Gaines v. Dougherty County Board of Education Brief for Appellants

    I;n t h e

Imtrd Butm  (Court of AppraLs
F oe t h e  F if t h  C iec u it

No. 20984

S h ir ley  G a in es , et al.,
Appellants,

D ougherty  County  B oard oe E ducation , et al.,
Appellees.

ON APPEAL EEOM THE UNITED STATES DISTRICT COURT 
FOE THE MIDDLE DISTRICT OF GEORGIA 

ALBANY DIVISION

BRIEF FOR APPELLANTS

Constance B aker M otley
N orman C. A m akee 

10 Columbus Circle 
New York 19, New York

C. B, K ing
P. 0. Box 1024 
Albany, Georgia

D onald L. H ollo w ell  
Cannolene Building 
859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants



I N D E X

Statement of the Case ........ ....................................... . 1

Specifications of Error ..................................................  6

A rgum ent  I
Appellees’ Desegregation Plan Is Not a Plan by 
Which Desegregation of the School System Can Be 
Accomplished Nor Is the Twelve-Year Delay Con­
templated by It Justified ........... ............................  7

A rg u m en t  I I

The District Court Erred in Refusing to Require 
Appellees to Make a Start Toward Desegregation 
in 1963-64 .................................... ............................  13

Conclusion  .................................... ............................ .................. —. 18

T able oe Ca se s :

Armstrong v. Board of Education of City of Birming­
ham, 323 F. 2d 333 (5th Cir. 1963) ..................... 7,13,15

Augustus v. Board of Public Instruction, 306 F. 2d 862 
(5th Cir. 1962) .............................................................. 8

Board of School Commissioners of Mobile County et al.
v. Davis,----- - U. S .----- , 11 L. ed. 2d 26 (Aug. 16,
1963) ............................- ............................ ................. 16

Boson v. Rippy, 285 F. 2d 43 (1960) ....................... . 12
Brown v. Board of Education, 347 U. S. 483 (1954) .......3, 7
Brown v. Board of Education, 349 U. S. 294 (1955) ..7,13,17

PAGE;



11

Bush v. Orleans Parish School Board, 308 F. 2d 491 
(1962) ................................ ........................................... 7, 8

Cooper v. Aaron, 358 U. S. 1 (1958) ............ .............7,12,17

Davis v. Board of School Commissioners of Mobile
County, Alabama, 318 F. 2d 63 (1963) ........... .......... 12

Davis v. Board of School Commissioners of Mobile
County, 322 F. 2d 356 (5th Cir. 1963) ....................... 15

Davis v. East Baton Rouge Parish School Board, 219 
F. Supp. 876 (E. D. La. 1963) ............... ...................  14

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ______ 12

Goss v. Board of Education of the City of Knoxville,
301 F. 2d 164 (6th Cir. 1962) ................. ..................... 12

Goss v. Board of Education of the City of Knoxville,
373 U. S. 683, 10 L. ed. 2d 632 (1963) .......... ...........11,13

Harris v. Gibson and Glynn County Board of Educa­
tion (No. 20871, Sept. 12, 1963) ____ ______ _____  15

Hereford v. Huntsville Board of Education (No. 63-109,
N. D. Ala., August 13, 1963) ................... ............14,15-16

Holland v. Board of Public Instruction, 258 F. 2d 730 
(1958) ................................. ...................................... . 7

Jackson v. School Board of City of Lynchburg, Va.,
321 F. 2d 230 (4th Cir. 1963) __ ______ ______ ___10,12

Jones v. School Board of the City of Alexandria, 278 
F. 2d 72 (4th Cir. 1960) ...... ........................................  8

Lee v. Macon County Board of Education, 221 F. Supp.
297 (M. D. Ala. 1963) .................. .............................  14

Louisiana State Board of Education v. Allen, 287 F. 2d 
32 (5th Cir. 1961), cert. den. 368 U. S. 830

PAGE

11



Ill

Louisiana State Board of Education v. Angel, 287 F. 2d
PAGE

33 (5th Cir. 1961) ....... ..................... ..... ................___ n

Northcross v. Board of Education of the City of Mem­
phis, 302 F. 2d 818 (6th Cir. 1962)  ........... ............. .8,10

Potts v. Flax, 313 F. 2d 284 (1962)  ......................... 7

Rippy v. Borders, 250 F. 2d 690 (1957) ........... .............  7

Stell v. Savannah-Chatham County Board of Educa­
tion, 318 F. 2d 425 (5th Cir. 1963) ........................... 15

Watson v. City of Memphis, 373 U. S. 526, 10 L. ed.
2d 529 ..............................................................11,13,14,16



I n  t h e

United (Emtrt nf Appeals
F oe t h e  F if t h  Cib c u it  

No. 20984

S h ib ley  Ga in es , et al.,
Appellants,

D ougheety  C ounty  B oabd of E ducation , et al.,
Appellees.

on appeal fbom  t h e  u n ited  states distbict coubt
FOB THE MIDDLE DISTBICT OF GEOBGIA 

ALBANY DIVISION

BRIEF FOR APPELLANTS

Statement of the Case

This appeal presents for review the plan of desegrega­
tion offered by the Dougherty County Board of Education 
(Albany, Georgia) and the action of the United States Dis­
trict Court for the Middle District of Georgia, Albany Divi­
sion in approving that plan over appellants’—plaintiffs 
below—objections. The order appealed from was entered 
by District Judge Elliott with opinion on August 27, 1963 
(B. 146-156).

By an earlier order and opinion (July 12, 1963, R. 23-30) 
the district court had required the school board to submit a 
desegregation plan after finding that the board was operat­
ing a racially segregated school system (R. 2S). This find­



2

ing was based on 1) a complaint filed by plaintiffs, minors 
of the Negro race and their parents, on April 5, 1963 as a 
spurious class action against the school board and the super­
intendent of schools alleging that the school authorities 
were operating a compulsory biracial school system in 
Dougherty County including the maintenance of a dual set 
of school zone lines and initial racial assignments thereafter 
perpetuated by a racially oriented feeder system and that 
the assignment of professional school personnel was like­
wise made on a racial basis. The complaint prayed a decree 
enjoining the operation of the dual racial system and alter­
natively prayed that the court direct defendants to present 
a desegregation plan (R. 1-12); 2) an answer (R. 20) in 
which operation of a dual educational system was admitted 
by the defendants; and 3) a hearing held on July 8, 1963 
on a motion for preliminary injunction filed by plaintiffs on 
May 2, 1963 repeating the prayer of the complaint (R. 16).

The order of July 12 required the defendants to submit 
a desegregation plan to the court within 30 days (R. 29). 
The plan was submitted on August 12, 1963 (R. 30). The 
plan, though submitted before the scheduled opening of the 
schools in September, did not provide for any start toward 
desegregation in the 1963-64 school year but postponed ini­
tiation of the desegregation process until 1964-65, and con­
templated a twelve-year period before that process would 
be completed.

Under the plan, existing racial assignments were to re­
main unchanged and pupils entering the first grade in 1964- 
65 were to register at the schools of their choice during a 
county-wide registration period set up under the plan to be 
held beginning the first Monday in April and continuing 
through Friday of that week. This “free choice” of the 
pupils was limited however by their proximity to the school, 
the building capacity, and transportation. The plan further



3

provided that this “free choice” was to be acted upon by the 
board as requests for assignment and specified that notice 
of the board’s action on these “free choice” requests was to 
be transmitted to the parents or guardians of the children 
involved no later than June 1, 1964 with a right thereafter 
on the part of the parent or guardian to request in writing 
a hearing before the board if not satisfied with the assign­
ment which hearing was to be held on or before June 20, 
1964. Finally, the plan provided that this procedure was 
to be followed in each ensuing year one grade at a time 
(R, 30-33).

Plaintiffs, in objections filed with the court on August 
14,1963 complained of the defendants’ plan in the following 
respects:

1. That the plan failed to make a start toward desegrega­
tion in the 1963-64 school year;

2. That the plan’s “free choice” provision was illusory 
because this provision did not insure desegregation of the 
schools in 1964-65 since it did not clearly provide that new 
pupils entering the first grade or coming into the county 
for the first time would attend schools as a matter of right 
in the residential areas in which they live;

3. That the plan did not abolish the dual school zones 
but continued the assignment of school children within the 
framework of the existing segregated system which system 
included the assignment of teachers and other supervisory 
personnel on a racial basis;

4. That the defendants had not shown that the twelve- 
year period contemplated under the plan was necessary 
and this showing was crucial particularly since more than 
9 years had elapsed since the decision in Brown v. Board of 
Education, 347 U. S. 483 (1954).



4

5. Plaintiffs further objected to the plan on the ground 
that the named plaintiffs were not assured of securing their 
personal and present right to a desegregated education.

6. Finally, plaintiffs objected on the ground that the 
plan failed to provide a method for the present desegrega­
tion of the separate vocational schools maintained by the 
county on a racial basis. Accordingly, plaintiffs prayed 
that the plan be disapproved, a revised plan submitted 
and “minimum effective relief” be granted by requiring a 
start toward desegregation in September 1963 (E. 34-36).

Hearing was held by the District Court on the objections 
on August 22, 1963 (E. 37) at which the testimony of the 
Superintendent of Schools was offered in justification of 
the plan. He testified that the failure to make a start 
toward desegregation in 1963-64 and the twelve-year period 
of delay was necessary because: (1) The assignments of 
pupils and teachers and the allocation of books for the 1963- 
64 school year had already been made (E. 52), and (2) 
time was needed to prepare the community to accept de­
segregation in order that an orderly transition could be 
made from the segregated system to a nonsegregated sys­
tem (E. 43-44, 46-48, 57, 59, 62-63). In fact, community 
hostility was presented as the major reason for not having 
the plan go into effect in September 1963 (E. 104). How­
ever, the Superintendent could point to nothing specific 
to buttress his claim that initial forbearance and gradual 
accommodation thereafter would in fact aid community 
acceptance (E. 61). With respect to making a start toward 
desegregation by admitting a few Negro students to previ­
ously all-white schools in September 1963 as had been done 
by other communities such as Savannah, Georgia; Mobile, 
Birmingham, Tuskegee and Huntsville, Alabama and Baton 
Eouge, Louisiana, it was his view that granting admission



5

to the named plaintiffs (as had been suggested) to the 
schools of their choice for the coming school year would be 
to grant “special privileges” to them which would place 
the board in an “untenable position” (R, 55, 59). Therefore, 
the Superintendent felt that it was impossible to make a 
start in 1963-64 even though under the plan the plaintiffs 
who brought the suit would never experience any desegre­
gated education (R. 64).

Other testimony by the Superintendent exposed addi­
tional weaknesses in the plan. For example, he testified 
that there are separate zone lines for the Negro and white 
schools (R. 74) but the plan makes no provision for redraw­
ing these lines (R. 78); that the plan makes no provision 
for the placement of students coming into the county for 
the first time in grades above the first in schools on a non- 
racial basis (R. 81); that the plan makes no provision for 
desegregation of the two vocational schools maintained 
separately for Negroes and whites because these schools 
are a joint operation of the state and county boards of 
education and consent of the state board would have to be 
obtained in order to desegregate them even though there 
is no written agreement between the county and state 
boards requiring segregated operation (R. 78-80).

The major deficiency of the plan as illuminated by the 
Superintendent’s testimony is that the “free choice” of 
students is qualified in such a way as to render assurance 
of desegregation impossible. He testified that desegrega­
tion would result only if a Negro applied for admission 
to a formerly all-white school, if the applicant lived nearer 
to that school than to some other school, if there was room 
in the school, and if there was no transportation problem 
(R. 83-84). Hence according to his testimony, no desegrega­
tion will result if there are no Negro applicants for “white” 
schools (R. 84, 97, 99).



6

On August 27, 1963 Judge Elliott entered the order ap­
pealed from here (E. 146). That order upheld the sub­
mitted plan in every particular finding it “to be reasonable 
and adequate to accomplish the desired results (of desegre­
gation).” The court, feeling that “ [a] surcease from sensa­
tion” was desired, held that to order any degree of desegre­
gation for September 1963 “would be at variance with the 
concept of ‘deliberate speed’ and would be a rash act caus­
ing unnecessary confusion in the administration of the 
schools . . . ” With respect to plaintiffs’ urging that a 
start be made in 1963-64 by requiring the board to assign the 
named plaintiffs to the schools of their choice, the court 
stated that this “would have the effect of inviting the de­
struction of the . . . plan.” The court also refused to rule 
on the question of teacher assignment or to require desegre­
gation of the vocational schools (E. 154-155).

Notice of Appeal was filed on September 3, 1963 (E. 
157-158).

Specifications of Error

The District Court erred in:
(1) refusing to order the named plaintiffs admitted to 

the schools of their choice for September 1963;
(2) considering community hostility as a grounds for de­

laying desegregation until the 1964-65 school year;
(3) failing to order the abolition of existing school zone 

lines based on race and the reorganization of the 
public school system on a nonracial basis;

(4) refusing to provide for the assignment of teachers 
and other professional personnel without regard 
to race or color;



7

(5) failing to order desegregation in the vocational 
schools operated by the board;

(6) approving the “grade-a-year” provision of the plan 
which nine years after Brown proposes to delay 
desegregation of the connty schools yet another 
twelve years.

A R G U M E N T

I.

Appellees’ Desegregation Plan Is Not a Plan by Which 
Desegregation of the School System Can Be Accom­
plished Nor Is the Twelve-Year Delay Contemplated by 
It justified.

1. Despite the monumental clarity with which both de­
cisions in Brown v. Board of Education, 347 U. S. 483 
(1954), 349 U. S. 294 (1955) and Cooper v. Aaron, 358 U. S. 
1 (1958) as well as numerous decisions of this court, Rippy 
v. Borders, 250 F. 2d 690, 693 (1957) ; Holland v. Board of 
Public Instruction, 258 F. 2d 730, 733 (1958); Bush v. Or­
leans Parish School Board, 308 F. 2d 491, 499 (1962); Potts 
v. Flax, 313 F. 2d 284 (1962) and Armstrong v. Board of 
Education of Birmingham, 323 F. 2d 333, 337 (1963) have 
enjoined upon school officials the primary duty of eliminat­
ing system-wide racial segregation in the administration 
of public schools, the desegregation plan offered by the 
school board here and approved by the District Court fails 
utterly as a means for accomplishing this crucial task. 
The reluctance by Dougherty County officials to discharge 
their responsibility of total desegregation throughout the 
school system is seen most clearly, though not at all en­
tirely, in their submission of a plan containing an illusory 
“free choice” provision in the context of the continued



8

maintenance of a dual scheme of zone lines for white and 
Negro schools. There is unanimous agreement among all 
the federal circuit courts that have passed upon school 
desegregation cases that a threshold requirement for com­
plying with the Brown decisions is the elimination of dual 
zones based on race. Augustus v. Board of Public Instruc­
tion, 306 F. 2d 862, 869 (5th Cir. 1962); Bush v. Orleans 
Parish School Board, supra; Jones v. School Board of the 
City of Alexandria, 278 F. 2d 72, 76 (4th Cir. 1960); North- 
cross v. Board of Education of the City of Memphis, 302 
F. 2d 818, 823 (6th Cir. 1962). Nothing less than the eradi­
cation of the dual zones fulfills the obligation of school 
officials to disestablish the segregated school systems pre­
viously established by them.

Manifestly, the school board here has not assumed its 
obligation of disestablishment. It has maintained the dual 
system (R. 74, 78) and proposed to admit Negro applicants 
to formerly all-white schools under a “free-choice” arrange­
ment closely analogous to the Parent School Preference 
Card System held inadequate in Augustus v. Board of Pub­
lic Instruction, supra, where this court stated that, “The 
plan should . . . more clearly provide for the admission 
of new pupils entering the first grade, or coming into the 
County for the first time, on a nonracial basis” (306 F. 2d at 
369). Under the provisions of the plan involved here, 
no provision is made for new pupils coming into the county 
for the first time to attend school on a non-racial basis 
and there is no assurance that any actual desegregation 
of the first grade will occur in 1964 (as would be assured 
if the school lines were redrawn and every child who lived 
in the zone of a school serving that zone were simply as­
signed to that school by the board irrespective of his race) 
since the “free choice” of those seeking desegregation is 
circumscribed in such a way as to require Negro students 
to apply to the schools they desire to attend if there’s to be



9

any desegregation at all.* Hence, under this plan, Negro 
children and their parents must once again assume the bur-

* This was brought out repeatedly at the hearing on the objec­
tions to the plan in the following exchanges between counsel for 
the plaintiffs and the chief witness, the school superintendent:

1) Q. Mrs. Motley: And you’re not able to demonstrate to this 
Court, are you, that this plan will in 1964 result in the ad­
mission of some Negroes to white schools? A. I can assure 
you that it will.
Q. All right, now we want to know how that can be assured? 
A. Well, there are some who live, their nearest school they 
live nearer today; there are some today who live nearer to 
schools that are being operated all white schools than they 
do to schools that are Negro schools; and some of those 
students will be admitted; probably not all that make appli­
cation, but certainly there will be some that will be.
Q. And you can say to this Court that you’re sure that there 
are some white schools where Negroes live closer than they 
do to Negro schools, which are under-enrolled and which 
would not involve any transportation problem; so that, if 
those Negroes apply, they would go in, is that right? A. They 
probably will, yes.
Q. Probably will? A. Yes, under this plan, they would.
Q. In other words, it’s not certain, is it? First, you’ve got 
to have a Negro to apply, isn’t that right? A. That’s right. 
Q. Then, you’ve got to have a Negro who lives nearer to a 
white school, isn’t that right? A. That’s right.
Q. And then, you’ve got to have room in that school .for that 
student, isn’t that right? A. That’s right.
Q. And then, you have to have a student that doesn’t have 
any transportation problem, isn’t that right? A. Yes.
Q. So, you’ve got four factors operating there, all of which 
must come together in order for the Negro to get in? A. 
That’s right.
Q. So that, if no Negro applies next year, you’re not going 
to have any desegregation, are you? A. I wouldn’t think so 
[E. 83-84].

2) Q. Let me ask you this, in other words, if no Negro applies 
in April, 1964, I think you admitted before there wouldn’t 
be any desegregation, is that right? A. That’s right 
[K, 97-98].

3) Q. And if no Negro applies, you just go on and operate 
segregated schools, right? A. That’s right [E. 99].



10

den of going forward and asking for their constitutional 
rights. But as the Sixth Circuit said in Northcross v. 
Board of Education of the City of Memphis, supra, “Negro 
children cannot be required to apply for that to which they 
are entitled as a matter of right” (302 F. 2d at p. 823).

2. Neither has the burden for disestablishing the segre­
gated school system been met by the failure of the board’s 
plan to provide for the desegregation of teachers and other 
staff personnel or the indefinite postponement by the Dis­
trict Court of the consideration of the assignment of 
teachers on a nonracial basis. If desegregation of the school 
system is not to be an empty bauble, then the major sup­
port of segregated systems that is found in the fact that 
in front of every Negro class there is a Negro teacher and 
in front of every white class there is a white teacher must 
be removed. Full compliance with Brown’s requirement that 
racially discriminatory school systems must be replaced 
by racially nondiscriminatory systems requires the reas­
signment of teachers and other staff personnel on the basis 
of qualification and need without regard to race. In Jack- 
son v. School Board of the City of Lynchburg, Va., 321 
F. 2d 230 (1963) recently decided by the Fourth Circuit, 
that court stated its view that the complaint’s prayer call­
ing “for an order compelling the board to ‘effect . . .  a 
transition to a racially non-discriminatory school system’ 
. . .  is broad enough to comprehend all aspects of the schools’ 
operations.” 321 F. 2d at 233. It is submitted that this is 
the only view that conforms with Brown’s requirement that 
a transition to racially non-discriminatory school systems 
be made. Cf. Northcross v. Board of Education, supra, 
p. 823:

The first Brown case decided that separate schools 
organized on a racial basis are contrary to the Con­
stitution of the United States.



11

3. The plan submitted by the board and approved by the 
court also made no provision for desegregation of the two 
vocational schools under the board’s jurisdiction. Though 
the superintendent testified that these schools were a joint 
operation of the appellee school board and the state school 
board, his testimony made clear that primary responsibility 
for the policy of segregation was with the local board (E. 
79). Consequently, the failure of the board to provide for 
desegregation of the vocational schools was another in­
stance of its untrammeled reluctance to disestablish the 
segregation that it had established. And of course, even if 
the state board of education were alone responsible for 
segregation of the vocational schools, their desegregation is 
still required. Louisiana State Board of Education v. Allen, 
287 F. 2d 32 (5th Cir. 1961), cert. den. 368 U. S. 830; 
Louisiana State Board of Education v. Angel, 287 F. 2d 
33 (5th Cir. 1961).

4. A further vice of the board’s plan is the twelve-year 
span of implementation. As the Supreme Court recently 
made clear in Watson v. City of Memphis, 373 U. S. 526, 
10 L. ed. 2d 529, and Goss v. Board of Education of the City 
of Knoxville, 373 U. S. 683, 10 L. ed. 2d 632, the time al­
lotted to school boards for completion of the desegregation 
process is rapidly decreasing. As the Court said in Watson:

Given the extended time which has elapsed, it is far 
from clear that the mandate of the second Brown deci­
sion requiring that desegregation proceed with “all de­
liberate speed” would today be fully satisfied by types 
of plans or programs for desegregation of public educa­
tional facilities which eight years ago might have been
deemed sufficient. 373 U. S. 526,----- , 10 L. ed. 2d 529,
534.



12

Now, more than nine years after the Brown decision, this 
school board has proposed a plan, accepted by the District 
Court, which compounds its deficiencies by proposing to 
delay desegregation for twelve more years.

Increasingly, courts passing on desegregation plans, have 
been manifesting their impatience with the action of school 
officials who operate on the assumption that they have no 
duty to change the status quo until ordered to do so by a 
court and who, theretofore, having taken no steps to “ [de­
velop] arrangements pointed toward the earliest practicable 
completion of desegregation,” Cooper v. Aaron, 358 U. S. 1, 
7, have then proposed “grade-a-year” plans perpetuating 
the frustration of the enjoyment of constitutional rights. 
This Court in Davis v. Board of School Commissioners of 
Mobile County, Alabama, 318 F. 2d 63, 64 (1963) stated that 
“ . . . the amount of time available for the transition from 
segregated to desegregated schools becomes more sharply 
limited with the passage of the years since the first and 
second Brown decisions” and in Boson v. Bippy, 285 F. 2d 
43 (1960), this Court approved a grade-a-year plan as a 
start but stated that, “In so directing, we do not mean to ap­
prove the twelve-year stair-step plan insofar as it post­
pones full integration’” (at page 47). See also Evans v. 
Ennis, 281 F. 2d 385, 389 (3rd Cir. 1960); Goss v. Board of 
Education of the City of Knoxville, 301 F. 2d 164 (6th Cir. 
1962), reversed on other grounds, 373 U. S. 683 (1963); 
Jackson v. School Board of City of Lynchburg, Va., supra,. 
In Jackson the Fourth Circuit considering the Supreme 
Court’s decision in Watson, supra, held that “the ‘grade-a- 
year’ plan promulgated by the Lynchburg School Board, for 
initial implementation eight years after the first Brown 
decision, cannot now be sustained” (at page 233).



13

II.
The District Court Erred in Refusing to Require Ap­

pellees to Make a Start Toward Desegregation in 1963- 
64=

Not only did the District Court err in approving a plan 
grossly inadequate to accomplish the task of converting the 
present dual biracial school system of Dougherty County 
into a unitary nonracial system (I supra), it also refused 
to order appellees to make “at the very minimum, . . .  a 
good faith start toward according the plaintiffs and the 
members of the class represented by them their constitu­
tional rights so long delayed.” Armstrong v. Board of 
Education of City of Birmingham, 323 F. 2d 333, 338 (5th 
Cir. 1963) (emphasis added). For the Supreme Court in 
the second Brown case was insistent that the District 
Courts, to whose care was committed the implementation 
of the constitutional principles announced in the first Brown 
case, should in performing this function, “require that the 
defendants make a prompt and reasonable start toward full 
compliance with our May 17, 1954 ruling.” 349 U. S. 300.

Yet, nine years after the first Brown decision and more 
than eight years after the Supreme Court had ruled that 
school officials were required to “make a prompt and reason­
able start,” no start towards desegregation has been made 
by the Dougherty County school officials. Dougherty County 
in this respect, is no different from countless numbers of 
other localities in which officials choose to emphasize “de­
liberate” rather than “speed.” Consequently, in its last 
term, the United States Supreme Court, in Watson v. City 
of Memphis, 373 U. S. 526, 10 L. ed. 2d 529 and Goss v. 
Board of Education of the City of Knoxville, 373 U. S. 683, 
10 L. ed. 2d 632, expressed an understandable impatience 
with school officials, like those involved here, who choose to



14

ignore rather than to comply with the clear mandate of the 
Brown decisions. The Supreme Court said in Watson that, 
“Brown never contemplated that the concept of ‘deliberate 
speed’ would countenance indefinite delay in elimination of
racial barriers in schools . . . ” 373 U. S. 526,----- , 10 L. ed.
2d 529, 534.

Perceiving the clear warning gleaned from the opinions 
in the Watson and Goss cases that the United States Su­
preme Court was growing increasingly intolerant of further 
delay in performing the necessary task of school desegrega­
tion, several District Courts, during the past summer, in 
ruling on school segregation suits against school officials 
of communities which had not theretofore taken any steps 
toward desegregation (like the Dougherty County school 
officials), were scrupulous in requiring these school officials 
“at the very minimum” to make a start in the conversion of 
their biracial school systems. Among these were Baton 
Rouge, Louisiana, Davis v. East Baton Rouge Parish School 
Board, 219 F. Supp. 876 (E. D. La. 1963); Huntsville, Ala­
bama, Hereford v. Huntsville Board of Education (No. 63- 
109, N. D. Ala., August 13, 1963); and Tuskegee, Alabama, 
Lee v. Macon County Board of Education, 221 F. Supp. 297 
(M. D. Ala. 1963). The District Courts which considered 
these cases required some minimal desegregation of the 
schools commencing in September 1963, thus performing 
the duty imposed upon them by the Supreme Court without 
the necessity of intervention by this Court.

Other District Courts, however, failed to grant to plain­
tiffs in school cases arising in other communities during 
recent months, the relief to which they were entitled and, 
consequently, this Court on review had to assume the re­
sponsibility for implementing the governing constitutional 
principles. Among the communities that were required by 
order of this Court to make a start toward desegregation



15

in the current school year, were Savannah, Georgia, Stell 
v. Savannah-Chatham County Board of Education, 318 F. 
2d 425 (5th Cir. 1963); Birmingham, Alabama, Armstrong 
v. Board of Education of City of Birmingham, supra; and 
Mobile, Alabama, Davis v. Board of School Commissioners 
of Mobile County, 322 F. 2d 356 (5th Cir. 1963). In all 
of these cases whether decided alone by the District Courts 
or whether pursuant to the orders of this Court, the method 
used for implementation of some measure of desegrega­
tion was that of requiring the appropriate school officials 
to admit at least a few Negro school children to formerly 
all-white schools in September 1963.#

Plaintiffs below, in view of the fact that the school 
board’s plan was not presented to the District Court until 
August 12, 1963 and the hearing on their objections was 
not held until August 22, 1963, less than two weeks prior 
to the scheduled opening of the Dougherty County Schools, 
asked the District Court to order the defendants to do no 
more than these other communities had been required 
to do for the purpose of complying initially with the pre­
script of Brown that a start be made, viz., that some Negro 
children be placed in the county schools in September 1963, 
and that those children be the plaintiffs named in the suit 
since as to them there was no conceivable problem that the 
board could have in placing them. This is what Judge 
Grooms of Alabama’s Northern District did in the Hunts­
ville school case. Hereford v. Huntsville Board of Educa-

* However, in Glynn County, Georgia, the school board had 
voluntarily undertaken to begin desegregation in September when 
it was prevented from doing so by the District Court. Accordingly, 
this Court vacated the District Court’s restraining order and 
granted an injunction pending appeal framed in the same terms 
as that issued earlier with respect to Savannah (Stell, supra) 
pursuant to which six Negro children were admitted to the for­
merly all-white high school in September. Harris v. Gibson and 
Glynn County Board of Education, No. 20871, Sept. 12, 1963.



16

tion, supra, in which the four named plaintiffs were ad­
mitted to the schools of their choice for the purpose of 
making a start.

And as Mr. Justice Black concluded in declining to grant 
a stay of this Court’s order requiring Mobile School officials 
to make a sta rt:

I t is difficult to conceive of any administrative prob­
lems which could justify the Board in failing in 1963 
to make a start towards ending the racial discrimina­
tion in the public schools which is forbidden by the 
Equal Protection Clause of the Fourteenth Amend­
ment as authoritatively determined by this Court in 
Brown nine years ago. Board of School Commission­
ers of Mobile County et al. v. Davis,----- U. S . ------ ,
11 L. ed. 2d 26, 29 (Aug. 16, 1963).

Notwithstanding, the somewhat baffling reaction of the 
District Court here was that to grant this relief in 
Dougherty County “would have the effect of inviting the 
destruction of the . . . plan” proposed by the school board 
(R. 154). Aside from being the most reasonable expedient 
in the circumstances, to have admitted the named plain­
tiffs to the schools of their choice in September 1963 would 
have been to recognize their personal and present right 
to be freed from invidious discrimination with respect to 
school attendance because of their race. As the second 
Brown case makes clear, “ [a]t stake is the personal in­
terest of the plaintiffs in admission to public schools as 
soon as practicable on a nondiscriminatory basis.” 349 
U. S. 300 (emphasis added). Cf. Watson v. City of Mem­
phis, supra: “the rights here asserted are, like all such 
rights, present rights; they are not merely hopes to some 
future enjoyment of some formalistic constitutional prom­
ise.” 373 U. S. 526,----- -, L. ed. 2d 529, 535.



17

At the hearing on the plan the Superintendent of Schools 
initially claimed that he and the other school officials could 
not place the named plaintiffs in the schools of their choice 
in September 1963 (aside from the fact that, in his view, 
to do so would be to grant “special privileges” to them 
(R. 59)), because they would be prevented from doing so 
by the problem of the “mechanics” of making such an 
adjustment in light of the fact that all assignments had been 
made for the coming school year (R. 48). However, when 
pressed by counsel for the plaintiffs, he admitted that 
if 200 students were to have moved into the county prior 
to the opening of school in September and were to have 
applied for admission to the schools the system, would 
somehow have found a way to accommodate them (R. 50, 
52-53). Ultimately, he was constrained to admit that the 
mechanics of handling the transfer of the named plaintiffs 
to formerly all-white schools in 1963 was actually “a minor 
problem” (R. 86), and that his major reason for claim­
ing that it was impossible to admit the named plaintiffs 
was due to the anticipated community hostility to making 
a change from the former segregated system (R. 104). As 
a reason for delaying school desegregation, community 
hostility has never been entitled to any consideration 
whatsoever. Brown v. Board of Education, 349 U. S. 294, 
300; Cooper v. Aaron, 358 U. S. 1, 16. For as was pointed 
out by counsel for the plaintiffs during the course of the 
hearing, the factor of community hostility to desegrega­
tion makes the factor of race operative in the considera­
tion of making assignments to the schools (R. 102-103). 
As thus exposed, the real reason for refusing to make a 
start toward desegregation, commended by the District 
Court in terms of “a surcease from sensation” (R. 154), 
is a reason that has never been and cannot ever be allowed 
to frustrate a claim of constitutional right.



18

CONCLUSION

The judgment of the District Court approving appellees’ 
plan and refusing to order a start toward desegregation in 
September 1963, should be reversed and the case remanded 
to that court with directions to require the School Board to 
initiate desegregation for the coming mid-year semester 
and to submit a revised plan covering the objections made 
by Appellants pursuant to which the dual school system 
will be disestablished commencing with the 1964-65 school 
year. Since it is now too late for a start to be made for 
the current semester, the named plaintiffs should be ad­
mitted to the schools of their choice for the 1964 winter 
semester only for the purpose of initiating the desegrega­
tion process and thereafter desegregation should occur in 
conformity with the revised plan which under no circum­
stances should be permitted to encompass a period of twelve 
years.

Respectfully submitted,

C onstance B aker M otley
N orman C. A maker 

10 Columbus Circle 
New York 19, New York

C. B. K ing
P. 0. Box 1024 
Albany, Georgia

D onald L. H ollo w ell  
Cannolene Building 
859!/2 Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants



19

CERTIFICATE OF SERVICE

This is to certify that on the 26th day of November, 1963, 
I served a copy of the foregoing Brief for Appellants 
upon Jesse W. Walters, 409 North Jackson Street, Albany, 
Georgia, Attorney for Appellees, by mailing a copy thereof 
to him at the above address via U. S. mail, Air Mail, postage 
prepaid.

Attorney for Appellants



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