Mattern v. Eastman Kodak Company Petitioners' Reply to Respondent's Brief in Opposition

    -f- i l t  c a / ’ v

In t h e

Htttfrii Btn&B GImtrt nf Appeals
F ob the Sixth  Circuit 

No. 14,607

H enry C. M axwell, Jr., et al.,

Plaintiffs-Appellants,

—-vs.—

County B oard oe E ducation or 
D avidson County, T e n n ., et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

____________________________ _______________ ___

APPENDIX TO APPELLANTS’ BRIEF

Z. A lexander L ooby 
A von N. W illiams, Jr.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall 
Jack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
Suite 1790 
New York 19, N. Y.

Attorneys for Plaintiffs-Appellants

'Of Counsel:
N orman C. A maker



I N D E X
PAGE

Complaint ..............................   7a

Motion for Temporary Restraining O rder................. 26a

Motion for Preliminary Injunction ............................. 27a

Order to Show Cause ....................................................  28a

Motion to Dismiss .................................   29a

Affidavit of J. E. Moss ..................................................  31a

Exhibit “ A ” to Affidavit ......................................  36a

Exhibit “ B ” to Affidavit ........................................  37a

Affidavit of Frank White ............................................  38a

Affidavit of Melvin B. Turner......................................  40a

Motion to Strike Certain Portions of the Complaint.. 42a

Answer .............................. ...... -....................................... 43a

Excerpts from Transcript of Hearing, September 26,
1960 ...............................................................................  52a

J. E. Moss ................................................................ 52a

Melvin B. Turner....................................................  54a

J. E. Moss ................................................................ 55a

Order, October 7, 1960 ..................................................  61a

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



11

PAGE

Report of the County Board of Education.................  64a

Exhibit “ A ” to Report .........    65a

Plan ............................................................................ 69a

Specification of Objections to Plan ........................... 72a

Excerpts from Transcript of Hearing, October 24,
1960 ...............................................................................  77a

J. E. Moss ................................................................  77a

Dr. Eugene W einstein............................................  94a

Annie P. D river........................................................  108a

Henry C. Maxwell ..................................................  110a

Findings of Fact, Conclusions of Law and Judgment 
November 23, 1960 ......................................................  114a

Judgment .................................................................. 131a

Order, November 29, 1960 ..............................................  134a

Motion for New Trial and for Appropriate Relief .. 136a

Motion of Plaintiffs for Further Relief ................... 139a

Exhibit “A ” to Plaintiffs’ Motion ....................... 142a

Supplemental Answer ..................................................... 146a

Excerpts from Transcript of Hearing, January 10,
1961 ..............................................    149a

Joseph R. Garrett ......    149a

Findings of Fact, Conclusions of Law and Judgment 171a 

Judgment .................................................................. 175a

Notice of Appeal ............................................................ 177a



A P P E N D I X

Relevant Docket Entries*

Civil Docket 2956

H e n r y  C. M a x w e l l , Jr., et al. 

—vs.—

C o u n t y  B o ard  o f  E d u c a t io n  o f  
D a v id s o n  C o u n t y , T e n n ., et al.,

9-19-60 Complaint filed.

9-19-60 Motion for Temporary Restraining Order-filed 
by the Plaintiffs.

9-19-60 Motion for Preliminary Injunction—filed by the 
Plaintiffs.

9-19-60 Order to Show Cause Why Temporary Restrain­
ing Order and/or Preliminary Injunction Should 
Not Issue—entered by Judge William E. Miller. 
It is Ordered that the Defendants named herein 
shall appear at 9 :00 A.M. on September 26, 1960 
before Judge William E. Miller in U. S. District 
Courtroom to show cause, etc. * * *

9-26-60 Motion to Dismiss filed by defendants. * * #

9-26-60 Affidavit of J. E. Moss filed by defendants in sup­
port of Motion to Dismiss.

9-26-60 Affidavit of Frank White filed by defendants in 
support of Motion to Dismiss.

Entries not relevant to this appeal have not been printed.



2a

9-26-60 Affidavit of Melvin B. Turner filed by defendants 
in support of Motion to Dismiss.

9-26-60 Motion to Strike certain Portions of the Com­
plaint filed by defendants. * * *

9- 26-60 Answer of defendants filed. * * *

10- 7-60 Order relative to hearing had on September 26, 
1960, (1) Motions of plaintiffs for temporary re­
straining order and/or preliminary injunction be 
and the same is withheld at this time (2) defen­
dants directed to file with the court, not later 
than Oct. 19, 1960 a complete and substantial 
plan which will accomplish complete desegrega­
tion of public school system of Davidson County, 
Tennessee (3) the plaintiffs will be furnished by 
defendants with a copy of said plan and may file 
objections thereto not later than October 21, 
1960, the plaintiffs except to the action of the 
Court in withholding action on their motions for 
temporary restraining order and preliminary in­
junction.

10- 19-60 Beport of the County Board of Education of
Davidson County, Tennessee, with Exhibit “A ”— 
Beport of the Special Committee of the Davidson 
County Board of Education,—attached, filed by 
the Defendants. * * *

10- 21-60 Specification of Objections to Plan filed by
County Board of Education of Davidson County, 
Tennessee, * * * , filed by the plaintiffs.

11- 9-60 Transcript of the Court’s Statement from the
Bench and of Proceedings Thereafter on Motion 
of Defendants to Strike,—filed.

Relevant Docket Entries



3a

11-23-60 F indings of F act, Conclusions of L aw  and 
J udgment— entered by Judge William E. Miller. 
It is accordingly Ordered, Adjudged and De­
creed as follows:

(1) That the plan submitted by the County Board 
of Education of Davidson County, Tennessee is 
approved, except in the following particulars:

(a) Compulsory segregation based on race 
is abolished in grades One through Four of 
the Davidson County Schools for the Second 
Semester of the 1960-61 school year begin­
ning January 1961, and thereafter for one 
additional grade beginning with each subse­
quent school year, i.e., for Grade Five in 
September 1961, Grade Six in September 
1962, etc.

(b) As respects the summer classes attended 
by outstanding students, there will be no 
segregation based on races, and notice of 
such will be immediately given by the School 
Board to all teachers in the Davidson County 
School system, both Negro and white, of the 
availability of these classes.

(c) The Davidson County School Board will, 
prior to the beginning of the Second Semes­
ter of the 1960-1961 school year, and prior 
to the beginning of each school year there­
after, give specific notice to the parents of 
all school children of the zone in which their 
children fall for the purpose of attending 
classes.

Relevant Docket Entries



4a

(2) The prayer of the plaintiffs for injunctive re­
lief be, and the same is hereby denied, except 
with regard to those matters as to which judg­
ment is hereinafter reserved.

(3) Jurisdiction of this case is retained by the 
Court throughout the period of transition.

(4) Judgment is reserved on the question of the 
motion to strike and those portions of the mo­
tion to dismiss not hereinbefore overruled, and 
on the matters raised in the complaint which are 
involved in said motions.

To the foregoing action of the Court in approving 
the plan submitted by defendants and in denying 
plaintiffs’ prayer for injunctive relief, the plain­
tiffs except. * * *

11- 29-60 Order entered by Judge William E. Miller,
Ordering that the Defendants’ Motions to Strike 
and to Dismiss those portions of the Complaint 
relating to teacher and personnel assignment be 
and they are hereby overruled, and that the de­
fendants be and they are hereby allowed twenty 
days from date in which to further plead to the 
Complaint. The Court reserves judgment as to 
the substantive questions involved, including the 
questions of granting injunctive relief, pending 
a further hearing after the issues have been fully 
joined between the parties. * # *

12- 2-60 Motion for New Trial and for Appropriate Re­
lief filed by the Plaintiffs.

12-12-60 Motion of plaintiffs for further relief filed. * * *

Relevant Docket Entries



5a

12-13-60 Supplemental Answer, pursuant to the Court 
Order entered November 29, 1960,—filed by the 
Defendants. * * *

1-18-61 Transcript of the Court’s Statement from the 
Bench, on January 10, 1961 at Nashville, Tennes­
see—filed by the 0. C. R. * * *

1-24-61 Findings of Fact, Conclusions of Law and Judg­
ment entered. * * # Ordered that: (1) Relief 
prayed for in the motion for further relief filed 
by plaintiffs be and the same is denied, with the 
exception that the form of the notices to parents 
in the future are directed to be mailed by defen­
dants to counsel for plaintiffs in advance of mail­
ing, so as to give them sufficient time to file with 
the Court objections to the form of said notices.

(2) The aforesaid notices to parents will be given 
to those who are affected by said plan of 
desegregation heretofore approved by the 
Court and not to anyone else.

(3) The Motion for a New Trial and for appro­
priate relief filed by .Plaintiffs is overruled 
and denied.

(4) Injunctive relief with respect to the issues 
heretofore reserved by the Court concerning 
assignment of teachers, principals and sus­
taining personnel in the schools on basis of 
race is denied at this time; and the Court 
further reserves ruling with respect to the 
assignment of teachers, etc., including the 
right of school children or their parents to 
raise such question.

Relevant Docket Entries



6a

(5) This case will remain on the docket of the 
Court and the Court will retain jurisdiction 
during the period of transition, etc.

(6) The Motion to intervene filed in this cause by 
Porter Freeman is overruled and denied.

To the foregoing action of the Court in denying 
their motion for further relief and their motion 
for new trial and for appropriate relief, and in 
denying the relief prayed for in the complaint 
with respect to said issues heretofore reserved by 
the Court, the plaintiffs respectfully except.

2-20-61 Notice of Appeal filed by the Plaintiffs. * * *

2- 20-61 Appeal Cost Bond filed by the Plaintiffs. * * *

3- 28-61 Order extending time to file record on appeal
to and including May 21, 1961, entered.

5-25-61 Order received for entry from the U. S. Court 
of Appeals for the Sixth Circuit extending time 
to file record on appeal to and including May 31, 
1961.

5-30-61 Transcript of Proceedings, filed (four Volumes)

Relevant Docket Entries



7a

Filed: September 19, 1960 

I n  the

DISTRICT COURT OF THE UNITED STATES

F or the M iddle D istrict oe T ennessee 

N ashville D ivision 

Civil Action No. 2956

C om p lain t

-,--------
H enry C. M axwell, Jr., and B enjam in  Grower M axwell, 

infants, by Rev. Henry C. Maxwell, Sr., and Mrs. Flora 
Maxwell, their father and mother and next friends,

Cleophtjs D river, Christopher C. D river and D eborah D. 
D river, infants, by Mrs. Annie P. Driver, their mother 
and next friend,

D eborah R uth  Clark, an infant, by Joe E. Clark and Mrs. 
Floy Clark, her father and mother and next friends,

Jacqueline D avis, Shirley D avis, George D avis, Jr., R ob­
ert Davis and R ita Davis, infants, by George Davis, Sr., 
and Mrs. Robbie Davis, their father and mother and 
next friends,

R obert R ickey T aylor, an infant, by Robert Taylor and 
Mrs. Stella Taylor, his father and mother and next 
friends,

and

R ev. H enry C. M axwell, Sr., M rs. F lora M axwell, M rs. 
A nnie  P. D river, Joe E. Clark, M rs. F loy Clark, 
George D avis, Sr., M rs. R obbie D avis, R obert T aylor, 
M rs. Stella T aylor,

Plaintiffs,



8a

versus

County B oard of E ducation of D avidson County, T en ­
nessee, and F rank W hite, S. L. W right, Jr., E. K. 
H ardison, Jr., F erriss C. B ailey, E. D. Chappell, A u­
brey M axwell and Olin  W hite , Board Members, who 
together, as such Board Members, constitute the County 
Board of Education of Davidson County, Tennessee; 
and

J. E. Moss, County School Superintendent and/or Super­
intendent of Public Instruction of Davidson County, 
Tennessee,

Defendants.

Complaint

1. (a) The jurisdiction of this Court is invoked under 
Title 28, United States Code, Section 1331. This action 
arises under Section 1 and also the Due Process Clause 
of the Fourteenth Amendment of the Constitution of the 
United States; and under the Act of May 31, 1870, Chapter 
14, Section 16, 16 Stat. 144, (Title 42, United States Code, 
Section 1981), as hereinafter more fully appears.

The matter in controversy exceeds, exclusive of interest 
and costs, the sum or value of Ten Thousand ($10,000.00) 
Dollars.

(b) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, Section 1343. This action is 
authorized by the Act of April 20, 1871, Chapter 22, Sec­
tion 1, 17 Stat. 13, (Title 42, United States Code, Section 
1983) to be commenced by any citizen of the United States 
or other person within the jurisdiction thereof to redress 
the deprivation, under color of a state law, statute, ordi­
nance, regulation, custom or usage, of rights, privileges



9a

and immunities secured by Section 1, of the Fourteenth 
Amendment, or any other provision of the Constitution 
of the United States, and by the Act of May 13, 1870, Chap­
ter 14, Section 16, 16 Stat. 144, (Title 42, United States 
Code, Section 1981), providing for the equal rights of citi­
zens and of all persons within the jurisdiction of the 
United States, as hereinafter more fully appears.

2. This action is a proceeding under Title 28, United 
States Code, Sections 2201 and 2202, for a judgment de­
claring the rights and other legal relations of plaintiffs 
and all other persons, similarly situated, eligible to attend 
elementary and secondary schools owned, maintained and 
operated by the County Board of Education of Davidson 
County, Tennessee, in and for said County and State, and 
demanding an injunction, for the purpose of determining 
and redressing questions and matters of actual contro­
versy between the parties, to-wit:

(a) Whether the custom, policy, practice or usage of 
defendants in excluding plaintiffs and other persons simi­
larly situated, from elementary and secondary schools 
owned, maintained and operated by the County Board of 
Education of Davidson County, Tennessee, solely because 
of their race or color, and in operating a compulsory racially 
segregated school system in and for said County and State, 
pursuant to Sections 49-3701, 49-3702, and 49-3703, Ten­
nessee Code Annotated, 1955, and that portion of Section 
12 of Article 11 of the Tennessee Constitution which makes 
it unlawful for white and colored persons to attend the 
same school, and pursuant to any other law, custom, policy, 
practice, or usage, violates the Equal Protection and Due 
Process Clauses of the Fourteenth Amendment to the Con­
stitution of the United States.

Complaint



10a

3. Plaintiffs bring this action pursuant to Rule 23, (a) 
(3) of the Federal Rules of Civil Procedure as a class action 
for themselves and on behalf of all other persons similarly 
situated, who are so numerous as to make it impracticable 
to bring them all before the Court and who seek a common 
relief based upon common questions of law and fact.

4. Plaintiffs are Negroes and are citizens of the United 
States and of the County of Davidson and State of Ten­
nessee. All adult plaintiffs are parents and/or guardians 
of the infant plaintiffs, and reside with the infant plain­
tiffs, in Davidson County, Tennessee. All of the infant 
plaintiffs are school children, eligible to attend the public 
schools of Davidson County, and have been attending said 
schools, and can satisfy all requirements for admission to 
the public schools maintained and operated by the defen­
dant, County Board of Education, in and for Davidson 
County, Tennessee, including the schools to which they 
respectively applied as hereinafter shown.

5. (a) The defendant, County Board of Education of 
Davidson County, Tennessee, is composed of the following 
Board Members, the defendants, Frank White, S. L. 
Wright, Jr., E. K. Hardison, Jr., Ferriss C. Bailey, E. D. 
Chappell, Aubrey Maxwell, and Olin White, who, together, 
constitute the County Board of Education of Davidson 
County, Tennessee, and who are hereinafter referred to as 
defendant, County Board of Education.

(b) Said defendant, County Board of Education, exists 
pursuant to the Constitution and laws of the State of Ten­
nessee as an administrative department or agency of the 
State of Tennessee, discharging governmental functions, 
and is by law, a body corporate or a continuous body or

Complaint



11a

entity, and is being sued herein as such corporate or con­
tinuous body or entity.

(c) All of said defendants, above named as Board Mem­
bers of defendant County Board of Education, are citizens 
and residents of the State of Tennessee, and are being sued 
herein in their official capacities as such Board Members, 
and are also being sued herein as individuals.

(d) Defendant, J. E. Moss, is County School Superin­
tendent or Superintendent of Public Instruction of David­
son County, Tennessee and holds office pursuant to the 
Constitution and laws of the State of Tennessee as an 
administrative officer of the free public school system of 
Tennessee. He is a citizen and resident of the State of 
Tennessee, and is made defendant herein and sued in his 
official capacity as stated hereinabove, and is also being 
sued herein as an individual.

6. The State of Tennessee has declared public education 
a State function. The Constitution of Tennessee, Article 
11, Section 12, provides:

“ Knowledge, learning, and virtue, being essential to the 
preservation of republican institutions, and the dif­
fusion of the opportunities and advantages of educa­
tion throughout the different portions of the State, 
being highly conducive to the promotion of this end, 
it shall be the duty of the General Assembly, in all 
future periods of this Government, to cherish liter­
ature and science.”

Pursuant to this mandate the Legislature of Tennessee 
has established a uniform system of free public education 
in the State of Tennessee according to a plan set out in the

Complaint



12a

Tennessee Code Annotated, 1955, Sections 49-101 through 
49-3806, and supplements and amendments thereto. The 
establishment, maintenance and administration of the pub­
lic school system of Tennessee is vested in a Commissioner 
of Education, a State Board of Education, County Super­
intendents of Public Schools, and County and City Boards 
of Education.

7. The public schools of Davidson County, Tennessee 
are under control and supervision of defendant, County 
Board of Education and defendant, J. E. Moss, acting as 
an administrative department, division or agency, and as 
an agent of the State of Tennessee. Said County Board of 
Education is charged and vested with the administration, 
management, government, supervision, control and conduct 
of public schools within said County, and is vested with 
all powers and duties pertaining to, connected with, or in 
any manner incident to the proper conduct and control of 
the public schools of said County. Said County Board of 
Education is under a duty to enforce the school laws of the 
State of Tennessee; to maintain an efficient system of public 
schools in Davidson County, Tennessee; to determine the 
studies to be pursued, the methods of teaching, and to 
establish such schools as may be necessary to the complete­
ness and efficiency of the school system. Defendant, J. E. 
Moss, as Superintendent, has the immediate control of the 
operation of the public schools of said County and is the 
administrative agent for the defendant, Board of Educa­
tion, and serves as a member of its executive committee.

8. Plaintiffs allege that the defendants herein, acting 
under color of the laws of the State of Tennessee and 
County of Davidson, have pursued and are presently pursu­
ing a policy, custom, practice and usage of operating a com-

Complaint



13a

pulsory racially segregated school system in and for the 
County of Davidson, State of Tennessee. The racially segre­
gated school system operated by defendants consists of 
a primary system of elementary, junior high, and high 
schools limited to attendance by white children of the 
County of Davidson. Said schools are staffed by white 
teachers, white principals and white sustaining personnel. 
Said white schools are located in various parts of the 
County and, regardless of location, these schools may be 
attended by white children only. The defendants also main­
tain a secondary system of “ colored schools” or “Negro 
schools” limited to attendance by Negro children. These 
schools are likewise located in various parts of the County 
and, regardless of location, are limited to attendance by 
Negro children. These schools are staffed entirely by Negro 
personnel; the teachers are all Negroes; the principals are 
all Negroes; and the sustaining personnel are all Negroes. 
This compulsory racially segregated school system is based 
solely upon race and color; attendance at the various 
schools is determined solely upon race and color and the 
assignment of personnel is determined solely upon the 
race and color of the children attending the particular 
school and the race and color of the personnel to be as­
signed. A dual set of school zone lines is also maintained. 
These lines are based solely upon race and color. One set 
of lines relates to the attendance areas for the Negro 
schools and one set to the attendance areas for the white 
schools. These lines overlap where Negro and white school 
children reside in the same residential area. For many 
years the defendants have adopted, maintained and en­
forced, and they still maintain and enforce this custom, 
policy, practice or usage of compulsory racial segregation 
in the schools of Davidson County, Tennessee pursuant to

Complaint



14a,

which they have required and are still requiring all Negro 
children, including the infant plaintiffs, to attend said 
schools designated exclusively for Negro children.

9. From time to time since 1954 or 1955, Negro citizens 
and residents of Davidson County have requested defen­
dants to cease operating a compulsory racially segregated 
public school system in Davidson County, Tennessee, and 
to comply with the decision of the United States Supreme 
Court in the School Segregation Cases. Defendants have 
continued, however, to pursue the policy, practice, custom 
and usage of operating a compulsory racially segregated 
school system in Davidson County, Tennessee, and have 
failed and have refused to formulate or adopt any plan 
for desegregating the public school system of Davidson 
County.

10. At the beginning of the school term, that is, to-wit; 
on 2 September, 1960, the infant plaintiffs, Henry C. Max­
well, Jr., and Benjamin Grover Maxwell, presented them­
selves with their parents, and made proper and timely 
applications for admission to G-lencliff Junior High School 
and/or Antioch High School, but they were denied admis­
sion by defendants to said said schools, solely on account 
of plaintiffs’ race or color. On the same date, the infant 
plaintiffs, Cleophus Driver, Christopher C. Driver, and 
Deborah D. Driver, presented themselves, together with 
their mother, and made proper and timely application for 
admission to the Bordeaux Elementary School. In addi­
tion, the plaintiff, Joe E. Clark, father of Deborah Ruth 
Clark, also presented himself at that time and made proper 
and timely application for admission of his daughter, the 
infant plaintiff, Deborah Ruth Clark, to the Bordeaux E le-

Complaint



15a

mentary School. All of said plaintiffs were refused and 
denied admission by defendants to the said Bordeaux Ele­
mentary School, solely on account of plaintiffs’ race or 
color. All of said infant plaintiffs reside in the zones of 
the respective schools to which they applied, and would 
have been admitted had they been white children. The 
plaintiffs, Reverend & Mrs. Henry C. Maxwell, Sr. were 
accompanied by the plaintiff, Mrs. Robbie Davis, whose 
five minor children, the infant plaintiffs, Jacqueline Davis, 
Shirley Davis, George Davis, Jr., Robert Davis, and Rita 
Davis, are presently residing closer to a school designated 
by the defendants as a “ Negro” school. However, Mrs. 
Davis accompanied Reverend & Mrs. Maxwell, and she and 
her husband, George Davis, Sr., and their minor children, 
as well as the plaintiffs, Robert Taylor and wife, Stella 
Taylor and their minor child, Robert Rickey Taylor, who 
also is in the zone of and attends a “Negro” school, join 
in this action for the reason that their said children are 
being denied their right to enjoy a non-discriminatory 
public education by reason of the compulsory racially 
segregated public school system wdiich the defendants are 
maintaining and operating in and for Davidson County, 
Tennessee, as more fully shown hereinafter.

(a) Defendants’ requirement of compulsory racial segre­
gation imposes unreasonable burdens upon the infant 
plaintiffs and other Negro children similarly situated, who 
live near and in the zone of readily accessible schools 
Avhich white children living in the same area are permitted 
to attend, but plaintiffs and all other Negro children are 
refused admission to these schools and required to travel 
great distances to “ Negro” schools, solely because of their 
race or color. For instance, the infant plaintiffs, Henry 
C. Maxwell, Jr., and Benjamin Grover Maxwell, who are

Complaint



16a

just entering Junior High School this year, reside within 
a radius of two or three miles of Glencliff Junior High 
School and Antioch High School, to either of which they 
would be admitted if they were white, but because they 
are Negroes, they and other Negro children similarly situ­
ated, must walk a half mile or more each morning to a 
school bus pick-up point, where they are picked up and 
transported twelve miles all the way across town to a 
“ Negro” school, and must make the return trip each eve­
ning, arriving home at dusk. Similarly, the Driver and 
Clark children named hereinabove as infant plaintiffs, and 
all other Negro children, similarly situated, who reside in 
their neighborhood, are within walking distances of the 
Cumberland Junior High School and the Bordeaux Ele­
mentary School, which latter school was destroyed by fire 
on 9 September 1960, as hereinafter shown; but these chil­
dren and all other Negro children similarly situated, are 
required to travel by bus a distance of five or six miles or 
more to Haynes School, designated by defendants as a 
“ Negro” school. This unnecessary burden imposed upon 
the infant plaintiffs, and other Negro children similarly 
situated, solely because of race or color, subjects said chil­
dren to unwarranted physical and health hazards, depriv­
ing them in many instances of opportunities for athletic 
and cultural development, and reduces their opportunities 
for educational instruction and study. In addition, it places 
an unwarranted burden upon the parents of the infant 
plaintiffs and other Negro children, requiring them to arise 
in the early hours of the morning in order to get them off 
to school and depriving said parents, in many instances, 
of their companionship and services in the afternoon, by 
reason of the fact that many of them, particularly those 
residing in the area of the Maxwell children, do not reach

Complaint



17a

home until late in the evening. Defendants refuse to admit 
the infant plaintiffs to the schools as aforesaid, solely on 
account of their race or color, the defendant, J. E. Moss, 
having stated explicitly to one or more of the adult plain­
tiffs that they were denied admission for this reason, and 
that the Board of Education is committed to a policy of 
compulsory segregation. As a matter of fact, the defen­
dant, Board of Education, has officially stated its policy 
of compulsory racial segregation by a motion passed and 
entered upon the minutes of the Board at a meeting held 
on 8 September, 1960, which reads substantially as fol­
lows :

“We have fully considered the request of certain 
Negro citizens who are parents of children in the 
Davidson County School System to admit 4 children 
as students in the Bordeaux Elementary School and 2 
students to be admitted to Gleneliff High School.

Heretofore, numerous substantial Negro citizens of 
this county have expressed their desire that their chil­
dren attend Negro schools; and they also expressed 
their pride in their own schools and confidence in their 
teachers.

The Negro schools in Davidson County are in excel­
lent condition and most of the schools have been built 
within the last 10 years and the Negro schools are 
equal in every respect to the white schools.

The request has been made by the parents of six 
children from three Negro families. This request was 
made after the current school year had started and 
after all plans for transportation, zoning of students, 
distribution of school books, etc., had been fully com­
pleted for the county-wide system.

Complaint



18a

It is therefore moved that the Davidson County 
Board of Education decline the request so made and 
in making this motion, it is our feeling that we are act­
ing in the best interest of the six Negro children men­
tioned above.”

Plaintiffs aver that the class work in the Davidson 
County School System, contrary to the foregoing statement 
of the defendants, began on Tuesday, September 6, 1960, 
some four days after the plaintiffs had presented them­
selves and made application to the defendants for admis­
sion to the schools requested, and were denied. Plaintiffs 
further aver that some of the adult plaintiffs appeared at 
the office of the defendant, J. E. Moss, on 31 August, 1960, 
approximately two days prior to registration on 2 Sep­
tember 1960, and sought an interview with the defendants, 
at which time, one of the adult plaintiffs stated explicitly 
that they were there requesting integration of the David­
son County School System. Plaintiffs were informed by 
said office that they would be given an appointment with the 
defendant, J. E. Moss, for that purpose on Thursday, 1 
September 1960. However, on the last mentioned date, 
they were further informed by said defendant’s office, that 
he would not see them until Tuesday, 6 September, 1960. 
Plaintiffs thereupon presented themselves to the respec­
tive schools for admission on registration day, 2 September, 
1960, as aforesaid.

On the morning of 9 September, 1960, following said 
action by the Board on 8 September, 1960, the Bordeaux 
Elementary School was destroyed by fire. Although defen­
dants have not made any public announcement as to the 
disposition of the exclusively white school population of 
said school, it is apparent from the defendants’ foregoing

Complaint



19a

policy, that they will continue to operate a compulsory 
racially segregated school system and that new re-assign­
ment of the students in said school will be made on this 
basis.

(b) Plaintiffs aver that while some of them sought and 
seek admission of their children to the respective schools 
to which they applied as aforesaid, same being within their 
zones, all of the plaintiffs further insist that the operation 
of a compulsory racially segregated school system in David­
son County violates rights of the plaintiffs and members of 
their class which are secured to them by the due process and 
equal protection clauses of the Fourteenth Amendment to 
the Federal Constitution. The compulsory racially segre­
gated school system is predicated on the theory that 
Negroes are inherently inferior to white persons and, con­
sequently, may not attend the same public schools attended 
by white children who are superior. The plaintiffs, and 
members of their class, are injured by the policy of assign­
ing teachers, principals and other school personnel on the 
basis of the race and color of the children attending a 
particular school and the race and color of the person to be 
assigned. Assignment of school personnel on the basis of 
race and color is also predicated on the theory that Negro 
teachers, Negro principals and other Negro school person­
nel are inferior to white teachers, principals and other 
white school personnel and, therefore, may not teach white 
children. Thus all of the plaintiffs are affected and injured 
by defendants’ aforesaid policy, practice, custom, or usage, 
whether they are thereby excluded from a white school 
nearer their homes, or whether, on the other hand, they 
are required to attend a school nearer their homes but 
which is designated and stigmatized as a “ Negro” school,

Complaint



20a

from which all children of other racial extractions are 
excluded.

11. The defendants rely on the following provisions of 
the Tennessee Constitution and Statutes, which read as 
follows:

Constitution of 1870, Act 11, Sec. 12:

“ . . .  No school established or aided under this section 
shall allow white and negro children to be received as 
scholars together in the same school.. . . ”

Tennesse Code, 1955, Sections:

“ 49-3701. Interracial Schools prohibited.—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. (Acts 1901, ch. 7, sec. 1; shan., sec. 
6888a 37; Code 1932, sec. 11395).

“ 49-3702. Teaching of mixed classes prohibited,—It 
shall be unlawful for any teacher, professor, or educa­
tor 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 per­
son to instruct or teach both 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, consent, or 
procurement, (Acts 1901 ch. 7, sec 2; shan., sec 6888a 
38; Code 1932, sec 11396.)

“49-3703. Penalty for violations.—Any person violat­
ing any of the provisions of this chapter, shall be 
guilty of a misdemeanor, and, upon conviction, shall

Complaint



21a

be fined for each offense fifty dollars ($50.00), and im­
prisonment not less than thirty (30) days nor more 
than six (6) months. (Acts 1901, ch. 7, sec 3; shan., 
sec 6888a39; mod. Code 1932, sec 11397.)”

12. The infant plaintiffs and all other persons similarly 
situated, in Davidson County, Tennessee, are thereby de­
prived of their rights guaranteed by the Constitution and 
laws of the United States.

Plaintiffs aver that the said constitutional and statutory 
provisions and all other laws, customs, policies, practices 
and usages of the State of Tennessee requiring or per­
mitting segregation of the races in public education, fall 
within the prohibited group which the Supreme Court of 
the United States holds must yield to the Fourteenth 
Amendment of the Constitution of the United States, and 
are of no force and effect.

Plaintiffs therefore aver that the said custom, policy, 
practice or usage of defendants in excluding plaintiffs and 
other persons, similarly situated, from elementary and 
secondary schools, owned, maintained and operated by the 
County Board of Education of Davidson County, Ten­
nessee, solely because of their race or color, and in operat­
ing a compulsory racially segregated public school system 
in and for said County, pursuant to said constitutional and 
statutory provisions and any other law, custom, policy, 
practice or usage of the State of Tennessee requiring or 
permitting segregation of the Negro and white races in 
public education, deprives plaintiffs and all others simi­
larly situated of the equal protection of the laws in viola­
tion of the Fourteenth Amendment to the Constitution of 
the United States, and is therefore unconstitutional and 
void and affords defendants no legal excuse to deprive 
plaintiffs of their rights herein prayed.

Complaint



22a

13. Plaintiffs and those similarly situated and affected, 
on whose behalf this suit is brought, are suffering irrep­
arable injury and are threatened with irreparable injury 
in the future by reason of the acts herein complained of. 
They have no plain, adequate or complete remedy to re­
dress the wrongs and illegal acts herein complained of, 
other than this suit for a declaration of rights and an in­
junction. Any other remedy to which plaintiffs and those 
similarly situated, could be remitted would be attended 
by such uncertainties and delays as to deny substantial 
relief, would involve multiplicity of suits, cause further 
irreparable injury and occasion damage, vexation and in­
convenience, not only to the plaintiffs and those similarly 
situated, but to defendants as governmental agencies.

Plaintiffs aver that as of the date of this complaint, the 
classes in the public schools of Davidson County have been 
in session only three days and that there is no reason why, 
in view of the foregoing circumstances, their children should 
not be immediately admitted to the said schools on a non- 
discriminatory basis this school term. They further aver 
that they will suffer irreparable injury in the future, un­
less defendants are restrained by the temporary restrain­
ing order and injunction of this Court for the reasons set 
out hereinabove, and also, for the reason that, as aforesaid, 
the defendants have explicitly indicated that they intend 
to continue their compulsory segregation policy; and if the 
plaintiffs and other Negro children similarly situated, are 
not granted immediate relief now, they will be subjected 
to the inherent evil and inequality of compulsory racial 
segregation in the public schools for an indefinite period 
of time, and immediate and lasting harm and damage will 
result not only to them, but also to white children who 
are thereby being indoctrinated daily with concepts of 
themselves as a master or superior race while infant plain-

Complaint



23a

tiffs will be subjected daily to the said indoctrination clas­
sifying them as an inferior race.

14. There is between the parties an actual controversy 
as hereinbefore set forth.

W herefore, Plaintiffs respectfully pray:

The Court issue forthwith a temporary restraining order 
against the defendants, immediately restraining and en­
joining them and each of them, their agents, employees, 
servants or attorneys, from refusing to admit the infant 
plaintiffs to the said Glencliff Junior High School, Antioch 
High School, and Bordeaux Elementary School, according 
to their respective applications as set out hereinabove, 
or any other public school operated by defendants in and 
for Davidson County, Tennessee, on account of plaintiffs’ 
race or color, pending further orders of the Court.

The Court issue a preliminary injunction, restraining and 
enjoining defendants and each of them, their agents, em­
ployees, servants or attorneys, from refusing to admit 
plaintiffs, and other persons similarly situated, to Glen­
cliff Junior High School, Antioch High School, and Bor­
deaux Elementary School, according to their respective 
applications as set out hereinabove, or any other public 
schools maintained and operated by defendant County 
Board of Education in and for Davidson County, Ten­
nessee, because of their race or color, pending further or­
ders of the Court.

The Court adjudge, decree and declare the rights and 
legal relations of the parties to the subject matter here 
in controversy in order that such declaration shall have 
the force and effect of a final judgment or decree.

The Court enter a judgment or decree declaring that the 
custom, policy, practice or usage of defendants in main-

Complaint



24a

taining and operating a compulsory racially segregated 
public school system in Davidson County, Tennessee, and 
in excluding plaintiffs and other persons, similarly situ­
ated, from Gleneliff Junior High School, Antioch High 
School, and Bordeaux Elementary School, according to 
their respective applications as set out hereinabove, or any 
other public schools maintained and operated by defen­
dant County Board of Education in and for Davidson 
County, Tennessee, solely because of race, pursuant to the 
above quoted portion of Article 11, Section 12 of the Con­
stitution of Tennessee, Sections 49-3701, 49-3702, and 
49-3703 of the Tennessee Code, 1955, and any other law, 
custom, policy, practice and usage, violates the Fourteenth 
Amendment of the United States Constitution, and is there­
fore unconstitutional and void.

The Court issue a permanent injunction forever restrain­
ing and enjoining defendants and each of them, their 
agents, employees, servants or attorneys, from maintaining 
or operating a compulsory racially segregated public school 
system in and for Davidson County, Tennessee, and from 
refusing to admit plaintiffs, and other persons similarly 
situated, to Gleneliff Junior High School, Antioch High 
School, and Bordeaux Elementary School, according to 
their respective applications as set out hereinabove, or 
any other public schools maintained and operated by defen­
dant, County Board of Education in and for Davidson 
County, Tennessee, because of their race or color.

In addition to the immediate and preliminary relief 
prayed hereinabove in behalf of the named infant plain­
tiffs individually, the plaintiffs pray that this Court also 
expeditiously enter a decree directing defendants to pre­
sent a complete plan, within a period of time to be deter­
mined by this Court, for the reorganization of the entire

Complaint



25a

school system of Davidson County, Tennessee, into a uni­
tary, nonracial school system which shall include a plan 
for the assignment of children on a nonracial basis, the 
assignment of teachers, principals and other school per­
sonnel on a nonracial basis, the drawing of school zone 
lines on a nonracial basis, the allotment of funds, the con­
struction of schools, the approval of budgets on a nonracial 
basis, and the elimination of any other discriminations in 
the operation of the school system or in the school cur­
riculum which are based solely upon race and color. Plain­
tiffs pray that if this Court directs defendants to produce 
a desegregation plan that this Court will retain jurisdiction 
of this case pending Court approval and full and complete 
implementation of defendants’ plan.

Plaintiffs further pray that the Court will allow them 
their costs herein and such further, other or additional 
relief as may appear to the Court to be equitable and just.

Z. A lexander L ooby and 
A von N. W illiams, Jr.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall and 
Jack Greenberg

10 Columbus Circle 
Suite 1790 
New York 19, N. Y.

Attorneys for Plaintiffs

Complaint

(Duly verified.)



26a

Filed: September 19,1960

Come the plaintiffs, named in the caption hereinabove, 
and move the Court to issue forthwith a temporary re­
straining order against the defendants in this cause, im­
mediately restraining and enjoining them and each of 
them, their agents, employees, servants, or attorneys, from 
refusing to admit the infant plaintiffs to Glencliff Junior 
High School, Antioch High School, and Bordeaux Ele­
mentary School, according to their respective applications 
as set out in the complaint, or any other public school or 
schools operated and/or maintained by said defendants 
in and for Davidson County, Tennessee, on account of 
plaintiffs’ race or color, pending further orders of the 
Court.

And for grounds of said motion, the said plaintiffs 
specify the matters and things alleged in their Complaint 
filed herewith, all of which are incorporated herein by 
reference and made a part of this motion.

Respectfully submitted,

Z. A lexander L ooby and 
A von N. W illiams, Jr.,

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall and 
Jack Greenberg 

10 Columbus Circle 
Suite 1790

New York 19, New l rork, 

Attorneys for Plaintiffs

M o tio n  fo r  T em p o ra ry  R estraining O rd er



27a

Filed: September 26, 1960

Come the plaintiffs, named in the caption hereinabove, 
and move the Court to issue a preliminary injunction 
against the defendants in this cause, restraining and en­
joining said defendants and each of them, their agents, 
employees, servants or attorneys, from refusing to admit 
the plaintiffs and other persons similarly situated, to Glen- 
cliff Junior High School, Antioch High School, and Bor­
deaux Elementary School, according to their respective ap­
plications as set out in the complaint, or any other public 
school or schools maintained and operated by the defen­
dant County Board of Education of Davidson County, 
Tennessee, in and for said County and State, because of 
their race or color, pending further orders of the Court.

And for grounds of said motion, the said plaintiffs 
specify the matters and things alleged in their complaint 
tiled herewith, all of which are incorporated herein by 
reference and made a part of this motion.

Respectfully submitted,

Z. A lexander L ooby and 
A von N. W illiams, Jr.,

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall and 
Jack Greenberg 

10 Columbus Circle 
Suite 1790

New York 19, New York 
Attorneys for Plaintiffs

M o tio n  fo r  P relim in ary  In ju n ction



28a

Order to Show Cause Why Temporary Restraining Order 
and/or Preliminary Injunction Should Not Issue

Filed: September 26, 1960

In the above cause the plaintiffs having filed their verified 
complaint together with Motions for a temporary restrain­
ing order and a preliminary injunction against the defen­
dants, for the purpose of immediately restraining and en­
joining them and each of them, their agents, employees, 
servants or attorneys, from refusing to admit the infant 
plaintiffs, and other persons similarly situated, to Gflen- 
cliff Junior High School, Antioch High School, and Bor­
deaux Elementary School, according to their respective 
applications as set out in the complaint, or any other pub­
lic school or schools maintained and operated by the said 
defendants in and for Davidson County, Tennessee, on ac­
count of plaintiffs’ race or color, pending further orders of 
the Court; and said motions being supported by the al­
legations contained in the complaint properly referred to 
and made a part thereof.

It is therefore Ordered that the defendants named in 
the caption of the complaint in this cause, and each of them, 
appear before the Honorable William F. Miller, H. S. Dis­
trict Judge, at 9 :00 A.M., on Sept. 26, 1960, in U. S. Dis­
trict Courtroom, Nashville, Tennessee, and show cause 
why the aforesaid temporary restraining order and/or pre­
liminary injunction should not issue.

W m. E. M il l e r  
XJ. 8. District Judge

Vol. 23. Page 997September 19, 1960.



29a

Filed: September 26, 1960

The defendants jointly move to dismiss the complaint 
filed against them in this cause upon the following grounds:

1. The complaint seeks extraordinary relief and pur­
ports to be sworn to, but the jurat of the Notary Public 
fails to contain any notarial seal, all as required by law.

2. The complaint seeks to attack and have declared un­
constitutional and void Article II, Section 12, of the Con­
stitution of Tennessee, and Sections 49-3701 through 49- 
3703 of the Tennessee Code of 1955, without either the 
State of Tennessee or its representative, the Attorney 
General of the State of Tennessee, being made a party 
thereto.

3. The complaint purports to be brought as a class 
action by certain infant school children on behalf of all 
other persons similarly situated without any showing that 
there are other persons similarly situated who seek to at­
tend any of the public schools of Davidson County, Tennes­
see, which they are not now attending, or who would be 
qualified to attend any such schools.

4. The complaint seeks to obtain a reorganization of 
the entire school system of Davidson County, Tennessee, 
insofar as teachers, principals and other school personnel 
are concerned; whereas, no such persons are parties to the 
complaint.

And the Defendants, and All of Them, Further Move to 
Dismiss the Complaint Insofar as Extraordinary Relief 
By Way of Temporary Restraining Orders and/or Pre­
liminary Injunctions for the Reasons That:

1. These plaintiffs are seeking equitable relief of an 
extraordinary nature and by their own admission have

M o tio n  to D ism iss



30a

been guilty of laches in failing to make any application for 
admission to the schools of Davidson County, Tennessee, 
which they seek to attend until after all pupil assignment, 
school zones, transportation facilities and the like had been 
determined for the school year 1960-1961.

2. These plaintiffs are seeking equitable relief of an 
extraordinary nature and have been guilty of laches over 
the past several years in failing to seek admission to the 
schools of Davidson County, Tennessee, which they seek to 
attend and now seek to obtain such admission by means of 
the exercise of such extraordinary relief through this Hon­
orable Court.

And the Individual Defendants Move to Dismiss the Com­
plaint Insofar as the Same is Filed Against Them 

Individually for the Reason:

1. No action on the part of these defendants as in­
dividuals has been recited in the complaint as the basis 
for a complaint on the part of the plaintiffs, and, on the 
contrary, such action as is complained of is under the 
allegations of the complaint the official action of such 
defendants.

Shelton L uton

County Attorney for 
Davidson County, Tennessee 

Davidson County Courthouse 
Nashville 3, Tennessee

H aelan D odson, Jb.
1106 Nashville Trust Building 

Nashville 3, Tennessee

Attorneys for Defendants

Motion to Dismiss



31a

Filed: September 26, 1960

J. E. Moss, being first duly sworn, deposes as follows:

That he is sixty-one (61) years of age and is a resident 
of Davidson County, Tennessee, and has been superin­
tendent of Davidson County Schools since 1949. That as 
such he is the administrative head of the public schools of 
Davidson County, Tennessee, and acts under the supervi­
sion of the Davidson County School Board.

That the public schools of Davidson County have, 
throughout his lifetime, been operated on a segregated 
basis with separate schools for white and negro students. 
That neither prior to nor since the decision of the Supreme 
Court of the United States in 1955 in the case of Brown v. 
The School Board has any request been made to him or of 
him by any negro pupil or the parents of any negro pupil 
in Davidson County, Tennessee, for the operation of the 
schools of Davidson County on an integrated basis prior to 
September 2, 1960. That neither has any group of negroes 
or whites, by petition, letter, verbal communication or 
otherwise, requested of the Davidson County School Board 
that the schools of Davidson County be operated on an in­
tegrated basis insofar as he is advised and that, in the event 
any such request had been made, such would have in the 
normal course of the operation of the School System been 
communicated to him. That, on the contrary, on more than 
one occasion delegations of negro pupils, or the parents of 
negro pupils, have requested, either verbally or in writing, 
that the School System of Davidson County be continued 
on a segregated basis. That in September of 1955 the 
County Board of Education of Davidson County was pre­
sented with a petition for a new school building in the 
Goodlettsville, Tennessee, area, which petition was signed 
by the officers and practically all members of the Good-

A ffidavit o f  J. E. M oss in S u p p o rt o f  M otion



32a

lettsville Colored P. T. A. That this request contained the 
express statement, “ We do not want integration in Good- 
lettsville.” A copy of this said petition is attached hereto 
as Exhibit “ A ” to this affidavit and the original of the same 
is on file in the office of the Davidson County School Board. 
That, pursuant to the request contained in said Exhibit 
“A ” and in keeping with the over-all plans of the David­
son County School Board, a new school was constructed in 
the Goodlettsville, Tennessee, area serving the areas of. 
Ridgetop and Goodlettsville. That in May of 1954, the 
Davidson County School Board had under consideration 
the construction of a consolidated school for negroes either 
in the Neeley’s Bend area in the Eleventh Civil District 
of Davidson County, or in the Hermitage area in the Fourth 
Civil District of said County. At that time a large delega­
tion of negroes from the Neeley’s Bend area appeared be­
fore the School Board requesting that the school be built 
in the Neeley’s Bend community and, when they were ad­
vised by the School Board that a new white school had just 
been built in that area, the group responded, in substance, 
that they did not want their children to go to school at a 
white school, but wanted a negro school on a completely 
segregated basis. That, in other instances, various groups 
of negroes and individual negroes have stated to affiant 
and to others in affiant’s presence that they did not de­
sire integrated schools, but, rather, wanted the schools 
continued on a segregated basis.

Affiant further states that the data set forth on the at­
tached sheet as Exhibit “ B” to this affidavit correctly re­
flects the information contained thereon as reflected by the 
records of the Davidson County Board of Education.

Affiant further states that negro children are housed in 
better and more modern buildings than white children,

Affidavit of J. E. Moss in Support of Motion



33a

since, for the most part, they are in new units. All of the 
school buildings housing negro children have been built 
within the past twelve (12) years excepting the Early 
School in the Eighth Civil District of Davidson County and 
a portion of Haynes High School located in the Twelfth 
Civil District. These latter two units, however, have been 
modernized and are above average in the County for 
schools. Affiant further states that all of the facilities 
in both the negro and white schools are modern and com­
parable. Affiant further states that negro schools operate 
on the same fiscal policy as white schools in that the alloca­
tion of funds is on a per pupil basis with both races receiv­
ing funds under the same formula and that equal opportuni­
ties are afforded as to courses of study, text books, instruc­
tional material and equipment. Affiant further states that 
the teacher-pupil ratio for the negro pupils is 29.35 pupils 
per teacher and the ratio in the white schools is 28.92 pupils 
per teacher.

Affiant further makes oath that, in the spring of each 
year before the conclusion of the school year, a pre-school 
spring registration is held in order to give information 
as to the number of students and location of the same for 
the next school year. That Henry C. Maxwell, Jr. and Ben­
jamin Grover Maxwell, both of whom are plaintiffs in the 
instant suit, completed their elementary schooling in the 
spring of 1960 at the Providence Public School. That dur­
ing the spring registration in 1960 both of these pupils 
registered at Haynes High School for attendance there 
during the school year 1960-1961. That Cleophus Driver, 
Christoper C. Driver and Deborah D. Driver, plaintiffs in 
the instant case, were students at Haynes Elementary 
School during the school year 1959-1960 and, having re­
ceived no advice of their intention to move or change their

Affidavit of J. E. Moss in Support of Motion



34a

schools, their names were carried forward as expected to 
be in attendance at Haynes Elementary School during the 
school year of 1960-1961. That the same situation with 
respect to Deborah Ruth Clark existed as with the Driver 
children. That the method of anticipation of attendance 
during the school year 1960-1961 was the same for the 
children listed as plaintiffs in the instant case as it was 
for all of the other children in Davidson County, Tennessee, 
similarly situated. That, in the spring of each year, the 
principals of each of the schools make their requests or 
requisitions to the School Board for the books which they 
will need during the ensuing year and, at that time, make 
their requests for rooms, temporary housing facilities, when 
needed, and for their teachers, all for the next school year 
and, based upon these requests, the Board of Education pre­
pares and submits its request to the County Court for 
school funds for the next year. Of course, there are in­
stances where students, for various reasons, change from 
one school to another, but such is not permitted by affiant 
or the School Board without some justification and any 
alteration of the planning and programming by any sub­
stantial group of students changing schools would com­
pletely disrupt and disorganize the school system. Affiant 
further states that any attempt on his part, or on the part 
of the Davidson County School System, to change from a 
segregated school system to an integrated school system 
on August 31, 1960, or thereafter, without substantial pre­
liminary planning, would have been chaotic in the adminis­
tration of the school system.

That since the unfortunate incident of the burning of 
the Bordeaux Elementary School on September 9, 1960, 
your affiant and the School Board have been making every 
effort, through the use of makeshift classrooms, repair

Affidavit of J. E. Moss in Support of Motion



35a

work, use of temporary facilities such as churches and the 
like, and transportation of pupils to schools operated by 
the City of Nashville, to furnish facilities for the student 
body of this school. This situation has created and is con­
tinuing to create great confusion, hardship and difficulty 
on pupils, parents and school officials, and any further 
problems in the operation and administration of this school 
at this time would be highly undesirable.

Further this affiant saith not.
J. E. Moss

Affidavit of J. E. Moss in Support of Motion

Sworn to and subscribed before me, this 26th day of 
September, 1960.

H elen M. H utchison 
Notary Public.

My commission expires:

Oct. 19, 1960

(Seal)



36a

EXHIBIT “A ” TO AFFIDAVIT OF J. E. MOSS

Agenda Goodlettsville, Term.
Sept. 12,1955

County Broad of Ed.

We the parents want a better and more comfortable 
school in Goodlettsville. We want a consolidated school 
with Bidgetop, Amqui, & Edenwold communities.

We do not want Integration in Goodlettsville.
We need a janitor for at least five months, since there is 

not a child in school old enough for the responsebility of 
the job.

We want cool water in summer months.
We need a new school because it’s impossible for one 

teacher to teach (8) eight grades under present conditions 
and give our children the attention and justice they deserve

Signed by Goodlettsville Colored P. T. A.

Mrs. Alice Cantrell—pres.
Mrs. Beulah Cartwright—Asst. Sec.
Mrs. Mattie Cartwright Sec.

Mrs. Beatrice Vaughn 
Mrs. Lula Joyner 
Mrs. Jessie H. Jones 
Mrs. Bessie Patton 
Mrs. Mamie Washington 
Mrs. Bobbie Washington 
Mrs. Sadie Bell Cartwright 
Mrs. Ester Louise Matthews 
Mrs. Mary Elizabeth Mathews 
Mrs. Hattie M. Stanton 
Mrs. Mary Sue Cantrell 
Mrs. Rizzie Mae Joyner 
Mrs. Willie Johnson 
Mrs. Maud Joyner 
Ernest Matthews



37a

EXHIBIT “ B” TO AFFIDAVIT OF J. E. MOSS

Data on D avidson County S chools

Total number of white children 44,415
Total number of negro children 2,348
Total number of County students 46,763
Total number of negro elementary schools 7
Total number of negro high schools 1
Total number of white elementary schools 62
Total number of white high schools 16
Percentage of white children 95
Percentage of negro children 5
Number of white teachers 1,536
Number of negro teachers 80
Number of white central office supervisors 20
Number of negro central office supervisors 1
Percentage of negro central office supervisors 5

Trend of population for the last five years:
White Negro Total

1956 35,270 2,001 37,271
1957 37,551 2,032 39,583
1958 40,152 2,089 42,241
1959 42,614 2,281 44,895
1960 44,415 2,348 46,763

Percentage increase in the last five years-—white 26
Percentage increase in the last five years-—negro 17

Average salary 1959-60

Negro women 
White women 
Negro men 
White men

$4,665.30
$4,380.97
$4,849.96
$4,529.35

* Taken from annual report to State Department



38a

Filed: September 26, 1960

Frank White, being duly sworn, deposes and says:

That he is a resident of Davidson County, Tennessee, 
and has been all his life ; that he served as Chairman of the 
Davidson County School Board from September of 1958 
until September 22, 1960, and has served as a member of 
the Davidson County School Board for more than twenty 
years.

That at no time prior to September 2, 1960, was any re­
quest ever communicated to the Davidson County School 
Board to his knowledge, either formally or informally, for 
a desegregation of the Public School System of Davidson 
County, and that if such had been communicated he would 
probably have known of it and, during the last two years 
as Chairman of the School Board, would have been the 
person on the School Board to whose attention such would 
have been directed. That plans for the assignment of 
teachers, pupils, books, transportation facilities and hous­
ing facilities for a school year are made in the spring next 
preceding the school year and that any attempt to make a 
complete change in the same at the beginning of the school 
year as would be necessitated by desegregation of the 
schools would be practically impossible without a complete 
disruption of the entire school program.

That rather than there being requests for desegregation 
of the School System, the only communications which have 
been addressed to the School Board by either negroes or 
whites have been requests for a continuation of segregated 
schools. That two specific instances of such requests were 
in connection with the request of the Neeley’s Bend group 
of negroes and the Goodlettsville Colored P. T. A., both

A ffidavit o f  F ran k  W h ite  in  S u p p ort o f  M otion



39a

of which are correctly reflected in the affidavit of J. E. 
Moss, which is adopted as to these particulars by affiant.

Affiant further makes oath that any attempt to evolve 
a plan of desegregation of the Davidson County Public 
School on an orderly basis would require substantial plan­
ning, data accumulation and the like by the School Board 
and its staff and would consume a several months’ period 
of time.

Further affiant saith not.

F rank P. W hite

Affidavit of Frank White in Support of Motion

Sworn to and subscribed before me, this 26th day of 
September, 1960.

H elen M. H utchison 
Notary Public.

My commission expires: 

Oct. 19,1960

( S e a l )



40a

Filed: September 26,1960

Melvin B. Turner, being duly sworn, deposes and says:

That he is forty-five (45) years of age, is a resident of 
Davidson County, Tennessee, and is transportation super­
visor for the Davidson County Schools. That as such it is 
his duty and responsibility to provide public school bus 
transportation for all pupils attending Davidson County 
Public Schools who are eligible for or require such public 
transportation. That the Davidson County School System 
operates ten (10) routes serving negro school children 
and eighty-seven (87) routes serving white school children. 
That the percentage of negro children transported by public 
school buses of the Davidson County system is 55% and 
that of white children transported by such system is 48% 
of the total respective enrollments.

Affiant, further states that, by reason of the minimum 
distance requirement for public school bus transportation, 
children living several miles from school have an advan­
tage over those living near the school in that a child living- 
less than one and one-quarter miles from school must 
walk or furnish his own transportation while those living 
farther than said distance are furnished public transporta­
tion by the County School System. That a child living ten 
or twelve miles from school is delivered in a safe, modern 
bus in approximately the same time it would take a child 
living a mile from school to walk the distance; that the 
child on the bus is protected from the traffic hazards to 
which the pedestrian child would be subjected.

That affiant knows where the plaintiffs Maxwell reside, 
which residence is approximately four-tenths of a mile 
from Nolensville Road and up a dead-end street; that the

Affidavit o f  M elv in  B . T u rn e r in  S u p p o rt o f  M otion



41a

County public school bus which transports white students 
to Antioch High School would use the same pick-up point 
were there any white students to pick up at this corner 
where infant plaintiffs Maxwell take the negro school bus.

That even though the distance from plaintiffs Maxwells’ 
said residence to Haynes High School is greater than that 
to Antioch High School, the actual time consumed en route 
by bus is approximately the same; that this results from 
the fact that the route travelled by the bus to Haynes 
High School is more direct and requires fewer stops than 
that to Antioch High School.

That the infant plaintiffs Driver and Clark live approxi­
mately one mile from Bordeaux Elementary School, which 
fact would preclude them from being eligible for public 
school bus transportation; that said infant plaintiffs Driver 
and Clark, in riding the County School System bus from 
their home to Haynes High School, as they have been 
doing, consume no more than the amount of time which it 
would take them to walk from their said residence to Bor­
deaux Elementary School.

Further this affiant saith not.

M elvin B. T urner

Affidavit of Melvin B. Turner in Support of Motion

Sworn to and subscribed before me, this 26th day of 
September, 1960.

My commission expires: 

Oct. 19,1960

(Seal)

H elen M. H utchison 
Notary Public.



42a

Motion to Strike Certain Portions of the Complaint

Filed: September 26, 1960

The defendants, and each of them, move to strike cer­
tain portions of the complaint as follows:

1. The defendants move to strike that portion of Para­
graph 10 of the complaint which reads as follows:

“ The plaintiffs, and members of their class, are injured 
by the policy of assigning teachers, principals and 
other school personnel on the basis of the race and 
color of the children attending a particular school and 
the race and color of the person to be assigned. As­
signment of school personnel on the basis of race and 
color is also predicated on the theory that Negro 
teachers, Negro principals and other Negro school per­
sonnel are inferior to white teachers, principals and 
other white school personnel and, therefore, may not 
teach white children.”

2. The defendants move to strike that portion of the 
complaint set forth as a part of the sixth ground of relief 
asked and specifically being that part reading as follows:

“ which shall include . . . the assignment of teachers, 
principals and other school personnel on a nonracial 
basis.”

Shelton L uton 
County Attorney for 
Davidson County, Tennessee 

Davidson County Courthouse 
Nashville 3, Tennessee

H arlan D odson, Jr.
1106 Nashville Trust Building 

Nashville 3, Tennessee

Attorneys for Defendants



43a

Filed: September 26,1960

The defendants, and each of them, for answer to the 
complaint filed in this cause and answering say:

1, 2 and 3.

The defendants admit the averments of Sections 1, 2 and 
3 of the complaint.

4.

Defendants assume that the allegations of Section 4 of 
the complaint are true, but neither admit nor deny the 
averments since they are without sufficient information to 
respond thereto.

5.

These defendants admit the allegations of Section 5 of 
the complaint.

6.
These defendants admit the factual averments of Sec­

tion 6 of the complaint, but neither admit nor deny the 
plaintiffs’ conclusions based thereon.

7.

These defendants admit the allegations of Section 7 of 
the complaint.

8.
These defendants admit that they are and have been 

operating racially segregated schools as the school system 
of Davidson County, Tennessee, but they deny that the 
Negro schools are a secondary system of schools. Subject

A n sw er



44a

to the explanations and exceptions hereinafter set forth, 
these defendants admit the other allegations of Section 8 
of the complaint.

9.

These defendants expressly deny the allegations of the 
first sentence of Section 9 of the complaint, and, on the con­
trary, would show to the Court that the requests which 
they have had from Negro citizens and residents of David­
son County prior to September 2, 1960, have been for a 
continuation of racially segregated schools.

10.

These defendants admit that on September 2, 1960, the 
infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin 
Grover Maxwell, presented themselves with their parents 
and made application for admission to the Gleneliff Junior 
High School, but these defendants deny that such applica­
tion was made timely or that it was made to the Antioch 
High School and deny that they could have been admitted 
to the Gleneliff Junior High School, whether white or 
Negro, but admit that they were denied admission to the 
Gleneliff Junior High School by reason of race or color. 
These plaintiffs were seeking admission to the ninth grade 
of Gleneliff Junior High School. These defendants further 
admit that the infant plaintiffs, Cleophus Driver, Chris­
topher C. Driver and Deborah D. Driver, presented them­
selves with their mother and made application for admis­
sion to the Bordeaux Elementary School, Cleophus Driver 
seeking to enter the sixth grade, Christopher C. Driver 
seeking to enter the fourth grade and Deborah D. Driver 
seeking to enter the second grade, but they deny that such 
application was timely. These defendants further admit

Answer



Answer

that the plaintiff, Joe F. Clark, presented himself at the 
Bordeaux Elementary School and sought admission of his 
daughter, Deborah Ruth Clark, to the fifth grade thereof, 
but they deny that this application was timely. These de­
fendants are not advised as to the children of the plaintiff, 
Mrs. Robbie Davis, or as to the child of Rebert Taylor 
and wife, Stella Taylor, but insofar as they are advised 
none of these said parties have made any application or 
request to attend any of the public schools of Davidson 
County, other than those which they are now attending.

In this connection these defendants would show to the 
Court that at the schools referred to herein, as well as 
other schools in the Davidson County School System, there 
is a preschool registration in the Spring of each year be­
fore the conclusion of the school year, and that the purpose 
of the same is to afford the school authorities data on which 
to complete the formulation of their plans for assignment 
of teachers, classrooms, pupils, books and the like for the 
next ensuing year. Any or all of these plaintiffs could have 
made application at the time of such preschool registra­
tion, and while these defendants admit in all frankness 
that they would not have been admitted to the so-called 
white schools on an integrated basis, they would show to 
the Court that it would have given to these defendants an 
opportunity to make orderly plans for the assignment of 
such pupils as it became necessary.

Further answering the allegations of this Section of the 
complaint, these defendants deny the fanciful allegations 
that compulsory racial segregation imposes unreasonable 
burdens upon the infant plaintiffs and other Negro chil­
dren similarly situated in that they are subjected to unwar­
ranted physical and health hazards, are deprived of oppor­
tunities for athletic and cultural development, that their



46a

opportunity for educational instruction and study is re­
duced or otherwise. On the contrary and specifically, these 
defendants would show to the Court that if the plaintiffs, 
the Maxwell children, were attending Antioch High School 
they would still have the same walk each morning to the 
school bus pick-up point, and in like manner since the school 
bus transportation afforded them presently is direct trans­
portation without the necessity of frequent stops, they 
leave home and arrive home at approximately the same 
time as white children attending Antioch High School. In 
similar manner, the Driver and Clark children named as 
infant plaintiffs would be deprived of school bus trans­
portation if they attended Bordeaux Elementary School, 
and rather than imposing unnecessary burdens upon these 
plaintiffs, they are presently afforded safe transportation, 
free from the hazard of walking along heavily traveled 
thoroughfares, and actually in most instances requiring less 
transportation time.

These defendants do not admit the conclusion stated by 
the plaintiffs as respects the interpretation of the policy 
set forth in the minutes of the Board of Education of 
September 8,1960, but do admit that the Board has followed 
and is following a policy of racial segregation for the rea­
son that such has been the requests of all Negroes who 
have made their wishes known to the Board prior to Sep­
tember 2, 1960. While these defendants admit that class 
work was not commenced in the school system until Sep­
tember 6, 1960, they deny that the statement of the Board 
set forth in its quoted minutes is incorrect, and would show 
to the Court that the current school year had commenced 
with the registration on September 2, 1960, and that plans 
for transportation, zoning of students, distribution of 
school books and the like for the county-wide system is

Answer



47a

done in the Spring of the year; at which time each school 
principal makes his request for books and his requests for 
rooms, teachers and other facilities and at which time 
plans are prepared for student transportation, all of which 
would have been completely disorganized if the plan of 
school segregation were suddenly discontinued on Septem­
ber 2, 1960, and these defendants would show to the Court 
that such action by either the defendant, J. E. Moss, or the 
School Board, at that time would have resulted in chaos.

These defendants admit that insofar as they are ad­
vised by the office personnel of the Board of Education an 
attempt was made by some persons, including some of the 
adult plaintiffs, to see the defendant, J. E. Moss, on Au­
gust 31, 1960, and/or September 1, 1960, but at that time 
the defendant, J. E. Moss, was so busily engaged in service 
training organization for all teachers and other administra­
tion duties necessary to the commencement of school that 
it was impossible for him to see such persons at that time.

These defendants further admit that on the morning of 
September 9, 1960, a major portion of the Bordeaux Ele­
mentary School was destroyed by fire, and these defendants 
would show to the Court that such has caused great dis­
ruption in the operation of the Bordeaux Elementary 
School, but they have managed to use the remaining facili­
ties and some repairs thereon to house some of the stu­
dents, that others are being sent to other schools and that 
any further imposition of a change in the orderly operation 
of this school at this time would only increase the chaos and 
disruption resulting from this unfortunate incident.

These defendants further admit that teachers, principals 
and other school personnel have been assigned in accord­
ance with what the School Board deemed would be in the 
best interest of the Board, the teachers, the schools and

Answer



48a

Answer

the pupils, but they deny that such assignments have been 
based on any principle of superiority and inferiority, as 
evidenced by the fact that the average salary for Negro 
women in the Davidson County School System during the 
school year 1959-1960 was $4,665.30, as contrasted with that 
of white women of $4,380.97; and during the same period 
the average salary for Negro men in the School System 
was $4,849.96, while that for white men was $4,529.35; all 
of which appears on the records on file with the State De­
partment of Education of the State of Tennessee.

11.
These defendants admit the allegations of Section 11 of 

the complaint.

12.
These defendants deny the arguments and conclusions 

of the pleader set forth in Section 12 of the complaint, but 
admit that it is proper and wmuld be proper for this Court 
to require of these defendants, as it has of other defen­
dants similarly situated, the presentation of a plan for 
orderly pupil desegregation of the Davidson County School 
System where desired by Negro students.

13.

These defendants deny the allegations of Section 13 of 
the complaint.

14.

These defendants admit the allegations of Section 14 of 
the complaint insofar as it pertains to some of the parties 
plaintiff but denies that there is an actual controversy as 
between all parties plaintiff and the defendant and denies



49a

that there is an actual controversy as to all matters set 
forth in the complaint.

15.

These defendants aver, as heretofore set forth, that prior 
to September 2, 1960, they had had no request for school 
desegregation in the county system of Davidson County, 
and, on the contrary, as heretofore set forth, aver that 
their requests have been to the contrary. Now that they 
have been faced with a request for such pupil desegrega­
tion, they aver that they are and will proceed in good faith 
and with all reasonable promptness to implement the princi­
ples announced by the Supreme Court of the United States 
in May of 1955 in the case of Brown v. Board of Education 
of Topeka, Kansas. These defendants aver that this deci­
sion recognized as a fact that there are complexities and 
obstacles demanding that the situation be studied and an 
intelligent plan formulated consistent with the various pub­
lic and private interests involved. They aver that they and 
their predecessors in office have created and established and 
are presently maintaining a public school system of high 
quality with facilities afforded Negro pupils equal to or 
better than those afforded white pupils. Presentely there 
are 44,415 white children attending the Davidson County 
public schools and 2,348 Negro children attending such 
schools; presently there are 7 Negro elementary schools and 
one Negro high school and 62 white elementary schools and 
16 white high schools; there are 1,536 white teachers and 80 
Negro teachers, 20 white central office supervisors and one 
Negro central office supervisor. The percentage of white 
children is approximately 95, as contrasted with only 5 per 
cent Negro children, and the percentage of white teachers

Answer



50a

is 95, as contrasted with 5 per cent Negro teachers, and the 
percentage of white central office supervisors is 95, as con­
trasted with 5 per cent Negro central office supervisors. 
There are 10 bus transportation routes serving Negro 
children and 87 such routes serving white children, with 
the result that approximately 10 per cent of the bus trans­
portation routes serve Negro children. Negro pupils are 
housed in better and more modern buildings than white 
children, since for the most part the Negro school buildings 
are new, and all of the cafeterias in both the Negro and 
white schools are modern and comparable; further school 
funds are allocated on the same per pupil basis to both 
Negro and white schools, both races receiving funds under 
the same formula and both races have equal opportunity 
as to courses of study, text books, instructional material 
and equipment.

W herefore, these defendants aver that there is no emer­
gency situation existing requiring the exercise of any 
extraordinary relief from this Court, but, on the contrary, 
these proceedings should be handled in the deliberate man­
ner heretofore recognized by the courts as being in compli­
ance with the principles enunciated by the Supreme Court 
of the United States.

Answer

16.

Any allegations of the original complaint not herein­
before admitted, explained or denied are here and now 
expressly denied.



51a

And now having fully answered, these defendants pray 
that they be hence dismissed, or in the alternative for 
further orders of the Court consistent with the equities of 
the case and the laws of the United States and the State 
of Tennessee.

Answer

Shelton L uton 
County Attorney for 
Davidson County, Tennessee 

Davidson County Courthouse 
Nashville 3, Tennessee

H arlan D odson, Jr.
1106 Nashville Trust Building 

Nashville 3, Tennessee

Attorneys for Defendants



52a

Excerpts From Transcript of Hearing, 
September 26, 1960

J. E. Moss, called as a witness by the plaintiffs for cross- 
examination on his affidavit, being first duly sworn, was 
examined and testified as follows:

Cross Examination on Affidavit by Mr. Williams:-A' "a~ ~n~

— 52—
*  *  *  *  *

Q. Mr. Moss, you do have complete segregation through­
out, do you not? A. Yes, sir.

— 53—
Q. You do designate White schools and Negro schools? 

A. Yes.
Q. You have White teaching personnel in White schools 

and White supervisory personnel in White schools and 
Negroes in Negro schools? A. Yes.

Q. Is that right? A. That’s correct.
Q. You wouldn’t place a Negro teacher in a White school, 

would you? A. We haven’t.
Q. It would be against the policy of the Board to do 

that, wouldn’t it? A. It would.
Q. Why, sir? A. Because we have been operating on a 

segregated basis.
# * # # #

— 56—
* # # # *

Q. If they had moved farther away from that school, 
closer to another, they would have been transferred, 
wouldn’t they? So that the fact that they were registered 
out at Haynes had nothing to do with their denial of ad­
mission. It was the policy of segregation that caused it?

- 3 7 -



53a

A. The two children; no, sir. Substantial registration would 
have, of course, brought trouble.

Q. Yes, sir; but nobody presented themselves there but 
the Maxwells. That’s correct, is it not? A. All the Eighth 
Grade from Providence were carried to Haynes on spring

— 57—

registration.
Q. I am talking about on September the 2nd, the Max­

well’s were the only Negro children who presented them­
selves at Glencliff? A. That is correct.

Q. You knew, Mr. Moss, that they were actually regis­
tered out there by the principal, did you not, sir? A. I 
didn’t know that.

Q. You didn’t know that they were actually registered? 
A. He talked to them, but I don’t think that he actually 
registered them.

Q. Of course, you don’t know that? A. I don’t know 
that.

Q. You don’t know that. I see. Now, Mr. Moss, if in 
the spring of the year—I mean, if on this date, September 
the 2nd, the date that administrative transfers are made, a 
pupil has moved or something and you all have granted 
transfer for administrative reasons, you wrould still have 
the same problems with regard to books, and so forth, that 
you would have had if the Maxwells had been admitted? 
A. The two children wouldn’t have demoralized the school, 
of course, from that standpoint.

Q. And the four children at Bordeaux wouldn’t have 
demoralized the school, either, would they? A. We are 
talking about substantial transfers.

— 58—

Q. Yes. If they had just let the six in, there wouldn’t 
have been any great administrative problem? A. Not from 
the standpoint of books or teachers, no.

*  #  #  #  #

J. E. Moss—for Plaintiffs—Cross



54a

Melvin B. Turner—for Plaintiffs—Cross

—59—
 ̂  ̂ ^

Q. Mr. Moss, if these children were admitted to these 
schools now, if the Maxwell children, who have been out of 
school, were admitted to Glencliff or Antioch now, they 
would have the same time to make up that they would if 
they were admitted to Haynes, would they not? A. Yes, 
they would.

Q. There wouldn’t be any administrative problem about 
that, would there? A. I wouldn’t say there wouldn’t be any 
administrative problem. If we had our children and teach­
ers ready to accept them, maybe there wouldn’t be too much 
of a problem.

* * * * *

—66—
* * * * *

M elvin B. T urner, called as a witness by the plaintiffs 
for cross-examination on his affidavit, being first duly sworn, 
was examined and testified as follow s:

Cross Examination on Affidavit by Mr. Williams:
* * * * *

—67—
Q. Isn’t it true, Mr. Turner, that there are Negro chil­

dren in Davidson County that have to travel as much as 
100 miles a day in order to go to school? A. That is true, 
and Whites also.

Q. But these Negro children pass White schools en route, 
don’t they, many of them? A. Many of them do.

Q. Yes, sir. And there is no question but that the Max­
well children have to get up early in the morning and that 
they don’t get home until about dusk? A. Yes.



55a

Q. Riding 24 miles a day? A. It’s about 7 :30 in the morn­
ing and they are home before five in the afternoon, which 
is a little later than the average but not as late as a whole 
lot of people.

Q. Yes, sir. But they have to walk that half mile home 
after they are dropped off the bus there, don’t they? A. 
We don’t go up any dead-end road for less than a half- 
a-mile distance.

J. E. Moss—for Plaintiffs—Recalled—by the Court

—69—
* * * * *

Q. Mr. Turner, as a matter of fact, the White Schools 
throughout this county are scattered all over the county 
and are well placed so that, by and large, no White child 
has to ride these—very few White children have to ride 
these great distances that the bulk of the Negro children 
have to ride, isn’t that true? A. It is true that the Negro 
children to high school ride more distances on the average, 
considerably more; yes, sir.

* * * * *
—114—

* * * * *
J. E. Moss, recalled as a witness by the Court, being pre­

viously duly sworn, was examined and testified further as 
follows:

Examination by the Court:

Q. Now, Mr. Moss, you have heard the statements made 
here in court today about these young children, and I

— 115—
would like to ask you if the Maxwell children, the Driver 
children, and the Clark girl were allowed to attend the 
schools that they have applied to attend, would that or



56a

not create any administrative problems of any kind? A. 
Yes, sir; I think it would.

Q. Without any further relief, you understand! In other 
words, just limited to those particular children, would that 
create any problems? A. Your Honor, I wouldn’t want to 
say that six children would overload the system, I am not 
saying that. Of course, Bordeaux, as has been brought out 
in the affidavit, is a pretty bad situation.

And, too, if I may, I would like to make this point: They 
are saying that there is an emergency, a hardship. Most 
of the hardships in our county system are caused by lack 
of buses rather than of buses. For instance, I would rather 
my child would ride a safe bus ten miles to school as to 
have to walk over these highways one mile. So the emer­
gency doesn’t exist, as I see it.

*  #  *  *  *

—116—
* # # * #

J. E. Moss—for Plaintiffs—Recalled—by the Court

By the Court:

Q. Are there any other problems that you think of that 
this would create? If there are any, I would like to hear 
what they are, considering the County system as a whole, 
taking it as a unitary system. A. Well, I certainly think 
there would be a good deal of friction in the high school 
if these children were entered in high school at this time.

Q. That would apply to which children? A. Maxwell.
Q. The Maxwell children? Would that apply to the other 

children? A. Well, there might be some friction in the 
other schools, I mean, where the larger children were in­
volved.

Q. You do not anticipate any serious problem if some 
sensible, workable plan were formulated to desegregate



57a

these schools, do you, from the standpoint of friction? A.
— 117—

I think the Board can work out a sensible plan, if given 
time.

Q. What do you have to say about the time required to 
work out a plan? Do you have any ideas on that? A. I 
wouldn’t want to be too specific on that. I think Your 
Honor would know more of what would be a reasonable 
time than we would.

The Court: Any further questions of Mr. Moss?

Further Cross Examination by Mr. Williams:

Q. Mr. Moss, you say you think there would be friction. 
How many children are in Antioch High School? A. I be­
lieve in the high-school part, there are about 900.

Q. And you say that you think there will be friction if 
these two little boys are admitted to school there? A. I 
am thinking of what children will do, one to another. I am 
thinking about Little Bock. I am thinking what has hap­
pened in other schools where larger children are entered.

Q. Well, don’t you have friction there among children 
occasionally? A. I believe there would be a different type 
friction here, though.

Q. Well, you wouldn’t help to stir up the friction, would
—118—

you, Mr. Moss? A. I wouldn’t help to stir up—
Q. You wouldn’t want to help to stir up the friction, 

would you? A. No, sir. I do not want to stir up any more 
friction than I can help.

Q. Well, wouldn’t you think that your statement ahead 
of time that there would be friction would help to stir up 
the friction? A. Well, I think we have a precedent for that.

J. E. Moss—for Plaintiffs—Recalled—Further Cross



58a

Q. Yes, sir. You have the Little Rock precedent for 
that, don’t you, sir? A. I know no other school where— 
where—where they’ve started in high school besides Little 
Rock. At least, I don’t have—

Q. (Interrupting) Little Rock is the only one that has 
interested you? A. No. Little Rock is the one I have in 
mind that started in high school as far as high-school age 
is concerned.

Q. Well, on what facts do you predicate your thought 
that there would be friction, Mr. Moss? A. Well, Mr. Wil­
liams, in the beginning, we started out to—in a sincere way 
to get a committee to work out a plan of integration. We 
saw it coming. And I went to meetings with White parents

—lig ­
and Negro parents, and I could not find any White parents 
that would go along with me or would sit down with me 
and talk about it, and I couldn’t find any Negro parents 
that would do it.

Now, the NAACP, your group, of course, I knew was 
interested in integration, but I couldn’t get my parents, 
White or Colored, to sit down and talk to me about it.

Q. How many parents did you see, Mr. Moss? A. Well, 
numerous, numerous, numerous.

Q. Mr. Moss, did you ever appoint a committee composed 
of parents? A. We had a committee. Yes, sir. We had a 
committee.

Q. Did you ever appoint a committee composed of Negro 
and White parents, Mr. Moss? A. No. No. I couldn’t get 
that far along.

Q. You say you couldn’t get that far along? A. I 
couldn’t get that far along.

Q. Why couldn’t you get that far along? A. We first 
tried to start by having a staff committee of principals 
and teachers and— of—of both races together.

J. E. Moss—for Plaintiffs—Recalled—Further Cross



59a

Q. Mr. Moss, as a matter of fact, your statement to the 
Court that you think there might be friction, that is not an 
administrative problem. That is your thought based on 
your own prejudice and what you think is the prejudice of

— 120—

the community, isn’t it! A. I ’m not going to admit that I 
have a prejudice.

Q. You have no prejudice whatsoever? A. I think there 
would be trouble, yes.

Q. You say you have no racial prejudice whatever? A. 
No. I have none.

Q. Then you would work and instruct your supervisory 
staff and your teaching personnel so as to eliminate any 
friction, wouldn’t you, Mr. Moss? A. I would try to, yes.

Q. Well, you have been successful in everything else 
you have done, pretty much, in the School System, haven’t 
you, sir? A. No.

Q. Well, Mr. Moss, when these people as you say, came 
over wanting segregated schools, you were able to get the 
Board to go along with them on that, weren’t you, sir? A. 
Well, there wasn’t any change there.

Q. Yes, sir. Well, you frequently have problems where 
the parents come in and teachers and pupils come in com­
plaining about things, don’t you, sir? A. Yes, sir.

Q. And you have been able to handle that all right ad­
ministratively, have you not, Mr. Moss? A. Well, they 
have been handled—

—121—
Q. Yes, sir. A. —one way or another.
Q. As a matter of fact, isn’t it true that the newspapers 

have tried to get the County Board to do something about 
desegregating the County Schools ?

J. E. Moss—for Plaintiffs—Recalled—Further Cross



60a

Mr. Dodson: I object to that, if the Court please.
The Witness: Not to my knowledge.
The Court: Sustained.
Mr. Williams: All right.

By Mr. Williams:
Q. Mr. Moss, what do you think this friction would in­

volve? A. I think there would be some bloodshed, fights 
maybe.

Q. You think there would be some bloodshed? A. Yes.
Q. Well, do you think there is sufficient police and law- 

enforcement authorities in Davidson County to handle any 
breaches of the peace? A. Well, they might handle it on 
one school or a small number, but—

Q. Yes, sir. They could be handled very well on one 
school, couldn’t they? A. I don’t see how we can enter

— 122—

these two children without entering others. Our Board 
works on a policy that all have the same right.

Q. Well, if the Court required you to enter these two 
and directed that, for the time being, no others would be 
admitted pending your submission of a complete plan, then 
that could be done, couldn’t it, Mr. Moss? A. We would 
try, if the Court says that, of course.

Q. You have been willing for six years to try anything 
that you were ordered to do, haven’t you? A. My Board 
of Education tells me what to do.

#  #  #  *  #

J. E. Moss—for Plaintiffs—Recalled—Further Cross



61a

Order

Filed: October 7,1960

This cause came on to be heard the 26th day of Septem­
ber, 1960 before the Honorable William E. Miller, District 
Judge, on the entire record and especially upon the mo­
tions tiled by defendants to dismiss and to strike certain 
portions of the complaint, the affidavits and exhibits filed 
with said motions, the testimony of witnesses heard in open 
court, and upon argument and statements of counsel there­
on, from all of which the Court finds, holds and orders as 
follows:

1. The first ground of the motion to dismiss relating 
to omission of notarial seal on the verification of the com­
plaint is well taken, but the notary public being Avon N. 
Williams, Jr., one of the attorneys for plaintiffs, who stated 
to the Court in open court that omission of said seal was 
inadvertent, therefore, upon application of said attorney, 
the complaint was and is hereby allowed to be amended, 
and said defect cured, by said attorney affixing his official 
notarial seal forthwith to the verification on the original 
complaint filed in this cause.

2. All other grounds of defendants’ said motion to dis­
miss, except the fourth ground thereof, are not well taken 
and should be and the same are hereby overruled.

3. It is unnecessary at this time to rule upon the said 
fourth ground of defendants’ motion to dismiss and upon 
their motion to strike certain portions of the complaint; 
and the Court therefore reserves judgment upon said 
matters.

(Seal)

October 7, 1960 Vol. #24  Page 2



62a

Order of October 7,1960

Thereupon the cause came on to be further heard by the 
Court upon the verified complaint as amended, the motions 
filed by the plaintiffs for a temporary restraining order and 
preliminary injunction against the defendants, the order 
heretofore entered by the Court directing the defendants 
to appear and show cause why said temporary restraining 
order and/or preliminary injunction should not issue, the 
testimony of witnesses heard in open court, the statements 
and argument of counsel, and the entire record, from all of 
which the Court finds, holds and orders as follows:

1. That action by the Court upon the motions of plaintiffs 
for temporary restraining order and/or preliminary in­
junction against the defendants, should be and the same 
is withheld at this time.

2. That the defendants should be and they are hereby 
directed to file with the Court, not later than October 19, 
1960, a complete and substantial plan which will accom­
plish complete desegregation of the public school system of 
Davidson County, Tennessee in compliance with the re­
quirement of the Fourteenth Amendment to the Constitu­
tion of the United States.

3. The plaintiffs will be furnished by defendants with a 
copy of said plan, and may file any objections thereto not 
later than October 21, 1960; and hearing on such objec­
tions will be held before this Court at 9 :00 A.M. on October 
24,1960.



63a

Order of October 7,1960

The plaintiffs except to the action of the Court in with­
holding action on their motions for temporary restraining 
order and preliminary injunction.

W m. E. M iller

District Judge

Approved as to form :

Z. A lexander L ooby 
A von N. W illiams, Jr.

Some of Attorneys for Plaintiffs

S helton L uton 
H arlan D odson, Jr.

Attorneys for Defendants

Attest: A True Copy

John O. A nderson, Clerk 
IT. S. District Court 
Middle District of Tennessee

By K. D. H ace D. C.

(Seal)

October 7, 1960 Yol. #24  Page 3



64a

Report of the County Board of Education of 
Davidson County, Tennessee

Filed: October 19,1960

The defendants herein file this report pursuant to the 
order of this Court of September 26, 1960:

1. The defendant, County Board of Education of David­
son County, Tennessee, appointed a special committee of 
its membership, to-wit, Ferris C. Bailey, Frank White and 
S. L. Wright, Jr., to work in conjunction with the staff 
of said Board of Education in compiling a complete and 
substantial plan to accomplish complete desegregation of 
the public schools system of Davidson County, Tennessee; 
and this said committee, in conjunction with the staff, made 
such study, compiled such plan and presented the same to 
the County Board of Education of Davidson County, Ten­
nessee, on October 18, 1960.

2. After due consideration, the said County Board of 
Education of Davidson County, Tennessee, adopted said 
plan as presented by its special committee on October 18, 
1960, and presents the same to this Honorable Court as its 
plan, in compliance with the order of this Court.

3. A copy of said report as adopted by the County 
Board of Education of Davidson County, Tennessee, is at­
tached herewith as Exhibit A  to this report and made a 
part hereof just the same as if fully copied therein.

Shelton L uton 
County Attorney for 
Davidson County, Tennessee 

Davidson County Courthouse 
Nashville 3, Tennessee

H arlan D odson, Jr.
1106 Nashville Trust Building 

Nashville 3, Tennessee

Attorneys for Defendants



65a

EXHIBIT “ A ” TO REPORT OF BOARD

R eport op the Special Committee op the D avidson 
County B oard op E ducation

The special committee of the Davidson County Board 
of Education appointed to study and present to the Board 
a feasible plan for the orderly integration of the public 
schools of Davidson County, Tennessee, under the juris­
diction of the Davidson County Board of Education makes 
the following report:

1. This committee has consulted with the members of 
the staff who have made available to it all the research 
data which they were able to accumulate within the time 
allowed. In addition, the members of the committee, as 
well as the members of the staff, both since the date of 
the hearing in the United States District Court and prior 
thereto, have discussed with parents and teachers various 
approaches which might be made to the problem. Further, 
your committee has met with and consulted with its legal 
counsel and discussed with its legal counsel all various 
possible plans for such integration.

2. Among other plans which the committee has con­
sidered is the so-called Nashville Plan, which to date has 
worked with a minimum of difficulties since being approved 
by the United States District Court for the Middle District 
of Tennessee. The Nashville Plan has likewise been ap­
proved in other courts and other communities where it has 
been employed. Other plans calling for more expeditious 
integration, or integration at higher levels at the com­
mencement of the plan, have resulted in community dis­
turbances, disciplinary problems, property loss and multiple 
administrative difficulties. This committee from its study 
has recognized that in many respects the problem of effec-



66a

tuating a satisfactory plan is more difficult in the David­
son County school system than it was in the school system 
of the City of Nashville. Some of the factors which bring 
this about are that in the City of Nashville there was a 
great concentration of Negro population around the schools 
in the City of Nashville serving only Negroes prior to the 
adoption of the plan, whereas in Davidson County the vari­
ous areas primarily populated by Negroes are greatly scat­
tered and are not necessarily located near to a school which 
has been used for the purpose of serving only Negro stu­
dents in the past. As a result of this factor, a greater per­
centage of the schools of the Davidson County system will 
be affected than was true in the City of Nashville system.

Another highly important factor which makes the prob­
lem more difficult in the County system than in the system 
of the City of Nashville is the fact that there has been a 
tremendous increase of the school population in Davidson 
County over the past several years, with the result that 
all or practically all of the facilities in the County sys­
tem are crowded or overcrowded and more than 70 portable 
buildings are presently in use in order to accommodate the 
pupil population; even though several new schools have 
been opened each year for a period of fifteen years. Such 
a situation was not true in the City system at the time 
an attempt was made to integrate the schools so that the 
assignment of students was not complicated by the lack of 
physical facilities. Similarly, the teacher load in the County 
system in all of the schools is at a peak, which situation was 
not true in the City system, and this further complicates 
the assignment of pupils.

The County school system has operated a transportation 
system for all students living as much as IVi miles away 
from the school attended. Such has never been true in the

Exhibit “A ” to Report of Board



67a

City system. Most of the buses operating in the County 
transportation system are presently operating at peak 
capacity, with the buses averaging about three trips per 
day. The bus driver is charged with the responsibility, not 
only of driving the bus safely in crowded traffic, but of see­
ing to the safety of the students as they enter or are dis­
charged from the bus, and likewise is charged with all 
discipline on the bus. Any factor which creates a greater dis­
ciplinary problem makes more hazardous the operation of 
the bus by the one driver and thus the problem of transi­
tion from a segregated to an integrated system is further 
complicated in the County system.

Your committee also gave consideration to the emo­
tional impact upon the children of both races and concluded 
from its observations, studies and contacts with others that 
the emotional impact would be greater upon the pupils 
of both races in the County system than it was in the City 
system because in the City the two races have lived closer 
together and been associated together because of such 
proximity of residences than was true in the County, where 
the population is scattered.

In spite of the various factors making it more difficult 
to apply the Nashville Plan in the County system, your 
committee after giving consideration to all possible plans, 
concluded that such was probably the only plan which 
would work. Such a plan would permit the young students 
to adjust themselves to one another at an age where there 
is no resentment or little resentment. Discipline is a greater 
problem with older children in any case and to begin at 
higher grade levels than the first grade would cause disci­
plinary problems difficult of solution and probably would 
even lead to violence. Further, since transportation is in­
volved in the County system, there ’would be less chance

Exhibit “A ” to Report of Board



68a

of disturbance on the school buses with the first grade 
students than with older children while in route to and 
from school, and this would permit the bus driver, who has 
the great responsibility of watching out for the safety of 
the students while loading and unloading and also coping 
with the traffic problems that face him on the crowded 
highways, to be required to devote less time as a peace 
officer while attempting to carry out the other duties.

Your committee further gave consideration and made 
study of when the plan should be commenced and con­
cluded, based upon all factors, that certainly it should not 
commence prior to September 1, 1961. The school system 
is now approximately two months under way in the 1960-61 
school year and is operating on a segregated plan, as it 
has historically done. Any change of organization or plan 
at this time would cause confusion and disruption of classes, 
together with a loss of valuable teaching time. In addition, 
it is the policy of the system not to force first grade stu­
dents to change schools, even after the first month of the 
term, although the family moves the residence to another 
zone because of the emotional impact of changing schools 
during a school year, which fact has even been recognized 
by the Legislature of the State, and frequently recognized 
by the school personnel and the parents in cases not involv­
ing the segregation question. In addition, the change to 
an integrated system will necessarily cause some anxiety 
on the part of parents and students and a period of several 
months will be needed to institute a program of orientation 
to this change.

From a study of the situation in the City of Nashville 
and elsewhere, it has been found that under the plan re­
quests for transfer are to be anticipated, which requests 
require time to screen and process, and this can be done

Exhibit “A” to Report of Board



69a

more efficiently and in less time and with less confusion be­
tween the Spring registration and the beginning of the 
Fall Term in September of 1961.

Two other factors in this connection were considered of 
major importance. One was that the school at Bordeaux, 
one of the schools where Negro children made application 
for enrollment, has since been destroyed by fire, and the 
community is being cared for in a makeshift way until a new 
building can be constructed. This is an additional burden 
on the physical facilities of the system, including the trans­
portation system, during this emergency period. The An­
tioch School, at which application has been made, is the 
most overcrowded school in the entire system, and at this 
time the addition of other students to that school would for 
all practical purposes be a physical impossibility. This com­
mittee gave consideration to the fact that the children who 
are applying are not the victims of hardship because the 
time consumed in traveling to Antioch by bus is as much 
as the time consumed presently by such applicants in going 
to Haynes High School because of the necessary stops made 
on the Antioch route, whereas the bus makes fewer stops 
and follows a more direct route to Haynes School.

Considering all of these factors, your committee recom­
mends the following plan:

Exhibit “A ” to Report of Board

P L A N

1. Compulsory segregation based on race is abolished in 
Grade One of the Davidson County Schools for the 
scholastic year beginning in September 1961, and 
thereafter for one additional grade beginning with 
each subsequent school year, i.e., for Grade Two in 
September 1962, Grade Three in September 1963, 
Grade Four in September 1964, etc.



70a

2. A plan of school zoning based upon location of school 
buildings, transportation facilities and the most re­
cent scholastic census, without reference to race, will 
be established for the administration of the first grade, 
and other grades as they are desegregated according 
to the gradual plan.

3. Students entering the first grade will be permitted to 
attend the school designated for the zone in which he 
or she resides, subject to regulations that may become 
necessary in particular cases.

4. Application for transfer of first grade students, and 
subsequent grades according to the gradual plan, from 
the school of their zone to another school will be given 
careful consideration and will be granted when made 
in writing by parents, guardians, or those acting in 
the position of parents, when good cause therefor is /  
shown and when transfer is practicable and consistent 
with sound school administration.

5. The following will be regarded as some of the valid 
conditions for requesting transfer :

a. When a white student would otherwise be required 
to attend a school previously serving colored stu­
dents only.

b. When a colored student would otherwise be re­
quired to attend a school previously serving white 
students only.

c. When a student would otherwise be required to 
attend a school where the majority of students in 
that school, or in his or her grade, are of a different 
race.

Exhibit “A ” to Report of Board



71a

6. A plan of pupil registration to be held each Spring 
to aid in formulating necessary arrangements for the 
opening of schools in the Fall, such as available room, 
teaching aids, textbooks, pupil immunizations, zoning, 
and transportation facilities, will be continued.*

7. Transportation will be provided to all students that 
are eligible for bus service.*

Exhibit “A ”  to Report of Board

This has been done for years.



72a

Filed: October 21,1960
The plaintiffs, Henry C. Maxwell, Jr., et ah, respectfully 

object to the plan filed in the above entitled cause on or 
about the 19th day of October, 1960, by the defendant, 
County Board of Education of Davidson County, Tennes­
see, and specify as grounds of objection the following:

1. That the plan does not provide for elimination of 
racial segregation in the public schools of Davidson County 
“with all deliberate speed” as required by the due process 
and equal protection clauses of the Fourteenth Amendment 
to the Constitution of the United States.

2. That the plan does not take into account the period 
of over six (6) years which have elapsed during which the 
defendant, County Board of Education of Davidson Coun­
ty, has completely failed, neglected and refused to comply 
with the said requirements of the due process and equal 
protection clauses of the Fourteenth Amendment to the 
Constitution of the United States.

3. That the additional twelve (12) year period provided 
in said plan is not shown to be “necessary in the public 
interest” and “ consistent with good faith compliance at the 
earliest practicable date” in accordance with the said re­
quirement of the due process and equal protection clauses 
of the Fourteenth Amendment to the Constitution of the 
United States.

4. That the defendants have not carried their burden of 
showing any substantial problems related to public school 
administration arising from:

S pecification  o f  O b jection s to P lan  F iled  by  County
B oard  o f  E du cation  o f  D avid son  County



73a

a) “ the physical condition of the school plant” ;

b) “ the school transportation system” ;

c) “ personnel” ;

d) “revision of school districts and attendance areas 
into compact units to achieve a system of determining- 
admission to the public schools on a nonraeial basis” ;

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

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

5. That the plan is manifestly a substantially exact copy 
of the “ Nashville Plan” adopted by defendants without 
reference to the local conditions in Davidson County as a 
minimum plan predicated on subjective and mental fears 
of the defendants as to possible community hostility or 
friction among students, and is not supported by a showing 
of any objective administrative conditions or problems 
which legally justify its complete deprivation of the con­
stitutional rights of plaintiffs and all other children now 
in school to an integrated education by projecting the bar 
of segregation into the next twelve years.

6. That the plan forever deprives the infant plaintiffs 
and all other Negro children now enrolled in the public 
schools of Davidson County, of their rights to a racially

Specification of Objections to Plan Filed by
County Board of Education of Davidson County



74a

unsegregated public education, and for this reason violates 
the due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United States.

7. That the plan wholly ignores and fails to comply 
with the statement of this Court from the Bench on 26 
September, 1960, holding that the individual plaintiffs 
“ have been denied their constitutional and legal rights” , 
and suggesting that they be accorded these rights by defen­
dants voluntarily rather than by court order, in that under 
the plan the individual plaintiffs can never be admitted to 
an integrated school and are forever deprived of their 
rights to a racially integrated public education in Davidson 
County.

8. That the plan fails to take into account recent an­
nexation by the City of Nashville of a large area of sur­
rounding Davidson County resulting in the public schools 
of said County becoming a part of the City of Nashville 
School System, which latter School System is now desegre­
gated from the first through the fourth grades.

9. That the plan fails to take into account the rights of 
the infant plaintiffs and other Negro children similarly 
situated and forever deprives them of their rights to enroll 
in and attend any technical or other special or vocational 
schools, summer courses and educational training of a 
specialized nature as to which enrollment is not based on 
location of residence.

10. Paragraph five (5) of the plan violates the due 
process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States in that

Specification of Objections to Plan Filed by
County Board of Education of Davidson County



75a

said paragraph provides racial factors as valid conditions 
to support requests for transfer, and further in that the 
racial factors therein provided are manifestly designed 
and necessarily operate to perpetuate racial segregation.

11. That the plan contemplates continued maintenance 
and operation by defendants of “ Negro” and “white” 
schools substantially designated bj7 race, in violation of the 
due process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States, in 
that it fails to make any provision for the reorganization 
of the entire County School System into a unitary, non- 
racial school system so as to include a plan for the assign­
ment of teachers, principals and other school personnel, as 
well as school children, on a nonracial basis; for the allot­
ment of funds, construction of schools and approval of 
budgets on a nonracial basis; and for the elimination of all 
other discriminations in the operation of the school system 
or in the school curriculum which are based solely on race 
and color.

W herefore, the plaintiffs pray:

1. That the Court grant their motions for temporary re­
straining order and preliminary injunction so as to require 
the immediate admission by defendants of the individual 
plaintiffs to the public schools of Davidson County, Ten­
nessee on an unsegregated basis.

2. That the declaratory and permanent injunctive relief 
prayed for in their complaint be granted, said injunctive 
relief to be effective not later than the beginning of the 
Spring Semester or Term of the public schools of Davidson 
County in January, 1961.

Specification of Objections to Plan Filed by
County Board of Education of Davidson County



76a

3. That the defendants be required by the Court to re­
organize the entire County School System of Davidson 
County, Tennessee into a unitary nonracial school system, 
including all of the matters prayed for in the sixth prayer 
of the complaint filed in this cause.

Respectfully submitted,

Z. A lexander L ooby and 
A von N. W illiams, Jr.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall and 
Jack Greenberg 

10 Columbus Circle 
Suite 1790

New York 19, New York

Attorneys\ for Plaintiffs

Specification of Objections to Plan Filed by
County Board of Education of Davidson County



77a

Excerpts From Transcript of Hearing, 
October 24, 1960
# * # * *

—30—

J. E. Moss, called as a witness in behalf of the defen­
dants, being first duly sworn, was examined and testified 
as follows:

Direct Examination : JL. 42. .££.TT w •?> "Jv* 'Tt'

—53—

By the Court:

Q. How many colored students are there? A. Twenty- 
four hundred roughly.

Q. As compared with how many Whites ? A. It's 47,000
- 5 4 -

all together. That would be about 45,000 Whites.
Q. About 45,000.

By Mr. Dodson:

Q. It constitutes approximately what per cent? A. Five 
per cent; five per cent Negro.

By the Court:

Q. And how many Colored schools? A. Seven Negro 
schools.

^  ^

— 68—

# * # * *

Cross Examination by Mr. Williams:

Q. Mr. Moss, if the Court were to order the Board to 
adopt a nonracial school zone plan in Davidson County 
immediately—



78a

Mr. Dodson: I didn’t get the first part of that 
question.

By Mr. Williams:

Q. If the Court were to order the Board to adopt a non- 
racial school zoning and attendance plan in Davidson 
County immediately, would you please tell me, sir, how 
many Negro students would be assigned to what schools 
that have been formerly white? A. If there were complete 
desegregation?

Q. Yes, sir. A. I believe that’s something more than 
40 schools and would involve more than a thousand stu­
dents.

Q. No, what I am asking you, sir, is— A. All right.
Q. —what schools would have how many Negro pupils 

and how many White pupils ? A. Let me answer that this 
way: If we integrated the first grade, there would be about

- e o -
os. If we go four grades, there would be 350. If we went 
all grades, there would be a thousand and something. Now, 
I couldn’t tell you, Mr. Williams, how many White children 
and Colored children would be in each zone, because I don’t 
even know how much is in each school now. I can’t carry 
those figures in my mind.

Q. Well, what I am asking you, sir, is this: Does the 
Board have any information available to it as to how many 
Negro students will be in any one of those 40 schools? 
A. Oh, yes, sir.

Q. Where is that information, sir? A. The boys that 
are coming up on attendance will have that.

Q. They will furnish that information as to how many 
Negroes there will be in each school? A. Yes. They can 
tell you how many are eligible to go to each school.

J. E. Moss—for Defendants—Cross



79a

Q. But you do not know that yourself! A. If you will 
give me time to look at my figures, I can work it out, but 
I don’t have it from memory where I could quote it.

Q. Well, sir, can you give me this information: What is 
the largest number of Negroes who would be in any one 
of those 40 schools under total integration. A. Total in­
tegration. Well, I judge that would be— Cumberland High

—7 0 -
School, I expect would have the largest number.

Q. That is out in Bordeaux! A. That’s near Bordeaux, 
yes.

Q. And approximately what would that number be, sir! 
A. There is about 800 there now. It would go up above a 
thousand.

Q. You would think there would be 200 Negro pupils 
in Cumberland High School! A. I wouldn’t be surprised 
if there wouldn’t be that many.

Q. That is just a guess on your part! A. That is an 
estimate, and of course I could—-

Q. And your figures that your attendance— A. I think 
our attendance people could give you a better answer on 
that, if you will wait.

Q. All right, sir. But if you integrated four grades, you’d 
just have 350 Negro pupils who would be eligible for in­
tegration among 40 schools! A. That’s correct.

Q. An average of less than ten children per school! A. 
That’s correct.

*  #  #  #  #

—107—
# # * * *

Q. All right. Now, Mr. Moss, what schools have been 
built in the county in the past five years! A. Which—

J. E. Moss—for Defendants—Cross



80a

Q. What schools? A. What schools in the last five 
years?

Q. Yes. A. Are you talking about White schools, now, 
or Colored?

Q. I would like to have the White ones and the Negro
- 1 0 8 -

schools. A. In the last five years?
Q. Yes, sir. A. That would be impossible to give it to 

you accurately, because we built about—I can give you 
the five we built last year. Gra-Mar—

Q. Gra-Mar? A. And King’s Lane.
Q. King’s Lane. A. Two Rivers.
Q. Two Rivers. A. West Meade.
Q. West Meade. A. And the fifth one— And a school 

we call Norman Binkley now.
Q. Norman Binkley. All right, sir. How expensive were 

they? How much did Gra-Mar cost, roughly? A. All of 
them cost around $200,000, except Two Rivers, which cost 
about $600,000.

Q. $600,000. All right, sir. And they were all built last 
year? A. (The witness did not reply, but nodded his 
head.)

Q. When were they started? A. They— We entered 
them the first time this fall, and they were started about 
August or September of last year.

—109—
Q. August or September of ’59, and they were entered 

September ’60. Is that correct, sir? A. That’s correct. 
That’s approximately correct. I am not—I can’t remember 
the exact date.

Q. I believe you employed new teaching staffs for those 
schools, or did you, sir? A. Yes.

Q. How many teachers were involved in that? A. This 
is an estimate.

J. E. Moss—for Defendants■—Cross



81a

Q. It’s subject to correction. If you subsequently want 
to submit a written list or brochure showing* the accurate 
figures, that’s all right with me, sir. A. Well, there’d be 
somewhere between 8 and 10 in the four schools. The four 
schools were elementary. Two Rivers is the only high 
school. That had about—approximately-—started off with 
about 15 teachers.

Q. And 8 or 10 each in the others ! A. In that neighbor­
hood, 8, 9, or 10 or something in that proximity.

Q. I take it you have built several other White schools 
since 1955, have you not, sir! A. Yes, and we have built 
some Negro schools, too, sir.

Q. I am going to get to that. Approximately how many 
White schools other than these five that you built last year

— 110—

would you say you built since 1955! A. Well, we—I 
couldn’t give you those by memory. I ’m afraid I might be 
wrong.

Q. Approximately, sir. A. We built three or four each 
year.

Q. Built three or four schools each year! A. Yes.
Q. Three or four White schools each year! A. Well, 

three or four schools. We—
Q. Three or four schools! A. Year before last I think 

we had two Negro schools.
Q. All right, sir. Now, how many Negro schools have 

you built since 1955! A. Well, I believe two is all we have 
built in the last five years.

Q. What two was that! A. In the last 12 years, we 
have built all of them except a portion of Haynes and Early.

Q. What are the two that you have built in the past five 
years, sir! A. Bellevue and Charles S. Johnson.

^

J. E. Moss—for Defendants—Cross



82a

J. E. Moss—for Defendants—Cross

—114—

Q. Now, Mr. Moss, you stated yesterday on direct exam­
ination that the White people had been leaving the city and 
coming to the county and that this made the schools over­
crowded. Is that correct, sir? A. That is right,

Q. So that the Board has now taken the position that 
White children who leave the city and come to the county 
are entitled to crowd out Negro children who have been 
living in the county all their lives ? Is that the position you 
are taking, sir ? A. Oh, no. We—

Q. Is it your defense for the admission of these six 
plaintiffs that Antioch and Bordeaux are overcrowded?

— 115—
A. Well, they are very crowded situations, yes.

Q. And no doubt they contain some of the White people 
who have been fleeing integration in the city. Isn’t that 
true, sir? A. These six children would not be the prob­
lem. We can accept those six children as far as room is 
concerned.

Q. I am glad to hear that, sir. A. But, under our policy, 
we can’t accept two ninth-graders or two any other grade 
without accepting all the others that come.

Q. Mr. Moss, if the Court ordered you to, you could, 
couldn’t you? A. W e’d try our best.

—116—
# # # # #

Q. So that wouldn’t it be true, Mr. Moss, that you would
—117—

eliminate some of your transportation problems, at least 
with regard to Negro children if they were permitted to 
attend the White school right there in their neighborhood,



83a

rather than travel to the consolidated school? A. There 
would be some transportation saved.

Q. There would be quite a bit of that, wouldn’t there? 
A. We would lose, though, in other areas.

Q. In what areas, Mr. Moss? A. Well, we, for instance, 
would have a lot of vacant rooms if all of the Negro chil­
dren elected to go to the nearest school. There would be 
some vacant rooms. Quite a few.

Q. There would be some vacant rooms in the Negro 
schools? A. Yes. That’s the reason we are asking for a 
gradual plan, Mr. Williams.

Q. And this has been occasioned by your pqlicy of con­
tinued building of schools in an attempt to serve the Negro 
population on the one hand and the White population on 
the other? That’s correct, isn’t it? A. That is right.

Q. And that was continued following the Supreme Court 
decision. You have built at least two schools and possibly 
three, by your own testimony since that time? A. Two is

—1 1 8 -
all I am sure about.

Q. Negro schools. A. And that’s when the people came 
in and asked us to build them, and they didn’t want to 
integrate.

Q. You have built more than five White ones, though, 
since that time ? A. Yes.

Q. You say you built these schools because the people 
came in and asked you to build them? Sir? A. Yes, sir.

Q. But you knew at that time about the Supreme Court 
decision, did you not? A. Yes.

Q. And you knew that if a single Negro child wanted 
to attend an integrated school that some arrangements 
would have to be made, did you not, sir? A. Yes.

J. E. Moss—for Defendants—Cross



84a

Q. And yet you continued building segregated schools! 
A. We built the two small ones, yes. I would like to say 
this in our defense, that those schools can be used as the 
community grows.

Q. Yes, sir, but they weren’t built for maximum use in a 
county school system which is operated without regard to 
race or color? That is true, isn’t it? They were built for 
maximum use under a segregated system? A. Yes.

— 119—
Q. And this was going on while the Board knew that it 

had told the Negro community that it was trying to work 
this matter out to comply with the Supreme Court decision? 
Is that correct, sir? A. Mr. Williams, we work for the 
people, and we have to go along with them. You can only
go as fast as the people will go with you.

 ̂ ^
— 135—

# # # # *
Q. Mr. Moss, with regard to spring registration, don’t 

you have transfers during the year? A. Yes.
Q. How many transfers would you say you have had 

since school began? A. I couldn’t even estimate that. We 
have had several.

Q. You couldn’t even estimate it? A. We have had sev­
eral, of course.

Q. It doesn’t throw the whole school system into an 
uproar when you have those transfers, does it, sir? A. 
Well, it’s some disorder, but it doesn’t throw the whole 
system out of kilter, no.

Q. It isn’t the reason why you should stop the school 
system for 12 years until we get these transfers done? 
A. We have been on a plan of registration in the spring, 
and if we have any large amount of registration any other

J. E. Moss—for Defendants—Cross



85a

time it involves a lot of time and breaking into the program 
and schedules, and so forth.

Q. But you don’t stop the school system and send any 
children home to wait for 12 years so you can get these 
transfers effected, do you? A. We have never sent any

- 1 3 6 -
child home for 12 years; no, sir.

Q. You don’t send them home for as much as a week 
so you can get a transfer effected, do you, Mr. Moss? A. 
I f  a child moves in here from out of the county or out of the 
state, of course, we have to accept his transfer.

Q. But what I am talking about is this: If a child at 
Gra-Mar, for example, wants to transfer to another White 
school in the county, he doesn’t have to wait for a month in 
order to get that transfer effected, does he? A. His rec­
ords will be sent— He will tell a school where he is, and his 
records will be sent— A  list of names will be sent to the 
school he is going to transfer to in the spring.

Q. Yes, s ir ; but if he wants to transfer in the middle of 
the year, he doesn’t have to wait a month. If he has a sound 
administrative reason for that transfer, he doesn’t have 
to wait a month for that transfer? A. No.

Q. Not even as much as a week? A. Oh, no. No.
Q. He can do it right away, can’t he? A. Yes.

* # # * #
—137—

# * # # #
Q. As a matter of fact, Mr. Maxwell was so concerned 

that he came to your office several times on the day that you
—138—

had set aside for transfers, or before that time, in an 
effort to try to get some satisfaction out of you on that

J. E. Moss—for Defendants—Cross



86a

question. Isn’t that true? A. He only came once to see 
me, to my knowledge, about entering the schools.

Q. And there is no question but that September the sec­
ond was the day set aside for pupils who wanted to trans­
fer in the county school system? A. As far as the date is 
concerned, we could have accepted those two children then, 
yes.

Q. Yes. And— A. But we have a general plan of regis­
tering in the spring that we like to follow.

Q. Yes, sir, but wasn’t it published in the newspaper at 
your behest that September second would be the day for 
transfers? A. Yes.

Q. What is the condition of Glencliff School with refer­
ence to overcrowding or undercrowding? A. It’s crowded 
but not as much so as Antioch.

Q. You have room over there for transfer students. If 
you had a White student who wanted to transfer from 
another school, room could be made for him over there? A. 
One or two students would make but little difference. That’s 
right.

—139—
Q. As a matter of fact, do you know that Reverend and 

Mrs. Maxwell’s children were actually accepted over there 
and registered by the principal before this question came 
up about zoning? A. No.

Q. You didn’t know that? A. They went to the school 
and the principal took their names, but I don’t believe he 
actually—

Q. Do you know that they live closer to Grlencliff than 
they do to Antioch, Mr. Moss, or substantially the same 
distance, anyway? A. Not much difference.

Q. And there is no reason why they couldn’t go to Glen- 
cliff if they were White students? A. No, they couldn’t go 
to Glencliff where they live, if White.

J. E. Moss—for Defendants—•Cross



87a

Q. If they were White students, would they go to An­
tioch? A. I f  they were White, they would go to Antioch, 
yes.

Q. Regardless of how much the walls are bulging over 
there (I think that was the expression used), they.would 
go to Antioch? A. (The witness nodded his head in re­
sponse.)

Q. Well, that’s self-evident. A. Unless there was some
— 1 4 0 -

special reason, then we would let them go to—
Q. Well, if, as a matter of fact, what you all have said 

were true and it were just physically impossible for them 
to go to Antioch, then you would send them to Gleneliff if 
they were White children? A. No, not— Let me clear that. 
Sometimes a subject offered at one school is not offered (in 
high school) in another, and we permit them to go on that 
basis.

Q. Oh, then, what you are saying is that under the policy 
of the Board, it would not send them to Gleneliff, it would 
make room for them at Antioch. Is that it? A. Two chil­
dren out of 1400 or 1200 is not a large number.

Q. You would make room for them. All right. A. But 
we can’t accept two without accepting all the rest in that 
same class.

Q. When was the Bordeaux School burned down— I 
mean partially burned? A. Let’s see. That exact date I 
could not give.

Q. It was about September the 8th? A. Somewhere 
around the early part of September.

Q. Yes, sir. Now, how many classes do you have operat­
ing in the two classrooms that remain and the cafeteria 
now? A. Let’s see. I believe there are two classes in the

J. E. Moss—for Defendants—Cross



88a

J. E. Moss—for Defendants—Cross

—1 4 1 -
remnants of the Bordeaux building, and I believe there’s 
about two in the church next door.

Q. And you all had approximately how many students 
in that school, Mr. Moss? A. There was approximately 
500 when it burned.

Q. And 20 rooms? A. Something in that proximity, may­
be 18.

Q. And approximately 20 teachers? A. Yes.
Q. Sir? A. Eighteen or 20 teachers.
Q. And you made arrangements to accommodate those 

children at various places, at other schools— A. That’s 
correct.

Q. —a church next door, at what remained of the school; 
and I take it this was done with regard to their residence? 
In other words, the children who lived closest to Bordeaux 
School were the ones which were retained in the school and 
in the church next door, I would assume? A. Yes, sir.

Q. The children who lived closest to King’s Lane were 
those who were sent over there, et cetera? A. That is cor­
rect.

Q. And arrangements had to be made, I suppose, with 
these church people to use the church facilities? A. That

—142—
is correct.

Q. Arrangements had to be made to transfer these stu­
dents to King’s Lane and to the other schools where you 
sent them. Is that correct, sir? A. Yes, sir.

Q. Arrangements also had to be made to transfer teach­
ers to these schools? A. Yes, sir.

Q. To arrange the physical facilities to accommodate 
them? A. That’s correct.



89a

Q. I presume that you may have had achievement-level 
problems in grouping these children when they got to these 
schools where they had never been before so as to fit them 
into the curriculum of that school! A. That’s possible.

Q. How long did it take to do that! A. It seems to me 
that the school burned on Wednesday night or Thursday, 
and we had them pretty well in school by the first of the 
week.

Q. Four days! A. Four days, yes. But that doesn’t mean 
that they were all settled down and organized. It just means 
that we had them at the schools and ready to reorganize and 
re-plan and re—

—143—
Q. There may have been a little emotional instability as 

in the case of this little Negro child in the integrated school 
in the City that you were talking about yesterday! A. 
Children always have some emotional disturbance when 
they move, yes.

Q. Yes, but they will settle down, they are probably most 
of them over that now! Wouldn’t you say that! A. They 
will get over it if they aren’t.

Q. Yes, they will get over it. It won’t have a lasting per­
manent effect on their educational progress, will it! A. I 
hope not.

Q. As an educator, do you think it will! A. I think that 
they will forget all about it in time.

# # # # #

—144—
* # # # #

Q. And you were able to do it! Now, Mr. Moss, are you 
familiar with the National Defense Education Act of 1958!

J. E. Moss—for Defendants—Cross

Mr. Dodson: What!



90a

Mr. Williams: National Defense Education Act of 
1958—

By Mr. Williams:
Q. —providing for Government aid to schools to enable 

them to enrich and up-grade their programs in science, 
mathematics, and foreign languages? A. Yes.

Q. In Title III of that Act, and then they had various 
other titles dealing with vocational education. A. I know 
what you are talking about; yes, sir.

Q. Has the county taken advantage of that at all? A. 
Yes, sir.

Q. Has the County submitted projects? A. Yes, sir.
Q. Are you familiar with the projects that the County 

has submitted under that Act? A. Yes, sir.
Q. What projects have they submitted?

The Court: Let’s see, now, what bearing does this
- 1 4 5 -

have on this case?
Mr. Williams: If Your Honor please, this, in 

effect, defeats my purpose to have to explain it, but 
I will explain it, since Your Honor is interested in it.

The Court: I am not interested in it unless it 
bears on this case.

Mr. Williams: It does bear on this case. I will 
state that to Your Honor. I am trying to show what 
the County School System has done in terms of de­
veloping—this desegregation, in effect, constitutes a 
development of the County School System, if Your 
Honor please.

The Court: Yes.

J. E. Moss—for Defendants—Cross



91a

Mr. Williams: And they are asking for time,' if 
Your Honor please. They are talking about admin­
istrative problems. Now, I am trying to find out 
how much time they have taken to deal with other 
administrative problems.

The Court: I don’t think that is relevant at all.
That is entirely different. You would have to in­
vestigate different factors. That would be, in effect, 
trying another lawsuit. What they did under some 
act of Congress that would up-grade all schools, it 
has nothing to do with segregation or integration.

#  #  #  #  *  _______------
—157—

# # # * #
Q. That under this provision in paragraph 5 of the plan, V1-

—1 5 8 -
setting forth these racial conditions based on a minority- 
race transfer, the effect of it is to permit a child to choose 
segregation outside of his zone but not to choose integra­
tion outside of his zone! That is true, isn’t it? A. The 
child and his parents can choose, yes.

The Court: Is this identical to the City’s provi­
sion?

The Witness: I think so.
Mr. Dodson: Verbatim.
Mr. Williams: It is substantially identical to the 

City provision, if Your Honor please, but it was 
not brought to this Court’s attention at the time that 
the City provision was approved, exactly how the 
City provision operates, as Mr. Moss has described.
It has been operated so that instead of going to the 
school in his zone and there seeking a transfer, no

J. E. Moss—for Defendants-—Cross



92a

White child in the City has ever seen one of the al­
legedly integrated schools to which he was assigned, 
no Negro child who didn’t affirmatively seek a trans­
fer to an integrated school has ever seen the inte­
grated school to which the Nashville Board led this 
Court to believe he was assigned. So that this pre­
sents a little different, a little more than was before 
the Court in that case.

The Court: All right, go ahead.
— 159—

By Mr. Williams:

Q. And that is true, what I have stated, isn’t it, Mr. 
Moss! That’s the way the plan operates in the City and 
that’s the way you intend to operate it! A. That is correct. 

* # # # #

— 160—

* * # * *
Q. Now, you have testified that if you integrated the 

first grade, you’d have 98, or 98 Negroes as against some 
50,000 Whites! A. Forty-five thousand.

Q. Forty-five thousand, all right. If you integrated all 
through the fourth grade, you would have 350 as against 
this 45,000! A. That’s right.

Q. And if you integrated all the grades, you would only 
have a thousand! Is that correct! A. That is correct.

— 161—

Q- And if the experience in Nashville is valid, then, actu­
ally, if you integrated all at once, you would have less 
than a hundred Negroes spread among 40 schools in the 
county! Isn’t that true, Mr. Moss! A. First grade, yes.

Q. An average of approximately two and a half pupils in 
In the first grade, true.

J. E. Moss—for Defendants—Cross



93a

approximately half of your schools which have been White! 
A. That is correct.

Q. Yes, sir. Now, that doesn’t create any great teaching 
problem, does it! A. That would be the least problem, yes, 
that we’d have.

Q. Yes, sir, that would be the least problem. What prob­
lem would be greater than the teacher problem! A. The 
greatest problem would be to desegregate all the way, of 
course.

Q. No, sir, I mean, assuming we segregated. W e’ve got 
it segregated all the way now, based on the experience. 
A. Yes, sir.

Q. W e’ve got a hundred or less than a hundred Negro 
students in 40 schools in the County! A. Yes.

Q. I think you have got about 90-something, haven’t you! 
A. Eighty-some-odd.

—162—
Q. Eighty-some-odd. And that’s an average of approxi­

mately two and a half Negro pupils per school! A. (Nod­
ding affirmatively.)

Q. What kind of problem does that create, Mr. Moss! 
A. That would only create a problem with the parents and 
students, and I think it is a problem that we could handle.

Q. That would be a problem that you could handle! A. 
Yes.

Q. All right, sir. Mr. Moss, you don’t have any evidence 
that integration in your higher grade levels would lead to 
violence, do you! A. Not based on personal experience.

Q. Well, you don’t have any scientific evidence based on 
social studies that it would lead to violence! A. Just re­
ports I have read of other systems.

Q. Well, you read Southern School News, don’t you! 
A. I have read it.

J. E. Moss—for Defendants—Cross



94a

Q. Do you know that there are several hundred school dis­
tricts in the State of Kentucky that have been desegregated 
and they have had violence in only two of them? You know 
that? A. I didn’t know that. I didn’t have that data.

Q. You aren’t insisting that— Of all 768 school districts 
in 12 states of the South and District of Columbia which

- 1 6 3 -
have been desegregated, you aren’t insisting that there has 
been any violence in any substantial number of them? A. 
There has been substantial violence. I don’t know about 
the violence in substantial numbers.

Q. Do you know of any violence or any studies of vio­
lence in other than the first year of the Nashville case, 
the Clinton case, and the Little Eock case and a couple of 
counties up in Kentucky? A. Those would be the major 
cases I have read about.

Q. And the Little Eock case was a gradual plan of inte­
gration, wasn’t it? A. It started at the wrong end, though.

Q. Well, the Nashville case was a gradual plan starting 
at the right end, according to you? A. I think so, yes.

Q. But they had violence there? Sir? A. I don’t know 
whether the violence was because of starting with the first 
grade or not. I think not.

#  #  #  *  #

—374—
# * # # #

D r. Eugene Weinstein, a witness called on behalf of the 
plaintiffs, being first duly sworn, was examined and testified 
as follows:

Direct Examination by Mr. Williams:

Q. This is Dr. Eugene Weinstein? A. Yes.
Q. Dr. Weinstein, that speaker doesn’t operate as a loud-

Dr. Eugene Weinstein—for Plaintiffs—Direct



95a

speaker. Speak loud enough so that everybody can hear 
you. A. They will.

Q. Dr. Weinstein, you live here in Nashville, do you not? 
A. Yes, sir.

Q. How long have you been in this locality, sir? A. A 
little over two years.

Q. Where are you employed, sir? A. Vanderbilt Uni-
—375—

versity.
Q. In what capacity? A. I am Associate Professor of 

Sociology.
Q. Dr. Weinstein, where did you receive your education? 

A. I got my bachelor’s degree from the University of 
Chicago, my master’s degree from Indiana University, and 
my Ph.D. from Northwestern University in 1954.

Q. And was your Ph.D. in the field of— A. In the field 
of sociology, specializing in social psychology.

Q. Now, Dr. Weinstein, after your acquisition of a doc­
torate, did you do any further postgraduate study or re­
search? A. Research. I spent the years prior to coming 
to Vanderbilt in research and doing research in the general 
area of child development. I spent the immediate period of 
three years as a research analyst for the Children’s Bureau 
of the Department of Health, Education, and Welfare.

Q. In Chicago? A. No, in Washington.
Q. In Washington, D.C.? A. That’s right.
Q. Then I take it that you would consider yourself rea­

sonably an expert on the subject of child development?
—376—

A. Reasonably well versed, yes.
Q. Dr. Weinstein, have you done any recent study or 

a recent study on the subject of desegregation in Nashville? 
A. Yes, I have.

Dr. Eugene Weinstein—for Plaintiffs—Direct



96a

Q. Has there been any other study of the same type that 
you have done, made by any social scientists as far as you 
know? A. As far as I know, no. This is the first study of 
its kind.

Q. Will you explain, sir, just what this study was, what 
it consisted of, and what your findings were? A. That 
would take a great deal of time, as far as defining it is 
concerned.

Q. Well, if you will explain what it was and what it 
consisted of, I think I can focus the particular findings that 
we would like to bring out. A. This was a study of the 
general area of Negro attitudes and decision-making re­
garding desegregation. Roughly, the outlines of the study 
are this: given the grade-a-year plan and system of eli­
gibility under the Nashville plan, two groups of Negro 
parents are created, a group which has chosen to exercise 
their option and attend a desegregated school, a formerly 
all-White school, and a group which has the same option 
but has chosen to send their children to segregated schools, 
to the historically Negro schools.

—377—
The study was concerned with— Well, actually, there is 

a third group of parents who send their children to de­
segregated schools and then, subsequently, for one reason 
or another, withdraw them.

The study was concerned with identifying the factors 
which were related to the choice. It was concerned with 
the decision to segregate or to desegregate made by the 
involved Negro families. Some 88 families, mothers for 
the most part, were intensively interviewed in the course 
of the study.

Q. And were these findings, then, systematically accumu­
lated, analyzed, and conclusions reached on the basis of 
that? A. Yes.

Dr. Eugene Weinstein—for Plaintiffs—Direct



97a

Q. Now, Dr. Weinstein, based on— I should ask you when 
this study was made. I don’t believe you stated that. A. 
The bulk of the interviewing was done this past summer 
between the months, roughly, of about May and September. 
I  might also add that the interviewing was done not by 
myself but by a trained Negro interviewer.

Q. Why did you use a Negro interviewer, Dr. Weinstein! 
A. This is common practice in research of this kind, to use 
interviewers who are most likely to be able to establish

—3 7 8 -
rapport, get easy, frank responses from respondents. It 
has been discovered, in this area especially, that Negro 
interviewers are more effective in interviewing Negroes.

Q. Now, Dr. Weinstein, getting down to some of the 
findings of your study, with particular reference to the 
group of families who did not send their children to inte­
grated schools, will you state what your findings were with 
regard to the attitudes and the reasons of the parents for 
that? A. The single most frequent reason given, given in 
roughly 40 per cent of the cases, was the difficulty or in­
advisability or lack of willingness on the parents’ part 
to separate children. Under the grade-a-year plan they 
would have—they had older children who were not eligible 
to attend the desegregated school. In order to take ad­
vantage of the eligibility of the younger child, they would 
have to split their families, split their children and send 
them to two different schools. This was in 19. This was 
mentioned as the primary reason of 19 of the 50, or roughly 
40 per cent of the cases. It was a factor involved in roughly 
60 per cent of the cases. Twenty-nine out of the 50 would 
have to split children.

Q. And this was, then, according to your findings, the

Dr. Eugene Weinstein—for Plaintiffs—Direct



98a

Dr. Eugene Weinstein—for Plaintiffs—Direct

- 3 7 9 -
major reason? A. This was the most frequent single fac­
tor, yes.

Q. Now, with specific reference to fear of friction or of 
violence or anything of that nature, what were your findings 
with regard to that? A. For the whole sample, over 90 
per cent, for the whole sample, expected no difficulties. 
The only difficulties that were reported in the desegregated 
group were occurrences which had experiences which they 
had had in the initial weeks of desegregation back in 1957. 
In eight cases they did mention the telephone calls, the 
cars parading back and forth in front of their homes on the 
street, strange cars. Only four of the 50 desegregated— 
rather, segregated families indicated that they expected or 
could think of any groups or persons who might be out to 
make trouble for them.

Q. You mean only four out of 50? A. Only four out 
of the 50 indicated—•

Q. Of those who actually didn’t send their children? A. 
Actually didn’t, that’s right.

Fear, I would say, fear of violence or difficulty or of 
economic threat (we also asked them about losing their 
job) was a minor factor in the decision-making process.

Q. I would ask you what were the findings with regard 
to the feeling that the children would or would not do 
better in integrated schools with regard to the parents

—380—
who sent their children to integrated schools? A. Of the 
27 families who we interviewed, sent their children to inte­
grated schools, were asked the following questions. One 
of the questions they were asked was: Do you think your 
child would learn more quickly, less quickly, or about the 
same in the integrated school? Fourteen of the 27 thought



99a

that the child would learn more quickly. The rest either did 
not know or felt it would make no difference. There were 
no cases in which it was felt the child would learn more 
slowly.

Q. So that the overwhelming majority of these parents 
either felt that the child would do better in school or did not 
know? A. Or thought that it would make no difference.

Q. Or thought that it would make no difference. A. But 
the most frequent response was that.

Q. The most frequent response was, approximately half 
of them said that they felt they would do better! A. They 
felt that their children are doing better.

Q. Are doing better! A. Are doing better, yes. They 
have had the experience.

Q. Dr. Weinstein, are there any other findings that you 
think are material on this, of your study that you think 
are material on the question of the advisability of this

—3 8 1 -
plan, before we get into the conclusions? A. There are 
one or two that have, I think, an incidental bearing, at 
least. One is the source of information regarding their 
eligibility that was reported by the parents.

Q. Yes, sir. A. Newspapers and TV were reported in 
somewhat over half of the 88 cases. The single most fre­
quent source of information, interestingly, was a visit by 
members of some civic organization, interested in encourag­
ing parents to take advantage of their eligibility, informing 
the parent of their eligibility.

There were surveys, door-to-door surveys during 1958, 
then again last summer, in which for the first time—in 
roughly 40 per cent of the cases, this was the initial main 
source of information, people coming around, members of 
these organizations, a part of this program, coming around

Dr. Eugene Weinstein—for Plaintiffs—Direct



100a

telling these children, or the parents, rather, that they 
have an eligible child. This, I think has some bearing on 
the current situation.

Q. So that your report would tend to indicate that the 
parents in the City of Nashville, the majority of them were 
not notified by the Board of Education as to where their 
children should report? A. We had 13 out of the 88 cases

—382—
reported that they found out about their eligibility from the 
school.

Q. Thirteen out of eighty-eight? A. This was upon mak­
ing inquiry at the school.

Q. Now, let me ask you if this second point you have 
in mind, is there anything in your study to indicate whether 
parents who sent their children to integrated schools felt 
that they were emotionally upset, or isolated? A. In 24 
out of 27 cases, the response was, No. In one the parent 
couldn’t tell. There were two instances in which the parent 
said that there were difficulties at first. Two out of the 27 
cases reported some adjustment difficulties in the begin­
ning.

Q. Now, Dr. Weinstein, was there anything else? Was I 
correct in assuming that that was the second point that you 
felt was relevant to this plan? A. Yes; yes.

Q. Based on the findings of this survey or research, what 
would be some conclusions, in your opinion as an expert, 
that might validly be reached with regard to the grade-a- 
year plan which has been proposed by the Davidson County 
Board of Education and which I have allowed you to read? 
A. Well, we must distinguish between data and conclusion, 
data and inference. However, in experience of these par­
ents, one inference we might draw, I think reasonably, 
plausibly, is that the grade-a-year plan does impose a hard-

Dr. Eugene Weinstein—for Plaintiffs—Direct



101a

Dr. Eugene Weinstein—for Plaintiffs—Direct

—3 8 3 -
ship or does impose a factor on a number of Negro families, 
makes it difficult for them, in a sense discourages them to 
take advantage of their eligibility. This is the factor of 
having to split children, separate children, send them to 
different schools, which is purely a product of the grade- 
a-year system.

Q. I might ask you something in regard to this. Is there 
something involved in this factor other than mere incon­
venience! Is there also a factor of fear for safety and 
that sort of thing! A. Not so much fear for safety, but 
parents did express the fact that they would like to be able, 
or expressed the opinion that they would like to be able 
to send their children together to the new situation. They 
would feel more comfortable if both children could go into 
this new kind of situation, which actually is psychologically 
a sound approach on the part of these parents.

Q. Yes. Now, I would like to ask you this: If the pur­
pose of a desegregation plan is to achieve a racially non- 
discriminatory school system in which race is not a factor, 
what, in your opinion, would be the effect of the transfer 
provision in this plan, based on—predicated on racial fac­
tors, in the light of achieving that end? A. Here we move, 
not only with the implications of this study, so that it makes 
it easy for Negro families who don’t want to, to discourage

—384—
them actually. The transfer system in combination with 
the grade-a-year plan has an important effect on this 
family separation issue.

The Nashville experience (I have some familiarity with 
the Nashville experience, studying it rather carefully, what 
information was available in preparation for the current re­
search) would indicate mass transfers, mass paper trans-



102a

fers of Whites back into what is historically the White 
school, of Negroes remaining in what is historically the 
Negro school. I would say that the transfer provisions tend 
—in my opinion, tend to keep the system oriented toward 
a segregated system with token desegregation. This would 
be the major thrust, the major orientation system.

Q. Then I believe you would agree with Dr. Long’s tes­
timony yesterday that the transfer provision in this plan 
is weighted and also the grade-a-year aspects of it are 
weighted towards officially maintaining segregation in the 
school system? A. Yes. For many of the same reasons 
that Dr. Long indicated and for reasons indicated by the 
current research.

Q. Now, with regard to this question of emotional ad­
justment and disciplinary problems among older children, 
are you familiar with any scientific studies which have been 
made which are relevant to the effects of change from

—3 8 5 -
segregation to integration on young adult behavior? A. I 
could indicate two in particular. One is a doctoral dis­
sertation currently being written under my supervision 
on the Oak Ridge High School desegregation situation, 
comparing the attitudes of the White children in the de­
segregated high schools subsequent to desegregation with 
the attitudes of their parents.

Q. I believe the high school in Oak Ridge, Tennessee, 
has been integrated since very shortly after the Supreme 
Court decision, has it not? A. Yes. These data— Students 
will sometimes take a while in getting their dissertation 
written, so the data were actually drawn shortly after the 
Oak Ridge high school was desegregated.

The major finding of this study is that the attitudes of 
the children, the high school students in the desegregated

Dr. Eugene Weinstein—for Plaintiffs—Direct



103a

situation, the White students, are significantly more favor­
able to desegregation than those of their parents on, not 
only their general attitudes, but there was listed point by 
point such things as eating in the cafeterias, attending 
dances together, joint use of the swimming pool, and that. 
And, oh, some 20-odd specific areas of desegregation rele­
vant to the high school situation. This is one piece of 
research.

There is another, a very large scale research conducted
—386—

during World War II, reported in the monumental work, 
The American Soldier, attempting to assess the influence 
of desegregation under combat conditions, the influence of 
desegregation, of experimental integration of Negro pla­
toons into White companies on White attitudes, on preju­
dice, or attitudes toward the Negro; and it was found that 
White companies who had integration experience— And 
these were matched on all kinds of significant variables. 
The general tenor of the findings was that the greater the 
degree of contact with Negro troops—the greater the de­
gree of integration in the company, rather, the more favor­
able were the attitudes of the Whites toward integration 
in that company.

From this study, from general studies of the relationship 
of contact to attitudes and prejudice, the general conclusion 
has been drawn that contact under conditions of equality, 
so that a master-servant relationship will not affect— This 
is contact, but it doesn’t affect attitude. But contact under 
conditions of equality and a common task tends to have the 
effect of reducing intergroup prejudice.

Q. Dr. Weinstein, I believe you said you had done con­
siderable research on child development? A. Yes. I pub­
lished numerous papers, two books.

Dr. Eugene Weinstein—for Plaintiffs—Direct



104a

Q. You have written two books on the subject! A. Yes.
—387—

One currently in preparation. I have had some experience 
in this area.

Q. Yes. In your opinion, would it be possible in an edu­
cational situation to evaluate whether or not a child could 
achieve competently on any given level on the basis of six 
weeks or two months, on the basis of the examination of 
his records for a period of six weeks to two months, as 
has been testified here by Mr. Moss! A. No. Spelling 
tests, arithmetic tests, tests of this nature, which are highly 
variable, even more variable than achievement-level tests 
which account for a much broader range, I think it would 
be extremely difficult to make a reliable prediction on the 
basis of future progress with regard to either educational 
or emotional adjustment on the basis of this kind of 
information.

Q. Based on your experience and training as a social 
psychologist— A. Yes.

Q. —also, would it be your opinion that a child who had 
been in a racially segregated school, and had transferred 
to a racially integrated school would undergo some period 
of emotional adjustment! A. Yes. One would think it’s 
likely.

Q. Would he undergo some period of perhaps scholastic 
adjustment if there were a history of lower achievement

- 3 8 8 -
levels in the— A. Yes.

Q. Among the Negro schools? A. I think Mr. Pettie in­
dicated, and I would agree wholeheartedly, that there is a 
usual correlation between emotional problems and educa­
tional problems.

Dr. Eugene Weinstein—for Plaintiffs—Direct



105a

Q. Would this period of emotional adjustment be a 
permanent thing, necessarily? A. Not necessarily. It de­
pends upon the child and upon the reasons for the emotional 
problem. If you had a child, for example, whose personality 
structure was weak, if he found it difficult to adjust in 
general to new situations, this might be long-range. For a 
normal, healthy child, it would be less likely, probably 
would not be a long-range problem. Unlikely would be, I ’d 
say.

Q. Would a period of six weeks to two months be an 
adequate time within which to base a sound evaluation of 
whether or not that child would succeed in the adjustment 
to the situation ?

Mr. Dodson: I take it he is asking for an opinion.
Mr. Williams: Yes, sir.

By Mr. Williams:
Q. In your opinion? A. In my opinion, I would cer-

—389—
tainly hesitate to bet anything on the results of such an 
evaluation. I don’t think it’s sufficient,

Q. One final question, unless you have something else, 
some other comment you wish to make about the plan:

Dr. Weinstein, in your opinion as a sociologist or social 
psychologist and having lived in this community for over 
two years, is it, in your opinion— You have sat here 
throughout this trial. Have you heard any evidence given 
here by the defendants which, in your opinion, would pre­
vent the School Board of Davidson County from desegre­
gating the schools within one year’s time? A. Well, my 
opinion, in response to this question, would have to be based 
on the information that is available and is in my knowledge

Dr. Eugene Weinstein—for Plaintiffs—Direct



106a

regarding the experience of desegregation in this com­
munity and in other communities, the kinds of problems 
which have been raised, the success or lack of success in 
coping with these problems, and the extent to which the 
problems raised by the school board have been comparable 
to those raised at the time in desegregating other systems. 
I would not regard, in my opinion (let’s take it point by 
point) the problems of school discipline on the school bus 
or increased discipline on the school bus as in itself suf­
ficient objection. The experience of West Virginia in de­
segregating its total school system has given no such indica­
tion, and in Kentucky as well, that school buses have turned

- 3 9 0 -
out to be a problem.

The evidence on the achievement gap, of course, is fairly 
conclusive in some respects that Negroes tend to catch up 
quicker in a desegregated situation than they do in a segre­
gated situation. This is the experience in Washington, 
I). C. It’s the experience in Louisville, Kentucky, where the 
major systematic research has been done.

The issue of scatter, I would think, would be favorable.
Q. You mean by that the scatter of population? A. The 

scatter of school population, in that the numbers of children 
affected, the numbers of children involved in any one 
school— No one school would be likely to be affected, have 
its racial composition, for example, seriously overturned. 
It would not be a focusing of the problem on one or two 
schools, either of the educational problems— The absorp­
tion capacity of each school would not be taxed to the utmost 
in terms of, not numbers of children perhaps, but educa­
tional problems by having these distributed more widely. 
These seem to me to be grounds— on the basis of these 
grounds and on grounds that I—and other grounds I would 
think— Well, let me make one other point with respect to

Dr. Eugene Weinstein—for Plaintiffs—Direct



107a

this, and that is the relationship of gradualism to grade-a- 
year type plans, to community disturbance and disruption. 
There the experience is that there is no relationship. They

- 3 9 1 -
are as likely or as unlikely to have disruption with a 
gradual plan as with not, have the community upset.

The Little Rock case and the Nashville incidents are 
examples of gradual programs which still involve, in the 
beginning, considerable community upset.

So that in some, for these reasons— I hate to be so long- 
winded about this answer, but for these reasons I would 
think that complete desegregation would be feasible, in my 
opinion, for Davidson County.

Q. Within one year’s time ? A. Within one year’s time.
Q. Now, there is one factor that the defendants are rely­

ing on that you didn’t mention, and I want to ask you if you 
took that into consideration. They say that first-grade 
children adjust better than older children and that you have 
more disciplinary problems with the older children, I think 
you have covered this in your—

The Court: If he has covered it, don’t ask him 
again. The time is slipping away.

Mr. Williams: All right.

By Mr. Williams:

Q. You did take those factors into consideration— A. 
Yes.

Q. —in making your opinion, didn’t you, and you con-
—392—

sidered the factors which you had previously discussed in 
considering those factors and reaching your opinion? A. 
Yes, sir.

Dr. Eugene Weinstein—for Plaintiffs—Direct

# # # # #



108a

Annie P. Driver—for Plaintiffs—Direct

—408—
*  #  *  #  #

A nnie  P. D river, a witness called on behalf of the plain­
tiffs, being first duly sworn, was examined and testified as 
follows:

Direct Examination by Mr. Williams:

Q. This is Mrs. Annie P. Driver? A. Yes.
Q. You are one of the plaintiffs in this lawsuit, are you

—409—
not? A. Yes, I am.

Q. I believe you reside out on Hyde’s Ferry Road? A. 
Ido.

Q. You have three children who are now in school? A. 
Yes.

Q. What are their names and ages? A. Cleophus, Chris­
topher, and Deborah.

Q. What grades in school are they in? A. Cleophus is 
in the sixth grade, and Christopher is in the fourth, and 
Deborah is in the second.

Q. Now, Mrs. Driver, what school are your children at­
tending? A. They are now attending Haynes school.

Q. And approximately how far is Haynes from your 
home? A. I would say about five or six miles.

Q. How far is Bordeaux Elementary School from your 
home? A. Oh, less than a mile.

Q. How far is Cumberland High School, if you know, 
Junior High? A. Oh, Cumberland High is only a few 
blocks.

Q. Only a few blocks? A. Yes.

Q. Is it within walking distance? A. Oh, yes.
—410—



109a

Q. Mrs. Driver, did you make application this past Sep­
tember for your children— A. Yes, I did,

Q. —to attend Bordeaux Elementary School! A. Yes, 
I did.

Q. And you seriously and sincerely want your children 
to go there! A. Yes, I do.

Q. Why do you want your children to go to Bordeaux 
or to an integrated school! A. Bordeaux is closer. That’s 
one thing. And then the other thing is that I want my child 
to grow up without an inferior complex. For instance, now, 
it’s always a question as to why they can’t go to this school 
or why they can’t do this and do the other. And it’s quite 
a problem to sit down and try to explain to a child that 
he can’t do this or that because of his color. And I don’t 
want them to be prejudiced or to have any inferior in life, 
and I feel if they are now at this age able to enter into a 
school which they desire to go to, that they sincerely want 
to go to, that they will be better prepared in life as far 
as society is concerned and in any other place and have a 
better education than to be sent somewhere that they really

—4 1 1 -
are not interested in going.

There, in this community where we live, they play with 
White children, and some of the closest—

Q. You mean in your neighborhood, there are White 
children in the neighborhood! A. Yes.

Q. And they play with them! A. And as children, they 
like to go where their friends are. Well, they consider them 
as friends, I suppose, because they do play with them, and 
if that is what they want, then personally, that is what I 
want them to have, an integrated education. So that’s why 
I applied for my child to go.

Annie P. Driver—for Plaintiffs—Direct



110a

Rev. Henry C. Maxwell—for Plaintiffs—Direct 

By the Court:

Q. What grades are your children inf In second— A. 
The second, fourth and sixth. And next year Cleophus will 
be ready for junior high school, and I sincerely want him 
to go to Cumberland High School, because that is where 
he wants to go.

By Mr. Williams:

Q. Now, Mrs. Driver, do you feel that your children 
would get a better education—well, will get the best educa­
tion that they could get in a situation where the schools are 
segregated by pupil assignment, where the teachers are seg­
regated, and where everything is segregated throughout

—412—
the school system? A. Do I feel that they will get a bet­
ter—

Q. Do you feel that, under this segregated system, they 
will get the best education that they can get? A. No, I 
don’t feel that way. In the first place, if it’s not what the 
child wants, I don’t feel that he would have any incentive 
to try to learn as much as he would being in a school where 
he sincerely wants to be, or where he feels that he would 
enjoy being. And for that— That is one reason that I don’t 
feel that he would be as eager to learn in the first place.

Henky C. Maxwell, a witness called on behalf of the 
plaintiffs, being first duly sworn, was examined and testi­
fied as follows:

Direct Examination by Mr. Williams:
—413—

Q. This is Reverend Henry C. Maxwell? A. Yes.
Q. Reverend Maxwell, who are your two children? A. 

H. C. Maxwell, Jr., and Benjamin Grover Maxwell.



111a

Q. These are two boys? A. Yes, sir.
Q. They are in junior high school this year? A. Yes, 

sir. I might state I have more children than that, though.
Q. You have some younger children in grammer school? 

A. Yes, I do.
Q. Who are coming up? A. That’s right.
Q. And I believe you, at present, live near Providence 

School, which has been designated by defendants as a seg­
regated Negro school? A. I do.

Q. Elementary school? A. That is right.
Q. Reverend Maxwell, where do you want your two boys 

to attend school, the two who are in junior high school, 
first-year junior high school this year? A. I want them to 
attend Glencliff.

Q. Glencliff School? A. I do.
—414—

Mr. Dodson: May it please the Court, do I under­
stand that the record made here on the 26th will not 
be any part of this record? The reason I ask, it 
seems to me that we are going over some things in 
that record.

Mr. Williams: I might ask that, too, Your Honor.
The Court: It should be a part of the record. It 

can be treated as a part of the record if both parties 
will agree.

Mr. Dodson: It seems to me it might expedite 
things.

The Court: If both parties will agree that it may 
be so treated.

Mr. Williams: Then that will cut this short, if 
Your Honor please.

The Court: It may be made a part of the record 
here.

Rev. Henry C. Maxwell—for Plaintiffs—Direct



112a

Mr. Dodson: Yes, sir.
The Court: All right.

By Mr. Williams:

Q. Reverend Maxwell, do you feel that your two boys 
will get the best education that they can get under a segre­
gated school system with the children and the teachers and 
everybody else segregated according to race? A. Truth­
fully, I do not.

—415—
Q. Is that one of the reasons and the major reason why 

you want your children to attend an integrated school? 
A. That’s the major reason.

Q. I believe on this distance, did we cover that the last 
time you were up here? A. We did.

Q. Well, we won’t go into that. I would like to bring 
this out. You are a farmer, are you not? A. Yes, sir.

Q. Do you have chores for your boys there on the farm? 
A. I didn’t understand.

Q. Do your chores, jobs for your boys to do there on the 
farm helping you? A. From five years old through 16, 
they have a task.

Q. Does every minute of their afternoon time count in 
doing those chores? A. It do, in the interest of them and 
me.

* # # # #
—416—

# # * # #
Mr. Williams: May it please the Court, I under­

stand that it is stipulated that, if Mrs. Clark were 
here, she would testify with regard to the admission 
of her child. She has been here for yesterday and 
today.

Rev. Henry C. Maxwell—for Plaintiffs—•Direct



113a

Colloquy

The Court: She would testify to what!
Mr. Williams: With regard to the application for 

her child to go to Bordeaux.
Mr. Dodson: Is she a party plaintiff?
Mr. Williams: Yes, sir.
Mr. Dodson: I think the bill speaks for that.
The Court: I think so. So there is no attack on 

that.
#  *  #  *  #



114a

Filed: November 23,1960

This cause came on to be heard before the Honorable 
William E. Miller, District Judge, on October 27, 1960, and 
prior days of the term, upon the entire record, oral testi­
mony and exhibits without the intervention of a jury, brief 
and arguments of counsel, from all of which the Court 
finds and holds as follows:

Findings of Fact

1. The plaintiffs, all of whom are Negro school children 
and their parents and are citizens and residents of David­
son County, Tennessee, filed this action on 19 September, 
1960, seeking declaratory and injunctive relief against 
enforcement of the custom, practice and policy of the de­
fendant, County Board of Education of Davidson County 
and its Superintendent of Schools, J. E. Moss, requiring 
racial segregation in the County Schools and refusing to 
admit certain of the plaintiffs to certain schools solely 
because of their race or color. Plaintiffs also prayed for 
an order requiring defendants to submit a plan for re­
organization of the entire County School System into a 
unitary nonracial school system, including plans for elim­
ination of racial segregation in teacher and other personnel 
assignments, school construction, and the elimination of any 
other discrimination in the operation of the school system 
or in the school curriculum which are based solely upon 
race or color.

2. The defendants, Frank White; S. L. Wright, Jr.; 
F. K. Hardison, Jr.; Ferriss C. Bailey; E. D. Chappell; 
Aubrey Maxwell; and Olin White, together comprise all the 
duly elected members of the defendant County Board of 
Education of Davidson County, Tennessee, and are sued

Findings o f  Fact, C onclusions o f  Law and Judgm ent



115a

in their individual and official capacities together with said 
Board of Education, which is sued as a continuous body or 
entity. Defendant, J. E. Moss, is the duly elected or ap­
pointed County School Superintendent and/or Superin­
tendent of Public Instruction of Davidson County, and is 
sued in both his individual and official capacity. The Board 
of Education is vested with the administration, manage­
ment, government, supervision, control and conduct of the 
public schools of said County, and defendant, J. E. Moss, 
as administrative agent for the Board, has immediate 
control of the operation of the County Schools, and serves 
as a member of the Executive Committee of the Board.

3. The defendants, acting under color of the laws of the 
State of Tennessee and County of Davidson, have pursued 
for many years and are presently pursuing a policy, custom, 
practice and usage of operating a compulsory racially 
segregated school system in and for said County. The 
racially segregated school system operated by defendants 
consists of a system of elementary, junior high, and high 
schools, limited to attendance by white children and negro 
children, respectively, of the County of Davidson. Attend­
ance at the various schools is determined solely upon race 
and color. A dual set of school zone lines is also maintained. 
These lines are based solely upon race and color. One set 
of lines relates to the attendance areas for the Negro 
schools and one set to the attendance areas for the white 
schools. These lines overlap where Negro and white school 
children reside in the same residential area.

4. At the beginning of the September 1960, school term, 
the infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin 
Grover Maxwell, made application individually and/or

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



116a

through their parents to defendants for admission or trans­
fer to Glencliff Junior High School and/or Antioch High 
School, same being “ white” schools which are nearer to 
their residence than Haynes High School, the “ Negro” 
school they are required to attend, and were refused said 
admission or transfer solely on account of their race or 
color. At the same time, the infant plaintiffs, Cleophus 
Driver, Christopher C. Driver, Deborah Driver, and 
Deborah Ruth Clark, made application individually and/or 
through their parents for admission or transfer to Bor­
deaux Elementary School, a “ white” school which is nearer 
to their residence than Haynes School, the “Negro” school 
they are recpiired to attend, and were refused admission or 
transfer by defendants, solely on account of their race or 
color. Had these infant plaintiffs been white children, they 
would have been admitted or transferred to the said “white” 
schools to which they applied.

5. The infant plaintiffs, Jacqueline Davis, Shirley Davis, 
George Davis, Jr., Robert Davis, Rita Davis, and Robert 
Rickey Taylor, reside nearer to a Negro school which they 
have been attending, but some of them accompanied the 
other plaintiffs when they made application for admission 
to said “white” schools, and all of them join in this action 
because they allege that they are being denied their right 
to enjoy a nondiscriminatory public education by reason 
of the compulsory racially segregated public school system 
which defendants are maintaining and operating in and for 
Davidson County.

6. At a preliminary hearing on 26 September, 1960, this 
Court reserved judgment on motions by defendants to 
strike and/or dismiss those portions of the complaint com­

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



117a

plaining of segregated teacher and personnel assignment, 
but ordered the defendants to submit a complete and sub­
stantial plan which will accomplish complete desegregation 
of the public school system of Davidson County, Tennessee 
in compliance with the requirement of the Fourteenth 
Amendment to the Constitution of the United States.

7. Pursuant to said order of the Court, the defendants 
subsequently tiled with the Court the following plan for 
desegregation of the school system :

P l a n

1. Compulsory segregation based on race is abolished 
in Grade One of the Dhvidson County Schools for 
the scholastic year beginning in September 1961, 
and thereafter for one additional grade beginning 
with each subsequent school year, i.e., for Grade Two 
in September 1962, Grade Three in September 1963, 
Grade Four in September 1964, etc.

2. A plan of school zoning based upon location of school 
buildings, transportation facilities and the most re­
cent scholastic census, without reference to race, 
will be established for the administration of the first 
grade, and other grades as they are desegregated 
according to the gradual plan.

3. Students entering the first grade will be permitted to 
attend the school designated for the zone in which 
he or she resides, subject to regulations that may be­
come necessary in particular cases.

4. Application for transfer of first grade students, and 
subsequent grades according to the gradual plan,

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



118a

from the school of their zone to another school will 
be given careful consideration and will be granted 
when made in writing by parents, guardians, or those 
acting in the position of parents, when good cause 
therefor is shown and when transfer is practicable 
and consistent with sound school administration.

5. The following will be regarded as some of the valid 
conditions for requesting transfer:

a. When a white student would otherwise be re­
quired to attend a school previously serving 
colored students only.

b. When a colored student would otherwise be re­
quired to attend a school previously serving white 
students only.

c. When a student would otherwise be required to 
attend a school where the majority of students in 
that school, or in his or her grade, are of a differ­
ent race.

6. A plan of pupil registration to be held each Spring 
to aid in formulating necessary arrangements for the 
opening of schools in the Fall, such as available 
room, teaching aids, textbooks, pupil immunizations, 
zoning, and transportation facilities, will be con­
tinued.*

7. Transportation will be provided to all students that 
are eligible for bus service.*

8. Thereafter, the plaintiffs filed the following specifica­
tions of objections to said plan:

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960

This has been done for years.



119a

Specification of Objections to Plan Filed by
County Board of Education of Davidson County

The plaintiffs, Henry C. Maxwell, Jr., et al., respect­
fully object to the plan filed in the above entitled cause 
on or about the 19th day of October, 1960, by the de­
fendant, County Board of Education of Davidson 
County, Tennessee, and specify as grounds of objection 
the following:

1. That the plan does not provide for elimination 
of racial segregation in the public schools of Davidson 
County “with all deliberate speed” as required by the 
due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United 
States.

2. That the plan does not take into account the 
period of over six (6) years which have elapsed during 
which the defendant, County Board of Education of 
Davidson County, has completely failed, neglected and 
refused to comply with the said requirements of the 
due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United 
States.

3. That the additional twelve (12) year period pro­
vided in said plan is not shown to be “necessary in the 
public interest” and “ consistent with good faith com­
pliance at the earliest practicable date” in accordance 
with the said requirement of the due process and equal 
protection clauses of the Fourteenth Amendment to 
the Constitution of the United States.

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



120a

4. That the defendants have not carried their burden 
of showing any substantial problems related to public 
school administration arising from:

a. “ the physical condition of the school plant” ;

b. “ the school transportation system” ;

c. “personnel” ;

d. “ revision of school districts and attendance areas
into compact units to achieve a system of deter­
mining admission to the public schools on a non- 
raeial basis” ;

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

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

5. That the plan is manifestly a substantially exact 
copy of the “ Nashville Plan” adopted by defendants 
without reference to the local conditions in Davidson 
County as a minimum plan predicated on subjective 
and mental fears of the defendants as to possible com­
munity hostility or friction among students, and is not 
supported by a showing of any objective adminis­
trative conditions or problems which legally justify its 
complete deprivation of the constitutional rights of 
plaintiffs and all other children now in school to an 
integrated education by projecting the bar of segrega­
tion into the next twelve years.

Findings of Fact, Conclusions of Law and
Judgment, November 23, 1960



121a

6. That the plan forever deprives the infant plain­
tiffs and all other Negro children now enrolled in the 
public schools of Davidson County, of their rights to a 
racially unsegregated public education, and for this 
reason violates the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitu­
tion of the United States.

7. That the plan wholly ignores and fails to comply 
with the statement of this Court from the Bench on 
26 September, 1960, holding that the individual plain­
tiffs “ have been denied their constitutional and legal 
rights” , and suggesting that they be accorded these 
rights by defendants voluntarily rather than by court 
order, in that under the plan the individual plaintiffs 
can never be admitted to an integrated school and are 
forever deprived of their rights to a racially integrated 
public education in Davidson County.

8. That the plan fails to take into account recent 
annexation by the City of Nashville of a large area of 
surrounding Davidson County resulting in the public 
schools of said County becoming a part of the City of 
Nashville School System, which latter School System is 
now desegregated from the first through the fourth 
grades.

9. That the plan fails to take into account the rights 
of the infant plaintiffs and other Negro children sim­
ilarly situated and forever deprives them of their rights 
to enroll in and attend any technical or other special 
or vocational schools, summer courses and educational 
training of a specialized nature as to which enrollment 
is not based on location of residence.

Findings of Fact, Conclusions of Law and
Judgment, November 23, 1960



122a

10. Paragraph five (5) of the plan violates the due 
process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States in 
that said paragraph provides racial factors as valid 
conditions to support requests for transfer, and fur­
ther in that the racial factors therein provided are 
manifestly designed and necessarily operate to per­
petuate racial segregation.

11. That the plan contemplates continued mainte­
nance and operation by defendants of “Negro” and 
“white” schools substantially designated by race, in 
violation of the due process and equal protection 
clauses of the Fourteenth Amendment to the Consti­
tution of the United States, in that it fails to make any 
provision for the reorganization of the entire County 
School System into a unitary, nonracial school system 
so as to include a plan for the assignment of teachers, 
principals and other school personnel, as well as school 
children, on a nonracial basis; for the allotment of 
funds, construction of schools and approval of budgets 
on a nonracial basis; and for the elimination of all 
other discriminations in the operation of the school 
system or in the school curriculum which are based 
solely on race and color.

W hereof, the plaintiffs pray:
1. That the Court grant their motions for tempo­

rary restraining order and preliminary injunction so 
as to require the immediate admission by defendants of 
the individual plaintiffs to the public schools of David­
son County, Tennessee on an unsegregated basis.

Findings of Fad, Conclusions of Law and
Judgment, November 23,1960



123a

2. That the declaratory and permanent injunctive 
relief prayed for in their complaint he granted, said 
injunctive relief to be effective not later than the begin­
ning of the Spring Semester or Term of the public 
schools of Davidson County in January 1961.

3. That the defendants be required by the Court to 
reorganize the entire County School System of David­
son County, Tennessee into a unitary nonracial school 
system, including all of the matters prayed for in the 
sixth prayer of the complaint filed in this cause.

9. At the hearing on said plan on 24 October 1960, the 
defendants offered, in support of the plan, the testimony 
of Mr. Ferriss C. Bailey, Chairman of the Special Commit­
tee of the Board charged with preparing the plan, who 
had been a member of the Board for several years and 
previously had been a member of the City of Nashville 
Board of Education, and who testified that the plan was 
prepared by the Staff, and that the Board accepted and 
approved the plan and that he thought it a wise plan. Mr. 
J. E. Moss, the County Superintendent for many years, 
testified as an expert that he believed the plan to be a wise 
and workable one; Mr. W. H. Oliver, Superintendent of 
Schools of the City of Nashville, testified as an expert that 
the Nashville grade a year “ stair-step” plan initiated under 
Court order in 1957 had proved a wise and workable one 
for Nashville. In addition, the Attendance Officer, Psy­
chologist and Transportation Officer of the County Schools, 
testified as to data relating to school population, pupil 
achievement levels and school bus transportation respec­
tively, in the County School System. Defendants also in­
troduced a zoning map and attendance schedule showing

Findings of Fact, Conclusions of Law and
Judgment, November 23, 1960



124a

the projected maximum expected distribution of Negro 
school children in presently white County Schools under 
nonracial zoning. All of said staff members had several 
years experience in their respective positions in Davidson 
County, and were intimately acquainted with conditions in 
that county and all problems involved in desegregation 
therein.

10. In opposition to the plan, plaintiffs introduced the 
testimony of Dr. Herman Long, Director of the Depart­
ment of Race Relations, American Missionary Association 
of the Congregational Church, and teacher of Sociology 
in Fisk University, Nashville, Tennessee, for several years, 
an expert in the field of race relations in the United States; 
Dr. Eugene Weinstein, Assistant Professor of Sociology 
in Vanderbilt University, Nashville, Tennessee, an expert 
in the field of child development, who has conducted a 
recent research study of attitudes of Negro parents in­
volved in public school desegregation in the City of Nash­
ville, located within Davidson County, Tennessee; Dr. J. 
Masuouka, Professor of Sociology and Chairman of the 
Department of Social Science at Fisk University, Nashville, 
Tennessee for several years, an expert in the field of race 
relations among peoples of the world; and the plaintiffs, 
Henry C. Maxwell, Sr., Mrs. Annie P. Driver, and Mrs. 
Floy Clark (the latter by stipulation). The plaintiffs tes­
tified that they objected to the plan because it would pre­
vent their children now in school from enjoying their con­
stitutional rights to a nonraeially discriminatory public 
education, that their children wanted to enjoy such an edu­
cation now, and that they feel their children are being- 
injured by the racially segregated education they are now

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



125a

receiving. The plaintiffs’ aforesaid expert witnesses were 
of the opinion that desegregation could reasonably be ef­
fected in the Davidson County School System within one 
year; and that the pupil transfer provision contained in the 
proposed plan, as drafted, would necessarily tend to per­
petuate segregation. However, these witnesses, although 
expert witnesses and outstanding men in their respective 
fields, have had no actual experience with or responsibility 
for the administration of the schools in Davidson County 
and lack the same intimate knowledge of local conditions 
possessed by defendants’ witnesses.

11. This Court approved in the case of the City of Nash­
ville a plan of gradual desegregation after considering the 
particular facts which prevailed in that case. This plan of 
gradual, desegregation, according to the testimony in this 
case, has worked well in the City of Nashville and has 
proved to be a workable and a feasible plan of desegrega­
tion. It has proved to be, in the opinion of the Superinten­
dent of City Schools, a very wise plan for this community.

12. As stated, the school authorities of Davidson County, 
including the members of the staff, are close to the situa­
tion in Davidson County, are more intimately acquainted 
with them and have more knowledge about them than any­
one else could possibly possess and the primary respon­
sibility rests with these authorities, whose perogatives and' 
rights should not be usurped by the Courts.

13. From the testimony in this case it is evident that:

a. A plan of gradual desegregation works with a 
minimum of difficulties in this community.

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



126a

b. Practically all of the schools of Davidson County 
are or may be affected by a plan of desegregation for 
the reason that the areas populated by Negroes are 
greatly scattered throughout the County.

c. There has been a tremendous increase in the 
school population in Davidson County over the past 
several years, with the result that practically all of 
the school housing facilities are crowded or over­
crowded and the teacher-pupil load is at a peak in the 
system.

d. The County school system operates a transporta­
tion system, which system is presently operated at 
peak capacity, and the bus drivers are solely charged 
with maintaining discipline on the bus, in addition to 
their other duties, so that any factor which increases 
or tends to increase disciplinary problems on the buses 
likewise increases the hazards to the safety of the 
pupils. Discipline among the pupils on the buses is in­
creased with a mixing of the races, especially when 
such is commenced at grade levels above the first and/ 
or first and second grades.

e. Because the children of the two races have not 
been intimately associated due to proximity of resi­
dences in the County, a great emotional impact will be 
experienced by the children of both races following 
desegregation of the schools.

f. Negro children in the higher grade levels who 
have not previously attended desegregated schools have 
an achievement level substantially below that of white 
children, and such disproportion in achievement level

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



127a

increases in direct proportion to the grade of the child 
so that any complete desegregation, except upon a 
graduated basis, would create additional difficulties for 
the children of both races.

g. Any change of organization or plan in the school 
system, other than at the end of a school year or a 
school semester, would cause confusion and disruption 
of classes with an accompanying loss of teacher time 
and student time.

14. The school in the Bordeaux community, one of the 
schools where the plaintiffs have made application for en­
rollment, has been partially destroyed by fire, and the school 
population there is presently being cared for on a make­
shift basis, with all existing facilities overtaxed. The 
Antioch School, one of the schools where plaintiffs made 
application for enrollment, is the most overcrowded school 
in the entire system, and the time consumed in traveling to 
the Antioch School by bus from the residence of these 
plaintiffs is as great as the time consumed by such plain­
tiffs in traveling by bus to the Haynes High School, to which 
they are presently assigned.

15. It is particularly desirable to have the school system 
of the City of Nashville and that of Davidson County 
operating on a parallel basis.

Conclusions of L aw

1. This Court has jurisdiction of the parties and of this 
action, which is filed pursuant to Title 28, United States 
Code, Sections 1331, 1343, 2001 and 2202, and Title 42, 
United States Code, Section 1983, for injunctive and de­

Findings of Fact, Conclusions of Law and
Judgment, November 23, 1960



128a

claratory relief to redress rights of the plaintiffs secured by 
the equal protection and due process clauses of the 
Fourteenth Amendment to the Constitution of the United 
States and by the Act of May 13, 1870, Chapter 14, Section 
16, 16 Stat. 144 (Title 42, United States Code, Section 
1981).

2. This is a class action brought not only by the plaintiffs 
for their own benefit but also on behalf of all other persons 
similarly situated.

3. The Court at the outset considers the case with the 
established principle that compulsory racial segregation is 
unconstitutional and that the plaintiffs and those they 
represent are entitled to have their rights declared and 
enforced accordingly.

4. In approving a plan of gradual desegration in the 
case of the City of Nashville, after considering the par­
ticular facts which prevailed in that case, the Court made 
the statement in substance that each case must be deter­
mined on its own facts and that a decision elsewhere in the 
United States may or may not be revelant depending upon 
the conditions, whether or not they were comparable to the 
situation which prevailed here, and that, after all, this was a 
problem which must be determined locally and in accordance 
with local conditions. That case was appealed to the Court 
of Appeals of this Circuit, and was affirmed in a unanimous 
decision of that court. Thereafter at a later date the Su­
preme Court of the United States refused to review it by 
denying certiorari, which left, insofar as this Court is 
concerned, the decision of the Court of Appeals in full 
force and effect as stating correct legal principles.

Findings of Fact, Conclusions of Law and
Judgment, November 23, 1960



129a

5. This Court does not hold that automatically the Nash­
ville Plan constitutes the plan which should be applied to 
Davidson County. The pertinent factors must be weighed 
and assessed, and if the factors are substantially similar, 
then the precedent of that case should guide the Court in 
the decision of this case. If they are materially dissimilar, 
then that case would not apply. Considerable flexibility is 
involved in applying the controlling legal principle.

6. The Court must decide the case in accordance with 
what it thinks is a realistic plan for the community itself, 
considering all of the conditions and circumstances in­
volved, the administrative problems, the personnel prob­
lems, and any other relevant and pertinent factors, one 
of the important ones of which is the efficient and har­
monious operation of the school system itself. The Court 
must not disrupt and destroy the school system. That fact 
must be kept in mind always.

7. The Supreme Court has recognized the principle that 
the primary responsibility in assessing and weighing these 
factors rests with the constituted school board and author­
ities.

8. The Court does not have any doubt that the School 
Board has acted in good faith, and has fully carried the 
burden of proof to show the feasibility of the principal 
features of the proposed plan.

9. The plan presented by the defendant County Board 
of Education should be approved by the Court with the 
following exceptions and modifications:

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



130a

a. Instead of the first grade being desegregated, 
as contemplated by said plan, the Court is of the opin­
ion and holds that the first four grades should be de­
segregated at one time. This will equalize the plan 
with the City of Nashville Plan. It is particularly 
desirable to have the grades of the two systems opera­
tion on a parallel basis.

b. In view of the delay which has already occurred 
in regard to desegregation, the plan should be effec­
tive and should be put into operation (that is, the first 
four grades should be desegregated) at the beginning 
of the next school semester beginning January 1961, 
rather than the next school year; and the first five 
grades will be desegregated beginning September 1961.

c. A  specific provision should be included in the 
decree for the complete elimination of any possible 
discrimination with respect to the summer classes 
which are attended by outstanding students. In other 
words, facilities on a nondiscriminatory, desegregated 
basis will be provided for students of this type, and 
provision will be made to notify all teachers in the 
system, both colored and white, of the availability of 
these classes, so that there will be no doubt about the 
colored students having knowledge of the opportu­
nities made available in this respect.

d. Specific notice will be given to all parents of the 
zone in which their children live. In other words, before 
the beginning of the school year, the parents of all 
children will receive specific notice of the zone in which 
their children fall for the purpose of attending classes

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



131a

in order that there may be removed any possible donbt 
about some people not having full information.

e. The Court will retain jurisdiction of this case 
throughout the period of transition.

10. The legal rights of all plaintiffs are recognized and 
declared but they are enforced in accordance with the 
provisions of the plan with the above modifications. Said 
plan is not a denial of the rights of the individual plain­
tiffs, but is a postponement in enforcement of the rights 
of some of the plaintiffs in the interest of the school sys­
tem itself and the efficient, harmonious, and workable tran­
sition to a desegregated method of operation.

11. Judgment should again be reserved, for the present, 
on defendants’ motions to strike and to dismiss certain 
portions of the complaint relating to segregated teacher 
and personnel assignment, and on the matters raised in 
the complaint which are involved in said motions, pending 
submission of further memoranda and argument of counsel.

12. The prayer of the plaintiffs for injunctive relief 
should be denied, except for the matters as to which judg­
ment is reserved.

Findings of Fact, Conclusions of Law and
Judgment, November 23, i960

Judgment

It is accordingly ordered, adjudged and decreed as 
follows :

1. That the plan submitted by the County Board of 
Education of Davidson County, Tennessee, is approved, 
except in the following particulars:



132a

a. Compulsory segregation based on race is abol­
ished in Grades One through Four of the Davidson 
County Schools for the Second Semester of the 1960-61 
school year beginning January 1961, and thereafter for 
one additional grade beginning with each subsequent 
school year, i.e., for Grade Five in September 1961, 
Grade Six in September 1962, etc.

b. As respects the summer classes attended by out­
standing students, there will be no segregation based 
on races, and notice of such will be immediately given 
by the School Board to all teachers in the Davidson 
County school system, both Negro and white, of the 
availability of these classes.

c. The Davidson County School Board will, prior to 
the beginning of the Second Semester of the 1960-1961 
school year, and prior to the beginning of each school 
year thereafter, give specific notice to the parents of 
all school children of the zone in which their children 
fall for the purpose of attending classes.

2. The prayer of the plaintiffs for injunctive relief be, 
and the same is hereby denied, except with regard to those 
matters as to which judgment is hereinafter reserved.

3. Jurisdiction of this case is retained by the Court 
throughout the period of transition.

4. Judgment is reserved on the question of the motion 
to strike and those portions of the motion to dismiss not

Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



133a

Findings of Fact, Conclusions of Law and 
Judgment, N ovem ber 23,1960

hereinbefore overruled, and on the matters raised in the 
complaint which are involved in said motions.

To the foregoing action of the Court in approving the 
plan submitted by defendants and in denying plaintiffs’ 
prayer for injunctive relief, the plaintiffs except.

This the 23rd day of November 1960.

W m . E. M iller 
United States District Judge



134a

Order, November 29, 1960

Filed: November 29, I960

In this action the Court heretofore entered its Findings 
of Fact, Conclusions of Law and Judgment approving with 
certain modifications a plan for the gradual desegregation 
of the public schools of Davidson County, and for admis­
sion of school children to the schools of the county system 
without discrimination on account of race. At that time, 
however, the Court expressly reserved judgment on the 
defendants’ motions to strike and dismiss certain portions 
of the complaint relative to segregated teacher and per­
sonnel assignment, and on the matters raised in the com­
plaint involved in said motions, including the question of 
injunctive relief, pending submission of further briefs and 
argument of counsel. Such briefs have now been submitted 
and the Court has given full consideration to the questions 
as to which judgment was reserved.

Upon full consideration of the briefs, applicable authori­
ties, and the entire record, the Court is of the opinion that 
the allegations of the complaint challenged by the motions 
to strike and to dismiss raise issues of such character as 
to require an investigation upon the merits, and that such 
allegations should not be summarily stricken or dismissed 
without a hearing. Motions to strike allegations in plead­
ings are not favored and in case of doubt should not be 
sustained.

It is, therefore, ordered that the motions to strike and 
to dismiss those portions of the complaint relating to 
teacher and personnel assignment be and they are hereby 
overruled, and that the defendants be and they are hereby 
allowed twenty days from date in which to further plead 
to the complaint.



135a

Order, November 29, 1960

The Court reserves judgment as to the substantive ques­
tions involved, including the question of granting injunctive 
relief, pending a further hearing after the issues have been 
fully joined between the parties.

W m. E. Miller
United States District Judge



136a

Filed: December2,1960

Come the plaintiffs and move the Court, pursuant to 
Rule 59 (a) (2), (e), and Rule 60 (b) (5) or (6) of the 
Federal Rules of Civil Procedure, for a new trial and for 
appropriate relief from the operation of the judgment en­
tered by the Court in the above cause on 23 November 
1960, in the following particulars and upon the following 
grounds:

1. Insofar as said judgment fails to accord specific in­
dividual relief to the infant plaintiffs, Henry C. Maxwell, 
Jr., Benjamin Grover Maxwell, Cleophus Driver, and Deb­
orah Ruth Clark, by way of requiring their admission to 
the respective schools to which they applied, the judgment 
operates upon them inequitably and they should be granted 
appropriate further relief for the reasons hereinafter 
stated:

(a) The uncontradicted proof, given by plaintiffs at the 
26 September 1960 hearing, shows that when the plaintiffs, 
Henry C. Maxwell, Jr., and Benjamin Grover Maxwell 
presented themselves for enrollment at Glencliff Junior 
High School on 2 September 1960, they were routinely 
enrolled by the administrative officials at said school and 
assured by said officials that they wTere entitled to and 
would be assigned either at Glencliff or at Antioch High 
School, without any indication by said officials that their 
admission would entail any special administrative problems.

(b) The proof does not show that any substantial ad­
ministrative problems would arise by admission of the two 
infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin 
Grover Maxwell, alone, to Glencliff Junior High School or 
Antioch High School. Counsel for defendants stated to 
the Court at the 26 September 1960 hearing as the only 
reason for opposing said individual relief, that other Negro 
children might then file suits seeking the same relief; which

M otion  fo r  New Trial and for A p p ro p riate  R e lie f



137a

objection is merely speculative and insufficient to justify 
deprivation of the rights here involved.

(c) Under the plan proposed by defendants and modified 
and approved by this Court in said judgment, the infant 
plaintiffs, Christopher C. Driver and Deborah D. Driver, 
and other Negro children in or below the fourth grade, will 
be entitled to attend Bordeaux School or one of the tem­
porary facilities established for its enrollment pending its 
repair, so that no substantial administrative problems 
would arise by admission to that same school of the two 
infant plaintiffs, Cleophus Driver and Deborah Ruth Clark, 
who are in the sixth and fifth grades respectively, which 
would not already exist by reason of the desegregation in 
the first four grades throughout the entire school.

(d) Under said plan approved by the Court, the infant 
plaintiffs, Christopher C. Driver and Deborah D. Driver, 
will receive individual relief while their older brother, the 
infant plaintiff, Cleophus Driver, who would ordinarily 
attend the same school with them, is denied such relief 
without substantial administrative necessity or reason.

(e) The defendants have not carried their burden of 
showing that the deprivation of individual relief to said 
four infant plaintiffs, Henry C. Maxwell, Jr., Benjamin 
Grover Maxwell, Cleophus Driver, and Deborah Ruth Clark, 
is substantially essential to the effective and feasible op­
eration of the plan approved by the Court in its order 
entered 23 November 1960.

(f) The defendants have not carried their burden of 
showing that the deprivation of individual relief to said 
four of the infant plaintiffs, Henry C. Maxwell, Jr., Ben­
jamin Grover Maxwell, Cleophus Driver and Deborah Ruth 
Clark, is either “necessary in the public interest” or “con­
sistent with good faith compliance at the earliest practicable

Motion for New Trial and for Appropriate Belief



138a

date” , as required by the Fourteenth Amendment to the 
Constitution of the United States.

(g) The proof shows that it is feasible for said four in­
fant plaintiffs who are deprived of individual relief by the 
plan as approved by the Court, to be granted such relief 
in addition to the operation of said plan approved by the 
Court.

(h) Said four infant plaintiffs have a personal right 
under the Fourteenth Amendment to the Constitution of 
the United States to individual relief in cases of this kind 
where it is feasible to grant such relief.

Wherefore, plaintiffs respectfully move the Court that 
they be granted a new trial and/or that the Court grant 
them appropriate relief from the operation of said judg­
ment, insofar as the judgment fails to grant individual re­
lief to said four infant plaintiffs, Henry C. Maxwell, Jr., 
Benjamin Grover Maxwell, Cleophus Driver, and Deborah 
Ruth Clark; to the end that the defendants be required 
to admit said four infant plaintiffs to the respective schools 
to which they applied as prayed in the complaint filed 
in this cause.

Respectfully submitted,

Z. A lexander L ooby and 
A von N. W illiams, Jr.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall and 
J ack Greenberg 

10 Columbus Circle 
Suite 1790

New York 19, N. Y.
Attorneys for Plaintiffs

Motion for New Trial and for Appropriate Belief



139a

Filed: December 12, 1960

The plaintiffs in the above entitled case, respectfully 
move the Court for immediate further relief upon the 
grounds and in the particulars as hereinafter stated:

1. That the defendants have not given “ specific notice 
to the parents of all school children of the zone in which 
their children fall for the purpose of attending classes” , 
as required by the order of this Court, filed 23 November 
1960; but, on the contrary, defendants have merely fur­
nished a form letter with an attached paper designated 
“ Transfer Request” to some school children through their 
teachers in some of the schools, with no assurance that 
said letters or the attached paper will reach the parents 
of said school children.

Two of said letters, addressed to the plaintiff, Mrs. Annie 
P. Driver and her spouse, together with the attached 
“ Transfer Requests” , are appended hereto and marked as 
Collective Exhibits “ A ” to this motion.

2. That the aforesaid form letters and attached “ Trans­
fer Requests” , are misleading and are manifestly designed 
to mislead parents and to evade said order of this Court 
approving a plan for general desegregation, in that:

(a) Nowhere in said letter or “ Transfer Request” is it 
stated that parents are given notice “ of the zone in wdiich 
their children fall for the purpose of attending classes” , as 
provided in said order of the Court.

(b) The aforesaid letter states that a child may be “ trans­
ferred January 20,1961 to the newly zoned school” , whereas 
under the modified plan approved by the Court and the 
order of the Court providing for general desegregation of 
the first four grades on said date, it is not necessary for 
children in these grades to be “ transferred” to the school in 
which they “ fall for the purpose of attending classes” ; but,

M o tio n  o f  Plaintiffs fo r  F urther R e lie f



140a

on the contrary, any application for transfer would and 
should be made “ from the school of their zone to another 
school” .

(c) The aforesaid design and effect of misleading parents 
and encouraging continued maintenance of racial segrega­
tion is further shown by the said “ Transfer Request” form, 
which purports on its face not to be an application for 
transfer to a school other than the school in which the 
children “ fall for the purpose of attending classes” as or­
dered by this Court, but rather purports to be a request to 
be “ T ransferred”  to the school for which the child is zoned. 
Said misleading and evasive design and effect is emphasized 
on said “ Transfer Request” form by capitalization and 
underlining of the word “transferred” , as indicated above, 
and by placing first on said form as an alleged “ choice” , 
the following: “ I request permission for this child to stay

Motion of Plaintiffs for Further Relief

(name of school)

3. Said letters of alleged notification are further mis­
leading and evasive in that they tend to indicate to parents 
of school children that they have no right to attend school 
on a racially desegregated basis as provided in the plan 
approved by this Court; but that, on the contrary, applica­
tion for transfer to the newly zoned school must be made 
on the attached “ Transfer Request” , which “ transfer” might 
or might not be granted by the Board in its discretion.

4. The requirement that said “ Transfer Request” be re­
turned to defendants “ within three days” , as contained in 
the aforesaid letters, is both ambiguous and unreasonable, 
and is designed to encourage and foster hasty action on 
the part of parents whom said form letters and “ Transfer 
Requests” reach.



141a

W herefore, plaintiffs respectfully move the Court that 
they be granted immediate and further relief as follows:

(1) That the aforesaid letters and “ Transfer Requests” 
sent out by the defendant Board of Education and Super­
intendent of Schools to school children through school teach­
ers employed by defendants, be declared by the Court to 
be void and of no effect because same are not in compliance 
with the aforesaid order of the Court, filed 23 November 
1960 or the plan thereby approved by the Court.

(2) That the defendants be required by the Court to 
prepare new notices which shall notify all parents directly 
of the desegregation plan which has been approved by the 
Court, and of the school in which their children fall for the 
purpose of attending classes; and that if any form is en­
closed therewith relating to application for transfer, that 
the application specifically indicate that same is for trans­
fer from the school zone in which the children fall for the 
purpose of attending classes, to some other school.

(3) That before any such new form of notification or 
for transfer application be sent out to the parents as afore­
said, copy of same be furnished to counsel for plaintiffs 
and approved by the Court after hearing if same be found 
objectionable to the plaintiffs.

Z. A lexander L ooby and 
A von N. W illiams, Jr.

327 Charlotte Av.
Nashville 3, Tenn.

T httrgood M arshall and 
Jack Greenberg 

10 Columbus Circle 
Suite 1790

New York 19, N. Y.
Attorneys for Plaintiffs

Motion of Plaintiffs for Further Relief



142a

EXHIBIT “A ” TO PLAINTIFFS’ MOTION

(Letterhead of County Board of Education, 
Davidson County)

December 5, 1960

Mr. & Mrs. Cleophas Driver 
1626 Emerald Dr.
Nashville, Tennessee

Be: Christopher C.
Name

Grade: 1 2 3 (4)

Dear Parents:

The Davidson County Board of Education has been given 
a court order to fix zones for all schools regardless of race. 
You will note that the attached Transfer Request will indi­
cate the school the child is now attending and the school 
to which the child is zoned.

Please mark Transfer Request for either, (1) Permission 
to remain in the school he is now attending or, (2) Be trans­
ferred January 20, 1961 to the newly zoned school.

After you have signed the Transfer Request and marked 
an X  by your choice, return it to your child’s teacher within 
three days.

Consideration will be given to your choice indicated on 
the Transfer Request.

Sincerely yours,

/ s /  J. E. Moss 
J. E. Moss 
Superintendent

J E M  :mb



143a

TRANSFER REQUEST (GRADES 1-4)

Christopher C. Driver Date: Dec. 5, 1960 Grade: 4 
Name of Student

1626 Emerald Dr.
A ddress

School now attending: Haynes

School zone in which yon live: Bordeaux

PLEASE CHECK ONE

□  I request permission for this child to stay at
Haynes

(name of school)

□  I request permission for this child to be T ransferred 
on January 20, 1961 to Bordeaux

(name of school)

Exhibit “A ” to Plaintiffs’ Motion

S ignature of P arents

R emarks :



144a

(Letterhead of County Board of Education, 
Davidson County)

December 5, 1960
Mr. & Mrs. Cleophas Driver 
1626 Emerald Dr.
Nashville, Tennessee

Be: Deborah Darnell 
Name

Grade: 1 (2) 3 4

Dear Parents:

The Davidson County Board of Education has been given 
a court order to fix zones for all schools regardless of race. 
You will note that the attached Transfer Bequest will indi­
cate the school the child is now attending and the school 
to which the child is zoned.

Please mark Transfer Bequest for either, (1) Permission 
to remain in the school he is now attending or, (2) Be trans­
ferred January 20, 1961 to the newly zoned school.

After you have signed the Transfer Bequest and marked 
an X  by your choice, return it to your child’s teacher within 
three days.

Consideration will be given to your choice indicated on 
the Transfer Bequest.

Sincerely yours,

/ s /  J. E. Moss 
J. E. Moss 
Superintendent

Exhibit “A ” to Plaintiffs’ Motion

JEM :mb



145a

TRANSFER REQUEST (GRADES 1-4)

Deborah Darnell Driver Date: Dec. 5, 1960 Grade: 2 
N ame of Student

1626 Emerald Dr.
A ddress

School now attending: Haynes 

School zone in which yon live: Bordeaux

PLEASE CHECK ONE

□  I request permission for this child to stay at
Haynes

(name of school)

□  I request permission for this child to be T r a n s f e r r e d  
on January 20, 1961 to Bordeaux

(name of school)

Exhibit “A ” to Plaintiffs’ Motion

S ignature of P arents

R emarks :



146a

Filed: December 13, 1960

The defendants, and each of them, for further answer 
to the complaint filed in this cause against them and pur­
suant to the order of Court entered November 29, 1960, 
and answering say:

As respects the allegations set forth in Section 8 of the 
complaint, these defendants admit that prior to the order 
of the Court heretofore entered they had been operating a 
compulsory racially segregated school system in and for 
the County of Davidson, State of Tennessee, but would 
further show to the Court that effective with the commence­
ment of the Second Semester in January of 1961, and under 
the plan heretofore submitted and approved as modified by 
this Honorable Court, such school system will thereafter 
cease to be a racially segregated school system on a gradual 
or graduated basis. These defendants admit that the school 
system operated by them has consisted of schools attended 
by white children, staffed by white teachers and white prin­
cipals and white sustaining personnel. These defendants 
deny that they have maintained a “ secondary” system of 
colored schools or Negro schools, but would show, if it be 
pertinent, that such schools are not a secondary system 
of schools, but a system wherein the curriculum, material, 
facilities and personnel are selected with the same degree 
of care as that used in the schools which heretofore have 
been for white students only. These defendants admit that 
such schools have been staffed entirely by Negro personnel.

As respects those portions of the complaint heretofore 
filed set forth in Section 10 (b) not heretofore answered, 
these defendants deny that the assignment of school per­
sonnel on the basis of race and color is predicated on the 
theory that Negro teachers, Negro principals and other 
Negro school personnel are inferior to white teachers, 
principals and other white school personnel, as charged in

S u p p lem en tal A nsw er



147a

the complaint, and, on the contrary, would show to the Court 
that such Negro teachers, Negro principals and the like 
are paid comparable wages to those of the white personnel 
and that the average pay of such Negro personnel is 
greater than that of the white personnel so that there is 
not now and has never been any insistence on the part of 
these defendants as respects the superiority or inferiority 
of one group of teachers, principals and personnel as con­
trasted with the other. On the contrary, these defendants 
have, in accordance with good educational practices, as­
signed all school teachers, school principals and other 
school personnel on the basis of what was best for the stu­
dents and the educational system of the County. In making 
such assignments a multitude of factors are considered, 
to-wit, educational training, family background, residence, 
including rural and urban, personality, character, ability, 
religious affiliations, parent-teacher relationship and those 
intangible factors which in the judgment of the School 
Board must be considered in order to promulgate the best 
school system possible for the better education of all stu­
dents, be they Negro or white. In addition to actual teach­
ing, all school personnel must have the confidence of both 
the children and the parents and must engage in any well- 
rounded system in counselling and guidance with both the 
students and their parents. To the extent that race has a 
bearing upon these various factors aforesaid, such must be 
considered in the assignment of school personnel.

These defendants further deny that the plaintiffs herein 
have any right to appear before this Honorable Court as 
respects the assignment of school personnel, no member of 
the class constituting such personnel having voiced a com­
plaint. These defendants further insist and would show to 
the Court that the assignment of school personnel is one 
which in the interest of a good educational system must be

Supplemental Answer



148a

left with the County Board of Education and that such is 
true as respects both white and Negro students so that no 
rights of the complainants or the class they represent, 
either constitutional or otherwise, are affected or infringed 
thereby.

These defendants would further show to the Court that 
any attempt at this time by this Honorable Court, or any 
other court, to usurp the functions of the school board in 
the assignment of teachers would lead to a complete dis­
ruption of the school system to the detriment of both Negro 
and white students throughout the County, would adversely 
affect the orderly integration of the school system in ac­
cordance with the plan heretofore approved by this Honor­
able Court and would work to the disadvantage of all 
students in the public schools of the County.

These defendants adopt the allegations and statements 
of fact set forth in their answer heretofore filed in this 
cause, and all allegations of the original complaint not 
hereinbefore admitted, explained or denied in this answer 
or in the original answer heretofore filed are here and now 
expressly denied.

And now having fully answered, these defendants pray 
that they be hence dismissed, subject only to the previous 
orders of this Court in this matter.

Shelton L uton 
County Attorney 
for Davidson County, Tennessee 

Davidson County Courthouse 
Nashville 3, Tennessee

H arlan D odson, Jr.
1106 Nashville Trust Building 

Nashville 3, Tennessee 
Attorneys for Defendants

Supplemental Answer



149a

Excerpts From Transcript of Hearing, 
January 10, 1961

—70—
J oseph R. Garrett, called as a witness in behalf of the 

defendants, being first duly sworn, was examined and testi­
fied as follow s:

Direct Examination by Mr. Dodson:

Q. For the record, please state your name? A. Joseph 
R. Garrett.

Q. Mr. Garrett, your age? A. Thirty-nine.
Q. Your residence? A. Davidson County.
Q. Your occupation? A. Attendance teacher in charge 

of child welfare and attendance, Davidson County Board of 
Education.

*  # *  #  #

—71—
*  *  #  # #

Q. Now, I want to get, then, to the question of the notice 
following the decree of this Court and the adoption of the

—7 2 -
plan, what did you then do with respect to school zones and 
what part did you plan in it? A. We followed the Court 
order to establish zones. My assistant, Mr. Higgins and 
with the cooperation of other staff members, Mr. Detchon, 
of the research department, Mr. Turner, Director of Trans­
portation was consulted, and we therefore set out to estab­
lish these zones which had never been established around 
the Negro schools.

Q. Were those zones established with regard to race or 
without regard to race of the students?

The Court: There is nothing before the Court on 
that.



150a

Mr. Dodson: Well, that is preliminary, really, to 
my next question.

By Mr. Dodson:

Q. They were established in accordance with a directive 
without regard to race ? A. That is right.

Q. All right. Now— A. Certainly.
Q. When that had been done, then what did you do with 

respect to seeing what children were affected? A. We 
immediately obtained the names of those children that would 
be affected and started to work on notifying the parents of 
these children.

—73—
Q. How many did you find would be affected, approxi­

mately? A. Two hundred and eighty-eight White children 
and 405 Negro children of grades 1 through 4 became af­
fected in this new zoning.

Q. Did you then attempt to do anything with respect to 
notification of the parents of those affected ? A. Yes, sir, 
we consulted with our attorneys and formulated notices and 
letters to give these people information relative to their 
zone that they are now in.

Q. And I believe the first letter that went out, dated 
December 5, 1960, with the transfer request attached, was 
the one that I went over with you in its entirety, changed 
in some respects and approved and told you to send it. Is 
that right, sir ? A. That’s right.

Mr. Dodson: If Your Honor please, I offer this.
The Court: Let it be exhibited and made a part 

of the record.
Mr. Dodson: All right, sir, we file that as De­

fendant’s Exhibit No. 2.

Joseph R. Garrett—for Defendants—Direct



151a

The Court: Hand that to me and I will mark it.

(The document referred to was received in evi­
dence as Defendant’s Exhibit No. 2.)

By Mr. Dodson:
—74—

Q. Now, Mr. Garrett, that form that you used—do you 
have one there in front of you so that you might refer to 
it as we go along ? If you don’t, I will get you one. A. All 
right, sir.

Q. That form that you used provides for it to— How 
was it sent out, first, to the parents? A. It was sent out to 
the— We had conferences with the principals and they, in 
turn, had conferences with their teachers, and it wms sent 
by the teachers to the parents—by the child to its parents.

Q. All right, sir. How do you send all other notices to 
parents in the public school system? A. Of zone changes 
and so forth, when they become necessary, it is usually indi­
cated on their transfer ordinarily, which the child carries 
to its next school.

Q. Well, I mean, how do you generally get messages, 
general messages to parents? Is it by means of the chil­
dren? A. Most every time. We have to use that system.

Q. It is a lot less expensive? A. That’s right.
Q. And a lot more complete, isn’t it? A. It facilitates 

things, and it is more effective.
Q. Now, I notice you requested the parents to sign that. 

Is that right ? A. That is correct.
—75—

Q. Why did you do that? A. We wanted to make sure 
that every parent knew of their new school zone.

Q. All right, sir. Did that letter and notice set out what

Joseph B. Garrett—for Defendants—Direct



152a

the new school zone was? A. That’s right. We filled that 
ont at our office.

Q. Now, this particular letter went only to those who 
were affected by virtue of the zone changes. Is that cor­
rect? A. That is correct.

Q. All right, sir. Now, it has two different places to 
indicate an optional choice. Is that correct, sir? A. That 
is right.

Q. All right, sir. What is the first one? What is it desig­
nated for? A. Request permission for the child to remain 
at the school it is now attending.

Q. In the absence of some request for the child to remain 
in the school that it was then attending, what would have 
happened? A. Will you please state that again?

Q. The child had now been zoned to another school. Is 
that right? A. Right.

Q. Now, in the absence of some request from the parent
—76—

for the child to remain where the child was, what would 
have happened to that child? A. That child would auto­
matically become in that zone.

Q. Automatically come in the other zone? A. That’s 
right.

Q. All right. So that had to do, then, with the request 
for not being placed in the zone that you would otherwise 
have to go to. Is that correct? A. That is correct.

Q. And I asked you that because I will get back to it in 
a few minutes.

Now, the other one had to do with what? A. Request 
permission for the child to be transferred on January 20, 
1961.

Q. Now, the use of the word “ transfer” is there. What 
does that word designate in the Davidson County and other

Joseph R. Garrett—for Defendants—Direct



153a

educational systems! A. Well, “ transfer”  as required by 
our state registers, and so forth, any child leaving one 
school and going to another school is called a transfer and 
must be so listed and so recorded in the state register.

Q. You have to advise the State Department of Educa­
tion of a transfer, do you not? A. That is right.

—77—
Q. Regardless of the reason that the child goes from one 

school to the other? A. That’s right.
Q. Whether it has anything to do with the Court order 

or not? A. It is on that final report at the end of the 
year how many transfers we had. Those are listed sepa­
rately.

Q. Now, then, the second box has also the word “ per­
mission” or something to that— What is the word used 
there? A. “Request permission.”

Q. “ Request permission.” All right, sir, I want to know 
why in our discussion out there, we used the words “ re­
quest permission.” What happens, in other words, when a 
child is transferred from one school to another during the 
school year? What right do they have under the existing 
law? A. They have to make some indication that they 
want to move, either orally, or verbally, or written or other­
wise. We have to know or have something to initiate this 
move of this child.

Q. Suppose that under normal zoning, not having to do 
with this case at all, a child is removed from one school 
zone and placed in another school zone, does that child have 
any right to hearings? A. Oh, yes.

—78—
Mr. Williams: I object to leading questions, if 

Your Honor please, to have this gentleman testify 
as to what the rights of the child are.

Joseph R. Garrett—for Defendants—Direct



154a

Joseph R. Garrett—for Defendants—Direct 

By Mr. Dodson:
Q. Well, have you had any hearings about children being 

moved? A. Yes, we have in the past.
Q. Long before this case got in this Court? A. Yes, sir.
Q. It had nothing to do with race or anything else for 

that matter? A. That is right.
Q. All right, sir. Now, of those that were sent out, this 

particular form, did you have any calls, or not, requesting 
clarification from any of the parents as to what you meant? 
A. There were calls, I think a few to the principals.

Q. All right, sir. A. They clarified it or they, in turn, 
asked us and we then clarified it through them. I think it 
is very clear, to start with.

Q. How many of these did you get back by virtue of using 
this system? A. We got back every one except one.

—79—-
Q. All of them except one with an indication and a sig­

nature? A. That’s right.
Q. Is that correct? A. That is correct.
Q. All right, sir. Now, do you recall who that was? A. 

It was the Driver children. The Driver parents did not 
return theirs.

The Court: How many were sent out in all?
The Witness: Two hundred and eighty-eight, plus 

405.
The Court: Plus 405. All right.

By Mr. Dodson:
Q. Six hundred ninety-three? A. Six hundred ninety- 

three.
Q. And you got back 692? A. That is correct.



155a

Q. Now, before you knew how many you were going to 
get back, what had you planned as your next step as to 
those that you didn’t hear from? A. We had planned to 
notify them then by mail and by securing the addresses and 
addressing the addresses on the envelope and mailing to 
that particular parent.

Q. I want to ask you this: Out at the central office, do 
you keep the parents’ names and addresses, or is that kept

—80—
at the schools, or where? A. All the current records are at 
the school. We have the graduate records and maybe those 
that are transferred out of the state, but we do not have a 
complete record at our office.

Q. And then when you originally intended, your original 
plan, to use the United States mail and then if you didn’t 
hear, what were you going to do? A. We would then give 
a special notice to that particular parent.

Q. All right, now, when you got back all except one, did 
you go through the second step (that is, using ordinary 
mail) or did you go on to the third step using registered 
mail? A. We just went ahead and used registered mail, 
since there was only one family involved, and we wanted to 
make sure that family was notified. It wTas so few involved, 
why, we used registered mail.

Q. And I want to ask you if there was then sent by 
registered mail a letter to the Driver parents? A. Yes, sir; 
it was.

Q. With the same sheet attached? A. (Nodding affirma­
tively.)

Q. For both of the children of the Drivers? A. Yes, 
sir.

—81—
Q. And did you get a United States return receipt for 

the delivery of that letter? A. Yes, sir.

Joseph R. Garrett—for Defendants—Direct



156a

Q. So do you now have in your files either the signed 
statement of the parents that they have gotten the notice 
or this registered return receipt from everybody affected? 
A. That’s right.

Q. Do you need to retain this, or can you file this (show­
ing document to the witness)? A. I can file it.

Mr. Dodson: We would ask, then, that this be 
made Defendant’s Exhibit No. 3, may it please the 
Court.

The Court: Let it be admitted.
Mr. Dodson: Letter to the Drivers dated Decem­

ber 19, 1960, and return receipt attached.

(The document referred to was received in evi­
dence as Defendant’s Exhibit No. 3.)

By Mr. Dodson:

Q. Now, Mr. Garrett, on all of those who requested that 
their children be permitted to remain in the same school 
so that, in effect, they would not be going to the school 
to which they were zoned, did the Board of Education act 
on those requests? A. Yes, they did.

—82—
Q- Were the parents advised of the action? A. They 

have been advised that their transfer or request to remain 
at that school has been approved.

Q. By letter, or how? A. By letter.
Q. And the date of the letter? A. The letter is January 

the 6th.
Q. 1961? A. Yes.
Q. Do you have a form of that letter? A. Yes, sir.
Q. Will you file that, then, as Defendant’s Exhibit No. 4? 

A. Yes.

Joseph B. Garrett—for Defendants—Direct



157a

Mr. Williams: May we see that?
Mr. Dodson: Yes, I will give you a copy, here. I 

thought you had it.
The Court: Let it be admitted.

(The document referred to was received in evi­
dence as Defendant’s Exhibit No. 4.)

By Mr. Dodson:

Q. Now, then, what did you do with respect to those who 
wanted to go to the school in which they were zoned and 
which, according to your records, would be transfers? Did

—83—
you give them any communication? A. Yes, we did. We 
gave them a letter giving them more or less directions to 
turn in their books and check, clear their textbook record 
and whatever other materials that they needed to check 
in at their particular school, so that they would get ready 
to clear out January the 20th.

Q. Do you have a copy of that? A. (Handed document 
to counsel.)

Q. Will you file that letter with the blanks ? The blanks 
were filled in, of course? A. Oh, yes; they were filled in.

Q. All right. Will you file that letter as Defendant’s Ex­
hibit No. 5? A. Yes.

The Court: Let it be admitted.

(The document referred to was received in evi­
dence as Defendant’s Exhibit No. 5.)

By Mr. Dodson:

Q. Now, then, subsequently (I don’t know that it is sub­
sequently, but in any event) I had first advised you, I be-

Joseph R. Garrett—for Defendants—Direct



158a

lieve, that these were all the letters we needed to send, 
hadn’t I? A. That is correct.

Q. Did I change my mind about that? A. Yes, sir; you 
did.

—84—
Q. And tell you you had to send them to everybody? A. 

Yes, sir.
Q. Did you send them to everybody? A. Yes, sir. They 

are in the process now. They have already left our office 
and they are in the process of being—everyone being noti­
fied, the remaining group.

Q. And that is going to the people who are still in the 
same zone that the new zoning didn’t affect in the least? 
A. That’s right.

Q. Does it serve any useful purpose that you know of? 
A. No, I cannot see— In fact, I can see where it can act­
ually hurt us, because—or hurt desegregation in the fact 
that it may get some people aroused that are not affected 
really.

The Court: This goes to everybody?
Mr. Dodson: Yes, sir, even though they are not 

affected in the least.

By Mr. Dodson:

Q. Do you have a copy of that letter? A. (Handed docu­
ment to Mr. Dodson.)

Q. Will you file that as Defendant’s Exhibit No. 6, and 
I believe there are what, 45,000 or so of these that you have

—85—
to send? A. Forty-five, plus or minus. I couldn’t give you 
an exact figure on that.

Joseph R. Garrett—for Defendants—Direct



159a

The Court: Let it be admitted as Defendant’s 
Exhibit 6.

(The document referred to was received in evi­
dence as Defendant’s Exhibit No. 6.)

The Court: Now, this was sent after this motion 
was filed, wasn’t it! It is in the process of being 
sent now?

Mr. Dodson: It is in the process of being sent now. 

By Mr. Dodson:

Q. I believe the notification to you was before the mo­
tion, was it not, or do you recall? A. I don’t recall, but 
we—as soon as we could get to it. I would say that, we 
had—

Q. You took care of the urgent ones first? A. We have 
been working overtime now to even get the others.

The Court: It was sent January 10, 1961. It’s 
dated January 10th?

Mr. Dodson: Dated January 10th.

By Mr. Dodson:
Q. Has it actually gone out from the schools, or do you

- 8 6 -
know? A. It is going out today.

Q. Going out today. Could you get to it any sooner? A. 
No, we could not. We had the holidays, and schools were 
closed, and we have had very few operating days, actually, 
since that time.

Mr. Dodson: You may examine.
The Court: Cross-examine.

Joseph B. Garrett—for Defendants—Direct



160a

Cross Examination by Mr. Williams-.

Q. Mr. Garrett, you are familiar with the plan which was 
proposed by the Board to this Court? A. I think so.

Q. You had a part in the preparation of that plan? A. 
Well, I had a part, yes.

Q. Are you familiar with paragraph 1 of that plan which 
states that compulsory segregation based on race is abol­
ished in grade 1 of the Davidson County schools for the 
scholastic year beginning September ’61, and so forth? A. 
Yes, sir.

Q. Then, Mr. Garrett, why was it that this letter did not 
inform the parents, even the affected parents that you sent 
it to, that compulsory racial segregation was abolished and 
that they, therefore, had the right to attend schools under 
nonracial zoning?

#  *  *  #  #

—88—
*  # #  # #

Q. I will ask you, Mr. Garrett, why you did not, in your 
letter, state that you were giving the parents specific notice 
of the zone in which their children now fall for the purpose 
of attending classes? A. I would think that my letter 
states that.

Q. Will you refer me to some point in there where, ac­
cording to your interpretation, your letter states that? It 
certainly doesn’t state it literally. A. In our letters to 
parents, we have found that you have got to be as brief as 
possible.

Joseph R. Garrett—for Defendants—Cross

The Court: Let me see that first letter. I think 
there is something in there, the one that had the 
form attached to it.



161a

Mr. Dodson: Here it is. Exhibit No. 2.
—89—

Mr. Williams: I attached one as an exhibit to my 
motion, if Your Honor please, the Drivers’.

The Court: Yes. What is your last question there, 
why you did not do what ?

Mr. Williams: Counsel had stated that all that 
they were trying to do was to follow the direction of 
the Court to give specific notice to the parents of the 
zone in which their children fall for the purpose of 
attending classes. I think the language of the Court 
was “ to the parents of all school children of the zone 
in which their children fall for the purpose of at­
tending classes.”

By Mr. Williams:

Q. Now, nowhere in this letter, Mr. Garrett, can I find 
anything like that. And I am asking you, sir, if you will 
point out to me some part of the letter that you construe as 
being that! A. Do you understand that we filled these 
forms in and stated Bordeaux School? We stated the 
school.

Q. Is your answer to the question that the fact that you 
attached a—this transfer request constitutes a compliance 
with that order of the Court? A. Yes. It’s filled in prop­
erly. It does. Of course, the blank form, no, but we filled 
those in and stated very specifically the grade. We even

—90—
circled the grade, if you will note there at the top, which 
indicates that grade 1, 2, 3, 4 had been desegregated, as 
ordered by the Court.

Q. Mr. Garrett, was it your understanding that under the 
plan and under the Court’s order that children who were

Joseph R. Garrett—for Defendants—Cross



162a

living in the zone in which they fall for the purpose of 
attending classes under this plan would have a right to 
attend that school? A. Yes, they would have a right.

Q. Well, will you kindly, then, if you please, sir, explain 
why you have down in the final paragraph here, “ considera­
tion will be given to your choice indicated on the transfer 
request” ? A. Well, knowing that a lot of them, as you 
stated even in the last hearing, a lot of them would request 
not to be transferred, would request to attend the school 
they are now in. So, therefore, we gave them that opportu­
nity, and also this request form did more. It gave us an 
opportunity to make—to get things ready, to organize, to 
have conferences and hope for an orderly desegregation 
January the 23rd. It was a study. You have to plan these 
things.

Q. Well, now, Mr. Garrett, but you have it just 
reversed, your forms, though. You have it so that a parent 
would understand that he was transferring his child to the 
zone in which his child falls for the purpose of attending 
classes, and that you must approve that, do you not, sir, on

—91—
these two documents taken together?

Mr. Dodson: May it please the Court, I am going 
to object to this line of examination. It is purely 
argumentative. The papers speak for themselves. 
Whether they are clear, whether they comply with the 
Court’s order, or don’t comply with the Court’s order, 
is not in the opinion of this man. It is in the opinion 
of the Court. I have given my opinion about it, be­
cause I was the one that approved it and thought in 
fairness to the school staff and board they should not 
be charged with it. But whether or not it does is a

Joseph B. Garrett—for Defendants—Cross



163a

decision for Your Honor, and what this man thinks 
about whether it does, it seems to me, is totally im­
material.

The Court: Of course, the Court has to finally 
decide the question, but any enlightenment that he 
might give the Court or any explanation about it 
would be helpful, I ’d say.

Mr. Williams: That’s all I ’m asking him, if Your 
Honor please. I would like his interpretation.

The Witness: Would you think that our letters 
that we sent out, which w’e stated gave directions to 
that parent that made a request to go to this White 
school? We didn’t tell him he would have to get a 
transfer. We told him to check his books in, but he

—92—
is still considered a transfer. Our state records or 
register, if you are familiar with that, it requires 
that child to be so-called a transfer and must be put 
a “ W ” and a transfer on the re-entering register in 
the same administrative unit.

By Mr. Williams:

Q. Mr. Garrett, directing your attention to the second 
paragraph of your letter, in which you state, “ Please mark 
a transfer request for either (1) permission to remain in 
the school he is now- attending,” now, that refers to remain­
ing in the segregated schools, doesn’t it? A. Yes, sir.

Q. “ or, (2) be transferred January 20, 1961, to the newly 
zoned school.” Now, the newly zoned school refers to the 
desegregated school, doesn’t it? A. We did not say “per­
mission.” We just said, “be transferred.”

Q. Yes, sir. But now you want to change your statement, 
do you not, sir, that you didn’t tell him he’d have to be

Joseph B. Garrett—for Defendants—Cross



164a

transferred? A. It is indicated as a transfer, yes, because 
lie is leaving one school and going to another.

Q. Yes, sir. And in your final paragraph of that letter 
you stated, “ consideration will be given to your choice in­
dicated on the transfer request,”  did you not, sir? A. Yes.

-—93—
Q. Would you, under your interpretation, construe that 

as indicating to the parent that you would have to approve 
either of these things? A. Well, we knew that more of 
them would ask to remain, or at least we thought they 
would, which it turned out that way.

Q. I am not asking as to your motive, but it is true that 
this last paragraph of the letter indicates that you would 
have to approve either of those things, doesn’t it? A. Not 
official board approval. It’s just consideration, such as 
planning, and so forth, and getting ready for that child 
to enter this White school. We might need a teacher.

Q. Now, Mr. Garrett, will you cite me to the state law or 
the state regulation which requires that on this notice that 
you were ordered to give here by the Court you were re­
quired to state to the child who was being rezoned that he 
was being transferred to the rezoned school? A. Well, it’s 
not a state directive, I suppose, but—I don’t suppose I can. 
But he must be listed out— I don’t suppose I could cite him 
any specific wording on that at this time.

—94—
Q. And even if there were such a state administrative 

directive, that would not require you in this letter to mis­
lead the parent by making him think he was being trans­
ferred.

Mr. Dodson: Object to the question, may it please 
the Court.

Joseph B. Garrett—for Defendants—Cross



165a

Mr. Williams: All right, sir, I will withdraw the 
question, if Your Honor please.

By Mr. Williams:

Q. Now, you are Director of Child Welfare and At­
tendance? A. Yes, sir.

Q. Mr. Garrett, you have overcrowding at many, many, 
many schools, do you not, in your school system? A. That 
is true.

Q. Yes, sir. And where a transfer of a child is indicated 
on account of some valid administrative reason, the fact 
that a school is overcrowded does not necessarily mean 
that he cannot possibly be admitted to that school, does it? 
A. No, sir.

Q. Now, you said that you had several calls to principals 
asking for explanation of these forms? A. Only a few, I 
said.

—95—
Q. Only a few? A. I think one or two or three cases, 

very few. I think this letter must have been rather clear.
Q. Well, how many Negro children stayed in the new 

zone? How many Negro children under your provision 
transferred to the newly zoned school? A. Fifty-one have 
indicated that they would like to attend the White school 
in their zone.

Q. Well, Mr. Garrett, how, then, can you be so sure that 
your letter was clear? A. Well, as previous records indi­
cate, about 10 per cent of those eligible usually attend 
White schools, as you have indicated even in some state­
ments before, so it figured out just about correct, about 10 
per cent.

Q. Well, that 10 per cent figure came from Nashville 
where they had an even worse system of notification than

Joseph R. Garrett—for Defendants—Cross



166a

you had, didn’t they? Sir? A. I don’t know anything— 
I ’m not familiar with the Nashville system too well, but 
that is their system of notification.

Q. And, as a matter of fact, presumably the Court 
ordered this notification in an attempt to make sure that 
that was correct. Is that true? A. I don’t know why they 
did that.

Q. But you still felt like if you got the 10 per cent, that 
made—that this notice was clear? A. Well, we got a little

- 9 6 -
over 10 per cent. Maybe we did a pretty good job there.

The Court: How many were there ?
The Witness: Fifty-one out of 405, which runs 

about 12 to 15 per cent.

By Mr. Williams:

Q. Let me ask you, Mr. Garrett, why did you put first, 
“ permission to remain in the school which you are now at­
tending” and put second, “ be transferred to the newly 
zoned school” ? A. Well, I think that is just a matter— 
Either one could have been listed. I had that not in mind. 
The people and different ones helped to formulate the letter. 
Our lawyers approved it and helped with some of the word­
ing. I don’t think that would have been a factor either way, 
that is, which order they came in.

Q. That just fell naturally? A. Because it stated so 
plainly what it was doing.

Q. All right, stated so plainly. It is your interpretation 
that this letter “ advises any parent of his right to attend a 
desegregated school” ? A. Yes, of those affected.

Q. Where is the word “ desegregated” in this letter, or in 
the transfer request? A. Well, I am sure that the people

Joseph R. Garrett—for Defendants—Cross



167a

Joseph B. Garrett—for Defendants—Cross

—97—
that are living there will know that school will be desegre­
gated.

Q. You just assume that? A. Surely.
Q. One more question, Mr. Garrett. Why is it that on 

the transfer request directing your attention to the second 
choice which you have designated as, “ I request permission 
for this child to be transferred on January 20, 1961, to” 
(Name of school). Why is it that you have the word “ trans­
ferred” in capital letters underlined? A. Because that 
child will— that child will become a transfer and must be 
transferred on all registers and must be given said transfer 
in order to clear books and grade placement. That teacher 
might not know the grade that that child is in. He needs 
something to take along with him to this new school.

Q. The parent wouldn’t be the one who would transfer 
those books, would he? A. He would see that his child 
turned them in at the proper school.

Q. Yes, sir; but it was your plan to send this second 
letter, which you have sent, then, informing the parent that 
it was necessary for his child to see the principal and have 
his records transferred. Isn’t that correct, sir? A. I think 
that is good administrative— We are trying to inform the

—9 8 -
people as to what direction to go in.

Q. Yes, sir. In view of that, however, it was unnecessary 
to include the word—to magnify the word “ transferred” or 
even include it in your original notification giving the 
parent a choice of remaining in a zone to which he is 
assigned and calling that a transfer. That wasn’t necessary, 
was it, Mr. Garrett? A. Well, it could have been left out, 
I assume, and have had the same weight.



168a

Q. Would you agree that it would have been much clearer 
in terms of a choice if a parent were informed that under 
your plan, segregation in these grades was abolished, that 
he now had the right to attend the school in the zone in 
which he fell for purposes of attending classes and that if 
he wished, according to the terms of your plan, he could 
make a transfer to the school that he is now attending? A. 
I think the term “ transfer” there indicates even to the 
average man on the street, that is, moving from one school 
to the other, the reason we used the word “ transfer.” Even 
the Negro child moving, they still speak of getting their 
transfer from said school.

Q. And you plan or hope to follow the same notice in the 
future in giving these notices at the beginning of the year, 
I assume, Mr. Garrett. Is that correct? A. We will be 
instructed by our Board of Education, I suppose, on that.

—99—
Q. Mr. Garrett, why did you tell the parent that he had to 

return this within three days? A. Well, on—various 
notices go out. We know if you say a week or ten days, 
they will get in the wastepaper— We had a few lost as it 
was and had to replace them. We know the quicker we can 
get them back— They will lose them. We had to replace 
some. And then, too, time was running short on us. We got 
these things back, and then we had to do some study and 
preparation. The other departments of the Board of Edu­
cation, Mr. Wright and his department, I am sure had work 
—or will work them here after we know how many are 
coming.

Q. You plan to continue in the future requiring them to 
be returned in three days? A. Well, time was an element 
here; whereas, it may not be in the next case.

Q. Mr. Garrett, will you concede that of the some 250—

Joseph R. Garrett—for Defendants—Cross



169a

No. That would be some 340 Negro parents who, under 
your representation to the Court, have now elected to re­
main in the school in which they remain might very well 
not ever know that the Court not only ordered rezoning, but 
approved a desegregation plan? You will concede that that 
might be true under these notices, won’t you? A. No.

— 100—

Q. You won’t concede that? A. No, sir.
Q. Tell me how you can be assured that these parents 

know that? A. Because it stated the school zones to which 
they were zoned in a very simple form, to me.

Q. I see. Did you have any calls from Negro parents, or 
do you know? A. Well, of course, some calls come to our 
office when we are out, as we are today, but to my knowl­
edge, we have not.

Q. Now, this method of notification, you sometimes mail 
notices directly to people, don’t you? A. Yes, when time is

Q. You didn’t feel this was of sufficient importance to 
mail it directly to the parents? A. Well, we felt, too, 
that we could—since time was an element, that we would 
get our notices back and be ready to make preparation for 
January 20th; whereas, some of those notices would be 
trickling in even all the way up to the 23rd.

Q. You had card addresses on all the parents, didn’t you, 
in the principals’ office?

—103—
#  *  #  #  #

Mr. Williams: What I am attempting to show is 
that on September 2 ,1 believe it was, when Reverend 
and Mrs. Maxwell took their two boys to Glencliff 
High School, their children were registered there by

Joseph B. Garrett—-for Defendants—Cross



170a

Colloquy

the principal without any trouble at all, and they 
were informed that the only question was whether

—104—
they would go to Clencliff or Antioch.

The Court: That is in the record without a doubt. 
I remember that distinctly.

Mr. Williams: If it is positive that that is in the 
record, I don’t need to call Reverend Maxwell.

The Court: Do you recall?
Mr. Dodson: I have heard it about ten times. I 

don’t know who put it in and I don’t care, but I will 
agree that that is what happened, if it has anything 
to do with this case.

#  *  #  #  *



171a

This cause came on to be heard before the Honorable 
William E. Miller, District Judge, without the intervention 
of a jury, on January 10, 1961, upon the entire record, and 
especially upon the motion for further relief and the motion 
for new trial and for appropriate relief heretofore filed by 
plaintiffs, upon the merits of the cause as to the issues 
heretofore reserved by the Court, upon the motion to inter­
vene in the cause filed by Porter Freeman, individually and 
in behalf of others, the testimony of witnesses heard in 
open court, and briefs and arguments of counsel, from all 
of which the Court finds and holds as follows:

F indings of F act

1. With respect to the notices furnished by the defen­
dants to parents of school children affected by the deseg­
regation plan heretofore approved and the parents of all 
other children attending the schools in Davidson County, 
the Court finds that such notices are not confusing or mis­
leading and further finds that there has been no showing 
of any confusion or misleading as a result of the form of 
the notices.

2. The Court finds that to grant the request of the four 
individual plaintiffs, Cleophus Driver, Deborah Ruth Clark, 
Henry C. Maxwell, Jr. and Benjamin Grover Maxwell to 
be admitted to schools as exceptions to the plan approved 
by the Court would in effect destroy the plan in this locality.

3. The Court finds that teachers and sustaining personnel 
are assigned to the schools based upon their particular 
aptitude, qualifications, background and other factors, all

F indings o f  Fact, C onclusions o f  Law and Judgm ent

Filed: January 24, 1961



172a

of which are considered by the Board, and that one of these 
factors has been race.

4. The difficulties and problems which will be encoun­
tered in making the transition from a segregated system to 
a nonsegregated system would be enhanced and complicated 
if the Court should at this time require the assignment of 
teachers and supporting personnel in the schools of the 
system on a basis different from that which has heretofore 
been followed. It would in all probability lead to a situa­
tion where a plan which would otherwise be successful and 
would operate smoothly and harmoniously would be im­
paired and rendered unworkable.

Conclusion's of L aw

1. The Board of Education acted in good faith in pre­
paring the notices to parents under the desegregation plan 
and in mailing and distributing them. The School Board 
and the attorney representing the School Board and all 
of the defendants acted in good faith in undertaking to 
carry out the order of the Court and the Court holds that 
they did so in substantial effect.

2. The notices to parents heretofore furnished by de­
fendants to said parents under the desegregation plan 
were adequate. The Court finds no objection to them.

3. The notices to parents should be given to those who 
are affected by said plan of desegregation and not to any­
one else, but the form of the notice in the future should be 
submitted to opposing counsel in advance of its mailing, 
giving them sufficient time to file objections with the Court;

Findings of Fact, Conclusions of Law and Judgment,
January 24, 1961



173a

and the Court will impose that requirement, believing that 
it is reasonable.

4. With respect to the request of the four individual 
plaintiffs, Cleophus Driver, Deborah Ruth Clark, Henry C. 
Maxwell, Jr., and Benjamin Grover Maxwell, to be ad­
mitted to schools as exceptions to said desegregation plan, 
the Court is of the opinion that to grant such exceptions 
would be in effect to invite the destruction of the very plan, 
which the Court has held is for the best interest of the 
school system of Davidson County. It is not a plan which 
is designed to deny the constitutional rights of anyone. It 
is a plan which is designed to effect an orderly, harmonious, 
and effective transition from a racially segregated system 
to a racially nonsegregated system of schools, taking into 
account the conditions existing in this particular locality. 
And the Court cannot see how these individual plaintiffs 
who brought this action are or would be entitled to any 
different treatment from any other children who attend 
the schools of Davidson County and are members of the 
class represented by the plaintiffs.

5. With respect to the issue reserved by the Court on 
the merits, as to whether or not there is any violation of 
the rights of the plaintiffs or of those represented by the 
plaintiffs where teachers are assigned in the County School 
System on the basis of race or where race is used as a 
factor in making assignments of teachers, the Court cannot 
go so far as to agree with the argument that this question 
has been finally settled by the decision in the Brown cases. 
But the Court does entertain the view that this question is 
a serious question under the Equal Protection Clause of 
the Fourteenth Amendment. Particularly is this true when

Findings of Fact, Conclusions of Law and Judgment,
January 24, 1961



174a

the Court considers the fact that a plan has been approved 
for Davidson County which includes a very liberal transfer 
provision. When this provision, although it is on a volun­
tary basis, is coupled with a policy (and the Court is not 
now finding that this policy exists in Davidson County) 
which would assign teachers on the basis of race, then a 
serious question is presented to the Court as to whether 
there is not actually being thereby perpetuated the very 
condition which the Supreme Court said could not be per­
petuated, and that is a segregated system of public schools. 
The Court is required to view the matter in terms of the 
entire school system, and in terms of the quality of educa­
tion which the students are entitled to receive.

6. The Court finds that it is not necessary to determine 
the question relative to the assignment of school teachers 
and other personnel at this time for the reason that the 
Court does not believe (even if it should now hold and de­
clare that the plaintiffs do have the right to attend a school 
system where race is not one of the factors considered in 
the assignment of teachers) that an injunction should issue 
at this time.

7. In the opinion of the Court, it is the better and wiser 
course for the Court to follow, even if the foregoing rights 
were declared as contended for by the plaintiffs, to with­
hold the granting of an injunction until the plan has had 
an opportunity to operate for a substantial period of time. 
The school authorities should have the benefit of experi­
ence in dealing with the operation of integrated schools. 
For these reasons, in the exercise of the Court’s discretion, 
the Court would deny injunctive relief in this respect at this 
time.

Findings of Fact, Conclusions of Law and Judgment,
January 24, 1961



175a

8. This case will remain on the docket of the Court, and 
the Court will retain jurisdiction of the case during, the 
jjeriod of transition ; and the question with respect to the 
assignment of teachers, principals, and sustaining person­
nel can be renewed by the plaintiffs at a later, date, and 
will be taken up and considered at that time, after the plan 
has had an opportunity to be operated for a substantial 
period of time.

9. The motion to intervene filed by Porter Freeman in­
dividually and in behalf of others, is not well taken for 
the reasons, first, that it comes too late; second, that it 
is contrary to the plan which the Court has already ap­
proved; and third, that it contemplates putting into effect 
a plan which has specifically been held to be unconstitutional 
by this Court and by the Court of Appeals of the Circuit. 
For these reasons the motion to intervene is not well taken 
and will be denied.

Judgment

It is accordingly Ordered, A djudged and Decreed as 
follows:

1. That the relief prayed for in the motion for further 
relief filed by plaintiffs be and the same is denied, with 
the exception that the form of the notices to parents in 
the future are directed to be mailed by defendants to coun­
sel for plaintiffs in advance of mailing, so as to give them 
sufficient time to file with the Court objections to the form 
of said notices.

2. The aforesaid notices to parents will be given to those 
who are affected by said plan of desegregation heretofore 
approved by the Court and not to anyone else.

Findings of Fact, Conclusions of Law and Judgment,
January 24, 1961



176a

3. The motion for a new trial and for appropriate relief 
filed by plaintiffs is overruled and denied.

4. Injunctive relief with respect to the issues heretofore 
reserved by the Court concerning assignment of teachers, 
principals, and sustaining personnel in the schools on the 
basis of race is denied at this time; and the Court further 
reserves ruling with respect to the assignment of teachers 
and other school personnel, including the right of school 
children or their parents to raise such question.

5. This case will remain on the docket of the Court, 
and the Court will retain jurisdiction of the case during 
the period of transition from a racially segregated to a 
racially desegregated school system. The question with 
respect to assignment of teachers, principals, and sustaining 
personnel may be renewed by the plaintiffs at a later date. 
It may be taken up and considered at that time after the 
plan has had an opportunity to be put into operation for 
a substantial period of time.

6. The motion to intervene filed in this cause by Porter 
Freeman is overruled and denied.

To the foregoing action of the Court in denying their 
motion for further relief and their motion for new trial 
and for appropriate relief, and in denying the relief prayed 
for in the complaint with respect to said issues heretofore 
reserved by the Court, the plaintiffs respectfully except.

This the 24 day of January, 1961.

Findings of Fact, Conclusions of Law and Judgment,
January 24, 1961

W m. E. Miller 
United States District Judge



177a

Notice of Appeal

Filed: February 20, 1961

Notice is hereby given that the plaintiffs, Henry C. Max­
well, Jr., and Benjamin Grover Maxwell, by next friend, 
Reverend Henry C. Maxwell, Sr., and Mrs. Flora Max­
well; Deborah Ruth Clark, by next friend, Joe E. Clark 
and Mrs. Floy Clark; Jacqueline Davis, Shirley Davis, 
George Davis, Jr., Robert Davis, and Rita Davis, by next 
friend, Mrs. Robbie Davis; Robert Rickey Taylor, by next 
friend, Robert Taylor and Mrs. Stella Taylor; Reverend 
Henry C. Maxwell, Sr., Mrs. Flora Maxwell, Joe E. Clark, 
Mrs. Floy Clark, Mrs. Robbie Davis, Robert Taylor, and 
Mrs. Stella Taylor, hereby appeal to the Circuit Court of 
Appeals for the Sixth Circuit from the judgment entered 
in this action on the 23rd day of November, 1960, and from 
the judgment denying plaintiffs’ motion for new trial and 
appropriate relief, and denying other relief to plaintiffs, 
entered in this action on the 24th day of January, 1961.

Z. A lexander L ooby and 
A von N. W illiams, Jr.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall and 
J a c k  Greenberg 

10 Columbus Circle 
Suite 1790

New York 19, New York 
Attorneys for Plaintiff s-Appellants