Goss v. Knoxville, TN Board of Education Petitioners' Reply Brief

    I n  the

Court of tljr 1 nitrft States
October Term, 1962

No. 217

J osephine Goss, et al.,
Petitioners,

—-v —

T he  B oard op E ducation op the  City op 
K noxville, T ennessee, et al.,

Respondents.

ON WRIT OP CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITIONERS’ REPLY BRIEF

J ack Greenberg 
Constance B aker Motley 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Carl A. Cowan
2212 Vine Avenue, S.E. 
Knoxville, Tennessee

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

327 Charlotte Avenue 
Nashville 3, Tennessee

Attorneys for Petitioners



I n the

Olmtrt af tin' luttrii BtnUs
October Term, 1962

No. 217

J osephine Goss, et al.,
Petitioners,

—v.—

T he  B oabd of E ducation oe the  City op 
K noxville, T ennessee, et al.,

Respondents.

on writ op certiorari to the  united states
COURT OP APPEALS POR THE SIXTH CIRCUIT

PETITIONERS’ REPLY BRIEF

Respondent City of Knoxville urges that the racial trans­
fer provisions “are under review here only as transition 
measures” (Knoxville Br. 3). Referring to “disorders . . . 
occurring in a community only eighteen miles from Knox­
ville . . . ” it argues that “In Knoxville only in rare instances 
will white parents permit their children to go to predomi­
nantly Negro schools, and the majority of Negro parents 
won’t let their children go to predominantly white schools” 
(Knoxville Br. 4). Knoxville argues also that “there is an 
assumption,” which it calls valid, “that requests for trans­
fer based upon race are supported by actual good cause 
which stems from race” {Id. at 5). But the Board concedes 
it could make transfer following individual evaluations 
under Paragraph 5 of its plan, which covers “all cases, 
including those of handicap due to race” {Id. at 6). While



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Knoxville concedes such individuation is possible in the 
case now before the Court, the city urges that other com­
munities may not be able to manage it; therefore, Knox­
ville also should be able to use race as a gross factor in 
justifying transfers {Id. at 6).

Respondent Davidson County Board of Education prin­
cipally makes the argument1 that “the Fourteenth Amend­
ment did not guarantee the students an integrated school 
to attend; and any segregation was not the result of the 
plan but of individual choices of individual students” 
(Davidson County Br. 11-12). Amicus curiae Chattanooga 
and Memphis School Boards make the same argument 
(Chattanooga Br. 3, et seq.; Memphis Br. 5, et seq.).

T h e  R acial T ra n sfe r  F eatures A re  o f  In d e fin ite  D ura tion .

In reply, petitioners submit first that the racial transfer 
provision is not casually incidental to the desegregation 
plan, but is as permanent as any other feature of school 
administration in the respondent communities. Moreover, 
the option is an unconstitutional racial discrimination and 
perpetuates the segregated system.

There is no evidence whatsoever in the record that either 
racial transfer provision is temporary or designed to oper­
ate only during a period of transition—although if this 
were true their invalidity would be nonetheless obvious. 
Notably, no party or amicus (including the United States 
which condemns the transfer provision but views it as 
temporary) (United States’ Br. 18) cites anywhere to the 
record to demonstrate that the option is temporary. Of 
course, all equity decrees under continuing jurisdiction 
may be called temporary in the sense that they may be 
modified; but modifications must be related to unforeseen

1 This Respondent here relied on the dissent in Dillard v. School 
Board of the City of Charlottesville, 308 F. 2d 920 (4th Cir. 1962).



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changes in conditions, United States v. Swift S  Co., 286 
U. S. 106. All policies and practices of school hoards are 
subject to change. Perhaps the transfer provision was 
assumed to be transitional because it was coupled to a 
twelve-year desegregation plan. But under this view 
coalescence of the Negro and white zones (R. 52, 214) 
might also be called temporary. And other features, ob­
viously of a permanent nature, also might be termed 
transitional, e.g., paragraphs 5 of the Knoxville and 4 of 
the Davidson County plans (transfers may be allowed for 
“good cause”) (R. 52-53, 214),2 6 of Davidson County plan 
(pupil registration to be held in the spring) and 7 of 
Davidson (transportation to be furnished to eligible 
students) (R. 215). None of these, however, may be as­
sumed to terminate at any time in the foreseeable future, 
and on their face are permanent. There is no reason to 
assume that the racial transfer features are limited in a 
way that these are not.

Indeed, the racial feature should be read in the light 
of Respondents’ proven desire to accomplish no more 
desegregation than compelled to. Knoxville’s Answer as­
serts that so far as Brown v. Board of Education, 347 U. S. 
483; 349 U. S. 294, is concerned “The decisions of that 
[this] Court are never unchangeable, and a different mem­
bership in the future may order differently . . . [although] 
there does not now exist reasonable support for the 
proposition” that this will occur “within the foreseeable 
future” (R. 27). Knoxville has asserted a desire to per­
petuate segregation “indefinitely” (R. 79-80) and features 
of its plan which retain segregation should be read in that 
light. Davidson County similarly made no effort to fulfill

2 The Knoxville supervisor of child personnel testified that the 
racial transfer provisions would merely add an additional ground 
for transfer to the system theretofore employed for 23 years (R. 
117) ; he nowhere suggested that this addition was temporary.



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its constitutional duty to desegregate until specifically com­
pelled by judicial decree.

It is more reasonable to assume on these records that 
these respondents would like to retain as much segregation 
as they can for as long as they can, and the plans, therefore, 
do not permit bare assumptions that their racial features 
will disappear at some indeterminate time in the future. 
On this record, the inescapable conclusion is that after the 
grade-a-year features of the plan have been exhausted, the 
transfer provisions will remain on the books unless ex­
pressly repealed or invalidated by judicial decree.

T h e  Racial O p tio n  P lans A re  U n co n stitu tiona l S ta te  
A ctio n  W h e th er  T em p o ra ry  or N ot.

The racial option is based on an “assumption” (Knox­
ville Br. 5) “that requests for transfers based upon race 
are supported by actual good cause which stems from 
race” {Ibid.). Knoxville refers to “common knowledge” 
that embarrassment, harm and handicap flow from desegre­
gation. The Davidson County brief (p. 7) refers to a 
desire to transfer “to avoid a radical departure from cus­
tom ; or the fear of student friction. . . . ” Both of these 
plans, in actual application, allow “paper” transfers, that 
is, pupils simply choose their schools on the basis of race 
before going to any school (R. 141, 219-220). Therefore, 
neither plan requires transfers on the basis of the ex­
perience of individual children but, a priori, each allows 
an option as to whether one desires to be desegregated 
or not.

This is, of course, contrary to the principal assertion of 
respondents’ briefs, state action in a number of senses. 
(1) It is a complex of private and state conduct in the 
nature of such a combination condemned in N. A. A. C. P. 
v. Alabama, 357 U. S. 449. (2) Moreover, by rule of the



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State, a Negro child is denied the right to transfer in a 
situation wherein a white child explicitly has that right 
and vice versa. This seems to fly in the face of the most 
elementary reading of Brown v. Board of Education, 347 
U. S. 483. If children may not be assigned on the basis 
of race, why should they be permitted to transfer on this 
basis ?

But beyond this, and far more invidious, is (3) the fact 
that the plans so structure the school systems as to per­
petuate segregation for as long as possible (R. 104, 108, 
226, 277). Thus, this Court’s admonition that school dis­
tricts are to act as promptly as possible to convert from 
systems of segregation to “systems” (Brown v. Board of 
Education, 347 IT. S. 483, 494; 349 U. S. 294, 300; Cooper 
v. Aaron, 358 IT. S. 115), of nonsegregation is thwarted by 
a standard of system-wide application designed to per­
petuate segregation to the greatest degree possible while 
affording token compliance stretched out over a long period 
of time.

Petitioners certainly do not contend that if an individual 
child has proven difficulties in a particular educational 
situation, the school officials may not do whatever is neces­
sary to alleviate his personal difficulties. But petitioners 
submit that seldom, if ever, should such a child be per­
mitted transfer on a racial basis. Certainly at the very 
least all other reasonable avenues of approach to the 
problem should be exhausted before, even in an individual 
case, school authorities may consider race.

Racial distinctions between citizens “are by their very 
nature odious to a free people”, Hirabayashi v. United 
States, 320 U. S. 81, 100, and are constitutionally suspect, 
Korematsu v. United States, 323 U. S. 214, 216; cf. Bolling 
v. Sharpe, 347 U. S. 497. One of the principal impediments



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to effectuating the decision of this Court in Brown v. Board 
of Education, supra, has been that resistance has taken the 
form not so much of outright defiance as of perpetuation of 
segregation under forms nominally unrelated to race.

Indeed, Knoxville argues in substance, and in advance 
of investigation of particular cases, that if it were per­
mitted to transfer children on an individual basis because 
of objections to racial desegregation, the end result would 
be essentially what it seeks to accomplish under the racial 
option transfer provision (Knoxville Br. 6). This is a par­
ticularly dangerous prospect for law enforcement when, 
as in Knoxville, “The Board’s serious, frank deliberations 
on the subject of desegregation were not in the formal open 
meetings” (R. 59).

Therefore, while no rule of law can entirely guard against 
decisions which express unstated privately arrived at con­
siderations, any rule which encourages or even allows con­
siderations of race greatly expands the opportunity to 
maintain segregation under other labels. The deliberate 
speed formula allowed time for the solution of specified 
administrative problems and other problems in like cate­
gories. It explicitly excluded hostility to desegregation as 
ground for delay, but because of its generality it could not 
prevent its being used as it was in Knoxville and Davidson 
County as a basis for doing nothing until a court order 
were entered against the defendants. To the extent that 
the deliberate speed concept, as one resting essentially 
on administrative considerations, were to be loosened to 
allow for “transitional problems of personal adjustment 
. . . even when they originate in customs fixed by race” 
(Brief for United States as Amicus Curiae 25; Knoxville 
Br. 3) it will offer additional ammunition to those forces 
in communities which want to do nothing, even though 
there also exist in those- communities forces which desire



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to comply with the Constitution. To the extent that the 
compliance formula is tightened to eliminate any express 
racial consideration, it will strengthen the hand of those 
who desire to do their constitutional duty.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Carl A. Cowan
2212 Vine Avenue, S.E. 
Knoxville, Tennessee

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

327 Charlotte Avenue 
Nashville 3, Tennessee

Attorneys for Petitioners



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