Calhoun v. Latimer Brief for Petitioners

    v

I n  the

Glmtrt of Up Inttfb States
October Term, 1963 

No. 623

F red S. Calh o u n , et at.,
Petitioners,

A. C. L atim er , et al.,
Respondents.

BRIEF FOR PETITIONERS

Constance B aker  M otley 
J ack  Greenberg

10 Columbus Circle 
New York, New York 10019

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

D onald L . H ollowell

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

Attorneys for Petitioners

N orman  A makeb 
A . T. W alden 
J . L eV onne Chambers 

Of Counsel



I N D E X

PAGE

Opinions B elow ...................................................................  1

Jurisdiction .........................................................................  2

Constitutional Provision Involved..................................  2

Question Presented ............................................................ 2

Statement .............................................................................  2

Argument

The Plan Erroneously Approved Below Does Not 
Conform to the Mandate of This Court; the Plan 
Desegregates Too Little, Too L ate..........................  7

Conclusion ...............   18

Table of Cases

Augustus v. Board of Public Instruction, 306 P. 2d 862 
(5th Cir. 1962) ............................................................. 5, 6, 9

Board of Public Instruction of Duval County v, Brax­
ton, 5th Cir., No. 20294, January 10, 1964 ....................  16

Brown v. Board of Education of Topeka, 347 U. S.
483 ......................................................................... ..... 2, 5, 7, 9

Brown v. Board of Education of Topeka, 349 U. S.
294 ......... ................... .................................. ...................2, 5, 9

Bush v. Orleans Parish School Board, 308 F. 2d 491 
(5th Cir. 1962) ....................................................... 5, 6,10,15

Cooper v. Aaron, 358 U. S. 1 ............................................ 5, 9

Evans v. Ennis, 281 F. 2d 385 (3d Cir. 1960) ............... 15



11

PAGE

Farmer v. Greene County Board of Education, 4th Cir.,
No. 9125 ........................................................................... 11

Goss v. Board of Education of the City of Knoxville,
373 U. S. 683 ....................................... ............................5,14

Goss v. Board of Education of the City of Knoxville,
301 F. 2d 164 (6th Cir. 1962), reversed on other 
grounds, 373 U. S. 683 ....................... ............................ 15

Green v. School Board of the City of Roanoke, 304 F.
2d 118 (4th Cir. 1962) .................................................... 11

Jackson v. School Board of the City of Lynchburg,
321 F. 2d 230 (4th Cir. 1963) ........................................  15

Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962) .......  11
Jones v. School Board of the City of Alexandria, 278 

F. 2d 72 (4th Cir. 1960) ..................................................5,11

Northcross v. Board of Education of the City of Mem­
phis, 302 F. 2d 818 (6th Cir. 1962) ...................5,11,12,13

Shuttlesworth v. Birmingham Board of Education, 358 
U. S. 101, affirming 162 F. Supp. 372 (N. D. Ala, 
1958) ................................................................................. 8

Watson v. City of Memphis, 373 IT. S. 526 .......................5,13

F edebal S tatute

United States Code, Title 28, §1254(1) ..........................  2

Othek  A uthorities

Bickel, The Decade of School Desegregation, 64 Colum­
bia Law Review 193 (1964) .......................................... 17

Southern Education Reporting Service, Statistical 
Summary of School Segregation—Desegregation in 
the Southern and Border States (1963-1964) ........... 7



In the

inprTmT (Emtrt nf tljr Hnttpit States
October Term, 1963 

No. 623

F eed S. Calh o u n , et al.,

—v.—
Petitioners,

A. C. L atim ee , et al.,
Respondents.

BRIEF FOR PETITIONERS

Opinions Below

The District Court’s opinion denying further relief and 
from which an appeal was taken to the court below is re­
ported at 217 F. Supp. 614 and printed in the record at 
page 156.

Prior Findings of Fact, Conclusions of Law, Orders and 
Judgments of the United States District Court for the 
Northern District of Georgia, Atlanta Division (R. 9, 18, 38, 
43, 47, 48, 160, 165) are reported at 188 F. Supp. 401 and 
188 F. Supp. 412.

The opinions of the United States Court of Appeals for 
the Fifth Circuit, modifying and affirming the decision of 
the District Court and denying petitioners’ petition for re­
hearing en banc are printed in the record at 229, 258 and 
reported at 321 F. 2d 302.



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
June 17, 1963 (R. 254). Application for rehearing en banc 
was denied on August 16, 1963 (R. 259). The petition for 
writ of certiorari was filed November 14, 1963 and granted 
January 13, 1964. The jurisdiction of this Court is invoked 
pursuant to 2S U. S. C. §1254(1).

Constitutional Provision Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

Question Presented

Respondent school authorities operate a biracial system 
which, under court order, now allows children to transfer to 
schools for the other race upon satisfying seventeen pupil 
assignment criteria, leaving the dual system otherwise in­
tact. This limited opportunity to transfer has been given on 
a twelve year descending grade-a-year basis and is now 
enjoyed by children in the 12th, 11th, 10th and 9th grades. 
In 1972 children will still have only this limited right. Does 
not Brown v. Board of Education impose upon respondents 
the affirmative duty to (a) reorganize the schools into a 
unitary non-racial system, and (b) to do so much more 
quickly than in twelve years?

Statement

For approximately four years subsequent to this Court’s 
decision in Brown v. Board of Education, of Topeka, 347 
U. S. 4S3, the public schools of Atlanta remained segregated,



3

while Negro parents vainly petitioned local school authori­
ties for redress (E. 4,163).

Then, on January 11, 1958, petitioners, parents of Negro 
school children, brought suit in the U. S. District Court for 
the Northern District of Georgia, seeking desegregation of 
Atlanta’s public school system. The Court found that a 
biracial school system existed; therefore, the Court ordered 
respondents to submit a plan for desegregation by Decem­
ber 1, 1959, which they did. The plan was approved by the 
District Court on January 20, 1960. 188 F. Supp. 401, 412.

The plan called for the imposition of a racial transfer 
procedure upon the existing biracial school structure (E. 
61-63). Individual transfer applications were to be judged 
by the Board on the basis of 17 pupil assignment criteria 
(E. 33-34). The plan was to commence in the 12th and 11th 
grades in September, 1961 and was to proceed on a grade-a- 
year basis, in descending order, thereafter (E. 47). All 
those students in grades below those in which the plan 
operated were to remain segregated.

Between May 1st and 15th, 1961, pursuant to the plan, 
129 Negro students in grades 11 and 12 returned applica­
tion forms for transfer to white high schools (E. 65). 
Of these, school authorities admitted 10 to four formerly 
all-white high schools (E. 68).

The pupil assignment criteria were applied only to those 
applicants, all Negroes, seeking transfer during the May 
lst-15th period to schools attended by pupils of the op­
posite race. All other applications for transfer, whites 
to white schools and Negroes to Negro schools, were con­
sidered “ informal” transfers and were made throughout the 
school year (E. 94-96).

On April 30, 1962, after the plan’s first year of operation 
petitioners moved the district court for further relief (E.



4

53). They claimed that the plan, which had been approved 
over their numerous objections, had not resulted in de­
segregation (R. 56-57). They prayed for not only a new 
plan to speed up desegregation, but for one providing 
prompt reassignment and initial assignment of all students 
on some reasonable non-racial basis, e.g., the drawing of 
a single set of attendance area lines for all schools without 
regard to race or color to replace the dual scheme of school 
attendance area lines for Negro and white schools. Peti­
tioners further claimed that the Brown case contemplated 
the reassignment of teachers on a non-racial basis and the 
elimination of all other racial distinctions in the operation 
of the school system (R. 56). In short, the petitioners 
sought integration of the dual school system into a unitary 
non-racial system, and with greater speed.

In September, 1962, 44 out of 266 Negro applicants were 
admitted to grades 10, 11 and 12 (R. 94). On November 
15, 1962, petitioners’ motion for further relief was denied 
(R. 156). 217 F. Supp. 014. The District Court (Hooper, 
District Judge) held (R. 157):

There is no disputing that discrimination had existed 
prior to the Order of this Court of January 20, 1960, 
and that the Order of that date was designed to elimi­
nate the discrimination over a period of years. Even 
plaintiffs’ counsel upon the original trial disclaimed 
any purpose of seeking to have “wholesale integration.” 
The only question then involved was the plan by which 
discrimination could be eliminated; a Plan was care­
fully prepared and adopted and no appeal taken. The 
Plan is eliminating segregation, but until it has com­
pleted its course there will of course still be areas 
(in the lower grades) where segregation exists. The 
Court is therefore at a loss to see how anything could 
be accomplished at this time by “ an order enjoining



5

defendants from continuing to maintain and operate 
a segregated biraeial school system”, for the Court has 
already taken care of that in its decree of January 
20, 1960.

Petitioners appealed to the Court of Appeals for the Fifth 
Circuit which (2-1),1 on June 17, 1963, affirmed.

The Court, per Griffin B. Bell, Circuit Judge, recognized 
that the “ bare bones” (R. 239) of the case was petitioners’ 
prayer for desegregation through the drawing of school 
zone lines for each school on a non-racial basis and the as­
signment of all children living in the zone to the school 
without regard to race or color. Judge Bell denied peti­
tioners’ prayer, saying (R. 240), “ the Atlanta plan of 
abolishment is one of gradualism by permitting transfers 
from present assignments.” Judge Bell found no incon­
sistency between his decision and the decisions of this 
Court in Brown v. Board of Education of Topeka, 347 U. 8. 
483; Brown v. Board of Education of Topeka, 349 U. S. 
294; Cooper v. Aaron, 358 U. S. 1; Watson v. City of 
Memphis, 373 U. S. 526; Goss v. Board of Education of the, 
City of Knoxville, 373 U. S. 683; or the decisions of his 
own circuit, Bush v. Orleans Parish School Board, 308 F. 
2d 491 (5th Cir. 1962); Augustus v. Board of Public In­
struction, 306 F. 2d 862 (5th Cir. 1962); or the decisions 
of the Fourth Circuit, Jones v. School Board of the City of 
Alexandria, 278 F. 2d 72 (4th Cir. 1960); or the decisions of 
the Sixth Circuit, Northcross v. Board of Education of the 
City of Memphis, 302 F. 2d 818 (6th Cir. 1962). Judge Bell 
concluded (R. 242-243) that “ the dual system will be en­
tirely eliminated when the plan reaches the first grade. . . . 
So considered, we hold that there is insufficient evidence 
on which to base a determination that the start made in the

1 The Court consisted of Judges Bell and Rives and David T. 
Lewis of the 10th Circuit, sitting by designation.



6

Atlanta schools is not reasonable, or that the plan is not 
proceeding toward the goal at deliberate speed.”

Circuit Judge Bichard T. Kives, in his dissent, found an 
inconsistency between the majority opinion and the prior 
applicable decisions of this Court, He also demonstrated 
that the opinion of the court was “ a backward step” (B. 
246) for the Fifth Circuit, which had previously required 
New Orleans, Louisiana and Pensacola, Florida to do far 
more toward insuring full compliance with this Court’s 
school desegregation decisions, Bush v. Orleans Parish 
School Board, supra, Augustus v. Board of Public Instruc­
tion, supra. He concluded that until a start was made in 
abolishing the dual system of schools, whereby all white 
children went initially to white schools and all Negro 
children initially to Negro schools, no plan of selective 
transfer from formerly Negro to formerly white schools 
would fully satisfy the requirements of the Brown decision. 
Moreover, Judge Kives concluded that the Atlanta Plan 
does not now meet the requirements of deliberate speed. 
In this regard he declared (B. 253) :

Enjoined as we are to give fresh consideration to the 
element of timing in these school cases by the Su­
preme Court’s latest pronouncement on the subject in 
[Watson v. City of Memphis, 373 U. S. 526] and, fol­
lowing the Watson decision, in Josephine Goss et al. v. 
Board of Education, City of Knoxville, Tenn., et al., 
[373 IT. S. 683], I cannot concur in a decision of this 
Court that takes a backward rather than a current, 
much less forward, step.

Behearing was denied (2-1) on August 16, 1963 (B. 258- 
259).

Petitioners filed a petition for writ of certiorari on No­
vember 14, 1963, which was granted on January 13, 1964 
(B. 260).



7

A R G U M E N T

The Plan Erroneously Approved Below Does Not Con­
form to the Mandate of This Court; the Plan Desegre­
gates Too Little, Too Late.

1. The Transfer Plan Is Not an Effective Vehicle 
for Desegregation Because It Preserves the 
Biracial School Structure.

The end result of Atlanta’s plan has been that in At­
lanta’s public schools, a decade after the first Brown deci­
sion, 145 out of a total of 56,000 Negro students have been 
permitted to attend school with 58,000 white students.2 In 
short, tokenism has been now superimposed upon so called 
separate but equal.3 * * Petitioners submit that tokenism does 
not satisfy the Fourteenth Amendment mandate of equal 
protection of the laws.

Prior to September, 1961, Atlanta had a dual school sys­
tem (R. 157). There was one system of schools for white 
pupils and a separate system of schools for Negro pupils. 
In September, 1961, a plan purporting to cure this con­
stitutional infirmity was instituted. The adequacy of this 
plan must now be examined by this Court in the light of 
this Court’s decisions.

2 Southern Education Reporting Service, Statistical Summary of 
School Segregation-Desegregation in the Southern and Border 
States (1963-1964), p. 17.

3 Separate and «wequal would be a more accurate characteriza­
tion, for the school facilities for Negroes are in fact unequal to 
those for whites. Negroes constitute 49% of the school population, 
but they have been allotted only 33% of the school buildings and 
40% of the teachers and principals; as a result, they suffer serious 
overcrowding in certain schools and have higher pupil-teacher
ratios (R. 101).



8

Petitioners start with the incontrovertible proposition 
that segregation in Atlanta’s schools exists unimpaired ex­
cept as modified by the racial transfer plan.4

The plan provides for transfers on an individual basis 
for those students who satisfy 17 pupil placement criteria 
(R. 33-34).5 Respondents judge the individual applications 
of Negroes, reject most,6 and permit a nominal number to 
transfer. In practice, the structure of segregation remains 
unaltered—with a new facade.

In theory, as well, the plan is devoted to the promotion 
of token desegregation. The theory is to place the burden 
of leveling the structure on each individual school child. 
The child must procure a transfer application, prepare and 
submit it. If rejected for any of a number of vague rea­
sons, the child must protest to the Board and then apply 
to the court for relief (R. 233). In court, the child must 
show a discriminatory application of the plan. It is pain­
fully apparent that the plan calls for a war of attrition, 
in which only the hardiest will be able to bear the burden 
of a contest with state power. Moreover, the theory not 
only depends upon enmeshing each child in an administra­
tive net, but depends as well upon clothing respondents— 
admitted wrongdoers—with practically unreviewable dis­
cretion over the quality and extent of their own reforma­
tion. The theory of the plan is to allow respondents to 
place a high price tag on the exercise of the constitutional

4 R. 61-63; Majority opinion, Footnote 4 (R. 240) ; dissenting 
opinion, Footnotes 4, 5 (R. 250-251).

5 The 17 criteria are identical with those of the Alabama Pupil 
Assignment Law upheld as constitutional on its face in Shuttles- 
worth v. Birmingham Board of Education, 358 U. S. 101, affirming 
162 F. Supp. 372 (N. D. Ala. 1958). Here, of course, the case 
involves the application of such a plan, not its surface plausibility.

6 119 out of 129 applicants were rejected in 1961 (R. 68); 222 
out of 266 applicants were rejected in 1962 (R. 94).



9

right to attend desegregated public school facilities; the 
theory is to recognize a paper, not a present, right. The 
theory works and the result is, not unexpectedly, a system 
of token desegregation.

This Court did not hold in Brown v. Board of Educa­
tion that the vice of total segregation could be cured 
by the device of token desegregation. This Court decreed 
the abolition of the biracial school system. That system 
retains its pristine strength today in Atlanta’s grades 1-8; 
in grades 9-12, the essential structure of the biracial school 
system perdures.

This Court’s decisions interdict the tokenism counte­
nanced by the Atlanta plan. Brown II  is perfectly explicit 
in its command that a prompt and reasonable start be made 
“ to achieve a system of determining admission to the public 
schools on a nonracial basis” (349 U. S. at 300-301). What 
Brown requires is elimination, not modified retention, of 
the biracial school structure. In this context, what was said 
in Cooper v. Aaron, 358 U. S. 1, 17, is significant:

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 nullified openly and directly 
by state legislators or state executive or judicial offi­
cers or nullified indirectly by them through an evasive 
scheme for segregation whether attempted “ ingen­
iously or ingenuously.” Smith v. Texas, 311 U. S. 128, 
132, 85 L. Ed. 84, 87, 61 S. Ct. 164.

The decision below also conflicts sharply with decisions 
in the Fifth Circuit and in the Fourth and Sixth Circuits.

Judge Rives, in dissent below, correctly noted that the 
instant decision is an unwarranted retreat from the posi­
tion taken in Augustus v. Board of Public Instruction, 306



10

F. 2d 862 (5th Cir. 1962) and Bush v. Orleans Parish School 
Board, 308 F. 2d 491 (5th Cir. 1962).

Both decisions unquestionably stand for the proposition 
that it is the dual school system itself which must be abol­
ished and that the window dressing of a transfer plan is not 
a permissible substitute for the outright abolition of the 
system.

In Bush, as here, the Court of Appeals was presented 
with a pupil placement system which purported to be a 
vehicle for school desegregation. In Bush, the court rightly 
exposed the system as a sham. The Court said:

This Court, like both Judge Wright7 and Judge Ellis,8 
condemns the Pupil Placement Act, when, with a fan­
fare of trumpets, it is hailed as the instrument for 
carrying out a desegregation plan, while all the time 
the entire public knows that in fact it is being used to 
maintain segregation by allowing a little token de­
segregation. . . . The Act is not an adequate transi­
tionary substitute in keeping with the gradualism im­
plicit in the “ deliberate speed” concept. It is not a 
plan for desegregation at all. 30S F. 2d at 499-500.

7 The Court set forth and approved Judge W right’s statement:
To assign children to a segregated school system and then 

require them to pass muster under a pupil placement law is 
discrimination in its rawest form. 308 F. 2d at 498.

8 The Court set forth and approved Judge Ellis’ statement:
. . .  It goes without saying that although “ [the] school 

placement law furnishes the legal machinery for an orderly 
administration of the public schools in a constitutional man­
ner,” . . . “ [the] obligation to disestablish imposed segrega­
tion is not met by applying placement assignment standards, 
educational theories or other criteria so as to produce the 
result of leaving the previous racial situation existing as it 
was before” . . .  It does no good to say that the pupil placement 
law is applied solely to transferees without regard to race 
when the procedure is so devised that the transferees are 
always Negroes. 308 F. 2d at 498.



11

Augustus is in accord. There it was said: “ There cannot 
be full compliance with the Supreme Court’s requirements 
to desegregate until all dual school districts based on race 
are eliminated” (306 F. 2d at 869).

Pupil placement plans superimposed upon biracial school 
structures have been similarly discarded in the Fourth9 and 
Sixth10 Circuits.

In Northeross, as here, the pupil assignment system con­
tinued. to assign Negroes to Negro schools and whites to 
white schools, except as modified by the transfer plan. The

9 Jones v. School Board of the City of Alexandria, 278 F. 2d 
72, 76 (4th Cir. 1960); Green v. School Board of the City of 
Roanoke, 304 F. 2d 118 (4th Cir. 1962).

It is possible that pupil placement plans or laws as a vehicle 
for school desegregation have some vestigial vitality in the Fourth 
Circuit, but their effectiveness for this purpose has been attenu­
ated by the requirement that transfers be freely given. Jeffers v. 
Whitley, 309 F. 2d 621 (4th Cir. 1962). The question in Jeffers 
was whether a system of racial assignments could cure the con­
stitutional infirmity of a biracial school system. The Court found 
that this could not be so if the system were not completely vol­
untary. The Court said:

[ I ] f  a voluntary system is to justify its name, it must, at 
reasonable intervals, offer to the pupils reasonable alternatives, 
so that, generally, those who wish to do so may attend a 
school with members of the other race. 309 F. 2d at 627.

In other words, transfers must be “had for the asking”  (309 
F. 2d at 628). The Jeffers solution still left the administrative 
burden on the individual school child to apply to the School Board 
for that to which he was entitled as of right. However, the Court 
threw doubt on this vestige of the pupil placement law by saying: 

There can be no freedom of choice if its [the transfer re­
quest’s] exercise is conditioned upon exhaustion of adminis­
trative remedies which, as administered, are unnegotiable 
obstacle courses. 309 F. 2d at 628.

Pending before the Fourth Circuit is the issue of whether the 
administrative burden may continue to be placed on each indi­
vidual school child to level the biracial school structure. See 
Farmer v. Greene County Board of Education, 4th Cir., No. 9125, 
now being reconsidered en hone.

10 Northcross v. Board of Education of the City of Memphis, 302 
F. 2d 818 (6th Cir. 1962).



12

School Board argued that the transfer provisions created 
a voluntary system and that therefore, there was no com­
pulsory segregation of the races. The Court of Appeals 
dismissed this and similar contentions saying (302 F. 2d 
at 823):

Minimal requirements for non-racial schools are geo­
graphic zoning according to the capacity and facilities 
of the buildings and admission to a school according to 
residence as a matter of right. “ Obviously the main­
tenance of a dual system of attendance areas based on 
race offends the constitutional rights of the plaintiffs 
and others similarly situated and cannot be tolerated.” 
Jones v. School Board of City of Alexandria, Virginia, 
278 F. 2d 72, 76, C. A. 4.

That Court concluded (302 F. 2d at 823):
Negro children cannot be required to apply for that 
to which they are entitled as a matter of right.

The reasons assigned for holding the transfer provisions 
an insufficient vehicle for reorganizing the schools on a non- 
racial basis were essentially practical. The reasons stemmed 
from an appreciation of the hard fact that shifting the ad­
ministrative burden of desegregation to each individual 
school child ineluctably results in token desegregation.

The Court found (302 F. 2d at 823):

Any pupil through both parents may request a trans­
fer, but in the final analysis it is up to the School 
Board to grant or reject it. Although an appeal may 
be taken into the courts it would be an expensive and 
long drawn out procedure with little freedom of action 
on the part of the courts. In determining requests for 
transfers the Board may apply the criteria heretofore



13

mentioned. None of these criteria is based on race, but 
in the application of them, one or more could always 
be found which could be applied to a Negro. The denial 
of the transfers herein referred to is significant of the 
practical application of the transfer provisions of the 
law.

In short, Northcross persuasively demonstrates that the 
responsibility for initiating and effectuating desegregation 
rests upon the school authorities and that these authorities 
cannot shift their responsibilities to others. Especially is 
that true when that shifting of responsibility operates to 
inhibit desegregation.

The short of petitioner’s submission is that the Atlanta 
plan is ineffective to transform the biracial system into a 
unitary nonracial system in accordance with the decisions 
of this Court. The remedy is not to strike at the branches 
of the evil, but at its root. In this case, the root of the 
evil is the biracial school structure itself. That structure 
must be removed in favor of some reasonable nonracial 
system of pupil assignment.

2. The Delay Countenanced by the Plan Is Unwarranted.

Not only must a unitary system be established, but it 
must come with greater celerity than 12 years. Petitioner’s 
plan for moderate acceleration to 6 years (1960-1965) (R. 
82-83) should have been approved by the court below. If 
this had been done, desegregation would today be on the 
verge of completion.

Petitioners submit that this Court’s recent admonition 
in Watson v. City of Memphis, 373 U. S. 526, not only au­
thorized but compelled such acceleration. Mr. Justice 
Goldberg speaking for the Court in Watson said:



14

[T]lie second Brown decision, 349 U. S. 294, 75 S. Ct. 
753, which contemplated the possible need of some 
limited delay in effecting total desegregation of public 
schools, must be considered . . .  in light of the signifi­
cant fact that the governing constitutional principles 
no longer bear the imprint of newly enunciated doc­
trine. . . . [W ]e cannot ignore the passage of a sub­
stantial period of time since the original declaration 
of the manifest unconstitutionality of racial practices 
such as are here challenged, the repeated and numerous 
decisions giving notice of such illegality, and the many 
intervening opportunities heretofore available to at­
tain the equality of treatment which the Fourteenth 
Amendment commands the States to achieve. These 
factors must inevitably and substantially temper the 
present import of such broad policy considerations as 
may have underlain, even in part, the form of decree 
ultimately framed in the Brown case. Given the ex­
tended time which has elapsed, it is far from clear 
that the mandate of the second Brown decision re­
quiring that desegregation proceed with “ all deliberate 
speed” would today be fully satisfied by types of plans 
or programs for desegregation of public educational 
facilities which eight years ago might have been deemed 
sufficient. Brown never contemplated that the concept 
of “ deliberate speed” would countenance indefinite de­
lay in elimination of racial barriers in schools . . . 
373 U. S. at 529-30.

That standards for desegregation plans adequate in 1955 
are no longer adequate—-and that it is time for a second look 

| at the rate of desegregatioiF1̂ ^ 'm  by Mr. Jus­
tice Clark in Goss v. Board of Education of the City of 
Knoxville, 373 U. S. 683, 689:



15

Now however, eight years after this decree [Brown II] 
was rendered, and over nine years after the first 
Brown decision, the context in which we must interpret 
and apply this language to plans for desegregation 
has been significantly altered.

The Courts of Appeals have also shown great impatience 
with the all-too-deliberate-sloth of the 12-year plans. Four 
circuits—the Third,11 Fourth,12 Fifth13 and Sixth14—have 
now invalidated “ grade-a-year” plans.

'These decisions make perfectly plain that, the burden was 
on respondents here to show that the delay attendant upon 
the “ grade-a-year” feature of the plan was imperatively 
and compellingly unavoidable. No such showing was made.

Moreover, these decisions dictate that respondents should 
not now be treated as those school boards which made a 
prompt and reasonable start in 1955.

3. A Prompt and Reasonable Start Should Be Made 
Toward Desegregation of the School Personnel.

Another major prop of the segregated school system 
which the majority opinion leaves standing is the segre­
gated staff. As all the world knows, in Atlanta, as else­
where, school segregation not only consists of having a 
Negro child in every seat in a Negro school but in having 
a Negro teacher in front of every Negro class. Moreover,

11 Evans v. Ennis, 281 F. 2d 385 (3d Cir. 1960).
12 Jackson v. School Board of The City of Lynchburg, 321 F. 2d 

230 (4th Cir. 1963).
13 Bush v. Orleans Parish School Board, 308 F. 2d 491, 500, 

501-502 (5th Cir. 1962).
14 Ooss v. Board of Education of the City of Knoxville, 301 F. 2d 

164 (6th Cir. 1962), reversed on other grounds, 373 U. S. 683.



16

Atlanta goes so far as to put all Negro schools under the 
direction of a Negro supervisor (E. 72).

The District Court, in this case, indefinitely postponed 
consideration of the assignment of Negro teachers on a 
nonracial basis. Such deferment is per se contrary to this 
Court’s admonitions in Watson and Goss that the time has 
come for full compliance with this Court’s directive to put 
an end to jerry-built devices for preserving segregation.

And recently the Court of Appeals for the Fifth Circuit 
decreed that the practice of assigning teachers by race falls 
within the Brown proscription against the continuation of 
racial distinctions in the public school system. Board of 
Public Instruction of Duval County v. Braxton, 5th Cir., No. 
20294, January 10, 1964.

4 . Unreversed, the Majority Opinion Dictates That 
Soon Another Generation of Negro Students Will 
Graduate From Atlanta’s Public School System 
With the Promise of Equality Made in 1954  
Unredeemed.

The majority opinion’s approval of Atlanta’s policy of 
tokenism and delay cannot be squared with the proposition 
that the constitutional right to attend a desegregated pub­
lic school system is a present right. This court recently said 
in Watson :

[T]he delay countenanced by Brown was a necessary 
albeit significant adaptation of the usual principle that 
any deprivation of constitutional rights calls for 
prompt rectification. The rights here asserted are, like 
all such rights, present rights; they are not merely 
hopes to some future enjoyment of some formalistic 
constitutional promise. The basic guarantees of our 
Constitution are warrants for the here and now, and, 
unless there is an overwhelmingly compelling reason, 
they are to be promptly fulfilled. 373 IT. S. at 532-33.



17

The result of the majority opinion is not only inconsistent 
with the great promise of equality envisioned by this 
Court’s 1954 decision, but it also jeopardizes the forward 
progress made to date. Three other major school districts 
—Savannah, Georgia, Birmingham, Alabama, and Mobile 
County, Alabama—ordered to commence desegregation in 
September, 1962, by the Fifth Circuit, pending appeal, im­
mediately adopted the Atlanta plan which had just been 
approved. As a result, Savannah admitted 21 Negro stu­
dents to the 12th grade out of a school population of 24,013 
whites and 15,336 Negroes. Birmingham admitted 5 to the 
12th grade out of a school population of 37,500 whites and 
34,834 Negroes. Mobile County admitted 2 to the 12th grade 
out of a school population of 47,247 whites and 30,020 
Negroes.

ITnreversed, the majority opinion supports the proposi­
tion that token desegregation conforms to the mandate of 
equal protection of the laws. This erroneous and mischie­
vous doctrine requires prompt expunetion by this Court.15

15 See Bickel, The Decade of School Desegregation, 64 Columbia 
Law Review 193 (1964), particularly pp. 208-211.



18

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

C onstance B aker  M otley 
J ack  Greenberg

10 Columbus Circle 
New York, New York 10019

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

D onald L . H ollowell

Cannolene Building (Annex) 
859!/2 Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Petitioners

N orman  A m aker  
A. T. W alden 
J. L eV onne C hambers 

Of Counsel



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