Calhoun v. Latimer Petition for Rehearing

    United States (tort nf Appeals
F oe th e  F if t h  Ciechit 

No. 20,273

I n  the

V ivian  C alhotjn, et al., Infants by F eed Calh o u n , 
their father and next friend, et al.,

Appellants,

A . C. L atim er , et al.,
Appellees.

PETITION FOR REHEARING

Constance B aker M otley 
J ack  Greenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N. E. 
Atlanta, Georgia

D onald L. H ollowell
Cannolene Building (Annex) 
859% Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Appellants
N orman A makeb 
A. T. W alden

Of Counsel



I n the

ituitTii States (to rt ni Appals
F or th e  F if t h  Circuit 

No, 20,273

V ivian  Calh o u n , et al, Infants b y  F red Calh o u n , 
their father and next friend, et al.,

— v .

Appellants,

A. C. L atim er , et al.,
Appellees.

PETITION FOR REHEARING

To: The Honorable Richard T. Rives and The Honorable 
Griffin B. Bell, Judges, United States Court of Ap­
peals, Fifth Circuit, and The Honorable David T. 
Lewis, Judge, United States Court of Appeals, Tenth 
Circuit, sitting by designation as a Judge of the 
United States Court of Appeals, Fifth Circuit.

Appellants, by their undersigned attorneys, petition this 
Court for a rehearing of their appeal in this case before 
the Court en banc as permitted by Rule 25(a) of the Rules 
of this Court. As reasons therefor appellants show the 
following:

1. The instant appeal involves the important question of 
public school desegregation in the City of Atlanta, Georgia 
and was taken to this Court from the denial by the District 
Court of a motion for further relief which sought, in es­
sence, to decrease from a period of 12 years to 7 years the 
period of transition from segregated to desegregated



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schools. The motion further sought to require the reorgan­
ization of the dual school system into a unitary non- 
racial school system and, as the basis for assignment of 
students to school, a single nonracial school attendance 
area system in lieu of the pupil assignment plan presently 
in effect. Further relief was also sought with respect to 
assignment of professional school personnel on a nonracial 
basis.

2. The appeal was argued on May 1, 1963 before a three- 
judge panel of this Court consisting of Judge Richard T. 
Rives, Judge Griffin B. Bell and Judge David T. Lewis 
of the Tenth Circuit sitting by designation. On June 17, 
1963, the majority of the panel, consisting of Judges Lewis 
and Bell, affirmed the District Court’s denial of the motion 
for further relief. Judge Rives dissented.

3. The decision of the majority is contrary to prior 
recent decisions of this Court in similar school desegrega­
tion cases. Augustus v. Board of Public Instruction, 306 
F. 2d 862; Bush v. Orleans Parish School Board, 308 F. 2d 
491.

4. The majority opinion also fails to discuss the legal 
significance of undisputed facts in the record with respect 
to the presently existing dual school zone lines based on race 
for each school in the City of Atlanta.

5. The majority opinion also fails to give weight to the 
undisputed fact that Negro children seeking assignment 
to white high schools in grades desegregated, pursuant to 
the present desegregation timetable, are subject to a “ per­
sonality interview” not required of white students and are 
subject to an analysis of their scores made on certain 
scholastic tests, given to white and Negro children alike,



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in considering the eligibility of Negro children to transfer 
from Negro schools to white schools.

6. This is the first case decided by this Circuit since the
Supreme Court in Watson v. City of Memphis,------U. S.
------ , No. 424, Oct. Term 1962 (decided May 27, 1963) and
in Goss, et al. v. Board of Education of the City of Knox­
ville, ------ U. S .------- , No. 217, Oct. 23, 1962 (decided June
3, 1963) admonished that the passage of time since its 
decision in the Brown case in 1954 required a revision of 
the standards of deliberate speed now applicable to the 
period of transition from a segregated to a desegregated 
school system.

7. The majority opinion also does not apply the criterion 
established in the Goss case, supra, with respect to deter­
mining whether a school desegregation plan or any feature 
thereof tends to retard or prolong desegregation or to per­
petuate racial segregation in the public school system.

8. Neither the Watson case, supra, nor the Goss case, 
supra, was argued or briefed when this appeal was heard 
on May 1, 1963, since both of these cases were decided sub­
sequent thereto.

9. The majority opinion does not secure or maintain 
uniformity or continuity in the decisions of this Court in 
similar cases.

10. In the light of the Watson decision the majority 
opinion in this case is now of major import and should be 
reheard by the court en banc.



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W herefore, for all of the foregoing reasons, appellants 
respectfully pray that the entire Court rehear this appeal.

Respectfully submitted,

Constance B aker M otley 
J ack  Greenberg

10 Columbus Circle 
New York 19, New York

E. E. M oore 
Suite 201
175 Auburn Avenue, N. E. 
Atlanta, Georgia

D onald L. H ollowell
Cannolene Building (Annex) 
859% Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Appellants

N orman A maker 
A. T. W alden 

Of Counsel



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Certificate of Counsel

The undersigned attorney for appellants certifies to this 
Court that the foregoing Petition for Rehearing is pre­
sented in good faith and not for the purposes of delay.

>?/ A

Certificate of Service

T his  is to certify that on the day of July 1963
I mailed to A. C. Latimer, Esq., Healey Building, Atlanta, 
Georgia and Newell Edenfield, Esq., 715 Citizens and South­
ern National Bank Building, Atlanta, Georgia, Attorneys 
for Appellees, a true and correct copy of the foregoing Peti­
tion for Rehearing in this case by mailing a true copy of 
same to each of them at the addresses shown herein via 
Special Delivery Airmail.

Attorney for Appellants