Goss v. Knoxville, TN Board of Education Petition for Writs of Certiorari to the US Court of Appeals for the Sixth Circuit

    Isr t h e

j^ttpran? Okmrt of %  llnxUb
October Term, 1962

J osephine Goss, et al.,
Petitioners,

—v .—

T i-ie  Board oe E ducation op the City of 
K noxville, Tennessee, et al.

H enby C. Maxwell, J r., et al.,
Petitioners,

T he County B oard of E ducation of 
Davidson County, T ennessee, et al.

PETITION FOR WRITS OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Carl A. Cowan
2212 Vine Avenue, S.E. 
Knoxville, Tennessee

Z. Alexander L ooby 
Avon N. W illiams

327 Charlotte Avenue 
Nashville 3, Tennessee

Attorneys for Petitioners



I N D E X

Citation to Opinions Below ................................   1

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

Questions Presented ..................................................  2

Constitutional Provision Involved .............................. 3

Statement ....................................................................  3
Evidence and Holdings:

PAGE

Goss case .....................................................  7
Maxwell case ........................ .......................  H

Reasons for Granting the Writs
I. With regard to the racial transfer plan, 

there is a conflict among the circuits, the 
decisions below are in conflict with princi­
ples established by this Court, and the issue 
is of widespread importance........................  15

II. The decision below in the Maxwell case deny­
ing injunctive relief to three Negro plaintiffs 
who sought admission to white schools in 
grades not reached by the plan is in conflict 
with principles established by this Court and
is of public importance ................................ 22

Conclusion............................................................................  26

Appendix A
Opinions and Judgments in Goss ease.............. la

Appendix B
Opinions and Judgments in Maxwell case ........  37a



11

Table of Cases
Board of Education v. Groves, 261 F. 2d 527 (4th

Cir. 1958) ................................................................  24
Bolling v. Sharpe, 347 U. S. 497 ................................ 19
Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) ....15,16,19, 20 
Brown v. Board of Education, 347 U. S. 483; 349

IT. S. 294 .........................................................4,19, 20, 21,
22, 23, 25

Buchanan v. Warley, 245 U. S. 60 ............................  23

Carson v. Warliek, 238 F. 2d 724 (4th Cir. 1956) ___  16
Clemons v. Board of Education, 228 F. 2d 853 (6th

Cir. 1956) ................................................................  24
Cooper v. Aaron, 358 U. S. 1 ................................20, 21, 23

Dillard v. School Board of City of Charlottesville,
Va., 4th Cir. No. 8638 .............................................  21

Dove v. Parham, 271 F. 2d 132 (8th Cir. 1959) ......  16

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ..........  24

Green v. School Board of the City of Roanoke, Va.,
----- F. 2 d ------  (4th Cir. No. 8534, May 22, 1962) 17

Hirabayashi v. United States, 320 U. S. 81 .............. 19

Jackson v. School Board of City of Lynchburg, Va.,
201 F. Supp. 620 (W. D. Va. 1961) ........................

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

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

Kelley v. Board of Education of Nashville, 270 F. 2d

PAGE

209 (6th Cir. 1959) .............................................. 10,15, 20
Korematsu v. United States, 323 U. S. 214.............. 19

24

21

17



Ill

Mannings v. Board of Public Instruction, 277 F. 2d
370 (5th Cir. 1960) .................................................. 17

Mapp y. Board of Education of City of Chattanooga,
Tenn., 203 F. Supp. 843 (E. D. Tenn. 1962) ..........  20

Marsh v. Comity School Board of Roanoke County,
Y a.,-----F. 2 d ------  (4th Cir. No. 8535, June 12,
1962) .......................................................................  17, 23

Moore v. Board of Education, 252 F. 2d 291 (4th Cir.
1958) .........................................................................  24

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) .... 17

Pettit v. Board of Education, 184 F. Supp. 452 (D.
Md. 1960) ................    24

Shelley v. Kraemer, 334 U. S. 1 ................................ 18, 23
Shuttlesworth v. Birmingham Board of Education,

162 F. Supp. 372 (N. D. Ala. 1958), aff’d on limited
grounds, 358 U. S. 101 ........................................   16

Sipuel v. Board of Regents, 332 U. S. 631 .................. 23
Sweatt v. Painter, 339 U. S. 629 ................................ 23

Taylor v. Board of Education of City of New Ro­
chelle, 191 F. Supp. 181; 195 F. Supp. 231 (S. D.
N. Y. 1961), app. dismissed 288 F. 2d 600, aff’d 294 
F. 2d 36 (2nd Cir. 1961), cert. den. 368 U. S. 940 .... 18

Thompson v. County School Board of Arlington 
County, Va., unreported (E. I). Va. March 1, 1962) 
(excerpts in 30 U. S. Law Week 2446) .................  21

Statutes and Other Authority
Federal Rules of Civil Procedure, Rule 23(a)(3) .... 4
United States Code, Title 28, §1254(1) ..................... 2
United States Code, Title 28, §§1331, 1343, 2201, 2202 4
United States Code, Title 42, §§1981, 1983 .............. 4
Southern School News, May 1962 ............................  21, 22

PAGE



I n the

dm trt af tlip luitpft States
October Term, 1962

----------------^ ---------------
J osephine Goss, et al.,

Petitioners,
—v.—

T he Board of E ducation of the City of 
K noxville, Tennessee, et al.

H enry C. Maxwell, J r., et al.,
Petitioners,

—v.—

T he County B oard of E ducation of 
Davidson County, T ennessee, et al.

PETITION FOR WRITS OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

Petitioners pray that writs of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Sixth Circuit, entered in the Goss case, on April 3, 
1962, and the judgment of that Court entered in the Maxwell 
case on April 4,1962.

Citation to Opinions Below

1. Goss case. The memorandum opinion of the United 
States District Court for the Eastern District of Tennessee 
(R. Goss 326a) reported at 186 F. Supp. 559, is printed in



2

the appendix hereto, infra p. la. The opinion of the United 
States Court of Appeals for the Sixth Circuit, printed in 
the appendix hereto, infra p. 26a, is reported in 301 F. 2d 
164 (6th Cir. 1962).

2. Maxwell case. The first Findings of Fact, Conclusions 
of Law and Judgment of the United States District Court 
for the Middle District of Tennessee (R. Maxwell 114a), 
reported at 203 F. Supp. 768, is printed in the appendix 
hereto, infra p. 37a. The second Findings of Fact, Conclu­
sions of Law and Judgment of that court (R. Maxwell 
171a) is unreported and is printed in the appendix hereto, 
infra p. 57a. The opinion of the United States Court of Ap­
peals for the Sixth Circuit, printed in the appendix hereto, 
infra p. 63a, is reported in 301 F. 2d 828 (6th Cir. 1962).

Jurisdiction

The judgment of the Court of Appeals in the Goss case 
was entered on April 3, 1962 (R. Goss, unnumbered page 
preceding opinion; appendix, infra p. 35a). The judgment 
of the Court of Appeals in the Maxwell case was entered on 
April 4, 1962 (R. Maxwell, unnumbered page preceding 
opinion; appendix, infra p. 67a). The jurisdiction of this 
Court is invoked under 28 U. S. C. §1254(1).

Questions Presented

I.

Whether petitioners, Negro school children seeking de­
segregation of the public school systems of Knoxville, 
Tennessee (Goss case), and Davidson County, Tennessee 
(.Maxwell case), are deprived of rights under the Four­
teenth Amendment by judicial approval of a provision in 
desegregation plans adopted by their local school boards,



3

which expressly recognizes race as a ground for transfer 
between schools in circumstances where such transfers op­
erate to preserve the pre-existing racially segregated sys­
tem, and which operate to restrict Negroes living in the 
zones of all-Negro schools to such schools while permitting 
white children in such areas to transfer to other schools 
solely on the basis of race.

II.

Whether the personal constitutional rights of three Negro 
plaintiffs in the Maxwell case were violated, where the courts 
below approved a desegregation plan for the school system 
which does not provide any nonsegregated education for 
these pupils at any time, and the courts refused to order 
their admission at all-white schools from which they had 
been excluded because of race, even though the school 
authorities made no showing of relevant administrative 
obstacles to their admission.

Constitutional Provision Involved

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

Statement

These two eases involve the desegregation of the public 
schools of the City of Knoxville, Tennessee, and of David­
son County, Tennessee, an area adjacent to the City of 
Nashville. This single petition for two cases is filed under 
this Court’s Rule 23(5) as the cases present an identical 
issue, e.g., the validity of identical provisions in desegrega­
tion plans adopted by the two school boards and approved 
by the courts below. The Maxwell or Davidson County case 
presents an additional issue relating to the denial of indi­
vidual injunctive relief to certain of the Negro plaintiffs.



4

Both cases were brought by Negro public school pupils 
and their parents as class actions under Buie 23(a)(3), 
F. B. C. P., against the local school authorities seeking 
injunctive and declaratory relief to obtain desegregation in 
accordance with Brown v. Board of Education, 347 U. S. 
483; 349 U. S. 294.1 In each case, jurisdiction of the District 
Court was invoked pursuant to 28 U. S. C., §§1331, 1343, 
2201 and 2202, and 42 U. S. C., §§1981 and 1983, the cases 
involving alleged denials of rights under the Fourteenth 
Amendment. In both cases the school authorities acknowl­
edged by their answers that they were continuing to operate 
racially segregated public school systems. After directions 
from the trial courts to present desegregation plans (B. 
Goss 36a; B. Maxwell 62a), both boards adopted plans to 
desegregate one school grade each year over a twelve year 
period, beginning with the first grade, in 1960 in Knoxville 
and in 1961 in Davidson County. (For text of plans see: 
B. Goss 38a; Maxwell 39a.) While there were differences 
in wording, the two plans were substantially the same. 
Both contained provisions for rezoning of schools without 
reference to race, and for a system of transfers.

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

6. The following will be regarded as some of the valid 
conditions to support requests for transfer:
a. When a white student would otherwise be re­

quired to attend a school previously serving colored 
students only;

1 The Goss case was filed December 11, 1959 in the District Court 
for the Eastern District of Tennessee (R. Goss 5a). Maxwell was 
filed September 19, 1960 in the Middle District of Tennessee 
(R. Maxwell 7a).



5

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

c. When a student would otherwise be required to 
attend a school where the majority of students of 
that school or in his or her grade are of a different 
race (R. Goss 40a).

The transfer provision adopted by Davidson County was 
the same except for one or two words not affecting the 
meaning (R. Maxwell 70a).

Plaintiffs filed written objections to both plans including 
specific objections to the above-quoted transfer rule (R. 
Goss 41a-43a; R. Maxwell 72a-76a). The District Courts 
in both cases held hearings to consider the adequacy of 
the plans at which the parties presented evidence.

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



6

approval was “subject to it being used for proper school 
administrative purposes and not for perpetuation of segre­
gation” (301 F. 2d at 168). Plaintiffs’ requests for indi­
vidual injunctive relief requiring their admission in certain 
white schools were disposed of by the statement that the 
request was moot as to some pupils who had graduated 
from school, and that after the school board complied with 
the Court of Appeals’ order to accelerate desegregation, 
this question might become moot as to the others (301 F. 
2d at 168). As indicated above, petitioners in the Goss 
case seek review of the Sixth Circuit’s decision only as to 
its approval of the racial transfer plan.

In the Maxwell case the District Court disapproved the 
school board’s twelve year plan and modified it to require 
that the first four grades be desegregated as of January 
1, 1961, with an additional grade to be desegregated each 
September thereafter until all grades were covered. The 
District Court approved the racial transfer provision and 
also refused injunctive relief to several plaintiffs who 
sought admission to white schools nearer their homes as 
exceptions to the plan in higher grades that were still segre­
gated. On plaintiffs’ appeal involving these last mentioned 
two issues, the Sixth Circuit affirmed the approval of the 
transfer plan and the denial of injunctive relief as to three 
plaintiffs who sought individual admissions. Petitioners 
seek review here of both issues decided by the Court of 
Appeals in the Maxwell case.



Evidence and Holdings: 

Goss Case

7

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

The school board president, Dr. Burkhart, testified that 
the provision for transfers based on race was adopted out 
of concern for “the orderly education of our students, both 
white and colored, in an effort to make available to the 
community the best facilities and instructional facilities 
that we can under the least possible circumstance which 
might be harmful” (R. Goss 108a); that the board thought 
it might be “harmful” to a certain number of white students 
to go to school with Negroes and also “it might be harmful 
to some of the colored students to go with white students 
if they did not want to” (R. Goss 108a). He said the basis 
for this feeling was:

The fact that we are talking about two separate races 
of people, with different physical characteristics, who 
have not in our community been very closely associated 
in many ways, and certainly not in school ways. And



8

there would be a sudden throwing together of these 
two races which are not accustomed to that sort of 
thing. Either one of them might suffer from it unless 
we took some steps to try to decrease that amount of 
suffering or that contact which might lead to that in 
case it did occur (R. Goss 108a).

The witness stated that he did not necessarily refer to 
physical harm but was more concerned with “mental harm” 
(R. Goss 109a). With regard to the expected operation of 
the transfer rule, the school board president testified that 
he did not know the mechanics as to how pupils would be 
notified of their new school zones (R. Goss 115a). He 
further testified:

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

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

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

Q. And if he applied for transfer out of his zone to 
a school which had been formerly serving white stu­
dents only, then his application would be denied under 
this plan, would it not, sir? A. Unless it were based 
on one of the other reasons that we have established 
for transfer. If transferred under one of those, it 
would be granted.

# # * # #



9

Q. But a white student to transfer out of a Negro 
school, as you have stated, would be entitled to do so, 
to have his application granted as a matter of course 
under paragraph 6, subparagraph “a” or “e” of this 
plan? A. Yes, sir (K. Goss 118a).

Another board member, Dr. Moffett, acknowledged that 
the transfer provisions “at least give the opportunity” to 
perpetuate segregation insofar as they are availed of by 
the students or parents (R. Goss 205a).

Mr. Marable, a school administrator in charge of handling 
transfer requests, stated that under the system used before 
this plan was approved, when parents request transfers he 
investigates the requests and gets the views of the princi­
pals concerned and determines if the family has a “valid 
reason” (R. Goss 264a-265a); that the school board “leaves 
that up to me,” {Ibid. ) ; that he did not know what the 
board’s written rules on transfer provided {Ibid. ) ; that 
“I just know I have handled it so many years on my own, 
and so far I haven’t stuck my neck out on it” (R. Goss 266a); 
“that each case is individual. That has to be handled that 
way. Could not have a rule” (266a); that an example of a 
“valid” reason would be where a child’s mother taught at 
a school and wanted the child with her because she had no­
where to leave it and the school had room and the principal 
agreed (R. Goss 267a); that generally transfers were 
granted for “hardship cases and convenience” (R. Goss 
267a).

After the trial court approved the plan, the school board 
adopted a resolution providing for administration of the 
provisions as follows: “All first grade pupils should either 
enroll in the elementary school within their new school zone 
or in the school which they would have previously attended” 
(R. Goss 350, 352a).



10

The District Court opinion did not discuss the transfer 
plan issue in its memorandum opinion, although during the 
trial the court indicated that it regarded itself as bound by 
the Sixth Circuit’s prior approval of an almost identical 
provision in the Nashville, Tennessee school case (R. Goss 
119a). See Kelley v. Board of Education of Nashville, 270 
F. 2d 209, 228 (6th Cir. 1959).

The Court of Appeals’ holding with respect to the transfer 
plan in the Goss case was as follows:

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



11

trial judge retains jurisdiction during the transition 
period and the supervision of this phase of the reor­
ganization may be safely left in his hands (301 F. 2d 
164,168).

Maxwell Case

With regard to the transfer plan, the Superintendent of 
Schools agreed that the effect of the rule is to permit a 
child or his parents “to choose segregation outside his zone 
but not to choose integration outside of his zone” (E. Max­
well 91a); that the provision was identical to that in the 
Nashville plan; and that as it operated in Nashville and was 
intended to operate in Davidson County, white pupils were 
not actually required to first go to the Negro schools in 
their zones and then seek transfers out, and no Negro pupils 
who did not affirmatively seek a transfer to an integrated 
school were assigned to one (E. Maxwell 91a-92a).

Dr. Eugene Weinstein, a professor at Vanderbilt Univer­
sity in Nashville, testified about a survey of the attitudes 
of Negro parents in Nashville who had a choice of whether 
to send their children to desegregated schools. He indi­
cated that the most frequent factor influencing those who 
did not send their children to white schools was an unwill­
ingness to separate several children in a family where they 
had older children not eligible for desegregation under the 
grade a year plan. He said the experience in Nashville in­
dicated “mass paper transfers of Whites back into what is 
historically the White school, of Negroes remaining in what 
is historically the Negro school” ; and that the transfer pro­
visions tend to keep the system oriented toward a segre­
gated system with token desegregation (E. Maxwell 101a- 
102a).

Six of the plaintiffs in this case reside nearer to all-Negro 
schools than to white schools (E. Maxwell, 116a-Finding 
No. 5).



12

At a further hearing held on plaintiffs’ motions following 
the initial approval of the plan with modifications, the evi­
dence indicated that under the new zones adopted under the 
plan, in the first four grades, there were 288 white children 
in the Negro school zones and 405 Negro children in the 
zones of the white schools (R. Maxwell 150a). The school 
authorities sent notices to the parents of these children ask­
ing them to indicate within three days whether they re­
quested permission for the children to stay at the school 
presentely attended or requested permission for a “trans­
fer” to the newly zoned school (R. Maxwell 142a-145a). Of 
this group, only fifty-one pupils, all of them Negroes, asked 
to attend the school in the new zones (R. Maxwell 165a).

As previously indicated the District Court approved the 
transfer feature of the plan (R. Maxwell 131a-132a). On 
appeal the Sixth Circuit also approved this provision on the 
authority of its decision in Goss (301 F. 2d at 829).

Three of the Negro plaintiffs (Henry C. Maxwell, Jr., 
Benjamin G. Maxwell and Deborah Ruth Clark) pressed 
their claims for individual injunctive relief in both courts 
below. In the trial court they sought this relief by motion 
for preliminary injunction, at the trial and by post trial 
motions for new trial and other appropriate relief. Relief 
was denied on each occasion.

The trial court found on undisputed evidence that these 
children (among others) had applied to certain white 
schools for the September 1960 term, that they were re­
fused admission solely on account of their race or color and 
that if they had been white children they would have been 
admitted to the white schools to which they applied (R. 
Maxwell 115a-116a, Finding No. 4). The Superintendent 
indicated that admission of these pupils who sought in­
dividual relief (there were six originally) would not have 
caused any great administrative problems (R. Maxwell 53a),



13

and that: “I wouldn’t say there wouldn’t be any administra­
tive problem. If we had our children and teachers ready 
to accept them, maybe there wouldn’t be too much of a prob­
lem” (R. Maxwell 54a). When asked what administrative 
problems their admission would create, the Superintendent 
mentioned only “friction” and the possibility of “bloodshed” 
or “fights” (R. Maxwell 54a, 56a~60a), based upon his read­
ing of what occurred in Little Rock (R. Maxwell 57a, 93a- 
94a). He stated that these children could be accommodated 
“as far as room is concerned” but that he couldn’t accept 
them without accepting all who might apply (R. Maxwell 
82a).

The Court denied plaintiffs’ request that they be admitted 
as exceptions to the plan stating in its second opinion dated 
January 24, 1961 (R. Maxwell 173a):

With respect to the request of the four individual 
plaintiffs, Cleophus Driver, Deborah Ruth Clark, 
Henry C. Maxwell, Jr. and Benjamin Grover Maxwell, 
to be admitted to schools as exception to said desegre­
gation plan, the Court is of the opinion that to grant 
such exceptions would be in effect to invite the destruc­
tion of the very plan which the Court has held is for the 
best interest of the school system of Davidson County. 
It is not a plan which is designed to deny the constitu­
tional rights of anyone. It is a plan which is designed 
to effect an orderly, harmonious, and effective transi­
tion from a racially segregated system to a racially 
non-segregated system of schools, taking into account 
the conditions existing in this particular locality. And 
the Court cannot see how these individual plaintiffs 
who brought this action are or would be entitled to any 
different treatment from any other children who attend 
the schools of Davidson County and are members of the 
class represented by the plaintiffs.



14

The Court of Appeals affirmed stating at 301 F. 2d 829:
The same questions were decided in our opinion in 

Goss et al. v. Board of Education of City of Knoxville, 
et ah, 6 Cir., 1962, 301 F. 2d 164.

In that case we said, on the first question: “As pre­
viously indicated, we think the Supreme Court contem­
plated that there would have to be plans for the transi­
tion and that some individual rights would have to be 
subordinated for the good of many. The smooth work­
ing of a plan could be thwarted by a multiplicity of 
suits by individuals seeking admission to grades not 
yet reached in the desegregation plan.”

In Goss, supra at 301 F. 2d 168, the Court had gone on to 
state:

We think Judge Taylor was correct in denying in­
junctive relief and as he so eloquently said: “Some 
individuals, parties to this case, will not themselves 
benefit from the transition. At a turning point in his­
tory some, by the accidents of fate, move on to the new 
order. Others, by the same fate, may not. If the transi­
tion is made successfully, these plaintiffs will have had 
a part. Moses saw the land of Judah from Mount 
Pisgah, though he himself was never to set foot there.”

See also the opinion of Novem ber 23, 1960 (R. Maxwell
131a).



15

REASONS FOR GRANTING THE WRITS

I
With regard to the racial transfer plan, there is a 

conflict among the circuits, the decisions below are in 
conflict with principles established by this Court, and 
the issue is of widespread importance.

There is a clear and direct conflict between the opinion 
of the Court of Appeals for the Fifth Circuit in Boson v. 
Rippy, 285 F. 2d 43 (5th Cir. 1960) and the opinions of the 
Sixth Circuit in the Goss and Maxwell cases as well as that 
court’s opinion in Kelley v. Board of Education of City of 
Nashville, 270 F. 2d 209 (6th Cir. 1959), cert, den. 361 U. S. 
924. In the Boson case the Fifth Circuit held that an iden­
tical transfer provision was unconstitutional, and expressly 
recognized that its holding was in conflict with the Kelley 
case, supra, stating:

We fully recognize the practicality of the argument 
contained in the opinion of the Sixth Circuit holding 
that similar provisions are not unconstitutional.

# # # # *
Nevertheless with deference to the views of the Sixth 

Circuit, it seems to us that classification according to 
race for purposes of transfer is hardly less unconstitu­
tional than such classification for purposes of original 
assignment to a public school (285 F. 2d at 48).

The Fifth Circuit went on to say that “the transfer fea­
ture should be stricken because its provisions recognize race 
as an absolute ground for transfer of students, and its ap­
plication might tend to perpetuate racial discrimination” 
(Ibid, at 47). In the Goss opinion 301 F. 2d at 168), the



16

court, after emphasizing the word “might” in the last quoted 
passage, went on to mention the fact that the transfer pro­
vision functions only on request and rests with the students 
or parents, and said that the matter might be safely left in 
the hands of the trial judge. Petitioners submit that this is 
no distinction at all between the Goss case and Boson v. 
Rippy, supra, for in Boson also the transfer provision func­
tioned only at parents’ request and the court was required 
to retain jurisdiction. The Sixth Circuit’s qualification of its 
approval of the plan affords no ascertainable safeguards. 
The Court states that its approval is “subject to its being 
used for proper school administrative purposes and not for 
perpetuation of segregation.” But the court did not indicate 
how racial transfers might be used for proper administra­
tive purposes, or how the plan could operate other than to 
perpetuate segregation. Perhaps this puzzling reference is 
to the perpetuation of complete racial segregation in the 
entire school system. In any event it is self evident that to 
the extent that the transfer rule is availed of by parents it 
will work to preserve the pre-existing pattern of segrega­
tion. Obviously transfers of white children from Negro to 
white schools, and of Negro children from white to Negro 
schools, will have this effect. It is equally clear that the 
plan does not provide for transfers on the basis of race to 
promote desegregation.

Similarly the Sixth Circuit’s comparison of this provi­
sion with pupil assignment laws which are “not inherently 
unconstitutional” but may be applied so as to “become a 
violation of constitutional rights” is not apt. The pupil 
assignment laws upheld in such cases as Sh-uttlesworth v. 
Birmingham Board of Education, 162 F. Supp. 372 (N. D. 
Ala. 1958), affirmed on limited grounds, 358 U. S. 101; Dove 
v. Parham, 271 F. 2d 132 (8th Cir. 1959), and Carson v. 
Warlick, 238 F. 2d 724 (4th Cir. 1956), conspicuously did 
not mention race as a basis for determining transfers.



17

When race has been found to be a consideration affecting 
transfers in the pupil assignment law cases, the appellate 
courts have uniformly held the pupil assignment laws to be 
invalidly applied. See for example: Norwood v. Tucker, 
287 F. 2d 798 (8th Cir. 1961); Mannings v. Board of Public 
Instruction, 277 F. 2d 370 (5th Cir. 1960); Green v. School
Board of the City of Roanoke, Va., — — F. 2d----- (4th Cir.
No. 8534, May 22, 1962); Marsh v. County School Board of
Roanoke County, V a.,-----F. 2 d ------  (4th Cir. No. 8535,
June 12,1962); Jones v. School Board of City of Alexandria, 
278 F. 2d 72 (4th Cir. 1960). The pupil assignment cases 
support the view that the racial transfer is invalid, since 
the only manner in which the rule can be invoked is on the 
basis of race.

The Sixth Circuit’s holding then furnishes no safeguards, 
or real limitations on use of the transfer rule. There is no 
indication that the Court regarded the rule as an interim 
or temporary transitional device to be discarded at a later 
date, nor is there any indication that the trial court so 
viewed it. Thus retention of jurisdiction has no particular 
significance on this point.

While the court below discussed plaintiffs’ argument that 
the rule would perpetuate segregation in the Negro schools, 
there is no discussion of plaintiffs’ argument that the rule 
discriminates against Negro pupils living near the Negro 
schools. This discrimination is very plain and simple. A 
Negro child living in the zone of an all-Negro school must 
go to that school; his white neighbors are permitted to 
transfer out of the zone and attend an all-white or pre­
dominantly white school. This valued privilege to transfer 
out of a school zone is thus conferred or denied solely on 
the basis of the race of the pupil. This is exactly the type 
of racially discriminatory application of transfer rules con­
demned in each of the pupil assignment law cases cited 
above.



18

It is interesting to compare this device with that revealed 
in Taylor v. Board of Education of City of New Rochelle, 
191 F. Snpp. 181, 185; 195 F. Supp. 231 (S. I). N. Y. 1961), 
app. dismissed 288 F. 2d 600, affirmed 294 F. 2d 36 (2nd 
Cir. 1961), cert. den. 368 TJ. S. 940, where the courts went 
even a step beyond condemning a practice similar to that 
here. In Taylor the school officials had at one time followed 
a rule allowing white children to transfer out of a Negro 
school zone, but abandoned this practice before the suit was 
brought. The Court held that the school board was never­
theless still obligated to relieve the segregated situation 
which continued because of this prior practice and a prior 
gerrymandering of zone lines. A fortiori from the Taylor 
decision, a present practice of allowing white pupils to 
transfer out of a Negro school zone on the basis of race is 
unlawful.

However, here the defendants point to the correlative 
provision of the plan which effects a similar disparity in 
treatment on a racial basis in white school zones as justify­
ing that in the Negro zones. They argue that since a white 
child in a white area cannot transfer, but a Negro there can 
transfer to a Negro school, the reciprocal discriminations 
“balance out” as it were. But this symmetrical inequality 
of treatment on a racial basis ignores the personal nature 
of the Fourteenth Amendment rights to racially nondis- 
criminatory treatment by school officials. The Negro pupil 
denied a transfer granted to his white neighbors is no less 
aggrieved by this because in other areas of the city white 
pupils are denied options given to Negroes, particularly 
where this denied “privilege” (to attend the all-Negro 
school) is one that few white persons in the community 
desire in any event.

The problem is very much like that dealt with in Shelley 
v. Kraemer, 334 U. S. 1, where it was argued that a racial



19

restrictive covenant enforced against Negroes was valid, 
since the courts would enforce similar covenants against 
white persons. After observing that it knew of no case of 
such a covenant against white persons, the Court said at 
834 U. 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 v. Atchison, T. & S. F. B. Co., 
235 U. S. 151, 161; Missouri ex rel. Gaines v. Canada, 
305 U. S. 337; Oyama v. California, 332 U. S. 633.] It 
is, therefore, no answer to these petitioners to say that 
the courts may also be induced to deny white persons 
rights of ownership and occupancy on grounds of race 
or color. Equal protection of the laws is not achieved 
through indiscriminate imposition of inequalities.

It is submitted that the ruling of the Fifth Circuit in 
Boson v. Bippy, 285 F. 2d 43, 47-50 (5th Cir. 1960) is in 
accord with this Court’s determination in Brown v. Board 
of Education, 347 U. S. 483 that racial classifications in 
public education violate the Fourteenth Amendment. Such 
racial classifications are “not reasonably related to any 
proper governmental objectives.” Bolling v. Sharpe, 347 
U. S. 497, 500.

This transfer plan violates these principles by classify­
ing schools both by reference to the race of the pupils 
previously attending them, and by reference to the race 
of the majority of the pupils in each school. It also classi­
fies pupils by race in determining their eligibility to trans­
fer. Such racial classifications are presumptively arbitrary. 
Cf. Korematsu v. United States, 323 U. S. 214, 216; Eira- 
bayashi v. United States, 320 U. S. 81, 100. The defendants



20

It is submitted that this does not satisfy the defendants’ 
obligation under Brown, supra, and Cooper v. Aaron, 358 
IT. S. 1, 7 “to devote every effort toward initiating desegre­
gation and bringing about the elimination of racial dis­
crimination in the public school system.”

The public importance of the issue presented by this 
racial transfer plan has increased as its use has become 
widespread. When the issue was first brought to this Court’s 
attention in 1959 in the Kelley case, it was a new issue and 
involved only Nashville, Tennessee. Nevertheless, at that 
time the Chief Justice, Mr. Justice Douglas and Mr. Justice 
Brennan, indicated that they:

. . . although cognizant that the District Court retained 
jurisdiction of the action during the transition, would 
grant the petition for certiorari limited to the fourth 
question: whether the provisions of paragraphs four 
and five of the plan are constitutionally invalid for the 
reason that they “explicitly recognized race as an 
absolute ground for the transfer of students between 
schools, thereby perpetuating rather than limiting 
racial discrimination” (361 XL S. 924).

Since Kelley, this plan has been adopted in numerous 
communities, and the courts have expressed divergent 
views. In addition to Boson v. Rippy, supra, and the two 
cases involved here, see Mapp v. Board of Education of 
City of Chattanooga, Tenn., 203 F. Supp. 843 (E. D. Tenn. 
1962) which held such a transfer plan invalid a few days be­
fore Goss, saying: “Reason would appear to favor the Bo­
son decision. Not only is the proposed transfer plan of ques­

have not offered any theo ry  to  ju s tify  these rac ial classifi­
cations except th a t  they  accom m odate those who desire
segregation  (R. Goss 109a).



21

tionable legality, but it is the opinion of the Court that any 
transfer plan, the express or primary purpose of which is 
to prevent or delay the adoption or implementation of the 
plan of desegregation herein developed, should not be ap­
proved. The transfer plan proposed by the Board of 
Education would at the very least greatly delay the imple­
mentation of a plan already gradual in its provisions, if not 
prevent its ever becoming fully adopted.” See also Jackson 
v. School Board of City of Lynchburg, Va., 203 F. Supp.
701, 704-706 (W. 1). Va. 1962) (held plan valid; appeal
pending); Thompson v. County School Board of Arlington
County, Va., unreported (E. D. Va. March 1, 1962) (ex­
cerpts in 30 U. S. Law Week 2446; held plan valid, refused
to retain jurisdiction, vacated injunction; appeal pending). 
The Court of Appeals for the Fourth Circuit now has this
issue under advisement in a case argued June 12, 1962,
Dillard v. School Board of City of Charlottesville, Va., 4th
Cir. No. 8638.

The racial transfer device has thus become a significant 
and effective method for limiting desegregation. Its use 
insures that the traditional all-Negro schools will remain 
all-Negro, even after every grade is covered in a grade-by­
grade plan. This has been the uniform experience with 
this device^ The transfer rule is thus a potent device for 
partially negating this Court’s decision in Brown v. Board 
of Education.

This Court has reviewed but one school desegregation 
case, on plenary hearing, since Brown, e.g., Cooper v. Aaron, 
supra, nearly four years ago. In the seven years since the 
second Brown decision school segregation litigation has 
been extensive. Progress in desegregation has been statis­
tically insignificant in some of the states where there has 
been the most litigation. The Southern School News re­
ported in May 1962 (Volume 8, No. 11, p. 1) that only 7.6%



22

of the Negro students in 13 southern states and the Dis­
trict of Columbia were in school with white pupils,2 that 
there has been an increase of only 1.6% in the past two 
years; and that the District of Columbia and six border 
states have the greatest proportion of these desegregated 
Negro students. It is submitted that a review of this case 
will enable the Court to scrutinize one of the principal 
methods being used to preserve segregation against legal 
attacks.

II.

The decision below in the Maxwell case denying in­
junctive relief to three Negro plaintiffs who sought ad­
mission to white schools in grades not reached by the 
plan is in conflict with principles established by this 
Court and is of public importance.

Petitioners, Henry C. Maxwell, Jr., Benjamin G. Maxwell 
and Deborah Buth Clark, have been admittedly denied 
admission to schools they otherwise would be entitled to 
attend under the segregation policy. The courts below 
recognized that this denial of admission infringed their 
rights under the Fourteenth Amendment, but denied relief 
on the ground that exceptions would “destroy” the grade- 
by-grade plan.

It is submitted that the courts below failed to give ade­
quate recognition to the principle stated by this Court in 
the second Brown decision, where it said:

At stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on 
a nondiscriminatory basis (349 U. S. at 300).

2 The Tennessee figure was reported at .750%, representing 1,167 
students in 17 communities. Southern School News, May 1962, 
Vol. 8, No. 11, pp. 1, 9.



23

This Court had, of course, previously emphasized the per­
sonal nature of the rights involved. Sweatt v. Painter, 339 
U. S. 629, 635; Sipuel v. Board of Regents, 332 U. S. 631, 
633; Shelley v. Kraemer, 334 U. S. 1, 22.

In terms of all of the factors mentioned by the second 
Brown decision, the admission of these plaintiffs was plainly 
shown to be practicable when their request was made. The 
Superintendent of Schools justified their exclusion only 
in terms of apprehended “friction” and “bloodshed” aris­
ing out of opposition to desegregation. These factors are 
plainly legally irrelevant in even supporting delay of plain­
tiffs’ rights, and certainly cannot justify abandoning them 
altogether. Brown v. Board of Education, 349 U. S. 294, 
300; Cooper v. Aaron, 358 U. S. 1, 7, 16; Buchanan v. 
Warley, 245 IT. S. 60, 81.

The statement by the Court of Appeals that a multiplicity 
of individual suits for such admissions could thwart the 
smooth working of the plan (301 F. 2d at 829) rests the 
decision of the case before the court on problems which 
might arise out of a possibility which has not yet occurred 
and might never occur. Here only three persons seek ex­
ceptions to the plan. If larger numbers sought similar 
privileges, a different administrative problem might be pre­
sented and could be dealt with accordingly. There was 
room for the plaintiffs in the schools they sought to attend. 
The fact that later applicants might present an overcrowd­
ing problem should not bar these applicants. The Fourth 
Circuit recently rejected such a contention in Marsh v.
County School Board of Roanoke County, V a.,----- F. 2d
——• (4th Cir. June 12, 1962), saying “the fear that appli­
cations which have not yet materialized might create a 
serious crowding problem is no reason for rejecting appli­
cants before the problem has arisen.”



24

The Third Circuit in Evans v. Ennis, 281 F. 2d 385, 393 
(3rd Cir. 1960), rejected a grade-a-year plan, stating as 
one of its reasons the fact that the plaintiffs were deprived 
“of any chance whatever of integrated education.” Evans 
v. Ennis, supra, required that pupils who actually sought
desegregation he granted relief, though it permitted com­
plete elimination of the dual system to proceed over a
longer period. Similarly the Fourth Circuit has approved
decisions granting individual litigants relief as exceptions
to general desegregation programs in Board of Education
v. Groves, 261 F. 2d 527, 529 (4th Cir. 1958); Moore v.
Board of Education, 252 F. 2d 291 (4th Cir. 1958). See
also Pettit v. Board of Education, 184 F. Supp. 452 (D. Md.
1960); and cf. Jackson v. School Board of City of Lynch­
burg, Va., 201 F. Supp. 620 (W. D. Va. 1961). Cf. also the
concurring opinion by Justice (then Judge) Stewart in
Clemons v. Board of Education, 228 F. 2d 853, 859-860
(6th Cir. 1956).

The importance of a nonsegregated education to these 
plaintiffs is indeed reemphasized by a finding in the record 
that on an overall basis Negro children who have not 
attended desegregated schools have achievement levels sub­
stantially below white children and that this disparity in 
Davidson County “increases in direct proportion to the 
grade of the child” (R. Maxwell 126a-127a). The trial court 
regarded this as support for a gradual desegregation pro­
gram. However, it obviously demonstrates that the longer 
Negro pupils are kept in segregated schools, the more their 
disadvantaged situation is aggravated.

The trial court’s suggestion (173a) that it would be dis­
crimination in favor of the plaintiffs if they were granted 
exceptions is extremely ironic, since the question involved 
is whether a court of the United States shall enforce per­
sonal constitutional rights to the equal protection of the



APPENDIX A

Opinions and Judgments in Goss Case



3a

infant plaintiffs and other negro children similarly situated 
who reside in the areas proximately surrounding said 
schools, solely because of their race or color. The defen­
dant, Board of Education, maintains and enforces a policy 
and practice of compulsory racial segregation throughout 
the Knoxville School System.

Fulton High School, in addition to providing the usual 
high school courses, affords adequate facilities to provide 
technical and vocational instruction on a modern basis by 
grades. It is used by white children residing in the City 
of Knoxville, Tennessee who desire and are qualified to 
take said technical and vocational instruction, irrespective 
of their place of residence in the City of Knoxville; but 
the facilities afforded by Fulton High School are denied by 
defendants to infant plaintiffs who desire instruction, and 
other negro children similarly situated, residing in the 
City of Knoxville, irrespective of their place of residence 
in the City of Knoxville, solely on account of their race 
or color.

The School System of Knoxville consists of 40 schools, 
total enrollment of 22,448 students, of whom 4,786 are negro 
students and 17,662 are white students, as at the close of 
school June, 1960. On that day, the Knoxville School Sys­
tem employed a total of 879 principals and teachers, 712 
of whom are white persons and 167 are negroes.

The enrollment in the first grade of the Knoxville Public 
School System was approximately 2,314 students, and 2,500 
are anticipated in the first grade for the year beginning 
1960, of whom approximately 1,900 are anticipated to be 
white students and 600 negro students. Teachers employed 
for the first grade, year 1959-1960 of the Knoxville School 
System numbered 84, of whom 63 were white persons and 
21 were negroes.

District Court Memorandum Opinion



4a

Insofar as quality of teaching is concerned, the Public 
Schools of Knoxville operated for negro students are sub­
stantially equal to the Public Schools of Knoxville operated 
for white students.

There is no difference in the salary schedules of negro 
teachers and white teachers.

The physical facilities for white and negro students are 
excellent.

Beginning with the year 1954 and continuing from time 
to time to the filing of the present suit, negro parents and 
children and other citizens have petitioned the School 
Board and appeared before the School Board and asked the 
Board to take immediate action towards desegregation of 
the Public School System.

On June 16, 1955, the Attorney General of Tennessee 
rendered an opinion to the State Commissioner of Educa­
tion, and through him to the Superintendent of Education 
for the State of Tennessee, in which he stated in substance 
that under the Tennessee Code it is the responsibility of 
each local school board to determine for itself the way in 
which it will meet the problems of desegregating the schools 
under its jurisdiction. As a result of this opinion, together 
with the decision of the United States Supreme Court in 
the Brown Case, the Board in a special meeting held on 
August 17, 1955 resolved that it would act in good faith to 
implement the constitutional principles declared in the 
Brown decision as applied to public schools, and would 
make a prompt and reasonable start towards those objec­
tives.

The Superintendent and his administrative Staff were 
instructed to develop a specific plan of action leading to the 
gradual integration of the Knoxville public schools.

D istric t C ourt M em orandum  O pinion



5a

At a special meeting held on August 17, 1955, following 
the second Brown decision of May 31, 1955, the Board re­
affirmed its policy to work towards gradual desegregation.

Two Members of the Board and two Members of the 
supervisory Staff visited the integrated public schools of 
Evansville, Indiana in July, 1955 to study desegregation in 
those schools.

On August 17,1955 the Board directed the Superintendent 
and his Staff to develop a plan of action leading to the 
gradual integration of the public schools and to that end 
the Superintendent and his Staff began holding meetings 
for the purpose of further exploring the subject. As an 
outgrowth of these meetings, the study council, composed 
of all principals, school administrators and supervisors 
(both white and negro) and the Superintendent of Schools, 
was formed for the purpose of exploring and studying plans 
and procedures in school desegregation. This study council 
held an additional series of meetings and formulated sev­
eral possible plans for desegregation, eight of which were 
presented to the Board for the Board’s study. These study 
groups continued with their meetings the remainder of 
1955 and during the year 1956.

In the meeting of May 11,1956, the Board announced that 
each of the eight plans for desegregation had been carefully 
reviewed by the Board but that the Board did not feel at 
that time that desegregation of the Knoxville public schools 
could be successfully put into operation. Three reasons 
were given for such action:

(a) Segregation should not be attempted until the school
building program is further advanced.

(b) The Members of the Board do not believe that the
people of both races are ready for a definite plan for de­
segregation and that further delay would lessen the likeli­

D istric t C ourt M em orandum  O pinion



6a

hood of unpleasant incidents which have occurred in some 
places where desegregation has been inaugurated.

(c) Before any plan for desegregation is put into effect,
further studies should be made of the subject, and plans 
further developed that the children of both races will not 
be handicapped by a radical change in their classroom life.

During the week of August 27, 1956, serious trouble de­
veloped in Anderson County, Tennessee in the integration 
of the Clinton High School. This trouble produced several 
tense hearings and trials in this Court. In September, 1957, 
a Nashville, Tennessee elementary school was bombed and 
severely damaged. On October 5,1958, Clinton High School 
in Clinton, Tennessee was bombed causing damage esti­
mated at $250,000.00 to $300,000.00.

A hearing was held by this Court on February 8, 1960 on 
plaintiffs’ motion for a preliminary injunction prohibiting 
the defendants from refusing to admit or transfer the 
infant plaintiffs to the schools to which they had applied 
for admittance on account of their race or color and for 
the declaratory relief sought in the complaint. At this 
hearing, defendant, Board of Education, agreed that it 
would submit a plan for desegregation on or before April 
8, 1960. Action on other phases of the relief sought in the 
complaint was postponed, pending the submission of the 
plan.

On April 8,1960, the Board filed the following Plan, which 
is sometimes referred to as Plan Nine:

“1. Effective with the beginning of the 1960-61 school 
year racial segregation in Grade One of the Knox­
ville Public Schools is discontinued.

2. Effective for 1961-62 school year racial segregation
shall be discontinued in Grade Two and thereafter

D istric t C ourt M em orandum  O pinion



7a

in the next higher Grade at the beginning of each 
successive school year until the Desegregation Plan 
is effected in all twelve grades.

3. Each student entering a desegregated grade in the 
Knoxville Public Schools will be permitted to attend 
the school designated for the Zone in which he or 
she legally resides, subject to regulations that may 
be necessary in particular instances.

4. A plan of school zoning or districting based upon 
the location and capacity (size) of school buildings 
and the latest enrollment studies without reference 
to race will be established for the administration of 
the first grade and other grades as hereafter de­
segregated.

5. Requests for transfer of students in desegregated 
grades from the school of their Zone to another 
school will be given full consideration and will be 
granted when made in writing by parents or guard­
ians or those acting in the position of parents, when 
good cause therefor is shown and when transfer 
is practicable, consistent with sound school admin­
istration.

6. The following will be regarded as some of the valid 
conditions to support requests for transfer:
a. When a white student would otherwise be re­

quired to attend a school previously serving col­
ored students only;

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

D istr ic t C ourt M em orandum  O pinion



8a

e. When a student would otherwise be required to
attend a school where the majority of students of
that school or in his or her grade are of a differ­
ent race.”

One Board Member voted against the Plan, stating that 
“what the Board is doing is a mistake.”

The Members of the Board are continuously changing, 
while the Members of the Administrative Staff remain con­
stant. Certain Members of the Board are elected at biennial 
election and this puts the terms of the Members on a 
staggered basis.

Plaintiffs filed seven objections to the Plan on April 
18, 1960. It is insisted by the plaintiffs in these objections 
that: (a) The Plan does not provide for elimination of 
racial segregation “with all deliberate speed” as required 
by the Fourteenth Amendment to the Constitution; (b) it 
does not take into account the five years which have elapsed 
during which the Board has failed and refused to comply 
with the Fourteenth Amendment; (c) a period of twelve 
years for the consummation of the Plan is not in the public 
interest and is not in compliance with the Fourteenth 
Amendment; (d) the defendants have not carried the burden 
of proof of showing problems related to public school ad­
ministration as specified by the Supreme Court in the second 
decision of Brown v. Board of Education (May 31, 1955), 
349 U. S. 294; (e) under the Plan, the infant plaintiffs and 
all other children attending the public schools of Knoxville 
in their class will be deprived of their right to attend a de­
segregated school as guaranteed to them by the Fourteenth 
Amendment; (f) the Plan deprives infant plaintiffs and 
those similarly situated from enrolling in Fulton Technical 
High School and other special vocational schools, summer

D istric t C ourt M em orandum  O pinion



9a

courses and kindred educational training of a specialized 
nature as to which enrollment is not based upon residence; 
and (g) Paragraph 6 of the Plan violates the due process 
clause of the Fourteenth Amendment in that said paragraph 
provides racial factors as conditions to support requests 
to transfer, and the racial factors are designed and neces­
sarily operate to perpetuate racial segregation.

A trial was held on August 8-11, 1960 on defendants’ 
motion for the adoption of the Plan and plaintiffs’ objec­
tions thereto. Substantial testimony was introduced during 
the trial, a material portion of which consisted of the read­
ing of discovery depositions of various individual defen­
dants and of a number of adult plaintiffs.

The controlling issue in the case and to which the greater 
part of the evidence was directed is :

Is the time delay provided for in the grade a year de­
segregation proposal reasonably necessary in the public 
interest and is it “consistent with good faith compliance at 
the earliest practicable date”? See Brown v. Board of Edu­
cation, supra.

It is the position of the Board that a more accelerated 
plan for desegregation would cause administrative prob­
lems of great magnitude and serious interruption in the 
operation of the Knoxville School System with resultant 
deleterious effects upon the school children of both races.

The Board maintains that the grade a year plan is a 
compliance with the “deliberate speed” concept in the light 
of the existing conditions in the Knoxville area.

As to the good faith phase of the issue, the Board insists 
that its Members, the then Superintendent of Schools and 
the Members of his Staff, began to consider the question of 
desegregation immediately following the first decision in 
the Brown Case in 1954 but that they withheld efforts to

D istric t C ourt M em orandum  O pinion



10a

perfect a plan until the second Brown decision on May 31, 
1955; that following this decision Board meetings and work­
shop meetings were held by the Board with principals of 
negro schools and white schools; and that much of the 
literature on the subject of desegregation was studied with 
the view of finding a plan that would meet the needs of the 
Knoxville community and at the same time protect and 
enforce the constitutional rights of the negro children 
attending the public schools of Knoxville.

In support of the Plan, Superintendent Johnston testified 
that he became Superintendent on June 15, 1955 and that 
on the next day he asked his Administrative Staff to come 
together to discuss the Supreme Court’s decision and steps 
that ought to be taken to study the best approach to com­
pliance with the decision; that out of the meeting grew the 
suggestion that some Members of the Staff and of the Board 
visit a city with experience in desegregation; and that the 
City of Evansville, Indiana was chosen because of its com­
parable size and because it had been operating under a 
desegregated program since 1949. He testified that two 
Members of the Board and two Members of the Staff visited 
the schools in that City and spent a day or more in the 
schools and with the superintendent.

Subsequently, on July 25, 1955, he inaugurated a program 
of inviting white principals, Members of the Board and 
Staff to discuss how best to comply with the Supreme 
Court’s decision. He attempted at the meeting to establish 
an atmosphere or environment under which these persons 
would talk freely on the subject.

A week later, they had a similar meeting with the negro 
principals, Members of the Board and Staff at which exactly 
the same matters were discussed in an atmosphere under 
which the negro principals would feel free to ask questions 
and make suggestions.

D istric t C ourt M em orandum  O pinion



11a

He testified that separate meetings were field at his own 
suggestion with the thought that participants would talk 
more freely if they met separately and that thereby he 
could better assess whether there was opposition or a good 
feeling about the whole business.

At the same time, he inaugurated a series of Staff meet­
ings for a period of an hour a day for 15 successive working 
days for the exchange of views on the problem.

On January 26, 1956, he testified that they convened a 
meeting of the negro principals and general supervisors in 
the central office to determine whether they were willing to 
participate in a series of meetings to consider the subject 
of desegregation. A similar meeting with the white prin­
cipals came a few days afterwards.

On February 1, 1956, a Staff meeting was held to survey 
the willingness of principals of both groups to join in a 
study group or workshop. On February 2, 1956, all prin­
cipals regardless of race were called for a meeting in the 
central office at which no shyness or reticence to discuss 
the subject appeared. He commented that for 32 years to 
his personal knowledge negro principals and white princi­
pals had met together in regular meetings.

He testified that a series of workshop meetings were 
developed to explore different plans and that out of these 
meetings there evolved eight suggestions to be submitted 
to the Board of Education without recommendation which 
were the result of the studies of the principals of both races 
and of the Staff.

Subsequently, in January, 1957 at a meeting, he requested 
the principals of both races and the supervisors to meet 
with him to further discuss the subject. At that meeting he 
indicated that he would like personally to come to the 
schools and sit down with their faculties and talk with the

D istric t C ourt M em orandum  O pinion



12a

teachers to see how they felt on the subject because he felt 
that “the burden of making that plan successful . . . would 
be on the shoulders of the teachers who work closely with 
children and with parents.” Following this meeting, he 
testified that he started going to schools at the invitation 
of the principals and that he attended 12 to 15 such faculty 
meetings. It was his purpose to discover through these 
informal meetings whether there were members of the 
faculties who opposed any form of desegregation. He 
wanted to determine whether there were pockets of re­
sistance or whether a favorable climate for compliance 
existed among the teachers. These meetings continued 
through the school year 1957. By Fall, he testified, the 
invitations seemed to slow down and that he seemed to de­
tect a feeling amongst the negro and white principals which 
did not exist before. He pointed out that there had been 
dynamiting and other difficulties around the Knoxville 
area; and that trouble had arisen in Nashville and Clinton.

Superintendent Johnston stated that violence occasioned 
by desegregation in neighboring cities caused us to reflect 
a little more on how it will affect us and made us more 
conscious of what might happen here. He pointed out that 
no child could get an education operating under a feeling 
of fear or tension or emotional unrest and that every day 
a child loses from its normal educational program is prac­
tically gone forever and will never be completely regained; 
that order is the first law in the classroom and that an 
educational program must have order if children were 
going to learn. He said: “We were concerned with that.”

At the same time, he noted that the School Board was 
engaged in an extensive building program which involved 
both Staff and Board and which was heavily time con­
suming; that Board and Staff Members examined blue­

D istric t C ourt M em orandum  O pinion



13a

prints and drawings of the architects minutely and that they 
made innumerable visits to the buildings when they were 
under construction and that before a building was accepted 
it was the duty of the Board to go through it, inspect the 
rooms, corridors and facilities in the company of the archi­
tect and of the representative of the contractor.

This was a massive building program carried out under 
Bond Referendums of 1946 and 1954 and involved nearly 
eight million dollars of new construction and remodeling in 
both white and colored schools.

In implementation of the Plan filed on April 8, 1960, the 
Superintendent testified that he instructed his Staff to be­
gin work on a zoning map which was approved at a meeting 
of the Board on August 6, 1960, just two days before the 
hearings began. He testified that he instructed his Staff 
that in the preparation of the map there would be no 
maneuvering or gerrymandering, that the re-zoning and 
re-establishing of school zones must be based on enrollment 
studies and on the size and capacity of the buildings. The 
work was in charge of Mr. Frank Marable, Supervisor of 
Child Personnel, whose duty it is to check on attendance, 
school zones and the movement of people.

On cross-examination, he testified that in preparing the 
map, efforts were made through the pre-school round-up 
program and estimates of principals to get estimates of 
the number of children that would be affected. This zoning- 
plan was confined to the elementary schools and did not 
include the secondary schools.

Under detailed cross-examination, Mr. Johnston pointed 
out that small groups or pockets of negro homes were 
scattered throughout the Knoxville City School System in 
contrast to major concentrations of negro citizens; that the 
zone boundaries were often dictated by artificial barriers

D istric t C ourt M em orandum  O pinion



14a

like heavily traveled streets and also by the size and capaci­
ties of school buildings.

In response to a question that some capacity was pre­
served at Park Lowry for transfers which were authorized 
under the Plan, he testified that he had no way of knowing 
who was going to ask for a transfer and that he only knew 
that under the Plan white students and negro students 
would be treated alike.

He testified categorically that no member of his Staff 
in working on the map had ever operated deliberately to 
cut out negro children; and that they tried to work the 
thing out on a fair basis, depending on the size of the build­
ing, shifting population and enrollment.

With reference to the fact that eight plans were originally 
developed for submission to the Board and that the Plan 
which was finally adopted involved only a grade a year 
desegregation, he testified that the Plan adopted was based 
on the experience around us and studies of the general 
situation of desegregation; that it was felt that this plan 
could be introduced in the City of Knoxville with the least 
disturbance to the over-all educational program; and that 
it would be accepted by the majority of citizens with less 
tension and less emotional excitement than any other plans 
that had been studied.

He reiterated that the Knoxville School System had been 
in existence since 1870 and that desegregation would not 
be easy; that it was the goal to achieve desegregation and 
at the same time maintain an orderly decorum or environ­
ment under which all children could continue to go to 
school day by day free from tension and free from fear. 
He repeated that order is the first rule of a classroom.

In presenting the grade a year plan to the Board, the 
Staff made seven observations in favor of the plan. The

D istric t C ourt M em orandum  O pinion



15a

first was that it appeared to meet the requirements of the 
Supreme Court decision and of the laws of the State which 
placed the burden or responsibility on local boards for de­
segregation and for the assignment and placement of 
students. Second, the Plan did not limit the speed with 
which it could be implemented. Third, it provided for 
gradual implementation until the complex problems of zon­
ing, transfer and assignments of students could be ad­
justed in the light of experience. Fourth, it had the ad­
vantage of numerous other plans as a background for its 
adoption. Fifth, the main features of the Plan have been 
upheld by higher courts. Sixth, the Plan lessened the 
opportunity for developing prejudices. Seventh, it mini­
mized the possibility of administrative problems that could 
be of such complexity and magnitude as to seriously under­
mine and impair the total educational program of the City.

Finally, he emphasized the adaptability of small children 
and that they do not have the prejudices of older children 
or grown people and could be fitted into the work easier 
than older children. He felt that the gradual plan would 
enable the school system to continue a fine educational pro­
gram with less tension, less fear and less emotional dis­
turbances than a plan which rushed into a broader field of 
desegregation. He felt that the gradual plan would have 
the sympathetic understanding of the great majority of 
the citizens of the City. He pointed out the importance of 
this in going before the City Council on behalf of school 
budgets with which to operate the schools; that the School 
System had to have the sentiment of the people with it 
because it involves budgets, their attitude towards refer- 
endums for new schools and new buildings, etc.

With reference to evidence that there had already been 
desegregation of ball parks, public libraries, buses and air­

D istr ic t C ourt M em orandum  O pinion



16a

port restaurants, etc. in and around Knoxville and that 
this would seem to indicate that a speedier plan of desegre­
gation could be inaugurated, Superintendent Johnston 
pointed out that under the compulsory attendance law, 
children are compelled to go to school for a period of seven 
hours a day and that he knew of no law that compelled them 
or any adult to go to a ball park, the library or airport 
restaurants. He pointed out that those were optional mat­
ters, but that under the school law children were required 
to go to school.

In the course of his testimony, Superintendent Johnston 
testified to certain achievement tests given all children in 
the sixth grade in the Knoxville schools. His testimony was 
that as a result of these tests it appeared that the achieve­
ment levels of students from white schools were somewhat 
above the national norm and that the student level from 
colored schools were substantially below the national norm. 
This testimony was objected to by the plaintiffs on the 
ground that the results of the tests were hearsay. The 
Court recognized this objection, but admitted the testimony 
for such bearing as it might have on the good faith of the 
Board in utilizing the grade a year plan.

In his deposition, Superintendent Johnston was asked 
about the industrial courses given at Austin High School, 
the colored school, and at Fulton High School, the white 
technical school. It appeared from his testimony that 
Fulton High gives a course in television, a course in ad­
vanced electronics, ones in air conditioning, refrigeration, 
commercial art, commercial photography, distributive edu­
cation, drafting, machine shop, printing and sheet metal 
which are not offered at Austin High School. Certain 
courses, he testified, such as brick masonry, tailoring, etc., 
are offered at Austin which are not offered at Fulton.

D istric t C ourt M em orandum  O pinion



17a

Colored students are not admitted to these courses at 
the present time at Fulton High School because of the 
segregated schools.

Generally, the testimony of Superintendent Johnston was 
that the school facilities and teaching level at both the 
colored and white schools are equal. He pointed out that 
the colored teachers are paid at the same salary level as 
those in the white schools and that the work done is 
equivalent. These facts were also stipulated.

The conclusion the Court draws from this evidence is 
that students including plaintiffs now in school who would 
not, if Plan Nine were adopted, be permitted to go to an 
integrated school, would still have equal opportunities for 
an education in the tine colored schools with their excellent 
teaching staffs.

This conclusion is not true of the special technical courses 
offered at the Fulton High School. Under Plan Nine 
colored students now in school and desiring those courses 
would be barred from taking those courses. They would 
have to complete their scholastic education without the 
opportunity of taking these courses. Superintendent John­
ston testified that he had talked to the teachers in the Fulton 
High School and they were of the opinion that to admit 
colored students to these courses would cause trouble and 
disciplinary problems, an opinion in which he joined.

Nevertheless, the Court feels that despite the great 
merit of Plan Nine, it is deficient in that it precludes colored 
students now in school from ever participating in these 
specialized courses.

Dr. Burkhart, Chairman of the Board since 1958, was of 
the opinion that complete desegregation would disrupt the 
orderly process of education in Knoxville and that the 
children of both races would be materially affected thereby.

D istric t C ourt M em orandum  O pinion



18a

This opinion was based in part on the attitude of the great 
majority of the citizens of the Knoxville area who feel that 
the citizenship is not prepared at this time to accept any­
thing except gradual desegregation. He was further of the 
opinion that complete desegregation would cause violence 
in the community.

This Court recognizes that the Supreme Court stated in 
substance in Cooper v. Aaron, 358 U. S. 1, that opposition 
to desegregation was not alone a sufficient reason to post­
pone desegregation. But, the Court also stated in substance 
in Brown v. Board of Education, 347 U. S. 483 that one of 
the factors that the trial court should consider in resolving 
the question of immediate and complete desegregation or 
gradual and complete desegregation is the interest of the 
people who are affected in the community.

Hr. Burkhart was of the opinion that gradual desegrega­
tion would be best for the students and for the community. 
He felt that an abrupt change would affect the teachers and 
the students of both races and would create serious ad­
ministrative problems.

Dr. Moffett, another Member of the Board, felt that Plan 
Nine was the best plan for the Knoxville schools and gave 
three principal reasons to support his belief, which are in 
substance as follows:

(a) First grade eliminates any educational advantages 
or disadvantages.

(b) The present Plan is more receptive to constituents.
(c) The present Plan is better for teachers and other 

personnel of the schools.
Andrew Johnson, a well-known lawyer of Knoxville, 

served as a Member of the Board from January 1, 1954

D istric t C ourt M em orandum  O pinion



19a

through December 31, 1957. He explained in detail the 
careful study made by Members of the Board and school 
personnel during the period that he was a Board Member.

A building program involving some eight million dollars 
was inaugurated and extensively carried on while he served 
as a Member of the Board. This program consumed con­
siderable time of Board Members.

A series of meetings were held by Board Members with 
the Superintendent and his Staff during the year 1955 when 
desegregation matters were discussed. The initial attitude 
of the Board was to comply with the law with respect to 
desegregation as declared by the Supreme Court in the 
Brown Case. In 1954, the Members of the Board felt that 
desegregation could be effectuated without too many prob­
lems because the citizenship at that time appeared to be 
passive. Later, the Board Members began to hear rumbling 
of the disturbances from citizens and when actual violence 
began in Clinton, it caused the Board to go slow. This 
violence gave rise to a consciousness of the Members of the 
Board of the dangers of making an unwise step. The Board 
was delayed by circumstances over which it had no control.

The opinion of the public influenced the actions of the 
Board. The Board was looking at local conditions. Threats 
of violence were made if desegregation were inaugurated. 
On June 10, 1957 some fifteen citizens appeared before the 
Court and some of them suggested that the Board Members 
resign rather than institute desegregation. There was real 
danger.

One John Kasper appeared before the Board that night. 
Mr. Johnson received a number of telephone threats. The 
Members of the Board were afraid of physical violence 
against the colored children. At that time, the colored 
principals of the schools felt that desegregation should be

D istric t C ourt M em orandum  O pinion



20a

given thorough consideration, but that it should not start 
immediately.

The dynamiting and other violence in Clinton and Nash­
ville were other causes for the Board moving towards de­
segregation more slowly.

Mr. Marable is Supervisor of Child Personnel. He 
handles transfers. He stated that the schools were over­
crowded in some sections. Transfers were comparatively 
easy under the old plan although they are considered care­
fully. If the reasons are good, a transfer is made. It is an 
administrative matter. Primarily, a child is expected to go 
to school in the zone of his residence.

Plaintiffs, Mrs. Barber, and Messrs. Bobinson, Sr., Ward, 
Graves, Winton, Sr. and Goss, testified to having made 
applications for admittance of their minor children to white 
schools, all as shown in the complaint and the stipulation, 
and that they were denied admittance solely because of their 
race or color. Each of these plaintiffs gave a reason why 
he wanted his infant child to attend a white school, one of 
the reasons being that he or she lived near the white school.

This Court is of the opinion and finds that the foregoing 
evidence shows beyond question good faith on the part of 
the Board in making an honest effort to find the solution of 
a very troublesome problem, namely, a plan of desegrega­
tion that would best fit the needs of the Knoxville area 
and at the same time implement the decision of the Supreme 
Court in the Brown Case. The teaching of that case, as 
well as that of the eases of Cooper v. Aaron, supra and 
Kelley v. Board of Education (C. A. 6), 270 F. 2d 209, is 
that the problem of desegregation must be solved in ac­
cordance with the exigencies of the case and that the inter­
est of the school children of both races, the interest of 
the school personnel and of the community involved are

D istric t C ourt M em orandum  O pinion



21a

the prime factors in resolving the issue; that local school 
problems differ and what would be a reasonable time to 
integrate in one community might be unreasonable in an­
other community; that the question of speed is to be decided 
with respect to existing local conditions; that the operation 
of the public schools is the business of the local School 
Board and that the courts should not interfere with such 
operation unless it is necessary for the enforcement of 
constitutional rights; and that the Court should not sub­
stitute its judgment for that of the local School Board in 
the promulgation of plans of desegregation and that if the 
Board has acted in good faith its action should not be set 
aside so long as such action is consistent with the eventual 
establishment of a non-discriminatory school system at the 
earliest possible date consistent with the interest of the 
school children, school personnel and the community.

The Court finds that the Plan submitted by the Board is 
not only supported by the preponderance of the evidence, 
but by all of the evidence, with one exception. "With refer­
ence to the technical courses offered in the Fulton High 
School to which colored students have no access, it directs 
that the defendants in this cause restudy the problem there 
presented and present a plan within a reasonable time which 
will give the colored students who desire these technical 
courses an opportunity to take them.

This Court is concerned—gravely concerned—with the 
incidents of unrest and violence which have attended the 
desegregation of schools in nearby communities. They have 
not only been made matters of evidence in this case, but 
some are matters with which this Court has had to deal, and 
of which it takes judicial notice. These incidents have been 
characterized by the bombing of homes and of school build­
ings and by acts of individual terrorism which have de­

D istric t C ourt M em orandum  O pinion



22a

stroyed the orderly atmosphere in which good schooling 
can thrive. They have revealed pockets of hate and lawless­
ness which are overshadowing imponderables in this case.

Glowing pictures of what may be, or ought to be, char­
acterize the partisanship of those not called upon to make 
decisions. It is easy to ignore, and many of these partisans 
have ignored, considerations which weigh so heavily upon 
the Court. Some who might have taken responsibility have, 
despite the admonitions of the Supreme Court in the Brown 
and other cases, chosen not to assume it.

As the case has developed, the ultimate responsibility for 
decision rests with the Court. It alone must deal with the 
realities—realities with which it has had acrid experience.

If it decides wrongly, the transition towards the goal of a 
harmonious and unified school system—a goal to which all 
parties to this case subscribe—will receive an untold set­
back. If it decides rightly, there may well be smooth and 
steady progress toward full integration. Some individuals, 
parties to this case, will not themselves benefit from the 
transition. At a turning point in history some, by the ac­
cidents of fate, move on to the new order. Others, by the 
same fate, may not. If the transition is made successfully, 
these plaintiffs will have had a part. Moses saw the land 
of Judah from Mount Pisgah, though he himself was never 
to set foot there.

Perhaps the transition could be faster. Who can know? 
When a bridge is built or modified, engineers add a factor 
of safety far beyond the expected load. The analogy breaks 
down. In altering a school system, no one knows the load; 
there is no known factor of safety. Traditions, ways of 
thinking, aspirations, human emotions—all are involved. 
Emotions are sometimes stable, sometimes explosive. This 
Court has had experience with both. It rather anticipates

D istric t C ourt M em orandum  O pinion



23a

that the emotions of the people of Knoxville are under 
control. It does not know. It would have had the same 
expectation of another community. It was wrong.

All things considered, Plan Nine seems to offer more 
safety and more assurance for an orderly progression 
toward a fully unified school system. Under the evidence, 
there is less danger of disorder—more hope of steady prog­
ress. When the risks of which this Court is cognizant are 
taken into account, Plan Nine seems to meet the tests laid 
down by the Supreme Court. The Plan, with the reservation 
noted, is approved.

Present order in accordance with views herein stated.

R obt. L. Taylor 
United States District Judge

D istric t C ourt M em orandum  O pinion



24a

Filed: August 26,1960

This cause came on to be heard on August 8, 9, 10 and 11, 
1960, upon the entire record, upon stipulations, oral testi­
mony, depositions and exhibits, without the intervention 
of a jury, and upon briefs and argument of counsel, pur­
suant to which the Court on August 19, 1960, filed its 
Memorandum, all of which are herein incorporated by 
reference.

It is, therefore, o r d e r e d , a d j u d g e d  a n d  d e c r e e d , as follows:
1. That the Plan of The Board of Education of the City 

of Knoxville, approved by said Board on April 4, 1960, and 
presented to this Court on April 8, 1960, be approved with 
the single exception that the defendants in this cause are 
hereby directed to restudy the problem presented with ref­
erence to the technical and vocational courses offered in 
the Fulton High School, to which colored students have no 
access, and present a plan within a reasonable time which 
will give the colored students who desire these technical and 
vocational courses an opportunity to take them. The de­
fendant Board of Education of the City of Knoxville, Ten­
nessee is hereby ordered to put said Plan as approved by 
this Court into effect in accordance with the tenor thereof.

2. That the prayer of the plaintiffs for injunctive relief 
and their motion for preliminary injunction be, and the 
same hereby are, denied.

3. That the jurisdiction of the action is retained during 
the period of transition.

J u d g m e n t  o f  District C o u r t



25a

Judgment of District Court

To the foregoing actions of the Court, as contained in 
Paragraphs numbers 1. and 2. hereinabove, the plaintiffs 
except.

R obt. L. Taylor 
United States District Judge



26a

O p i n i o n  o f  S i x t h  C ircuit

No. 14425
UNITED STATES COURT OF APPEALS 

F or the Sixth Circuit

J osephine Goss and T homas A. Goss, Infants by 
R alph Goss, Their Father and Next Friend, et al.,

Appellants,
—v.—

T he Board oe E ducation of the City of K noxville, 
T ennessee, a Body Corporate or Continuous Legal 
Entity, c/o D r . J ohn H. B urkhart, President, et ah,

Appellees.

APPEAL FROM T H E  U N ITED  STATES DISTRICT COURT FOR T H E 

EASTERN DISTRICT OF TEN N ESSEE, NO RTH ERN  DIVISION.

Decided April 3, 1962.

Before: Cecil, W eick and O’Sullivan, Circuit Judges.
Cecil, Circuit Judge. This cause is before the Court 

on appeal from an order of the United States District 
Court for the Eastern District of Tennessee, Northern 
Division, concerning the desegregation of the school system 
of the city of Knoxville, Tennessee.

The appellants were plaintiffs in the District Court and 
are all Negro citizens of the United States and state of 
Tennessee, and residents of the city of Knoxville. They



27a

are children who were attending the public schools of 
Knoxville, at the time this action was begun, and their 
parents or guardians. The action was brought by the 
named plaintiffs for themselves, individually, and on behalf 
of all persons resident of Knoxville, similarly situated.

The appellees were defendants in the District Court and 
are members of the school board of the city of Knoxville, 
together with the superintendent of schools and other 
administrative officers of the Knoxville school system. 
They are sued in their official capacities and as individuals.

The parties will be referred to hereinafter, respectively, 
as plaintiffs and defendants.

The complaint was filed on December 11, 1959, and 
invoked jurisdiction by virtue of sections 1331, 1343, 2201 
and 2202, Title 28 U. S. C. and sections 1981 and 1983, 
Title 42 U. S. C. By their complaint, the plaintiffs seek 
orders restraining the defendants from refusing to admit 
the named plaintiffs to certain schools operated by them as 
so-called “white” schools, on account of plaintiffs’ race or 
color; for an order declaring the custom, policy, practice 
or usage of excluding plaintiffs and other persons similarly 
situated from any schools of the city of Knoxville solely 
because of race, pursuant to certain constitutional and 
statutory provisions of the state of Tennessee, to be uncon­
stitutional and void; for a permanent injunction restrain­
ing the defendants from operating their schools on a 
biracial basis, and in addition thereto for an order requir­
ing the defendants to present to the Court a plan “designed 
to bring about good faith compliance with the decision of 
the Supreme Court of the United States in Brown v. Board, 
of Education, 347 U. S. 483, at the earliest practicable 
date throughout the Public School System of the City of 
Knoxville.”

O pinion o f S ix th  C ircuit



O pinion o f S ix th  C ircuit

The defendants in their answer admit that the schools 
of Knoxville, at the time this action was begun, were oper­
ated on the basis of separate schools for white children 
and separate schools for Negro children. They say this 
was in accordance with constitutional and statutory pro­
visions of the state of Tennessee (Art. 11, Sec. 12. Tenn. 
Const., Secs. 49-1005, 49-1107, and 49-3701, Tenn. Code); 
that they did not feel that they could change this system 
without the compulsion of law; that the schools for Negroes 
were excellent and that there was no discrimination against 
them in the type of education they received; that while 
there were wThite teachers for white children and Negro 
teachers for Negro children, they were paid on the same 
basis; that since the Brown decision, they have studied 
plans of integration, but that up until this time delay 
has been well advised. They say they “owe no apologies 
to anyone, and make none.”

After the complaint wTas filed, the trial judge gave the 
defendants until April 8, 1960, to submit a plan of inte­
gration. A plan was submitted in accordance with this 
order and the principal question now before this Court 
is whether that plan is adequate to comply with the deci­
sions of the Supreme Court.

The plan called “Plan No. 9” provides for school zoning 
based upon location and capacity of school buildings and 
admission to schools by reason of residence in a zone with­
out reference to race; discontinuance of racial segregation 
in steps of one grade a year, beginning with the first grade, 
effective with the school year, beginning 1960-61, and a 
system of transfers in which the following will be recog­
nized as some of the valid conditions for transfer: “a. 
When a white student would otherwise be required to 
attend a school previously serving colored students only;



29a

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 of that school or 
in his or her grade are of a different race.”

The plaintiffs objected to the plan for the reasons that, 
considering the five years that had already elapsed since 
the Brown decision, twelve years was too long a period to 
accomplish complete desegregation; that the board had not 
shown that the delay was necessitated by any administra­
tive problems enumerated by the Court in the Brown deci­
sion; that it deprived Negro students already enrolled in 
school of an unsegregated education; that it deprived 
Negro students of an opportunity for education in certain 
vocational schools and summer courses, and that the trans­
fer plan would operate to perpetuate segregation of the 
races in the public school system.

The case was tried to the court and a judgment entered 
on August 26, 1960. By this judgment, the court denied 
injunctive relief to the plaintiffs and approved the plan 
as submitted, except “that the defendants in this cause 
are hereby directed to restudy the problem presented with 
reference to the technical and vocational courses offered 
in the Fulton High School, to which colored students have 
no access, and present a plan within a reasonable time 
which will give the colored students who desire these 
technical and vocational courses an opportunity to take 
them.” It was further ordered that the board should put 
the plan as approved into effect.

On May 17, 1954, the Supreme Court decided, in Brown 
v. Board of Education, 347 U. S. 483, 495 (known as the 
first Brown case) “that in the field of public education 
the doctrine of ‘separate but equal’ has no place. Separate

O pinion o f S ix th  C ircuit



30a

educational facilities are inherently unequal.” The Court 
held that segregation of Negro and white children for 
school purposes on a racial basis deprived Negro children 
of equal protection of the laws guaranteed by the Four­
teenth Amendment to the Constitution of the United States. 
Thereafter, the maintenance of “Negro” schools and 
“white” schools was a violation of the United States Con­
stitution.

The Court, according to the second Brown decision, 349 
U. S. 294, realized that the transition required by its 
first opinion, from a custom and practice of so long stand­
ing, could not be easily accomplished and that admin­
istrative problems would be encountered which would 
prevent immediate abandonment of the biracial systems 
then in effect.

The court said, at p. 299: “Full implementation of these 
constitutional principles may require solution of varied 
local school problems.” And at p. 300: “In fashioning 
and effectuating the decrees, the courts will be guided by 
equitable principles.” . . . “While giving weight to these 
public and private considerations, the courts will require 
that the defendants make a prompt and reasonable start 
toward full compliance with our May 17, 1954 ruling.” 
And finally, the classic admonition that the district courts 
should make such orders as were necessary to admit all 
students “to public schools on a racially nondiscriminatory 
basis with all deliberate speed.”

It was thereby recognized that some planning would 
have to be done to adapt a particular local system to the 
new method of operation and that in the process the rights 
of some individuals would have to be subordinated to the 
common good of posterity. In Boson v. Rippy, 285 F. 2d 
43, the Fifth Circuit reversed the District Court when it

O pinion o f S ix th  C ircuit



31a

ordered immediate en masse desegregation, and instructed 
it to require the board to submit a plan.

We appreciate that in such a transition, as is here 
involved, emotions are deeply stirred and sensitive feelings 
touched. But these must give way to the mandates of the 
Supreme Court. As that Court said in Cooper v. Aaron, 
358 U. S. 1, 16, “law and order are not here to be pre­
served by depriving the Negro children of their constitu­
tional rights.”

It has been nearly eight years since the first Brown 
decision and under the plan before us the first and second 
grades are now integrated. The evidence does not indicate 
that the board is confronted with the type of administra­
tive problems contemplated by the Supreme Court in the 
second Brown decision. That the operation of schools on 
a racially segregated basis is a violation of the Fourteenth 
Amendment and that the constitutional and statutory 
requirements of the state of Tennessee prohibiting the 
mixture of races in schools cannot be enforced are no 
longer debatable or litigable questions. This has been ob­
vious and evident since May, 1954.

The position of the board that it would continue to 
operate under these unenforcible laws, until compelled by 
law to do otherwise, does not commend itself to the Court, 
for the acceptance of a plan that provides for a minimum 
degree of desegregation. In the second Brown case, the 
Court said, at p. 300: “The burden rests upon the defen­
dants to establish that such time is necessary in the public 
interest and is consistent with good faith compliance at 
the earliest practicable date.” In our judgment, the defen­
dants have not sustained this burden. We do not think 
that the twelve-year plan of desegregation adopted at this 
late date meets either the spirit or specific requirements 
of the decisions of the Supreme Court.

O pinion o f S ix th  C ircuit



32a

The transfer feature of the plan comes under sharp 
criticism of the plaintiffs. They claim that the operation 
of a such a plan will perpetuate segregation. We do not 
think the transfer provision is in and of itself illegal or 
unconstitutional. It is the use and application of it that 
may become a violation of constitutional rights. It is in 
the same category as the pupil assignment laws. They 
are not inherently unconstitutional. Shuttlesworth v. 
Birmingham Board of Education, 162 F. Supp. 372, D. C. 
N. D. Ala., affirmed, 358 U. S. 101. They may serve as 
an aid to proper school administration. A similar transfer 
plan was approved by this Court in Kelly v. Board of Edu­
cation of City of Nashville, 270 F. 2d 209, C. A. 6, cert, 
denied, 361 U. S. 924. We adhere to our former ruling 
with the admonition to the board that it cannot use this 
as a means to perpetuate segregation. In Boson v. Bippy, 
supra, the court said, at p. 46, the transfer feature “should 
be stricken because its provisions recognize race as an 
absolute ground for the transfer of students, and its appli­
cation might tend to perpetuate racial discrimination.” 
(Emphasis added.) This transfer provision functions only 
on request and rests with the students or their parents 
and not with the board. The trial judge retains jurisdic­
tion during the transition period and the supervision of 
this phase of the reorganization may be safely left in his 
hands.

Some of the named plaintiffs seek orders restraining 
the defendants from refusing them admission to certain 
white schools. The district judge denied the requests for 
such orders. The questions presented by this phase of the 
ease are moot as to some of the plaintiffs for the reason 
that they have now graduated from high school. When 
the defendants have complied with the mandate of this

O pinion o f S ix th  C ircuit



33a

Court to submit an accelerated plan, looking to the reorgan­
ization of the Knoxville schools on a racially nondiscrim- 
inatory basis, the questions of individual admission to 
so-called “white” schools may be moot as to some of the 
other plaintiffs now in elementary schools.

Judge Taylor wisely withheld aproval of the plan 
insofar as it denied Negro students the right to take the 
technical and vocational courses offered at Fulton High 
School. The board should, as he suggested, present within 
a reasonable time a plan that would permit all Negro 
students who desire and are qualified to have an oppor­
tunity to take the special courses of this high school.

As previously indicated, we think the Supreme Court 
contemplated that there would have to be plans for the 
transition and that some individual rights would have to 
be subordinated for the good of many. The smooth working 
of a plan could be thwarted by a multiplicity of suits by 
individuals seeking admission to grades not yet reached in 
the desegregation plan.

We think Judge Taylor was correct in denying injunctive 
relief and as he so eloquently said: “Some individuals, 
parties to this case, will not themselves benefit from the 
transition. At a turning point in history some, by the 
accidents of fate, move on to the new order. Others, by the 
same fate, may not. If the transition is made successfully, 
these plaintiffs will have had a part. Moses saw the land 
of Judah from Mount Pisgah, though he himself was 
never to set foot there.”

In conclusion, we affirm the judgment of the District 
Court in the following respects: the approval of the plan 
insofar as it pertains to school grades already integrated; 
the approval of the plan as to items three and four thereof, 
providing for zoning or districting based upon location

O pinion o f S ix th  C ircuit



34a

and capacity of school buildings and the permission of 
students to attend schools designated for their zones; the 
approval of the plan as to transfers subject to it being 
used for proper school administration purposes and not 
for perpetuation of segregation; the rejection of the plan 
so far as it pertains to Fulton High School and the order 
to the board to resubmit a plan in a reasonable time that 
will permit Negro students to have the advantage of the 
special courses of that high school and the denial of injunc­
tive relief.

We modify the judgment of the District Court insofar 
as it approved the board’s plan for continued segregation 
of all grades not reached by its grade-a-year plan. It is 
not the function of this Court to formulate or dictate to 
the board a plan for the operation of the Knoxville schools. 
It is, likewise, not our intention to require immediate total 
desegregation. We do believe, however, that more grades 
than contemplated by the board’s plan should now be 
desegregated. In the light of the board’s experience with 
the present plan, it should be enabled to submit an amended 
plan that wil accelerate desegregation and more nearly 
comply with the mandate of the Supreme Court for “good 
faith compliance at the earliest practicable date.”

The case is remanded to the District Court with instruc­
tions to require the board to promptly submit an amended 
and realistic plan for the acceleration of desegregation, in 
accordance with the views herein expressed.

O pinion o f S ix th  C ircuit



35a

J u d g m e n t  o f  S i x t h  C ircuit

April 3,1962

A ppeal from the United States District Court for the 
Eastern District of Tennessee.

T his Cause came on to be heard on the transcript of the 
record from the United States District Court for the 
Eastern District of Tennessee, and was argued by counsel.

On  Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be and the same is hereby affirmed 
in part, modified in part, and the cause is remanded for 
further proceedings consistent with the opinion filed herein.

Approved for entry:

/ s /  L ester L. Cecil 
United States Circuit Judge



APPENDIX B

Opinions and Judgments in Maxwell Case



37a

Filed: November 23,1960
This cause came on to be heard before the Honorable 

William E. Miller, District Judge, on October 27, 1960, and 
prior days of the term, upon the entire record, oral testi­
mony and exhibits without the intervention of a jury, brief 
and arguments of counsel, from all of which the Court 
finds and holds as follows:

F ihdings of F act

1. The plaintiffs, all of whom are Negro school children 
and their parents and are citizens and residents of David­
son County, Tennessee, filed this action on 19 September, 
1960, seeking declaratory and injunctive relief against 
enforcement of the custom, practice and policy of the de­
fendant, County Board of Education of Davidson County 
and its Superintendent of Schools, J. E. Moss, requiring 
racial segregation in the County Schools and refusing to 
admit certain of the plaintiffs to certain schools solely 
because of their race or color. Plaintiffs also prayed for 
an order requiring defendants to submit a plan for re­
organization of the entire County School System into a 
unitary nonracial school system, including plans for elim­
ination of racial segregation in teacher and other personnel 
assignments, school construction, and the elimination of any 
other discrimination in the operation of the school system 
or in the school curriculum which are based solely upon 
race or color.

2. The defendants, Frank White; S. L. Wright, Jr.; 
F. K. Hardison, Jr.; Ferriss C. Bailey; E. D. Chappell; 
Aubrey Maxwell; and Olin White, together comprise all the 
duly elected members of the defendant County Board of 
Education of Davidson County, Tennessee, and are sued

District C o u r t  F i n d i n g s  o f  Fact, C o n c l u s i o n s  o f

L a w  a n d  J u d g m e n t



38a

in their individual and official capacities together with said 
Board of Education, which is sued as a continuous body or 
entity. Defendant, J. E. Moss, is the duly elected or ap­
pointed County School Superintendent and/or Superin­
tendent of Public Instruction of Davidson County, and is 
sued in both his individual and official capacity. The Board 
of Education is vested with the administration, manage­
ment, government, supervision, control and conduct of the 
public schools of said County, and defendant, J. E. Moss, 
as administrative agent for the Board, has immediate 
control of the operation of the County Schools, and serves 
as a member of the Executive Committee of the Board.

3. The defendants, acting under color of the laws of the 
State of Tennessee and County of Davidson, have pursued 
for many years and are presently pursuing a policy, custom, 
practice and usage of operating a compulsory racially 
segregated school system in and for said County. The 
racially segregated school system operated by defendants 
consists of a system of elementary, junior high, and high 
schools, limited to attendance by white children and negro 
children, respectively, of the County of Davidson. Attend­
ance at the various schools is determined solely upon race 
and color. A dual set of school zone lines is also maintained. 
These lines are based solely upon race and color. One set 
of lines relates to the attendance areas for the Negro 
schools and one set to the attendance areas for the white 
schools. These lines overlap where Negro and white school 
children reside in the same residential area.

4. At the beginning of the September 1960, school term, 
the infant plaintiffs, Henry C. Maxwell, Jr., and Benjamin 
Grover Maxwell, made application individually and/or

D istric t C ourt F ind ings o f F act, Conclusions o f Law  and
Judgm en t, N ovem ber 23,1960



39a

through their parents to defendants for admission or trans­
fer to Glencliff Junior High School and/or Antioch High 
School, same being “white” schools which are nearer to 
their residence than Haynes High School, the “Negro” 
school they are required to attend, and were refused said 
admission or transfer solely on account of their race or 
color. At the same time, the infant plaintiffs, Cleophus 
Driver, Christopher C. Driver, Deborah Driver, and 
Deborah Ruth Clark, made application individually and/or 
through their parents for admission or transfer to Bor­
deaux Elementary School, a “white” school which is nearer 
to their residence than Ha;ynes School, the “Negro” school 
they are required to attend, and were refused admission or 
transfer by defendants, solely on account of their race or 
color. Had these infant plaintiffs been white children, they 
would have been admitted or transferred to the said “white” 
schools to which they applied.

5. The infant plaintiffs, Jacqueline Davis, Shirley Davis, 
George Davis, Jr., Robert Davis, Rita Davis, and Robert 
Rickey Taylor, reside nearer to a Negro school which they 
have been attending, but some of them accompanied the 
other plaintiffs when they made application for admission 
to said “white” schools, and all of them join in this action 
because they allege that they are being denied their right 
to enjoy a nondiscriminatory public education by reason 
of the compulsory racially segregated public school system 
which defendants are maintaining and operating in and for 
Davidson County.

6. At a preliminary hearing on 26 September, 1960, this 
Court reserved judgment on motions by defendants to 
strike and/or dismiss those portions of the complaint com­

D istric t C ourt F ind ings o f F act, Conclusions o f L aw  and
Judgm en t, N ovem ber 23,1960



40a

plaining of segregated, teacher and personnel assignment, 
but ordered the defendants to submit a complete and sub­
stantial plan which will accomplish complete desegregation 
of the public school system of Davidson County, Tennessee 
in compliance with the requirement of the Fourteenth 
Amendment to the Constitution of the United States.

7. Pursuant to said order of the Court, the defendants 
subsequently filed with the Court the following plan for 
desegregation of the school system:

P l a s

1. Compulsory segregation based on race is abolished 
in Grade One of the Davidson County Schools for 
the scholastic year beginning in September 1961, 
and thereafter for one additional grade beginning 
with each subsequent school year, i.e., for Grade Two 
in September 1962, Grade Three in September 1963, 
Grade Four in September 1964, etc.

2. A plan of school zoning based upon location of school 
buildings, transportation facilities and the most re­
cent scholastic census, without reference to race, 
will be established for the administration of the first 
grade, and other grades as they are desegregated 
according to the gradual plan.

3. Students entering the first grade will be permitted to 
attend the school designated for the zone in which 
he or she resides, subject to regulations that may be­
come necessary in particular cases.

4. Application for transfer of first grade students, and 
subsequent grades according to the gradual plan,

D istric t C ourt F ind ings of F act, Conclusions o f Law  and
Judgm en t, N ovem ber 23,1960



41a

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

5. The following will be regarded as some of the valid 
conditions for requesting transfer:
a. When a white student would otherwise be re­

quired to attend a school previously serving 
colored students only.

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

c. When a student would otherwise be required to 
attend a school where the majority of students in 
that school, or in his or her grade, are of a differ­
ent race.

6. A plan of pupil registration to be held each Spring 
to aid in formulating necessary arrangements for the 
opening of schools in the Fall, such as available 
room, teaching aids, textbooks, pupil immunizations, 
zoning, and transportation facilities, will be con­
tinued.*

7. Transportation will be provided to all students that 
are eligible for bus service.*

8. Thereafter, the plaintiffs filed the following specifica­
tions of objections to said plan:

District Court Findings of Fact, Conclusions of Law and
Judgment, November 23,1960

This has been done for years.



42a

Specification of Objection to P lan F iled by
County Board of E ducation of Davidson County

The plaintiffs, Henry C. Maxwell, Jr., et al., respect­
fully object to the plan filed in the above entitled cause 
on or about the 19th day of October, 1960, by the de­
fendant, County Board of Education of Davidson 
County, Tennessee, and specify as grounds of objection 
the following:

1. That the plan does not provide for elimination 
of racial segregation in the public schools of Davidson 
County “with all deliberate speed” as required by the 
due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United 
States.

2. That the plan does not take into account the 
period of over six (6) years which have elapsed during 
which the defendant, County Board of Education of 
Davidson County, has completely failed, neglected and 
refused to comply with the said requirements of the 
due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United 
States.

3. That the additional twelve (12) year period pro­
vided in said plan is not shown to be “necessary in the 
public interest” and “consistent with good faith com­
pliance at the earliest practicable date” in accordance 
with the said requirement of the due process and equal 
protection clauses of the Fourteenth Amendment to 
the Constitution of the United States.

District Court Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



43a

4. That the defendants have not carried their burden 
of showing any substantial problems related to public 
school administration arising from:
a. “the physical condition of the school plant” ;
b. “the school transportation system” ;
c. “personnel” ;
d. “revision of school districts and attendance areas 

into compact units to achieve a system of deter­
mining admission to the public schools on a non- 
racial basis” ;

e. “revision of local laws and regulations which may 
be necessary in solving the foregoing problems” ;

as specified by the Supreme Court in Brown v. Board 
of Education (May 31, 1955) 349 U. S. 294, 75 S. Ct. 
753, 99 L. Ed. 653, which necessitate the additional time 
contemplated by their plan for compliance with the 
constitutional requirement of a racially unsegregated 
public educational system.

5. That the plan is manifestly a substantially exact 
copy of the “Nashville Plan” adopted by defendants 
without reference to the local conditions in Davidson 
County as a minimum plan predicated on subjective 
and mental fears of the defendants as to possible com­
munity hostility or friction among students, and is not 
supported by a showing of any objective adminis­
trative conditions or problems which legally justify its 
complete deprivation of the constitutional rights of 
plaintiffs and all other children now in school to an 
integrated education by projecting the bar of segrega­
tion into the next twelve years.

District Court Findings of Fact, Conclusions of L aw  and
Judgment, November 23,1960



44a

6. That the plan forever deprives the infant plain­
tiffs and all other Negro children now enrolled in the 
public schools of Davidson County, of their rights to a 
racially unsegregated public education, and for this 
reason violates the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitu­
tion of the United States.

7. That the plan wholly ignores and fails to comply 
with the statement of this Court from the Bench on 
26 September, 1960, holding that the individual plain­
tiffs “have been denied their constitutional and legal 
rights”, and suggesting that they be accorded these 
rights by defendants voluntarily rather than by court 
order, in that under the plan the individual plaintiffs 
can never be admitted to an integrated school and are 
forever deprived of their rights to a racially integrated 
public education in Davidson County.

8. That the plan fails to take into account recent 
annexation by the City of Nashville of a large area of 
surrounding Davidson County resulting in the public 
schools of said County becoming a part of the City of 
Nashville School System, which latter School System is 
now desegregated from the first through the fourth 
grades.

9. That the plan fails to take into account the rights 
of the infant plaintiffs and other Negro children sim­
ilarly situated and forever deprives them of their rights 
to enroll in and attend any technical or other special 
or vocational schools, summer courses and educational 
training of a specialized nature as to which enrollment 
is not based on location of residence.

D istric t C ourt F ind ings o f F act, Conclusions o f L aw  and
Ju dgm en t, N ovem ber 23,1960



45a

10. Paragraph five (5) of the plan violates the due 
process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States in 
that said paragraph provides racial factors as valid 
conditions to support requests for transfer, and fur­
ther in that the racial factors therein provided are 
manifestly designed and necessarily operate to per­
petuate racial segregation.

11. That the plan contemplates continued mainte­
nance and operation by defendants of “Negro” and 
“white” schools substantially designated by race, in 
violation of the due process and equal protection 
clauses of the Fourteenth Amendment to the Consti­
tution of the United States, in that it fails to make any 
provision for the reorganization of the entire County 
School System into a unitary, nonracial school system 
so as to include a plan for the assignment of teachers, 
principals and other school personnel, as well as school 
children, on a nonracial basis; for the allotment of 
funds, construction of schools and approval of budgets 
on a nonracial basis; and for the elimination of all 
other discriminations in the operation of the school 
system or in the school curriculum which are based 
solely on race and color.

W hereof, the plaintiffs pray:
1. That the Court grant their motions for tempo­

rary restraining order and preliminary injunction so 
as to require the immediate admission by defendants of 
the individual plaintiffs to the public schools of David­
son County, Tennessee on an unsegregated basis.

D istric t C ourt F ind ings o f F act, Conclusions o f L aw  and
Judgm en t, N ovem ber 23,1960



46a

2. That the declaratory and permanent injunctive 
relief prayed for in their complaint be granted, said 
injunctive relief to be effective not later than the begin­
ning of the Spring Semester or Term of the public 
schools of Davidson County in January 1961.

3. That the defendants be required by the Court to 
reorganize the entire County School System of David­
son County, Tennessee into a unitary nonracial school 
system, including all of the matters prayed for in the 
sixth prayer of the complaint filed in this cause.

9. At the hearing on said plan on 24 October 1960, the 
defendants offered, in support of the plan, the testimony 
of Mr. Ferriss C. Bailey, Chairman of the Special Commit­
tee of the Board charged with preparing the plan, who 
had been a member of the Board for several years and 
previously had been a member of the City of Nashville 
Board of Education, and who testified that the plan was 
prepared by the Staff, and that the Board accepted and 
approved the plan and that he thought it a wise plan. Mr. 
J. E. Moss, the County Superintendent for many years, 
testified as an expert that he believed the plan to be a wise 
and workable one; Mr. W. H. Oliver, Superintendent of 
Schools of the City of Nashville, testified as an expert that 
the Nashville grade a year “stair-step” plan initiated under 
Court order in 1957 had proved a wise and workable one 
for Nashville. In addition, the Attendance Officer, Psy­
chologist and Transportation Officer of the County Schools, 
testified as to data relating to school population, pupil 
achievement levels and school bus transportation respec­
tively, in the County School System. Defendants also in­
troduced a zoning map and attendance schedule showing

D istric t C ourt F ind ings o f F act, Conclusions o f Law  and
Ju dgm en t, N ovem ber 23,1960



47a

the projected maximum expected distribution of Negro 
school children in presently white County Schools under 
nonracial zoning. All of said staff members had several 
years experience in their respective positions in Davidson 
County, and were intimately acquainted with conditions in 
that county and all problems involved in desegregation 
therein.

10. In opposition to the plan, plaintiffs introduced the 
testimony of Dr. Herman Long, Director of the Depart­
ment of Eace Relations, American Missionary Association 
of the Congregational Church, and teacher of Sociology 
in Fisk University, Nashville, Tennessee, for several years, 
an expert in the field of race relations in the United States; 
Dr. Eugene Weinstein, Assistant Professor of Sociology 
in Vanderbilt University, Nashville, Tennessee, an expert 
in the field of child development, who has conducted a 
recent research study of attitudes of Negro parents in­
volved in public school desegregation in the City of Nash­
ville, located within Davidson County, Tennessee; Dr. J. 
M'asuouka, Professor of Sociology and Chairman of the 
Department of Social Science at Fisk University, Nashville, 
Tennessee for several years, an expert in the field of race 
relations among peoples of the world; and the plaintiffs, 
Henry C. Maxwell, Sr., Mrs. Annie P. Driver, and Mrs. 
Floy Clark (the latter by stipulation). The plaintiffs tes­
tified that they objected to the plan because it would pre­
vent their children now in school from enjoying their con­
stitutional rights to a nonracially discriminatory public 
education, that their children wanted to enjoy such an edu­
cation now, and that they feel their children are being 
injured by the racially segregated education they are now

D istric t C ourt F ind ings o f Fact, Conclusions o f L aw  and
Judgm en t, N ovem ber 23,1960



48a

receiving. The plaintiffs’ aforesaid expert witnesses were 
of the opinion that desegregation could reasonably be ef­
fected in the Davidson County School System within one 
year; and that the pupil transfer provision contained in the 
proposed plan, as drafted, would necessarily tend to per­
petuate segregation. However, these witnesses, although 
expert witnesses and outstanding men in their respective 
fields, have had no actual experience with or responsibility 
for the administration of the schools in Davidson County 
and lack the same intimate knowledge of local conditions 
possessed by defendants’ witnesses.

11. This Court approved in the case of the City of Nash­
ville a plan of gradual desegregation after considering the 
particular facts which prevailed in that case. This plan of 
gradual desegregation, according to the testimony in this 
case, has worked well in the City of Nashville and has 
proved to be a workable and a feasible plan of desegrega­
tion. It has proved to be, in the opinion of the Superinten­
dent of City Schools, a very wise plan for this community.

12. As stated, the school authorities of Davidson County, 
including the members of the staff, are close to the situa­
tion in Davidson County, are more intimately acquainted 
with them and have more knowledge about them than any­
one else could possibly possess and the primary respon­
sibility rests with these authorities, whose prerogatives and 
rights should not be usurped by the Courts.

13. From the testimony in this case it is evident that:
a. A plan of gradual desegregation works with a 

minimum of difficulties in this community.

D istric t C ourt F ind ings o f F act, Conclusions o f Law  and
Judgm en t, N ovem ber 23,1960



49a

b. Practically all of the schools of Davidson County 
are or may be affected by a plan of desegregation for 
the reason that the areas populated by Negroes are 
greatly scattered throughout the County.

c. There has been a tremendous increase in the 
school population in Davidson County over the past 
several years, with the result that practically all of 
the school housing facilities are crowded or over­
crowded and the teacher-pupil load is at a peak in the 
system.

d. The County school system operates a transporta­
tion system, which system is presently operated at 
peak capacity, and the bus drivers are solely charged 
with maintaining discipline on the bus, in addition to 
their other duties, so that any factor which increases 
or tends to increase disciplinary problems on the buses 
likewise increases the hazards to the safety of the 
pupils. Discipline among the pupils on the buses is in­
creased with a mixing of the races, especially when 
such is commenced at grade levels above the first and/ 
or first and second grades.

e. Because the children of the two races have not 
been intimately associated due to proximity of resi­
dences in the County, a great emotional impact will be 
experienced by the children of both races following 
desegregation of the schools.

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

D istric t C ourt F ind ings o f Fact, Conclusions o f L aw  and
Judgm en t, N ovem ber 23,1960



50a

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.

g. Any change of organization or plan in the school 
system, other than at the end of a school year or a 
school semester, would cause confusion and disruption 
of classes with an accompanying loss of teacher time 
and student time.

14. The school in the Bordeaux community, one of the 
schools where the plaintiffs have made application for en­
rollment, has been partially destroyed by fire, and the school 
population there is presently being cared for on a make­
shift basis, with all existing facilities overtaxed. The 
Antioch School, one of the schools where plaintiffs made 
application for enrollment, is the most overcrowded school 
in the entire system, and the time consumed in traveling to 
the Antioch School by bus from the residence of these 
plaintiffs is as great as the time consumed by such plain­
tiffs in traveling by bus to the Haynes High School, to which 
they are presently assigned.

15. It is particularly desirable to have the school system 
of the City of Nashville and that of Davidson County 
operating on a parallel basis.

Conclusions of Law

1. This Court has jurisdiction of the parties and of this 
action, which is filed pursuant to Title 28, United States 
Code, Sections 1331, 1343, 2001 and 2202, and Title 42, 
United States Code, Section 1983, for injunctive and de­

District Court Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



51a

claratory relief to redress rights of the plaintiffs secured by 
the equal protection and due process clauses of the 
Fourteenth Amendment to the Constitution of the United 
States and by the Act of May 13, 1870, Chapter 14, Section 
16, 16 Stat. 144 (Title 42, United States Code, Section 
1981).

2. This is a class action brought not only by the plaintiffs 
for their own benefit but also on behalf of all other persons 
similarly situated.

3. The Court at the outset considers the case with the 
established principle that compulsory racial segregation is 
unconstitutional and that the plaintiffs and those they 
represent are entitled to have their rights declared and 
enforced accordingly.

4. In approving a plan of gradual desegregation in the 
case of the City of Nashville, after considering the par­
ticular facts which prevailed in that case, the Court made 
the statement in substance that each case must be deter­
mined on its own facts and that a decision elsewhere in the 
United States may or may not be relevant depending upon 
the conditions, whether or not they were comparable to the 
situation which prevailed here, and that, after all, this was a 
problem which must be determined locally and in accordance 
with local conditions. That case was appealed to the Court 
of Appeals of this Circuit, and was affirmed in a unanimous 
decision of that court. Thereafter at a later date the Su­
preme Court of the United States refused to review it by 
denying certiorari, which left, insofar as this Court is 
concerned, the decision of the Court of Appeals in full 
force and effect as stating correct legal principles.

D istr ic t C ourt F ind ings o f F act, Conclusions o f L aw  and
Judgm en t, N ovem ber 23,1960



52a

5. This Court does not hold that automatically the Nash­
ville Plan constitutes the plan which should he applied to 
Davidson County. The pertinent factors must be weighed 
and assessed, and if the factors are substantially similar, 
then the precedent of that case should guide the Court in 
the decision of this case. If they are materially dissimilar, 
then that case would not apply. Considerable flexibility is 
involved in applying the controlling legal principle.

6. The Court must decide the case in accordance with 
what it thinks is a realistic plan for the community itself, 
considering all of the conditions and circumstances in­
volved, the administrative problems, the personnel prob­
lems, and any other relevant and pertinent factors, one 
of the important ones of which is the efficient and har­
monious operation of the school system itself. The Court 
must not disrupt and destroy the school system. That fact 
must be kept in mind always.

7. The Supreme Court has recognized the principle that 
the primary responsibility in assessing and weighing these 
factors rests with the constituted school board and author­
ities.

8. The Court does not have any doubt that the School 
Board has acted in good faith, and has fully carried the 
burden of proof to show the feasibility of the principal 
features of the proposed plan.

9. The plan presented by the defendant County Board 
of Education should be approved by the Court with the 
following exceptions and modifications:

District Court Findings of Fact, Conclusions of Law and
Judgment, November 23,1960



53a

a. Instead of the first grade being desegregated, 
as contemplated by said plan, the Court is of the opin­
ion and holds that the first four grades should be de­
segregated at one time. This will equalize the plan 
with the City of Nashville Plan. It is particularly 
desirable to have the grades of the two systems opera­
tion on a parallel basis.

b. In view of the delay which has already occurred 
in regard to desegregation, the plan should be effec­
tive and should be put into operation (that is, the first 
four grades should be desegregated) at the beginning 
of the next school semester beginning January 1961, 
rather than the next school year; and the first five 
grades will be desegregated beginning September 1961.

c. A specific provision should be included in the 
decree for the complete elimination of any possible 
discrimination with respect to the summer classes 
which are attended by outstanding students. In other 
words, facilities on a nondiscriminatory, desegregated 
basis will be provided for students of this type, and 
provision will be made to notify all teachers in the 
system, both colored and white, of the availability of 
these classes, so that there will be no doubt about the 
colored students having knowledge of the opportu­
nities made available in this respect.

d. Specific notice will be given to all parents of the 
zone in which their children live. In other words, before 
the beginning of the school year, the parents of all 
children will receive specific notice of the zone in which 
their children fall for the purpose of attending classes

D istr ic t C ourt F ind ings o f Fact, Conclusions o f Law  and
Judgm en t, N ovem ber 23,1960



54a

in order that there may be removed any possible doubt 
about some people not having full information.

e. The Court will retain jurisdiction of this case 
throughout the period of transition.

10. 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 plain­
tiffs, but is a postponement in enforcement of the rights 
of some of the plaintiffs in the interest of the school sys­
tem itself and the efficient, harmonious, and workable tran­
sition to a desegregated method of operation.

11. Judgment should again be reserved, for the present, 
on defendants’ motions to strike and to dismiss certain 
portions of the complaint relating to segregated teacher 
and personnel assignment, and on the matters raised in 
the complaint which are involved in said motions, pending 
submission of further memoranda and argument of counsel.

12. The prayer of the plaintiffs for injunctive relief 
should be denied, except for the matters as to which judg­
ment is reserved.

D istric t C ourt F ind ings o f F act, Conclusions o f Law  and
Judgm en t, N ovem ber 23,1960

J udgment

It is accordingly ordered, adjudged and decreed as 
follows:

1. That the plan submitted by the County Board of 
Education of Davidson County, Tennessee, is approved, 
except in the following particulars:



55a

a. Compulsory segregation based on race is abol­
ished in Grades One through Four of the Davidson 
County Schools for the Second Semester of the 1960-61 
school year beginning January 1961, and thereafter for 
one additional grade beginning with each subsequent 
school year, i.e., for Grade Five in September 1961, 
Grade Six in September 1962, etc.

b. As respects the summer classes attended by out­
standing students, there will be no segregation based 
on races, and notice of such will be immediately given 
by the School Board to all teachers in the Davidson 
County school system, both Negro and white, of the 
availability of these classes.

c. The Davidson County School Board will, prior to 
the beginning of the Second Semester of the 1960-61 
school year, and prior to the beginning of each school 
year thereafter, give specific notice to the parents of 
all school children of the zone in which their children 
fall for the purpose of attending classes.

2. The prayer of the plaintiffs for injunctive relief be, 
and the same is hereby denied, except with regard to those 
matters as to which judgment is hereinafter reserved.

3. Jurisdiction of this case is retained by the Court 
throughout the period of transition.

4. Judgment is reserved on the question of the motion 
to strike and those portions of the motion to dismiss not

D istric t C ourt F ind ings o f F act, Conclusions of Law and
Judgm en t, N ovem ber 23,1960



56a

hereinbefore overruled, and on the matters raised in the 
complaint which are involved in said motions.

To the foregoing action of the Court in approving the 
plan submitted by defendants and in denying plaintiffs’ 
prayer for injunctive relief, the plaintiffs except.

This the 23rd day of November 1960.

V m . E. Miller 
United States District Judge

District Court Findings of Fact, Conclusions of L aw  and
Judgment, November 23,1960



57a

Filed: January24,1961
This cause came on to be heard before the Honorable 

William E. Miller, District Judge, without the intervention 
of a jury, on January 10, 1961, upon the entire record, and 
especially upon the motion for further relief and the motion 
for new trial and for appropriate relief heretofore filed by 
plaintiffs, upon the merits of the cause as to the issues 
heretofore reserved by the Court, upon the motion to inter­
vene in the cause filed by Porter Freeman, individually and 
in behalf of others, the testimony of witnesses heard in 
open court, and briefs and arguments of counsel, from all 
of which the Court finds and holds as follows:

F indings of F act

1. With respect to the notices furnished by the defen­
dants to parents of school children affected by the deseg­
regation plan heretofore approved and the parents of all 
other children attending the schools in Davidson County, 
the Court finds that such notices are not confusing or mis­
leading and further finds that there has been no showing 
of any confusion or misleading as a result of the form of 
the notices.

2. The Court finds that to grant the request of the four 
individual plaintiffs, Cleophus Driver, Deborah Ruth Clark, 
Henry C. Maxwell, Jr. and Benjamin Grover Maxwell to 
be admitted to schools as exceptions to the plan approved 
by the Court would in effect destroy the plan in this locality.

3. The Court finds that teachers and sustaining personnel 
are assigned to the schools based upon their particular 
aptitude, qualifications, background and other factors, all

District C o u r t  F i n d i n g s  o f  Fact, C o n c l u s i o n s  o f

L a w  a n d  J u d g m e n t



58a

of which are considered by the Board, and that one of these 
factors has been race.

4. The difficulties and problems which will be encoun­
tered in making the transition from a segregated system to 
a nonsegregated system would be enhanced and complicated 
if the Court should at this time require the assignment of 
teachers and supporting personnel in the schools of the 
system on a basis different from that which has heretofore 
been followed. It would in all probability lead to a situa­
tion where a plan which would otherwise be successful and 
would operate smoothly and harmoniously would be im­
paired and rendered unworkable.

Conclusions of L aw

1. The Board of Education acted in good faith in pre­
paring the notices to parents under the desegregation plan 
and in mailing and distributing them. The School Board 
and the attorney representing the School Board and all 
of the defendants acted in good faith in undertaking to 
carry out the order of the Court and the Court holds that 
they did so in substantial effect.

2. The notices to parents heretofore furnished by de­
fendants to said parents under the desegregation plan 
were adequate. The Court finds no objection to them.

3. The notices to parents should be given to those who 
are affected by said plan of desegregation and not to any­
one else, but the form of the notice in the future should be 
submitted to opposing counsel in advance of its mailing, 
giving them sufficient time to file objections with the Court;

D istric t C ourt F ind ings o f Fact, Conclusions o f Law  and
Judgm en t, January  24, 1961



59a

and the Court will impose that requirement, believing that 
it is reasonable.

4. With respect to the request of the four individual 
plaintiffs, Cleophus Driver, Deborah Ruth Clark, Henry C. 
Maxwell, Jr., and Benjamin Grover Maxwell, to be ad­
mitted 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 Davidson 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 effective transition from a racially segregated system 
to a racially nonsegregated system of schools, taking into 
account the conditions existing in this particular locality. 
And the Court cannot see how these individual plaintiffs 
who brought this action are or would be entitled to any 
different treatment from any other children who attend 
the schools of Davidson County and are members of the 
class represented by the plaintiffs.

5. With respect to the issue reserved by the Court on 
the merits, as to whether or not there is any violation of 
the rights of the plaintiffs or of those represented by the 
plaintiffs where teachers are assigned in the County School 
System on the basis of race or where race is used as a 
factor in making assignments of teachers, the Court cannot 
go so far as to agree with the argument that this question 
has been finally settled by the decision in the Brown cases. 
But the Court does entertain the view that this question is 
a serious question under the Equal Protection Clause of 
the Fourteenth Amendment. Particularly is this true when

D istric t C ourt F ind ings o f Fact, Conclusions o f L aw  and
Judgm en t, Ja n u a ry  24, 1961



60a

the Court considers the fact that a plan has been approved 
for Davidson County which includes a very liberal transfer- 
provision. When this provision, although it is on a volun­
tary basis, is coupled with a policy (and the Court is not 
now finding that this policy exists in Davidson County) 
which would assign teachers on the basis of race, then a 
serious question is presented to the Court as to whether 
there is not actually being thereby perpetuated the very 
condition which the Supreme Court said could not be per­
petuated, and that is a segregated system of public schools. 
The Court is required to view the matter in terms of the 
entire school system, and in terms of the quality of educa­
tion which the students are entitled to receive.

6. The Court finds that it is not necessary to determine 
the question relative to the assignment of school teachers 
and other personnel at this time for the reason that the 
Court does not believe (even if it should now hold and de­
clare that the plaintiffs do have the right to attend a school 
system where race is not one of the factors considered in 
the assignment of teachers) that an injunction should issue 
at this time.

7. In the opinion of the Court, it is the better and wiser 
course for the Court to follow, even if the foregoing rights 
were declared as contended for by the plaintiffs, to with­
hold the granting of an injunction until the plan has had 
an opportunity to operate for a substantial period of time. 
The school authorities should have the benefit of experi­
ence in dealing with the operation of integrated schools. 
For these reasons, in the exercise of the Court’s discretion, 
the Court would deny injunctive relief in this respect at 
this time.

D istr ic t C ourt F ind ings o f Fact, Conclusions o f Law  and
Judgm en t, Ja n u a ry  24, 1961



61a

8. This case will remain on the docket of the Court, and 
the Court will retain jurisdiction of the case during the 
period of transition; and the question with respect to the 
assignment of teachers, principals, and sustaining person­
nel can be renewed by the plaintiffs at a later date, and 
will be taken up and considered at that time, after the plan 
has had an opportunity to be operated for a substantial 
period of time.

9. The motion to intervene filed by Porter Freeman in­
dividually and in behalf of others, is not well taken for 
the reasons, first, that it comes too late; second, that it 
is contrary to the plan which the Court has already ap­
proved; and third, that it contemplates putting into effect 
a plan which has specifically been held to be unconstitutional 
by this Court and by the Court of Appeals of the Circuit. 
For these reasons the motion to intervene is not well taken 
and will be denied.

D istric t C ourt F ind ings o f Fact, Conclusions o f Law  and
Judgm en t, January  24, 1961

J udgment

It is accordingly Obdered, Adjudged and Decreed as 
follow s:

1. That the relief prayed for in the motion for further 
relief filed by plaintiffs be and the same is denied, with 
the exception that the form of the notices to parents in 
the future are directed to be mailed by defendants to coun­
sel for plaintiffs in advance of mailing, so as to give them 
sufficient time to file with the Court objections to the form 
of said notices.

2. The aforesaid notices to parents will be given to those 
who are affected by said plan of desegregation heretofore 
approved by the Court and not to anyone else.



62a

3. The motion for a new trial and for appropriate relief 
filed by plaintiffs is overruled and denied.

4. Injunctive relief with respect to the issues heretofore 
reserved by the Court concerning assignment of teachers, 
principals, and sustaining personnel in the schools on the 
basis of race is denied at this time; and the Court further 
reserves ruling with respect to the assignment of teachers 
and other school personnel, including the right of school 
children or their parents to raise such question.

5. This case will remain on the docket of the Court, 
and the Court will retain jurisdiction of the case during 
the period of transition from a racially segregated to a 
racially desegregated school system. The question with 
respect to assignment of teachers, principals, and sustaining 
personnel may be renewed by the plaintiffs at a later date. 
It may be taken up and considered at that time after the 
plan has had an opportunity to be put into operation for 
a substantial period of time.

6. The motion to intervene filed in this cause by Porter 
Freeman is overruled and denied.

To the foregoing action of the Court in denying their 
motion for further relief and their motion for new trial 
and for appropriate relief, and in denying the relief prayed 
for in the complaint with respect to said issues heretofore 
reserved by the Court, the plaintiffs respectfully except.

This the 24 day of January, 1961.

District Court Findings of Fact, Conclusions of Law and
Judgment, January 24, 1961

Wm. E. M i l l e r  

United States District Judge



63a

No. 14607
UNITED STATES COURT OF APPEALS 

F or the S ixth Circuit

O p i n i o n  o f  S i x t h  Ci r c u i t

H enry C. Maxwell, J r., et al.,

Plaintiffs-Appellants, 
v.

County Board oe E ducation of Davidson County, Tenn .,
et AL.,

Defendants-Appellees.

appeal from the united states district court for the
MIDDLE DISTRICT OF TEN N ESSEE, NASHVILLE DIVISION.

Decided April 4 ,1962.

Before: Miller, Chief Judge, Cecil, Circuit Judge, and 
D abr, Senior District Judge.

Cecil, Circuit Judge. This is an appeal from an order 
of the United States District Court for the Middle District 
of Tennessee concerning the desegregation of the public 
school system of Davidson County, Tennessee. This is the 
county in which the city of Nashville is located.

The appellants are Negroes and citizens of the United 
States and Davidson county. The adult plaintiffs are 
parents or guardians of the infant plaintiffs and reside 
with them in Davidson county. The infant plaintiffs are



64a

school children who have been attending the public schools 
of Davidson county and who can satisfy all of the require­
ments for admission to the public schools operated by the 
defendant County Board of Education. The action was 
brought in the District Court by the plaintiffs, as a class 
action for themselves and on behalf of all others similarly 
situated.

The appellees are the County Board of Education, sued 
as a corporate or continuous body or entity, the individual 
members thereof, sued in their official capacity and as indi­
viduals, and the Superintendent of Schools, sued in his 
official capacity and as an individual.

The parties will be referred to hereinafter, respectively, 
as plaintiffs and defendants.

By this appeal three of the named infant plaintiffs seek 
a reversal of an order of the District Court denying them 
admission to certain schools heretofore denominated 
“white” schools. It is conceded that they live nearer to 
the schools to which they seek admission than they do to 
the so-called “Negro” schools which they are required to 
attend. It is also admitted that they were denied admission 
to these schools by reason of their race or color and that if 
they had been white children their requests would have 
been granted. The trial judge denied these plaintiffs admis­
sion to the schools to which they requested transfers.

He refused to approve the board’s plan for a step-by-step, 
grade-a-year plan of desegregation, but modified it so as 
to require four grades to be desegregated as of January 1, 
1961. This made the schools in Davidson county, outside 
of and contiguous with the city of Nashville, operate on 
a parallel basis with the city. As of now, five grades are 
desegregated.

O pinion o f S ix th  C ircuit



65a

The plan as approved included a transfer feature which 
is the same as the one in the Nashville plan. It provided 
that some of the valid conditions of transfer would be 
the following: “a. When a white student would otherwise 
be reuired to attend a school previously serving colored 
students only. b. When a colored student would otherwise 
be required to attend a school previously serving colored 
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.”

Two questions are presented on this appeal. One, that 
the constitutional rights of some of the named plaintiffs 
are being violated in denying them the privilege of imme­
diate transfer to schools that are nearer their homes than 
the ones they are required to attend, solely on the ground 
of race or color. Two, that the transfer feature of the plan 
violates the Fourteenth Amendment to the Constitution, 
for the reason that it provides for transfers to be made 
solely on the basis of race or color.

The same questions were decided in our opinion in 
Josephine Goss, et al., Appellants v. The Board of Educa­
tion of the City of Knoxville, et al., Appellees, No. 14425, 
decided April 3, 1962. ------F. 2d------ .

In that case we said, on the first question: “As pre­
viously indicated, we think the Supreme Court contem­
plated that there would have to be plans for the transition 
and that some individual rights would have to be subordi­
nated for the good of many. The smooth working of a plan 
could be thwarted by a multiplicity of suits by individuals 
seeking admission to grades not yet reached in the desegre­
gation plan.”

O pinion o f S ix th  C ircuit



66a

On the second question, we said: “We do not think 
the transfer provision is in and of itself illegal or uncon­
stitutional. It is the use and application of it that may 
become a violation of constitutional rights. . . .  A similar 
transfer plan was approved by this Court in Kelly v. Board 
of Education of City of Nashville, 270 F. 2d 209, C. A. 6, 
cert, denied, 361 U. S. 924. We adhere to our former ruling 
with the admonition to the Board that it cannot use this 
as a means to perpetuate segregation.”

Reference is hereby made to the Knoxville case for our 
full discussion on these questions. There is virtually no 
dispute on the pertinent facts of this case as found by the 
trial judge. We think the law, as applied by him to these 
facts, is in accord with the spirit and specific require­
ments of the pronouncements of the Supreme Court on the 
subject. Brown v. Board of Education, 347 U. S. 483; 
Brown v. Board of Education, 349 U. S. 294; Cooper v. 
Aaron, 358 U. S. 1. Judge Miller’s Findings of Fact and 
Conclusions of Law are reported a t -----Fed. Supp.------ .

For the reasons stated herein and in the Knoxville 
opinion, and upon the Findings and Conclusions of Judge 
Miller, the judgment of the District Court is affirmed.

O pinion o f S ix th  C ircuit



67a

J u d g m e n t  o f  S i x t h  Ci r c u i t

April 4, 1962

Appeal from the United States District Court for the 
Middle District of Tennessee.

T his Cause came on to be heard on the transcript of the 
record from the United States District Court for the Middle 
District of Tennessee, and was argued by counsel.

Oh Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be and the same is hereby affirmed.

Approved for entry:

/ s /  Lester L. Cecil 
United States Circuit Judge



38