Northcross v. Memphis City Schools Board of Education Motion to Advance and Petition for Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    I n  th e

Shipmur (Emtrf of tip? iluitni ^taf^a
O ctober T erm  1969 

No. \.\3k....

D eborah  A. N orthcross, et at.,

v.
Petitioners,

B oard of E ducation  of 
th e  M e m p h is , T ennessee Cit y  S chools,

Respondents.

MOTION TO ADVANCE AND PETITION FOR WRIT 
OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE SIXTH CIRCUIT

L ouis R . L ucas

Ratner, Sugarmon, Lucas 
and Willis

525 Commerce Title Building 
Memphis, Tennessee

J ack  Greenberg 
J ames M. N abrit , III 
N orman  J. C h a o h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



I N D E X

PAGE

Opinions B elow ....................................................................  1

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

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

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

Statement ..............................................................................  3

History of the Litigation ..........................................  3

The Memphis School System ................................... 4

The District Court Ruling ....................................... 5

The Rulings of the Court of Appeals ...................  8

R easons foe G ran tin g  th e  W rit :—

I. The Failure of the Court of Appeals to Require 
any Action to Eliminate the Dual School System 
During the Current School Tear Conflicts With 
This Court’s Requirement in Alexander and Carter 
That Every School District Terminate Dual School 
Systems at Once and Operate Now and Hereafter 
Only Unitary Schools ................................................  12

A. The Decision of the Court of Appeals Re­
manding the Case to the District Court With 
the Specific Direction That There Was No 
Need for Precipitous Action Conflicts With 
This Court’s Decision in Alexander and Carter 12



XI

B. The Conflict Between the Decision of the Sixth 
Circuit and Decisions of the Fourth, Fifth and 
Eighth Circuits Implementing Alexander Man­
dates Review by This Court ...............................  14

II. The Court of Appeals’ January 19, 1970 Ruling 
That Memphis Now Operates a Unitary School 
System Directly Contradicts the Findings of the 
District Court and Conflicts With the Decisions of 
This Court From Brown to Carter ....................... 16

C onclusion  .........................................    23

A ppendix

Court of Appeals’ December 19, 1969 Order .........  la

Court of Appeals’ January 12, 1970 Order ...........  5a

District Court’s May 15, 1969 Opinion ................... 9a

1969-70 Enrollment Statistics .................................... 24a

Motion to Require Adoption of Unitary System 
Now .............................................................................  32a

Motion to Convene Emergency P anel......................  36a

En Banc Fourth Circuit Decision ............................ 39a

PAGE



I l l

T able oe A uthorities
page

Cases:
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19

(1969) .......................................................... 2,8,10,12,13,14,
15,16, 20, 22, 23

Anthony v. Marshall County Bd. of Edue., 409 F.2d 
1287 (5th Cir. 1969) ....................................................... 4

Brown v. Board of Edue., 347 U.S. 483 (1954); 349 
U.S. 294 (1955) .......................... -.........................2,16, 22, 23

Carter v. West Feliciana Parish School Bd., No. 944
O.T. 1969 (January 14, 1970) ...... .......... ..... 2, 4,12,13,14,

15,16, 20, 22
Christian v. Board of Educ. of Strong School Dist. No.

83, 8th Cir. No. 20,038 (December 8, 1969) ....... .......  15

Goss v. Board of Educ. of Knoxville, 373 U.S. 683 
(1963) ....... ....................... -...........................................----- 3

Goss v. Board of Educ. of Knoxville, 406 F.2d 1183 
(6th Cir. 1969) .......................................-.................. -....  22

Green v. County School Bd. of New Kent County, 391 
U.S. 430 (1968) ...........................-.................... 2, 4,13,17, 22

Henry v. Clarksdale Municipal Separate School Dist.,
409 F.2d 682 (5th Cir.), cert, denied, 396 U.S. 940 
(1969) ................................................................................ 7

Jackson v. Marvell School Dist. No. 22, 416 F.2d 380 
(8th Cir. 1969) ...............    17

Monroe v. Board of Comm’rs of Jackson, 391 U.S. 450: 
(1968) .......   4,19



IV

Nesbit v. Statesville City Bd. of Educ., 4th Cir. No.
13,292 (December 2, 1969) (en banc) ......... ............. 13,14

Northeross v. Board of Educ., 302 F.2d 818 (6th Cir.),
cert, denied, 370 U.S. 944 (1962) ................................... 3, 5

Northeross v. Board of Educ., 333 F.2d 661 (6th Cir. 
1964) .............................................................. ...................  3,5

Singleton v. Jackson Municipal Separate School Dist.,
5th Cir. No. 26285 (December 1, 1969), rev’d sub 
nom. Carter v. West Feliciana Parish School Bd.,
No. 944 O.T. 1969 (January 14, 1970) ....................... 16

Stanley v. Darlington County School Dist., 4th Cir. No. 
13,904 (January 19, 1970) ..............................................  14

Watson v. City of Memphis, 373 U.S. 526 (1963) ...........  22

PAGE

Statutes:

28 U.S.C. §1343 

42 U.S.C. §1983

3

3



I n  th e

imtiunm (Emtrt of %  Ituteft Stairs
O ctober T erm  1969 

No.................

D eborah A. N orthcross, et al.,

v.
Petitioners,

B oard of E ducation  op 
th e  M em ph is , T ennessee Cit y  S chools,

Respondents.

MOTION TO ADVANCE

Petitioners, by their undersigned counsel, respectfully 
move that the Court advance its consideration and disposi­
tion of this case, which presents issues of national im­
portance about which the court below and other United 
States Courts of Appeals are divided in their interpretation 
of Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 
(1969) and Carter v. West Feliciana Parish School Bd., No. 
944 O.T. 1969 (January 14, 1970). These issues require 
prompt resolution by this Court for the reasons stated in 
the annexed Petition for Writ of Certiorari.

W herefore, petitioners pray that the Court:

1. Consider this motion immediately;



2

2. shorten the time for filing respondents’ response to 
the annexed petition and

3. consider the annexed petition at the Court’s conference 
of February 20, 1970.

Respectfully submitted,

Louis R. L ucas

Ratner, Sugarmon, Lucas 
and Willis

525 Commerce Title Building 
Memphis, Tennessee

J ack  Greenberg 
J ames M. N abrit , III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



I n  t h e

npwmv (Emtrt nf tip Hutted States
Octobee T eem  1969

No.

D eborah A. N orthcross, et al.,

v.
Petitioners,

B oard of E ducation  of 
th e  M e m ph is , T ennessee Cit y  S chools,

Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Sixth Circuit entered in this case on December 19, 1969.

Opinions Below

The orders of the United States Court of Appeals for 
the Sixth Circuit remanding the cause to the district court 
and denying petitioners’ Motion for Injunction Pending 
Certiorari, o f which review is sought, are unreported and 
are reproduced in the Appendix, infra at pp.la-8a. The 
opinion of the United States District Court for the Western 
District of Tennessee is unreported and is also reproduced 
in the Appendix, infra at pp. 9a-23a.



2

Prior reported opinions in this matter are found at 302 
F.2d 818 (6th Cir.), cert, denied, 370 U.S. 944 (1962) and 333 
F.2d 661 (6th Cir. 1964).

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1254(1). The judgment of the Court of Appeals 
was entered December 19, 1969 (infra at 4a).

Questions Presented

1. In light of the decisions of this Court in Alexander 
v. Holmes County Bd. of Educ., 396 U.S. 19 (1969) and 
Carter v. West Feliciana Parish School Bd., No. 944 O.T. 
1969 (January 14, 1970), did the Sixth Circuit err in failing 
to require prompt action during the current school year to 
eliminate the dual school system! 2

2. Did the Sixth Circuit err in determining that the 
Memphis system, in which 93% of the Negro pupils still at­
tend racially identifiable schools (all-Negro or enrolling 
90% or more Negro pupils), was a unitary school system 
meeting the requirements of this Court’s decisions in Brown 
v. Board of Educ., 347 U.S. 483 (1954); 349 U.S. 294 (1955); 
Green v. County School Bd. of New Kent County, 391 U.S. 
430 (1968); Alexander and Carterf

Constitutional Provision Involved

This case involves the Equal Protection Clause of Section 
1 of the Fourteenth Amendment to the Constitution of the 
United States.



3

Statement

History of the Litigation

Suit was originally filed under 28 U.S.C. §1343 and 42 
U.S.C. §1983 to desegregate the Memphis City schools on 
March 31, 1960; the district court denied injunctive relief 
and upheld the Tennessee Pupil Assignment Law. On ap­
peal, the Sixth Circuit reversed, with instructions to the 
district court “ to restrain the defendants from operating a 
biracial school system in Memphis, or in the alternative to 
adopt a plan looking towards the reorganization of the 
schools in accordance with the Constitution of the United 
States.” Northcross v. Board of Educ. of Memphis, 302 
F.2d 818, 824 (6th Cir.), cert, denied, 370 U.S. 944 (1962).

On remand, the school district submitted, and the district 
court approved, a stair-step1 2 plan incorporating geographic 
zoning and minority-to-majority transfers.2 On appeal, the 
Sixth Circuit invalidated the minority-to-majority transfer 
feature and directed close scrutiny of all zone lines because 
it found substantial evidence that the boundaries approved 
by the district court had been “gerrymandered to preserve 
a maximum amount of segregation.” Northcross v. Board 
of Educ. of Memphis, 333 F.2d 661, 663 (1964).

May 13,1966, petitioners filed a Motion for Further Relief 
seeking the adoption of a new desegregation plan. A  modi­
fied plan incorporating minimal zone changes3 and unre­
stricted transfers was submitted by the respondents July 26

1 The original plan of desegregation affected grades 1-3 for the 
school year beginning September, 1962. Grade 4 was to be deseg­
regated during the 1963-64 school year and one additional grade 
per year thereafter. The Sixth Circuit ordered the pace accelerated 
to desegregate junior high school grades in September, 1965 and 
senior high schools in the fall of 1966. 333 F.2d at 665.

2 See Ooss v. Board of Educ. of Knoxville, 373 U.S. 683 (1963).
8 On May 15, 1969, the district court ruled that these same zones 

“are in need of revision for many purposes including further de­
segregation where feasible.” (Infra p. 18a).



4

and approved by the district court without hearing July 29, 
1966. The court made no ruling upon petitioners’ Motion for 
Further Relief. A  second Motion for Further Relief, based 
in part upon Green v. County School Bd. of New Kent 
County, 391 U.S. 430 (1968), was filed July 26, 1968, seeking 
(1) cancellation of all transfers which reduce desegregation 
in the school system,4 * (2) complete faculty desegregation,
(3) a survey of the location of facilities, pupils, etc. with 
a complete report thereon submitted to the district court,
(4) adoption of a new plan of desegregaton, prepared with 
the assistance of the Title IY  Desegregation Center of the 
University of Tennessee, and based on unitary geographic 
zones, consolidation of schools or pairing, but without an 
unrestricted free transfer. The present proceedings arise 
from an appeal of the district court’s May 23, 1969 ruling 
on the Green motion.

The Memphis School System

The Memphis school district lies but four miles north of 
the Mississippi state line in Shelby County, Tennessee.6 
The district operates some 149 schools; 92 of those schools 
are more than 90% white or 90% Negro:

4 Compare Monroe v. Board of Comm’rs of Jackson, 391 U.S. 450
(1968). Under the Memphis free transfer provision during the 
1968-69 school year, 378 white students transferred from desegre­
gated schools to all-white or heavily white schools; 563 white stu­
dents transferred from all-Negro or predominantly Negro schools to 
all white or heavily white schools; and 526 Negro students trans­
ferred from predominantly white desegregated schools to predom­
inantly Negro or all-Negro schools. (See Transfer Report for 1968- 
69, filed by respondents August 14, 1968).

6 Shelby County is contiguous with Marshall County, Mississippi, 
where this Court on January 14, 1970 ordered complete desegrega­
tion of pupils and faculty no later than February 1, 1970. Carter 
v. West Feliciana Parish School Bd., No. 944, O.T. 1969. In 1968-69 
in Holly Springs (Marshall County), Mississippi, 3.2% of that dis­
trict’s Negro pupils attended predominantly white schools. An­
thony v. Marshall County Bd. of Educ., 409 F.2d 1287, 1288 (5th 
Cir. 1969). The comparable percentage in Memphis during 1968- 
69 was 2.7%. See text infra.



5

[A ]s of the current school year, 1968-69, there are 
presently thirty-five [35] all-white schools, fifty [50] 
all-Negro schools, forty-seven [47] predominantly 
white schools and seventeen [17] predominantly Negro 
schools.6

{Infra, p. 10a). Of the 66,555 Negro pupils in the system 
at the time of the February, 1969 hearing on the Green 
motion, only 1,842 (.or 2.7 %) attended schools where white 
students predominated; only 1,258 (2.2%) of Memphis’ 
57,707 white students attended predominantly Negro schools 
(Trial Exhibit No. 27, reprinted in the Appendix to the 
Motion for Summary Reversal). Statistics filed by respond­
ents with the Sixth Circuit prior to the oral argument (infra 
at pp. 24a-31a) show little change during 1969-70. Of 
70,925 Negro students in elementary, junior high and high 
schools, only 2,601 (3.5%) attend predominantly white 
schools; 49,821 (70.2%) attend all-Negro schools; and 65,967 
(93%) attend schools which are more than 90% Negro. 
Meanwhile, the number of white students attending pre­
dominantly Negro schools has declined to 859 (1.4%) of 
the total 60,005 white students.

The District Court Ruling

Following the filing of the Green Motion July 26, 1968, 
the district court on August 23, 1968 declined to order any 
relief for the 1968-69 school year because of the imminent 
reopening of school.7 No hearing on the motion was sehed-

6 In 1960 there were 79, as compared with the present 72 all- 
white or predominantly white schools; and 44, as compared with 
the present 50 all-Negro and 17 predominantly Negro schools, 
in the Memphis system. Northcross v. Board of Educ. of Memphis, 
302 F.2d 818, 820 (6th Cir. 1962).

7 The district court deferred ordering the facilities and pupil 
surveys requested in the Motion for Further Relief pending receipt 
of briefs from respondents in support of their argument that Green 
was inapplicable. Hearings were held November 8 and 11, 1968



6

uled until after the survey report (see note 7) was filed by 
respondents on December 23, 1968. Thereafter, bearings 
were held from February 6-11, 1969; the district court’s 
opinion rendered May 15, 1969, and a formal order entered 
May 23, 1969.

The district court held that “ the existing and proposed 
plans do not have real prospects for dismantling the state- 
imposed dual system at the ‘earliest practicable date’.” 
(Infra, p. 18a). Nevertheless, the district court declined 
to void the free transfer system, even though respondents 
frankly admitted that they wished to retain free transfers 
to permit students to avoid integration if they wished to do 
so.* 8 The court continued, “ [t]he zones are in need of revi­

to determine whether respondents should be required to make the 
surveys. On November 21, 1968, the district court ordered the 
studies to be undertaken and a report thereon filed within 45 days.

8 See the Memorandum of Points and Authorities submitted by 
respondents to the district court and reprinted in the Appendix 
to petitioners’ Motion for Summary Reversal. Trial Exhibit 6, 
also reprinted in that Appendix, demonstrates that this is exactly 
how the free transfers work. The following table depicts some 
examples:

Whites Attend-
Whites Living ing School

Zone in Zone in Zone
Getwell Elementary ................ ...... - .......  47 0
Gordon Elementary ................ 130 33
Grant Elementary .................. ................ 51 0
Rozelle Elementary ................ ................ 217 98
Springdale Elementary .......... ................ 93 7
Vollentine Elementary .......... ................ 275 195
Corry Junior H igh .................. .... - ....... . 19 0
Humes Junior H igh ................ ...... - .......  289 193
Riverview Junior High .......... ................ 36 0
Northside High ........................ 124 63
Melrose High .......................... ... -...........  47 0

Negroes
Negroes Attending
Living School
in Zone in Zone

Cherokee Elementary.............. ................ 274 151
(All students not attending school within their zones attend other 
Memphis public schools). (E.g., Tr. 408)



7

sion for many purposes, including further desegregation 
where feasible” (infra, at p. 18a).9 Revised zone boundary

9 In 1964 the Court of Appeals pointed out two “obvious” ex­
amples of zones “gerrymandered to preserve a maximum amount of 
segregation” : Klondike [Negro] and Yollentine [white] elementary 
school zones (which have a mutual boundary). Norther oss v. Board 
of Educ. of Memphis, 333 F.2d at 663 (1964). Since that time no 
changes have been made in the zones (Tr. 374) and no white stu­
dents attend the Klondike school.

Most zone boundaries between identifiably white and Negro school 
zones correspond directly to the racial distribution of the city’s 
population (school boundary lines drawn by respondents follow 
historic boundary lines between white and Negro neighborhoods 
without regard to natural boundaries, capacities of schools, or any 
other criteria except race). (Tr. 40 et seq.) Cf. Henry v. Clarks- 
dale Municipal Separate School Dist., 409 F.2d 682, 687 (5th Cir.), 
cert, denied, 396 U.S. 940 (1969). (See Trial exhibits 7, 8, 9, 15, 
16, 17 and 18). Examples are as numerous as they are flagrant.

For example, the Central High School zone [89% white] is 
bounded as follows: on the south by Hamilton [all-Negro] and 
Melrose [all-Negro] ; on the west by Washington [all-Negro] and 
Northside [95% Negro]; on the north by Douglass [all-Negro]; 
and on the east by Lester [all-Negro]. The Central zone lines have 
no rational basis other than race. The zone is bisected by the fol­
lowing “natural” obstacles—in the north by the L & N railroad 
tracks and also by North Parkway, a major thoroughfare; in the 
south by the Union Pacific and L & N railroad tracks; in the west 
by Interstate Highway 255; and in the east by East Parkway, a 
major thoroughfare.

Another example is the Messick High School zone [99% white] 
which is bounded on the west by the Melrose High School zone 
[all-Negro]. The boundary separating these two zones is an irra­
tional and jagged line which follows exactly the easternmost edge 
of a Negro neighborhood.

The elementary and junior high maps are also replete with simi­
lar examples of racial gerrymandering. The district court opinion 
(infra at p. 15a) notes “some glaring islands” :

For example, Carpenter Elementary, grades 1-3, and Lester 
Elementary, Junior High and High Schools have a total of 
2396 students, all Negro. Treadwell and East High Schools 
have grades 1 through 12 and are immediately adjacent to the 
Lester-Carpenter zone. Treadwell has 2884 whites and 8 Ne­
groes. East has 1866 white students and 19 Negroes. The 
defendants point out that the Lester-Carpenter “ island” zone 
boundaries are necessary because of industrial and commercial



8

lines together with enrollment projections were to he filed 
January 1, 1970. The district court denied petitioners’ 
prayer for an injunction restraining any further school 
construction until new zone lines were formulated and 
approved, and required only a 20% system-wide assignment 
of faculty across racial lines for 1969-70.

The Rulings of the Court of Appeals

June 13, 1968, petitioners filed with the United States 
Court of Appeals for the Sixth Circuit, a Motion for Sum­
mary Reversal of the district court’s judgment. June 18, 
1968, the Court of Appeals declined to consider the motion 
until the complete transcript of testimony was filed. The 
court reporter thereafter advised the Court of Appeals, 
upon instruction of the district judge and at the request 
of petitioners’ counsel, that the transcript could not be pre­
pared until September. A  second motion renewing peti­
tioners’ request that the Court of Appeals proceed on the 
basis of the printed Appendix supplied with the motion 
and the exhibits forwarded from the district court was like­
wise denied by the Court of Appeals, although a major 
ground relied upon for summary reversal was the district 
court’s failure to require new zone lines to be effectuated 
for 1969-70 after finding in May, 1969 that “ the existing 
and proposed plans do not have real prospects for dismant­
ling the state-imposed dual system at the ‘earliest practi­
cable date’ ” (infra at p. 18a).

Following this Court’s decision in Alexander v. Holmes 
County Bd. of Educ., 396 U.S. 19 (1969), petitioners filed 
with the Court of Appeals on November 3, 1969, a Motion 
to Require Adoption of a Unitary System Now (reprinted

barriers, major thoroughfares and railroad tracks. The plain­
tiffs point out that these same tracks bisect other zones in other 
parts of the city.



9

at pp. 32a-35a infra). November 13, 1969, petitioners 
filed a Motion to Convene an Emergency Panel of the Sixth 
Circuit (reprinted at pp. 36a-38a infra) to hear and deter­
mine the Alexander motion. The following day, the tran­
script was received by the Court of Appeals; the convening 
of an emergency panel was denied and the Alexander motion 
passed for consideration by the regular panel of the Court 
which would hear the appeal, which was then calendared 
for argument December 17, 1969.

Following oral argument, the judgment of the Court of 
Appeals was issued December 19, 1969, remanding the case 
to the district court for further consideration of the Motion 
for Further Relief and the “plan” 10 or any amendment 
thereto to be presented to the district court as required by 
its order of May 23,1969:

It appears to this Court that the imminence of the 
presentation and consideration by the District Judge of 
the proposed plan to be submitted on or before January 
1, 1970, suggests the impracticality of this Court at­
tempting to consider precipitously the various claims 
asserted by plaintiffs-appellants in their appeal, and 
motions. This Court has been familiar with the prob­
lems of desegregation in the schools of the City of Mem­
phis since 1962, when it had before it the first judgment 
commanding desegregation, entered by the District 
Court on May 2, 1961. From review of this litigation 
and its underlying factual situation, it is satisfied that 
there is no need at this time for precititous [sic] action. 
Therefore, no further order need be entered in this 
Court until the United States District Court has had

10 The district court did not require submission of a new plan, 
but merely revised zone boundary lines together with enrollment 
projections. It further did not call for any changes to be made 
until the 1970-71 school year.



10

submitted to it the ordered plan, and has had oppor­
tunity to consider and act upon it. {Infra, p. 3a) 
(emphasis supplied).

Petitioners then filed a Motion for Injunction Pending 
Certiorari, praying that the Court of Appeals, pursuant to 
Alexander and to the December 13,1969 order of this Court 
granting temporary relief in Carter, direct the district court 
to implement changes during the second semester of the 
current school year. January 12,1970, the Court of Appeals 
denied the Motion for Injunction:

Appellants support their motion with citation of au­
thorities which they assert require the action they ask 
us to take, viz: Alexander v. Holmes [County] Board 
of Education, 398 U.S. 19; Carter v. West Feliciana
Parish School Board No. 944, — —• U .S.------, December
13, 1969, 38 U.S.L. Week 3220; Singleton v. Jackson
Municipal Separate School District, ------  F (2) -——
(5th Cir. 1969, No. 26,285); Nesbit v. The Statesville 
City Board of Education, ■—-—■ F(2) ——  (4th Cir. 1969, 
No. 13,229).

To the extent that the relevant factual context of the 
above cases is disclosed by the opinions available to us, 
we conclude that they are not analogous to the case 
before us. We are satisfied that the respondent Board 
of Education of Memphis is not now operating a “ dual 
school system” and has, subject to complying with the 
present commands of the District Judge, converted its 
pre-Brown dual system into a unitary system “within



11

which no person is to he effectively excluded because
of race or color.” (Infra at pp. 6a-7a),u

11 Compare the findings of fact made by the district judge (infra 
at p. 18a) :

In this cause the Court finds that the defendant Board has 
acted in good faith as it interpreted its burden to desegregate 
the schools in its system. However, the existing and proposed 
plans do not have real prospects for dismantling the state- 
imposed dual system at the “earliest practicable date.”

In dismantling the former state-imposed dual system at the 
earliest practicable date the Board should undertake to remove 
racial discrimination in all schools, not just the schools in the 
inner city.

The zones are in need of revision for many purposes including 
further desegregation where feasible.



12

REASONS FOR GRANTING THE WRIT

I.
The Failure of the Court of Appeals to Require any 

Action to Eliminate the Dual School System During the 
Current School Year Conflicts With This Court’ s Re­
quirement in Alexander and Carter That Every School 
District Terminate Dual School Systems at Once and 
Operate Now and Hereafter Only Unitary Schools.

A. The Decision of the Court of Appeals Remanding 
the Case to the District Court With the Specific 
Direction That There Was No Need for Precipitous 
Action Conflicts With This Court’s Decision in 
Alexander and Carter.

In Alexander and Carter this Court refused to permit 
delays in the complete conversion of school districts in 
Mississippi, Alabama, Georgia, Florida and Louisiana into 
unitary systems. One of the cases included in the Carter 
decision involved Marshall County, Mississippi, which ad­
joins the county in which the Memphis school system is 
located. As in Alexander, “ the question presented is one 
of paramount importance involving as it does the denial 
of fundamental rights to many thousands of school children 
who are presently attending [Memphis, Tennessee] schools 
under segregated conditions contrary to the applicable 
decisions of this Court. . . .” But by accident of geography, 
this case falls within the jurisdiction of the Sixth. Circuit 
Court of Appeals.

The rule in the Sixth Circuit for Memphis is “go slow.” 
The district court is told he should not act “precipitously” 
in deciding the case. The rule is stated in the face of this 
Court’s most recent decisions. The practice is far worse.



13

The Green motion filed in Jnne of 1968 was not decided 
by the district court for almost a year and the denial by 
the Sixth Circuit of a hearing in a manner permitted by 
Rule 30(f) of the Federal Rules of Appellate Procedure 
for an additional six months makes a mockery out of the 
grant of Constitutional rights to Negro children. In Green 
v. County School Board, 391 U.S. 430 (1968) this Court 
spoke of such delay.

Such delays are no longer tolerable, for “ the govern­
ing constitutional principles no longer bear the imprint 
of newly enunciated doctrine.” Watson v. City of 
Memphis, 373 U.S. 527 at 529.

The Sixth Circuit in its December 19, 1969 order made 
no mention of this Court’s decision in Alexander, supra, 
despite petitioners’ Alexander motion and their Reply 
Brief, which also fully discussed this Court’s December 
13, 1969 order in Carter v. West Feliciana Parish School 
Bd. and the ruling of the Fourth Circuit in Nesbit v. States­
ville City Bd. of Educ., No. 13,292 (December 2, 1969) 
(en banc).

If the practice and procedure followed in this cause is 
considered in the context of the Sixth Circuit’s decision 
that there should be no precipitous action, it will put the 
district court below and all other district courts in the 
Sixth Circuit in the impossible situation of choosing be­
tween (1) the clear and precise decisions from this Court 
establishing the pendente lite relief principle for school 
desegregation cases and requiring that such cases proceed 
on an expedited basis in all courts without formalistic 
and technical delays which have the effect, as here, of a 
denial of relief, and (2) the subsequent decision of the 
Sixth Circuit Court of Appeals to the opposite effect. This 
is a case where there is no dispute that segregation was a



14

requirement of Tennessee state law and where the school 
district in question is less than four miles from another 
school district (Marshall County, Mississippi) in which 
this Court on January 14, 1970 ordered an end to all delay 
and the full desegregation of faculty and pupils no later 
than February 1, 1970.

B. The Conflict Between the Decision of the Sixth Circuit 
and Decisions of the Fourth, Fifth and Eighth Circuits 
Implementing Alexander Mandates Review by This 
Court.

On December 2,1969 the Court of Appeals for the Fourth 
Circuit, sitting en banc, unanimously arrived at an inter­
pretation of this Court’s decision in Alexander which con­
flicts squarely with the interpretation and actions of the 
Court below. In Nesbit v. Statesville City Bd. of Educ., 
No. 13,292 (December 2, 1969), the Fourth Circuit ordered 
school districts to submit unitary plans by December 8, 
1969 for complete implementation no later than January 
31, 1970.

The clear mandate of the [Supreme] Court is im­
mediacy. Further delays will not be tolerated in this 
Circuit. [Slip opinion at p. 2].

On January 19, 1970, that Circuit in Stanley v. Darling­
ton County School Dist., No. 13,904, reaffirmed its Nesbit 
holding and, citing this Court’s January 14, 1970 holding 
in Carter, said:

These decisions leave us with no discretion to con­
sider delays in pupil integregation until September 
1970. Whatever the state of progress in a particular 
school district and whatever the disruption which will 
be occasioned by the immediate reassignment of teach­
ers and pupils in mid-year, there remains no judicial 
discretion to postpone immediate implementation of



15

the constitutional principles as announced in Green v. 
County School Bd. of New Kent County, 391 U.S. 430; 
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 
(Oct. 19,1969); Carter v. West Feliciana Parish School 
Bd. -------U.S. -------  (Jan. 14, 1970).12

The Fifth Circuit on January 21, 1970 entered a brief 
Order following reversal by this Court in Carter, adopting 
the January 14, 1970 opinion of this Court as its opinion 
on remand.

The Eighth Circuit in Christian v. Board of Educ. of 
Strong School Hist. No. 83, No. 20,038 (December 8, 1969), 
applied the Alexander rule in granting summary reversal 
and ordering the school district to file a plan by January 7, 
1970 for complete desegregation at the beginning of the 
second semester of the current school year.

While the conflict between the decisions of this Court 
and the Sixth Circuit Court of Appeals provides a com­
pelling case for action by this Court, the added and tradi­
tional ground of conflicting decisions among Courts of 
Appeals takes on dramatic importance here because of the 
nature of the constitutional rights involved and the proxi­
mity of school districts operating under exactly opposite 
determinations of the constitutional requirements.13 A 
Negro child in Marshall County, Mississippi is granted 
his constitutional rights by order of this Court, while a 
Negro child across the county (and State) line a few miles 
away is denied these rights by the decision of a Court 
of Appeals. In view of the possible effect on all school 
districts, and in particular those within the Sixth Circuit, 
this Court cannot allow such different treatment to go 
uncorrected.

12 The entire order is reprinted infra at pp. 39a-42a.
18 See Rule 19(1) (b) of the Rules of this Court.



16

In Brown v. Board of Educ., 349 U.S. 294, 300 (1955), 
this Court enunciated a standard of action at “ the earliest 
practicable date.”  Subsequent to Alexander, the Fifth 
Circuit in its Singleton en banc opinion delayed pupil in­
tegration until September, 1970 based upon a standard of 
“ the earliest feasible date.”  Although this Court made 
clear in Carter that the rule must be Alexander’s—“ at once” 
and “now and hereafter”—the one year delay in the district 
court, the six month delay in the Court of Appeals, and 
the December 19, 1969 order establish a Sixth Circuit 
standard of “no precipitous action”  which if unreversed 
renders Alexander and Carter nugatory within this Circuit.

II.

The Court of Appeals’ January 19, 1970 Ruling That 
Memphis Now Operates a Unitary School System Directly 
Contradicts the Findings of the District Court and Con­
flicts With the Decisions of This Court From Brown to 
Carter.

On May 15, 1969, the district court found

that the defendant [Memphis] Board has acted in good 
faith as it interpreted its burden to desegregate the 
schools in its system. However, the existing and pro­
posed plans do not have real prospects for dismantling 
the state-imposed dual system at the “ earliest prac­
ticable date.”

(Infra at p. 18a) (emphasis supplied). Throughout the 
opinion, the district court characterizes Memphis as a 
“ state-imposed dual system” which has not yet been dis­
established, explicitly rejecting the claims of respondents 
that complete compliance with constitutional commands 
has been achieved:



17

The defendant has compiled graphs and charts which 
indicate that 47,586 pupils within the system are at­
tending schools with mixed racial enrollments. An 
examination of the enrollment figures shows that in 
some cases this includes a school wherein the ratio 
will be 1 white to 1822 Negro pupils, as in the case 
of Lincoln Junior High, and 1 Negro to 876 white 
pupils, as in the case of Treadwell Junior High. 
During the current year 71.5% of the Negroes attend 
all Negro schools.

(Infra at p. 11a).. Petitioners’ expert witness noted, for 
example, that nearly all Memphis high schools were either 
attended exclusively by students of one race or had but 
six or seven pupils of the minority race among total enroll­
ments of 700 to 1000 pupils. The only exceptions were un­
zoned Memphis Technical High, Central High and North- 
side High, which was 4.8% white (Tr. 89-90).14 In 1968-69, 
while 71.5% of Memphis’ Negro pupils were in all-black 
schools, only 2.7% were in predominantly white schools, 
and only 2.2% of the white pupils were in predominantly 
Negro schools (Tr. 248).15 16

14 The district court opinion stated that “ [a]s of the current
school year, 1968-69, there are presently 35 all white schools, 50 all 
Negro schools, 47 predominantly white schools and 17 predomi­
nantly Negro schools.” (Infra at p. 10a).

16 The Superintendent decried this emphasis upon “statistics,” 
and maintained that one student of a minority race among one 
thousand of the majority race made a facility a desegregated school 
(Tr. 340-42, 382). Compare Green v. County School Bd. of New 
Kent County, supra; Jackson v. Marvell School Dist. No. 22, 416 
F.2d 380, 384 (8th Cir. 1969) :

“ The admittance of 36 white students into a formerly all-Negro 
school still attended by 660 Negroes cannot be said to have 
the effect of casting off the school’s racially identifiable cloak.”



18

Other indicia of a continuing dual system were noted by 
petitioners’ expert witness and xhe district court. From 
a comparison of the racial breakdown of pupils residing 
in adjacent zones, petitioners’ witness concluded that the 
existing zone lines followed traditional boundaries between 
Negro and white neighborhoods (Tr. 40 et seq.), and the 
district court recognized the pattern:

For example, Carpenter Elementary, grades 1-3, and 
Lester Elementary, Junior High and High Schools 
have grades 1 through 12 and are immediately adjacent 
to the Lester-Carpenter zone. Treadwell has 2884 
whites and 8 Negroes. East has 1866 white students 
and 19 Negroes. The defendants point out that the 
Lester-Carpenter “island” zone boundaries are neces­
sary because of industrial and commercial barriers, 
major thoroughfares and railroad tracks. The plain­
tiffs point out that these same tracks bisect other 
zones in other parts of the city.

(Infra at p. 15a). As of January 17, 1969, only 441% 
of the 5,000 teachers in the system were in minority assign­
ments, and many of these were not regular classroom 
teachers but those engaged in special programs (infra at 
p. 16a).

The district court concluded that in fact Memphis was 
not a unitary school system, and that further desegregation 
was required (although that court rejected some of peti­
tioners’ proposals to increase desegregation):

In dismantling the former state-imposed dual system 
at the earliest practicable date the Board should under­
take to remove racial discrimination in all schools, not 
just the schools in the inner city. . . .

The zones are in need of revision for many purposes 
including further desegregation where feasible. . . .



19

the Board should appoint a full time Director of Dese­
gregation who shall be charged with investigating and 
recommending to the Board ways and means of assist­
ing the Board in its affirmative duty to convert to a 
unitary system in which racial discrimination will be 
eliminated root and branch. . . .

The defendant Board in this case shall adopt a plan 
of faculty desegregation whereby supervisors, prin­
cipals, teachers and other faculty personnel shall be 
employed, promoted and assigned in furtherance of a 
goal of removing the racial identity of each school, 
but no teachers shall be discharged from the system 
to correct a racial imbalance.

An interim target for this goal shall be that at least 
20% of the teachers in the system will be assigned 
to racially minority faculty positions in the year 1969- 
70. This percentage shall be systemwide and shall not 
necessarily require 20% in each school in 1969-70.16

(Infra at pp. 18a-22a).
Nevertheless, the Court of Appeals made no ruling on 

petitioners’ claims that the district court should have voided 
Memphis’ free transfer provision,17 required immediate re­

16 No further faculty desegregation has yet been required by the 
district court.

17 Petitioners’ expert witness noted the general pattern that in 
zones with substantial Negro pupil resident population, the white 
student enrollment in schools located in those zones was consider­
ably less than the white pupil resident population. See n. 8 supra. 
The district court declined to limit transfers to those which would 
increase desegregation because it found the influence of the free 
transfer provision upon the racial composition of the schools to 
be equivocal. Petitioners argued below that the free transfer provi­
sion facilitates avoidance of integration by students and parents 
opposed to it. Compare Monroe v. Board of Comm’rs of Jackson, 
391 U.S. 450 (1968).



20

drawing of zone lines,18 accelerated faculty desegregation 
and adopted the suggestions of petitioners’ expert witness 
for interim steps to substantially increase desegregation 
in the Memphis school system.19 In response to petitioners’ 
argument20 that these things were required, and were re­
quired now by the Alexander and Carter decisions, the 
Sixth Circuit in its January 12, 1970 order held these de~

18 In 1964 the Sixth Circuit found substantial evidence that the 
Klondike and Vollentine zones were “gerrymandered to preserve 
a maximum amount of segregation,” required them redrawn and 
all zones scrutinized for the same purpose. 333 F.2d at 664. No 
change was made in the Klondike-Vollentine boundary (Tr. 374) 
nor, generally, in any of the zone lines (Tr. 150, 224-25). The dis­
trict court found rezoning necessary (infra at p. 18a) but delayed 
requiring submission of new zone lines until January, 1970, setting 
no date for implementation of new zone lines.

19 Petitioners’ expert witness suggested that a detailed study 
carried out over some time would result in long-range plans to 
increase desegregation in Memphis (Tr. 104-07) but that there were 
a number of feasible interim alternatives which could have been 
effectuated in the fall of 1969 (Tr. 98-104) to move towards the 
goal of a completely unitary system: (1) redrawing of zone boun­
dary lines at all levels (see also Tr. 49), (2) cancellation of the 
open transfer policy, (3) institution of a majority-to-minority 
transfer only, (4) suspension of all planned construction pending 
restudy to determine consonance with desegregation, (5) increased 
faculty desegregation—at least 30% in minority positions for 
1969-70, (6) public relations programs to promote acceptance of 
more than token desegregation, (7) assistance of the University of 
Tennessee Title IV Center, and (8) pairings of schools to increase 
desegregation (Tr. 61-65).

20 The Sixth Circuit refers in its order to the suggestion during 
oral argument that one measure of whether a unitary school system 
had been achieved was the degree to which each school has a pupil 
population racially reflective of the total system pupil population:

We have expressed our own view that such a formula for racial 
composition of all of today’s public schools is not required to 
meet the requirement of a unitary system.

(Infra at p. 7a). This hardly compels the conclusion, however,



21

cisions “not analogous” because “ respondent Board of 
Education of Memphis is not now operating a ‘dual school 
system’ . . The genesis of this holding is difficult to 
discern. On December 19, 1969, the Sixth Circuit had re­
manded the case to the district court without impeaching 
the lower court’s finding that there was still a dual school 
system in Memphis, advising only that the facts did not, in 
the Sixth Circuit’s view, call for “precipitous action.” Cer­
tainly the 1969-70 enrollment statistics presented to the 
Court of Appeals prior to its first ruling indicated no change 
from 1968-69. In fact, they show (infra at pp. 24a-31a) 
less desegregation than the previous year. 115,748, or 
88.4% of Memphis’ 130,930 students in grades 1-12 attend 
schools enrolling less than 10% students of the opposite 
race. Only 2,601 (3.5%) of 70,925 Negro students, attend 
predominantly white schools; 49,821 (70.2%) attend all- 
Negro schools and 65,927 (93%) attend schools which are 
more than 90% Negro. The number of white students at­
tending predominantly Negro schools has declined to 859 
(1.4% of 60,005 white pupils). Integration in Memphis is 
still largely token: 55,037, or 88%, of the 68,091 students 
whom respondents claim attend integrated schools attend 
schools enrolling less than 10% students of the opposite 
race. 82.8% of the white students and 76.5% of the Negro 
students in what respondents term “ integrated” schools 
attend classes with less than 10% students of the opposite 
race.

These figures hardly call for “no precipitous action,” let 
alone “no action at all.” Yet that is exactly the implication

that no further desegregation at all is required in Memphis.
Petitioners also argued below, as they do here, that 93% of all 

Negro students attending Negro schools is a certain indicator that 
a unitary school system has not been achieved.



22

of the holding below that Memphis has achieved a unitary 
school system.21

Seven years ago this Court told the Negro citizens of 
Memphis that

[t]he [constitutional] rights here asserted are, like all 
such rights, present rights; they are not merely hopes 
to some future enjoyment of some formalistic consti­
tutional promise. The basic guarantees of our Consti­
tution are warrants for the here and now and, unless 
there is an overwhelmingly compelling reason, they 
are to be promptly fulfilled. The second Brown deci­
sion is but a narrowly drawn, and carefully limited, 
qualification upon usual precepts o f constitutional ad­
judication and is not to be unnecessarily expanded in 
application.

Watson v. City of Memphis, 373 U.S. 526, 533 (1963) (em­
phasis in original). Alexander and Carter decisively elimi­
nated even that narrow and limited qualification. Yet if 
the determination of the Sixth Circuit;—that a state-created 
dual school system, is converted to a unitary system despite 
assignment of 93% of its Negro students to schools which 
are more than 90% Negro—is permitted to stand, the dis­
trict court in this case and every other district court in this 
Circuit will be entirely without guidance. The entire history 
of school desegregation from Brown to Carter will have 
been for naught in the Sixth Circuit. The ten years of liti­
gation by petitioners seeking to enforce the constitutional 
rights of Negro pupils in the City of Memphis will have

21 The Sixth Circuit has consistently been apart from other cir­
cuits in its application of Green and other cases which state a re­
quirement of affirmative action on the part of school boards to 
eliminate all aspects of the dual system so that school shall no 
longer be racially identifiable. See, e.g., Goss v. Board of Educ. of 
Knoxville, 406 F.2d 1183 (6th Cir. 1969).



23

been an expensive exercise in futility, yet another example 
of the law’s promise broken. The fundamental error below 
as well as the fulfilment of the promise of Brown and of 
Alexander require an order providing for effective proce­
dures to insure action now to establish a unitary school 
system in Memphis.

CONCLUSION

Petitioners respectfully pray that a writ of certiorari to 
the United States Court of Appeals for the Sixth Circuit 
be issued, that the judgment below be summarily reversed 
with direction to require respondents to prepare, with the 
assistance of HEW or the HEW-funded University of 
Tennessee Title IV  Center, a plan of complete pupil and 
faculty integration affecting all phases of the operations 
of the Memphis public school system to be implemented 
during the 1969-70 school year immediately following the 
order of this Court.

Respectfully submitted,

Louis R . L ucas

Ratner, Sugarmon, Lucas 
and Willis

525 Commerce Title Building 
Memphis, Tennessee

J ack  G-reexberg

J ames M. N abrit , III
N orman  J. Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



APPENDIX



UNITED STATES COURT OF APPEALS 

F ob th e  S ix t h  C ircuit  

No. 19,993

Court of Appeals’ December 19, 1969 Order

D eborah A. N orthcross, et al.,

Plaintiffs-Appellants 
v.

B oard of E ducation  of the Memphis, 
Tennessee, City Schools,

Defendants-Appellees.

Order

Before W rick  and Celebrezze, Circuit Judges, and 
O ’S u llivan , Senior Circuit Judge.

T his  cause is before this Court upon the appeal of plain- 
tiffs-appellants from an order and judgment of the United 
States District Court for the Western District of Tennes­
see, Western Division, and upon motions of plaintiffs- 
appellants denominated Motion for Summary Reversal 
and Motion to Require Adoption of Unitary System Now. 
These Motions requested us to hear the appeal and said 
motions without waiting the filing in this Court of a full 
transcript of the proceedings underlying the order from 
which the appeal is taken. However, this Court, on its own 
motion, advanced the hearing of the cause and it was sub­
mitted to a panel of this Court on December 17, 1969, upon 
briefs, oral argument and a partial transcript.

la



2a

This case has been before us previously on two occasions. 
In NortJicross v. Board of Ed. of City of Memphis, 302 
F(2) 818 (6th Cir. 1962), cert, denied, 370 U.S. 944, we 
held that the Tennessee Pupil Assignment Law was in­
effective as a desegregation plan and restrained the Board 
from operating a bi-racial school system in Memphis, or 
in the alternative to adopt a plan looking toward the re­
organization of the schools and to retain jurisdiction.

Upon the remand, the District Court ordered desegrega­
tion of the Memphis Schools in accordance with a plan of 
desegregation. On appeal, we held the transfer provision 
of the plan invalid, and required the Board to justify all 
existing zone lines. Northcross v. Board of Ed. of City 
of Memphis, 333 F (2) 661 (6th Cir. 1964). Subsequent 
thereto the District Court approved a modified plan for 
desegregation. Other proceedings were had, including con­
sideration of a Motion for Further Relief, upon which the 
order before us on appeal was entered.

The District Judge, in an opinion covering fourteen pages 
of the record, gave consideration to the application for fur­
ther relief by the plaintiffs-appellants, and in his opinion 
directed that further steps he taken for improvement of 
the progress of desegregation in the schools of the City 
of Memphis. His opinion, however, states:

“In this cause the Court finds that the defendant Board 
has acted in good faith as it interpreted its burden 
to desegregate the schools in its system.”

His opinion further requires that steps he taken to fully 
comply with the requirements of desegregation as to both 
pupils and faculty. His opinion calls for the appointment 
by the School Board of an administrative officer designated 
Director of Desegregation, to direct and cooperate in the

Court of Appeals’ December 19, 1969 Order



3a

carrying* out of a supplemental plan heretofore proposed 
by the Memphis Board of Education. His opinion further 
commands:

“Prior to January 1, 1970, the Board will file in this 
cause maps showing the revised zone boundary lines 
and will file enrollment figures by race of the pupils 
actually attending the schools as of the time of the 
report and enrollment figures by race of the pupils 
who live in the proposed revised zones. The Court 
will then consider the adequacy of the revised zone 
boundaries and will reconsider the adequacy of the 
transfer plan for future years in accordance with the 
holding of the Supreme Court that district courts 
should retain jurisdiction to insure that a constitu­
tionally acceptable plan is operated ‘so that the goal 
of a desegregated, non-raeially operated school system 
is rapidly and finally achieved.’ ”

It appears to this Court that the imminence of the 
presentation and consideration by the District Judge of 
the proposed plan to be submitted on or before January 
1, 1970, suggests the impracticality of this Court attempt­
ing at this time to consider precipitously the various claims 
asserted by plaintiffs-appellants in their appeal, and mo­
tions. This Court has been familiar with the problems of 
desegregation in the schools of Memphis since 1962, when 
it had before it the first judgment commanding desegre­
gation, entered by the District Court on May 2, 1961. From 
review of this litigation and its underlying factual situa­
tion, it is satisfied that there is no need at this time for 
precititous action. Therefore, no further order need be 
entered in this Court until the United States District Court 
has had submitted to it the ordered plan, and has had 
opportunity to consider and act upon it.

Court of Appeals’ December 19, 1969 Order



4a

NOW, THEREFORE, IT IS HEREBY ORDERED that this Cause
be, and it is, hereby remanded to the United States District 
Court for the Western District of Tennessee, Western 
Division, for further consideration of the plaintiff s-appel- 
lants’ petition for further relief, and the plan, or any 
amendment thereto, to be presented to the District Court 
as required by its order of May 23, last.

Entered by order of the Court.

Court of Appeals’ December 19, 1969 Order

/ s /  Carl  W. R etjss, 
Carl W. Reuss

Clerk



5a

UNITED STATES COURT OF APPEALS 

F oe th e  S ix t h  Circuit  

No. 19,993

Court of Appeals’ January 12, 1970 Order

D eborah A. N oethcross, et at.,

Plaintiffs-Appellants,

B oard of E ducation o f  the Memphis,
Tennessee, City Schools,

Defendants-Appellees.

Order

Before W eick  and Celebrezze, Circuit Judges, and 
O’S u llivan , Senior Circuit Judge.

T h is  Cause is now before this Court upon appellants’ 
Motion for Injunction Pending Certiorari. Such pleading 
evidences plaintiffs’ purpose to apply to the United States 
Supreme Court for a writ of certiorari to review an order 
of this Court entered in this cause on December 19, last. 
This litigation relates to the sufficiency of desegregation of 
the public schools of Memphis, Tennessee. By our order of 
December 19, we remanded this case to the United States 
District Court for the Western District of Tennessee. Such 
remand was for the purpose of providing District Judge 
Robert M. McRae, Jr., with opportunity to consider whether 
a plan, heretofore required by him to be filed on or before 
January 1, 1970, would conform to the commands of an 
order and opinion of said District Judge relating to further



6 a

desegregation of the Memphis schools. Such order and 
opinion are the subject of the appeal disposed of by our 
remand.

The motion now before us asks the immediate issuance 
of an injunction which will require:

“1) The District Court to order the appellee City of 
Memphis Board of Education to prepare and file on or 
before January 5, 1970, in addition to the adjusted 
zone lines it is presently required to file, a plan for 
the operation of the City of Memphis public schools 
as a unitary system during the current 1969-70 school 
year.

“2) Appellants further move the Court that it issue its 
injunction requiring the District Court to hold hear­
ings on any objections to the proposed plan no later 
than January 9, 1970 ; requiring it to issue its decision 
no later than January 14, 1970, with same to be filed 
with the Clerk of the Court of Appeals and providing 
for review by this Court upon motion of the parties 
made within ten days of entry of the order on such 
papers as are then available in the record of the Dis­
trict Court.”

Appellants support their motion with citation of authori­
ties which they assert require the action they ask us to take, 
v iz : Alexander v. Holmes Board of Education, 398 U.S. 19; 
Carter v. West Feliciana Parish School Board No. 944,
—  U.S. ------ , December 13, 1969, 38 U.S.L. Week 3220;
Singleton v. Jackson Municipal Separate School District, 
—— F(2) — — (5th Cir. 1969, No. 26,285); Nesbit v. The
Statesville City Board of Education,------ F (2) ——  (4th
Cir. 1969, No. 13,229).

Court of Appeals’ January 12, 1970 Order



7a

To the extent that the relevant factual context of the 
above cases is disclosed by the opinions available to ns, 
we conclude that they are not analogous to the case before 
us. We are satisfied that the respondent Board of Educa­
tion of Memphis is not now operating a “ dual school sys­
tem” and has, subject to complying with the present 
commands of the District Judge, converted its pre-Brown 
dual system into a unitary system “within which no person 
is to be effectively excluded because of race or color.” In 
Alexander v. Holmes Board of Education, supra, the Su­
preme Court exposed the question then before it as 
involving:

“ the denial of fundamental rights to many thousands of 
school children who are presently attending Mississippi 
schools under segregated conditions contrary to the 
applicable decisions of this Court.”

This quotation is not descriptive of the present situation 
of Memphis. For the school year 1969-70, there are approx­
imately 134,000 children enrolled in the schools of Memphis, 
of which approximately 60,000 are white and 74,000 are 
Negroes. Upon the oral argument of this appeal, we asked 
counsel for plaintiffs to advise what he considered would 
be the “unitary system” that should be forthwith accom­
plished in Memphis. He replied that such a system would 
require that in every public school in Memphis there would 
have to be 55% Negroes and 45% whites. Departures of 
5% to 10% from such rule would be tolerated. The United 
States Supreme Court has not announced that such a for­
mula is the only way to accomplish a “unitary system” . 
We have expressed our own view that such a formula for 
racial composition of all of today’s public schools is not 
required to meet the requirement of a unitary system. Deal

Court o f Appeals’ January 12, 1970 Order



8a.

v. Cincinnati Board of Education (Ohio schools) 369 F(2) 
55 (6th Cir. 1966), cert, denied, 389 U.S. 847 (1967); Mapp 
v. Board of Education, (Tennessee schools), 373 F(2) 75, 
78 (6th Cir. 1967); Goss v. Knoxville Board of Education 
fTenn. schools) 406 F (2) 1183 (6th Cir. 1969); Deal v.
Cmcinnati Board of Education, (Ohio schools) ------ F (2)
------  (6th Cir. 1969).

The District Judge’s opinion in this case evidences his 
awareness of today’s requirements for school desegrega­
tion and his purpose to require strict obedience by the 
Memphis Board of Education to all of such requirements. 
"We are advised that the plan which he required to be filed 
by January 1, 1970, is now before him. We are satisfied 
that he will consider it with appropriate dispatch, to the 
end that any deficiencies in the plan now in operation in 
Memphis will be corrected.

Our own familiarity with the progress of desegregation 
in the Memphis schools and our confidence in the District 
Judge to whom we have remanded this litigation suggests 
that it is not now needed that we issue the injunction asked.

The Motion for Injunction Pending Certiorari is denied.
Entered by order of the Court.

Carl W. R euss

Clerk

Court of Appeals’ January 12, 1970 Order



I n  the

UNITED STATES DISTRICT COURT 

F or th e  W estern D istrict of T ennessee, 

W estern D ivision  

No. 3931— Civil

District Court’s May 15, 1969 Opinion

D eborah A. N orthcross, et al.,

vs.
Plaintiffs,

B oard of E ducation  of the 
M em ph is  C ity  S chools, et al.,

Defendants.

Opinion

The plaintiffs in this cause filed a Motion for Further 
Relief based upon a ruling of the Supreme Court in Green 
v. School Board of New Kent County, Virginia, 391 U.S. 
430; Raney v. Board of Education, Gould School Distrct, 
391 U.S. 443; and Monroe v. Board of Commissioners of 
Jackson, Tennessee, 391 U.S. 450, all dated May 27, 1968. 
Plaintiffs sought by their motion the cancellation of trans­
fers and the requirement of additional desegregation of 
faculty members for the 1968-69 school year, an order of 
the court requiring a survey and report and a modification 
of the plan of desegregation heretofore entered in this cause 
on July 29, 1966. The application for immediate relief per­
taining to the 1968-69 school year was heard and ruled 
upon by the Honorable Bailey Brown, Chief Judge of this



10a

district. On November 8, 1968, a further hearing was had 
and this Court ordered the defendants to compile and fur­
nish a report for the Court's further consideration con­
cerning the plan of desegregation of the defendants. After 
the report was filed, the Court conducted a three-day hear­
ing on the adequacy of the existing plan and proposed 
modification thereof. Proof was offered by the plaintiffs 
wherein it was asserted that the defendants have not and, 
under the existing plan, would not perform their affirmative 
duty of desegregating the former dual system of schools 
as required by the Green, Raney and Monroe cases.

The defendant School Board is elected by the voters in 
the City of Memphis to operate a school system which 
presently has an enrollment of 123,280 students; 65,170 of 
them are Negro and 58,110 are white. It operates a total 
of 149 elementary, junior high and high schools and it 
employs approximately 5200 teachers. The defendant school 
system is one of the largest single systems in the United 
States. By some standards it is considered twelfth in the 
nation. The instant suit was filed in March 1960 and there 
have been numerous proceedings in both the District Court 
and the Court of Appeals pertaining to this case. The last 
order in the cause before the present motion was filed was 
entered on July 29, 1966. This provided for a plan of 
desegregation which divided the defendant system into 
separate geographic zones at the elementary, junior high 
and high school levels. Pupils within the system have 
been assigned to the respective zones and have been allowed 
to transfer under a system whereby free transfers are per­
mitted subject to space in the respective schools. As of the 
current school year, 1968-69, there are presently 35 all white 
schools, 50 all Negro schools, 47 predominantly white 
schools and 17 predominantly Negro schools. This is

District Court’s May 15, 1969 Opinion



11a

based upon information furnished by the defendant school 
system as set forth in Trial Exhibit #6, wherein the cur­
rent enrollment and pupil population based upon students 
residing in each attendance zone is set forth. For conven­
ience of the Court, this was compiled on the basis of ele­
mentary schools, junior high schools and high schools. For 
promotion and record keeping purposes the system operates 
an elementary school of six grades, junior high of three 
grades and high school of three grades.

The defendant has compiled graphs and charts which 
indicate that 47,586 pupils within the system are attending 
schools with mixed racial enrollments. An examination of 
the enrollment figures shows that in some cases this in­
cludes a school wherein the ratio will be 1 white to 1822 
Negro pupils, as in the case of Lincoln Junior High, and 
1 Negro to 876 white pupils, as in the case of Treadwell 
Junior High. During the current year 71.5% of the Negroes 
attend all Negro schools. In certain schools within the 
system there is a more equal mixing of the races, as in the 
case of Pope Elementary School, where the enrollment 
indicates there are 325 white pupils and 372 Negro pupils. 
It is interesting to note that pupils who reside in this zone 
number 230 white pupils and 256 Negro pupils. The proof, 
including maps which reflect the racial residential concen­
trations in the City of Memphis, shows that the Negro 
population is heavily concentrated in the older parts of 
the city and generally in a westwardly direction. Very few 
white citizens reside in these areas. In the extreme north­
ern, eastern and southern portions of the city the racial 
concentration of the residents is overwhelmingly white. 
Within the geographic center of the city there is a pre­
dominantly white area ringed by mixed or Negro neighbor­
hoods. W ithin this center area are located the more de­

District Court’s May 15, 1969 Opinion



12a

segregated schools, including Technical High School which 
has the highest high school ratio of mixed enrollment.

The system does not furnish transportation for its pupils 
except in unusual circumstances. The various buildings 
have been located on a neighborhood plan whereby an 
attempt has been made to provide for every student in the 
city a school as conveniently located as possible, taking 
into consideration such factors as the age of the students, 
natural boundaries in the form of major thoroughfares and 
other relevant factors.

The testimony reflects that the system is bussing some 
white students to overcome temporary problems. In the 
southeastern portion of the city some high school students 
have been bussed in a relatively new zone during the 
establishment of a new school in which a new grade has 
been added each year. This bussing will be complete this 
year. In the northwestern portion of the city some students 
in an all white elementary school zone are bussed to avoid 
a hazardous railroad crossing. This will be discontinued 
when an overpass is available for the use of those young 
pupils.

The system has no power to impose taxes. Its funds 
for operating expenses and capital improvements must 
be allocated by the City Council. Therefore, the Board is 
competing with all other phases of the city government 
for its necessary funds.

The system has been and is faced with the problem of 
providing school facilities to students who live in newly 
annexed areas wrhich wrere formerly located in Shelby 
County outside the city limits. This usually requires new 
construction because the County system provides trans­
portation for some of its students.

A  plan which would require the defendants in this cause 
to provide transportation on a system-wide basis in order

District Court’s May 15, 1969 Opinion



13a

to effectuate substantial desegregation is not economically 
feasible. However, this Court is of the opinion that bussing 
which would result in further desegregation would be ap­
propriate in preference to permanent additions to schools 
when population shifts have created or will likely create 
under capacity schools in one zone and over crowded 
schools in other zones.

The proof reflects that G-etwell Elementary School is a 
school presently attended by 50 Negroes and no whites. 
It is in a recently annexed area in the southeastern portion 
of the city which is not densely populated. The geographic 
area of the zone includes 47 Negro pupils and 48 white 
pupils. The school is a legacy through annexation from 
the county. The area does not justify building a new school 
now but the pupils must be provided schools. The cost per 
pupil for 1967-68 was $822.73 in this school when it had 
76 pupils. In its post-hearing brief the defendant indicated 
that the school would be closed next year. This should be 
done.

The primary thrust of the plaintiffs’ proof and argument 
is that transfers should be cancelled, thereby increasing de­
segregation. The defendants assert that resegregation will 
occur through migration by whites from zones integrated 
above a “ tilt” point of 30% Negro.

It is apparent from the proof that the cancellation of 
all transfers will not effect the racial make-up of many 
schools because of the segregated housing patterns in dif­
ferent sections of the city which are miles apart. Undoubt­
edly, this is due in a large measure to economic factors 
over which the defendant Board has no control.

By way of illustration, certain phases of the high school 
enrollment and zone population figures by races are sum­
marized herein. There are, exclusive of the technical high

District Court’s May 15, 1969 Opinion



14a

school, 22 senior high schools in the system. At present 
7 are all Negro and 6 are all white. If all transfers were 
cancelled and pupils who live in the respective high school 
zones were assigned to their zones of residence 1 school 
would remain all Negro and 6 wTould remain all white. The 
6 presently all Negro schools would receive a total of 88 
white pupils where they would be in respective racial 
minorities of .0008 at Carver, .012 at Hamilton, .021 at 
Manassas, .043 at Melrose, .001 at Booker T. Washington 
and .01 at Douglas. If no majority to minority transfers 
were permitted 50 Negro pupils would not be permitted 
to attend predominantly white desegregated schools. This 
is based upon the present transfers by Negroes to Central 
and East High Schools.

I f majority to minority transfers were allowed and 
the minority white students mentioned above could not 
transfer, whereas the Negro students could and would 
there would still be a reassignment of 258 Negroes from the 
presently desegregated Northside High School. These 
pupils have transferred from five of the overwhelmingly 
Negro zones to Northside. At Northside they are in a 
racial majority of 95%, whereas in the schools in the zones 
of their residence they would be in racial majorities rang­
ing from a low of 95.7% to a high of 99.92%.

The zone lines established by the Board have been the 
subject of prior proceedings in this cause. See Northcross 
v. Board of Education, 33 F2d 661 (C.A. 6, 1964). Again 
the zone lines are attacked on the basis that they perpetuate 
segregation. Trial Exhibits #31 through #34  reveal that 
there have been substantial changes in the attendance fig- 
uies of the schools in recent years in many of the zones. 
For example, at Hollywood Elementary School the atten­
dance in 1963-64 was 371 whites and 5 Negroes, whereas in

District Court’s May 15, 1969 Opinion



15a

1968-69 the school has 814 Negroes and no white pupils. 
In the case of Longview Elementary School, in 1965-66 
there were 592 whites and 265 Negroes, whereas in 1968-69 
there are 1290 Negroes and 16 whites. These changes pri­
marily were caused by changes in neighborhood racial pat­
terns. In addition to racial changes, some of the zones 
have diminishing numbers of school age students and hence 
are operating at under capacity. Fairview Junior High 
had 786 students in 1965-66 and now has only 476. The 
school is still approximately 75% vThit.e. An examination 
of the racial residential density map and zone figures shows 
that the inner city is the area where the most significant 
desegregation does and will occur in the near future unless 
a massive bussing system is installed. Within this general 
area some glaring islands appear. For example, Carpenter 
Elementary, grades 1-3, and Lester Elementary, Junior 
High and High Schools have a total of 2396 students, all 
Negro. Treadwell and East High Schools have grades 1 
through 12 and are immediately adjacent to the Lester- 
Carpenter zone. Treadwell has 2884 whites and 8 Negroes. 
East has 1866 white students and 19 Negroes. The defen­
dants point out that the Lester-Carpenter “island”  zone 
boundaries are necessary because of industrial and com­
mercial barriers, major thoroughfares and railroad tracks. 
The plaintiffs point out that these same tracks bisect other 
zones in other parts of the city.

The defendant’s initial response to the pending Motion 
for Further Relief was a complete defense of its present 
system. During this hearing the Board offered a Supple­
mental Plan which proposes that the defendant Board 
appoint a Director of Interscholastic Activities who shall 
be charged with the responsibility of formulating plans 
and programs for inter scholastic and extracurricular ac­

District Court’s May 15, 1969 Opinion



16a

tivities on a biracial basis. This would include temporary 
principal and teacher exchanges and pupil exchanges in 
various areas, including vocational training, arts and crafts, 
academic courses and music and debate.

Faculty desegregation in the defendants’ system was 
first undertaken in the school year 1966-67, when faculty 
members were assigned as members of a minority race in 
the schools which had formerly had total white faculties 
and total Negro faculties under the dejure system of seg­
regated schools. In 1967-68 the number of minority assign­
ments was 226. After the pending motion was filed in July 
1968, and before the opening of school for the current year, 
the defendant system, upon the suggestion of the Honorable 
Bailey Brown, made additional minority reassignments so 
that every school in the system but one had a member of 
the minority race on its faculty. Since the beginning of 
the school year additional minority assignments have been 
made so that the total, as of January 17, 1969, was 441%. 
Plaintiffs have introduced proof that 57 of the 183 white 
teachers in the minority race situations are in various 
special assignments such as Title I teachers and ROTO 
instructors. Whereas, 19 of the 247 Negro teachers in 
minority situations are in similar special programs.

The method of faculty desegregation prior to the filing of 
the pending motion was highly selective resulting in a small 
percentage of the total faculty assignments being minority 
race assignments. The planning programs and the meetings 
which bring faculty members from different schools to­
gether have been upon a desegregated basis, and there have 
been other desegregation efforts such as temporary assign­
ments for Negro principals in predominantly white schools 
and recently a printed leaflet setting forth aims and sug­
gestions in the area of desegregated faculties and schools.

District Court’s May 15, 1969 Opinion



17a

However, special programs and seminars to encourage and 
prepare all teachers for substantial desegregation of fac­
ulties have not been conducted.

In Green v. County School Board, supra, the Supreme 
Court said:

“ The obligation of the district courts, as it always 
has been, is to assess the effectiveness of a proposed 
plan in achieving desegregation. There is no universal 
answer to complex problems of desegregation; there 
is obviously no one plan that will do the job in every 
case. The matter must be assessed in light of the cir­
cumstances present and the options available in each 
instance. It is incumbent upon the school board to 
establish that its proposed plan promises meaningful 
and immediate progress toward disestablishing state- 
imposed segregation. It is incumbent upon the district 
court to weigh that claim in light of the facts at hand 
and in light of any alternatives which may be shown 
as feasible and more promising* in their effectiveness. 
Where the court finds the hoard to he acting in good 
faith and the proposed plan to have real prospects for 
dismantling the state-imposed dual system ‘at the earli­
est practicable date,’ then the plan may he said to 
provide effective relief. Of course, the availability to 
the board of other more promising courses of action 
may indicate a lack of good faith; and at the least it 
places a heavy burden upon the board to explain its 
preference for an apparently less effective method. 
Moreover, whatever plan is adopted will require eval­
uation in practice, and the court should retain juris­
diction until it is clear that the state-imposed segrega­
tion has been completely removed.” (Emphasis added)

391 TT.S. at p. 439.

District Court’s May 15, 1969 Opinion



18a

In this cause the Court finds that the defendant Board 
has acted in good faith as it interpreted its burden to deseg­
regate the schools in its system. However, the existing and 
proposed plans do not have real prospects for dismantling 
the state-imposed dual system at the “ earliest practicable 
date.”

It is the opinion of the Court that the conversion from the 
former dejure dual system would not be accomplished in 
the most effective manner now by the cancellation of free 
transfers in the present zones even with a majority to 
minority provision. Although this would improve the de­
segregation ratio in some schools, it would decrease it in 
others and it would leave the vast majority of pupils in all 
Negro, all white schools or ones with token desegregation 
due to the residential patterns in this large system. In this 
regard it should be noted that the court’s reasoning is not 
based upon the threat that whites will migrate if the court 
undertakes to enforce the constitutional rights of pupils of 
the city. Monroe v. Board of Commissioners, supra, at p. 
459.

An examination of the transfer records by schools in­
dicates that there are many transfers from majority to 
majority zones which cannot be traced to racial factors and 
as hereinbefore indicated in some instances the percentage 
of desegregation will be diminished.

In dismantling the former state-imposed dual system at 
at the earliest practicable date the Board should undertake 
to remove racial discrimination in all schools, not just the 
schools in the inner city. In this regard much can be ac­
complished by faculty desegregation, with proper prepara­
tion, as promptly as possible, under the Board’s supple­
mental plan and other affirmative approaches.

The zones are in need of revision for many purposes 
including further desegregation where feasible. These zones

District Court’s M ay 15, 1969 Opinion



19a

should be reconsidered and revised annually in the light of 
all relevant factors, including the Board’s affirmative duty 
to eliminate racial discrimination.

The Board should appoint a full time Director of De­
segregation who shall be charged with investigating and 
recommending to the Board ways and means of assisting 
the Board in its affirmative duty to convert to a unitary 
system in which racial discrimination will be eliminated 
root and branch. Green v. County School Board, supra, at 
pp. 437-438. One of the specific assignments shall be a re­
vision of zone boundary lines. Factors to be considered in 
addition to more effective desegregation shall be the capac­
ity of the schools, the location of students, the location of 
existing school facilities and the safety of the students, 
including natural boundaries, railroad crossings and thor­
oughfares.

For the year 1969-70 the present transfer system will 
be followed except that the Board will incorporate in its plan 
and appropriately announce a specific provision whereby 
all transfers requested by students from a zone in which 
they are in a racial majority to a zone in which they will 
be in a racial minority will be allowed regardless of resi­
dence and subject only to lack of space to a degree whereby 
the transfer would interfere with the educational processes.

Prior to January 1, 1970, the Board will file in this cause 
maps showing the revised zone boundary lines and will file 
enrollment figures by race of the pupils actually attending 
the schools as of the time of the report and enrollment 
figures by race of the pupils who live in the proposed re­
vised zones. The Court will then consider the adequacy of 
the revised zone boundaries and will reconsider the ade­
quacy of the transfer plan for future years in accordance 
with the holding of the Supreme Court that district courts

District Court’s M ay 15, 1969 Opinion



20a

should retain jurisdiction to insure that a constitutionally 
acceptable plan is operated “ so that the goal of a desegre­
gated non-racially operated school system is rapidly and 
finally achieved.” Raney v. Board of Education, supra, at 
p. 449.

The Director of Desegregation shall also promulgate and 
plan biracial activities as proposed in the Supplemental 
Plan of the Board, with particular emphasis on those schools 
which are not desgregated.

New Schools, additions to existing schools and the use of 
portable class rooms shall be programmed, planned and 
constructed in furtherance of the Board’s affirmative duty 
to convert to a unitary system free from racial discrimina­
tion and in accordance with other factors such as financial 
limitations, location of students, age level of the students, 
safety of the students and other relevant non-racial factors.

In the good faith performance of this affirmative duty, 
the Board should be particularly mindful of the 1967 report 
of the United States Commission on Civil Rights (Racial 
Isolation in the Public Schools) wherein it is reported on 
page 61:

“ Site Selection.—As noted in the discussion of Northern 
schools, the location of new schools has a marked effect 
on patterns of isolation. Whether a school system uses 
geographical zoning, free choice, or a variation on these 
methods of assignment, a key determinant of the stu­
dent racial composition is the location of the school.

“At the time of the Brown decision, Southern educa­
tors were aware that the location of schools was an 
important factor in maintaining segregated school at­
tendance patterns. A  story in a Memphis, Tenn., news­
paper on May 18, 1954, is illustrative:

District Court's May 15, 1969 Opinion



21a

“ ‘Ruling Fails to Shock City: Officials See Little Dif­
ficulty

“ ‘School authorities in Memphis yesterday evidenced 
no surprise at the [Brown] decision . . . Mr. Milton 
Bowers, Sr., President of the Memphis Board of Edu­
cation, said, “We have been expecting this to happen a 
long while . . .  We believe our Negroes will continue 
using their own school facilities since most of them 
are located in the center of Negro population areas . . . 
[Negro schools are] fully equal to and in some in­
stances [better than white schools]. We are very op­
timistic about this [ruling].’ ”

In this regard it should be noted that the defendant Board 
recently voluntarily closed Patterson School, which had 
been a Negro school, thereby encouraging those students 
to attend White Station School which is a predominantly 
white school located in the immediate vicinity of the former 
Patterson School.

In U. 8. A. v. Greenwood Municipal Separate School Dis­
trict, 406F2 1086 (C.A. 5, Feb. 4, 1969) the court said:

“The school board must put its shoulder to the wheel 
and assume the burden on integrating the faculty and 
staff of each school. . . .  The transformation to a unitary 
system will not come to pass until the board has bal­
anced the faculty of each school so that no faculty is 
identifiable as being tailored for a heavy concentration 
of Negro or white students. . . .  To assure compliance, 
it is evident that the district judge will have to impose 
interim targets and conduct subsequent hearings to 
determine what progress is being made.”

District Court’s May 15, 1969 Opinion



22a

The defendant Board in this case shall adopt a plan of 
faculty desegregation whereby supervisors, principals, 
teachers and other faculty personnel shall be employed, 
promoted and assigned in furtherance of a goal of removing 
the racial identity of each school, but no teachers shall be 
discharged from the system to correct a racial imbalance.

An interim target for this goal shall be that at least 20% 
of the teachers of the system will be assigned to racially 
minority faculty positions in the year 1969-70. This per­
centage shall be systemwide and shall not necessarily re­
quire 20% in each school in 1969-70.

Teachers shall be assigned on the basis of certification 
and qualification for the academic subjects or grade level 
to be taught. Assignments to racially minority faculties 
shall not be left to the choice of the teacher. Monroe v. 
Board of Commissioners, 380 F2d 955 (C.A. 6, 1969).

The Board shall have properly trained personnel con­
duct appropriate seminars and programs for all teachers 
in the system to prepare all faculty personnel for desegre­
gated faculties. In this regard the properly trained per­
sonnel may be from within or without the system, provided 
they are properly trained for that purpose and are dedi­
cated to a program of desegregated faculties.

The above shall constitute the findings of fact and conclu­
sions of law of this Court as contemplated by Buie 52 of 
the Federal Buies of Civil Procedure. Counsel for the 
defendants shall promptly file a revised plan which shall 
incorporate therein the provisions of the existing plan and 
the supplemental plan which are not inconsistent with this 
opinion and shall also incorporate therein such additional 
provisions that are required by this opinion. A  separate 
form of judgment incorporating the contents of this opinion

District Court’s May 15, 1969 Opinion



23a

and the revised plan shall also be filed by counsel for the 
defendants.

This 15th day of May, 1969.

District Court’s M ay 15, 1969 Opinion

/ s /  R obebt M . M cR ae, J b .
Robert M. McRae, Jr. 

United States District Judge

A  True Copy:

Attest:
W . L loyd J ohnson , Clerk 
By / s /  J. B. Cbockett , D.C.



24a

1969-70 Enrollment Statistics

MEMPHIS CITY SCHOOLS

Enrollment Data

School Year 1969-70

Eeeap of figures compiled from second attendance report dated 
October 23, 1969.

INTEGEATED TOTALS:
White Negro Total

Kindergarten 156 194 350
Special Ed. 1098 448 1546
Elementary 25368 11647 37015
Junior Hi 11946 5984 17930
Senior Hi 9673 3473 13146

48241 21746 69987

NON-INTEGEATED TOTALS:
Kindergarten 50 529 579
Special Ed. 75 794 869
Elementary 5842 27144 32986
Junior Hi 3632 12853 16485
Senior Hi 3544 9824 13368

13143 51144 64287

COMBINED TOTALS:
Kindergarten 206 723 929
Special Ed. 1173 1242 2415
Elementary 31210 38791 70001
Junior Hi 15578 18837 34415
Senior Hi 13217 13297 26514

61384 72890 134274
45.7% 54.3%

Department of Pupil Services 
jh (12-12-69)



ENROLLMENT DATA—-MEMPHIS CITY SCHOOLS—ATTENDANCE REPORT ENDING 10-23-69

School

14
Kindergarten 
White Negro

45
Special Ed. 

White Negro

Airways Jr. — — 37 —

Avon — — 13 6
Bellevue Jr. _ — 19 5
Bethel Grove — — 9 1
Bruce 14 11 — —

Campus — — 22 —

Central — — — —

Charjean — — — —

Cherokee 19 6 16 2
Colonial El. — — — —

Cromwell 25 — — —

Cypress Jr. — — — —

Delano — — — —

Denver — — 35 1
Dunbar — 25 -— ■ —

East El. — — — —

East Hi — — — —

Pairview Jr. _ — — —

Frayser Hi — — — —

Ga. Hills El. — — — —
Ga. Hills Jr. — — 31 1
Goodlett — — — —

Gordon — — — —

59 25 15
Elementary Junior Hi Senior Hi

White Negro White Negro White Negro Total
— — 342 109 — — 488

298 41 — — — — 358
— — 384 276 — — 684

142 296 — — -— — 448
338 129 — — — — 492
524 12 — — — — 558

— — — — 951 219 1170
629 8 — — — — 637
622 212 — •— — — 877
728 6 — — — — 734
477 2 — — — — 504

— — 1 1573 — — 1574
396 2 — — — — 398
673 2 — — — — 711

1 779 — — — , — 805
589 14 — — . — — 603

— — 621 6 607 9 1243
— — 268 149 — — 417
— — 942 — 999 1 1942

789 3 — — _ — 792
— — 607 23 — — 662

920 1 — — — — 921
16 716 — — — — 732

Integrated in Spec. Ed. only

1969-70 E
nrollm

ent Statistics



Kindergarten Special Ed. Elementary Junior Mi Senior Mi
School White Negro White Negro White Negro White Negro White Negro Total

Gragg __ — 45 1 309 5 348 1 — — 709
Grahamwood — — 63 2 525 4 — — — — 594
Grant — 25 -—■ — 1 662 — — — — 688
Guthrie — — 8 20 125 664 — — — — 817
Hawkins Mill 21 4 40 1 369 85 — — — — 520
Hill, A. B, — 25 24 3 1243 — — — — — 1295
Humes Jr. — — 6 24 — — 61 1386 — — 1477
I die wild — — 11 6 447 51 — — — — 515
Jackson — — — — 436 1 — — — — 437
Knight Road 25 — 51 — 702 1 -— — — — 779
LaRose — 25 1 122 — 1453 — — — — 1601
Lawler -— — — — 149 2 — — — _ 151
Lenox — — 38 6 89 2 — — — -— 135
Levi (1-8) •— — 11 1 328 162 83 39 — — 624
Longview (1-5) — — — — 6 1361 — — — — 1367
Longview (6-8) _ — — 31 — — 3 898 — — 932
Macon — — — — 466 5 — — ■— — 471
Mallory Hts. — — 3 9 60 412 — — — —. 484
Maury — — — — 175 40 — — — — 215
Merrill — 25 — — 32 379 — — — —• 436
Messick (1-6) — — — — 342 103 — — — — 445
Messick (7-12) —r — — — — — 403 67 1117 29 1616
Northside _ — 5 23 — — -— ■ — 26 1360 1414
Oakhaven Bl. — — 11 — 1013 2 — — — — 1026
Oakhaven Hi _ •— 12 1 _ — 600 1 495 — 1109
Oakville —, — — — 218 38 — — — — 256
Peabody — — 30 5 384 53 — —- — — 472

1969-70 E
nrollm

ent Statistics



Kindergarten Special Ed.
School White Negro White Negro

Pine Hill — — — 30
Pope — — 6 9
Prospect — — — —
Richland El. — — — —
Richland Jr. — — — _
Riverview El. — — — —
Riverview Jr. — — — 17
Rozelle 2 23 6 17
Sea Isle 25 — 56 —
Shady Grove — — 22 —
Sharpe — — — —
Sheffield (7-12) — — — —
Sherwood El. 24 1 75 —
Sherwood Jr. —• — 52 5
Shrine — — 19 27
Snowden (1-9) — — — —
South Park —. — 93 —
South Side (9-12) — — — 20
Springdale 1 24 — —
Tech — — — _
Treadwell El. ■— — — —
Treadwell (7-12) — — 28 —
Trezevant (7-12) — *— — —
Vollintine — — 14 23
Wells Station ,— — 21 —
Westside El. — -— 25 *—
Westwood El. — —. 17 1

Elementary Junior Hi Senior Hi
White Negro White Negro White Negro Total

1 321 — — — — 352
211 472 — — — — 698

3 279 — — — — 282
826 2 — — — — 828
— — 646 17 — — 663

3 1218 — — -— — 1221
— — 1 875 — — 893
47 670 — — — — 765

1005 4 — — — — 1090
620 20 _ — -— _ 662
452 7 — -— ■— — 459
— — 623 27 391 14 1055

880 43 — — — — 1023
— — 1197 49 — — 1303
29 25 18 6 8 1 133

557 22 495 93 — — 1167
415 1 — — — — 509

— — 2 274 6 1480 1782
12 462 — . — — — 499
— — — ■ — 592 243 835

1134 1 — — — — 1135
— — 819 3 864 8 1722
— — 869 6 824 16 1715

142 262 — — — — 441
718 1 — — — . — 740
820 10 — — — — 855

1450 23 — — — — 1491

N?

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O

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«S>.
Co
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Co

27a



Kindergarten Special Ed. Elementary Junior Hi Senior Hi
School White Negro White Negro White Negro White Negro White Negro Total
Westwood (7-12) — — — -------- -------- ____ 723 40 631 43 1437
White Sta. El. — — 57 22 313 93 — ____ ____ .... 485
White Sta. (7-12) — — 1 6 ------ - — 761 52 1386 50 2256
Whitney — — 22 — 236 1 — — ____ . 259
Willow Oaks — — 43 — 933 2 — ____ ■ . 978
Wooddale — — -— — — — 1129 14 776 — 1919

156 194 1098 448 25368 11647 11946 5984 9673 3473 69987

INTEGRATED TOTALS:

Kindergarten 156 194
Special Ed. 1098 448
Elementary 25368 11647
Junior Hi 11946 5984
Senior Hi 9673 3473

48241 21746

Department of Pupil Services
jh (12-12-69)

1969-70 E
nrollm

ent Statistics



ENROLLMENT DATA—MEMPHIS CITY SCHOOLS—ATTENDANCE REPORT ENDING 10-23-69

School

23
Kindergarten

26
Special Ed.

White Negro White Negro

2 21 2 24
Alcy — — — —
Berclair 25 — — __
Brookmeade — — — __
Caldwell — — — __
Carnes —- 25 — 26
Carpenter — — — —

Carver — — — __
Chicago Park — 25 — —

Colonial Jr. — — — —

Corning 25 — — —

Corry Rd. — — — —

Cummings *— 26 — 24
Douglass El — 25 — 19
Douglass (7-12) — — — 37
Dunn — 24 — __
Evans — — __ __
Florida — .—- — 29
Ford Rd. (1-7) — 26 ■— 28
Fox Meadows — — _ —

Frayser El. _ — — —

Geeter El. — — _ 7
Geeter (7-12) — •—. «— 14
Georgia Ave. — — •— 92

40 19 12
Elementary Junior Hi Senior Hi

White Negro White Negro White Negro Total

8 32 3 16 a 9 _
— 766 — — — — 766

553 — — — — — 578
909 — — — — — 909
— 1662 — — — — 1662
— 706 — 172 — — 929
— 331 — — — — 331
— — — 989 — 1190 2179
— 588 — —- -— _ 613
— — 1594 — — .— 1594

386 — — — — __ 411
— — — 1055 .— —.- 1055
— 1126 — — _ _ 1176
— 954 — — — — 998
— — — 675 — 1081 1793

977
542 — — — — 566
— — — -— — 977

— 1175 — — — _ 1204
— 839 — 167 _ — 1060

843 — — —• — — 843
468 — — — _— «— 468
•— 408 — — — —- 415
— — — 271 _ 420 705
— 1754 — — _ — 1846

1969-70 E
nrollm

ent Statistics



Kindergarten Special Ed. Elementary Junior Hi Senior Hi
School White Negro White Negro White Negro White Negro White Negro Total

Grandview Hts. — — 30 — 861 — — — — — 891
Hamilton El. — 25 — — — 1294 — — — — 1319
Hamilton (7-12) _ — — — — — _ 1439 — 1789 3228
Hanley — 26 — 58 — 1451 — — — — 1535
Hollywood — — — — — 874 — — — — 874
Hyde Park — 25 — 40 — 1450 — — — — 1515
Kansas — 25 __ — — 949 — — — — 974
Kingsbury EL — — 45 — 845 — — — — — 890
Kingsbury (7-12) — — — — — — 1477 — 1429 — 2906
Klondike *— 25 — 129 — 673 •— — _ — 827
Lakeview — 27 — 7 — 443 — 136 •— — 613
Lauderdale ■— 25 — 6 — 718 — — — _ 749
Leath — 25 — 84 — 711 — — — — 820
Lester El. — 25 — 13 — 896 — — — — 934
Lester (7-12) — — — — — — — 578 — 484 1062
Lincoln El. _ 25 — 19 — 765 — — — — 809
Lincoln Jr. — — — 28 — . — — 1779 — — 1807
Locke — 25 — — — 1051 — — -— — 1076
Magnolia — 25 — — — 1035 — — — — 1060
Manassas — — — — — — — 1208 — 1025 2233
Melrose (7-12) — — — 17 — — — 1258 — 1131 2406
Mitchell (8-12) — — — 26 — — — 723 -— 836 1585
Norris — — — — —- 620 — — — — 620
Orleans — 25 — — — 831 — — — — . 856
Overton — . — — — — — — — 1735 — 1735
Porter — — — 29 — — — 2270 — — 2299
Shannon — — — — — 957 — — — — 957

1969-70 E
nrollm

ent Statistics



Kindergarten Special Ed. Elementary
School White Negro White Negro White Negro

Stafford — 25 — — — 551
Walker (1-7) ------ . — — 11 — 681
Washington — — — 21 — —

Weaver (1-7) — — — — — 152
Westside (7-12) — — ------- — — —

Wisconsin — 25 — 30 — 191

50 529 75 794 5842 27144

NON-INTBGRATED TOTALS:

Kindergarten 50 529
Special Ed. 75 794
Elementary 5842 27144
Junior Hi 3632 12853
Senior Hi 3544 9824

13143 51144

Department of Pupil Services
jh (12-12-69)

Junior Hi Senior Hi
White Negro White Negro Total

— — — — 576
— 113 — — 805
— — — 1868 1889
— 20 — _ 172

561 — 380 — 941
— — — — 246

3632 12853 3544 9824 64287 k i

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31a



32a

In the

UNITED STATES COURT OF APPEALS 

fob the Sixth Circuit 

No. 3931

Motion to Require Adoption of Unitary System Now

Deborah A. Northcross, el al.,

vs.
Appellants,

B oard of E ducation of the Memphis City Schools,

Appellees.

Come now the appellants and respectfully move the 
Court for an order directing the immediate and total de­
segregation of the City of Memphis School system. In 
support of said motion, appellants would respectfully show 
unto the Court:

1. The United States Supreme Court on October 29, 
1969, in the case of Alexander v. Holmes County Board of 
Education, No. 632, held that school districts which pre­
viously operated dual school systems based on race or color 
must begin immediately to operate as unitary school sys­
tems within which no person is to effectively be excluded 
from any school because of race or color.

2. The Supreme Court charged the Court of Appeals 
before whom a case is pending with the responsibility for 
requiring the school system to be operated as a unitary 
system under its own order and that during the period



33a

under which a school system is so operated, the District 
Court may hear and consider objections thereto or proposed 
amendments thereof while the order of the Court of Ap­
peals remains in effect, but no changes may be made in such 
an order requiring the operation of a unitary system until 
such change has been passed upon by the Court of Appeals.

3. Appellants filed their Motion for Summary Reversal 
of the decision of the District Court on June 13, 1969. It 
remains pending before this Court but has not been heard.

4. As of the school year, 1968-69, there were 35 all-white 
schools, 50 all-Negro schools, 47 predominantly white 
schools, and 17 predominantly Negro schools in the City 
of Memphis. In fact, 92 schools in the City of Memphis 
are either all Negro or all white or have less than 10% 
of their pupils from students of the opposite race of the 
majority of the students in the school. The language of the 
District Court was “during the current year, 71.5% of the 
Negroes attend all-Negro schools.” The situation for the 
1969-70 term remains virtually the same.

5. Under the order of the District Court, schools remain 
identifiable in terms of their faculty as being tailored for 
white or black students in that the majority of schools still 
do not reflect the racial composition of the faculty and staff 
in the system.

6. The Court’s order does not enjoin construction of 
new schools pending the institution of new zone lines.

7. The District Court found “However, the existing and 
proposed plans do not have real prospects for dismantling 
the state imposed dula system at the ‘earliest practicable

Motion to Require Adoption of Unitary System Noiu



34a

date.’ ” Despite this finding, the Court in its May 15, 1969, 
decision did not require the institution of new zone lines 
for the beginning of the 1969-70 school term. It delayed the 
filing of new zone lines until January, 1970.

W herefore, Appellants move this Court to enter its order 
without hearing in conformance with the decision of the 
Supreme Court of the United States on October 29, 1969 
requiring:

1. Adoption of a new plan of desegregation within ten 
days including the institution of new zone lines, based upon 
geographic zoning, pairing of schools, non-contiguous zones, 
and cross transportation of pupils to achieve desegregation 
of all-Negro or all-white schools wherever necessary, there­
by eliminating all-white and all-black schools, leaving only 
unitary “ schools” operated by the appellee Board of Edu­
cation.

2. The institution of said plan of desegregation eliminat­
ing all-black and all-white schools and leaving only unitary 
schools forthwith in accordance with the opinion of the 
United States Supreme Court in Alexander v. Holmes 
County Board of Education, supra.

3. Reassignment forthwith of faculty and staff so that 
each school within a margin of 10% reflects the ratio of 
Negro and white teachers in the system.

4. Enjoin further construction pending adoption of the 
new pattern of school organization.

Motion to Require Adoption of Unitary System Now



35a

5. Eliminate the “ free transfer” provision approved by 
the District Court.

Respectfully submitted,

/ s /  Louis R. L ucas 
Louis R. Lucas

525 Commerce Title Building 
Memphis, Tennessee 38103

Jack Gbeestbebg 
Noeman Chachkin

10 Columbus Circle 
New York, New York 10019

Motion to Require Adoption of Unitary System Now

Ceetificate oe Seevice

The undersigned hereby certifies that a copy of the fore­
going Motion for Adoption of Unitary System has been 
served upon counsel for the appellee, Jack Petree at his 
office, 900 Memphis Bank Building, Memphis, Tennessee, 
by depositing a copy of same in the United States mail, 
postage prepaid, this 3rd day of November, 1969.

/ s /  Louis R. L ucas 
Louis R. Lucas



36a

In the

UNITED STATES COURT OF APPEALS 

foe the W estern D istrict of T ennessee 

No. 3931

Motion to Convene Emergency Panel

Deborah A. Northcross, et al.,

vs.
Appellants,

B oard of E ducation of the Memphis City Schools,

Appellees.

Come now the appellants through their undersigned 
counsel and respectfully move the Court to convene an 
emergency panel of the Sixth Circuit Court of Appeals for 
the purpose of consideration and ruling on the motion filed 
by appellants pursuant to the decision of the United States 
Supreme Court in Alexander v. Holmes County Board of 
Education, No. 632, October term, 1969 (Oct. 29, 1969), 
which opinion requires the court of appeals before whom 
a school desegregation case is pending to act forthwith and 
require school districts which previously operated dual 
school systems based on race or color to begin immediately 
to operate as unitary school systems. In the language of 
the opinion, “ every school district . . .  to terminate dual 
systems at once, and to operate now and hereafter only 
unitary schools.” (emphasis supplied).

In support of said motion appellants would respectfully 
show unto the court that there has been on file with this 
court since June, 1969, a Motion for Summary Reversal of 
the order of the district court which order failed to pro­



37a

vide for the operation of a unitary school system in the 
City of Memphis public schools by the start of the 1969-70 
school term. Appellants further show that this court 
declined to hear the motion for summary reversal pending 
receipt of the transcript of the trial testimony; It was fur­
ther submitted to the court by written motion a copy of 
a letter from the court reporter for the United States Dis­
trict Court written at the request of the district judge 
advising that becuase of the press of other business, such 
a transcript could not be made available until after the 
start of the school term. This second motion asked this 
court to act without benefit of transcript; The court de­
clined to act, thereby denying appellants relief for the 
start of the 1969-70 school term. Despite the requirement 
of the Sixth Circuit rules of a response to motions within 
seven days, appellees have filed no response to any of the 
pending motions.

Appellants are advised that this court in consideration 
of the latest pending motion to “Adopt a Unitary System 
Now” still awaits the receipt of a transcript prior to a 
hearing or decision on the summary motions pending be­
fore it. Appellants have been advised by the Clerk of the 
Court of Appeals that he has been advised to set the matter 
for hearing on the court’s December docket and that the 
Court still requires the submission of the transcript. It 
is respectfully submitted that the delay envisioned by a 
setting sometime during the December term of the court 
does not meet the requirements of Alexander v. Holmes 
County Board of Education, supra, and may result in 
further delays constituting a denial of appellants’ rights 
under the Constitution and laws of the United States.

Wherefore, appellants respectfully submit that the court 
should convene an emergency panel of the court prior to

Motion to Convene Emergency Panel



38a

the December term for the purpose of decision with or 
without a hearing based upon the records already available 
to the court which include the decision of the district court, 
a lengthy motion for summary reversal and a printed ap­
pendix to said motion containing reproductions of exhibits 
filed with the district court as well as a reproduction of 
the district court’s opinion. That said panel order the 
immediate establishment of a unitary school system in the 
City of Memphis without awaiting receipt of transcript, 
briefs, or arguments of counsel.

Respectfully submitted,

/ s /  Louis R. L ucas 
Louis R. Lucas
R atner, Sugarmon, Lucas & W illis, 

525 Commerce Title Building 
Memphis, Tennessee 38103

Jack Greenberg 
Norman Chachkin

10 Columbus Circle 
New York, New York 10019

Motion to Convene Emergency Panel

Certificate oe Service

This is to certify that a copy of the foregoing Motion 
has been served on counsel for the appellee, Mr. Jack 
Petree, at his office, 900 Memphis Bank Building, Memphis, 
Tennessee, this 13th day of November, 1969.

/ s /  Louis R. L ucas 
Louis R. Lucas



39a

UNITED STATES COURT OF APPEALS 

fob the F ourth Circuit 

No. 13,904

En Banc Fourth Circuit Decision

T heodore W hitmore Stanley, et al.,
Appellants,

VERSUS

Darlington County S chool D istrict, et al.,

Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
DISTRICT OP SOUTH CAROLINA, AT FLORENCE. J. ROBERT 

MARTIN, JR., DISTRICT JUDGE.

No. 13,905

E laine W hittenberg, et al.,
Appellants,

VERSUS

School D istrict op Greenville County, etc., et al.,
Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
DISTRICT OP SOUTH CAROLINA, AT GREENVILLE.

J. ROBERT MARTIN, JR., DISTRICT JUDGE.



40a

En Banc 4th Circuit Decision 

Order

We consolidated these appeals for hearing and dispo­
sition in light of Alexander v. Holmes County Bd. of Educ., 
396 U.S. 19 (Oct. 29, 1969), and Nesbit v. Statesville City 
Bd. of Educ.,------ F .2 d -------- (4th Cir., Dec, 2, 1969).

In Alexander the Supreme Court held that “the obliga­
tion of every school district is to terminate dual school 
systems at once and to operate now and hereafter only 
unitary schools.” In Carter v. West Feliciana Parish
School Bd., -------  U.S. •—— (Jan. 14, 1970), the Supreme
Court re-emphasized the immediacy of its holding in Alex­
ander. It vacated an order of the United States Court of 
Appeals for the Fifth Circuit, sitting en banc, permitting 
pupil integration to be deferred until the opening of the 
new school year in September 1970. The Court of Appeals 
for the Fifth Circuit was held to have misconstrued the 
Supreme Court’s decision in Alexander, and complete stu­
dent integration was held to be required in those cases by 
February 1, 1970.

These decisions leave us with no discretion to consider 
delays in pupil integration until September 1970. What­
ever the state of progress in a particular school district 
and whatever the disruption which will be occasioned by 
the immediate reassignment of teachers and pupils in mid­
year, there remains no judicial discretion to postpone im­
mediate implementation of the constitutional principles 
as announced in Green v. County School Board of New 
Kent County, 391 U.S. 430; Alexander v. Holmes County 
Bd. of Educ., 396 U.S. 19 (Oct. 29, 1969); Carter v. West 
Feliciana Parish School Bd.,------ U.S. —-—■ (Jan. 14,1970).



41a

Accordingly, it is A djudged, ordered and decreed:

1. Each of the school districts shall submit to the Dis­
trict Court a plan for unitary schools on or before January 
23, 1970;

A. The plan for Darlington may be based upon proposal 
B submitted by the Department of Health, Education and 
Welfare, or upon any other plan that will create a unitary 
school system;

B. The plan for Greenville may be based upon the re­
vised plan submitted by the school board or upon any other 
plan that will create a unitary school system;

C. All plans must include provisions for the integration 
of the faculty so that the ratio of Negro and white faculty 
members of each school shall be approximately the same 
as the ratio throughout the system. In determining the 
ratio, exceptions may be made for specialized faculty po­
sitions ;

2. The plaintiffs and the Department of Health, Edu­
cation, and Welfare may file responses to the plans on or 
before January 28, 1970;

3. The District Judge will conduct a hearing in each of 
these cases on February 2, 1970 to enable him to determine 
the effectiveness of the proposed plans and to consider any 
objections which may have been filed;

4. On or before February 5, 1970, the District Judge 
shall enter an order in each of these cases approving a plan 
selected by him to attain a unitary school system and re­
quiring its implementation on February 9, 1970, with leave, 
however, to postpone the effective date of the implementa­

En Banc 4th Circuit Decision



42a

tion of all or any part of a particular plan until February 
16, 1970, if for good cause shown the District Judge finds 
that, to the extent that such postponement of implementa­
tion of the plan is allowed, it could not be achieved earlier.

5. The District Court’s order shall not be stayed pend­
ing any appeal which may be taken to this court, but, in 
the event of an appeal, modification of the order may be 
sought in this court by a motion accompanied by a request 
for immediate consideration.

The judgments are vacated and the cases remanded for 
further proceedings consistent with this order.

Let the mandate issue forthwith.

By direction of the Court:

Clement F. Haynsworth, Jr., 
United States Circuit Judge

En Banc 4th Circuit Decision

A  True Copy, Teste:

Samuel W . P hillips, Clerk

By / s /  J oA n n  C. K irkpatrick 
Deputy Clerk



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