Mapp v. Board of Education of City of Chattanooga, Tennessee Brief for Plaintiffs-Appellants

    In the

Huffrfi #iatr,a (Court of A ^ ra lo
S ix t h  C ircu it

No. 16,877

J am es J o nathan  M app , et al.,
Plaintiff s-Appellants,

—vs.—

T h e  B oard op E ducation op th e  C it y  op 
C hattanooga, T ennessee , et al.,

Defendants-Appellees.

ON A P PE A L  PRO M  T H E  U N IT E D  STATES D ISTR IC T COURT POR T H E  
EASTERN  D ISTR IC T OP T E N N E SSE E , S O U T H E R N  DIVISION

BRIEF FOR PLAINTIFFS-APPELLANTS

J ack  G reenberg 
D errick  A. B ell , Jr.

10 Columbus Circle 
New York, New York 10019

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

MeClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Plaintiffs-Appellants



Statement of Questions Involved

(1) Whether the Board’s administration of transfer regu­
lations is perpetuating segregation in the Chattanooga 
Public School System?

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

(2) Whether in the absence of any plan for desegregated 
faculty assignments, the District Court is required 
under Brown v. Board of Education, 347 IT. S. 483, 
349 IT. S. 294, to give immediate consideration to 
plaintiffs’ contention that faculties are allocated on a 
racial basis?

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

(3) Whether the Board’s over-all plan as administered 
can effectively and expeditiously disestablish its seg­
regated school system as required by Brown v. Board 
of Education and subsequent decisions of the United 
States Supreme Court?

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





I N D E X

BRIEF

PAGE

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

Statement of Facts .........   1
Prior History ................. ... ........................ -............. 2

Plan ........- ..... ...... ..... ...... .......................................... 5

School System ........................-..................................  5
Initial Assignments ..................................................  6
Transfer Provisions ................................................  8

Teachers .....      10

A r g u m e n t  —

I. The Court Below Erred When It Held that 
the Record Did Not Support a Conclusion that 
Defendants’ Transfer Regulation, 2-i, Was 
Used to Perpetuate Racial Segregation in the 
Chattanooga Public School System ..............    13

II. Brown v. Board of Education and Subsequent 
Decisions of the United States Supreme Court 
Require the District Court to Give Immediate 
Consideration to Plaintiffs’ Contention That 
Faculties Are Allocated on a Racial Basis 
Where the School Board Has No Plans for 
Desegregated Faculty Assignments 16



IV

III. The Board’s Plan on Its Pace, and as Admin­
istered in Chattanooga During the Last Three 
Years, Is a Totally Ineffective Vehicle for the 
Prompt Elimination of the Segregated School 
System as Required in Brown v. Board of Edu­
cation and Subsequent Decisions of the United

PAGE

States Supreme Court ................... ......... ............ 20

Relief ........ ....... ................................................................ . 24

T able of C ases

Bradley v. School Board, City of Richmond, Va., 34 
U. S. Law Week 3170 (No. 415, Nov. 15,1965) ....16,17,19

Briggs v. Elliott, 132 P. Supp. 776 (E. D. S. C.) ..... 23
Brown v. Board of Education, 347 U. S. 483 .......i, 15,16, 20
Brown v. Board of Education, 349 U. S. 294 .... 16-17, 20, 23

Calhoun v. Latimer, 377 U. S. 263 ............................... 17,19
Cooper v. Aaron, 358 U. S. 1 ...... ....... .........................22, 23

Dowell v. School Board of Oklahoma City Public
Schools, 244 F. Supp. 971 ..................... ..................15, 20

Downs v. Board of Education of Kansas City, 336 P.
2d 988 (10th Cir. 1964) ................................... ........... 22

Gilliam v. School Board, City of Hopewell, Va., 34
U. S. Law Week 3170 (No. 416) .................... ......16,17,19

Goss v. Board of Education, 373 U. S. 683 ...........14,15,17,
19, 22

Holland v. Board of Public Instruction, 258 P. 2d 730 
(5th Cir. 1958) ...... ..... .............. ..... ...................... ......  21

(No. 18050, 8th Cir.,Kemp v. Beasley, 
Oct. 27, 1965)

P. 2d
23



V

Mapp v. Board of Education, 319 F. 2d 571 (6th Cir.
1963) ..................... -................... ............. - ..............4> 14>19

Mapp v. Board of Education, 295 F. 2d 617 (6th Cir.
1961) ......................................... - ..................................  4

Mapp v. Board of Education, 203 F. Supp. 843 (E. D. 
Tenn. S. D. 1962) ....................................................... 14>15

PAGE

Northcross v. Board of Education of the City of Mem­
phis, 333 F. 2d 661 (6th Cir. 1964) ...................- ......44, 21

Plessy v. Ferguson, 163 U. S. 537 ................................. 22
Price v. Denison Independent School District Board 

of Education, 348 F. 2d 1010 (5th Cir. 1965) ..........  19
Singleton v. Jackson Municipal Separate School Dis­

trict, 348 F. 2d 729 (5th Cir. 1965) ........................19, 23
Taylor v. Board of Education of New Rochelle, 294 

F. 2d 36 (2nd Cir. 1965) .............................................. 21
Watson v. City of Memphis, 373 U. S. 526 ................17,19

S tatute

Civil Rights Act of 1964
Title VI, §403 (42 U. S. C. A. §2000d) ......................

O th er  A uthorities

Southern Education Reporting Service, “ Statistical 
Summary of School Segregation-Desegregation in 
Southern and Border States” 14th Revision, Novem­
ber, 1964 .............. - ................. -................................ ....

General Statement of Policies Under Title VI of the 
Civil Rights Act of 1964 Respecting Desegregation 
of Elementary and Secondary Schools, United States 
Office of Education, Department of Health, Educa­
tion and Welfare, April, 1965 ............................ —



VI

APPENDIX

Relevant Docket Entries ............................................. la
Progress Report on Desegregation—1964-65 ...........  6a
Plaintiffs’ Motion for Further R elie f........... .............. 12a

Excerpts from Transcript of Hearing Held on May 1,
1965 ....................   16a

Opinion of Wilson, D.J., Filed August 5, 1965 ......... . 156a
Order of Wilson, D.J., Filed August 11, 1965 ..........  164a

Notice of Appeal .................................................    166a

T estim on y  :
Plaintiffs’ Witness:

Napolean B. Patton—
Direct .............     86a
Cross ..............................................................   87a
Redirect ..........................        89a
Recross ............     89a

Defendants’ Witness:

Benny Carmichael—
Cross ...........................................    16a

Recalled—
Direct ........................   92a
Cross ................        120a

E xh ibits  :
Plaintiffs’ Exhibits: Offered Printed

Page Page

PAGE

1— Newspaper Article .............
2— Teacher Employment Record
3— Transfer R ecord __________

68a 122a 
75a 125a 
75a 136a



In the

United States Court of Appralo
S ix t h  C ircuit 

No. 16,877

J ames J on ath an  M app , et al.,

Plaintiffs-Appellants,
—vs.—

T h e  B oard of E ducation  of th e  C it y  of 
C hattanooga, T ennessee , et al.,

Defendants-Appellees.

BRIEF FOR I 'LA INTI FFS- APPELLANTS

Statement of Facts

Negro appellants, who since April 1960, have been at­
tempting through the courts to eliminate racial segregation 
in the Chattanooga Public School System, again seek this 
Court’s aid as a result of the lower court’s rejection of 
their request for relief (12a-14a), designed to require 
meaningful as opposed to token compliance with the Su­
preme Court’s decisions in the school desegregation field.

Appellants’ motion sought to accelerate the pace of de­
segregation so as to achieve complete desegregation in 
the Chattanooga Public School System by September 1965, 
through the elimination of all racially discriminatory pupil 
assignment and transfer policies, practices, restrictions and 
classifications, and the assignment of teaching, supervisory



9

and other professional personnel to schools in the system 
on the basis of qualification and need without regard to 
the race of the personnel or the children in attendance.

The district court denied appellants’ requested relief 
(164a-165a), but did modify the plan previously scheduled 
to include grades 1-7 in 1965, and all grades by 1968 (156a) 
so as to “ require desegregation of all remaining grades in 
the school system of the City of Chattanooga, Tennessee 
in September, 1966” (164a).

The lower court was of the opinion that the record did 
not support a conclusion that defendants’ transfer regula­
tions were used to “impede or defeat” desegregation (160a) 
and found that defendant should be given additional time 
to resolve the issue of desegregation of teacher, super­
visory and professional personnel without prejudice to the 
plaintiffs’ right to “ reassert the issue after a reasonable 
time and after further progress under the desegregation 
plan” (162a). The lower court also denied plaintiffs’ re­
quests for assignment of pupils pursuant to geographical 
capacity-related zone lines for each school without regard 
to race and elimination of all racial classifications in the 
general administration of defendants’ desegregation plan 
(168a).

Prior History

Plaintiffs filed their original complaint April 6, 1960 
and sought a decree enjoining defendants, their agents, 
employees and successors from operating a compulsory bi- 
racial school system, maintaining a pattern of school zone 
lines based on race and color, assigning pupils on the basis 
of race, racial assignments of teachers, principals and 
other school personnel and other practices designed to 
perpetuate a racially segregated school system. Alterna­
tively, plaintiffs prayed for an order requiring the defen­



3

dants to submit a desegregation plan (Appeal No. 14,444, 
Appellants’ Appendix 7a-14a). Defendant answered deny­
ing that plaintiffs stated facts upon which relief could be 
granted and demanded strict proof that plaintiffs repre­
sented a class (Appeal No. 14,444, Appellants’ Appendix, 
16a). There as here (93a-103a) defendants claimed that 
for years they had been actively working with and carry­
ing forward a plan for elucidating, assessing and ultimately 
solving with “all deliberate speed” the problem of achiev­
ing a desegregated school system (Appeal No. 14,444, Ap­
pellants’ Appendix 17a). But no desegregation took place 
in the Chattanooga school system until it was ordered by 
the district court at the instance of the plaintiffs.

One of the Board’s original objections to desegregating 
the school system was fear of community resistance. The 
same type objection was raised five years later in 1965 
(57a-58a). This fear prompted the Board to adopt a 
program of “elucidation,” but it was claimed that the 
Board lacked “experience in the elucidation of such a 
problem to the community. The Board knew of no indi­
viduals or groups who had such experience so as to pro­
vide guidance to the Board” (Appeal No. 14,444, Appel­
lants’ Appendix 18a). The Board, in 1965, made a similar 
claim regarding teacher and other desegregation problems 
(117a-118a).

Defendant prayed in its June 7, 1960 answer for “ the 
court to enter its decree approving defendants’ plan for 
elucidation, thereby giving the necessary time in which to 
educate, reconcile and bring about acceptance of a plan of 
desegregation for the schools.” The district court in grant­
ing plaintiffs’ motion for Summary Judgment, construed 
the elucidation plea as “ simply a request for postpone­
ment of trial” (Appeal No. 14,444, Appellants’ Appendix 
99a), and on November 3, 1960, directed defendants to



4

submit a plan for desegregation of the Chattanooga schools 
(Appeal No. 14,444, Appellants’ Appendix 100a). The 
court, at the same time denied defendants’ motion for 
summary judgment filed subsequent to plaintiffs’, the Board 
asserting failure to exhaust administrative remedies and 
no right to file a class action (Appeal No. 14,444, Appel­
lants’ Appendix 53a, 54a).

Defendants appealed the decision of the district court 
after an unsuccessful motion for the court to amend its 
order of November 3, 1960 to permit a discretionary ap­
peal and to stay proceedings until final determination of 
the appeal (Appeal No. 14,444, Appellants’ Appendix 101a- 
102a). Thereafter defendants failed to win court approval 
of their motion to stay judgment pending appeal (Appeal 
No. 14,444, Appellants’ Appendix 112a-114a) and submitted 
a limited grade-a-year desegregation plan. The district 
court did not accept the plan and the Board also appealed 
this decision.

Both appeals failing, 295 F. 2d 617, the Board on remand 
finally obtained approval of their plan after elimination 
of minority transfer provisions and acceleration of speed.

Plaintiffs and defendants have both prosecuted subse­
quent appeals which have resulted in the reversal of an 
earlier court order striking allegations regarding teacher 
desegregation from the complaint, affirmance of the lower 
court’s rejection of minority transfer provisions, and ac­
celeration of the pace of desegregation in vocational and 
technical schools, 319 F. 2d 571.



0

Plan

At the time plaintiffs’ cause came on for hearing defen­
dant was operating under a plan which required desegrega­
tion as follows:

1. September 1962—grades 1-3 in 16 selected elemen­
tary schools;

2. September 1963—grades 1-4 in all elementary schools;
3. September 1964—remaining grades in all elementary 

schools;
4. September 1965—first year of junior high school;
5. September 1966—remaining grades in all junior high 

schools;
6. September 1967—first year in all high schools;
7. September 1968—-remaining grades in all high 

schools;
8. September 1964—Chattanooga Technical Institute 

and all other technical and vocational courses.1

S c h o o l  System

There are approximately 27,500 pupils in the Chatta­
nooga system. Over 12,000 (45%) are Negro (16a). In 
this vast system for the 1964-65 school year there were 
only 900 Negro pupils attending formerly all-white schools 
and 55 white students enrolled in three formerly all-Negro 
schools (7a).

1 Desegregation of Chattanooga Technical Institute was originally sched­
uled for September 1969. Plaintiffs won acceleration after a successful 
appeal to this Court. 319 P. 2d 571.



6

The entire system consist of 50 schools; 33 elementary, 
12 junior high and 5 high schools. Eighteen of these 
schools (12 elementary, 4 junior high, and 2 high schools) 
are predominantly Negro. Though eleven of the white 
elementary schools are affected by desegregation, only 
two (Avondale and Glenwood) have substantial propor­
tions of Negro pupils (17a-18a, 21a, 23a). There is also 
a minimum amount of desegregation in 3 formerly all- 
Negro schools (22a).

Initial Assignments

The record of school desegregation in Chattanooga is 
marked by a succession of Board pupil assignment prac­
tices and policies which have had the effect of minimizing 
court-ordered desegregation. Pupils in grades being de­
segregated have been assigned to schools by zone lines 
drawn, according to the Superintendent’s testimony: “ . . . 
as closely as we could to the school building to include 
enough children to fill the school, . . . ” even though he 
admitted such policy resulted in near complete segrega­
tion because of residential segregation (33a). Thus, under 
the Board’s desegregated zone lines, few Negro children 
are assigned to formerly white schools and even fewer 
white pupils are assigned to formerly Negro schools (32a).

Where major population shifts have taken place (29a- 
30a), the Board has taken more affirmative action, and 
has literally removed white schools from neighborhoods 
when substantial numbers of Negroes move into the area. 
As early as the 1960-61 school year, the School Board, 
anticipating court-ordered desegregation, closed all-white 
Clara Carpenter School to 200 whites residing in the 
area and opened it to 500 Negro pupils as a segregated 
school. The white pupils were sent to the then segregated



/

Avondale and Glenwood schools. Thus, when court-ordered 
desegregation became a reality the white pupils were 
safely in segregated schools, and “protected” under the 
umbrella of defendants transfer regulation 2-i which per­
mits continuation in the segregated school out of their 
zone (24a-25a).

The Riverside High School building which formerly 
housed all-white Chattanooga High School was closed as 
a white high school and opened as an all-Negro facility 
in the 1963-64 school year (28a). Slightly more than 1200 
white pupils were moved to New Chattanooga High, a 
new 1200 pupil capacity building situated in an area with 
no more than 10 or 12 Negro residents (29a). All faculty, 
personnel records and the only R.O.T.C. unit in the school 
system went with the students (36a-39a, 80a). Thus, the 
Board successfully moved the all-white high school out of 
a neighborhood which had become predominantly Negro 
(28a-29a).

This move taking place before court-ordered desegrega­
tion reached the junior high level, enabled the Board to 
transfer Negro pupils at the junior high level from East 
Fifth to Riverside along with the overflow of pupils from 
all-Negro Howard High (38a-39a). White junior high 
pupils from the East Fifth area were transported at the 
School Board’s expense four and a half or 5 miles to the 
all-white Hardy school (53a, 56a-57a). But, Negro pupils 
living in the Hardy area are not transported back to the 
East Fifth area because “ [t]hey moved by choice the 
board of education did not have anything to do with 
that” (57a).

Of course, as shall be shown infra, when defendants’ 
desegregation plan reaches these Hardy transferees they 
will be able to continue in their white school under the 
provisions of 2-i (54a).



Although all white senior high school pupils are per­
mitted to choose the high school they wish to attend (33a), 
the continued attendance of Negro students at Negro high 
schools has been insured by dividing the student popula­
tion at the Negro Howard and Riverside schools into 
zones and requiring attendance accordingly in the absence 
of special circumstances (40a). Defendant has even re­
modeled Riverside, by converting study halls and the 
R.O.T.C. Armory into classrooms to accommodate more 
Negro pupils (79a-81a).

Transfer Provisions

Defendants have several transfer regulations under which 
they may permit students to enroll out of their zone upon 
application by the parent. These transfers, granted for 
various reasons, including transfer to schools serving zones 
in which nurseries are located where the children are 
placed for before and after-school care, and transfers to 
aid working mothers. One provision (2-i) frequently used 
to frustrate desegregated assignments provides:

1. Pupils in rare cases are assigned by the Superin­
tendent of Schools for reasons of adjustment after 
thorough investigation and study by and on the rec­
ommendation of the Visiting Teacher Service.

2. The Board, insofar as conditions and capacity of 
buildings would permit, has always permitted stu­
dents to continue enrollment in a school by choice 
when a zone change was made that would move a 
student to a different school (139a).

Defendants admit that there are no objective criteria 
governing the use of this provision (32a).



9

As set forth above, defendants, by substituting residence 
for race as the key criteria in drawing zone lines, insure 
that only a minimal number of white pupils will be assigned 
to Negro schools. As a result, there are only three Negro 
school zones in which whites reside: East Fifth, Daven­
port and Louie Sanderson. These schools have 35, 15, and 
1 or 2 white pupils respectively (22a). But, while 80 white 
pupils reside in the East Fifth area, 45 have been con­
tinued in their former schools under transfer provision 
2-i (18a).

A study of the records shows clearly that defendants 
have effectively employed 2-i to retain segregation. In fact, 
the Superintendent admits that the result of the judg­
ments he exercised in administering the provisions of 2-i 
has been that it was “best for every white child zoned for 
a Negro school to leave that school and go to a white 
school” (50a). The Superintendent’s testimony indicates 
that transfers in 1964-65 were still being granted on the 
basis of race.

“If I am not mistaken there are probably more transfers 
allowed under that [2-i] which are not based on race 
than are based on race: I have cited you 45 cases that 
are based on race . . (52a-53a).

The policy ever since the original court order in this 
case has been to use 2-i to frustrate desegregation. At that 
time school officials consulted a number of Negro parents 
whose children were zoned to white schools and white 
parents whose children were zoned to Negro schools in­
forming them they had a right to continue under 2-i(2) in 
the school in which they were presently enrolled (44a-46a). 
No effort was made to advise Negroes of the right to trans­
fer from a Negro zone to a formerly all-white zone and



10

no public announcement was made (46a). No meetings 
were held with parents of Negro children assigned to Negro 
zones (47a). Negro childrens’ request for desegregated 
assignments outside the plan have been invariably denied 
(50a).

The bulk of the transfers granted since the 1962-63 
school year have been granted under 2-i. In that school 
year 129 of 202 transfers were granted under 2-i in grades 
1-9 (141a). Seventy-nine of the 129 were granted to pupils 
in grades 1-3, the only grades affected by desegregation 
at that time, an overwhelmning majority of them from de­
segregated to segregated schools (144a-146a).

In the 1963-64 school year 156 of 349 transfers were 
granted in grades 1-9 under 2-i (147a). Eighty-eight of 
the 156 were granted to pupils in grades 1-4, the only grades 
affected by desegregation at that time, resulting in in­
creased segregation in the schools (152a-154a).

Plaintiffs’ Exhibit 3 does not show transfers granted by 
race but, again, of 308 transfers granted during the 1964- 
65 school year 114 whites zoned to Negro schools were 
continued in their previous all-white schools under 2-i (18a- 
19a, 155a).

Teachers

The Chattanooga School Board has made no effort to 
assign teachers on an objective basis without regard to 
race or color (67a). In fact, the Superintendent’s belief 
is that segregated teacher staffs would help maintain a 
higher quality education for all children in the system 
(68a-69a). As a result, as of the May 1, 1965 hearing, there



11

were no white teachers assigned to Negro schools.2 Two 
Negro teachers are assigned to Avondale, an integrated 
school. They act, however, as assistant teachers or coun­
selors and have no regular homerooms (24a).

Based on the Avondale experience where there are 650 
Negro and 28 white pupils in attendance and the faculty 
is completely white, excepting the two Negro counselors 
with no regular teaching duties (67a, 72a-73a), the Super­
intendent has concluded that white and Negro teachers 
are unwilling to exchange ideas and that assigning Negro 
teachers to white schools will not help (66a-67a).

The Board justifies delay in desegregation of faculties 
because white teachers “do not understand Negro chil­
dren . . . why Negro children must continue to miff and 
wrestle with each other, miff as they call . . . ” (65a). 
The Superintendent acknowledged that the problem of 
white teachers not understanding Negro children is due 
to a lack of contact. He testified, however, that as an 
educational scientist he believed the necessary understand­
ing of other races can be developed without contact (84a).

Unaware of court-ordered faculty desegregation in 
Knoxville (62a-63a) and that faculty desegregation has 
begun in Nashville (64a), the Board denies that pupils 
have any right to faculty desegregation. Nonetheless, the 
Board has obtained funds from the Federal Government 
under §403 of Title IV of the Civil Rights Act of 1964 
to study and prepare for the problems presented by 
faculty desegregation (100a-105a).

2 There is a white teacher of Russian assigned to all-Negro Howard 
High, but this is a special case. The policy is not to assign white teachers 
to Negro schools (24a).



12

Testimony reveals that as a result of the Board’s segre­
gationist policies a number of Negro teachers are becom­
ing increasingly apprehensive about their job security, and 
this has had a negative effect on their morale and efficiency 
(122a).

Thus, a Resolution published by the Negro Teacher 
Association requests defendant to assign teachers with­
out regard to race or color. It expresses concern with the 
adjustment problems confronting Negro pupils which flow 
from the continued assignment of teachers on a segregated 
basis which leads in turn to retardation of the pupil deseg­
regation process (122a-124a).

The Negro teachers are also concerned with the increased 
hiring of white teachers and concurrent reduction in 
hiring of Negro teachers as increasing numbers of Negro 
pupils are assigned to formerly all-white schools leaving 
their Negro teachers behind (122a). The Board did not 
deny this practice (28a, 70a).



13

A R G U M E N T

I.

The Court Below Erred When It Held That the Rec­
ord Did Not Support a Conclusion That Defendants’ 
Transfer Regulation, 2-i, Was Used to Perpetuate Racial 
Segregation in the Chattanooga Public School System.

The relevant facts in the record when weighed by stan­
dards set by the Supreme Court of the United States 
lead inevitably to the conclusion that the court below 
erred in approving defendants use of 2-i.

The lower court was faced with abundant evidence that 
defendants are and have been using 2-i to frustrate court- 
ordered desegregation, including:

1. The Superintendent’s admission that 2-i is admin­
istered on a racial basis (52a-53a);

2. Testimony that the effect of the use of 2-i has been 
to retain a segregated school system (50a);

3. The Superintendent’s personal feeling that it is best 
for white children to attend white schools (50a), 
coupled with the absence of any objective criteria 
governing the use of 2-i (32a);

4. The active campaign of school officials encouraging 
Negro and white parents to exercise their 2-i rights 
with the effect of minimizing desegregation (44a- 
47a);

5. The excessive use over the years of 2-i as a transfer 
route from desegregated to segregated schools (18a- 
19a, 31a, 44a-46a, 52a-54a, 140a, 141a, 144a-146a, 147a, 
152a-154a);



14

6. The closing of white schools and transferring of en­
tire white student bodies to segregated schools so 
they will be able to continue in white schools out of 
their zones when court-ordered desegregation reaches 
them (24a-25a, 36a-37a, 53a-54a).

Appellants contend that 2-i is invalid as applied by the 
Board to permit pupils to evade desegregated school as­
signments. Under the provision, affected pupils through 
their parents, are given an option to attend the school in 
their zone or to continue in the school formerly serving 
members of their race. The provision can only serve to 
perpetuate segregation since pupils desiring to transfer 
from a segregated to a desegregated school are not able 
to do so. As such, it is a one-way street leading from 
desegregated to segregated schools.

In Goss v. Board of Education, 373 U. S. 683, the Su­
preme Court held a less sophisticated but no less effective 
transfer provision in violation of the Equal Protection 
Clause of the Fourteenth Amendment. There as here, the 
provision operated only for those seeking to obtain segre­
gated educations. More recently, this Court has applied 
the Goss case to invalidate a discriminatory transfer provi­
sion in Northcross v. Board of Public Education, 333 F. 2d 
661, 665-66 (6th Cir. 1964), and in an opinion rendered 
in a prior appeal of this very case, 319 F. 2d 571, 574, 
made clear that where there is an unconstitutional transfer 
provision involved, “no discretion . . . remains in a district 
judge to approve its inclusion in a plan, regardless of his 
control of its use.” Thus, this Court affirmed the holding 
of the trial court condemning the adoption of any transfer 
provision having as “ its primary purpose the delay or 
prevention of desegregation in accordance with the Plan



15

herein approved.” 203 F. Snpp. 843, 854 (E. D. Tenn. 
S. D., 1962).

In the Goss case, the Supreme Court intimated that 
transfer provisions such as 2-i might be viewed more sym­
pathetically if they clearly provided for pupils initially 
assigned to segregated schools a means of transferring to 
schools where a desegregated education could be obtained. 
Appellants submit that while such an amendment is essen­
tial to the provisions validity, the basic purpose for the 
desegregation plan of which section 2-i is a part, is the 
elimination not the perpetuation of segregation. This be­
ing the case, a more appropriate and no less valid provi­
sion should provide an easily available means for pupils 
seeking* desegregated educations, while greatly restricting 
all transfers for any purpose which have the reverse re­
sult. Such a provision was required in Dowell v. School 
Board of City of Oklahoma City Public Schools, 244 F. 
Supp. 971 (W. D. Okla. 1965), and considering the segre­
gated residential patterns in Chattanooga and the Board’s 
willingness to ignore the segregated school zones resulting 
from an initial assignment policy based on residence, the 
adoption of a similar provision here may be necessary if 
a large percentage of Negro pupils are actually to ex­
perience the desegregated education guaranteed them in 
the Brown case.



16

n.
Brown v. Board o f Education and Subsequent De­

cisions o f the United States Supreme Court Require the 
District Court to Give Immediate Consideration to Plain­
tiffs’ Contention That Faculties Are Allocated on a Ra­
cial Basis Where the School Board Has No Plans for 
Desegregated Faculty Assignments.

It is now clear that further delay in effectuating a plan 
for the desegregation of faculty assignments violate the 
principles settled in Brown v. Board of Education, 347 U. S. 
483, 349 U. S. 294. If there was ever any sincere doubt 
that the Brown decision requires desegregation of faculties 
it was finally dispelled in two recent orders by the Su­
preme Court, Bradley v. School Board, City of Richmond, 
Va., and Gilliam v. School Board, Hopewell, Va., 34 U. S. 
Law Week 3170 (No. 415, 416, Nov. 15, 1965).

In both cases, Negro petitioners sought writs of cer­
tiorari from decisions by the Court of Appeals for the 
Fourth Circuit approving the refusal of lower courts to 
even hold hearings on the effect of the continued assign­
ment of faculty on the basis of race. The Court, acting 
on the petitions and responses, granted the writs, and in a 
Per Curiam opinion, held petitioners were entitled to a 
full evidentiary hearing on their contention that faculty 
segregation retards the desegregation process. The Court 
stated that there was no reason to postpone the hearings, 
indicating:

. . . each plan has been in operation for at least one 
academic year; these suits had been pending for sev­
eral years; and more than a decade has passed since 
we directed desegregation of public school facilities 
“with all deliberate speed,” Brown v. Board of Educa­



17

tion, 349 U. S. 294, 301. Delays in desegregation of 
school systems are no longer tolerable. Goss v. Board 
of Education, 373 U. S. 683, 689; Calhoun v. Latimer, 
377 U. S. 263, 264-265; see Watson v. City of Memphis, 
373 U. S. 526.

While prior to its action in these cases, the Supreme 
Court had never directed its attention specifically to the 
issue of teacher desegregation, its decision in the Bradley 
and Gilliam cases is hardly a departure since it is clearly 
impossible to conceive any plan for the reorganization of 
public schools on a nonracial basis while teachers are still 
being assigned according to race. Moreover, faculty segre­
gation impedes the progress of pupil desegregation. 
Where students and parents are given a choice of schools 
by taking advantage of transfer provisions or otherwise, 
faculty segregation influences a racially based choice.

In the Chattanooga system 900 Negro students have suc­
cessfully enrolled in formerly all-white schools but only 
55 whites are enrolled in formerly all-Negro schools (7a). 
This is but another indication of the trend toward one­
way desegregation, i.e., Negro pupils leaving their all- 
Negro schools with all-Negro faculties and student bodies 
intact.8 It is obvious that if this trend continues without 
any corresponding integration of Negro faculty personnel, 
not only will meaningful pupil desegregation become im­
possible, but Negro teachers will be slowly squeezed out 
of the system, thereby frustrating future efforts to ac­
complish the faculty integration the Board resists today.

The United States Office of Education has recognized the 
negative consequences of pupil desegregation without cor-

3 See the comprehensive statistics published by the Southern Educa­
tion Reporting Service in its periodic “ Statistical Summary of School 
Seegregation-Desegregation in Southern and Border States”  14th Revi­
sion, November 1964, passim.



18

responding faculty desegregation. Thus, in implementing 
Title VI of the Civil Rights Act of 1964 (42 U. S. C. A. 
§20G0d) the Office of Education in its General Policy 
Statement requires school districts submitting plans for 
desegregation to comply with the following policies:

V.B.: Requirements Which All Desegregation Plans 
Must Satisfy

1. Faculty and staff desegregation. All deseg­
regation plans shall provide for the desegregation 
of faculties and staff in accordance with the fol­
lowing requirements:

a. Initial Assignments. The race, color, or na­
tional origin of pupils shall not be a factor in the 
assignment to a particular school or class within 
a school of teachers, administrators or other em­
ployees who serve pupils.

b. Segregation resulting from prior discrimina­
tory assignments. Steps shall be taken toward the 
elimination of segregation of teaching and staff 
personnel in the schools resulting from prior as­
signments based on race, color, or national ori­
gin. . .

The General Policy statement makes it clear that a 
school system in which “ [tjeachers or other staff who 
serve pupils remain segregated on the basis of race, color 
or national origin of the pupils in the school” may not 
execute “ An Assurance of Compliance (H. E. W. Form

4 General Statement of Policies Under Title V I of the Civil Rights Act 
of 1964 Respecting Desegregation of Elementary and Secondary Schools, 
United States Office of Education, Department of Health, Education 
and Welfare, April, 1965.



19

441)” qualifying the school system for federal financial as­
sistance.6

These standards adopted by the Office of Education for 
faculty desegregation, while not binding on the courts, are 
entitled to great weight See Singleton v Jackson Municipal 
Separate School District, 348 F. 2d 729, 731 (5th Cir. 
1965); Price v. Denison Independent School District Board 
of Education, 348 F. 2d 1010, 1013 (5th Cir. 1965).

More than two years ago this Court had an opportunity 
to consider the issue of teacher desegregation in a prior 
appeal of this case, 319 F. 2d 571 (1963), and held that 
plaintiffs were entitled to have their stricken allegations 
concerning desegregation of faculties restored to the Com­
plaint. This Court said:

We, however, read the attack upon the assignment of 
teachers by race not as seeking to protect rights of 
such teachers, but as a claim that continued assigning 
of teaching personnel on a racial basis impairs the 
students’ right to an education free from any con­
sideration of race. 319 F. 2d at 576.

Although the allegation was restored to the Complaint, 
the determination as to “when, if at all, it becomes neces­
sary to give consideration to the question under discus­
sion” was left to the district court. 319 F. 2d at 576. 
Bradley and Gilliam, however, make it clear that delays 
can no longer be tolerated in resolving the issue of faculty 
desegregation in public schools. See Goss v. Board of 
Education, supra, at 689; Calhoun v. Latimer, 377 U. S. 
263, 264-265; see, also, Watson v. City of Memphis, 373 
U. S. 526.

5 Supra, Part III. B.



20

The type of relief necessary to eliminate the problem 
of faculty segregation was granted only recently in Dowell 
v. School Board of Oklahoma City Public Schools, 244 F. 
Snpp. 971 (W. D. Okla. 1965), where the school board was 
required to adopt a plan leading to an equal distribution 
of nonwhite teachers throughout the school system.

III.

The Board’ s Plan on Its Face, and as Administered 
in Chattanooga During the Last Three Years, Is a Totally 
Ineffective Vehicle for the Prompt Elimination o f the 
Segregated School System as Required in Brown v. Board 
of Education and Subsequent Decisions o f the United 
States Supreme Court.

A review of the Board policies with regard to school 
desegregation in view of the present racial composition 
of the Chattanooga schools leads only to a conclusion that 
the Board has utterly failed to desegregate its schools so 
as to eliminate segregation and assure plaintiffs enjoy­
ment of their constitutional rights guaranteed by the 
Brown decisions.

Elementary school zone lines have been drawn to con­
form to racial neighborhood patterns to insure a minimum 
amount of integration (33a). There are only three Negro 
school zones with very few white residents (7a) and many 
of these have been transferred under 2-i (18a). Though 
no white high school has been zoned, defendant has, in 
anticipation of desegregation of these schools, zoned two 
Negro high schools (40a). As a result of these policies, 
over 96% of the pupils in the Chattanooga system were 
in segregated schools as of the May 1, 1965 hearing. None 
of these means may be legally used to deprive appellants



21

of their constitutional right to a desegregated education. 
Holland v. Board of Public Instruction, 258 F. 2d 730, 732 
(5th Cir. 1958). In Holland the Board was found to be 
taking advantage of racial neighborhoods to maintain a 
segregated school system.

The Board has expressed concern with the reluctance 
of the white community to accept large numbers of Negro 
pupils in formerly all-white schools (57a). This, no doubt, 
has been a factor in the adoption of school zone lines. In 
Northcross v. Board of Education of City of Memphis, 333 
F. 2d 661, 664 (6th Cir. 1964), this Court expressed itself 
on the subject.

Where the board is under compulsion to desegregate 
schools (1st Brown case, 347 U. S. 483) we do not 
think that drawing zone lines in such a manner as to 
disturb people as little as possible is a proper factor 
in rezoning the schools. 333 F. 2d at 664.

In Taylor v. Board of Education of Neiv Rochelle, 294 
F. 2d 36 (2nd Cir. 1965) the Second Circuit was faced 
with evidence of zoning which promoted racial segregation. 
It affirmed the lower court holding, 191 F. Supp. 181, 192 
(S. D. N. Y. 1961):

. . .  I see no basis to draw distinction, legal or moral, 
between segregation established by the formerly dual 
system of education as in Broivn, and that created by 
gerrymandering of school district lines and trans­
ferring of white children as in the instant case . . . 
The result is the same in each case: the conduct of 
responsible school officials has operated to deny the 
Negro children of the opportunity for a full and mean­
ingful educational experience guaranteed to them by 
the Fourteenth Amendment.



22

The record also reveals several incidents of large scale 
pupil movements and building use changes designed to 
perpetuate racial segregation (24a-25a, 38a-39a, 40a, 53a- 
54a, 57a, 79a, 81a). These practices cannot stand in the 
face of plaintiffs’ right to attend schools administered on 
a nonracial basis. Cooper v. Aaron, 358 U. S. 1, 17. Thus, 
school boards under an obligation to disestablish segre­
gated school systems cannot manipulate student bodies and 
school building use to retain segregation and at the same 
time claim that racial designations have been abandoned. 
See Cooper v. Aaron, supra; Goss v. Board of Education, 
supra. Indeed, all evasive schemes for segregation have 
been rejected. If intended to maintain a racial school sys­
tem, it makes no difference that such schemes are at­
tempted “ingeniously or ingenuously.” Downs v. Board of 
Education of Kansas City, 336 F. 2d 988, 995 (10th Cir. 
1964). The practice of using 2-i to keep segregation a step 
ahead of desegregation also contravenes the above author­
ities.

Leaving the requirements of Brown to one side, defend­
ants’ practice of transporting white pupils great distances 
to attend Hardy, a segregated school, while Negro pupils 
are required to transport themselves the same distance 
back from the Hardy area to all-Negro schools (56a), fails 
to meet the old “ separate but equal” doctrine of Plessy 
v. Ferguson, 163 U. S. 537. The only, and all-white 
R. 0. T. C. Unit at New Chattanooga High School (80a) 
is subject to condemnation for the same reason.

It is obvious that while the Board will reluctantly elim­
inate race as an ostensible criteria of pupil assignment in 
accordance with the specifics of court orders, it will not 
shoulder the burden or take the initiative in planning or 
implementing the policies and programs which clearly will



23

be required to eliminate racial segregation from every as­
pect of its large and complex school system. But this is 
precisely the obligation imposed on the Board by the Su­
preme Court. Brown v. Board of Education, 349 U. S. 294; 
Cooper v. Aaron, 358 U. S. 1. Courts which formerly held 
school boards to the lesser standard proclaimed in the 
well known dictum in Briggs v. Elliott, 132 F. Supp. 776, 
777 (E. D. S. C. 1955), to the effect that “ The Constitution, 
in other words, does not require integration. It merely 
forbids discrimination . . .” have now rejected this posi­
tion. The Fifth Circuit in Singleton v. Jackson Municipal 
Separate School District, 348 F. 2d 731 (5th Cir. 1965) said: 
“ . . . the second Brown opinion clearly imposes on public 
school authorities the duty to provide an integrated school 
system,” and the Eighth Circuit appears in accord. See 
Kemp v. Beasley,------F. 2 d ------- , 8th Cir., Oct. 27, 1965.

Appellants submit that this Court should place a similar 
responsibility on defendants. The nature of the issues 
presented on this appeal reflect a Board philosophy toward 
the desegregation process similar to the discredited Briggs 
v. Elliott view. Appellants are concerned that the desegre­
gation process has moved so slowly, particularly when all 
public facilities in the area have been desegregated (76a). 
Their reference to transfer procedures, initial assignment 
policies and the continuing segregation of teacher assign­
ments, are illustrative of some but certainly not all the 
corrective steps which will be required to desegregate the 
Chattanooga public schools. Indeed, the system’s size and 
complexity will likely prevent appellants from recognizing 
and translating into a litigable issue every procedure which 
might be used to disestablish the racial system.

Thus, if the rights of appellants and their class are to 
be realized within what after more than 11 years may be



24

considered a reasonable time, and without recourse to end­
less rounds of litigation, the Board should be required not 
only to correct the inequalities so patently obvious on the 
record, but also to take whatever positive measures are 
required to free the system of the educationally crippling 
and constitutionally condemned standards based on race.

Relief

For the foregoing reasons, appellants respectfully sub­
mit that the judgment of the court below should be re­
versed and the cause should be remanded with directions 
to the trial court requiring the appellee Board to present a 
new plan of desegregation, said plan to take effect at the 
beginning of the 1966-67 school year, which will:

1. Require amendment of the Board’s transfer provi­
sions, particularly Section 2-i so as to eliminate transfers 
sought to obtain a segregated education, and require provi­
sions which will permit pupils assigned to segregated 
schools to obtain transfer to desegregated schools;

2. Eliminate practices and procedures including, but not 
limited to, removal of white schools from integrated areas 
and the drawing of school zone lines based solely on resi­
dence where the effect is no different than if such lines 
had been based on race;

3. Immediately present a plan for the assignment of all 
teachers and other faculty personnel in accordance with 
qualifications and without regard to race.

In addition, an express duty should be imposed on the 
Board to integrate the school system, said duty to be car­
ried out by the adoption and implementation of all educa­



25

tionally sound procedures and practices which the Board 
may reasonably undertake.

Respectfully submitted,

J ack  G reenberg 
Derrick A . B ell , J r .

10 Columbus Circle
New York, New York 10019

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

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Plaintiffs-Appellants



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