Monroe v. City of Jackson Board of Commissioners Brief for Plaintiffs-Appellants

    I n  th e

lmte& States at Amalfi
S ix t h  C iecu it

No. 17,118

B renda K. M onroe, et al.,

Plaintiff s-Appellants,

B oard of C ommissioners of t h e  C it y  of J ackson , 
T ennessee , et al.,

Defendants-Appellees.

on appeal  from  t h e  district court of th e  united  states

FOR THE WESTERN DISTRICT OF TENNESSEE, EASTERN DIVISION

BRIEF FOR PLAINTIFFS-APPELLANTS

J ack  Greenberg 
J am es M. N abrit , III 
M ich ael  M eltsner  
Gerald A . S m ith

10 Columbus Circle
New York, New York 10019

A von  N. W illiam s , J r .
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Plaintiffs-Appellants



1

Statement of Questions Involved

(1) Whether a school board under a duty to disestablish 
its segregated school system, may, consistently with 
Brown v. Board of Education, 347 U.S. 483, 349 U.S. 
294 and subsequent decisions of the United States 
Supreme Court, draw junior high school zone lines 
and adopt transfer policies so as to foster and 
maintain a segregated school system!

The District Court answered this question “Yes” and 
appellants contend the answer should have been “ No.”

(2) Whether appellants’ constitutional right to non-racial 
allocation of faculties is met by a court order placing 
the burden of achieving faculty desegregation on 
teachers, by the adoption of a teacher freedom of 
choice plan, where the school board has historically 
adhered to policies and practices which promote 
racial segregation.

The District Court answered this question “Yes” and 
appellants contend the answer should have been “ No.”

(3) Whether a school board required by decisions of the 
United States Supreme Court to eliminate racial 
restrictions, distinctions and discriminatory prac­
tices may give support to “ private” groups which 
discriminate against Negroes in sponsoring activities 
during school hours involving school facilities, pupils, 
and personnel.

The District Court answered this question “Yes” and 
appellants contend the answer should have been “ No.”





I N D E X

BRIEF
PAGE

Statement of Questions Involved ..... -............................  i

Statement of Facts ............................................................  1
Prior History ........     2
School System ...........................    4
School Desegregation Plan ........    5
Teacher Segregation ................................................... 5
Gerrymandering—Junior High Schools ......   7
Segregation— School Connected Activities ................. 11

A e g u m e n i —

I. The Board in Disestablishing Its Segregated 
School System Has An Affirmative Duty To 
Adopt Zoning and Transfer Policies For 
Junior High Schools Which Will Facilitate The 
Immediate and Meaningful Reform of A State- 
Created Pattern of Segregation .......................  13

II. A “ Freedom of Choice” Faculty Desegregation 
Plan is Tantamount to No Plan At All, and 
Falls Far Short of Vindicating the Right of 
Negro Children to An Education Free From 
Any Consideration of Race as Guaranteed By 
the Fourteenth Amendment to The Constitu­
tion of The United States ......... ........... .............  20

III. School Board Participation In and Support 
For Programs Which Discriminate On the 
Basis of Race Is Prohibited By The Four­
teenth Amendment to The Constitution of The
United States ...................................................... . 26

Relief .....................................................................................  29



IV

T able of Cases

PAGE

Anderson v. Martin, 375 U.S. 399 ..... ............... ..... ...... . 24
Avery v. Wichita Falls Independent School District,

241 F.2d 230 (5th Cir. 1957) ......................................  17

Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960) ...................  17
Bradley v. School Board of Richmond, 382 U.S.

103 ..... ................... ............ ........ .............................. .17,20,22
Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C.

1955) ............................ ............... ............. ......... ..... 16, 17,18
Brown v. Board of Education, 347 U.S. 483 .......1, 2, 27, 28
Brown v. Board of Education, 349 U.S. 294 ____1,14,17, 20
Brown v. County School Board of Frederick County,

Va., 245 F. Supp. 549 (W.D. Va. 1965) ..... ..... .......  21
Burton v. Wilmington Parking Authority, 365 U.S.

715 ......................................................................... .......... 28,29

Calhoun v. Latimer, 377 U.S. 263 .............................. 17, 20
Cooper v. Aaron, 358 U.S. 1 ...........................14,16, 28, 29

Dowell v. School Board of Oklahoma City Public 
Schools, 244 F. Supp. 971 (W.D. Okla. 1965) ______ 26

Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960), cert.
denied, 364 U.S. 933 ............. ................... ............... .....  16

Evans v. Newton,----- - U .S .------ 15 L.ed. 2d 373 ............  28

Franklin v. County School Board of Giles County,
No. 10,214 (4th Cir. April 6, 1966) ......... ............. 21,22

Gilliam v. School Board, Hopewell, Va., 382 U.S. 103 .... 20 
Gomillion v. Lightfoot, 364 U.S. 339 ..............................  15



V

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

Goss v. Board of Education, 373 U.S. 683 ........... 17,18, 20,
23, 28, 29

Hawkins v. North Carolina Dental Society, 355 F.2d 
718 (4th Cir. 1966) ..................................... ....... ........  29

Kelley v. Board of Education of Nashville, 270 F.2d
209 (6th Cir. 1959) ......... ...................................... ..... . 18

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) ...........17, 25
Kier v. County School Board of Augusta County, Va.,

249 F. Supp. 239 (W.D. Va. 1966) ............. ......... 22,26

Louisiana v. United States, 380 U.S. 145 ......................  16

McLaurin v. Oklahoma, 339 U.S. 637 ............. .............  27
Mapp v. Board of Education of City of Chattanooga,

319 F.2d 571 (6th Cir. 1963) .......................... ...........  23
Monroe v. Board of Commissioners of City of Jackson, 

Tennessee, 221 F. Supp. 968 (W.D. Tenn. 1963) ....3, 4, 9 
Monroe v. Madison County Board of Education, 229

F. Supp. 580 (W.D. Tenn. 1963) ........................ .........  2
Monroe v. Board of Commissioners of City of Jackson,

Tennessee, 244 F. Supp. 353 (W.D. Tenn. 1965) .......  2
Muir v. Louisville Park Theatrical Ass’n., 202 F.2d 

275 (6th Cir. 1953) ............................................ .........  28

Northcross v. Board of Education of City of Memphis,
302 F.2d 818 (6th Cir. 1962) ............. ......... .......... . 13

Northcross v. Board of Education of City of Memphis,
333 F.2d 661 (6th Cir. 1964) ............. ...... ...... .......... . 13

PAGE



VI

Price v. Denison Independent School District Board of 
Education, 348 F.2d 1010 (5th Cir. 1965) ________ 25

Rogers v. Paul, 382 U.S. 198 ...... ......... ............ ......... 17, 20

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (5th Cir. 1965) .......................17,25

Taylor v. Board of Education of City School District 
of New Rochelle, 191 F. Supp. 181; 195 F. Supp. 231 
(S.D.N.Y. 1961), aff’d 294 F.2d 36 (2nd Cir. 1961) .... 15

Thompson v. County School Board of Hanover County,
Va., Cir. No. 4274 (E.D. Va., January 27, 1966) .......  22

Watson v. City of Memphis, 373 U.S. 526 ........... ....... 17, 20

PAGE

S tatutes

Civil Rights Act of 1964
Title VI (42 U.S.C.A. §2000d) ...................................  24

Federal Rules of Civil Procedure, Rule 60 .............. 4

O th er  A uthorities

Fiss, “Racial Imbalance in the Public Schools: The 
Constitutional Concepts” , 78 Harv. L. Rev. 564 
(1965) ......................... .......... ............................................ 18

N.E.A., “Report of Task Force Appointed to Study 
the Problem of Displaced School Personnel Related 
to School Desegregation” (December 1965) ............... 21



PAGE

Ozmon, “ The Plight of the Negro Teacher” (Septem­
ber, 1965) ..........................................................................  21

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act 
of 1964, U.S. Department of Health, Education, and 
Welfare, Office of Education (March, 1966) ..-.15,19,24,

25, 26

Southern Education Reporting' Service, “ Statistical 
Summary of School Segregation-Desegregation in 
Southern and Border States” , 15th Revision (De­
cember, 1965) ............................................................ .....  23



APPENDIX

PAGE

Relevant Docket Entries ................. ...... ..................... . la

Motion for Further Relief and to Add Parties, etc.....  3a

Exhibit “K ” Annexed to Foregoing Motion— 
Affidavit of Thomas B. Davis .......................... . 19a

Exhibit “L” Annexed to Foregoing M otion - 
Affidavit of Mrs. Freddie Moore ........................ 21a

Exhibit “M” Annexed to Foregoing Motion— 
Affidavit of Mrs. Carl Brown ......................... . 23a

Exhibit “ N” Annexed to Foregoing Motion— 
Affidavit of Mrs. Annie L. Merriweather .........  25a

Replication of Defendants to “ Motion for Further Re­
lief” ...........    27a

Pre-Trial Order ...............................................   44a

Supplemental Replication to Motion of September 4,
1964 ....................................      46a

Petition .........................      56a

Exhibit A  Annexed to Petition— Map of Jackson, 
Tennessee ................................................   57a

Specification of Objections Filed by Plaintiffs ........... 58a

Additional Motion for Further Relief .......................  61a

v i i i



IX

Replication of Defendant to Additional Motion for 
Further R e lie f.................................................... ...........  67a

Exhibit A Annexed to Foregoing Replication—
The 1965-66 School Calendar ............................  76a

Excerpts From Transcript of Testimony ........ ..........  78a

Memorandum Decision ...........................     286a

Order ..............................................      311a

Notice of Appeal ......... .................... ....... ........................  318a

T e s t i m o n y  :

Plaintiffs’ W itnesses:

Roger W. Bardwell—
Direct ......................................     159a
Cross ....................................      174a
Redirect .....          190a

Albert Porter—
Direct ......... .......... .............. ...................... ....... . 192a
Cross ............................................................197a, 254a
Redirect .................................      261a

Merle G. H erm an-
Direct .........          198a
Cross ..............         214a

Dr. Eugene Weinstein—
Direct ..............        221a
Cross ........         233a
Redirect .............................................................  250a
Recross ................................................................ 250a

PAGE



Defendants’ W itnesses:

C. J. Huckaba—
Direct ...... .................
Cross ..... .......... .........

Mrs. James McLemore—
Direct .................. .....
Cross ..........................

PAGE

78a
96a

270a
272a

E x h i b i t s  :

Plaintiffs’ Exhibits: pao,e

12— School Zone Map .............   104a

12 to 21— School Zone Maps and Docu­
ments ..............................   163a

20— Enrollment Lists ................     194a

26—Enrollment Lists ...........................  219a

Printed
Page

280a

Defendants’ Exhibits-.

1 to 9— Maps ________ ____________  79a

10 to 11—Maps  ............................... . 94a

Omitted.



In t h e

lutfrfc §>tat£0 QInurt of Appeals
S ix t h  C ircu it  

No. 17,118

B renda K. M onroe, et al.,

Plaintiff's-Appellants,

—v.—

B oard op C ommissioners op th e  C it y  of J ackson , 
T ennessee , et al.,

Defendants-Appellees. 

BRIEF FOR PLAINTIFFS-APPELLANTS

Statement of Facts

This is an appeal by Negro appellants from the district 
court’s order denying certain requests contained in their 
Motion for Further Relief (3a-17a), Additional Motion for 
Further Relief (61a-66a) and their Specifications of Ob­
jections to defendants’ plan for unitary non-racial zones 
for junior high schools (58a-60a). Appellants seek the 
aid of this court in bringing about substantial, as opposed 
to token, desegregation in the public schools of Jackson, 
Tennessee in compliance with decisions of the United States 
Supreme Court.

Appellants won some of the relief sought in the lower 
court, but were denied or obtained inadequate relief on



2

several requests including: 1) The court’s refusal to dis­
approve assertedly gerrymandered unified junior high 
school zone lines. Its opinion was that “ [t]he proposed 
junior high school zones proposed by defendants do not 
amount to unconstitutional gerrymandering” (315a). 2) A p­
pellants’ application for an order requiring faculty deseg­
regation was also denied, but the court ordered the Board 
to permit teachers to apply to teach in schools where pupils 
are all or predominantly of another race (315a-316a). 
3) Discrimination in curricula and extra-curricula activities 
was enjoined but the court refused to enjoin the Board 
from giving support to private groups which sponsor 
activities involving school facilities, pupils, and personnel, 
and discriminate in these activities against Negro pupils 
and personnel (316a). The district court’s opinion is re­
ported in 244 F. Supp. 353 (W.D. Tenn. 1965).

Prior History

The original complaint1 in this action was filed by Negro 
children and their parents on January 8, 1963, almost 
nine years after the Supreme Court’s decision in Brown 
v. Board of Education, 347 U.S. 483. The gravamen of 
their complaint was that the City Board of Commissioners 
were operating a compulsory segregated school system in 
Jackson, Tennessee in violation of rights secured to plain­
tiffs and members of their class by the due process and 
equal protection clauses of the Fourteenth Amendment 
to the Constitution of the United States. Plaintiffs sought 
a declaratory judgment and preliminary and permanent

1 Monroe v. Madison County Board of Education, 229 F. Supp. 580 
(W.D. Tenn. 1963), was combined with this case in the original com­
plaint, but was severed for trial. An appeal in the Madison County case 
(No. 17,119) is pending in this court.



3

injunctive relief. The general relief sought was an in­
junction against the continued operation of a compulsory 
bi-racial school system or alternatively an order requiring 
defendants to present a plan for the reorganization of their 
compulsory bi-racial school system into a unitary non- 
racial system.

January 19, 1963 the District Court found that the 
Jackson School Board had denied the Negro plaintiffs 
admission to white schools to which they had applied on 
the basis of race and issued its preliminary injunction 
against the Board requiring admission of the individual 
named plaintiffs to schools to which they had applied.

February 26, 1963, appellee filed its answer, denying 
that it had operated compulsory racially segregated schools 
in that beginning with the 1961-62 school year it began 
accepting individual applications for transfer and enroll­
ment of Negro children in white schools pursuant to pro­
visions of Tennessee’s Pupil Placement Act and since that 
time seven Negro children had been admitted to white 
schools in the city school system. The material allegations 
of the original complaint were, otherwise, substantially 
admitted.

Appellants’ Motion for Summary Judgment was granted 
on June 19, 1963, and the Board was ordered to file a com­
plete plan for desegregation and elimination of segrega­
tion in the city school system. After defendant filed its 
plan and plaintiffs filed specification of objections, the 
cause was heard July 26 and 27, 1963. In an opinion 
reported in 221 F. Supp. 968, the court approved a plan 
requiring desegregation of the Jackson public schools within 
four years, encompassing the first three grades in the 
school year 1963-64, the next three grades in 1964-65 and 
the two successive grades each year thereafter until com­



4

pleted. The Board was authorized to use its reasoned 
discretion in adopting admission and transfer policies as 
long as they had no racial basis or purpose to delay deseg­
regation. Pupils living in established attendance zones 
were given a prior right to attend schools in those zones 
over all others not residing therein. Pupils not living within 
the limits of the City of Jackson could be admitted or 
assigned to schools in accordance with the discretion of 
the Board of Commissioners but the Board was not to 
discriminate as to race in admitting or assigning pupils 
to grades desegregated under the plan.

After the court’s order desegregating grades 1-3 for the 
first year, school officials resegregated Negro pupils grad­
uating from desegregated elementary and junior high 
schools who had theretofore won admission to formerly 
all-white schools as a result of the the court’s preliminary 
injunction of January 19, 1963 and voluntary action of the 
Board. After a hearing on plaintiffs’ motion for “ Appro­
priate Relief” under Rule 60 of the Federal Rules of Civil 
Procedure, Judge Brown entered an order protecting the 
rights of Negro students above grade 3 and enrolled in 
theretofore all-white schools, 221 F. Supp. 968, 973 (ad­
dendum).

School System

As of the 1964-65 school year there were 7,804 pupils in 
the Jackson School System. 3,194 (41%) are Negroes 
(280a-285a). Of these, only 120 attend formerly all-white 
schools, 2 above the 6th grade level (283a-285a). No white 
students are enrolled in schools traditionally categorized 
as Negro schools (280a-285a).

The entire system consists of 13 schools; 8 elementary, 
3 junior high and 2 high schools. Eight of the 13 (5



5

elementary, 2 junior high and 1 high school) were hereto­
fore attended by whites only. 5 schools (3 elementary, 
1 junior high and 1 high school were formerly and are 
now attended by Negro pupils only (280a-285a).

School Desegregation Plan

As of this appeal, the defendants are operating under 
a plan which requires desegregation as follows: first
through third grades in the school year 1963-64, fourth 
through sixth grade in the school year 1964-65, seventh 
through ninth grades in the school year 1965-1966 and tenth 
through twelfth grades in the school year 1966-67,2 when 
the school system is to be totally desegregated (315a). 
The Board is required to allow Negroes and whites to use 
racial majority transfers to obtain assignments out of 
their unitary zones if it continues to allow Negroes and 
whites to use racial minority transfers to obtain school 
assignments out of their unitary zone (313a). Each student, 
however, is required each year to register in the school 
of his unitary zone and thereafter apply for a transfer. 
Direct registration in a school outside the students’ unitary 
zone is not permitted (314a). Teacher desegregation is to 
proceed under a “ freedom of choice” plan. This is effective 
for substitute teachers during the 1965-66 school year and 
all teachers beginning with the 1966-67 school year (315a- 
316a).

Teacher Segregation

The Board of Commissioners has made no effort to as­
sign teachers on an objective basis without regard to race 
or color. In fact, they assert that “ integration of faculty 
is not related to, nor necessary for the achievement of

Plaintiffs won acceleration in tlie lower court updating desegregation 
in all grades by 1 year. See original time schedule pp. 4-5, supra.



6

elimination of compulsory segregation within the City 
Schools of the City of Jackson (53a). They contend that 
under the Constitution of the United States federal courts 
are powerless to order assignment of school personnel 
(54a). Defendants claimed that the destruction of the 
entire city school was seeded in plaintiffs’ request for 
faculty integration (42a). This fear wTas said by plaintiffs’ 
expert to be merely conjectural. His testimony revealed 
at least three instances where faculty desegregation is 
planned (Nashville) or has actually occurred (Wilson 
County, Tennessee, Putnam County, Tennessee) and there 
has been no mass exodus of white faculty personnel (247a- 
248a). The student withdrawal feared by defendants (42a) 
was recognized by Judge Brown as frivolous: “as you 
know under the law of Tennessee, a child has to go to 
school until he is I believe, sixteen years of age” (247a).

The testimony of Dr. Eugene Weinstein, plaintiffs’ ex­
pert, indicates that continued faculty segregation causes 
Negro schools to be stigmatized as “Negro” and newly 
desegregated white schools, with all-white faculties to be 
regarded as white and the existence of the stigma impedes 
the ordinary rate of desegregation in the community 
(223a). This is especially true when a pattern of faculty 
segregation is considered along with the Board’s free 
transfer policy (231a). “Faculty segregation tends to make 
additional impetus to transfer out of a Negro school, be­
cause it is obvious that it is Negro in all of its educational 
environs and it tends to stigmatize a school as a Negro 
school” (232a).

Testimony further reveals that faculty segregation tends 
to deprive Negro children “of the opportunity of having 
experience with white middle class values, with white people 
presumably in a supportive relationship to them in the edu-



7

cational system. It tends to remove from them the oppor­
tunity to have experience with another sub-culture that 
they have to cope with later in life, whose values and 
attitudes will be very important in the place they make 
for themselves in subsequent life” (223a). Faculty segrega­
tion also affects white pupils, they are deprived “ of the 
opportunity to have experience with Negroes in a pro­
fessional and authoritative role . . . confirming . . . existing 
impressions in stereotypes the white students have” 
(224a), and where faculties are composed of members of 
a single racial group, white and Negro pupils will wonder 
why only white teachers are allowed to teach whites and 
vice-versa (239a). Based on the above principles Dr. Wein­
stein concluded that faculties as well as students should 
be desegregated in order to provide a completely deseg­
regated education (224a).

Gerrym andering— ju n ior  High Schools

The City of Jackson has three junior high schools. 
Tigrett and Jackson Junior High are heretofore all-white 
schools. Merry Junior High is an all-Negro school. Tigrett 
is located in West Jackson, Merry in Central Jackson and 
Jackson Junior High in the Eastern portion of the City. 
These schools are divided by two irregularly drawn North- 
South school zone lines which tend to follow racial neigh­
borhood patterns.3 Observation of these zone lines, to­
gether with racial neighborhood patterns “reveals that the 
boundary zones for junior high attendance have been drawn 
with the goal in mind to preserve racially segregated

3 See “ Exhibits Depicting the Gerrymandering of School Zones in Jack- 
son, Tennessee Schools,” a blue spiral bound pamphlet prepared by 
plaintiffs and containing seven exhibits using overlay maps and verbal 
descriptions and marked as Exhibit 12. Appellants will refer hereafter 
to Exhibits I  through Y II therein by their Trial Exhibits numbers, 13 
through 19. Reference here is made to Exhibit 17.



8

junior high schools to a large degree” (Tr. Ex. 17). There 
is a concentration of Negro pupils in the Southwestern 
portion of the Jackson zone, a smaller concentration of 
Negro pupils in the Southeastern portion of the Tigrett 
zone and some whites reside in the Merry zone. This 
zoning coupled with appellees’ open transfer plan may he 
used to promote complete segregation at the junior high 
school level (Tr. Ex. 18).

The Board did not have completed information before 
it when it drew up the junior high school zones approved 
by the district court:

“ The Court is advised that the Jackson Junior High 
School shown on the map is a new school just being 
completed which will be in use by the time this plan 
is effective. The present Jackson Junior High School 
located at Headrick Avenue may be, or may not be 
continued in service, a question not yet determined. 
The map as presented does not include it but may 
be amended later if the building is continued in ser­
vice” (56a).

The Superintendent of Schools testified that Tigrett 
Junior High, white, has a pupil capacity of 725, an enroll­
ment of 678 (47 under capacity), its pupil-teacher ratio 
is 26-1, new Jackson Junior High, white, has a pupil 
capacity of 650, an enrollment of 401 (249 under capacity), 
its pupil-teacher ratio is 25-1. While these two white 
schools are almost 300 under capacity, all-Negro Merry 
Junior High has an enrollment of 703, exceeding its capacity 
by 3 and a pupil-teacher ratio of over 30-1. The school 
board has taken bids to construct four additional class­
rooms at Merry so as to increase its capacity by 120 (95a). 
Apparently the fact that future enrollment levels in junior 
high schools will tend to remain constant at about 100



9

above present enrollment was not considered in deciding 
to go ahead with the construction (211a).

The Superintendent admitted that it was March, 1965 
before it was decided to go ahead with the construction of 
the Merry addition but refused to answer whether this 
decision was made after it was found that Merry’s enroll­
ment was 3 over its pupil capacity (136a). The Super­
intendent would not say whether a single white student 
is expected to enroll in Merry Junior High (136a-137a).

Regarding schools which have been desegregated under 
the plan, Judge Brown set the following guidelines in 1963; 
“ the Board may adopt any admission or transfer plan as 
may, in its judgment be reasonable and proper, provided 
however, that no admission or transfer will be based upon 
race or have as its purpose the delay of desegregation as 
contemplated by the plan.” Monroe v. Board of Commis­
sioners of City of Jackson, Tennessee, 221 F. Supp. 968, 
971 (W.D. Tenn. 1963). Faced with this order the school 
board allowed 298 white and no Negro pupils from neigh­
boring Madison County to transfer to five formerly all- 
white elementary schools, while requiring eight Negro and 
no white county transferees to enroll in two all-Negro 
elementary schools (208a-209a). Anticipating desegrega­
tion at the junior high level for the 1965-66 school year 
defendants permitted 68 white and no Negro county trans­
ferees to enroll in two formerly all-white junior high 
schools while requiring four Negro and no white county 
transferees to enroll in all-Negro Merry Junior High School 
(208a). This practice obviously reduces the capacity of 
these schools to accommodate Negro junior high pupils 
who live within the City of Jackson.

At trial appellants’ expert witness, Mr. Herman, pro­
posed the use of a feeder system for Jackson’s elementary



10

and junior high schools (200a). He suggested that junior 
high zones should conform to elementary zones so that 
rising sixth grade pupils would go to the junior high 
school that takes pupils from the same school (200a). He 
testified that the feeder system is both efficient and edu­
cationally sound (207a) because it would result in “ an 
integration of effort between the elementary schools and 
the junior high schools where orientation procedures might 
be developed. . . . The principals are able to work together 
in enabling a sufficiently easy transition from the elemen­
tary to junior high school. Also, from a guidance point 
of view, it is well that schools have some association that 
are teacher relationships and administrative relationships 
which should be developed between feeder schools and the 
schools into which the children are being enrolled” (200a).

Specifically appellants’ expert, Mr. Herman, recom­
mended that elementary zones should be clustered around 
junior high schools. Parkview (white, Tr. Ex. 13), Wash- 
ington-Douglas (Negro, Tr. Ex. 13) and Whitehall (white, 
Tr. Ex. 15) Elementary schools were suggested as appro­
priate feeder areas for Jackson Junior High (white, Tr. 
Ex. 17). Highland Park (white, Tr. Ex. 19), West Jackson 
(white, Tr. Ex. 14) and South Jackson (Negro Tr. Ex. 14) 
elementary were suggested as appropriate feeder areas for 
Tigrett Junior High School (white, Tr. Ex. 17). Alexander 
(white) and Lincoln (Negro, Tr. Ex. 15) Elementary 
Schools were suggested appropriate feeder areas for Merry 
Junior High School (207a). The feeder system proposal 
was based on the assumption that some changes were neces­
sary in elementary school zones (206a-209a). The Trial 
Judge, in fact, did require some changes in elementary 
zones (314a).

Air. Herman testified that pupil transportation is not 
a great problem at the junior high level because pupils



11

in this age group are capable of using public transporta­
tion facilities and sufficiently matured to take care of them­
selves on the street (200a-201a). He pointed out that all 
of the schools with the exception of Merry and South 
Jackson had a great deal of flexibility in terms of capacity 
and school capacity would not be a great problem in 
rezoning’ the schools (210a).

The District Court felt that “ the value of the testimony 
of these experts with respect to junior high schools was 
somewhat undercut because they . . . assumed a duty to 
maximize integration . . . [and] . . . that defendants had 
the duty to adopt a ‘feeder’ system whereby certain ele­
mentary schools would send their graduates only to a 
particular junior high school” (297a). Judge Brown after 
concluding “that the Constitution does not require integra­
tion and that it only requires abolition of compulsory 
segregation based on race” (292a), held that there was 
no constitutional requirement that a “ feeder” system be 
adopted (300a).

Segregation— School Connected Activities

Appellants in their Additional Motion for Further Relief 
asked the district for an order “eliminat[ing] all racial 
restrictions, distinctions and discriminatory practices from 
all teacher in-service training' and professional or school- 
related activities sponsored or supported by the City of 
Jackson School System” (61a). A  similar request was 
made regarding “ cultural and/or recreational programs 
conducted under the auspices of and/or with the direct 
or indirect support or cooperation of the City of Jackson 
School System” (61a).

Specifically, appellants complained that white and Negro 
teachers were assigned separate in-service training days



12

(63a, 64a, 65a). Appellees did not deny this practice but 
pleaded affirmatively that “ [t]he teachers themselves be­
long to various teacher professional organizations, a mat­
ter wholly beyond the control of the defendants” (72a). 
Appellee admitted that Negro and white teachers are given 
different holidays to attend their meetings (68a) but denied 
that holidays are paid (72a). The trial court viewed the 
question raised by these circumstances as one of internal 
organizational policy (307a) but did not consider the ques­
tion of whether the Board and hence the state may partic­
ipate in any way in these segregated teacher activities. 
The District Court also held that pupil plaintiffs had no 
standing to raise the issue of segregated in-service training 
for teachers (307a).

Appellants also complained that on February 11, 1965 
segregated concert performances were given at Tigrett 
Junior High School by the Jackson Symphony Orchestra. 
White and Negro pupils in certain grades in the predom­
inantly white city and county schools were all invited, 
but no pupils in similar grades in the all-Negro schools 
were permitted to attend the program (65a). Thus, almost 
all Negroes, but no white pupils, were excluded from the 
concert. Appellee admitted the allegation but replied that 
the concert was sponsored by a private organization and 
the city had no control over their activity (70a-71a). A l­
though the concert performances were given in one of the 
city’s schools, the court below viewed them as an “ outside 
activity” and held that the “ occurrence does not constitute 
unconstitutional discrimination” (306a).



13

A R G U M E N T

I.
The Board in Disestablishing Its Segregated School 

System Has An Affirmative Duty To Adopt Zoning and 
Transfer Policies For Junior High Schools Which Will 
Facilitate The Immediate and Meaningful Reform of A 
State-Created Pattern of Segregation.

Junior high school zoning in Jackson, Tennessee violates 
the basic zoning standards set by this court in Northcross 
v. Board of Education of City of Memphis, 302 F.2d 818, 
823 (6th Cir. 1962);

Minimal requirements for non-racial schools are 
geographic zoning, according to the capacity and facil­
ities of the buildings and admission to a school accord­
ing to residence as a matter of right.

Discrepancies in capacity and enrollment, as well as dif­
ferences in the pupil teacher ratios at Negro and white 
Junior High Schools (95a) make it perfectly clear that 
the City of Jackson is not observing even the minimal 
requirements. Moreover, these discrepancies indicate that 
the board has failed “to demonstrate that the zone lines 
of each school were not drawn with a view to preserve a 
maximum amount of segregation.” Northcross v. Board of 
Education of City of Memphis, 333 F.2d 661, 664 (6th Cir. 
1964).

The Board obviously has an overall purpose to retain 
pupils from the Negro community in Negro Junior High 
schools and to retain pupils from the white community 
in white Junior High schools. If this is not the case, ap­



14

pellants find incomprehensible the fact that the Board 
has committed itself to build additions at the all-Negro, 
Merry Junior High school to accommodate 120 additional 
Negro pupils (95a) while its two white junior high schools 
remain substantially under capacity (95a) and only a small 
increase in total Junior High enrollment can be predicted 
for the future (211a). The Board’s conduct in this regard 
is a flagrant violation of appellants’ right to attend schools 
administered on a non-racial basis, Cooper v. Aaron, 358 
U.S. 1, and demonstrates that the Board has abdicated its 
responsibility as imposed by Brown v. Board of Education, 
349 U.S. 294, to adopt programs and policies which result 
in the elimination of segregation.

Superimposed upon the Board’s racially oriented Junior 
High zone lines (204a) is a freedom of choice plan which 
has been used as an escape valve for white children 
“ trapped” in Negro zones and a convenient tool with 
which to encourage Negro children to transfer out of their 
zones to all Negro schools (Tr. Exhibits 13, 14, 15, 16, 17, 
18) (204a, 205a, 308a).

The following excerpt reveals the negative effect of this 
zoning transfer system on the progress of desegregation:

Q. With a continued transfer system in the City of 
Jackson, is it along the lines of an absolutely free 
transfer system superimposed on that zone system 
based on race, even though it works both ways—is 
it your opinion that the condition of segregation 
will continue to exist? A. Yes.

Q. Well, the zone lines have contributed to that 
condition of seg'regation? A. Yes, the zone lines would 
contribute to it and where they are not effective the 
transfer system could be used for that purpose (205a).



15

In dealing with a similar zoning transfer situation the 
Second Circuit in Taylor v. Board of Education of City 
School District of New Rochelle, 191 F. Supp. 181; 195 
F. Supp. 231 (S.D.N.Y. 1961), aff’d, 294 F.2d 36 (2nd 
Cir. 1961), was faced with evidence of zoning which created 
racial segregation, and affirmed the district court order 
to desegregate, the district court held:

. . .  I see no basis to draw a distinction, legal or 
moral, between segregation established by the formal­
ity of a dual system of education, as in Brown, and 
that created by gerrymandering of school district 
lines and transferring of white children as in the 
instant case. Cf. Gomillion v. Lightfoot, supra. [364 
U.S. 339, 81 S.Ct. 125, 5 L.ed 2d 110] The result is 
the same in each case: the conduct of responsible 
school officials has operated to deny to Negro children 
the opportunities for a full and meaningful educational 
experience guaranteed to them by the Fourteenth 
Amendment. (191 F. Supp. 192)

The United States Office of Education has recognized 
that desegregation plans using a combination of zoning 
and free choice may be used to limit desegregation and 
requires boards to show that such combination plans “ will 
most expeditiously eliminate segregation and all other 
forms of discrimination” (emphasis supplied).4 This 
standard can hardly be met when the superintendent is 
unable to predict that a single white student is expected 
to enroll in all-Negro Merry Junior High School (136a- 
137a) even though a number of whites are zoned in the

4 Revised Statement of Policies For School Desegregation Plans Under 
Title VI of the Civil Rights Act of 1964, U.S. Department of Health, Edu­
cation, and Welfare,.Office of Education, March 1966. Subpart C—Addi­
tional Requirements for Voluntary Desegregation Plans Based on Geo­
graphic Attendance Zones, §181.32.



16

area (Tr. Exs. 17, 18). In considering the adequacy of 
any plan the courts must consider not only its abstract 
constitutionality, but reasonable expectations as to how it 
will work. Where all sides agree that a plan will more 
than likely work to continue segregation patterns, it is 
unconscionable and unconstitutional to approve the plan. 
Such a plan plainly fails to perform the equitable duty of 
undoing the effects of past wrongdoing. Cf. Louisiana 
v. United States, 380 U.S. 145, 154, Cooper v. Aaron, 
358 U.S. 1, 7.

Given the long history of racial discrimination in the 
Jackson school system, the delayed 1963 start of the 
desegregation process in that community, together with 
the Board’s lack of good faith5 and nearly contemptuous 
disregard for lawful court orders,6 the Board in 1966 
is required to do more than adopt policies which result 
in mere token desegregation. See Evans v. Ennis, 281 
F.2d 385, 394 (3rd Cir. 1960), cert, denied, 364 U.S. 933.

After observing that there is a “lack of complete clarity 
as to whether the Constitution requires only an abolition 
of compulsory segregation based on race or something- 
more” (287a), the district court chose to adhere to that 
well known dictum which originated in Briggs v. Elliott, 
132 F. Supp. 776, 777 (E.D.S.C. 1955).7 It concluded 
“that the Constitution does not require integration and 
that it only requires the abolition of compulsory segrega­
tion based on race” (292a). This view of what is required

0 Appellant refers to the Board’s attempt to resegregate Negro pupils, 
see p. 4, supra.

6 The district court held that the Superintendent’s action in denying Ne­
groes minority transfers was in direct violation of the court’s decrees and 
awarded plaintiffs attorneys fees in this aspect of the litigation (308a).

7 “ The Constitution in other words does not require integration. It merely 
forbids discrimination.”



17

pervades Judge Brown’s opinion and formed the basis for 
his rejection of appellants’ feeder system proposal (297a, 
300a) and their contention that the Constitution requires 
school systems to integrate (288a, 292a),

The United States Supreme Court has indicated in a 
number of recent opinions that the requirements for “good 
faith compliance at the earliest practicable date” and “all 
deliberate speed” announced in Brown v. Board of Educa­
tion, 349 U.S. 294, 300, 301, must now be viewed in an 
altered contest when interpreting and applying the lan­
guage in plans for desegregation. Goss v. Board of Edu­
cation, 373 U.S. 683, 689; Calhoun v. Latimer, 377 U.S. 
263, 264-65; see Bradley v. School Board of Richmond, 
382 U.S. 103; Rogers v. Paul, 382 U.S. 198. Compare 
Watson v. City of Memphis, 373 U.S. 526. These Supreme 
Court authorities make it clear that in this day and time 
school boards must adopt desegregation plans which truly 
accommodate the process of integration in public schools. 
The Fifth Circuit which formerly adhered to the Briggs 
standard; Boson v. Rippy, 285 F.2d 43, 48 (5th Cir. 1960) ; 
Avery  v. Wichita Falls Independent School District, 241 
F.2d 230, 233 (5th Cir. 1957), has abandoned that posi­
tion. In Singleton v. Jackson Municipal Separate School 
District, 348 F.2d 729 (5th Cir. 1965), the court indicated 
that the Briggs dictum, “ should be laid to rest” and that 
“ . . . the second Brown opinion clearly imposes on public 
school authorities the duty to provide an integrated school 
system.” 348 F.2d at 730. The Eighth Circuit seems to be 
in accord. Kemp v. Beasley, 352 F.2d 14, 21 (8th Cir. 1965).

In fact, the Briggs statement8 was Obiter Dicta. This 
was the opinion of a three-judge court issued promptly

Note 7, supra.



18

on remand following the Supreme Court’s reversal of its 
decision of upholding compulsory segregation. It was is­
sued in a totally abstract context apparently before coun­
sel even argued the case.9 Because of confusion of defini­
tions of “integration” and “ segregation” the Briggs dictum 
is meaningless. In the past it has been used in support 
of all sorts of now discredited schemes to maintain segre­
gation. Cf., Goss v. Board of Education, 301 F.2d 164 
(6th Cir. 1962), reversed, 373 U.S. 683; Kelley v. Board of 
Education of Nashville, 270 F.2d 209 (6th Cir. 1959).

The district court reached the conclusion that “ ‘honestly’ 
drawn zone lines which, result in de facto segregation do 
not deprive plaintiff of any constitutional rights” (295a). 
This statement makes it apparent that the court viewed 
the issue as similar to the problem of racial imbalance in 
the North rather than considering it in the context of the 
Southern problem, i.e., this disestablishment of state 
created patterns of discrimination.10

Appellants submit that the Briggs’ view, which this Court 
seems to have approved in Kelley  v. Board of Education 
of Nashville, 270 F.2d 209, 226 (6th Cir. 1959), should be 
reexamined and rejected in light of more recent, contrary, 
pronouncements of the United States Supreme Court and 
other appellate courts. The Kelley type plan was in­
validated by Goss v. Board of Education, 373 U.S. 683.

The burden to desegregate and to justify any delay 
is with the Board and the Board has at its disposal the

9 “ This cause coming on to be heard on the motion of plaintiffs for a 
judgment and decree in accordance with the mandate of the Supreme Court, 
and the Court having carefully considered the decision of the Supreme 
Court, the arguments of counsel and the record heretofore made in this 
cause . . . ”  Briggs v. Elliott, 132 F. Supp. 776, 778 (E.D.S.C. 1955).

10 For comparison of the problems see Fiss, Racial Imbalance in the 
Public Schools: The Constitutional Concepts, 78 Harv. L. Eev. 564 (1965).



19

skills, personnel and necessary information to devise trans­
fer and zoning policies necessary to conform to both con­
stitutional standards and educationally sound policies. 
Appellee in desegregating its school system should note 
and follow the standard of responsibility set by the United 
States Office of Education: “It is the responsibility of a 
school system to adopt and implement a desegregation 
plan which will eliminate the dual school system and all 
other forms of discrimination as expeditiously as possible” 
(emphasis supplied).11

Appellants’ experts have suggested the use of a feeder 
system, the use of which would result in certain elementary 
schools feeding particular junior high schools (207a). The 
board has offered no testimony indicating that such a sys­
tem is not feasible, practical, educationally sound, and the 
most efficient and expedient device for achieving meaning­
ful desegregation in the Jackson system. Appellants do 
not, however, here intend to suggest any specific formula­
tion for zoning and transfer plans. But if the Board does 
not wish to take advantage of the feeder system in ful­
filling its obligation to Negro school children, then what­
ever alternative system it chooses to adopt, must meet 
presently accepted requirements and lead to meaningful 
public school desegreg'ation.

11 Supra note 4, $181.11.



20

II.

A “ Freedom of Choice” Faculty Desegregation Plan Is 
Tantamount to No Plan At All, and Falls Far Short of 
Vindicating the Right of Negro Children to An Educa­
tion Free From Any Consideration of Race as Guaranteed 
By the Fourteenth Amendment to The Constitution of 
The United States.

The “freedom of choice” faculty desegregation plan 
approved below is fraught with evil and incapable of 
meeting recent standards set by the Supreme Court of 
the United States. Bradley v. School Board of Richmond, 
382 U.S. 103 ;12 Rogers v. Paul, 382 U.S. 198. In the Brad­
ley and Gilliam13 cases, Negro petitioners sought certiorari 
from decisions approving the refusal to hold full evi­
dentiary hearings on the continued assignment of faculties 
on the basis of race. The Supreme Court held that Ne­
groes are entitled to a full evidentiary hearing without 
delay on their contention that faculty segregation delays 
the process of desegregation:

Each plan had been in operation for at least one 
academic year; these suits had been pending for sev­
eral years; and more than a decade has passed since 
we directed desegregation of public school facilities 
“with all deliberate speed,” Brown v. Board of Educa­
tion, 349 U.S. 294, 301. Delays in desegregating school 
systems are no longer tolerable. Goss v. Board of 
Education, 373 U.S. 683, 689; Calhoun v. Latimer, 
377 U.S. 263, 264-65; see Watson v. City of Memphis, 
373 U.S. 526. (382 U.S. at 105)

. . .12 Decided together with Gilliam v. School Board of Hopewell, also on 
petition for certiorari to the same Court.

13 See Note 12 above.



21

The ‘ ‘freedom of choice” plan adopted by the district 
court cannot stand in the face of the admonition in the 
above quoted language for the plan will effectively post­
pone desegregation indefinitely. Moreover, such a plan 
erroneously places the burden of faculty desegregation on 
teachers, while the task is clearly the responsibility of 
the Board.

A  free choice program for teachers, viewed in the 
context of the history of discrimination in Jackson, is a 
totally ineffective device for accomplishing* desegregation. 
One can hardly expect a Negro teacher in this hostile 
atmosphere to exercise a choice to teach in heretofore 
all-white schools when Negro teachers throughout the 
South are being discharged as school desegregation reaches 
their communities.14 It is sheer folly to expect Negro 
teachers to exercise such a choice in the face of these 
potentially disastrous economic and social consequences, 
where the local school board is opposing faculty deseg­
regation in court on the ground “ that the destruction of 
the entire City School System is seeded in this request . . .” 
(42a). Cases involving dismissals of Negro teachers are 
now pending in federal courts at every level as a result 
of the actions of school boards in North Carolina, South 
Carolina, Mississippi and Texas. See Franklin v. County

14 The National Education Association has sponsored a detailed study of 
the problem. See “ Report of Task Force Appointed to Study the Problem 
of Displaced School Personnel Related to School Desegregation and the 
Employment Studies of Recently Prepared Negro College Graduates Cer­
tified to Teach in 17 States” , December, 1965. See also, Ozmon, “ The Plight 
of the Negro Teacher” , The American School Board Journal, pp. 13-14, 
September, 1965. The problem was recognized in Brown v. County School 
Board of Frederick County, Va., 245 F. Supp. 549, 560 (W.D. Va. 1965). “ I 
cannot ignore the fact that those who have suffered the greatest hardships 
as a result of school integration have been the Negro teachers whose jobs 
have been lost in the backwash created by the closing of Negro schools.”



2 2

School Board of Giles County, No. 10,214, 4th Cir., April 6, 
1966.

Only recently in Kier v. County School Board of Au­
gusta County, Virginia, 249 F. Snpp. 239, 248 (W.D. Va. 
1966), Judge Michie found free choice plans for teachers 
unacceptable:

The duty of assigning teachers and administrative 
staff to the various schools in the system rests squarely 
upon the shoulders of the school authorities. Unlike 
the pupil situation, there can he no “ freedom of choice” 
plan for teachers and staff assignments. The duty 
must be squarely and immediately met.

The district court found the appellants’ proof made it 
“ obvious that defendants have followed a policy of as­
signing white teachers, simply because of their race, only 
to schools in which pupils are all or predominantly white, 
and of assigning Negro teachers, simply because of their 
race, only to schools in which pupils are Negroes” (305a). 
Nevertheless, the court felt that appellants’ proof was not 
“ sufficiently strong to entitle them to an order requiring 
integration of faculties and principals” (305a). Appellants 
contend that where the existence of segregated faculties 
is shown, it is unnecessary to prove the actual adverse 
effects on Negro children. This is implicit in the Supreme 
Court’s statement in Bradley v. School Board of Richmond, 
382 U.S. 103, 105: “ There is no merit to the suggestion 
that the relation between faculty allocation on an alleged 
racial basis and the adequacy of desegregation plans is 
entirely speculative.”  See K ier  v. County School Board 
of Augusta County, Virginia, 249 F. Supp. 239, 246 (W.D. 
Ya. 1966); Thompson v. County School Board of Hanover 
County, Virginia, Civ. No. 4274, E.D. Va., January 27,



23

1966. This Court has recognized the right of pupils to 
desegregated faculties. Thus, in Mapp v. Board of Educa­
tion of Chattanooga, 319 F.2d 571, 576 (6th Cir. 1963), 
stricken allegations concerning desegregation of faculties 
were ordered to be restored to the complaint.

Assuming that proof of ill effects is required, appellants 
submit that such proof is clear in the record (201a-202a, 
223a~224a, 231a-232a, 238a-239a) and the district court erred 
in holding to the contrary.

In the Jackson system 120 Negro pupils have success­
fully enrolled in formerly all-white schools, but not a single 
white student is enrolled in a Negro school (280a-285a). 
This is but another indication of the trend toward one-way 
desegregation; i.e., Negro pupils leaving their all-Negro 
schools with all-Negro faculties and student bodies intact.15 
It is obvious that if this pattern is continued without cor­
responding integration of Negro faculty personnel, not 
only will meaningful pupil desegregation become impos­
sible, but Negro teachers will be gradually siphoned out 
of the system, and plaintiffs’ efforts to achieve faculty 
desegregation will no longer be difficult, but impossible.

Faculty segregation impedes the progress of pupil 
desegregation. Where, as here, students and parents are 
given a choice of schools by exercising rights granted 
under defendants’ open transfer plan, faculty segregation 
influences a racially based choice. Arrangements which 
work to promote segregation and hamper desegregation 
are not to be tolerated in desegregation plans. Goss v. 
Board of Education, 373 U.S. 683. Faculty segregation 
influences a racially based choice as surely as the law

15 See comprehensive statistics published by the Southern Education Re­
porting Service in its periodic “ Statistical Summary of School Segregation- 
Desegregation in Southern and Border States” , loth Revision, December 
1965, passim.



24

requiring racial designations on ballots which was in­
validated in Anderson v. Martin, 375 U.S. 399.

The United States Office of Education has noted the 
negative consequences of pupil desegregation without con­
current faculty desegregation. Thus, in further implement­
ing Title VI of the Civil Rights Act of 1964 (42 U.S.C.A. 
2000d) the Office of Education in its March, 1966 Revised 
Statement of Policies16 requires school districts submitting 
plans for desegregation to comply with the following 
policies:

§181.13 Faculty and Staff

(a) Desegregation of Staff. The racial composition 
of the professional staff of a school system, and of 
the schools in the system, must be considered in de­
termining whether students are subjected to discrim­
ination in educational programs. Each school system 
is responsible for correcting the effects of all past 
discriminatory practices in the assignment of teachers 
and other professional staff.

(b) New Assignments. Race, color, or national origin 
may not be a factor in the hiring or assignment to 
schools or within schools of teachers and other pro­
fessional staff, including student teachers and staff 
serving two or more schools, except to correct the 
effects of past discriminatory assignments.

*  *  #  #  *

(d) Past Assignments. The pattern of assignment 
of teachers and other professional staff among the 
various schools of a system may not be such that 
schools are identifiable as intended for students of a 
particular race, color, or national origin, or such that

16 Supra, Note 4.



25

teachers or other professional staff of a particular 
race are concentrated in those schools where all, or 
the majority, of the students are of that race. Each 
school system has a positive duty to make staff as­
signments and reassignments necessary to eliminate 
past discriminatory assignment patterns. Staff deseg­
regation for the 1966-67 school year must include 
significant progress beyond what was accomplished 
for the 1965-66 school year in the desegregation of 
teachers assigned to schools on a regular full-time 
basis. Patterns of staff assignment to initiate staff 
desegregation might include, for example: (1) Some 
desegregation of professional staff in each school in 
the system, (2) the assignment of a significant portion 
of the professional staff of each race to particular 
schools in the system where their race is a minority 
and where special staff training programs are estab­
lished to help with the process of staff desegregation, 
(3) the assignment of a significant portion of the 
staff on a desegregated basis to those schools in which 
the student body is desegregated, (4) the reassignment 
of the staff of schools being closed to other schools 
in the system where their race is a minority, or (5) 
an alternative pattern of assignment which will make 
comparable progress in bringing about staff desegrega­
tion successfully.

These Office of Education standards for faculty deseg­
regation are not binding on the courts. They are, however, 
entitled to great weight. See Singleton v. Jackson Munic­
ipal Separate School District, 348 F.2d 729, 731 (5th Cir. 
1965); Price v. Denison Independent School District Board 
of Education, 348 F.2d 1010, 1013 (5th Cir. 1965); Kemp 
v. Beasley, 352 F.2d 14, 18-19 (8th Cir. 1965). Significantly,



26

at least two district courts had fashioned orders before 
the Office of Education adopted its Revised Statement 
which complement the new regulations. Dowell v. School 
Board of Oklahoma City Public Schools, 244 F. Supp. 971, 
977-8 (W.D. Okla. 1965) (appeal pending), and Kier v. 
County School Board of Augusta County, Virginia, 249 
F. Supp. 239, 247 (W.D. Va. 1966), both require plans 
under which the percentage of Negro teachers assigned 
to each school would result in an equal distribution of 
Negro teachers throughout the system. This or similar 
relief is necessary to eliminate the problem of faculty 
segregation in Jackson, Tennessee. The Board should be 
required to submit an administrative plan for faculty 
desegregation in accord with such definitive guidelines.

III.

School Board Participation In and Support For Pro­
grams Which Discriminate On the Basis of Race Is 
Prohibited By The Fourteenth Amendment to The Con­
stitution of The United States.

The Board has two policies which appellants specifically 
objected to in the court below. One is the practice of 
closing schools so that public school teachers may have a 
holiday to attend segregated teacher in-service training 
programs (63a-64a). The other is the practice of allowing 
the Jackson Symphony Association to hold segregated con­
certs on school premises, during school hours, with au­
diences composed of pupils from formerly all-white city 
schools, county schools and Catholic schools (271a). Negro 
pupils in Negro schools were completely excluded from 
these concerts (271a). Obviously neither of these activities 
would be possible without School Board cooperation.



The district court erroneously viewed the issue raised by 
segregated teacher in-service training as one of who has 
control of teacher organizations and concluded that the 
Board does not (306a-307a). This conclusion was reached 
in spite of the Board’s admission in its pleadings that 
teacher in-service training was included in yearly school 
board planning (68a, 76a).

The same is true regarding the district court’s finding 
that symphony concerts are “ outside activity” (306a). It 
is submitted that the question which should have been 
posed regarding these activities is whether the Board, may, 
under the circumstances, cooperate with and support or­
ganizations which practice discrimination based on race.

Contrary to the district court’s holding (307a) Negro 
pupils are directly affected by segregated teacher in-ser­
vice training. The first Brown case held that a segregated 
education was inherently unequal. What could be more 
closely connected with the education of pupils than the 
continuing education received by their teachers on a racial 
basis? The court’s conclusion that “ segregation in teacher 
in-service training has no effect on their right as pupils” 
(307a) is clearly inconsistent with McLaurin v. Oklahoma, 
339 U.S. 637. There a Negro had been admitted to a State 
university for graduate instruction in education. Solely 
because of his race, he was required to occupy a seat in 
a row in the classroom reserved for colored students and 
had special tables in the library and cafeteria. No white 
student received this kind of treatment. The Supreme 
Court said (339 U.S. 637, 641):

The result is that appellant is handicapped in his 
pursuit of effective graduate instruction. Such re­
strictions impair and inhibit his ability to study, to 
engage in discussions and exchange views with other



28

students, and, in general, to learn Ms profession. 
# * * Those who will come under his guidance and 
influence must he directly affected by the education 
he receives. Their own education and development will 
necessarily suffer to the extent that his training is 
unequal to that of his classmates. (Emphasis sup­
plied.)

Official action, regardless of the form it takes, is subject 
to constitutional limitations when it supports racial dis­
crimination. See, Burton v. Wilmington Parking Au­
thority, 365 U.S. 715; Cooper v. Aaron, 358 U.S. 1, 4. The 
Supreme Court’s most recent pronouncement in the State
action area, Evans v. N ew ton,------ U.S. ------- , 15 L.ed. 2d
(No. 5) 373, 377; pointed out that:

Conduct that is formally ‘private’ may become so 
entwined with governmental policies or so impregnated 
with a governmental character as to become subject 
to the constitutional limitations placed upon state ac­
tion.

The Court went on to assume arguendo that “no constitu­
tional difficulty would be encountered” if the conduct in 
question “ in no way implicated the State. . . .” 15 L.ed. 
2d at 377-78. (Emphasis supplied.) In Muir v. Louisville 
Park Theatrical Ass’n., 202 F.2d 275 (6th Cir. 1953) this 
court held that a private theatrical association’s policy 
of refusing* Negroes admission to operatic performances, 
held on property owned by the City and leased to the As­
sociation, did not amount to unlawful discrimination in 
violation of the Fourteenth Amendment. On certiorari, 
the Supreme Court vacated and remanded the judgment 
in light of Brown v. Board of Education, 347 U.S. 483, 
and prevailing conditions. 347 U.S. 971. More recently



29

racially discriminatory conduct has been prohibited when 
the State participates “ through any arrangement, manage­
ment, funds or property,” Cooper v. Aaron, 358 U.S. 1, 4, 
19 and when the State places its “power, property or 
prestige” behind the discrimination. Burton v. Wilmington 
Parking Authority, 365 U.S. 715, 725; see, Hawkins v. 
North Carolina Dental Society, 355 F.2d 718 (4th Cir. 1966).

The above cited authorities make it perfectly clear that 
the Jackson Symphony Orchestra may not hold segregated 
performances on school premises and the Board may not 
adopt the segregationist policy of the symphony associa­
tion. The district court therefore erred in failing to con­
demn this practice and in refusing to order the Board not 
to permit segregated performances in the future.

It is also clear that the Board cannot acquiece to policies 
which perpetuate faculty segregation and hence pupil seg­
regation. Governmental arrangements with “private” per­
sons which encourage segregation and hamper desegrega­
tion have been condemned. Goss v. Board of Education, 
373 U.S. 683. The district court’s refusal to enjoin the 
Board from future participation in segregated teacher in- 
service training programs was also error.

Relief

For the foregoing reasons, appellants respectfully sub­
mit that the judgment of the court below should be re­
versed and the cause should be remanded with directions 
to the trial court to require the Board to present a new 
plan of desegregation, said plan to take effect not later 
than the next school term following this court’s order and 
to include:

1. Revision of present junior high school zone lines 
which impede desegregation and elimination of policies



30

which permit transfer to obtain a segregated educa­
tion. Transfer provisions which will permit pupils as­
signed to segregated schools to obtain transfer to 
desegregated schools should also be included;

2. Provisions for the assignment of all teachers and 
other faculty personnel in accordance with qualifica­
tion and need without regard to race.

The district court should be directed to issue an order 
enjoining the Board from giving any further support in 
any form to any “private” group or organization which 
practices discrimination based on race.

In addition, an express duty should be imposed on the 
Board to integrate the school system, said duty to be car­
ried out by the adoption and implementation of educa­
tionally sound procedures and practices which the Board 
may reasonably undertake.

Bespectfully submitted,

J ack  G reenberg

J ames M. B abbit , III
M ic h ael  M eltsner

G erald A . S m it h

10 Columbus Circle
New York, New York 10019

A von  N . W illiam s , J r .
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Plaintiffs-Appellants



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