Calhoun v. Cook Brief for Plaintiffs-Appellants

    /
■» V

IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 72-2453

VIVIAN CALHOUN, et al..

Plaintiffs-Appellants,

v.

ED. S. COOK, et al.,

Defendants-Appellees,

On Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, N. Y. 10019 
212 586-8397

HOWARD MOORE, JR.
ELIZABETH R. RINDSKOPF 

Suite 1154
75 Piedmont Avenue, N.E.
Atlanta, Ga. 30303 
404 659-2200

Attorneys for Plaintiffs-Appellants

I



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 72-2453

VIVIAN CALHOUN, et al.,

Plaintiffs-Appellants,
v.

ED. S. COOK, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

CERTIFICATE REQUIRED BY 
FIFTH CIRCUIT LOCAL RULE 13(a)

The undersigned, counsel of record for plaintiffs- 

appellants, certifies that the following listed parties have 

an interest in the outcome of this case. These representa­

tions are made in order that Judges of this Court may evaluate 

possible disqualification or recusal pursuant to Local Rule 
13(a) .

1. Plaintiffs Vivian Calhoun, et al., represent a class 

of Negro parents and their children attending the public school



system of the city of Atlanta and seek desegregation of the

public schools. The original plaintiffs are as follows:

Vivian Calhoun, Cornetha Calhoun and Fred Calhoun, 
infants, by Willie Calhoun, their father and next 
friend;

Cornell Harper, Jessie Lee Harper, Betty Jean Harper 
and Frank Harper, infants, by Henry J. Harper, their 
father and next friend;

Leanard Jackson, Jr., Cecelia Jackson, Phyllis Jackson 
and Reba Jackson, by Leanard Jackson, Sr., their 
father and next friend;

Betty Jean Winfrey, Jenning Winfrey, Melvin Winfrey,
Sharon Winfrey and Doris Winfrey, by Roosevelt Winfrey, 
their father and next friend;

Juanita Fears and Johnny Fears, by Johnny Fears, Sr., 
their father and next friend;

Onitha Putnam and Cloud Putnam, by Dock Putnam, their 
father and next friend;

Ernest Swann and Charles Swann, by Ralph Swann, their 
father and next friend;

James Lester and William Lester, by David Lester, 
their father and next friend;

Sandra McDowell and Snowdra McDowall, by Hudie 
McDowell, their father and next friend;

Delane Jenkins and Marion Jenkins, by Mrs. Ruth 
Smith, formerly Mrs. Ruth Jenkins, their mother and 
next friend.

2. Plaintiffs-intervenors allowed by order of November 22, 

1967, are as follows:

Mrs. Precious Griggs, mother and next friend of 
Precious Wanda Griggs;

2



Edward Moody, father and next friend of Teireione 
Michaelel Moody, Ronald Moody, Rhonda Moody, Arlene 
Denis Moody, Muriel Avon Moody, Sharon Elaine Moody, 
Carolyn Moody and Daisey Marie Moody;

Leroy Bowden, father and next friend of Sheryl Ann 
Bowden;

Mrs. Gweldolyn Coggins, mother and next friend of 
Joseph Coggins and Yvonne Coggins;

Reverend P. C. McCollum, father and next friend of 
Ph^i®tto McCollum, Lerna LaFay McCollum, Gary Bernard 
McCollum, Travis Veshun McCollum and Anita Yvonne 
McCollum;

Mrs. Catherine Simpson, mother and next friend of 
Patricia Simpson, Jacquelyn Simpson and Angela Marie 
Simpson;

John Browner, father and next friend of Shelia Browner;

Reverend Howard W. Creecy, Sr., father and next friend 
of Howard W. Creecy, Jr., Gardner Creecy and Candace 
Creecy;

Reverend Ralph Abernathy, father and next friend of 
Juandalyn Abernathy, Donzaley Abernathy and Ralph 
Abernathy, III;

Elmore Keith, father and next friend of Artis Keith;

Howell Hester, father and next friend of Claire Hester;

Louis Johnson, father and next friend of Michael Johnson;
Jake Rowe, father and next friend of Jose Rowe;

George Williams, Jr., father and next friend of Sylvia 
R. Williams;

Mary Francis Henderson, mother and next friend of Ingrid 
Henderson and Corliss Henderson;

Jesse Hill, Jr., father and next friend of Nancy Hill 
and Azira Hill;

Runette Bowden.
3



3. The defendants are:

John W. Letson, Superintendent of Schools

The City of Atlanta Board of Education by and through 
its members:

June Cofer, Mrs. LeRoy Woodward, Asa G. Yancey, 
Charles L. Carnes, Jerry Luxemburger, Howard E. 
Klein, Benjamin E. Mays, J. Frank Smith, Jr.,
J. A. Middleton, William J. VanLandingham.

James M. Nabrit, III 
Attorney of Record for

III

(Plaint if fs-Appellants

4



Issues Presented .........................................  1

Statement of the C a s e ................................... 4

Statement of Facts:

I. Present Status and History of School Desegrega­
tion in Atlanta - Pupils and Faculty........... 10

A. Total Enrollment ............................  10

B. Statistics on Racial Separation of Pupils -
1971-1972   10

C. School Segregation Index ...................  12

D. Present Assignment Methods .................  13

E. Individial Segregation History of the 83
Current Black Schools in Atlanta ........... 16

F. The Interrelationship between Housing Segre­
gation Caused by State Action and School 
Segregation in Atlanta ...................... 19

G. Faculty Segregation ........................ 26

H. Staff Discrimination ........................ 29

II. Facts on Plaintiffs' Proposed P l a n .............  31

A. The Plan Was Prepared by a Competent Expert 31

B. General Approach of the P l a n ...............  31

C. Detailed Explanation of P l a n ...............  33

1. Elementary Schools ...................... 33

2. Middle Schools and Junior Highs . . . .  35

3. High Schools............................  35

I N D E X
Page

i



Page
D. Transportation Under Plaintiffs' Plan . . .  36

1. Number of Pupils Transported ............. 36

2. Time and D i s t a n c e .........................  38

3. Comparison of Busing Distances ......... 39

4. Present Busing - 39,000 Daily Rides . . 40

(a) Special Bus Service..................  41

(b) Contract B u s e s ......................  42

(c) Student Riders on Regular Bus Routes 42

5. Use of Busing to Segregate Pupils . . .  43

6 . National School Bus Statistics ......... 44

7. Cost of Busing Under P l a n ................ 45

E. Facts on the "White Flight" I s s u e .............  46

F. Dr. Stolee's Proposed Staff Desegregation
P l a n ............................................  52

ARGUMENT:

I. The Atlanta Public School System Is in Violation
of the Fourteenth A m e n d m e n t ......................  54

A. Pupil Assignments .............................  54

B. Faculty and Staff Assignments ................  61

II. The Court Should Order Implementation of Plain­
tiffs' P l a n ........................................ g3

m *  Plaintiffs' Faculty and Staff Desegregation Plan
Should Be Implemented ............................. 59

Conclusion.............



Cases;

Alexander v. Holmes County Board of Education, 396 U.S.
19 (1969).........................................  66

Allen v. Board of Public Instruction of Broward County,
Fla., 432 F. 2d 362 (1970)........................ 58

Anthony v. Marshall County Board of Education, 409 F.2d
1287 (5th Cir. 1 9 6 9 ) ............................  68

Barrows v. Jackson, 346 U.S. 249 (1953).................  21

Bowen v. City of Atlanta, 159 Ga. 145, 125 S.E. 199
(Ga. 1 9 2 4 ) ............................  21

Brewer v. School Board of the City of Norfolk, Va.,
456 F.2d 943 (4th Cir. 1972), cert, den., ___
U.S. ___ (1972) [40 U.S.L. Week 3 5 4 0 ] ........... 59

Brewer v. School Board of City of Norfolk, 397 F.2d 37
(4th Cir. 1 9 6 8 ) ..................................  60

Brown v. Board of Education, 347 U.S. 483 (1954) . . . .  69

Brown v. Board of Education of the City of Bessemer,
___ F.2d ___  (5th Cir. 1972) [No. 71-2892,
July 11, 1 9 7 2 ] ..................................  59

Buchanan v. Warley, 245 U.S. 60 ( 1 9 1 7 ) ................... 21

Calhoun v. Cook, 443 F.2d 1174 (5th Cir. 1971) . . . .  13,54

Calhoun v. Cook, 5th Cir. No. 71-2622 .............. 4,9,25,63

Carter v. West Feliciana Parish School Board, 396 U.S.
290 ( 1 9 7 0 ) ..................................... 65,66

Clark v. Board of Education of Little Rock School
District, 449 F.2d 493 (8th Cir. 1 9 7 1 ) .......... 38

Colorado Anti-Discrimination Com. v. Continental Air
Lines, 372 U.S. 714 (1963).....................  70

TABLE OF AUTHORITIES
Page



Page
Cooper v. Aaron, 358 U.S. 1 (1958)...................... 69

Crow v. Brown, 5th Cir. No. 71-3466, decided March 15,
1972, affirming Crow v. Brown, 332 F. Supp. 382
(N.D. Ga. 1 9 7 1 ) ................................  23

Dandridge v. Jefferson Parish School Bd., 456 F.2d 552
(5th Cir. 1 9 7 2 ) ................................  17,57

Davis v. Board of School Commissioners of Mobile
County, 402 U.S. 33 (1971) ............... 55,58,59,64

Davis v. Board of School Commissioners of Mobile
County, 430 F.2d 883 (5th Cir. 1 9 7 0 ) ........... 55

Dooley v. Savannah Bank and Trust Co., 199 Ga. 353,
34 S.E.2d 522 (Ga. 1 9 4 5 ) ........................ 21

Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1955), aff'd, 375 F.2d 158
(10th Cir.), cert, denied, 387 U.S. 931 (1967) 60

Flax v. Potts, ___ F .2d ___ (5th Cir. 1972) [No. 71-2715,
July 14, 1 9 7 2 ] ..................................  57

Glover v. City of Atlanta, 148 Ga. 285, 96 S.E. 562
(Ga. 1 9 1 8 ) ....................................... 21

Green v. County School Board of New Kent County,
391 U.S. 430 (1968)   54,56

Henry v. Clarksdale Municipal Separate School Dist.,
409 F .2d 682 (5th Cir. 1969), cert, den.,
396 U.S. 940 (1969)   61

Holland v. Board of Public Instruction of Plam Beach
County, 258 F.2d 730 (5th Cir. 1 9 5 8 ) ........... 60

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) . 72

Shelley v. Kraemer, 334 U.S. 1 ( 1 9 4 8 ) .................  21

Singleton v. Jackson Municipal Separate School District,
419 F . 2d 1211 (5th Cir. 1 9 7 0 ) ........... 28,29,63,70



Page

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) .............  5,55,56,58,59,63,64,65

66,67,69,70

Swann v. Charlotte-Mecklenburg Board of Education,
431 F .2d 138 (4th Cir. 1970), aff'd insofar as 
it affirmed district court, 402 U.S. 1 (1971) 61

Thorpe v. Durham Housing Authority, 393 U.S. 268 (1969) 72

United States v. Board of Education of Baldwin County,
Ga., 423 F . 2d 1013 (5th Cir. 1 9 7 0 ) .............  65

United States v. Greenwood Municipal Separate School 
District, ___ F.2d ___ (5th Cir. 1972)
[No. 71-2773, April 1, 1 9 7 2 ] ...................  59

United States v. Hinds County School Board, 443 F.2d 611
(5th Cir. .1970)   5

United States v. Montgomery County Board of Education,
395 U.S. 225 (1969)   70

United States v. Scotland Neck City Board of Education,
___ U.S. ___  (1972) [40 U.S.L. Week 4817] . . .  67

Statutes;

Civil Rights Act of 1964, Title V I ...................... 29

Emergency School Aid Act, Public Law 92-318 (June 23,
1972), Section 7 1 8 ................................. 27,71

42 U.S.C. §§ 1981, 1983 ................................  29

42 U.S.C. § 2000e as amended............................  29

Constitution of Ga., Art. VII (Ga. Code Ann.
§§ 2-8601 - 2-8605)   41

Ga. Code Ann. § 32-618 (d) ..............................  37

Ga. Code Ann. § 68-616..................................  44

v



Georgia Laws 1 9 7 1 ........................................  41

Georgia Laws 1966   41

Georgia Laws 1965   41

Other Authorities;

Federal Housing Authority Underwriting Manual (1938) . . 23,24

Taeuber and Taeuber, Negroes in Cities (1969) ......... 19

Page

vi



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 72-2453

VIVIAN CALHOUN, et al.,

Plaintiffs-Appellants, 
v.

ED. S. COOK, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

BRIEF FOR PLAINTIFFS-APPELLANTS

ISSUES PRESENTED

1. Whether the Atlanta, Georgia public school system is 

in violation of the Fourteenth Amendment's prohibition against 

racially segregated dual systems and the requirement of the 

"greatest possible degree of actual desegregation" where:

a. More than three-fifths (61.5%) of all black children 

(44,449 out of 72,321) are assigned to schools which are 99%-100%



black and four-fifths (82.5%) are in schools more than 90% 
black;

b. The school board has declined to pair any schools 

(either contiguous or non-contiguous) regardless of the dis­
tances involved;

c. The school board has declined to utilize non-contiguous 

zones with or without transportation by school buses as a 

desegregation device;

d. The vast majority of the 83 all-black schools were 

originally established as such or were converted from all- 

white to all-black by board action; many present day all-black 

schools were established as such before the first token desegre­

gation steps began (40 prior to 1962); and the so-called

"resegregation" process cannot possibly account for present 

segregation since only a handful of present all-black schools 
were once integrated;

e. Black teachers are now, and have always been, more 

concentrated in schools with predominantly black pupils and 

white teachers are now and always have been concentrated in 
white pupil schools;

f. The housing segregation which makes school desegregation 

more difficult in Atlanta was caused, created and maintained by 

city (including school board), state and federal governmental

2



action in violation of the Fifth and Fourteenth Amendments; 

included among many facets of such housing discrimination is a 

Pattern of public low income housing units which were racially 

restricted and segregated by law and were built in conjunction 

with nearby segregated schools planned by the school board to 

accommodate the legally segregated housing units.

2. Whether, assuming the Atlanta system has failed to 

remedy the constitutional violation, the plaintiffs' proposed 

pupil assignment plan, which would eliminate all one-race 

schools by various established school desegregation techniques 

(including simple rezoning, various contiguous and non-con- 

tiguous pairings of schools, and transportation), should be 
ordered implemented where:

a. The district court found the plan "workable" and 

"'feasible' in the sense that it apparently is a sound approach 

to the problem of redistributing both Black and white pupils 

on a equal basis so as to create a more nearly perfect racial 
mix" (R. 675);

b. But the district court rejected the plan as unreason­

able because he found that there was no constitutional violation, 

and because of the court's prophecy that implementation would 

cause so many white pupils to leave as to create an all-black 
school system.

3



3. Whether plaintiffs' proposed faculty and staff 

desegregation plan should be adopted where the school board has 

never eliminated the concentration of black teachers in black 

schools and white teachers in white schools.

STATEMENT OF THE CASE

On October 21, 1971, this case, in which Negro plaintiffs 

have sought since 1958 to obtain the desegregation of the 

Atlanta, Georgia public school system, was remanded by the 

court of appeals to the district court for further fact-finding 

on specified issues. Calhoun v. Cook, 5th Cir. No. 71-2622.

The brief of appellants in No. 71-2622 describes the long his­

tory of the case. This Court’s October 21, 1971, order directed

(a) that plaintiffs be given a reasonable opportunity to 

present and support in the district court an alternate and 

superior plan to desegregate the Atlanta public school system;

(b) that the district court supplement the record on 

appeal with findings and conclusions as to the viability and 
efficacy of plaintiffs' plan;

(c) that the district court "shall additionally consider 

and make supplementary findings of fact and conclusions of law 

on the wide range reevaluation of the Atlanta school system 

described in the paragraph of its opinion of July 28, 1971, 
entitled 'Comment'";

4



(c3) that the portion of th© opinion of th© district court 

of July 28, 1971, stating that the case shall stand dismissed 

on January 1, 1972, is vacated and that during the next three 

school years the school district shall be required by the dis­

trict court to file semi-annual reports similar to those 

required in United States v. Hinds County School Board. 443 
F.2d 611, 618-619 (5th Cir. 1970).

On December 30, 1971, plaintiffs filed their proposed plan 

accompanied by a "Motion for Adoption of Plaintiffs' Proposed 

Desegregation Plan and for Other Relief" (R. 561-587). Plain­

tiffs reported that they were submitting a plan (R. 564) 

prepared by Dr. Michael J. Stolee, Professor of Education and 

Associate Dean at the School of Education of the University of 
Miami.

Plaintiffs’ motion alleged that the Atlanta system had 

not achieved the "greatest possible degree of actual desegrega­

tion and continues to have a large number of one-race schools 

which are the result of the historic pattern of racial segre­

gation. It alleged that Atlanta schools may be desegregated by 

use of the techniques in Swann v. Charlotte-Mecklenburg Board 

of Education, 402 U.S. 1 (1971), and that desegregation of 

Atlanta was feasible and practical. It alleged that plaintiffs' 

plan would achieve the greatest possible degree of actual

5



desegregation and eliminate all one-race and substantially dis­

proportionate schools and that it was not justifiable to adopt 

a plan accomplishing less desegregation. It alleged that 

plaintiffs' plan was designed to treat white and black pupils 

equitably insofar as it requires transportation, and that any 

adequate desegregation plan must be designed to treat all 

racial groups on a fair and equitable basis.

Plaintiffs' motion prayed, inter alia, that the court 

(1) enter an injunction ordering that the board implement plain­

tiffs' proposed plan and that the board "make any adjustments 

and reassignments as may be necessary periodically to continue 

the school system on a desegregated basis without racially 

identifiable schools and one-race schools"; (2) enter an 

injunction ordering defendants to implement plaintiffs' proposal 

with respect to desegregation of faculties and administrative 

staffs; and (3) in the event the court disapproves plaintiffs' 

plan in whole or in part, that it require that defendants imple­

ment a plan "which achieves the same degree of actual desegrega­

tion as would be achieved by plaintiffs' proposed plan."

On or about March 29, 1972, the defendants filed their 

"Response to Plaintiffs' Alternate Plan for Further Desegrega­

tion" (R. 602-615). The response alleged that the Atlanta public 

school system serves approximately 100,000 pupils; that the

6



school population is presently 73% black and 27% white; that 

in the 1970-71 school year the system lost about 7,000 white 

pupils from the preceding year and in the 1971-72 year the 

system lost about 5,100 white pupils from the preceding year; 

that the system "since 1872 has never transported a single stu­

dent, owns no buses and receives no state aid for transporta­

tion"; that based on information furnished by each principal 

the "private" Atlanta Transit System arranges routes to 

accommodate students at reduced fares; that the system has a 

majority-to-minority transfer provision and furnishes free 

transportation to those pupils;that presently about 1,750 

pupils are taking advantage of this majority-to-minority transfer 

provision. The defendants alleged that plaintiffs' plan would 

require the busing of 50,000 pupils at an annual cost of 

$2,954,168 "in a school system that has never provided busing 

and never used busing to establish or perpetuate segregation."

The response argued there is a distinction between Atlanta and 

other systems ordered to bus by federal courts in that Atlanta 

"is different because there are no existing transportation facil­

ities and because there is no state imposed segregation"; that 

obtaining the estimated $2,954,167 to operate the buses "is next 

to impossible"; that wherever there are schools in Atlanta which 

are predominantly of one race "this result has been caused by

7



factors completely beyond the control of school authorities"; 

that "the major factor is the migration of children to private 

or suburban schools"; and that the present plan of assignment 

in Atlanta "complies with the Federal Constitutional require­

ments." The response said that on March 27, 1972, the board 

adopted a report submitted by a board committee stating "that 

mandatory mass bussing of pupils in Atlanta is unworkable and, 

in fact, will not achieve the desired results of ourselves orythe plaintiffs."

Thereafter, the court on May 3-4, 1972, heard evidence 

offered by the parties. (See Transcript, R. 29-557.) (While 

Judge Henderson also signed the subsequent opinion, Chief Judge 

Smith sat alone at the evidentiary hearing.) Plaintiffs

1/ The board's pleading also reported adoption of recommenda­
tions that the system increase the number of blacks in key 
positions; that a resource committee of interested citizens be 
appointed in each school area to consult with the area superin­
tendent; that a new position of associate superintendent be 
created with the first appointment being filled by a black per­
son; that new positions be created for blacks on the admin­
istrative staffs; that "an outside professional group" be 
selected to appraise the entire system; that the system increase 
its efforts in the reading program; that the board establish 
certain unique high schools and middle schools to be city­
wide schools; that it is the policy of the board to maintain 
integrated faculties and administration; that the board has on 
numerous occasions adopted an open housing position and believes 
this is the only ultimate solution to an integrated school pro­
gram; that this action program should be accomplished by or 
before December 31, 1973; and that greater effort be made to 
increase the number of majority-to-minority transfers.
R. 610-614.

8



subsequently filed detailed proposed findings and conclusions 

(R. 616-665). On June 8, 1972, the court filed an opinion 

(R. 666-682) concluding that plaintiffs' plan is "rejected."

In summary, the court decided that the school board satisfied 

constitutional requirements with respect to both faculty assign­

ments and pupil assignments. The court held that "Atlanta has 

long since been a 'genuinely nondiscriminatory' unitary system; 

because it has been a 'de facto' city since at least 1967"; 

that "its imperfection is due to causes beyond the control of 

the Board; because no 'state action' is involved any longer"

(R. 681). The court found that plaintiffs' plan is "workable" 

and "feasible" (R. 675) but rejected it on the ground that a 

busing plan would cause white flight and"Atlanta will most 

likely evolve into an all-black system if the plaintiffs' plan 
for busing is adopted" (R. 681).

On June 23, 1972, the district court entered an order 

directing that its findings be certified to this Court in 

response to this Court’s order of October 21, 1971, in 5th Cir. 

No. 71-2622, and also denying plaintiffs' motion for an injunc­

tion ordering implementation of plaintiffs' plan (R. 684). The 

same day, June 23, 1972, plaintiffs filed notice of appeal from 

the orders of June 8 and 23, 1972 (R. 683).

9



STATEMENT OF FACTS

I• Present Status and History of School Desegregation 
in Atlanta - Pupils and Faculty.

A. Total Enrollment

During 1971-72 the Atlanta system operated 155 schools 

w ith 100,174 pupils. There were 126 elemeritary (grades K-7) 

and 29 secondary schools (grades 8-12), including 3 middle

schools (grades 6-8) and one junior high (grades 7-9) Ex
2/

P-16.

In the fall of 1971 black pupils were 72.2% of the enroll­
ment .

Negro WhitePupils No. % No. % Total
Elementary 45,452 71.8 17,867 28.2 63,319
Secondary 26.869 72.9 9,896 27.1 36.855

Total 72,321 72.2 27,853 27.8 100,174

B. Statistics on Racial Separation of Pupils - 1971-1972

Atlanta schools are still characterized by a pattern of 

separation of black pupils from white pupils. Over four-fifths

2/ Ex. P—16 collects detailed statistics by race for pupils and 
staff for 1954, 1955, 1960, 1961 and 1966 through 1971. The 
arrangement of the several charts for each year is described in 
testimony at R. 166-169, 179-185.

10



of all Negro children attend schools which are 90% or more black 

and over three-fifths of them are in schools more than 99% black. 

The following chart summarizes the pupil segregation:

Fall 1971
Combined Elementary and Secondary-^/

% Negro 
Pupils

No. of 
Schools No. Negro Pupils No. White Pupils

100% 23 ) 17,423) 1)
) 83 ) 59,689 (82.5%) ) 757 (2.7%)

90-99 60 ) 42,266) 756)

80-89 5 2,442 (3.4%) 346 (1.2%)
70-79 2 924 (1.3%) 278 (1.0%)
60-69 5 2,111 (2.9%) 1,146 (4.1%)
50-59 4 1,387 (1.9%) 1,105 (4.0%)
40-49 8 2,336 (3.2%) 2,987 (10.7%)
30-39 3 563 (0 .8%) 1,026 (3.7%)
20-29 8 1,930 (2.7%) 5,701 (20.7%)
10-19 8 622 (0.9%) 3,242 (11.7%)
1-9 20 ) 309) 8,354)

Less ) 28 ) 317 (0.4%) ) 11,195 (40.2%)
than 1 8 ) 8) 2,841)
Totals 154 72,321 (100%) 27,853 (100%)

3/ Ex. P-16.

11



In fall 1971 there were 23 schools with 100% Negro enroll­

ments which enroll 17,423 black pupils. There were 59 schools

with Negro populations greater than 99%, enrolling 44,449 Negro
4/

pupils. Ex. P-16. At the secondary level, 18,720 black 

pupils (69.7%) and at the elementary level, 25,729 black pupils 

(26.6%) attended schools more than 99% black. Ibid. Half of 

the white elementary pupils and about 20% of white secondary 

students attend virtually all-white (90% or more) schools.
Ibicl.

C. School Segregation Index

Plaintiffs' expert witness. Dr. Karl E. Taeuber, 

analyzed the history of school desegregation in Atlanta by Vmeasuring it with a pupil segregation index. See Ex. P-50.

Zero represents exact racial balance and 100 represents complete 

segregation; thus, before desegregation in Atlanta began in 1961, 
the index was 100. Ex. P-50.

4/ Ex. P-16 contains charts similar to that above for elementary 
and secondary schools. It also contains parallel charts for 
earlier years.

5/ The segregation index is explained in Dr. Taeuber's book, 
Negroes in Cities, Ex. P-54, where it was applied to measure 
housing segregation. See testimony at R. 248-268.

12



Pupil Segregation Index
School Year Elementary Secondary
1966- 67
1967- 68
1968- 69
1969- 70
1970- 71
1971- 72
Plaintiffs' Plan

97 95
95 92
93 88
91 86
84 81
82 82
15 10

D. Present Assignment Methods

The current system of pupil assignment in Atlanta uses
vattendance zones depicted on three maps. The plan now in 

effect was proposed by the board and approved by the district 

court March 20, 1970 (Hooper, D.J.). Plaintiffs appealed the 

approval and on June 10, 1971, this Court ruled the:

judgment of the district court is vacated and 
the cause remanded with directions that the dis­
trict court require the School Board forthwith 
to institute and implement a student assignment 
plan that complies with the principles estab­
lished in Swann v. Charlotte-Meeklenburg Board 
of Education, ... insofar as they relate to the 
issues presented in this case, including but not 
limited to the provisions of that opinion rela­
tive to a majority-to-minority pupil transfer 
option providing for free transportation and 
space availability to the transferring student. 
Calhoun v. Cook, 443 F.2d 1174 (5th Cir.
1971).

6/ See Ex. P-5 (elementary base map), P-9 (junior high and 
middle school base map), P-11 (senior high base map). See 
testimony at R. 56, 65, 75-77.

13



Nevertheless, because of subsequent orders in the trial court, 

now under review, the 1970 plan, which this Court vacated more 
than a year ago, remains in effect.

Atlanta school authorities have restricted their desegre­

gation effort to single contiguous zones and the majority-to- 

minority transfer plan. Atlanta has never used pairing, grouping,
ynon-contiguous zoning or busing as desegregation techniques.

7/ Although the opinion below states the board has used pairing 
(R. 672), this is a plain mistake of fact. The Assistant Super­
intendent, Dr. Cook, testified at his deposition (pp. 61-63):

Q Getting back to the issue of the current 
pupil assignment practices of the system, I think 
we had gone over the zones, and we had gone over 
the exceptions to the zones. Is it correct to 
state that the system does not use any transporta­
tion zones or non-contiguous zones of any kind?

A Yes.

Q By non-contiguous, what I mean is a zone 
that is not geographically surrounding the school 
that it serves.

A Yes.

Q Would it also be accurate to state that the 
system does not combine more than one school in a 
zone or use a grade structure system, whereby ---

A We don't pair, yes.

Q You don11 have any pairing?

A That's right.
*  *  *

(continued)

14



Currently each school has an attendance area surrounding the
8/

school, and with some exceptions, pupils are directed to the 

school in their zone of residence. The board’s attendance areas 

vary greatly in size from small walk-in zones to huge areas where 

many pupils live miles from the schools to which they are 
assigned.

7/ (Continued)

Q Is there any policy statement on this 
issue by the board that you know about or recall, 
whether or not you used pairing or whether or not 
you used contiguous zones?

A No. Obviously we have not done it, so this 
is not our policy.

Q Was that policy based on staff recommenda­
tions, or what?

A There is no written policy about it. We 
just haven't done it. We do not have a policy 
against it; we simply have not done it.

See also colloquy at R. 80-81.

8/ Exceptions to the attendance zone assignments are handicapped 
children, children in special schools, children transferred 
under the court ordered majority-to-minority race transfer plan, 
children moved ror administrative reasons including disciplinary 
reasons, and children who were enrolled in a sequence of courses 
at a school prior to the zones who would otherwise have been 
moved to a school without the same course. (See Cook Deposition 
of March 16, 1972, pp. 48-50.)

15



E. Individual Segregation Histories of the 83 
Current Black Schools in Atlanta.

The vast majority of the 83 schools with pupil popula­

tions over 90% black were established as all-black schools under 

the dual system. Exhibit P-45(a) lists 40 such schools which 

were all-black in 1962 before any desegregation and are still 

virtually all-black. See also R. 199-200, 205, 209. Exhibit 

P-46 lists 13 schools which were converted from all-white to 

all-black by the school administration prior to 1966 (R. 200- 

202, 205, 209). Exhibit P-46 lists 55 schools which always 

have been more than 90% black schools.

Exhibit P—17 contains a separate enrollment history by race 

for each school in Atlanta. A study of the 83 schools which are 

now 90% or more black indicates that:
9/

1) 59 schools have always been over 90% black;

2) 12 schools were administratively converted from 100%
10/

white to all-black during operation of the dual system;

3) only 12 schools have changed from less than 90% black

9/ See Ex. P-46 which lists 53 such schools. Carver High School 
has also always been 100% black and should be included in the 
list in Ex. P-46. See also Blalock, Drew and Adamsville schools 
which opened in 1971 as all-black schools. Ex. P-17.

10/ See Ex. P-46, p. 2. (A thirteenth school, East Lake, was 
79% black in 1966.)

16



to more than 90% black since 1966. Of these 12 schools, 7

became over 90% black by 1969 during operation of the board's

freedom-of-choice plan. The others became over 90% black in

1970 or 1971 under the board's current attendance areas.

The opinion below unaccountably refers to "vast numbers"

of "resegregated" schools (R. 681).

Here we have vast numbers of schools which have 
been desegregated and then resegregated by shift­
ing population trends. Cf. Dandridge v. Jefferson 
Parish School Bd.. 456 F.2d 552 (5th Cir. 1972).

We submit the finding is clearly erroneous. The court cites no 

details to support the assertion. The cold fact of the indi­

vidual school enrollment histories (Ex. P-17) analyzed in the 

prior discussion simply is that there are no more than a dozen

schools in Atlanta to be even discussed in the category of
12/

"resegregation." No others have gone from all-white (90% plus)

11/

11/ These 12 schools include 8 elementary schools (Arkwright, 
Beecher Hills, Burgess, Connally, East Lake, Gilbert, Harris, 
Rusk and West Manor) and 3 secondary schools (Brown, Hoke Smith 
and Southwest). Ex. P-17.

12/ The only school board showing on "resegregation" is a 1971 
affidavit by Supt. Letson (see Record in 5th Cir. No. 71-2622) 
which asserted that 17 schools had become resegregated since 
1961. This is hardly a "vast number" in Atlanta, but few of 
the 17 meet any definition of "resegregation" since few were 
ever integrated. Elementary school desegregation did not even 
begin in Atlanta until 1965. Analysis of the Superintendent's 
list of 17 "resegregated" schools by reference to the individual 
enrollment histories in P-17 shows the following:

17



during the period since all grades in the system were desegre­

gated. All of the so-called "resegregation" took place under 

the regime of the very same pupil assignment policies which are 

challenged in this appeal: some were "resegregated" under

freedom of choice and the rest under the current school zoning 

plan. Most schools have never been integrated in the first 

place as the enrollment history exhibits amply demonstrate school 

by-school and year-by-year. See Ex. P-16 and P-17.

Testimony at hearings several years ago by Superintendent 

Letson and others established that the school board frequently 

converted all-white schools into all-black schools, transfer­

ring segregated pupils and faculties into and out of a building

12/ (Continued)

1. 4 schools which were shifted from all-white to all-black
between 1954 and 1961: Capital Avenue, Fain, Mayson and
Whitefoord.

2. 6 schools which were converted from all-white to all­
black between 1961 and 1966: Carey, Center Hill, Kirkwood,
West Haven, Murphy High and Fulton High.

3. 1 school which opened all-black in 1966 or 1967: Grove
Park.

4. 6 remaining schools which were briefly desegregated
before becoming black: Beecher Hills, Burgess, Connally, Gilbert
and Westminster. East Lake (79% black in 1966) may also belong 
in- this group. Almost all of these schools became resegregated 
under the free choice procedure in effect prior to 1970 when 
white pupils were permitted to transfer out to attend white 
schools and avoid schools with blacks.

18



en masse. See Exhibits P-41, P-42 and P-43. The most dramatic 

evidence of the practice of "converting" schools from white to 

black is the testimony about Kirkwood school. Ex. P-43 shows 

that Kirkwood was 100 percent white— students and faculty—  

prior to January 25, 1965. On that date, in the middle of a 

school year, 400 Negro pupils and a complete black faculty were 

moved in and 334 out of 340 white pupils were transferred out, 

along with all of the white staff, except the principal, secre­

tary and cafeteria manager. Ex. P. 43; R. 201-202.

F. The Interrelationship between Housing Segregation 
Caused by State Action and School Segregation in 
Atlanta.

A comprehensive study and measurement of residential 

segregation throughout the United States was conducted by plain­

tiffs' expert witness. Dr. Karl E. Taeuber (see Ex. P-54, 

'Negroes in Cities, Residential Segregation and Neighborhood 

Change," Taeuber & Taeuber). The high degree of residential

segregation which is "universal in American cities" is also
13/

characteristic of Atlanta. But Atlanta, and southern cities

13/ Dr. Taeuber states;

A high degree of racial residential segregation is 
universal in American cities. Whether a city is a 
metropolitan center or a suburb; whether it is in 
the North or South; whether the Negro population is 
large or small— in every case, white and Negro

19



generally, have a significant difference from the northern pat­

tern of housing segregation:

This, then, represents a basic difference between 
Northern and Southern cities. In most Southern 
cities, Negroes have continuously been housed in 
areas set aside for them, whereas in the North 
most areas now inhabited by Negroes were formerly 
occupied by whites. (Ex. P-54, Chapter 1; see 
also Chapter 8.)

Racial discrimination is the basic cause of residential
14/

segregation in the Atlanta area. Dr. Taeuber's study and

13/ (Continued)

households are highly segregated from each other. 
Negroes are more segregated residentially than 
are Orientals, Mexican Americans, Puerto Ricans, 
or any nationality group. In fact, Negroes are by 
far the most residentially segregated urban minority 
group in recent American history. This is evident 
in the virtually complete exclusion of Negro resi­
dents from most new suburban developments of the 
past fifty years as well as in the block-by-block 
expansion of Negro residential areas in the central 
portions of many large cities. (Ex. P-54, Chapter 1)

Dr. Taeuber measured the segregation index for Atlanta:

Residential Segregation Index 
Atlanta, 1940-1970______

Year

1940
1950
1960
1970
1970, Atlanta's Suburbs

Segregation Index

87
92
94
92
92

(Ex. P-52)

14/ See generally the testimony of Dr. Taeuber and Mr. Martin 
Sloane (R. 241-385). See also Ex. P-54 and P-73.

20



testimony show that it is discrimination rather than poverty or 

choice which causes the pattern of Negro residential segrega­

tion. (Ex. P-54, R. 299-301)

The pattern of housing segregation in Atlanta was estab­

lished by local laws requiring that the races live apart. Even 

after such laws were held unconstitutional in Buchanan v.

Warley, 245 U.S. 60 (1917), Atlanta enforced two ordinances 

requiring racial segregation in housing until those laws were 

held unconstitutional. See Glover v. City of Atlanta. 148 Ga.

285, 96 S.E. 562 (Ga. 1918), and Bowen v. City of Atlanta. 159 Ga. 

145, 125 S.E. 199 (Ga. 1924). It was stipulated that these old 

segregation laws set a pattern which still persists today and 

that their effects still linger. R. 364-366.

After these laws were struck down, the same result was 

achieved in Atlanta by widespread use of racially restrictive 

covenants in deeds which were enforced by Georgia courts. The 

covenants accomplished the same type of racial zoning previously 

maintained by the ordinances. See Dooley v. Savannah Bank and 

Trust Co., 199 Ga. 353, 34 S.E.2d 522 (Ga. 1945), indicating that 

Georgia law required state court enforcement of racially restric­

tive covenants prior to Shelley v. Kraemer. 334 U.S. 1 (1948), 

and Barrows v. Jackson. 346 U.S. 249 (1953).

Exhibit P-73 is an account of federal policies on residental 

segregation prepared by Martin Sloane, Assistant Staff Director

21



of the United States Commission on Civil Rights, and a housing 

expert. Mr. Sloane describes how the Federal Housing Admin­

istration (FHA) required the use of racially restrictive 

covenants and required segregation in all FHA housing for 13 

crucial years after World War II (R. 356-358). FHA played a 

central role, both nationally and in Atlanta, in establishing 

the present pattern of residential segregation. Many federal 

agencies contributed to residential segregation, including the 

Federal Home Loan Bank Board, the Homeowners Loan Corporation, 

Comptroller of the Currency, Federal Reserve Board and Federal 

Deposit Insurance Corporation. Exhibit P-73 also shows how 

various fedeia 1 agencies have failed to take any effective action 

to change the pattern of housing segregation and indeed continue 

to promote housing segregation, even though this is now forbid­

den by various federal statutes. Sloane's expert appraisal of 

federal housing policy shows that the federal response to the 

legal mandate to prevent segregation and discrimination in housing 

is generally ineffective and that the goal of equal housing oppor- 

tunity remains far from achievement. It also shows that present 

federal housing policies and laws offer no hope of integrating 
the schools.

The discrimination which has promoted residential segregation 

within Atlanta has also set the metropolitan area pattern by which

22



Negroes are excluded from the white suburban communities.

Between 1960 and 1970 the Atlanta city population increased 

from 38% Negro to 51% Negro; the population of the Atlanta sub­

urbs decreased from 8% to 6% Negro; and the Negro population of 

the total metropolitan area was stable at 23% in 1960 and 22% 

in 1970. Local government discrimination is partially respon­

sible for the confinement of Negroes to cities and their exclu­

sion from Atlanta's suburban communities. The Fifth Circuit 

recently affirmed a decision so holding in a case involving 

housing discrimination by public officials in Fulton County, 

Georgia. See Crow v. Brown. 5th Cir. No. 71-3466, decided 

March 15, 1972, affirming. Crow v. Brown. 332 F. Supp. 382 (N.D. 
Ga. 1971).

Establishment of racially segregated schools under the dual 

system influenced Atlanta neighborhoods to become residentially 

segregated. Designating schools as black or white or converting 

schools from white to black helped shape the pattern of residen­

tial segregation around the segregated schools. The construction 

of schools designed to serve racially segregated public housing 

projects also tended to lock in school segregation and neighbor­

hood segregation. The interrelation of dual school systems and 

residential segregation is also shown by the Federal Housing 

Authority Underwriting Manual (1938, Ex. P-71) which illustrates

23



that FHA's policy of promoting residential segregation was alsoiVinvolved in promoting school segregation.

Dr. Stolee pointed out— and Judge Smith agreed— that the 

dual system of schools operated in an important way to segregate 

the neighborhoods around the segregated schools:

A Well, when a school is labeled for a given 
race, then obviously the people that want to live 
in the environs of that school would be members of 
the same race; and so while in some ways the school 
may have been established because of racial pat­
terns of the neighborhood, once it was there then 
it contributed to the continuing racial pattern 
growth of the neighborhood.

THE COURT: No question about that. (R. 210)

Discrimination was also practiced by the low rent public 

housing program, which was operated on a racially segregated 

basis by the local public housing agency, the Atlanta Housing 

Authority. See Ex. P-44; see also Ex. P-73. It was stipulated 

that the Atlanta Housing Authority and the defendant school board 

worked "hand in glove" to establish segregated low income public 

housing projects and nearby public schools located and con­

structed to serve the segregated projects. (R. 370-376) Super­

intendent Letson filed an affidavit identifying 29 schools which 

were segregated by planning or building schools to serve housing

15/ See the 1938 FHA Underwriting Manual, Section 951.

24



projects which were once limited by law to black occupancy and
16/

are still all-black.

As Dr. Stolee pointed out, it is the school authorities' 

decision which established schools adjacent to or within the

16/ See Record in 5th Cir. No. 71-2622. Affidavit of John W.
Letson, filed July 2, 1971:

In the Atlanta system there are twenty-nine 
(29) schools that are in what school authorities 
call a controlled situation. A controlled situa­
tion means that a certain school serves, and often 
was built to serve, a federally funded housing pro­
ject. According to Executive Order No. 11063 which 
follows 42 U.S.C.A. 1982, these housing projects 
are supposed to be racially nondiscriminatory and 
are to have integrated occupants. If the housing 
authorities would obey their own laws and integrate 
these housing projects, these twenty-nine (29) 
schools serving the projects would have more inte­
gration.

The names of these twenty-nine (29) schools that 
are in control situations are as follows:

Butler Ware
Campbell Wesley
Carey Williams
Carter Archer
Craddock Price
Drew Washington
Dunbar Blair Village
Gilbert Blalock
Jessie Jones Boyd
M. Agnes Jones Cook
Oglethorpe Dobbs
Pitts Fowler
Robinson Luckie
Slater East Atlanta
Smith

25



housing projects and fixes the ultimate pattern of segregation 

by the fashioning of pupil assignment policies to accommodate 

the pattern of residential segregation. R. 205-209.

G. Faculty Segregation

In 1971-72 Atlanta public schools employed 4,805 
teachers of whom 60% were Negro:

Negro White
Teachers No. % No. % Total

Elementary 1,808.1 62.2 1,097.3 37.8 2,905.4
Secondary 1,118.4 58.9 781.8 41.4 1.900.2

Total 2,926.5 60.8 1,879.1 39.2 4,805.6

There is a continuing concentration of black teachers in 

schools with virtually all-black pupils. The faculties in the 

system all have some integration and range from a high of 84.6% 

Negro (at Howard) to a low of 30.1% Negro (at Dykes).

Plaintiffs' exhibits (Ex. P-16, Ex. P-16 (a) and Ex. P-17), 

compare the racial composition of faculty and student bodies of 

all Atlanta elementary and high schools. In comparing the racial 

distribution of faculty to the racial composition of the student 

body of the various schools, a uniform pattern emerges. This 

pattern obtained in both years since the March 1970 faculty 

desegregation order of the district court. Ex. P-16. In 1970-71

26



*the system-wide percentage of black teachers was 59.7%. ibid.

Of the 24 schools with faculties 70% black or more, all but one 

school had student bodies 90%-100% black. Ibid. Of the 20 

schools with faculties less than 50% black, all but two schools 

had student bodies more than 60% white and six of these schools 

had student bodies 90% or more white. Ibid.

During 1971-72, the system-wide faculty ratio was 60.8% black. 

Ibid. Thirty-eight schools had faculties over 70% black; all but 

one of these were composed of student bodies 90% or more black. 

Ibid. Thirty-five schools had faculties less than 50% black and 

24 of these schools had student bodies less than 30% black.

Ibid. Schools with a white faculty percentage over the system- 

wide ratio are identifiable in all cases as white by the compo­

sition of their student bodies. Ibid. Schools with a percentage 

of black teachers over the system-wide ratio are uniformly iden­

tifiable as black by the composition of their student bodies.
Ibid.

Plaintiffs presented testimony of Mrs. Frances Pauley,

H.E.W.'s coordinator for civil rights compliance reviews under 

Title VI of the Civil Rights Act of 1964 and the Emergency School 

Assistance Program (ESAP) for Georgia, Alabama and Tennessee.

(R. 444-482) Mrs. Pauley reviewed Atlanta’s two-year application 

for Priority I ESAP funds in the amount of $3,340,044, submitted

27



August 27, 1971. (Ex. P—48) Mrs. Pauley recommended disapproval 

of the Atlanta application on September 1, 1971, because of the 

system's failure to comply with faculty assignment requirements 

°f Singleton v. Jackson Municipal Separate School District. 419 

F •2d 1211 (5th Cir. 1970), as interpreted by HEW. HEW inter­

prets Singleton to require the ratio of minorities to non—minor­

ities faculty in all schools to be "substantially similar" to the 

ratio in the whole system. "Substantial similarity" as defined 

by HEW s rule of thumb" means individual schools must not vary 

from the system—wide ratio by more than two teachers and 5%.

R. 449-450. The ESAP review conducted by Mrs. Pauley revealed 

that 20 out of the 25 Atlanta high schools, and 24 of the sys­

tem's 125 elementary schools were in violation of the Singleton 

rule as thus applied. Figures submitted to HEW (Ex. P-48) 

showed that, particularly among Atlanta's high schools, variances 

from the system—wide ratio by as many as 10 or more teachers were 

not unusual (Douglas, Dykes, Harper, Hoke Smith and Therrell).

HEW estimated the need to transfer approximately 140 teachers to 

comply with Singleton. Phone conversations and a meeting on 

October 13, 1971, were held to explain this fact to Superintendent 

Letson and to encourage more faculty desegregation. Superin­

tendent Letson was intransigent in his reaction to the HEW request. 
Mrs. Pauley testified (R. 464):

28



Q And in your meeting on October 13 with 
Dr. Letson, were you willing to, or is it your 
policy generally to negotiate or take—

A The door of HEW is always open to 
negotiations.

Q So you would have been willing to agree 
to consider their application with a transfer of 
something less than 140?

A I would say that my superior that day 
spent about an hour and a half trying to persuade 
Mr. Letson to talk of negotiations and he refused, 
he constantly refused, said he could not make a 
change of assignment of a single teacher.

The result was that HEW officials in Washington rejected 

the ESAP applications and Atlanta lost $3,340,044 in federal
uyfunds. R. 458-459.

H. Staff Discrimination

While not attempting to present a detailed proof of 

employment discrimination as warranted under the various civil 

rights acts (cf_. 42 U.S.C. § 2000e as amended and 42 U.S.C.

§§ 1981, 1983), plaintiffs presented documentary evidence.

17/ Mrs. Pauley personally supervised or conducted all civil 
rights reviews in Georgia, Alabama and Tennessee under ESAP 
and Title VI of the Civil Rights Act of 1964. Atlanta was the 
only system which refused any attempt to meet HEW's civil 
rights requirements. Memphis, Nashville, Chattanooga, 
Savannah, Columbus, Macon, Birmingham, Montgomery and Mobile 
each successfully met the Singleton test as applied by HEW in 
determining civil rights compliance. R. 476.

29



Ex. P-77, demonstrating the lack of black participation in the 

educational decision-making and planning processes of the 

Atlanta public schools. Blacks are almost totally absent from 

decision-making central administrative positions in all but a 

few federally-funded programs. Of particular note is the total 

absence of blacks from the school system's Educational Broad­

casting Department. Blacks appear in that section only in 

three cases, a maid, a custodian and a crewman. Throughout 

the Central Administrative Staff blacks uniformly are concen­

trated in clerical and maintenance positions. While some Central 

Administrative Staff positions by definition afford little or no 

contact with the student body and educational process (e.g., 

Finance Department, General Accounting, Special Accounts, etc.), 

a high number of these positions do directly affect the student 

population, either through planning of educational programs and 

facilities or through such centrally operated programs as the 

aforementioned Educational Broadcasting Department. The absence 

of blacks from such Central Administrative Staff positions is 

reflective of the fact that as presently operated, Atlanta is 

not a "unitary" school system.

30



II. Facts on Plaintiffs' Proposed Plan

A - The Plan Was Prepared by a Competent Expert.

Plaintiffs' plan was prepared by Dr. Michael J. Stolee

who was found "well-qualified in terms of integration problems

and ... [to have] extensive experience in the preparation of

surveys and plans for a number of school districts throughout
18/

this Circuit and elsewhere." (R. 670) His thorough study

included visiting the exterior of each of Atlanta's 155 schools. 
19/

(R. 129)

B. General Approach of the Plan.

Dr. Stolee used multiple desegregation techniques, 

including single attendance zones (the adjustment of some 

boundaries and retention of others), the pairing of schools, the 

grouping of three or four schools, non-contiguous attendance

10/ See Ex. P-1, R. 12-13. Dr. Stolee is a recognized expert 
in the field of public school administration and school desegre­
gation. He has served as a public school teacher, principal, 
superintendent of schools, as well as professor of education 
at the university level. From 1966-1969 he was director of the 
Florida School Desegregation Consulting Center. He has partici­
pated in school desegregation studies and surveys in more than 
30 communities.

19/ Dr. Stolee studied voluminous documents about the system 
(Ex. P-15) and met with the board attorney (Mr. Latimer) and 
administrative personnel. R. 128-130.

31



zones, and transportation and attempted to put them all together 

in a reasonable way. R. 126-127. The plan seeks to desegregate 

the entire system at once and avoid the unsuccessful piecemeal 

approach used to date in Atlanta. (R. 118-119) The plan would 

eliminate all one-race schools, and assign pupils so that all 

schools would more or less reflect the makeup of the community. 

Schools would have a range of from about 54% to 87% black 

enrollments.

The series of groups and pairs in the plan were designed 

to equalize the burden of transferring between black and white 

pupils. R. 77-78. The groups were also designed to aim for 

equality in the numbers of black and white pupils in the lowest 

grades who remain in their home areas. R. 77-78. Of course, 

under the plan every pupil spends some elementary grades in his 
present home area. R. 80-81.

Dr. Stolee's plan minimizes the number of pupils transferred 

within each group. He accomplished this by avoiding a "Princeton 

Plan" grade structure and using an alternate method to reduce

the number of transferees but achieve as much integration.
20/

R. 64-66.

20/ Exhibit P-25 illustrates how grade structures are arranged 
to significantly reduce the number of pupils reassigned.

32



The plan was designed to relate rationally to local trans­

portation arteries. (R. 85-86. There is no "cross-town" busing; 

the maximum is "half cross-town" (R. 86) and most trips are much 

shorter. The grouping of schools considered the alternatives of 

transporting more pupils on shorter rides or accomplishing 

similar results by transporting fewer pupils on slightly longer 

trips. The decision was to reduce the number of pupils bused 

by planning slightly longer rides for those transported.

Dr. Stolee judged that none of the rides would require an exces­

sive period, and that all are within distances and times 

commonly used in school systems. Plaintiffs' detailed transporta­
tion time and distance study is discussed below.

C. Detailed Explanation of Plan.

1. Elementary Schools. The elementary plan has three 

parts designated in Exhibits P-2 and P-3 (which show enrollment 

projections) as Series I, Series II and Series III. The elemen-
n/tary plan is also illustrated by maps and overlays.

21/ Use these large maps as follows:

a. View P-5 —  existing elementary zones.
b. View overlay P-6 over P-5 —  Series I.
c. View Overlay P-7 over P-5 —  Series II.
d. View Overlay P-8 over P-5 —  Series III;

non-contiguous groups are color coded.

33



Series I (R. 26-31) includes 12 schools where present 

attendance lines were left unchanged because the schools in fall 

1971 were in the general range of the system's racial popula­

tion. Projected enrollments in Series I schools range from 55% 

to 87% black; only these 12 schools are now within this range. 

The board's attendance areas for these elementary schools range 

in size from small compact "walk-in" areas to large sprawling 

areas where pupils must necessarily be transported to school. 

See, for example, the attendance area for Ben Hill, Ex. P-5.

Series II (R. 31-53) desegregates 47 elementary schools by 

combining adjoining or contiguous zones and changing the grades 

at schools within the newly enlarged area. Typically, one pre­

dominantly white and one or more predominantly black schools
22/

are combined in a group. The size of the combined areas in 

Group II pairings compares favorably with many existing single 

zones now in use. Only a portion of Group II pupils will need 

transportation; the estimates are discussed below.

22/ The grouping technique is illustrated by group No. 2 in 
Series II involving English Avenue, Haygood and Home Park 
schools. Now English Avenue is black and Haygood and Home Park 
are white. The plan combines the three adjoining areas into 
one attendance area. Under the plan English Avenue School would 
serve all pupils in grades 1-3 in the entire three school area 
while Haygood and Home Park would both serve grades 4-5. Fourth 
and fifth grade pupils in the English Avenue area would be divided 
between Haygood and Home Park. Pupils in the Haygood and Home 
Park areas would return to their home neighborhoods in grades 
four and five. See Ex. P-7 over P-5.

34



Series III uses similar grouping and pairing techniques 

with school districts which are not contiguous or adjoining; it 

includes 64 schools in 22 groups. R. 83-94. The non-contiguous 

groups are arranged to relate to the high school feeder pattern 

and to favorable transportation routes.

The projected racial composition of schools in Series II 

and III would range between 54% black at Morningside and 86% 

black at Pitts and Craddock.

2. Middle Schools and Junior Highs. In 1971-72, Atlanta

had 3 middle schools and one junior high. Dr. Stolee would

desegregate each without disturbing the grade structure by making
23/

boundary changes. See R. 94-104, Ex. P-4.

3. High Schools. Exhibit P-4 gives high school enrollment
24/

projections; the high school plan is explained at R. 104-118.

23/ See Ex. P-4 for enrollment projections. See Maps and Over­
lays P-5, P-9, P-10. Use maps as follows:

a. View P-9 —  existing junior high and middle zones
b. View overlay P-10 over P-5 (elementarv base map)

to see proposed zones.

24/ Use Maps and Overlays P-5, P-11, P-12 as follows:
a. View P-11 —  present high school zones.
b. View overlay P-12 over P-5 (elementary base map)

to see proposed high school zones; non-con- 
tiguous areas are color coded. Feeder pattern 
shown by noting elementary zones.

35



Redrawing of attendance zones would desegregate ten high schools, 

indicated as black outlined areas in map overlay. Ex. P-12,

R. 107-108. Fourteen senior high schools would be desegregated 

by establishing transportation zones (non-contiguous zones) 

in addition to regular zones surrounding the schools. R. 107- 

108. Eleven of these schools would have two separate areas and 

three would have three areas.

The high school plan is based on a feeder relationship with 

elementary schools so that pupils would remain together through­

out elementary and secondary school. R. 110-111. Transportation 

patterns for elementary and secondary schools would be similar. 

Two pupils in a family at different levels could, if they both, 

required transportation, travel in the same direction on the 
same bus. R. 111-117.

D. Transportation Under Plaintiffs' Plan.

1. Number of Pupils Transported. The district court
25/

reviewed the parties' conflicting estimates and concluded the 

truth was "as is usual ... somewhere in-between":

25/ The parties' differing estimates of the number of pupils 
to be transported were because of differing assumptions about 
the rules that might govern a future transportation system.

36



... The court concludes that approximately 
one—third of the total enrollment or some 
33,000 pupils would have to be bused under 
the Stolee plan. (R. 673)

The court accepted plaintiffs' basis of deciding eligibility 

by whether pupils lived 1-1/2 miles from a school, the distance 

being derived from Georgia law. Ga. Code Ann. § 32-618 (d).

The board's estimates based on one mile were rejected.

The difference between the court’s estimate and plaintiffs' 
reflect the court s thought that if any free busing is given 

equal protection would demand that all pupils living over 1—1/2 

miles from school be given free transportation whether or not 

they remain at their "neighborhood school" under the plan.

(R. 673) Plaintiffs contended that a workable and fair plan 

might provide free buses for only those pupils in non-contiguous

25/ (Continued)
Estimates

Plaintiffs Board
Elementary Schools: Series I

Series II 
Series III

0
2,304

12,853
0

6,814
12,402

Junior High and Middle Schools 560 879
High Schools 7,474* 27.670

Total 23,191 47,765
* Total eligible 9,965 less estimated 

25% self transportation by auto, etc.

37



areas who would most need transportation and whose present sit-
26/

uation would be most drastically changed. But plaintiffs, of 

course, have no objection to a more generous policy which both 

the district court and the board preferred if busing is to be 

ordered. Plaintiffs merely urge that if busing resources are 

at a premium, the minimum number to implement the plan is 
smaller.

2. Time and Distance. The court below was "of the view 

that transportation for the bulk of the pupils would consume an 

average of 35-45 minutes each way in Atlanta traffic, which is 

notoriously atrocious during rush hours." (R. 673) We believe 

this finding at least slightly overstates the "average" travel 

time, but the difference is probably unimportant for present 

purposes. Plaintiffs made a thorough over-the-road survey of 

the times and distances between the paired schools and non-con- 

tiguous zones (Ex. P-39; R. 189-209). The survey checked the 

pairs that were farthest apart— the Group III elementary schools 

and the non-contiguous high school groups. The closer schools 

in Groups I and II and the contiguous high school zones were not 

listed in the survey because they were obviously shorter and

26/ See Plaintiffs' Proposed Findings and Conclusions, R. 642. 
Plaintiffs cited the Eighth Circuit rule. Clark v. Board of 
Education of Little Rock School District, 449 F.2d 493, 499 
(8th Cir. 1971).

38



similar to current patterns— but their inclusion would make the 

overall average less than that stated by the court.

Plaintiffs' time and distance study (P-39) conducted by 

Thomas Harley, was based on driving an automobile at speeds 

which simulated bus travel along the routes between paired 

schools. Other pairings similar to those tested were also iden­

tified. P-39. Harley's speed and routes were cross checked 

with Atlanta Transit system experience. R. 226-230. Harley 

found that the times and distances between the Group III schools 

and non-contiguous high school zones ranged from a high of 46 

minutes and 15 miles to a low of 8 minutes and 2.4 miles. The 

median trip was about 26 minutes and 9 miles; the average about 

26 minutes and 10 miles. (Calculated from Ex. P-39.)

3. Comparison of Busing Distances. The average number of 

miles traveled one-way per trip by school bus for the entire 

state of Georgia in recent years was as follows (Ex. P-18):

Thus, the longest distance traveled on any route under plain­

tiffs' plan - 15 miles - is equal to the average trip traveled 

in Georgia by school bus in 1970-71. The present school bus 

service in Atlanta, discussed below, also averages 15 miles per

1955-56
1960-61
1966- 67
1967- 68
1968- 69
1969- 70
1970- 71

19.3
18.5 
17.9 
17.7
17.3
16.6 
15.0

39



school trip. R. 419; Ex. P-38. Busing under plaintiffs' plan

is well within the distance which is conventional and accepted
27/

in Atlanta and in other Georgia school systems today.

4. Present Busing - 39,000 Daily Rides. Many of the 

33,000 pupils the court found would be bused by plaintiffs' plan

27/ See Exhibit P-18 and depositions of John Maddox, Ex. P-75, 
R. 390-394. The Georgia Department of Education reported that 
in 1970-71, 565,830 Georgia pupils rode school buses daily; 
517,206 lived more than 1-1/2 miles from school. The State 
reported the following statistics for 1970-71:

Number of Buses 5,413

Number of Trips 9,521

Miles Traveled: 
One Way:

Total Daily 142,707
Per Bus 26.4
Per Trip 15.0

Annual:
Total 51,257,374
Per Bus 9,469
Per Trip 5,384

Pupils Transported:
Total 565,830
Per Bus 104.5
Per Trip 59.4

Expenditures (per annum):
Total $25,226,540.78
Bus $4,660.36
Trip $2,649.57
Child $44.58
Mile 49.2

40



already ride buses every day. The complexity of the current

arrangement makes the exact overlap unclear. The central fact

is that in 1971-72 there were 39,414 daily student rides (R.

414-415) publicly subsidized on buses operated by the Metropolitan

Atlanta Rapid Transit Authority (MARTA). Ex. P-35, P. 36, P-37a,

P—37b, P—38. Eighty—five or 90% of these were students in

Atlanta City public schools (R. 414). About 40% of the 39,000

rides are in the morning and 60% are in the afternoon (R. 422).

The present school busing in Atlanta public schools was

described by William Nix, Chief Transportation Engineer,

Metropolitan Atlanta Rapid Transit Authority, whose expertise

was stipulated (R. 395-429). MARTA is a "governmental body"
28/

under the laws of Georgia (R. 416).

Nix testified MARTA provides bus service to Atlanta public 
schools under three arrangements:

(a) Special Bus Service. Since the early 1940's MARTA 

or its predecessor ATS, has offered school children in the

28/ Georgia Laws 1965, p. 2243; Georgia Laws 1966, p. 3264; 
and Georgia Laws 1971, pp. 2082, 2092; Constitution of Ga.,
Art. VII (Ga. Code Ann. §§ 2-8601 to 2-8605). On February 16, 
1972, MARTA, through a purchase of all stock of the former 
Atlanta Transit System (ATS), became the public authority 
charged with operating all public transportation services 
presently used by the Atlanta school system. MARTA has con­
tinued to operate under policies established by ATS for all 
purposes relevant to this suit, and the testimony of William G. 
Nix relating to the ATS, describes present MARTA practices.

41



4
metropolitan area of Atlanta "Special Bus Service." Special 

buses make a "school run" before or after their regular routes. 

MARTA allots 99 buses in the morning and 189 afternoon, for 

schools in the Atlanta metropolitan area (Ex. P-38) .

Approximately 85%-90% of such Special Bus Service is for 

the benefit of the Atlanta City public school system with 52 

elementary and 26 high schools in the Atlanta system having 

special routes (Ex. P-36). MARTA makes 467 trips per day on 

Special School Runs for a total of 7,004 miles per day or 24 

miles per average bus trip and 15 miles per school trip. Ex. P-38 

The runs average 45.5 passengers per trip. Ibid. A partial fare 

of 10 cents is charged student riders. No other monies are 

paid to MARTA for school runs, and student fares do not cover 

the actual costs. General fares of non-school passengers must 

compensate for a yearly deficit of $535,100 (Ex. P-37a), caused 

by the Special School Runs.

(b) Contract Buses. In 1971-72 MARTA provided eight 

charter buses for students in "majority-to-minority" desegrega­

tion transfers. Unlike Special Bus Service, charter buses are 

free to students and paid for by the Atlanta Board at $50 per 

bus per day, or a yearly total of about $112,000 (R. 427).

(c) Student Riders on Regular Bus Routes. MARTA also 

offers a reduced 10 cents fare to students using regularly

42



scheduled bus routes. Nix testified it was impossible to esti­

mate the exact subsidy provided by MARTA for this group but 

that the ten cent fare in effect since the 1950's did not cover 

the cost. Of the total 39,414 daily student riders, 42.6% are 

school passengers on regular bus runs, while 57.7% rode on 
special service (Ex. P-376).

The demands for Special Bus Service for Atlanta public 

schools has increased annually. ATS has turned down approxi­

mately 30 requests annually for Special Bus Service.

We estimate that more than $1,189,432.20 is spent annually
29/

for transporting students to Atlanta public schools.

5* Use of Busing to Segregate Pupils. The former superin­

tendent of schools, Miss Ira Jarrell, testified in 1959 that 

the Atlanta public school system paid for transportation of black

29/ Estimated as follows (based on 85% of MARTA totals for 
city schools):

$ 355,470.00
454,835.00

267,127.20
1 1 2,0 0 0 . 0 0

$1,189,432.20 
+ unknown

Paid by students riding special runs 
Subsidy provided by MARTA for special 

runs
Student fares paid on regular service 
Contract Bus Service, paid by Atlanta 

Board of Education

Subsidy by MARTA for students on regu­
lar runs

Ex. P-37a, 37b; R. 412, 427.

43



children from an area where there was no black school to a 

segregated school in another part of the City. These pupils 

in the neighborhood of the former Philadelphia School were 

bused to Thomas Oliver School (all within the city limits) on 

buses operated by the county school system. The Atlanta school 

system paid for this transportation by contract arrangement 
with the county. See Ex. P-40.

Exhibit P-27, a school board bond proposal dated May 10, 
1954, shows busing in 1954:

In the Southwest high school area many students 
are transported two and three miles to J. C.
Nsrris School. This is being done in order to 
prevent double sessions at Cascade and Venetian 
Hills. (Ex. P-27, p. 1)

And, of course, the special bus runs of ATS (now MARTA) 

were established years before desegregation began when state law 

required bus segregation. Georgia Code Ann. § 68-616. The 

school system cooperated with the bus company in arranging the 

special runs. School opening and closing hours are adjusted 

to accommodate the practical requirements of the bus company. 

Exhibit P-26 shows the staggered schedules; and see Dr. Cook's 
Deposition, pp. 16-18.

6* National School Bus Statistics. In 1969-70, there were 

18,757,735 pupils transported in the United States at public 
expense. Ex. P-22.

44



The National Safety Council reports that transportation by 

school bus is safer than other methods of going to and from 

school and accounts for a very tiny proportion of school acci­
dents. See P-23 and P-24.

7. Cost of Busing Under Plan. The court found that plain­

tiffs' plan would require 200 operating buses and 20 spares.

The court found the initial investment would be $13,500 to 

$14,000 per bus or $2.97 to $3.08 million dollars plus $1 mil­

lion for garages, or a total of $4 million. The court estimated 

operating costs at $40 per day per bus or 1.8 million dollars 
annually.

Although we think nothing in the case hinges on the dif­

ference, plaintiffs believe the court's estimate is too high.

We acknowledge that precision in such advance estimates is 

impossible, but other systems operate much more cheaply. The 

record contains much data on the busing experience of other 

systems. P-18, P-19, P-20, P-21, P-74.

Dr. Stolee estimated the cost of 100 buses needed for the 

plan by various methods. See Ex. P-14. He estimated the cost 

from $581,000 to $1,033,000. Ibid. Dr. Stolee also explained 

how some districts avoid any capital outlay by contracting for 
bus service. Ibid.

The 1970-71 Georgia statewide average busing costs was 

$44.58 per pupil per year, and $25.89 per bus per day

45



($4,660 -*- 180 days). Ex. P-18, Table 1. Using the court's 

figure of 33,000 pupils, the annual cost would be $1.47 mil­

lion at the Georgia average per pupil cost. Using the court's 

figure of 220 buses, the annual cost would be $1,025 million 

at the Georgia average per bus cost. Using the Fulton County 

system's average per bus cost ($6,228.11) and the court's 220 

buses would produce an annual operating expense of $1.37 million. 
P-14.

The Atlanta school district expense budget for 1971-72 was 

over 92 million dollars (R. 523). The court's transportation 

estimate of $1.8 million represents 1.9% of the annual school 

budget. The $92 million budget amounts to about $511,111 a day 

for a 180 day school year; if transportation under the plan 

costs $1.8 million, it would be less than the cost of four days 
of school operation.

E. Facts on the "White Flight" Issue.

The district court said in its July 28, 1971, opinion 

that "Atlanta stands on the brink of becoming an all-black city" 

and a busing plan would "cause such a result in a few months 

time." The June 23, 1972, opinion reiterated that "Atlanta 

will most likely evolve into an all-black system if the plain­

tiffs’ plan for busing is adopted." Plaintiffs have argued that 

fear of "white flight" is an insufficient defense as a matter of

46



law (see Argument, infra). At the recent trial they also chal­

lenged the factual basis of the prediction. Plaintiffs offered

testimony by a leading population expert that there was no

basis for concluding that the plan or any other single event

would cause such a shift. As the board has offered virtually
30/

no evidence on the question, the only competent evidence in 

the record on this subject is Dr. Taeuber's testimony and 

exhibits. (Ex. P-50, P-51, P-52, P-56, P-57; R. 241, et seq.)

Karl E. Taeuber is a nationally recognized expert on 

population studies and migration patterns who has devoted par­

ticular attention to the black population. His leading book, 

Negroes in Cities (Ex. P-54), includes a special focus on ten 

cities— one of them, fortuitously, was Atlanta. Dr. Taeuber's 

testimony makes it evident that the causes of population move­

ments in American cities and in Atlanta particularly involve 

much more complex factors than simple white flight from blacks 

in the schools (R. 307-311). He said the universal trend of 

suburbanization was not created by the school situation. R. 310. 

He rejected the layman's notion that a city like Atlanta could 

become all-black in response to a single event such as a school

30/ Except see R. 509-511, where Dr. Cook reported the decreas­
ing white school population and said he thought parents would 
have a "mixed reaction" to the Stolee Plan: “where long dis­
tances are required, I don't think the white parents would buy it."

47



desegregation decree. Indeed, he was unwilling to assume that

Atlanta was about to become an all-black city (R. 280-283).

Dr. Taeuber's professional judgment was that:

... I do not see any established basis for 
assuming that a complete desegregation of the 
city schools would accelerate the rate at 
which whites are leaving the city. R. 277.

Dr. Taeuber prepared a series of exhibits summarizing 

facts about black-white migration in the Atlanta area and else­

where. He pointed out that "there is no city which has had 

this kind of complete desegregation where this has happened"

(R. 277); that in a long list of cities the rate of white popu­

lation movement in or out seemed unrelated to the amount of 

school segregation (Ex. P-57; R. 278-280); that there were 

still 91 thousand white households in Atlanta, including many 

with children (compared with 71 thousand black families); that 

economics of the housing market would inhibit any mass outmigra­

tion, since the city had large areas of desirable homes, had too 

few blacks to replace all the white households and the suburbs 

had too few homes (253 thousand white units) to rapidly accommo­

date any large part of the 91,000 white families. (P-56; R. 

281-282.) He pointed out that the trend of white movement to 

the suburbs and growth of suburbs began and continued very 

rapidly since 1945 during periods when school segregation was 

total in Atlanta (R. 284); that "black flight" from the central

48



city was just as inevitable as white outmigration and central

city population density is decreasing as black families also

seek the advantage of suburban homes; that blacks in the Atlanta

suburbs are just as segregated as those in the cities (R. 287).
31/We quote below Dr. Taeuber's summary statement at trial.

31/ Dr. Taeuber at R. 307-311;

Yes, the general process of movement to the 
suburbs is pretty much universal in American large 
cities. The process of out-movement of whites to 
suburbs is very common, has been going on, as I 
mentioned, very rapidly, particularly since 1945; 
but in many cities even prior to that. Today many 
of the whites in particular who come to metropol­
itan areas move originally to the suburbs and not 
to the city at all, so that the whites that are 
moving out are not being replaced completely by 
other whites coming in.

In some cities, the number of blacks moving in 
is more than the number of whites moving out, in 
others it is fewer; but in any case, a large number 
of cities have the kind of jobs and economic oppor- 

for blacks so that they continue to attract 
a black population and are increasing in black popu­
lation and decreasing in white population. This 
becomes more rapid once there is a substantial black 
population in a city, because it produces lots of 
children and eventually 18 year olds and new families 
who were born and raised in the city.

The process of white flight, so called, is one 
that exists even where there are no blacks coming 
into the city. It occurs throughout the northwest 
and west coast, in regions that until very recent 
years have had minim school black population. [sic]

Suburbanization is the process, and I didn't 
emphasis [sic] before but the prefix "sub" on suburb­
anization, you should look at the word urbanization.

49



We are unclear, on reading the opinion below, just what 

parts of Dr. Taeuber’s testimony the court accepted or rejected.

31/ (Continued)

All we are seeing is a continued process of growth 
of these urban areas. We have drawn a line around 
the core and said this is the central city, the rest 
is called suburbs; but it is all the same process 
that has been going on from the beginning of the 
country, people coming to a new city, the new hous­
ing goes up at the edges, the built up area gets 
bigger and bigger, and once it goes beyond the city 
boundries [sic] if the boundries [sic] don't expand, 
then we call it suburbanization, but is the same 
social and economic process.

With respect to the impact of schooling, we do 
find that as mentioned yesterday, the location of a 
school helps determine whether a neighborhood is 
considered to be black or white. If it is a black 
school it tends to define the surrounding neighbor­
hood as being for black residents and similarly, if 
it is a white school it tends to define it as being 
for white. This is true, this was true in the per­
iod when schools were officially labeled, but, it 
continues to be true as a matter of social process, 
the way the housing market works, the way it adver­
tises, as long as a school can be identified as being 
predominantly black or white.

This stirs up the individual whites, perhaps, who 
are in a neighborhood to move, perhaps a few years 
before they would move anyway, so that at the 
boundries [sic] of a black area there is this transi­
tion area. Here is where to the extent that whites 
are afraid of their children going to school with 
blacks, this is the only place where that really 
comes in to play and they move elsewhere in the city 
or out to the suburbs if they can afford it; and the 
general process is not caused solely by the white 
preception [sic] of the public school system, it has 
to do with transportation, the availability of parks.

50



With deference, we find the court's discussion somewhat confusing:

the extent that he concludes that school orders 
have effect on this population evolution, his 
opinions are rejected. [Footnote omitted] To the 
extent that Atlanta's problem is special and unique 
as one of the largest school districts with a large 
Black-majority pupil ratio, they are accepted 
(R. 677-679)

31/ (Continued)

whether they can have an apartment or house, with 
how much traffic is on a street, how close they are 
to the countryside with the whole variety of aspects 
of life style and of kind of housing, in addition to 
the character of the local public school system.

Now, there was a question as to whether the 
schools being desegregated all at once would lead 
to a sudden white flight. We are looking into the 
future, all things are possible; but if all whites 
in the city, regardless of where they lived, knew 
that their local school were not going to become 
all black by degree [sic - decree?] the next day, if 
they knew that wherever they moved within the city 
they would encounter the same quality of school, the 
same percentage white and black in that school, it 
seems to me this would remove rather than intensify 
some of the fears, some of the perception of why the 
city is not a desirable place to live. There is a 
lot of fear and uncertainty these days because nobody 
knows what is going to happen, and it seems to me that 
if this situation is clarified, then it will do per­
haps more to reduce the relevance of schooling as a 
factor in mobility than it will to increase it.
Hence —

THE COURT: Then I take it that as an expert
you believe the total plan such as suggested by 
the plaintiffs here would retard the white 
flight.

THE WITNESS: I think it might have some
slight effect in that direction, but I do not

51



In any event, the court adhered to the view that the busing 

plan would transform Atlanta into an all-black system. But 

there is no evidence that keeping schools in Atlanta segregated 

— as they are now and have been— will do anything to change the 

current trend of population movement. Whites are leaving a 

segregated Atlanta school system in the 1970's just as they 

did in the 1940's, 1950's and 1960's. Even if Dr. Taeuber's 

cautiously stated opinion that desegregation would retard the 

trend is rejected, there is no basis for concluding that con­

tinued segregation will retard the trend.

F • Dr. Stolee's Proposed Staff Desegregation Plan.

Dr. Stolee also presented a plan for staff desegrega­

tion. Ex. P-2. The plan provided for filling all professional

31/ (Continued)

say major effect because there is [sic] so many 
factors, other than schooling that influence 
this. It is a universal trend that is not created 
by the school situation, it cannot be more than 
Partially retarded by the school situation if 
you treat the city as a —

THE COURT: You believe it would help retard
white flight, is that a fair statement?

THE WITNESS: There is a good argument —
okay, I will agree.

THE COURT: In other words, your opinion is
th$t it would help retard white flight to put in 
a plan such as the plaintiffs have here.

THE WITNESS: Yes.

52



class vacancies by use of reasonable, nondiscriminatory and 

reviewable standards and procedures, for written qualifications 

and evaluations, and for record keeping for not less than three 

years. The plan would establish a presumption that blacks in 

each professional classification should reflect the racial 

ratio of black teachers in the system:

In the event the racial composition of any pro­
fessional class fails at any time to approximate 
the racial ratio of black to white teachers in 
the school system this shall be considered prima 
facie evidence of racial discrimination and, 
upon challenge, the burden shall be upon the 
school districts to demonstrate by clear and 
convincing evidence that it acted on the basis 
of such reasonable, nondiscriminatory and review- 
able standards and procedures without racial 
discrimination. Ex. P-2.

The plan provided for an affirmative recruiting effort to recruit 

black educators, and provisions relating to dismissals, nonre­

newals, demotions and promotions on a nondiscriminatory basis, 

and for semi-annual reporting of racial statistics in each 
professional class.

53



ARGUMENT

I.

The Atlanta Public School System Is in 
Violation of the Fourteenth Amendment.

A. Pupil Assignments

The Atlanta school system's violation of the Fourteenth 

Amendment prohibition against racial segregation in public edu­

cation is established by a mass of uncontroverted proof. The 

violation is clearly shown. The case presents no questions 

which have not been answered by binding decisions of this Court 
and the Supreme Court.

The constitutional violation is that the Atlanta system, 

which segregated pupils by race in accordance with state law, 

has never taken sufficient steps to dismantle the dual system of 

segregated schools. Green v. County School Board of New Kent 

County, 391 U.S. 430 (1968). After 14 years of litigation in 

this suit, the system assigns four-fifths of black children in 

90% plus black schools and three-fifths of them in schools 
which are 99%-100% black.

Atlanta schools still operate under a 1970 zoning plan 

which this Court vacated more than a year ago. Calhoun v. Cook. 

443 F .2d 1174 (5th Cir., June 10, 1971). At that time this 

Court set aside an order approving the board's plan because it

54



plainly did not meet the desegregation requirements of the
32y

Supreme Court's then recent decisions in Swann and Davis. It 

was clear then and is clear now that Atlanta has less desegrega­

tion than Mobile did when the Supreme Court decided Davis. The 

Davis opinion indicates that in 1970-71 Mobile had 64% of its 

Negro elementary pupils and slightly more than half of its 

Negro secondary pupils in 90% or more Negro schools. 402 U.S. 

33, 37. The comparable figures for Atlanta in 1971-72 are 82% 

of elementary and 83% of secondary pupils in 90% plus black 

schools. Indeed, Atlanta has more school segregation than was 

projected in Mobile under the Justice Department plan approved 

in the district court, before this Court modified it to increase 

desegregation. Davis v. Board of School Commissioners of Mobile 
County, 430 F.2d 883, 887 (5th Cir. 1970).

There is no dispute that many of Atlanta's present-day 

all-black schools are the same facilities which were established 

as all—black prior to any desegregation and which have never 

been desegregated. The opinion below acknowledged this proof 
stating:

11/ Swann v. Charlotte-Mecklenburg Board of Education. 402 
U.S. 1 (1971); Davis v. Board of School Commissioners of Mobile 
County. 402 U.S. 33 (1971). ~  ~

55



If each and every school-house must be separately 
desegregated at least one time before a system is 
legally unitary, then such a plan may be required, 
regardless of the consequences, as it is true that 
some predominantly Black schools have always been 
so. R. 680. (Emphasis added)

The Green and Swann decisions are unequivocal in their 

answers to the question implied in the quoted language. Of 

course, every school must be desegregated if segregation is to 

be eliminated "root and branch." Green commands "steps which 

promise realistically to convert promptly to a system without 

a 'white' school and a 'Negro' school, but just schools." 391 

U.S. 430, 442. Swann requires that dual systems achieve "the 

greatest possible degree of actual desegregation" and creates a 

"presumption against schools that are substantially dispropor­

tionate in their racial composition." 402 U.S. 1, 26. Admittedly, 

Swann announces no absolute per se ban on one-race schools.

But such schools may be justified only by a showing by school 

authorities that "their racial composition is not the result of 

present or past discriminatory action on their part." 402 U.S.
1, 26.

Atlanta cannot make a showing which explains its 83 all­

black and 28 all-white schools as not being the products of 

discrimination. The attempt to pass off the school segregation 

as the inevitable result of housing segregation fails here, as 

it did in this Court's decisions in the Fort Worth, Texas and

56



Jefferson Parish, Louisiana cases. Flax v. Potts, ___ F.2d ___

(5th Cir. 1972) [No. 71-2715, July 14, 1972]; Dandridge v.

Jefferson Parish School Board. 456 F.2d 552 (5th Cir. 1972).

The proof belies the argument as the vast majority of the

Atlanta schools were established in what Swann refers to as "the

classic pattern of building schools specifically intended for

Negro or white students." 402 U.S. 1, 21. The claims of vast

numbers of so-called "resegregated" schools will not conceal

the vestiges of the dual system: the Superintendent has named

only 17 such schools and two-thirds of these were converted from

white to black before 1966, when there was only token desegre- 
33/

gation. Even the handful of schools which have shifted from 

white to all-black since 1966 cannot really support the argument, 

because this resegregation took place either during the free 

choice era when the board's rules virtually invited whites to 

flee integrated schools if they desire to escape desegregation, 

or during the regime of the present piecemeal zoning plan which 

also invites resegregation by limiting integration to a small 

handful of schools in border areas separating white and black 

residential areas. To the extent that there has been resegrega— 

tion in Atlanta it serves to condemn rather than justify the 3

3 3/ 1966-67 school segregation indices were 97 (elementary)
and 95 (secondary). Ex. P-50.

57



present assignment plan which has eschewed techniques of 

desegregation required in other cities throughout this Circuit, 
even before Swann and Davis.

The Atlanta board has yet to do any school pairing two 

years after this Court's decisions required pairing or cluster­

ing in other cities all over the Circuit. We quote from Judge 

Goldberg's opinion in Allen v. Board of Public Instruction of 
Broward County, Fla.. 432 F.2d 362, 367 (1970):

In the conversion from dual school systems 
based on race to unitary school systems, the con­
tinued existence of all-black or virtually all­
black schools is unacceptable where reasonable 
alternatives exist. And it is clear that one 
acceptable way to achieve reasonable alternatives 
is by pairing schools. The tenor of our decisions 
is unmistakable: where all-black or virtually
all-black schools remain under a zoning plan, but 
it is practicable to desegregate some or all of 
the black schools by using the tool of pairing, 
the tool must be used. Thus we have required the 
pairing gr clustering of schools in Dade County, 
Florida, in Pinellas County, Florida,7 in 
Hillsborough County, Florida,8 in Alachua County, 
Florida, in Clarksdale, Mississippi,^  and in

Pate v. Dade County School Board. 5 Cir. 1970,
434 F .2d 1151.

Bradley v. Board of Public Instruction of Pinellas 
County, 5 Cir. 1970, 431 F.2d 1377.

Mannings v. Board of Public Instruction of 
Hillsborough County. 5 Cir. 1970, 427 F.2d 874.

Wright v. Board of Public Instruction of Alachua 
County, 5 Cir. 1970, 431 F.2d 1200.

Henry v. Clarksdale Municipal Separate School 
District, 5 Cir. 1970, 433 F.2d 387.

58



Jackson, Mississippi, to mention only a few 
instances. It is now clear beyond peradventure 
that the tool of school pairing— a most viable 
tool in the school desegregation process— must 
be embraced where it is practicable and desegre­
gation cannot be achieved by other means.

Singleton v. Jackson Municipal Separate 
School District. 5 Cir. 1970, 432 F.2d 927.

Nor has the Atlanta board used the other techniques 

embraced by Swann and Davis, e .g ., non-contiguous zones, trans­

portation zones, and busing. Swann held that "desegregation 

plans cannot be limited to the walk-in school" (402 U.S. at 30) 

and rejected arguments against non-contiguous zoning stating 

the pairing and grouping of noncontiguous school zones is a 

permissible tool." 402 U.S. at 28. Atlanta simply has no 

justification for not having tried any non-contiguous zoning. 

The board's argument that it cannot be made to furnish trans­

portation because it owns no buses is plainly inadequate under 

this Court's decisions in recent school cases. United States v.

Greenwood Municipal Separate School District. ___ F.2d ___ (5th

Cir. 1972) [No. 71-2773, April 11, 1972]; Brown v. Board of

Education of the City of Bessemer. ___ F.2d ___ (5th Cir. 1972)

[No. 7 1 - 2 8 9 2 ,  July 11 ,  1 9 7 2 ] .  See also Brewer v. School Board 

of the City of Norfolk, Va.. 45 6  F.2d 9 4 3 ,  9 4 6 - 9 4 7  (4th Cir. 

1 9 7 2 ) ,  cert, den., ___ u . S .  ____ (1972)  [40 U . S . L .  Week 3 5 4 0 ] .

59



The board's argument that segregation in the city's all­

black schools is lawful because it is not caused by state action 

but by housing discrimination for which the board is not respon­

sible also fails for other reasons. The board has not tried 

available techniques to dismantle segregation, as we have just 

discussed. The board's argument that the school segregation is 

not caused by state action also fails because this record 

plainly shows that state action, including school board action, 

did cause the housing segregation which makes integration of 

the schools more difficult. The agencies of the state cannot 

create housing segregation by engaging in discriminatory housing 

practices and then use this unlawful result to justify school 

segregation. This Court so held 14 years ago. In Holland v. 

Board of Public Instruction of Palm Beach County. 258 F.2d 730, 

732 (5th Cir. 1958), Judge Rives said:

In the light of compulsory residential segrega­
tion by city ordinance, it is wholly unrealistic to 
assume that the complete segregation existing in 
the public schools is either voluntary or the inci­
dental result of valid rules not based on race.

3.VLater decisions have reached the same conclusion.

3 4/ Brewer v. School Board of City of Norfolk. 397 F.2d 37, 41 
(4th Cir. 1968); Dowell v. School Board of Oklahoma City. 244 
F. Supp. 971, 975 (W.D. Okla. 1955), aff'd, 375 F.2d 158 (10th 
Cir.), cert. denied, 387 U.S. 931 (1967). See also the Fourth 
Circuit decision in Swann v. Charlotte-Mecklenburg Bd. of Educ., 
431 F .2d 138, 141 (4th Cir. 1970), aff'd insofar as it affirmed

60



B. Faculty and Staff Assignments

The Atlanta system also violates the constitutional require­

ment of eliminating faculty segregation. The evidence shows 

that in both school years since the 1970 faculty desegregation 

order was entered, Atlanta has continued a large number of 

schools in which the racial composition of the faculty is sub­

stantially at variance with the system-wide ratio. The variation 

was so substantial as to disqualify the system from receiving 

federal funding under the Emergency School Assistance Program 

although other large cities in the area have complied.

The district court casts the question in terms of whether 

a system which once completely desegregated its faculty has a 

duty to constantly maintain a racially balanced pattern of 

faculty assignments thereafter. Having concluded in its 

July 28, 1972, opinion that such balance was required eachIV
year, the district court has now reversed its holding, which 

the school board had in any event ignored in the interim.

34/ (Continued)

district court, 402 U.S. 1 (1971). Cf. Henry v. Clarksdale 
Municipal Separate School Dist.. 409 F.2d 682, 689 (5th Cir. 
1969), cert, den., 396 U.S. 940 (1969).

3 V  "In this respect, it should be made clear that for the 
present, the Singleton-type faculty assignment ordered by 
the court on March 20, 1970, calls for annual adjustment." 
Opinion of July 28, 1971, note 10.

61



We think the court answered a question which the Atlanta

facts do not present since Atlanta has not had its faculties in

compliance with the Singleton rule in either the 1970-71 or

1971-72 school terms. See Ex. P-16. Plaintiffs have so con-
36/

tended both orally at trial and in their written proposed
37/

findings and conclusions in the district court. The opinion 

below says that plaintiffs agreed at trial that the board com­

plied with the faculty desegregation order in March 1970. But 

the record shows that plaintiffs' counsel merely avoided mak­

ing any changes about March, 1970 and said that they objected to 

the assignments "this year" (1971-72) and that the 1970 faculty

assignment exhibits showed the same faculty pattern we have 
38/

now.

36/ R. 23-25, 169-172

12/ R. 625-626.

38/ R. 178-179:

THE COURT: Do the Plaintiffs contend that they
were not at the time of the computer shake-up in 
compliance?

MRS. RINDSKOPF: You mean back in 1970?
THE COURT: Well—

MRS. RINDSKOPF: It was 1970, I think the
original order was in May.

MR. FORTSON: March of 1970.

THE COURT: At that time were they in compliance?

62



If the Atlanta board has ever desegregated its faculties

in accord with Singleton, it should present evidence to prove

it. The uncontroverted faculty assignment exhibits on record——
39/

based on board reports to the Department of Health, Education 

and Welfare (which are also in evidence, P-60, P-61, P-62,

P-63, P-64)— shows the pattern of overconcentration of black 

teachers in black schools and white teachers in white schools 
in 1970-71 and 1971-72.

II.

The Court Should Order Implementation 
of Plaintiffs' Plan

Plaintiffs' plan promises the results mandated by Swann 

v. Board of Education in that it attempts "to achieve the

38/ (Continued)

MRS. RINDSKOPF: We have not raised any objection
to that. Our question comes subsequently, your order 
dated July 28, last year makes very clear that they 
are to keep updating this. As of September this year 
they were not in compliance.

MR. NABRIT: If we look at the parallel exhibit
for 1970 which is in this pile, we see that there 
never was a real shift away from this pattern which 
we have now.

39/ This Court's October 1971 order (Calhoun v. Cook. 5th Cir. 
No. 71—2622) directed that the board make periodic reports to 
the court about the assignments of pupils and faculties. No 
such reports have been made, but the fall reports to HEW are 
in evidence.

63



greatest possible degree of actual desegregation" (402 U.S. 1, 

26). Plaintiffs' plan would eliminate all one-race schools and 

all schools which are substantially disproportionate in their 
racial composition.

Plaintiffs' plan uses reassignment techniques approved by 

the Supreme Court in Swann v. Board of Education, supra, and 

Davis v. Board of School Commissioners of Mobile County, 402 

U.S. 33 (1971. The Supreme Court made it clear in Swann and 

Davis that all such techniques should be used where necessary 

to eliminate segregation.

The plaintiffs' plan uses transportation in the same basic 

manner used in many school systems throughout the nation. The 

range of busing times and distances is well within the range 

of conventional practices in the state of Georgia and in Atlanta 

today. The longest bus route under plaintiffs' plan is 15 miles 

which was the average distance per trip for school buses in 

Georgia and in Atlanta. As the Supreme Court stated in Swann, 

"Desegregation plans cannot be limited to the walk-in school"
(402 U.S. at 30).

The district court has found that the Stolee plan is work­

able and feasible. The board's witness, Assistant Superintendent 

of Schools Ed. S. Cook, Jr., a 25 year veteran of the Atlanta 

system stated on direct examination that the Stolee plan would 

work:

64



After we received the plan in December we 
distributed it as widely as we could to our 
staff and sought comments and opinions on the 
plan. We are in pretty general agreement that 
this plan is a combination of a number of var­
iables, that is no better and no worse than a 
number of other possible combinations of the 
same variable. It is our opinion that the 
plan would work as presented. R. 495.

Dr. Cook s main concern about the plan was its projected cost

which the board estimated at more than $2.9 million annually

(much more than the district court found to be required).

R. 520-521. However, the school board's earlier comments on

the proposed plan contained in Exhibit P-68, a document prepared

by the board president as a preliminary reaction to the plan,

stated that "the money would be secondary if the proposal would

give Atlanta a thoroughly integrated student body."

Plaintiffs proposed plan is the only workable desegregation 

plan before the court which is capable of accomplishing complete 

desegregation of the Atlanta public schools. Since this work­

able plan is the only available plan capable of dis-establishing 

the dual system, it should be ordered implemented. Swann v. 

Charlotte-Mecklenburg Board of Education. 402 U.S. 1, 31 (1971); 

Carter v. West Feliciana Parish School Board. 396 U.S. 290, 292 

(1970) (concurring opinion of Mr. Justice Harlan and Mr. Justice 

White); United States v. Board of Education of Baldwin County.

Ga., 423 F .2d 1013, 1014 (5th Cir. 1970).

65



The Supreme Court of the United States has authoritatively 

declared, in a decision binding on this Court which takes pre­

cedence over any other laws to the contrary, that segregation 

in the public schools must be remedied forthwith. Alexander 

Vj, Holmes County Board of Education. 396 U.S. 19 (1969); Carter 

v. West Feliciana Parish School Board. 396 U.S. 290 (1970).

The school district's objection to the cost of transpor­

tation to desegregate the schools is not a legal ground for 

avoiding desegregation. The board's argument is in part prem­

ised upon the erroneous assertion that there is no present 

publicly financed school bus transportation in Atlanta. Although 

the form of the arrangement tends to conceal the subsidy, in 

fact, the adult population and taxpayers now subsidize about 

40,000 rides per day by school pupils traveling at reduced rates 

on buses operated by the Metropolitan Atlanta Rapid Transit 

Authority (MARTA), an agency of the State. The Supreme Court 

in Swann rejected arguments that the use of transportation to 

desegregate schools should be determined by the cost of such an 

arrangement. The Supreme Court overruled a Fourth Circuit deci- 

sion in Swann which held that the district court's elementary 

plan should be set aside because the cost of transportation 

placed an unreasonable burden upon the school board. The Supreme 

Court held that the extent to which transportation should be used

66



as a desegregation tool should turn on the effect of transpor­

tation on the pupils' health and education rather than on 

financial factors. it obviously would undermine the Fourteenth 

Amendment to hold that constitutional rights may be denied 

because it costs too much to afford them and the Supreme Court 

rejected arguments in Swann which would have had that effect.

The decision below that school segregation may be retained 

in Atlanta because of anticipated white flight from the school 

system is also erroneous. Indeed, just two weeks after the 

decision below, the Supreme Court unanimously rejected an argu­

ment that fear of white flight could justify an arrangement 

providing for less desegregation than was promised by an alter­

nate plan. United States v, Scotland Neck City Board of 

Education, --- U.S. ___ (1972) [40 U.S.L. Week 4817, 4819].

Mr. Justice Stewart's opinion for the Court concludes with 
these words:

The primary argument made by the respondents 
in support of Chapter 31 is that the separation 
of the Scotland Neck schools from those of 
Halifax County was necessary to avoid "white 
flight by Scotland Neck residents into private 
schools that would follow complete dismantling 
of the dual school system. Supplemental affi­
davits were submitted to the Court of Appeals 
documenting the degree to which the system has 
undergone a loss of students since the unitary 
school plan took effect in the fall of 1970. 
[Footnote omitted.] But while this development 
may be cause for deep concern to the respondents, 
it cannot, as the Court of Appeals recognized, 
be accepted as a reason for achieving anything 
less than complete uprooting of the dual public

67



school system. See Monroe v. Board of 
Commissioners, 391 U.S. 450, 459.

This Court also has held that neither the prospect of white 

flight in the face of desegregation, nor the fact that a school 

system has a heavy preponderance of black students, is a ground 

for not proceeding with a plan to convert to a unitary system. 

Anthony v. Marshall County Board of Education. 409 F.2d 1287, 

1289 (5th Cir. 1969), Judge Ainsworth wrote:

In declining to order discontinuance of the 
"freedom-of-choice" plans and substitute there­
for pairing or zoning, the District Court said 
that it based its ruling in part on the fact 
that white students would flee from public 
schools where Negro pupils heavily preponderated, 
and that there would be a "wholesale withdrawal" 
by white students. Such a conclusion is pre­
cluded by the clear mandate of the Supreme Court 
in Green.

The Marshall County system was 75% Negro but the court never 

suggested that this black majority lessened the duty to desegre­
gate.

Plaintiffs are not oblivious of the official predictions 

and widespread fears that desegregation in Atlanta may ultimately 

be frustrated by white flight. We think the best available evi­

dence indicates that this is not inevitable. Of course, official 

predictions of such flight actually encourage it, and may tend 

to become self-fulfilling prophecies. Such predictions suggest 

that the school system is about to become less adequate and stir

68



fears. But the basic point is that since Brown v. Board of

Education, 347 U.S. 483 (1954), opposition to desegregation has 

never been regarded as a justification for continuing the uncon­

stitutional segregated systems. See Cooper v. Aaron. 358 U.S. 1 
(1958).

The practical reality for black pupils in Atlanta, more than 

four-fifths of whom now attend black schools, is that their 

education can hardly become any more segregated than it is now 

if white flight to the suburbs or private schools is accelerated. 

Black pupils will never obtain a desegregated education by sur­

rendering their constitutional rights in fear of white flight.

The best hope for black children in Atlanta is a school system 

run in accord with the Constitution of the United States.

III.

Plaintiffs' Faculty and Staff Desegregation 
Plan Should Be Implemented

Faculty and staff desegregation is an integral part of a 

satisfactory school desegregation plan. Swann v. Charlotte- 

Mecklenburg Board of Education, 402 U.S. 1, 19-20. The court has 

previously ordered the district to assign faculties so that no 

school can be identified by the race of its teachers. The evi­

dence reflects that this goal has not been completely achieved. 

Black teachers are still more concentrated in schools with

69



predominantly black pupils and white teachers are overconcen­

trated in schools with white pupils. This tends to make 

desegregation of pupils more difficult. The process of faculty 

desegregation should be completed forthwith. Swann v. Charlotte- 

Mecklenburg Board of Education. 402 U.S. 1, 19 (1971); United 

States v. Montgomery County Board of Education. 395 U.S. 225 

(1969); Singleton v. Jackson Municipal Separate School District. 
419 F.2d 1211 (5th Cir. 1970).

The school board's March 27, 1972 action properly conforms
40/

to the board's constitutional obligation to avoid all dis­

crimination in its employment policies. The board has given an 

undertaking to remedy past discrimination by promising appro­

priate affirmative steps as creating new positions in the 

administrative hierarchy for black educators. But we believe 

the situation requires something more specific than a general 

undertaking to increase the number of blacks in key positions. 

Particularly where the board has set a target date for itself 

which is now still a year and a half away (December 31, 1973), 

the situation requires that the objectives to be achieved in

40/ See, e .g ., Colorado Anti-Discrimination Com, v. Continental 
Air Lines, 372 U.S. 714, 721 (1963); "But under our more recent 
decisions any state or federal law requiring applicants for any 
job to be turned away because of their color would be invalid 
under the Due Process Clause of the Fifth Amendment and the Due 
Process and Equal Protection Clauses of the Fourteenth Amendment."

70



bringing black educators more fully into the educational struc­

ture of the system be more precisely defined than they have 

been heretofore. We submit that Dr. Stolee's proposal presents 

a fitting framework for staff desegregation.

CONCLUSION

It is respectfully submitted that the judgment of the 

court below should be reversed and the case remanded with direc­

tions that the court enter an injunction directing the imple­

mentation of plaintiffs' proposed desegregation plan, that the 

board make necessary adjustments periodically to maintain the 

schools on a desegregated basis, and otherwise granting the 

relief sought in plaintiffs' "Motion for Adoption of Plaintiffs' 

Proposed Desegregation Plan and for Other Relief." Plaintiffs 

also request that this Court award, or direct the award of

appropriate costs and also counsel fees, pursuant to Section
41/

718 of the "Emergency School Aid Act."

41/ See Public Law 92-318 (June 23, 1972), Section 718 which 
provides:

ATTORNEY FEES

Sec. 718. Upon the entry of a final order 
by a court of the United States against a local 
educational agency, a State (or any agency 
thereof), or the United States (or any agency

71



Respectfully submitted,

■ifc XJAQK3REENBERG 
JAMIES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle
New York, N. Y. 10019 
212 586-8397

HOWARD MOORE, JR.
ELIZABETH R. RINDSKOPF 

Suite 1154
75 Piedmont Avenue, N.E.
Atlanta, Ga. 30303 
404 659-2200

Attorneys for Plaintiffs-Appellants

41/ (Continued)

thereof), for failure to comply with any provi­
sion of this title or for discrimination on the 
basis of race, color, or national origin in 
violation of title VI of the Civil Rights Act 
of 1964, or the fourteenth amendment to the Con­
stitution of the United States as they pertain 
to elementary and secondary education, the court, 
in its discretion, upon a finding that the pro­
ceedings were necessary to bring about compli­
ance, may allow the prevailing party, other than 
the United States, a reasonable attorney's fee 
as part of the costs.

See Newman v. Piggie Park Enterprises. 390 U.S. 400 (1968);
Thorpe v. Durham Housing Authority. 393 U.S. 268 (1969).

72



CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of July, 1972, a 

copy of the foregoing Brief for Plaintiffs-Appellants was 

served on the attorney for defendants-appellees, Warren C. 

Fortson, Esq., Smith, Cohen, Ringel, Kohler, Martin & Lowe, 

2400 First National Bank Tower, Atlanta, Georgia 30303, by 

United States air mail, special delivery, postage prepaid.

James M. Nabrit, III
Attorney for Plaint iffs-Appellants

73