Bivins v. Board of Public Education and Orphanage for Bibb County Supplemental Record on Appeal

    I n  t h e

llttttdi Urates ( to r t  cl
F oe the F ifth  Circuit

No. 21690

Shirley B ivins, et al.,

- Y -

Appellants,

B oard of P ublic E ducation and 
Orphanage for B ibb County, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF GEORGIA

SUPPLEMENTAL RECORD ON APPEAL

D onald L. H ollo well
859% Hunter Street, N. W. 
Atlanta, Georgia

J ack Greenberg 
Constance Baker Motley 
Derrick A. Bell, J r.

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



SUPPLEMENTAL INDEX

PAGE

Defendants’ Motion for Certification and Transmittal 
of Additional Record on Appeal ....... ......................  301

Defendants’ Written Argument .......... ......................... 304

Defendants’ Exhibits
Exhibit 1—Plaintiffs’ First Petition, December 9,
1954 ________ _______ ____________________  322
Exhibit 2—Plaintiffs’ Second Petition, August 25,
1955 ........ ........... ......... ................................. ......... 324
Exhibit 3—Preliminary Report of Defendants’ 
Special iCommittee  ............................................  326
Exhibit 4—Letter and Statement from Macon 
Council on Human Relations, February 23, 1961 .. 328
Exhibit 5—Letter of Dr. H. (}. Weaver, February 
27, 1961 ____ __________ _______- ........ ......... 332
Exhibit 6—Letter from Petitioners, March 8, 1963 
and Letter of Response from Dr. H. G. Weaver, 
March 12, 1963 .............. .....................................  333
Exhibit 7—Statement and Petition to Defendant 
Board March 14, 1963 ..................................... ...... 336
Exhibit 8—Letter from Defendant Board’s Attor­
ney on Legality of Desegregation, April 13, 1963 .. 338
Exhibit 9—Report of Rules and Regulations Com­
mittee and Special Committee, April 24, 1963 ___  343
Exhibit 10—Defendant Board’s Petition to the 
Superior Court of Bibb County, April, 1963 ......  345



11

PAGE

Exhibit 11—Declaratory Judgment—Superior
Court of Bibb County, July, 1963 .........................  354
Exhibit 12—(See Exhibit A to Defendants’ An­
swer at E. 23)—Resolution of Defendant Board .. 359
Exhibit 13—Procedure for Executing Student 
Transfer Request .................. ................................. 360
Exhibit 14—Principles of High School Transfers. 
Page 104 of 91st Annual Report of Defendant 
B oard..... .............. ..................................................  374
Exhibit 15—Vocational Education and the Plan 
for Integration, April 12, 1964 ............................ 376
Exhibit 16—Statement of Defendant Board..........  382



301

Defendants’ Motion for Certification and Transmittal 
of Additional Record on Appeal

I n the

DISTRICT COURT OF THE UNITED STATES 
Middle D istrict of Georgia 

Macon Division 

Civil Action No. 1926

Shirley B ivins, et al.,
Plaintiffs,

—v.—

B oard of P ublic E ducation and 
Orphanage for B ibb County, et al.,

Defendants.

Defendants respectfully represent to the Court:
1.

The Clerk of this Court on designation by plain tiffs- 
appellants of “the entire record in the subject case” has 
certified and transmitted to the United States Court of 
Appeals for the Fifth Circuit the complete reporter’s 
stenographic transcript of the proceedings at the hearing 
of said case together with the pleadings and orders of the 
Court in said case.

2.
Included in the stenographic transcript so certified is 

plaintiffs’ oral argument at the conclusion of the hearing, 
commencing at page 319 thereof, but numbered by the re-



302

Defendants’ Motion for Certification and Transmittal 
of Additional Record on Appeal

porter as page 1 following page 318. Said complete steno­
graphic transcript, including plaintiffs’ oral argument, is 
included in the printed record in the Court of Appeals which 
was supplied by plaintiffs pursuant to Eule 23 (9) of the 
Court of Appeals.

At the conclusion of the hearing on April 14, 1964, both 
sides were given by the Court the privilege of oral argu­
ment or written argument, as they might elect, and pur­
suant thereto defendants elected to reduce their argument 
to writing, which was filed with the Clerk and supplied to 
the Court on April 17, 1964, within the time provided. 
Plaintiffs elected to make oral argument which was re­
corded and transcribed by the reporter and included in his 
stenographic transcript.

4.
Whether plaintiffs’ oral argument included in the tran­

script and certified and transmitted by the Clerk of this 
Court and defendants’ written argument not so included or 
transmitted are technically parts of the entire record desig­
nated by plaintiffs-appellants may be questionable, but 
defendants consider in the nature of the subject case that 
both are pertinent and material to a clear understanding of 
the case on appeal, and that defendants’ written argument 
as well as plaintiffs’ oral argument should be certified and 
transmitted.

W herefore, defendants present this motion pursuant to 
Eule 75 (b) of the Eules of Civil Procedure and pray that 
the Clerk of this Court be directed to certify and transmit



303

Defendants’ Motion for Certification and Transmittal 
of Additional Record on Appeal

to the Court of Appeals a supplemental record to include 
defendants’ written argument on file in this Court.

Respectfully submitted,

C. B axter J ones 
1007 Persons Building 

Macon, Georgia 31201 
Attorney for Defendants

—4—
The within and foregoing Motion is hereby allowed and 

the Clerk of this Court is directed to supplement this 
record on appeal as requested. This 14 day of July, 1964.

W. A. B ootle,
U. 8. Judge.



304

—5—
Defendants’ Written Argument

April 17, 1964

Honorable W. A. Bootle 
United States Judge 
United States District Court 
Macon, Georgia

B,e: Shirley Bivins, et al, Plaintiffs
v. Board of Public Education and Orphanage 
for Bibb County, et al, Defendants 

Civil Action No. 1926

Dear Judge Bootle:
In lieu of the usual oral argument at the conclusion of 

the evidence we are “dictating” the argument in our office 
so that it can be transcribed and presented in written form. 
It is essentially informal, and is presented in this informal 
manner without particular effort at organization. We have 
attempted to condense it within reasonable limits.

Plaintiffs as representatives of a class filed this com­
plaint against the Board, the 'Superintendent and the in­
dividual members of the Board seeking relief from alleged 
discrimination against the members of their race. Subse­
quently the individual members of the Board were elim­
inated by amendment.

The defendants, who will be referred to herein merely as 
the Board, admitted without qualification that schools for 
white and Negro children had been and were being operated

— 6—

separately and that plaintiffs were entitled to appropriate 
relief as class representatives.



305

Defendants’ Written Argument

This court and the public generally are aware of the 
historical and traditional pattern of public school education 
in this area within the judicially approved concept of sepa­
rate but equal facilities, specifically required until 1961 by 
the Constitution and statutes of the State, and even there­
after until July, 1963, by defendants’ charter, and of the 
violence and travail that has followed the Supreme Court 
decision in Brown and which still continues in lessening 
degree. If nothing else these facts bear upon the good faith 
and past conduct of the Board in dealing with the subject. 
We think, however, that they continue to bear upon the 
immediate and future plans and programs of the Board as 
they are now presented to the court.

Mr. Hollowell argues for the plaintiffs that the Board 
has been preparing for this transition for nearly ten years 
and is now so well along that minimal additional time 
should be required. That is a misinterpretation of the testi­
mony. It is true that there has been recognition and dis­
cussion of the problem but not until recently directed to­
ward the solution of the problem in Bibb County. Until 
1961, following Brown, state and legislative resistance to 
change was intensified. By that time, whether to our credit 
or merely from resignation to the inevitable, the climate 
in the State, including the legislative climate, was changing.

—7—
Prior to 1961 a complaint had been filed in Atlanta, the 

capital and the most concentrated urban area in the State. 
All other communities were watching that case and nothing 
was being done elsewhere.

Desegregation of the Atlanta system actually commenced 
in September of 1961 and it was another year before the 
results of the Atlanta program could be evaluated on the



306

Defendants’ Written Argument

basis of actual experience. The fact that the Atlanta plan 
has progressed in an atmosphere of reasonable calm by no 
means indicates that it would have done so under a more 
precipitous or broader plan. It does indicate the proba­
bility that something comparable may now be done in Bibb 
County, but not that more sudden or more drastic steps may 
be taken here. That is to say, something was possible in 
Atlanta in 1961 which would have been utterly impossible 
only a few years earlier, and something more became pos­
sible in the 1963-64 school year, but the very fact that 
these accomplishments have been achieved proves the wis­
dom of the gradual approach to the problem which was and 
still is contemplated under the Atlanta plan.

Bibb County is now substantially in the position of 
Atlanta as late as two and one-half years ago, and there is 
absolutely no reason to think that anything is capable of 
accomplishment at the present time in Bibb County over and 
beyond that which was then accomplished in Atlanta. Even 
at that the Bibb County plan proposes the complete elim-

—8—
ination of the innumerable tests based on personality and 
psychological factors with which the Atlanta plan com­
menced. Actually the Bibb County plan proposes the com­
pletely liberal and unbiased and non-discriminatory treat­
ment of transfer applications which after two and one-half 
years of effort and experience the Atlanta Board now 
claims to be applying. In other words, on the basis of 
factors to be considered and tests to be applied we are 
today where Atlanta has been able to come after two and 
one-half years of effort and experience. Furthermore, we 
propose during the total transition period to actually catch 
up with Atlanta by doubling the number of grades to be 
desegregated in some years.



307

Defendants’ Written Argument

Just as it is in error to assume that preparations hereto­
fore made by the Bibb County Board now make it possible 
to proceed without preparation, neither is it permissible to 
say that the Board’s conduct in the past or at the present 
time condemns its motives or good faith. There is no point 
in arguing whether separate schools are g'ood or bad. It 
is not a question whether the Board approves or disap­
proves the steps which it proposes and which it recognizes 
as being required. In the fall of 1961 when desegregation 
commenced in Atlanta no Negro pupil had applied in 
Bibb County to attend a white school, nor has any applied 
since unless the present complaint constitutes such an 
application. No request or petition had been received from 
any group of Negro parents or citizens since 1955. It may

—9—
have been wishful thinking but at that time and until March 
of 1963 it seemed entirely possible to the Board that there 
was substantial satisfaction with the situation as it then 
existed in the local system. For reasons covered by the 
evidence the general communication from the Macon Coun­
cil on Human Relations of February 23, 1961, to various 
governmental units and authorities was not so considered.

Even after the legislative session of 1961 there remained 
the prohibition in the charter of the local Board with 
respect to which we now wish to comment. Following the 
communication of March 8, 1963, the Board of its own voli­
tion took steps to obtain a State Court interpretation of 
its charter and of its rights and powers thereunder. The 
objective of this proceeding was not to avoid or to delay 
desegregation but rather to make it possible. We believe 
this is made crystal clear from the documents and testi­
mony in evidence, including the letter from the Board’s 
attorney, the state court petition itself, the extract from 
the brief in the state court, and the order itself.



308

Defendants’ Written Argument

This order was obtained promptly in July of 1963, and 
thereupon the Board immediately faced up to the question 
whether it would really be better under all the circum­
stances for the Board to voluntarily initiate a program of 
desegregation or to act under court direction. We do 
not think this requires elaboration. It has been suggested 
that the Board could have worked out an agreement with 
representatives of the Negro race, but with whom would

— 10—

the agreement have been made, and upon whom would it 
have been binding?

If we have failed to impress the court with the Board’s 
good faith intention to comply with the orders of this court 
in this case it is due to the lack of skill of the Board’s 
attorney in presenting the Board’s case and not to the 
absence of such good faith intentions on the part of the 
Board. When the Board decided to await court action it 
was with the notice and knowledge that a petition had 
been prepared by plaintiffs and that it would be filed im­
mediately. The Board has done everything it could to 
expedite the proceeding since that time.

We hope that we have been able to demonstrate to the 
court that the Board is even more interested in the welfare 
and educational opportunities of the children of the County, 
both white and colored, than are the children themselves or 
their parents. The members of the Board are dedicated to 
that course. Particularly is this manifested in the area of 
vocational education which is under the direction of Mr. 
Kelley and who presented to the court the vocational pro­
gram in operation in the County, and we call the court’s 
attention to the fact that in the adult program Negroes 
attend classes with white persons. In the school-work pro­
gram and preparatory courses in the high schools the plan 
proposed by the Board will apply.



309

Defendants’ Written Argument

We have not attempted by evidence or otherwise to 
describe the disruptions and ill feelings which have been 
associated with desegregation of schools in our section, or

— 11—

to predict or project the extent to which they will continue 
in the future. Opposing counsel on cross examination 
pressed some of the witnesses rather closely on that sub­
ject, to name times and places, etc. The facts are that such 
terms as crisis, critical, violence, disorder and similar 
terms are found in almost every newspaper issue and in 
numerous articles and court decisions. In Bush, referred 
to by counsel, 308 F. 2d 491, as late as 1962, the court 
reviewed the turbulence of the climate in New Orleans and 
in the State of Louisiana in detailed and graphic terms.

Actually the Board does not think of itself as a litigant 
in this case but rather as a supplicant to the court for 
guidance and direction in a delicate and difficult field, and 
for approval of the plan submitted by the Board as one 
which under all the circumstances is reasonably designed 
to recognize and afford to the plaintiffs, and to the class 
represented by them, the rights to which they are entitled, 
and at the same time to accomplish the Board’s primary 
objective of providing the highest possible quality of public 
education to all the children of the county.

The court expects us to comment on Bush, supra, from 
which Mr. Hollowell quoted certain selected passages, and 
we certainly will. We think that Bush, and also Augustus, 
306 F. 2d 862, decided by the same court earlier in 1962, 
both support rather than disapprove the Board’s plan. But 
first certain clarifications are necessary.

We do not see how there can be any misinterpretation
—12—

of the Board’s plan, or what it purports or is intended to 
accomplish. Mr. Hollowell professes confusion as to cer-



310

Defendants’ Written Argument

tain of its provisions. If the language is not clear and 
adequate we want to make it entirely clear. As a “transi­
tion” plan it is a transfer plan. In its ultimate goal it 
ceases to be a transition plan. "We think this is well illus­
trated by a consideration of the precise questions which 
were dealt with in Bush (308 F. 2d 491), as we will later 
point out.

If there is any doubt we want to make the following 
things clear. In the initial year students now attending and 
registered in the 11th grade of any high school in the 
system will be afforded the right and ample opportunity 
immediately, while they are still registered in the 11th 
grade, to transfer for the 1964-65 school year to the 12th 
grade of another high school. Having so transferred they 
will then register in September of 1964 in the school to 
which they have been transferred. If prior to September, 
1964, they have not transferred to another school they will 
register in the school which they previously attended. Even 
then, under the Board’s rules at page 104 of its Annual 
Report, but within the limitations of those rules, a student 
may request transfer during the 1964-65 year. Any student 
who enters the school system for the first time in or for 
the 12th grade may choose the school which he wishes to 
attend and will register initially at that school. All of this 
is entirely without distinction based on race. As is true of 
any student in the system this is subject to questions of

—1 3 -
eligibility, availability of the facility, and the capacity of 
the school at which the student registers. In succeeding 
years as the plan becomes applicable to additional grades 
what we have said will continue to apply to the grade or 
grades already brought within the plan as well as to the 
additional grade or grades to be brought within the plan



311

Defendants’ Written Argument

that year. No student entering the system for the first time 
in any grade to which the plan has become or is then to 
become effective will be required to register at any school 
designated on the basis of race.

Furthermore, when the plan becomes effective in the first 
grade, applicable to students entering the system in that 
grade, there is complete freedom of choice on the part of 
the student to select the school which he wishes to attend. 
This also will be subject to non-discriminatory factors 
based on eligibility, availability and capacity. Thereafter 
the plan will continue to be a transfer plan as to students 
who have previously entered the system and who have 
previously enrolled in grades higher than the first grade. 
However, it will no longer be a transfer plan as to the 
first grade, or as to the students who enter the first grade 
under the plan, and as the first grade progresses through 
the system it will cease to be a transfer plan as to all 
students subsequently enrolling in the system.

Coming to Bush, supra, it was not until 1960, six years 
after Brown, that a plan of desegregation was considered in

—14—
Louisiana. There had been extensive litigation involving 
injunctions and contempts. The New Orleans plan involved 
in Bush started at the first grade and was to progress 
through the system at the rate of one grade per year. The 
court said:

“If dual school system had been done away with in 
first grade and plan of desegregating a year at a time 
beginning with first grade had been initiated six years 
after the 1954 desegregation decision, plan would have 
complied with ‘deliberate speed’ concept established by 
United States Supreme Court.” Id. 491.



312

Defendants’ Written Argument

Before the decision in 1962 the plan had been variously 
dealt with by the trial and appellate courts, to enlarge and 
then reduce the number of grades to which it would initially 
apply, but as finally approved in 1962 by the Court of Ap­
peals it embraced the first two grades, apparently to catch 
up after a delay of one year, and subsequent progression 
was at the rate of one grade per year. The vice in the plan 
which caused it to be disapproved in part was that students 
entering the first grade had to first register in a racially 
segregated school and then seek transfer to another school.

The portion of this decision which was quoted by Mr. 
Hollowell is relied on by him as condemning the Pupil 
Placement Act of that State. The court referred to a 6th 
Circuit case which tended to do so. However, the 5th Cir­
cuit Court condemned the Act only “when, with a fanfare

—15—
of trumpets, it is hailed as the instrument for carrying out 
a desegregation plan while all the time the entire public 
knows that in fact it is being used to maintain segregation 
by allowing a little token desegregation.” It condemned 
the Plan only to the extent that it required the first grade 
student to first register at a segregated school before he 
could seek transfer to a non-segregated school.

All courts have referred to a transition period and to 
“deliberate speed”. We do not think that decisions relating 
to systems in New York or California have significant ap­
plication to our local situation. They have their problems 
and are the ones to deal with them. In our area transfer 
plans during a transition period have consistently been ap­
proved and have never been rejected because they were 
transfer plans. Witness Atlanta. Counsel may have in 
mind that this court should try to guess what the Supreme 
Court may do in the Atlanta case now pending in that



313

Defendants’ Written Argument

court, or in the Virginia case argued at the same time, or 
what the 5th Circuit Court of Appeals may do in cases 
now pending in that court. We can only proceed on the 
decided cases, plus the recognized fact that the judicial dis­
cretion to be exercised is vested primarily in this court to 
determine at what speed and over what period of time and 
on what basis desegregation is to be accomplished in Bibb 
County.

The Supreme Court recognized in Brown, and has recog­
nized in all subsequent decisions, that time is required. 
The plaintiffs themselves do so in the pre-trial order of

—16—
this court. This is not a denial of the Negro’s rights but 
is a recognition that in common sense different conditions 
in different parts of the country must be considered in 
working out the plan under which those rights are realis­
tically obtainable. Certain language of Justice Goldberg 
in a recent case was quoted by Mr. Hollowell suggesting 
that what would have constituted deliberate speed in 1954 
is not necessarily the same thing today. We acknowledge 
that. Actually the climate has somewhat changed, and that 
which would have been hopelessly impossible then is now 
possible. There is nothing in what Justice Goldberg said 
or in what the Supreme Court has said which means that 
the brakes should now be thrown away and all restraints 
removed. It still is for this court to decide what constitutes 
a reasonable and acceptable plan for Bibb County.

Many erroneous claims are made, some in this case, on 
the basis of what the advocate thinks the Supreme Court 
said and meant in the Brown case. Brown was interpreted 
by the late Judge Parker of the 4th Circuit in Briggs v. 
Elliott, 132 F. Sup. 776, as deciding only that a state may 
not deny to any student on the basis of race the right to



314

Defendants’ Written Argument

attend any school that the state maintains, and this inter­
pretation still stands. The state cannot deprive the student 
on that basis of the right to choose.

In the Columbus case decided by Judge Elliott, a co­
judge of this court, there are several pertinent statements 
which we think bear quoting:

— 17—

“In testing the plan submitted we should remind 
ourselves of a fact seemingly often overlooked by those 
who are anxious for rapid social change, this being 
that the chief function and primary concern of the 
Board of Education is not the preservation of the 
status quo in race relations, nor is it the advancement 
of social revolution. The Board’s primary duty is to 
provide good educational facilities and operate them 
in an orderly manner and in an atmosphere free from 
turmoil and tension. While it is this Court’s duty to 
order an end to the segregated system, which we have 
done, we deem it no less proper that we accord to the 
local school authorities superior knowledge with re­
spect to the mechanics of a plan and the timing of its 
effectiveness.

*  #  *  #  #

“Counsel for the Plaintiffs have criticized the plan 
as being an ‘illusion’, suggesting that this freedom to 
register in the school of the pupil’s choice is not bona 
fide and that those responsible for assigning the pupils 
will hide behind a pretense of lack of building capacity, 
absence of proximity and fictitious transportation 
problems as justification for refusing to assign Negro

— 18-

pupils to the school of their choice. In other words, 
we are asked to simply presume that the members of



315

Defendants’ Written Argument

the Board have submitted the plan hypocritically and 
in bad faith. Let us consider this.

“Another contention of counsel for Plaintiffs is that 
there is no guarantee under this plan that there will 
be any actual integration of the races in the first grade 
in the year 1964, counsel pointing out that there is no 
assurance that any Negro child will choose to register 
at what has previously been an all-white school. We 
do not deem it the duty of the Board of Education to 
enforce integration. We do deem it their duty not 
to enforce segregation. By making it possible for 
children of both races to choose the school which they 
prefer to attend and by assigning the pupils to the 
schools without regard to racial consideration the 
Board will have discharged their duty.”

Judge Elliott refused to assume that the Columbus 
Board would not proceed in good faith. Judge Elliott 
found the plan submitted to be reasonable and adequate to 
accomplish the desired results. It is also interesting to 
note that Judge Elliott ruled, and we think correctly, that

—19—
the nominal plaintiffs in the Columbus case, of various 
ages and grades, were not individually entitled to special 
or separate consideration beyond the class which they rep­
resent, and that they were not entitled to any different 
treatment from that accorded to other children who are 
members of the class which they represent.

Twelfth Grade versus First Grade Approach
It is not actually disclosed by the record that the plain­

tiffs are questioning the 12th grade approach as against



316

Defendants’ Written Argument

the first grade apioroach, and it may he outside of the record 
for us to say that there are differences of opinion on that 
question. Plaintiffs would have the plan applied immedi­
ately to all grades in the system. However, there is testi­
mony in the record bearing on the question and we think 
we should deal with it briefly.

Plans of both types have been approved as valid. Under 
either approach there is a transition and a period of time 
involved. Under either plan the test is not what the plan 
does immediately, or by steps, but what it does ultimately. 
If it were necessary to completely eliminate discrimination 
immediately and abruptly neither plan would accomplish 
that purpose.

Who is to say which is better? Under the first grade 
approach a grade a year plan will never touch the students 
presently in the system above the first grade. Under the 
12th grade approach it will at some time touch every stu­
dent presently in the system, commencing in 1964. Under

— 20—

either plan it will touch all students hereafter entering the 
system.

The Board has decided that the 12th grade approach is 
the better of the two, and has stated its reasons. Plaintiffs 
have not really indicated a choice as between the two. 
Accordingly we request that the 12th grade approach be 
accepted by the court as a basic approach to desegregation.

Teachers, Principals and Administrative Personnel
Within the past year or slightly more it has become 

routine to include in school petitions a prayer substantially 
to the effect that in the assignment of teachers, principals 
and administrative personnel the defendant Board be en-



317

Defendants’ Written Argument

joined from making such assignments on the basis of the 
race. That prayer is contained in this case.

Generally the courts have considered it unnecessary to 
rule on that question for the time being, deferring it for 
later consideration. Witness Judge Elliott’s decision in 
the Columbus case, and also in the Albany case, 222 F. 
Sup. 166. A number of such cases are reported in the Fall, 
1963, issue of Race Relations Law Reporter, Yol. 8, No. 3.

There are a number of reasons for this. One is that such 
an order might be hopelessly incapable of enforcement. 
Another is that it would be extremely difficult if not impos­
sible even to frame such an order. Third, the question may 
be more deliberately and properly considered at a later

- 21-

date. As classes are desegregated the question may become 
moot.

Whatever the reason for deferment there are other seri­
ous and vexing questions which have not been passed upon, 
such as whether in a class action brought in behalf of school 
children the civil rights of the classes are really involved. 
Certainly the class does not include teachers or adminis­
trative personnel and their rights cannot be asserted.. For 
one treatment of the question along this line we refer the 
court to the proceedings in Monroe v. Jackson, Tennessee, 
which are reported in Race Relations Law Reporter, Yol. 
8, No. 3, commencing at page 1008. The court said at page 
1017, citing Mapp v. Board of Education of Chattanooga, 
decided by the 6th Circuit on July 8, 1963, that the applica­
tion for desegregation of supporting personnel should be 
stricken completely as not included in the rights to be 
protected, and that the plaintiffs could not assert the rights 
of Negro principals and teachers, but that they could assert 
(contend is a better word) that their own rights include



318

Defendants’ Written Argument

the desegregation of teachers and principals as part of 
their right to an abolition of discrimination in the public 
schools.

Actually plaintiffs in the counter-plan which they have 
filed do not propose that this alleged right be dealt with 
immediately, but merely propose to come back and deal 
with it later. We have no reason to suggest any different 
disposition. The court will undoubtedly retain jurisdiction 
of the case and if the question should come up at some later 
date it is entirely satisfactory to the Board to defer the 
question until that time.

— 22—

Injunction
Whether or not an injunction should be granted can be 

decided only on the basis of rules applicable generally to 
the grant of injunctions. It is not a matter of absolute 
right. Chief among these is the necessity for the injunc­
tion. Injunctions have been granted in appropriate cases 
and have been denied as unnecessary in others. Each case 
must stand on its own facts.

If the Board should be enjoined in general language 
from denying to the plaintiffs all rights guaranteed to 
them by the Constitution the Board would immediately 
be in violation of the injunction, because during the transi­
tion period there is obviously a limited recognition of those 
rights. If the injunction should be couched more narrowly 
in terms of the order of this court there is absolutely no 
reason for this court or for the plaintiffs to doubt that the 
order will be complied with.

Furthermore, should any question arise at any time as 
to the Board’s compliance either the complainants or the 
defendants can return to this court for interpretation and 
direction.



319

Defendants’ Written Argument

The only real purpose of an injunction would be to ex­
pose the defendants to the perils of a contempt citation if 
at any time it should act in a manner not thought by the 
plaintiffs to constitute adequate compliance. When that 
situation arises it will be time enough for this court to 
grant whatever additional protective decree is necessary.

—23—
Conclusion

In conclusion we point to certain distinctions which we 
feel should be clearly made.

Opposing counsel refers repeatedly to “complete” de­
segregation, to a “uni-racial” rather than a “dual” system, 
and to the integration of all school facilities at all levels, 
including staff and teaching personnel. He speaks of these 
things as something to which the plaintiffs are immediately 
entitled, today rather than tomorrow, and as something 
which can be afforded to them immediately, today rather 
than tomorrow.

What we are really dealing with is a program, obviously 
a program in steps, during the course of which over a 
period of time their constitutional rights will be fully recog­
nized and afforded.

Further it seems to us that counsel for the plaintiffs 
misconceives the rights of the plaintiffs and the duty of 
the Board. There is no State duty under the Constitution 
to bring about integration. There is an affirmative duty 
to abolish compulsory segregation. There is no affirmative 
duty on the Board to eliminate all designations of people 
or of schools by reference to race. It is implicit in the fact 
that this case is before the court that the rights of Negroes 
are designated as such. It would be absurd to close our 
eyes to that fact. The rights asserted are claimed in behalf 
of Negroes. The operation of a dual school system may be



320

Defendants’ Written Argument

material in passing on the validity of a plan, but is not
—24—

per se prohibited. What would constitute discrimination 
may be determined in the light of the dual system. The 
Constitution does not require that we forget or disregard 
racial distinctions or identifications, but merely that we do 
not discriminate on that basis.

I  would like very much to invite the court to read the 
proceedings in the Monroe case, supra, starting at page 
1008 of the current Yol. 8, No. 3, of Race Relations Law 
Reporter. Some eight or ten successive orders of the Dis­
trict Court in that case are set forth. We have already 
used some of the language appearing on page 1009 re­
lating to compulsory racial integration. We particularly 
invite attention to the language of Judge Brown’s decision 
at page 1016 and at page 1020. We quote one paragraph 
from page 1020:

“With respect to the contention that the law requires 
more than an abolition of compulsory segregation 
based on race and that it sets up an affirmative duty to 
bring about integration, this Court heretofore had 
occasion to point out in the Obion County, Tennessee, 
school case, Vick v. County Board of Education of 
Obion County, 205 F. Supp. 436, 7 R. Rel. Rep. 380 
(WD Tenn. 1962) that the language of the Supreme 
Court in the leading cases of Brown v. Board of Edu­
cation, 347 U. S. 483, (1954) and 349 U. S. 294 (1955), 
and Cooper v. Aaron, 358 U. S. 1 (1958) does not sup­
port this contention.”

—25—
We call to the attention of the court the fact that what­

ever plan is now approved it is subject to review and pos­
sible modification at a later date if the situation be-



321

Defendants’ Written Argument

comes such that a modification is indicated. We respect­
fully submit that the Board has made a fair and reasonable 
proposal for the commencement of a plan of desegregation 
which in all respects complies with the deliberate speed 
concept which has been announced by the Supreme Court, 
and we urge the court to approve the Board’s plan as sub­
mitted, including the implementing forms and documents 
filed in connection therewith.

Finally, and in closing, we comment on the fact that 
plaintiffs have offered no evidence on the trial of this case. 
All of the documents and testimony in the record were 
placed there by the Board. Defendants’ witnesses have 
been cross examined, but their testimony has not been dis­
credited. Certainly it is credible. It is not contradicted.

We realize that the burden is on the Board to support 
the plan which has been proposed. We feel that we have 
done so.

Respectfully submitted,

C. Baxter J oxes 
C. Baxter Jones 
1007 Persons Building 
Macon, G-eorgia 
Attorney for the Board

CBJ :R



322

Defendants’ Exhibit D-l 

P E T I T I O N

To Bibb County School Board of (District No. or County, 
State)

and

Superintendent of Schools of Bibb County

We, the undersigned, are the parents of children of school 
age entitled to attend and attending the public elementary 
and secondary high schools under your jurisdiction. Pur­
suant to state law racially segregated public schools are 
now being maintained by you for children of Negro parent­
age. As you undoubtedly know, the United States Supreme 
Court on May 17, 1954, ruled that the maintenance of ra­
cially segregated public schools is a violation of the Con­
stitution of the United States and that “. . . in the field of 
public education the doctrine of ‘separate but equal’ has no 
place. Separate educational facilities are inherently un­
equal.”

We, therefore, call upon you to take immediate steps to 
reorganize the public schools under your jurisdiction in 
accordance with the constitutional principles enunciated by 
the Supreme Court on May 17. As we understand those 
principles, children of public school age attending and 
entitled to attend public schools cannot be denied admission 
to any school or be required to attend any school solely 
because of race and color.

We request a hearing before the Board for the purpose of 
discussing this petition. We further wish to point out our 
availability as parents and citizens of this community to be



323

Defendants’ Exhibit D-l

of whatever assistance we can to you in devising and im­
plementing a program of desegregation in accordance with 
the Supreme Court’s decision.

We are further authorized to advise you that Macon 
Branch of the NAACP at a membership meeting on 11 
November, 1954, voted to offer its services to the Board to 
aid you in the implementation of a plan of desegregation, 
and we request that Dr. J. S. Williams, President of the 
Branch, be notified of the date of the meeting on this peti­
tion and be invited to be present.

[Signature omitted]



324

Defendants’ Exhibit D-2

P E T I T I O N

TO: School Board of Bibb County 
(District No. or County)

and
Superintendent of Schools

We, the undersigned, are the parents of children of school 
age entitled to attend and attending the public elementary 
and secondary high schools under your jurisdiction. As 
you undoubtedly know, the United States Supreme Court 
on May 17, 1954, ruled that the maintenance of racially seg­
regated public schools is a violation of the Constitution of 
the United States and on May 31, 1955 reaffirmed that prin­
ciple and requires “good faith compliance at the earliest 
practicable date” with the federal courts authorized to de­
termine whether local officials are proceeding in good faith.

We, therefore, call upon you to take immediate steps to 
reorganize the public schools under your jurisdiction on a 
nondiscriminatory basis. As we understand it, you have 
the responsibility to reorganize the school system under 
your control so that the children of public school age attend­
ing and entitled to attend public school cannot be denied 
admission to any school or be required to attend any school 
solely because of race and color.

The May 31st decision of the Supreme Court, to us, mean 
that the time for delay, evasion or procrastination is past. 
Whatever the difficulties in according our children their 
constitutional rights, it is clear that the school board must 
meet and seek a solution to that question in accordance with



325

Defendants’ Exhibit D-2

the law of the land. As we interpret the decision, you are 
duty bound to take immediate concrete steps leading to 
early elimination of segregation in the public schools. 
Please rest assured of our willingness to serve in any way 
we can to aid you in dealing with this question.

Please sign:

[Signatures omitted]



326

Defendants’ Exhibit D-3

PRELIMINARY REPORT OF SPECIAL COMMITTEE

There has been filed with this Board two petitions pro­
posing integration of the races in our schools. One of these 
petitions was filed some months prior to the implementing 
decision of the Supreme Court of the United States in May 
1955, and was obviously premature. The second petition, 
undoubtedly filed in recognition of the prematurity of the 
first, was filed with the Board on August 25, 1955, and we 
take as superseding the first petition. On September 6,1955 
(prior to any meeting of the Board after receipt of the sec­
ond petition) a letter reciting that it was written in behalf 
of the petitioning parents was received by the Board. It 
requested an answer from this Board (in the nature of a 
commitment) as to this Board’s concern with the matters 
contained in the letter and the petition.

That court decision specifically states that as to the 
“varied local school problems, school authorities have the 
primary responsibility for elucidating, assessing and solv­
ing these problems.” It further provides that consideration 
shall be given to “problems related to administration, aris­
ing from the physical condition of the school plant, the 
school transportation system, personnel * # * and revision 
of local laws and regulations which may be necessary.”

Of course, for some months (and prior to the filing of 
any petition) the members of this Board have concerned 
themselves over the situation referred to, and at the present 
time this committee is charged with the specific task of in­
vestigation and report; but in our considered judgment any 
commitment by this Board at this time, or at any time before 
completion of such study of the overall situation as this 
Board may find necessary, would be inappropriate, unwise



327

Defendants’ Exhibit D-3

and entirely out of harmony with the intent of the Supreme 
Court decision.

This being the first meeting of the Board since the ap­
pointment of this committee, we wish to report at this time 
that it is the opinion of the committee that to properly fulfill 
the assignment given it by the Board and to cover all of the 
complexities and ramifications involved will require an 
amount of time, effort and study, the extent of which we 
cannot presently appraise.

Before this committee proceeds further toward the per­
formance of the task assigned, we felt it proper to submit 
this preliminary report.

Respectfully submitted,

McK ibben Lane 
W allace Miller, J r.

Charles C. H ertwig 
George P. Rankin, Jr.
J . D. Crump, Ex-officio
Mallory C. Atkinson,

Chairman Committee



328

Defendants’ Exhibit D-4

MACON COUNCIL ON HUMAN RELATIONS

391 Monroe Street Macon, Georgia
February 23,1961

Dr. H. G. W eaver, President
Bibb County Board of Public Education and Orphanage 
700 Spring Street 
Macon, Georgia

Dear Dr. Weaver :
At its regular meeting on February 20, 1961, the Macon 

Council on Human Relations unanimously adopted the en­
closed resolution.

Since the Macon Council is an interracial organization 
and has traditionally interpreted its role and function as 
that of promoting good human relations, we feel that we 
are strategically oriented to help preserve order and good 
will in the period of transition which most certainly lies 
ahead of us. We would, therefore, be pleased to know of 
any way in which we could be of assistance to you or any 
other governmental official in the implementation of the 
transition called for by this resolution.

Thanking you very much for your sympathetic considera­
tion of this matter, we are

Respectfully yours,
/ s /  E. B. P ascal

E. B. Pascal, Co-chairman
/s /  J oseph M. H endricks 
J oseph M. H endricks, Co-chairman 
Macon Council on Human Relations



329

Defendants’ Exhibit D-4 

STATEMENT

The new realism in Georgia’s official approach to the con­
stitutional prohibition against racial discrimination by action 
of state and local governments as enunciated by the Su­
preme Court calls for a re-examination of the policies, prac­
tices and plans for the future of each community within our 
state. The Macon Council on Human Relations respectfully 
suggests to the authorities of the City of Macon and of Bibb 
County, including the Bibb County Board of Public Educa­
tion and Orphanage, that such a re-examination here not 
only is logically called for as a result of changed state laws 
and abandonment of a state legal stance of unflinching re­
sistance, but that it is imperative to continued well being 
and to the preservation of the traditional racial harmony of 
our community.

We fully recognize that our state officials came reluctantly 
to the present stance. However, regardless of one’s stand, 
it appears most unlikely that any early reversal of the court 
interpretation of the law is in prospect, and the new realism 
has compelled our political leadership to recognize that 
compliance with federal court orders is unavoidable, since 
armed resistance is the only alternative and is obviously 
futile and unthinkable. As one Georgia editor has said, 
“Absurdities, pro or con, in the racial field are becoming 
casualties of the new era in Georgia.”

Our local officials generally have supported the state po­
sition before the new realism, though they have been far 
less vocal than most politicians on the state level and in 
many other localities in Georgia. Some of our officials have 
worked to promote a continuance of racial harmony in the 
community and those who have made no real contribution 
in this respect at least have done nothing to stir ill feeling, 
with the amazing exception of a pronouncement last year 
from a high judicial quarter.



330

Defendants’ Exhibit D-4

To this date there have been no incidents in Macon and 
Bibb County of the sort which have disturbed other South­
ern communities, such as bus boycotts, sit-in demonstra­
tions, demands for admission to golf courses, libraries, 
swimming pools and other governrnentally-operated serv­
ices. Some of Macon’s Negro citizens and some of their 
more dedicated white friends react with shame to this fact, 
believing they should have acted “to secure these rights,” 
as a report in the 1940’s put it. But the temper of our com­
munity so far has preserved the status quo. That this can­
not continue unchallenged now is apparent. With the full 
backing of federal authority, some change is bound to come.

The question in Macon, as in all of Georgia, no longer is 
whether we can continue as in the past. It is whether change 
will come under community planning and control, or whether 
it shall come under the explicit direction of a federal court.

The Macon Council on Human Belations is successor to 
an organization which has existed in this community for 
many years—long before the present crises and contro­
versies arose—and it has been essentially conservative in 
the best sense of that often-abused term. During the past 
years when defiance and resistance-at-all-costs were the offi­
cial policy of Georgia, we made no public effort to reverse 
a trend which was quite apparently beyond our power to 
influence. We spoke out only occasionally and then only in 
specific instances of injustice which we felt demanded a 
voice against the tide.

Now that realism is the order of the day in Georgia and 
absurdities are casualties of the new era, we believe that 
the time has come to make a truly conservative voice heard 
in Macon and Bibb County.

That our Negro citizens soon will make new demands for 
compliance locally with rules of law which have been laid



331

Defendants’ Exhibit D-4

down time and again by the federal courts, both the Supreme 
Court and our own Middle District of Georgia and Fifth 
Circuit Court of Appeals, is beyond question. It equally is 
beyond question that under these legal interpretations 
many of our local practices are highly vulnerable. Our 
community can continue to operate and control its essential 
and desirable services to all its people—if our officials will 
begin now to plan for an orderly transition. Any other 
course can only result in irreparable harm to us all, and it 
will matter not at all on whom the blame is placed.

Our local school problem is a case in point. It is well 
known that some of our legal worthies have argued that the 
1872 charter of our board of education would be voided by 
integration or that the Alexander Schools would be for­
feited. These arguments, if pursued, could close our local 
schools even though state law has been changed and in the 
face of strong local sentiment for continuing public educa­
tion. The closure would be temporary, but of dire conse­
quence. If absurdities really are casualties these days, this 
folly will be avoided.

We call upon our mayor and council, the board of county 
commissioners, all county officials, the board of education, 
our state and local judges, and our state legislators to join 
immediately in planning to meet the new era with sense and 
realism on the local scene.



332

D e fe n d a n ts ’ E x h ib it  D-5

DR. H. G. WEAVER 
700 Spring Street 

Macon, Ga.

February 27,1961

E. B. Paschal and Joseph M. Hendricks, Co-Chairmen 
Macon Council On Human Relations 
391 Monroe Street 
Macon, Georgia

Dear Sirs:
This is to acknowledge receipt of your letter and state­

ment of February 23, 1961. This will be referred to the 
proper committee for study and if we need your help we 
will call on you.

Tours truly,

HGW/w

/ s /  H. G. W eaver
H. G. Weaver, M. D.



D e fe n d a n ts ’ E x h ib it D-6

845 Forsyth Street 
Macon, Georgia
March 8, 1963

Dr. H. G. Weaver, President
Board of Education and Orphanage of Bibb County
Macon, Georgia

Dear S ir:
We the undersigned, hereby request the privilege of appear­
ing at the next duly constituted meeting of the Board of
Public Education, for the purpose of airing certain griev­
ances pertaining to public education in Macon and Bibb 
County.
We firmly believe that the alleviation of the conditions which 
gives rise to our grievances is in the best interest of our 
community, and therefore demand your attention.
May we hear from you at your earliest convenience, regard­
ing our appearance at the next Board Meeting.

Sincerely yours,

/« /  Rev. E. S. E vans 
/ s /  W alter E. Davis 
/ s /  Lewis PI. W ynne 
/ s /  J . L. K ey 
/ s /  W illiam P. Randall 
/ s /  B. W. Chambers 
/ s /  T. M. J ackson



334

Defendants’ Exhibit D-6

March. 12,1963

R ev. E. S. E vans 
Mr. W alter E. Davis 
Mr. L ewis H. W ynne 
Mr. J . L. K ey 
Mr. W illiam P. R andall 
Mr. B. W. Chambers 
Mr. T. M. J ackson 
845 Forsyth Street 
Macon, Georgia

Dear Sirs:
This will acknowledge receipt of your letter of March 8, 

1963.
Your request comes rather late for an appearance at our 

meeting on Thursday of this week. Our agenda is already 
set for this meeting, hut if you desire to appear at this time 
we will rearrange our business and allow you five minutes 
if you can arrive promptly at 4:30 p.m.

However, it would be more in keeping with the procedure 
of our Board if you would present your matters in writing. 
This would then be assigned to the appropriate committee 
for recommendation to the Board. Or if you will present 
your views in writing the committee to whom it will be re­
ferred could undoubtedly give you more time for presenta­
tion of your matters prior to our regular April meeting.



335

Defendants’ Exhibit D-6

If the time we can allow you at our Thursday meeting is 
not sufficient for you to present what you have, we could 
arrange more time for you at our April meeting.

Yours truly,

Ii. G. "Weaver, President 
Bibb County Board of Education

HGW/JGr/s

Blind copies: Mr. Miller
Mr. Baxter Jones



336

D e fe n d an ts ’ E x h ib it  D-7

Macon, Georgia 
March 14, 1963

Mr. Chairman and Gentlemen of the Board:
We would like to present a petition from adult citizens of 
Bibb County, relative to the present status of the school 
system.
We had hoped that after presenting this petition we might 
be able to discuss with you some of the reactions in the 
Negro community on this subject; and to submit ourselves 
to questioning from you gentlemen. But with a restriction 
of five minutes to do these things is impossible. We would 
wish that we could convince you gentlemen that we are 
desperately anxious to have this situation resolved by the 
board and local citizens, rather than by the Federal Courts.
We appreciate your suggestion that we reduce this matter 
to writing for referal to a proper committee. But we would 
respectfully remind you gentlemen that we did this very 
same thing nine years ago. The matter was refered to a 
committee. Said committee seems to have been the grave­
yard for the petition, as we have heard nothing from this 
committee as of this very moment.
You can appreciate the fact that time is of the essence in 
this instance, and to delay our appearance until your next 
meeting might have seriously restricted us in our efforts 
to have this matter settled by the next September term of 
school.



337

Defendants’ Exhibit D-7 

PETITION
We the undersign, being adult citizens of the United States 
residing in or around the city of Macon and Bibb County 
Georgia, do hereby petition the members of the Bibb County 
Board of Education and the Superintendent of Schools of 
such Board to take notice of the following:

1. That on May 17, 1954, the United States Supreme 
Court in the decision titled Brown v. Board of Education, 
held that racial segregation in the public schools is a viola­
tion of rights guaranteed to Negro citizens by the Four­
teenth Amendment of the United States Constitution.

2. Since 1954, a period of almost nine (9) years, the 
Board of Education of Bibb County has continued to op­
erate on a completely segregated basis. The public schools 
in Macon and Bibb County, with Negro children and teach­
ing personnel being assigned to schools designated solely 
for Negroes, and white children and teaching personnel 
being assigned to schools designated solely for whites.

3. The operation of the public schools by the Bibb County 
Board of Education on a racially segregated basis consti­
tutes a continuing violation of the constitutional rights of 
all Negro children forced to attend such racially segregated 
schools.
Therefore, the undersigned persons petition the Bibb 
County Board of Education to take immediate action to 
comply with the decision of the United States Supreme 
Court and to desegregate the public schools of Macon and 
Bibb County, Georgia, and to inform the undersigned peti­
tioners what plans have been formulated to achieve such 
desegregation.
We would therefore request that you place this matter on 
the agenda of your next Board meeting and consider same 
as soon as possible.



338

D e fe n d a n ts ’ E x h ib it D-8

Law Offices
JONES, SPARKS, BENTON & CORK 

P ersons B uilding 

Macon, Georgia

April 13,1963

Mr. Wallace Miller, Jr.
Chairman, Special Committee 
Bibb County Board of Education 
Macon, Georgia

Dear Wallace:
My opinion as attorney for the Board of Education has 

been requested with reference to the matters indicated 
below.

The Bibb County Board was chartered by the Georgia 
Legislature in 1872, to direct and control the education in 
Bibb County of white and colored children between the ages 
of six and eighteen.

As a body corporate the Board is a creature of the State. 
It has no rights of property and no powers except those 
granted to it by the State. It exists as a corporation within 
the control of the State and subject to such conditions and 
restrictions as are imposed by the State. To clarify the 
point, we are not concerned with what the State can or can­
not do in the area of public education but solely with the 
question what the State has authorized the Bibb County 
Board to do, and within what limitations, restrictions and 
conditions.



339

Defendants’ Exhibit D-8

Section 5 of the Board’s charter reads as follows:
“See. 5. That the said Board shall establish distinct 

and separate schools and orphans’ homes for white and 
colored children, and shall not, in any event, place chil­
dren of different colors in the same school or orphans’ 
home.”

The immediate question is whether this limitation in the 
Board’s charter is valid or invalid. If we assume it to be 
invalid, or that it will be so held, the question remains 
whether the Board under its charter has the power from 
the State to operate the Bibb County school system con­
trary to this provision in its charter. Bestated in blunt 
language, the question is whether the power given to the 
Board to operate segregated schools is a power to operate 
non-segregated schools if segregated schools cannot be op­
erated because of the invalidity of Section 5.

The following rules may be stated as rules of general 
application. If desired they can be amply supported.

(1) Where a statute (in this case the Board’s charter) 
is partly unconstitutional it will nevertheless be upheld as 
to that part which is constitutional if the constitutional 
part standing alone is sufficient to accomplish the legislative 
purpose and does not contravene that purpose.

(2) If the unconstitutional part is indispensable to the 
legislative purpose the whole statute must fall.

(3) If a statute is in part valid and in part invalid, and 
the invalid part is so connected with the general legislative 
intent that without it the legislative intent cannot be accom­
plished, or can be accomplished only in a manner which 
contravenes the legislative intent, the whole statute must 
fall.



340

Defendants’ Exhibit D-8

These general rules could be restated with varying em­
phasis, but the question which they pose is rather obvious. 
If a main purpose of the 1872 Act was to provide separate 
schools for white and colored children that purpose is de­
feated if white and colored children are educated in the 
same schools. If “the” main purpose was to provide for 
the education of children, the separation of the races being 
incidental or secondary to the main purpose, then the limita­
tions of Section 5 are incidental and secondary and the 
invalidity of that section does not void the Act as a whole.

Was the purpose to provide an education or was it an 
essential part of the purpose that education be provided 
in separate schools for white and colored children? The 
meaning of Section 5 is clear but whether it is essential to 
the Act as a whole is debatable on either side.

If Section 5 is so connected with the legislative purpose 
that no power is granted to the Board except under the 
conditions of that section then the entire charter stands or 
falls with that section. The result is the same whether the 
Board voluntarily violates Section 5 or does so under court 
order, viz., the possible complete loss of the Board’s cor­
porate powers and the forfeiture of its charter.

Since the Board’s powers are derived from the State the 
interpretation of its charter powers is essentially a state 
and local question. Ordinarily a federal court will permit 
such questions to be decided by the state courts if that is 
practical, and will be bound by the state court rulings, but 
where the construction of a state statute is involved in a 
case properly pending in a federal court there is no doubt 
that the federal court may itself construe the statute and 
its construction will bind the parties to that particular ease. 
It probably would not protect the parties as against others 
who are not parties.



341

Defendants’ Exhibit D-8

The gravity of the question cannot be overstated. If the 
Board acts in violation of Section 5, either voluntarily or 
under federal court order, by placing white and colored 
children in the same school it might thereby forfeit its 
charter, completely destroy itself, and leave no other local 
state agency to act in its place, thus disrupting the whole 
school system in Bibb County. This could follow whether 
the Board acts voluntarily or under the decree of a federal 
court. That is, regardless of the construction placed on 
the charter by a federal court the state would not thereby 
be deprived of its right to forfeit or revoke the charter.

In addition to the effect on the Board’s charter, possibly 
voiding its powers to receive and expend school funds, and 
affecting its titles, the individual members of the Board, 
and the Board’s agents and employees, would find them­
selves acting at their individual perils.

There is no particular point in my stating how I would 
decide this question if I had to make a decision. I might 
study it further and come up with some sort of answer. 
The point is that no authoritative answer can be given. It 
can be argued with some persuasion that Section 5 is so 
much a part of the legislative purpose that the Board has 
no powers which can be exercised if the conditions of that 
section are stricken out. On the other hand it can be argued 
with some persuasion that Section 5 is so far secondary to 
the main purpose that it may be stricken without otherwise 
affecting the powers of the Board.

It may be that irrespective of the answer itself the Board 
is bound to observe its own charter conditions. As between 
the State and the Board the conditions of the charter are 
binding and the Board cannot challenge or deny the validity 
of its own charter. To voluntarily mix the races in the



342

Defendants’ Exhibit D-8

same schools would constitute a denial by the Board of the 
validity of Section 5 of its charter, or on any other ground 
would be a deliberate violation of that section.

I am sorry that I cannot supply more definite answers, 
but I believe you are aware that some measure of doubt 
and uncertainty will remain until the answers are supplied 
by an authoritative court ruling.

Yours truly,

/s /  C. Baxter J ones 

C. Baxter Jones

CBJ:B



343

D e fe n d a n ts ’ E x h ib it D-9

REPORT OF
RULES AND REGULATIONS COMMITTEE 

AND SPECIAL COMMITTEE

Tlie President of the Board referred to these two com­
mittees, for recommendation to the full Board, the petition 
of certain citizens of Bibb County, Georgia, pertaining 
to the Board’s operation of the public schools of Bibb 
County on a basis of separate schools for white and 
colored children.

The Board has only such authority as is contained in its 
charter.

Section 5 of its charter provides:
“That the said Board shall establish distinct and 

separate schools and orphans’ homes for white and 
colored children, and shall not, in any event, place 
children of different colors in the same school or 
orphans’ home.”

The two committees were and are gravely concerned 
as to whether, within the charter powers granted by the 
State of Georgia, the Board, as distinguished from the 
State, can legally operate schools other than separate 
schools for white and colored children.

Legal counsel of the Board was consulted on this ques­
tion, and such counsel advises that no definite resolution 
of the question can be had without an adjudiction by a 
court of competent jurisdiction, with proper parties be­
fore it, and such counsel recommends the Board initiate 
such action.

The two committees concur in the recommendation of 
the Board’s counsel, and hereby recommend to the full 
Board the adoption of the following resolution:



344

Defendants’ Exhibit D-9

“Be it resolved by the Board of Public Education and 
Orphanage for Bibb County that its counsel forthwith 
institute in the name of the Board, against such parties 
as such counsel deems necessary, a court action in the 
Superior Court of Bibb County, Georgia, to obtain an 
adjudication from such court as to whether the Board can 
legally operate schools other than separate schools for 
white and colored pupils, as provided in its charter.”
So recommended to the full Board, this April 24, 1963.

R ules and Regulations Committee

B y /&/ W m. A. F ickling 
Chairman

Special Committee

B y / s/  W allace Millek, J r. 
Chairman



345

D e fe n d a n ts ’ E x h ib it D -10

State of Georgia 
County of B ibb

To the Superior Court of Said County:
The petition of the Board of Public Education and 

Orphanage for Bibb County, a corporation, respectfully 
shows: 1.

It was incorporated by an Act of the General Assembly 
of Georgia approved August 23, 1872, entitled:

“An Act to establish a permanent Board of Educa­
tion and Orphanage for the County of Bibb, and to 
incorporate the same; to define its duties and powers, 
and for other purposes.”

Its principal and only office is located in Bibb County, 
Georgia.

2.

This petition is brought by proper action and resolution 
of the petitioner, invoking the power of the Court to de­
clare rights and other legal relations of your petitioner. 
Tour petitioner shows to the Court that the ends of justice 
require that such declaration should be made.

The petition is brought also in an invocation of the 
visitorial power over corporations which is vested in the 
superior court of the county where such corporation is 
located.

This visitorial power vested in the superior courts of 
the counties where corporations are located empowers them 
to decide controversies pertaining to the proper exercise 
of the charter powers of such corporations.



346

Defendants’ Exhibit D-10

3.
Certain Negro citizens residing in Bibb County, Georgia, 

have filed their petitions with your petitioner in which 
they assert that the public schools directed and controlled 
by your petitioner are operated on a segregated basis, 
that is, with Negro children being assigned to schools 
designated for Negroes, and white children being assigned 
to schools designated for whites.

These Negro citizens have requested your petitioner to 
take action toward desegregating the public schools of 
Bibb County, Georgia.

4.
Among the Negro citizens who have so petitioned your 

petitioner are E. S. Evans, Walter E. Davis, Lewis H. 
Wynne, J. L. Key, Wm. P. Randall and B. W. Chambers, 
all of whom are residents of Bibb County, Georgia. They 
are named as defendants herein as representatives of the 
class of persons so petitioning.

5.
Since its incorporation in 1872, your petitioner has stead­

fastly and conscientiously sought to perform the duty with 
which it was charged by Sections 1 and 2 of the Act afore­
said, and specifically to direct and control the education 
of white and colored children in Bibb County between the 
ages of six and eighteen years; and to provide a system 
of education for white and colored children of said ages 
in said county.

6.

In the performance of its duties, and in its direction and 
control of the education of white and colored children in



347

Defendants’ Exhibit D-10

said county, your petitioner lias for over ninety years 
observed the explicit provisions of Section 5 of its charter 
as contained in the aforesaid Act, which are:

“That the said board shall establish distinct and 
separate schools and orphan homes for white and 
colored children, and shall not, in any event, place 
children of different colors in the same school or 
orphan home.”

7.
Petitioner has been advised by its counsel that it is doubt­

ful whether it has the corporate power under its charter 
to grant the petitions aforesaid, and thus operate a system 
of public schools other than as prescribed in Section 5 of 
its charter, to-wit, a system of distinct and separate schools 
for white and colored children, and petitioner is in doubt 
whether it does or does not have this power.

8.

More succinctly stated, petitioner is in doubt whether its 
grant of corporate powers from the State of Georgia to 
operate a system of public schools for white and colored 
children in Bibb County is so far conditioned upon com­
pliance with the limitations and restrictions of Section 5 
of its charter that it may not exercise its powers, and has 
no powers which it may lawfully exercise, in any other 
manner, that is in a manner which violates the limitations 
of said Section; or whether if separate schools cannot be 
established as required by said Section powers are granted 
under which public schools may be established and oper­
ated by petitioner under its charter in disregard of said 
Section.



348

Defendants’ Exhibit D-10

9.
In the absence of an authoritative construction of its 

charter by this Court, in specific relation to the foregoing 
questions as to which petitioner is in doubt, petitioner can 
act in the premises only at its peril; in that its charter might 
be subject to forfeiture if it grants the petitions aforesaid, 
and in that all of its acts in such event might be invalid and 
ultra vires and the entire operation of a system of public 
schools in Bibb County might be threatened. The individ­
uals who comprise petitioner, and who exercise petitioner’s 
public and corporate functions and powers, can act only at 
their peril as such members, and are in danger of incurring 
individual liability if they act beyond petitioner’s powers.

10.

Section 3 of petitioner’s charter aforesaid provides in 
part:

. . and said board shall further have the power to 
assess such tax upon the taxable property of said 
County of Bibb as they may think necessary to support 
the system of schools and orphan homes which they may 
establish, which tax when approved by the grand jury 
at the spring term of the Superior Court of Bibb 
County, shall be levied by the Ordinary of said County 
and collected like other taxes of said county.”

By an amendment to petitioner’s charter approved Feb­
ruary 19, 1876, the words “grand jury at the spring term 
of the Superior Court of Bibb County” were stricken and 
the words “Board of County Commissioners of Bibb 
County” were substituted, and the words “and the said 
Board is hereby required to approve or disapprove of said



349

Defendants’ Exhibit D-10

tax before the first Monday in Jane of each year” were 
added at the end of said Section. Under said Section funds 
received by petitioner from the levy of taxes as therein pro­
vided, and from other sources mentioned in said Section, 
are used by petitioner for the operation of the public schools 
of Bibb County, and because of the uncertainty as to peti­
tioner’s powers the danger also exists that petitioner will 
not be able to lawfully levy taxes for the support of the 
system of schools or receive and expend school funds for 
such purpose.

11.

If petitioner, by unanimous vote or by majority vote, 
should grant the aforesaid petitions, and place children of 
different colors in the same school or schools contrary to 
the provisions of Section 5 of its charter, petitioner faces 
the probability, if not the certainty, of judicial proceedings 
against petitioner and the individual members of petitioner, 
and against petitioner’s agents and employees, challenging 
the right of petitioner so to do and challenging the acts of 
its members, agents and employees in the attempted per­
formance of their duties.

12.

If petitioner, by unanimous vote or by majority vote, 
should refuse to grant the petitions aforesaid, and should 
attempt to maintain separate schools for white and colored 
children as required by its charter, petitioner faces the 
probability, if not the certainty, of judicial proceedings 
against petitioner challenging petitioner’s right and au­
thority to maintain and operate a system of public schools 
in and for Bibb County in the manner required by peti­
tioner’s charter.



350

Defendants’ Exhibit D-10

13.
Certain Negro citizens, some of whose names are set out 

in paragraph 4 hereof, assert that your petitioner has power 
to establish and maintain a system of public schools in 
which white and colored children may attend the same 
school.

14.
While the State of Georgia has not given its consent to 

be sued in this proceeding, and is not named as a party, 
the State of Georgia has an interest in the subject matter 
of this proceeding, and may see fit to intervene, and has the 
right to intervene, and for that reason notice of the filing 
of this suit should be given to the Honorable Eugene Cook, 
Attorney General of the State of Georgia, in order that the 
interests of the State may be duly protected.

15.
Petitioner seeks the direction of and a declaration by this 

Honorable Court under its power to settle and afford relief 
from uncertainty and insecurity with respect to rights, 
status and other legal relations.

W herefore, petitioner prays the Court:
(a) To issue such process and orders as it may deem 

necessary and proper, requiring the defendants named in 
paragraph four hereof, and such other residents of Bibb 
County as the Court deems proper, calling on them to be 
and appear in this Court in accordance with law to answer 
this petition, and show cause why the relief prayed herein 
should not be granted;

(b) To declare and adjudge whether or not your peti­
tioner has legal authority to establish or operate public



351

Defendants’ Exhibit D-10

schools in Bibb County other than distinct and separate 
schools for white and colored children;

(c) To declare and adjudge whether or not your peti­
tioner has by reason of any event which has transpired 
since August 23, 1872, legal authority to place children of 
different colors in the same school;

(d) For such other and further relief as may seem meet 
and proper.

P.O. Address:
1007 Persons Building, Macon, Gfa.

/ s /  Charles J. Block 
P.O. Address:
710 Walnut Street, Macon, Ga. 
Attorneys for Petitioner

Georgia, B ibb County

Dr. H. G. Weaver, being duly sworn, deposes and says 
that he is President of Bibb County Board of Education 
and Orphanage, petitioner herein, authorized to make this 
affidavit, and that the averments of the foregoing petition 
are true.

This day of April, 1963.

Sworn to and subscribed 
before me, this day 
of April, 1963.

Notary Public, State of Georgia, 
Residing in Bibb County



352

Defendants’ Exhibit D-10 

Order of the Court

The foregoing petition has been read, considered and 
sanctioned and it is ordered filed.

Let process issue, and let a copy of the petition, process 
and this order be served upon those named as defendants 
in paragraph 4 of the petition, and let them, and any other 
citizen of Bibb County who may have an interest in the 
subject matter of the petition, show cause before me at the
Courthouse, Macon, Georgia, May----- , 1963, at 10:00 A.M.,
by motion, answer, intervention, or other proper legal plea, 
why the relief prayed in the petition should not be granted, 
and why this Court should not declare and adjudge whether 
or not the petitioner has legal authority to establish or 
operate public schools in Bibb County other than distinct 
and separate schools for white and colored children, and 
why this court should not declare and adjudge whether the 
petitioner has by reason of any event which has transpired 
since August 23, 1872, legal authority to place children of 
different colors in the same school.

Let the Honorable Eugene Cook, Attorney General of 
the State of Georgia, be served with notice in the manner 
prescribed by law in order that he in his official capacity 
may represent the interests of the State as such interests 
may appear.

And let those who appear by motion, answer, interven­
tion or other proper legal plea state therein their conten­
tions as to what, if any, declaration shall be made herein.

No intervention shall be filed herein by any person not 
named in paragraph 4 of the petition, unless the person 
seeking to intervene has by written motion signed by him 
or his attorney at law, prayed and been granted leave by 
the court to intervene herein. Such motion shall be accom-



353

Defendants' Exhibit D-10

panied by the proposed intervention. Leave is granted to 
the Attorney General without the necessity of such motion 
to intervene in behalf of the State of Georgia or in behalf 
of any other interest he may lawfully represent in his offi­
cial capacity.

Judge, Superior Courts, Macon Circuit



354

D e fe n d an ts ’ E x h ib it  D - l l

I n the Superior Court op B ibb County, Georgia 

No. 25843
B ibb Superior Court 

J une T erm, 1963

Board op P ublic E ducation and Orphanage 
for B ibb County,

Plaintiff,
----y,----

E. S. E vans, et al.,
Defendants.

Declaratory J udgment

The plaintiff in the above captioned case has brought its 
petition seeking relief under the Declaratory Judgment 
Act, as amended, Code Section 110-1101, et seq. In its peti­
tion plaintiff alleges facts to show that a justiciable con­
troversy exists between it and the class defendants named 
in the action, which this Court has jurisdiction to deter­
mine.

Plaintiff alleges that certain Negro citizens of the County 
have filed petitions with it in which they assert that the 
public schools directed and controlled by plaintiff are op­
erated on a segregated basis, that is, with Negro children 
assigned to schools designated for Negroes, and white chil­
dren being assigned to schools designated for whites. Anri 
plaintiff further alleges that those Negro citizens, among 
whom are those named as defendants, as representatives of 
the class of persons so petitioning, have requested that



355

Defendants’ Exhibit D-ll

plaintiff take action toward desegregating the public 
schools of Bibb County, Georgia.

Plaintiff shows that it is acting under an Act of the Gen­
eral Assembly of Georgia, approved August 23, 1872 
(Georgia Laws, 1872, P. 388), by which it was incorporated 
to direct and control the education of white and colored 
children of Bibb County between the ages of six and eight­
een years; and to provide a system of education for white 
and colored children in said County within those ages.

Section 5 of the charter under which the plaintiff is oper­
ating is in the following language:

“That the said board shall establish distinct and 
separate schools and orphan homes for white and 
colored children, and shall not, in any event, place 
children of different colors in the same school or 
orphan home.”

Plaintiff avers that it is in doubt as to whether it can op­
erate a system of public schools legally for white and col­
ored children in Bibb County other than in compliance with 
the limitations and restrictions of Section 5 of its charter; 
that it fears that in the absence of an authoritative con­
struction of its charter by this Court in relation to the 
questions as to which it has doubt its charter might be 
subject to forfeiture if it grants the petitions for desegre­
gation filed with it. Plaintiff also shows that if it violates 
its charter provisions as contained in Section 5 by grant­
ing said petitions it might imperil the entire operation of 
the public school system of Bibb County, and possibly the 
individuals comprising the Board would incur personal lia­
bility.

Plaintiff further shows that because of the uncertainty 
of its powers with respect to the operation of mixed schools,



356

Defendants’ Exhibit D-ll

danger exists that it will not be able lawfully to levy taxes 
for the support of the system of schools and to expend 
funds for such purposes.

And further it is shown by plaintiff that it faces the 
probability, if not the certainty, of judicial proceedings 
against it if it grants or refuses the petitions filed against 
it, unless it first gets a construction of its charter from 
this Court.

Among other things for which the plaintiff prays, it 
prays the Court:

“ (b) To declare and adjudge whether or not your 
petitioner has legal authority to establish or operate 
public schools in Bibb County other than distinct and 
separate schools for white and colored children;

“ (c) To declare and adjudge whether or not your 
petitioner has by reason of any event which has trans­
pired since August 23, 1872, legal authority to place 
children of different colors in the same school.”

The defendants, in their answer, do not deny that this 
Court has jurisdiction to grant the relief for which the 
plaintiff prays; they admit in their answer that they have 
filed the petitions for desegregating the Bibb County 
schools as alleged by the plaintiff. The defendants deny 
certain of the paragraphs of the petition and they pray 
judgment against the petitioners; and they conclude their 
brief filed with this Court by stating that this Court should 
declare Section 5 of the Charter of the Board of Public 
Education and Orphanage for Bibb County unconstitu­
tional, and further declare that the Board is authorized to 
operate its public schools on a desegregated basis.

The Court declares that a justiciable controversy exists 
between the plaintiff and the class defendants named in the



357

Defendants’ Exhibit D-ll

petition, and that the Court has jurisdiction to grant the 
relief sought by the plaintiff.

The Court further declares that all necessary and proper 
parties are before the Court. The State of Georgia has 
not given its consent to be sued in this proceeding, but 
legal notice was, by order of the Court, served on the At­
torney General of the State. In response to that notice, 
the Attorney General appeared in behalf of the State in 
his official capacity, and filed with the Court an amicus 
curiae brief, which the Court declares to be such appear­
ance as will make the judgment rendered in this case bind­
ing on the State as well as upon the plaintiff and the class 
defendants.

Under authority of Brown v. Board of Education, 347 
U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), and other 
subsequent decisions of the Supreme Court of the United 
States, this Court declares that insofar as it proscribes the 
placing of children of different colors in the same school, 
or requires that distinct and separate schools be estab­
lished for white and colored children, Section 5 of the 
Charter of the Board of Public Education and Orphanage 
for Bibb County is invalid as held in said decisions of the 
Supreme Court of the United States.

This Court further declares that the invalidity of Section 
5 of the Charter of the Board of Public Education and 
Orphanage for Bibb County, under the decisions of the 
Supreme Court of the United States handed down long 
years after said Charter was granted by the Georgia Gen­
eral Assembly, does not render invalid any of the other 
sections or provisions of said Charter. This declaration is 
made on the basis that said Charter is to be regarded as a 
statute enacted by the Legislature and that the laws of 
severability of parts of statutes apply. Where a part of a



358

Defendants’ Exhibit D-ll

statute is clearly invalid, if, after the objectionable part is 
stricken, enough remains to accompish the main purpose 
of the statute, the valid part will be upheld. Davis v. State, 
204 Ga. 467, 471, 472; Cain v. Smith, 117 Ga. 902, 907, 908; 
Elliott v. State, 91 Ga. 694, 696(2); Moseley v. The State, 
176 Ga. 889. Clearly the main purpose of the Charter here 
under consideration was to grant to the Board of Public 
Education and Orphanage for Bibb County the right to op­
erate and maintain a system of public schools for both white 
and colored children. It is equally clear that it was intended 
that separate schools should be provided for the different 
races, but this provision was secondary to the main and 
broader purpose of operating a system of schools for all 
children within the stated age limits. Therefore, the sec­
tion providing for separate schools for the white and col­
ored races, being secondary, can be lifted out and com­
pletely eliminated as being unconstitutional, and thereby 
leave a valid charter under which the Board may continue 
to operate. Irvin v. Gregory, 86 Ga. 605; Mayor and Coun­
cil of Gainesville v. Simmons, 96 Ga. 477. See also: State 
Board of Education v. Board of Education of Savannah, 
186 Ga. 783 (2); Rowell v. Pate, 119 Ga. 537.

W h e r e f o r e , i t  is  a d ju d g e d  a n d  d e c l a r e d  b v  t h e  c o u r t :

(a) That the plaintiff has legal authority under its 
Charter, as amended, to establish, operate and maintain 
public schools in Bibb County other than distinct and sepa­
rate schools for white and colored children;

(b) That the plaintiff has, by reason of the decisions of 
the Supreme Court of the United States in Brown v. Board 
of Education, 347 U. S. 483; Brown v. Board of Education, 
349 U. S. 294, and other decisions of the same court of simi-



359

Defendants’ Exhibit D-ll

lar import, legal authority to place children of different 
colors in the same school;

(c) That the prohibitions and requirements of Section 
5 of plaintiff’s Charter are secondary to the main and 
broader purpose of operating a system of schools in the 
County of Bibb for all children within the stated age limits, 
and the invalidity of said Section 5 does not render invalid 
any other provisions of plaintiff’s Charter or affect plain­
tiff’s rights and powers thereunder.

This .....................  day of July, 1963.

J. 8. C. M. G.

Defendants’ Exhibit D-12

This exhibit is printed at R. 23.



360

D e fe n d a n ts ’ E x h ib it  D -13

BIBB COUNTY PUBLIC SCHOOLS 
Macon, Georgia

P r o c e d u r e  f o r  E x e c u t in g  S t u d e n t  T r a n s f e r  R e q u e s t s

The Bibb County Board has established the following 
procedures for executing student transfers. These pro­
cedures until changed by the Board will be observed in all 
cases to which they apply but are specifically designed 
to implement the Plan of Desegregation submitted to the 
court by the Board.

1. All existing school assignments shall continue with­
out change until or unless transfers are directed or 
approved by the Superintendent. The authority and 
duties of the Superintendent may be delegated by 
him.

2. Applications for the transfer of students to a par­
ticular school for the 1964-65 school year shall be 
made to the Superintendent during a 30-day period 
in 1964 to be announced following final approval of 
a Plan by the court, and between April 15 and May 
15 of subsequent years for the next following school 
year.

3. Students desiring to make application shall do so 
in person, or by their parents or guardians, at the 
office of the Superintendent, and will be supplied by 
the Superintendent with a form of application to be 
completed and signed by the applicant and the parent 
or guardian of the applicant. A copy of said form is 
attached hereto. The applicant will also be supplied 
with an information sheet containing instructions



361

Defendants’ Exhibit D-13

to be adhered to and informing the applicant of the 
procedures which will be followed in connection 
with his application. A copy of the Information 
Sheet dated 15 February 1964, Serial 223, is attached 
hereto. The applicant will sign a receipt for the 
application form and for the Information Sheet. A 
copy of the receipt to be signed by the applicant is 
attached hereto. The application may be completed 
in the Superintendent’s office on the initial visit or it 
may be completed and thereafter filed within the 
specified period.

4. The Superintendent will immediately send a Student 
Data Form to the principal of the applicant’s school, 
requesting a complete transcript of the applicant’s 
school grades and other information from the stu­
dent’s records. A copy of the Student Data Form is 
attached hereto.

5. A separate application must be filed by each student 
desiring transfer and no joint application will be 
considered. Applications for transfer must be filled 
in completely and legibly in ink or typewriter and 
must be signed by the student and his parents or 
guardian. The term “guardian” shall mean the per­
son standing in parental relationship to the student 
whether or not the legally appointed guardian.

6. Within ten days after the student’s transcript and 
Data Form have been received at the Board of Edu­
cation the Superintendent will determine whether 
the student is eligible on his record to be enrolled 
in the grade requested, whether the school to which 
transfer is requested is available to the student on 
the basis of its location and usable transportation



362

Defendants’ Exhibit D-13

facilities, and whether the school to which transfer 
is requested has sufficient capacity to permit the 
transfer. On the basis of this determination the 
Superintendent will either approve or reject the 
request, and notice of the action taken will be mailed 
to the student’s parents or guardian at the address 
shown on the application. A transfer permit will be 
included in cases where the transfer is approved 
which should be presented to the principal of the 
school to which the student is transferred.

7. Before taking final action on a requested transfer 
the Superintendent may decide that a conference is 
necessary with the applicant and his or her parents 
or guardian to point out and possibly clear up dis­
crepancies or irregularities on the face of the record, 
and before approving the application the Superin­
tendent may decide that such a conference is desir­
able to point out other reasons, if any, why in his 
opinion it is not in the applicant’s own best interest 
to actually make the requested transfer. The appli­
cant may after such conference accept or reject the 
Superintendent’s advisory recommendation which 
shall be noted on the application.

8. If applicant’s request for transfer is disapproved, he 
may request a hearing before the Board. Such re­
quest must be in writing and must be made within 
ten days from the date the notice of action by the 
Superintendent was mailed to applicant’s parents 
or guardian.

9. If a hearing before the Board is requested, the par­
ents or guardian will be given ten days written notice 
of the date and place of the hearing. Applicant and



363

Defendants’ Exhibit D-13

applicant’s parents or guardian must attend the 
hearing. Failure without reasonable excuse to ap­
pear at the hearing will be deemed a withdrawal of 
the application. The hearing will be begun as soon 
as possible and in any event within twenty days. 
The Board may conduct such hearing or may desig­
nate not less than three of its members to conduct 
the same and may provide that the decision of the 
members designated or a majority thereof shall be 
deemed a final decision by the Board.

10. The results of the hearing will be mailed to the 
parents or guardian of the applicant as soon as 
practicable. If the transfer is approved as a result 
of the hearing, a transfer permit will be included in 
the letter and should be presented to the principal 
of the school to which applicant is transferring.

11. Admission of pupils in the adult vocational educa­
tion program will be determined by vocational apti­
tude and classification test, a personal interview by 
the director of the vocational education program or 
his designated representative and upon recommen­
dation of the director of the adult vocational educa­
tion program.

12. Nothing contained in these regulations shall be 
construed to prevent the separation of boys and 
girls in any school or grade, or to prevent the assign­
ment of boys and girls to separate schools.

13. The established Buies of the Board governing High 
School Transfers which are printed in the 1963-64 
Annual Report at page 104 shall continue in effect 
to the extent applicable unless clearly in conflict



364

Defendants’ Exhibit D-13

herewith. A person in disciplinary difficulty at one 
school may for that reason alone he denied transfer 
from that school to another.

14. If any paragraph of these rules and procedures 
shall be held by any court of competent jurisdiction 
to be invalid for any reason, the remaining para­
graphs shall continue in full force and effect. If 
any portion, clause, or sentence of any paragraph 
shall be held by any court of competent jurisdiction 
to be invalid for any reason, the remainder of any 
such paragraph shall continue in full force and 
effect.



TO THE SUPERINTENDENT OP SCHOOLS;

BIBB COUNTY BOARD OP EDUCATION 
2064  V i n e v i l l e  A venue  

M acon, G e o r g ia

APPLICATION FOR TRANSFER OR REASSIGNMENT CT PUFILS IN BIBB COUNTY SCHOOLS

Hobs Addrass__________ ___________ _____
F a t h e r ' s  Maas 

M o th e r 's  Maas 

Nana o f  L e g a l G u ard ian

C h ild  l i v e s  w ith :  M other __JPathar__

S c h o o l  in  w h ic h  you  a r e  p r e s e n t l y  e n r o l l e d

S c h o o l t o  w h ich  you  d e s i r e  t o  t r a n s f e r _____

R eason  f o r  r e q u e s t in g  t r a n s f e r _______

D ate

Age Sax ______
Da t e  o f  g i r t h  

Ag e

__

______ ______  Age

Guardian Ot h e r _____

______________ Grade

Grade

A l l  a c h o o h  a t t e n d e d  ( i n  o r d e r  o f  a t t e n d a n c e ,  g i v e  d a t e s )

Signature of Applicant Signature of Parent 
or Guardian

Witness



365



366

Defendants’ Exhibit D-13

BIBB COUNTY PUBLIC SCHOOLS 
Macon, Georgia

I nformation Sheet

15 February 1964 
Serial 223

Instructions
1. Read all questions carefully before completing the 

application blank.
2. Yon and yonr parent or guardian must sign the 

application blank in the presence of a witness.
3. After you have completed the application blank a 

Student Data Form will be sent to the principal of 
the school of your original assignment. The Student 
Data Form requests your original principal to send 
a transcript of your school grades to the Board of 
Education office.

4. Within ten days after your transcript and Student 
Data Form have been received at the Board of 
Education, the Superintendent will evaluate your 
records and determine (1) whether on the basis of 
the transcript of your school grades you are eligible 
to transfer to the grade you have requested, (2) 
whether the school to which transfer is requested is 
reasonably available to you based on its location 
and usable transportation facilities, and (3) whether 
the request for transfer is feasible in terms of the 
physical capacity of the school to which transfer is 
requested.



367

Defendants’ Exhibit D-13

5. When the Superintendent has completed his evalua­
tion of these factors he will take action upon your re­
quest, and notice of the action taken will be mailed to 
your parents or guardian at the address shown on the 
application. A transfer permit will be included in 
cases where the transfer is approved. It should be 
presented to the principal of the school to which 
you are being transferred.

6. Before taking final action on a requested transfer the 
Superintendent may decide that a conference is nec­
essary with the applicant and his or her parents or 
guardian to point out and possibly clear up dis­
crepancies or irregularities on the face of the record, 
and before approving the application the Superin­
tendent may decide that such a conference is desir­
able to point out other reasons, if any, why in his 
opinion it is not in the applicant’s own best interest 
to actually make the requested transfer. The appli­
cant may after such conference accept or reject the 
Superintendent’s advisory recommendation which 
shall be noted on the application.

7. If your request for transfer is disapproved, you may 
request a hearing before the Board. Such request 
must be in writing and must be made within ten days 
from the date the notice of action by the Superin­
tendent was mailed to your parents or guardian.

8. If a hearing before the Board is requested, the 
parents or guardian will be given ten days notice 
of the date and place of the hearing. You and your 
parents or guardian must attend the hearing. Failure 
without reasonable excuse to appear at the hearing 
will be deemed a withdrawal of the application.



368

Defendants’ Exhibit D-13

9. The results of the hearing will be mailed to the 
parents or guardian of the child as soon as prac­
ticable. If the transfer is approved as a result of 
the hearing, a transfer permit will be included in 
the letter and should be presented to the principal 
of the school to which you are transferring.

10. The established Rules of the Board governing High 
School Transfers which are printed in the 1963-64 
Annual Report at page 104 shall continue in effect 
to the extent applicable unless clearly in conflict 
herewith. A person in disciplinary difficulty at one 
school may for that reason alone be denied transfer 
from that school to another.



369

Defendants’ Exhibit D-13

BIBB COUNTY PUBLIC -SCHOOLS 
Macon, Georgia

Date....................

To: Mr. Julius Gholson
Superintendent of Schools 
Macon, Georgia

This is to acknowledge receipt of the “APPLICA­
TION FOE TRANSFER OR REASSIGNMENT OF 
PUPILS IN BIBB COUNTY SCHOOLS” and a copy 
of the Information Sheet dated 15 February 1964, 
serial no. 223.

Student...................................... -...... Birthdate...................

Address.................................................................................
Present School....................................-..... Grade.................

Signed.



370

Defendants’ Exhibit D-13

(See opposite) Kir3



m i  cm m  ra iL ic  schools

Macon, Georgia

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371



372

Defendants’ Exhibit D-13

BIBB COUNTY BOARD OF EDUCATION 
Macon, Georgia

Administrative Regulations for
Assignments and Transfers oe P upils in B ibb County

1. The Superintendent shall have authority to deter­
mine the particular public school to be attended by 
each child applying for assignment or transfer, and 
no child shall be entitled to be enrolled or entered in 
a public school until he has been assigned thereto by 
the Superintendent or his duly authorized represen­
tative. All existing school assignments shall con­
tinue without change until or unless transfers are 
directed or approved by the Superintendent or his 
representative.

2. Any pupil desiring to transfer from one school to 
another will adhere to the instructions contained in 
the Information Sheet dated 15 February 1964, serial 
number 223, in addition to any regulations contained 
in the Annual Report of the Board of Education.

3. Forms for making application to transfer from a 
school of original assignment shall be made avail­
able at the Superintendent’s office.

4. Upon completion of the form the Superintendent 
shall forward to the principal of the school of orig­
inal assignment a Student Data Form, and request 
a complete transcript of the applicant.

5. The principal will within five days complete the 
Student Data Form, sign the certification at the bot­
tom and transmit the form, plus a complete tran-



373

Defendants’ Exhibit D-13

script and any other pertinent information, to the 
Superintendent.

6. Notice of the action taken on all applications by the 
Superintendent is made in writing to the parents of 
the student. No transfer pupil will be enrolled in a 
school until the student presents a transfer permit 
which is included in the Superintendent’s letter of 
notification of approval of Ms request to transfer.



374

D e fe n d a n ts ’ E x h ib it  D -14

# # # # #

PUPILS
1. All school districts within the county have been abol­

ished and pupils shall attend such school or schools as may 
be designated by the Superintendent.

PRINCIPLES OF HIGH SCHOOL TRANSFERS
2. Transfers of pupils from one high school to another 

shall be subject to the provisions of rule 1 above, and to 
the following additional conditions:

a. A person in disciplinary difficulty at one school may
not transfer from that school to another.

b. Transfers will not be made except:
1. During the first five days of the school year, or 

during the five school days following the first and 
second grading periods.

2. When the parents of the student move from the 
vicinity of one school to the vicinity of another. 
Except in hardship cases, requests for this type of 
transfer should be made within five days after the 
parents move.

3. Students promoted from elementary to high school 
are pre-registered at a designated high school. If 
a transfer from the designated high school becomes 
necessary before the beginning of the next school 
term the student should obtain a certificate of 
transfer from the school which holds his record 
and then register, prior to the opening date of 
school, with the school to which he is transferring.



375

Defendants’ Exhibit D-14

4. All students transferring from one school to an­
other must present a certificate of transfer issued 
and signed by the principal of the school from 
which the transfer is being made.

c. Not more than one transfer will be made during grade 
8 and not more than one transfer will be made dur­
ing grade 9. After a student enters grade 10 not more 
than one transfer will thereafter be made. A transfer 
made during the summer is considered as being made 
during the following school year.

^  ^  ^  it



376

D e fe n d a n ts ’ E x h ib it  D-15

(Letterhead of Dudley M. Hughes Vocational School, 
Macon, Georgia)

April 12, 1964

VOCATIONAL EDUCATION AND THE 
PLAN FOR INTERGRATION

It would seem that possibly the ADULT Vocational Edu­
cation Program should be the most important area of edu­
cation to consider as the No. 1 priority for intergration in 
Bibb County.
The Negro leadership has placed much emphasis on this 
and rightfully so. Unskilled labor is no longer in demand 
and the pressure for training Negroes for available job 
opportunities is tremendous. Many governmental and other 
job opportunities are offered to Negro applicants, but the 
Negro community does not have people qualified to perform 
the job duties, therefore, the cry of discrimination is heard 
from many sources. In reality, the Negro applicant does 
not have the ability to perform the job duties and is not 
hired for the job.
The administrative personnel of the Bibb Board of Educa­
tion are keenly aware of this situation. Several moves have 
already been made toward as much correction of the prob­
lem as possible.
Qualified Negroes have been taken into programs that of­
fered job opportunities of outstanding nature. (Electronic 
Technology and Offset Printing—Adult Program.)
These Negroes were taken into the program of vocational 
education not by court order but by voluntary arrange­
ments made by the Board of Education.



377

Defendants’ Exhibit D-15

The vocational program for Negroes is now conducted pri­
marily at Ballard Hudson High School. It is felt that anal­
ysis of the program at Ballard Hudson in comparison with 
the Dudley Hughes program might be of some value in 
determining just what has been and is being done in the 
area of vocational training for both races.

1. WORK-STUDY PROGRAMS (3 hours in school and 
remainder of day working for employer. High School 
students in 11th and 12th grades.)
a. Dudley Hughes

1. Distributive Education (High School)
2. Diversified Cooperative Training (High School)
3. Vocational Office Training (High School)

b. Ballard Hudson
1. Distributive Education (High School)
2. Diversified Cooperative Training (High School)
3. No Vocational Office Training—work program— 

is offered at Ballard Hudson due to the fact that 
the community will not employ enough part time 
NEGRO office workers to support the program. 
(These part time students are not eligible for 
government work.)
NOTE: The high school program at Ballard 
Hudson does offer business education courses of 
regular high school level to students desiring 
this in-school type of business and office train­
ing.



378

Defendants’ Exhibit D-15

2. TRADE PREPARATORY PROGRAMS 
(High School)
a. Dudley Hughes

1. Auto Mechanics
2. Machine Shop
3. Refrigeration
4. Woodshop
5. Printing
6. Radio-Television
7. Beauty School
8. Barbering
9. Electrical Installation and Maintenance

10. Office Training
b. Ballard Hudson

1. Auto Mechanics
2. Architectural Drafting
3. Trade Carpentry
4. Brickmasonry
5. Beauty School
6. Shoe Repair
7. Tailoring (Custom and alteration)
8. Office Training

3. PROPOSED PROGRAMS TO BE OFFERED IN 
NEW AREA VOCATIONAL TECHNICAL 
SCHOOLS (All adult students)
a. Ballard Hudson

1. Auto Body and Pender
2. Machine Shop



379

Defendants’ Exhibit D-15

3. Radio-Television Repair
4. Electronic Technology
5. Barbering
6. Welding
7. Beauty School
8. Practical Nursing
9. Business Education

b. Dudley Hughes
1. Auto Mechanics
2. Barbering
3. Business Education
4. Drafting
5. Electronic Technology
6. Machine Shop
7. Welding
8. Radio-Television Repair
9. Electrical Installation and Maintenance

10. Printing Technology
11. Practical Nursing
12. Refrigeration-Air Conditioning and Heating

The amount of money available to spend on the two schools 
(structural only) is $800,000.00 (Eight Hundred Thousand 
Dollars). The division of the money was made on a popu­
lation breakdown basis. The Negro school was allocated 
Two Hundred and Fifty Thousand Dollars and the white 
school Five Hundred and Fifty Thousand Dollars.
It is intended that the Negro school act as a “feeder” to 
the white vocational school and that the entire adult pro­
gram accept QUALIFIED Negro applicants. A testing and



380

Defendants’ Exhibit D-15

screening program which has been in effect for the past 
eighteen months will test ALL applicants as is now being 
done. This program of testing is most necessary to a suc­
cessful vocational program and it is used for screening 
NOT elimination.

The Negro community is presently being offered an elec­
tronics program at Ballard Hudson for adult students and 
few are taking advantage of it. This program is under 
title VIII of the National Defense Education Act. A draft­
ing technology program was started under this same act for 
adults but was closed out due to lack of interest. A busi­
ness education program now being offered at Ballard Hud­
son for adults does not have enough participation to qualify 
for State and Federal funds and is being paid for from the 
local vocational budget.

It is realized by Board of Education officials and school 
administrators that a balance between training for posi­
tions already open to Negroes and training for positions 
expected to become open for Negroes is necessary. The 
new trade schools going to bid within the next sixty days 
were planned with this balance in mind.
The philosophy of vocational education in past years has 
been to train workers for jobs that were available. It is 
realized now that some Negroes need to be trained for jobs 
that might become available to them due to changing job 
opportunities for Negroes.
The Bibb County Board of Education is aware of this situ­
ation and is endeavoring in every way to cope with it.
A concrete move to do this is evidenced by the course offer­
ings in the Negro vocational school plan—see list below 
and “notes” :



381

Defendants’ Exhibit D-15

a. Auto Body and Fender (May be job openings)
b. Beauty School (Excellent job opportunity now)
c. Practical Nursing (Excellent now)
d. Business Education (Excellent now in State and 

Government)
e. Machine Shop (None now)
f. Barbering (Excellent now)
g. Welding (Very limited now)
h. Radio-Television (Very limited)
i. Electronic Technology (Government only)

The adult vocational program is the program under con­
sideration for intergration.
In no way is this to be construed as pertaining in any man­
ner toward intergration of the Dudley Hughes High School 
operation other than on conditions applicable to all other 
Bibb County High schools.

/ s /  Raymond M. K elley 
Director Vocational Education Bibb County



382

Defendants’ Exhibit D-16

We wish to make it clear that the Bibb County Board of 
Education has no desire to shirk or evade or to surrender 
either its corporate responsibilities or its corporate pow­
ers. It is the objective of this petition to obtain a decision 
by this court under which plaintiff can lawfully under its 
charter provide a system of public schools for both white 
and colored children in Bibb County notwithstanding a part 
thereof may be invalid which requires that separate and 
distinct schools shall be provided for the different races.