Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Petition for a Writ of Certiorari

    I n  t h e

£>uprrmr Court of tlfr Imtrti Stairs
October Term, 1959 

No. ..............

R obert W . K ell e y , et al.,
Petitioners,

B oard oe E d ucation  of t h e  C ity  of N a sh v il l e , 
D avidson  C o u n ty , T e n n e s s e e , et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Z. A lexander  L ooby

A von N . W il l ia m s , J r .
327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood  M arshall  
J ack  Green berg  

Suite 1790 
10 Columbus Circle 
New York 19, N. Y.

Counsel for Petitioners

E lwood H. C h is h o l m

C onstance  B aker  M otley  
J am es M. N abrit , III

Of counsel



TABLE OF CONTENTS
PAGE

Citations to Opinions Below......................................   1

Jurisdiction ................................................................  2

Question Presented ...................................................  2

Constitutional and Statutory Provisions Involved .. 3

Statement .................................................................... 3

Reasons for Granting the Writ ................................ 15
Summary of Reasons for Granting the Writ .... 15

I. The decision below approves a plan which denies
to petitioners an opportunity to ever obtain 
rights guaranteed by the Brown and Cooper 
decisions and therefore conflicts with those deci­
sions .................................................................... 17

II. Moreover, the record contains no justification 
for delay cognizable under decisions of this 
Court...................................................................  21

III. Contrary to the Brown and Cooper decisions 
no rational connection was demonstrated or 
suggested by respondents between the few prob­
lems mentioned which did not directly result 
from racial prejudice or hostility to desegrega­
tion, and the period of delay prescribed in the 
proposed plan to solve the problems of desegre­
gation ................................................................ 24

IV. The proposed plan contains racial standards 
for pupil transfer which perpetuate racial dis­
crimination within the school system ..............  30



11

V. The issues presented herein are of such high
importance as to require review by this Court.... 34

C o n c l u s io n ..................................................................  36

A p p e n d ix .....................................................................  37
Opinion of Court of Appeals ............................  37
Judgment of Court of Appeals ........................  81

T able op Cases

Aaron v. Cooper, 257 F. 2d 33, 37-38 (8th Cir. 1958) .. 26, 27 
Aaron v. Cooper, 143 F. Supp. 855 (E. D. Ark. 1956) .. 34
Allen v. County School Board of Prince Edward 

County, Va., 249 F. 2d 462 (4th Cir. 1957), cert, 
den. 355 U. S. 953 ................................................. . 27

Baltimore & Ohio RR Co. v. United States, 298 U. S.
349, 372 (1936)  .................................. .................. 26

Banks v. Izzard, Civ. No. 1236, W. D. Ark., Sep­
tember 1957 ............................................................  34

Barrows v. Jackson, 346 U. S. 249 ............................  32
Bolling v. Sharpe, 347 U. S. 497 ................................ 31
Brown v. Board of Education, 347 U. S. 483, 349 U. S.

294 ............................................ 17,19, 24,30, 31, 34, 35, 36
Buchanan v. Warley, 245 U. S. 60 ............................  27, 31
Bush v. Orleans Parish School Board, Civ. No. 3630,

E. D. La., July 15, 1959 ..........................................  35

City of Birmingham v. Monk, 185 F. 2d 859 (5th Cir.
1950) ......................................................................... 21

Cooper v. Aaron 358 U. S. 1 ..............17,19, 23, 27, 28, 30, 36

Doremus v. Board of Education of the Borough of 
Hawthorne, 342 U. S. 429 ....................................... 19

Ethyl G-asoline Corp. v. United States, 309 U. S. 436 32
Evans v. Buchanan, 172 F. Supp. 508 (D. Del. 1959) 35

PAGE



in

Feiner v. New York, 340 U. S. 315 (1951) ...... ..........  26

Garnett v. Oakley, Civ. No. 167, W. D. Ky., April
17, 1957 .................................................................... 34

Grimes v. Smith, Civ. No. 167, E. D. Ky., February
18, 1958 ....... '.................. ............. ...........................  35

Groves v. Board of Education of St. Mary’s County,
Md., 164 F. Supp. 621 (D. Md. 1958), affirmed 
Board of Education of St. Mary’s County v. Groves,
261 F. 2d 527 (4th Cir. 1958) ................................ 34

Hirabayashi v. United States, 320 U. S. 81 .............. 31

Jackson v. Eawdon, 235 F. 2d 93 (5th Cir. 1956) ......  27

Korematsu v. United States, 323 U. S. 214.............. 31

McLaurin v. Oklahoma State Regents, 339 U. S. 637 32
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ....... 33
Mitchell v. Pollack, Civ. No. 708, W. D. Ky., Feb­

ruary 8, 1957 ............................................................  35
Mitchell v. United States, 313 U. S. 80........................  33
Moore v. Board of Education of Harford County,

Md., 152 F. Supp. 114 (I). Md. 1957) aff’d sub nom.
Slade v. Board of Education of Harford County,
252 F. 2d 291 (4th Cir. 1958), cert, denied 257 
U. S. 906 .................................................................. 34

N. A. A. C. P. v. Alabama, 357 U. S. 449 .................  33
Napue v. Illinois,----- - U. S. ----- , 3 L. ed. 2d 1217

(1959) ................................ ....................................  26
Ng Fung Ho v. White, 259 U. S. 276, 284-285 (1922) 26
Niemotko v. Maryland, 340 U. S. 268 (1951) .............. 26
Nixon v. Herndon, 273 U. S. 536, 541 ........................  31
Norris v. Alabama, 294 U. S. 587 (1935) .................  26

Ohio Valley Water Co. v. Ben Avon Borough, 253 
U. S. 287 (1920) ................. ............. ..................... . 26

PAGE



1Y

Orleans Parish School Board v. Bush, 242 F. 2d 156,
166 (5th Cir. 1957), cert. den. 354 U. S. 921 ..........  26, 27

Pierce v. Cabel County, Civ. No.----- , S. D. W. Va.,
September 12, 1956 ........................    35

Pierre v. Louisiana, 306 U. S. 354 (1939) .................  26

Robinson y. Evans, Civ. No. 2643, S. D. Tex. un­
decided ......      35

Ross v. Petersen, Civ. No. 10444, S. I). Tex., un­
decided ...................................      35

School Board of the City of Charlottesville, Va. v.
Allen, 240 F. 2d 59 (4th Cir. 1956), cert. den. 353
U. S. 910 ................................................ ................. 27

Shedd v. Board of Education of Logan County, Civ.
No. 833, S. D. W. Va., April 11, 1956 ....................   34

Shelley v. Kraemer, 334 U. S. 1 .........    32
Spano v. U. S.,-----U. S .------, 3 L. ed. 2d 1265 (1959) 26
St. Joseph Stock Yards Co. v. United States, 298 

U. S. 38, 49 (1936) .............. ................................... 26

Tate v. City of Eufala, 165 F. Supp. 303 (M. D. Ala.
1958) ..............................    19

United States v. Crescent Amusement Co., 323 U. S.
173 ................. ...........................................................  32

Watts v. Indiana, 338 U. S. 49 (1949) ........ ................ 26
Willis v. Walker, 136 F. Supp. 177, 136 F. Supp. 181 

(W. D. Ky. 1955) ......................................   35

O t h e r  A u t h o r ity

Carmichael and James, The Louisville Story (1957) .. 35

PAGE



I n  t h e

Bnptm u  OJnurt of tin* Imtrft Status
October Term, 1959 

No................

R obert W . K elley , et al.,
Petitioners,

—  v. —

B oard of E ducation  op t h e  C ity  of N a sh v il l e , 
D avidson C o u n ty , T e n n e s s e e , et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Sixth Circuit, entered in the above-entitled case on 
June 17,1959.

Citations to Opinions Below

The several opinions by the United States District Court 
for the Middle District of Tennessee in this case have been 
reported as follows:

a. Opinion, March 28, 1956, reported at 139 F. Supp. 
578;

b. Memorandum Opinion, January 21, 1957, reported at 
2 Race Eel. Law R. 21 (R. 46a); 1

1 The abbreviation “R.” used herein refers to the record filed with 
this petition which consists of the printed appendices filed by the



2

c. Statement from the Bench, September 6, 1957, re­
ported at 2 Race Rel. Law R. 970 (R. 67a);

d. Opinion, February 18, 1958, reported at 159 F. Supp. 
272 (R. 88a);

e. Memorandum Opinion, June 19, 1958, reported at 3 
Race Rel. Law R. 652 (R. 236a).2

The opinion of the United States Court of Appeals for the 
Sixth Circuit, printed in the Appendix hereto, infra, pages 
37-80, has not been reported.

Jurisdiction

The judgment of the United States Court of Appeals for 
the Sixth Circuit was entered on June 17, 1959 (R. unnum­
bered pages following 66b) and is printed in the Appendix 
at page 81. The jurisdiction of this Court is invoked 
under Title 28, U. S. C., §1254(1). On September 10, 1959, 
Mr. Justice Stewart extended the time for filing this peti­
tion to and including October 15,1959.

Question Presented

Whether petitioners, Negro school children in Nash­
ville, Tennessee, have been deprived of rights conferred 
by the due process and equal protection clauses of the

parties in the court below and the proceedings in the court below. 
Record pages la-246a are contained in the appendix of appellants 
below, and pages lb-66b are contained in the appendix of appellees 
below.

2 Connected proceedings involving an injunction obtained by re­
spondents to restrain the unlawful acts of certain persons opposing 
desegregation in Nashville are reported at 2 Race Rel. Law R. 976, 
et seq. A statement of the Court from the Bench (on September 16, 
1957) is reported at 2 Race Rel. Law R. 980.



3

Fourteenth Amendment to the Constitution of the United 
States by the judgment of the court below, approving re­
spondent local school board’s plan which:

1. While permitting some desegregation for Negro 
children in years to come, effectively denied to petitioners 
and the class they represent—other Negro children then 
attending public schools—any enjoyment, present or future, 
of their rights recognized in the Brown and Cooper deci­
sions ;

2. Based this denial on the hostility of the community 
to the principle of desegregation set forth in the Brown 
case;

3. While the record merely suggests perhaps two factors 
other than hostility (the possible desirability of homog­
eneous grouping of students and teacher recruitment prob­
lems), made no showing whatsoever that any protracted 
period of years to cope with such matters was needed;

4. Explicitly recognized race as an absolute ground for 
the transfer of students between schools, thereby perpetu­
ating rather than eliminating racial discrimination.

Constitutional and Statutory Provisions Involved

This ease involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

The complaint was filed on September 23, 1955 in the 
United States District Court for the Middle District of 
Tennessee, Nashville Division, by petitioners, a group of 
Negro children then attending the public schools of the



4

City of Nashville, Tennessee, and their respective parents 
as next friends and individually, for themselves and for 
others similarly situated,3 against respondents, the Board 
of Education of the City of Nashville and its members, the 
Superintendent of Schools of the City of Nashville, and 
principals of several schools in the city school system (R. 
4a-13a). The complaint prayed for a declaratory judgment 
that certain laws of Tennessee which required the segre­
gation of white and Negro children in public schools vio­
lated the Fourteenth Amendment to the Constitution of 
the United States, and for an injunction restraining the 
respondents from excluding petitioners and others simi­
larly situated from public schools in the City of Nashville 
on account of their race (R. 12a).

The complaint invoked the jurisdiction of the District 
Court pursuant to 28 U. S. C. §§1331, 1343, and 42 U. S. C. 
§§1981, 1983 (R. 4a), requested the convening of a three- 
judge district court pursuant to 28 U. S. C. §§2281, 2284, 
and sought declaratory relief pursuant to 28 U. S. C. 
§§2201, 2202 (R. 4a-5a).

The allegations of the complaint briefly summarized 
are: that the State of Tennessee had declared public edu­
cation a state function and established within the state a 
system of free public education; that the respondents su­
pervised and controlled the free public schools of the City 
of Nashville as agents of the State of Tennessee; that 
the respondents had established and maintained in said 
City a number of public schools exclusively for the educa­
tion of white children and that all Negro children were 
excluded from these schools and required to attend certain 
schools maintained exclusively for Negro children; that the

3 Pursuant to Rule 23(a)(3) Federal Rules of Civil Procedure 
(R. 5a).



5

petitioners had sought admission to certain of the schools 
maintained for white children and had been denied ad­
mission thereto by respondents because of their race or 
color; that the action of respondents had been pursuant 
to and in reliance upon certain specified provisions of the 
Constitution and laws of the State of Tennessee which 
compelled racial segregation of public school children; 
and that enforcement of the aforesaid laws by respondents 
deprived petitioners and others similarly situated of rights 
protected by the Constitution and laws of the United States. 
Subsequently, two white children and their respective 
parents who had been denied admission to schools main­
tained exclusively for Negroes were added as parties- 
plaintiff, and the complaint was amended accordingly (R. 
57a).

Respondents’ answer admitted the jurisdiction of the 
District Court, admitted the allegations with respect to 
their supervision and control of the Nashville schools and 
the operation of racially segregated schools, admitted that 
petitioners were excluded from certain of the schools be­
cause of their race, and conceded the invalidity of the state 
laws requiring racial segregation in the schools (R. 14a- 
17a). Respondents asserted affirmatively that they in­
tended in good faith to implement the decision of the Su­
preme Court in the School Segregation Cases: that they 
had designated a committee to study the problem, which 
committee had submitted two progress reports, and that 
more time was needed to formulate a plan for compliance.

On March 28, 1956 the cause came before a three-judge 
district court on respondents’ motions to dissolve the three- 
judge court and for a continuance. The motion to dissolve 
was granted on the ground that the invalidity of the state 
constitutional and statutory provisions challenged was con­
ceded by respondents. A continuance was granted until the



6

October 1956 term upon respondents’ representations that 
they needed time to formulate a plan for compliance. 139 
F. Supp. 578.

At the October 1956 term of court respondents moved for 
a further postponement until after the 1957 session of the 
Tennessee legislature. This motion was denied and the case 
set for hearing in November 1956 (R. 69a). Thereupon, 
respondents tiled a supplemental pleading setting forth 
their proposed plan for an “initial step to comply with the 
decision of the Supreme Court of the United States” to 
be effectuated on September 1, 1957 (R. 32a, 36a-37a). The 
initial plan provided for: (1) abolition of compulsory
segregation in Grade One of the elementary schools be­
ginning in September 1957; (2) the establishment of school 
zones without reference to race for Grade One, based 
on a school census and the location of buildings; (3) per­
mitting every student in Grade One to attend the school 
in the zone of his residence; (4) the consideration and 
granting of applications for transfer of first grade pupils 
from the school of their zone to schools outside their zone 
for good cause shown; (5) transfers to be granted to white 
or colored students who would otherwise be required by the 
zoning system to attend a school previously serving only 
students of the other race, or who would otherwise be re­
quired by the zoning system to attend a school “where the 
majority of students in that school or in his or her grade 
are of a different race” ; and (6) for further committee 
study and recommendations by December 1957 with re­
spect to the next step in abolishing segregation.

Oral testimony was heard and received by the court on 
November 13-14, 1956 (R. 38a-48a; 19b-50b). The Court 
entered a Memorandum Opinion, January 21, 1957 (R. 
46a-56a), Findings and Conclusions (R. 57a-64a) and its 
Judgment (R. 65a-66a) on February 20, 1957. The district



7

court approved the plan for the initial step in compliance, 
except for paragraph six which was disapproved, and di­
rected the respondents to submit, not later than December 
31, 1957, a complete plan to abolish segregation. The Court 
issued no injunction but retained jurisdiction.

Immediately preceding the beginning of the 1957-58 
school term, respondents on August 30, 1957 filed a motion 
for leave to file a Supplemental Answer and Counterclaim, 
which alleged that Chapter 11, Public Acts of Tennessee 
for 1957, authorized the establishment of separate schools 
for white and Negro children whose parents elect that such 
children attend schools with members of their own race, 
that petitions had been received from parents urging the 
establishment of such separate schools, and praying that 
the previous judgment of the court concerning desegrega­
tion of the first grade be suspended, modified, amended 
or vacated and for a declaration of the rights of the parties 
(R. lb-12b). After argument, the District Court denied 
the motion (R. 67a-81a), ruling that the statute relied upon 
by respondents was “on its face antagonistic to the prin­
ciples declared by the Supreme Court in the two Brown 
cases and [was], therefore, unconstitutional” (R. 75a).

In September 1957, nine or ten Negro children were 
admitted to first grade classes in previously all-white 
schools (R. 83a; 52b). The opening of classes was attended 
by the attempts of some persons to interfere with the de­
segregation of the schools through acts of violence, in­
timidation, coercion and incitement, including the damaging 
of one school by dynamiting (R. 53b-54b). The respondent 
board and the City of Nashville, instituted ancillary pro­
ceedings and obtained a temporary restraining order and 
a preliminary injunction prohibiting ten or more known 
persons from further interfering with the Board of Edu­
cation, its employees and the school children (R. 60b-66b).



8

These connected proceedings are reported at 2 Race Rel. 
Law R. 976 et seq., see footnote 2, supra, page 2.

On December 6, 1957 respondents filed a Report which 
contained another proposed plan (R. 13b-16b), and peti­
tioners filed objections to the plan (R. 17b-18b). The new 
plan contemplated the establishment of a system of three 
types of schools (schools for Negroes exclusively, schools 
for whites exclusively, and “integrated” schools) which was 
substantially the same as the system contemplated by 
Chapter 11, Public Acts of Tennessee for 1957, which had 
theretofore been ruled invalid by the District Court. Sub­
sequently, on January 20, 1958, and before hearing on the 
plan, respondents filed also a Motion to Dismiss the action 
on the ground that the Pupil Assignment Act, Chapter 13, 
Public Acts of Tennessee for 1957, provided an adminis­
trative remedy for petitioners to obtain admission to par­
ticular schools which should be exhausted before resorting 
to the court for injunctive relief (R. 91a). Further evi­
dence and arguments were presented January 28, 1958 
(R. 82a-87a; 50b-59b). The Court filed an opinion Febru­
ary 18, 1958 (R. 88a-102a; 159 F. Supp. 272), and an Order 
on March 19, 1958 (R. 103a-104a) denying the motion to 
dismiss, disapproving the proposed plan, withholding is­
suance of an injunction, and directing the Board of Edu­
cation to present another plan not later than April 7, 1958. 
The Court denied the motion to dismiss on the ground that 
the Pupil Assignment statute relied upon by respondents 
did not afford an adequate remedy to secure the relief 
sought since the respondents were committed to a policy 
of segregation in all grades but the first (R. 91a-97a; 159 
F. Supp. 272, 275-277). The plan was disapproved on the 
ground that it would require racial segregation in certain 
schools (R. 98a-101a; 159 F. Supp. 272, 278-279).



9

On April 7, 1958, respondents submitted another plan 
to the Court (E. 236a-237a). This plan provided for: (a) 
abolishing compulsory segregation in Grade Two in Sep­
tember 1958, and one additional grade each succeeding 
year; (b) application of the zoning and transfer provisions 
which were contained in the plan submitted in November 
1956, to each successive grade in which segregation was 
abolished; and (c) advising the Court of progress and 
problems at such intervals as the Court directed.

A hearing was conducted on the plan on April 14, 1958, 
and testimony was offered for the respective parties (E. 
105a-235a). The testimony offered at the hearing is sum­
marized in the opinion of the Court of Appeals of June 
17, 1959 (Appendix, infra, pp. 45-65). The Superintendent 
of Schools, the Chairman of the Board of Education, the 
principal of an elementary school, and the then recently 
retired Superintendent of Schools presented respondents’ 
testimony. Each stated as a principal reason for the 
adoption of the plan the belief that this was the best plan 
for the community, and that this plan would incur less 
objection and resistance from those (including parents, 
children and teachers) who opposed desegregation of the 
schools than any other method (E. 112a-116a, 126a, 132a- 
133a, 145a, 152a, 155a-156a, 165a-166a).

Testimony concerning respondents’ reasons for having 
adopted its plan appears over more than a hundred pages 
of the record (106a-170a, 19b~59b). With the exceptions 
set forth hereafter this testimony was concerned largely 
with hostility or antipathy to desegregation. For example, 
the following may be quoted:

W. H. Oliver  (Superintendent of Schools) :
“But right to the question, I ’d say in the first place 

I think this is the best plan because it would incur the



10

least opposition, the smallest number and size of diffi­
culties to deal with. Judging from past experience, 
there are difficulties encountered in this process of de­
segregation” (R. 112a).

# # # # #
“A. If I may explain it this way, I think there is a 

great deal of violent reaction and opposition we are 
going to encounter from the people in our community, 
and I think that if it is distributed over a period of 
years, we can take it better.

“ . . . One reason why I think the year-by-year plan 
is best is that I think that there will be a good bit of 
reaction against it and opposition to it and that that 
reaction will be easier to deal with and will be less 
violent if it is distributed over a period of years. And 
the principal person I am pleading for there is the 
child himself ” (R. 126a).

* # # * #
“Q. My question was directed towards your opinion 

or rather how the public acceptance or public rejection 
affected your plan? A. Well, I think that one reason 
for favoring this plan is that it will be less objectionable 
to the people.

“Q. That is one of your primary objections? A. I 
may have been a little too brief in answering that. Of 
course, what I ’m thinking about is not so much the 
objection of the people but the results of that objec­
tion on the work of the schools” (R. 127a).

E l m e r  L ee  P e t t it  (Acting Chairman of the School 
Board):

“Q. Well, sir, I think you testified—or did you tes­
tify that you thought the majority of the community



11

was in favor—was against desegregation? A. I didn’t 
say that. I think it’s—• I t’s probably generally believed 
that most of the white people are against it, and I can’t 
speak for other people.

“Q. Is that why you thought—you testified that you 
thought the wisest plan was a gradual plan to go up 
one year at a time, that the Board thought that? A. 
That is one reason. Surely” (R. 145a).

# # # # #
M aby B r e n t  (Principal):

“Q. Miss Brent, since September 1957, state whether 
or not there has continued to exist a tension in your 
school and in your school constituency? A. Yes, sir; 
there has. We have managed, since there are only the 
two children. We have fairly well managed to keep it 
down within the school itself, but it’s mostly on the 
outside that we have felt it. The two Negro children 
are brought to school each day and are taken home by 
one or other of the parents. That’s one thing.

There have been two or three incidents within the 
school that older children had brought about. As far 
as the children with their own first-grade group, they 
are well accepted. Things have gone on fairly smoothly, 
but with the older children we have had some trouble.

I myself have been the brunt of several pretty bad 
things. I mean such as anonymous telephone calls and 
calling me different names that a lady doesn’t appre­
ciate. And for the first—I ’d say the first six weeks, 
there was a constant stream of parents in and out of 
the school putting up the arguments to me that I had 
listened to most of the summer; and sometimes they 
would go away satisfied, sometimes they would not. 
Some of them have never come back into the school 
since that time” (R. 152a).



12

The Court of Appeals’ opinion commences with a lengthy 
recital of hostility and violence which occurred in Nash­
ville, which that Court described as “pertinent” :

The background of the case is pertinent: The entry 
of the judgment approving the above plan of desegre­
gating the first grade and compliance therewith by the 
Board of Education and the school authorities gave rise 
to violence on the part of criminal elements opposed to 
desegregation, who wrecked a city school by bombing, 
and destroyed a synagogue by the same means. Un­
lawful crowds of disorderly persons caused great 
trouble and turbulence until the district court re­
strained one Kasper and others, by injunction, from 
acts of violence, intimidation, coercion, and incitement. 
In granting the injunction, the district court declared 
that the action of the Board of Education in putting 
into effect the order and judgment of the court ‘pre­
cipitated a situation in the City of Nashville which very 
nearly approached for some several hours’ time—if not 
for several days’ time—a reign of terror, certainly a 
reign of terror among those parents having children 
in the public schools, particularly in the first grade 
schools. * * * [If] it had not been for the decisive way 
that the City authorities went about discharging their 
duties, the reign of terror which overwhelmed the City 
would have been much worse than it actually was.’ It 
was the Board of Education of the City of Nashville 
that, when the trouble started, immediately pressed for 
the injunction against the acts of violence and coercion; 
and it was the police of the City of Nashville that 
curbed the acts of intimidation and enforced public 
order. It is to be remarked that none of the illegal 
acts, riotous conduct, or inflammatory propaganda 
hampered either the district judge or the Board of 
Education in carrying out their duties, firmly and



13

swiftly, in the face of terroristic threats and disorder 
that characterize snch unlawful groups in every part 
of the country where riots, arising from any cause, 
have, in the past, occurred.

The evidence other than that of hostility consisted of 
the Superintendent’s testimony regarding homogeneous 
grouping:

“and another reason is that it will give us a more ho­
mogeneous grouping of students. At least, it will make 
possible a more homogeneous grouping of students” 
(R. 115a).

“If homogeneous grouping has any value, then we 
can get the greatest value out of it by a gradual plan” 
(R. 114a).

“ . . . the matter of homogeneous grouping is some­
thing which we have been dealing with in Nashville for 
a good many years. . . . We don’t know what is the 
best thing to do. . . . The question of homogeneous 
grouping will—is one which will continue with us” (R. 
124a).

“In fact, I wouldn’t consider that [race] as the prin­
cipal fact that I had in mind [grouping children ho­
mogeneously]” (R. 125a).

There also was testimony concerning teacher recruit­
ment :

W. A. B ass (former Superintendent):
“ . . . I have discovered that many teachers who 

might offer their services as teachers decline to teach 
in a desegregated school system” (R. 37b-38b).

In addition, there was testimony, in general terms, that 
administrative difficulties might be presented by the new



14

racial transfer plan (R. 39b), the constitutionality of which 
petitioners challenge herein. See page 30, infra.

It fairly may be said that there was no substantial elab­
oration of these statements and that there was no testimony 
at all indicating the time factors related to solution of these 
problems.

Petitioners’ witnesses were a psychologist and two soci­
ologists, all of whom held or had held college teaching 
positions and had done research, writing and consultative 
work in the field of race relations and desegregation (R. 
171a-175a, 195a-196a, 2Q8a-209a). Petitioners’ fourth wit­
ness was the lone Negro member of the Nashville Board 
of Education (R. 222a). These witnesses testified that ex­
perience with desegregation in several localities demon­
strated that delay increases rather than decreases com­
munity antagonism (R. 177a-178a, 197a-200a, 210a-211a). 
They stated that delay creates doubts and resistance in 
the public mind (R. 177a-178a); further confusion is engen­
dered by singling out particular grades for desegregation 
and breaking up family units (R. 198a-199a). Conversely, 
in communities where desegregation was accomplished 
rapidly, tensions were minimized (R. 178a, 210a-211a). Ex­
pressed attitudes against desegregation did not manifest 
themselves in action (R. 211a) and the apprehensions of 
teachers that desegregated classes could not be taught 
successfully proved unwarranted (R. 174a).

Two of petitioners’ witnesses contended that desegrega­
tion should take place immediately (R. 210a, 243a), while 
two others suggested that it could be accomplished by 
functional units in a two- or three-stage plan (R. 206a, 
233a). All of petitioners’ witnesses, however, opposed the 
twelve year program (R. 177a-178a, 197a-200a, 210a, 222a) 
and none stated a belief that desegregation could not prac­
ticably be put into effect immediately.



15

After the hearing, the Court entered an opinion on June 
19, 1958 (R. 236a-240a), and on July 17, 1958 entered Find­
ings of Fact and Conclusions of Law (R. 241a-245a) and a 
Judgment (R. 246a), approving the plan and denying in­
junctive relief. The court retained jurisdiction during the 
period of transition.

Petitioners appealed the judgment approving the plan 
and denying injunctive relief, and respondents cross-ap­
pealed asserting that the district court had erred in reject­
ing their earlier plan (R. 13b-16b) for three groups of 
schools.

The appeal and cross-appeal were argued and submitted 
to the United States Court of Appeals for the Sixth Cir­
cuit, and that Court affirmed the judgment of the District 
Court on June 17,1959.

REASONS FOR GRANTING THE WRIT

Summary of Reasons for Granting the Writ
Four years after the second opinion in the Brown case 

growing amount of litigation seeking enforcement of the 
principle of desegregation in public schools has been dis­
posed of in one of two ways: pupil assignment plans and 
twelve year stair-step plans. It is becoming increasingly 
evident that this Court should give guidance to the lower 
courts in considering plans, which at first blush, might 
appear to be an easy and yet satisfactory compliance with 
this Court’s opinions in Brown and Cooper and at the same 
time be least distasteful to those who are in disagreement 
with the principle of desegregation.

The decision below conflicts with Brown v. Board of Ed­
ucation, 347 U. S. 483, 349 U. S. 294 and Cooper v.. Aaron, 
358 U. S. 1, in salient respects. All of the petitioners herein



16

were wholly denied any desegregated education whatso­
ever by the decision below. The Brown and Cooper cases, 
which control, while suggesting grounds upon which a 
board may sustain its burden of justifying some delay, 
certainly did not establish any ground upon which relief 
might be postponed indefinitely.

Moreover, a class suit is one in which a plaintiff, who 
secured relief, thereby also gains a similar right for others, 
not a suit in which plaintiff is held ineligible for relief 
which is thereby conferred on future members of the class.

But beyond violating the holdings of Brown and Cooper 
by denying relief, the court below did not have justification 
for even delaying relief. Delay is permissible only to per­
mit adjustments of the nature detailed in said opinions. 
No substantial problems of such kind were advanced by 
respondents. Their singular ground for delay, detailed 
time and again, was opposition to desegregation. The 
Court of Appeals deemed this objection “pertinent” and 
prominently detailed such evidence in its opinion although 
acknowledging the rule of Brown and Cooper that con­
siderations of this sort are immaterial. But this Court, 
under long established precedent, evaluates the record it­
self in so far as constitutional rights are concerned and 
should find, petitioners submit, that the rationale of the 
holding below was that hostility justified denial and delay. 
The administrative factors adduced by respondents did 
not justify protracted delay. There was no evidence what­
soever concerning their justifying twelve years’ delay or 
delay for any particular or general duration.

The transfer plan which embodies explicit racial criteria 
is unconstitutional. Race may not be used as a standard 
for governmental action. Moreover, in the context of this 
case, this transfer plan tends to perpetuate segregation.



17

This Court, therefore, should grant certiorari and upon 
consideration thereof, should vacate the judgment below 
and direct that the court below reconsider the record in 
the light of Brown and Cooper, exclude from its considera­
tion all evidence of hostility to desegregation, relate the 
time during which desegregation is to occur to valid 
grounds for delay, and order that plaintiffs herein be 
awarded relief.

I.

The decision below approves a plan which denies to 
petitioners an opportunity to ever obtain rights guar­
anteed by the Brown and Cooper decisions and therefore 
conflicts with those decisions.

Brown v. Board of Education, 349 U. S. 294, 298, estab­
lished the principle that upon “adjusting and reconciling 
public and private needs” (Id. at 300), “the personal in­
terest of the plaintiffs in admission to public schools as 
soon as practicable on a nondiscriminatory basis” might 
be deferred to “take into account the public interest in the 
elimination of [certain specified types of] obstacles in a 
systematic and effective manner.”

Cooper v. Aaron, 358 U. S. 1, 7, further described the 
duty incumbent on school boards and the standards by 
which courts were to judge board action:

. . . the District Courts were directed to require ‘a 
prompt and reasonable start toward full compliance,’ 
and to take such action as was necessary to bring about 
the end of racial segregation in the public schools ‘with 
all deliberate speed.’ Ibid. Of course, in many loca­
tions, obedience to the duty of desegregation would re­
quire the immediate general admission of Negro 
children, otherwise qualified as students for their ap­



18

propriate classes, at particular schools. On the other 
hand, a District Court, after analysis of the relevant 
factors (which, of course, excludes hostility to racial 
desegregation), might conclude that justification ex­
isted for not requiring the present nonsegregated ad­
mission of all qualified Negro children. In such cir­
cumstances, however, the Court should scrutinize the 
program of the school authorities to make sure that 
they had developed arrangements pointed toward the 
earliest practicable completion of desegregation, and 
had taken appropriate steps to put their program into 
effective operation. It was made plain that delay in 
any guise in order to deny the constitutional rights of 
Negro children could not be countenanced, and that 
only a prompt start, diligently and earnestly pursued, 
to eliminate racial segregation from the public schools 
could constitute good faith compliance. State authori­
ties were thus duty bound to devote every effort toward 
initiating desegregation and bringing about the elim­
ination of racial discrimination in the public school 
system.

Those decisions certainly did not establish the rule that 
constitutional rights might be wholly and irremediably 
denied. Yet so far as the petitioners—all of whom were 
in school at the time of suit—are concerned, the judgments 
below do just that. None of those who went to court to 
secure their rights will ever experience a day of desegre­
gated public education in Nashville. This, petitioners sub­
mit, makes a mockery of equal justice under law.

The “good faith” of the school board is not the deter­
minative factor in considering the validity of the plan. 
Rather, it is the end result which is controlling. Good faith 
can not be used as an excuse for unlawfully postponing



19

enforcement of rights guaranteed by Brown. See Cooper 
v. Aaron, 358 U. S. 1,15.

All of the named minor petitioners were children who 
were already attending public schools in the City of Nash­
ville. Indeed had they not been students they surely would 
have had to face the argument that they had no standing 
to sue or that suit was premature. See Doremus v. Board 
of Education of the Borough of Hawthorne, 342 U. S. 429 
(plaintiff graduated); Tate v. City of Eufala, 165 F. Supp. 
303 (M. D. Ala. 1958) (may not be presumed that defen­
dants will discriminate in the future).

By the very nature of the “year-by-year plan” of de­
segregation, which begins in the first grade and proceeds to 
desegregate succeeding grades one year at a time, no child 
making normal progress from grade-to-grade who at­
tended school prior to the commencement of the plan, may 
ever attend a desegregated class in the public schools. Thus, 
the only relief that these litigants obtain through the 
judicially approved plan, is the satisfaction they may gain 
from being instrumental in securing governmental respect 
for the constitutional rights of others. However real and 
substantial such satisfaction may be, it is no legal substi­
tute for judicial protection of these litigants’ “personal” 
constitutional rights.

This Court recognized in the second opinion in the 
Brown case that equity courts should exercise practical 
flexibility in “reconciling public and private needs.” But 
the plan in the instant case does not “adjust or reconcile” 
the needs of the immediate litigants. To the contrary, it 
ignores them and makes no provision for them ever to 
escape discrimination in the system. This is not consistent 
with this Court’s recognition that—“At stake is the personal 
interest of the plaintiffs in admission to public schools as 
soon as practicable on a nondiscriminatory basis.”



20

The fact that this is a representative class action, and 
that petitioners brought this litigation on behalf of them­
selves and all others similarly situated who were suffering 
discrimination, does not justify the result. It is no answer 
to petitioners’ claim that they are entitled to a personal 
freedom from discrimination, to say to them that the re­
spondents have stopped discriminating against others. In­
deed, the commonly accepted concept of a class suit is one 
in which plaintiff vindicates his rights and others may 
secure similar relief. It is unprecedented, petitioners sub­
mit, for a judgment to provide that others may secure re­
lief upon petitioners’ suit, but petitioners shall not.

It is submitted that a plan which makes no provision for 
any of the pupils in the school system prior to the time the 
plan is commenced, and thus gives no consideration or hope 
to the parties and the large part of a generation of stu­
dents, cannot satisfy the requirement that authorities pro­
ceed with “all deliberate speed” to end discrimination in 
public education. In other words, a plan which completely 
ignores the rights of the named petitioners and others 
similarly situated—students then in school—does not meet 
the requirements of the Brown decision.



21

II.
Moreover, the record contains no justification for 

delay cognizable under decisions of this Court.

There are, of course, no valid grounds upon which the 
rights involved herein may be denied, but neither did the 
record present any legally cognizable grounds for delaying 
constitutional rights beyond the three years this case had 
been pending. Each of the witnesses for respondents in 
the trial court clearly indicated on direct examination (some 
of them also so indicated on cross-examination) that the 
factor of hostility to desegregation and the extent of racial 
prejudice among the various groups to be affected by school 
desegregation, was a basis for the adoption of the proposed 
plan, as well as each witness’ support of the plan. No read­
ing between the lines is necessary to ascertain this; these 
views were directly and openly expressed and quite evi­
dently represented respondents’ theory of the case.4

Four witnesses testified in support of the plan. They 
were the Superintendent of Schools (R. 107a-129a, 228a- 
233a), the chairman of the Board of Education (R. 129a- 
150a), a public school principal (R. 150a-159a), and the 
retired Superintendent of Schools, who had participated in 
formulating the plan (R. 159a-170a). The Superintendent 
of Schools testified at length about opposition to desegre­
gation in the community and his view that this plan would 
encounter the least opposition and violent reaction among 
those who were opposed to desegregation, as well as the 
effects of the desegregation controversy on race relations 
in the community and the effects of objection to desegrega­
tion on the work of the schools. Part of such testimony

4 Perhaps the basic error in the record below is that the testimony 
of violence and hostility was admitted into evidence. See City of 
Birmingham v. Monk, 185 F. 2d 859 (5th Cir. 1950).



22

is quoted in the Statement, supra; other examples may be 
found on the following pages of the record: 112a, 113a, 
114a, 116a, 126a, 127a.

The Chairman of the Board testified principally con­
cerning his views as to the efficacy of the plan in minimizing 
tension within and outside of the schools, and his view that 
this was the wisest plan because of the opposition to deseg­
regation among various elements. This testimony may be 
found at record pages 132a-133a,, 145a.

The elementary school principal testified as to the ten­
sion in her school following limited desegregation, about 
the resistance of parents to desegregation, about problems 
created by older childrens’ disorderly behavior, and her 
beliefs that younger children are less conscious of racial 
differences than the older children, and that desegregation 
immediately in the higher grades would bring “trouble.” 
See record pages 152a, 155a-156a, 157a-159a.

Finally, the retired Superintendent of Schools stated his 
view that segregation should be ended very gradually be­
cause of the resistance among the teachers and others in 
the community. The witness recounted an incident that 
had occurred when he first became Superintendent (ap­
parently some twenty years ago) at which white teachers 
refused to sit next to Negro teachers at a meeting, and 
that it took ten years until teachers and supervisors would 
sit down together and talk in confidence. The witness also 
testified concerning his discussions with parents dissatis­
fied with desegregation, and the difficulties encountered by a 
Negro parent in registering his child at a white school be­
cause of a crowd of persons gathered outside the school. 
See record pages 161a-163a, 165a-166a.

The District Court specifically recognized and referred 
to the witnesses’ consideration of opposition to desegrega­
tion. The court wrote that:



23

“[Respondents] are convinced that the change-over from 
a segregated system of public education in this par­
ticular area of the south is one of such drastic charac­
ter, such a reversal of custom, tradition and settled 
practice, that disagreement with it is pervasive, far- 
reaching and deep seated. It is their opinion that 
proper school administration requires that the School 
Board in devising a plan should take into account the 
existence of this factor in order to minimize its effects 
upon the efficiency of the schools” (R. 237a-238a).

The Court of Appeals held this testimony “pertinent” and 
bestowed upon it the position of first importance in its 
opinion. It clearly and at length recognized the presence 
in the record of the great deal of testimony attempting to 
justify the plan on the basis of minimizing the effect of 
community attitudes and opposition among parents, pupils 
and teachers. The courts below did recognize and quote 
from Cooper v. Aaron, 358 U. S. 1, but, petitioners submit, 
while the opinions do not explicitly avow that hostility and 
violence are constitutionally valid grounds for denial and 
delay and may be considered in the absence of persuasive 
administrative problems, those factors were in fact the 
dispositive factors.



24

III,
Contrary to the Brown and Cooper decisions no ra­

tional connection was demonstrated or suggested by 
respondents between the few problems mentioned which 
did not directly result from racial prejudice or hostility 
to desegregation, and the period of delay prescribed in 
the proposed plan to solve the problems of desegrega­
tion.

This Court decided in Brown v. Board of Education, 349 
U. S. 294, that in school segregation cases, the federal 
courts, after requiring “a prompt and reasonable start 
toward full compliance,” could permit local school au­
thorities additional time “to carry out the ruling in an 
effective manner,” where they established “that such time 
is necessary in the public interest and is consistent with 
good faith compliance at the earliest practicable date” 
(349 U. S. at 300). This Court had described the types of 
problems related to public school administration which the 
courts could consider in determining whether time should 
be granted, including problems arising from:

a. “the physical condition of the school plant” ;
b. “the school transportation system” ;
c. “personnel” ;
d. “revision of school districts and attendance areas into 

compact units to achieve a system of determining 
admission to the public schools on a non-racial basis” ;

e. “revision of local laws and regulations which may be 
necessary in solving the foregoing problems” (349 
U. S. at 300-01).

Which of the factors testified to by respondents fall in 
these types of categories!



25

The Superintendent of Schools of Nashville testified that 
the school system was attempting to achieve, to some ex­
tent, “homogeneous grouping” of the same classes of stu­
dents writh similar backgrounds, qualifications and capac­
ities (R. 115a-116a, 124a-125a). The direct testimony of the 
witness indicates that no complete system of homogeneous 
grouping was accomplished before desegregation began, 
although there is no explanation at all of the difficulties 
(R. 115a). It is equally clear from the cross-examination 
that the problem of obtaining homogeneous grouping of 
pupils is expected to continue for a long period of time 
beyond desegregation (E. 124a). There has been no attempt 
to explain how or why a twelve year period of desegrega­
tion helps to achieve homogeneous grouping, or why a 
shorter period prevents homogeneous grouping, or any 
other rational connection between the twro situations. We 
have only the witness’ conclusion that: “If homogeneous 
grouping has any value, then wre can get the greatest value 
out of it by a gradual plan” (R. 116a). But he did not 
testify that homogeneous grouping had value or how race 
was related to it. Certainly there was no evidence that 
twelve years was necessary to achieve desegregation with 
homogeneous grouping.

So far as teacher recruitment was involved there was no 
testimony at all that twelve years, or any number of years 
would solve, alleviate, or in any way affect recruitment. 
In any event, though the record does not at all clearly 
explain the extent of the problem, insofar as it relates to 
desegregation it reflects alleged opposition of some teach­
ers to teaching desegregated classes. In this aspect it 
partakes of the unconstitutionally of respondents’ reli­
ance on hostility.

To place respondents’ contentions in their most favorable 
light, we might also take note of the mere mention in the



26

record that administrative difficulties may also be presented 
by the new racial transfer plan (R. 37b). This plan, peti­
tioners submit, is clearly unconstitutional. But, here again, 
there is not so much as a suggestion that any number of 
years is needed to cope with the problem.

“ ‘The vindication of rights guaranteed by the Consti­
tution can not be conditioned upon the absence of practical 
difficulties.’ ” Aaron v. Cooper, 257 F. 2d 33, 38 (8th Cir. 
1958), quoting- Orleans Parish School Board v. Bush, 242 
F. 2d 156, 166 (5th Cir. 1957).

Petitioners submit, however, that this Court should, as 
it always does in constitutional cases, make its own ap­
praisal of the factual basis of the judgment. See Ohio 
Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 
(1920); St. Joseph Stock Yards Co. v. United States, 298 
U. S. 38, 49 (1936); Ng Fung Ho v. White, 259 U. S. 276, 
284-285 (1922); Baltimore £  Ohio RR Co. v. United States, 
298 IT. S. 349, 372 (1936); Norris v. Alabama, 294 U. S. 
587, 589-590 (1935); Watts v. Indiana, 338 U. S. 49, 50-51 
(1949) ; Niemotko v. Maryland, 340 TJ. S. 268, 271 (1951) ; 
Pierre v. Louisiana, 306 U. S. 354, 358 (1939); Feiner v. 
New York, 340 U. S. 315, 316, 323 footnote 4 (1951); Spano
v. U. S., -----  U. S. ----- , 3 L. ed. 2d 1265, 1267 (1959);
Napue v. Illinois,-----TJ. S. ------ , 3 L. ed. 2d 1217, 1222-
1223 (1959).

There can be no doubt that without evidence concerning 
opposition respondents’ record would have been reduced to 
a mere few words concerning administrative problems, 
none of them supporting protracted delay at all.

Respondents’ position apparently is, however, that com­
munity hostility to desegregation is relevant and can jus­
tify delay in compliance, where that hostility is shown to 
have an effect on the educational program. This argument 
seeks support from the obvious fact that administration



27

of a change-over does take some time, as this Court has 
recognized, and that administrative problems must, of 
course, be taken into account. But to seek justification for 
delay for hostility by citing violently induced administra­
tive factors subverts the constitutional rule. Nevertheless, 
it is a familiar recurring argument. It has, however, been 
emphatically rejected by this Court in Cooper v. Aaron, 358 
U. S. 1, 7, 16. See also the discussion of this point by the 
court below in that case, Aaron v. Cooper, 257 F. 2d 33, 
37-38 (8th Cir. 1958) and the other lower court cases men­
tioned there, which indicate consistent rejection of this 
argument. Jackson v. Rawdon, 235 F. 2d 93, 96 (5th Cir. 
1956), cert. den. 352 TJ. S. 925; School Board of the City 
of Charlottesville, Va. v. Allen, 240 F. 2d 59 (4th Cir. 
1956), cert. den. 353 U. S. 910; Orleans Parish School 
Board v. Bush, 242 F. 2d 156, 166 (5th Cir. 1957), cert, 
den. 354 U. S. 921; Allen v. County School Board of Prince 
Edward County, Va,, 249 F. 2d 462, 465 (4th Cir. 1957), cert, 
den. 355 U. S. 953. See also Buchanan v. Warley, 245 TJ. S. 
60, 81, where this court more than forty years ago rejected 
the argument unanimously.

The Court has never intimated that the federal courts 
should take cognizance of problems created by the hostility 
of anyone (including the public, teachers or school authori­
ties, parents or pupils) to desegregation, whether real or 
imagined or in whatever manner that hostility may have 
been manifested. This Court recognized in the Brown case 
that “varied local school problems” existed throughout the 
several states with laws “requiring or permitting racial 
discrimination in public education,” and concluded that 
“because of their proximity to local conditions and the pos­
sible need for further hearings” the trial courts “can best 
perform this judicial appraisal.” But the decision lends 
no support for the assumption of the courts below that their



28

familiarity with the extent of local racial prejudice and 
community antagonism to public school desegregation can 
be permitted to influence either the time or manner in which 
the courts of the United States will require governmental 
agents to respect the constitutionally protected liberties of 
citizens. A doctrine recognizing hostility to the enjoyment 
of constitutional liberties as a basis for postponement or 
denial of those liberties is entirely alien to the concept of 
liberty under law. Indeed, there probably hardly is a dis­
trict which has refused to desegregate where some witnesses 
would not testify that there is at least some opposition 
to desegregation and that some tension would result from 
desegregation. Liberty could not survive such a doctrine.

Assuming arguendo that the effect of community antag­
onism was a permissible consideration, the decision of the 
court below that the plan was consistent with compliance 
at the earliest practicable date, was not supported by the 
record. This Court emphatically stated in Brown v. Board 
of Education, supra, that “the burden rests upon the de­
fendants to establish that such time is necessary in the 
public interest and is consistent with good faith compli­
ance at the earliest practicable date.” (Emphasis supplied.) 
The proposition was stated in Cooper v. Aaron, supra, in 
these words:

“ . . .  the courts should scrutinize the program of the 
school authorities to make sure that they had devel­
oped arrangements pointed toward the earliest prac­
ticable completion of desegregation, and had taken ap­
propriate steps to put their program into effective 
operation” (358 U. S. at 7).

Respondents established no basis in the record for the 
conclusion that a twelve year plan was consistent with 
compliance at the earliest practicable date whether one



29

considered community hostility or not. Indeed, as time has 
gone on respondents have shown less disposition to de­
segregate than at the outset. Prior to the hearing in the 
trial court at which the instant plan was considered the 
court had exhibited substantial patience with respondents 
and certainly allowed them sufficient time to make admin­
istrative adjustments and to conduct a substantial effort 
to reduce hostility. The court had granted respondents a 
continuance from March to October, 1956, to prepare a 
plan (139 F. Supp. 578); had allowed respondents until 
December 1957 to submit a complete plan after approving 
the interim plan in January 1957 (R. 65a); and had per­
mitted them until April 1958 to submit a new plan after the 
December 1957 plan was held unlawful (R. 103a). But the 
passage of time in this case accompanied an apparent 
hardening of resistance to desegregation among the re­
spondents themselves. In 1956 defendants agreed to submit 
a plan (R. 26a-31a). But in 1957 they attempted to secure 
judicial approval to abandon the initial interim plan before 
it was commenced (R. lb-12b). They filed a cross-appeal 
designed to substitute their plan for three school systems 
(white, Negro and “integrated”) (R. 13b-16b) for the 
present twelve-year plan. Nowhere have they shown the 
relationship between slowness in desegregation and hos­
tility.



30

IV.
The proposed plan contains racial standards for pupil 

transfer which perpetuate racial discrimination within 
the school system.

One of the most obvious accommodations to those who 
disagreed in principle with the Brown and Cooper cases 
was the provision for free transfers in order to continue 
de facto segregated schools for an indefinite period. The 
proposed plan approved by the courts below includes the 
following provision:

“B. All provisions of the Plan with respect to zon­
ing, transfers and the like shall continue in force and 
effect with respect to each additional grade as the 
Plan becomes applicable to such grade” (R. 236a).

The effect of the provision is to incorporate into the plan 
paragraphs numbered 2, 3, 4 and 5 of the interim or “ini­
tial step” plan (R. 61a-62a) which establish zones without 
regard to race but explicitly permit transfer out of such 
zones where a student is zoned for a school previously 
established for children of another race or where children 
of another race are in the majority.5 “This . . .  is based

5 “2. A plan of school zoning or districting based on location of 
school buildings and the latest scholastic census without reference 
to race will be established for the administration of the first grade 
and of other grades as hereafter desegregated.

“3. Every student entering the first grade will be permitted to 
attend the school designated for the zone in which he or she resides, 
subject to regulations that may be necessary in particular instances.

“4. Applications for transfer of first grade students from the 
school of their zone to another school will be given careful consider­
ation and will be granted when made in writing by parents or 
guardians or those acting in the position of parents, when good 
cause therefor is shown and when transfer is practicable, consistent 
with sound school administration.



31

wholly upon color, simply that, and nothing more.” Bu­
chanan v. Warley, 245 U. 8. 60, 73.

Petitioners makes no objection to the provisions of para­
graphs 2, 3 and 4 if they are fairly administered without 
regard to race. Petitioners do object to paragraph 5 which 
prescribes racial standards for the administration of para­
graph 4.

The provisions of paragraph 5, explicitly classify pupils 
according to their race in providing standards for the school 
authorities to grant transfers out of the established zones. 
Moreover, their chief vice, in the context of this suit, is that 
they tend to perpetuate, not eliminate, segregation.

All governmental classifications based on race or color 
are presumptively arbitrary. Brown v. Board of Educa­
tion, 347 U. S. 483, and Bolling v. Sharpe, 347 U. S. 497; 
Korematsu v. United States, 323 U. S. 214, 216 ; Hiraba- 
yashi v. United States, 320 U. 8. 81, 100; Nixon v. Herndon, 
273 U. S. 536, 541. The racial classification made in the 
instant case, by which a student’s right to transfer is made 
to depend upon a calculation of the race of a “majority” 
of the students in a school or class within a school and/or 
the racial composition of the school prior to the plan, bears 
no reasonable relation to any proper governmental or edu­
cational objective, and none has been asserted except that 
it will cater to existing racial antagonisms. Such a provi­
sion regulating assignments on the basis of race is plainly

“5. The following will be regarded as some of the valid condi­
tions to support application for transfer:

(a) When a white student would otherwise be required to 
attend a school previously serving colored students only.

(b) When a colored student would otherwise be required to 
attend a school previously serving white students only.

(c) When a student would otherwise be required to attend 
a school where the majority of students in that school or in 
his or her grade are of a different race.



32

inappropriate in a plan purporting to end racial segrega­
tion, for an adequate plan should be framed so as to “sup­
press the unlawful practices and to take such reasonable 
measures as would preclude their revival”, cf. United 
States v. Crescent Amusement Co., 323 U. S. 173, 188, cit­
ing Ethyl Gasoline Co-rp. v. United States, 309 U. S. 436, 
461, and not permit the perpetuation of the unlawful con­
dition previously created by the state.

The assertion that any resulting discrimination from the 
racial classification is the product of “private” rather than 
state action is without substance, for here it is clearly the 
school authorities who assign pupils, and it is the school 
authorities who continue to brand Negroes as an inferior 
group to be set apart. See McLaurin v. Oklahoma State 
Regents, 339 U. S. 637, 641. The proposition that no citizen 
has a liberty to “demand action by the state which results in 
the denial of equal protection of the laws to other individ­
uals” was applied in Shelley v. Kraemer, 334 U. S. 1, 22, 
and Barrows v. Jackson, 346 U. S. 249, 260. If school 
authorities may not assign pupils on the basis of race at 
the command of a state legislative enactment, it is un­
thinkable that they may do so in obedience to the prejudices 
of individual parents or pupils.

That this provision has operated in the instant case to 
preserve the status quo of segregation to a large extent is 
already apparent. Because of the racial residential pat­
terns in the community, when the first grade was desegre­
gated in Nashville in 1957, only 115 of 1400 Negro first 
graders were eligible to attend schools previously attended 
by white students (R. 86a-87a), and only 55 of 2000 white 
first grade students were eligible to attend schools pre­
viously attended by Negro students (R. 82a). Under the 
racial transfer provision all 55 white students and 105 
of the 115 Negro students transferred out of their zone



33

(E. 83a). Some of the 105 Negro pupils later sought re­
transfer back to their zones but were denied this opportu­
nity (E. 84a-86a).

Thus the transfer standards, indicating as they do the 
school authorities’ expectation of and acquiescence in the 
preservation of a large degree of segregation by community 
pressures,6 operate as they were intended. Here we have 
a plan based upon “the interplay of governmental and 
private action” working to accomplish segregation. Cf. 
N. A. A. C. P. v. Alabama, 357 U. S. 449, 463. The record 
clearly reveals the activities of forces using unlawful 
methods to prevent Negroes from asserting their rights 
to the equal educational opportunities which have been 
long denied them. The respondents’ racial transfer stand­
ards provide an effective governmental framework within 
which these forces may effectuate their purposes.

The fact that some Negroes may elect not to assert their 
rights and may make use of the “racial transfer provi­
sions,” cannot justify the denial to petitioners of the right 
to attend school in a public school system which makes no 
regulations on the basis of race, and which deals with all 
pupils without regard to their race or color. “It is the 
individual . . . who is entitled to the equal protection of 
the laws,—not merely a group of individuals, or a body of 
persons according to their numbers.” Mitchell v. United 
States, 313 U. S. 80, 97; Missouri ex rel. Gaines v. Canada, 
305 II. S. 337, 350-351.

Note the opinion of the Court below, appendix page 75:
“It is conceivable that the parent may have made the choice 
from a variety of reasons—concern that his child might other­
wise not be treated in a kindly way; personal fear of some 
kind of economic reprisal; or a feeling that the child’s life will 
be more harmonious with members of his own race.”



34

y .

The issues presented herein are of such high im­
portance as to require review by this Court.

This case presents important questions relating to the 
enforcement or administration of the directions given by 
this Court to lower courts in Brown v. Board of Education, 
349 U. S. 294. The substantial volume of litigation present­
ing divergent applications of those directions makes it 
clear that here is a question ripe for examination and that 
a clarification is imperative. A significant number of cases 
involving related questions are pending in federal trial or 
appellate courts; a clarifying decision will have immediate 
importance far beyond the facts and parties in the case 
at bar.

Over four years have passed since the directions of the 
Brown case were formulated. During this period federal 
courts have construed and applied them to sanction a 
variety of gradual desegregation programs or plans. For 
example, a three-step three year plan was approved in 
Groves v. Board of Education of St. Mary’s County, Md., 
164 F. Supp. 621 (D. Md. 1958), affirmed Board of Educa­
tion of St. Mary’s County v. Groves, 261 F. 2d 527 (4th Cir. 
1958);7 a three-step six year plan was approved for Little 
Bock, Aaron v. Cooper, 143 F. Supp. 855 (E. D. Ark. 1956), 
affirmed 243 F. 2d 361 (8th Cir. 1957); a two-step seven year 
program in Moore v. Board of Education of Harford 
County, Md., 152 F. Supp. 114 (D. Md. 1957), affirmed 
sub nom. Slade v. Board of Education of Harford County, 
252 F. 2d 291 (4th Cir. 1958), cert, denied 257 U. S. 906; 
and a nine-step nine year plan in Banks v. Izsard, Civ. No.

7 But see Garnett v. Oakley, Civ. No. 167, W. D. Ky., April 17, 
1957; Shedd v. Board of Education of Logan County, Civ. No. 833, 
S. D. W. Va., April 11, 1956 (rejecting three-step three year pro­
posals despite local outbreaks of violence and alleged but, as in the 
instant case, vaguely defined administrative problems).



35

1236, W. D. Ark., September 1957.8 Now, for the first time,9 
a twelve-step twelve year or one-grade-a-year stair-step 
plan has been sanctioned for Nashville.10

The question of the twelve year stair-step plan’s com­
patibility with the law of Brown is pending in a number 
of cases. See Evans v. Buchanan, 172 F. Supp. 508 (D. Del. 
1959), appeal pending before the United States Court of 
Appeals for the Third Circuit; Bush v. Orleans Parish 
School Board, Civ. No. 3630, E. D. La., July 15, 1959 (order 
“suggested” that the school authorities “consider” a twelve- 
year stair-step plan). Cf. Boss v. Petersen, Civ. No. 10444, 
S. D. Tex., undecided, Robinson v. Evans, Civ. No. 2643, 
S. D. Tex., undecided (Houston and Galveston school au­
thorities respectively, have submitted proposals for stair­
step plans without time limits).

If the decision below is permitted to stand by this Court, 
that decision will constitute a guiding precedent to other

8 But see Willis v. Walker, 136 F. Supp. 177, 136 F. Supp. 181 
(W. D. Ky., 1955) (rejecting a two year delay); Grimes v. Smith, 
Civ. No. 167, E. D. Ky., February 18, 1958; Mitchell v. Pollack, 
Civ. No. 708, W. D. Ky., February 8, 1957 (rejecting four-step 
four year plans).

9 Prior decisions “clearly indicated that a 12-year plan was not 
compliance with the law.” Mitchell v. Pollack, Civ. No. 708, W. D. 
Ky., February 8, 1957; Pierce v. Cabel County, S. D. W. Va., Sep­
tember 12, 1956. In other words, the District Courts did “not feel 
that the 12-year plan is moving with all deliberate speed which 
under the law we are required to do.” Mitchell v. Pollack, supra, 
September 27, 1956.

10 Desegregation has been effectuated successfully in shorter pe­
riods of time in other border urban and cultural centers: Louisville, 
Kansas City, St. Louis, Baltimore, Wilmington and the District of 
Columbia. Significantly, the school authorities in these cities re­
jected protracted plans as being inconsistent with sound admin­
istration. See, e.g., Carmichael and James, The Louisville Story 83 
(1957), where Louisville’s Superintendent stated: “Desegregating 
a grade at a time or several grades at a time obviously would in­
crease social confusion by having some children in a single family 
attend mixed schools while others remained at segregated schools. 
Administrative difficulties, too, obviously would be compounded 
with any partial program.” Cf. Brief for Appellants, etc. on Fur­
ther Reargument, pp. 17, 20-21. Brown v. Board of Education, 
349 U. S. 294.



36

federal courts. Yet, the decision below is based almost 
entirely on patently erroneous consideration of factors 
which the Brown and Cooper decisions have excluded from 
consideration. This Court should, it is respectfully sub­
mitted, grant certiorari and after hearing, vacate the judg­
ment below with orders that the inferior courts reconsider 
the record only in the light of constitutionally permissible 
factors. Such reconsideration should, of course, make pro­
vision for the fact that those who brought suit herein are 
entitled to relief in the form of desegregated education for 
themselves. Only in this way can the constitutional require­
ment of nonsegregated education—’“so fundamental and 
pervasive that it is embraced in the concept of due process 
of law,” Cooper v. Aaron, 358 U. S. 1, 19—become a reality. 
Otherwise, in the guise of paying lip service to the need for 
considering administrative factors, hostility will in reality 
assume sway, and the crucial constitutional rights here 
involved will become essentially unrealizable.

CONCLUSION
For the foregoing reasons, this Petition for a Writ 

of Certiorari should be granted.
Respectfully submitted,

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

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood  M arshall  
J ack  Greenberg  

Suite 1790 
10 Columbus Circle 
New York 19, N. Y.

Cownsel for Petitioners
E lwood H . C h ish o l m :
C onstance  B aker  M otley 
J am es M . N abrit , I I I  

Of counsel



37

APPENDIX

Opinion

UNITED STATES COURT OF APPEALS 
F oe t h e  S ix t h  C ir c u it  

Nos. 13,748, 13,749

R obert W . K ell e y , et al.,
Appellants and Cross-Appellees,

B oard oe E ducation  of t h e  C it y  of N a sh v il l e , 
D avidson C o u n ty , T e n n e s s e e , et al.,

Appellees and Cross-Appellants.

A P P E A L  FR O M  T H E  D IS T R IC T  COU RT O F T H E  U N IT E D  STA TES FOR 

T H E  M ID D LE D IS T R IC T  OF T E N N E S S E E , N A S H V IL L E  D IV ISIO N

Decided June 17, 1959.

Before A l l e n  and M cA l l ist e r , Circuit Judges, and 
C h o a te , District Judge.

M cA l l ist e r , Circuit Judge: This is an appeal from the 
judgment of the district court approving a plan of the 
Board of Education of the City of Nashville, Tennessee, 
providing for desegregation of the public schools of that 
city, commencing with the first grade, and proceeding by 
the desegregation of one additional grade a year until all 
grades in all public schools have been finally desegregated.

The background of the case is pertinent: The entry of 
the judgment approving the above plan of desegregating 
the first grade and compliance therewith by the Board of 
Education and the school authorities gave rise to violence



38

on the part of criminal elements opposed to desegrega­
tion, who wrecked a city school by bombing, and destroyed 
a synagogue by the same means. Unlawful crowds of dis­
orderly persons caused great trouble and turbulence until 
the district court restrained one Kasper and others, by 
injunction, from acts of violence, intimidation, coercion, 
and incitement. In granting the injunction, the district 
court declared that the action of the Board of Education 
in putting into effect the order and judgment of the court 
“precipitated a situation in the City of Nashville which 
very nearly approached for some several hours’ time—if 
not for several days’ time—a reign of terror, certainly a 
reign of terror among those parents having children in the 
public schools, particularly in the first grade schools. * * * 
[If] it had not been for the decisive way that the City 
authorities went about discharging their duties, the reign 
of terror which overwhelmed the City would have been 
much worse than it actually was.” It was the Board of 
Education of the City of Nashville that, when the trouble 
started, immediately pressed for the injunction against 
the acts of violence and coercion; and it was the police 
of the City of Nashville that curbed the acts of intimida­
tion and enforced public order. It is to be remarked that 
none of the illegal acts, riotous conduct, or inflammatory 
propaganda hampered either the district judge or the 
Board of Education in carrying out their duties, firmly 
and swiftly, in the face of terroristic threats and disorder 
that characterize such unlawful groups in every part of 
the country where riots, arising from any cause, have, in 
the past, occurred.

Plaintiff-appellants are Negro children who attend pub­
lic schools in Nashville, Tennessee, and their parents. On 
September 23, 1955, on behalf of themselves and others in 
like position, they filed their complaint in the district court 
against defendant-appellees, the Board of Education of 
the City of Nashville, and its members, the Superintendent



39

of Schools for Nashville, and several public school princi­
pals. In their complaint, appellants asked for a judgment 
declaring that the laws of Tennessee, requiring segrega­
tion of white and Negro children in the schools, were un­
constitutional; and they prayed for an injunction restrain­
ing appellees from refusing to admit such Negro children to 
specified schools, solely because of their race. The com­
plaint was subsequently amended to add, as party plain­
tiffs, two white children (and their parents) who had been 
denied admission to schools theretofore operated on a segre­
gated basis for Negroes.

To this complaint, appellees filed answer, admitting that 
they had denied appellant school children admission to 
the public schools closest to their homes, to which they 
had applied, solely on the basis of race; but appellees con­
ceded that the segregation laws of Tennessee must, neces­
sarily, yield to the principles declared by the Supreme 
Court in the so-called School Segregation Cases. Appel­
lees, accordingly, set forth that they intended in good 
faith to implement the decisions of the Supreme Court; 
that an Instruction Committee had been appointed by the 
Board of Education for the purpose of studying the situa­
tion; that two comprehensive surveys had been carried 
out, and two progress reports filed; and that appellees 
needed more time to formulate a plan for desegregation 
in the public schools.

Because of the nature of the relief sought in the com­
plaint, asking that the laws of Tennessee requiring school 
segregation be declared unconstitutional, the case came on 
for hearing before a three-judge court.

On the hearing before the three-judge court, it appeared 
that the Board of Education of the City of Nashville had 
proceeded to investigate and take action after the decision 
of the Supreme Court in Brown v. Board of Education, 
349 II. S. 294, which had enunciated the principles that



40

should govern the district courts in formulating decrees 
to implement its ruling that racial segregation in public 
schools is unconstitutional. Immediately after the deter­
mination in the above case, the Board of Education began 
an extensive study to determine the methods to be fol­
lowed in the school system of the City of Nashville to 
effectuate the constitutional principles declared by the 
Supreme Court. These studies included investigation of 
the programs of other cities in the matter of desegrega­
tion, an analysis and review of pertinent books and period­
icals, attendance by its representatives at work shops and 
other group meetings, and the exchange of views between 
its members and others invited to meet with its Commit­
tee.

From one of several opinions filed by the district court 
during the course of these proceedings on different aspects 
of the case, it appeared that, from the outset, the Board of 
Education frankly and openly recognized its obligation to 
maintain the school system upon a racial non-discrimina- 
tory basis, and that it had endeavored, by its careful in­
vestigation and study of the question, to find a solution 
which would accomplish the transition as soon as reason­
ably practicable consistent with the public interest and 
the efficient operation of the schools. As the court re­
marked: “The problem confronting the Board of Educa­
tion was not one which was concerned with a single school 
but with an entire school system which had been main­
tained for practically a hundred years—always on a seg­
regated basis, and having an aggregate school population 
of 27,000 students, of whom 10,000 were Negro students. 
In this situation the Board concluded that it would need 
more time to formulate a workable plan of integration.”

Such was the aspect of the case before the three-judge 
court on the complaint for a judgment to declare the Ten­
nessee laws requiring segregation of school children to be



41

in violation of the Federal Constitution. In view, how­
ever, of appellees’ concessions that the above mentioned 
Tennessee segregation laws were unconstitutional, and in 
recognition of their request for further time to formulate 
a plan of desegregation, a continuance was granted, and, 
after remanding the case to the district court, an order 
was entered dissolving the three-judge court.

At the October, 1956, term of the district court, the case 
was called. Apparently there had been widespread dis­
cussion about new laws that might be adopted by the state 
legislature, and, accordingly, appellees moved for a post­
ponement on the assumption that the 1957 Tennessee legis­
lature might enact statutes relevant to the case. The 
district court, however, denied such motion for a postpone­
ment.

On November 13, 1956, appellees submitted to the dis­
trict court a plan embodying the following provisions: 
abolition of compulsory segregation in Grade One of the 
elementary schools beginning September, 1957; the estab­
lishment of a zoning system for Grade One, based on resi­
dence, and without reference to race; the establishment 
of a transfer system allowing the transfer of white and 
Negro students who would otherwise be required to attend 
schools previously serving only members of the other race, 
and allowing the transfer of any student from a school 
where the majority of the students were of a different 
race; fixing December 31, 1957, as the date for a further 
recommendation by the Board of Education’s Instruction 
Committee as to the time and number of' grades to be in­
cluded in the next step to abolish segregation.

After a hearing, the district court held that the plan 
presented by appellees was inadequate, inasmuch as it 
did not submit a complete plan to abolish segregation in 
the public schools; and the Board of Education was, there­
fore, required to present, by December 31, 1957, a report



42

setting forth a plan to abolish segregation in the remain­
ing grades of the city school system, including a time 
schedule. The district court retained jurisdiction of the 
case and withheld the issuance of the injunction prayed 
for in the complaint, pending the filing of the new plan.

On January 9, 1957, the Governor of Tennessee ap­
peared before a joint session of the General Assembly to 
propose five bills permitting local authorities to act with 
respect to questions of racial integration in the public 
schools.

On January 25, 1957, the bills proposed by the Governor 
were finally approved by the General Assembly, and, as 
enacted, included: (1) legislation authorizing the estab­
lishment of separate schools for pupils whose parents or 
guardians voluntarily elected that they attend schools only 
with members of their own race, generally referred to as 
the School Preference Law; (2) a Pupil Assignment Act 
to provide for the assignment of pupils to public schools 
by county or city boards of education; (3) an amendment 
to the then existing law, authorizing the transfer of pupils 
between school systems; (4) authorization for the joint 
operation of school facilities; and (5) an amendatory bill 
dealing with transportation of pupils.

On August 30, 1957, the Board of Education filed a mo­
tion for leave to file a supplemental answer and counter­
claim, alleging that Chapter 11, Public Acts of Tennessee 
for 1957, authorized the establishment of separate schools 
for white and Negro children whose parents elect that 
such children attend schools with members of their own 
race; and that petitions had been received from parents 
urging the establishment of such separate schools, and 
seeking a declaration of its right to operate separate 
schools in the light of the prior judgment of the court. 
After the hearing of arguments on appellees’ motion to 
file a supplemental answer and counter-claim, the district



43

court ruled that the state statute in question was uncon­
stitutional and denied the motion of the Board of Educa­
tion to tile its supplemental answer and counter-claim.

On December 6, 1957, the Board of Education filed with 
the district court what was termed a complete plan to 
abolish segregation in all grades of the city school system, 
which contemplated the establishment of a system sub­
stantially the same as that authorized by the provision of 
the state statute which the district court had previously 
ruled was unconstitutional. By the terms of this plan, an 
annual census was to be conducted to determine which 
parents desired their children to attend schools with mem­
bers of their own race exclusively, and which parents de­
sired that their children attend schools with members of 
another race. On the basis of this poll, three types of 
schools were to be operated: schools for Negro children 
whose parents preferred that their children attend segre­
gated schools; schools for white students whose parents 
preferred that their children attend segregated schools; 
and schools for students whose parents preferred that they 
attend integrated schools.

On January 20, 1958, the Board of Education filed a 
motion to dismiss the case on the ground that the Tennes­
see Pupil Assignment Act, Chapter 13, Public Acts of 
1957, which was approved a year earlier, provided an 
adequate administrative remedy which must be exhausted 
before the rights of appellants to transfer to different 
schools could be judicially determined. After a hearing 
in open court on January 28, 1958, the district court, on 
February 18, 1958, denied the motion to dismiss, stating 
that the Board of Education was committed to a policy of 
continuance of compulsory segregation, and that the rem­
edy provided by the Pupil Assignment Act was not ad­
equate. The court further disapproved the plan of the 
Board of Education filed on December 6, 1957, holding



44

that, like Chapter 11, it failed to meet the test of consti­
tutionality because it would give the sanction of law to a 
continuation of compulsory segregation in public educa­
tion. The district court, however, continued to withhold 
the issuance of an injunction and allowed the Board ad­
ditional time until April 7, 1958, to file another plan to 
eliminate racial discrimination in its school system.

On April 7, 1958, the Board of Education filed with the 
district court a plan for the abolition of compulsory segre­
gation in Grade Two in September, 1958, and in one addi­
tional grade a year thereafter, until segregation had been 
entirely abolished in all primary, secondary, junior high 
school, and senior high school grades, retaining the zoning 
and transfer provisions contained in the plan, as thereto­
fore approved by the court.

After a hearing, the district court, on June 19, 1958, 
filed an opinion approving the Board’s plan. On July 17, 
1958, findings of fact and conclusions of law were entered 
by the district court, in accordance with its opinion, and 
a judgment was entered in which the final plan of the 
Board of Education was approved in its entirety and ap­
pellants’ prayer for injunctive relief was denied. The dis­
trict court furthermore retained jurisdiction of the case 
during the entire period of transition.

It is contended by appellants that the district court 
erred in its judgment in that the plan for desegregation 
of all the grades of all of the public schools of Nashville, 
as approved by the district court, violates the Constitution, 
as declared by the Supreme Court, for the following rea­
sons :

(a) That the plan of the Board of Education, in­
stead of providing for immediate desegregation of all 
grades of all public schools—which it is claimed by 
appellants is required by law—extended over too long 
a period, and did not comply with the direction of the



45

Supreme Court that a district court require a prompt 
and reasonable start toward integration, and that it 
take such action as is necessary to bring about the 
end of segregation in the public schools with all de­
liberate speed.

(b) That the plan permitting every student, within 
its provisions, to attend the school designated for the 
geographic zone of his residence, and, at the same 
time, permitting the parents of such student to apply 
for his transfer, where he is one of a racial minority 
in his zone—or would be required by the zoning to 
attend a school which previously served only students 
of the other race-—is a deprivation of such child’s con­
stitutional rights.

On the other hand, it is contended by the Board of Edu­
cation and the other appellees and cross-appellants, that 
the district court erred in holding that the Fourteenth 
Amendment was violated by a plan based on a statute of 
the State of Tennessee, enacted after this controversy 
arose, in which local school boards were authorized to pro­
vide separate segregated schools for both white and Negro 
children whose parents voluntarily elected that their chil­
dren attend such segregated schools with members of their 
own race.

Full implementation of the constitutional principles in­
volved in this case “require [s] solution of varied local 
school problems. School authorities have the primary re­
sponsibility for elucidating, assessing, and solving these 
problems * * Brown v. Board of Education, 349 U. S. 
294, 299. Therefore, a consideration of the school prob­
lems confronted by the Board of Education of the City of 
Nashville, and the solution arrived at by the Board, is 
necessary to a determination of the controversy before us.



46

As above mentioned, at the time of the hearing in the 
district court, the aggregate public school population of 
Nashville was 27,000 students, of whom 10,000 were Negro 
students. There were 38 primary and elementary schools, 
and 8 senior high schools. Thirteen of the primary and 
elementally schools are operated for Negro students. Two 
of the eight senior high schools are operated for Negro 
students. The Nashville schools employ 1057 principals 
and teachers, of whom 702 are white teachers, and 355 are 
Negro teachers. First grade teachers number 115, of whom 
73 are white, and 42 are Negro teachers. There is no dif­
ference in the salary schedules of Negro teachers and 
white teachers; and, insofar as physical facilities are con­
cerned, the public schools of Nashville operated for Negro 
students are substantially equal to those operated for 
white students.

If an order for total desegregation were entered by the 
court, every one of the public schools in the city would be 
affected, although, as to some of the schools, there would 
probably be one Negro child—or only a few Negro chil­
dren—in such school zone; and as to others, the same sit­
uation applies with regard to white children. The enroll­
ment of all students in Grade One is 12% of the entire 
school population of Nashville and consists of approx­
imately 3,400 students, of whom 1,400 are Negroes—a ratio 
of more than 41% of Negro students in the first grade. 
Here, however, comes into play a factor that complicates 
the desegregation of schools—residential segregation, one 
facet of the problem that, like school segregation and 
other discrimination, results in what might be termed 
economic segregation, a virtual denial of equal opportu­
nity of work, employment, living conditions, advancement, 
and income, existing in varying degrees, in every state of 
the union. In the instant case, because of residential seg­
regation, only 115 of the 1,400 Negro students in the first



47

grade were eligible to attend schools previously attended 
only by white students, under the zoning system based on 
residence; and only 55 of the 2,000 white students in the 
first grade were eligible to attend schools previously at­
tended only by Negro students. All 55 of the white stu­
dents were, through their parents, granted transfers to 
white schools, and 105 of the 115 Negro students were, 
through their parents, granted transfers to Negro schools. 
In cities having a large Negro population, Negroes usually 
live, as a group, in certain areas, largely because of the 
fact that residential restrictions, in the way of restrictive 
covenants running with the land, have, for many years, 
made it impossible for them to live elsewhere, and, as a 
result, especially in cities of the North, they have been 
confined to rundown residential areas with the poorest 
accommodations, at high rents. This case is not concerned 
with that problem, however, but reference is made to the 
fact as indicating the reason why schools in certain areas 
are attended wholly by Negro children, both in states 
where, heretofore, segregation has been sanctioned by 
state law, as well as in states where, theoretically, segre­
gation has been condemned.

Based on the zones established by the Board of Educa­
tion, then, there would probably, at the present time, be 
Negro children in every school in Nashville, although when 
the zones were first established, there were, perhaps, ten 
school zones that did not have a single Negro child in 
them. The intervening change is due to the continually 
shifting population. After the order of desegregation in 
the instant case, there were six of the elementary schools 
that had both white and Negro children. One of such 
schools had one Negro child, but on the first day of in­
tegration, that school was bombed and destroyed by crim­
inal elements, leaving five schools with children of both 
races. However, as above suggested, if the parents of



48

Negro students had not asked for the transfer of their 
children to schools in which the predominant number of 
students was Negro, there would have been several more 
schools with students of both races.

After the Board of Education had desegregated Grade 
One, and the district court had required that a plan for 
future desegregation in the other grades be submitted, the 
Board sought the recommendations of the school princi­
pals, and, with this objective, the Superintendent of Schools 
of the City of Nashville called together all of the princi­
pals of the 38 elementary schools, announcing to them 
the necessity of submitting a plan for desegregating the 
remaining eleven grades. He commenced by stating that 
he had great respect for their judgment; that they were 
close to the entire matter; that they were interested in the 
children; and that he would like to have their suggestions 
as to the best plan to be adopted.

The principals appointed a committee of themselves to 
draw up a questionnaire, which all principals were invited 
to answer, without disclosing their names. The question­
naires were, accordingly, answered by the principals, and 
thereafter submitted to the Superintendent of Schools. 
In these replies to the questionnaires, one principal advo­
cated immediate desegregation of all grades in all schools. 
Thirty-seven principals advocated a gradual plan, or a 
year-by-year plan. The plan determined upon, after Grade 
One was desegregated, was to desegregate a grade a year, 
commencing with the second grade and continuing year 
by year until the entire twelve grades had been desegre­
gated. This plan was the one which the Superintendent 
of Schools subsequently agreed was the best plan, and was 
the one adopted by the Board of Education, which was sub­
mitted to the district court and approved by it.

The reasons why the school authorities supported this 
plan and considered it the best, under the circumstances,



49

are pertinent to the determination of the issues before us, 
inasmuch as the solution of such school problems is the 
primary responsibility of the local school authorities. 
Brown v. Board of Education, supra.

In his testimony as to the reasons why he favored the 
grade-by-grade plan of desegregation, the Superintendent 
of Schools declared, preliminary to an exposition of his 
views, that the school authorities had considerable dif­
ficulty, which was accompanied by confusion and disorder, 
when the plan was put into effect, in spite of the fact that 
they did everything they could to avoid it; that advance 
registrations were held “so that when the little first- 
graders registered, there wouldn’t be any upper classmen 
or their parents there. We arranged so that the little 
Negro children and their parents would not have to go to 
a school where the majority of the folk were white, to 
get their transfers. We made the same arrangement with 
regard to the white children who had to get transfers. We 
did everything we knew to do, and in spite of everything 
we could do, we lost about $70,000 worth of the Hattie 
Cotton building [through bombing], and a great many 
little children whose first experience in school should have 
been one of security and harmony and joy found them­
selves faced with a situation where they were subjected 
to dread and fright and, in many cases, actual danger. I 
think that the effect of that sort of thing on a child is 
something that should be avoided # * and I think the
year-by-year plan * * * will involve less of this damage to 
the children than any other plan we could propose. * * # 
Segregation by race in the public schools of Nashville 
(right or wrong) is a practice of long standing, and to 
change it goes counter to the feelings of a great many 
people. There are a lot of adjustments to be made on the 
part of the Negro children (it’s something they’re not 
accustomed to), on the part of the white children (it’s



50

something they’re not accustomed to), on the part of the 
parents, and on the part of teachers. I t’s something none 
of us are accustomed to. It involves more difficulty in 
adjustment than someone just looking on from the sidelines 
would recognize or realize, and I firmly believe that this 
adjustment can be made with less friction, it can be made 
with less disadvantage to everybody concerned, it can 
be made more smoothly, it can be made with less difficulty, 
psychologically, educationally, socially, arid otherwise if 
it is done slowly. This plan, of course, proposes that it 
be done slowly. * * * I assume that the white race wants 
to remain a white race and the Negro race wants to remain 
a Negro race as far as race is concerned. The two races 
live. together and work together in the same city and the 
same community. I t’s very important that there be be­
tween the two races and between individuals representing 
the two races a relationship of friendliness, cooperation, 
and respect such as I think we have had in the past to 
a large degree and which I think has improved a great 
deal during the past twenty or thirty years.”

Another reason why the Superintendent favored the 
plan was that it provided for a more homogeneous group­
ing of students. He stated that in such a homogeneous 
grouping, consideration was given to several factors, other 
than race. “In fact, I wouldn’t consider that as the princi­
pal factor that I had in mind.” Eather, he said, it was a 
matter of background, of aptitudes, of achievement. The 
matter of homogeneous grouping was something that they 
had been dealing with in Nashville for a long time before 
the matter of desegregation arose, and would always con­
tinue to be a problem. But the Superintendent felt that 
the plan of desegregation approved by the district court 
would make for a more homogeneous grouping of students, 
which educators felt was a wise thing to achieve. He 
stated that they could not always have students of just the



51

same aptitude, the same social background, the same 
chronological age, and the same achievement level; but 
that they would be further from having such homogeneity 
if there were quick desegregation. The principal person, 
he declared, whose welfare is to be considered in the mat­
ter of homogeneous grouping, is the student. If desegre­
gation occurred immediately, he went on, there would be 
a situation where a group of students, or individual stu­
dents, would be competing with others at a disadvantage, 
and a number of students would have to be held back be­
cause of others who were not on the same achievement 
plane with them.

The Acting Chairman of the School Board of the City 
of Nashville also testified as to the plan approved by the 
district court, and outlined various plans considered by the 
Board, and the reasons favoring the grade-by-grade plan. 
He stated that the Board invited various groups to appear 
before it; that there were also extremists of both sides 
who presented their views; that organizations sponsored 
by groups outside Nashville gave advice and, as experts, 
sought to give professional and expert assistance; that they 
were far apart in their views; and that the main concern 
of the Board was that “the children” whom “everybody 
had been forgetting, were the ones to be educated, and also 
we are concerned about obeying the laws of the land.” He 
told about the difficulties encountered when the first grade 
was desegregated; of the disorders at the schools when 
every police officer on the force was called into service, 
“and it was still pretty rough.” The Chairman had a son 
who was starting in the first grade. He stated: “I went 
through the crowd to take my child to school, and if I 
hadn’t been on the Board, he wouldn’t have gone back the 
next day, because it wasn’t the right condition for a child 
to go to school. * * * The next day there wasn’t any­
body there but about one or two boys, mine and another



52

boy, and a little colored boy. That’s just about all they 
had the rest of the week, so I did not see any use in 
staying there. * * # They got up as high as fifteen or 
twenty during the [next] week.” The Chairman felt that 
with the year-by-year plan, the opposition would be less 
each year the plan proceeded. He stated that, while the 
main trouble in desegregation came from outside the 
school, nevertheless there was tension affecting the teach­
ers; but that in spite of the opposition of certain white 
parents, the teachers were able to handle the situation. It 
was, he said, a new experience for the teacher. She did 
not want the white parents “jumping on her neck,” and 
she didn’t want to hurt the little colored boy in the class; 
but the size of the problem had been such that the teach­
ers had been able to handle it. He felt that the plan, 
starting with the first grade, and continuing each year up 
another grade, would be successful. The Negro and white 
children would already be a part of the class when it went 
into the higher grade. They would keep their achieve­
ment level as they went through their school years; they 
would have gone through the same educational experi­
ences, from the first grade up to the twelfth grade, year by 
year. For these reasons, the Chairman felt that the year- 
by-year plan was the best that could be devised. He stated 
that consideration had been given to a plan to desegregate 
first the twelfth grade, then the eleventh, and so down, but 
the Superintendent had expressed the opinion that such a 
plan was educationally unsound; and the Board felt that, 
because of the transfer provisions of the plan, there would 
be no desegregation whatever in those grades, and that 
such a plan “would be trying to get around the court 
order, and we were not trying to do that. We were trying 
to abide by the court ruling, and not try to get around it. 
So we switched ends then and started to try to work out 
the best we could from an educational standpoint.”



53

Another witness for appellees was Miss Mary Brent, a 
teacher in the Nashville schools for twenty-four years, 
and a principal for nineteen years. She told of the first 
two Negro children in the first grade of the Glenn School, 
of which she is principal, and of her views in support of 
the year-by-year plan of desegregation. The educational 
progress of one of the Negro children, during her first year 
with white children, had been exceptionally good. For the 
other, the work had been hard because she was one of the 
youngest in the age group in the first grade. They both 
made satisfactory progress, however, and as far as the 
aptitudes of the two Negro students were concerned, there 
was no difference as compared to the white students. The 
witness was the principal on duty when disturbances and 
violence occurred at the beginning of desegregation; and 
since that time, up to the hearing in the district court, 
tension, she said, had continued to exist. The two Negro 
children were brought to school each day, and afterward, 
taken home by one of the parents. They were well ac­
cepted by the white children in the first grade. Small 
children, she stated, have no racial prejudice; but this was 
not true of older children in the fourth or fifth grades, at 
the time the first grade was desegregated, when some 
prejudice was manifested by older students, and trouble 
occurred. The teachers during the first six weeks were 
subjected to criticism and arguments from parents coming 
to the school, and later on, by abusive and vulgar anony­
mous telephone calls. However, Miss Brent, speaking as 
a principal, felt that the year-by-year plan was the only 
one they could accept and make work in Nashville “right 
now.” “If people,” she declared, “had been at Glenn 
School as I was during the last of August and most all of 
September last year—in 1957, they would realize that it 
was not an easy thing to do. Any radical change is bound 
to bring chaos, and this was certainly a radical change.”



54

“Now, in an educational institution,” Miss Brent testi­
fied, “teachers cannot do their best in the midst of excite­
ment and turmoil and upheaval. I feel that if we can do 
this and get it over in people’s minds that it is the law of 
the land, that we are trying to do our best to accomplish 
the purpose that the Supreme Court—the thing that the 
Supreme Court has set up for us to do, if we do it gradu­
ally, let them get accustomed to it gradually, I believe we 
will have a much better chance of succeeding in the end.” 

Miss Brent further observed, in her testimony: “To me, 
integration and desegregation are not the same thing, and 
we would like very much at the end of 11 years, or how­
ever many years it takes, to feel that the schools are truly 
integrated, that it’s not just a question of their being 
desegregated. That feeling will have to come from the 
hearts of people. It cannot be forced, and it certainly 
cannot be thrust upon them in a hurry. In the second 
place, I feel that little children, for instance, these children 
in the first grade, now are absolutely accustomed to hav­
ing the Negro and the white child right there together. 
They play together. They eat together. Everything goes 
along just the same. There’s no difference whatsoever 
made. Well, if that group moves on next year to the sec­
ond grade, they will still be accustomed to that. The chil­
dren that are coming in in the first grade naturally expect 
their group to be desegregated. If you jump and begin 
to take children in higher grades, you are going to double 
your trouble. I firmly believe that it is the only plan. 
* * * We firmly believe now that they have a foundation 
that will prepare them to go along into the second grade 
with the white children. They will the next year be able 
to progress. There will be no differences in their (shall 
we say) background. We feel that educationally it will be 
the best thing for the child, and, after all, that is what we 
are concerned with. We leave the outside trouble to the 
policemen.”



55

W. A. Bass, Superintendent of Schools of Nashville, 
when this suit began, testified as to the reasons that im­
pelled him to support the year-by-year plan, and further 
discussed the difficulties in securing teacher cooperation, 
as well as questions of teacher recruitment, and achieve­
ment levels of the students.

As reasons for supporting the Board’s plan, Mr. Bass 
said: “I think I have two reasons I should like to state: 
Number one is the—is the distinct recognition of the fact 
that the children grow from what they are to what they 
subsequently become. They don’t become what they do 
become, immediately and at once. And so I based my 
recommendation on that fact, that adjustment to an en­
tirely new community problem, such as is involved in the 
change of attitude, the change of practice, the change in 
tradition that this or that plan of desegregation involves— 
I reached the conclusion that basing any decision upon the 
natural growth and development of children would be the 
only safe and sound approach to the problem.

“Another problem: Schools are not—not just school 
buildings and just school children. They have teachers 
there. I took into account the teacher problem and experi­
ence I had had with teachers.

“When I came to Nashville as Superintendent of Schools 
(and this fact can be established in the mouths of many 
witnesses), I called a meeting of the English teachers in 
the junior- and senior-high-school groups. It had never 
occurred to me that I would have any difficulty because as 
State Supervisor of High Schools I had held conferences 
all over the state involving both white and Negro teachers 
primarily in the county schools.

“Well, the day came for the meeting I had personally 
called. I was in my office gathering up some material I 
was taking to the meeting. At that time, our Negro schools 
were opened ten minutes earlier than the white, and as a



56

consequence they dismissed ten minutes earlier. Our Negro 
teachers arrived on the scene ten minutes ahead of the 
white teachers. They went in the room and in a normal 
manner took their seats in the room.

“Just before I started from my office down to the meet­
ing place, the Principal came down all excited. He said: 
‘The white teachers won’t go in. The Negro teachers have 
taken their places about over the room, and they won’t go 
in and sit by them.’ That was the coldest, most unsatis­
factory educational meeting I ever presided over. * * * 
And so I had to change my tactics, and I started with the 
principals and supervisors. We had mixed meetings and 
we finally got common understanding, but it took 10 years 
to get that done where the teachers and principals and 
supervisors would sit down and talk in confidence. * * * 
The question, it seems to me, is one of law, what is the 
best way to comply with the law of the United States as 
expressed through the Supreme Court. And—I’m in favor 
of the Board of Education carrying it out. I know what 
it is. I have read it over and over, every word of it, and 
I gave considerable thought to that question of ‘all delib­
erate speed.’ Now, we deliberated (and I think we were 
entitled under the Supreme Court’s decision to be deliber­
ate) about this matter. We are not just trying to stand 
in the way. We are trying to determine the scope that we 
can take and do the job effectively. * * * I have tried as 
the Superintendent of the schools, through the principals 
and teachers at my disposal, to teach people to respect the 
law, and that I maintain today. * * * This business of 
teaching and working through teachers is not just a legal 
matter. I t’s a spiritual matter at base, and unless we can 
develop that rapport which a teaching group must have 
to touch the lives of children, we are not a successful school 
system, however good our buildings may be or whatever 
other physical features we may have. # * * I think the



57

teachers can’t absorb too big a piece of this problem at one 
time, and I think the community will gradually see that 
their first impressions were erroneous and that this prob­
lem can be handled systematically with mutual benefit.” 
The witness further testified: “In this community, con­
sisting of the County and City Schools, we need this year 
three hundred new teachers. It is a problem to get ele­
mentary school teachers. I t’s my job as Superintendent 
of Schools to interview all applicants for teaching posi­
tions in the Nashville Schools. As School Superintendent 
and as interviewer for the Board, I have discovered that 
many teachers who might offer their services as teachers 
decline to teach in a desegregated school system. Now, it’s 
difficult without this problem being raised. It will be more 
difficult otherwise. The Board knows that. That’s what 
I have reference to by teacher recruitment.” He referred 
to a difference in the achievement level of pupils in the 
same grade and stated that, on the basis of evidence—test 
results—the teachers know that, in the field of arithmetic, 
for example, in the eighth grade, the level of achievement 
of the white children is two and a half years above that of 
the Negro children, and that that constituted a teaching 
problem. He stated that the schools’ psychological testing 
service in 1954-55 released its publication showing that 
fact, and other facts relating to it; that the difference in 
the achievement level of the Negro and white students 
varied in certain subjects, but showed, in the sixth grade, 
a difference of about two years and some months, and a 
difference in the achievement level, in the fourth grade, 
of about one year.

With regard to the foregoing, it is to be noted that Dr. 
Henry H. Hill, President of George Peabody College for 
Teachers, a former Superintendent of Schools in Pitts­
burgh, Pennsylvania, as well as in Lexington, Kentucky, 
and Walnut Ridge, Arkansas, and Dean of the University



58

of Kentucky, called as an expert in education on behalf of 
appellees, stated: “Children vary widely apart in their 
ability and willingness to learn, and that is not a racial 
problem; it’s just something everybody knows but few 
people appreciate the fact; that in the fifth grade, for 
example, there will be a range of reading ability possibly 
from the second grade to the eighth, certainly from the 
third to the seventh, in an average unselected fifth grade, 
whether white or Negro, or white and Negro, as far as I 
know, the variations would only be a little wider. It 
depends, of course, on the community.

“I would like to point out in this connection that in de­
segregation in the North, at least in the areas that I am 
most familiar with, there are all Negro and all white 
schools, or substantially so. There are all Negro high 
schools in Chicago, for example; there are in Detroit; and 
there are in New York, due as much as anything else, not 
to the fact of segregation or all Negro or all white com­
pulsory, but to the fact that Public Schools, if they are 
well located, are located in the middle of the children, 
where the children live. So, if you have a well located 
school in Pittsburgh, for example, in the Hill District, 
which is largely Negro, you would naturally expect to find 
a considerable number, mostly Negroes, in that school 
even though you have no legal segregation. In other- 
words, I think, and I ’m no authority here at all and don’t 
pretend to be an authority anywhere, I think residential 
movements set the basic pattern.”

The plan approved by the district court had been 
adopted by a vote of all of the members of the Board of 
Education, with the exception of Mr. Coyness L. Ennix, 
the sole Negro member, who opposed it on the ground that 
it unreasonably delayed full desegregation. As indicating 
one of the complex cross-currents of viewpoint, one of the 
members of the Board, Mr. 0. B. Hofstetter, a witness



59

called by appellants, and a member of the Roman Catholic 
Church, which had completely desegregated all of its ele­
mentary and high schools in Nashville three years before 
the judgment of the district court in this case, however, 
favored and supported the Board’s plan of grade-by-grade 
desegregation, in the public schools.

As stated by the district court, the plan of the Board to 
desegregate the schools one grade each year was strongly 
supported by the first four witnesses heretofore men­
tioned; and the court declared that there could be no 
doubt that the viewT of these witnesses, based upon their 
years of experience in education and upon their intimate 
knowledge of conditions in Nashville, disclosed a sincere 
belief that a sudden or abrupt transition to a desegregated 
basis would engender administrative problems of such 
complexity and magnitude as to undermine seriously and 
impair the educational system of the city, and that they 
supported the plan of the Board of Education primarily 
because they felt that it offered the best opportunity to 
bring about full desegregation harmoniously and without 
serious disruption of the educational program of the city.

Opposed to the views of the witnesses for appellees were 
Dr. Herman H. Long, Dr. Preston Valien, Mrs. Preston 
Valien, and Mr. Ennix. There was no question that Dr. 
Long, Dr. Valien, and Mrs. Valien were experts in the 
field of education, and particularly with respect to the 
question of desegregation, and, as mentioned, Mr. Ennix, 
himself, was a member of the Board of Education. Dr. 
Long was a graduate of Talladega College in Alabama, re­
ceived his master’s degree from Hartford Seminary 
Foundation, and his doctorate degree in psychology from 
the University of Michigan. He had taught in Miles Col­
lege, where he was Dean of Instruction. At the time he 
testified, he was associated with the Department of Race 
Relations at Fisk University, in Nashville. Although he



60

had no direct experience as a teacher with the problem of 
desegregation, he had, nevertheless, assisted in surveys re­
lating generally to practices affecting the status of minor­
ity groups in the fields of education, housing, employment, 
social welfare services, hospital services, and the like. In 
a survey in connection with education in Baltimore, where 
he was one of those invited to participate by the Gover­
nor’s Interracial Commission, and the Mayor’s Interracial 
Commission, the teachers of Baltimore were asked whether 
they would have any difficulties in teaching Negro and 
white children in the same class, and about 30 per cent of 
the teachers replied that they would not be able success­
fully to carry out such teaching assignments; but the fol­
lowing term, the schools were integrated, and the teachers 
were able fairly successfully to teach both Negro and 
white children in the same class. With regard to the 
Nashville plan, Dr. Long said: “I am afraid that a large 
number of people tend to believe that a special kind of 
plan used by a school board to desegregate the schools is 
the final test of whether or not you will have effective 
desegregation, and the assumption seems to be that if the 
plan protracts the process of change over a long period of 
years (I think this is—is basic to the Nashville proposal) 
that you will have a smoother plan of operation and you 
will have less difficulty. I believe that this assumption 
isn’t entirely sound in looking at the experience of other 
school systems and the experiences I have had generally 
in the field of race relations for several reasons: One rea­
son is that any proposed change in this field as well as in 
others takes place within a climate of opinion and a cli­
mate of expectation that is created by the kind of policies 
which a Board of Education or which any other board, 
whether it is a board of—of an industry, creates in the 
public mind. I think it has been fairly well shown that 
when policies enacted by such boards are vacillating poli­



61

cies (that is, they do not proceed with clear pronunciation 
of purpose and without qualification) that when the proc­
esses of change in the school system are attempted, you 
get resistance because the public does not expect that the 
board means what it says in many of these instances.”

Dr. Long further testified: “ [In the Nashville plan] 
one of the assumptions is that if you minimize the change, 
you reduce the resistance. We need to analyze the char­
acter of the resistance, and if we look at our experience in 
Nashville last year, the people who constituted the pro­
testers and the mobs, the people who were arrested and 
fined, either fined in court or put under injunction in the 
court, expressed an attitude which was completely unrea­
soning as to any kind of change. I think the pattern that 
is expressing itself is one in which any kind of change 
toward desegregating schools or any other institutions 
will meet resistance on the part of this element of the pop­
ulation. The merits of whether or not the change is done 
in 12 years or whether it’s done in one year doesn’t enter 
into this kind of resistance effort because it is fairly com­
pletely unreasoning and inconsiderate effort. I t’s not an 
effort to meet the issues in terms of any kind of statesman­
ship. * * # You have now out of the nine states—of the 17 
states that were originally operating on the basis of segre­
gated schools, you have nine of those states which have 
begun desegregation. You have over 300,000 or 350,000 
Negro children in integrated schools within three years’ 
time. You have a complete—almost complete desegrega­
tion of the school systems of West Virginia. All of these 
instances were where people had the same attitude toward 
desegregation that I presume we have in Nashville to a 
more or less degree.”

On cross examination, Dr. Long, after stating that he 
received the Southern School News every month, was 
asked whether he agreed with the statement, in the March,



62

1958, issue, of Congressman Adam Clayton Powell, when 
he declared: “I don’t believe there should be immediate 
integration all over the South. But there should be a be­
ginning, a plan in sensitive areas. Integration should 
start in kindergartens. In this manner, the problem could 
be eliminated in 12 years.” When counsel asked: “Now I 
believe you take issue with that viewpoint?”, Dr. Long’s 
reply was: “I take issue with the viewpoint as-—as—It 
expresses a general philosophy which—with which I con­
cur. I take issue with protracting school desegregation 
over a 12-year period. I don’t think that it solves—I think 
I gave the reasons why. I think it’s—It’s the hard way 
around the problem rather than the easy way around.” 

Dr. Preston Valien, a professor at Fisk University in 
Nashville for twenty years, had, with his wife, engaged in 
studies of desegregated situations in many places, having 
served as consultants at the University of Kentucky, with 
teachers at Louisville and Lexington. They had made 
studies of Clinton, Tennessee, Little Rock, Arkansas, 
Cairo, Illinois, and St. Louis, Missouri. He considered 
that the Nashville plan was not educationally sound; that 
a whole generation of public-school Negro students, be­
ginning, at that time, with those in the second grade, 
“would be denied the right to have their constitutional 
rights determined, under this particular plan” ; that the 
situation was calculated to engender tension when there 
were families in which some children could not go to the 
same school; that the teachers would be divided into those 
opposed to teaching desegregated classes, and those not 
so opposed; that such a plan usually engendered confusion 
and tension. Dr. Valien stated that “when a large num­
ber of people are involved and intimately concerned with 
a particular social-change process, the transition is likely 
to be smoother than when it focuses on a smaller number 
and leaves a large crowd who act as spectators and not



63

concerned in the situation.” The witness felt that the 
schools should be desegregated “on the basis of elemen­
tary schools one period, high schools in another period, 
and have the junior high school fitting in there some­
where.” He advocated the desegregation of each one of 
these units at a time.

Mrs. Preston Valien, an assistant professor of sociology, 
with extensive graduate study, has participated in most 
of the desegregation research that has been done in recent 
years, in various cities and states. She considered that 
all experience indicates that where desegregation was done 
year by year, it merely led to tension; that where desegre­
gation has been done rapidly and completely, the amount 
of tension is minimized. She stated: “I think that the 
longer Nashville waits, the less likely it’s going to be able 
to do its job as efficiently and as thoroughly and without 
less tension than it would have earlier because I think in­
creasingly the longer we wait, the more difficulty and the 
more tension we vie. And that’s in the nature of social 
change. That always happens. * * * I want to introduce 
another dimension, though, that I think hasn’t been said. 
I think we have done an awful lot of discussion with ref­
erence to what this does for Negroes. As a social scien­
tist, I  am concerned about children. I ’m concerned about 
what this does for all people. And in every community 
where I have been, the one thing that I want to report to 
this audience is the number of happy white mothers and 
white children who say that for once T can enter as a 
citizen and feel whole and complete. No longer do I feel 
guilty.’ And one of the things that we have to face, and 
that is that we are now moving into a world in which 
there is no place really for the perpetuation of the kind 
of society which we have. The largest percentage of our 
people over this world are now colored people. It is un­
fair to children to give them a false conception of the 
world in which we now live.”























74

students, who would otherwise be required to attend 
schools previously serving only members of the other race; 
and allowing the voluntary transfer of any student from a 
school where the majority of the students are of a differ­
ent race. This provision does not fall within the ban of 
the maintenance of segregated public schools by cities 
where permitted—though not required—by statute, such as 
was condemned by the Supreme Court in Brown v. Board 
of Education, 347 U. S. 483. The district court, in the in­
stant case, considered that, in accordance with the reason­
ing in Briggs v. Elliott, 133 F. Supp. 776 (D. C. S. C.), the 
transfer provisions did not violate the equal protection 
clause of the Fourteenth Amendment. In the Briggs case, 
it was declared, as we have heretofore mentioned, that the 
Supreme Court has not decided that the states must de­
prive persons of the right of choosing what schools they 
attend, but that all it has decided is that a state may not 
deny to any person, on account of race, the right to attend 
any school that it maintains. “This,” said the court, as 
we have previously quoted, on another aspect of this case, 
“under the decision of the Supreme Court, the state may 
not do directly or indirectly; but if the schools which it 
maintains are open to children of all races, no violation 
of the Constitution is involved even though the children 
of different races attend different schools. * * * ” Appel­
lants say that the transfer plan is only a scheme to evade 
the decisions of the Supreme Court. In Cooper v. Aaron, 
358 U. S. 1, 17, it was said: “In short, the constitutional 
rights of children not to be discriminated against in school 
admission on grounds of race or color, declared by this 
court in the Brown case, can neither be nullified openly 
and directly by state legislators or state executive or 
judicial officers, nor nullified indirectly by them through 
evasive schemes for segregation whether attempted ‘in­
geniously or ingenuously.’ ” There is no evidence before



75

us that the transfer plan is an evasive scheme for segre­
gation. If the child is free to attend an integrated school, 
and his parents voluntarily choose a school where only one 
race attends, he is not being deprived of his constitutional 
rights. It is conceivable that the parent may have made 
the choice from a variety of reasons—concern that his 
child might otherwise not be treated in a kindly way; per­
sonal fear of some kind of economic reprisal; or a feeling 
that the child’s life will be more harmonious with mem­
bers of his own race. In common justice, the choice should 
be a free choice, uninfluenced by fear of injury, physical 
or economic, or by anxieties on the part of a child or his 
parents. The choice, provided in the plan of the Board, is, 
in law, a free and voluntary choice. It is the denial of the 
right to attend a nonsegregated school that violates the 
child’s constitutional rights. It is the exclusion of chil­
dren from such a school that “generates a feeling of in­
feriority as to their status in the community that may af­
fect their hearts and minds in a way unlikely ever to be 
undone,” as observed in Brown v. Board of Education, 347 
U. S. 483, 494. Such may be the tragic result, when chil­
dren realize that society is imposing a restriction upon 
them because of their race or color. The Supreme Court 
remarked in the foregoing case that the effect of the 
separation of students because of race was “well stated” 
by the district court in the case, then on review, when it 
declared:

“Segregation of white and colored children in pub­
lic schools has a detrimental effect upon the colored 
children. The impact is greater when it has the sanc­
tion of law; for the policy of separating the races is 
usually interpreted as denoting the inferiority of the 
Negro group. A sense of inferiority affects the mo­
tivation of the child to learn. Segregation with the 
sanction of law, therefore, has a tendency to [retard]



76

the educational and mental development of Negro 
children and to deprive them of some of the benefits 
they would receive in a racial [ly] integrated school 
system.”

Nevertheless, as stated in Brown v. Board of Education, 
139 F. Supp. 469, 470, subsequent to the decision of the 
Supreme Court in the prior Brown case:

“Desegregation does not mean that there must be 
intermingling of the races in all school districts. It 
means only that they may not be prevented from in­
termingling or going to school together because of 
race or color.

“If it is a fact, as we understand it is, with respect 
to Buchanan School that the district is inhabited by 
colored students, no violation of any constitutional 
right results because they are compelled to attend the 
school in the district in which they live.”

While, in the instant case, the parent makes the choice 
for the small child, that is the only reasonable method, if 
such a choice may be made. We see no deprivation of 
right, under the evidence before us. Doubtlessly, fewer 
Negro children, or their parents, will avail themselves of 
the transfer provisions, as grade after grade becomes in­
tegrated, and more Negro children attend such desegre­
gated schools as time goes on. We are not informed by 
the record how much such attendance has increased with 
the additional desegregation that has taken place since the 
hearing. But if it should appear, upon a showing, that 
there are impediments to the exercise of a free choice, and 
that a change should be made in the plan to carry out, in 
good faith, and with every safeguard to the children’s 
rights, the mandate of the Supreme Court, the district 
court, having retained jurisdiction during the entire period



77

of the process of desegregation under the Board’s plan, 
shall make such modification in its decree as is just and 
proper. On the record before us, the judgment of the 
district court does not deprive any of the children of equal 
protection under the Fourteenth Amendment.

We consider, then, the issue that is raised upon cross ap­
peal: whether the Fourteenth Amendment is violated by 
a plan, authorized by state statute, in which local school 
boards may provide separate schools for Negro and white 
children, whose parents voluntarily elect that such chil­
dren attend school with members of their own race.

The district court held that the statute authorizing the 
maintenance of separate segregated schools was antago­
nistic to the principles declared by the Supreme Court in 
Brown v. Board of Education, 347 U. 8. 483, and Brown v. 
Board of Education, 349 IT. S. 294, and, therefore, was un­
constitutional. The district court referred to the decisions 
in the above cases in which it was held that segregation 
of white and Negro children in the public schools of the 
state, solely on the basis of race, pursuant to state laws 
permitting or requiring such segregation in segregated 
schools, denied the Negro children the equal protection of 
the laws guaranteed by the Fourteenth Amendment. The 
district court held that the state statute in question was in­
valid in providing for separate schools for white and 
Negro children whose parents or guardians voluntarily 
elect that such children attend schools with members of 
their own race; that the statute providing for a census 
and for separate schools for Negro children, whose parents 
so elected, would be contrary to the Constitution since 
such schools would not only be separate, but separated be­
cause of race; that the separation, once made, would be 
compulsory; and that after such election, no Negro student 
would have the right to attend a school for white children, 
solely because of his race, nor could any white child, after



78

an election, ever attend a school which was attended by 
Negro children. The Constitution prohibits the states 
from maintaining racially segregated public schools. 
Bolling v. Sharpe, 347 U. S. 497, 500.

The argument that the statute contemplated voluntary 
action was answered by the district court in its opinion by 
the statement that the statute provided for the maintenance 
of segregated schools for Negro and white children, from 
which the children of the other race were excluded; that 
the statute further provided that, after a census of par­
ents of school children had been taken, and preferences 
for such segregated schools ascertained, those schools 
would be required to be maintained thereafter as separate 
and segregated schools; and that after an election had 
once been made, it was binding on the child for the future. 
The court pointed out that the transfer system, which it 
had approved, giving Negro students and white students 
an equal right to transfer from one school to another, was 
a limited right, and the court felt that it was a reason­
able provision. It did not envisage the maintenance of 
schools from which students could be excluded by the au­
thorities, because of their race.

The district court held that it was unnecessary to refer 
the issue of the constitutionality of the statute to a three- 
judge court, since the statute in question was patently and 
manifestly unconstitutional on its face, in the light of the 
decision of the Supreme Court in the two Brown cases 
above cited; and we concur with the determination of the 
district court in this regard.

The final issue is raised by the brief and argument of 
the amicus curiae: whether, absent appropriate legislation 
by Congress, for the enforcement of the integration of 
races in the public schools of the several states, the courts 
of the United States have power to compel, by court order, 
the integration of the races in such schools.



79

The contentions advanced in this argument resolve them­
selves into the proposition that, as the amicus curiae states 
it, “The decision of the Brown case does not rise to the 
quality of ‘Law of the Land.’ ”

In Cooper v. Aaron, 358 U. S. 1, 18, the Supreme Court, 
speaking- in an opinion, unusual in that it was issued under 
the names of all the justices, said:

“Article VI of the Constitution makes the Constitution 
the ‘supreme Law of the Land.’ In 1803, Chief Justice 
Marshall, speaking for a unanimous court, referring to the 
Constitution as ‘the fundamental and paramount law of 
the nation,’ declared in the notable case of Marbury v. 
Madison, 1 Cranch 137, 177, that ‘It is emphatically the 
province and duty of the judicial department to say what 
the law is.’ This decision declared the basic principle 
that the federal judiciary is supreme in the exposition of 
the law of the Constitution, and that principle has ever 
since been respected by this Court and the Country as a 
permanent and indispensable feature of our constitutional 
system. It follows that the interpretation of the Four­
teenth Amendment enunciated by this Court in the Brown 
case is the supreme law of the land, and Article VI of 
the Constitution makes it of binding effect on the States 
‘any Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding.’ Every state legislator and 
executive and judicial officer is solemnly committed by 
oath taken pursuant to Art. VI, cl. 3, ‘to support this 
Constitution.’ Chief Justice Taney, speaking for a unan­
imous Court in 1859, said that this requirement reflected 
the framers’ ‘anxiety to preserve it [the Constitution] in 
full force, in all its powers, and to guard against resistance 
to or evasion of its authority, on the part of a State # * * .’ 
Ableman v. Booth, 21 How. 506, 524.

“No state legislator or executive or judicial officer can 
war against the Constitution without violating* his under­



80

taking to support it. Chief Justice Marshall spoke for a 
unanimous court in saying that: ‘If the legislatures of the 
several states may, at will, annul the judgments of the 
courts of the United States, and destroy the rights acquired 
under those judgments, the constitution itself becomes a 
solemn mockery * * United States v. Peters, 5 Cranch 
115, 136.”

The argument of the amicus curiae must be held to be 
without merit in law.

In accordance with the foregoing, the judgment of the 
district court is affirmed, on the findings of fact, conclu­
sions of law, and opinion of Judge William E. Miller.



81

Judgment

No. 13,748
(Filed June 17, 1959)

Appeal from the United States District Court for the 
Middle District of Tennessee.

This cause came on to be heard on the transcript of the 
record from the United States District Court for the 
Middle District of Tennessee, and was argued by counsel.

On consideration whereof, it is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be and the same is hereby affirmed.