Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Brief for Appellants

    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