Calhoun v. Latimer Petitioners' Response to the Respondents' Memorandum of Facts

    Supreme (tart of tljr luitrii States
October T erm, 1963 

No. 623

F red S. Calh o u n , et al., 

A . C. L atim er , et al.,

Petitioners,

Respondents.

OH W R IT  OE CERTIORARI TO T H E  U N ITED  STATES COURT OF APPEALS 
FOR T H E  F IF T H  CIRCU IT

PETITIONERS’ RESPONSE TO THE RESPONDENTS’ 
MEMORANDUM OF FACTS

C onstance B aker  M otley 
J ack G reenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N.E. 
Atlanta, Georgia

D onald L. H ollo well
Cannolene Building (Annex) 
859i/2 Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Petitioners
N orman C. A maker 
A. T. W alden 
J. L eV onne Chambers 
M elvyn  Z arr

Of Counsel



In the

Sktpmnr (tart of thr Hmtrft
O ctober T erm , 1963

No. 623

F red S. Calh o u n , et al.,
Petitioners,

A. C. L atim er , et al.,
Respondents.

ON W R IT  OE CERTIORARI TO T H E  U N ITED  STATES COURT OF APPEALS 
FOR T H E  F IF T H  CIRCUIT

PETITIONERS’ RESPONSE TO THE RESPONDENTS’ 
MEMORANDUM OF FACTS

Atlanta’ s Most Recent Plan o f Desegregation

Atlanta’s most recent school desegregation plan was 
adopted on April 8, 1964, after oral argument herein which 
took place March 31, 1964.

April 8, the Atlanta Board of Education adopted a reso­
lution (Respondents’ Memorandum, pp. 8-10) setting forth 
three criteria for assignment in September, 1964, of all 
students entering one grade, i.e., the 8th grade, which is 
the first year of high school. These criteria are: (1) choice 
of the pupil or his parents; (2) availability of facilities; and 
(3) proximity of the school to place of residence (Respon­
dents’ Memorandum, pp. 9-10).

The resolution further provides: “ . . . where facilities 
are not available for all, priority shall be based on prox-



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imity.” This provision is further qualified: . . except
that for justifiable educational reasons and in hardship 
cases other factors not related to race may be applied.” In 
addition, so-called “Administrative assignments or reas­
signments may be made in cases of overcrowding, in hard­
ship cases, and for disciplinary reasons.” The resolution 
then states: “When such administrative assignments are 
made they shall be based on relative proximity and avail­
able facilities giving consideration to pupil choice where 
possible” (Respondents’ Memorandum, p. 10).

The resolution next provides for students in grades 9, 
10, 11, and 12. These are the grades already reached by the 
grade-a-year pupil assignment plan in operation since Sep­
tember of 1961. In these grades “ transfers” are to be 
“ freely granted” according to the three criteria set forth 
above. No “ formal application” is required “ other than the 
usual pre-registration required of all students.” (There 
is no explanation of the pre-registration requirement.) 
There is no discussion of those not desiring to transfer; 
presumably they will remain where they are (Respondents’ 
Memorandum, p. 10).

As to students who in September, 1964 will be in grades 
8 through 12, the resolution provides for a freezing of as­
signments. This is effected by the following statement: 
“ That where a student has exercised his choice of schools, 
either by initial assignment to the eighth grade or by trans­
fer, as herein provided, further and additional transfers 
will be permitted only in hardship cases or for valid edu­
cational reasons unrelated to race” (Respondents’ Memo­
randum, p. 10).

Students in grades 1 through 7, in September, 1964, re­
main completely segregated, because the grade-a-year plan 
will have reached only the 8th grade. In these grades, prior



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to 1961, there were separate school zone lines for Negro and 
white elementary schools. “There has been no change in 
the elementary situation” (R. 61).

Prior to the Court of Appeals’ opinion, as the Super­
intendent testified, students entering high school in Atlanta 
entered the high school “ that had traditionally served that 
elementary school.” This was known as the feeder system. 
Negro elementary schools would feed into Negro high 
schools. White elementary schools would feed into white 
high schools (R. 62-63). The majority of the Court of 
Appeals believed that the “ main thrust or force” of At­
lanta’s grade-a-year pupil assignment plan would be “ in 
the admission and assignment from elementary to high 
schools, and to the first grade” (R. 241). It conceived of 
the plan as superseding the feeder system in that:

. . .  for the school term beginning in September 1964, 
the plan will lay hold of the feeder system for the first 
time. This follows from the fact that such factors as 
are used for assignment and transfer must be used 
system wide in the assignment and transfer of seventh 
grade students to the eighth grade since they will be 
moving from one school to another, elementary to high 
school. This will remove even the residuum of the dual 
system from this grade and will rapidly dissipate it 
from the other high school grades as other succeeding 
elementary grades reach the eighth grade. (R. 241- 
242.)

As to the students already in grades 9-12, the majority 
approved the plan as amended in practice by respondents. 
This amendment was to apply the criteria of the plan only 
to Negro students seeking transfers to white schools. The 
Court of Appeals accepted this amendment of the plan to 
a transfer plan but required as to grades reached by the



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plan that these criteria be applied to all transfers (R. 258). 
In addition, that Court required application of these cri­
teria “ to all assignments of pupils new to a school for 
admission in a desegregated grade in that school” (R. 258). 
From this flowed the emphasis on the 8th grade, the first 
year of the high school, and eventually the first grade.

The plan adopted April 8, 1964, which retains the original 
grade-a-year feature, will reach the first grade in 1971. 
Then all first grade students will be assigned pursuant to 
the three remaining criteria. Students in grades two to 
seven will have had a right to transfer pursuant to the 
three criteria, having been initially assigned pursuant to 
the separate zone lines. It will not be until 1977, when the 
1971 second grade class reaches the eighth grade, that all 
pupils in the Atlanta system will have been initially as­
signed to schools pursuant to non-racial criteria.

The plan adopted April 8, 1964, requires all students 
who are now in the seventh through the twelfth grades 
in Atlanta’s segregated schools to exercise a choice of 
schools. To this choice two principal criteria will be ap­
plied : availability of facilities and proximity of school 
to place of residence. The “ availability” criterion reserves 
places in white schools for whites. Negroes can enter white 
schools if there is room or whites leave. Since this is 
unlikely, we have an automatic freeze. This points up 
the necessity for non-racial capacity-related school zones 
now throughout the entire system. Further, it is not clear 
whether the “ proximity” criterion will permit Negro stu­
dents who live closer to white schools than whites who 
are already in attendance to be given priority in assignment 
to the white school.

As to Negro children who do not elect to go to a white 
school, and white children who do not elect to go to a Negro



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school, there will be no further desegregation in Atlanta, 
and Atlanta does not advise this Court of any steps it will 
take to disestablish the dual school system which it estab­
lished and which remains in existence. Finally, respon­
dents do not shed any more light on their chimerical “ pres­
ent administrative problems” which now prevent them from 
completely desegregating the Atlanta public school system.

Bespectfully submitted,

Constance B aker M otley
J ack  Greenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N.E. 
Atlanta, Georgia

D onald L. H ollowell
Cannolene Building (Annex) 
859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Petitioners

N orman C. A maker 
A . T. W alden 
J . L eV onne Chambers 
M blvyn  Z arr

Of Counsel



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CERTIFICATE OF SERVICE

This is to certify that I have this 22nd day of April, 
1964, served a copy of Petitioners’ Response to the Respon­
dents’ Memorandum of Facts on Attorneys for Respon­
dents, A. C. Latimer, Esq., 1205 Healey Building, Atlanta, 
Georgia and Newell Edenfield, Esq., 310 Fulton Federal 
Building, Atlanta, Georgia, by mailing a true copy to 
each of them at the addresses above via United States 
mail, air mail special delivery, postage prepaid.

Attorney for Petitioners



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