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.

Appellants

A. C. LATIMER, et al.

A ppellees

VOLUME II

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

Georgia, Atlanta Division



I N D E X

(Volume II)

Page
HEARING ON MOTION FOR FURTHER RELIEF . . . . . .  151

Testimony of Dr. John W. Letson:
Direct Examination ..................  . 152
Cross Examination . . . . .  ..........  203Redirect Examination . . . . . . . . . .  211

Testimony of Mrs. Lottie Harris:
Direct Examination . . . .  ............  212
Cross Examination....................  217

ORDER OF COURT......................  23^
ORDER ......................................... 237

HEARING ON MOTION FOR FURTHER RELIEF ..........  238

ORDER OF COURT ON PLAINTIFFS’ MOTION FOR FURTHER 
RELIEF . . . . . . . .  ............  . . . . . .  289

NOTICE OF APPEAL TO COURT OF APPEALS . . . . . .  295

PLAINTIFFS' AMENDED DESIGNATION OF CONTENTS
OF RECORD ON APPEAL ........................... 296
PLAINTIFFS' FURTHER AMENDED DESIGNATION OF
CONTENTS OF RECORD ON APPEAL . . . . . . . . . .  299



151

HEARING ON MOTION FOR FURTHER RELIEF 
(Same Title)

Atlanta, Georgia; July 3 1* 1962.
Before

Honorable FRANK A. HOOPER, Judge

Appearances:
For Plaintiffs: Mrs. Constance Baker Motley

Donald L, Hollowell 
E. E. Moore, Jr.

For Defendants: Newell Edenfield
A. C. Latimer

THE COURT: Any motions before I call the calen­
dar? Parties ready to proceed in Vivian Calhoun, 
et al, against Latimer, et al? All right, you 
may proceed for the Movants.
MR, EDENFIELD: Your Honor, might I state one
thing to the Court before we start? I was, as I 
just explained to Mrs. Motley, I was not on the -- 
did not know if it is true we were supposed to 
respond to their proposed findings of fact and 
conclusions of law. I have not filed any written 
response. I just told her, if the Court expects 
a response to each paragraph of it, we are pre­
pared to give it, but I have not prepared a writ­
ten response to it other than a very brief response



Hearing on Motion for Further Relief 152.

saying we simply oppose it.
THE COURT: I think I was in error in allowing
ten days to each side, I think that twenty days 
will be —  ran it beyond today, didn’t it?
MR, EDENFIELD: Yes, sir. Today is the tenth
day. I will be glad to file it, if Your Honor 
feels it is in order.
THE COURT: I didn’t notice it at the time. I
think it will be satisfactory under the circum­
stances for you to state your response at the 
appropriate time this morning, for the record. 
MR. EDENFIELD: All right.
THE COURT: You may proceed for the plaintiffs.
MRS, MOTLEY: We would like to call Dr. Letson,
Your Honor.
THE COURT: All right.

000

DOCTOR JOHN W. LETSON
having first being duly sworn, and called as a 
witness in behalf of the plaintiffs, testified 
as follows:

DIRECT EXAMINATION
BY MRS. MOTLEY:
Q Dr. Letson, will you please state your full name and 

position for the record.
A John W. Letson,* Superintendent of Schools in Atlanta.



Hearing on Motion for Further Relief 153

Q, Dr. Letson, do you recall that on May 2 1, 1962, of this 
year, the plaintiffs' attorneys took your depositions?

A Yes, I do.
Q, Have you had an opportunity to read over your deposition?
A Yes.
Q, Did you sign the original? Do you recall?
A Yes, I did.

MRS. MOTLEY: Your Honor, we would like to
offer the deposition of the Superintendent in 
evidence for the admissions contained therein.
THE COURT: I think that's all right. Is there
any portion of it that's objected to? I'll 
consider the entire deposition if -- 
MR. EDENFIELD: I don't believe there was an
objection in it, Your Honor.
THE COURT: No, and counsel for either side may
use any portion of it that they see fit.

BY MRS. MOTLEY:
Q, Dr. Letson, do you recall that during the course of

your deposition I asked you about the applications for 
transfer in May, 1961?

A Yes.
Q I'd like to show you this sample application for trans­

fer and ask you if this is the application which you 
used in May, 1961?

A Yes, it is.



Hearing on Motion for Further Relief 15^.

Q Does that application request the race of the applicant? 
A It has the blank on the form; yes.
Q, For the race of the applicant?
A Yes.

MRS. MOTLEY: We’d like to have this marked and
we would like to offer that in evidence, Your 
Honor.
THE COURT: It's admitted.
CLERK: Plaintiff’s Exhibit No. 1, marked
"admitted".
THE COURT: May I make this suggestion in the
interest of time? Mrs. Motley, you filed here 
on July 20th plaintiffs’ proposed findings of 
fact and conclusions of law. And looking through 
that, I find a great deal of matter which I 
think that there will be no objection to, no 
issue concerning it, and I wonder if Mr. Eden- 
field could give us which portions of those 
proposed findings of fact he objects to? I can 
see now that a great deal of your evidence is 
going to be matter which I do not believe will 
be in dispute, and your findings covered thirty- 
five individual findings. Would it not be a good 
idea to let Mr. Edenfield run through here and 
see what he admits?
MRS. MOTLEY: Yes, Your Honor.



Hearing on Motion for Further Relief 155

THE COURT: Suppose we do that at this time.
MRS. MOTLEY: Excuse me, Your Honor.
THE COURT: Yes.
MRS. MOTLEY: I wanted to say what I was doing
at the moment was not going over each of those 
individually, hut I was going to offer certain 
documentary evidence which we received from the 
Superintendent in support of those, and -- 
THE COURT: Have you -- have you shown those to
opposing counsel?
MRS. MOTLEY: Well, I believe you've seen what
Mr. Latimer has given us, haven't you?
MR. EDENFIELD: I don't believe there's anything
I don't know about. There's a plat for one thing. 
THE COURT: Well, you see, we didn't have an op­
portunity to pre-try this matter, so just pro­
ceed, and just put your documents in. You 
needn't go into the contents of them when you 
introduce them, but just put all your documents 
in evidence.
MRS. MOTLEY: Yes, sir.
THE COURT: It'll be all right.
MR, EDENFIELD: Shall I state our position on
these paragraphs, Your Honor? The first part of 
these proposed findings of fact, we can move 
through very quickly because frankly, it's just



Hearing on Motion for Further Relief 156.

a history of this proceeding. We have no objec­
tion to paragraph 1.
THE COURT: Yes, sir.
MR. EDENFIELD: We have no objection to paragraph
2 , 3 , 4 , 3 , 6, 7 . In connection with paragraph 
8, we have no objection to it. We would like to 
point out this, however. Part of her attack in 
this motion is aimed at the Atlanta plan itself, 
and she would seek to overturn that plan and 
substitute one which she proposes. I would like 
to point out that according to her own findings of 
fact, this plan was approved. The same objections 
were made by her then that are made now. Permis­
sion was given to her to appeal, and no appeal 
was taken, and paragraph 8 discloses that fact.
THE COURT: All right, sir.
MR. EDENFIELD: So I take the position as far as
this plan is concerned and as far as any broad­
side attack on it, that it<s final.
THE COURT: All right.
MR. EDENFIELD: Number 9, we have no objection to.
That shows an appeal was filed and withdrawn.
10, we have no objection to. That concerns a re­
port of the Sibley Commission. 11, we have no 
objection to. The Court implements the plan, puts 
it into effect in 6l. 12, no appeal was taken



Hearing on Motion for Further Relief 157.

from this order. We have no objection. 13

relates to the repeal of the school law. We
have no objection to that. 14, of course, merely
details some of the contents of the plan. We
have no objection to that. 15 recites how many
applied for transfers in 1961 and how many were
granted, negro and white. We haven't checked
them, but I am sure those figures are correct,
and we have no objection to that, 16 has to do
with how many were granted and how many were
denied. 17 alleges or states as a finding of
fact that negroes seeking transfers in 1961 were
given additional tests which were not applied to
all white children or all children in the school

•f*room. We have no objection that, if the CourtA

takes into account the fact -- and I don't think 
there's any dispute about it -- that for the year 
1962 that is no longer true. Before this motion 
was filed, if the Court please, for the year 1962 
we had changed that and gave no separate tests 
to negroes. We simply considered transfers on 
the basis of tests given to everybody in the room 
throughout the school system. What she states, 
however, is and was true for the year 1961. It 
has been abandoned and abolished, however, prior 
to the school year 1962, and prior to the time this



Hearing on Motion for Further Relief 158.

motion was filed. Paragraph 18, we have no ob­
jection to. It relates to the interviews which 
were required in connection with transfers. 19, 
we rather object to the form of it in a finding 
of fact, 19 is more like an allegation. It says, 
"The plaintiffs contend that the criteria of the 
plan should have been applied in the assignment, 
transfer and continuance of all pupils."
THE COURT: That’s a contention. You don't have --
factually, it's all right, I assume, as far as the 
facts are concerned. Is that correct?
MR. EDENFIELD: We don't agree that that is cor­
rect, if the Court please. We say in fact that 
paragraph 19 is in conflict with the direct lan­
guage of the plan itself. The plan itself, it 
says that all existing assignments shall be con­
tinued until an application for transfer is filed. 
THE COURT: Now frankly, on that point I am not so
clear as to plaintiffs' contentions. The plan 
applies to all new students applying to enter the 
schools, and applies to all, of course, who are 
already in, who wish to transfer and it assumes 
that all students who are in a certain school will 
remain in that school -- 
MR. EDENFIELD: Yes, sir.
THE COURT: -- unless there's some good reason to



Hearing on Motion for Further Relief 159.

change it.
MR. EDENFIELD: Yes, sir.
THE COURT: But I'll hear further from plaintiffs'
counsel on that. If the —  If the regulations con­
cerning assignment of a new pupil and concerning 
the transfer of one who is in school are non-dis- 
criminatory, I do not quite see myself how they 
are rendered invalid by virtue of the fact that 
they only apply to new students and to transfer 
students, --
MR. EDENFIELD: Yes, sir.
THE COURT: -- because they give the right to any 
student who is applying as a new student or who 
wishes to transfer, the right to do so. Now it 
seems to me that any student who does not express 
a preference would be assumed to be satisfied to 
stay in the same school in which they originally 
were. I just say that in passing. All right.
Now as to 2 0.
MR. EDENFIELD: As to 2 0, we have no objection.
It merely refers to the number who applied in 
1962 and the number which were granted. 21, I 
think -- I haven't read it carefully, but I think 
it concedes that a different test was applied in 
'62, and we have no objection to that. In other 
words, for the year '62, we didn't give negroes



who applied or anybody else who applied any par­
ticular test different from the others. We 
simply used the tests given everybody as —
THE COURT: Yes.
MR. EDENFIELD: -- I explained a while ago.
THE COURT: Yes.
MR. EDENFIELD: Yes. On the next page, 2 1, it
says, "In 1962, the applicants for transfer were 
not given any special tests." so that straightens 
that out, 22 refers to the pursuit of adminis­
trative remedies, and for the most part is a reci­
tation of the history of those administrative ap­
peals. I don't think that's too pertinent here.
Now with 2 3, if the Court please, we get to some 
areas where there will be some disagreement. 23 
first says, "It is understood that the criteria of 
the plan have not been applied to new students 
entering grades 10, 11 and 12 of the Atlanta 
School System." Let me say, if the Court please, 
that is true. The reason they have not been ap­
plying, and frankly, I am not sure whether they 
should have been, but the plan says that applica­
tions for transfer under the plan can only be filed 
between May 1 and May 15* and the Board, as I un­
derstand it, was of the opinion that these appli­
cations for transfer, which if somebody came in

Hearing on Motion for Further Relief l60.



Hearing on Motion for Further Relief 161

here at Christmastime or January from Chattanooga 
or something, they felt like under the plan they 
could not apply.
THE COURT: That's not a transfer, if they came
here from Chattanooga. That’s a new application. 
MR. EDENFIELD: Yes, sir. But she said that the
criteria have not been applied to new students 
entering, and that’s true, unless they came in at 
such a time as to apply between May 1 —
THE COURT: Aren’t you confusing the procedure
with substance? I assume that the qualifications 
of somebody coming here from Chattanooga to enter 
a certain grade would be considered on the merits, 
MR. EDENFIELD: That's right.
THE COURT: —  but the time for coming in is an­
other matter. Which one do you refer to?
MR, EDENFIELD: She simply says that the criteria
of the plan —  suppose for example in March a 
student transfers here from Chattanooga. He 
brings with him his tests from Chattanooga and a 
transcript of his school record, and it is con­
sidered and he is assigned to school. But he is 
not required to file an application and take the 
tests that are given to someone seeking a transfer 
from another school in the same system. If that's 
what she means by this allegation, she's correct.



Hearing on Motion for Further Relief 162

We do not give them the same tests. We do not 
apply the criteria of the plan to a student com­
ing in here in mid-year, for example.
THE COURT: Well, what’s done? Are they assigned
to some particular school?
MR. EDENFIELD: Yes, sir. I will assume that the
same criteria generally applied that the plan 
contains. They consider the student’s record, 
history, whatever tests he brought with him —
Dr. Letson can explain that perhaps better than 
I can —  but at any rate, we do not require one 
of these forms to be filled out and we do not 
give them the same tests as a transfer student 
and I think that’s what she alleges.
THE COURT: Well, do they, as to new students
coming in during the school year, apply the same 
criteria to both white and colored?
MR. EDENFIELD: Yes, sir. I am sure.
THE COURT: All right.
MR. EDENFIELD: Yes, sir. The next thing she
alleges that we do not apply the plan to negro 
students seeking to transfer to other negro 
schools or to white students seeking routine 
transfers to other white high schools, based on 
changes of residence and so forth. Now —  now, 
Your Honor, that in some instances may be correct



Hearing on Motion for Further Relief 163

and in some instances may be incorrect. Dr.
Letson can explain it, for example -- 
THE COURT: Paragraph 2 3?
MR. EDENFIELD: Yes, sir. This is still 2 3.
THE COURT: All right.
MR. EDENFIELD: I cite as a particular example the
case of Miss Melkild, who sought a transfer from 
a white high school to another white high school, 
and we did apply exactly the same criteria as in 
all other cases. Now I will say this, in answer 
to that and to this extent we may, if it be an ad­
mission, there come times in Atlanta as in all 
school systems when, because of population shifts, 
sometimes you have to move whole bodies of stu­
dents, as is mentioned in a later paragraph of her 
findings of fact; and that*s been done in two or 
three areas dealing particularly, if the Court 
please, with grades to which this plan is not yet 
applicable. In other words, we have schools in 
the same area where we have vacant classrooms or 
a very small class load in one school in the same 
general area, we will have other schools that are 
highly crowded, particularly on the basis of try­
ing to make the best out of available space, some­
times we transfer whole grades from one school to 
another, on the motion of the Board; not by any



Hearing on Motion for Further Relief 164

application of any student, and it —  if that’s 
what she means, it is true that we have transferred 
them, whites to other white schools, negroes to 
other negro schools, although we no longer desig­
nate them as such in any case. In the grades to 
which this plan is not yet applicable, we have 
transferred whole bodies of students from one 
school to another to make the best use of the 
space that is available. And in doing so, we have 
not applied the criteria of the plan. We have not 
required formal application for transfer. It was 
done on motion of the Board, All right. She next 
says that the requirements and criteria of the 
plan are not applied to white or negro students 
continuing in the same high school to which they 
had been assigned in i960. Well, that's the same 
contention she made a while ago which really is an 
attack on the plan itself, because what she is say­
ing is that each child in the whole room should be 
examined, not merely the ones seeking to be trans­
ferred to that room. In other words, she’s saying 
we should examine everybody for their initial as­
signment. Well, of course, that's in direct con­
flict with our plan which says that existing assign­
ments shall remain the same until and unless an ap­
plication for transfer is filed. That’s the same



Hearing on Motion for Further Relief 165.

point she has made previously. Now I believe the 
balance of 23 is simply a summary of her previous 
contentions, and require no further explanation 
from me. In 2 4, she says, "It is also undisputed 
that defendants have continued to maintain and 
operate 72 elementary schools limited to attend­
ance by white pupils; 4l elementary schools lim­
ited 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 stu­
dents." Well, what she refers to there as elemen­
tary schools are those grades to which our plan has 
not yet reached. Insofar as she refers to high 
schools, we say that her statement is obviously 
incorrect, because it shows that according to our 
plan the high schools are in the process of being 
desegregated. And when she says we are operating 
high schools wholly for white students, that’s, we 
say, not correct; and that as the plan proceeds, 
it will move on down into the elementary schools. 
Now 2 4, if the Court please, 24 is the one I just 
—  25, has to do with transfers of personnel or 
integration of personnel or, well, to put it in 
her language, "there has been no change in the 
policy of assigning white professional personnel



Hearing on Motion for Further Relief 166

such as teachers, principals, and supervisors to 
the 89 white schools and negro personnel to negro 
schools." Now if the Court pleases, she’s correct 
as far as that's concerned. We have made no ef­
fort to do that. It is the considered opinion of 
the Atlanta Board, and it is our position that in 
any orderly process of integration, the first step 
is to start integrating the pupils, and that the 
last step after that is done would be the inte­
gration of teachers. And that's been accepted as 
a necessity by the Board, and is not inconsistent 
with the plan approved by this Court, and it is 
the position of the Board that it will be reached 
last and not at this time, until the integration 
of the grades and the pupils has been accomplished. 
THE COURT: I believe this class action was brought
only in behalf of pupils.
MR. EDENFIELD: Yes, sir. We mentioned that, you
remember, at the time of trial. There are no 
teacher plaintiffs here. 26, we have no objec­
tion —  I don't know that the figures are correct. 
Frankly, I thought there were a few more pupils 
than that. She says 106,00 0, but assuming her 
figures are correct, we have no objection. 27, she 
says, "43 more schools have been allocated to white 
use than to negro use," and she sets up the popu­



Hearing on Motion for Further Relief 167

lation of white children against the population of 
negro children. We say that's not true. Your 
Honor. We no longer designate them as white or 
negro, and of course, it'll be, as far as elemen­
tary schools are concerned, it will be a few more 
years before desegregation reaches them. But we 
do not allocate them, and frankly in the building 
of new schools and designations of old schools, 
we no longer refer to them as white or negro 
schools in any case. And all the literature of 
the Board of Education has been changed to so in­
dicate, All of those records have been so changed. 
Now in paragraph 2 8, if the Court please, the first 
part of it I think itJs correct. I don’t think we 
have any objection to it. She is referring to 
these mass transfers I referred to a while ago 
which are based upon best use of available space. 
For example, she says, since i960, for example, 
Mayson Elementary School —  well, she says, since 
i960, several elementary schools were converted 
from white to negro use. One such conversion was 
Mayson Elementary School in January, 1961. That's 
true, Your Honor. Our records, as Mr. Letson 
points out, do not indicate that that was done on 
any basis of race, although it is an elementary 
school, and not yet subject to this plan. It was



an effort to make the best use of space, and it 
was done on the basis of overcrowding. So there 
was a mass transfer from one school to another, 
and admittedly in those situations we didn't re­
quire each student to file an application for trans­
fer. Now she says, "In September, 1962, Margaret 
Fain Elementary School will be converted," or the 
school body changed, and that's true. But again, 
it's an elementary school which is not yet subject 
to the plan.
THE COURT: Well now, you say "converted to negro
use" there, they say; does that mean that it 
previously was occupied by whites?
MR. EDENFIELD: Yes, sir.
THE COURT: I see.
MR. EDENFIELD: Now in fact, it was. We say that
we made the change not on the basis of race but 
on the basis of space. But it never —  it is 
true that previously those attending those schools 
were white, and that those attending them now are 
colored. But we say that that was not our motive, 
although the plan has not yet reached these grades. 
We still say our motive was simply making the best 
use of available space.
THE COURT: Now, when you do that, dc you generally
follow geographical lines or areas?

Hearing on Motion for Further Relief 168.



MR. EDENFIELD: Your Honor, I>11 let Dr. Letson
answer —
THE COURT: All right.
MR. EDENFIELD: —  about geographical lines. But
the answer is, we don't have any rigidity, as such. 
THE COURT: I see.
MR. EDENFIELD: There may come a —  the time when
we may ask the Court to let us put in some; but at 
this time we have no rigid attendance zones.
THE COURT: All right.
MR, EDENFIELD: We have certain general areas.
There is one thing in paragraph 2 8, the last sen­
tence, she says, "The proposed new 26 million 
dollar school bond issue provides for the alloca­
tion of $16,000,000.00 for the building of negro 
schools." That may have been referred to in the 
press and may have been referred to by somebody 
in a speech, but as far as we are concerned, we no 
longer build negro schools. We are building 
schools, and our records so indicate.
THE COURT: All right.
MR. EDENFIELD: Paragraph 29 has again to do with
teacher ratio, and I don't think that we have any 
objection to that. I'm sure the facts she cites 
are true. I've not checked them, but whatever the 
facts are, we have no dispute with them. In para­

Hearing on Motion for Further Relief 169.



graph 30, she makes the point that the forms to 
which she just —  about which she just asked Dr. 
Letson make reference to race, as one of the ques­
tions. That *s true. I believe the facts will 
show they were prepared before Dr. Letson came to 
Atlanta, but I don't know that that makes any 
difference, but they do have "race" on them. In 
31, she said that, "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." We say flatly that is not true, Your 
Honor. Now in answer to it, perhaps in anticipa­
tion, Mrs. Motley has asked us to produce a map.
The map which she's asked us to produce is a popu­
lation study, not gotten up by the Board, but 
here's what happened. The Board sent out to prin­
cipals in each school and told them to take their 
school population, white or colored, whatever the 
color of the students, and delineate where they 
come from.
THE COURT: Well, now you are going to put evidence
in on that?
MR. EDENFIELD: Yes, sir.

Hearing on Motion for Further Relief 170.



THE COURT: We might save that.
MR. EDENFIELD: All right, sir. The explanation
of that map, what I'm saying is, it was not a map 
promulgated by the Board of Education in any event. 
It was in fact furnished to them.
THE COURT: All right.
MR. EDENFIELD: And it was not used for the pur­
pose of assigning children, if that's what Mrs. 
Motley is talking about. Now 32 -- oh, we further 
say there are no rigid or inflexible attendance 
lines or zones.
THE COURT: All right.
MR. EDENFIELD: 32 states, "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." In fact, that is true. It was not as­
signed on any basis of race, however. That situa­
tion existed. That again deals with personnel or 
teachers or area superintendents. In fact that is 
correct, however. "All extra-curricular activities 
are still operated on a racially segregated basis." 
If it please the Court, we flatly say that is not 
correct. In school dances, basketball games,
P. T. A .s —  Dr. Letson can enumerate the things to 
which negroes are permitted to attend, and which

Hearing on Motion for Further Relief 171.



they have and do attend.
THE COURT: All right.
MR. EDENFIELD: And many if not all of the school
activities are now integrated. 3^ says, "Neither 
the defendant Board nor the Superintendent has 
ever sent any written communication to the parents 
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."
I think that's true. We never invited transfers 
and don't feel that we are called upon to do so.
THE COURT: You think they read the newspapers,
aye?
MR. EDENFIELD: Yes, sir. I think it's pretty
well known around here, Your Honor.
THE COURT: All right.
MR. EDENFIELD: 33 says, "Defendants presently
have no plans for integrating the dual system of 
negro and white schools into a unitary non-racial 
system." Well, we think we do have a plan, Your 
Honor, and we thought the Court had approved a plan. 
Now if I may, without taking any time to argue at 
this time, there is one other part of our position 
which I would like to state and it may be getting 
over into the area of conclusions of law, but I 
will take one second if I may to explain our

Hearing on Motion for Further Relief 172.



Hearing on Motion for Further Relief 173.

position about it. First, our defense in this 
case to this motion is that we have a plan. That 
we have fairly administered it in good faith to 
the best of our ability. Second, we say that the 
attack made upon the plan on —  in this motion 
takes two prongs. One of those prongs constitutes 
an assault upon the substance of the plan itself.
The plan was approved by this Court as being fair. 
I'm not talking about the administration of it now. 
I'm talking about its provisions, its substance.
Mrs. Motley at that time made every —  and I have 
gone back and culled them from the record and can 
quote them to Your Honor -- she made every objec­
tion then in opposing this plan that she makes now, 
and at an appropriate time I can read you in quota­
tions what she said and give you the page where it 
came from. Over those objections at that time the 
Court finally approved the plan. Thereupon the 
plaintiffs sought and received permission to appeal. 
They actually filed an appeal on one point and 
later withdraw —  withdrew it. We say that in no 
case that has come to our attention has a Court 
gone back and uprooted completely a plan which has 
been found to be fair; which has been in practice; 
and where the judgment has become final; and which 
has been in force for two years. I have found no



Hearing on Motion for Further Relief 174

such case. I've found a case where they tried to 
do it and the Court not only didn't do it but con­
firmed the lower court. I will mention that later. 
Their second contention is, and the second prong 
of their attack is that the plan has not been 
fairly administered. Now with respect to that, we 
say that we have administered it and we say that 
every attack we have found on such plans as not 
being fairly administered required the presence of 
a named defendant whose application had been denied. 
In fact, of all the cases cited by movants in this 
case, almost half of them involve complaints that 
a plan was not being fairly administered, and in 
each case, if the Court please, the suit was by 
named plaintiffs who had made application for 
transfer, whose application had been denied; and 
they said that, in the denial of the application, 
the plan was being unfairly applied. So we say 
that if that is the attack she seeks to bring, she 
will have to bring some specific plaintiff whose 
application has been denied and prove that fact.
I believe that covers our contentions, if the Court 
please.
THE COURT: All right. I think you have narrowed
the issues a great deal.
MR. EDENFIELD: Oh, if the Court please, I gave to



Hearing on Motion for Further Relief 175

Mrs. Motley a while ago a -- we have prepared and 
Dr. Letson has sworn to an affidavit which I'd 
like to tender. I have given Mrs. Motley a copy. 
It responds paragraph by paragraph, if the Court 
please, to the allegations of the original motion. 
I told Mrs. Motley if she wanted to cross examine 
Dr. Letson about its contents, he's of course in 
Court. I beg your pardon. That's the wrong docu­
ment I gave you.
CLERK: You gave me the response.
MR. EDENFIELD: Well, I've just given it -- I
don't think we need to hand it in.
CLERK: You want that filed?
MR. EDENFIELD: No, I don't think so.
THE COURT: Well, Mrs. Motley, that eliminates a
large amount of evidence here. You may proceed 
to examine Dr. Letson.
MRS. MOTLEY: Yes. I would like to proceed, Your
Honor, with the introduction of certain documen­
tary evidence which —
THE COURT: You may put your documentary evidence
in as you see fit.
MRS. MOTLEY: So that the record may be completed.
CLERK: The affidavit of Dr. John W. Letson is
marked Defendant's Exhibit 1 .
THE COURT: That's admitted.



Hearing on Motion for Further Relief 176.

BY MRS. MOTLEY;
Q Dr. Letson, I'd like to show this application for ad­

mission, assignment or transfer, and ask you if that is 
a 1962 application for admission, assignment or trans­
fer.

A Yes, it is, with the comment that we did not require a 
notary —  notarization of the application.

Q You also struck out a requirement of the name of the 
mother's employer, the name of the father's employer, 
and the name of the employer of the legal guardian of 
the applicant?

A Yes.
MRS. MOTLEY: I'd like to offer that in evidence,
Your Honor.
THE COURT: It's admitted.
CLERK: Plaintiff's Exhibit 2 .

BY MRS. MOTLEY:
Q You recall, Dr. Letson, don't you, that on your deposi­

tion you were not certain of the exact number of schools 
in the system, exact number of negro elementary schools, 
white, and so forth, and you agreed to furnish that 
information?

A Yes.
Q I will show you that sheet of paper and ask you whether 

you furnished that information to us regarding the cor­
rect number of schools.



Hearing on Motion for Further Relief 177

A Yes.
MRS. MOTLEY: This document, Your Honor, shows
the number of negro and white schools and number 
of integrated white schools and so forth.
THE COURT: It»s admitted. 3 .
CLERK: Plaintiffs' Exhibit No. 3 .
MR. EDENFIELD: Does it refer to them as "negro"
and "white" schools, if I may inquire?
MRS. MOTLEY: Yes, it does.
MR. EDENFIELD: Well, if it makes any reference to
them being assigned on that basis —  if they are 
talking about in fact who attends it, we have no 
objection but --
THE COURT: Well, any conclusions she might have
made are not admitted. Of course, the document 
will speak for itself.
MR. EDENFIELD: All right, sir.

BY MRS. MOTLEY:
Q, Now Dr. Letson, I believe we asked you on your deposi­

tion the procedure which was followed with respect to 
the assignment of students in 1961. Do you recall that 

A Yes.
Q And I believe you subsequently sent to Mr. Moore a let­

ter setting forth that procedure in writing?
A Right.
Q, Is that a copy of the letter you sent to Mr. Moore?



Hearing on Motion for Further Relief 178

A Yes, it is.
MRS. MOTLEY: We would like to offer this in evi­
dence, Your Honor.
THE COURT: It's admitted.
MR, EDENFIELD: Let me see that.
MRS. MOTLEY: Sure.
MR. EDENFIELD: I don’t know that I've ever seen
it.
MRS. MOTLEY: Sorry.
MR. EDENFIELD: No objection.
MRS. MOTLEY: We would like to offer this.
CLERK: Plaintiffs’ Exhibit 4 marked "admitted."
MR. EDENFIELD: What’s the number of that, Mr.
Clerk?
CLERK: Number 4 .

BY MRS. MOTLEY:
Q, I would like to show you these two mimeographed docu­

ments, Dr. Letson, and ask you if you are familiar with 
those.

A Yes.
Q Will you please indicate what the first one is?
A Administrative regulations relating to the implementa­

tion of the pupil placement plan.
Q, Was that a regulation adopted by the Board?
A I’m not certain, Mrs. Motley, that it was officially

adopted. It was presented to the Board for information.



Hearing on Motion for Further Relief 179

Q Was that procedure —
A I don’t think --
Q, I’m sorry.
A —  that it was adopted.
Q Was that a procedure which you followed?
A In 1961j yes.

MRS. MOTLEY: We would like to offer this first
one, Your Honor.

BY MRS. MOTLEY:
A Now would you explain this —

CLERK: Plaintiffs’ Exhibit 5 .
THE COURT: That’s admitted.
MRS. MOTLEY: 5 .

BY MRS. MOTLEY:
Q Would you explain what the second one is please, Dr. 

Letson?
A Also a report for general information about the imple­

mentation of the pupil placement plan in 1961.
Q Was that document prepared under your supervision?
A Yes.
Q Or by you?
A Prepared under my supervision.

MRS. MOTLEY: We would like to offer this.
THE COURT: 6. Plaintiffs' 6. It’s admitted.
MR. EDENFIELD: Mrs. Motley, may I see that?
MRS. MOTLEY: Yes, sir.



Hearing on Motion for Further Relief 180

MR. EDENFIELD: I don’t know that I've seen it.
I'm sorry. Go right ahead. I just —

BY MRS. MOTLEY:
Q Now Dr. Letson, on your deposition -- 

CLERK: Excuse me. Don't get --
MRS. MOTLEY: Excuse me.
CLERK: —  too far ahead of me.
MRS. MOTLEY: Yes.
CLERK: Number 6 identified.
MR. EDENFIELD: I have no objection to this. Is
it clear that this concerns 1961?
MRS. MOTLEY: Yes, I think --

BY MRS. MOTLEY:
Q Dr. Letson, that's a report of the disposition of the 

applications made in May, 1961, is it not?
A That's correct.
Q, You recall, Dr. Letson, on your deposition that we re­

quested you to give us information regarding the 
capacity of each school in the Atlanta Public School 
System, the enrollment in each school, the teacher- 
pupil ratio of each school?

A Yes.
Q, Let me show you this document. You can disregard the —

what's written in pencil —  and ask you if you furnished 
us with that information regarding the capacity of each
school.



Hearing on Motion for Further Relief 181.

A Yes, we did.
Q Now, I*d like to show you this second document and ask 

you to explain what it is, please.
A It’s a report of average daily attendance presented as 

an official part of our Board agenda; gives additional 
information; the number of teachers and the number of 
pupils.

Q Now it shows, does it not, the enrollment in each school 
for 1961?

A Yes.
Q It shows, does it not, the enrollment in each school 

for 1962?
A Yes.
Q Will you explain what these initials stand for, "ENR"?
A Enrollment.
Q And what does "Ar" stand for?
A it»s the —  it»s the number of pupils actually on roll 

at that particular time in that -- active roll is the 
term.

Q Active roll?
A Enrollment includes the total number of students that

have been enrolled in that school anytime during the 
school year. Active roll indicates the number that are 
actually enrolled at the time this report was made.

Q, All right. Now would you explain what this enrollment 
means here, load regular teachers?



Hearing on Motion for Further Relief 182

A Means the number of pupils for each regular teacher in 
that particular school.

Q Now I will show you the first document again and say 
to you that I have transposed from that document, the 
second one, the average enrollment for each school for 
1962; the enrollment for 1962 and the teacher load as 
shown on there, and have identified the negro elementary 
and high schools. You want to look at that and see if 
that --

THE COURT: Call that Exhibit 9 .
THE WITNESS: I'm not sure that I know what you
want me to do with that.

BY MRS. MOTLEY:
Q Well, all I'm saying, I want you to look at this and

say whether these are the negro schools. I have put an 
"n" next to each one of them and I want you to look at 
these figures and see if they are substantially correct. 
That is, I transposed them to this document.

MR. EDENFIELD: Your Honor, may I interpose an
objection to one part of this line of testimony?
We have no objection to these figures. I think we 
furnished them. But insofar as she discusses the 
fact that this plan is being described —  applied 
in a discriminatory manner, insofar as elementary 
schools are concerned, and anything below the 
eleventh grade, the plan hadn't reached them yet;



and I don’t think they would be pertinent or 
relevant. Now insofar as she seeks a broadside 
attack on the whole plan itself, that may be rele­
vant, if she’s allowed legally to make that at­
tack. But I would like to make that distinction. 
THE COURT: Well, the last paper is a conclusion
that Mrs. Motley got up from the other two ex­
hibits, Plaintiffs' 7 and 8. In the interest of 
time, you might would give Dr. Letson more time 
later on —
MRS. MOTLEY: Yes.
THE COURT: —  to study that. You have merely
taken other papers and transposed them and put them 
in a different form, have you not?
MRS. MOTLEY: Well, I have used one of the papers
which he gave me, Your Honor, which shows the 
capacity of each school, and then I have taken the 
figures from the second paper which shows the en­
rollment and put the enrollment figures next to 
the capacity, and that’s all I have done, and I 
think —

BY THE COURT:
Q Well, Dr. Letson, unless you can readily make that com­

parison, we’ll let you do it later on.
A It seems substantially correct, Your Honor.

Hearing on Motion for Further Relief 183.

THE COURT: All right.



Hearing on Motion for Further Relief 184.

MR. EDENFIELD: Well, the point I was making --
THE COURT: Yes, I understood your point. I would
rather put the evidence in and -- and rule on the 
effect of it later.
MR. EDENFIELD: Yes, sir. A lot of these inequi­
ties will solve themselves as the plan proceeds. 
THE COURT: I understand.
THE WITNESS: I would like to make a further com­
ment. I’m not certain I can look at a list of all 
the schools in Atlanta without some further in­
vestigation, indicating which ones are attended 
entirely by negro students and which ones are at­
tended entirely by white students.

BY MRS. MOTLEY:
Q But you think this indication is substantially correct? 
A Substantially correct.

CLERK: Plaintiffs’ Exhibits 7 and 8 are marked
"admitted."

BY MRS. MOTLEY:
Q, I would like to show you this application for teaching 

position, Atlanta Public Schools, and ask you if -- 
if you are familiar with that document.

A Yes.
Q Is this the application filled out by persons seeking

teaching positions in the school system?
A I think that’s correct; yes.



Hearing on Motion for Further Relief 185

MRS. MOTLEY: We would like to offer this, Your
Honor.
THE COURT: It's plaintiffs' Exhibit 10?
CLERK: Yes, sir.
MRS. MOTLEY: I would like --
THE COURT: That's admitted.

BY MRS. MOTLEY:
Q, I would like to show you this document and ask you to 

explain what that is.
A It's an application prepared by the State Department

of Education, an application for certification.
Q Of teachers?
A Of teachers.

MRS. MOTLEY: I would like to offer this, Your
Honor.
THE COURT: It's admitted.
MR. EDENFIELD: I would like to see that. I
can't understand the purpose of it.
MRS. MOTLEY: The purpose of it is to show that
the race of the teacher is requested in applying 
for teachers.
THE COURT: Yes.
MR. EDENFIELD: By the State of Georgia?
MRS. MOTLEY: And by the Board of Education, City
of Atlanta.
THE COURT: All right.



Hearing on Motion for Further Relief 186.

CLERK: Mrs. Motley, I do not have Number 9 .
MRS. MOTLEY: Number 9, what would that be?
CLERK: That's the summary sheet you referred to.
MRS. MOTLEY: No, I didn't have a separate sheet.
I had only two. I transposed figures. There were
not three pages. There were two.
MR. LATIMER: Number 3?
CLERK: Plaintiffs' Exhibit 3 is tabulation of
number of schools and pupils.

BY MRS. MOTLEY:
Q Dr. Letson, I'd like to ask you this. The applicants 

who were denied admission in 1961 and who sought to 
exhaust the administrative remedy, as well as those who 
did not seek to exhaust the administrative remedy, do 
you know whether any of those students have been 
granted their applications for transfer for 1962?

A Yes, I think one, possibly has. I'm not positive.
Q Do you know how many administrative appeals are pres­

ently pending?
A Thirty-three, as I recall.
Q, Do you know how many persons denied admission in 1961 

took appeals?
A I think I'm correct that it was thirty-three.

MR. MOORE: Thirty-eight.
THE WITNESS: Thirty-eight. I beg your pardon.
Thirty-eight is correct.



Hearing on Motion for Further Relief 187

MR. EDENFIELD: Your Honor, for the record, I
would like to point out that insofar as those 
applications are concerned, I think Mrs. Motley 
would have to come with one of them as a complain­
ant in order to raise this issue. I don't think 
if their constitutional rights or any other rights 
have been interfered with, I think they'll have to 
make the complaint in character with their ap­
plication.
THE COURT: Well, I'll let all this evidence in.
I'll study over the effect of it —
MR. EDENFIELD: Yes, sir.
THE COURT: —  later on.
MR. EDENFIELD: All right.

BY MRS. MOTLEY:
Q Now Dr. Letson, in addition to the Melkll student —  

MRS. MOTLEY: I believe that's the name, is that
correct, Mr. Edenfield, the white student.
MR. EDENFIELD: Melkild.

BY MRS. MOTLEY:
Q In addition to that white student who applied for a 

transfer from Northside, I believe it was, because 
negroes were being admitted, do you recall that case?

A Yes.
Q All right. Are there any other white students to whom 

you have applied these criteria of the plan?



Hearing on Motion for Further Relief 188.

A No.
Q Now in order to clarify the record, I would like you to

explain briefly what procedure you used with respect to
applications for transfer in 1962.

A We accepted the applications; reviewed the records of
the students that applied for transfer; evaluated it -- 
evaluated them on the basis of their proximity to school 
and the academic ability as shown by the record and 
test scores that were a part of each pupil1 s record; 
we called a portion of those that applied to meet with 
an interviewing committee, and the interviewing com­
mittee prepared a report to me in terms of their recom­
mendations; and I in turn acted upon that recommendation.

Q Now we have in our proposed findings of fact, in May,
1962, approximately 266 negro students sought transfer to 
white schools. Is that substantially correct?

A Substantially so. I think the number is a little larger 
than that.

Q How much larger would you say?
A Around 3 0 0.
Q And how many of those negroes have been granted trans­

fers to white schools?
A Forty-four.
Q Have you had any requests from whites in 1962 to transfer 

to other white schools?
A During *6 2?



Hearing on Motion for Further Relief 189.

Q Yes, white students to other white schools.
A Informally, yes.
Q How many would you say, approximately?
A I have no idea. I couldn't —  I couldn't even guess 

how many, but I would —  50; 100.
Q Fifty or a hundred whites have sought transfer to other 

white schools?
A Is that sometime during the twelve months period?
Q Yes, that's what I'm getting at.
A I would say the number for negro students other than in

the plan itself has exceeded that number.
Q I didn't understand that.
A The number of negro students transferred or requesting

transfer from one high school to another other than 
during the period May 1 to May 15 in my judgment has 
exceeded the number of white students that have made 
the same request.

Q I see. You are saying that there were more negroes
seeking transfer from negro high schools to other negro 
high schools than there were whites seeking transfer 
from white schools to other white schools, is that 
right?

A It would be my judgment; yes.
Q Now in 1962, these 50 or 100 whites who sought transfer 

to other white high schools, you didn't apply any cri­
teria of the plan to them, did you?



Hearing on Motion for Further Relief 190.

A Not formally.
Q, Well, what did you do?
A We evaluated the reason that they were requesting a 

transfer and the educational justification therefor.
Q What else did you do?
A Determined the capacity of the school that they were

attending —  that they were requesting to transfer to.
Q, Anything else?
A That’s substantially it.
Q Now what did you do in the case of the negroes who 

sought to transfer to other negro schools?
A The same.
BY THE COURT:
q Dr. Letson, it isn’t real clear to me what you say,

whether you apply the same tests for transfer to whites 
and colored. Now you have enumerated all the tests 
given to colored for transfer and they are clearly 
enumerated in the plan which this Court has approved. 
You say as to whites transferring you did not apply 
that formally, but you also said that in regard to 
transfer of whites, you did consider the —  their edu­
cational ability, the capacity of the school and maybe 
other factors. Would you —  would you explain —

A Yes, Your Honor.
q —  whether or not these —  what you mean by you didn’t 

do it formally and would you explain what factor if any



Hearing on Motion for Further Relief 191

that you apply to the negro and not to the white in 
regard to transfer?
Your Honor, the pupil placement plan specifies that 
applications shall be submitted between the dates May 1 

and May 1 5. That application. Is the —  is the formal 
one that gives an opportunity to any pupil who wishes 
to request a formal transfer with the right of appeal 
to the Board of Education and beyond. He would utilize 
those dates as specified in the pupil placement plan. 
There are other assignments of both white and negro 
students for educational reasons and for reasons that 
are for the best interest of the pupils and the school 
system that come up at various times during the course 
of a year. And in some occasions it’s a matter of a 
particular educational purpose. Sometimes it's for the 
convenience of the parents. Sometimes it's for a com­
bination of reasons that attendance at another school 
would be preferred. Those have been given consideration 
by the school administrative staff in exactly the same 
way. Applying exactly the same criteria. The formal 
criteria contained in the plan was not applied in these 
requests that developed other than between May 1 and 
May 15. But from the standpoint of the school system's 
responsibility to do the best possible educational job, 
many of the criteria in the plan were applied to both 
white and negro students.



Hearing on Motion for Further Relief 192

Q, Now as to these intermediate and informal transfers,
did you or did you not apply the same criteria to white 
and colored?

A We did apply the same criteria to white and colored.
Q And those criteria, could you name those criteria?
A The reason that the student gave for requesting a trans­

fer. His educational ability and background in terms 
of test records that were a part of his permanent 
record, and educational judgment as to whether the re­
quest, for those reasons, would be educationally justi­
fied. We also took into consideration the capacity of 
the school, whether or not it was overloaded and over­
crowded. Whether or not for that reason the request 
should or should not be granted.

Q I assume that the reason you do that is that that stu­
dent who was being transferred had not seen fit to make 
this application back in May?

A Yes, sir. Many, many reasons for desiring a transfer 
develop at times other than May 1 and May 1 5.

THE COURT: All right.
BY MRS. MOTLEY:
Q Dr. Letson, I would like to show you this copy of the 

plan and call to your attention paragraph numbered 1 
which contains the criteria to be used in the assign­
ment, transfer or continuance of pupils among and within 
the schools or within the classrooms and other facil­



Hearing on Motion for Further Relief 193.

ities thereof and ask you to list the criteria which 
you applied to students seeking assignment, transfer or 
continuances indicated during 1961 and 1962.

A Available room. Availability of transportation. Effect 
of 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 the school. 
The scholastic aptitude and relative intelligence. Ef­
fect of the admission of the pupils upon the academic 
progress of other pupils. The effect of admission upon 
prevailing academic standards. Personal standards of 
the pupil.

Q The what?
A Personal standards of the pupil, in terms of overall

evaluation of personality in an interview. Of course, 
the request or consent of the parents or guardians on 
the basis that the application itself bore that request.

Q Now these criteria were applied to the applicants who 
applied between May 1 and May 15, 1961, and May 1 and 
May 15, 1962, is that correct?

A Yes.
BY THE COURT:
Q I notice, Dr., that you referred to transportation but

you didn't refer to residence or area where they lived.
Was that considered?



Hearing on Motion for Further Relief 191*.

A That is not a specific part of the plan, Your Honor.
Q No?
A We did very definitely take into consideration the

proximity of the applicant to the school that he was 
requesting to attend and the school that he was then 
attending.

THE COURT: I see.
BY MRS. MOTLEY:
Q Now you didn’t apply those criteria which you have

just enumerated to the whites seeking transfer to white 
schools at times other than May 1 to May 15, did you?

A We applied many of the criteria, not formally, but we 
applied many of the same criteria to both white and 
negro students requesting transfers other than May 1 

to May 1 5.
Q All right. Now did you apply any of those criteria to 

new students entering the school system for the first 
time on the high school levels involved in the plan?

A Yes; some.
Q Which ones?
A Proximity to schools; transportation; specifically,

I’m sure.
Q Any others?
A Generally, I think that’s it. I ’m sure there were

others applied in specific cases, but I do know those 
incidents.



Hearing on Motion for Further Relief 195.

Q Now new students who are entering school for the first 
time in the first grade in September, 1962, how are 
they assigned to school?

A There is no particular assignment from the Superintend­
ent's office. In some instances the area superintendent 
and the principals involved have established a line that 
determines the division between one school and another. 
Generally, they go because -- the school attended by 
their friends in that same general area.

Q Now there are separate lines for the negro and white 
schools, aren't there?

A Yes, there are separate lines, certainly in those
elementary school districts that have not been reached 
in this placement plan. But those lines are not rigidly 
drawn and they are not established by the Board of 
Education. There are no official lines in this City.

Q When you say those lines are not rigidly drawn, you
don't mean that negroes are free to go to white schools, 
do you?

A No,
Q, Now what about the lines on the high school level?
A They are roughly -- they roughly follow the same ex­

planation that I gave for the elementary.
Q These have separate lines for negro and white high 

schools?
A In reality, Mrs. Motley, there are not lines. The



Hearing on Motion for Further Relief 196

Atlanta School System, as you know, up until September 
of 1961 was a segregated school system. We are and have 
been in the process of moving from a segregated school 
system to a desegregated school system on the basis of 
the Court approved pupil placement plan, and we are mak­
ing no contention, of course, that we have moved all the 
way from a segregated to a desegregated situation.

Q, But you do have lines on the high school level, is that 
right?

A We have certain lines. They are not rigid attendance
lines. In fact, pupils —  pupils from all over the City 
attend schools all over the City. It has been necessary 
in particular cases in —  in recent years to —  to 
formalize some of those lines between —  between various 
schools. They have not -- there has been no attempt 
on the part of the school system as yet to draw rigid 
attendance areas that would be applied irrespective of 
race to the pupils living there.

Q Now let me ask you, prior to 1961, students were in the 
high school -- in a high school which was the school to 
which they wanted to go, didn't they?

A Yes, this was roughly true. There were no —  in some
instances when a building was overcrowded, the line was 
drawn; but that was generally the case.

Q And then since 1961 you've begun to institute these 
lines, haven't you?



Hearing on Motion for Further Relief 197

A Not any more formally than was the case previous to 
1961 except that it has been necessary in more cases 
to control attendance in schools because of —  because 
of an overload.

Q, Because of what?
A Or because of the size of enrollment.
Q Now how do you control that attendance?
A By drawing lines from time to time in order to shift 

pupils from one school to another. This does not 
apply —  is not limited to white schools or to negro 
schools. We have the same situation in all of them.

Q, Now when a student graduates from elementary school in 
Atlanta, is there a previously designated high school 
which that student attends or is assigned to?

A Usually, the —  the pupils that graduate from a par­
ticular school go to a particular high school. These 
assignments were made, I'm certain, in a general way a 
number of years ago. It doesn't mean that there are 
not some schools, however, where part of the students 
go to one school and part to another from the seventh 
grade.

Q Well, you have what is generally referred to in educa­
tional circles as a feeder system, don't you, that 
certain elementary schools feed into certain high 
schools?

A Roughly, that's true, with —  with exceptions.



Hearing on Motion for Further Relief 198.

Q What exceptions do you have here?
A Well, there are a number of schools where the pupils,

some schools where pupils have a choice, for instance. 
The elementary pupils in some instances go to the near 
by school or all in some cases cannot go to the near by 
school because of the size of the enrollment.

Q But what you have in Atlanta is that certain negro
elementary schools feed into certain negro high schools; 
and certain white elementary schools feed into certain 
white high schools, is that correct?

A On the basis of the pattern of previous years, that is 
correct; and we are in the process of changing it by 
the pupil placement plan.

Q Now the present plan which you have in your hand, does 
that make any reference to the assignment of teachers?

A No.
Q Now these mass transfers as you call them -- I call them 

the conversions from white to negro schools -- which we 
referred to in our proposed findings of fact, this is 
done for what reason?

A Done as a result of changing community patterns. It's 
done as a result of overloaded nearby schools that make 
it necessary in order to utilize, fully utilize the 
capacity of the buildings that we have.

Q You want to explain what you mean by changing neighbor­
hood patterns?



Hearing on Motion for Further Relief 199

A Communities that have formally been all white have 
changed to —  very rapidly in some instances and in 
many cases are all negro, or virtually so,

Q And what do you do with the white students who are at­
tending that school when you convert it to negro use?

A We make provision for them in a nearby school if there 
is space.

Q In a nearby white school?
A Yes, because of the fact that the pupil placement plan 

has not reached these grades.
Q Now the negro high schools in relation to the white 

high schools are seriously overcrowded, aren’t they?
A Yes.
Q How about the negro elementary schools?
A In some instances, they too are overcrowded, and I

think that I should explain that it is almost inevitable 
that this would be the case because our increase in en­
rollment in the City of Atlanta in recent years has been 
almost entirely negro children, and it is inevitable 
that the schools in those areas serving the negro com­
munity would be overcrowded.

Q And it follows, doesn’t it, that the negro schools have 
a higher teacher-pupil ratio than the white schools, 
doesn't it?

A They do have a higher pupil-teacher ratio. I would want 
to point out, however, that on the basis of the formula



Hearing on Motion for Further Relief 200.

for the allocation of teachers approved by the Board 
of Education there is no difference. As a school be­
comes overcrowded, however, it is true that as a rule 
a larger number of students are assigned to a given 
teacher, I would also want to point out that that is 
not entirely limited to those schools serving negro 
pupils. It is more -- it is more of a problem in those 
schools.

Q But that chart that I made up -- I'm sorry, I don't
remember the exhibit number; I believe it's 7 or 8 -- 
where I transposed the figures, would show, wouldn't it, 
the overcrowding in each school?

A Yes.
Q Now —  now would you list for us the extra curricula 

activities that you say are integrated?
A Honor banquets, sponsored by the Board of Education;

honor societies; clubs; athletic events; and many others 
that I'm not -- I do not -- just cannot recall the name.

Q Are these events that you have just enumerated in the 
four white high schools that have negro students? Is 
that what you are talking about?

A Mrs. Motley, the four —  the four schools that now have 
negro students attending them, we do not refer to as 
white schools.

Q Oh, I understand that, but I --
A We refer to them as schools.



Hearing on Motion for Further Relief 201.

Q I'm talking about the extra-curricular activities which
you have just enumerated as being integrated.

A Yes.
Q Aren't those limited to those four schools?
A Yes. In general, in terms of my specific reply to that

question, yes. But that isn't -- that isn't specific­
ally true in terms of athletic events and other occa­
sions in the school system.

Q, All right. Which athletic events are integrated, Dr. 
Letson?

A There has been no question about the attendance at any 
football game that we have had during the past year.

Q What else?
A There has been no question about the attendance of

P. T. A. meetings in these four schools by -- by the
parents of the transfer students or friends. There has 
been no question about it.

Q So you are still limiting this to the four high schools 
that are integrated?

A Yes, because I thought that was the -- that was the 
purpose for your question.

Q When you refer to the football games, you are referring 
to the football games at those schools, is that right?

A No.
Q Well, what football games were you referring to?
A Any football games played in the City of Atlanta by high



Hearing on Motion for Further Relief 202.

schools.
Q Now what is this honor society or honor banquet that 

you refer to?
A The Board of Education authorizes a certain amount of

money to provide for each school an opportunity to give 
a banquet in honor of those students who have made 
outstanding scholastic records.

Q Where was this banqueting held this year?
A It was held in all of the schools; in all of the high

schools.
Q Well, each high school has its own banquet --
A Yes.
Q -- is that what you are saying?
A Yes.
Q And those that were integrated were in the four high 

schools in which negroes have been admitted, is that 
right?

A Yes; with the explanation that come September there
will be seven additional high schools added to that 
list.

Q Do you know anything about a -- H. 0 . Smith Excellence 
in Scholarship awards which were presented by the 
Kiwanis Club in May of this year?

A Those awards were presented to -- at the graduation 
programs for all of our high schools.

Q You don’t know anything about this event, the Kiwanis



Hearing on Motion for Further Relief 203.

Club, where H. 0 . Smith Excellence in Scholarship awards 
were made to twenty-two students?

A No, I do not. They were not a school affair. If -- 
there are many service clubs that invite certain stu­
dents to come down to them. I do not happen to be 
familiar with that one. The awards, however, are pre­
sented at our graduation programs.

MRS. MOTLEY: Excuse me, Your Honor. I think
we are about to conclude. I believe that's all 
for this witness, Your Honor.
MR. EDENFIELD: May I ask just one or two ques­
tions, if the Court please? I will be very brief.
THE COURT: Yes, sir.

*  *  *  *

CROSS EXAMINATION
BY MR. EDENFIELD:
Q Dr. Letson, have you primarily been responsible for

the —  giving direction to the implementation of this 
plan and the application of it?

A Yes, sir.
Q Have you administered it in good faith to the best of 

your ability?
A To the best of my ability.
Q Have you given any consideration or concern to the 

question of race in administering it?
A No, sir.



Hearing on Motion for Further Relief 204

Q Was that answer, was your consideration of it affected 
in any way by the fact that on this application for 
transfer the race was requested?

A There’s been no particular attention paid to it. It
has been a matter of common knowledge, of course, that 
all except one of the formal transfer requests have 
been negro students.

Q, Did you cause that form to be printed or was it here 
when you came to Atlanta?

A It was printed before I came to Atlanta and started in 
my present position.

Q This State form here, are they furnished by the State 
or do you cause those to be printed?

A We have nothing to do with the State forms. They are 
printed by the State Department of Education.

Q Now speaking of informal transfers, and I use the word 
Informal; I believe that's what you used, other than 
those —

A Yes.
Q -- between May 1 and May 15* I believe you said there

would be something like 50 or 100 or some such as that, 
is that right?

A That was a very rough guess. Yes.
Q Now is that in all the school system or just high

schools or what?
A High schools.



Hearing on Motion for Further Relief 205

Q Just high schools? Was the answer all high schools?
A Yes, and as I recall the question, it related to —
Q Would some of those from time to time be brought about

by the fact that somebody would move from one side of 
town to the other? Was that a specific cause of them?

A Yes. Sometimes the change of jobs involved a question 
of convenience and transportation. Sometimes, a de­
cision to take a vocational course or some other course 
would be involved in the request.

Q Something was said about the area superintendent or 
sometimes the principals between two schools —

A Yes.
Q -- might informally agree between themselves about a 

line. Did the Board have anything to do with fixing 
that?

A The Board of Education does not establish the lines.
Q Do the principals in an effort, if within —  unless 

they are —  an overcrowding situation develops, do 
they have —

A Yes.
Q —  authority to change it on their own?
A Yes.
Q, Mrs. Motley asked --
A With the approval of the area superintendent.
Q With the approval of the area superintendent? Now give

us the names of some schools -- strike that and let me



Hearing on Motion for Further Relief 206.

start over again. Did I understand you to say that 
sometimes a particular school will become so overcrowded 
until you have to -- are forced to draw attendance lines., 
is that right?

A Yes.
Q For that particular school only?
A Right.
Q Is that peculiarly a negro situation or is it both 

negro and white?
A It applies to both.
Q And you say it is more accentuated because of the ex­

plosion of the negro population?
A Right.
Q, But it does happen in both races?
A Definitely.
Q Mrs. Motley was asking you about the -- where first

year students would go, and of course, the plan has not 
reached them yet, the plan --

A That's correct.
Q Now she made the statement, and I assume it was in con­

nection with that, that negroes are not free to go to 
white schools. That is true except --

A Except where the plan applies.
Q, Yes, sir.

MR. EDENFIELD: Pardon me just a minute, Your
Honor.



Hearing on Motion for Further Relief 207.

BY MR. EDENFIELD:
Q Did I understand from your testimony and from your

affidavit that no special tests were given applicants 
for transfer in '62?

A That's correct.
Q In other words, they were given exactly the same tests 

given to every other student in the room both from 
which they came and to which they sought to go?

A Correct.
Q Now is, in the directories and minutes and documents

handled by the Board of Education, do you now make any 
reference whatsoever to race.

A We do not. There has been an action by the Atlanta 
Board of Education directing that it not be done.

Q Is this the directory to which you make reference?
A That's the current directory; yes, sir.
Q '61-62?

A '61-6 2.
MR. EDENFIELD: I don't know it's appropriate
to introduce this at this time, Your Honor.
THE COURT: I don't think it's necessary to
put it in.
MR. EDENFIELD: All right, sir.
THE COURT: He just said what it wouldn't show,
and unless there is —
MR. EDENFIELD: All right, sir.



Hearing on Motion for Further Relief 208.

BY MR. EDENFIELD:
Q Dr. Letson, I show you what purports to be some excerpts 

from minutes, of the minutes —  various minutes of the 
Atlanta Board of Education with reference to making any 
present or future reference to race in the minutes or 
actions or publications of the Atlanta Board of Educa­
tion. Did you cause, or are those correct excerpts 
from those minutes to your knowledge?

A Yes, sir; they are.
Q Did you cause those excerpts to be abstracted from the 

minutes?
A I did.
Q Dr. Letson, what are the new schools which under the 

plan will be desegregated in September, the names of 
them, each school?

A Seven high schools. O'Keefe; West Fulton; Fulton;
Smith; Roosevelt —

Q, How about Bass?
A And Bass.
Q Did you mention Sylvan?
A No.
Q Is Sylvan one of them?
A Is that seven? That's six; Sylvan is the other.
Q Did I understand you to say that these massive transfers 

to which you referred, was any reference made in con­
nection with that to race?



Hearing on Motion for Further Relief 209.

A No, sir.
Q What was the reason for those transfers?
A To relieve overcrowded schools in the neighborhood.

MR. EDENFIELD: That's all, Your Honor.
BY THE COURT:
Q Dr., let me ask you this question. You have had long 

experience in dealing with schools and cities and so 
forth. Is it or is it not a usual thing when a child 
is in a certain school, lives in a certain place, do 
they frequently, when one school year ends and another 
starts, do they go around to different schools or is it 
more customary, barring some reason for it, for them 
to stay in the same school?

A It is generally customary, Your Honor, for -- for
school zones or school areas to be rather clearly de­
fined, and the students continue to attend school in 
those general areas and in those neighborhoods in 
which they live.

Q The reason I asked, there is some question raised in
this case, I don't know whether I'm right clear on the 
contention or not, that these tests which are given 
apply only to persons who are transferring. And I was 
wondering what would be the necessity of a test given 
to a child who was in the school last year and is going 
back to the school next year, as to whether or not they 
were in the proper school or whether they should be put



Hearing on Motion for Further Relief 210.

in some other school. The plan is based entirely 
on the question of changing.

A Your Honor, that was our assumption, because before the 
implementation of this plan, previous to last May -- 
previous to May 1 in 1961, there was a designation for 
all pupils within the school system, and specifically 
in the grades covered by the plan, that they were as­
signed, reassigned to the school that they had formerly 
attended. This was —  this, we felt, was necessary in 
proceeding in good faith under the plan, because if a 
pupil is to be given an opportunity to initiate a 
transfer, he must have a base from which to transfer.

Q, Well I’m trying to get this clear, plan or no plan,
segregation, integration or anything like that, before 
this question ever arose, was or was it not customary 
at the end of each year for students to select the 
school to which they wished to go, and to re-register, 
do they not re-register each year, or do they not -- 
or their parents give you a notice each year that they 
intend to go back to that school?

A It is assumed, and it is assumed they will come back 
to that school unless there is an exception granted 
upon a request.

THE COURT: I see. That's what I wanted to know.
Any further questions?
MRS. MOTLEY: Yes.



Hearing on Motion for Further Relief 211

REDIRECT EXAMINATION
BY MRS. MOTLEY:
Q Dr. Letson, on this excerpt from the minutes of July 9, 

1962, regarding the James L. Key School, it says this: 
"Mrs. Mitchell moved adoption of the recommendation of 
the superintendent that the building formerly housing 
the Key School be renamed." What’s the purpose of re­
naming that school?

A Because the Key School will be maintained —  at Hoke 
Smith High School.

Q It’s going to be renamed when you admit negroes to that 
school, isn’t it?

A It will be renamed when it serves to relieve the over­
crowded situation in the nearby schools.

Q And the nearby schools which -- which will be admitted 
here are negroes, aren’t they?

A Yes.
Q That has always been the policy, hasn’t it, Dr. Letson, 

when schools are converted from white to negro use, 
this is the case?

A No, not necessarily. And this is done only because the
Key School will maintain its identity.

Q All right, now. Which schools did not change the name 
when negroes were admitted?

A Mayson.
Q Pardon?



Hearing on Motion for Further Relief 212

A Mayson; Whitefoordj Margaret Fain -- the only ones since 
I have been directly concerned with Atlanta, there has 
been no name change.

Q But that was the policy, wasn't it, before?
A If so, it's certainly not to my knowledge.

MRS. MOTLEY: That's all.
THE COURT: Take a five minute recess.

(Whereupon court recessed at 1 1 :0 7 A.M.)

RECESS

(Whereupon court reconvened at 11 :12 A.M.)

THE COURT: You may proceed.
MRS. MOTLEY: Your Honor, we have one more wit­
ness, testimony from which will be fairly brief.
THE COURT: Yes.
MRS. MOTLEY: Mrs. Harris, would you please take
the stand?

(Mrs. Lottie Harris, having first being duly sworn, and 
called as a witness in behalf of the plaintiffs, testified 
as follows:

DIRECT EXAMINATION
BY MRS. MOTLEY:
Q, Mrs. Harris, will you state your full name, please?
A I am Mrs. Lottie Harris.
Q Are you a resident of the City of Atlanta?



Hearing on Motion for Further Relief 213.

A I am.
Q Where do you live?
A I live at 1478 Mosley Drive, S.W.j Atlanta.
Q Do you have any children in the public school system 

of Atlanta?
A Yes. I have one daughter in Turner High School.
Q How long has your daughter been in Turner High School?
A She’s been there three years. This will be the fourth 

year coming up,
Q Have you ever appeared before the Board of Education

of the City of Atlanta respecting the Turner High School?
A Yes, I have.
Q When was that?
A September the 11th, 1961.
Q What was your purpose there?
A The purpose was to ask some relief at Turner for the 

overcrowded conditions there.
Q Did you make a study of the conditions at Turner before 

going to the Board?
A Yes, I did.
Q What did you find the conditions to be?
A We found that the school, I think, was built so I was

told, to house a thousand children. At that time there 
were over two thousand in the school building. It had 
practically doubled its capacity.

Q Did you have any written materials to present to the



Hearing on Motion for Further Relief 214.

Board regarding that condition at that time?
A Yes. We carried to them a statement of facts which we 

found to exist.
Q Do you have a copy of it?
A Yes, I do.

CLERK: Would you like that marked?
MRS. MOTLEY: Yes, I would.
CLERK: Plaintiffs* Exhibit for identification 12

BY MRS. MOTLEY:
Q, Now that paper which you have in your hand which has

been marked Plaintiffs* Exhibit 12 for identification, 
does that statement set forth substantially your com­
plaint to the Board on that evening?

A Yes.
Q And has the Board taken any action to relieve the over 

crowding at Turner?
A Not that I can visibly see.
Q Have they ever replied to you on that in writing?
A Yes —  no, not in writing. We have not received any­

thing in writing.
MRS. MOTLEY: I believe that's all. We would
like to offer that in evidence, your Honor.
MR. EDENFIELD: Your Honor, I don't know that
the question of overcrowding is one that's before 
the Court on this occasion. The testimony so far 
and frankly admitting that that school is over-



Hearing on Motion for Further Relief 215

crowded, it's not a racial problem. It's an 
area problem. It applies in all —  in many schools 
THE COURT: I don’t --
MR. EDENFIELD: This statement, this document is a
statement purported to be prepared by one Lionel 
H. Newsome, representative of the volunteer parents 
of children at Turner High School. It starts off 
about a gigantic struggle between the United States 
and Russia, Cuba and Communism, and I'd say it's 
rather irrelevant to this proceeding and self- 
serving in character. For whatever it's worth,
I admit the school is overcrowded.
THE COURT: I think the statement not being under
oath is of course hearsay. As far as the probative 
value of it is concerned, the only thing it would 
show is that she had contended or protested that 
it was overcrowded. I was trying to see if 
there's anything in the proposed findings of fact 
here in which plaintiffs were making any conten­
tion in this case about overcrowding. I don't 
know whether it's in here or not.
MRS. MOTLEY: Yes, we do, Your Honor. We set forth
the fact that the negro schools are overcrowded, 
resulting in higher teacher-pupil ratios, and the 
purpose of this is to show that the negro parents 
have undertaken to protest to the Board regarding



Hearing on Motion for Further Relief 216

those conditions; and we maintain that those con­
ditions result from segregation, because the chart 
which we've offered in evidence shows that the 
white high schools in many instances are under 
enrolled and that these children could be relocated 
in those schools very easily and wouldn't be over­
crowded .
THE COURT: Merely to say that a person heard
that a certain school was built to accommodate a 
thousand is not very much proof that two thousand 
in there would necessarily overcrowd it. It's 
rather -- rather tenuous proof there that the —  
that the school was actually overcrowded.
MRS. MOTLEY: Well, the chart which we've intro­
duced has those figures and they are substantially 
as she has indicated. The number of rooms in 
Turner, the capacity of Turner and the number of 
people enrolled in Turner certainly shows the 
overcrowded condition.
THE COURT: Well, that's better proof. Was that
put in by the respondents —  I mean —
MRS. MOTLEY: We put that in, yes. That's one
of our exhibits. I just don't know the number.
THE COURT: Was that from the records of the
School Board?
MRS. MOTLEY: That's right.



Hearing on Motion for Further Relief 217.

THE COURT: I see.
MRS. MOTLEY: They furnished that to us.
THE COURT: Yes.
MRS. MOTLEY: And the purpose of this is to show
that the negro parents have complained to the 
Board regarding these conditions.
THE COURT: Well, I'm going to admit the document
at least for the purpose of showing that she made 
the complaint, but I'm ruling that the statements 
in there are not proof of the facts which they 
recite.
MRS. MOTLEY: Well, as I say, I think we have
other proof of the facts recited.
THE COURT: All right.
MRS. MOTLEY: That's all, Mrs. Harris.
MR. EDENFIELD: Just one second, Mrs. Harris.
THE WITNESS: Yes.

*  *  *

CROSS EXAMINATION
BY MR. EDENFIELD:
Q You heard the testimony of Dr. Letson, did you not?
A Yes.
Q Given in this case today?
A Yes.
Q Did you hear him testify that overcrowding of schools

was not peculiarly a negro problem, that there are other



Hearing on Motion for Further Relief 218.

areas in which there was overcrowding?
A Yes, I heard his statement.
Q Do you know of any fact to refute what he says or to 

suggest that what he says is not correct?
A I could not say about the white schools, because I

don’t know; only from their records and what they have 
published; but I do know in the negro schools that they 
are.

Q Did you hear his explanation, his admission that that 
is correct and his explanation that the increase in 
population, school population in Atlanta over recent 
years, has been predominately an increase in negro 
population?

A Yes, I heard that.
Q Do you have any facts that would disprove that state­

ment by Dr. Letson?
A No.
Q You do know, of course, that there is presently proposed

a bond issue for the purpose of building new schools 
to relieve overcrowded conditions? You know that, do 
you not?

A Yes.
MR. EDENFIELD: That's all.
THE COURT: Just one second.

BY THE COURT:
Q Do you, Mrs. Harris, in spite of these conditions, you



Hearing on Motion for Further Relief 219.

didn't ask for a transfer of your child to another 
school?

A Judge, Your Honor, I did not, because I did not feel
that —  you see, I'm near, right at Turner, right near 
Turner.

Q, That's right.
A And I did not feel that my child could stand the 

pressure.
Q, You live closer to this Turner?
A Yes, Your Honor; near.
Q And her friends are in there with her?
A Yes, they are.

THE COURT: All right. You may come down.
MRS. MOTLEY: That's all for the plaintiffs,
Your Honor.
THE COURT: All right. You may proceed for
the defense.
MR. EDENFIELD: Just one second, Your Honor.
Your Honor, would you give us just one second?
I believe it might shorten the matter.
THE COURT: Yes, sir.
MR. EDENFIELD: Your Honor, I would like to tender
in evidence the excerpts from the minutes which 
Dr. Letson identified.
THE COURT: Mrs. Motley, is there any objection to
that copy?



Hearing on Motion for Further Relief 220.

MRS. MOTLEY: No, Your Honor.
THE COURT: They’re admitted.
CLERK: Defendants’ Exhibit No. 2 .
MR. EDENFIELD: And to avoid introducing this
document, I would like to, if Mrs. Motley can 
agree, that she simply stipulate that with refer­
ence to the race in the directory, has been elim­
inated .
MRS. MOTLEY: Yes, we are willing to stipulate
that, Your Honor.
THE COURT: All right.
MR. EDENFIELD: May it please the Court, I don’t
believe with the statement I made previously 
that we have any further evidence. I think Dr. 
Letson has stated our position very well.
THE COURT: Yes. All right. The Plaintiff may
proceed to argue the case.
MRS. MOTLEY: Your Honor, we have in addition to
submitting proposed findings of fact submitted 
proposed conclusions of law.
THE COURT: Yes; they are very complete.
MRS. MOTLEY: I would like to say that the Fifth
Circuit rendered an opinion in the case of 
Augustus against Public Board of Instruction of 
Escambia County one day last week. I had intended 
to have copies of that opinion today, but I have



Hearing on Motion for Further Relief 221.

been away from New York and I haven't had an 
opportunity to do so. And we would like to 
furnish the Court with a copy of that after this 
hearing today because I think it has some bearing 
on this case. And I would like to briefly point 
out what that case is about. In that case, the 
negro plaintiffs asked for the reassignment of 
teachers on a non-racial basis. The school 
authorities moved to strike from the complaint 
those allegations regarding the assignment of 
teachers, principals and other professional school 
personnel on the basis of race, and they moved to 
strike from the complaint the prayer, that is, 
those portions of the prayer which sought re­
assignment of personnel on a non-racial basis.
The Court of Appeals for the Fifth Circuit has 
ruled that the striking of those allegations from 
the complaint were improper; that a question like 
this should not have been decided on motion to 
strike. The Court ruled that the Judge, however, 
in his discretion might delay the question of re­
assignment of teachers until there had been re­
assignment of pupils or until the pupils had been 
substantially reassigned. In other words, the 
Court recognized, as the appellant had contended, 
that the Brown decision carries with it a mandate



not only to reassign pupils on a non-racial basis, 
but a mandate to reassign teachers, and to do away 
with negro and white schools. The Sixth Circuit 
in its opinion in the Northcross case which we've 
cited and which is now recorded is of the same 
view. There, was a complaint which alleged the 
teachers were assigned on the basis of race. They 
set forth that contention or rather allegation from 
the complaint and returned the case to the District 
Court, in that case, with directions to grant the 
relief as prayed for in the complaint, or in the 
alternative, requiring the school authorities to 
come forward with a plan as prayed. And in that 
complaint, the plaintiffs prayed for the reassign­
ment of teachers on a non-racial basis. So I don't 
think that there's any question that the school 
authorities here have a duty to reassign teachers. 
Now
THE COURT: Mrs. Motley, would you like for me to
hold up my decision until I read that Fifth Circuit 
case or do you -- what would be your wishes in that 
regard, the last case?
MRS. MOTLEY: I think we could get it to you in
about a couple of days. I don't know whether Your 
Honor had planned to render a decision today, but

Hearing on Motion for Further Relief 222.

I don't think that



THE COURT: What is the style of that case? I
may have it in my office.
MRS. MOTLEY: Yes. It's Augustus against The
Board of Public Instruction of Escambia County, 
Florida. That's Pensacola, the major city.
MR. EDENFIELD: Your Honor, if I might interrupt,
I would say this. I stated in my opening state­
ment or in answer that we have not made any attempt 
to reassign teachers. That -- I said then that we 
intended to do that last, after pupils had been 
reassigned. I didn't prove that, but I state in 
my place that that is the intention of the Board.
I understand from Mrs. Motley that that's what 
the Fifth Circuit said was permissible.
THE COURT: I thought that was what she said.
MR. EDENFIELD: If that be true, then I agree with
her statement of it. I don't know any reason to 
wait for it if the language —  as far as we are 
concerned —
THE COURT: I may say, Mrs. Motley, some years ago
there was litigation here brought by the negro 
school teachers, a case of Davis against Cook.
MRS. MOTLEY: Yes, I recall it.
THE COURT: Davis was the plaintiff, and the school
authorities here recognized that there could be no 
discrimination in regard to teachers, and they

Hearing on Motion for Further Relief 223.



Hearing on Motion for Further Relief 224.

changed the entire salary scale. The case went 
through the Court of Appeals here, and I didn't 
know until this matter here was at a hearing that 
this was a class action in behalf of the teachers 
at all. This is rather a surprise to me, this 
matter of the teachers being injected into the 
case; but I will carefully read that opinion -- 
or any brief -- that you might wish to cite on it. 
MRS. MOTLEY: Yes, you see, the school authorities
in Escambia County contended exactly that, but -- 
the pupils had no standing to sue for the teachers, 
but as Judge Rives pointed out, schools are there 
primarily for pupils and teachers are a part of 
the school, and the pupil is entitled to attend 
school in a non-segregated school system and a 
segregated school is one in which not only are all 
the pupils negro, but all the teachers are negro, 
and they've admitted here that the negro teachers 
are assigned to negro schools. So what makes a 
negro school is the fact that the children are 
all negro, and in front of every class is a negro 
teacher.
THE COURT: If you file any supplemental brief,
which you are free to do, I wish you would point 
out anything that's in the record by way of the 
original complaint or any orders or anything else



Hearing on Motion for Further Relief 225.

in this case showing that up until now there has 
been any issue in here in regard to the school 
teachers.
MRS. MOTLEY: Yes, sir. In our complaint, we
alleged the teachers were assigned on the basis of 
race, and asked for an injunction enjoining the 
operation of the system on the basis of race.
THE COURT: You mean your original complaint?
MRS. MOTLEY: Yes, sir.
THE COURT: I see. All right.
MRS. MOTLEY: Now, the —  sorry; may I go on?
THE COURT: Well, did I understand you to say that 
the Fifth Circuit had ruled that it is proper to 
withhold action on the teachers until the question 
of the pupils was resolved?
MRS. MOTLEY: Yes, sir.
THE COURT: Well, are you asking for any order
at this time in regard to teachers?
MRS. MOTLEY: Yes. We have submitted a proposed
alternate plan which proposes that children in 
the high school, that's grades 8 through 12 I 
believe, be reassigned in the high schools next 
year on single zone lines, and that the teachers 
also in those particular grades be reassigned; 
and then in the following year, which would be 
1964, we ask for all pupils and all personnel in



Hearing on Motion for Further Relief 226

grades 4 , 5 , 6 and 7 to be desegregated in ac­
cordance with the high school grades on the basis 
of single zones, and that the teachers be re­
assigned; and then in September, 1965, we ask for 
grades 1, 2 and 3 , all pupils and all personnel. 
THE COURT: You are virtually submitting a new
plan here.
MRS. MOTLEY: That's right.
THE COURT: I see. All right. Now is there any­
thing further from either side? If not, I —
MRS. MOTLEY: I would like to make one or two
more points —
THE COURT: Yes.
MRS. MOTLEY: —  if I may. Of course, I've cited
a number of cases in our proposed conclusions of 
law and I think from these cases, particularly in 
the Fifth Circuit cases, it's clear that the 
plaintiffs in these cases have a right to come 
back at anytime and file a motion for further 
relief for the purpose of bringing about full 
compliance with the Brown decision. Now I'd 
like to call Your Honor's attention particularly 
to the Dallas case, which is Boson versus Rippy. 
That's 275 F.2d and so on. And there's a 285 

F.2d which I hope we've cited. There are so many 
citations -- yes, we do, on page 16, we cite the



second one. In that case, that Dallas case, the 
Fifth Circuit expressly ruled it wasn't approving 
grade-a-year plan but it would permit that kind of 
plan to go ahead in Dallas so that there could be 
a start toward desegregation. In the Augustus 
case which was decided the other day, the school 
board adopted the Florida Pupil Assignment Laws 
as the basis for assignment of pupils to school, 
and it required pupils as in this case to apply 
for admission to particular schools and then they 
would apply to those applications the criteria 
that the Florida Pupil Assignment Law set forth.
Now the Fifth Circuit ruled that was insufficient. 
They had to have a plan for initial students en­
tering school for the first time. They would have 
to have a plan for students coming into the system 
for the first time, and they said that with re­
spect to those students entering school for the 
first time in the first grade in September that 
they should be assigned on the basis of school 
zones. And if it's too late for September, they 
said the next year, the first two grades should be 
assigned on the basis of school zones; and this 
was supplementing the start which the Board has 
made for September, 1962, which start consists of 
letting negroes apply for admission to white schools

Hearing on Motion for Further Relief 227.



and applying the criteria to those pupils. And 
then they said that each year thereafter, there 
should be school zone lines drawn for at least, 
for a minimum of one grade a year, and of course, 
the plaintiffs could come back at anytime to get 
that speeded up or the Board on its own could 
do so. Moreover, the plaintiffs could submit a 
plan of their own to help the District Court with 
this, so that the plaintiffs here have submitted 
a proposed plan as suggested there as to what 
could be done to speed this up. And I think the 
evidence here clearly shows that the only people 
subjected to these criteria of the plan have been 
negroes. There has been one white person subjected 
to the criteria, but that was a white person who 
was complaining about negroes being admitted to 
the school which the student was attending, and to 
her they applied the criteria of the plan. But 
for that situation, the criteria would not have 
been applied to anyone but negroes. Now the Fifth 
Circuit has already ruled in the Manning case if 
you use a pupil assignment law or criteria as the 
basis for assigning students, those criteria have 
to be applied to everybody, and they can’t be ap­
plied just to negroes seeking transfers to white 
schools, and that’s why we contend here that the

Hearing on Motion for Further Relief 228.



plan as to grades 11 and 12 —  and 10 —  should 
have been applied to all students, as the Court had 
ruled, and not just to negroes seeking assignment 
to white schools because that's discrimination 
against negroes on its face. That's subjecting 
negroes to a test different from a test applied 
to whites, and that's clearly a denial of equal 
protection. So what the Board has done here is 
in clear violation of law. You can't apply a 
different standard to negroes than the standard 
applied to whites, so that the plan which they are 
operating under cannot pass the test of equal pro­
tection, and it seems to me that therefore they 
are required to come forward with a new plan, a 
plan which more clearly conforms to the decisions 
already rendered by the Fifth Circuit.
THE COURT: I don't see that you have proven that
there's any standard here applied to the negro and 
not to the white. The —  the plan of transfer has 
operated in regard to colored primarily because 
they are the only ones that have asked for a trans­
fer. The only transfer asked for by a white girl 
was this Miss Melkild, I think her name is, and her 
application was turned down by this Court expressly 
on the ground that it was based on discriminatory 
grounds. She didn't show any reason for a transfer

Hearing on Motion for Further Relief 229.



Hearing on Motion for Further Relief 230

except for the fact that some negroes had been 
admitted to a school that she was attending, which 
was -- which was on the basis of discrimination 
from another way. And her application was turned 
down. Now I don't know of any —  I don't know of 
any other white application that's ever been filed 
except that one.
MRS. MOTLEY: Yes, that's -- no white application
has been filed during that period because everybody 
understands that that's the period when negroes 
apply for admission to white schools, and the 
whites —
THE COURT: No, the plan doesn't say that.
MRS. MOTLEY: No, sir; the plan doesn't say that
but everybody understands that, and I don't think 
the Court can close its eyes to what everybody 
else understands. I think that the whites have 
applied at other times for transfers and there 
are obviously many of such transfers in a school 
system of a 100,0 0 0. There are people moving back 
and forth every day. That was one of the reasons 
for wanting this kind of plan because you have 
these tremendous population shifts in Atlanta.
You have whites applying for transfer every day in 
the week. And to those whites no test is applied 
except their reasons for transfer, and they may



look at their scholastic records, but the fact is, 
as the Fourth Circuit pointed out in the two cases 
we furnished, I believe we furnished copies of the 
Fourth Circuit cases in the Marsh case and the 
Greene case, the Fourth Circuit dealt squarely 
with this problem. They said, of course, the only 
people seeking transfers would be negroes from 
negro schools. That's what the suit is all about, 
and you can't apply these criteria just to negroes 
seeking transfers to white schools. And they 
point out exactly what I'm saying here, that this 
plan is operated to put a burden on negroes not 
shared by whites.
THE COURT: Well, the Greene case to which you re­
fer, written by Judge Sobeloff, on page 8 of the 
opinion which you furnished to me, has this lan­
guage: "This Court has on several occasions
recognized that residence and aptitude or scholas­
tic achievement criteria may be used by school 
authorities in determining what schools pupils 
shall attend, so long as racial or other arbitrary 
or discriminatory factors are not considered."
Now I call your attention to the fact that under 
the Atlanta School Plan that any —  any colored 
wishing to transfer may do so. In 1961, a certain 
number did, and 10 were given a transfer. In '62

Hearing on Motion for Further Relief 231.



a larger number applied and I think some -- some 
44 it's said were admitted in seven high schools 
where they were not admitted before. Now there is 
not a scintilla of testimony in this case, that 
any of those who were rejected were rejected on 
any other basis than the language I just read from 
Judge Sobeloff of the Fourth Circuit in the Greene 
case which you cited, and that Court has recognized 
and every Court has recognized that residence and 
aptitude or scholastic achievement criteria may be 
used by the school authorities. Now I think that's 
very significant. It doesn't make any difference 
whether it's the white or the colored moving for 
a transfer. It so happens that the whites do not 
wish to transfer. If they did, they would have the 
same criteria here as applied to the negro. But 
the vital point in here seems to me to be this, 
that in every case where they have refused to 
transfer a negro, that particular negro has not 
come into Court and tried to prove that he or she 
had the aptitude or scholastic achievement which 
is required, even in the cases which are cited by 
you, and that seems to me to be rather significant. 
I'm going to withhold decision in this matter and 
let you cite the additional cases which you've —  
you say have just recently been decided. I have

Hearing on Motion for Further Relief .232.



Hearing on Motion for Further Relief 233

given very careful thought, I’ve read the cases 
cited by you in your original brief for the most 
part; not all of them. You may close the Court 
until further order.

(Whereupon Court was closed at 1 1 :46 A.M.)

END OF TRANSCRIPT

UNITED STATES OF AMERICA 
NORTHERN DISTRICT OF GEORGIA

I, James G. Pugh, Official Court Reporter of the United 
States District Court for the Northern District of Georgia, 
do hereby certify that the foregoing 83 pages contain a true 
transcript of proceedings had before the said Court held in 
the City of Atlanta, Georgia, in the matter herein stated.

In testimony whereof I hereunto set my hand on this the 
18th of September, 1962.

/S/ JAMES G. PUGH_________
Official Court Reporter 
Northern District of Georgia



234.

ORDER OF COURT
(Same Title - Filed Sept. l4 , 1962)

The Court held a hearing on plaintiffs' motion for 
further injunction. At said hearing an attack was made on 
the proposed Pupil Placement Plan heretofore proposed by 
the Atlanta Board of Education and approved by this Court.
The criticism to this Plan now offered for the first time is 
that it provides for certain tests to be given to pupils de­
siring to transfer from one school to another, such transfers 
now applying to the twelfth, eleventh and tenth grades. Each 
year hereafter it shall apply to the next lower grade until 
all Atlanta common schools will be subject to the same.

Specifically, the attack made upon this Plan is to 
the effect that it requires certain tests to be given to 
students desiring to transfer to the above three grades but 
that it does not require the same test to be given to stu­
dents in the same school who are being promoted to these 
grades from a lower grade.

It is true that the Fifth Circuit Court of Appeals, 
writing through Judge Tuttle, made statements in the case of 
Manning vs. Board of Education of Hillsborough County. 277 
F .2d 370(3) to the effect that tests required of students 
transferring must also be applied

"to all students and not only to 
those wishing transfers" (277 F.2d,
37 4).



Order of Court 235

The above language was made in connection with the 
judgment of the district court dismissing a complaint, and 
concerned possible evidence that might be introduced under 
the complaint and give as a reason why the trial judge erred 
in dismissing the complaint. Consequently that court did 
not elaborate on the question.

This Court is therefore setting this case down for 
further argument so that the following questions may be 
clarified:

1- As students who have been for several years in a 
particular school have already passed certain tests year by 
year and are qualified to pass other tests for promotion to 
a higher grade, is it necessary or feasible to give them 
the same tests that would be required of students transfer­
ring from another school?

2 - As students who have already attended a certain 
school for several years are well known to faculty and the 
students, live within the proper area and are well adjusted 
to the school may possibly be capable of classification 
without other tests, is it nevertheless necessary under 
plaintiffs' contentions for them to receive the same tests
as given to students who, from other areas and other schools, 
desire a transfer?

3 - What is the position of the defendants in this 
case as to one instance shown by the evidence where a Negro 
pupil allegedly was transferred on account of crowded condi­



Order of Court 236

tions to a school, although there was a white school nearer 
to his residence? The Court should determine whether that 
is a general policy of defendants, whether it is discrimin­
atory, and whether it should be enjoined in the future.

This Court has been withholding entering Judgment 
on defendants 1 motion pending the writing of a transcript 
of the evidence, but believes that considerable time will be 
conserved by setting the matter for further hearing on the 
above questions pending the transcription of the previous 
hearing.

The Clerk is therefore directed to place the above 
stated case on the non-jury calendar of this Court at the 
earliest time that is open.

This the l4th day of September, 1962.

/S/ FRANK A. HOOPER________
PRANK A. HOOPER 

UNITED STATES DISTRICT JUDGE.



237.

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 injunction before Honorable Frank A. Hooper at 
Atlanta, Georgia on Tuesday, October 3 0, 1962 at 9 :3 0 A.M.

Very Truly Yours,
C. B. MEADOWS, CLERK 
BY:

/ S /  JOHN S. WOODYARD
John S. Woodyard 
Deputy Clerk.

cc. to:Mr. A. T. Walden 
Mr. E. E. Moore, Jr.
Mr. Donald L. Hollowell Miss Constance Baker Motley 
Mr. J. C. Savage 
Mr. Newell Edenfield 
Hon. Eugene Cook 
Mr. A. C. Latimer



238.

HEARING ON MOTION FOR FURTHER RELIEF 
(Same Title)

Atlanta, Georgia; October 3 0, 1962.

Before
Honorable FRANK A. HOOPER, Judge.

Appearances:
For Plaintiff: Mrs. Constance Baker Motley

Donald L. Hollowell 
E. E. Moore, Jr.

For Defendant: Newell Edenfield
A. C. Latimer

THE COURT: Are the plaintiffs ready to proceed in
this motion for further relief.

MRS. MOTLEY: Plaintiffs are ready, Your Honor.
THE COURT: All right. You may proceed.
MRS. MOTLEY: May it please the Court, in answer to

the questions set forth in Your Honor's order of September 
the fourteenth, the plaintiffs have already submitted to 
this Court a proposed findings of fact and conclusions of 
law; and I think that the cases which we have cited in our 
conclusions of law answer most of the questions which have 
been put to us by the Court.

THE COURT: I don't believe that they have been
brought to my attention. Mr. Beers, would you give me that?

THE CLERK: Yes, sir



Hearing on Motion for Further Relief 239.

THE COURT: Pardon me just a moment. I would like
to glance over that. Has there been any answer filed to 
those by the defendants?

THE CLERK: Yes, sir. Both sides have submitted —
MR. EDENFIELD: We have made a response Your Honor

and both -- orally on the last hearing and also we filed a 
written response.

THE COURT: Yes. Well, it would be right helpful
to me to know what the issues of fact are for this hearing. 
May I ask if the defendants, or the plaintiffs have any 
witnesses they want to use in this hearing.

MRS. MOTLEY: No, sir. My understanding was that
there would be a further argument as to the questions pro­
pounded by the Court; not that any further testimony would 
be required. As Your Honor recalls, we examined the Super­
intendent of Schools at the last hearing and that we in­
troduced a number of exhibits which were admitted. We 
submitted these proposed findings of fact and conclusions 
of law and we also submitted a proposed alternate plan of 
desegregation. I believe that in connection with our 
motion for further relief we also filed a memorandum of 
points and authorities.

THE COURT: Mrs. Motley, I want to call your at­
tention to the fact of your proposed new plan, in the first 
place, it didn't come in here until at the end of all this 
matter and the very last proceeding. Secondly, I call



Hearing on Motion for Further Relief 240.

your attention to the fact that you didn't introduce a bit 
of evidence to show that the plan was practicable and having 
originally approved a plan which is in operation and having 
on the first, at that time having gone very thoroughly into 
the situation in Atlanta schools, the crowded conditions 
and this, that and the other, and approved that plan, it 
would seem to me that in order to change that plan now and 
speed it up that there should be —  should have been some 
evidence offered to show that this speeding up process 
was —  was feasible. In other words, I do not have any 
basis on which to go to change the plan and speed it up, 
certainly without hearing from the defendants as to whether 
it will work too great a hardship or confusion or chaos in 
the crowded conditions of the Atlanta schools to acceler­
ate it, without a line of testimony or without an oppor­
tunity to defendants to show whether or not that, that 
could feasibly be done. Now I know in a few cases, the 
Fifth Circuit Court of Appeals have more or less peremp­
torily just made their own plan, but those were all cases, 
as I recall, where there was no cooperation shown in the 
lower court toward forming a plan, and I would like to 
have, I would like to have your citation of authorities in 
those cases to see that I have all of them. But that is my 
recollection, that that's the only circumstances under 
which there has been a more or less peremptory order speed­
ing up a plan, was where there was no effort made by the



court below or the defendant in the court below to make a 
reasonable plan. And that's the reason I didn't put that 
feature of this case down for a further consideration this 
morning, because there's no evidence introduced here show­
ing that, that it's feasible to change this plan. This 
plan was not appealed from. It's been working satisfac­
torily. In your original motion, you didn't ask to speed 
it up; I don't believe in your amendment. It was only at 
a very late date that you more or less casually threw in 
here that you want to speed it up; no evidence on it; and 
that's the reason I didn't put it down for any further 
hearing because frankly, I —  I just don't see how I can 
peremptorily speed the plan up without some evidence to 
show that, that it would be at all feasible, and I have 
none whatsoever. But I'm getting off onto something else. 
Let's come back to the --

MRS. MOTLEY: Well, does Your Honor want me to
reply to that.

THE COURT: What was that.
MRS. MOTLEY: Does Your Honor want me to reply.
THE COURT: Oh, yes.
MRS. MOTLEY: Well, we think that the burden is on

the defendants under the Supreme Court's second decision in 
the Brown case now, that a start toward desegregation in 
Atlanta has been made, the burden is on them to show that 
additional time is needed in the public interest, and they

Hearing on Motion for Further Relief 241.



Hearing on Motion for Further Relief 242.

showed nothing in response to our proposed plan at the last 
hearing. In the Augustus case, which is the last one, I 
believe, just before the Bush case, decided by the Fifth 
Circuit, they said that the plaintiff might suggest plans 
as well as the defendants to speed up the situation there. 
And as I understand it, that would be the law of the Fifth 
Circuit, that the --

THE COURT: Now give me once again those citations
please.

MRS. MOTLEY: That's the Augustus against The Board
of Public Instruction of Escambia County Florida. In that 
case —  I'm sorry I don't have the citation; I believe it's 
now reported. It was decided in August of this year by the 
Fifth Circuit. I believe I furnished the Court with a copy 
of that opinion.

THE COURT: I think I have that in my file.
MRS. MOTLEY: Yes. Now there, they have a plan

similar to the plan here, a pupil assignment plan. Their 
plan, however, was a State Law. The plan here was a School 
Board plan, but essentially they were the same. They re­
quired negro students to apply for transfers. Now the 
Fifth Circuit pointed out there that that was insufficient. 
That in addition to committing students to apply for trans­
fers at this time, the school authorities are required to 
come forward with a single school zone or school district 
plan beginning with the first grade and going on up through



Hearing on Motion for Further Relief 243.

the school system, at least a grade a year. And if it 
were too late for September, '6 2, then they should do two 
grades in September, *6 3. And that’s because the Brown 
case requires that the two school systems be reorganized 
into a single school system, and that is the basis on which 
we objected to the original plan in this case, as our ob­
jections will show. We did not approve the plan. We ob­
jected to it, in lengthy objections. The Court approved 
the plan, and we consider that under the Brown case that 
plan is no more than a start toward desegregation.

THE COURT: You also filed a Bill of Exceptions on
appeal and dismissed it.

MRS. MOTLEY: That’s right. We did. We don't
understand that any of these cases are concluded after a 
first hearing in them. I think the Fifth Circuit has re­
peatedly ruled that the Courts must retain jurisdiction 
of these cases until there has been full and complete 
compliance with the Brown decision.

THE COURT: That’s true, and I do not mean to say
that the original plan has to be just frozen and fixed 
for all time if circumstances are shown to the Court to 
change it. But what I am trying to say is this. Where a 
plan has been approved, where a plan has been in operation 
several years, and where all that the movant shows is that 
they want it speeded up, do not show any facts, do not 
show whether it's feasible to speed it up, you say that by



Hearing on Motion for Further Relief 244

plaintiff coming in and merely asking to speed it up, that 
all presumptions are against the defendant and the burden 
is on the defendant to show that it should not be speeded up 
as requested. I don’t think that’s correct as a statement 
of law.

MRS. MOTLEY: The plaintiffs don’t say that. The
Supreme Court says that in the second Brown decision, that 
these negro students are entitled to their constitutional 
rights now, and if there is to be any delay, the burden is 
on the school authorities to show that there must be a delay 
in the public interest, and what we have here in Atlanta, 
is forty-four or whatever the number is of forty or fifty 
thousand negroes admitted to white schools in two years, 
and we say that's not desegregation, and I believe the Fifth 
Circuit will agree with us. Then --

THE COURT: Well, —
MRS. MOTLEY: -- the Brown case never contemplated

any such situation.
THE COURT: You say there’s fifty thousand negro

students.
MRS. MOTLEY: Well, I am not certain of the number,

Your Honor.
THE COURT: Well, let’s say around that number.

Those fifty thousand haven’t asked to be changed.
MRS. MOTLEY: They don't have to ask, Your Honor.

That’s our second proposition, that negro students do not



Hearing on Motion for Further Relief 245

have to ask for constitutional rights which the Supreme 
Court says they are entitled to. And the Fifth Circuit has 
ruled that at least four times, and the Sixth Circuit ruled 
that in the Northcross case, another case which we furnished 
a copy of. They said it specifically when they knocked out 
the pupil assignment law of Tennessee, that negroes cannot 
be required to apply now for something the Supreme Court 
says they are entitled to,

THE COURT: At the same time, the Fifth Circuit
has repeatedly ruled that the, what the Court should do is 
to prevent discrimination and not to force mixing. And if 
the negro students do not desire to change, you don’t —  
you do not contend, do you, that the Court should pass an 
order and force them to transfer.

MRS. MOTLEY: Yes, because negroes don't have any
more right to attend or insist upon segregated schools than 
white students do. The school system is to be operated 
without regard to race, and no negro has the right to 
come in here and say, "I want to go to a negro school," 
anymore than a white student does.

THE COURT: Well, the one point here that you and
I differ on is this. I say that when a plan has been 
adopted, there’s no appeal or appeal was filed and it was 
dismissed, and you want to change that plan and speed it 
up, which I say again seems to be sort of a last minute 
after-thought in this particular motion, and do not introduce



any evidence, you are saying that you could come into Court 
at anytime and say, "Speed it up," and it would always throw 
the burden of proof on the defendants to show that they can­
not speed it up. Now, that's -- that's a rather novel 
proposition to me that all you have to do is come in and 
say, "I want it speeded up."

MRS. MOTLEY: Yes. I think that's the law, Your
Honor.

THE COURT: Now I —
MRS. MOTLEY: Your Honor may disagree with me, but

I think that's the law.
THE COURT: I'll read this Augustus case and see

if it says that. But I recall reading the case but I didn't 
get that out of the case. I'll say this, that under the 
particular facts of the cases, the Fifth Circuit in some 
instances has done that, but as I say, it was under circum­
stances quite different from those that, that exist here
in this case. Well, let's take some other phase of the 
matter, then. Now I find that I have studied your findings
of fact dated July 2 0, 1962. Is that the one you have
reference to.

MRS. MOTLEY: Yes, sir.
THE COURT: And your conclusions of law there cite

a number of cases. They do not —  you do not cite, though, 
in your conclusions of law the case of Augustus against the

Hearing on Motion for Further Relief 246.

Board of Education



Hearing on Motion for Further Relief 247.

MRS. MOTLEY: No, sir. That came out after I pre­
pared that, and I furnished a copy. Also, I think the North- 
cross case —  no, there were two cases from the Fourth Cir­
cuit, Greene and Marsh, and I believe I furnished copies 
to the Court.

THE COURT: Now this list of witnesses attached
here, are those witnesses --

MRS. MOTLEY: We've already had the hearing on that,
Your Honor; last time.

THE COURT: I see. All right. Well, suppose you
proceed with your argument and we can refer to these find­
ings of fact as -- as necessary.

MRS. MOTLEY: Well, in reply to the Court's specific
questions here, we cite the Manning case which we have al­
ready cited and which the order itself cites to the effect 
that the school authorities may use any standard of pupil 
assignment which they choose, but whatever standard is chosen 
must be applied to all students within the school system and 
not just the students seeking transfer. Now the evidence in 
this case shows that the plan has been applied only to 
negroes seeking transfers to white schools, who apply be­
tween May 1 and May 15, 1962. Now there was one white stu­
dent to whom the plan was applied who protested against 
negroes being admitted to that school, but that is obviously 
a circumstance which would not ordinarily occur, and her 
application was denied, which showed that the plan operates



Hearing on Motion for Further Relief 248

only against negro students which —
THE COURT: Let me ask you a question about the

Melkild case. In that case -- have you read the pleadings 
in that case.

MRS. MOTLEY: Yes, sir.
THE COURT: Did you observe that Miss Melkild put

her alleged right to transfer entirely on racial grounds?
MRS. MOTLEY: Yes, sir.
THE COURT: Do you think that she should have had

a right to transfer?
MRS. MOTLEY: I certainly do not, and the transfer

should have been denied on that ground alone without even 
any reference to the plan, because obviously no transfer, 
as the Fifth Circuit ruled in the Boson versus Rippy case, 
can be predicated on race.

THE COURT: Did you read my opinion denying her
application?

MRS. MOTLEY: Yes, sir. I did.
THE COURT: Did you see in there where I said that

it was based entirely on racial grounds?
MRS. MOTLEY: Yes, sir.
THE COURT: And was therefore denied?
MRS. MOTLEY: That's right.
THE COURT: Then what is --
MRS. MOTLEY: That's why I say the plan —
THE COURT: What is your complaint on that?



Hearing on Motion for Further Relief 249.

MRS. MOTLEY: That's exactly my point. The plan
has nothing to do with her case. She would have been denied 
the transfer whether we had this plan or not, so that the 
plan is operated only, operates only against negroes seek­
ing transfer to white schools.

THE COURT: Well, I don't agree with you. If, if
the reverse happened, which did not happen and will not 
happen, of a white person trying to get into a negro school, 
the same plan and the same rules were to be applied.

MRS. MOTLEY: Yes, sir, the Fourth Circuit ruled
that in either the Marsh or the Greene case. It said ob­
viously the only people using transfers in this situation 
would be negroes to white schools, and what you are doing 
is putting on —  a burden on negroes not shared by whites, 
and that's why the burden is on the school authorities to 
reassign everybody on a non-racial basis in order to do 
away with segregation. We will never get segregation on a 
voluntary basis by having people apply to go to negro 
schools or negroes applying to go to white schools.

THE COURT: Well, I didn't take that to be your com­
plaint here. I thought your complaint here was this. Sup­
pose, we have gotten down to the twelfth, eleventh, to the 
tenth grade now. Suppose a negro applies for transfer over 
to the tenth grade in a school which has previously been 
predominately white. I thought your complaint was that the 
white children going from the ninth to the tenth grade in



Hearing on Motion for Further Relief 250.

that same school should have the same test as a negro going 
from a negro school into the same tenth grade.

MRS. MOTLEY: Yes, sir. That is also our conten­
tion; yes, sir.

THE COURT: Well, --
MRS. MOTLEY: That the same standard for admission

to that tenth grade class must apply to everybody.
THE COURT: I pointed out in my order setting this

matter down that I wanted a hearing on that for this reason. 
White children moving up from the ninth to the tenth grade 
have already had the tests. They are already known to the 
school. It's already known as to all of the requirements 
contained in the plan, whether they comply or not. Now 
are you saying that a negro coming from another school 
into the tenth grade is given a test different from that 
given to those who are moving up.

MRS. MOTLEY: In 1961 they were. But according to
the evidence here, the school authorities themselves say 
they have abandoned this plan and that they are not giving 
any different tests. They are using the tests already given 
normally long before anybody thought about desegregation.

THE COURT: All right. The question, it would seem
to me, would be whether the negro transferring over into 
the tenth grade is given the same test that those that move 
up --

MRS. MOTLEY: I don't understand that he is. I



Hearing on Motion for Further Relief 251.

understand he is given special consideration as to his ap­
plication between May 1 and May 1 5. The white student moves 
up automatically.

THE COURT: No, they don’t move up automatically.
They have to pass the tests.

MRS. MOTLEY: I don't understand that to be the
case, Your Honor. I understand that in —  the students al­
ready in those schools, they are not given any tests. They
are promoted to the next grade.

THE COURT: Well, that's right; and --
MRS. MOTLEY: But, if a negro wants to come into

the class, he must apply for a transfer between May 1 and 
May 15 and then they look into his record to see what his 
academic achievement is.

THE COURT: So, a white child who wants to transfer
would have to do the same thing, even from one white school
to another white school.

MRS. MOTLEY: Yes, but then there's no facts here
white students are seeking to transfer.

THE COURT: Well, that isn't the fault of the plan.
MRS, MOTLEY: But I think the Court has to decide

it on what the facts are and the facts are no whites seek 
transfer to the negro schools.

THE COURT: Here's what I want you to point out to
me, how any negro is discriminated against when he goes from 
the ninth grade of a predominately negro school to the tenth



Hearing on Motion for Further Relief 252.

grade of a predominately white school and that you should 
point out there are requirements laid down to him to get into 
the tenth grade which are not required for the students 
moving from the ninth to the tenth grade.

MRS. MOTLEY: That's right.
THE COURT: Now mind you, this is a student going

from the ninth grade to the tenth grade, and he has to pass 
up all his ninth grade subjects before he can be promoted, 
as you say.

MRS. MOTLEY: That's right.
THE COURT: A student going from the tenth grade

of a negro school —  I should have said the ninth grade of 
a negro school to the tenth grade has got to show the same 
scholastic requirement as other people in the tenth grade 
because you could not have in the tenth grade of any school 
two standards of scholarship. And as I understood, a negro 
going from the ninth grade of one school to the tenth grade 
in another class has to show the scholastic requirements 
to entitle him to enter the tenth grade, which said scholas­
tic requirements have already been determined by the children 
in the ninth grade of the same school by passing their ex­
aminations, completing the ninth grade. Do I make myself 
clear?

MRS. MOTLEY: Yes, Your Honor. But I think the
fact is that the negro child that you are speaking of has 
passed whatever subjects are required of him in that negro



Hearing on Motion for Further Relief 253.

school, and when his application is denied, he goes up to 
the tenth grade and they will claim and repeat that the cur- 
riculi are the same in all these schools. The negroes are 
not given an inferior education. That all of this is the 
same. So if the negroes are getting the same thing in the 
negro high schools, why does a negro student have to prove 
that he can do tenth grade work in a white high school?

THE COURT: I don't believe --
MRS. MOTLEY: And there are whites in that school

who are far below the negroes who transferred in every case, 
because the negroes are required to have a score, and the 
record shows, ten points above the average in that class 
in order to transfer. In other words, sir, what they are 
saying is, "We will permit negroes who are above the aver­
age to transfer to that tenth grade class, and the fact 
that we have half of the class below that average and an­
other half or certain per cent in the middle, and a very 
few at the top, that's immaterial." Negroes have to meet 
a higher standard, and we say they do not.

THE COURT: Let's get this clear. Do you contend
that all of the negroes in every ninth grade in the school 
system are necessarily of the same capacity and training 
that all of the white children in ninth grades are, that 
they are all necessarily -- have to be equal in scholastic 
attainments?

MRS. MOTLEY: I think that in any class, Your Honor,



Hearing on Motion for Further Relief 254

in the tenth grade you can have some students whose scores 
will be -- that the scoring system is, say, one to a hun­
dred -- you are going to have students in a white school 
to fall anywhere from zero to a hundred. The same thing 
is true of a negro high school. You are going to have some 
students who score ten and you are going to have some stu­
dents who score a hundred. Now if you are going to place 
students in schools in accordance with their scores, that’s 
one thing, and that's acceptable. But they are not doing 
that. They are requiring negroes to have a ten per cent 
greater score than the average in that class, and that is 
discriminatory. But as I say, if the requirements for ad­
mission to any school is that you receive a certain score 
on that test, then nobody can complain.

THE COURT: Well, I'll be inclined to agree with you 
tentatively for -- if the facts show that. I think this.
As to the tenth grade in any predominately white school, 
the scholastic requirements within certain ranges, of course, 
I'll say the minimum scholastic requirements should be the 
same for white students moving up from the nonth to the 
tenth as for colored students coming from the ninth grade 
of another school into the said tenth grade. Does that -- 

MRS. MOTLEY: Yes.
THE COURT: -- state what you are claiming?
MRS. MOTLEY: In other words, I think that --
THE COURT: I would be inclined to agree with you



Hearing on Motion for Further Relief 255 .

on that, for the time being anyway. Let's assume that, 
that that plan is being violated.

MRS. MOTLEY: Well, I think the record, as I say,
shows that.

THE COURT: Now point out in the record where that's
violated.

MRS. MOTLEY: Well, I think the Superintendent
testified —  I don't have my copy of the transcript -- he 
testified, in fact, to a —  the letter which he sent to 
Mr. Moore and which is one of the exhibits in here in which 
he pointed out that under this plan in 1961 negroes who 
applied for transfer were granted transfers on condition 
first that they scored ten points, I believe it was, above 
the average.

THE COURT: Above the average of what?
MRS. MOTLEY: Of the class to which they sought

admission, or the school. Well, it's plaintiffs' Exhibit 6 
of July 3 1, 1962.

THE COURT: All right.
MRS. MOTLEY: Report of Procedures and Recommenda­

tions Relating to Pupil Requests for Transfer, and this has 
to do with those seeking transfer between May 1 and May 15, 
and it says, Paragraph Three, "The forty-seven students who 
were requested to take the School and College Ability Tests 
(SCAT) administered at Washington High School on May 2 6, were 
those applicants falling in the following categories, (a)



Hearing on Motion for Further Relief 256.

applicants whose composite score equaled or exceeded the 
median of the grade level in the school to which transfer 
was requested, (b) applicants whose composite score came 
within ten per centile points below the grade median of 
the school to which transfer was requested, (c) applicants 
whose composite scores were lower than ten per centile 
points of the grade level in school to which transfer was 
requested, but who nevertheless exceeded the national 
median." That isn't it either. Just a moment.

THE COURT: That doesn't say that those --
MRS. MOTLEY: No, that doesn't. I was looking for

something else where I thought the Superintendent pointed 
out --

THE COURT: Which of those does it say were accepted
MRS. MOTLEY: Well, this says, the forty-seven stu­

dents applying were given a special test on May 26th, and 
they were selected from a group of applicants who had pre­
viously been tested, and this is what I don't seem to be 
able to find.

THE COURT: Well, they fell in the classes a, b and
c; but it doesn't say which ones were granted and which ones 
were refused.

MRS. MOTLEY: No, it doesn't. I thought that there
was in this letter to Mr. Moore, which was one of the ex­
hibits, a statement by the Superintendent to the effect that 
the negro students who were accepted were given a test and



Hearing on Motion for Further Relief 257.

they were required to score ten points above the median for 
the class to which they sought transfer. Now that, I can't 
find at the moment. Do you recall that, Mr. Moore?

MR. MOORE: Yes, but I don't remember the document
it was.

MRS. MOTLEY: It may be in the testimony of the
Superintendent. Your Honor, I'm sorry. I'm unable to find 
it, Your Honor; exactly what that was.

THE COURT: Well, now, on that particular point
only, you would think that that feature would be met as to 
the adequacy of the pupil's academic preparation for admis­
sion to a particular school, and I quote that from the plan, 
if the same academic standards are applied to the negroes 
coming into the tenth grade from another school as applied 
to those whites being promoted to the ninth grade -- from 
the ninth grade to the tenth grade, in the same school --

MRS. MOTLEY: I think -- I think v>5 have dealt with
this, now, as I recall, in our proposed findings of fact.
I'm pretty sure we have this spelled out there, exactly 
what obtained in 1961 when this plan was in operation, and 
the point being that the negro students who applied for 
transfer had to meet a certain score, -- 

THE COURT: Well, I've looked —
MRS. MOTLEY: -- in order to get --
THE COURT: You might look at your findings of fact,

starting along about number seventeen where I believe --



Hearing on Motion for Further Relief 258

MRS. MOTLEY: Number seventeen, is it? Yes, seven­
teen and eighteen go into this.

THE COURT: Nineteen.
MRS. MOTLEY: Oh, nineteen.
THE COURT: Nineteen, specifically.
MRS. MOTLEY: Well I don't think that's it either,

Your Honor. It states our contention there that the cri­
teria of the plan should have been applied in the assign­
ment, transfer and continuance of all students in those 
grades.

THE COURT: Now look at twenty-one.
MRS. MOTLEY: Twenty-one?
THE COURT: I think maybe that gets it.
MR. EDENFIELD: Yes, sir.
MRS. MOTLEY: Yes, I see it here. In 1961, only

those negro students of the one hundred and twenty-nine who 
scored the median score for the eleventh jr twelfth grades 
to which they sought to transfer on the form 2a tests or 
who scored at or above the national norm for such tests 
were selected for the form 2b test. Considered for the 
second tests also were those negro students of the hundred 
and twenty-nine who scored within ten per cent of the median 
of the class to which they sought transfer. That's what 
I had in mind. I think that's where I got the ten per cent 
of the median of the class to which they sought to transfer. 
The form 2b test is more of an intelligence test, and so on.



Hearing on Motion for Further Relief 259.

THE COURT: That doesn't say --
MRS. MOTLEY: Yes, sir.
THE COURT: —  that they were given a, required

to make ten per cent more than the --
MRS. MOTLEY: No, I see where I got the ten per

cent now. They had to score the median or within ten per 
cent of the median, as I understand it. Yes, a score 
within ten per cent of the median of the class,

THE COURT: Well, isn't that a fair test?
MRS. MOTLEY: No, sir, because there are white

students in the class who did not score that, who are below 
the median; and as I said before, what they are saying is 
that negroes have to score the median whereas white students 
can score below the median, and they are in that class.

THE COURT: You're saying then that on the academic
basis if they make the same grade, as the minimum grade 
made by a white child going from the ninth to the tenth, -- 

MRS. MOTLEY: That's right.
THE COURT: Would be the test and not the median,

is that right?
MRS. MOTLEY: That's right. In other words, if

there can be white students in that class below the median, 
there can be negro students. The same test has to be given 
to all students, and those who got ninety in one class, and 
those who got fifty are in another, whether they are negro or 
white. But that's the way it operates.



Hearing on Motion for Further Relief 260.

THE COURT: I see.
MR. EDENFIELD: May I just --
THE COURT: Yes, sir,
MR. EDENFIELD: I would like to point out all this

is ancient history, her twenty-first finding, which shows 
on its face that that was abandoned before 1962. If you 
look at the last sentence of twenty-one, she says herself, 
in her own finding of fact in the last sentence, it's not 
the last sentence; it's the next to last sentence, "In 1962 
the applicants for transfer were not given any special 
tests." As a matter of fact, this business of the median 
was applied in 1961. For the year 1962, we abandoned it.
We gave no special tests, and as I understand what Dr. 
Letson testified, the only tests now are, that are given 
are the tests given to every student, white and negro, 
throughout the Atlanta School System. And the only require 
ment that one must meet according to fchosi tests is reason­
able assurance of academic success in order to transfer.
All of this business about the median is gone with the wind 
and has been since 1961.

MRS. MOTLEY: But Dr. Letson, I don’t recall that
testimony previously, I thought that this Exhibit 6 here 
was what he gave us with respect to what is now being done. 
There’s no date on here, and I think the record ought to 
clarify that, Your Honor. And if that's the case, I think 
we are in a situation in which, which is far more nebulous



Hearing on Motion for Further Relief 261.

than we were before. We have here a statement all you have 
to have is reasonable assurance of academic success. I 
would like to know what that is.

THE COURT: Well, I call attention to the fact that
you have not shown in the case any one negro that he or she 
met the test involved and was turned down. And I have said 
before that if you do not show there was unfairness as to 
one, I do not see how you can just make a broad charge that 
it was unfair as to all.

MRS. MOTLEY: I think all we have to show, Your
Honor, is that a different standard is applied to negroes, 
and even this standard, this vague standard which we have 
just heard of, reasonable expectation of academic success 
being applied to negroes and not to whites is another way 
of discriminating --

THE COURT: Let's be a little more specific there.
Mr. Edenfield says the record shows that J"he test is just a 
reasonable academic test. How would you like to improve on 
that test?

MRS. MOTLEY: I would like to give the same test
to every student in the tenth grade.

THE COURT: What kind of test would you like to
give?

MRS. MOTLEY: The achievement test or whatever the
academic test is which is given. If that's going to be the 
standard of assignment —



Hearing on Motion for Further Relief 262

THE COURT: Well, now, I don't know what the gen­
eral academic test is that's been given. What does the 
record show?

MRS. MOTLEY: I think they are described in this
letter, and in the paragraphs which we have just gone over. 
That's plaintiffs' Exhibit 4 , I believe, he attempted to 
describe those tests and to explain them.

MR. EDENFIELD: May I see it?
MRS. MOTLEY: I think that's where he attempts to

describe the tests, and in the findings of fact which we 
have just gone over, there's an attempt to define these 
tests.

MR. EDENFIELD: May it please the Court —
MRS. MOTLEY: I don't know whether this is —
MR. EDENFIELD: —  this document to which she re­

fers says specifically, this is a letter to Mr. Moore ex­
plaining the questions relating to tests used in evaluating 
students who apply for transfer in I9SI; this --

MRS. MOTLEY: What about this plaintiffs' Exhibit --
MR. EDENFIELD: This is an explanation of what

took place in »6l and has nothing to do with what was done 
in '62.

THE COURT: Mr. Edenfield, do you have anything in
the way of a resolution or anything showing what was adopted 
in 1962?

MR. EDENFIELD: I don't know that we have a resolu-



Hearing on Motion for Further Relief 263.

tion, Your Honor; but I say this, Dr. Letson is here, and 
he

THE COURT: Well, to me It's rather nebulous.
We'll wait until the plaintiff --

MR. EDENFIELD: All right.
THE COURT: —  completes hers and then -- then

I'll hear from that.
MR. EDENFIELD: I say this, Your Honor. It's in

my response to her findings of fact which I read into the 
record when we were here before, but that's not testimony.
I think it might should come from Dr. Letson.

THE COURT: Yes, sir.
MRS. MOTLEY: I believe Dr. Letson testified about

this at the last hearing, and I'm trying to find it, if I 
can. Yes, on page 5 7, Mr. Edenfield say to, I guess that's 
Mr. Letson, "Did I understand from your testimony and from 
your affidavit that no special tests were siven applicants 
for transfer in '62," which means that he nas already testi­
fied as to that, and I'm trying to find now specifically 
where --

MR. EDENFIELD: Your Honor, I think this clarifies
the record somewhat, if she would read the next sentence.
I was examining Dr. Letson at this time and I believe this 
is -- does Your Honor have the deposition there?

THE COURT: Yes.
MR. EDENFIELD: Page fifty-seven. "Did I understand



Hearing on Motion for Further Relief 264.

from your testimony and from your affidavit that no special 
tests were given applicants for transfer in *6 2?" And 
answer, "That's correct." Question, "In other words, they 
were given exactly the same tests given to every other stu­
dent in the room both from which they came and to which they 
sought to go?" Answer, "Correct." In his affidavit, also, 
if Your Honor please --

MRS. MOTLEY: Yes, but that doesn't say, Your Honor,
what score they had to make to get in, and that's what we 
are trying to find. That says they were given the same 
tests, but that doesn't mean the same standard applied.

THE COURT: You don't show there was any different
score.

MRS. MOTLEY: Well, that's what I'm trying to find.
I thought there was some indication shown how they deter­
mined the negroes to be admitted.

THE COURT: Well, I -- I'll give you an opportunity
to find that. Mr. Letson's testimony begins on page twenty- 
six of this transcript.

MRS. MOTLEY: Well, I was going to look at his depo­
sition because I see here I keep referring to testimony on 
his deposition, and we offered the deposition in evidence.
I thought we had gone over the procedure applied in each year, 
Your Honor, very thoroughly.

THE COURT: On page twenty-six you say this: "Dr.
Letson, I'd like to show this application for admission,



Hearing on Motion for Further Relief 265.

assignment or transfer, and ask you if that is a 1962 ap­
plication for admission." Answer, "Yes, it is, with the 
comment that we did not require a notarization." Now would 
that application for admission in 1962 throw any light on 
this?

MRS. MOTLEY: No, I don't believe it does, Your
Honor.

THE COURT: That's plaintiffs' Exhibit 2 .
MRS. MOTLEY: No, sir. It just says, "Give reason

for requesting transfer." It doesn't say anything about 
tests. But it may be in his deposition, Your Honor. I 
will have to look.

THE COURT: I'll say that plaintiffs' Exhibit 2

which I have in my hand here does not have anything in it as 
to the scholastic attainments made by the applicant.

MR. EDENFIELD: Your Honor, while Mrs. Motley
searches for it, might I say just a word ---

THE COURT: Yes, sir.
MR. EDENFIELD: -- about -- her motion in this case

took on two aspects, as Your Honor recognized. One of them 
was an assault on the plan itself seeking to substitute a 
different plan. The other was a contention which we are now 
arguing as I understand it that the plan is being unfairly 
administered. Now I have read every case that Mrs. Motley 
cited and I was prepared last time to discuss them, but Your 
Honor didn't call on me to do so. Every case that I have



Hearing on Motion for Further Relief 266

found, including everyone she cites where there was a com­
plaint about the administration of an existing plan, there 
was an effort to show that a named student was discriminated 
against in a named manner. Now I'll admit there are cases 
where there have been no plan, where there have been not the 
slightest move toward desegregation, then you can bring a suit 
without showing discrimination against anybody. But once 
you've made a start and once you have a plan which is in 
force, as I understand the law and as these cases hold, you 
must come in and you have to show it's unfairly administered, 
and show that student A applied and that as to him it was 
unfairly administered. And if I might call Your Honor's 
attention to the —  for example, she cites Norwood versus 
Tucker.

THE COURT: Well now, Mr. Edenfield, if you don't
mind, let's hold that until we get the record clear.

MR. EDENFIELD: Oh, all right sir.
THE COURT: And let's go back to this. Your first

point there as to attack on the plan. Now if, if the plan 
itself contemplated that there would be unequal tests given 
to a negro transferor than to whites going to the same 
grade, if that is in the plan, then it would be subject to 
criticism. But what I'm trying to find now is a factual 
matter. What I have before me now is that in 1962 there 
was a change in the procedures of the Atlanta Board of Educa­
tion. That in 1962 as shown by plaintiffs' Exhibit 2 , there



Hearing on Motion for Further Relief 267.

was an application for admission, which I have before me.
The application for admission does not contain anything about 
scholastic requirements. In the next place, it’s been stated 
by Dr. Letson or Dr. Letson has been quoted as saying that 
in 1962 the same standards were applied, but until now I 
have not been able to determine from any source what were 
the tests, what were the standards applied in 1962, —

MRS. MOTLEY: Excuse me.
THE COURT: —  and that is the point here where we

are rather fuzzy on the record.
MRS, MOTLEY: Excuse me. I found it.
THE COURT: Yes.
MRS. MOTLEY: It's in the deposition of Dr. Letson

on page twenty. I will read it, if Your Honor wishes. "Now 
in May of 1962, have you had any requests in grades ten, 
eleven and twelve for transfer?" Answer, "Yes." "How many 
would you say?" Answer, "Approximately three hundred."
"Are these negro and white?" Answer, "I am not certain 
whether any white are included in that group or not."
Question, "What is the present status of those applications 
for transfer?" Answer, "They are in the process of being 
evaluated." Question, "Have they been given any tests?" 
Answer, "No, we aren't planning to give any tests this year." 
Question, "What are you planning to do?" Answer, "The an­
nouncement was made that there would be no special tests, and 
that we would utilize the test scores that were already avail­



able in the schools." Question, "Are any other criteria 
going to be applied to these three hundred, such as proximity 
to school?" Answer, "That will certainly be taken into con­
sideration in the evaluation. But there is no positive 
policy related to it, just as there were exceptions last 
year in terms of proximity for justifiable educational rea­
sons," Question, "Are there any other criteria that you 
can think of that would be applied to these three hundred 
who have applied for transfers in September" —  pardon me —  
"1962?" Answer, "The test scores in proximity to school" —
I think it should read "test scores and proximity to 
schools" —  "subject to variation for educational reasons, 
plus an interview that will be a part of the procedure."
Now there’s another test applied to negroes not applied to 
whites. Question, "Same interview committee?" This is with 
reference to 1961. Answer, "Not necessarily the same per­
sonnel, but generally constituted in the same way." Question, 
"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 
it before?" Answer, "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." And then it goes 
on to say how many schools are going to be involved and so

Hearing on Motion for Further Relief 268.

forth



Hearing on Motion for Further Relief 269

THE COURT: Let me ask you this question. If, in­
stead of giving tests, they use the tests already given in 
the respective schools involved, why would not those tests 
show the educational qualifications of the student.

MRS. MOTLEY: They do. I should think that the --
they give a test which shows the achievement of the student 
and that then they give another one, an intelligence test, 
which I guess shows his potential. And I’m not certain as 
to what these tests measure, but I think if the same test 
is given in a negro school that’s given in a white school, 
then you will have negroes making a certain score and whites, 
and so forth, and they will vary on that scale, and if this 
education they are getting is the same, —

THE COURT: That should be clarified for this rea­
son. Let us assume that there are two schools involved, and 
let us assume that the general level of academic scholarship 
and standing in one is higher than the other. Now a test is 
nothing but a relative thing. A person making, say, seventy 
per cent in one school possibly might not make but sixty per 
cent in another. Therefore, if you are going to take these 
tests entirely on the basis of the grades made in the dif­
ferent schools, they may not, may not be a correct measure. 
There are points there that might be a good idea to get Dr. 
Letson maybe to explain that to us, because I do not know 
how the School Board is administering this matter of using 
the same tests which have already been given, which may be



Hearing on Motion for Further Relief 270.

the annual grades of the student in the different schools. 
Now if, if you have that in the record, we wouldn't need 
any further testimony. If it is not in the record, I think 
it ought to be clarified.

MRS. MOTLEY: Well, what we have in the record is
what I have just read, is that the test scores are going to 
be used in the same manner as last year, and we are clear 
on how we did it in 1961, and he is saying he is certain 
the calculation would be the same this year. If he is using 
some other test, I agree that's not in the record.

THE COURT: What page of the deposition?
MRS. MOTLEY: That's page twenty through page

twenty-one or to the middle of page twenty-one, I guess.
MR. EDENFIELD: May it please the Court, I think

that's perfectly clear to me. I thought it was to Mrs. 
Motley and to the Court. What happened is that in 1961 
when a child sought a transfer, they brought him in and gave 
him or her a special test and applying the criteria of the 
plan to a determination based on the outcome of that test, 
whether or not the transfer would be granted. For 1962 we 
didn't abandon the criteria of the plan, but instead of 
calling in those students who wanted transfers and giving 
them special tests, we took standard tests given throughout 
the Atlanta schools, the same tests in the ninth grade, 
went straight through the schools, negro and white, same for 
the eighth grade. In other words, these are standard tests



Hearing on Motion for Further Relief 271.

given on a nationwide scale.
THE COURT: Well, that clarifies --
MR. EDENFIELD: And your accomplishment in it in

Timbuktu will be comparable, a comparable accomplishment to 
somebody else in Key West. As I understand it, they are 
nationwide tests, and when you make a seventy on it, that 
means you scored a certain amount and a certain level of 
education, no matter where you are, whether it's a negro 
school or a white school or north or south, east or west.

THE COURT: What1s the name of that test? It has
a technical name in here?

MR. EDENFIELD: SCAT, I believe.
THE COURT: One of these alphabetical combinations,

I think. SCAT?
MR. EDENFIELD: SCAT.
THE COURT: I think that«s right.
MRS. MOTLEY: Of course, I think it's clear that

the School Board also has the burden of showing that the 
curriculi offered negroes in these schools in which they are 
administering these tests are the same as in white. If they 
are going to use a test which they claim is the same for all 
students, they first have to show that it’s a fair test, 
that the negroes have the same curriculi as the schools to 
which they seek admission, and they cannot just say, "Well, 
you see, we gave negroes the same tests, and they made a 
lower score." They have to show that the negroes had



Hearing on Motion for Further Relief 272.

initially the same opportunity to make the same score.
THE COURT: I don't follow you on that. That's --

let's assume that the scholastic attainments of students in 
the tenth grade of a white school, or vary that of the tenth 
or ninth, the same grade in a colored school. Would you, 
would you say if that were true, unfortunate though it may 
be, that nevertheless it would be wise to take a negro from 
the ninth grade and put him in the tenth grade when he could 
not measure up to the attainments of the white children in 
the tenth grade? Would you be doing any benefit to the —  
to a negro to put him in that situation.

MRS. MOTLEY: Well, I think they could only exclude
him or say he was not eligible for that white tenth grade 
class when they show he had the same opportunity to make 
the same score as the white student in the school which they 
maintained for him.

THE COURT: If the same test was given to him which
they call the SCAT test and he did not measure up to the 
minimum requirements of the tenth grade in a white school, 
are you saying that he should be admitted anyway because 
he hasn't or wasn't given the opportunity to attain that.

MRS. MOTLEY: Oh, yes, because what they are then
saying is, "Although we gave you an inferior education all 
along, we now take advantage of that to continue to give you 
an inferior education. And we'll take advantage of that fact 
right now and say 'You don't measure up.1"



Hearing on Motion for Further Relief 273

THE COURT: Well, now, Mrs. Motley, I'm no educator
and no student of this, but like Mr. Will Rogers said, most 
of what I know I read in the newspapers, and I have observed 
in certain tests in Washington, D. C. and other places, that 
they say the whole environment plays a big part in the pro­
gress that a child in a school makes, and I do not see, 
though, how you could satisfactorily run a school system, 
regardless of the reason, because what we are saying here, 
it would apply just as well to a white child in a slum 
area where people were unfortunate, and nobody blames any­
body for misfortune or not having an opportunity, you under­
stand; but that, whatever the reason, it doesn't seem to me 
to be logical, a logical way to run a school to move a child 
from the ninth grade in a school who is, the intellectual 
level may be lower, regardless of the reason, and put them 
in the tenth grade in another school where you will have to 
fall behind and can't keep up. Do you say -- Are you saying 
that they should do that?

MRS. MOTLEY: Precisely, Your Honor; and that's why
they give two tests, one of which is an intelligence test 
to determine the native ability of that negro student from 
the environment of the home. His potential. And the stu­
dents in those schools are assigned solely on the basis of 
their achievement, because every educator knows that his 
achievement may be one thing, but his native intelligence 
another. And that's why they give two tests, because the



Hearing on Motion for Further Relief 274

children who come from those inferior homes have a potential 
which the school has a duty to develop.

THE COURT: Then if they had the —  they did not
have the training, educational attainments, but if they 
had the intelligence to be able to keep up with those in the 
tenth grade, you would say put them in the tenth grade even 
though you got to skip over a certain amount of learning 
which they did not receive? Is that it?

MRS. MOTLEY: Well, you have to provide in that
school the learning which he should have had. The school’s 
duty is to educate people in accordance with their potential 
and not say, "Well, we are sorry the world outside is one 
way; we can't do anything for you." That’s not a school.

THE COURT: Well, now if you have any citations by
any Court that says that’s good law, I’d like to read it, 
because I have never seen anything indicated except this, 
that in placing any child, regardless of race, color or 
anything, into any class with other students, that there has 
to be some comparable standard of educational attainments 
where he would be in a measure equal.

MRS. MOTLEY: Well, you know what’s usually done,
Your Honor, is that when you live in a certain area, you go 
to that school regardless of your achievement or intelligence 
or anything else, and you just fall wherever you fall on the 
curb. And that’s what we are suggesting with our proposed 
plan, that students are to be admitted to a school and what­



Hearing on Motion for Further Relief 275

ever his potential is, whatever —
THE COURT: You are right but —
MRS. MOTLEY: -- his achievement is, that school

has a duty to help him.
THE COURT: But by saying all children in the same

area go to the same school doesn't mean they are all put in 
the same class by any means.

MRS. MOTLEY: That's right Your Honor.
THE COURT: When they get to that school, they go

up or down, —
MRS. MOTLEY: That's right.
THE COURT: —  in accordance with what they are

able to do.
MRS. MOTLEY: That's right.
THE COURT: But, if you say they are going from one

school to another, and they didn't apply the same tests,
I want to ask you this, you are saying if they go from a 
school where the educational standards are low in the ninth 
grade to another school where the educational standards are 
high, and go into the tenth grade, that they should go into 
there whether or not they are equal in capacity to the stu­
dents in the tenth grade.

MRS. MOTLEY: Yes. If it's done on a geographical
basis, if a student moves from one area of the city to an­
other area of the city, normally and under the segregated 
system, he went to the nearest school, and they gave him tests



Hearing on Motion for Further Relief 276

in school, and he may have been in the D class or the C 
class or the A class. But he went to that school, because 
that’s where he lived, and in the school environment he was 
entitled to whatever level he fell into, whether he was an 
A student or B student or D student.

THE COURT: That’s exactly --
MRS. MOTLEY: That's why they give tests, and

that’s what we are suggesting by our plan. If the school 
authorities would like now to give these tests and to say, 
"Well, you will be admitted if you meet a certain score, 
and this applies to negroes only," and we say that the law 
is that that cannot be; that the same standard has to be 
applied to negroes as is applied to whites, and is not being 
done here, and that the simplest standard is a geographical 
location standard for the assignment of pupils, and once 
they get in that school, those students will have to do 
whatever they do by way of tests.

THE COURT: I don’t see any relationship between
geographical area and educational standards because I say 
again, regardless of the area, when they go to school, they 
will still be in an appropriate bracket according to their 
educational requirements, and you cannot take everybody 
from any area and put them all in on the basis of area. 
That’s no measure necessarily of their scholastic standard. 
And if they give this test which they call SCAT, seems to be 
a nationally recognized test, or tests, and if they give it



to all students, colored or white, that -- that seems to me 
would be an equal test as to their scholastic attainments 
only. I'm not talking about anything else but scholastic 
attainments. I can't see that there's any discrimination on 
that basis.

MRS. MOTLEY: Well, I think there is because you
see what they'll then be doing, as I say, is taking advan­
tage of the low levels of achievement in the negro schools 
resulting from segregation, and say, "Now, you see, you 
don't measure up," and that's why it's unfair and I don't 
think the Courts are going to sustain that.

THE COURT: I want the record to be so clear that
no one can misunderstand it, and if I am misquoting you,
I want you to correct it. You are saying that if a negro 
goes from the ninth grade of a colored school up to the 
tenth grade of a white school and that if under this test, 
SCAT, whatever that means, he does not have the scholastic 
ability to qualify for the tenth grade in the white school, 
that he should nevertheless be admitted to the tenth grade 
of the white school because society for some inexcusable 
reason has not qualified him while in the colored school, 
up to the basis where he would qualify in the tenth grade. 
Now did I state your position correctly.

MRS. MOTLEY: No, sir. I would like to try to state
it.

Hearing on Motion for Further Relief 277.

THE COURT: All right.



Hearing on Motion for Further Relief 278

MRS. MOTLEY: I think that the students in the
tenth grade should all be given the same test, if a test is 
to be given, as a basis for assignment to that grade. If 
the School Board insists on giving a test, that test in 
order to be a fair test must be shown to be given to students 
who have had the same basic training to qualify to take the 
test, and they cannot impose upon students a test where it 
appears that students have not had the same basic training 
in the school for that test. Now if they can show that 
negroes have had the same curriculi, the same quality of 
teachers, the same length of training to meet that test, then 
I say it's a fair test. And, that the students may be as­
signed on the basis of the score which they make on that 
test; all of the students. That negroes may not be required 
to meet the median score or to fall within ten per cent of 
the median to get into that class, because that’s a distinc­
tion based on —  against negroes, or a color distinction 
based on race, and there can be no such separate classifica­
tion of negroes.

THE COURT: Let’s leave the median out for the time
being. The effect of your contention if carried out would 
be, though, that if a child came from the ninth grade of a 
negro school where the standards are very low, and we may 
assume that society is at fault for the ninth grade from 
which he came being very low, that nevertheless he should be 
admitted into the tenth grade of the white school, right.



Hearing on Motion for Further Relief 279

MRS. MOTLEY: He should be admitted to the tenth
grade of the white school according to the standard applied 
to the white children already there, or who are to be as­
signed there. Now if the standard is residence, then he 
will be admitted, if he lives in that area of that school.

THE COURT: Now just a moment,
MRS. MOTLEY: And if the standard —  I'm sorry.
THE COURT: Now just a moment. If you, no one has

said that the standard to get into a school, a certain grade 
in that school, is necessarily a geographical —

MRS. MOTLEY: Well, the Superintendent said that,
and I think —

THE COURT: Not into the grade, Mrs. Motley. I
said to get into a school.

MRS. MOTLEY: Well, I just read from page twenty to
twenty-one, and he said proximity to schools would be taken 
into consideration.

THE COURT: Yes.
MRS. MOTLEY: As to these three hundred who are

applying.
THE COURT: Yes.
MR. EDENFIELD: That was in 1 9 6 1.
MRS. MOTLEY: In other words, negroes have to show

that they live nearer to that white school. That applies 
to the three hundred. Moreover, he is going to give them an 
interview.



Hearing on Motion for Further Relief 280

THE COURT: Every school plan I have ever seen, and
going back to the reading of the earliest decisions, back 
a hundred years ago, this placement plan is not —  is nothing 
new. They’ve all had area, geography as an element, and 
that’s about all he said here. It is just one of the 
elements.

MRS, MOTLEY: But he doesn't show that applied to
the white students admitted or to be admitted, and they 
may have come from the other side of Atlanta.

THE COURT: All right. Anything else?
MRS. MOTLEY: That's all for the plaintiff, Your

Honor, --
THE COURT: All right.
MRS. MOTLEY: -- unless the Court has some other

questions.
THE COURT: I'll hear from the defendant.
MR. EDENFIELD: May it please the Court, I person­

ally would like to say that I think Mrs. Motley has the bur­
den of proof in this matter all mixed up. She says, for 
example, that the burden is on us to show that the curriculi 
in these schools was the same. She says that the burden is 
upon us to show that white people are treated the same way.
As I understand these cases, the several cases that she cites, 
the student came in and said, "You are applying this plan in 
such a way as to discriminate against me, and I want an in­
junction, and I want an order that I be admitted to a par-



Hearing on Motion for Further Relief 281.

ticular school." Now that is not what she does. For 
example, in her case, of Norwood versus Tucker, which is 
the Arkansas case, this was a suit by an individual plain­
tiff, and certain intervenors complaining of what —  of 
their individual school assignments. And the City of 
Little Rock had adopted a pupil placement plan placing or 
basing it entirely on attendance area, but in applying it, 
they discriminated against negroes. This negro came in and 
said that this was being administered in such a way as to 
discriminate against him, and the Court agreed with him and 
held it unconstitutional, and then here’s what the Court 
said, among other things: "If the criteria should be ap­
plied only to negroes seeking transfer or enrollment in par­
ticular schools and not to white children, then the use of 
the criteria should not be sustained," and so on, and so 
forth. But everyone of these cases, Norwood versus Tucker, 
Jones versus Alexandria, which is one of the cases she 
cites, are suits by an individual plaintiff complaining of 
denial of their individual applications for transfer. Ex­
actly the same thing. Dove versus Parham, 282 Fed. 2d,
2 5 6, was a suit by an Individual plaintiff complaining of 
the denial of their individual application to attend a 
particular white school. The Board adopted a plan, had ap­
plied criteria, but it left the racial situation exactly as 
before. Then this individual came forward and says, "You've 
discriminated against me." Exactly the same thing is true



Hearing on Motion for Further Relief 282.

in Dodson versus Chrlottesville, another case she cites.
This was appealed by an individual negro plaintiff complain­
ing of the denial of his individual application to attend a 
particular white school. In everyone of these cases, the 
person who claims to have been discriminated against not only 
was the burden put on them, but they assumed it and they 
carried it. Here, as I understand, she says, "We don't have 
to prove anything. It’s up to the defendants." And on that 
basis, I say frankly, she hasn't made out a case that brings 
her within the authority she cites. Now it's quite a differ­
ent situation, if the Court please, as far as the Memphis 
case or the Tampa case where there had never been any effort 
to desegregate, where there had never been any progress made, 
where there had never been a plan filed. In those cases, 
in all fairness I must say that the Fifth Circuit has 
swatted the school board hard. It has put them in a vise 
so to speak. On the other hand, in those areas where there 
have been plans submitted and approved and where there has 
been some progress made, both in the Fifth Circuit and in the 
Fourth Circuit the Courts have been very tolerant In en­
couraging that progress and in not slapping down the school 
board. For example, in this case of Dodson versus Char­
lottesville, the Board itself came in and admitted that they 
were unfairly applying their own plan and they told the 
Court they were doing it unfairly. The Court held that the 
plan was acceptable, but was not being administered fair



Hearing on Motion for Further Relief 283

between white and negro pupils, and, because the Board de­
parted from the plan itself. But the Board was affirmed be­
cause the Board had made a start, had acted in good faith, 
and admitted discrimination, but said action was only tem­
porary. In other words, in those places where a start has 
been made, where a plan has been adopted, the Courts have 
leaned over backwards to go along with it. In those in­
stances, and in those areas where there has been no start, 
the Courts have slapped down, and incidentally, this is the 
only case I have found in, not only among the ones she cites, 
but anywhere else, where there was an attack upon a plan 
itself which had been approved. In this Dodson versus 
Charlottesville case, they sought to overturn a plan which 
had previously been approved, just as she seeks to do in 
this case. Not only did they not overturn the plan but they 
affirmed the School Board, although admittedly it was vio­
lating its own plan. For that reason, Your Honor, we re­
spectfully submit that she, if there were any, she had any 
rights in this case, she has not carried the burden of 
showing it.

THE COURT: What do you say about speeding up the
plan.

MR. EDENFIELD: Your Honor, the Supreme Court said
we should move with deliberate speed, and the Courts have 
since said that the accent should not be put any more on 
speed than it should be put upon deliberate. I'll say we



Hearing on Motion for Further Relief 284

are moving with deliberate speed. The number of students 
this year who are integrated are more than last year, both 
in number of grades and in number of students, and I re­
spectfully submit we are making progress, and if allowed 
to continue making progress, the situation will solve it­
self to the satisfaction of all concerned, I believe.

THE COURT: What would be the effect on the Atlanta
School System if, I believe they asked here that you start 
at the first grade too, what would be the practical effect 
of integrating all first grades in the School System.

MR, EDENFIELD: The practical effect of it, Your
Honor, I don’t know that I am enough of an educator to 
answer that, I don’t know. I do know this, that the Courts, 
as Your Honor is aware, have said that we do not have to 
follow any crash program of wholesale integration. Now in 
some places, as Your Honor knows, they have started in the 
first grade rather than at the —  as we did in the high 
schools. As to a comparison between them, I just wouldn't 
know what the impact would be.

THE COURT: Let me say this. When this matter first
started, I had some question in my mind whether it ought 
to start with the first grade or whether it ought to start 
at the other end. The School Board suggested starting in 
the twelfth grade. I had before me evidence then, and it's 
in the record, and was carefully considered, as to the number 
of whites and number of negroes in the Atlanta schools, the



Hearing on Motion for Further Relief 285

shortage in housing, the change in the residential pattern, 
and all of those factors, and when I accepted the plan 
starting at the twelfth grade, I was largely prompted to do 
so by the fact that it didn't seem practicable to start in 
the first grade, because if you start in the first grade, 
you have the entire grade changed, and the building situa­
tion and all the other factors in there seemed to me that 
that would have been a little bit too drastic with which 
to start out. Now I don't have any, any evidence before me 
to show that there's any change in that situation at this 
time.

MR. EDENFIELD: I don't think there is, Your Honor.
THE COURT: And I don't know whether the burden is

on the defendant to show that that would be difficult or 
some reason why that shouldn't be. If the defendant wants 
to show that, I'll give them an opportunity to do so.

MR. EDENFIELD: You mean the movants?
THE COURT: No, I mean if you, if your clients, if

they want to show that the speed up plan proposed would be 
difficult to attain, I'm not saying who has the burden of 
proof, —

MR. EDENFIELD: Well, Your Honor, it appears to me
that we have a plan; it's been approved and it's working.
To change to anything it appears to me would disrupt our 
program. Now it may be we can put up some evidence on it.
I would like to ask, to talk to my client just a minute.



Hearing on Motion for Further Relief 286

THE COURT: I wish you would. We'll take a twenty
minute recess.

(Whereupon, Court was recessed at 11:12 A.M.)
RECESS

(Whereupon Court reconvened at 11:28 A.M.)
MR. EDENFIELD: May it please the Court, Mr.

Latimer and I discussed this briefly with Dr. Letson during 
the intermission, and we didn't come prepared to put up any 
evidence today about a new plan.

THE COURT: Yes, sir.
MR, EDENFIELD: We came to defend the one we have.

Frankly, we feel this way about it, that Dr. Letson says 
that the speed of desegregation is a matter of judgment and 
a matter about which there are all shades of varying opinion 
that he is of the opinion that our judgment was good in the 
first instance and that if our judgment was good then, our 
judgment's good now. The reasons given in the first one, 
when this plan originally was adopted as I understood it, 
as I recall it, was that when a child gets to the eleventh 
and twelfth grade, he has an additional background on the 
basis of which you can make comparisons. Of course, those 
factors are still present. We felt then and Dr. Letson 
still feels now that it would be better to start and to 
continue this program from that end rather than the other 
end and let it come down to the young, to the unnurtured, 
to the uneducated in due course. Furthermore, we feel like



Hearing on Motion for Further Relief 287

there’s nothing to change our judgment that we made before, 
and that if the burden rests on anybody, it doesn't rest 
on us. It rests on the others, and for that reason, we 
just don’t have anything to present at this time,

THE COURT: Well, I agree with you, and the results
obtained in Atlanta have been very highly satisfactory.
There has been harmony and there has been cooperation and 
it’s been commended in a great many news articles and other 
matters throughout the country, and I have personally felt 
that that was more important than just a little bit more 
speed.

MR, EDENFIELD: Yes, sir.
THE COURT: But what I really had in my mind was

this, that the proposed speed up plan which was put in here 
at a rather late date, without any —  any -- very much 
urgency or any force behind it, been given in this case, 
very little attention been paid to it by the proponents of 
it, contemplates some things that I thought might work out 
a practical inconvenience such as this. As I said before, 
starting in the —  in the first grade, it would be not 
selective or not by transfer, but more or less wholesale; 
and I didn’t know how that would work out in a practical way.

MR. EDENFIELD: Your Honor, I think that was another
thing that was running through my mind. Any speed up from 
the other end would approach a crash program, which as I 
understand it, all the Courts have said was not necessary in



Hearing on Motion for Further Relief 288

this area.
THE COURT: Now I'm willing to let it go as it is,

or if the defendants change their minds anytime before I 
make my ruling on this and care to put in any evidence on 
that, I -- I'll be willing to accept it. But I'll take 
things as they are now.

MR. EDENFIELD: All right, sir.
THE COURT: Is there anything else from either side

Now I'll take the matter under advisement, ladies and gentle 
men, and decide it as soon as I possibly can. Close the 
Court until two o'clock.

(Whereupon, Court was closed at 11:40 A.M.)
END OF TRANSCRIPT

UNITED STATES OF AMERICA 
NORTHERN DISTRICT OF GEORGIA

I, James G. Pugh, Official Court Reporter of the 
United States District Court for the Northern District of 
Georgia, do hereby certify that the foregoing 6l pages con­
tain a true transcript of proceedings had before the said 
Court held in the City of Atlanta, Georgia, in the matter 
therein stated.

In testimony whereof I hereunto set my hand on this 
the 12th day of November, 1 9 6 2.

/S/ JAMES G. PUGH____________
Official Court Reporter 
Northern District of Georgia



289.

ORDER OP COURT ON PLAINTIFFS' MOTION
_______ FOR FURTHER RELIEF._________
(Same Title - Filed Nov.-15, 1962)

STATEMENT OF THE CASE.
This Court on January 20, i960 approved a Plan of 

desegregation proposed by defendant Atlanta Board of Educa­
tion. Details of that Plan may be obtained by reference to 
188 F.S., 401 and 188 F.S., 4l2. On September 13, i960 the 
Court provided the Plan in question should begin in Septem­
ber, 19 6 1 and apply to the eleventh and twelfth grades of 
the schools. The Plan has been in operation for the two 
school years beginning September, 19 6 1 and September, 1962 

respectively, and pursuant thereto fifty-three Negro students 
have transferred from schools previously Negro schools to 
schools previously all white schools. This was done peace­
ably and without violence, largely due to the unusually 
effective methods employed by the Mayor of Atlanta, its 
Chief of Police, and all groups working in concert with them.

The Plan adopted by this Court on January 20, i960 

was the Plan which was adopted upon the insistence of plain­
tiffs in order to comply with the mandates of the United 
States Supreme Court and other courts, to the effect that 
discrimination should cease and that compulsory segregation 
should no longer be enforced in the Atlanta Public Schools.

It is significant to note that the Plan in question



Order of Court on Plaintiffs1 Motion 290

at the time of its adoption met with the approval of these 
plaintiffs. An appeal from this Order of Court was filed 
but upon motion of the plaintiffs was permitted dismissed 
by the Court of Appeals.

GROUNDS OF THE MOTION.
A large part of the motion filed April 30, 1962 is 

couched in vague and indefinite terms and is largely a 
repetition of charges made against defendants concerning 
discrimination before the Plan had been put into operation. 
Thus plaintiffs seek an injunction against defendants "from 
continuing to maintain and operate a segregated bi-racial 
school system," from "continuing to assign pupils to the 
public schools upon the basis of race and color," from 
"continuing to designate schools as Negro or white," from 
maintaining "racially segregated extra-curricular school 
activities."

Complaint is also made of alleged assigning of 
teachers and others on basis of race and color and maintain 
ing a dual system of school attendance area lines.

There is no disputing that discrimination had ex­
isted prior to the Order of this Court of January 20, i960, 
and that the Order of that date was designed to eliminate 
the discrimination over a period of years. Even plaintiffs 
counsel upon the original trial disclaimed any purpose of 
seeking to have "wholesale integration." The only question



Order of Court on Plaintiffs1 Motion 291

then involved was the plan by which discrimination could 
be eliminated; a Plan was carefully prepared and adopted 
and no appeal taken. The Plan is eliminating segregation, 
but until it has completed its course there will of course 
still be areas (in the lower grades) where segregation 
exists. The Court is therefore at a loss to see how any­
thing could be accomplished at this time by "an order en­
joining defendants from continuing to maintain and operate 
a segregated, bi-racial school system," for the Court has 
already taken care of that in its decree of January 20, 
i960. There is no evidence that defendants are "continuing 
to designate schools as Negro or white," nor that they are 
maintaining "racially segregated extra-curricular school 
activities."

The assigning of teachers and other personnel on 
the basis of race and color is not now passed upon but is 
deferred (as other courts have done) awaiting further pro­
gress made in the desegregation of the students.

The objection to said Plan of Desegregation which 
most impressed this Court related to the charge that it 
caused discrimination between a Negro transferring to a 
grade in a previous white school, in that certain tests were 
required for the transfer to which the white students pro­
moted to the same grade were not subjected. At the hearing 
of this motion, however, it appeared without dispute that 
defendants beginning in September 1962 had ceased using the



Order of Court on Plaintiffs1 Motion 292.

tests required of transfers as used theretofore. In lieu 
thereof as of September 1962 the school authorities gave 
to all pupils in the school system a nationally recognized 
test known as the "School and College Ability Test" (SCAT). 
(See Transcript, p. 22.) Testimony of Superintendent John 
Letson above that this test was given to all students, Negro 
and white, and this testimony was not disputed. Proximity 
of the pupil to the school involved was also considered by 
the Board, as were certain other criteria contained in the 
Plan approved by this Court on January 20, i9 60.

Neither does the evidence show that defendants are 
maintaining a "dual system of school attendance area lines," 
Proximity to the schools in question is a factor considered 
by the defendant Board. It is not shown that defendants 
are acting arbitrarily in connection with the assignment of 
pupils in relation to their distance from the school. It 
does appear that area lines (where such exist) are sometimes 
changed for the sole purpose of relieving over-crowded 
conditions in the schools.

PLAINTIFFS' PROPOSED NEW PLAN.
The original motion filed by plaintiffs on April 30, 

1962 made certain attacks on the Plan of Desegregation 
established January 20, i960, but did not make any complaint 
that the Plan contemplated too much time for the completion 
of the desegregation. Not until the Court required the



Order of Court on Plaintiffs* Motion 293

parties to file Findings of Fact and Conclusions of Law did 
it occur to plaintiffs to make any effort to speed up the 
transition. However, on July 20, 1962 plaintiffs filed a 
paper entitled "Plaintiffs Proposed Plan of Desegregation," 
which does bear some similarity to the Plan adopted by the 
Court on January 20, i960, already in operation for a period 
of two years. However, the Proposed Plan accelerates the 
dates to which the various grades might be integrated 
(which in September 1963 include the ninth, tenth, eleventh 
and twelfth grades) so that in September 1965 "all pupils 
and personnel in grades one, two and three shall be desegre­
gated in the same manner in which the other grades are de­
segregated, as set forth above."

This suggestion by plaintiffs* counsel that the 
Court summarily speed up the Plan already adopted without 
any evidence to show that the new Plan is practicable or 
feasible, is no doubt inspired by one or more recent deci­
sions by appellate courts which do summarily establish a 
Plan of Desegregation. In all such instances, however, that 
action was taken by appellate courts because the school au­
thorities in question had not proposed a Plan, or the dis­
trict judge in question had not ordered a Plan. This Court 
finds no precedent for a trial judge summarily changing and 
speeding up a Plan, already in operation for two years, 
without some facts or circumstances requiring the same.

When this Court approved the Plan on January 20, i960



Order of court on plaintiffs' Motion 294.

many local conditions mitigating against a more speedy 
transition were considered (see 188 F.S., 401), these 
factors included the following:

There were in Atlanta 116,000 pupils, of which ap­
proximately forty per cent, or some 46,400, were Negroes, 
There was a rapid influx of children of school age into the 
city and a shortage of some 580 class rooms, many classes 
then being held in churches and other buildings, and many 
having double sessions. Other problems confronted the 
School Board, caused by slum clearances and changes in 
residential patterns, to which may now be added complica­
tions arising out of large tracts of land being condemned 
for expressways.

The United States Supreme Court has ordered that 
segregation be eliminated "with deliberate speed," and has 
invested the trial judges in the first instance with some 
discretion, bearing in mind all local conditions, as to the 
timing of a Plan of Desegregation. The Plan heretofore 
approved by this Court, and now under attack, has been ad­
ministered fairly and in good faith by defendant Atlanta 
Board of Education, the local authorities have given utmost 
cooperation in maintaining law and order, and the number of 
students being transferred each year from previously desig­
nated colored schools to previously designated white schools 
is increasing at an accelerated rate each year as the lower 
grades are reached. This Court feels that the public inter­



Order of Court on Plaintiffs* Motion 295

ests demand that the Plan now in operation be continued ac­
cording to its terms and not be summarily displaced by the 
new Plan of Desegregation proposed by plaintiffs.

For reasons set forth above plaintiffs' motion for 
further relief and plaintiffs' motion to adopt a Proposed 
New Plan of Desegregation are denied.

This the 15th day of November, 1962,

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

* * * * * * * * * * * * *

NOTICE OF APPEAL TO COURT OF APPEALS 
(Same Title - Filed Dec. 14, 19 6 2)

Notice is hereby given that the plaintiffs in the 
above-named action, Fred S. Calhoun, infant, by Willie 
Calhoun, his father and next friend; Juanita Fears, infant, 
by Johnny Fears, Sr., her father and next friend; Ernest 
Swann, infant, by Ralph Swann, his father and next friend; 
Leonard Jackson, Jr., infant, by Leonard Jackson, Sr., 
his father and next friend; Cornell Harper, infant, by 
Henry L. Harper, his father and next friend and Onithia 
Putnam, infant, by Dock Putnam, her father and next friend, 
hereby appeal to the United States Court of Appeals for the 
Fifth Circuit from the order of the United States District



Notice of Appeal 296

Court for the Northern District of Georgia, Atlanta Division, 
entered in this action on November 15, 1962 denying plain­
tiffs’ Motion for Further Relief, filed on April 30, 1962, 
and plaintiffs« Motion to Adopt a Proposed New Plan of 
Desegregation, filed in this cause on July 20, 1 9 6 2.

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
* * * * * * * * * * *

PLAINTIFFS’ AMENDED DESIGNATION OF CONTENTS * 1 2 3 4
OF RECORD ON APPEAL_____________

(Same Title)

1. Complaint.
2. Answer.
3. The Injunction Order of July 9, 1959.
4. Defendants’ Plan of Desegregation submitted



Contents of Record on Appeal 297.

November 30, 1959.
5. Plaintiffs1 Objection to the Plan filed December

12, 1959.
6. Order of December 30, 1959, amending Defendants1 

Plan of Desegregation.
7. Plaintiffs' Objections to the Plan as Amended 

filed January 8, I960.
8. The Plan as Finally Amended and Filed January 18,

I960.
9 . Order of January 20, i960, approving the Plan 

as Finally Amended.
10. Plaintiffs' Motion for Further Relief filed 

February 26, i9 60.
11. Order Denying Motion dated March 9, i960.
12. Order of May 9, i9 6 0.
13. Opinion of Court of September 13, i960.
14. Plaintiffs' Motion For Further Relief filed 

April 30, 1962.
15. Notice of Motion filed April 30, 1 9 6 2.
16. Deposition of Superintendent of Schools, J. W. 

Letson, on May 21, 1 9 6 2.
17. Defendants' Response to Motion for Further Relief 

filed May 24, 1 9 6 2.
18. Order setting case for hearing on Motion for 

Further Relief on June 28, 19 6 2, at 9:30 a.m.
19. Motion for Rule Nisi filed June 29, 1962.



Contents of Record on Appeal 298.

20. Order setting case for hearing on Order to Show 
Cause July 5, 1962.

21. Order setting hearing on Plaintiffs’ Motion for 
Further Relief on August 2, 1 9 6 2.

22. Plaintiffs' Proposed Findings of Fact and Con­
clusions of Law.

23. All exhibits introduced on hearing on July 31, 
1 9 6 2. (These exhibits to be sent up in original form.)

24. Transcript of Hearing on July 31, 1962.
25. Order of September 14, 19 6 2, regarding Motion 

for Further Relief.
26. Order setting case down for hearing on Plain­

tiffs’ Motion for Further Relief on October 30, 19 6 2.
27. Transcript of Hearing, October 30, 1 9 6 2.
28. Order of November 15, 1 9 6 2.
29. Notice of Appeal filed December 14, 1 9 6 2.
30. This Stipulation.

CONSTANCE BAKER MOTLEY 
JACK GREENBERG 10 Columbus Circle 
New York 19, New York
E. E. MOORE, JR.
Suite 201, 175 Auburn Ave., N.E. Atlanta, Georgia
DONALD L. HOLLOWELL Cannolene Building (Annex)
859 1/2 Hunter Street, N. W. 
Atlanta, Georgia

A. T. WALDEN Attorneys for Plaintiffs
Of Counsel

[Certificate of Service dated Jan. 2, 1 9 6 3]



299.

PLAINTIFFS' FURTHER AMENDED DESIGNATION 
OF CONTENTS OF RECORD ON APPEAL

(Same Title - Filed Jan. 17, 1963)

To The Clerk Of The Court:
Please include as part of the contents of the Record 

on Appeal in the above action, Plaintiffs' Proposed Plan 
of Desegregation filed July 20, 1 9 6 2.

This item is hereby designated as number 22a of 
Plaintiffs' Amended Designation of Contents of Record on 
Appeal. This Further Amended Designation of Contents of 
Record on Appeal shall also constitute a part of the Record 
on Appeal.

CONSTANCE BAKER MOTLEY 
JACK GREENBERG 10 Columbus Circle 
New York 19, New York
E. E. MOORE, JR.
175 Auburn Avenue, N. E. 
Atlanta, Georgia
DONALD L. HOLLOWELL
859 1/2 Hunter Street, N. W.
Atlanta, Georgia

Attorneys for Plaintiffs
Norman C. Amaker 
A. T. Walden

Of Counsel

[Certificate of Service annexed]