Turner v. Fouche Appellants' Reply Brief

    I n  the

Qlourt of MnxUh §>tatro
OcTOBEE Term, 1969 

No. 23

Calvin T urner, et al.,
Appellants,

-V.-

W. W. F ouche, et al.,
Appellees.

ON appeal from the united states district court 
FOR the southern DISTRICT OF GEORGIA

APPELLANTS’ REPLY BRIEF

J ack Greenberg 
Michael Meltsner 

10 Columbus Circle 
New York, New York

H oward Moore, J r.
P eter R indskopf

8591/4 Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants

Norman J . Chachkin 
Of Counsel



I N D E X

Tabi^  of Cases

PAGE

Anderson (and Hinton) v. Georgia, 390 U.S. 206
(1968) ............................................................................ 5

Avery v. Georgia, 345 U.S. 559 (1953) .........................  6
Avery v. Midland County Texas, 390 U.S. 474, 484 

(1968) ............................................................................ 10

Bell V. Southwell, 376 F.2d 659 (5th Cir. 1967) ........  8
Broadway v. Culpepper, —— F. S upp.-----  (No. 904

M.D. Ga. 1969) .................    6
Brown v. AUen, 344 U.S. 443 (1953) .............................  3

Carr v. Montgomery County Board of Education, 395
U.S. 225 (1969) ...........................................................  9

Cipriano v. City of Houma, 395 U.S. 701 (1969) ....10,11,12
Cobb V. Balkcom, 339 F.2d 95 (5th Cir. 1964) ..........  6
Cobb V. Georgia, 389 U.S. 12 (1967) .............................  5

Edwards v. South Carolina, 372 U.S. 229 (1963) ........  2

Gamble v. Grimes, XIA Race Eel. L. Rep. 2028 (N.D.
Ga. 1966) ......................................................................  6

Green v. School Board of New Kent County, 391 U.S.
430 (1968) ....................................................................  10

GrifSn v. School Board of Prince Edward County, 
Virginia, 377 U.S. 218 (1964) .....................................  10

Hague V. CIO, 307 U.S. 406 (1939) .............................  4

Jones V. Georgia, 389 U.S. 24 (1967) .........................  5



11

PAGE

Kramer v. Union Free School District No. 15, 395 U.S.
621 (1969) ..........................................................9,10,11,12

Louisiana v. United States, 380 U.S. 145, (1965) —.4, 6, 7,8

Moore v. Dutton, 396 F.2d 783 (5th Cir. 1968) ........  6

Powell V. McCormack, 395 U.S. 486 (1969) ................  10
Pullum V. Greene, 396 F.2d 251 (5th Cir. 1968) ........  6

Reece v. Georgia, 350 U.S. 85 (1956) ...........................  6

Schnell v. Davis, 336 U.S. 933, affirming 81 F. Supp.
872 (D.C. S.D., Ala.) ....................................................  4

Sims V . Georgia, 389 U.S. 404 (1967) .........................  5
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .... 4
Stokes V . Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) .... 9
Sullivan v. Georgia, 390 U.S. 410 (1968) ......................  5
Sullivan v. State, -----  Ga. ----- , 168 S.E.2d 133

(1969) ............................................................................  1,3

Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga. 1965) .... 9

United States v. L. Cohen Grocery Co., 255 LT.S. 81 .... 4
United States v. Mississippi, 380 U.S. 128 (1965) ....... 6

Vanleeward v. Rutledge, 369 F.2d 584 (5th Cir. 1966) 6

Whippier v. Balkcom, 342 F.2d 388 (5th Cir. 1965) 6
Whippier v. Dutton, 391 F.2d 425 (5th Cir. 1968) .... 6
Wliitus V. Balkcom, 333 F.2d 496 ( 5th Cir. 1964) ....... 6
Whitus (and Davis) v. Georgia, 385 U.S. 545 (1967) __ 6
Williams v. Georgia, 349 U.S. 375 (1955) ...................... 6
Williams v. Rhodes. 393 U.S. 23 (1968) ...................... 10



Ill

Table of Constitutional and 
S tatutoey P rovisions

PAGE

Ala. Code Tit. 30 §21 (1966) .......................................  3

Ga. Code Aim.—
§2-6801 .................................................................. 6,8,10
§2-3802 ......................................................................  9
§24-2501 ....................................................................  9
§32-902 ......................................................................  10
§32-902.1 ....................................................................  10
§59-106 .....................................................................1,2,3

Ga. Constitution, Art. VII, §V, Par. 1 .......................  10

North Carolina Gen. Stat. §9-3 (1967) ............................ 3

28 U.S.C. §1861 ................................................................. 7

28 U.S.C. §1865 ................................................................. 7

42 U.S.C. §1971 ................................................................. 5

Other A uthorities

Carter, Scottsboro (Louisiana State University Press 
(1969)) ..........................................................................  6

Franklin, Eeconstruction After the Civil War (Uni­
versity of Chi. (1961)) ................................................ 6

United States Code Congressional and Administrative 
News, 90th Congress, 2nd Sess....................................  7



I n’ the

ûprrm]? Olourt nf
October Term, 1969 

No. 23

Calvin T urner, et al., 

— V . —

W. W. F ouche, et al.,

Appellants,

Appellees.

ON APPEAL FROM T H E  U N ITE D  STATES DISTRICT COURT 

FOR T H E  SO U TH ER N  DISTRICT OP GEORGIA

APPELLANTS’ REPLY BRIEF

I.

In its Brief, the State of Georgia expresses the view that 
Ga. Code Ann. §59-106, which authorizes jury commis­
sioners to select for jury service only persons whom the 
commissioners believe are “intelligent and upright”, pro­
vides sufficiently precise guidance as to which “citizens of 
the County” are to be included and which excluded from 
the jury list. In support of this conclusion the state quotes 
a decision of the Supreme Court of Georgia (“An intelli­
gent person is one possessed of ordinary information and
reasoning facilities,” Sullivan v. S ta te ,-----  Ga. ----- , 168
S.E.2d 133 (1969)) and the chairman of the jury commis­
sion who testified that an “upright” citizen is one who 
enjoys a good reputation in the community (Brief p. 16).



It is also urged that the English language always contains 
room for varying interpretations, and that the Due Process 
and Equal Protection Clauses of the Fourteenth Amend­
ment contain language more indefinite than Gla. Code Ann. 
§59-106.

Appellants have no quarrel with the general notion that 
some uncertainty as to meaning is inevitable in the drafting 
of legislative enactments. It is quite another matter, how­
ever, to conclude that officials such as jury commissioners 
can non-arbitrarily distinguish between adults on the basis 
of whether they are “intelligent and upright”—statutory 
tests which are nowhere given content or objectively de­
fined. Assuming good faith on the part of the commis­
sioners—an assumption which this record refutes—neither 
the statute, the practice of the commissioners under it, 
nor decisions of the Georgia courts, adopt standards for 
exclusion or inclusion which do more than reiterate the 
open-ended, subjective, discretion conferred by the words, 
“intelligent and upright.” Cf. Edwards v. South Carolina, 
372 U.S. 229 (1963). The statute simply does not offer 
guidance to assist one determining whether any particular 
individual is qualified for jury service. Guidance to assist 
one determining whether particular individuals are quali­
fied for jury service is not given by replacing one set of 
vague and overbroad terms with another.^ 'WTiat, for ex­
ample, is one to make of the notion that a Georgia juror 
is “intelligent” if possessed of “ordinary information”

' Even the dictionary definition of “intelligence” reflects some of 
the confusion encountered by any definition which does not rely 
on an objective standard: “Psychologists still debate the question 
whether intelligence is a unitary characteristic of the individiial 
or a sum of his abilities to deal with various types of situation.” 
Webster's New International Dictionary (2d Ed.).

The word “upright” is defined by Webster’s as being “morally 
correct.” A standard more likely to reflect the prejudices of the 
person making the selection is difficult to imagine.



and “upright” if “honorable, honest and will do right as 
he sees it” ?  ̂ Sullivan v. State, supra at 137. The Georgia 
Supreme Court opinion in Sullivan v. State also states 
that “No particular degree of intelligence is required hy 
this statute. Idiots, morons, and insane persons are not 
intelligent and would not qualify.” There is no sugges­
tion, however, that §59-106 excludes only the classes of 
mentally disabled persons enumerated. And the statute 
betrays no such intent, although it would he an easy mat­
ter to write a statute which confined the discretion of 
the commissioners to excluding such classes of persons 
from service, see e.g.. North Carolina Gen. Stat. §9-3 
(1967); Ala. Code Tit. 30 §21 (1966). Perhaps, the failure 
of the Georgia Legislature to define those characteristics 
which amount to a disqualification might pass constitu­
tional muster if the commissioners themselves, or the 
Georgia courts, construed Ga. Code Ann. §59-106 in a more 
definite manner—as, for example, this Court construes the 
Fourteenth Amendment. But nothing of this sort has oc­
curred and Ga. Code Ann. §59-106 remains as vague and 
over-broad as when it was written. (See A. 36).

Another branch of the State’s argument is that a statute 
may not be invalidated because of a capacity for wrongful 
administration attributable to its vagueness or overbreadth.

2 The Georgia Supreme Court in Sullivan also relies on a passage 
in this Court’s opinion in Brown v. Allen, 344 U.S. 443, 474 (1953) 
to the effect that to satisfy federal constitutional requirements a 
jury sleection statute need only reflect “the cross-section of the 
population suitable in character and intelligence for that civic 
duty.” The court takes this to mean that a statute which uses the 
words “intelligent” and “upright” is thereby constitutional. In 
doing so it confuses the constitutionally acceptable goal of seeking 
jurors of intelligence and character (as stated in Brown v. Allen) 
with the means of reaching that goal which, to satisfy Fourteenth 
Amendment requirements, must contain a sufficiently definite test 
of eligibility not to invite capricious distinction between individuals 
or to serve as a mask for racial discrimination.



It is said that all statutes are capable of wrongful adminis­
tration, and, therefore, that the only remedy for the use of 
language such as “intelligent and upright” to exclude Ne­
groes in Georgia from jury service is to obtain injunctive 
relief in every case against particular jury commissioners 
who discriminate racially. We will not here repeat our dis­
cussion of the reasons why the language of Ga. Code Ann. 
§59-106 provides a particular and severe threat to non- 
racial selection of jurors in Georgia, or the reasons why a 
general injunction against racial selection is of minimal 
value as long as excessive discretion vested in the commis­
sioners provides an easy justification for what is actually 
racial exclusion. These matters are set forth in some detail 
in Appellants’ Brief, pp. 30-37. We point out, however, that 
the rule that a statute violates the Fourteenth Amendment 
when it confers standardless discretion upon public officials 
to make up the “law” in every case has been consistently 
applied by this Court, See South Carolina v. Katzenhach, 
383 U.S. 301, 313 (1966); Hague v. CIO, 307 U.S. 406 
(1939). Indeed, the State’s contention was rejected by the 
Court in Louisiana v. United States, 380 U.S. 145, 153 
(1965):

The cherished right of people in a country like ours to 
vote cannot be obliterated by the use of laws like this, 
which leave the voting fate of a citizen to the passing 
whim or impulse of an individual registrar. Many 
of our cases have pointed out the invalidity of laws 
so completely devoid of standards and restraints. 
See, e.g.. United States v. L. Cohen Grocery Co., 255 
U.S. 81, 65 L.ed. 516 41 S Ct 298, 14 ALE 1045. 
Squarely in point is Schnell v. Davis, 336 U.S. 933, 93 
L.ed 1093, 69 S Ct 749, affirming 81 P. Supp. 872 (D.C. 
S.D. Ala.), in which we affirmed a district court judg­
ment striking down as a violation of the Fourteenth and 
Fifteenth Amendments an Alabama constitutional pro­



vision restricting the right to vote in that State to per­
sons who could “understand and explain any article of 
the Constitution of the United States” to the satisfac­
tion of voting registrars. We likewise affirm here the 
District Court’s holding that the provisions of the 
Louisiana Constitution and statutes which require 
voters to satisfy registrars of their ability to “under­
stand and give a reasonable interpretation to any sec­
tion” of the Federal or Louisiana Constitution violate 
the Constitution. And we agree with the District Court 
that it specifically conflicts with the prohibitions 
against discrimination in voting because of race found 
both in the Fifteenth Amendment and 42 USC <§.1971 
(a) to subject citizens to such an arbitrary power as 
Louisiana has given its registrars under these laws.

As with voting registrars in Louisiana, use by the com­
missioners of indefinite eligibility tests to exclude Negroes 
from jury service is not merely an abstract possibility. 
Georgia jury commissioners in Taliaferro County and 
elsewhere have consistently misapplied their authority for 
the forbidden purpose of excluding Negroes.® Cobb v. 
Georgia, 389 U.S. 12 (1967) (per curiam) (Bibb County); 
Sullivan v. Georgia, 390 U.S. 410 (1968) (per curiam) 
(Lamar County); Anderson (and Hinton) v. Georgia, 390 
U.S. 206 (1968) (per curiam) (Crisp County); Jones v. 
Georgia, 389 U.S. 24 (1967) (per cnriam) (Bibb County); 
Sims V. Georgia, 389 U.S. 404 (1967) (per curiam) (Charl-

® Of course, use of the “intelligent and upright” qualification 
is not the only manner by which Georgia jury commissioners 
have discriminated against blacks in jury selection. Until recently, 
commissioners also employed racially separate tax books to dis­
criminate in selection. The point is that the “intelligent and up­
right” qualification provided a ready opportunity for discrimi­
nation which Georgia jury commissioners are inclined to take 
advantage of by custom and practice.



ton County); WMtus (and Davis) v. Georgia, 385 U.S. 
545 (1967) (Mitchell County); Reece v. Georgia, 350 U.S. 
85 (1956) (Cobb County); Williams v. Georgia, 349 U.S. 
375 (1955) (Fulton County); Avery v. Georgia, 345 U.S. 
559 (1953) (Pulton County); Vanleeward v. Rutledge, 
369 P.2d 584 (5th Cir. 1966) (Muscogee County); Whippier 
V. Dutton, 391 F.2d 425 (5th Cir. 1968) (Bibb County); Cohb 
V. Balkcom, 339 F.2d 95 (5th Cir. 1964) (Jasper County); 
Pullum V. Greene, 396 F.2d 251 (5th Cir. 1968) (Terrell 
County); Moore v. Dutton, 396 F.2d 783 (5th Cir. 1968) 
(per curiam) (Camden County); Whippier v. Balhcom, 342 
P.2d 388 (5th Cir. 1965) (Bibb County); Whitus v. Balkcom, 
333 F.2d 496 (5th Cir. 1964) (Mitchell County); Gamble v. 
Grimes, XIA Eace Eel. L. Eep. 2028, (N.D. Ga. 1966)
(Pulton County); Broadway v. Culpepper, -----  P. Supp.
-----  (No. 904, M.D. Ga. 1969) (Baker County).^

* The requirement that Georgia jurors be intelligent and up­
right apparently dates from the Georgia Constitution of 1868 
which authorized the General Assembly to “provide by law for 
the selection of upright and intelligent persons to serve as jurors.” 
One year after adoption of the Constitution of 1877 (which au­
thorized “the selection of the most experienced, intelligent and 
upright men to serve as grand jurors, and intelligent and upright 
men to serve as traverse jurors”.) Georgia adopted “An Act to 
carry into elfect Paragraph 2, Section 18, Article 6 of the Consti­
tution of 1877 so as to provide for the selection of the most ex­
perienced, intelligent and upright men to serve as grand jurors, 
and of intelligent and upright men to serve as traverse jurors 
and for the drawing of juries.” (Acts 1878-79, pp. 34-35)

It is of course significant that the intelligent and upright re­
quirement came into Georgia law at a time when southern states 
freely adopted vague and overbroad laws as “nothing more than 
a mask for excluding the names of an}̂  and all Negroes.” See 
Carter, Seottsboro (Louisiana State University Press (1969)) pp. 
196-97; Louisiana v. United States, 380 U.S. 145 (1965); United 
States V. Mississippi, 380 U.S. 128 (1965). Of the political situa­
tion in Georgia, in 1868, a distinguished historian has written 
“In September, 1868, the Georgia Legislature formally declared 
all Negro members ineligible to sit in that body . . .  No other 
former confederate state put on such a display of incorrigibility.” 
Franklin, J. II., Keconstruction After the Civil War (University 
of Chi. Press (1961)) pp. 131-133.



The general injunction against racial discrimination 
which the district court granted, and which appellees con­
tend is sufficient, cannot eliminate persistent discrimination 
on such a scale. As the Court recognized in Louisiana v. 
United States, 380 U.S. at 152, a vague and overbroad 
statute “practically places . . . [the commissioners] deci­
sion beyond the pale of judicial review.” Nor are proper 
jury selection standards difficult to ascertain and ad­
minister. See 1968 Jury Selection and Service Act, Public 
Law No. 90-273, 28 IJ.S.C. §§1861 et seq. The suggestion 
in the State’s Brief (p. 13) that 28 U.S.C. §1865 gives a 
federal judge similar power to a Georgia jury commis­
sioner is unpersuasive. Under the Jury Selection and 
Service Act, the requirement that one must “read, write 
and understand the English language with a degree of 
proficiency sufficient to fill out satisfactorily the juror 
qualification form”, 28 U.S.C. §1865 (b) (2), is a deter­
mination made on the objective basis of “information pro­
vided on the juror qualification form and other compe­
tent evidence” 28 U.S.C. §1865 (a).^ Appellees further con­
tention that somehow Georgia’s subjective eligibility stan­
dards are required by the Sixth and Seventh Amendment 
falls of its own weight. Appellants do not contend that a 
state cannot ensure that its jurors are qualified for the 
work at hand, but rather that the standard used to select 
eligible jurors must be sufficiently clear to provide for 
minimum regularity and accountability. The adoption of 
words such as “intelligent and upright”, as to which each 
person may have a different view, does not satisfy the Four­
teenth Amendment for it leaves a citizen’s eligibility to the

 ̂Appellees overlook that the Federal Jury Selection and Ser­
vice Act requires that each circuit adopt a plan of selection which 
will ensure objective random selection rather than the subjective 
character and intelligence judgments which were permitted by 
prior law. See United States Code Congressional and Adminis­
trative News, 90th Congress, 2nd Sess., pp. 748-763.



8

“passing whim or impulse” of a jury commissioner, Louisi­
ana V. United States, supra at 380 U.S. 153.

II.

Neither the State of Georgia, nor remaining appellees, 
make an attempt to deny that racial discrimination infected 
the process of selection of Taliaferro County school hoard 
members prior to the institution of this litigation. Appel­
lees appear to contend, however, that appellants are not 
entitled to relief because a Negro was appointed to fill one 
of two vacancies on the five-man school board and his ap­
pointment was later ratified, as required by Ga. Code Ann. 
§2-6801, by a recomposed grand jury.

The short answer to appellees’ contention is that Negroes 
were excluded in the selection of the new grand jury which 
filled the two vacancies. (See Appellants’ Brief pp. 25-38). 
But even if the two vacancies had been filled by a constitu­
tionally selected body, this would not have remedied the 
undoubted unconstitutional selection of the remaining three 
school board members for they were selected by the pre­
vious grand jury—from which Negroes were excluded in 
even more gross fashion than on the recomposed grand 
jury. At a minimum, then, the district court should have 
declared that the school board was selected in violation of 
the Fourteenth Amendment, ordered its membership va­
cant, and required the entire board selected on a non-racial 
basis. Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967). 
Nor were striking down the offensive system of selection 
or vacating the membership of the board the only rem­
edies available to the district court. Given the situation 
in Taliaferro County where an all-white board adminis­
tered an all-Negro school system, the district court could 
have—if it found such relief temporarily warranted to



remove the past etfects of discrimination—“appropriately 
restricted control of the school to Negro parents until 
whites demonstrated the kind of good faith which would 
render their participation no longer a danger to Negroes, 
say by reversing the withdrawal of their children from 
the system.” (Appellants’ Brief pp. 45-48); cf. Carr v. 
Montgomery County Board of Education, 395 U.S. 225 
(1969). Or the district court could have reappointed a 
receiver to operate the public schools, a step which it 
had found necessary in earlier litigation between mem­
bers of the Negro community and public officials in this 
county. Turner v. Goolsby, 255 F. Supp. 724 (S.D., Ga., 
1965). The district court failed to select one, or several, of 
these courses because it concluded—erroneously, appellants 
contend—that the addition of one Negro member to the 
school board was sufficient to reform an unconstitutional 
system of selection which enables whites to control a 
school system that no white children attend.

It should be noted the county school board appointment 
process begins when a superior court judge appoints the 
six jury commissioners responsible for selection of the 
jury lists. Candidates for superior court judgeships are 
nominated and elected by the voters of Taliaferro County 
in addition to the voters of five other counties, Ga. Code 
Ann. §24-2501, 2-3802. (Prior to 1966 the superior court 
judges were elected by all the voters of the State, see 
Stokes V. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964). The 
result is that at no point in the system do Taliaferro 
Negroes have an “effective voice” in the process of school 
board selection, for the official (the superior court judge) 
whose appointments (of jury commissioners) determine 
who will select the school board is only remotely responsi­
ble to Taliaferro county black voters. Cf. Kramer v. 
Union Free School District No. 15, 395 U.S. 621, 627 n. 7,



10

628-29; Avery v. Midland County Texas, 390 U.S. 474, 
484 (1968).

Appellees also appear to dispute that the district court 
should initially fashion the particular relief appropriate to 
remedy the effects of past discrimination in selection of the 
school board. The general practice, however, has been to 
leave matters of this sort to the discretion of the district 
court in the first instance. Green v. School Board of New 
Kent County, 391 U.S. 430 (1968); Griffin v. School Board of 
Prince Edivard County, Virginia, 377 U.S. 218 (1964); 
Powell V. McCormack, 395 U.S. 486, 550 (1969). Given 
the district court’s familiarity with the operation of the 
school system in the county, there is no reason why a 
different practice should apply here.

III.

This Court’s decisions last term in Cipriano v. City of 
Houma, 395 U.S. 701 (1969) and Kramer v. Union Free 
School District No. 15, 395 U.S. 621 (1969), make perfectly 
plain that Article VII, §V, Par. 1 of the Georgia Constitu­
tion and Ga. Code Ann., §'5i2-6801; 32-902, 902.1 violate the 
Fourteenth Amendment by excluding from membership on 
a Georgia school board persons who do not own real prop­
erty. Cf. Williams v. Rhodes, 393 U.S. 23 (1968).

In Kramer, a New York statute denied the right to vote 
in a school hoard election only to those who were not owners 
or lessees of real property within the district or parents 
and guardians of school children. Nevertheless, the statute 
violated the Equal Protection Clause because there \vas no 
proof that it was necessary to promote a compelling state 
interest, and no showing that the persons permitted to vote 
had any greater interest in school affairs than those who 
were not permitted to vote. In Cipriano, the city main-



11

tained that real property owners had a special interest in 
an election held to approve the issuance of a municipality’s 
utility revenue bonds (because property values were af­
fected by the outcome) and that this interest was sufficient 
to warrant exclusion of others. In striking down the Louisi­
ana constitutional provision involved, this Court held that 
all utility users—not only property owners—were affected 
by the character of utility service.

As appellants read the State’s Brief, Georgia has declined 
to state a specific justification for the exclusion of non-free­
holders from school hoard membership such as that free­
holders are “directly affected”, Kramer, supra 395 U.S. 
at 631, or that they have a “special pecuniary interest” 
in the operation of the schools which others do not have, 
Cipriano, supra, 395 U.S. 704. The state concedes that 
“the desirability and wisdom of the ‘freeholders’ require­
ments for state or county political office may be indeed open 
to question” (p. 26) and merely asserts the right of a legis­
lature to impose property qualifications if it wishes. In­
deed, because the Georgia law reflects no attempt to non- 
arbitrarily restrict service to those affected, such an at­
tempt to justify the exclusion would fail. While it might, 
at most, be argued that a property owner has an infinitesi­
mally greater financial interest in the costs of the school 
system than a non-property owner, any parent plainly has 
a far greater concern in board membership than any non­
parent, regardless of whether he is a freeholder. Georgia 
law, however, makes eligible only those parents who own 
real property.

The state also argues that the constitutionality of the 
freeholder restriction is not justiciable. The district court, 
however, granted the petition for intervention, without ob­
jection from appellees, of a non-freeholder and father of 
six school children who was barred from selection to the



12

school board expressly in order to resolve the constitu­
tionality of the freeholder requirement (A. 370-71; 72, 73).

The remaining appellees argue that property owners have 
the capacity to deal with the duties of school board office 
which non-property owners do not possess:

“a person having such fiscal responsibilities should have 
the qualification of having acquired some property 
himself.” (Brief p. 11)

This argument simply does not stand examination in light 
of the facts of contemporary life, for “some property” need 
not mean real property. Men and women exercise consider­
able fiscal responsibilities, both in public and private life, 
without ownership of real property. Similar to the non­
property owners disfranchised in Cipriano and Kramer, 
non-property owners in Georgia feel the impact of the opera­
tion of the public schools and are entitled to a voice in their 
operation, regardless of whether they are real property 
owners. Moreover, the state’s Brief exposes the fact that 
the freeholder qualification does not even serve the limited 
purpose the remaining appellees seek to employ as its 
justification:

. . .  it would still seem that an individual who was a 
serious aspirant for the office of county school board 
member would be able to obtain a conveyance of the 
single square inch of land he would require to become 
a “freeholder.” (Brief p. 26)

The notion the freeholder requirement should be upheld 
because one could become a freeholder by acquiring a 
“single square inch” of land demonstrates that the require­
ment need not serve the purpose of ensuring qualified pub­
lic school board members which remaining appellees claim 
for it. Rather it prohibits those non-property owmers



13

who do not wish to submit to such chicanery from being 
selected as school board members. As the freeholder re­
quirement plainly discriminates against the poor without 
satisfying a compelling state interest, it violates the Equal 
Protection Clause of the Fourteenth Amendment.

Kespectfully submitted,

J ack Gkeekbeeg 
Michael Meltsner

10 Columbus Circle 
New York, New York

H oward Moore, J r.
P eter E indskopf

859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants

Norman J . Chachkin 
Of Counsel



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