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

    Bnpvmt Ghmrt ni tfy> In tt^ States
October Term, 1962 

No. 217

I n the

J o s e p h in e  G o ss, e t  a l.,

y.
Petitioners,

T h e  B oabd oe E ducation  op t h e  C it y  oe 
K n o x v il l e , T e n n e s s e e , e t a l.

ON W RIT OF CERTIORARI TO TH E U N ITED  STA TES 
COURT OF A PPEA LS FOR TH E S IX T H  CIRCUIT

PETITION ERS’ BR IE F

J a ck  G r e e n b e r g  
C o n sta n ce  B a k e r  M o t l e y  
J a m es  M. N a b r it , I I I  

10 Columbus Circle 
New York 19, New York

C arl A . C owan 
2212 Vine Avenue, S. E. 
Knoxville, Tennessee

Z. A lex a n d er  L ooby 
A von  N. W il l ia m s  

327 Charlotte Avenue 
Nashville 3, Tennessee 

Attorneys fo r  Petitioners



I N D E X

PAGE

Opinions Below ................................................................   1

Jurisdiction ........................................................   2

Question Presented ............................................................ 2

Constitutional Provision Involved.... ............................ 2

Statement .................... ......................... ~............. ................  3
Evidence and Holdings: ..........     6

Goss Case ................................................................    6
Maxwell Case .....................................      10

Argument ......................................................... -...................  11

C o n clu sio n  ..........        22

T a ble  oe C a ses

Bolling v. Sharpe, 347 U. S. 497 ..... ................... ........... 22
Boson v. Hippy, 285 P. 2d 43 (5th Cir. 1960) .... .....16,17,18
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955) 18
Browder v. Gayle, 142 P. Supp. 707 (Mi D. Ala.

1956), aff’d 352 U. S. 903 ___ _____ _______- - ..... 15
Brown v. Board of Education, 347 U. S. 483 (1954) .. 3,11,

13,18
Brown v. Board of Education, 349 U. S. 294

(1955) .......................... ............. .......... ............ -3 ,1 1 ,1 2 ,1 6 ,1 9
Brunson v. Board of Trustees of School District 

No. 1 of Clarendon County, S. C. (4th Cir., No.
8727, Dec. 7, 1962) --- --------- --------- ---------------- ---  15

Bush v. Orleans Parish School Board, 308 F. 2d 491
(5th Cir. 1962) .....................~~---- ---------- --------....... 12



11 IN D EX

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) .... 20
Cooper v. Aaron, 358 U. S. 1 .................................. —  11,18

Dillard v. School Board of City of Charlottesville, 
not yet reported (4th Cir., No. 8638, Sept. 17, 1962) 16,17

Goss v. Board of Education, 301 F. 2d 164 (6th Cir.
1962) ........ .................. .......... ............. ..............................  17,18

Green v. School Board of the City of Roanoke, 304 
F. 2d 118 (4th Cir. 1962) .........................................12,16, 20

Jackson v. School Board of City of Lynchburg, 201 
F. Supp. 620 (W. D. Va. 1962), rev’d in part on 
other grounds, not yet reported (4th Cir., No. 8722,
Sept. 28, 1962) ........................................-.....-............ ... 16

Jackson v. School Board of the City of Lynchburg,
203 F. Supp. 701 (W. D. Va. 1962) ..........................  17

Jones v. School Board of the City of Alexandria,
278 F. 2d 72 (4th Cir. 1960) ....................................... -  12

Kelley v. Board of Education of the City of Nash­
ville, 270 F. 2d 209 (6th Cir. 1959) ........................9,17,18

Mannings v. Board of Public Instruction, 277 F. 2d
370 (5th Cir. 1960) .......................................................  20

Mapp v. Board of Education of City of Chattanooga,
Tenn., 203 F. Supp. 843 (E. D. Tenn. 1962) ............ 17

Marsh v. County School Board of Roanoke County,
Va., 305 F. 2d 94 (4th Cir. 1962) .............................. 12, 20

Maxwell v. County Board of Education, 301 F. 2d 
828 (6th Cir. 1962) .........................................................  17

Northcross v. Bd. of Education of City of Memphis,
302 F.2,1 819 (6th Cir. 1962) ___ _______________  12

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) .... 12, 20

PAGE

Roy v. Brittain, 297 S. W. 2d 72 (Tenn. 1956) 13



IN D EX 111

Shelley v. Kraemer, 334 U. S. 1 ...... ..........- ......—.......- 16
Shuttlesworth v. Board of Education, 162 F. Supp.

372 (N. D. Ala. 1958), aff’d on limited grounds,
358 U. S. 101 ....................... ............................................  20

Sipuel v. Board of Regents, 332 U. S. 631 — ............ 16
Sweatt v. Painter, 339 U. S. 629 .................. ..................  16

Taylor v. Board of Education of the City of New 
Rochelle, 191 F. Supp. 181 (S. D. N. Y. 1961), ap­
peal dismissed, 288 F. 2d 600 (2nd Cir. 1961);
195 F. Supp. 231 (S. D. N. Y. 1961); aff’d 294 F. 2d
36 (2nd Cir. 1961), cert, den., 368 IT. S. 940 ............ 20

Thompson v. County School Board of Arlington 
County, 204 F. Supp. 620 (E. D. Va. 1962) .........  17

United States v. Crescent Amusement Co., 323 U. S.
173 ......................................................................................  19

Wheeler v. Durham City Board of Education, not 
yet reported (4th Cir., No. 8643, Oct. 12, 1962) ..12,15, 21

Statutes and Other Authorities:

28 U. S. C. § 1254(1) .........................................................  2
28 U. S. C. §§ 1331, 1343, 2201 and 2202 ...........    3

42 U. S. C. %% 1981 and 1983 ..............................   3

F. R. C. P., Rule 23(a)(3) ...............................................  3
Tennessee Code of 1955, §§ 49-3701 to 49-3703 .......... 13

Tennessee Constitution of 1870, art. 11, sec. 12 ..........  13
Black, “The Lawfulness of the Segregation Deci­

sions,” 69 Yale L. J .  421 (1960) ......... ......................  21

PAGE



I n  t h e

j ^ u p r m p  C o u r t  o f  t l j r  I n t t r t J  0 t a t r u

October Term, 1962 

No. 217

J o s e p h i n e  G o s s , et a l . ,

v.
Petitioners,

T h e  B oard oe E ducation  oe t h e  C it y  oe 
K n o x v il l e , T e n n e s s e e , e t a l.

ON W RIT OP CERTIORARI TO TH E U N ITED  STA TES 
COURT OF A PPEA LS FOR TH E SIX T H  CIRCUIT

PETITION ERS’ BR IEF

Opinions Below

1. Goss case. The memorandum opinion of the United 
States District Court for the Eastern District of Tennessee 
(R. 119) is reported at 186 F. Supp. 559. The opinion of 
the United States Court of Appeals for the Sixth Circuit 
(R. 157) is reported in 301 F. 2d 164 (6th Cir. 1962).

2. Maxwell case. The first Findings of Fact, Conclu­
sions of Law and Judgment of the United States District 
■ Court for the Middle District of Tennessee (R. 228) is re­
ported at 203 F. Supp. 768. The second Findings of Fact, 
Conclusions of Law and Judgment of that court (R. 269) is 
unreported. The opinion of the United States Court of Ap-



2

peals for the Sixth Circuit (R. 282) is reported in 301 F. 2d 
828 (6th Cir. 1962).

Jurisdiction

The judgment of the Court of Appeals in the Goss case 
was entered on April 3, 1962 (R. 156). The judgment of 
the Court of Appeals in the Maxwell case was entered on 
April 4, 1962 (R. 281). The petition for certiorari was filed 
June 29, 1962, and was granted October 8, 1962, limited 
to Question 1 presented by the petition. The jurisdiction of 
this Court is invoked under 28 U. S. C. § 1254(1).

Question Presented

Whether petitioners, Negro school children seeking de­
segregation of the public school systems of Knoxville, Ten­
nessee (Goss case), and Davidson County, Tennessee 
(.Maxwell case), are deprived of rights under the Four­
teenth Amendment by judicial approval of a provision in 
desegregation plans adopted by their local school boards, 
which expressly recognizes race as a ground for transfer 
between schools in circumstances where such transfers 
operate to preserve the pre-existing racially segregated 
system, and which operate to restrict Negroes living in the 
zones of all-Negro schools to such schools while permit­
ting white children in such areas to transfer to other 
schools solely on the basis of race.

Constitutional Provision Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.



3

Statement

These two cases involve the desegregation of the public 
schools of the City of Knoxville, Tennessee, and of David­
son County, Tennessee, an area adjacent to the City of 
Nashville.

The cases were brought by Negro public school pupils 
and their parents as class actions under Rule 23(a)(3), 
F . R. C. P., against the local school authorities seeking in­
junctive and declaratory relief to obtain desegregation in 
accordance with Brown  v. B oard  o f Education, 347 U. S. 
483; 349 U. S. 294.1 In each case, jurisdiction of the Dis­
trict Court was invoked pursuant to 28 U. S. C., §§ 1331, 
1343, 2201 and 2202, and 42 U. S. C., §§ 1981 and 1983, the 
cases involving alleged denials of rights under the Four­
teenth Amendment. In both cases the school authorities 
acknowledged by their answers that they were continuing 
to operate racially segregated public school systems. After 
directions from the trial courts to present desegregation 
plans (R. 29, 208), both boards adopted plans to desegregate 
one school grade each year over a twelve year period, be­
ginning with the first grade, in 1960 in Knoxville and in 
1961 in Davidson County. (For text of plans see: R. 30, 
214.) While there were differences in wording, the two 
plans were substantially the same. Both contained provi­
sions for rezoning of schools without reference to race, 
and for a system of transfers.

The transfer rule, which is at issue on this petition, pro­
vided that pupils could obtain transfers from the schools 
in their zones of residence to other schools upon request in 
certain cases. The Knoxville plan provided:

1 The Goss case was filed December 11, 1959 in the District Court 
for the Eastern District of Tennessee (R. 5). Maxwell was filed 
September 19, 1960 in the Middle District of Tennessee (R. 165).



4

6. The following will be regarded as some of conditions
to support requests for transfer:

a. When a white student would otherwise be re­
quired to attend a school previously serving col­
ored students only;

b. When a colored student would otherwise be re­
quired to attend a school previously serving white 
students only;

c. When a student would otherwise be required to 
attend a school where the majority of students of 
that school or in his or her grade are of a different 
rate (R. 31-32).

The transfer rule adopted by Davidson County was the 
same except for one or two words not affecting the meaning, 
e.g., in the introductory clause the words “valid conditions 
for requesting transfer” are used instead of “valid condi­
tions to support requests for transfer” as in the Goss case 
(R. 214-215). Both plans also contained similar general 
language that transfers would be granted when “good 
cause” is shown.2

2 The Knoxville Plan provided (E. 3 1 ):
“5. Requests for transfer of students in desegregated grades 

from the school of their Zone to another school will be given 
full consideration and will be granted when made in writing 
by parents or guardians or those acting in the position of 
parents, when good cause therefor is shown and when transfer 
is practicable, consistent with sound school administration.”

The Davidson County Plan provided (R. 214) :
“4. Application for transfer of first grade students, and sub­

sequent grades according to the gradual plan, from the school 
of their zone to another school will be given careful considera­
tion and will be granted when made in writing by parents, 
guardians, or those acting in the position of parents, when 
good cause therefor is shown and when transfer is practicable 
and consistent with sound school administration.”



5

Plaintiffs filed written objections to both plans including 
specific objections to the above-quoted transfer rule (R. 
32-34,. 215-219). The District Courts in both cases held 
hearings to consider the adequacy of the plans at which the 
parties presented evidence.

In the Goss case, the District Court found the plan ac­
ceptable and approved it in all respects, except that it re­
quired the school board to re-study and re-submit a plan 
relating to an all-white vocational school offering technical 
courses not available to Negro students. On plaintiffs’ ap­
peal to the Sixth Circuit in the Goss case, the Court of Ap­
peals modified this judgment “insofar as it approved the 
board’s plan for continued segregation of all grades not 
reached by its grade a year plan,” and remanded, instruct­
ing the District Court “to require the board to promptly 
submit an amended and realistic plan for the acceleration 
of desegregation” (301 F. 2d at 169). Thus, the Court 
sustained one of plaintiffs’ arguments saying the “evidence 
does not indicate that the board is confronted with the type 
of administrative problems contemplated by the Supreme 
Court in the second Brown  decision” (301 F. 2d at 167). 
The court affirmed the approval of the plan as to the other 
features, including the transfer provision, stating that this 
approval was “subject to it being used for proper school 
administrative purposes and not for perpetuation of seg­
regation” (301 F. 2d at 168).

In the Maxwell case the District Court disapproved the 
school board’s twelve year plan and modified it to require 
that the first four grades be desegregated as of January 1, 
1961, with an additional grade to be desegregated each 
September thereafter until all grades were covered. The 
District Court approved the racial transfer provision and 
also refused injunctive relief to several plaintiffs who 
sought admission to white schools nearer their homes as



6

exceptions to the plan in higher grades that were still seg­
regated. On plaintiffs’ appeal involving these last men­
tioned two issues, the Sixth Circuit affirmed the approval 
of the transfer plan and the denial of injunctive relief as 
to three plaintiffs who sought individual admissions.

Evidence and Holdings:

Goss Case

The major part of the testimony in the record relates to 
the issue presented by the request for a twelve year delay 
in desegregation, and since no review of the Sixth Circuit’s 
action on this matter is sought, this factual summary is 
limited to matters bearing on the transfer plan. The evi­
dence touching on the transfer plan consisted of testimony 
by school board members as to its meaning, their under­
standing of its likely effect, and the reasons for the plan. 
There was also testimony by a school administrator as to 
prior transfer procedures, and several affidavits and ex­
hibits were filed by plaintiffs in support of their motion 
for new trial which reflect school board action establishing 
transfer procedures after the trial court’s approval of the 
plan.

The school board president, Dr. Burkhart, testified that 
the provision for transfers based on race was adopted out 
of concern for “the orderly education of our students, both 
white and colored, in an effort to make available to the 
community the best facilities and instructional facilities 
that we can under the least possible circumstance which 
might be harmful” (R. 85) ; that the board thought it 
might be “harmful” to a certain number of white students 
to go to school with Negroes and also “it might be harmful 
to some of the colored students to go with white students



7

if they did not want to” (E. 85). He said the basis for 
this feeling was:

The fact that we are talking about two separate races 
of people, with different physical characteristics, who 
have not in our community been very closely associated 
in many ways, and certainly not in school ways. And 
there would be a sudden throwing together of these 
two races which are not accustomed to that sort of 
thing. Either one of them might suffer from it unless 
we took some steps to try to decrease that amount of 
suffering or that contact which might lead to that in 
case it did occur (E. 86).

The witness stated that he did not necessarily refer to 
physical harm but was more concerned with “mental harm” 
(E. 86). With regard to the expected operation of the 
transfer rule, the school board president testified that he 
did not know the mechanics as to how pupils would be 
notified of their new school zones (E. 91-92). He further 
testified:

Q. I  am asking you do you or does the board antici­
pate that any white students will remain in schools 
which have been previously zoned or used for Negroes 
exclusively! A. We doubt that they will.

Q. As a matter of fact, none have remained in the 
City of Nashville, have they? A. I  don’t know. All 
I  can do to keep up with the City of Knoxville.

Q. So then a Negro student who happens to be in a 
zone where the school for his zone is a school which was 
formerly used by Negroes only, that school will be 
continued to be used for Negroes only and he will re­
main in a segregated school, will he not? A. Yes, sir.

Q. And if he applied for transfer out of his zone to 
a school which had been formerly serving white stu­
dents only, then his application would be denied under



8

this plan, would it not, sir? A. Unless it were based 
on one of the other reasons that we have established 
for transfer. If transferred under one of those, it 
would be granted.

#  ̂ ^

Q. But a white student to transfer out of a Negro 
school, as you have stated, would be entitled to do so, 
to have his application granted as a matter of course 
under paragraph 6, subparagraph “a” or “e” of this 
plan? A. Yes, sir (R. 93-94).

Another board member, Dr. Moffett, acknowledged that 
the transfer provisions “at least give the opportunity” to 
perpetuate segregation insofar as they are availed of by 
the students or parents (R. 108).

Mr. Marable, a school administrator in charge of handling 
transfer requests, stated that under the system used before 
this plan was approved, when parents request transfers he 
investigates the requests and gets the views of the princi­
pals concerned and determines if the family has a “valid 
reason” (R. 115); that the school board “leaves that up 
to me,” {Ib id . ) ; that he did not know what the board’s 
written rules on transfer provided (R. 115-116); that “1 
just know I have handled it so many years on my own, 
and so far I  haven’t stuck my neck out on it” (R. 116); 
“that each case is individual. That has to be handled that 
way. Could not have a rule” (R. 116); that an example of a 
“valid” reason would be where a child’s mother taught at 
a school and wanted the child with her because she had no­
where to leave it and the school had room and the principal 
agreed (R. 116-117); that generally transfers were granted 
for “hardship cases and convenience” (R. 117).

After the trial court approved the plan, the school board 
adopted a resolution providing for administration of the



9

provisions as follows: “All first grade pupils should either 
enroll in the elementary school within their new school zone 
or in the school which they would have previously attended” 
(R. 141).

The District Court opinion did not discuss the transfer 
plan issue in its memorandum opinion, although during the 
trial the court indicated that it regarded itself as bound by 
the Sixth Circuit’s prior approval of an almost identical 
provision in the Nashville, Tennessee school case (R. 94). 
See K elley  v. Board o f Education o f Nashville, 270 F. 2d 
209, 228 (6th Cir. 1959).

The Court of Appeals’ holding with respect to the transfer 
plan in the Goss case was as follows (R. 162):

The transfer feature of the plan comes under sharp 
criticism of the plaintiffs. They claim that the opera­
tion of such a plan will perpetuate segregation. We do 
not think the transfer provision is in and of itself ille­
gal or unconstitutional. I t  is the use and application of 
it that may become a violation of constitutional rights. 
It is in the same category as the pupil assignment laws. 
They are not inherently unconstitutional. Shuttles- 
worth v. Birmingham Board of Education, 162 F. Supp. 
372, D. C. N. D. Ala., affirmed, 358 U. S. 101, 79 S. Ct. 
221, 3 L. Ed. 2d 145. They may serve as an aid to 
proper school administration. A similar transfer plan 
was approved by this Court in Kelley v. Board of Edu­
cation of City of Nashville, 270 F. 2d 209, C. A. 6, cert, 
denied, 361 U. S. 924, 80 S. Ct. 293, 4 L. Ed. 2d 240. 
We adhere to our former ruling with the admonition 
to the board that it cannot use this as a means to per­
petuate segregation. In Boson v. Rippy, supra, the 
court said, 285 F. 2d at p. 46, the transfer feature 
“should be stricken because its provisions recognize 
race as an absolute ground for the transfer of students,



10

and its application might tend to perpetuate racial dis­
crimination.” (Emphasis added.) This transfer pro­
vision functions only on request and rests with the 
students or their parents and not with the board. The 
trial judge retains jurisdiction during the transition 
period and the supervision of this phase of the reor­
ganization may be safely left in his hands (301 F. 2d 
164,168).

Maxwell Case

With regard to the transfer plan, the Superintendent of 
Schools agreed that the effect of the rule is to permit a 
child or his parents ‘To choose segregation outside his zone 
but not to choose integration outside of his zone” (E. 219); 
that the provision was identical to that in the Nashville 
plan {Ib id . ) ; and that as it operated in Nashville and was 
intended to operate in Davidson County, white pupils were 
not actually required to first go to the Negro schools in 
their zones and then seek transfers out, and no Negro pupils 
who did not affirmatively seek a transfer to an integrated 
school were assigned to one (E. 219-220).

Dr. Eugene Weinstein, a professor at Vanderbilt Univer­
sity in Nashville, testified about a survey of the attitudes 
of Negro parents in Nashville who had a choice of whether 
to send their children to desegregated schools. He indi­
cated that the most frequent factor influencing those who 
did not send their children to white schools was an unwill­
ingness to separate several children in a family where they 
had older children not eligible for desegregation under the 
grade a year plan (E. 222-223). He said the experience in 
Nashville indicated “mass paper transfers of Whites back 
into what is historically the White school, of Negroes re­
maining in what is historically the Negro school”, and that 
the transfer provisions tend to keep the system oriented



11

toward a segregated system with, token desegregation (B. 
226).

Six of the plaintiffs in this case reside nearer to all-Negro 
schools than to white schools (B. 230 Finding No. 5).

At a further hearing held Jannary 10, 1961, on plaintiffs’ 
motions following the initial approval of the plan with 
modifications, the evidence indicated that under the new 
zones adopted under the plan, in the first four grades, there 
were 288 white children in the Negro school zones and 405 
Negro children in the zones of the white schools (B. 252). 
The school authorities sent notices to the parents of these 
children asking them to indicate within three days whether 
they requested permission for the children to stay at the 
school presently attended or requested permission for a 
“transfer” to the newly zoned school (B. 247-250). Of 
this group, only fifty-one pupils, all of them Negroes, asked 
to attend the school in the new zones (B. 265).

As previously indicated the District Court approved the 
transfer feature of the plan (B. 242). On appeal the Sixth 
Circuit also approved this provision on the authority of 
its decision in Goss (301 F. 2d at 829) (B. 284).

Argument

This case presents issues of the constitutionality of sub­
stantially identical provisions in desegregation plans 
adopted by two public school boards in response to direc­
tions that they present plans to comply with Brown  v. 
B oard  o f Education, 347 U. S. 483 and 349 II. S. 294. In 
the second Brown  decision the Court directed District 
Courts “to consider the adequacy of any plans” which school 
authorities might propose “to effectuate a transition to a 
racially nondiscriminatory school system” (349 U. S. at 
301). Subsequently, in Cooper v. Aaron, 358 U. S. 1, the



12

Court unanimously reaffirmed Brown, stating that state 
authorities were “duty hound to devote every effort toward 
initiating- desegregation and bring about the elimination 
of racial discrimination in the public school system” (358 
U. S. at 7).

The plans for desegregation in the cases at bar provide 
for gradual transition on a grade-by-grade basis for 
a new system for determining the initial placement of 
pupils. Under the plans, this is to be accomplished by a 
geographic method of placing pupils according to residence 
in desegregated school zones or attendance areas to be de­
termined without reference to race. (See R. 31, ffl[ 3 and 4 
of Knoxville plan and R. 214, Ulf 2 and 3 of Davidson County 
plan.) This plan to change the prior pattern of separate 
overlapping zones for Negroes and whites is, at least, on 
its face, consistent with Brown  which envisioned “revision 
of school district and attendance areas into compact units 
to achieve a system of determining admission to the public 
schools on a nonracial basis” (349 U. S. at 300-301).3 How­
ever, the challenged racial transfer provisions of the plans, 
which become effective at the same time the new zoning 
program goes into effect on a grade-by-grade basis,4

3 Numerous appellate decisions following Brow n  have condemned 
the practice which still lingers in many areas of maintaining 
separate school zones for Negro and white pupils. See, e.g., 
Jon es  v. School B oard  o f City, o f  A lexandria, 278 F . 2d 72, 76 
(4th Cir. 1960) ; Marsh v. County School B oard  o f  R oanoke County, 
Va., 305 F . 2d 94, 96 (4th Cir. 1962) ; Green  v. School B oard o f 
City o f R oanoke, 304 F . 2d 118, 124 (4th Cir. 1962) ; Northcross 
v. Bd. o f E ducation  o f  City o f Memphis, 302 F. 2d 819, 823 
(6th Cir. 1962) ; Bush  v. Orleans Parish School B oard, 308 F . 2d 
491, 498 (5th Cir. 1962) ; W heeler  v. Durham City B oard  o f E d u ­
cation, not yet reported (4th Cir., No. 8643, Oct. 12, 1962); cf. 
Norwood v. Tucker, 287 F . 2d 798 (8th Cir. 1961).

4 The racial transfer provision thus is effective only in the grades 
“desegregated” under the grade-a-year program, and not in grades 
which remain under the old program of compulsory segregation 
by separate racial zones.



13

operate to continue race as a factor in placing pupils in 
schools, albeit on a partially optional basis. The racial 
transfer rule continues a policy of racial discrimination 
in the assignment of pupils to schools and to the extent 
that it is used, necessarily works to preserve the racially 
segregated pattern of schools previously created by state 
law.5

The racial transfer rule (R. 31-32, 214-215) provides 
that pupils be permitted upon written request to secure 
transfers from the schools which they would be required 
to attend under the nonracial zoning plan to other schools. 
The eligibility of a student to obtain such a transfer is cast 
in terms of race.

(1) A white student, qua white student, can transfer 
from “a school previously serving colored students 
only” ;

(2) a colored student, qua colored student, can transfer 
from “a school previously serving white students 
only” ;

(3) any student can transfer from a school “where the 
majority of students of that school or in his or her 
grade are of a different race.”

Thus the transfer rule is explicitly racial, providing for 
transfers on the basis of a difference between the race of a 
transfer applicant and either the race of the pupils whom 
a school previously  served, the race of a majority of the

5 School segregation was required in Tennessee by the Consti­
tution of 1870, art. 11, sec. 12 and by Tennessee Code of 1955, 
§§49-3701 to 49-3703. (See text at R. 14-15). The Tennessee 
Supreme Court held the provisions invalid following Brow n  v. 
B oard  o f Education, supra, in B oy  v. Brittain , 297 S. W. 2d 72 
(Tenn. 1956).



14

pupils in the school, or the race of a majority of the students 
in the transfer applicant’s grade level in a given school.''

These transfers on the basis of racial factors operate 
only in one direction, e.g., toward placing students in 
schools that formerly served their own race exclusively 
or schools or classes that have a majority of pupils of their 
own race. This is the source of the transfer provision’s 
invariable tendency to promote racial separation in schools 
and of its racially discriminatory impact upon individual 
pupils. No transfer is granted under this provision which 
will have the effect of increasing desegregation; every 
transfer necessarily will have the effect of increasing the 
size of the majority race group in the schools to and from 
which pupils are transferred.

The discrimination effected by the provision is equally 
plain. Under the plan a white child living in the zone of a 
“Negro school” (i.e., a formerly all-Negro school, or pre­
dominantly Negro school, or a school with a Negro majority 
in the applicant’s grade) is given the option of transferring 
to a “white school.” But the plan makes no provision for 
a Negro child living in the same zone to transfer out to a 
white school; he must remain in the Negro school. It is 
a very evident and obvious violation of equal protection to 
deny a choice to one pupil and grant it to another student 
similarly situated except for race.

Proponents of the racial transfer rule point to the fact 
that the plan effects a correlative disparity in treatment 
based on race in white school zones (where Negro pupils 
can transfer out, but white pupils cannot), in an attempt to 
justify the discriminatory denial of transfers to Negroes 6

6 It  should be realized that the concept of pupils being initially  
assigned  on a nonracial basis and then transferred  on a racial basis 
is largely fictitious. In  practice, pupils simply choose a school on 
the basis of race before going to any school (R. 141, 219-220).



15

living in Negro school areas. It is argued that equal pro­
tection is afforded by the plan since some whites are also 
denied transfers because of their race, and thus there are 
reciprocal discriminations based on race. Actually, this 
symmetrical inequality of treatment based on race is 
familiarly characteristic of racial segregation rules.7

Of more relevance is the fact that the racial discrimina­
tions in both the Negro and white zones operate to limit 
desegregation rather than to advance it. Neither a Negro 
nor a white child is granted a racial transfer to extend 
desegregation, but either child can obtain one if it will 
operate to decrease or prevent desegregation.

But, the theory that the correlative discriminations 
against Negroes and whites in some way “balance” each 
other does more than merely defy the homily that “two 
wrongs do not make a right.” More fundamentally, it 
ignores the important constitutional principle that Four­
teenth Amendment rights are personal rights.8 This Court

7 After all, a bus segregation law forbids whites from sitting 
with Negroes or in the back of a bus, just as it forbids Negroes 
from sitting with whites in the front. But cf. Brow der  v. Gayle, 
142 F . Supp. 707 (M. D. Ala. 1956), aff’d 352 U. S. 903.

8 Paradoxically, defenders of school segregation have frequently 
taken the opposite tack and argued that the personal nature of 
Negro pupil’s rights plus certain statutory administrative rem­
edies limited the relief that a court could grant in school de­
segregation eases to ruling on the admissions of individual pupils 
while leaving generally applicable racial assignment policies be­
yond the reach of the courts. I t  is submitted that these arguments 
have been properly rejected since Negro children’s right to edu­
cation in a nonsegregated school system can be protected only by 
removing racially discriminatory rules which apply to all mem­
bers of the racial group segregated by state authorities. See, for 
example, Brunson  v. B oard  o f Trustees o f School District No. 1 
o f Clarendon County, S. C., 4th Cir., No. 8727, December 7, 1962 
(reversing an order dismissing as to all plaintiffs but the first 
one named in the complaint) ; W heeler v. Durham, City Board  
o f Education, 4th Cir. No. 8643, decided October 12, 1962 (re­



16

emphasized this in rejecting an argument that a racial re­
strictive covenant on land enforced against Negroes was 
valid since state courts would enforce similar covenants 
against white occupancy, in Shelley  v. K raem er, 334 U. 8. 
1, 22 :

But there are more fundamental considerations. The 
rights created by the first section of the Fourteenth 
Amendment are, by its terms, guaranteed to the indi­
vidual. The rights established are personal rights. 
[Footnote citing McCabe v. Atchison, T. & S. F . R. Co., 
235 U. S. 151, 151; Missouri ex rel. Gaines v. Canada, 
305 U. S. 337; Oyama v. California, 332 U. S. 633.] It 
is, therefore, no answer to these petitioners to say that 
the courts may also be induced to deny white persons 
rights of ownership and occupancy on grounds of race 
or color. Equal protection of the laws is not achieved 
through indiscriminate imposition of inequalities.

See also, Brown  v. B oard  o f Education, 349 U. S. 294, 300; 
Sweatt v. Painter, 339 U. S. 629, 635; Sipuel v. Board o f 
Regents, 332 U. S. 631, 633, treating the rights involved 
here as personal.

The appellate decisions which have dealt directly with 
the issue presented here are Boson  v. Rippy, 285 F. 2d 43, 
47 (5th Cir. 1960) and Dillard v. School Board o f City o f 
Charlottesville, Va., not yet reported (4th Cir., No. 8638, 
decided Sept. 17, 1962), which held the racial transfer plan

versing a trial court which had denied all relief on the ground 
that plaintiffs “simply want nothing more or less than a general 
order of desegregation”) ; Jackson  v. School B oard  o f City o f 
Lynchburg, 201 F . Supp. 620, 625-629 (W. D. Ya. 1962) (re­
jecting such an argument), rev’d in part on other grounds, not 
yet reported (4th Cir., No. 8722, Sept. 28, 1962). See also Green 
v. School B oard  o f  City o f Boanoke, Ya., 304 F. 2d 118, 124 
(4th Cir. 1962).



17

invalid, and the three decisions of the Sixth Circuit which 
upheld the transfer system, e.g., K elley  v. Board o f Educa­
tion, 270 F. 2d 209, 228 (6th Cir. 1959), and the two cases 
now being reviewed, Goss v. B oard  o f Education, 301 F. 2d 
164, 168 (6th Cir. 1962), and Maxwell v. County Board  
o f Education, 301 F. 2d 828, 829 (6th Cir. 1962).9

The decision in Boson  v. Rippy, supra, emphasized that 
the plan embodied racial classifications for transfer which 
the court deemed “hardly less unconstitutional than such 
classification for purposes of original assignment to a 
public school” (285 F. 2d 48). In the Dillard case, supra, 
the majority held the racial transfer device invalid stat­
ing that “the purpose and effect of the arrangement is 
to retard integration and retain the segregation of the 
races” and that this “can hardly be denied.” The Court 
ordered 17 Negro pupils admitted to a white school outside 
their zone of residence since white pupils in the zone were 
granted such transfers.

In K elley  v. Board o f Education, 270 F. 2d 209, 228 (6th 
Cir. 1959), the Sixth Circuit upheld the racial transfer 
provision as it did in the cases at bar. The Court in K elley  
held that it was permissible to allow a parent to “voluntarily 
choose a school where only one race attends” (270 F. 2d at 
229), but did not discuss the fact that the option to trans­
fer was conferred and denied on the basis of race or the

9 Among District Court opinions dealing with the issue are 
M app v. B oard o f  Education  o f  City o f  Chattanooga, Tenn., 203 
F . Supp. 843, 853 (B . D. Tenn. 1962), appeal pending (transfer 
plan held invalid on authority of Boson  v. R ippy, su pra ; the court 
declined to follow K elley  v. B oard  o f E ducation  stating that the 
primary purpose of the transfer rule was to prevent or delay 
desegregation) ; Jackson  v. School B oard  o f the City o f Lynch­
burg, Va., 203 F. Supp. 701, 704-706 (W. D. Ya. 1962), appeal 
pending (transfer rule held valid) ; Thompson  v. County School 
B oard  o f Arlington County, 204 F. Supp. 620, 625-626 (B . D. Ya. 
1962), appeal pending (transfer plan held valid; injunction dis­
solved).



18

asserted tendency of the rule to preserve segregation. The 
Court remanded leaving open to plaintiffs only the right 
to show that there were “impediments to the exercise of a 
free choice” (270 F. 2d at 230). The K elley  decision relied 
primarily upon Briggs v. Elliott, 132 F. Supp. 776 (E. D. 
S. C. 1955), which is discussed in detail in the footnote 
below.10

In the Goss opinion (301 F. 2d at 168; R. 162-163), the 
Sixth Circuit adhered to the result reached in K elley, supra, 
but attempted to qualify its approval of the plan by stating 
that while it was “not inherently unconstitutional” it might 
be unconstitutional as applied and that it was approved 
“subject to it being used for proper school administration 
purposes and not for the perpetuation of segregation” (301 
F. 2d at 168; R. 163). The Court in Goss also attempted to 
distinguish Boson  v. Rippy, supra, by mentioning that the 
transfer rule functioned only upon the request of students 
or parents and not the school board, and that supervision 
might safely be left in the hands of the trial judge who 
retained jurisdiction. Petitioners submit that there is no 
distinction at all since both factors obtained in Boson  v. 
Rippy  as well.

10Briggs v. E lliott, 132 F . Supp. 776 (E . D. S. C. 1955), was 
an opinion rendered by a three-judge court that considered this 
case (which was one of those consolidated with Brown  v. B oard  
o f  Education, supra), on remand following this Court’s decision 
in May 1955. The opinion was announced from the bench at the 
beginning of the hearing as the form of an order to be entered 
in accord with this Court’s mandate. No issue relating to any 
specific proposal or plan for desegregation was before the Court. 
The Briggs opinion attempts to state what this Court did not 
decide in Brown, and stressed that court’s view as to the legality 
of “voluntary segregation,” though in general terms and without 
any attempt to define what would constitute “voluntary segrega­
tion.” Certainly, nothing in Briggs could undercut this Court’s 
unanimous declaration in Cooper v. Aaron, 358 U. S. 1, 7, that 
school officials are “duty bound to devote every effort toward 
initiating desegregation.”



19

Beyond this, the court’s seeming qualification of its ap­
proval of the plan is illusory since it did not indicate under 
what conditions it would ever consider racial transfers im­
proper. Nor is it evident how the trial court’s retention of 
jurisdiction is thought to afford any safeguard since no 
standards for judging the application of the plan are pro­
vided. Moreover, there is no hint in the record that the 
transfer provision was ever considered by the Court of the 
parties as a temporary transitional device. Indeed, if it 
had been so proffered at trial, the Court of Appeals, as a 
matter of consistency, should have rejected it as inadequate 
on the same ground the grade-a-year feature was rejected, 
i.e., that the defendants had not sustained their burden of 
establishing that the plan was consistent with good faith 
compliance at the earliest practicable date by evidence of 
legitimate obstacles to desegregation as contemplated by 
Brown  v. B oard  o f Education, 349 U. S. 294, 300-301 (301 
F. 2d at 166-167; R. 158-162).

There are, of course, further compelling reasons why the 
racial transfer is inappropriate even as an interim device. 
I t  does not suppress racial discriminations or “preclude 
their revival” (Cf. United States v. Crescent Amusement 
Co., 323 U. 8. 173, 188 (1944)); rather, it continues racial 
discrimination in a slightly different form. It  bears no 
rational relationship to solving any school administrative 
problem relevant to the proper granting of delay in desegre­
gation. Indeed, it is more likely to aggravate administra­
tive problems by disturbing the efficacy of school zones 
in properly distributing pupils among schools in relation to 
capacity. Certainly it encourages, and, indeed, renders more 
plausible, an effort to manipulate school zone lines on a 
racial basis. This is true since in a given school zone estab­
lished on the basis of student population and school capac­
ity, if sufficient numbers of pupils of a minority race are



20

transferred out, the authorities will be justified in expand­
ing the school zone to include more members of the ma­
jority race (who cannot transfer out) in order to fully 
utilize the available space in the school. That this is a real 
and not a highly suppositious possibility is amply demon­
strated by the New Rochelle, New York school system where 
this sequence of events occurred. See Taylor  v. B oard  o f 
Education o f the City o f New Rochelle, 191 F. Supp. 181, 
184-185 (S. D. N. Y. 1961), appeal dismissed 288 F. 2d 600 
(2nd Cir. 1961); 195 F. Supp. 231 (S. D. N. Y. 1961), aff’d 
294 F . 2d 36 (2nd Cir. 1961), cert, den., 368 U. S. 940.

Indeed, in the Taylor case, supra, the Court went beyond 
condemning a practice like that here. It  held that where 
school officials had once permitted white children to trans­
fer out of a Negro school zone but abandoned this practice 
in 1949, and had manipulated school zone lines on a racial 
basis, the school board was still under a duty to afford 
Negro pupils in the school zone thus created an opportunity 
to transfer to other schools.

Furthermore, the Sixth Circuit’s comparison of this 
racial transfer rule with pupil assignment laws, e.g., as in 
Shuttlesworth v. Birmingham B oard  o f Education, 162 F. 
Supp. 372 (N. D. Ala. 1958), aff’d on limited grounds, 358 
U. S. 101, and Carson v. W ar lick, 238 F. 2d 724 (4th Cir. 
1956), is not at all apt, for the pupil placement laws con­
spicuously did not maintain race as a factor for determin­
ing transfers. The clearest holdings that racial considera­
tions may not be used in determining either pupil transfers 
or initial placements may be found in various cases involv­
ing improper application of pupil placement laws. See, for 
example, Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961); 
Mannings v. Board o f Public Instruction, 277 F . 2d 370 
(5th Cir. 1960) ; Green v. School Board o f City o f Roanoke, 
304 F. 2d 118 (4th Cir. 1962); Marsh v. School B oard  o f



21

Roanoke County, 305 F. 2d 94 (4th Cir. 1962); W heeler v. 
Durham City B oard  o f Education, not yet reported (4th 
Cir., No. 8643, Oct. 12, 1962).

The rise of racial factors to determine school assignments 
has not and cannot be justified as reasonably related to any 
legitimate governmental objectives. The classification of 
school buildings on the basis of the race of the pupils for­
merly occupying them is truly bizarre. Professor Charles 
Black has observed that: “A small proportion of Negro 
‘blood’ puts one in the inferior race for segregation pur­
poses ; this is the way in which one deals with a taint, such 
as a carcinogene in cranberries.” 11 By the racial transfer 
rule the “taint” has been transferred to buildings, render­
ing even a form erly  all Negro school so unfit for white chil­
dren as to justify the special provision. This serves no 
legitimate state purpose.

The racial majority rule is similarly unrelated to any 
proper governmental objective. It  is passionately defended 
by some as the means of protecting a sole tiny child from 
disastrous imaginary personal consequences upon being 
thrust unwilling, as the lone member of his race, into a 
hostile class, when actually the provision permits transfers 
by pupils in any school or class where there is not a provi­
dential exact mathematical equality between the number of 
pupils of each race. The school authorities have argued 
that the provision is necessary to protect pupils in a small 
minority from maladjustments or emotional harm upon 
being placed in a hostile environment. No such blanket 
racial rule as this is needed to provide transfers for truly 
maladjusted children, if transfers are indicated, and the 
school authorities have an inherent and unchallenged power 
to grant transfers based on individual hardships and other

11 Black, “The Lawfulness of the Segregation Decisions,” 69 
Yale L. J .  421, 426 (1960).



22

educationally acceptable standards unrelated to preserva­
tion of the segregation system.

This Court held in Bolling  v. Sharpe, 347 U. S. 497, that 
“Classifications based solely upon race must be scrutinized 
with particular care, since they are contrary to our tradi­
tions and hence constitutionally suspect.” The Court went 
on to find segregation in public education to be “not reason­
ably related to any proper governmental objective” and a 
deprivation of liberty in violation of due process. Plain­
tiffs respectfully submit that the racial classifications made 
by the school authorities in this case are equally unconsti­
tutional and that the defendants should be required to in­
stitute a truly nonracial system of determining the place­
ment and admission of pupils in schools.

CONCLUSION

For the foregoing reasons, it is submitted that the 
judgments of the court below should be reversed.

Respectfully submitted,

J a ck  Gr e e n b e r g

C o n sta n ce  B a k er  M o tley

J a m es  M. N a b r it , I I I  
10 Columbus Circle 
New York 19, New York

C arl A. C owan 
2212 Vine Avenue, S. E. 
Knoxville, Tennessee

Z. A lex a n d er  L ooby

A von N. W il l ia m s  
327 Charlotte Avenue 
Nashville 3, Tennessee

Attorneys fo r  Petitioners



3 8