Calhoun v. Latimer Brief for Appellants (Fred Latimer)

    Hutted States ©curt uf Appeals
F oe t h e  F i f t h  C i r c u i t  

No. 20273

In the

F e e d  S. C a l h o u n , et al.,

-y .—

Appellants,

A .  C . L a t i m e r , et al.,
Appellees.

o n  a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t  f o r  t h e

NORTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS

E. E. M o o r e  
Suite 201
175 Auburn Avenue, N. E. 
Atlanta, Georgia

D o n a l d  L .  H o l l o  w e l l

Cannolene Building (Annex) 
859% Hunter Street, N. W. 
Atlanta, Georgia

C o n s t a n c e  B a k e r  M o t l e y  
J a c k  G r e e n b e r g

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants
N o r m a n  A m a k e r  
A .  T .  W a l d e n  

Of Counsel



I N D E X

Statement of the Case 

Statement of the Facts 

Specifications of Error

A b g u m e n t  ...................................

C o n c l u s i o n  ..............................

PAGE

1

13

21

23

35

T a b l e  o e  C a s e s :

Augustus v. Board of Public Instruction of Escambia 
County, Florida, 306 F. 2d 862 (1962) ............... 26, 27, 34

Boson v. Rippy, 2S5 F. 2d 43 (1960) ..............................  26
Brown v. Board of Education, 347 U. S. 483 (1954) .. 28 
Brown v. Board of Education, 349 U. S. 294 (1955) ..28, 32 
Bush v. Orleans Parish School Board, 308 F. 2d 491 

(1962) ............................................................................. 26,31

Dove v. Parham, 282 F. 2d 256 (1960) ...........................  31

Gibson v. Board of Public Instruction of Dade County,
Florida, 272 F. 2d 763 (1959) ......................................25, 30

Green v. School Board of City of Roanoke, 304 F. 2d 
118 (1962) .......................................................................  27

Mannings v. Board of Public Instruction of Hills­
borough County, Florida, 277 F. 2d 370 (1960) ....25, 31 

Marsh v. County School Board of Roanoke, 305 F. 2d 
94 (1962) 27



11

PAGE

Northeross v. Board of Education of City of Memphis,
302 F. 2d 818 (1962) ..............................................27, 30, 31

Orleans Parish School Board v. Bush, 242 F. 2d 156 
(1957) .... ..........................................................................  3

Ross v. Dyer (No. 19912, Dec. 28, 1962, not yet re­
ported) ...........................................................................32, 33

S t atu tes :

28 United States Code §1343(3) .................................... 2

42 United States Code §1981...........................   2

42 United States Code §1983 ....................   2



In the

Imiefc Court of Apiiralo
F o e  t h e  F i f t h  C i r c u i t  

No. 20273

F e e d  S. C a l h o u n , et aL,
Appellants,

A. C. L a t i m e r , et aL,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS

Statement of the Case

This suit was brought to desegregate the public schools 
of Atlanta, Georgia.

Appellants, plaintiffs below, are appealing from an order 
of the United States District Court for the Northern Dis­
trict of Georgia, the Honorable Frank A. Hooper, entered 
on November 15, 1962 (R. 289)* which denied their Motion 
for Further Relief, filed April 30,1962 (R. 77), which sought 
to modify an injunctive order of July 9, 1959 enjoining 
defendants from operating Atlanta’s public schools on a 
segregated basis and directing them to present a plan for

* (R. ------- ) refers to Vols. 1 & 2 of the mimeographed record; (ft.
I l l  ------- ) refers to Volume 3 of the mimeographed record. The original
record, including portions not reproduced, is on file with the clerk.



2

desegregating the school system (R. 13). The course of 
litigation antecedent to this appeal was as follows:

Complaint was filed January 11, 1958 by infant Negro 
plaintiffs and their parents or legal guardians, acting as 
next friends, against the Board of Education and Super­
intendent of Schools of Atlanta, Georgia, defendants. Juris­
diction was invoked pursuant to 28 U. S. C. §1343(3) and 42 
U. S. C. §1983. The action was brought as a spurious class 
suit. The complaint alleged: “ the defendants are presently 
operating the public school system of Atlanta, Georgia on 
a racially-segregated basis, pursuant to the policy, custom, 
usage, regulations and laws of the State of Georgia of 
enforcing racial segregation in public institutions” (R. 5). 
The complaint further alleged:

The adult plaintiffs on their own behalf and on behalf 
of their children attending the public schools of the 
City of Atlanta have intermittently filed, since about 
June 3, 1955 through September, 1956, written peti­
tions with the Atlanta Board of Education, and Miss 
Ira Jarrell, Superintendent of Schools, in which the 
plaintiffs petitioned the said Superintendent of Schools 
and the Atlanta Board of Education to reorganize the 
public schools of the City of Atlanta on a racially 
non-segregated basis, in compliance with the United 
States Supreme Court’s decisions of May 17, 1954 and 
May 31, 1955 in the case of Brown v. Board of Educa­
tion of Topeka. That the defendants, members of the 
Board of Education of the City of Atlanta, Georgia, 
and the said defendant, Superintendent of Schools 
City of Atlanta have failed and refused to desegregate 
the schools within their jurisdiction and control (R. 6).

Plaintiffs further alleged that the operation of the public 
school system of Atlanta on a racially-segregated basis vio­
lated their rights under the equal protection clause of the 
Fourteenth Amendment and 42 U. S. C. §1981 (R. 7). Plain­
tiffs accordingly prayed for a preliminary and permanent



3

injunction enjoining defendants from operating Atlanta’s 
public schools on a racially-segregated basis (E. 7-8).

Defendants in their Answer admitted their supervision 
and control of Atlanta’s public schools but alleged that these 
schools depended for financial support upon State funds 
appropriated by the General Assembly of Georgia without 
which the schools could not be operated. Defendants denied 
their operation of the schools on a segregated basis; rather 
they alleged that attendance at the schools was on a neigh­
borhood basis “without any idea of discrimination against 
white children or Negro children on account of race or 
color, or otherwise” (E. 10-11). The Answer further stated 
that none of the infant plaintiffs had ever applied for 
admission to any school other than that they were currently 
attending nor had any of the minor plaintiffs ever been 
denied admission to any school because of race or color 
(E. 11-12).

Trial was held on June 5, 1959 (E. 13). The District 
Court filed its Opinion, Findings of Fact and Conclusions 
of Law on June 16, 1959 (E. I ll , 1). The Court found 
that the defendants were providing separate schools for 
white and Negro children (E. I ll, 3 ); that the plaintiffs 
had filed written petitions with defendants seeking the end 
of racial discrimination since 1955; that plaintiffs were not 
advised that racial discrimination did not exist but were 
informed rather that the matter would be taken under con­
sideration and studied and that “ there the matter has 
rested for some four years” (E. I ll, 5). The Court indi­
cated that it would render a decree enjoining discrimina­
tion similar to that approved by this Court in Orleans 
Parish School Board v. Bush, 242 F. 2d 156 (1957) (E. Ill, 
5-6) and that it would also require defendants to present a 
plan for the elimination of segregation in the public schools. 
The Court assumed that “ any plan submitted would con­



4

template a gradual process, which would contemplate a 
careful screening of each applicant to determine his or her 
fitness to enter the school to which application is made” 
(R. I ll, 7). The Court noted that integration of the schools 
might mean that all state funds for operating the schools 
would be cut off hence the plan submitted by the defen­
dants could be submitted subject to approval by the Georgia 
legislature (R. I ll , 8).

July 9, 1959, the District Court enjoined the defendants 
“ from enforcing and pursuing the policy, practice, custom, 
and usage of requiring or permitting racial segregation in 
the operation of the public schools of the City of Atlanta, 
and from engaging in any and all action which limits or 
affects admission to, attendance in, or education of, infant 
plaintiffs, or any other Negro children similarly situated, 
in schools under defendants’ jurisdiction, on the basis of 
race or color” (E. 13). Defendants were directed to present 
a desegregation plan by December 1 1959. Such plan, how­
ever, was to be “ submitted contingent upon the enactment 
of statutes permitting such plan to be put into operation” 
(E. 14). The Court further stated in its Order of July 9, 
1959 that:

This judgment of the court is not a final judgment in 
the case and the court retains jurisdiction of this cause 
for the purpose of entering such further orders or 
granting such further relief as may be necessary to 
bring about compliance with this decree and during 
such time as may be necessary to put into effect the 
defendants’ plan (R. 14).

Thereafter, on November 30, 1959, defendants submitted 
their plan (E. 15-25). The plan contemplated grade-a- 
year desegregation in reverse, stair-step fashion, begin­
ning with the twelfth grade and proceeding eventually 
through the first grade. The plan specified eighteen criteria



5

for pupil assignment, transfer and/or placement including 
the following:

. . . the adequacy of the pupil’s academic preparation 
for admission to a particular school and curriculum; 
the scholastic aptitude and relative intelligence or 
mental energy or ability of the pupil; the psychological 
qualification of the pupil for the type of teaching and 
associations involved; the possibility of threat of fric­
tion or disorder among pupils or others; the possibility 
of breaches of the peace or ill will, or economic 
retaliation within the community; the psychological 
effect upon the pupil of attendance at a particular 
school; the home environment of the pupil; the main­
tenance or severance of established social and psycho­
logical relationships with other pupils and with 
teachers; the ability to accept or conform to new and 
different educational environment; the morals, con­
duct, health and personal standards of the pupil . . . 
(E. 18-19).

Existing school assignments were to continue without 
change; applications for admission, assignment, or transfer 
were to be received between June 1 and June 15 next pre­
ceding the school year for which they were made (E. 20). 
The rules and procedures specified in the plan were con­
tingent upon the enactment of statutes by the General 
Assembly of Georgia permitting the plan to be put into 
operation (E. 24).

Plaintiffs filed objections to the plan December 12, 1959 
(E. 25-26). Plaintiffs objected that the plan was concerned 
only with pupil assignment; that it avoided the duty to 
desegregate; that it contained inherent delays which ren­
dered a jjrompt and reasonable start toward desegregation 
impossible; that defendants had not borne the burden of 
showing that twelve years was necessary to fully desegre­
gate public schools; that the factors of the possibility of 
threat or friction or disorder among pupils or others and



6

the possibility of breaches of the peace or ill will or retalia­
tion in the community were constitutionally irrelevant; that 
the plan permitted arbitrary action because of its vague­
ness and indefiniteness and that in any case the plan could 
not be made contingent upon the enactment of statutes by 
the General Assembly of Georgia.

Plaintiffs’ objections were heard December 14, 1959 (R. 
I ll , 73-119). Thereafter, on December 30, 1959, the Dis­
trict Court rendered an Order on Defendants’ Motion to 
Approve the Plan. It ordered stricken the criterion of 
economic retaliation but did not order defendants to strike 
the criterion of contemplated friction or breaches of the 
peace but held only that this standard would be taken to 
contemplate factors other than racial discrimination. The 
standards involving psychological factors were ordered to 
be applied without reference to race or color. The Court 
further ordered the plan amended to provide a more ex­
peditious administrative procedure and a severability pro­
vision. Defendants amended the plan and plaintiffs filed 
additional objections primarily directed to the procedures 
for administrative review (R. 45). The plan as finally 
amended (R. 46) was approved by the District Court on 
January 20, 1960 (R. 55).

The approved plan contained seventeen criteria for ad­
mission, assignment and transfer, the criterion of economic 
retaliation alone having been excised. Under the plan, all 
existing school assignments were to remain unchanged. 
The dates for receiving applications for assignments or 
transfer were changed to May 1 through May 15 of the 
year next preceding the school year for which such ap­
plication was made. Under the approved plan, the Su­
perintendent of Schools was empowered to interview and 
investigate each applicant. Under the procedures for ad­
ministrative review, notice of the action taken on request



7

for assignment or transfer was required to be rendered 
thirty days after such request but, in any case, no later 
than June 15. Provision was made for a hearing pursuant 
to written request within ten days of such notification, or 
written objections to an assignment could be made without 
a hearing being requested, in which ease the Board of Edu­
cation was empowered to act upon the objections “within a 
reasonable time.” Any hearing was to be held within 
twenty days from receipt of request and failure of parents 
to appear at the hearing was deemed a withdrawal of the 
application. Parents dissatisfied with the action of the City 
Board could then appeal to the State Board of Education. 
The plan was made contingent upon the enactment of stat­
utes of the General Assembly of Georgia permitting it to 
be put into operation (R. 46-55).

On February 26, 1960 plaintiffs moved for further relief, 
on the ground that their rights could not be made contin­
gent upon action by the Legislature; they requested that 
the plan commence in May, 1960 so that desegregation 
could take place in September, 1960 (R. 56-62).

A Response to the motion filed March 8, 1960 by defen­
dants (R. I ll , 13), recited that the General Assembly had 
convened on January 11, 1960 and adjourned on February 
19,1960 without taking any action on the plan submitted to 
the court. Instead, a General Assembly Committee on 
Schools was appointed to study the problem, hold hearings 
and make recommendations to the Legislature. A copy of 
the resolution appointing the Committee was annexed to the 
Response (R. I ll , 21). The Committee’s report was to be 
given by May 1, 1960. Hence, the Court in an order en­
tered on March 9, 1960 (R. 63) denied the motion and 
reserved decision on the commencement of the plan until 
after a hearing on May 9, 1960 (R. 65-66). Plaintiffs, how­
ever, were given a certificate as provided by Act of Con­
gress to enable them to appeal to this Court (R. 67-68).



8

Plaintiffs then noticed appeal from this order (R. I ll, 
28), but moved to dismiss their appeal on March 24, 1960 
(R. I ll, 30). On the same date, plaintiffs were ordered to 
amend their motion to specify the order or orders from 
which they were appealing and to recite the legal effect of 
the granting of the Motion to Dismiss (R. I l l ,  32-33). 
Plaintiffs complied with the order of the court by filing an 
Amended Motion to Dismiss on April 2, 1960 (R. I l l ,  34). 
Plaintiffs therein stated that their appeal was taken from 
the order of March 9, but that upon reconsideration they 
decided to await the outcome of the hearing of May 9, 1960 
and for that reason moved to dismiss the appeal. Accord­
ingly, appeal was dismissed by order of the District Court 
on April 5, 1960 (R. I ll , 35).

Thereafter, on May 9, 1960, after a hearing on the same 
date, the District Court ordered that plaintiffs’ Motion for 
Further Relief of February 26, 1960, insofar as it sought 
to put the plan into operation as of September, 1960, was 
denied; that the Motion for Further Relief was granted to 
effect the commencement of the plan as of May 1, 1961 
looking toward the operation of the school system for the 
September, 1961 school year; that the plan would be in­
stituted in both the twelfth and eleventh grades beginning 
September, 1961 whether or not the General Assembly at 
its January, 1961 Session passed legislation permitting the 
plan to be put into operation (R. 68-69).

September 13, 1960, the District Court entered an Opin­
ion supplemental to its Order of May 9th (R, 70). By this 
time, the recommendations made to the legislature by the 
School Committee were known to the Court. The Court’s 
opinion stated that, “ [it] now seems clear that the people 
of Atlanta and Fulton County would prefer to have said 
plan put into operation, than to have Atlanta’s schools 
closed” (R. 73). The Opinion set out Recommendation No.



9

5 which suggested enabling legislation to allow each local 
school board to adopt a pupil assignment plan at its op­
tion (E. 75).

The plan went into operation on May 1, 1961 and pur­
suant to it, ten Negro students were assigned to formerly 
all-wliite schools for September, 1961.

On April 30, 1962, after the plan had been in operation 
for almost a year, plaintiffs moved for further relief al­
leging that under the plan approximately nine Negro chil­
dren were assigned to the eleventh or twelfth grades in 
schools previously limited to attendance by white pupils; 
that all other eleventh and twelfth grade pupils were as­
signed on the basis of race; that those Negro children who 
sought reassignment in May, 1961 were subjected to tests 
which were not applied to white students in the eleventh 
and twelfth grades of the schools to which transfers were 
sought and were not applied to any other eleventh or twelfth 
grade students throughout the city. Plaintiffs further al­
leged that defendants were continuing to maintain and 
operate a biracial school system; continuing to maintain 
and enforce a dual scheme of school zone lines based on 
race; continuing to operate, support, sanction or sponsor 
extra-curricular activities limited by race and that the 
criteria of the plan were applied only to Negro pupils seek­
ing reassignment. Plaintiffs charged that the desegregation 
plan had not been used to bring about desegregation but 
had been used to maintain segregation. They further 
charged that the administrative remedy was inadequate to 
grant relief to which plaintiffs were entitled under the 
decision in the School Segregation Cases. Plaintiffs, there­
fore, prayed relief in the form of an order:

. . . enjoining defendants from continuing to maintain
and operate a segregated biracial school system in the
City of Atlanta, specifically enjoining defendants from



10

maintaining and operating ‘white’ and ‘Negro’ schools, 
and from assigning pupils to schools on the basis of 
race, and from assigning teachers to school on the 
basis of race, and from designating and constructing 
‘Negro’ and ‘white’ schools, and from maintaining a 
dual scheme or pattern of school zone lines based on 
race, and from supporting, approving, or sanctioning 
extra-curricular school activities limited to one race or 
the other, and from continuing to make any other dis­
tinctions in the operation of the public school system 
of the City of Atlanta which are based wholly on race 
and color.

Plaintiffs prayed in the alternative that the court require 
defendants to come forth with a new plan (R. 77-84).

Notice of Motion for May 2S, 1962 was appended to the 
Motion for Further Relief (R. 84-85).

Defendants responded to the motion by denial of each 
allegation contained therein. Defendants contended that the 
Motion was an attack upon the previous orders of the Court 
and the plan and that these orders and the plan were final 
and binding upon the plaintiffs (R. 118-122).

June 29, 1962, a month after the date set forth in the 
Notice of Motion and two months after the filing of the 
Motion for Further Relief, plaintiffs filed a Motion for Rule 
Nisi (R. 124). Plaintiffs set forth in support of the motion: 
that with the filing of the Motion for Further Relief plain­
tiffs gave notice to defendants that said motion would be 
brought on for hearing on May 28, 1962; that the May 28, 
1962 hearing date was discussed with the Court and found 
to be a date upon which the Motion could be heard; that 
on May 21, 1962 plaintiffs took the deposition of Superin­
tendent of Schools, Dr. J. W. Letson, and learned for the 
first time that counsel for defendants did not plan to appear 
for the hearing on the 28th because the hearing had not 
been placed on the court calendar for that date; that plain­



11

tiffs had not been notified by the Court that it could not 
hear the case on May 28th and that following the taking of 
the Superintendent’s deposition, counsel conferred with 
Judge Hooper and learned that the Motion had not been 
set for that date because plaintiffs’ counsel had not re­
quested a date for a hearing; that thereafter, on May 23, 
1962 the Motion was set for a hearing on June 2S, 1962 by 
order of the District Court; that two days prior to the 
hearing date plaintiffs’ counsel was advised that the hear­
ing would not take place on June 28th without having re­
ceived any notice of motion to continue the hearing or any 
order from the Court advising that the hearing had been 
continued; that on the hearing date plaintiffs’ counsel re­
ceived a copy of a letter to Judge Hooper and an affidavit 
of a physician attesting to the fact that one of defendants’ 
counsel was ill and would not be able to participate in any 
court hearings until after August 1, 1962. The motion 
further stated that plaintiffs did not question the fact of 
the illness of counsel, but that defendants were represented 
by other counsel capable of appearing in their behalf. Plain­
tiffs, therefore, prayed for an order setting the date for 
a hearing within thirty days from filing and service of the 
Motion, which was June 29, 1962 (R. 124-128).

This motion was heard July 5, 1962 (R. I ll , 36-72) after 
which plaintiffs submitted Proposed Findings of Fact and 
Conclusions of Law and a Proposed New Plan of Desegre­
gation (R. 131-150c).

The motion for further relief was finally heard on July 31, 
1962 (R. 151-233). The deposition of the School Superinten­
dent was received in evidence and additional oral and docu­
mentary evidence was presented on the operation of the 
plan. At the conclusion of the hearing, the District Court 
issued an order on September 14, 1962 (R. 234) setting 
the case down for further argument on additional ques­



12

tions (E. 235-236). Pursuant to this direction, further hear­
ing was held on October 30, 1962 (R. 238-288).

On November 15, 1962, plaintiffs’ Motion for Further 
Relief was denied. The Court’s opinion said:

“ . . . The Plan is eliminating segregation, but until 
it has completed its course there will of course still 
be areas (in the lower grades) where segregation 
exists. The Court is therefore at a loss to see how 
anything could be accomplished at this time by ‘an 
order enjoining defendants from continuing to main­
tain and operate a segregated, bi-racial school system,’ 
for the Court has already taken care of that in its 
decree of January 20, 1960. There is no evidence that 
defendants are ‘continuing to designate schools as Ne­
gro or white,’ nor that they are maintaining ‘racially 
segregated extra-curricular school activities.’ ”

“ The assigning of teachers and other personnel on 
the basis of race and color is not now passed upon but 
is deferred (as other courts have done) awaiting fur­
ther progress made in the desegregation of the stu­
dents” (R, 291).

* * # # *
“ Neither does the evidence show that defendants are 

maintaining a ‘dual system of school attendance area 
lines.’ Proximity to the schools in question is a factor 
considered by the defendant Board. It is not shown 
that defendants are acting arbitrarily in connection 
with the assignment of pupils in relation to their dis­
tance from the school. It does appear that area lines 
(where such exist) are sometimes changed for the sole 
purpose of relieving overcrowded conditions in the 
schools” (R. 292).

# #  ̂ #
“ . . . The Plan heretofore approved by this Court, and 
now under attack, has been administered fairly and 
in good faith by defendant Atlanta Board of Education, 
the local authorities have given utmost cooperation in 
maintaining law and order, and the number of students



13

being transferred each year from previously designated 
colored schools to previously designated white schools 
is increasing at an accelerated rate each year as the 
lower grades are reached. This Court feels that the 
public interests demand that the Plan now in operation 
be continued according to its terms and not be sum­
marily displaced by the new Plan of Desegration pro­
posed by plaintiffs.”

“ For reasons set forth above plaintiffs’ motion for 
further relief and plaintiffs’ motion to adopt a Pro­
posed New Plan of Desegregation are denied” (R. 
294-295).

Notice of Appeal was filed on December 14,1962 (R. 295).

Statement of the Facts 

Composition of the Atlanta Public School System

As of the end of the 1961-62 school year there were 113 
elementary schools in Atlanta and 22 high schools. Forty- 
one of the elementary schools, though no longer designated 
as such, were all Negro in attendance; 72 were all white. 
There was not a single case in which a Negro child attended 
school with whites in the elementary schools or a white 
child attended school with Negroes. Of the high schools, 
five were all Negro and 13 all white. There were 4 formerly 
all-white high schools to which 10 Negro students had been 
admitted in grades 11 and 12 for the 1961-1962 school year 
(one later withdrew) pursuant to the granting of requests 
for transfer under the plan (PI. Exh. 3, PI. Exh. 6, R. 88, 
100-101). At the beginning of the 1962-63 school year, there 
were 44 Negro students admitted to grades 10, 11, 12 in 
7 additional formerly all-white high schools (R. 208).

The Atlanta public school system is divided into 5 admin­
istrative areas, each under the direction of an area super­



14

intendent. Area One comprises virtually all of the Negro 
schools and the area superintendent is a Negro (R. 145,171).

The school population is approximately 106,000. Of this 
number approximately 57,500 are white and 48,000 are 
Negro. Thus, Negroes constitute approximately 45% of the 
total school population (R. 143, 86). There are approxi­
mately 3,836 teachers, including principals, in the regular- 
day schools. Of this number, 1,637, including principals, are 
Negro while approximately 2,199 teachers are white (PI. 
Exh. 3, R. 144,169).

Although there are only approximately 9,000 or 5% more 
white pupils in the Atlanta school system than Negro pupils, 
43 more schools have been allotted to white use than to 
Negro use. The white school population has a total of 89 
schools and the Negro school population, 45% of the total, 
has only 46 schools. Thus, although 45% of the school 
population is Negro, only 33% of the school buildings are 
allotted to Negro pupils. Consequently, there is serious 
overcrowding in many of the Negro schools (R. 143, 199). 
Because of the overcrowding in these Negro schools and the 
number of Negro teachers in proportion to white, a higher 
pupil-teacher ratio obtains in the Negro schools than in the 
white (R. 199). The Superintendent of Schools testified 
that as a school becomes overcrowded, a larger number of 
students are assigned to a given teacher. This situation 
is more of a problem in the Negro schools (R. 200).

The Superintendent ascribed the overcrowding in the 
Negro schools to the fact that most of the recent influx 
of students into the Atlanta system has been Negro (R. 199). 
Steps have been taken since September 1960 to relieve this 
condition by converting some of the elementary schools 
from white to Negro use. For example, the Mayson Ele­
mentary School was converted in January, 1961 (R. 109,



15

167). Attendance in that school is all Negro (R. 109). The 
Whitefoord Elementary School was converted in September 
1961 and in September 1962, the Margaret Fain Elementary 
School was converted to Negro use to relieve overcrowding 
in the Collier Heights School. The Key Elementary School 
was also converted in September, 1962 (R. 109-110, 143, 
167-168, 211-212). White students in attendance at a school 
when converted to Negro use are reassigned to another 
white school (R. 199). Negro students in an overcrowded 
Negro school are then reassigned to the newly converted 
school.

On the high school level, the Turner, Washington, Price 
and Howard High Schools, all Negro, are overcrowded while 
the Bass, Smith, Roosevelt, Walter George, Northside, 
Dykes, East Atlanta, North Pulton, Murphy and O’Keefe 
High Schools, all of which are white, are not overcrowded 
(R. 143). Notwithstanding, none of these white high schools 
have been converted to Negro use (R. 110) and nothing 
has been done to relieve the overcrowded condition at the 
Turner High School which was built to house 1,000 stu­
dents but whose enrollment at time of hearing on motion for 
further relief was 2,000 (R. 213). A formal written com­
plaint as to the overcrowded condition at Turner was lodged 
with the Board (PI. Exh. 12, R. 217) but no action was taken 
by the Board and no reply was made (R. 214). Received in 
evidence was Plaintiffs’ Exhibit 7, an enrollment chart 
showing that many of the white high schools were under­
enrolled and that many of the Negro children, therefore, 
could be easily relocated (R. 216). There were plans to 
install mobile classroom units at the beginning of the 1962- 
63 school year to relieve the overcrowding in the Negro 
high schools, but there was strenuous objection to this in 
the Negro community (R. 144). A  proposed school bond 
issue of $26,000,000 provided for the allocation of $16,000,-



16

000 for the building of Negro schools (R. 144, 169) but, in 
the meantime, the overcrowded conditions of the Negro 
high schools exist and no steps have been taken to relocate 
Negro pupils in the white high schools. Indeed, since 1960 
two white high schools, Dykes and Therrell, have been 
opened, but there has been no new Negro high school built 
(R. 110-111).

Initial Assignment of Pupils

Every Negro child is assigned initially to a Negro school 
and every white child to a white school. In 1960, before the 
plan went into effect, attendance area lines were drawn for 
the individual schools by each area superintendent in co­
operation with other school officials. The present lines are 
drawn as they were in 1960 (R. 89-91), i.e., separate at­
tendance area lines for Negro and white elementary schools 
are drawn and Negroes are not free to attend white schools. 
The lines drawn on the high school level follow roughly 
the same pattern as the elementary school lines, i.e., there 
are separate lines for the Negro and white high schools. 
There has been no attempt to draw lines that would be 
applied irrespective of the race of the pupils living in a 
particular attendance area (R. 91, 195-196). New students 
coming from elementary school to high school are assigned 
to the high school which has traditionally served their 
area. Negro students are assigned to Negro high schools 
and white students to white high schools according to the 
“ feeder system” that has traditionally existed whereby cer­
tain elementary schools feed into certain high schools. 
Thus, the initial assignment of students to high school is 
the same as it was in 1960 before the plan went into effect 
and students may transfer from the school of their initial 
assignment only on request, pursuant to the pupil assign­
ment plan (R. 92, 197-198).



17

Practice Regarding Teachers and Other School Personnel

The application form for a teaching position in an At­
lanta public school and for state certification (PI. Exhs. 10 
and 11) request the photograph and/or the race of the ap­
plicant (R. 185). Teachers in the system are elected by the 
Board of Education and assigned to various schools by 
the Superintendent and the administrative staff. Negro 
teachers are assigned to Negro schools and white teachers 
to white schools. Each white school has a white principal 
and each Negro school a Negro principal.

On the administrative level, there is one Negro area su­
perintendent; there are two Negroes in pupil personnel 
service and a number of Negro resource teachers. The 
Negro area superintendent has no white schools under his 
jurisdiction. The pupil personnel teachers are part of the 
central office staff and work in the area of pupil problems, 
including emotional problems and related areas. However, 
the two Negro pupil personnel service people take care of 
Negro school children primarily. The Negro resource per­
sonnel are supervisors but have no supervisory function 
over white schools. The resource teachers are also respon­
sible for teaching in-service training courses for teachers. 
In some cases, Negro and white teachers meet jointly in 
the in-service training courses but there is no particular 
pattern; the traditional separation of white and Negro 
teachers in in-service training courses is in the process of 
being changed but the change has not been 100 per cent 
(R. 106-109).



18

The Board’s Practices and Procedures 
Under the Plan in 1961

Prior to the commencement of procedures under the plan 
in May, 1961, no formal announcement or written com­
munication was sent to the parents of children in grades 
10,11 and 12 advising them of their right to transfer under 
the plan by either the Superintendent or the Board (R. 93, 
172). Applications for transfer were secured by 301 stu­
dents from May 1-15, 1961 (PL Exh. 6). The application 
form requested the race of the student seeking transfer 
(PL Exh. 1).

One hundred and thirty-four Negro students and one 
white student actually returned their application forms and 
applied for transfers. The white student, Sarah Melkild, 
sought transfer from Northside High School to Dykes High 
School because of the imminent admission of Negroes to 
Northside (R. 138, 187). Of the 134 Negro students who 
requested transfer, only ten were admitted to four formerly 
all-white high schools, Murphy, Brown, Grady, and North- 
side. These ten were selected as follows: Those who re­
quested transfer were given a general achievement test 
periodically given in the system, known as “ The School 
and College Aptitude Test, Series Form 2A.” On the 
basis of the scores made on that test, 47 were given a sec­
ond achievement test, not routinely given in the system, 
known as “ The School and College Aptitude Test, Series 
Form 2B.” The 47 selected for the second test were those 
whose scores either equalled or exceeded or came within 
10 percentile points of the grade level in the school to which 
they sought transfer or whose score exceeded the national 
median. This second test was more of an intelligence test 
than an achievement test. It was not given to the white 
students in grades 11 and 12 at the four schools to which 
Negroes were admitted. Those who had been eliminated on



19

the basis of the first test were reassigned to the schools 
they were already attending which, in each case, was a 
Negro school. Approximately one half of the 47 who took 
the second test were eliminated on that basis and on the 
basis of their proximity to the schools, their reasons for 
requesting transfer and the availability of space and cur­
ricular offerings. The other half was given a “ personality 
interview” designed to determine the student’s probable 
success or failure in the new school. Of the ten ultimately 
selected, two were assigned to Murphy High School, three 
to Brown, two to Grady and three to Northside. The re­
quest for transfer of the white student was denied (R. 95- 
102, 137-139, 229, PI. Exhs. 4, 5, 6)..

The evidence established that the criteria of the plan 
were applied to only those Negro students who sought 
transfer to white high schools and not to other 11th and 
12th grade students in the high schools to which transfer 
was sought nor to other 11th and 12th grade students 
throughout the system. The only instance in which any 
test was given to a white child seeking transfer was that 
of the Melkild girl (R. 142, 187-188).

Thirty-eight of the students whose requests for transfer 
were denied pursued the administrative remedy under the 
plan. Their requests were denied by the Board. They then 
appealed to the State Board of Education which remanded 
the case to the City Board of Education for additional rea­
sons for rejecting the requests. Upon remand, these reasons 
were supplied, and all of the appeals were ultimately denied 
by the State Board of Education (R. 102, 103, 141, 186).

The Board’s Practices and Procedures in 1962

For the 1962-63 school year, approximately 300 Negro 
students actually sought transfer to the 10th, 11th and 12th 
grades. Of the requests, 44 were granted for seven addi­



20

tional formerly all-white high schools. Again, no formal 
announcement that transfers could be requested was made 
by the Board or Superintendent (R. 188, 105-106).

The second special test given to the original applicants 
was not given to those who sought transfer in 1962. In­
stead, the scores of the test routinely given throughout the 
school system were used. These students were evaluated 
on the basis of their prior academic record and test scores 
(same criteria as in 1961) and proximity to school. A  por­
tion of the applicants were again required to meet with an 
interviewing committee after which their recommendations 
were acted on by the Superintendent (R. 103-106, 139-141, 
188).

During the May 1-15, 1962 period no white students ap­
plied for transfer. But the Superintendent testified that a 
number of “ informal” requests for transfer to other white 
schools were received from white students during 1962. 
There were 50 to 100 such “ informal” requests. Informal 
requests were defined as requests not occurring between 
May 1st and May 15th, but rather throughout the entire 
school year. It was the Superintendent’s judgment that 
the number of “ informal” requests received from Negro 
students for transfer to other Negro schools exceeded the 
number of such requests received from white students (R. 
189).

The criteria specified in the plan for evaluating requests 
received from May 1st to May 15th were not applied to 
students seeking informal transfers. Instead, these re­
quests were evaluated on the basis of the reasons given 
by the student for seeking transfer, the student’s educa­
tional ability, and the capacity of the school to which trans­
fer was sought (R. 189-190).

Thus the criteria of the plan were applied formally only 
to those Negro students who sought transfer to white



21

schools from May 1st to May 15th. With the exception of 
the criteria of proximity to schools and availability of 
transportation, they were not applied to new students enter­
ing the school system for the first time on the high school 
level nor to other white students (E. 189-194; 161-162).

Extra-Curricular Activities

City-wide or area-wide extra-curricular activities such 
as the Science Fair or band contest were sponsored in 
separate competitions for Negro and white students during 
the 1961-62 school year after the plan went into effect 
(E. 109). In fact, integration of extra-curricular activities 
occurred only in the previously all-white high schools to 
which Negroes had been admitted and then only to the 
extent made possible by the small number of students ad­
mitted to each school. Activities specifically mentioned 
were the honor banquets given each year in each high 
school for honor students with outstanding scholastic rec­
ords and P. T. A. meetings to which attendance by the 
parents and friends of those Negro students who had been 
admitted was open.

Attendance at city-wide high school football games was 
integrated. There was no evidence that any other extra­
curricular activities had been integrated (E. 200-203).

Specifications of Error

1. The court below erred in refusing to enjoin defen­
dants’ administration of the pupil assignment plan in light 
of the evidence showing that: a) defendants apply the 
criteria of the plan only to Negro students seeking trans­
fer to white schools between May 1 and May 15; b) the 
plan has not resulted in desegregation of the grades to 
which it was limited since all prior assignments in these



22

grades as well as all other grades remained the same; 
c) of more than 400 Negro students who sought transfers 
to white high schools in two years only 54 were granted 
transfers.

2. The court below erred in refusing to enjoin defen­
dants’ continued operation of a segregated biracial school 
system in light of the evidence showing that defendants:
a) continue to maintain “white” and “ Negro” schools;
b) continue to draw school attendance area lines separately 
for Negro and white schools; c) overcrowd Negro schools 
while many white schools are under-enrolled in which 
Negro students could be easily relocated; d) assign teachers 
and other school personnel according to race; e) sponsor, 
support and sanction extracurricular school activities 
limited to one race or the other.

3. The court below erred in refusing to require defen­
dants to come forward with a new plan whereby all stu­
dents would eventually be reassigned on some reasonable, 
nonracial basis. The court also erred in refusing to con­
sider planitiffs’ suggested plan of desegregation.

4. The court below erred in refusing to enjoin assign­
ments of school personnel on the basis of race and color.

5. The court below erred in refusing to enjoin racial 
limitations on extracurricular activities and all other dis­
tinctions in the school system based wholly on race and 
color.



23

A R G U M E N T

I.

The Criteria of the Plan Approved by the Court Be­
low and Instituted by Defendants Are Applied Only to 
Negroes Seeking Transfer After Initial Assignments by 
Rare Using Dual Zone or Attendance Areas. This Ad­
ministration of the Plan Contravenes Prior Decisions 
of This Court and the Courts of Other Circuits.

The evidence clearly established the existence of the 
traditional pattern of initially assigning pupils by race 
on the basis of separate area attendance lines or zones for 
Negroes and whites and only then reassigning some pupils 
on the basis of applications for transfer under the plan 
(R. 89-92; 195-198). Those who sought transfer during 
the May 1st to May 15th period specified in the plan were, 
with one exception, Negro students who had previously 
been assigned to the “ Negro” high schools that in accord­
ance with Atlanta’s “ feeder system” had traditionally ab­
sorbed Negro students entering high school from the ele­
mentary schools. These Negro students were subjected to 
tests not given to white students in the corresponding 
grades of the schools to which they sought transfer and the 
massive array of criteria for considering whether the re­
quested transfers would be granted were applied solely to 
these Negro applicants.1 Though the second special test

1 Though the first test given to the applicants for transfer in 1961 was 
given to the white student who sought transfer (R. 97), it does not appear 
that her application was ever really considered on the basis of the plan’s 
criteria notwithstanding the assumption implicit in the questioning of the 
school superintendent by plaintiffs’ counsel:

Q. In addition to that white student who applied for a transfer from



24

given alone to the Negro students who applied in 1961 was 
discontinued by the Board in 1962, the practice of requiring

Northside, I believe it was, because Negroes were being admitted, do you 
recall that case? A. Yes.

Q. All right. Are there any other white students to whom you have 
applied these criteria of the plan? A. No (E. 187-188).

For at a later point in the record [the October 30, 1962 hearing], this addi­
tional colloquy occurred between plaintiffs’ counsel and the court:

Mrs. Motley: . . . Now there was one white student to whom the plan 
was applied who protested against negroes being admitted to that 
school, but that is obviously a circumstance which would not ordinarily 
occur, and her application was denied, which showed that the plan 
operates only against negro students which—

The Court: Let me ask you a question about the Melkild case. In 
that case—have you read the pleadings in that case.

Mrs. Motley: Yes, sir.
The Court: Did you observe that Miss Melkild put her alleged right 

to transfer entirely on racial grounds?
Mrs. Motley: Yes, sir.
The Court: Do you think that she should have had a right to transfer?
Mrs. Motley: I certainly do not, and the transfer should have been 

denied on that ground alone without even any reference to the plan, 
because obviously no transfer, as the Fifth Circuit ruled in the Boson 
versus Eippy ease, can be predicated on race.

The Court: Did you read my opinion denying her application?
Mrs. Motley: Yes, sir. I did.
The Court: Did you see in there where I said that it was based 

entirely on racial grounds?
Mrs. Motley: Yes, sir.
The Court: And was therefore denied?
Mrs. Motley: That’s right.
The Court: Then what is—
Mrs. Motley: That’s why I say the plan—
The Court: What is your complaint on that?
Mrs. Motley: That’s exactly my point. The plan has nothing to do 

with her ease. She would have been denied the transfer whether we 
had this plan or not, so that the plan is operated only, operates only 
against negroes seeking transfer to white schools (K. 247-249).

See also the court’s statement at an earlier hearing, that of July 5, 1962:
“ In that ease her [the Melkild girl] motion to transfer was denied be­

cause it was not made pursuant to the plan. Her motion for transfer W'as 
made expressly and intentionally upon the sole ground that Negroes were 
admitted, and that’s the reason that her transfer was turned down (E. I l l ,  
40-41).



25

only Negro students to subject themselves to the evaluative 
standards of the plan remained.2

This conclusion is irresistible on the face of this record. 
It is further buttressed by the evidence of “ informal trans­
fers” given to both white and Negro students at other 
times throughout the school year. These applicants were 
not considered under the plan’s criteria; their requests 
were either granted or denied as they had been in former 
years without considering the plan at all (R. 189-194).

Thus, the pupil assignment plan was used for one pur­
pose only: to circumscribe the right to transfer of Negro 
students to “white” schools during the May Ist-May 15th 
period and to limit the number of such transfers that would 
be granted since one or more of the numerous criteria could 
always be applied in such a way as to exclude an applicant.3

Hence, evidence of the practice of initial assignment by 
race, the use of dual zones, and discriminatory application 
of the plan fairly surges from this record. As this Court 
has held many times, this practice is not compliance with 
the duty to desegregate; it is not even a “ reasonable start 
toward full compliance” with the law as required by the 
School Segregation Cases. Gibson v. Board of Public In­
struction of Dade County, Florida, 272 F. 2d 763 (1959); 
Mannings v. Board of Public Instruction of Hillsborough

2 The school superintendent testified that the criteria of proximity to 
schools and availability of transportation listed in the plan were applied to 
new students entering the system for the first time on the high school levels 
involved in the plan. These were the only two criteria that he was sure had 
been applied to these students (R. 194). Obviously these criteria would be 
applied as a matter of course to any new students entering the system whether 
or not a pupil assignment plan was in existence.

3 The criteria were in fact applied to exclude 124 out of 134 applicants 
in 1961 and 256 applicants out of 300 in 1962 (R. 100; 188). Thus in two 
years of operation only 54 Negro students out of 434 applicants have been 
found worthy of transfer under the plan.



26

County, Florida, 277 F. 2d 370 (1960) ; Boson v, Hippy, 285 
F. 2d 43 (1960) ; Augustus v. Board of Public Instruction of 
Escambia County, Florida, 306 F. 2d S62 (1962); Bush v. 
Orleans Parish School Board, 308 F, 2d 491 (1962).

The Bush case is a full and clear exposition of the con­
stitutional limitations involved in the application of a 
desegregation plan by school authorities. There, as here, 
there was evidence that “ the Orleans Parish School Board 
maintained virtually complete segregation in fact” Bush, 
supra, p. 498, because the District Court had found:

‘ . . . that the Board, instead of allowing children enter­
ing the first grade to make an election as to the schools 
they would attend, assigned all children to the racially 
segregated schools in their residential areas. Then, 
after being so assigned, each child wishing to exercise 
his right to elect pursuant to the court’s plan of de­
segregation was subjected to the testing program. No 
children other than first grade were required to take 
the tests. . . . This failure to test all pupils is the 
constitutional vice in the Board’s testing program. 
Bush, supra, p. 495.’

The evidence in Bush showed that four children out of 134 
Negro children who applied in 1960 were admitted to two 
white schools and only 8 out of 66 that applied in 1961. Con­
sequently, this Court stated that:

“ The evidence fully supports the findings of the district 
court. Judge Wright found:

‘To assign children to a segregated school system and 
then require them to pass muster under a pupil place­
ment law is discrimination in its rawest form.’

Even more strongly, Judge Ellis found:
‘In New Orleans the statute [here the plan] was used 
solely for transfer, rather than assignment and trans­



27

fer as required by the statute. . . .  It does no good 
to say that the Pupil Placement Law is applied solely 
to transferees without regard to race when the proce­
dure is so devised that the transferees are always 
Negroes . . . ’ ”  Bush, supra, p. 498.

This Court noted further that even though, “ [t]he School 
Board insists [as is insisted here] that the plan was applied 
to both white and Negro children” nevertheless, “when, 
purportedly as a vehicle for desegregating, the Board ap­
plied the Act to Negro first graders only after they had 
already been assigned to segregated schools in a dual school 
system, the Board used the Act discriminatorily.” Id., p. 
499. Hence, this Court concluded that “ [t]he key to the 
problem is the elimination of dual or biracial school zones.” 
Id., p. 501. Cf. Augustus v. Board of Public Instruction, 
supra, p. 869:

There cannot be full compliance with the Supreme 
Court’s requirements to desegregate until all dual 
school districts based on race are eliminated.

These limiting principles have also found approval in 
every other circuit that has considered the problem. See 
the recent opinions of the Sixth Circuit in Northcross v. 
Board of Education of City of Memphis, 302 F. 2d 818 
(1962) and of the Fourth Circuit in Marsh v. County School 
Board of Roanoke, 305 F. 2d 94 (1962) and Green v. School 
Board of City of Roanoke, 304 F. 2d 118 (1962).

These authorities dispel all doubt that the administra­
tion of the pupil assignment plan by the Atlanta school 
officials does not conform to constitutional requirements.



28

II.

The Pupil Assignment Plan Does Not Suffice to Con­
vert Atlanta’ s Dual Biracial School System Into a Uni­
tary Nonracial System. The Latter Is Required by the 
Decision in the School Segregation Cases, the Decisions 
o f  This Court and the Courts o f  Other Circuits.

In the first School Segregation Case, the United States 
Supreme Court said that segregation with the sanction of 
law deprived Negro children of “ some of the benefits they 
would receive in a racially integrated school system.” 
Brown v. Board of Education, 347 U. S. 483, 494 (1954) 
(emphasis supplied). In the implementation decision a year 
later, the Court enjoined upon district courts the duty to 
“ consider the adequacy of any plans the defendants may 
propose . . .  to effectuate a transition to a racially non- 
discriminatory school system.” Brown v. Board of Edu­
cation, 349 U. S. 294, 301 (emphasis supplied). Thus the con­
stitutional right declared in the School Segregation Cases 
is the right of attendance in a school system which, in its 
entirety, is not based on racial considerations. Therefore, 
any plans proposed by school authorities must come to grips 
with the problem of converting the school system from one 
where racial considerations are predominant to one in 
which they are irrelevant.

Manifestly, the plan as administered by the Atlanta 
school officials has not done this. The evidence shows that 
approximately 48,000 or 45% of Atlanta’s school popula­
tion is Negro (R. 86, 143) yet only 48 Negro students were 
in classroom attendance with white students at the start 
of the 1961-1962 school year. With only 9,000 more white 
students than Negro in Atlanta’s schools, 43 more schools



29

are allotted to white use than to Negro use. Thus, only 
33% of the school buildings serve the 45% of the school 
population that is Negro (R. 143). Because of these facts, 
overcrowding in the Negro schools is the rule not the 
exception and the only steps taken to relieve this condition 
have been the conversion of a few elementary schools 
formerly all-white to all-Negro by transferring (though 
not under the plan), all of the white students to other 
“ white” schools (R. 109-110, 143; 199; 211-212), or the 
installation of mobile classroom units on the high school 
level at the beginning of 1962-63 rather than the relocation 
of Negro students in these “white” high schools (R. 144). 
The record further reveals that nothing was done by the 
school officials to alter the situation of overcrowding at the 
Turner High School which had burgeoned to twice its 
capacity (R. 217) and that though two “white” high schools 
had been built since 1960 (R. 110) the only action con­
templated by the board to correct the condition in the high 
schools was a proposed bond issue a little more than half 
of which was allotted for “ Negro” school construction (R. 
144, 169). All in all, the record reveals a determination by 
the school officials to maintain as nearly as possible, the 
traditional separation between the white and Negro school 
population.

Dovetailing with these facts were others showing that 
on the level of school personnel, there are fewer teachers 
in proportion to their students in the Negro schools than 
in the white (PI. Exh. 7; PI. Exh. 8; R. 199), that Negro 
teachers are assigned only to “ Negro” schools (R. 106) 
so that but for the small number of students in the white 
high schools to which transfers have been granted under the 
plan, no Negro students are taught by white teachers and, 
of course, no white students are taught by Negro teachers 
anywhere in the system. This last fact is only a parcel



30

of the pattern of which other parcels are: the fact that 
the single Negro area superintendent has no white schools 
under his jurisdiction; the fact that the two Negroes in 
pupil personnel service work with Negro children primarily; 
the fact that the Negro resource personnel have no super­
visory function over white schools (E. 107-108).

Appellants submit that faced with this evidence of a con­
tinuing system-wide discriminatory policy by appellees, 
the plan adopted by them and approved by the district 
court has not proved adequate to the task of desegregating 
Atlanta’s school system “with all deliberate speed.” The 
view that appellants take of the plan adopted by the Atlanta 
school officials in light of the evidence defining the course 
of its application, is the same as that taken by this Court 
in Gibson v. Board of Public Instruction of Dade County, 
Florida, 272 F. 2d 763, 766 (1959) where in speaking of the 
Florida Pupil Assignment Plan, this Court said:

. . . we cannot agree with the district court that the 
Pupil Assignment Law, or even that the Pupil Assign­
ment Law plus the Implementing Eesolution, in and 
of themselves, met the requirements of a plan of de­
segregation of the schools or constituted a ‘reasonable 
start, toward full compliance’ with the Supreme Court’s 
May 17, 1954, ruling. That law and resolution do no 
more than furnish "the legal machinery under which 
compliance may be started and effectuated. Indeed, 
there is nothing in either the Pupil Assignment Law 
or the Implementing Resolution clearly inconsistent 
with a continuing policy of compulsory racial segrega­
tion.

This is particularly true in this case when the manner of 
granting transfers under the plan is considered. The opin­
ion of the Court of Appeals for the Sixth Circuit in North- 
cross v. Board of Education of City of Memphis, 302 F. 2d



31

818, 823 (1962) is a complete answer to appellees insistence 
that the plan is adequate to accomplish desegregation:

These transfer provisions do not make of this law 
[Tennessee Pupil Assignment statute] a vehicle to re­
organize the schools on a non-racial basis. Nor has the 
practice for four years under the law been in the direc­
tion of establishing non-racial schools. Negro children 
cannot be required to apply for that to which they are 
entitled as a matter of right (emphasis supplied).

Cf. Dove v. Parham, 282 F. 2d 256, 258 (8th Cir. 1960): 
“ Standards of placement cannot be devised or given applica­
tion to preserve an existing system of imposed segrega­
tion.”

Moreover, appellees are patently wrong in their conten­
tion (R. 174, 187)—concurred in repeatedly by the District 
Court (R. I ll, 42-43, 46, 47, 50, 52, 54, 55, 56, 67; R. 261)— 
that appellants have no standing to complain of the practice 
under the plan absent a specific individual complaint that 
an application for transfer was rejected on racial grounds. 
Just as appellants should not be required at the threshold 
“ to apply for that to which they are entitled as a matter of 
right,” Northcross, supra, neither should relief be predi­
cated upon individual complaint about rejection under the 
transfer provisions of a plan fulfilling “the behind-the-face 
function of preserving segregation,”  Bush, supra, p. 499, 
when, constitutionally, “plaintiffs [are] . . . entitled to 
affirmative action by the Board of Education to effectuate a 
policy of desegregation.” Mannings v. Board of Public In­
struction, 277 F. 2d 370, 373.

In sum, appellants contend that this case is within the 
ambit of Northcross v. City of Memphis, supra, and that 
the Sixth Circuit’s conclusion on similar facts that:

The admission of thirteen Negro pupils, after a 
scholastic test, out of thirty-eight who made applica­



32

tion for transfer, is not desegregation, nor is it the in­
stitution of a plan for a non-racial organization of the 
Memphis school system. 302 F. 2d 824.

is apposite here.

III.

The Pupil Assignment Plan Is Only a Start Toward 
Desegregation Subject to Modification in the Light of 
Developing Circumstances; Plaintiffs May Propose Sug­
gested Modifications.

In this Court’s recent opinion in Ross v. Dyer (No. 19912, 
Dec. 28, 1962, not yet reported) involving the application 
of the brother-sister rule in the Houston elementary 
schools, this Court stated at p. 6:

We emphasize this at this point since it is now clear 
that even though the 1960  order prescribes a plan in 
specific detail, this is not the end of the matter. The 
District Court of necessity retains continuing jurisdic­
tion over the cause. That means that it must make such 
adaptations from time to time as the existing develop­
ing situation reasonably requires to give final and 
effectual voice to the constitutional rights of Negro 
children. Our most recent Bush v. Orleans Parish 
School Board, 5 Cir., 1962, 308 F. 2d 491, modified on 
rehearing, 308 F. 2d 503 affirms this as does Augustus 
v. The Board of Public Instruction of Escambia County, 
Florida, 5 Cir., 1962, 306 F. 2d 862, 869. (Emphasis 
added.)

Thus, clearly and forcefully, this Court has restated the 
basic premises of the second Brown decision, 349 U. S. 294 
(1955): that whatever plans are proposed by local school 
officials to make the transition from segregated to desegre­
gated schools are only a start toward desegregation, that 
the burden for showing that additional time is necessary



33

to make a complete transition rests on these same school 
authorities, and that plans may be modified to accomplish 
full desegregation as quickly as is feasible in a given situ­
ation. Of necessity, the direction to district courts to con­
sider the adequacy of any plans proposed include the direc­
tion to consider modifying those plans where the facts and 
circumstances so require.

These premises were not accorded their full significance 
by the court below in its treatment of the evidence presented 
to it of the misapplication and consequent failure of the 
existing plan to promote the required objective of full de­
segregation. Indeed, the court’s position was that since 
the plan had been approved and had been in operation for 
two years and since plaintiffs’ appeal from the court’s order 
of March 9, 1960 denying their motion to have the plan 
commenced for the 1960 school year (R. 63) had been dis­
missed on plaintiffs’ own motion (R. HI, 30, 34), the plan 
should not be altered at least absent a showing of facts to 
make acceleration of desegregation feasible, a showing 
which in the court’s view, plaintiffs had not made (R. 243- 
244; 245-246).4

But the mere fact that a plan had been approved [after 
extensive objections by the plaintiffs (R. 25-26; 45)] and 
put into operation “ is not the end of the matter.” Ross v. 
Dyer, supra. A  plan is only a beginning, a means to the 
end of full desegregation. This is not any less true even

4 Considering the record in toto, the court’s view was very close to that 
of defendant’s counsel who stated at the July 31, 1962 hearing that, “ I  take 
the position as far as this plan is concerned and as far as any broadside 
attack on it, that it’s final” (E. 156). Eor example, in the course of extensive 
discussion at the October 30, 1962 hearing as to whether the plan in the 
court’s language, should be “speeded up,”  the court commented: “ I  agree
with you (the defendants), and the results obtained m Atlanta have been 
very highly satisfactory . . .  I  have personally felt that that was more im­
portant than just a little bit more speed” (E. 287). And again, “ I ’ll take 
things as they are now” (E. 288).



34

if plaintiffs’ withdrawal of its earlier appeal did signal 
assent to the institution of the plan as the objections that 
were filed and the reasons for withdrawing the appeal spec­
ified in the amended motion to dismiss (E. I ll , 34) clearly 
show it did not. Whatever interpretation the court below 
placed on plaintiffs’ withdrawal of their appeal, they cer­
tainly cannot be conceived of as having assented to the 
administration of the plan as shown by the evidence. And 
notwithstanding the court’s opinion to the contrary, the 
facts revealed by this record support the need for accelerat­
ing the pace of the transition to a desegregated school 
system.

Plaintiffs, therefore, were justified in proposing an ac­
celerated plan of desegregation. As this Court said in 
Augustus v. Board of Public Instruction, supra, p. 869: 
“ Further amendment to the plan may be suggested by the 
plaintiffs . . . ” The district court’s refusal to consider 
plaintiffs’ suggested plan was in light of the Augustus 
opinion, erroneous. Equally erroneous was its ruling that 
plaintiffs were not entitled to any of the relief sought, for 
a clearer case on the evidence of continued segregation 
cannot be imagined while, on the contrary, defendants have 
not sustained the burden of justifying their continued frus­
tration of plaintiffs’ constitutional rights.



35

CONCLUSION

W h e r e f o r e , appellants respectfully pray that the judg­
ment below be reversed and the cause remanded with direc­
tions for the submission of a new plan of desegregation 
which shall provide for the reassignment of all students 
through the coalescence of the dual school zones, the re­
assignment of teachers and other school personnel on non- 
racial grounds, the elimination of discrimination in extra­
curricular activities, and the abolition of all other distinc­
tions based on race in the operation of the Atlanta public 
school system.

Respectfully submitted,

E. E. M o o r e  

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

D o n a l d  L. H o l l o w e l l

Cannolene Building (Annex) 
859% Hunter Street, N. W. 
Atlanta, Georgia

C o n s t a n c e  B a k e r  M o t l e y  

J a c k  G r e e n b e r g

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

N o r m a n  A m a k e r  

A .  T. W a l d e n  

Of Counsel



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