Calhoun v. Latimer Transcript of Record Volume I

    TRANSCRIPT OF RECORD

UNITED STATES
COURT of APPEALS

F I F T H  C I R C U I T

No.

VIVIAN CALHOUN, et al.

v.

A. C. LATIMER, et al.

Appellants

/ l

Appellees

oVOLUME I /

Appeal from the United States District 
Court for the Northern District of 

Georgia, Atlanta Division



I N D E X
(Volume I)

Page
COMPLAINT ......................................  1
ANSWER ........................................  9
ORDER OF C O U R T ................................  13
DEFENDANTS' PLAN OF DESEGREGATION..............  15
PLAINTIFFS' OBJECTIONS TO DEFENDANTS' DESEGRE­GATION PLAN....................................  25
ORDER OF COURT ON MOTION BY DEFENDANTS TOAPPROVE P L A N ..................................  27
PLAINTIFFS' OBJECTIONS TO PLAN AS AMENDED . . . .  45
DEFENDANTS' PLAN AS FINALLY AMENDED............  46
MOTION FOR FURTHER RELIEF ......................  56
ORDER OF C O U R T ................................  63
ORDER OF C O U R T ................................  68
OPINION ON PLAINTIFFS' MOTION FOR FURTHER RELIEF 70
MOTION FOR FURTHER RELIEF ......................  77
NOTICE OF M O T I O N ..............................  84
DEPOSITION OF JOHN WALTER LETSON ..............  85
DEFENDANTS' RESPONSE TO MOTION OF PLAINTIFFS . . 118
ORDER..........................................  123
MOTION FOR RULE N I S I ..........................  124
ORDER........................   129
ORDER..........................................  130
PLAINTIFFS' PROPOSED FINDINGS OF FACT AND 
CONCLUSIONS OF L A W ............................  131
PLAINTIFFS' PROPOSED PLAN OF DESEGREGATION . . . 150-a



C O M P L A I N T

UNITED STATES DISTRICT COURT 
FOR THENORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

VIVIAN CALHOUN, CORNETHA CALHOUN, 
and FRED CALHOUN, infants, by 
WILLIE CALHOUN, their father and 
next friend.
CORNELL HARPER, JESSIE LEE HARPER, 
BETTY JEAN HARPER, and FRANK HARPER, 
infants, by HENRY L. HARPER, their 
father and next friend.
LEANARD JACKSON, JR., CECELIA 
JACKSON, PHYLLIS JACKSON, and REBA JACKSON, by LEANARD JACKSON, 
SR., their father and next friend.
BETTY JEAN WINFREY, JENNING WINFREY, MELVIN WINFREY, SHARON WINFREY, and 
DORIS WINFREY, by ROOSEVELT WINFREY, their father and next friend.
JUANITA FEARS, and JOHNNY FEARS, by 
JOHNNY FEARS, SR., their father and next friend.
ONITHIA PUTNAM, and CLOUD PUTNAM, by 
DOCK PUTNAM, their father and next 
friend.
ERNEST SWANN, and CHARLES SWANN, by 
RALPH SWANN, their father and next 
friend.
JAMES LESTER, and WILLIAM LESTER, 
by DAVID LESTER, their father and 
next friend.
SANDRA McDOWELL, and SNOWDRA 
McDOWELL, by HUDIE McDOWELL, their father and next friend.
DELANE JENKINS, and MARION JENKINS

FILED IN CLERK'S 
OFFICE Jan. 11,1958
C. B. Meadows, Clerk
BY

Deputy Clerk 

CIVIL ACTION NO.6298



Complaint 2.

by Mrs. RUTH SMITH, formerly Mrs. RUTH JENKINS, their mother and 
next friend.

Plaintiffs,
v.

A.C. LATIMER
ED. S. COOKALLEN L. CHANEY, JR.
RUFUS E, CLEMENT 
L.J. 0>CALLAHAN 
OBIE T. BREWER 
GLENN FRICK
MRS. CLIFFORD N. RAGSDALE 
HARALD JACKSON
As members of the Board of Education 
of the City of Atlanta.
And, Miss IRA JARRELL, SUPERINTEND­ENT OF THE PUBLIC SCHOOLS OF THE CITY OF ATLANTA.

Defendants.

1. The jurisdiction of this court is Invoked pur­
suant to the provisions of Title 28, United States Code, 
Section 1343 (3), this being a suit in equity authorized by 
law, Title 42, United States Code, Section 1983, to be 
brought to redress the deprivation under color of state 
statute, ordinance, regulation, custom or usage of rights, 
privileges and immunities secured by the Constitution and 
laws of the United States or by any act of Congress provid­
ing for the equal rights of citizens. The rights here 
sought to be protected are rights secured by the equal pro­
tection clause of the Fourteenth Amendment to the Constitu­
tion of the United States and Title 42, United States Code,



Complaint 3.

Section 1981.
2. This is a proceeding for a preliminary and per­

manent injunction enjoining defendants from operating the 
public school system of the City of Atlanta, Georgia on a 
racially segregated basis.

3. This is a class action brought by the adult 
plaintiffs for the minor plaintiffs on behalf of themselves 
and on behalf of other adults and minors similarly situated, 
pursuant to the provisions of Rule 23 (a)(3) of the Federal 
Rules of Civil Procedure, The members of this class are 
all adult Negro citizens and their minor children of the 
State of Georgia who reside in the City of Atlanta, Georgia, 
The minors are all eligible to attend the public schools of 
Atlanta, Georgia. The members of this class are all simi­
larly affected by the action of the defendants in maintain­
ing and operating the public school system of Atlanta,
Georgia on a racially segregated basis.

4. The adult plaintiffs in this case are all citi­
zens of the United States and of the State of Georgia, re­
siding in the City of Atlanta, Georgia. Each adult plaintiff 
is the parent of one or more minor children who are eligible 
to attend the public schools, under the control of the de­
fendants. Each minor plaintiff is likewise a citizen of the 
United States and of the State of Georgia, residing in the 
City of Atlanta, Georgia.

3. The adult and minor plaintiffs are respectively:



Complaint 4

WILLIE CALHOUN, VIVIAN CALHOUN, CORNETHA CALHOUN, and FRED 
CALHOUN; HENRY L. HARPER, CORNELL HARPER, JESSIE HARPER, 
BETTY JEAN HARPER, and FRANK HARPER; LEANARD JACKSON, SR., 
LEANARD JACKSON, JR., CECELIA JACKSON, PHYLLIS JACKSON, and 
REBA JACKSON; ROOSEVELT WINFREY, BETTY JEAN WINFREY, JENNING 
WINFREY, MELVIN WINFREY, SHARON WINFREY, and DORIS WINFREY; 
JOHNNY FEARS, JUANITA FEARS, and JOHNNY FEARS, JR.; DOCK 
PUTNAM, ONITHIA PUTNAM, and CLOUD PUTNAM: RALPH SWANN,
ERNEST SWANN, and CHARLES SWANN; DAVID LESTER, JAMES LESTER, 
and WILLIAM LESTER; HUDIE McDOWELL, SANDRA McDOWELL, and 
SNOWDRA McDOWELL; MRS. RUTH SMITH, formerly, MRS. RUTH 
JENKINS, DELANE JENKINS, and MARION JENKINS.

6. The defendants, A.C. LATIMER, ED. S. COOK, ALLEN 
L. CHANEY, JR., RUFUS E. CLEMENT, OBIE T. BREWER, GLENN 
FRICK, MRS. CLIFFORD N. RAGSDALE, and HARALD JACKSON are 
members of the Board of Education of the City of Atlanta, 
and as such, hold office pursuant to the laws of the State 
of Georgia. The defendant, MISS IRA JARRELL, is the duly 
appointed and acting superintendent of the public schools
of Atlanta, Georgia. She is the chief administrative of­
ficer of the public school system of Atlanta, Georgia, and 
holds office pursuant to the laws of the State of Georgia, 
subject to the control and authority of the Board of Educa­
tion of the City of Atlanta, Georgia.

7. The Board of Education of the City of Atlanta 
exists pursuant to the Constitution of the State of Georgia,



Complaint 5.

and the laws of the State of Georgia, as a governmental 
agency of the State of Georgia, charged with the govern­
mental function of establishing, maintaining and operating 
the public school system of the City of Atlanta, Georgia.

8. The public schools of the City of Atlanta,
Georgia are under the direct supervision and control of the 
defendants, as members of the Board of Education of the City 
of Atlanta.

9. Acting under color of their authority and under 
color of the laws of the State of Georgia, the defendants 
are presently operating the public school system of Atlanta, 
Georgia on a racially segregated basis, pursuant to the 
policy, custom, usage, regulations and laws of the State of 
Georgia of enforcing racial segregation in public institu­
tions. Pursuant to the policy, custom, usage, laws and 
regulations of racial segregation in public institutions, 
defendants have designated certain schools of the public 
school system of Atlanta, Georgia as schools for the ex­
clusive attendance of white children and other schools for 
the exclusive attendance of Negro children. Schools for 
the exclusive attendance of white children are staffed by 
white teachers, principals and administrative personnel only. 
Schools for the exclusive attendance of Negro children are 
staffed by Negro teachers, principals and administrative 
personnel only. The minor plaintiffs and other minor Negro 
pupils similarly situated are required to attend the schools



Complaint 6.

designated for the exclusive attendance of Negro pupils 
and are not permitted to attend schools designated for the 
exclusive attendance of white pupils, solely on account of 
their race and color.

10. The adult plaintiffs on their own behalf and 
on behalf of their children attending the public schools 
of the City of Atlanta have intermittently filed, since 
about June 3, 1955 through September, 1956 written peti­
tions with the Atlanta Board of Education, and Miss Ira 
Jarrell, Superintendent of Schools, in which the plaintiffs 
petitioned the said Superintendent of Schools, and the 
Atlanta Board of Education to reorganize the public schools 
of the City of Atlanta on a racially non-segregated basis, 
in compliance with the United States Supreme Court*s de­
cisions of May 17, 1954, and May 31, 1955 in the case of 
Brown v. Board of Education of Topeka. That the defend­
ants, members of the Board of Education of the City of 
Atlanta, Georgia, and the said defendant, Superintendent 
of Schools of the City of Atlanta have failed and refused 
to desegregate the schools within their jurisdiction and 
control. That said defendants have since continued to 
operate the public schools aforesaid on a racially segre­
gated basis; that the defendants have failed and refused to 
make an official declaration of their intent to desegregate 
and cease operating the public schools of the City of Atlanta, 
Georgia on a racially segregated basis.



Complaint 7.

11. The operation of the public school system of 
Atlanta, Georgia on a racially segregated basis, as herein­
above set forth, deprives the minor plaintiffs and other 
minor Negro pupils similarly situated of equal educational 
opportunities in violation of rights secured to them by the 
equal protection clause of the Fourteenth Amendment to the 
Federal Constitution and by Title 42, United States Code, 
Section 1981. The operation of the public school system of 
Atlanta, Georgia, on a racially segregated basis consequently 
results in irreparable injury to minor plaintiffs and other 
minor pupils similarly situated. There is no complete, ade­
quate or speedy remedy at law to compensate the minor plain­
tiffs for the injury which they are presently sustaining as 
a result of the operation of the public school system of 
Atlanta on a racially segregated basis.

WHEREFORE, plaintiffs pray:
1. That proper process may issue and be directed to 

each of said defendants, herein named, requiring them to 
appear and answer this complaint;

2. That upon the filing of this complaint, this 
court will advance this case on the docket and order a speedy 
hearing thereof according to law;

3. That this court will issue a preliminary injunc­
tion pending the final disposition of this case and a per­
manent injunction upon the final determination of this cause 
enjoining the defendants from operating the public school



Complaint 8.

system of Atlanta, Georgia on a racially segregated basis 
and enjoining the defendants from refusing to permit the 
minor plaintiffs to attend any public school in the City 
of Atlanta, Georgia, which they are otherwise qualified to 
attend, solely because of their race and color.

4. That this court allow plaintiffs their costs 
herein, and grant such further, other or additional relief 
as to the court may appear just and proper in the premises.

/s/ E. E. Moore, Jr.
175 Auburn Ave., N.E. 
Atlanta, Georgia

E. E. Moore, Jr.

/s/ Constance Baker Motley
Constance Baker Motley

107 West 43rd Street /s/ Thurgood MarshallNew York, N. Y. Thurgood Marshall



9.

A N S W E R  
(Same Title)

Now come the defendants and answer the complaint 
as follows:

1.
So much of paragraph 1 as alleges that jurisdiction 

of the court is invoked pursuant to Title 28, U. S. C. A. 
§1343(3) and Title 42 U. S. C. A. §1983 does not set forth 
facts and therefore requires no answer. The remainder of 
said paragraph and so much of said paragraph as sets forth 
allegations of fact are denied.

2.
Paragraph 2 does not allege facts and requires no

answer.
3.

Paragraph 3 is denied.
4.

For want of information sufficient to form a belief, 
defendants can neither admit nor deny the allegations of 
paragraph 4.

5.
Paragraph 5 is admitted.

6 .

Answering paragraph 6, defendants admit that the de­
fendants therein named as members of the Board of Education



Answer 10

of the City of Atlanta are members of said Board of Educa­
tion, and that Miss Ira Jarrell is Superintendent of Schools 
of the City of Atlanta, and is the chief administrative of­
ficer of the Board of Education. The remainder of said 
paragraph does not allege facts, but conclusions of law, 
and requires no answer. Insofar as said paragraph alleges 
facts other than those hereinabove admitted, such facts are 
denied.

7.
Answering paragraph 7, defendants say that said para­

graph sets forth and alleges matters of law, not matters of 
fact, and requires no answer. Insofar as the paragraph 
does allege facts, they are denied.

8 .
Paragraph 8 is admitted. Further answering para­

graph 8, defendants say that the public schools of the City 
of Atlanta are dependent for financial support upon State 
funds appropriated by the General Assembly of Georgia, with­
out which the schools cannot be operated.

9.
Paragraph 9 Is denied. Further answering said para­

graph, defendants say that the school children in the City 
of Atlanta customarily attend schools in the neighborhoods 
in which they reside and the enrollment of students in the 
schools they attend is now and for many years has been on a 
neighborhood basis. This practice has developed over a long



Answer 11

period of years during the tenure of predecessors in office 
of the defendants, and without direction on the part of 
school officials, and without any idea of discrimination 
against white children or Negro children on account of race 
or color, or otherwise; and is in accordance with the wishes 
as well as the habits and customs, of the vast majority of 
the citizens of both races.

10 .
Paragraph 10 is denied. Further answering said para 

graph, these defendants say that the defendants Chancy, 
Brewer, Frick, Jackson and O'Callahan did not become members 
of the Board of Education of the City of Atlanta until 
January 1, 1958. They say that certain petitions purporting 
to come from Negro residents of the City of Atlanta have, 
subsequent to June 1, 1955, been filed with the Board of 
Education or with the Superintendent of Schools, but such 
petitions complained of no act or thing done by the Board 
of Education or the Superintendent to any individual with 
respect to any particular school or otherwise.

11 .

Paragraph 11 is denied.
1 2 .

For further answer, defendants say that none of the 
minor plaintiffs has ever applied for admission to any 
school other than that he or she has attended or is attend­
ing; and no one of said minor plaintiffs has ever applied



Answer 12.

for admission to any school attended by white students.
On the contrary, each of said minor plaintiffs has regularly 
enrolled in the school he or she has attended or is now at­
tending. None of said minor plaintiffs has ever been denied 
admission to any school on account of race or color, or for 
any other reason.

WHEREFORE, these defendants pray that the relief 
sought be denied and that they be discharged with their 
reasonable costs.

/S/ J. C. SAVAGE
NEWELL EDENFIELD 
B. D. MURPHY

POWELL GOLDSTEIN FRAZER & MURPHY 
ATTORNEYS FOR DEFENDANTS

The Citizens and Southern National Bank Building 
Atlanta 3, Georgia



1 3 .

ORDER OF COURT
(Same Title - Filed July 9, 195S)

This cause having come on for trial on the 5th day 
of June, 1959 and the Court having made and filed on the 
l6th day of June, 1959 Its Opinion, Findings of Fact and 
Conclusions of Law, and based upon such Opinion, Findings 
of Fact and Conclusions of Law, it is now Ordered:

1. That the defendants and each of them, their 
agents, employees, successors in office, and all persons 
in active concert and participation with them be, and they 
hereby are, enjoined from enforcing and pursuing the policy, 
practice, custom, and usage of requiring or permitting 
racial segregation in the operation of the public schools 
of the City of Atlanta, and from engaging in any and all 
action which limits or affects admission to, attendance 
in, or education of, infant plaintiffs, or any other Negro 
children similarly situated, in schools under defendant's 
jurisdiction, on the basis of race or color:

Provided That, defendants will be allowed a reason­
able period of time to achieve full compliance with this 
Order and for bringing about a transition to a school system 
not operated on the basis of race;

Provided Further That, defendants are herewith di­
rected to present to this Court, on or before the first 
day of December, 1959 a complete plan, adopted by them,



Order of Court 14.

which is designed to bring about compliance with this Order, 
and which shall provide for a prompt and reasonable start 
toward desegregation of the public schools of the City of 
Atlanta and a systematic and effective method for achieving 
such desegregation with all deliberate speed. Such plan may 
be submitted contingent upon the enactment of statutes per­
mitting such plan to be put into operation.

2. That following the filing of defendants' plan 
with this Court, a further hearing will be held in this 
cause, at which time the defendants may offer such evidence 
and arguments as they may desire in support of said plan 
and the plaintiffs may offer such evidence and arguments 
with respect to the plan as they may be advised to present.

3. This Judgment of the Court is not a final Judg­
ment in the case and the Court retains jurisdiction of this 
cause for the purpose of entering such further orders or 
granting such further relief as may be necessary to bring 
about compliance with this decree and during such time as 
may be necessary to put into effect the defendants' plan.

This the 9th day of July, 1959.

/S/ FRANK A. HOOPER________(Prank A. Hooper)
United States District Judge



1 5 .

DEFENDANTS' PLAN OF DESEGREGATION 
(Same Title - Filed Dec. 1, 1959)

NOW come the defendants and In compliance with the 
order of the Court, entered in the above stated case on 
June 16, 1959# submit a proposed plan for the placement of 
pupils in the Atlanta School System, adopted by the Board 
of Education of the City of Atlanta by unanimous vote on 
November 30, 1959.

Said plan is, as is provided by the order of the 
Court, contingent upon the enactment of statutes by the 
General Assembly of Georgia permitting the same to be put 
into operation.

Respectfully submitted,

/S/ J. C. SAVAGE
/S/ NEWELL EDENFIELD
/S/ B. D. MURPHY

Attorneys for Defendants

* * * * *

WHEREAS, The Atlanta Board of Education has been 
directed to present to the Court by December 1, 1959# a plan 
designed to bring about compliance with the order of the 
Court of July 9, 1959; and

WHEREAS, The Atlanta Board of Education is making



Defendants' Plan of Desegregation 16

every effort to provide the Atlanta Public School System 
with the very best buildings, equipment, and other facil­
ities and curricula for approximately 116,000 students; and

WHEREAS, The City of Atlanta is undergoing rapid 
urbanization, bringing an influx of children of varying de­
grees of achievement and ability due not only to individual 
aptitude but to educational opportunities heretofore avail­
able; and

WHEREAS, There is and has been much public construc­
tion in Atlanta, which together with other building has re­
sulted in drastic changes in neighborhood patterns, and these 
changes will be greatly magnified by the proposed slum 
clearance program involving the vacating of more than 1,200 
acres of land with the resultant displacement of families; 
and

WHEREAS, These factors result in not only a contin­
uous influx of new students into the system, but in the con­
tinuous movement of students within the system, and also 
from the system into the suburban areas adjoining Atlanta; 
and

WHEREAS, The changing neighborhood patterns, the 39 
million dollars worth of new school construction since 19^8, 
the great influx of new students, and the continuous move­
ment of students within the system has caused admission, 
assignment, transfer, and continuance of students in and to 
the various schools within the system to become a major



Defendants* Plan of Desegregation 1 7.

problem of the administration; and
WHEREAS, Pending further studies and recommendations 

by the school authorities, the Board of Education considers 
that any general or arbitrary reallocation of pupils hereto­
fore entered in the public school system according to any 
rigid rule of proximity of residence or in accordance solely 
with requests on behalf of pupils would be disruptive to 
orderly administration, and would tend to invite or induce 
disorganization and would impose an excessive burden on the 
available resources as well as the teaching and administrat­
ive personnel of the schools; and

WHEREAS. In September, i960, there will be a short­
age of 58O classrooms in Atlanta schools and many children 
are now on double sessions, housed in churches and facilities 
other than classrooms, and the Board realizes that continuous 
system-wide studies must be made to determine available seats 
for students and studies of achievement and ability of the 
students where these seats may exist as well as other factors 
consistent with the educational policies governing the ad­
mission, assignment, transfer, and placement of pupils in 
the public schools as will be prescribed in this document; 
and

WHEREAS. The State Board of Education has not promul­
gated rules and regulations relative to the placement of 
students in the schools, and this Board has the inherent 
power of pupil placement, and more complete regulations are



Defendants 1 Plan of Desegregation 18

necessary
NOW THEREFORE; To insure orderly procedures of 

uniform application for pupil assignment, transfer and/or 
placement, and to enable the continuing improvement of the 
educational advantages offered, the following rules and pro­
cedure shall be followed:

1, In the assignment, transfer or continuance of pupils 
among and within the schools, or within the classroom 
and other facilities thereof, the following factors 
and the effects or results thereof shall be considered, 
with respect to the individual pupil, as well as other 
relevant matters: Available room and teaching capacity
in the various schools; the availability of transporta­
tion facilities; the effect of the admission of new 
pupils upon established or proposed academic programs; 
the suitability of established curricula for particular 
pupils; the adequacy of the pupil's academic prepara­
tion for admission to a particular school and curricu­
lum; the scholastic aptitude and relative intelligence 
or mental energy or ability of the pupil; the psycholog­
ical qualification of the pupil for the type of teaching 
and associations involved; the possibility of threat of 
friction or disorder among pupils or others; the possi­
bility of breaches of the peace or ill will, or economic 
retaliation within the community; the effect of admission



Defendants1 Plan of Desegregation 19

of the pupil upon the academic progress of other stu­
dents in a particular school or facility thereof; the 
effect of admission upon prevailing academic standards 
at a particular school; the psychological effect upon 
the pupil of attendance at a particular school; the 
home environment of the pupil; the maintenance or 
severance of established social and psychological re­
lationships with other pupils and with teachers; the 
choice and interests of the pupil; the ability to ac­
cept or conform to new and different educational en­
vironment; the morals, conduct, health and personal 
standards of the pupil; the request or consent of par­
ents or guardians and the reasons assigned therefor.

2. Subject to supervision and review by the Board, the 
City Superintendent of Schools shall have authority and 
be charged with responsibility with respect to the as­
signment (including original and all other admissions 
to the school system), transfer and continuance of 
pupils among and within all public schools operated 
under the jurisdiction of the Atlanta Board of Education.

3, The Superintendent shall have authority to determine the 
particular public school to be attended by each child 
applying for assignment or transfer, and no child shall 
be entitled to be enrolled or entered in a public school 
until he has been assigned thereto by the Superintendent



Defendants1 Plan of Desegregation 20.

or his duly authorized representative. All existing 
school assignments shall continue without change until 
or unless transfers are directed or approved by the 
Superintendent or his duly authorized representative.

Between June 1st and June 15th applications for the ad­
mission, assignment or transfer, and/or placement of 
pupils to or in particular schools shall be directed to 
the Superintendent of Schools and shall be delivered to 
the school principal unless otherwise directed by the 
Superintendent on forms provided by the Superintendent, 
and made available at the offices of the Board of Edu­
cation. Such forms shall be delivered only on request 
of and to the applicant student or to his parent or 
legal guardian, in person, by the principal of the 
school then attended by such student or by the Super­
intendent of Schools.

A separate application must be filed for each pupil 
desiring assignment or transfer to a particular school 
and no joint application will be considered.

Applications for assignment or transfer of pupils must 
be filled in completely and legibly in ink or type­
writer and must be signed by both parents or the parent 
to whom the child has been awarded by court proceedings, 
or the legal guardian of each child for whom application



Defendants* Plan of Desegregation 21.

Is made. Further, the application must be notarized 
at the time it is filed. Notice of the action taken on 
each application shall be mailed to the parents or 
guardian, at the address shown on the application, which 
shall be final, unless a hearing before the Board is 
requested in writing fifteen days from the date of mail­
ing such statement.

7. The Superintendent may in his discretion require inter­
views with the child, the parents or guardian, or other 
persons and may conduct or cause to be conducted such 
examinations, tests and other investigations as he deems 
appropriate. In the absence of excuse, satisfactory to 
the Superintendent or the Board, failure to appear for 
any requested examination, test or interview by the 
child or the parents or guardian will be deemed a with­
drawal of the application.

8. A parent or guardian of a pupil may file in writing with 
the Atlanta Board of Education objections to the assign­
ment of the pupil to a particular school, or may request 
by petition in writing assignment or transfer to a 
designated school or to another school to be designated 
by the Board. Unless a hearing is requested, or unless 
the Board deems a hearing necessary, the Board shall 
act upon the same within a reasonable time stating its 
conclusion. If a hearing is requested or if the Board



Defendants’ Plan of Desegregation 22

deems a hearing necessary with respect to the Superin­
tendent's conclusion on an application, the parents or 
guardian will be given at least five days' written 
notice of the time and place of the hearing. The hear­
ing will be begun within thirty days from the receipt 
by the Board of the request. Failure of the parents or 
guardian to appear at the hearing will be deemed a with­
drawal of the application.

The Board may conduct such hearing or may designate not 
less than three of its members to conduct the same and 
may provide that the decision of the members designated 
or a majority thereof shall be deemed a final decision 
by the Board. The Board of Education may designate one 
or more of its members or one or more competent examin­
ers to conduct any such hearing, take testimony, and 
report the evidence, with his recommendation, to the 
entire Board for its determination. In addition to 
hearing such evidence relevant to the individual pupil 
as may be presented on behalf of the petitioner, the 
Board shall be authorized to conduct investigations as 
to any objection or request, including examination of 
the pupil or pupils involved, and may employ such agents 
and others, professional and otherwise, as it may deem 
necessary for the purpose of such investigations and 
examinations. No final order shall be entered in such



Defendants’ Plan of Desegregation 23

case until each member of the Board of Education has 
considered the entire record.

10. Unless postponement Is requested by the parents or guar­
dian, the Board will notify them of its decision within 
twenty days after the conclusion of the hearing. Ex­
ceptions to the decision of the Board may be filed, 
within five days of notice of the Board’s decision, and 
the Board shall meet within fifteen days of the receipt 
of the exceptions to consider the same. Any person dis­
satisfied with the final decision of the Board may ap­
peal to the State Board of Education as provided by law.

11. If, from an examination of the record made upon objec­
tions filed to the assignment of any pupil to a particu­
lar school, or upon an application on behalf of any 
pupil for assignment to a designated school, or another 
school to be designated by the Board, or from an examin­
ation of such pupil by the Board or its authorized rep­
resentative, or otherwise, the Board shall determine 
that any such pupil is between his or her seventh and 
sixteenth birthdays and is mentally or physically in­
capacitated to perform school duties, or that any such 
pupil is more than sixteen years of age and is mal­
adjusted or mentally or otherwise retarded so as to be 
incapable of being benefited by further education to the 
extent that further use of public funds for the education



of such pupil is not justified, the Board may assign 
the pupil to some available vocational or other special 
school, or terminate the public school enrollment of 
such pupil altogether.

12. Beginning September 1, i960, or on September 1, follow­
ing favorable action by the General Assembly of Georgia, 
student assignment in the Atlanta Public School System 
shall be made in accordance with aforesaid rules and 
regulations and without regard to race or color. For 
the first school year in which it is effective, the 
plan shall apply to the students in the 12th grade. 
Thereafter, in each successive year, the plan shall be 
expanded to the immediate lower grade; e.g,, in 1961-62 
—  grade 11, in 1962-63 —  grade 10, etc,, until all 
grades are included.

13. Nothing contained in this resolution shall be construed 
to prevent the separation of boys and girls in any school 
or grade, or to prevent the assignment of boys and girls 
to separate schools; and

14. These rules and procedure shall be contingent upon the 
enactment of statutes by the General Assembly of Georgia 
permitting the same to be put into operation, and shall 
be submitted to the General Assembly for approval.
Counsel are directed to transmit copies to the President

Defendants* Plan of Desegregation 24.



Defendants* Plan of Desegregation 25

of the Senate and the Speaker of the House of Represen­
tatives upon authorization by the Court.

Adopted by the Atlanta Board of Education 11/30/59
Date

* * * * * * * * * *

PLAINTIFFS' OBJECTIONS TO 
DEFENDANTS' DESEGREGATION PLAN

(Same Title - Filed Dec. 12, 1959)

Come now the plaintiffs by their undersigned attor­
neys and object to the plan filed in this court by the de­
fendants herein on the 30th day of November 1959 in accord­
ance with certain provisoes of the order of this court made 
and entered in this cause on the 9th day of July 1959 and 
as grounds for their objection show the following:

I. The Present Plan Is Incomplete In That It 
Is Concerned With Only One Part Of The 
Order Of This Court--Pupil Assignment,

II. The Plan Avoids The Duty Imposed On 
Defendants To Desegregate,

III. The Inherent Delays Embodied In The Present 
Plan Makes A Prompt And Reasonable Start 
Impossible.

IV. The Burden On Defendants To Show That
Additional Time Is Necessary, Once A Start 
Toward Full Compliance Has Been Made, Has 
Not Been Met.

V. Two Of The Factors Which The Plan Requires 
Consideration Of Are Constitutionally Irrel­
evant And May Not Be Applied In This Case.



Plaintiffs* Objections 26.

VI. Certain Criteria Which The Plan Requires 
Shall Be Considered Are So Vague And Indefinite, So Dependent Upon Subjective 
Judgment, And So Irrelevant As To Permit 
Of Arbitrary Action In The Circumstances 
Of This Case.

VII. The Plan Cannot Be Made Contingent Upon 
The Enactment Of Statutes By The General 
Assembly Of Georgia Permitting The Same 
To Be Put Into Operation.

E. E. Moore, Jr.
Suite 201
175 Auburn Avenue, N.E. 
Atlanta, Georgia
Constance Baker Motley 
Suite 1790 
10 Columbus Circle 
New York 19, New York
Thurgood Marshall 
Suite 1790 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs
Donald L. Hollowell A. T. Walden

Of Counsel



27.

ORDER OF COURT ON MOTION BY DEFENDANTS 
___________TO APPROVE PLAN____________

(Same Title - Filed Dec. 30, 1959)

Pursuant to Order of this Court dated January 6, 1959 
defendants, as members of the Atlanta Board of Education, 
have submitted to the Court a Plan under which they propose 
to operate the Atlanta Public Schools without any discrimina­
tion as to race or color. The Court issued a rule nisi, 
plaintiffs filed their objections to the Plan, and the matter 
came on for hearing on December 14, 1959.

Defendants promptly complied with the Order of Court 
in preparing and submitting their Plan, but cite no author­
ities in support of the same. Plaintiffs* counsel have 
cited to the Court a few decisions which bear upon the ques­
tion. As the Plan must be passed upon by the Court prior to 
convening of the Georgia Legislature and court calendars are 
already set up covering the intervening period it has been 
necessary for the Court over the Christmas Holidays to give 
as much study to the matter as possible.

The Court has been greatly assisted in this matter 
by an article by Professor Daniel J. Meador, Assistant Pro­
fessor of Law at the University of Virginia, appearing in the 
Virginia Law Review of May, 1959 beginning at page 517, which 
reviews many cases and statutes bearing upon the questions 
here involved and many of the cases cited below were obtained



Order of Court on Motion by Defendants 28

by the Court from that article. Should the Court find it 
necessary this Opinion will be supplemented or revised at a 
later date.

THE PLAN SUBMITTED.
As introductory to the Plan itself the resolution 

adopting the same states certain pertinent facts confronting 
the Atlanta Board of Education, and these facts not being re­
futed by the plaintiffs are taken to be true. Among other 
things a recital is made that the Board is faced with the 
task of educating 116,000 pupils, of which approximately 
forty per cent, or some 46,400 are negroes; that there is 
at this time a rapid influx of children of school age in to 
the City, that these children vary in achievement and ability; 
that there is at present a shortage of some 580 class rooms, 
many classes are held in churches and other buildings, and 
many have double sessions. Other problems confront the 
Board brought about by slum clearances and changes in resi­
dential patterns in various communities.

The foregoing facts are stated by the Court to illus­
trate the problems confronting the defendant Board of Educa­
tion. The Plan abolishes segregation beginning at the twelfth 
grade, and each year takes in a lower grade until all grades 
in all schools are included, and should all or a large part 
of 46,400 negro children apply for assignment at one time, 
it would of course put an intolerable burden upon the School 
Board to process their applications and make readjustments in



Order of Court on Motion by Defendants 29.

all classes and in all schools. That fact must have been in 
the mind of the defendants when they proposed commencing the 
Plan with only the twelfth grade.

Also, It is recognized that where such a Plan begins 
with the first grade and extends to the higher grades there 
is a greater problem as to adequate housing, and a greater 
degree of disruption In Initiating the Plan.

Essentially the Plan contemplates that all pupils in 
the schools shall until and unless transferred to some other 
school, remain where they are, all new and beginning students 
being assigned by the Superintendent or his authority, to a 
school selected by observance of certain standards as set 
forth in the proposed Plan.

Included in the objections to the Plan offered as a 
whole are these:

That the Plan is not complete, that it "avoids the 
duty imposed on defendants to desegregate," that "the inher­
ent delays embodied in the plan makes a prompt and reasonable 
start impossible; that defendants do not show that additional 
time is necessary, that two of the factors for transfer of 
placement are constitutionally irrelevant and that the cri­
teria upon which the Plan proceeds Is too vague and indefinite. 
It is also attacked upon the ground that it is made contin­
gent upon passage of statutes by the Georgia General Assembly.

As many of these objections are similar they will be 
discussed under the several headings set forth below:



Order of Court on Motion by Defendants 30

(l) The objection to the Plan that it allegedly 
"avoids the duty imposed on defendants to desegregate," is 
an objection heretofore frequently considered by the courts 
and uniformly rejected.

The real essence of this objection stems from the 
fact that in urban areas the public schools are frequently 
located in the midst of large residential areas either negro 
or white, and, when pupils are assigned to the school near­
est to their homes and therefore reached by them more safely 
and easily, the result is that the school will naturally, 
without any racial discrimination, be composed practically 
without exception of only white or negro pupils.

The above result, however, where it pertains, is not 
necessarily brought about on account of racial discrimina­
tion, but on account of geography and residential patterns.

In the case of Borders vs. Hippy, 247 F.2d 268, at 
p. 271, the Fifth Circuit Court of Appeals speaking through 
Judge Rives (now Chief Judge of that Circuit) wrote as fol­
lows :

"The equal protection and due process clauses of the fourteenth amendment do not 
affirmatively command integration, but they 
do forbid any state action requiring segre­
gation on account of their race or color of 
children in the public schools. Avery vs. 
Wichita Falls Independent School District,
5 Cir., 1957, 2Hl F.2d 230, 233. Pupils may, of course, be separated according to 
their degree of advancement or retardation, 
their ability to learn, on account of their 
health, or for any other legitimate reason, 
but each child is entitled to be treated as



Order of Court on Motion by Defendants 31.

an individual without regard to his race 
or color."

The case just cited was subsequently cited with approval by 
the same court, in Holland vs. Board of Public Instruction, 
258 F.2d 730. It is the law in this Circuit and is binding 
upon this Court.

The same principle of law has been followed in other
cases.

In Avery vs. Wichita Palls Independent School Pis
trlct, 24l F.2d, 230, the court cited with authority the
opinion of a district court which held, with reference to
the case of Brown vs. Board of Education, 3^7 U.S., 483,
that the Supreme Court

"..has not decided that the states must 
mix persons of different races in the schools 
or must require them to attend schools or 
must deprive them of the right of choosing 
the schools they attend. What it has decided, 
is that a state may not deny to any person 
on account of race the right to attend any 
school that it maintains . . .  if the schools 
which it (the State) maintains are open to 
children of all races, no violation of the 
Constitution is involved even though the 
children of different races voluntarily attend 
different schools, as they attend different 
churches. Nothing In the Constitution or in 
the decision of the Supreme Court takes away 
from the people freedom to choose the schools 
they attend. The Constitution, in other words, 
does not require integration; it merely forbids 
discrimination. It does not forbid such segre­
gation as occurs as the result of voluntary 
action."
In a subsequent case, Rippy vs. Borders, 250 F.2d 

690, the Court again announced its adherence to the fore-



Order of Court on Motion by Defendants 32

going principles.
In the Fourth Circuit in the case of Thompson vs.

County School Board of Arlington County, 144 F.S. 239, Judge
Bryan wrote as follows:

"It must be remembered that the decisions 
of the Supreme Court of the United States 
in Brown vs. Board of Education, 1954, 347 
U.S. 483, 74 S Ct. 686, 98 L.Ed. 873 and 
1933, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed.,1083, do not compel the mixing of the differ­
ent races in the public schools. No general 
reshuffling of the pupils in any school system 
has been commanded. The order of that Court is simply that no child shall be denied admission 
to a school on the basis of race or color . . . .  
Consequently, compliance with that ruling may 
well not necessitate such extensive changes in 
the school system as some anticipate."

The above decision was affirmed by the Court of Appeals of 
the Fourth Circuit and certiorari to the United States 
Supreme Court was denied. See The School Board of Char­
lottesville, Virginia, et al vs. Doris Marie Allen, et al,
240 F .2d p.59.

The Plan of the Atlanta School Board therefore, Is 
not invalid merely because It prohibits racial discrimination 
rather than requiring a mixing of the races.

(2) Objection is made to the proposed Plan on the 
ground of "the inherent delays embodied in the Plan."

Plaintiffs’ counsel insist that the Plan in question 
does not meet the requirements laid down by the Supreme Court. 
They cite the case of Cooper vs. Aaron, 358 U.S., p.l, where 
at p, 7, the Supreme Court pointed out that:



Order of Court on Motion by Defendants 33.

"delay in any guise in order to deny the 
constitutional rights of negro children 
could not be countenanced, and that only 
a prompt start, diligently and earnestly pursued, to eliminate racial segregation 
from the public schools could constitute 
good faith compliance."
There is no complaint that the processes of the Court

have not moved with suitable speed. As a matter of fact, the
Order requiring a Plan to be submitted was entered within 
less than two years from the date of the filing of the suit.
The charge of delay is based upon the contention that a
period of twelve years is required for the completion of the 
elimination of desegregation in all of the classes in all of 
the schools.

Counsel for plaintiffs do not cite any cases holding 
that, where a prompt start is made, it can be said not to be 
diligently and earnestly pursued because it requires a total 
period of twelve years. Suffice it to say that since rendi­
tion of the Brown decision a number of school boards have 
established plans, some beginning at the first grade and ex­
tending through the higher grades, others beginning at the 
higher grades and extending through the first grades, and as 
far as this Court knows, none of such plans have been rejected 
upon the basis that they do not move with sufficient speed.
A number of these plans are contained in cases which are 
hereinafter cited.

(3) A general review of the measures taken in many 
southern states and border states since the rendition of the



Order of Court on Motion by Defendants 3 4 .

Brown decision, both by way of legislative enactments and by
way of plans adopted without legislative action, show that
the so-called Pupil Placement Plan (also referred to as
Pupil Assignment Plans, Enrollment Plans, etc.) have been
adopted in one form or another in many states, including

(1)Virginia, North Carolina, Alabama, Louisiana, South Caro­
lina, Florida, and Tennessee. In some of these states the 
plans were adopted soon after the Brown decision, although 
there was at the time of the adoption of the same, no litiga­
tion pending nor any action being taken toward the elimination 
of racial discrimination. The plans were no doubt adopted 
against the day when such efforts would be made and they were 
adopted in full recognition of the fact that the people of 
the states adopting them had no desire to abolish segregation, 
but considered it wise to make plans for the future against 
the day when segregation in such states might be enjoined by 
the courts, Mississippi was one of the first states to adopt 
such legislation, though as yet there have been no efforts 
to abolish segregation in that state.

It appears also the Pupil Placement Plans have been

(l) The legislative history of Virginia's first Pupil Place­
ment Law which was held invalid is contained in Adkins vs. 
School Board, 148 F.S., 430, decided January 11, 1957. Sub­
sequent legislation in Virginia upon this question and var­
ious local plans therein established based upon the inherent 
power of the school authorities, are not discussed in this Opinion.



Order of Court on Motion by Defendants 3 5 .

of force in various parts of the country for many years be­
fore the matter of racial discrimination became an issue.

It is now well established that school authorities 
have the inherent power to exercise their own discretion as 
to the assignment of pupils to various schools within their 
respective systems so long as their discretion is exercised 
in good faith and discrimination does not exist.

It therefore appears clearly that the Plan submitted 
by defendants is within the power of the defendant School 
Board to establish the same unless subject to one or more 
of the defects charged against it.

(4) Plaintiffs insist that "two of the factors which 
the Plan refuse consideration of are constitutionally irrele­
vant and may not be applied in this case," these factors 
being the following:

(1) The possibility of threat of friction 
or disorder among pupils or others, and
(2) The possibility of breaches of the 
peace or ill will, or economic retaliation 
within the community.

In the case of Cooper vs, Aaron, 358 U.S., p.l, the 
School Board in Little Hock sought a postponement of their 
program for desegregation "because of extreme public hostil­
ity. " The trial judge found as a fact that there were "re­
peated incidents of more or less serious violence directed 
against negro students and their property" (see p. 13). The 
Supreme Court held that the foregoing facts did not justify



Order of Court on Motion by Defendants 36

a postponement of the plan of desegregation, stating that 
however desirable the preservation of the public peace may 
be "it cannot be accomplished by laws or ordinances which 
deny rights created or protected by the Federal Constitution, 
(See p, 16).

It therefore follows that the two considerations 
quoted above cannot validly be considered by the Board of 
Education where such factors pertain only to race or color. 
Whether these factors might be material under facts not 
involving race or color need not now be determined. That 
is to say, whether or not the personal traits of a pupil, 
regardless of race or color, might create a possibility of 
threat of friction or breach of peace is another question.

(5) Plaintiffs’ counsel contend that the following
standards are too vague and indefinite, to-wit:

"(l) the psychological qualification of the pupil for the type of teaching and associa­
tions involved (Paragraph l).
(2) the psychological effect upon the pupil 
of attendance at a particular school (Id.).
(3) the home environment of the pupil (Id.),
(4) the maintenance or severance of estab­
lished social and psychological relation­
ships with other pupils and with teachers
(Id.).
(5) the ability to accept or conform to new 
and different educational environment (id.).
(6) the morals, conduct, health and personal 
standards of the pupil (Id.)."

It Is true that "psychological qualifications" and



Order of Court on Motion by Defendants 37

"psychological effect" are broad and general terms. Psychol­
ogy covers a vast field. "Psychological test" has been de­
fined as "any method used for measuring an individual’s 
mental characteristics, as memory, intelligence, emotional­
ity, intelligence or speed of reaction." See Webster's New 
International Dictionary, 2nd Ed. Certainly the foregoing 
factors would be relevant and material in Pupil Placement and 
there is no reason why they should be applied in a discrim­
inatory way. The fact that the language is general does not 
mean that it can be made to encompass a test which would not 
be valid.

Should the defendant Superintendent of Schools inter­
pret such factors in a way that would be discriminatory the 
pupil involved would have the right of review. A finding 
against a pupil based upon psychological tests should be suf­
ficiently definite so that the ruling upon review could be 
understood.

Indeed the Supreme Court in deciding the case of 
Brown, et al vs. Board of Education of Topeka, 3^7 U.S.,483. 
based its decision in part upon the psychological effect 
which certain practices may have upon the students involved.

(6) Plaintiffs also contend in their brief that the 
Plan in question is not proposed in good faith and will be 
violated. This same contention was urged in the case of 
Shuttlesworth vs. Virmlngham Board of Education, 162 F.S.,
372, but was rejected by a three-judge court whose judgment



Order of Court on Motion by Defendants 38.

was affirmed. 358 U.S., 101. The trial court after stating 
that they could not in testing the constitutionality under­
take a search for motive stated the following:

"If, however, we could assume that the Act was 
passed by the Legislature with an evil and unconstitutional intent, even that would not 
suffice. As executive officers of the State, the 
members of the defendant Board are likewise 
required to 'be bound by Oath or Affirmation to 
support this Constitution.' No court without 
evidence can possibly presume that members of the defendant Board of Education will violate 
their oaths of office."
The objection is not well taken.
(7) Plaintiffs object to the administrative proced­

ure set forth in the Plan whereby a pupil might have a review 
of the rejection of his application for placement or trans­
fer. In plaintiff's brief it is stated:

"The Plan fails to set a period of time within 
which the Superintendent of the Board must act upon an application for assignment or transfer."

This objection is well taken. Following is an outline of the 
Plan in so far as it regards administrative appeal:

Under the schedule contained in the Plan for the ad­
ministrative consideration of these applications, it would be 
difficult if not impossible, for an application filed on 
June 15th to be completely processed by September 1st for 
this reason: Upon filing of application for transfer on or 
before June 15th, the Board is required to "act upon the same 
within a reasonable time" (Paragraph 8 of the Plan). If a 
hearing is requested by the applicant or held by the Board,



Order of Court on Motion by Defendants 39.

five days notice shall be given to the parents or guardian 
and "the hearing will be begun within thirty days from the 
receipt by the Board of the request" (Paragraph 8 of the 
Plan). A hearing may be conducted by the Board itself, in 
which event it could probably make a prompt decision. How­
ever, it is provided said hearing may be had before not less 
than three of its members, or before competent examiners, 
which shall report to the Board and "no final order shall be 
entered in said case until each member of the Board of Edu­
cation has considered the entire record." The Board will 
notify applicant of its position "within twenty days after 
the conclusion of the hearing." Exceptions to the decision 
made by the Board may be filed within five days of notice of 
the Board's decision, and the Board shall meet within fifteen 
days of the receipt of the exceptions to consider the same.

The foregoing would consume a period of time in ex­
cess of seventy-five days, and only seventy-five days elapse 
between June 15th and September 1st. Furthermore, endless 
delay could be caused by the provision that no final order 
would be entered before each member of the Board of Educa­
tion should consider the entire record, nor does it appear 
certain that some member will not be hindered in some way from 
considering the entire record.

The Plan further provides that "any person dissatis­
fied with the final decision of the Board may appeal to the 
State Board of Education as provided by law." To that end



Order of Court on Motion by Defendants 40.

there was introduced in evidence (Plaintiffs’ Exhibit #l) a 
booklet entitled "Georgia School Laws", Part XXXVI pertaining 
to procedure in cases on appeal to the State Board of Educa­
tion. However, that portion of the school laws pertains to 
appeal in "all controversies heard by a county board of 
education" and this case involves a city board of education.

As the defendant school board has merely submitted 
its plan because the Court ordered it to do so, and is making 
no effort to sell the Plan to the Court, various aspects of 
the matter are left open. The Plan, however, will have to 
be changed in so far as the procedure in regard to applica­
tions for transfer are concerned, so as to insure a hearing 
upon such applications promptly following June 15th of each 
year, and a final administrative decision on the same on or 
before September 1st of each year. Explanation should also 
be made in connection therewith as to what is meant by 
"appeal to the State Board of Education," particularly since 
the latter party is not a party to this case and cannot be 
compelled by this Court to make a ruling upon such appeal.

Counsel for defendants stated at the hearing that 
defendants would be willing to amend this Plan, and defend­
ants are therefore directed to file an amendment to the same 
with this Court in the regards above specified on or before 
January 6, i960, serving opposing counsel with a copy of the 
amendment immediately upon its completion, and plaintiffs may 
file written objections thereto within five days thereafter,



Order of Court on Motion by Defendants 4 1.

and the Court will then make a ruling upon any objections 
then pending.

There are several decisions which go into the matter 
of validity of standards which school authorities may adopt 
as to Pupil Placement and Assignment, same being discussed 
in Shuttlesworth vs. Birmingham Board of Education, 162 F.S., 
P. 372. There a three-judge court upheld the Alabama statute 
and its decision was affirmed by the United States Supreme 
Court (358 U.S., 101).

The trial court pointed out that Pupil Placement 
Laws had been enacted in ten states (see p.379> h.n.6). At­
tention was called to the fact that statutes in Louisiana 
and Virginia had been held void, pointing out also that the 
Alabama law was more similar to a statute of North Carolina 
which had been held valid in Carson vs. Warlick, 238 F.2d 
724. cert, denied 353 U.S., 910. This Court assumes that 
all of the standards set forth in the proposed Plan not 
herein attacked are conceded to be valid.

Able counsel for plaintiffs places great emphasis on 
the case of Gibson vs. Board of Public Instruction of Dade
County. Florida, et al.. _____ F.2d, p. _____ (Nov. 24, 1959)
by the Fifth Circuit Court of Appeals. This Court interprets 
that case as holding that the Pupil Assignment Law involved 
therein did not meet the requirements of law primarily for 
the reason that after its adoption,

"no notice or advice from the Board or



Order of Court on Motion by Defendants 42.

Superintendent was given to the children 
and their parents . . .  to the effect that 
negro children . . . were not permitted to 
have considered fairly their choice of a 
school"

and upon the further ground that after adoption of the Plan 
the school authorities continued to designate the schools 
separately according to races. That case does not seem to 
be controlling upon the case at Bar.

(8) It is contended "the Plan can not be made con­
tingent upon the enactment of statutes by the General As­
sembly of Georgia permitting the same to be put into opera­
tion." As to the above objection at the time of the hearing 
on December 14th the Court sought to make full explanation 
concerning the provisions in the Order of this Court entered 
July 9, 1959 that defendants might submit a plan contingent 
upon its approval by the Georgia Legislature.

At the risk of repetition the Court now states that 
the existence of certain Georgia statutes would mean that 
the mixing of races in any school of the Atlanta School 
System would mean that all financial aid to the same from 
the State would be cut off, and apparently without the aid 
of funds from the State the Atlanta School System could not 
operate, as a great portion of the finances for Georgia 
schools is derived from the State.

For the Court to order the Atlanta Public Schools to 
desegregate would be equivalent therefore to ordering them to 
close. Since the Legislature meets in January, i960 and the



Order of Court on Motion by Defendants 43

next school terras begins in September, I960, there is there­
fore no delay caused by making the Plan contingent upon the 
passage of legislation which will permit the Atlanta schools 
to carry through their plan without punitive action on the 
part of the State.

As then stated by the Court, it was and is, the feel­
ing of the Court that the people of Georgia through their 
chosen representatives in the Legislature should be allowed 
to make the important decision as to whether they would pre­
fer the closing of their schools on one hand, to the gradual 
desegregation of the schools on the other hand, pursuant to 
the Plan under consideration.

(9) To guard against the contingency that certain 
portions of the proposed Plan might hereafter be held in­
valid by the courts for any reason, the Plan should contain 
a severability provision so that the elimination of any in­
valid test or standard would not cause the entire Plan to 
fall. Compare Shuttlesworth vs. Birmingham Board of Educa­
tion. 162 F.S., p. 372(7).

(10) By way of Summary the rulings now made by the 
Court are as follows:

(a) The Plan submitted by the Board of Educa­
tion must be amended on or before January 6, i960 to provide*T
for more expeditious administrative procedure (see Paragraph 7 
above).

(b) The Plan must be amended so as to contain



Order of Court on Motion by Defendants 44.

a severability provision (see Paragraph 9 above).
(c) Standards referred to in Paragraphs 4 and

5 above, relating to contemplated friction or breaches of the 
peace, shall be taken to contemplate factors other than racial 
discrimination. Factors concerning "economic retaliation" 
must be stricken from the Plan (see Paragraph 4 above).

(d) Standards involving psychological factors 
must be applied without reference to race or color, place­
ments based upon the same must specifically designate the 
facts upon which the findings are made.

(11) Counsel for all parties have the right to move 
for amendment to this Order based upon any misstatement of 
facts that might be contained therein. Further Order of the 
Court will be made on or after January 6th next when amend­
ment to the Plan is offered by defendants.

This the 30 day of December_______, 1959.

/s/ FRANK A. HOOPER_________
FRANK A. HOOPER 

UNITED STATES DISTRICT JUDGE.



45.

PLAINTIFFS' OBJECTIONS TO PLAN AS AMENDED 
(Same Title - Filed Jan. 8, i960)

Come now the plaintiffs by their undersigned attorneys 
and object to the amended desegregation plan of defendants 
upon the same grounds upon which plaintiffs objected to de­
fendants' original desegregation plan, except insofar as the 
order of this Court dated December 30, 1959 upheld plain­
tiffs' objections, and object to the plan as amended on ad­
ditional grounds, as follows:

I. The plan, as amended, does not provide for a 
speedy final administrative review of the action of the 
superintendent in assigning children to school.

II. The plan, as amended, does not explain what the 
defendants mean by appeal to the State Board, an explanation 
of which was required by order of this Court of December 30, 
1959.

III. The plan should incorporate the directions con­
tained in the order of this Court of December 30, 1959i 
Paragraph (10)(c) and (d).

E. E. Moore, Jr.
Suite 201175 Auburn Avenue, N.E. 
Atlanta, Georgia
Constance Baker Motley 
Thurgood Marshall

Donald L. Hollowell Suite 1790- 10 Columbus Circle
A. T. Walden New York 19, New York

Of Counsel Attorneys for Plaintiffs



46.

DEFENDANTS' PLAN AS FINALLY AMENDED

RESOLUTION OF ATLANTA BOARD OF EDUCATION ADOPTED 
NOVEMBER 30, 1959 AND AMENDED JANUARY 4, i960 AND 

AMENDED JANUARY 18, i960

WHEREAS, The Atlanta Board of Education has been 
directed to present to the Court by December 1, 1959* a plan 
designated to bring about compliance with the order of the 
Court of July 9* 1959; and

WHEREAS, The Atlanta Board of Education is making 
every effort to provide the Atlanta Public School System with 
the very best buildings, equipment, and other facilities and 
curricula for approximately 116,000 students; and

WHEREAS, The City of Atlanta is undergoing rapid ur­
banization, bringing an influx of children of varying degrees 
of achievement and ability due not only to individual apti­
tude but to educational opportunities heretofore available; 
and

WHEREAS, There is and has been much public construc­
tion in Atlanta, which together with other building has re­
sulted in drastic changes in neighborhood patterns, and these 
changes will be greatly magnified by the proposed slum clear­
ance program involving the vacating of more than 1,200 acres 
of land with the resultant displacement of families, and

WHEREAS, These factors result in not only a contin­
uous influx of new students into the system, but in the con-



Defendants' Plan as Finally Amended 47.

tlnuous movement of students within the system, and also from 
the system Into the suburban areas adjoining Atlanta; and

WHEREAS, The changing neighborhood patterns, the 39 
million dollars worth of new school construction since 1948, 
the great influx of new students, and the continuous move­
ment of students within the system has caused admission, as­
signment, transfer, and continuance of students in and to 
the various schools within the system to become a major prob­
lem of the administration; and

WHEREAS, Pending further studies and recommendations 
by the school authorities, the Board of Education considers 
that any general or arbitrary reallocation of pupils hereto­
fore entered in the public school system according to any 
rigid rule of proximity of residence or in accordance solely 
with requests on behalf of pupils would be disruptive to 
orderly administration, and would tend to invite or induce 
disorganization and would impose an excessive burden on the 
available resources as well as the teaching and adminis­
trative personnel of the schools; and

WHEREAS, in September, i960, there will be a shortage 
of 580 classrooms in Atlanta schools and many children are 
now on double sessions, housed in churches and facilities 
other than classrooms, and the Board realizes that continuous 
system-wide studies must be made to determine available seats 
for students and studies of achievement and ability of the 
students where these seats may exist as well as other factors



Defendants' Plan as Finally Amended 48.

consistent with the educational policies governing the admis­
sion, assignment, transfer, and placement of pupils in the 
public schools as will be prescribed in this document; and

WHEREAS, The State Board of Education has not promul­
gated rules and regulations relative to the placement of 
students in the schools, and this Board has the inherent 
power of pupil placement, and more complete regulations are 
necessary

NOW THEREFORE: To insure orderly procedure of uniform
application for pupil assignment, transfer and/or placement, 
and to enable the continuing improvement of the educational 
advantages offered the following rules and procedure shall 
be followed:
1. In the assignment, transfer or continuance of pupils 

among and within the schools, or within the classroom 
and other facilities thereof, the following factors and 
the effects or results thereof shall be considered, with 
respect to the individual pupil, as well as other rele­
vant matters: Available room and teaching capacity in
the various schools; the availability of transportation 
facilities; the effect of the admission of new pupils 
upon established or proposed academic programs; the 
suitability of established curricula for particular 
pupils; the adequacy of the pupil's academic preparation 
for admission to a particular school and curriculum; the 
scholastic aptitude and relative intelligence or mental



energy or ability of the pupil; the psychological 
qualification of the pupil for the type of teaching 
and associations involved; the possibility of threat or 
friction or disorder among pupils or others; the possi­
bility of breaches of the peace or ill will; the effect 
of admission of the pupil upon the academic progress of 
other students in a particular school or facility there­
of; the effect of admission upon prevailing academic 
standards at a particular school; the psychological 
effect upon the pupil of attendance at a particular 
school; the home environment of the pupil; the mainten­
ance or severance of established social and psycholog­
ical relationships with other pupils and with teachers; 
the choice and interests of the pupil; the ability to 
accept or conform to new and different educational en­
vironment; the morals, conduct, health and personal 
standards of the pupil; the request or consent of 
parents or guardians and the reasons assigned therefor. 
Subject to supervision and review by the Board, the 
City Superintendent of Schools shall have authority 
and be charged with responsibility with respect to the 
assignment (including original and all other admis­
sions to the school system), transfer and continuance 
of pupils among and within all public schools operated 
under the jurisdiction of the Atlanta Board of Educa­

Defendants’ Plan as Finally Amended 49.

tion.



Defendants 1 Plan as Finally Amended 50.

The Superintendent shall have authority to determine the 
particular public school to be attended by each child 
applying for assignment or transfer, and no child shall 
be entitled to be enrolled or entered in a public school 
until he has been assigned thereto by the Superintendent 
or his duly authorized representative. All existing 
school assignments shall continue without change until 
or unless transfers are directed or approved by the 
Superintendent or his duly authorized representative. 
Between May 1st and May 15th applications for the ad­
mission, assignment or transfer, and/or placement of 
pupils to or in particular schools shall be directed to 
the Superintendent of Schools and shall be delivered 
to the school principal unless otherwise directed by 
the Superintendent on forms provided by the Superin­
tendent, and made available at the offices of the Board 
of Education. Such forms shall be delivered only on 
request of and to the applicant student or to his par­
ent or legal guardian in person, by the principal of 
the school then attended by such student or by the 
Superintendent of Schools.
A separate application must be filed by each pupil de­
siring assignment or transfer to a particular school 
and no joint application will be considered.
Applications for assignment or transfer of pupils must 
be filled in completely and legibly in ink or typewriter



Defendants' Plan as Finally Amended 51.

and must be signed by both parents or the parent to 
whom the child has been awarded by court proceedings, 
or the legal guardian of each child for whom application 
is made. Further, the application must be notarized at 
the time it is filed. The Superintendent may in his 
discretion require interviews with the child, the par­
ents or guardian, or other persons and may conduct or 
cause to be conducted such examinations, tests and other 
Investigations as he deems appropriate. In the absence 
of excuse, satisfactory to the Superintendent or the 
Board, failure to appear for any requested examination, 
test or interview by the child or the parents or guardian 
will be deemed a withdrawal of the application.

7. Notice of the action taken by the Superintendent on each 
application shall be mailed to the parents or guardian 
at the address shown on the application, within thirty 
days from the delivery of the application to the school 
principal, in no event later than June 15th. Such ac­
tion shall be final unless a hearing before the Board
is requested in writing within ten days from the date 
of mailing such statement.

8. A parent or guardian of a pupil may file in writing with 
the Atlanta Board of Education objections to the assign­
ment of the pupil to a particular school, or may request 
by petition in writing assignment or transfer to a desig­
nated school or to another school to be designated by



Defendants' Plan as Finally Amended 52.

the Board. Unless a hearing Is requested, or unless the 
Board deems a hearing necessary, the Board shall act 
upon the same within a reasonable time stating its 
conclusion. If a hearing is requested or if the Board 
deems a hearing necessary with respect to the Superin­
tendent's conclusion on an application, the parents or 
guardian will be given at least ten days ' written 
notice of the time and place of the hearing. The hear­
ing will be begun within twenty days from the receipt 
by the Board of the request or the decision by the 
Board that a hearing is necessary. Failure of the parents 
or guardian to appear at the hearing will be deemed a 
withdrawal of the application.
The Board may conduct such hearing or may designate not 
less than three of its members to conduct the same and 
may provide that the decision of the members designated 
or a majority thereof shall be deemed a final decision 
by the Board. The Board of Education may designate one 
or more of its members or one or more competent examin­
ers to conduct any such hearing, take testimony, and 
report the evidence, with its recommendation, to the 
entire Board for its determination within ten days after 
the conclusion of such hearing. In addition to hearing 
such evidence relevant to the individual pupil as may 
be presented on behalf of the petitioner, the Board shall 
be authorized to conduct investigations as to any objec­



Defendants1 Plan as Finally Amended 53

tion or request, including examination of the pupil or 
pupils involved, and may employ such agents and others, 
professional and otherwise, as it may deem necessary for 
the purpose of any investigations and examinations.

10. Unless postponement is requested by the parents or guar­
dian, the Board will notify them of its decision within 
ten days after its receipt of the report of the examiner, 
or the conclusion of any hearing before the Board. Ex­
ceptions to the decision of the Board may be filed, 
within five days of notice of the Board's decision, and 
the Board shall meet promptly to consider the same: Pro­
vided, however, That every appeal shall be finally con­
cluded by the Board before September 1st. Provided fur­
ther that nothing herein contained shall be construed to 
deprive any person dissatisfied with the final decision 
of the Board of the right to appeal to the State Board
of Education as provided by law.

11. If, from an examination of the record made upon objec­
tions filed to the assignment of any pupil to a particu­
lar school, or upon an application on behalf of any pupil 
for assignment to a designated school, or another school 
to be designated by the Board, or from an examination of 
such pupil by the Board or its authorized representative, 
or otherwise, the Board shall determine that any such 
pupil is between his or her seventh and sixteenth birth­
days and is mentally or physically incapacitated to per­



Defendants' Plan as Finally Amended 54.

form school duties, or that any such pupil is more than 
sixteen years of age and is maladjusted or mentally or 
otherwise retarded so as to be incapable of being bene­
fited by further education to the extent that further 
use of public funds for the education of such pupil is 
not justified, the Board may assign the pupil to some 
available vocational or other special school, or ter­
minate the public school enrollment of such pupil alto­
gether.

12. Beginning September 1, i960, or on September 1, follow­
ing favorable action by the General Assembly of Georgia, 
student assignment in the Atlanta Public School System 
shall be made in accordance with aforesaid rules and 
regulations and without regard to race or color. For 
the first school year in which it is effective, the 
plan shall apply to the students in the 12th grade. 
Thereafter, in each successive year, the plan shall be 
expanded to the immediate lower grade; e.g., in 1961-62 
-- Grade 11, in 1962-63 -- Grade 10, etc., until all 
grades are included.

13. Nothing contained in this resolution shall be construed 
to prevent the separation of boys and girls in any school 
or grade, or to prevent the assignment of boys and girls 
to separate schools.

14. If any paragraph of these rules and procedure shall be 
held by any court of competent jurisdiction to be invalid



Defendants* Plan as Finally Amended 55.

for any reason, the remaining paragraphs shall continue 
of full force and effect. If any portion, clause or 
sentence of any paragraph shall be held by any court of 
competent jurisdiction to be invalid for any reason, the 
remainder of any such paragraph shall continue of full 
force and effect.

15. These rules and procedure shall be contingent upon the 
enactment of statutes by the General Assembly of 
Georgia permitting the same to be put into operation, 
and shall be submitted to the General Assembly for 
approval. Counsel are directed to transmit copies to 
the President of the Senate and the Speaker of the 
House of Representatives upon authorization by the 
Court.

* * * * * * * * * *

ORDER OF COURT
(Same Title - Filed Jan, 20, i960)

The defendants on January 19, i960 having filed amend­
ment to the Plan of Operation for Atlanta Public Schools, 
which meets the requirements of previous Orders of the Court, 
said Plan as finally amended is herewith approved by the Court. 

This the 20th day of January, i960.

/S/ FRANK A. HOOPER 
FRANK A. HOOPER 

UNITED STATES DISTRICT JUDGE.



56.

MOTION FOR FURTHER RELIEF 
(Same Title - Filed Feb. 26, i960)

Come now the plaintiffs by their undersigned attor­
neys and move this Court for an order directing defendants 
to commence their court approved pupil assignment plan on 
May 1, i960 and as grounds therefor show the following:

1. By its order of July 9> 1959 this Court retained 
jurisdiction of this cause "for the purpose of entering such 
further orders or granting such further relief as may be 
necessary to bring about compliance with this decree and 
during such time as may be necessary to put into effect the 
defendants' plan."

2. On January 20, i960 this Court approved the de­
fendants' plan as finally amended and which provides, in 
part, as follows:

4. Between May 1st and May 15th applica­
tions for the admission, assignment or trans­
fer, and/or placement of pupils to or in par­
ticular schools shall be directed to the 
Superintendent of Schools and shall be de­
livered to the school principal unless other­wise directed by the Superintendent on forms 
provided by the Superintendent, and made avail­
able at the offices of the Board of Education.
Such forms shall be delivered only on request 
of and to the applicant student or to his par­
ent or legal guardian, in person, by the prin­
cipal of the school then attended by such 
student or by the Superintendent of Schools.
3. Defendants' plan as finally amended was submitted 

to this Court pursuant to the order entered by this Court on



Motion for Further Relief 57.

July 9, 1939 which provided, in part, as follows:
Provided Further That, defendants are 

herewith directed to present to this Court, 
on or before the first day of December, 1959 
a complete plan, adopted by them, which is 
designed to bring about compliance with this 
order, and which shall provide for a prompt and reasonable start toward desegregation of 
the public schools of the City of Atlanta and 
a systematic and effective method for achieving 
such desegregation with all deliberate speed.
Such plan may be submitted contingent upon the 
enactment of statutes permitting such plan to 
be put into operation.
4. Pursuant to said order, on November 30, 1959 de­

fendants filed with this Court their plan which provided, in 
part, as follows:

These rules and procedure shall be con­tingent upon the enactment of statutes by the 
General Assembly of Georgia permitting the 
same to be put into operation, and shall be 
submitted to the General Assembly for approval. 
Counsel are directed to transmit copies to 
the President of the Senate and the Speaker 
of the House of Representatives upon author­ization by the Court.
5. Thereafter, on December 2, 1959 this Court en­

tered an order directing the plaintiffs to show cause on 
December l4, 1959 why the plan should not be approved by 
the Court,

6C Subsequently, on December 12, 1959 plaintiffs 
filed with the Court their objections to the plan which, 
inter alia, made objection to the plan on the following 
ground:

VII. The Plan Cannot Be Made Contingent Upon 
The Enactment Of Statutes By The General 
Assembly Of Georgia Permitting The Same To Be 
Put Into Operation.



Motion for Further Relief 58

7. On December 30, 1959 the Court entered an order 
directing defendants to amend their plan, but the order did 
not direct defendants to amend their plan to eliminate the 
provision, set forth above, which makes the plan contingent 
upon the enactment of statutes by the General Assembly of 
Georgia permitting the same to be put into effect and opera 
tion. However, the Court in its opinion of the same date 
stated the following:

(8) It is contended "the Plan can not 
be made contingent upon the enactment of 
statutes by the General Assembly of Georgia permitting the same to be put into operation."
As to the above objection at the time of the hearing on December l4th the Court sought to 
make full explanation concerning the provisions 
in the Order of this Court entered July 9> 1959 that defendants might submit a plan contingent 
upon its approval by the Georgia Legislature.

At the risk of repetition the Court now 
states that the existence of certain Georgia 
statutes would mean that the mixing of races in any school of the Atlanta School System 
would mean that all financial aid to the same 
from the State would be cut off, and apparently 
without the aid of funds from the State the 
Atlanta School System could not operate, as a 
great portion of the finances for Georgia 
schools is derived from the State.

For the Court to order the Atlanta Public Schools to desegregate would be equivalent 
therefore to ordering them to close. Since the 
Legislature meets in January, i960 and the next 
school term begins in September, i960, there is 
therefore no delay caused by making the plan 
contingent upon the passage of legislation which 
will permit the Atlanta schools to carry through 
their plan without punitive action on the part of 
the State.

As then stated by the Court, it was and is, 
the feeling of the Court that the people of



Motion for Further Relief 59.

Georgia through their chosen representatives 
in the Legislature should be allowed to make 
the important decision as to whether they would 
prefer the closing of their schools on one hand, 
to the gradual desegregation of the schools on 
the other hand, pursuant to the Plan under con­
sideration.
8. Thereafter, on January 6, i960, pursuant to the 

December 30, 1959 order of the Court, the defendants sub­
mitted an amended plan,

9. On January 8, i960 plaintiffs filed objections 
to the plan as amended upon the same grounds on which plain­
tiffs objected to the original plan, except insofar as the 
order of this Court of December 30, 1959 upheld plaintiffs1 
objections, and on additional grounds.

10. On January 18, i960 this Court entered an order 
which required defendants to make further amendments to the 
plan, as amended, but once again this Court did not require 
the defendants to delete from their plan that provision 
which made the plan subject to enactment of statutes by the 
General Assembly of Georgia permitting the plan to go into 
operation. Said order also overruled all of plaintiffs’ 
additional objections to the plan as amended.

11. Thereafter, on January 19, defendants made the 
amendments to the plan required by the Court and on January 
20 the Court approved defendants’ plan as finally amended.

12. The General Assembly of Georgia convened in 
regular session on January 11, i960 and adjourned February 
i960 without enacting any statutes which would permit the



Motion for Further Relief 60

defendants' plan to go into operation and without repealing 
any of the Georgia laws which provide for the withholding of 
state funds or the closing of schools in which the races are 
mixed. Plaintiffs allege on information and belief that the 
only action taken by the General Assembly of Georgia was the 
establishment of a study commission to study the matter and 
to report to the Legislature by May 1, i960.

13. Plaintiffs say that defendants’ plan, as finally 
approved by this Court, cannot be made contingent upon the 
enactment of laws by the General Assembly of Georgia for the 
following reasons:

(1) No law of the State of Georgia, by its terms, 
prohibits the defendants from putting their plan, as approved 
by this Court, into effect.

(2) If the laws authorizing the withholding of 
state funds from defendants and the closing of any school in 
which the races are mixed by defendants are invoked against 
defendants, defendants have ample tested remedies available 
to them,

(3) The Constitution of the United States as 
construed by the Supreme Court of the United States is the 
supreme law of the land and the rights guaranteed thereby 
cannot be made contingent upon approval by the General 
Assembly of Georgia.

WHEREFORE, plaintiffs pray that this Court will enter 
an order directing defendants to proceed with their plan as



Motion for Further Relief 6l

finally approved by this Court beginning May 1, i960. 
Plaintiffs further pray that this Court enter an order 
granting the plaintiffs their costs herein and grant them 
such further, other, additional or alternative relief as 
may appear to this Court to be equitable and just.

Respectfully submitted,

E. E. Moore, Jr.
Suite 201175 Auburn Avenue, N.E. 
Atlanta, Georgia
Constance Baker Motley 
Thurgood Marshall 
Suite 1790 10 Columbus Circle 
New York 19* N. Y.

Attorneys for Plaintiffs
Donald L. Hollowell A. T. Walden

Of Counsel

NOTICE OF MOTION
TO: J. C. Savage, Esq.

B. D. Murphy, Esq.
Newell Edenfield, Esq.Citizens & Southern National Bank Building 
Atlanta, Georgia Attorneys for Defendants

PLEASE TAKE NOTICE that the undersigned attorneys 
for plaintiffs will bring on the foregoing Motion For Further 
Relief before the United States District Court for the North­
ern District of Georgia, Atlanta Division, United States Post 
Office Building, Atlanta, Georgia, on the day of March,



Motion for Further Relief 62

i960 at 10:00 o'clock A.M., or as soon thereafter as counsel 
can be heard.

E. E. Moore, Jr.
Suite 201
175 Auburn Avenue, N.E. 
Atlanta, Georgia

Constance Baker Motley 
Thurgood Marshall 
Suite 1790 10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs
Donald L. Hollowell A. T. Walden

Of Counsel

[This instrument carries proper certificate 
of service not reproduced here.]



63.

ORDER OF COURT
(Same Title - Filed March 9, i960)

On February 26, i960 Plaintiffs filed with this Court 
a motion reciting in substance the following:

That this Court on January 20, i960 approved a Plan 
as amended, submitted by the Atlanta Board of Education, pro­
viding for elimination of discrimination in the operation of 
its schools and providing that applications for assignment 
and transfer should be filed with the Atlanta school author­
ities between May 1st and May 15th of each year, but that 
approval of such Plan was made contingent upon action of the 
Georgia Legislature permitting the same to be put in effect.

The motion points out that the Legislature met in 
January, but adjourned without enacting any laws permitting 
such Plan to be put in effect, but that the Legislature did 
pass a resolution appointing a Commission to study the en­
tire question and to file a report on or before May 1, i960.

Plaintiffs' present motion prays "that this Court 
will enter an Order directing Defendants to proceed with 
their Plan as finally approved by this Court beginning May 1, 
i960." A response filed by Defendants pursuant to Order of 
the Court points out that the General Assembly of Georgia 
did adopt a resolution creating a "General Assembly Committee 
on Schools", a copy of the resolution being attached to the 
motion and also a list of the nineteen members of the Commit­



Order of Court 64

tee, giving as to each the official positions occupied by 
each member, and other information concerning each.

The Court agrees with the statement made in the re­
sponse to said motion "that the members of the Committee, 
some or all of whom may be known to the Court, are all 
reputable, high-class citizens of the State of Georgia" and 
that Respondents have every reason to believe that they are 
approaching the problems presented by the Order of this 
Court and the Plan adopted by Respondents in good faith," 
and that "the Committee is now engaged in conducting hear­
ings" and that "hearings will be conducted in every Congres­
sional District of the State.

The Court also accepts as true the statement made in 
the response "that until the General Assembly Committee on 
Schools provided for by resolution of the General Assembly 
completes its hearings and makes its report and recommenda­
tions, it cannot be determined what action by the General 
Assembly will be recommended by the Committee, and until the 
General Assembly considers such recommendation, it cannot be 
determined what final action will be taken thereon by the 
General Assembly, or what final action will be taken by the 
General Assembly upon the Plan submitted to the Court, and 
with the approval of the Court submitted to the General As­
sembly. "

This Court during the progress of this case has re­
peatedly made the statement that the Court would not commit



Order of Court 65.

itself as to what action the Court would take beyond the 
date of adjournment of the session of the Legislature which 
convened in January, i960. The adjournment of the Legis­
lature without taking affirmative action toward permitting 
the Atlanta Board of Education to put its Plan in effect 
does not come as any great surprise to all of our citizens 
who are familiar with campaign promises heretofore made by 
members of the General Assembly and familiar with the gen­
eral misconceptions in the minds of perhaps a majority of 
the people of this State concerning the real questions at 
issue, and concerning the gravity of the decision which the 
Legislature is called upon to make.

However, failure of the Legislature to take such 
definite action at its recent session does not close the 
door necessarily to institution of Respondents' Plan, 
whether effective September, i960 or September, 1961. The 
legislative Committee will make its report on May 1, i960. 
Under the Respondents' Plan, applications for assignment or 
transfer may be made between those dates.

However, the Court is reserving its decision upon 
the question as to whether such Atlanta Plan shall commence 
in the school year i960 or at a later date, pending the re­
port to be filed by said legislative Committee on May 1st.

The Court therefore, is denying said motion by Plain­
tiffs for an Order at this time directing said Plan to begin 
in September, i960, and is setting said motion for a hearing



Order of Court

at ten o’clock A.M. on Monday, May 9, I960, at which time 
the Court will consider the report of said legislative Com­
mittee and any other matters that may then be brought to the 
attention of the Court, and will then determine the question 
as to the date on which said Atlanta Plan must become oper­
ative .

If the Plan is ordered operative as of September, 
i960 as prayed by Plaintiffs in this motion, it will not be 
too late, as applications for assignment and transfer not 
only could have been filed prior to that date, but could be 
filed for several days subsequent to that date and prior to 
May 15th. Reception of such applications by the Atlanta 
Board of Education would not be a violation of any Georgia 
law, nor a commitment upon their part that the Plan would 
begin in September, i960.

This Court on many occasions during the progress of 
this case has remarked that the decisions of the United 
States Supreme Court must be carried out by the Courts, also 
that deliberation in carrying out the same is just as im­
portant as speed, and that no good purpose can be served by 
a District Judge in delaying the enforcement of the Supreme 
Court decisions, unless during such periods of delay good 
faith efforts are being made by defendants in the case to 
work out a solution to the many difficult problems therein 
involved, too well known to require elaboration.

This Court at the present time is not utterly without

66.



Order of Court 67.

hope that the people of Georgia, when properly and adequately 
Informed of the true Issues In the matter, will adopt a 
course of action which will preserve the common schools of 
Georgia and avoid a closing of the same, which might bring 
on a disruption and damage requiring many years to repair.

This Court also takes judicial cognizance of the 
fact that while the legislative Committee has only held a 
few public meetings, that such meetings are giving to the 
people of this State an opportunity of full and free dis­
cussion, participated in by people of all races, colors, and 
schools of thought. The meetings are also conducive to a 
better understanding upon the part of all of the citizens 
of Georgia of the real issues involved, and will better 
enable the citizens of this State to determine whether in 
the last analysis they would prefer to let the various local 
school authorities and the local citizens vitally interested 
therein decide for themselves the future conduct of such 
schools, or whether on the other hand, the citizens of our 
State through their chosen representatives in the Legis­
lature would prefer to take the position that the elimina­
tion of discrimination will not be permitted in any school 
whatsoever, even though such disposition might eventuate in 
the closing of all schools.

In denying the prayers of the Plaintiffs’ motion at 
the present time this Court is giving to movants a certifi­
cate as provided by Act of Congress to enable movants to take



Order of Court 68.

an appeal to the Circuit Court of Appeals upon any phases 
of this case as desired, Including the previous Order of 
this Court which approved the Atlanta School Plan, and in­
cluding the present denial by the Court of Plaintiffs’ 
motion to put the same into effect as of September, i960 
by an Order passed at this time, rather than deferring such 
decision until the hearing set by this Court May 9, i960, 
as aforesaid.

This the 9th day of March, i960.

/S/ FRANK A. HOOPER________PRANK A, HOOPER 
UNITED STATES DISTRICT JUDGE.

* * * * * * * * * *

ORDER OF COURT
(Same Title - Filed May 9, i960)

The above stated case has come on for a hearing on 
this date upon the Order of the Court entered March 9, i960 
upon plaintiff's Motion for Further Relief filed February 
26, i960. Said Motion for Further Relief sought an Order 
of the Court making effective the Plan of Operation of the 
Atlanta Public School System as of the school term beginning 
in September, i960. The Court withheld action upon said 
Motion for Further Relief pending the filing of a report by 
the General Assembly Committee on Schools.



Order of Court 69.

IT IS NOW ORDERED that the Motion for Further Relief, 
in so far as it seeks to put said Plan into operation as of 
September, i960, be and the same is hereby denied.

IT IS FURTHER ORDERED however, that the Motion for 
Further Relief be granted to the effect that said Plan shall 
be effective as of May 1, 1961 looking toward the operation 
of the school system for the session beginning in September, 
1961.

Said Plan, however, which contemplates the assign­
ment, transfer or continuance of pupils must contemplate 
the same as to both the twelfth and the eleventh grades 
beginning September, 1961.

The effect of this Order is that defendants shall as 
of May 1, 1961 put into operation the Plan heretofore ap­
proved by this Court, receiving applications from May 1st to 
May 15th to the twelfth and the eleventh grades of the 
Atlanta Public Schools, and shall do so whether or not the 
General Assembly of Georgia at its session in January, 1961 
passes legislation permitting defendants to put said Plan 
into operation.

An Opinion will be filed pursuant to this Order at 
a later date.

This the 9th day of May, i960.

/S/ FRANK A. HOOPERFRANK A. HOOPER 
UNITED STATES DISTRICT JUDGE.



70.

OPINION ON PLAINTIFFS' MOTION FOR FURTHER RELIEF 
(Same Title - Filed Sept. 13, i960)

On February 26, i960 plaintiffs filed a motion, seek­
ing to require defendants to put into operation the Plan 
heretofore approved by this Court under which the public 
schools of the City of Atlanta might operate without dis­
crimination. Plaintiffs pray that the Plan become effective 
in September, i960. This Court on May 9, i960 denied such 
prayers, but decreed that the Plan should be effective in 
September, 1961.

At the time of hearing the aforesaid motion the Court 
made a full explanation of the reasons for the year's delay, 
stating that such remarks would be edited and filed of record 
subsequently. This Opinion performs that function.

(1) HISTORY OF THIS LITIGATION.
When this action was filed the people of Georgia did 

not seem to consider that it created any immediate threat to 
Georgia's common schools. The Judges of this Court in the 
Fall of 1958 passed an Order advising the case would be tried 
before September, 1959. Not until that time did the people 
begin to realize that something must be done. Meetings were 
held and various organizations formed to meet the problem.

In June, 1959 this Court declared that segregation 
existed, that it must be terminated, and that the defendant 
Board of Education should file a Plan toward that end by



Opinion on Plaintiffs' Motion 71.

December, 1959, which was done. After various objections 
were considered the Plan was approved in its final form on 
January 18, i960.

The Court at that time declined to order the Plan 
effective in September, i960, reserving such ruling until a 
Commission, appointed by the Georgia Legislature, in January, 
i960, should have an opportunity to make its report, the re­
port being due May 1, i960. The report was filed on that 
date and pursuant to previous Order of this Court a hearing 
was held May 9> i960. At that time the Plan was ordered to 
commence in September, 1961, for reasons hereinafter set 
forth.

(2) Throughout this litigation the Court has held 
to the opinion that delay in ordering the entire elimination 
of segregation in the Atlanta Public Schools could be justi­
fied only in the event that bona fide efforts were being 
made to eliminate the same under a reasonable and gradual 
Plan. If no good faith efforts were to be made to that end 
nothing could be accomplished by delay.

The Georgia Legislature in January, i960 did not 
enact legislation which would allow the Atlanta Public Schools 
to commence operation under the aforesaid Plan, but left the 
matter in such status that, under the Georgia laws as they 
existed, the operation of such Plan in September, i960 would 
have meant the closing of the Atlanta Public Schools, with 
the possible further consequence that all of Georgia's common



Opinion on Plaintiffs* Motion 72.

schools must be closed.
The Legislature at that session, however, did ap­

point a committee of outstanding Georgians to study the 
matter and report back May 1, i960. Some might have thought 
that the failure of the Legislature in January, i960 to 
pass laws permitting operation of the Atlanta Plan should 
have induced the Court to order the Plan into effect anyway 
in September, i960. The Court, however, did not agree. In 
the first place, such Order of Court could have no effect 
except to close the Atlanta schools and risk the danger of 
all of Georgia's schools being closed. In the second place, 
the Georgia Legislature in January, i960 had for the most 
part been elected upon their promises to the people that 
they would not under any circumstances permit any integra­
tion in any school in Georgia, and they felt bound by these 
promises.

(3) Some may think that the appointment of the 
Study Commission by the Legislature had no other purpose 
than to obtain a year's delay. As to that this Court cannot 
say. However, the Court thinks the appointment of the Com­
mission was a wise step and that much progress has resulted 
therefrom. Hearings were held in every Congressional Dis­
trict in Georgia, many witnesses were heard, and the pur­
poses of the study and the situation faced by Georgia, were 
carefully explained to the people of Georgia by the able 
chairman of the Commission, Honorable John A. Sibley, an



Opinion on Plaintiffs' Motion 73.

outstanding attorney and banker of this state. It was re­
ported that numerically three out of five of the witnesses 
favored maintaining segregation, even though it might result 
in abolishing the Georgia public school system. That fact 
alone, however, shows a decided shift in public opinion in 
Georgia. This Court is confident that, except for the edu­
cation of the people by such Commission, the vote would have 
been overwhelmingly against any integration, whatever the 
consequences.

This Court on May 9, i960 therefore, had the feeling 
that the best interests of Georgia would be served by per­
mitting a new legislature to be elected, with full knowledge 
by most of our people as to the real issues involved, and 
the possible disastrous consequences which could flow from 
the failure of the Georgia Legislature to permit the Atlanta 
Plan to become effective.

(4) It now seems clear that the people of Atlanta 
and Fulton County would prefer to have said Plan put into 
operation, than to have Atlanta’s schools closed. It is 
quite evident that many other populous centers in Georgia 
have the same feeling. This feeling is not shared by citi­
zens living in the rural areas for two reasons. First, they 
do not have the residential patterns that exist in the 
cities, which patterns as formerly pointed out by this Court, 
would result in the schools located in the white areas being 
practically all white and those located in negro areas to



Opinion on Plaintiffs' Motion 74.

consist almost altogether, if not totally, of negroes. Such 
a situation, coupled with a Pupil Assignment Plan on appli­
cation of the students, would cause little mixing. The 
residential patterns in the country, however, would not give 
this advantage. Second, the people in our rural areas have 
the feeling that if any integration is permitted in Atlanta, 
or other city in Georgia, it will be but a beginning which 
will in time spread to their areas.

The danger which Georgia faces in the event that 
representatives of the rural communities will not permit the 
Atlanta Plan to become operative, is clearly and forcefully 
brought out by the report of the Legislative Committee, some­
times called the Sibley Committee in honor of its distin­
guished chairman. The report pointed out that under a 
similar situation in Virginia a three-judge court ruled that 
"no one public school or grade in Virginia may be closed to 
avoid the effect of the law of the land, as interpreted by 
the Supreme Court, while the state permits other public
schools or grades to remain open at the expense of the tax-

1/payers." See James vs. Almond, 170 F.S., 331.

1/ On August 27, i960 a three-judge Federal Court in New Or­
leans, in the case of Bush vs. Orleans Parish School Board, 
et al, declared invalid a Louisiana statute which gave the 
Governor the right to close any school in the state ordered to integrate. The Court also enjoined the Treasurer of the 
State and all persons acting in concert with him from en­
forcing any Louisiana statute which would deny school funds 
of any kind to any public school in the State of Louisiana 
because such school has been desegregated.



Opinion on Plaintiffs' Motion 75.

(5) This Legislative Committee recommended five 
specific statutes or resolutions to be passed by the General 
Assembly in 1961. Recommendation No. 1 and Recommendation 
No. 2 pertain to constitutional amendments, which if pro­
posed to the people in January, 1961 cannot be voted upon 
until the general election in November, 1962, after the 
schools have commenced in September.

Recommendation No. 5 however, reads as follows:
"That the General Assembly consider whether, in 
view of the urgency created by the Atlanta case 
and other cases which may be brought, it will propose to close the public schools in order to 
maintain total segregation throughout the state 
or whether it will choose a course designed to 
keep the schools open with as much freedom of 
choice to each parent and community as possible; 
and, if it chooses the latter course, that it 
enact legislation enabling each school board 
or other local body to establish a pupil assign­
ment plan; empowering the people of each com­
munity to vote whether to close their schools 
in the event of integration or to continue the 
operation of said schools; and enabling each 
parent to withdraw his child from an integrated 
school and have the child reassigned to a segre­
gated school or receive a tuition grant or 
scholarship for private education."
That portion of Recommendation No. 5 suggesting

legislation permitting the people of each community to elect
as to whether they adopt a Pupil Assignment Plan, or whether
they close their schools, is worthy of careful study. That
is to say, should the Legislature permit Atlanta to put into
effect in September, 1961 the proposed Plan, the State of
Georgia would free itself of the danger which it faces, to-
wit, that the closing of the Atlanta schools in September,



Opinion on Plaintiffs’ Motion 76.

1961 would, under application of the principles of law in 
the Virginia case set forth above, result in the closing of 
all the public schools in Georgia.

(6) The majority vote of the Legislative Committee 
makes it clear that the majority of the Committee are opposed 
to any integration, but they hold the conviction that, since 
integration is inevitable, it is better to allow each com­
munity of the state to decide for itself whether to risk the 
closing of its schools. The majority report is made by men 
having the best interests of Georgia’s common school system 
at heart, and includes the Chancellor of the University 
System and the Superintendent of Schools of Georgia. It 
also includes the Chairman of the Board of Regents of Georgia, 
and other outstanding Georgians.

(7) This Court wishes to make it clear that the 
Court has no desire to meddle into the affairs of the Georgia 
Legislature or the State of Georgia, but is making a sincere 
effort to enable the people of Georgia and its legislature to 
make a decision in this matter, if they so desire, that will 
prevent the closing of the schools of Georgia. This is a 
matter of grave concern to the people of Georgia and in par­
ticular, to the parents having children of school age but not 
having sufficient funds with which to provide a private school
for their children.

This the 8th day of September, i960.
/S/ PRANK A. HOOPER PRANK A. HOOPER 
UNITED STATES DISTRICT JUDGE.



77.

MOTION FOR FURTHER RELIEF 
(Same Title - Filed April 30, 1962)

Plaintiffs, by their undersigned attorneys, move this 
court for further relief in the form of an order enjoining 
defendants from continuing to maintain and operate a segre­
gated biracial school system in the City of Atlanta, Georgia; 
specifically enjoining defendants from continuing to assign 
pupils to the public schools under their jurisdiction on the 
basis of race and color; and from continuing to assign 
teachers, principals, and other professional school person­
nel to the city's public schools on the basis of race and 
color; and from continuing to designate schools as "Negro" 
or "white" schools; and from continuing to support, approve 
or sanction racially segregated extra-curricula school ac­
tivities; and from continuing to maintain a dual system of 
school attendance area lines based on race and color; and 
from making any other distinctions in the operation of the 
public school system in Atlanta which are based on race and 
color.

As grounds for this motion plaintiffs show the fol­
lowing:

1. This action was originally filed on January 11, 
1958 by the named plaintiffs on behalf of themselves and 
other Negroes in the public school system similarly situated.

2. The gravamen of the complaint is that the defend-



Motion for Further Relief 78.

ants are "operating the public school system of Atlanta, 
Georgia on a racially segregated basis, pursuant to the 
policy, custom, usage, regulations and laws of the State of 
Georgia of enforcing racial segregation in public institu­
tions." The complaint specifically alleged that pursuant 
to the policy, custom and usage complained of, "Defendants 
have designated certain schools in the public school system 
of Atlanta, Georgia as schools for the exclusive attendance 
of white children and other schools for the exclusive at­
tendance of Negro children. Schools for the exclusive at­
tendance of white children are staffed by white teachers, 
principals and administrative personnel only. Schools for 
the exclusive attendance of Negro children are staffed by 
Negro teachers, principals and administrative personnel only."

3. The relief sought in this action was a prelim­
inary and permanent injunction enjoining defendants from 
"operating the public school system of Atlanta, Georgia on 
a racially segregated basis and enjoining the defendants 
from refusing to permit the minor plaintiffs to attend any 
public school in the City of Atlanta, Georgia, which they 
are otherwise qualified to attend, solely because of their 
race and color."

k. On July 9, 1959* after a full trial on the merits 
which took place on June 5* 1959* defendants were enjoined 
from "Enforcing and pursuing the policy, practice, custom and 
usage of requiring or permitting racial segregation in the



Motion for Further Relief 79.

operation of the public schools of the City of Atlanta, and 
from engaging in any and all action which limits or affects 
admission to, attendance in, or education of, infant plain­
tiffs, or any other Negro children similarly situated, in 
schools under defendants' jurisdiction, on the basis of 
race or color." However, defendants were allowed a reason­
able period of time "to achieve full compliance with this 
Order and for bringing about a transition to a school system 
not operated on the basis of race."

5. Accordingly, defendants were directed to "pre­
sent to this court on or before the 1st of December 1959, a 
complete plan adopted by them designed to bring about com­
pliance with the Order and which would provide for a prompt 
and reasonable start toward desegregation of the public 
schools of the City of Atlanta and a systematic and effec­
tive method for achieving such desegregation with all de­
liberate speed."

6. Thereafter, on January 20, i960, this court ap­
proved defendants * amended plan of desegregation which, in 
essence, provided for the elimination of segregation a grade 
a year beginning with the 12th grade and the reassignment of 
students to schools in the grade desegregated each year pur­
suant to a number of criteria set forth in the plan and ap­
proved by this court.

7. On February 26, i960 plaintiffs moved this court 
for an order directing defendants to proceed with their plan



Motion for Further Relief 80.

as finally approved beginning May 1, i960 in order that 
such plan may become effective beginning with the school 
year in September i960.

8. On May 9, i960 this court entered an order de­
nying the plaintiffs’ motion with respect to the September
1960 term but granting same with respect to the September
1961 school year and providing that desegregation commence 
in grades 12 and 11 of said school year.

9. On September 13, i960 this court rendered an 
opinion on plaintiffs' motion setting forth its reasons for 
denying same with respect to the September i960 school year 
and granting same with respect to the September 1961 school 
year.

10. Thereafter, approximately nine Negro children 
were assigned to the eleventh or twelfth grade in schools 
previously limited to attendance by white pupils for the 
September 1961 school year.

11. All other eleventh and twelfth grade pupils and 
all other pupils were assigned to schools on the basis of 
race.

12. The nine Negro children and approximately 75 
other Negro pupils had applied in May 1961 for reassignment 
to schools previously limited to white students. These ap­
plicants were subjected to tests not applied to the white 
eleventh and twelfth grade students already attending the 
schools to which transfers were sought and not applied to



Motion for Further Relief 81.

any other eleventh or twelfth grade students assigned to 
schools in the City of Atlanta as required by the plan ap­
proved by this court.

13. Contrary to the Supreme Court's decision in 
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 
defendants have continued to maintain and operate a racially 
segregated school system in the City of Atlanta. Specific­
ally, defendants have continued to maintain a separate sys­
tem of elementary, junior high and senior high schools 
limited to attendance by white students. Defendants have 
continued to staff these schools with white teachers, white 
principals and other professional personnel who are white. 
Defendants also have continued to maintain and operate a 
separate system of schools for the attendance of Negro 
children and have continued to assign only teachers, prin­
cipals and other professional personnel who are Negro to 
these schools. Defendants have continued to assign pupils 
to school on the basis of race in the 10th, 11th, and 12th 
grades and have continued to maintain and enforce a dual 
scheme of school zone lines based on race. Defendants have 
continued to designate and construct schools for Negro pupils 
and schools for white pupils. Defendants have also continued 
to operate, support, sanction or sponsor extracurricula school 
activities limited to one race. In short, defendants have 
not taken steps to reorganize the biracial school system in 
Atlanta into a unitary non-racial system as required by the



Motion for Further Relief 82.

Supreme Court decision in the Brown case, supra.
14. The assignment of children to school on the 

basis of race in grades 10, 11 and 12 as well as all other 
grades is presently effected by defendants through the draw­
ing and enforcing of school zone lines based on race. The 
criteria of the plan approved by this court are applied 
only to Negro pupils seeking reassignment to white schools. 
When Negro pupils are unable to attend the nearest Negro 
school because of overcrowding or because there is no Negro 
school in the area, these children are transported to a 
Negro school where space is available, many of them passing 
white schools in the process.

15. The plan of desegregation proposed by defendants 
in this case and approved by this Court has not been used by 
defendants to bring about desegregation in the public schools 
of Atlanta, but, on the contrary, has been used to maintain 
segregation.

16. The administrative remedy afforded an aggrieved 
applicant for transfer under the plan has proved to be in­
adequate to grant relief to the applicant in time for ad­
mission to the school to which he seeks transfer for the 
school year in which he applied. The remedy afforded is 
clearly inadequate to grant the relief to which the plain­
tiffs are clearly entitled under the Brown decision and sub­
sequent decisions of the federal courts.

WHEREFORE, plaintiffs pray that this court will grant



Motion for Further Relief 83.

a prompt hearing of this motion for further relief and upon 
such hearing will:

1) enter an order enjoining defendants from continu­
ing to maintain and operate a segregated biracial school 
system in the City of Atlanta, specifically enjoining de­
fendants from maintaining and operating "white" and "Negro" 
schools, and from assigning pupils to schools on the basis
of race, and from assigning teachers to schools on the basis 
of race, and from designating and constructing "Negro" and 
"white" schools, and from maintaining a dual scheme or pat­
tern of school zone lines based on race, and from supporting, 
approving, or sanctioning extracurricula school activities 
limited to one race or the other, and from continuing to 
make any other distinctions in the operation of the public 
school system of the City of Atlanta which are based wholly 
on race and color;

2) in the alternative, plaintiffs pray that this 
court require defendants to come forward with a complete 
plan for the reorganization of the entire biracial school 
system of Atlanta, Georgia, into a unitary non-racial system, 
which plan shall include a new plan for the assignment of 
pupils on a non-racial basis and a plan for the assignment
of teachers on a non-racial basis, for the construction of 
schools on a non-racial basis, for the drawing of school zone 
lines on a non-racial basis, for reorganization of extra­
curricula school activities on a non-racial basis, and for



Motion for Further Relief 84.

the elimination of any other discriminations in the opera­
tion of the schools of Atlanta, Georgia based on race and 
color.

E. E. Moore, Jr.
Suite 201175 Auburn Avenue, N.E. 
Atlanta, Georgia
Donald L. Hollowell859 1/2 Hunter Street, N. W.
Atlanta, Georgia

Constance Baker Motley 
Jack Greenberg 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs
A. T. Walden 

Of Counsel

[This document carries proper certificate of 
service not reproduced here.]

* * * * * * * * * *

NOTICE OF MOTION 
(Same Title)

TO: B. D. Murphy, Esq.
PLEASE TAKE NOTICE that the undersigned attorneys 

for plaintiffs will bring on the attached Motion for Further 
Relief before the United States District Court for the 
Northern District of Georgia, Atlanta Division, on the 28th



Notice of Motion 85.

day of May, 1962 at 9:30 A.M. in the forenoon of said day, 
or as soon thereafter as counsel can be heard.

E. E. Moore, Jr.
Suite 201175 Auburn Avenue, N. E. 
Atlanta, Georgia

Constance Baker Motley 
Jack Greenberg 
Suite 1790 10 Columbus Circle 
New York 19* New York

* * * * * * * * * *

DEPOSITION OF JOHN WALTER LETSON 
(Same Title)

Deposition of JOHN WALTER LETSON, called as 
an opposite party by plaintiffs for purposes of 
cross-examination, taken pursuant to agreement of 
counsel, all formalities waived, before B. L. 
Pickett, Notary Public, at 1601 Bank of Georgia 
Building, Atlanta, Georgia, commencing at 11:10 
a.m., on May 21, 1962.

APPEARANCES OF COUNSEL:
For the Plaintiffs: E. E. MOORE, Esq. and

MISS CONSTANCE BAKER MOTLEY



Deposition of John Walter Letson 86.

For the Defendants: NEWELL EDENFIELD andA. C. LATIMER, Esqs., of counsel.
MISS MOTLEY: I suppose we ought to have the record in­

dicate that the deposition of Dr. Letson is taken on this 
date more or less pursuant to agreement. I think we had 
originally set it for the l6th of May.

JOHN WALTER LETSON,
being first duly sworn, deposed and testified as follows:

CROSS-EXAMINATION
Q (By Miss Motley) Dr, Letson, do you want to state
your full name, please.
A John Walter Letson.
Q And your position?
A Superintendent of Schools.
Q How long have you been Superintendent of Schools here
in Atlanta?
A It will be two years the 1st of July.
Q That was prior to the actual implementation of the
court-approved plan of desegregation, was it not?
A Yes.
Q, Do you know offhand how many students you now have
enrolled in the entire school system?
A Approximately 100,000.
Q, Do you have any Idea what percentage of those students
are Negro?
A We don’t keep our records that way, but It is approxi­
mately 45 per cent.



Deposition of John Walter Letson 87

Q How many elementary schools would you say you have, 
approximately, in the city?
A 115.
Q How many junior high schools?
A None.
Q You don't have any junior high schools?
A None.
Q, How many high schools do you have?
A 24.
Q Now, of the 115 elementary schools, approximately how 
many would you say are Negro?
A I don't even know without counting.
Q Well, would it be about 45 per cent, would you say?
A Roughly.
Q Now, of the 24 high schools, how many of those would 
you say are Negro?
A I don't think you can divide them that way.
Q Why not?
A Well, how would you classify the schools that have
Negro students?
Q, I don't know, how do you classify them?
A We classify them as schools.
Q, Well, how many high schools do you have which are 
attended only by white students, would you say, offhand?
A About 14.
Q, How many would you say are attended only by Negro



Deposition of John Walter Letson 88.

students?
A Six.
Q How many white high schools would you say have Negro
students?
A Pour formerly white.
Q Now, how many teachers would you say you have all told
in the system?
A 3500. These are approximate figures.
Q Yes, of course, I understand. We can get the actual 
figures later. I don’t know as it makes too much difference.

Approximately how many of those 3500 teachers would 
you say are Negro?
A Approximately 45 per cent.
Q Now, you say you became the superintendent in July,
i960, is that right?
A Right.
Q, All right, and in September, i960 how were these ele­
mentary schoolchildren assigned to the 115 elementary 
schools?
A On the basis of their previous attendance.
Q You mean students already enrolled were reassigned?
A Yes.
Q What about new students?
A They were assigned on the basis of the area in which
they lived in relation to the attendance of their neighbors. 
Q In other words, you have --



Deposition of John Walter Letson 89

A Now, you are talking about '60 or *6l. You said r60.
Q I am sorry. I thought you said you became superlnten-
dent July, i960.
A I did.
Q Well, this is September, i960. That is after you be-
came superintendent?
A Yes.
Q Right?
A Yes.
Q. All right, and I am trying to determine how elementary
schoolchildren were assigned to the 115 elementary schools 
in September, i960.
A Pupils who had attended a school previously were as­
signed to the same school. Those who were beginning students 
were assigned to the same school attended by their neighbors. 
Q, Now, how were these new students able to determine the 
school to which they might go? That is, did they just ask 
their neighbors or did they inquire of the Board or what?
A Some of both.
Q, Some of both?
A Yes, but in general it was automatic on the basis of
their understanding. They had brothers and sisters in the 
area in which they lived.
Q Do you have any school attendance area lines for each 
of these elementary schools?
A Not official attendance lines. There are administrat­



Deposition of John Walter Letson 90.

ive lines drawn by individual schools on occasion to equal­
ize the load in various schools.
Q And by whom are these administrative lines drawn?
A By the area superintendent in cooperation with the 
school officials, local school officials.
Q, And these lines serve to delineate the area for par­
ticular elementary schools?
A Yes, to the degree that it is necessary to balance one 
school’s attendance.
Q Now, in the areas where the housing is mixed racially, 
that is, the areas where Negroes and whites live in the same 
area, these lines would overlap, so to speak, wouldn't they? 
A Well, formerly they were drawn separately for white 
and Negro schools.
Q And how are they drawn now?
A They are drawn on the basis of the Pupil Placement Law 
under which we are operating. There has been no change in 
the elementary situation.
Q, Now, you say the lines are drawn now pursuant to the
Pupil Placement Laws. Is that a state law or is that the 
plan?
A That is the plan.
Q, And you say the lines are drawn pursuant to that?
A The same lines that were in existence in i960 are in
existence at the present time.
Q, I see.



Deposition of John Walter Letson 91.

A With variations that have been made. There have been no 
specific change in those lines.
Q And you still have separate lines which relate to the 
Negro schools and separate lines which would relate to the 
white elementary schools; is that right?
A Roughly, yes.
Q Okay. Now, you say you don't have any junior high 
school system?
A We have no junior high schools.
Q, Your elementary schools go from grades 1 through 8?
A Through seven.
Q, One through seven?
A Yes.
Q, And high school is grade 8 through 12?
A Right.
Q Now, how are children assigned to the 24 high schools,
or how were they assigned to the 24 high schools in Septem­
ber, i960, that is, right after you became superintendent?
A On the basis that I previously said. The school that 
they attended, the school that they formerly attended, and 
new students in relation to the same arrangement as their 
neighbors.
Q In other words, those who are already enrolled in the 
high schools were reassigned to the high schools?
A Right.
Q, Now, what about those who were graduating from elemen­



Deposition of John Walter Letson 92.

tary school, how did they get assigned to a high school?
A Roughly on the basis of the high school that had tradi­
tionally served that elementary school.
Q You have sort of a feeder system where certain elemen­
tary schools would feed into certain high schools?
A Yes.
Q And, of course, the Negro elementary schools would feed 
into one of these six Negro high schools?
A Yes.
Q. And the white elementary schools would feed into one 
of these eighteen white or formerly white high schools?
A Right.
Q Is that the way these high school students are now 
assigned to the schools?
A The same way, except they are subject to transfer upon 
request.
Q Now, I believe it was September, 1961 when the plan of 
desegregation approved by the Court went into effect; isn*t 
that right?
A Right.
Q. And that plan, as I recall, related to grades 11 and 12?
A Correct.
Q, Now, how were children assigned to Grades 11 and 12 in 
September, 1961 when the plan went into effect?
A They were assigned to the school that they had formerly
attended and told that if they wished, they could request a



Deposition of John Walter Letson 93.

transfer from that assignment.
Q All right. Who told them that they could request a 
transfer?
A Well, it was basically a part of the plan under which we 
were operating, copies of which were widely distributed.
Q Did you send any written communication to the parents of 
children in grades 11 and 12 in September, 1961?
A Not on this particular point, no.
Q Did you put any announcement in the paper to the effect
that students in grades 11 and 12 might apply for transfer?
A Well, there was considerable publicity about it and it
was wide understanding that that was the case. It had been 
announced officially on several occasions; orally, I don't 
think It was sent out In a written notice.
Q, Well, let me ask you this, whether you as a superin­
tendent sent to the local newspapers something which you 
prepared in the form of an announcement to the parents of 
children in grades 11 and 12, they had the right to trans­
fer?
A There was an official action by the Board of Education 
that was made public.
Q Well, I will get to the Board In a minute. I was try­
ing to clarify whether the superintendent had sent any such 
notice.
A I don't think there was a formal announcement to that 
effect, but there was certainly no lack of complete under­



Deposition of John Walter Letson 94

standing on the part of school personnel and others that 
that was the case.
Q, Now, you say you think the Board made a formal announce­
ment of this fact in September, 1961 that students enrolled 
in grades 11 and 12 might transfer?
A Not in September. The Board of Education established 
the implementation of the plan by official action previous 
to May 1st of 1961.
Q Well, prior to May 1st, 1961 do you recall the Board 
making any written communication to be published on the 
radio, in the papers, television, to the fact that people 
in grades 11 and 12 might transfer?
A Yes, the plan was available to the radio and newspaper.
Q What I am trying to get at, Dr. Letson, is whether a 
written statement of some kind was prepared by the Board 
setting forth these facts that students in grades 11 and 12 
might apply for transfers. What I would like to get, if you 
had some such statement, I would like to get a copy of it.
Do you have something which the Board prepared for public 
consumption announcing this fact?
A This fact was included in an action by the Board to 
setting up additional facts relating to the implementation 
of this plan, and it was made available to the public and to 
anyone else of interest.
Q Do you still have copies of that?
A Yes. I don't think I have them with me.



Deposition of John Walter Letson 95

Q, No, I understand.
A But I have copies available.
Q I was just trying to determine what there is available.
A Yes, there are copies available.
Q All right, now, prior to May, 1961 did you meet with
the principals of the high schools on this desegregation 
plan?
A Many times.
Q, Did you meet with the teachers?
A Yes, not all the teachers. It was discussed in a tele­
vision presentation over our educational television, and it 
was discussed at a general principals meeting, both white 
and colored.
Q, Now, in May, 1961 when the pupils desiring to transfer 
were required to make application for same, do you recall 
how many students applied for transfer in grades 11 and 12 
at that time?
A Approximately 300 requested applications and approxi­
mately 130 actually turned them in.
Q Were these Negro and white students, the 300?
A Yes.
Q And 130 were turned in?
A Yes.
Q How many of these 130 were Negro and how many white?
A 129 Negro and one white.
Q Do you have the request for transfer forms of these 130



Deposition of John Walter Letson 96.

students?
A Yes.
Q In the case of the 130 who requested transfer, what
procedure was followed with respect to these students in 
effecting their transfer?
A They were given, asked to report for a specified time 
and were given a general achievement test.
Q Is this the same general achievement test which is 
given periodically in the school system?
A Yes.
Q What other tests were they given?
A Following that general achievement test there were 47,
I think, administered a second test that was also an achieve­
ment, but it was a different test.
Q 47 were given a special test?
A A second test.
Q Do you have a name for it or some way of identifying 
the test?
A I think it is referred to as SCAT, S-C-A-T. That may 
have been the first one, I am not positive.
Q And this second test was also an achievement test?
A Yes.
Q Is this a test normally and usually given in the school 
system?
A Yes.
Q Now, this one white student, was he included among those



Deposition of John Walter Letson 97.

given a test?
A Yes.
Q What school did he seek to transfer to?

MR, EDENFIELD: Off the record. It was a girl.
A Requested to transfer from Northside High School to
Dykes High School.
Q Is that the girl whose case is now in appeal with the
State Board and so forth?
A It was the subject of litigation. I don't know the
stage of it at the moment.
Q Is Northside a white high school?
A No.
Q It is one of the schools to which Negroes have been
admitted now?
A Yes.
Q What about Dykes?
A There have been no Negroes admitted to Dykes as yet.
Q How do you spell Dykes?
A D-y-k-e-s.
Q Was she given a test, also?
A Yes.
Q Now, you say 47 were given a separate test. What about
the rest --
A A second test.
Q A second test. What about the remainder, they weren't
given a second test?



Deposition of John Walter Letson 98

A They were not given a second test.
Q That is about 83> if my arithmetic is right?
A Approximately, yes.
Q What happened to those 83?
A They were not eliminated from the transfer procedure
at that stage of the game but they were not given the second 
test. There was a plan followed by which the 47 were selected 
and the others were not included.
Q Well, were the others reassigned to the schools that 
they were already attending?
A Their request for transfer was not approved.
Q All right. Now, let's get to the 47, what happened to 
them after they took the second test?
A They were -- their results, test results were evaluated 
and a portion of that group was requested to come in for an 
interview,
Q, Do you know how many?
A At the moment I do not recall. It was approximately
half of that group.
Q They were requested to come in for an interview, you 
say?
A Yes. There was an interview committee set up.
Q Now, who composed the committee that you -- the inter­
viewing committee?
A The deputy superintendent, area superintendents, and
certain principals.



Deposition of John Walter Letson 9 9.

Q How were the principals selected?
A The schools that were involved in the requested trans­
fer.
Q, What took place at these interviews?
A The students were asked general questions about their 
reasons for wanting to transfer, their educational purposes, 
their activities as far as their school work was concerned.
The general purpose was to get a general evaluation of the 
students in terms of personality.
Q Now, the other half of the 47 who were not requested to 
come in for interview, what happened to them?
A It was a process of the selection procedure and they 
were ultimately denied transfer.
Q Now, on the 83 who were first denied transfer, what 
basis were they denied transfer on?
A They were not at that stage -- let me repeat, they 
were -- an effort was made to determine the average achieve­
ment for the grade in which they were requesting to transfer 
at the school to which they were requesting to transfer. 
Included in the list of those that were to be considered 
further were those that came up to or exceeded the average, 
the median for the grade they were requesting. Then there 
was a 10 per cent allowance, if they came within 10 per cent 
of the median of the class, their names were included. Then 
if they met or exceeded the national norm in terms of achieve­
ment for that grade, their names were included in the list,



and that is how the list of 47 was selected.
Q Now, how were the half of 47 that were requested to come 
in for interviews selected?
A On the basis of their scores, on the basis of their 
reason for transfer and on the basis of their proximity to 
the school that they were requesting assignment to.
Q All right, now, of the half of 47 who were requested to 
come in for interview, what happened to that half after the 
interview?
A Some were selected, some requests for transfer were
approved, others were denied,
Q How many would you say of the, I guess that would be 
about 24, let's say, who came in for interview, that would 
be about half of 47, how many of those would you say were 
approved?
A Ten.
Q What was the basis for approving these ten and reject­
ing the other requests?
A The basis, as indicated above, their reasons for wanting 
to transfer, their achievement in relation to the norm for 
the school to which they were requesting a transfer, and 
their proximity to the school.
Q. Now, to which of the high schools were these ten as­
signed, do you remember?
A To four high schools, Murphy, Brown, Grady and North-

Deposition of John Walter Letson 100.

side .



Deposition of John Walter Letson 101

Q How many were assigned to Murphy?
A Three, I think.
Q, And Brown?
A Two.
Q Grady?
A Two.
Q, And Northside?
A Three. Does that total properly?
Q Yes, that is ten. And these were all formerly white
high schools?
A Yes.
Q Now, were there any Negro students in May of 1961 when
this plan went into effect who sought the transfer in grade
11 and 12 to other Negro high schools?
A No.
Q Were there any white students at that time who sought 
to transfer in grades 11 and 12 to other white high schools 
other than this white, one white student you mentioned be­
fore?
A That is the only one.
Q, This second achievement test, which you called SCAT, I 
think, S-C-A-T, you say that is a test generally applied 
periodically in the school system?
A Yes, it was a test that has been used and given in the 
school system. I am not certain that it has been given 
generally to everybody at any one time.



Deposition of John Walter Letson 102

Q Does it serve some special purpose in the school system?
A No, it is not an unusual test. There was elements in
it more in the area of an intelligence test than the former 
one. The second one was more an intelligence test than the 
first one.
Q, But the first one was a general achievement test?
A That is correct.
Q To determine whether the student was performing at his
or her grade level?
A Correct.
Q, Then the second one was an intelligence test?
A Yes.
Q All right, and this intelligence test you say is given
sometimes?
A Yes, it has been used in the school system but not 
generally for all the students.
Q Was it given to the students in grades 11 and 12 in 
May, 1961 when these Negro students sought transfer there? 
That is, was it given to the white students in Murphy, Brown, 
Grady and Northside?
A I wouldn't —  I couldn't say at the moment. I would 
have to check.
Q Now, of the approximately 120 students, I guess, Negro 
students who applied for transfer and who didn't get in, 
did any of those students appeal the denial of their request 
for transfer?



Deposition of John Walter Letson 103

A Yes.
Q How many would you say?
A 38, as I recall.
Q What happened to their appeals, do you know?
A It was appealed to the Board of Education, as specified. 
The Board upheld the Superintendent’s original recommenda­
tion. It was appealed to the State Board of Education. The 
State Board of Education returned it to the Atlanta Board 
of Education for further information upon which the 38 were 
denied transfer.
Q What happened after that?
A It has been subject to further hearing by the Board of 
Education since that time, with the information having been 
given that the Board was ready to hear it.
Q But the Board hadn’t heard it?
A No.
Q Now, in May of 1962 have you had any requests in grades 
10, 11 and 12 for transfer?
A Yes.
Q How many would you say?
A Approximately 300.
Q Are these Negro and white?
A I am not certain whether any white are included in that 
group or not.
Q, What is the present status of those applications for
transfer?



Deposition of John Walter Letson 104.

A They are in the process of being evaluated.
Q, Have they been given any tests?
A No, we aren»t planning to give any tests this year.
Q What are you planning to do?
A The announcement was made that there would be no spe­
cial tests and that we would utilize the test scores that 
were already available in the schools.
Q Are any other criteria going to be applied to these 
300, such as proximity to school?
A That will certainly be taken into consideration in the 
evaluation, but there is no positive policy related to it. 
Just as there were exceptions last year in terms of proxim­
ity for justifiable educational reasons.
Q Are there any other criteria that you can think of 
that would be applied to these 300 who have applied for 
transfers in September, 1962?
A The test scores in proximity to school, subject to 
variation for educational reasons, plus an interview that 
will be a part of the procedure.
Q. Same interview committee?
A Not necessarily the same personnel but generally con­
stituted in the same way.
Q The test scores are going to be used in the same way 
that they were last year, that is, to determine whether the 
transferee scores a grade which is the average for the class 
in the school to which he seeks to transfer, as you explained



Deposition of John Walter Letson 105

it before?
A That same calculation I am certain will be made. It 
doesn't necessarily mean that it will apply as rigidly this 
year as it has in the past.
Q, Do you know how many schools would be involved as a 
result of the requests?
A I think all of our high schools other than two and 
possibly three.
Q What would those be?
A Dykes, East Atlanta and Therrell. So far as I know, 
there were no requests to transfer to those three schools.
Q, In other words, all the other white high schools would 
be involved?
A Yes.
Q These are requests by Negroes to transfer to white
schools?
A So far as I know, white and formerly white.
Q Yes. Now, in May of this year, or prior to the first of
May of this year, did the Board make any announcement to the 
effect that students in grades 10, 11 and 12 were eligible 
to transfer?
A A principals meeting was used as a means of discussing 
the procedure with all concerned.
Q But did the Board prepare any formal statement?
A There was no formal announcement because the placement
plan, copies of it had been made generally available and



Deposition of John Walter Letson 106

everyone was well aware of the procedure.
Q, And your office then didn't send out any formal written 
announcement ?
A No, but did take the initiative in calling a meeting to 
specifically discuss the details.
Q With the principals?
A Yes.
Q, How about the parents of these students, did you meet 
with them?
A Not formally in terms of all of the parents, but there
have been meetings throughout the year with PTA's and other
groups where questions have been asked about the procedure.
Q, Now, let me ask you this, the Negro teachers are still 
assigned to Negro schools and the whites to white schools, 
aren't they?
A Formerly white schools, yes.
Q And those which are still all white, have only white 
teachers?
A Yes.
Q How are teachers assigned? Are they assigned by the
Board or do you do that as the superintendent?
A They are elected by the Board. They are assigned to
specific positions by the superintendent and administrative 
staff.
Q Do you have any Negroes on your administrative staff?
A Yes.



Deposition of John Walter Letson 107

Q How many?
A I have an area superintendent, pupil personnel service
has two; a number of resource teachers who are Negro.
Q What are these resource teachers?
A They are members of the staff in one or more of the
five areas we have in the city of Atlanta.
Q Do they teach a specialty?
A They are supervisors in reality.
Q Oh, supervisors?
A They serve as helping teachers and supervisors.
Q This Negro area superintendent you have, what area does
he supervise?
A Area 1.
Q, Are there any white schools under his jurisdiction?
A No,
Q, Now, these Negro resource teachers that you mentioned, 
do they have any supervisory function over the white schools 
A No.
Q, Are these, what did you call them, personnel?
A Resource teachers?
Q, No, I think there were three categories.

MR. LATIMER: Pupil personnel.
A Pupil personnel.
Q How about these Negro pupil personnel teachers --
A They are a part of the staff of the central office and 
work in the area of pupil problems, emotional problems and



Deposition of John Walter Letson 108

related areas.
Q, Do these Negro pupil personnel teachers take care of 
students of the white schools or just Negro schools?
A Mainly Negro but I am certain that on occasions they
have worked with both. Also, I might add, these resource 
teachers are responsible for teaching in-service training 
courses.
Q For the teachers?
A For teachers.
Q Do the Negro and white teachers meet jointly in these 
in-service training courses?
A In some cases, yes.
Q In what cases?
A There is no particular pattern. It depends on the 
course that is being taught and the degree to which there 
is a desire on the part of the teachers to take it.
Q Well, you mean a course is offered and any teacher is
eligible to attend?
A In general, that is true. We have been in the process 
of changing it during this past year, and the change has not 
been 100 per cent.
Q, What are you changing, I don’t understand?
A We are changing the separation of white and Negro 
teachers and in-service training courses.
Q Now, what about Negro principals? Of course, I assume 
that you still have only Negro principals in the Negro



Deposition of John Walter Letson 109

schools and white principals in the white schools; is that 
right?
A Yes.
Q, What about the extra-curricular activities like the 
Science Fair, do you still have separate competition for 
Negro and white students?
A Yes, this year.
Q, LetTs see, I think there was also a band contest or 
something like that that was separate, do you still have 
those?
A We do not have a band contest as a city-wide activity. 
It comes in an area, larger area, but they were separate.
Q Let me ask you this, have you converted any white 
schools, elementary schools recently to Negro units?
A What do you mean by recently?
Q Well, since you have been superintendent.
A Yes. They were converted to relieve an overcrowded
situation in a nearby school. This was no specific race 
delineation in doing so. Mayson was one, and it is now 
attended by all Negro pupils.
Q, When was that converted?
A In January of 1961. It is anticipated that one elemen­
tary school will be used to relieve the overcrowded situa­
tion at Collier Heights beginning in September,
Q What is the name of the school?
A Margaret Fain.



Deposition of John Walter Letson 110.

Q Is that white?
A Yes.
Q That will be converted in September, '62, you say?
A Yes.
Q All right, what about high schools?
A None.
Q Have there been any high schools opened since you have 
been superintendent?
A Yes, two.
Q What are they?
A Dykes and Therrell.
Q Are those both white?
A Yes.
Q, Now, on the elementary school level, Mayson and Fain 
are the only conversions since you have been superintendent 
A Whitefoord is another.
Q Whitefoord?
A Yes.
Q Is that going to be converted to relieve overcrowding 
in some Negro schools, or has been?
A It has been, yes.
Q What area was that?
A It was done last September.
Q What area was involved, what Negro school, rather?
A Reynolds, Wesley.
Q And that is all of the elementary schools?



Deposition of John Walter Letson 111.

A I think I am correct that that is it.
Q And there have been two white high schools opened since 
you have been superintendent?
A Yes.
Q How about Negro high schools?
A N one.
Q Do you have any charts or statistics which would show 
the enrollment in each high school in the capacity?
A We have attendance reports.
Q That would show that?
A That are required each year by the State that shows the 
attendance by schools.
Q What is the latest one, would you say? Would it be May 
this year, or what?
A We have a monthly report that also would be in at the 
end of May, and our annual report will be completed soon 
after the close of this school year, but it is prepared each 
month.
Q But you would have then a report for the month of May, 
1962?
A We will at the end of May.
Q Do you have one for April, 1962?
A I am not certain whether it has been completed as yet, 
but it will be available.
Q What is the last completed one that you know?
A Well, to be safe I would say March.



Deposition of John Walter Letson 112.

Q March, *62?
A Yes.
Q You have an attendance report which would show each 
school, the enrollment and the capacity?
A It would show the enrollment. It would not show the 
capacity.
Q Do you have anything that shows the capacity?
A We have a report or could get a report that would show
the number of classrooms in each school.
Q Well, what I am trying to get at is something which 
would show which of your schools were overcrowded and which 
were not. Do you have anything that shows that?
A We have a statement that shows the number of classrooms 
available, or can accumulate or get such a statement, and 
then the attendance report which would show the number of 
pupils in that school.
Q The same would be true for the elementary schools?
A Yes.
Q, Do you have anything which would show the teacher-pupil 
ratio in your schools?
A Yes.
Q Do you have any present school construction plans?
A We have a proposed bond issue based upon our estimate
of school building needs.
Q, Is that a document that is available?
A Yes.



Deposition of John Walter Letson 113.

Q Let me ask you this about the teachers, do Negro and 
white teachers have to meet the same standards for employment 
in the system?
A Yes.
Q How about the principals?
A The same.

MISS MOTLEY: I think that is all, Dr. Letson. Thank
you.

By agreement of the parties the Superintendent will give 
the following information, and I will go over it and if you 
have any objection, you can note it.

THE WITNESS: No objection at all.
MISS MOTLEY: First of all, I would like to get the

total enrollment. I suppose you have that?
THE WITNESS: Yes.

Q (By Miss Motley) The percentage of those that are
Negro, number of schools. I think we have 115 elementary and 
24 high schools.
A I would like to check that, too.
Q Then the second thing will be the total number of ele­
mentary schools, total number of high schools, total number 
of elementary schools that are Negro and total number of 
high schools that are white, total number of high schools 
which are Negro and total number which are mixed.
A Well, now, you realize there is no such designation 
any more. Do you want me to designate them as "formerly



Deposition of John Walter Letson 114

white”?
Q Yes.
A And there is no difference in the attendance calcula­
tion for those schools that are integrated in terms of white 
and colored.
Q I don't know if I follow you.
A We do not keep statistics white and colored for those
schools.
Q Well, for the mixed schools.
A Yes.

MR. EDENFIELD: For any of them.
A For any of them, yes.
Q Well, you said there were 14 schools, high schools, 
which are attended wholly by white students, I thought I 
understood you to say.
A I think that is the correct figure, but we do not separ­
ate attendance figures in white, to white and colored.
Q, I understand.
A So in getting you what you want and what you are re­
questing, I may not be able to do it in exactly the way you 
are asking it. I can tell you the schools that were formerly 
all white and I can tell you those that are now attended 
exclusively by Negro and exclusively by white students.
Q Yes, that will be all right.
A But the attendance record will not be in that manner.
Q, Now, the next thing, I guess, will be the fourth item,



Deposition of John Walter Letson 115.

we would like to get the correct number of teachers, that is, 
total number, and the correct number of Negro teachers. I 
think you said about 45 per cent Negro. Well, if you have 
a figure, we would like to get that.

Do you have any maps showing these administrative lines 
that you refer to for the elementary schools?
A Not in the central office. Each area superintendent 
has a rough sketch, but I don't think it is on a map even 
there.
Q What is it on?
A It is just a delineation of where the lines are.
Q, Well, we would like to get a copy of those. And I
think you said there was a board statement in May, 1961?
A Right.
Q, Concerning the right to transfer in grades 11 and 12.
We are going to get a copy of that?
A Yes.
Q We would also like to get a copy, and we would be
glad to do this at our expense if that is a problem, of the
130 requests for transfer made in May, 1961.

MR. LATIMER: You have already got that.
MISS MOTLEY: We do?
MR. LATIMER: You have got everything we have got on

it.
MR. MOORE: I think perhaps we do have a copy of that.
MISS MOTLEY: I didn't know we did. That is all right,



Deposition of John Walter Letson 116

then.
THE WITNESS: I think you do, at least everything we

have has been made available.
Q (By Miss Motley) The other thing I wanted to get 
settled was whether this second test which you refer to as 
SCAT, an intelligence test, was given to the students in 
Murphy, Brown, Grady and Northside in grades 11 and 12 in 
1961.
A All right.
Q And then we would like to get the latest attendance 
report for 1962. You said you thought it was March or might 
be April. Whichever is the latest, we would like to get 
that. Then we would like to get the report which shows the 
capacity of each school, elementary and high school. Then 
we would like to get the report which shows the pupil-teacher 
ratio of each school or class in each school. Then we would 
like to get a copy of the school construction program which 
you refer to, the most recent one. And I believe that is all.

Do you gentlemen have anything you would like to say on 
the record?

MR. EDENFIELD: Not a thing that I know of.

/S/ JOHN WALTER LETSON________
John Walter Letson

Subscribed and sworn to before me 
this ______ day of ____________, 1962.

Notary Public.
My Commission Expires



Deposition of John Walter Letson 117.

G E O R G I A  
PULTON COUNTY:

I hereby certify that the foregoing deposition was taken 
down, as stated in the caption, and the questions and the 
answers thereto were reduced to typewriting under my direc­
tion; that the foregoing 33 pages represent a true and cor­
rect transcript of the evidence given by said witness upon 
said hearing; and I further certify that I am not of kin or 
counsel to the parties to the case; am not in the regular 
employ of counsel for any of said parties; nor am I in any­
wise interested in the result of said case.

This, the 25th day of May, 1962.

/S/_____ B. L. PICKETT______________
B. L. Pickett, Notary Public.
My Commission Expires Aug. J, 1964.



118.

DEFENDANTS1 RESPONSE TO MOTION OF PLAINTIFFS 
(Same Title - Filed May 2k, 1962)

Come now the defendants In the above stated case and 
file this their response to the motion filed by plaintiffs 
therein as follows:

1.
Insofar as Paragraphs 1 through 9 of plaintiffs' 

motion purport to give a history of this litigation, the 
original issues therein and the previous orders entered by 
the Court, said paragraphs are admitted.

2 .

Paragraphs 10 through 16 of plaintiffs' motion are 
denied. Further answering said paragraphs defendants show:

a) That they have complied with the letter 
and the spirit of the previous orders of this 
court, including the placement plan previously 
approved by the Court;

b) Defendants deny that they have "assigned" 
children to particular schools either on the base 
of race, color or otherwise, the fact being that 
the placement plan previously approved by this 
Court contemplated and provided that students in 
the Atlanta School System should continue to at­
tend the schools which they were already attend­
ing, except that said plan provided that in the



Defendants' Response to Motion 119.

11th and 12th grades students might apply for 
transfer, as contemplated in said plan. Defend­
ants show that for the school year 1961-1962, 
one hundred thirty four (134) students did apply 
for transfers pursuant to said plan and that said 
applications for transfer were considered by the 
defendants, according to the criteria specified 
in the plan approved by the Court, after which 
ten (10) of said applications were granted and 
one hundred twenty four (124) were denied;

c) Defendants deny that they have contin­
ued to maintain and operate a racially segregated 
school system in the City of Atlanta and show on 
the contrary that they are proceeding with all 
deliberate speed to integrate the school system 
in accordance with the previous orders of this 
Court;

d) Defendants deny that they have contin­
ued to designate and construct separate schools 
for the negro pupils and the white pupils, the 
fact being that all reference to race in the 
records and construction program of defendants 
having been eliminated;

e) Defendants deny that they have "as­
signed" pupils on the basis of race through the 
drawing and enforcement of school zone lines



Defendants' Response to Motion 120.

based on race;
f) Defendants deny that the criteria 

of the plan approved by this Court are ap­
plied only to negro pupils seeking re-assign­
ment, the fact being that such criteria have 
been applied to both white and colored chil­
dren who applied for transfer impartially and 
without regard to race;

g) Defendants deny that the plan ap­
proved by this Court has been used or is being 
used to maintain segregation in the public 
schools of Atlanta, the fact being that said 
plan has been applied by defendants, in accord­
ance with its letter and spirit, so as to bring 
about a planned transition from segregated to 
desegregated schools;

h) Defendants deny that the adminis­
trative remedy afforded to plaintiffs, and to 
the class they represent, is inadequate in any 
respect;

i) Defendants deny that teachers and 
staff personnel have been assigned on the basis 
of race, the fact being that teachers in four 
high schools of the Atlanta system are now 
teaching integrated classes and that, as the 
plan approved by this Court is consummated the



Defendants’ Response to Motion 121

number of integrated classrooms and hence the 
number of integrated staffs will be increased;

j) Defendants deny that they have main­
tained segregation of the races in extra cur­
ricula activities associated with the Atlanta 
School System, the fact being that integration 
has already taken place in Parent-Teacher Asso­
ciations, lunchrooms, faculty meetings, honor 
day banquets and elsewhere, and that further 
integration of extra curricula activities will 
take place as the plan proceeds.

k) Defendants further deny that they re­
quire negro pupils seeking transfers to take 
tests not required of other students, white or 
colored. Defendants admit that such special 
tests were given applicants for transfer for 
the school year 1961-62. However, for the 
school year 1962-63 applications for transfer 
will be considered on the basis of tests given 
to all students, not on the basis of special 
tests given only to students seeking transfer. 
Defendants further show that this policy was 
adopted and publicly announced long before the 
present motion was filed.

3.
Further answering defendants show that Plaintiffs



motion is, in substance and effect, an attack upon the pre­
vious orders of this Court and upon the plan of desegrega­
tion approved by this Court, which orders and which plan 
have now become final and binding upon Plaintiffs and upon 
the class that they represent.

WHEREFORE, Defendants pray that Plaintiffs' motion 
be overruled and denied.

Defendants' Response to Motion 122.

/s/ NEWELL EDENFIELD
Zs/_ and A. C. LATIMER

and A. C. Latimer 
Attorneys for Defendants

[Attached to this document was proper certificate of service not reproduced 
here.]



123.

O R D E R  
(Same Title)

By direction of Judge Hooper, the above-stated case 
has been set down for hearing on motion for relief before 
Honorable Frank A. Hooper at Atlanta, Georgia on Thursday, 
June 28, 1962 - 9:30 a.m.

Very truly yours,
C. B. MEADOWS, Clerk 
/S/ B. G. NASH
By:

Corrected mailing list
To: Mr. A. T. Walden

28 Butler St., NE Atlanta, Ga.
Mr. Donald L. Hollowell 
859 1/2 Hunter St., NW 
Atlanta, Ga.
Mr. E. E. Moore, Jr.
175 Auburn Ave., NE 
Atlanta, Ga.
Mrs. Constance B. Motley & 
Mr. Thurgood Marshall 
107 W. 43rd St.,
New York, N. Y.

Bart G. Nash 
Chief Deputy Clerk

Mr. J. C. Savage 803 Citizens & Southern 
Nat'l Bank Bldg., Atlanta, 
Ga.
Mr. Newell Edenfield 
715 Citizens & Southern 
Natrl Bank Bldg., Atlanta, 
Ga.
Mr. Eugene Cook, Atty. Gen. 
216 Judicial Bldg.,
Capitol Square 
Atlanta, Ga.



124.

MOTION FOR RULE NISI 
(Same Title - Filed June 29, 1962)

Plaintiffs, by their undersigned attorneys, move 
this Court for an order setting a day certain within 30 
days from the filing and service of the motion for the hear­
ing of plaintiffs* motion for further relief filed in this 
cause on April 30, 1962 or, in the alternative, for an or­
der directing defendants to show cause within 5 days why 
plaintiffs * motion may not be heard within 30 days from the 
filing of this motion and, as grounds therefor, show the 
following:

1. This case was originally filed on January 11,
1958.

2. On May 9, i960, this Court finally approved 
defendants* plan of desegregation which was to become ef­
fective with the school year September 1961-62 desegregat­
ing grades eleven and twelve of the Atlanta public school 
system.

3. However, as a result of the implementation of 
this plan only ten Negro students were granted requests for 
transfers to previously all-white high schools in Atlanta. 
All other students in grades eleven and twelve were assigned 
to schools on the previously declared unconstitutional 
ground of race.

4. On April 30, 1962, plaintiffs filed a motion for



Motion for Rule Nisi 125

further relief, the court having retained jurisdiction of 
this cause, with a notice of motion giving notice to defend­
ants that plaintiffs’ motion would be brought on for hear­
ing on May 28, 1962, Rule 6 (d) and 7 (b) FRCP.

5. The May 28, 1962. hearing date was discussed soon 
after the filing of said motion and notice with the Honor­
able Frank Hooper, Judge of this Court, by the plaintiffs' 
Atlanta counsel, E. E. Moore, and found to be a date on 
which the court could hear the case. No further action was 
therefore taken by plaintiffs' counsel and defendants filed 
no objection to the hearing of the motion pursuant to 
notice.

6. On May 21, 1962, plaintiffs' counsel, in prepar­
ation for the hearing of the motion for further relief on 
May 28, 1962, took the deposition of Dr. J. W. Letson, the 
new Superintendent of Schools, and learned for the first 
time from defendants' counsel Newell Edenfield (A. C. Latimer 
was also present) that defendants did not plan to appear
for the hearing on May 28, 1962 on the ground that the hear­
ing had not been placed on the court calendar for that date 
as required by local court rules.

7. Plaintiffs had not received any notification 
from the court that it could not hear the case on May 28. 
Consequently, on May 21, 1962, following the taking of the 
Superintendent's deposition, plaintiffs' counsel conferred 
with Judge Hooper and was advised by him that the case would



Motion for Rule Nisi 126

not be heard on May 28 since no motion had been made by 
plaintiffs' counsel to have the case heard on that date. 
Plaintiffs' counsel thereupon requested the court to set a 
date for the hearing of their motion.

8. Thereafter, on or about May 23, 1962, by order 
of Judge Hooper, plaintiffs' motion was set for hearing on 
Thursday, June 28, 1962 at 9:30 A.M. All counsel were 
notified of the date of this hearing.

9. During the week of June 12, 1962, plaintiffs' 
counsel employed a special attorney, Norman Amaker of New 
York, to assist Mr. E. E. Moore, one of plaintiffs' Atlanta 
attorneys, in the gathering of documentary evidence in 
preparation for the hearing on June 28, 1962. Mr. Moore 
and Mr. Amaker, with the knowledge of defendants' counsel, 
consulted with the Superintendent and received from him 
certain documentary evidence requested by plaintiffs at the 
time of taking Dr. Letson's deposition. Plaintiffs' counsel 
were not advised by Dr. Letson or counsel for defendants 
that they would not proceed to the hearing of this matter on 
June 28, 1962.

10. On June 26, 1962, two days prior to the date set 
for hearing plaintiffs ' motion, Mr. E. E. Moore received a 
call from Mr. A. C. Latimer, attorney for the defendant 
school board, advising him that the hearing would not take 
place on June 28. Plaintiffs' counsel did not receive any 
notice of motion to continue the hearing or any order from



Motion for Rule Nisi 127

the court advising that the hearing had been continued.
11. On June 28, the date set for hearing, plain­

tiffs' counsel Mr. E. E. Moore received in the mail a copy 
of a letter to Judge Hooper and an affidavit of a physician 
attesting to the fact that Mr, Newell Edenfield, one of the 
attorneys for defendants, was ill and would not be able to 
participate in any court hearings until after August 1, 1962.

12. Plaintiffs were given no opportunity to object 
to the continuance of the hearing or to examine defendants' 
counsel, Mr. A. C, Latimer, as to why he could not proceed 
with the hearing notwithstanding Mr. Edenfield*s illness.

13. Plaintiffs do not question the fact that Mr. 
Edenfield is ill. Plaintiffs object to the continuance of 
the hearing of their motion for further relief in this cause 
on the ground that defendants are represented by other able 
counsel in addition to Mr. Latimer and are in a position to 
secure other counsel if required. Mr. Latimer, who is now 
an attorney for the defendants, was himself a defendant in 
this case as Chairman of the Board of Education of the City 
of Atlanta when this suit was filed, when it was heard, and 
when the court's order approving the plan of desegregation 
was entered. He was present when the Superintendent's 
deposition was taken. He is familiar with all the facts
in this case and is fully able to represent defendants in 
the proposed hearing of this motion. The law applicable has 
been settled by decisions of the Court of Appeals for the



Motion for Rule Nisi 128.

Fifth Circuit in numerous cases.
WHEREFORE, plaintiffs pray that this Court issue an 

order setting a date for the hearing of their motion for 
further relief within 30 days from the filing and service 
of this motion, which is June 29, 1962, or, in the alterna­
tive, issue an order directing defendants to show cause 
within five days why plaintiffs’ motion should not be heard 
within thirty days from the filing of this motion.

E. E. MOORE, Jr.
Suite 201175 Auburn Avenue, N. E. 
Atlanta, Georgia

DONALD L. HOLLOWELL 
Cannolene Building (Annex) 
859 1/2 Hunter Street, N. W. 
Atlanta, Georgia

CONSTANCE BAKER MOTLEY 
JACK GREENBERG 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs
A. T. WALDEN 

Of Counsel

[Appended to this document was duly executed 
certificate of service not reproduced here.]



129.

O R D E R
(Same Title)

By direction of Judge Hooper, the above-stated case 
has been set down for hearing on order to show cause before 
Honorable Prank A. Hooper at Atlanta, Georgia on Thursday, 
July 5, 1962 - 9:30 a.m.

Very truly yours,
C. B. MEADOWS, Clerk 
/S/ B. G. NASH 
By: Bart G. Nash

To:
A. T. Walden 
28 Butler St., NE 
Atlanta, Ga.
Mrs. Constance B. Motley 
& Thurgood Marshall 10 Columbus Circle 
New York 19, N, Y.
Newell Edenfield
715 Citizens & SouthernNat * 1 Bank Bldg.
Atlanta, Ga.

Chief Deputy Clerk

Donald L. Hollowell 
859 1/2 Hunter St., NW 
Atlanta, Ga.
J. C. Savage803 Citizens & Southern
Nat’l Bk. Bldg.
Atlanta 3, Ga.
Mr. Eugene Cook, Attorney 

General
132 Judicial Bldg., 40 
Capitol Sq.
Atlanta, Ga,
A. C. Latimer 
Healey Bldg.,
Atlanta, Ga.



130

O R D E R  
(Same Title)

By direction of Judge Hooper, the above stated case 
has been set down for hearing on plaintiffs* motion for 
further relief before Honorable Frank A, Hooper at Atlanta, 
Georgia on Thursday, August 2, 1962 - 9=30 a.m.

BGNtrc

To: Mr. A. C. Latimer
Healty Bldg.,
Atlanta, Ga.
Mr. A. T. Walden 
28 Butler St., NE, 
Atlanta, Ga.
Mr. E. E. Moore, Jr., 
175 Auburn Ave., NE 
Atlanta, Ga,
Mr. J. C. Savage 803 Citizens & Southern 
Nat * 1 Bank Bldg., 
Atlanta, Ga.

Very truly yours,
C. B. MEADOWS, CLERK
/S/ BART G. NASH
By: (Bart G. Nash)

Chief Deputy Clerk

Mr. Donald L. Hollowell 
859 1/2 Hunter St., NW 
Atlanta, Ga.
Mrs. Constance B. Motley &
Mr. Thurgood Marshall 
10 Columbus Circle,
N. Y. 19, N. Y.
Mr. Newell Edenfield
715 Citizens & Southern
Nat*l Bank Bldg., Atlanta, Ga.

Mr. Eugene Cook, Attorney 
Gen.,

132 Judicial Bldg.,
40 Capitol Sq.,
Atlanta, Ga.



131

PLAINTIFFS' PROPOSED FINDINGS OF FACT 
______ AND CONCLUSIONS OF LAW________

(Same Title)

A. Findings Of Fact

1. This class action was originally instituted on 
January 11, 1958. The relief sought at that time was a pre­
liminary and permanent injunction "enjoining the defendants 
from operating the public school system of Atlanta, Georgia, 
on a racially segregated basis, and enjoining the defendants 
from refusing to permit the minor plaintiffs to attend any 
public school in the City of Atlanta, Georgia, which they 
are otherwise qualified to attend, solely because of their 
race and color".

2. The case came on for trial on June 5, 1959 fol­
lowing which this court entered an Order on July 9* 1959 
enjoining defendants from: "Enforcing and pursuing the pol­
icy, practice, custom and usage of requiring or permitting 
racial segregation in the operation of the public schools 
of the City of Atlanta, and from engaging in any and all 
action which limits or affect admission to, attendance in, 
or education of, infant plaintiffs, or any other Negro chil­
dren similarly situated, in schools under defendants' juris­
diction on the basis of race and color".

3. However, defendants were allowed a reasonable 
period of time "to achieve full compliance with this Order



Findings of Fact and Conclusions of Law 132.

and for bringing about a transition to a school system not 
operated on the basis of race". Accordingly, defendants 
were directed to "present to this court on or before the 
1st of December, 1959* a complete plan adopted by them de­
signed to bring about compliance with the Order which would 
provide for a prompt and reasonable start toward desegrega­
tion of the public schools of the City of Atlanta and a 
systematic and effective method for achieving such desegre­
gation with all deliberate speed".

4. On August 7, 1959* defendants appealed to the 
United States Court of Appeals for the Fifth Circuit from 
this Court's order of July 9* 1959. This appeal was dis­
missed on motion of defendants on January 26, 1962 by that 
court.

5. The plan was submitted on November 30, 1959. On
December 12, 1959* plaintiffs filed their objections to the 
plan which was amended pursuant to order of the court on 
January 4, i960. On January 8, i960, plaintiffs filed ob­
jections to the plan as amended. The plan was again amended 
on January 18, i960. Following this second amendment, the 
plan was approved by the Court on January 20, i960, but no 
date was set for implementation of the plan for the follow­
ing reasons: The plan was made "contingent upon enactment
of statutes by the General Assembly of Georgia permitting the 
same to be put into operation". The plan was to be submitted 
to the General Assembly for approval, and counsel for defend­



Findings of Fact and Conclusions of Law 133.

ants were directed by the court to transmit copies to the 
President of the Senate and Speaker of the House of Repre­
sentatives. This court was of the view that there were 
Georgia laws then existing which ultimately would have re­
sulted in the closing of all public schools in Georgia if 
Atlanta desegregated even one of its schools.

6. The General Assembly of Georgia convened in 
regular session on January 11, i960 and adjourned in Febru­
ary i960 without enacting any statutes which would have 
permitted the defendants* plan to go into unobstructed oper 
ation and without repealing any of the laws of Georgia 
which this court ruled would have resulted in the withhold­
ing of funds from desegregated schools and consequent clos­
ing of all schools if the races were mixed in the public 
schools of Atlanta. The only action taken by the General 
Assembly was the establishment of a commission to study the 
matter and to report to the Assembly by May 1, i960.

7. Consequently, on February 26, i960, after the 
Georgia General Assembly adjourned, plaintiffs filed a mo­
tion for further relief in which they requested the court 
to enter an order directing defendants to commence implemen 
tation of the plan on May 1, i960 when, according to the 
plan, applications for transfer were to be received each 
year between May 1st and May 15th, The objective of the 
motion was to compel a start toward desegregation of the 
Atlanta public school system in September i960, two years



Findings of Fact and Conclusions of Law 134

and nine months after commencement of the action.
8. This motion was denied on March 9, i960 on the 

ground that the General Assembly’s study commission would 
make its report on May 1, i960. In the order denying the 
motion, the court set a hearing on plaintiffs’ motion for 
May 9, i960. In the same order the court gave plaintiffs a 
certificate, as provided by Act of Congress, to enable 
plaintiffs to take an appeal to the Court of Appeals for 
the Fifth Circuit upon any phases of the case which plain­
tiffs desired, including the previous order of the court 
which approved the plan and including the instant order of 
the court which denied plaintiffs’ motion to put the plan 
into effect in i960.

9. On the same day, plaintiffs filed a notice of
appeal to the Fifth Circuit but moved in this court on 
March 24, i960 to withdraw that appeal. That appeal was 
taken only from the order of March 9, i960 denying plain­
tiffs’ motion for further relief. On April 5, i960 this 
court entered an order allowing plaintiffs' motion to dis­
miss the appeal. No appeal was taken by plaintiffs from 
the order of July 9, 1959. That order provided In its 
final paragraph as follows: "This Judgment of the Court is
not a final Judgment in the case and the Court retains juris­
diction of this cause for the purpose of entering such fur­
ther orders or granting such further relief as may be neces­
sary to bring about compliance with this decree and during



Findings of Fact and Conclusions of Law 135.

such time as may be necessary to put into effect the defend­
ants* plan".

10. On April 28, i960 the General Assembly Committee 
On Schools submitted a report to the President of the Senate, 
the Speaker of the House of Representatives, and the members 
of the General Assembly of Georgia. The report consisted
of a Majority and Minority Report. The Majority Report 
recommended constitutional and statutory changes which the 
majority believed would meet the school closing problems 
presented by court ordered desegregation in Atlanta.

11. Thereafter, on May 9, i960 this case came on 
for hearing on plaintiffs* motion for further relief which 
had been filed on February 26, i960, followed by an order 
of the same date. By this order the court denied the 
plaintiffs’ motion with respect to September i960 but 
granted same with respect to grades 11 and 12 in 1961. 
Defendants were directed to implement their plan beginning 
May 1, 1961 "whether or not the General Assembly of Georgia 
at its Session in January 1961 passes legislation permit­
ting defendants to put said Plan into operation".

12. No appeal was taken from this order. On Sep­
tember 13, i960 this court rendered an opinion on plaintiffs’ 
motion for further relief setting forth its reasons for deny­
ing same with respect to i960 and granting same with respect 
to 1961.

13. In January 1961 the General Assembly of Georgia



Findings of Fact and Conclusions of Law 136

enacted various laws affecting school desegregation issues, 
the effect of which was to permit Atlanta to proceed with 
its pupil assignment plan of desegregation without risking 
the withholding of funds or the closing of schools.

14. The plan approved by this court provided in part 
as follows:

1. In the assignment, transfer or continuance 
of pupils among and within the schools, or 
within the classroom and other facilities 
thereof, the following factors and the ef­
fects or results thereof shall be considered, 
with respect to the individual pupil, as 
well as other relevant matters: Available 
room and teaching capacity in the various 
schools; the availability of transportation facilities; the effect of the admission of 
new pupils upon established or proposed 
academic programs; the suitability of estab­
lished curricula for particular pupils; the 
adequacy of the pupil's academic preparation 
for admission to a particular school and 
curriculum; the scholastic aptitude and rela­
tive intelligence or mental energy or ability of the pupil; the psychological qualification 
of the pupil for the type of teaching and 
associations involved; the possibility of threat or friction or disorder among pupils 
or others; the possibility of breaches of the peace or ill will; the effect of admission 
of the pupil upon the academic progress of 
other students in a particular school or facil­
ity thereof; the effect of admission upon pre­vailing academic standards at a particular 
school; the psychological effect upon the 
pupil of attendance at a particular school; 
the home environment of the pupil; the main­
tenance or severance of established social and 
psychological relationships with other pupils 
and with teachers; the choice and interests of 
the pupil; the ability to accept or conform to 
new and different educational environment; the morals, conduct, health and personal standards 
of the pupil; the request or consent of parents 
or guardians and the reasons assigned therefor.



Findings of Fact and Conclusions of Law 137.

2. Subject to supervision and review by the 
Board, the City Superintendent of Schools 
shall have authority and be charged with 
responsibility with respect to the assign­
ment (including original and all other ad­missions to the school system), transfer 
and continuance of pupils among and within 
all public schools operated under the juris­diction of the Atlanta Board of Education.

3. The Superintendent shall have authority 
to determine the particular public school 
to be attended by each child applying for 
assignment or transfer, and no child shall be entitled to be enrolled or entered in a 
public school until he has been assigned 
thereto by the Superintendent or his duly 
authorized representative. All existing 
school assignments shall continue without 
change until or unless transfers are di­
rected or approved by the Superintendent or 
his duly authorized representative,

4. Between May 1st and May 15th applications 
for the admission, assignment or transfer, 
and/or placement of pupils to or in par­
ticular schools shall be directed to the 
Superintendent of Schools and shall be de­
livered to the school principal unless 
otherwise directed by the Superintendent 
on forms provided by the Superintendent, 
and made available at the offices of the Board of Education. Such forms shall be 
delivered only on request of and to the 
applicant student or to his parent or legal guardian in person, by the principal of the 
school then attended by such student or by 
the Superintendent of Schools.
15. By order of the court on May 9, i960, the plan 

was made applicable to grades 11 and 12 in September, 1961. 
Between May 1st and 15th, 1961, approximately 130 eleventh 
and twelfth grade students sought transfers from schools to 
which they had previously been assigned. Approximately 129 
of these students were Negro students seeking transfers to



Findings of Fact and Conclusions of Law 138

white schools. One of these applications for transfer was 
that of a white female student who objected to Negroes be­
ing admitted to the Northside High School (white) to which 
she had been assigned. This white applicant sought a trans­
fer from Northside High School to Dykes High School. Her 
application was denied by the Superintendent. The Atlanta 
Board sustained the Superintendent and an appeal was taken 
to the State Board which reversed the local board. This 
court on December 21, 1961 permanently enjoined the State 
Board's enforcement of its order. An appeal from that order 
of this court is presently pending before the Fifth Circuit.

16. Of the approximately 129 Negroes who sought 
transfers from Negro high schools to white high schools, 
only ten were granted transfers.

17. The ten granted transfers were first given a 
general achievement test along with the 119 other Negro 
applicants. As a result of this general achievement test,
48 were notified by the Superintendent to report for a 
second achievement or intelligence test known as the School 
and College Aptitude Test, Series Form 2B (SCAT), The test 
administered to the 129 Negro students is known as the 
School and College Aptitude Test, Series Form 2A. According 
to the Superintendent of Schools, Form 2A and Form 2B have 
been "equated statistically and are completely interchange­
able." Form 2A is used routinely in all Atlanta High 
Schools in the 9th, 10th, and 11th grades to ascertain



Findings of Fact and Conclusions of Law 139.

scholastic aptitude. The Form 2B is not routinely used.
18. Approximately one-half of the 48 subjected to 

the second test, i.e., 24 Negro students, were then notified 
to report for an interview to determine "personality" by an 
interview committee composed of a deputy superintendent of 
schools, the area superintendent for Area I of the Atlanta 
Public School System, and the principals of the white high 
schools to which these Negro students sought transfer. As
a result of these "personality" interviews, the ten success­
ful applicants for transfer were selected. These transfers 
were granted to the following white schools: Murphy, Brown,
Brady, and Northside.

19. The plaintiffs contend that the criteria of the 
plan should have been applied in the assignment, transfer 
and continuance of all pupils in grades 11 and 12 in Sep­
tember, 1961, and not solely to the 130 pupils seeking trans 
fers (see paragraph number 1-4 of plan, supra). Plaintiffs 
further contend that the provision of the plan (paragraph 
numbered 3) freezing all existing assignments applied only 
to grades one through ten. Defendants, on the other hand, 
contend that all existing assignments continue and that the 
criteria of the plan apply only to students, Negro and white 
seeking transfer.

20. In May, 1962, approximately 266 Negro students 
sought transfer to white schools. Of this number, 44 Negroe 
have been granted transfers to seven additional white high



Findings of Fact and Conclusions of Law l40.

schools; i.e. Bass, Fulton, O'Keefe, Roosevelt, Sylvan, 
Smith, and West Fulton, making a total of 11 white high 
schools to which a total of 48 Negroes have now been ad­
mitted. Five of the Negroes admitted in September, 1961, 
have graduated, one left the white high school to which she 
had transferred, and four remain as assigned in 1961.

21. In selecting the 44 transferees in 1962, the 
Superintendent did not apply the same criteria applied in 
selecting the ten transferees in 1961, In 1961, only those 
Negro students of the 129 who scored the median score for 
the 11th or 12th grade to which they sought transfers on the 
Form 2A tests (general achievement), or who scored at or 
above the national norm for such tests were selected for the 
Form 2B test. Considered for the second test also were 
those Negro students of the 129 who scored within 10 per 
cent of the median of the class to which they sought trans­
fer. The Form 2B test is more of an intelligence test than 
the first test, Form 2A, which is a general achievement test 
Those selected for interview after taking the Form 2B test 
were selected on the basis of l) the score which they re­
ceived on the tests, 2) their reasons for wanting to trans­
fer, and 3) on the basis of their proximity to the school 
to which they sought transfer. The ten selected after inter 
view were selected on the basis of l) their reasons for 
wanting to transfer, 2) their achievement in relation to 
the norm for the school to which they were requesting a



transfer, and 3) their proximity to the school. In 1962, 
the applicants for transfer were not given any special tests. 
The results of the general achievement test which they had 
already taken in the school system were considered; and, on 
the basis of their scores on these tests and the "personal­
ity" interviews, 44 were permitted to transfer to the white 
high schools to which they requested transfer.

22. Of the approximately 119 Negroes denied trans­
fers to white schools in 1961, 38 pursued the administrative 
remedy provided in the plan. When their appeals reached 
the State Board of Education, they were remanded to the 
Atlanta Board for the statement of further reasons for 
denial of the transfers in each case on the ground that the 
reasons assigned by the Board for denying the transfers 
were insufficient to permit the State Board to pass upon 
the appeals. Thereafter, on January 15, 19^2, the Atlanta 
Board assigned additional reasons in each of these 38 cases. 
The reasons given in each case for denial of transfer re­
lated l) distance from the home of the applicant to the 
Negro school as opposed to distance from the home of the 
applicant to the white school, and 2) the applicant's 
achievement test scores (SCAT Form 2A).

23. It is undisputed that the criteria of the plan 
have not been applied to new students entering grades 10,
11, and 12 of the Atlanta school system, or to Negro stu­
dents seeking transfers to other Negro high schools, or to

Findings of Fact and Conclusions of Law l4l.



Findings of Fact and Conclusions of Law 142.

white students seeking routine transfers to other white 
high schools based on change of residence, etc., or to white 
or Negro students continuing in the same high schools to 
which they had been assigned in i960. In short, the cri­
teria of the plan have been applied only to Negro high 
school students in grades 10, 11, and 12 seeking transfers 
to white schools and the one white student who sought re­
assignment to another white high school when her school was 
desegregated by the admission of 3 Negro students. More­
over, the 17 criteria of the plan approved by the court 
have been only partially applied, even in the case of trans­
ferees .

24. It is also undisputed that defendants have con­
tinued to maintain and operate 72 elementary schools limited 
to attendance by white pupils, 4l elementary schools limited 
to attendance by Negro pupils, 17 high schools limited to 
attendance by white students (except for 48 Negro students 
granted transfers) and 5 high schools limited to attendance 
by Negro students.

25. It is further undisputed that there has been 
no change in the policy of assigning white professional 
personnel--such as teachers, principals and supervisors--to 
the 89 white schools and Negro personnel of like description 
to the 46 Negro schools. The white high schools to which 
Negro pupils have been transferred are staffed by white per­
sonnel .



Findings of Fact and Conclusions of Law 1 4 3 .

26. At the present time, there are approximately 
106,000 pupils enrolled in the Atlanta public school system. 
Of this number, approximately 57,500 are white pupils and 
48,500 are Negro pupils.

27. Although there are only approximately 9,000 
more white pupils in the Atlanta public school system than 
Negro pupils, 43 more schools have been allocated to white 
use than to Negro use. The white pupils have a total of 89 
schools and the Negro pupils 46 schools. In other words, 
although Negroes constitute approximately 45$ of the school 
population, they have only about 33$ of the school buildings. 
As a result, there is serious overcrowding in many of the 
Negro schools.

28. On the elementary school level, since September 
i960 several elementary schools were converted from white
to Negro use. One such conversion was Mayson Elementary 
School in January 1961. In September 1962, the Margaret 
Fain Elementary School will be converted to Negro use to 
relieve the overcrowding in Collier Heights, Whitefoord was 
converted in September 1961. Key Elementary School will also 
be converted in September 1961 from white to Negro use. On 
the high school level, Turner, Washington, Price and Howard 
High Schools are overcrowded. Whereas the following white 
high schools are not overcrowded--Bass, Smith, Roosevelt, 
Walter George, Northside, Dykes, East Atlanta, North Fulton, 
Murphy and O'Keefe. The overcrowding in the Negro high



Findings of Fact and Conclusions of Law 144.

schools will be relieved in September 1962 by the installa­
tion of mobile classroom units, to which there has been 
strenuous objection in the Negro community. The proposed 
new $26,000,000 school bond issue provides for the alloca­
tion of l6 million dollars for the building of Negro schools.

29. There are approximately 3>836 teachers and 
principals in Atlanta’s regular day schools, approximately 
1,637 of which are Negro teachers and principals, and ap­
proximately 2,199 are white teachers and principals, result­
ing in higher pupil-teacher ratios in many Negro schools.

30. Defendants have prepared forms to be utilized 
by pupils seeking admission, assignment or transfer in the 
Atlanta public school system since the effective date of the 
plan. These application forms headed "Application for 
Admission, Assignment, or Transfer of Pupil" request that 
the applicant state his or her race. They also require the 
applicant to state his parents' or guardian's occupation 
and the name and the address of employer. The 1962 forms 
omit "address of employer."

31. Basically, children in the Atlanta public 
school system are assigned to school pursuant to school 
zone or attendance area lines which have been delineated by 
school authorities for each school. On the high school 
level, these lines are shown on maps in the Superintendent's 
office. There are separate lines for the Negro and white 
high schools. On the elementary school level, school zone



Findings of Fact and Conclusions of Law 145.

lines are determined by each Area Superintendent in con­
junction with the principals of the schools in his or her 
area. There are separate lines for the Negro elementary 
schools.

32. The Atlanta public school system is divided 
into five administrative areas. Area 1 comprises virtually 
all of the Negro schools, the Area Superintendent of which 
is a Negro.

33. AH extra-curricula school activities are still 
operated on a racially segregated basis, such as the Na­
tional Science Fair competition, band concert competition, 
etc.

34. Neither the defendant Board nor the Superin­
tendent has ever sent any written communication to the par­
ents of children in grades 10, 11 or 12 advising them of 
their right to transfer or be considered for admission 
without regard to race under the plan.

35. Defendants presently have no plans for inte­
grating the dual system of Negro and white schools into a 
unitary non-racial system.

B, Conclusions of Law

1. This court having retained jurisdiction of this 
cause by its order of July 9* 1959* has jurisdiction to hear 
and determine plaintiffs' motion for further relief which 
seeks to modify the injunctive order issued by this court



Findings of Fact and Conclusions of Law 146.

on July 9, 1959.
Boson y. Ripny, 275 F.2d 850, 853 (5th 

Cir. i960)
2. This court was required by the Supreme Court's 

decisions in Brown v. Board of Education of Topeka, 349 U.S. 
294, 301 (1955), and Cooper v. Aaron, 358 U.S. 1, 7 (1958), 
to retain jurisdiction of this cause to insure full compli­
ance with the Supreme Court's decision in Brown v. Board of 
Education of Topeka, 347 U.S. 483 (1954).

Avery v, Wichita Falls Independent School 
District, 241 F.2d 230, 234-235 (5th 
Cir. 1957)

Rippy v. Borders, 250 F.2d 690, 693-694 
(5th Cir. 1 9 5 7)

3. The plan approved by this court on January 20, 
i960, must now be construed in the light of the Fifth Cir­
cuit's opinion in Manning v. Board of Public Instruction of 
Hillsborough County, 277 F.2d 370 (5th Cir. i960), decided 
by that court on April 30, i960, warning that pupil assign­
ment criteria, when used as a method for assigning pupils 
to school, must be applied to all pupils in the school 
system and cannot be used with a system of "automatically 
assigning all pupils to the same racially segregated schools 
which they had been attending, without applying any standards 
or tests to any but the relatively few Negro students who 
sought transfers to what had theretofore been white schools." 
(At 374.) In the light of this decision, this Court should 
now conclude that the application of the criteria of the plan



Findings of Fact and Conclusions of Law 147

approved by it in this case to transferees all of whom, with 
the exception of one, was a Negro seeking admission to a 
white school, was contrary to the Fifth Circuits opinion 
in the Manning case and the defendants are now required to 
apply such criteria--if they are to be applied at all— to 
all 10, 11 and 12 grade pupils covered by the plan in as­
signing such pupils to school in September 1962.

Cf. Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961)
Dove v, Parham. 282 F.2d 256, 260 (8th 

Cir. I960)
Jones v. School Board of the City of

Alexandria, 287 F.2d 72 (4th Cir. i960)
Dodson v. School Board of the City of 

Charlottesville, 289 F.2d 439, 443 (4th Cir. 1961)
* Marsh v. County School Board of Roanoke 

County. 4th Cir. No. 8555. June 12.1962
* Green v. School Board of the City of 

Roanoke. 4th Cir. No. 85S4. May 22.
1962

Norwood v. Tucker. 287 F.2d 798 (8th Cir.
1 9 6 1 )

4. The race and color of an applicant for admission, 
transfer or assignment to a public school in the City of 
Atlanta, is constitutionally irrelevant and may not be con­
sidered or inquired into by defendants in admitting, assign­
ing, transferring, placing or continuing any student in any

* Copies attached.



Findings of Fact and Conclusions of Law 148.

class or in any school in the City of Atlanta.
Boson v. Rlppy, 285 F.2d 43, 48 (5th Cir. I960)
5. The delineation and enforcement of a dual system 

of school zone or attendance area lines for each school 
based on race and color is unconstitutional and defendants 
are required to redraw school zone lines, if used as a basis 
for assigning pupils to school, without regard to the race 
and color of the children living in the area of the school. 
Any child living within a geographical area assigned to an 
elementary or high school is entitled to attend that school.

Jones v. School Board of the City of 
Alexandria, 278 F.2d 72, 76 (4th Cir.
1 9 8 0 )

Northcross v. Board of Education of Memphis,
302 F.2d 818, 823 (6th Cir. 1962)

Bush v. Orleans Parish School Board, 204 F.
Supp. 568, 569-571 (E.D. La. 1962), judgment modified on other grounds,
_____F. Supp. _____  (E.D. La. 1962),
appeal pending

Marsh v. School Board of Roanoke County, supra.
Green v. School Board of the City of Roanoke, 

supra.
Norwood v. Tucker, supra.
6. The Supreme Court's decision in the Brown case 

postulates that defendants may no longer maintain and oper­
ate white schools and Negro schools. The dual school system 
which has been in operation in the City of Atlanta must be 
reorganized into a unitary non-racial school system. Such



Findings of Fact and Conclusions of Law 149.

reorganization requires the ultimate reassignment of all 
students on some reasonable non-racial basis, e.g., the draw­
ing of school zone lines for each school without regard to 
race or color of the children living in the vicinity of the 
school and the ultimate reassignment of all professional 
school personnel on the basis of qualification and need and 
without regard to race or color.

Northcross v. Board of Education of Memphis, 
supra at 823

7. The plan approved by this court on January 20, 
i960, can be justified only as a temporary expedient whereby 
a prompt and reasonable start toward desegregation, as re­
quired by the Supreme Court's decision in Brown v. Board of 
Education of Topeka, could be effectuated. Now that a start 
has been made, defendants are required to take steps to 
bring about the elimination of all racial segregation from 
the public school system of the City of Atlanta.

Cooper v. Aaron, 358 U.S. 1, 7 (1958)
See Hill v. School Board of the City ofNorfolk, 282 F.2d 473, 475 (4thCir. 

i960) , and
Dodson y. School Board of the City of 

Charlottesville, 289 F.2d 439, 443- 444 (4th Cir. l§6l), re temporary 
tolerance of discriminatory assign­
ment practices;

Cf. Green v. County School Board of Roanoke 
County, supra, and

Marsh v. School Board of the City of 
Roanoke, supra



Findings of Fact and Conclusions of Law 150

8, Defendants may not maintain "white schools," 
"Negro schools," and "integrated schools" since such an 
arrangement does not meet the requirements of the Supreme 
Court's decision in Brown v. Board of Education of Topeka.

Kelley v. School Board of the City of 
Nashville, 270 F.2d 209, 230 (oth 
Cir. 1959)

Boson v. Rippy, 285 F.2d 43, 45-46 (5th 
Cir. i960)

9. Defendants may not permit transfers between 
schools based upon racial considerations.

Boson v. Rippy, supra at 48

Respectfully submitted,

E. E. MOORE, JR.
Suite 201175 Auburn Avenue, N.E. 
Atlanta, Georgia

DONALD L. HOLLOWELL Cannolene Building (Annex) 
859 1/2 Hunter Street, N.W. 
Atlanta, Georgia

CONSTANCE BAKER MOTLEY 
JACK GREENBERG 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs
A. T. WALDEN 

Of Counsel

[Proper certificate of service dated July 19, 
1962 attached.]



150-a

PLAINTIFFS' PROPOSED PLAN OF DESEGREGATION 
(Same Title - Filed July 20, 1962)

Come now the plaintiffs, by their undersigned 
attorneys, and propose that the Atlanta public school 
system be desegregated in accordance with the following 
plan:

1. Beginning in September 1963 all students and 
all professional personnel in the 22 high schools of the 
City of Atlanta (grades 8, 9, 10, 11 and 12) shall be re­
assigned in accordance with the following:

(a) School zone lines will be drawn for each 
high school in the city. These lines will be drawn with 
a view to assigning to each high school that number of 
students which corresponds to the normal capacity of the 
school. In determining the children to be assigned to 
each high school, the children living in the immediate 
vicinity of each school shall be counted and assigned 
thereto without regard to race or color until the capac­
ity of the school is reached.

(b) The regular and special teachers, the 
counselors, the principals, and the supervisors presently 
assigned, or to be assigned, to high schools in Septem­
ber 1963 will be reassigned prior to the opening of 
school in September 1963 on the basis of qualification 
and need and without regard to race or color. All tenure 
and seniority rights to be observed.



150-b
PLAINTIFFS PROPOSED PLAN OF DESEGREGATION

2. Beginning in September 1964 all pupils and 
personnel in grades 4 , 5 , 6  and 7 will be desegragated in 
the same manner in which grades 8, 9, 10, 11 and 12 are 
desegregated as set forth above.

3. In September 1965 all pupils and personnel in 
grades 1, 2 and 3 shall be desegregated in the same manner 
in which the other grades are desegregated as set forth 
above.

4. As each category of grades is desegregated, 
all school sponsored, school related, school supported, 
school sanctioned extra-curricular school activities shall 
be open to all qualified students without regard to race 
or color. No school activity shall receive school sup­
port, sanction, direction, or approval, which is limited
to students of one or the other racial group.

^ 5. As each category of grades is desegregated, 
all in-service training courses for teachers, principals, 
supervisors, counselors, and special teachers shall be 
opened to all qualified teachers without regard to race 
or color.

6. Special teachers and counselors, as well as 
regular teachers, will be assigned to their specialties 
or supervisory positions without regard to race or color.

7. Defendants are free to speed up the desegre­
gation process whenever, in their judgment, additional 
grades or activities should be desegregated and teachers 
reassigned without regard to race.



150-c
PLAINTIFFS PROPOSED PLAN OF DESEGREGATION

8. The court will retain jurisdiction of this 
cause to secure full implementation of this plan and the 
governing constitutional principles.

Respectfully submitted,

E. E. MOORE, JR.
Suite 201
175 Auburn Avenue N.E. 
Atlanta, Georgia

DONALD L. HOLLOWELL 
Cannolene Building (Annex) 
859-1/2 Hunter Street N.W. 
Atlanta, Georgia

CONSTANCE BAKER MOTLEY 
JACK GREENBERG 
10 Columbus Circle 
New York 19, New York
Attorneys for Plaintiffs

A. T. WALDEN
Of Counsel

(Proper Certificate of Service attached)