Mapp v. Board of Education of the City of Chattanooga, Tennessee Brief for Appellees

    I n  THE

littti'ii States ©our! of Appals
S ixth  Circuit 

No. 14,444

J ames J onathan M app and D eborah L ’T anya M app, Minors, 
by James R. Mapp, their father and next friend, et al.,

Plaintiffs-Appellees,
—vs.—

T he B oard op E ducation op the City  of Chattanooga, 
H amilton County, T ennessee, el al.,

Defendants-Appellants.

BRIEF FOR APPELLEES

Z. A lexander L ooby 
A von W illiams

327 Charlotte Avenue 
McClellan-Looby Building 
Nashville, Tennessee

T hurgood M arshall 
Constance B aker M otley 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs-Appellees



1. In a school desegregation suit, where sehool authori­
ties admit that they have continued to operate a biracial 
school system and have no present plan for ending actual 
segregation, may the District Court, upon motion by both 
parties for summary judgment, enter judgment with re­
spect to the undisputed facts and order submission of a 
desegregation plan and a hearing thereon ?

The District Court answered this question “ Yes.”

Appellees contend the answer should be “Yes.”

2. Should appellees have been required to exhaust the 
administrative remedy provided by the Tennessee Pupil 
Assignment Law prior to invoking jurisdiction of the court 
below?

The District Court answered this question “ No.”

Appellees contend the answer is “ No.”

Counter-Statement of Questions Involved

1



11

INDEX TO BRIEF

PAGE

Counter-Statement of Facts ............................................  1

A rgument

I. In a school desegregation suit, where school au­
thorities admit that they have continued to oper­
ate a biracial school system and have no pres­
ent plan for ending actual segregation, may the 
District Court, upon motion by both parties for 
summary judgment, enter judgment with re­
spect to the undisputed facts and order submis­
sion of a desegregation plan and a hearing there­
on?

The District Court answered this question “ Yes.” 
Appellees contend the answer should be “No” .... 10

II. Should appellees have been required to exhaust 
the administrative remedy provided by the Ten­
nessee Pupil Assignment Law prior to invoking 
the jurisdiction of the court below?

The District Court answered this question “ No.”

Counter-Statement of Questions Involved ...................  i

Appellees contend the answer is “ N o” ............... 21

Conclusion ............................ ...........................................  24

Certificate of Service .......................................................  25



1X1

PAGE

T able op Cases

Borders v. Rippy, 247 F. 2d 268 (1957) .......................  20
Brown v. Board of Education of Topeka, 347 U. S.

483 (1954) ________________________________ ..3,10,13,24
Brown v. Board of Education of Topeka, 349 IT. S.

294 (1955) .......................................... ............... 3,10,13,14,
15,16, 20, 24

Cooper v. Aaron, 358 IT. S. 1 (1958) .....................10,13,16,
17,18, 20

Dove v. Parham, 271 F. 2d 132 (8th Cir. 1959) ...........  23
Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960)  .........  20

Gibson v. Board of Public Instruction of Dade County,
Fla., 246 F. 2d 913 (5th Cir. 1957) .............. ................  22

Gibson v. Board of Public Instruction of Dade County 
(5th Cir. 1959), 272 F. 2d 763 .... .............................. 22, 23

Holland v. Board of Public Instruction of Palm Beach 
County, Fla., 258 F. 2d 730 (5th Cir. 1958) ...............  22

Kelley v. Board of Education of the City of Nashville 
(M. D. Tenn. 1958), 159 F. Supp. 272, aff’d 270 F.
2d 209 (6th Cir. 1959), cert. den. 361 IT. S. 924 ....22,23

Mannings v. Board of Education of Hillsborough 
County, Fla., 277 F. 2d 370, 372 (5th Cir. 1960) .......  23

Norwood v. Tucker, No. 16586, decided March 2, 1961,
8th C ir .,------ F. 2 d .........  ..............................................  23

Williams v. Kansas City, 205 F. 2d 47 (1953), cert, 
den., 346 U. S. 826 ........... ...........................................  24

Other A uthorities

Rule 56, Federal Rules of Civil Procedure ....
Tennessee Code Annotated, §§49-1741-49-1763

11
21



INDEX TO APPENDIX
PAGE

Statement of March 31, 1956 .............    4b

Statement of July 9, 1958 ................................................... 8b

Statement of March 7, 1960 .............................................   10b

Excerpts From Depositions .............................................-  12b

W it n e s s e s :
Pages of
Original Printed
Beeord Page

Dr. John Walter Letson
Direct .................................................... 3-37 12b

Recalled
Cross.................................................... 105-108 57b
Redirect ..................................    108-117 60b

William D. Leber
Direct ................................................... 47-76 23b
Cross.....................................   76-87 44b
Redirect ............................................... 87-92 53b

Dean Petersen
Direct .......................................    120-126 64b
Cross .................................................. 126-135 68b
Redirect .............................................. 135-141 75b
Recross .............................................. 141-142 79b

Mrs. Sammie C. Irvine
Direct .................................................. 143-145 80b
Cross ................................................  146 81b

Supplementary Statement of October 12, 1955 ...........  lb



V

Pages of 
Original Printed
Record Page

George C. Hudson
Direct ................................ ................  148-152 82b

Kaymond B. Witt
Direct ................................ ................  153-155 86b
Cross ................................ ................  155-158 88b
Redirect ............................ ................  159-168 90b



In the

MnxUh Elates CUxiitrt at Appeals
S ixth  Circuit 

No. 14,444

J ames J onathan M app and D eborah L ’T anya M app, Minors, 
by James E. Mapp, their father and next friend, et al.,

Plaintiff's-Appellees,
■—vs.—

T he B oard of E ducation of the City of Chattanooga, 
H amilton County, T ennessee, et al.,

Defendants-Appellants.

BRIEF FOR APPELLEES

Counter-Statement of Facts

Appellees do not controvert the statement of facts con­
tained in brief for appellants. However, appellees believe 
that appellants’ statement should be supplemented by the 
following facts appearing in the record.

After the complaint was filed on April 6, 1960, appellees 
took the depositions of the Superintendent of Schools and 
five members of the appellant Board of Education on June 
1, I960.1 This testimony, which was taken before the an­
swers were filed, established, conclusively, that appellants 
have continued to operate a compulsory biracial school 
system in the City of Chattanooga.

1 The Superintendent resigned following the taking of his deposition and 
his successor was substituted by order dated 7/20/60.



2

Succinctly, this testimony disclosed that dual sets of 
school zone lines are maintained, one set relating to the 
attendance area assigned to each Negro school and one set 
relating to the attendance area assigned to each white 
school (Dep. pp. 5-6); that white children are assigned to 
school upon the basis of the proximity of their residences 
to the nearest available white school and the Negro children 
are likewise assigned with respect to Negro schools (Dep. 
pp. 5, 8, 9, 17-18); that separate elementary, junior high 
and senior high schools are maintained for Negro and white 
students (Dep. pp. 109-110); that when there is a decrease 
in the white school population in a particular school zone 
and a corresponding increase in the Negro school popula­
tion, the white school is often converted to Negro use and 
white students in the area reassigned to other white schools 
(Dep. pp. 9-10); that school personnel, with the exception 
of white supervisory and so-called “ Helping Teachers” , 
are assigned on the basis of race and color (Dep. 18-20); 
that completely segregated musical and athletic events 
are maintained (Dep. pp. 14-16); that the Chattanooga 
High School, which is the white high school, is the city’s 
primary high school with academic and business curricula 
superior to those in the Howard High School which is the 
Negro and secondary high school; that the Chattanooga 
High School has many more extra curricula activities than 
the Negro high school and enjoys accreditation by the 
Southern Association of Colleges and Secondary Schools, 
whereas the Howard High School does not enjoy such ac­
creditation (PI. Exh. 1, 3 ); that the Board maintains a 
technical high school, Kirkman, which is limited to white 
students and that the curriculum offered there is superior 
to the “Vocational Offerings” included in the Howard High 
School curriculum (Dep. pp. 11-12, PL Exhs. 1 and 2 ); that 
separate schools for physically and mentally handicapped 
Negro and white children are maintained (Dep. pp. 10-11);



3

that the salaries of Negro and white teachers have been 
equalized; that expenditures for Negro and white children 
in the school system are the same; and that the budgets 
do not contain racial designations (Dep. p. 96, see also 
Appellants’ App. pp. 15a, 17a).

The testimony on depositions also established that on 
July 22, 1955, appellants adopted a statement of policy 
announcing the decision of the Board of Education of the 
City of Chattanooga to comply with the decision of the 
United States Supreme Court in the School Segregation 
Cases. Brown v. Board of Education of Topeka, 347 U. S. 
483 (1954); 349 U. S. 294 (1955) (Appellants’ App. p. 25a).

Following this initial declaration, on October 12, 1955, 
the Board issued another statement reaffirming its inten­
tion to comply with the Supreme Court’s decision and an­
nouncing its determination to appoint an interracial ad­
visory committee to assist the Board in its study of the 
problems it faced and in finding solutions thereto (Appel­
lees’ App. pp. lb-3b). This statement reveals that the then 
regular chairman of the Board had “adopted a position 
contrary to the policy of the Board” but would, neverthe­
less, participate in the Board’s deliberations (Appellees’ 
App. p. 3b). The chairman withdrew his concurrence in the 
decision to desegregate following the July 22, 1955 an­
nouncement (Appellants’ App. p. 18a). The present chair­
man of the Board has likewise taken a public position 
contrary to the Board’s announced intention to desegregate 
but nevertheless participates in the Board’s deliberations 
and policy statements (Appellees’ App. p. 79b). The Oc­
tober 12, 1955 statement also disclosed the basic miscon­
struction of the Supreme Court’s second Brown decision 
on the part of the Board to which it still adheres. There 
the Board said in referring to the Supreme Court’s deci­
sion :



4

Once the Court recognized that the problem varied 
with each community, it directed each school board to 
counsel with the people of its own community in order 
to determine exactly what the problem is in that par­
ticular community. Now, as we read the Court’s deci­
sion, this means that the Court recognizes that racial 
discrimination can end only when the majority of the 
citizens are willing for it to end. That is why we want 
to secure the view of our fellow citizens with the aid 
of the interracial advisory committee, representing our 
best citizens of varying points of view. We will wel­
come interested groups from all over the City to come 
and discuss this most serious problem with us and the 
advisory committee. We want ideas and suggestions 
from everyone; for, as we understand the Supreme 
Court’s decision, this is what the Court intended for 
us to do first. (Emphasis added.) (Appellees’ App. 
p. 2b).

Thereafter, an interracial advisory committee was ap­
pointed consisting of 40 persons, 12 of whom were Negroes 
(Appellees’ App. p. 28b). At the organizational meeting of 
this committee, on November 15, 1955, the chairman of the 
Board’s committee of the whole read a prepared statement 
regarding the committee’s purpose, the meaning of the 
Supreme Court’s decision, and the Board’s responsibility 
(Appellants’ App. p. 29a). However, in addition to the 
members of the committee, members of the public attended 
this initial meeting and disrupted it with “name calling” 
and the “ throwing of stink bombs” (Appellees’ App. p. 
28b). The Board has not called a public meeting of that 
committee since that date on the ground that at that time 
the subject of school desegregation was so filled with emo­
tion that it could not hold a public meeting (Appellees’ App. 
pp. 29b-30b). However, it has not held any private meet-



5

mgs of the committee since that first meeting in 1955 either 
(Appellees’ App. p. 29b).

About for and one half months after the first meeting 
of the interracial advisory committee, the Board, on March 
31, 1956, issued another statement in which it flatly post­
poned, for an indefinite period of time, its intention to de­
segregate.

This statement begins with the following paragraph:

Events in the last year have convinced the Chat­
tanooga Board of Education that the community will 
not accept any form of integration within the city 
schools at any time in the near future. We, therefore, 
take this opportunity to report to the community our 
decision to postpone any change in the public schools 
for a period of at least a few years—probably five or 
more. Because of organizational problems confronting 
the schools now, the decision could no longer be post­
poned, and we feel that the public is entitled to have 
this information without delay (Appellees’ App. p. 4b).

This paragraph is followed by two statements which 
again expose the Board’s basic misconception of the terms 
of the Supreme Court’s second opinion in the Brown case. 
These statements read as follows:

We believe this (the postponement announced in the 
preceding paragraph) to be in harmony with the 
spirit of the two U. S. Supreme Court rulings on the 
question.

We believe our decision will not harm any child 
of either race. We believe this action to be a good 
faith compliance with the supreme law of the land (Ap­
pellees’ App. p. 4b).



6

More than two years after the announced postponement, 
on June 11, 1958, appellee Mapp and other Negro citizens 
requested the Board, in writing, to desegregate the schools 
at the beginning of the Fall Term 1958 (Plaintiffs’ Exh. 9 
attached to Letson Deposition). This request was formally 
denied in a Board statement dated July 9, 1958 (Appellees’ 
App. p. 8b).

A similar request to desegregate the schools was made in 
a letter dated February 24, 1960 and signed by each of the 
adult appellees (Plaintiffs’ Exh. 13, attached to Letson 
Deposition). Each adult appellee also appeared in person 
in the office of the Superintendent and requested reassign­
ment of his or her child from Orchard Knob School (Negro) 
to Gflenwood School (white) (Appellee’s App. p. 20b). 
These oral and written requests to desegregate were like­
wise denied by the Board in formal statement issued on 
March 7, 1960 (Appellees’ App. p. 10b).

The Superintendent testified on his deposition that the 
Glenwood School was a school to which appellees children 
could have been assigned in terms of space, but the re­
quests for reassignment were denied because, as the Board’s 
statement makes clear, appellants had not abandoned the 
biracial school system (Appellees’ App. pp. 21b-22b).

The depositions also established that, other than the so- 
called “ plan of elucidation” , which, since 1955, has con­
sisted of discussing desegregation privately, informally, 
and entirely off the record with citizens and citizen groups, 
appellants have not adopted any other plan of desegrega­
tion (Appellees’ App. pp. 13b-15b, 24b, 34b-35b, 65b-66b).

Moreover, the depositions established, conclusively, that 
on March 31, 1956 appellants postponed, indefinitely, their 
decision to desegregate solely because of the white com­
munity’s opposition to desegregation and the effect this



7

might have on the school system (Appellees’ App. pp. 53b- 
54b, 60b-61b, 68b, 81b-85b, 92b-97b).

Following the depositions, appellants filed their answers 
on June 7, 1960. In their answers appellants admitted that 
they have continued to operate a compulsory biracial school 
system in the City of Chattanooga (Appellants’ App. p. 
15a, Para. 5 of Answer of Witt, et al.) and, since 1955, 
“have been in the continuous process of receiving the re­
action and the response of the community to the decision of 
the Supreme Court” and the Board’s decision to comply 
(Appellants’ App. p. 18a).

On June 20, 1960 appellees filed their motion for sum­
mary judgment on the ground that there was no genuine is­
sue as to any material fact (Appellants’ App. p. 35a). 
Shortly thereafter on July 8, 1960, appellants also moved 
for summary judgment (Appellants’ App. p. 53a). The 
latter motion was based upon three grounds:

First, that appellees may not maintain this action as a 
class action for all other Negro pupils in the City of Chat­
tanooga since no other Negro pupils, other than appellees, 
had made application for reassignment to a white school.

Secondly, appellees had not exhausted the administra­
tive remedies provided by the Tennessee Pupil Assignment 
Law and had not prayed for any relief as individuals.

Thirdly, if the suit be treated as in the nature of an 
appeal from the ruling of the Board with respect to ap­
pellees’ applications for reassignment, the Board did not 
abuse its discretion in denying appellees admission to Glen- 
wood School since other schools were closer and more con­
venient to them.

The court below, in denying appellants’ motion, ruled 
that this action may be maintained as a class action for 
the reason that the individual applications of appellees 
were not for the purpose of setting up a condition preee-



8

dent to asserting a constitutional right, but were to confirm 
appellants’ program of operating compulsory biracial 
schools with intent to continue (Appellants’ App. p. 98a).

The court below also ruled that appellants’ claim that 
appellees should have exhausted their administrative 
remedy prior to resort to the federal judiciary failed for 
a number of reasons. However, the Court concluded that 
it was sufficient to point out that appellants were not operat­
ing under the Tennessee Pupil Assignment Law because 
there is one zoning for white pupils and another zoning 
for Negro pupils and the record discloses that the denials 
by appellants of the admission of appellees’ children to 
school, where all students are white, were not because of 
failure to comply with the Tennessee Pupil Assignment 
Law but because of race and color (Appellants’ App. pp. 
98a-99a).

The principle defense of the Board, as the memorandum 
opinion of the court below on motion for summary judg­
ment points out, was that more time is needed for “ . . . 
carrying forward a plan for elucidating, assessing and ulti­
mately solving, with all deliberate speed, the problem of 
achieving a desegregated school system in Chattanooga, 
Tennessee” (Appellants’ App. p. 99a).

The Court also noted in its memorandum appellants’ 
primary prayer for relief: “Defendants therefore in all 
good faith pray the Court to enter its decree approving 
defendants’ plan for elucidation, thereby giving the neces­
sary time in which to educate, reconcile, and bring about 
acceptance of a plan of desegregation of the schools” (Ap­
pellants’ App. p. 24a).

The court below concluded that, “ This [was] simply a 
request for postponement of the trial” (Appellants’ App. 
p. 99a).



9

Judge Darr also ruled that all of the directives to the 
District Courts contained in the Supreme Court’s second 
Brown decision “ are guides for framing a judgment and 
not for procedure before trial.” Therefore, he ruled, ap­
pellants’ reasons and requests for delay had no bearing 
upon the issue then before the court (Appellants’ App. pp. 
99a-100a).

In granting appellees’ motion for summary judgment the 
court found that, “ There are no issues of fact in this case. 
The schools of the City of Chattanooga are biracially 
operated and the defendants continue to decline to de­
segregate them, gradually or completely”  (Appellants’ App. 
p. 100a).

The relief granted was the alternative relief prayed 
for by appellees in their complaint (Appellants’ App. pp. 
13a-14a) that is, the court directed appellants, by order 
dated November 3, 1960, to submit a plan for desegregat­
ing the schools on or before December 20, 1960, and ordered 
a hearing on the plan on January 9, 1961.

From this order appellants appeal to this Court.



10

A R G U M E N T

I.

In a school desegregation suit, where school authori­
ties admit that they have continued to operate a biracial 
school system and have no present plan for ending 
actual segregation, may the District Court, upon motion 
by both parties for summary judgment, enter judgment 
with respect to the undisputed facts and order submis­
sion of a desegregation plan and a hearing thereon?

The District Court answered this question “ Yes.”
Appellees contend the answer should be “ Yes.”

This suit was instituted by Negro citizens of Chatta­
nooga, Tennessee against the Board of Education of that 
city for the purpose of securing compliance with the Su­
preme Court’s decisions holding racial segregation in the 
public schools unconstitutional. Brown v. Board of Educa­
tion of Topeka, 347 U. S. 4S3 (1954); 349 U. S. 294 (1955), 
Cooper v. Aaron, 358 U. S. 1 (1958).

The action was instituted on April 6, 1960, almost six 
years after the Supreme Court’s first decision in the Brown 
case, supra, of May 17, 1954. Following the Supreme 
Court’s second decision in the Brown case of May 31, 1955, 
the Board of Education of the City of Chattanooga, on 
July 22, 1955, announced its decision to comply with the 
Court’s decisions (Appellants’ App. p. 25a). This decision 
was among the first compliance pronouncements made by 
a school board affected by that momentous opinion.

Appellees do not question the good faith of the Board 
with respect to its pronouncement at that time. However, 
the evidence considered by the court below precludes any 
doubt that the Board’s initial decision to comply had been



11

abandoned and that the Board had expressly resolved to 
postpone desegregation indefinitely. The Board’s decision 
to postpone desegregation indefinitely was formally an­
nounced by it on March 31, 1956 in a policy statement 
(Appellees’ App. p. 4b). That decision, based solely on the 
belief that a majority of the white citizens of Chattanooga 
opposes the Board’s decision to desegregate, and will not 
support it, is the present position of the Board (Appellees’ 
App. pp. 90b, 94b-95b).

As pointed out in the Counter-Statement of Facts, supra, 
after the complaint was filed and depositions of the Super­
intendent and five Board members were taken, the Board 
and the Superintendent filed answers to the complaint in 
which they admitted that they have continued to operate 
a biracial school system in the City of Chattanooga (Ap­
pellants’ App. p. 15a, Paragraph 5 of answer of Witt, 
et al.)

Appellees do not understand appellants to question the 
propriety of summary judgment with respect to the ques­
tion whether the schools are being operated on a racially 
segregated basis at the present time. As appellees under­
stand appellants’ contention on this appeal, it is that the 
court below erred in refusing* to hear evidence on appel­
lants’ actions since May, 1955 which appellants claim con­
stitute a prompt and reasonable start toward compliance 
with the Supreme Court’s decisions (Brief for Appellants, 
p. 9).

Upon motion for summary judgment, the court below 
was empowered by Rule 56, Federal Rules of Civil Pro­
cedure, to consider any depositions on file. The depositions 
referred to above were filed on June 14, 1960 and the mo­
tions for summary judgment were heard on July 20, 1960. 
During the course of the depositions, the Superintendent



12

and Board members testified, at great length, in response 
to questions by counsel for appellees as to the actions of 
the Board since May 1955. Moreover, the Superintendent 
and the Board members were cross-examined by their own 
counsel, at similar great length, as to their actions since 
1955. Appellees did not dispute this testimony.

This testimony was omitted from appellants’ appendix 
but has been reproduced by appellees in their appendix for 
the benefit of this Court.

The action of appellants since 1955 consisted of the adop­
tion of six statements, all of which are contained in Plain­
tiffs’ Exhibit 8 attached to the deposition of the Superin­
tendent of Schools, Dr. J. W. Letson. Two of these 
statements were attached to the answer filed by five school 
board members, i.e., the statement of July 22, 1955 and the 
statement of November 15, 1955 (Appellants’ App. pp. 25a- 
34a). The other statements, i.e., the statements dated Oc­
tober 12, 1955, March 31, 1956, July 9, 1958 and March 7, 
1960 have been reprinted in Appellees’ App. pp. lb -llb .

In addition to issuing statements, the Board appointed 
an interracial advisory committee composed of Negro and 
white citizens. This committee met once, on November 15, 
1955. At that organizational meeting, the Board chairman 
read the statement dated November 15, 1955 (Appellants’ 
App. p. 29a). The meeting was disrupted by members of 
the public. No one was injured, but the meeting was, of 
course, ended (Appellees’ App. pp. 26b, 28b).

Following this incident, the Board’s other actions since 
1955 have consisted wholly and solely of individual Board 
members discussing informally, off-the-record and privately 
with white and Negro citizens the Supreme Court’s deci­
sion, with the commendable purpose of attempting to “ edu­
cate, reconcile and bring about acceptance of a plan of de­
segregation for the schools.”



13

Not only was the evidence as to what appellants had 
done since 1955 uncontroverted before the court below, but 
the court’s memorandum opinion expressly ruled on its 
probative value (Appellants’ App. pp. 99a-100a).

Moreover, on this appeal appellants have not disclosed 
how or what proof the court below refused to hear as to 
their actions since May 1955. The record discloses that ap­
pellants as well as appellees moved for summary judgment 
after the answers were tiled and the depositions were taken 
(Appellants’ App. pp. 35a-53a).

In granting summary judgment for appellees, the court 
did not issue an injunction immediately enjoining all segre­
gation in the public schools of the City of Chattanooga as 
requested by appellees (Appellants’ App. p. 13a). The 
Court granted the alternative relief which had been prayed 
for by appellees in their complaint (Appellants’ App. pp. 
13a-14a). It directed appellants to submit a plan of desegre­
gation and ordered a hearing on appellants’ proposed plan.

This Court has already ruled in denying appellees’ mo­
tion to dismiss this appeal as premature, frivolous and 
moot, that the propriety of the District Court’s order is 
now appropriately before this Court for review.

Appellees’ contention on this appeal is that the order of 
the court below is fully in accord with the Supreme Court’s 
directives to the District Courts with respect to the type of 
relief to be afforded in such cases. Brown v. Board of Edu­
cation of Topeka, supra; Cooper v. Aaron, supra.

First, it is obvious that the court below followed the 
Supreme Court’s admonition that the vitality of the con­
stitutional principles announced by it in the first Brown 
decision cannot be allowed to yield simply because of dis­
agreement with them.



14

In its second Brown decision, 349 U. S. 294, the Supreme 
Court said, after reviewing the constitutional principles 
announced in its first decision:

Full implementation of these constitutional princi­
ples may require solution of varied local school prob­
lems (emphasis added) (at 299).

The Court then went on to say:

School authorities have the primary responsibility 
for elucidating, assessing and solving these problems; 
. . .  (emphasis added) (at 299).

Continuing, the Court pointed out that:

At stake is the personal interest of the plaintiffs in 
admissions to public schools as soon as practicable on 
a nondiseriminatory basis. To effectuate this inter­
est may call for elimination of a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles . . . (em­
phasis added) (at 300).

The Court then went on to admonish, however, that:

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 constitu­
tional principles cannot be allowed to yield simply be­
cause of disagreement with them (emphasis added) 
(at 300).

There can be no question that in this case the school au­
thorities have allowed the vitality of the constitutional 
principles announced in the Supreme Court’s decisions to



15

yield simply because the majority of the white community 
is in disagreement with them (Appellees’ App. 88b-97b).

Continuing, the Court said:

While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full 
compliance with our May 17, 1954 ruling. Once such 
a start has been made, the courts may find that addi­
tional time is necessary to carry out the ruling in an 
effective manner (emphasis added) (at 300).

As appellees understand appellants’ position, appellants 
believe that the sentences just quoted entitle school au­
thorities to an indefinite period of time in which to per­
suade the majority of the white community that desegrega­
tion is inevitable and some plan of desegregation must be 
accepted by it and that such “ elucidation” constitutes a 
prompt and reasonable start.

Appellees say that the Supreme Court’s decision can­
not be so construed. The Supreme Court’s decision makes 
clear that time may be allowed for solving varied “ school 
problems” but not for persuading a recalcitrant minority 
or majority that the opinion of the Supreme Court is cor­
rect and must be tolerated. The Court specifically enu­
merated the “ school problems” which the courts may con­
sider. After pointing out that the burden rests upon de­
fendants to establish that additional time is needed in the 
public interest, once a start has been made, and that such 
additional time is consistent with good faith compliance 
at the earliest practicable date, the Court said:

To that end, the courts may consider problems re­
lated to administration, arising from the physical con­



16

dition of the school plant, the school transportation sys­
tem, personnel, revision of school districts and at­
tendance 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 (emphasis added) (at 300).

Thus, it is clear that the Court did not say, in the second 
Brown decision, that the problem of community opposi­
tion must first be overcome by school authorities or that 
such hostility may be weighed by the courts. In fact, com­
munity opposition was expressly precluded from considera­
tion, and this was emphatically reiterated in Cooper v. 
Aaron, 358 U. S. 1, 7 (1958).

Secondly, as to that part of the order entered by the 
court below directing submission of a plan and ordering 
a hearing thereon, it is likewise obvious that the court 
below followed the directives of the Supreme Court. In 
the second decision in the Brown case the Court said:

They (the courts) will also consider the adequacy of 
any plans the defendants may propose to meet these 
problems (the problems enumerated above) and to 
effectuate a transition to a racially nondiseriminatory 
school system (at 301).

A similar directive is contained in the third decision of 
the Supreme Court involving school desegregation, but 
which is not cited by appellants in their brief, Cooper v. 
Aaron, supra. In that decision the Court voided the order 
of a District Court which suspended, for two and one-half 
years, a court-approved plan of desegregation of the pub­
lic schools in Little Rock, Arkansas. A  unanimous Court 
there also reaffirmed the principle announced in the first 
and second Brown decisions (at 19). Moreover, at the out­



17

set of that opinion, the Court reiterated that on May 17, 
1954, it had decided that enforced racial segregation in the 
public schools is a denial of the equal protection of the 
laws and that on May 31, 1955 it had rendered a decision 
with respect to the formulation of decrees by District 
Courts to effectuate its May 17th decision. The Court then 
quoted the language cited above from its second deci­
sion of May 31, 1955 and added to it the following:

Under such circumstances, 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 segre­
gation in the public schools ‘with all deliberate 
speed’ ” (at p. 7).

The Supreme Court then pointed out that in many loca­
tions compliance with its decision would require “ the im­
mediate general admission of Negro children, otherwise 
qualified as students for their appropriate classes, at par­
ticular schools” (at p. 7). [The order of the court below 
clearly does not require the immediate general admission 
of Negro children otherwise qualified for their appropriate 
classes at particular schools.] The order below is in line 
with the directive which follows that observation:

On the other hand, a District Court, after analysis 
of the relevant factors {which, of course, excludes hos­
tility to racial desegregation), might conclude that 
justification existed for not requiring the present non- 
segregated admission of all qualified Negro children. 
In such circumstances, however, the courts should 
scrutinize the program of the school authorities to make 
sure that they had developed arrangements pointed 
toward the earliest practicable completion of de­
segregation, and had taken appropriate steps to put



18

their program into effective operation (emphasis 
added) (at p . 7).

As pointed out above, the court below had before it 
the evidence of what appellants had done over a five year 
period with respect to developing “ arrangements pointed 
toward the earliest practicable completion of desegrega­
tion” and had before it the steps which had been taken by 
the Board. Appellants plainly had not developed “ arrange­
ments pointed toward the earliest practicable completion of 
desegregation” . They had not even developed arrange­
ments for a start. They had simply announced a decision 
to desegregate, and in the face of purely verbal local op­
position postponed their decision for an indefinite period 
of time. The court below ordered appellants to submit a 
plan so that it might determine whether the Board has now 
developed “ arrangements pointed toward the earliest prac­
ticable completion of desegregation.”

It should be noted also that in the Cooper case, the Court 
specifically considered the position of the school authori­
ties in that case, which is similiar to the position of the 
school authorities here, with respect to the necessity for 
postponement of their program of desegregation. The 
Court said at page 12:

Their position in essence was that because of ex­
treme public hostility which they stated had been en­
gendered largely by official attitudes and actions of the 
Governor and Legislature, the maintenance of a sound 
educational program at Central High School, with 
Negro students in attendance, would be impossible.

In the instant case, appellants testified that the local 
unofficial opposition to desegregation, which they might 
encounter, would have an adverse effect upon education 
in Chattanooga which, they claim, cannot be countenanced



19

even when weighed against constitutional rights (Appellees’ 
App. pp. 32b-33b, 37b, 51b, 81b-82b, 83b, 93b, 97b).

But the Supreme Court reviewed the detailed facts which 
had been found by the District Court in the Little Bock Case 
as to the effects of public hostility on conditions at Cen­
tral High School after it had been desegregated (at p. 13). 
The Court specifically accepted these findings, (at p. 15) and 
“ also the findings that the educational progress of all the 
students, white and colored” , had suffered and would con­
tinue to suffer if the conditions which prevailed were per­
mitted to continue (p. 15).

The Court ruled, however, that the rights of Negro 
children could not be sacrificed or yielded to violence or 
disorder under any circumstances since constitutional rights 
are involved (at p. 16).

It is, therefore, clear that the court below properly dis­
regarded appellees reasons for postponement of its de­
cision to desegregate and properly ordered the Board to 
submit a plan for its consideration. It likewise is clear 
that appellants were not denied a hearing. They moved 
for summary judgment. Moreover, the order clearly pro­
vides for a hearing on appellants’ proposed plan.

Appellees do not question the good faith of the appellants 
with respect to any action taken by them in their praise­
worthy attempts to secure substantial community support 
for desegregation over the past five years. Appellees be­
lieve that appellants were of the opinion, in good faith, that 
the Supreme Court decisions required them to first secure 
community support. However, as pointed out above, the 
question is whether community acceptance of the principle 
of desegregation is a valid condition precedent to the duty 
on school authorities to comply with the Supreme Court’s



20

decisions and whether appellants’ announced decision to 
comply is sufficient without deeds.

Appellees say that community acceptance of the Su­
preme Court’s decision that racial segregation in public 
schools is unconstitutional is not a necessary condition pre­
cedent to the duty on school authorities to comply with that 
decision, Cooper v. Aaron, supra, at p. 7; Brown v. Board 
of Education of Topeka, 349 U. S. 294 (1955) and that 
appellants’ decision to comply, standing alone, is not com­
pliance. As the Fifth Circuit said in Borders v. Rippy, 
247 F. 2d 268, 272 (1957): “ Faith by itself, however, with­
out works, is not enough.” And as the Eighth Circuit said 
in Dove v. Parham, 282 F. 2d 256, 261: “ The question, here, 
however, is not state of mind but required action.”

A  prompt and reasonable start toward full compliance 
with the Supreme Court’s decisions in the Brown case is 
long overdue in Chattanooga. The order of the court 
below should, therefore, be affirmed.

Once a start has been made, as required by the Brown 
decision, appellants may then show the District Court why 
additional time is needed in the public interest to carry out 
the ruling of the Supreme Court in an effective manner 
and why such additional time is consistent with good faith 
compliance at the earliest practicable date. Cooper v. 
Aaron, supra, at p. 7.

*



21

II.

Should appellees have been required to exhaust the 
administrative remedy provided by the Tennessee Pupil 
Assignment Law prior to invoking the jurisdiction of 
the court below.

The District Court answered this question “No.”
Appellees contend the answer is “ No.”

The second ground of appellants’ motion for summary 
judgment was as follows:

Plaintiffs admit, in their original complaint, that 
they have not exhausted the administrative remedies 
provided by the Tennessee Pupil Assignment Law, nor 
do they pray for any relief as individuals (Appellants’ 
App. p. 54a).

Upon this appeal, appellants contend that the question is : 
“ Are defendants operating under the Tennessee Pupil As­
signment Law?” The District Court answered this ques­
tion “ No,” and appellants contend the answer should have 
been “Yes” (Brief for Appellants, p. 17). Appellants then 
cite §49-1743 of the Tennessee Code Annotated which pro­
vides, in effect, that each child who had enrolled in a school 
prior to January 25, 1957 shall remain in such school until 
graduation unless enrolled in a different school by the 
Board, pursuant to other provisions of the Tennessee Pupil 
Assignment Law. The other provisions of the Tennessee 
Pupil Assignment Law establish criteria for reassignment 
of students and provide an administrative remedy for 
those aggrieved by the action of the Board with respect 
to such reassignments. Tennessee Code Annotated, Sec­
tions 49-1741-49-1763.



22

The appellant Board claims that it is operating pursuant 
to the provisions of the Tennessee Pupil Assignment Law, 
but it should be noted that in none of the statements of 
policy issued by it, regarding desegregation of its schools, 
is there any reference whatsoever to the law or its impact, 
if any, on this problem with which the Board claims it has 
been dealing for more than live years. It should also be 
noted that the Board has not adopted any resolution imple­
menting the Tennessee Pupil Assignment Law. Compare, 
Gibson v. Board of Public Instruction of Dade County (5th 
Cir. 1959), 272 F. 2d 763. Moreover, the Superintendent 
testified on his deposition that the Board had not put the 
law into effect in Chattanooga (Dep. p. 28).

The Court below ruled that appellants’ claim that ap­
pellees had not exhausted the administrative remedy pro­
vided by the assignment law fails for a number of reasons, 
but added that it considered it sufficient to point out that 
appellants are not operating under that law. The court 
found that appellants continued to maintain one zoning for 
white pupils and another zoning for Negro pupils. The 
court also found that appellants’ refusal to admit appel­
lees’ children to Gflenwood School (white) was not because 
of the failure of appellees to comply with the terms of the 
Tennessee Pupil Assignment Law but because of their 
race and color (Appellants’ App. pp. 98a-99a).

Appellees’ claim here is that the Tennessee Pupil As­
signment Law is inadequate to provide the relief sought 
by appellees in this case. Kelley v. Board of Education of 
the City of Nashville (M. D. Tenn. 1958), 159 F. Supp. 272, 
aff’d on other grds., 270 F. 2d 209 (6th Cir. 1959), cert. den. 
361 U. S. 924; Gibson v. Board of Public Instruction of Dade 
County, Fla., 246 F. 2d 913 (5th Cir. 1957) and 272 F. 2d 
763 (5th Cir. 1959); Holland v. Board of Public Instruction 
of Palm, Beach County, Florida, 258 F. 2d 730 (5th Cir.



23

1958); Mannings v. Board of Education of Hillsborough 
County, Florida, 211 F. 2d 370 (5th Cir. 1960) and Dove 
v. Parham, 271 F. 2d 132 (8th Cir. 1959).

As the court below pointed out, appellees did not make 
individual application for admission to a white school for 
the purpose of establishing a condition precedent to the as­
sertion of a constitutional right. Appellees sought by this 
action to confirm the fact that appellants’ policy precludes 
application to a white school by a Negro. A policy of oper­
ating schools on a racially segregated basis says, in effect, 
a Negro may not apply to a white school.

Certainly, there is nothing in the Tennessee Pupil As­
signment Law “ clearly inconsistent with a continuing policy 
of compulsory racial segregation.” Gibson v. Board of Pub­
lic Instruction of Dade County, Fla. (5th Cir. 1959), 272 
F. 2d 763, 766; Mannings v. Board of Public Instruction of 
Hillsborough County, Fla., supra, at 372; Norwood v.
Tucker, No. 16586, decided March 2, 1961, 8th Cir., ------
F. 2d —-— (Little Eock Case); Kelley v. Board of Educa­
tion of City of Nashville, supra, at p. 277. Consequently, 
whether appellants are or are not operating under the 
Tennessee Pupil Assignment Law is not determinative of 
the issue here. In Paragraph 5 of the answer filed by five 
members of the school board (Appellants’ App. p. 15a), 
appellants admit that they have continued to operate a 
biracial school system in the City of Chattanooga. The issue 
here is whether appellants, notwithstanding the Tennessee 
Pupil Assignment Law, are entitled to an injunction en­
joining the policy of operating the schools on a biracial 
basis or, in the alternative, a court-approved plan of oper­
ation on a nonracial basis.



24

Appellees do not understand that on this appeal appel­
lants are challenging the ruling of the court below that this 
action may properly be maintained as a class action. The 
propriety of bringing such suits as class actions seems to 
have been settled by this Circuit in Williams v. Kansas 
City, 205 F. 2d 47 (1953), cert, den., 346 U. S. 826, and by 
the Supreme Court’s recognition of the class aspect of the 
major segregation cases, Brown v. Board of Education of 
Topeka, supra.

CONCLUSION

For all the foregoing reasons, the judgment of the 
court below should be affirmed.

Respectfully submitted,

Z. A lexander L ooby 
A von W illiams

327 Charlotte Avenue 
McClellan-Looby Building 
Nashville, Tennessee

T hurgood M arshall 
Constance B aker M otley 

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs-Appellees



25

CERTIFICATE OF SERVICE

This is to certify that on the 17th day of March, 1961, 
I served two (2) copies of the brief and appendix for ap­
pellees, in the above-entitled case, upon Raymond B. Witt, 
Jr., Esq., 1234 Volunteer Building, Chattanooga 2, Ten­
nessee and Ellis Meacham, Esq., 324 Hamilton Bank Build­
ing, Chattanooga, Tennessee, Attorneys for Appellants, 
by mailing two (2) true copies of same to each of them 
via United States Mail, special delivery, air mail, to the 
addresses shown herein.

Attorney for Appellees