you a medical doctor, sir? A. Yes sir. Q. You indicated that your prime purpose—and I quote •—'“is to give the youth of this County the best education that we can give them”—is that correct? A. Yes sir. Q. Would it seem reasonable to you that, inasmuch as we have a mixed society in this Country, that it would be of importance that people might be able to learn together and to associate together, in order that they might know them better and be able to work with them better? A. Well, I think the peace and tranquility in this program will be better than trying to have a mass integration, because you’re going to have trouble if you do it. Now, of course, our prime idea in this thing is to have peace and tranquility and try to give our children, all of the children of this County the best possible education. Q. But you haven’t answered my question, Doctor? A. I answered it the best I could. I don’t know what you mean. Q. Well, what I asked you was, wouldn’t it seem reason able to you as a trained man, that where people are going to be living and working in a mixed society, that it would be well to have them trained together and learn together and to know each other better in making an effort toward this ultimate adult life which they will live in a mixed society? A. Of course, your idea may be good but I don’t agree with it, for this particular reason: I t’s going to cause 202 Dr. H. G. Weaver—for Defendants—Cross a lot of turmoil and upset the whole school system. That’s my opinion. Q. This is your opinion; now, with whom have you talked that told you that? A. Well, listen! I ’ve talked to everybody, I ’ve been talking about this 10 years. I couldn’t even name them. Q. Could you name me somebody? A. Well, who have I talked to? We talked on the Board about it. Q. All right, now have you talked with any other super intendents or Chairmen of boards who have had their schools desegregated? A. No, I haven’t talked to any of them. I haven’t seen them. Q. Have you talked to any principals who have had their schools desegregated? A. No, I haven’t talked to any of them. In fact, I don’t know any of them. Q. I see. So then, all you can say is that this is your idea? A. That’s my opinion. Q. This is your thinking? A. That’s right. Q. Based only upon such experience as you have had but no experience with those who have had the experience of a desegregation process in their schools, is that correct? A. No, that’s right. The only thing I know is what I ’ve read in the press. I haven’t talked to any of them. Q. Now, let me ask you this: Now, you say you’ve been working on this for 10 years; have you at any time or ganized any group to discuss these problems in the com munity? A. No, I haven’t organized any. Q. Have you organized any groups or had any panels or discussion groups with the principals of the schools? A. No, I haven’t had any with them. Q. With the teachers of the schools? A. No, I haven’t had any with them. 203 Dr. H. G. Weaver—for Defendants—Cross Q. With the students of the schools? A. No, I haven’t had any of that. Q. Do you know that any have ever been done by any of the Board members or by the Superintendent of the schools? A. I don’t know. I don’t know what they’ve done. Q. Well, you have no knowledge of any such? A. I don’t have any knowledge, that’s correct. Q. Has it become a matter of discussion, either pro nounced or under the auspices I think would be better, of the Board or the Superintendent in any of the Parent-Teacher associations? A. Not that I know of. Q. So then, this is just some subjective evaluation that you make, based upon what you have read in the papers? A. That’s right. Q. There are no further questions that I have for the Doctor. The Court: Very well. Mr. Jones: That’s all. Dr. WTeaver, we’ll be glad to have you remain with us if you wish or you may be excused. Mr. Gholson was on the stand and I ’ll ask him to resume the stand. If Your Honor please, I had closed my direct ex amination yesterday but, as frequently happens, overnight I have 2 or 3 questions I ’d like to ask him, if I may take a moment more. The Court: All right, sir. 204 Julius L. GJiolson■—for Defendants—Resumed—Direct Me. J u liu s L. G holsox previously sworn and previously testifying on adverse and direct examinations, now resumed stand for further Direct Examination by Mr. Jones: Q.. Mr. Gholson, in the complaint, which is filed in this case, the charge is made that separate financial budgets are prepared for the separate white and colored schools; is that a fact? A. No sir. Q. How are those budgets prepared, not in detailed items, but generally insofar as items of expense or the school sys tem; how are they handled? A. My staff and I work very closely with the Chairman of the Finance Committee and the Finance Committee; and we determine what the needs of the system will be for the next year, and then we com pile our budget based on the total needs of the system; and it is in no way broken down into the needs of the white or the Negro schools or groups. Q. Are you familiar with the statement in the plan which was filed in this case, that while the local Board has operated separate facilities for white and Negro students, that they have striven to make those facilities equal: Could you comment on that and advise the Court to what extent that effort has been made? A. As far as the physical needs of the entire system is concerned, we do the -same for all schools, regardless of whether they have white or Negro students. Once every six years, each of our schools gets a painting job inside and out from the maintenance department and complete renovation. And since 1949, I believe, during the period of three bond projects, we have built 40—we have built 21 new -schools or new additions 205 Julius L. Gholson—for Defendants—Resumed—Direct for white students. During the same time we have built 16 new schools or additions for Negro students. The average age of your buildings for Negroes and whites really is more favorable toward the Negro stu dents. In our white high schools, the average age for your high schools is 21 years. For the Negro high schools, the average age is 10 years. Most of them are comparatively modern. For our elementary schools, the average would be 31 years. For our Negro elementary schools, it would be 18 years. Our oldest schools are our white schools, such as Dudley Hughes 50 years old, Whittle 75 years old, Alex ander III, where my children attend, 57 years old, and right on down the line. Q. Generally speaking, is it reasonable to assume that the more recently constructed school will be constructed along more modern and effective and efficient lines than those constructed 50 years ago? A. That is correct. Q. Yesterday you, in answer to a question, stated that the School Board operated a total of 58 busses, I believe? A. Yes sir. Q. And I believe you stated that 43 of those served white schools, that is schools for white children? A. Yes sir. Q. And 15 schools for Negro children? A. Yes sir. Q. That is not in the same proportion as the student enrollment in those separate schools: Is there an explana tion why there are more busses for white children than there are for colored children? A. Yes sir, we have more white children who live out in the suburban and rural areas and require or meet the conditions of transportation and require being transported. I mentioned the total of 8500 students that are transported. 6700 of them are white and 1700 of them are Negroes, and it’s dependent upon their 206 Julius L. Gholson—for Defendants—Resumed—Cross residence, the density of population in the residence and the distance from the schools. Most of our Negro students, those who come in from rural areas and those who’ve re mained in the City, live in what we call the urban center of our community, while the whites, many of them have moved out into these new sub-developments in the suburban and outlying areas. Q. Generally speaking, is bus transportation—well, I believe I understood you to say that the State does not provide funds for bus transportation within the City limits? A. I did not say that as such. I said that the rule that we follow, which was laid down by the State, says that you have to live a mile and a half and it was primarily for rural students. Q. Mile and a half? A. Mile and a half from the school that they attend. Q. Primarily for rural students? A. Rural students. Q. That was your correct statement, as I understand it? A. Yes sir. Q. Then finally, I ’ll ask you this question: Does the number of busses provided for separate schools indicate in any way the denial of bus service to any one who under your rules is entitled to it? A. No sir. Mr. Jones: That’s all, if Your Honor please. Cross Examination by Mr. Hollowell: Q. Suppose, Mr. Gholson that we sort of back into this. Talking about this transportation situation, do I understand that no one who lives within the corporate City limits is entitled to bus service, is that correct? A. No, there are some exceptions. 207 Julius L. Gholson—for Defendants—Resumed—Cross Q. What are the exceptions? A. Well, you see, Macon has grown rapidly over a period of years. There were some arrangements that were made for safety reasons and for other reasons, the fact that the school might not or the school site might not have been available where we trans ported some pupils. Then too, Macon city limits have been extended; some 2 or 3 years ago they moved the City limit lines out. Now, until that time, with a few exceptions that had justification, the City limits were used as the basis; but the Board of Education determined at that time that it would not make changes in our transportation because of the extension of the City limits. So, when the City limits were extended, we did not deny those people who were a mile and a half away from the school and who had legitimate reasons for riding the busses, we did not deny them bus transportation to the schools solely for that reason because of the extension of the City limits. So, we do have some people in the new City limits that do ride the bus and meet the State criteria for transporta tion. Q. Well, they wouldn’t meet the State criteria if they were not in a rural area, would they? A. Well, that was considered a rural area at that time. The reason for that ruling of the City limits was the fact that the State has stated that it is not their intention to be competitive with private transportation in metropolitan areas. That’s the reason for that rural stipulation. Q. Well, would five miles to go to school be considered by you as a reasonable distance for this transportation to be furnished to the students? A. It would depend on how it might affect the whole school program and the budget. If they lived within the City limits, it depends on the ar rangements. We would consider a case of that type. 208 Julius L. Gholson—for Defendants—Resumed—Cross Q. Well, don’t yon have many cases of that type as re lates to the students who live in Pleasant Hill and go to Appling? A. I don’t believe it would be 5 miles. I have a child that goes 3 miles to school that doesn’t have trans portation. Q. We’re not talking about your child? A. Well, we’re talking about— Q. We’re talking about 5 miles for students who live in Pleasant Hill and who go to Appling? A. Yes. Q. Excuse me—it has been suggested by Mr. Culpepper that it was probably even more than 5 miles? A. Under our rules a child that lives in Pleasant Hill would not be entitled to transportation to Appling. Q. Or any other place in town? A. No, unless it was away out, unless the school was away out in a rural area. Q. Well, wouldn’t you say Appling is away out? A. No, it’s within the City limits of Macon. I t’s not away out. Q. Well, I suppose any place, if one lived say out on Vineville Road north or northwest and went to some school down in South Macon, he would have to go 5 miles, wouldn’t he, and still be within the City limits? A. He could. Q. At the same time what do you judge the distance from, say Second Avenue to Appling to be? A. Oh, I would think it would be about 3 miles. Q. About how far? A. About 3 miles. Q. About 3 miles? A. Yes. Q. And if Hr. Culpepper would say 5 or 6, we could settle maybe on 4 or 4% as being not bad? A. Well, that’s a matter of opinion and we’re neither expert witnesses for judging it. That’s a matter of opinion. Q. Now, you made mention of the fact that finances were displayed or disposed of equally and then you mentioned the fact also, I believe, that the schools, Ballard-Hudson 209 Julius L. Gholson—for Defendants—Resumed—Cross and Appling, which have been built, were actually more modern than the schools, high schools to which most of the white students attend; I believe that was your statement, is that correct? A. I said that most of the new schools were modern and had modern facilities. Q. And that 16 out of 21 schools—no, I take that back— that there were 21 schools white which have been built since— A. ’49. Q. —and about 16 Negro schools, is that right? A. Schools or additions. Q. Or additions? A. That’s right. Q. You don’t know how many were additions and how many were schools? A. No, I don’t have that. Q. Well, actually prior to ’49, you didn’t even have but one high school for Negroes which was operated by the City and County, isn’t that true? A. That’s true. Q. And that was old Hudson High? A. Correct. Q. And you only had some 8 or 9 elementary schools, Negro? A. (No answer) . . . Q. And at Hudson High Negroes from all over the County, wherever they lived, went to that one school; isn’t that right? A. Well, I ’m not familiar with what it was at that time. Q. Well, I mean you don’t know that there was any other high school operated by the City or County, other than that one, do you? A. I recall Hudson High but I do not have knowledge of what the Negroes’ facilities were at that time. Q. I see; you just don’t know of any other? A. I remem ber Hudson High School. Q. And you’ve lived here how long? A. All of my life. Q. And you never did hear of any Negroes at that time going to any white school? A. No, I believe they had a Ballard High School along with Hudson. 210 Julius L. Gholson—for Defendants—Resumed—Cross Q. Ballard was an AME church school, wras it not? A. It was operated by the Bibb system though at the time. Q. I beg your pardon? A. It was operated by the Bibb system. Q. When did it begin to be operated by the Bibb system? A. I do not know but I know that the Board of Education did assume administrative responsibility for it. Q. At some time? A. Yes. Q. You don’t know when that was, do you? A. No. Q. Now, you speak about the same amount of monies be ing appropriated one school to another, have you ever had the occasion to visit Ballard and Appling and to review the science departments and then make a comparison with that af Lanier and Miller? A. Yes, I have. Q. Would you say that equipment-wise they were com parable? A. I would say Ballard is comparable with Lanier and Miller equipment-wise and Appling would be better than Ballard, Lanier or Miller, equipment-wise. Q. From the standpoint of supplies and equipment that is used in the science department, this would be your statement ? A. That is my statement, Q. Do you have any figures which would relate to the amount of money which was actually expended for those schools in the science departments last year? A. We could get that for you. We know that the money is re lated by requisition from the principal, according to need. Q. Well, you’re suggesting then or stating as a matter of fact that if the principal doesn’t requisition, then it wouldn’t be there? A. No, I said that’s the basis for our ordinary supplying of instructional supplies. If we visit and find that there is a deficiency, we would recommend that we put something in there. 211 Julius L. Gholson—for Defendants—Resumed—Cross Q. When is the last time that you have visited either of those schools and made any recommendation? A. At the beginning of this school year. Q. You actually visited them yourself? A. Yes. Q. And you have those figures and that information? A. We have all the information pertaining to their equip ment and their needs. Q. Would you be willing to make it available prior to the time that this case has run its course? A. If you’ll stipulate what you want, we’ll get Mr. Newberry, our as sistant, to do that. Q. All right, sir. Now, going again to the matter of dis tances and looking at the Plaintiffs in these schools or in this case rather, are you aware of the fact that Billy Joe Lewis, who is one of the Plaintiffs and who goes to Ballard High, has to go some eight blocks further, passing Lanier, in order to get to Ballard High? A. No, I ’m not familiar with that. Q. Have you had the occasion to look at the records of the Plaintiffs at any time? A. I think, I believe my staff has considered some of the residences of the Plaintiffs in regard to schools. Some of them do pass white schools. Q. Do you have in court with you a resume of the in formation relating to the Plaintiffs, where they live and the schools to which they attend? A. No, I do not have that. Q. You do not have that? A. No. Q. Are you aware of the fact that Henry Holston or not Henry but Carol Holston, who is one of the Plaintiffs here, has to pass A. L. Miller High School; that A. L. Miller High School is about 10 blocks closer than Ballard High School, which she attends? . . . . Sir? A. I ’m not aware of that, no. 212 Julius L. Gholson—for Defendants—Resumed—Cross Q. Well, in the process of making yonr evaluations to make any determinations concerning these Plaintiffs, did you consider these facts at all? A. I told you that it’s possible that many of them do pass white schools. We have some white students that pass schools going to the schools that they attend, because they’ve been assigned there for administrative control and because of the capacities of the schools. Q. In other words, you don’t deny the fact that in most of the cases of these Plaintiffs, they live closer to the white elementary or high school than they do to the Negro school that they now attend? A. I neither confirm nor deny it. I do not have the information. Q. You have the information at your disposal, do you not? A. I read a very interesting article in the Macon News that explained that, that gave the facts about it. Q. Now, would you answer my question? I say you have the facts at your disposal? A. Well, I told you that some of my staff members did consider, and I told you that it was a fact that some of these students did pass schools going to the ones they attended. I have stated that. Q. You still have not answered my question, though, Mr. Gholson. My question is, I say you have these facts at your disposal? A. Well, they’re not at my disposal, no. Q. I mean in your office? A. Well, I don’t know if they’re still there or not. I can get the issue of the Macon News though and give it to you. Q. Well, I ’m not asking about the Macon News; I ’m ask ing about what you have; you’re the Superintendent, sir? A. Well, my staff did a study of it. Whether or not the facts are still there, I do not know. Q. Would you make that information available to us if it is still in your office? A. If Mr. Jones has it, we will be glad for you to have it. 213 Julius L. Gholson—for Defendants—Resumed—Cross Q. Did you at any time ever give it to Mr. Jones? A. No. Q. Did you ever direct your staff to destroy the informa tion? A. No. Mr. Jones: If Your Honor please, is it possible that a stipulation, which we are very happy to make, would take care of this situation and cover what counsel wants? I ’ll be glad to tender a stipulation if he thinks it might. Mr. Hollowell: All right, it might save some time. If it would save time, Your Honor, I would be happy to consider it with Mr. Jones. The Court: Very well; I ’m in favor of stipulations. Mr. Hollowell: I have the facts, Mr. Jones, and perhaps you have, and we could get together and say before we leave here? Mr. Jones: No, I was not thinking of that. I was thinking of a stipulation which I am offering to make now. Mr. Hollowell: Oh, all right. Mr. Jones: And that would be to this effect: We have, of course, admitted in our pleadings that up until the present time in the public school system of Bibb County, we are operating a separate system of schools for white and colored children. Our pleadings also disclose that, while residential areas and proximity is a factor in the assignment of children to schools, and while there are no zones, still, there are recognized geographical areas for white children and recognized geographical areas for colored children, which are different. They do not coincide with each other. I will stipulate that there are some cases, prob ably many cases, where at the present time Negro 214 Julius L. Gholson—for Defendants—Resumed—Cross children attending a school for Negro children lives in much closer proximity to a white school than he does to the Negro school which he’s attending; and that in probably many cases, certainly in some cases, they actually pass by a white school to get to the Negro school. Now, if it’s necessary and counsel thinks it’s neces sary to give that information and apply it with re spect to each of these numerous Plaintiffs which are in this case, that would require some time, require some digging and some comparisons. Of course, we’ll be glad to do that if it is requested. But I thought possibly my stipulation might serve this purpose. And I do make that offer as a stipulation. The Court: Very well. Mr. Hollowell: Before speaking as to whether we would accept the stipulation, Your Honor, the last point is really the point in question. If that were expanded so as to say, in substance, that there was an admission to the fact that even some of these Plaintiffs might well be in that same category, to the extent that the Court might consider it, then I would be favorable to it. Mr. Jones: I certainly will add that, that some of these very Plaintiffs in this case are very likely in that category. Mr. Hollowell: And the reason we say that is, Your Honor, we take the position that the Plaintiffs are entitled to relief and, if there was nothing in evidence relating to these facts as respects the Plain tiffs, then it might be consideration which the Court might address itself to in saying “Wed, we have nothing in the record relative to these Plaintiffs as such.” 215 Julius L. Gholson—for Defendants—Resumed—Cross Now, if this is sufficiently clear for the Court to understand that the Plaintiffs might come within that category, so as to make it unnecessary for me to put someone on, in order to testify along that line, as to each of the Plaintiffs, then I would say we would accept the stipulation. The Court: Well, it’s very dear to me: what has been offered as a stipulation is that some of these very Plaintiffs might well come within that category. That is the language of the stipulation, if that is suffi cient for you? Mr. Hollowell: Well, when we say “might well come within”. The Court: He just adopted your language there. Mr. Hollowell: I think, Your Honor, that we would make that stipulation but I would not want to be barred from having it extended by my showing, say to Mr. Jones, the compilation of facts which I have, which might make it a bit more specific; and maybe at the break Mr. Jones and I can do that, because I don’t want the record to fail to show that this is the fact, rather than “might well have been”, “might well be the fact”. The Court: I see you point. Well, suppose we say then that the stipulation is accepted as far as it goes ? Mr. Hollowell: Yes sir. The Court: And you have the right to supple ment it by proof that some of these Plaintiffs actually do come within that category, if you so desire. Mr. Hollowell: All right, sir. But I won’t seek to get that in insofar as this witness is concerned but we’ll move on. The Court: Very well. 216 Julius L. Gholson—for Defendants-—Resumed—Cross By Mr. Hollow ell: Q. Now, Mr. Gholson, in your testimony on yesterday you indicated that you felt it was better to start in the 12th grade because there was more maturity there and because the parents were not so emotional, and said there had been some screening, and because they should spread on too many fronts: The primary purpose, as I understand it, of the education system is to give the students the best education possible, is that not true? A. That’s cor rect. Q. Students are more impressionable at an early age, are they not? A. Probably so. Q. Then, wouldn’t it stand to reason to you that, where students have not had the opportunity to develop their prejudices and where they are more used to being con trolled and are subject to control, that they might be more readily acceptable of something which is perhaps a little anomaly to the norm than older students? A. That’s one of the point of views. Q. Isn’t it also true that your parent teachers’ associa tion is generally more active among elementary than among high school grades? A. Much more active in the lower grades. Q. If this pertained all the way around, then there would be more likelihood of the possibility of there being an intelligent program of instruction and discussion among parents on that level, than there would be among those on the high school level; isn’t that true, because they meet more; they have more persons there? They don’t meet any more but they have more people. Isn’t that true? A. You might say so but I feel that the concern of the parent for the child at that age and the impact and adjustment and shock that would be experienced would enter into that. 217 Julius L. Gholson—for Defendants—Resumed—Cross Q. That very concern is the thing that might cause them to act with rationale and with intelligence and with toler ance and with understanding and with determination to see that things do go well, mightn’t it! A. It might do that and it might do just the opposite. Q. Well, I mean you don’t impute to the Citizens of Macon an inherent attitude of intolerance, do you ? A. No, but I feel that well have less parental problem and trouble, beginning at the upper level than I do at the lower level. That’s my opinion. Q. Shouldn’t your basic concern be as to the students? A. The students would certainly be involved as far as his parent’s anxiety and his parent’s conduct and his parent’s activities are concerned. Q. You didn’t answer my question, sir. I say, shouldn’t your basic concern be registered in favor of that which directly affects the student in school? A. It is, it is; that’s why I feel that the upper part, that the upper grades would be the best. Q. Now, I ’ll ask you the same question that I asked Dr. Weaver. I believe you indicated that there has been some discussion in committees and in the Board over the period of a number of years, is that correct? A. I’m not aware of the Board’s discussions over a 10 year period. Q. Well, you’ve heard the— A. I know that they have had some discussions since I ’ve been there, during the time. Q. And you’ve heard the testimony of Attorney Miller, saying that there was some committee away back, beginning in 1954. Now, do you know of any occasion when this Board has had any conference with the principals or the teachers relating to the process of desegregation? . . . Sir? A. I don’t know about the Board. I have mentioned that at principals’ meetings, the possibility of it, for the last several years. 218 Julius L. Gholson—for Defendants—Resumed—Cross Q. You have mentioned it? A. The possibility of it. Q. The possibility? A. Yes. Q. Would you want to characterize what your mention ing has run to? You mean you’ve only admitted in passing that there is a possibility that one day you may have de segregated schools? A. That’s right and that we had best be looking forward to what we needed to do to make the proper preparation, so that we can have a peaceful and calm and graceful transition when that time comes. Q. All right, now how many times would you suggest that you have said that in a principals’ meeting? A. Oh perhaps in the last couple of years, it would date back about two years. Q. Well, I mean how many meetings would you suggest that you have said that in, in the last two years? A. Sev eral. I would not be able to specify a definite number. I t ’s been mentioned on several occasions. Q. You mean 2 or 3? A. 2 or 3 or more. Q. It wouldn’t be 5 or 6, would it? A. I said I did not know a definite number. Q. Well, I say it wouldn’t be as much as 5 or 6? A. I couldn’t tell you; I said I didn’t know. Q. How often does the principals committee meet? A. Usually meets once a month. Q. Once a month and you have 12 school months, don’t you, so it couldn’t be more than 9? A. Usually- have 9 school months. Q. I ’m sorry, 9 school months, yes. Do you recollect what the occasion was which provoked you to mention it at all? A. No, it was just in an administrative capacity-, where we were talking about our problems and what we needed to do. 219 Julius L. Gholson—for Defendants—Resumed—Cross Q. Now, you don’t have all of the principals meet to gether at the same time though, do you? A. We have separate meetings of the principals. Q. You have separate meetings of the principals? A. Yes. Q. You have 9 with each group of principals, 9 meetings? A. Usually. Q. Now, at which group or which meetings were these that you made some reference to the matter of desegrega tion process, at the Negro meetings or at the white meet ings ? A. I have mentioned them at both. Q. Over a period of time? A. More recently, the last two years. Q. More recently, the last two years, all right. You feel that you have a competent staff of principals? A. I do. Q. And that you have a competent staff of teachers? A. Ido. Q. You feel that the people in Macon are rational people, do you not? A. I feel that they are fine citizens. Q. Do you feel that they are rational people? A. I can’t testify to their— Q. Generally? A. —I can’t testify to their rationale; it depends on what the circumstances are to test it. Q. In general? A. Sure, in general, yes. The people of Macon will compare favorably with those anywhere. Q. Do you think they are generally tolerant people? A. It depends on what the situation is. Q. Well, I say generally, talking about the general cir cumstances? A. I would say that they’re the same type of people that you’d find all over the United States, that they’re good American citizens, if that’s what you mean? Q. No, what I mean is, do you feel that the people of Macon are generally tolerant people? A. I cannot speak for the people of Macon. 220 Julius L. Gholson—for Defendants—Resumed—Cross Q. Well, you’ve been speaking for them? A. I hope, I hope that they would be and I feel that would try to be. Q. You would feel, would you not, that the average person, adult and young person, in the City of Macon reads the paper, would you not? A. Many of them do. Q. Would you not also feel that they would be generally aware of the fact that it is only in those places where people acted irrationally that there has been any major difficulty whatsoever at a time of desegregating of high schools and elementary schools? Wouldn’t you think that they would be aware of that? A. I couldn’t answer that ques tion. Q. Are you aware of that? A. Yes. Q. You are aware of it? A. What was your question again? Mr. Hollowell: Would you read it please? The Reporter: Would you not also feel that they would be generally aware of the fact that it is only in those places where people acted irrationally that there has been any major difficulty whatsoever at a time of desegregating of high schools and elementary schools, wouldn’t you think that they would be aware of that? Answer: I couldn’t answer that question. Question: Are you aware of that ?” By Mr. Hollowell: Q. The last question was, are you aware of that? A. No, that’s not correct. You said “no trouble whatsoever even in communities”— Q. I said “no major trouble whatsoever”? A. It de pends on what major trouble is. Some communities have tried their best to have a good transition and they still have had some problems. 221 Julius L. Gholson—for Defendants—Resumed—Cross Q. Well, I mean you have problems, even without de segregation, don’t you? A. Well, I mean this kind of problem. Q. You know that they desegregated the schools in Brunswick voluntarily, don’t you, the high schools? A. Yes. Q. You know that the Atlanta schools have been desegre gated to some extent? A. I’ve kept up with it. Q. Savannah has been desegregated to some extent al ready? A. Yes. Q. You don’t know of any trouble they’ve had, do you? A. They’ve had some problems. Q. Well—- A. They’ve had no major trouble. Q. You’d have problems in any transition, wouldn’t you, even if you were just transferring students, without the matter of color coming in? You are subject to have some administrative problems, aren’t you? A. Yes. Q. Change brings this about, to some extent? A. Yes. Q. You’re not a psychologist? A. No. Q. And I believe you have already testified that you have only talked with a few principals and Superintendents at some convention concerning the problems which are in herent in the desegregation process? A. Various profes sional meetings. Q. At various professional meetings? A. Yes. Q. But you have made no studies that you have compiled in your own office? A. No, I ’ve kept informed on what I ’ve read. Q. And I believe you said you have read the U. S. World and News Report? A. And the newspapers and profes sional. Q. And the newspapers. What professional studies have you made or what studies that have been made on a pro fessional basis have you read? A. Administrative Jour nal, the NEA Journal; that type. 222 Julius L. Gholson—for Defendants—Resumed—Cross Q. Do you remember anybody who wrote any article dealing with this problem in any of those? A. Not specific names. Q. Do you remember the titles of any such articles? A. No. Q. Do you remember when any of them were written? A. Just general knowledge. Q. Just general knowledge? A. Right. Q. So that, really your statement on yesterday, in an swer to the questions which were propounded by Mr. Jones, relating to what you felt would be the result of starting at some place other than the 12th grade, or if they started at both ends or in the middle, was merely based upon your own subjective analysis and not based upon any profes sional accumulation of information which you had come upon, wasn’t it? A. Based upon my 30 years in the teaching profession as a teacher and as an administrator and with the activities that I ’ve had. Q. But you have never taught in a desegregated system? A. No. Q. Now, you don’t have any compilation of facts or figures relating to the number of teachers who would or would not refuse to continue to teach if the schools were desegregated, do you? A. No compilation, of figures, no. Q. You don’t have any figures at all, do you, in your office? A. No official figures. Q. You have no figures? A. No. Q. So that, again your answers to the questions which were propounded by Mr. Jones, relative to who would or who would not continue, was just some subjective thought that you had concerning the matter and nothing based upon any factual analysis or factual studies that have been 223 Julius L. Gholson—for Defendants—Resumed—Cross made? A. No, they were based on personal conversations by quite a number of teachers. Q. Excuse me, what do you call “quite a number of teachers”? A. Just that. Q. Well, I mean quite a number might be 5 or it might be 25? A. I would say 8 or 10 and they’re in a group that would be symbolic of that sort of reaction. Q. How would you know they would be symbolic? You didn’t ask the group? A. No, I just know their status would be in that same area there. Q. So, this is some more of your subjective analysis, is that correct? A. No, it was based on personal conver sations. Q. Well, you had conversation with 8 or 10? A. We’ve had principals who indicated that their teachers had told them, some of them, that rather than— Q. Did they say how many? A. No. Q. They didn’t say how many ? A. No. Q. Well, you have about 1200 and if you talked to 8 or 10, that might be 1/1000 of the total number of teachers that you’ve asked? A. It might be and if it grew, it might be 1-something else of it. Q. I mean, I haven’t figured it but I mean it would be an infinitesimally small figure? A. Based on the number who have spoke to me, yes. Q. All right, let me ask you this— A. Based on the trend, it could be much greater than that, of course. Q. It depends on which way it was trending, wouldn’t it? A. (No answer) . . . Q. Now, let me ask you this: How many classrooms, if you know, are there—well, strike that and let me ask you this— Do you know how many classrooms there are in the various high schools? A. I don’t have that information here. 224 Julius L. Gholson—for Defendants—Resumed—Cross Q. Do you have it here at all? A. No. Q. I believe you indicated that the pay scale was slightly higher per individual Negro teacher than per individual white teacher, is that correct? A. I did not. Judge Atkin son did. Q. Do you concur in that? A. Yes, I ’ll give you what the average is. The average Negro teacher makes, the average this year, is $5365; that’s the annual salary. The average for the white teacher is $5248, a little over $100 difference. That’s based on certification from the State. Q. Certification? A. And length of teaching experience, and— Q;. Excuse me, the checks come through your office, is that correct? A. That’s right. Q. Now, do you know whether or not the coach at Appling High receives a supplement to his salary by virtue of the fact that he coaches? A. The coach that’s been desig nated at any school by the Board of Education receives a supplement for his work. Q. Does that supplement run the same in all of the high schools? A. No. It would depend on the importance of his job, his experience, his background in the phys-ed department and various factors. Q. What do yon mean by the “importance” of his job? A. Whether he was head coach or an assistant coach. Q. Suppose he was the head coach? A. He would make more than he would if he were an assistant coach. Q. Would he make the same in Lanier as he would in Appling? A. Not necessarily, he wouldn’t make the same at Dudley Hughes as he made at Lanier or Appling. It depends on his background and his experience and his certification. All of those things enter into it. 225 Julius L. Gholson—for Defendants—Resumed—Cross Q. All right, they are both certified No. 4 and they have the same amount of teaching experience: would they then receive the same thing! A. They’re what now! Q. They are certified on what we call a 4th level grade certificate and they have the same number—they have the same teaching experience from the standpoint of years! A. Are they head coaches or assistant coaches! Q. They’re head coaches! A. They make different amounts. It would depend on their background, what they had done. Q. What do you mean! A. Their initiative, their ability to coach. Q. You mean to win! A. The personal factor. No, this system does not emphasize winning ahead of everything else. We, of course, like to win, but no.person has ever been fired in Bibb County for not winning', as they have in some other systems. Q. They’ve both been coaching for the same number of years; they both have 4-area certificate; that’s not the word “area”—what is the proper word! This 4th echelon of certification! A. 4-year certificate based on 4 years of college work, that’s it. Q. All right, let’s take it mp a step, let’s make it 5; they have 5-year certificate; they’ve been coaching the same number of years; they’ve been at their respective schools the same number of years! A. There might be a variance in their supplement for coaching based on personal matters that involve initiative, ability and so on. However, from the standpoint of their academic, they would both make the same thing. Q. They would be paid first as teachers ? A. Right. Q. For 4-year certificate! A. Right. Q. Is that correct! A. That’s right. 226 Julius L. Gholson—for Defendants—Resumed—Cross Q. And then, there would be a supplement which is paid pursuant to a formula, which becomes subjective then to the Superintendent, is that correct, or to the Board? A. They would be paid—at the time that they were employed as that coach, we would determine and negotiate then and that would be part of their contract. Q. So, they might not get anything? A. Yes, if they were a head coach, if they were a coach, assisted in that, they would get a supplement. Q. But it just might vary from school to school? But it might vary from school to school? A. They don’t have a standard pay scale for coaches. It varies on the indi viduals and his background and his experience. Q. I see you put out this instruction sheet that goes along with the procedure for executing student transfer requests: Has the Board or your office at any time ever drafted a little instruction sheet for parents relating to the matter of the desegregation process? A. Not at the present time. We’re waiting for the Court to direct us and then we’ll do what’s necessary in preparation. Q. Have there ever been any joint meetings, joint teach ers’ meetings or joint principal meetings? I believe you said there had not, is that right? A. Our teachers groups have separate professional organizations. One of them is the Bibb County Teachers Association that affiliates with the Georgia Teachers Association. That’s the Negro pro fessional group. The other is the Bibb Educational Asso ciation and it affiliates with the Georgia Education Asso ciation. Q. But I mean you have the authority to draw or to have the principals meet at any time and any place that you see fit, without any relationship which they might have to their respective teaching associations; isn’t that true? A. That’s true. 227 Julius L. Gholson—for Defendants—Resumed—Cross Q. But this does not happen! A. We meet separate. Q. There’s no contemplation of any change in that as of this time? A. I couldn’t answer that. That depends on the need, the circumstances, and many things. Q. Then, your answer to my question is “no”? A. Not necessarily. Q. You do then contemplate making some change? A. If there should he a need, an urgent need for it, we would certainly consider it, yes. Q. You would consider it? A. Yes. Q. But there’s been no consideration made of it as of now? A. We haven’t found it necessary to do that as of now. Q. Now, one last set of questions: You discussed the matter of certain schools being in various states of con struction. Now, this Ballard Jr. High of some 40 rooms, which is to be a mile and a half, give or take a few blocks, from the original school, has the foundation been poured in that school? A. The foundation work has been begun. Q. To what extent? A. I wouldn’t know the latest de velopment of it. The weather has caused us to be 3 or 4 months behind in all of our building projects; but that school had one of our priorities. Q. Have the footings been done? A. I would not know just what the status is because the weather has delayed us out there. Q. In other words, you’re saying you don’t know whether it has begun at all or not? Mr. Jones: He didn’t say that, Your Honor. He said it had begun. Mr. Hollowell: Well, I ’m asking him the question. The Witness: The architect— 228 Julius L. Gholson—for Defendants—Resumed—Cross Mr. Jones: You’ve already asked Mm the question and lie’s contradicting the witness’ statement by say ing “you don’t know something”, when the witness has just testified he did know. Mr. Hollowell: The witness is on cross examina tion. Excuse me. The witness is on cross-examina tion and I can lead him if I want to, I submit. Mr. Jones: If Your Honor please, I wish to regis ter a protest against the examination of that nature; and I, of course, would like to direct my remarks to the Court. And that’s all I have to say. Mr. Hollowell: May it please the Court, I would submit that when the testimony was given on yester day relating to these schools, it was—I ’m almost tempted to use our word, Your Honor—it was a little “queasy”. But it was unclear as to what the various status was or were in each of these particu lar pieces of property, where construction is going on; and he said that Ballard was under construction. I want to know whether it has been framed or whether the footings have been dug or whether the foundation has been poured. The Court: All right, I ’ll overrule the objection. I don’t think you were undertaking to quote the wit ness as to what he said. Mr. Hollowell: No sir. The Court: You were just trying to shake him. So, go ahead. By Mr. Hollowell: Q. If you know, Mr. Gholson; I ’m just trying to get at what you know? A. Let me say that we were informed by 229 Julius L. Gholson—for Defendants—Resumed—Cross the architect that the foundations had been established there and I imagine the footings have been poured by this time. Q. For your information, you have to dig the footings and then you would pour the concrete for the foundation? A. All right. We were told that the foundations had been laid. Q. Have been poured, all right? A. Yes. Q. Now then, this Negro high school at Appling, 25 or 30 rooms, you say that is in the planning stage! A. That’s correct. Q. What do you mean by the “planning stage”? A. The type of building and the facilities to house the various de partments and so on. Q. Wlrat architect is working on this or has it gotten to that stage yet? A. Well, Mr. Chester Crowell is our architect and we are in the planning stage of that now, to determine just what the building will do to produce the atmosphere for learning and for taking care of the various departments. Q. When you say “we”, are you talking about the Board is in the process of doing some thinking about this subject and it is being turned over to the architect, Mr. Chester— who? A. Chester Crowell. Q. Crowell? A. Crowell. Q. How do you spell it? A. C-r-o-w-e-1-1 (spelling). Q. Is it still in the board process of trying to make some analysis of what the basic need is, so it can be turned over to Mr. Crowell, or is it that it has been turned over to Mr. Crowell to try to produce for the school something consist ent with what they’ve already told him? A. The, Board is working with Mr. Crowell in the planning, the preliminary planning of the building. 230 Julius L. Gholson—for Defendants—Resumed—Redirect Q. When is it suggested that this might get off of the Board? A. Well, you have quite a few approvals that have to be made. It will take several weeks probably. Q. It might even take several months or several years? A. Well, it could but we don’t plan to. I t’s one of our priority needs and we’re making definite plans to build it. Q. Now, is the planning stage at McEvoy and Willing ham, those two new junior highs, are they both about the same as this planning stage on—what was that—Appling? A. No, Willingham is behind Appling and McEvoy is be hind Ballard-IIudson. The Negro high schools are ahead of both of those in their building. Q. Excuse me, and the reason for that is that that is where the greatest need is at this time, isn’t it? A. That’s right. I wouldn’t say the greatest. McEvoy is just as over crowded as the others but it just happens that they’re on the schedule that way. All of our facilities have been taxed with the increase in school enrollment in this system. Q. I don’t believe there are any further questions for the Superintendent, Your Honor. Redirect Examination by Mr. Jones: Q. Just one, Your Honor please: Reference was made to membership in teachers’ organizations and you said there were two separate organizations: Does the Bibb County Board have anything whatever to do with those? A. None whatsoever. Q, So far as you know, if members of one organization desired to join the other, could they do so? A. It would be up to the organization but not the Board of Education. Q. I said, so far as the Board was concerned—let me re phrase my question—- So far as you or the Board are con cerned, if one of them desired to join the other organiza- 231 Julius L. Gholson—for Defendants—Resumed—Redirect tion, or if they desired to merge and consolidate, would you have anything to do with that? A. No sir. Q. That’s all. By the Court: Q. Mr. Gholson, I believe in the high schools for white children, we have segregation according to sex, that’s cor rect, is it not? A. Yes sir. Q. Is that true as to the Negro schools or not? A. No sir. Q. And that has always been true in Bibb County as to the white children or not? How long, how far back does that go, do you know? A. It started in 1924, Judge Bootle. Q. Began in ’24? A. Yes sir. The Court: All right sir; any other questions, gentlemen. By Mr. Jones: Q. May I remind the witness that I think perhaps he didn’t consider Dudley Hughes in making that answer. Now, am I correct or wrong? A. Well, he said all of the high schools. Of course, Dudley Hughes is a high school— The Court: And you do not have that there? The Witness: With the exception of Dudley Hughes. The Court: That’s right. The Witness: We have one co-educational white high school. Mr. Jones: No further questions. The Court: Very well; go down, sir. 232 Colloquy Mr. Jones: Your Honor please, my next witness I expect to be the last one. I only expected to ask him a few questions but I wanted to give Mr. Hollo- well an opportunity to read this memorandum be fore I put him on the stand. The Court: All right. Mr. Jones: I don’t know whether Your Honor might consider at this time a brief recess or whether you would like for me just to take time for Mr. Hollowell to read this. The Court: We’ll just take the time and let him read it. (Exhibit D-14 handed to Mr. Hollowell) . . . The Court: I wonder if I may see the ’63-64 an nual report, which is mentioned in this literature? Mr. Jones: Yes, Your Honor, here it is. We ex pected to offer that page in evidence. I think the reference is to page 104, if I ’m not mistaken. The Court: Yes. You may give that a number. The Clerk: Just the page or the book? Mr. Jones: I don’t care to offer anything but the page. However, if Your Honor thinks the bulletin will be of any help, I ’ll offer the whole thing. The Court: Well, I know nothing about it except the reference here. Mr. Jones: It does contain everything, a great deal of financial data but page 104 is the only page. The Court: This is reference to the transfer rules, is it not? Mr. Jones: That’s right, applicable to high school students. (Page 104 of 1963-64 annual report, identified as Defendant’s Exhibit D-14.) Mr. Hollowell: You don’t happen to have another copy, do you (referring to D-15)? 233 Raymonde M. Kelley•—for Defendants—Direct Mr. Jones: Yes. Mr. Hollowell: Could I have another copy? Mr. Jones: I was going to give you that one, but I’ll give you another one. . . . (5 minutes later) . . . Shall I proceed now? The Court: Yes. Me. R aymonde M. K elley , witness called in behalf of Defendants, being first duly sworn, testified on Direct Examination by Mr. Jones: Q. State your name, please, Mr. Kelley, to the Court? A. Raymonde M. Kelley. Q. How much? A. Raymonde M. Kelley. Q. Raymonde M. Kelley? A. Yes sir. Q. Mr. Kelley, what is your official connection with the Bibb County Board of Education? A. I ’m Director of the Vocational Education Program. Q. Director of the Vocational Educational Program? A. Yes. Q. Does that include the adult program which is spon sored by the State? A. Yes sir. Q. Does it also include, at least to some extent, super vision of the programs which are vocational courses in the high schools? A. Yes sir, technical and some administra tive supervision. Q. You are then the director of that entire program? A. Yes sir. Q. Is there a principal of adult vocational education through whom you work or is that directly under your supervision, the adult program? A. That’s directly under 234 Raymo-nde M. Kelley-—for Defendants—Direct my supervision, with administrative assistant helping me, Mr. Bob Horton. Q. An administrative assistant! A. Yes sir. Q. Now, insofar as high school courses are concerned, is that under the jurisdiction of a principal of the respective high schools? A. Yes sir, the students and administration of the program are under the jurisdiction of high school principal in all instances. Q. But over all under your supervision, so far as the vocational work is concerned! A. That’s right. Q. Mr. Kelley, will you state to the Court in your own language the emphasis which is being placed upon voca tional education, both at preparatory and high school levels and adults, and the need for it; just any observation that you feel that you could make to enlighten the Court as to the importance of vocational training, and the place which it now occupies in the public school programs? A. Yes sir, I ’ll be glad to. One of the best evidences that I could state is the fact that President Johnson signed a bill on December 19, making more funds available, about four times as much funds, as much money available for voca tional education as had ever been before. The State Department of Education has much more funds and much more emphasis is placed, and the local Board, as evidenced by the fact that they’re building two new area trade schools. In other words, there’s emphasis from every angle on it. The manpower development training program is a part of that emphasis. Q. That has generally been a matter of public note and public discussion in the papers and in periodicals, has it not! A. Yes sir, especially adult vocational education. Q. So far as Bibb County is concerned, at which high schools in the system is there a vocational course included 235 Raymonde M. Kelley•—for Defendants—Direct in the curriculum, preparatory course? A. The Dudley Hughes Vocational School and Dudley Hughes High School is, of course, the major one because it is a comprehensive high school, covering all phases of vocational educational department. The Ballard-Hudson school is the next largest. We have one program at Willingham. We have two very, very small programs at Lanier, Sr. Q. So that, the inclusion of vocational courses in your high schools is restricted to a limited number of schools or only a portion of them, but not to any one or two high schools? A. That’s right. Q. Generally speaking, is that available in the senior high school or in the junior high school? A. In the senior high school. Q. Is it available in all grades of the senior high school or particularly in the 10th or 11th grades, I mean the 11th and 12th grades ? A. Primarily in the 11th and 12th grades. That’s where it’s supposed to be by Federal and State ruling and policy. Q. That’s what I had in my mind? A. Yes sir. Q. It’s supposed to be restricted to the 11th and 12th grades ? Are there any exceptions ? A. If they’re 16 years old and older, we do put them in, in many instances before they get to the 11th grade. Q. Now, in addition to the vocational program in the high schools, is there a work study program in operation in the County? A. Yes sir, we have about 300 people in volved in this work study program in the high schools. Q. Now, to what grades is that available ? A. That is available to the 11th and 12th grades only. We have to hold that— Q. To the 11th and 12th grades? A. Yes sir. Q. What do you mean by “work study program”? How does that operate? A. The students in these programs, we 236 Raymonde M. Kelley■—for Defendants—Direct have 6 programs, I believe or maybe more if you count them; but anyway, the way it operates, the student is re sponsible for going to school 3 hours a day, and then they must work a minimum of 15 hours per week for an em ployer, and they are graded on their work out at industry or sales or whatever, office work or whatever they’re en gaged in. Q. Now, do I understand that before a person will be eligible for that course, he’s required to have 3 hours of school work and 15 hours a week of employment! A. That’s right. Q. Is that correct? A. That’s right. Q. Then, do each of those requirements limit the other; that is, a person who can’t get the 3 hours school day, even though he may have employment, or the person that can’t get the employment even though he may have the three hours school day: would either one of those prevent his eligibility for that work? A. He could not stay on the program unless he had 3 hours in school, and we make every effort possible to place all of these people on jobs by the end of the first grade period and, if we can’t place them by then, we have to put them into other courses, so that they can continue their— Q. Then, you mean that there is a trial period of pre liminary period, during which you make the effort to place them? A. That’s right. Q. But if you’re not successful in that effort, then they have to take other work? A. And generally speaking, these coordinators, that’s teachers of these programs, work 12 months in the year and they work during the summer on getting placements for the coming September. Q. Then, you’ve already anticipated my next question. It is actually then a part of this program, which is under 237 Raymonde M. Kelley•—for Defendants—Direct your direction, to secure employment, so as to make this work available! A. That’s right, yes sir. Q. Now, in addition to that, is there a vocational pro gram for adults only? A. Oh yes sir. Q. And that really makes three types of vocational pro grams that are under your direction or supervision! A. That’s right. Q. The work-study program, the preparatory program and the adult program! A. That is correct. Q. Where is the adult— First, where is the Work-Study Program conducted at, what schools! A. We have three at Dudley Hughes. Would you like for me to name the areas in which they operate or just tell you the names? Q. No, just the location of where the courses are con ducted, the school facilities? A. We have three work-study programs at Dudley Hughes and then we have two work- study programs at Ballard-Hudson and one at Willingham High School. Q. Now, that’s your work-study program? A. That’s the work-study program. Q. H owt about your preparatory courses? I believe we’ve already covered that, I ’m not sure, or maybe we haven’t. Where are they given, the preparatory courses? A. Pri marily at Dudley Hughes and Ballard-Hudson and two at Lanier, two small ones at Lanier. Q. Generally speaking, both of those programs are avail able only to senior high school students? A. Yes sir. Q. Now, where is your adult vocational program con ducted? A. Well, it’s conducted at Ballard-Hudson and at Dudley Hughes and in several rented buildings around Dudley Hughes. Q. For use on this trial have you prepared this memo randum which I hand you, Mr. Kelley? A. Yes sir, all of Sunday afternoon and most of Sunday night. Raymonde M. Kelley—-for Defendants—Direct Q. I notice it’s dated the 12th, that was actually Sunday, is that right? A. That’s right. Q. You did complete it then Sunday night some time? A. Yes sir. Q. Did you sign that or would you now sign it? Is that entirely your work? A. Yes sir, it’s entirely my work. Q. Would you mind signing your name to it? A. I ’ll be glad to. Do you want it on each page? Q. No, just the last page? A. (Witness signing docu ment identified as D-15). . . . I included my full title. Q. Are the facts stated in this memorandum factually correct? A. Yes sir. Q. To the extent that opinions are expressed, are they your opinions? A. Yes sir, opinions of mine and my staff and my 22 years experience. Q. Well, are they actually yours? A. Yes sir. Mr. Jones: If Your Honor please, I ask that that be identified for the Defendant. (Identified: Defendant’s Exhibit No. 15.) And no further questions of this witness. The Court: Now, we’ll rest for 10 minutes. Let me see that exhibit, please sir. (Recess: 11:00 AM to 11:15 AM—April 14, 1964.) The Court: All right, Mr. Hollowell. You had finished with him, Mr. Jones? Mr. Jones: Yes sir. 239 Raymonde M. Kelley—for Defendants—Cross Cross Examination lay Mr. Hollowell: Q. Mr. Kelley, was on April 12 the first time that you had ever drafted anything such as this Defendant’s Ex hibit for identification No. 15? A. No, that wasn’t the first time. Q. Sir? A. It wasn’t the first time that I ever drafted anything. Q. Well, I mean relating to this matter, to the matter of the actual desegregation process in the vocational train ing program? A. No, I drafted a letter to Mr. Gholson when we were working on the Manpower Development Training Program and Offset Printing along the same, somewhat the same lines as that. Q. Was there a distribution of this on a broad basis or only to Mr. Gholson? A. I believe it was only to Mr. Gholson, as far as I know. Q. Did it set out that this program was available to all people? A. Yes. Q. Now, when was that? A. It was in January of this year. Q. Of this year? A. That’s right. Q. Had there been any such before that time? A. Pos sibly, when we were working on the Electronics Program, in which Negro Bert Bivins was admitted. I don’t remem ber but there was possibly something along that line then. Q. Mr. Kelley, I ’m having just a little difficulty hearing; could you just speak a little louder? A. All right. Q. You say possibly the Electronics Program, you wouldn’t be sure about that? A. No, I wouldn’t be sure about it. I feel like that I did put out something of that nature, showing the necessity. Q. I see. To the best of your knowledge, was it directed also to the Board of Education or to the Superintendent? 240 Raymonde M. Kelley—for Defendants—Cross A. All iny letters are directed to the Superintendent con cerning this kind of thing. Q. Have you ever seen any publication or distribution of that which you sent to Mr. Gholson? Have you ever seen any publication or distribution of it on a broad circle to the other schools or in the newspapers? A. No. Q. At the time when you had made or given these notices to Mr. Gholson, had you made any recommendations to the effect that there be a broad distribution, so that Negro and white citizens in the community might be able to take the fullest advantage of the program? A. Well now, the program was publicized but not the letter to Mr. Gholson, but the programs are always publicized. Q. Well, the program as such is publicized by the bro chures and so forth which might come down to you from either the State or Federal Government in this matter, is that correct? A. No, we create the brochures. Q. You create the brochures? A. And publicize the pro gram through the newspapers and other news media. Q. I see. In the past there had not been any Negroes in attendance at Dudley Hughes to take advantage of the programs there, had there? A. We now have two. Q. I say in the past? A. Well, up until 18 months ago. Q. Now, those two are where, at Dudley Hughes? A. At Dudley Hughes. Q. Those were in the adult program? A. That is cor rect. Q. Have you or have you not ever recommended that this program be made completely available on a broad basis through the Board of Education? A. That is policy, which the Board of Education would be the ones to determine. I have talked with them about it. 241 Raymonde M. Kelley—for Defendants—Cross Q. Do you know whether or not they have ever done this ? A. They have been most cooperative in the adult area by going into this pre-court ordered thing of letting Bert Bivins come in on individual basis and on the Manpower Development Training Program. It was approved as a program for all who come not as an individual. However, Bert Bivins was approved as an individual. But now we have an approved program as such. Q. Now, do I understand that it is your contention that all of these programs that are now offered at Dudley Hughes and that are nowT offered at Ballard are available to all people who can qualify by virtue of taking the tests which are offered in advance of their acceptance? A. Only the Manpower Development Training Program has been approved by the Board of Education for integrated classes. Q. I see, only that? A. Only that one program. Q. Do you know whether that was approved through a resolution or was it approved by a letter to you? A. I do not know. I was notified by the Superintendent to proceed with the Manpower Development Training Program. Q. Then, how did you notify the total community? A. The Employment Security Office in Macon on this particu lar program, they do the selecting of all students coming into it by means of tests. Those students are referred to me. And so far, I haven’t refused to take any one. I would have the authority to refuse to take any one who did, who they referred; but so far I have not refused to accept any student referred by them. And they did the publicity on it, Q. The Employment Security Program did the publicity? A. That’s right, Mr. Joe Jackson, the Manager. Q. Do you know to what extent that publicity ran? A. Well, it has to be on people who are unemployed; so they 242 Raymonds M. Kelley—for Defendants■—Cross did it by mail. They pulled the cards on job applicants and mailed notices to them to report for tests. Q. Now, suppose that the individual—well, strike that and let me ask you this— Do you know generally the nature of the test? A. I t’s what is known as GATB, which is general aptitude test administered by the Employment Security office personnel. Q. Do you know whether or not there is any program which has been instituted by—what is it, the Employment Security— A. Employment Security office, yes. Q. —to train individuals preparatory to taking the test? A. No, there is no such thing existing as far as I know in any area. Q. As the Director of the Program, and realizing the tremendous limitations that Negroes have had to even prepare for this kind of thing, that is the kind of person who might be taking this test and who is unemployed and who would need the training, would you say that such a program would be advisable and good? A. I already have one of that nature approved, because I realize the need for that kind of thing. "We have a program under the Man power Development Training Act, which as soon as the money is appropriated—the Act has been passed—we will take a group of people into Auto Body and Fender, who will get one hour a day remedial training, such as reading and that kind of thing. They will be unemployed adults and they will not be required to take the test even at the employment office; and we’ll take all who come and then try to improve from what we get in. Q. I see. Now, what about other areas, say the auto mechanic situation? A. We have—this is pilot program that we plan to see how it works. Now, we don’t know whether it will be the thing to do or not. 243 Raymonde M. Kelley—for Defendants■—Cross Q. When do you plan to institute this! A. As soon as the appropriation is passed by Congress. They’re a little but busy up there in the Senate right now. Q. Do you know whether or not in the school system there is any other adult education program sponsored! A. State the question again, please! Q. I say, do you know whether or not there is any other adult program fostered by the Board of Education; that is adult education program! A. It all is under the Dudley Hughes program in different areas, different geographical locations, but all the adult training is under the Bibb County Board and the vocational program. Q. What I have reference to, Mr. Kelley, other than vocational program which you have discussed, and I am seeking information here! Do you know whether or not there’s any other adult program, particularly of a remedial nature, which is sponsored by the Board of Education! Eeally I should have asked Mr. Gholson that but I didn’t ; and so, I ’m asking you if you know! A. It would come under my supervision anyway. Of course, there is one planned this summer, which I do know about, for reading. I know—I don’t know anything about the details as that would be Mr. Gholson’s business. Q. This vocational education plan—incidentally, if this is going to get any wide distribution, may I suggest that you make correction in the spelling of the word “integra tion’’ here; if you’re going to give it wide distribution, you might, I think it occurs also in the last— A. We were doing that late Sunday night; so you might find several things wrong with it. Q. I ’m not criticizing, I ’m trying to be helpful, Mr. Kelley! A. I know. Q. I ’m trying to be helpful! A. Okay. 244 Raymonde M. Kelley—for Defendants-—Cross Q. In case you plan some wide distribution of it, you might want to do that. Mr. Jones: Tour Honor please, that was not pre pared for distribution. It was simply prepared as information to be presented in this case as evidence. There may be some distribution of something but that was not prepared for that primary purpose. Mr. Hollowell: I understand. As I say, I ’m just trying to be helpful in case there was going to be some wide distribution, that you would want to make that correction, I ’m sure? The Witness: Yes. Thank you, sir. Q. Let me ask you this, Mr. Kelley, looking on page 2 on this would be (b)-3, it says: “No vocational cooperative training—work program— is offered at Ballard-Hudson, due to the fact that the community will not employ enough part-time Negro office workers to support the program. (These part- time students are not eligible for government work)” Do I understand by that, that there is no such program at Ballard-Hudson, because these persons can’t get part-time work in the total community, either in the downtown area or in some government office? A. No, in the total com munity? Q. This is in the total community? A. That’s right. Q. Do you know whether or not there has been any group or whether or not the school through its placement of facili ties—I ’m speaking of the Dudley Hughes now or the other high schools—wherein there has been an effort to educate the general community toward accepting these trainees, 245 Raymonde M. Kelley—for Defendants■—Cross in order that they might be able to have such a program? A. Definitely. We have tried to and we have succeeded in doing enough education along the lines of sales training work. The sales training work at Ballard-Hudson is doing much better, but we are still having difficulty educating the community in the field of accepting Negro office work ers, into the office training field. Q. Have you at any time addressed this matter to the Human Relations Council or other organizations that might be able to give you some help along these lines? A. No, we worked on it within our own organization because when we go out into that, then we get into the policy field again. Q. Now, what do you mean by these part-time students are not eligible for government, what do you mean by that? A. These people have to go to school three hours a day and the Government’s programs are not set up to use part- time workers, other than in the Postal, mail-handling field and that kind, but not part-time office workers. Q. I see. So, the only way they could get into the govern ment is that they would have to have already been trained? A. And we have a program for that on a night basis for adults. Q. Is there a part-time program at Dudley Hughes in vocational office training? A. Yes, a very successful one. Q. I ’m sorry? A. Yes, a very successful one. Q. Now, is it your understanding that under the program any student, who might take the initial aptitude test, might get into this program at Dudley Hughes? A. That will depend on the outcome of the plan. Q. Of the plan? A. It is not presently authorized by the Board of Education that they do that. Q. I see. Who pays you? A. Bibb County Board of Education. 246 Raymonds M. Kelley—for Defendants—Cross Q. So, actually all of this plan and all of your activities, though there are supplements coming from various geo graphical subdivisions, actually you come under the control of the Board? A. That is correct. I ’m responsible to Mr. Gholson, Superintendent, directly responsible to him. Q. Therefore, this is an official part of the plan, this procedural—what do you call it—“Vocational Education and the Plan for Integration”, should be technically a part of the planning aspects and procedural aspects and admin istrative aspects of this Plan that has been submitted by the Board? A. That would be determined by people of higher echelon administration than I am. Q. What would you estimate the value of the equipment in the machine shop at Dudley Hughes to be? A. In the machine shop ? Q. Yes? A. Oh, presently in use, $50,000. Q. Is there some anticipation of additional equipment? You said “presently” in use and this is what provokes the question? A. Yes. We’re in the process now of recondi tioning and rebuilding the machine shop equipment for both the new area trade schools, which will run approxi mately $100,000 each in each one of them. Q. When you say the “new area trade schools”, now where are they? These are schools in supplement of the vocational training program that you have in these schools that we have already discussed? A. Yes. Q. These are new schools yet unbuilt? A. These are new schools yet to be built. Q. Which will come under your supervision? A. Yes,, as far as I know now, that’s correct. Q. How many of them are there planned? A. Two. Q. Do you know the general locations? A. Yes, one is approximately 300 yards from the Ballard-Hudson shop 247 Rayrnonde M. Kelley—for Defendants—Cross building and the other one is 40 feet from the Dudley Hughes building. Q. Is it anticipated that they would offer the same kind of program? A. There again, we get into a new philos ophy. In the past we have trained for existing jobs and that was borne out in the office training instance there; but we are faced with a new kind of thing, sort of, the nature of the thing, which comes first the chicken or the egg, whether we get the trained worker or the job first. So, we are going to delve into preparing Negroes for higher level jobs and using this school adjacent to Ballard-Hudson as a feeder to the large school at Dudley Hughes. This is presently my thinking. I don’t know that that will be done because it’s a matter of policy. Q. Now, I notice that the word “feeder” is used in the Plan as you have drafted here now. Do I understand that the courses which are being offered, for instance at Ballard- Hudson—Hudson-Ballard or is it Ballard-Hudson? A. Ballard-Hudson. Q. Thank you—or shall we say first echelon or ele mentary types of courses, type of courses, pursuant to taking more advanced courses at Dudley Hughes? Is that what you mean by “feeder”? A. It would mean in the ease of one course that we have out there, that is electronics, but all the other courses are top echelon courses and they prepare people to go out and really get with it and go to work. For instance, you were talking about the new high schools. Two of our graduates from the Ballard-Hudson School are brick contractors, sub-contractors for the brick work on the whole school building, which is a credit to any program to have that kind of people coming out of it. But getting back to this “feeder” thing, now Bert-Bivins was trained about, I believe 6 or 8 months, in the electronics 248 Raymonde M. Kelley—for Defendants'—Cross program at Ballarcl-Hndson and he did a good job over there; and when he came into the Dudley Hughes program, he was able to be very successful. He hit about the middle of his class all the way through, sometimes above and sometimes a little below. Q. Let me ask you this: Do they have the same echelon of training at Dudley Hughes that they have at Ballard, plus the advanced program, or just the advanced program1? A. We have the same plus the advanced program in Elec tronics. Q. And machine-shop-wise as of now there’s only one machine shop ? A. That is correct. Q. Now, how does one get into that program? A. We have a testing and have had a testing program for about 18 months because we were getting so many drop-outs and fall-outs. The training gets more difficult on the higher level. So, we obtained the services of Mr. Pat Massey over at Mercer University and we have him on retainer basis; and we have a selection program for all students and .it is most necessary. We find that it’s being very successful. Anybody that makes application to go to the machine shop, we’ll use that as one but it’s for all courses, they have to take a test as prescribed by him and he grades it and gives me a write-up on it, and we set up a folder on that person; and then, if they pass it, they’re admitted after interview. The test is not the only measure but it’s the primary measure. Q. Would you suggest that if you had, talking about the area trade schools that are anticipated, that if you had one really first-class school, that anybody qualified could attend, that you might get a better quality of product ultimately than in spreading the little money that is being anticipated for the construction of the two schools? A. 249 Raymonde M. Kelley—for Defendants-—Cross The matter of one or two schools is a matter of policy of the Bibb County Board of Education, and I don’t care to comment on policy. Q. I think that’s a good answer, Mr. Kelley. Let me see, I have one or two more things here I wanted to ask you. Now, for my clarification, Mr. Kelley, the whole program of vocational training is not adult? A. No. Q. The adult program is completely separate from the program which runs as a part of the regular high school curriculum, is that correct? A. No, it is not completely correct. Q. All right now, explain that to me if there’s some— A. That gets into a thing that you’re going to have to fol low real close. Q. All right, I ’ve been trying to? A. The Dudley Hughes High School is a unit of the vocational program. It is what is known as. a “comprehensive high school.” We are primarily set up at the Dudley Hughes High School to train people to go to work. Now, if they’re going to college, we’d rather they’d go to one of what we call the “college preparatory high schools” and take a college preparatory course. So, this high school is set up in the Hughes building and many of these 11th and 12th grade people go to class with adult students who are there at the same time. Q. I see, so that this is technically a vocational high school? A. Yes. Well, I ’d rather call it “comprehensive” high school. Q. All right, in that they offer the ordinary subjects which any other high school might offer? A. Correct. Q. Plus a vocational training program? A. Correct. Three hours a day in the 11th and 12th grades is what vocational work they get. Q. Say that again? A. Three hours each day in the 11th and 12th grades is vocational. 250 Raymonde M. Kelley—for Defendants’—Cross Q. Now, at the other schools, say at Ballard and Lanier and Willingham, where you have vocational programs, is it a separate adult and high school student program, or are they combined, or are they separated? Explain this to me. A. Well now, at Ballard, up until the time that the enrollment got so heavy that we didn’t have space for them, we had the adults and the high school people going at the same time. Then, the high school pressure got too great there; so, all the adults at Ballard have to go at night now. There’s no room out there for them in the day time. I t ’s a space situation. Q. How about Lanier? A. That is strictly a high school vocational program. We do not have an adult program at Lanier. Q. How do the courses of training run there, as com pared, say with those at the Ballard day school program, which is relegated only to students also? A. Yes. We have two very small programs at Lanier, one in wood shop and one in sheet-metal; and we don’t have enough enrollment in those to go too much longer. Q. How about Willingham? A. We have only the work- study program and distributive education at Willingham. Q. And what kind of education? A. Work-study. Dis tributive education, that’s sales training. Q. And, of course, there is none at Appling? A. No. Q. Can a student who wants to take machine shop and who is in attendance at Ballard go to Dudley Hughes to take that training? A. Not without Board of Education authorization on the present set-up. Q. Now, as you understand it, could he do it anyhow unless he was in the 12th grade? A. Be-state your ques tion, please. 251 Raymonde M. Kelley—for Defendants■—Cross Q. I say, unless—I say lie couldn’t do it anyhow, he couldn’t make the transfer from Ballard, where there is no machine shop, to Dudley Hughes, where there is a machine shop program, unless he is in the 12th grade and makes an application within whatever period they set and the Superintendent approves his transfer to Dudley Hughes: Isn’t this your understanding of the way the program is to work? A. If he were 16 years old and going into the 11th grade and was approved by the Board of Education, and Mr. G-holson were to notify me, he could go. Q. Well, you understand that as of this time the plan doesn’t call for permission to transfer on the part of any one except those who would be in the 12th grade; you understand that, don’t you? A. Well, I wasn’t involved in that part with the vocational. I was telling the present set-up of the vocational program. Q, Well, there has never been up to this point anybody who was transferred from any of the schools in the regular day program to Ballard-Hudson, has there, no one of color transferred? A. No. Q. And under the program, as you understand it now, there is no contemplation that there would be? A. Well, as part of this— Q. I mean, as you understand it? A. As I understand it, that’s correct. Q. That would be correct? A. I don’t know of any. Q. So then, as I understand it, the only place where, there is any integrated or desegregated process in existence at Dudley Hughes, relates to adults who might make appli cation through the Employment Security Program and be approved by them, by virtue of passing a test, and thereby they would be able to get in to the adult program; is this 252 Raymonde M. Kelley—for Defendants—Cross correct? A. On the present approval basis, yes. The Board has authorized that program only. Q. And that only? A. And that only. Q. Is this your language, this last sentence down here on the last page, page 4? Well, we’ll take both nest to the last—and yon have that same misspelling there— “The adult vocational program is the program under considera tion for integration.” I believe this would be consistent with what you say, “only the adult program is under con sideration”, according to what you have said here? A. That’s right. Q. “In no way is this to be construed as pertaining in any manner toward integration of the Dudley Hughes High School operation, other than on conditions applicable to all other Bibb County high schools.” A. That’s correct. Q. This is as you understand it? A. 'That’s the way I understand it. Q. So then, what we said about the matter of the transfer from one high school to another in order to take advantage of the program at Dudley Hughes, would be governed by the proposed plan? A. That is correct. Q. And woidd relate only to individuals on the 12th grade level, as of September, ’64, as you understand it? A. As I understand it, that is correct. Q. Thank you, Mr. Kelley. I believe that’s all. By the Court: Q. Mr. Kelley, let me ask you one question, I ought to know: Just what is meant by “distributive education” and what is meant by “diversified cooperative training”? A. Your Honor, distributive education is training for sales positions; in other words, distribution of goods and ser- 253 Raymonde M. Kelley—for Defendants—-Cross vices. Diversified cooperative training is work-study pro gram, which deals with a much wider range of jobs, such as you would find in industry, service work, maintenance work and all that kind of thing. The Court: I see; thank you. Mr. Jones: You may come down, Mr. Kelley. That completes our case, Your Honor, except for some introduction of documents. The Court: All right. You may introduce those right now, if you like. Mr. Jones: The reporter has identified, I believe, a total of 16 exhibits. The Clerk has them there on the desk. The Clerk: Fifteen. The Court: Fifteen with this gentleman’s report. Mr. Jones: I would like to introduce them col lectively. The Court: Very well. Mr. Jones: Only one has actually been admitted in evidence so far. Unless it is for some reason necessary to enumerate them in offering them, and offer them separately, we will handle in that way. The Court: All right, you certainly may tender them in a group and we’ll see what objection there may be. The Clerk: D-4 has already been admitted. The Court: Any objection to this collective tender? Mr. Hollowell: If I could take a look at them for just a moment, Your Honor, I think maybe we might be able to expedite it. The Court: All right, now I have a number of them up here. 254 Defendants’ Exhibits Mr. Jones (to Mr. Hollo well): I will be glad to supply you with a copy of any of those that you do not already have a copy of. Mr. Hollowell: All right (checking through ex hibits at Clerk’s desk) . . . No objection to 1 through 3, so far Your Honor. #4, I believe, has been ad mitted? The Court: Yes, correct. Mr. Hollowell: No objection to # 5 ; none to 6. . . . I ’ve seen 7 and there’s none to that . . . I ’ve seen 8 and none to th a t. .. none to 9. I think I really ought to object to #10, being a petition in a given case in the State court, which is a court of record. All I can see that this does is to clutter the record. There were allegations and state ments to the effect that this was in fact done, and there being no judgment thereon, I think it would be meaningless. Mr. Jones: The order is the next paper. Mr. Hollowell: All right. With that I won’t even make the objection. So, that will be 10 and 11. The Court: 11 is the decree, is it? Mr. Hollowell: Yes sir. This is the resolution. None to 12; 13 through 15, no objections. The Court: All admitted. (D-l—D-15) Mr. Jones: Now, if Your Honor please, I have one thing further I wish to offer. This again refers to the State Court proceeding, and this is a brief here in my hand, which the Board filed before Judge Aultman in that case. I wish to offer the following extract from that brief as a statement of the Board’s motive and purpose. May I read it now? The Court: You may show it to counsel. 255 Defendants’ Exhibits Mr. Jones: That’s the second to the last para graph of the brief: “We wish to make it clear that the Bibb County Board of Education has no desire to shirk or evade or to surrender either its corporate responsibilities or its corporate powers. “It is the objective of this petition to obtain a decision by this Court under which Plaintiff can lawfully under its charter provide a system of public schools for both white and colored children in Bibb County, notwithstanding a part thereof may be in valid which requires that separate and distinct schools shall be provided for the different races.” I would like for the reporter to identify that and offer that in evidence. The Clerk: That will be D-16. The Court: Any objection? Mr. Hollowell: AVe have no objection, Your Honor. The Court: Admitted. Mr. Jones: Counsel or Mr. Miller asked me—I won’t call him counsel, he’s my client—Mr. Miller asked me if a set of these procedures were offered. I ’m quite sure that’s correct. The Court: D-13. Mr. Jones: Thank you. That’s all, Your Honor. The Court: All right. Mr. Hollowell: May it please the Court, relative to matters which we addressed to the Court earlier relating to the Plaintiffs, where they live and so forth, I discussed that with Mr. Jones— Mr. J ones: And I meant to supplement that. Mr. Hollowed: —and there was a little supple mental stipulation which I think was in turn agreed upon. 256 Stipulation Mr. Jones: I told counsel that I would he very happy to substitute for the words “may well be” the word “is” or “are in fact” ; so that, that would be a stipulation of a fact. That’s sufficient, is it not! Mr. Hollowell: I think this would be sufficient to cover it which makes it unnecessary for us to put on anyone to prove it. The Court: Very well, so stipulated. Mr. Hollowell: We have nothing further. The Court: A11 right, both sides close. Do you gentlemen wish to argue your case orally or would you prefer to submit it by written briefs on a fast schedule time-wise! We are now, according to the plan the proposed plan as implemented by proposed procedures, today is the 14th; tomorrow we’ll be in the regular period for making applications for transfer. Mr. Jones: That is, for subsequent year. The Court: For subsequent year, that’s what 1 mean. Mr. Jones: That’s correct. The Court: So, therefore, I ’m taking notice of the calendar. I ’m a little incline—I think you gentlemen ought to order the record in this case; I think it ought to be reduced to writing. . . . How long would it take you here, Mr. Joiner, to transcribe this record ! The Reporter: I could probably get it out by Mon day, if that’s satisfactory. The Court: By Monday! The Reporter: I ’ll put it ahead of everything else I have. 257 Colloquy Mr. Hollo well: Might I say this then, Your Honor. Certainly, I think that it would be desirable to have some early ruling in this case. At the same time, I know that my schedule is tremendously mean, as is the Court’s ; and my preference would be, so far as the Plaintiffs are concerned, to argue the case orally; and then, if perhaps after the record came out, the Court felt that it might be helpful in presenting any supplement thereto, then certainly counsel would be most willing. But knowing my schedule as I do, un less the Court directed it, I would probably forego the matter of preparation of a brief except, as I said, by way of supplement. The Court: What is your pleasure there, Mr. Jones'? Mr. Jones: I fully agree with the Court that this is a matter calling for speed according to the calen dar. Our school system usually closes for summer around the first of June. I don’t know really that 30 days is required for registration for a transfer, but we have offered to allow 30 days; and I would like, the System would like for that period to start as early as May 1, so as to allow 30 days in the month of May before the schools stop for the summer. That calls for speed in connection with securing the record and in connection with arguing the case, and also on Your Honor’s part to some extent in acting upon the argument. Now, so far as the argument is concerned, I would like to have the privilege of submitting a written memorandum. However, that does not mean that I ’m not also quite willing to engage in oral discus sion of the question. In fact, it may be profitable 258 Colloquy to do that; yet, I would like the privilege of certainly in time, not to interrupt that schedule, to present a brief. And it may be that if counsel wants to pre sent his views now orally, then allow me to reply orally or to reply in writing, I will undertake to do it within a period of say not more than ten (10) days, which would be some time in advance of the first of the month. But I don’t even think it neces sary for me to wait to secure the record before I at least start the preparation of that. Mr. Hollowed: May I say, Your Honor, that we would be guided by whatever direction the Court feels would be most convenient for the Court in the matter. Mr. Jones: I have never felt that an argument, oral argument, to the Court after two days of testi mony right off the griddle at that time was too help ful. If there was a jury here, of course, that would be the accepted procedure. I believe my views are pretty well disclosed by the pleadings and by the testimony which we elicited. But I do want the opportunity to summarize that and present it to Your Honor in some form, either orally or in a written memorandum. The Court: What do you think of letting you gen tlemen go on to your respective offices and dictate your arguments right now, not wait for the record; have your briefs here by Monday1? The record will be available Monday. Then, say by Thursday of next week either side file any supplementation or rebuttal with the record before you. Mr. Jones: That’s entirely satisfactory with me. 259 Colloquy Mr. Hollowell: It so happens with me, Your Honor, that it would put an extraordinary burden upon me. I have matters where there are briefs that I already have to get out between now and Monday, one of which appears is going to take maybe all night because it is due tomorrow and we’ve already had one extension. The Court: Well, do you think it would help you somewhat if we hear your oral argument now? Mr. Hollowell: If we had no argument now? The Court: No, hear your oral argument now. I ’ll be glad to do that, and then Mr. Jones’ written argument to come in by Monday will be somewhat of a reply in nature. You have the burden here according to announcement at the beginning of the trial, anyhow. I ’ll be delighted to hear your argu ment now and that might shorten the preparation of your brief. Mr. Hollowell: I think maybe that might be de sirable. I know Your Honor made this statement earlier sometime down during the trial, and I wanted at some time to address myself to it. Your Honor indicated that we had, that we have the burden, and I want to say, I want to see if I understand what Your Honor means, whether you mean the burden of persuasion here or the burden—■ The Court: No, no, simply the burden—I gave you the burden of producing evidence here. Mr. Hollowell: Against the plan? The Court: That’s right, that’s right. I t’s stipu lated here that your Plaintiffs are entitled to some relief; there’s no doubt about that. 260 Colloquy Mr. Hollowell: I just wanted to have that clear, and that would— The Court: Now, the nature of the relief and the extent of the relief, that is what the meeting is about. Mr. Hollowell: Very well, sir. The Court: Now, how much time—and I ’m not hurrying you at all—how much time do you wish for argument now? Mr. Hollowell: Not more than 30 minutes and probably less. Really, Your Honor, all I want to do is to particularize. The Court: Well, that’s fine. So, we’ll do this: I ’m going to give you 30 minutes now and then I ’m going to give Mr. Jones 30 minutes, if he wants it, or I ’ll give him the option of following the brief route by Monday, either way he desires. And it may be helpful to follow this procedure now, so that we’ll at least know exactly what your objec tions are to the proposed plan; and we’ll be joining issue, so to speak. Now, would you like a short recess before argu ment or are you ready to proceed? Mr. Hollowell: I think I ’m ready to proceed, Your Honor. The Court: Very well. Mr. Jones: Will Your Honor excuse me to get some water just a moment? The Court: Yes sir. Mr. Jones: Mr. Hollowell may go right ahead. Mr. Hollowell: Yes, I would like some too. The Court: The witnesses may go, if they like; they are welcome to remain. 261 Plaintiffs’ Argument Mr. Hollowell: May it please Your Honor, I think in the beginning I ran through the written objec tions and I will not do so again at this time, because they have been reduced to writing and the Court has already read them and I have made some re marks concerning them. The Court: That’s right, and then you filed a pro posed substitute plan? Mr. Hollowell: We have filed a proposed substitute plan, yes sir. Therefore, we will relate our argument generally to the evidence and to certain conclusions of law, which we think are appropriate in the matter. No. 1, Your Honor, there has been the stipulation that we are entitled to some relief. There has been an admission of the fact that there is segregation in the public school system, that Plaintiffs and others now go to schools which are more distant from their residences than the schools which they now attend. Really, the Plaintiffs or the Defendants have sought principally to show that they have been work ing in good faith to produce a plan which will in fact do what the Plaintiffs are asking them for, and that is to come up with a non-racial system in the public schools of this City and County. Almost everything that was said by all of the wit nesses, when you take each one of them, step by step and remember what they said, it was principally geared to. try to show that “we have been trying to get ready over a period of the last 10 years.” Mr. Miller testified that a committee was formed back in ’55, after the first implementing decision, that there was a subsequent committee and then later there was a third committee, and that each of these committees began to do something after some request 262 Plaintiffs’ Argument had been made by either Negroes or white persons or a group of mixed persons, seeking to get the Board to do something; and that each time they formed a committee and the committee sought to do something. They have set up the fact that during the years from ’55 until ’61 there were certain barriers which had been set up by the State, the package laws, plus the laws which were already on the books, the appro priation bill, which would cut off funds; and then later on there was an attack which they voluntarily made upon the 1872 charter, the 5th provision there in. And so, they come to the Court here, “Now, we have acted in good faith all along, and what we want you to do”—in substance, this is what they appear to be saying, to me—.“is to just let us go as slowly as you possibly can; we know that we’ve got to do it and this plan is set up to do it in a good orderly fashion.” This is what they say. And that this is a pupil placement plan, designed to do the job effec tively and to comply with the order of the Court. But when you look at it, Your Honor, it doesn’t do this at all. Nor is there any contemplation that it will be done. Under the plan, as it has been submitted to the Court, they would start in September and put the burden on a student seeking transfer, in order to get out of a segregated school set-up. This is the only way and it is limited to the 12th grade. There is nothing that the Board is doing. The Board is providing a vehicle for him to transfer out, and we submit, Your Honor, that this is not what Brown means, this is not what Bush means, when they say 263 Plaintiffs’ Argument that a child has a right to go to school in a desegre gated system. The cases to me would seem to hold that this is not what they mean and I would like, if 1 might, to refer to what was said in Bush, Your Honor, Bush v. Orleans Parish School Board, with which I know this Court is very familiar: 308 F. 2nd 491, Fifth Circuit, 1962. The Court said this: “This Court, like both Judge Wright and Judge Ellis”—referring to decisions in which they had been in the case—“condemns the Pupil Placement Act when, with a fanfare of trumpets, it is hailed as the instrument for carrying out a desegregation plan, while all the time the entire public knows that in fact it is being used to maintain segregation by allowing a little token desegregation. . . . “The Act is not an adequate transitionary substi tute in keeping with the gradualism implicit in the ‘deliberate speed’ concept. It is not a plan for de segregation at all.” And this is what we say here. This is no plan, for desegregation. At the end of the period when we have run from the 12th grade down to the 1st grade, you still have to do the same thing to get out that you have to do in 1964-65. The Court: Now, that’s what Bush and the Au gustus cases were dealing with! Mr. Hollowell: That is correct, yes sir. The Court: The first grader in that area, at that stage! Mr. Hollowed: Right, sir. And may I say, in Au gustus, Your Honor, there was this statement: 264 Plaintiffs’ Argument “There cannot be full compliance with the Su preme Court’s requirements to desegregate until all dual school districts based on race are eliminated.” And the testimony here, Your Honor, says that “We are going to continue to keep the dual racial lines.” They say “We’re going to do whatever the Court says” but they aren’t doing anything to re move the dual racial lines. All children will be reassigned to the same schools that they are now attending, unless and until they seek to transfer out, unless they are coming into the school system for the first time. This is as I understand the plan and, if one is coming into the school system for the first time and in the 12th grade only, not any other grade, he has the opportunity to apply for any school. This was what was said by one, but actually, in contemplation of the manner in which the plan would be adminis tered, I gleaned from the testimony that even that person would first have to go to one of the Negro high schools, and then make an application to the Superintendent, pursuant to the administrative plan of procedure, which has been promulgated and has been tendered into evidence here, before even he can go. So, that we have—• The Court: You think the plan is a little unclear as to that1? Mr. Hollowell: As to that point, there is some variance in the testimony, as against the plan itself, as I understand it. The Court: But as the desegregation comes down, that privilege would attach to each desegregated class, would it not! 265 Plaintiffs’ Argument Mr. Hollowell: Not under the Plan, not under the Plan, sir. Under the Plan, even next year—and when I say next year now, Tour Honor, I ’m not re ferring to ’64-65 but to the subsequent year— The Court: I see. Mr. Hollowell: —’65-66, when the next two grades would become involved—any person wanting to trans fer into the 10th and 11th grades in that year would have to make application. At the same time, any person wanting to transfer into the 12th grade would still have to make an application in the school at which he was, presuming he had not already trans ferred, you see, and had been going to Ballard- Hudson or to Appling, would have to make the same application to transfer that the person who would be in the 12th grade as of 1964-65 would have to make. So that, all we have is a transfer plan, pure and simple, and this is what I think the Court meant when it was addressing itself to “with the fanfare of trumpets”. There has been a lot of testimony and a lot of fanfare about a desegregation plan, whereas there is no desegregation plan at all. There is a transfer plan designed to maintain the same racial zone lines. I use the word “zone” in quotation. The same area school lines, if you will; and to delay a true process of desegregation for as long as possible and there would never be any under this system, because the only way a child can get over there is that he has to effect a transfer. Now, in the 6th Circuit, Your Honor and in the 4th Circuit, it says “Pupil Placement Plans super imposed upon biracial school structures have been similarly discarded.” This was in Jones v. School 266 Plaintiffs’ Argument Board, City of Alexandria, at 278 F. 2nd 72, at 76, which was Fourth Circuit ’60 case; and Green v. School Board City of Roanoke, 304 F. 2nd 118, Fourth Circuit, which is a ’62 case. And may I say that in Northcross (302 F. 2d 819), this language was used, Your Honor, and I think this can form the basis for a consideration in this case. It says: “Minimal requirements for non-racial schools are geographic zoning, according to the capacity and facilities of the buildings and admission to a school according to residence as a matter of right.” This is from Northcross. And then it goes on and says: “Obviously, the maintenance of a dual system of attendance areas, based on race, offends the consti tutional rights of the plaintiffs and others similarly situated and cannot be tolerated”, and here again, it cites Jones v. School Board of the City of Alex andria. And then, the Court went on and concluded in this manner: “Negro children cannot be required to apply for that which they are entitled to as a matter of right.” In other words, they are removing the burden from the child. “There must be a disestab lishment of the zone lines and there must be some other criteria set up for the basis of the admission of these students, but minimally the school zone lines would have to be removed, and an individual would be able to attend on the basis of capacity of the school and of the facilities there and of proximity to the school. The Court says this is minimal. 267 Plaintiffs’ Argument The Court went on to say this, Your Honor: “Any pupil through both parents may request a transfer”, talking about this case, “but in the final analysis it is up to the school board to grant or to reject it.” And that’s what we have here. Anyone can make the application for the transfer but in the final analysis, it is still up to the School Board, it’s up to the Superintendent, whether or not he can be trans ferred. It says: “Although an appeal may be taken to the courts, it would be an expensive and long drawn out procedure with little freedom of action on the part of the Court. In determining request for transfer, the Board may apply criteria heretofore never men tioned.” Now there, of course, they had a much broader group of criteria than what have been testified to here. It says, “None of these criteria are based on race”, and, of course, in this case none of them are based on race. “But in the application of them, one or more could always be found which could be ap plied to a Negro. The denial of the transfer referred to, the significance of the practical application of the transfer provisions of the law”—and we say the same thing here, that we don’t know to what extent these criteria will be brought into play. The Plan says that we will follow that which is shown on page 104 of the 1963-64 catalogue, which has been made a part of the record here. This in supplement to the standards which we shall set in the Plan, and the Plan would seem to say that an individual must first —at least the evidence in the interpretation of the plan—says we must first look at his eligibility, and 268 Plaintiffs’ Argument then we look at the availability; that is, how can he get to school? At the same time they show you that right now an individual who lives in Pleasant Hill has to go 5 miles approximately to get to school at Appling, when he lives within a mile of Lanier or of Miller; and nothing is being done to remove that, except giving a senior student an opportunity to transfer out. Now, Your Honor, the only thing I can see that they have done in this case, the Defendants, as I said, have tried to show the Court why it should go slow, tried to show the Court why the Court ought to let this plan proceed as it has been published here, this transfer plan. And I submit, Your Honor, that here is a Board which admittedly has had its eye glued upon the situation of the desegregation of the public schools in this City and County for the last 10 years. This is a Board which is a continuing board. Therefore, it does not have all of the changes that would be inherent in the average board. This is a Board which has had on it at least two lawyers—I ’ll change that—two judges and two law yers ; so, for all intents and purposes, there has been a minimum of four lawyers on this Board, astute and able men, plus having a very able coun sel for the Board. So, let’s say for all intents and purposes there have been at least five lawyers on that Board, one of whom has been at a law school. Certainly it is not unreasonable to assume that, with all of the knowledge and all of the discussion that this Board must have had, could have had, and should have had, that these problems were problems which they were considering all of this time. 269 Plaintiffs’ Argument I think it is most reasonable to assume that they have worked upon it and that these matters have been dealt with almost ad infinitum; and that coming from 1954 and ’55 up to now does not put a board, for the first time now starting on a process of de segregation, when they even took some steps them selves to remove what appeared might be a barrier after seemingly all of the other barriers—these are State barriers—had been removed, still voted to not do anything about it. I would submit that in that kind of circumstance there would need to be, No. 1, a fast moving along with the plan; and No. 2, an injunction to enjoin them from continuing along the process that they have been pursuing. Now, I think, Your Honor, in Watson, with which Your Honor, I know, is also familiar, Watson v. City of Memphis, 373 U. S. 526, Mr. Justice Goldberg made it, I believe, eminently clear, Your Honor, that we are not in the same kind of situation that we w'ere in, say back in ’54 or ’5, ’6, ’7 and ’8; and in the majority opinion, he said this: And I think it is important for the consideration of this Court in making its determination as to how fast is fast and how slow is slow, and whether or not an injunc tion should issue. Mr. Goldberg said this: “ . . . in the second Brown decision, which con templated the possible need of some limited delay in effecting total desegregation of public schools, must be considered . . . in light of the significant fact that the governing constitutional principles no longer bear the imprint of newly enunciated doc trine.” Not only has the doctrine been long ago enunciated, Your Honor, but this is a group which has had right 270 Plaintiffs’ Argument close to it all of the time the facility for the making of the interpretation of these different interpreta tions as they have come down from the various courts; and it would be logical to presume that they did. Then, he went on to say: “We cannot ignore the passage of a substantial period of time since the original declaration of the manifest unconstitution ality of racial practices such as are here challenged” in Watson. He said, “The repeated and numerous decisions giving notice of such illegality.” And we say that they have had this notice for a long time, Your Honor. “ . . . and the many inter vening opportunities heretofore available to attain the equality of treatment which the Fourteenth Amendment commands the States to achieve.” Then, he said: “These factors must inevitably and substantially temper the present import of such broad policy considerations as may have underlain, even in part, the form of decree ultimately framed in the Brown case.” And he concluded with this: He said: “Given the extended time which has elapsed, it is far from clear that the mandate of the second Brown decision requiring that desegregation proceed with ‘all deliberate speed’ would today be fully satisfied by types of plans or programs for desegregation of public educational facilities which eight years ago might have been deemed sufficient.” Now, it is 10 years, Your Honor, be 10 in ’65. He said: “Brown never contemplated that the con cept of ‘deliberate speed’ would countenance in definite delay in elimination of racial barriers in schools.” 271 Plaintiffs’ Argument And I think that this is the guide light, Your Honor. The. Court : What, did they actually do in that case? Mr. Hollowell: In this case they sent the case back, Your Honor, and told them, they sent it back for further action on the part of the trial court, the lower court, not inconsistent with this decision, as I understand i t ; and I don’t know exactly what has ultimately been done in this case. It might be of interest to know, and I am sure Your Honor is thinking about it, what the status of the Atlanta School Case is. The Court: It comes up today or tomorrow, doesn’t it? Mr. Hollowell: Sir?. The Court: It comes up today or tomorrow, I believe. Mr. Hollowed: Well, actually, tomorrow is the day that we are supposed to have before the Court any additional information or evidence. Actually, the case was argued on the 30th or rather the 31st-— supposed to have been the 30th but they argued the Prince Edward County case on the 30th and we didn’t get on until the 31st,. There was something of the kind of thing that is existing here that took place in that case. I talked to Mr. Lattimer actually even before we left the courtroom and I ’ve talked with him since we’ve been back in Atlanta on that case. Originally, there was still the zone lines and there was still the requirement .for application for transfer. How ever, different from this plan. In.that plan,, once the grade was opened, the Court ruled that you did not 272 Plaintiffs’ Argument have to reapply for transfer within those grades, that you can make an initial application to attend in those grades that have already come under the desegrega tion insofar as transfer had brought it about. We do not even have that here. And this was the status of the record. But then, when Mr. Lattimer wrote his brief— The Court: What is the difference in making an application for a transfer and in making an applica tion for admission! Mr. Hollowell: Well, the difference is this, that in one you are reassigned to the school that you have been going to, which school was controlled by the racially zoned lines, whereas once the trans fer plan or pupil placement plan had gone through that grade, a person in that grade would no longer have to make an application from the school to which he had already been going, but could actually make an application in the particular school that he wanted to attend. The Court: Well, the plan here is to go to the Superintendent’s office and make that application. Mr. Hollowell: Yes sir, but the plan also says that you will go to, you will be assigned to the school that you have been attending, all students. The Court: Well, isn’t that just an assumption that he’s going to stay where he is, unless he goes to the Superintendent’s office and makes an applica tion for a change! Mr. Hollowell: No sir—excuse me—no sir. The plan says this is what the situation will be. It says: “Pupils will register for new term at the school which they last attended.” This is what the plan says on page 5. And there is nothing in the plan or in the testimony to change that; nothing, sir. And 273 Plaintiffs’ Argument this is the reason why I say this is an absolute trans fer plan, which makes for any desegregation only by virtue of the fact that an individual has accepted the onus which has been placed upon by the Board of Education and makes application to transfer—after once registering at the particular school that he had gone to the year prior thereto. The Court: You think the registration would pre cede the application for transfer under this Plan? Mr. Hollowell: Yes sir, very definitely, sir, very definitely. The Court: Very well. Mr. Hollowell: And I say that that is a little dif ferent from the other plan. But in the Calhoun v. Latimer case, when they got to the point of writing the brief, Mr. Latimer said in the brief, although the record didn’t show it, that “we are now proceeding on the standard of proximity” ; and then, when we got into court he took another step, and said that “This is what we are doing.” He said “Not only are we going on the basis of proximity, we’re going on the basis also of capacity.” And so this is, when you read that the Chief Jus tice and other of the Associate Justices said that they were confused, the confusion came about by the record showing one thing, the brief showing another, and the argument showing a third. And so, the Court said—wed, he asked, Mr. Latimer, he said “Mr. Latimer”—this was the Chief Justice speaking—he said, “Do you have this anywhere in the record?” And the counsel said, “Why, yes sir.” He said, “Wed, now the Court is confused and I want you to bring us, we’ll give you fifteen (15) days to bring us any additional evidence, not argument”—and he specified “not argument but evidence.” 274 Plaintiffs’ Argument And I might say that I have checked the minutes myself and I—well, I shudder just a little bit as to what some of the remarks are going to be by the Chief Justice; but I only bring this case in because I know that Your Honor would want to know, “Well, what is happening in that case”, which is also pend ing, and which has had a plan somewhat similar, which plan has been in operation for a matter of 3 or 4 years; and the Court is now considering it. The Court: How did— Mr. Hollowed: I think it is a little different— excuse me, sir. The Court: How did the Atlanta plan treat the first grade when they get down to it? Mr. Hollowell: When we get to the first grade, then that is the first time that in that grade you would be able to apply for, directly to the first grade in the school that would be nearest to you, presuming that there is a capacity and a proximity in the situation. The Court: Hid the Atlanta Plan so specify? I ’ve forgotten. Mr. Hollowed: The plan made no specification on this at all. This came about as a matter of inter pretation, not as a matter of the plan actually speci fying it as such. With that, Your Honor— The Court: Wed, “interpretation”, by the Court or those who were administering it? Mr. Hollowed: Ultimately an announcement to this effect in the process of interrogation during the several hearings that were held over a period of time. This is as it came about. There was no inter pretation of it within the plan, saying that when it gets to the first grade, this will be the order. 275 Defendants’ Responsive Argument The Court: Of course, they haven’t got there yet. Mr. Hollowell: They have not got there. The Court: Are they close to it? Mr. Hollowell: They are only at the point this year where the feeder system takes hold. They have run the gamut of the high schools and the feeder sys tem takes hold in furnishing all of the schools with students coming from the—they don’t have many junior highs, mostly it’s 8 through 12 that constitutes a high school there, as distinguished from having maybe 7, 8 and 9th grades being junior high schools. I believe, sir, with that we would conclude, with the respectful request that this plan not be accepted, that the injunction issue, and that this Board be ordered to make a real compliance with the prayers of the Plaintiffs and the order which has already been entered by this Court. Thank you. The Court: Let me check two citations. You men tioned a Fourth Circuit case and a Sixth, I think, 278 F. 2nd 72. Mr. Jones: 76,1 believe, Mr. Hollowell: 278 F. 2nd 72, at page 76. The Court: And the other one is 304 F. 2nd 118? Mr. Hollowell: Yes sir. That’s Fourth Circuit, 1962, That’s Green v. School Board of City of Roa noke. The Court: All right, Mr. Jones, you have your option; you have 30 minutes or you may— Mr. Jones: I will exercise the option, if Your Honor please, of proceeding as we previously sug gested and presenting a brief by next Monday. I would like at this time merely to correct one element of confusion, which I think exists and that I might be helpful in. I t’s difficult to use language which means the same thing to everybody. As to how 276 Defendants’ Responsive Argument counsel interprets certain portions of our plan, I ’m unable to say, but the facts are that this question of registering at a school means that in September of 1964, when the school opens, the student will go to the same school which he previously attended to then register and commence his school year, unless he has previously filed a transfer request and which has been acted upon. There’s some confusion, of course, by using the term “registration” but certainly, it was never at any time contemplated that, before a person could go to the Superintendent’s office, he had to register for the following year at his old school and then come back to the Superintendent, but it would be simply a single process. The Court: And how about a newcomer who moves into town ? Mr. Jones: A newcomer, the plan was intended to state, and I think does state, though I may be mis taken, but it certainly was intended to state that any person entering the school, the system, in the 12th grade, for the first time, can choose his school, subject to the tests and the factors. He does not have to register anywhere except at the school which he chooses to register at. The Court: All right, how about if he comes in during the year 1965-66, would that apply to the 11th grade? Mr. Jones: That would apply to the 10th and 11th grades at that time and also to the 12th. The Court: That’s right. Mr. Jones: However broad it may be as applied to the 12th, it continues that broad all the time there after and picks up the other grades later on. 277 Defendants’ Responsive Argument I just didn’t want to leave the Court or counsel under any confusion as to what we were trying to do. The Court: That’s the way I construed it. Mr. Jones: And if we haven’t properly expressed, obviously, we would like to make it a proper expres sion. The Court: And I imagine you will deal with the Bush ease and the Augustus cases in your brief? Mr. Jones: Yes sir, and with several others. The Court: All right. That leaves us then— Now, Mr. Hollow ell, you may file or not file a brief by Monday, if you like; but then the record will be ready by Monday. Mr. Hollowell: Yes sir. The Court: Mr. Jones’ brief will be in by Monday, and any reply brief be in by the following Thursday. Mr. Hollowell: Thank you, sir. The Court: I wish to congratulate you gentlemen upon the high plane, if I may use that word, upon which you have prepared and presented this im portant case. Mr. Jones: Thank you, sir. H earing R ecessed : 12:35 PM— A pril 14, 1963 Foregoing transcript certified to be true and correct rec ord of proceedings in above captioned ease. This April 17, 1964 /s / (Signature Illegible) Official IT. S. Court Reporter Middle District of Georgia (Seal) 278 O pin ion and O rd er o f A pril 2 7 , 1 9 6 4 [ captiost om itted] B ootle, District Judge: For determination now is the question whether the plan of desegregation submitted by the Board of Public Educa tion and Orphanage for Bibb County is legally sufficient and acceptable. In August, 1963, plaintiffs filed their petition on behalf of themselves and others similarly situated against the Board, its individual members, and its superintendent. By amendment, all defendants, except the Board, were elimi nated. The complaint alleges, among other things, that the Board has been operating the public schools of Bibb County, Georgia on a completely segregated basis, including the assignment of pupils, teachers, principals, and other pro fessional personnel, as well as in the use of bus transporta tion and the conduct of curricula and extra-curricular activi ties and school programs. The complaint further alleges that all budgets and other funds are appropriated and expended by defendant separately for Negro and white schools. Plaintiffs pray that defendant be enjoined from: “(a) continuing to operate a dual school system in Bibb County, Georgia, based wholly upon the race and color of the children attending school in Bibb County; “(b) continuing to assign children to school in Bibb County on the basis of race and color; “ (c) continuing to assign teachers, principals, super visors, and other professional school personnel to the schools of Bibb County on the basis of race and color of the personnel to be assigned and the race and color 279 Opinion and Order of April 27, 1964 of the children attending the particular school to which assignment is made; “ (d) continuing to designate certain schools as Negro schools and white schools; “ (e) continuing to appropriate funds, approve curricu lar and extra-curricular activities and other school programs which are limited to attendance on the basis of race or discriminatory on the basis of race; “ (f) continuing to construct schools which are to be limited to attendance by one or the other racial group; “ (g) making any other distinction based wholly upon race and color in the operation of the public school sys tem of Bibb County.” In the alternative, plaintiffs pray, “that this court direct defendants to submit a complete plan, within a period of time to be determined by this Court, for the reorganization of the entire school sys tem of Bibb County, Georgia, into a unitary non-racial system which shall include a plan for reassignment of all children presently attending the public schools of Bibb County on a non-racial basis and which will pro vide for the future assignment of children to school on a non-racial basis, the assignment of teachers, princi pals, supervisors and other professional school per sonnel on a non-racial basis, the elimination of racial designations as to schools, the elimination of all racial designation in the budgets, appropriations for school expenditures, and all plans for the construction of schools, and the elimination of racial restrictions on certain curricular and extra-curricular school activities, 280 Opinion and Order of April 27, 1964 and the elimination of any other racial distinction in the operation of the school system in Bibb County which is based wholly upon race and color.” By a consent pre-trial order the defendant has admitted that plaintiffs, as representatives of the class of minor Negro children in whose behalf they sue, are entitled in this proceeding to such order of this court as will adequately protect the rights, privileges and immunities of said class, taking into account the administrative and other problems of the Board incident to the granting of such protection, and by said order plaintiffs recognize that the Board should be allowed a reasonable period of time in bringing about the elimination of discrimination within the equal pro tection mandates of the Constitution. The said pre-trial order directed the Board to make a prompt and reasonable start toward the effectuation of the transition to a racially non-discriminatory school sys tem, and to present to the court a complete plan adopted by the Board designed to bring about full compliance with said order which plan should provide for a prompt and reasonable transition to a racially non-discriminatory school system. The Board’s plan was submitted on sched ule, and will be later examined after considering generally the Bibb County School System and some of the obstacles which have delayed desegregation in Bibb County. The Board operates the public school system throughout the entire area of Bibb County with its population of ap proximately 140,000. There is no other public school system for any portion of the County. The Board is self-perpetuat ing in that it has power to fill vacancies in the Board in whatever manner caused. It was created by a special act of the Legislature of Georgia approved August 23, 1872. 281 O pin ion and O rder o f A p r i l 27, 1964 It consists of twelve members, plus four ex-officio mem bers, namely, the two Superior Court Judges resident in the County, the Ordinary of the County, and the Mayor of the City of Macon. These members serve without finan cial remuneration,1 and through the years the Board has attracted to its membership only outstanding citizens in the community, men who are among the leaders in business, civic, public and cultural affairs. The Board has succeeded in its determined and dedicated efforts to provide for all of the children of the County, regardless of race or color, the best education possible. The system has a student enrollment of approximately 37,000, about 63% or 23,000 white and 37% or 13,000 Negro. The high school enrollment is about 8,000 for whites, and 4,000 for Negroes, leaving about 15,000 whites and 9,000 Negroes in the primary and elementary grades. Since 1924, except for Dudley-Hughes High School, white high school students have been segregated according to sex. There are two senior high schools for white boys, Lanier and Willingham, and two senior high schools for white girls, Miller and McEvoy. A fifth high school, Dudley- Hughes, is for both white boys and white girls. Dudley- Hughes is emphasized primarily, but not exclusively, for those students who do not contemplate going to college. It also has an adult vocational program which is already admitting Negroes. There are three junior high schools for whites, Lanier Junior and Willingham Junior for boys, and Miller Junior for girls. Neither McEvoy nor Dudley- Hughes is separated as to junior and senior divisions, but, of course, have all of the grades—8, 9, 10, 11 and 12. For the Negroes there are two senior high schools, Ballard-Hudson Senior and Appling, and one junior high 1 The Board commendably did not prove or mention this fact but it is a fact of common knowledge. 282 Opinion and Order o f April 27, 1964 school, Ballard-Hudson Junior. Like McEvoy and Dudley- Hughes, Appling is not separated as to junior and senior divisions, having all grades—8 through 12, as a single organizational school system. For schools heretofore classified as white a new junior high school is being planned for McEvoy and a new junior high school is being planned for Willingham, it being con templated that the present Willingham Junior facilities will become a part of the present Willingham Senior. In the early construction stage are two new high schools on the Upper River Road to relieve the overcrowded condi tions at Lanier Senior and Miller Senior. For schools heretofore classified as Negro a contract has been let for a new Ballard-Hudson, 40 room junior high school, it being contemplated that the present Ballard- Hudson Junior facilities, as at Willingham, will become a part of the present Ballard-Hudson Senior High School. In the planning stages is a new junior high school for Appling of 25 to 30 classrooms. All of the schools are terribly overcrowded, the white schools being just as overcrowded as are the Negro schools. The Board’s charter enjoined upon it two duties with re spect to race. Section 2 conferred upon it the power to establish schools “provided . . . that said schools shall be so established as to extend impartially the benefits of the same to white and colored children.” That mandate has been observed. The facilities and equipment of Negro schools are at least equal to, and, in some instances, better than, the facilities and equipment of the white schools. Nor is there any difference in application of the teachers’ rate of pay as between the teachers in the Negro and white schools. Actually, the average Negro teacher is com- 283 O pin ion and O rder o f A p r i l 27, 1964 pensated in greater amount than the average white teacher. This results from their superior accreditation and longer service. The other mandate of the Board’s charter is its Section 5, which reads as follows: “That the said Board shall establish distinct and sepa rate schools and orphan homes for white and colored children, and shall not, in any event, place children of different colors in the same school or orphan home.” The Board has also complied with that mandate. This charter provision accounts to some extent for the fact that the process of desegregation is just beginning in the schools of Bibb County. Of course, prior to the Brown decision of 1954 no one ever questioned the legality or binding effect of this charter provision. The statutes of the State of Georgia were in accord therewith. On December 9, 1954, after the first decision in Brown, .May 17, 1954, and before the implementing Brown decision of May 31, 1955, the Board received a petition signed by 42 persons as parents of Negro children entitled to attend Bibb County schools calling attention to the Brown decision, and calling upon the Board to take immediate steps to reorganize the public ■schools in accordance therewith and tendering the services of the Macon branch of the N. A. A. C. P. in the implementa tion of a plan of desegregation. The Board considered that petition as premature since it was then known that an implementing decision of the Court was to follow. On August 25, 1955, after the implementing decision, the Board received a second petition signed by 13 parents suggest ing that the Board was duty bound to take immediate con crete steps leading to early elimination of segregation and on September 6, 1955, the Board received a letter from 284 O pin ion and O rd er o f A p r i l 27, 1964 some parents requesting an answer in the nature of a com mitment as to the Board’s concern with the matters con tained in the letter and in said petition. The Board there upon appointed a committee and, on October 13, 1955, received a report from that committee, in part, as follows: “That court decision specifically states that as to the ‘varied local school problems, school authorities have the primary responsibility for elucidating, as sessing and solving these problems.’ It further pro vides that consideration shall be given to ‘problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel # * and revision of local laws and regulations which may be necessary.’ “Of course, for some months (and prior to the filing of any petition) the members of this Board have con cerned themselves over the situation referred to, and at the present time this committee is charged with the specific task of investigation and report; but in our considered judgment any commitment by this Board at this time, or at any time before completion of such study of the overall situation as this Board may find necessary, would be inappropriate, unwise and en tirely out of harmony with the intent of the Supreme Court decision. “This being the first meeting of the Board since the appointment of this committee, we wish to report at this time that it is the opinion of the committee that to properly fulfill the assignment given it by the Board and to cover all of the complexities and ramifica tions involved will require an amount of time, effort and study, the extent of which we cannot presently appraise. 285 O pin ion and O rder o f A p r i l 27, 1964 “Before this committee proceeds further toward the performance of the task assigned, we felt it proper to submit this preliminary report.” The Supreme Court, in the second Brown decision, ac curately foresaw that “to effectuate this interest [of Negro children] may call for elimination of a variety of obstacles in making the transition to school systems operated in ac cordance with the constitutional principles set forth in our May 17, 1954 decision” and that among these obstacles was the “revision of local laws and regulations which may be necessary in solving the foregoing problems.” Those prob lems were particularly acute in Georgia. Several Georgia statutes had to be revised or repealed before desegrega tion could be satisfactorily accomplished. As the statutes were statewide, the problems were statewide. The show down came in Atlanta. There, in the case of Calhoun v. Members of Board of Education, City of Atlanta, in Judge Hooper’s order of June 16, 1959, 4 Race Relations Re porter, No. 3, pp. 576, 580, it was provided that the plan to be submitted by the Board of Education might be sub mitted “subject to approval thereof by the Georgia Legis lature” and that the court “would allow sufficient time for the Georgia Legislature to act upon the same.” In the same case, in the order dated December 30, 1959, the court called attention to the existence of certain Georgia statutes which would mean that the mixing of races in Georgia schools would mean that all financial aid from the State would be cut off, adding that for the court to order the Atlanta Public Schools to desegregate at that time would be equivalent to ordering them to close. The court then expressed the feeling that the people of Georgia, through their chosen representatives in the Legislature, should be allowed to make the important decision of whether they 286 Opinion and Order of April 27, 1964 ■would prefer the closing of their schools on one hand, to the gradual desegregation on the other hand. 5 Race Relations Reporter, No. 1, page 56 at 64. The Legislature met in January, I960; adjourned without enacting any laws permitting such plan to be put into effect but adopted a resolution appointing a committee to study the entire question and to file a report on or before May 1, 1960. The Legislature repealed the interfering legislation in early 1961, and the Atlanta plan became effective May 1, 1961 for the school term beginning in September, 1961. Meanwhile, efforts were being made by, and on behalf of, certain Negro citizens in Macon to induce the defendant Board to proceed with desegregation. On February 23, 1961, the Macon Council of Human Relations, an inter racial organization, wrote the President of the Board, and apparently to other public officials generally, offering its assistance in the period of transition. The President of the Board acknowledged the letter, saying: “This will be referred to the proper committee for study and if we need your help we will call on you.” The Board appointed a special committee on March 17, 1961, with Mr. Wallace Miller, Jr. as Chairman. That committee concluded that the President’s acknowledgment of the letter was sufficient. On March 8, 1963, 7 Negro citizens by letter requested the privilege of appearing before the Board for the purpose of airing certain grievances pertaining to public education in Macon and Bibb County. The President replied by let ter of March 12th advising that the agenda for the up coming meeting of March 14th was already set, but that if they desired to appear the business would be rearranged so as to allow them five minutes, but suggested further the procedure of presenting the matters in writing so that the matter could be assigned to the proper committee for recom- 287 O pin ion and O rder o f A p r i l 27, 1964 mendation to the Board. At the meeting on March 14th, several of the 7 persons who had signed the letter appeared and their spokesman, Mr. William P. Randall, made a brief statement to the effect that they had hoped they might be able to discuss some of the reactions in the Negro com munity relative to the present status of the school system. He expressed his appreciation of the suggestion that they reduce the matter to writing for referral to a proper com mittee and respectfully reminded the Board that they had tried that procedure nine years ago when a committee had been appointed, which committee they feared had been the graveyard for the petition, as they had heard nothing from the committee to that moment. He suggested also that to have delayed their appearance until the next meet ing of the Board might have seriously restricted their ef forts to have this matter settled by the next September term of school. This letter of March 8th had been referred to Mr. Miller’s committee, and, on March 14th, the Presi dent of the Board appointed the Rules and Regulations Committee, headed by Mr. William A. Fielding, to serve jointly with Mr. Miller’s committee. Since the hearing- before the Board was brief, these two committees suggested and arranged a further hearing with Mr. Randall’s group which was held on April 8, 1963, when Mr. Randall and five or six others met with, the members of the two committees. The proceedings of that meeting were preserved by a tape recording, but were not introduced in evidence. The committees of the Board, and particularly the several lawyer members thereof, saw that even with the Georgia statutes repealed and out of the way there remained Sec tion 5 of the defendant’s charter. Although it was be coming more and more obvious that no state could order the operation of schools with enforced racial segregation 288 Opinion mid Order o f April 27, 1964 therein, the question remained whether this particular Board was authorized by its charter to operate any school system unless it complied with all of the terms of its charter, including Section 5. In other words, when the Brown decision and its progeny invalidated Section 5 did the defendant Board have any charter left, or would some other organization have to take over the operation of the Bibb County Schools. Mr. Miller’s special committee re quested of the Board’s counsel a legal opinion on this question. On April 13, 1963, a four-page opinion was re ceived, stating in part as follows: “The gravity of the question cannot be overstated. If the Board acts in violation of Section 5, either volun tarily or under federal court order, by placing white and colored children in the same school it might there by forfeit its charter, completely destroy itself, and leave no other local state agency to act in its place, thus disrupting the whole .school system in Bibb County. This could follow whether the Board acts voluntarily or under the decree of a federal court. That is, regard less of the construction placed on the charter by a federal court the state would not thereby be deprived of its right to forfeit or revoke the charter. “In addition to the effect on the Board’s charter, possibly voiding its powers to receive and expend school funds, and affecting its titles, the individual members of the Board, and the Board’s agents and employees, would find themselves acting at their in dividual perils.” Thereafter, on April 24, 1963, the Board resolved to peti tion the Superior Court of Bibb County, Georgia for a de claratory judgment on the questions involved. The suit was 289 Opinion and Order of April 27, 1964 filed and was prosecuted diligently and resulted in a de claratory judgment rendered in July, 1963, in effect de claring Section 5 of the charter invalid, and leaving all of the remainder of the charter intact. Indicative of the pur pose of the filing of the suit for declaratory judgment is the following paragraph from the brief of the Board’s counsel in support of that suit. “We wish to make it clear that the Bibb County Board of Education has no desire to shirk or evade or to surrender either its corporate responsibilities or its corporate powers. It is the objective of this petition to obtain a decision by this court under which plaintiff can lawfully under its charter provide a sys tem of public schools for both white and colored chil dren in Bibb County notwithstanding a part thereof may be invalid which requires that separate and dis tinct schools shall be provided for the different races.” After the declaratory judgment was obtained the two committees recommended to the Board a three and one-half page resolution which wTa.s adopted on July 30, 1963 by the Board by the vote of a majority of its members, the vote not being unanimous. The resolution records the views of a majority of the Board members to the following effect: the wise judgment of the founders of the Board in direct ing separate schools was sound in 1872 and is sound today; the Supreme Court has declared that forced separation be cause of race in public schools is unconstitutional, but no court has ruled that any school system operated voluntarily on a basis of separation of the races is unconstitutional, un desirable or repugnant to any principle or rule of law, society or human relations; the Board realizes that all members of the federal judicial system are required by law and precedent to adhere to the decisions of the Supreme 290 Opinion and Order of April 27, 1964 Court; the Supreme Court has granted district courts lati tude in enforcing its judgments, if and when the matter is submitted to the district courts; the district courts are to determine what type operation of a public school system meets the requirements of the Supreme Court decisions under the peculiar circumstances of each particular case; if the Board were to make such a determination without the sanction and approval of the courts its validity and lasting effect would be as uncertain as the weather; without court sanction and approval any action taken by the Board would have no assurance of being effective tomorrow. The resolution then concluded with these four paragraphs: We reaffirm our sincere and deep conviction that integration of the races in the public schools of Bibb County will be detrimental to both the colored and white races, and the entire county. The responsibility for and consequences of any such action rests upon others than this Board. “We feel that the vast majority of both our colored and white citizens of Bibb County are satisfied with the present system of operation of our schools, and that it would be contrary to the wishes of such vast majority for this Board to make any change in its operation. We also feel that the public of Bibb County is en titled to know the position of its Board of Education in this matter. “ T h e r e e o r e , b e i t r e s o l v e d by the Board of Public Education and Orphanage for Bibb County that this Board continue its present system of operating its schools.” The Board knew, on July 30, 1963, when the above men tioned resolution was adopted that a suit for desegregation 291 O pin ion and O rder o f A p r i l 27, 1964 was in the offing. It came probably a little later than the Board expected, on August 14, 1963. The majority of the Board are not to be condemned for their frankness. Our law does not seek to control men’s thinking absent intention on their part to do that which is unlawful. Independence of thought is encouraged, and free dom of speech is guaranteed. For the purposes of this case it is sufficient that all of the members of the Board recognize that they are bound by the law and are willing to follow it in good faith, though some of them, as they have a right to do, question its wis dom. This recognition and this willingness on their part are implicit in the above summarized resolution, and are explicit in the testimony of the Board’s President, Vice- President, Committee Chairman, Superintendent and his Special Assistant, all of whom testified in this case. They are explicit also in the pleadings in this case and in the briefs and arguments filed by the Board’s counsel. Coming now to the plan, we find that its preface of three and one-half pages recites, among other things, that the authority to designate the school or schools to be attended is vested in the Superintendent and that he is generally guided by recognized residential areas in placing children in grammar schools, and children progressing from a gram mar school to a high school are generally placed in high school on the basis of the grammar school from which they graduated and that “it is the eventual plan of the Board to establish a single unitary system of residential areas for school placement, without distinction as to race, but [that] this cannot be accomplished immediately” ; that in its carefully considered opinion any plan submitted should be implemented gradually over a reasonable period of time and in progressive steps, starting at the 12th grade and thereafter extending at successive intervals to the 1st grade, 292 O pin ion and O rd er o f A p r i l 27, 1964 eventually including the entire system; that the vocational schools should be included and dealt with in the plan and that it is a part of the proposed plan that no applicant will be denied admission in the future to any vocational program under the control of the Board, or transfer from one program to another, solely because or his or her race. The plan, itself, consists of six paragraphs. Paragraph (1) leaves vested in the Superintendent the duty of desig nating schools to be attended. Paragraph (2) makes no immediate change in the identification of residential areas, but provides that procedures presently in effect will, from time to time, be reviewed and revised to provide more adequate opportunity for pupils or parents to express preferences whether upon entering the system for the first time or in respect to transfers and that such procedures will provide full implementation of the plan as set forth in paragraphs (4) and (6), and will be applied without dis tinction or discrimination because of race. Paragraph (3) provides that in acting upon pupil requests for original assignment or for transfers the Superintendent will take into account the factors “which presently guide him in the placement of pupils and those which are in accordance with sound and generally observed practices in the field of public school education throughout the country, with a view to the establishment, maintenance and operation of a public school system in Bibb County of the highest attainable caliber and quality for the benefit of all of the children of the county, and with a view toward the eventual elimination of com pulsory racial segregation in all grades within the system.” Paragraph (4) provides that the Board will establish a period beginning at a date to be announced following the date of the order approving this plan, (at the hearing coun sel for the Board expressed the hope that such beginning date may be May 1,1964), and ending thirty days thereafter 293 O pin ion and O rder o f A p r i l 27, 1964 as the period in which written applications will be received for transfers and reassignments from one school in the system to the 12th grade of another school in the system for the school year 1964-65, and will prepare and supply written forms for that purpose, together with a statement of the rules of procedure applicable thereto; that said forms and rules will set forth the information required to be fur nished with such applications and the time within which such applications will be evaluated and either approved or disapproved by the Superintendent ; that they will pro vide for written notice of the Superintendent’s action and will inform the applicant with respect to his or her rights to administrative review or appeal; that all such applica tions will be processed and acted upon without distinction based solely on race; and that pupils first entering the system in the 1964-65 school year in the 12th grade will be afforded without distinction based solely on race the oppor tunity to request original assignment to the school of their choice in accordance with presently established procedure. At the hearing of this case counsel for the Board presented the written forms and statement of rules and procedure above mentioned consisting of 12 pages in the aggregate, and these forms and rules show that they were prepared with care and are consistent with the avowed purpose of accomplishing desegregation in accordance with Constitu tional requirements. Paragraph (5) provides for the estab lishment by the Board of a system committee composed of 6 to 8 principals or other teaching or administrative per sonnel of the system, to consist of an equal number of white and Negro members as a recommendatory committee with which the Superintendent or other administrative personnel designated by the Superintendent will discuss and consider proposals, suggestions, complaints and other matters in volving the plan. Paragraph (6) is as follows: “This plan will be applied without distinction based on race in all 12th 294 Opinion and Order o f April 27, 1964 grades in the system for the school year 1964-65. It will thereafter be similarly applied in all 11th and 10th grades for 1965-66, all 9th grades for 1966-67, all 8th grades for 1967-68, all 7th grades for 1968-69, all 6th and 5th grades for 1969-70, all 4th grades for 1970-71, all 3rd and 2nd grades for 1971-72, and all 1st grades for 1972-73; being or becoming applicable without distinction on race for all grades in the system within nine school years beginning with the year 1964-65.” The plaintiffs have several objections to the plan, the chief objections, perhaps, being (1) that “the plan purports to permit 8 years for the total desegregation” and that this length of time “is entirely inconsistent with reason or neces sity, and is therefore objectionable”, and (2) that it is only a transfer plan. The first objection based upon the timing element is untenable. The Court of Appeals for the 5th Circuit in the case of Miller v. Barnes, ----- F. 2d ----- , February 27, 1964 wrote as follows: “Plans of desegregation at the rate of a grade a year have not been nullified. The plan to be adopted rests largely in the discretion of the trial court who is familiar with local problems and conditions. Not only are the ambitions and desires of the plaintiffs in a particular action to be considered, but the welfare of all students, Negro and White, is fundamental to a consideration of any proposed plan.” Of course, the present plan calls for faster action than a grade a year. It desegregates two grades in the year 1965- 66, two in the year 1969-70, and two in the year 1971-72. In the recent case of Calhoun v. Latimer, 321 F. 2d 302, 308 (5th Cir. June 17, 1963), the court said: 295 O pin ion and O rder o f A p r i l 27, 1964 “Gradualism in desegregation, if not the usual, is at least an accepted mode with the emphasis on getting the job of transition done.” The objection that it is only a transfer plan overlooks the plan’s ultimate objective and result. Of significance here are excerpts from the brief of the Board’s counsel filed in this case. These excerpts elucidate the plan. They are as follows: “As a ‘transition’ plan it is a transfer plan. In its ultimate goal it ceases to be a transition plan. We think this is well illustrated by a consideration of the precise questions which were dealt with in Bush (308 F. 2d 491), as we will later point out. “If there is any doubt we want to make the following things clear. In the initial year students now attending and registered in the 11th grade of any higii scnooi m the system will be afforded the right and ample oppor tunity immediately, while they are still registered in the 11th grade, to transfer for the 1964-65 school year to the 12th grade of another high school. Having so transferred they will then register in September oi 1964 in the school to which they have been transferred. If prior to September, 1964, they have not transferred to another school they will register in the school in which they previously attended. Even then, under the Board’s rules at page 104 of its Annual Report, but within the limitations of those rules, a student may request transfer during the 1964-65 year. Any student who enters the school system for the first time in or for the 12th grade may choose the school which he wishes to attend and will register initially at that school. All of this is entirely without distinction based 296 O-pinion and O rder o f A p r i l 27, 1964 on race. As is true of any student in the system this is subject to question of eligibility, availability of the facility, and the capacity of the school at which the student registers. In succeeding years as the plan be comes applicable to additional grades what we have said will continue to apply to the grade or grades already brought within the plan as well as to the addi tional grade or grades to be brought within the plan that year. No student entering the system for the first time in any grade to which the plan has become or is then to become effective will be required to register at any school designated on the basis of race. “Furthermore, when the plan becomes effective in the first grade, applicable to students entering the system in that grade, there is complete freedom of choice on the part of the student to select the school which he wishes to attend. This also will be subject to non- discriminatory factors based on eligibility, availability and capacity. Thereafter the plan will continue to be a transfer plan as to students who have previously entered the system and who have previously enrolled in grades higher than the first grade. However, it will no longer be a transfer plan as to the first grade, or as to the students who enter the first grade under the plan and as the first grade progresses through the system it will cease to be a transfer plan as to all students subsequently enrolling in the system.” We find and conclude that the plan is legally sufficient and acceptable. And so are the implementing forms and documents filed in connection therewith. The Board is hereby authorized and ordered to place said plan as so implemented into operation forthwith. The court makes no ruling at this time on the matter of the assignment of teachers, principals, supervisors, or other O pin ion and O rder o f A p r i l 27, 1964 professional school personnel. Questions raised by both sides as to that matter can be more appropriately con sidered by the Board and by the court if necessary at some future date. Similar deferment of consideration of this particular facet of the problem seems to have occurred in all but one of the reported cases. The plaintiffs do not need an injunction. They already have more than that. The solemn promises of the members of this stable Board made to this court through their coun sel and through the testimony of their officers are stronger than an injunction. The Board describes its role in this case not as that of a litigant but rather as that of a petitioner or supplicant to the court for guidance and direction in a delicate and difficult field. It seeks approval of this plan which it regards as one which under all of the circum stances is reasonably designed to recognize and afford to the plaintiffs, and to the class represented by them, the rights to which they are entitled, and at the same time to accomplish the Board’s primary objective of providing the highest possible quality of public education to all the chil dren of the County, Negro and white, alike. This being the Board’s attitude, and this its aim, no injunction is neces sary. Accordingly, the prayers for an injunction are denied. Of course, in the unlikely event that this court should be mistaken as to the strength and efficacy of these assurances, such fact would become apparent, and appropriate steps could be promptly taken, as this court is retaining juris diction of this entire case for such further proceedings and the entry of such further order or orders as in its judgment may become necessary or appropriate. This memorandum is intended to comply with the require ments of F. R,. Civ. P. 52. This 27th day of April, 1964. / s / W . A. B ootle United States District Judge Notice o f Appeal [ c a p t io n o m i t t e d ] Notice is hereby given that Shirley Bivins, James Bivins, Larry Bivins and Franklin Bivins, minors, by Hester L. Bivins, their mother and next friend, and Solomon Bouie, Glory Ann Bouie, and Dorothy Mae Bouie, minors, by Rev. Willie R. Bouie, their father and next friend, and Helen Goodrum, Lela Goodrum, Thomas Goodrum, John Goodrum and Jo Ann Goodrum, minors, by Thomas Goodrum, their father and next friend, and Patricia Ann Harper, minor, by Abe Harper, her father and next friend, and Charlie Bell Williams, Sara Jeanette Williams and Tommie Lee Williams, minors, by Mrs. Yada D. Harris, their mother and next friend, and Alice Marie Hart, minor, by Mrs. Willie Mae Hart, her mother and next friend, Paul Hill, Jr., Clyne Hill, Bernestine Hill and Lucy Mae Hudson, minors, by Inez Hill, their mother and next friend, and Carolyn Hol- ston, Melvin Holston, Lyre Holston, Maxine Holston, and Earnestine Holston, minors, by Henry Holston, their father and next friend, and Solomon Hughes, III, minor by Solo mon Hughes, Jr., his father and next friend, and Billy Joe Lewis, Harold Martin Lewis, Yvonne Dianne Lewis, Ray Charles Lewis and Estella Marie Lewis, minors by Mr. Ray Lewis, their father and next friend, and Merrit Johnson, Jr., and Pamela Sue Johnson, minors, by Merrit Johnson, their father and next friend, and Willie Howard, Jr., Delores Howard, and Randolph Howard, minors, by Ger trude Howard, their mother and next friend, and Delmarie McDow, minor, by Wyatt J. McDow, her father and next friend, and Lois Farmer, Larry Stewart, Maxine Stewart, Joe L. Stewart and Lolita Rutland, minors, by Dorothea Stewart, their mother and next friend, plaintiffs above named, hereby appeal to the United States Court of Appeals 299 Notice of Appeal for the Fifth Circuit, from the final order and judgment of the Honorable W. A. Bootle, United States District Judge, for the Middle District of Georgia, Macon Division, approv ing the defendant’s “Pupil Placement Plan,” said order being dated and entered in this action on April 27, 1964 and received by plaintiffs’ counsel April 28, 1964. This 25th day of May, 1964. [ s ig n a t u r e s o m it t e d ] 38 *