Goss v. Knoxville, TN Board of Education Appellants' Brief

    1 st t h e

In fill  B 'M m  (Eimri n i Appeals
F ob the S ixth Circuit

No. 14,759

J osephine Goss and Thomas A. Goss, infants by 
R alph Goss, their father and next friend (et al.),

Appellants,
—v.—

The B oard of E ducation of K noxville, Tennessee, a body 
corporate or continuous legal entity, c/o Dr. J ohn H. 
B urkhart, President (et al.),

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TENNESSEE, 

NORTHERN DIVISION

APPELLANTS’ BRIEF

Carl A. Cowan
2212 Vine Avenue, S.E. 
Knoxville 15, Tennessee

Z. A lexander L ooby and 
A von N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

J ack Greenberg and 
J ambs M. N abrit, III 

10 Columbus Circle 
New York 19, New York
Attorneys for Appellants

D errick A. B ell 
Michael Meltsner 

Of Counsel



Statement o f Questions Involved

Whether the action of the Board in denying immediate 
and equal access to its vocational and technical training 
facilities for all students without regard to race fell short 
of the standard required by the Fourteenth Amendment 
when the sole justification therefor was alleged fears of 
violence and overcrowdedness.

The Court below answered the question—No.
Appellants contend that it should be answered—Yes.

Does the Board’s plan fail to provide equal vocational 
training opportunities to qualified Negro students seeking 
courses offered only at the white school where it requires 
an administrative effort to establish a duplicate course at 
the Negro school before the Negro students may transfer 
and receive the course where it is regularly offered, es­
pecially when such duplicate course, if established, is likely 
to be inferior to its original?

The Court below answered the question—No.
Appellants contend that it should be answered—Yes.

x



TABLE OF CONTENTS TO BRIEF

PAGE

Statement of Questions Involved........ ............ ............  i

Statement of Facts ........... ..............................................  1

Argument ......... .................................... ......................... 5

Relief ..........................................................-.................. - 13

Table op Cases

Blackwell v. Fairfax County School Board (E. D. Va.
1960) 5 Race Rel. Law R ep. 1056 ....      9

Bosun v. Rippy, 285 F. 2d 43 (5th Cir. 1960) .............  10
Brown v. Board of Education, 347 U. S. 483 .......   12
Brown v. Board of Education, 349 U. S. 294 .......... 6, 7, 8, 9
Buchanan v. Warley, 245 TJ. S. 60 ................................ 6

Cooper v. Aaron, 358 U. S. 1 ........ .............................. 6, 7, 8

Evans v. Buchanan, 172 F. Supp. 508 (D. Del. 1959) .... 7
Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ..........  7, 9

Louisiana State Board of Education v. Allen, 287 F. 2d 
33 (5th Cir. 1961) ...... .... .........................................  11

Sipuel v. Oklahoma State Regents, 332 U. S. 631....... . 12
Sweatt v. Painter, 339 U. S. 629 .......... .............. ..........  12

m



INDEX TO APPENDIX

PAGE

Relevant Docket Entries ..............................................  la

Defendant’s Vocational and Technical Training Plan 
for Negro Students.....................................................  4a

Plaintiffs’ Objections to Plan for Vocational and Tech­
nical Training ...................................... —-..................  9a

Excerpts From Hearing of June 15, 1961 .................  15a
Testimony of T. N. Johnston

Direct.........................................................   15a
Cross ........................ ——..............................—- 27a

Opinion of the District Court Dated June 19, 1961 ......  38a

Defendants’ Statement in Response to Court’s Opinion 
of June 15, 1961 .........................................................  46a

Plaintiffs’ Statement in Opposition to Defendants’ 
Statement in Response to Court’s Opinion of June 
15, 1961 .................     51a

Excerpts From Hearing of September 14, 1961 ...........  55a
Testimony of T. N. Johnston

Direct......................................................   55a
Cross ................................................... -...........  67a
Redirect........................................    81a

iv



V

PAGE

Opinion of the District Court Dated September 20,
1961 ............................................................................. 82a

Judgment of the District Court Dated September 20,
1961 ............................................................................. 87a

Notice of Appeal Filed September 21, 1961 .....    89a



Statement o f Facts

This suit was instituted to end compulsory segregation 
in the public schools of Knoxville, Tennessee. On August 
19, 1960, the district court approved a gradual “Grade- 
A-Year” plan for the desegregation of the Knoxville pub­
lic schools, and on August 26, 1960, entered a final order 
thereon, from which plaintiffs appealed. This first appeal 
is now pending before this Court as No. 14,425, and the 
pleadings, transcript and other relevant papers filed prior 
to December 14, 1960, are contained in the appendix to 
appellants’ brief in No. 14,425. The pleadings, transcript 
and other relevant papers pertaining to this appeal are 
contained in the appendix to this brief.

The district court’s approval of the Board’s “Grade-A- 
Year” plan was qualified by a direction that defendants 
restudy the problem of,giving colored students access to 
technical courses at the all-white Fulton High School not 
offered at the Negro Austin High School, and present a 
plan within a “reasonable time”. On March 31, 1961, de­
fendants filed a second plan (5a-8a), and it is from the 
approval of said plan by the district court (87a-88a) that 
this second appeal is taken.

The plan submitted by the Board provides, so far as 
appellants are concerned, for the continuance of the present 
policy of racial segregation, i.e., retaining vocational facil­
ities at Austin High School for Negroes and at Fulton High 
School for whites. When a course cannot be established 
at the Negro school for lack of a sufficient number of quali­
fied students, and the course is already available at the 
white school, the Negro student interested in the course 
may apply for transfer upon special terms which are made 
a part of the plan.



2

On April 10, 1961, appellants filed objections to the plan 
(9a-14a), moved that the plan be disapproved, and prayed 
that the injunctive relief sought in the complaint be granted 
as to all technical schools or courses as well as summer 
courses and other educational training of a specialized 
nature.

On June 15, 1961, a hearing was held on the plan, at 
which Superintendent of Schools T. N. Johnston testified 
that fifteen vocational courses are offered at Fulton, eleven 
of which (machine shop, sheet metal work, radio, television, 
printing, drafting, commercial photography, commercial 
art, electricity,1 refrigeration and air conditioning and dis­
tributive education) are not among the nine courses offered 
at Austin (16a, 17a). Under the Board’s plan, a Negro 
student may request a transfer to obtain a course not 
offered at the Austin school (18a), but such transfer will 
be approved only after it is established that there are not 
fifteen or more interested and qualified Negro students in 
the Austin school, in which case, by the terms of the plan, 
the course would be set up at Austin. A factor considered 
before such new course is established is the student’s chance 
of securing employment in the occupation at the completion 
of his training (22a).

On cross-examination, Superintendent Johnston admitted 
that Austin High School is a segregated Negro school, 
and that unless white students apply to take one of four 
courses offered at Austin and not available at Fulton, 
Austin will remain a Negro school (28a). The Superin­
tendent explained that the plan contemplated desegrega­
tion only when a course is offered at one school and not 
the other in a situation where the school without the course 
lacks a sufficient number of qualified students to permit 
setting up the course, or where students from the two 
schools can be combined in sufficient numbers to form a



3

class (30a). Where there are sufficient numbers of students 
to form a course in one school there will be no integration 
(30a).

On June 19, 1961, the court filed a memorandum opinion 
approving the plan with the exception that the Board was 
to restudy the problem of a Negro student who lives near 
Fulton High School and who possesses the necessary vo­
cational qualifications to enter Fulton and who “should not 
be required to travel across town to attend Austin High 
School when Fulton is much closer” (44a). In this con­
nection, the court requested the Board to come forth with 
a plan “that will meet the difficulty, if it is a real diffi­
culty . . . ” (45a).

On July 27, 1961, the Board filed a statement in response 
to the court’s opinion urging that the basic effect of the 
Grade-A-Year plan should be preserved, “that is, that all 
reasonable steps be taken to thwart the creation of con­
ditions which would strongly tend to cause violent inter­
ruption of schooling and the possible accompanying de­
struction of school property” (48a). The Board asserted 
that the expansion of the admission of Negroes to Fulton 
High School, as suggested by the court’s opinion of June 
15, 1961, “creates a greater risk than the Board is willing 
to initiate” (48a), explaining that facts, not apparent as 
of June 15, 1961, indicated the number of Negroes apply­
ing to Fulton might number two hundred (200), as op­
posed to the ten (10) or fifteen (15) which the Board felt 
originally was the maximum who might attend under the 
planned transfer provision (48a).

On July 26, 1961, appellants filed a statement in opposi­
tion to the Board’s statement (51a-54a), maintaining that 
the Board’s denial of their rights because of the alleged 
fear of community hostility was unconstitutional, and that



4

the allegations as to the number of Negroes who would 
apply to Fulton High School are purely speculative and 
contrary to any evidence presented by the Board whose 
superintendent had testified at the hearing that he saw 
no reason why Negro students living closer to Fulton and 
desiring courses there should not be permitted to enroll.

A second hearing was held on September 14, 1961, at 
which Superintendent Johnston reported that to permit all 
Negro students living closer to Fulton High School to 
attend Fulton would overtax Fulton’s facilities more than 
had been formerly thought (56a). Since he believed that 
great numbers of Negro.students would be involved (57a), 
the orderly processes of the Fulton school would be upset 
(57a), while Austin’s enrollment would drop below ca­
pacity (61a-66a).

Nevertheless, on cross-examination Superintendent John­
ston admitted that no census of applicants had been made 
(67a), that there are white children who live closer to 
Austin than to Fulton (71a), and that of approximately 
162 Negro students who would have the right to apply for 
transfer if residence were the test (78a), only three Negroes 
have applied for transfer under the terms of the Board’s 
vocational training plan (79a), and one of these students 
(Eddie Davis.) applied for a transfer to study commercial 
art at Fulton, but that two weeks or more after school 
began, his request had still not been granted because the 
authorities were, trying to establish a course at Austin, 
during which time the student was attending a non- 
accredited class (69a-71a).

On September 20, 1961, the court filed a judgment ap­
proving the plan filed on March 31, 1961. In an opinion, 
the court found that approximately 386 technical students 
lived closer to Fulton than Austin, and that if all these



5

students availed themselves of the opportunity of attend­
ing Fulton, the school would be overtaxed. The court also 
decided that granting permission for colored technical stu­
dents to attend Fulton would be an unjust discrimination 
against colored academic students (86a).

Notice of appeal to this Court was filed September 21, 
1961.

ARGUMENT

I.
W hether the action  o f  the Board in  denying im m e­

diate and equal access to its vocational and technical 
training facilities  fo r  a ll students w ithout regard to race 
fe ll  short o f  the standard required by the Fourteenth  
A m endm ent w hen the sole justification  therefor was 
alleged fears o f  v io len ce  and overcrow dedness.

T he court below  answered the question— No.

A ppellants contend that it should  be answered— Yes.

While the court below approved the gradual Grade-A- 
Year plan for the desegregation of the Knoxville Public 
Schools (appeal pending as No. 14,425 in this Court), it 
found the plan deficient as applied to technical and voca­
tional students who would be precluded from ever partici­
pating in specialized courses not taught at the Negro high 
school (39a). Ruling that Negro students must be given 
“equal opportunities for an education” the conrt directed 
the Board to restudy the problem and present a plan 
“which will give the colored students who desire those tech­
nical courses an opportunity to take them” (39a-40a). Ap­
pellants submit that the plan submitted by the Board does 
not provide access to vocational training without regard



6

to race, and that the twin fears of violence and overcrowded 
conditions are equally incapable of justifying this failure.

Under the controlling authority of Brown v. Board of 
Education, 349 U. S. 294, 300, 301, the Board was obligated 
to carry out desegregation of its vocational and technical 
training facilities without delay, unless clear proof of 
administrative difficulties such as physical condition of the 
school plant, transportation, personnel, revision of school 
districts or attendance areas, etc., were deemed to justify 
deferment.

The record in this case, however, clearly indicates that 
both the Board and the court below relied upon fear of 
community hostility and violence as justification for delay 
in desegregation and the maintenance of unequal facilities 
(48a, 49a, 74a, 86a, 39a). Such reliance was contrary to 
the express holdings of the United States Supreme Court 
in Brown v. Board of Education, 349 U. S. 294, and Cooper 
v. Aaron, 358 U. S. 1, where the Court was faced with a 
request for delay of desegregation in the context of a 
record replete with indications of violent opposition to 
desegregation. Despite such findings of actual opposition 
and its effects (which must be compared with the Knoxville 
authorities’ mere predictions and apprehensions of future 
difficulties) the Supreme Court unanimously rejected the 
argument that such opposition afforded a legal basis for 
delaying compliance.

“Constitutional rights” said the Court in Cooper, supra, 
“are not to be sacrificed or yielded to the violence and 
disorder . . . ” (358 U. S. at 16), and “ . . . law and order 
are not here to be preserved by depriving the Negro chil­
dren of their constitutional rights.” 358 U. S. at 16, citing 
Buchanan v. Warley, 245 U. S. 60, 81.



7

As to tlie consideration which may be given the possi­
bility of violence in formulating desegregation plans, the 
Court in Cooper v. Aaron reaffirmed its holding in the 
Brown case, supra, by indicating that “in many locations, 
obedience to the duty of desegregation would require the 
immediate general admission of Negro children, . . . ” 358 
U. S. at 10. Relevant factors may be considered by district 
courts in appraising the adequacy of a particular plan, 
but such factors may not include hostility to desegregation.

An argument identical to that made by the Board here 
was urged and accepted by the trial court in the Delaware 
school segregation case, Evans v. Buchanan, 172 F. Supp. 
508, 511, 512, 513, 514-515 (D. Del. 1959), but the Third 
Circuit Court of Appeals, relying on Cooper, supra, made 
short shrift of these arguments and rejected the conclusion 
that the community attitudes toward desegregation could 
be considered in formulating a plan of desegregation or 
could. justify delay in extending an opportunity for a 
desegregated education to pupils at all grade levels. Evans 
v. Ennis, 281 F. 2d 385, 389 (3rd Cir. 1960).

It is an evident common sense proposition that a rule of 
law allowing opponents of desegregation to achieve their 
objective of thwarting compliance with Brown, or of delay­
ing or slowing compliance, on the basis of community op­
position would encourage just such resistance. Indeed, this 
was apparently recognized by the court below which stated:

“The Court hesitates to make any reference to any 
serious disorder that might develop if a full desegre­
gation order were entered as to Fulton at this time. 
This subject was fully explored by the Court in its 
memorandum opinion following the first hearing. It 
is the feeling of the Court that the least that can be 
said about these matters, the better it is for the com­
munity” (86a).



8

Appellants respectfully submit that compliance with the 
Brown decision is not furthered by a principle of consider­
ing community opposition, but not mentioning it. Only 
the principle enunciated by the Supreme Court in Cooper 
v. Aaron, that community opposition and threatened or 
actual disorders cannot be permitted to interfere with 
desegregation or govern its pace can secure compliance in 
communities prone to oppose the decision.

The Board’s concern that desegregation of all vocational 
courses would lead to the overcrowding of those classes 
offered at the Fulton school, while serving as a tacit ad­
mission of the superiority of the facilities available at the 
Fulton school, provides on the proof presented, no more 
justification for delaying desegregation than the Board’s 
fear of community hostility. The Board’s first position as 
recorded by the court below was that they “could see no 
reason why the colored student . . . (living closer to Fulton 
and desiring courses offered there) should not be permitted 
to take vocational courses in Fulton” (44a). But when re­
quested to amend the plan to provide for such transfers, 
the Board suddenly found, without benefit of any survey or 
census of possible applicants, that permitting such trans­
fers would lead to overcrowding of the Fulton school. The 
superintendent admitted that as of two weeks after the 
beginning of the school year, Fulton was operating at less 
than capacity (64a), but based his fear of overcrowding 
on the unlikely occurrence that, if racial barriers were 
removed, all Negro vocational students living closer to 
Fulton than to Austin, and presently attending Austin, 
would apply to Fulton.

Of course, there is no proof in the record indicating that 
all such eligible students would apply, and there is con­
siderable indication that only a small number would apply 
(69a, 78a, 79a). And with racial designations removed from



9

the school, there would be no reason why white students 
living closer to Austin could not be transferred there (73a). 
Finally, if a demand for places in Fulton greater than that 
school’s capacity actually should occur, the Brown case, 
supra, bars the Board from reserving the available places 
for white students and relegating Negroes to the inferior 
facilities of Austin. Bather, the community as a whole, 
on a nonracial basis should bare the burden of the inferior 
school.

In short, the Board is attempting to deny Negroes ac­
cess to equal, as well as desegregated, education on the 
basis of an abstract and hypothetical fear of overtaxed 
facilities. In Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960), 
the Third Circuit rejected similar arguments that any ex­
tension of desegregation would overtax school facilities, 
observing that there was no evidence to actually indicate 
how many of the eligible Negro pupils would apply to 
attend the white schools. 281 F. 2d at 388-389, 390; cf., 
Blackwell v. Fairfax County School Board (E. D. Va., 
C. A. No. 1967, Sep. 22, 1960), reported unofficially at 5 
R a c e  R e l a t io n s  L a w  R e p o r t e r  1056.

There is, of course, no merit to the court below’s finding 
that admission of Negro vocational students to Fulton 
would be an unjust discrimination against Negro academic 
students. The right to a desegregated education is a per­
sonal right, Brown v. Board of Education, 349 U. S. 294. 
And to withhold desegregation of some Negroes because 
of the continued segregation of others is to justify one 
discrimination by another. Particularly ironic is the court 
below’s denial of a desegregated education to some Negroes 
by pointing to others who, by the court’s own act, are also 
denied a desegregated education.



10

II.

D oes the Board’s p lan  fa il to provide equal vocational 
train ing opportunities to qualified  Negro students seek­
ing  courses offered only at the w hite school w here it 
requires an adm inistrative effort to establish a duplicate  
course at the Negro sch ool before  the Negro students 
m ay transfer and receive the course w here it is regularly  
offered, especia lly  w hen such duplicate course, i f  estab­
lish ed , is lik e ly  to be in fer ior  to its original?

A ppellants contend that it should  be answ ered-—Yes.

T he court below  answered the question-—No.

As pointed out above, the Board failed to show any 
valid reason for delaying desegregation of their vocational 
and technical facilities. In the absence of such justification, 
the plan presented by the Board and adopted by the dis­
trict court, under the applicable decisions of the Supreme 
Court, should be held invalid.

But not only does the Board’s plan operate to maintain 
segregation in the vocational and technical curriculum, it 
actually increases the number of segregated classes, thereby 
decreasing the possibility that Negro students will be pro­
vided with the equal opportunities originally required by 
the court below. For when a Negro student applies for 
one of the eleven courses offered only at the white school, 
the plan requires school authorities to first determine 
whether there are enough other Negro students interested 
in the course to set up a similar course at the Negro school. 
Such plans and procedures tending to perpetuate segrega­
tion have been criticized in principle, Bosun v. Rippy, 285 
F. 2d 43, 47 (5th Cir. 1960), and has in this situation 
proven unworkable in practice.



11

Testimony at the September 14th hearing showed that 
one Negro student had made application for the commer­
cial art course at Fulton High School, but that almost two 
weeks after school had opened, the Austin High School 
principal was still reviewing student enrollment cards in 
an effort to obtain a sufficient number of Negro students 
interested in commercial art to permit a class to be set up 
at the Austin School (69a). During this period, the in­
struction being given the student could not be counted for 
credit (77a-78a), although the. accredited course at Fulton 
was one student short of capacity (81a). Furthermore, 
under the plan as finally accepted by the court below, this 
student would be required to continue in attendance at 
Austin High even if he lived next door to Fulton High 
(86a), all solely because of his race.

The Board’s plan, moreover, permits discrimination by 
requiring the consideration of certain factors prior to the 
setting up of a new course. These include: the applicant’s 
probable ability to benefit by the instruction given, and 
his chances of securing employment in the occupation after 
he has secured the training. Applying these requirements 
to a Negro student who applies for almost any of the 
courses offered solely at Fulton High would pose a serious 
handicap to his application since opportunities for Negroes 
in many vocational fields are at present quite limited not 
only in . the Knoxville area but. nationwide. The denial of 
Negro applicants for vocational training using similar 
criteria was enjoined in Louisiana State Board, of Educar- 
tion v. Allen, 287 F. 2d 33 (5th Cir. 1961), and it is sub­
mitted that its use here is equally bad.

Finally, while Superintendent Johnston refused to give 
definite answers to questions concerning the quality of



12

courses at Austin which would be initiated under the plan 
as a result of the indicated desire of a few Negro students 
to receive training in a course at the white school (36a- 
37a), it is significant that the Board offered no testimony 
to show that the courses at the Negro school, of necessity 
hastily arranged, would be equal in quality to those offered 
at the white school. As indicated above, the Board inad­
vertently shed some light on the situation by voicing its 
fears that if residence, and not race, were made the sole 
admission standard for the two high schools, Fulton would 
soon be overcrowded.

The picture becomes even clearer when it is considered 
that of the fifteen courses offered at the Fulton School, 
only four are available to Negro students at Austin High. 
Among these are courses such as radio, television, photog­
raphy, commercial art and air conditioning, all of great 
interest to the youth seeking a useful vocation for the 
modern world.

The teaching of decisions of the Supreme Court in the 
field of education even prior to Brown v. Board of Educa­
tion, 347 U. S. 483, was that a Negro student is entitled to 
immediate equality of training offered by the State without 
waiting for special facilities to be obtained for him, Sipuel 
v. Oklahoma State Regents, 332 U. S. 631, and that in pro­
viding so-called equal opportunities for Negro students, 
there must be a careful balancing of all aspects of educa­
tion, Sweatt v. Painter, 339 U. S. 629. By even these 
standards, it is necessary to conclude that the plan for



13

providing vocational and technical training to appellants 
and the class they represent is completely inadequate and 
violates their rights under the Fourteenth Amendment.

R elie f

For the foregoing reasons appellants submit that the 
judgment of the court below should be reversed and that the 
cause should be remanded with directions to the trial court 
to enter an order requiring appellees to immediately admit 
appellants and the class they represent to vocational courses 
offered by the Knoxville schools to which they are qualified 
without regard to their race or color.

Respectfully submitted,

Carl A. Cowan

2212 Vine Avenue, S.E. 
Knoxville 15, Tennessee

Z. A lexander L ooby and
A von N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

J ack Greenberg and
J ames M. N abrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants
Derrick A. B ell 
Michael Meltsner 

Of Counsel