McSwain v. County Board of Education of Anderson County, Tennessee Transcript of Record

    Vol. II

No.

In The

UNITED STATESCOURT OF APPEALS
For the Sixth Circuit

JOHEATHER McSWAIN, an infant, by Allen McSwain, his 
father and next friend; JAM ES DICKIE, an infant, by Clif­
ford Dickie, his father and next friend; WILLIAM DICKIE 
an infant, by Clifford Dickie, his father and next friend; 
LILLIAN WILLIS, an infant, by O. W. WILLIS, her father 
and next friend; SHIRLEY WILLIS, an infant, by O. W, 
Willis, her father and next friend; and ALLEN McSWAIN; 
MRS. W. V. McSWAIN; CLIFFORD DICKIE; MRS. MARY 
DICKIE; O. W. WILLIS

Appellants
versus

COUNTY BOARD OF EDUCATION OF ANDERSON COUN­
TY, TENNESSEE, consisting of J . M. BURKHART, C. L. 
BROWN, DR. J . M. COX, JACK DUNCAN, O. C. MAYES, 
THOMAS A. SHARP, and J . M. SISSON, as board members, who 
together, as such, constitute the County Board of Education of 
Anderson County, Tennessee; FRANK E. IRWIN, Superintendent 
of Schools of Anderson County, Tennessee, and D. J .  BRITTAIN, 
Principal of Clinton High School, Clinton, Tennessee

Appellees

Appeal from the United States District Court for the 
Eastern District of Tennessee, Northern Division

TRANSCRIPT OF RECORD

Z. ALEXANDER LOOBY, 
Nashville, Tennessee 

AVON N. WILLIAMS, JR ., 
CARL A. COWAN, 

Knoxville, Tennessee 
Counsel for Appellants.

W. B. LEWALLEN,
SIDNEY DAVIS,

Clinton, Tennessee 
JOHN T. GILBERTSON,

Knoxville, Tennessee 
Counsel for Appellees.



TRANSCRIPT OP TESTIMONY (CONT!P»)

WITNESSES? DIRECT CROSS REDIRECT RECROSS

Stipulation - 0«W„Willis 228

Helen Jarnigan 229 21+9
Prank E„ Irwin 278 281 295 295
Wilson New 296 305 310

Otis Hogue 31 2 323 331 332
Norma Jean May 332 336

Eugene Pox 337 3^1
Clyde McNew 3l+5 3i+7
Bill Smith 3l+9 35l 351
Hubert Robbins 352 35k- 355
Von Buhl 355 357
Glenn Smith 358 360

Stipulation - Bill Dennis 360

Stipulation -Charlie Smith 360

Barbara Hogan 361

Sue Goodykontz 362

Shirley Hale 363

Jean Lewis 365
June Irwin 367

Nina Johnson 369

Stipulation - 5 witnesses 371
Jo A. Barksdale 371 377 382

Harry Carter 383 388 392



ii

EXHIBITS?

I N D E X
Page

Defendantsf N0o 1 - Map of Anderson County, Tenn. 282

Defendants5 No* 2 - Records of Superintendent
288- Irwin

Defendants * No* 3 - Pamphlet "General Curriculum,
316* Senior High Schools, Knox 

County, Tennessee*"

Certificate of Court Reporter 
Memorandum Opinion of the Court 

Judgment
Notice of Appeal 
Cost Bond on Appeal
Designation of Contents of Record on Appeal 
Order Extending Time to Pile Record on Appeal 
Certificate of Clerk of U„ S„ District Court

393

39^

1+23

1+25

1+26

1+2 ?

1+28



228

SEC PHD DAY OF TRIAL February li}., 19^2

(Whereupon, the Court convened at 9^00 o Jclock a,m, 

pursuant to ye a terday!s adjournment.)

THE COURT? Are w© ready to proceed?

MR. LOOBY? We are, if your Honor please0

If the Court please, we have Reverend 0. W. Willis, 

one of the plaintiffs!, the father of two of *the infant 

plaintiffs, who was one of those present in the group that 

called on the principal and superintendent. He will testify 

substantially the same as has previously been testified by 

Mrs. MeSwain and others. If we can agree to that, we 

won51

THE COURT? Can you agree?

MR. LEWALLENs Yes, your Honor. That is, he will 

testify to the same material facts that Mrs, MeSwain testi­

fied to?

MR. LOOBY? Yes.

MR. LEWALLENs Except those facts concerning Mrs. 

MeSwain*s family personally?

MR. LOOBY? Yes.

MR, LEWALLENs Yes.

MR. LOOBY? We were talking with reference to the 

conferences with the principal and the superintendent.

MR. LEWALLEN? Very good. We accept that.

THE COURT? All right.



Proceedings 229

MR, LQOBYs And with reference to the inconveniences, 

of course, of getting up earlier that would necessitate 

making the trip.

We also have his daughter, one of the infant plain­

tiffs, who would testify that she went with them to the 

principal's office on the day in question, I don't think 

there will he any dispute as to that,

MR, LEWALLENs Your Honor, we will dispute that, 

may it please the Court, on the grounds she wasn’t in the 

office where the principal was, that she wasn’t in the 

superintendent's office, and we couldn’t agree to stipulate 

on that matter,

MR, LOOBYs I said that all she would testify is 

that she went to the principal's office, Nor did I say 

anything about going to the superintendent’s office. All 

she would testify is she went there with this group for 

purpose of enrolling. She did not go to the superintendent’s 

office, and I wasn't offering to prove that,

MR, LEWALLENs Your Honor, we can’t stipulate on 

that matter, may it please the Court,

MR, LQOBYs We will put her on to show that she 

went there,

THE COURT2 All right,

HELEN JARNIGAN

a witness called by and on behalf of the Plaintiffs, being



Testimony of Helen Jarnigan 230

first duly sworn* was examined and testified as follows?

DIRECT EXAMINATION

BY MR. COWAN?

Q This is Miss Helen Jarnigan?

k Helen Jarnigan.

Q Speak loud enough so that the Judge can hear you and

all of counsel.

Where do you live?

A I live in Clinton* Tennessee.

a What county is that in?

A Anderson County.

Q Uhat street do you live on? What is your address?

A 10i|. School Street.
a Do you know where the Clinton High School is?

A

Q

Yes.

How far do you live from the Clinton High School?

A About five blocks* about five or six blocks.

Q. Where do you go to school?

A Austin High School.

Q Where is Austin High School located?

A In Knoxville* Tennessee.

a ■What county is that in, if you know?

A Knox County.

Q Why are you going to school in Knox County?

A Because we do not have a school in Anderson County



Testimony of Helen Jarnigan 231

for* Negroes.
Q How do you travel from Clinton to Knoxville?

A We now have a school bus.
Q, Before that time, what did you have?

A We had to ri.de a commercial bus.
Q, Where is the bus station in Clinton?
A At the bus terminal on South Main Street, on the

corner of South Iain Street and West Broad Street.
Q How far is that from your home?
A About a quarter mile.
Q Miss Jarnigan, are there any other pupils from Clin­
ton in Anderson County going to the Austin High School with 

you?
A Yes, there are eight from Clinton and four from
Lake City, and two from Q-adston, and one from Lonesome 
Dove.
Q, You just name the ones, if you can, from Clinton.
A Rebecca Whitt, Queen Esther Whitt, Samuel Jarnigan,
Lillian Willis, Shirley Willis, William Dickie, and James 
Dickie, and myself.
Q, First I will ask you how are you classified at Austin?
A I am a senior.
Q That is in the 12th grade?
A 12th grade.
Q If you can, tell me how those other pupils are



Testimony of Helen Jarnigan 232

classified,.

A They ape in the 10th and 11th, and one other 12th.

Q Can you name the pupils and give their classifica­

tion?

A Yes a

Q, Do that, please?

A Rebecca Whitt is in the 11th grade.. Queen Esther

Whitt is in the 10th grade. Samuel Jarnigan, 10th, grade. 

Shirley Willis, 10th grade. Lillian Willis, 12th. William 

and James Dickie in the 10th grade.

Does that take care in Clinton? Do you want the 

rest of the county?

Q 'No, just Clinton.

A And Sammy Jarnigan in the 10th grade.

Q You have some in the 10th grade, and some in the

1 1th and some in the 12th?

A That’s correct.

U  What time do you get up in the morning to catch your

bus?

A 6s30.
(Q Do you fix your own breakfast?

A No, my mother does.

Q What time does she get up?

A She gets up at 5 o ’clock.

Q Now, Miss Jarnigan, if you were going to school at



Testimony of H e l e n  Jarnigan 233

Clinton High School or going to school in Clinton, what 

time would you have to get up?

A 7§30»

Q What time does school, start in Clinton at Clinton

High School?

A I think it starts at 8 §30.

Q, You could get up at 7 0 0  and be there in time at

8 s30?

A Yea, sir.

Q As it is now, you ha v© to get up at 600, as I

understand it?

A Yes.

Q What time does the bus arrive in Knoxville?

A The most of the time at 8 §30.

Q, 'What time do you have to be in school?

A Supposed to be there at 8§25, and in order to go

to the locker before we go to class. Class starts at 8 §30.

Q State whether or not the bus gets you at school on

time or not and whether it is early or late.

A Most of the time I usually have to go to the office

in order to get a late entrance permit, and permit to go 

to my locker, because the bus is late.

Q Miss Jarnigan, directing your attention to on or

about December, 1950, state what kind of transportation 

did you have.



Testimony of Helen Jarnigan 23k

A In *50, we had to ride a commercial bus to school.,

q  That is at the same place you are now catching the

school bus?

A JeSo

Q What was its terminus in Knoxville!

A I didn 51 understands

Q Where did they put you out in Knoxville'?

A At the bus terminal„

Q, Do you know which street that is on?

A That is on State Street.

Q How far is that from Austin High School?

A I should say it is about 12 blocks„

Q How did you go from the bus terminal to Austin?

A If we missed the street bus, we would have to walk

to schools, and that usually took us 15 or 20 minutes„

Q, How long did you ride the commercial bus?

A 1 have been riding the commercial bus all my four

years, all my three years at Austin High School,, The bus -*»

they did not put the school bus on until this September,,

Q, This September,, 1951?

A Y©s„

Q State whether or not that is true of the other

students coming from Clinton and Anderson County, they had 

to ride the same bus?

A lost of the students went to LaPollette High School,



Testimony of Helen J'arnigan 235

but Joheather MeSwain and myself went to Austin,

Q, Directing your attention to the ones that were coming

to Austin, :1s that true as to what you said as to where the 

bus arrived?

A Ye s0

Q, And as to when ‘it started?

A Ye So

q Directing your attention to the school bus, 1 under­

stand you to say they put it on in September, 1951?

A Yes,

Q With reference to what kind of 'bus was it and just

describe in your own way and manner the type of bus, and

so forth,

A Well, the bus was very old and in very poor condi­

tion,, And it was a bus that they had been using to transfer 

the working people to Oak Ridge, and this bus did not have 

a heater. Had windows that could not 'be let up, and of 

course that made it very airy. And it was dirty, and it 

is dirty now most of the time. And it leaked also when it 

rained,

Q When it rained, could you put the windows up?

A Ho,

Q, And rain would go on you pupils?

A Yes,

Q What kind of bus do they have now?



A They have changed buses twice lately.,

Q When you say '’lately*” can you give the time?

A I think it was in December when they got a rather

nice bus.

Q That is December* 1951?

A That’s correct,

Q All righto
A And now they have another smaller bus. This is in

nice condition except for cleanliness. They don’t keep it 

clean,

Q, State as to whether or not the time of arrival for

these school buses* these last two school buses, is the same 

time that you gave before* around 8s30.

A Around 8§30,

Q, Miss Jarnigan* what time is school out at Austin

High School?

A 3?30,

Q, What time does your bus leave Austin for Clinton?

A Usually leaves Austin around 3 0 5  or 3slpO»

Q, I didn’t quite get that,

A Around 3 0 5  or 3»̂ -0„

Q, What time do you get in Clinton?

A ij.g20„
Q Is the bus always on time in getting to Clinton?

A Most of the time* except sometimes it gets there at

Testimony of H e l e n  Jarnigan 236



k*o25o

Q

Testimony of Helen Jarnigan 237

Does Austin High School have a basketball team?

A Ye s„

Q A football team?

A Ye So

Q Do you have any dramatics?

A Ye s „

Q Are there any other school activities, extra-curricular

activities you have after your regular class hours?

A Well, they have basketball games, football games,

choral arts,, They sing, and I happen to be in choral arts.

Q, Choral?

A Choral art group,,

'Q, State whether or not you have any Y activities or

PTA type activities that the students engaged in,

A Yes, they do0

<Q When are they held?

A Sometimes they are held after school or at night,

Q, Bo the students of pur class ever have any socials

or stunt nights?

A Ye So

Q Miss Jarnigan, are .you able to engage in those extra­

curricular activities?

A Well, when I do I have to pay my own transportation.

Q, And what time will that throw you at home?



Testimony of Helen Jarnigan 238

A men?

Q I say, usually when do they have football games?

A At night®

Q, Are your football games usually at night?

A At night, yes, sir®

Q Tour T and PTA and class socials and stunt activities,

when are they usually held?

A In the afternoon.

Q What about your choral groups?

A Well, that9s usually at night. Sometimes we have

to practice in the afternoon®

Q, When the activities are held, in the afternoon, what

time would that throw you to get back home at Clinton?

A Well, 1 usually get home around 8.

Q With activities that are held at night, what time

would that cause you to get back at Glinton?

A Sometimes at quarter till 12, or either quarter to

2 in the morning®

"Q, You have to ride the commercial bus?

A That9s correct®

Q State, Miss Jarnigan, who pays for that transporta­

tion when you stay late for extra-curricular activities.

A My mother and father.

Q. State whether or not you ever requested from anybody,

from any authority, school authority for reimbursement or



Testimony of Helen Jarnigan 239

pay for those trips?

A I didn’t understand th© qusstion.

q  State whether or not you have ever talked to any

school official in Clinton or in Anderson County about 

reimbursement for transportation when you stayed for those 

extra-curricular activities,,

A I have„ I spoke to Ir* Irwin, th© superintendent.

q  Just t®ll briefly what was your conversation with

him,,

A Well, that wasn’t the main purpose of my visit.

1 went down there because another girl was going to school 

at Austin High,

Q You just tell me, just answer my question as to the

cost.

A Well, I asked him could I get some tickets for

activities because I wanted to attend quite a few, and 

suppose X was in the class play or wanted to play on th© 

basketball team, well, I would need extra tickets because 

it was just too much for me to pay my fare every time I 

wanted to stay over,

(§> What is the fare, incidentally?

A The fare is 86 cents round trip-

Q, Go ahead.

A He said positively no, that they could not give

tickets out for activities because they couldn’t furnish



everyone tickets from Anderson County,

Q, How* Miss Jarnigan* as a result of being compelled

to pay your own transportation* do you attend much or little 

of the extra-curricular activities?

A I attend quite a few but not as much as I would

like to,

Q, Miss Jarnigan* are these pupils coming from Clinton

and enrolled at Austin High School* do you know of your 

own personal knowledge as to the extent of their participa­

tion in extra-curricular activities?

A Well* they do not participate in them because they

can't afford to,

;Q, In other words* their condition is not quite as good

as yours?

MR, LEWALLEMs I am going to object to the question? 

the question was ”Do you know?” She has never answered that 

she knows,

Q (By Mr, Cowan) Do you know* Miss Jarnigan?

A I don't know,

Q, You don't know as to whether they participate in

those activities or not?

A Yes* I do know that. They do not,

Q And do you know why they do not?

A 1 know what they tell me* and they say —

MR, LEWALLEN; We object to what they tell her on the

Testimony of Helen Jarnigan 2I4.O



Testimony of Helen Jarnigan

ground it is hearsay,

THE COURT? Objection sustained, 

ft (By Mr, Cowan) Miss Jarnigan, if you know, state

whether your economic condition is better than the other 

students coming from, generally from Clinton?

A Well, slightly,

ft I think you testified that you attended a number of

the activities, but you didn*t attend as many as you would 

like to. Why?

A Because I ean!t afford to. It costs too much,

ft Miss Jarnigan, are any of these activities at Austin

High School, extra activities, free? Tell what are free 

and what are not free,

A Some are,

ft Just go ahead. If you want to play on the basket­

ball team, do you have to pay on that?

A No,

ft If you participate in a choral art group, would you

have to pay?

A No,

ft If you participate in stunt night, if a class was

giving it or a school was giving it, would you have to pay 

for that?

A I think if the school was giving it, I would probably

have to pay a small admission.

2I4.I



Q What about your Y Teen activities?

A Wall, I t ouldn!t have to pay for that.

Q What about your PTA activities* something that they

put on for the benefit of the students?

A Yes* you would sometimes,

Q Sometimes, Then 1 understand you to say* Miss

Jarnigan* the cost of transportation is primarily your 

reason you don5t attend these activities?

A Ye a,

Q Mias Jamigan* how long have you been attending

Austin?

A This is my fourth year*

Q, Do you know what the enrollment of Austin is?

A It is over 600„ 1 donst know exactly,

Q State in your own. way as to whether the school is

crowded or not crowded,

A The school is crowded,

Q Explain that and tell something to verify it,

A Austin High School is so crowded now that all the

teachers have to have a home room because there is so 

many students* and all the rooms are filled* and therefore 

the cafeteria has to be used as a home room and also the 

gymnasium,,

Q They have students in those?

Testimony of Helen Jarnigan 2ij.2

A Y@s„



Q, In the gymnasium and in the cafeteria?

A Yes, sir. And also have a study period,

Q, 1 think you said you had a gymnasium. Do you have

an auditorium separate from the gymnasium?

A Ho*, it is together,

Q, low, Miss Jarnlgan, as to other expenses, can you

tell the Court whether your expenses would be greater or 

less if yon were living in Clinton and attending school there? 

A They would be less if I lived and attended in Clin­

ton.

Q Explain that,

A Well, as for the activities I would not have to

pay to go to Knoxville and that time. And there is my 

lunch,

Q How much do you have to pay for your lunch?

A Approximately lj.2 cents or over a day,

Q If you were in Clinton, how much would you have to

pay for your lunch?

A No, I could go home,

Q It wouldn't cost you any more?

A No.

Q Any other thing?

A There is also my carfare going out to the s ehool

for the activities at night,

Q What about your clothing?

Testimony of Helen Jarnlgan 2I4.3



Testimony of Helen Jarnigan

A And my clothes, I have a tremendous cleaning bill,

ft Just what is that tremendous cleaning bill?

A It usually runs around five or six dollars a week.

Q What is that caused by?

A Because of the non**c1eanl1ness of the bus.

Q, If you were living in Clinton, can you estimate

what your cleaning would be?

A It would probably be about two or three dollars a

week.

ft Miss Jarnigan, I don8t know whether you testified

this or not, or whether I asked you. Did I ask you what 

time the bus got to Austin High School in the morning?

A Tea, yon did,

Q What time was that?

A 8?30o

Q Did I ask you what time classes began?

A Yes. 8s3Q„

ft Did I ask you *=•<=•

MR. LEWALLEN§ I didn!t understand her answer.

THE WITNESSg 8?30.

ft (By Mr. Cowan) Do you have anything to do after the

bus arrives and when you get to school before you can go 

to class?

A Yes, I have to go to my locker to deposit my clothes

and books and get ready for the next class.

2i|4



Testimony of Helen J a m i g a n 2J+5

Q Then what time do yon usually gat in class?

A 1 usually gat in class late, around 8slj.O, because

I am supposed to be there, the last bell rings at 8s 35, and 

you are late then,

Q Have you ever received any discipline slips?

A Ho,

Q State whether or not you have been tardy. Just about

how often are you tardy?

A Well, 1 am tardy just about all the time,

Q What is that du© to?

A That is due to the arrival of the bus, That!s why I

don't get any discipline cards, but I also have that tardy 

marked on my record,

Q Tardy marks on your record?

A Yes,

Q But you get, as I understand, the office to take it

off aa far as discipline on account of the late arrival of 

the bus ?

A That's correct,

Q Do I understand you to say the school authorities

know that the bus arrives late?

A Yes.

Q Miss Jarnigan, state whether or not you feel you

are doing your best work at Austin.

A Ho, I am not because 1 am too tired when I get in



Testimony of H e l e n  J a m i g a n 2I4.6

in the afternoon after riding 19 miles a day, it is very 

tiresome, and you don5t feel like studying.

Q That is 19 miles each way?

A I mean just one way coming home.

Q 19?

A Yes*

Q 19 comings and that would be 38 miles % is that right?

A Ye So

Q Both ways. You say you are too tired to study?

A Yes*

a Miss Jarnigan, state whether or not you could do

better work if you were going to school in Clinton.,

A I eould because I would have more time*

Q Where do you eateh the bus in Clinton?

A Down on the corner of Main and West Broad Street.

Q Is there a shelter there?

A Hop it is the bus terminal there* But we are not —

when he told us to catch the bus, he told us to catch the 

bus at the court houses and therefore we walk down there.

a Ifoo is he?

A The driver. The owner of the bus company, rather.

Mr<> P0X 0

a Mr* Pox?

A Yes*

Q, Go ahead*.Go ahead*.



Testimony of Helen J a m i g a n 2i+7

A And so we caught the bus downtown on the street

corners, until it became so cold, and 1 refused to stand 

outside, and so 1 went to the bus terminal. But we are 

not wanted there,

Q When you say you are not wanted, what attitude has

been shown you?

A The owner of the bus station -- I have heard her

make som© remarks,

ME, LEWALLEIs We object to any remarks she might 

have mad©,

Q, (By Mr, Cowan) Did she make them to you?

A She made them and I heard them,

MR, LOOBY? I think we are permitted to show the 

inconvenience she suffered,

THE COURT? Overruled,

Q, (By Mr, Cowan) Go ahead,

A And so sometimes we stay in and sometimes we stand

outside,

Q Mien you go in the commercial bus station, you don't

have any ticket, you are not a patron of that bus company 

at that time?

A No,

Q ‘When you do go in, although you know they don't want

you, where do you usually stand?

MR, LEWALEENg We object to that, may it please the



Testimony of Helen Jarnigan

Courto

MRo COWANg I will rephrase that,

THE COURT? Objection sustained.

Q (By Mr. Cowan) Where do you usually stand or sit

in tbs bus terminal?

A We usually sit 'back in a corner or else when we

stand* w© stand outside.

Q Ton are not in the bus terminal itself* it is in

the vestibule or something?

A In the bus terminal* but it is just a corner

reserved for Negroes„

THE COURT? As I understand it* they do let you 

use the bus station?

THE WITNESS? They do,

THE COURT? But yon feel* because of some remark you 

heard the wife of the owner say* that you are not welcome* 

is that the idea?

THE WITNESS? That®® correct,,

THE COURT? But you get to use it?

THE WITNESS? Yes* we use it.

THE COURT? I SQ0O

Q (By Mr* Cowan) Miss Jarnigan* this is a. commercial

bus company* not operated by the county?

A That!s right,

Q It is not operated by the county?

2l+8



Testimony of H elen Jarnigan 21+9

A I dcnc t know„

Q Did the school authorities ever tell you to use this

bus station?

A Noc

Q, And you just started using it in December after it

got cold?

A Xes0

Q And that was just your own individual action in order

to come to schools is that right?

A That*s rights

a State whether or not you or any others have on rainy

or cold bad days have stayed home on that account?

A Yes, I have,

Q Do you know about others?

A Yes, two other So

MR0 COWANs You may ask her*

CROSS EXAMINATION

BY MR, LEWALLENs

Q Miss Jarnigan, your name is Helen Ann, isn't it?

A That is correcto

Q I believe you were named after my mother, weren't

you?

A That's righto
Q Helen Ann, you are now a student, as you have testi­
fied here, at Austin High School at Knoxville in Knox County!



Testimony of Helen Jarnigan 250

is that right?

A Yes„

Q And you ride a bus provided for you by the school

authorities of Anderson County to get here to your school; 

is that correct?

A Y©s0

Q, And you travel a distance of some 19 miles to get

to your school?

A Yes»

Q Riding on this bus that is now provided by the school

superintendent and the school board of Anderson County?

A That's correct.,

Q, You walk5 I believe you testified* approximately a

quarter mile to get to the location where you get on the

seta, ool bus ?

A Yes,

Q, That is from your home down to the corner of Broad

and Main Streets in the town of Clinton?

A Yes 0

Q You say you get up at about 6s30 in order to prepare

yourself and get ready to catch the bus and get to Knoxville? 

A Ye So

Q You are familiar with other school buses which bring

students into Austin High School* aren't you* Helen Ann?

A Y©s„



Testimony of H e l e n  J a m i g a n 25.1

Q, There are other buses that bring students in from

the outlying sections of this county and possibly other 

counties to Knoxville, Austin High School! is that correct? 

A Yes,

Q. And you are also familiar, are you not, with the

fact that some of those buses are late from time to time% 

is that right?

A I do not know,

Q, You don’t know that?

A Ho,

Q, Well, the school authorities do not penalize you,

do they, in your ratings for the fact that your school bus 

is late on some occasions?

A Would you mind repeating the question?

Q I asked if the school authorities penalize you as

a result of your school bus being late on some occasions?

A ' Ho,

Q. The school authorities are aware of the fact that

school buses are late sometimes? is that right?

A I suppose so.

Q * Do you know any other students at Austin High School

who ride buses other than the bus on which you ride?

A Yes.

Q, • Gan you name some of them?

MR, COWAHs Just a minute. Your Honor, for what



Testimony of Helen Jarnigan 252

purpose? Prom Clinton?

MR*y LEWALLEH% Torn? Honors, 1 just want to show that 

the activities and the inconveniences which Miss Jarnigan 

is experiencing to get an education is incident to all 

people getting an education* I think we are entitled to 

show,your Honors, for comparison purposes*

MR* LOOBY; If your Honor please, I don’t think it 

will he relevant to show the inconvenience of someone who 

may he experiencing it in some remote or unconnected area*

The only thing relevant is to students from Clinton 

as to whether their condition exists as to white and 

colored students in Clinton, Tennessee* That is all we 

are talking about* That is all this case is about* It 

may be that somebody in West Tennessee whose experience 

is not only more difficult, and Washington had to walk miles 

to get to school* But that has nothing to do with this 

case*

MR, LEWALLENs I don’t see, your Honor, how your 

Honor can make any comparison between inconveniences if 

there are any as these students have complained, or in this 

Complaint here, or are experiencing difficulties to achieve 

an education*

THE COURT; I will let the testimony go in the record 

subject to the objection, and if It becomes material to the 

decision on the merits, 1 will pass on the objection then*



Testimony of H e l e n  Jarnigan 253

MR. LEWALLENs All righto
THE COURT? Do not go though too far* Let's narrow 

these Issues insofar as possible, gentlemen,

Q, (By Mr. Lewallen) Can you tell me the name of some

students at Austin High School, say three students at Austin 

High School, that you know that ride a bus?

A Prom other places?

Q, Yes, from some place outside the city of Knoxville?

A Myrtle TIppitt,

Q, How do you spell that?

A (Spelling) T-i-p-p-i-t-t.

Q Myrtle Tippitt. Where does she live, do you know?

A 1 don't know,

Q You don't know that?

A Ho,
Q, Can you give me another name?

A Betty Blue.

Q  Betty Blue? .

A Yes.

Q, Can you give me another? Do you know where Betty

Blue lives?

A No,

Q, Bo you know what bus she rides?

A She rides Knox County bus. I don't know.

Q Bus provided by Knox County authorities?



A les, I suppose so,

q  Hair© you ever arrived there lat© on any occasion

riding the bus provided by your school authorities of Ander­

son County when another bus* a Knox County bus, arrived 

at approximately the same time?

A Ho,

Q You have never done that?

A Ho ,

Q, You don’t know then of your own knowledge whether

a bus except the Anderson County bus arrives late on some 

occasions?

A Ho,

Q That is the only one you know.

You say you get up at six o ’clock. What time do

Testimony of Helen Jarnigan 2S\

you say your mother gets up?

A She gets up at five, and I get up at 6 s30„

a Your father’s name is Arny Jarnigan, isn’t it?

A That’s correct.

Q Where is he employed?

A Southern Railroad System,

Q At Clinton?

A Yes,

Q And what does he do for the Southern Railway?

A He is laborer.

Q Laborer?



Testimony of Helen Jarnigan 255

A Ye Bo

'iQ, H© works3 1 belies©, as a section —  on the section?

A Yes,

Q, Section department., I believe that is what they

call it, isn't it?

A Y©So

Q, 'lhat time does he go to work?

A I think *=»<=

MEo LOOBY§ Object to that, if your Honor please,

I don't see the materiality,

THE COURTS Overruled.,

Q, (By Mr. Lewallen) lhat time does your father go to

work, if you know?

A 7s30„

a 7*30?
A Yes.

Q That is what time he reports to work?

A Yes, most of the time,

Q, What time does he get up?

A I don't know.

Q You don't know what time your father gets up?

A loo

Q You live there in the same house with him?

A Yes,

Q You have lived there all your life?



Testimony of Helen Jarnigan 256

A Yes.

Q But you don111 know what time lie gets up?

A • lo, I don't know the exact time*

Q, How, Helen Ann, you say these extra-curricular aetivi

ties that they have at Austin High School —  what are they?

A Wells basketball games, football games,

Q, Let me interrupt you just a moment. Do you play

basketball on the squad there or did you attempt to play 

as a member of the team?

A Ho. But I attempted to play on a Y team which is

sponsored by a class of the school two years ago, and I 

couldn't, I didn't play, Decided not to.

Q Was that because you couldn't attend; is that right?

A Yes.

Q Had nothing to do with your ability as a basketball

player?

A Ho.

Q What are your other activities?

A I sing with the choral art group,

Q, Choral art group?

A Yes.

Q That is a choral club?

A That’s correct,

Q What we might call a glee club?

A Yes



Testimony of Helen Jarnigan 257

Q Or something of that nature?

A Yes,
Q What else? Yon are a member of that, aren’t you,

Helen?
A Yes,
ft You have been since you have been in high school
over there at Austin High School?
A Prom the 1.1th grade.
Q All right. What other activities outside of that do

they have?

A Well, they have stunt night and talent night, and

quite a few other activities,

Q, Those are the normal activities of any other school,

i s that. ■ r 1 ght ?

A Yes,

Q For the school?

A Yes,

Q, They are the activities of a school that would be

in a normal school if you were attending school in Clinton!

is that right?

A Yes,

Q You would be put to some inconvenience to go to those

activities if you went to them and attended at night; is 

that right?

A Yes



Testimony of Helen Jarnigan 258

Q And you attend football games, I believe you testi­

fied which they have at night time?

A Y© s „

Q, A majority of which they have at night?

A Ye s o

Q, And that necessitates your making some effort to

get to the game? is that correct?

A Ye s

Q And that is the same effort that other students

make to get theref is that right?

A Well, some others go, yes,

Q I believe you said th© bus leaves Austin High School

in Knoxville about 3s35?

A 3»35 or 3^0.
Q In other words, just after the classes are dismissed

and time for the students to load on th© bus and leaver is 

that correct?

A After the students go to their lockers and get

outside to the bus.

Q, That’s right, and you get home to Clinton at I4.S2Gj

is that right?

A Ye 3 „

Q lOaat time does the bus leave Clinton in the morning,.

Helen Ann?

A Usually about, supposed to leave 20 till 8, but it



usually leaves a quarter till or sometimes later.

Q, Around, quarter to 8?

A Yes,,

Q I believe you testified,, haven't you, it takes about

I4.O minutes for the bus to get over here?

A I did.

Q, I 'believe you testified, haven't you, that the bus

leaves Austin High School at 3°35 or 3 SI4.O and gets to Clin­

ton at lj.s20?

A Yes.

Q In the afternoon?

A Yes.

Q, That is about ifO minutes, isn't it?

A I haven't timed it.

Q, 1 beg your pardon?

A I didn't time it.

Q, You can tell from simple arithmetic that is about I4.O

minutes?

A Yes. That is the time they leave.

Q Now does it take longer for the bus to come from

Clinton to Knoxville than it does to go from Knoxville to 

Clinton?

A Takes about I4.O or \]$ minutes to go either way.

Q, 1|0 to I4.5 minutes to go either way?

Testimony of Helen Jarnigan 259

A Yes.



Testimony of Helen Jarnlgan 260

Q If the bias leaves, you say, about *—  supposed to

leave at 7?30 *»- on what did you testify to that?

A I said supposed to leave at 20 until 8,

Q, And if it leaves at 20 till 8, and it takes I4.0

minutes to get over here, then how many minutes do you have 

left before classes convene?

A 1 usually have five minutes before 1 am tardy,

Q, You have after the bus arrives here?

A Yes,

Q, You have five minutes before you are tardy?

A Ye a,

Q It is the same with all the students, isnJt it?

A Y©s0

Q They all have five minutes before they are tardy?

A Yes.

Q, ■ So you are not in some special class by yourself

or you or the students in Clinton, You and the other

students from Knoxville, say, all have that five minutes 

before they ar© tardy?

A Yes,

;Q And other students who ride buses from out in Knox

County have that five minutes?

A That is the school rule,

Q, Ifhat time, Helen Ann, do you get down to the bus

station usually?



Testimony of Helen Jarnigan 261

A 1 Usually get there around 20 till or quarter till,,

Q 20 till or quarter till?

A Till 8,

Q  8?

A Yes,

Q, You say tfhen you get there at quarter to 8, if the

"bus leaves at 20 to 8, you miss the bus?

A Ho, I haven’t ever missed the bus. The bus usually

doesn’t get there,

Q, You get down there approximately 20 to 8 or quarter

to 8?

A Yes,

Q I believe you say that the bus is supposed to leave

at 20 to 8 and sometimes 10 to 8?

A Yes,

Q, Before the bus actually arrives?

A Yes,

Q So that is a period of some five to ten minutes you

have to wait on the bus, isn’t it, Helen?

A Yes,

Q, Is that constant? Would you make an estimation that

you wait as much as 10 minutes every day that you are there? 

A Five,

Q Yon will say five minutes?

A Five or more, yes.



Testimony of Helen Jarnigan 2.62

Q This place, the court house I believe you testified

to, that the driver told you he would pick you all up on 

the street?

A Yes,

Q That is directly across the intersection from the

bus station, isn!t it?

A Yes,

Q And that street is some 30 feet to I4.O feet wide

there, wouldn5t you say?

A I don51 know,

Q Just a normal street there in the little town of

Clinton?

A las,

Q, And that court house, that corner where the driver

told you all or you had previously received instructions 

from the driver cf the bus to load on the bus, is directly 

across the street from the corner bus station?

A We received from the owner of the bus company, Mr.

Pox.

Q The owner of the bus company?

A Yes,

Q, 'Who owns the school bus?

A Ye a,

Q Owner of the bus that you ride, Mr. Eugene Pox of

Lake City?



Testimony of Helen Jarnigan 263

A Yes,

Q Is that where you load on and get on the bus?

A We get on the bus in front of the bus terminal.

Q, . Walk out of the bus terminal and get on the bus?

A Yes,

Q That bus station is a public place?

A Yes,

Q That is where the public enters freely and leaves

freely?

A I suppose so,

Q, You have caught the commercial buses there, haven't

you?

A Yes.

Q Wien you come to Knoxville on these extra-curricular

activities do you ever rid© the commercial bus?

A Yes,

Q. Common carrier?

A Yes,

Q, Greyhound or Tennessee Coach Company?

A Yes,

Q You go into that same bus station there and buy your

ticket?

A Yes,

Q, You board the commercial bus there in that station?

A Yes,



T e stimony of Helen Jarnigan 26k

q ISho is the owner of that bus station who you testi­

fied here his wife told you all not to come in there?

MR. LOOBY§ If your Honor please, I don’t see 

it Is material as to who the owner of the bus station is.

We will be all this week trying this case if we are going

into these immaterial matters.

THE COURTS Overruled, for the reason you went into 

that. 1 agree with yon, I cannot see it Is material, but

since you went into it, I think It Is fair to let them go

into it on cross examination.

Q (By Mr. Lewal'len} What is the lady’s name?

A I don’t know her name. I know her in person, but

I don’t know her name.

Q, You don’t know who she Is?

A I know she is the owner of the bus station. Her

husband passed recently.

Q Do you know whether her husband is owner or manager?

A He was manager or something.

Q Just something. You don’t know?

A I think he is manager.

Q Can you swear to that?

A Well, no.

Q You are under oath. You are not saying that he is

the owner?

A He was until he died? he was the manager.



Testimony of Helen Jannigan 265

Q He was the manager?

A Yes,

Q His wife is an employee there?

A Yes,

Q, What was this statement, and when was it, that led

you to believe you wen© unwanted?

A I don8t know the date, but I heard her make some

remarks and by her actions or snobbishness that we were not 

wanted, I mean that is plain to see,

Q, What did she do, Helen Ann? I am trying to arrive

at that,

A She told someone she wished we would stop coming

in there,

Q Who was this someone she told?

A Another lady in the bus terminal, I know her, too,

but I don!t know her name,

Q Was she an employee there?

A Yes,

Q In other words, there were two ladies that work in

the bus station?

A There are three.

Q Three?

A Sometimes four,

Q All at the same time?

Ik Sometimes



Testimony of H elen Jarnigan 2.66

Q, And where were you when you heard this conversation

between these two ladies that you don’t know their names?

A I was sitting in the Negro part,,

Q Where war® the ladies?

A They were up behind the counter,

Q, How far is that where yon say, the location where

you were sitting, Helen Ann, and where these ladies were?

A I don’t know the exact distance,

Q Gould you estimate it or approximate it?

A It is about as far from here to where you are stand­

ing, I suppose,

Q, About this far?

A Yes,

Q, You overheard this conversation?

MR, COWANt lay it please the Oourt, for the purpose

of the record, would you estimate the distance?

MR, LEWALLENs 1 am not under oath here, may it 

please the Court, She stated and the Court can see it,

THE COURT? Let the record show. Then do you want 

the distance shown in the record?

MR, COWAN? Yes, your Honor1.

THE COURT? He is entitled to that. If you gentlemen 

can agree on a distance, put it in the record, or let her 

estimate the distance.

MR, LEWALEEN% I would like for her to estimate.



Testimony of Helen Jarnigan 267

THE COURT8 Can you estimate the distance?

THE WITNESS? As fan as I know, it Is about as fan 

from here to you.

Q (By Mr. Lewallen) Can you estimate how far that

is?

A No* I can*1„

THE COURT? Can you gentlemen agree on that distance? 

MR. LEWALLENi Yes., your Honor* I will say it is 

20 feet or 25 feet,

MR. COWAN? How about 15?
MR. LEWALLEN% No* I won't say it is 1.5, I will say 

it is 20 to 25,

MR. WILLIAMS? Let’s compromise and make it 20,

THE COURT; Let it be from 15 to 25 feet.
MR. LOOBY; 1 don’t see that it is material.

Q (By Mr. Lewallen) What were those actions that she

did on that occasion? How many times did this occur? Just 

one time ?

A Just once., that I noticed.

Q What actions led you to believe you were unwanted?

A She frowned and mads those remarks* and sort of

snarled her nose.

0. Did she call your name?

A No* she didn’t address anyone personally.

Q How did you happen to overhear this?



Testimony of H e l e n  Jarnigan 268

A 1 was sitting there and watching her, because I

didn't think she wanted us there,, When I heard those 

remarks, I knew she didn't.

Q As a result of those remarks, you have stopped going

into that 'bus station?

A Ho, 1 go when I get there in time.

Q, You are still going in there and still using it?

A Some time So

Q How did you get to Knoxville this morning?

A Ycame on the school bus.

Q. The same school bus you have b een riding?

A Yes, because 1 missed the bus.

Q Where did you wait for that school bus this morning?

A Down at the same place outside.

Q You waited outside?

A Ho, I didn't get there in time, so I walked there

and I was quite late, but I made it anyway.

Q, In other words, you and the bus arrived there about

the same timej is that right?

A Yes, that's correct.

Q Did you ride the same school bus yesterday?

A Ho, I came in a ear yesterday.

Q The day before, Tuesday?

A Ho, I didn't go to school. I have been ill.

Q Bid you go Monday?



T e stimony of Helen Jarnigan 269

A loo

Q Of this week?

A Ho,

Q You still use that bus station? You go in it,

don't you?

A Sometimes,,

Q, You say your family's economic condition is better

than other students who are attending Austin High School?

A May be slightly,

Q Hhat do you base that on, Helen Ann?

A Well, they say that they can't attend some of the

games because they don't have the money, and other activi­

ties,

Q, And you do have the money and you attend them?

A Sometimes, 1 can't attend all because it is too

much money,

Q In other words, you can't do everything you want

because you don't have the money?

A Ho,

Q Do you know whether Dr, Looby here can do everything

he wants to because he has all the money he wants?

A I don't know, sir,

Q Helen Ann, these activities that the school has

there, the extra-curricular activities which they charge

for, what are they?



Testimony of Helen Jarnigan 2?0

A Well, the games,

q That is football and basketball games?

A Yes, And whenever they have socials,

q What is this stunt night Mr, Cowan has referred to?

A They do have stunt night,

Q, What is stunt night?

A Well, different people from the groups and other

departments of the school do stunts and different things 

that they are capable of doing,

Q, School activity there?

A Yes,

Q Of just classes or groups or clubs?

A Yes,

Q How often do they have that?

A Well, I don’t know,

Q You have been a student over there for three and

a half years, haven’t you?

A Yes,

Q How often have they had it there?

A They have it two and three times a year maybe,

Q Two and three times a year? That is not a weekly

activity, is it?

A Ho,

■Q You say that the conditions at Austin High School are

crowded, Helen Ann?



Testimony of Helen Jarnigan 271

A Yes, sir.

Q, I will ask you if directly down the street approxi­

mately 200 yards the city of Knoxville is not building a 

new Austin High School?

MR, COWAHs Object to that. That hasn’t anything 

to do with the present high school.

THE COURTS Overruled.

Q {By Mr. LewaHen) If you know. Do you know that,

Helen Ann?

A Yes.

Q Is it a larger plant than this plant that you are

now in?

A I don’t know.

Q, Have you seen it?

A Yes.

Q You have passed by it?

A Yes.

Q Do you know that that school is practically completed

there, Helen Ann?

A I do n 51 know„

Q You don’ t know that?

A Ho.

Q I believe you stated that the conditions are so

crowded the students have to —

MR. LEWALLENs Your Honor, I see one of the witnesses.



Testimony of Helen Jarnigan 272

Mr, Hogue, He will have to go out. He is one of our 

witnesses. We subpoenaed him. Dr, Looby m y  have him 

also,

MR a LOOEY'S We don't have him, I told the principal 

or superintendent yesterday, told him if he wanted to leave 

it is perfectly all right. Inasmuch as it is an educational- 

problem, I don't mind him staying in,

MR. LEWALLEH8 That is the superintendent of 

Knoxville a ehools,

THE COURT? All right,

MR. LOOBYg So far as any educator is concerned, we 

have no objection,

THE COURTS Is this man an educator?

MR, LEWALLENs He is principal of the Austin High

School,

MR. LOOBYs We have no objection,

THE COURTs Let him come in. If you have no objec­

tion, you can tell him he can com® back in, if you want to.

MR. LOOBYs It is a question that involves education, 

and in which I am tremendously Interested.

Q, (By Mr, Lewallen) Helen Arm, you say the conditions

are crowded at Austin High School?

A Yea,

MR. LEWALLENg Your Honor, I am going to object to 

Mr. Hogue remaining. He is our witness, and I am. going to



Testimony of H elen Jarnigan 273

object to his being in here.

IE. LOOBY s It is all right, if your Honor please, 

if he wants him out. I was just saying so far as we are 

concerned, we make no objection.

THE COURTS Gentlemen, let him stay in if he wants 

to stay.

Q (By Mr, Lewallen) The students were in the cafe­

teria, you say, at Austin High School?

A For home room, yes.

Q, I beg your pardon?

A For home room, they are,

Q For home room?

A Yes,

Q, Does that prevent the Knoxville -~

THE COURTS Mr. Lewallen, what was your objection 

to his staying in the room?

MR. LEWALLEN1 My objection for him being in here?

THE COURTS Yes.

MR. LEWALLENs He is principal of Austin High School 

down there and has intimate knowledge of this student's 

testimony and any other student's testimony that the 

plaintiffs might put on here, or any that we might put on.

And I would like to keep his testimony inviolate or separate 

from, anything that they might say.

MR. LOOBYs Of course, we are the only ones to object,



Testimony of Helen Jarnigan 27^

but it is perfectly all right anyway counsel wants. It 

doesn’t matter to us. All we want to do is get the facts 

before the Court.

THE COURTS Does both sides a'sk for the rule in this

case?

MR„ LEWALLEHt Yes, your Honor,

THE COURTS I think you will have to go out under 

those circumstances. (Mr, Hogue excused from court room.)

MR. LEWALLENs May it please the Court, we don’t 

want to expose Mr, Hogue to any other testimony that might 

be correct or incorrect. That is the objection,

Q (By Mr, Lewallen) How the fact that some students

use the cafeteria, 1 believe you say as a home room?

A Yes,

Q —  doesn’t prevent them from having a cafeteria

at Austin High School, does it?

A Ho,

Q They do have a cafeteria there, don’t they?

A Yes,

Q. You eat there?

A Yes,

^ How much do you say your lunch costs you?

A Approximately Ij.2 cents a day or over.

How much?

A About ij.2 cents a day or over.



Tes t i m o n y  of Helen Jarnigan 2?5

Q, [j.2 cents a day or over. If you lived at Clinton

and attended Clinton High School,. would your lunch cost 

you anything?

A Ho,

Q Wouldn*t cost you anything?

A Ho, X could go home,

q Well, it doesn’t cost you personally anything now?

It costs your mother and father?

A Yes.

Q If you went home, It would still cost them, wouldn’t

it?

A Ho.

Q They wouldn’t have to pay for It at home?

A Yes, they have to pay for it, I suppose.

Q So it would cost something at Clinton?

MR. LOOBY? If your Honor please, she has answered 

the question, and I can’t see where it is material,

THE COURTS Let’s go to something else. We have 

been on this lunch subject too much already. Let’s go to 

something else,

Q, (By Mr, Lewallen) You donft know where Myrtle Tippitt

and Betty Blue live?

A Ho,

Q Don’t know anything about them.

Are you happy at Austin High School?



Testimony of Helen Jarnigan 2 7 6

A Yes,

Q You like your fellow students there?

A Yes,

Q, You enjoy the school?

A Yes,

q Is it your desire to go to the Clinton High School?

MR, LOOBY: Just a minute,

Q (By Mr, Lewallen) Hear your home?

MR, LOOBY: I think her desire has nothing to do with

It,

THE COURTS Do you object?

MR, LOOBYS Yes,

THE COURT: Overruled,

Q (By Mr, Lewallen) Is it your desire, Helen Ann,

as a student — »

MR. LOOBY: We except, if your Honor please,

THE COURT: All right.

Q (By Mr, Lewallen) ~  to attend at Clinton High School

that is now in operation down below your home?

MR. COWAN: lay it please the Court, this Is not a

party plaintiff. She is a witness.

MR. LEWALLEN: This is cross examination.

MR. LOOBY: Her desire, If It were one of the plain­

tiffs, It might be material, but as to what she desires —  

MR, LEWALLEN: She Is a member of the class.



Testimony of H elen Jarnigan 277

THE COURTS She is a member of the class. I over­

rule the objection, gentlemen.

MR. LOOBY'S All right, we except.

Q (By Mr. Lewallen) Will you answer my question?

A Well, it doesn’t matter as far as going to school

there, I would like to go to school because it doesn’t 

matter about the races because they are human just like 

I am, and it would be close and more convenient.

Q You say you are happy at Austin High School?

MR. LOOBYs I withdraw my objection, your Honor.

A As far as the school is concerned, it makes it

inconvenient for me, but I am happy asfkr as the school 

is concerned.

Q If you lived at Clinton and attended Clinton High

School which is now in operation there, you would have 

no inconveniences?

A Ho. Hot as much as I do now,

Q If is your desire to enroll in Clinton High School?

A It doesn’t matter,

Q If doesn’t matter?

A No,

MR. LEWALLENs I thank you. That’s all.

(Witness excused.)

MR. LOOBYs If your Honor please, we would like the 

record to show that Mrs. W, V. IcSwain in thepleadings is



Testimony of P r a n k  E, Irwin 2?8

the same person as Mrs, Allen McSwain who testified.

THE COURTS All right. There is no objection to 

that, I take it?

MR. LEWALLENs Was she present in the group?

MR. LOOBYs She testified yesterday by the name of 

Mrs. Allen McSwain.

MR. LEWALLENs We have no objection.

THE COURTS Yes.

MR. LEWALLEN: She is Mrs, Allen McSwain?

MR. WILLIAMSs Yes, she is. On the pleadings her 

given name is given instead of her husband*s name,

MR. LOOBYs How, we have, your Honor, some more 

witnesses, but all that they would establish is the practice 

of which we are complaining as a custom that has been in 

operation for over a long period of years. And I think 

your Honor ruled yesterday that it wasn*t necessary so 

we won't go into that.

We would like to recall the superintendent of Ander­

son County for one or two more questions.

THE COURTS All right.

FRANK B. IRWIN

recalled as a witness by and on behalf of the Plaintiffs, 

having beem previously duly sworn, was examined and testi­

fied further as followss

DIRECT EXAMINATION



Testimony of P r a n k  E. Irwin 279

BY MR. LOOBY;

q Mr. Irwin, I just want to ask you two more questions,

and will try to keep it two.

You said yesterday in your testimony that there were 

white students in Anderson County who were sent to high 

school out of county.

Where- are those white students sent from?

A Prom Frost Bottom and Lower and Upper Wind Rock.

MR. WILLIAMS; What is that? Frost Bottom?

THE WITNESS; Frost Bottom.

MR. WILLIAMS; Frost Bottom and what?

THE WITNESS; Wind Rock,

MR. WILLIAMS; Where are they sent to?

THE WITNESS; Oliver Springs.

Q, (By Mr. Looby) Those, Frost Bottom and Wind Rock,

those are the only two places?

A We have a special bus that transports the students

from those areas to Oliver Springs High School.

Q How far Is Oliver Springs from those two areas, those

two places?

A I believe it is about six or seven miles from Free t

Bottom, approximately, 

ft To Oliver Springs?

A To Oliver Springs.

MR. LEWALLE1; I didn’t understand the answer.



Testimony of F r a n k  E. Irwin 280

THE WITNESS2 I believe that’s around six or seven

miles*
MR. LEWALLENs From which area?

THE Q3URT; Frost Bottom.

THE WITNESS; May I qualify that some? That bus 

runs a h.2 mile bus run per days that is what we are paying 

him, basing on Ij.2 miles per day.

q (By Mr. Looby) Especially with reference to these

two places that you transport white students, you say they, 

are six or seven miles?

A The bus in traveling that route travels about 21

miles each way.

Q What I am trying to find out is how far those towns

are from Oliver Springs.

A The towns, if you could go directly to them, or the

area, would possibly be about six or seven miles.

Q How far is it from those towns to the nearest high

school in Anderson County?

A The way the bus would have to travel, it would be

about 17 or 18 miles.

Q So that the nearest high school in Anderson County

is more than two or three times the distance of the nearest 

high school out of county to which they are sent?

A That’s right.

'Q And what is the nearest high school?



Testimony of P r a n k  E„ Irwin 281

A Clinton High School.

q, So with respect to the white students, you are send­

ing them to a school out of the county because it is much 

nearer than a school in the countyj isn’t that true?

A I suppose that’s right,

MR. LOOBY? That’s all,

GROSS EXAMINATION

BY MR. LEWALLEHl

Q Mr. Irwin, you say these students come from communi­

ties known as Frost Bottom and Upper Wind Rock and Lower 

Wind Rock?

A Yes, and Reed.

Q And Reed?

A Yes.

Q Those are not towns or cities, are they?

A They are mining camps, and Frost Bottom is a farming

area.

Q From the Frost Bottom community to the Roane County

high school in Oliver Springs, how far is it the way the 

crow flies, in a straight line, to Frost Bottom approxi­

mately?

A I would say five miles the way the crow files.

Q About five miles?

A I might be off.

Q How far does that school bus travel per day on that



Testimony of P r a n k  E. Irwin 282
school bus run of taking up those students?

A Approximately J4.2 miles a day. In other words, it

serves all the various communities.

Q Mr. Irwin, I hand you a map entitled General Highway

and Transportation Map, Anderson County, Tennessee. Will 

you look at that and identify that map if you can. Have 

you seen that map or such a map as that before?

A I have seen a map similar to this.

Q Will you Introduce that as Exhibit 1 to your cross

examination, Mr. Irwin?

A Yes.

(DEPENDANTS EXHIBIT NO. 1 was filed.)

Q (By Mr. Lewallen) I will ask you to take that map.

Mr. Irwin, for the purpose of the record, is that a map of 

Anderson County?

A Yes, sir.

Q Does it show the highways, both Federal, state and

county roads?

A It shows all of them with the exception of the change

in highway 6l that was made when Oak Ridge was established.

$ Shows all except that change?

A Yes.

Q lhat is that change? Is that a state highway, inci­

dentally, Mr. Irwin, highway 6l?
A Yes.



Testimony of P r a n k  E. Irwin 283

>Q What is that change there that is not shown on the

map?

A That road was relocated slightly when Oak Ridge was

established.

Q That road runs around Oak Ridge now instead of

through it| is that correct?

A Yes.

Q Mr. Irwin* can you locate on that map or from your

records the home of —  first* will you point out to his 

Honor* for the record, too, the town of Clinton, Tennessee, 

shown on that map?

A (Indicating on map)

Q 'Will you take your records, Mr. Irwin, if you have

them, or from your memory, and tell us or locate on the 

map the home of the Infant plaintiff James Dickie.

Will you first point out to his Honor where Knox 

County is as shown on the map, which area is Knox County?

A Here is the road to Knoxville (indicating).

■ THE COURTS Mark it there ,?Knoxville. 11 

Q (By Mr. Lewallen) Is that highway 25W, Federal

highway?

A Yes, sir.

<4 Will you take that map, Mr. Irwin, and point out

to his Honor, and for the record, the location of the home of 

James and William Dickie, infant plaintiffs in this cause?



T e stimony of P r a n k  E. Irwin

A It would be roughly right in here (indicating).

THE GOCRTs That will not mean anything to me unless 

you mark it with pen some way.

Q (By Mr. LewaUen) Will you mark that with pen?

THE COURTS Put "D" on it.

Q (By Mr. Lewallen) Will you also indicate from a

line from the X that you have who that refers to,

A That is James Dickie you are talking about?

Q The infant plaintiffs James and William Dickie,

their home.

Will you also indicate on that map the location of 

the homes of Charles Willis, and Lillian Willis, and Shir­

ley Willis, by marking it with a pen?

A (Indicating on map)

Q Do you have that done, Mr. Irwin?

A I can®t mark on there just exactly where.

Q, You can mark on it the general area of Clinton.

A Willis lives right on the corporate, close to the

corporate limits,

Q Clinton is a small town of about 3500 people, isnH

it?

A _Around, I believe, the section generally known as 

Pop Hollow, somewhere in there.

Q. ‘ Have measurements been made there by you or your 

department as to the distance?

284



Testimony of P r a n k  E» Irwin 285

MR. LOOBYs Just a minute. These measurements by 

him or his department?

MR. LEWALLENs Let me ask the question before you 

object to it.

MR. LOOBYs You mentioned by M m  and by M s  depart­

ment »

A These measurements were made by our supervisor of

maintenance and transportation.

Q. They are the official records of your department?

A That's right.

Q You are official keeper of those records?

A That's right.

Q, Have measurements been mad© from the distances from

the homes of the infant plaintiffs, James Dickie, William 

Dickie, Charles Willis, Lillian Willis, and Shirley Willis? 

A They have.

MR. LOOBYs If your Honor please, I am objecting.

Q (By lr. Lewallen) To the bus station or location

where the students now presently today get on the bus to 

come to Austin High School?

A Yes, sir.

MR. LOOBY? If your Honor please, I am objecting to 

any testimony of this witness as to those measurements. He 

may introduce the record, if he is in charge of the record, 

but certainly not to interpret it unless he is qualified



Testimony of P r a n k  E. Irwin 286

in order to interpret the record.

THE COURTS Do you have the record?

THE WITNESS: This is the record as prepared by

the officials of our office.

THE COURTS Are those the permanent records of your

office?

THE WITNESS : It will be the permanent record of

our office.

THE COURTS Are those records made in the regular 

course of business by your maintenance engineer?

THE WITNESS: They were made, this record was made

with reference to this suit.

MR. LBWALLENs The records, what he means is, were 

made with reference to this litigation.

THE COURT: Why would not the statute, the record

statute apply, Mr. Looby, if made in the regular course 

of business? You are familiar with the Federal statute 

which permits records.

MR. LOOBY: I have no objection to its being a record,

aid if it is part of the records of his office, being intro» 

dueed. But my objection is to this witness interpreting 

the record unless he can show he is qualified to interpret 

these measurements,

MR, LEWALLEN: May it please the Court, I am not

going to ask him and haven’t asked him to interpret.



T e stimony of P r a n k  E„ Irwin 28?

MR0 LOOBY g But it is, your Honor, showing where 

the different plaintiffs live. And it must be done, it 

can only be done by someone who is familiar with scales.

And you can draw the map. That is interpreting of that 

map. I haven't objected to introducing it.

THE COURTS Are you introducing the records?

MR. LEWALLENs Yes, I want him to read into the 

record and also introduce the record, I wanted him to 

read the record into the record, and introduce the record 

he is reading from,

THE COURTS Pile it in the record.

MR, LOOBYs I haven81 objected to reading what is 

there, but interpretation I am objecting to, as to where 

certain persona live.

THE COURTS All right.

Q, (By Mr. Lewallen) Mr. Irwin, are you testifying

as to where the Willis children and the Dickie children 

live from those records or from your personal knowledge?

A I am testifying from the records given me by my

maintenance supervisor.

Q Do you know where this Willis home is and the Dickie

home?

A Hot specifically. I couldn't go directly to it.

Q Will you introduce that record as Exhibit 2 to your

testimony on cross examination?



T e s timony of F rank E* Irwin 288

MR* LOOBY? May I see that?

If your Honor please, I presume I will have to wait 

until my time eomes to examine as to that record, but I 
am not admitting that it is admissible in passing, and 

let it pass for the time being until counsel gets through* 

THE COURT? Let it be marked as Exhibit No* 2* 
(DEFENDANTS EXHIBIT NO* 2 was filed*)

Q (By Mr* Lewallen) Mr* Irwin, from your official

records which you have previously introduced in this case 

as Exhibit 2 to your testimony on cross examination, how- 

far does the infant plaintiff James Dickie walk from his 

home to the location where he boards the school bus to 

come to Austin High School?

A James Dickie?

Q. Yes*

A 6/lOths mil©*

Q 6/10ths of a mile?

A Yes*

Q How far does the infant plaintiff William Dickie walk

from his home to th© bus station?

A 6/X0ths*

How far does the infant plaintiff Willis, the three 

of them, walk?

A Charles Willis, Lillian Willis, and Shirley Willis,

9/lOths*



Testimony of Prank E, Irwin 289

q To the bias station?

i To the bus station,.
M a  LOOBY s If your Honor please* mf attention has 

just been called to the fact that the testimony being given 

now is part of the stipulation entered into at the opening 

of this trial,
THE COURTS Gentlemens, let's do not introduce testi­

mony on any subject that is stipulated,
MR, LEWALLENs I didn't hear, I was busy over here 

and did not understand the objection,
THE COURT? He says that this testimony that you 

are giving now* introducing now,, is covered by stipulation,

MR* LEWALLENs I would like to see, may it please 

the Court, It may b© true, I don't know. Which stipula­

tion?
MR, LOOBY g It is what is Ho. 8 of the stipulations 

submitted by plaintiffs,

MR, LEWALLEN% No, 8 ?
MR, LOOBYg The first portion thereof,
MR, LEWALLENs H© is corrects your Honor, I am 

sorry, I didn't remember that stipulation,
Q (By Mr, Lewallen) Now* Mr, Irwin* these students
that you send or that are sent from Anderson County ~  white 
students —  to another county* what was your reason* you say* 

for sending those students there?



Testimony of Prank E 0 Irwin 2 9 0

A It is a remote area. The roads are in none too good

conditions, and in order to get those children to high 
school* it is almost a necessity that we send them to 

Oliver Springs High School.
q, Under the authority of the state statutes* you are

sending them to the high school.? is that correct* in Roane 

County?
A Yes* sir.
Q The Court will take judicial knowledge of that,

A I suppose it is on the statutes.
Q, How many did you say were going? How many white

students are going out of the county?
A We have a total of 118 going out of the county. Some

of them are going by their own choice.

Q That!s to other schools?
A That5s to Oliver Springs. We have a school bus that

does start at Hatley* coming through the edge of Oliver 
Springs * up the Dutch Valley Road to Marlow* over to high­

way 6l into Clinton.
Q How far does that school bus run* Mr. Irwin?
A 1 7, I believe it is 1? ~  no* wait a minute. In the
course of that run* he runs* I believe* 65 miles a day. He 
has to unload those children at Marlow* make some runs 
from Marlow school* come back and pick up those children, 
and carry them on to Clinton High School.



Testimony of Prank E0 Irwin 291

q Those are white students we ar© talking about?

i Yes*

q You say he unloads some of those students at Marlow?

A Ye So

q Where has he previously picked up those students?

A His run started at Hatley*

Q, Where is Batley? Is that a town or is that a com- 

munity?

A He starts on the lower end of the highway 6l, which

is about Oliver Springs gate, about parallel to Oliver 

Springs gate*

Q When you say Oliver Springs gate -~

A I am referring to Oak Ridge*

Q Oak Ridge a® a?

A Somewhere in that neighborhood*

Q Is that a community> Batley community?

A It is a farming area and covers a rather wide area.

Q, Students that are picked up in that area, Mr* Irwin,

you say that they are carried to the Marlow school?

A Hop they ar© carried by Marlow sehoolp but during

this journey the bus has to make two or three runs for the 

Marlow school, and they have to wait there until he makes 

those runs, and then h© re-loads and then carries them on 

to Clinton*

Q Bo you know how long those students wait there going



Testimony of Prank ®* Irwin 2 9 2

to Clinton school* at the Marlow school?

A Ho* I do noto
Q Is that true of the return trip in the afternoon*

bringing them back?
A That is true in reverse,, He reverses that in the

afternoon*
q You say M s  round trip* I believe* is 65 miles?
A I believe it is 65 miles. If my memory serves me

correctly*
Q 1 will ask you* Mr* Irwin* under present conditions
if these 118 students* white students* now attending high 
school out of Anderson County* if it would be possible 

for them to now attend the school in Clinton?
A It would be possible for the children who live in

the Batley-Donovan section* It would be almost impossible, 

I would, say* for those who live in the Frost Bottom and 
Wind Rock area. Of course* they could, but it would take 

time and would be prohibitive,
ft For the purpose of the record, when you say Upper

Wind Rock* what is that?
A That is a coal mining camp on top of the mountain,

ft Top of the mountain?
A About a mile.
ft Do some of these students live on top of that mown— 
tain?



Testimony of Frank E. Irwin 293

A We have had «=*«=* I can’t say positively whether we

are getting any students off the top of the mountain or 
not, but I feel sure we are* We maintain a grammar school 

up there„
q For the purpose of the record* you are the same 
Frank Irwin., the superintendent of Anderson County schools, 

who testified here previously on yesterday?

A Yes.
THE COURT? Yes* sir, I know he is.
MR* LEWALLM? I wanted it in the record,,
THE COURT? It is already in the record*

Q (By Mr* Lewallen) Mr* Irwin, on this occasion when
you testified that these infant plaintiffs and the spokesman 

for the group came to your office in 1 9 51 or 1950 seeking 
enrollment in the Clinton High, School, was there any con­
versation between you and those plaintiffs or the spokesman 

or Mrs* MeSwain or Mrs* Dickie, and Mr. Willis?
A Yes, we had quit® a lengthy conversation*

ft What was that conversation?
MR* LOOBY? If your Honor please, I think we have 

gone over that and cross examined on that before.
MR* LEWALLEN? lay it pleas© the Court, I have just 

learned about some of the conversation that wasn’t repeated 
here by either side yesterday*

THE COURT? Only go into that which was not repeated.



Testimony of Prank E<, Irwin 29k

MEo IEWALLE1? Yes, that’s all I am asking, or we 

will be her© all day0

q (By Mr* Lewallen) Was there any conversation there

concerning whether the students which were there in the 
group or their mothers and fathers are happy or unhappy 

with the school situation?
A After talking to them for some time, pointing out
the various things surrounding their Negro school and their 

white school
MR0 LQOBYg I want to make an objection to that, 

because it is immaterial as to whether they are happy, 
whether they are gleeful or what not, If these people 

have a constitutional right, whether they are happy or 
not doesn’t make a particle of difference,,

THE COURTS 1 will let it in the record subject to 

his objection,, I will pass on it if it becomes material 
when I pass on the merits„
A In the wind up of the conversation, I remember
remarking to them that you wouldn’t b© happy if you were 
over at Clinton High School, six or seven of you among 5^0 
or 600 white children, and they, I thought, agreed with me 
and left the office feeling very well, and I believe that 
I called Mr, Brittain and told him I thought everything was 

just going to be fine,
Q That is, Mr„ Brittain wouldn’t have to violate the



Testimony of Frank E. Irwin 29£

law, is that what you are saying?

A Yes.
MR. LEWALLEN% I think that's all, your Honor,

REDIRECT EXAMINATION

BY MRo LOOBYr
ft Then you still thought they were happy when you

received my letter, didn't you?
MR0 LEWALLENg Your Honor, I am going to object to 

this letter Mr. Looby keeps alluding to* I don!t know what 

that has t© do with it.
MR. LOOBYg He said he received it.
THE COURT? Overruled. 1 will let you go into it.

A Ho, that was when I found out they weren't happy.
REGROSS EXAMINATION

BY MR. LEWALLENs
ft Mr. Irwin, do you know whether they weren't happy

or Mr. Looby wasn't happy?
A Ho, sir, I couldn't say.

ft You don't know that?

A I can't say who was happy or unhappy. They left my
office, I.thought they were happy about the situation, and 
they were very nice and courteous and agreeable.

MR. LEWALLENs That's all.

(Witness excused.)
MR. LOOBYs If your Honor please, the plaintiffs rest.



Testimony of Wilson lew 

THE COURTS Take a recess.

296

(A recess was had.)

WILSON NEW

a witness called by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows?

DIRECT EXAMINATION 

BY MR, GILBERTSONs 

q You are By* Wilson New!

A Without the Doctor, yes, sir.

Q Mr. Wilson lew. Mr. lew, what is your present posi­

tion?

A Superintendent of schools, Knoxville,,

Q How long have you held that position, Mr. New?

A ‘This is the third year.

Q My. New, as a superintendent of the schools, what

is your educational background, in the field of education? 

How long have you been associated In the field of educationi 

A To answer that, I might b© ruled out. I started in

!90i|.o

ft Have you been constantly in the field of education

since that time?

A Except for the time that I have been going to school

and three years in business.

ft What position did you hold prior to assuming the 

position of superintendent of schools here, Mr„ New?



Testimony of Wilson Hew 297

A Wells, I was director of instruction here a year and

a half before the superintendent died suddenly* Before 

that I was principal her© since 1 9 2 7»
q Ir„ New, as superintendent of schools in Knoxville

here, ar© you familiar with the high schools in the City 

of Knoxville?
A In a general way* yes* I haven91 been principal of

one for three years*
Q You are familiar with the rules and regulations

that the schools operate under, are you not?

A Yes, sir*
Q Ar© you familiar with the rules and regulations

under which Austin High is operating?

A Yes, sir*
ft Is Austin High operating under the rules and regula­
tions of the State Board of Education and under the State 

Commission of Education?

A It is*
ft Mr* New, do you know the rating of Austin High School?
A It has the top rating in the state and is a member
of the Southern Association which is an additional standing* 

ft m a t  is that top rating, Mr. Hew, for the purpose 
of this record?
A They have had about four ratings for high schools
in the state* They have changed those recently* I am not



Testimony of Wilson New 298

sure of the naming but it was an A rating when it was 

first given,
q And that is the top rating in the state presently; 

is that correct?

A YeSo
Q Mr, New* you state that Austin High is a member of

the Southern Association of Secondary Schools and Colleges; 
is that the correct nomenclature of the association?

A Yes,
,1s that a higher rating than the normal A rated 

school,, an additional higher rating?
A They make some additional requirements beyond that

required by the state„
Q, Mr, lew* is there any difference in the rating of
that Southern Association of Secondary Schools and Colleges 

as between white and Negro schools, high, schools?
A Not to my knowledge„ I am sure not because our
schools* both white and colored* have been members and 
are members now, The new schools are tentatively members,

0, But have not been?
A They haven't been evaluated yet„
^ Approved or evaluated at this time* new schools* 
you are speaking of the newer high schools in Kncscville?
A Started last September in new buildings„
^ Mr, New* you are familiar with the fact that students



from Anderson County attend Austin High School?

A Yes, sira
Q Do you as superintendent of schools or does the

school board9 if you know, have any objection to their 
attendance at Austin High School, or how do you feel about 

it?
A lb, we have not only from Anderson County but from
Knox County, and we did have from another neighboring 
county I think that withdrew, but it was all under the 
direction of the board of education that these students 

were admitted,,
Q, Mr, Hew, do you know that or have any knowledge 
how these students are transported to Austin High School 

from Clinton?
A Only in a general way I know there is a bus that
brings them in, 1 have seen the bus a time or two. I 

don’t get over there too often,. We have 1̂ 5 schools in 
the city,
Q Mr„ lew, is it or not true that other students 

from, say, Knox County are also transported to Austin 
High on a school bus?
A Yes, the Knox County students come by bus unless
they happen to live close enou^i for other transportation.
Q Mr. lew, do you know anything concerning the grades 
03? average scholastic average of the students from Anderson

Testimony of Wilson Hew 2 9 9



Testimony of Wilson Hew 300

County that are now attending Austin High School as in 

relation to other students in general at Austin High.

School?

A I am not sure of the comparison* but I take it

from reports that I get from the principal that they are 

average with the others* Some are above the general school 

average and some are below.

q Bo you have any record of the scholastic average of

the Willis children or the Jarnigan children or the Dickie 

children who attend.?

A We require the principal to make a report to the

Anderson County school authorities at least twice a year 

and oftener in case of those students dropping out* and 

I have a copy of the grades for the past semester*

Q Mr* lew* do you know what time Austin High School

begins in the mornings, what time?

A Our general city“Wide arrangement is that the doer s

are open at 8s30* and. they are supposed to be in place by

8 s l j 5 .

0, in other words* the students should not be marked

tardy until 8slj5s is that correct?

A I. believe that1 s right*

Q. Does that apply to all high schools or not?

A Yes* and elementary*

Q If a student from Anderson County or Knox County*



Testimony of Wilson lew 301

any student riding a school bus,, if the bus were late, is 

that student penalized in any way, Mr. New?

A No, sir, not to my knowledge„ I am sure we don't

intend it that way*

Q, Bo you have knowledge, Mr. New, as to whether 

any of these school buses are on occasion late?

A Just be a general guess, knowing buses, it would be

unusual if they always were on time.

ft In other words, from your general knowledge of

school buses in general, I mean, would you say that buses 

are sometimes late?

A ■ I would think so. I haven't heard of any eases 

through the principal, however. It has not been serious, 

or I would have heard of it.

ft Bo you and the board of education require that the 

teachers at Austin High School meet the state qualifica­

tions in all respects for high school teachers?

A That's right, they do.

ft Mr, New, do you know anything about the qualifica­

tions in particular of the teachers at Austin High School?

A I believe they are all — =■

ft With respect to degrees, bachelor degrees, or do some 

or all of those teachers have a higher degree than ib cessary 

to teach in a high school?

A Well, several of them have masters degrees in addition



Testimony of Wilson Hew 302

to the bachelors, I don’t know just how many unless I had 

the record before me, but I believe every one there has 

a bachelors degree unless it is an old timer that might 

have been there. We have a few old timers, old teachers 

in the city that were granted certificates without degrees 

back generations ago and some of them are still with us.

I am not sure there is one at Austin. I don’t believe 

there is.

THE COURTS Did you say they all have masters degrees 

THE WITNESSs No. Ho. They have all bachelors 

degrees so far as I know,

ft (By Mr, Gilbertson) And some of them have masters

degrees. As to the exact number, you are not acquainted 

with; is that correct?

A Practically every teacher that has been employed

in secondary schools in the last, oh, 15 years or so must 

have bachelors degrees at least. They would have to go 

back ferfcher than that if any holdovers -*» probably be 

20 or 25 years ago,

ft Mr, Hew, is there a new high school, new Austin
High School adjacent to the present school under construc­
tion?

^ We hope to go into -*=•

MR. LOOBYs If your Honor please, of course, I don’t 

think anything needs to be done in the future.



Testimony of Wilson New

THE COURTS Do you object?

MR, LOOBYs Yes, sir.

THE COURTS Overruled.

q {By Mr, Gilbertson) Do you know anything about

that, Mr, New?

A There is a new building going up there for senior

high school. If was planned originally for a junior high 

school, but we are converting the present senior high 

school to a junior high school, and the new building 

should be ready for occupancy in September.

Q What is the capacity of this building, Mr. New?

A Well, it will run in the neighborhood of 700 or 750.

Q, 700 students?

A I believe the auditorium will seat 750,

Q, Evo New, what are the conditions at Austin High

School now with reference to overcrowding or teacher load, 

the number of students to a class, and that sort of situ™ 

ation? What are the present conditions out there at 

Austin High School?

A Well, we are up to the limit, and the first semester 

we were somewhat above the limit because we could not 

estimate accurately in any of the schools, and in about 

four of our schools we had to employ an extra teacher 

at the beginning of this present semester,

Q Was it necessary to employ additional teachers at

303



Testimony of Wilson New

Austin High?

A One„

q Ir0 New, then the condition of Austin High at

present is not such that, as to crowding, that would warrant 

any removal from its A rating or its membership in the 

Association of Secondary Schools and Colleges, is it?

A The Southern Association asked us to cut down on

the size of about *—  I have forgotten just how many 

classes, four or eight, whatever it was? and they also 

asked the same thing about four of our white high schools 

for the same reason0 So w© are adding to those faculties 

in order to cut the classes to the required size,,

Q, Then that action has to be taken correcting that

situation? is that correct?

A Well, it is on the way if it hasn’t been done,

because we have — » I know in the white high schools it 

hasn’t been completed for lack of proper applicants. I 

believe it has been completed at Austin,, I would have to 

investigate to be sure whether that has actually taken 

placeo

Q As I understand your statement, Mr„ New, this condi= 

tion was brought forth in this school term when it was 

impossible for your office and school office to estimate 

the exact number of students that you would have in the 

fall term| is that correct?

3 0l|



Testimony of Wilson Hew 305

l We estimate those, and usually we can estimate within

five per cents but we underestimated at Austin last fall, 
q 'Which brought about this condition where you needed 

additional teachers?
A Yes, We also underestimated at East and West High

about the same percentage 0
q 'Which necessitated additional teachers there?

A Yes, sir,
MR, GILBERTS©!? Your witness,

CROSS EXAMINATION

BI MR, LOOBY g

Q, Mr, New, do you happen to know that there are three

of your teachers at Austin High who do not hold a bachelors 

degree?
A No, As 1 stated awhile ago, I am not sure unless

they are old time teachers,
Q Bo you know a teacher by the name of Richards?

A Yes,

Q Bo you know that he doesn?t hold a degree?
A Well, he qualifies though because he is £n the
vocational department and that is a separate requirement,

Q But he do©snrt hold a degree?

A I think you are right about that. However, he does
have qualifications necessary and required by the state 
vocational department to offset the matter of degree in the



Testimony of Wilson Hew 306

academic field,

q Do you have a teacher- by the name of Anderson?

A Yes,

q Does he hold a degree?

A The sarae thing applies to him,

Q Doesn’t hold a degree?

A I am not sure that he doesn’t, I think he attended

college four years.,

Q Then quit or graduated or what do you mean attended 

college four years? Doesn’t have a degree? Do you know 

why?

A Well, he went to school in Virginia —  is it

Hampton? And that was largely a matter of vocational 

rather than academic,

ft You have a teacher by the name of Garb, Does he 

have a degree?

A He is only on part time, and that part time is

one-fourth of the time at Austin and one-fourth of the 

day at the other high school, the Beardsley Junior High 

School, and he is in music and apparently has grounding 

in mu®ie„

^ But he hasn’t a degree?

^ I don’t think he does,

ft Now as to this Southern Association to which you

referred, you wer© asked if it had a colored division or



white division, and you said you don't think so.

Do you know who is secretary of the Southern Associ­

ation to which Austin belongs?

A Ho, I don't keep up with that.
Q Do you know of Barba Scotia College? Do you know

anything about it? A college in Worth Carolina?

A Ho, I am not familiar with if.
Q You say that classes begin anywhere between 8.30

and 8§1|,5?
A Ho, they don't begin before 8sif5>°
Q. You are positive of that?
A Hot supposed to.
Q, You are not saying that they don't begin at 8s35?

A I have stated before I have I4.5 schools, and I do
not make it a practice to visit those schools because of my 
duties otherwise. 1 wouldn't know firsthand about that.

0. Would you be surprized to know that school classes
begin at 8 §30 with a leeway of five minutes so that a 
student may get in by 8§35 without being late? Did you 

happen to know that, sir?
A Ho. I doubt seriously that that happens.
$ I am fal king about at Austin High School now.
A Yes.
3 Sir?

A I doubt seriously that that happens.

Testimony of Wilson lew 3 0 7



Testimony of Wilson lew 3CB

Q, You are not saying that it doesn't happen?

A Ho» I haven51 been over there at opening time,,
Q Now you say that the students who come in on the

bus are not penalized when they come late, if the bus happens

to be late?
A Well, they would not be penalized any more than any
other student that would be late from a local situation.
0, A student who lives in the city and comes late, 
isn't he penalized?
A Well, it depends on how you define penalized.

Q, What happens then when a student comes to class 

late? You mean a student m y  come to class at any time 
with impunity? Sir?

A Well, I WQUldnst think that making up time that
is lost is a penalty» We do not consider it at alio We 
consider that if a teacher helps a youngster after school 
who was late in getting there that is a favor rather than 
a penalty.

Q I am not so much interested in interpretation. I
want to know what is done, or what is the school practice, or 
the department of education, with reference to students who 
come late to classes?

A We don't have a city“Wide iron-clad regulation on
that. That is more up to the principal of the individual 
school.



Testimony of Wilson Mew 309

q Tour* answer is that yon don't know with respect to 

Austin High?

A Ho, I wouldn't be familiar with the details of IjJ?

schools*
ft Then your answer is that insofar as Austin High

School is concerned, you don't know?

A Well, in that particular thing, I don't0

ft Th© Austin High Is operated by the board of education

of th© city of Knoxville, isn't it?

A Same as all the other schools, yes, sir*

ft And a contract is made with Anderson County to 

permit Megro students from Anderson County to attend Austin 

High? Is that th© way it is done?

A Well, I don't know whether you would call it a

contract or not. We accept students by tuition if they 

are outside the city limits, and we accept them from any 

place with that understanding„

ft But these schools are primarily for tie students

living within the corporate limits of Knoxville?

A Well, perhaps so0 We have ■=•«=• I don't know —  last

year and year before we ran forty or fifty thousand dollars 

in tuition and didn't all come from Megroes by a whole lot. 

We have tuition pupils that come from various and sundry 

places,,

ft Are those students permitted to attend school in



Testimony of Wilson New 310

Knoxville upon the action of the board of education and upon 

payment of certain fees?

4 That5 s right,

Q But the schools are operated primarily for students

living within the corporate limits of Knoxville?

A Well;, I think that would be assumed everywhere,

Q Then your answer is yes? Sir?

A I think you might construe what I have said because

there is nothing written to that effect that 1 know of.

Q You mean there is nothing written to the effect 

that the city schools in the city of Knoxville are estab­

lished and maintained primarily for the students living 

within the corporate limits of Knoxville?

A I have never seen anything in print on that,

ft You have no doubts but that that, is the purpose

of these schoolss do you?

A I have said before I would assume that..yes.

MR, LOOBY? That's all,

REDIRECT EXAMINATION .

M  MR, GILBERTSON?

ft Mr, New, as superintendent of schools, do you make 

the rules as to when the high, schools begin in the morning 

and what time they let out in the afternoon?

^ Well, that has to be approved by the board of educa­

tion, W© recommend and the board sets those, making it an



Testimony of Wilson Sew 311

order 1 suppose you would call it.
q lhat hours have you set for school to begin and at 

what hour does it let out in the afternoon?

A Well, we consider 8 s30 to 3s30 for the secondary
schools, and 8s30 to 3 for the elementary schools,
Q, When you say 8 § 3 0 to 3 §3 0, what do you mean by 
beginning at 8 §30? Is that the time that the instruction 

starts or is that the time that the students come into 

the room or what is the 8 §30 hour?
A The plan and the practice in.schools that I have

been in is that they cjome in at 8 § 3 0 and it takes some 
time. They don't all get there at once, and they are 

supposed to then be in place at 8§lj.5o
Q For formal instruction to begin at 8§lj.5l is that 

correct?

A That's right.
Q. And a student then would not be tardy until 8§lj.5i 
is that correct?
A That is the way it is supposed to be.

THE COURT§ I believe you went over that with the 

gentleman. I think I understand it.
MR. GILBERTSON § They questioned time on it, I know 

your Honor1 understands it, but 1 just wanted the record to 
show. That's all.

(Witness excused.)



312

OTIS HOG-TIE

a witness called by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION

BY MRa LEWALLEMg
Q You are Professor Otis T„Hogue?

A Yes,

Q Principal of the Austin High School?

A Yes, sir,,
Q, In the city of Knoxville?

MRa LEWALLEHs Do you gentlemen waive his qualifica­

tions?

MR„ LOOBYs Yes, he is all righto 
ft (By Mr, Lewallen) Professor Hogue, as principal of

Austin High School, you have at' present some students from 

Anderson County attending there?
A That5s right.
ft Do you know of your own knowledge their capacity 

as to their scholastic average?

A Ho, 1 do not*
ft Do you have an opinion as to their ability as students
A Well, I should say that the ability varies in the

student, their individual differences0 

ft Do you know Miss Helen Jamigan?
A Yes



T e s timony of Otis Hogue 313

Q Prom Clinton?

A Yes.

Q This young lady here?

A Yes.

Q Is she above average or average ?

A Somewhat above average.

Q Bo you know Samuel Jarnigan from Clinton?

A lo, I donst know him.

Q, You don8t know whether he is average or above average? 

A No.

Q, As a general rule,, Professor Hogue, what is the 

scholastic standing of the students who attend from Ander­

son County that attend your school? Are they average?

A Oh, yes,

Q They are average students. How many teachers do

you have at Austin High School?

A 2i|.o

Q How many students do you have?

A 6I4.O0

Q 6I4.Os and 2l| teachers?
A Yes.

Q You have had additional training other than your 

college degreej, haven81 you?

A Yes.

Q *iat schools have you attended and what attainments



Testimony of Otis Hogue 31k

have you made?
A Wellj, 1 &ave attended A&I State College,, 1 have
attended the University of Mexico*, and now attending the 

University of Denver in Colorado.
q How many of your teachers at present on the staff 
at Austin High School*, Professor Hogue, hold, in addition 
to bachelors degrees, masters degrees or otherwise?

A Pour .
Q You h a w  fouro How many of your teachers, if you 
know, at present have taken additional training and work 
other than their training and work which qualified them 

for this job tinder the state requirements?

A Well, I should say about 95 per cento
Q, About 95 per cent have taken additional training.

Professor Hogue, I hand you a pamphlet entitled 
''General Curriculum*, Senior High. Schools, Knox County, 

Tennessee,n and ask you if you can identify that?

A Yes, sir.
Q Is that a similar pamphlet which you some days ago
gave me?

A Yes, it is.
Q. Will you introduce that as exhibit to your testimony,

please?
MR. LOOBY§ I would like to see it first.

THE COURT? You may see it.



Testimony of Otis 'Hogue 315

MR, LEWALLEHi Let me furnish counsel with one,

I have an additional one,
MR, LOOBYs What is the question?
MR, LEWALLEN? 1 asked him if he would introduce 

it as exhibit 1,
MR, LOOBY? The question before that, when he 

identified it,
MR, EEW&LLEH1 1 will ask the reporter to read it,

(The question was read by the reporter.)
MR, LOOBY? Of course, if your Honor please, that 

doesn’t qualify towards introduction of evidence, merely 
identifying it. He may identify it as Webster’s Dictionary 

or anything else,
MR, LEWALLEHs Your Honor, I think I can correct 

that for him if he wants,
Q, (By Mr, Lewallen) Do you have in your possession
or in your office and school any of those pamphlets which 

I have just handed you?

A Yesp sir,
ft Will you look at that and see if there has been

any alterations or changes made in it from the ones that 
you have been furnished by the Knox County School Board?

A Same,
ft It is the same. Does Austin High School operate
under the curriculum as printed in that pamphlet there



Tes t i m o n y  of Otis Hogue 316

that you hold in your hand?

A Yes,
ft Will you introduce that pamphlet as exhibit to your

testimony,,
THE COURTg It will be Exhibit 3 .
(DEFENDANTS EXHIBIT HO* 3 was filed.) 

ft (By Hro LewaXXen) I believe you have stated.

Professor Hogue, that you did operate the school there as 

principal of Austin High School?

THE COURT § He said that,
ICR, LOQBYs I make no objection, I think he is 

qualified to introduce now,
ft (By Mr, Lewallen) Professor Hogue, when was your
registration day or registration period at Austin High 

School at the beginning of the 1951-1952 school session?
A About September 5th, I am not sure just exactly
what da te,

ft September 5th or around that time?
A Yes, We had spring registration prior to that,

however,
ft I will ask yon, Professor Hogue, as an educator
employed by the city of Knoxville, operating under the 

regulations of the department of education of the State of 
Tennessee, if on or about your registration day there at 

Austin High School a white student had appeared at your



Tes t i m o n y  of Otis Hogue 317

school and sought entrance by enrolling as a student in 

youi" schoolj, what would have been your action?
MR0 LOOBY? I objects, if your Honor please. Tint 

question is immaterial and irrelevant*
THE COURT? Do you object?

MR, LOO BY g Y 0Ss sir,
THE COURT? Objection sustained.

Do you gentlemen question the fact that the Austin 

High School is a first class high school in all respects 
and that it is manned by excellent teachers in all respects 

and it has adequate facilities? Do you gentlemen question 
that?

MR, LOOBY? If your Honor please, we are not ques­
tioning that as a general proposition. But we are ques­
tioning certain positions taken. First, for example, it 
is stated this curriculum, that as the record now shows 

it made this curriculum in the operation of Austin High 
School in every respect, I think we would be able to 
show that they haven11 done so, Austin High School is 

a good high school, we will admit thatj but it is subject 
to the same difficulties of a lot of schools -- they are 

absolutely overcrowded,
MR, LEWALLENg Your Honor, maybe he would admit 

that it is subject to the same conditions that Clinton High 
School is.



MR, LOOBY? I will admit that and let it go at that.
THE COURT? All right. Do you admit that it has

first class teachers?

MS. LOOBY? Yes, sir, a good high school, teachers 
are good. I take Mr, Hogue5s word for it. I take his 
word for most everything he tells#

THE COURT? Do you admit that they teach the same 

subjects as are taught in the other high schools in Knox 
County and Anderson County?

MR, LOOBY? Ho, sir# Ho, sir. High schools are 
varied according to the students which they have, and some 
things taught at Austin that are not taught in otto r high 
schools.

THE COURT? Do yon claim that the colored students 
are handicapped because of the fact that Austin doesn5t 
teach exactly the same subjects taught in some other hi gh 
schools?

MR, LOOBY? Insofar as a curriculum is concerned,
I am not contending, if your Honor please, that they are 

handicapped in the Austin High School any more than they 
would be handicapped at Clinton, 1 am not raising that 
question at all,

I will even admit for the record that they get as 
good a course at the Austin as they would get at Clinton.

MR, LEWALLEHs Will you admit that a greater variety

Tes t i m o n y  of Otis Hogue 318



in their curriculum is available at Austin than at Clinton?

MR, LOOBYS Ho, I cannot admit that® There may he 
some things given at Austin and not given at Clinton, and 

some given at Clinton not given at Austin, But I don't 

think it is important, don't think it has any effect in 

the case, I will admit as a general proposition that 
Austin is as good a school as Clinton, and I think that 
ought to cover the proposition,

THE COURTS Does that cover it?

MR, LEWALLENs We accept that with the reservation 
that there are additional courses at Austin, available at 
Austin not available at Clinton, and Austin has a cafe­
teria,

THE COURTS Can't you stipulate?

MR, LOQBYs 1 can stipulate courses given at Austin 
not given at Clinton, and courses given at Clinton not 
given at Austin,

MR, EEWALLEHs I can't stipulate as to the courses 
given at Clinton that are not given at Austin, not because 
I want to be argumentative with counsel, but because I 
don't know, I might be able t© find out,

THE COURT? Professor Irwin will know,
MR, EEWALLUTs Your Honor, outside of the basic 

fundamental courses taught in all high schools under state 
regulations at Clinton, I have been informed by the super­

Tes t i m o n y  of Otis Hogue 319



Testimony of Otis Hogue 320

intendent we have vocational agriculture, we have vocational 

home economics, we have band, and the commercial arts of 

typing and bookkeeping and shorthand, If they have those 

at Austins we can stipulate„

THE COURTS Do you have those at Austin? Do you, 

Professor?

IR, LOOBY? I dcn*t know.

THE WITNESS? We don?t have vocational agriculture. 

And what is the other that you call vocational —  the second 

one?

MR, LEWALLEN§ Home economics.

THE WITNESS? That is vocational, not as a vocational

course,

MR, LEWALLEN? I will withdraw vocational. It is 

home economics, sewing and cooking,

THE WITNESS? We have home economics,

MR, GILBERTSON? Do you have any course in agricul­

ture?

THE WITNESS? No course in agriculture,

MR, LEWALLEN? Does that cover it?

MR, LOOBY? Yes, Again I say I would be willing 

'to stipulate that Austin is as good a school as Clinton,

Some courses are offered at Austin not offered at Clinton, 

a»d some at Clinton not offered at Austin, That ought to 

take care of the question, I think that ought to cover



the proposition so far as material to the issues,

THE COURT? It seems to me. What do you want to

show?

MR, LEWALLEIi I want to show by two questions, 

your Honor.

THE COURTS All right,

Q (By Mr, Lewallen) At Austin High School you have a

course known as commercial cooking, do you not?

A That3s right,

Q Do you know whether it is taught at Clinton High 

School?

A Ho, I do not,

Q You also have a course known as shop?

A We have a course known as laboratory of industry,

Q Laboratory of industry?

A Yes0

Q Do you know whether or not that course is taught 

at Clinton High School?

A Ho, I do not,

Q. H a t  does laboratory of industry consist of?

A Well, mostly woodwork,
rt I^ Woodworking?

A Yes,

Q Bo you have auto mechanics?

Testimony of Otis Hogue 321

A Auto mechanics.



T e s t i m o n y  of Otis Hogue 322

Q, Do you know whether ©r not that course is taught

at Clinton High. School?

A No* I do noto

MR„ LEWALLE1? That is as far as that subject goes 

that we are talking about<>

Back t© your Honoris ruling on lr„ Looby5s objec­

tion when we got into this discussion* as an offer to 

prove* if the witness had been allowed to answer* I would 

like to read into the record what his answer would have 

been,

THE COURT? You m y  state,, You may ask him and let 

him state for the record what his answer would be,

® (By Mr0 tewallen) What would your answer have

been* for the record* Mr, Hogue* to the question?

MRc IEWALLEN? 1 will ask the reporter to read it, 

your Honor o

(The question* beginning at line 21* page 316 of 

Record on Appeal* was read by the reporter,,)

THE COURT? The Court holds that that question and 

any answer thereto is irrelevant to any issues in this 

snit, but the Court is allowing M m  to put it in the record 

in the event of appeal so that the Court may see what h© has

(By Mr 0 Lewallen) What would have been your answer 

to that question?



Tes t i m o n y  of Otis Hogue 3 2 3

l I would consult th© superintendent's office.,

q Xou say you would have consulted the Knox County

superintendent's office?

A Yes,

MR, LEWALLEHt Or consulted with him.

Yon may ask him,

CROSS EXAMINATION

BY MR.LOOBYs

Q Mr, Hogu©, is th© name Hogue H-o-g-u-e?

A That's right,

Q, Mr® Hogue , you are not telling the Court that Austin 

gives all courses in this General Curriculum for Senior 

High Schools published by the Board of Education, do you?

A As I understand it, the question was did we operate

under that,

Q Yes, I understand that, You answered that you do

operate under it. But you don't offer all the courses 

listed in it, do you?

A Ho, sli3,

ft As a matter of fact, in addition to these basic 

courses that Are required for all high school students, 

you select certain subjects that would be of interest to 

the people, to the students whom you serve! is that trte ?

A That's true,

ft That is the method used in the field of education



Tes t i m o n y  of Otis Hoge®

by all good educators, isn't it?

A X should think so.

ft How many teachers did you say you ha ire?

A 2l+0

ft Ar© they all full time?

A Ho, they are not full time* 

ft How many part, time?

A We have three part time*

ft So that you really have 21 full time teachers and 

three part time?

A That's righto
ft What time does class begin at Austin?

A 8s30„

ft The classes begin then?

A At 8§30o

ft I mean that is when your teaching beginss at 8s30?

A That's righto
ft Does the student have any leeway to enter class 

without being tardy?

A After 8?30 they are considered tardjj, if they enter

the class after 8s30°

ft How how about your condition there? Has the school 

ad©quate facilities for the students or is your school

crowded?

321+

It is crowdedo



T e s t i m o n y  of Otis Hogue 325

$ Crowded 'beyond capacity?

A Very much so,

q I baLlev© Austin High School was originally intended

for a junior high school» wasn't it?

A That's righto
Q, And it is being now used as a senior high school,,

How many students are in the Austin High School?

A Around S4.Q0

Q, That iSp in this last semester about 6?5S isn't it?

A Yes9 that was top0

MR, LEWALLEN% We object to Mr, Looby testifying

now,

MR, LQGBYg Cross examination*, if your Honor please. 

THE COURTs Go ahead,

Q (By Mr, Looby) You have a cafeteria and that is

also used as -- what is that used for in addition to a 

cafeteria ?

A Study hall,

ft Study hall. That is due to lack of space?

A That5 a right. And also band room,

ft Used for three purposes?

A Yes, We do not have a place for band,

ft There are some class rooms there that are not standard

class rooms?

A That's right.



T e s t i m o n y  of Otis Hogue 326

q What were those rooms before you had to convert 

them to class rooms?

4 Well? we had to have two rooms that we used for 

class rooms now that were commercial cooking room.

Q This commercial cooking,, what is that?

A Welly primarily it is to prepare boys to work in

restaurants and hotels as cooks„ 

a Waiters?

A Then w© do have that in that also0

MR„ G-ILBEEfSOH? If your Honor please* I thought 

we had agreed the school was essentially similar except 

on this curriculum,

MR„ LOOBY? 1 offered to agree to that* but they 

did some examination.

MR, EEWALLBH? For the purpose of the record* I 

would like to state that Mr, Looby offered to agree they 

were substantially the same,

MR, LOOBY? If you want to leave it that way* I am 

perfectly satisfied to leave it that way. So that is under­

stood* we agree to that,

THE COURT? Is that the agreement?

MR, LEWALLEH? I say that was his offer to agree,

MR, LOOBY? Yes* sir* and it is still my offer,

MR, LEWALLEN? Oh* well* proceed* Mr, Looby,

THE COURT? I understand that it is agreed by both



Tes t i m o n y  of Otis Hogue 32?

parties that these schools are substantially the same?

MR„ LOOBY3 Yes, sir,

THE COURTS If I understand incorrectly, I want it 

known now„

MRo LOOBY§ That is my offer of agreement, if your 

Honor please,and the plaintiffs stand by that offer, 

and understand that it is accepted by the defendants.

All right,,

MR* LEWALLEHs lay it please the Court, we have 

told lr0 Looby, I believe, counsel for the plaintiff, three 

or four times we agree to that stipulation with the excep­

tion of these additional courses,,

MR, LOOBY2 That makes it all the more better, if 

your Honor please,

THE COURT? Anything further with Professor Hogue?

MR, LOOBYs That substantially, of course, with the 

addition —  that is the thing that is getting me now, 

with the addition, 1 understand that means at least that 

there were courses offered by Austin High School that were 

not offered at Clinton, and vie© versa,

MR, XEWALLEIs The record indicates that from the 

testimony of superintendent of Anderson County schools and 

Professor Brittain$ I don5t think we need to quibble over 

it. Professor Hogue testified as to Austin High School, 

and Professor Brittain testified what we do not have at



T e s t i m o n y  of Otis Hogue 328

Clinton High School .

We are wasting the Court’s time,,

MR* LOOBYg We have been doing that ever since yester­

days, your Honor please. I don*t want to agree with any 

reservation. I want to agree. If we agree, we agree, and 

if we don’t s we don’t. But agreeing with reservations 

doesn’t really mean anything. I think this Court ought 

tote told very definitely what we agree on, so there 

can be no mistake or error in the future.

Our agreement is *»«* our offer to agree is that Clin­

ton High School and Austin High School are of equal caliber.

MR. LEWALIENs We are going t© ask Mr. Looby and 

through M s  plaintiffs to prove that. We can’t agree to 

it. I think that winds that up.

Q. (By Mr. Looby) Now this commercial cooking teacher,

what training has he had in commercial cooking or in any 

subjects relating or any course related to that subject, 

do you know?

A I believe he has a minimum requirement. No training,

no formal training but experience is what the state requires.

Q Boss his experience, like most of us who had work, mean 

experience in waiting and the like?

A Cooking and catering.

You say he met minimum requirements of that based

or experience?



T e s t i m o n y  of Otis Hogu© 329

A That's righto

<$ Some testimony was given here from Superintendent lew 

with respect to the Southern Association

Do you know or have any knowledge as to this school’s 

membership in that Association?

A Tesj, 812% I do,

Q I will ask you whether or not the Southern Associ­

ation for Secondary Schools and Colleges^ which is its 

correct name,, doesn't have a colored division and a white 

division?

A I don't know,

Q, With whom do you correspond or the school correspond 

in this Association?

A This year we have corresponded with Mr, Brinkley

because Mr, Vance who is the Tennessee state representative 

has been on leave,

Q Bo you know who is the secretary of the Association 

with which you are connected?

A I03 1 do no to 

Q Do you know Mr, Gozart?

A I know of that name, . I don't know M m  personally,

Q I knows but you know him to be secretary of the

Association?

A Of the Association of Secondary Schools and Colleges

for legpoes,



Tes t i m o n y  of Oti s  Hogue 330

q For Negroes?

i For Hegroes.

q That is the name of the association —  Southern

A sso e ia tio n  of Colleges and Secondary Schools for Negroes? 

is that the name?

A I know him to be secretary of that association.

That wasn’t the assoeiation to which I referred that we 

belonged to thougho

q You say that is not the assoeiation to which you 

belong?

A No. It is not the association to which we have

been corresponding.

% Have you ever had any correspondence from Cozart?

A I have received letters from M m .  I have never

corresponded with him.

Q Have you received letters from any other assoeiation

or Southern Association of Colleges and Secondary Schools?

A Yes* I have.

Q So that there are two separate associations then?

A It seems to me.

0, Now how about your teacher load at Austin?

A Well* we have an average of about 35 pupils to the

teacher.

Q Have you any class room with ij.0 average to a teacher?

A Yes. We have. There are six classes over I4.O.



T e s t i m o n y  of Otis Hogue 331

q What is the average teacher load that is approved 

by the accredited associations?

A The standard load is 30„ The maximum is ij.O„

q You operate under the maximum teacher load?

A Yes.

MR. LOOBYs That3s all.

REDIRECT EXAMINATION

BY MR. LEWALLEHg

Q Professor Hogues you are aware of the fact that 

the majority of the schools in Knox%J'ille are operating 

under the same conditions your school operates?

A What do you mean conditions?

ft Well? as to crowded conditions or maximum number of 

students to the teacher?

A lo, I am not aware of that,

ft You are not?

A Ho.

ft You are not saying., Professor, that Austin High

School is the only one that is having these difficulties?

A I am not saying that. I am just saying I am not

aware„

ft This Southern Association of Secondary Schools

and Colleges is a higher ratings is it not9 than just a 

Class A rating from, the state board?



Tes t i m o n y  of Otis Hogue 332

q As a high school,, And you attained that, your 

school attains that hy virtue of the fact that sons of 

your teachers have additional training or 95 P©r cent,

I believe you testified, have additional training and 

some of them hold masters degrees. Incidentally, do you 

hold a masters degree?

A I do not,

q Some of them do have masters degrees?

A Yes,

MR, LEWALL32Nt I believe that!s all. Thank you, 

RECROSS EXAMINATION

BY MR, LOOBYg

Q Actually there are four with master degrees, that is,

four holding a master degree?

A Yes, four, I believe,

MR, LOOBYs That5s all,

(Witness excused,)

W O R M  JEAN MAY

a witness called by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as followss

DIRECT EMMIHATIOH

BY MR, LEWALLENs

Qi Your name is Henna Jean May?

A Yes, sir,

0, Miss May, you are a student at Clinton High School?



Testimony of H o r m a  Jean May 333

A Tha t5 s night„

q What class are yon in?

A This is my last yean. Senior.

q You are a senior?

A Yes, sir.

q Where do you live in Anderson County?

A I live at Brwder Town.

Q 'Share is Browder Town?

A That is about one mile from Oliver Springs, and

three and one-half miles from Oak Ridge. It is between 

the two towns.

ft Between Oliver Springs and Oak Ridge?

A Yes, sir.

ft Bo you ride a bus to school?

A Yes, I do.

ft What time do you leaw home? Incidentally, do you 

attend Clinton High School?

A Yes, sir.

ft What time do you leave home riding that bus from

your home to school?

A I leave at 1$ minutes to 7 each morning,

ft You leave at If? minutes to 7 each morning?

A Yes, sir.

ft Shat time does school begin at Clinton?

A 8§30o



Te s t i m o n y  of Norma Jean May 33k

q Now, Norma Jean, how far is it from your home to 

the school at Clinton?

A 1? miles*

Q I will ask you doss the bus go directly to Clinton?

A No9 sir, it don5t0

Q Uhat does it do if it doesn*t go directly?

A It makes two runs. It goes to I get on the bus

and make a ran to Dutch Valley*

Q Dutch Valley?

A Tliat?s right* Then we go to Marlow school, and I 

get off the re o

Q You get off at the Marlow school?

A Yes,

Q, Where is the Marlow school in relation to your 

home and Clinton High School?

A It is a little town, they call the town Marlow where

the school is„

5 Is it between Clinton High School and your home?

A Yes, sir*

$ What do you do there?

A I wait there while the bus driver makes another run.

Q How long do you wait approximately?

A 30 minutes approximately*

^ Then does the bus come back then to Marlow school

urtiere you are?



Testimony of F orma Jean May 335

A It does*

q Then do yon get on the bus and go on to Clinton?

A Yes, sir,

q You reload again?

1 Y q Sj, sir,

q There are other students in the same area that do 

the same thing you do?

A Yes, sir*

Q What time do you arrive at Clinton?

A 20 minutes after 8, I think, Something like that.

It is different times,

Q, Is your bus sometimes late?

A It is,

Q Areyou penalized as a result of that if your bus 

is late?

A If the bus Is late, we usually get an excuse,

Q What time do you arise in the morning? What time 

is it necessary for you to get up in the morning?

A I get up at 5 °30*

Q Is that In order to get ready and get to school?

A Yes* sir,

Q. You ride these buses, Forma Jean, Do your clothes

sometimes get dirty from rubbing up against the dirt in the 

bus?

A I don51 hardly notice, I mean I don51 know.



Testimony of Horma Jean May 336

q Is the bus a good school bus?

I Yes^ sir.

q Sometimes have some mud or dirt in it?

i XeSo 0hs yes,, where students come on and off.

MR<, LEWALLENs You may ask her,

CROSS EXAMINATION

BY MR, LOOBY s

Q Where did you say you live?

A I live at Browder Town.

Q That is in Anderson County?

A It is0

Q, What is the nearest high school to Browder Town?

A I guess Roane County High School is nearest to it.

Q, I beg your pardon?

A Roane County High School is nearest to it,

0, that is the nearest high school in Anderson County?

A Clinton,

Q So you go to the nearest high school in your county.

MR, LOOBYg Thank you.

(Witness excused.)

THE COURTS Adjourn court until Is30.

(Whereupon* at 12s00 o ’clock noon*, court was adjourned 

until Xs30 o ’clock p„m„, when the following proceedings 

were had g)



337

EUGEHE FOX

a witness called by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows?

DIRECT EXAMINATION 

BY MR. 1EWALLM%

q You are Eugene Pox and resident and citizen of 

Anderson County?

A That’s righto

Q, 'Hhat is your occupation, Mr<, Pox?

A Operate school buses and work buses to Oak Ridge.

Q, Do you operate the school bus that carries the Negro

students from Clinton to Austin High School?

A I do,

Q Have you driven that bus yourself?

A I have»

Q Mr„ Pox, when did you receive your first contract 

to operate this bus?

A At the beginning of the colored school., That was

tack a couple of weeks before the white school „ 

ft Was that 1950?

A 1951 a

ft That was the school year !5l?
A School year s5l°

ft You have been operating a bus ever since. Mr* Pox, 

at the present time what type of school bus do you have in



T e s timony of Eugene Po x 338

operation?

A A new 1951 Dodge, 

q, Does it have windows in it?

A It does.,

Q In working order?

A They are.

<£ Does it have a heater on it?

A It has„

Q, Is it a sufficient heater to heat the entire bus?

A It is.

Q, What is the general condition of the bus* Mr„ Pox?

A It just is the same as a brand new bus* In fact

it- was when I first started operating it, 

ft Ir« Fox* what is the condition of the bus as to

cleanliness, whether the bus is kept immaculate or as to 

cleanliness ?

A They are cleaned regularly the same as the other

buses operated on a total of seven routes* and all buses 

are the same condition,

ft You mean you operate a total of seven?

A Seven school bus routes,

ft Is that seven school buses?

A That's right,

ft Is that in Anderson County?

A Anderson County„ Six in Anderson County and one to



T e s timony of Eugene Pox .339

Knoxville o
q Ir0 Fox, you say they are cleaned regularly?

A That’s right, every week.

q Mr„ Fox, how many students do you transport from 

Anderson County to the Knox County school here* Austin 

High School?

A Hhen they all attend, I think it is approximately

22 of them, but very seldom you have the entire group,,

Q You say you operate six buses then in the county 

where you haul white students?

A That’s righto

Q What is the size of this bus that you have here 

operating?

A It is a 36 passenger,

ft 36 passenger. That is the bus you are carrying 

colored students in?

A Tba t’a right»

ft A new bus?

A That’s righto
ft As to the other buses, the other six buses, what are

the conditions of those buses as compared to this bus?

A They are I4.8 passenger buses and the same condition.

They are new buses, just recently been on.

ft And as to the eleanlihess of them, whether they are

^®pt clean or not, all of them?



A They are cleaned every Saturday* All buses are 

swept and cleaned up on Saturday*

q 1 will ask you what is the average number of white 

students that rid© in the other six buses there that you 

operate ?

A There is approximately 75 on each bus or more*

Q That is  a I4.8 passenger bus?

A ■ I4.8 passenger bus*

Q, Those are white students?

A Yes* They have students standing on each bus 

practically*

Q Do you operate any bus routes, Mr» Pox., in Anderson 

County for the white students which necessitates students 

getting on the bus, getting off the bus at some other 

location or point or school, and waiting while the bus 

makes other auxiliary runs and getting back on before they 

go to Clinton High, School?

A 1 didn’ t get the question*

MR* LEWALLEHi Maybe the reporter can give it to you, 

(The question was read by the reporter*)

A No*

§ You don’t operate a bus that does that?

A We don’t operate a bus that lets them off and picks 

them back up before we get to the school*

^ You don’t operate all the buses that are operated in

Testimony of Eugene P o x  3I4.O



Anderson County?

A Ho, I just only operate six in the county,

ft Doyou know how many are operated? Do you know how

many buses in all are operated under the authority of the 

Anderson County school system?

A In the entire county?

ft Yesj sir. Do you know, yes or no?

A No.

ft Mr. Fox., is there any difference in the condition 

or accommodations of the bus that you use to transport 

the legro students to Austin High School as compared to 

the bus that you use to transport the white students to 

the high schools in Anderson County?

A The buses are the same. The only difference in the

two buses is the seating capacity which is 36 passenger 

for the colored and ij.8 passenger used on the white students 

runSj, due to the fact that we don!t have but about 22 colored 

students and plenty of seats for all of them, 

ft Is there any difference in the accommodations except

the seating capacity?

A That!s all *

ft I believe you said there are 22 colored students?

 ̂ Approximately.

MR0 LEWALLEHg You may ask him.

Tes t i m o n y  of Eugene F o x  3^1



Testimony of Eugene Pox 

GROSS EXAMINATION

3̂ -2

BY MR- LOOBYg

U Mr„ Fox, how many high schools are there in Anderson 

Countys do you know?

A I  do not,

Q Do you operate a school bus from Clinton? Do you

operate a school bus from Clinton, Tennessee?

A Operate one from take City coming through Clinton

to Knoxvilleo

Q There is a high school in Lake City, isn't there?

A There is,

ft There is one in Clinton?

A There is„

ft You say you operate a bus from Lake City and you come 

to Clinton and then com© to Knoxville?

A That's righto

ft How many whit© students ride in that bus?

A How many white students ride in it? There is a

white school bus driver that goes to U»T<, that drives the 

bus,

ft I am not talking about ¥ eT<, I am talking, about

bow many buses that you are operating from Lake City that 

pick up students in Lake City, that pick up students in 

Clinton, and then you come on to Knoxville, All those 

students are Hegro students, aren't they? Hegro students?



T e s timony of Eugene P o x 3^3

A That3s righto

Q In Lake City there is the high school* no white 

students are transported from Lake City to high school* 

are they?

A Sir? I beg your pardon?

q Bid you understand the question? Do you transport 

any white students from Lake City anywhere else* to go 

anywhere else to school* to high school?

A Ko, sir0

Q, Do you transport white students from Clinton to go 

anywhere else to high school?

A Ho, sir*

Q, Do you operate the buses from lorris ?

A Ho*

Q Then in those two cities* Lake City and Clinton* 

in Anderson County where there are high schools* the only 

students that you transport from there up to Knoxville 

are colored students?

A That!s right*

Q- Ittiat is the distance from Lake City to Knoxville?

A Approximately 30 miles .to Austin High,

$ So that a Negro student living in Lake City must

travel 30 miles to go to high school?

A That5a rights

Q 'White students go to high school right there?



A That5 s right.

MR. LOOBY? Thank you.

TEE COURTS How many colored students do you haul 

from Lake City?

THE WITHESSs There Is about three or four.

(Witness excused.)

MR. LOOBYs If your Honor please, I should like, 

your Honor, for the Court to make a ruling on this testi­

mony that is to be introduced. Otherwise we will be here 

indefinitely. There is no other evidence that is material. 

The only issue involved, if your Honor please, is whether 

there is a high school, and for our present ease, at 

Clinton, as to what opportunities are offered at Clinton 

where there is a high school.

How we have about eight or ten children here from 

different sections of the county. I don5t see where It 

is material.

THE COURTS Can5t you gentlemen stipulate as to 

what these students would testify?

MR. LEWALLENs Your Honor, I wish we could. We 

iave students that live in the same general sections 

of these communities. And we want to show what time they 

get up —  they are complaining about that! what time they 

get to school! what time they get home! but we only can 

that by having the students themselves tell us. And we

Tes t i m o n y  of Eugene P o x  3kb



Proceedings

want to show further that on athletic events or when they 

engage in extra-curricular activities, and they just get

tome

THE COURT! Can1t you introduce a witness on that 

subject and say you have other witnesses who will testify

substantially the same?

MR„ LEWALLEN% We will be happy to do that.

MR. LOOBY? If your Honor please, if it is with 

respect to the matters at issue, I would be happy to do 

it, but if on collateral matters, it is a different proposi­

tion.

THE COURT! In other words, you 'may save your 

exception, and I will rule on the objection as made.

MR. LEWALLENs I was just trying to expedite, 

if your Honor please.

THE COURT? I am glad you are. I hope everybody 

will try to do that.

MR. LEWALLEN% Yes, yourHonor. We want to be as 

speedy as possible, but we certainly don!t want to give 

away our clients1 rights, whatever they may be.

CLYDE MC NEW

called as a witness by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows?

DIRECT EXAMINATION

345

S J § jlJ±EWA LLEN s



Testimony of Clyde M e H e w

Q You are Clyde IfeWew?

A Yeso

q Clyde* you are a student at Clinton High. School?

A Yes* sir0

q, You live In Anderson County?

A Yes* slr„

Q Where do you live in Anderson County?

A Wolf Valley„

Q, What year are you in in school there?

A Freshman,,

Q, You are a freshman. What is the nearest Anderson 

County high school to your home?

A Horris.

0, That is at Horris, Tennessee,, What time do you

leave hora© in the morning?

A Se ve n„

ft You ride a school bus?

A Yes* sir.

ft What time do you get back in the afternoon?

A ij.f30.

ft What time do you get up in the morning* Clyde?

A 5?30o

ft Clyde* what is the condition of the school bus you

ride as to whether it is clean or dirty or crowded or not,

3 I4.6

of what?



Testimony of Clyde M c N e w 3k7

X It i© ©lean.

q Do you know that of your own knowledge? You do 

know that, donJt you?

A Yes.

Q It is clean. Are there many students that ride

your bus?

A Quit© a few.

Q Do you have any idea of the number?

A No, sir.

Q You live near Lonesome Dove, community known as

Lonesome Dove?

A No.

Q Do you know where the community known as Lonesome

Dove is?

A Noo

MRe LEWALLMt You may ask him.

CROSS EXAMINATION

BI MR„ LOOBYg

Q ttsre did you say you live?

A Wolf Valley.

Q How far is that from Clinton?

A About ten miles.

$ How far are you from Norris?

I don5t know exactly.

Why don1! you go to school at Norris?Q



Testimony of Clyde McNew 3MJ

A A bus don't ran by my house. 

q 1 beg your pardon?

A Bus don't run,

q You go to school in Clinton because it is more con­

venient?

A Yes, sir.

MR, LOOBY? That's all*

REDIRECT EXAMINATION

BY MR. LEWALLENt

q There is not a bus that runs by your house going 

to Norris school^ is there?

A No, sir,-

Q You have never requested the board of education

to ran you a special bus* have you?

A Ho, sir.

MR, LEWALLENt All right,

(Witness excused,)

MR, LOOBY? I ask that the witnesses who have testi­

fied be segregated from those that are waiting,

THE COURT? I didn't understand,

MR, LOOBY? The witnesses who have testified are 

going back. They ought to be allowed to remain in here 

or be segregated,

MR, LEWALLEN? We would like to have them in here,

That would be an education for them.



3 k 9

MR, LOOBY s That Is what 1 think. That is why I 

want them In her a a

THE COURTS All rlghts those ?/ho testified can come 

back in the court room.

BILL SMITH

called as a witness by and on behalf of the Defendants, being 

first duly sworn*, was examined and testified as followss

DIRECT EXAMIHATIOH

BI MR. LEWALLERg 

Q You are Billy Smith?

A Bill Smith.

Q, You are a student at Clinton High- School* aren't you?

A Yes*, sir.

Q, What grad© are you In over there?

A 10th.

Q 10th grade. Where do you live in Anderson County?

Do you live in Anderson County?

A Yes* sir.

Q Where do you live In Anderson County?

A Bull Run Creek* about a mile below Clinton.

Q How far is that from the Knox County* Tennessee*

line* approximately?

A About two miles.

Q Bill* what time do you leave home in the morning?

Do you ride a bus?



Testimony of Bill S mith 350

A Yes* siFo

q 'Ihat tint© do you leave home in the morning?

X To catch the school bus out* leave about 20 till 1.

Q 20 till ??

A Yes* sir.

q 6 sii.0 T

A Yes* sir*

q H a t  time do you get back in the afternoon* Bill?

A About 15 to 5.

a l4.sij.5» 15 to 5.
Does that bus g© and take you directly to the 

school* to and from the school* from your home to the school 

and from the school back to your home? Does it go directly 

or stop anywhere?

A It takes me to Claxton* I get off there and wait

about 1|5 minutes before I go to Clinton0

Q, Is that an elementary school in Anderson County?

A Yes* sir*

Q The Claxton school?

A Yes* sir,,

Q You say you wait about ij-5 minutes there?

A Yes* sir*

Q. Is that both eoraing and going?

A Yes* siro

0. Miat time did you get up in the morning* Billy?



Testimony of Bill Smith 351

A About 15 to 6„

q About 15 to 6, 5slj5?

A Yesj, sir.

q Do you know where the community of Lonesome Dove is?

A Y e S j ,  s i r a

Q Is that close to where you live?

A It is about a mile on up the hi^iway.,

Q About a mile on up the highway„ Is that a mile

on up the highway in the direction of Knoxville or direction

of Clinton?

A Direction of Knoxville.

MR0 LEWALLEN% You may ask him„

GROSS EXAMINATION

BY MR. LOOBYl

ft there did you say you live?

A In Bull Run Creek.

ft There is no school therey is there?

A Ho9 sir,,

ft What is the nearest high school in Anderson County?

A Clinton.

MR* LOOBYs That8s all.

REDIRECT EXAMINATION

IgJito_LEWALLENg

ft Is there another high school nearer to you?

Noj, sir.A



Tes t i m o n y  of Bill Smith, 352

q Than Clinton? lot in Anderson County hut in any 

county?

A I donst think so*

MR* LEWALLEMs All righto 

(Witness excused*)

HUBERT ROBBIHS

called as a witness by and on behalf of the Defendants* being 

first duly sworn* was examined and testified as follows?

MRo LEWALLEHs If your Honor please* as carefully 

as we could make our selection of the students* we have 

tried to get them from representative communities and not 

trying to be repetitious in our presentation

DIRECT EXAMINATION

BY M50 LEWALLEH g

Q You are Hubert Robbins?

A Yes* sir0

ft You are a student at Clinton High School j is that 

right* son?

A YeSp sir*

ft How old are you?

A Sixteen*

ft What grade are you in?

A 10tho

ft Do you ride a school bus?

Yesp sir*A



Testimony of Hubert Bobbins 353

q fhere do you live?

A I would say a mile from Oliver Springs,

§ A mile from Oliver Springs, You live in Anderson

County?

A Yesp sir,

(Q, Hhat time do you leave? What time do you get on 

the school bus? Do you attend Clinton High School?

A Yess sir,

Q What time do you get on the school bus in the m o m -  

Ing to come to Clinton High School?

A 5 minutes to 7°

ft 6
THE COURT § 6s55<>

ft (By Mr, Lewallen) 6s„55® What time do you get back

in the afternoon?

A Around 5°l5®

ft Do you come directly to school or does the bus stop

at soa© location and you get off of it or does it bring 

you directly to school?

A Stops at Marlow,

ft Is Marlow an elementary school in Anderson County?

A Yegs sir,

ft You stop there and you get off the bus?

A Yess sir,

ft Bo other students get off the bus there?



Testimony of Hubert Robbins 35k

A Yes, sir.

q How long do you wait there?

A Around 30 minutes0

Q Is that both coming and going to school?

A Yes, sir.

MR. LEWALLENg I believe that5s all.

GROSS EXAMINATION

BI MR. LOOBYg

ft How far do you live from Clinton?

A I donst know just how many miles it is, sir.

ft About how long does it take you to get to Clinton?

A I couldn’t tell you.

MR. LEWALLEHs It is indirectly. If speaking about 

the school bus, it is in the record. He has testified to 

that, if that is what he wants.

MR. LOOBYg I want to know the distance from his 

residence t© Clinton if you can supply it.

MR. LEWALLEHs I don’t know. He doesn’t either, Mr.

Looby.

ft (By Mr. Looby) Is there any high school where you

live?

A Sir?

ft Is there any high school where you live?

A Oliver Springs is th© closest one.

ft That is the closest one?



Testimony of Hilbert Robbins 355

A Yes? sir*

q 'Ihy do yon go to Clinton Instead of Oliver Springs?

I I am in Anderson County*

q You live in Anderson County?

A Yes? sir*
q And Oliver Springs is in another county; is that it?

A 1 think it is*

q So you go to Clinton because it is in Anderson County?

A Yes? sir*

MR0 LOOBY2 That’s all.

REDIRECT EXAMIHAT10H

BY MR. LEWALLENg

Q, You go to Clinton High School because that is the 

high school that has been designated for you to go to?

MRo COWAN; He has answered the question*

THE COURT % That’s all* That is all for this child.

Ha is excited*

(Witness excused*}

7QW BUHL

called as a witness by and on behalf of the Defendants? being 

first duly sworn? was examined and testified as follows*

DIRECT EXAMINATION

K M * ..LEWA LLENg

Q Your name is Von Buhl? and you are a student at Clin­

ton High School?



Testimony of Von Buhl 356

A Yes,

ft What grade are you in?

A 12 th o

ft Where do you live?

A Bull Run Section,, up through there,

q Tb.e Bull Run section. Is that the Bull Run Creek

section?

A Yes, sir,

ft Bow far do you live from the Knox County line?

A About 100 foot,

ft About 100 feet from the Knox County line. Do you

ride a school bus?

A Yes, sir,

ft What time do you get on the sehool bus?

A ?sl5«

ft What time do you get back from school to home?

A I4.OO0

ft You ride the bus back?

A Yes,

ft Does the bus go directly en route to the school or

does it stop some place and you get off?

A Stops at Claxton,

ft You get off the bus at Claxton, and Claxton is an 

elementary school in Anderson County?

A Yes, sir.



357Testimony of Von Buhl 

q How long do you wait there?

A About I4.5 minutes of a morning.

q How long do you wait in the afternoon, if you do?

A We don't wait in the afternoon,

Q Do you play football?

A Ho,

Q, Or basketball? Do you know where Lonesome Dove is?

A Yes, sir,

Q, How far do you live from it?

A About four miles,

MR. LEWALLENs You may ask him,

GROSS EXAMINATION

BY MR, LOOBYg

Q, There isn't any high school where you live, is

there? No high school in the community where you Uve?

A No, sir,

Q And so you have to travel this distance because there

is no high school in your community?

A Yes, sir,

MR, LOOBYi That's all.

(Witness excused.)

MR. LEWALLENs Your Honor, that last witness may have 

appeared to have been repetitious, but they lived in two 

different localities.



35>8

G-LEM SMITH

a witness called by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows % 

DIREOT EXAMINATION 

BY MR, LEWALLMg

Q You are Glenn Smith, a student at Clinton High School? 

A Yes, sir.,

Q Ihat giaade are you in over there?

A 12th, senior.,

Q You are a senior, Glenn, do you ride a school bus 

to Clinton?

A I ride it of a morning*

Q In the morning?

A Yes, sir0

Q Where do you live, Glenn?

A I live in Wolf Valley,

0- How far from Clinton High School is Wolf Valley area 

where you live?

A About six and a half miles.

Q Do you engage in any other activities besides going

to school?

A Football,

^ You are a football player?

A Yes, sir.

 ̂ 'When you engage in football and football practice,



Testimony of Glenn Smith 359

does the bus wait and carry you home?

A Nos sir„

Q How do you get home?

A The best way I can.

ft, Ever walk it?

A Yes* sir* I walk it,

ft Do you live off of highway 25W?

A Yes., sir,

ft That is the road coming from Clinton to Knoxville?

A Yes? sir,

ft How far off the road do you walk?

A About three miles0

ft Do you do what is commonly known as hitch-hike a 

ride home?

Yeag but there isnst many cars going up the road 

is usually walk.

That is as a result of your playing football?

Yess sir.

The school doesn't compel you to play football?

Hoj sir.

It is an extra-curricular activity?

YesP sir.

About what time do you leave home in the morning? 

About 7°3Go

What time do you get back home if you ride the bus

A

so it

ft

A

ft

A

ft

A

ft

A

ft



Testimony of Glenn Smith 360

back home?

A About 20 minutes after If, somewhere around it,

MR, LEWALLENs I believe that's all, your Honor,

CROSS EXAMINATION

BY MB. LOOBYg

There isn't any high school at Wolf Valley wherer
you live, is there?

A Ho, sir,

Q And Clinton is the nearest high school?

A Yes, sir,

MR. LOOBYs That is all,

(Witness excused,}

MR, LEWALLENg How, your Honor, we have Bill Dennis 

and Charlie Smith, two football players in the same capacity 

as this boy, who ride buses and are inconvenienced in this 

matter of getting home,

THE COURT? Will they testify substantially the

same?

MR, LEWALLENg They will testify substantially the 

same thing,

MR, LOOBYg Will they also testify there is no high 

school at their home and Clinton is the nearest high school 

the home ?

MR, LEWALLENs Yes, your Honor,

THE COURT? All right.



361

MRo LOOBYs We will stipulate„

THE COURTS Let the record so show.

BARBARA HOGAN

called as a witness by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as followss

DIRECT EXAMINATION

BY MR. LEWALLENs

Q, You are Barbara Hogan?

A Yes, sir*

Q, A student at Clinton High School?

A Yes, sir.

Q 'What grade are you in?

A 10the

Q 10th grade. Where do you live, Barbara?

A I live a mile and a half from school up from the

Second Baptist Church.

Q, Is that in the town of Clinton?

A Yes, sir.

Q That is a mile and a half from school?

A Yes, sir.

Q How do you get back and forth to school?

A I walk.

Q, You walk in the morning?

A Yes, sir.

Q You walk back in the afternoon?



Testimony of Barbara Hogan 362

A Yes5, siro

Q, Barbara* what time do you get up in the morning?

A I usually get up at six o ’clock.

Q, Hhat time do you get to school?

A About 10 after 8»

Q What time do you get back home?

A Around ij.5 30 0

Q What time do you leave for school?

A 7glj.0o

MR0 LEWALLEHs I believe that’s all.

MR. LOOBYS Come down.

(Witness excused.)

SUE G00DYK0UTZ

called as a witness by and on behalf of the Defendants* being 

first duly sworn* was examined and testified as followss

DIRECT EXAMINATION

BY MR„ LEWALLENg 

Q You are Sue Goodykontz?

A That’s right.

Q A student at Clinton High School? is that right?

A That’s right.

Q Sue* where do you live?

A I live about two miles out of Clinton toward Oak

Ridge.

Q In the direction of Oak Ridge?



Testimony of Sue G-oodykontz 363

A Yes,

Q You ride a school bus?

A That’s righto
Q How far off the school bus route do you live?

A I live about a mile off the school bus route,

Q, In other words, you walk a mile to get to the bus

so that you can ride another mile?

A That’s righto
Q Shat time do you leave home, Sue?

A I leave home about 7s30»

Q Shat time do you get back in the afternoon?

A Well, it is anywhere between I4.S30 and 5°

Q, What time do you get up, Sue?

A I get up about 6§30, I get up anywhere between 6

and 6§30o

Q Is there any shelter provided by the county board of

education where you wait for the bus?

A Ho, sir,

Q, Shat do you do if raining or inclement weather?

A I just walk anywayo

MR, LEWALLMg You can ask her0 

MR„ LOOBYs Ho questions,

(Witness excused,)

SHIRLEY HALE

called as a witness by and on behalf of the Defendants, being



first duly sworn, was examined and testified as follows?

DIRECT EXAMINATION

BY MR, LEWALLEHg

Q, You are Shirley Hale, a student at Clinton High

School?

A Yes, sir, 1 am,

Q Maat grade are you in?

A I am a senior,

Q Shirley, where do you live?

A Well, I live just this side of Elza Gate at Oak Ridge.

Q You live just this side of the Elza Gate at Oak Ridge?

A Yes,

Q. Is that the entrance to the Atomic Energy land there?

A Yes,

Q How far from Clinton is that, do you know, from

the Clinton High School?

A Prom Clinton High School I think it is about seven

miles, but the school bus, the way it goes, it is about 

10 or 11 miles,

Q Shirley, how far do you have to walk to get to the

school bus where you catch the school bus or do you have 

to walk?

A I think it is about a quarter of a mile.

Q Does the county provide any shelter there for you

In case of inclement weather?

Testimony of Shipley Hale 364-



Testimony of Shirley Hale 365

A No, they don't,

Q, Does the school bus that you ride, Shirley, pick

up other students there other than yourself?

A Yes, sir, they pick up some grammar school, students

that go to 01axton S ch o o l0

Q, Do they pick up students all along the route to

Clinton High School? 

k Yes, sir,

Q Do you know of any place in Anderson County along

that school route that you ride that the county provides 

any shelter for any students there?

A No, sir, there isn't anywhere,

MR, LEWALLEN? I believe that's all,

(Witness excused,)

JEAN LEWIS
called as a witness by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows;

DIRECT EXAMINATION
Eg MR, LEWALLENg
§ You are Jean Lewis and a student at Clinton High

School?

A Yes, sir«

Q 'Where do you live?

A About a quarter mile from Claxton grammar school,

Q A quarter mile from Claxton grammar school in Anderson



Testimony of Jean Lewis 366

County?

A Yes* sir,

Q, How far do you live from Gadson?

A It is about one-fourth mile or maybe a little farther.

Q, You live beyond Gadson or north or south* or west

or east of Gadson?

A It is on towards Knoxville from Gadson..

Q You live beyond. You ride a school bus* Jean?

A Yes* sir,

Uhat time do you leave home in the morning to come 

to school?

A At 6g20,

Q 6 s 20, Mhat time do you get back in the afternoon?

A At 5 o ’clock,

Q Does the bus take you directly home or do you get

off of it somewhere and wait?

A Well* sometimes I go directly home* but not usually.

I usually wait for about an hour at CXaxton elementary 

school,

0. Is that coming and going from home to school?

A Yes* sir,

Q Does Anderson County Board of Education or any other

school authorities in Anderson County furnish you any type 

of shelter where you wait on the bus?

A Just the elementary school when w© wait over is all.



Testimony of Jean Lewis 367

Q

hour?

Inside where you wait on the bus 30 minutes

A Yes, sir*

a Are there many or few students that ride the

that you ride onf

A About 100

Q 10?

A Yes, sir*

Q How many students in all?

I There is about 6oo

Q Bo you know how many seats are on that bus?

A 48 I think*

Q if80 Some of them stand?

A Yes, sir*

MR* LEWALLENs 1 believe that's all*

(Witness excused*)

JUNE IRWIN

called as a witness by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows?

DIRECT EXAMINATION

BY MR* LEWALLEN?

Q, You are June Irwin and a student at Clinton High

Schoolf

A That' s right*

Q Tfflhat grade are y>u inf



Testimony of June Irwin 368

A I am a seniors

Q, Do you ride a school bus?

A TeSp sir0

Q, Does Anderson County provide any shelter for you

to wait to get on the sehool bus to keep out of inclement 

weather?

A Bosi sir<>

Q Or rain or cold ?

A Bop sir0

Q, This bus travels over a route and picks up any other

students?

A Yesp sir,

Q Do you know where along the road there are shelters

provided by the school authorities?

A Bop there aren’t any0

Q, You are a student at Clinton High Sehoolp I believe

you stated at first?

A Ye Sc,

Q Moat is the nearest sehoolp high schools in Anderson

County operated by Anderson County Board of Education to you?

A Norris Higho

Q, Do you ride that bus to Clinton High School because

that is the school that is designated for you to attend?

A That’s rightc

Q le there a school bus that goes by your house to the



Testimony of June Irwin 369

Norris High School?

A Ho* sir<,

MR, LEWALLENs I believe that's all.

M o  LOOBYs Com© down.

(Witness excused,)

H11A JOHNSON

called as a witness by and on behalf of the Defendants* being 

first duly sworn* was examined and testified as follows?

DIRECT EXAMINATION

BY MRo LEWALLMs

Q What is your name?

A Hina Johnson„

Q Hina Johnson?

A Yes* sir,

Q You are a student at Clinton High School?

A Yes* siFo

Q, Where do you live?

A Raccoon Valley* two miles from highway 2^W0

Q Raccoon Valley?

A Yes* sir.

Q, Is that close to Gadson?

A Yes* up above it.

Q Up above Gadson?

A Yes* sir.

Q. You ride a school bus* too?



Testimony of Hina Johnson 370

A To 01axton„

q To Clinton High School?

A Yess sir.

(j Does the bus take you direct to Clinton Higi School

or do you get off?

A I get off at Claxton and wait I4.jp minutes for another

bus to pick me up and carry me to Clinton,,

Q Ihat time do you get up in the morning?

A About 5°30o

q "lhat time do you get to school or leave for school?

A 10 after 7°

Q, What time do you arrive back home?

A It is usually l|.s 30 or jp°

Q How long do you say you waited at Claxton school?

A I4.jp minute So

Q ‘May do you wait there?

A These other buses bring children to the grammar

schools and another bus takes us to the high school„

Q, Where do you wait for the bus at Raccoon Valley?

Does the county board of education or any of the school 

authorities of Anderson County provide shelter there for 

you?

A Hop sir„

MR. LBWALLENs I believe that's all.

(Witness exeusedo)



MR„ LEWALLENs Your Honor, we have five other 

witnesses that would testify substantially to the condi­

tions and facts which this witness has just testified 

here, with the exception that they are not in the class 

that waits at the Claxton school„

THE COURTg You agree to that?

MR. LOOBYg Yes, sir.

THE COURTS' Let the record so show.

Jo A. BARKSDALE

called as a witness by and on behalf of the Defendants, being 

first duly sworn, was examined and testified as follows;

DIRECT EXAMINATION

Eg MR. DAVISg

Q Ihat is your name, sir?

A J„ A . Barksdale„

Q, Do you hold any official position in the State of

Tennessee?

A State Commissioner of Education,,

0, Commissioner Barksdale, how long have you been in

the business of education in Tennessee?

A Since 1925°

Q And how long have you been the Commissioner of Educa­

tion of the State of Tennessee?

A Since August 16, 1950.

Q Commissioner Barksdale, do you have any duties as

Testimony of J„ A* Barksdale 3 7 1



the Commissioner of Education concerning the rating of 

high schools in the State of Tennessee?

A The State Board of Education does* and I am ex officio

chairman of the Board of Education.

Q, You are the chairman of that board?

A Yess sir.
Q Do you hairs any set of rules for Negro high schools

and a different set of rules for white high schools? Do 

you hare a different set of rules for Negro and white high 

schools? 

i No* sir.

Q How are Negro high schools rated? Is it the same

or different from white high schools?

A The State Board of Education is charged with the

responsibility for the establishment of rules and regula­

tions for the operation of the public schools in accordance 

with the provision of the General Education Act,, which is 

passed each bi<=annum by the General Assembly,

ft And in rating schools in Tennessee* do you rate

Negro and white high schools with the same standards* 

Commissioner?

A Yes* sir.

ft Are you familiar with the Southern Association of

Secondary Schools and Colleges?

A Only in that for many years I was principal of the

Testimony of J« A» Barksdale 372



Testimony of J„ A, Barksdale 373

Southern Association of High Schools,,

Q Are you familiar with the organization* the Southern

Association of Secondary Schools and Colleges?

A You understand that the state has no connection

with the Southern Association of Secondary Schools and 

Oolleges.

Q Yes* sir* I have been told that. Are you familiar

with the rules and regulations of the Southern Association? 

A I am familiar with the standards which the Southern

Association uses in the approving of secondary schools„

Q, Is there a different set of standards for white

schools than there is for Hegro schools* Commissioner?

A I have not known that there was more than one set

of standards. In my opinion there is only one, 

ft Only one set?

A Yes* sir,

ft Commissioner* is Clinton High School a part of the

Tennessee educational system?

A Yes* sir* it is an approved public high school,

ft Is Austin High School a part of the Tennessee educa­

tional system?

A Austin High School here in Knoxville?

ft In Knox County?

A It is an approved high school,

ft Is there any difference in the method of rating those



Testimony of 30 A. Barksdale 37^

two schools, Clinton High and Austin High School?

A Ho, sir.

Q, Boes the State Board of Education and you as

Commissioner of Education set up the standards for the 

qualifications of teachers at both Clinton High School 

and Austin High School in Knox County?

A The same rules and regulations for the certifica­

tion of teachers apply at the Clinton High School as would 

apply at Austin High School,

Q Is there any difference between the salary rates

of teachers who are colored and teachers that are white 

or any teacher that might teach at Austin High or Clinton 

High School?

A Hot so far as the State of Tennessee is concerned.

There is a single salary schedule,

Q, Commissioner, does the State of Tennessee furnish

funds for the operation of Austin High School here in 

Knox County?

A Yes, sir,

Q Does the State of Tennessee furnish funds for the

operation of Clinton High School in Anderson County?

A Yes, sir.

Q, Are those two high schools a part of the same system

of educations, Commissioner?

A Yes, sir. There is a difference there ~  probably



I should make this statement* that Anderson County is an 

equalizing county* where Knoxville eity schools are a non- 

equalizing system,

Q Commissioner, in speaking thusly of the equalizing

county and non-equalizing county, would you state why 

perhaps one county would be equalizing county and another

would not be an equalizing county?

A The General Education Act provides two systems, two

provisions for payment. The superintendent and the boards 

of education in the local school systems determine which 

route they will go, depending upon how much state aid they 

receive,

Q In other words, if they can get more by equalizing,

they equalize, and if they can get more the other route, 

they go that way?

A That is true, as I understand it.

Q, The state does furnish money to both?

A Bam© basis,

Q, Does that make any difference in the standards of

the schools?

A Has nothing to do, 1 mentioned it only because of

the financial status.

Q Then Austin High School can get more funds on one

route and maybe another high school on another route?

Testimony of J„ A. Barksdale 375

A That!s correct«



Q Commissioner Barksdale^ do all the schools in Tennes­

see operate under the regulations of the State Board of 

Education?

A All the public schools,

Q All public schools?

A Yes, sir.

Q, Is Austin High School a public school?

A YeSp sir,

Q Is Clinton High School a public school?

A Yess sir,

ft Does your office from time to time furnish the public

schools of Tennessee with directives and regulations govern­

ing the manner that the school shall be operated?

A The superintendents of the local school systems

throughout the state are furnished copies of the rules and 

regulations of the State Board of Education from year to 

year,

ft' Are those regulations discretionary or are they 

obliged to follow thems Commissioner?

A They are obliged to follow them or to secure waivers

when there is an impossible situation as could arise in 

some instances.

ft Does the State Board of Education, and you or the

Commissioner of Educationp set up qualifications for super­

intendents of schools in the State of Tennessee

Testimony of J„ A, Barksdale 3 7 6



Testimony of J* A, Barksdale 377

A Yes* sirj, under the authority of certain legislative

act s o

Q And superintendents of the schools must come up to

certain standards in order to be elected or appo inted to 

that officej is that correct?

A That is correct,,

d And that is set up by the State of Tennessee?

A That is correct,,

Q, Are the qualifications of teachers in public schools

of Tennessee determined and established by the State Board 

of Education and the Commissioner of Education?

A That is correct,,

MR0 DAVISg You may ask him*

CROSS EXAMINATION

BY MR* LOOBYg

Q Mr* Barksdale^ I understood you to have said that

the Board of Education has set a single standard of pay 

for teachers throughout the state?

A That is correct*

Q Are you telling us now that in the city of Memphis

the teachers at whit© and colored schools are getting the 

same pay?

A I beg your pardon?

d Are colored teachers and white teachers in Memphis,

Tennessee, getting a single standard of pay?



Testimony of J» A* Barksdale 378

A As far as the State Board of Education.and its

program of public education is concerned, yes*

Q How far is that concerned? How far does that concern

go?

A The State Board of Education establishes minim-urn

program of education, beyond which the state makes no 

contribution* Local school systems may determine their 

own maximum8»

4% In other words, what you meant to have said then

is that the minimum salary schedule is the same for white 

and colored?

A ¥0, I meant to say exactly what I did say, that the

State Board of Education has a single salary schedule that 

makes no discrimination between men and women, white or 

colored*

Q. All right, let's get right down to language that

a teacher can understand in terms of dollars and cents 

which he gets, that he can put in his pocket.

MR* DAVTSs Unless there is relationship to Austin 

High School and Clinton High, I object to the line of 

testimony*

MR* LOOBTg I don't think it is material*

THE COURTS The Commissioner is an educational man* 

You may ask him*

0, (By Mr* Looby) Are you saying that the salaries



which a teacher receives -«* and I am not talking about 

all the technical language which may be garbled —  the 

salary which a teacher receives in Memphis is the same 

for colored and white?

1 As far as the State Board of Education is concerned

and its rules and regulations, yes. We require that the 

city board of education in Memphis pay a teacher the same 

amount of money for comparable training and experience 

regardless of race or sex.

Q Is that a minimum scale or a maximum?

A A minimum. The local school systems determine their

own maximums,

Q I go back to the question I asked you before, that

insofar as the state is concerned, it sets a minimum that 

must be equal to all teachers within the same category?

A That 8 s correct,

Q But insofar as the maximum or what the teachers

really get, you are not saying that that is equal in all 

counties and in all cities in the state, are you?

A That is determined by the local school systems from

local funds and not state funds,

Q That's what I thought.

Now with respect to all your testimony relative to 

the place which the county board of education plays in this 

and the part which the State Board of Education plays, you

Testimony of J, A, Barksdale 379



are simply talking about General Education Acts, the laws 

of the State of Tennessee as found in the Tennessee statutes? 

That is what you are talking about?

A That is correct* The State Board of Education has

that responsibility*

Q And that is determined by statute?

A The responsibilities and authority of the State

Board is determined by statute.

Q, So that all you have been examined on was with

respect to the General Education Law as well as the Private 

Acts referring to education?

A Well, I don't know as I understand your question.

Q I will ask you this question? Maybe you will under™

stand this* Do you know that the county board of education 

of Anderson County “«=* do you know under what law it operates? 

A As far as the state is concerned* it operates under

the General Education Act* Chapter 9j> Public Acts of 19̂ 4-9s 

and the rules and regulations of the State Board of Educa­

tion for the implementation of that Act*

Q And you are not familiar with the Private Acts or

that Anderson County Board of Education operates under 

Chapter 375 of the Private Acts of 1939?

A I am not familiar with the Private Acts*

Q You don't know the act the county board of education

exists under and how it operates?

Testimony of J* A„ Barksdale 3^0



A 1 am not familiar with that specific act.

Q, Let’s go back to the Southern Association,, Did you

happen to know that there is a Southern Association of 

Colleges and Secondary Schools for Negroes?

A I am not familiar with that organization.

Q Did you know that the Austin High School is a member

of that association?

A I am not sure at all.

-Q As a. matter of fact, Mr. Barksdale, you are not

familiar with the association, are you?

A 1 beg your pardon?

Q You are not familiar with the association?

A I am familiar with the s tandards of the Sou them

Association for the approval of secondary schools.

Q, Hhere is the headquarters of that association?

A Of the Southern Association of Colleges?

Q Yes,

A Atlanta.

Q, Hho is the secretary?

A I am not certain.

0, You don’t know?

A I am not certain.

Q Isn’t it true, Mr. Barksdale, that a State Board of

Education sets certain minimum standards for the different 

counties, but over and above that minimum standards that the

Testimony of Jo A* Barksdale 38l



Testimony of Jo A, Barksdale 382

local counties actually control their system of education? 

A The same standards apply to all counties as far

as the State Board of Education is concerned,

Q That is the minimum standard?

A That is exactly right,

q But over and above that, each county, each munici­

pality, sets its own standard over and above the minimum?

A They are privileged to do that,

Q And each county controls its own system, hires its

own teachers, and up over the minimum sets its own salary 

scale| that is true, isn’t it?

A That’s correct,

MR, LOOBYs That’s all,

REDIRECT EXAMINATION

BY MR, DAVISg

Q Are you familiar with the standards of Knox County

schools?

A Only as the state regulations apply,

Q You are not familiar then with the salary schedules

in the city of Knoxville?

A I am not, I know it is above the state salary

schedule,
MR, DAVIS1 That’s all.

(Witness excused,)



383

HARRY GARTER

called as a witness by and on behalf of the Defendants* being 

first duly sworn* was examined and testified as follows; 

DIRECT EXAMINATION.-..... 'g....... ..—
BY MR, DAVIS?
Q, llhat is your name, sir?

A Harry Carter,
Q Mr, Garter* do you hold a position with the Depart­
ment of 'Education in the State of Tennessee?

A I do,
Q, What is that position?
A Executive Assistant to the Commissioner.
Q How long have you been with the Department of Educa­
tion of the State of Tennessee?

A Since August l5» 1937*
Q, How long have you been in school work, Mr. Carter?
A I taught 23 years In the class room* and then I have

been with the department since August* s37°
Q, You taught 23 years prior to beginning your work with

the Department of Education?

A That5s right.
Q Mr. Carter* you are familiar with problems of

students going to and from school?
A In a general way* yes.
Q Is it reasonable or unreasonable to require the



Testimony of Harry Carter

students to travel for I4.0 minutes from the home to school?

MRo LOOBYs If your Honor please, that is a natter 

that, insofar as this is involved in this case, the Court is 

going to decide.

MR, DAVIS1 As an educator we can take advantage of 

his experience.

384

THE COURTS Do you object?

MR. LOOBYs Yes, sir.

THE COURTS Let it go Into the record subject to your 

objection. If it becomes necessary, I will pass on the 

objection when I pass on the merits.

A Will you state your question again, please?

(By Mr. Davis) As an educator, Mr. Carter, do you 

consider It reasonable or unreasonable for a child to travel 

for I4.0 minutes from his home to school?

A On a school bus?

Q. Yes, sir.

A Ho, that is not unreasonable. That is reasonable.

It Is reasonable to require him to do that.

Q What Is the standard which the State of Tennessee

has set up for children who ride school buses and children 

who go to and from school? What is the standard time which 

they say is unreasonable when It gets beyond that?

A I don81 know that I could say just what the time is.

We do have children in the state that travel, sc I am



Testimony of Harry Carter 385

informed by our division *»-

MRo LOOBY? Just a minute, if your Honor please.

MR0 DAYIS? That wouldn’t be admissible.

A I don’t know that there is any set time.

Q, (By Mr. Davis) No set time.

Mr. Carter, are you familiar with Austin High 

School here in Knoxville, Tennessee?

A No, sir, I am not directly except just through the

records as they come to the Department of Education.

Q, Through the records of the department?

A That’s right.

Q Are you familiar with Austin High School through the

records of the Department of Education?

A Yes, I think so.

Q What is Austin High School’s rating in the State of

Tennessee as a high school?

A It has a good rating. It is an approved high school

by the State Board of Education.

Q Do you know whether or not it is approved by the

Southern Association of Secondary Schools and Colleges?

A I would have to answer that this way? It is my

understanding that it is. The Southern/Association of 

Secondary Schools and Colleges is separate from the State 

Department of Education. I have access to their records, 

but I haven’t looked it up. But it is my understanding that



Testimony of Harry Carter 386

it is.

Q, Bo yon know whether or not there are two sets of

standards for the rating of the high schools$ one for 

white and one for colored9 in the Southern Association of 

Secondary Schools and Colleges?

A Two sets of standards?

Q, Yes,, sir,

A Sever heard of it*

Q, How many sets of standards are there?

A Never heard of hut one,

Q, One set of standards.. Mr. Carter * do you know from

the records of the Bepartment of Education or from your 

own personal knowledge whether or not children living in 

one county are transported to another county to school

in our state school system?

A Oh, yes. That8s done. By agreement between the

boards of education of the two counties or a county and 

city,

Q Is that done under the directive and regulations

of the Department of Education?

A Yesj and it is provided for in school law,

Q, What circumstances would bring that about under your

regulations, Mr, Carter?

A Wells where children are living in one part of the

county and it is more convenient to a school in another



county,, And then* to give one example* in Kenton* Tennessee, 

it is on the line between Obion and Gibson Counties. The 

line runs almost center through the town. But the school 

is located in Obion County. Of course, arrangements are 

made there for Gibson County children in that vicinity to 

attend the Obion County School. And there are others, but 

that is one example.

Q Mr. Carter* do you know how many high school students

are required to attend a high school before one can be 

set up under the regulations of our State Board of Educa­

tion?

A An average daily attendance of 75.

Q, That is necessary?

A Yes* sir.

Q, Before a high school can be established?

A That's right.

Q, Do you mean an accredited high school, Mr. Carter?

A That's right.

Q One that could be classed?

A Approved by the State Board of Education.

Q Are there many or few children in the State of

Tennessee who are required to go from one county to another 

county to school?

A Well* I think that is true in a number of counties

in the state. I couldn't state just how many.

Testimony of H arry Carter 387



■&
 >

Testimony of Harry Carter 388

Q, You don't know in point of number. You know it is

not an infrequent occurrence?

X Ho * it is not an infrequent occurrence.

Q, And that is done under your regulations and directives,

is that not so?
Yes, sir.
And is our school system a state-wide system, Mr„

Carter?

A Yes, it is,

THE COURTi Yes, I am sure that is true.

HR, DAVISt You may ask him, Mr, Looby,

CROSS EXAMINATION

BY MR, LOOBYs

q Mr, Carter, in determining whether I4.O miles Is a

reasonable or unreasonable distance, you would have to know 

the circumstances connected with that, wouldn't you?

A J4.0 miles? I understand his question is I4.O minutes,

Q, I4.0 minutes, I4.O minutes, whether It is reasonable

or unreasonable, you would have to know the circumstances, 

wouldn51 you, or would you just say, make the blanket state­

ment and say i|.0 minutes is not unreasonable?

A I don't think I4.O minutes is unreasonable if they

pick the child up in the morning prior to opening of school. 

Now the time of day, of course, might have something to do 

with that,

Q And the location of the school would also have some­



Testimony of Harry Carter 389

thing to do with it* wouldn't it?

A Roads, yes*

ft So that you have to know the facts before you know

whether it is reasonable or unreasonable* isn't that true, 

sir?

A 1 don't think it would be unreasonable to ask a

child to travel in a school bus lj.0 minutes to school,, 

ft But you would have to know the distance that the

child is going before you know whether I4.O minutes is 

unreasonable, wouldn't you?

A I  think i f  he was traveling I4.O minutes maybe over

mountainous roads and have to get up before daylight, those

factors, of course, would enter into it*

ft If the school were located just about half or three-

quarters mile, would you say it would be unreasonable?

A How how is 'your question?

ft If a school were located within three-quarters cf a

mile, one-half to three-quarters of a mile, would you say 

or consider that I4.O minutes to be unreasonable?

A To travel a mile, three-quarters of a mile?

ft Half to three-quarters of a mile?

A Why would you spend I4.0 minutes to travel a h a lf mile?

ft I am asking you whether or not you would consider

it reasonable or unreasonable?

A To spend 1[0 minutes to travel half a mile?



Testimony of H a r r y  Carter 390

Q, Yes, sir,

A I don't see why they would spend I4.O minutes in

traveling a half mile.

Q, You would consider that unreasonable, wouldn't you?

A To spend lj.0 minutes to travel half a mile? Yes*

Q, Can't you answer that question?

MR, DAVIS; He said yes,

Q, (By Hr, Looby) All right, sir,

How you say that a daily attendance of 75 is neces­

sary for a high school, Who set that standard?

A # I think that's in the state law,

Q You think so, Do you know whether it is or not, or

whether it isn't?

A It is in the state law 75 is required.

Q Can you tell us whereabouts we can find it in the

state law?

MR, GILBERTSON; I will be glad to find it for him.

I have got the section right here,

THE COURT; Hand it to Mr, Looby,

MR, GILBERTSON; I think I have that volume with me, 

MR, LOOBY; We have the volume. Just give us the

number,

MR. GILBERTSON; It is 2393.7 , Mr. Looby.

Q, (By Mr. Looby) While we are looking that up, I

believe that you gave an example of Obion and Gibson Counties



Testimony of Harry Carter 391

where the county line runs right through the town and the 

school was on one side in one county and under those condi­

tions the children in one county went to school in another 

county, and that was because of the convenience, wasn't it?

A That5a righto
Q And ordinarily where these provisions are made, that

was with respect to the convenience or- the nearness of the 

school, wasn't it?

A That's righto

Q How the 75 to which you referred had only to do

with senior high schools, didn't it?

A That's right. Senior high schools, Hot junior

high schoolso Senior high schools,

Q So a junior high school may be set up with less?

A That's right,

Q, The average attendance of less than 7$.

Are you familiar with the records of Clinton High

School?

A Ho, sir„

Q You are just familiar with Austin High School?

A Ho, sir, I am notj just in a general way with Clinton

High Schoolo I didn't look up on any of the high schools 

beforehand on any particular school in the state,

Q You said that in a general way you know that Austin

High School was an approved school?



Testimony of Harry Garter 392

A That's righto

q In a general way do yon know if Clinton High School

is an approved school?

A It is an approved school.

MR, LOOBYs It is an approved schools, That's all. 

REDIRECT EXAMINATION

BY MRo DAVISg
Q Mr. Carter, aside from the Tennessee statute that

requires a minimum daily attendance of 75 in order to 

have an approved school* in your opinion as an educator* 

would it be possible to have an approved high school* 

with* say* 30 students* that would give the children all 

the advantages* say* of a high school of lf>0 or more?

A I would answer that this way* that a high school

with 7 5* with an a-d-a of 75 cannot give the children 

the advantage that they can in the larger schools of an 

a=>d*»a of 200 to 250o

MR. DAVISg That's all*

(Witness excused.)

MR. EEWALLENI Your Honor* could we have just a 

short recess at this time?

THE COURT 1 Take a short recess0 

(A recess was hadD)

THE COURT? Are we ready?

MRo LEWALLENs Yes* your Honor0 The defense rests.



393

MR. LOGBY§ No rebuttal proof,, your Honor,,

THIS WAS ALL THE EVIDENCE INTRODUCED ON THE TRIAL OF THE CASE.

(Whereupon, following argument of counsel for the 

respective parties, the Court granted the plaintiffs and 

defendants l5 days following receipt of the transcript 

of testimony to submit briefs, 10 days thereafter to 

plaintiffs to submit reply brief, and If? days to defendants 

to submit reply brief5 and the Court took the ease under 

advisement. )

-» •» »  % *

CERTIFICATE

I, Ada Belle Thomas, Official Reporter of the United 

States District Court for. the Eastern District; of Tennessee, 

do certify that the foregoing transcript is a true, full, 

and correct transcript of all the evidence introduced and

heard in the trial of the foregoing cause, No. 1.555 Civil, 

Joheather MeSwain, et al vs. County Board of Education 

of Anderson County, Tennessee, et al, when it was tried 

in the United States District Court for the Eastern District 

of Tennessee, Northern Division , at Knoxville, February 

13 and lip, 1952, before his Honor, Robert L. Taylor, Judge 

of said Court.

IN TESTIMONY WHEREOF, witness my hand this the 

llpth day of March, 1952.

a/ ADA BELLE THOMS 
Ada Belle Thomas 
Official Court Reporter



39k

HEMQRATOTJII

(Filed April 26, 1952c)

The plaintiffs are negroes, the infant plaintiffs, 

at the time the action was commenced, being students of 

high school age, all residing in Clinton, Anderson County, 

Tennessee,, It is a suit for declaratory judgment, pur­

suant to 28 TJ.S.C*, secs, 13^3(3), 2201 and 2202, and for 

an injunction restraining defendants from continuing 

alleged usage and customs which deny the student plain­

tiffs rights guaranteed to them under the equal protection 

clause of the Constitution of the United States, Amendment 

Fourteen, sec, 1, implemented by Title 8, U0 S. C0J secs. 

lj.1 and lj.3 .

This was commenced as a class action under Rule 

23, Federal Rules of Civil Procedure, the named plaintiffs 

purporting to represent children of both high school and 

elementary grades„ The original complaint alleged dis­

crimination against negro students of elementary grades, 

but this phase of the suit was abandoned, as indicated 

by statements of counsel for plaintiffs at the hearing.

The action as it now stands relates to negro students 

of high school grade residing in Clinton,, It has not 

been pursued as a class action with respect to all negro 

studnets of high school grade residing in Anderson County, 

the proof offered by plaintiffs being confined, except



Memo r a n d u m 395

perhaps incidentally, to those negro students who reside in 

Clinton., Any other approach would have been inconsistent 

with the theory upon which plaintiffs base their claim of 

unconstitutional discrimination. Their theory, incorpo­

rated in the words 15similarly situated," refers not to 

other negro students, but to white students who, likewise, 

live in Clinton, Inasmuch as it is not pursued as a class 

action, it will not be treated as one,

A number of motions were mad© prior to the hearing. 

Defendants Irwin and Brittain moved for dismissal as to 

them for failure to state a cause of action against them, 

and for failure to join an indispensable party defendant, 

the indispensable party referred to being the State of 

Tennessee, This motion was tentatively overruled, and 

is now finally overruled, for the reason that sec, i|_3 ,

Title 8, U,S„G,, operates upon persons, not upon the 

sources of their authority. Defendant school board 

also moved to dismiss for failure to state a cause of 

action and for designation of a non-existant administra­

tive board. The last named objection was cured by an 

amended complaint which correctly designated the board.

As to whether the cause of action stated in the amended 

complaint was a tenable one was left to be determined 

pursuant to hearing.

The student plaintiffs are citizens of the United



M e morandum 396
States and of the State of Tennessee, They are bona fide 

residents of Clinton, They are all within the statutory 

age limits for eligibility to attend public high schools 

and have satisfied all requirements for admission thereto. 

They are presently enrolled in a high school in Knox 

County, which adjoins Anderson County, The adult plain­

tiffs are likewise citizens of the United States and of 

the State of Tennessee and bona fide residents of Clinton. 

They are taxpayers of Anderson County and of the State of 

Tennessee, They are either the parents or the guardians 

of the student plaintiffs and by state law are required 

to send the student plaintiffs to school, Tennessee Code 

secs, 221+2 .1 and 22q2.3„

As examination of the facts will show, this case 

is somewhat unique in its plaintiff viewpoint. Briefly 

stated, it is, that because the plaintiff students and 

some of Anderson County*s white high school students 

reside in Clinton, they are similarly situated, by 

reason of which it is an unconstitutional discrimination 

against the negroes to require them to attend a high 

school located outside of Clinton and in an adjoining 

county. Plaintiffs pin-point their case upon Clinton, 

and confine their proof to the effect of this alleged 

discrimination upon the Clinton negroes. It is a situ­

ation that exists in hundreds of towns, in Tennessee



Memor a n d u m 397
and out, where negro students who live near a white school 

must pass it by and go to a negro school located at vary­

ing distances beyond, and it exists at all levels,, from 

the elementary school to the colleges or university.

This "similarly situated” theory is the doctrine of equal 

protection carried to its ultimate extreme. Counsel for 

plaintiffs deny they are attacking segregation of races, 

but in the situation here stated, their action, as will 

be seen from a review of the facts, can be nothing else.

In,all of Anderson County, there are only thirty 

negroes qualified for high school attendance. Before 

an accredited high school can be established in the 

State of Tennessee, it must have an average daily atten­

dance of seventy-five, Code sec, 2393»7« Establishment 

of a separate, accredited high school for negroes in 

Anderson County, therefore, is beyond legal possibility 

because of the cited statute. In Tennessee, also, white 

and colored children are required by law and by the state 

constitution to attend separate schools. Art, 11, sec,

12, Constitution of Tennessee; Code secs, 2377 and 2393-3° 

When the student plaintiffs sought admission to Clinton 

High School, which is a school for whit© children, the 

defendants were in effect asked to violate the constitu- 

t1on and statutes of Tennessee, for admitting the negro 

students would have amounted to that.



Memo r a n d u m 398
Prior to this incident, defendants had arranged 

for the negro high school students to attend a high 

school for negroes at LaFollette, in the adjoining 

county of Campbell,, This is an accredited high school 

with a class ”C” rating, whereas Clinton High School 

has the higher class ”A W rating. Subsequent to the appli­

cation and refusal with respect to negro attendance at 

Clinton, defendants made arrangements for negro high 

school students of Anderson County to attend Austin High 

School for negroes, at Knoxville, in the adjoining county 

of Knox, Austin High School has an "A-l” rating, which 

is higher than the ”An rating which Clinton has.

In this situation plaintiffs have no ground for 

complaint, in so far as equal educational opportunity 

goes, and it is doubtful that they feel aggrieved. Those 

of plaintiffs who have appeared in court in this case 

represent an excellent type of citizenship. There was no 

hint of racial hostility or ill-will on either side and 

there is no reason to believe that this lawsuit stems 

from a feeling of very deep grievance upon the part of 

plaintiffs„

This aspect of the case is illustrated by the 

following colloquy which occurred during the cross- 

examination of Helen Jarnigan, a negro student of Anderson 

County who rides to Austin High School in a bus furnished



Memor a n d u m 399

by the defendants?

MR. LEWALLEHs Are you happy in Austin High School? 

As Yes.

Qs You like your fellow students there?

As Yes.

Qs You enjoy the school?

As Yes„

Qj Is it your desire to go to the Clinton High

School?

MR. LOOBYs Just a minute.

MR. LEWALLEN; Hear your home?

MR. LOOBYs I think her desire has nothing to do 

with It.

THE COURTS Do you object?

MR. LOOBYs Yes.

THE COURT? Overruled.

MR. LEWALLEHs Is it your desire, Helen Ann, as a

student —

MR. LOOBYs We except, if your Honor please.

THE COURTS All right.

MR. LEWALLEHs — to attend at Clinton High School 

that is now in operation down below your home?

MR. COWAH (of counsel for plaintiffs)? May it 

please the Court, this is not a party plaintiff. She 

is a witness.



Memor a n d u m

MR. LEWALLEls This is cross-examination.

MR. LOOBYs Her desire, if it were one of the 

plaintiffs, it might be material, but as to what she 

desires --

MR. LEWALLENs She is a member of the class.

THE COURTS She is a member of the class. I over­

rule the objection, gentlemen.

MR. LOOBYs All right, we except.

MR. LEWALLENg Will you answer my question?

As Well, it doesn't matter as far as going to 

school there, I would like to go to school because it 

doesn't matter about the races because they are human 

just like I am, and it would be close and more convenient.

a? You say you are happy at Austin High School?

MR. LOOBYs I withdraw my objection, your Honor.

THE WITNESSs As far as the school is concerned, 

it makes it inconvenient for me, but I am happy as far 

as the school is concerned.

Q§ If you lived at Clinton and attended Clinton 

High School which is now in operation there, you would 

have no inconveniences?

As No. Not as mueh so as I do now.

Qs Is it your desire to enroll in Clinton High

School?

As It doesn't matter.

[(.00



Memor a n d u m 1+01

Qf It doesn’t matter?

As No.,

Prom the whole record in this casa, of which the 

foregoing excerpt is illustrative, it is hard to avoid 

a conclusion that the student plaintiffs are not aggrieved 

at present arrangements. Nor are they happy in their role 

of hostility toward defendants, who are their neighbors 

and personal friends. Prom the point of view of counsel 

for plaintiffs, how the plaintiffs feel about the situ­

ation !,has nothing to do with it.”

The student plaintiffs reside in Clinton, within 

walking distance of Clinton High School. They are given 

free transportation by bus from Clinton toAustin High 

School, a school for negroes in Knoxville, 19 miles from 

Clinton, Their tuition in Austin High School is paid by 

Anderson County, Their bus leaves Clinton about ?«30 a.m. 

and arrives at Austin High School about 1+0 minutes later. 

The bus Is practically new, is cleaned regularly, has a 

capacity of 36 passengers, and hauls on the average 

about 22 students, all of whom, of course, have seats.

Clinton High School, whose building was originally 

Intended to accommodate 1?5 students, actually accommo­

dates about 600. A large proportion of the 600 are brought 

to Clinton by buses, some of which have a round-trip of 

65 miles. Many of the white high school students catch



Memorandum

their 'buses before 7?00 o'clock, some as early as 6! ipO.

Some of these have lay-overs at intervening elementary 

schools, where they wait while their buses make side 

trips to collect other students, the result being that 

an hour or more is required to make the trip from home 

to school, »

The negro plaintiffs say that defendants do not 

provide them with roadside shelters. It is equally true 

that no shelters are provided for white students. The 

negro plaintiffs say that their bus is dirty and that by 

reason thereof they have rather large cleaning bills.

Yet the white students ride similar buses and their clean­

ing bills presumably would be comparable to those of 

plaintiffs. The negro plaintiffs say that they have to 

get up earlier in the mornings than they would have to 

get up if they went to school in Clinton. They give 

their getting-up time as about, 5 s30 for the mothers 

and from 5 s 30 to 6?30 as getting-up time for the negro 

children. Representative white high school children get 

up at 5s30 and leave home at 6sI|_0 to 6s55. The negro 

students say that, because they have to catch their bus 

for home after school, they are unable to engage in 

after-school activities, such as football and basketball. 

Buses do not stay after school to accommodate white child­

ren, but those who are determined to participate in after­

ij.02



Memorandum

school activities provide their own transportation home.

For instance, one white boy who plays football testified 

that he sometimes walks home* a distance of miles.

There is no complaint that Austin High School is 

inferior to Clinton High School. Indeed, the proof shows 

that on the whole Austin is the better school., It offers 

a number of courses presumably of especial value to negro 

students which are not offered at Clinton,, It is less 

crowded than Clinton, It has a school cafeteria, whereas 

Clinton has had to give up its cafeteria in order to use 

the space for a classroom, Clinton has a Class ”A n rating 

with the State* whereas Austin has a Class ,fA-l” rating, 

which is higher than Class "A,” Austin is a member of 

the Southern Association of Secondary Schools and Colleges; 

Clinton is not. The per capita cost of sending a white 

student to Clinton is $120. The per capita cost of send­

ing the plaintiff negroes to Austin High School is $32f?.

All things considered, 'the negro students have available 

to them an educational opportunity which is superior to 

that available to white students at Clinton, In addition, 

Austin High now has under construction a modern high 

school building which will be ready for use when the 

1952 fall term of school convenes. The building now 

being used by high school students will then be used by 

elementary students.

403



Memorandum

Th® inconveniences complained of by plaintiffs upon 

close examination appear quite insubstantial. The testi­

mony of Mrs, MeSwain, one of the adult plaintiffs, is 

illustrative. She said she had to get up at 5 s30 when 

her daughter Joheather (through high school now, and no 

longer a plaintiff) was riding a bus to school. Follow­

ing is her testimony on this points

MR, LEWALLEHs I believe you testified, didyou not, 

that you got up around six o !clock in the morning or 5 *i|5  

when your daughter was going to Austin High School in 

Knoxville?

MRS, MC SWAIII 5*30,

Qs 5 *30?
As 5*30.

Qs ’What time did you get up, say, this morning?

As This morning I was up at six o 1clock.

Qs What time do you normally get up on all occa­

sions?

As Well, all the way from 5*30 to 6s00.

Qs , , . The fact that she is not in high school 

or npne of your children are in high school is not deter­

minative of the time you personally get up, is it, Mrs.

MeSwain?
As Ho, but I have other children in grammar 

school that I have to get up just the same.

h  o4



Memo r a n d u m

Qs Have to get up at the same time?

As Yes, sir,

Qs Those children that you have in the elementary 

school, you say you get up at this same time for they are 

in the elementary school at Clinton?

As That's right.

So the fact that you had a daughter going to 

Knoxville to Austin High School then didn't determine 

your way of getting up or time of getting up?

As Well, in a way it didn't, and in another way 

it did, because I had to get up at 500, Well, now I 

really don't have to get up at 5*30 now, but I do just 

the same.

The getting-up time at the home of Helen Jarnigan, 

heretofore mentioned as a witness for plaintiffs and a 

negro who attends Austin High School from Clinton, shows 

up on analysis in a somewhat different light. She admits 

that she leads a more luxurious life than some of the 

other negro students. While her mother gets up at 5°00, 

she stays in bed until 6s30, her breakfast being pre­

pared for her by her mother. She testified that if she 

were going to school in Clinton, she would not have to 

get up until 7 ?3 0,

It is shown that the bus for Austin High School 

leaves Clinton about ?s30. In order for this student



Memor a n d u m

to catch the 7 0 0  bus, she has to get up at 6 0 0  and her 

mother has to get up at 5*00, But it appears that her 

father, who is employed in the section department of the 

Southern Railway, has to be at his job at 7*30* Yet it 

is not explained whether Mrs. Jarnigan gets up at 5*00 

in order that her daughter Helen can catch the school 

bus at 700, or that Mr, Jarnigan can be at his job at 

7*30,

When counsel for defendant called for names of 

other negro students who ride buses to Austin High School 

counsel for plaintiffs objected, and the following collo­

quy occurred?

MR. LEWALLERi Your Honor, I just want to show 

that the activities and the inconveniences which Miss 

Jaranigan is experiencing to get an education is inci­

dent to all people getting an education. I think we are 

entitled to show, your Honor, for comparison purposes.

MR. LOOBYs If your Honor please, I don’t think 

it will be relevant to show the inconvenience of somecne 

who may be experiencing It in some remote or unconnected 

area, The only thing relevant is to students from Clin­

ton as to whether their condition exists as to white and 

colored students In Clinton, Tennessee. That is all we 

are talking about. That Is all this case is about. It 

way be that somebody In West Tennessee whose experience



M e m o r a n d u m koj

Is not only more difficult, and Washington had to walk 

miles to get to school. But that has nothing to do with 

this ease. "

What it is that has to do with this case is 

to 'be gleaned from a 325-page transcript of testimony, 

plus a number of stipulations. Reduced to its lowest 

possible terms, what has to do with this case is thiss 

In Clinton, Tennessee, there is a high school for white 

students, but no high school for negroes. The negro 

students, in order to have the advantage of a high school 

education, are transported to a negro high school in 

another county. This, the plaintiffs claim, is a denial 

to them of that equal protection of the laws guaranteed 

to them by the Fourteenth Amendment. Even though they 

attend a superior high school and are happy in their 

present situation, that, it is insisted by counsel for 

plaintiffs, has nothing to do with anything. Defendants, 

it is insisted, should be enjoined from continuing this 

practice of inequality.

But this transcript shows that there are only 

three high schools in Anderson County and that of the 

H 69 white high school students who attend these schools, 

a very large proportion are transported in school buses 

to one school or another. In many of the buses that 

have a seating capacity of lj.8, passengers number as high



Memorandum

as sixty, which means that some must stand. Moreover,

118 white high sehool children of Anderson County are 

attending high schools outside Anderson County, being 

required in many eases to do so by the school authorities, 

who furnish transportation and tuition for them to and 

in adjoining counties, This inter-county school atten­

dance is authorized by statute and is not a county- 

inspired arrangement. Code secs, 2393,15 and 2ij.72,

Jfor do the high schools of Anderson County offer 

identical courses. All adhere to the standard curricu­

lum, by necessity, but courses that offer special oppor­

tunities are present in some and absent in others. Prom 

a purely academic standpoint, all of this presents a 

situation of discrimination and inequality, of which 

probably more than half of the white students of the 

county might have reason to complain. But is it a 

denial of the equal protection of the laws?

Section 1 of the Fourteenth Amendment is as 

follows I

,!A11 persons born or naturalized in the 

United States, and subject to the jurisdiction 

thereof, are citizens of the United States 

and of the State wherein they reside, No State 

shall make or enforce any law which shall 

abridge the privileges or immunities of citi-

1|08



Memo r a n d u m k09

zens of the United States; nor shall any State 

deprive any person of life, liberty, or property, 

without due process of law; nor deny to any person 

within its jurisdiction the equal protection of 

the laws.”

In this action no attempt was made by plaintiffs 

to make the State of Tennessee a party defendant, though 

the quoted section of the Fourteenth Amendment operates 

uppn States„ Plaintiffs are proceeding under 8 U„S„C „ 

secso Ipl and I4.3, which operate upon individuals. Defen­

dants have insisted that the State is an indispensable 

party. While the Court, as heretofore indicated, does 

not agree with this insistence, it is apparent that 

what has occurred In Anderson County in this school 

situation stems from the power, authority and prohibi­

tions of the State, This is a matter of concern to 

every county in the State, and to the State Itself. 

Obviously It was more advantageous to plaintiffs to 

treat Anderson County as if it were a state, having a 

state’s autonomy within the federal union. It could 

thus be put in the position of having required its 

negro students to go outside of autonomous boundaries 

in order to attend school. When a state did that, 

though the state provided equal facilities In another 

state, it was long ago condemned as a denial of equal



Memorandum

protection,, Missouri ex rel Gaines v. Ganada, 305 U.S. 

337„ Here is Anderson County, so it would be made to 

appear, an autonomous political unit, a state within a 

state, which is sending its negro students into an adjoin 

ing autonomous political unit.

But the Court must reject any theory that what is 

being done, is being done by a county.

Section 12 of Article XI of the Constitution of 

Tennessee provides:

"Knowledge, learning and virtue, being essen- 

tial to the preservation of republication insti­

tutions, and the diffusion of the opportunities 

and advantages of education throughout the dif­

ferent portions of the State being highly con­

ducive to the promotion of this end, it shall be 

the duty of the General Assembly, in all future 

periods of this Government to cherish literature 

and science.”

The Code of Tennessee contains the following 

pertinent provisions:

"Section 2306. System of public education. 

There is established a system of public education.

"Section 2307. Administered by whom. The 

system of education shall be administered by (1) 

the commissioner of education, (2) the state board



'Memorandum

@f education* (3 ) the county superintendents, (ij.) 

the county and city boards of educations”

"Section 2308, Divisions of department of 

educations The department of education is

composed of the following divisionss

"1, Elementary schools,, the head of which shall 

be the supervisor of elementary schools,

”2, High schools, the head of which shall b© 

the supervisor of high schools,

"3 , Certification, the head of which shall be 

the supervisor of certification,

”ij.0 Vocational education, the head of which 

shall be the supervisor of agricultural education. 

Vocational rehabilitation, the head of 

which shall be the supervisor of vocational 

rehabilitation,

”6, Library and archives, the head of which 

shall b© the librarian and archivist,

”7 , Registration, the head of which shall be 

the registrar of professions and trades,”

"Section 23G9» Department’s offices, powers, 

duties. The department of education shall have

its offices in the state capitol and its cornmis- 

sioner shall be vested with such powers and re­

quired to perform such duties as are set forth

lj.ll



In this law and shall be charged with the administra 

tlon of such laws a a the legislature from time to 

time may enact, 81

"Section 23llf» Commissioner is chairman of 

board! special duties enumerated. The commis­

sioner shall be ox-officio, member and chairman 

of the state board of education, and shall have a 

vote on all questions coming before the board, and 

it shall be the duty of said commissioner of edu­

cation,

"(1) To appoint all heads and subordinates 

in the department and divisions thereof, except 

supervisor of agriculture, supervisor of trades 

and industry, supervisor of home economics, super­

visor of rehabilitation who shall be elected by 

the state board of education, who shall fix their 

compensation subject to the approval of the 

federal board, if required, except teachers and 

other county school officers,, All appointments 

made by the commissioner shall be made subject 

to the governor's approval,,

"(2) To collect and publish statistics'and 

other information relative to the public school 

system,

” (3) To make tours of inspection and survey

Memorandum if 12



iemorandurn t o

among the public schools throughout the state and 

to direct supervision through the divisions of 

the department,,

” (Ip) To require all teachers to attend county 

institutes or educational meetings on the date at 

the hour and place designated by the county super- 

intendentj provided, schools shall not be suspended 

for more than ten days in one year, and, provided 

further, that the place of such meeting shall be 

in the county where the school is located.”

”(5) Laws and regulations executed. To see

that the school laws and the regulations of the 

state board of education are faithfully executed. . .

” (10) To fix the dates and places for conduct­

ing the examination for teachers, principal, and 

supervisors, and prescribe rules governing the 

same, and issue certificates of qualification to 

applicant entitled to same. „ .

,# (lip) To prepare and furnish suitable certifi­

cates of promotion for pupils completing the 

eighth grade of the elementary schools, and two 

year high schools, and diplomas for graduates 

of the four year high schools. . . „

” (l8) To supervise County high schools and to 

furnish blank forms in accord with the provisions



Memor a n d u m

of this statute/®

In the Code are many other sections relative to 

creation^ powers and duties of a state board of education, 

county boards of education, and county superintendents, 

qualifications of various school officials, superintendents, 

supervisors and teachers, the creation of an equalization 

fund, distribution of the fund to counties, supervision 

of school funds, duties of and restrictions upon teachers. 

Prom all of the laws contained in the Code it appears 

beyond paradventure that the program of education in 

Tennessee is a state, and not a county, function* That 

these laws are reflected on the practical side is borne 

out by the evidence* As to Clinton High School, the 

state provides three-fourths of the expense of its 

operation and maintenance. The state pays the salary 

of Superintendent Irwin* The state pays the salaries 

of the high school teachers. The state fixes the quali­

fications of the superintendent and the teachers. The 

state supervises the school, rates the school, and, 

along with other high schools, fixes its minimum curricu­

lum*

Uor is determination of policy with respect to 

races a county function* Custom and usage, as here 

complained of, have their origin in the statess consti­

tution and laws.



M e m o r a n d u m

Section 12 of Article XI of the Constitution of 

Tennessee provides in parti

f!„ » , Ho school established or aided under 

this section shall allow white and negro children 

to be received as scholars together in the same 

school/ 5

Sections of the Code provide!

"Section 1139£« Unlawful for white and 

colored persons to attend the same school. It 

shall be unlawful for any school, academy, college 

or other place of learning to allow white and 

colored persons to attend the same school, academy 

college, or other place of learning,

''Section II396, Unlawful for teacher to 

allow such mixed attendance or to teach them 

in same class. It shall be unlawful for 

any- teaeher, professor, or educator in any 

college, academy, or school of learning, to 

allow the white and colored races to attend the 

same school, or for any teacher or educator, 

or other person to Instruct or teach both the 

white and colored races in the same class, 

school, or college building, or In any other 

place or places of learning, or allow or permit 

the same to be done with their knowledge, con-



Memo r a n d u m I4.16

sent, or procurement.

"Section 11397. Violation a misdemeanor; fine 

and Imprisonment. Any person violating any of 

the provisions of this article, shall be guilty 

of a misdemeanor, and, upon conviction, shall be 

fined for each offense fifty dollars, and inprison- 

ment not less than thirty days nor more than six 

months."

The sections of the state constitution and laws 

last above quoted effectuate what is commonly known as 

segregation in schools. The purpose is separation, segre­

gation being the result. It is to be observed that the 

separation provisions are not discriminatory, but in theory 

operates upon all races alike. They are not violative 

of the equal protection provision of the Fourteenth Amend­

ment, and separation laws which do not in practice deny 

equal, protection are not unconstitutional. Missouri ex 

rel Gaines v„ Canada, 305 U.S, 337? Gong Lum v. Rice,

275 U.S. 7 8? McCabe v. Atchison, T. & S. F. Ry. Co.,

235 U.S. 151? Plessy v. Ferguson, 163 U.S. 537°

While the Fourteenth Amendment is the federal safe­

guard against denial of equal protection with respect to 

educational opportunity, it is recognized that education 

of citizens within the state is a state, and not-a 

federal function, "and any Interference on the part of



Memorandum

the Federal authority with the management of such schools 

cannot he justified except in the case of a clear and 

unmistakable disregard of rights secured by the supreme 

law of the land,” Cummings v. Richmond County Board of 

Education, 175 U.S. 528, 5^5« ”The right and power of 

the state to regulate the method of providing for the 

education of its youth at public expense is clear,” Gong 

Lum et al v. Rice et al, 275 U.S, j8, 85,

Plaintiffs declare that they are not questioning 

the constitutionality of segregation. Their insistence 

is, however:,5 that plaintiffs should be furnished facili­

ties for high school education within the town of Clinton 

equivalent to those furnished to white children there.

As such separate facilities do not now exist, counsel 

for plaintiffs insist that the negro students in Clinton 
should ”for the present” be admitted to the white high 

school. Admission ”for the present” would amount to an 
order for permanent admission, because of the circum­

stances heretofore pointed out with respect to re gro 

population. The Court is not asked to declare segre­

gation in schools unconstitutional, but it is asked to 

do indirectly what it is not asked to do directly.

As their justification for this insistence, 

plaintiffs say they and the white students of Clinton 

are similarly situated. They are similarly situated



lemorandtam

in that they are eligible for high school attendance and 

live in the same town. Bat the status of being similarly 

situated cannot be defined in terms of school standing 

and residence alone. Equality of opportunity cannot in 

practice be measured in terms of place, for opportunity 

rather than place is the heart of equal protection, Gong 

Lum et al v. Rice et al, 2?5 b,S. 70* 8I4.5 Trustees,

Pleasant Grove Independent School Dist, v. Bagsby et al,

237 S„W, 2d ?50 (Texas, December 11, 1950),

In Briggs v, Elliott, 98 F„Supp, 529, at 535 (vaca­

ted and remanded for incompleteness, 3I4.2 TJ»S„ 350), the 

court (Parker, Circuit Judge) said?

"The problem of segregation as applied to 

graduate and professional education is essen­

tially different from that involved in segre­

gation in education at the lower levels. In 

the graduate and professional schools, the 

problem is one of affording equal educational 

facilities to persons sui Juris and of mature 

personality. Because of the great expense 

of such education and the importance of the 

professional contacts established while carry­

ing on the educational process, it is difficult 

for the state to maintain segregated schools 

for Hegroes in this field which will afford them

14-18



Memorandum 1+19
opportunities for education and professional ad­

vancement equal to those afforded by the graduate 

and professional schools maintained for white 

persons. What the courts have said, and all they 

have said in the cases upon which plaintiffs rely 

is that, notwithstanding these difficulties, the 

opportunity afforded the Negro student must be 

equal to that afforded the white student and that 

the schools established for furnishing this in- 

struction to white persons must be opened to 

Negroes if this is necessary to give them the 

equal opportunity which the Constitution requires.

wThe problem of segregation at the common 

school level is a very different one. At this 

level, as good education can be afforded in Negro 

schools as in white schools and the thought of 

establishing professional contacts does not enter 

into the picture. Moreover, education at this 

level is not a matter of voluntary choice on the 

part of the student but of compulsion by the 

state. The student is taken from the control 

of the family during school hours by compulsion 

of law and placed in control of the school, where 

he must associate with his fellow students. The 

law thus provides that the school shall supple­



Memorandum

ment the work of the parent in the training of 

the child and in doing so it is entering a deli­

cate field and one fraught with tensions and 

difficulties* In formulating educational policy 

at the common school level, therefore, the law 

must take account, not merely of the matter of 

affording instruction to the student, but also 

of the wishes of the parent as to the upbringing 

of the child and his associates In the formative 

period of childhood and adolesence. If public 

education is to have the support of the people 

through their legislatures, It must not go 

contrary to what they deem for the best interests 

of their children,”

Plaintiffs here, of course, would reject any 

argument based upon the problems which have prompted 

separation provisions in state constitutions and laws. 

They recognize that separation laws exist, but hold to 

the view that they ought not to exist where they result 

In inconveniences to a segregated race, They rely 

in particular on Corbin et al v. County School Board of 

Pulaski County, Virginia, I4. Cir,, 177 F«2d and

Carter et al v. School Board of Arlington County, Virgin! 

et al, k Cir., 182 F»2d 531. In the case here, the 

complaint centers around the requirement that negro



Memorandum

students attend a negro high school located In an adjoin­

ing county* an arrangement which involves transportation 

of 19 miles each way. In the Corbin ease, where denial 

of equal protection was found* transportation to a school 

in another county was a matter complained of, and the 

court enumerated the matter of transportation as one of 

th© elements of inequality of treatment,, But it was only 

one of numerous elements, and by no means the controlling 

one. In both the Corbin and the Carter cases a comparison 
of the school facilities themselves showed a lack of 

negro facilities substantially equivalent to those of 

white students. But here th© facilities furnished the 

negro students in an adjoining county are not only sub­

stantially equal* but are substantially superior to those 

furnished, to white students, and travel is over a fine 

highway in a new bus a distance of 19 miles In a travel 

time of only I4.O minutes. According to the testimony of 

Jo Wo Barksdale, Commissioner of Education for Tennessee* 

and of Harry Carter, an executive assistant to the Com­

missioner* it is not uncommon in Tennessee for students 

of high school grad® to attend school in a county other 

than that of their residence; nor is travel by bus a 

distance of 19 miles an unreasonable travel requirement.

The Court shares their opinion. It is also the Court5s 
opinion that inconveniences complained of by plaintiffs

k zi



Memorandum

are insubstantial and that on the whole the student plain­

tiffs are enjoying educational opportunities that are not 

inferior* but are superior to those of white students who 

attend Clinton High School.

Separation of races in the public schools is a fact 

established by statute in Tennessee* as it is in about one- 

third of the other states. These states consider separa­

tion not only a wise* but also a necessary policy for the 

best interests of the races. The viewpoint represented 

by the negro plaintiffs would require a high price for 

maintenance of the separation policy. That price would 

be establishment of a negro school in proximity to every 

white school* or vice versa* that is* a duplication of 

school facilities at every level of education* if there 

are negroes or whites similarly situated. Such duplica­

tion* of course* would break the back of public education 

in Tennessee.

But the alternative suggested by this case cannot 

be accepted as the price of separation. It ignores the 

peal substance of opportunity. The Fourteenth Amendment 

is recognized by all as an esteemed landmark on the 

road to human freedom, bat courts have not construed 

and applied it with the ruthlessness of a headsman’s 

axe. In recognizing that public education is a state 

responsibility* they have recognized also that the

If 2 2



Memorandum

responsibility is not an easy one. In spite of the extra 

effort and extra expense involved,, the State of Tennessee 

through its servants, the Anderson County defendants, is 

not only trying* but is succeeding in its effort, to fur­

nish these negro students educational advantages equal 

to those furnished to white students. The riding of a 

bus by the student plaintiffs is a small contribution upon 

their part and that of their parents toward the success 

of this effort* too small to be regarded as a denial of 

constitutional rights.

The result is, that the relief soughtby plaintiffs 

must be denied and the action dismissed.

Let an order be prepared.

s/ ROBT. L. TAYLOR
Judge

JUDGMENT

(Entered May 19, 1952.)

This cause eame on to be heard on the 13th day 

of February, 1952, without the intervention of a jury, 

upon the pleadings, testimony of witnesses in open 

court, stipulations of counsel, and upon the entire 

record. From all of which, the Court, for reasons set 

forth in a memorandum opinion filed in this cause on 

April 26, 1952, is of the opinion that all relief sought 

by plaintiffs must be denied, and the action dismissed.

i+ 2 3



Judgment 1+21+

IT IS, THEREFORE, ORDERED, ADJUDGED AM) DECREED 

that the complaint filed herein, be, and the same Is 

hereby dismissed.

All costs of this cause are taxed against the 

plaintiffs, for which execution is awarded.

Approved for entry?

s/ RQBT, L» TAYLOR 
JUDGE

HOTICE OF APPEAL 

(Filed June 1 3, 1952)

Notice is hereby given that Joheather McSwain,

James Dickie, William Dickie, Lillian Willis, Shirley 

Willis, Allen McSwain, Mrs. W„ V„ MeSwain, Clifford 

Dickie, Mrs. Mary Dickie, and 0 o W. Willis, plaintiffs 

above named, hereby appeal to the Circuit Court of Appeals 

for the Sixth Circuit from the final judgment entered in 

this action on the 19th day of lay, 1952°

SIGHED?

s/ Z. ALEXAHDER LOOBY, per AUW 
Z. Alexander Looby 
1+19 Fourth Avenue, KT.
Nashville, Tennessee

a/ AVON N» WILLIAMS. JR,
Avon N. Williams, Jr.
5ll Vine Avenue 
Knoxville Ip, Tennessee

a/ CARL A. COWAN. per ANW 
Carl A. Cowan 
101-| W. Vine Avenue 
Knoxville, Tennessee



s/ THXXRG-OQD MARSHALL. per ANW 
Thurgood Marshall 
20 West Ij-Oth Street 
New York, New York

Counsel for Plaintiffs- 
Appellants.

COST BOND ON APPEAL 

(Piled June 13, 1952)

KNOW ALL MEN BY THESE PRESENTS;

That Joheather MeSwain, James Dickie, William 

Dickie, Lillian Willis, Shirley Willis, Allen MeSwain, 

Mrs. W» Y„ MeSwain, Clifford Dickie, Mrs. Mary Dickie, 

and 0. W. Willis, by their Attorney, Avon N. Williams,

Jr., Principals? and the Royal Indemnity Company, Surety? 

ape held and firmly bound unto the County Board of Educa­

tion of Anderson County, Tennessee, Prank S„ Irwin and 

D. J. Brittain, in the sum of Two Hundred Fifty(#250.GO) 

Dollars, for the payment of which we bind ourselves by 

these presents.

But the condition of this bond is such that, 

whereas on the 19th day of May, 1952, a judgment was 

entered in the above entitled proceeding? and the appel­

lants, being the above named Principals on this bond, 

feeling aggrieved thereby, appeal to the United States 

Circuit Court of Appeals for the Sixth Circuit.

Now therefore, the condition of this obligation



Gost Bond on Appeal ij.26

Is such, that, if the aforesaid judgment is affirmed or 

modified hy the Appellate Court, or if the appeal is dis- 

missed, and the appellants pay all costs which may be 

awarded against them on said appeal, this obligation will 

be void? otherwise to be and remain in full force and 

virtue.

Dated this 12th day of June, 1952-

JOHEATHER Me SWA I IT, JAMES DICKIE, 
WILLIAM DICKIE, LILLIAN WILLIS, SHIR­
LEY WILLIS, ALLEN Me SWA IN, M S. W.V. 
MeSWAIN, CLIFFORD DICKIE, MRS, MARY 
DICKIE, 0. W0 WILLIS

By their Attorney*

s/ AVON N» WILLIAMS, JR.
Attorney for Plaintiffs-Apellants

Principals

s/ ROYAL INDEMNITY C0o

Bjt 3/ CHESTER A. MASSEY, Jr.

Surety (Seal of Royal
Indemnity Co,)

(Power of Attorney of Chester A. Massey, Jr. attached.)

DESIGNATION OF CONTENTS OF 

RECORD ON APPEAL 

(Filed June 28, 19J?2)

TO THE CLERK OF THE ABOVE NAMED COURTS

It is hereby requested by the Plaintiffs^Appellants

in the above entitled cause, that the entire record,



Designation 427

proceedings and evidence herein* shall be contained in

the record on appeal of this cause to the United States

Circuit Court of Appeals for the Sixth Circuit.

s/ -Z, ALEXANDER LOOBY/ ANW 
Z. Alexander Looby 
lj.19 Fourth Avenue* 1, 
Nashville* Tennessee

s/ AVON N, WILLIAMS, JR,
Avon N, Williams* Jr.
5ll E. Vine Avenue 
Knoxville 15* Tennessee

s/ CARL A. COWAN/ ANW 
Carl A, Cowan 
101-g- W. Vine Avenue 
Knoxville, Tennessee

s/ THURGOOD MARSHALL/ ANW 
Thurgood Marshall 
20 West lj.0th Street 
New York* New York

Counsel for Plaintiffs- 
Appellants.

ORDER

(Entered July 21* 1952)

Upon motion of the plaintiff* the time for the 

filing of the record on appeal and the docketing of 

the case in the United States Court of Appeals for 

the Sixth Circuit is extended to ninety days from and 

after June 1 3, 1952.

Approved for entry*

s/ ROBT. Lo TAYLOR 
District Judge.



ORDER

(Entered August 20, 1952)

In this cause it Is hereby ordered that the clerk 

transmit to the Court of Appeals all exhibits in their 

original form*

Approved for entry.

s/ ROBT. L. TAYLOR 
Judge

CERTIFICATE OF THE CLERK

The United States of America :
Eastern District of Tennessee % ss;
Northern Division t

If Carroll Cate, Clerk of the District Court of 

the United States, within and for the District afore­

said, do hereby certify that the foregoing printing and 

typewriting is a true, full, correct and complete copy 

of the original Transcript of Record on Appeal on file 

and remaining of record in my office in the matter of 

Joheather MeSwain, an Infant, by Allen IcSwain, his 

father and next friend; James Dickie, an infant, by 

Clifford Dickie, his father and next friend; William 

Dickie, an infant, by Clifford Dickie, his father and 

next friend; Lillian Willis, an infant, by 0„ W„ Willis, 

her father and next friend; Shirley Willis, an infant.



Certificate of the Clerk 1̂ 29

by 0, W. Willis, her father and next friend, and Allen 

MoSwa^n, Mrs* W. V„ McSwain, Clifford Dickie, Mrs, Mary 

Dickie, 0* W 8 Willis, plaintiffs vs0 County Board of Educa­

tion of Andersen County, Tennessee, consisting of J. M* 

Burkhart, C„ L. Brown, Dr» J» M* Cox, Jack Duncan, 0. G» 

Mayes, Thomas A. Sharp, and J. ffi. Sisson, as board mem­

bers, who together, as such, constitute the County Board 

of Education of Anderson County, Tennessee! Prank E„

Irwin, Superintendent of Schools of Anderson County, 

Tennessee! and D„ J* Brittain, Principal of Clinton High 

School, Clinton, Tennessee, defendants, and being Case 

Ho» 1^55 on the Civil Docket of this Court.

In Testimony Whereof, I have hereunto set my hand 

and seal of the said District Court, at Knoxville,

CARROLL CATE,

Clerk,

BYg r
Deputy Clerko