Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Brief for Appellants
Public Court Documents
January 1, 1958

Cite this item
-
Brief Collection, LDF Court Filings. Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Brief for Appellants, 1958. dc5dbdce-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/52f98a3a-5d68-4f3e-86ed-87d7f31b567d/kelley-v-metropolitan-county-board-of-education-of-nashville-and-davidson-county-tn-brief-for-appellants. Accessed June 17, 2025.
Copied!
I n THE lutfrfc (ftmtrt of Appeals F oe t h e S ix t h C ir c u it No. 13,748 R o b er t W . K e l l e y , et al., Plaintiffs-Appellants, B o ABD OF E D U C A T IO N OF T H E C lT Y OF N A S H V IL L E , D avidson C o u n t y , T e n n e s s e e , et al., Defendants-Appellees. A PPEA L FB O M T H E D ISTR IC T COU RT OF T H E U N IT E D STA TES FOB T H E M ID D LE D ISTR IC T OF T E N N E S S E E , N A S H V IL L E D IV ISIO N BRIEF FOR APPELLANTS Z. A l e x a n d e r L ooby A von N . W il l ia m s , J b . 327 Charlotte Avenue Nashville 3, Tennessee T h u r g o o d M a r s h a l l Suite 1790 10 Columbus Circle New York 19, New York Counsel for Appellants W il l ia m L. T aylor Of Counsel TABLE OF CONTENTS TO BRIEF PAGE Statement of Questions Involved ...... ............. ......... 1 Statement of Facts..................................................... 2 Argument ................. ....................-............................ 10 Belief ......................................................................- 21 T a b le of C a s e s : Booker v. State of Tennessee Board of Education, 240 F. 2d 689 (6th Cir. 1957), cert, denied 353 U. S. 965 .......................................................................... 19 Brown v. Board of Education, 347 U. S. 483; 349 U. S. 294 ......... .............-....................................10,13,14,18, 20 Brown v. Board of Education of Topeka, 139 F. Supp. 468 (D. Kansas 1955)................................... 11 Clemons v. Board of Education of Hillsboro, 228 F. 2d 853 (6th Cir. 1956)...... ....................................... 19 Cooper v. Aaron,-----U. S. ——, 3 L. ed. 2d 5 (de cided September 29, 1958) ............................ 10,13,16,19 Jackson v. Bawdon, 235 F. 2d 43 (5th Cir. 1956), cert, denied 352 U. S. 925 ...................................... 10 Lane v. Wilson, 307 U. S. 268 ................................... 13 McSwain v. County Board of Education, 138 F. Supp. 570 (E. D. Tenn. 1956) .......................................... 18 Mitchell v. Pollock, 1 Bace Bel. L. Bep. 1038 (W. D. Ky. 1956); 2 Bace Bel. L. Bep. 305 (W. D. Ky. 1957) ....................................................................... 18 11 Pierce v. Board of Education of Cabell County, (S. D. W. Va. 1956), unreported............-............... 18 Sliedd v. Board of Education of Logan County, 1 Race Eel. L. Rep. 521 (S. D. W. Ya. 1956) ...... 18 Shelley v. Ivraemer, 334 U. S. 1, 22............................ 13 Willis v. Walker, 136 F. Supp. 177 (W. D. Ky. 1955) 18 O t h e b A u t h o b it ie s : Allport, The Nature of Prejudice (1954) ................. 15 Carmichael and James, The Louisville Story (1957) 14 Chein, Deutsch, Hyman and Jahoda, Ed., “Con sistency and Inconsistency in Intergroup Rela tions,” 5 Journal of Social Issues (1949) ............. 15 Clark, “Desegregation: An Appraisal of the Evi dence,” 9 Journal of Social Issues (1953) ............. 14,15 Dean and Rosen, A Manual of Intergroup Relations (1955) ......... ........................................................... 14,15 Kutner, Wilkens and Yarrow, “Verbal Attitudes and Overt Behavior Involving Racial Prejudice,” 47 Journal of Abnormal and Social Psychology (1952) ........... 15 La Piere, “Attitudes v. Action,” 13 Social Forces (1934) ....................... 15 Lee, “Attitudinal Multivalence in Culture and Per sonality,” 60 American Journal of Sociology (1954- 55) ........... 15 IV Southern School News No. 11 (May 1958) .......... 14 Thompson, Ed., “Educational Desegregation, 1956,” 25 Journal of Negro Education (1956) ................. 14,15 Williams and Ryan, Schools in Transition (1954) .... 14,15 PAGE TABLE OF CONTENTS TO APPENDIX Docket Entries ................ la Complaint................................................................... 4a Answer ................ 14a Supplemental Answer................................................ 32a Transcript of Proceedings on November 13, 14, 1956 38a P l a in t if f s ’ W it n e s s e s : V. T. Thayer— Direct ................................................... 39a 0. B. Hofstetter— Direct ................................................... 44a Memorandum Opinion of the Court.......................... 46a Findings and Conclusions.................... .................... 57a Judgment ................................................................... 65a The Court’s Statement Delivered From the Bench .... 67a O rder.......................................................................... 81a Transcript of Testimony on January 28, 1958 .......... 82a D e f e n d a n t s ’ W i t n e s s : William H. Oliver'—- Direct ................................................... 82a Cross ..................................................... 84a Opinion ...................................................................... 88a O rder.......................................................................... 103a Transcript of Proceedings on April 14, 1958 ............. 105a I l l PAGE D e f e n d a n t s ’ W it n e s s e s : William H. Oliver— Direct ................................................... 107a Cross ..................................................... 117a Recalled by the Court.......................... 228a Elmer Lee Pettit— Direct ...... ........... -................................ 129a Cross ..................................................... 134a Redirect ................................................ 148a Mary Brent— Direct ................................................... 150a Cross ..................................................... 156a W. A. Bass— Direct ................................................... 159a Cross ..................................................... 163a P l a in t if f s ’ W it n e s s e s : Herman H. Long— Direct ................................................... 171a Cross ..................................................... 184a Dr. Preston Valien— Direct ................................................... 195a Cross ..................................................... 201a Mrs. Preston Valien— Direct ................................................... 208a Cross ........... 215a Coyness L. Ennix— Direct ................................................... 222a Cross ..................................................... 224a Redirect ............................................... 225a Memorandum Opinion............................................... 236a Findings of Fact and Conclusions of Law................. 241a Judgment ................................................................... 246a iv PAGE I n t h e HmtpJt Staten (Cmtrt of Appeals F oe t h e S ix t h C ir c u it No. 13,748 R obert W . K e l l e y , et al., Plaintiff s-Appellants, --- Y.--- B oard o f E d u c a t io n o f t h e C it y o f N a s h v il l e , D avidson C o u n t y , T e n n e s s e e , e t a l., Defendants-Appellees. A PPEA L FR O M T H E D ISTR IC T COU RT OF T H E U N IT E D STATES FOR T H E M ID D LE D ISTR IC T OF T E N N E S S E E , N A S H V IL L E D IV ISIO N BRIEF FOR APPELLANTS Statem ent o f Q uestions Involved I. May a Court in determining whether twelve years is necessary to complete desegregation of a public school system take into account community opposition as a justification for the delay? The Court below answered this question Yes. Appellants contend that it should be answered No. II. Does a provision in a plan for public school desegre gation sanctioning the transfer of students from schools where they constitute a racial minority, or 2 from schools which previously served only members of the other race, violate the equal protection clause of the Fourteenth Amendment to the United States Constitution? The Court below answered this question No. Appellants contend that it should be answered Yes. III. Where a school board has failed to show that delay is necessary for the solution of any particular prob lem, and in fact has not even identified any specific administrative obstacle to be overcome, may a court approve a twelve-year plan for public school desegre gation ? The Court below answered this question Yes. Appellants contend that it should be answered No. Statem ent o f Facts Plaintiffs-appellants, Negro children who attend various public elementary, junior high, and high schools in Nash ville, Tennessee, and their parents, brought this action on September 23, 1955 on behalf of themselves and those simi larly situated, against the Board of Education of the City of Nashville and its members, the Superintendent of Schools for Nashville, and several public school principals, seeking a declaratory judgment that the laws of Tennessee requiring segregation of white and Negro children in public educational facilities were unconstitutional, and an injunc tion restraining defendants-appellees from refusing to admit appellants to specified public schools, solely because of their race (App. 4-12). Appellants’ complaint was amended subsequently to add as parties plaintiff two white children, and their parents, who had been denied 3 admission to schools operated on a segregated basis for Negroes (App. 57). Appellees answered, admitting that appellants had been denied admission to the schools closest to their homes to which they had applied, solely on the basis of race and that laws requiring racial segregation were invalid (App. 14- 24, 38). Appellees alleged, however, that they intended in good faith to implement the decision of the Supreme Court in the School Segregation Cases, that a committee had been appointed for the purpose of studying the prob lems of implementation, that it had made two progress reports, but that more time was needed to formulate a plan (App. 17-24). Upon these representations, the Court granted appellees’ motion for a continuance of the case until the October 1956 term (App. 47). When the case was called at the October 1956 term, the Board of Education moved to postpone it until after the meeting of the 1957 legislature of Tennessee, on the as sumption that the legislature might pass laws relevant to the issues of the case. This motion was denied (App. 69). On November 13, 1956, appellees submitted to the Court a plan embodying the following provisions: abolition of “compulsory segregation” in Grade One of the elementary schools beginning September, 1957; the establishment of a zoning system for Grade One based on residence and without reference to race; the establishment of a transfer system allowing the transfer of white and Negro students who would otherwise be required to attend schools pre viously serving only members of the other race and allow ing the transfer of any student from a school where the majority of the students are of a different race; setting December 31, 1957 as the date for a further recommenda tion by the Board of Education’s Instruction Committee as to the time and number of grades to be included in the nest step to abolish segregation (App. 47-48). 4 After hearing on November 13, 1956, the court below held that the plan presented by appellees was adequate, amending it only to require that the Board of Education submit by December 31, 1957 a report setting forth a com plete plan to abolish segregation in the remaining grades of the city school system, including a time schedule. The Court retained jurisdiction but withheld the issuance of an injunction pending the filing of the new plan (App. 52- 56). On August 30, 1957, the Board of Education filed a motion for leave to file a supplemental answer and counter claim, alleging that Chapter 11, Public Acts of Tennessee for 1957, authorized the establishment of separate schools for white and Negro children whose parents elect that such children attend schools with members of their own race, that petitions had been received from parents urging the establishment of such separate schools, and seeking a declaration of its right to operate separate schools in light of the prior judgment of the Court (App. 67-72). After argument, during which the Board sought to sustain the validity of Chapter 11, the Court ruled the statute uncon stitutional and denied the Board’s motion for leave to file a supplemental answer and counterclaim (App. 73-81). On December 6, 1957, the Board filed with the Court a document described as “a complete plan to abolish segre gation in all grades of the City School System” which con templated the establishment of a system substantially the same as that authorized by Chapter 11, which the Court had previously ruled unconstitutional. By the terms of the plan, an annual census was to be conducted to deter mine which parents desired their children to attend schools with members of their own race exclusively and which parents desired that their children attend schools with members of another race. On the basis of this poll three 5 types of schools were to be operated: schools for Negro students whose parents preferred that their children at tend segregated schools, schools for white students whose parents preferred that their children attend segregated schools, and schools for students whose parents preferred that they attend integrated schools (App. 90, 97-98). On January 20, 1958, the Board filed a motion to dismiss this case on the ground that the Tennessee Pupil Assign ment Act, Chapter 13, Public Acts of 1957, approved a year earlier, provided an adequate administrative remedy which must be exhausted before the rights of appellants to transfer to different schools could be judicially deter mined (App. 91). After hearing on January 28, 1958, the court: (1) denied the motion to dismiss, finding that the Board of Education was committed to a policy of continu ance of compulsory segregation and that the remedy pro vided by the Pupil Assignment Act was not adequate, and (2) disapproved the Board’s plan of December 6, 1957, holding that, like Chapter 11, it failed to meet the test of constitutionality because it would give the sanction of law to a continuation of compulsory segregation in public edu cation (App. 88-101). The Court, however, again with held the issuance of an injunction, and allowed the Board until April 7, 1958 to file another plan to eliminate racial discrimination in its school system (App. 103-104). On April 7, 1958, the Board filed with the Court a plan contemplating the abolition of “compulsory segregation” in Glrade Two in September, 1958 and in one additional grade a year thereafter until completion, and retaining the zoning and transfer provisions contained in the plan first approved by the Court (App. 236-237). After hearing, the Court on July 17, 1958 entered an order approving the Board’s plan in its entirety, denying appellants’ prayer for injunctive relief and retaining juris 6 diction during the period of transition (App. 246). The Court found that the witnesses for appellees, “based upon their years of experience in education and upon their in timate knowledge of conditions in Nashville, sincerely be lieve” that a sudden transition would “engender admin istrative problems” of great magnitude; that the appellees were actuated by a belief that the twelve-year plan was necessary to minimize the effect of community opposition to integration; that the appellants’ witnesses had no direct connection with the Nashville public schools (except for one witness who was a member of the School Board) and that they disagreed among themselves as to the best plan for desegregation; that it is not the province of the Court to operate the public schools and that the judgment of the Board had been sustained by a clear preponderance of the evidence (App. 236-240). Notice of appeal to this Court was filed by appellants on August 15,1958. Nashville’s public school system consists of some forty- six schools with a total enrollment of 27,595, of whom 10,322 are Negro students (App. 58). The enrollment in the first grade of the school system is approximately 3400, of whom 1400 are Negro students (App. 58-59). Because of residential segregation, only 115 of the 1400 Negro students in the first grade were eligible to attend schools previously attended only by white students, under a zoning system based upon residence (App. 86-87). Only 55 of the 2000 white students in the first grade were eligible to attend schools previously attended only by Negro students (App. 82). All 55 of the white students sought and were granted transfers and 105 of the 115 Negro students were granted transfers (App. 83). Several parents of the 105 sought re-transfers to enable their children to attend in tegrated schools, but these applications were denied by the Superintendent because he felt that the children did not want to be re-transferred and that the parents had 7 been influenced by others and did not have good reasons for seeking re-transfer (App. 84-86). Thus, because of the pattern of residential segregation, only a small percentage of the school population will be affected by the plan for desegregation (App. 86-87). At the hearing on April 14, 1958, all of appellees’ wit nesses—W. H. Oliver, Superintendent of Schools for Nash ville, Elmer Lee Petit, acting chairman of the School Board, Mary Brent, principal of a Nashville elementary school, and W. A. Bass, former Superintendent of Schools —testified that a major reason for their support of the twelve-year plan was their belief that a majority of the citizens of Nashville were strongly opposed to desegrega tion and that the twelve-year plan was the one most in accord with the wishes of the majority and would engender the least community opposition (App. 112-116, 132-133, 155-156, 165-166). Appellees’witnesses expressed the belief that only a gradual plan of the twelve-year variety would allow smooth adjustments to be made in the educational process. The school principal testified that there had been some disturbances outside her school at the beginning of the 1957 term, that there had been unusual absenteeism during the first month of school, that she had been the victim of abusive phone calls, that many parents personally regis tered to her their protests against desegregation, that some parents had refused to join the PTA because Grade One had been desegregated and that there had been a couple of incidents involving discrimination by older children against Negro first-graders (App. 152-153). In spite of this, she testified that little tension was felt within the school itself and that the education of both white and Negro first-graders had progressed satisfactorily (App. 153, 158) but felt that this might not be the case with older 8 children who were conscious of race differences (App. 158- 159). The Superintendent of Schools added that the twelve- year plan would make possible a more homogeneous group ing of students, in that if large numbers of students were involved in a speedier plan for desegregation, students of different backgrounds and levels of achievement might be placed in the same classes (App. 115). He conceded, however, that homogeneity was not “exactly” a racial matter and that the problem of achieving homogeneous groupings had existed for a long time and would con tinue to exist irrespective of desegregation (App. 118-119, 124-125). The former Superintendent of Schools indicated that he favored the twelve-year plan because, based on his past experience, he anticipated that the attitudes of teachers might cause some difficulty (App. 161-162). These were the only matters mentioned by appellees’ witnesses. None of appellees’ witnesses identified any specific administrative problem to be solved; nor was any attempt made to demonstrate that the delay entailed in the twelve-year program was necessary for the solution of any particular problem. —Appellants’ witnesses were a psychologist and two sociol ogists, all of whom held or had held college teaching posi tions and had done research, writing and consultative work in the field of race relations and desegregation (App. 171a. ~- 175?t 19 -̂196 ̂ 208̂ 20̂ .). Appellants’ fourth witness was the lone Negro member of the Nashville Board of Educa tion (App. 222 .̂ " A These witnesses testified that actual experience with de segregation in several localities demonstrated that delay increases rather than decreases community antagonism 9 ( 4 p - 177-178, 197-200, 210-211). They stated that delay creates doubts and resistance in the public mind (App. 177:< 178); and further confusion is engendered by singling out particular grades for desegregation and breaking up fam ily units (App. 198-199). Conversely, in communities where desegregation was accomplished rapidly, tensions were minimized (Aipp. 178,' 210-211). Expressed attitudes against desegregation did not manifest themselves in ac- f l ®*ttion (Ap-p. 211) and the apprehensions of teachers that de segregated classes could not be taught successfully proved unwarranted (App. 174). Two of appellants--- witnesses contended that desegrega- tion should take place immediately (App. 210, 243), while two others suggested that it could be accomplished by functional units in a two or three-stage plan (App. 206,' ,-223). All of appellant-& ̂witnesses, however, opposed the twelve year program (Afpp-. 177-178, 197-200, 210, 222j and none stated a belief that desegregation could not prac ticably be put into effect immediately. Appellants contend that the Court below erred in approv ing a twelve-year plan on the ground that it was necessary to minimize community hostility; in holding that a transfer provision in that plan based upon racial criteria does not violate the Fourteenth Amendment; in approving delay where appellees had not sustained their burden of showing that it was necessary to overcome legitimate administrative problems, and in fact had not even identified any specific administrative obstacle; and in refusing to issue an in junction requiring immediate desegregation of the public schools of Nashville. 1 0 A R G U M E N T I. May a Court in determ ining w hether twelve years is necessary to com plete desegregation o f a public school system take into account com m unity opposi tion as a justification for the delay? The Court below answered this question Yes. A ppellants contend that it should be answered No. In Brown v. Board of Education, 349 U. S. 294, the Supreme Court in formulating a decree to effectuate its prior decision that racial segregation in the public schools is a violation of the Fourteenth Amendment, said at page 300: Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. This pronouncement was interpreted almost uniformly as prohibiting the consideration of community opposition to desegregation as a justification for delay. See, e.g., Jackson v. Rawdon, 235 F. 2d 93 (5th Cir. 1956), cert, denied 352 U. S. 925. Any lingering doubts on this score were put to rest in Cooper v. Aaron, —— U. S .----- , 3 L. ed. 2d 5, 10 (decided September 29, 1958); where the Supreme Court, in rejecting an appeal by the Little Rock School Board which urged suspension of its plan for desegregation because violence had occurred, specifically ruled that hos tility to racial desegregation is not a relevant factor in determining whether justification exists for not requiring immediate nonsegregated education. 1 1 Yet the appellees here frankly conceded that community hostility to desegregation was a major factor in devising the time schedule (App. 112-116, 132-133, 155-156, 165-166), and the Court below took specific cognizance of this fact as a basis for approving the plan (App. 237-238). This, appellant submits, is reversible error. II. D oes a provision in a plan for public school desegre gation sanctioning the transfer o f students from schools where they constitute a racial m inority, or from schools w hich previously served only m em bers o f the other race, violate the equal protection clause o f the Fourteenth A m endm ent to the U nited States Constitution? T he Court below answered this question No. Appellants contend that it should be answered Yes. The Court below here has approved a provision sanc tioning the use by public officials of racial criteria in the assignment of children to schools (App. 53-55, 236). In Brown v. Board of Education of Topeka, 139 F. Supp. 468 (D. Kansas 1955), the Board of Education of Topeka submitted a plan with a provision similar to the one here in question, which permitted children entering school to elect whether they would attend schools near their homes or in another district. The District Court held that this provision did not comply with the Supreme Court’s man date. The Court, however, did not condemn the whole plan, because the transfer provision was to be of only a year’s duration. The transfer provision in the Brown case was held wanting even though, unlike the provision in the instant case, it made no specific reference to race. 1 2 The Court below in this case itself condemned a plan which contemplated the establishment of a system of segregated and integrated schools based upon parents’ preferences. In this connection, the Court said (App. 99- 100) : Another objectionable feature to the plan is that it does not offer in any realistic sense an alternative or choice to the members of the minority race. To hold out to them the right to attend schools with members of the white race if the members of that race consent is plainly such a dilution of the right itself as to rob it of meaning or substance. The right of negroes to attend the public schools without discrim ination upon the ground of race cannot be made to depend upon the consent of the members of the ma jority race. This reasoning also constitutes a fatal objection to the transfer provision here in question. The sanction of trans fers from desegregated schools on grounds of the racial composition of the school or its previous racial designa tion clearly impinges on the right to a nonsegregated edu cation. In authorizing one group of children to transfer from desegregated schools in their neighborhoods because of their racial attitudes (or those of their parents), the right of another group to attend these desegregated schools is clearly made to depend on the consent of the first. The operation of this transfer provision already has resulted in continued segregation in schools which otherwise would have been desegregated (App. 82-83). Appellees cannot under the guise of extending “free dom of choice” to one group so restrict it for another. This is especially true where the provision authorizes the consideration of race as a factor in the assignment of children to public schools. The “optional” character of 13 such provisions does not save them from condemnation. Cf. Brown v. Board of Education, 347 U. S. 483; where the Supreme Court struck down a Kansas statute which permitted but did not require the maintenance of segre gated public schools, along with other statutes which were mandatory. Nor is it any answer to say that Negro children may also avail themselves of the transfer pro vision, for “ [e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.” Shelley v. Kramer, 334 U. S. 1, 22. The prohibitions of the Constitution extend to sophisti cated as well as to simple-minded modes of discrimination. Lane v. Wilson, 307 U. S. 268, 275; and the “rights of children not to be discriminated against in school admission on grounds of race or color” cannot be nullified “through evasive schemes for segregation whether attempted ‘in geniously or ingenuously.’ ” Cooper v. Aaron, ----- - U. S. ----- , 3 L. ed. 2d 5, 16. III. W here a school board has fa iled to show that delay is necessary for the solu tion o f any particular problem , and in fact has not even identified any specific adm inistrative obstacle to be overcom e, m ay a Court approve a twelve-year plan for public school desegregation? The Court below answered this question Yes. Appellants contend that it should be answered No. A. The Twelve-Year Plan. Appellants submit that the racial transfer provision cannot be allowed to stand and that the sanctioning of delay because of community hostility by the Court below, 14 was in itself error sufficient to require reversal.1 * * IV But the error in approving appellees’ twelve-year plan was even more far-reaching. In Brown v. Board of Education, 349 U. S. 294, the Supreme Court recognized that good faith compliance 1 Even if consideration of community hostility were permissible, there is no warrant for the assumption made by the court below that a twelve-year plan was a good method for overcoming such antagonism. Actual experience in desegregation indicates that the contrary is true. Desegregation has been accomplished successfully over a relatively short span of time in Louisville, Kansas City, St. Louis, Washington, D. C., Wilming ton and Baltimore. On the other hand, court approval of a drawn out plan in Little Bock apparently did nothing to foster community acceptance. School officials in some of the former communities have clearly stated the compelling- reasons that led them to decide against a protracted plan and their satisfac- tioiTwith the results of the plans adopted. Carmichael and James, The Louis ville Story, especially 83 (1957) : “Experience elsewhere indicated that a partial or geographic change par ticularly might lead to mushrooming opposition. Desegregating a grade at a time or several grades at a time obviously would increase social con fusion by having some children in a single family attend mixed schools while others remained in segregated schools. Administrative difficulties, too, obviously would be compounded by any partial program. And we decided that universality of participation by the entire school staff from the very beginning would greatly increase the chances of success.” IV Southern School News No. 11, p. 3 (May 1958). [Washington, D. C. School Board President Tobriner: “I thank goodness that we were smart enough or shall I say lucky enough to avoid the gradualism in integration which so many people urged upon us.”] The testimony of appellants’ witnesses (App. 177-178, 197-200, 210-211) and leading race relations authorities further document these conclusions. Ex amination of actual instances of desegregation reveals that segmentalized de segregation, including progressive desegregation by grades, does not allay anxieties or doubts, or assure greater community acceptance of desegregation. Clark, “Desegregation: An Appraisal of the Evidence,” 9 Journal of Social Issues 1-68, especially 45-46 (1953) ; Dean and Rosen, A Manual of Inter group Relations 57-105, especially 70 (1955) ; Thompson, Ed., “Educational Desegregation, 1956,” 25 Journal of Negro Education (1956) ; Williams and Byan, Schools in Transition 241-244 (1954). Bather, such methods appear to mobilize the resistance of those white persons immediately affected, since they feel themselves arbitrarily selected as an “experimental” group. The remainder of the community then observes con flict rather than peaceful adjustment; anxieties are increased and resistance 15 might “call for elimination of a variety of obstacles in making the transition to school systems operated in ac cordance with the constitutional principles set forth in our May 17,1954 decision.” District courts were authorized to consider “problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school dis tricts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regula tions which may be necessary in solving the foregoing problems.” 349 U. S. at 300, 301. But the District Courts were directed to require “a prompt and reasonable start toward full compliance” and to take such action as was necessary to bring about the end of racial segregation in the public schools “with all deliberate speed.” Ibid. Time might be allowable, the Court held, but “ [t]he burden rests upon the defendants to establish that such time is necessary in the public in terest and is consistent with good faith compliance at the earliest practicable date.” (Emphasis added.) Ibid. stiffens. This reaction may become self-perpetuating. Moreover, an extended time schedule may be interpreted by the community as indicative of hesitancy about ending segregation or of an intention to evade compliance. Here again, delay may foster resistance rather than acceptance. See authorities cited above. Adoption of a segmentalized plan often is predicated upon the erroneous assumption that changes in attitude must precede desegregation. Experience indicates that public acceptance often follows, rather than precedes, the enforce ment of non-segregation and that the resistance anticipated is often much greater than that actually encountered when desegregation occurs. Allport, The Nature of Prejudice (1954) ; Chein, Deutseh, Hyman and Jahoda, Ed., “Consistency and Inconsistency in Intergroup Relations,” 5 Journal of Social Issues 1-63 (1949); Kutner, Wilkens and Yarrow, “Verbal Attitudes and Overt Behavior Involving Racial Prejudice,” 47 Journal of Abnormal and Social Psychology 649-652 (1952) ; La Piere, “Attitudes v. Action,” 13 Social Forces 230-237 (1934) ; Lee, “Attitudinal Multivalenee in Culture and Personality,” 60 American Journal of Sociology 294-299 (1954-55); and see other authorities cited above. Thus actual experience establishes that delay, far from facilitating a change in community attitudes, often serves to impede it. 16 These principles were reaffirmed in Cooper v. Aaron, -----U. S .------ , 3 L. ed. 2d 5, 10-11. There the Court said at 10-11: Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, ex cludes hostility to racial desegregation), might con clude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authori ties to make sure that they had developed arrange ments pointed toward the earliest practicable comple tion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, dili gently and earnestly pursued, to eliminate racial seg regation from the public schools could constitute good faith compliance. (Emphasis added.) In the instant case, appellees made no attempt to show that twelve years was the “earliest practicable date” for completion of desegregation, nor did the Court below find that such a showing had been made. Note was made of the sincerity of the appellees despite the fact that on Febru ary 18, 1958, the Court had found that the Board was com mitted to a policy of continued segregation (App. 94). This finding was based upon the fact that appellees had sought delay at every stage of the litigation and had put forward schemes designed solely to evade compliance with 17 desegregation.2 Even if these circumstances are not deemed to reflect upon the good faith of the appellees, good faith alone is not sufficient to sustain their plan. Appellees have not suggested the existence of any ad ministrative obstacle within the limited category author ized by the Supreme Court for consideration. The Super intendent testified that a homogeneous grouping of students was a desirable educational goal and that if large numbers of students were involved in a speedier plan for desegre gation, students of different backgrounds and levels of achievement might be placed in the same classes (App. 115). But he admitted that homogeneity was not precisely a racial matter and that it was a continuing problem (App. 118-119, 124-125). In fact, by his own testimony, large numbers of students would not be involved in immediate desegregation (App. 87). And in any case, no suggestion was made that twelve years would permit the taking of any specific step to solve the problem.3 The former Superin 2 When this suit was first brought in 1955, the Board sought and obtained a continuance on the ground that it needed further time for study (App. 47). When the ease was called at the October 1956 term, the Board moved unsuccess fully to postpone it until after the meeting of the 1957 Tennessee legislature (App. 69). The Board then submitted a plan which provided only for desegre gation of Grade One, did not provide any date certain for the submission of a complete plan to abolish segregation, and embodied the racial transfer system previously discussed (App. 47-48, 53). Next, the Board sought a declaratory judgment to sustain the validity of a statute which authorized the maintenance of segregated schools in accordance with the wishes of parents (App. 73). When this plea was rejected the Board resubmitted it in substantially the same form as a “complete plan to abolish segregation” (App. 90, 97-98). Then, the Board sought to dismiss the action entirely, because of an alleged failure by appellants to exhaust administrative remedies (App. 91). These pleas having failed, the Board, under mandate to produce a plan, submitted the twelve-year program now in controversy. 3 I t was not contended that the achievement levels of Negro students were uniformly below those of white students. Such a statement would have no basis in fact (App. 189-190). I f made, it would constitute an additional in dictment of segregated schools and would hardly suggest that a solution was to be found in perpetuating segregation and depriving all children now in the schools of their rights to a nonsegregated education. 18 tendent of Schools indicated that it was his belief, based on experience, that reconciling the attitudes of some teach ers to desegregation might prove difficult. No evidence was offered to demonstrate that delay would solve this putative problem and no specific measures were proposed to remedy it. None of these matters were within the “problems relat ing to administration” listed by the Supreme Court as affording possible grounds for not requiring immediate desegregation. Brown v. Board of Education, supra, at 300, 301. No attempt was made by appellees to connect these matters to their twelve-year plan or to put forward a specific program for utilizing time to resolve them. The twelve year program was predicated solely upon commu nity hostility. If this is removed as a consideration, there is nothing in the record which indicates that desegregation “at the earliest practicable date” cannot occur immediately. Lower federal courts, while conceding the good faith of the school boards involved, have rejected twelve year plans identical to the one here offered, Mitchell v. Pollock, 1 Race Eel. L. Rep. 1038 (W. D. Ky. 1956); Pierce v. Board of Education of Cabell County (S. D. W. Ya. 1956), unre ported ; and have ordered desegregation of school systems either immediately or within one year. Willis v. Walker, 136 F. Supp. 177 (W. D. Ky. 1955); McSwain v. County Board of Education, 138 F. Supp. 570 (E. D. Tenn. 1956); Shedd v. Board of Education of Logan County, 1 Race Rel. L. Rep. 521 (S. D. W. Va. 1956); Mitchell v. Pollock, 2 Race Rel. L. Rep. 305 (W. D. Ky. 1957); Pierce v. Board of Edu cation of Cabell County, supra. In the Pollock case, the Court, noting that the school board had acted in good faith, that the twelve year plan was presented after thorough consideration and that some advances toward desegrega tion had been made, still rejected the plan, subsequently 19 refused to accept a four-year plan and, finding that the only justification for delay was community opposition, ordered that all schools be desegregated at the next se mester. This Court has refused to accept generalized and un substantiated pleas for delay even when made in good faith, has ruled that factors like overcrowding in white schools provide no excuse for the refusal to admit quali fied Negro applicants, and has held that a trial court has no discretion to continue the deprivation of basic human rights by denying an injunction. Clemons v. Board of Education of Hillsboro, 228 F. 2d 853 (6th Cir. 1956); Booker v. State of Tennessee Board of Education, 240 F. 2d 689 (6th Cir. 1957), cert, denied 353 U. S. 965. B. The C onstitu tional R ights o f A ppellan ts. The Court below contended that approval of the twelve- year plan did not involve a denial, but merely a postpone ment of the constitutional rights of appellants and those similarly situated. When a similar assertion was made on September 11, 1958 in oral argument by counsel for the school board in Cooper v. Aaron, this colloquy ensued: The Chief Justice: But if we stop that program, we are denying this same right to approximately 40 percent of the children of your community, aren’t we! Mr. Butler: We take the position that you are not denying the right. You are delaying the fulfillment of a constitutional right which you have said they have, but not the denial of the right as a class action, which this is. The Chief Justice: Well, this decision, the Brown decision, was in 1954. This is 1958. Two years and a half will bring it up almost to 1961. Now if all those children are denied the right to go to the elementary 2 0 schools, aren’t they being denied permanently and finally a right to get equal protection under the laws during their primary grade years! (Tr. 49) Nothing more graphically illustrates the injustice of this plan and its failure to meet minimum constitutional standards than the fact that under it, all of the appellants and every Negro child who was in a Nashville public school prior to September, 1957, will forever be denied the right to an unsegregated education.4 Perhaps it is conceivable that in some case a strong enough showing of administra tive problems could be made to justify denying to a whole generation of school children their constitutional rights to attend unsegregated public schools. No such showing has been made here. i Appellees sought to minimize the injury caused to appellants by delay by demonstrating the physical equality of white and Negro schools (App. 19). Of course, this contention, even if true, does not mitigate the harm caused by segregation. Brown v. Board of Education, 347 U. S. 483. But even this claim was refuted by the evidence (App. 197-198, 228-229). 2 1 RELIEF For the reasons hereinabove indicated, it is respect fu lly subm itted that the judgm ent o f the Court below should be reversed and rem anded w ith directions to issue an in ju nction restraining appellees from refusing to adm it appellants and all those sim ilarly situated to unsegregated public schools in Septem ber, 1 9 5 9 . Respectfully submitted, Z. A l e x a n d e r L ooby A v on N. W il l ia m s , J r . 327 Charlotte Avenue Nashville 3, Tennessee T h u b g o o d M a r s h a l l Suite 1790 10 Columbus Circle New York 19, New York Counsel for Appellants W il l ia m L . T aylor Of Counsel