Dillard v. City of Charlottesville, VA School Board Appellants' Brief

    Initio States (£mvt of Kppmlz
F or the F ourth C ircuit 

No. 8638

I s  the

D oris D illard, et al.,

-v.
Appellants,

T he S chool B oard of the City of 
Charlottesville, V a ., et al.,

Appellees.

appeal from the  united states district court

FOR THE WESTERN DISTRICT OF VIRGINIA 
CHARLOTTESVILLE DIVISION

APPELLANTS’ BRIEF

S. W. T ucker 
H enry L. M arsh , I TT

Southern Aid Building 
214 East Clay Street 
Richmond, Virginia

O tto L. T ucker

901 Princess Street 
Alexandria, Virginia

J ack Greenberg 
J ames M. N abrit, I I I  

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



I N D E X

PAGE

Statement of the Case......................................................  1

Question Involved ............................................................  4

Statement of the Facts ....................................................  4

A rg u m en t  ............................................................................................. 7

The denial of transfer privileges to Negro pupils 
on the same terms that transfers are permitted 
white pupils living in the same school area violates
the Fourteenth Amendment .....................................  7

C onclusion  ........................................................................................ 16

T able op C ases

Barrows v. Jackson, 346 U. S. 249 (1953) ..... ................. 13
Bolling v. Sharpe, 347 U. S. 497, 74 S. Ct. 693, 98 L. ed.

884 (1954) .......................................................................  12
Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) .............. 11,12

Cooper v. Aaron, 358 U. S. 1 ......................................... 13

Dodson v. School Board of the City of Charlottesville,
289 F. 2d 439 (4th Cir. April 1961) .................... 1, 4, 8,15

Goss v. Board of Education of the City of Knoxville, 
Tenn., 6th Cir., No. 14, 425, April 3, 1962 .............. 13,14

Hamm v. County School Board of Arlington County,
264 F. 2d 945 (4th Cir. 1959) 11



IX

PAGE

Hill v. School Board of City of Norfolk, 282 F. 2d 473
(4th Cir. 1960) ................................................................ 11

Hirabayashi v. United States, 320 U. S. 81, 63 S. Ct. 
1375, 87 L. ed. 1774 (1943) ...........................................  12

Jones v. School Board of City of Alexandria, 278 F. 2d 
72 (4th Cir. 1960) ....................................................... 10,11

Kelley v. Board of Education of the City of Nashville,
270 F. 2d 209 (6th Cir. 1959), cert. den. 361 U. S. 924,
80 S. Ct. 293, 4 L. ed. 2d 240 ..................................... 13,14

Korematsu v. United States, 323 U. S. 214, 65 S. Ct.
193, 89 L. ed. 194 (1944) .............................................  12

Maxwell v. County Board of Education of Davidson
County, Tenn., No. 14, 607, April 4, 1962 ..................  14

McCoy v. Greensboro City Board of Education, 283 
F. 2d 667 (4th Cir. 1960), reversing 179 F. Supp.
745 (M. D. N. C. 1960) ................................................  13

School Board of City of Charlottesville v. Allen, 240
F. 2d 59 (4th Cir. 1956) .................... ..........................  11

Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. ed.
1161 ...........................................................................9,10,13

Taylor v. Board of Education of the City of New 
Rochelle, 191 F. Supp. 181; 195 F. Supp. 231 
(S. D. N. Y. 1961), appeal dismissed, 288 F. 2d 600 
(2d Cir. 1961), affirmed, 294 F. 2d 36 (2d Cir. 1961), 
cert, denied 7 L. ed. 2d 339 (1961) .............................  12



In the

Intteii §!alr0 (Emtrt at Appeals
F ob the F ourth Circuit

No. 8638

D oris D illard, et al.,

-v -
Appellants,

T he S chool B oard of the City of 
Charlottesville, Y a ., et al.,

Appellees.

appeal from the  united states district court

FOB THE WESTERN DISTRICT OF VIRGINIA 
CHARLOTTESVILLE DIVISION

APPELLANTS’ BRIEF

Statement of the Case

This appeal involves racial discrimination in the public 
schools of the City of Charlottesville, Virginia. This case 
has been before this Court on several previous occasions 
and this Court’s opinion in Dodson v. School Board of the 
City of Charlottesville, 289 F. 2d 439 (4th Cir., April 1961), 
describes the history of the litigation until that time.

The present appeal by 17 Negro pupils is from an order 
entered in the District Court on December 18, 1961 (59a), 
which resulted from further proceedings in the trial court 
following this Court’s above-mentioned opinion of April 14, 
1961.



2

On August 11,1961, these 17 pupils (4 were already plain­
tiffs and 13 were intervenors) filed a motion seeking further 
injunctive relief to require their admission in two white 
elementary schools in the City of Charlottesville (16a).1 
On August 31, 1961, the trial court permitted the requested 
intervention, denied a motion by the School Board to dis­
miss the motion for further relief, and calendared the mo­
tion for hearing.

On October 23-24, 1961, the court received oral and 
documentary evidence offered by the parties. At the con­
clusion of the hearing, the trial judge indicated from the 
bench his view that the Board’s action with respect to all 
of the plaintiffs was racially discriminatory and should be 
enjoined (40a-46a). However, the Court subsequently in­
dicated to the parties that it had reconsidered its pre­
viously expressed ruling with respect to the elementary 
school children. On December 18, 1961, the Court filed 
its opinion (48a), and entered an order denying the in­
junctive relief requested by the elementary school pupils 
and dismissing their case (60a).

In the opinion below, the trial court ruled that the 
School Board’s practice of requiring Negro elementary 
pupils living within the attendance area of the all-Negro 
Jefferson school to attend that school, while permitting 
white pupils in that area to transfer to other schools, was 
not in violation of the Fourteenth Amendment rights of 
the Negro pupils. The court said (52a):

1 The motion for further relief also involved the request of a 
group of Negro high school students for admission to the pre­
dominantly white high school. As the high school pupils obtained 
the relief requested in the court below, discussion of the issues 
with respect to them is omitted in this brief. The School Board 
has cross-appealed from the judgment below with respect to the 
high school pupils. Plaintiffs’ position on the issues in the cross 
appeal will be presented in a separate brief.



3

It is obvious that this procedure falls far short of 
any complete or enforced integration of the school 
system. In fact it contemplates that there should be 
no compulsory integration. Nevertheless this court 
feels that it is permissible and is not discriminatory. 
The charges of discrimination are centered on the 
situation in Jefferson district where the white children 
resident there are permitted to transfer to schools in 
other districts, whereas Negro children resident in 
Jefferson are not allowed to transfer to other districts. 
But a similar condition, in converse, obtains in the 
other five districts where resident Negro children are 
permitted to transfer to Jefferson while white children 
are restricted to the district where they reside. At­
tention centers on Jefferson district because of the 
accident of residence and school location. It is in 
Jefferson that the large majority of the Negro school 
population lives and it is there that is located the 
school heretofore designated for Negro children. In 
insisting that Negroes resident in Jefferson district 
attend Jefferson school the authorities are merely fol­
lowing the principle of requiring pupils to attend the 
school within their area of residence. They apply the 
same restrictions upon white children in the other 
areas. And any departure from this policy in the 
cases of white children living in Jefferson and Negroes 
living outside of Jefferson is based on the desire to 
avoid compelling children of either race to attend 
school with members of the opposite race if they wish 
not to do so.

On January 17, 1962 the Negro pupils filed a Notice of 
Appeal from the order of December 18 (62a). On February 
14, 1962, the trial court entered an order extending the time 
within which the appeal might be docketed in this Court to



4

April 17, 1962. The appeal was duly docketed on April 13, 
1962.

Question Involved

May the School Board deny Negro children’s requests to 
transfer from the racially segregated all-Negro school 
serving their area of residence when it encourages and 
permits all white children living in that area to attend 
public school in other attendance areas?

Statement of the Facts

At the end of the 1960-61 school year the 17 plaintiffs, 
Negro school children attending Jefferson Elementary 
School in the City of Charlottesville, made timely applica­
tions under procedures established by the School Super­
intendent for transfers to attend two “white” elementary 
schools. Two applied to enter Johnson Elementary School, 
which is and has been attended only by white pupils, and 
15 applied to Venable Elementary School, a predominantly 
white school with an enrollment of 510 pupils (47a), in­
cluding 20 Negroes (33a). Each of the 17 Negro pupils in 
this case resides in the attendance area of Jefferson school 
which is and has been attended only by Negro pupils.2

2 As described in this Court’s opinion in Dodson v. School Board 
of the City of Charlottesville, 289 F. 2d 439, 441, there are six 
elementary schools in the City of Charlottesville. They are Jeffer­
son (all-Negro), Venable (20 Negroes and 490 white pupils), Burn- 
ley-Moran (all-white), Clark (all-white), and McGuffey (all- 
white). Each of the elementary schools serves a geographic at­
tendance area assigned to it. A map depicting these areas was 
adopted by the desegregation plan filed on February 18, 1959. 
Generally speaking, Jefferson school is located in the center of 
the City and the attendance areas of the other five schools surround 
Jefferson. (See map in separate envelope in Record at pp. 14-17.) 
The enrollment and capacity figures for the six elementary schools 
are indicated in the answer to Interrogatory No. 3 (47a).



5

The Superintendent of Schools denied the plaintiffs’ re­
quested transfers on the ground that they lived within the 
Jefferson area3 (32a).

At the end of the 1960-61 school term, each elementary 
school pupil in the City was notified of his assignment for 
the forthcoming school year. This notice was stamped on 
the pupil’s report card with a statement that application 
for different schools might be made by notifying the Super­
intendent in writing before June 20, 1961. There are 149 
white elementary pupils living within the Jefferson area 
(28a). The Superintendent sent letters to the parents of 
all of these white pupils indicating that they lived in the 
Jefferson district and stating that if they wished to do so 
they might make application for assignment elsewhere 
(29a). The letter also recited the Superintendent’s “un­
derstanding” that the pupils were already attending the 
schools of their preference and his intention to reassign 
the pupils to those schools for the 1960-61 session if this 
was requested.4 All of the white pupils living in the Jeffer­

3 One Negro pupil, not a party to this ease, living in the Jeffer­
son district was permitted to transfer to Venable. Superintendent 
Ellis indicated that this was because the pupil had exceptional 
academic ability. The trial court regarded this as action “taken 
to afford a denial of unfair discrimination against Negroes” (33a; 
37a; 53a-54a).

4 During the trial, defendants indicated that a specimen of this 
letter would be furnished to the court at a later date (39a). This 
was done at the time briefs were submitted to the trial court; 
however, this letter was not marked as an exhibit. The text of 
the form letter which was filed with the court below along with 
an affidavit by Superintendent Ellis follows:

“ Charlottesville Public Schools 
Charlottesville, Virginia

“Dear
May 29, 1961

Your child, 
attending ___

------------ , has been
Elementary School



6

son district requested assignment to all-white or predomi­
nantly white schools, and all were granted assignments to 
schools other than Jefferson by the Superintendent on the 
basis of a policy of not requiring any pupil to attend an 
integrated school or a school in which his race is in the 
minority (40a; 51a). Similar letters were sent to Negroes 
residing in the areas of the 5 all-white or predominantly 
white schools, and upon request they were transferred to 
Jefferson School (30a).

Four of the white pupils living within the Jefferson zone 
entered the school system for the first time in September 
1961, and were permitted to enroll in “white” schools with­
out any requirement that they or their parents make 
physical appearance at Jefferson school for initial reg­
istration or for any other purpose (30a-31a).

•which. I understand to be the elementary school of your 
preference and for that reason I intend to reassign him/her 
there for the 1961-62 session. However, since you live in the
geographical zone served by ______________________________
Elementary School, your child can attend another elementary 
school only if you specifically request it. Therefore, if you 
have a request for transfer, please indicate this in the space 
provided and return this letter to me with your signature.

Fendall R. Ellis 
Superintendent

I request that my child be assigned t o _____
School for the 1961-62 school session.

Parent

Date”



7

ARGUMENT

The denial of transfer privileges to Negro pupils on 
the same terms that transfers are permitted white pupils 
living in  the same school area violates the Fourteenth 
Amendment.

There is no dispute as to the facts material to this appeal. 
The Court below found on uncontradicted evidence that 
the 17 Negro pupils involved in this appeal were denied 
transfers out of the Jefferson Elementary School on the 
asserted ground that they lived within the Jefferson School 
attendance district, and that all of the white pupils living 
within the Jefferson District were permitted to attend 
other schools. Indeed, it is apparent that the school author­
ities solicited and encouraged the white pupils’ “ transfer” 
applications. The Superintendent’s letter (see Note 4 
above) indicated his intention to grant “ transfers” to white 
pupils if they sought them. The white pupils were per­
mitted to “ transfer” under the school authorities’ policy 
that no pupil should be compelled to attend “a school occu­
pied entirely or predominantly by pupils of the opposite 
race” (51a).

Thus, it is clear that if the 17 Negro appellants had been 
white pupils they would have been permitted, and indeed 
encouraged, to transfer out of the Jefferson School. How­
ever, since they are Negro pupils residing in the all-Negro 
Jefferson School district, their transfers were denied. 
These Negro pupils were denied a valued privilege (the 
right to choose to attend a school outside their zone of 
residence), on a racially discriminatory basis.

The white pupils residing in the Jefferson District were 
permitted to attend other schools solely because they were 
white pupils residing in a predominantly Negro district.



8

It is submitted that this is a patent racial discrimination 
against the 17 Negro pupils who sought transfer out of the 
Jefferson area, and that the school board’s action and policy 
denies them the equal protection of the laws.

In its last opinion in this case this Court held that the 
practice of initially assigning pupils to the school in the 
district in which they live and allowing transfers if the 
parents so request and the superintendent approved “ . . . 
is a perfectly acceptable method of making school assign­
ments as long as the granting of transfers is not done on a 
racially discriminatory basis or to continue indefinitely an 
unlawful segregated school system.” Dodson v. School 
Board of the City of Charlottesville, 289 F. 2d 439, 442 
(4th Cir. 1961).

In response to that decision, the defendants have aban­
doned their prior practice of initially assigning white pupils 
residing in the “Negro” school area to “white” schools and 
initially assigning Negro pupils residing in the “white” 
school areas to “Negro” schools. Instead, they now notify 
the parents of children in a racial minority in any area 
that the children are technically assigned to the school serv­
ing their residential area, but that transfers to accord with 
the pre-existing pattern will be freely granted if requested 
on the prepared form at the foot of the notification. Thus, 
the 149 white pupils residing in the district of the “all- 
Negro” Jefferson School enrolled in or continued in atten­
dance at “white” schools simply as a result of the signatures 
of their parents on a form sent them by the Superintendent 
of Schools. Negro pupils in the Jefferson district are 
required to remain in Jefferson.

It is submitted that this method of making school assign­
ments is racially discriminatory and will also “ continue in­
definitely an unlawfully segregated school system,” not­
withstanding this Court’s admonition against such a policy.



9

The policy is racially discriminatory in that it grants trans­
fers to white pupils while denying transfers to Negro pupils 
similarly situated. The policy will perpetuate the unlawful 
segregated system (except for token compliance with the 
Constitution), in that transfer applications which operate 
to promote segregation are granted, while, transfer applica­
tions which would curtail segregation (such as those of the 
plaintiffs) are denied. The board’s policy of freely per­
mitting pupils to transfer out of school districts in which 
they are in a racial minority, while rigidly enforcing against 
pupils in a racial majority a requirement that they attend 
the schools in their zones, necessarily operate to continue 
racial segregation in the public schools.

The opinion below held that the defendants’ procedure 
was permissible and not discriminatory, stating that al­
though Negroes in the Jefferson district were not allowed 
transfers while white children resident there were permitted 
transfers, nevertheless there was a similar condition in 
the other five districts where Negro children are permitted 
to transfer to Jefferson while resident white children are 
not.

It is submitted that these correlative discriminations 
against whites and Negroes do not “balance out” to result 
in a nondiscriminatory non-racial system. This symmetri­
cal inequality of treatment on the basis of race does not 
conform to the constitutional requirement that every per­
son be granted equal rights and privileges without regard 
to race or color. The defendants’ theory that the treat­
ment of the Negroes in the Jefferson district is justified 
because there is a similar treatment of white children in 
other districts, ignores the personal nature of the Four­
teenth Amendment rights.

The Supreme Court reviewed a similar type of argument 
in Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. ed.



10

1161 (1948), where it was urged that judicial enforcement 
of racial restrictive covenants against a Negro was valid 
since the state courts stood ready to enforce similar cove­
nants against white persons. After observing that it knew 
of no case of such a covenant against white persons,5 the 
Court said at 334 U. S. 22:

“But there are more fundamental considerations. The 
rights created by the first section of the Fourteenth 
Amendment are, by its terms, guaranteed to the in­
dividual. The rights established are personal rights 
[Footnote citing McCabe v. Atchison, T. & S. F. R. Co., 
235 US 151, 161, 162, 59 L. ed. 169, 174, 175, 35 S. Ct. 
69 (1914); Missouri ex rel. Gaines v. Canada, 305 US 
337, 83 L. ed. 208, 59 S. Ct. 232 (1938); Oyama v. Cali­
fornia, 332 US 633, ante, 249, 68 S. Ct. 269 (1948)]. 
It is, therefore, no answer to these petitioners to say 
that the courts may also be induced to deny white 
persons rights of ownership and occupancy on grounds 
of race or color. Equal protection of the laws is not 
achieved through indiscriminate imposition of inequal­
ities.”  (Emphasis supplied.)

The School Board’s argument equating the treatment 
of Negroes in the Jefferson district with the treatment of 
white pupils in other districts, rather than with the treat­
ment of white pupils in the Jefferson district, is also

5 Here, as in Shelley, the claimed parallel of state action ad­
versely affecting white persons is unlikely ever to occur in any 
concrete context. The history of school desegregation litigation 
demonstrates that in Virginia few white persons affirmatively seek 
desegregation, and that the denial to white persons of the “privi­
lege” of transferring to an all-Negro school is unlikely to be re­
garded as a serious deprivation. As this Court observed in Jones 
v. School Board of City of Alexandria, 278 F. 2d 72, 77 (4th Cir. 
1960), “ . . .  by reason of the existing segregation pattern, it will 
be Negro children, primarily, who seek transfers.”



11

inconsistent with this Court’s analysis in its prior opin­
ion. In that opinion this Court, discussing initial as­
signments, compared the treatment of Negroes living in 
the Jefferson district with whites living in the Jefferson 
district, and Negroes in other districts with the whites in 
those other districts:

Negroes living in the Jefferson district must attend 
the school of that district whereas whites are initially 
assigned elsewhere. Negroes living in one of the other 
five districts are automatically assigned to Jefferson 
and must apply for transfer to the schools serving 
their residence and zones, but whites in one of these 
zones automatically are assigned to the schools in their 
respective zones. (289 F. 2d at 443.)

It is submitted that the principles which prompted this 
Court’s condemnation of the discriminatory initial assign­
ment practices are equally applicable to the racially dis­
criminatory transfer procedures involved here. In Boson 
v. Bivvy, 285 F. 2d 43, 47-50 (5th Cir. 1960), the Fifth 
Circuit disapproved a provision of a school board’s desegre­
gation plan contemplating an arrangement exactly like 
that practiced in Charlottesville, holding that “classifica­
tion according to race for purposes of transfer is hardly 
less unconstitutional than such classification for purposes 
of original assignment to a public school” (at p. 48). This 
Court has repeatedly condemned the use of different trans­
fer standards for Negroes and whites. Hamm v. County 
School Board of Arlington County, 264 F. 2d 945 (4th Cir. 
1959); Jones v. School Board of City of Alexandria, 278 
F. 2d 72 (4th Cir. 1960); Hill v. School Board of City of 
Norfolk, 282 F. 2d 473 (4th Cir. 1960); School Bd. of City 
of Charlottesville v. Allen, 240 F. 2d 59 (4th Cir. 1956).

All racial classifications by the states must be viewed 
with grave suspicion for they are presumptively arbitrary.



12

Korematsu v. United States, 323 U. S. 214, 216, 65 S. Ct. 
193, 89 L. ed. 194 (1944); Hirabayashi v. United States, 
320 U. S. 81, 100, 63 S. Ct. 1375, 87 L. ed. 1774 (1943); 
Boson v. Rippy, supra. The Supreme Court held in Bol­
ling v. Sharpe, 347 U. S. 497, 74 S. Ct. 693, 98 L. ed. 884 
(1954), that racial classifications have no proper place in 
public education, stating that “ segregation is not reason­
ably related to any proper governmental objective.”

The holding of the Second Circuit in the New Rochelle, 
New York school segregation case strongly supports the 
view that defendants’ present policy is unconstitutional. 
Taylor v. Board of Education of the City of New Rochelle, 
191 F. Supp. 181, 185; 195 F. Supp. 231 (S. D. N. Y. 1961), 
appeal dismissed, 288 F. 2d 600 (2d Cir. 1961), affirmed, 
294 F. 2d 36 (2d Cir. 1961), cert, denied 7 L. ed. 2d 339 
(1961). Indeed, in that case the Court went beyond con­
demning a practice similar to that here. It held that where 
school authorities had once permitted white children to 
transfer out of a Negro school but had abandoned this 
practice in 1949, the school authorities were nevertheless 
still bound to take action to relieve the segregated situa­
tion which had been created by this practice and by the 
gerrymandering of school zone lines. The Second Circuit 
approved an order allowing Negro pupils in the predomi­
nantly Negro school to transfer to other schools, even 
though the School Board had in 1949 stopped permitting 
white children to transfer out of that school on the basis 
of race. A fortiori a present use of such a practice is 
unlawful.

The school authorities provide the standards for pupil 
assignment. The fact that some parents want segregation 
and gain it through the school board’s “ option” system, 
does not relieve the Board of its duty to eliminate the 
segregated system that was created by state law. Cf.



13

McCoy v. Greensboro City Board of Education, 283 F. 2d 
667 (4th Cir. 1960), reversing 179 F. Snpp. 745 (M. D. 
N. C. 1960), where through an “ optional transfer” device 
a school board removed all white students from a school 
and converted it to a Negro school, and it was held that 
the complaint was improperly dismissed, and that the 
Negro pupils were entitled to attend a desegregated school 
without further pursuing administrative remedies for 
transfer to the school the white pupils in their area at­
tended. The proposition that no citizen has a “ right to 
demand action by the State which results in the denial of 
equal protection of the laws to other individuals” was 
applied in Shelley v. Kraemer, 334 U. S. 1, 22 (1948) and 
Barrows v. Jackson, 346 U. S. 249, 260 (1953). If school 
authorities may not assign pupils on the basis of race to 
effect segregation at the command of a state legislative 
enactment, it is, plaintiffs submit, unthinkable that they 
may do so in obedience to the prejudices of individual 
parents or pupils by operating under state created racial 
classifications. The evidence in this case indicates that the 
defendants’ transfer procedure actually operates to con­
tinue the Jefferson school as an all-Negro school. This 
system plainly conflicts with the rule expressed in Cooper 
v. Aaron, 358 U. S. 1, 7, that state authorities are “ duty 
bound to devote every effort toward initiating desegrega­
tion.”

As the Fifth Circuit mentioned in its opinion in the Boson 
case, supra, the Sixth Circuit took a contrary view in ap­
proving a provision in a desegregation plan in Kelley v. 
Board of Education of the City of Nashville, 270 F. 2d 
209, 228 (6th Cir. 1959), cert. den. 361 U. S. 924, 80 S. Ct. 
293, 4 L. ed. 2d 240 (see the dissenting memorandum of 
the Chief Justice and Justices Douglas and Brennan).6

6 Recently the Sixth Circuit has adhered to the views it ex­
pressed in the Kelley case. Goss v. Board of Education of the City



14

However, it may be noted that the Sixth Circuit in Kelley 
addressed its discussion entirely to the issue of whether 
or not it was permissible to allow children in a minority in 
a given school area to transfer out of that area on the 
basis of their race. The court did not discuss the issue 
posed in the present record, i.e., whether such transfer 
privilege if granted, must be accorded to pupils in a racial 
majority in a given school zone as well.

In the more recent decision in Goss v. Board of Educa­
tion of the City of Knoxville (6th Cir. No. 14, 425, April 
3, 1962), the Sixth Circuit observed that the use and 
application of the transfer provision may become a viola­
tion of constitutional rights and the court admonished the 
board not to use the transfer provision as a means of 
perpetuating segregation.

Plaintiffs submit that the present situation demonstrates 
that to the extent that such a policy operates at all, it 
necessarily results in continued segregation. In the instant 
case the policy continues Jefferson school as an all-Negro 
school. In addition there is demonstrated discrimination 
against 17 identified Negro pupils, as against the abstract 
consideration of desegregation plans involved in the Sixth 
Circuit cases. In any event, plaintiffs submit that the view 
taken by the Fifth Circuit is more persuasive, is consonant 
with the applicable decisions of the Supreme Court, and 
that this court should follow the Boson doctrine rather than 
that of the Kelley case.

In the instant case neither the school board nor the trial 
court attempt to excuse the racially discriminatory trans-

of Knoxville, Tenn., 6th Cir., No. 14, 425, April 3, 1962, and 
Maxwell v. County Board of Education of Davidson County Tenn., 
No. 14, 607, April 4, 1962.



15

fer policy as a temporary or interim measure to be ef­
fective only during a period of transition. The school 
board argued and the court below held that it was non- 
diseriminatory. Cf. Dodson v. School Board of City of 
Charlottesville, supra.

The trial court’s opinion recited two alternatives to 
approval of the School Board’s policy (53a). The first was 
“ assignment of all pupils solely on the basis of residence 
with no transfers permitted, resulting in enforced inte­
gration of all schools” (53a). The second was “ to allow 
pupils of both races to attend any school they might choose 
anywhere in the City” (53a). The court rejected both 
alternatives stating that it did not believe the law required 
the first, and that the second would result in chaos in 
school attendance. It is submitted that the court omitted 
mention of a third choice (which is precisely what the 
plaintiffs urge) i.e., to permit any child, without regard to 
race, to transfer to any school to which transfers from his 
zone are being allowed.

In explaining his ruling from the bench, the trial judge 
said (46a):

Let’s not have a misunderstanding, Mr. Battle. I 
think the soundest principle is to proceed on the theory 
that the Negro and the white child must be treated 
exactly alike, in their rights. In other words, if a 
white child is allowed to transfer out of Jefferson 
District, while at the same time he’s not selected the 
district into which he shall transfer, but the Super­
intendent exercises control over that, the same should 
apply to a Negro child. He should be allowed to trans­
fer, but the Superintendent should also still be allowed 
reasonable control over the district to which he goes.



16

Upon subsequent reflection, the trial court changed this 
view. It is respectfully submitted that the trial court’s 
initial ruling was correct, and that the subsequent ruling 
was in error.

CONCLUSION

W herefore, it is respectfully submitted, that the judg­
ment of the Court below denying relief to the appellant 
Negro elementary school pupils and others similarly situ­
ated should be reversed.

S. W . T ucker 
H enry L. M arsh, III

Southern Aid Building 
214 East Clay Street 
Richmond, Virginia

Otto L. T ucker

901 Princess Street 
Alexandria, Virginia

J ack Greenberg 
J ames M. N abrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



S B