Maxwell v. Davidson County, TN Board of Education Brief of Plaintiffs-Appellants

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I s  THE

IMtth Btntts (Emart n! Kppmls
F ob th e  S ix t h  C ibcuit 

No. 14,607

H enry C. M axw ell , J r ., et al.,
Plaintiffs-Appellants,

Cou nty  B oard of E ducation of 
D avidson Co u nty , T e n n ., et al.,

Defendants-Appellees.

appeal from  th e  united  states district court for the

MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

BRIEF OF PLAINTIFFS-APPELLANTS

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

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall 
J ack  G reenberg 
J ames M. N abrit, III 

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs-Appellants

Of Counsel:
N orman C. A m akbr



I N D E X

PAGE

Statement of Questions Involved ... ..   1

Statement of F acts....................................      2

Argument .............................................................    9

Relief .................................................................    23

T able oe Cases :

Barrows v. Jackson, 346 U. S. 249, 73 S. Ct. 1031, 97
L. ed. 1586 (1953) ........................ .................... ..............  21

Board of Education v. Groves, 261 F. 2d 527 (4th Cir.
1958)  ........................ .............. ......  15

Bolling v. Sharpe, 347 U. S. 497, 74 S. Ct. 693, 98 L. ed.
884 (1954) .................................................................. .....11,18

Booker v. State of Tennessee Board of Education, 240
F. 2d 689 (6th Cir. 1957) ___________ _____ _______ ..15,16

Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) ................ 18
Brown v. Board of Education, 347 U. S. 483, 74 S. Ct.

686, 98 L. ed. 873 (1954) ..................................... ..... ...10,11
Brown v. Board of Education, 349 U. S. 294, 75 S. Ct.

753, 99 L. ed. 1083 (1955) ______ ___ ____ 10,11,12,14, 21
Buchanan v. War ley, 245 U. S. 60, 38 S. Ct. 16, 62 L. ed.

149 (1918) ....... .................................................................  14

Child Labor Tax Case, 259 U. S. 20, 42 S. Ct. 449, 66
L. ed. 817 (1922) ....................................... .................... . 22

Clemons v. Board of Education, 228 F. 2d 853 (6th Cir.
1956) ................................................. ........... ...................  15

Cooper v. Aaron, 358 U. S. 1, 78 S. Ct. 1401, 3 L. ed.
2d 5 (1958) ......................................................... 10,11,14, 21



IX

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala., 1949) .....  22

Ethyl Gasoline Corp. v. United States, 309 U. S. 436,
60 S. Ct. 618, 84 L. ed. 852 (1940) ....... .......................... 22

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ............... 15

Hirabayashi v. United States, 320 U. S. 81, 63 S. Ct.
1375, 87 L. ed. 1774 (1943) ................... ........................ 18

H. J. Heintz Co. v. N.L.R.B., 110 F. 2d 843 (6th Cir. 
1940), aff’d, 311 U. S. 514................................................ 22

International Asso. of Machinists v. N.L.R.B., 311 U. S.
72, aff’g 110 F. 2d 29 (D. C. Cir. 1940) ......................  22

Kelley v. Board of Education, 270 F. 2d 209 (6th Cir.
1959)  15,17

Korematsu v. United States, 323 U. S. 214, 65 S. Ct.
193, 89 L. ed. 194 (1944)........................................   18

Lucy v. Adams, 350 U. S. 1, 76 S. Ct. 33, 100 L. ed. 3 
(1955) ............................................................................... 15

McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151,
35 S. Ct. 69, 59 L. ed. 169 (1914) .............................. 11,19

Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 59
S. Ct. 232, 83 L. ed. 208 (1938) ....... ................... ....... 11,19

Moore v. Board of Education, 252 F. 2d 291 (4th Cir. 
1958), aff’g 152 F. Supp. 114 (D. Md. 1957), cert, 
den. sub nom. Slade v. Board of Education, 357 U. S.
906 (1958) .................... - ....... - ........................................  15

N.A.A.C.P. v. Alabama, 357 U. S. 449, 78 S. Ct. 1163,
2 L. ed. 2d 1488 (1958) .......................................

N.L.R.B. v. Colton, 105 F. 2d 179 (6th Cir. 1939)

PAGE

21
22



I l l

N.L.R.B. v. Link-Belt Co., 311 U. S. 584 ............. .......... . 22
N.L.R.B. v. Newport News Shipbuilding & Dry Dock

Co., 308 U. S. 241.................... ......................................  22
N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303

U. S. 261........ .............. ........................................ ...........  22
N.L.R.B. v. Southern Bell Tel. & Tel. Co., 319 U. S. 50 22 
N.L.R.B. v. Tappan Stove Co., 174 F. 2d 1007 (6th Cir. 

1949) ..... .......... ............... ....... ................ - .......................  22

Oyama v. California, 332 U. S. 633 ...... .......... ............ . 19

Pettit v. Board of Education, 184 F. Supp. 452 (D. Md.
1960)...  .......... ....... ................................... .... ................... -  15

Porter v. Warner Holding Co., 328 IT. S. 395, 66 S. Ct. 
1086, 90 L. ed. 1332 (1946) .......... ......... ..... ............ .....  20

Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. ed.
1161 (1948) ............................................... ............. 19,20,21

Sipuel v. Board of Regents, 332 U. S. 631, 68 S. Ct. 299,
92 L. ed. 247 (1948) ..................... ................ ....... .........  11

Sparrow v. Strong, 70 U. S. (3 Wall.) 97, 18 L. ed. 49
(1866) ...................... ............ - ................... ............. - ..... . 22

Strauder v. West Virginia, 100 IJ. S. 303, 25 L. ed. 664
(1880) ................ ...... ......... ............... ................. .............  20

Sweatt v. Painter, 339 U. S. 629, 70 S, Ct. 848, 94 L. ed.
1114 (1950) ..........................................................- ........ -  11

Texas & N. O. A. Co. v. Brotherhood of Rg. & S. S. 
Clerks, 281 U. S. 548 ......... .......... ................................. . 22

Watts v. Indiana, 338 U. S. 49, 69 S. Ct. 1347, 93 L. ed.
1801 (1949) .......................... ............................................  22

United States v. Crescent Amusement Co., 323 U. S.
173, 65 S. Ct. 254, 89 L. ed. 160 (1944) ........ .......... . 22

PAGE



IV

Oth er  A uthorities :
PAGE

“ Pomeroy’s Equity Jurisprudence” , 5th Ed., Symons,
1941 ........... ...... ............. ......... .........................................  20

“ The Lawfulness of the Segregation Decisions” , Black,
69 Yale Law J. 421, 428 .................................................  16



V

INDEX TO APPENDIX

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

Complaint   ....................... —-.....-...............................  la

Motion for Temporary Restraining Order .................  26a

Motion for Preliminary Injunction ........................—-  27a

Order to Show Cause ......   28a

Motion to Dismiss ........    29a

Affidavit of J. E. Moss .......................... -...................... 31a

Exhibit “ A ” to Affidavit .......—-....... ...................  36a

Exhibit “ B” to Affidavit........................................  37a

Affidavit of Frank White ............................................ 38a

Affidavit of Melvin B. Turner......................................  40a

Motion to Strike Certain Portions of the Complaint.. 42a

Answer ..............—...........................................................  43a

Excerpts from Transcript of Hearing, September 26,
1960 ............................................................................... 52a

J. E. Moss ...............................................................  52a

Melvin B. Turner.................................................... 54a

J. E. Moss ...............................................................  55a

Order, October 7, 1960 .................................................. 61a

PAGE



VI

Report of the County Board of Education ............... 64a

Exhibit “ A ” to Report ..........................................  65a

Plan ...........................................................................  69a

Specification of Objections to Plan .......... ................  72a

Excerpts from Transcript of Hearing, October 24,
1960 ...................... ....................................... ................  77a

J. E. Moss ................................. ........... ..................  77a

Dr. Eugene Weinstein .........................      94a

Annie P. D river.......................................................... 108a

Henry C. Maxwell ..........................................    110a

Findings of Fact, Conclusions of Law and Judgment 
November 23, 1960 ........................................................ 114a

Judgment ...................................................................  131a

Order, November 29,1960 ................................................  134a

Motion for New Trial and for Appropriate Relief .. 136a

Motion of Plaintiffs for Further Relief ..................... 139a

Exhibit “ A ” to Plaintiffs’ Motion ......................... 142a

Supplemental Answer ....................................    146a

Excerpts from Transcript of Hearing, January 10,
1961 ......................................................      149a

Joseph R. Garrett ...............................    149a

Findings of Fact, Conclusions of Law and Judgment 171a 

Judgment .........................................................   175a

Notice of Appeal ..................................     177a

PAGE



I n  THE

BUUb (Euurl of Appeals
F ob th e  S ix t h  Circuit

No. 14,607

H enry  C. M axw ell , Jr., et al.,

Plaintiff s-Appellants,

— v .—

County  B oard of E ducation of 
D avidson Co u nty , T e n n ., et al,,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

BRIEF OF PLAINTIFFS-APPELLANTS

Statement o f Questions Involved

I. Were appellant Negro children denied Fourteenth 
Amendment rights by refusal of an injunction requiring 
appellee board to admit them to white schools when the 
court below approved a grade-a-year desegregation plan 
barring appellants and other Negroes in grades above those 
covered by the plan from an opportunity for desegrega­
tion?

The Court below answered the question No.

Appellants contend it should be answered Yes.



2

II. Have appellants been deprived of rights protected 
by the Fourteenth Amendment to the Constitution of the 
United States by a provision of the board’s desegregation 
plan which expressly recognizes race as an absolute ground 
for transfer between schools, and thus tends to perpetuate 
racial segregation?

The Court below answered the question No.
Appellants contend it should be answered Yes.

Statement o f  Facts

This case involves racial segregation in the public schools 
of Davidson County, Tennessee, an area surrounding the 
City of Nashville. Plaintiffs are Negro residents of David­
son County; the adults are parents of minor plaintiffs, 
12 children attending the County public schools. Appel­
lants here are 4 families including 9 children.

September 9, 1960, plaintiffs filed this class action (Eule 
23(a)(3), Federal Eules of Civil Procedure) in the Dis­
trict Court for the Middle District of Tennessee, against 
defendants-appellees, the County Board of Education and 
County School Superintendent. The complaint (7a-25a) 
generally alleged racially segregated operation of the 
Davidson County schools and exclusion of several plain­
tiffs from particular schools on a racial basis, claiming that 
these practices violated the Fourteenth Amendment. Plain­
tiffs sought injunctive and declaratory relief, asking that 
defendants be restrained from “maintaining or operating 
a compulsory racially segregated public school system” in 
the County, and also “ from refusing to admit plaintiffs and 
other persons similarly situated” to designated schools 
(24a). The complaint also requested that the Court:

. . . enter a decree directing the defendants to present 
a complete plan, . . . for the reorganization of the



3

entire school system . . . into a unitary, nonracial 
school system which shall include a plan for the 
assignment of children on a nonracial basis, the assign­
ment of teachers, principals and school personnel on a 
nonracial basis, the drawing of school zone lines on a 
nonracial basis, the allotment of funds, the construction 
of schools, the approval of budgets on a nonracial 
basis, and the elimination of any other discriminations 
in the operation of the school system or in the school 
curriculum which are based solely upon race and color. 
(24a-25a).

Defendants filed various pleadings setting forth objec­
tions and defenses, including a motion to dismiss (29a) 
and an answer (43a). The answer admitted that the county 
schools were operated on a racially segregated basis (Com­
plaint H8; Answer ff8), and acknowledged the exclusion of 
some of the minor plaintiffs from designated schools on 
the basis of race at the start of the 1960-61 school term 
(Ans. j[10).

September 19, 1960, the Court issued a show cause order 
(28a). At the hearing held September 26, 1960, the Board, 
bv counsel, acknowledged its obligation to present a de­
segregation plan. The Court received evidence relating to 
the requests of six of the minor plaintiffs for temporary 
injunctive relief to admit them to all white schools. These 
six children were the Maxwell, Driver and Clark childien. 
It was explained to the Court that no request for immediate 
individual relief was made by the other six pupils who at­
tended elementary grades served by all-Negro schools close 
to their homes. The Superintendent of Schools acknowl­
edged that the admission of these six children to the schools 
requested would not cause any serious administrative prob­
lems which would disrupt the schools (53a-54a); and he 
identified the possibility of friction, bloodshed, or fights



4

as the principal reasons for opposing their admission 
(56a-60a). It was clear that the six plaintiffs lived closer 
to the white schools they sought to enter than the colored 
school they attended (41a).

The Court withheld action on the request for injunctive 
relief but did direct the defendants to submit a desegrega­
tion plan by October 19,1960.

The Board submitted a plan (69a-71a) which provided 
in part: (1) for the desegregation of one school grade each 
year beginning September, 1961; (2) for zoning without 
reference to race for each grade as it became desegregated; 
(3) that each student entering the first grade would be per­
mitted to attend school in the zone of his residence; (4) for 
“ careful consideration” of applications for transfer for 
“ good cause” of students from the school of their zone to 
another school; (5) that valid conditions for requesting 
transfer would be when a white or colored child would 
otherwise be required to attend a school previously serving 
students of the other race or to attend a school where the 
majority of students were of a different race; (6) for a 
plan of pupil registration each Spring.

Plaintiffs objected to the plan (72a-76a) because: (1) it 
did not provide for desegregation “with all deliberate 
speed” ; (2) it did not take into account the more than six 
year period since the Brown case in which the Board had 
failed to take any steps to comply with that ruling; (3) the 
twelve year period proposed before desegregation would be 
complete was not “ necessary in the public interest” nor 
“ consistent with good faith compliance at the earliest prac­
ticable date” with the Brown decision; (4) the defendants 
had not sustained “ their burden of showing any substantial 
problems related to public school administration” of the 
types specified in Brown; (5) the plan substantially copied 
the so-called “Nashville Plan” without regard for local



5

conditions in Davidson County and was “ a minimum plan 
predicated on subjective and mental fears of the defendants 
as to possible community hostility or friction among stu­
dents” ; (6) it would forever deprive infant plaintiffs and 
all other Negro children now enrolled in the public schools 
of Davidson County of their rights to a racially unsegre­
gated public education” ; (7) it ignored and failed to comply 
with the Court’s statement from the bench on 26 Septem­
ber 1960 to the effect that the individual plaintiffs had 
been denied their constitutional rights and which suggested 
that these rights be accorded voluntarily by defendant 
rather than by court order; (8) it failed to take account of 
recent annexation by the City of Nashville of a large area 
of Davidson County as a result of which some of the public 
schools of the County became a part of the partially de­
segregated Nashville school system; (9) it prevented plain­
tiffs from enrolling in schools of a technical or specialized 
nature where enrollment is not based on location of resi­
dence; (10) racial factors were “valid conditions” of trans­
fer requests and such factors were designed to perpetuate 
racial segregation; (11) the absence of any provision for 
reorganization of the entire County school system “ into a 
unitary, nonracial school system” contemplated “ continued 
maintenance and operation by defendants of ‘Negro’ and 
‘white’ schools substantially designated by race.”

Plaintiffs renewed their motions for injunctive relief to 
be effective no later than January, 1961, and again prayed 
for reorganization of the entire school system on a non­
racial basis (75a-76a).

The Court held a 4-day hearing beginning October 24, 
1960; excerpts from the testimony appear at 77a. et seq. 
Superintendent Moss testified that the County system had 
about 45,000 white pupils and 2400 Negro pupils; the 
County maintains 7 Negro schools (77a). He further testi­
fied that with complete desegregation about 1,000 Negro



6

pupils would be eligible to attend the white schools. It 
was admitted that the six plaintiffs who sought admission 
to white schools could be accommodated “as far as room is 
concerned” (82a); and that desegregation could eliminate 
some of the system’s transportation problems (83a). Mr. 
Moss acknowledged that in recent years the Board had 
built two Negro schools located for maximum use under 
a segregated system (83a-84a); that pupils were allowed 
to transfer during the school year for administrative rea­
sons without any period of waiting (85a); that the transfer 
provisions of the Board’s plan were identical to those in 
the Nashville Plan, and that as the plan operated in Nash­
ville and was intended to operate in Davidson County, 
pupils were not required to go to the schools in their zones 
and then seek transfers out but were assigned as before 
unless they affirmatively sought transfers to the schools in 
their zones (91a-92a).

Dr. Eugene Weinstein, Associate Professor of Sociology 
at Vanderbilt University, testified as to a survey of the 
attitudes of Negro parents in Nashville who had a choice 
as to whether or not to send their children to desegregated 
schools. He indicated that the most frequent factor influ­
encing parents not to send their children to desegregated 
schools under the stair-step plan with a transfer option pro­
vision was an unwillingness to separate several children 
in a family (97a). He further testified that 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 system ‘oriented’ to­
ward a segregated system with token desegregation” (101a- 
102a).

In its findings, the Court found with respect to the Max­
well, Driver and Clark children, that “had these infant



7

plaintiffs been white children, they would have been ad­
mitted or transferred to the said ‘white’ schools to which 
they applied” (116a).

In its opinion of November 23, 1960 (114a, et seq.), the 
Court approved the proposed plan with several exceptions. 
The Court required the Board to desegregate grades 1 
through 4 beginning in January 1961, in order that desegre­
gation in the County would proceed on the same schedule as 
in Nashville. The Court also required desegregation of sum­
mer classes, and provided for specific notice by the defen­
dants to parents of their zones of residence. Plaintiffs’ 
prayers for injunctive relief were denied, including the re­
quest of several plaintiffs for immediate admission. The 
Court said:

The legal rights of all plaintiffs are recognized and 
declared but they are enforced in accordance with the 
provisions of the plan with the above modifications. 
Said plan is not a denial of the rights of the individual 
plaintiffs, but is a postponement in enforcement of the 
rights of some of the plaintiffs in the interest of the 
school system itself and the efficient, harmonious, and 
workable transition to a desegregated method of oper­
ation. (131a.)

The Court reserved judgment on the question of segregated 
teaching and personnel assignments.

On December 2, 1960, plaintiffs moved for a new trial 
and for appropriate relief under Federal Rules 59 and 60, 
again raising the question of individual relief for the Max­
well and Clark children and for one member of the Driver 
family. Plaintiffs maintained that the Board had made no 
showing that justified a continued exclusion of these four 
children and that their personal rights under the Four­
teenth Amendment were violated (136a-138a).



8

Plaintiffs also moved for further relief (139a), object­
ing to the defendants’ administration of the pupil transfer 
provision and particularly to the notices given to parents. 
The Court considered these motions and the matter of 
teacher and personnel segregation on January 10, 1961. 
At the hearing Mr. Joseph Garrett, a member of the School 
Board staff, testified as to the operation of notification and 
transfer procedures. The notices sent to parents required 
them to indicate within three days whether they requested 
permission for their children to remain at the schools the 
children were then attending, or whether they sought admis­
sion to be “ transferred” to the newly zoned school (142a- 
145a; 149a-170a). There were 288 white children and 405 
Negro children affected by the new zoning in grades one 
through four (150a). In this group, which received no­
tices, 51 pupils— all Negroes—requested permission to 
“ transfer” to the newly zoned schools (165a).

On January 24, 1961, the Court filed an opinion and 
judgment (171a, et seq.). It found the objections to the 
notification procedure unjustified, denied the relief prayed 
in the motion for further relief, and overruled and denied 
the motion for a new trial an appropriate relief. With re­
spect to the individual requests for relief, the Court said:

With respect to the request of the four individual 
plaintiffs, Cleophus Driver, Deborah Ruth Clark, 
Henry C. Maxwell, Jr., and Benjamin Grover Max­
well, to be admitted to schools as exceptions to said 
desegregation plan, the Court is of the opinion that to 
grant such exceptions would be in effect to invite the 
destruction of the very plan which the Court has held 
is for the best interest of the school system of David­
son County. It is not a plan which is designed to deny 
the constitutional rights of anyone. It is a plan which 
is designed to effect an orderly, harmonious, and effec-



9

five transition from a racially segregated system to a 
racially nonsegregated system of schools, taking into 
account the conditions existing in this particular lo­
cality. And the Court cannot see how these individual 
plaintiffs who brought this action are or would be en­
titled to any different treatment from any other chil­
dren who attend the schools of Davidson County and 
are members of the class represented by the plain­
tiffs. (173a.)

On the question of personnel segregation, the Court denied 
relief but provided that plaintiffs could renew the request 
at a later date after the plan had been put into operation.

The plaintiffs on February 20, 1961, appealed from the 
judgments, entered November 23, 1960 and January 24, 
1961.

ARGUMENT

I.

Were appellant Negro children denied Fourteenth 
Amendment rights by refusal o f  an injunction requiring 
appellee board to admit them to white schools when the 
court below approved a grade-a-year desegregation plan 
barring appellants and other Negroes in grades above 
those covered by the plan from  an opportunity for  de­
segregation?

The Court below answered the question No.
Appellants contend it should be answered Yes.

On three occasions the court below considered and denied 
requests of minor appellants Henry C. Maxwell, Jr., Ben­
jamin G-. Maxwell, and Deborah Ruth Clark that defen­
dants be required to admit them to certain schools from



10

which they had been excluded on a racial basis. At each 
hearing it was undisputed that they would have been ad­
mitted readily if they had been white; the court below so 
found (115a-116a).

In explaining* its rulings the trial court stated in sub­
stance that its denial of individual injunctive relief was 
merely a “postponement and not a denial of relief to the 
plaintiffs (131a); that to grant exceptions to the plan would 
“ destroy the plan” (171a) or “ invite” its destruction 
(173a); and that these plaintiffs were not entitled to any 
different treatment than other members of the class repre­
sented (173a). The decision did not rest upon and the record 
does not support, any theory that these plaintiffs’ exclusion 
was justified, temporarily or permanently by any adminis­
trative obstacles to their individual admission. Eather, 
without dispute, these children could and would have been 
accommodated immediately in the white schools if they 
were white (53a-55a; 82a, 86a). The only basis suggested 
by defendants for excluding them were the Superinten­
dent’s prediction of friction, fighting, violence and blood­
shed (54a, 56a, 57a, 60a), based upon his reading about 
what occurred in Little Rock (57a, 93a-94a), and an argu­
ment that if these pupils were admitted others must have 
the same privilege (60a).

Before considering the bases for the ruling below, it is 
important to discuss the character of the rights involved 
on this appeal. Appellants’ rights to freedom from compul­
sory racial segregation stem from their fundamental rights 
not to be denied the equal protection of the laws or to be 
deprived of liberty without due process of law under the 
Fourteenth Amendment to the Constitution of the United 
States. Brown v. Board of Education, 347 U. S. 483, 74 
S. Ct. 686, 98 L. ed. 873 (1954), and 349 U. S. 294, 75 S. Ct. 
753, 99 L. ed. 1083 (1955); Cooper v. Aaron, 358 U. S. 1,



11

78 S. Ct. 1401, 3 L. ed. 2d 5 (1958). The Court said in 
Cooper at 358 U. S. 1,19 :

The right of a student not to be segregated on racial 
grounds in schools so maintained is indeed so funda­
mental and pervasive that it is embraced in the concept 
of due process of law. Bolling v. Sharpe, 347 U. S. 497, 
74 S. Ct. 693, 98 L. ed. 884.

It must be reemphasized that the right involved is a 
personal right, as was again stated in Brown, supra at 349 
U. S. 300, where the Court said:

At stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on 
a nondiscriminatory basis.

Of course the personal and present nature of Fourteenth 
Amendment rights had been established long before the 
“ separate but equal” doctrine was repudiated by Brown. 
See Sweatt v. Painter, 339 U. S. 629, 635, 70 S. Ct. 848, 94 
L. ed. 1114 (1950); Sipuel v. Board of Regents, 332 U. S. 
631, 633, 68 S. Ct. 299, 92 L. ed. 247 (1948); McCabe v. 
Atchison, T. & 8. F. R. Co., 235 U. S. 151, 161-162, 35 
S. Ct. 69, 59 L. ed. 169 (1914); Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337, 351, 59 S. Ct. 232, 83 L. ed. 208 
(1938).

The second Brown opinion provided that courts could 
allow delay, after a prompt start toward compliance, where 
this was shown to be “ necessary in the public interest and 
consistent with good faith compliance at the earliest prac­
ticable date” . But nothing in Brown, or the subsequent 
Cooper opinion, indicates that the “ personal interest of the 
plaintiffs in admission to public schools as soon as prac­
ticable on a nondiscriminatory basis”  can be disregarded 
completely in favor of a plan affording relief to other 
Negro pupils, but allowing plaintiffs no opportunity ever



12

to escape segregated schools or enter the exclusive white 
schools. Thus it is submitted that the action taken by the 
Court below in denying relief to plaintiffs is in conflict with 
the governing principles set forth in Brown.

None of the reasons set forth in the opinions of the trial 
court for denying relief can disturb this conclusion. The 
statement below that the enforcement of appellants rights 
was merely “ postponed” and not denied was and must re­
main extremely puzzling. Apparently it does not refer to 
any possibility that appellants might at some indefinite 
time in the future be granted admission as an exception to 
the plan, for this possibility seems to be completely re­
jected by the ruling that exceptions would “ destroy” the 
plan. The possibility that the Court really meant but 
neglected to say that it would consider granting exceptions 
at a later unspecified time is dispelled by the colloquy 
with counsel following the court’s oral ruling (which was 
later embodied in the written findings and conclusions).1

1 See the following in the transcript of the hearing on “ Objec­
tions to Plan” at pp. 518-519:

“Mr. Williams: And Your Honor is denying any relief to 
these individual plaintiffs?

The Court: I am not denying it. The decree should spe­
cifically include another provision, that the legal rights of all 
plaintiffs are recognized and declared but that they are en­
forced in accordance with the provisions of this plan with the 
modifications that I have made.

As I pointed out, any gradual plan is going to involve a 
postponement to some extent. You call it a denial, but (as 
the Court of Appeals pointed out in the city case) it is not 
a denial of their rights; it is a postponement of the enforce­
ment of the rights of the plaintiffs in the interest of the 
school system itself.

Mr. Williams: I would just like to inquire as to when their 
rights to an education actually will ever be enforced, if Your 
Honor please.

The Court: You understand what I have held.
Mr. Williams: Yes, sir.
The Court: Is there anything else from either party?
Mr. Williams: Plaintiffs respectfully except, if the Court 

please.”



13

The further possibility that the word “ postponed” refers 
to some opportunity that plaintiffs might have for desegre­
gation in the normal course of events under the plan, is 
plainly untenable. It is evident on the face of the plan 
that appellants will never have an opportunity to attend 
any but segregated all-Negro classes in all-Negro schools. 
It is manifest that appellants will remain in segregated 
classes, since appellants attend grades higher than those 
affected at the start of the plan, and since both the appel­
lants and the desegregation plan will move progressively 
upward one grade each year—never meeting. The pos­
sibility that appellants might in the future attend segre­
gated classes in some school which had desegregated lower 
grades, is so remote as to be unreal in the light of the racial 
option transfer provision. Under this provision the all- 
Negro schools will remain all-Negro. This we know from 
experience (in both Nashville and Davidson County, 102a, 
165a) and because a view of the realities of the community 
concerned compels the conclusion that few if any white 
pupils will elect to attend the all-Negro schools. Even if 
this remote possibility did occur appellants would still be 
excluded from schools they were entitled to attend on a 
racial basis. Neither the court below nor the defendants 
suggest this as a basis for curing the denial of relief to 
appellants. Finally, since there was no showing of valid 
administrative obtacles to the admission of these plaintiffs, 
there was no basis for even a “postponement” of their 
admission.

The conclusion of the court below that to allow excep­
tions to the plan would “destroy” it is equally ambiguous 
and confusing. If this is meant as an acceptance of defen­
dants’ contentions that desegregation in higher grades 
would cause friction and violence, and that this would de­
stroy the plan, then plainly an impermissible consideration 
was used. The irrelevance of disagreement with or hostility



14

to desegregation and the principle that constitutional rights 
may not yield to violent opposition is firmly settled. Brown 
v. Board of Education, 349 U. S. 294, 300; Cooper v. Aaron, 
358 U. S. 1, 7, 16; Buchanan v. Warley, 245 U. S. 60, 81, 
38 S. Ct. 16, 20; 62 L. ed. 149 (1918). Of course, it may 
be that the court merely meant that creating exceptions to 
to the plan would destroy its uniformity, or that an excep­
tion for these plaintiffs would require later exceptions for 
others in such numbers as to cause administrative diffi­
culties. Neither idea is very helpful in determining the 
question as issue, i.e., whether the uniformity of the plan 
must be “ destroyed” in order to protect appellants’ rights. 
It is, of course, possible that other Negroes might request 
exceptions if these were allowed. This possibility does not 
alter the fact that there were actually only a small group 
of persons before the court requesting this relief, and that 
there was no indication that their admission would cause 
any administrative difficulties in the school system. I f  the 
court found it necessary to formulate a rule for dealing 
with the jjossibility of large numbers of future applicants 
for exceptions, it is right at hand: the court can determine 
on the basis of the circumstances before it, including the 
number of applicants (if this is claimed to be relevant), 
whether the admission of the applicants would present 
valid administrative obstacles which necessitate further 
delay in the public interest—the rule of the Brown ease. In 
order to provide in advance against such a contingency the 
court need simply require the defendants to include within 
the plan a provision for equitable handling of applications 
for exceptions. Among many possibilities, a simple first- 
come first-served space available rule, would seem unexcep­
tionable. In any event, it should be clear that speculation 
as to the possibility of others asserting their rights and 
seeking exceptions in the future does not afford a basis for 
denying the constitutional rights of those presently before



15

the court. The decision below ignored the personal nature 
of plaintiffs’ rights.

Finally, the opinion below suggests that allowing excep­
tions for these plaintiffs is in effect an impermissible dis­
crimination in their favor. This becomes ironic in the 
extreme since the question involved is whether the court 
must enforce personal constitutional rights. Actually, it 
is rather usual in our system of justice to give legal pro­
tection to those who assert their rights actively. Numerous 
courts have dealt with the problem at hand and found dif­
ferent bases for granting exceptions to gradual desegrega­
tion plans, or for different treatment for pupils actively 
requesting the right to attend desegregated schools. Evans 
v. Ennis, 281 F. 2d 385 (3rd Cir. 1960); Board of Educa­
tion v. Groves, 261 F. 2d 527, 529 (4th Cir. 1958); Moore 
v. Board of Education, 252 F. 2d 291 (4th Cir. 1958), aff’g 
152 F. Supp. 114 (D. Md. 1957), cert. den. sub nom. Slade 
v. Board of Education, 357 U. S. 906 (1958); Pettit v. Board 
of Education, 184 F. Supp. 452 (D. Md. 1960); cf. Lucy v. 
Adams, 350 U. S. 1, 76 S. Ct. 33,100 L. Ed. 3 (1955). Prior 
opinions of this Court are not inconsistent. Kelley v. Board 
of Education, 270 F. 2d 209 (6th Cir. 1959) did not discuss 
this problem, and should not be regarded as ruling on it. 
Justice (then Judge) Stewart concurring in Clemons v. 
Board of Education, 228 F. 2d 853, 859-60 (6th Cir. 1956) 
clearly regarded the problem of immediate admittance of 
the plaintiffs and general desegregation of the school sys­
tem as separate matters stating that the district court’s 
decree should provide for “ immediate admittance to school 
on a non-segregated basis” as well as “ for the end of all 
racial segregation” in the schools. In Booker v. State of 
Tennessee Board of Education, 240 F. 2d 689, 693 (6th 
Cir. 1957), this Court disapproved a proposed plan because 
it involved “ a system of admission to the college which



16

does not recognize the rights of these plaintiffs.” As stated 
in the opinion at p. 694:

To deny entrance to these plaintiffs for five years, to 
place them at the bottom of the list without regard to 
the time of their application for entrance, seems to a 
majority of the court a noncompliance with the declara­
tion of the Supreme Court. Brown v. Board of Educa­
tion, supra. (Emphasis supplied)

It is further submitted that plaintiffs should be granted 
individual relief without any special showing of particular 
individual injury caused by this denial of their constitu­
tional rights. (See a discussion of this general problem in 
Black, “ The Lawfulness of the Segregation Decisions” , 69 
Yale Law J. 421, 428.) We need not and should not go 
behind the Brown decision in search for particular injury 
to these appellants caused by segregation. One serious mat­
ter deserves comment however, for it appears in the trial 
court’s findings. This is the finding, based on evidence 
offered by defendants in another connection and for an­
other purpose, which demonstrates the progressive nature 
of the harm caused by segregation very eloquently:

“ f. Negro children in the higher grade levels who have 
not previously attended desegregated schools have an 
achievement level substantially below that of white 
children, and such disproportion in achievement level 
increases in direct proportion to the grade of the child 
so that any complete desegregation, except upon a 
graduated basis, would create additional difficulties 
for the children of both races.” (126a-127a)

While these general trends are in no way related in the 
record to the situations of the individual appellants, they 
demonstrate a likelihood that further continuation of segre­
gation will increase their disadvantaged status.



17

II.

Have appellants been deprived o f  rights protected 
by the Fourteenth Amendment to the Constitution o f  
the United States by a provision o f  the board’ s desegre­
gation plan which expressly recognizes race as an ab­
solute ground for transfer between schools, and thus 
tends to perpetuate racial segregation?

The Court below answered the question No.
Appellants contend it should be answered Yes.

The plan approved by the trial court contains the fol­
lowing provision to which appellants object:

“5. The following will be regarded as some of the valid
conditions for requesting transfer:

a. When a white student wonld otherwise be re­
quired to attend a school previously serving- 
colored students only.

b. When a colored student would otherwise be 
required 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 
in that school, or in his or her grade, are of a 
different race” (70a).

This provision of the plan is identical to one in the 
Knoxville, Tennessee case now pending before this Court, 
Goss v. Board of Education of the City of Knoxville, Ten­
nessee, et al., 6th Cir. No. 14,425. It is also the same as a 
portion of the plan approved in Kelley v. Board of Educa­
tion of Nashville, 270 F. 2d 209, 228-230 (6th Cir. 1959),



18

and a provision recently held invalid in Boson v. Rippy, 
285 F. 2d 43 (5th Cir. 1960). As in Goss, supra, ap­
pellants urge that the Court reconsider this transfer pro­
vision in light of the conflicting Boson opinion and further 
arguments herein.

On its face, the plan classifies schools on a racial basis 
in terms of whether they were once all Negro or all white 
or by reference to the race of the majority of the pupils 
in the schools. Pupils also are classified racially in de­
termining eligibility for transfers. Such racial classifica­
tions must be viewed with grave suspicion for they are 
presumptively arbitrary. Korematsu v. United States, 323 
U. S. 214, 216, 65 S. Ct. 193, 89 L. ed. 194 (1944); Hira- 
bayashi v. United States, 320 U. S. 81, 100, 63 S. Ct. 1375, 
87 L. ed. 1774 (1943); Boson v. Rippy, supra. The Supreme 
Court held in Bolling v. Sharpe, 347 IT. S. 497, 74 S. Ct. 
693, 98 L. ed. 884 (1954) that racial classifications have 
no proper place in public education and that “ segregation 
is not reasonably related to any proper governmental 
objective.”

Analysis of the plan in terms of the constitutional rights 
of the individuals it touches reveals its discriminatory 
nature clearly. Consider the individual Negro pupil who 
resides in the zone of a school “ previously serving colored 
students only”—the Negro living near the “ Negro” school: 
he is compelled by the plan to remain in the “Negro” 
school, and is denied the option (given to a white pupil 
living in the same zone) to transfer out of his zone. The 
white pupil living in the “Negro” school zone is granted 
an option solely on the basis of his race. The same option 
is denied the Negro pupil in that zone solely on the basis 
of his race. This is a very evident racial discrimination. 
We turn immediately to the correlative discrimination ef-



19

feetecl by the plan, for this is offered up as justification 
for the discrimination just considered— the case of a white 
pupil living in the zone of a “white” school. This white 
pupil is denied a privilege, granted to Negroes in his zone, 
of electing to attend a school outside his zone. Again the 
plan is racially discriminatory by granting the Negro an 
option not available to a white pupil in his zone.

Proponents of the plan will argue that these correlative 
discriminations against white and Negroes “ balance out” , 
resulting in a non-discriminatory system. This is a specious 
argument, for the symmetry of inequalities created by the 
plan only can be thought to create a non-discriminatory 
system if we ignore the traditional concept of the rights 
of the individual and embrace a novel theory that the 
rights of groups or races are at issue. To hold that Negroes 
are equally treated because of the reciprocal racial dis­
crimination against others ignores the personal nature of 
Fourteenth Amendment rights.

In Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. ed. 
1161, it was argued that a racial restrictive covenant en­
forced judicially against a Negro was valid, since the 
courts would enforce similar covenants against white per­
sons. After observing that it knew of no case of such a 
covenant against white persons, the Court said at 334 
IT. S. 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 in­
dividual. The rights established are personal rights 
[Footnote citing McCabe, supra; Gaines, supra, and 
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



20

of ownership and occupancy on grounds of race or 
color. Equal protection of the laws is not achieved 
through indiscriminate imposition of inequalities.”

Constitutional rights are personal and not group rights. 
Confusion about this may he promoted by the fact that 
racial discrimination is aimed at a group and encompasses 
every individual group member, making it necessary to 
remove the racial rule and thus benefit the whole group in 
order to relieve the discrimination against the individual. 
Such an approach to school segregation cases was clearly 
intended by the Brown decision’s numerous references to 
school systems. But there is nothing in this that is novel 
and inconsistent with the theory of personal constitutional 
rights. Of course it is within the power of equity courts 
to grant complete relief even for those not before the 
Court (Porter v. Warner Holding Co., 328 U. S. 395, 66 
S. Ct. 1086, 90 L. ed. 1332 (1946)); and it is an historic 
practice of equity courts to avoid a multiplicity of suits 
(“ Pomeroy’s Equity Jurisprudence” , 5th Ed., Symons, 
1941, §§261, 261(g), 270, 273; Rule 23(a) (3), Federal Rules 
of Civil Procedure). The Fourteenth Amendment was in­
deed, “ primarily designed” to protect Negroes against 
racial discrimination (Strauder v. West Virginia, 100 IT. S. 
303, 307, 25 L. ed. 664 (1880), but the Amendment ac­
complishes this by requiring that the states deal with 
every individual in accordance with its restraints. Shelley 
v. Kraemer, supra. In this case the appellants are denied 
an option to attend schools outside their zones,1 a valued 
privilege extended on a racially discriminatory basis to 
others. The transfer provision denies equal protection 
of the laws to appellants.

1 Among the appellants, the Davis and Taylor families happen 
to be in this situation— see finding No. 5, 116a; see also 91a-92a.



21

Finally the transfer plan may he considered in terms of 
its effect on the segregated pattern in the system as a 
whole. Under the Brown and Cooper decisions the ade­
quacy of the plan must be appraised with due regard for 
the defendants’ affirmative obligation to “ devote every ef­
fort toward initiating desegregation” (358 U. S. 1, 7), 
and to develop “ arrangements pointed toward the earliest 
practicable completion of desegregation” (ibid). The pres­
ent program of continuing the assignment of students on 
the basis of race to schools designated as “ white” and 
“ colored,”  (pupils actually go directly to the same schools 
they always attended unless a “ transfer” is sought to 
move to desegregated schools; 142a-145a; 149a-17Qa) ob­
viously perpetuates discrimination in the system. By this 
option system the school authorities establish a frame­
work for parents to elect segregation and preserve it to 
a large degree. But if defendants, state officers, are for­
bidden to assign pupils on the basis of race by their own 
choice, or in obedience to the state legislature, they should 
not be allowed to do so in obedience to parents’ and pupils’ 
desires for racial segregation. Cf. Shelley v. Kraemer, 
supra; Barrotvs v. Jackson, 346 U. S. 249, 260, 73 S. Ct. 
1031, 97 L. ed. 1586 (1953). The “ interplay of govern­
mental and private action” , cf. N.A.A.C.P. v. Alabama, 
357 U. S. 449, 463, 78 S. Ct. 1163, 2 L. ed. 2d 1488 (1958), 
works inexorably to preserve segregation.

A  realistic appraisal of the plan compels the conclusion 
that its natural and intended effect is to preserve segrega­
tion. It is apparent to all concerned that few, if any, 
white pupils will voluntarily elect to attend the segregated 
“ Negro” schools in Davidson County and that these schools 
will remain all-Negro. The courts are not required to 
“ shut their eyes” and fail to see and understand matters 
known to every informed citizen of the community. Cf.



Child Labor Tax Case, 259 U. S. 20, 37, 42 S. Ct. 449, 
66 L. ed. 817 (1922); Sparrow v. Strong, 70 IT. S. (3 Wall.) 
97, 104, 18 L. ed. 49 (1866); Watts v. Indiana, 338 U. S. 
49, 52, 69 S. Ct. 1347, 93 L. ed. 1801 (1949); Davis v. 
Schnell, 81 F. Supp. 872 (S. D. Ala., 1949). The courts 
frequently use such knowledge as, for example, in the 
realistic judicial appraisal of “ freedom of choice” in the 
context of company dominated trade unions.2 * * * &

Appellants urge that the Court require the submission 
of a plan that has some reasonable likelihood of suppress­
ing racial discriminations and that is designed “ to preclude 
their revival” . Cf. United States v. Crescent Amusement 
Co., 323 U. S. 173, 188, 65 S. Ct. 254, 89 L. ed. 160 (1944); 
Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 461, 
60 S. Ct. 618, 84 L. ed. 852 (1940).

One peripheral point should be mentioned in conclusion. 
Supporters of the racial option provision urge an extreme 
hypothetical case to justify the general rule established. 
They summon up an image of a lone child unwillingly com­
pelled to remain in a hostile school where all other pupils 
are of a different race, and urge that the option is needed 
to provide for such a case. The option rule covers so much 
more ground that this is plainly untrue. Actually the option 
is so broad as to include pupils in every school or class 
that does not have an exactly equal number of pupils of

2 Cf. N.L.B.B. v. Tappan Stove Co., 174 F. 2d 1007 (6th Cir.
1949); N.L.B.B. v. Colton, 105 F. 2d 179 (6th Cir. 1939); H. J.
Heintz Co. v. N.L.B.B., 110 F. 2d 843, 847, 849 (6th Cir. 1940), 
aff’d 311 U. S. 514, 522-523; International Asso. of Machinists,
311 U. S. 72, 76, aff’g 110 F. 2d 29, 36 (D. C. Cir. 1940); N.L.B.B. 
v. Link-Belt Co., 311 U. S. 584; N.L.B.B. v. Southern Bell Tel.
& Tel. Co., 319 U. S. 50. And Cf. Texas & N.O.A. Co. v. Brother­
hood of Bg. & S. S. Clerks, 281 U. S. 548, 559-560; N.L.B.B. v. 
Pennsylvania Greyhound Lines, Inc., 303 U. S. 261; N.L.B.B. v. 
Newport News Shipbuilding & Dry Bock Co., 308 U. S. 241.



23

both, races (at any given moment). Indeed it covers every 
school that was at any time in the past attended by pupils 
of one race alone. The school board retains its usual powers 
to regulate the transfer of pupils on nonracial grounds 
based on the educational judgments of the responsible 
authorities (see paragraph 4 of plan; 70a). Even if the 
hypothetical case of the single white child in the “ Negro” 
school were to occur, this would be no reason for a Court of 
the United States to recognize race as grounds for govern­
mental action. Such a case, however, is supposititious in 
the extreme, for, for all that one knows, such a child might 
validly transfer on nonracial grounds. It is submitted that 
the racially discriminatory transfer option rule should be 
held to violate the Fourteenth Amendment.

Relief

For the foregoing reasons appellants respectfully submit 
that the judgment of the Court below should be reversed 
and that the cause should be remanded with directions to 
the trial court t o :

1. Enter an injunction restraining the appellees forth­
with from further refusing to admit the appellants to 
schools which they are qualified to attend on the basis of 
their race or color; and

2. Enter an order directing appellees to formulate and 
submit within a specified time period a new plan for the 
desegregation of the County schools, which shall provide 
for the abolition of pupil assignments and transfers based



24

on race or color, and the abolition of racial designations 
for schools.

Appellants request that the Court grant such other and 
further relief as may seem just and proper.

Of Counsel:

Respectfully submitted,

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

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood M arshall 
J ack  G reenberg 
J ames M . N abrit , III 

10 Columbus Circle 
Suite 1790 
New York 19, N. Y.

Attorneys for Plaintiff's-Appellants

N orman  C. A m aker