Stell v. Savannah-Chatham County Board of Education Appellants' Reply Brief and Supplemental Brief

    1st the

States ©curt o! Appeals
F oe th e  F if t h  C ibcitit 

No. 20,557

R a l p h  S te ll , et al.,
Appellants,

—v.-
S a v a n n a h -C h a t h a m  C o u n ty  B oard of E ducation , et al., 

an d  L aw rence  R oberts, et al.,
Appellees.

APPEAL FROM TH E  UNITED STATES DISTRICT COURT 
FOR TH E  SOUTHERN DISTRICT OF GEORGIA

APPELLANTS’ REPLY BRIEF AND 
SUPPLEMENTAL BRIEF

C onstance  B ak er  M otley  
J ac k  Greenberg  
D errick  A. B e l l , Jr.

10 Columbus Circle 
New York 19, New York

B. Clarence  M ayfield
910 West Broad Street 
Savannah, Georgia

E. H . Gadsden
458% West Broad Street 
Savannah, Georgia

D onald  L. H ollow ell
859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants



I N D E X
PAGE

Statement ...........................................................................  1

A r g u m e n t

I. The Appeal Is Not Moot ....................................  5

II. The Desegregation Plan Is Constitutionally In­
adequate .................................................................. 10

C o n clu sion  .......................................................................................... 13

T able of C ases

Augustus v. Board of Public Instruction, 306 F. 2d 862 
(5th Cir. 1962) .........................   11

Bates v. Batte, 187 F. 2d 142 (5th Cir. 1951) --------- ------ 9
Blanchard v. Commonwealth Oil Co., 294 F. 2d 834

(5th Cir. 1961) ........................................................- ....  9
Brown v. Board of Education, 347 IT. S. 483 (1959) .... 10 
Bush v. Orleans Parish School Board, 308 F. 2d 491 

(5th Cir. 1962) ................................................................  11
Carter v. Campbell, 285 F. 2d 68 (5th Cir. 1960)..........  9

Dempsey v. Guaranty Trust Co., 131 F. 2d 103 (2d Cir. 
1942), cert, denied 318 U. S. 769 .................................  8

Goss y. Board of Education of the City of Knoxville,
373 U. S. 683 ..................................... ..................... ........  10

Jackson v. School Board of City of Lynchburg, 321 F.
2d 230 (4th Cir. 1963) ...........................................    10

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

Watson v. City of Memphis, 373 U. S. 526 ......................  10



Isr the

IniUb (Cnnri nf Appeals
F oe th e  F if t h  C ibcu it  

No. 20,557

R a l p h  S te ll , et al.,

— v.-
Appellcmts,

S a v a n n a h -C fiath am  C o u n ty  B oakd of E d ucatio n , et al., 
and L aw ren ce  R oberts, et al.,

Appellees.

APPEAL FROM  T H E  UNITED STATES DISTRICT COURT 
FOR T H E  SOUTHERN DISTRICT OF GEORGIA

APPELLANTS’ REPLY BRIEF AND 
SUPPLEMENTAL BRIEF

Statement

This brief serves a dual function. It is submitted, first, 
as a reply to the contention of the defendant-appellee Board 
of Education that the appeal is moot. Second, it discusses 
the proceedings in the district court following this Court’s 
order of May 24, 1963 directing the district court to grant 
an injunction pending appeal. A supplemental record of 
those proceedings has been filed.

Facts Relevant to the Question of Mootness

On May 13, 1963, the district court issued its Order and 
Decree (R. 235) accompanied by “Preliminary Findings 
and Conclusions” (R. 225). The order declared that “ the 
injunction prayed for by the plaintiffs in this case is de­



2

nied,” provided for possible testing of students in the 
school system, and denied costs to any party (R. 235). The 
preliminary nature of the findings and conclusions was 
explained by the district court as follows:

In response to plaintiffs’ further request for an early 
ruling herein the following findings of fact and con­
clusions of law under Rule 52 of the Federal Rules of 
Civil Procedure are made on a preliminary basis. The 
Court will issue its formal opinion and final findings 
within the next thirty days (R. 226).

On May 15, 1963 plaintiffs filed notice of appeal from 
the order of May 13 (R. 236). This Court assumed juris­
diction and on May 24, 1963 ordered the granting of an 
injunction pending appeal. The proceedings held in the 
district court pursuant to that order are described in the 
second section of this statement.

On June 11, 1963, the district court notified all parties 
that the “ formal opinion and final findings” would be pre­
pared by June 28 (R. 254). On June 19, plaintiffs included 
in their designation of the contents of record on appeal the 
following entry: “ 7. Formal Opinion and Final Findings— 
(to be entered)” (R. 255).

On June 28, 1963 the district court issued its “ Opinion 
and Judgment.” Pursuant to the plaintiffs’ designation, 
this was included in, and printed in, the record that is 
now before this Court (R. 260). The portion of the docu­
ment labeled “Judgment” declares, “ The injunction prayed 
for by the plaintiffs in this case is denied and the complaint 
is dismissed” (R. 301). In addition, it denies costs to any 
party, makes provision for a possible showing of inequality 
in specialized instruction, provides for possible testing of 
students, and stipulates that “ Orders heretofore entered 
under mandate from the Court of Appeals with respect to



3

a preliminary injunction remain of force and effect pending 
a prompt appeal from this decision on the merits” (E. 
301-02).

No separate notice of appeal from the order of June 28 
was filed by plaintiffs. It is noted, however, that far from 
considering the case as settled, the plaintiffs, subsequent 
to June 28, participated in a hearing on the defendants’ 
plan of desegregation, appealed from the district court’s 
order of July 29, and continued to prosecute this appeal.

Proceedings Following the Injunction Pending Appeal

On May 24, 1963, this Court ordered the district court 
to enter a judgment requiring the defendant Board of 
Education to submit a plan of school desegregation by 
July 1, 1963 to include the desegregation of one grade by 
September 1963 (Supp. E. 3). This Court’s order con­
cluded with the following:

This order shall remain in effect until the final deter­
mination of the appeal of the within case in the Court 
of Appeals for the Fifth Circuit on the merits, and 
until the further order of this Court. During the pen­
dency of this order the trial court is further directed 
to enter such other and further orders as may be ap­
propriate or necessary in carrying out the expressed 
terms of this order (Supp. E. 8).

On May 31, 1963, the district court adopted the above 
order as its own (Supp. E, 9-15). On July 1, the defendant 
Board submitted its desegregation plan (Supp. E. 18), and 
plaintiffs filed their objections on July 10 (Supp. E. 28). 
A hearing was held on the adequacy of the plan (Supp. E. 
31-104). On July 29, 1963, the district court rendered its 
judgment refusing to approve or disapprove the plan on 
the ground that it lacked jurisdiction to do so (Supp. E.



4

104-116). Plaintiffs tiled notice of appeal on August 28 
(Supp. E. 117). Despite the ruling of the district court, 
the Board of Education has carried its plan into execution.

The desegregation plan submitted by the Board calls for 
“desegregation” of the twelfth grade in September 1963 and 
one grade per year thereafter in descending order (Supp. 
E. 26). In “desegregated” grades, Negro (or white) stu­
dents may apply for transfer to white (or Negro) schools. 
Applications must be signed by both parents, notarized, 
and submitted during a fifteen-day period in advance of 
the school year (Supp. E. 22-23). The plan designates 
seventeen criteria on which the Superintendent may base 
his decision (Supp. E. 21-22). An appeal to the Board of 
Education is provided for unsuccessful applicants (Supp. 
E. 23-26).

The plan contemplates no deviation from total segrega­
tion in the lower grades. Students entering the first grade 
and students newly entering the school system will continue 
to be assigned to segregated schools on the basis of race. 
The procedures and criteria applicable to transfers in “de­
segregated” grades do not apply to students in lower grades 
who request transfer from one segregated school to another 
segregated school (Supp. E. 72-73, 76).

Except for the complex transfer procedures established 
in the plan, no effort will be made by the Board of Educa­
tion to transform a segregated system into a desegregated 
one. Dual zone lines will continue to be operative, even in 
“ desegregated” grades (Supp. E. 77).

Apart from general statements concerning the size of 
the school system, the complexities involved in operating 
a school system, the amount of school construction now in 
progress, and the demands on the time of Board members, 
no reasons were given for the failure of the plan to provide 
for more effective desegregation in a shorter period of time.



5

A R G U M E N T

I.
The Appeal Is Not Moot.

The defendant-appellee Board of Education contends in 
its brief, page 4, that the appeal is moot because the district 
court dismissed the case on June 28, 1963 and no appeal was 
taken. The argument appears to say that questions relating 
to the denial of a preliminary injunction, such as those 
presented by this appeal, no longer require decision because 
the dismissal below and failure to appeal irrevocably de­
prive plaintiffs of ultimate relief. Such an argument ig­
nores entirely the actualities of this litigation.

The present appeal is taken from the district court’s 
order of May 13, 1963. It is not disputed, and it could not 
be, that that order was appealable and was properly ap­
pealed from. The Board of Education’s argument assumes 
that the order of May 13 was no more than a denial of a 
preliminary injunction and that the subsequent order of 
June 28, 1963 was a separate adjudication finally disposing 
of the merits. That assumption is not supported by the 
record.

Plaintiffs-appellants submit that the order of June 28 
has no independent significance. The order of May 13 
decided all questions in the case at the district court level, 
both those relating to the requested preliminary injunction 
and those relating to the requested ultimate relief, a per­
manent injunction. The order of June 28 was merely a 
formalizing of the earlier order, or judgment. In the typi­
cal case the denial of a preliminary injunction need not 
foreclose all issues relating to the request for a permanent 
injunction. Nonetheless, a review of the record in this case



6

discloses quite clearly that the order of May 13 disposed of 
all issues in the case, and the appeal from that order 
presents all issues to this Court on this appeal.

1) Plaintiffs requested both permanent (R. 4) and pre­
liminary (R. 129) injunctive relief. The order of May 13 
did not purport to deny only the preliminary injunction. 
By its terms, it denied “ the injunction prayed for by the 
plaintiffs in this case” (R. 235). Those words appear quite 
plainly to cover both types of requested relief.

2) The order of June 28 provides: “ The injunction 
prayed for by plaintiffs in this case is denied and the com­
plaint is dismissed” (R. 301). The words in the first clause 
are identical to those in the order of May 13. If the moot­
ness argument of the defendants is to be accepted, the 
phrase “ the injunction” meant preliminary injunction on 
May 13 and permanent injunction on June 28.

3) The order of May 13 followed what the district court 
considered to be a complete trial on the merits. It extended 
over a period of three days. All parties were given the 
opportunity to present extensive testimony.

Plaintiffs had requested a hearing on their motion for 
preliminary injunction. This being an ordinary suit to 
desegregate a public school system, and the essential facts 
being undisputed, a hearing on the motion for preliminary 
injunction should have been a relatively uncomplicated pro­
ceeding. Having readily established the essential elements 
of their case, and the Board of Education having closed its 
case, the plaintiffs on May 9 sought an immediate ruling 
(Tr. 85-86). The district court, however, denied the motion 
(Tr. 88) and allowed the interveners to present their psy­
chological evidence. In clarification, counsel for the inter­
veners said, “ it is my understanding that this is a trial on



7

the merits, on this action, and not merely on the motion.” 
The court replied, “Well, it looks like I am proceeding 
on that theory of hearing it all” (Tr. 88). Throughout the 
prolonged testimony of the interveners’ witnesses, the court 
repeated its desire to hear it all (Tr. 97, 130-31, 137, 261).

4) Both the defendants (R. 213) and the defendant- 
interveners (R. 18, 199) had answered the Complaint by 
the time of trial.

5) The district court, realizing that a prompt appeal 
was in the offing, issued an appealable order supported by 
findings and conclusions at the end of the trial on May 13. 
Expressing an intention to elaborate on the reasons for its 
ruling the court said:

Plaintiffs requested early trial in order that any 
relief may be made available by the Fall school term 
and the Court accordingly specially calendared and 
tried the issues on May 9,10 and 13th.

In response to plaintiffs’ further request for an early 
ruling herein the following findings of fact and conclu­
sions of law under Rule 52 of the Federal Rules of Civil 
Procedure are made on a preliminary basis. The court 
will issue its formal opinion and final findings within 
the next thirty days (R. 226).

Thus the court announced that the findings and conclu­
sions were preliminary, not that the order or decree was 
preliminary. Also it promised to issue at a later time a 
formal opinion and findings, not a final order, decree, or 
judgment. 6

6) Nothing in the preliminary findings of fact and con­
clusions of law indicates that the order of May 13 was 
designed to be a denial of preliminary relief only. The



8

first sentence of the preliminary findings states: “ This is 
a school desegregation case in which plaintiffs ask a man­
datory injunction requiring total integration of the schools 
administered by the defendants” (R. 225). It was this in­
junction, not merely the preliminary injunction which the 
order of the same day denied.

7) Between May 13 and June 28 no proceedings were 
held in the district court which could indicate a difference 
in function between the two orders. (On May 31, the dis­
trict court followed this Court’s order of May 24 and 
granted an injunction pending appeal. This, however, is 
not relevant to the meaning of the order of May 13.) If 
only the question of preliminary relief had been decided 
on May 13, presumably further proceedings would have 
been necessary before a ruling on the permanent injunction 
would be appropriate. In fact, the issues were identical: 
if the interveners’ psychological evidence was legally ade­
quate to bar the plaintiffs’ request for preliminary relief, 
by the same reasoning it would bar permanent relief. At 
the trial, the plaintiffs declined the opportunity to rebut the 
interveners’ evidence (Tr. 261-62). Thus, no further pro­
ceedings were had and none were necessary, because the 
two orders ruled on the same issues and served the same 
function—denial of all relief.1

In summary, all of the circumstances of this case point 
inevitably to the conclusion that the order of May 13, from 
which this appeal was duly taken, was the order denying 
all relief, both preliminary and permanent. Because of the

1 This factor alone is sufficient to distinguish the ease cited 
by defendant-appellees, Dempsey v. Guaranty Trust Co., 131 F. 2d 
103 (2d Cir. 1942), cert, denied, 318 U. S. 769. In that ease follow­
ing the ruling on a preliminary injunction a motion to dismiss the 
case was made by defendant, and then the case was dismissed.



9

need for a speedy decision, the district court reserved the 
opportunity to explain its reasons, which it did on June 28 
when it also formalized the order. The order of June 28 
did not differ in substance from the earlier, appealable 
order of May 13, and an additional appeal from the later 
order was unnecessary and would have been meaningless.2

In addition, it must be observed that to dismiss this ap­
peal would result in manifest injustice. The order of June 
28 appeared 46 days after the order of May 13, and well 
after this Court had acted on the appeal. In order to pre­
sent a complete record to this Court the formal opinion 
and final findings were designated for inclusion in this 
record, and the order entered on June 28 is before this 
Court. Surely, the plaintiffs were justified in believing that 
the action taken by the district court on June 28 was of no 
further significance.

In any event, the plaintiffs have shown no inclination to 
drop this case. Since June 28, they have objected to the 
Board of Education’s plan (Supp. R. 28), participated in a 
hearing on the plan (Supp. R. 31), appealed from the dis­
trict court’s order of July 29 refusing to pass on the merits 
of the plan (Supp. R. 117), opposed a petition for writ of 
certiorari filed in the Supreme Court by interveners to 
review this Court’s order of May 24, and continued to prose­
cute this appeal. In Carter v. Campbell, 285 F. 2d 68 (1960), 
this Court held that similar factors constituted a sufficient 
substitute for a formal notice of appeal.

2 Where there is some question as to which of two papers is 
appealable, this Court has followed a liberal interpretation of the 
Federal Rules. See Bates v. Batte, 187 F. 2d 142 (5th Cir. 1951); 
Carter v. Campbell, 285 F. 2d 68 (5th Cir. I960); Blanchard v. 
Commonwealth Oil Co., 294 F. 2d 834 (5th Cir. 1961).



10

II.

The Desegregation Plan Is Constitutionally Inadequate.

On the present appeal, the order of May 13 must he re­
versed, with a direction to the district court to enjoin the 
operation of a segregated school system in Chatham County. 
Because the Board of Education has submitted a plan on 
which a full hearing has been held in the district court, this 
Court is in a position to designate with specificity the scope 
of relief to which appellants are entitled.

The plan submitted by the Board of Education is grossly 
inadequate to achieve any meaningful desegregation. 
Nearly a decade after the Supreme Court’s decision in 
Brown v. Board of Education, 347 U. S. 4S3 (1959) the plan 
provides for desegregation at the rate of one grade per 
year. The Court’s recent opinions in Watson v. City of 
Memphis, 373 U. S. 526 and Goss v. Board of Education of 
the City of Knoxville, 373 U. S. 683, make it clear that 
those who have failed to make a prompt and reasonable 
start cannot further delay complete desegregation for an­
other eleven or twelve years. See Jackson v. School Board 
of City of Lynchburg, 321 P. 2d 230, 233 (4th Cir. 1963).

To make things worse, the Board of Education has be­
gun the plan at the top, the twelfth grade, rather than the 
bottom. There is some question whether this feature of the 
plan complies with this Court’s order of May 24, 1963 
(Supp. R. 8). In any event, by making the transfer plan 
applicable to the twelfth grade, the Board assures a mini­
mum of desegregation because adolescent students already 
established in one school are naturally reluctant to transfer 
to another. Beginning with the lower grades would allow a 
greater degree of desegregation with a minimum of admin­
istrative difficulty.



11

The Board of Education further perpetuates the exist­
ing pattern of segregation by refusing to allow students en­
tering the school system for the first time to be assigned to 
schools on a nonracial basis. See Augustus v. Board of 
Public Instruction, 306 F. 2d 862, 869 (5th Cir. 1962). 
Surely, that modest measure would entail no disruption of 
existing administrative arrangements.

As to those grades that are “desegregated” under the 
Board’s plan, there is only the most limited desegregation. 
Dual zone lines continue to be employed as a basis for 
initial assignment. There are six high schools in the 
county, one white school and one Negro school in each of 
three districts (Supp. R. 77). In the absence of some show­
ing by the Board, which under the second Brown decision, 
349 U. S. 294, bears the burden of proof, that the estab­
lishment of unitary zone lines would be administratively 
impracticable, there is no reason to allow the restriction 
of desegregation to the allowance of transfers. Augustus 
v. Board of Public Instruction, supra; Bush v. Orleans 
Parish School Board, 308 F. 2d 491 (5th Cir. 1962); North- 
cross v. Board of Education of the City of Memphis, 302 
F. 2d 818 (6th Cir. 1962).

Finally, the transfer provisions of the plan place ob­
stacles before those who desire to exercise their constitu­
tional rights. There is no public announcement of the avail­
ability of transfers (Supp. R. 81-82). Transfer applica­
tions are not made readily available to the students, but 
must be obtained in person from the principal or the Super­
intendent (Supp. R. 23). Both parents must sign the ap­
plication and have it notarized (Supp. R. 23). A separate 
application is necessary for each child (Supp. R. 23). All 
applications must be submitted within a fifteen-day period, 
normally by May 15, well in advance of the school year 
(Supp. R. 22). The Superintendent may require interviews



12

with each applicant and his parents (Supp. R. 23) and can 
base his decision on any of seventeen different criteria 
(Supp. R. 21-22). If turned down by the Superintendent, 
the applicant may appeal to the Board of Education (Supp. 
R. 23-26).

One indication of the effectiveness of this plan is the 
results obtained in the first year of its implementation. In 
a system with approximately 2,000 students in the twelfth 
grade alone, of whom approximately 30 per cent are Negro 
(Supp. R. 67-68), only 19 Negro twelfth-graders are attend­
ing school with whites (Appellee’s Brief, p. 3). No white 
students are attending Negro schools, and there is no de­
segregation whatever below the twelfth grade. Nor has 
there been any desegregation of teaching or administrative 
staffs. These are the fruits of the Board’s desegregation 
plan, and the only explanation in the record is inertia and 
minimal compliance.

It is submitted that the Board should be directed to 
bring in a plan providing, at the very least, that transfers 
be allowed in all grades on a reasonable, nonracial basis; 
that students entering the system for the first time be 
assigned without regard to race; and that school zone lines 
be redrawn on a nonracial unitary basis as to the first four 
grades in September 1964, and as to at least two additional 
grades per year thereafter beginning with September 1965.



13

CONCLUSION

For the foregoing reasons, the judgment below should 
be reversed and the trial court directed to issue an in­
junction as requested above.

Respectfully submitted,

C onstance  B ak er  M otley 
J ac k  Greenberg  
D errick  A. B e l l , Jr.

10 Columbus Circle 
New York 19, New York

B. Clarence  M ayfield
910 West Broad Street 
Savannah, Georgia

E. H. Gadsden

458% West Broad Street 
Savannah, Georgia

D onald L. H ollow ell
85914 Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants



14

Certificate of Service

T h is  is  to cebtify  that on the .......  day of April, 1964 I*
served a copy of the foregoing Appellants’ Reply B^ef and 
Supplemental Brief upon Basil Morris, P. 0. Box 396,*
Savannah, Georgia and E. Freeman Leverett, Deputy As- . * 
sistant Attorney General, Starte of Georgia, Elbft-ton, Gebr- •. 
gia, Attorneys for Defendants-Appellants,• and Carter^'- 
Pittman, P. 0. Box 891, Dalton, ^ org ia , J. Walter Cowart,
504 American Building, Savan^ih, Georgia, Charles J.
Block, P. 0. Box 176, Macon, • Georgia, and George S. ® ' •
Leonard, 1730 K Street, N. W., Washington 6, D. C., At--1* ^
torneys for Interveners-Appellees, by mailing copies to 
them at the above addresses via United States mail, air 
mail, postage prepaid.

Attorney for AppeMmts