Goss v. Knoxville, TN Board of Education Brief in Opposition to the Petition for Writs of Certiorari to the US Court of Appeals for the Sixth Circuit

    IN T H E

SUPREME COURT OF THE UNITED STATES,

O C T O B E R  T E R M ,  1962,

J O S E P H I N E  GO SS et al,,
Petitioners,

v,
T H E  BOARD O F  E DUC AT IO N O F  T H E  CIT Y O F  

K N O X V I L L E ,  T E N N E S S E E ,  et al.

H E N R Y  C. M A X W E L L ,  JR. ,  et al., 
Petitioners,

v,
T H E  C O U N T Y  BOARD O F  E D U C A T IO N OF 

DAVIDSON C O U N T Y ,  T E N N E S S E E ,  et al,

BRIEF
In Opposition to the Petition for Writs of Certiorari 

to the United States Court of Appeals 
for the Sixth Circuit.

K,  HARLAN D O D S ON ,  JR. ,
1106 Nashville Trust Building, 

Nashville 3,  Tennessee, 
Attorney for Respondents, The County 

Board of Education of Davidson 
County, Tennessee, et al.

S t. Louis Law Pbinting Co., Inc., 415 N. E ighth  Street. C E ntral 1-4477.



INDEX.

Pa
Questions presented ......................................................
Statement of the case...................................................
Argument ......................................................................

Question No. 1 ...........................................................
Question No. 2 ...........................................................

Conclusion ...................................................................

Cases Cited.
Board of Education v. Groves, Fourth Cir., 261 F. 2d

527 ............................................................................
Boson v. Rippy, 285 F. 2d 43 (Fifth Cir. 1960).........12,
Brown v. Board of Education, 349 U. S. 294............ 14,
Clemons v. Board of Education of Hillsboro, Ohio, 

228 F. 2d 853........................................................... 16,
Kelley v. Board of Education, 270 F. 2d 209 (Cert, de­

nied, 361 U. S. 924)............ .................. 5,7,8,12,13,
Orleans Parish School Board v. Bush, Fifth Circuit, 

242 F. 2d 156...........................................................
Robert W. Kelley et al. v. Board of Education of the 

City of Nashville, 361 U. S. 924, 80 S. Ct. 293, 4 
L. ed. 2d 240....................................................

ge
2

2

8

8
14
18

18
13
1 8

17

15

15

13



IN T H E

SUPREME COURT OF THE UNITED STATES.

O C TO B ER  T E R M ,  1962.

J O S E P H I N E  GO SS et a!,,
Petitioners,

v,
T H E  BOARD O F  E DUC AT IO N O F  T H E  CIT Y OF 

K N O X V I L L E ,  T E N N E S S E E ,  et al.

H E N R Y  C. M A X W E L L ,  JR. ,  et al., 
Petitioners,

v,
T H E  C O U N T Y  BOARD O F  E D UC AT I ON  O F  

DAVIDSON C O U N T Y ,  T E N N E S S E E ,  et al.

BRIEF
In Opposition to the Petition for Writs of Certiorari 

to the United States Court of Appeals 
for the Sixth Circuit,

The respondents, The County Board of Education of 
Davidson County, Tennessee, et al., file this their brief in 
opposition to the petition for writs of certiorari to the 
United States Court of Appeals for the Sixth Circuit.



—  2 —

QUESTIONS PRESENTED.

As respects these respondents, the questions are:
1. Whether the petitioners, Henry 0. Maxwell, Jr., et al., 

are deprived of their rights under the Fourteenth Amend­
ment by the approval of a desegregation plan adopted 
for the public schools in Davidson County and approved 
by the District Court and the Circuit Court of Appeals, 
which provides among other things that transfer applica­
tions will be given consideration when such transfer is 
practicable and consistent with sound school administra­
tion and when “ good cause therefor is shown” and which 
defines as one of those grounds of “ good cause” :

“ 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 different 
race.”

2. Were the petitioners entitled to disrupt the desegre­
gation plan approved by the District Court and by the 
Circuit Court for the Davidson County school system so as 
to have exceptions made in their favor?

STATEMENT OF THE CASE.

Following the initial hearing in the case of Maxwell v. 
The County Board of Education and pursuant to the di­
rection of the District Court to formulate a plan for the 
orderly desegregation of the Davidson County schools, the



—  3 -

County Board of Education of Davidson County, Tennes­
see, appointed a special committee of its membership, 
to-wit, Ferriss C. Bailey, Frank White and S. L. Wright, 
Jr., which committee worked with the staff of the Board 
of Education to compile and submit the plan (R., Max­
well 64a).* This plan was then submitted to the entire 
Board of Education of Davidson County, which adopted 
it and submitted it to the Court (R., Maxwell 64a).

The plan, as submitted originally by the Board, abol­
ished segregation based on race for Grade One in the 
Davidson County School System for the scholastic year 
beginning September, 1961, with an additional year to be 
desegregated each subsequent year thereafter; a zoning 
plan was adopted based upon the location of the school 
buildings, transportation facilities, scholastic population, 
etc., without reference to race; subject to exceptions neces­
sary in the administration of the school system, thereafter 
the students in each desegregated grade would attend the 
school designated for their zone, unless transferred pur­
suant to their parents’ request for good cause; transfers 
were permitted to be applied for and consideration given 
when made by parents or persons standing in the relation­
ship1 of parents, provided good cause for such was shown 
and such transfer was practicable and consistent with 
sound school administration; and among other conditions 
upon which transfers could be granted by request, the 
plan provided that where a student would be required to 
attend a school where such student was in the extreme 
race minority, transfer requests would be considered (R., 
Maxwell 69a-71a).

Following a full hearing the Court accepted the plan 
as submitted by respondents, excepting that the Court re­

* 'References to the appendix of petitioners in the Maxwell case 
will he followed with a suffix “a” and references to respondents’ ap­
pendix with the suffix “b”.



quired the first four grades, rather than the first grade, 
to be desegregated effective with the commencement of the 
January, 1961, Term, in order to cause the Davidson 
County plan to become current with the plan in the educa­
tional system of the City of Nashville (R., Maxwell 132a).

The plan as proposed by the Respondents and as ap­
proved by the Court, with modifications as above noted, 
was supported by the testimony of persons experienced 
in the operation of the school systems within Davidson 
County, Tennessee. The first of these witnesses, the Hon­
orable Ferriss C. Bailey, had served as the Chairman of 
the Committee of the School Board for the formulation of 
the plan. Mr. Bailey is an attorney and has served on the 
Board of Education of Davidson County for more than 
seventeen years, and prior to that time served on the 
Board of Education of the City of Nashville, located 
within Davidson County, for a period of six years (R., 
Maxwell lb-3b). Mr. J. E. Moss has served for twelve 
years as the Superintendent of the Davidson County 
Schools and prior to that had served for twenty-five years 
as a teacher and supervisor in the Davidson County school 
system (R., Maxwell 3b-4b). Mr. William H. Oliver has 
served as Superintendent of the school system of the 
City of Nashville for the last two years plus, and prior 
to that had served as a principal and teacher in the school 
system of the City of Nashville for a period of thirty- 
three years (R., Maxwell 19b). Mr. Floyd Detchon has 
served for twenty-seven years with the school system of 
Davidson County in the various capacities of principal 
and attendance and research supervisor (R,, Maxwell 25b). 
Mr. Melvin B. Turner has served in the school system of 
Davidson County for twelve years as Superintendent of 
Transportation (R., Maxwell 28b). The witness, Mr. Em­
mett Pettie, has served for a period of fourteen years with 
the Davidson County school system as a teacher and 
school psychologist (R., Maxwell 35b-36b). Mr. A. E.

—  4 —



•—  5 —

Wright, who likewise testified in support of the plan, has 
served for a period of thirty-five years with the Davidson 
County school system as a teacher, coach, principal, super­
visor and assistant superintendent (R., Maxwell 44b-45b). 
The other witness offered by the respondents in support 
of the plan and who assisted in the work of the staff in 
formulation of the plan was Mr. Joseph R. Garrett, who 
has served for twelve years with the Davidson County 
system in child welfare and attendance (R., Maxwell 46b).

As contrasted with these witnesses who had had daily 
contact with both the community and the school system 
of Davidson County, the petitioners produced the testi­
mony of a Dr. Long, who had never taught or supervised 
in any public educational institutions in either Davidson 
County or elsewhere (R., Maxwell 227b); Dr. Eugene 
Weinstein, who had never taught or worked in or for or 
attended a public school in this area (R., Maxwell 41b); 
and Dr. J. Masuoka, whose experience was in general a 
study of race relations problems in Japan (R., Maxwell 
42b-44b).

There are two school systems in Davidson County, Ten­
nessee. One is the school system of the City of Nashville, 
which serves a school population of approximately 30,000 
pupils (R., Maxwell 19b-20b). The other school system 
is the school system operated by the respondent, County 
Board of Education of Davidson County, Tennessee, which 
serves that portion of Davidson County outside of the 
City of Nashville and serves a school population of ap­
proximately 47,000 pupils (R., Maxwell 77a). The City of 
Nashville School System Plan for gradual desegregation 
was approved by the same District Court as considered 
the instant case and was approved by the Circuit Court 
for the Sixth Circuit in the case of Kelley v. Board of Edu­
cation, 270 F. 2d 209 (Cert, denied, 361 IT. S. 924).

As appears from the report of the Special Committee of 
the Davidson County School Board working with the stall'



—  6 —

and from the testimony of the witnesses, there were many 
problems which had to be considered by the respondent, 
Board of Education, in order to formulate a plan which 
might work in Davidson County, Tennessee. One of the 
problems to be considered was the fact that the Davidson 
County School System was terribly over-crowded at the 
time and in fact and in spite of an active building pro­
gram, seventy portable or temporary buildings were being 
used to house the excess of pupils (R., Maxwell 7b, 15b- 
16b, 25b-26b). Out of the School System of Davidson 
County, forty-four of the schools would be affected by a 
desegregation plan (R., Maxwell 9b). Another factor was 
the concentrations of the Negro population and the white 
population in the County outside of the City, which would 
be the area served by the Davidson County School Sys­
tem (R., Maxwell 66a, 67a). In addition, the Davidson 
County School System offers transportation to its students 
residing more than one and one-fourth miles from the 
school attended, and any alteration of the existing school 
system would create transportation problems (R., Max­
well lOb-llb). The transportation problem was not only 
a problem of administration and operation of the school 
bus system, but likewise involved discipline on the buses 
where the driver was charged not only with the operation 
of the bus, and the safety of its operation, but the dis­
cipline of the children riding the bus, which disciplinary 
problems would increase with integration (R., Maxwell 
lOb-llb, 29b-30b).

Another important factor to the School Board, which 
was considered by it, was the custom in the community 
over many years of a segregated school system, which had 
to be overcome (R., Maxwell 14b, 17b, 18b) and the fact 
that friction would arise among the student bodies by too 
rapid a departure from the status quo (R., Maxwell 60a, 
67a).



In addition, educational wise any change of a school for 
any cause has an adverse effect on the pupil (R., Maxwell 
13b-17b, 21b), and precipitous action would cause com­
munity disturbances, property loss and grave adminis­
trative difficulties (R., Maxwell 65a). The School Board 
in preparing and offering the plan also considered the 
variance in achievement levels at hig'her school grade 
levels as between the Negro school population and the 
white school population and its effect on the entire school 
population and the educational system from an integrated 
system (R., Maxwell 16b, 18b, 22b, 37b-40b). Any change 
in the school system for any cause and for any reason re­
quires a great amount of administrative work, which is 
time consuming, and the greater the change the more time 
required to work out the administrative problems (R., 
Maxwell 17b).

Another factor which strongly influenced the Board in 
recommending the plan adopted, with certain modifica­
tions, by the District Court for orderly integration was 
that the City of Nashville plan, approved by the Circuit 
Court in the Kelley case, supra, was familiar to the resi­
dents of the area, the teachers in the school systems and 
the pupils in the school systems and had been accepted 
generally by the local populace (R., Maxwell 20b).

Based upon these factors this respondent, the County 
Board of Education of Davidson County, Tennessee, of­
fered a plan identical with the plan previously offered by 
the City of Nashville and which had been in operation in 
the community for a period in excess of three years. The 
only real modification made by the District Court was to 
increase the number of grades to start off the plan from 
the first grade to the first four grades in order that the 
Davidson County plan might be coextensive in time with 
the City of Nashville plan.



—  8 — •

ARGUMENT.

QUESTION NO. 1.

Whether the petitioners, Henry C. Maxwell, Jr., et al., 
and deprived of their rights under the Fourteenth Amend­
ment by the approval of a desegregation plan adopted for 
the public schools in Davidson County and approved by 
the District Court and the Circuit Court of Appeals, which 
provides among other things that transfer applications 
will be given consideration when such transfer is prac­
ticable and consistent with sound school administration 
and when “good cause therefor is shown” and which de­
fines as one of those grounds of “good cause”:

“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 different race.”

The transfer provisions of the plan approved by the 
District and Circuit Courts here challenged by the peti­
tioners is identical with the section of the plan approved 
in the case of Kelley v. Board of Education of City of 
Nashville, etc., 270 F. 2d 209. We do not feel that any 
clearer statement of the fallacy of the petitioners’ argu­
ment could be made than the statement made by the Sixth 
Circuit Court, speaking through Judge McAllister, com­
mencing at page 228 of that opinion, where the transfer 
provision is discussed and which, for the Court’s con­
venience, we here quote:



—  9 —

“ [6] We come, then, to the transfer provision of 
the plan, allowing the voluntary transfer of white and 
Negro students, who would otherwise be required to 
attend schools previously serving only members of 
the other race; and allowing the voluntary transfer 
of any student from a school where the majority of 
the students are of a different race. This provision 
does not fall within the ban of the maintenance of 
segregated public schools by cities where permitted— 
though not required—by statute, such as was con­
demned by the Supreme Court in Brown v. Board of 
Education, 347 U. S. 483, 74 S. Ct. 686, 98 L, Ed. 873. 
The district court, in the instant case, considered that, 
in accordance with the reasoning in Briggs v. Elliott, 
D. C. S. C., 132 F. Supp. 776, 777, the transfer provi­
sions did not violate the equal protection clause of 
the Fourteenth Amendment. In the Briggs case, it 
was declared, as we have heretofore mentioned, that 
the Supreme Court has not decided that the states 
must deprive persons of the right of choosing what 
schools they attend, but that all it has decided is that 
a state may not deny to any person, on account of 
race, the right to attend any school that it maintains. 
‘This,’ said the court, as we have previously quoted, 
on another aspect of this case, ‘under the decision 
of the Supreme Court, the state may not do directly 
or indirectly; but if the schools which it maintains 
are open to children of all races, no violation of the 
Constitution is involved even though the children of 
different races' attend different schools. * * *’ Ap­
pellants say that the transfer plan is only a scheme 
to evade the decisions of the Supreme Court. In 
Cooper v. Aaron, 358 IT. S, 1, 17, 78 S. Ct. 1401, 1409, 
3 L, Ed. 2d 5, it was said: ‘In short, the constitutional 
rights of children not to be discriminated against in 
school admission on grounds of race or color declared 
by this court in the Brown case, can neither be nulli-



—  10 —

fied openly and directly by state legislators or state 
executive or judicial officers nor nullified indirectly 
by them through evasive schemes for segregation 
whether attempted “ ingeniously or ingenuously.” ’ 
There is no evidence before us that the transfer plan 
is an evasive scheme for segregation. If the child 
is free to attend an integrated school, and his parents 
voluntarily choose a school where only one race at­
tends, he is not being deprived of his constitutional 
rights. It is conceivable that the parent may have 
made the choice from a variety of reasons—concern 
that his child might otherwise not be treated in a 
kindly way; personal fear of some kind of economic 
reprisal; or a feeling that the child’s life will be more 
harmonious with members of his own race. In com­
mon justice the choice should be a free choice, unin­
fluenced by fear of injury, physical or economic, or 
by anxieties on the part of a child or his parents. The 
choice, provided in the plan of the Board, is, in law, 
a free and voluntary choice. It is the denial of the 
right to attend a nonsegregated school that violates 
the child’s constitutional rights. It is the exclusion 
of children from such a school that ‘generates a feel­
ing of inferiority as to their status in the community 
that may affect their hearts and minds in a way un­
likely ever to be undone,’ as observed in Brown v. 
Board of Education, 347 U. S. 483, 494, 74 8. Ct. 686, 
691, 98 L. Ed. 873. Such may be the tragic result, 
when children realize that society is imposing a re­
striction upon them because of their race or color. 
The Supreme Court remarked in the foregoing case 
that the effect of the separation of students because 
of race was ‘well stated’ by the district court in the 
case, then on review, when it declared:

‘Segregation of white and colored children in pub­
lic schools has a detrimental effect upon the colored



—  11 —

children. The impact is greater when it has the 
sanction of law; for the policy of separating the races 
is usually interpreted as denoting the inferiority of 
the Negro group. A sense of inferiority affects the 
motivation of the child to learn. Segregation with 
the sanction of law, therefore, has a tendency to 
[retard] the educational and mental development of 
Negro children and to deprive them of some of the 
benefits they would receive in a racial [ly] integrated 
school system.’

Nevertheless, as stated in Brown v. Board of Edu­
cation, D. C., 139 F. Supp. 468, 469, 470, subsequent 
to the decision of the Supreme Court in the prior 
Brown case:

‘Desegregation does not mean that, there must be 
intermingling of the races in all school districts. It 
means only that they may not be prevented from 
intermingling or going to school together because of 
race or color.

‘If it is a fact, as we understand it is, with respect 
to Buchanan School that the district is inhabited by 
colored students, no violation of any constitutional 
right results because they are compelled to attend 
the school in the district in which they live.’

[7] While, in the instant case, the parent makes 
the choice for the small child, that is the only reason­
able method, if such a choice may be made. We see 
no deprivation of right, under the evidence before us. 
Doubtlessly, fewer Negro children, or their parents, 
will avail themselves of the transfer provisions, as 
grade after grade becomes integrated, and more Negro 
children attend such desegregated schools as time 
goes on. We are not informed by the record how 
much such attendance has increased with the addi­
tional desegregation that has taken place since the



—  12

hearing. But if it should appear, upon a showing, 
that there are impediments to the exercise of a free 
choice, and that a change should be made in the plan 
to carry out, in good faith, and with every safeguard 
to the children’s rights, the mandate of the Supreme 
Court, the district court, having retained jurisdiction 
during the entire period of the process of desegrega­
tion under the Board’s plan, shall make such modifi­
cation in its decree as is just and proper. On the 
record before us, the judgment of the district court 
does not deprive any of the children of equal protec­
tion under the Fourteenth Amendment.”

Certainly there is nothing in this record to indicate that 
there are any impediments to the exercise of a free choice 
by parents, but as pointed out by the Circuit Court in the 
Kelley case, the District Court has retained jurisdiction 
during the entire period of the process of desegregation 
under the plan, and in the event such should appear, the 
District Court could make such modification as became 
necessary.

Petitioners rely upon the case of Boson v. Rippy, 285 
F. 2d 43 (Fifth Cir. 1960). The ultimate result in that 
case we confess is in conflict with the decision of this 
Court in the Kelley case. A careful reading of the Boson 
case, however, and especially the supplemental opinion in 
the case, would indicate that the United States Court of 
Appeals for the Fifth Circuit actually deleted the trans­
fer provision from the plan because such would apply a. 
rule of law to the desegregated public schools from the 
Dallas School District different from that applicable to 
other public schools in the State of Texas. That question 
is not applicable here. On the question of classification 
according to race, the United States Court of Appeals for 
the Fifth Circuit said only that:



—  13 —

“ We are so doubtful of the validity of the provi­
sions of paragraph 6 that we think they should not 
be included in the plan.”

This doubt seems to have been predicated upon the 
notation by the three members of the Supreme Court of 
the United States who thought certiorari should be 
granted in the Kelley case in that the transfer provision 
constituted “ an absolute” ground for transfer of students.

Such a conclusion could result only from a failure to 
consider the entire plan. Section 4 of the plan as ap­
proved by the District Court in both this case and in the 
Kelley case (R., Maxwell 70a), provides only that transfer 
applications will be given consideration when such trans­
fer is practicable and consistent with sound school admin­
istration and when “ good cause therefor is shown.”

Section 5 then defines one of the “ good causes” and 
is the section complained of. This, however, does not 
make it an “ absolute” ground for transfer, but, on the 
contrary, means that it is a basis or ground which may 
be given “ careful consideration” by the school board and 
which may be the basis for transfer when such is prac­
ticable and consistent with sound school administration.

The Boson case further overlooks the fact that while 
three members of the Supreme Court of the United States 
desired to grant certiorari on the transfer provision, the 
majority of the Supreme Court did not desire to grant 
such certiorari and accordingly certiorari was denied when 
the identical question was before the Supreme Court of 
the United States in the case of Robert W. Kelley et al. v. 
Board of Education of the City of Nashville, 361 U. S. 924, 
80 S. Ct. 293, 4 L. ed. 2d 240.



-— 14 —

QUESTION NO. 2.

Were the petitioners entitled to disrupt the desegrega­
tion plan approved by the District Court and by the Cir­
cuit Court for the Davidson County school system so as 
to have exceptions made in their favor?

The effect of petitioners’ argument on Question No. 2 
is that any plan which does not immediately admit all 
Negroes who desire to attend desegregated schools is an 
invalid plan; this for the reason that if the particular 
petitioners are permitted to attend the school of their 
choice so would any other parties making application and 
thus the plan would be destroyed. Such was recognized 
by the District Court.

No challenge has been made of a year by year plan of 
desegregation as such. Therefore, we will not attempt to 
justify the same, although we feel from the evidence ad­
duced and as set forth in the Statement of the Case and 
as found by the Court, that such a plan was one which 
complied with the mandate of this Honorable Court for 
good faith compliance at the earliest practicable date, 
but recognizing the public interest.

We respectfully submit that unless this Honorable Court 
in the Brown case (Brown v. Board of Education, 349
U. S. 294), had recognized the necessity of flexibility in 
reconciling public and private needs this Court would have 
entered a decree immediately desegregating all classes in 
all public schools. On the contrary, this Court, speaking 
through Mr. Chief Justice Warren, said:

“ Traditionally, equity has been characterized by a 
practical flexibility in shaping its remedies and by a 
facility for adjusting and reconciling public and pri­
vate needs. These cases call for the exercise of these



—  15 —

traditional attributes of equity power.” (Emphasis 
ours.)

Thus we see that this Honorable Court recognized that 
some private individuals might not be satisfied with a plan 
which was adopted for the public good. Such was recog­
nized by the District Court in this case, as it was in the 
case of Kelley v, The Board of Education of the City of 
Nashville, etc., which was subsequently approved in 270 
F. 2d at 209.

Such was likewise recognized by the Court of Appeals 
for the Fifth Circuit in the case of Orleans Parish School 
Board v. Bush, Fifth Circuit, 242 F. 2d 156, in the follow­
ing language:

“ . . . a good faith acceptance by the school board of 
the underlying principle of equality of education for all 
children with no classification by race might well war­
rant the allowance by the trial court of time for such 
reasonable steps in the process of desegregation as 
appeared to be helpful in avoiding unseemly confusion 
and. turmoil.” (Emphasis ours.)

For the reason set forth in the Statement of the Case, 
which we will not restate, the Trial Court here found that 
reasonable time was necessary in the process of the de­
segregation in order to avoid confusion and turmoil.

Those experienced in education in the City of Nashville 
and Davidson County recognized that such a plan as was 
here offered was necessary in order to avoid turmoil and 
confusion. The only opposing evidence was the theoretical 
testimony of those individuals who, while they had studied 
the subject of race relations, had had no direct contact 
with, and were not familiar with from their own personal 
experiences, the situation in Davidson County. Either the



—  16 —

plan is a “ good faith compliance at the earliest prac­
ticable date” and should be approved without exceptions 
being made which would have the effect of disrupting the 
plan and destroying it as a plan or in the alternative the 
plan itself should be rejected by this Court in violation of 
the very principle which this Court has already estab­
lished. We submit that it is a good faith compliance 
when considering problems related to administration, 
arising from the physical condition of the school plan, the 
school transportation system, personnel, revision of school 
districts and attendance areas into compact units, as well 
as overcoming deep-seated customs of the area, and that 
an attempt by petitioners to in effect destroy such a plan 
because of the “ private” interest of a few individuals 
should not be permitted.

The District Court for the Sixth Circuit in the case of 
Clemons v. Board of Education of Hillsboro, Ohio, 228
F. 2d 853, pointed out that “ good faith compliance at the 
earliest practicable date” did not require an immediate 
transition, regardless of the practical problems involved, 
and recognized that such practical problems would exist 
and that the primary responsibility for the solution of the 
same was with the school authorities.

In view of these cases we feel that the citation to other- 
cases recognizing and approving desegregation on a year 
by year basis is not necessary. This case has been re­
tained in the District Court, as is proper. In the absence 
of some change in conditions and circumstances so as to 
require a change in the order of the District Court and a 
speeding up of the desegregation plan, frankness requires 
us to admit that it probably will be that some of the in­
dividual petitioners will not attend a desegregated school 
in the Davidson County system. This would be true in 
any instance where such a plan is adopted, and as pointed



17 —

out in the testimony of the Superintendent of Schools, the 
school board is the school board of all of the children and 
all in any given category must be treated alike. It thus 
results that if the relief sought by the petitioners were 
granted a plan which has already been found to be work­
able in the immediate area would in effect be destroyed.

The argument is made that other circuit courts have 
approved decisions granting individual litigants relief as 
exceptions to a general desegregation program (Peti­
tioners’ Brief, p. 24). Petitioners overlook the very clear 
distinction between those cases and the ease at bar, which 
was pointed out by Mr. Justice (then Judge) Stewart in 
the case of Clemons v. Board of Education, supra, where 
the distinction is noted between cases where racial segre­
gation on the part of the school authorities was required 
or permitted by the state and any change would require 
the uprooting of a system of education based upon decades 
of state custom and state law, on the one hand, and eases, 
such as the Clemons case, where segregation had been con­
trary to the law of the state for almost seventy years. 
This distinction is clearly set forth in the opinion at page 
859 in the following language:

“ In the cases recently decided by the Supreme Court 
racial segregation on the part of the school authorities 
was required or permitted by the states involved. The 
Court recognized in its second opinion in those cases 
that the transition to an integrated school system in 
such states would involve many difficult practical 
problems, varying in each locality, but in each locality 
requiring the uprooting of a system of education built 
upon decades of state custom and state law. . . .

By contract the segregation of school children be­
cause of their race has been contrary to the law of 
Ohio for almost seventy years. . . .  I think the ap­



-1 8  —

pellants were clearly entitled to injunctive relief as 
a matter of right in this case” (Emphasis ours).

Nor do the cases cited by petitioners in their brief re­
quire a different conclusion from that rendered by the 
District Judge. It is true that where the District Court 
has found that the admission of one or two students to 
classes not integrated under the plan would not adversely 
affect the plan, such exercise of discretion and recognition 
of responsibility by the district judge will not be sum­
marily overruled by the appellate court (See, for example, 
Board of Education v. Groves, Fourth Cir., 261 F. 2d 527). 
But where there is a reason, as there was here, and as 
found by the District Judge, that admission of the plain­
tiffs under an injunction would disrupt the plan, then the 
District Court has exercised its responsibility to determine 
whether the plan is reasonable in all its aspects, including 
the duty of determining whether an exception to the plan 
in a given case should be made.

CONCLUSION.

The District Court has approved a plan consistent with 
the mandate of this Court in the Brown case; a plan which 
experience has proven to be workable. The District Court 
has retained jurisdiction to insure that the plan does work 
and is not used to deprive any person of a constitutional 
right. What would appear to be a conflict between the 
circuits is not in effect a real conflict at all when fully 
considered, as herein pointed out. The questions sought 
to be raised by this petition are not of sufficient importance 
to justify granting of the writ and review of a decision 
so well considered by both the District and Circuit Courts.

Accordingly respondents respectfully submit that the 
petition for certiorari should be denied and the school



—  19 —

system of Davidson County permitted to continne its or­
derly integration under the direct scrutiny of the District 
Court.

Respectfully submitted,

K. HARLAN DODSON, JR.,
1106 Nashville Trust Building, 

Nashville 3, Tennessee,
Attorney for Respondents,

The County Board of Education 
of Davidson County, Tennessee, 
et al.