Monroe v. City of Jackson, TN Board of Commissioners Brief for Petitioners

    I n the

Hujirrmr (tort nf tiir liutri i>iatrs
October T erm , 1967 

No. 740

B renda K. M onroe, et al.,
Petitioners,

B oard of Commissioners of the City 
of J ackson, T ennessee, et al.

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

BRIEF FOR PETITIONERS

J ack Greenberg
J ames M. Nabrit, III
M ichael Meltsner
M ichael J. H enry

10 Columbus Circle
New York, New York 10019

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

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee 37201

J. E mmett B allard
116 West Lafayette Street 
Jackson, Tennessee

Attorneys for Petitioners

Gerald A . S mith  
F ranklin  E . W hite

Of Counsel



I N D E X

PAGE

Citations to Opinions Below ......................... ... .............  1

Jurisdiction .....    1

Question Presented .....................................    2

Constitutional and Statutory Provisions Involved ..... 2

Statement of the Case .......... ... ................ ................. .....  2

Summary of Argum ent............ .................    18

A rgument—

Introduction.............        20

I. The Courts Below Applied an Erroneous 
Legal Standard in Reviewing the Adequacy of 
the Jackson Desegregation Plan ..................... 21

II. The Desegregation Plan Approved by the
Lower Courts Is Inadequate in That Peti­
tioners Demonstrated That the Zoning and 
Transfer Arragenments Were Not Designed
to Abolish the Dual System ............................  30

Conclusion .......................................................................... 34

Cases:
T able of A uthorities

Board of Education of Oklahoma City Public Schools 
v. Dowell, 375 F.2d 158 (10th Cir. 1967), cert. den.
387 U.S. 931, affirming Dowell v. School Board of 
Oklahoma City Public Schools, 219 F. Supp. 427 
(W.D. Okla. 1963), and 244 F. Supp. 971 (W.D. 
Okla. 1965) ................ .............................................19,25,29



11

Braxton v. Board of Public Instruction of Duval 
County (Fla.), M.D. Fla., Civil No. 4598, January

PAGE

24, 1967 ............................................................. ........... . 29
Bradley v. School Board, 382 U.S. 103 (1965) ............. 17
Briggs v. Elliott, 132 F. Supp. 776 (E.D. S.C. 1955)

16, 22
Brown v. Board of Education, 347 U.S. 483 (1954);

349 U.S. 294 (1955) ...............................3,17,18,20,21,22,
27, 28, 30, 33

Carr v. Montgomery County Board of Education
(Ala.), 253 F. Supp. 306 (M.D. Ala. 1966) ...............  29

Cooper v. Aaron, 358 U.S. 1 (1958) ........ .................. 18, 20,24
Coppedge v. Franklin County Board of Education (N.

Car.), 273 F. Supp. 289 (E.D. N.C. 1967) ................. 29
Corbin v. County School Board of Loudoun County 

(Va.), E.D. Va., Civil No. 2737, August 27, 1967 .....  29

Goss v. Board of Education, 373 U.S. 683 (1963) ...... 13,14

Kelley v. The Altheimer Arkansas Public School Dis­
trict No. 22, 378 F.2d 483 (8th Cir. 1967) ....18, 23, 29, 30

Kemp v. Beasley,------ F.2d — -  (8th Cir. No. 19,107,
Jan. 9, 1968) .................................................................. 23,29

Louisiana v. United States, 380 U.S. 145 (1965) ........... 27

Moses v. Washington Parish School Board (La.), E.D.
La., Civil No. 15973, October 19, 1967 .................. . 29

24Plessy v. Ferguson, 163 U.S. 537 (1896)

Reynolds v. Sims, 377 U.S. 533 (1964) ... 
Rogers v. Paul, 382 U.S. 198 (1965) .....

27
17



PAGE

Schine Chain Theatres v. United States, 334 U.S. 110 
(1948) ..................................................................... ..........  27

United States v. Jefferson County Board of Education,
372 F.2d 847 (5th Cir. 1966), affirmed en banc, 380 
F.2d 385 (5th Cir. 1967), cert. den. 389 U.S. 840 ....18, 21,

22, 23, 24, 29
United States v. Standard Oil Co., 221 U.S. 1 (1910) .... 27

Wheeler v. Durham City Board of Education, 346 F.2d 
768 (4th Cir. 1965) .......... ....................................... .......  32

Statutes:

28 U.S.C. §1254(1) ............................................................ 1

42 U.S.C. §1983 ....... ...................... ...... .......... ................. . 2

Other Authorities:

“Racial Isolation in the Public Schools,” Report of the 
United States Commission on Civil Rights (1967),
Yol. I ................................... ............ ...................... ..........  29

State of Tennessee, Department of Education, Equal 
Educational Opportunities Program, Fall 1966 De­
segregation Report on Tennessee’s Public Elemen­
tary and Secondary Schools (compiled from reports 
to the U. S. Office of Education) ..... ........................ . 17



In the

(Emtrt at tfye States
October T eem, 1967 

No. 740

B renda K. M onroe, et al.,
Petitioners,

B oard of Commissioners of the City 
of J ackson, T ennessee, et al.

ON WRIT OF CERTIORAEI TO THE UNITED STATES 
COURT OF APPEALS FOE THE SIXTH CIRCUIT

BRIEF FOR PETITIONERS

Citations to Opinions Below

The district court’s opinion is reported at 244 F. Supp. 
353, and is printed in the Appendix at pp. 365-389. The 
opinion of the Court of Appeals is reported at 380 F.2d 
955 and is printed in the Appendix at pp. 397-409. An 
earlier district court opinion in this case is reported at 
221 F. Supp. 968, and is printed in the Appendix at p. 33.

Jurisdiction

The judgment of the Court of Appeals was entered July 
21, 1967. The petition for writ of certiorari was filed Octo­
ber 19, 1967, and was granted January 15, 1968. The juris­
diction of this Court is invoked under 28 U.S.C. Section 
1254(1).



2

Question Presented

Whether the courts below erred by approving a school 
desegregation plan which failed to make reasonable pro­
visions to abolish the dual school system, and by using a 
standard for judging the plan which failed to recognize 
the affirmative duty of the school board to disestablish the 
segregated school system.

Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States, and 42 U.S.C. 
§ 1983 providing a right of relief in equity for violations 
of constitutional rights.

Statement of the Case

This is a school segregation case involving the public 
schools of the City of Jackson, Tennessee.1 Jackson is a 
small to medium-sized city in midwestern Tennessee, with 
a school system of almost 8,000 students, about 60% white 
and 40% Negro.2 As early as 1956, leaders of the Jackson 
Negro community began petitioning the Board of Com­
missioners to desegregate the schools in compliance with 
this Court’s decision in the School Segregation Causes

1 An action seeking desegregation of the adjoining Madison County, 
Tennessee school system is not involved in this petition. The county and 
city school systems were sued in the same complaint, but the county and 
city cases were severed and tried separately by the trial court. An 
appeal involving the county schools was argued and decided in the Court 
o f Appeals with this City case, but no petition for certiorari was filed 
in the County case.

2 In 1964-65, there were 3,194 Negroes and 4,610 white pupils in the 
system (Plaintiffs’ Exhibit 26, A. 359).



3

(Brown v. Board of Education, 347 U.S. 483, 349 U.S. 294) 
(A. 357-358). They met with failure until the 1961-62 
school year when the board admitted three Negro students 
to a white school (A. 24). The following year (1962-63), 
four more Negro students were admitted to a white school 
(A. 24). Except for these 7 students, the 13 schools in the 
system remained totally segregated in their student bodies 
and faculties. In the elementary grades 1-6, there were 
five white schools (Highland Park, Alexander, Whitehall, 
Parkview and West Jackson) and three Negro schools 
(Lincoln, South Jackson, Washington-Douglas). The jun­
ior high school grades (7-9) were served by two white 
schools (Tigrett Jr. High, Jackson Jr. High) and one 
Negro school (Merry Jr. High). Grades 10-12 were served 
by a white school (Jackson Senior High) and a Negro 
school (Merry Senior High—located in the same building 
with Merry Jr. High).

Petitioners, who are Negro pupils and parents in the 
Jackson public school system, brought this action January 
8, 1963, in the District Court for the Western District of 
Tennessee. Their complaint alleged that the Jackson Board 
of Commissioners operated a compulsory racially segre­
gated school system with a dual system of white and Negro 
schools, and that the individual plaintiffs had been dis- 
criminatorily denied admission in white schools in violation 
of their Fourteenth Amendment rights (A. 3). Petitioners 
sought injunctive relief to enable the named plaintiffs to 
attend specified white schools. In addition, they prayed 
for an order for a “ complete plan for the prompt and 
speedy reorganization of the entire systems of public 
schools . . . into unitary, nonracial systems of schools . . . 
[including] a plan for the assignment, education and treat­
ment of students or enrollees on a nonracial basis, the as­
signment and treatment of teachers, principals, . . .  on a



4

nonracial basis, and the elimination of all and any other 
discriminations in said systems . . . which are based on 
race or color” (A. 22). The district court promptly, on 
January 25, 1963, granted a preliminary injunction requir­
ing the admission of the four plaintiffs to previously white 
schools. The Board of Commissioners, by answer, denied 
that the school system was segregated and asserted that 
seven Negroes had been admitted to formerly all white 
schools under Tennessee’s Pupil Placement Act (A. 23, 24). 
However, the answer admitted that the Pupil Placement 
Act was “not adequate as a plan for reorganizing' the 
(City) schools into a nonracial system” (A. 25).

June 19, 1963, District Judge Brown granted plaintiffs’ 
motion for summary judgment and ordered the board to 
file a desegregation plan (A. 27). The board filed a pro­
posed plan July 19, 1963 (A. 29), and after an evidentiary 
hearing the plan was approved with modifications in August 
1963. (See 221 P. Supp. 968; A. 33-50.) The desegregation 
plan (A. 29) as modified by the August 20, 1963, judgment 
of the district court (A.42), provided for the elimination 
of compulsory segregation rules in five stages with all 
grades to be affected by the 1967-68 school year. As vari­
ous school grades were desegregated, the plan provided 
for the school officials to designate geographical attendance 
areas to be served by each school. Pupils residing within 
these areas had the right to attend the schools in their 
zones (A. 30). Pupils already in schools were permitted 
to remain where they were until graduation notwithstand­
ing the new zones. Additionally, the school superintendent 
was granted the power to “grant or require” transfers of 
pupils to schools other than the school in their zones on 
application or on his own initiative (A. 31-32). The court 
also approved—over petitioners’ objections of gerryman­
dering—the board’s school attendance zones for elementary



5

schools. The court held that the board “should have ad­
ministrative discretion in establishing unitary zones, pro­
vided that the zones do not clearly thwart the plan to bring 
about abolition of discrimination” (A. 39), and that the 
zones proposed “do not constitute an abuse of this discre­
tion” (A. 40). The court directed (in accord with the plan 
of gradual desegregation) that zone maps for junior high 
schools and senior high schools be filed in 1965 and 1966, 
respectively. In an addendum to the opinion (responding 
to a new trial motion), the court reiterated its view that 
the zones were not gerrymandered (A. 46).

After the desegregation plan had been in effect two 
years, the five Negro schools remained all-Negro as before; 
120 Negroes attended formerly white schools. The enroll­
ments by race for the 1964-65 term were :s

Bldg. Negro White
Elementary Schools Capacity Pupils Pupils Total
Lincoln 875 709 0 709
South Jackson 525 589 0 589
W  ashington-Douglas 525 434 0 434
Highland Park 700 0 590 590
Parkview 750 1 654 655
Whitehall 315 16 308 324
West Jackson 500 14 453 467
Alexander 750 87 628 715
Junior High Schools
Merry Jr. High 700 (+ 1 2 0 )4 752 0 752
Tigrett Jr. High 725 0 699 699
Jackson Jr. High 650 1 431 432
High Schools
Merry Senior High --------- 590 0 590
Jackson Senior High — 1 847 848

3,194 4,610 7,804

3 These enrollment figures are from Plaintiffs’ Exhibit 26 (A. 359-364); 
building capacity figures are from A. 81-89, 143.

4 The board decided in the Spring of 1965 to construct 4 new rooms 
to accommodate 120 more pupils at Merry.



6

In September 1964, when the plan was beginning* its 
second year of operation, the Negro plaintiffs filed a Motion 
for Further Relief and to Add Parties in which they at­
tacked the administration of the plan’s transfer provisions 
as racially discriminatory and again charged that the at­
tendance zones were gerrymandered (A. 51). Twenty-seven 
Negro children who complained that they had been denied 
transfer to white schools were permitted to intervene as 
plaintiffs, and the court ruled that plaintiffs could reopen 
the gerrymandering issue, as well as a faculty desegre­
gation prayer which had previously been deferred (Pre­
trial order of 9/28/64; A. 92). The board filed a map 
(reproduced at A. 105) proposing zones for the three junior 
high schools and requested the court’s approval (A. 104- 
105). Plaintiffs objected that the zone lines were drawn 
to perpetuate racial segregation and asked that the board 
be ordered to present new zones (A. 106). By a further 
motion plaintiffs sought the desegregation of all remaining 
grades in September 1965, and the elimination of discrimi­
nation in teacher in-service training programs and extra­
curricular activities (A. 109). The district court heard 
evidence on these matters on May 28 and June 18, 1965 
(A. 126-358).

The Superintendent of Schools, Mr. C. J. Huckaba, 
testified that the elementary and junior high school zones 
were prepared by considering such factors as the location 
of the schools, the size of the buildings, the location of the 
children and an effort to fit the number of students to 
the capacity of the schools (A. 132). The petitioners pre­
sented two experts in the field of education who testified 
that the elementary and junior high school zones proposed 
by the board were racially gerrymandered to achieve a 
high degree of racial segregation. Petitioners’ experts were 
Dr. Roger W. Bardwell, then Superintendent of Schools



7

of Elk Grove Township, Illinois, and Mr. Merle G. Her­
man, then Assistant Superintendent of Schools in Villa 
Park, Illinois.5 6 Dr. Bardwell and Mr. Herman conducted 
a study (Plaintiffs’ Exhibit No. 12) which was “designed 
to discover if the school zone lines . . . have been so drawn 
to obstruct the racial integration of the city’s schools” and 
also to answer “whether the free transfer policy as admin­
istered has fostered additional segregation in the schools” 
(Exhibit 12, Introduction). The experts prepared a series 
of exhibits, consisting of plastic overlay maps which may 
be viewed in booklet form or projected on a screen by an 
overhead projector (Plaintiffs’ Exhibits 12-21). The ex­
hibits locate all pupils attending the schools by race on 
maps showing the schools and zone lines. The procedure 
used in preparing the exhibits was a standard method 
which Dr. Bardwell said he used in presenting similar data 
to his own Board of Education (A. 213). Dr. Bardwell and 
Mr. Herman reached the following “conclusion” in their 
study (Exhibit 12) :

“These exhibits represent an actual picture of the 
total elementary school population and the total junior

5 Dr. Bardwell’s qualifications included B.S., M.S., and Ph.D. degrees 
from the University of Wisconsin in public school administration, fifteen 
years’ experience in school administration, and substantial experience in 
school building planning and zoning. The school district where he had 
been superintendent five years was approximately the same size as the 
Jackson system (A. 207-208).

Mr. Herman’s qualifications included a B.A. from McKendree College, 
and an M.A. and completion of most doctoral requirements at Washing­
ton University in St. Louis. His experience included three years’ public 
school teaching, seven years’ public school administration, and ten years 
college teaching in the field of education. During the period in which 
he was a college faculty member, he participated in many school surveys 
in a number o f different states, including zoning problems as part of 
those surveys. The system where he was Assistant Superintendent was 
also approximately the same size as the Jackson City school system (A 
246-247).



8

high school population located on maps as near to the 
pupil’s actual residence as possible. Elementary school 
zone lines have also been indicated, as well as two ex­
hibits (Nos. Y  and V I) which depict the proposed 
junior high school boundaries. It is possible to graph­
ically examine the actual school zoning and attendance 
situation in Jackson, Tennessee.

“Examination of this situation reveals:

(1) That elementary school attendance zones have 
been gerrymandered to create racially segre­
gated elementary schools.

(2) Proposed junior high school attendance zones 
are also drawn to perpetuate racially segregated 
schools at the junior high schools, grades 7, 8 
and 9.

(3) The present transfer policy seems to mitigate 
against desegregation of the Jackson schools. 
Large number of white children living in pre­
dominantly negro school zones have been per­
mitted to transfer out of these zones to white 
or predominantly white schools.”

The three junior high schools in Jackson had all been 
constructed during the period after 1955 during which the 
Board was operating a compulsory segregated school sys­
tem contrary to the decision in the School Segregation Cases 
(A. 232). Tigrett Jr. High, formerly all-white, is in the 
western part of Jackson; Merry, still all-Negro, is in the 
center of town; and Jackson Jr. High, formerly all-white, 
is in the southeastern part of the city (A. 378). The zone 
designated for the all-Negro Merry Junior High School 
is an irregularly shaped area, described as “ sort of an 
hour glass shape,” with a wide top, narrow center, and



9

wide bottom (A. 290), The lines were drawn “ consistently 
between the Negro and white populations” (A. 291) and 
the Merry zone thus included most of the Negro junior 
high students but very few white students. The Bardwell- 
Herman study concluded “ that the boundary zones for 
junior high school attendance have been drawn with the 
goal in mind to preserve racially segregated junior high 
schools to a large degree” (Plaintiffs’ Exhibit 12, see text 
accompanying Exhibit V ).

In developing these zones, as well as the elementary 
zones, the superintendent of schools apparently did not 
undertake to find out how many junior high and elemen­
tary students there were in the city and attempt to match, 
the numbers of students to the capacities of the respective 
schools, in spite of affirming that he used educational con­
siderations such as capacity of schools in formulating the 
zones. The only evidence of a count of students which 
he was able to offer was a racial residential census of all 
children aged 1-18 in the city, and not a count of relevant 
age groups for junior high school and elementary school 
zone planning (A. 129, 141, 145-146, 155, 162, 167, 182-183).

Analyzing a racial residential map of the city showing 
the locations of the residences, and the race, of all junior 
high students in the school system (Trial Exhibit 19, A. 
211), plaintiffs’ educational expert Merle Herman con­
cluded with regard to the junior high school zones: “ There 
seems to be a very distinct tendency for the lines to fol­
low the residences of Negroes and whites—in other words, 
separating the two. Where there is a large Negro popula­
tion, there tend to be lines drawn to maintain segregation 
in the schools that serve those areas” (A. 250).

After the desegregated junior high school zones were 
announced for the following year in late 1964, and after



10

the school system had discovered from the 1964-65 enroll­
ment figures that all-Negro Merry Junior High School, 
which then accommodated all but one of the Negro junior 
high school students in the city, was over capacity, the 
Board of Commissioners decided in the spring of 1965 to 
construct four additional classrooms at Merry so as to 
increase its capacity by 120 (A. 143, 184). This decision 
was made despite the facts that (1) the enrollments of 
the two previously all-white junior high schools were ap­
proximately 300 students under capacity, and (2) the ele­
mentary school enrollment figures indicated that total 
junior high enrollment for the system would remain con­
stant at about 100 students above the present enrollment 
for at least the next four years (A. 143, 259-260).

When asked whether based on his experience no white 
children could be expected to enroll in Merry Junior High 
School and would it not therefore remain all-Negro, the 
Superintendent of Schools said, “Judging on the basis of 
what has happened up to now, that might be the case. . . . 
I imagine it will be predominantly Negro” (A. 185-186). 
He also expected that the small number of Negro students 
from the other two zones of the heretofore all-white junior 
high schools would continue coming to Merry, something 
the board’s transfer policy would encourage (A. 186). The 
superintendent attempted to justify the construction of 
an addition to Merry Junior High by pointing out that 
all-Negro Merry Senior High School (in the same build­
ing), was growing and might need some of the rooms pres­
ently used by the junior high school. But he also admitted 
that the all-white senior high school (not yet then deseg­
regated) was 249 students under capacity (A. 186).

With respect to the elementary schools, Dr. Bardwell 
testified that his analysis showed that “ if geography were 
the main criterion for the zoning of the schools, why most



11

all of the schools would be integrated with the exception 
of Highland Park, and Lincoln would be predominantly 
negro, but the balance of the schools would be integrated 
to a much greater degree than they are” (A. 219-220; see 
also, Plaintiffs’ Exhibit 12, text accompanying Exhibit 
V II).

Dr. Bardwell was unequivocal in his observation about 
the board’s proposed zones:

I said that the boundary lines were drawn so that the 
majority of the schools remained highly segregated. 
That was my conclusion. (A. 236)

Mr. Herman agreed (A. 254):

Well, the elementary school lines are built in such a 
way that they tend to promote segregation. One can 
never deal with the motivation behind them. It is just 
an apparent type of thing that strikes you when you 
look at the information that we have put together.

Plaintiffs proposed a specific plan for the junior high 
schools which would have produced three integrated junior 
high schools. Plaintiffs’ educational expert Merle Herman 
explained that a standard basis for drawing junior high 
school zones was the “feeder” principle. By this principle, 
junior high school zones are based on elementary school 
zones and are composed by clustering several such zones 
so that all students from the same elementary school go 
on to attend the same junior high school (A. 248-251, 255, 
293-296).

Mr. Herman concluded that using the accepted “ feeder” 
principle, the existing elementary schools in the city were 
located so that they could be conveniently clustered into



12

zones to produce three completely integrated junior high 
schools. The proposed feeder zoning plan was: (1) Park- 
view (white), Washington-Douglass (Negro), and White­
hall (white) elementary school zones to constitute the 
zone for Jackson Junior High School; (2) Highland Park 
(white), “West Jackson (white), and South Jackson (Negro) 
elementary school zones to be the zone for Tigrett Junior 
High School; and (3) Alexander (white) and Lincoln 
(Negro) elementary school zones to be the zone for Merry 
Junior High School (A. 255, 293-296). Each elementary 
school is located conveniently to the proposed junior high 
school, and the capacities of the elementary schools were 
matched to the junior high schools (A. 255, 293-296). Mr. 
Herman concluded that by drawing the zones in accordance 
with the “ feeder” principle, “ the junior high school zones 
would be developed objectively, without regard to the racial 
character of the neighborhood” and “ from an educational 
point of view, it would be sound” (A. 255).

Transfer Policy. The original plan of desegregation ap­
proved by the district court in 1963 (A. 371-372) provided 
that any transfer policy could be adopted as long as it did 
not have as its purpose the delay of desegregation. The dis­
trict court found in 1965 that the school system had ad­
ministered its transfer policy in the following manner: 
“They have allowed white pupils as a matter of course to 
attend schools, outside of their unitary zones, in which 
white pupils predominate, and have allowed Negro pupils 
as a matter of course to attend schools, outside of their 
unitary zones, attended only by Negroes but they have de­
nied Negroes (and specifically intervening plaintiffs) the 
right to attend predominantly white schools outside of their 
unitary zones” (A. 372). In other words, the board was 
using, up through 1965, the “minority to majority” racial



13

transfer policy which had been condemned by this Court 
in 1963 in Goss v. Board of Education, 373 U.S. 683 (1963).6

Dr. Bardwell pointed out that where the Board had 
zoned all of the schools in such a way that their enroll­
ments were conspicuously either predominantly white or 
almost all-Negro, and thus preserved the racial identity 
of the schools as they were under the dual school system, 
the availability of the free transfer option caused the racial 
identification of the schools to become even more pronounced 
by permitting the remaining students of the minority race 
in each school to transfer out. He indicated that where 
the school system had conferred racial identities on indi­
vidual schools, it would be expected that minority students 
would transfer out of those schools because they were of 
the minority race and this was confirmed by the fact of 
an abnormally large number of transfers within the sys­
tem (A. 223-224, 238-239). Merle Herman pointed out that 
the effect of a free transfer system superimposed on ra­
cially identified schools would operate “ to maintain what­
ever the attitude structure is of the people who have 
children in those schools: and the attitude toward inte­
gration was obviously unfavorable because of the large 
number of minority to majority transfers (A. 249-250). 
He explained: “ If zoning would not accomplish what some 
people might consider to be a proper solution to their own 
personal problems, they could then use transfer as a means 
by which they could solve their problems” (A. 250). Mr.

6 Other aspects of the system’s transfer policy were also administered 
in accordance with the principle of a segregated dual school system. The 
Jackson city school system admitted 385 students from surrounding 
Madison County and all white students were assigned to schools which 
were all-white or predominantly white and all Negro students to schools 
which were all-Negro (A. 255-257; Plaintiffs’ Exhibit 20). County trans­
ferees of the predominant race in any particular school were apparently 
given priority in assignment over city students of a minority race who 
actually resided in the zone o f that school (A. 256-257).



14

Herman concluded that since “It is an accepted fact here, 
I think, that white children attend white schools and Negro 
children attend Negro schools,” that even though a com­
pletely open transfer policy was superimposed on the 
board’s junior high school zones based on race, “ segrega­
tion will continue to exist” ( A. 253).

The Bardwell-Herman study of the junior high school 
zones indicated how the transfer plan operated with the 
zones to achieve segregation. As stated in the study (Plain­
tiffs’ Exhibit 12, text accompanying Exhibit Y I ) :

This exhibit indicates the possibility of using an 
open transfer plan to promote an almost completely 
segregated school system at the junior high level be­
cause of the gerrymandered school zone lines and rela­
tively few children to be granted transfer to achieve 
a high degree of segregation.

This “high degree of segregation” was achieved notwith­
standing the fact that the white junior high school popula­
tion “ distributes itself over the entire city” because the 
Negro junior high population “distributes itself in the cen­
ter of the city” (Plaintiffs’ Exhibit No. 12, text accompany­
ing Exhibit Y ). When most of the Negroes in Jackson were 
zoned into Merry Junior High zone, and the few whites 
living in the zone were permitted to transfer out, an all- 
Negro school was the result.

The district court rendered an opinion July 30, 1965 
(A. 365; 244 F. Supp. 353), and an order on August 11, 
1965 (A. 390). The court held that the board’s transfer 
policy had been administered in an unconstitutional man­
ner in violation of Goss v. Board of Education, 373 H.S. 
683 (1963) (A. 372). The court ordered that if the defen­
dants continue the policy of allowing all pupils transfers to



15

schools where they will be in a racial majority, they must 
also allow pupils to transfer to attend schools where they 
will be in a racial minority (A. 392-393). The court also 
ordered that each pupil be required to register in the 
school in his zone before applying for a transfer (A. 393).

Judge Brown ruled that some of the elementary school 
zones “ appear to be gerrymandered” (A. 393) and ordered 
that boundaries separating three pairs of white and Negro 
schools be adjusted. Each adjustment resulted in placing 
adidtional Negro pupils into formerly white zones. But, the 
court rejected the claim that junior high school zones were 
gerrymandered and approved the board’s proposed zones 
(A. 394).

The court ordered that desegregation be accelerated 
to cover all junior high grades in 1965-66 and all grades 
in 1966-67 (A. 394). Belief requiring integration of 
faculties was denied, except that the court ruled that in 
1966-67 the board should seek teachers to volunteer for 
non-segregated assignments (A. 394). Jurisdiction of the 
cause was retained “ pending full implementation of de­
segregation” (A. 396).

Judge Brown’s opinion began by stating that the law 
was not clear “as to whether the Constitution requires only 
an abolition of compulsory segregation based on race or 
requires something more” (A. 366). He thought this a 
question that “must first be answered before we can 
deal with the assignment and transfer issue and the gerry­
mandering issue” (A. 366), and after some discussion, 
decided that segregation resulting from “purely volun­
tary choice” or resulting from “ ‘honestly’ arrived at 
geographical zoning” did not violate the Constitution: 
“ the Constitution does not require integration . . .  it only 
requires the abolition of compulsory segregation based on 
race” (A. 371). The court stated its reliance upon the



16

famous dictum of Briggs v. Elliott, 132 F. Supp. 776 (E.D. 
S.C. 1955).

Reasoning from this premise, Judge Brown disregarded 
the testimony and desegregation proposals of plaintiffs’ 
experts because they sought “ integration” :

. . .  [T]he value of the testimony of these experts was 
undercut by the fact that they assumed that it is the 
duty of defendants to maximize integration because 
of educational benefits that would, in their opinion, 
flow therefrom. The value of their testimony with 
respect to elementary schools was further somewhat 
undercut because their maps were aimed to show the 
amount of de facto segregation that has resulted after 
two years under the plan. However, in view of volun­
tary transfers by white and Negro pupils, the degree 
of actual segregation in these schools does not itself 
show that the zones are gerrymandered. The value of 
the testimony of these experts with respect to junior 
high schools was somewhat undercut because they not 
only again assumed a duty to maximize integration 
but also assumed that defendants had the duty to adopt 
a “ feeder” system whereby certain elementary schools 
would send their graduates only to a particular junior 
high. (A. 376)

The Negro plaintiffs appealed and the Court of Appeals 
for the Sixth Circuit affirmed except with respect to the 
faculty segregation issue, on July 21, 1967 (A. 397). The 
court below asserted that the:

. . . Fourteenth Amendment did not command com­
pulsory integration of all of the schools regardless of 
an honestly composed unitary neighborhood system 
and a freedom of choice plan. (A. 399)



17

The court stated that the Brown decision prohibits “ only 
enforced segregation” (id.), and that it would apply the 
same rule it had applied in a Cincinnati case where the 
schools were desegregated long before Brown (A. 399-400). 
It said:

However ugly and evil the biracial school systems ap­
pear in contemporary thinking, they were, as Jefferson, 
supra [372 F.2d 836 (5th Cir. 1966)] concedes, de jure 
and were once found lawful in Plessy v. Ferguson, 163 
U.S. 537 (1896), and such was the law for 58 years 
thereafter. To apply a disparate rule because these 
early systems are now forbidden by Brown would be 
in the nature of imposing a judicial Bill of Attainder. 
(A. 400-401)

The court then stated its approval of the trial judge’s 
decision that the junior high school zones were not gerry­
mandered. The trial court decision refusing relief on the 
faculty desegregation question was reversed and the issue 
remanded for reconsideration in light of Bradley v. School 
Board, 382 U.S. 103 (1965), and Rogers v. Paul, 382 U.S. 
198 (1965).

The record herein contains no enrollment figures in­
dicating the results of the plan’s operation while the case 
has been pending on appeal. However, published data re­
flects that during the 1966-67 school term, Jackson’s five 
Negro schools remained all-Negro, while 475 Negro students 
attended racially mixed schools and 2,730 remained in all- 
Negro schools.7 In the current 1967-68 school year, 615

7 Respondents’ Brief in Opposition to Certiorari, p. 4, filed November 
1967; see also, State of Tennessee, Department of Education, Equal Ed­
ucational Opportunities Program, Fall 1966 Desegregation Report on 
Tennessee’s Public Elementary and Secondary Schools (compiled from 
reports to the U. S. Office of Education).



18

Negro students attend mixed classes while 2,613 are in all- 
Negro schools.8

Summary of Argument

I. Brown v. Board of Education, 347 U.S. 483 (1954); 
349 U.S. 294 (1955), directs the district courts to consider 
the adequacy of school desegregation plans to eliminate 
racial discrimination in public school systems. School 
officials have an affirmative duty to initiate desegregation. 
Cooper v. Aaron, 358 U.S. 1 (1958).

The courts below applied an erroneous legal standard 
in appraising the Jackson Board’s desegregation plans 
by rejecting the argument of petitioners that the board 
had an affirmative duty to abolish the dual system. School 
segregation plans should be judged by whether they are 
reasonably designed to convert dual systems into unitary 
systems. Adequate plans should desegregate both formerly 
all-white and formerly all-Negro schools. Jackson’s plan 
left the all-Negro schools intact while permitting a few 
Negroes to enter formerly all white schools. The courts 
below appraised the plan and the evidence by reference 
to a misconception of the applicable law which rejected the 
notion that school boards are affirmatively obligated to 
disestablish patterns created by the segregation laws and 
practices. Other courts of appeals have applied more ap­
propriate standards for appraising desegregation plans. 
United States v. Jefferson County Board of Education, 
372 F.2d 847 (5th Cir. 1966), affirmed en banc, 380 F.2d 
385 (5th Cir. 1967), cert. den. 389 U.S. 840. Kelley v. 
The Altheimer Arkansas Public School District No. 22, 
378 F.2d 483 (8th Cir. 1967) ; Board of Education of Okla­

8 Ibid.



19

homa City Public Schools v. Dowell, 375 F.2d 158 (10th 
Cir. 1967), cert. den. 387 U.S. 931.

II. The desegregation plan proposed for Jackson, Ten­
nessee, including particularly the junior high school zoning- 
arrangements and the transfer plan, was not reasonably 
designed to abolish the dual school system. Plaintiffs made 
an unrebutted showing that the junior high school zones 
were racially gerrymandered, and that the transfer policy 
operated with the racial zones to insure a high degree of 
segregation. The school board’s construction policies com­
plemented the zoning arrangements to promote segrega­
tion. Having found gerrymandering at the elementary 
school level, the trial court should have treated the oddly- 
shaped junior high school zones with great suspicion. 
Plaintiffs proposed feeder plan would have desegregated 
each of the city’s junior high schools. The court should 
have ordered this plan or some other arrangement equallv 
likely to desegregate the system. If the record is not 
deemed sufficient to justify the immediate disapproval of 
the board’s plan, at the least the trial court should be 
dii ected to reappraise the case in view of the appropriate 
standard, e.g. the requirement that school boards take 
affirmative steps to abolish the dual system.



20

ARGUMENT

Introduction

This case presents important questions relating to the 
implementation of this Court’s decision that racial segre­
gation in the public schools violates the Equal Protection 
Clause of the Fourteenth Amendment. Brown v. Board of 
Education, 347 U.S. 483 (1954); 349 U.S. 294 (1955). In 
the second Brown decision, swpra, the Court directed that 
the lower federal courts “ consider the adequacy of any 
plans that the defendants may propose . . .  to effectuate 
a transition to a racially nondiscriminatory school sys­
tem” . (349 U.S. at 301). Subsequently the Court empha­
sized the affirmative duty of school authorities, saying that 
they “were thus duty bound to devote every effort toward 
initiating desegregation and bringing about the elimination 
of racial discrimination in the public school system” . 
Cooper v. Aaron, 358 U.S. 1, 7 (1958). The courts below, 
in the instant case, approved a desegregation plan (pro­
posed by local school officers and objected to by Negro 
parents) holding that the plan fully complied with the 
board’s obligations to implement Brown, supra. Petitioners 
submit, first, that both courts below applied an improperly 
restrictive legal standard for judging the adequacy of the 
desegregation plan, by rejecting the idea that equity courts 
are obliged to require affirmative efforts to abolish the 
dual segregated school system. Second, it is urged that 
the Jackson plan was demonstrated to be inadequate be­
cause the school zoning and pupil transfer arrangements 
were not reasonably calculated to abolish the dual system 
which had been created under segregation laws and prac­
tices. Alternately, it is submitted, that if the Court does 
not find the plan inadequate on this record, at the least



21

the cause must be remanded to the trial court for re­
appraisal of the plan’s features using a correct legal 
standard.

I.
The Courts Below Applied an Erroneous Legal Stan­

dard in Reviewing the Adequacy of the Jackson Deseg­
regation Plan.

Both courts below deemed the definition of the basic 
constitutional standard to be applied in reviewing a pro­
posed desegregation plan to be the decisive matter at issue. 
Petitioners’ position on this question has been variously- 
stated and characterized by respondents and by the courts 
below; we state it on our own terms in the following para­
graph.

Because the Jackson school officials have established an 
unconstitutional dual system of segregated schools, it is 
their affirmative duty to abolish the dual system. Abolish­
ing the dual system involves desegregating the all-Negro 
schools as well as the all-white schools. The Brown de­
cision held that “ segregation of children in public schools 
solely on the basis of race . . . deprive [s] the children of 
the minority group of equal educational opportunities.” 
(347 U.S. at 493). “The governmental objective of [‘con­
verting the dual system of separate schools for Negroes 
and whites into a unitary system’ ] . . . is— educational op­
portunities on equal terms to all.” 9 “ The criterion for 
determining the validity of a provision in a school deseg­
regation plan is whether the provision is reasonably re­
lated to accomplishing this objective.” 10 It is not suffi­

9 United States v. Jefferson County Board of Education, 380 F.2d 385, 
390 (5th Cir. 1967).

10 Id.



22

cient for a court to consider merely the abstract constitu­
tionality or reasonableness of a desegregation plan’s pro­
visions. The Court should judge whether, when viewed 
in a practical context, the provisions are reasonably cal­
culated to abolish the dual system of white and Negro 
schools speedily and effectively and to the greatest extent 
feasible in the circumstances. Finally, the plan must be 
tested in actual operation “by measuring the performance 
—not merely the promised performance—o f school boards 
in carrying out their constitutional obligation ‘to disestab­
lish dual, racially segregated school systems and to achieve 
substantial integration within such systems’ ” .u

We urge that these propositions are well supported by 
decisions in the lower courts which have been congenial to 
implementation of the Brown decision. The contrary posi­
tion of the courts below should be repudiated. The essence 
of the matter is that the courts below have declined to 
accept the argument that the school board has an affirmative 
duty to disestablish the segregated system.

The District Judge emphasized the well-known dictum 
enunciated by Judge Parker in Briggs v. Elliott, 132 F. 
Supp. 776 (E.D.S.C. 1955) six weeks after the second 
Brown decision, that the Constitution “ does not require 
integration” . Briggs sounded the call for resistance to 
Brown. It was an attempt to narrow the scope of the 
opinion so as to almost deprive it of meaning. Briggs 
has been argued as the supporting foundation for almost 
every evasive effort to subvert Brown which has come be­
fore the courts. It has never been recognized in this Court, 
and has quite properly been repudiated as inconsistent 
with Brown in numerous recent cases in the courts of ap- 11

11 United States v. Jefferson County Board of Education, 372 F.2d 847, 
895 (5th Cir. 1966), affirmed en banc, 380 F.2d 385 (5th Cir. 1967), cert 
den. 389 U.S. 840 (1967).



23

peals. See e.g. United Slates v. Jefferson County Board of 
Education, supra, 372 F.2d at 846, 861-873; 380 F.2d at 389;
Kemp v. Beasley, ------  F.2d ------  (8th Cir. No. 19,107,
Jan. 9, 1968); Kelley v. The Altheimer, Arkansas, Public 
School District No. 22, 378 F.2d 483, 488 (8th Cir. 1967).

The holdings by the trial court reject the idea of an 
affirmative obligation by the school board to abolish the 
dual system in several ways. The court used its conclu­
sion that the Constitution did not require “integration” 
to justify its disregard of the careful study made by peti­
tioners’ expert witnesses who testified that the Jackson 
school zones were racially gerrymandered. Their presen­
tation was disregarded because the Court thought their 
testimony assumed the desirability of “ integration” . Simi­
larly, the court, took the view that school board discretion 
in establishing attendance zones “ should not be overridden 
unless it constitutes a clear abuse of this discretion” (A. 
46). The Court thus limited its inquiry about the zones 
to a search for an abuse of discretion without any ex­
pressed indication of concern for the practical impact of 
the proposed zones on the separation of the races in the 
school system. Uncontradicted evidence that the zone lines 
maximized the racial separation was disregarded.

The trial court’s standard for appraising the desegrega­
tion plan was seriously in error in that it failed to recog­
nize that a prime objective of the desegregation plan must 
be to accomplish the actual desegregation of the schools 
and the elimination of the dual system. The trial court’s 
view focused entirely on whether the desegregation plan 
used non-racial and non-discriminatory mechanisms for 
assigning pupils and disregarded the practical impact of 
these rules on the pre-existing dual system. A  principal 
feature of the dual system is the existence of a number 
of all-Negro schools. Obviously abolition of the dual sys­



24

tem of separate white and Negro schools should include 
desegregation of both sets of schools and the elimination 
of racially identifiable schools. But the Court approved 
a plan which was manifestly designed to preserve the all- 
Negro schools intact, and rejected petitioners’ experts’ 
proposal to desegregate all junior high schools by a feeder 
system, saying that their plan was intended to “ integrate” 
the schools.

The Court of Appeals also characterized petitioners’ 
arguments as a demand for “compulsory integration” . The 
Court said it was unfair and impermissible to impose a 
duty on the Jackson school board which had established 
segregation under the aegis of Plessy v. Ferguson, 163 
U.S. 537 (1896), that was not imposed on a school board 
that had no history of compulsory segregation. By so 
defining the problem the Sixth Circuit also refused to 
follow the legal rule stated in United States v. Jefferson 
County Board of Education, supra, that there is an affirm­
ative duty placed on school boards to devise plans to abol­
ish the dual system.

The Court of Appeals approved the trial judge’s opin­
ion which it said “ concludes that the Fourteenth Amend­
ment did not command compulsory integration of all of 
the schools regardless of an honestly composed unitary 
neighborhood system and a freedom of choice plan” (A. 
399). We think this formulation mistakes the crucial is­
sues. The vital inquiry in appraising a plan intended to 
implement the Broivn decision is not merely whether school 
attendance zones are demonstrably dishonest. The central 
inquiry ought to be whether the zones are reasonably de­
signed to abolish the segregated system. If the Board’s 
duty is to “ devote every effort toward initiating desegre­
gation” (Cooper v. Aaron, supra, 358 U.S. at 7), surely 
this duty must include something beyond merely refrain­



25

ing from drawing dishonest, plainly arbitrary, or segre­
gationist zones. There is a duty to make a reasonable 
effort to actually desegregate those schools which the state 
previously established and maintained for one race only.

Pupil transfer rules adopted as part of a desegregation 
plan should also be required to meet a similar test. In 
this case the trial court ruled that transfer applications 
must be granted to all without discrimination and en­
joined the board’s former practices which it said were 
racially discriminatory. The court left it open to the Jack- 
son system to continue a transfer arrangement by which 
every white pupil zoned into a Negro school area trans­
ferred out of his zone to a white school and thus perpetu­
ated the all-Negro schools. Experience showed that every 
white child who was zoned into a Negro school had sought 
and been granted a transfer to a white school. Everyone 
—all the parties and the courts below—fully understood 
and expected that this pattern, which has held true through­
out the south, would continue and that the all-Negro 
schools would remain all-Negro notwithstanding the fact 
that white pupils did live in the zones designated for 
these schools. It was error, we submit, for the courts be­
low to approve a transfer arrangement which was thus 
manifestly designed and expected to defeat the objective 
of eliminating the dual system.

The appropriate standard for appraising desegregation 
plans is illuminated by Board of Education of Oklahoma 
City Public Schools v. Dowell et al., 375 F.2d 158 (10th 
Cir., 1967), cert. den. 387 U.S. 931, affirming Dowell et al. 
v. School Board of Oklahoma City Public Schools, 219 F. 
Supp. 427 (W.D. Okla. 1963) and 244 F. Supp. 971 (WJD. 
Okla. 1965). The Court of Appeals for the Tenth Circuit 
was confronted with a school system which had announced 
a formal desegregation plan by unitary zoning in 1955.



26

Nevertheless, the unitary zoning plan had preserved a 
number of all-Negro schools because of racially designed 
building locations, racial residential segregation, and a 
racial “minority to majority” transfer plan. At the time 
of the final district court decision in 1965, 80% of the 
Negro students in the system were still attending schools 
which were all-Negro or at least 95% Negro.

The Oklahoma district court, after ordering a study by a 
panel of independent educational administrators, required 
the school system to take specific and affirmative actions 
recommended by the panel to begin the process of disestab­
lishing segregation, including: (1) a consolidation of the 
attendance districts and changes in the grade structures 
of two pairs of nearby six-year secondary schools so as to 
completely integrate the four schools, and (2) adoption of 
a transfer plan by which any student who was in the racial 
majority in any school in the system could transfer as a 
matter of right to any other school in which he would be 
in the racial minority. The Tenth Circuit held that “under 
the factual situation here we have no hesitancy in sustain­
ing the trial court’s authority to compel the board to take 
specific action in compliance with the decree of the court 
so long as such compelled action can be said to be neces­
sary for the elimination of the unconstitutional evils 
pointed out in the court’s decree.” 375 F.2d at 166.

Judge Lewis, concurring, explained the Court’s view that 
since compulsion was used to maintain the system of seg­
regation, the compulsion inherent in school assignment 
policies could properly be used to disestablish segregation:

I have no quarrel with the statement that forced in­
tegration when viewed as an end in itself is not a 
compulsion of the Fourteenth Amendment. But any 
claimed right to disassociation in the public schools



27

must fail and fall. I f desegregation of the races is to 
be accomplished in the public schools, forced associa­
tion must result, not as the end sought but as the path 
to elimination of discrimination. And, to me, the argu­
ment that racial discrimination cannot be eliminated 
through factors of judicial consideration that are based 
upon race itself is completely self-denying. The prob­
lem arose through consideration of race; it may now 
be approached through similar but enlightened consid­
eration. 375 F.2d at 169.

In the second Brown decision, 349 U.S. 294 (1955), this 
Court directed that “in fashioning and effectuating the 
decrees [requiring desegregation], the courts will be guided 
by equitable principles.” 349 U.S. at 300. The general 
equity principle is that there is no wrong without a remedy, 
and therefore equity courts have broad power to provide 
relief and are obligated to do so. The test of the propriety 
of measures adopted by such courts is whether the required 
remedial action reasonably tends to dissipate the effects 
of the condemned actions and to prevent their continuance. 
Louisiana v. United States, 380 U.S. 145 (1965). An example 
of the application of this equitable principle is in the 
antitrust area, where it has been held to require the com­
plete dissolution of large national business enterprises 
which had been created by illegal monopolization, when 
there was no other way to counteract the effects of such 
illegal monopolization. United States v. Standard Oil Co., 
221 U.S. 1 (1910); Schine Chain Theatres v. United States, 
334 U.S. 110 (1948). Similarly, it has been held to require 
that federal courts supervise the redrawing of state legis­
lative districts when there is no other way to counteract 
the effects of population disparities in existing state legis­
lative districts. Reynolds v. Sims, 377 U.S. 533 (1964).



28

As indicated above, decisions of the Courts of Appeals 
for the Fifth, Eighth, and Tenth Circuits have held that 
this equitable doctrine, as applied to the problem of remedy 
for the unconstitutional creation and operation of a segre­
gated public school system, requires a school board to 
undertake affirmative action purposed to disestablish segre­
gation completely, and that the standard for determining 
the completion of desegregation is that the formerly Negro 
schools must cease being identifiable as Negro schools. 
The creation and operation of separate schools for Negroes 
was the condemned action, and the test of the propriety 
of remedial action to be required by a court is thus whether 
it will disestablish the existence of the Negro schools, i.e. 
integrate Negro students.

This Court suggested in the second Brown decision the 
scope of school system policies which would have to be 
changed in order to disestablish segregation, when it said 
that “ to effectuate this interest may call for elimination of 
a variety of obstacles,” and directed the district courts 
supervising the re-organization of dual school systems to 
“consider problems related to administration, arising from 
the physical condition of the school plant, the school trans­
portation system, personnel, revision of school districts, and 
attendance areas into compact units to achieve a system 
of determining admission to the public schools on a non- 
racial basis, and revision of local laws and regulations 
which may be necessary in solving the foregoing problems.” 
349 U.S. at 300-301.

Since this Court’s announcement of the second Brown 
decision in 1955, the lower federal courts have considered 
and ordered a variety of specific remedies which constitute 
affirmative actions and policies purposed to disestablish



29

segregation.12 See, e.g., United, States v. Jefferson County, 
Board of Education, supra; Kelley v. Altheimer, supra; 
Dowell v. School Board of Oklahoma City, supra; Carr 
v. Montgomery County Board of Education (Ala.), 253 
F. Supp. 306 (M.D. Ala. 1966); Moses v. Washington 
Parish School Board (La.), E.D. La., Civil No. 15973, 
October 19, 1967; Coppedge v. Franklin County Board of 
Education (N. Car.), 273 F. Supp. 289 (E.D.N.C. 1967) 
appeal pending; Corbin v. County School Board of Loudoun 
County (Va.), E.D. Va., Civil No. 2737, August 27, 1967; 
Braxton v. Board of Public Instruction of Duval County 
(Fla.), M.D. Fla., Civil No. 4598, January 24, 1967.

With regard to the “ revision of school districts and at­
tendance areas,” ordered by Brown II  the Court of Ap­
peals for the Fifth Circuit held in Jefferson County, supra:

I f  school officials in any district should find that their 
district still has segregated faculties and schools or 
only token integration, their affirmative duty to take 
corrective action requires them to try an alternative 
to a freedom of choice plan, such as a geographic at­
tendance plan, a combination of the two, the Princeton 
plan, or some other acceptable substitute, perhaps 
aided by an educational park. 372 F.2d at 895-896.

The Court thus made it clear that the school board’s as­
signment transfer, building utilization, new construction, 
and other policies must be specifically designed to integrate 
the system and eliminate identifiable Negro schools.

12 A survey of various types of remedies for the disestablishment of 
segregation is contained in the Report of the United States Commission 
on Civil Rights, “Racial Isolation in the Public Schools,”  (1967), Yol. I, 
pp. 140-183. This survey was commended to the school board and the 
district court by the Court of Appeals for the Eighth Circuit in Kemp v. 
Beasley II, No. 19,017, January 9, 1968, slip opinion, p. 9.



30

The Court of Appeals for the Eighth Circuit adopted a 
similar provisions in its decree in Kelley v. Altheimer, 
supra.

II.
The Desegregation Plan Approved by the Lower 

Courts Is Inadequate in That Petitioners Demonstrated 
That the Zoning and Transfer Arrangements Were Not 
Designed to Abolish the Dual System.

The school desegregation plan proposed by the Jackson, 
Tennessee board, including particularly the junior high 
school zoning arrangements and the transfer plan, fail to 
meet a minimum standard of adequacy under Brown v. 
Board of Education, 349 U.S. 294. The Jackson plan 
should not have been approved because there was no 
reasonable likelihood that the plan could effectively abol­
ish the dual system of schools.

Petitioners’ evidence showed without dispute that the 
junior high school zones proposed for the system were 
drawn so as to preserve racially segregated junior high 
schools to a large degree. They proposed a plan which 
would have desegregated all three junior high schools. 
There was no evidence which contradicted or impaired the 
value of plaintiffs’ exhibit No. 20 (the same map as Ex­
hibit V within the booklet marked overall Exhibit No. 12). 
This map depicts all of the Negro and white pupils of 
junior high school age in the city by race (Negroes in blue, 
whites in red dots) and shows how they are distributed 
in the city. The overlay containing the junior high school 
zone lines shows plainly how a strangely shaped zone for 
the all-Negro Merry school has been designed by the school 
authorities to include most of the Negroes in the city and 
exclude most of the whites. The racial effect of the junior 
high school zones is readily apparent from an examina­
tion of Plaintiffs’ Exhibit 20.



31

At the same time the school board proposed the junior 
high school zones it took steps to enlarge the all-Negro 
Merry Junior High School. This enlargement was plainly 
designed to accommodate all of the Negroes in the city 
at Merry, since Jackson Jr. High School had capacity for 
better than 200 more students than were enrolled there, 
and there was also excess capacity at Tigrett Junior High. 
The racial purpose of this construction is further shown by 
the fact that the board’s projections indicated no expected 
large increase in the number of junior high school students 
in the next four years.

The location of the three junior high schools (all of 
which were opened in the years after Brown on a segre­
gated basis), the enlargement of Merry Junior High to 
accommodate continued segregation, and the planning* of 
school zones separating white and Negro populations, all 
make an unrebutted showing of school building and school 
zone planning to perpetuate segregation.

The board’s free transfer device operates to permit an 
even greater degree of segregation than could be accom­
plished by the school zones. Plaintiffs’ Exhibit 19 (the 
same maps as Exhibit VI within the booklet Exhibit 12) 
demonstrates how the use of the combination of gerry­
mandered zoning and an open transfer plan at the junior 
high level permits a high degree of segregation. The 
exhibit indicates on map overlays the location of the resi­
dences of pupils attending the three junior high schools. 
(Note that the exhibits were prepared based on data in 
December 1964 when the Junior High Schools were still 
segregated by compulsion. The respondents arguments 
that these exhibits are somehow based on an effort to prove 
“ de facto”  segregation are thus entirely specious.) Exhibit 
19 shows how relatively few children had to be transferred 
out of their zones to maintain a high degree of racial



32

separation. As we have discussed above, all of the ex­
perience in Jackson, at the time this plan was proposed 
showed that white pupils would transfer out of the all 
Negro schools if free transfers were permitted, thus leav­
ing the all-Negro school intact as a segregated school.

The district court found that there was gerrymandering 
with respect to the zone lines of several elementary schools 
proposed by the respondent board. The court ordered that 
these zones be modified because of this apparent gerry­
mandering. G-iven this finding that the respondent board 
had once engaged in preparing school zone lines to per­
petuate segregation, it was incumbent upon the district 
court to scrutinize the newly proposed junior high school 
zones all the more carefully. We submit that the trial 
judge, having once found that the board was guilty of 
gerrymandering with respect to certain proposed zones, 
erred in failing to consider the irregularly shaped zones 
proposed by the board for junior high schools to be greatly 
suspect. It is submitted that the evidence plainly showed 
the manipulation of school location, construction, and 
zoning policies to maintain a high degree of segregation.13 
This was sufficient to require disapproval of the board’s 
proposed plan and for the trial court to have ordered the 
adoption of the proposed feeder plan suggested by plain­
tiffs’ experts as a method of actually desegregating all 
three junior high schools within the framework of the 
existing building locations, and grade structures, and build-

13 The availability o f a transfer option, however “ free” , does not 
justify the continued practice of school assignments based on racially 
gerrymandered zone lines. See Wheeler v. Durham City Board of Ed­
ucation, 346 F.2d 768 (4th Cir. 1965) (Students assigned by racially 
gerrymandered zones, then granted right to transfer out. Held: “ Chan­
neling pupils into schools by a method involving discriminatory practices 
and then requiring them, or even permitting them, to extricate them­
selves from situations thus illegally created, will not be approved.” 346 
f\2d at 772).



33

mg capacities. I f  this feeder proposal was not adopted, 
at the least the court should have required some alternative 
method of assignment to be proposed by the board which 
was equally as likely as the feeder method to actually 
disestablish the dual system of junior high schools.

We urge that the evidence on this record is fully sufficient 
to justify this Court in ruling that the plan approved below 
was plainly inadequate under Brown. However, assuming 
arguendo that the record is not sufficient to support a ruling 
rejecting the plan as completely inadequate then the cause 
should be returned to the District Court for reappraisal 
in view of the proper standards for review of desegrega­
tion plans as discussed in part I of the argument, supra. 
The trial court’s view of the evidence, the alternative pro­
posa ls made by petitioners’ experts, and the entire gerry­
mandering and transfer plan issues was influenced by the 
court’s too restricted view of the constitutional require­
ment of desegregation.



34

CONCLUSION

It is respectfully submitted that the judgment of the 
court below should be reversed.

Respectfully submitted,

J ack Greenberg
J ames M. Nabrit, III
M ichael Meltsner
M ichael J. H enry

10 Columbus Circle
New York, New York 10019

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

MeClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee 37201

J. E mmett B allard
116 West Lafayette Street 
Jackson, Tennessee

Attorneys for Petitioners

Gerald A . S mith  
F ranklin E. W hite

Of Counsel



MEitEN PRESS INC. —  N. Y. C « s» ^ s> 2 1 9