Goss v. Knoxville, TN Board of Education Appendix to Plaintiffs-Appellants' Brief

    luiteii States GImtrt nf Appeals
F ob the Sixth Cibcixit

No. 15,432

J osephine Goss, et al.,
Plaintiffs-Appellants,

-v-

T he B oard oe E ducation op the 
City op K noxville, T ennessee, et al.,

Defendants-Appellees.

Appeal F bom the U nited States D istrict Court pob the 
E astern District op T ennessee, Northern Division

APPENDIX TO PLAINTIFFS-APPELLANTS’ BRIEF

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

Z. Alexander L ooby 
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

J ack Greenberg 
J ames M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiff's-Appellants.



INDEX TO APPEN DIX

PAGE

Motion for Further Relief .......  ................................. 5a

Statement of Defendants in Response to Motion for 
Further Relief .......................................................  6a.

Amendment to Plan of Desegregation.....................  7a

Specifications of Objections to Amended Plan Filed 
by Knoxville Board of Education ......................... 9a

Amendment to Specifications of Objections to 
Amended Plan Filed by Knoxville Board of Edu­
cation ...................   15a

Reply of Defendant Knoxville Board of Education 
to Specifications of Objections to Amended Plan .... 16a

Report on Behalf of Board of Education of the City 
of Knoxville............................................................. 18a

Specifications of Objections to Second Amended Plan 
Filed by Knoxville Board of Education .............. 20a

Excerpts From Transcript—April 1, 1963 ...........  22a
Defendants’ Witnesses:

Dr. John H. Burkhart
Direct.....................................................  22a
Cross .................................................... 27a

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



11

PAGE
Thomas N. Johnston

Direct .......................................     49a
Cross .....................................................  62a
Redirect ................................................  103a
Recross ..................................................  104a

Exhibit No. 1 ...........................  105a

Exhibit No. 2 ............................................................. 107a

Farther Report of Board of Education of the City 
of Knoxville ...........................................................  108a

Judgment ....................................................................  109a

Opinion of Robert L. Taylor, U.S.D.J.......................  112a

Notice of Appeal .......................................   118a

Report of Changes in Desegregation Plan Made by 
the Board of Education in Response to Order of 
April 4, 1963 ...........................................................  119a

Proposed Action to Meet District Court’s Decree on 
Desegregation .........................................................  120a



1962 
June 8

June 18 

June 22 

Aug. 3

Ittttefn States iiatrirt (tart
Civil Docket 3984

J osephine Goss, et al.,

—v.-
Plaintiffs,

T he Boabd op E ducation op the 
City op K noxville, Tennessee, et al.,

Defendants.

R elevant D ocket Entries

Mandate and copy of Opinion of U. S. Court of 
Appeals, affirming in part, modifying in part, 
and remanding cause for further proceedings, 
filed.
Motion for further relief on behalf of plaintiffs, 
filed.

Statement of Defendants in Response to Motion 
for Further Relief Filed.

Mandate and copy of Opinion of U. S. Court of 
Appeals affirming judgment except insofar as 
it pertains to transfer procedures and remand­
ing case to District Judge with instructions to 
retain jurisdiction and to require an amendment 
that will permit all students to transfer as a 
matter of right, when they qualify for the courses 
which they desire to take in another one of the 
two high schools here involved, and such course 
is not available to them in the school they are 
attending, filed.



2a

Aug. 15 Amendment to plan of desegregation to include 
the fourth grade, as well as the third grade, 
effective September 1, 1962, filed.

Sept. 18 Specifications of Objections to Amended Plan 
filed by Knoxville Board of Education filed.

Sept. 19 Amendment to Specifications of Objections to 
Amended Plan filed by Knoxville Board of Edu­
cation, filed.

Oct. 16 Reply of defendant Knoxville Board of Edu­
cation to specifications of objections to amended 
plan, filed.

1963
Mar. 16 Certified copy of resolution of Board of Educa­

tion, filed.
Mar. 16 Report on behalf of Board of Education of the 

City of Knoxville, filed.
Mar. 28 Specifications of objections to second amended 

plan filed by Knoxville Board of Education, filed.
April 1 Further Report of Board of Education of the 

City of Knoxville filed.
April 1 Exhibits No. 1 and 2, filed.
April 1 Order of hearing of specifications of objections 

to amended plan, evidence and statements of 
counsel heard, the Court approved the plan of 
desegregation through the sixth grade in Sep­
tember 1963; Ordered that distributive educa­
tion classes be made available to Negroes—either 
in white or negro schools; ordered that Negroes 
be admitted to Van Gilder School or that a 
similar facility be made available to Austin High 
School, entered in Civ. Ord. Bk. 25, page 57.

Relevant Docket Entries



3a

April 4 Judgment and order that the Board of Education 
put plan of desegregation as amended into ef­
fect, including the desegregation of the summer 
high schools; that the Board take further action 
effecting such change in administration and 
transfer procedures in the Fulton Vocational and 
Technical Plan as shall make said plan fully 
conform to the opinion of the Court of Appeals, 
Sixth Circuit announced on July 6, 1962; that 
the Board shall effectuate such enlargement or 
change in its administration of that portion of 
its educational program known as the Vangilder 
Program so as to provide equal and like courses 
of training at Austin or other Negro high school 
for the Negro pupils, or if such not be provided, 
so as to admit pupils to the school teaching and 
facilities in this program without regard to race; 
and likewise the distributive education courses 
now provided by the Board; that the jurisdic­
tion of the action is retained during period of 
transition, to all of the foregoing action of the 
court except Paragraph 2(d) the plaintiffs ex­
cept, entered in Civil Order Book 25, page 67 
and filed.

April 29 Opinion of Judge Robert L. Taylor as rendered 
from the Bench, that the Board file an amended 
plan with respect to Fulton High School showing 
that it complied with mandate of Court of Ap­
peals ; that classes for children comparable to 
those which are now being operated in white 
schools be made available and that the colored 
children who qualify be admitted to classes if 
and when they apply; in all other respects the

Relevant Docket Entries



4a

Relevant Docket Entries

amended plan is approved; classes will be made 
available for the distributive education colored 
students within a reasonable time; the original 
opinion stands as amended by Court of Appeals 
in the mandate; and counsel to prepare and pre­
sent order in conformity with views expressed 
herein, filed.

May 2 Notice of Appeal filed.

May 7 Original copy of Transcript of Proceedings on 
Specifications of Objections to Amended Plan 
filed.

May 15 Report of changes in desegregation plan made 
by the Board of Education in response to Order 
of April 4, 1963 filed.



5a

M otion for  Further R e lie f

I n the
DISTRICT COURT OF THE UNITED STATES 

F oe the E astern District of T ennessee 

Northern Division

[ same t it l e ]

Come the plaintiffs and respectfully move the Court 
to require the defendants to file immediately, a supplemen­
tal plan for accelerating desegregation of the City Schools 
of Knoxville, Tennessee as of the beginning of the 1962- 
1963 academic school year, in accordance with the mandate 
and opinion of the United State Court of Appeals for the 
Sixth Circuit filed in this Court on 8 June 1962, said opin­
ion having been rendered and filed by the Court of Appeals 
with its Clerk on 3 April 1962.

Z. Alexander L ooby and
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

Carl A. Cowan 
2212 Vine Avenue, S.E.

Knoxville 15, Tennessee
J ack Greenberg 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs



6a

Statem ent o f  D efendants in  R esponse to M otion  
fo r  Further R e lie f

I n the
DISTRICT COURT OF THE UNITED STATES

F ob the E astern D istrict oe T ennessee 

Northern Division

[ sam e  t it l e ]

In response to motion for further relief filed by Plaintiff, 
Defendants say that the pressure of problems of annexa­
tion and the proposal of consolidation has delayed comple­
tion of an amended plan of desegregation, and may fur­
ther delay this but Defendants expect to file such a plan 
by August 1st of this year. Since the plan is not to be 
effective until September, it is believed that Plaintiffs 
will not suffer hardship if the plan is filed by August 1st.

S. F rank F owler



7a

A m endm ent to P lan  o f  D esegregation

I s  THE
DISTRICT COURT OF THE UNITED STATES 

F or the E asters District of T essessee 

Northern Division

[ same t it l e ]

Pursuant to the opinion and mandate of the Court of 
Appeals for the Sixth Circuit filed herein on June 8, 1962, 
the defendant Board of Education has amended the plan 
of desegregation for the public schools of Knoxville, Ten­
nessee, which plan was filed herein on April 8, 1960.
The amendatory action consisted of the adoption of a resolu­
tion which concurred in the recommendation of Superin­
tendent Johnston that the school integration schedule be 
stepped up to include the fourth grade, as well as the third 
grade, effective September 1, 1962. A copy of the rele­
vant portion of the minutes is attached.

This August 14th, 1962.

S. F rank F owler 
Attorney for Defendants

1412 Hamilton National Bank Building 
Knoxville, Tennessee



8a

EXCERPT FROM SPECIAL MEETING OF THE 
BOARD OF EDUCATION, KNOXVILLE, TENNES­
SEE ANNEXED TO AMENDMENT

Minutes of a special meeting of the Board of Education 
held in the office of the Board at Fifth and Central at 12:00 
noon on Monday, June 25, 1962.

Members present: Dr. Burkhart, Mrs. Chapman, Mr. 
Linville, Mr. Ray and Mr. Shafer.

I ntegration Schedule

Superintendent Johnston recommended that the school 
integration schedule be stepped up to include the 4th grade 
as well as the 3rd grade, effective September 1, 1962.

On motion made by Mr. Ray and seconded by Mr. Lin­
ville, it was moved that the Board concur in the Superin­
tendent’s recommendation. Motion carried.



9a

Specifications o f  O bjections to A m ended P lan  F iled  
by K n oxv ille  Board o f  E ducation

I n the
UNITED STATES DISTRICT COURT
F or the E astern District of T ennessee 

Northern Division

[ same t it l e ]

The plaintiffs, Josephine Goss, et al., respectfully object 
to the amended plan filed in the above entitled cause on 
or about the 14th day of August, 1962, by the defendant, 
The Board of Education of the City of Knoxville, Ten­
nessee, and specify as ground of objection the following:

1. That the amended plan, providing that the school 
integration schedule be stepped up to include the fourth 
grade as well as the third grade, effective September 1,1962, 
does not provide for elimination of racial segregation of 
the public schools of Knoxville “with all deliberate speed” 
as required by the due process and equal protection clauses 
of the Fourteenth Amendment to the Constitution of the 
United States.

2. That the amended plan does not take into account the 
period of over five (5) years which elapsed during which 
the defendant, Knoxville Board of Education, completely 
failed and refused to comply with the said requirements 
of the due process and equal protection clauses of the 
Fourteenth Amendment to the Constitution of the United 
States as enunciated by the decisions of the Supreme Court 
in Brown v. Board of Education on May 17, 1954,—347 
U S 483, 74 S. Ct. 686 and on May 31, 1955,-349 U S 294,



10a

75 S. Ct. 753. The defendant refused to put any plan into 
effect until September 1960 when the grade a year plan was 
initiated pursuant to a judgment of this Court on August 
20, 1960.

3. The amended plan does not take into account the 
period of over eight (8) years which have elapsed since 
the first Brown decision.

4. The amended plan adopted at this late date does 
not meet either the spirit or specific requirements of the 
decision of the Supreme Court, and the decision of the 
United States Court of Appeals for the Sixth Circuit (April 
3, 1962).

5. That the additional eight (8) years period provided 
in said plan does not realistically and promptly accelerate 
desegregation and does not comply with the Mandates of 
the Supreme Court and the Court of Appeals for “good faith 
compliance at the earliest practicable date.”

6. That the additional eight (8) year period provided 
in said plan is not “necessary in the public interest” and is 
not “consistent with good faith compliance at the earliest 
practicable date” in accordance with the said requirements 
of due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United States.

7. The defendants have not carried their burden of 
showing any problems related to public school administra­
tion arising from:

a. “the physical condition of the School Plant”;
b. “the school transportation system”;

Specifications of Objections to Amended Plan



11a

c. “personnel” ;
d. “revision of school districts and attendance areas 

into compact units to achieve a system of determining 
admission to the public schools on a non-racial basis” ;

e. “revision of local laws and regulations which may 
be necessary in solving the foregoing problems” ;

as specified by the Supreme Court in Brown v. Board of 
Education (May 31, 1955), 349 U S 294, 75 S. Ct. 753, 99 
L Ed 653, which necessitate the additional time contem­
plated by their plan for compliance with the constitutional 
requirements of a racially unsegregated public educa­
tional system.

8. That the amended plan forever deprives the infant 
plaintiffs and all other Negro children now enrolled in 
the public schools of Knoxville, Tennessee above the fourth 
grade of their rights to a racially unsegregated public edu­
cation, except for the courses of technical and vocational 
training available for Negro students at Fulton High 
School when said courses are not offered at Austin High 
School, and for this reason violated the due process and 
equal protection clauses of the Fourteenth Amendment of 
the Constitution of the United States.

9. That the amended plan fails to eliminate racial segre­
gation in technical and vocational training and forever de­
prives infant plaintiffs and all other Negro children en­
rolled in the public schools of Knoxville above the fourth 
grade of their rights to enroll in and attend Fulton Tech­
nical High School and other special technical and voca­
tional schools, except for the narrow and restricted excep­
tion mentioned hereinabove, as to which residence is not

Specifications of Objections to Amended Plan



12a

based on location of residence and for this reason does 
not comply with the decisions of the Supreme Court in 
Brown v. Board of Education, Supra, and violates the due 
process and equal protection clauses of the Fourteenth 
Amendment of the Constitution of the United States. Con­
siderations based on race are involved in all of the pres­
ent practices and plans of the defendant Board as to 
whether or not a student seeking technical and vocational 
training is required to enroll and attend Fulton High School 
or is required to enroll and attend Austin High School, and 
the racial factors therein provided are manifestly designed 
and necessarily operate to perpetuate racial segregation. 
Said plaintiffs and those similarly situated are thereby de­
prived of due process of law and the equal protection of the 
laws, is violation of the Fourteenth Amendment of the 
Constitution of the United States.

10. That the amended plan forever deprives the infant 
plaintiffs and all other Negro children now enrolled in the 
public schools of Knoxville above the fourth grade of their 
rights to enroll in and attend summer schools as to which 
enrollment is not based on location of residence, and for 
this reason, said plan does not comply with the decisions 
of the Supreme Court in Brown v. Board of Education, 
Supra, and violates the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution 
of the United States.

11. That the amended plan forever deprives the infant 
plaintiffs and all other Negro children now enrolled in the 
public schools of Knoxville above the fourth grade of their 
rights to enroll in and attend schools or classes for handi­
capped children, schools or classes for gifted children and 
any other educational training of a specialized nature as to

Specifications of Objections to Amended Plan



13a

which enrollment is not based on location of residence, and 
for this reason said plan does not comply with the decisions 
of the Supreme Court in Brown v. Board of Education, 
Supra, and violated the due process and equal protection 
clauses of the Fourteenth Amendment of the Constitution 
of the United States.

W herefore, the P laintiffs P ray:

1. That the Court advance this cause upon the docket 
and set the matter for hearing on an early date certain, 
upon the amended plan of the defendant Board of Education 
of the City of Knoxville and plaintiffs’ above objections 
thereto.

2. That the said plan now proposed by defendant Board 
of Education of the City of Knoxville be disapproved by the 
Court as not conforming to the due process and equal pro­
tection clauses of the Fourteenth Amendment of the Con­
stitution of the United States.

3. That the Court order the defendant Board to submit 
a supplemental and realistic plan forthwith that will sub­
stantially and promptly accelerate desegregation and there­
by comply with the Mandates of the Supreme Court and the 
Court of Appeals for “good faith compliance at the earliest 
practicable date,” as to the remaining eight grades; and 
as to the summer schools or courses, technical and voca­
tional schools or courses, schools or courses for handi­
capped children and schools or courses for gifted children 
and any other educational training of a specialized nature 
and as to which enrollment is not based on location of resi­
dence, in the public school system of Knoxville; that said 
supplemental plan to be effective not later than the be­

Specifications of Objections to Amended Plan



14a

ginning of the Winter Semester or Term of the City 
Schools of Knoxville in January, 1963.

Respectfully submitted,

Carl A. Cowan 
2212 Vine Avenue, S.E.

Knoxville 15, Tennessee
Z. Alexander L ooby 
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville, Tennessee

J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs

Specifications of Objections to Amended Plan



15a

A m endm ent to Specifications o f  O bjections to  
A m ended P lan  F iled  by K n oxville  Board o f  

E ducation

I n the

UNITED STATES DISTRICT COURT 
F or the E astern District oe T ennessee 

Northern Division

[ same t it l e ]

Come the plaintiffs, Josephine Goss, et al., in this cause 
and amend their Specifications of Objections, heretofore 
filed on September 18, 1962 and before a responsive plead­
ing was filed, to the Amended Plan of the defendant, The 
Board of Education of the City of Knoxville, Tennessee 
by striking out the first word, to-wit, “residence” in line 
eight (8) of section nine (9) on page three (3) thereof 
and inserting in lieu thereof the word “enrollment”.

Carl A. Cowan 
2212 Vine Avenue, S.E.

Knoxville 15, Tennessee
An Attorney for Plaintiffs



16a

R eply o f  D efendant K n oxv ille  Board o f  Education  
to  Specifications o f  O bjections to A m ended P lan

I n the

UNITED STATES DISTRICT COURT 
F or the E astern D istrict of T ennessee 

Northern Division

[ same t it l e ]

In reply to specifications of objections to amended plan 
filed by the Knoxville Board of Education, which specifica­
tions were filed herein on September 18, 1962, the defen­
dants say as follows:

The amended plan, to which the objections are addressed, 
presents a good faith determination by the defendant Board 
of Education in expediting the desegregation process in 
the public schools of Knoxville, Tennessee, in full compli­
ance with the decision in this case of the United States 
Court of Appeals for the Sixth Circuit.

The objections merely seek a reconsideration of factual 
matters which were fully and deliberately explored and 
considered in the various hearings that have already taken 
place in this case and in this Court. Some of the objections 
specified are simply copied from objections previously filed 
to the plan originally submitted. There is no reason why 
this case should be retried upon facts found to be true by 
this Court and accepted by the Court of Appeals.

The defendant Board of Education in good faith has de­
termined the full extent to which the mandate of the Court



17a

Reply of Defendant Knoxville Board of Education 
to Specifications of Objections to Amended Plan

of Appeals, directing speedier desegregation, can be car­
ried out under the circumstances of this community. It 
appears inequitable that the defendant should be subjected 
to the harassment of repeated petitions to this Court.

S. F rank F owler 
Attorney for Defendant



18a

R eport on  B eh a lf o f  Board o f  E ducation  o f  the  
City o f  K n oxville

I n the
UNITED STATES DISTRICT COURT 
F ob the E astern D istrict of T ennessee 

Northern Division

[ sam e  t it l e ]

On behalf of the defendant Board of Education of the 
City of Knoxville it is reported that at a meeting duly held 
on March 11, 1963, it was decided to desegregate grades 
five and six, in accordance with the plan filed with the court.

Certified copy of the resolution is attached hereto.

S. F rank F owler 
Attorney for Board of Education 

of the City of Knoxville

Dated: March 15,1963



19a

EXCEEPT FEOM MINUTES OF THE EXECUTIVE 
SESSION OF THE BOARD OF EDUCATION, 
KNOXVILLE, TENNESSEE ANNEXED TO RE­
POET

P olicy Relative the Desegregation of the 
K noxville City S chools

On motion made by Mr. Ray and seconded by Mr. Lin- 
ville, it was moved that the Board concur in the Superin­
tendent’s recommendation and establish as the Board’s 
policy that effective with the school year 1963-64 desegre­
gation would apply to the fifth and sixth grades. Motion 
was carried by unanimous vote of the Board.

It is certified that the foregoing motion was duly adopted 
at an executive meeting of the Knoxville Board of Educa­
tion duly held on March 11,1963.

/ s /  Alex A. S hafer

Alex A. Shafer 
Secretary

Knoxville Board of Education



20a

Specifications o f  O bjections to Second A m ended  
Plan F iled  by K n oxv ille  Board o f  E ducation

I n the
UNITED STATES DISTRICT COURT 
F ob the E astern D istrict of T ennessee 

Northern Division

[same title]

The Plaintiffs, Josephine Goss, et al., respectfully ob­
ject to the Second Amended Plan filed in the above entitled 
cause on or about the 15th day of March 1963 by the de­
fendant, The Board of Education of the City of Knoxville, 
Tennessee; and specify as ground of objection the same 
Specifications of Objections and applicable prayers there­
to filed by the said Plaintiffs on September 18, 1962 to the 
Amended Plan filed by said defendant on the 14th day of 
August, 1962, and, therefore, pray that the same be incor­
porated herein by reference, except that Prayer No. 3 be 
modified to the extent that said supplemental and realistic 
plan to be effective not later than the beginning of the 
Summer Term of the City Schools of Knoxville in June 
1963. Plaintiffs further pray that the Court hear this mat­
ter together and along with the Amended Plan of the de-



21a

Specifications of Objections to Second Amended Plan

fendant, and plaintiff’s objections thereto, which have been 
docketed for a hearing on the 1st day of April, 1963.

Respectfully submitted,

Carl A. Cowan 
2212 Vine Avenue, S.E. 

Knoxville, Tennessee
Z. A lexander L ooby 
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville, Tennessee

J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs



22a

E xcerpts From  Transcript 
A pril 1 , 1 9 6 3

* # # * #
- 3 6 -

Dr. J ohn H. Burkhart, called as a witness by and on 
behalf of the defendant, a fte r having been first duly sworn, 
was examined and testified as follow s:

Direct Examination by Mr. Fowler:

Q. Tour name is Dr. John Burkhart? A. Yes, sir.
Q. You are chairman of the Board of Education, City 

of Knoxville? A. Yes, sir.
Q. Were you chairman at the time of the adoption of the 

grade-a-year desegregation plan? A. Yes, sir.
—37—

Q. Have you been chairman continuously since? A. Yes, 
sir.

Q. Are you an active practicing physician? A. Yes, 
sir.

Q. To which set of duties do you devote most of your 
time, your physician duties or School Board duties? A. 
To my physician duties.

# # # #

By Mr. Fowler:
Q. Dr. Burkhart, you are generally familiar with the 

progress of the desegregation process in the Knoxville city 
schools? A. Yes, sir.

—38—
Q. Since the beginning. We have two or three issues for 

examination here today as a result of the colloquies that 
have gone along so far in this court room and one of them 
concerns the speed of the desegregation process. Origi­
nally it was to proceed at one grade a year.



23a

Now after the case had been to the Court of Appeals and 
the speed-up so directed by that Court, what action did the 
Board of Education of Knoxville take? A. In August, I 
believe, of last year the Board determined that because of 
this command, and also because it was its feeling that—

Mr. Williams: We object to the Board’s feeling.
The Court: Overruled. Go ahead.
The Witness: I am sorry, I didn’t hear that ob­

jection.
The Court: Counsel objected and the Court passed 

on the objection. He objected to your feeling, but I 
will let that go into the record.

A. (Continuing) The Board acts in accord to how the 
Board feels in any matter, its opinion, as regards policy 
in the school system.

The Court: In that connection, Dr. Burkhart, so 
as the record will be clear, when you use the word 
“feel” if you mean your personal feelings, the ob-

—39—
jection would be technically good and the Court 
would have to sustain it, but when you use the word 
“feeling”, if that implies the judgment or the opinion 
of the Board after deliberation, and so forth, then 
it is competent.

A. (Continuing) Well, sir, judgment would have been a 
better word. Judgment is the word I should have used.

It is the Board’s judgment, collective judgment, that the 
desegregation process had proceeded very smoothly with­
out any difficulty and that it could without harming the 
administrative function and the educational processes of

Dr. John H. Burkhart—for Defendant—Direct



24a

tlie children involved, speed its plan up by desegregating 
two years in the fall of 1962, grades three and four.

I t has since acted again on the same basis to desegregate 
two more grades beginning in the fall of this year, com­
pleting the desegregation of the elementary grades.

And this, I might point out, is something that will be 
three grades ahead of what the requirement was in the 
grade-a-year plan.

By Mr. Fowler:

Q. And you will actually finish the whole twelve grades 
earlier than the City of Nashville on its grade-a-year which

—40—
started about three years earlier? A. Yes, sir.

Mr. Williams: That is objected to, if your Honor 
please.

The Court: Overruled. Go ahead.

By Mr. Fowler:
Q. Why did the Board determine to go faster, the two 

grades, Dr. Burkhart? A. Well, it is our judgment that 
this is still a transitional period of adjustment, that we 
must act in view of experience, as our experience seems 
to indicate, and that the two years is as fast as we felt 
we could go with propriety.

Now there are other opportunities all along for the 
Board to speed up or drop back, I suppose, to the one 
grade-a-year proposition, but it was our feeling that we got 
to the elementary level.

There is a rather arbitrary division, but there is a divi­
sion in your school levels. Elementary, junior high and 
senior high—and that we could start there possibly and

Dr. John H. Burkhart—for Defendant—Direct



25a

then make a decision in the following year about the pro­
cedure from there on.

Q. With respect to the Fulton plan, it has been sug­
gested that there have been some improprieties in the ad­
ministration of the plan of transfer of Negro applicant pu-

—41—
pils to Fulton High School, perhaps you will know the 
workings of a transfer plan. Have you any decision about 
that? A. Well, yes, sir. I regret that the notice to appear 
here this morning to testify has been of such recent date 
I have not had an opportunity to refresh my memory on 
many of the actions and policies of the Board, but it is my 
opinion now, as of now, that the transfer provisions as re­
spects Fulton are the same transfer provisions for all ap­
plicants at Fulton for the vocational courses. Because 
Fulton is our vocational high school, and also for the whole 
city, and also our academic high school for a certain district 
or area, so the provision, the transfer provisions and how 
the student in other district applies for transfer to that 
school, is the same.

—45—
* # # # #

Dr. John H. Burkhart—for Defendant—Direct

By Mr. Fowler:

Q. Do you know anything about the handicapped and 
crippled children and the gifted children matters to which

—46—
Mr. Cowan was referring this morning? A. We have a 
program, or special program, for gifted children.

As respects the handicapped, the only program that I 
can think of just now that we have which is not integrated 
up to the sixth grade as, or will be as through the sixth 
grade this fall, is the Van Gilder Occupational Training



26a

Center which is an experimental program started some two 
or three years ago which has been over-crowded and very 
much cramped for space with a backlog of applicants since 
the first day it opened and which is for children above the 
seventh grade.

As regards the others, they are integrated.

The Court: Read that last answer. This is the 
gifted children ?

The Witness: This is the handicapped.
The Court: Above the seventh grade, what is it?
The Witness: We have the Van Gilder Occupa­

tional Training Center. It is a shelter work-shop 
experimental program for junior high school stu­
dents only, to train them to work with machines and 
materials.

Originally it was planned to be held at the Van 
Gilder School which is why it is named Yan Gilder,

—47—
but the school was not adequate and it was moved 
and is now part of the building at Moses School.

Since we have not desegregated past the sixth 
grade, this is still a segregated part of our system.

The Court: Is it integrated from the sixth grade 
down?

The Witness: No, it doesn’t include students from 
the sixth grade down. The handicapped children 
from the sixth grade down, that program is inte­
grated.

The Court: Then that goes along with the plan?
The Witness: Yes, sir.
The Court: It isn’t any different from the other 

plan?

Dr. John H. Burkhart—for Defendant—Direct



The Witness: That is correct.
The Court: All right.
Mr. Fowler: That is all.
The Court: What about the gifted children?
The Witness: We have no program for the gifted 

children, no special classes, no special program for 
gifted children on any age level.

Mr. Fowler: You may ask him.
—4 8 -

Cross Examination by Mr. Williams:
Q. Dr. Burkhart, you are familiar with this, is there a 

difference between a multiple handicapped child and the 
educatable mentally retarded? A. I am sorry, Mr. Wil­
liams.

Q. Is there a difference between a multiple handicapped 
child and the educatable mentally retarded child? A. Mul­
tiple handicapped?

Q. Yes. I mean, for example, a child with cerebral palsy 
or something like that. A. We distinguish between the 
severely mentally retarded and educatable mentally re­
tarded.

Q. You have special classes for these children, don’t you? 
A. Yes, sir.

Q. And you have been keeping the handicapped children 
segregated above the grade level of the desegregation also, 
haven’t you ?

Mr. Fowler: May I have that question read ?

Q. You have been keeping these handicapped children 
segregated above the level of your plan? A. I believe so.

Q. And this is likewise true of the educatable mentally

Dr. John H. Burkhart—for Defendant—Cross



28a

Dr. John H. Burkhart—for Defendant—Cross

—49—
retarded, you have segregated classes for them? A. Above 
the levels ?

Q. Yes. A. Yes.
Q. Did you know that according to the testimony of your 

superintendent before the last hearing you don’t have but 
about four hundred total Negro and white edueatable men­
tally retarded in the entire school system, or didn’t have 
at that time; did you know that? A. No. I am not aware 
of the statistics on the matter without reviewing, and I 
haven’t had an opportunity to review.

Q. What statistics have you reviewed since 1962? A. 
Well, I couldn’t tell you. I review many statistics but I 
haven’t reviewed any since I was ordered to appear in this 
court to testify two days ago.

Q. You haven’t reviewed any since you last testified 
here either, have you, regarding this problem? A. Oh, yes, 
I have reviewed—

Q. What statistics have you reviewed? I am not asking 
you to give figures at the moment. I believe Mr. Johnston 
will have that. I am asking you to state what documents 
you have reviewed pertaining to the desegregation prob­
lem since you were last here in court? A. Well, I have

—50—
been furnished periodically with attendance figures of all 
the schools, and the figures I don’t have that you quoted 
as regards how many EMRs, SMRs children we have, 
and we are furnished those regularly, and an annual report 
of our school system annually.

Q. Did you review any figures after the Sixth Circuit 
Court of Appeals said that you all ought to accelerate? 
A. Oh, yes.

Q. You did? All right, what figures did you review?



29a

A. Our attendance figures as respecting the grade dis­
tribution in all of our schools, we review periodically.

Q. How many Negro students did you find would be at­
tending—out of the total how many Negro students did you 
find would be eligible to attend white schools if you de­
segregated all grades ? A. I don’t know.

Q. Did you have that before you? A. I had that.
Q. You had that before you? A. Yes, sir, over a year 

ago.
Q. And you had it before you how long—you had before 

you what your desegregation experience was the first year
—51—

of desegregation, didn't you ? A. Yes, sir.
Q. First and second year? A. No, sir.
Q. And that experience showed that you all had trans­

ferred all your white students out of your Negro schools, 
did it not? A. I  didn’t understand that question.

Q. That experience had shown that all white students 
who were allegedly assigned to Negro schools were per­
mitted to, just go on back to the white schools; that was 
shown by that experience, wasn’t it? A. I believe so. I 
don’t recall any occasion of a white student at a Negro 
school.

Q. That experience likewise showed that approximately, 
only approximately one-third of the Negroes who were eli­
gible to attend the white schools were attending them, did 
it not? A. I  don’t recall the figures.

Q. Well, do you have in mind any vague idea, Dr. Burk­
hart, of how many Negro children and white children would 
be involved in desegregated situations if you desegregated 
the whole system? A. Not at the present time without 
review.

Dr. John H. Burkhart—for Defendant—Cross



30a

Q. Well, you knew as late as two days that you were
—5 2 -

going to be here today, didn’t you ? A. Yes, sir.
Q. You were subpoenaed here to testify! A. Yes, sir, 

two days ago.
Q. Well, it wouldn’t take you long, you have got your 

superintendent here who is very able, I must say, who re­
viewed these statistics, he has got them in his file, hasn’t 
he! A. Yes, sir.

Q. And it would have taken you just fifteen minutes to 
glance over that instrument and refresh your recollection 
on it, wouldn’t it! A. I don’t know how long it would have 
taken.

Q. Well, as a matter of fact, Dr. Burkhart, you all just 
decided that one year was enough last fall, didn’t you, your 
decision that you just desegregate one year! A. Two 
years.

Q. Two years! A. Yes, sir.
Q. Well, when you first filed your plan it was to desegre­

gate one additional year, wasn’t it f A. Right.
Q. And then you decided later to desegregate two addi­

tional years! A. And an additional year above the one
—52—

that we were required by the plan, and then this year 
another additional year.

Q. So you just desegregated one additional year in addi­
tion to the one that you were required under your old plan! 
A. One additional; yes, sir.

Q. And you did not decide to do that until after we had 
in fact, counsel had brought in and filed a motion for further 
relief, you knew about that, didn’t you! A. Yes, sir.

Q. This decision came down in April. Did your counsel 
come out and tell you that the Court of Appeals had stated

Dr. John H. Burkhart—for Defendant—Cross



31a

in the opinion of the Court that it expected the Board to 
move before September and counsel stated to the Court, 
in substance, that he expected the Board would move to 
accelerate? A. Yes, sir. Our counsel kept us informed.

Q. And you likewise knew that the plaintiff should have 
an opportunity to object to your plan if you should move 
too slowly, didn’t you? A. Yes, sir.

Q. Why then did the Board wait until August just before 
school opened to file this accelerated plan so that the plain­
tiff did not have time to object and get a hearing? A.

—54—
I can’t tell you why the Board waited until August. It was 
August before the Board acted upon it.

Q. Just the way the Board has acted throughout this 
case, just waiting on something, isn’t that true? A. I don’t 
care to answer that question. You are asking—

Q. The Board did not have a real reason for doing that, 
did it, Dr. Burkhart? A. Well, the Board has, if I may 
answer in this way, the Board has many other things that 
it must consider, and it acts upon—there are other matters 
before the Board of Education, many other matters.

Q. But the Board has considered those other matters 
for many, many years now and do you think it is about time 
the Board got around to giving a little attention to this mat­
ter? A. I think the Board has given it considerable at­
tention.

Q. Did you have any problem of transportation in re­
gard to—did you discuss any problem of transportation in 
determining to desegregate one grade extra last year? A. 
Do you mean did we think that this would create or solve 
problems ?

—55—
Q. No, I mean did you have any objective scientific ma­

Dr. John H. Burkhart—for Defendant—Cross



32a

terial before you to justify your determination to deny the 
constitutional rights of several thousand children? A. We 
acted always in my judgment on the basis of the facts 
that we had at our disposal and the judgment of our Board 
as to what constituted the maintenance of good educational 
procedures through our system.

Q. Now what I am asking you is name some of the facts, 
just a few of the facts. A. Name—

Q. Any of the facts on which you based your alleged judg­
ment of yours. A. All right. We felt that, it was our 
judgment, that to proceed rapidly, more rapidly than we 
were proceeding would interrupt our educational processes 
by causing possibly some upheaval of the administrative 
procedure in the schools, of causing some community ac­
tivity which would be not in the best interest of our chil­
dren, and that since this was a matter that needed to be 
worked out with some degree of caution that we were pro­
ceeding fast enough.

Q. Now what upheaval of administrative procedure are 
you talking about? What evidence did you have before 
you of any administrative upheaval? A. Not any evi-

—56—
dence that it had happened but evidence that it might 
happen.

Q. What evidence did you have that it might happen? A. 
Because when you change the zoning you create shifts of 
students population back and forth in a rapid way which 
would cause a great deal of administrative difficulty.

Q. Well, you rezoned the entire school system in one or 
two months in 1960, didn’t you? A. Not our entire system, 
I don’t believe. Some certain areas.

Q. You mean that your superintendent was mistaken 
when at the hearing he brought in and exhibited to the

Dr. John H. Burkhart—for Defendant—Cross



33a

Court a zoning map showing the rezoning of the entire 
school system? A. We did not change, I don’t believe, 
and I could be wrong on this and my memory is not always 
as good, Mr. Williams, as yours, but I could be wrong, I 
don’t believe we changed the entire zoning of our system.

Perhaps it is true and if our superintendent said we did, 
we did, because he is much more acquainted with it than 
we are.

Q. I am sure you all did rezone and put them—you had 
a dual set of zoning system before. You had a Negro zone

—57—
and a white zone. A. Right.

Q. And isn’t it true that in 1960 pursuant to an order 
of the Court that Mr. Marable, your child supervisor, made 
a survey and rezoned the whole system from a dual zone 
to a single zone? A. As it applied to the grades we were 
going to desegregate.

Q. Of course, this was as it applied—you mean to tell 
me he has been getting up a zoning map each year? A. 
No.

Q. So this applied to the entire school system, didn’t it, 
Dr. Burkhart? A. Yes, I think it did apply. I think it did 
apply to the entire school to be effective as the desegrega­
tion process increased.

Q. But the zone was established and done in just a 
month or so. What you are talking about is maybe as each 
additional grade is desegregated you would have a few 
more teachers involved in the situation; that is what you 
are talking about? A. And considerably more students.

Q. And a few more students involved. As a matter 
of fact, under your transfer plan you haven’t had very

—58—
many students involved, have you? A. No, sir.

Dr. John 11. Burkhart—for Defendant—Cross



34a

Q. About sixty eligible out of some twenty thousand stu­
dents the first year, didn’t you, in the first grade? A. I 
don’t remember the exact number.

Q. But out of some twenty-two thousand students there 
was about that amount, you had about sixty something 
eligible and about twenty something of the Negro children 
were in four or five or six white schools and that was the 
extent, just about the total extent of desegregation here 
today; that is true, isn’t it, is it not? A. As I say, I 
am not acquainted enough to remember the numbers.

Q. Dr. Burkhart, are you here telling the Court that in 
exercising some policy and administrative judgment as 
a Board member you couldn’t even recall enough about 
it to tell the Court about how many Negro children were 
involved in desegregation last year? A. What I am trying 
to say, Mr. Williams, and I don’t remember these figures 
and I ’m sorry that I don’t, what I am trying to say is 
every time the Board acts on a matter we are apprised 
of statistics. It considers the statistics and it renders its 
collective judgment on those and other matters which it 
brings into consideration, but then the members of the

- 5 9 -
Board of Education, as public people, there are other ac­
tivities and you cannot keep these figures in your head 
and you are not aware of them as are your administrative 
personnel or the administrative staff.

They are on file in my office and when the need arises 
I refer to them, but when I am subpoenaed to come into 
this court with two days notice and ask to testify as to 
certain statistics that applied in 1960, I have no way of 
pulling it out of my head.

Q. I am now asking you about statistics that you are 
telling the Court that you based your judgment on last 
fall, just this past fall. A. Well, that is—

Dr. John H. Burkhart—for Defendant—Cross



35a

Q. 1962, just a few months ago, and also just recently, 
and you are telling the Court—when was this amendment, 
in March—you are telling the Court in Mareh you exer­
cised a policy judgment that two more years was fast 
enough. You can remember last month, can’t you? A. Yes, 
I can remember some things last month but there are figures 
I can’t remember as of yesterday and without any at­
tempt to be disrespectful to either you or this Court, I would 
like to point out that you have at your disposal figures 
which you refer to constantly and I have nothing to refer to.

—60—
Q. I won’t get into that. I will simply ask you this, 

Dr. Burkhart, maybe we can cut this short.
Then in short your testimony is that you exercised a 

judgment last fall and last month regarding the addition 
of these grades, and based on some figures that you don’t 
have and you don’t have any idea what they consisted of? 
A. Not a good enough idea to testify under oath.

Q. And, as a matter of fact, your basic two reasons— 
when I say “you”, I am referring to the Board—that the 
Board is here asking the Court to approve this six year 
desegregation is because you felt there would be an up­
heaval of the administrative procedure consisting of hav­
ing to involve a few more teachers in the administrative 
process, teachers and children, and that there might be some 
segregationist community activity which might not be in 
the interest of the children—those are the two reasons for 
opposing this plan? A. That is right, and I included in 
that, I believe the statement that any of these things can 
interfere with the orderly educational process of our 
children and we are trying to protect them from that.

Q. But you haven’t had that to happen in Knoxville?
—61—

Dr. John H. Burkhart—for Defendant—Cross

A. Not yet; no, sir.



36a

Q. And if it were to happen yon still have a police force 
in Knoxville, do you not, sir? A. Yes, sir.

Q. I believe you have testified previously that you felt 
that the police force of Knoxville could handle any prob­
lem that might arise with respect to violation of law; is 
that correct? A. Ultimately—

Q. I have been reading the paper about the activities 
of your police force. A. Ultimately they could handle it; 
yes, sir.

Q. Are you sure there are some facilities for handicapped 
children where Negroes are concerned? A. Well, I am sure 
there are facilities for handicapped children.

Q. There are not at all, are there? A. Yes. We have 
EMR, classes and SMR for Negroes.

Q. That is a different form of handicapped child? A. 
No, they are handicapped because we have facilities for 
the blind, for the hard of hearing, for the—

Q. Are they considered as educatable mentally retarded
- 6 2 -

children? A. They are considered as handicapped.
Q. So that educatable mentally retarded is a little dif­

ferent from handicapped, isn’t it? A. No, sir. It is all 
public education.

Q. Isn’t this what the Van Gilder School is about, for 
the education of handicapjjed children as opposed to edu­
catable mentally retarded children? A. No. It is for a 
type of handicapped but, of course, mentally retardation is 
a handicap.

Q. Well, we understand that but the Van Gilder School 
is provided for the education of physically handicapped 
children, is it not? A. No, sir.

Q. It is mentally handicapped? A. Mentally handi­
capped.

Dr. John H. Burkhart—for Defendant—Cross



37a

Q. What is your distinction between what they get at 
the Van Gilder Occupational School and the other classes, 
would you tell me, sir, classes for educatable mentally re­
tarded? A. Well, I will try. The educatable mentally re­
tarded are children in the lower grades who are slow in 
their learning process and who need to be given extra time 
and special teaching and special guidance in helding them 
learn the courses.

- 6 3 -
Now those at Van Gilder are in the junior high school 

grades who have I.Q.’s below an established level, and I 
have forgotten again. This is a figure that I can’t remem­
ber but I believe it is 80, below that level—who can be 
given some training in some of the vocational activities, very 
low grade type of thing. Making little plastic things and a 
little weaving, and so forth.

Q. Well, Dr. Burkhart, isn’t it true Negro children in 
your present state of affairs need that type training more 
than white children if you are going to look at them as a 
class? A. You mean be more of them with an I.Q. below 
80 than the white children?

Q. That is what your superintendent testified at the last 
trial, isn’t that correct? A. It is correct.

Q. If you provide this training for a racial group which, 
according to your figures has less need for it, and you are 
citing the deficiency of this second group which has more 
need for it as a reason for not allowing them to receive 
the training, sir, isn’t that true? A. As I stated earlier 
this program has been, is an experimental program to see 
if it would be advisable to continue with the program and 
to expand it from time to time.

—64—
I just pointed out it has been crowded and there are 

applicants of both races, I am sure, although I cannot docu­

Dr. John H. Burkhart—for Defendant—Cross



38a

ment an application from any individual person, which can­
not be filled because of the crowded conditions at Van Gilder.

Q. How long has this school been in existence? A. I 
believe three years but that could be plus or minus one 
or two years.

Q. Your present plan is to discontinue it or not? A. No, 
this plan, this program is subject to the provision of the 
funds for it every time it is on the program. This is more 
or less if funds are available.

Q. But it is going at the present? A. It is going at 
present.

Q. And then only white children are in it and it is not 
proposed to let any Negro children in until the grades are 
reached in accordance with whatever plan is approved here 
today? A. That is correct.

By the Court:
Q. Now, I am not quite clear, only white children are— 

I understood you to say first that you did not have any 
program for gifted children. A. Yes, sir.

—65—
Q. Now I understood you to say second that you did 

have an experimental program for handicapped children, 
mentally and physically retarded children, and that that 
program was handled just exactly like the Van Gilder 
handled it for the other school children. That is to say, 
it was integrated up to the sixth grade, or would be in­
tegrated up to the sixth grade and segregated from the 
sixth grade on. Am I correct in that? A. Yes, sir.

Q. All right, then, what was that statement about the 
other, that last? A. It is a program that is called the Van 
Gilder Occupational Training Center just for the seventh, 
eighth and ninth grade children. This is an experimental

Dr. John H. Burkhart—for Defendant—Cross



39a

program which was originally financed for us mostly by the 
federal government and has been kept on through other 
funds, and this is the seventh, eighth and ninth grades and 
it is segregated.

Q. That is for what, handicapped children? A. For 
handicapped in the sense they are of low intelligence quo­
tient.

The Court: All right.

By Mr. Williams:

Q. Dr. Burkhart, when you say segregated, you don’t 
mean to imply that you got a comparable Negro school.

—66—
This is the only school of this kind, isn’t it? A. Of course, 
that is right.

Q. You are providing nothing like this for the Negro 
children with low I.Q. which the superintendent was talking 
about on the trial of the case? A. That is correct.

The Court: That has been in operation three 
years ?

The Witness: I believe three years.
The Court: All right.
The Witness: About.

By Mr. Williams:

Q. Now, Dr. Burkhart, you gave as your reason on 
direct examination, you were talking about experience, that 
experience indicated, that you based your approval of only 
two additional grades this year on the fact you were 
still in a transitional period and we are deciding how much 
transition is required, and that something about experience,

Dr. John H. Burkhart—for Defendant—Cross



40a

as experience indicates that you felt that two years was as 
fast as you could go with propriety.

What experience are you talking about; what do you mean 
by that? A. The experience that we got along well with 
one year and again one year, and we felt like that doubling 
the speed about as fast as anyone would go on this at this

- 6 7 -
particular time.

In other words, if you double your speed you are increas­
ing it considerably, and our experience was that that would 
be fast enough to go.

Q. You did not double your speed last September, did 
you? A. Well, we added one—if you are saying that we 
only went through the fourth grade instead of three, that is 
really not doubling but we doubled the speed at which we 
ordinarily do it.

Q. You mean you are doubling your rate of speed? A. 
Yes.

Q. You did not double the rate of speed this year? A. 
No.

Q. You left things as they were. Now let me ask you, you 
presently have nothing in this plan to indicate how you in­
tend to proceed after this, do you? A. No, sir.

Q. So that you are doing the same thing that the Nash­
ville School Board did in 1957 which was rejected by the 
Court, and you asked this Court to approve six years de­
segregation and then let you decide later on how fast to 
desegregate the rest of the school system, that is correct,

— 68—

isn’t it? A. I suppose. We haven’t made any provision 
about past this time.

Q. So that you could conceivably under this plan, when 
you got to the sixth grade you could stop and you could

Dr. John H. Burkhart—for Defendant—Cross



41a

conceivably decide to wait four years before yon got to the 
next grade, couldn’t you? A. I don’t believe we could 
wait four years.

Q. But you might decide to wait two years before you 
went on to the—even to the junior high school, mightn’t you? 
A. We could. Under this plan we could.

Q. And under this plan you could, and as a matter of fact, 
carrying it on out, you could conceivably wait five years, 
couldn’t you? A. No.

Q. There is nothing in the plan that says you can’t. A. 
Under the present system we have to go a grade-a-year.

Q. Under the present plan you have to go a grade-a-year? 
A. Doesn’t it?

Q. No, the only, the amended plan which you have sub­
mitted here, your amended plan says we are going to the

—6 9 -
sixth grade as of September. A. The original plan was a 
grade-a-year plan.

Q. And you consider the original plan as still in effect 
except for this amendment as to the rate of speed; is that 
correct? A. Yes. Whether the amendment adds to the 
original plan, I don’t know.

Q. So what you are now proposing is to go to the sixth 
grade as of September 1963 and then a grade-a-year there­
after? A. No.

Q. You still want to go a grade-a-year—what are you 
proposing to the Court? A. What we are proposing is 
that we can act—we are bound, we feel, to act under the 
provisions of the grade-a-year plan. That is the absolute 
minimum. We cannot go back past that but by amending 
this we can pick up these two grades this fall.

We can at any time we feel in our judgment it is proper 
to do so desegregate future grades with any rapidity that it

Dr. John H. Burkhart—for Defendant—Cross



42a

is our judgment is proper providing we do not become 
slower than the plan that we must operate under, which 
is the grade-a-year.

Q. Dr. Burkhart, did you construe this plan as having 
that same feature in it when you first proposed to the

—70—
Court that you could speed up at any time? A. The one 
grade-a-year ?

Q. Yes. A. Yes, sir.
Q. As a matter of fact, that was one of the advantages 

the superintendent gave; that is true, isn’t it? A. That is 
right.

Q. Well, why is it, and let me ask you, the plan went into 
effect in the year, September 1960, you desegregated the 
first grade; that is correct, is it not? A. Right.

Q. You desegregated only the second grade in September, 
1961; correct? A. Right.

Q. You had no plans whatever for desegregating any 
other than the third grade in 1962 before the Sixth Cir­
cuit mandate came down, did you? A. We had taken no 
action but we had discussed it many times.

Q. Well, why hadn’t you discussed it before the first 
year, to determine that between the first and second years, 
you said you wanted some experience, didn’t you get some 
experience the first year? A. Very little.

Q. Didn’t have enough judgment? A. That’s right.
—71—

Q. That enabled you to keep the white schools white 
and the Negro schools Negro and it wasn’t very harmful 
and provided in your sound judgment that good experience, 
didn’t it? A. No, sir.

Q. Then you didn’t want or need experience, so then I go 
back and ask you why you did not decide to speed up de­

Dr. John H. Burkhart—for Defendant—Cross



43a

segregation a little more and get some experience so yon 
could afford these children their constitutional rights! A. 
Well, I thought I had answered it but I will try again.

We felt after the end of the school year that we should 
proceed along the lines that we had originally stated there, 
a grade-a-year, proceed with one more, give us more ex­
perience, more opportunity to experience what will happen.

There were schools that became involved in this second 
year, I believe there were, and I could be wrong on that, this 
again is a matter of memory—but we did involve more 
schools and more problems and more parents in the second 
year than we did the first, and that, we felt, gave us ex­
perience to justify our action to speed up the plan in the 
following year, and this year it seemed that we had had 
enough experience to do the same thing and it seemed

— 72—

to be a logical place to separate this at the end of the 
sixth grade for the purpose of getting it into a package 
and observing that before we proceed into the higher grades 
where if any difficulty is going to occur we can—

Q. Getting back a bit, you say you hadn’t even considered 
speeding up between the first and second years. You said 
you had not taken any action before the Supreme Court 
mandate came down. Now you were implying maybe you 
had considered it, is that true! A. Yes.

Q. Well, why didn’t you—did you tell your lawyer to 
go up to Cincinnati and fight like everything to get the 
twelve year, grade-a-year approved, why didn’t you let him 
tell the Court you were considering, right now considering 
desegregating two more grades and twm more the following 
year! A. Well, I don’t recall that the Board gave our at­
torney any instructions as to how to proceed in that par­
ticular at the moment. He proceeds as our attorney. We 
act with his advice.

Dr. John H. Burkhart—for Defendant—Cross



44a

Q. Let me ask you this, are the plaintiffs here engaged 
in a lawsuit against your attorney or against you, against 
the School Board? A. It must be against me, or our 
Board, I would say.

—73—
Q. The School Board knew that its attorney was down 

here trying to get the Court to approve a twelve year grade- 
a-year plan, didn’t it? A. Yes, but before I answer that 
may I ask your Honor if I can request the Marshal to call 
my office and ask that my patients be dismissed because ob­
viously I am not going to get away soon.

Q. I am not going to be much longer with Dr. Burkhart. 
I promise. I wouldn’t want to keep you from your patients. 
I won’t be more than two minutes longer. That is two law­
yer’s minutes, however. A. Would you restate your ques­
tion?

Q. The Board knew, did it not, Dr. Burkhart, that their 
attorney was trying or resisting the appeal of the plaintiffs 
from the twelve year plan? A. Yes, our Board has been— 
Mr. Fowler has kept us acquainted, of course, with the argu­
ments and the positions that he has been taking before 
all the Courts.

Q. And the Board did not at any time give him instruc­
tions to say to the Court we are willing to speed up? A. I, 
don’t recall that we did in particular.

Q. And, as a matter of fact, you don’t even know any­
thing about this alleged experience that you are talking 
about that you had the first year, the second year, except

—74—
that it was not enough really to give you a good basis for 
solving any administrative problems in desegregation? A. 
I know considerably more about the experience than that.

Q. Now with regard to your junior high schools and

Dr. John II. Burkhart—for Defendant—Cross



45a

the senior high schools. The longer you delay some kind 
of desegregation then the longer you delay in getting the 
experience to help you to solve the problems there; that is 
true, isn’t it? A. The longer you delay that the longer you 
delay your experience, but the good you have experienced in 
the lower grades and the more you give the people an op­
portunity to become accustomed to this, you should have 
less difficulty as you get into the higher grades, is our 
opinion.

Q. As a matter of fact, that is predicated on your proposi­
tion, your original proposition, you started all children 
together and let them start out on a desegregated basis and 
leave the other children segregated the way they were; 
is that right? A. Yes, but we have gotten away from that, 
of course.

Q. You have gotten away from that and you haven’t 
had any problems, have you? A. No, sir.

—175—
Q. Under your transfer plan which keeps practically 

complete segregation anyway, so why should there be any 
more problems in the junior high school or high school? 
A. Because we are dealing with older children.

Q. Well, what experience do you have that substantiates 
that proposition in desegregating older Negro and white 
children? A. No experience in Knoxville.

Q. You haven’t considered any, the Delaware plan which 
says that you should desegregate immediately, have you; 
you are not considering the Delaware plan? A. No, sir.

Q. The reason for that is, you say Knoxville is a pecu­
liar place and the Board has got to have experience, that 
is what you have told the Court, isn’t it? A. We think ex­
perience is very helpful and also our observation of what 
has happened in other communities, in our neighborhood, 
and that has influenced our decision.

Dr. John H. Burkhart—for Defendant—Cross



46a

Q. You are saying to the Court we want experience, we 
don’t care that they desegregated peacefully in Louisville, 
St. Louis, Washington, and everywhere else, we want to 
have our own experience here, and yet you want to ask 
the Court at the same time to delay these children and keep 
you from getting the very experience you say you want?

—76—
A. We think there is a considerable difference between 
what happened in Washington and what happens in Knox­
ville.

Q. You know, I am sorry I mentioned that. I knew you 
would enjoy that.

What I am asking you about is about this experience 
thing. If you would answer that question, please, sir. A. 
About do I think the experience here in Knoxville is what 
we are interested in?

Q. Yes. Isn’t that the basic reason that you say to the 
Court we need time because Knoxville is a peculiar situa­
tion, the Louisville experience isn’t good enough for Knox­
ville? A. Yes.

Q. All right. So you have asked for experience. Doesn’t 
it follow that you are not trying to get the experience that 
you are telling the Court one needs, and wouldn’t you get 
it better if you desegregated, if you desegregated the 
junior high schools and the high schools along with the 
grade schools or at least some portion of them? A. No, 
we don’t think so.

Q. You would get it sooner, wouldn’t you? A. You could
—77—-

get experience but maybe not the kind of experience we 
are interested in.

Q. Well, how do you know what kind of experience you 
are going to get until you have some desegregation? A. 
Hr. Williams, if we had desegregated the twelve grades

Dr. John H. Burkhart—for Defendant—Cross



47a

simultaneously, we would have experience, a tremendous 
amount of it.

Q. And soon. One of your plans, alternative plans sug­
gested by you or your staff suggested that, didn’t it! A. 
Yes, sir. But that experience would not have given us any 
help in trying to decide how to go ahead because the ex­
perience would not have been fruitful.

Q. What experience have been fruitful with respect to 
the desegregation you have had! A. Each year we in­
crease the grades that are desegregated. We change the 
age in which there is a relationship in the school room be­
tween colored and white. We are getting closer to the age 
where we think the situation might become difficult, getting 
closer to it.

Q. Based on what! A. Based on what!
Q. Yes, you have never had any experience in that re­

gard. A. We read the newspapers and listen—
— 78—

Q. Did you hear about New Orleans where they had a 
big riot and boycott down there about some two or three 
year old children, five and six year old children; did 
you read that! A. Yes.

Q. Aren’t you here before the Court proposing to the 
Court that experience in one area is not similar here in 
Knoxville! A. No, because that experience in the far dis­
tant areas—New Orleans is extremely different from Knox­
ville. Knoxville is extremely different from Washington 
and St. Louis.

Q. Louisville is an extremely distant area! A. Louis­
ville is more distant than Nashville and Clinton.

Q. Nashville is a fairly close area! A. Yes.
Q. Humphreys County is 70 miles from Nashville, Wil­

son County is 30 miles from Nashville, between here and

Dr. John H. Burkhart—for Defendant—Cross



48a

Nashville, they desegregated the entire school system there 
in one year, about two years ago under Court order; you 
haven’t considered that experience at all? A. No, sir.

Q. When you boil it right down you just don’t want to 
move that fast and cannot present the Court with a single

- 7 9 -
factor which it should take cognizance of to support that, 
can you? A. Well, you are asking me in one word to de­
feat our case.

Q. Well, I want you to tell me the truth, if it defeats a 
man’s case if he tells the truth, then I say he should be 
willing to have his case defeated. A. I am trying to tell 
the truth, if you will word your question a little differently.

Q. If the question is answered no, it is answered no; if 
the answer is yes, it is yes. I am simply asking.

Well, maybe it would be better to have the eourt re­
porter read the question.

Mr. Fowler: May it please the Court, counsel is 
arguing a tremendous amount.

The Court: I went into that question in detail 
the other time in the hearing, and if you answered it 
then we will go to something else.

Mr. Williams: That is all, Dr. Burkhart.

(Witness excused.)

The Court: Take a short recess, gentlemen.

(A short recess was had, after which the following 
proceedings were had.)

Dr. John H. Burkhart—for Defendant—Cross



49a

Thomas N. Johnston—for Defendant—Direct

—SO—
T homas N. J ohnston, called as a witness by and on be­

half of the defendant, a fte r having been first duly sworn, 
was examined and testified as follow s:

Direct Examination by Mr. Fowler:
Q. You are Mr. Thomas Johnston? A. Yes, sir.
Q. You are the same person that was superintendent of 

schools of the City of Knoxville in the previous hearing we 
have had in this case? A. Yes, sir.

Q. And you have been superintendent since when? A. 
Since July, 1955.

Q. Mr. Johnston, this morning, as you know, we are re­
viewing the facts which have led the Board of Education to 
make its decision in this desegregation problem.

Can you summarize for us the facts which were pertinent 
in the first examination of this matter here in this court 
which lead you to adopt the original one grade-a-year plan, 
and in your own words, if you like, tell us the relevancy, if 
any, between those reasons then existing and your actions 
later where you adopted two grades-a-year as a plan.

—81—
What I am trying to do is shorten the hearing, Mr. John­

ston. A. Back in the summer of 1955 and for quite a time 
after that, the Board of Education discussed what might 
be an appropriate plan to comply with the Cii’cuit Court 
ruling.

Over the years they discussed many plans but, as I re­
call, it was our Board, and they have changed a little bit 
since 1955, since I have been superintendent and I have 
never noticed or known of a single Board member whoever 
said that we want to work out a plan by which we can 
circumvent or not comply with this ruling but, rather, al­



50a

ways what would be the best way to comply and at the 
same time maintain an orderly educational program for 
both the white children and the Negro children and not 
create tension and emotional upsets and disturbances in 
the community.

Mr. Williams: May it please the Court, we dislike 
to interrupt Mr. Johnston but we will say to the 
Court, the Court’s ruling was that we will not go into 
those matters.

The Court: You are right, but the great trouble 
with that, you are going into it on your cross exam­
ination and I can’t let you go into it and cut it off.

—82—
You are exactly right, that is what I held. I went 

over this ground thoroughly, at least I thought I  did, 
and if you will just put it in a thumbnail sketch, Mr. 
Johnston, because you testified in detail at these 
other hearings, did you not?

The Witness: Yes, sir.
The Court: And I undertook to analyze your tes­

timony, did I not, in that other opinion?
The Witness: Yes.
The Court: I am familiar with it and I would 

cut you off, Mr. Johnston, but since he has gone 
into it with the other witness on cross examination, 
I don’t think it would be fair.

Mr. Fowler: I am perfectly willing to be cut off 
but as counsel pointed out, the burden, theoretically 
at least, is upon the School Board.

The Court: That is right. He may answer. Go 
ahead.

Thomas N. Johnston—for Defendant—Direct



51a

A. (Continuing) Well, to make it short, at long last the 
Board of Education decided to put into effect the grade-a- 
year plan and they did so on my recommendation, and I gave 
them some six or seven reasons in support of this plan 
and all of that is a matter of record.

I thought of all the plans that we had analyzed and dis-
—83—

cussed that that would be the best, and we could profit by 
the experience year to year starting with the first grade.

To come on up to, you asked me why we thought it was 
feasible to add a grade.

Well, we added the fourth along with the third this last 
school year. On the basis of the experience we had had 
since September, 1960 with the first grade, the second 
grade although we had had some administrative problems, 
some were not too serious, the great majority of them mi­
nor, we thought that we could still put in the fourth grade, 
add an extra grade and get along reasonably well without 
creating a great deal of disturbance or running the risk of 
upsetting our whole program, and I recommended to the 
Board that we put in the fourth grade, so we added the 
extra grade.

Q. Why did you not recommend adding more grades'? 
A. Well, I realize we are in a transition period and while 
we had had reasonable success with the first three that we 
could overstep our luck.

Where communities were going along and cooperating 
with us, albeit somewhat reluctantly in places, we could 
over-do this thing by going a little too fast and thus upset 
the whole program, just set us backward, and so I thought

— 84—
that was fast enough to go.

Q. Now turning to the Fulton plan where there has been 
talk about a so-called talk about a transfer plan. Tell us

Thomas N. Johnston—for Defendant—Direct



52a

about that, Mr. Johnston, how is the Fulton plan admin­
istered as approved by the Court of Appeals and this Court? 
A. In the first place we have never turned down anyone 
who has requested to go to Fulton High School who was 
properly qualified who could not get the course at Austin 
High School.

We have been operating the plan very much like we oper­
ated it starting in 1951 for the white children who requested 
transfer to Fulton. We applied it to Negro children two 
years ago, and we have been operating it on the same basis, 
applying the transfer plan to Negro children as well as the 
white.

And we felt that when we wrote into the plan that if 
there was difficulty, if some principal decided that he was 
not going to accept the student or did refuse a student he 
had to put it in writing and give his reasons.

Now prior to that it could have been stopped by a princi­
pal and we would have known nothing about it, and that 
was applied to both the white students and the Negro stu­
dents.

We have had thus far no difficulty with it.

—85—
Mr. Williams: We object to this. I understand 

the Court has already directed them to file an amend­
ment and eliminate it.

The Court: That is what the Court has done but 
he has the right to give his side of the picture.

I am expecting Mr. Johnston with a reasonable 
time, the Court is not going to consciously act arbi­
trary about any of these matters, and I am expecting 
you to re-read this opinion with your attorneys and 
I am expecting it written so that this trial court may 
carry out the mandate of the superior court which

Thomas N. Johnston—for Defendant—Direct



53a

lias ordered me to carry it out, and I want this in 
writing now so that when and if these cases go to 
the other courts it will be spread on the record that 
this Court has made every effort to comply with 
the mandate of the Sixth Circuit Court of Appeals.

The Witness: Yes, sir.
Mr. Fowler: We want to know what we are talking 

about. May I borrow the file?
The Court: Here is the opinion.
Mr. Fowler: What I want is the transfer plan 

itself.
Actually, we have detected no evil within it and 

we want to know what the Court of Appeals is talking
— 86—

about before we get in your bad graces or under an 
injunction, and we would like to know wherein our 
risk lies.

Mr. Williams, do you remember the date that the 
Fulton plan was filed; can you help us to that extent?

Mr. Williams: Yes, sir. You want the date that 
plan was filed ?

Mr. Fowler: Yes.
Mr. Williams: I believe it was filed on or about 

March 31, 1961, and the transfer provision of it is 
found on pages 3 and 4 of the plan.

The Court: This second opinion of Judge Cecil 
is dated July 6, 1962, and, Mr. Fowler, while he is on 
the witness stand and, Mr. Johnston, so there will be 
no misunderstanding about it, here is what this Court 
is interested in. It is in the last paragraph.

‘We remand the case to the District Judge with 
instructions to retain jurisdiction and to require an 
amendment that will permit all students to transfer 
as a matter of right,”—talking about these Fulton

Thomas N. Johnston—for Defendant—Direct



54a

students—“when they qualify for the courses which 
they desire to take in another one of the two high 
schools here involved and such course is not available

—87—
to them in the school they are attending.”

I think he had in mind when talking about that 
this Davis boy. I think he had in mind how you did 
not have a class at Austin and a student wanted to 
attend that class he would not have to file a lot of 
papers in order to get in. I think that is what Judge 
Cecil has in mind.

Mr. Fowler: I guess the way most economical 
then to handle this will be to now indicate, as has 
already been done, that the Fulton plan is in and 
the superintendent of city schools is on the stand 
and we would appreciate counsel for plaintiffs 
making very clear to us wherein that plan does not 
give that right to transfer from Austin to Fulton 
where the course is not available at Austin.

Mr. Williams: I don’t think we are required to 
do that, if your Honor please. The Sixth Circuit 
said this is no good, that they must submit a plan 
which will-—if you are going to have a transfer 
plan to submit one which will allow these students 
to transfer as a matter of right without all this com­
plicated administrative and cumbersome procedure.

By Mr. Fowler:
Q. Mr. Johnston, I will ask you this, the transfer pro-

— 88-

visions applicable to the vocational and technical courses 
has been referred to as cumbersome and complex. Will 
you please turn to the—there are two cards there and the 
whole plan is before you.

Thomas N. Johnston—for Defendant—Direct



55a

First, I will ask you whether or not those provisions, 
the two cards with their specifications of qualifications, 
educational status, the level that the pupil has reached, and 
so on, were those written especially for this Negro transfer 
plan! A. They were not. These are the same cards that 
have been used for years.

Mr. Cowan: I hate to interrupt, but the Circuit 
Court has already passed on that specifically.

Mr. Fowler: If you can tell us what to do, I 
believe it may—-

Mr. Williams: In the interest of clearing this up 
I would like to say to the Court, that Judge Cecil 
made very clear what is to be done, and your Honor 
has made very clear what is to be done—that the 
Board is not to use this transfer procedure where 
Negro children are concerned where a course is not 
offered at Austin but is offered at Fulton, and I 
think that item was brought out before, I believe, 
that this was the regular transfer procedure that 
was used, Mr. Fowler, with respect to white chil-

—89—
dren, but in this situation, the evidence in this case 
shows that it can, and did in one instance, act as a 
deterrent to the Negro child obtaining a transfer 
promptly and therefore it is not desegregating Ful­
ton.

The Court: I am quoting from the opinion, page 4 : 
“There is evidence Eddie Davis, a Negro student 
applied for a transfer to Fulton to take a commer­
cial art course not given at Austin. After two weeks, 
the principal at Austin was still trying to get enough 
Negro students to take commercial art to justify 
establishing the course there. This is unreasonable 
and particularly in view of paragraph 2 of the trans­

Thomas N. Johnston—for Defendant—Direct



56a

fer plan which requires a student to make his choice 
at least four weeks before the end of the semester. 
The student body of either school could be quickly 
canvassed as to its interest in a proposed course 
and if there appears to be insufficient interest to 
establish it in that school, a student desiring to take 
that course ought to be forthwith transferred with­
out cumbersome administrative procedure.”

You see what he meant?
The Witness: Yes.

—90—
The Court: I believe I read what he means, that 

Davis was put to too much trouble and others falling 
in his category, that they would be put to too much 
trouble. Why? They did not know whether they 
were going to have a course and Davis was waiting 
all this time up in the air.

Judge Cecil, who is a very conservative, careful 
and able Judge, says that situation ought to be cor­
rected, that he is looking for this School Board to 
correct that situation.

The Witness: Sir, I  remember, in the testimony 
that I gave here, that was an isolated case. The 
commercial art course, they had it a semester pre­
vious and every high school principal knows how 
difficult it is to organize a course and if he had 
eight, nine or ten interested in a course he might 
establish that class. I think that is the original 
testimony.

Every high school principal has that difficulty, but 
I can’t see how the impression was left that we were 
doing this child particular harm, letting the prin­
cipal have a few days to see if he could re-establish 
his class.

Thomas N. Johnston—for Defendant—Direct



57a

Thomas N. Johnston—for Defendant—Direct 

By Mr. Fowler:
Q. Where did Eddie Davis end np going to school? A. I

—91—
don't: recall.

Q. Did he stay at Austin? A. I think they had a course 
over there. I am not sure. If we did not we took him at 
Fulton. I  don’t recall but I  think—well, I would have to 
go back to the record to give you an accurate answer.

Q. Well, counsel suggests that the Court of Appeals 
meant that this transfer plan should not be applied to 
Negroes. Will you please read into the record some of the 
facts that are asked for by those two cards?

Mr. Williams: We object to that. It is in the 
record.

The Court: I want to understand what is involved.
Mr. Fowler: I want to show that they simply call 

for residence, they call for a statement of how far 
he has gone in his class, they call for information to 
determine whether he is ready to take this course 
in electronics, welding, or art, or brickmaking, what­
ever it is, and it has got to be asked of Negro pupils 
just as all white pupils to find out whether he prop­
erly belongs in this course.

The Court: I see no objection to that, but I don’t 
think that runs afoul.

—92—
By Mr. Fowler:

Q. Those cards have been in the file. I don’t think any­
body ever looked at them. A. Now there are two cards 
kept and one is labeled “Secondary School Enrollment 
Card.” Every secondary school child in the City of Knox­
ville fills out the card, and there is no difference in Austin



58a

High School than there is in any other high school in this 
city.

Q. What does it show? A. It shows the name of the 
student, his grade level, division, and so on, and his date 
of birth, age, the date entered the school, address of 
parents, address of guardian, address of pupil, does the 
parent or guardian live inside or outside of the city, the 
parent’s business or occupation, business address, if so, 
which one, did pupil ever attend a Knoxville school before, 
if so, which one last, tell when, and a place for the dates, 
where did the pupil go to school last, town and state— 
that is, if he an out-of-state pupil just coming in, grade 
and so forth. And on the back of the card is a form for 
filling out the courses that the student wants to take. It is 
a schedule card.

The Court: I don’t believe that Judge Cecil in­
tended to prescribe that procedure. I think what 
he had in mind, when the—what is the name of

—93—
the school?

The Witness: Austin.
The Court: When Austin did not have a class and 

when this colored, Negro boy, wanted to go to a 
class which it had over at Fulton, he shouldn’t be 
held in the air for weeks and days waiting to see if 
they could get enough students over there.

I believe that it what he had in mind.
The Witness: The second card has to do with 

the application for transfer to the vocational divi­
sion of Fulton High School. It is a card which we 
have used since 1951. We didn’t even have it re­
printed when we went into this program, didn’t think 
it was necessary.

Thomas N. Johnston—for Defendant—Direct



59a

It gives, we ask this be made oat in triplicate. 
It asks for the name, the address, telephone namber, 
age, date of birth, vocational aptitudes, any other 
remarks, the parents’ signatnre, and the principal’s 
signatare, and the vocational school approval, a place 
for transfer approved in the child personnel depart­
ment.

We have had these cards all these years and we 
make state reports on pnpils’ attendance and we 
have to know where the pnpils are becaase we get a 
third of fands from state soarees and sometimes a

- 9 4 -
little hit more in the vocational program and we 
mast not—in other words, it is an aeconnting for 
a stadent, is he in school or not in school.

If we transfer a stadent to Fulton High School, 
one of these three application cards go to the child 
personnel department so that they knew that this 
stadent is in school and what school he is in.

The Coart: Now off the record—

(Remarks of the Coart off the record concerning 
another case.)

Mr. Fowler: May it please the Coart, at this point, 
so that we will have the Falton plan in the present 
record we are making ap, I ask for the agreement 
of coansel that it may he incorporated, being a plan 
to provide vocational and technical training facili­
ties for Negro stadents similar to those provided 
for white stadents at Fulton High School, filed in 
this case on March 31, 1961 with the plan attached 
to it consisting of four white typewritten pages plus 
the two cards with the printed forms on them.

Thomas N. Johnston—for Defendant—Direct



60a

Mr. Williams: You are asking it be incorporated—
Mr. Fowler: As part of this record at this point.

— 95—

The Court: All right.
Mr. Fowler: Of course, it is already in.
The Court: It may be done to clarify this record, 

it may be done.
Now, Mr. Fowler, I want you to either file a 

petition in the Court of Appeals and ask Judge 
Cecil to clarify this mandate for a declaratory judg­
ment on it or to amend this plan in writing and 
indicate in this record that the Board has complied 
with his directive.

Mr. Fowler: We shall do that.
Mr. Williams: May it please the Court, let the 

record show our objections to this plan being intro­
duced as an exhibit at this hearing, and there has 
been—

The Court: This is just for the purpose of clari­
fication.

Mr. Williams: May it please the Court—
The Court: Now I don’t want to hear anymore. 

Let’s examine him. We have got to try this case.
Mr. Williams: We object, if your Honor please.

By Mr. Fowler:
Q. Now, Mr. Johnston, we were to ask you this morning

— 96—

about the program for handicapped and crippled children 
and the Van Gilder Occupational Training Center. Tell us 
about those things insofar as Negro children are concerned? 
A. We have a program for crippled children and children 
who have cerebral palsy, and that program is held at Fort

Thomas N. Johnston—for Defendant—Direct



61a

Sanders Elementary School. It is the first sixth grade 
school, the first six grades are in that program, and we 
have two Negro children.

I don’t know their difficulties but that little special divi­
sion is integrated and has been since the school year 
1960-61. I can’t tell you what grade they are in now and 
what grade level, but we can pick up these children just 
like the white children and take them to Fort Sanders Ele­
mentary School.

Now Van Gilder school has been mentioned. It is an 
experimental school to try to help students on the junior 
high school level who have gotten about everything they 
can get from a regular organized school in this city. And, 
I believe, in order to get the maximum state funds, we set 
this around an I.Q. of 80, but basically they have got every­
thing they can get from the academic program in the 
regular school, and if they go to Van Gilder they are given 
some reading and writing, and so forth, on their level 
plus about half of their time being devoted trying to learn

—97—
some skill on the industrial art level or vocational level.

At the present time there are about sixty-five students 
in the program and about sixty-five on the waiting list, 
and we still at this time consider it an experimental pro­
gram although it looks to be very successful.

There is some debate going on now as to how to report 
this school in the state’s records because there is nothing 
like it in the state.

That is about the story on the Van Gilder school.
Q. How much capacity do you have? A. I guess we are 

right at capacity. We might take five or six more students.
Q. You say you have sixty-five already waiting? A. That 

is right. These figures change from day to day, but I think

Thomas N. Johnston—for Defendant—Direct



62a

around February 1 that was substantially the number that 
we had.

Q. Dr. Burkhart said that this was actually at Moses 
school? A. The school is located in the old Moses school 
and we call it Van Gilder because originally when we tried 
to get funds to start the project we intended to put it 
in the old Van Gilder school, but it turned out that to 
repair that school and make it safe the cost was prohibitive

—98—
and we had a little space over in Moses school and we 
decided to use it and now have none of the units at Van 
Gilder school. But it is in the old Moses school.

Now one reason that we are not able to really take care 
of all these children, we could probably expand that over 
there a little bit by creating a little more space, but it is 
a matter of money. As you have read in the paper, it is 
budget troubles.

Q. How many educatable mentally retarded pupils do 
you have? A. In the total city school program?

Q. Yes. A. There are 23 classes and it averages from 
15 to 18 per class. I guess there would be around four 
hundred or better in the total program.

Mr. Fowler: You may ask him.

Cross Examination by Mr. Williams:
Q. Mr. Johnston, you all have—not you but does the 

City Board have what are known as distributive education 
classes? A. Yes.

Q. What does this consist of? A. In the regular high 
schools it consists of a program for junior and senior high

—9 9 -
school students. It is introduced on a junior high school

Thomas N. Johnston—for Defendant—Cross



63a

level about an hour and a half a day, introduced in your 
salesmanship class, more or less study.

Q. More or less what? A. Studying the elements of sales­
manship in their junior year. In the senior year the stu­
dents who have taken this in the junior year and would be 
participating in the senior year, it becomes a co-op pro­
gram where they go to school three hours and then are 
assigned to work in some store outside of school for a 
minimum of fifteen hours a week or three hours a day, and 
that is considered as part of their school work.

This work that they do in the store for which they are 
paid, and it is supervised by one of our teachers and they 
are checked up—one of the store people reports, reports 
are made and they are given credit for it. It in the senior 
year it is a co-op program.

Q. This program enables a junior and senior high school 
student to gain valuable on-the-job training for work sub­
sequent to graduation in the event that he is not to continue 
to go on to college, does it not? A. Yes, sir.

Q. And these classes are limited exclusively to the white 
high schools, are they not? A. At the present time, yes, sir,

— 100—

but I would like to point out the program for Negro high 
school students called diversified occupations which op­
erates on the same basis in the senior year in which they 
are assigned jobs and go to school three hours a day and 
go out and work three hours a day and are given credit.

Q. Don’t you have some distributive education classes 
at Knoxville High School for adult persons in the com­
munity? A. Yes, sir, that is called the distributive edu­
cation extension program for courses for adults; yes, sir.

Q. And there are no Negroes at all involved in that? A. 
Not that I know of.

Thomas N. Johnston—for Defendant-Cross



64a

Q. This is not made available for Negroes? A. I don’t 
know that we have had any request for it.

Q. Well, you mean to tell me that every white person 
who attends your distributive education class at Knoxville 
High School requested that the program be instituted in 
the first place? A. Well, the program has been going for 
about three and a half years. I don’t know whether they 
instigated it in the first place but we don’t start a course 
unless there is a request for it.

— 101—

Q. The course is made available to all white adult citi­
zens of Knoxville without regard to whether or not they 
initiated a request that such program be made available? 
A. A course is not started at all unless there are a suffi­
cient number of people requesting the course.

Q. But at present you exclude Negroes from the course, 
do you not? A. We do not. We haven’t had a request from 
the Negro people to start a course, that we know of.

Q. You have the course presently going, do you not? A. 
Some courses, these are special courses and there may be 
sixteen weeks or sixteen hours.

Q. You have some distributive education going for adult 
citizens at Knoxville High School and if a Negro wanted 
to attend those classes he would be denied the right to 
do so on the ground of race and color, would he? A. Under 
the present policy we would deny it. If a number of them 
wanted a program we would probably set it up.

Q. If you could find enough Negroes—that would be 
like Eddie Davis at Austin High School—if you could find 
enough Negroes you might set up a class except that you 
would not admit a Negro if you couldn’t find enough

- 102-

Negroes, you wouldn’t admit him to Knoxville High School? 
A. I don’t think your inquiry is similar at all. We had a

Thomas N. Johnston—for Defendant—Cross



65a

course all ready at Austin High School the previous year 
in commercial art and—

Q. What I am asking you, Mr. Johnston, is this, if a 
Negro wanted to attend one of the courses which you pre­
viously have operating over at the Knoxville High School, 
he would be turned down because of your policy against 
racial desegregation, would he not? A. Under the present 
policy.

Q. And this is likewise true with regard to distributive 
education in the white high schools. Why did you call it 
distributive education in the white high schools and diversi­
fied occupations in the Negro high school? A. I did not 
call it that. I directed your attention to another program 
similar.

Q. Yes, sir. A. It could be similar and not be exactly 
alike.

Do you mind if I explain?
Q. No, sir. A. All right. Now distributive education is 

basically retail selling, teaching children to sell. Eventually
—103-

in the senior high schools they work on a co-op basis to 
get experience.

Diversified occupations simply means, the word “diversi­
fied” is more than selling. They can work at all kinds 
of things. I think the highest number they had was seven­
teen different type jobs in industry, and so forth, and the 
idea of going to school three hours and going out and work­
ing on the job three hours is where the two courses are 
similar.

Now, if you want to get into why the distributive educa­
tion is not promoted or has not been through the years in 
the Negro high school, you will have to talk with the em­
ployers of this city.

Thomas N. Johnston—for Defendant—Cross



66a

Q. Well, as a matter of fact, getting right down to it 
that is just the reason the Board has felt that these classes 
don’t need to be established for Negroes because Negroes 
don’t get hired in department stores downtown anyway; 
that is correct, isn’t it? A. No, we can’t control what the 
employer downtown does.

Q. Of course, you are aware that some Negroes are be­
ing employed in department stores as sales clerks down­
town now, are you not? A. Yes, but that is of recent date.

Q. WTell, of course, it exists now and you are proposing
— 104—

a plan here for desegregation of the schools. You would 
agree, would you not, that for the high school student who 
does not plan to attend college, plans to go in commercial 
fields, that this is a very valuable and vital course or train­
ing just as the technical high school is? A. Very practical.

Q. So that the Board under its present policy proposes 
to completely deny all Negro children who are presently 
in high school of that particular policy? A. It doesn’t pur­
port that at all. Now if employers are now employing Negro 
high school students or Negro people, then the School 
Board would have an opportunity to offer distributive 
education at the senior high school, at Austin High School, 
and it would be willing to do it.

Q. Well, what I am saying you have the course already 
established at the white high schools now. A. I believe 
they are in all our white high schools.

Q. And you don’t have such a course at the Negro high 
school? A. No, sir, and I told you why.

Q. Well, wouldn’t it be easier to offer this course to any 
Negro who qualified and desired to take it than to employ

— 105—

a new teacher and set up a Negro course at Austin High

Thomas N. Johnston—for Defendant—Cross



67a

School? A. That would depend entirely on the enroll­
ment and demand at these different schools.

Q. Have you made an effort to find out what the enroll­
ment would be, Mr. Johnston? A. From time to time we 
made studies of these things but we have other things to 
do from day to day rather than to make every other day a 
survey of these problems.

Q. Well, if you were operating a completely desegregated 
school system there would not be that problem either, would 
there? A. I think there would be problems, yes.

Q. I mean, there wouldn’t be any problem—we will get 
to that later, but I mean there wouldn’t be any problem in 
starting an additional course, any particular problem, in 
distributive education or this type of special education or 
anything else. With respect to establishing a special course 
for Negroes, and that sort of thing, there wouldn’t be any 
problem on that? A. Yes, there would be a problem.

Q. What would be the problem? A. Before you could 
establish a course you would have to know whether or not

—106—
the employers would create work situations for these chil­
dren.

Q. What I am saying, you would not have to establish a 
special course for Negroes. You have it already established 
now, do you not? There wouldn’t be any special problem 
with regard to integrating the Negroes into the course be­
cause the whole system would be desegregated? A. If the 
whole system were desegregated before, I think there would 
be problems.

Q. We will get to the problems later, but I am talking 
about, you mentioned problems in setting up a Negro 
course and I am saying that if you had the entire system 
desegregated then there would not be any problem; isn’t 
that true, sir? A. I think a few might be in the regular

Thomas N. Johnston—for Defendant—Cross



68a

high schools around, and there might not be room for this. 
I don’t know.

Q. Well, there are room for those who are there, is 
there not, who are attending the courses ? A. I presume so.

Q. And if they all started out together at the beginning 
of the year, if there wasn’t room you wouldn’t just point 
to the Negro children and say there isn’t room for them, 
would you? A. It is according to where the zones are.

Q. Assuming they all live in the same zone and the
- 1 0 7 -

school is overcrowded, you wouldn’t just point to the Negro 
children and say there isn’t room for these particular 
five Negro children here? A. No, if we had a completely 
desegregated system, we wouldn’t do that.

Q. On the other hand, there might be five white children 
whom you could say there wasn’t room for them. In other 
words, you would take it on a first come, first served basis ? 
A. Yes, sir, and on qualifications.

Q. Now getting down to the speed of your plan, Mr. 
Johnston.

Have you brought the information which we requested 
in the subpoena regarding the enrollment of Negroes and 
whites in each school? A. As best I could, Mr. Williams.

Q. Could we have a copy of that, sir? May we examine 
a copy of that ?

The Court: Before I forget it, Mr. Johnston, I 
don’t want to get your mind off the subject. All of 
you gentlemen listen. I have overlooked this, Mr. 
Cowan.

Judge Cecil’s opinion refers to your administrative 
program so far as relating to Fulton High School. 
Beading from page 4. Listen carefully to this be-

—108-
cause I am interested in this:

Thomas N. Johnston—for Defendant—Cross



69a

“Assuming that paragraph 4 of the plan is in ac­
cordance with a requirement of the federal govern­
ment, and we have no argument or authority to the 
contrary, we must find that it is non-discriminatory 
and we therefore approve it.”

Then the Court quotes from the federal program.
“In paragraph 2 of the plan it is stated ‘the 

student or students may request and obtain transfer 
upon the terms as set out in the transfer policy now 
in effect in the Knoxville city schools for vocational 
students, same being a part of this plan.’ ”

Now here is what Judge Cecil said:
“We are of the opinion that this transfer plan is 

too detailed and too complicated and offers too much 
opportunity for a transfer to be stopped either by 
the transferring principal or by the receiving princi­
pal. The appeal to the superintendent and then to 
the Board would be time consuming and with little 
practical relief to the rejected student. Should he 
win his appeal, he would be hopelessly behind the 
class he wished to join. If a student meets the quali­
fications for a course not given in the school in which

—109—
he is registered he should be transferred as a matter 
of right.”

That is what I want complied with, gentlemen, and 
I failed to read that in the first part.

Mr. Williams: I started to call that to your 
Honor’s attention. I thought your Honor overlooked 
it.

The Court: All right.

Thomas N. Johnston—for Defendant—Cross



70a

Thomas N. Johnston—for Defendant—Cross 

By Mr. Williams:

Q. Now, Mr. Johnston, you have a document here which 
shows the number of Negro and white pupils enrolled in 
each school. Are these figures as of the current date? 
A. Yes, sir, as of February 1.

Q. On February 1 you had 5,214 Negro students and 
16,121 white students, a total of 21,335 students in the 
entire system, and you have a total of how many schools ? 
You don’t have the number here. A. There are 40 regular 
schools.

Q. And how many Negro? A. Nine.
Q. Now how many of those white schools—I guess you 

would show here if you went through this but you probably 
have these figures—how many of those white schools are 
presently involved in desegregation? A. Eleven.

— 110—

Q. Eleven? A. Yes.
Q. Which ones, could you name—let me check them off 

then rapidly. A. Belle Morris—these are elementary 
schools—Belle Morris, Bell House, Brownlow, Fair Garden, 
Flenniken, Fort Sanders, Lincoln Park, McCallie, Moses, 
Park Lowry, and one high school, Fulton.

Q. Fulton High School? A. Yes, sir. Two.
Q. Oh, yes. Now, Mr. Johnston, what is the number of 

schools that you had the first year of desegregation, 1960- 
61? A. Eight.

Q. And how many did you have the second year? A. We 
have got to actually figure it, I think it was nine. We had 
nine the second year plus Fulton High School.

Q. Now the first year, how many Negro pupils did you 
have eligible to attend white schools? A. The first year?

Q. Yes, sir. A. I don’t have the figures here, but as I 
recall, it was 88.



71a

Q. And how many Negro—white pupils did you have
—in­

eligible to attend Negro schools that year? A. I don’t 
recall the number. I don’t have it here.

Q. How many Negroes did you have actually attending 
white schools that year? A. Twenty-eight.

Q. How many white did you have actually attend Negro 
schools that first year? A. None.

Q. The second year when you had nine schools plus 
Fulton, how many Negroes did you have eligible to attend 
white schools ? A. I don’t recall the number.

Q. Well, was it much over 88? A. Well, since we were 
in the second grade, I presume about a third more.

Q. How many? A. The total would be about a third 
more. I would say possibly 40 or 50 more.

Q. Which would mean about 125. How many did you 
have actually attending white schools ? A. 52.

Q. Do you recall how many whites you had eligible to 
attend Negro schools that year? A. I do not recall the 
number.

— 112—

Q. You haven’t kept figures on that? A. No.
Q. And how many—I presume no whites have attended 

any Negro schools? A. No, sir.
Q. Any of the years. This year I see from your docu­

ment here that—incidentally, would you introduce a copy 
of these documents here that you have now or to be fur­
nished later as an exhibit to your testimony, Mr. Johnston? 
A. Yes, sir.

Thomas N. Johnston—for Defendant—Cross

(Exhibit No. 1 was filed.)

Mr. Williams: Let the record show that document 
No. 1 is a list of schools with the total Negro and 
white population of the schools as of February, and



72a

that document No. 2 is a list of responses to ques­
tions asked in a subpoena duces tecum relating to 
the number of Negro students eligible and the num­
ber of white students eligible at certain schools and 
the number actually attending certain schools.

(Exhibit No. 2 was filed.)

By Mr. Williams:

Q. This second document shows that you have, as of 
this past year, I think you had four grades desegregated.

—113—-
You had 155 Negroes eligible to attend white schools; is 
that correct? A. This is as of February 1.

Q. Yes. A. And that figure is the best that we could 
come up with on short notice.

Q. And you had 359 white pupils eligible to attend Negro 
schools? A. Yes, sir, and I should say that is the best 
figure—it might vary a little bit, but that is the best esti­
mate we can get on short notice.

Q. Now none of the white pupils actually attended the 
Negro schools? A. No, sir.

Q. Do you have any explanation of that ? A, I have my 
own explanation; yes, sir.

Q. No, sir, I mean do you have any educational or psycho­
logical explanation for that? A. I don’t know whether it 
is educational or psychological. Maybe we have both, psy­
chological, and so forth, and the reason could be they just 
prefer, I presume, to be with their own people.

Q. That is just a presumption on your part? A. Mine 
should be as good as some of these others, I guess.

—114—
Q. You have only 90 Negroes actually attending these 

eleven white schools? A. Yes, sir. That is as of Febru­
ary 1.

Thomas N. Johnston—for Defendant—Cross



73a

Q. So that you have approximately one-third, only one- 
third of the total white schools involved, is that correct? 
As I understand, you have 31 white schools and— A. Well, 
we have 22 white elementary schools, and ten of those are 
envolved in desegregation.

Q. You have 22. You have about half of the white schools 
involved, is that correct? A. Yes. Our schools are broken 
into the divisions of elementary, junior and senior high 
schools.

Q. And most of them are in small numbers as, for ex­
ample, 24 at Belle Morris, four at Belle House, ten at 
Brownlow, seven at Fair Harden, four at Flenniken, six 
at Fort Sanders, one at McCallie, two at Moses— A. Did 
you get the fourteen at Lincoln Park?

Q. Fourteen at Lincoln Park, yes, and sixteen at Park 
Lowry.

Are you sure these figures are accurate, you said the 
first of February? A. As of February 1, yes, sir. These 
things change from day to day. That is the reason I don’t 
want to say under oath that that figure is it today.

—115—
Q. Now, do you have any information as to the number 

of white teachers involved in desegregation ? A. The num­
ber of white teachers?

Q. Yes. A. No, I don’t have that.
Q. Your white schools are staffed exclusively by white 

teachers, are they not? A. Yes, sir.
Q. So that the only teachers who obtain any experience 

in desegregation in Knoxville have been the white teachers; 
is that correct? A. Yes, the ones that are teaching these 
children.

Q. You don’t know how many white teachers are in­
volved? A. That would be very easy to figure out. If we 
have—we teach four grades in a school, we know that at 
least four teachers are in that school who are involved in 
the program of desegregation.

Thomas N. Johnston—for Defendant—Cross



74a

I can take my faculty list, I would have to confer with 
the principals and get the assignments within the school 
and I could come up with the number of teachers.

Q. Well, that wouldn’t necessarily apply, would it, Mr. 
Johnston, because the fact that you desegregate four grades 
in a school doesn’t mean you have Negroes in each grade

- 1 1 6 -
in that school? A. In the big schools you might not have 
enough to go around other than two or three classes.

Q. In McCallie you had only one Negro pupil there as 
of February so that although you had normally four grades 
desegregated here is one Negro child in that school only, 
and only one teacher could conceivably be involved? A. 
That is true, but there would be others. I  will point this 
out—

Q. Yes. A. In one school where I know they had either 
three or four first grades, well, rather than put all of the 
Negro first grade children who applied in our zone, they 
were divided into the four, in an effort to be fair.

Q. Well, at any rate, you have no information at this 
time as to how many white teachers are involved in desegre­
gation, no exact information? A. No exact information, 
but I will be glad to file an exhibit if you—that would be 
accurate. I could do it later.

Mr. Williams: All right. I would appreciate it 
if you would file that as an exhibit.

(Exhibit No. 3 to be furnished later.)

By Mr. Williams:
Q. Mr. Johnston, what are you basing the experience on

—117—
that you are talking about to get if you don’t even know 
how many teachers are involved in it? You have never

Thomas N. Johnston—for Defendant—Cross



7.5a

ever met with the teachers, have you? A. I have never 
met with who ?

Q. Specifically with the teachers involved in desegrega­
tion? A. I don’t recall specifically meeting with those 
people. I have met with faculties and the principals and 
we have discussed matters.

Q. Well, what reports have been made regarding de­
segregation experience? A. What do you mean reports?

Q. I take it, that in addition to community hostility, the 
other reason that you say they, or that somebody said, 
I believe it was Dr. Burkhart, I believe, who mentioned 
experience too, that you just wanted to up two grades this 
year because you wanted to get some more experience, 
that that was the reason you proposed the first grade-a-year 
plan in the first place because you needed experience. What 
reports have you been given from your teachers and/or 
principals with specific regard to desegregation problems 
that shows any experience? A. I should point out that 
the reason we don’t have formal reports about the program 
is that I haven’t asked for them. But I get reports from

—118-
principals from time to time about little incidents, some 
minor and some not so minor, relating to their experience 
in the schools in this desegregation program.

Q. Yes, sir, but what formal reports and what analyses of 
these reports in terms of effect on the school system have 
you had? A. I have never called for formal reports.

Q. Never had any formal reports. All right. A. But 
we have had reports of various incidents and activities—

Q. You mean you have had reports of maybe a couple of 
kids fighting, or something like that? A. I have had a 
little of it. You name it and I probably had it.

Q. They are regular, ordinary disciplinary problems you

Thomas N. Johnston—for Defendant-—Cross



76a

would have at any school? A. Oh, I wouldn’t call them 
ordinary, some of them.

Q. Eather than just dealing in vague generalities, Mr. 
Johnston, what are you talking about, specifically, now, 
that you have had some oral report on. You haven’t had 
any written reports? A. Mr. Williams,-—

Q. Or oral reports, anything. A. Let me say, first, if
—119—

I may, that I am very conscious all the time as to how well 
we are doing, and I am not out looking for trouble. I am 
talking with principals about how well they are getting 
along, and I do quite frequently ask for formal reports, but 
I do get little reports about incidents that are not so good. 
Then I get reports that things are going along all right. 
I asked for that. But, that is, I don’t put it on paper, ask 
for formal reports on the program. I am letting well 
enough alone.

Q. These are regular little disciplinary incidents that 
occur in any school system, are they not, Mr. Johnston? 
A. Some are and some aren’t.

Q. Well, if some were extraordinary didn’t you feel that 
that was—why didn’t you feel that that wasn’t important 
enough to document? A. That is a matter of judgment, 
Mr. Williams.

Q. I want to find out what you consider important. You 
said some were important. What is one or two of these 
serious problems you were talking about? A. Well, having 
to evacuate a complete school at two o’clock in the after­
noon.

Q. Having to evacuate what ? A. The school, a complete 
school, send everybody home, get them out of the building.

— 120—

Q. Why was this done? A. Well, it was because we had 
reports that a bomb had been planted in this school and it

Thomas N. Johnston—for Defendant—Cross



77a

was going off at two o’clock because of a couple of Negro 
students that we had in the building.

Q. Because of a couple of what? A. Because we had the 
school desegregated, two Negro children in the school.

Q. When did that happen? A. I don’t recall the exact 
date but it happened during the school year of ’60-’61, in 
the school year of ’61.

Q. Well, nothing did happen, did it, Mr. Johnston? A. 
Plenty happened which was time consuming.

Q. Well, what I mean is, was there actually a bomb in 
the school? A. We didn’t find any. Now you say nothing 
happened, there was anxiety and excitement and tension 
and time consuming. Maybe you think that I would not be 
concerned about a thing like that. And, of course, we did 
not find a bomb in the school.

We took no chances at all. We evacuated the school. We 
had the school completely checked out by the fire depart­
ment,

— 121—

Q. How many times has that happened? A. That is the 
only time since that I can recall.

Q. That happened in the case of a single school? A. Yes.
Q. What relation does that have for delaying desegre­

gating the junior high schools and high schools for six 
years? A. That is just one incident.

Q. Well, what other serious incidents? A. Well, I don’t 
know of any other serious. I think there have been minor 
situations that could have become major if we hadn’t moved 
very rapidly to control the situation.

Q. For instance? A. There are a few of these that I 
think I can explain, and some I don’t think it in the interest 
of the public as well as both Negro children and white chil­
dren to state them publicly.

Q. What is it that you feel you can explain? A. Well,

Thomas N. Johnston—for Defendant—Cross



78a

I mentioned two or three. I told you to keep in mind we 
were faced with a very serious change from a traditional 
pattern. It was something new. And we were trying to get 
the community to accept this and go along with us.

— 122—

At one school we knew very well the number of children 
who were due to go there in the first grade, and the number 
was three, but seven showed up.

Well, now, the people in that community began to call 
me and want to know why there were seven when they had 
gotten word at one of our public Board meetings there 
might be three at this school.

The answer was that four of these children had gone to 
another school the year before in the first grade and had 
failed their work and they were living in this community 
and they were eligible to go.

We had no way of knowing this and that made the dif­
ference, and that was explained to a lot of these people 
who were calling. These were white people who were call­
ing and it seemed to be all right.

Now in a day or two there was a student who came from 
another direction, whose father was driving him to school 
but they came from the opposite direction from the other 
group, and people began to call me and to call the school 
principal and claim we were helping to integrate that 
school by permitting transfers from another section of 
town outside of their own little zone here, and we hadn’t 
done that. We weren’t going to permit that and we couldn’t 
understand it but the community was really getting upset.

We pursued the matter and found that this child’s father
—123—

had purchased a home over in the community and was a 
little—it was a new home and there was some delay in 
getting it finished, the work, and it was quite natural

Thomas N. Johnston—■for Defendant—Cross



79a

for him to register his child there because that was where 
he was going to live in the first place, and we checked it out 
completely. It was explained to the people and everything 
quieted down.

Q. This is a type situation, the type of problem that 
you are talking about? A. Well, it is some of them; yes, 
sir.

Q. Do you have other type that you are talking about? 
A. I have quite a few and some of them, I don’t think it is 
in the best interest of the public schools of this city and for 
both races to be exposed.

Q. As a matter of fact, none of these problems are prob­
lems which the school administrative officials cannot handle 
in the same fashion that you have handled these problems, 
are they? A. I think your luck runs out eventually. I am 
willing to work at it but I don’t think we ought to stretch 
our luck.

Q. But your luck—all these problems that you have men­
tioned in relation to community attitudes and, just as you 
said on direct examination, when you talk about stretching

—124—
your luck, you are talking about what you and the Board 
are guessing to be community attitudes and what you think 
will happen in terms of action on the part of the commu­
nity? A. I don’t agree.

Q. What you, I mean, you are talking about, at least 
partially about that, aren’t you? A. Maybe partially but 
I wouldn’t say totally.

Q. What else are you talking about, Mr. Johnston, in 
addition to the community attitude? A. Well, isn’t that 
important, the community attitude?

Q. I  see. Well, I am just trying to find out what you are 
talking about. A. The School Board is the group that

Thomas N. Johnston—for Defendant—Cross



80a

is responsible to this whole city for the operation of the 
schools, and they delegate to me certain authorities for the 
execution of their policies, and I think that I am in a posi­
tion to receive phone calls and complaints and see little 
things perhaps even more so than the School Board mem­
bers.

It all filters into my office, and the attitude of the com­
munity I think is very important, and if I feel the attitude 
is a certain way because of certain reports or reactions, I 
think I should make my recommendations to the Board of

- 1 2 5 -
Education accordingly.

Q. Now, Mr. Johnston, the Board is still paying a tre­
mendous monthly amount for transportation of white chil­
dren out of their residential zone of the Mountain View 
over to Park Lowry; they are still doing that, aren’t they?

A. Yes, it is doing that now.
Q. Paying approximately $247.00 a month for those 

children. It is also paying some $450.00 a month to trans­
port Negro children from Edgewood-New Hope zone to 
Green and Maynard schools; that is true, isn’t it? A. Yes. 
Wouldn’t you like to have an explanation of those?

Q- That is under the same plan, your so-called transfer 
plan? A. That has nothing to do with it.

Q. What is that under? A. Part of this is already in 
the record but we have three eases in this city where we 
have done away with the previous school, and in doing that 
we have asked the people—we have given them the choice 
of going to a certain school or being transported, and they 
have chose transportation in all three cases.

Q. You mean you have given them a choice to go to the

Thomas N. Johnston—for Defendant—Cross



81a

white schools, in the case of the Negro children, and to the 
Negro school in the ease of whites, closer to their respec-

—126—
tive, closer to their home, or be transported at the Board’s 
cost to a school occupied by members of their own race in 
another neighborhood? A. Well, they know they could 
go to the nearest school up to the fourth grade, but these 
were unusual circumstances where the schools in two cases 
were completely taken away, and we felt that we were 
obligated to provide transportation for them if they re­
quested it since we were asking to take the school away 
from them.

I would like to give you the three cases so that you can 
see we were not discriminating as far as we could tell. 
Certainly we did not mean to be.

Starting back, the children who lived out at the Broad­
way Shopping Center, a school called Edgewood.

According to the agreement the School Board had with 
the property owners out there, after a certain number of 
years if they needed the property then the two-room school 
that we had would become the property of the owners of 
the land.

After the fifth year they exercised that when they built 
the Broadway Shopping Center and that meant we had to 
give up the school. 31 children were involved in that, and it 
is called Mucktown, originally, and the parents of those 
children were asked if the Board of Education would agree.

—127—
Q. Mr. Johnston, may I interrupt just a minute, I just 

don’t want to get too far into this because I believe this is 
already in the record, and I will simply ask you about the 
transfer of the Negro students, this transportation is 
necessitated by your action in permitting them to choose

Thomas N. Johnston—for Defendant—-Cross



82a

a school of their own race? A. No, it is because we took 
that school away from them and we asked them if they 
cared to—we then called it New Hope School, the first 
seven grades would go up there or Belle Morris, Brownlow, 
and if they did not care to do that, since we were taking 
their school away, they could have the choice of schools 
above the third grade.

Q. But this was a segregated school you took away from 
them and you have now given a choice to go to a white 
school which is closer to their home without transportation 
or receive transportation to be transported over to a school 
populated entirely by Negroes; that is true, isn’t it? A. 
The school that we did away with was, those children in the 
first grade at the time, had an opportunity to go to Belle 
Morris or Brownlow if they wanted to.

Q. But it was still a segregated Negro school? A. Yes, 
it was attended by all Negroes.

Q. That wasn’t the situation in Mountain View. Moun­
tain View wasn’t taken away from the Negro children,

—128—
this is a white school which was changed from white to 
Negro, isn’t that right? Wasn’t taken away from anybody, 
the school is still open, it was simply changed by the Board 
from a white to a Negro school? A. It is a matter of how 
you want to express it. We changed it, you can say taken 
from the white and given to the Negro children, as you say, 
taken away, but the cases are similar.

Q. But the white children still live in that community 
and transportation paid to the amount of $247.00 a month? 
A. They paid part of it.

Q. This would eliminated if the total desegregation, if 
you got rid of this transfer provision which automatically 
permits the automatic transfer, wouldn’t it ? A. You mean 
the transportation required would be done away with?

Thomas N. Johnston—for Defendant—Cross



83a

Q. This expense to the school system. A. I  presume so.
Q. Now, Mr. Johnston, when you come right down to it, 

you don't know of any reason of why total desegregation 
in September could not be carried out by the Board except 
for these fears that you are talking about with respect to 
what might happen with regard to community attitude, do

—129—
you? A. I don’t think our community is ready to accept it. 
I don’t think we could get adequate funds to keep our 
School Board, our school system going.

I don’t think our city councilmen are ready for that, 
and I don’t think the people would support them or sup­
port an adequate school budget if we went into it.

Q. Well, all right, sir, don’t you receive funds from the 
state? A. We receive about one-third of our operating 
funds from the state; yes, sir.

Q. Well, there are a few of us other citizens of Tennes­
see who will try to see that you keep that.

Now where do your other funds come from? A. About 
a third of our funds, a little more, come from Knox County 
with a division of the tax money which is paid by city 
residents.
. Q. This is also an arm of the state? A. That is true.

Q. The county, in order to receive these state funds, 
must furnish certain funds itself, must it not? A. Well, 
they have to provide funds to the minimum funds program 
of the State of Tennessee.

Q. And the city is required by state law to put up cer­
tain funds if they want to receive state funds? A. They

—130—
maintain the—it has to maintain a minimum program.

Q. So long as your public school system was operating, 
and so long as no action was taken by the state, there

Thomas N. Johnston—for Defendant—Cross



84a

wouldn’t be much question about you getting funds to 
operate your school system! A. But there was a con­
siderable amount of action taken by the state. They called 
a special session of the legislature and passed a whole 
bunch of laws with respect to integration of schools, and so 
forth, as I recall.

Q. Well, that was done several years ago! A. 1958 is 
not very far back.

Q. 1957. A. ’57.
Q. As I recall. You don’t mean to tell me that the 

Board purports to deny the constitutional rights of several 
thousand Negro children based on a possibility of what 
the state legislature might do at some subsequent time! 
A. You brought that up, I did not.

Q. Mr. Johnston, on the Fort Sanders school, you say 
that is integrated, you think, now! A. Fort Sanders Ele­
mentary School.

Q. Fort Sanders Elementary School for crippled children.
—131—

A. No, it isn’t. You see, we have a section in this building 
for crippled children, and when the school was built we 
had three or four rooms particularly arranged and we have 
a ramp over there for loading and unloading children in 
wheel chairs, but the regular school is a regular sixth grade 
school.

Q. What is the basis for the admission of children to 
that school! A. The crippled children?

Q. Yes. Is it based on residence or without regard to 
residence? A. It is without regard to residence.

Q. So that any Negro child who applies and qualifies 
can be admitted to that crippled children’s section of Fort 
Sanders? A. Yes. As a matter of fact, the first one didn’t 
even apply. We found the child and went and got it.

Thomas N. Johnston—for Defendant—Cross



85a

Q. That is the policy of the Board, actually.
Now, with respect to the edueatable mentally retarded 

classes, there is no reason why those can’t he desegregated, 
is there? A. I did not say that.

Q. All right, then I am asking you why they cannot be
—132—

desegregated? A. The same reason as all the others.
Q. You mean this community attitude? A. It is partly 

i t ; yes, sir. I don’t think we are ready to go any faster.
Q. You have never actually, do you know how many 

Negroes there are and how many classes? A. In the EMR 
program?

Q. Yes, sir. A. No, sir.
Q. You don’t know how many Negroes would be in any 

particular class if you desegregated these classes, do you? 
A. But I could find that out, just like we got the number 
here that I gave you on that sheet of paper.

Q. How would you get these figures? A. I beg your 
pardon?

Q. How would you get these figures regarding the num­
ber of Negro children who would be in the edueatable 
mentally retarded classes, if they were desegregated im­
mediately? A. Well, all we could do is just take the num­
ber that we have today and check where they live and their 
zones, is all I know how to do it.

By the Court:

Q. What he wants, Mr. Johnston, is that the school that
—133—

you are talking about, or someone was talking about, where 
you have 65 students in it, 65 have applied to go? A. No, 
sir. Sir, this is what we call EMR classes. Those initials 
stand for educable mentally retarded children.

Thomas N. Johnston—for Defendant—Cross



86a

Those classes are held in the regular school. Say, for 
instance, we have an elementary school out here of seven 
children. We would establish maybe in that school a 
class for the EMR children, who are children who are of 
certain mentality and need special help, and we put them 
in a special room in that school.

We have 23 of those classes scattered around. Some for 
the Negro schools and some for the white schools in their 
particular school.

There is no special schools for that but it is where we 
send all white children or all Negro children.

Q. Is there any segregation in that school? A. No.
Q. I want to know if they are integrated up to the sixth 

grade, like the others? A. The EMR classes will be inte­
grated up to the sixth grade like all the others.

The Court: That is what I wanted to know.
—134—

By Mr. Williams:
Q. Mr. Johnston, doesn’t the very fact of putting in 

special classes for these children imply that they need 
special treatment? A. Well, we wouldn’t have them in 
the rooms. We felt that it would be helpful to them.

Q. Isn’t it true that maybe a child who is more gifted 
is better perhaps able to put up with this inferior quality 
of segregated education that you are furnishing than a 
child starting out with three strikes against him, a mentally 
retarded child? A. I don’t completely follow your think­
ing. State that again.

Q. You mean that the Board in its educational wisdom 
has felt that retarded children needed special teaching edu­
cation but is unwilling to recognize that perhaps these

Thomas N. Johnston—for Defendant—Cross



87a

children, even more than the other children, need within 
that special training to have a good quality, a quality of 
education which is not unconstitutional, which is not, as 
the Supreme Court has said, inherently unequal by reason 
of racial separation, that they need that even more than 
other children? A. Mr. Williams, the Board of Education 
spots these EMR classes in any school where they are 
needed provided they have got the money to do it, and

—135—
that is the fact, in the Negro schools as well as the white 
schools. These EMR children are the ones that are some­
what handicapped and move slow. If that particular white 
school happens to be a desegregated school through the 
first four grades, the EMR class in that school is also 
desegregated.

Q. All right, but an edueatable mentally retarded child 
in the sixth grade, as of this year, in that same zone who 
is also pretty low in intelligence, is in the second grade, 
can’t go to that school. He has got to go to some Negro 
school over across the street, hasn’t he? A. That is the 
way it has been up through the first four grades. I can say 
up to the sixth grade, why the EMR classes are intergrated, 
the first six grades.

The Court: Those letters, what do they stand for?
The Witness. Educable. E-d-u-c-a-b-l-e.
The Court: Where does the word come from?
The Witness: I don’t know the derivation of these 

things. It means that these children are capable of 
further education but on a different level.

The Court: What is the second letter?
The Witness: Mentally.
The Court: Mentally retarded?

Thomas N. Johnston—for Defendant—Cross



The Witness: That means that they are—just
— 136—

don’t have the mental capacity.
The Court: How long has the first word been in 

use?
The Witness: Well, sir, I don’t like the word. It 

was handed down from the state level, and maybe 
national, I don’t know. About ten years, educable.

The Court: All right.
The Witness: I did hope they would simplify this 

but I almost have to use it in my reports.
I would like for us in the field of education to 

talk in a little simpler terms, but I can’t change them 
over.

(Remarks of the Court off the record.)

By Mr. Williams:
Q. Now, Mr. Johnston, about Van Gilder school. This 

is, as you say, an experimental school, but the fact it is 
an experimental school the Board doesn’t conceive that 
as a reason for denying Negro children the right to go to 
it? A. No, we have never discussed that too much.

Q. The school is a school whereby persons with low I.Q. 
are helped to obtain occupational skills; that is correct, 
isn’t it ? A. That is right.

— 137— ■

Q. And no Negro child in the city has an opportunity to 
attend that school? A. No one has applied as yet.

Q. Well, you don’t, that is just like Fulton High School, 
Mr. Johnson. Didn’t you tell me one day that with regard 
to Fulton High School, you were in here last year and 
told us how you were crowded out there, and didn’t you

Thomas N. Johnston—for Defendant—Cross



89a

tell me you had to persuade the students to go to that school, 
that you have to fight principals of other schools who don’t 
want to let their football players go there, they talk against 
it, you have to persuade students to go to that Fulton High 
School out there, don’t you, the technical school? A. I 
don’t know, I think that is—

Q. I don’t intend to violate a confidence, Mr. Johnston, 
but I didn’t know you were telling me that in confidence. I 
thought you may recall that one day in the courtroom here 
about a couple of years ago we got to talking about the 
technical high school and you mentioned some of the prob­
lems that you were having. I don’t think you intended it 
as a confidence—some of the problems you had of getting 
students to the technical high school. A. Yes, sir, I re­
member that, and I mentioned the fact that if a school 
principal discovered a good tailback for the football team

—138—
and . the parents of the boy want to get him to stay, some­
thing might appear in the record and he might not get 
there.

Q. That is true with regard with Van Gilder school too, 
isn’t it, Mr. Johnston, you have to let the parents know what 
is available and give them an opportunity to apply and 
sometimes persuade them, which is, as you said, you went 
out and picked up this little Negro crippled child and took 
him out to Fort Sanders school, you have had to do some 
of that same sort of thing with regard to Van Gilder, haven’t 
you? A. Yes, but I don’t think we ought to advertise too 
highly something that we think is experimental and could 
fail and it could succeed, it could level off.

Q. I understand that but what I am saying, Mr. Johnston, 
is this, that the fact that you stated as a reason that no 
Negroes were admitted to Van Gilder, that no Negro had

Thomas N. Johnston—for Defendant—Cross



90a

applied, that isn’t really the reason. It is really the reason 
of the policy of segregation, isn’t it? A. I guess we would 
say that. This school is on the level of the junior high 
school. We are not up there yet.

Q. But there is no comparable junior high school in the 
city for Negroes? A. Not like that, but we have discussed 
it and it is of record in this court that sometime back when

—139—
we were talking about this that we were hopeful that we 
would have sufficient funds or could start a similar program 
if this proved successful.

Q. Well, now, Mr. Johnston, you haven’t started it. There 
is really no reason why Negro pupils, on a first come first 
served basis, talking about the waiting list, but you haven’t 
admitting Negroes, so there is no reason why beginning 
with the next term that school should not be opened to 
Negroes on a first come first served basis, you haven’t got 
but 65 students involved in the whole situation, have you, 
some 65 and you say you have room probably for approxi­
mately five more, then you don’t anticipate any great in­
flux of Negro students in that situation, do you? A. Well, 
what you asked me, if I anticipate, I  haven’t given that 
much thought to anticipate something, but I would like to 
point out that the principals of these Negro schools, they 
know all about this level of work and they attend School 
Board meetings, and many citizens attend School Board 
meetings and heard this discussed, and Avhy don’t we have 
requests for admittance on the part of Negro students.

Q. Do you always have requests for admittance for every 
white child that you have out there? A. Not necessarily, 
but you would be surprised that when we started this school 
we thought we would have to ask to encourage white stu-

—140-
dents and the parents to let them go to this school so we

Thomas N. Johnston—for Defendant—Cross



91a

could find out whether or not we could help these people, 
and it just reversed it.

We have more students than we can take care of.
Q. I  want to ask you a heart to heart question. You re­

member back on account of this case you talked about the 
achievement level of Negroes being somewhat lower than 
whites according to tests you had given in the school system, 
and Mr. Fowler asked you why, and you said maybe it was 
because we have given the I.Q. tests and the I.Q. tests are 
lower, and you said “I don’t want to express an opinion but 
that is a fact.” You remember that, Mr. Johnston? A. I 
think so; yes, sir.

Q. And you gave that as a reason for not letting the 
Negro children go to school with the white children? A. 
Mr. Williams, if you look at the record I did not bring 
that up. You brought that up. I did not want to even 
mention it, and I don’t know if I said that was the reason.

Q. Well, wasn’t that one of the reasons that you gave in 
support of your plan of delay for desegregation and in sup­
port of a twelve year plan wasn’t because of the reason that

—141—
you gave that the achievement level was lower and that 
you did not want large numbers of Negroes to be thrown in 
with the whites? A. I pointed that out only when I was 
asked. I did not volunteer it.

Q. That wasn’t a reason for delay, in your opinion? A. 
A. Well, at the time I may have given it as reason for delay. 
I don’t know.

Q. Then I want to ask you the heart to heart question, 
why did you then take that position and still at the same 
time take the position that the only experimental school 
of the city where a child of low I.Q. could help himself 
you don’t want to give the Negro children of that age now

Thomas N. Johnston—for Defendant—Cross



92a

a chance to even try it if they have low I.Q.’s? A. We just 
haven’t had the request for the program.

Q. You haven’t had the request for the program. But 
the Board is affirmatively interested in the best interest 
of the white children in the city, isn’t it, but the Negro child 
has to come and request something that is good for it? A. 
No. Our plan now is in the sixth grade and when it moves 
along, particularly into the seventh, Van Gilder occupa­
tional training center on that level will be desegregated like

- 1 4 2 -
all the rest.

Q. But what about the low Negro children of low I.Q. who 
are in the seventh, eighth and ninth grades now, they just 
go on with the low I.Q.’s? A. Well, what—there is nothing 
we could do about that. The white children are the same 
way. We set up the EMR classes for the white children 
and SMR classes for the Negro children.

Q. This Van Gilder school though is the thing, is an edu­
cational opportunity and a substantial one which is being 
offered to white children and from which Negro children 
are being entirely excluded from under this plan? A. That 
is right.

By the Court:

Q. That is the only kind of a class in existence in the 
school system from which Negro children are being ex­
cluded? A. As far as I know that is because it is—

Q. That is on an experimental basis? A. Yes, sir.
Q. Well, something will have to be done about that, you 

realize that. A. Next year, of course, we would be, or 
the year following, we would be on their level and we could 
then desegregate the following year.

Thomas N. Johnston—for Defendant—Cross



93a

Thomas N. Johnston—for Defendant—Cross

—143—
Q. The following year! A. Yes, sir, since that now 

children over there are on the junior high school level, 
which is our level of the seventh, eighth and ninth grades, 
and if we go into the sixth grade this next year, in the fol­
lowing year Van Gilder would be at the seventh grade level 
desegregated.

Q. I don’t quite understand you. I understand this segre­
gation of classes is up to the sixth grade level, or will be 
this fall, with exception of these EMR, am I right about 
that? A. Yes, sir.

Q. Well, now, are they in the Van Gilder building? A. 
Some of them are. Some they have taken out of the 
school who are not on this first sixth grade level. They 
are on the junior high school level.

Q, Why haven’t they been desegregated just like the 
other classes up to the sixth grade level, that is what I 
am trying to find out. A. These EMR?

Q. Yes. A. They have been. The first four grades at 
any school, at any white school.

Q. If they have been then that is all right, but I under­
stood from counsel’s question that you had classes where

—144-
Negroes could not get in. A. No. If at Belle House school 
which—they have been designated for this, the third year, 
if we had a little EMR class down there it would be desegre­
gated too.

Q. Well, is there any kind of a class in any kind of a 
group in the Knoxville school system that has not been 
desegregated up to the sixth grade level or will not be 
desegregated in the fall term up to the sixth grade level? 
A. No, sir, not to my knowledge; no, sir.



94a

The Court: All right. I got the impression there 
was with these last questions and answers.

By Mr. Williams:
Q. I think maybe the Court misunderstood this. What the 

Court does not understand, that this Van Gilder school is an 
educational opportunity for handicapped children, white 
children of low I.Q., which is for the white children of low 
I.Q., but from which all Negroes of low I.Q.’s now in junior 
high school are excluded. A. That is right, on the junior 
high school level and we are not to that point yet.

Q. Yes, sir, but it is similar to what Fulton High School 
was before the Court ordered you to submit a plan over 
there, it is similar to the technical courses over there where 
you were offering them for white children with no facility

—145—
at all afforded for Negroes. A. Well, it is similar but 
there is an exception, this was an experimental program 
which we were trying to—

Q. But it has been going on three years. How old is 
that experimental program? A. Three years.

Q. How old is Fulton High School? A. It was opened 
in ’51.

By the Court:
Q. Does the Negro school have any kind of program? 

A. It doesn’t have a program similar to the Van Gilder 
occupational training center; no, sir.

Q. We are going to have to get to that just like you did 
—we might as well face up to it, that is what these opinions 
hold. A. That school is on the—it takes children at the

Thomas N. Johnston—for Defendant—Cross



95a

junior high school level starting with about the seventh 
grade.

Q. I see, but you have mentioned a class there that you 
keep your colored people out just like you did Fulton. The 
Court of Appeals says that can’t stand. We have to fol­
low that.

We might as well right now prepare to make your classes 
available to these colored people who are in that class

—146—
because that is analogous, as I see it, to Fulton. They have 
to have access to this class because they don’t have access 
to it in the colored schools, and so this plan will have to 
be amended in that respect so as to meet that situation. A. 
Yes, sir.

By Mr. Williams:

Q. Now isn’t it true that the same thing is true with 
respect to the distributive education, the course of train­
ing which is offered to both junior and senior high school 
students who are white and is also offered to white adult 
citizens by the Board of Education at the Knoxville High 
School but none of this is available to Negroes, either 
junior or senior high schools or adult Negroes? A. But it 
can be made available at Austin High School on the adult 
level and on the senior high school level if there are suffi­
cient number of people interested.

Q. Mr. Johnston, when you say if there are a sufficient 
number of people interested, then that puts the burden on 
the individual child to come to the Board and say set up a 
course over here since there is a course already existing 
over there at the white high school; that is true, isn’t it?

—147—
A. If there is an opportunity, if there is a need for it that

Thomas N. Johnston—for Defendant—Cross



96a

could be very readily determined by a survey and then 
if there is sufficient interest on the part of the people, of 
these children, it could be set up.

Q. Why is it necessary to make a survey to determine 
whether Negro children want something that before you 
afford them an opportunity to participate in what you are 
already offering those white people, Mr. Johnston? A. 
We are talking about distributive education—

Q. Yes, sir. A. —and there must be opportunities for 
this co-operative training which involves employers, and 
if there is no opportunity then we would be in very bad 
shape going out and organizing a class when there is no 
opportunity for employment.

Q. Well, you are still talking about in terms of organiz­
ing a segregated class, and I am asking you if it isn’t true 
that the School Board co-operates with business interests 
and obtains some of these sales opportunities for its stu­
dents who apply for that type of education? A. We have 
teachers who co-operate with these people and there are a 
certain number of stores who co-operate in the program 
and have for years and years.

Q. In other words, if a white student, a white junior or
—148—

high school student wants to go into distributive education 
he signs up for the course. He doesn’t go out and find him­
self an employer first, does he, Mr. Johnston? A. No, that 
is done by the co-ordinator of the program.

Q. Yes, sir, so that the student signs up for a course 
and your co-ordinator or a teacher finds the employer who 
will employ him so that he can obtain this educational skill.

Now what does this have to do with your requiring a 
Negro student to come in and persuade you that there is a 
need in a Negro community for distributive education be­

Thomas N. Johnston—for Defendant—Cross



97a

cause you just offer the course to white students and let 
them elect it, don’t you? A. Yes, but if there is not an 
opportunity for the person to be employed it would be 
ridiculous for us to even offer the course.

Q. What you are saying is that the Board assumes that 
Miller’s store will not and should not employ Negroes as 
sales clerks so that for that reason you won’t offer, you 
won’t give Negroes access to this type of education? A. 
Well, now, that is the way it has been up until recently 
about these employment opportunities. You admitted a few 
minutes ago that was only recently, I believe. It may be

—149—
that we can set up a distributive education program in the 
Negro high school because there are now employment op­
portunities.

Q. Will you please explain how the co-ordinator can 
explain to Miller’s store how they should employ Negroes 
in a desegregated business, how that co-ordinator can ex­
plain the Negro is in a segregated class and he is not go­
ing to come in contact with white people that he is going to 
come in contact with at the store, how he is going to get 
distributive education with a segregated Negro class and 
probably a Negro teacher who he knows couldn’t get a job 
at Miller’s? A. The distributive education is a co-opera­
tive program. The actual experience takes place where the 
person is employed at and is where he would meet these 
people you are talking about, different types of people in 
his practical experience for which he gets credit.

I don’t think our Board can hope to establish a D. E. 
program exactly like we have at the other schools for the 
Negro high school, and then as our program advances over 
the years and we completely desegregate then we will change 
it altogether.

Thomas N. Johnston—for Defendant—Cross



98a

Q. The Board would have to employ teachers for this, 
wouldn’t it, have to employ a co-ordinator for it? A. That 
all depends. It all depends on the number of people in-

—150—
volved.

Q. Or a Negro child can find enough people to set up a 
class, is that right? A. Not necessarily.

Q. Well, as— A. These people know about this pro­
gram. We don’t have to go out and make a great to do about 
it. They know about this and if they are interested in it 
they can let us know through the school principals and the 
Parent-Teachers where it is discussed, and there is a 
teacher in the distributive education co-op program, a 
teacher co-ordinator. We do the whole job.

Q. Mr. Johnston, suppose a Negro child cannot find 
other Negro children to participate in a class, then where 
is he? A. We don’t mean to imply, if I have, I would 
like to correct it, that a child should go out and get other 
children interested in the program.

We are talking about the school principals in these vari­
ous communities, they know the program that we have, 
and all they have to do when they are inventorying or 
getting ready for the next year, is to let it be known they 
can have this if there is a sufficient number of people 
that want it and employment opportunities.

Q. As far as a Negro child is concerned, there are dis-
—151—-

tributive education courses in existence at every white 
high school. The Negro child has got to have a principal 
make a survey and has got to show there are enough peo­
ple at the segregated high school before the Board will 
offer him distributive education? A. It isn’t necessarily 
that. We have made surveys before in trying to determine

Thomas N. Johnston—for Defendant—Cross



99a

job opportunities to set up programs. Our staff will fully 
cooperate with them in making surveys and letting them 
know what is possible.

Q. Well, let’s suppose it isn’t possible and there is just 
one Negro child at Austin who wants distributive educa­
tion. Now under your present policy that one cannot be 
admitted to any high school, can he, a distributive education 
class! A. Under the present policy, that is correct.

Q. So that then under your present policy a Negro is 
completely excluded from distributive education as it exists 
in your system today? A. It isn’t entirely cut out of the 
opportunity if he wants it.

Q. What you are saying is that you think that if two 
or three Negroes ask for it, if a Negro asks for this you 
think you might make a survey, and you think if that survey 
could locate enough people to constitute a class that then 
your Board might authorize you to set up a segregated

- 1 5 2 -
class at Austin High School; is that essentially what you 
are saying? A. That is a little extreme but the Board 
of Education and the city schools administrative staff would 
cooperate fully to help these peojole if they were interested.

Q. Mr. Johnston, if the junior and senior high schools 
of Knoxville, that is all of them, were desegregated as of 
September of 1963, how many Negro children would be 
involved? A. I don’t have any idea at the moment.

Q. You do not have any statistics presently compiled in 
your office which would show that ? A. No.

Q. How many white children would be involved? A. I 
do not know.

Q. How many schools would be involved? Do you have 
any statistics in your office regarding that? A. The num­
ber of schools?

Thomas N. Johnston—for Defendant—Cross



100a

Q. The number of schools which would be involved with 
desegregation if complete racial non-zoning, no racial zon- 
ings were adopted throughout the school system in Septem­
ber? A. Be 41.

Q. You are saying all of the school system, all the schools 
would be involved, Mr. Johnston. Do you have that statis-

—153—
tically documented? A. You asked me the number of 
schools that would be involved if we had complete desegre­
gation.

Q. Yes, the number of schools that would be involved 
with having desegregated classes in them, Mr. Johnston. 
A. I do not know whether it would affect every single one of 
the 41 schools or not, because I don’t have the statistics 
as to where these children live or whether there are 
Negroes in all of these zones of the 41 schools.

Q. And you don’t have this with regard to the junior and 
senior high schools even? A. Not at the moment.

Q. Mr. Johnston, have you had any teachers workshops 
on desegregation? A. We have.

Q. Where and when? A. Not recently.
Q. When is the last time you had a teachers workshop 

on desegregation? A. I don’t remember the date but it 
was the year before we went into this program.

Q. The year before when? A. During the school year 
before we introduced the grade-a-year plan.

— 154—

Q. Before you introduced the grade-a-year plan? A. 
Yes.

Q. This was the last time you had any teachers work­
shop on this procedure? A. A real organized teachers 
workshop. We have had conferences. I have met with 
faculties.

Thomas N. Johnston—for Defendant—Cross



101a

Q. You have had some informal conferences on the sub­
ject? A. Yes, and met with whole faculties at the schools 
since then.

The Court: How many more questions do you have 
of this man?

Mr. Williams: I would say just about three or 
five more minutes.

By Mr. Williams:

Q. Mr. Johnston, do you have your zones laid out for 
non-racial zoning of junior high schools, junior and senior 
high schools? A. Already laid out?

Q. Do you have a zone laid out? A. No, sir. We have 
it laid out for the elementary schools.

Q. Three years and you haven’t made any future plan 
or work on this experience of desegregation, do you, you 
haven’t even started working on the zones? A. I don’t see

—155—
any point in going and doing work that isn’t valuable. You 
go out and do work, work these zones up, and people move 
constantly.

Thirty-five percent of them move. You have got to go 
back and work it again. I  told you the figures, I mean, 
the ones here are approximate. The only way you can get 
it accurate is knock on these people’s doors and you do 
it this week and it changes the next. You have to go back 
around.

I don’t see any point in going out and zoning for all of 
our junior high schools and senior high schools when we 
know that they are going to have to be changed constantly.

Q. You haven’t had any, you haven’t mentioned teacher 
problems. You haven’t had any problem with respect to

Thomas N. Johnston—for Defendant—Cross



102a

teachers since desegregating the schools, have you? A. 
I wouldn’t—no major problems. We have had no difficulties.

Q. Well, your teachers have adjusted all right though. 
You have had a happy situation? A. I wouldn’t say happy 
with enthusiasm but they have acted like our community 
has accepted it, some cases reluctantly.

Q. Are you talking about the white teachers reluctantly
—156—

accept Negro children? A. What else is involved there. 
It is a new situation to them. We had an applicant that 
was recommended to the Board that she be elected, and 
she was elected, and she found out the school was desegre­
gated and she resigned.

Q. You have hundreds of good applicants, haven’t you, 
to fill her place? A. I say that is just one case.

Q. That is not of tremendous importance, is it? A. It 
is indicative of a little—

Q. Sir? A. It is slightly indicative of one case. It could 
be multiplied.

Q. You mean, well, you have no evidence that it would 
be multiplied, do you? A. No, I don’t have.

Q. When did that occur, what year did that occur? A. 
Last year, I think; last year.

Q. You still have plenty of well qualified applicants whom 
you consider well qualified for teaching positions whom 
you have not hired, don’t you? A. In better shape than 
usual. I wouldn’t say we have a great number of well 
qualified people but we have a pretty good supply.

Q. You have more than you have vacancies? A. Yes,

I guess so.

Thomas N. Johnston—for Defendant—Cross

—157—

Mr. Williams: That is all.



103a

Redirect Examination by Mr. Fowler:
Q. As to this Van Gilder program, one question, ap­

parently you are crowded to capacity and it is an ex­
perimental program and you say you have to check up 
each year to see that the funds are available. Will there 
be any tendency to collapse that program or to terminate 
it by desegregating it, adding a lot more to it?

Mr. Williams: I object to that. That calls for a 
conclusion on his part.

Mr. Fowler: That is what the Board operates on, 
Mr. Williams, conclusions.

Mr. Williams: This Court can’t operate on con­
clusions unsupported by objective facts, if your 
Honor please.

The Court: If he knows he may answer.
The Witness: I am sorry, I  didn’t understand the 

question.

By Mr. Fowler:

Q. As I understand it, you are not sure each fall you 
are going to get funds for your Van Gilder program. 
There is no school income other than from your ordinary

—158-
School Board? A. We are carrying it now in our regular 
operating budget but we have not been able to expand it, 
and we depend on the funds from the state to a great 
extent to help us operate that school.

Now, I have to operate, of course, with a small number 
of students for the teachers, that is what makes it ex­
pensive, and it is a question of how long we can operate 
there in an expensive school like that with funds that 
we get in our budget from city council.

Thomas N. Johnston—for Defendant—Redirect



104a

Q. Will you have to provide additional space? A. Yes, 
sir.

* # * * #
—159—

Recross Examination by Mr. Williams:
Q. You always have trouble getting money out of city 

council, don’t you; you never get as much as you want, 
do you? A. No, we never get as much as we need.

Q. You never get as much as you ask for? A. One 
occasion.

Thomas N. Johnston—for Defendant—Recross

The Court: Gentlemen, you need not go into that. 
I am satisfied that that class is going to continue 
and it should be made available so these colored 
people can go there, and that is the effect of the 
Sixth Circuit and that is the holding that will be 
carried out in this court. That is all I care to hear 
on that.

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SOUTH HIGH .........................1 * 0 6 *  ............ _.... „ , 1 * ,  „ ___
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?1»335TOTALS 16,121



105a

E xh ib it 1



106a

E xhibit 2

(See opposite) 83?°



Number o f Negro p u p ils  e l i g i b l e  to  a t te n d  s o -c a l le d  
White school*  (o f  th e  m a jo rity  ra c e )

'Y
£ / 155

3. Number of Negro p u p ils  a c tu a l ly  a t te n d in g  s o -c a l le d  
White sch o o ls

°  ' £■ ' t
■ £

90

H. Number of White p u p ils  e l i g ib l e  to  a t te n d  to - c a l le d  
Negro sch o o ls

K
—* C

p •I-

£
/  o- . o 359

5. Number o f White p u p ils  ac t  1ly  a t te n d in g  s o -c a lle d
£

Q
V.' /  ° *

Negro schoo ls • ~r K !  f < 0
■v, * / *  /

6 . Number of White p u p ils  being  t r a n s p o r te d  from t h e i r •J
r e s id e n t i a l  zone to  a sch o o l ou t s id e  of t h e i r  
r e s i d e n t i a l  zone. c 13

(b ) From which r e s i d e n t i a l  zone to  which s c h o o ls :

(c )  D istance  t r a v e l le d ?

(d )  Who b e a rs  th e  c o s t  o f t r a n s p o r ta t io n ?

(a )  What i s  th e  m onth lycoet of s a id  t r a n s p o r ta t io n .

7 . I f  any Negro p u p ils  a re  be in g  tra n s p o r te d  as  a f o r e s a id ,  
p le a se  g ive  th e  number and answ ers to  com parable (b )
( c )  (d )  and ( e )  above in  No. 6,

(b ) From which r e s i d e n t i a l  zone to  which sch o o ls?

r ram Mountain View zone to  Park 
uowry S chool,

A pproxim ately 7 m ile s .

P a tro n s  and Board o f E du ca tio n .

For month o f February -  $300,00
P atro n s $53.00
Board o f E ducation  $2N7.00

(c )  D istance  t r a v e l le d ?

(d ) Who b e a rs  th e  c o s t  of t r a n s p o r ta t io n ,

( e )  What i s  th e  monthly c o a t of  s a id  t r a n s p o r ta t io n ?

9 . Why a re  any p u p ils  tra n s p o r te d  to  sch o o ls  out s id e  of 
t h e i r  r e s id e n t i a l  zones?

From Edgewood and New Hope zones 
to  Green and Maynard School* .

To Maynard and Green

Board of E d uca tion ,

$W50.QQ p e r month

9. How many school*  w i l l  be o p e ra ted  f o r  the  Summer Term? 3

(a )  When does th e  Summer Term b e g i n  a n d  end? From June 10, to  Aug. 2 , 1963.

(b )  Which School*? Tyson J r , ,  Wait H igh, K noxv ille  
Evening High School* .

(c )  What i*  th e  e n ro llm en t f o r  each schoo l?  Tys

(d )  Are Negro p u p il*  e l i g i b l e  to  a t te n d ?  I f  n o t ,  why?

611, Evening-28N.



107a



108a

Further R eport o f  Board o f  Education o f  the  
City o f  K n oxville

Isr the U nited States District Court for the 
E astern District of T ennessee

Northern D ivision

Civil Action No. 3985

[ same title]

On behalf of the defendant Board of Education of the 
City of Knoxville, it is reported that at a meeting of said 
Board duly held on April 1, 1963, Resolution was duly 
moved, seconded and adopted by unanimous vote of the 
four (4) Members of the Board who were present, and 
who constituted a quorum, namely: Mr. Burkhart, Mr. 
Linville, Mr. Ray and Mr. Shaffer.

Mr. Ray made a motion that the Board of Education 
as of today desegregate the summer Junior and Senior 
day-time high schools to be held at Tyson, Jr., High School 
and West High School, beginning June, 1963, and anyone 
may attend these schools strictly on the basis of his or 
her record and qualifications without regard to race, upon 
payment of the regular fees.

The motion was seconded by Mr. Linville and passed 
unanimously.



109a

I n the U nited States District Court fob the 
E astern District of T ennessee

Northern Division

Civil Action No. 3984

Judgment

[same title]

This cause came on to be heard further, without the 
intervention of a jury, on April 1, 1963 upon the amend­
ment to plan of desegregation filed by defendant Knoxville 
Board of Education on August 14, 1962, the specifications 
of objections thereto filed by the plaintiffs on September 
18, 1962, as later amended, upon the reply of the defendant 
Knoxville Board of Education to the specifications of ob­
jections to the amended plan, upon the action of the Board 
of Education of the City of Knoxville in further amending 
the plan to provide for the desegregation of the fifth and 
sixth grades beginning in September, 1963, which action 
was taken on March 11, 1963, upon the further specifica­
tions of objections to the second amended plan, which 
specifications were filed by the plaintiffs on March 28, 1963, 
and upon the report of further action taken by the Board 
of Education of the City of Knoxville on April 1, 1963, by 
which the summer junior and senior daytime high schools 
to be held at Tyson Junior High School and West High 
School, beginning June, 1963, were desegregated and upon 
the entire record to this date including evidence introduced 
on April 1, 1962, and upon argument of counsel pursuant 
to which the court on April 1, 1963 delivered its memoran­
dum opinion, all of which are incorporated herein by refer­
ence.



110a

It is therefore ordered, adjudged and decreed as follows:
1. That the amendments to the plan of desegregation 

adopted and filed herein by the Board of Education of the 
City of Knoxville by which desegregation of the schools 
was speeded by desegregating grades three and four be­
ginning in the fall of 1962 and grades five and six begin­
ning in the fall of the year 1963, which amendments were 
filed with this court on August 14, 1962 and March 16, 
1963, respectively, constitute compliance with the opinion 
of the Court of Appeals, Sixth Circuit, in this cause ren­
dered April 3, 1962, and mandate issued thereon and also, 
except as indicated in Paragraph 2(a) below, with the 
opinion of the Court of Appeals announced July 6, 1962, 
and mandate issued thereon. The said Board of Educa­
tion is hereby ordered to put said plan as amended into 
effect, including the desegregation of the summer high 
schools as reported to the court on April 1, 1963.

2. At or before May 15, 1963 the Board of Education of 
the City of Knoxville shall take further action, and imme­
diately report the same to this court, as follows:

(a) Action effecting such change in administration and 
transfer procedures in the Fulton Vocational and Techni­
cal Plan as shall make said plan fully conform to the opin­
ion of the Court of Appeals, Sixth Circuit announced on 
July 6, 1962, and mandate issued thereon;

(b) The Board shall effectuate such enlargement or 
change in its administration of that portion of its educa­
tional program known as the Vangilder Program, designed 
to aid slow learners of high school age, so as to provide 
equal and like courses of training at Austin or other Negro 
high school for the Negro pupils, or if such not be pro­

Judgment



111a

vided, so as to admit pupils to the school teaching and 
facilities in this program without regard to race; and

(c) Likewise the distributive education courses now pro­
vided by the Board must be balanced by the setting up of a 
course teaching the same subjects and providing the same 
educational training at Austin or other Negro high school, 
or failing the establishment of such course, the said course 
at Fulton High School or, if there is no room there for 
additional pupils, the said course at another school to be 
selected after consideration by the Board, shall be de­
segregated and pupils admitted thereto without regard to 
race.

(d) That the jurisdiction of the action is retained during 
period of transition.

To all of the foregoing action of the court except Para­
graph 2(d), the plaintiffs except.

Judgment

R obert L. T aylor 
United States District Judge

Approved as to F orm :

Carl A. Cowan 
Attorney for Plaintiffs

S. F rank F owler 
Attorney for Defendants

Entered 4/4/63



112a

I n the U nited States D istrict Court for the 
E astern District of T ennessee

Northern D ivision

Civil Action No. 3984

Opinion by Robert L. Taylor, U.S.D.J.

[ same title]

Opinion as Rendered F rom the Bench

This case is before the Court on the amended plan of 
desegregation or integration submitted by the Board of 
Education of Knoxville pursuant to the mandate of the 
Court of Appeals which was issued in pursuance of the 
opinion filed by that Court on April 3, 1962 and written 
by Chief Judge Cecil.

In that opinion which has been mentioned, the Court 
stated in pertinent part as follows:

“We modify the judgment of the District Court 
insofar as it approved the board’s plan for continued 
segregation of all grades not reached for its grade-a- 
year plan. It is not the function of this Court to formu­
late or dictate to the board a plan for the operation of 
the Knoxville schools. It is, likewise, not our intention 
to require immediate total desegregation. We do be­
lieve, however, that more grades than contemplated 
by the board’s plan should now be desegregated. In 
the light of the board’s experience with the present 
plan, it should be enabled to submit an amended plan 
that will accelerate desegregation and more nearly 
comply with the mandate of the Supreme Court for



113a

‘good faith compliance at the earliest practicable 
date’.”

The amended plan provides for the desegregation of the 
fifth and sixth grades beginning at the fall term of the 
schools of this year, 1963.

It is the contention of the plaintiffs that this plan does 
not reflect good faith compliance at the earliest possible 
date as ordered by the Supreme Court of the United States 
in the Brown decision.

The School Board of Knoxville insists that it has acted 
in good faith in an effort to comply with the mandate of 
the Court of Appeals as well as the decision of the Supreme 
Court of the United States in the Brown case.

There is testimony to the effect that the School Board 
is three years ahead of the original grade-a-year plan, 
or will be three years ahead of that plan in the fall 1963 
when grades five and six are desegregated.

The primary question for the decision of this Court today 
is whether the plan for desegregation of the fifth and sixth 
grades in the fall of 1963 constitutes a good faith accelera­
tion of desegregation in the Knoxville schools.

Doctor Burkhart, Chairman of the School Board, and Mr. 
T. N. Johnston, Superintendent of the Knoxville Schools, 
are of the opinion that two additional grades, the fifth 
and sixth, are as many as should be desegregated at this 
date. Mr. Johnston has pointed out briefly some of the ad­
ministrative problems which the Board has faced because 
of desegregation of the schools on a. grade a year basis. 
He did not go into a detailed discussion of these problems 
for the reason that he was of the opinion that it is better 
for the children of both races and the public generally 
that those matters not be discussed in public.

Opinion by Robert L. Taylor, U.S.D.J.



114a

This Court, in a 21-page opinion filed on August 19, 1960, 
reported in 186 F. Supp. 559, discussed in detail the situa­
tion here in Knoxville with respect to public schools.

In that opinion the testimony of witnesses, Dr. Burkhart, 
Moffett, Johnson, Johnston, Marable, and possibly others, 
was analyzed and discussed, and the Court stated, among 
other things:

“This Court is of the opinion and finds that the 
foregoing evidence shows beyond question good faith 
on the part of the Board in making an honest effort to 
find the solution of a very troublesome problem, namely, 
a plan of desegregation that would best fit the needs 
of the Knoxville area and at the same time implement 
the decision of the Supreme Court in the Brown case. 
The teaching of that case, as well as that of the cases 
of Cooper v. Aaron, supra, and Kelley v. Board of 
Education, 6 Cir., 270 F. 2d. 209, is that the problem 
of desegregation must be solved in accordance with 
the exigencies of the case and that the interest of the 
school children of both races, the interest of the school 
personnel and of the community involved are the prime 
factors in resolving the issue; that local school prob­
lems differ and what would be a reasonable time to 
integrate in one community might be unreasonable in 
another community; that the question of speed is to 
be decided with respect to existing local conditions; 
that the operation of the public schools is the busi­
ness of the local School Board and that the courts 
should not interfere with such operation unless it is 
necessary for the enforcement of constitutional rights; 
and that the Court should not substitute its judgment 
for that of the local School Board in the promulgation 
of plans of desegregation and that if the Board has

Opinion by Robert L. Taylor, U.S.D.J.



115a

acted in good faith its action should not be set aside 
so long as such action is consistent with the eventual 
establishment of a non-discriminatory school system at 
the earliest possible date consistent with the interest 
of the school children, school personnel and the com­
munity.”

In the opinion of the Court the plan to desegregate the 
fifth and sixth grades at this stage does comply with the 
mandate of the Court of Appeals. This Court approves the 
amended plan of desegregation in this respect.

Another phase of the case must be mentioned. This phase 
relates to the Fulton school. The original plan of desegre­
gation was approved by this Court in the opinion quoted 
from, except that the Board was directed to submit a plan 
that would take care of the colored students when desired 
vocational work was not offered at the Austin High School. 
Thereafter the Board submitted a plan which was approved 
by this Court. The plaintiffs excepted to that plan and an 
additional appeal was taken to the Court of Appeals. That 
Court, in another opinion written by Chief Judge Cecil 
and filed on July 6, 1962, approved the action of this Court 
with one exception and that was the transfer policy fol­
lowed by the Board.

In that connection, the Court said:
“We are of the opinion that this transfer plan is 

too detailed and too complicated and offers too much 
opportunity for a transfer to be stopped either by the 
transferring principal or by the receiving principal. 
The appeal to the superintendent and then to the 
board would be time consuming and with little practical 
relief to the rejected student. Should he win this ap­
peal, he would be hopelessly behind the class he wished

Opinion by Robert L. Taylor, U.S.D.J,



116a

to join. If a student meets the qualifications for a 
course not given in the school in which he is regis­
tered he should he transferred as a matter of right.”

The Court remanded that phase of the case to this Court 
in this language:

“We remand the case to the District Judge with in­
structions to retain jurisdiction and to require an 
amendment that will permit all students to transfer 
as a matter of right, when they qualify for the courses 
which they desire to take in another one of the two 
high schools here involved and such course is not avail­
able to them in the school they are attending.”

It is the order of this Court that the Board, within a 
reasonable time, file an amended plan with respect to the 
Fulton High School showing that it has complied with the 
mandate of the Court of Appeals as set forth in the lan­
guage just quoted.

One other phase of the case is to be briefly mentioned. 
It appears from the proof in this case that the School 
Board is operating upon an experimental basis a school 
for mentally retarded children which has been referred to 
in the testimony as the EMB classes. When these letters 
are translated they mean “educable mentally retarded” 
children.

The proof is to the effect that such classes are not avail­
able at the Austin High School or any other Negro school. 
To this extent it is a discrimination against the Negro stu­
dents who need this training.

It is the order of the Court that classes for these children 
comparable to those which are now being operated in the 
white schools and not in the Austin school or other Negro

Opinion by Robert L. Taylor, U.S.D.J.



117a

schools be made available and that the colored children who 
qualify be admitted to such classes if and when they apply. 

In all other respects the amended plan is approved. 
Classes will be made available for the distributive educa­

tion colored students within a reasonable time, either at the 
white schools where they are held or at Negro schools where 
provision will be made for such.

The original opinion stands as amended by the Court of 
Appeals in the mandate.

Counsel will prepare and present an order in conformity 
with the views expressed herein.

Opinion by Robert L. Taylor, U.8.D.J.

R obert L. T aylor 
United States District Judge



118a

N otice o f  A ppeal

I n the District Court of the United States for the 
E astern D istrict of Tennessee

Northern Division

Civil Action No. 3984

[ same t it l e ]

Notice is hereby given that the plaintiffs, hereby appeal 
to the United States Circuit Court of Appeals for the Sixth 
Circuit from the Judgment entered in this action on the 
4th day of April, 1963.

Carl A. Cowan 
2212 Vine Avenue, S. E.

Knoxville 15, Tennessee

Z. Alexander L ooby and 
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville, Tennessee

J ack Greenberg and 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs-Appellants.



119a

R eport o f  Changes in  D esegregation  P lan  Made by  
the Board o f  E ducation  in  R esponse to  O rder o f  

A pril 4 , 1 9 6 3

I n the District Court of the U nited States for the 
E astern District of Tennessee

Northern Division

Civil Action No. 3984

[same title]

In response to order or decree of this court entered here­
in on April 4, 1963, on behalf of the Board of Education 
of the City of Knoxville, it is reported that the entitled 
paper “Proposed Action to Meet District Court’s Decree on 
Desegregation” was actually adopted and put into effect 
by the Board of Education of the City of Knoxville in 
regular meeting on Monday, May 13, 1963. The attached 
statement of the changes pertains to the Fulton High School 
Transfer Plan, the Vangilder Occupational Training Cen­
ter, and the Distributive Education Program.

This May 14, 1963.

Attorney for Defendant Board of 
Education of the City of 

Knoxville



120a

P roposed  A ction  to M eet D istrict Court’s D ecree  
on D esegregation

1. F ulton H igh School Transfer P lan. Amend the pres­
ent transfer policy between Austin High School and Fulton 
High School to read as follows:

All students enrolling in any vocational course are re­
quired by state authorities to meet the qualifications set 
out in the State Plan for Vocational Training.

Qualified students desiring vocational training not of­
fered in their own school may transfer to Fulton High 
School or to Austin High School to obtain such training 
without regard to race. Qualified students will be accepted 
in the order in which they apply without regard to race.

Transfers will be expedited without regard to race 
through the Child Personnel and Attendance Department 
following the usual accounting procedures which are fol­
lowed in all transfers between city schools.

The following procedure is required:
a. Application for transfer will be made prior to the 

end of the school year preceding the actual trans­
fer so that contractual arrangements can be made 
with the State Department of Vocational Educa­
tion before the next term begins.

Applications made later than as above required 
will be given special consideration and granted if 
practicable.

b. For accounting purposes three copies of the trans­
fer request shall be filled out and signed by the 
applying student and one of which shall also be 
signed by the parent or guardian.



121a

Proposed Action to Meet District Court’s Decree on 
Desegregation

c. The Child Personnel Office shall supply the receiv­
ing school with the record of the student and the 
transfer notice as soon as possible after the close 
of the school year.

2. Van Gilder Occupational T raining Center. Expand 
the Van Gilder Occupational Training Program to provide 
for additional qualified students without regard to race— 
effective September 1963.

3. Distributive E ducation. Establish a Distributive Edu­
cation Program at Austin High School effective September 
1963, with Mr. J. 0. Harper as instructor or some other in­
structor who would be approved by the State Department 
of Education.