Bivins v. Board of Public Education and Orphanage for Bibb County Brief for Appellants

    I n - t h e ,

Mnxttb U tata  Cmtrt of Kppmhx
F oe t h e  F if t h  C ir c u it  

No. 21690

S h ir l e y  B iv in s , et al.,

-v.—
Appellants,

B oard of  P u b l ic  E du ca tio n  a n d  O r ph a n a g e  for  
B ibb  C o u n t y , et al.,

Appellees.

A P P E A L  FR O M  T H E  U N IT E D  STA TES D IS T R IC T  COU RT 

FO R  T H E  M ID D L E  D IS T R IC T  O F GEORGIA

BRIEF FOR APPELLANTS

D onald  L. H ollow ell

859% Hunter Street, N. W. 
Atlanta, Georgia

J ack  G reen berg  
C o n sta n ce  B a k e r  M otley  
D e r r ic k  A. B e l l , J r .

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants.



I N D E X

PAGE

Statement of the Case .............. .................. ............. . 1
Pre-Litigation Pleas and Petitions ................. . 2
Description of Board’s Plan ............... ...............  4
Appellants’ Objections and Interim Plan ...... . 5
Board Defense of Its Plan .................... ............ . 6
Approval of Plan by Lower Court ................. . 9

Specifications of Error ........... ..................... ............. . 9

A r g u m e n t  :

Appellees’ 20 Year Desegregation Plan Fails to 
Meet the Minimal Standards Set by This Court 
and Countenance Impermissible Delay________  10

C o n c l u s io n .......... ................................ ........................ . 18

T able op  Cases

Armstrong v. Board of Education of Birmingham, 323 
F. 2d 333 (1963), F. 2d M l-  (5th Cir., June 18,
1964) ...................... ............ .................................11,15,17

Augustus v. Board of Public Instruction, 306 F. 2d 862 
(5th Cir., 1962) .................. ........................... ........ 15

Bell v. School Board of Powhatan County, Va., 321
F. 2d 494, 499 (4th Cir. 1963) ___ ______ ___ ____ 14

Belo v. Randolph County Board of Education, Civ. No. 
209-G-63 (M. D. N. C.) 16



ii

PAGE

Bennett v. Madison County Board of Education, Civ.
No. 63-613 (N. D. Ala.) --------- ------- ----- ----------  17

Boyce v. County Board of Education of Humphreys
County, Tenn. Civ. No. 3130 (N. D. Tenn.) ... ..........  17

Bradley v. School Board of City of Richmond, Va., Civ.
No. 3353 (E. D. Va.) (317 F. 2d 429) (4th Cir.) .... 17 

Brown v. Board of Education, 347 IT. S. 483 (1954) ..2, 5,16 
Brown v. Board of Education, 349 U. S. 294 (1955) .... 10
Brown v. School District No. 20, 226 F. Supp. 819 

(E. D. S. C. 1963), aff’d 328 F. 2d 618 (4th Cir.
1964) ................. ...............- .....-................ -...............  16

Bush v. Orleans Parish School Board, 308 F. 2d 491 
(5th Cir., 1962) ........................................................ 10,15

Calhoun v. Latimer, 377 U. S. 2&- (1964) ................. 10,13
Carr v. Montgomery County Board of Education, Civ.

No. 2072-N (M. D. Ala.) ..........-.............-.......-........  17
Cooper v. Aaron, 358 TJ. S. 1 .......................................  15

Davis v. Board of School Commissioners of Mobile
County, 322 F. 2d 356 (1963),-----F. 2d —  (5th
Cir., June 18, 1964) ................ -.....- ................. H> 15,17

DuBissette, et al. v. Cabarrus County Board of Educa­
tion (M. D. N. C.) ....................-................................  16

Eaton v. New Hanover County, Civ. No. 1022 (E. D.
N. C.) .....................................-..................................

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) cert, 
denied, 364 H. S. 81 (1961) .......................... -...........

Ford v. Cumberland County Board of Education, No. 
668 (E. D. N. C.) .................................................. -

Gaines v. Dougherty County Board of Education, No. 
20984 (July 31, 1964) ......................................... -U, 17,18



Ill

PAGE

Gill v. Concord City Board of Education, No. C-223-
S-63 (M. D. N. C.) .................. ..................................  16

Gilmore v. High Point Board of Education (M. D.
N. ('.). No. C-51-G-63 ____ ___________ _____ _ 16

Glynn County Board of Education v. Gibson,-----P. 2d
----- , June 18, 1964 .............. ................................... 16

Goss v. Board of Education of the City of Knoxville,
373 U. S. 683 (1963) _________ __ ______ ______  10

Goss v. Board of Education of City of Knoxville, 301 
F. 2d 164 (6th Cir. 1962) rev’d on other grounds,
373 IT. S. 683 ......... ...................................................10,14

Goss v. Board of Education of Knoxville, No. 3984
(E. D. Tenn.) ...... .................. ................................ 17

Griffin v. County School Board of Prince Edward
County, 377 U. S. 218 (1964) _____ _____ ____  10

Griffith v. Board of Education of Yancey County, Civ.
No. 1881 (W. D. N. C.) ................... ..................... . 16

Hall v. Hon. E. Gordon West, -----  P. 2d -----  (5th
Cir., July 9, 1964) ....................................................  17

Hereford v. Huntsville Board of Education, Civ. No. 
63-109 (N. D. Ala.) ............... .....................................  17

Jackson v. School Board of City of Lynchburg, Va., 321
F. 2d 230 (4th Cir., 1963) ........ ..................... ......... 10

Jeffers v. Whitley (Caswell County), 309 F. 2d 621,
629 (4th Cir., 1962) .................................................  16

Miller v. Board of Education of Gadsden, Ala., Civ.
No. 63-574 (N. D. Ala.) ________ _____ ________  17

Eippy v. Borders, 250 F. 2d 690, 693 (5th Cir. 1957) .... 17



IV

PAGE

Sowers v. Lexington City Board of Education, C-20-
S-64 (M. D. X. C.) _______ ______ ____ ______  16

Stell v. Savannah-Chatham County Board of Educa­
tion, 318 F. 2d 425 (1963), F. 2d (5th Cir. 
June 18, 1964) ........... ............................. 11,13,15,17,18

Turner v. Warren County Board of Education, 1482 
(E. i). N. C.) ......... .................................... ..............  16

Vick v. County Board of Education of Obion County, 
Tenn. (Civ. No. 1259) (W. D. Tenn.) .............. .........  17

Watson v. City of Memphis, 373 U. S. 526 ............. 10,11
Wheeler v. Durham City Board of Education, Civ.

No. C-54-D-60 (M. D. N. C.) ...................................  16
Whittenberg v. School District of Greenville County,

S. C., Civ. No. 4396 (W. D. S. C.) ...... .................  16

Zigler v. Beidsville Board of Education, C-226-G-62 
(M. D. N. C.) 16



I n  t h e

Htttteb States Gkrurt rtf Appeals
F oe t h e  F if t h  C ir c u it  

No. 21690

S h ir l e y  B iv in s , et al.,
Appellants,

B oaed of P u b lic  E ducation  a n d  O eph a n a g e  foe  
B ibb  C o u n ty , et al.,

Appellees.

A P P E A L  F E O M  T H E  U N IT E D  STA TES D ISTR IC T  COURT 

F O E  T H E  M ID D LE D ISTR IC T  OF GEORGIA

BRIEF FOR APPELLANTS

Statement of the Case 

Preliminary Statement
This suit was brought by Negro parents of school chil­

dren attending the public schools of Macon and Bibb 
County, Georgia, after the Board of Public Education and 
Orphanage for Bibb County publicly announced that, not­
withstanding requests and petitions calling for voluntary 
school desegregation, they would not alter their traditional 
segregated school system unless such action was ordered 
by a federal court. Appellants present here for review a 
final order and judgment of the district court approving 
a desegregation plan which envisions two decades to com-



2
plete what the Board has already taken a full decade to 
begin.

The complaint follows what is by now the classic form, 
seeking for plaintiffs and their class a preliminary and 
permanent injunction against the Board of Public Educa­
tion and Orphanage of Bibb County, Georgia, its members 
and its Superintendent of Schools, enjoining them from : 
continuing their policy and practice of assigning pupils 
by means of a dual scheme of school zone lines based on 
race and color; assigning teachers, principals and other 
professional school personnel to the Bibb County schools 
on the basis of race and color; and approving budgets, poli­
cies, curricula and programs designed to maintain or sup­
port compulsory racially segregated schools (B. 3-12).

In the alternative, plaintiffs prayed that the Court enter 
a decree directing defendants to present a complete plan 
for the reorganization of the entire school system of Bibb 
County into a unitary nonracial system, within a period 
of time to be determined by the Court (B. 11).

P re -L itiga tion  P leas a n d  P e titio n s

This action culminates a lengthy history of vain efforts 
by plaintiffs and others to induce the Bibb County Board 
to voluntarily implement Brown v. Board of Education, 
347 U. S. 483 (1954).

In December 1954, a petition calling on the Board to de­
segregate the schools was submitted by Negro citizens of 
Bibb County who offered their services to the Board in the 
implementation of a desegregation plan (B. 90-92, 322-23). 
While petitioners requested notification of the meeting on 
this petition, the Board did not respond. Subsequent public 
statements indicated that the request was deemed “pre­
mature” by the Board (B. 92, 326).



3

In August 1955, a second petition signed by Negro parents 
and citizens (R. 92-93, 324-25) was submitted to the Board 
again calling for an end to racially segregated schools in 
Bibb County, and quoting the Supreme Court’s admonition 
that its decision requires “good faith compliance at the 
earliest practicable date” (R. 324). The Board, whose mem­
bership includes five lawyers and judges (R. 78) referred 
this petition to a special committee headed by Board mem­
ber Mallory C. Atkinson (R. 89), a law school professor 
(R. 77) and former Superior Court judge (R. 87). The 
committee in a “preliminary report” indicated that the 
problem would require an inestimable amount of “time, 
effort and study, . . . ” (R. 327).

In February 1961, the Macon Council on Human Rela­
tions, an interracial group, noting the repeal by the Georgia 
Legislature of statutes aimed at frustrating any school 
desegregation (R. 329), appealed to the Board to study 
the school situation for the purpose of initiating desegrega­
tion of the public schools (R. 97, 328). The receipt of this 
letter seems to have stimulated the Board to form a new 
committee to study the problem (R. 97, 122, 332).

In or about March 1963, a group of Negro citizens, in­
cluding some of the appellants, once again petitioned the 
Board to desegregate the Bibb County public schools (R. 
336-37). As a result, the Board, on April 25, 1963, filed a 
petition seeking a declaratory judgment in the Bibb County 
Superior Court as to whether the Board had the power to 
desegregate the schools in view of their charter from the 
State which prescribes the operation of a system of distinct 
and separate schools for white and colored children (R. 18). 
The Superior Court ruled that the Board has the authority, 
under its charter, to operate its schools on a desegregated 
basis (R. 23).



4

Nevertheless, on July 30, 1963, the Board adopted a 
Resolution stating that- any decision to change the present 
segregated operation of the Bibb County Public Schools 
must be left to the federal courts, and reaffirming the 
Board’s conviction that integration of the races in the 
public schools of Bibb County would be detrimental to both 
the colored and white races, and the entire county (R. 23- 
25).

D escrip tio n  o f B o a rd ’s P la n

Plaintiffs filed suit in August 1963, and the Board’s 
answer admitted the essential allegations of jurisdiction, 
the capacity of plaintiffs to sue in behalf of themselves and 
as representatives of the class of minor Negro children 
similarly situated, and that the Board had in the past and 
presently operates separate schools for white and colored 
children in Bibb County (R. 16,17,18, 22).

The district court, following a pre-trial hearing, ordered 
the Board to make a prompt and reasonable transition to a 
racially non-discriminatory school system and to present 
to the court within thirty days a complete plan adopted 
by the Board for this purpose (R. 29). The plan was 
submitted on February 24, 1964 (R. 30-36).

Under the plan, no immediate change was to be made in 
the identification of residential areas or in the identification 
of the high school to which pupils graduating from the sev­
eral grammar schools are assigned. Except for a transfer 
provision, the present policies and procedures of the system 
are to be continued with respect to the placement of pupils 
entering the system and with respect to the transfer of 
pupils within the system. The plan permits applications 
for transfer only for the 12th grade for the school year 
1964-65. Thereafter, the transfer plan is to be similarly



5

applied to all 11th and 10th grades for 1965-66, all 9th 
grades for 1966-67, all 8th grades for 1967-68, all 7th grades 
for 1968-69, all 6th and 5th grades for 1969-70, all 4th 
grades for 1970-71, all 3rd and 2nd grades for 1971-72, and 
all 1st grades for 1972-73, becoming at that time an open 
admission plan, as to first grade students, which plan will 
then progress throughout the system at the speed of a 
grade-a-year (R. 35, 36, 66).

A ppellan ts’ O bjections an d  In te r im  P lan

Appellants, in objections filed with the court on March 
16, 1964, objected to the Board plan on the following 
grounds (R. 37-39):

That no criteria were enumerated to guide the Super­
intendent in the granting or refusal of applications for 
transfer and in the designation of public schools to be 
attended; nor was there any procedure for appeal pro­
vided, in the event of dissatisfaction with the designa­
tion;
Dual racial zones are maintained and there is no basic 
plan for bringing about a transition to a unitary non- 
racial system at any time in the immediate future; 
The plan places the burden of initiating any change on 
the student seeking transfer;
The provisions establishing an advisory committee are 
vague and indefinite; and the plan purports to permit 
9 years for the total desegregation of the Publie School 
System of Bibb County even though it has been 10 years 
since the Supreme Court decision in Brown v. Board 
of Education, 347 IT. S. 483 (1954).

Appellants submitted their own interim plan of desegre­
gation calling for freedom of choice assignments in all 
grades, and continuing such policy until the Board began 
assigning all students without regard to race (E. 40-41).



6

B o ard  D efense o f I ts  P la n

Hearing was held on the Board’s plan and the objec­
tions thereto on April 13-14, 1964 (R. 42). The testimony 
of the Superintendent, Julius L. Gfholson, revealed that 
there are recognized geographical areas for white children 
and recognized geographical areas for colored children 
which are different and which determine school assign­
ments; that the prior practice of assigning students on a 
racial basis by means of school capacity and the avail­
ability of transportation to the schools was not changed, 
only limited by the “opportunity” to transfer to a different 
school under the proposed plan (R. 60). He further testi­
fied that the criteria for transfer included scholastic eli­
gibility, availability of space, capacity of the school and 
transportation (R. 61-62). Mr. G-holson stated that it would 
take nine years for the plan to include all the classes of 
the public school system and that the plan was essentially 
a transfer plan, dependent upon a student application for 
its efficacy (R. 66-67). He also testified that problems of 
changing customs and traditions, with their strong psycho­
logical impact on the community, were ̂ grounds for the_ 
Relay inherent'in the plan (R. 71). When questioned as to 
the basis of his interpretation, he admitted that his sources 
were second-hand, consisting of periodicals that he had 
read, in particular, The U. 8. News and World Report, and 
talks with other Superintendents at a “professional meet­
ing” (R. 74). For similar reasons, the Board refused to 
include teacher desegregation as a part of their plan (R. 
68-74).

Mr. Miller, a Board member and attorney (R. 117) testi­
fied that a committee was formed back in 1955, after the 
first decision implementing Brown; that there was a subse­
quent committee, and later, still a third committee; and



7

that each of these committees began to do “something” 
after a request on the part of those seeking to get the 
Board to act (R. 122-23). During the period between 1955 
and 1961, the Board’s inactivity was explained in terms of 
the barriers set up by the State: the new package laws; 
and the laws enforcing segregation which were already on 
the books, the violation of which, the Board feared, would 
have resulted in a termination of State funds (R. 122). 
'When the Georgia legislature repealed statutory pro­
visions requiring segregation, the Board thereafter ques­
tioned its own authority to implement the Supreme Court 
mandate because of the provision requiring segregation in 
its own charter (R. 118).

Mr. Miller also testified, both on direct and cross-exami­
nation, that it was the opinion of the committee and subse­
quently the resolution of the Board that there should be 
no recommendation of a voluntary plan of integration (R. 
139). Mr. Miller based, his opposition to “mass desegrega­
tion” on the grounds of projected difficulties and the need 
to limit and forestall friction. He had no first-hand knowl­
edge of impending difficulties or friction, relying mainly on 
mass media for his opinions (R. 140-41).

Dr. Leon R. Culpepper, a Board official who will admin­
ister the plan (R. 146), indicated that the plan had been 
under study for a year (R. 171). He explained the Board 
procedures that follow filing of an application for transfer. 
In summary, transfer application forms, which are obtain­
able only at the office of the Board of Education (R. 148), 
must be signed by the student, his parent and a witness, 
(R. 150), and returned during a 30 day transfer period 
(R. 148). The Superintendent then obtains a complete 
transcript of the student’s grades, including aptitude and 
achievement tests, and additional information on his “atti­
tude, cooperation and stability” (R. 152). He then grants



or denies the application based on “eligibility” which means 
passing marks (E. 153), “availability” which refers to avail­
ability of a school bus or city buses with regard to the 
school requested for; and “capacity” pertaining to the 
capacity of the school to which the student seeks to transfer 
(R. 154).

The plan permits the Superintendent to call in the stu­
dent seeking transfer and his parents to clear up discrepan­
cies or irregularities in the application or to point out 
reasons why the requested transfer is not in the student’s 
own best interests (R. 155). Students in “disciplinary diffi­
culty” may for that reason be denied transfer (R. 158).

Superintendent Julius L. Gholson testified that the deci­
sion was made to start at the upper grades rather than the 
lower grades because 1) “at that stage the students were 
more mature and that you could appeal to them and reason 
with them, and could probably get better cooperation be­
cause of their maturity.” 2) “Their parents are not as 
emotionally concerned with them at the 11th and 12th 
grades in senior high schools as they would be if they were 
first entering school; and you would not have as many prob­
lems because of emotionalism and concern of parents” (R. 
185-86).

Dr. Weaver, Board President, revealed that his opposi-. 
tion to mass integration by a speedier plan was based 
solely on a ’ subjective evaluation of what he had heard , 
from others and read in the press (R. 201, 203).



9

A p prova l o f P la n  by L ow er C o u rt

The court below approved the Board’s plan as submitted 
(R. 278-97) and denied ail injunctive relief sought by ap­
pellants. Reviewing the record, including the Board’s in­
action in the face of several petitions calling for school de­
segregation, and its refusal to abandon segregated schools 
without a federal court order (R. 291), the court concluded 
that the Board plan is “legally sufficient and acceptable” 
(R. 296).

Notice of appeal was filed on May 25, 1964 (R. 298-99).

Specifications of Error

The District Court erred in :
1. Refusing to enjoin the operation of a dual system in 

Bibb County, Georgia, based wholly upon race and the as­
signment of children to schools on the basis of the dual 
system.

2. Refusing to rule on the validity of requiring assign­
ment of professional school personnel to the schools of Bibb 
County on a non-racial basis as part of a desegregation 
plan.

3. Approving a “transfer” plan which operates to delay 
and to postpone at least nine years even the commencement 
of freedom of choice assignments in the public schools of 
Bibb County.



10

A R G U M E N T
Appellees’ 20 Year Desegregation Plan Fails to Meet 

the Minimal Standards Set by This Court and Coun­
tenances Impermissible Delay.

The Board of Public Education and Orphanage for Bibb 
County required to produce a desegregation plan under 
the compulsion of a court order after years of conscious 
delay, has attempted to further evade the mandate of 
Brown v. Board of Education, 349 U. S. 294 (1955) and the 
more recent admonitions of Watson v. City of Memphis, 373 
U. S. 526, Goss v. Board of Education of the City of Knox­
ville, 373 U. S. 683 (1963), Calhoun v. Latimer, 377 U. S. 
263 (1964), Griffin v. County School Board of Prince Ed­
ward County, 377 U. S. 218 (1964). Evasion is perpetrated 
by a transfer plan which frustrates and postpones mean­
ingful desegregation for a period of twenty years.

The plan, commencing at the twelfth grade level, and 
operating on a descending basis, will take nine years to 
reach grade one. It then becomes a freedom of choice plan 
as to students entering the first grade and progresses with 
that class through the system until in 1984, all students 
will have a choice of attending, either Negro or white 
schools.

The plan is more deliberately slothful than those of the 
“grade-a-year” variety now rejected by the Third, Fourth, 
Fifth and Sixth Circuits in Evans v. Ennis, 281 F. 2d 385 
(3rd Cir. 1960), cert, denied, 364 U. S. 81 (1961); Jackson 
v. School Board of the City of Lynchburg, 321 F. 2d 230 
(4th Cir. 1963); Bush v. Orleans Parish School Board, 308 
F. 2d 491, 500, 501-502 (5th Cir. 1962); Goss v. Board of 
Education of City of Knoxville, 301 F. 2d 164 (6th Cir. 
1962), rev’d on other grounds, 373 U. S. 683, and falls 
seriously short of the timing required by Watson, a time



11

table based on the number of years that have already 
elapsed since Brown. The court in Watson said:

Given the extended time which has elapsed, it is far 
from clear that the mandate of the second Brown deci­
sion requiring that desegregation proceed with “all 
deliberate speed” would today be fully satisfied by 
types of plans or programs for desegregation of public 
educational facilities which eight years ago might have 
been deemed sufficient. 373 U. 8. 526, 530.

The plan before the court also falls far short of the mini­
mal standards set for desegregation plans on June 18, 1964, 
in Stell v. Savannah-Chatham Board of Education; Arm­
strong v. Board of Education of Birmingham; and Davis 
v. Board of School Commissioners of Mobile. In these deci­
sions, issued after the lower court’s decision and the filing 
of this appeal, this Court again condemned desegregation 
at a grade per year pace, and held that plans beginning in 
the 12th grade must also end segregation in the first grade 
as to students entering the system for the first time so that 
the bi-racial system is not perpetuated. Moreover, this 
Court said in Stell v. Savannah-Chatham, supra:

. . .  a necessary part of any plan is a provision that 
the dual or bi-racial school attendance system, i.e., 
separate attendance areas, districts or zones for the 
races, shall be abolished contemporaneously with the 
application of the plan to the respective grades when 
and as reached by it.

More recently this Court in Gaines v. Dougherty County 
Board of Education, No. 20984 (July 31, 1964) required a 
start in grades one, two and twelve, with at least three addi­
tional grades to be added to the plan yearly “ . . .  in order 
that every Negro child in the Dougherty County School 
System have at least an opportunity to enjoy a desegregated



12
education during Ms school career.” As to grades being 
desegregated, each child may choose the nearest formerly 
Negro or white school. Such choice must be granted unless 
the school chosen is already crowded with pupils living 
closer to that school, or until the Board submits a plan 
assigning all pupils to the schools nearest their residence.

Clearly, the Board’s plan fails to meet this Court’s mini­
mal standards as to speed and coverage, but a closer look 
at the plan reveals not simply a nine year delay in the 
effectuation of the transfer plan but further, a twenty year 
delay in the effectuation of desegregation in the system of 
public education. The plan, which has been accepted by 
the court below, insures no rights, and provides merely for 
a grade by grade opportunity to transfer from one school 
to the other, beginning with grade 12. Only when the trans­
fer program reaches grade one—some nine years later— 
does appellee’s “desegregation plan” apply to entering stu­
dents automatically and on a nonracial basis. At that point, 
however, it would take eleven more years before all grades 
were affected by the unitary nonracial admissions.

This spotlights what is perhaps the most glaring defi­
ciency of the plan: that it is not a desegregation plan at 
all—only a transfer plan with even freedom of choice as­
signments effectively postponed for nine more years. As a 
nine year transfer plan, the Bibb County plan not only post­
pones the commencement of desegregation, but does so by 
a method which has been explicitly rejected by the courts. 
The burden of getting out of the segregated arrangement is 
placed upon the student; if no one applies for transfer, 
nothing at all is done: all children are reassigned to the 
same schools that they are now attending.

This burden is weighted with variations of the onerous 
transfer requirements frequently condemned by this Court. 
For example, transfer applications must be made on a form



13

obtainable only at the Board’s office (R. 148). The form 
must be signed by the pupil, his parents or guardian and 
a witness (R. 150).1 The Board Superintendent studies the 
transfer applicant’s grades, including achievement scores, 
his personality as indicated by his “attitude”, “cooperation” 
and “stability” (R. 152), considers eligibility, availability 
and school capacity (R. 153-54). He may call in the student 
and parents for a conference to discuss irregularities in 
the application, or to point out why the transfer is not in 
the pupil’s best interests (R. 155), and may deny applica­
tions of pupils deemed in “disciplinary difficulty” (R, 158).2 
It will not be surprising that most Negro parents and stu­
dents will hesitate to exercise their opportunity to transfer 
to white schools after considering the difficulties of nego­
tiating these administrative obstacles, none of which are 
required of white children assigned to white schools as a 
matter of course.3

The inadequacy of the plan becomes more glaring and 
more manifestly calculated when placed in the context of 
the Board’s inactivity, delay and express opposition to the 
desegregation of the Bibb County Public Schools. The

1 “Onerous requirements such as the notarization of applications 
for assignment are not to be condoned.” St ell v. Savannah-Chatham 
Board of Education, supra.

2 Special criteria, including special standards of scholastic 
achievement, personality or conduct applied only to transfer ap­
plicants have been condemned in Stell v. Savannah-Chatham Board 
of Education, supra; Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 
1963).

3 Preliminai’y reports indicate that only 34 Negroes obtained 
transfer application forms as provided in ^he Board’s plan. 
Twenty-nine forms were returned, and while 28 applications were 
approved (one was denied for scholastic reasons), four have 
dropped out for reasons which include discouragement by teachers, 
and one has moved out of the district. Thus, at this point, with 
school opening still a month away, only 25 of the 13,000 Negro 
students in the system will be attending desegregated schools.



14

Board repeatedly refused to initiate a clarification of the 
state law and its own authority, despite petitions by citi­
zens of Bibb County. After the state legislature finally 
lifted its own statutory prohibition of desegregation, the 
Board again dragged its feet, this time by seeking a declara­
tory judgment on the question of its authority under a 
Charter provision inconsistent with the newly defined state 
law.

Even after the Superior Court cleared the way for affirm­
ative action, the Board chose instead to await the com­
pulsion of a court order, voting to record a resolution of a 
majority of the Board that the latter continue its present 
segregated system of operating its schools because of a 
conviction that “integration of the races in the public 
schools of Bibb County will be detrimental to both the 
colored and white races” ; and because they felt “the vast 
majority of both our colored and white citizens of Bibb 
County are satisfied with the present system of operation 
of our schools, . . . ” (B. 25).

The Board’s plan, apparently prepared with these convic­
tions and feelings in mind, clearly evidences a desire and 
intent to replace total segregation with token integration. 
The court below, however, refused to condemn the Board 
for their frankness, stating: “Independence of thought is 
encouraged, and freedom of speech is guaranteed” (B. 291).4

4 This Court’s opinions have uniformly condemned the failure 
of school boards to act because they felt segregation should be 
retained, and at least two other circuits have taken a less charitable 
view of Board statements of disagreement than did the court below.

In Goss v. Board of Education of Knoxville, Tennessee, 301 F. 2d 
164, 167 (6th Cir. 1962), the Court said: “The position of the 
Board that it would continue to operate under these invalid laws, 
until compelled by law to do otherwise, does not commend itself 
to the Court,. . . ”

In Bell v. School Board of Powhatan County, Virginia, 321 F. 2d 
494, 499 (4th Cir. 1963), the Court, noting the declaration of



15

Appellants submit that while the Board may disapprove of 
the Supreme Court’s decision, they have no' right to disobey. 
Candor, whatever its virtues, is not compliance.

Compliance in this case requires the Board to produce a 
desegregation plan meeting the minimal standards recently 
summarized by this Court in Stell v. Savcmwah-Chatham 
Board of Education, but clearly set forth in decisions avail­
able when this case was acted on below.5 Thus, the pace 
of desegregation may not be set at a snail’s pace because 
of fear that a faster speed will result in community dis­
orders. Cooper v. Aaron, 358 U. S. 1 (1958). As stated 
in the Savannah decision, it is the lot of district courts to 
act:

“ • • • where school boards do not voluntarily follow the 
Constitution with relation to school operations, and 
once suits are filed in the District Court, to impose the 
burden on the school boards of justifying delay in the 
required full implementation of the constitutional 
rights involved.”

The Bibb County Board has had ample opportunity to 
initiate voluntary desegregation and there is no doubt that 
if a plan had been offered, it would have received the

Board counsel in oral argument that: “If it is our duty to en­
courage integration, then we have violated our duty!,” concluded 
sternly, “The School Board has indeed violated its duty.”

5 Augustus v. Board of Public Instruction, 306 F. 2d 862 
(5th Cir. 1962); Bush v. Orleans Parish School Board, 308 F. 2d 
491 (5th Cir. 1962). Even in injunctions ordered by this Court 
pending appeal, segregated schools were enjoined, and the school 
boards required to either completely end segregation with respect 
to one grade, Stell v. Savannah-Chatham County Board of Edu­
cation, 318 F. 2d 425 (5th Cir. 1963), or accept transfer applica­
tions in all grades. Armstrong v. Board of Education of Birming­
ham, 323 F. 2d 333 (5th Cir. 1963); Davis v. School Commissioners 
of Mobile County, 322 F. 2d 356 (5th Cir. 1963).



16

cooperation of the plaintiffs (E. 322-25), local Human 
Eelations groups (E. 328), and this Court. See Glynn
County Board of Education v. Gibson, -----  F. 2d -----
(June 18, 1964), where this Court noted the Board’s efforts 
to voluntarily begin desegregation and accordingly with­
held injunctive relief.

But the Board, with a full complement of legal talent, 
has chosen for ten years to answer requests and petitions 
for desegregation with silence (E. 322-23), committees (E. 
334-35), and frivolous legal action (E. 345-51). It is not 
the purpose of this appeal to determine the Board’s good 
faith in the past or present, nor may good faith be made an 
issue where, as here, the Board submits a desegregation 
plan, ten years after Brown, which will require twenty 
years before providing the degree of desegregation which 
has been obtained this year in many communities;6 and

6 In South Carolina, the Charleston and Greenville Boards have 
been ordered to grant free transfers in all grades. Brown v. School 
District No. 20, 226 F. Supp. 819 (B. D. S. C. 1963), aff’d 328 
F. 2d 618 (4th Cir. 1964); Whittenberg v. School District of Green­
ville County, S. C., Civ. No. 4396 (W. D. S. C.).

In North Carolina, the Durham Board has been ordered to per­
mit freedom of choice assignments in all grades effective in 1964. 
Wheeler v. Durham City Board of Education, Civ. No. C-54-D-60 
(M. D. N. C.). Freedom of choice plans have also been placed in 
effect in several other North Carolina communities after school 
desegregation suits were filed. These include: Jeffers v. Whitley 
(Caswell County), 309 F. 2d 621, 629 (4th Cir. 1962); Belo v. 
Randolph County Board of Education, Civ. No. 209-G-63 (M. D. 
N. C .); DuBissette, et al. v. Cabarrus County Board of Education 
(M. D. N. C.) ; Eaton v. New Hanover County, 1022 (E. D. N. C.) ; 
Ford v. Cumberland County Board of Education, No. 668 (E. IX 
N. C .); Gill v. Concord City Board of Education, No. C-223-S-63 
(M. D. N. C.) ; Gilmore v. High Point Board of Education (M. D. 
N. C.) No. C-51-G-63; Griffith v. Board of Education of Yancey 
County, Civ. No. 1881 (W. D. N. C .); Zigler v. Reidsville Board of 
Education, C-226-G-62 (M. D. N. C .); Turner v. Warren County 
Board of Education 1482 (B. D. N. C.) ; Sowers v. Lexington City 
Board of Education, C-20-S-64 (M. D. N. C.).



17

which will be granted in no more than four years in Albany, 
Georgia, Gaines v. Dougherty County Board of Education, 
supra, and will be realized in sis years in several Georgia 
and Alabama communities even if plans presently in opera­
tion are not accelerated.7

Appellants contend that neither the Board nor the district 
court have provided them and their class the relief to which, 
under applicable decisions, they are presently entitled. In 
similar circumstances, this Court has repeatedly stated 
the sequence of responsibility now rests with the appellate 
courts. Rippy v. Borders, 250 F. 2d 690, 693 (5th Cir. 
1957) ; Armstrong v. Board of Education of Birmingham,
supra; Hall v. Hon. E. Gordon West, —-— F. 2 d -----  (5th
Cir., July 9, 1964). Counsel for appellees argued below

In Tennessee desegregation now encompasses all grades in Goss 
v. Board of Education of Knoxville, No. 3984 (E. D. Tenn.); Boyce 
v. County Board of Education of Humphreys County, Tenn., Civ. 
No. 3130 (M. D. Tenn.); Vick v. County Board of Education of 
Obion County, Tenn. (Civ. No. 1259) (W. D. Tenn.).

In Virginia a free transfer plan has been approved in Richmond. 
Bradley v. School Board of City of Richmond, Virginia, Civ. No.

\  3353 (E. D. Va.).
The above cases are intended to be illustrative rather than ex­

haustive.
7 Savannah and Brunswick, Georgia are in the second year of 

desegregation according to a transfer plan which will reach all 
grades by 1968. See: Stell v. Savannah-Chatham Board of Edu­
cation, —  F. 2 d ----- - (5th Cir., June 18, 1964).

In Alabama, similar plans are now in effect in Birmingham, 
Mobile, Gadsden, Huntsville, Madison County and Montgomery. 
Significantly for the present case, in all but Mobile and Birming­
ham, initial desegregation plans encompass four grades. See: Arm­
strong v. Board of Education of Birmingham, - ---- F. 2d ------
(5th Cir., June 18, 1964); Mobile, Davis v. Board of School
Commissioners of Mobile County,----- F. 2 d ------ • (5th Cir., June
18, 1964) ; Miller v. Board of Education of Gadsden, Alabama, 
Civ. No. 63-574 (N. D. A la.); Hereford v. Huntsville Board of 
Education, Civ. No. 63-109 (N. D. A la.); Bennett v. Madison 
County Board of Education, Civ. No. 63-613 (N. D. A la .); Carr 
v. Montgomery County Board of Education, Civ. No. 2072-N (M. D. 
Ala.).



18

that the Board is not a litigant in this case but a supplicant 
seeking “guidance and direction in a delicate and difficult 
field” (R. 309). Experience and precedent indicate that 
this Court’s guidance and direction should include instruc­
tions to the court below to enter an order directing the 
Board to promptly file a similar plan to those recently 
required in Stell v. Savannah-Chatham, supra, and Gaines 
y. Dougherty County Board of Education, supra-, and that 
such relief be made effective in January 1965, so that the 
Bibb County Board may at last be placed in step with 
those in Savannah, Brunswick, Albany and Atlanta, 
Georgia.

CONCLUSION

W h e r e fo r e , for all the foregoing reasons, appellants 
request that the order of the court below approving the 
appellee Board’s plan be reversed with directions to enter 
an order requiring the Board to promptly submit a plan 
which meets the minimal standards set for such plans in 
the Savannah, Georgia, and Birmingham, Alabama cases 
decided by this Court on June 18, 1964, and requiring im­
plementation in January 1965 of desegregation according to 
the terms of this Court’s opinion in Gaines v. Dougherty 
County Board of Education, supra.

Respectfully submitted,
D onald L. H ollow ell

859% Hunter Street, N. W. 
Atlanta, Georgia

J ack  G reenberg  
C onstance  B a ker  M otley 
D er r ic k  A. B e l l , J r .

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants.



19

Certificate of Service

The undersigned, one of counsel for appellants, hereby 
certifies that on this day of August, 1964, he served 
three copies of the Brief for Appellants upon C. Baxter 
Jones, Esq., attorney for appellees, at 1007 Persons Build­
ing, Macon, Georgia, by depositing same in the United 
States mail, air mail, postage prepaid.

Attorney for Appellants



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