Calhoun v. Latimer Transcript of Record Volume III

    TRANSCRIPT OF RECORD

UNITED STATES

COURT of APPEALS
F I F T H  C I R C U I T  

No.

VIVIAN CALHOUN, et al.

v.

Appellants

A. C. LATIMER, et al.

Appellees

VOLUME III

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

Georgia, Atlanta Division



I N D E X
(Volume III)

Page
ORDER OP COURT.................    1
ORDER OF COURT..................................  10
RESPONSE OF DEFENDANTS TO PLAINTIFFS1MOTION FOR FURTHER RELIEF ......................  13

EXHIBIT A - Resolution Creating the General
Assembly Committee on Schools. . 21

NOTICE OF APPEAL..............   28
MOTION TO DISMISS APPEAL ........................  30
NOTICE OF MOTION................................  31
ORDER ON MOTION TO DISMISS A P P E A L ..............  32
AMENDED MOTION TO DISMISS APPEAL ................  34
ORDER OF COURT..................................  35
TRANSCRIPT OF HEARING ON JULY 3, 1962 ..........  36
TRANSCRIPT OF HEARING ON DECEMBER 14, 1959 . . . .  73
DEFENDANTS' CROSS DESIGNATION OF CONTENTS
OF RECORD ON A P P E A L ...............................120



1.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

VIVIAN CALHOUN, ET AL
VS

)
)
)
)

No. 6298
CIVIL ACTION

MEMBERS OF BOARD OF EDUCATION, ) 
CITY OF ATLANTA, ET AL )

ORDER OF COURT
Filed June 16, 1959

STATEMENT OF THE CASE
In this action a number of negro children of Atlanta 

seek to obtain an injunction against defendants who are in 
charge of the operation of the Atlanta Public School System 
"from operating the Public School System of Atlanta on a 
racially segregated basis and enjoining the defendants from 
refusing to permit the minor plaintiffs to attend any public 
school in the City of Atlanta which they are otherwise 
qualified to attend solely because of their race and color". 
The plaintiffs do not allege that they have made application 
for admission to any particular school in Atlanta and have 
been denied admission solely on account of their race.
They do contend, however, that defendants "are presently 
operating the Public School System of Atlanta on a racially 
segregated basis pursuant to policy, usage, regulations and



Order of Court 2.

laws of the State of Georgia enforcing racial segregation 
in public institutions (Para. 9)". It is alleged that the 
next friends of those minor plaintiffs being their parents, 
have filed between the dates of June 1955 through Septem­
ber 1956 written petitions with defendants to reorganize 
such public schools on a racially non-segregated basis in 
compliance with the decision of the United States Supreme 
Court in the case of Brown vs. Board of Education, 347 U.S. 
483, but defendants have failed and refused to do so.

Just prior to the trial of the case this Court 
entered an Order to the effect that the Court would take 
judicial cognizance of the fact that the Public Schools of 
Atlanta had been operated, and were being operated, on a 
racially segregated basis. This assumption by the Court 
was based upon certain acts of the Georgia Legislature pre­
venting the mixing of the races in the schools, the politi­
cal campaigns of many officials pledging the continuance 
of segregation, public meetings held in the City of Atlanta 
debating the question as to whether, should the Court 
enjoin segregation, the Atlanta Public Schools should be 
closed and private schools organized, or whether on the 
other hand there should be so-called "token integration" 
similar to that as contemplated by a recent Act of the 
Legislature of the State of Alabama, which has had the 
approval of the United States Supreme Court.

Counsel for defendants, however, made vigorous



Order of Court 3.

objection to this assumption upon the part of the Court 
and expressed a desire to produce evidence to show that 
defendants had not pursued a policy of racial discrimina­
tion in violation of the principles set down by the United 
States Supreme Court, by the Fifth Circuit Court of 
Appeals, and by many other appellate courts in the land.
As the burden of proof on that issue rested with the plain 
tiffs the Court heard evidence on the same from several 
witnesses, but did not find it necessary to hear from some 
forty-one witnesses in the court room which were sworn by 
the parties. Witnesses on the same issue, which would 
have been cumulative, were not heard. The trial consumed 
one usual court day, extending from 9:30 A.M. to 4:30 P.M. 
at the conclusion of which the Court announced its ruling 
but, on account of the pressure of other trials, has not 
been able until now to prepare Findings of Fact, Conclu­
sions of Law and a Final Decree.

THE FACTS IN THE CASE
The testimony was undisputed to the effect that 

plaintiffs are negro children of the City of Atlanta, 
attending its public schools, and that such schools are 
under the control and supervision of defendants. It is 
undisputed that defendants now, and ever since the estab­
lishment of the Atlanta School System, have been provid­
ing separate schools for white and negro children,



Order of Court 4.

although defendants through their counsel contended that 
such separation arose through the choice of the negroes 
themselves. The sole issue of fact therefore was whether 
or not racial discrimination existed in the custom and 
practice of the operation of the Atlanta Public Schools.
The Court finds that the undisputed evidence in the case 
demands that this question be answered in the affirmative.

Plaintiffs put upon the witness stand one of the 
defendants, Dr. Rufus E. Clement, a negro who had been 
elected and re-elected by the citizens of Atlanta to the 
Board of Education. He testified positively that racial 
discrimination did exist. Miss Ira Jarrell, for some years 
Superintendent of the Atlanta Public Schools, she being a 
defendant who was sworn as an adverse witness, testified 
as to the manner in which school children, negro and white, 
were allocated to the various schools. While she did not 
testify that definite areas surrounding each of the schools 
were designated for either white or colored, she stated 
that for the most part children did attend the schools 
nearer to their residences, but that requests by students 
and their parents to be allowed to attend other schools 
were usually granted.

Plaintiffs put in evidence excerpts from the Minutes 
of many meetings of the Board of Education from which it 
appeared that certain schools of the city were designated 
as "colored", others as "white". Thus, the Minutes of



Order of Court 5.

April 11, 1955 showed a recommendation for the election 
of a certain person as a teacher under the classification 
"colored, elementary" and two others under the classifica­
tion "colored". Similar references are made in the Minutes 
of some ten other subsequent meetings, extending almost to 
the date of the trial. There was also undisputed evidence 
to the effect that in connection with the issuance of 
bonds for the building of new schools through many years, 
designation was made of such schools as "negro" or "white".

If, however, there exists any room for doubt as to 
racial discrimination prior to 1955, it would be dispelled 
by the circumstance that during that year and for some 
years subsequent thereto, the plaintiffs in this case have 
filed written petitions with defendants seeking the end­
ing of racial discrimination. They were not advised that 
racial discrimination did not exist, but on the other hand 
were informed that the matter would be taken under con­
sideration and studied. There the matter has rested for 
some four years.

NATURE OF THE DECREE TO BE RENDERED 
At the opening of this trial the Court announced 

that relief would be awarded petitioners similar to that 
granted by the United States District Court for the 
Eastern District of Louisiana, which was approved on 
appeal by the Fifth Circuit Court of Appeals, in the case



Order of Court

of Orleans Parish School Board vs. Bush, 242 F. 2d 156, 
decided April 5, 1957. In that case approval was given 
to a judgment of the trial court which enjoined the school 
authorities "from requiring and permitting segregation of 
the races in any school under their supervision, from and 
after such time as may be necessary to make arrangements 
for admission of children to such schools on a racially 
non-discriminatory basis, with all deliberate speed as 
required by the decision of the Supreme Court in Brown 
vs. Board of Education of Topeka, 349 U.S. 294". In that 
case, as in this one, it appeared that the plaintiffs "as 
negro students, were seeking an end to a local school 
board rule that required segregation of all negro students 
from all white students". They "were not seeking specific 
assignment to particular schools". The Court stated:

"As patrons of the Orleans Parish School System 
they are undoubtedly entitled to have the 
District Court pass on their right to seek 
relief."

Even the most ardent segregationists have now 
acknowledged that the Brown decision is the law of the land. 
Legislatures in many states, including Georgia, have since 
the rendition of that decision been passing legislation 
seeking to avoid its consequences. For this Court to 
declare as law that which is not law would be not only a 
futile gesture, but a great disservice to our people. It 
would add to the confusion already existing in the public 
mind, it would build up hopes destined to be destroyed on

6.



Order of Court 7.

appeal, and it would delay the efforts now being made by 
our people to find the best solution possible to a criti­
cal and urgent problem.

This Court is under no duty, nor does it have the 
power, to order integration, but it is compelled to enjoin 
racial discrimination. It is not the function of the 
Court to suggest to defendants how such discrimination can 
best be eliminated, but the plan must originate with the 
defendants and be submitted to the Court for approval. 
Nothing said by the Court during the trial of this case 
was intended to be an expression of opinion by the Court 
as to the plan, but the Court did assume, and now assumes, 
that any plan submitted would contemplate a gradual pro­
cess, which would contemplate a careful screening of each 
applicant to determine his or her fitness to enter the 
school to which application is made. The Supreme Court 
has said that school authorities must proceed with 
"deliberate speed" toward the elimination of racial dis­
crimination, and this Court interprets the expression 
"deliberate speed" to mean such speed as is consistent 
with the welfare of all our people, with the maintenance 
of law and order, and with the preservation if possible 
of our common school system. The custom and practice of 
maintaining separate schools for negroes and whites has 
existed in this state for many years, with the approval 
of the highest courts of the land, and it cannot rapidly 
and suddenly be ended.



Order of Court 8.

It will be necessary for defendants within a reason­
able time to signify to this Court the manner in which 
defendants propose to eliminate racial discrimination.

This Court fully recognizes the difficult position 
in which defendants herein are placed. If they integrate 
the schools, all State money under existing laws will be 
cut off and it may be that such funds are necessary for 
the operation. The continued operation, however, with 
discrimination as in the past, will not be permitted.

In cases such as this a solution must be found to 
fit the particular conditions which exist. This Court 
feels that it should give defendants a reasonable oppor­
tunity to submit to the Court a plan whereby racial dis­
crimination will be discontinued. However, such a plan 
may be submitted subject to approval thereof by the Georgia 
Legislature, and the Court would allow sufficient time for 
the Georgia Legislature to act upon the same. If defend­
ants submit a reasonable plan, and it should be approved 
by the Court, defendants would have done all that they are 
able to do under the circumstances. Failure of defendants, 
however, within a reasonable time to submit any plan what­
soever shall be construed by the Court to be a refusal to 
do so. The Court will do everything in its power toward 
working out any possible solution to this matter within 
the framework of the law, as declared upon repeated occa­
sions by our appellate courts. Counsel for plaintiffs



Order of Court 9.

shall submit to this Court a decree in conformity herewith, 
serving defense counsel, who shall within ten days of such 
service notify this Court of any objections thereto.

This the 16th day of June 1959.

______FRANK A. HOOPER_______
FRANK A. HOOPER 

UNITED STATES DISTRICT JUDGE



10.

ORDER OF COURT
(Same Title - Filed January 18, 1960)

Defendants, under Order of this Court, on January 5, 
1960 filed in this case an amendment to the proposed Plan 
of Operation of the Atlanta Public Schools. After careful 
study of the new and amended Plan the Court is in doubt 
as to the meaning of certain portions thereof contained in 
Paragraphs Four to Ten inclusive, and as to other portions 
therein included the Court is in doubt as to the suffi­
ciency thereof, and the phases of the Plan as to which the 
Court feels amendments would be proper are the following:

1 - Paragraph Four provides that applications for 
the admission, assignment or transfer of pupils shall be 
filed between May 1st and May 15th of each year. In Para­
graph Seven it is provided that the Superintendent may in 
his discretion require interviews with the child, etc.
If such interviews are contemplated to be had after the 
filing of the application and before a decision thereon 
within thirty days thereafter, this should be indicated.

2 - In Paragraph Eight it is provided that objec­
tions to action of the Superintendent may be filed with 
the Board of Education, and unless a hearing is had the 
Board shall act upon the same "within a reasonable time". 
Such "reasonable time" must be within the limits set for 
completion of all administrative procedures, to-wit, 
September 1st.



Order of Court 11.

3 - Paragraph Eight provides in effect that when 
it is determined by the Board that a hearing will be had 
it shall be begun within twenty days and the parent of the 
child given only five days notice. The Court believes 
this notice should be at least ten days.

4 - In Paragraph Nine it is provided that the Board 
may conduct hearings either before the Full Board or before 
not less than three of its members, or before one member
or a competent examiner. It is further provided in Section 
10 that the Board will notify the parents of a child of 
its decision "within ten days after the conclusion of the 
hearing". It is not clear whether said ten day period 
refers to a hearing before the full Board or the hearing 
before an examiner. It would seem that a ten days period 
would be insufficient for a hearing before an examiner, 
preparing a transcript of the evidence, report by the 
examiner to the Board, and decision thereon by the Board. 
Provisions should be made for a time limit for the filing 
by the examiner of his report to the Board and action by 
the Board on the same.

5 - Paragraph Ten provides that exceptions to the 
decision of the Board may be filed within five days notice 
of the Board's decision and the Board shall meet within 
ten days to consider the same. This could require daily 
meetings of the Board. It would be acceptable to the 
Court that the language "the Board shall meet within ten



Order of Court 12.

days" is stricken and the words "the Board shall meet 
promptly" be inserted. The time limit of September 1st 
would insure a sufficiently prompt action by the Board.

With the foregoing exceptions the Plan submitted 
by the Board is approved by the Court and all objections 
thereto are overruled. Defendants are directed on or before 
January 22, 1960 to file with this Court any amendments 
as aforesaid to the proposed Plan.

This the 18th day of January, 1960.

FRANK A. HOOPER___________
FRANK A. HOOPER 

United States District Judge



(Same Title - Filed March 8, 1960)

R E S P O N S E
Now come the defendants, pursuant to the Order of 

the Court entered February 26, 1960 and served on counsel 
for defendants February 29, 1960 and file this response 
to the motion of the plaintiffs for further relief and 
show:

1.
Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 

simply recite portions of the history of the case and do 
not set forth other facts. Consequently they require no 
response.

2 .
Responding to Paragraph 12 of the motion, defend­

ants say that the General Assembly of Georgia did convene 
as provided by the Constitution of Georgia on January 11, 
1960, the same being the second Monday in January, 
remained in session for forty days as authorized by the 
Constitution of Georgia, and adjourned on February 19, 
1960. Defendants say that at said session of the General 
Assembly, as will more fully hereinafter appear, the 
General Assembly of Georgia did adopt a resolution creat­
ing a "General Assembly Committee on Schools".

RESPONSE OF DEFENDANTS TO PLAINTIFFS1
MOTION FOR FURTHER RELIEF



RESPONSE OF DEFENDANTS TO PLAINTIFFS'
MOTION FOR FURTHER RELIEF 14.

3.
Paragraph 13 of the motion for further relief is 

denied. Further answering said paragraph, defendants say 
that it is amply a restatement of the position of the 
plaintiffs on a matter upon which the Court has already 
ruled.

4.
Further responding to the motion of the plaintiffs 

for further relief, defendants say that immediately upon 
the entry of the order of the Court of January 20, 1960 
approving the plan adopted by the defendants pursuant to 
the order and judgment of the Court in this case, defend­
ants did, as provided by the plan, through their counsel 
transmit to the President of the Senate and the Speaker 
of the House of Representatives of the State of Georgia 
copies of the plan which, as authorized and directed by 
the Court, expressly provided that it should be "contin­
gent upon the enactment of statutes by the General Assembly 
of Georgia permitting the same to be put into operation".

5.
Respondents further show that the General Assembly 

did, at its session of 1960, adopt a resolution creating 
the General Assembly Committee on Schools. A copy of said 
resolution is hereto attached, marked "Exhibit A" and made 
a part of this response.



RESPONSE OF DEFENDANTS TO PLAINTIFFS'
MOTION FOR FURTHER RELIEF 15.

6.
Said resolution requires that the Committee hold 

public hearings, at least one in each Congressional District, 
and make positive recommendations to the 1961 session of the 
General Assembly and such other and further recommendations 
as it may deem meet and proper. All such recommendations 
shall be made public not later than May 1, 1960, and the 
Committee shall stand abolished as of that day. Respondents 
show that the Committee consists of various persons who are 
made members of the Committee by virtue of their positions 
or offices, and two members of the Senate appointed by the 
President of the Senate and four members of the House of 
Representatives appointed by the Speaker of the House of 
Representatives. The Committee consists of the following 
members:
(1) Robert 0. Arnold 

Covington, Georgia

(2) Samuel J. Boykin
Carrollton, Georgia

(3) George B. Brooks 
Crawford, Georgia

(4) Harmon Caldwell 
Atlanta, Georgia

(5) H. Eulond Clary 
Thomson, Georgia

Chairman of the Board of Regents 
of the University System of 
Georgia
President of the Association of 
Superior Court Judges of Georgia 
(Judge Boykin is Judge of the 
Superior Court of the Coweta 
Judicial Circuit)
A member of the House of Repre­
sentatives appointed by the 
Speaker
Chancellor of the University 
System of Georgia
Member of the State Senate 
appointed by the President of 
the Senate



RESPONSE OF DEFENDANTS TO PLAINTIFFS'
MOTION FOR FURTHER RELIEF 16.

(6) Charles A. Cowan 
Cartersville, Georgia

(7) Cohn W. Dent 
Cartersville, Georgia

(8) John P. Duncan 
Quitman, Georgia

(9) John W. Greer 
Lakeland, Georgia

(10) J. Battle Hall 
Rome, Georgia

(11) Render Hill
Greenville, Georgia

(12) Howell Hollis
Columbus, Georgia

(13) Wallace Jernigan
Homerville, Georgia

President of the Georgia Munici­
pal Association
President of the Georgia State 
Chamber of Commerce
President of the Georgia Farm 
Bureau
Member of the State Senate 
appointed by the President of 
the Senate
Chairman of the Education Com­
mittee of the House of Repre­
sentatives
Member of the House of Repre­
sentatives appointed by the 
Speaker of the House of Repre­
sentatives
Member of the House of Repre­
sentatives appointed by the 
Speaker of the House of Repre­
sentatives
Chairman of the Educational 
Matters Committee of the State 
Senate

(14) Zade Kennimer
Waverlay Hall, Georgia

President of the Educational 
Cabinet of Georgia, represent­
ing the Georgia Education Asso­
ciation, the Georgia Association 
of School Administrators, the 
Georgia Association of School 
Board Members, and the Georgia 
Congress of Parents and 
Teachers

(15) J. W. Keyton 
Thomasville, Georgia

(16) H. W. Parker 
Sylvania, Georgia

(17) Claude Purcell 
Atlanta, Georgia

Chairman of the County Commis­
sioners Association of Georgia
Member of the House of Repre­
sentatives appointed by the 
Speaker
State School Superintendent of 
the State of Georgia



RESPONSE OF DEFENDANTS TO PLAINTIFFS'
MOTION FOR FURTHER RELIEF 17.

(18) Homer Rankin
Tifton, Georgia

President of the Georgia Press 
Association

(19) John A. Sibley 
Atlanta, Georgia

President of the Alumni Associa­
tion of the University of 
Georgia

Mr. Sibley has been chosen Chairman of the Committee, Mr. 
Duncan Vice Chairman, and Senator Greer Secretary.

7.
Respondents show that the members of the Committee, 

some or all of whom may be known to the Court, are all 
reputable, high class citizens of the State of Georgia. 
Respondents have every reason to believe that they are 
approaching the problems presented by the Order of this Court 
and the plan adopted by respondents in good faith. The Com­
mittee is now engaged in conducting hearings and respondents 
say, on information and belief, that hearings will be con­
ducted in every Congressional District of the State. 
Respondents believe that the work of the Committee will be 
completed as provided for by the resolution and its report 
submitted on or before May 1.

8.

Responding further to the motion for further relief, 
respondents say that although the General Assembly of 
Georgia has adjourned pursuant to the provision of the Con­
stitution which limits its annual sessions to forty days, 
an extraordinary session of the General Assembly can be



RESPONSE OF DEFENDANTS TO PLAINTIFFS'
MOTION FOR FURTHER RELIEF 18.

called by the Governor at any appropriate time, and the 
fact that the General Assembly completed its 1960 regular 
session without taking action other than the adoption of 
the aforesaid resolution does not mean that no further con­
sideration can be given to the matter during the current 
year. Respondents say that the plan which was adopted by 
respondents pursuant to the order of the Court was made 
contingent upon the enactment by the General Assembly of 
Georgia of statutes permitting it to be put into operation 
because the Court, in its findings of fact and conclusions 
of law filed June 16, 1959, provided that the plan might 
be submitted subject to approval by the Georgia General 
Assembly and because respondents recognize, as the Court 
recognized by its findings of fact and conclusions of law, 
that they are dependent upon State law for funds with which 
to operate the schools. They say that it is not only true 
as suggested by the Court in the order of June 16, 1959 
that State funds are necessary for the operation of the 
schools, but it is also true that the ability of the City 
of Atlanta to raise funds for the operation of the schools 
by local taxation is likewise dependent upon State laws, 
the City of Atlanta being a political subdivision of the 
State of Georgia.

9.
Respondents show that until the General Assembly 

Committee on Schools provided for by the resolution of the



RESPONSE OF DEFENDANTS TO PLAINTIFFS’
MOTION FOR FURTHER RELIEF 19.

General Assembly completes its hearings and makes its 
report and recommendations, it cannot be determined what 
action by the General Assembly will be recommended by the 
Committee, and until the General Assembly considers such 
recommendations, it cannot be determined what final action 
will be taken thereon by the General Assembly or what final 
action will be taken by the General Assembly upon the plan 
submitted to the Court and with the approval of the Court 
submitted to the General Assembly.

10.
Respondents further show that, having in good faith 

adopted the plan and submitted it to the Court for the 
Court's approval, and having in conformity with the order 
of the Court submitted the plan to the General Assembly, 
they have done all they can do towards putting the plan 
into actual operation. Respondents have no power to con­
trol the action of the General Assembly of Georgia, and no 
power to provide funds for the operation of the schools 
except in conformity with the laws of Georgia. They say 
that unless and until the Georgia General Assembly enacts 
statutes permitting the plan adopted by respondents to be 
put into operation, it cannot be put into operation because 
funds to operate the schools under the plan will not be 
available.



RESPONSE OF DEFENDANTS TO PLAINTIFFS'
MOTION FOR FURTHER RELIEF 20.

11.
Respondents say to the Court that they believe that 

it is not in the public interest or in the best interest of 
the school children of the City of Atlanta, those of the 
white race and those of the Negro race, that further relief 
be granted to the plaintiffs at this time, or that further 
relief be granted until it is determined finally that the 
plan submitted by the respondents and approved by the Court 
will not be approved by the General Assembly of Georgia.

Defendants respectfully submit this response to the 
motion of the plaintiffs in conformity with the order of 
the Court.

B. D. MURPHY_____________
J. C. SAVAGE_____________
NEWELL EDENFIELD_________
Attorneys for Respondents

CERTIFICATE
I hereby certify that before filing the foregoing 

pleadings I served the same upon the opposite party in the 
case to which said pleadings refer by this day mailing a 
copy of said pleadings to the attorneys of record for said 
opposite party, E. E. Moore, Jr. and Constance Baker Motley.

This 8th day of March, 1960.

NEWELL EDENFIELD_________
Newell Edenfield 
Attorneys for Respondents



21.
EXHIBIT "A"

H. R. No. 369
By: Mr. George Busbee of Dougherty

A RESOLUTION

To create the General Assembly Committee on Schools, to 
designate the membership, to define the duties thereof, 
and for other purposes.

WHEREAS, there has been ingrained forever in the 
hearts and minds of all Georgians the custom of segregation 
of the races in the schools of the state, public as well 
as private, which custom has met and still meets with the 
virtually unanimous approval of all but a few persons of 
each race; and

WHEREAS, this custom has over the years manifested 
itself in laws requiring segregation of the races in 
schools and requiring the closing of schools if they are 
to be integrated; and

WHEREAS, this custom and the laws of Georgia giv­
ing force to the custom were for more than ninety years in 
harmony with the Federal laws and court decisions on the 
subject, and with the principle that compulsory associa­
tion is harmful to both races; and

WHEREAS, of late due to the views of those presently 
occupying positions as Justices of the Supreme Court of the 
United States, and in spite of the fact that the Federal



22.

Congress has enacted no law to the contrary, the custom, 
and laws giving force to the custom in Georgia have become 
in irreconcilable conflict with the views expressed by the 
Justices of the Supreme Court; and

WHEREAS, relying in good faith on what was hereto­
fore the prerogative of the states under the dual system of 
government in this country, whereby certain rights were 
reserved to the states including the right of each state to 
control its schools, which system has prevailed in this 
country since the adoption of the Federal Constitution, 
Georgia and her citizens have expended many millions of 
dollars to establish a vast and valuable public school 
system with equal but separate facilities for the members 
of each of her races; and

WHEREAS, of late some few members of one of the 
races instituted suit in the Federal District Court in 
Atlanta in an effort to be integrated into the public 
schools of Atlanta with members of the opposite race on 
the basis of rights allegedly accorded them by the Supreme 
Court of the United States; and

WHEREAS, the Honorable Judge Frank A. Hooper,
Senior Judge of that court, a native Georgian who was for­
merly a Superior Court Judge and a member of the Court of 
Appeals of Georgia and who was formerly also a member of 
the Georgia General Assembly, has ruled that the plaintiffs 
in the Atlanta suit are entitled to attend schools

EXHIBIT "A"



23.

established by Georgia law for white children and this rul­
ing may result in instances of integration in the schools 
of Atlanta, and Judge Hooper directed at the same time that 
the Board of Education of Atlanta submit a plan to the court 
ending segregation in the schools of Atlanta, which plan, 
being a so-called Pupil Placement Plan, has been submitted; 
and

WHEREAS, Judge Hooper further ordered the Board of 
Education of Atlanta to refer the plan to this General 
Assembly for consideration and action; and

WHEREAS, at a hearing upon the plan as submitted by 
the Board, Judge Hooper demonstrated patience and an under­
standing of the grave problems which may result in Georgia 
because of the difference between the views of the Supreme 
Court and Georgia laws and customs; yet, nevertheless being 
bound by the decision of the Supreme Court, Judge Hooper 
suggested that the people of Georgia should decide whether 
to follow the court's view of a plan of gradual elimination 
of segregation in the schools, or to close the Georgia 
schools; and

WHEREAS, this statement of Judge Hooper apparently 
recognized what the Constitution of Georgia provides, 
namely that:

"All government, of right, originates with the 
people, is founded upon their will only, and 
is instituted solely for the good of the whole. 
Public officers are the trustees and servants 
of the people, and at all times amenable to 
them."

EXHIBIT "A"



2 4 .

and that they are and should be the final arbiters of the 
question giving rise to this grave crisis; and

WHEREAS, during the administration of the Honor­
able Herman E. Talmadge the Constitution of Georgia was 
amended to provide for direct tuition grants of state, 
county or municipal funds to citizens of Georgia for edu­
cational purposes in discharge of all obligation of the 
state to provide an adequate education for its citizens, 
and under this Constitutional provision Georgia is entitled 
to convert over to a system of direct tuition grants in an 
orderly way, provided no state or local governmental action 
in connection with such schools as are operated is entail­
ed ; and

WHEREAS, this General Assembly believes that the 
people of Georgia may wish to make a deliberate determina­
tion as to whether future education is to be afforded 
through direct tuition payments for use in private schools 
devoid of governmental control, or whether the public school 
system as it presently exists shall be maintained notwith­
standing that the school system of Atlanta and even others 
yet to come may be integrated; and

WHEREAS, in order that this General Assembly may 
make a determination as to the wisdom of presenting this 
question to the people, it is necessary to receive the 
advice and counsel of the people not only as to the desir­
ability of the presentation, but also as to its form and 
content; and

EXHIBIT "A"



2 5 .

WHEREAS, the great majority of the members of this 
Assembly were elected on a pledge to maintain segregated 
schools at all costs and are not willing to retreat from 
that position; and

WHEREAS, it is the desire of this General Assembly 
to give good faith consideration to the order and judgment 
of Judge Hooper and to the Atlanta School Board plan sub­
mitted to this body at his direction;

NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL 
ASSEMBLY OF GEORGIA that there be and is hereby created 
and established the General Assembly Committee on Schools 
which Committee shall be composed of the following: The
Chairman of the Senate Committee on Education; the Chairman 
of the Education Committee of the House of Representatives; 
the Chairman of the Board of Regents; the Chancellor of 
the University System; the State Superintendent of Schools; 
the present Presidents of the following: State Chamber of
Commerce; County Commissioners Association of Georgia; 
Georgia Municipal Association; Superior Court Judges Asso­
ciation of Georgia; Georgia Farm Bureau; Education Cabinet 
of Georgia representing the Georgia Education Association, 
Georgia Association of School Administrators, Georgia Asso­
ciation of School Board Members, and the Georgia Congress 
of Parents and Teachers; the Georgia Press Association; 
the Alumni Society of the University of Georgia; two mem­
bers of the Senate to be appointed by the President; and

EXHIBIT "A"



EXHIBIT "A" 26.

four members of the House of Representatives to be appoint­
ed by the Speaker;

BE IT FURTHER RESOLVED that the Georgia Assembly 
Committee on Schools shall proceed immediately upon the 
adjournment of this session to hold public hearings under 
such rules and procedures as may be promulgated by the 
Committee, and after ample notice thereof, to the extent 
of at least one hearing in each Congressional District of 
this State on the subject of maintaining public schools in 
Georgia in light of the order and judgment of Judge Hooper, 
or whether the people prefer a system of direct tuition 
grants under the Georgia Constitution for use in private 
schools, and that such suggestions as may be offered on or 
in modification of either course be received and consid­
ered, and that the Atlanta plan also be considered; and

BE IT FURTHER RESOLVED that the Committee shall 
make positive recommendations to the 1961 Session of the 
General Assembly regarding whether or not to submit the 
question to the people of Georgia for their determination, 
and in the event the Committee recommends such course, 
then the time, manner and form of the submission including 
its contents shall be recommended. The Committee shall 
also make such other and further recommendations as it may 
deem meet and proper. All recommendations of the Committee 
shall be made public not later than May 1, 1960, and shall 
also be transmitted to the presiding officers of the



27.

Senate and House of Representatives. The Committee shall 
stand abolished as of that date.

The members of the Committee and counsel to be 
selected by the Committee shall receive the compensation, 
per diem, expenses and allowances authorized for members 
of interim legislative committees not exceeding 60 days, 
provided, however, said time may be extended with the 
joint approval of the Speaker of the House and the Presi­
dent of the Senate. The Committee is authorized to 
employ clerical help and other personnel to assist it in 
the performance of its duties and to fix the compensation 
therefor. It is also authorized to obtain materials and 
supplies necessary for its work. The funds necessary for 
the purposes of this resolution shall be paid from the 
funds appropriated to or available to the legislative 
branch of the government.

EXHIBIT "A"



NOTICE OF APPEAL 28.
(Same Title - Filed March 19, 1960)

The plaintiffs herein, Vivian Calhoun, Cornetha 
Calhoun and Fred Calhoun, infants, by Willie Calhoun, their 
father and next friend; Cornell Harper, Jessie Lee Harper, 
Betty Jean Harper and Frank Harper, infants by Henry L. 
Harper, their father and next friend; Leanard Jackson, Jr., 
Cecelia Jackson, Phyllis Jackson, and Reba Jackson by 
Leanard Jackson, Sr., their father and next friend; Betty 
Jean Winfrey, Jenning Winfrey, Melvin Winfrey, Sharon Win­
frey, and Doris Winfrey, by Roosevelt Winfrey, their father 
and next friend; Juanita Fears and Johnny Fears, by Johnny 
Fears, Sr., their father and next friend; Onithia Putnam 
and Cloud Putnam, by Dock Putnam, their father and next 
friend; Ernest Swann and Charles Swann, by Ralph Swann, 
their father and next friend; James Lester and William 
Lester, by David Lester, their father and next friend; 
Sandra McDowell and Snowdra McDowell, by Hudie McDowell, 
their father and next friend; Delane Jenkins and Marion 
Jenkins, by Mrs. Ruth Smith, formerly Mrs. Ruth Jenkins, 
their mother and next friend, herewith appeal to the United 
States Court of Appeals for the Fifth Circuit from the 
order entered in this cause on the 9th day of March, 1960 
denying their motion for further relief.

E. E. Moore, Jr.
Suite 201
175 Auburn Avenue N.E.
Atlanta, Georgia



NOTICE OF APPEAL 29

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

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

Attorneys for Plaintiffs

Donald L. Hollowell 
A. T. Walden

Of Counsel



3 0 .

MOTION TO DISMISS APPEAL 
(Same Title - Filed March 24, 1960)

Come now the plaintiffs by their undersigned 
attorneys and move this court for an order pursuant to the 
provisions of Rule 73(a) of the Federal Rules of Civil 
Procedure, dismissing their appeal herein, and as grounds 
therefor show the following:

1) On March 9, 1960 this Court entered an order 
reserving decision on plaintiff's motion for further relief 
filed in this cause on February 26, 1960 and setting a 
hearing thereon on May 9, 1960 before this Court.

2) On the same day, plaintiffs filed a notice 
of appeal from said order to the United States Court of 
Appeals for the Fifth Circuit and posted the required 
bond for costs.

3) Plaintiffs have not taken any further steps 
to perfect their appeal and the appeal has not been 
docketed in the said Court of Appeals.

WHEREFORE, plaintiffs pray that this Court enter 
an order dismissing their appeal.

E. E. MOORE, JR.
Suite 201
175 Auburn Avenue N.E. 
Atlanta, Georgia

Donald L. Hollowell 
A. T. Walden

CONSTANCE BAKER MOTLEY 
THURGOOD MARSHALL 
Suite 1790 
10 Columbus Circle 
New York 19, N.Y. 
Attorneys for PlaintiffsOf Counsel



31.
NOTICE OF MOTION

TO:
B. D. Murphy, Esq.
1130 C. & S. Bank Building
Atlanta, Georgia
Attorney for Defendants

PLEASE TAKE NOTICE that the undersigned attorneys 
for plaintiffs filed on the 24th day of March, 1960 the 
foregoing motion to dismiss appeal in the United States 
District Court for the Northern District, Georgia, Atlanta 
Division.

E. E. MOORE, JR.
Suite 201
175 Auburn Avenue N.E. 
Atlanta, Georgia

■CONSTANCE " BAKER MOTLE¥—  
THURGOOD MARSHALL 
Suite 1790 
10 Columbus Circle 
New York 19, N.Y.
Attorneys for Plaintiffs

(Certificate of Service attached)



ORDER ON MOTION TO DISMISS APPEAL
(Same Title - Filed March 24, 1960)

Plaintiffs have filed with this Court a motion to 
dismiss the notice of appeal filed on March 9, 1960.

The said notice of appeal takes exception to an 
order of this Court of March 9, 1960 in which this Court 
denied the motion of plaintiffs filed February 26, 1960 
seeking to obtain an order requiring the defendant Atlanta 
Board of Education to put into effect as of September 1960 
the Plan of Operation of the Atlanta Schools therein refer­
red to. Said order of March 9, 1960 reserved a decision 
on said motion, setting the same down for trial on May 9, 
1960.

The Court is in doubt as to which orders and judg­
ments of the Court are sought to be reviewed by the notice 
of appeal filed by plaintiffs on March 9, 1960, being the 
notice of appeal now sought to be withdrawn.

This Court assumes that said notice of appeal has 
reference to the Order and Judgment of this Court approving 
the Plan submitted by the defendant Atlanta Board of Educa­
tion, and also has reference to the refusal by this Court 
to order said Plan put into operation in September 1960.

It would seem that the granting of this motion to 
dismiss appeal is within the discretion of this Court, pur­
suant to 1946 Amendment to Rule 73(a), Federal Rules of 
Civil Procedure, which provides as follows:



ORDER ON MOTION TO DISMISS APPEAL 33.

"If an appeal has not been docketed, the 
parties, with the approval of the district 
court, may dismiss the appeal by stipula­
tion filed in that court, or that court 
may dismiss the appeal upon motion and 
notice by the appellant. 1
The appeal now sought to be dismissed has not been 

docketed, but although counsel for defendants have been 
given notice of this motion they have not expressly con­
sented to the dismissal of the appeal.

This Court, in exercising its discretion as to the 
dismissal of said appeal, desires to remove any uncertainty 
as to the legal effect of such dismissal for the reason 
that any uncertainty or confusion therein will not be to 
the public interest.

WHEREFORE, IT IS ORDERED that plaintiffs not later 
than thirty days from and after this date, file with this 
Court an amendment to their motion to dismiss the appeal, 
setting forth each of the orders and judgments of this 
Court which were sought to be reviewed by the notice of 
appeal filed March 9, 1960, and reciting the legal effects 
which will follow the granting by this Court of said motion 
to dismiss the appeal, particularly designating which 
previous judgments and orders of this Court, if any, will 
still be subject to any future appeal after the appeal in 
question has been dismissed.

This the 24th day of March 1960.

FRANK A. HOOPER______________
FRANK A. HOOPER
UNITED STATES DISTRICT JUDGE



34.

AMENDED MOTION TO DISMISS APPEAL 
(Same Title - Filed April 2, 1960)

Pursuant to the order of this Court entered on 
the 24th day of March I960, plaintiffs amend their motion 
to dismiss to show the following:

1. By their notice of appeal filed in this cause 
on March 9, 1960 plaintiffs intended to appeal from the 
order of this Court entered on the same date "denying their 
motion for further relief" as stated in said notice of 
appeal.

2. Upon reconsideration and in the light of the 
fact that the court set May 9th, 1960 as the date for 
hearing plaintiffs' motion for further relief, plaintiffs 
decided to withdraw the appeal and to proceed with the 
hearing on May 9, 1960.

E. E. Moore, Jr.
Suite 201
175 Auburn Avenue N.E. 
Atlanta, Georgia

Constance Baker Motley 
Thurgood Marshall 
Suite 1790 
10 Columbus Circle 
New York 19, N.Y.
Attorneys for Plaintiffs

Donald L. Hollowell 
A. T. Walden

Of Counsel
(Certificate of Service)



35.

ORDER OF COURT
(Same Title - Filed April 5, 1960)

Plaintiffs' motion to dismiss appeal filed 
March 24, 1960 is hereby granted and the appeal is dis­
missed as prayed.

This the 5th day of April, 1960.

FRANK A. HOOPER_____________
FRANK A. HOOPER
UNITED STATES DISTRICT JUDGE



36.

TRANSCRIPT OF HEARING OH JULY 5, 1962

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

VIVIAN CALHOUN, et al 
Vs

A. C. LATIMER, et al

CIVIL ACTION 
NO. 6 2 9 8

Atlanta, Georgia; July 5, 1962.

Before
Honorable FRANK A. HOOPER, Judge.

FILED IN CLERK*S OFFICE 
JUL 10 1962 

C. B. Meadows, Clerk 
BY /S/ JSW

Deputy Clerk

Appearances:
For Movants: Mrs, Constance Baker Motley

E. E. Moore, Jr.
A. T. Walden 
Donald L. Hollowell

For Respondents: A. C. Latimer
William H. Major

THE COURT: Parties ready to proceed in Calhoun
against Latimer?

MR. LATIMER: W e ’re ready, Your Honor



Hearing on July 5, 1962 37

THE COURT: All right. I believe the Plaintiff is
the one who made this motion, is it not, Mrs. Motley?

MRS. MOTLEY: Yes; it is, Your Honor.
THE COURT: All right.
MRS. MOTLEY: The Plaintiffs have made this motion

for an order setting a day certain on which to hear the 
previously filed motion for further relief. I believe our 
motion was filed on April the 30th, and we filed that motion 
with a notice to the Defendants we would bring it on for 
hearing on the 28th of May, 1962; and then it was continued 
or set by the Court for hearing on June 28, 1962. Two days 
prior to that time as I understand it, the Defendants filed 
with the Court an affidavit to the effect that Mr., Edenfield 
was ill and therefore the Defendants could not proceed with 
the hearing on the 28th of June. Now the Plaintiff's con­
tention here is that in view of the fact that the Defendants 
are represented by other able counsel, it seems to us that 
Mr. Edenfield's illness is an insufficient reason for pass­
ing a case of this importance. Mr. Latimer is one of the 
attorneys for the Defendant. He was one of the Defendants 
himself when this case was brought; when it was tried; when 
it was decided; when the Court approved the plan. And I 
notice from the orders which we have received in this case 
that the Attorney General of the State is an attorney for 
the Defendants, and a Mr, J. C. Savage is also an attorney



Hearing on July 5 , 1962 38

for the Defendants,
THE COURT: Who was that?
MRS. MOTLEY: Savage. J. C. Savage.
THE COURT: Savage. Oh, yes; City Attorney.
MRS. MOTLEY: So that it seems to us that Mr. Eden-

field’s illness is not a sufficient reason to pass this 
matter, and that the case should be set for hearing on a 
day certain within thirty days from the date on which we 
filed this motion.

THE COURT: When this matter was first presented to
me, I thought that it involved the present school year, 
1962. I found out, however, that there was no effort to 
get any change in the transfer of the placement plan for 
the fall of '62. Therefore, I put it down immediately 
following a calendar which had already been set up of two 
weeks in Rome and two weeks in Atlanta; and the date of 
June 28th seemed to be agreeable to all parties. Now it 
is true, as you say, that about two days before that hear­
ing, I was furnished with an affidavit by a Doctor Wilson 
indicating that Mr. Newell Edenfield had a very, very 
serious heart operation. You, I believe, were out of the 
city. I knew it could not be heard on that date if Mr. 
Edenfield were the leading counsel. So I thought it would 
be better to promptly notify all parties that it was off 
rather than to have any parties to come here and make an



Hearing on July 5, 1962 39.

unnecessary trip and then have it taken off. I was assum­
ing that Mr. Edenfield was in fact the leading counsel, 
and that being the case, there would be no question that 
it could not be tried on June the 28th in view of his 
serious condition. Now I believe you say in your motion 
that Mr. Edenfield in your opinion is not the leading 
counsel and that brings up another question. And I would 
be glad to hear from Respondents as to whether the presence 
of Mr. Edenfield is or is not necessary. As a matter of 
fact, I believe briefs have been filed by both sides al­
ready, is that correct?

MRS. MOTLEY: Briefs?
MR, LATIMER: No.
MRS. MOTLEY: No, sir; Your Honor.
THE COURT: They have not.
MRS, MOTLEY: I would like to say this, Your Honor,

if I may, in addition, that in our motion for further 
relief, we pointed out that the plan as approved by this 
Court was not being followed by the Defendants even as 
written. Now it is true that when I discussed the matter 
with you, I indicated that we did not expect by -- by the 
filing of a motion at the end of April, that we could get 
a new plan into effect by September. I stated that, and I 
state now that I think a new plan could not go into effect 
until September, '63; but in addition to that, we have



Hearing on July 5* 1962 4 0 .

pointed out that only nine students had been assigned to 
four high schools, I believe it is. The way we read the 
plan is that the Defendants were bound to reassign every­
body in grades 11 and 12 pursuant to the criteria of the 
plan. Now September is coming up, and the question is 
whether everybody in grades 10, 11 and 12 are going to be 
reassigned pursuant to the plan or whether these criteria 
are only going to be applied to Negroes seeking transfers 
to white schools.

THE COURT: I may say it was never intended that there
should be any difference in the criteria as between Negro or 
white people. If there's any clarification desired in that 
regard, I would be glad to make it, and I do not believe 
that there is any wording —

MRS. MOTLEY: Yes, sir.
THE COURT: —  in there that would so indicate.
MRS. MOTLEY: That's right.
THE COURT: I think it says that any person desiring a

transfer would be gauged by that -- that standard. Now 
there’s been a possible misconception of what happened in 
the case of Miss Threlkeld, I believe it was, of Northside; 
a white girl. In that case, her motion to transfer was 
denied because it was not made pursuant to the plan. Her 
motion for transfer was made expressly and intentionally 
upon the sole ground that Negroes were admitted, and that's



Hearing on July 5* 1962 4 1 .

the reason that her transfer was turned down. Any -- any 
white child has the right to transfer from one school to 
another under the terms of the plan itself, and it is not 
made discriminatory on that.

MRS. MOTLEY: Yes. Well, with respect to the continu­
ance of any child in a classroom, it’s my understanding of 
the plan as approved that these criteria are likewise to 
be applied. In other words, the criteria are not to be 
applied simply to Negroes and whites seeking transfer, but 
that the criteria of the plan were to be the basis upon 
which everybody in classes 11 and 12 were assigned to school. 
Now what has happened in effect is that everybody has been 
reassigned on the basis of race in grades 11 and 12, and 
only those persons who seek transfer and those are mainly 
Negroes, are being subjected to the criteria of the plan.
Now we say that this Circuit has already ruled on that.
The Fifth Circuit had ruled on that before this plan was 
approved in the Manning Case, where they ruled that if 
pupil assignment criteria are used as a basis for assign­
ing, that those criteria have to be applied to everybody.

THE COURT: I think that's good law. I would like
to see that case. Do you have the citation there?

MRS. MOTLEY: I believe it is 277 Federal 2nd 730.
I don't remember exactly.

THE COURT: 277 Federal 2nd.



Hearing on July 5, 1962 42

MRS. MOTLEY: It’s Manning against the Public Board
of Instruction.

THE COURT: Could you point out to me, Mrs. Motley,
any language in the plan I have approved that would seem 
to you to be discriminatory?

MRS. MOTLEY: No; I say the plan is not discriminatory.
I say they have not followed it, and I'll read the language 
which I think shows that. It's paragraph numbered one of 
the plan. It says, "In the assignment, transfer or con­
tinuance of pupils among and within or within the classroom 
and other facilities thereof, the following factors and the 
effects or result thereof shall be considered." Now they 
haven't applied that In the assignment and continuance. 
They've applied these criteria only In the transfer.

THE COURT: Now here's something very vital. I con­
strued your motion here not to be an exception to any 
clarification which the school authorities had made, but 
rather you were asking for a change in the plan itself.
Now there's two very different things, and I think we should 
clarify that. There has been no appeal to this Court by any 
Negro claiming that a transfer was refused, and not in good 
faith. Not a single one. And if this is -- if this is that 
type of a motion, then I have been under a different impres­
sion. And I -- I would say that any Negro who claims that 
plan has not been carried out In good faith would have a



Hearing on July 5, 19^2 43.

right to except and appeal to this Court. But no one has, 
so let's get it clear whether you are complaining of the 
—  of the plan itself, or if you are complaining of the 
administration of the plan? I --

MRS, MOTLEY: Well, -- excuse me, Your Honor.
THE COURT: Yes.
MRS. MOTLEY: Well, I'd like to make it clear, Your

Honor, that we're complaining that the plan approved by this 
Court is not being followed. I believe we have those alle­
gations in the motion, which I'll find at this moment.

THE COURT: Well, I would like for you to specify the
incidents where you claim the plan has been --

MRS. MOTLEY: All right.
THE COURT: -- not administered in good faith.
MRS. MOTLEY: Just a moment. If I can get the motion

Itself -- may I borrow the Clerk's copy --
THE COURT: Yes.
MRS. MOTLEY: —  Your Honor, of the original motion?
THE COURT: Yes.
MRS. MOTLEY: I believe it's beginning on Page 3,

Paragraph 9: On September 13, I960, this Court rendered
an opinion on Plaintiff's motion setting forth its reasons 
for denying same with respect to the September, i960, school 
year and granting same with respect to the September, 1961, 
school year. Thereafter, approximately nine Negro children



Hearing on July 5, 1962 44.

were assigned to the 11th or 12th grades in schools pre­
viously limited to attendance by white pupils for the 
September, 1961, school year. Paragraph 11. All other 11th 
and 12th grade pupils and all other pupils were assigned to 
schools on the basis of race. And then we go on to discuss 
the nine Negro applicants who were allowed out of the approx­
imately seventy-five Negro pupils who had applied for trans­
fer, and so forth.

THE COURT: Now what is the date that those -- all
others were allegedly improperly denied the transfer? Would 
you give me the date of that?

MRS. MOTLEY: No, it's not transfer, Your Honor. Those
who were denied transfer were the —  well, it's seventy-five 
minus eleven, about sixty-four, who were not granted trans­
fers of Negroes that applied. But Paragraph 11 says that 
all other 11th and 12th graders were assigned on the basis 
of race, whereas it is our contention that all of those 
students should have been assigned in accordance with the 
criteria of the plan and not on the basis of race. And 
then we say in Paragraph 13 that contrary to the Supreme 
Court's decision in Brown, Defendants have continued to 
maintain and operate a racially segregated school system in 
the City of Atlanta. What happens is, as we say here, that 
they've continued to maintain Negro and white schools, and 
what the Negro has here is a right to apply for admission to



Hearing on July 5, 1962 ^5.

a white school, and we say that they can't maintain white 
schools or Negro schools.

THE COURT: Mrs. Motley, we are going back now and
plowing over all the same ground that has heretofore been 
gone over. Let's take a thumbnail sketch of this case. 
First, the Plaintiffs in behalf of the Negroes contended 
that the schools of Atlanta were maintained on a discrimin­
atory basis in regard to race. This Court at the hearing 
took judicial cognizance of the fact that that was true,
I don't think there could be any -- any question about that, 
that as -- as of the time of hearing. Now no one appealed 
from the Court's ruling, and the Court ruled that it was 
being run on a discriminatory basis. Second, the question 
then arose as to a plan of transfer whereby the discrim­
ination could be eliminated over a period of time which 
would try to satisfy the ends of the law and also to prevent 
any violence or any unfortunate incidents, and also to 
adapt Itself to a very drastic and revolutionary change of 
the setup in all of those Atlanta schools. Now all of that 
was thoroughly gone into at that time, and the plan adopted 
by the Court after hearing from all parties was adopted and 
the plan apparently was acceptable to all parties, because 
your group filed an appeal, and the appeal was dismissed. 
Therefore, we must assume that as of the time the plan was 
approved by this Court and put into effect, it was a legally



Hearing on July 5, 1962 4 6 .

acceptable plan. If not, an appeal could have been con­
ducted and not dismissed. Now if —  if the school board 
authorities since that plan was adopted are administering 
the plan in an illegal way, if they are not transferring 
and assigning students on the basis of the requirements as 
laid down in that plan, then you and your group would have 
a good cause for complaint. Now you say that that is true. 
You say that it is not being administered according to the 
plan, I would think the proper procedure in that case 
would be when any Negro applied for admission or transfer 
to any school which had previously —  had been white and 
was turned down, that there should be then immediately an 
administrative appeal on it as provided and an appeal to 
this Court. And I say again that during all this period of 
time no individual Negro has come before me and made the 
statement that "my assignment to a school" or "my transfer 
from one school to another was not made in good faith."
Now I know from reading the newspapers that a great many 
have applied who were turned down. I also notice that a 
substantial number who applied have been granted. And I 
would therefore assume that since none of them have come 
before me and made the assertion that the denial of their 
applications were discriminatory, I must assume that their 
denials were in good faith. Now we know from reading the 
decisions and the newspapers that this has not happened in



Hearing on July 5> 1962 47.

other jurisdictions. I know in Virginia, Judge Bryan had 
a large number appeal to him and among those numbers who were 
turned down, a large number were appealed to him. Some of 
those he ruled with and said they should have been admitted; 
and others he ruled and said should not have been admitted. 
But that hadn't happened in Atlanta at all, and I'm just 
wondering if you -- if your attack here should not be a 
little bit more specific and not so broad and general. To 
say in a broad way the school authorities are not in good 
faith carrying out the plan, that that's shooting at some­
body with a broad gauge shotgun. But to say on the other 
hand that John Doe or Richard Roe or Mary Smith or Sara Jones 
were unlawfully turned down, that's something that the Court 
could —  could specifically try out and determine, and would 
be glad to do so if it were ever brought before me.

MRS. MOTLEY: Well, if Your Honor will recall, that
case was never brought on the theory that John Doe applied 
for admission to School X and was denied to transfer from 
School Y because of reasons —  the case you refer to in the 
Fourth Circuit, those people had applied for admission to a 
particular school, and the Fourth Circuit ruled that was 
required before they could bring any suit in the Federal 
District Court in that State. And the Fifth Circuit has 
consistently ruled that's not required in this Circuit, 
beginning with the Gibson case at Miami in 1956, and the



Hearing on July 5, 1962 48

second Gibson case, and the Holland case and the Manning 
case and the Bush case. This Circuit has never required 
the plaintiffs to apply for admission to a particular school. 
Contrary to the Fourth Circuit, they have ruled that once 
you have petitioned the board to desegregate the schools and 
they refuse to do so, you are entitled to go into a Federal 
Court to enjoin the policy of operating the schools on the 
segregated basis, Now the Fourth Circuit has only recently 
come to that position in the Green case in Norfolk, and in 
the Marsh case in Norfolk County. That is the position of 
the Fifth Circuit with respect to these criteria. They have 
now required those school authorities which use these cri­
teria to apply them to everybody and have permitted sort of 
broad class action, whereas before that didn't appear pos­
sible in the Fourth Circuit; so that we do not intend on 
this hearing for further relief or in any other to come under 
the proposition solely that the school board should have as­
signed A to School X, because that's not the kind of relief 
we ask. What we ask is an end to the policy of operating 
the schools on a segregated basis.

THE COURT: That's all been gone over, Mrs. Motley.
The Court ruled that the schools were operated on a discrim­
inatory basis and the question then involved was how should 
it be converted over from a discriminatory basis to a non- 
discriminatory basis. Now Mrs. Motley, if you will go back



Hearing on July 5, 1962 49.

and read the transcript of the hearing, at one point in there 
I asked you this question —  and I will not attempt to use 
the exact language -- but I said, "Mrs. Motley, do you con­
tend that this conversion over to a non-discriminatory basis 
should be instantaneous, wholesale, and in all grades, and 
do you realize the unfortunate results that would follow," 
and you did not in answer to that question say, "Yes, we are 
asking that it be done wholesale and immediately." You did 
not take the position that it should be done in that way.

MRS. MOTLEY: We are still not taking that position.
We —

THE COURT: We are all --
MRS. MOTLEY: Sorry.
THE COURT: We are all here trying to work out a plan

whereby there would be deliberate speed, whereby it would be 
done as quickly as could reasonably be done, and that there 
should be sufficient deliberateness so as not to cause a —  
direful consequences. And I want to say that the attitude 
of the city authorities and the people of Atlanta and of 
both races in my opinion has been -- has been magnificent; 
and the plan has been commended by the people in the press 
all over the country, and I had thought that things were in 
a very desirable status. Now I want to say this. If you 
have any proof that the plan is being unfairly administered, 
that Negroes are being turned down on discriminatory bases,



Hearing on July 5, 1962 50.

I will set that down and we'll have a full scale hearing on 
that point; but you'll have to be more specific than you 
have been. You will have to name instances in which dis­
crimination is alleged to have been made. I don't believe 
the Board of Education could answer a broad charge that 
"You are discriminating." That —  and if you —  if you have 
-- if you have evidence to show any instance of discrimina­
tion under all the rules of all the district courts in the 
United States by way of pretrial and definite statement, et 
cetera, every Defendant is entitled to know the details of 
the charges and contentions made against him. Now if you'll 
do that, if you will -- if you will elaborate, any incident 
of discrimination and file it with this Court, then I will 
—  I will put that down for just as quick a hearing as it's 
possible to do it.

MRS. MOTLEY: Well, Your Honor, I don't know what we
can say other than what we've already said in this motion, 
that all other 11th and 12th graders were assigned on the 
basis of race except the nine who were admitted to white 
schools, as we say here. The seventy-five others were de­
nied admission. We also then say that contrary to the Brown 
decision, they've continued to maintain separate school sys­
tems, and on this hearing on the 28th of June, we expected - 
we subpoenaed the Superintendent of Schools, the Chairman of 
the Board, and the Supervisor of Negro Schools. And we are



Hearing on July 5, 1962 51.

quite prepared to show that everybody else was assigned on 
the basis of race in Grades 11 and 12. Now we don't con­
ceive of this as a transfer plan. As I said initially, the 
way we understand the plan is that everybody in Grades 11 and 
12 were to be reassigned on a non-racial basis, and we say 
that has not been done. What they have done is to permit 
Negroes to transfer to white schools and then to those 
Negroes they have applied the criteria of the plan, and we 
say that cannot be done; that this plan as written, if it 
were carried out, would have resulted in substantial desegre­
gation in Grades 11 and 12. Well, they haven't done that, 
and that’s not wholesale desegregation, and will not —

THE COURT: Well, let's —  pardon me; I —  I just want
to make this observation. There's only two classes of stu­
dents that apply to the Atlanta Public Schools for admission. 
First is a student who was in the public schools last year. 
Second is a pupil who comes in here that was not in the pub­
lic schools last year. Now we do not start out with the as­
sumption that every child in every school has got to be 
changed. If a child was in School A last year, he would 
presumptively stay in that same school unless he or she 
claimed that they should properly under the plan be in 
School B. In that event, they would apply for admission 
into School B, and would be entitled to be admitted in School 
B if his or her residence and educational qualifications and



Hearing on July 5, 1962 52.

those things in there were correct. Now as to a new student 
coming in, moving in from out of the city, that would not be 
a question of transfer. It would be a question of —  of 
which school they should go into to begin with and the same 
criteria would apply to that student. They would apply for 
admission to a particular school, and if qualified, and 
without any discrimination, he or she would be admitted to 
the school to which they applied. Now all of that must, of 
course, be done without discrimination, and it is all done, 
as I see it, in order to gradually eliminate the discrimina­
tion which you charged in your original case, and in which 
this Court found did exist. I don't know whether you and I 
are thinking in the same realm at all, or not. Now the plan 
which this Court approved and to which no appeal was made 
must be considered as being a valid plan as of the date it 
was made and ordered. And I say again, if you -- if you 
claim these Respondents are not in good faith carrying out 
the plan, then you are entitled to be heard on it. But I 
still have not gotten from you a clear statement as to any 
colored person who has made an application pursuant to the 
plan and has been turned down unlawfully or not in good 
faith, and I think you ought to be able to name just one in­
stance of bad faith.

MRS. MOTLEY: Well, we've got sixty-four, Your Honor.
THE COURT: Now, when did those --



Hearing on July 5, 1962 53.

MRS. MOTLEY: We allege that seventy-five Negroes

applied.
THE COURT: Now that's a broad statement. When did

those sixty-four —
MRS. MOTLEY: In May, 1961, I think it was.
THE COURT: All right. That's a year ago.
MRS. MOTLEY: That's right.
THE COURT: All right, why did not any one of those

sixty-four come into this Court and say that we were denied 
our rights?

MRS, MOTLEY: Because they have been exhausting that
so-called administrative remedy provided under the plan.

THE COURT: All right. That's fourteen months ago,
and the total overall time under that —  under that plan was 
from May till September, which is five months.

MRS. MOTLEY: Well, we plan to show exactly what hap­
pened with respect to those sixty-four applications, Your 
Honor, on this hearing.

THE COURT: All right. Now that's exactly what I'm
coming to.

MRS. MOTLEY: Yes, sir.
THE COURT: You have got the right to show that as to

any one of those sixty-four who you claim were discriminated 
against. But that's not what you set up in this motion.

MRS. MOTLEY: We also plan to show that all of the



Hearing on July 5, 19 6 2 5 4 .

students in Grades 11 and 12 were assigned on the basis of 
race; and that number -- I don't know the exact number, but 
it’s certainly a great deal more than sixty-four or seventy- 
five in Grades 11 and 12 of the Atlanta Public School System.

THE COURT: Now here's what I'm trying to say to you,
that the case you state now is not the case you have set up 
in this paper you have filed unless it is stated so broadly 
that I could not myself divine what you were contending; and 
I want to say this. You have a perfect right, if you'll be 
specific and come into this Court in behalf of any one single 
Negro who claims he is not being fairly treated under this 
plan, to a full hearing on it, and a decision by this Court 
as soon as it can -- can possibly be made.

MRS. MOTLEY: Well, Judge Hooper, as I said a moment
ago, we do not intend to get ourselves Involved in the situ­
ation which has been the situation in the Fourth Circuit.
We do not intend to come in here to have the Court pass on 
every Negro in the City of Atlanta or every white person.
We don't think that's the function of the Court. And all 
we plan to show is that there has been continued discrimina­
tion, and what we plan to ask for is a reorganization of the 
school system on some non-racial basis, and that —  the dis­
continuance of the policy of assignment of people on the 
basis of race and maintaining white schools as we prayed for 
in this motion. And we are not going to come in here and say



Hearing on July 5, 1962 55.

we should have been in School X, Y, Z and that’s all we want. 
That is not what we want. We want everybody assigned on a 
non-racial basis.

THE COURT: Mrs. Motley, what you are saying in effect
is this, that the Atlanta school authorities unfairly treated 
sixty-four, but you will not point out one of the sixty-four 
and prove that one was discriminated against. But you are 
going to make a package deal out of it. Here's what I'm 
trying to say to you. If sixty-four were —  were ruled not 
eligible for transfer according to the plan, it would seem 
to me that you could prove that at least one of those sixty- 
four was entitled to transfer, and in bad faith were denied 
transfer. Unless you are attacking the plan in toto, which 
as I said a moment ago is something that's already been 
tried out and approved and to which no —  no exception is 
made. Now I want to know whether you are trying to re-open 
the old case and try it over again.

MRS. MOTLEY: No, sir; as I understand it, the Court
has retained jurisdiction of this case,

THE COURT: I retained jurisdiction to see that the
plan as approved then by this Court was carried out in good 
faith, and I say again, if there is any one Instance where 
the plan was not carried out in good faith, someone should 
come here and point out to me the name of one person who 
has been discriminated against. But you don't do that. You



Hearing on July 5, 1962 56.

say, "We will not point out one; we point out sixty-four."
Now some have been transferred and found meritorious; and 
some have been found not. And I just don't know any way to 
approach this thing except to hear evidence on this issue 
as to whether any single Negro was denied illegally, and if 
you can't show that one was illegally denied, I don't see 
how you can show sixty^four were illegally denied.

MRS. MOTLEY: Well, I think the Court misunderstands me
I didn't mean to suggest that we couldn't show that one had 
been denied illegally. What I intended to say is that we 
intend to show a pattern with respect to the sixty-four. Now 
as far as I'm concerned, and I would argue this on appeal, 
that the admission of nine Negroes in schools in Atlanta was 
not desegregation as we argued in the Memphis case, and as 
the Sixth Circuit ruled; that on its face says there has 
been no desegregation. Now all I’m going to do on this hear­
ing is to show, as I say, that sixty -- seventy-five Negroes 
applied and of that number, nine were transferred.

THE COURT: All right.
MRS. MOTLEY: Standards were applied to them which were

not applied to whites, and that the sixty-four denied admis­
sion were denied admission because they didn't meet certain 
aptitudes —  aptitude tests, whereas there are whites in that 
school that didn't meet it either, but they are there; and 
that's what I mean by showing the case of these sixty-four.



Hearing on July 5, 1962 57.

And then as I've said at least three or four times already, 
we will show that everybody else in Grades 11 and 12 had 
been assigned on the basis of race, and we construe that as 
contrary to the wording of this plan. Moreover, on the fur­
ther relief point, in addition to showing that the plan has 
not been operating as was intended to operate, in our further 
relief matter, you know, that we allege that the teachers 
have been assigned on the basis of race, which is in our 
view clear evidence of the continuing policy of racial segre­
gation in the public school system. And we intend to show 
that on this hearing.

THE COURT: Well, I'm frank to say that had you —  had 
this matter been tried on the day it was set, June 28th, I 
would have gone into the hearing under a complete misappre­
hension of what you were claiming and I imagine that the 
Defendants would too. Now I won't try to speak for them, 
but I'll say that —  that I had no idea that —  that the 
contentions set out there are what you are making here today.

MRS. MOTLEY: Well, I think —  excuse me, Your Honor.
THE COURT: I'll hear from the Defendants, and I'll say

again that I will put this matter down —  I could put it 
down almost immediately, if parties are ready on all the 
issues, and if Mr. Edenfield's severe sickness does not —  
does not prevent it, and I've got to hear from the Defend­
ants as to who is the leading Counsel in the case.



Hearing on July 5, 1962 58.

MR. LATIMER: May it please the Court, on the question
of as to who is leading Counsel, I will state in my place 
that I do not know that any positive designation was made 
except that when Mr. Edenfield became ill and had to be 
operated on, I went to Mr. Savage —

MRS. MOTLEY: Excuse me, Your Honor, I can't hear
Mr. Latimer. If he could stand over here, please, I may be 
able to hear him.

MR. LATIMER: I will speak a little louder. I rather
stand here, if you don't mind. I went to Mr. Savage, who is 
the City Attorney, and asked him about the -- who should 
try this case on June the 28th, Mr. Savage, who is my 
employer as far as being associated with the City Attorney 
is concerned, advised me that it was Mr. Edenfield's case; 
that he had been —  tried the case before; that it was a 
matter of importance to the City and the school people, and 
that he wanted Mr. Edenfield to try it; and if he was unable 
to do so on the 28th of June, that I should seek a continu­
ance of this case, based on the fact that Mr, Edenfield was 
unable to appear. Now I came over, if Your Honor will re­
call it, at a recess in which you were trying a libel suit, 
and reported to the Court that it had come to my attention 
Mr. Edenfield was sick, which I had knowledge of for some 
days but that I did not know the extent of his illness, be­
cause there had been a second operation performed, and that



Hearing on July 5, 1962 59.

it was my opinion, based on conversations which I had had 
with his office, and they in turn had been in contact with 
his doctors, that he would be unable to try this case on the 
28th of June, and I said, "I have reported that to Your 
Honor." And you suggested that I formalize what I had re­
ported orally and obtain an affidavit from the doctor. That 
took several days to do, and in the meantime, I state in my 
place that I called Mr. E, E. Moore, if I called him once 
I've called him ten times, in order to report to him what I 
was doing. I did not think it was necessary to call Mrs. 
Motley in New York. But I reported constantly what -- or 
tried to report constantly to Mr. Moore. Last Tuesday a 
week back, I was at a meeting in which Mr. Moore appeared, 
and I asked the former president of the local chapter of the 
NAACP if he could get Mr. Moore to consult with me; I had 
something of importance to tell him. I got with Mr. Moore 
and informed him that the case would not be heard on the 
28th if our motion was -- for continuance were granted by 
the Court, and that the Court had indicated it would be 
granted. Now nothing has been done insofar as I am concerned 
to delay this action, I have done everything I know how to 
do by seeking conferences and trying to communicate with 
Mr. Moore to advise him of the situation.

Now Mr. Edenfield is the leading Counsel in this case. 
He is unable to try this case until sometime after August



Hearing on July 5, 1962 60.

the 1st.
Now, Your Honor, as to the merits of this case, I’m not 

prepared today to argue them except to say this, I don't 
know of a people or community or city or a school administra­
tion that has in better faith tried to follow in spirit as 
well as in fact the letter and the spirit of the order of 
this Court, and to just broadside charge that we are still 
carrying on -- that is, the Atlanta Public School System is 
still carrying on a bi-racial system in defiance of this 
Court order is too broad, and we are prepared and will meet 
when this matter is heard, to show the Court that in —  even 
in details such as the school directory, we've deleted all 
reference to white teachers, Negro teachers, white schools, 
Negro schools in such matters that come before the Board. 
There's not any reference to this being a white school or 
this being a Negro school. Now where the Plaintiffs get 
that idea, I don't know. It may be from a local paper where 
they refer to a white school or a Negro school. That is not 
State action. That is not the action of the Atlanta School 
Board.

But I would say, Your Honor, without taking up any more 
time, that Mr. Edenfield is leading Counsel in this case, and 
the —  if the Court sees fit to put us on trial, why I'll 
handle the matter and do It to the best of my ability. But 
that is the situation.



Hearing on July 5, 1962 6 1 .

THE COURT: Mr. Latimer, I would say that you or Mr.
Edenfield would -- would be the leading Counsel. Certainly 
it would be between the two of you, would it not?

MR. LATIMER: Yes, sir.
THE COURT: You have been president of the Board of

Education; you have been in this case ever since it started.
MR, LATIMER: As a party till --
THE COURT: As a party and also as Counsel.
MR. LATIMER: Yes, sir.
THE COURT: Now you have retired from the Board of

Education, and you are now a lawyer in the case.
MR, LATIMER: Yes, sir,
THE COURT: Would you —  would you state in your place

what issues you contemplated were to be heard on this case 
on June the 28th?

MR. LATIMER: Well, Your Honor, it's pretty much in
that motion. The motion as I read it and as filed is -- not 
the motion for continuance, but motion for further relief 
that we assign the teachers, principals and other profes­
sional school personnel on the basis of race and color; and 
they complain we have continued to designate schools as Negro 
and white, and meticulously we’ve tried to avoid that. It 
complains about racially segregated extra-curricular school 
activities, and they complain about continuing to maintain 
a dual school system, and area attendance lines and such.



Hearing on July 5, 1962 62

Now they go on on their motion to give more or less a history 
of this case, but in no instance as I have read their motion
do they charge that Tom Jones or Mary Doe, Negro or white,
have been discriminated against and -- or that their consti­
tutional rights have been impaired. Now our idea of how to 
meet this was just on a factual situation; that in no in­
stance have we knowingly or intentionally discriminated 
against any of the Plaintiffs in this case or any other
Negro child in the system. Now the reason I say Your Honor,
and want to bear down on this, that we were to —  going to 
try to meet this on a factual situation is simply what has 
already been pointed out by the Court in terms much better 
than I could state it, that insofar as this Court approved 
plan is concerned, that was unappealed from by both parties, 
and it would seem to me to be the law of this case now cer­
tainly, that they or any other plaintiffs in an equity case 
such as this where the Court retains jurisdiction, can come 
back in and make a proper motion for further relief and say, 
"Now this plan is not being followed. It's been violated." 
But it would seem to me that they should say, "It's been 
violated in the following particulars," and that does give 
the school people a little something better to shoot at.
But to answer your question, Your Honor, and quit rambling, 
my thought was to meet it on the basis of a factual situation 
to show that we have not discriminated and we are not prac-



Hearing on July 5* 1962 63.

ticing segregation in the City of Atlanta.
THE COURT: Now Mr. Latimer, I can say that this Court

has never purposely delayed any of these hearings since the 
original case was filed, and the Plaintiffs were given 
rather prompt action, and discrimination was outlawed in 
this case before a lot of cases pending in other "cases" 
were ever gotten to a trial. I think -- I don't think any­
body can say that there's ever been any disposition in any 
of these cases by this Court to delay it. I'm going to have 
to put a little burden on you as one of the lawyers in this 
case, in view of Mr. Edenfield's severe sickness, to acquaint 
yourself with these issues and maybe to see that this case 
moves along even during Mr. Edenfield's sickness. I would 
not rush the parties in the trial of the case with one —  
when one lawyer is severely ill, -- I'm afraid he is 
severely 1 1 1, -- I certainly trust it's not anything criti­
cal -- and throw the trial on another lawyer when the lawyer 
says that he has not so actively participated in it in the 
recent stages that he can safely go to trial. So I'm going 
to have to do everything possible to clarify these issues 
and let both sides get the evidence and bring this case to 
as early a decision as possible to do so. Now in all frank­
ness, I must say that if in the summer of 1961, as stated, 
a large number of Negroes were illegally turned down, I still 
think that Plaintiffs themselves could have moved with a



Hearing on July 5, 1962 6 4 .

great deal more dispatch; could have complained of the de­
nial of these sixty-four over a year ago and brought it to 
the attention of this Court and not wait fourteen months or 
so, --

MR. LATIMER: Your Honor, may I interrupt there?
THE COURT: —  to do so.
MR. LATIMER: We have —  the Atlanta Board of Educa­

tion some, I think many months ago, and best of my recollec­
tion sometime back in 1961, made a motion and passed it as a 
part of the official record that they were ready, willing 
and able to hear the appeal of these persons denied transfer 
by the superintendent, and that Counsel for the Plaintiffs, 
the Negro Plaintiffs and for the Board of Education were to 
get together and set a time and place convenient to both of 
them, and the Board would meet and hear it, and preferably 
on Saturday, because they are business people, and that would 
not take up a business day. And that's been communicated 
with Mr. Moore, and there's an implication here we've put 
this thing off and dragged our feet. You may recall, Your 
Honor, from reading the paper, the sixty-odd who were denied 
transfer appealed their case to the State Board of Education. 
The State Board of Education sent it back to the Atlanta 
Board of Education saying, "You haven't given us enough in­
formation of why you denied the transfer, so that we could 
Intelligently make a decision. Therefore, we urge that you



Hearing on July 5, 1962 65.

give the reasons for the denial." I think they acted prop­
erly. Now in each one of those instances, they took each 
file as an individual situation and gave that applicant 
the reason his or her transfer application was denied. Now 
the next step under your plan was for the Plaintiff to ap­
peal the decision of the superintendent denying the transfer 
to the Board, and from the Board to the State Board of Edu­
cation, as provided by law, and then to this Court; and I’ll 
say this, that the Atlanta Board of Education has been ready, 
willing and able to do that, for the past eighteen months.

Now Judge Hooper, if I may make a little personal 
reference here. I have tried for the Atlanta School System 
more cases this year than have been tried I would say in the 
last ten years; condemnation cases; cases in South Georgia; 
cases in this Court and everywhere else, I was on my vaca­
tion and came back for this motion this morning. I have 
many other things involving the City and my own private 
practice I will have to do between now and the rest of the 
summer. But if it’s to the interest of justice and if this 
Court wants to do it, I ’ll take the case over and will try 
it any day the Judge puts it down0 My personal "druthers" 
or my personal preference is that Mr. Edenfield, having been 
leading Counsel in this matter since January, '58, and this 
is now July the 5th, if no rights will be prejudiced in the 
meantime, that if we could try it sometime in early August,



Hearing on July 5, 1962 66 .

that would be my preference.
THE COURT: Well, here's what I'm anxious to do, and

had these Plaintiffs moved sooner, there wouldn't have been 
any problem. I'm anxious to hear the question fully on all 
matters of law and fact, and make a ruling so that the 
Movants, if I should rule against them, or the School Board 
if I rule against them, either way, would have an opportunity 
to go to the Fifth Circuit Court of Appeals and get a ruling 
on it before May, 1963. Now it seems quite clear to me that 
this matter was not brought with a view of any change in the 
general policies as of the coming fall term. That's very 
clear because it was -- it was not brought until the time for 
the applications for the fall of '62 to be filed and passed 
on. All that's been done. It is -- it is important for the 
Plaintiffs to get a ruling from this Court in ample time for 
either side to appeal to the Court of Appeals and have that 
appeal decided by the time that transfers will be filed or 
applications will be filed for the session opening September, 

1963.
MR. LATIMER: Yes, sir. And Your Honor, there's ample

time as you know to get that appeal entered and approved and 
heard before May 1 -- May 15th of 1963. I mean, I can't see 
where, between now and the first week or so of August that 
that would be any fatal length of time insofar as an appeal
is concerned.



Hearing on July 5, 1962 67.

THE COURT: Well, now, I'm going to suggest this to
you, since there's a great deal of confusion here, at least 
in my own mind about the issues that were to be tried, that 
you immediately propound interrogatories to the Plaintiff on 
the questions brought out here this morning, and I'll take 
the transcript of this hearing today as to Plaintiffs' con­
tentions as to which you need not propound any further inter­
rogatories; but if there is any question in your mind as to 
any -- any specifics, I think you would be entitled to be 
apprised as to what type of evidence you are to meet; and 
as soon as the issues here can be clarified and the parties 
have an opportunity to meet it, a hearing -- I'll put this 
down for a hearing as soon as I'm so advised,, And if there 
should be any dragging of feet, of course, I would have to 
do it sooner than that. But I say again, I don't want to 
keep repeating this, but I say again that what seems very 
vital to me is, were any of these sixty-four who were turned 
down last year, a year ago, unlawfully turned down. Now —

MR. LATIMER: Your Honor, may I interrupt?
THE COURT: —  you take --
MR. LATIMER: Only thirty-five or thirty-eight --
MR, MOORE: Eight.
MR, LATIMER: —  appealed to the State School Board,

She keeps talking about Seventy-five. Now of those, and 
I'm quoting this from memory now and I could be in error,



Hearing on July 5, 1962 68 .

but this is substantially correct; approximately half of 
those have already graduated and it would certainly be moot 
as to them. You see, the first year, Your Honor, was twelve 
and eleven, but because of the rulings of this Court, de­
layed it until such time as the Sibley Commission and also 
the Legislature could act one way or the other; we took two 
steps, two grades the first year, if you*11 recall twelve 
and eleven, Now a substantial number of those children 
were twelfth graders and have graduated, you see. So you’ve 
got a moot question as to approximately half of your thirty- 
odd, and —

THE COURT: And the rest of them will be graduated by
the end of this coming year.

MR. LATIMER: Yes, sir; by '63, if they pass the grades
and passed all their tests, and if so, you have got the whole 
thing washed out.

THE COURT: Well, that shows the importance of applying
to this Court immediately when turned down.

MR. LATIMER: Yes, sir.
THE COURT; If they were turned down in the summer of 

1962 and immediately appealed to this Court, and if the Court 
found that they were illegally turned down, they would -- 
they could have been admitted at this time.

MR. LATIMER: Yes, sir.
THE COURT: I think there's been some delay here in --



Hearing on July 5, 1962 69

in moving in behalf of these individuals.
MR. LATIMER: Your Honor, I'll do whatever the Court

wants me to. As I say, I would very much prefer, as would 
the City Attorney, that Mr. Edenfield be allowed to continue 
as chief, or in chief, in the trial of this case, having done 
it since '58; but if there are any rights involved that -- 
any matters that are urgent, any rights that would be cut off 
by a delay, why I'll undertake to do whatever Is necessary.

THE COURT: Well, I'm going to ask that you, and with
the assistance of the Attorney General, Mr. Cook --

MR. LATIMER: He's not in this case, Your Honor.
THE COURT: He's not?
MR. LATIMER: I don't know how his name got on there,

but Mr. Cook has meticulously stayed out of this matter, and 
is not a party to it, and how his name got on this notice I 
don't know. Possibly the only thing I could think of is that 
the records now show that because of the Melkild case.
That's the child --

THE COURT: Yes, sir.
MR. LATIMER: -- at Northside that the Atlanta Board

denied her application for transfer because It was based on 
the question of race. He was a party to that cause, but 
that came in collaterally and has nothing to do with the 
main Issues here. So Mr. Cook Is not involved In this case.

THE COURT: Well, do you feel from your knowledge of



Hearing on July 5> 1962 70.

the case that you have sufficient evidence to proceed if 
this matter should be put down for a very early hearing?

MR. LATIMER: Yes, sir; I'm familiar with it as the
palm of my hand. I haven't handled the legal end of it from 
'58 to >6l. I was a party as the President of the Board of 
Education, and since that time have been Involved in the 
case. But Mr. Edenfield went on and continued as leading 
Counsel, and I ’ve assisted him with the facts any way I 
could.

THE COURT: Well, what do you feel would be the ear­
liest date at which you could go to trial?

MR. LATIMER: Well, as I say, I was on my vacation.
I can cut that out, but I would like to have a couple or 
three weeks.

THE COURT: How much?
MR. LATIMER: Two or three weeks.
THE COURT: Well, I think that's a reasonable time.
MR, LATIMER: And Judge, two or three weeks, that's

about the time Mr. Edenfield will be back.
THE COURT: I'd like for you to finish your vacation,

but that may --
MR. LATIMER: I didn't have one for twelve years, Your

Honor, so I'm sort of used to not having them, but --
THE COURT: Mr, Latimer, is it your information that 

Mr. Edenfield will be available by August 1st?



Hearing on July 5, 1962 71.

MR. LATIMER: The doctor's affidavit as I recall it,
Your Honor, says, the last paragraph, that Doctor Wilson 
said, "It is the opinion of the deponent that by reason of 
the aforesaid surgical procedures the said Newell Edenfield 
will be physically unable to make any court appearances until 
sometime after August 1st," which I assume would be August 
2, 3} or anywhere along that line. Now Mr. Edenfield is 
at home, but he's been told to remain In bed, as I understand 
it, for the next couple of weeks except to get up around the 
house.

THE COURT: We11, I do not see how there would be any
harm done to anyone by putting this down the early part of 
August. It certainly would allow ample time for a decision 
and an appeal before the next school year. And I say again, 
that the motion could have been made any time from September, 
1962, up until the time it was made about May, 1963, or April 
30, 1963. So I do not think that anyone will be hurt by 
putting it down. I'll put it down on Thursday -- I'll just 
tentatively inquire if Thursday, August the 2nd, would suit 
your convenience, and -- you and your associates, Mrs.
Motley?

MRS. MOTLEY: Yes, it will, Your Honor.
THE COURT: I don't know of any conflicts at this time. 

I'll put it down for that date and check up and see if there 
are any conflicts. I'll say this Court has not planned for



Hearing on July 5, 1962 72.

any vacation, but that isn't so important. I'll put it down 
tentatively as of that date, August the 2nd, on Thursday, 

Close the Court until further order.
(Whereupon, Court was closed at 10:40 a.m.)

End of Transcript 
* * * * * * * * *

UNITED STATES OF AMERICA 
NORTHERN DISTRICT OF GEORGIA

I, James G. Pugh, Official Court Reporter of the United 
States District Court for the Northern District of Georgia, 
do hereby certify that the foregoing 37 pages contain a true 
transcript of proceedings had before the said Court held in 
the City of Atlanta, Georgia, in the matter herein stated.

In testimony whereof I hereunto set my hand on this 
the 10th day of July, 1962,

/S/ JAMES G„ PUGH________
Official Court Reporter 
Northern District of Georgia



73.

TRANSCRIPT OF HEARING ON DECEMBER lb, 1959

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

Vivian Calhoun, 
Vs

A. C. Latimer,

et al

et al

CIVIL ACTION 
NO. 6 2 9 8

Atlanta, Georgia; December 14, 1959.

Before Honorable FRANK A. HOOPER, Judge

FILED IN CLERK’S OFFICE 
April 7, i960 

C. B. Meadows, Clerk 
By /S/ R.M.S.

Deputy Clerk

Appearances:
For Plaintiff: Mrs. Constance Baker Motley

E. E. Moore, Jr.
A. T. Walden

For Defendant: B. D. Murphy
Newell Edenfield



Hearing on December 14, 1959 74.

THE COURT: You may proceed for the Plaintiff. I
suppose Counsel are somewhat in doubt as to which side 
should first proceed. I suppose the first thing to take up 
would be the objections offered by the Plaintiffs to the 
plan which has been filed by the Defendants. Is that cor­
rect?

MRS. MOTLEY: Well, we had assumed, Your Honor, that
the Defendant would proceed and support their plan, and then 
we would present our objections.

THE COURT: I will ask the Defendants if they wish to
file anything further. They have filed a plan, and I will 
ask the Defendants if they would like to make any further 
statement?

MR. MURPHY: Not at this time, Your Honor. We have
filed our plan in accordance with the order of the Court 
and we think in conformity with the order of the Court.

THE COURT: Very well. I will hear the objections
by the Plaintiffs to the plan which has been filed.

MRS. MOTLEY: May it please the Court, we have filed
our objections to the plan in writing, and I believe that 
they arrived sometime on Saturday, and I don't know whether 
the Court has had an opportunity to read our objections and 
a brief which we filed in support thereof. And along with 
our plan, Your Honor, we also furnished the Court a copy of 
the opinion of the Fifth Circuit in the case of Gibson



Hearing on December 14, 1959 75.

against The Board of Public Instruction of Dade County, 
which we think bears upon this case. The reason we fur­
nished a copy is because we had not been able to find that 
that case had been reported; and so we undertook to have a 
copy of it reproduced and furnished to the Court and Counsel 
for the Defendants. Now our first objection to the plan, 
Your Honor, is that the plan is incomplete in that it does 
not comply with the order of this Court. As we understood 
the order of this Court, the Court not only enjoined the 
Defendants from discriminating against Negro students with 
respect to admission to a particular school, but also en­
joined the Defendants from continuing to operate the school 
system on a racially segregated basis. We feel that the 
plan which has been submitted deals only with the first as­
pect which I referred to, and that is the assignment of 
pupils. There has been no plan presented which attempts to 
deal with the designation of certain schools as Negro and 
White; the assignment of teachers, principals and other 
school personnel; or the operation of many parts of the 
school program on a wholly segregated basis. Your Honor may 
recall the minutes which we introduced on the trial of this 
case which show for example that there is a national science 
program in which the high schools were participating which 
was operated on a segregated basis. That there were other 
features of the school program itself which were operated



Hearing on December 14, 1959 76.

on a wholly segregated basis. And the plan makes no attempt 
to deal with this. The plan simply provides the criteria 
whereby students may seek initial assignment or transfer 
between schools. Our second objection to the plan is that 
it avoids the duty imposed by the Defendants to desegregate. 
At the trial of this case, we emphasized to the Court the 
decision of the United States Supreme Court in the case of 
Cooper against Aaron, in which the Court reviewed again its 
holding in the Brown Case, particularly its holding of 1955 
with respect to its instruction to the lower Federal Courts 
in these cases, and pointed out that as a result of those 
decisions, State authorities were under a duty to initiate 
desegregation and to bring about full compliance with that 
decision. Accordingly in the Gibson Case to which I re­
ferred a moment ago, the Fifth Circuit there has likewise 
held that as a result of its decision in the first Gibson 
Case, school authorities had a primary and positive duty to 
comply with the May 17, 195^, decision of the Supreme Court. 
But the plan which has been presented here doesn't require 
the Defendants to do anything. The status quo is maintained 
and again any negro who would like to escape the segregated 
school may come forward and try to transfer to a white school. 
And this we say does not meet the requirements of the Supreme 
Court's decision of May 17, 1954, to desegregate the public 
schools. Now our third objection to the plan is that the



Hearing on December 14, 1959 77.

inherent delays embodied in this plan make a prompt and 
reasonable start impossible. In the Supreme Court's de­
cision of 1955, the Court pointed out that the Federal 
District Courts may take into consideration the personal 
and public interest involved in any particular case. De­
spite this, however, they said that the Federal District 
Courts must nevertheless require a prompt and reasonable 
start toward desegregation. Now the plan as we see it 
makes a prompt and reasonable start impossible. It under­
takes to establish a number of criteria for the admission 
of children to school now as against a very simple criteria 
which is presently in existence, The only criteria as we 
understand It now according to testimony on the trial was 
proximity to the school. And In some cases, transfers at 
the request of parents were granted. Now as against that 
very simple criteria for admission to the schools, we now 
have this plan which embodies at least twenty-four criteria 
as I see it, many of which are vague and indefinite, and at 
least two of which are unconstitutional on their face.

THE COURT: Which two is that?
MRS, MOTLEY: That is the one that has to do with

breaches of the peace--the first one is the possibility of 
threat of friction or disorder among pupils or others; the 
second is the possibility of breaches of the peace or ill 
will or economic retaliation within the community.



Hearing on December 14, 1959 78

THE COURT: I would like to ask, Mrs. Motley, whether
those two features there were or were not included in the 
Alabama law?

MRS. MOTLEY: Yes, sir, they were included in the law.
THE COURT: And were they not approved by the Supreme

Court?
MRS. MOTLEY: No, sir, As I understand Judge Rives'

opinion in the Gibson Case, he points out that he did not 
pass on any parts or sections of the Alabama law separately; 
that he passed on the law as a whole as against the challenge 
that the law as a whole on its face discriminated against 
negroes. And he said that obviously the law as a whole on 
its face did not discriminate against negroes.

THE COURT: Outside of those two features, there is—
you think there are no other requirements in the Alabama 
law which would be unconstitutional?

MRS. MOTLEY: Yes, I think the others— there are six
others which I think are unconstitutional as a denial of 
due process and those are set forth in our brief on page 
twelve. I think that the Fifth Circuit has already passed 
upon this in the Bush Case. This case has been there a 
number of times but I think on this appeal of the Bush Case 
there was involved the Louisiana Pupil Assignment Law which 
established no standards whatsoever for the assignment of 
pupils to particular schools. And in that case the Fifth



Hearing on December 14, 1959 79.

Circuit said this: Attempts by statute to give any official
the power to assign students to school arbitrarily accord­
ing to whim or caprice are legally impermissible, especially 
if considered in light of the history of assignments made 
in a manner that has now been held to be unconstitutional 
and of the recently readopted requirement of the State Con­
stitution reaffirming such unconstitutional standards which 
is reenforced by the heavy sanctions against any official 
permitting a departure therefrom contained in a companion 
statute. Now there they have made clear that statutes which 
are vague and indefinite and therefore permit of an assign­
ment according to whim or caprice would be unconstitutional, 
especially in a case of this kind where the assignments were 
previously made on a nonconstitutional basis or a basis now 
declared to be unconstitutional. And I think that this is 
well established in our law. I refer in our briefs to the 
case of Yick Wo against Hopkins where the Supreme Court there 
pointed out that no right can be made dependent upon the 
mere whim or caprice of a state official.

THE COURT: Now I would be glad if you would point out 
the provisions in the plan which you say are too vague,

MRS, MOTLEY: Yes, sir, I'll do that. Now the first
one is the psychological qualifications of the student for 
the type of teaching and associations involved. The second 
is the psychological effect upon the pupil of attendance at



Hearing on December 16, 1959 80.

particular schools--at a particular school. The third is 
the home environment of the pupil. Fourth, the maintenance 
or severance of established social and psychological relation­
ships with other pupils and with teachers. And fifth, the 
ability to accept or conform to new and different educational 
environment. And sixth, the morals, conducts, health and 
personal standards of the pupil. Now all of these attempts, 
which involve psychological considerations, are far too 
nebulous to be objectively determined, and it!s clear that 
these criteria are all subject to varying interpretations 
as to what psychological effect the admission of a child to 
a particular school would have. That's wholly within the 
area of speculation. I don't think anyone could determine 
what effect psychologically admission would have on a child. 
Sometimes you may think that the child will be adversely 
affected psychologically; and on the other hand the child 
may not be because psychological factors are too difficult 
to weigh and determine and it's impossible to determine in 
any situation what a psychological effect will be on a par­
ticular individual.

THE COURT: Let me ask you two questions on that.
First, whether or not the District Court Judge Bryan in 
Virginia in a certain case did not deal with those factors 
regarding a large number of individual students? And whether 
he did not review the action of the school authorities and



Hearing on December 14, 1959 81.

admit some and reject some? And whether or not that deter­
mination was not carried up and reviewed by a Circuit Court 
of Appeals? And whether or not in that case there was any 
contention made that the tests therein laid down were il­
legal? If I am not in error, they were tried on the basis 
of whether or not his individual judgments on these negro 
children were supported by the evidence and not whether the 
tests themselves were invalid. Could you throw any light 
on that?

MRS. MOTLEY: I'm afraid I don't know which particular
case Your Honor refers to. There have been a number in the 
Fourth Circuit and I haven't participated directly in those 
cases. And I therefore am not familiar with exactly which 
one you refer to, If you could call the City—

THE COURT: Maybe you could review that a little later
and give me your views on it.

MRS. MOTLEY: Now on this —
THE COURT: There's another question I would like to

ask you and that is, I am not a psychologist in any sense 
of the word and I don't believe that I know myself what 
would be the importance of those psychological factors and 
I don't know if I'll be aided by any expert testimony from 
either side or by any persons who are experienced in the 
operation of schools to give me any help on those questions.

MRS. MOTLEY: Well, we don't have any expert testimony



Hearing on December 14, 1959 82

on those, Your Honor, and it seems to me we would not be 
able to get a psychologist to tell us now what effect ad­
mission of a child by the name of Brown to a school would 
have psychologically. I think he would be speculating on 
what the effect psychologically would be, even if we put 
him on the stand.

THE COURT: It looks to me like that matter has been
under study by experts ever since the Brown Case came out in 
1954 and by now someone ought to be in position to express 
opinions on whether those tests are reasonable or unreason­
able by this time,

MRS. MOTLEY: Well it seems to me that what the Supreme
Court was really saying in the Brown Case which took note of 
this evidence of the psychologists as to the psychological 
effects on negro children of a state who holds to segregation 
What they were really saying that everybody knows that segre­
gation is designed to stamp negroes with a badge of inferior­
ity. And that this kind of injury the State could not in­
flict even if we didn’t have the psychological tests to sup­
port it. So that I don’t know whether anyone has since that 
time tried to develop any psychological reasons or basis for 
saying that children should or should not be admitted to 
schools because I think the real point there was, this was 
an injury which the State could not inflict; this badge of 
inferiority; and I don't know that there is anyone who can



Hearing on December 14, 1959 83.

say now, that that is such and such a case or the psycholog­
ical effects on the admission of negroes and whites could 
be validly obtained.

THE COURT: I believe that in a great many white
schools or white school systems that there have been provi­
sions for having separate schools for certain groups; but 
I'm not very familiar with it. I received these objections. 
As a matter of fact I didn't get them until sometime on 
Saturday and I have been in Rome several weeks and this 
matter here, I'm almost starting at the beginning this morn­
ing because I didn't get the objections filed as I say until 
last Saturday. All right, I'll be glad to hear any further 
objections.

MRS. MOTLEY: Now I think the same objection applies
to this consideration of home environment. That's much too 
vague. One cannot say now what factors the school adminis­
trator would take into consideration; whether he would take 
into consideration the environment immediately outside the 
home or the environment within the home; whether he would 
take into consideration whether it was a slum area or a 
prosperous residential area or whether there were religious 
influences in the home or nonreligious influences. This kind 
of standard permits of arbitrary action and permits of mere 
prejudice or caprice to be the basis upon which admission or 
non-admission to a particular school is given. And particu­



Hearing on December 14, 1959 84.

larly when we consider the kind of situation which these 
tests are going to be applied, I think that the Court in 
approving any plan should approve a plan which will prevent 
a recurrence of the discriminatory action which the Court's 
order seeks to enjoin. I think if these kinds of standards 
remain in there, then the order would not actually enjoin 
the discriminatory action which is the objective of the 
order. Now with respect to number six, the morals, conduct, 
health and personal standards of the pupil. Of course, those 
are relevant in determining whether a child should be ad­
mitted to school at all. Of course a child who is seriously 
ill or who has a contagious disease may be barred from the 
public schools; but these standards are not relevant to de­
termining whether a negro child should transfer from a negro 
school to a white school because if a negro child's morals, 
conduct, health and personal standards are such that he can 
go to a negro school, then I don't see any basis for ex­
cluding him from a white school on these considerations. So 
that these particular considerations I think can only oper­
ate with respect to an initial determination as to whether a 
child shall be admitted to school at all and would not be 
relevant to a determination of whether a child should trans­
fer from a negro school to a white school.

THE COURT: Now I would like to ask you if those
elements were contained also in the Alabama statute?



Hearing on December 14, 1959 85.

MRS. MOTLEY: Yes, sir; all of the criteria which have
been adopted here as I see it have been taken word for word 
from the Alabama statute. And—

THE COURT: Well, do you not think that the Supreme
Court in upholding the Alabama statute implied all the way 
through that these tests would be applied in a non-discrim- 
inatory way?

MRS. MOTLEY: No, I think that when the Supreme Court
affirmed Judge Rives’ decision in the Alabama Case they were 
careful to point out that it was affirmed on the narrow basis 
on which the statute was upheld by the District Court, and 
that was that the statute as a whole, on its face, did not 
discriminate against negroes. They did not pass upon the 
validity of any individual tests. There was— that is the 
thing that I think Judge Rives tries to clarify by his opin­
ion in the Gibson Case. There has been this mistaken view,
I guess, that the Supreme Court and Judge Rives approved 
every standard in the Alabama statute and therefore these 
standards may be adopted by other communities as a basis for 
assigning pupils to school. And I think Judge Rives wanted 
to correct that erroneous impression when he pointed out 
that he did not pass individually or separately on any parts 
of the Alabama placement act. He pointed out that the way 
that that came up, it came up on that very narrow point.
There was no record there which tended to sustain discrimin­



Hearing on December 14, 1959 86.

ation as alleged by anything except the statute on its face. 
He pointed out that the Plaintiffs in that case offered no 
evidence whatsoever of the operation of the school system 
on a racially segregated basis. Now this case does not 
come up that way. This case has been through a trial here 
on the merits and there's all kind of evidence in the record 
that the system here is operated on a completely segregated 
basis. What you really have is a dual school system; a white 
school system and a negro school system. And assignments are 
made wholly on the basis of race., and this discrimination has 
occurred a long time. So that this case is in a completely 
different posture from the Alabama case when it came up.

THE COURT: I don't think your distinction is well
founded. You say there is evidence here that the Atlanta 
schools have been operated on a discriminatory basis. That 
is true. I have already held that; but we are discussing a 
plan to eliminate the discriminatory basis., and to permit 
very select elimination of that, Don't you think there's a 
difference there?

MRS. MOTLEY: Well, I think that these criteria, the
six which I have called vague and indefinite, have to be 
viewed against the record in this case as to whether the in­
clusion of these criteria will permit a continuance of dis­
crimination on account of race; and I think that because 
these standards are so vague that discrimination on account



Hearing on December 14, 1959 87.

of race is permitted under these criteria, and that's why 
they are objectionable as against the record in this case.
Now going on the fourth objection which we have to the plan 
here, and that is that the Defendants have not sustained 
their burden of showing that once the start has been made 
toward full compliance additional time is necessary. Now 
the Supreme Court in the Brown Case of 1955 said that the 
District Courts may take into consideration certain problems 
related to administration. But nevertheless, the Courts 
would have to require prompt and reasonable start toward 
full compliance and the Court pointed out that where a school 
board asked for time, the burden was on the board to estab­
lish that time is necessary in relation to the problems 
enumerated by the Court there, problems which relate to 
administration, the physical condition of the school plant, 
personnel, provision of school zone lines into compact units 
to establish a basis for determining admission to schools 
without regard to race* And those considerations, and no­
where is the need for twelve years spelled out here with 
relation to those considerations. They simply say that the 
plan shall proceed a grade a year without any justification 
of law for such a protracted length of time in bringing 
about full compliance with the Supreme Court's decision.

THE COURT: I have— I have read in the newspapers that
this plan was patterned after Charlotte. Has the Charlotte



Hearing on December 14, 1959 88.

plan ever been attacked in the Courts on that ground?
MRS. MOTLEY: I don't know Charlotte, Your Honor. As

I understand— if you are referring to Charlotte, North 
Carolina--

THE COURT: Right.
MRS. MOTLEY: As I understand it there, there is no

twelve year plan involved. They have a pupil assignment 
plan which is different from the one here. The--I think 
there are only three or four criteria which are the bases 
for assignment there and I don't understand that there's 
any twelve years involved in the Charlotte, North Carolina, 
situation.

THE COURT: Well didn't the Charlotte plan start at
the high school level and then go down, or not?

MRS. MOTLEY: No sir, I don't understand that.
THE COURT: I'm not familiar---
MRS. MOTLEY: Maybe you are referring to the Nashville

plan, Your Honor, which starts in the first grade.
THE COURT: No, I am not. I would like to have the

Charlotte plan explained to me and compared and see whether 
the Charlotte plan has or has not been approved by any Courts 
or not.

MRS. MOTLEY: Well there have been a number of cases
in North Carolina which came up under the North Carolina 
pupil assignment law. I think the most recent one was



Hearing on December 14, 1959 89.

Covington and Polk, two cases, one arose in Raleigh, North 
Carolina and the Covington Case involved a county situation 
In both of these cases the Fourth Circuit held that Plain­
tiffs would have to first exhaust the administrative remedy 
provided by the pupil assignment law. Now in neither of 
those cases was there any twelve year situation involved. 
The other North Carolina case which is well known is Carson 
against Warlick, and no twelve year situation is involved 
there. I think what happened in Charlotte was that the 
school board voluntarily agreed to take in some students; 
but I think that there is a case pending now by some other 
people in trying to gain admission to school. But I think 
that initially what happened there was that the board it­
self came forward voluntarily and answered that students 
would be taken in.

THE COURT: Mrs. Motley, does your brief contain cita
tions on all these various points and show what the Courts 
have upheld and not upheld?

MRS. MOTLEY: We have not referred to these Fourth
Circuit cases. The only Fourth Circuit case to which I 
referred was the first Fourth Circuit case holding uncon­
stitutional the Virginia pupil assignment law. I think 
they've had three in Virginia but the first one was held 
unconstitutional on its face because it was tied up with a 
state statute which required segregation. But also in that



Hearing on December 14, 1959 90.

statute they had many criteria similar to those here and I 
think it was Judge Hoffman who commented on these, but he 
said quite aside from that it's unconstitutional because it's 
hooked up with this state--other state statute which requires 
that the schools be operated on a segregated basis. And be­
cause of that, it was held to be unconstitutional on its 
face. But these other cases to which I have referred, I have 
not mentioned those in this brief specifically. I think that 
the case which is really controlling here is the Fifth Cir­
cuit decision in the Gibson Case because in the Gibson Case, 
the case first came before the Fifth Circuit on the question 
of whether the students were required to apply for admission 
to a particular school before seeking relief in the Federal 
Court. And in that case the Defendant said we now have this 
pupil assignment plan, and the Fifth Circuit said number one, 
you don’t have to first apply for admission to a particular 
school where there is a policy of segregation and second, we 
could not consider the Florida pupil assignment law until 
there has been some desegregation. The case went back to 
the Trial Court and there was a full trial on the merits and 
the District Court held that the Florida pupil assignment lav; 
as he understood it and the implementing resolution consti­
tuted a plan as far as the Plaintiffs were asking for, and 
the Fifth Circuit said no, the adoption of a certain statute 
and implementing resolution did not in and of themselves



Hearing on December 14, 1959 91.

constitute a desegregation plan especially where the record 
shows the continuance of racial segregation, And I think 
that Judge Rives in that opinion has made an effort to spell 
out the situation at least as far as this Circuit is con­
cerned with respect to the operation of pupil assignment 
laws and he says in there that he interprets the Fourth Cir­
cuit cases not to be inconsistent with his view. He says 
that he interprets the Fourth Circuit cases as saying you 
can have desegregation simultaneously with a good faith ap­
plication of a pupil assignment law. And he says that he 
sees no conflict between the Fourth Circuit and his decision.

THE COURT: Let me ask you this. The plan as submitted
by the Atlanta School Board says in effect that all the 
pupils I assume are in the classes and in the schools that 
they are now in but it makes provision for the application 
of any person to go from one to another. You seem to think 
that’s not a plan and when you say complete integration or 
complete abolition of segregation, just what do you mean?
Do you mean taking all the schools and eliminating every 
student from every school in which that they now are? Just 
specifically how would you recommend going about it?

MRS. MOTLEY: Well no, I don’t mean moving every student
in every school. What I refer to in addition to assignment
of pupils is the designation of certain schools as negro and 
white. The assignment of personnel to schools on a basis of



Hearing on December l4, 1959 92.

race alone. The operation of certain school programs such 
as the science program and music program on a racially segre 
gated basis. These are community wide programs as I under­
stand it. I think that as Judge Rives points out you can't 
just reassign all negroes back to the schools to which they 
have been in all this time and then say that you have de­

segregated. He says—
THE COURT: Well what —
MRS. MOTLEY: — obviously there must be some non- 

segregated —
THE COURT: What is there in this plan that says that

everyone is sent back to the schools in which they are? It 
does do that in effect, but it leaves it open where there 
can be transfers. And another thing, do you or do you not 
concede that the area in which a child lives is a pertinent 
consideration?

MRS. MOTLEY: Yes, sir.
THE COURT: Near a school?
MRS. MOTLEY: I think the nearness to the school is

a pertinent consideration but I don't see that in this plan.
THE COURT: Well, there's nothing in there to negative

that. Now would I not be compelled to take judicial cog­
nizance of the fact that in Atlanta the— residentially speak 
ing there are vast white areas and colored areas and that in 
those areas the students are predominately white and colored



Hearing on December 14, 1959 93.

That’s a fact, isn't it?
MRS. MOTLEY: Yes, sir.
THE COURT: Well then would it not follow if you say

that they shall stay in the schools in which they now are 
for the great part, you would still have primarily white 
in some and colored in others, isn't that true?

MRS. MOTLEY: Yes, if the children are assigned on the
basis of nearness to schools, you would have still many 
schools which are primarily white and which are primarily 
negro.

THE COURT: Now in spite of all that you say that they
should not be left prima facie where they are and then per­
tinent changes made. I don't quite understand that.

MRS. MOTLEY: No, the objection which I have relates
to the designation of certain schools as negro and white.
The— also —

THE COURT: Mrs. Motley, that has been eliminated. I
have already ruled that you cannot do that.

MRS. MOTLEY: Well, I don't know whether I am following
the Court at this moment. I think that we put in evidence 
a directory of Atlanta, Georgia schools.

THE COURT: All that is eliminated, I have already
ruled that you cannot designate certain schools as white and 
certain schools as colored. I know that you object to that, 
and following the uniform decision of the Supreme Court and



Hearing on December l4, 1959 94

other Courts, I think that you cannot do that and I've so 
ruled.

MRS. MOTLEY: Now the next point was the assignment of
teachers on a racially segregated basis. The complaint 
alleged that teachers here were assigned on the basis of 
race. This was indicia of a segregated operation.

THE COURT: That has been done. No one denies that.
MRS. MOTLEY: And then the other--third point is that

certain school programs such as this science program where 
the schools participate in a national science contest and 
the white schools participate in a national level as I under­
stood it and negro schools participated on a local level.

THE COURT: What's in this plan about the national
science program?

MRS, There isn't anything in the plan which relates 
to the segregated operations of these kinds of activities, 
which are school programs on a segregated basis.

THE COURT: Now you say that so many of your objections
are based upon your hypothesis that if this plan were adopted, 
that various things will still be done, such as a national 
science program, which shouldn't be done, I can't proceed 
on that basis. I have to proceed that if a plan is approved 
it will be in contemplation that the plan would be carried 
forward in a legal and legitimate way, I cannot assume that 
a plan will be approved and then will be administered in a



Hearing on December 14, 1959 95.

discriminatory way. There's no objection to the adoption 
of a legal plan to the effect that they may be violated.
You could adopt that to a law against murder.

MRS. MOTLEY: Well I think that in the order which
this Court made in July the Court asked for a complete plan 
which I understand encompassed these other matters. The 
plan which has been presented only relates to the assignment 
of pupils. Now if there were no evidence in the record of 
these other matters being involved in the school system, 
namely, the designation of certain schools as negro and white 
and the assignment of teachers, that would be something else. 
But here the record shows that all these activities were oper 
ated on a segregated basis. Yet, the plan does not attempt 
to deal with it and I think that we can infer from that that 
those things would continue to be operated on a segregated 
basis, because what you have here really is a continuance 
of the status quo. Everybody's been reassigned to a school 
to which they were already assigned whether they lived nearer 
to a white school or not. Those who live nearer to a colored 
school we concede they would be there normally, but—

THE COURT: Tell me what would you propose? Suppose
I ruled with you all the way and as of next September, we 
are going to reshuffle the whole business. How would you 
start with reassigning the pupils.

MRS. MOTLEY: Well since I'm not a school administrator



Hearing on December 14, 1959 96.

I wouldn't say. I think that the Defendants should show 
how this should be done as school administrators. I think 
people who are now living nearer to white schools should 
be reassigned to white schools—

THE COURT: I think they've said rather definitely in
the plan—

MRS. MOTLEY: Well I think what they did was to re­
assign everybody to a negro school whether they lived nearer 
to a white school or not. And our first objection is that 
following an order of this kind the school nearer may not 
then reassign on a basis of race. We object to an initial 
assignment after a trial of this kind on the basis of race.

THE COURT: Now —
MRS. MOTLEY: We think that the school authorities

are required to assign some negro children to white schools; 
and that this is the only way in which the school author­
ities meet their duty to desegregate. What they have done 
is to shift the duty to the negro community once again and 
say now I have reassigned you on a basis of race, where 
it's your duty to come forward again and try to get out.
We think that the initial assignment on the basis of race is 
unconstitutional. That the only way that you— for you— that 
a prompt and reasonable start and full compliance can be made 
by a school board under the Supreme Court's decision and 
under Fifth Circuit decisions is for the school board not to



Hearing on December 14, 1959 97.

reassign on the basis of race, and this says to the community 
that segregation is ended in the schools. Now if after a 
person has been reassigned and there's been this initial 
start, the person complaining would have to exhaust an ad­
ministrative remedy as I see it before coming into Court 
again. But I think when we are at this stage that everybody 
cannot be reassigned, and then everybody have to go through 
the whole business again of trying to get out of the negro 
school because the board has never done nothing but maintain 
the status quo and as I remember the Fifth Circuit decision 
in the Gibson Case, you have got to do something more than 
that before a Court can hold that you have made a start 
toward desegregation. Now once a start has been made, if 
they want additional time, it seems to me that that is the 
time to come into Court and say we need additional time be­
cause of these factors referred to in the Supreme Court's 
decisions, all of which relate to school administration, and 
at that time the Court should determine how much additional 
time they may need in the light of whatever evidence they 
present. But until they put some evidence in as to why they 
need additional time, I don't think that the Court can just 
say twelve years or whatever the time period is that they 
ask for, but there has been no start here toward desegrega­
tion. They haven't done anything to change the status quo. 
Continuing with the fourth objection, I think that because



Hearing on December 14, 1959 98.

they have all of these criteria which now must be considered 
in assigning people to school, that there are so many delays 
involved here that you couldn't make a prompt and reasonable 
start in terms of the time schedule which has been evolved 
here for the purpose of devising a— an administrative remedy.
I think that you would be well past the beginning of school 
in September of any school year if you as a negro tried to 
move from a negro school to a white school. And in addition 
to two reviews by the board itself, of your application for 
transfer, the plan provides for an appeal to the State Board 
of Education and incidentally, in that connection, Your 
Honor, we would like to offer in evidence the rule of the 
State Department of Education relating to appeals to that 
body.

THE COURT: I'll let that be identified as Plaintiff's
Exhibit 1, and admitted.

MRS. MOTLEY: We'd like to admit it as to pages 147
through 149, I guess, relates to this problem.

CLERK: May I have it? Beginning with part 36 here?
MRS. MOTLEY: Excuse me just a minute. Yes, that's

right. One page 147. We'd like to offer that in evidence, 
Your Honor, and the plan does not say anything more than the 
fact that an appeal shall be made to a state board as provided 
by law, and as I see it, that is the law relating to appeals 
to the state board. So that you—



Hearing on December 14, 1959 99.

THE COURT: Well, now, one other question. Did not the
Fourth Circuit Court of Appeals in North Carolina deal at 
great length with this matter of administrative remedy and 
appeals?

MRS. MOTLEY: Yes, sir, in North Carolina their pupil
assignment law is in effect and administrative remedy which 
should be pursued before going into a Federal Court. It 
establishes three or four basic criteria for admission to 
schools. The criteria as I see it, that most school situa­
tions have,— and the Court has held that you have to apply 
there--but as I understand it, that applies--that involves 
only an appeal to the local board.

THE COURT: Do you contend that this procedure for
appeal to the state board in Georgia is not legal?

MRS. MOTLEY: No, sir, I think that it doesn't, from
what I see there, that I don’t know whether you could really 
get an appeal on this kind of situation. But what I'm re­
ferring to is the fact that it lengthens the time for ex­
haustion of administrative remedies to a point where a remedy 
becomes inadequate because you could not exhaust it in time 
to gain admission to school. I'm sure that it could be made 
legal, if that's the only consideration. But my objection 
goes to the lengthening of time before you could start a Court 
proceeding to determine whether you had been excluded on the 
basis of race. Because, in addition to that appeal, there



Hearing on December l4, 1959 100.

are two appeals before the board itself, the local board, 
after you've been once assigned by the superintendent, so 
that your remedy here is not really an adequate one and all 
of this must be pursued once you have been assigned on the 
basis of all these criteria. Now on— in our brief here we 
assume for example that a student applies within the time 
allowed for assignment or reassignment, That is, they allow 
a time between June 1st and June 15th, and I assume that they 
would wait until all the applications are in before consider­
ing them. So, beginning with June 15th, if you assume that 
everyone adhered to the time schedule--and incidentally, there 
is no time within which the superintendent must advise you 
of action initially taken on your application--but assuming 
that the superintendent acted within two weeks thereafter, 
after having applied all these criteria to all these appli­
cations for transfer; and assuming that the board heard and 
determined your appeal on the same day; and assuming that the 
board heard your objections to its decision; and decided 
those objections on the 15th day--and incidentally, in that 
connection the plan does not provide that the board shall 
decide your answer. It just says that they shall hear them 
within fifteen days. But even assuming they heard it and 
decided it within fifteen days later from the way I see it 
you would be way down to September 23rd by the time you got 
finished with the board here and you would not have even



Hearing on December 14, 1959 101.

appealed to the state board. So that the school year would 
be well underway by the time you got through with the state 
board. And then it would be a question of whether you could 
transfer in the middle of the year or whether you wouldn't 
be then applying for a new grade and whether you wouldn't 
have to start all over again on this. Every year you would 
have this problem of trying to get your application heard and 
determined before September, and the plan as now drawn does 
not guarantee any such thing. There's no guarantee that you 
will have your application acted upon in such a manner that 
you can get some kind of redress before the school actually 
opens,

THE COURT: Is it not possible that the application
was required to be filed in the early part of June so that 
the administrative appeal could be completed by September?

MRS, MOTLEY: Yes, I would assume so; but if you actually
go through this as we have done in the brief here to try to 
outline it, even if the time schedule given is adhered to 
and you act promptly, you would still be down to September 
before you had even made your appeal to the state board.
And one of the reasons that the first Virginia pupil assign­
ment law was held unconstitutional on its face was because 
as Judge Hoffman pointed out there, it would take one hundred 
and five days before you exhausted the administrative remedy 
provided there, and you would be well into the school year



Hearing on December 14, 1959 102.

and then the question would be whether or not you were apply­
ing for the next grade and therefore would have to start all 
over again. He doesn't decide that but he points that out 
as his reason for objecting to the plan there, because the 
remedy provided was inadequate. It didn't really give any 
relief with respect to the school year for which you sought 
a change. Now the same thing is true here as I see it. Now 
I'd like to say a further word with respect to our fifth 
objection with respect to two of these criteria which I think 
the Supreme Court has already dealt with in the case of 
Cooper against Aaron, the Little Rock Case. Now I think in 
the Little Rock Case the Supreme Court made it clear that 
the fact that there may be breaches of the peace and demon­
strations of ill will by others outside the school situation 
or even within the school situation could not be used as a 
basis for excluding negroes from schools or from particular 
classes therein. Now as this Court may recall that case, 
the school board sought to suspend its Court approved plan of 
integration for a period of two and a half years in order 
that they have time to test further state statutes which were 
designed to nullify the Supreme Court's decision and also 
because within the school there had been bedlam and turmoil, 
and in short, the education of both negroes and whites had 
been affected by the situation, and the Supreme Court said 
neither of these considerations can be used to set aside



Hearing on December 14, 1959 103.

constitutional rights.
THE COURT: You had that in mind when you said your

objection number three, that the element of peaceableness 
should not be in there, is that right?

MRS. MOTLEY: I'm sorry. I didn't get that?
THE COURT: I say you had that in mind when you a little

while ago, you objected to the element of peaceableness being 
in those requirements?

MRS. MOTLEY: Yes, I think that they cannot take into
consideration the fact that the admission of a negro would 
create breaches of the peace or turmoil or other situations 
by others. That this could not be used constitutionally as 
a basis for excluding them therefrom. Now our final objection 
relates to the fact that the plan has been made contingent 
upon the enactment of statutes by the General Assembly of 
Georgia and the approval of the General Assembly of Georgia 
without more. Now we know that the order of this Court pro­
vided that the Defendants might submit their plan contingent 
upon approval by the Georgia Legislature. But as I see it 
the Atlanta School Board here has the power under state law 
to operate the school. They also have the power to make as­
signments of children to school. Since they have this power, 
any order by this Court enjoining discrimination in the oper­
ation of the system and enjoining discrimination with respect 
to assignment of pupils could not be made forever contingent



Hearing on December 14, 1959 104.

upon approval or enabling legislation by the Georgia Legis­
lature. I think that it's clear that any order of this 
Court in this area relating to constitutional rights here 
is paramount, and any law of the state of Georgia which is 
designed to nullify that order is unconstitutional. And I 
think as long as the Georgia— the Atlanta board rather has 
the power to make assignments and has the power to operate 
the schools, an order of this Court and the Court approved 
plan of this Court must go forward despite any disapproval 
by the Georgia Legislature, and cannot be made forever con­
tingent upon such approval. Now when the Bush Case was be­
fore the Fifth Circuit I believe for the second or third 
time, the school board in New Orleans sought to get out from 
under a Court decree which required them to start desegrega­
tion on the ground that the state had enacted a statute pro­
viding that the legislature had the power to classify schools 
as negro or white and there the Fifth Circuit held as long as 
they had the power to operate the schools they were the proper 
party. And the validity of that state statute wasn't in­
volved, and the Court's enjoining them was still good as long 
as they had that power. And what the legislature might do 
or might not do with respect to the schools did not prevent 
the operation of that order so that I think that here this 
Court has enjoined the Defendants from operating the schools 
on a segregated basis and from making assignments on a



Hearing on December 14, 1959 105.

racially segregated basis; and he is providing that they come 
forward with a plan, and I think that once that plan is ap­
proved that it should go into effect in accordance with the 
order of this Court and shouldn't be made contingent upon 
approval by the Georgia Legislature.

THE COURT: There's a great deal that could be said on
that subject, Mrs. Motley. The Court had in mind in passing 
its original order that the Legislature would meet in January 
and that any plan could not be put into effect until September 
i960. So the Court had in mind that if the Legislature had 
its session in January, i960, it would give the Atlanta School 
Authorities the right at its option to put this plan in.
Then the plan could be effective. This Court has not approved 
any Georgia laws which might have been passed. They have not 
been directly attacked in the Court on a great many phases 
of this matter. This Court has never looked forward to what 
might be ruled in the future in the event that the Legislature 
does nothing in next January; and therefore this plan could 
not have been legally gone forward under the laws of Georgia. 
Very frankly, and I want to make this so clear that nobody 
can misunderstand it. The purpose of this Court in passing 
the order that it did was to give the people of Georgia 
through their Legislature the right if they saw fit to let 
the different communities speak for themselves as to what 
they wanted. Now I'm not saying--if you want to look a good



Hearing on December 14, 1959 106.

ways ahead, let's do it for just a moment. If the Legislature 
did not allow the Atlanta Public System to go through with 
this plan and if this Court said that the Atlanta Public 
System must integrate as the Supreme Court and all the Appel­
late Courts would order this Court to say eventually, and if 
this Court, being compelled to do by higher authorities should 
say to the Atlanta School Board that you must integrate re­
gardless of what the Georgia law says, and if the Atlanta 
School Board then integrated as ordered by the Court, it is 
contended that under the laws of Georgia as they now stand 
the Atlanta School System would close up. Contention is made 
that if the Atlanta School System was forced to close, under 
the rulings of the Supreme Court of Virginia, that the clos­
ing of one school system would mean the closing of all the 
schools in Georgia. Now the point I want to make clear as 
to what I’ve had in my mlnd--and it's no secret--was this 
one thing: That I felt it was the duty of this Court to give
the people of Georgia an opportunity to decide what they 
are going to do under all the facts and circumstances. This 
Court will not attempt to say to the people of Georgia or say 
to the Georgia Legislature or to say to any School Board what 
they should do. The time is going to come, and how soon I do 
not know, and this Court will itself be forced to say that old 
practices cannot continue, and the only thing that this Court 
has tried to do is two things. First, to comply with the



Hearing on December 14, 1959 107.

requirements of the Supreme Court in the Brown Case which 
ordered deliberate speed, but to put just as much emphasis 
on the deliberation as it does on the speed. And I would be 
unfair to you and all the interests that you represent if I 
said to you that when I am compelled to order elimination of 
segregation that there is any intent on my part to do so, so 
speedily that there will be violence. I would say, however, 
that anyone who is so opposed to elimination of segregation 
that they would use violence to prevent it, that I couldn't 
give them one ounce of encouragement because the Court will 
not shape its decisions or policies in this matter to satisfy 
any person of that sort. I do not believe that we have that 
element in this community. We haven't had till now, and I'm 
confident we will not have in the future. Now if what you 
and the interests you represent are demanding is that this 
Court should order immediate integration of the races, knowing 
full well that that will mean the closing of our schools, the 
losing of our school teachers, the throwing of pupils out of 
school, in which event the colored people will suffer more 
than the whites, then I would have to say to you that I could 
not go along with you in any rapid integration of that sort. 
And unless you and the interests that you represent are will­
ing to have elimination of segregation with such deliberation 
as to prevent all of those unfortunate consequences, I cannot 
go along with you. It's my purpose to carry out the command



Hearing on December 14, 1959 108.

of the Supreme Court and of the Fifth Circuit Court of Ap­
peals to eliminate segregation. But as far as I personally 
have any part in that, it is my purpose to do so under a plan 
that will be a gradual plan and not a sudden, explosive plan; 
and also to give if I can the people of Georgia an opportun­
ity to say whether or not they would rather have a gradual 
integration maybe patterned along the lines of the Charlotte 
Plan or whether their answer would be in the negative and 
they would say on the other hand we would rather close every 
school in Georgia than to have one Negro to enter a school 
with the whites. Now the decision of closing the schools, 
that is on the people of Georgia. It's not on this Court.
But the plan under which I assume the Department of Education 
in Atlanta proceeds to enforce here, I must assume is made 
in good faith and will be carried out in good faith. Any 
plan that is approved by the Court and then is violated and 
is not carried out on a non-discriminatory basis, of course 
then the Court would have to take such action as may be ap­
propriate. Now I have gone at great length to explain to 
you what I meant by the General Assembly of Georgia having 
the right to let this plan go through. If the Legislature 
of Georgia says that Atlanta cannot put through any plan, 
the results I would not undertake to make any prophecy, and 
I’m not trying to threaten anybody or anything of that sort. 
Everyone would have to study the law and study the previous



Hearing on December Ik, 1959 109.

rulings of the Supreme Court and the Appellate Courts and 
make their own conclusion as to what may happen in the future. 
I’m not trying to prophesy. I say all that to make clear to 
you why the Court made the plan of the Atlanta Board subject 
to the action of the Legislature, because the Court realized 
that the Atlanta Board could not inaugurate any plan unless 
the Legislature consented for the sole reason that the laws 
of Georgia say that if they do so, they would be closed.
They would get no aid. I hope I have made myself clear on 
that.

MRS. MOTLEY: Well, if Your Honor please, I would just
like to make a point for the purpose of clarifying our 
position. I don't think that at any time in this case we 
have ever asked this Court to decree an Immediate overnight 
violent desegregation. I think that we pointed out at the 
trial of this case that in Cooper against Aaron the Supreme 
Court said again that in some situations an immediate over­
night integration would not be possible. And that in those 
situations the Courts should scrutinize the plans of the 
School Authorities to make sure that those plans were de­
signed to bring about desegregation at the earliest practic­
able date. We are quite willing to abide by the decision of 
the United States Supreme Court and the other Courts which 
point out that this will be allowed in certain situations, 
time in which to bring about full compliance with the Supreme



Hearing on December 14, 1959 110.

Court's decision. So that we are not urging here that this 
Court change its order which is already in existence re­
quiring any speedy overnight desegregation. However, we do 
contend that the Supreme Court has said that a prompt and 
reasonable start must be made. We feel that because of cer­
tain features in this plan a prompt and reasonable start is 
impeded rather than made possible, which I have gone over, 
these vague standards and so on, and the time lag and all 
of that. I think that it's clear that in a situation in­
volving this many negro students the school board could not 
all at once submit all qualified negroes to all of its schools 
to which they are otherwise qualified. So that our objec­
tion is not to the plan as a whole. Our objection is only 
to certain aspects of the plan which we think prevents a 
prompt and reasonable start toward desegregation. I think 
also that in other communities they have been forced with a 
question of whether the schools would be desegregated gradu­
ally or whether they would be closed altogether, and that in 
Virginia for example and in Arkansas they have already passed 
through that phase and the schools have been reopened. I 
think that the same thing will be true or at least I hope the 
same thing will be true in this situation, that the people of 
Georgia will elect to keep the schools open, and to commence 
the process of desegregation in peace and harmony, and that 
they will profit by the example of Virginia and Arkansas with



Hearing on December 14, 1959 111.

respect to that.
THE COURT: On the element of speed or not speed, I

want to make this observation. That this case has moved up 
to this point with perhaps as much speed or loss of time as 
probably any of the cases. This suit was only filed in 
January, *58. We are presently nearly approaching January, 
i960, which would be two years. It's almost two years. 
However, a great many of the cases pending along this line 
have been pending-some were filed before the Brown decision 
was ever made— and yet those Courts have been compelled to 
consider this matter for a long time. And in some instances, 
it’s gone several times through the Appellate Courts, and 
this case has moved along to this point where a plan has 
been submitted I think more quickly than perhaps a great 
many of the other cases. I don't believe there has been any 
delay in bringing this matter up to this point of submitting 
a plan, I think it has been done in a rather short time.
But I'll have to say that I'm going to need a considerable 
amount of help that so far I haven't been given on various 
phases of this plan. Maybe some expert, some testimony and 
certainly some decision where you contend that this plan is 
inadequate or incomplete or unlawful because I don't have 
before me the decisions. I have been operating Court here 
ever since last summer, and up to now without skipping a 
single week, and I have not had time to brief this case with



Hearing on December lb, 1959 112.

the thoroughness that Counsel have the opportunity to brief 
It. But you would have to show me some decisions on certain 
aspects of this--of this matter here where you say the plan 
is Illegal because the Supreme Court said that a lot of 
these phases in the Alabama statute were valid. I have to 
take them to be valid until shown to the contrary. I also 
assume that what the Supreme Court meant was that those 
provisions were valid if carried out in a valid way. I 
think that’s understood. Is there anything else now you 
would like to offer?

MRS. MOTLEY: No, sir.
THE COURT: All right. I’ll hear from the other

Counsel.
MR. MURPHY: Your Honor, there is very little that

I can add to the plan itself which Is before Your Honor.
It was filed in accordance with Your Honor’s order and I 
think it Is self-explanatory. I should like to say just 
this about it, that this plan is not the product of Counsel. 
It's the product of the administration and the Atlanta Board 
of Education. It was prepared as a result or submitted to 
this Court as a result of a great deal of consideration and 
study by the Board of Education, and I think I can assure 
Your Honor that it was approached by the Board of Education 
in complete good faith in an effort to adopt a plan that 
would be workable and would have some reasonable probability



Hearing on December 14, 1959 113.

of approval by the General Assembly of Georgia. It, so far 
as the criteria to be considered by the assigning official, 
the superintendent in this instance, is concerned, they fol­
low substantially the Alabama placement plan and I am told 
by Mrs. Ira Jarrell that these psychological considerations 
are of great deal--are of a great deal importance and I think 
if Your Honor assumes as Your Honor should that the purpose 
of the Atlanta Board of Education and of the superintendent 
of Atlanta schools is to administer this plan in good faith, 
that it does meet the requirements of Your Honor's order and 
meets the requirements of the decision of the Supreme Court 
of the United States in Brown versus Topeka. I have made a 
detailed study of the cases that were cited in the opposing 
brief. I didn't get the brief or have an opportunity to 
read it until this morning. I will say that in the Gibson 
Case, a copy of which is attached to the brief of the other 
side, the plan there adopted was struck down because as the 
Fifth Circuit indicates in its opinion, the form of applica­
tion did not contain a clear indication that the applicant 
should indicate any choice of schools. And the Court went 
on to say in that case that the board may--referring to the 
Board of Education— if it chooses, submit for the considera­
tion of the District Court a plan whereby the Plaintiffs and 
the members of the class represented by them are hereafter 
afforded a reasonable and conscious opportunity to apply for



Hearing on December 14, 1959 114.

admission to any schools for which they are eligible without 
regard to their race or color, and to have that choice fairly 
considered by the enrolling authorities. Now I think that's 
exactly what this plan submitted by the Atlanta Board of 
Education does. I don't know of anything that I can add to 
what has been said. Your Honor has already stated the con­
sideration which prompted Your Honor to put in your order 
the requirement for the provision that it— that the plan 
might be subject to the enactment by the General Assembly 
of Georgia of statutes which would permit it to be put in 
operation and Your Honor knows as we all know that the 
Atlanta Board of Education is dependent upon the General 
Assembly of Georgia for money and it cannot operate without 
public funds. I don't know of anything else.

THE COURT: Mr. Murphy, in regard to this right of
administrative appeal, would you explain to me your inter­
pretation of the language on this point that if a student 
applies for transfer between June the 1st and June the 15th, 
whether or not that student could obtain an administrative 
order on his appeal if his transfer was turned down?

MR, MURPHY: Yes, sir, I think if he applies in the
time prescribed by the order, then he can appeal to the Board 
and of course the superintendent passes on these applications 
initially, and I don't think it's possible to have them 
handled in any other way. He can appeal to the Board. The



Hearing on December 14, 1959 115.

Board does not have two appeals. The plan simply provides 
that it may hear the appeal by a committee and it isn't 
necessary for the entire Board of Education to sit, and that 
committee takes evidence and returns it to the entire Board 
which passes on the entire matter. Then it's considered by 
the Board and the extreme time as I read it, that's set forth 
in here for the handling of the matter, is fifty days. It 
must have the hearing within thirty days and notify the 
Board--the applicant of the action taken by the Board within 
twenty days after the conclusion of the hearing, not after 
the Board—

THE COURT: That's a total of seventy days?
MR. MURPHY: No, sir, a total of fifty days from the

time the superintendent acts. The superintendent is not re­
quired to act within any specific length of time. In other 
words the application must be filed between June the 1st and 
June the 15th and the superintendent then acts upon it. And 
after the superintendent acts upon it, the child is notified 
of the action. The child has got fifteen days in which to 
request a hearing before the Board, but then the child doesn't 
have to wait that long, but from the time the hearing is re­
quested as I read it, there's a total there of six--fifty 
days, thirty and twenty. Now of course so far as the appeal 
to the State Board of Education is concerned, as Your Honor 
knows, that's provided by state law. There isn't anything



Hearing on December l4, 1959 1 1 6 .

that the Atlanta Board of Education can do about that, and 
the Supreme Court— I mean the Fifth Circuit recognized that 
right of appeal. It’s contained in the statement of law in 
the old case of Davis against Cook with which Your Honor is 
probably familiar. The plan does provide that any person de­
siring to may appeal to the State Board of Education as pro­
vided by law. If we were to strike that out, the right of 
appeal would still exist because it doesn't arise under the 
plan. It arises by virtue of the state law. If the state 
laws applies to it, and I think it does, because it Is very 
broad—

THE COURT: Do you think the Defendants would be opposed
to amending that plan so as to make it clear that all this 
procedure could be completed by the opening of school? You 
see, it says the superintendent shall act on it but doesn't 
say within what time.

MR. MURPHY: I know of no reason why the Board of Educa­
tion would be averse to amending the plan so as to put a time 
limit within which the superintendent must act upon an appli­
cation. There's no set date for the schools to open, as Your 
Honor knows. Sometimes they open about the first of September 
and sometimes it's about the second or third week in September.

THE COURT: No, I would assume though that they would
open the early or middle part of September at the latest.

MR. MURPHY: I have no jurisdiction or authority to



Hearing on December 14, 1959 117.

speak for the Board on that particular thing, but I am quite 
sure I can say, Your Honor--Mr. Latimer is here--that the 
Board would have no objection to amending the plan so as to 
set up a time limit for consideration of these applications 
by the superintendent. I realize that there’s no time fixed 
for that and it was not fixed because of the possibility of a 
great many administrative difficulties going from the number 
of plans— of applications that may arise under this thing, 
and they won’t all be applications for--of negro students to 
white schools. I think there will be all sorts of applica­
tions for transfer and they will all have to be passed upon.

THE COURT: Are you saying that you have had about as
much experience as the Court has in operating schools?

MR. MURPHY: Yes, sir. I never did teach school, Your
Honor. I don’t know whether Your Honor ever did or not.

THE COURT: No.
MR. MURPHY: There's one thing I ’m sure I never would

have patience enough to teach school. Anything you want to 
say, Mr. Edenfield?

THE COURT: Ladies and gentlemen, I certainly cannot
decide this case now. I'll have to give these papers, plead­
ings, careful study and perhaps there will be some questions 
which I will want to propound to Counsel which I can do by 
mail. I trust it will not be necessary to set it down for 
any further hearing. I would like to decide it as promptly



Hearing on December 14, 1959 118

as possible.
MR. MURPHY: Your Honor, I would call Your Honor*s at­

tention to the fact that the Legislature meets as Your Honor 
knows on the second Monday in January, and Counsel in this 
case are directed to transmit by the order of the Board, to 
transmit copy— copies to the President of the Senate and 
Speaker of the House of Representatives upon Your Honor's 
authorization. Of course the Legislature will be in session 
for forty days.

THE COURT: Well I assume that transmitting it to them
will be useful, but to go forward it would have to be some 
type of bill that was introduced in the Legislature.

MR. MURPHY: Yes, sir.
THE COURT: I assume it will be. I don't know.
MR. MURPHY: I assume so too, Your Honor; but I don't

know of anything that the Board of Education can do other 
than to provide for its being read before the General Assembly.

THE COURT: Well —
MR. MURPHY: I have reference to the time element.
THE COURT: I want to make it clear that the Court has

not made a commitment to any party about what the Court will 
do in the future on this matter or what would be done in the 
event this that and the other thing may happen. All of that 
is left absolutely open.

MR. MURPHY: Yes, sir. We understand that, Your Honor.



Hearing on December 14, 1959 119.

THE COURT: I'm not able to say what will happen in
the future and what action the Court will take. All that's 
absolutely open. Well, Court is recessed for fifteen minutes.

*  *  *

UNITED STATES OF AMERICA 
NORTHERN DISTRICT OF GEORGIA

I, James G. Pugh, Official Court Reporter of the United 
States District Court for the Northern District of Georgia, 
do hereby certify that the foregoing fifty pages contain a 
true transcript of proceedings had before the said Court held 
in the City of Atlanta, Georgia, in the matter herein stated.

In testimony whereof I hereunto set my hand on this the 
18th day of March, i960.

/S/ JAMES G. PUGH_________
Official Court Reporter 
Northern District of Georgia



120.

DEPENDANTS' CROSS DESIGNATION OP CONTENTS 
OF RECORD ON APPEAL____________

(Same Title - Piled Jan. 10, 1963)

1. Order of Judge Hooper dated 6-15-59.
2. Order of Court on Motion by Defendants to Approve

Plan; filed 12-30-59.
3. Order of Court dated January 18, i960.
4. Response of Defendants to Motion of Plaintiffs for 

Further Relief; filed March 8, i960.
5. Notice of Appeal of Plaintiffs; filed March 19, i960.
6. Motion to Dismiss Appeal on behalf of Plaintiffs; 

filed March 24, i960.
7. Order on Motion to Dismiss Appeal on behalf of 

Plaintiffs; filed March 24, i960.
8. Amended Motion to Dismiss Appeal on behalf of 

Plaintiffs; filed April 2, i960.
9. Order Dismissing Appeal on behalf of Plaintiffs; 

filed April 5, i960.
10. Opinion on Plaintiffs' Motion for Further Relief

dated September 8, i960.
11. Transcript of Hearing on July 5, 1962.
12. Transcript of Hearing on December l4, 1959.

1205 Healey Bldg. 
Atlanta 3, Georgia 
525-7641

/s/ J. C. SAVAGE
J. C. SAVAGE

/S/ NEWELL EDENFIELD
NEWELL EDENFIELD
A. C. LATIMER
A. C. LATIMER

Attorneys for Defendants