Lockett v. The Board of Education of Muscogee County School District Record on Appeal
Public Court Documents
January 1, 1967

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Brief Collection, LDF Court Filings. Lockett v. The Board of Education of Muscogee County School District Record on Appeal, 1967. 3b732c79-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8e653497-346d-446e-97f3-7f69e49999d2/lockett-v-the-board-of-education-of-muscogee-county-school-district-record-on-appeal. Accessed April 22, 2025.
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/?4c<i7Z>/J I n t h e Intfrii States §0nri nf Ap^ala F ob th e F if t h C ircuit No. 25356 J erry L. L ockett , et al ., versus Appellants, B oard of E ducation , M uscogee Co u nty S chool D istrict , Georgia, et al .. Appellees. APPE A L FROM T H E U N IT E D STATES DISTRICT COURT FOR T H E M IDDLE D ISTRICT OF GEORGIA RECORD ON APPEAL J ack G reenberg Charles S tephen R alston 10 Columbus Circle New York, N. Y. 10019 H oward M oore, Jr. 8591/2 Hunter Street, N.W. Atlanta, Georgia 30314 C. B. K ing P.O. Box 1024 Albany, Georgia Attorneys for Appellants I N D E X Plan to Desegregate, etc. (Exhibit A) .......... ............ 1 Resolution to Amend Plan, etc. .................. ................ 5 Motion for Summary Judgment ............ .................... 7 Appendix A —Explanatory Letter ............... ..... 16 Appendix B— Choice Form ............. .................... 18 Motion to Allow Appearance of Counsel ............... . 20 O rder.................................................................................. 21 Certificate of Service..................................................... - 21 Notice of Motion ...................................................... — 22 Motion for Further Relief .... - 23 Certificate of Service ..................................................... 30 Notice of Motion ................... ................................ .......... 31 Motion for Order Entering Decree, etc..................... 32 Certificate of Service ............. ................. .......... .......... 34 Response of Defendant to Plaintiffs’ Motion for an Order Entering a Decree, etc. ............................ 35 Transcript of Proceedings ........ ....... ............ ....... -.... 39 PAGE Certificate 121 Memorandum Opinion and Order on Plaintiffs’ Mo tion for Further Relief ........................................... 122 Notice of Appeal .......................................................... 132 Designation of Record on Appeal ............................... 133 Certificate of Service...................................................... 135 Clerk’s Certificate .......................................................... 136 T estim on y Defendants’ Witnesses: Dr. Wm. H. Shaw Direct .................................................................... 10 Cross ...................................................................... 60 Redirect ............................................................ 94, H3 Recross .............................................................. 113 John R. Kinnett Direct .................................................................... 96 Cross ...................................................................... 97 T. Hiram Stanley- Direct .................................................................... 98 Cross ..................................................................... 100 Plaintiffs’ Witnesses: Robert A. Lewis Direct ................................................................... 105 Cross ..................................................................... 108 Redirect ............................................................... H I Recross ................................................................. 112 ii PAGE I l l E x h ib it s* Plaintiffs’ Exhibits: 1— List of Schools ........ -................... -..... -......... 68 2— Packet ...........................-........ -...................... - 69 3>—Application ........................... -..................... - 85 4— Application ........................................................ 85 5— Application ..... .................................................. 85 PAGE * Exhibits not printed in Record. I. The Board of Education of the Muscogee County School District, in continuation of its efforts to eliminate, with all deliberate speed, discrimination because of race or color between the pupils of the school district, hereby declares that it will begin to desegregate the schools of the Muscogee County School District by starting in September, 1964, with the twelfth grade, and the Board of Education will desegregate one lower grade each succeeding year until desegregation shall have been accomplished throughout the school district. II. The Board of Education maintains that the best interests of the citizens of Muscogee County School District will prevail when the Board controls the assignment of pupils to the various school plants and facilities. The Super intendent of Education is hereby directed to continue the maintenance of school attendance areas for each school by keeping a map and word description of each attendance area. The Board of Education will continue its long estab lished policy of assignment of pupils to attendance areas in the Muscogee County School District in order to pre serve the orderly process of administering public education. III. Pupils shall attend the school within the attendance area in which they reside, but transfers, upon the written re quest of a pupil and his parents or his legal guardian or upon the discretion of the Superintendent of Education, A Plan to Desegregate the Schools of the Muscogee County School District, Georgia (Exhibit “A” ) 2 may be made, without regard to race or color, whenever it is in the interest of the pupil or the efficient administra tion of the Muscogee County School District. IV. The Board of Education hereby establishes February 1-15, 1964, as the period in which to receive written appli cations from pupils and parents or legal guardians for transfers and reassignments to the twelfth grade of a high school other than the one to which the pupil is cur rently assigned in the Muscogee County School District. The written applications setting forth reasons for trans fers and reassignments will be evaluated and either ap proved or rejected by the Superintendent of Education no later than April 1, 1964, and written notice mailed to parents at the address shown on written application no later than three days after the decision by the Super intendent of Education. The pupil and parents or legal guardian may appeal in writing the decision of the Super intendent of Education no later than the regular April meeting of the Board of Education. The final decision of the Board of Education will be made no later than May 1, 1964, and the pupil and parents or legal guardian will be given written notice at the address shown on written appli cation of the decision by the Board of Education within fifteen days. Y. The Board of Education will consider written applica tions for transfers and reassignments for new pupils mov ing into the school district after February 15, 1964, no later than August 1, 1964. All pupils must accept the A Plan to Desegregate the Schools of the Muscogee County School District, Georgia 3 original assignment to the school within the attendance area in which the pupil resides, but will be permitted to file written application for transfer and reassignment by the Superintendent of Education. VI. All newcomers moving into the Muscogee County School District after August 1, 1964, must register and attend the school in the attendance area in which they reside, but may file written application with the Superintendent of Education for transfer and reassignment to the twelfth grade of another school. Such written applications will be processed as expeditiously as possible by the Super intendent of Education. A Plan to Desegregate the Schools of the Muscogee County School District, Georgia VII. All hardship cases, upon written application and full explanation of the facts in the case, will be given full and sympathetic consideration by the Superintendent of Edu cation and the Board of Education. VIII. In the administration of this plan the Superintendent of Education is directed to take into consideration all criteria that may affect the best interest and welfare of the pupils and the efficient administration of public education in the Muscogee County School District, but no consideration shall be given to the race or color fo any pupil. IX. The same procedure for filing written applications for transfers and reassignments and approving or rejecting 4 such, written applications for transfers and reassignments will prevail in 1965 and each year thereafter as outlined for the school year beginning September, 1964. A Plan to Desegregate the Schools of the Muscogee County School District, Georgia X. The Board of Education, in its discretion, may revise, change, or amend these rules and regulations or any one of them. Muscogee County School District Columbus, Georgia September 12, 1963 5 W hereas, this Board has reviewed its Plan to desegre gate the schools of this District with all deliberate speed and has surveyed its personnel and physical facilities and desires to further amend its Plan so as to fully comply with the law in such cases made and provided: Now, therefore, be it resolved, that a parent or legal guardian of any child now a resident of Muscogee County who will enter any grade, including Kindergarten, in the Muscogee County schools in September, 1967, may, during the period from March 1 through March 31, 1967, make written application at the school now attended by said child or at a school in the area in which the residence of said child is located, to enroll said child at the school of such pupil’s choice, and such pupil shall have the right to attend such school provided that the capacity of such school is sufficient to enroll all pupils desiring to attend such school. In any case where the capacity of any school is not sufficient to enroll all pupils applying for attendance at such school, those pupils residing nearest the school will be enrolled and the remainder of such pupils will be as signed by the Superintendent and his staff to other schools which have available space and are near the residence of said pupils. B e it fu rth er resolved, that any pupil now a resident in said County who does not apply as above provided at any particular school for the next school year shall register and enroll at the school the pupil is now attending or at a school in the area in which said pupil’s residence is located. B e it fu rth er resolved, that any new pupil entering the school system for the first time must make written appli- Resolution to Amend the Plan to Desegregate the Schools of Muscogee County, Georgia 6 Resolution to Amend the Plan to Desegregate the Schools of Muscogee County, Georgia cation to the Superintendent to attend the school of such pupil’s choice and, if space is available, such pupil will be enrolled at such school, and if space is not available, such pupil will be assigned by the Superintendent to a school having available space which is near to the residence of such pupil. B e it furth er resolved, that the Superintendent shall cause to be delivered a copy of this resolution to each pupil; now attending Muscogee County schools on or before Feb ruary 20, 1967, and the Superintendent shall supply the principal of each school with sufficient written forms to enable any pupil who desires to do so to make application to attend the school of such pupil’s choice. The Super intendent shall also give copies of this resolution to the news media in this County and to any resident requesting copy of same. The Superintendent shall also cause a copy of this resolution to be printed in a newspaper in this County once a week for four weeks immediately preceding March 1, 1967. B e it fu rth er resolved, that this Board review its Plan each year and make such amendments to said Plan as it may deem desirable. # * * This resolution was unanimously adopted by the Muscogee County Board of Education, Muscogee County School Dis trict, Columbus, Georgia, at its regular meeting held on January 31, 1967. 7 (Filed February 1, 1967) [Caption Omitted] Plaintiffs, by their undersigned attorneys, hereby move this Court for summary judgment under F.R.C.P. 56, grant ing an immediate order for additional relief in the present case and in support of such motion would show the fol lowing : 1. On December 29, 1966, the United States Court of Appeals for the Fifth Circuit rendered a decision in thd case of United States of America and Linda Stout v. Jeffer- son County Board of Education, et al., No. 23345, and six companion school cases. In that decision, the Fifth Circuit, settled a number of important issues regarding the re quirements of plans for school desegregation in this Circuit. In the opinion the Court made it clear that the proposed decree which was attached as an appendix: [is] intended, as far as possible, to apply uniformly throughout this circuit in cases involving plans based on the free choice of schools. School boards, private plaintiffs, and the United States may, of course, come into court to prove that exceptional circumstances com pel modification of the decree. For example, school systems in areas which let school out during planting and harvesting seasons may find that the period for exercise of choice of school, March 1-31, should be changed to a different month. (Slip Opinion, pp. 111- 12)1 Motion for Summary Judgment 1 The choice period is May 1—June 1 in the year 1967. 8 2. In view of the decision, certain standards regarding the exercise of choice in a free choice plan are required in all school cases pending in this Circuit, including the, present case. Those standards include the necessity for an adequate period of time for the choice period, the re quirement that all pupils in the system exercise a choice, and certain other matters as set out more fully below in the prayer for relief. 3. I f the requested motion is not granted and the re quired free choice period is not established immediately by order of this Court, the rights of the plaintiffs as estab lished by the decision of the Fifth Circuit will be seriously jeopardized as far as the coming school year is concerned. 4. In view of the fact that the plan presently in effect in this case does not fully conform to the standards set out by the Fifth Circuit and in view of the Fifth Circuit’s holding that as a matter of law its proposed decree is to be entered in all pending cases except where exceptional circumstances are shown to exist, there are no material questions of fact at issue and plaintiffs are entitled to judgment as a matter of law. Therefore, this Court should grant the requested motion for summary judgment pur suant to F.R.C.P. Rule 56 and render the decree sought herein by the plaintiffs. W herefore, plaintiffs pray for summary judgment, after defendants have been given an opportunity to respond a ̂ provided for in Rule 56, granting an order requiring the school board to amend the plan presently in effect in the following particulars, as required by the proposed decree of the Fifth Circuit in the above-mentioned cases (Slip Opinion, pp. 118-25; 132-34) : Motion for Summary Judgment 9 I S peed of D esegregation Commencing with, the 1967-68 school year, in accordance with this decree, all grades, including kindergarten grades, shall be desegregated and pupils assigned to schools in these grades without regard to race or color. II E xercise of C hoice The following provisions shall apply to all grades: (a) Who May Exercise Choice. A choice of schools may be exercised by a parent or other adult person serving as the student’s parent. A student may exercise his own choice if he (1) is exercising a choice for the ninth or a higher grade, or (2) has reached the age of fifteen at the time of the exercise of choice. Such a choice by a student is controlling unless a different choice is exercised for him by his parent or other adult person serving as his parent during the choice period or at such later time as the student exercise a choice. Each reference in this decree to a stu dent’s exercising a choice means the exercise of the choice, as appropriate, by a parent or such other adult, or by the student himself. (b) Annual Exercise of Choice. All students, both white and Negro, shall be required to exercise a free choice of schools annually. (c) Choice Period. The period for exercising choice shall commence May 1, 1967 and end June 1, 1967, and in subsequent years shall commence March 1 and end March 31 preceding the school year for which the choice Motion for Summary Judgment 10 is to be exercised. No student or prospective student who exercises his choice within the choice period shall be given any preference because of the time within the period when such choice was exercised. (d) Mandatory Exercise of Choice. A failure to exercise a choice within the choice period shall not preclude any student from exercising a choice at any time before he commences school for the year with respect to which the choice applies, but such choice may be subordinated to the choices of students who exercised choice before the ex piration of the choice period. Any student who has not exercised his choice of school within a week after school opens shall be assigned to the school nearest his home where space is available under standards for determining available space which shall be applied uniformly through out the system. (e) Public Notice. On or within a week before the date the choice period opens, the defendants shall arrange for the conspicuous publication of a notice describing the pro visions of this decree in the newspaper most generally circulated in the community. The text of the notice shall be substantially similar to the text of the explanatory letter sent home to parents. (See paragraph 11(e).) Pub lication as a legal notice will not be sufficient. Copies of this notice must also be given at that time to all radio and television stations serving the community. Copies of this decree shall be posted in each school in the school system and at the office of the Superintendent of Education. (f) Mailing of Explanatory Letters and Choice Forms. On the first day of the choice period there shall be dis tributed by first-class mail an explanatory letter and a Motion for Summary Judgment 11 choice form to the parent (or other adult person acting as parent, if known to the defendants) of each student, to gether with a return envelope addressed to the Super intendent. Should the defendants satisfactorily demon strate to the court that they are unable to comply with the requirement of distributing the explanatory letter and choice form by first-class mail, they shall propose an alter native method which will maximize individual notice, i.e., personal notice to parents by delivery to the pupil with adequate procedures to insure the delivery of the notice. The text for the explanatory letter and choice form shall essentially conform to the sample letter and choice form appended to this decree. (See Appendix A.) (g) Extra Copies of the Explanatory Letter and Choice Form. Extra copies of the explanatory letter and choice form shall be freely available to parents, students, prospec tive students, and the general public at each school in the system and at the office of the Superintendent of Education during the times of the year which such schools are usually open. (h) Content of Choice Form. Each choice form shall set forth the name and location of the grades offered at each school and may require of the person exercising the choice the name, address, age of student, school and grade cur rently or most recently attended by the student, the school chosen, the signature of one parent or other adult person serving as parent, or where appropriate the signature of the student, and the identity of the person signing. No statement of reasons for a particular choice, or any other information, or any witness or other authentication, may be required or requested, without approval of the court. (See Appendix B.) Motion for Summary Judgment 1 2 (i) Return of Choice Form. At the option of the person completing the choice form, the choice may be returned by mail, in person, or by messenger to any school in the/ school system or to the office of the Superintendent. (j) Choices not on Official Form. The exercise of choice may also be made by the submission in like manner of any other writing which contains information sufficient to iden tify the student and indicates that he has made a choice of school. (k) Choice Forms Binding. When a choice form has once been submitted and the choice period has expired, the choice is binding for the entire school year and may not be changed except in cases of parents making different choices from their children under the conditions set forth in paragraph 11(a) of this decree and in exceptional cases where, absent the consideration of race, a change is edu cationally called for or where compelling hardship is shown by the student. (l) Preference in Assignment. In assigning students to schools, no preferences shall be given to any student for prior attendance at a school and, except with the approval of court in extraordinary circumstances, no choice shall be denied for any reason other than overcrowding. In case of overcrowding at any school, preference shall be given on the basis of the proximity of the school to the homes of the students choosing it, without regard to race or color. Standards for determining overcrowding shall be applied uniformly throughout the system. (m) Second Choice where First Choice is Denied. Any student whose choice is denied must be promptly notified Motion for Summary Judgment 13 in writing and given Ms choice of any school in the school system serving his grade level where space is available. The student shall have seven days from the receipt of no tice of a denial of first choice in which to exercise a second choice. (n) Official not to Influence Choice. At no time shall any official, teacher, or employee of the school system influence any parent, or other adult person serving as a parent, or any student, in the exercise of a choice or favor or penalize any person because of a choice made. I f the defendant school board employs professional guidance counsellors, such persons shall base their guidance and counselling on the individual student’s particular personal, academic, and vocational needs. Such guidance and counselling by teach ers as well as professional guidance counsellors shall be available to all students without regard to race or color. (o) Protection of Persons Exercising Choice. Within their authority school officials are responsible for the pro tection of persons exercising rights under or otherwise affected by this decree. They shall, without delay, take appropriate action with regard to any student or staff member who interferes with the successful operation of the plan. Such interference shall include harassment, in timidation, threats, hostile words or acts, and similar be havior. The school board shall not publish, allow, or cause to be published, the names or addresses of pupils exer cising righst or otherwise affected by this decree. I f offi cials of the school system are not able to provide sufficient protection, they shall seek whatever assistance is necessary from other appropriate officials. Motion for Summary Judgment 14 III P rospective S tudents Each prospective new student shall be required to exer cise a choice of schools before or at the time of enrollment. All such students known to defendants shall be furnished a copy of the prescribed letter to parents, and choice form, by mail or in person, on the date the choice period opens or as soon thereafter as the school system learns that he plans to enroll. Where there is no pre-registration proce dure for newly entering students, copies of the choice forms shall be available at the Office of the Superintendent and at each school during the time the school is usually open. IV T ransfers (a) Transfers for Students. Any student shall have the> right at the beginning of a new term to transfer to any school from which he was excluded or would otherwise be excluded on account of his race or color. (b) Transfers for Special Needs. Any student who re quires a course of study not offered at the school to which he has been assigned may be permitted, upon his written application, at the beginning of any school term or semester, to transfer to another school which offers courses for his special needs. (c) Transfers to Special Classes or Schools. I f the de fendants operate and maintain special classes or schools for physically handicapped, mentally retarded, or gifted children, the defendants may assign children to such schools or classes on a basis related to the function of the special class or school that is other than freedom of choice. In no Motion for Summary Judgment 15 event shall such assignment be made on the basis of race or color or in a manner which tends to perpetuate a dual school sysetm based on race or color. Respectfully submitted, H oward M oore, J r . 859% Hunter Street, N.W. Atlanta, Georgia J ack G reenberg Charles S teph en R alston H enry M . A ronson 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs Motion for Summary Judgment Certificate of Service I hereby certify that I have served a copy of the fore going Motion for Summary Judgment on the defendants by mailing a copy of the same to their attorneys, J. Madden Hatcher, Esq., and A. J. Land, Esq., P. 0. Box 469, Colum bus, Georgia, by United States mail, postage prepaid. Done this 30th day of January, 1967. H oward M oore, Jr. Attorney for Plaintiffs; 16 APPENDIX A Explanatory Letter (School System Name and Office Address) (Date Sent) Dear Parent: All grades in onr school system will be desegregated next year. Any student who will be entering one of these grades next year may choose to attend any school in our system, regardless of whether that school was formerly all-white or all-Negro. It does not matter which school your child is attending this year. You and your child may select any school you wish. Every student, white and Negro, must make a choice of schools. If a child is entering the ninth or higher grade, or if the child is fifteen years old or older, he may make the choice himself. Otherwise a parent or other adult serving as parent must sign the choice form. A child enrolling in the school system for the first time must make a choice of schools before or at the time of his enrollment. The form on which the choice should be made is attached to this letter. It should be completed and returned by June 1, 1967. You may mail it in the enclosed envelope, or de liver it by messenger or by hand to any school principal or to the Office of the Superintendent at any time between May 1 and June 1. No one may require you to return your choice form before June 1 and no preference is given for returning the choice form early. No principal, teacher or other school official is permitted to influence anyone in making a choice or to require early return of the choice form. No one is permitted to favor or 17 Appendix A penalize any student or other person because of a choice made. A choice once made cannot be changed except for serious hardship. No child will be denied his choice unless for reasons of overcrowding at the school chosen, in which case children living nearest the school will have preference. Transportation will be provided, if reasonably possible, no matter what school is chosen. [Delete if the school sys tem does not provide transportation.] Your School Board and the school staff will do every thing we can to see to it that the rights o f all students are protected and that desegregation of our schools is carried out successfully. Sincerely yours, Superintendent 18 APPENDIX B Choice Form This form is provided for you to choose a school for your child to attend next year. You have 30 days to make your choice. It does not matter which school your child attended last year, and does not matter whether the school you choose was formerly a white or Negro school. This form must be mailed or brought to the principal of any school in the system or to the office of the Superintendent, [address], by June 1, 1967. A choice is required for each child. Name of Child ......... .................................. .................................. , (Last) (First) (Middle) A ddress................................................................ Name of Parent or other adult serving as parent ................................. I f child is entering first grade, date of birth (Month) (Day) (Year) Grade child is entering School attended last year 19 Appendix B Choose one of the following schools by marking an X beside the name. Name of School Grade Location Signature Date To be filled in by Superintendent: School Assigned 2 0 Motion to Allow Appearance of Counsel (Filed February 1, 1967) [Caption Omitted] H oward M oore, J r ., E sq., moves the Court for an order allowing his appearance as counsel for the plaintiffs in the above case. This 30th day of January, 1967. H oward M oore, J r . 8591/s Hunter St., N. W. Atlanta, Georgia 30314 21 Order Upon consideration of the above and foregoing motion to allow appearance of counsel, the same is hereby allowed and ordered filed and the clerk is directed to enter the name of Howard Moore, Jr., as counsel of record for the plain tiffs. This 1st day of February, 1967. J . R obert E lliott Judge, United States District Court Certificate of Service I hereby certify that I have served a copy of the fore going motion on defendants by mailing a copy of same to their attorney, J. Madden Hatcher, Esq., P. O. Bos 469, Columbus, Georgia, via United States Mail, postage pre paid. This 30th day of January, 1967. H oward M oore, Jr. 22 Notice of Motion (Filed February 17, 1967) (Caption Omitted) To: J. Madden Hatcher, Esq. and A. J. Land, Esq., P. 0. Box 469, Columbus, Georgia, attorneys for defendant Board of Education of Muscogee County School District, Georgia, et al. You and each of you are hereby notified that the under signed counsel for movants herein will bring the attached motion for further relief, together with the herein before filed motion for summary judgment, on for hearing at such time and place as the court shall order or, in the event no order for hearing is allowed, within 15 days of the receipt of the same, on briefs, as provided for in the “local rules of court” . You are invited to appear and take such part as you consider fit and proper. This 15th day of February, 1967. H oward M oore, Jr. 859% Hunter St., N. W. Atlanta, Georgia 30314 Attorney for Movants 23 (Filed February 17, 1967) [Caption Omitted] Plaintiffs, by their undersigned attorneys, hereby move this Court for further relief in this case, and in support of such motion, would show the following: 1. On December 29, 1966, the United States Court of Appeals for the Fifth Circuit rendered its decision in the case of the United States of America and Linda Stout v. Jefferson County Board of Education, et al., No. 23345, and six companion school cases. In that decision the Fifth Cir cuit settled a number of important issues regarding the re quirements of plans for school desegregation in this Cir cuit. The plaintiffs have already filed a motion for sum mary judgment in this case for an order granting them a number of the requirements set out by the Fifth Circuit regarding which no taking of evidence is necessary. 2. In addition to the matters covered in plaintiffs’ motion for summary judgment, the Fifth Circuit also made it clear that all plans in this Circuit for the desegregation of schools are to include provisions: that will insure that services, facilities, activities and programs in all schools will be free of segregation and discrimination; that in all schools here tofore maintained for Negro students, the school boards must take prompt steps to equalize the physical facilities', equipment, courses of instruction, etc., if such steps are necessary; that the school boards are to locate any planned new schools wtih the objective of eradicating any vestiges of the former dual school system and to eliminate the ef fects of segregation; that the school boards are to take prompt steps to achieve substantial desegregation of school Motion for Further Relief 24 faculties for the school year 1967-68; and that school boards are to file with the district court and serve upon plaintiffs comprehensive reports setting out the extent of desegrega tion. 3. Since the plan presently in effect in the present case does not fully conform to the standards set out by the Fifth Circuit, plaintiffs are entitled to a further order establish ing a plan that provides for the above-mentioned matters. W herefore, plaintiffs pray that this Court set down this motion for hearing and, after such hearing, grant an order requiring the school board to amend to the extent necessary the plan presently in effect in the following particulars, as required by the proposed decree of the Fifth Circuit in the above-mentioned case (Slip Opinion, pp. 126-131): I S ervices, F acilities, A ctivities and P rograms No student shall be segregated or discriminated against on account of race or color in any service, facility, activity, or program (including transportation, athletics, or other extra-curricular activity) that may be conducted or spon sored by or affiliated with the school in which he is enrolled. A student attending school for the first time on a desegre gated basis may not be subject to any disqualification or waiting period for participation in activities and programs, including athletics, which might otherwise apply because he is a transfer or newly assigned student except that such transferees shall be subject to long-standing, non-racially based rules of city, county, or state athletic associations dealing with the eligibility of transfer students for athletic contests. All school use or school-sponsored use of athletic Motion for Further Relief 25 fields, meeting rooms, and all other school related services, facilities, activities, and programs such as Commencement exercises and parent-teacher meetings which are open to persons other than enrolled students, shall be open to all persons without regard to race or color. All special educa tional programs conducted by the defendants shall be con ducted without regard to race or color. II S chool E qualization (a) Inferior Schools. In schools heretofore maintained for Negro students, the defendants shall take prompt steps necessary to provide physical facilities, equipment, courses of instruction, and instructional materials of quality equal to that provided in schools previously maintained for white students. Conditions of overcrowding, as determined by pupil-teacher ratios and pupil-classroom ratios shall, to the extent feasible, be distributed evenly between schools for merly maintained for Negro students and those formerly maintained for white students. If for any reason it is not feasible to improve sufficiently any school formerly main tained for Negro students, where such improvement would otherwise be required by this subparagraph, such school shall be closed as soon as possible, and students enrolled in the school shall be reassigned on the basis of freedom of choice. By October of each year, defendants shall report to the Clerk of the Court pupil-teacher ratios, pupil-classroom ratios, and per-pupil expenditures both as to operating and capital improvement costs, and shall outline the steps to be taken and the time within which they shall accomplish the equalization of such schools. (b) Remedial Programs. The defendants shall provide remedial education programs which permit students attend Motion for Further Belief Motion for Further Belief ing or who have previously attended all-Negro schools to overcome past inadequacies in their education. III N ew C onstruction The defendants, to the extent consistent with the proper operation of the school system as a whole, shall locate any newT school and substantially expand any existing schools with the objective of eradicating the vestiges of the dual system and of eliminating the effects of segregation. IV F aculty and S taee (a) Faculty Employment. Race or color shall not be a factor in the hiring, assignment, reassignment, promotion, demotion, or dismissal of teachers and other professional staff members, including student teachers, except that race may be taken into account for the purpose of counteracting or correcting the effect of the segregated assignment of teachers in the dual system. Teachers, principals, and staff members shall be assigned to schools so that the faculty and staff is not composed exclusively of members of one race. Wherever possible, teachers shall be assigned so that more than one teacher of the minority race (white or Negro) shall be on a desegregated faculty. Defendants shall take positive and affirmative steps to accomplish the desegrega tion of their school faculties and to achieve substantial de segregation of faculties in as many of the schools as pos sible for the 1967-68 school year notwithstanding that teacher contracts for the 1966-67 or 1967-68 school years may have already been signed and approved. The tenure of teachers in the system shall not be used as an excuse for 27 failure to comply with, this provision. The defendants shall establish as an objective that the pattern of teacher assign ment to any particular school not be identifiable as tailored for a heavy concentration of either Negro or white pupils in the school. (b) Dismissals. Teachers and other professional staff members may not be discriminatorily assigned, dismissed, demoted, or passed over for retention, promotion, or re hiring, on the ground of race or color. In any instance where one or more teachers or other professional staff members are to be displaced as a result of desegregation, no staff vacancy in the school system shall be filled through recruit ment from outside the system unless no such displaced staff member is qualified to fill the vacancy. If, as a result of de segregation, there is to be a reduction in the total profes sional staff of the school system, the qualifications of all staff members in the system shall be evaluated in selecting the staff member to be released without consideration of race or color. A report containing any such proposed dis missals, and the reasons therefor, shall be filed with the Clerk of the Court, serving copies upon opposing counsel, within five (5) days after such dismissal, demotion, etc., as proposed. (c) Past Assignments. The defendants shall take steps to assign and reassign teachers and other professional staff members to eliminate past discriminatory patterns. V R eports to th e C ourt (1) Report on Choice Period. The defendants shall serve upon the opposing parties and file with the Clerk of the Court on or before April 15, 1967, and on or before June Motion for Further Relief Motion for Further Belief 15, 1967, and in each subsequent year on or before June 1, a report tabulating by race the number of choice applica tions and transfer applications received for enrollment in each grade in each school in the system, and the number of choices and transfers granted and the number of denials in each grade of each school. The report shall also state any reasons relied upon in denying choice and shall tabulate, by school and by race of student, the number of choices and transfers denied for each such reason. In addition the report shall show the percentage of pupils actually transferred or assigned from segregated grades or to schools attended predominantly by pupils of a race other than the race of the applicant, for attendance during the 1966-67 school year, with comparable data for the 1965-66 school year. Such additional information shall be included in the report served upon opposing counsel and filed with the Clerk of the Court. (2) Report After School Opening. The defendants shall, in addition to reports elsewhere described, serve upon op posing counsel and file with the Clerk of the Court within 15 days after the opening of schools for the fall semester of each year, a report setting forth the following informa tion: (i) The name, address, grade, school of choice and school of present attendance of each student who has withdrawn or requested withdrawal of his choice of school or who has transferred after the start of the school year, together with a description of any action taken by the defendants on his request and the reasons therefor. (ii) The number of faculty vacancies, by school, that have occurred or been filled by the defendants since 29 the order of this Court or the latest report submitted pursuant to this subparagraph. This report shall state the race of the teacher employed to fill each such va cancy and indicate whether such teacher is newly em ployed or was transferred from within the system. The tabulation of the number of transfers within the system shall indicate the schools from which and to which the transfers were made. The report shall also set forth the number of faculty members of each race assigned to each school for the current year. (iii) The number of students by race, in each grade of each school. Respectfully submitted, H oward M oore, J r . 859]/2 Hunter Street, N.W. Atlanta, Georgia J ack Greenberg C harles S teph en R alston H en ry M . A ronson 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs Motion for Further Relief 30 Certificate of Service I hereby certify that I have served a copy of the forego ing Motion for Further Relief on the defendants by mail ing a copy of the same to their attorneys, J. Madden Hatcher, Esq., and A. J. Land, Esq., P. 0. Box 469, Colum bus, Georgia, by United States mail, postage prepaid. Done this 15th day of February, 1967. H ow ard M oore , J r . Attorney for Plaintiffs 31 Notice of Motion (Filed May 9, 1967) [Caption Omitted] To: J. Madden Hatcher, Esq. and A. J. Land, Esq., P. 0. Box 469, Columbus, Georgia, attorneys for defendant Board of Education of Muscogee County School District, Georgia, et al. You and each of you are hereby notified that the under signed counsel for movants herein will bring the attached motion on for hearing at such time and place as the Court shall order or, in the event no order for hearing is allowed, within fifteen days of the receipt of the same, on briefs, as provided for in the “Local Rules of Court” . You are in vited to appear and take such part as you consider fit and proper. This 6th day of May, 1967. H oward M oore, J r . 859% Hunter St., N.W. Atlanta, Georgia 30314 Attorney for Movants 32 Motion for an Order Entering a Decree on the Authority of the U n ite d S ta tes o f A m e r ic a a n d L in d a S to u t v. J e ffe r s o n County B o a r d o f E d u c a tio n , e t a l ., or in the Alternative, for an immediate Hearing (Filed May 9, 1967) [Caption Omitted] Plaintiffs, by their undersigned attorneys, hereby move this Court for an order entering a decree on the authority of the United States of America and Linda Stout v. Jeffer son County Board of Education, et al., No. 23345, decided December 29, 1966 in the United States Court of Appeals for the Fifth Circuit, or in the alternative, for an immedi ate hearing. In support of such motion, plaintiffs show the following: 1. The decision of the United States Court of Appeals for the Fifth Circuit on December 29, 1966 by three judges of said Court was affirmed by the United States Court of Appeals for the Fifth Circuit sitting en banc. Motions for stays of execution and enforcement are the judgments of the United States District Court for the Eastern and West ern Districts of Louisiana entered pursuant to the man dates of the United States Court of Appeals for the Fifth Circuit in said cases were denied by the Supreme Court of the United States on April 17, 1967, sub nom. Caddo Paris School Board v. United States, 35 U. S. Law Week, 3365 (1967). 2. The record, orders, judgments, decrees, and plans of filed in this Court in the above captioned case clearly show that the plan now providing for limited equal educational opportunities in the school system operated by the defend ant Board of Education of Muscogee County School Dis- 33 Motion for an Order Entering a Decree on the Authority of the United States of America and Linda Stout v. Jefferson County Board of Education, et al., or in the Alternative, for an immediate Hearing trict does not satisfy the judgments and mandates of the United States Court of Appeals for the Fifth Circuit in the case of the United States of America, and Linda Stout v. Jefferson County Board of Education, et al., No. 23345. W herefore, plaintiffs pray that this Court enter an order decreeing the defendant School Board to amend to the ex tent necessary the plan presently in effect so as to fully conform to the standards set out by the United States Court of Appeals for the Fifth Circuit or, in the alternative, to set down their previously filed motions for summary judg ment and for further relief for hearing and, after such hear ing, grant an order requiring the school board to amend to the extent necessary the plan presently in effect to fully conform to the standards set out by the United States Court of Appeals for the Fifth Circuit. H oward M oore, J r . 859y2 Hunter St., N.W. Atlanta, Georgia 30314 J ack G reenberg C harles S teven It Alston H enry M . A ronson Suite 2030 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs 34 Certificate of Service I hereby certify that I have served a copy of the fore going motion on the defendants by filing a copy of the same to their attorneys, J. Madden Hatcher, Esq., and A. J. Land, Esq., P. 0. Box 469, Columbus, Georgia, by United States Mail, postage prepaid. Done this 6th day of May, 1967. H ow ard M oore, J r . Attorney for Plaintiffs 35 Response o f Defendant to Plaintiffs’ Motion for an Order Entering a Decree on the Authority o f the United Slates o f America, el al. v. Jefferson County Board o f Education, et al. (Filed June 6, 1967) [Caption Omitted] Comes now the Defendant, B oard of E ducation of th e M uscogee C ou nty S chool D istrict of th e S tate of Georgia, and, in response to the motion of the Plaintiffs served on the Defendant May 6, 1967, respectfully shows to the Court as follows: 1. Defendant is informed and believes that the School Board defendants in the case of United States of America and Linda Stout v. Jefferson County Board of Education, et al., No. 23345, have petitioned, or will in the near future peti tion, for certiorari to the Supreme Court of the United States to have the decree entered in the above stated case in the United States Court of Appeals for the Fifth Cir cuit on December 29,1966, reviewed, reversed and remanded, and such petition for certiorari has not yet been granted or denied by the Supreme Court, and the decree of the United States Court of Appeals for the Fifth Circuit in the above stated case should not be considered final until said petition for certiorari has been acted upon. 2. This Defendant, prior to the filing of this suit by the Plaintiffs, did on September 16, 1963, adopt a plan to de segregate the schools of the Muscogee County School Dis trict, Georgia, and, since the adoption of said plan, have 36 persistently prosecuted the desegregation of said School System and did on December 28, 1964, an on December 20, 1965, and on January 31, 1967, amend said plan so that said schools could he desegregated as rapidly as reasonably pos sible. In accordance with the judgment of this Court and the judgment of the United States Court of Appeals for the Fifth Circuit in this case, Defendant has given the par ents of each student in each grade, including Kindergarten, the free choice to select the school which said parents desire for said student to attend during the next school year, and all choice applications have been acted upon by the Super intendent and his staff without reference to race or color, and all of said applications have been granted or acted upon in a manner satisfactory to said parents and students and there has been no appeal filed by any parent or student with respect to any choice application. 3. All of the schools and grades in the Muscogee County School System have been accredited by the Southern Ac crediting Association, and Defendant is affording each and every child as fine an educational opportunity as the funds available to it will permit. Response of Defendant to Plaintiffs’ Motion, etc. 4. The actions of this Defendant in administering said schools and said plan of desegregation has met with the approval of the Citizens of this County. 5. Defendant has desegregated the faculties in some of the classes and schools in its system. 37 6. Defendant respectfully submits that the plan for the desegregation of the schools of the Muscogee County School District as now in effect and as now being carried out con forms as nearly to the standards set out in the Jefferson County case as is possible, consistent with the Defendant’s duty to furnish quality education to the school children of its District. 7. To require the Muscogee County School District to amend its plan to include all of the requirements which were imposed upon the school districts in the Jefferson County case would deprive the Board of Education of the Muscogee County School District of the discretion and flexibility necessary to give to every person true freedom to attend the school of his choice and will necessarily result in causing many students to attend schools other than that of their choice. 8. Defendant shows that imposing upon the Defendant of all of the requirements imposed upon the school districts involved in the Jefferson County case would drastically affect the Defendant’s opportunity to furnish quality edu cation to all school children in this County, and Defendant should not be required so to do. 9. Defendant shows that during the month of March, 1967, all persons were given the opportunity to designate the school of their choice; that all teacher contracts and as signments for the coming year have been completed; that Response of Defendant to Plaintiffs’ Motion, etc. 38 the faculties of each school have been organized; and that it would be extremely costly and administratively burden some to undertake to comply with such decree with respect to the coming school year. W herefore, Defendant prays that this Court approve its plan of desegregation and the acts and efforts of this De fendant in administering the same and permit it to con tinue to operate the schools of this County so long as its efforts in good faith seek to fully comply with the Constitu tion of the United States and satisfy substantially all of the citizens of this County. J. M adden H atcher A. J. L and Attorneys for Defendant Address: P. 0. Box 469 Columbus, Georgia Columbus, Georgia I, J. M adden H atcher , hereby certify that I am one of the attorneys for the Defendant in the foregoing case and that I have this day served the foregoing response on the Plaintiffs by placing true copies thereof in sealed wrappers, with postage prepaid, addressed to Howard Moore, Jr., Esquire, 859V2 Hunter St., N. W., Atlanta, Georgia 30314, and to Jack Greenberg, Esquire, Charles Steven Ralston, Esquire, and Henry M. Aronson, Esquire, Suite 2030, 10 Columbus Circle, New York, New York 10019, the attorneys for Plaintiffs, and depositing the same in a United States mailbox. This 5th day of June, 1967. J. M adden H atcher Response of Defendant to Plaintiffs’ Motion, etc. 39 Transcript of Proceedings [Caption Omitted] P residing H onorable J. R obert E llio tt , United States District Judge At: Columbus, Georgia, 9:30 A. M., June 15, 1967. A p p e a r a n c e s : For Plaintiffs: M r. Charles S teph en R alston , 10 Columbus Circle, New York, N. Y. 10019. M r. C. B. K ing , P. 0. Box 1024, Albany, Ga. For Defendants: H atcher , S tubbs, L and & R oth schild , P. O. Box 469, Columbus, Ga., Mr. J. M adden H atcher and M r. A . J. L and , of cousel. R e p o r t e d B y Claude J oiner, Jr., Official Reporter, U. S. Court, Middle District of Georgia, P. O. Box 94, Macon, Ga. — 1 — C olum bus, Ga. 9:30 A. M. J un e 15, 1967 The Court: We have set down for hearing at this time motion or motions pending in Civil Action No. 991 of the 40 Columbus Division of the Court, Lockett, et al. versus Board of Education of Muscogee County School District, and so forth. Do you announce ready for the Plaintiff, Mr. King? Mr. King: Your Honor pleases, we announce ready. The Court: Allright, Mr. Hatcher, do you announce ready for the Defendant? Mr. Hatcher: I f the Court pleases, in that connection, I would like to ask the Court and suggest that in light of the Jefferson case and also the decision of the Fifth Circuit in the Bibb County case suggest to us that the burden is on the respondent School Board to show why the relief prayed for should not be granted, and we would like to assume that burden, and would like to open and conclude. The Court: AH right. Mr. Hatcher: We are ready. The Court: All right, you may proceed. Dr. Wm. II. Shaw—for Defendants—Direct Dr. W m . H. S h a w , called as witness by Defendants, being duly sworn, testified on —2— Direct Examination by Mr. Hatcher: Q. Dr. Shaw, please your full name, your age, your residence and your occupation? A. I ’m W. H. Shaw, Pm 64 years old; I reside at 2870 Cromwell Drive, and I ’m Superintendent of Education for the Muscogee County School District. Q. How long have you been Superintendent of the schools in Muscogee County? A. Since September 1, 1945. Q. Will you state just briefly what your educational qual ifications are? A. I have the A. B. and the Master from 41 Duke University, a sis year graduate in administration from Teachers College, Columbia, and the Doctorate Degree from Auburn University in school administration and supervision. Q. Please state in a summary manner the growth of the schools in this County since you have come to Columbus? A. As you know, the County and the City were separate when I came here in September, ’45, but the combined en rollment for the two systems at that time was 19,930, with 48 schools. They were merged on the 1st of January, 1950 and now the enrollment as of June 2, total enrollment for the year was 49,384, with 64 buildings housing the pupils. —3— Q. What percentage of the total enrollment is Negro? A. Based on the figures I have just quoted you there, 27.5 are Negro and 72.5 are white. Q. Are all of the classes in each of the public schools in Muscogee County accredited? A. Yes, all of the high schools have been accredited beginning with Columbus High in 1913; and all of the junior high schools were ac credited—and this is by the State and by the Southern Association of Colleges and Schools—all of the junior high schools were accredited in 1965; and last November all 49 of the elementary schools were accredited by the Southern Association of Colleges and Schools as a system. We didn’t pick out individual schools. We could have take an indi vidual school here and one there but the School Board elected to accredit the whole system, and we waited until we could do that. Q. Is it rather unusual for a whole system to be accredited at one time in big city systems like this? A. Well, it is difficult to the extent that many of them just pick out certain Dr. Wm. II. Shaw—for Defendants—Direct 42 schools and have them accredited. Some that tried to get the whole system accredited last November by the Southern Association failed to do so and then they took certain schools in their system. But we said from the beginning if —4-— we couldn’t have them all accredited, we wouldn’t have any accredited. Q. What expense was incurred by the School System to bring the System up to the standards required for accredi tation! A. It is a little bit difficult but I will give you an example here so that you may have for your own self some basis for deciding that it is an expensive thing to meet accreditation standards. Preparation for accrediation took place over a three year period, that is of the elementary schools. In ’63 the total budget for the School District was $10,470,020. The schools were accredited in November, ’66, and for the school year ’66-67 the total budget for the Muscogee County School Dis trict was $15,699,296, or an increase during this three year period of $5,292,276. Of course, part of this increase would be due to the increased enrollment but a great portion of it was due to the increase in teacher salaries and the change in the number of pupils per teacher, lowering the number to 1 to 28 in the elementary and 1 to 25 in the junior and senior high schools. $300,000, as an example, $300,000 was spent for library books, in order to conform to the one standard requiring 9 books per pupil.. This is just an ex ample of how the expense had to be increased. — 5— Q. Was there any school room in any school in the Mus cogee County School District objected to or condemned by the Accrediting Association as now meeting the standards Dr. Wm. II. Shaw—for Defendants—Direct 43 of the Association-?A. No; no, we did not fail; we had to meet all of the criteria and we did not fail to meet any of the standards. Q. When was a plan to desegregate the schools in Mus cogee County first adopted? A. It was adopted by the Board of Education on September 16, 1963. Q. At that time had any demand been made by anyone or any suit filed to desegregate the schools? A. No. Q. Under the plan of this System, as amended, state whether or not the parents of all school children have been given the opportunity to attend the school of their choice? A. With the exception of 16 white parents and pupils, who are still waiting and hoping that they can get a choice which was their first choice, either Daniel or Arnold, all others have been processed and so far as I know, they have been accepted. Some did take second choices but they did that willingly and without any complaint. Q. When was the choice period for the school year com mencing in September of this year? A. It was March 1 — 6— through March 31 and we deviated that plan because the Georgia Teachers and Education Association changed their state teachers meeing by one week and moved it back to Thursday and Friday, which would have interfered with some orderly processing of filing the applications from the all Negro schools; and so, we extended that through to April 3, so as to give all of those an opportunity to over come that handicap. Q. Will you please state briefly or explain briefly the plan or the method by which each child was given a choice of schools? A. We first had a meeting of the Principals, I believe on the 20th of February, and explained to them in detail—I see some of my school principals in the audience Dr. Wm. II. Shaw—for Defendants—Direct 44 that would know this procedure—at an integrated Princi pals’ meeting, and all of our Principals’ meetings have been integrated since 1963. We explained in detail the process for allowing the pupils to have these forms, to give each pupil a form to take home for the parent to express their choice of school for their child for the 1967-68 term. We didn’t wait to anticipate how many forms would be needed. We prepared by mimeograph process more than 43,000 forms and prepared them in sufficient bundles and made them available to the Principals, to give every child in their school two, a set of tw o; so that we could have a — 7— form and we could send a form to the parent after they were approved. They were announced, in the high schools, I believe, they had assemblies, in home rooms they were announced; the Principals all have a complete list of the schools, knowing what grades were given in each school; and some parents who failed to get a form came to our office, some called and we mailed them to them; but in most cases we found that a very high percentage—I would say 99 per cent.—of the pupils took them home from the schools. Now, this is the regular way for communicating with the parents in the School District. Q. What publicity was afforded through the press? A. Well, the press is represented here today, they gave public ity to the Board’s resolution providing for this complete desegregation of our schools, which included the kinder garten and grades 3, 4, 5 and 6, were the ones that had not been desegregated; and under the Fifth Circuit court ap proved plan, of the plan that had been previously approved here in this District Court under Judge Elliott, we had until Dr. Wm. H. Shaw—for Defendants—Direct 45 1968. But on the 31st of January the Board voted to com pletely desegregate the rest of the school pupils, all grades. And I believe that everybody had an opportunity to know, not only in the paid resolution published in the newspapers, but also in front page stories, setting forth almost the —8— exact wording in the resolution adopted by the Board. Q. What about in television and radio? A. Yes, I wit nessed one evening news program, in which they read prac tically verbatim the wording, and it was done several times, and all the radios. We furnished copies of the resolution to all of the news media, all of them. Q. How many choice applications were received and acted upon by the Superintendent and his staff? A. Those received in our office, who were actually wanting to change and choose a different school from the one they were in, numbered 7,753; and, as I told you a moment ago, all but 16 of those have been finalized. Now, we passed on those 16; they are not in appeal; they are just hoping that their first choice could still be carried out and, if it couldn’t, then I ’m sure that they will accept the second choice that have told them that they could have. Q. Has there been any appeal filed with the School Board as a result of any application? A. No. Q. Has there been any complaint by anyone as a result of any application? A. No, we had some inquiries to clar ify a few things and they accepted it and there has been no —not what I would consider a complaint no. —9— Q. How many teachers are there in the Muscogee County School System? A. 1828 at the present time. Q. How many Negro teachers are employed by such sys tem? A. Even 500 of those are Negroes. Dr. Wm. H. Shaw—for Defendants—Direct 46 Q. Is there any difference in the pupil-teacher ratio in any class in any school caused by or resulting from— A. No, the same standard prevails for all of the Muscogee County schools, 1 to 28 in the elementary and 1 to 25 in the junior and senior high schools. We equalize those about 4 or 5 times a year. But Muscogee County, being a complete school district, when people move— and there are certain times of the year when they seem to move from one part of the County to the other—-we find that sometimes the en rollments will get a little bit out of line and then we im mediately—we get a weekly report on every school, we im mediately call those Principals and tell them to adminis tratively shift some where they are more than the number should be to the nearest school adjacent to them, if the other school has room. Now, we have some 8- to 9,000 pupils that are transients, that move in and out of our County during the year, and that gives us quite a bit of concern. About the time we - 10- get all of our enrollment equalized, here will come a great number to Port Benning and a great number of those people live in the County and, when they move into the County, we are subject to having to take care of them at the nearest school that they move to. Q. Will all grades be desegregated in September of this year, right? A. Yes, and the applications have been proc essed to that point already. Q. Now, state in detail the extent of faculty desegrega tion in the Muscogee County School System? A. When you use the word “detail” , Mr. Hatcher, it will take a little more time— Q. Yes sir. A. It will take a little bit more time than a yes or no. Now, these first figures that I give you will re Dr. Wm. H. Shaw—for Defendants—Direct 47 late to the extent that faculty has been desegregated during the regular term ending on June 2, and then I have a de segregation of what is now going on in our schools in the summer programs. I will leave that to last. There is one Negro teacher at our Reading Center that works with all children, regardless whether they are Negro or white. They are bussed in from the different schools according to their reading difficulty; once they have been diagnosed as having a reading difficulty, they are sent in — 11— there. And they move—this teacher has a station and when the children move from one teacher to the other, they are all processed through her part of the diagnosis, her part of this program, the Reading Center. We have one Negro consultant in English. She works mainly with English in the elementary schools. In the Adult Education Program there is one part time Negro teacher for both white and Negro students. At Columbus Area Vocational Technical School, we have one full time Negro, who conducts the work in guidance. He works with all of the pupils who are enrolled in our trade school. Now, in case the Court is not familiar, we did have two trade schools hut as of July, 1966, they were combined into one school. There are two units but they are one school. And there is a white teacher in Radio and TV, who is work ing in what was formerly the all Negro trade school; and another white teacher will go there on this July 1 because of the growth in the enrollment of the classes in Radio and TV . At the Instructional Material Center, there is one Negro who works in audio-visual aids. He is not here this sum mer; he is on leave with us to go to North Carolina State at Durham, where he will improve his proficiency in work ing with audio-visual aids. Dr. Wm. H. Shaw—for Defendants—Direct Dr. Wm. H. Shaw—for Defendants—Direct — 12— Now, here is the insert that I had for yon: In the sum mer program we have a diagnostic reading center—-and some of the little children call this the “ dognastie” reading center—we have 8 white teachers and 3 Negro teachers working there now. We have 4 white examiners and one Negro examiner. We have 4 bus drivers, 4 white bus drivers and 2 Negro bus drivers. We have 3 white clerks and one Negro clerk. And all of this group are serving 722 white pupils and 480 Negro pupils. The classes have been inte grated with no regard for race. White teachers are teach ing classes of all white children and white children and Negro children, and some all Negro children, depending on their reading needs according to the diagnostic tests. The same is true for the Negro teachers who are working in that Center. Now, in our summer remedial program, that’s different from the diagnostic center, there are 3 white Principals and 2 Negro Principals. There are 38 white teachers and 34 Negro teachers. There are 840 white pupils and 600 Negro pupils. The pupils and teachers are distributed in 10 buildings: Radcliff, Manly Taylor, Talbotton Road, 30th Avenue and Cusseta Road schools have only Negro pupils because of the proximity to these centers, I suppose. How ever, 4 Negro teachers and 5 white teachers are at 30th Avenue and are working under a Negro Principal. —13— At Manly Taylor 5 Negro and 5 white teachers are working under a Negro Principal. Beallwood, Fox, East Highland, Daniel, Muscogee Ele mentary find both white and Negro pupils with white faculties. 49 At Radcliff it is supervised by a white principal, and that is normally a Negro Center. There are 8 Negro teach ers working in this Center under a white principal. The tutoring program, which is new to us this summer, where it is one person teaching one pupli, the tutoring program employes 55 teachers. It enrolls 333 pupils at 12 school centers. Of the 55 teachers, 27 are Negro and 28 are white. At 3 of the 12 schools the faculties are inte grated. At 9 schools the faculties are not integrated. At Spencer, Baker, East Highlands and Radcliff schools white teachers are tutoring Negro pupils. Now, I have one other little part to that—I told you when you asked for the word “detail” it would be a little long, Mr. Hatcher. Beginning in September, ’63, all Prin cipals’ meetings in the Muscogee County School District were desegregated. Beginning in June, 1966—that was a year ago—all - 14- general faculty meetings were desegregated. All group faculty meetings for the purpose of studying curriculum have been desegregated since September, ’66. We com pletely rewrote and revised our curriculum and this was done with integrated committees working on all subject levels in the high schools and junior high schools, and in all of the grade levels in the elementary schools. Plans are currently underway and study has been made by a joint committee of the Muscogee Education Associa tion, the white organization, which is a private organiza tion, and the Muscogee Teachers and Education Associa tion, made up formerly of all Negro teacheis, looking to ward the merging of the two professional organizations into a single professional organization, which will become a unit of the Georgia Education Association and the Na Dr. Wm. II. Shaw—for Defendants—Direct 50 tional Education Association. And there is an article in today’s paper saying that those meeting on the State level have had some difficulty in agreeing on the details of the plan for merger. Now that, sir, covers just about the extent— Q. What about the extra-curricular activities in the School System at this time, the extent of desegregation, in athletics and other activities? A. Well, once the school was integrated, the pupils would have access and the priv ilege to participate in any activity based on their ability —15— to meet whatever the requirements are to get into such an organization by any pupil in the school. As early as the first year that we were desegregated at Baker High School, Coach Ball and Principal Broyles took it upon themselves to petition the George High School Association, that controls athletics and all scholastic activi ties, to appeal to the Hardship Committee, because a boy named Noland, who had been in Spencer, was not eligible under Georgia High School Buies to participate on the football team. He wanted to play football and the Coach took the boy and the Principal and the three of them went to Thomaston and there appeared in behalf of this boy in front of the Hardship Committee and petitioned that, since he was only allowed to attend Baker this year, that he should not be subjected to the hardship of not being allowed to play. After a week’s consideration, the Georgia High School Association voted—I don’t know by what vote—but they voted and notified us that the boy would be allowed to participate, and he did participate on the Baker teams until he moved to California. Now, if you remember, the newspaper this year carried a picture showing the Baker track team winning one of Dr. Wm. H. Shaw—for Defendants—Direct 51 the important meets in Atlanta and, if yon had not known, you would have almost have thought it was an all-Negro —16— high school because all of the people in the picture, except Coach Roberts, and the team manager and two runners, were Negro. And so, if you see the band, if you go out and see the Baker Band or the Columbus High School Band, you will see that these people who are qualified and who are proficient in playing an instrument or participating in a sport are being used. And when we had the Columbus relays here this year, which is an invitational thing conducted by the local school system, the Negro boys and the Negro citizens mingled and sat in the stands and ran on the teams and there was not a sign of any discrimination of any kind. Q. Has there been—well, I will ask you first if you can state what is the quality of education afforded the children in the County, in your opinion? A. Well, you’re trying to prod me into bragging a little and that’s not very hard to do, but I shall not say what I saw in that vein. The graduates from the—well, I want to put this in the record: Recently, because we are in the 100th Cele bration of schools in this County, I would like to tell you that in searching the records, the first high school was started in 1890, when they added two grades; and it was significant to me that the people who introduced this high school addition to the education program, which had been started in 1867, they said they wanted to base it on aca- —17— demic quality. And of the first 33 people who entered that first two year high school, two years later 20 of the 33 graduated. Dr. Wm. II. Shaw—for Defendants—Direct 52 Now, from that day down there has been emphasis on quality. We had more people in the first Governor’s School from Muscogee County than any other system and the per centage has continued to be the highest of any of the systems—the percentage, not the number. We have had Negro boys and girls to make the Governor’s Honor School each of the four years it has existed. The quality of the program has been sufficient that they go from here to all of the best institutions and succeed. Q. In the implementation of the desegregation plan, ap proved by the Fifth Circuit and this Court, has there been any disruption of the educational process and the quality of education afforded? A. I would say no but I do want to explain that a little bit. There was some fear, when the Board decided voluntarily in 1963 to desegregate these schools, there was some fear by a considerable number of people that the quality would suffer, but I do not believe that has been the case and there is no indication from our academic record that that has been the case. Now, if a pupil is in one school and is a poor pupil and transfers to another one, the chances are he will maintain about the same kind of a record; and if a lot of those were to transfer, —18— that would in the end make the record in that school some what lower, the median record; but there’s not been enough of that to say that there has been any significant differ ence in the quality of education in our county up to this time. Q. Have all of the teacher contracts and assignments for the ’67-68 school year been completed? A. Well, the word “all” is not a good word there but we would say that all that we can get who are qualified have signed their contracts and they have been assigned and our organiza Dr. Wm. H. Shaw—for Defendants—Direct 53 tions have been set up for next year. We still have vacancies. Q. Do I understand you mean the organizations in each particular school? A. Each school based on the number of pupils who were transferred by choice from one school to another, their classes; they notified the personnel office, Mr. Carson, how many teachers were needed and then, based on the pupils who are in that school closest to that school and the number who were assigned, we notified them and we notified the parents and we notified the school from which that child was asking to leave, so that they would have some orderly way to make up an organization for September. Now, all of those organizations have been set up and there are some vacancies that will have to be filled. But — 19— this goes on every year and up until a week before school opens we will have somebody getting married, somebody getting pregnant and somebody leaving and somebody fol lowing their husband because he’s transferred from Fort Benning and this will go on until September; and when school opens, it will still go right on because we lose about 20 teachers a month and have to refill these places all during the year. So, when you say “all” , it can never be total, Mr. Hatcher. Q. When did the pupils terminate their school year this year? A. June 2. They got their report cards on June 9. Q. In what respects has the Muscogee County School System anticipated and stepped ahead of the plan as ap proved by this Court? A. Well, of course, it’s a record that the Fifth Circuit told us, when they reviewed our case that was appealed from this Court, they told us to move from both ends, from the top and the bottom at the same time at least one grade a year, and to complete our de Dr. Wm. II. Shaw—for Defendants—Direct 54 segregation by 1968. The plan has been amended three times voluntarily by the Board and each time it has been in advance of what the Court had said once it had spoken to us about it. There has been one desire that has predominated from the time the Board has made its decision in 1963 to de- — 20— segregate, and that was to keep the plan flexible, so that as the changes came about and there was no difficulty encountered, they would be ready for the next step; and that, I think, has served as the motivating factor in caus ing the Board to step ahead each time when they found out that what they had done had been accepted by the citizens as a whole, not every individual because there have been some individuals who would not accept any thing that would happen in this regard, as you know. But there has been no deterring factor; there have been no situations that prevented this Board from moving ahead each time to the next step without waiting to be told by the Court or someone else to do so. And I think we should place in the record here that in the very beginning, the U. 8. Office of Education and the officials at Fort Benning and representatives of our Board met at Fort Benning and talked over this situation; and decided that the Board would begin without being forced to. Of course, pretty soon after we started, there was a suit that was brought that people have probably assumed that the Plaintiffs didn’t know at the time they started their steps that the School Board would be adopting a plan. And I think we should put this in the record too, Mr. Hatcher, that the public libraries and the museums in this County are under the Board of Education; and there has Dr. Wm. Ii. Shaw—for Defendants—Direct 55 Dr. Wm. II. Shaw—for Defendants—Direct - 21- no ugly incident at anytime with the desegregation of these facilities and the free use of them by all citizens. And that is not something to be overlooked, as I see it. Q. With respect to the parent school organizations, the parent-teacher organizations, has there been any integra tion of those organizations in the various schools! A. There have been meetings of the two councils. There are two councils and all of you in this room know that private organizations don’t just fold up easily. There are certain personalities in them that always want theirs to be the one that continues to exist, and they still want to have the president of one, if they’re going to merge one, and things of that kind. But at the school, if you go to a parent- teacher meeting, the schools having a goodly number or even a small num ber of Negro children assigned to them after they ex pressed a choice, you would find Negro parents in those meetings in those organizations. Yes, they do attend. And at our commencement, that lasted for six nights recently, you found ample room and place and acceptance of the Negro parents who were there to see their seniors march across the stage from Baker High and Columbus High. They were the only two that had seniors graduating, 9 at Baker and 6 at Columbus High. There was not an ugly incident about it and these children took their places normally and the parents sat scattered all over the place; — 22— nobody told them where to sit. There was not even a marked ticket or a marked section of any kind. And I did not observe, I would like to tell you, I did not observe any vacant seats; where I saw Negroes, I did 56 not see any vacant seats where somebody didn’t want to sit next to them. Q. Are you familiar with the plan of desegregation at tached as an exhibit in the Jefferson County case! A. Well, I ’ve read it a couple of times; I think so. Q. What expense and difficulties and hindrances would result if the Muscogee County School System was re quired to commence this summer to have another choice term of one month, of mailing to each pupil a letter of explanation and a choice form and complying with the other terms of the decree with respect to the coming term beginning in September? A. Mr. Hatcher, you asked me if I read that plan and I did; and I doubt that any court, if they look into the careful way that we gave every child a choice— Mr. King: Look into what? The Witness: Looked into the method and the way that we gave every child and their parent a chance to make a choice of schools, and the fact that we chose a whole month and extended it; and when wTe chose that whole month, we thought that —23— was going to be one the Courts and the TJ. S. Office would select; and they did select it beginning for next year but somehow or another they slipped in a different one from May 1 to June 1. But we had already gone ahead with our March 1 through March 31, which we thought was ample time. And we did that mainly so that we could get the schools organ ized and set up in an orderly way for next year. Now, you asked me how expensive it would be: well, if you multiply 5 cents times 43,000, you’ll see Dr. Wm. H. Shaw—for Defendants—Direct 57 that it would cost more than $2,000; and with the fluent population that we have in this County, if you sat down now and tried to address envelopes to every one of them, there would be a great num ber of them that would be returned and some of them have already left the County and the parents have been shipped away with one phase of the Army or another. And it would be great confusion and I don’t know how long it would take us to do it, be cause we’ve never had to do such a thing. W e’ve never communicated in that manner. Now, the parents that asked transfer, we mailed their approved transfer or choice of school to them, so they could get it. And I would like to tell you that in a few cases, maybe a half a dozen, where the child—it turned out that the child had made the choice and the first the parent knew about it would be when the mailed approved form came, and —24— if they liked it, we didn’t hear from them; if they didn’t like it, they called us or simply wrote us a little handwritten note and we changed it to con form, unless the child was 15 years or older; and then we called to their attention that the Court said that a child 15 years old or older had the right to make this choice himself or herself. And we had maybe 2 or 3 cases that way. Now, to tell you how much it would cost, I am not in a position to tell you. We would have to live through the chaos of trying to reorganize the School District with everybody making another choice all over, and a lot of those who made a choice would make a different one at this time because we are Dr. Wm. II. Shaw—for Defendants—Direct 58 still getting requests from some of them who made a choice who want to change it. Q. What about teacher desegregation! A. Well, I told you back there a while ago to what extent we have done that. The Fifth Circuit said in its review of our case that they would speak to that later. We had hoped that we could get this complete desegregation of the regular school classes over with this year, once and for all; and then I suppose we would continue with additional desegregation of the faculty. Q. What difficulties would result in undertaking to com ply with the provision regarding faculty desegregation in the Jefferson decree for the school year beginning in Sep- —25— tember, 1967! A. Well, it would be quite a task to re assign and know what would happen if you started shuffling over 1800 teachers around, after they have had their as signments fixed for the year and signed their contracts and gone home. Now, there is a provision in all of our teacher contracts that they can give us two weeks notice and quit; and they don’t necessarily have to give any reason. They can just write in and give us two weeks notice and be gone. And we have a difficult time getting qualified teachers in this County, and my guess is that we would have a lot of vacancies of teachers, if we start bothering with them at this time of the year. Q. Is there any difference in the pay schedule in Mus cogee County teachers based on any race, color or creed! A. No, and there has not been since 1946. Q, I ask whether or not, in your opinion, the plan of Muscogee County School District and the implementation of that plan by the administrative staff and the School Dr. Wm. H. Shaw—for Defendants—Direct 59 Board conforms to the standards set out by the United States Fifth Circuit Court of Appeals in the Jefferson case, in your opinion? A. Well, Mr. Hatcher, there is a great similarity in what we’re doing and what the Court has directed all other school to d o ; and it’s rather unusual that in our anticipation and moving forward by amending — 26— our plan from time to time that we have found out at this point that we have, that we are almost in line. We have not done some of the things that the U. S. Office said do in their guidelines, and I believe the Court has tempered some of those guidelines, though in general they said they were embracing the guidelines. And I would have to say that there is only one major area that we are not in what, I guess, the Court would call conformity to that decree; and that is in the desegre gation of the general classroom teachers. Now, there’s some effort made in some school districts to know where to begin. The best time to begin is when you have some teachers, good teachers, who are willing to do this, and then it’s up to the Superintendent to assign those teachers and all other teachers in a situation where they can succeed. If a teacher is put in a situation be cause of force, because somebody is required to put them there, in the first place, nobody can make the teacher work; she doesn’t have to teach there. Q. Dr. Shaw— A. She could retire and with a few weeks, with two weeks notice even during the school year. Q. Dr. Shaw, I will ask you one final question, sir: Since the Muscogee County School District has adopted — 27— its plan of desegregation, has there been any complaints or conferences or communications regarding the plan be Dr. Wm. II. Shaw—for Defendants—Direct 60 tween you and the Health, Education and Welfare Depart ment or the Department of Justice? A. None. Q. Or Fort Benning? A. Oh, we communicate with them just as though they might be part of our School System because all of the high school pupils are trans ported from Fort Benning by the Army to the high school of their choice in Muscogee County. Q. I mean no complaint or criticism about its operation? A. No. Q. About its operation? A. They would call us, if a parent didn’t call us and called Colonel Bouse, Colonel Bouse would call me and I would call the Principal and, if it was something that was just a routine matter, it would be dealt with in such a manner to the satisfaction of everybody concerned. Cross Examination toy Mr. Ralston: Q. Mr. Shaw, you say that there were approximately 27.25 Negro pupils in the School System, is that correct? A. That is according to the figures on June 2 of the total enrolled this year. —28— Q. That would be by my rough calculation a little over 13,000? A. Yes, I could give you that exact figure if it would help your record. Q. Well, that’s all right but it is around 13,000? A. Yes. Q. Of those 13,000 students how many are now attend ing formerly all white schools? A. You want for the year ending or those that have been approved for next year? Q. Well, I would like to have it for both, for the year ending and the year coming up? A. All right, if you’ll give me just a second, I ’ll get that for you. . . The num- Dr. Wm. H. Shaw—for Defendants—Cross 61 ber in white schools in November, ’66 was 316; and since that time some have moved in because the Fifth Circuit said that any child who moved into the District could go to the school of his choice, if there was room in that school. And we found that the Muscogee Elementary School, where we had approved and included in that 316 some half dozen children, there were more than 25, because their parents had moved into Baker Village Housing Project that was desegregated during the year, and they normally went there; they were near to it. There are approved 550 for September, who were formerly in all Negro schools —29— who will be going to what was formerly all white because some of those had a larger number of the 316 in them. Now, additionally, to get the whole picture, enrolled in the adult education and manpower classes are 1 1 2 ; the number enrolled in the Columbus Area Vocational Techni cal School and the two units of that are 275; and all of those together give you 1253. Q. Let me get this straight: For this coming school year there will be a total of 550! A. 550 additional ones. Q. Oh, additional! A. Yes. Q. So, the total would be approximately 8 6 6? A. Yes. Well now, there will be more than that because I would like to explain to you : in 1963 the emphasis was on losing the identity of color. And we were told that we could make nothing on our records to show whether a pupil was white or colored; and so, when they once are assigned to the school, there’s no record of whether they are Negro or white. And to find out how many have moved in there during the year, we would have to go around and count them and say—if there’s a doubt and in some cases, I could tell you two cases where nobody knew what they were until they told, and they wanted to change. You would have Dr. Wm. II. Shaw—for Defendants—Cross 62 Dr. Wm. H. Shaw—for Defendants—Cross —30— to go around and count noses to find out exactly how many have moved in during the year, because we were told in 1963 to forget about recording anything about whether they were Negro or white. Q. Well, there would be approximately a total of about 900 this coming year? A. There would be at least that many or more. By the Court: Q. Well, what was your 1200 and something figure, what was that figure? A. That included the ones in the adult classes and in the trade school classes, Judge Elliott. By Mr. Ralston: Q. In your regular elementary and junior and senior high schools? A. It will be around a thousand, yes; and there will be others who will move in this summer, who will be entitled—now all grades will be open in September. By the Court: Q. What’s that thousand? Is that for the past year? Is that what you’re telling us? A. That will be for the coming year. Q. What was your figure for the past year? A. The figure for the past year was something over 300. In No vember the last count that we had was 316. —31— By Mr. Ralston-. Q. That was just in the elementary and junior and senior high schools? A. And high schools; that did not include the adult schools at that time. 63 Q, Do you have the total for those schools at that time? A. Not at that tme; we didn’t make that count at that time. Dr. Wm. H. Shaw—for Defendants—Cross The Court: I want the record to be clear on what we’re talking about now. You gentlemen can bring it out yourselves definitely but if you don’t, I ’ll try to myself. I don’t want any confusion here about it. By Mr. Ralston: Q. Well, maybe we had better go through these figures here again to clarify it: First, will you give for November, 1966, the total Negro students attending formerly all white schools in the regular elementary, junior high and senior high schools? The Court: You said November, 1966? Mr. Ralston: Yes. The Court: Why do you pick November? Mr. Ralston: Mr. Shaw indicated that was the last month they had a count on it. A. (The W itness): In November, ’66, someone I believe —32— from the State Office had asked us for the number of Negro children at that time in our formerly all white schools; and we asked the Principals to go around and make a count; and in November, 1966 that number was 316. Now, that changed some during the year because children had a right to go to the school of their choice, if there was room, if they moved in, in any grade, according to the Court order. Now, I don’t know how much the 316 would change but let that figure stand 316 for the school year ’66-67. 64 Q. Now, after the choice period was held— A. There were 550 more who were approved and they have been processed and approved to go to the school of their choice. Q. So, you know that there will be at least for the coming school year a total of around 866? A. Well, 15 of those 316 graduated. You see, you’ve got to get a cer tain date and then audit it out that day to be exact; so, you can say approximately and I think it will answer the purpose that Judge Elliott wants; is that right, Judge? The Court: Well, what is it? You say approxi mately what? The Witness: I gave the figure 316 for November, 1966. By the Court: Q. Well, let me ask 2 or 3 questions here: As I under- —3 3 - stand it, the best information you have for the year 1966 is, in the fall of 1966 you had the number 300 and what? A. 316. Q. Then, by the end of the school year just ending, what had been the increase, what was the figure according to your best information by the end of the school year? A. We did not have a figure. Q. You don’t have a figure? A. We approved a new group though to go in September. Q. Now, for the coming year, 1967-68, according to pres ent records, considering the applications you’ve had and everything that’s been done, what will be the figure at the opening of the school year ’67-68; that is, of Negro children attending what were formerly white schools, all Dr. Wm. H. Shaw—for Defendants—Cross 65 white schools? A. All right, you’ll have to take out the 15 who graduated; I know they wouldn’t be coming hack. Q. I just want you to give me a figure? A. 550 plus 301, would 851, approximately. By Mr. Ralston: Q. That’s attending regular elementary and junior and senior high? A. Yes, that does not include nay adult or —34— any trade school. Q. And could you again give me the figure for the adult school and the vocational school? A. The adult school and manpower program had 112 and the Columbus Area Voca tional Technical Schools, both units, 275. Q. Now, looking at the choice period that was conducted this year, March 1 through March 31, were all students required to make a choice during that period? A. They were all given a form but there was no requirement or no penalty if they did not make a choice. Q. In other words, the provisions of the Jefferson County decree, the mandatory choice for all students, white and Negro, was not a part of the plan? A. 'Well, if you’re a pupil in a school and you’re given a form and you do not express a choice because you’re in the school and you want to stay there, we assume you’ve made a choice; and I think the Jefferson plan assumed that be cause they said that any pupils who had not made a choice by a week after school open would be administra tively assigned. Q. Well, what is the procedure for assignment in your schools of those students who do not make a choice in the choice period? A. If they are in that school attendance area and live nearest to it, they are automatically assigned Dr. Wm. H. Shaw—for Defendants—Cross 6 6 Dr. Wm. H. Shaw—for Defendants—Cross —35— there until they leave or until they express a choice to go to another school. Q. So, a student who is going to one school, who did not choose, who did not send in a choice form, but who lived closer to another school, would he be transferred to the other school? A. I f he were in that school, he would not be closer to another school, because the way we have constructed the schools he would be attending the nearest school already, unless that school was overcrowded, and he might have been administratively assigned to that school. Q. Well, let’s assume that the school is overcrowded and you have some students who made a choice under the period and other students did not make a choice, would any priority be given for prior attendance in that school? A. No; no, if he didn’t live nearer to the school than the one outside that was making a choice, he would not get priority because we are acquainted with the fact that the Court said that could not prevail. Q. But you do not require one to make a choice? A. Well, I think you’ll find that in ‘most all of the schools that those choice forms are returned but to have some 86,000 pieces of paper returned to our office where there was no change involved and no approval required. I am —36— required under the Board of Education to actually process all of these changes finally through my office. Q. You have indicated that 7,753 forms for change were returned: how many total forms were returned? A. Well, they are the total forms returned to our office and proc essed, who indicated a change. Now, I do not have the figure on how many are out there in the school that indi- 67 catecl no change at all but simply filled it out and left it there with the principal in the school. Q. So, the only ones that came into your office for processing were those indicating a change? A. Were 7,753 and they’ve been processed. Q. Did the Principals process in any way the other forms that did not request a change! A. Do they process them in any way? Q. Yes, and what happens to those forms in deciding where to place students? A. Well, they notify the chil dren in that school that they will remain there for the next year and they include them in their organization. Q. Do you know of any instances where children, who have been in a school and who have not indicated they want to change schools, have not exercised a choice, have been moved out of the school to make room for children who have exercised a choice? A. There’s none of that has — 37— been approved in my office, no. Q. Do you contemplate that that might occur by the end of the school term? A. I don’t know. I would have to have such a request. I can tell you this, that any person who was refused or asked to make a second choice was checked carefully by a map to see who lived nearer to a school. In some cases we even call the Principal to have them check out the case to see exactly where they lived. Q. Could you indicate why a mandatory choice was not required and set out in the form sent out, in view of the Fifth Circuit’s opinion and in view of the motions filed in this action? A. Well, of course, we were not under that decision at the time. That decision hadn’t been finalized until the 29th of April, I believe; and our choice and every Dr. Wm. II. Shaw—for Defendants—Cross 68 thing had been closed at that time, and a great number of them had been processed. Q. But you have indicated that it would be a great burden on you to have a new choice period! A. It would be quite a burden; there’s no doubt about that. Q. Well, in view of this and in view of the fact that before the choice period was set up, motions were filed - 38- in this action to have the choice period that complied with the Fifth Circuit, why were not the specific provisions of the Jefferson County decree complied with, in order to avoid— A. You mean about mailing out letters and so forth ! Q. And also about making it clear that there is to be a mandatory choice on the part of all pupils! A. Well, I think we made it clear that everybody was to make a choice. Now, if you are belaboring the point that they didn’t actually fill out one and file it and then have us sign it, saying that they could stay right where they were, that was not done, and I did not inform my Principals to enforce that kind of a detail. Q. Do you have a copy of the notice and the choice form ! A. Yes, I do have a copy. There’s a letter to the Princi pal—you can have that whole set if you like. And to at tach with that, Mr. Ralston, I believe you would want this because each Principal needed to be able to answer parents on what schools had certain grades in them, where they were located and who the Principal was. Mr. Ralston: All right. Will you mark this as Plaintiff’s Exhibit! . . . Your Honor, I have had marked as Plaintiff’s Exhibits 1 and 2: first, Plain tiff’s Exhibit 1 is a list of schools that was made Dr. Wm. H. Shaw—for Defendants—Cross 69 Dr. Wm. H. Shaw—for Defendants—Cross —39— available to the Principals to inform the parents; and Plaintiff’s Exhibit #2 is the packet, which was sent to the Principals to be given to parents, in cluding notice, choice form, etcetera. And I believe counsel for the Defendants have stipulated that they may be introduced in evidence as true copies of what was sent out for purposes of the choice. The Court: All right, they are admitted without objection. By Mr. Ralston: Q. Mr. Shaw, I call your attention to this sheet, which is resolution to amend the plan to desegregate the schools of Muscogee County, Georgia: this was handed out to parents as part of the packet! A. Yes, each parent re ceived a copy of that with this letter. Q. Now, this is an amendment to the plan! A. Yes, that is correct ; and previously, when the plan was first adopted, copies of the plan were sent to all parents; and each time it was amended, copies were sent. We are not doing this just because this was lately being required. We have been doing this all along. Q. Do you have a copy which would set out the entire plan! A. I do not have that with me. It’s in the Court’s —4 0 - journals and records. I could furnish you with a copy; I do not have a copy of that with me. Q. Mr. Shaw, in view of the fact that you have indi cated that you have a large transient population, who move in and out of the County every year, how are the parents of those pupils made aware, not just of the amendment to the plan but of the entire plan to desegre 70 gate the schools? A. Well, all Principals of our schools are supposed to serve, not only the parents who have been in their school area or neighborhood, but they are supposed to look out for the new ones and get them enrolled and inform them. Q. Are Principals instructed to provide copies of the full desegregation plan to all parents who are new to the System? A. No, I have not specifically told them to do that, hut they all have copies of the full plan. Q. The Principals have? A. Yes. We have to make use of those 64 key people out there to administer effi ciently a school system of this size, Mr. Ralston. Q. But you don’t know whether or not they have done that? A. No, I do not. I do not know that. Q. And you have not instructed them specifically to fur nish copies of the full desegregation plan? A. To each —41— new person moving in to carry them a copy? No, I have not instructed them to do that. Q. Now, turning for the moment— Now, Mr. Shaw, look ing to the question of the new choice period for a moment, you estimated postage expense of $2,000 for carrying out such through the mails? A. Just stamps alone; just stamps alone. Q. That is based on the total school population? A. Yes, correct. Q. Could you give me any estimate of any other cost? A. We would have to witness that to know exactly. I think an estimate would just be a stab in the dark and it wouldn’t serve any purpose. Now, of course, the Court decision that you keep referring to so often said that this was not necessary if the School Board felt—I ’ve forgotten the words—“ not feasible or something or too costly.” Dr. Wm. H. Shaw—for Defendants—Cross 71 Q. Would there be any other feasible method for getting new choice forms to parents for the coming school year? A. Not this time of the year, no. About the surest way to reach the parent is through the children. That’s the reason we use it extensively to reach them. By the Court: Q. Has it been your experience that that method is —4 2 - effective? A. It is an effective way; we’ve used it for more than 20 years here; it’s the way that we communicate with the parents over and over, and we deny this to any agency who wants to advertise to the parents, because we don’t want to jeapordize the sincerity of something being sent home from the school by the children to the parent. By Mr. Ralston: Q. Hid you take into consideration or possible account last January or February when you made this decision to hold the choice period the possibility that a new choice period might be ordered by the Court? The Court: What was that question? I didn’t understand it? Mr. Ralston: I ’ll rephrase the question. The Court: It’s not a matter of rephrasing it; I just didn’t understand it. I couldn’t understand the language, couldn’t understand what you were saying. By Mr. Ralston: Q. Last January or February you decided to hold the choice period from March 1 to March 31; is that correct? A. Yes. Dr. Wm. H. Shaw—for Defendants—Cross 72 Q. Now, when you decided to hold the choice period in the way you did, did you consider the possible additional expense, if the Jefferson County decree was applied to —43— your School System, so that a new choice period might become necessary? A. Mr. Ralston, it’s a record and I ’m sure you know it that the Jefferson County case hadn’t even been decided at the time we were doing this. Q. But the first Jefferson County decree had? A. That was January 29, I believe, if that’s your question. Q. And motions had been filed in this case to require the Jefferson County decree in this action; is that correct? Were you aware of these motions? A. Well, the first time the Jefferson County case got to the Fifth Circuit and it looked like that it might begin to apply as a sample case to all other cases in court, we were well under way with this plan and the date March 1 to March 31 had been well selected. Now, in previous years we had used the month of February but we felt there might be some question about not being 30 days and we move to a whole month that had an extra day in it, so there wouldn’t be any one who would say this was not ample time. And then we did stretch that an extra three days, so that anybody who was inconvenienced because of the teachers’ meeting, that there would be time for that. And then, we continued to take those who, for one reason or another, said that some body misplaced it and they thought it had been sent in and —44— it hadn’t. So, I ’m saying I think our period for choice was ample. Q. But you don’t deny that on January 30 and February 15 motions—that is before the choice period was actually carried out—motions were filed in this case, which indicated Dr. Wm. H. Shaw—for Defendants—Cross 73 that this plan in effect here would be brought up to the Jefferson County standards and, therefore, might require a different assigned choice period? A. Well, I read every thing of any importance that got in the papers; and from time to time we did discuss; and, as I told you, we tried to use our best judgment in amending or changing wherever we thought it would be proper. Q. Then, 3-ou or your attorneys knew that motions had been filed before the choice period was carried out? A. Well, there was some change, some quick change made. They first said it would be, the whole thing would be in May or something; and then all of a sudden they changed to March 1 to March 31 in years following this year; but this year they were going to require it be May 1 to June 1. And there was quite a shifting behind the scenes about that date business, Mr. Ralston, if you’ll go back and check it. In the meantime, we had to get along with the business of giving 43,000 people a chance to make a choice and then making assignments and making up the school organization. Q. But there was nothing to hinder you from making —45— it clear to all children or parents in your School System that every child had to make a choice and that certain pri orities would be set up for those who made choices in the choice period and those who did not make choices would not be given preference because of prior school attendance; there was nothing to hinder you in this choice period, March 1 to March 31, from complying with all of the standards of Jefferson County? A. Well, it was not clear to us that we had to make everybody do something at that time, if they were going to the school where they wanted to go and lived nearest to that school. Dr. Wm. H. Shaw—for Defendants—Cross 74 Q. There was no greater burden, administrative burden, for doing that at that time, was there? There was no reason why you could not? A. No, no. I don’t know ex actly what you’re trying to get at but I could see no great burden in that. We did furnish them all with a dupli cate copy of the form. Q. Now, moving to the situation of your faculty, you’ve indicated that for this past school year there were no Negro teachers teaching white pupils in regular classes; is that correct? A. That is correct, yes. Q. And the only faculty integration of any sort was in special classes and special schools? A. That’s right. —46— Q. And likewise, there were no white teachers teaching Negro classes, is that correct? A. That is correct. Q. What plans do you have at the present time for bring ing about integration of regular classroom teachers for this coming school year? A. Well, from time to time this point has been discussed with the Board members and in committees and different ones of us; and we felt that the best thing to do was to continue in an orderly way without disrupting the educational program, to get all of the classes of pupils in the school system desegregated and then we would begin on this faculty desegregation; and we have made a beginning, as I related that to you and it has been re corded here, I ’m sure. Q. How many schools are there now that have entire Negro student bodies? A. That have what? Q. Have entire Negro student body? A. I believe there’s 19 Negro schools in the System and we found by the proc ess of mixed marriages, miscegnation cases moving in here, we found 2 or 3 white children in school where they had a white mother and a Negro father; and some of them came Dr. Wm. H. Shaw—for Defendants—Cross 75 to us as hardships and wanted to transfer and we worked —47— with them. I would say—and we know that one white family has applied for their child to go to what was for merly an all-Negro school in September. That was ap proved. So, I think to answer you specifically, we would say there were 19. Q. How many white students total are contemplated will he going to school next year ! A. Well now, I didn’t know you were going to ask that question. This is a big thing to answer because you’ve got to take every school. Q. Excuse me, I ’ll change the question: How many white students will he going to formerly all-Negro schools? A. I told you one. Q. Just one? A. Now, those in miscegnation cases, I don’t know until they show up and say that “we are in a mixed family and I ’m either a white child by a former hus band of my mother’s and I want to go somewhere else other than where my parents sent me when I came here.” Usually those mixed cases choose a school according to the neighbor hood they live in and we had one boy who came in and claimed a hardship, who had entered a formerly all white school and remained for three months, when he asked to see his Principal, said he had a problem and when he sat down in closed office and asked him what was his problem, he said “ I am a Negro and I have passed as a white boy ever since —48— I’ve been here; I ’m most unhappy; will you let me transfer to Spencer?” We required his parents to come to the school and talk to us and they said that when they moved here from New Jersey, the parent said that the boy wanted to go to Spencer and they insisted that he go to Baker. After this situation confronted all of us and the boy said he was very Dr. Wm. II. Shaw—for Defendants—Cross 76 unhappy, he did not cite a single incident except he was unhappy, just unhappy. We asked then if they wanted to transfer him then under our hardship provision and they said yes; and we let the boy transfer; and, so far as I know, he got along all right. Now, it’s hard to say how many people who are white or colored, when you have as much mixed race as you find in the American population today. Q. But you have indicated that it is your present plan not to bring about desegregation of the faculty for the all Negro schools until there is some desegregation of those schools? A. Well, I think if you were listening a moment ago, you found out that white teachers are teaching all Negro children in some of these classes this summer, and this is a stepping-stone toward making it possible for gen eral desegregation of faculties. Q. Well, how about for the next regular school year? A. Well, there is no plan at this time and there is no —49— teacher assigned at this time, no Negro teacher to teach in an all-white classroom situation and there is no plan to— well, I will wait until you finish because I ’m sure you’re not listening (Mr. Ralston and Mr. King conferring) . . . Q. The summer programs, are these by and large sub sidy funds from the Federal Government under Title I? A. Yes, they are. Q. Are these by and large—you indicated this is the first summer that you’ve had these programs? A. No, we had programs last summer. We had the reading last sum mer; we did not have the tutoring program last summer. Q. Does the Federal Government require that these pro grams be integrated, both faculty and student body, before they are sponsored? A. The Federal Government has Dr. Wm. H. Shaw—for Defendants—Cross 77 stipulated at all times that they want their Federal pro grams integrated, yes. Q. So, that is the primary basis on which the faculty of these programs are integrated, is that correct? A. Yes, it is required by the Federal Government. Q. Yon had to submit a proposal and a condition of ap proval of the proposal was that the faculty would be inte grated? A. Would be integrated, that’s right. Q. Now, how many vacancies do you have for this coming - 5 0 - school year on the faculty? A. As of Monday, we had 88. Q. These are both white and colored schools? A. Yes. Q. Do you have any plans for filling the vacancies in a white school with Negro teachers and the vacancies in Ne gro schools with white teachers? A. No, I have no plan to do so at this time. Q. When a teacher comes to you and says they want to work in your school system, do you tell them or do you contemplate as your policy to tell them that it is the policy of your school system that white teachers can be assigned to Negro schools and Negro teachers to white schools; has that been mentioned at all? A. No, there is a provision in the contract though which they read, I ’m sure, before they sign it, that the Superintendent may assign or reassign any teacher within the School District whenever it becomes necessary. Q. But that doesn’t say anything about white teacher being assigned to Negro school? A. No, we were told in 1963 to erase all references to race and color from our forms of all kinds and we did. Q. Well, do you tell teachers who apply that you are desegregated and that they may be assigned to formerly all Dr. Wm. H. Shaw—for Defendants—Cross 78 Negro schools'? A. No, we have not made any point out — 51— of that, Mr. Ealston. Q. You have student teachers'? A. Yes, we do. Q. Are any of the student teachers, white student teach ers placed in Negro schools? A. No but one has been ap proved for next September from Auburn University. They have asked to have one approved and we have approved it. Q. And do any Negro student teachers practice teach in white schools? A. No. The only institution that has asked us to cooperate with them in practice teachers is Port Val ley State and they have selected in advance the schools they would like to do their work in ; and they have not requested to be allowed to work in a white school. Q. Well, doesn’t your office have any say as to where student teachers will be placed? A. Yes, but if they re quest to be in a certain school, unless we have a good rea son not to approve it, we would let them work in that school. Q. Is Port Valley State a State school? A. Yes, it is. Q. And it is a Negro teacher college? A. Yes. — 52— Q. Now, you said there were 88 vacancies? A. There were Monday. Q. And there are 67 schools? A. 64. Q. 64 schools? A. There will be 65. We have been talk ing about 64. There will be 65 next September. Q. Now, are these vacancies distributed pretty much evenly; that is, on the average approximately one vacancy per school? A. I didn’t check that up to see when I asked the Personnel Office to give the number on Monday. We were beginning—last June 9 we ended officially one year and we were headed out into a new year and I asked the Dr. Wm. E. Shaw—for Defendants—Cross 79 Personnel Office to tell me how many vacancies existed. Q. But these vacancies are probably distributed fairly evenly! A. Oh yes. There would probably be some in the whole school system, although we’re having more difficulty getting qualified teachers in subject-matter fields in the secondary schools than any other place. Q. So, so far as the contracts you have signed with teachers in the system, there would be no administrative difficulty in filling vacancies in schools that exist now and achieving at least some faculty desegregation for this com- —53— ing school year, if you made the policy known to applicants? A. Well, you could assume ’most anything. I don’t know what the actual results would be. Q. Well, this wouldn’t require any change of contracts? A. It would not require changing of contracts with teachers who are already under contract. Q. And it would not require any reassignment of teachers who are now in the system because you would be filling vacancies with new applicants; isn’t that correct? A. I can’t imagine that we would just take somebody who is al ready assigned and say “You are ousted and we’re going to put a new person in your place.” We don’t do it that way. Q. But what I ’m saying is that, because you have these vacancies to fill, you could bring about some faculty de segregation, without the necessity of reassigning teachers already assigned to schools in the system? A. Yes, that would be possible. The Court: Let’s take a break of about 10 minutes. Dr. Wm. H. Shaw—for Defendants— Cross 80 Dr. Wm. H. Shaw—for Defendants—Cross R ecesss 11:00 AM to 11:15 AM— June 15, 1967 By Mr. Ralston-. Q. Mr. Shaw, you have indicated in your testimony on direct examination that all of the schools now are accredited —5 4 - in the entre system; s that correct? A. Correct. Q. And you’ve indicated that on the whole the quality of the facilities in the schools, at least in so far as they come to the standards of the accrediting institution, are equal, is that correct? A. That is correct. Q. Now, are the same qualifications and certification re quired and applied to all teachers, both white and Negro that come into your system? A. Yes, no one is employed in grades 1 through 12 without the minimum of four year college degree, with a Georgia teacher’s certificate based on that. Q. Are the requirements of the National teachers exam applied? A. We do not require the National teachers exam. That is required only of people in Georgia who ap ply for the six-year certificate. That is one of the requisites for the six-year certificate. We have 91 people in this County with 6-year certificates and one is a Negro, Mr. Lindsey, the new Principal of Spencer High School. Q. Generally, the same qualifications are required for both white and Negro teachers? A. Well, it would be rather boring, I guess, to go into the details of how teachers are certified. They are certified on the basis of a copy of — 55— their college transcript; and then when they teach, they are supposed to teach in their field of major preparation. There is a requirement now in Georgia that all teachers must, to 81 get State aid on them, they must teach in their field, their teaching field. Q. Now, you’ve indicated that the contracts for this com ing school year for teachers have been signed; isn’t that correct? A. Yes, all of those who are here and who have been recruited, yes. Q. Have all of the teachers been assigned to their schools? A. All of the teachers have been assigned who are presently under contract, yes. Q. Well, isn’t it true that there are some teachers who have not yet received their actual assignments? A. Well, there are 88 who haven’t been employed that haven’t re ceived them, Mr. Ralston. Q. I ’m speaking of teachers under contract? A. But the other people have received their assignments; yes, they know where they’re going to be teaching. Q. The contracts do not set out that the teachers have been employed only to teach in a specific school, do they? A. No, I told you a moment ago that there is a phrase in —56— the contract, a provision in the contract that the Superin tendent may assign or reassign teachers. Q. In view of the quality of the teachers and the provi sion in the contract, it wouldn’t in fact be an overwhelming administrative burden on your office to assign a certain number of teachers, white teachers to Negro schools and Negro teachers to white schools, in order to make a start toward desegregation of the faculties, in compliance with the requirements for this coming year as set out in the Jefferson County decree, would it? A. Mr. Ralston, the mechanics of that is not the biggest concern in that opera tion. Dr. Wm. E. Shaw— for Defendants—Cross 82 Q. But there are administratively, the mechanics, you said, are not a noverwhelming burden ? A. Well, you could just say “ go over here and teach” and “you go over there and teach” , and tomorrow you might reassign 25 teachers that way and tomorrow morning you might get 24 or 25 resignations. Q. Mr. Shaw, has your office and you as Superintendent talked with the teachers, either collectively or singly, to try and find out whether there are teachers in your System would be willing to teach in schools predominantly not of their color I A. I have talked with some of them and some of them have talked with me; and they know my attitude and I know their attitude and I know some who would be willing to do it, if they are asked to. Q. Well, have you asked them? A. No, I have not. Q. How many teachers have you talked to? A. I don’t have any record of that, Mr. Ralston. Q. You have indicated that there were some 1800 teach ers: have yo utalked to 100, would you estimate? A. Not on this point, no. Q. Have you made any concerted effort to try to explore with your teachers and with Principals the possibility of who would be willing to go into a school? A. No. Q. Have you explained to them the legal requirements? A. Is it permissible for me to ask you a question? Q. Yes? A. Have you read the Fifth Circuit decision that was appealed from this Court up to the Fifth Circuit on the Muscogee County case? Q. Yes, I have. A. Do you remember what it said about the desegregation of the faculty? Q. Yes, I know what it says and I also know that it is indicated that in the future this would be required? A. Dr. Wm. H. Shaw—for Defendants—Cross 83 Dr. W m. II. Shaw—for Defendants—Cross - 5 8 - Yes, and they told us to desegregate all classes by 1968 and we’re moving a year ahead of that. Q. I want to know, in view of the lannage of that decision as well as the language last December in the Jefferson County case, and in view of other court decisions wdiich have indicated that faculty desegregation was something that was going to have to be dealt with in the very near future, what steps have you taken to try and develop with your teachers and educate them and just find out which teachers of the total 1800 would be willing to do what the law requires them to do? A. Well, we could have sent out a questionnaire but we have not done that. I tried to build up here a while ago in answering in detail the questions of Mr. Hatcher about what he had done about desegregating the faculty and I tried to put in the record just what we have done to build an attitude in our teachers; and I think we could be safe in saying that those who work— (Mr. Rals ton conferring with Mr. King) . . . Q. You have indicated you have tried to develop an at titude with the teachers to do the things you’ve outlined previously, but you’ve made no attempt to find out what is in fact the attitude of the teachers in the system? A. No, we have not put that in our program yet, Mr. Ralston. — 59— Q. So, in fact, you have not really done much of anything of much substance to prepare the way for desegregation of the regular classroom teachers in your system? A. No, the emphasis has been on pupils up to this point, which we tried to do without confusion and chaos in our schools. Q. Do you have any plans now to do any of these things that I ’ve mentioned? A. No, I have none to announce at this time. 84 Q. Have you talked this over with the Board of Educa tion? A. Have I talked it over with the Board? Q. Yes, the members of the Board? A. Yes, I ’ve talked it over with the Board and the Board is in perfect har mony and agreement with what I have done up to this point. Q. Well, do they have any plans to do any of these things that I ’ve mentioned? A. When they have a plan, they will amend it, unless the Court has spoken to them and directed them before they amend their plan again, Mr. Ralston. Q. But as far as you know, they have not done anything or made any preliminary plan to bring about regular class room teacher desegregation in compliance with the law? — 60— A. No, if they had any plan that had been finalized, it would be a part of this court record. Q. And they haven’t made any preliminary plans either? A. Well, I think you could—what do you call all of that integration of the faculty in the areas before you get to the actual classroom situation? That seems to be the only point that’s bothering you. Q. But you’ve indicated that a very large proportion of that, in fact the largest proportion, has been in summer pro grams where you have to do it as a condition of receiving Federal money? A. We didn’t have to have the programs, Mr. Ralston. Q. But you had to desegregate the faculty in order to get the funds? A. Well, it was expected and we didn’t try to get around and not do it. Q. Now, I would just like to come back for a moment to the question of the assignment of pupils under your plan with respect to this last term: you indicated—let me ask you ths, first: Did you deny any choices of persons who Dr. Wm. II. Shaw—for Defendants—Cross 85 wished to transfer from Negro to white schools on the ground that the white schools were overcrowded? A. Yes, a few cases. Q. I have marked here Plaintiff’s Exhibits 3, 4 and 5, —61— which are forms of Muscogee County School District, which relate to the application for transfers of Robert Louis Allen, a student, which was filled out by his parents, two of them, and returned by the School System under the signature of Mr. Shaw. Plaintiff’s Exhibit No. 3, under date of April 26,1967, that indicates that the application to Eastway Ele mentary School was denied because of overcrowding, is that correct? A. Yes. Q. And this for May 2, the same child, an application to Edgewood Elementary School was denied for overcrowd ing? A. That is correct and I know this case very well. Q. And then on May 10, application to Tillingshurst Elementary School was approved? A. Yes, and there was a telephone conversation from the father and the mother in between these. Mr. Ralston: I would like to introduce these as Plaintiff’s Exhibits 3, 4 and 5. Mr. Hatcher: No objection. The Court: They are admitted without objection. By Mr. Ralston: Q. Now, both of those schools in which you denied those applications, the first two applications, there were many students who did not make any choice to stay in that school —62— during the choice period; isn’t that correct? A. Well, I would have to go to the school and see whether they have Dr. Wm. II. Shaw—for Defendants—Cross 86 on file the returned form from every one of the children who lived there near that school. Q. But as far as you knew, when you said that the schools were overcrowded, all you had in your office were applications for change; is that correct? A. Well, no, I had the records showing what the enrollment in that school was of those who lived there near that school, and this family lives a considerable distance from all three of these schools. Q. But you didn’t know how many students who had previously been in those schools had or had not made choices to remain in that school? A. Well, I knew they had not made a choice to get out of that school; I knew that. Q. But you didn’t know whether they had returned choice forms at all, did you? A. Well, assuming that they had the forms and had not expressed a desire to get out, then they had made a choice to stay there, Mr. Ralston. Q. But they had not necessarily returned the choice forms ? A. Their forms was not in my office, no. —63— Q. So, the effect of the way the plan was administered, at least in the terms of these two choices, children in the schools, who had not necessarily returned choice forms, were given priority over this child who had exercised a choice and submitted it to your office? A. Well, I do not know that their form is not there in the Principal’s office and there had been no indication that they would leave that school. Q. But you had no indication in the way of an actual choice form that children, that every child in that school had actually exercised the choice or choice form to remain in that school, isn’t that correct? A. I did not have those forms, no. Dr. Wm. 11. Shaw—for Defendants— Cross 87 Q. Now, did you know that the students who were in the school already the distances, the exact distances that each one of those students lived from that school with relation to the distance that this child lived from that school? A. Yes, and I had the map and I know where this one lived on the map and I know that this one lives farther away from Eastway and Edgewood than the children who are attending. And I informed Mr. Allen, when he called the first time, that Eastway—when I wrote him that that one was disapproved, Eastway—he asked about Edgewood and I said “ That is overcrowded now with the children who live within proximity of the school; and he said which other —64— one? And I told him Tillinghurst. And he said “ Oh yes, I know where that is ; it’s on the way that I go to work.” And then, later his wife called and the secretary told her that he had called and she said “Well, she didn’t know that he had talked about Tillinghurst, that they would fill that out and send it in.” They did and it was approved. Q. Now, after the first application was denied— By the Court: Q. Tillinghurst was formerly an all-white school? A. That’s right, that’s right. By Mr. Ralston: Q. After the first application was denied, did Mr. Lewis talk to you about what schools he could transfer this child to? A. Yes, and I told him the nearest one in that area was Tillinghurst, and he said “ Oh yes, I know where that is, it’s on my way to work.” Q. Then, can you explain why two applications were made, both of which were denied because overcrowded, be- Dr. Wm. H. Shaw—for Defendants—Cross fore a third one was made? A. Well, I told you they were overcrowded. Q. Did you tell Mr. Lewis after his first application was denied that Edgewood was overcrowded? A. Yes, he asked me that and I told him it was. — 65— Q. Had he already made an application to Edgewood at that time? A. No, he had not made one at that time. And then, they made the application and his wife called, when we sent that back disapproved, and she said she didn’t realize that he had talked with us or something like that, just one of a lot of calls that come into an office hut I do remember the case distinctly. Q. Now Mr. Shaw, you’ve indicated by this testimony and your testimony earlier that, as a general proposition, stu dents attend schools nearest to their home? A. Yes. Q. How are students initially assigned in the System? Do you have zones set up? A. Attendance areas, yes. It’s a record in this Court of our original plan for desegrega tion. Q. Well, when a student first wishes to attend, how does he find out which school he should apply to? A. Well, it depends on what contact they make and in trying to find out and let somebody know they are in the community. We can’t have somebody sitting around watching to know when somebody moves in. But children and their parents usually find out from the next door neighbor where the children go to school. If they go to a school that is the wrong school or not the nearest school to them, the Principal would in- — 66— form them. They could call our office and say we live at such and such a place, what is our nearest school, and we would tell them. Dr. Wm. H. Shaw—for Defendants—Cross 89 Q. And you have bus transportation in the County? A. Yes, we do. Q. Is this available to all students? A. Once a child is integrated to the school, he rides the bus just like any body else. Q. How about children who are not going to an inte grated school, are busses set up to transport them to Negro schools? A. The State Department of Education approves through surveys transportation routes to all schools in a county school system like ours. Q. And you have busses operating in the City as well as those in the County, do you not? A . We have busses that take children in the elementary schools who live more that a mile from the nearest school to them; and we have busses operating for junior and senior high school pupils who live more than a mile and a half, which is state regula tion. Q. Isn’t it true that Negro children are being bussed under the bussing system now existing past white schools to Negro schools? A. Yes, that is true and we also have some —67— who made choice to go to Columbus High School who walk right past or ride past, when they walk or furnish their transportation, past some other white high schools. Q. And it is also true that white students are bussed past Negro schools to go to white schools, is that correct? A. Will you name one you have in mind? I would have to check up and see. I’m not sure that such is the case. Q. Well, this is a possibility though? A. Oh, it might be a possibility, yes. Q. And you do have white students transported distances to all white schools? A. Yes. Dr. Wm. H. Shaw—for Defendants—Cross 90 Q. Now, have yon done any studies of bus transportation routes, with a view of changing them or altering them in order to encourage students to attend schools on desegre gated basis ? A. Mr. Ralston, once a year at the beginning of school, the transporation routes are studied and any changes are made that would be in keeping with the stan dards for transporting children by the State and by the County. Q. You have overlapping bus routes; that is, a bus that will pick up a Negro child and take it to a Negro school and another bus that will come by the same area— A. Yes, — 68— there is a little of that, particularly away out in the eastern arm of the County; and I suppose there will be some of that until we completely phase out all of the integration or desegregation. Q. But you do have that? A. Oh, there’s some of that still but not as much as there was. Q. Now, can you state, going back to bussing white chil dren past Negro schools to white schools that this in fact does occur? A. State that again, now? It looks like you’re trying to— Q. As a matter of fact, in some instances white children are put in busses and taken past Negro school which are closer to their homes and bussed to white schools, is that correct? A. Well, I think you must have gotten some in formation from a person seated in the audience there and you might let them tell you which school they have in mind. Q. Well, to cite a specific example, is this in fact— A. Well, I told you a moment ago that I was not aware of the fact that any white children are bussed past a Negro school to go to a white one; if that’s the school of their choice, they would have the right to. Dr. Win. H. Shaw—for Defendants—Cross 91 Dr. Wm. H. Slum— for Defendants—Cross —69— Q. You’re not aware of it but you’re not denying it? A. We have a Director of Transportation, who might know specifically the answer to what you’re saying. I still say that the person who furnished you the information for that question may have an example that he would like to have the Court permit him to say what it is. Q. Now, you have indicated that the schools, white and Negro schools are equal insofar as they come up to accredi tation standards; is that correct? A. Yes. Now, maybe you would like to know, there was a committee of 92 people, educators, invited in here and a team of 3 visited every school for two days or maybe 2-1 /2 days and they had all the standards that they applied to all of these schools; and then they had to say whether to recommend that the school be accredited and whether or not it was meeting the stan dards. W7e didn’t have the say-so on that. Q. I call your attention to the Dawson Drive School, are you familiar with that school? A. Yes, I recommended the purchase of that acreage and the new school there. Q. Is it a new school? A. It is a new school, yes. Q. Well, has there been in the past school carried on in a church in the neighborhood ? A. Not a church on Dawson - 7 0 - Drive. There is a wooden building that was left there that was the school when the County and the City were merged in 1950. Q. Is that old building still being used? A. It could be used for overflow classes, yes. Q. And isn’t it true that that old building does not have any in-door sanitary facilities? A. Beg your pardon? Q. Isn’t it true that that old building does not have any in-door sanitary facilities? A. There was no toilet in that when it was a school, n o ; it 'was a 3-teacher shcool when we merged the City and the County and it was not a church, Mr. Balston. Q. But it is still being used? A. The building is still there. By the Court: Q. Is it being used as a class-room? A. I think there’s one class in there or was one in there last year. By Mr. Ralston: Q. And there will be no classes this coming year? A. 'Well, I ’m not sure about next year now, whether there will be or not. And let me tell you why I ’m not sure: We have just put on about a half a million dollar addition at Carver High School, where the children from there have been — 7 1 - choosing to go for 7th and 8th grades; and, if there is room there, they may prefer to go there than to stay near home. Q. Mr. Shaw, you indicated that extracurricular activi ties were integrated in the schools? A. Yes, they are. Q. Does that include social activities as well, dances, et cetera? A. Yes, it does. Q. Are there any sponsored clubs on the campus, such as Kiwanis Club and Eotary Club; do they carry on activi ties? A. There are junior clubs, yes. Q. Are these operated on school premises? A. Yes, they are. Q. Are these integrated? Are all students admitted to membership in them? A. Now, the membership in those clubs, I would not know. If they wanted to get in, it would be up to the student for them to get in just like any other. Dr. Wm. H. Shaw—for Defendants—Cross 93 Q. Well, don’t you know, as a matter of fact, in this community, these clubs, junior clubs, Kiwanis, and Rotary, are segregated discriminatory according to race and Negro students are not allowed membership in them? A. Well, —72— I have not seen a Negro in one at any time that I saw the clubs in action. Q. Do these clubs use school facilities? A. They meet in the building, yes. Q. They meet in the building? A. Yes. Q. Now, is there any effort made by the school to deter mine the membership policy of these clubs? A. I do not control that and I am not aware of just how they get their members, Mr. Ralston. Q, But you do allow them to use the school facilities? A. Yes; yes, we do. Q. You know, as a matter of fact, that the Kiwanis and Rotary Clubs, the parent clubs are discriminatory on the basis of race and there are no Negro members in those clubs? A. Well, I am a Rotarian and I can say there is not a Negro in the Columbus Rotary Club. The Court: That wasn’t the question? That was not the question, as I understood. The Witness: What was your question? The Court: Read the question, Mr. Joiner. The Reporter: “You know, as a matter of fact, that the Kiwanis and Rotary Clubs, the parent clubs, - 7 3 - - are discriminatory on the basis of race and there are no Negro members in those clubs?” The Witness: And my answer was that I am a member of the Columbus Rotary Club and I know Dr. Wm. E. Shaw—for Defendants—Cross 94 there is not a Negro in that Club, but I don’t know the other part of the inference. By Mr. Ralston: Q. Now, have you felt any obligation in your role as Superintendent of the Schools and as administrator of the school system to make sure that all are allowed use of the school facilities and that they not be discriminatory on ground of race or color? A. Frankly, I ’ve been so busy try ing to get the process of integration of the students carried out successfully, that I have had not had time to work on details of who gets in a certain club. Q. But you did testify before that everything— A. Well, I said activities and I gave you specific examples of what I had in mind, the band and the athletics, I know that they are integrated and there has been no criticism so far as I know. Apparently somebody is dissatisfied or they would not have fed you some of this information that you seem to possess. Mr. Ralston: I think that’s all. I would like to just put in the record Plaintiff’s Exhibits 1 and 2. —74— Mr. Hatcher: That’s all right. Redirect Examination by Mr. Hatcher: Q. Dr. Shaw, the Lewis family or the Lewis parents were satisfied with the handling of their choice forms? A. Well, apparently they were because, as I told you, I did talk with the father in the case, and then the mother called and talked with Miss Heberlin, my secretary, and we assumed that they were—that it had been handled satisfactorily. Dr. Wm. H. Shaw—for Defendants—Redirect 95 Q. There was no— A. There is no written appeal in my office from the Tillinghurst assignment. Q. And there has been no other communication between you and them? A. No, there has not been until this moment and I assume, if it’s Mr. Lewis, I assume that he’s the fel low that I met in the hall out there a moment ago. Q. With reference to the Kindergarten, you operate a kindergarten in all of the schools, do you not? A. All ex cept Double Churches and there have not been enough chil dren at Double Churches last year for a kindergarten. But the children from Double Churches went to Nankapoo. —75— Q. The 831 that you speak of does not include people who enter the kindergarten next year, does it? A. Yes, it does. Q. All of those that were not new pupils, have they ap plied? A. The Principals were instructed to canvass, with the aid of the PTA, all of the pre-kindergarten children, those who would be five years old before the 1st day of December; and to give them an opportunity to choose their school; and we have quite a number of kindergarten chil dren who chose a school for the first time the one nearest their home. Q. Is that true also regarding the first grade, those that didn’t attend kindergarten? A. Oh yes. We have a few who will get by who do not go to kindergarten and they m il be choosing their school for the first time at the first grade level; and some of those making their first choice to school chose to go to a white school nearer them; and a very good example would be three schools: McElheney, Rose Hill and Beallwood, where they live much nearer to those three schools than they do to the closest Negro school; and every one of those were granted. Q. That’s all. Dr. Wm. II. Shaw—for Defendants—Redirect 96 The Court: Allright, you may go down, Dr. Shaw. Mr. John R. Kinnett—for Defendants—Direct — 76— M r. J oh n R. K in n e t t , called as witness in behalf of De fendants, duly sworn, testified on Direct Examination by Mr. Hatcher: Q. Mr. Kinnett, will you please state your full name, your age, your residence and your business ? A. My name is John Robinson Kinnett; I ’m 69 years old; I live at 1408 Wildwood Avenue; and I ’m Chairman of the Board of Kinnett Dairies, Inc. Q. With reference to the Muscogee County Schools, what connection have you had with these schools? A. Well, I am currently serving as President of the Board of Education and have for the last several years. Prior to that I was a member of the Board for some 20-odd years. Q. Mr. Kinnett, you are familiar, of course, with this Lockett case and the case tried here in this Court and the appeal in the appellate court to the Fifth Circuit? A. I am, sir. Q. I ask you, as a member of the Board of Education and as its President, whether the Muscogee County School Dis trict has undertaken in good faith to desegregate the schools of this County, in accordance with the plan aproved by the Court in the Lockett case? A. We certainly have, sir. Q. I ask you if you know of any objections made by anv- — 77- body to the operation and the carrying out of that plan? A. I have heard of no opposition whatsoever. 97 Cross Examination by Mr. Ralston: Q. I didn’t get your name, sir? A. Kinnett, K-i-n-n-e-t-t (spelling). Q. Mr. Kinnett, as President of the Board of Education, have you and other members of the Board informally or formally in meeting discussed the question of faculty deseg regation? A. Oh naturally, we discussed it. Q. And have you discussed making plans? A. We have not discussed making any plans yet because the Fifth Cir cuit Court indicated to us, when our case was before them, which was the Lockett case, that the faculty would come later. In fact, as I recall, hearing one of the Judges make the statement that they weren’t interested in faculty at this time. I believe that’s possibly the exact words. Q. That was the opinion of the Fifth Circuit that you were referring to, was it not? A. I didn’t understand the question. Q. The opinion of the Fifth Circuit that you were refer ring to was decided in 1965, is that correct? A. Possibly so, yes. —78— Q. And they did indicate in that opinion that faculty de segregation would come in the future, that that was some thing for the future? A. I don’t recall it just exactly that way. I think it was more of a negative—I think the question of faculty was brought up and they indicated we are not interested in that now, we are interested in inte grating the students. Q. But you regarded the Fifth Circuit opinion as allow ing you not to discuss or make future plans for faculty de segregation? A. Well, we didn’t feel that until such time as we completed the integration of the children, the pupils, that we had an obligation to go into that. Mr. John R. Kinnett—for Defendants— Cross 98 Q. Were yon aware of the decision of the Fifth Circuit last December in the Jefferson County cases: Were these brought to your attention? A. Frankly, I have not read that case there. I am aware of it. Q. Were you aware of the motion filed by Plaintiffs in this case in January and February of this year, which asked for faculty desegregation? A. Yes, I was aware of that. Q. In view of those motions and in view of Jefferson County opinion, did you or the members of the Board generally feel that vou should make any plans for faculty —7 9 - desegregation? A. No, very frankly, we or I felt person ally that the time had not arrived when we were obligated to do it. Q. What, sir, specifically is your personal attitude toward integration of the faculties in the School System? A. I think when the time comes and we can do it and maintain the quality of education, I think that will be the time. Q. Well, how far in the future do you see this time com ing? A. Well, I ’m not an educator but I would say not any sooner than we can do it and still maintain quality edu cation for all children. Q. All right, I have no further questions. Mr. T. Hiram Stanley—for Defendants—Direct Mb. T. H ikam S tanley , called as witness in behalf of Defendants, being first duly sworn, testified on Direct Examination by Mr. Hatcher: Q. Mr. Stanley, would you please state your full name, your age, your residence and your present occupation or previous occupation? A. My name is T. Hiram Stanley. I live at 2501 Lookout Drive, Columbus, Georgia. I am 71 99 Mr. T. Hiram Stanley—for Defendants—Direct - 8 0 - years of age; and my employment is kind-of varied. Most of it is free service but I retired as Chairman of the Board of Royal Crown Cola Company in the year 1960. Q. What connection have you had with the education in the State of Georgia and also education in Muscogee County ? A. I ’m a member of the Muscogee County School Board for 10 years and I ’m a member of the Board of Regents of the University System of Georgia for the last four years. Q. In reference to the desegregation of the Muscogee County schools, have you any particular function among the members of the School Board? A. I ’m Chairman of the Committee. Q. I ask you, has your Committee and the School Board have undertaken in good faith to desegregate the School System with all reasonable speed in accordance with the mandate of the Constitution of the United States and the Fifth Circuit Court of Appeals opinion in this case and in the opinion of this Court in this case? A. We started without any direction from any court. We did it because we thought it was the thing to do and we proceeded to develop a plan, which was subsequently brought to this Court and to the Fifth Circuit. And periodically, our Com mittee has met to discuss progress, to see what the present - S i - situations were and looking to the future to make adjust ments and amendments such as would keep us ahead of what we were required to d o ; and I think we have done a swell job of keeping ahead. We have never trailed, we have always kept ahead and we have kept in mind quality edu cation for all of our people. We have never dealt with any segment of the population. We have dealt with the entire 100 population, and that has been our purpose and we are doing that now. Mr. Hatcher: All right, he’s with you. Cross Examination by Mr. King: Q. Mr. Stanley, I believe your last name is: Is that S t a n l e y (spelling), sir? A. Yes. Q. Mr. Stanley, I believe that your response to the ques tion regarding you as a Board member abiding by the dic tates of the Constitution of the United States, in pursuit of your responsibility as a member of the Board in deseg regating the schools, you indicated in the affirmative, did you not ? A. I did. Q. That you’ve done everything that was required by the Fifth Circuit and the Constitution? A. We did more than we were required, I think. I think we kept ahead of the —8 2 - plan. Q. As a Board member, sir, you are aware that the Supreme Court of the United States did rule that the segre gation of education was in violation of the 14th Amend ment to the Constitution of the United States? A. Yes, sir. Q. You are aware that that was an edict or a judgment of that Court as early as 1954? A. Yes, sir, and also their discussion and implementation of it. Q. I see. And is it not also your testimony that some 9 or nearly 10 years later that this Board took its first ac tion toward doing anything pursuant to that edict? A. That’s correct. Q. Now, you answered in the affirmative, did you not, sir, that you had actually abided by the judgment of the Mr. T. Hiram Stanley—for Defendants—Cross 1 0 1 United States Court of Appeals for the Fifth Circuit with reference to this particular case, more specifically the Lock ett case? A. We did and we have done it, Q. I ask you, sir, then is it your explanation as to your failure to do anything about teacher integration, the fact that the Fifth Circuit did not speak specifically to this ques tion? A. I think that’s one of the reasons but the main - 83- reason was that we, seeking to give every child the best education possible outlined the steps that we thought that our School Board should take in providing for that, and then we acted accordingly. Q. I see. Now, you were present at all times when Mr. Shaw was testifying this morning, were you not? A. Yes. Q. You heard his testimony to the ffect that there was a sameness throughout the system in the pupil-teacher ratio, did you not? A. Yes sir. Q. YYu heard him testify as to the sameness of quality of the facilities of the school system, did you not? A. Yes sir. Q. You heard him testify as to a sameness of the quali fications of the teachers in the System, did you not? A. Yes sir. Q. Now, consonant with those pronouncements on his part, do you have an actual variance with those? A. No sir, I have no variance; I think he stated facts. Q. Well, in light of that, is there any suggestion to you, sir, that violence would be done to the quality of education if there were teacher integration in this community? A. At the present time, yes. — 84— Q. And would you explain how, sir? A. Because edu cation in the transition that we’re going through requires acceptance by pupils, acceptance by parents, acceptance by Mr. T. Hiram Stanley—for Defendants—Cross 1 0 2 the community and by acceptance of all of those, we as a school board are in a better position to keep the initiative and handle it than anybody else. Q. Now, what have you done, in concrete terms, to estab lish and otherwise react to what is the current thinking regarding community, regarding students, in order to make that judgment that you have just testified to? A. The pro cedure and timing that we have followed have met the complete positive response in all of our people as of this hour. Q. Then, you haven’t taken any survey to determine whether you can go faster then, have you? Than what you’re suggesting you have already accomplished? A. No, we think we are moving faster and we’ll move faster than we would under a court order, because we have always maintained the initiative in that and we think that we can do it; we have always acted in good faith and we’re going to do that, keeping in mind the best education and well being of every body and girl in this community. Q. Well, would you tell me, sir, the specifics of how vio lence, in light of your prior testimony, would be done to — 85— tlie quality of education? A. I think education is a demo cratic process. Q. Well, whatever do you mean by that, sir? A. I mean that the people should go to the school that they think they should go to and they’re happy in going. I think, if you put coercion on any child, you have instilled in that child a wrong concept of a good free democratic education. Q. Doesn’t that also, doesn’t the distinction— A. And we’re moving in that direction; and we have not stumbled one step in entertaining that up to now; and if we—let us Mr. T. Hiram Stanley—for Defendants—Cross 103 follow the schedule now—we recognize that there are more schedules and we’re discussing them periodically; and we’ll make those changes in the best interest of all of the boys and girls as a whole and in this community as a whole. Q. Well, doesn’t that also, doesn’t your explanation of what you feel or your description of what is democratic also define what is anarchist; that is, you have said that you believe in letting the child do what he wants to do and go where he wants to go? A. I think that’s democratic, to let him express his choice and his parent’s choice and we have done that. Q. I see. Well, you are familiar with this community, - 86- are you not, sir? A. Yes sir. Q. You are familiar with the fact that it has a tradition of long protracted racial discrimination; isn’t that true? A. No, I wouldn’t say that. I think this community is just the reverse of it. Q. I see. Are you denying that segregation has been a reality in this community for more than 100 years? A. No, I ’m not denying that, but your question before was the spirit of the community, and I say the spirit of this com munity is not on that basis. Q. Are you denying, sir, that segregation in education has been a reality in this community for a period exceeding 100 years? A. No, I ’m not denying that, but the question you asked me was the spirit of this community today. Q. Then, I ask you, sir, in light of the reality that you acknowledge to exist, using the concepts that you do as you describe them as being democratic, you would never get an integrated, a totally integrated an unitary school system in this County, would you? A. I think you’re specu lating there because we don’t know, but look at the progress Mr. T. Hiram Stanley—for Defendants—Cross 104 we have made since we started; and I think the progress itself is indicative of what’s being done. —87— Q. Well, would you answer this question for me, sir: What is your personal persuasion toward the desegregation or the integration of the school system in this community? A. I have been Chairman of the Committee that has helped work it out and I think that bespeaks my attitude. Q. Well, do you believe in the integration of the races in education in this community? A. I ’ve supported it. Q. Well, that doesn’t answer my question: do you be lieve in it? A. I think it’s all right and I think my colored people here and my friends believe that that’s my attitude and will support me in it. Q. Have you any reluctance to give an affirmative or negative response demonstrative of something less than an affirmative belief in it? A. I have expressed it. I wouldn’t have supported it if I didn’t believe in it. Q. Well, are you saying that you do believe in integra tion? A. I think my actions speak louder than anything I could say because I have brought it—we’ve brought it to the Board and the Board has approved what we recom mended. Q. Will you explain your reluctance then to answer af firmatively or negatively, sir? A. I think I ’ve already —88— answered it. Q. What is your specific attitude toward racial integra tion of faculty? A. I am not against it at the proper time. Q. And when is that, sir? A. It’s the next step. Q. And when is the next step, as you envision it? A. I would say that we will begin thinking about that very Mr. T. Hiram Stanley—for Defendants—Cross 105 seriously—we fininsh the pupil integration this year and I think that will be one of the next steps for consideration probably in 1968. Q. I see. And how long do you envision you will have to think about it, after you commence thinking about it in 1968! A. I ’m one member of the committee, I think when we being to think about it, we’ll come up with some plan. Q. In the how distant future, sir! A. In ’68, next year. Q. N e x t year you think you will! A. Yes. Q. You will start thinking about that at that time and you’ll come up with something! A. Sure, I think we will. Q. No further questions. Mr. Hatcher: All right, come down, sir. That’s all we have, sir. Mr. Robert A. Lewis—for Plaintiffs—Direct —89— M r . R obebt A. L ew is , witness called b y Plaintiffs, duly sworn, testified on Direct Examination by Mr. Ralston: Q. Mr. Lewis, would you please give your full name and address and occupation for the record! A. Robert A. Lewis, 3140 Urban Avenue, Letter carrier, United States Post Office. Q. You are a resident of Columbus, Georgia! A. Colum bus, Georgia. I am a resident of Columbus, Georgia. Q. Do you have school children attending school here! A. I do. Q. How many! A. Three. Q. What are their names and ages and grades they at tend! A. I have Gwendolyn Elaine, 14, promoted to the third year high school; I have Anthony Jules, 12 years old, 106 promoted to the 9th grade in high school; and I have Robert A., 10 years old, promoted to the 6th grade in elementary school. Q. Referring to your youngest son, Robert Allen Lewis, did you during this year fill in a request that he be trans ferred from the school he had been attending1? A. I did. —90— Q. And what school did he request or did you request that he be transferred to? A. Initially, I requested East way. Q. And what was the response received from the School Board? A. It was disapproved because it was over crowded. Q. I show you Plaintiff’s Exhibit # 3 and is this the communication you received from them? A. This is it, along with a disapproval blank, Muscogee County form. Q. After you received this, did you phone any one at the Board of Education? A. I phoned the Superintendent of Education of Muscogee County, Mr. Shaw, and I spoke to him. Q. And what did you tell him when you spoke to him? A. I asked Mr. Shaw, since he had indicated that Eastway was overcrowded, I asked him for information as to schools that were not overcrowded. Q. And what was his response? A. It was neither posi tive nor negative. I could not get anything but I was in formed to submit a second choice and at which time it would be acted upon. Q. Was any suggestion made to you as to a school that was not overcrowded? A. There was some questions. I -—91— asked some questions but there was no voluntary informa tion given me from the office of Mr. Shaw. Mr. Robert A. Lewis—for Plaintiffs—Direct 107 Q. Did you ask Mm about Edgewood Elementary School? A. Pardon? Q. Did you ask him about Edgewood Elementary? A. I asked about Edgewood. Q. What did he tell you about Edgewood? A. He said it was overcrowded too. Q. Did you subsequently make application to Edgewood? A. I subsequently made application to Edgewood and the communication was returned, overcrowded. Q. But at this first conversation with Mr. Shaw, he did not give you the name of a school that was not over crowded? A. No, he didn’t. Q. Did you ask him for it? A. I did. Q. In this first conversation when you mentioned Edge- wood, did Mr. Shaw tell you it was overcrowded? Did Mr. Shaw tell you that Edgewood was overcrowded? A. He said it was overcrowded and he said the reason Eastway was overcrowded was because he was having to bus some other pupils from Eastway to some other school; but I was — 92— never given any information as to what school wasn’t. Dur ing this particular communication I was not given any indication of what schools were not overcrowded. Q. So, then you made application to Eastwood, I mean, excuse me, Edgewood; and I show you Plaintiff’s Exhibit 4: could you identify that? A. Yes, this was returned to me from the School Board, along with another form which I do not have, but it indicated—it was a blank form similar to this one which had third choice on it and a basic letter, said “ Please submit your third and final choice and get a school that is not overcrowded.” Q. Now, when you received ths communication, did you phone Mr. Shaw again? A. No, I did not; my wife did. Mr. Robert A. Lewis—for Plaintiffs—Direct 108 Q. And, as a result of that conversation, did you make any application to another school! A. I did. Q. I show you Plaintiff’s Exhibit 5, and could you identify that, please! A. Yes, this is the third and final applica tion, as indicated, by Muscogee County School Board to Tillinghurst School, and it is approved. Q. Now, with regard to the relative distances of these three schools, which was the nearest to your home! A. — 93— Eastway. Q. That was the first one you chose! A. Yes. Q. And how about Edgewood! A. Edgewood is second closest but it was slightly greater than Eastway. Q. And Tillinghurst! A. Tillinghurst was some twice the distance as it would be to Edgewood. Q. Mr. Lewis, I would just like for the written record for you to identify your race, please! A. I am an Ameri can Negro. Q. Thank you; that’s all. Cross Examination by Mr. Land-. Q. Where did you say you resided! Would you give us your address! A. 3140 Urban Avenue. Q. And you are employed where! A. United States Post Office in Columbus, Georgia. Q. Now, the Tillinghurst School, was that mentioned to you by anybody at the Muscogee County School District office! A. Not voluntarily. Q. What do you mean by “not voluntarily” ! A. It was — 94— offered only to my wife upon her asking. Q. It was communicated to you as a school which was not overcrowded by your wife, who received the informa Mr. Robert A. Lewis—for Plaintiffs—Cross 109 tion from the Muscogee County School District; is that your testimony? A. Well, to relate her terms, she said that upon her asking, some female in the County office, the School Board office, said Tillinghurst, “Well, Tillinghurst would be a white school that is not overcrowded. Q. And that was the information that you desired, to have the name of a white school which was not overcrowded? A. I was trying to find a County school that was nearby my house. I didn’t care whether it was white or crowded. I was not satisfied with the school that was supposedly in my attendance area because the quality of education did not suffice me, and I was not trying to find a white school or a Negro school, which I don’t believe there’s such a thing; and I wanted to find a school. Q. And so far as you know, that information was sup plied your wife by the Muscogee County School District office at her inquiry? A. That is correct. Q. And do you know whether or not there was a dis cussion between your wife and the representative of the Muscogee County School District about the convenience of —95— Tillinghurst because that was a school by which you passed on your way to work? A. No, I am not aware of that. Q. Beg your pardon? A. I am not aware of that con versation. Q. She didn’t tell you anything about that? A. No. Q. But she did tell you that she had found out about the school from the Muscogee County School District? A. Yes. Q. And, as a result, you made application for your child to enter that school? A. That is correct. Q. And that application was passed upon and approved by the Board? A. That is correct. Q. Now, where do you work? You said with the post office? But I wanted it specifically? A. I work at the Mr. Robert A. Lewis—for Plaintiffs—Cross 110 Lynwood Street facility, which is on Macon—at Midtown Mall, right off of Macon Road. Q. And you have worked out there for some time! A. At its opening; ever since it’s been opened, some year or so, about a year. Q. About a year ago! A. Yes, approximately. —96— Q. And the Tillinghurst School would be on your way to work from your home! A. It’s not on direct route but because I get off slightly before the kid get out of school, I could detour by there and get my child. Q. You would have to do very little detouring to go by Tillinghurst School, wouldn’t you, to get to your residence! A. Well, it all depends on how you look at it. It’s some two miles from the post office. Q. Two miles from the post office! A. Approximately to Tillinghurst school. Q. And how far is it from the post office to your home! A. Oh, approximately 3% or 4 miles. Q. And two miles of that would be between the post office and the School! A. No, it would not be between the post office and the school. It would be completely off of the most direct route from the post office to my home, distance of say about a mile or maybe a mile and 8/10 either way, go ing completely off my route of return, and distance of some three miles off of round-trip off of a straight line from my house. Q. And you don’t know then whether there was any dis- —97— cussion between your wife and the School District repre sentative as to the convenience of Tillinghurst, because you could go by there on your way to and from work! A. No. The only thing I know about the conversation is that my Mr. Robert A. Lewis—for Plaintiffs—Cross I l l Mr. Robert A. Lewis—for Plaintiffs—Redirect wife has made arrangements with a teacher at Carver High and she will take my child to school because of the proximity of Carver High to Tillinghnrst School; and she will take my child to school, because it’s very clear since my school or my child is not in attendance at school, is not attending a school in the attendance area, then the burden of trans portation rests upon me. Q. Where did your child attend school last year! A. Forest Eoad Elementary. Q. I think that’s all. Dr. Shaw: Urban Avenue runs north off of Forest Eoad about a mile from Forest Eoad School. By Mr. Land: Q. How far is your home from the Forest Eoad School? A. Some 6/10 of a mile. Q. How far is your home from the Eastway School? A. Some 2% miles. Q. How far is your home from Edgewood School? A. Some 2% miles. Q. And you said your home was how far from Tilling- hurst? A. Some 4 miles. —98— Q. 4 miles approximately? A. Approximately. Q. That’s all. Redirect Examination by Mr. Ralston: Q. Mr. Lewis, I just have one question: When you called, after the first denial of the application, you were not told where a school was that was not overcrowded? A. I was told by a lady who became very, or rather I would gather from her tone of voice, that she was very irritated; and 1 1 2 she told me to go on and submit my application and they would act upon it upon receipt in the office. Q. And you were not told where a school was that was not overcrowded? A. Pardon? Q. I say, you were not told, you were not given the name of a school that was not overcrowded? A. Ho, X wasn’t. Recross Examination by Mr. Land: Q. Now, did I understand you to say that you did not talk to Dr. Shaw? A. I spoke to Dr. Shaw. I spoke to Dr. Shaw. Q. And Dr. Shaw told you Tillinghurst? Didn’t he? A. - 9 9 - Pardon? Q. Dr. Shaw told you Tillinghurst was not overcrowded? A. No, he did not tell me that Tillinghurst was not over crowded. He may have told my wife. Dr. Shaw: I told him. Mr. Land: All right, that’s all. The Court: All right, you may go down. Mr. Ralston: Plaintiff’s rest, Your Honor. Mr. Hatcher: We would like to put Dr. Shaw back on the stand. Mr. Robert A. Lewis—for Plaintiffs—Recross 113 Dr. W m . H. Sh a w recalled by Defendants in rebuttal, testified on Redirect Examination by Mr. Hatcher: Q. Dr. Shaw, you have heard the witness who has just testified: Did he talk to you about his application for his child or child to attend— A. Yes, when the first one was returned marked “disapproved” on Eastway, he called me and identified himself; and he wanted to know, when I told him that Eastway was overcrowded, he wanted to know about Edgewood and I told him that was too ; and he said “Is there a white school”—now, he said a moment ago it didn’t make any difference—he said “Is there a white school - 100- in our side of the School District that is not overcrowded?” I said “ Tillinghurst.” He said “Yes, I know about that school, I pass there”—I understood him to say, “ I pass there on my way to work.” Then, when his wife called later, when we disapproved Edgewood—they sent it in after we told them it was over crowded and we disapproved it— she called, and she asked the same question, “Where was there a school out there not overcrowded?” And I told her “ Tillinghurst” and that I had told her husband about that. I do not recall whether she said he didn’t tell her or not but I distinctly remember talking to both Mr. Lewis and someone who identified her self as his wife. Recross Examination by Mr. King: Q. Sir, in your position as the Superintendent of Schools of the System as large as Muscogee County, how many calls would you say that you answer in the course of a day? A. Dr. Wm. II. Shaw—for Defendants— Recalled—Redirect — Recross—Rebuttal 114 I ’ve never been asked to make a record of it bnt there are a lot of them. Q. I didn’t ask for a record, sir! A. Well, I don’t know how many but there are a lot of them and I usually take care of all of the calls; and if some calls come in when I am not there, they keep a record of it and I make a habit of - 101- answering all of those calls even if I have to get them the next morning. Q. Would you say it averages maybe 30 or 40 calls a day? A. Well, you mean on this subject or just calls? Q. Just calls, sir? A. Well, I never have kept a record; perhaps it would be that many or more; I don’t know. Q. That many or more? A. I know there are a lot of calls. Now, if they can find, if some person on the desk can find out what they want to talk about, if there is some other person in the administrative staff who would be better in formed to answer, the calls are shunted to them, if the per son will divulge what they want to talk about; so, I would not get all of the calls that might originally be intended for me. Q. Well, I didn’t ask you that hut I simply asked you how many calls do you answer a day? A. I don’t have a record of that. Q. I ask you, sir, in the light of your not having an exact record, it is your best recollection that it may be 30 calls a day, is that correct? The Court: What if it does? What if it’s 40, what if it’s 10? What’s that got to do here? The Witness: It could be 100. — 102— The Court: What has that got to do with it? Dr. Wm. H. Shaw—for Defendants—Recalled—Recross Mr. King: I would submit it has everything Your Honor. Credibility is certainly very obvious reason why he was put back up. The Court: Mr. King, if you’re trying to make the point that he gets a lot of telephone calls and, there fore, there’s some question about whether he can remember telephone calls; is that the point you’re trying to make? Mr. King: Well, whatever it is. The Court: Is that it, is that the point you’re try ing to make about it? Mr. King: Well, it certainly goes to credibility. The Court: Well, I say, is that the point you’re trying to make? All right, he’s testified he get 30 or 40 telephone calls. Now, what’s the use in pursuing it further? He testifies positively that he remembers this conversation also. All right, anything further about it? Mr. Kings: Yes sir, there is. The Court: About the telephone conversation? Mr. King: Sir? The Court: About the telephone conversation. He was put back on the stand— —103— Mr. King: Yes sir, that’s what I ’m asking him, about the telephone conversation. Q. Now, I believe that it is your testimony that in this particular conversation that you had, you say that when Mr. Lewis called, he asked about first one school; is that correct? A . He identified himself as the person who had requested Eastway and it was disapproved; and then he wanted to know about making another choice. I said, “ Yes, Dr. Wm. / / . Shaw—for Defendants— Recalled—Recross 116 yon have a right to make another choice.” He asked if he could have Edgewood, and I told him “No, Edgewood was overcrowded.” And he said, “Well, give me the name of a school on this side of town, a white school, that is not overcrowded?” And I said, “ Well, according to our records, Tillinghurst is not overcrowded.” He said “ Oh yes, I know about that school” and I think I remember that he said, “ I go by there on my way to work.” But he certainly said he knew about that school. Q. And all of this took place in that conversation? A. Yes, and then when his wife called and she wanted to know about a shcool, I explained to her that before the Edgewood application had been sent in, that I had explained to him there was—let’s wait until they finish their conversation. (Mr. King and Mr. Ralston conferring) . . . The Court: Yes. Now, don’t ask any questions —104— unless you are interested in hearing his answer, Mr. King. Mr. King: I heard his anwser. The Court: Yes, but you and Mr. Ralston were carrying on a private conversation there while he was still answering your question. Now, don’t ask any questions unless you’re going to accord the wit ness the courtesy of listening to his answer, if it’s a question— Mr. King: I state to the Court— The Court: —if it’s a question that’s important enough to be asked, it’s a question the answer to which is important enough to be heard. Mr. King: I will state to the Court in my place Dr. Wm. II. Shaw—for Defendants— Recalled—Recross 117 The Court: You and Mr. Ralston were carrying on a conversation and any statement you make to the contrary is contrary to my observation of the facts; and, if you want to ask the witness a question and listen to his anwser, you may do so. Now, if there is any further question to be asked of the witness, ask it. Is there any further qeustion? . . . I presume there is not. All right, Mr. Shaw, you may go down. Anything further? — 105— Mr. Hatcher: That’s all for us. The Court: Anything further?. . . All the evidence is in? . . . All right. Mr. King: No, Your Honor; I think that Mr. Ral ston wanted to speak to the record. Mr. Ralston: I just wanted to say in this instance, Your Honor, that I did not say anything and Mr. King did not say anything to me. The Reporter: I cannot hear counsel. Mr. Ralston: Neither I nor Mr. King said any thing before Mr. Shaw had finished his answer. The Court: I have made the observation that the Court observed, of which I had ample opportunity to observe; and the witness himself had to interrupt his answer because counsel was not paying attention to what was being said. That’s the record in the case. Anything further? Any further evidence? Mr. Ralston: No further evidence from the Plain tiff. The Court: All right, anything you gentlemen want to say? Colloquy I sa id noth ing to M r. R a lston w hile he w as answ er ing. 118 Mr. Ralston: I would just very briefly like to state that the evidence here shows in a number of respects that the plan presently in effect in this County does not conform to Jefferson County stan dards. — 106— As to the choice period it has been shown that there is in fact no mandatory choice that is contemplated by Jefferson County, which contemplates that every student filll a choice form and submit it for process ing ; and that because of the failure of this provision, there is also clearly no—well, there is clear priority to children because of their prior school attendance ; and, therefore, children who are attempting to exer cise a choice into that school are barred and have been barred because of overcrowding, without look ing at the choices or the lack of choices of the entire student body of the school. For this reason we feel that it is essential that a new choice period be set up, a mandatory choice of all of the students, for the coming year in accordance with Jefferson County. And we feel that the contention that the burden is placed on the School Board should not be deter minative because they were on full notice when they set up the choice period of the Jefferson County case; that they had received motions filed in this case for choice period conforming to Jefferson County; and they could have taken these into consideration and they could have come before this Court earlier to find out what their obligations would be under — 107— Jefferson County and set up a choice period to con form to Jefferson County. Colloquy 119 On the qeustion of faculty desegregation, which I think is the other main question raised in this hear ing, I believe it’s clear that the School Board has no plan for regular classroom desegregation of fac ulty for this coming school year; and under Jeffer son County they have a duty to affirmatively assign teachers and other staff members for this coming school year and that, therefore, those provisions of the plan should be in this case and the Defendants ordered to make assignments, and also make reports set out in the Jefferson County decree to this Court and to counsel for the Plaintiffs of the progress of both teacher and pupil and faculty desegregation. Mr. Hatcher: May it please the Court, I vTould like to say that the School Board of Muscogee County School District, I think, under this evidence has done its utmost to give the people of this County a very good educational system. They have worked without compensation, other than that pencil they get once a month, and they have an unusually good system and a plan of integration of this School System which has proceeded with as much speed and without any —1 0 8 - interruption or disruption of the school function, which is education and without any complaint, and with complete satisfaction, it appears, from all per sons in this County. And we think that the Muscogee County School Board can better complete the full desegregation and integration of this School System, including the faculty, better than anybody else and certainly under its plan can do so more quickly, without interruption of any school functions, than undertaking to comply with the straight jacket plan Colloquy 120 set forth as an appendix to the Jefferson County case. I submit we have accomplished the main thing, which is to get along with this job of integration, and we have gotten along with this jo b ; and I submit that the motion that the plan be amended where necessary to meet the standards, I submit that our plan meets the standards in every substantial re spect and that there is no need for any amendment of this plan, and that the motion should be denied. The Court: All right, I ’ll let you gentlemen hear from me as soon as I can get to it. The Court stands in recess until tomorrow morning at 9:30 o’clock. R ecessed : 12:40 P. M., J un e 15, 1967. Colloquy 121 Certificate IN THE UNITED STATES DISTRICT COURT F ob th e M iddle D istbict oe G eorgia C olum bus D ivision Civil Action No. 991 - 1 0 9 - J ebry L . L ockett, et. al., v. Plaintiffs, B oard of E ducation of M uscogee D istrict , et al., Cou nty S chool Defendants. G eorgia B ibb C o u n t y : Foregoing pages numbered consecutively 1 to 108, both inclusive, Certified to be true and correct transcript of proceedings of hearing in U. S. District Court at Columbus, Georgia, June 15, 1967, in the above case. So Certified , this the 28 day of July, 1967. Filed August 21, 1967 Claude Joiner Official Reporter, U. S. Court Middle District of Georgia 1 2 2 (Filed August 16, 1967) [Caption Omitted] Historical Background In 1963 the Board of Education of Muscogee County School District, Georgia, voluntarily adopted a desegre gation plan for the public schools within the system. No litigation prompted this action. The plan as adopted called for desegregation of certain upper grades imme diately with similar action to be taken with respect to other grades until desegregation had been completed, the plan being similar to plans which were being at that time approved by the U. S. Court of Appeals for the Fifth Circuit. In January, 1964 suit was filed by the Plaintiffs ex pressing dissatisfaction with the plan which had been adopted and asking this Court to enter an order com pelling total immediate desegregation and asking that the gradual plan which had been adopted by the Board be disapproved. After hearing this Court denied the prayers for injunction. On appeal the United States Court of Appeals for the Fifth Circuit approved the denial of the injunction, but required a modification in the plan to the extent that the Board was required to begin desegregating classes from “both ends” so that all classes would be desegregated by the year 1968, this being consistent with action taken by the Court of Appeals in some other school cases which recently had been decided by the Court of Appeals while this case was awaiting decision on appeal. Lockett, et at. Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 123 v. Board of Education of Musocgee County School Dis trict, Georgia, et al, 342 F.2d 225. Jurisdiction was re tained in this Court for such other and further proceed ings and orders as might be deemed appropriate in the light of developing circumstances. Since that time the plan as modified has been in effect and has been volun tarily amended from time to time by the Board. Relying upon the decision of the Court of Appeals for the Fifth Circuit in United States v. Jefferson County Board of Education, 372 F.2d 836, Counsel for the Plain tiffs have now filed a motion for further relief asking in substance that this Court enter a blanket order in this case in the terms of Jefferson. A hearing on the Plaintiffs’ motion was had and evidence was submitted. The Defen dant Board assumed the burden of demonstrating that a decree of the nature and in the language of Jefferson was neither necessary nor desirable in the circumstances. Summary of the Evidence A review of the evidence shows that as of June, 1967, enrollment in the Muscogee County schools for the forth coming 1967-1968 school year will be approximately 50,000. Of that number approximately 37,000 are white and ap- primately 13,000 aj-e Negro. The pupils are housed in 64 buildings. The entire school system is accredited by the Southern Association of Colleges and Schools. This means that all of the elementary schools and all of the junior high schools and all of the senior high schools are accredited by the Association. Indeed, there is no school room in the entire Muscogee County system which fails to meet the standards of the accrediting Association. The system has an excellent reputation and standing which is Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 124 probably not exceeded by any other school system in the state. As heretofore noted, the plan for desegregation which was approved by this Court gave the Board until 1968 to complete the desegregation of all classes. The Board did better than this. In January, 1967 the Board voted to completely desegregate all grades at that time and at the beginning of the school year September, 1967 all grades, including kindergartens, will be desegregated under the plan approved by this Court and in September, 1967, ap proximately 1250 Negro pupils will be attending formerly all white schools. Pursuant to its plan, the Board set the period of March 1 through March 31 for the exercise of the free choice of schools to be attended by the pupils. Actually, the period was even extended beyond March 31 and forms were filed through April 3, 1967. In preparation for the choice period copies of the resolution extending this freedom of choice to all grades in the system were published in both of the local newspapers. Front page news stories likewise ap peared in the two newpapers and they carried verbatim the resolution adopted by the Board. All television and radio stations likewise gave the choice period publicity. A meeting of all the principals in the system was held on February 20, 1967 and the procedure for the distribution of the choice forms and their processing was explained. Sufficient forms were supplied to the principals so that each child in every school was given two of the forms with instructions to take the forms home to the child’s parents. This procedure is the regular method used by the School District for communicating with parents and it has been found by the Board to be the surest way of getting in formation to the parents. The Board does not permit the Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 125 distribution of any material other than official business of the schools in this manner in order to preserve the efficiency of this means of communication. It was testified by the school officials that this method of communication provides 99% coverage and through experience has proved to be more effective than any other form of communication, including the mails. 7,753 requests for transfers were re ceived and with the exception of 16 of these requests, they have all been processed without appeal or complaint.1 To provide for another choice period at this time and to notify the parents to exercise another choice for the 1967-1968 school year would in the judgment of the Super intendent not only be expensive but it would cause great confusion among the 7,753 who applied for a change and the remainder who chose to stay in the school presently attended. At this late date confusion would also result because of the organization of the various schools, as signment of teachers, plans for housing and transporta tion and other organization problems based upon the num ber of pupils expected in each class in the various schools. The Superintendent testified that the disorganization brought about by giving another choice period at this time would be “chaotic” . In addition to the normal organiza tional problems encountered by a School Board, the Mus cogee County Board must face those resulting from hav ing between 8,000 and 9,000 pupils who are transients and move in and out of the county during the school year. This results from the movement of troops at nearby Fort Benning. The teaching staff of the Muscogee County School Dis trict is made up of approximately 1,800 teachers. Of these Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 1 Sixteen white parents and pupils are still waiting and hoping that they can get their first choice between two junior high schools. 126 1,300 are white and 500 are Negro. There is no difference in the pay scale or working conditions in the system. The teacher-pupil ratio is 1 to 28 in the elementary schools and 1 to 25 in the junior and senior high schools. This ratio is equalized four or five times a year. The desegregation plan of the Board as heretofore ap proved by this Court and by the Court of Appeals post poned the desegregation of the faculties until after the pupil desegregation had been completed in all grades of the system so that groundwork might be laid in prepara tion therefor. However, here again the Defendant Board has exceeded the requirements of the plan and has antici pated some of the requirements of Jefferson, because the evidence shows that there has already been a degree of desegregation in the faculties. At the time hearing was had on this matter the schools’ summer program was in progress and evidence with regard to the summer program shows that there are 8 white teach ers and 3 Negro teachers working in the Diagnostic Reading Center which is attended by both Negro and white pupils. There are 4 white examiners and I Negro examiner, 4 white bus drivers and 2 Negro bus drivers, and 3 white clerks and 1 Negro clerk, employed in this Center. In this school, which is completely integrated with teachers of each race teaching pupils of the other race, there are 722 white pupils and 480 Negro pupils. In the summer remedial program there are 3 white prin cipals and 2 Negro principals. There are 38 white teachers and 34 Negro teachers teaching 840 white pupils and 600 Negro pupils. At one school there are 4 Negro teachers and 5 white teachers working under the supervision of a Negro principal. At another school there are 5 Negro and 5 white teachers working under the supervision of a Negro princi Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 127 pal. At a formerly all Negro elementary school a white principal and 8 Negro teachers are working together. In the tutoring program 55 teachers are employed and of this number 27 are Negro and 28 are white. There are 333 pupils at 12 school centers, out of which 3 have inte grated faculties and at 4 schools, 2 of which were formerly white and 2 formerly Negro, white teachers are tutoring Negro pupils. At the regular school term which ended last spring a Negro teacher was assigned to the Reading Center to work with both Negro and white pupils. A Negro consultant in English was assigned to work in both the formerly white and formerly Negro schools. In the Adult Education Pro gram there is one part-time Negro teacher for both white and Negro students. At Columbus Area Vocational Techni cal School one full-time Negro works in guidance. In the Trade School there is a white teacher in radio and television who is working in what was formerly the all Negro trade school and another white teacher has been assigned to that school. At the Instructional Material Center there is one Negro who instructs in audio-visual aids. Teacher contracts have been signed and assignments made for the 1967-1968 school year. The teachers have been notified of these assignments and the principals have ar ranged the organization of their respective schools based on the assignments. There are some vacancies which will have to be filled and this situation will continue to exist throughout the year. To shuffle these 1,800 teachers around after they have had their assignments fixed and have signed their contracts would in the opinion of the Superintendent result in a substantial number of vacancies in the teaching staff. Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 128 Obviously, the best way to bring about greater desegrega tion of the general classroom teachers is to find the teachers who are willing to accept these assignments and have the Superintendent place them in a situation where they can succeed. It was the opinion of the Superintendent that this could be accomplished best before the contracts are signed and the assignments made, rather than make involuntary reassignments after they have already been settled on. The Superintendent testified that it had been hoped that further desegregation of the faculties would proceed upon comple tion of desegregation of the regular school classes, just as had been planned. The Chairman of the School Board committee testified that further desegregation of the faculties is the next step to follow desegregation of classrooms, and since desegre gation of the classrooms will have been completed by the opening of the school year next month, further progress will be made on desegregation of faculties in the coming year. The Court’s Ruling on the Motion The Muscogee County Board of Education has moved with greater speed toward the desegregation of its schools than that required by the orders of this Court or of the Fifth Circuit Court of Appeals. It has amended its plan voluntarily a number of times in order to carry out its stated purpose of desegregating schools as soon as reason ably possible consistent with meeting the educational needs of its pupils. Under the plan approved by this Court and by the Fifth Circuit Court of Appeals it was told to com plete the desegregation of its classes in 1968 and that the question of faculty desegregation would then be dealt with. The Board has completed the desegregation of its classes a Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 129 year early and has already made progress toward bringing about the desegregation of its faculties—all of this without being required to do so by a court order. The Board has through the testimony of the chairman of the committee charged with the responsibility therefor stated its intention to adopt a plan for greater faculty de segregation during the forthcoming school year. This Court is of the opinion that the Muscogee County Board of Education has given a full and fair freedom of choice under its plan to all pupils within its system, that this has been accomplished in such a manner as to effec tively carry out the objective, and that the efforts of the administrative personnel in bringing this about are com mendable. It is also the opinion of the Court that to con duct another choice period at this late date and under the circumstances existing would bring about confusion in the functioning of the schools which are already completely organized and ready to begin operations next month. In stead of benefitting the program of desegregation, it is felt that the confusion resulting in the minds of the parents of the children would hinder the accomplishment of the objec tive of desegregation. The choice period in 1968 and the manner and means of conducting it shall be in compliance with the rules prescribed in Jefferson. There remain only a few weeks before the beginning of the 1967-1968 school year. All teacher assignments have been made, contracts signed, and the schools organized on the basis of these assignments. As heretofore noted, there has already been considerable voluntary progress made by the School District in bringing about the desegregation of its faculties. With the intention of the Board expressed by its committee chairman being to extend the desegregation Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 130 of faculties in the coming school year, coupled with the fact that previous representations made to the courts have been more than fulfilled, it is felt that it is not necessary at this time to enter an order requiring specific action in addition to that which has already been accomplished by the Board. Of course, if the action taken by the Board in this regard is not consistent with that required by Jefferson and other cases of the Court of Appeals, it will be necessary for this Court to enter such other orders as are required to bring about such compliance. It is deemed appropriate at this time to recall that when this Court denied the Plaintiffs’ request for injunction in 1964 we commented: “ The members of the School Board and the Superinten dent of Education are highly respected citizens of the community and this Court has complete confidence in their integrity and good faith. . . . There is no need for judicial interference.” And when the Court of Appeals reviewed this Court’s de cision the Court of Appeals said: “ The record discloses a willingness to go forward. We, as was the District Court, are willing to rely on the integrity and good faith of the members of the School Board where they represent, as they have here, an in tention to effectuate the law.” There is no evidence in this case that suggests the neces sity for the entry of any further order at this time. On the contrary, all of the evidence indicates that the Defendant Board intends in good faith “to effectuate the law.” Where a local school board is earnestly striving to comply with Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 131 constitutional requirements in the operation of its schools and is successfully doing so, such a board should not be fettered with needless directions emanating from the courts. Except as hereinbefore set forth, the motion is denied. I t is so ordered this 15th day of August, 1967. J . R obert E lliott United States District Judge Memorandum Opinion and Order on Plaintiffs’ Motion for Further Relief 132 Notice of Appeal to Court of Appeals (Filed September 7, 1967) [Caption Omitted] Notice is hereby given that the above-captioned plaintiffs hereby appeal to the United States Court of Appeals for the Fifth Circuit from the Memorandum Opinion and Order of the Honorable J. Robert Elliott, Judge of United States District Court for the Middle District of Georgia in which the latter denied injunctive relief against the captioned defendants for their failure to comply and otherwise adhere to the requirements of the decision of the U. S. Court of Appeals for the Fifth Circuit in United States v. Jefferson County, Board of Education, 372 F.2d 836, entered in this action on August 16, 1967. C. B. K ing Attorney for the Plaintiff P. 0. Box 1024 Albany, Georgia 133 Designation of Record on Appeal (Filed September 15, 1967) [Caption Omitted] Plaintiffs, in the above case, hereby designate the fol lowing portions of the record in this Court to constitute the Record on Appeal to the United States Circuit Court of Appeals for the Fifth Circuit: 1. The plan to desegregate the schools of Muscogee County School District, Georgia, dated Septem ber 12, 1963, and attached to the defendants’ an swer to plaintiffs’ complaint filed September 5, 1964; 2. Resolution dated December 28, 1964, by the Mus cogee County Board of Education amending its desegregation plan; 3. Resolution dated May 21, 1965 to amend the plan to desegregate the schools of Muscogee County, Georgia; 4. Resolution dated January 31, 1967, to amend the plan to desegregate the schools in Muscogee County, Georgia, included in plaintiffs’ Exhibit 2 introduced at the hearing held June 15, 1967; 5. Plaintiffs’ motion for summary judgment filed in February, 1967; 6. Plaintiffs’ motion for further relief filed in Feb ruary, 1967; 7. Plaintiffs’ motion for an order, etc., filed May, 1967; 134 8. Response of defendants to plaintiffs’ motion for an order, etc., filed June, 1967; 9. Court’s memorandum opinion and order on plain tiffs’ motion for further relief filed August 16, 1967; 10. Transcript of hearing held June 15, 1967, with plaintiffs’ Exhibits 1, 2, 3, 4 and 5; 11. Plaintiffs’ notice of appeal to Court of Appeals; 12. This designation of Record on Appeal. Respectfully submitted, H oward M oore 859% Hunter St., N.W. Atlanta, Georgia C. B. K ing P.O. Box 1024 Albany, Georgia C harles S teph en R alston J ack Greenberg 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs Designation of Record on Appeal 135 Certificate of Service I, Howard Moore, Jr., counsel for the Plaintiffs, do hereby certify that I have served a copy of the attached Designation of Record on Appeal on the attorneys for the defendants, J. Madden Hatcher, Esq., and A. J. Land, Esq. at their proper address, Post Office Box 469, Columbus, Georgia, by depositing a copy of same in the H. S. Mail with sufficient postage, prepaid. This 14th day of September, 1967. H oward M oore, Jr. Attorney for Plaintiffs 136 Clerk’s Certificate IN THE DISTRICT COURT OF THE UNITED STATES M iddle D istrict of Georgia— C olumbus D ivision U nited S tates of A merica , M iddle D istrict of G eorgia. I , J o h n P. Cow art, Clerk of the United States District Court for the Middle District of Georgia do hereby certify that the foregoing and attached 165 pages contain the origi nal papers, pleading, order, and transcript of record filed in this office in this proceeding and being all of the papers specified and designated in the designation of the contents of the record on appeal by Counsel herein, (except the resolutions called for in designation No. 2, and 3, said res olutions not being a part of the record in the Clerk’s office), and a certified copy of the docket entries of file in the Clerk’s office of the said District Court at Columbus, Georgia. I n w itness w hereof , I have hereunto set my hand and the official seal of the said District Court at Macon, Georgia, this 28th day of September 1967. / s / J ohn P. C owart J oh n P. C owart, Clerk U. S. District Court Middle District of Georgia MEILEN PRESS INC. — N. Y. 219