Goss v. Knoxville, TN Board of Education Brief Amicus Curiae

    N o. 217

<gn tlit jsupumt fljaurt a | to  United States
October T eem, 1962

T he

J osephine Goss, et al., petitionees

v.
of E ducation of the City  of K noxville, 

1 T ennessee, et al.

H enry C. Maxwell, J r., et al., petitioners

p.
County B oard of E ducation of D avidson 

County, T ennessee, et al.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

m

ARCHIBALD COX,
Solicitor General, 

BURKE MARSHALL,
Assistant Attorney General, 

BRUCE J. TERRIS,
Assistant to the Solicitor General, 

HAROLD H. GREENE,
HOWARD A  GLICKSTEIN,

Attorneys,
Department of Justice, Washington $5, D.O.

vi.;;



I N D E X
Pags

Opinions below__________________________________________1
Jurisdiction__ _ ________________ _v______________ ; 2
Question presented______________________________ :__ 2
Interest of the United States____________    2
Statement________________________________________   4
Summary of argument__________________    15
Argument_____________________     18

A. The plan of pupil transfers based solely upon race
violates the equal protection clause of the four­
teenth amendment______   22

B. The plan unlawfully tends to preserve school segre­
gation by authorizing automatic self-assignment, 
upon explicit racial grounds, to the school at­
tended under segregation_ _______________ _ 27

C. Other tested methods are available for securing the
educational and psychological welfare of children 
during a period of transition to fully integrated
schools_______ _______________ !___________  34

Conclusion_____________________________________   41

CITATIONS

Baldwin v. Morgan, 287 F. 2d 750____________________  22
Boson v. Rippy, 285 F. 2d 43________________ :______  3, 40
Brown v. Board of Education, 347 U.S. 483__________  3, 4, 16, 41
Brown v. Board of Education, 349 U.S. 294_____________ 4,

15, 16, 19, 20, 21, 24, 27, 34, 35
Burton v. Wilmington Parking Authority, 365 U.S. 715__ 23
Bush v. Orleans Parish School Board, 308 F. 2d 491__ 37, 38
Carson v. Warlick, 238 F. 2d 724-_  ______ _______ 26
Cooper v. Aaron, 358 U.S. 1__________________  3, 19, 20, 28, 34
Dawson v. Mayor and City Council of Baltimore, 220 F. 2d

386, affirmed, 350 U.S. 877— ______ - ___ _______ _ 23
Dillard v. School Board of City of Charlottesville, Va., 308 F.

2d 920__________ _______________ — _______ 3
Green v. School Board of the City of Roanoke, Virginia, 304

F. 2d 118_______ _________ _________ — _____ 27
Jones v. School Board of City of Alexandria, 278 F. 2d 72__ 27
Kelley v. Board of Education of City of Nashville, 270 F. 2d

209, certiorari denied, 361 U.S. 924_________________  3, 11
Mannings v. Board of Public Instruction, 277 F. 2d 370__ 27

671303— 63------1 d )



II

Mapp v. Board of Education of City of Chattanooga, 203 Page
F. Supp. 843____________________________________  3

Marsh v. County School Board of Roanoke, Virginia, 305
F. 2d 94________________________________________  27

McCoy v. Greensboro City Board of Education, 179 F. Supp.
745, reversed, 283 F. 2d 667------------------------------------ 38

New Orleans City Park Improvement Assoc, v. Detiege, 358
U.S. 54_________________________________________  23

Norris v. Alabama, 294 U.S. 587_____________________  23
Norwood v. Tucker, 287 F. 2d 798-------------------------------- 27
Parham v. Dove, 271 F. 2d 132------------------------------------ 26
Plessy v. Ferguson, 163 U.S. 537---------------------------------  22
Shelley v. Kraemer, 334 U.S. 1------------------------------------  24
Shuttlesworth v. Birmingham Board of Education, 162 F.

Supp. 372, affirmed, 358 U.S. 101----------------------------  26
Sipuel v. Board of Regents, 332 U.S. 631------------------------  24
Skinner v. Oklahoma, 316 U.S. 535------------------------------  26
Steele v. Louisville cfe Nashville Railroad Co., 323 U.S. 192__ 22
Strauder v. West Virginia, 100 U.S. 303------------------------  22
Sweatt v. Painter, 339 U.S. 629-------------------------   24
Vick v. County Board of Education of Obion County, 205 F.

Supp. 436_______________________________________  3
Constitution and statutes:

U.S. Constitution, Fourteenth Amendment___15, 19, 22, 39
28U.S.C. 1331_________________________________ 4
28 U.S.C. 1343_________________________________ 4
28 U.S.C. 2201_________________________________ 4
28 U.S.C. 2202_________________________________ 4
42 U.S.C. 1981________________________________  5
42 U.S.C. 1983____________________________   5

Miscellaneous:
Greenberg, Race Relations and American Law----------- 32
1961 report of the United States Commission on Civil

Rights, education____________________________  32
Report of the United States Commission on Civil 

Rights, Civil Rights U.S.A./Public Schools Southern
States 1962________________________________  9, 12, 32

Rule 23(a), F.R. Civil P ________________________  4
Statistical Summary of School Segregation-desegrega­

tion in the Southern and Border States, published by 
the Southern Education Reporting Service (Novem­
ber 1962)___________________________________  3

Wey and Corey, Action Pattern in School Desegre­
gation______________________________________  37



Jn to jSttprm* dfimt 4  to fflmM
October T eem, 1962

No. 217
J osephine Goss, et al., petitioners

v.
T he B oard of E ducation op the C ity of K noxville, 

T ennessee, et al.

H enry C. Maxwell, J r., et al., petitioners

v.
County B oard of E ducation of D avidson 

County, T ennessee, et al.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the Sixth Circuit in Goss (R. 157-164) is reported 
at 301 F. 2d 164. The opinion of the United States 
District Court for the Eastern District of Tennessee 
(R. 119-137) is reported at 186 F. Supp. 559.

(i)



2

The opinion of the United States District Court for 
the Sixth Circuit in Maxwell (R. 282—284) is reported 
at 301 F. 2d 828. The first findings of fact, conclu­
sions of law, and judgment of the United States Dis­
trict Court for the Middle District of Tennessee 
(R. 228-243) are reported at 203 F. Supp. 768. The 
second findings of fact, conclusions of law, and judg­
ment (R. 269-273) are not reported.

JURISDICTION

The judgment of the court of appeals in the Goss 
case was entered on April 3, 1962 (R. 156-157). The 
judgment of the court of appeals in the Maxwell case 
was entered on April 4, 1962 (R. 281). The petitions 
for writs of certiorari were granted by this Court on 
October 8, 1962, limited to the first question presented 
by the petition (371 U.S. 811; R. 285). The jurisdic­
tion of this Court rests upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the transfer provisions in the plans of school 
desegregation approved by the courts below, which 
provide for automatic transfer solely on grounds of 
race out of the integrated school to which a pupil is 
assigned on the basis of residence back to his former 
segregated school, invalidates those plans as remedies 
for the denial of petitioners’ rights under the equal 
protection clause of the Fourteenth Amendment.

INTEREST OF THE UNITED STATES

The instant cases are the first school desegregation 
cases that this Court has agreed to review on plenary



3

hearing since Cooper v. Aaron, 358 U.S. 1. They 
present a significant question regarding the permis­
sible means to effectuate school desegregation. The 
question is also one about which lower federal courts 
have disagreed. Compare the views of the Sixth 
Circuit expressed in Kelley y. Board of Education 
of City of Nashville, 270 F. 2d 209, certiorari de­
nied, 361 U.S. 924, and the opinions below, with the 
holdings of the Fourth and Fifth Circuits in Dillard 
v. School Board of City of Charlottesville, Ya., 308 
F. 2d 920, and Boson v. Hippy, 285 F. 2d 43.1

I t is now over eight years since this Court’s deci­
sion in Brown v. Board of Education, 347 U.S. 483, 
when state authorities became “duty bound to devote 
every effort toward initiating desegregation and bring­
ing about the elimination of racial discrimination in 
the public school system.” Cooper v. Aaron, 358 U.S. 
1, 7. As a consequence, 255,367 of the 3,279,431 Ne­
groes of school age living in the southern and border 
states and the District of Columbia-—representing 7.8 
percent—have come to attend biracial schools.2 To 
some, this represents great progress in bringing about

1 Two district courts have also refused to approve desegrega­
tion plans containing transfer provisions similar to those in­
volved in this case. See Mapp v. Board of Education of City 
of Chattanooga, 203 F. Supp. 843 (E.D. Tenn.); Vick v. 
County Board of Education of Obion County, 205 F. Supp. 
436 (W.D. Tenn.).

2 243,150 of these Negroes (95.2 percent) live in Delaware, 
District of Columbia, Kentucky, Maryland, Missouri, Okla­
homa, and West Virginia. See Statistical Summary of School 
Segregation-desegregation in the Southern and Border States, 
p. 3, published by the Southern Education Reporting Service 
(November 1962).



4

changes in deep-rooted social patterns; to others, the 
pace has been too slow. The realization of the rights 
enunciated, by this Court in Brown v. Board of Edu­
cation, is of extreme importance to millions of Ameri­
can citizens, and the attainment of a nation-wide sys­
tem of non-diseriminatory public education with the 
least disturbance or other interference with public 
education is of vital interest to the country as a 
whole.

The United States has participated in the two pre­
vious cases in this Court involving school desegregation 
problems. We believe that in these cases, because of 
the nature of the issue presented and the disagree­
ment of the lower courts, it is again incumbent upon 
the United States to express its views.

STATEMENT

These actions were initiated by Negro pupils and 
their parents to desegregate the public schools in 
Knoxville, Tennessee, and Davidson County, Tennes­
see (an area adjacent to the City of Nashville.)3 
Both suits were brought as class actions under Rule 
23(a)(3), F.R. Civil P., against the local school au­
thorities seeking injunctive and declaratory relief to ob­
tain desegregation in accordance with Brown v. Board 
of Education, 347 U.S. 483, 349 U.S. 294.4 In each case 
the jurisdiction of the district court wTas invoked pursu­
ant to 28 U.S.C. 1331, 1343, 2201, and 2202 and rights

3 The Goss case was filed on December 11, 1959, in the District 
Court for the Eastern District of Tennessee (E. 5). The 
Maxwell case was filed on September 19, 1960, in the District 
Court for the Middle District of Tennessee (E. 165).

4 As early as August 17, 1955, the Knoxville School Board 
recognized that it was required to take steps to implement the



5

were asserted under 42 U.-S.C. 1981 and 1983 (R. 5-6, 
171-172).5 6 In both eases, the school authorities acknowl­
edged by their answers that they were continuing to 
operate racially segregated public school systems (R. 
27, 202).6 After directions from the trial courts to 
present desegregation plans (R. 29, 208), both boards

Brown decision. Various study groups were formed and 
eventually eight possible plans of desegregation were presented 
to the school board. At a meeting on May 11, 1956, the 
school board announced that the plans had been studied but 
all had been rejected because it “did not feel at that time 
that desegregation of the Knoxville Public Schools could be 
successfully put into operation” (it, 43-46, 122-123).

I t  does not appear that the Davidson County School Board 
took any steps to implement the Brown decision prior to the 
institution of this suit (It. 190, 202, 204).

5 In  the Maxwell case, the plaintiffs also attacked the assign­
ment of school personnel on the basis of race and requested 
that any desegregation plan provide for the assignment of 
teachers, principals, and other school personnel on a non-racial 
basis (ft. 174-175, 184).

6 The answer of the defendants in Goss said (R. 27) : “I t is 
therefore stated to this Court that the said defendants do not 
for one moment admit to any dereliction of duty on their, or 
their predecessors’ part in not having hastened to obey the 
Supreme Court’s pronouncement. Two duties of these defend­
ants have sharply clashed, the one to obey the Constitution of 
the United States as so recently interpreted, the second to honor 
and respect an allegiance to our community and its members 
which incorporates in its very fabric a careful protection of our 
cherished institutions. More particularly, there is the absolute 
compulsion to seek ever for efficient, undisturbed and continu­
ous schooling, unmarred by the possibility of interruption from 
drastic unpopular change. The defendants have simply dis­
charged the responsibilities of their offices in the only way that 
a proper reconciliation of conflicting allegiances has permitted. 
The defendants owe no apologies to anyone, and make none.”



e
adopted plans to desegregate one school grade each 
year oyer a twelve-year period beginning with the 
first grade in 1960 in Knoxville and in 1961 ip David­
son County (R. 30; 214). While there were differ­
ences in wording, the two plans were substantially 
the same. Both contained provisions for rezoning of 
schools without reference to race, and for a system of 
transfers.

The transfer rule, which is at issue in this ease, pro­
vides that, in certain instances, pupils may obtain 
transfers from the schools in their zones of residence 
to other schools. The Knoxville plan, which is essen­
tially the same as the Davidson County plan, provides 
(R. 31-32):

6. The following will be regarded as some of 
the valid conditions to support requests for 
transfer:

a. When a white student would otherwise be 
required to attend a school previously serving 
colored students only:

b. When a colored student would otherwise 
be required to attend a school previously serv­
ing white students only:

c. When a student would otherwise be re­
quired to attend a school where the majority of 
students of that school or in his or her grade 
are of a different race.

Both plans also contain general provisions stating 
that transfers will be granted when “ good cause” is 
shown.7

7 The Knoxville Plan provides (E. 31) :
“5. Bequests for transfer of students in desegregated grades 

from the school of their Zone to another school will be given



7

Petitioners filed in the respective district courts 
written objections to both plans including specific 
objections to the above quoted transfer rule (R. 32- 
34, 215-219).8 9 In each case the district court held a 
hearing to consider the adequacy of the plan.

The Evidence and Lower Court Holdings in the 
Goss Case.8—Dr. Burkhart, the president of the Knox­
ville school board, testified that the transfer provision 
was intended to provide for “ hardship circumstances” 
(R. 85). When asked, “ * * * this feeling of the 
board that there should be provision for transfers 
based on race—this is attributable to the board’s feel-

full consideration and will be granted when made in writing by 
parents or guardians or those acting in the position of parents, 
when good cause therefor is shown and when transfer is prac­
ticable, consistent with sound school administration.”

The Davidson County Plan provides (R. 214) :
“4. Application for transfer of first grade students, and sub­

sequent grades according to the gradual plan, from the school of 
their zone to another school will be given careful consideration 
and will be granted when made in writing by parents, ghard- 
ians, or those acting in the position of parents, when good cause 
therefor is shown and when transfer is practicable and con­
sistent with sound school administration.”

8 The objection in the Goss case was as follows (R. 34): 
“Paragraph six (6) of the plan violates the due process and 
equal protection clauses of the Fourteenth Amendment to the 
Constitution of the United States in that said paragraph pro­
vides racial factors as valid conditions to support requests for 
transfer, and further in that the racial factors therein provided 
are manifestly designed and necessarily operates to perpetuate 
racial segregation.”

9 The record mainly relates to the adequacy of the twelve-year 
plan of desegregation, but, since this matter is not here under 
review, our statement of facts is limited to matters bearing on 
the transfer plans.

6T130&— 63- -2



ing with regard to the hostility of the community to 
this sort of change; is that it?,” he answered (R. 85) :

Not as much as to the effect that it might 
have upon the students. I  would like to be 
clear on the matter that our primary concern 
is the education of our students, all of them. 
This is our prime concern.

Other factors enter into our decision, but our 
primary concern is the orderly education of our 
students, both white and colored, in an effort 
to make available to the community the best 
facilities and instructional facilities that we can 
under the least possible circumstances which 
might be harmful.

Dr. Burkhart explained that the board thought it 
might be “harmful” to a certain number of white 
students to go to school with Negroes and also “it 
might be harmful to some of the colored students to 
go with white students if they didn’t want to” (R. 85). 
He said the basis for this feeling was (R. 86) :

The fact that we are talking about two sepa­
rate races of people, with different physical 
characteristics, who have not in our community 
been very closely associated in many ways and 
certainly not in school ways. And there would 
be a sudden throwing together of these two 
races which are not accustomed to that sort of 
thing. Either of them might suffer from it 
unless we took some steps to try to decrease 
that amount of suffering or that contact which 
might lead to that in case it did occur.

He stated that he did not necessarily refer to physical 
harm but was more concerned with “mental harm.” 

Dr. Burkhart testified that he did not know pre-

8



9

eisely what procedure would be used to notify stu­
dents of their new school zones (R. 91-92), but he did 
indicate how he expected the transfer plan would 
operate (R. 93-94) :

Q. I  am asking you do you or does the board 
anticipate that any white students will remain 
in schools which have been previously zoned or 
used for Negroes exclusively?

A. We doubt that they will.
Q. As a matter of fact, none have remained 

in the City of Nashville, have they? 10
A. I  don’t know. * * *
Q. So then a Negro student who happens to 

be in a zone where the school for his zone is a 
school which was formerly used by Negroes 
only, that school will be continued to be used 
for Negroes only and he will remain in a 
segregated school, will he not?

A. Yes, sir.

10 The Knoxville and Davidson County transfer provisions 
were copied from the Nashville desegregation plan (R. 219). 
The experience under the Nashville plan is summarized in Re­
port of the United States Commission on Civil Rights, Civil 
Rights U.8.A./Public Schools Southern States 1962, pp. 115- 
116: “After 3 years of desegregation, only 13 percent of the 
Negroes eligible to attend white schools were doing so. No 
exact figures are available for the 1961-62 year, but school offi­
cials estimate the percentage is appreciably higher—perhaps 
20 percent. After 3 years, there were no whites in Negro zones 
attending a Negro school. Last, year, there were only the two 
attending the Negro Pearl Elementary School. There have 
been no recent figures compiled on the number of whites orig­
inally assigned to Negro schools, but when desegregation 
began in 1957 there were 55, all in the first grade. Projecting 
this known figure to five grades, the total number would have 
been 275 in 1961-62.”



10

Q. And if lie applied for transfer out of his 
zone to a school which has been formerly serv­
ing white students only, then his application 
would be denied under this plan, would it not, 
sir?

A. Unless it were based on one of the other 
reasons that we have established for transfer. 
I f  transferred under one of those, it would be 
granted.

* * * * *
Q. But a white student to transfer out of a 

Negro school, as you have stated, would be 
entitled to do so, to have his application granted 
as a matter of course under paragraph 6, sub- 
paragraph “ a” or “c” of this plan?

A. Yes, sir.11
Mr. Marable, a school administrator in charge of 

handling transfer requests, described the system used 
before the plan involved in this case was adopted (R. 
112). He said that transfer requests were evaluated 
on a case by case basis, no specific rules were followed, 
he was vested with great discretion, and generally 
transfers were granted for “hardship cases and con­
venience” (R. 112-117).

The district court, with one modification, approved 
the Knoxville desegregation plan, but did not discuss 
the transfer provisions in its memorandum opinion

11 School board member Ray also acknowledged that the 
operation of the transfer provision would tend to perpetuate 
segregation (R. 104). Another board member, Dr. Moffett, 
stated that the transfer provisions “ [a]t least give the opportu­
nity” to perpetuate segregation as they are availed of by stu­
dents or parents (R. 108).



11

(R. 119).12 During the trial, the court indicated that 
it regarded itself as bound by the Sixth Circuit’s prior
approval of an almost identical provision in the Nash­
ville, Tennessee, school case (Kelley v. Board of 
Education of Nashville, 270 F. 2d 209, 228, certiorari 
denied, 361 U.S. 924) (R. 94).

After the district court’s decision, the school board 
adopted a resolution providing for administration of 
the transfer provision as follows: “All first grade 
pupils should either enroll in the elementary school 
within their new school zone or in the school which they 
would have previously attended” (R. 141).13 14 This 
procedure avoided assigning students to schools within 
their new zones and then requiring them affirmatively 
to seek a transfer if they desired to take advantage 
of the transfer provisions of the plan. Rather, stu­
dents were given the option to enroll in the school pre­
viously attended, i.e,, the segregated school (R. 145, 
151). Petitioners, claiming that this administrative 
device further demonstrated that the transfer plan 
would perpetuate segregation, moved for a new trial 
(R. 138-155).“ The motion was denied by the district 
court (R. 155).

12 The district court approved the Knoxville desegregation 
plan in all respects except that it required the school board 
to re-study and re-submit a plan relating to an all-white 
vocational school offering technical courses not available to 
Negro students.

13 As of January 22, 1960, 78 percent of the students in Knox­
ville were white and 22 percent were Negro. There were 30 
white schools and 10 Negro (E. 26). The record does not 
indicate which of these schools were elementary schools and 
which were high schools.

14 Petitioners alleged that (R. 154) : “ (b) Under the plan, as 
elucidated by the procedure established in said policy, pupils 
will be assigned routinely to said Negro and white schools ac­



12

The court of appeals approved the transfer provi­
sion (R. 162; 301 E. 2d at 168).15

The Evidence and Lower Court Holdings in the 
Maxwell case.—J. E. Moss, the Superintendent of 
Schools of Davidson County, testified that the effect of 
the transfer provisions of the Davidson County deseg­
regation plan was to permit a child or his parents ‘‘to 
choose segregation outside of his zone but not to choose 
integration outside of his zone” ; that the provision 
was identical to that in the Nashville plan; and that as 
it operated in Nashville and was intended to operate 
in Davidson County, white pupils were not actually 
required to go first to the Negro schools in their zones 
and then seek transfers out, and no Negro pupils who 
did not affirmatively seek a transfer to an integrated 
school were assigned to one (R. 219-220).

cording to race, as in the past, without regard to non-racial 
school zones and without regard to a transfer procedure in 
which the pupil affirmatively seeks a transfer from his school 
in the non-racial zone to another school, (c) Said policy mani­
festly is designed to impede pupils’ free choice to attend a 
school in their zone, and is designed to influence students or 
parents to remain in segregated schools, in that it readopts, as a 
part of defendant’s official assignment policy under and pursu­
ant to the plan, defendants’ past policy of assigning pupils to 
racially designated schools.”

15 The court modified the district court’s judgment “insofar as 
it approved the board’s plan for continued segregation of all 
grades not reached by its grade-a-year plan,” and remanded, 
instructing the district court “to require the board to promptly 
submit an amended and realistic plan for the acceleration of 
desegregation” (R. 163-164; 301 F. 2d at 169). On June 25, 
1962, the Knoxville School Board voted to double the rate of 
desegration by opening two grades a year instead of one. See 
Report of the United States Commission on Civil Rights, 
Civil Rights U.S.A./Public Schools Southern States 1962, p. 130.



13

Another witness, Dr. Eugene Weinstein, a professor 
at Vanderbilt University in Nashville, testified that 
the experience in Nashville was “mass paper trans­
fers of whites back into what is historically the 
white school, of Negroes remaining in what is histori­
cally the Negro school,” and that the transfer pro­
visions tend to keep the system oriented toward a 
segregated system with token desegregation (R. 226).

The district court, while modifying some aspects of 
the desegregation plan submitted by the school board, 
approved the transfer provisions of the plan (R. 
242).16 As in the Goss case, additional proceedings 
were held in the district court after petitioners moved 
for further relief to object to the manner in which the 
transfer provisions were being administered (R. 244). 
The evidence showed that, as a result of the rezoning, 
288 white children were in zones of the 7 elementary 
schools that were previously all Negro and 405 Negro 
children were in zones of the 62 elementary schools 
that previously were all white (R. 194, 252).17 The

18 The court modified the school board’s twelve-year plan to 
require that the first four grades be desegregated as of January 
1, 1961, with an additional grade to be desegregated each Sep­
tember thereafter until all grades were covered (R. 240-242). 
The court also refused injunctive relief to several plaintiffs in 
higher grades that were still segregated who sought admis­
sion to white schools nearer their homes as exceptions to the 
plan (K. 241-242, 269-270). With respect to petitioners’ re­
quest that the school board eliminate segregated teacher and 
personnel assignments, the court reserved judgment (R. 241- 
242).

17 As of September 1960, 95 percent of the students in David­
son County were white and 5 percent were Negroes. There 
were 62 white elementary schools, 16 white high schools, 7 
Negro elementary schools, and one Negro high school (R. 194).



14

school authorities sent notices to the parents of these 
693 students asking them to indicate within three days 
whether they requested permission for the children 
to stay at the school previously attended (i.e., the 
segregated school) or requested permission for a 
“transfer” to the newly zoned school (R. 247-250).18 
Petitioners contended that these notices were mis­
leading and encouraged the continued maintenance of 
racial segregation in that assignments were actually 
to a segregated school from which there must be a 
transfer out (R. 245). The district court held that 
the notices were adequate and unobjectionable.19

18 Of this group, only fifty-one pupils, all of them Negroes, 
asked to attend the school in the new zones (It. 265).

19 In its second findings of fact, conclusions of law, and 
judgment the court. considered further the question of teacher 
assignment on a racial basis. The court indicated that 
it did not believe that this issue had been finally settled by the 
Brown case but recognized that serious problems were presented 
under the equal protection clause of the Fourteenth Amend­
ment (R. 271) : “Particularly is this true when the Court con­
siders the fact that a plan has been approved for Davidson 
County which includes a very liberal transfer provision. When 
this provision, although it is on a voluntary basis, is coupled 
with a policy (and the Court is not now finding that the policy 
exists in Davidson County) which would assign teachers on 
the basis of race, then a serious question is presented to the 
. Court as to whether there is not actually being thereby perpetu­
ated the very condition which the Supreme Court said could 
not be perpetuated, and this is a segregated system of public 
schools * * *. The Court finds that it is not necessary to deter­
mine the question relative to the assignment of school teachers 
and other personnel at this time for the reason that the Court 
does not believe (even if it should now hold and declare that 
the plaintiffs do have the right to attend a school system 
where race is not one of the factors considered in the assign­
ment of teachers) that an injunction should issue at this time.” 
The court stated that the plaintiffs could renew this question at 
a later date (R. 272).



15

On appeal, the court of appeals approved the trans­
fer provision on the authority of its decisions in the 
Kelley and Goss cases (R. 284; 301 F. 2d at 829).

SBMMAEY OS' ARGUMENT

This Court held in Brown v. Board of Education, 
349 U.S. 294, 301, that racial desegregation of the 
public schools must proceed “with all deliberate speed.” 
Compliance with this obligation requires the elimina­
tion of segregation as soon as possible. We recognize 
that school segregation is often merely one part of a 
deep-seated pattern of racial discrimination which, 
while contrary to national policy, currently enters 
into the make-up of many children, both white and 
colored. Any interim plan for desegregation can 
properly take account of educational problems. 
Therefore, while mere hostility to desegregation is not 
a relevant factor, a district court or school board is 
not required, given present conditions, to omit suit­
able provisions for meeting any problems of adjust­
ment affecting the educational development of indi­
vidual pupils.

The transfer plans in these cases, however, cannot 
be justified as an essential part of sound school admin­
istration. They are not adapted simply to promoting 
the educational welfare of individual children.

A. The transfer plans were based solely on race and 
therefore plainly are inconsistent with the Fourteenth 
Amendment. Negro children living in areas where the

671303—6: 3



16

school was formerly all-Negro and presently has a 
majority of Negroes are not permitted to transfer 
whereas white children having a residence in the same 
area can transfer. The only basis for the different 
treatment is the difference in race.

I t is irrelevant that white children in a residential 
zone where the school was formerly all-white and 
which presently has a majority of white students can­
not transfer whereas Negro students in this same zone 
can transfer. Superficial equality of treatment was 
rejected in Brown v. Board of Education, which 
held that a separate-but-equal public school system 
was unconstitutional. Moreover, the right to nondis- 
criminatory treatment is a personal right; the right of 
some Negro children to be treated the same as white 
children in the same circumstances cannot be denied 
on the ground that other Negro students have rights 
denied to white students.

B. The transfer plans tend to preserve segregation. 
They allow any pupil to transfer from a school which 
formerly served only the other race, or from a school 
which is presently composed of a majority of the 
other race. This means that students are free to re­
turn to their old racial environment but not to trans­
fer to a new racial environment. Thus, the transfer 
provisions invite immediate and continuous resegre­
gation solely upon the basis of race. This was the 
intent of the proponents, and the intent is confirmed 
by their actual operation.



17

C. Just as the burden is on the school board to jus­
tify delay in according Negro children their constitu­
tional rights (Brown v. Board of Education, supra), 
so does a school board have a heavy burden to justify 
provisions in the desegregation plan which reintro­
duce racial classifications and appear to support re- 
segregation. At the least, the school board must dem­
onstrate convincingly that the provisions are necessary 
to meet educational problems.

Here, no such evidence exists. No proof was even 
offered that the transfer provisions were needed to 
effect an orderly transition. The only possible legiti­
mate objective they could have had was to alleviate 
any educational problems individual students might 
have in adjusting to a school where the overwhelming 
majority of students were of a different race. But 
the provisions under review were badly designed to 
meet this purpose. They would allow students to 
transfer even when the school was racially balanced, 
or even when a majority of students were of their 
own race if the school formerly served a different 
race.

More important, there are practical alternatives— 
which are not based on racial criteria and do not 
support segregation—for meeting any legitimate edu­
cational problems in requiring students to at­
tend a school predominantly composed of students 
of a different race. For example, a school board 
could allow any student who desired to transfer to



18

do so, thereby allowing all students the opportunity to 
attend desegregated schools, instead of merely those 
living in particular areas. This plan has been fol­
lowed in large cities with substantial Negro popula­
tions, such as Louisville and Baltimore. The school 
board could also attempt to eliminate the problem of 
a small minority of students of one race in a school 
largely composed of another by drawing residential 
zones in order to introduce a greater balance. Or the 
school board could apply transfer provisions based on 
educational and psychological criteria which would 
apply to children on an individual basis. Such pro­
visions, which are not based on race, have been upheld 
by the lower courts.

ARGUMENT

We read the plans of the school boards in these 
cases and also the decrees below as directed to the 
existing situations in Knoxville and Davidson 
County—to a period of transition from racially seg­
regated schools to a school system fully complying 
with the equal protection clause of the Fourteenth 
Amendment. In each case the district court retained 
jurisdiction of the action “ during the period of transi­
tion” (R. 138, 242). The court of appeals specifically 
noted, with respect to the transfer plan, that (R. 
162) :

Hie trial judge retains jurisdiction during the 
transition period and the supervision of this 
phase of the reorganization may be safely left 
in his hands.



19

No transfer plan explicitly based upon race is per­
manently acceptable under a Constitution that 
prohibits state action in which race or color is the 
determinant. See infra, pp. 22-28. The critical issue 
in this case, however, as we read the decrees below, is 
whether the Knoxville and Davidson County transfer 
plans may be put into effect today, during a period of 
transition, consistently with this Court’s ruling that 
school districts shall proceed to full integration “ with 
all deliberate speed.” Brown v. Board of Education, 
349 U.S. 294, 301.

Compliance with this obligation in a manner that 
takes into account “ the public interest in the elimina­
tion of * * * obstacles in a systematic and effective 
manner” (id. at 300) calls for the accommodation of 
two prime objectives. First, the plan must move 
ahead towards complete compliance with the Four­
teenth Amendment’s requirement of “ a racially non- 
diseriminatory school system.” Id. at 301. Although 
Brown and Cooper v. Aaron, 358 U.S. 1, involved ad­
mission to school and the opinions speak chiefly in 
those terms, it is too plain for argument that the equal 
protection clause prohibits the administration of any 
aspect of public education upon the basis of race, and 
therefore the elimination of any such discrimination 
is an essential aim of everj  ̂decree.

Second, since the welfare of the children is the cen­
tral purpose of all public school education, any in­
terim plan must take into account their individual 
intellectual and psychological development affecting 
education. In many communities school segregation 
has been merely one part of a deep-seated social pat-



20

tern, originating in slavery and continuing through 
racial segregation and discrimination. The evil must 
be eliminated. The current existence and deep roots 
of the social pattern are nevertheless temporary facts 
which have left their effect upon many children, both 
white and colored. Neither hostility to desegregation 
nor disapproval of basic constitutional principles is a 
relevant factor in formulating a plan or determining 
the speed of transition (Brown v. Board of Educa­
tion, 349 U.S. 294, 300; Cooper v. Aaron, 358 U.S. 1, 
7), but, given the present facts, a district court or 
local school board is not required to omit from its 
plan of transition suitable provisions for avoiding 
educational damage to individual pupils as a result of 
too sudden a forced reversal of rooted habits.20

The transfer plans approved by the courts below 
were ostensibly designed to meet these objectives of 
wise school administration. See the Statement, supra, 
p. 8. We have no quarrel with that purpose. 
Given existing conditions, requiring a particular white 
child who had always lived a sheltered life in a rigidly 
segregated community suddenly to go to an over­
whelmingly Negro school might create problems of ad­
justment interfering with the individual’s educational 
development. Conversely, forcing a Negro child to 
break away from his established pattern and at­
tend an all-white school might in some circumstances 
impair his development. In our view, the constitu­
tional obligation to desegregate the schools “with all 
deliberate speed” does not require blindly forcing

20 Under these circumstances, the school board has an initial 
obligation to prepare students for desegregation so as to lessen 
the educational and psychological problems.



21

white children now to attend overwhelmingly Negro 
schools or Negro children now to attend over­
whelmingly white schools at the sacrifice of their 
individual welfare. School authorities may properly 
take such problems of individual adjustment into 
account along with the equally important problem of 
avoiding psychological or educational damage to 
Negro children as a result of forcing them to attend 
all-Negro schools.

Despite its announced objective the transfer plan 
involved in these cases fails to satisfy the require­
ments laid down in Brown v. Board of Education, 
supra. In our view the plan has three interrelated 
defects:

1. I t introduces into the administration of public 
education in Knoxville and Davidson County a plan 
of transfers based solely and explicitly upon race, 
rather than individual welfare.

2. I t  tends to preserve the old system of segregated 
schools by authorizing, upon explicit racial grounds, 
automatic self-assignment to the school attended un­
der segregation.

3. I t ignores the availability of other tested meth­
ods of securing the educational welfare of children
related to problems of adjustment, which are con­
sistent with the Constitution.

Whatever might be the consequence of any one of 
these defects standing alone, taken together and in a 
context of extreme dilatoriness in proceeding to de­
segregation, they vitiate the Knoxville and Davidson 
County plans for redressing the violations of peti­
tioners’ constitutional rights. In the remainder of 
this brief we shall discuss these three objections.



22

A. THE PLAN OF PUPIL TRANSFERS BASED SOLELY UPON 
RACE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 
FOURTEENTH AMENDMENT

Classifications based on race have been repeatedly 
held by this Court and by the lower federal courts to 
violate the equal protection clause of the Fourteenth 
Amendment. Perhaps the most famous enunciation 
of the principle was by Mr. Justice Harlan, dissenting 
in Plessy v. Ferguson, 163 U.S. 537, 554, 559:

[T]he Constitution of the United States does 
not * * * permit any public authority to know 
the race of those entitled to be protected in the 
enjoyment of * * * [civil] rights.

* * * * *
Our Constitution is color-blind, and neither 
knows nor tolerates classes among citizens. 
* * * The law regards man as man, and takes 
no account of his surroundings or of his color 
when his civil rights as guaranteed by the 
supreme law of the land are involved.

More recently, this Court has stated that, racial 
classifications are “ obviously irrelevant and in­
vidious.” Steele v. Louisville & Nashville Rail­
road Go., 323 U.S. 192, 203. Nor is the constitutional 
right to equality limited to any class of situations or 
category of state action. The Fourteenth Amend­
ment prohibits any “ state action in which color (i.e., 
race) is the determinant * * *. The factor of race 
is irrelevant from a constitutional viewpoint.” Bald­
win v. Morgan, 287 F. 2d 750, 754 (C.A. 5). Con­
sequently, this Court has held unconstitutional a 
variety of racial classifications involving, for example, 
juries (Strauder v. West Virginia, 100 U.S. 303;



23

Norris v. Alabama, 294 U.S. 587), public education 
{Brown v. Board of Education, supra), parks {New 
Orleans City Park Improvement Assoc, v. Detiege, 358 
U.S. 54; Dawson v. Mayor and City Council of Balti­
more, 220 F. 2d 386 (C.A. 4), affirmed, 350 U. S. 877), 
and restaurants in publicly owned buildings {Burton 
v. Wilmington Parking Authority, 365 U.S. 715). 
The use of race as the criterion for transferring pu­
pils is no less unconstitutional than the use of that 
distinction in their admission to school.

Both the Knoxville and Davidson County plans 
make race a sole and explicit criterion for transfer­
ring a student from one school to another. Para­
graph 6 of the Knoxville plan provides that a transfer 
will be automatically approved—

a. When a white student would otherwise be 
required to attend a school previously serving 
colored students only;

b. When a colored student would otherwise 
be required to attend a school serving white 
students only;

c. When a student would otherwise be re­
quired to attend a school where the majority 
of students of that school or in his or her grade 
are of a different race.

No words could make it clearer that the test is one of 
color.

The superficial equality which the plan accords 
white and Negro children by enabling each race to 
leave an integrated school does not save it from in­
validity. A similar argument was made in defense of 
the separate-but-equal public schools existing prior to 
Brown v. Board of Education. Under that system 
white children were required to go to school only with



other white children just as Negro children could only 
go to school with Negroes. Nevertheless, this Court 
held that this racial classification violated the rights 
of Negro children.

Moreover, the right to non-discriminatory treat­
ment is a personal right. See Brown v. Board of 
Education, supra, 349 U.S. at 300 (“ [a]t stake is a 
personal interest of the plaintiffs in admission to pub­
lic schools as soon as practicable on a nondiscrimina- 
tory basis”); Sweatt v. Painter, 339 U.S. 629, 634; 
Sipuel v. Board of Regents, 332 U.S. 631, 633. Thus, 
in Shelley v. Kraemer, 334 U.S. 1, it was argued that 
a restrictive covenant based on race could validly be 
enforced against Negroes by a state court since the 
court would also enforce similar covenants against 
white persons. This Court, however, rejected the con­
tention (id. at 22) :

The rights created by the first section of the 
Fourteenth Amendment are, by its terms, guar­
anteed to the individual. The rights established 
are personal rights. I t is, therefore, no answer 
to these petitions to say that the courts may 
also be induced to deny white persons rights of 
ownership and occupancy on grounds of race or 
color. Equal protection of the laws is not 
achieved through indiscriminate imposition of 
inequalities.

The extent to which the transfer plan makes race 
the criterion is emphasized by the fact that it operates 
solely in the direction of resegregation. White stu­
dents may transfer out of any school which formerly 
served Negroes. Negroes may leave any school which 
formerly served whites. But no Negro has the same



25

automatic privilege to leave a school that served Ne­
groes in order to attend integrated classes.

The omission underscores the purely racial char­
acter of the differentiation. White students living in 
a residential zone where the school was formerly all- 
Negro and is still attended by Negro students have the 
right to transfer, but Negro students who live in the 
same area are not allowed to transfer, even though 
they might equally benefit from the change. Obvi­
ously the personal constitutional rights of these Negro 
students are denied by the racial classification.

The foregoing aspect of these transfer plans em­
phasizes wrhat is already apparent on their face— 
that the criterion is not the equal welfare of all chil­
dren without regard to race; it is race, and race alone. 
In emphasizing this point we fully recognize that in 
some communities, during the transitional period, 
measures for accomplishing desegregation may create 
individual educational problems, and that it is wise 
school administration to take such transitional prob­
lems of personal adjustment into account even when 
they originate in customs fixed by race. An interim 
plan adapted to this purpose, if sincerely aimed 
at abolishing racial discrimination in the schools, 
would provide means for not only alleviating problems 
of individual children who would suffer from difficulty 
in adjusting to a school where they were numerically 
overwhelmed by a different race, but also for meet­
ing the problems of Negro children who would other­
wise suffer from a segregated education because they 
happened to live nearest a school in an overwhelmingly 
Negro part of the community. Such a plan, more­
over, would be framed in terms of the welfare of indi­



vidual children and would take some account of cir­
cumstances other than race or color. The problems 
of adjustment of a nervous boy or girl, who has lived 
in a segregated community, when forced to attend a 
school where all the other pupils are of a different 
race, are very different from those of children in a 
school where the minority is much larger, and still 
different, no doubt, from those where the proportions 
are fairly equal.

I t may be argued that in the early stages of transi­
tion administrative convenience requires a rule of 
thumb because the difficulties of investigating the 
situation of each child would be overwhelming. We 
do not agree that mere administrative convenience 
is a sufficient justification for making a classification 
according to race. In other contexts such problems 
may justify rough working distinctions, but the equal 
protection clause is more exacting when a State deals 
with fundamental personal rights. Cf. Skinner v. 
Oklahoma, 316 U.S. 535. In any event the record 
contains no evidence to support such a claim; and it is 
belied by the numerous pupil assignment laws upheld 
by the lower courts. Those laws which have been 
sustained make no mention whatsoever of race as a 
basis for transfer. E.g., Shuttlesworth v. Birming­
ham Board of Education, 162 F. Supp. 372 (NJD. 
Ala.), affirmed on limited grounds, 358 U.S. 101; 
Parham v. Dove, 271 F. 2d 132 (C.A. 8) ; Carson v. 
Warlick, 238 F. 2d 724 (C.A. 4). When race, as such, 
has been found to be a consideration affecting trans­

,20



fers, the appellate courts have uniformly held the 
statutes to be applied invalidly. See, e.g., Norwood 
v. Tucker, 287 F. 2d 798 (C.A. 8) ; Mannings v. Board 
of Public Instruction, 277 F. 2d 370 (C.A. 5) ; Green 
v. School Board of the City of Roanoke, Virginia, 
304 F. 2d 118 (C.A. 4); Marsh v. County School 
Board of Roanoke, Virginia, 305 F. 2d 94 (C.A. 4) ; 
Jones y. School Board of City of Alexandria, 278 F. 
2d 72 (C.A. 4). Furthermore, other communities 
have developed entirely workable programs that meet 
pupils’ needs without introducing invidious distinc­
tions based solely upon race. See infra, pp. 36-40.

B.. THE PLAN UNLAWFULLY TENDS TO PRESERVE SCHOOL 
SEGREGATION BY AUTHORIZING AUTOMATIC SELF-AS­
SIGNMENT, UPON EXPLICIT RACIAL GROUNDS, TO THE 
SCHOOL ATTENDED UNDER SEGREGATION

A prerequisite of every acceptable plan of school 
desegregation is that it move definitely and expedi­
tiously away from the old regime of racial discrimi­
nation. There is room for dealing with all genuine 
problems of school administration and pupil welfare. 
There is no room for nominal compliance followed 
by racial resegregation even though this be the wish 
of the local community. In Brown v. Board of Edu­
cation, 349 U.S. 294, 300-301, the Court said:

* * * the courts will require that the defend­
ants 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 additional time is necessary to 
carry out the ruling in an effective manner.

27



28

The burden rests upon the defendants to es­
tablish that such time is necessary in the public 
interest and is consistent with good faith com­
pliance at the earliest practicable date. To that 
end, the courts may consider problems related to 
administration, arising from the physical con­
dition of the school plant, the school trans­
portation system, personnel, revision of school 
districts and attendance areas into compact 
units to achieve a system of determining ad­
mission to the public schools on a nonracial 
basis, and revision of local laws and regulations 
which may be necessary in solving the fore­
going problems. They will also consider the 
adequacy of any plans the defendants may 
propose to meet these problems and to effectu­
ate a transition to a racially nondiscriminatory 
school system.

In Cooper v. Aaron, 358 U.S. 1, 7, the Court elabo­
rated the meaning of the Brown decisions:

Of course, in many locations, obedience to the 
duty of desegregation would require the im­
mediate general admission of Negro children, 
otherwise qualified as students for their ap­
propriate 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 
conclude that justification existed for not re­
quiring the present nonsegregated admission of 
all qualified Negro children. In such circum­
stances, however, the courts should scrutinize 
the program of the school authorities to make 
sure that they had developed arrangements 
pointed toward the earliest practicable com­



29

pletion of desegregation, and had taken ap­
propriate steps to put their program into effec­
tive operation. I t was made plain that delay 
in any guise in order to deny the constitutional 
rights of Negro children could not he counte­
nanced, and that only a prompt start, diligently 
and earnestly pursued, to eliminate racial segre­
gation from the public schools could constitute 
good faith compliance. State authorities were 
thus duty bound to devote every effort toward 
initiating desegregation and bringing about the 
elimination of racial discrimination in the 
public school system.

The school plans involved in these cases are in di­
rect opposition to the Court’s directions. Although 
they provide for substituting pupil assignments based 
upon zoning in place of racial segregation at the rate 
of a grade each year, they invite immediate and con­
tinuous resegregation solely upon the basis of race. 
Any white pupil may automatically transfer out of a 
school that formerly served Negroes, just because he 
is white. Any Negro may automatically transfer out 
of a school that formerly served white pupils, just 
because he is a Negro. These transfer provisions 
emphasize preservation of past unconstitutional pat­
terns. The test is racial. The reference is to the 
character of the school under the prior unconstitu­
tional pattern of racial segregation. The transfers 
operate only to preserve the past. A pupil may 
transfer out of a new school at which he will find 
students of both races, presumably to return to his old 
racial environment, but no one may transfer from his 
old school to a new racial environment. The transfers



30

can work only in the direction of segregation. A 
student who is assigned under the new zoning to an 
integrated school where most of the pupils happen 
to be of a different race may transfer out of the area 
to another school where conditions more nearly ap­
proach the old pattern of segregation. On the other 
hand, a Negro student who is assigned to a school 
that happens to be all-Negro has no right to transfer 
to a school attended by pupils of both races.

The extent to which these transfer plans preserve 
the past unconstitutional pattern is emphasized by the 
initial steps in their administration. The Knoxville 
school board adopting a resolution providing for the 
administration of the transfer provisions as follows 
(R . 139):

All first grade pupils should either enroll in 
the elementary school within their new school 
zone or in the school which they would have 
previously attended. [Emphasis added.]

In other words, students were not even assigned to 
schools within the new residential zones and then per­
mitted to apply for transfers if they were eligible to 
do so under the plan. Rather, they were from the 
very outset given the option to enroll in the school 
previously attended, i.e., the segregated school. In 
Davidson County the school authorities sent notices 
to the parents of children who, as a result of rezoning, 
would be required to attend a school different from 
the one they were then attending. The parents were 
asked to indicate, within three days, whether they 
requested permission for the children to stay at the 
school previously attended {i.e., the segregated school)



31

or requested permission for a “transfer” to the newly 
zoned school. Again, this permitted students to re­
main where they were rather than first being assigned 
to a newly zoned school and then requesting permis­
sion to transfer. Instead of focusing on the future 
and on arrangements for desegregated schools, these 
transfer plans look backward to the period when the 
schools were operated on an unconstitutional basis.

I t is clear that the proponents of the transfer pro­
visions anticipated that they will operate so as to pre­
serve segregation. Thus, Dr. Burkhart, president of 
the Knoxville school board, testified (R. 93-94) :

Q. I  am asking you do you or does the board 
anticipate that any white students will remain 
in schools which have been previously zoned or 
used for Negroes exclusively?

A. We doubt that they will.
*  ■£ *  *  *

Q. So then a Negro student who happens to 
be in a zone where the school for his zone is a 
school which was formerly used by Negroes 
only, that school will be continued to be used 
for Negroes only and he will remain in a segre­
gated school, will he not?

A. Yes, sir.
Q. And if he applied for transfer out of his 

zone to a school which has been formerly serv­
ing white students only, then his application 
would be denied under this plan, would it not, 
sir?

A. Unless it were based on one of the other 
reasons that we have established for transfer. 
I f  transferred under one of those, it would be 
granted.

.* * * * *



32

Q. But a white student to transfer out of a 
Negro school, as you have stated, would be 
entitled to do so, to have his application granted 
as a matter of course under paragraph 6, sub- 
paragraph “a ” or “c” of the plan?

A. Yes, sir.
Finally, the actual effect of the transfer provisions 

in this case shows how completely inconsistent they 
are with this Court’s direction that school systems pro­
ceed to operate “on a racially nondiscriminatory basis 
with all deliberate speed.” In Knoxville, pursuant to 
the grade-a-year plan that was approved by the dis­
trict court, the first grade was desegregated in the 
fall of 1960. Eighty-five Negroes were eligible to en­
ter previously white schools and 300 white students 
were eligible to enter previously all-Negro schools.21 
Twenty-nine Negro students actually entered nine of 
the “white schools” while all of the 300 eligible white 
students applied for and were granted transfers.22

Desegregation in Davidson County presents a simi­
lar picture. There, in January 1961, as a result of 
the rezoning required by the desegregation plan, 288 
white children in the first through fourth grades were 
in zones of the 7 elementary schools that previously 
were all Negro (R. 194, 252). Taking advantage of 
the transfer provisions, all 288 students requested and 
were granted permission to remain in the all-white

21 See supra, p. 11, note 13.
22 See 1961 Report of the United States Commission on Civil 

Rights, Education, p. 52; Report of the United States Commis­
sion on Civil Rights, Civil Rights U.S.A./Public Schools South­
ern States 1962, p. 130. At the beginning of the second year of 
desegregation, a total of 51 Negroes in the first and second 
grades elected to attend the “white school” in their residential 
zone, again in nine schools.



33

schools that they had previously attended. Similarly, 
405 Negro children were in areas that were served by 
the 62 elementary schools that previously were all 
white. Only 51 of these students elected to remain in 
these schools—thus “ desegregating” them—while the 
remainder transferred to the Negro schools they had 
previously attended (R. 265).

In sum, the transfer provisions of the Knoxville and 
Davidson County school plans, by permitting automatic 
transfers back to the old segregated schools avowedly 
on grounds of race, vitiate the plans as programs of 
desegregation. For taken as a whole neither plan can 
fairly be viewed as a bona fide effort to eliminate 
racial considerations from the school system, tem­
porarily tempered by the realization that previous 
social patterns may have to be taken into account 
in promoting the educational and psychological 
welfare of individual children. Instead, the plan 
says to the community, “ The School Board will do 
everything possible by transfers to preserve the old 
pattern of segregated schooling save only in those in­
stances in which geographical zoning enables a Negro 
to attend, if he wishes, an integrated school.” More 
is required by the obligation to proceed “with all 
deliberate speed. ’ ’

In this connection it is relevant to note the grudging 
and belated compliance in both Knoxville and David­
son County. See the Statement, supra, pp. 4-5, note 4. 
Thus, in the Goss case the court of appeals, in disap­
proving the grade-a-year plan as too slow, said (R. 
161-162) :

I t  has been nearly eight years since the first 
Brown decision and under the plan before us



the first and second grades are now integrated. 
The evidence does not indicate that the board 
is confronted with the type of administrative 
problems contemplated by the Supreme Court 
in the second Brown decision. That the opera­
tion of schools on a racially segregated basis is 
a violation of the Fourteenth Amendment and 
that the constitutional and statutory require­
ment of the state of Tennessee prohibiting the 
mixture of races in schools cannot be enforced 
are no longer debatable or litigable questions. 
This has been obvious and evident since May, 
1954.

The position of the board that it would con­
tinue to operate under these unenforeible laws, 
until compelled by law to do otherwise, does 
not commend itself to the Court, for the ac­
ceptance of a plan that provides for a minimum 
degree of desegregation. In the second Brown 
case, the Court said, at p. 300: “ The burden 
rests upon the defendants to establish that such 
time is necessary in the public interest and is 
consistent with good faith compliance at the 
earliest practicable date. ’ ’ In our judgment the 
defendants have not sustained this burden. We. 
do not think that the twelve-year plan of 
desegregation adopted at this late date meets 
either the spirit or specific requirements of 
the decisions of the Supreme Court.

C. OTHER TESTED METHODS ARE AVAILABLE FOR SECURING 
THE EDUCATIONAL AND PSYCHOLOGICAL WELFARE 
OF CHILDREN DURING A PERIOD OF TRANSITION TO 
FULLY INTEGRATED SCHOOLS

Just as the burden is on a school board to justify 
delay in according Negro children their constitutional 
rights (Brown v. Board of Education, supra; Cooper 
v. Aaron, supra), so does a school board have a heavy

34



85

burden to justify provisions in the desegregation plan 
which reintroduce racial classifications and appear 
to support resegregation. At the least, the school 
board must demonstrate convincingly that the provi­
sions will advance desegregation because they are 
the best way to meet serious educational problems, 
whether administrative or psychological, which would 
otherwise cause hardship or delay.

The record in this case does not indicate any edu­
cational problem, administrative or psychological, 
which the transfer provisions are intended to solve. 
No attempt was made to show that this type of provi­
sion is essential to attain an orderly transition to a 
nonsegregated school system. No proof was offered 
to demonstrate that whatever beneficial purposes the 
provision seeks to attain could not be achieved by 
some other means. So far as appears, the transfer 
provisions were intended merely to slow the process 
of desegregation. This objective, of course, is im­
permissible under this Court’s decisions in Brown v. 
Board of Education, supra, and Cooper v. Aaron, 
supra,.

The only legitimate objective which the transfer 
provisions could be supposed to advance is to promote 
the educational welfare of students by authorizing 
allowance for individual problems of adjustment, 
affecting a student’s educational progress, which 
might result from requiring a few pupils to go 
to a school where the overwhelming majority of stu­
dents are of a different race. The provisions under 
review, as we have seen (pp. 22-27), were badly de­
signed to meet this purpose. They are phrased in 
terms of race, not individual welfare. Even in those



36

terms, which would seem categorically objectionable, 
one could easily write rules more adapted to the 
legitimate need. The first two provisions allow stu­
dents to transfer from the school in their residential 
zone if the school formerly served only students of a 
different race, whether or not the majority of students 
in the school are now of a different race. The last 
provision allows any student to transfer from a school 
in which he is a member of a minority race even where 
49 percent of the students are of his race.) I f  the 
transfer provisions were really intended to protect 
students who are in a small racial minority—the only 
situation where serious educational or psychological 
problems seem likely—this could have been done more 
appropriately by allowing, for example, a student to 
transfer when only a small percent of the students 
were of his race. Such a provision, while we believe it 
invalid in these circumstances, would at least avoid 
the resegregation of a school which had a close 
racial balance by the withdrawal of all or most stu­
dents of the race which was in a slight minority.

Even more important, there are practical alterna­
tives—which are not based on racial criteria and which 
do not support segregation—for meeting any legiti­
mate educational problems of the children affected.25 23 *

23 At the least, these alternatives appear to be practical and
there is no indication in this record that they would not be 
so either in Knoxville or Davidson County. Since, as we have 
contended (pp. 34-35), the school boards had the burden of 
showing that the transfer plans were absolutely necessary to 
encourage desegregation, we must assume in the present posture 
of these cases that the alternatives would prove as practical 
in Knoxville and Davidson County as in the other places they 
have been tried.



37

First, the school board, might allow any child who so 
desired to transfer to any school which had available 
space. This would mean that no child would be re­
quired to attend a school overwhelmingly composed 
of students of another race. On the other hand, all 
students would have the opportunity to attend schools 
which were desegregated—not just the few students 
who happened to be in mixed residential zones. Thus, 
the open transfer system would make no distinctions 
in terms of race, give full freedom of choice, and 
thereby encourage the desegregation of all the schools 
in the jurisdiction. And the practicability of this 
plan is demonstrated by its use in numerous big cities 
with large Negro populations, such as Louisville and 
Baltimore.24

Second, a modification of the open transfer plan is 
suggested by the opinion of the Court of Appeals 
for the Fifth Circuit in Bush v. Orleans Parish 
School Board, 308 F. 2d 491. There, the Orleans 
Parish School Board had requested the right to trans­
fer children according to the provisions of the Louisi­
ana pupil placement law. The court allowed the use

34 In  Louisville, the plan provides for redistricting without 
regard to race. Parents are advised that they can request 
transfers to schools outside of the district to which their chil­
dren are assigned, and they axe asked to list three prefer­
ences as to schools. Transfers are granted on the basis of 
available space, convenience for the child, and individual 
preferences. I t  is reported that 90 percent of the parents 
requesting transfers have received their first choice. Wey and 
Corey, Action Patterns In  School Desegregation, pp. 97-98. In 
Baltimore, there are no geographic school districts. A child 
may transfer from the school he is then attending. to any 
school in the city, with the approval of the principals in­
volved. Id. at pp. 99, 148.



38

of the placement act, but went further than merely 
ordering the authorities to use it non-discriminatorily. 
Because of past incidents of total withdrawal of white 
children from schools which were ordered desegre­
gated, the court gave the Negro children the right to 
follow migrating white pupils. The order read (id. 
at 502) :

Negro children who attended formerly all-white 
schools in 1960-61 and 1961-62 and Negro 
children who have registered for attendance at 
formerly all-white schools in 1962-63 and sub­
sequent years may not be transferred or as­
signed to an all-Negro school against their 
wishes. If  the transfer of white students from 
such schools would result in resegregation, the 
Negro children shall be afforded an opportunity 
to attend a nearby formerly all-white school 
without being subjected to tests for transfer un­
der the Pupil Placement Act.25 25

25 See also McCoy v. Greensboro City Board of Education, 
179 F. Supp. 745 (M.D. N.C.), reversed, 283 F. 2d 667 (C.A. 
4). There the Negro plaintiffs applied for admission to a 
white school. The school board agreed to admit Negroes to 
the school but at the same time granted transfers to the white 
children and teachers. The district court dismissed the com­
plaint on the ground that plaintiffs had been admitted to the 
school of their choice. The court of appeals reversed and re­
manded the decision with instructions that the district court 
retain jurisdiction “so that the Board may reassign the minor 
plaintiffs to an appropriate school in accordance with their 
constitutional rights and so that the plaintiffs, if these rights 
are improperly denied, may apply to the court, for further 
relief in the pending action.” 283 F. 2d at 670. The court 
condemned the board’s action on the ground that “although 
the colored children gained admission to a superior building, 
their desire to attend an integrated school was completely 
frustrated.” Id. at 669.



39

Third, the desegregation plan of the school board 
might entirely or substantially eliminate the problem 
of a small minority of students of one race in a school 
largely composed of another by drawing the resi­
dential zones in a way which achieved a better balance 
in some or all schools. Any educational problems for 
the few students of the other race left in the zone of a 
virtually all-white or all-Negro school could then be 
solved on an individual basis. Were such measures 
adopted even the temporary transfer provisions here 
involved would be comparatively unobjectionable, for 
this method produces meaningful desegregation of the 
schools, in full compliance with the Fourteenth 
Amendment, instead of the merely technical desegre­
gation which results from allowing a few Negroes to 
attend formerly all-white schools.

Fourth, where two schools exist, one formerly 
Negro and one white, relatively close to one another, 
the school board may assign all children, both Negro 
and white, formerly attending the lower grades in both 
schools (for example, kindergarten to third grade) 
to one school and all the children formerly attending 
the upper grades to another. The result is again to 
further the process of desegregation and, at the same 
time, to avoid assigning a small minority of children 
of one race to a school largely composed of children 
of another. This method, called the “Princeton Plan”, 
after the city in New Jersey where it was employed, 
has also been used in numerous other communities in 
New Jersey and in Benton Harbor, Michigan, Willow 
Grove, Pennsylvania, and elsewhere. See Greenberg, 
Race Relations and American Law, p. 248.



40

Fifth, any educational problems, psychological or 
otherwise, resulting from requiring children of one 
race to attend a school largely composed of children 
of another race may be handled by a transfer provi­
sion not based on racial criteria. For example, in 
Dallas, Texas, initial assignments are made to neigh­
borhood schools and transfers are then granted on an 
individual basis using the criteria of the state pupil- 
placement law, which specifically forbids the consid­
eration of race as a factor warranting transfer. See 
Boson v. Rippy, 285 F. 2d 43, 47 (C.A. 5). The valid­
ity of such a non-racial transfer provision is demon­
strated by the cases upholding pupil placement laws 
whenever they were administered without relation to 
race (see supra, pp. 26-27).

A community is not only entitled to allow, but 
should encourage, pupils to transfer when the change 
will be of educational benefit. We see no reason why 
the appropriate school authorities should not recog­
nize any bona fide problems of individual adjustment 
affecting students’ educational welfare. But the 
test must genuinely be not the race but the 
benefit to the children. Racial segregation cannot be 
maintained by creating a presumption that requiring 
children to attend school with children of a different 
race is always or generally educationally and psycho­
logically harmful. Moreover, such a transfer provi­
sion focussed upon the welfare of pupils would allow 
the transfer of Negro children to desegregated schools 
on the basis Of a showing that this would be to their 
educational and psychological benefit. Cf. Brown v. 
Board of Education, 347 U.S. 483, 494.



41

We do not advocate any particular plan of desegre­
gation. The plans summarized above are relevant 
only to show that there are a great many alternative 
ways of meeting whatever problems may result from 
requiring a few Negro or white students to attend 
schools largely attended by children of the other race. 
There is no evidence, nor even a suggestion, that some 
such procedure would not be fully practicable in 
Knoxville and Davidson County. In  these circum­
stances at least, we submit, the transfer provisions 
explicitly based upon racial criteria and encouraging 
resegregation are invalid as parts of the present 
Knoxville and Davidson County plans of desegre­
gation.

CONCLUSION

For the foregoing reasons, we respectfully submit 
that the judgments below should be reversed and the 
cases remanded to the respective district courts.

A rchibald Cox,
Solicitor General. 

B urke Marshall,
Assistant Attorney General. 
B ruce J. T erris,

Assistant to the Solicitor General. 
H arold H. Greene,
H oward A. Glickstein,

Attorneys.
J anuary 1963.

U.S.  GOVERNMENT PRINTING OFFICE: 1963