Mapp Et Al v Board of Education of the City of Chattanooga TN Joint Appendix Volume IV

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Sylvia Drew Ivie Oral History

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IN THE
UNITED STATES COURT OE APPEALS

FOR THE SIXTH CIRCUIT
Nos.712006 and 712007

JAMES JONOTHAN MAPP ET AL..
Plamtiffs-Appellants and 

Cross-Appellees
versus

BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA,TENN. ET AL,,

Defendants-Appellees and 
Cross-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF TENNESSEE SOUTHERN DIVISION

JOINT APPENDIX - VOLUME IV 
Tr. pgs. 1288 - 1938

RAYMOND B.WITT,ESQ. 
Witt,Gaither,Abernathy 

& Wilson
1100 American National 

Bank Building 
Chattanooga,Tenn.37402
EUGENE COLLINS, ESQ. 
Pioneer Building Chattanooga, Tenn.

AVON N. WILLIAMS, JR. ESQ. Suite 141/1 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tenn. 37219

JACK GREENBERG, ESQ.
JAMES M. NABRIT,III, ESQ.
NORMAN J. CHACHKIN, ESQ. 
SYLVIA DREW, ESQ.Suite 2030

10 Columbus CircleNew York, New York 10019
Attorneys for Attorneys for Plaintiffs-Appellants
Defendants-Appellees and Cross-Appellees

and Cross-Appellants



I N D E X

Witness Page

DEAN HOLDER
Direct Examination by Mr. Witt........... 1296
Cross Examination by Mr. Williams........ 1305
Redirect Examination by Mr. Witt......... 1314
Recross Examination by Mr. Williams...... 1323
Redirect Examination by Mr. Witt.........  1325

MRS. CHARLES M. HOOPER
Direct Examination by Mr. Witt........... 1331
Cross Examination by Mr. Williams........  1338

BILLY L. VON SCHAAF
Direct Examination by Mr. Witt.,.........  1356
Cross Examination by Mr. Williams........  1361

DR. JAMES HENRY
Direct Examination by Mr. Witt...........  1365
Cross Examination by Mr. Williams........  1373

DR. SCOTT KESTER
Direct Examination by Mr. Williams.......  1387
Cross Examination by Mr. Witt..........  1443

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EXHIBITS
For In

No_. Description Id. Evd.
99 Transfer data, 1966-67 1297 1297
100 "Cross Reference Summary Record of 

Transfer Requests by Schools and
Reasons, Year 1966-67" 1298 1298

101 Transfer data, 1963-64 1299 1299
102 "Cross Reference" 1300 1300
103 Vita on Dr. Kester 1391 1391



ii.
£ U D E X (continued) 

EXHIBITS (continued)
No. Description

For
Id.

In
Kvd.

104 Graph 1398 1398

105 Graph, 1963-64 1400 1400

106 Graph, 1970-71 1400 1400

107 Graph 1401 1401

108 Graph 1 4 0 2 1 4 0 2

109 Graph 1403 1403

110 Graph 1403 1403

111 Graph 1405 1405

112 Graph 1405 1405

113 Charts 1406 140b

114 Graph 1407 1407

115 Graph 1408 1408

116 Graph 1410 1410

117 Graph 1410 1410

118 Graph 1430 1430

119 Graph 1431 1431

120 Graph 1 4 3 1 1 4 3 1

121 Graph 1432 1432



X .

I N D E X

Witness

SCOTT KESTER
Cross Examination by Mr. Witt,

Page

1514

MICHAEL J. STOLEE
Direct Examination by Mr. Williams, 
Cross Examination by Mr. Witt.....

1564
1631

8 !ii
Redirect Examination by Mr. Williams. 1670

JAMES R. MAPP
1 i)1 Direct Examination by Mr. Williams... 1675

Cross Examination by Mr. Witt....... 1684
11 Redirect Examination by Mr. Williams. 1687

Recross Examination by Mr. Witt..... 1690
12 Redirect Examination by Mr. Williams. 1690

U EXHIBITS
For In1 1- No. Description Id. Evd.

1 123 Vita of Dr. Stolee 1572 1572
1 •> 124 Map 1581 1581
i: 125 Overlay 1581 1581
i.; 126 Statistical summary 1582 1582
i 127 Overlay 1592 1592

128 Table 1592 1592
i 129 Overlay 1597 1597
-- 130 Table 1597 1597

13! Charts 1602 1602

132 Table 1607 1607

H l C O U  N I W t  P O H

i f to r*Tfs district* < uw



ii.
I N D E X  (continued) 

EXHIBITS (continued)
No. Description For

Id.
In
Evd.

133 Table 1608 1608
134 Table 1609 1609
135 Table 1615 1615
136 Table 1647 1647
137 Letter and envelope 1673 1673
138 Document 1673 1673
139 Planning statement 1681 1681
140 Statement 1687 1687

141 Plan of Dr. Stollee 1693-77

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1 1695

IN TliL DISTRICT COURT OF TUN UNITED STATES 
EASTERN DISTRICT OF TENNESSEE 

SOUTHERN DIVISION

JAKES JONATHAN MftFF, et al.

: CIVIL ACTION
v s . :

: NO. 3564THE BOARD OF EDUCATION OF THE :
CITY OF CHATTANOOGA, HAMILTON ••

..sx.. a u :
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J B g fa a d a a fa b
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Avon N. Williams, Jr.,

Raymond B. Witt, Jr., Esq., and John T. 
Henniss, Esq., of Witt, Gaither, Abernathy 
and Wilson, Eaqrs.
Eugene N. Collins, Esq., and Ellis K. 
Meacham, Esq.

Friday, July 16, 1971

BE IT REMEMBERED, the above—entitled cause came 
on for furtlier hearing on this date before the Honorable 
Frank W. Wilson, Judge, without the intervention of a jury, 
when the following further proceedings were had and evidence

A t F N  N



SEVENTH DAY OF TRIAL 
May 17, 1971

Monday,
9:00 O'clock, A. M.

(Thereupon, court reconvened pursuant to adjourn­
ment on Friday, May 14, 1971, in chambers, when the following 
proceedings were had and evidence introduced, to—wit*)

THE COURT: Mr. Witt advised me a few minutes ago
he would like to have a conference this corning for a few 
minutes. So that was the reason I had asked all of you to c«.t 
back. Mr. Witt.

UR. WITT: All right, sir. May it please Your
li i lionor, we met -- School Board met yesterday afternoon for about

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! l! three hours.

|j The process of this particular litigation is
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extremely divisive to the school community and the board feels 
this. The Board has always tried to obey the Court's orders 
and we have a proposal. It's not in final form, but it is a 
possible settlement or compromise that the Board has unanimously 
authorised me to indicate to the Court and tc Mr. Williams.

Now, it has not —  the details have not been worked 
out, but we hashed out the public relations and other aspects 
of it and legal aspects of it yesterday

And the Board, as I said, is unanimous. It is

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like all compromises, it doesn't —  both sides will -- won’t
get what they want immediately.

In essence, the compromise is this; With regard 
to student desegregation we take the language in Swann that 
Your Honor mentioned several days ago and witn regard to a 
majority to minority transfer. And I guess I should say here 
that we are now speaking of majority in each individual school 
because the school system as a whole, if you take out the 
tuition students, the whites become a minority in the school 
system. So this is on a school-by-school basis we are talking j 
about, the majority to minority transfer with no restrictions 

and with free transportation.
|

And this would be applicable next September to 
all schools, elementary, junior high and senior high conditioned 
upon having the money to get the additional buses and to pay th* 
cost that we have not asked the City Commission for. We really 
don'tknow how many buses but it would probably be somewhere 
in the neighborhood of 25, but that’s a very, very tentative j
figure.

Then the second part of it is with regard to 
faculty desegregation. We would temporarily suspend the reluc­
tance to arbitrarily assign teachers against their will and 
also would transfer teachers —  would not wait on vacancies is 
what I am trying to say, to the point and vith a goal, an

1289

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1290
announced goal, of moving the faculties of every school to a 
[/oint at wnich they would not be racially identifiable because 
of their faculties.

This, in essence, is the proposal. The Board sees 
this as something that is possible and tJiat it can be done.
And that it’s the best that they can think of.

Now, that’s the —  in essence, that's the proposal. 
Tim COURT: Anything you wish to say?
MR. WILLIAMS: If the Court please, I can only say

I this, that I could not advise my client to accept any such 
compromise and settlement because it would leave the schools, 
insofar as pupil assignment is concerned, substantially as 
they are. The majority to minority transfer is not effective 
as a means of desegregation. However, I would be glad to step 
outside a moment and consult with him on this.

THE COURT: All right.
(Thereupon, Mr. Williams and Mr. Mapp left the 

Judge's cnambers, and in their absence the following further 
proceedings were had, to-wit:)

THE COURT: I want to express iny appreciation to
all the members of the Board for coming here this morning. 
Appreciate it immensely, your interest in these problems. We 
all work together, I hope we can come out with a result that 
will be more acceptable than would be the case if we worked



1291

at odds with one another.
MR. WITT: I think I speak for the Board, I’d say

that I am sure the Board completely agrees with the Court, and 
I am sure how we get there from here, though, sometimes might 
disagree on.

THE COURT: Well, quite frankly, I felt a little
badly abo-t what I said the other day. You know, you get a 
little lonely once in a while as a judge. You want some 
company once in a while and you sometimes feel like you are all 
alone. You need someone to talk to.

(Thereupon, Hr. Williams and Mr. Mapp returned to i 
the Judge’s chambers, and in their presence the following

Ifurther proceedings were had, to-vit:)
MR. WILLIAMS: If the Court please, the plaintiffSjI

feel that the offer of coreproMise and settlement is unacceptable.
THE COURT: All right. Where do wo stand now in 

regard to the proof? First, let me ask of you with regard to 
the last witness, have you made your decision as to whether

!you are raising any question as to the matter in which the 
transfer plan is administered or are you raising questions only 
with regard to the transfer plan itself?

MR. WILLIAMS: Our questions are raised only with
regard to the transfer plan itself and the effect of it as it 
has operated, not with regard —  in other words, we are not



1 1292

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saying that there has been any maladministration of the plan 

itself.
THE COURT: All right.
MR. WITT: Your Honor, perhaps if there is ever

an opportunity to say this under these circumstances it's now, 
and it may not be appropriate but let me say it, if I may.
The Board’s goal and the Board —  we discussed this again 
yesterday, and I think we all agree —  is that integration of 
this school system, not desegregation. And integration in the 
sense that the environment in every classroom that contains 
black and white children has a tone and a feeling of mutuality 
that's conducive to educational opportunity.

Now, this necessarily involves acquiescence of 
students and parents, not approval necessarily but acquies­
cence. And what the Board is attempting to do is to meet and 
give the remedy that Brown really wantec.. And without inte­
gration, Lrown one and two are a sham.

Now, to get from here to there involves some of 
the most difficult human relations problems that have ever beer, 
experienced, and I think the Board will agree. It's not a 
question of semantics. It’s a question of reality and one of 
tin: things that's happening now is that we are conaemed, the 
Board's concerned that in the very process of this litigation, 
the opposite goal will be attained, the polarisation which w<

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1293

would like. to avoid. These are the kinds of. things that if 
they were said in open court by different members of the Board 
and by members of the staff, would be said at considerable risk 
to their personal relationship with their tellowman. For that 
reason every witness has been in a very difficult position 
because the concepts and the ideas and the values involved are 
so difficult to express clearly.

And we would think thatsome kind of —  that the 
effort, the progress that has been made -- I think the record 
will show that the extent —  this is perhaps one of the few 
school boards in the South with the clearly black and white 
on the school board. And in this, this is, they are continuing 
to try to do a good job, to try to meet the needs of the kids 
and we are fearful that the process of this Litigation would 
be, modern word I guess, is counterproductive. But that is 
one of the reasons we offer to compromise and I am trying to 
persuade ilr. Williams, is what I am trying to do. But let —  

THE COURT: (Interposing) Let me just say this.
Of course, it wouldn't be proper for me to comment upon the 
evidence at this point. The evidence hasn't been completed 
in the case and I wouldn't therefore think it appropriate 
or proper for me to make any comments.

Let me just make a suggestion and that is that we, 
unless you gentlemen wish to have time to confer further with

R l C H A H O  S M  ! H  O *• f v A L  > _ O U R T •)

U N I  I U '  t j T A T F S  l > • S T R I C T  C  • • ' f> T



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each other at this time —  if you do, certainly you will have 
an opportunity. If you do not feel that that would be helpful 
at this particular point, I would suggest that what we do 
is proceed to complete the proof in the case and then before 
receiving any argument that we get togehter again and see 
whether any understandings might be reached and to what extent 
any understandings or, at least, find out where there may be 
agreement, where there may be disagreement, and then receive 
argument after doing that.

Any reason why we should not proceed in that manner? 
MR. WILLIAMS: I don't believe so.
MR. WITT: Agreeable certainly with the

defendant.
THE COURT: Suppose we complete, unless —  do you

wish to confer with one another further?
MR. WILLIAMS: Time is too important, if Your Horn}

please.
MR. WITT: All right.
THE COURT: Suppose we complete the proof and at

the completion of the proof, before receiving argument, we 
will take a recess and let you gentlemen first confer with one 
another and than if you wish to confer with the Court and all 
members of the Board present, we will do that also.

MR. WITT: All right.

1294

M A w n  b M U ' <  O l  » i < i A L  C O U R T  W t P O R T f f i  

U N I I » n  r - T A T F s  D I S T R I C T  ^ O U R T



1295

THE COURT: And if that is productive of anything,
that will be wonderful. If it isn’t, then we will have to 
proceed, of course, receive argument and 3ee how we go froia 
the re .

MR. WITT: All right. Thank you, sir.
(Thereupon, counsel for the respective parties 

and the Court returned into open court when the following 
further proceedings were had and evidence introduced, to-wit.)

THE COURT: All right, gentlemen, are we prepared
to proceed in the case of James Jonathan Kapp versus the 
Board of Education?

MR. WILLIAMS: Plaintiffs are ready.
MR. WITT: Defendant is ready, Your Honor.
THE COURT: Upon Friday, Mr. Holden was on the

’ •Lness stand and I believe his cross examination —  his 
direct examination had not been completed, is that correct?

MR. WITT: Yes, Your Honor.
THE COURT: The defendant was also asked by the

Court as to whether he was raising any —  plaintiffs, rather, 
as to whether they were raising any question in regard to the 
administration of the transfer plan and whether you wish to 
pursue that line of inquiry, Mr. Williams.

MR. WILLIAMS: If the Court please, plaintiffs 
raise no question about any improper or faulty administration

'< •' r i  A tf I i b  W > i O » ■ A i O u M *  ' M l  '  H ' * ■ ■

> N l ’ i .i f A T F b ' U l b T  Wl .  T  v v . / R r



1296

of the plan. The question is raised by the plaintiffs in 
reference to the transfer plan, will be in reference to the 
effect of the transfer of provisions and of the extent to wnich 
they have been utilized in certain regardsw

THE COURT: Okay. May we have the witness?
DEAN HOLDEN,

having been previously sworn, resumed the stand and testified 
further as follows:

DIRECT KXAJUNATION
BY MR. WITT:
q Mr. Holden, I believe we had completed —  virtuall
completed your examination of the —  of exhibit with reference 
to 1970-71, the Exhibit 98.

How many transfers took place under this policy 
in the year 1970-71? Do you have that total figure?
A Total number of transfers granted?
Q Yes, in 1970-71.
A I am —  think I have a rough calculation of
451, 451 would be very close.
Q I didn't understand you.
A Four hundred fifty-one, I believe, was ray count.
We don’t have it tabulated at the end of the listing and should 
have.

q And, approximately how many students were in the
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.  m  < t  i  i ,  j t a k s  d  i s t  m  i  t . - ) i .  n  •



Holden - Direct 1297

system that year?
A Now, we are referring to the current school term?
Q 1970-71, this term, yes.
A We were something over 29,000.
Q All right. Tlien percentagewise, these transfers
would be, what?
A One to two percent.
Q Now, I hand you a document entitled “1966-67,"
which I would like for you to make as Exhibit 99 after it’s
identified.

THE COURT: Exhibit 99.
(Thereupon, the document referred 
to above was marked Exhibit No.
99 for identification, Witness Mr. 
Holden, and received in evidence.)

BY MR.WITT:
q Mr. Holden, what is this?
A This exhibit is parallel exhibits of 1970-71,
which indicates the —  our regular transfers for the year 
1966 and '67. Includes, believe, the same information relative 
to transfers as to 1970-71, with the exception that we are 
not identifying race in 1966-67. We are not identifying them 
on this record.
tj All right. Did you prepare addenda to that

|
giving the suramary of the transfer requests? Did you not 
prepare an addenda or amendment?



Holden - Direct 1298

j\ This document you have handed me has a tally
showing 238 transfers for that particular year.

Q All right. But —
MR. WILLIAMS: (Interposing) Like to ask counsel

if he has a copy of this Exhibit 99 that he is talking about.
MR. WITT: I believe, Mr. Williams, you already

have a copy of Exhibit 99.
MR. WILLIAMS: Mine doesn’t look like —

BY MR. WITT:
r,a* (Interposing) Now, 1 want to identify the
amendment that was given Mr. Williams lexer. This is entitled 
'Cross Reference Summary Record of Transfer Requests by
SchooIs and Reason, Year 1966-67."

THE COURT: Exhibit 100.
(Thereupon, the document referred 
to above was marked Exhibit No.
100 for identification. Witness Mr. 
Holden, and received in evidence.)

BY MR. WITT
0 Would you identify the document in your hand?

A This is a document which parallels one with
1970 and '71 which indicates each school in the system and 
indicates the number of —  the schools from which indicates

the schools from which pupils were transferred into each
individual school system. For instance, the first one listed 
was pupils being transferred, Brainerd Junior, showing that

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Holden - Direct 1299
three were transferred or given permits cut of zones to 
enroll from Elbert Long and seven came to Brainerd Junior from 
Dalewood, for a total of ten that year. Out-of-zone pupils 
from Brainerd Junior High School.
Q All right. Is this in a sense im amendment or
addition to Exhibit 99?
A Yes, sir. It -- it's data which is based on
Exhibit 99, yes, sir.
Q How, how many transfers took plAce under the
Board policy in the year 1966-67?
A This record shows, I believe, 238.
Q All right. I hand you a similar document for the
years 1963-64. Would you make this an exhibit 101 to your 
testimony?

(Thereupon, the docoment referred 
to above was marked Exhibit No.
101, for identification, Witness 
Mr. Holden, and received in evidence.)

3*: HR. WITT:
Q Is this document similar to the two proceeding
documents that you have filed?

'
A Yes, sir.
Q Was it prepared in substantially the same fashion?
A Ye3, sir.
0 Now, I hand you a document with reference to years



Holden - Direct 1300

19u3~t»4 which is entitled "Cross Reference." Would you please 
identify that?

THE COURT: Exhibit 102.
(Thereupon, the document referred 
to above was marked Exhibit No.
102 for identification. Witness
Mr. Holden, and received in evidence.

THE WITNESS: Cross reference for '62-64 serves
!' iexactly the same purpose for this particular year as cross
I ,  :reference has for previous years showing the number of pupils 
j who were permitted to transfer to a particular school and the 
; school from which they transferred.
!! BY MR. WITT:

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q How many were involved in this particular year? i
A Our records for 1963 and '64, frankly, the file
seemed a xittle spotty in working this —  secretaries in the 
office found an attachment in the files dated April 29th, 1963^ 
of tallying out of zone permits by reason, coming to a total 
of 349. This is somewhat more than we have listed here. 
However, with the —  I think it would be guite close. 
q What is the explanation, Mr. Holden, for the
increase in the number of transfers in the year 1970-71?
A From previous years?
Q Yes.
A I think we could identify, perhaps, part of the

o  •



Holden - Direct 1301

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reasons. Why we couldn’t identify, as we I think have explained 
previously, we did revise the request forms and added one or 
two reasons for transfer which had previously been permitted 
but had not been in our listings and without repeating too 
much, an example of one of these was that students who were 
in special education classes may go to a school other than 
their home school if the home school does not have a special 
education class which is true in many cases; or if their 
home school’s special education class is full.

This would account for some. The added provision 
whereby the Board made —  is possible fo.' persons to request 
and be granted an out-of-zone permit for their children to
complete the last year in a given school if they move in the I
summer vacation between the eighth and ninth or between the 
fifth and sixth. This accounts for some. We have also placed 
greater stress upon getting a total count of pupils who we 
experienced for a while some laxness or perhaps sometimes 
there might have been an administrative director to this point 
on 2A whereby school personnel may have transfer privileges.

We were getting —  we were getting a full account 
on this. We have been stressing that we neid to —  to know

j

every pupil who is out of zone regardless of the reason and 
we feel we are getting very close to 10C percent on this, 
since we have stressed this and since we have changeu the



Holden - Direct 1302

provision as far as the count on special education students
is concerned.

And then there is, as we say, the stipulation that 
children way complete the last year of a specific type of 
school. This, I think, would cover the obvious reasons that 
I can see.
Q All right. Hr. Holden, do you have any first­
hand knowledge of any of these transfers. che people involved, | 
the parent or the child? !
A I am not sure I follow the question.

! Q In the handling of transfers, in your position in
the Central Office, you have any first-hand knowledge, personal

3
observation of the individuals, the parent and of the child 

!' i
involved in any of these transfers?
A By first-hand knowledge, you are referring to

ji
ij some tiling other than our out-of-zone request forma, the
i !written fonas, and the documents, is this riyht?

Q Yes.
A Generally not. There are c*any, many contacts
with the office by phone and many by —  in person, people who

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desire that their children attend a school other than the

I
ji one to which they are zoned. I think we previously had 

mentioned that many transfer requests are never put into I
written form because of the principals* level or at this

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Holden - Direct 1303

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particular level that kind of a contact, they are apprised of 
the fact that they do not have any reason and that there is no 
reason to pursue the request further.

There are numerous cases in which we do have -- 
there are quite a number of cases in which we do have individua 1
contact with parents, generally not the child. The child may 
come along. People will ask for interviews and if these are 
involving requests which are not under what has been termed
as legitimate reasons for out-of-zone permit, I think we 
perhaps have identified that we are meaning here all of them 
except ”H,“ which is the one that requires visiting teacher 
reports and documentation and so forth.

Generally, these interviews or appointments are 
handled by —  with Dr. Bond at this time, and myself, and in 
many cases, others. We will have some of our social workers, 
some of these sometimes. Sometimes principals.
Q Is vour testimony based primarily upon written

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records?

li iI1 • iA Ye3, sir.
II q When you used the term "we," ir. your previous
ii jj, answer, what did you mean. Who is we?I|
| A I guess I have been using the word "we" when I

mean I,‘ in many cases. I thought of that as I was using it.i
Of course, when I am using the term "we," I think I am talking;

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Holden - Direct 1304

about a Board policy and practice and so forth; but perhaps 
in part of the cases the word "I" should have been used. 
q Did you participate in any way the preparation
of the pupil 1ocater maps that have been prepared the last 
two or three weeks?
A Yes, sir.
q Does the administration of this transfer policy
have any bearing upon the accuracy of these pupil locater maps?
A Yes, sir. It would affect to a degree and it
would affect to a degree the accuracy as far as numbers are
concerned and which I believe it has been previously placed 
in testimony that the out-of-zone pupils are not pinpointed

j

here or tiie maps. To this degree, this would be true, yes, siii.
I believe that we have provided information on

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numbers of out—of—zone, may take a second to explain how we 
secured our maps, the procedure.

I
q I believe so.
A We cut from the maps for elementary and junior
high schools they are small individual school zones; namely, j
of course, to provide each school with a full city map from 

i i
the standpoint, I guess, of bulk and of putting them back
together and price maybe, too.

The schools then were asked to locate by dots
i

the pupils within the school zone. These were then returned tc?

i



1 1305

us and our junior high and elementary maps tnen are glued back 
together as you would work a jigsaw puzzle. So, our people 
did not have —  our school principals did not have the full

Holden - Direct

map.

|

Si

Q Then, the pupil locater maps were put together
at the school, at the attendance level, is tnia right?
A The individual attendance centers zone map was
dotted. The dot3 indicating pupils was done at the school. 
Putting the map back together as a jigsaw puzzle was done back

iitii
!i

|!j!
ii

in our offices mailing a composite map.
Q All right. Then, with 451 transfers to date in

I
1970-71, then these maps will be deficient, as I understand 
you, to the extent of the location of those 451 students?
A Yes, sir. This would be an average of approximately

I
50 per grade, I guess, yes, sir.
Q Are there any other locations with regard to these
maps and their accuracy that you should identify?

I

A Not to my knowledge.
MR. WITT: I have no further questions of Mr.

it Holden.

BY MR. WILLIAMS:
CROSS EXAMINATION

0 Mr. Holden, you mentioned that in connection with
the 1963-04 school year, that there waa a provision which is

i



Holden - Cross 1306

I not shown on your transfer policy which for that year which 
permitted students who resigned in one zone and were rezoned 

j under school desegregation under another zone to remain in the 
zone that they were attending before school desegregation to 
complete the —  to complete their training in that school.

I;
I' Was there such a provision?I

A I don't recall that I have testified to such

provision.

I*
»

q I thought I understood you to say something about 1
allowing a student to remain in the school that he formerly 
attended to ca • letd the last year in that school?

|A Mr. Williams, I believe —  I believe my reference
!' on that point was to the current year which this past

identifying reasons why I thought that where we might identify ;
r

part of the increase here and that was that this past prior j
j:!i to this current school year the Board did approve a provision
|| !
|! which permitted a pupil to do that; but that became effective

with this current school term.
o Then, such a provision in effect now?

!
A Yes, sir.

jj Q so that if a student —  if ? student were rezoned,
you have a plan —  you have a provision that would permit him ; 

■ i
to remain in the zone that he formerly attended to complete
his education in that school?

i'



Holden - Cross 1307

A We have this provision now, yes, sir.
0 And, it's stated —  it's stated in -- is that
3tated in the '70-71 provision? Which provision is that in, 
'70-71?

Oh, are you talking about provision ’'G" that
! says pupils that move to another school zone during the school
I;

year may be permitted to complete the year to the school to 
I1 which the previous address was zoned?

A No, sir, I am talking about ML,“ pupils residing
I

in an area which is rezoned to another school might continue 
in the school to which the address has been previously zoned.

However, the Board reserves the right to require |jl
f pupils to transfer immediately to the school to which theI;

area is rezoned if such action is deemed advisable by the
!

Superintendent and the Board.
Q Have you had this provision -- you say this --
this year i3 the first time you have had this provision?
A This is the first year in w'lich we have incorporated

p i
it, in which it has been clarified as one of the listed

| |( I! provisions.|i
Q But, you had it all along, didn't you?

■

ji A Yes, sir, we had it and, excuse me.
Q Ye3, sir, go ahead.
A It has been in the writing all along, I believe, j

i
i!;i



Holden - Cross 1308

in stating that in cases —  the writing in this —  this is 
the same type of change that I have identified in relation 
to Special education pupils.

The written statements as they went into the 
zoning book have indicated that the Board insofar as possible 
and if they so designated, a zone change was made, would 
permit pupils to remain —  to remain in their old schools that

I
Iwere alreedy enrolled in it.

Q Yes, sir. Now, this was initiated, actually, back
in 1963 -- '63-64, when desegregation first began, wasn't it? i 
A I —  I do not know. I assume it was initiated
at the time that the policies were established.
Q Well, I think you said this year is the first I
time it's been explicitly set out in the transfer policy in 
writing, is that correct?
A iJo, sir.
Q Well —
A (Interposing) I said that this year is the
first year in which it has been listed as one of the ABC’s and
o ’ s.
o All right.
A That it has been in the written information.
In other words, we have, as I believe, been provided for you, 
copies of the criteria. I am not locating it specifically at

I



1 Holden - Cross 1309

this time and this is one of the current years, but I have got 
more stuff than I can handle.

THE COURT: Are you looking for the policies?
THE WITNESS: I am looking tor what we call,

Your Honor, criteria for out-of-zone permits and we had them 
identified the top right-hand comer by Xeroxed, typewritten 
label.
BY MR. WILLIAMS:
Q Are you referring to Exhibit G5?

Take a look at this copy that your counsel has 
just handed me and see if that is what you are referring to.
A Yes, sir, this is what I am referring to.
Q All right, sir. Now, what part of that are you
referring to?
A The first —  may I use this copy?

Q
A

Yes.
It’s from the 'Gl-62 booklet on page three. 3(i),

last paragraph in the second paragraph from the bottom.
Shall I read it?
0 Yes.
A "The Board reserves the right to change school
rones as needed. At intervals such rone changes need to be 
made -- at intervals such zone changes need to be made at 
once as result of sudden population shifts, opening of housing

I



Holden - Cross
projects, necessity of closing certain school building*, 
school fires, or other calamities. In such cases of sudden 
zone change, all affected pupils are required to transfer to 
the new school. However, should it be possible in an occasional 
zone change for pupils already affiliated to remain in the 
home school, it will be designated in the legal zone descrip­
tion. Also, when an occasional classroom becomes overcrowded

*

for which a zone change is not necessary, the Superintendent
Iimay administratively assign — "
j

q (Interposing) Now, then —  parion me.
^ What I mean is that we drew it from that narrative

I

form and placed it into an ABC structure. ,
q But, in that narrative form, it was practiced

j
in the years —  in the ycarB in between, 1961-62, and 1970-71?

i
A Yes, sir.

i
q How, then, there was no form oi transfer for

I
Ithat, was there? ;

 ̂ You mean no —  no formal transfer form, the
proceduie was not carried?

I
q Yes.

i
A This is generally true, yes, sir.
q So that we are unable to ascertain how many

j
white students, for instance, who were —  we don’t have the

1310

maps up here.



Holden - Cross 1311

Well, here's one. You are -- the exhibit 98 through 
102, which you have filed do not enable us to ascertain how 
many white students who were residing in the zone of Frank 
Trotter School in 1963-64 but who were attending St. Elmo 
School under the zone policies, under the dual zone policies 
prior to 1963-64 were permitted to continue their education 
in St. Elmo School notwithstanding the rezoning, Frank Trotter 
do they?
A This is right, our records do not indicate this
for any pupils of any race at any place, would not be complete 
on it.
Q Yes. Ana the same was true with regard to --
to the junior high schools, that records would not, altnough 
v/e don't have a junior high school map, that the records would
not show the —  the pupils who were allowed to remain either
respectively black or white, in the dual school zones after

i

the rezoning by virtue of this provision that permitted them 
to complete their education in that same school?
A we would not have this count on through 1969 and I
1970. i
Q so the effectiveness is that, Mr. Holden, that
actually even to the extent that there was any or would have 
been any change effected by the adoption of the I don't 
like to put it that way —  by the readoption of the old school



Holden - Cross 1312

zones and new school zones in 1963-64, this was effectively 
emasculated, wasn't it, by at least the effect of it was 
postponed for several years since the students who were already
in —  who were already attending across zone lines in a 
segregated school were permitted to remain in that segregated

i

school, weren’t they?
MR. WITT: May it please the Court, Mr. Holden

didn’t come to the system until 1966 and I don’t understand 
what year Mr. Williams is talking about.

THE COURT: He may frame his own answer. If he
does not know, he can so state.
BY MR. WILLIAMS:

. . . "  .U J.J ,

Q You understand what I am saying, Mr. Holden,
I.Ithat although —  that although you recall from the evidence I

that in this little area here we had -- we had four black j
schools and one white school under the dual zoning, St. Elmo

I

being the white school and the entire zone for St. Elmo ij
covered the same zones as the black for black elementary

I
schools. And the white children who lived in the area of 
Bell, Donaldson, Trotter, and whatever the other one is -- 
A (Interposing) Sanderson. I
Q Sanderson, the white children who lived in those j
zones attended Elmo under the dual zone, that is correct, 
ian't it’

i



Holden - Cross 1313

A If any white children lived in those zones.
Q All right. Now, then —  now, then, after the
dual zoning wa3 in effect in 1963-64, under this transfer 
policy that you have mentioned, any white children who lived 
in the zones of these black schools were permitted to attend --j 
continue ittending St. Elmo until they completed their educa- l
tion in that school.

That is true, isn't it? That's the way I under- j
j

stand your testimony.
A My understanding of the practice —  I refer to it
as a practice -- policy either here is that children, if it 
were white children there, they would continue if they desired 
in St. Elmo. If they were black children in St. Elmo, they I
would continue in one of the other schools.
Q So to that extent, then, predicated upon the I
choices of the children, desegregation desegregation was 
delayed until —  until all the children wno were enrolled in
St. Elmo, all the white children who were enrolled in St. Elmo ,

I
in 1963-64 and all the black children who were enrolled in

jthe other schools in that particular locality had completed 
their education. Well, that calls for a conclusion. I will 
withdraw that.

MR. WILLIAMS: No further questions. Your Honor.
Oh, there was one other thing.

;

i



BY MR. WILLIAMS:
q Dr. Bond had said the other day that he was
going to find out for us whether or not there was any written 
transfer policy prior to this 1961-62 statement of policy that 
is included in the Exhibit 65. Has that been ascertained?
A I haven't ascertained it.

MR. WILLIAMS: All right.
REDIRECT EXAMINATION

BY MR. WITT:

Holden - Cross 1314

Q
A
Q
transfers.

Mr. Holden, will you please take Exhibit 101 
Excuse me.
Exhibit 101, which is the 1963-64 record of

Let's look at the transfers out of the Trotter 
Elementary School for that year. Do you find the record of 
those transfers?
A This record says there were no transfers recorded.
0 Out of Trotter to anywhere?
A Yes, sir.
q All right. Now, let's look at --

MR. WILLIAMS: (Interposing) Oh, we will
stipulate that there were no transfers shown on their exhibit, 
if Your Honor please. He has just -- and 1 make no question 
about this exhibit. The only —  what Mr. lie 1 den testified to

I



Holden - Redirect 1315

was that there was this provision that is not contained in the 
transfer policy wherein there were no transfers. Hasn't shown 
as a transfer. It was simply that student who resided in —  

white student who resided in the area of black school zones 
under the dual zone were permitted to continue in their same 
schools and similarly, black students were permitted —  who 
resided in the area of white schools, the old dual zone, were 
permitted to continue in that school until they completed thei 
education in that school.

THE COURT: As a practical matter, has the plan
been in operation sufficient long now that there would be no 
students unless they failed to pass for a number of years?

THE WITNESS: Yes, sir.
HR. WILLIAMS: That's probably truo, if Your

Honor please, and I simply brought that out just to show that 
that there was -- that there was action by the Board in that 
respect which helped to perpetuate segregation.

MR. WITT: I am confused.
THE COURT: Well, for example, 3t. Elmo wa3

zoned in 1964. It's now 1971, seven years later. If that’s 
a 6-year school, seven years would completely eliminate --

MR. WITT: (Interposing) Yes, sir. The point
was made simply to show that the school wasn't actually —  

that the zones were not actually enforced in 1963-64. They



I Holden - Redirect 1316

: !
I 1

18

20

22
21

were enforced si.\ years later. What I an attempting to show 
is the zones were enforced.

MR. WILLIAMS: Oh, all right.
BY MR. WITT:
0 Mr. Holden, if there had been a white child in
the Trotter area in 1963-64, where would that child have 
gone to school?
A To my knowledge, the child could have continued
in the school which he was already attending which for this 
purpose would be St. Elmo.
Q All right. But, is there any remaining, as of
now, in 1970-71, is there any remaining «£ ect that you know 
of of that kind of an operation?

MR. WILLIAMS: Well, I object to that. That
calls for a conclusion, if Your Honor please, a very arguable 
and I intend to argue about the effect of that.

'x,kT: If he has factual information about
what students elected to claim the benefit of paragraph (i) 
of the policy, he may testify what his knowledge is. Is that 
your question?

MR. WITT: It's my —  my question is trying to
establish whether or not the transfer policy has been 
administered as we had proposed and we have stated that it's 
been proposed —  administered.

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Holden - Redirect 1317

THE COURT: Well, the current transfer policies
are set forth, as 1 understand, on the reverse side of the 
Exhibit No. 87 and the witness has referred to paragraph (i) 
as being one of those policies.

Now, if it's your question as to whether or not 
any student this last year has elected to claim the benefits 
of paragraph (i) and if he has knowledge of that, he may 
testify. Do you wish to have that exhibit?
BY MR. WITT:
Q Hr. Holden, you assumed the responsibility of
transfers in June of 1966, is this correct?
A Yes, sir.
Q Has race insofar as you knoi* been a part of any
decision with regard to transfers since the time you assumed 
this responsibility?
A No, sir.

MR. WILLIAMS: Well, I object to that. He may
testify to what he knows, if Your Honor please, but he can't 
that's a conclusion that he was asked.

THE COURT: Well, he is asking to the extent of
his knowledge.
BY MR. WITT:
Q Has race been used to increase desegregation to
your knowledge?

R I C H A R D  S M  ' H  O F F I C I A L  C O U R T  R F . P O R T f c H

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Holden - Redirect 1318

HR. WILLIAMS: I object to that, because that
c 1■ n conclusion.

THE COURT: Yes, that would be a conclusion.
BY MR. WITT:
Q Has race been used in such a way as to increase
desegregation ?

MR. WILLIAMS: I still object. That is a
conclusion.

THE COURT: Yes.
MR. WILLIAMSi No conclusion on that. The facts 

would indicate whether this happened or not. He nay testify 
as to what knowledge he has of the facts, as to whether the 
effect of it would be to increase or decrease segregation or 
desegregation would be a matter of opinion, would it not?

MR. WITT: If it*s —  appears to me that if a
transfer was effected and as a result and because of the 
race of that particular student the number of the minority 
race in that school would increase or decreased —

THE COURT: (Interposing) Yes, he may testify
to that.

MR. WITT: would be the result of this decision.
THE WITNESS: The records that have been submitted

as evidence, I would indicate that ttase records would show 
that there are instances in which schools nave been desegregated

H l C H A H U  i M ' I H  O H  i f  I A L  C O  U R I R t - P O H ' t R  

U N i U D  S ’ A f f S  D I S T R I C T  C O U R T



1319■ Holden - Redirect
ij

to a greater extent. There axe also evidences that it, of 
course, and this is obvious, that it has had an obvious effect 
in some cases. I night use an example from Exhibit, the 1970-71 
records.

And, we would go to —  well, leu’s choose 
'issionary Ridge and we will need to go to the individual 
pupil listing of Missionary Ridge.

We show here 19 transfers and 5 of those are 
black and 14 Are white. Missionary Ridge is —  Missionary 
Ridge is predominantly a white school. Xu fact, these 
transfers would make up a bulk of the black pupils there from —  

recalling from the record. These are incidental in one sense 
of the word.

Orchard Knob Elementary shows one transfer in, 
white, and in recent lays we have had a notice from Orchard 
Knob Elementary that a white fastily has moved out of that 
zone and nas been requested to be permitted under the policy 
to remain for the balance of this school term. To determine 
the full extent of this would necessitate a very, not extensive, 
but few minutes of computation on this vtuld indicate the 
number oi situations in which this would ne the effect.
Q And in order —  in order to determine this
information, would you need to have records that indicated 
the race of the student being transferred?

U N I T E D  S T A T E S  DISTRICT C O U N T



Holden - Redirect 1320
A Yes, sir.
Q Do the records of these transfers for the year
1970-71, do they now have a —  any indication of the race of 
the people being transferred or not?
A The only place t-iwfc my records have the race is
on this particular document here where we testified, I believe, 
on Friday that we did go back to other sources, into the 
school to secure this. Transfer request records, as they 
cone through, have no indication of race and generally the 
only way ve know this would be maybe assuming —  knowing that 
the school was primarily all white or all blade or this —
Q (Interposing) Are you testifying then as —
as previous to last Friday, your records for the year 1970-71 
have no reference to race on transfers?

MR. WILLIAMS: We will stipulate that he so
testified, Your Honor please. I recall.

THE WITNESS: Yes, sir.
BY MR. WITT:
Q What were the other —  how did you get this
information with regard to race?

MR. WILLIAMS: I object to it as being immaterial,
if Your Honor please.

THE COURT: He may state.
-TINESS: From another source we found that

m <  H A R O  ->M TH O t - K l C l A L  C O U R T  W F P O N I F H

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Holden - indirect 1321
' it
i
i

o

H

10

12

the schools had previously submitted soma out-of-sons inform* 
tion which had not boon requested b* . e, actually was in 
reference to —  to the maps, I believe. I found that this 
existed. He found situations in which we did not have 
corresponding names and what not. Some pupils had transfer 
requests approved since that time. Part of these cases we 
went to what we call the pupil attendance records. Secretaries 
researched those and in two or three cases ws dialed the phone 
and asked the schools to giv us this information.
Q How, Mr. Holden, I direct your attention to
Exhibit 33, which ia the elementary school —  single s h o d

n zones when they were first initiated. And, they are substantially
11

19

the same —  the record will show.
How, in 1967, if a white child lived in the 

Trotter zone, where would that child go c.o school7
MR. WILLIAMS: I object to that as being

repetitious. Answered that about three times. He said 
about thrse tiroes tin at it would have had the option to go

20 to St. Elmo.
THE COURT: Well —
MR. WITT: (Interposing) I beg —
THE COURT: (Interposing) He may state Ills

21 answer.
THE WITNESS: This would be determined by the

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I

I
>
()

u
10
i 1
12
H
1 V
I *.
I()
i:
18

19
20
21

22

2, !

24

2!i

Holden - Redirect 1322
length of tine the child had lived there.
BY MR. WITT;
Q Mr. Holden, in 1966 —  let’s take 1966. And,
this —  the record will show that this is the year in which 
the unitary zones were all in effect.

All right. Let’s shift to 19^1 —  1970-71. If 
a white child lived in the Trotter zone, where would he go to 
school?
A To Frank Trotter School.
Q All right. Now, if there was an exception to
that, how would it be made?
A Exception to that would be made by the child going
through all procedure for presenting and having considered 
an out-of-zone request which I believe has previously been 
explained. They would be —  go to the school principal, 
principal of the school to which they desire.

MR. WILLIAMS: I object to that as being repetition:
THE COURT: Yes.

BY MR. WITT;
Q All right. Now, in 1970-71, if the child was
black, would there be any difference?
A No, sir..
Q Is that true in the other elementary schools in
the system in the year 1-7 ; 71?

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Holden - Redirect 1323

A Yes, sir.
Q Was that true in 1969-70?
A Yes, sir.
Q Was that true in 1967-68?
A Yes, sir.
Q Was that true in 1966-67?
A Yes, sir.

HR. WITT: Mo further questions.
RBCAOSS EXAMINATION

BY HR. WILLIAMS:
Q Take Exhibit —  like to have the witness handed
Exhibit 99. Show as on Exhibit 99 where you list any pupil 
transfers of students exercising this type of option that you 
have under transfer provision 2(i) in Exhibit 98.
A What is Exhibit 98?
Q Exhibit 98 is 1970-71 transfer provision that
you said contained for the first time as a specific transfer
position this thing which permits a child -siding in an area 
which is rezoned to another school to complete his education 
in the school where he is attending.
A Yes, sir.
Q You said it's incorporated in vxiting for the
first time in 1970-71?
A Mr. Williams, I said it's incorporated in the

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U N I T E D  S T A T E S  DISTRICT C O U R T



I
I

()

8

<)
10
I I
12
l;t

i i
r.
It)

I 7
18

1<>
20

21
22

28

28

28

Holden - 3ecross 1324

ABC listing, read it from the policies in writing in 19o2 and
’ 6 3  .

Q Yes, air. But didn't we agree, Mr. Holden, that
in order to do that prior to 1970-71, that pupils did not 
have to go through the formal transfer procedure? It was just 
permitted, was it not?
A It —  we have no regular transfer forms on them.
Possible that they asked for listings to be submitted to 
principals. They did not go through the regular transfer 
channel and therefore we do not show tha# here. 
q To that extent, you would have to modify the
answers you just gave Mr. Witt with respect to the years 
back of 1970-71, wouldn’t you? You see. he was asking you 
whether they went through this formal transfer procedure 
in '68-69, '67-68, *66-67, and so forth.

They did not go through the formal transfer 
procedure in those years, did they?
A They went through the formal transfer procedures
as they are --as they are specified.
q All right. But, now, those who were informally
transferred under this provision that permitted them to 
complete their education in the school where they were when 
their school w a s rezoned did not go through this formal 
procedure, did they?

U N I T E D  S T A T E S  DISTRICT C O U R T



Holden - necrose - Redirect 1325
A I believe I previously testified that we do not
have an individual out-of-zone request form Vor these pupils, 

i Q Yes, sir.
All right.
MR. WILLIAMS: Thank you.
MR. WITT: Are you through?

REDIRECT EXAMINATION
g BY MR. WITT:
10 
I I

n

11

lo
17
18 
10
20

>•>

2.!
21

Q Mr. Holden, if you do not havu a fora, how do
you process the request?
A The out-of-zone request fora is the principal's —
has been provided for principals. We have placed in ex: i.. it. 
two of them. One of then in effect through ihe years 1969 
and *70 revised in effect during the current year. And, those 
forms hare on them a place for the principal to check the 
reasons, A through j, as for the years prior to ‘69 and '70.
And reasons A through M are the reasons, A tnrough M, for the 
years of '70 and *71. We did not therefore have complete 
records on this particular point.
Q Are you saying that there are some informal

transfers that took place since 1966 that are not in your 
records?
A I am saying, Mr. Witt, that we have — * I am
saying that we have endeavored to get a -record of every child

R I C H A R D  S M I T H  O F F I C I A L  C O U H T  R ( P O R I L H

U N I T E D  S T A T E S  DISTRICT C O U R T



Holden - Redirect 1326

i

6

K
i)
!()

II 

I l 
I " )

l < >

IK

19
'JO

J l

■v>

who was coning under these provisions. And, I an further 
stating chat not counted in here there have been tines I 
recall which it seems, *66 or ’67, those two years was a tine 
in which we asked for schools to send, sometime for sone 
purpose, a listing of any pupils who were attending their 
school under this old —  old clause. Th«*e were relatively 
few in those years, but because they were not under the ABC 
through J in those years, it does not appear in this record 
that’s been submitted.
Q So then, you are saying there are sone transfers
which you have no record?
A Yes, sir.
Q How do you know this?

HR. WILLIAMS: May it please the Court, it’s
obvious and I object to this because it’s repetitious. He has 
testified as to what provision was and how it operated.

THE COURT j For my understanding, your testimony 
is that at one time when the student elected to stay in the 
school of which he was in, although he had been rezoned, that 
no record was made of that, is that a correct statement of 
your testimony or —

2.1

Jl

THE WITNESS: (Interposing) To my knowledge.
Your Honor, this is a correct statement, that there was not 
total and complete records made.

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Holden - Redirect 1327
THE COURT: Okay.
MR. WITTi May it please the Court, it's my 

understanding that —  that in the d oi*«i on, Court of Appeals 
in 1967 —  ’66-67, the provision that Mr. Williams was 
referring to is no longer operative because it was only —  
the provision was only operative during the transition period 
which was completed by 1966-67.

THE COURT; Well, those are all matters that —
MR. WITT: (Interposing) The record would

indicate this.
THE COURT: Those are &11 matters which, if

they are relevant, of course, may be argued. Is there anything 
further from this witness that you wish to have in reference 
to the manner transfers were —

MR. WITT: (Interposing) I am attempting co
clarify confusion, because I am surprised. I didn't know this.

TxTF COURT: All right.
MR. WITT: And I was not aware of any informal

procedure for transfers. And, I don't believe Mr. Holden is 
saying that.

VP. WILLIAMS: May it please the Court, I object
to counsel attempting to coach his witness rod Mr. Witt is 
not surprised. He has just forgotten, because they had this 
provision. We raised the question about it in the Court of



Holden - Redirect 1328
Appeals, ard the Court of Appeals said, "Nell, it's just — " 

THE COURT: (Interposing) Self-liquidating.
MR. WILLIAMS: Self-liquidating. But the point

I am making here, they still have it again, A new —
THE COURT: (Interposing) All right.

BY MR. WITT:
Q Mr. Holden, I think I asked you whether or not —
how you know there were any informal transfer.

MR. WILLIAMS: I object to that, if Your Honor
please. He has —

THE COURT: (Interposing) Yes, you are croas-
- mining your own witness, are you not, Mr. Witt, in that 
respect?

MR. WITT: But, he testified that there were
informal transfers.

THE COURT: Well, if he is mistaken about that
matter, of ~*Hirse, you can cuviKi it by a witness who has 
knowledge to the contrary. But, I don't believe it would be 
appropriate to attempt to cross examine your own witness to 
get him to change his testimony.

MR. WITT: I am not attempting to get him to —
well -- 
BY MR. WITT:
Q nr. Holden —



Holden - Redirect 1329
THE COURT: (Interposing) If be is mistaken,

has knowledge of boj.n_ mistaken, of course, he can restate 
his answerbut if his answer remains th»» same, why, it would 
serve no purpose just to repeat those natters.
BY MR. WITT:
Q I understand you to say that —  that there are
informal transfers, is that correct, in 1966-67, not before 
that?
A I —  Mr. Witt, I think this line of questioning
started back when I was asked about '70-?l, then we went back
to *66 -67,
Q Yes.
A My thinking on that particular question was —
was a matter of referring to the specific things. Now, I cannot 
I cannot give exact testimony as to whether or not right now 
as to whether or not this would have been operative at this 
time or whether or not it would have been as it related to 
our desegregation, whether it would have bean self-liquidated 
at that time.

MR. WILLIAMS: I object to this, if Your Honor
please. It's an attempt to get his own witness to perjure 
himself on the stand. He has testified one way and Mr. Holden 
is not going to change that. He has testified, if Your Honor 
plear;e, that this provision has been in effect since 1961 and

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Holden - Redirect 1330
that —  *61 —  and that it was simply identified in writing 
for the first tine in 1970-71. That's the way I remember his 
testimony, and I  should hate to see him try to change that 
now.

THE COURT: All right.
BY MR. WITT:
Q Forget the regulations and just testify from
your own knowledge. Was any child that lived in the Trotter 
scone in iJ^l, black or white, transferred out of that zone 
for any reason based upon your knowledge?

MR. WILLIAMS. That's objected to as an attempt 
to cross examine his own witness.

THE COURT: That's becoming rather confusing,
Mr. Witt.

MR. WITT: I am confused. No further questions.
MR. WILLIAMS: No further questions.
THE COURT: All right.

(Witness excused.)
THE COURT: You have further witnesses now for

the defendants?
MR. WITT: Yes. Mrs. Hooper, please.

MRS. CHARLES M. HOOPER,
called as a witness at the instance of the defendants, being 
first duly sworn, was examined and testified as follows:

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DIRECT KXAKINATIOM
MR. WITT i

Q Would you please state your name?
A Mrs. Charles M. Hooper.
Q Mrs. Hooper, are you a member of the Chattanooga
iJoar>1 or Kducation?
A Yes, I an.
Q When did you becone a ac. .'t«r?
A March the 22nd, 1962.
Q Do you hare an official capacity with the
Chattanooga Board?
A Secretary.
Q What is your function? Would you describe your
function as a secretary?
A I sign all the minutes.
Q Do you actually prepare the minutes?
A I do not.
Q In your capacity as secretary, do you have
knowledge of the attendance of the various board members 
at the meetings?
A It's all a matter of record, the attendance is.
Q How has the — how many meetings a year does
the Board ordinarily have?
A I believe we will average 30 to 35 -neetings a year.

Mrs. Hooper - Direct 1331

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Mrs. Hooper - Direct. 1332

Q
A

Q
A

Q

How many o f f ic ia l  meetings?

These would be o f f ic ia l  meetings.

A l l  r ig h t .  Does —  do you have conference meetings? 

Yes, s i r .

What is  your normal plan w ith  rsgard to

conference meetings?

A To research our agenda and to  get background on

a l l  the questions.

q When are these nciTnally held?

A .cs. ay preceding the Wednesday lieeting.

q is  there a prepared agenda fo r these conference

i Lings?
A Yes, S ir .

Q What is  the compensation of the Chattanooga Board

of Education?

A Five  d o lla rs  per meeting up to  one hundred d o lla rs .

Q One hundre d d o lla rs  how frequently?

A A ye ar.

Q Do you know when Commissioner F ra n k lin  became a

member of the Board?

A A p r i l  the —  w ait a m inute. He attended h is

f i r s t  meeting A p r i l  —  May —  th a t would be a m atter of record 

in  the minutes.

Q Do you, Mrs. Hooper, th is  is  a l i t t l e  b i t  awkward,

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but you are w h ite , i*  th a t c o rre c t , you are white?

Mr*. Hooper - Direct 1333

A Tea, s i r .

Q I*  Mr. F ra n k lin  black?

A Yes, s i r .

Q A l l  r ig h t .  Who are the other members of the

Board? When was —  would you please state the , the cu rre n t

members of the Board?

A Mr. C a rte r Young.

Q Is  Mr. C arter Young white or black?

A White.

Q Do you know about when he was elected to the

Board, approximately?

A

member.

He was a member of the Board when I  became a

Q A l l  r ig h t .  How —

A (In te rp o sin g ) The re s t of them?

Q Yes, ma'am.

A Mr. Herman B a ttle .

Q Do you re c a ll  approximately how long he has been

on the board?

A I  believe about e ig h t years.

Q About how long?

A E ig h t.

Q A l l  r ig h t .  Is  Mr. B a ttle  black o r white?

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M rs. Hooper -  D ire c t 1334

A Black.

Q A l l  r ig h t ,  vfio are the other members?

A Mr. Jenkins.

Q How long has Mr. Jenkins been on the Board?

A About three years, I  b e lie v e . now, th a t would be

a matter of record.

Q A l l  r ig h t .  Is  Mr. Jenkins black o r white?

A Black.

Q A l l  r ig h t .  Who are the other ftsuaberB?

A Mr. P ro c to r.

Q Mr. Proctor black o r white?

A White.

Q Beg your pardon?

A White.

Q When did  Mr. Proctor become a neraber of the

21

School Board? 
A
Q 
A 
Q 
A 
Q 
A 
Q

February.

Of what year?

•71.
Who are the other members?

Mr. Mack Cook.

Cook black or ’•.bite?

Whit®.

When did  Mr. Cook become a member of the School

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133i

10

Mrs. Hooper -  D ire ct 

Board?

A *71.

Q Mrs. Hooper, do you r e c a ll  the events at Brainerd

High School th a t occurred in  the spring of 1970?

A Yes, s i r .

Q Would you describe the School Board's ro le  in

th is  circumstance in  your own language?

A W e ll, as to  meetings, t ry in g  to  resolve the

s itu a tio n  or —

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Q (In te rp o sin g ) Yes.

0 W ell, I  believe  we met every day fo r  a week and

then there were meetings a fte r  th a t, I  am sure; but I  believe 

every day fo r a week. I  be lieve  when we s ta rte d , we started 
one day at noon and met t i l l  m idnight th a t n ig h t. Then I  think 

the re s t of the time was mostly a l l  day.

Q A l l  r ig h t .  What was the occasion fo r  th is  kind of

a c t iv i t y  on the p a rt of the Board?

A W ell, an emergency.

Q Could you state the nature of th is  emergency as

you saw it.?

A

situation.
Well, I think it could be described near riot

21 Q

A
How did you become aware of this?
W e ll, from —  ju s t  newspaper, te le v is io n , besides

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being called in the first place.
Q Well, did you confer with any school individuals
with reference to the situation?
A Except in meetings.
Q Did you confer with Dr. Von Schaaf for example,
the principal of Brainerd High School, in meetings?
A He reported to us.
Q Did you receive first-hand knowledge from him
o f  t ^ e  circumstances and —

Mrs. Hooptr - Direct 1336

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A
Q

(Interposing) By film.
Did he tell you by it?
Yes.
Did you talk to any other individuals in order

to ascertain what was going on other th«n school people?
A Well, just the normal everyday contact with
people was —  practically the chief topic of conversation. 
Q All right. Did the Board meet with any other
officials in the course —
A (Interposing) Yes.
Q And who were these?
A City officials.
Q Would you name them, please?
A Comnissioner.
Q Mayor?

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A Hayor, yes, u-huh.
Q Would you tell the Court approximately the amount
of time that is required to perform your duties as a School 
Board member in a typical year?
A As to hours or?
Q Either.
A Well, we have many conferences at 4:00 o'clock in
the afternoon and recess —  I mean, finish the meeting at 
midnight, sometimes after. I would think ordinarily 9:00 or 
10;00 o'clock would be on the conference meeting. And, then 
the times that's spent in selecting Superintendents has been 
considerable. And, our regular meeting f:rom 3:30 to 7:00,
G 00 and 7s00 o'clock. Then time spent, regional meetings, 
state meetings, national meetings, and then we are expected 
as Board members to attend several civic functions.
Q When cl' yo normally receive the material?
A On Friday before Monday and that's quite a bit
of reading time.
Q During your time on the School Board, how many
superintendents have you worked with?
A This is fourth.
Q Who was the first one?
A Dr. Carmichael.
0 Who was his successor?

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Mrs. Hooper - Direct 1337

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Mrs. Hoooer - Direct 1338

A Doctor —
Q (Interposing) Who was Dr. Carmichael's successor?
A Dr. Martin.
Q Do you remember approximately how long Dr. Martin
served in that capacity?

MR. WILLIAMS: May it please the Court, I object
to this on the grounds that it's irrelevant and I believe it's 
probably already in the record.

THE COURT: What is the relevance, Mr. Witt?
MR. WITT: To describe the kind of responsibility

that the Board member performs u..d the individuals with whom 
they are working in their decision-making responsibilities.

MR. WILLIAMS: If the Court please, I respectfully
submit that's irrelevant to the issues here.

THE COURT: I am not sure I see the full relevance
of it. I can understand how you might wish to lay some 
foundation in that area, but I don't see it would be sufficient 
to go into any significant detail. The problem we are con­
fronted with here, of course, is the question of the Fourteenth 
Amendment.

CROSS EXAMINATION
BY MR. WILLIAMS:
Q Mrs. Hooper, the situation at Brainerd was that
the white children insisted —  the white personnel out there

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Mrs. Hooper - Cross 1339
insisted on having the Confederate flag as a school emblem 
and Dixie as the school song, didn't they?
A State your question again, please.
Q Hasn't the situation that you referred to at
Brainerd caused by the insistence of white children and other 
school personnel out there at Brainerd on using the rebel —  

the Confederate flag as a school symbol and Dixie, the song 
Dixie as a school song?
A Believe that was.
Q And the black children objected to that?
A Yes.
Q Did you as a School Board member consider that
in the process of integration, some provision ought to be 
made so that the sensitivities of black children would not 
be violated?
A well, the question had not come up at the time.
Q Well, when the question cams up, did you realize —
did you feel that black children ought not to be insulted in 
school by being required to attend the school with the 
Confederate flag as the school symbol?
A I believe we discussed that during our meetings
and during the time.
Q Well, now, what provision hud the Board made over
the years that have been there —  what provision had it made

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I Mrs. Hooper - Cross 1340
to insure that black children, when assigned to white schools, 
and that white children, when assigned to black schools, would 

> be treated in such a way as to afford harmonious racial 
' relations?
() A
7 Q

(fell, I believe we worked that out last spring. 
You worked it out after it got, as you say, to

fi a near riot?
'» A
lo up.

The question hadn't —  the Tuestion hadn't ccnte

11 

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16

Q Mrs. Hooper, why haven't the schools in Chattanooga
been integrated?
A What year are you referring to*'
Q I are referring to the past eight years since the
Court directed the integration of these schools, the past nine 
years.

IH 
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>*>

A I believe that the record will show that the
schools have been desegregated.
'J So, you feel that the —  that the permission of
children to attend schools according to the semes which you 
all left in effect constituted desegregation of the schools? 
A I think the schools would be considered

23

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desegregated.
0 You have not, as a Board member, have you, you
have not recognized any affirmative obligation to actually mix

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Mrs. Hooper - Cross 1341
th e  c h i l d r e n  in  th e  s c h o o l s ,  have you?

A w e l l ,  I  b e l ie v e  we h a v e . 1 b e l ie v e  th e  r e c o rd s

w i l l  show t h a t  th e y  —  t h a t  th e  s c h o o ls  j r e  m ixed .

Q N o tw ith stan d in g  th e  f a c t  t h a t  you have two a l l -

b la c k  h ig n  s c h o o ls ?

A W e ll, t h a t  would be th e  two s c h o o l s ,  t h a t  would

n o t be the sy ste m .

Q I  s e e .  S o , t h a t  th e  B oard  h as ta k e n  th e  p o s i t i o n

t h a t  i t s  d u ty  e x te n d e d  o n ly  t o  opening th e  s c h o o l so  t h a t  a  

b la c k  c h i l d  co u ld  a t te n d  a  w h ite  s c h o o l i f  he w anted t o  o r  

a  w h ite  c h i l d  co u ld  a t t e n d  a  b la c k  s c h o o l i f  he w anted to ?

A T h a t 's  r i g h t .

0  So th e n , th e  Board h as n o t  re c o g n iz e d  any

a f f i r m a t i v e  o b l i g a t i o n  t o  a c t u a l l y  i n t e g r a t e  th e  s c h o o l s ,  have  

th e y ?

A Well, I  th in k  t h a t  would be —
q ( in te r p o s in g )  You th in k  t h a t  would be th e  e x t e n t

o f  th e  i n t e g r a t i o n ?

A I th in k  t h a t  would a llo w  f o r  i t .

Q A ll  r i g h t .  And, so  th e n , your f e e l i n g  i s  t h a t

a l l  th e  board  i s  r e q u ire d  t o  do i s  sim p ly  a llo w  p e o p le  t o  

i n t e g r a t e  th e  s c h o o ls  by c h o ic e  o r  th e  in d iv id u a l  c h o ic e s ?

A Think t h a t  would work b e t t e r .

Q Y e s . And —

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Mrs. Hooper - Cross 1342
A (I n te r p o s in g )  D epending, I  th in k , th e  c h i l d  —

depending on where th e  c h i l d  l i v e s .

Q M rs. H ooper, a r e  you aw are o f  th e  te s tim o n y  o f

p r a c t i c a l l y  e v e ry  m ajo r s c h o o l o f f i c i a l  rn  y o u r own system  

a d m ittin g  t h a t  th e  C h attan o o g a  p u b lic  s c h o o ls  a r e  n o t  in t e g r a t e d ?

You s i t  h e re  and l i s t e n  t o  t h a t  te s tim o n y ?

A I  th in k  t h a t  would be a  m a tte r  o f  o p in io n .

Q T h a t 's  a m a t te r  o f  o p in io n ?  A ll  r i g h t .  Your

o p in io n  i s ,  I  ^ > .th er, t h a t  so  long a s  —  so  lo n g  a s  th e  b la ck  

c h i l d r e n  a r e  a d m itte d  t o  a  fo rm e rly  w h ite  s c h o o l o r  w h ite

c h i l d r e n  a r e  a d m itte d  t o  a fo rm e rly  b la ck  s c h o o l on th e  b a s is

o f  c h o ic e  t h a t  t h a t  c o n s t i t u t e s  i n t e g r a t i o n ?

A T h at would be s e g r e g a t i o n .

Q T h a t 's  th e  d e s e g r e g a tio n  w hich you a llu d e d  when

you s a id  you th o u g h t th e  C h attan o o g a  s c h o o l system  was 

d e s e g re g a te d ?

A I  th in k  s o .

Q You co n ced e i t ' s  n o t i n t e g r a t e d ,  d o n 't  you?

A T h at would be a  m a tte r  o f  o p in io n .

Q I  s e e .  H e l l ,  what i s  yo u r o p in io n  ab o u t t h a t ?

What i s  your o p in io n  ab o u t i n t e g r a t i o n ?  What d o es i t  

c o n s t i t u t e ?

A W e ll, I  th inX  t h a t ' s  when ^ec-ple come to g e th e r

w ith  common i n t e r e s t s ,  common p u rp o se .

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Mrs. Hooper - Cross 1343

Q 1 s e e .

A L ik e th in k in g .

Q I s e e .  W e ll , now, you co n ced e t h a t  when you

became a Board member o f  —  th e  s c h o o ls  w r e  s e g r e g a te d  by 

r u le  o f  th e  B o a rd , w eren ’ t  th e y , in  1 9 6 2 ?

A Y e s .

Q A ll  r i g h t .  Now, th e n , do you l ik e w is e  co n ced e

t h a t  th e  o n ly  i n t e g r a t i o n  t h a t  h as o c c u rre d  s in c e  th en  has been 

th e  m inim al i n t e g r a t i o n  t h a t  o c c u r re d  by v i r t u e  o f  some s o r t  

o f a d o p tin g  th e  same d u a l zon es t h a t  you had on th e  b a s is  o f  

th e  individual sch o o l and opening th e  h igh  s c h o o ls  on freedom  

o f  c h o ic e  b a s is ?

A W e ll, th e  p eo p le  d eterm in e  where th e  zon es a r e ,

i f  t h a t ' s  -—

Q ( I n te r p o s in g )  You co n ced e  th a t  t h a t  i s  t r u e ?

S u b je c t  t o  your s ta te m e n t t h a t  th e  p eo p le  d e te rm in e  where

th e y  a r e ?

A T h a t 's  r i g h t .

Q Y e s . Now, t o  your know ledge, have p re v io u s

sch o o l l e a d e r s ,  o t h e r  B oard members on th e  C h attan o o g a  S ch o ol 

Board h eld  view s s i m i l a r  t o  y o u rs  in  th e s e  r e s p e c t s ?

A I  b e l ie v e  y o u 'd  have t o  ask  f o r  t h e i r  own p erso n a]

o p in io n .

Q As a  m a tte r  o f  f a c t ,  th o u g h , in  th e  —  in  term s

h  C H A H l ,  S M  '  ) I H l  » L  f ' O U R ’  r x l M  

. * i T t t >  - j T ^ g s  i j ' b T u n  i  ,  o i , h i



1 Mrs. Hooper - Cross 1344

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o f th e  a c t i o n  o f  th e  B o a rd , would you —  would you o r  n o t say  

t h a t  Board p o l ic y  has fo llo w e d  p r e t t y  much th e  c o n c e p ts  t h a t  

you have e x p re s s e d ?

A W e ll, t h a t  th e  s tu d e n ts  l i v e  in  th e  zone and go

t o  s ch o o l in  th e  zone where th e y  l i v e ?

Q Y e s .

A And t h a t ' s  b eca u se  th e y  l i v e  t h e r e .

Q Y e s .

And t h a t  th e r e  would be no d r a s t i c  ch an g es o f  th e  

zones t o  a b o lis h  a c t u a l  s e g r e g a tio n ?

A W e ll, th e  zones a r e  d eterm in ed  by th e  c a p a c i t y

o f  th e  s c h o o l .

0 Y e s . So t h a t  what you a r e  sa y in g  i s  t h a t  you

f e l t  and th e  Board f e l t  t h a t  s c h o o l d e s e g r e g a t io n  would be

acco m p lish ed  sim ply by e s t a b l i s h i n g  zones b ased  on th e  c a p a c i t y  

o f  th e  sch o o l - -  s c h o o ls  and th e  p la c e  wher th e  p eo p le  w ere  

th en ?

l!l

Q
c o r r e c t ?

A
Q

I would - -  t h a t ' s  w here you g e t  yo u r s tu d e n ts .  

Y e s . W e ll , th e  answ er th e n  i s  y e s ,  i s  t h a t

Y e s .

A ll  r i g h t .  And, t h a t  would be w ith o u t re g a rd  t o

i ! r a c e ?
I!i; A The zon es a r e  e s t a b l i s h e d  w ith o u t re g a rd  t o  r a c e .
Ij

M. L H A H O  SA* ' A L - O l  R '  i O . I H l

l / N ' T H  - >TA t



Q Yes. And, so then, in estallishing those zones,
no effort was made to redraw those zone lines so as to mix 
the children in the schools?

MR. WITT: May it please the Court, we have
offered to stipulate that race has not been «t part of any 
decision since 1966 except for the basis of faculty assignment. 
BY MR. WILLIAMS:
Q All right. All right. Mrs. Hooper, would it be
fair to say that the Board of Education has been making the 
decisions which directly affect integration?
A Repeat your question, please.

Mrs. Hooper - Cross 1345

i ■ ; II Q Who has been making the decisions which directly
i i ij affect integration?

A The Board.
Q All right. And, was it the Board who decided
to continue with the present school zones anc freedom of 

is choice for high school students?
A Yes.
Q And it was the Board that decided to adopt the
plain for faculty to be integrated by choice and as vacancies 
occurred?
A Yes.
Q All right. And, that was -- and this was even
though these policies were known to be ineffective in bringing

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about integration?
A I don't know that it was not ineffective.
Q Well, of course, when you say you don't know it
was not ineffective, what you have in mind is your own concept 
of desegregation as being kind of the neutral thing, permit 
people to choose?
A Think other tilings have influenced.
Q Yes. What I am saying i3 your concept of the
desegregation-integration process is to permit people to choose 
integration?
A That is only in the high schooln.
Q Ma'am?
A That is only in the high schools.
Q Yes. Well, all right. But, even insofar as
the elementary and junior high schools were concerned, that 
was based on the concept of neighborhood schools, wasn't it?
A Yes.

Mrs. Hooper - Cross 1346

Q
A
Q
A

Q

Where the people lived?
That's right.
And people choose where they live, too?
That's right.
And so that was based in effect on people choosing

also, wasn't it?
A That's right.

■» I M i



Q And, you did not —  of course, you knew that
people -- that racial segregation by residence existed in 
Chattanooga, didn't you?
A Yes.
Q And, so, then, you were aware that the adoption
of that concept of zoning the schools in compact zones around 
the individual school would in effect result in continued

Mrs. Hooper - Cross li47

We have no authority over whare people live.
But, you do have authority in zoning the schools,

segregation?
A

11 0
don 11 you ?
A That's right.

11 q And the Board voluntarily selected a method of
zoning which resulted in continued segregation in the schools 
for the most part, didn't it?
A Well, it was a result of where people live.
Q But, the Board selected that concept of where
the people lived as being its policy, didn't it? 

jo | A That's right.
Q And when it selected that, it knew that the
people were already segregated?
A No, they have not been.
0 Have not been what?
A Segregated.

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11

Mrs. Hooper - Cross 1340
q Well, the board knew that people —  that black
people and white people lived generally in segregated residential 
areas in Chattanooga?
A I do not live in a segregated area.
q But generally, you have seen the nap, haven’t youl
A Yes.
q Mr. Ravin introduced, you don't deny that racial
segregation by residence is substantially the rule in Chatta­

nooga , do you?
A Well, that’s whore the people live.
q Yes, all right. And, the Board —  so, when you
say that’s where the people live, you concede that for the most, 
part they are segregated residentially, aren't they?
A I don’t
q (Interposing) They live —  the black people

A
live together and the white people live together, don't they?
A Not all the time.
q For the most part, they do?
A I'd say for the most part.
q Yes. And, so, and when the Board selected this
concept of zoning the schools on that concept, it knew that, 
didn't it?
A The schools have always been zoned elementary
schools and junior highs.

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Mrs. Hooper - Cross 1349

Q As a matter of fact, the school;; were built in
the center of these residential areas, weren't they?
A That's right.
Q And when they were built then, they were built
as segregated schools, weren't they?
A Originally, yes.
0 Yes.
A Yes.
0 Now, would you explain to the Court how in effect
the Board conceived that it would integrate the schools, to 
continue the same zones that existed when the schools were 
built in presently existing racial concentrations as segregatecj
schools?
A But, the people —  the zones have changed because !
the people have changed.
Q Well, but the people —  but the people are still
living on a segregated basis as you have jutt conceded?
A Not all the time.
Q But, most -- for the most part, you have conceded
that? You are not going to change that now, are you?
A I said the people lived where the zones are
where the people live.
Q Yes. What you are saying is, Mrs. Hooper, let's
see if I am reading you right. What you are saying is that

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Mrs. Hooper - Cross 1350

notwithstanding that the Board knew that the schools were built 
as segregated schools in the heart of racial concentrations, 
that the Foard nevertheless when it decided to desegregate the 
schools, adopted these same zones because It felt that zones 
are to put the children in the schools where they live, is 
that correct?
A Well, the people live in the zones and attend the
schools where they live in the zone.
Q All right. And so then, the Board decided to do
that notwithstanding its knowledge that the schools were built 
as segregated schools in those same zones, didn't they?
A The people have changed, not the zones.
Q Well, have the people changed? Have the people
changed in the zone for the Bell School?
A I don't believe so.
Q It started out as a black school and it's still

a
A (Interposing) Because the people still live
there.

Q Yes. So, and, has St. Elmo ever been a black
school? was it built as a black school or as a white?
A Not originally
Q It was built as a white school?
A Yes.

4 1  C. O  U H I ■ <» . o  n  I I

> •.' I T k. I • •> in ST H u  T < Ol'P'



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Q So, the people in that zone haven’t changed,
they are still white?
A St. Elmo is not all white.
Q Yes, but it’s substantially all white, predominantjl
white?
A Maybe so.
Q All right. And, Clifton Hills wasn't built as
a black school?
A Not originally.
Q I am not going over all these schools. All I
simply want to point out to you is that you have to concede, 
do you not, that for the most part the schools were built as 
either black or white schools?
A Originally.
q Yes. And, for the —  in 1962, '63, '64, when
your desegregation plan went into effect, they remained 
substantially that way, didn't they, with a few exceptions?
A I think.
q With the exception of a few schools like in the
Avondale area and the Hardy area where blacks have been moved 
out? Substantially all of the rest of the schools have remained 

|| substantially the same way they were when they were under the
segre --
A (Interposing) Sunnyside is not the same.

Mrs. Hooper - Cross 1351

awi s m ’ h . o n  iAl c o u r t  r e p o r t e r

t N - r r n  s r * r t 3  d i s t r i c t  c o u r t



Mrs. Hooper - Cross 1352
Missionary Ridge is not the same.
Q Well, they are not the »m m e in that they have
a few black children in them now?
A Because the people live there,,
0 Yes. Well, the people had bo move there in order
to integrate those schools, didn't they?
A Yes.
Q So that what —  so the plan of integration which
the Board adopted was one which in effect placed the iurden of 
integration on the people moving their residences, wasn't it?
A If they wanted to sore.
0 Yes. And if they didn't want to save and they
were in a school which had been placed in a segregated area, 
then that school remained segregated, didn’t it?
A Yes.
Q Has the Board adopted any policy at all with
regard to the location of schools so as to integrate those 
schools?
A Haven't built any schools recently.

Q Now, the Board —  well, you reouilt Clifton School
didn't you?
A Replaced.
Q Clifton Hills?
A Replaced.

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22

23

21
28

q That school could have been moved to a nee
location, couldn't it?
A Well, that would take sons study on that, 1 would
think, and the fact that the property was available.
Q But, the Board didn't study that, did it? It
just decided to rebuild the school right there in the sane
location?
A Replace the school.
q To serve those sane people in that sasw community?
A That's right.
q You built Piney Woods School, didn't you?
A Yes.

Mrs. Hooper - Cross 1353

Q
A

That was a brand new school, wasn't it? 
Yes.

q You located that in the heart of the black
community,, didn’t you?
A That's where the students were.
q Yes. Well, the Board —  so then the Board had
not adopted any policy which would look toward locating 
schools as to integrate schools, has it?
A Well, I think it's been the policy to build the
school where the students are. 
q Please answer the specific question. The Board ha*
not adopted a policy to locate schools so as to integrate those

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1354Mrs. Hooper - Cross
schools, has it, to locate the* in such a place affirmatively 
as to provide a racial Mixture in the schools?
A I don't think that would guarantee it.
Q Well, the Board has had no such policy, has it?
A The policy is to locate —  the present policy ie
to locate the school where the students aro. 
q on the policy the Board has had that you know
about, isn't it?
A Yes.
Q And that does not include locating schools
affirmatively in such a fashion as to integrate the schools, 
does it?

Don't you have to concede that in view of Piney
Woods? *

A I don’t think that would guarantee keeping the
people there.
q Well, you are saying if the Board adopted a
policy to locate schools so as to integrate, that that wouldn't 
guarantee keeping them integrated, is that what you are 
saying?
A I think so.
Q at doT* 't answer my question. My question is,
has the Board or not adopted a policy so as to integrate the
school?

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A No.

MR. WILLIAMS: No question —  fu rth e r questions.

MR. W ITT: No fu rth e r questions.

(Witness excused.)

MR. W ITT: Could we here a uhort recess?

THE COURT: Tes.

Where do you stand on your proof? Does that 

complete your proof?

MR. W ITT: No, I  have two more witnesses.

MR. WILLIAMS: Kay i t  please Your Honor, we have

no notice of t h is .  We are e n tit le d  to  get th is  case disposed 

o f . Now, counsel has been ten days on proof on the p la in t i f f s '  

proof. I  mean, defendants' p ro o f.

THE COURT: A l l  r ig h t .  Who are your next two

witnesses?
MR. W ITT: Dr. Von Schaaf end then I 'd  I k. to

c a ll  Dr. Janes Henry back to the stand.

THE COURT: W ill  they be of any length examination '

MR. W ITT: I  have about 20 questions w ith Dr.

Von Schaaf, and perhaps about 10.

THE COURT: A l l  r ig h t .  L e t ' 8 take a 10-minute

recess and then move along.

(Thereupon, a recess was taken.)

Mrs. Hooper - Cross 1355

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Von Schaof - Direct 13^o

BILLY L. VOB SCHAAF,
called as a witness at the instance of the defendants, being 
first duly sworn, was examined and testified as follows:

BY MR. WITT:
DIRECT EXAMINATION

Q Would you please state your name and occupation?
A Billy L. Von Schaaf, principal, Brainerd High
School.
Q When did you first become principal of Brainerd
High School?
A January 17th of last year.
0 How many students, approximately, are there at
Brainerd High School?
A Vie have enrollment of 1,340, about 1,258, I think.
Q Of what percentage —  what is the racial proposi-
tion of your high school?
A Vie have approximately 170 black students and
remainder are white, about a little over 10 percent, probably.
Q
A

How many faculty members do you. have?

oh» 1 Lava a staff of 70. In actual U=«chs_x
positions, about 62 or 63 counting the —
Q
your staff? 
A

(Interposing) What is the racial ccsq^osition of 

We are integrated. I tell you you don't pay

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Von Schaaf - Direct. 1357
much attention to this factor until someone makes me think 
about it. But, we have approximately 8.

MR. WILLIAMS: Isn't that a matter of record?
THE WITNESS: Ten black staff members.

BY MR. WITT;
Q Eighteen?
A Eight.
Q Eight.
A I think we have the highest blade ratio of any
school in the system on high school level.
Q All right. Do you —  are any oi your administra­
tion group black?
A Yes, I have an assistant principal. I also have
an administrative assistant in the office of CLUE.
Q During the spring of 1970, was the —  was there
ever any disruption of the educational process because of 
conflict between black and white?
A Yes.
Q Would you describe this briefly?
A Well, the conflict seemed to arise after a period
of time which really was before I took office as the principal. 
Hinged upon the school symbols, and I think as much as the 
school symbols, upon the social climate is concerned.
Q All right. To what degree was the educational

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Von Schaaf - Direct 1359
process disrupted ‘luring this period?
A It was severely disrupted. We missed several
days of school and other days, the tension was so high that 
we did have a disrupted program.
Q Do you recall the number of days or approximate
number of days that the school was closed?
A Tried to forget then, but l*ut se see if 1 can
recall precisely. We were out on three different occasions 
and other times, on partial occasions. I think that we had 
approximately five to seven days that we were due to make up 
at the end of the year due to dismissal.
Q Was it ever necessary to call for the polios
to come to the campus?
A Yes, it was.
q Uow many times did this a .  an?
A Oh, two occasions, three occasions.
Q Uow many police were an campus?
A It varied. In some of the instances we had aa
few as four or five and others we had as high as thirty. Some 
times I think we had almost the entire police force. In fact, 
the City was —  police force was utilized primarily for that 
particular action going on that day.
0  Was the fire department ever necessary?
A The fire department was called. It waa never

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Von Schaaf - Direct 1359
involved in any of the activities.
0 When did this conflict occur, what month?
A April and May, primarily, was the focus of the
greatest difficulty.
Q Did you maintain police on the campus after?
A After the last —  well, as a matter of fact, from
the first closing we had a number of policemen on the rrampin 
continuously.
Q Hava you been able to solve the problems that
caused this situation?
A Seme of the problems have been eliminated, but I
am not for certain that all of the problems have been eliminated 
fran the situation.
Q Is there any substantial tension and conflict on
the campus now?
A There has been a rising tension over the selection
of cheerleaders this past two or three weeks.
Q Is there any evidence that the controversies are
being recreated?
A Not any overt evidence that I cin take into
consideration except probably an expression of dissatisfaction 
over previous methods of selecting cheerleaders, sene of the 
practices that have , receded in years
Q Have there been any instances of the destruction

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Von Schaaf - Direct 1360
of property of black students?
A Yes.

MR. WILLIAMS; Of coarse, if Your Honor please,
I an objecting to this, but I —  4 there's a serious question 
about the relevancy of all of this.

THE COURT: well, let's «ove along, please.
BY HR. WITT:
Q If in the next year the faculty was to he changed
to a 67 —  57 percent white, 43 percent black ratio, would 
this create any problems for you?

A A Yes, sir, I think it would.
q  would they be of a minor or substantial nature?

MR. WILLIAMS: I object to that as calling for a
conclusion.

THE COURT: Yea.
BY MR. WITT:
q If this change were directed, were this require —
what kind of action would this require on your pert on your 
judgment and based upon your experience as a principal?
A I think community acceptance would be the biggest
category.

MR. WILLIAMS: I object to that, if Your Honor
please. That's inadmissible.

THE COURT: Well —

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Von Schaaf - Direct. 1361

1
1

7

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if

10

11
12 
12

THE WITNESSI (Interposing) Of course —
THE COURTt (Interposing) That is, of course, 

the cases have held that community opposition cannot be the 
basis upon which the decisions are made in this area. But, 
he may state his answer to the question.

THE WITNESS: I feel that in this capacity, of
course, you operate on the basis of community support or you 
do not have community support. And, it*s very axliioult 
administratively to operate without cos—unity support. Even 
in the lessening of support this year, it’s bean very difficult 
to operate.

MR. WITT: Mo further questions.
it

BY MR. WILLIAMS:
CROSS EXAMINATION

hi

18
19
20

2:1
2 4

q Doctor, the controversy about the school symbols
arose by virtue of the objection of black students to the 
use of the Confederate flag as a school symbol and Dixie as 
the school song, did it not?
A That was the controversy.
q All right. And, I take it that the —  that you
are now taking measures to recognise the sensitivies of blacks 
as well as whites in your SOhOOl» ere you not?
A Yes.
Q And, such matters as that can be resolved without

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Von Schaaf - Cross 1362
difficulty if appropri ta administrative attention is paid to 
natters like that, can't —
A (Interposing) Hot without difficulty.
Q Well, they can be resolved, though?
A Well, it's questionable of whether it's totally
resolved at this tins or not. This is the thing I live with 
daily.
Q Why, do you still have the Confederate flag as
your school symbol?
A Ho, we do not have it as the school symbol, but
we still have a lot of people that have sympathy for the 
symbol.
Q I see. You don't intend to predict the progress
of the school system on catering to people who want to use the 
‘T o n : <! rate flag as a symbol, do you?
A Ho, I don't predicate progress of the school systea
on this basis. However, I would say that social aspect of 
school life was as much involved as the symbols were in this 
case.
Q Are schools provided —  to provide social life
for people or to educate children?
A I believe that we consider their social aspect
part of education.
Q I see. Are you committed to the concept of equal

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! Von Schaaf - Cross 1363

educational opportunity?
A Yes/ X an.

1 Q All right. And, as being ccumaitted to that, do
you recognize that it is harmful to black children just as it

" is to white children to be subjected to attitudes which, such 
as those events by the Confederate flag a:.0 file song Dixie 
which tend to violate their sense of their heritage?

' A Yes, I an sensitive to this factor.
0 q Are you at least as sensitive to that as you are
1 to sensitivities of those who want —  who want to have the

is
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18
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Confederate flag —
A (Interposing) I hope that I n  equally as
sensitive to each other.
0 Then, these probl<ms can be worked out. can't they?

A With difficulty. we are laboring under it. I am
not sure it’s totally expired at this tine.
q You are not proposing that the problem that you
had out at Brainerd be used as a reason for not abolishing 
segregation in the school system, are you?
A Ho, I an sayInf that desegregation at nost is
a difficult process.
Q Yes.
A Administratively a very difficult process.
0 That's all you are saying?

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Von Schaaf - Cross 1364
A Tea, I am saying this.
Q If a black —  j.£ a black principal were assigned
to Brainerd, do you think that he might be able to work out 
some of the problems that they had, that you have mentioned?
A i have a black assistant who's been very —  most
helpful, but I think probably the administrator in either case 
is going to have a difficult time with desegregation.
Q So that regardless of how many black teachers are
assigned or how many white teachers are assigned, integration 
just presents a problem, doesn't it?
A Integration does present a problem.
Q And, it's a problem which, don't you believe, with
your commitment to the concept of equal educational opportunity 
that can be resolved?
A Yes, it can be resolved, but it will be difficult.
Q Yes. All right. So then, the difficulty has to
be expected and prepared for, doesn't it?
A Much to my sad dismay.
0 And, it —  do you agree —  do you agree with the
educational doctrine that the position —  that a School Board
which t.L,'or! a strong and firm position has a better chance in 
the interest of integration, has a better chance of working 
out those pr obi emus?
A I cannot judge for the School Board. I can only

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not)Von S ch a a f -  C ro ss  

ju dge f o r  my in d iv id u a l  s i t u a t i o n .

Q B ased  on y o u r in d iv id u a l  s i t u a t i o n ,  s t a t e  w hether

o r  n o t  in  your o p in io n  th e  r e s o l u t i o n  o f  prob leiM  r e l a t e d  t o  

th e s e  n a t t e r s  you have m entioned —  th e  community a c c e p ta n c e  —  

t h a t  th e  r e s o l u t i o n  o f  th o s e  problem s i s  a c h ie v e d  b e t t e r  where 

a  firm  sta n d  i s  ta k e n  a d m in i s t r a t i v e l y ?

A Now, I  w i l l  s e e  i f  I  can  g e t  a l l  t h a t  to g e th e r

in  one an sw er.

F r a n k ly , in  o r d e r  t o  work e f f e c t i v e l y  in  a s c h o o l  

where i n t e g r a t i o n  i s  p r e s e n t ,  a  f irm  s ta n d  on p o l i c i e s  w ith in  

t h a t  a r e a  i s  n e c e s s a r y  f a r  an a d m in is t r a t o r  t o  work e f f i c i e n t l y

MR. WILLIAMS: Thank yo u .

MUR. WITT: I  have no f u r t h e r  q u e s t io n s .

MR. WILLIAMS: J u s t  ono —  t h a t ' s  a l l .

(W itn ess  e x c u s e d .)

MR. WITT: I 'd  l i k e  t o  r e c a l l  D r. Henry t o  th e

s t a n d .

DR. JAMES HENRY,

r e c a l l e d  as a w itn e s s  a t  th e  in s t a n c e  o i  th e  d e fe n d a n ts , h av in g  

been p r e v io u s ly  d u ly  sw orn , resum ed th e  s ta n d  and t e s t i f i e d  

f u r t h e r  as f o l lo w s :

DIRECT EXAMINATION

BY MR. WITT:
q D r. H enry , would you s t a t e  your u n d e rsta n d in g  o f

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Henry - Direct U»b
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the definition of the word "integration* as compared with 
’desegregation" in the City school systeal?
A Like to go first with desegregation. Mow, I have
always interpreted desegregation as the actual Movement of

i
bodies, whites and blacks, into the same schools. The integration 
is where blacks and whites will be in the classroom together and

I
perform successfully, educational process will go on.
Q in discharge of your responsibility as Super­
intendent, what do you consider to be the goal of the school 
system with reference to integration as compared with desegrega-| 
tion?

; s

i I

In

IK

MR. WILLIAMS: I object to that, if Tour Honor
please; first, because it*s repetitious and second because the 
goal should be set by the Board, not by the Superintendent. 
They are the people charged by law with the establishment.

THE COURT: I am not sure I understand your
question. Would you restate your question, please?

„ BY MR. WIIT:i — ---------
) Q In the discharge of your responsibility as
(| Superintendent, how do you reconcile the integration, the

desegregation, and what do you consider to be the goal -- your 
goal in that system in carrying out your responsibility as 
Superintendent?
A I feel my goal in interpretation of the policy

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Henry - Direct 1367
established by the Board is to maintain quality education while 
integration is taking place.
Q Do you assign a higher quality to the quality of
the education, higher value to the quality education or to 
integration, which?
A O' ality of education, I thins., should come first.
Q All right. Let's take an illustration and, again,
assuming the objective to be the establishment of the same 
ratio of faculty in every school as to black and shite as 
the ratio of the faculty black and white in the school system, 
and assuming this to be 57 percent, 43 percent, and directing 
your attention to Howard High School, how would you go about 
and what steps would you take to effect this change in the 
racial composition of the faculty at Howard?

MR. WILLIAMSt May it please the Court, that 
question is so long and involved that I forgot the first part 
of it while listening to the second part of it.

THE COURT: As I understand, be is asking how he
would desegregate the faculty at Howard.

THE WITNESS: The simplest way and, of course,
the easiest way is just simply —  any 12-year-old oould do, 
take a pencil and go down the line or draw them out of the 
hat and mix the bodies; but this would create, of course, many 
problems. I would not care to do it in this manner, although

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this would be easy as far as just Moving people around.
Considering the human and considering the effect 

they are going to have on an educational process in the class­
room, I would hope to go into, first, into research to see what 
has been done successfully in other places across the nation, 
looking for successful integration, to work vith the existing 
staff and the principal to see where the key people are, that 
how this vculd affect the quality and in the various class­
rooms .

I think it would be a long, detailed process of 
examination to do it in such a way that would not interfere 
with educational process or the quality of that educational 
process.
Q Can you be somewhat sors specific as to what
you mean, "successful integration*?
A well, I would say that in having —  and you are
speaking of facility at this time?
q Yes.
A Having people first who could operate in the
classroom with black students, people wno basically could 
understand the language, would feel at that were in a
sense dedicated to equality of opportunity so that they could

function in this classroom situation without antagonism, 
without Misunderstanding, and without actually interfering

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Henry - Direct 136B

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1369
I

i| Henry -  D ir e c t

w ith  w h at*s  going on in  t h a t  c la s s r o o m .

Q A ll  r i g h t .  What s t a p s ,  w hat s p e c i f i c  s te p s

i would you ta k e ?

<>

0
!()

A W e ll , i t ' s  a  n a t t e r  o f  ch e ck in g  w ith  th e  p r i n c i ­

p a l s  and a l l  th e  s c h o o l s , w orking th ro u gh  th e  p e rs o n n e l  

d i v i s i o n  and in te rv ie w in g  t e a c h e r s  and w orking w ith  a l l  s t a f f ,  

t r y in g  t o  a n t i c i p a t e , m aybe, in  th e  form  o f  in s tru m e n ts  and  

q u e s t io n n a ir e s  and r e s e a r c h  and a t t i t u d e s  o f  t e a c h e r s  and 

a  lo n g , d raw n -o u t p r o c e s s  o f  r e s e a r c h  in  e s t a b l i s h i n g  which

i i

H
i)
’()

one would be more s u c c e s s f u l ;  and lo o k in g  a t  th e  s t a f f s ,  

a g a in , a t  Howard High S c h o o l, and ta l k in g  w ith  th e  p r i n c i p a l  

und h i s  a r e a s  where he would e x p e c t  p ro b lem s. I t  would be a  

lo n g , d raw n -o u t p r o c e s s  i f  you a r e  a f t e r  s u c c e s s .  I f  you 

sim p ly  w ant t o  move th e  b o d ie s , t h i s  can  be a cco m p lish e d  w ith  

a  p e n c i l .  And, o f  c o u r s e ,  many o t h e r  f a c e t s  and a r e a s .  

q A ll  r i g h t .  J u s t  e x a c t l y  hew would you u se th e

p r i n c i p a l ?  What r e s p o n s i b i l i t y  would you p i e c e  upon a  

r iM c ip a l o f  any s c h o o l?  As in  yo u r exam p le , th e  p r i n c i p a l

o .r Howard, what w i l l  you e x p e c t  from  him?

A I would e x p e c t  him t o  be one o f  th e  m ajo r p eo p le

in  d e te rm in in g  where t o  p la c e  t e a c h e r s ,  what p o s i t i o n  and —

22 

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2r>

MR. WILLIAMS: ( I n te rp o s in g )  I  o b j e c t  t o  t h i s ,

b eca u se  tn e  B oard li.ts n o t p re s e n te d  t o  t h i s  C o u rt any p la n  

a t  a l l  f o r  th e  e f f e c t i v e  i n t e g r a t i o n  o f  f a c u l t y  and now he i s

I

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1370Henry - Direct
going into details about how he would do it if he had to do it, 
and that’s irrelevant.

THE COURT: Yes, aren't we getting ahead of our­
selves here, Mr. Witt? He is discussing now, a plan for 
desegregation of the faculty. Until we have a plan before us,
would it be helpful to discuss a plan?

MR. WITT: May it pleas* the Court, in the cross
examination of the defendant’s witnesses in a sense, most of the 
time, Mr. Williams in effect made them his witnesses when 
he exceeded the scope of the direct examination and in response 
to questions from witnesses for the defendant, there has been 
testimony to indicate that this is a simple process, there 
is nothing to it, and it’s this attempting to introduce into 
the record to indicate that this is an oversimplification.

We covered this area, I did not offer this 
intend to cover this area originally on direct examination.
Mr. Williams opened up this area when he was proving his 
case with my witnesses, attempting to do so.

THE COURT: Well, state your question, then.
Let’s move along. You are asking him how he would do it at 
Howard. What role the principal would play.

BY MR. WITT:
q Would you, t‘o; exa iple, In tue English department,
how would you go about deciding what teachers to move to another

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Henry - Direct 1371
school and what teachers to retain?
A Of course, wi'd have to look at all our staff,
all the English teachers in this system, and try to ascertain 
which ones could operate eost successfully at Howard and ask 
the principal at Howard and with our personnel and maybe bring 
in some consultants to look into the situation aa to what 
attributes or characteristics of people that would operate 
better in a situation like this.

Then, of course, what they are actually teaching 
and what their specializations within the English field —  

we have sewral courses —  various schools where they are 
offering many courses and specializing in various directions 
in the English department. And, does this exist at one school 
or another school? Have to take all these things into 
consideration before establishing —  placing staff members, 
not just simply a matter of moving bodies.
Q £>o you —  what about the fact of —  the stability
. u e acuity? Would you give this any consideration?
A Yes, we would probably look at the , .factors such
as age, longevity in position, along with the opinions of some 
of the faculty members. We could certainly ascertain that 
people, say, over ruxty or something like this may have 
difficulty la changing or adjusting to this situation under 
their age and more than that, we think how they could actually

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function in this situation —  in this position.
Of course, there are many things like this we 

have to take into consideration.
Q Would you give any consideration to the reaction
of teachers to this proposal?
A Yes, we'd have to. We'd think cwrice. If —  we
would staff with people who were willing first before we'd 
ever get to the other point of making people do it.
Q Why?
A If we possibly could, we think it would be
unfair to the students in this situation if <wanna with 
negative attitudes, especially racial attitudes, in the 
situation, we say it could be a ham. And, even though sosie 
of these people nay be affected in sum place, we try to put 
them in a position where they can utilise their talent to 
optimum amount. I think we'd have to look very closely at 
the situation.
q You refer to desire to stabilise the student
body in the school in your testimony. What about stabilisa­
tion of faculty in a school or in schools over a paries of 
time?
A I think this, of course, gives your continuity
to your program. We would be afraid in the midst of desegrega­
tion that you could possibly lose this. This continuity, I

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Henry - Direct 1373
feel, is very important.

MR. WILLIAMS; I object to all this speculation, 
if Tour Honor please.

THE COURT: Well, it does appear that this would
be more appropriate at the ties we are considering a plan 
rather than discussing general problems that are unrelated to 
any specific plan.

MR. WITT: Ho further questions.
CROSS EXAMINATION

BY MR. WILLIAMS:
Q Just one or two questions, is integration —  is
integration possible until after you m o v e the bodies? You 
have to have the bodies aired before you can have integration, 
don't you?
A Yes. But I think you can ac*ve too fast and
destroy, h a v e  counterpurpose —
Q (Interposing) of course. School Board has been
saying that for XI years, you can nova too fast. lou think 
11 years is too fast?
A It could possibly be with some people that I know
of.
0 Do you think that process of compliance with the
Constitution ought to wait until the desires of those particular 
people can be satisfied?

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Henry - Cross 1374
A Not to wait for those people, but if you went to
insure success, I think you'd heve to stove cere fully.
Q So thet, it's your view, then, thet we should
wait many years, if necessary, to appeasv the desires of those 
who oppose integration?
A No. I think —  what I really believe is that
what we are after is success.
Q Well —
A (Interposing) Above all in integration. And,
so far we haven't found a nedal for success. I am afraid that 
if you will allow me to go on, I'd like to express myself on 
this point.

Q Well, I am sure the Court will tillow you to go
on and explain yourself, if you desire.
A All right. I am so afraid that we need to study
very closely —
Q (Interposing) Well, now, I would object to your
fears, Dr. Henry. If you are stating facts, then —
A (Interposing) Well, the fact is that we have
experienced things in the Hardy —  in the Avondale areas. We 
have experienced resegregation and we don't want to have to 
move all the bodies and then simply not be able to integrate.
Q In other words, you are still talking about white
flight, aren't you?

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Henry - Cross 1375
A Hell, that alternative still exists with people.
In other words, if we had control of people, we can say, "You 
must go to school here. You east go to school there."

Fine, but we don't have that control.
Q All right. What do you define as success?
A Success is where people can operate in a class­
room together —
Q (Interposing) All right.
A (Continuing) —  successfully. The educational
process is not harmed.
0 Does your definition of successful integration
include insuring that those who are opposed to integration are 
satisfied that they have their views recognised?
A Hot necessarily so.
Q Hell, doesn't that necessarily follow from your
thought that you expresrto, waiting for years so that people 
would accept it?
A Oh, no, I think the time element is something
there over which we Lave no control.
Q All right. Dr. Henry, as you testified about
the difficulty of desegregated faculties, you were using 
Howard School as an example. Mould these difficulties be 
lessened if the Howard student body were to oe desegregated 
at the : arae time as faculty?

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A I th in k  you would h e re  a such  wore d i f f i c u l t  ta s k

i f  you d id  th e  s tu d e n t body and f a c u l t y  a t  th e  sente t i n e .

Q I f  you do th en  a t  th e  san e tim e?

A I  would nuch r a t h e r  have th e  f a c u l t y  f i r s t .

Q Have you e v e r  ta lk e d  w ith  anybody up in  N a s h v ille

where t h a t  was d o n e, ab o u t th e  d i f f i c u l t i e s  e n co u n te re d  in  

havin g m a jo r i ty  w h ite  f a c u l t y  and a l l  black, s ch o o l?

A No, I  h a v e n 't .

Q w o u ld n 't t h a t  as a  m a tte r  o f  f a c t  c r e a t e  g r e a t e r

d i f f i c u l t i e s ?

A No, n o t in  re a s o n in g , o f  c o u r s e .

Q You have n ev er had any e x p e r ie n c e  in  t h a t  r e g a r d ,

have you?

A W e ll, in  C h attan o oga High S ch o ol in  my own

s i t u a t i o n  I  was v e ry  p r iv i le g e d  t o  have some o u ts ta n d in g  

b la c k s  t h a t  came t o  me t o  work w ith  me t h e r e .

Q D id n 't  you need them when you —  in  c o n n e c tio n  —

w e r e n 't  th e y  u s e f u l  in  co n n e c tio n  w ith  th e  i n t e g r a t i o n  o f  

th e  s tu d e n t body?

A E x trem ely  u s e f u l .

Q Then t h a t  ten d s t o  su p p o rt th e  p r o p o s it io n  t h a t

i t  i s  useful t o  have both f a c u l t y  and s tu d e n t body in te g r a te d  

a t  th e  same t im e , your own e x p e r ie n c e ?

A Well, n o t in th e  m assiv e  num bers.

Henry - Cross 1376

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1377Henry - Cross 
Q Well —
A (Interposing) I an talk —
Q (Interposing) You haven't h&d any experience in

ssive nuabers?
Ho, I haven't had any experience in that.

Q So that you don't know what effect would be had
if 57 percent white teachers were assigned to Howard or River­
side with an all-black student body?
|A All I know the experiences we have had at Howard —

i i I mean at Hardy and Avondale.
1 ’ |Q Now, you mentioned that priority —  that your
?aain priority was quality education? 

ii A That’ 3 right.
"> £ You conceded earlier that the studies epitomised
!<> in the Coleman Report and further summarised in racial isolation, 
i: jthe report of the schools, in public schools, report published 
ik py the United States Commission on Civil Rights, indicated the 

(cessity of integration aa a means of affording equal educa­
tional opportunity?

Yes.
J O

2J P
education?

21 k
2.7 3

YOU conc e d e  that. d « » - t  you, inclad. ^  ^  quility

Yes; but there’s a time element involved.
All right.

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Henry - Cross 1378

20

21  

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A There is a time •least involved.
Q I see. In other words, whet you are saying is
that quality education should be postponed for black children 
and also for white children who are attending totally segregated 
schools pending the achievement of something that you call 
quality education that does not include —
A (Interposing) What I am saying is —
q  (Continuing) —  equal education.
A (Continuing) —  that without scorn strong basis of
understanding among people, among humane, that you can disrupt 
the process for everyone, and I don't want to sacrifice a 
generation of children.
0 Have a generation of children who have, including
the plaintif 's children here, who have gone all the way through 
school and been graduated from school under a segregated 
school system been sacrificed to some extent1!
A Yes.
q All right. So what you are saying is that having
sacrificed a generation of children, you want that another 
generation of children to be continued to be sacrificed pending 
an attempt to persuade the community to do right, that's what 
you are saying in substance, isn't it?
A No. What I am saying is that we have to move
under controls so that we can do this without the white people

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Henry - Cross 1379
leaving. What I an afraid is you are going right back to tha
sane thing that we have had originally which we don't want which i 
is re segregation. I want aose good strong foundations. To mix -j 
A (Interposing) Well, you have had 17 years to get
those foundations, haven't you?

IQ But, we have been covered up with ignorance. We
simply didn't know how to move.
Q For the past —  you mentioned the question of

j I

faculty and faculty is a part of this?
|

A Y e s .

I
Q That you are talking about. You mentioned that
you wanted to do these things with regard to faculty. You are 
going to spend another 486 million dollars of government money 
to try to convince white teachers that they ought to voluntarily 
teach in black schools, is that what you are talking about?
A No. But, what I am talking about is simply that
we are going to have to research, we are going to Lave to look 
into it, recycle and plan and work and svtr̂ ly this process will 
speed up.
Q What did you do with the 486 million dollars that
you accumulated of federal funds between the years of 1964 and 
1971 when you were telling the Federal Government that you were 
working on these very problems that you are talking about?
What did you do with that money?

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Henry - Cross 1380

i

(>

8

A Think this aouey has been used to a tremendous
advantage in that, as a system, the broad base of understanding 
that the black people and the shite people have in this city —  

I don’t think you run into the same thing you have in Memphis 
and Nashville. I don't think you have a —  four —  three 
I black members on the Board In Nashville or Menphis.

I think in our Central Office staff here, the

Ml

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I i 

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11)

18
19
20

21

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positions of leadership peopls have taken and throughout the 
community here I think that leads —  gains have been made other 
than just numbers. Think it's a quality of understanding among 
peoples that we are after here rather than just moving bodies

I
 around and destroying what we have got started here and what 
we are doing.

Q Wall, we have taken 16 years to get the quality
of understanding that you are talking about that you have 
accumulated with this half million dollars of government money. 
When are we going to start moving the bodies?
A Soon.
Q All right, sir. Preferably next March?
A well, that, I don’t know. I mean —

0 (Interposing) That's right, but you will at lsast2 5 concede that .having spent half a million dollars and taxing 
16 years we ought to be in pretty good sh*£pe to start moving 
the bodies, you have to concede thet?

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Henry - Cross 1381
A Senator Williams, I don't know. This is an area
in which if anyone had the answer, 1 am sure Judge Wilson 
would like to hear it right now.
Q So, actually what you are saying is that any
further speculation about teacher attitudes and about community 
attitudes is necessarily speculation, isn't it? Just have to 
guess about it for the most part, don't you?
A I still don't want to accept something that I
don't know will work, that will disrupt the educational 
process. Think the people will be extremely unhappy. 
q But, you don't know —  but you don't know that?
A I don't think anyone knows.
Q All right. And, you don't know to what extent
the educational process would be disrupted either, do you?
A Ho.
Q You say your priority is quality education?
A We are in a peculiar situation. Senator Williams,
here in Chattanooga in that the people of Chattanooga are 
paying extra money and expecting something extra for it.

0 Yea.
A The educational —  the responsibility for educa­
tion rests on the county or city system. We are paying more, 
the people in taxes, for something extra and they expect 
quality education. If we don't get it, very easily, our city

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fathers could vote us out and ve wouldn't even have a system.
Q People also expect compliance with the Constitu­
tion?
A That's true.
Q You wouldn't take a white child and best hie up,
would you?
A No.
Q You wouldn't do that, would you?
A No. It's an understanding of the law.
Q Don't you think —  you think 17 years is long
enough for the people to gather an understanding of the law?
A Well, no, because we just got an interpretation
April 24, so this is our problem. To me, I'd like to. Judge, 
if Your Honor —  if I nay get this, and I hate to see this 
Board really alnost condemned for an activity —  attitude —
Q (Interposing) Well, we are not condemning the
Board, Mr. Henry, at all, and we are not —  are you aware 
that when this suit was first filed that the School Board came 
in with the defense that it was elucidating the law to the 
people? It was in the process of elucidating?
A No.
Q That was in 1960, 11 years ago.
A (Witness moves head from side to side.)
Q Are you aware that the counsel for the School Board

H K  H A R O  S M I T H  O F F I C I A L  C O U H T  R E P O R T E R

Henry - Cross 1382

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Henry - Cross 1383
had been elucidating in this and the various superintendents 
that they have had have been elucidating to the public ever 
since?
A Well, all I know is how —
Q (Interposing) Are you aware of that?
A No.

MR. WILLIAMS: Okay. That's all.
THE WITNESS: But, Your Honor —  well, excuse me.
THE COURT; All right, anything further?
MR. WITT: I don't have any further questions

of Dr. Henry.
THE COURT: All right.

(Witness excused.)
MR. WITT: May it please the Court, Mr. Williams

indicated that I was attempting to get a witness to perjure 
himself.

THE COURT: Well —
MR. WITT: (Interposing) I would like for Dean

Holden to cooe back to the stand and the record will not be 
straight —  correct in its present condition, be my fault, 
will not be his.

MR. WILLIAMS: Please the Court, I object to that,
because I heard him during the recess over him g«iticulating 
and coughing and trying to get —  telling the witness what



to say, and I certainly object to this. This witness has 
been on the stand. Counsel has dragged this thing out and 
there is no —

THE COURTi (Interposing) Hell, if it's representec 
to the Court that Mr. Holden desires to change his testimony, 
yes; but if you are just going to go over the same matters 
that you have been over before, it would not be appropriate 
to recall him.

MR. MITT: I am not asking him to change his
testimony. His testimony, I believe, would clarify what I 
consider to be —

THE COURT: (Interposing) What do you say the

facts are?
MR. MITT: The facts are that the transfers that

took place that he is talking about are transfers where 
school rones were changed and the reason that they didn't 
that he doesn't have any record of this is because they were 
not considered transfers and no report waa made on them.

MR. WILLIAMS: I stipulate that.
THE COURT: That's the same thiug. Yes, very

well. That's I understood him to say that these were
transfers of which there were no records made.

MR. WITT: well, then, I don't understand,
because that's not what I understood that Mr. Williams said.

1384

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1385
THE COURT: All r i g h t ,  all r i g h t .  Doaa t h a t

coraplate th e  d e fe n d a n ts ' p ro o f?

MR. WITT: Yea, Your Honor.
THE COURT: All right. You may proceed with

the plaintiffs' proof.
Gentlemen, I thought we would proceed with this 

trial until 12:30 today. I have sane —  I an going to recess 
this trial from 12:30 to 1>30 and we will proceed somewhat 
longer before we take the noon recess.

MR. WILLIAMS: May it please the Court, could we
have a 2 - or 3-minute recess to set up some?

THE COURT: All right, a few minutes recess.
(T hereupon, a  r e c e s s  was t a k e n .)

MR. WILLIAMS: May it please the Court, before
beginning, I should like to request that all the defendants' 
answers to all interrogatories which the plaintiffs have filed 
beginning with those in 1967 down to those that were filed 
to and including those that were filed this year, wa should 
like to request to be received and treated as evidence in the 
case. I understand that that is necessary, not automatically 
evidence.

MR. WITT: May it please the Court, the same would
be true. We would request with regard to our interrogatories.

THE COURT: Very well. Allow all interrogatorlas



1386
which have been filed in this case to be considered as part 
of the trial record in your case, is that your request?

MR. WILLIAMS! Yes, my request is for ours to be 
and I have no objection to Mr. Witt’s request.

TKJE COORTi Mow, at some appropriate point, I 
should expect counsel to point out to the Court those responses 
which they consider relevant to our particular hearing at 
this time. I wouldn't want to have to go baak and re-read the 
entire record of this case from 1960 in order to discover 
what it is you consider to • >e relevant.

MR. WILLIAMS: May it please the Court, at the
moment, except for those documents which had been expressly B t. in evidence as exhibits, the only thing that I can 
think of is the answer to one of our interrogatories relating 
to pupil transportation, the amounts expended by the City of 
Chattanooga. I shall call that to the Court's attention.
I simply want to make mure that this is in the record. How­
ever, all of these answers so that in the event we want to 
make some argument later about some statistical matter, it 
will be in evidence.

THE COURT: It will be filed and be relied upon
to the extent that they are in some manner called to the 
attention of the Court.: • ■ ■ ■ « ■

MR. WILLIAMS: Yes, Court please. At this time,

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Keater - Direct 1387
I'd like to call Dr. Scott Keater.

DR. SCOTT KKSTER,
called as a witness at the instance of the plaintiff, being 
first duly sworn, was examined and testified as follows;

DIRECT EXAMINATION
BY MR. WILLIAMS:
Q State your naae, please.

THE COURT: Just a woment.
THE WITNESS: Soott W. Kester.

BY MR. WILLIAMS:
Q Your address?
A 630 Coral Way, Miawi, Plorida.
Q What is your occupation?
A I aw assistant professor of education. Department
of Educational Psychology, at the University of Miami in 
Coral Gables, Florida.
Q State, if you will, your educational and profes­
sional qualifications.
A I received bachelor of arts degree in 1959 in
speech and psychology from Oklahoma Baptist University at 
Shawnee, Oklahoma; waster of education ^  1 9 6 6

educational psychology with allied area in school administra­
tion curriculum from the University of Oklahoma, Morwan, 
Oklahoma, and Ph.D in educational psychology in 1969 from the

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Kester - Direct 1388
University of Oklahoma, Norman, Oklahoma.

I have attended additional special institutes at 
the Southwest Center for Human Delations and School Desegrega­
tion and Institute in Computer Science at University of 
Oklahoma.

Experience-wise, I have bees a teacher in the 
public schools in Oklahoma City and Norman, Oklahoma, for 
four years, teaching at the high school level, junior high 
school level, in speech, psychology, sociology, hatin and 
English. 1 also did substitute teaching, elementary schools.

I have been a college teacher for four years, 
two years at Oklahoma Baptist University in the Department of 
Education and Psychology and two years at the University of 
Miami in tho Department of Educational Psychology. I have 
been a school administrator for one year, the University of 
Oklahoma's laboratory secondary school, grades ten through 
twelve. I was principal of the school.

I have been engaged in research and evaluation.
1 was an administrator in Title III program for the Norman 
public schools, and I was an evaluator for project HEAL, 
which was a leadership institute and teacher corps during 
the summer of 1969.

I have also been an educational consultant for 
a variety of concerns. I was consultant for the Lawyers

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! Raster - Direct 1389

Constitutional Defense Prnm lttee and Justice Department in 
their case in Concordia Parrish, Shreveport, Louisiana. I was 

v an expert witness and consultant for —  for Lawyers Constitu­
tional Defense Committee in the Washington Parrish case, 

o case held in New Orleans, Louisiana. I have been a special 
consultant to the Southwest human Relatione Center, sole 

h desegregation special consultant to the Title IV center, 
i desegregation center, at the University of Miami, Coral Gables.

I have been a special consultant or consultant in special 
schools in Dade County, public school system in the areas of 
learning climate and human relations, and I have been asked 
by Division Director of Educational Personnel Development 
Division of the United States Office of Education, Dr. Tom 
Bigelow, to serve as consultant this next year in his office.
I haven't taken an oath of office in that particular consultant- 
ship yet.

Then in addition to that, I am an instructor in 
a special Title IV program we have for developing leadership 
for multi-cultural schools in the area of educational

psychology related subjects, such as educational leadership
22 T have » variety of professional memberships
2 ( among them most important are, I am a member of the American 
n psychological Association, the American Association for 
,r Educational Research, Southwestern Psychological Association,

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Kester - Direct 1390
Southeastern Psychological Association; and 1 had past 
memberships in the National Association of Secondary School 
Principals, but since I am not an acting principal, 1 haven’t 
kept up with the dues.

The American Personnel Guidance Association, 
National Education Association. Oh, I am also an active 
member in -hi Delta Kappa, which is an educational leadership 
fraternity.

1  have had a variety of papers or printed a 
variety of papers at conventions, Southwestern Psychological 
Association1s convention, special presentations for Triple T - 
Q (Interposing) Let me ask you this, you're guilty
of nunorous papers and oublications and we have them listed 
in the vita which you have prepared?
A That's right.
Q And I believe you are also —  you also saw
military service?

i \

A Oh, yes. I was in both the Air National Guard,
Army National Guard, and active United States Army in 
enlisted and commissioned rank. I served in active duty and 
in the Army National Guard as everything company

commander to staff positions on the nattalxor. brigade and 
division level, and I was aide to commander general of the 
Forty-fifth Infantry Division.

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Kester - Direct 1391

11

11

20

21 

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Q Have you listed all that in somewhat greater
detail —  veil, I have already asked that. You like to 
introduce this vita, if Your Honor please.

THE COURT: Exhibit 103.
♦(Thereupon, the document referred 

to above vas marked Exhibit Mo.
103 for identification, witness 
Mr. Kester, and received in
evidence.)

BY MR. WILLIAMS:
Q Would you say that by reason of your professional
training, educational and professional training and experience 
as indicated —  just indicated by you that you are competent 
to define an integrated school system?
A Very definitely.
Q Will you do so?
A Yes. In my opinion, an integrated school system
1; 0 5i® which has ' liminated racial isolation and discrimina­
tion in both its faculty and student bodies to the extent 
that the racial cosiposition of the individual classroom unit, 
not only of the school, but individual classroom unit approxi­
mates the racial composition of the school system itself.
Q Why?
A Well, my primary concern in terms of desegregation,
integration, is the realisation of equal educational op­
portunity. And, the massive research that•s been done.

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17

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Renter - Direct 1392
including the Coleman Report, "Racial isolation in the Public 
Schools,• and extrapolations therefron and the analysis of 
data continually confined that an integrated system particu-

r
larly of the kind I defined, that is including racial cos«>osi- 
tiona equivalent to those in the system in the individual 
classroom unit, is better quality education than educating 
in an essentially segregated system.

As I say, this data is continually confined 
time and time and time again. You see., 'we have —  we have 
some real problems »Aen we educate in a segregated system. 
Segregation itself not only hurts the minority which has 
been pointed out time and time and time again —  not only hurts 
the minority individual or the minority g r o u p , but it's 
devastating also in tine to the majority g r o u p . One might 
say —  well, now, how can that be? I can see readily how that 
the minority person who is discriminated against and segregated 
and isolated in society gets the short of the straw —  

the short end of the deal; but what about the person who is 
on top? Psychologically, sociologically, he gets the short 
end of the deal, too.

In the first place, the individual who is racially 
segregated and who advocates racial segregation has a basically 
psychological maladjustment to start with. Now, this is 
a —  just my opinion, but the opinion of a well-known

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Raster - Direct 1393
psychologist such as Gordon Allport, Kenneth Clarks —  these 
people advocate the problems involved in being in the majority 
group in a segregated organisational society, institution.
The individual experiences an increasing or hardening of his 

:J sensitivities to social Issues, social justice, so that he 
is unable to perceive social injustice when it occurs. Clarke 
reiterates this time and time and time again. The individual 
who is a majority group in a segregated situation has 

| increase in hostility. Psychologists such as Deutch and
'! Che in, well-known personnel therapists, advocate that this
||j takes place; not only are hostilities, you see, created in the 
!j minority grou , but also in the majority group so that the 
longer they remain segregated, the more adverse they became.

In other words, if we had a hardaning of social 
sensitivity, if we have an increase in hostilities by remaining 
segregated, then the type of integrated system that I advocate 
is one of the surest ways to bring about a realization of 
educational or the equality of educational opportunity.

MR. WITT: May it please the Court, I object to
this on the basis that it's irrelevant. It's very interesting 
and I an. enjoying listening to it, but we are talking about 
a legal responsibility of ths Chattanooga Board of Education 
and this legal responsibility has no reference to integration 
of —  the Supreme Court of the United States and its opinion

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Raster - Direct 1394

’ of April the 20th makes no reference —
THE COURT: (Interposing) Exact —  is that

i exactly what Judge Miller wrote in his opinion in the Haehville 
j case? Aren * t you stating a proposition exactly the reverse of 
what he wrote in that opinion? Hasn't that been affined by 

I the Court of Appeals in this —
I HR. WITT* (Interposing) Integration?
I THE COURT: Yes, isn't that exactly what he said?

:o MR. WITT* If Judge Miller said that, then in my
n opinion. Your Honor, in construing the Swann case, it's

at variance —  his decision is at variance with what he said
n in the Swann case.

THE COURT* Of course, I will hear you on that 
! at an appropriate time, but I believe the objection should 
be overruled at this time. Allow the evidence to proceed.i <)
BY MR. WILLIAMS:

IH
ll>

20

21

>•>

21

21

o What is the function of an educational psychologist:
A That depends on w h o m  y o u  are speaking, whether
it's an educational administrator or educational psychologist. 
But since you are asking an educational psychologist, I'd like 
to set the record straight for tha nation. The function of 
the educational psychologist is to apply psychological 
principles to educational practice. In other words, he is 
in an area we call the blade psychology. The eaaonce of

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1395Re star - Direct
pedagogy, in ay estimation, is basing the process of educa­
tion on the processes of education on a sound, psychological, 

and sociological foundation and we provide the psychological 
dimension to the foundations of the whole process of pedagogy. 
q Have you completed your description of the
integrated school system?
A Well, essentially I think so.
q  All right. How, then, have you at my request

any examination or studies of the Chattanooga school 

j | system?
, a Yes, I have.

q  In connection with that, did I forward to you and
i !

have you read and studied the pleadings, the orders, the
1 1

original plan as well as all of the statistical data which
has been accumulated by interrogatories and various other —

Id

A (Interposing) You did and I have read the

IH
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material and analysed them thoroughly.
q Did you do anything else preparatory to your
submission of findings in this case?
A Yes, I did. I visited every school site in the
ay&UiX. 1  visited then and talked with principals and 
teachers La aao.plings of the schools, high schools, junior 
highs, elexaentaries; and talked with some pupils in the system. 
q All right. What are your findings in reference

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Raster - Direct 1396

i

to pupil integration?
A Well, first I'd like to graphically —  very rapidly
graphically display a comparison of what I call the progress 
of the school integration taking two years, 1963-64, the 
state of integration at that tine and comparing it with the 
state of integration this time. What I have done is taken 
statistical data and very rapidly I'd like to flip through 
what it looks like graphically. Sometimes —  don't know who 
said it, but sometimes this picture is worth a thousand 
numerical abstractions so I think that the evidence would 
speak for itself.
Q Mow —

MR. WITT: (Interposing) May it please the Court,
we object to the introduction of this by the witness' own 
definition, a picture will not show integration.

|7 THE COUkT: I haven't determined yet what it is
iH that's to be offered.
I g BY MR. WILLIAMS:

20

21

0  Dr. Kester, have you prepared certain charts
which —  or bar graphs, charts and graphs, which pi^ori®1^

22

2 l

display the statistical data which you have extracted from 
the submissions of the defendants in this case?
A I have, and I think it clarifies thing* very -
q (Interposing) Is that what you were about to

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1397i Hester - Directii| present to the Court?
A Yes, it VM.

i Q Will you proceed with it?
, A Yes.

THE COURT: Now, if you are going to show bosk
I charts, 1  would like to have all the parties to the lawsuit,

,4 any School Board esters, any school officials who wish to do 
so to move up into the benches where they can see. Peel free 
to move right on up. Now, if you are going to offer these 

i as exhibits, I assume.
BY HR. WILLIAMS: * I
Q Actually, these. Doctor, as you give these, can
you state the documents that are already in evidence from 
which you extracted this information?

11

I
 THE COURT: All I am saying is that, of course,
the picture itself can't remain a permanent part of the record, 
but 1  assume you are going to put the document in itself by
which you have the picture? You are going to place thei<>
negative —

21

2 1

MR. WILLIAMS: (Interposing) Yes, sir, we are
going to place —  these are transparencies. We are going to 
place these in evidence and we can do that right now, as a 
matter of fact. There is s folder of thorn, if Your Honor 
please. If we could just have the folder marked a collective

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Raster - Direct 1398
exhibit. He has taken them individually oat of the folder.

THE COURT: Next exhibit in order, then, will be
Exhibit 104, will be s folder o f  transparencies.

(Thereupon, the doomsnt referred 
to above was narked Exhibit No.
104 for identification. Witness Mr. 
Raster, and received in evidence.)

MR. WILLIAMS: May, free the standpoint —  first
thought of that, but maybe from the standpoint of being able 
to refer to then in the record, I'd like to make my request 
and ask that the transparencies be narked individually.

THE COURT: Individually? Very well.
THE WITNESS: Then as I get to each of these, Tour

Honor, how do you want to work this?
THE COURT: 1J4, allow him to mark it before

you refer to it and go by number.
THE NilHESS: Yes, sir.
THE COURT: One in the projector now will be

101 —  104, excuse me.
THE WITNESS: I simply wanted to clarify the

coding. Although one would be able to look end surmise what 
the coding was, black students on my graphs are marked in 
solid black and very fine slashes, that is, like population. 
White populations are open with a blue trissuing and broad 
striped open populations, again, in blue trimming. The

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H e ste r  -  D ir e c t 1399

statistical data used in the analysis here, as I said before, 
vith the data submitted by the School board, particularly 
used pupil and t m u her statistics from the report made to the 
United States Office of Education, October, 1970.

How, there may be some variations, because of 
changes of enrollment and there were some data presented that 
I noticed by the defendants about teachers, but they had 
eliminated, for instance, itinerant teachers. I included all 
wjclicri when I referred to teachers, I included all there 
are, so in terms of numbers, there may be some variations.
B u t, a g a in , th e  m a t e r i a l  was tak en  from th e  school s y s te m 's  

r e p o r t  t o  th e  U n ited  S t a t e s  O f f ic e  o f  E d u ca tio n  and i t s  

m in o rity  r e p o r t .

So, very quickly, first I'd like to point to the 
state of integration in 1963-64. This chart we have over 
here, the number in pupil enrollment and down here, the 
black-white ratio in comparison. I also have listed the 
year, the name of the school to which we refer, and the grades 
that the school covers. Notice I have also dost pitted up 
here the formerly all-black schools which were at the hign 

school level.
Now, this is desegregation of Chattanooga public 

senior high schools formerly all-black schools, Howard and 
Riverside and formerly white schools. This was 1963-64.



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tester - Direct 1400
: you can see at a glance, the black students outnumber the 

whites considerably in the former black schools. And sinoe 
desegregation wasn't even effected in this year for the high 
schools, we have total segregated schools.

Mow, then, I'd like to show an Interesting cceparisgi 
of the progress and I put that in quotation narks, frost 1943*44 
to 1970-71.

THE COURTt Identify these by number.
THE WITNESS: Yes, this is the 1963*64 display,

was Exhibit 105.
(Thereupon, the document referred 
to above was narked Exhibit No.
105 for identification, Witness 
Mr. tester, and received in 
evidence.)

THE WITNESS: This one, '70-71, is Exhibit 106.
(Thereupon, the document referred 
to above was marked Exhibit No.
106 for identification, Witness 
Mr. Kester, and received in 
evidence.)

THE WITNESS: Mow, Your Honor, you see, *63-64
is in the dark color here, and '67- —  excuse ne, '70-71 is 
in the slash. So that we have here Howard High School 
compared. Riverside compered, Brainerd COCkp * r 9 d , Chattanooga 

compared, and essentially pictorially we see the lorn level of 
integration.

Practically no mixture, certainly, in number.

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Raster - Direct 1401
Now so that the graphs are not construed to be 

j out of proportion or anything like that, I nave not only
I
<; taken great pains to draw then in proportion, but I have 
listed the numbers here t! at is the enrollment figures so 
that no one thinks I am trying to fudge here. In other words, 
graphically I have displayed as accurately as I possibly can 
the contrast here. There it was, and eight years later there 
it is. There it was, and eight years later there it is, and 
so on, right down the row, Light years ago there it was and 
here it is. It*s practically tha same picture. I see 
pictorially very little progress in terms of integration of 
the high schools.

I think I better make sure I get these back in the 
folder in the right order, since this is going to be admitted 
into evidence. I didn't know that I was —  105 —  okay.
Should get -- be sure we get these right.

And, again, I will have to do this school by 
school, because as we get right into these, the whole pattern 
will become clear. This is No. 107.

(Thereupon, the document referred 
to above was marked Exhibit No.
107 for identification. Witness 
Mr. Raster, and received in 
evidence.)

THE WITNESS: Wnat I am doing bare is taking the
status of integration of tha junior high schools 1^63-64.

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Raster - Direct 1402
And, let's take in l i o . 108 the "progress of the Softool system,* 
and, if Your Honor please, you can see here what we have is 
essentially the sane situation as we had eight years ago in 
tne junior highs with a few exceptions. For instance, we 
have a switchover school. It's evidenced right here, formerly 
.... 1 white school. Sow, it is predominantly blade. And, 
outside of that, the junior high schools are essentially 
the same.

(Thereupon, the document referred 
to above was marked Exhibit Ho.
108 for identification, Witness 
Mr. Raster, and reoeived in 
evidence.)

THE WITNESS: I have also made note here of a
special school that's in the junior high category, middle 
school, which did not exist in '63-64, because East Fifth 
Street was closed. I wanted to, for accuracy, say, display 
that here we have an eaentially segregated middle school,
389 blacks and 9 white children, so essentially in the 8 -year 
period of tine with the one exception of tne turnover school, 
we still have the racially identifiable pupil populations 
in the junior high schools.

Your Honor, we have the beginning of the 
elementary schools for 1963-64. And, again, 1 aa not trying 
to go over each one of them except to give you, of course, 
the —  essentially here we had former black segregated schools

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Kcster - Direct 1403
in *63-64. There was a little mixture here. Out of 397 
students, they had three c o m  in there. It's very hard to 
show three as different from zero in setae of these things.
This was a formerly all-black school. That is —  

hY MR. WILLIiiMS :
Q Formerly all black?
A No, this is a formerly all-white school that
by 1963, if you will remember in the testimony of the
special projects official, was part of the integration or —
. xc’j e me —  k art of their pilot program in desegregation.
But, with this one exception, you see the elementary schools
«;««re are formerly all —  excuse me. The integration of the
elementary schools in 1963-64 were at an extremely low level.

(Thereupon, the document referred 
to above was marked Exhibit No.
109 for identification. Witness 
Mr. Kester, and received in 
evidence.)

THE WITNESS; Now, to give the cosq>arison of these 
schools, while I already have them, I will introduce the 
overlay to this. Then I will go to —  with the rest of the 
elementary schools in a moment —  the rest of the white 
eiemontary schools.

As Exhibit Mo. 110, we see some eight years later
this picture looks essentially like this.

(Thereupon, the docusant referred to above was marked Exhibit No.
110 for identification. Witness Mr. 

rkharo sKesherv ̂ amd^reaeived in evidence.)
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Raster - Direct 1404
THE WITNESS. That is that those elementary 

schools that were formerly all black are still racially 
identifiable as all-black schools, little or no difference. 
And, the formerly all-white schools, I will say that where 
there has been any kind of token mixture of pupils in the 
schools, it 1 8 come at the elementary level. We see here, for 
instance, this school that was in ’63-64 integrated, is not 
integrated any more —  or at least it may have approximately 
some kind of racial composition comparable to that in the 
system.

And then, we have Brown here which was formerly 
totally white and now is desegregated somewhat and token 
desegregation along the way; but you get the picture, essential! 
we have the same situation.

Now, this school has switched from totally all 
wnite, that*8 Garber, to predominantly black school, and 
likewise io has East Side switched from predominantly white —

y

BY MR. WILLIAMS:
Q (Interposing) You mean Eastdale?
A Excuse me, I am looking at it upside down,

Eastdale, predominantly white; but these are things that are
pointed out before. Just graphically we see the picture 
clearly now that we have essentially the same amount of 
desegregation as we had eight years a g o  as thus far encountered

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Raster - Direct 1405

in the elementary schools.
Now, I an going to continue, then, with the 

elementary schools by picking up the rest of the white 
elementary schools that I had not previously covered very 
quickly just to get the picture. Here we are in 1963-64. 
That’s what we would have expected at that stage of the game, 
or1 aps.

(Thereupon, the document referred 
to above was marked Exhibit No.
111 for identification. Witness Hr. 
Kester, and received in evidence.)

THE WITNESS: Now, we have a switchover here
but you see, again, all I an trying —
BY HR. WILLIAMS:
q  (Interposing) All you are saying here you have
a switchover at Clenvood School?
A Glenvood School. These are things that have
been pointed out before in terns of the Board's —  this school
has changed, the dominant race of the school? but what I want
to do is graphically illustrate that, take it school by
school, there is nothing but a token difference in a period
of eight years in terms of nixing the races.

(Thereupon, the document referred 
to above was marked Exhibit No.
112 for identification. Witness Mr. 
Kester, and received in evidence.)

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Kester - Direct 1406

a little bit different angle, you see, in terms of answering 
progress year by year on the basis of percentage of racial 
mixture. For instance, l«t's start with the formerly black 
elementary and junior high schools.
BY HR. WILLIAMS:
Q What is that exhibit, please?
A These are charts.
Q What's the number?
A Excuse m e , this is Mo. 113. Exhibit 113.

(Thereupon, the document referred 
to above was marked Exhibit Mo.
113 for identification. Witness Mr. 
Kester, and received in evidence.)

THE WITNESS: This is another look at the
desegregation progress, not in two snapshot views before and 
after, but a look at the progress of the desegregation year 
by year in terms of percentage of the other race being, in 
this case, the former elementary —  black elementary schools 
and the former black junior high schools. So, we see that 
those schools that were formerly all black have had such 
progress as five-tenths of a percent to one percent; remain 
the same in '65-66; dropped a little in terms of percentage 
of racial mixture in *66-67; remained the same and then went 
up to 2 percent in '68-69.

THE WITNESS: Now, l*d like to approach this just

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>>

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Kester - Direct 1407
It dropped back, to 7 percent in —  seven tenths 

of one percent in '69-70, and so on, so that you see in 
comparison to the base line of zero, there has been next to 
no progress in the formerly black elementary schools.

Now, let's take the formerly black junior high 
schools, and we see essentially the same thing. Everything 
scores less than one percent in the formerly black junior 
high schools when you are talking about peroent of racial 
mixture in terms of white percentage.

Now, in terns of plotting the progress along, 
again, in percentage of racial mixture, we go into the high 
schools of formerly black high schools and we see the picture 
looks something like this.

THE COURT: Exhibit 114.
(Thereupon, tne document referred 
to Aove was marked Exhibit No.
114 for identification, Witness Mr. 
Kester, and received in evidence.)

THE WITNESS: Yes, sir, this is Exhibit 114.
And then when you average the percentages for the total black 
schools, the percentage of integration i3 in every instance 
by *68-69 less than one percent; and at present, integration 
in all former black schools by averaging the percentages 
comes out to be about . 6 —  that is not . 6  but six tenths of 
one percent of integration in the formerly -- quote formerly

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Raster - Direct 1408
black schools. Thay are very much racially identifiable as 
blaak schools in my opinion.

Now, we can look at progress in the same way in 
terns of year by year percentage of mixture in the formerly 
all-white schools. Picture doesn't look quite as drab, in my 
opinion. This is Exhibit No. 115.

(Thereupon, the document referred 
to above was marked Exhibit No.
115 for identification, Witness Mr. 
Kester, and received in evidence.)

THE WITNESS« And we see that for the elementary 
schools, the picture looks something like this. Progression 
from *63-64, 6 percent mixtures in the white schools. Now, 
these are former white schools. They are willing, in other 
words, to move black children into the white schools, but not 
to move white children into the formerly black schools, 
because we saw next to nothing —  everything approached the 
base line in the former graphs. But here we see —  this is 
the progress up to the present date, approximately 25 percent 
mixture when you take all elementary schools together. I am 
going to show southing lfttere8tin, tnough in *

When we have formed —  when we look at the
picture of former white junior high schools, of course, 
desegregation starts a little later in the secondary schools 
so *63-64 wasn't too impressive although it was hotter than

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Ko b ter - Direct 1409

• 6 4 -6 5 . And th e n , b eginn ing in  '6 5 - 6 6 ,  th e  p ro g re * * io n

I s t a r t e d  up to  a p p ro x im a te ly  21 p e r c e n t  o f  r a c i a l  m ix tu re  in  

1 th e  ju n io r  high s c h o o l*  tak en  in  t o t a l  r i g h t  now b u t t h i s  i s  

! kind o f  an i n t e r e s t i n g  p i c t u r e  t h a t  we g e t  h e r*  —  j u s t  a 

j moment —  I have a l i t t l e  i n t e r e s t i n g  o v e r la y  h e r e . J u s t  taking) 

t h i s  y e a r ,  Your H onor, so  t h a t  wo a r e  n o t  to o  d e ce iv e d  by 

| t h i s  25 p e r c e n t and 21 p e r c e n t ,  I ’ d l i k e  to  show you som ething  

'll t h a t  i f  we e l im in a te  fo u r o f  th e  tw en ty -tw o  e le m e n ta ry  

I s c h o o ls ;  nam ely. Brown, K a s td a le , G a rb e r , and Sunnyside  

i 1 fo u r  o f  th o se  tw e n ty -s c h o o ls  a c co u n t f o r  25 p e r c e n t  o f  th e

t o t a l  i n t e g r a t i o n  in  a l l  th e  sy ste m . In o th e r  w ords, you have 

, > a  few s c h o o ls  o u t o f  th e tw en ty -tw o t h a t  a re  a cco u n tin g  f o r

(m ost o f th e  i n t e g r a t i o n  when you t a l k  in  term s o f  p e r c e n ta g e s .

As we saw in  th e  graph s p re ce d in g  th e s e ,  m oat o f  

th e  s c h o o ls  in  th e  system  rem ain m o stly  s e g re g a te d  e x c e p t  

fo r  to k en ism .

Taking th e  ju n io r  high  s c h o o l s ,  th r e e  o f  th e

I

! 0 e ig h t  ju n io r  high  s ch o o ls  a c co u n t f o r  o v er 50 p e r c e n t  o f  th e

integration and in fact if you will eliminate Dalewood, 
Hardy, and Lookout, the percentage is, of desegregation, 
ia very small, something like 10 percent. That's shifted 
a little there —  10 percent -- desegregation or integration 
in the junior high schools. Eliminating those three so that

wc can  —

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Kester Direct 1410

BY _MR_._ WILL I AMS:

Q (Interposing) Is that dotted line does that 
dotted line indicate the approximate level on th e  perpendicular

s c a l e ?

A T h a t 's  r i g h t .  I f  you m atch th e  two graph s

e x a c t l y ,  I have graphed any p o in t  a t  which d e s e g re g a tio n  would

f a l l ,  i f  I  e lim in a te d  th e s e  s ch o o ls  

q (In te rp o s in g )  So i f  you e lim in a te d  Brown, E a s td a l^

G a rb e r, and S u nn yside, p e rc e n ta g e  in  w h ite  e le m e n ta ry  s c h o o ls  f  

A (In te rp o s in g )  Something l i k e  19

q (C on tin u in g) — 25 p e r c e n t  t o  1 9 ,  and th en  w h ite

ju n io r  high s ch o o ls  f a l l  from 21 p e rc e n t?

A
Q

A
Q

To 10 .

Approximately 10?  

T h a t 's  right.
All right, sir.

(Thereupon, the document referred 
to above was marked Exhibit No.
116 f o r  identification. Witness Mr. 
Kester, and received in evidence.)

THE WITNESS: E x h ib i t  No. 117 i s  a c o n t in u a t io n .

(Thereupon, th e  document r e f e r r e d  
to  above was marked E x h ib i t  No.
117 f o r  i d e n t i f i c a t i o n ,  W itn ess  
Mr. K e s te r ,  and r e c e iv e d  in  
e v id e n c e .)

thf. WITNESS: Now. of the former white school o  i  n



! 0

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Kester - Direct
term * o f  high  s c h o o ls  &nd —  and we s e e  h e re  t h a t  th e r e  has  

been v e ry  l i t t l e  d e s e g re g a tio n  in  th e  fo rm er w h ite  s c h o o ls  

where a l l  o f  th e  d e s e g re g a tio n  h as tak en  p l a c e .  I f  we ta k e  

th e  form er —  fo u r  form er w h ite  s c h o o l s , i t  r *J.s som ething  

l i k e  19 p e r c e n t  d e s e g r e g a t io n . T h at i s  a v e ra g in g  th e  form er

w h ite  s c h o o ls  p e r c e n ta g e s .

THE COURT: What i s  th e  d i f f e r e n c e  betw een th e

to p  c h a r t  and th e  bottom  c h a r t ?

THE WITNESS: T h is i s  j u s t  h igh  s c h o o l s .  Your

H onor, and t h i s  i s  f o r  t o t a l  e le m e n ta ry , ju n io r  h ig h , and 

h igh  s c h o o l s .

BY MR. WILLIAMS:
q And t h a t  19 p e r c e n t  a t  th e  b o tto m , I  ta k e  i t ,

a l s o  ta k e s  in to  c o n s id e r a t io n  th e  c o n c e n tr a t io n  in  th o s e ?

' Oh, it does.
Schools you had on the previous —  

(Interposing) Very definitely, that’s a total

20
21

A
Q 
A
p i c t u r e .

Q i f  you e lim in a te d  them , th e n  t h a t  19 p e r c e n t

would f a l l  t o  some e x tre m e ?

A i f  we d id  e l im in a te  th o s e , t h a t ’ s  t r u e .  Now —

THE COURT: ( I n te rp o s in g )  At an a p p ro p r ia te

p o in t in  your e x a m in a tio n , we w i l l  r e c e s s  f o r  th e  noon h o u r.

MR. WILLIAMS W e ll , Your H onor, t h a t ’ s  a l l  th e

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Kester - Direct 1412
i l l u s t r a t i o n s  I have o f  p u p il i n t e g r a t i o n .  T h a t 's  —

THE COURT: (I n te rp o s in g )  V ery w e l l .  L e t ' s  be

in  r e c e s s  in  th e  t r i a l  o f  t h i s  c a s e  u n t i l  1 ( 3 0 .  The C o u rt  

w i l l  convene in  o th e r  m a tte r s  a t  1 : 0 0  o 'c l o c k ,  b u t p a r t i e s  

w i l l  be excu sed  from  t h i s  c a s e  u n t i l  1 : 3 0 .

(T hereupon, th e  noon r e c e s s  was ta k e n .)

' JTEHMOOM SJ5SSIOK

1 : 3 0  O 'c lo c k , P . M.

(T hereupon, p u rsu a n t t o  th e  noon r e c e s s ,  c o u r t  

was convened a t  1 : 3 0  o 'c l o c k ,  p . m . , and th e  fo llo w in g  f u r t h e r  

p ro ce e d in g s  w ere had and e v id e n ce  in tr o d u c e d , t o - w i t : )

BY HR. WILLIAMS:

Q D r. K e s te r ,  you wish t o  p ro c e e d , now, w ith  th e

f a c u l t y  o r  do you w ish t o  s t a t e  your c o n c lu s io n s  w ith  x&qard 

t o  pil assig n m en t a t  t h i s  tim e?

A W ell ,  I  r e a l l y  have some o th e r  th in g s  I 'd  l i k e

to discuss in term s o f  p u p il assig n m en t in  term s o f  my

findings.
Q A ll r i g h t .

A In term s o f  my f in d in g s , t h e r e ’ s been a  q u e stio n

r a is e d  about open e n ro llm e n t o r  freedom  o f  c h o i c e .  ,I t  s

c a l l e d  by both te rm s .

In  a s s ig n in g  sch o o l s tu d e n ts  t o  a tte n d a n c e  c e n t e r s ,  

and I  just w ant t o  p o in t o u t t h a t  th e  governm ent document

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Kcster - Direct 1413
“Racial Isolation of Public Schools," identified freedom of 
choice as basically ineffective in bringing about integration 
of the schools. Noe, all over the country there have been 
systems that have tried this, and where you have something 
such as racial prejudice at the base of an educational practice 
segregation in the schools, then you are not going to find 
freedom of choice a very effective means. Just as it's been 
ineffective in countless other school systems, I found it was 
ineffective here in desegregating the high schools as was 
shown pictorially, graphs I displayed a moment ago.

And not only that, I think it needs to be pointed 
out that when one arrives at an only means for desegregating 
the school as being one particular alternative such as open 
enrollment and that particular method is the only one that's 
considered seriously or otherwise, the only one that's 
considered and is ineffective, in ;-is:nce, the choice of that 
method perpetuates segregation in the system because it 
excludes alternatives that would have been far more effective. 
And by alternatives, I mean zoning the high schools or busing 
or whatever else might have been determined to be effective 
in integrating the schools.

So, the whole process of open enrollment has 
not only been ineffective for this school system but it’s 
been ineffective across.

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Kester - Direct 1414
0 And it has been effective, then, to perpetuate
segregation?
A That's the point so m e people miss, but you see,
when anyone isolates a single alternative to the exclusion 
of every other possibility and that's the only way they 
attempt to bring about integration, then the logical deduction 
that one must reach is that they have effectively prevented 
integration of the high schools.
Q All right. Nov, while we are cm this subject,
Dr. Kester, discuss, if you will, the majority to minority 
transfer.
A All right. I can discuss —  may I discuss
transfers in general?
Q Discuss transfers in general, then.
A In the first place, transfer policies of any
kind is not going to be the —  it’s not —  you are not going 
to be able to use that as the sole vehicle to effect integra­
tion. If you are really trying to integrate your schools, 
that's not the one thing that you are going to isolate as 
being the way to do it; and, specifically, a transfer provision 
such as a majority to minority were that to have existed —  

which it didn't —  as one of the conditions of transfer but 
were it to have been specified as such, it ia and of itself 
was not liable to bring about effective integration of the

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Kester - Direct 141S
schools simply because it's another form of freedom of choice 
as I see it.
C Limited form of —
A (Interposing) Limited form of freedom of choice
because, you see what you do, as you look, the people who 
would like to —  who are in this majority group transfer to a 
minority school so in effect you have a freedom of choice 
situation which is just as ineffective there as it is in othe 
places except that it can be helpful, you know. In other 
words, if, for instance, in the pupil transfers we didn't 
have such a wide latitude of transfers —  by the way, I think 
that's been detrimental to the system, because it provides 
a basis on —  by which a parent can transfer his child out of 
a school zone that's going to be integrated on practically 
any basis.

Now, I will admit that —  that I cannot find 
indications, with perhaps one exception, where this might have 
been done. But, you see, there's a reason for that. Pupil 
transfers haven't been used for dodging school integration, 
aren't been used by parents for dodging school integration or 
sending their kids to integrated schools for a reason. They

haven't had to ; cause the school system has been essentially 
a segregated system anyway.

So once they integrate pupils in the schools, then

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Kester - Direct 1416

we are going to see the effects of such a vide latitude of 
transfer policy in terns of being a detriment to desegregation. 
And, l can point to specific ones that 1 think are particularly 
detrimental.

In the current guidelines for transfer of students, 
item 2(b) —  this is Exhibit 98 I am looking at —  item 2(b) 
specifies that children of working parents who are placed in 
established agencies which provide before and after care may 
attend the school in which —  in which zone the agency is 
located.

Well, now, I find a highly suspicious situation 
in both *66-67 and *70-71 data in this accord, one of the 
I'.â ona I would challenge this provision. You see, logically 
you will find segregated agencies setting up their before and 
after school care centers wherever they wish to set them up, 
primarily in segregated neighborhoods, perhaps although it 
doesn’t have to be that way. The point simply is that you 
could locate these day schools close to an essentially 
segregated elementary school and have yourself a perfect 
cop-out. All they have to do is sayf .j enroll my kid there

before and after school."
And let’s look at highland Park Elementary School 

as an example. I am not 9aying this did happen, but I am 
saying that it's highly suspicious and I suspect that it might

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Kester - Direct 1417

have; because we had students transferring from schools that 
were to be integrated to highland Park Elementary which was 
essentially all white, a large number of thorn transferring 
under this provision. And, if I read correctly, Tennessee 
Temple is in that area, and the people at Highland Park 
Baptist Church and Tennessee Temple have taken a stand as 
segregationists in this community up until recently, if not 
currently. So that we have identified a school in a neighbor­
hood that has been expounding about segregation, has provided 
sort of a haven. If this were to be used, as you understand,
I tend to determine motivation but I can say it —
Q (Interposing) v_an you point to the statistical
data in this exhibit that tends to support this conclusion?
A Yes.
Q Refer to the exhibit number.
A Exhibit 98 is the one I am looking at right now.
Q All right.
A In Exhibit No. 98, which is the year 1970-71,
there were —
Q (Interposing) What page are you on?
A Excuse me.
Q Page related to Highland Park?
A I am looking at the cross reference, the summary
of transfer requests, and it says, “Request to attend Highland

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Park." It's on page 1, 2, 3, 4, 5, 6.
Q On the sixth page?
A At the top of the pag». .
Q All right. Will you now then indicate the figures
to which you have reference?
A Yes. Under it ess (b) there are listed ten transfers
from Hemlock area to attend Highland Park trader provision 
(b). Now, as I said, this is at present date —  and I don't 
know how many of these people are essentially the same people 
that applied for like transfer in 1966-67 —  but I —  and I 
don't have that particular exhibit, the 1966-67 exhibit —  

would have been about 100 or 101, but I found the same type 
of thing there.
0 Well, let's —  you left our copy of it at hone,
didn't you?
A Yes. But —
Q (Interposing) Refer to the original *66-67
exhibit. May we have that, Your Honor? Do you have another 
copy of that?

THE COURT: Exhibit 99?
THE WITNESS: Exhibit 99.

Kester - Direct 1418

22

21

BY MR. WILLIAMS: 
Q All right. Will you take this copy. 

THE COURT; he has the exhibit.

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Hester - Direct 1419

BY MR. WILLIAMS:
Q Oh, all right, sir.
A Yes. Now, on page one —  no, sir, that's —  that's
the new summary sheet. The new summary e* :i‘t would show that 
transfers to Highland Park Elementary School are listed under 
item 2(c) in '66-67; '66-67, item 2(c) is the equivalent of 
'70-71 item 2(b). In other words, they have just changed the
order in that, but they are essentially the sane.
Q That criteria?
A Sane criteria.
Q For transfer is the same under item 2(c) for
•G6-67 as it is under item 2(b) for *70-71?
A That's true. So that we have here listed 15
transfers —  now, not all 15 of those —  see, I don't have 
that cross reference, now. That's c w n e  of the new exhibits -- 
were from desegregated schools; but I point to that as being 
a suspicious situation.

'66-67 and *70-71 and perhaps all the years 
in between that we have a neighborhood school here that is 
essentially all or all white --
Q (Interposing) Yes. The record, Exhibit 3,
reflects, if Your Honor please, that Hemlock School in 'b6-67 
had 54 blacks and 242 whites, whereas Highland Park had no 
blacks and 404 whites; and that even *70-71, Hemlock had 66

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blacks and 195 whites, Highland Park still had only four blacks 
and 351 whites?
A Yes. So —  so what I am saying is that this ia
the only thing that I found that was suspicious. I don't say 
it's misadministration of a policy. I am saying the policy 
provides this kind of opportunity if they locate a segregated 
child care center there and simply apply to move their children 
into the segregated child care center or child care center

!jand I suppose that it's segregated. That's something else,
I don't know whether it is or isn't, but I do know the result 
was their kids went to an all-white school.
Q Yes.
A And, this is the type of policy that I am talking
about in terms of wide latitude.

Now, the same thing can be said for working 
mothers. This has been known all over the country. Once a 
school system really integrates, this type of transfer policy 
is permission to get out of the integrated situation. Item 
(g) , 2(g) , of the current transfer policy ta^ks about situations 
requiring working mothers to take their children to places of 
business before and after school.
0 What about item 2(d), working mothers placing their
A (Interposing) I just mentioned that one.
Q You didn't mention the item.

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, A 2(d), children of working mothers who piece their
children in a home. That's the one that’s been used many 

i times before; and item 2(g), taking the kids to work with you 
- and saying you have to take them with you and put them in 
h another school.

Kester - Direct

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Item 2(i), one which was questioned this morning 
as a delay provision. And, if we were to simply add this one 
that you asked me about, this is transfer (f), majority to 
minority, with all the rest of this, it wouldn't have nearly 
the effect it would if we had a rather limited transfer policy 
and a rather rigid adherence to soning cctaaitments.

Now, in terms of the rest of the picture that I 
have of the school zones, while I am mentioning that and 
because transfers of zonas are very closely related here,
I see essentially what's already been brought out before, that 
the school zones that exist have maintained segregation; that 
zoning could have been effected way back in 1962 that would 
have changed the racial complexion of your elementary schools 
and not been too much of a problem to do so.

But, zoning in that way wasn't chosen as a method 
of integration. And, transfer policies that are tied to>\>
already racially segregated zones are going to be ineffective

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in terms of their ability to integrate the school system.

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So, wo nave c t i v i j zones in terms of integrating the schools ;

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and likewise, any transfer policies that are tied to those 
ineffective zones and that are of such wide latitude as to 
permit anyone to run who wishes to run, going to be ineffective 
in bringing about integration in the public schools.
Q All right. How, specifically —  all right. Have
you concluded your —
A (Interposing) Ho, there's one other thing I'd
like to say about zones, just cane to ny mind. That is once 
you start with an essentially segregated soninc system that 
is a zone system that hft.i not cut across racial lines but has 
in effect maintained racial segregation, then any kind of a 
feeder system built upon that zoning plan is going to, in 
effect, perpetuate the segregation. So, you have segregation 
in your elementary schools via racial residential patterns. 
Feeder systems which feed essentially white schools or vt;ry 
moderately mixed schools if at all; feeder systems which feed 
segregated schools into a junior high school and therefore 
you maintain your segregation at the junior high level.

Then, you have an open enrollment system which has 
been ineffective and will continue to be ineffective in terms 
of ray opinion in —  in bringing about integration in schools.
K2 What is the effect of —  before I get to that,
of course, might it or might it not have been possible for 
the School Board to make some effort through the feeder system,

Kester - Direct 1422

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Kester - Direct 1423
albeit segregated elementary schools to try to construct a 
feeder systen to at least integrate the junior high schools.
A One thing we need to remember, that's true.
Q Was that done?
A No, that wasn't done. You see, that was another
possibility that -as overlooked. But, you see, we don't want 
to overlook the converse of —  of situating schools into 
racial re identifiable oomunities, too, because not only does 
the community or t.m  schools take on the cosap 1 exion of the 
community but, you understand, communities are built up around 
schools, too; so if you start a school as an essentially all- 
black or all-white, unless you take some measure to break that 
identity, the complexion of the community is going to take on 
the same racial identity.

And, therefore, if they simply stick to the neighbor­
hood school concept of zoning and feeder system, you are going 
to suspect that they chose "the logical school to maintain 

Lr’ -- their neighborhood school system which was —  there 
was a junior high school and, well, just have these schools 
feeding into this one junior high school according to its 
capacity.

But, on the other hand, there are some neat 
arrangements that could have been had if their goal, mind you, 
if the value had been integrated education —  if the commitment

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had been equal educational opportunity. In my opinion, there 
are feeder patterns that could have been arranged to break up 
the segregated schools, too.
Q But that was not done?
A That was not done in ray opinion.
Q Now, what about —  and so what is your opinion
about whether or not there was a commitment to integrate 
education on the part of this school sys —
A (Interposing) I would say one of two alternatives,
perhaps others, but two that c o m  to my raind readily. Either 
they did not attempt to find out other plausible explanations 
and alternatives, the leadership was totally unaware that 
anything else could have been done, living in a total state 
of ignorance —  which I doubt seriously —  or they were not 
committed to the principle of equal educational opportunity 
for all citizens, black and white and —
Q (Interposing) All right.
A (Continuing) —  they based their policies of
pupil integration on this lack of commitment.
0 All right. Is there any —  is there any —  what
relation is there between a strong, firm commitment and 
declaration of commitment on the part of the School Board and 
school authorities and effective school integration?
A w e l l ,  there's been some research in that area.

Raster - Direct

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Kester - Direct 142S

and it seeos that there is a very high, positive correlation 
between the acquiescence of the School Board to first principles 
of integration and equal opportunity for all citizens and the 
progress, the speed and quality of the progress made in 
integration of the public schools. Therefore, I would say 
that if the School Board all along had taken a poature of this 
commitment to an American tenet of democracy and had interpreted 
equal educational opportunity as meaning integrated education, 
that the school administration could have effected school 
integration in this system long before now.
Q There was one final thing, do you have any consent
about optional sones in connection with —
A (Interposing) Well, optional zones Is just another
one of those things that crops up occasionally. Usually it's 
under the logic of, "Well, we have overcrowded schools," but 
I find an optional zone is a —  really unnecessary and a 
definite detriment to school integration. All it's saying 
is, "If you wish to cop out on the situation, then you may do 
so. “

For instance, I find optional zones in this system 
when essentially it provides an opportunity for some white 
parents to take their children out of what would logically be 
zoning for integration. I am thinking of the tone which 
permits the parents to take their children from —  from the —

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Raster - Direct 1426

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1 can't —  Glenwood area, iron the Glenwood area and transfer 
them to Missionary Ridge. You see, now, Glenwood is a pre­
dominantly black school. This optional zone would have put 
those kids in a Glenvood area; but then —  that is if it were 
zoned for integration. But now, we provide an option for those 
parents to take their kids out.

Now, I understand that we can talk in tens of 
; school capacity and say it wasn't our intention to let then 
out in the situation. All 1 am saying is that it provides 
the opportunity for it. If this is the motive of the parents, 
they have got a way out, is all I am saying, by opening all 
zones; but, you know, I never find optional zones, not in this 
system but in any system, I never find optional zones set up 
for black people to go to all-black schools or —  or to go to 
tfhite schools.
Q The option then seems to operate one way all the
time?
h well, that is in terms of its effect. If they

r

wanted to use it that way, that's the way it would go.
2 All right. What if any consent would you have with 
regard to the effect of such devils optional zones and 

free transfers in reference to the movement of whites out of
a zone of an integrated school given as we have in this case, 
the testimony, the fears of the Superintendent, and others, that

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Kester - Direct 1427
there night be
A i don't understand your question. I an sorry,
1 missed something here.
Q State whether or not the optional zone would give --
would allow time for parents of school children to move out 
o * the zone of the integrated school before they had th* 
opportunity to find out what the integrated school was like 
in terms of parents who —  white parents who might want to 
move out of the zone?
A Yes, there is no doubt that it does.

> ||Q And in that sense, is that —  if that be true,
n ji« that any deterrent to integration?

A This is just an extension of what I have already
said about the optional zone, that is that 1 consider it 
just as I consider freedom of choice, to be a deterrent to 
integration. Optional z o n e s , on the same logic —  on the basis 
of the same logic, is a deterrent to integration.
Q All right. Do you have any additional findings
with regard —  findings or conclusions with regard to pupil 
zoning?
A I can’t think of anything specifically.
Q What are your findings with regard to faculty?
A Well, first I’d like to, again, purview the state
of faculty desegregation-integration in much the same way as I

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Kester - Direct 1428
have before.
Q All right.

THE COURT: All right, let'a interrupt this long
enough to take up one further arraignment.

(Thereupon, a recess was taken.)
THE WITNESS: In scan what similar fashion.

3Y MR. WILLIAMS:
Q Will you proceed?
A I'd like to present a picture of the state of the
teacher desegregation here in Chattanooga, system as I see 
it.

Now, this is a graphical —
THE COURT: (Interposing) Just one m o m e n t .

THE WITNESS: This is a graphical analysis of
school desegregation, 1970-71, and is not intended to show 
progress or anything. I just wanted to quickly reflect the 
picture of teacher desegregation in the Chattanooga public 
schools at this time on a percentage basis.
BY MR ._WILLIAMS:
Q From what data?
A These were taken from the same data pupil desegre-
gation were taken.
Q Furnished by?
A United States.

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Kastsr - Direct 1429
Q School Board and in evidence aa an exhibit?
A That's true, sane data as we had our pupil
desegregation, United States Office of Education Report,
1970-71.

Essentially we have, as you see, formerly all- 
white schools that are racially identifiable by their faculty 
in terms of having predominantly white faculty at.formerly 
white schools and predominantly black faculty at the former 
black high schools. That's exhibit —

Q (Interposing) Before you take that off —
A (Interposing) Ve don 't have —

0 (Interposing) In the case -- whereas in the
case of pupil graphs, pupil assignment graphs, the numbers 
at the top are the actual numbers of, respectively —
A (Interposing) No, as I said —  now, I am not
talking in nxsitbers. Before I had actual, enrollments in the 
school. I am saying this is percent of faculty. These are 
percentage figures. Notice that each one amounts to 100.
Q All right.
A This is percentage of faculty.
Q I am sorry. I wasn't listening.
A And, the racial composition.
y So that Brainerd has 85 percent white and 15
percent black?



Kester Direct 1430
A that'• true.
Q Okay. And so on?
A Now, we hare a graphical reflection of the facts
and as I point out, graphically, it beoowes quite clear 
that we night as well have white school carved over Brainerd 
and white school carved over Chattanooga and black over Howard 
•ird black over Riverside) not only in terns of their student 
body, but in term of their faculty.
Q Black school carved?
A Carved.
Q Carved over the door?
A that's what 1 said, night as well have "black
school** carved over the school building, carved over the door, 
in terras of faculty as well as students, because we've got 
black faculty teaching black children, essentially, white 
faculty teaching white children, and the kids go there know 
that and the citizens of this cc— unity, I an sure, know 
that. That's for the high schools. That'r Exhibit Mo. 118, 
Tour Honor.

(Thereupon, the docunent referred 
to above was marked Exhibit Mo.
118 far identification, Witness 
Mr. Kester, and received in 
evidence.)

THE WITNESS: Exhibit 119 —  Exhibit Ho. 119 gives
essentially the sane picture for the junior high schools and,

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Kester - Direct 1431
again, in terms of the complexion of the student body, that is 
the racial composition of the student bodies.

We see a comparable situation for the junior high 
schools. Alton Park is essentially an all-black junior high 
school and the faculty at Alton Park is all black. And 
Brainerd is white and so on for each of the schools. We have 
a unique situation at Hardy where the faculty at Hardy is 
approximately 52 percent black and 48 percent white, balanced 
faculty at Hardy, but the rest of the schools, junior high —
Q (Interposing) How about Lookout?
A oh, at Lookout, it’s 40 percent black and 40 percen ;
white; but the rest of the schools ere essentially identifiable*
by race in terms of the faculty as well as the student body.
In other words, what I am saying is pretty nearly the faculty 
racial composition reflects the student body racial composition 
so that we can sea —  put the two together and you have got 
black schools and white schools in the minds of everybody in 
the community.

(Thereupon, the document referred 
to above was marked Exhibit Ho.
119 for identification, Witness
Hr. Kester, and received in evidence.I

THE WITNESS: How, Exhibit No. 120 —
(Thereupon, the document referred 
to above was marked Exhibit Ho.
120 for identification, Witness
Mr. Kester, and received in evidence.)

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Kaster - Direct. 1432
THE HITW t S S i HO. 120 begins with the elementary 

schools and —  and, again, we have essentially the same picture 
for elementary schools. By the way, I want to point out one 
thing here. I have graphed this information on the Amnioola 
Elementary School based on the data of teacher integration 
in the HEN report; but the witnesses yesterday on teacher 
integration have indicated that that now is an unbalanced 
situation and have about fire teachers there and it's pre­
dominantly black, if I an not mistaken, or white. In other 
words, it's a 4-1 situation, and X don't know whether it's 
black-white, white-black. I didn't catch that, but this 
particular graph, then, is less favorable than it was.

And, again, you can see that essentially the 
racial compositions of the schools are reflected in the racial 
composition of the faculty.
Q With the exception of Avondale?
A Hell, but you understand what I am saying is that
when we have a balanced situation here on —  no school do we 
have a balanced situation in pupils.
Q Okay.
A Slide Ho. 121 or Exhibit Ho. 121 la a continuation
of the same situation.

(Thereupon, the document referred 
te above was marked Exhibit Ho.
121 for identification. Witness
Mr. Hester, and received in evidence.)

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THE WITNESSi where we have other el— entiry 
schools, again, sows teacher integration in sows schools.
Bat, by and large, the school is identifiable by the race 
of the faculty, that is, the racial ocsposltion of the student 
body would also be identifiable by the racial oospoeltlom of 
the teachers in the school.

Kester - Direct 1433

And, the last of the elsswntary schools is 
in Exhibit No. 122, which continues, schools that are Identifiable 
by the racial coaposltlan of the student body ere likewise 
identifiable for the stoat pert with the exception of Trotter, 
which is approximating there 54 percent white and 42 percent, 
but all those exceptions ere obvious. In other words, Trotter 
i\As a black student body but approximates some kind of equality
of ratio in their faculty.

But, with that exception, the rest of than are 
easily identifiable as whits schools or black schools.
Q Do you find in those any disparity as bstwass
the extent to which white teachers are eselgaed ta black 
schools where there is ease sseblanre of balance and the
black teachers are assigned to white schools?
A I think it's quite clear.
Q Haven't gone into that?
A Tea. I mean, it's quite clear that in meet

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teachers going into white schools. Bat, as would nt|eol that 
pattern on the basis of pupil integration, toe. Zt still hasn't 
upset the total picture of black, and white schools in both

i
the student body and the faculties and that's what Z sea wary 
quickly, and I think graphically it was delayed without question. 
Q All right. Will yon go forward with any further
findings you nay have made with regard to faculty integration 
here?
A Yes. I'd like to address nyself to ana other
point, and that is the fears that seem people have sheet 
the effect of required or naadatory teacher transfers in an 
effort to integrate the faculty in year schools. Since court 
orders have been nade in this area requiring faculties to 
integrate and approximate similar racial ccnpealtlon of the 
faculty as exists either in the student body population or 
as exists in tarns of the total teachers —  total masher of 
teachers or proportion of teachers in the aysten, there have 
been some research studies that have triad to follow the 
effects of such requirements. Now, the date are far from 
being all in, but soaw preliminary findings, particularly 
findings by Dr. Murray Bindanaa, profession of sociology 
at the University of Miami, in following the Dads Oounty 
system, are kind of interesting. For instance, he is finding 
in his principal analysis of the data over e year and a half

Kestar - Direct 1434

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Raster - Direct 1435
of mandatory transfers that those teachers who had a pooitive 
professional concept of themselves as teachers have adapted, 
adjusted, and still think highly of themselves and they are 
competent and able to handle the situation in the new —  under 
the new circumstances. That is, the higher their professional 
concept to begin with, the mors adaptive they are in handling 
forced integration of faculties.

Those teachers who have a low concept of their 
professional abilities were the ones who had the problem in 
working under a mandatory situation. And, it appears that in 
a short year and a half, the majority of the teachers in this 
very large system numbering over 10,000 teachers in the system 
is leveling out. And, because they had a predominant number of 
people who had strong professional identities, they knew what —  
in other words, they were coemitted to the role of teacher 
more than they were racists or anything else. These people 
are handling the situation well.

And, I can say one other thing about teacher 
transfers, as long as you have a freedom of choice policy in 
teacher transfers, you are going to have about the same 
minimal ineffective teacher desegregation as you have in pupil 
desegregation. And, in fact, there's something that was 
brought up yesterday that I'd like to address myself to which 
is a matter of analysing statistical models. We couldn't even

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Kester - Direct 1436

assume, though, if something was brought up about, wall, if 
we continued at the present rate it would take another 25 
years to reach any kind of approximation of racial composition 
that exists in the total systeal. But, in statistical analysis, 
you can't assume that the progression is going to go that way. 
You see what you have is situations comparable to two bottles 
of wine. Sow, A and B, and in bottle A you have all the 
people who would, though you don't know who they are, who 
would voluntarily transfer. And for all we know, in Chattanooga, 
everybody who is going to transfer has already transferred.
And, if you wait for the rest of them to transfer, you nay

»

wait till the world turns square.
Q All right, sir. what does this research that
you Mentioned with regard to the quality of the teachers who
tend to resist integration cause you to conclude with regard!
to a school system which waits to try to persuade those who
resist in terms of the quality of education they are producing

i
in their system?
A well, I am not ready to draw hard, fast conclusions,
but my tentative conclusion based on the data that 1 have had 
access to thus far would indicate if I ware the administrators 
making the decisions, I want the teachers who had the high 
perception of their role as teacher and who had the kind of 
commitment to equality of educational opportunity that they

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Raster - Direct 1437

would adopt when dee and a were made upon thee to insure the
equality. And by equality, I eean quality, too, ao tdren we 
have equality of educational opportunity we have quality of 
education, in say thinking.

And so, 1 can't see that there is any loss by 
teachers who leave a system because they are not committed to 
this basic, democratic tenet in our society of equality of 
educational opportunity. And, that's m y feeling about it. I 
think the data continually bears this out. The better teacher 
has a better role perception for himself and is more coemitted 
to teacher than anything else and when he is in a new situation 
as teacher, he adapts as teacher.
q or. Raster, is it possible to orient teachers in
human relations and integration after they have been assigned 
on a bi-racial basis and as they prooesd in their assignment 
through in-service training?
A Yes, I think so. And, in fact, it's my opinion
that that groundwork can be laid but that that groundwork 
doesn't need to be inconsequential and that is that you can 
integrate your faculty and there is no way that these teachers 
can become totally ready to teach in an integrated situation 
until they are teaching in an integrated situation; and that 
if you have —  if you employ the knowledge that we have at 
our disposal right now about changing attitudes and facilitating

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Kastar - Direct
work habits and changing over behaviors of people in organisa­
tional structures such as school, if you utilise the knowledge 
we have right now, I would say that it would be, give an

leadership in the public schools, and I suppose we 
have that right here, I would aay that it would be no proble* 
at all in gross teres. I an talking about in general. Actually, 
you are going to have individual proto Ians, but the problems 
are nothing that the leadership can’t handle.

And, you see, it’s a natter of hierarchy of values.
If your values —  system starts with the highest value we have, 
it’s not to change the status quo, not to rock the boat, and 
you don't need administration, in ny book, but if your highest 
value is equal educational opportunity for every one of our 
citixena, if that's put up in first place, then you oan handle 
the problems administratively.
q All right. I believe you —  did you make any

does that conclude -~
A (interposing) I think that takes care of what

I have to say.
q  one more question I want to ask you, what are
your findings or comments regarding the government programs 
that the defendants have already had beginning in 1964 with 
regard to faculty orientation and preparation for integration?
A Kell, of course, I am speaking frem a present

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1 Hester - Direct 1439

prospective and I know they were trying to look into the 
future, but I think that such programs could have been far more 
effective had they involved far more of the staff and the 
entire school system. I have seen that done in school systems 
where entire staff, every single teacher, counselor, end 
administrator have been involved in in-service training program. 
And, that's just a beginning, beoeuee that kind of program 
can't quit in a year or year and a half, and it can't be just 
a token beginning. It has to continue day in, day out, sot 
as a matter of happenstance.

We do too much in education by accident, but es 
a matter of a planned program for integration, if that's your 
commitment —  if your oommltment is to make integration work, 
you will have a planned in-service planning program that 
can focus full force of the problems at hand of integration 
and that’s possible. And, in fact, more of it was possible 
with the money that was spent, in my opinion} of course, I am 
looking at, I say, through hindsight, but in my opinion more 
of it was possible than was dona.

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q All right. And, as I think you have said that
integration shouldn't —  integration does not have to wait 

for that?
A Oh, heavens no. I think that that would be
totall inadvisable as a policy.

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Kester - Direct 1440

q gow, in terse of —  in term* of faculty integration
you mentioned that —  oouple of tarns in terms of ratios, ration 
of teachers employed in the total system or ratio of pupils 
in the total system. Which did you embrace as the most 
desirable concept?
A I would endorse the policy that mould —  that mould
be based upon the ratio of pupils in a system, personally.
And, in this instance, that means me'd hams to find some more 
black teachers, because me don't have comparable black-white 
teacher ratios as ms do black and white pupils, but 
q {interposing) *hat is the reason?
A That is the basis of my personal opinion?
q what is the basis, reasoning behind that opinion?
A Well, because I think if me are going to follow
through on our basic premise that the school system as a 
social institution should reflect the life that exists outside, 
then when we have existing in the system blade children end 
white children in certain proportions, they look also to the 
people who teach then, and if they see a dominant white 
culture, they are —  they can only oome to the conclusion 
that, "What I would ultimately evidently like to be according 
to these people's model is a white nan." In other words, 
the teachers play the role os play models —  role models for 
students, and it just seems to me to be consistent.

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Q What a re  yo u r f in d in g s  w ith  re g a rd  to  Bite s « le c ti< {n

and e x p a n sio n ?

>' ap p ears  t o  me th a t  in  th e  co u p le  o f  in s ta n c e s

where s i t e  s e l e c t i o n  has been a q u e s t io n , t h a t  th e  S ch o o l B oard  

in  i t s  d e c is io n s  f e l l  in to  an o ld  t r a p  —  i f  i t  was indeed a 

t r a p  and n o t a d e sig n  —  and t h a t  i s  —  Coletaan p o in te d  t h i s  

o u t q u ite  a d e q u a te ly  bo —  th e  r a c i a l  b a la n ce  in  th e  p u b lic  

s ch o o ls  —  o r  r a c i a l  i s o l a t i o n  in  p u b lic  s c h o o l s ,  e x cu se  me, — 

t h a t  th e  p r a c t i c e  o f  l o c a t i n g  s c h o o ls  in  r a c i a l l y  s e g re g a te d  

com m unities 1 b go in g  to  have an e x tre m e , p ro b ab le  end r e s u l t :  

you a r e  go in g  to  have a s e g re g a te d  s c h o o l . And one o f  th e  

q u ic k e s t  ways to  b reak  down r a c i a l  s e g r e g a tio n  in  yo u r system  

I s  to  u u lld  s c h o o l s .

Now, b u ild in g  s ch o o ls  by th em selv es won’ t  acco m p lish  

i n t e g r a t i o n .  I  want t h i s  c l e a r .  But when you b u ild  s c h o o ls ,  

you d o n 't  dump theta in to  r a c i a l l y  s e g re g a te d  com m u n ities.

You s i t u a t e  th o se  s ch o o ls  very  c a r e f u l l y  so  t h a t  p lan n in g  

in  th e  f u tu re  you can  a t  l e a s t  work arou n d , by zon in g and o th e r  

m eans, any r a c i a l  c o n c e n tra t io n s  in  r e s id e n c e s  t h a t  would 

o c c u r ;  and I  th in k  th e  S ch o o l B oard h ere  was am iss in  not 

s e e in g  t h i s  p o s s i b i l i t y .

Any tim e you tak e  a b la ck  h ou sin g p r o j e c t  and 

put a s c h o o l in  th e  m iddle o f  i t ,  e s s e n t i a l l y  you a re  go in g  

to  have a b la ck  s c h o o l .

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Easter - Direct 1 & 4 2

q You are referring to the Piney wood?
A Pitney Wood School, that's a perfect e x a m p l e .  B o a t,

you understand I notice this didn’t happen every year, but 
what I am saying is that alert, astute, educational leadership 
would say, comaitted to equal educational opportunity and 
integration in the schools, would have done differently, in 

my opinion.
q All right. How about the location of the pre­
dominantly white Clifton Hills?
A Well, relocation of it, that's the same thing;
just the other side of the coin, only this side is white. I 
mean, you get segregation either direction.
q Would you say that there is any evidence at all
that the Chattanooga school system has located its schools 
or expanded its schools in such a way as to foster integration? 
A No. I find no evidence. I find evidence to the
contrary in the two instances mentioned. 
q All right. Sow, then —
A (Interposing) Mow, I am talking about results.

»
I don't know whether they, you know, I can't say that I was 
in a School Board meeting end say that they planned it this 
way. All I m  saying is that they might as well have planned

i t  t h i s  way.

q okay. In general, what are your conclusions

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Raster - Direct 1443
regarding the state of integration in the Chattanooga school 
system, in suasaary?
A It is ay opinion that the Chattanooga public
schools has essentially the sane setup as it had under the 
dual system, that is, essentially today they have a segregated 
school systea. And, this didn't happen by accident in »y 
opinion, either.

But, this has happened by the lack of affirmative 
leadership, on whose part I don't know. But, the School Board 
member today said they made the decisions. So, I would say 
that —  that the dual system that exists in 1971 is essentially 
the same remains of the system they had before they were 
ordered to desegregate and that no action I can see, none of 
the quite practical, available alternatives that they had all 
during the years were employed by the School Board to eliminate 
desegregation in this system.

OOSS EXAMINATION
BY HR. WITT:
Q Dr. Kester, how old are you?
A Thirty-three.
Q When did you enter Oklahoma Baptist University?
A 1959. Excuse me, 1955. Actually it was the
yea, December 19, '55.
Q A ll  right. What was the next step in your



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educational —
A (Interposing) I went to teaching.
Q fftiere?

Raster - Cross 1444

A In Oklahoma City, United States Grant High School.

Q
there?

I believe you indicated that you taught psychology

A And sociology and English and Latin.
Q
next step?

And, then, your next step was —  what was your

A Then I went into the United States Army.
0 When did you go in the Army?
A February, 1962.
Q Where were you assigned?
A Tort ord, California.
Q What was your responsibility?
A Well, they were numerous as they are when you have
an assortment of officers in a training canter. That's where 
I was assigned so I began as a training officer in the 
company and went frost there to assistant battalion S3 and 
to instructor on a variety of military operations such as 
training fire, which is rifle training, automatic rifle fire, 
land navigation, and then I went into slot company commander. 
I was again, battalion S3.
Q Beg your pardon.

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Kftsttr - Cross 1445
A Excuse me, in charge of training and operations.
Guess that about ooveri the duties I had. I left as company 
co— ander when I was —
Q (Interposing) When did you terminate your Army
service?
A In November of 1943, I think it was.
0 November 1963? how long were you in the Army?
A About 22 months, 21 or 22 months active duty. I
was on active reserve sometime before and after with the 
National Guard and the United States Army Reserve.
Q All right. Then, what was your next —  where did
you go frost in November, 1963?
A I came back to Oklahoma and began working for the
Oklahoma Military Department.
Q What?
A Oklahoma Military Department, which is a state
government organisation and substitute teaching in the 

elementary schools; but I was fully employed though I had days 
off by the State of Oklahoma in an administrative position.
Q And your, 1 believe your next assignment was at
the Harding High School in —
A (Interposing) Then I, again, teaching at Harding
High School.
Q You taught there for two years?

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A Ho, I didn't. I taught in Harding High School for
| half a year. At the time I was at Harding High School, we had 
a political action by teachers in which those of yea who 
remember the history of education remember that teachers all 
over the country were Moving in a Militant Manner. And Okla­
homa was one of those situations and X was elected chairman 
of the Oklahoma City Classroom Teachers Organisation to move 
for better conditions in education in the Qklahana City area.

And, at the end of the school term, in protest 
partly and in protest to the present system's policies, I 
resigned as a teacher in the Oklahoma city system and attended 
a Military school at Fort Banning, Georgia, while being 
employed by the State of Oklahoma Military Department.
Q When did you resign?
A In February, 1965.
Q You resigned during the middle of the school year?
A Yes.
Q All right. Then, what did you say you did?
A Then I went to Fort Banning, Georgia.
Q You went back on active duty?
A Well, it was active duty through the Hational Guard.
They have kind —  you are on active duty but you are being 
paid by the Hational Guard.
Q All right. Bow long did you remain in that

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•aployment?
A Till the end of the sueer and then X went hack
into education and was called by the Superintendent of Schools 
in Norman, Oklahoma. And, X was asked to come there and teach
psychology.

I wanted to do that anyway, because that put me 
back in Norman share the University of Oklahoma was and I could 
take night courses on my master's degree.
Q I see. Then —
A (Interposing) Then I moved to Norman, Oklahoma,
you see.
Q All right. And, you took your master's in
educational psychology while you were there?
A That's right.
Q Allied area in school administration and curriculum?
A Because X was informed during the year t  < re at
Norman that I would be asked to be principal of the Oklahoma 
University Laboratory High School.
Q were you made the principal of the laboratory?
A I was.
0 High School? Laboratory High School?
A It'a a secondary school. It's called University
of Oklahoma Secondary School, because we have grades seven 
through twelve in one complex.

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Kester - Cross 1448
Q The tarn —  you had courses in school adeinistratioc
but what is your understanding of that tan?

^ fcai.1 , school actoilnistr&tlon in part involves
management of the school system, in part involves educational 
leadership; that is, getting the willing cooperation of people 
to follow whatever ideas, ideals, plans that you as an educa­
tional leader develop; involves development of curriculum.
In fact, a school administrator’s job can involve many, many, 
many things depende t on what level of the administration.

In other words, we have line administration, staff 
administration, so there are many dimensions to the job.
But these are broad areas, particularly educational leadership 
and management and planning and program development.
Q tdxat in your course, irtiat does educational leader­
ship say about being responsive to the constituency that the 
school administrator works for?

A It becomes a morel crisis in the lives of many
school administrators, 1  an sure, to be responsive to the 
requests of the verbal elements in any community and to pursue 
a course of action to which you are morally ccssaitted. So I 
would say that the school —  the school administration training 
r have had says that when it comes to making a decision about 
a moral commitment you have as opposed to catering to the 
«aro&i clement in a jnunity, whether it be the majority or

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not, then you follow the morel cotaa!taunt.
Q Well, would you recognise thet your constituency
night have moral commitments, too?
A Very definitely.
Q What consideration in providing
leadership would you give to the moral commitment of the
people that you are attempting to provide the leadership for?
A Think primarily in my effort to be one of enlighten­
ing that individual about my aspects or my perception of the 
commitment in question which I take it is school integration.
Q Would you —  I aa speaking in general terms, now.
A Tes.
Q Would you listen to constituents1 explanation of
the basis for their moral commitments?
A Very definitely.
Q All right. Now, if these came in conflict, would
you seek to reconcile them?
A Yea.

tester - Crosc 1449

Q Would you ever ignore your constituency in attamptii^j
to provide educational leadership?
A No, not ignore. I may move counter to their
particular commitment.
Q Under what circumstances would you do this?
A Well, in terms of —  well, let me use an example.

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la taraa of *y cooaitaent to providing equal educational 
opportunity, I f.lt, for InoUnoo. con.titu.ncy « .  ad.pu.t.iy 
represents by th. School Bcrd, ^ y  or not b., but. If 
it « re «nd th. School Bc«d a <Ud*lon th.t th.y « „
SOin, to hindr, iM p m im  .chcol intonation and tl»y m u  not 
alio. M  to e— rci.. W t a r S i p  i, th. .y.t«, i «, m t x m U  w  
have to resign.

° Do yon in your under.tending of educational
administration and your understanding of the best knowledge 
With roqard to providing .tacatioMl l.^Wr^lp, ^  ^
attach a , n . U r  valu. to your judg^nt than that of a board 
that you represent?

A well. I'd aay my judgment together with the staff
with shoe I work, *y ooli-gue.. And, 1  certainly would attach 
more value to those judgment, than I would the judgment of the 
Board, you see, I think the Board of Education ought to be 
responsive to the educational leadership of trained educators.

0  °° thiak that the educational leederahip would
be responsive to educational leadership of the Board?

Well, you talk about educational leadership of the 
Board. I am not sure we can concur there, but you said 
educational leadership of the Board is different than educa­
tional —  trained school leaders. But definitely I think they 
should be responsive but when you w a n  complete compliance, if

tester - Cross

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’ j that’s what you mean, then, no. I don't think thsy ought to 
:i completely comply with leadership of the Board of Education.
1 It's not my understanding of the relationship

between school leadership and Boards of Education at all.
' Q How, does your education in the field of school

! Kester - Cross 1451

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administration give you any guidelines as to whether or not 
a Board of Education should give consideration to the taxpayers 
that support the particular system?
A Yes, I am sure they not only should but must.
Q Well, I am speaking, now, of primarily to your
education, in the field of educational administration.
A This is just —  yes, all right, yes.
Q What do the experts sey about this?
A Certainly your communicative relationships are
important.

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Q Are there —
A (Interposing)
in school administration.
Q (Interposing)
opinions, understandings.
A Yes, sir.
Q Of educational
A (Interposing)
Q (Continuing)

But, my expertise is not necessarily 
I have just had a minimal experience 
I am merely asking you about your

Very well.
—  administration and leadership.

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Kester - Cross 1452

A Yt«.
q is there say circwsstance based upon your
knowledge and your information in that area whan a school board 
would be justified in completely ignoring the wishes of its 
constituency?
A Again, I don't think that under any circumstances
a decision maker ought to ignore vital components of the 
decision-making process. When you say ignore, that, you know —  
but, if you say should they counter with nonconplianoe, yes, 
when it's a natter of a moral stand I think the School Board 
should have the occasion to do so.

MR. WILLIAMS; I didn't hear that last —
THE WITNESS: (Interposing) I said that —
MR. WILLIAMS: (Interposing) the last phrase.
THE WITNESS: I can't remember what my last

phrase was, now.

MR. WILLIAMS: Forget it.
BY MR. WITT:
q All right. How does —  how does an educational
administrator ascertain the wishes of the people that he 
repre sents?
A Well —

MR. WILLIAMS: (Interposing) May it please the
Court, I nave let this go along, but I object to this because



Raster - Cross 1453

A
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whether a school board is not entitled to cater to a wish

i of the community, that there be noncaepliance with the Constitu-
i tion, this is irrelevant.
S MR. WITT: I haven't asked him that.
() HR. WILLIAMS 1 Well, that seems to be the line
; of questioning that he is pursuing.

• 8 MR. WITT: I beg your pardon.
9 THE COURT: Well, if we are to get around to the

10 question of the problem before the Court, that is the desegrega-
! 1 tion of the schools, I think it would be more helpful rather

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| n MR. WITT: May it please the Court, Or. Raster has

11
in about ten days looked at this school system and has passed

i
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i 16 and I think that we are entitled to know the basis of the manner

17 in which he acquired his expertise.
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i 18 THE COURT: Yes, you can question him about those

• IQ natters, but ask him generally as to hie attitude about matters

2 0
that are unrelated to the problems before us, that's the

21
problem of segregation or desegregation, are not helpful. He

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may have opinions about a variety of matters which are not

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related to this lawsuit.
BY MR. WITT:

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Q Dr. Kester, in the school systems with which you

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ore familiar, who has responsibility for tba —  fcha 1 *9 « 1  

responsibility for the operation of the school system?
A The School Board.
Q All right. Mow, after you got your master’s
at the University of Oklahoma, shat was your nest assignment?
A Well, I received m y master's degree. Then I mas
assigned as principal of the University of Oklahoma Secondary 
School for a year.
q what mere your reaeons for leaving that assignment?
A I had always had in mind moving into a decision­
making role, what I consider to be a decision-making role, 
as a role in which I reached more people who in tern could 
influence education. So teaching in an institution of higher 
education had been my goal and near the end of the first year 
1  was offered a position as assistant professor of education 
and psychology at Oklahoma Baptist University, which was my 
old alma mater, at a considerable increase in salary in addition 
to its being my professional goal.

And so, I oonferted with —  with the director of 
the laboratory school and was on good terms permitted to leave 
the school and accept the new position.
Q How long were you in that responsibility?
A For two years until I completed »y Ph.D.
q So you were teaching end getting your Ph.D at the

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Keater - Cross 
same time?
A That's right, yea.
q All right. And, what was the occasion for you

leaving that assignment?
a Well, Baptist University is a small liberal arts
college, rather limited in its exposure in terms of making an 
impact on total education. And, so, I was referred by by 
one of ay professors, Dr. Glenn Snyder, well-kncam leader in 
school desegregation and influence on my life, to the University 

ii of Miami and Dr. Herbert Way, who is a well-known figure in
school desegregation, because of my interest in this particular

13 U area.
, ,, He talked with Dr. Way and Dr. Way talked with me

and said, We'd like to have you at the University of Miami.* 
Was a considerably larger university and major university and 
go I was offered a good position and again, considerable 
increase in salary, and I accepted it.
q You said because of "my interest in this particular

«rea." what particular area?

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I said school desegregation.
All right. I did not hear you.

Yes.
And then your interest in school desegregation

was the reason for you moving?

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A Oh, &b»olut«ly not only that reason. I mentioned
also the University of Miami was a larger university, a major 
university, and, of ooorss, in ay field of educational 
psychology, the influence of wanting a major university exceeds 
the influence of one at a very snail university unless that 
ssaall university is highly prestigious such as Case or Oberlin. 
q All right. Sow, you have —  in what situations
have you served? In what school systens have you had an 
opportunity to observe first hand?
A The Berkeley school system, Berkeley, C a lifo rn ia .

q A l l  r ig h t .  When was th is ?

A In 19 —  no, excuse me, 1970; Maxafa of 1970. And
th is  was an informal observation on my part at that time and,
again, in  June of 1971, Informal observation on my part. 
q Berkeley, again?
A Yes. Dade County p u b lic  schools, one in  which I

am most invo lve d , because of my being there ; Shawnee, Oklahoma; 

Oklahoma C it y ,  Norman p u b lic  schools —  the schools in  the 

area whore I worked.
q Any other school system?
A Broward county school, north —  Broward

schools, p a rt ic u la r ly  the North school complex. I  have seen i t  

in operation several tim es. Then, o f course, an educator 

simply sometimes stops in  to  schools as he tra v e ls  across the

Kester - Cross 1456

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country, and I have looked into seme of the schools in
Louisiana.
Q What schools in Louisiana?
A
Parish.

Well, the Washington Parish school, the Concordia

Q What are you saying?
A Washington Parish, that's a county.
Q What is —
A (Interposing) Concordia Parish.
Q All right. What size school system is Concordia?
A Well, county system. I think it has something
like, oh, 8,000 pupils, rather small.
Q All right. What size is Washington Parish?
A I don't remember the exact enrollment in Washington
Parish, because I was particularly concerned there with a 
large elementary school that had an enrollment of something, 
to the best of my memory, 1,100.
Q All right. Any other school systems of which
you have had first-hand knowledge? Know anything about 
Washington, D. C., first hand?
A No.
Q
hand?

Know anything about Nashville, Tennessee, first

A No.

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Kester - Cross 145®
0 Know anything about Atlanta, Georgia, first hand?
A No.
Q Know anything about Memphis, Tennessee, first
hand?
A NO.
Q Knoxville, Tennessee?
A No.
Q Any othars?
A No, that 1 can think of right offhand.
Q I naan, any othars now that you know about that
you haven't mentioned?
A Not that I can think of. Thera nay be s o m ,
but you'd have to jar m j memory.
Q All right. Would —
A (Interposing) Well, Chattanooga, of course.
Q Yes, yes. What is the qualifications for Member­
ship in the American Psychological Association?

i

A wall, there are a variety of memberships.
Regular membership involves that you have either two.years, 
experience and a master's degree in psychology, two-years'

experience in the field of psychology, recommendations from 
psychologists, practicing psychologists, or they have a 
doctor's degree in the area of psychology; and recommendations 
and have done a dissertation in that area and been employed

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Kestar - Cross 1459

essentially in a position that makes use of psychology. 
q How many members would this organisation have?
A You know, I don’t really know, but I think that
it has something like, gosh, I really don’t know, maybe 30,000, 
maybe 30,000, but I am not sure how many practicing psychologi 
there are who can pay a 50-dollar-a-yeer fee.

q Now, what is  the q u a lif ic a t io n  fo r membership in
i

the American Educational Research Association?

A T h a t’ s an association th a t 's  composed p rim a rily

of p ra c tic in g  educational researchers, th a t i s ,  people who 

have e ith e r by v irtu e  of th e ir  employment or th e ir  education 

or u su a lly  a combination of both, an in te re s t in  research th a t ’ 

applied to  education —  educational research. 

q what sise organisation is  it ?

A Gosh, I have no idea on that one. I really don’t

know.

q A l l  r ig h t .  What’ s the Southeastern Psychological

Association?

A These are general subdivisions of —  Southeastern

and Southwestern. Both of them are the same th in g , of the 

American Psychological Association and are sim ply reg io na l 

associations. What th is  does provide fo r us is  an opportunity 

to  have an extended form of our ideas, research, and so on; 

get to  know each other a l i t t l e  b e tte r than you do at the

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Seeter - Cross 1460
rational convention.

When you have s national c o n v e n tio n , they arc
usually so large you don't gat to neat people* people that have 
profound influence in your discipline. And, so, your regional 
associations provide you just a little bit s o n  compact way 
to get together. They have basically the seas requirements 
as your national association does with the exception of the 
membership requirement for the doctorate, though, specified in 
Southwestern, for instance, but generally is in Southeastern.

People are members of the American Psychological 
Association can generally qualify for the regional associations 
without any problem. I belong to the two that I mentioned 
simply because I have associates in both regions and I like to 
be involved in both areas. I began in Southwestern Psychologic- 
Association and I wanted to keep up some of my contacts there, 
so I continued membership there. And, then I joined South­
eastern Psychological Association when I went to Florida.
Q I notice you have an article on —  has to do with
teacher expectation?
A Yes.
Q In what sense is teacher expectation important to
secondary pupils?
A In what sense is it important?
Q Yes.

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Kestar - Crocs I A $ 1

A Hell, the expectation phenomenon is identified
originally by Merton as the self-fulfilling prophecyj and in 
educational areas by Jaoobson and aoaenthal, it*s kind of an 
elusive thing in terms of being able to replicate it 
But, it appears that in addition to other variables in the 
educating process, that a teacher's expectations affect a 
pupil's performance.

How, it's certainly more profound in elementary

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school, early elementary school, thin it is in secondary school. 
The findings of my research were that, and I can identify some 
of the eliminating factors to help explain why I didn't get 
a replication of Jacobson's findings —  but the findings in 
my research were that I didn't get any significant change in 
people attitude than achievement by taacher expectations at 
the secondary school level? bet that I did get a significant

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change in the verbal cc— unication to the students to the 
extent that I had continued the experimentation over a year's 
period of time and had I been able to get into every cycle 
class that that secondary school student was in and had I been 
able to influence also the expectations of parents, my

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theoretical «todel is that we stay have something there that's 
quite important. Performance of anyone is at least theoretically 
if not empirically based on Jacobson's and Rosenthal1s 
q (Interposing) You are fading away.

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Kester - Cross 1462
A Excuse me. That performance of anyone is in
part due to expectations that others set for then.
0  Hoe, you are speaking, then, of the teacher's
expectation of the pupil, what the pupil thinks the teacher 
expects of hin?
A h o . I guess I'd better clarify the research. I
didn't know 1  was going to recount the research on —
Q (Interposing) I an really trying to —
A (Interposing) Mhat I did was set up expectations
about the pupil's ability level. That was the area of expecta­
tion. In other words, we took control group, experimental 
group in each class end the control group was not identified to 
the teacher? but the experimental group was, and the teachers 
then were told that these kids, who were by my testing simply 
in the average range, which identified as average, psycho- 
metrically the teachers vers told these were exceptionally 
bright.

Now, then, what Rosenthal and Jacobson found in 
the elementary school was, as the result of setting up these 
expectations, pupils' IQ'a lncr«aMKi ^  their achievement

i
level increased significantly over controlled pupils. I tried

ithis with a secondary school population and since these
i

teachers did not have the student all day long, the expecta­
tions were not set up with every teacher.

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Kester - Cross 1463

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But, on a limited basis, my hypotheses were that 
teacher expectations would affect pupil performance in the 
secondary level, too. But, I did not find this to be so.
Q Are you saying that your research indicates that
if the teacher expects the pupils to perform at a high level 
that this is communicated to the pupil and the pupil in some 
way responds by performing at that level.
A That was the theoretical model, but my research
did not indicate that with my sample and with the length of 
time that I performed and the other variable conditions such 
as only taking two classes out of the situation they had during 
the day, that it did in fact affect their performance in 
math and English.

i
q  Where —  pardon me —  where was this research
conducted?
A In the Midwest City, Putnam City in Oklahoma
City schools —  excuse me, Midwest City, Putnam City, and 
Norman, Oklahoma, schools.
Q How large a city is Midwest City?
A Oh, I don't know, over 100,000.
Q And Norman?
A Norman's about 60,000, and Putnam City is somewhat
smaller than both of those, I don't know, 45,000. 
q .. All right. Did —  then, based upon this research,

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if you had ths ohoios and as an educational administrator, 
can you evaluate teachers in any way to ascertain in advance 
how their expectations can assist then in their teaching role?
A Well, I an not sure shat you wane. Z have to
interpret, here. X can evaluate their attitude or expectations 

now, in teres of determining how that will assist 
or deter then, I have soma logical models that X can apply to 
that; that is, for instance, if X find that a teacher's 
expectations for a black pupil, as an example, is that he is 

aiid can't psrforn anyway, based on the Rosenthal and 
Jacobson data particularly, if this is an a lama at ary school 
black pupil then X can suspect if the Rosenthal effect is 
legitimate, that this teacher's attitude will affect his 
performance in s negative way.
Q All right. Mow, let's assuae that you have a

I teacher that you evaluated that fits your description.
A uh-huh.
Q Mould you as you had a choice —
A (Interposing) Uh-huh.
q Mould you place that teacher in a Megro school
if you had a choice?
A If X had a choice?
Q Yes.
A Mali, it depends on what ay primary goal was.

Xesfcar - Cross 1464

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If ay primary goal was to capitalist on a rather elusive 
phenomenon such as expectations as opposed to a rather sound 
principle of equal educational opportunity, yes, I would place 
her in that school and simultaneous in-service training program 
to change that attitude pattern to educate her, because she 
doesn't understand. If she has the general attitude that black 
pupils are dumb and they can't learn, then she doesn't know —  

she hasn't done her homework.
Q what if you had a choice with another teacher
who did indicate that she had a positive attitude toward, which
one would you pick?
A If maintaining racial segregation, I'd still choose
the former.
q I beg your pardon?
A If it meant maintaining racial segregation to choos
the latter, I'd still choose the former.
q if you will —  your question without the modifica­

tion, just answer.
A I can’t answer without modification honestly,
because, you see, you are asking me for a hierarchy ot values, 

Mr. Witt. In other words, I value school integration more than 
I value the evidence from an elusive phenomenon in research.
It may well be, there, I think 2 can educate a teacner out of 
that attitude, in other words, if I have her in an integrated

Kestez - Cross 1465

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situation.
0  If I understand you correctly and perhaps 1  am
not, you are saying that between —  if you had a choice between 
a teacher that thought it would be —  white students —  well, 
black —
A (Interposing) Yes.
Q (Continuing) —  if she thought white students
were dumb and another teacher that didn't, and you had a choice, 
you would take —  put the teacher in the spot that thought vhit« 
students were dumb and placed the one that didn't think they 
were, in order to achieve desegregation?
A With the qualifications that that desegregation
could not be implemented by choosing the teacher who thought 
that white or black students were dumb, then I would choose 
the value or the goal of desegregation above the data on that 
teacher'a particular attitude about that, because, as I said, 
desegregation cannot occur until we nix the bodies. Integration 
cannot occur until ws mix the bodies, but changes in teachers' 
attitudes can occur. You can teach old dogs or older dogs, 
some of them aren't too old —  twenty-three, twenty-four, 

twenty-five, thirty, forty —  you can teach then new tricks.
They can learn. At least it's been my experience. Teachers 
are not durables, they are not automatons.
0 Then how, if you had to split a faculty of 100

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Kester - Cross 1467

faculty and transfax 40 pupils, wouldn't you ha vs sons 
procaduxe whereby you try to determine how those teachers fslt 
with regard to the sxpectstion Isvsl of the students that they 
are going to teach?
A I eight well do so.
Q How would you go about doing that?
A Well, I haven't given that as such thought as
ny colleague has here.
Q That's what I thought. In your hierarchy of
values is there any value that you place —  any value that 
you place higher in your value system then desegregation?
A Wall, when —  yes, X say yes.
Q In the field of education?
A In the field of education, yes, I'd sey pupil
learning.
Q Are you saying that if in some situation that
you would accept segregation in order —  if you were convinced 
that the pupil learning would be greater in a segregated 
situation?
A If I were convinced that that would be so, I
would have to be negligent of the research data that are 
available. So, you are asking ne sousthing that is contrary 
to fact. The facts are that the research data in education 
indicate that better learning occurs in an integrated situation

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for both whits and black.
Q I didn't —  9 0  ahead. i
A So, you are asking ns to testify to something
I know that's contrary to fact.
Q well, then, give ns a situation in which the pupil
learning would be implssentad as a higher —  by desegregation 
use your own experience.

jA Well, if it were that, pupil learning were not
implemented —  excuse me, were not enhanced by lntergration, 
then I may have to re-examine —  the point is that examining 
closely learning phenomenon in the public school and the 
research data that's available, I have rone to the conclusion 
that too often the beat possible education in preparation for 
life in our society is in a racially Integratad context. And, 
that's all I can say about it.
Q Than, you can't think of a situation in which
pupil learning would be more important to you than desegrega­
tion?
A Wall, that's not the point. I can't think of
a situation in which pupil learning is enhanced by segregation. 
0  But, you did say that pupil learning was more
important than desegregation?
A Think that's one of my ultimate commitments.
Q All right. Then, if pupil learning, under any

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Kestsr - Cross 1469
hypothesis or possibility could be substantially interfered 
with by desegregation, would you take that into consideration?
A Ho. Mali, I guess X em going to have to say that
when it c o m e s down to brass tacks that ay ultimate goal in 
pupil learning are to prepare the individual for full, 
productive, psychologically, sociologically healthy life la 
this society and that X see the n a y *  of, that students being 
able to adapt to the reality of the world outside the walls cI 
the school system as being educated in the integrated system; 
and that any short-term sacrifice that appears to be made in 
terms of achievement gained to sansthing like that on a 
controlled testing situation would be far outweighed by the 
ultimate benefit of hie developing the moral structure of living 
in a racially integrated school world. So, X guess X must 
place being educated in an integrated system shove any temporary 
or sporadic or even superficial loss or gain in testing soorea.

THE COURT: At bo ss convenient point in your
cross examination, I should like to take a recess,

MR. WITT: This suits me fine.
THE COURT: All right, let's take a 10-minute

recess.
(Thereupon, a recess was taken.)

C Dr. Kester, are you familiar with the book

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“Children in Crisis* by -- by Cols.
A By whom?
Q Cole, (spelling) C-o-l-e.
A No, I am not.
Q All right, sir. In your high school at Oklahoma
City in 1959, 1962, in /our plant, shat was the racial composi­
tion of the high school in Oklahoma City?
A I don't remember the total racial composition.
I know we had very few blacks in the school at that time.
0 All right. How, at Harding High School in Oklahoma
City in 1964-65, what was the racial composition of that school?
A
blacks.

Ms hsd, oh. I'd say, not more than 5 percent

Q
class?

What was the racial composition of your Latin

A It was 100 percent white.
Q Speech?
A I think my speech class was 1 0 0  percent white.
Q Psychology?
A I had two black students in that.
Q How many whites, approximately?
A
2 to 38.

Well, the class sixe was around 30, so I'd say

Q Norman High School in 1965-66, what was the racial

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Kester - Cross
2 f componltion?

A it was practically all white with the exception
of about 2 0  blades, there ware about 1 , 0 0 0  whites and 2 0  

blades.

Q All right, in the laboratory school at University
of Oklahoma, what was the racial composition?
A I'd say tha racial composition there was about
5 percent blade.
Q All right.
A Racial composition in tha community was about
5 percent, too.

Q All right. How, let*a —  let's aea, in Berkeley,
what's tha racial composition?
A m e  racial cosmos! tion in Berkeley, the best of
my memory. is something around —
Q (Interposing) Approximately.
A Oh, I think 30 percent.
Q Thirty percent?
A Thirty to forty.
Q Thirty to forty percent?
A (Witness moves heed up ang j

Q Where would you put the orientala in
oafcegorixation?

Hell, they are an extreme minority in Berkeley

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K*»t*r - Cross 1472
I think. I don't r seminar their being in this, anj
I don't put then in with that —  with the blade population.
In other words, we axe talking primarily about a hi-racial 
situation. We axe talking about school Integra***^x 
Q You axe not talking about white and non-white?
A Ho, not necessarily.
Q What about the Mexican and American?
A Well, of course, you change the locale end that
be conus a very critical problem.
Q I eean, Berkeley, in Berkeley?
A Oh, Z don't rnnwliai _
Q Substantial, insubstantial, or do you recall?
A Yes. there is a substantial number, certainly is,
in San Pranciaco.

0 But, this is not included in your 30 to 40 percent? 
It's understandable if you don't rnenmtmi it.
A Wall, I m  trying to rasewber whether I —  whether
I, with the figure 30 percent that Z —  that I recalled did 
include the Spanish-Beerlean population, but I don't think *0.
1 think —  maybe it did. I an really not sure. Mister —
Q (Interposing) What la the racial ccwposltion of
Dade County?
A out 20 percent black.
Q And when you use that term, you include —

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A (Interposing) I excluded the Cuban population
there. It's 33 percent Caban and the rest of tham are 
Caucasian.
Q The school systee X believe you Mentioned was
Dade County, is this correct?
A What, the school systee? Yes, Metropolitan
school systeas.

S\

It's a metropolitan county-type school system.
Any other school systems in that county?
Nell, they have districts.
Yes.
But, the Dade County is a metropolitan school 

system and then they hove subdistrict offices.
Q But, then your coaments were directed to the
public school population of the entire county, is that correct? 
A That's right.
Q What size, what number of students; Z think you
said, but I forgot approximately the Dade County —
A (Interposing) Oh, 240,000 quarter of a million,
something like that.
Q How, Shawnee, Oklahoma, what was the racial
composition in that sahool system?
A I really don't remember except that it was

Koster - Cross 1473

Q Sure
A It's
Q Any i
A Nell
Q Yes.
A But,

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integrated. X would say probably Shawnee only bad a racial 
composition of maybe, in the oo— anlty, of maybe 1 0  percent 
blacks. I am really not certain at all. That's just a cursory 
judgment based on being in their schools.
Q All right. In Harman, Oklahoma?
A It's a very minimal, there, I'd say probably the
racial composition of the city is something like 3 percent or 
so.
Q And Broward County?
A i really have no idea of the racial composition
of Broward County, of the total county; but Nova schools, in 
which I have been in, have a noticeably integrated situation 
where I'd say, probably, oh, 20 percent —  maybe not that much, 
maybe 1 0  or IS percent of the classes that X have observed 
in the Nova school have been integrated; have had, in other 
words, there has been about a 1 0  or 15 to 85 or 90 percent 
balance between black and the whites.
0 What would that school system's itidoat population
be?
A i don't know that either, totally. Nell —
Q (Interposing) dull, large?
A Okay, you are talking about the Nova School
particularly, because that's the one I have been most familiar. 
Q You are saying in?

Raster - Cross 1474

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1475
^ (Spelling) K-o-v-a, yea.
Q Is this just a school?
A That’s a school system. Has an elementary, junior,
senior high, university cooplex. it has grades kindergarten 
through Ph.D in one operation —  nongraded operation.
^ Tki* would be what, thousand students?
A I don't know what their college enrollment is

and I think their high school enrollraent is somewhere 
around 1 , 0 0 0  and they have, oh, in the two elementary schools, 
they have 1,400? and junior high school, probably five or six 
hundred, maybe three thousand students.
Q All right.

!M a In grades kindergarten through twelve. I have
no idea what their university population is, but I don't think 
it’s very large, because it’s not been operating very long.
Q All right. Now, r.noordia, vhat was the student
il.emulation there, approximately? You said the town was about 
3,000?

A Well* Ferriday —  no, I think I was talking about
tlM p a r is h  school sysfra, if I r — «b„r oorr.CLly. ^  flgur.s

would be very inaccurate because I was doing ny work primarily 
with one town and the parish, which was the major city in the 
parish.
Q What was the name of that town?

Keoter - Cross

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A Ferxiday.
Q Spell it.
A (Spelling) F-a-r-r-a-d-a-y, I think.
Q Mow, how large was that?
A It’s not a very large town.
Q Thousand?
A Oh, no, it’s larger than that.
Q Three thousand?
A Probably reach five, six, seven thousand, some­
where in there —  eight.
Q What vac the racial composition of Concordia —
I mean, of Ferriday.
A I think that probably it was 30 or 40 percent
black.

Xester - Cross 1476

Q Thirty or forty percent black?
A Yes, that is, again, just an awfully low estiaate.
Q Then I guess it's correct, you have never
evaluated a system that's approaching 50 —  50 percent black 
and white?
A That's true.
Q Now, in your research into teacher expectations,
did you determine that —  that the research into this area 
was unnecessary in desegregation situations or what conclusion 
did you coca to?

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A Veil, I think that all the research that indicates
such dimensions which are at least potentially important and 
this one I consider potentially important, are important in 
integration, desegregation. Think the psychological dimensions 
are the essence of the irfiole business of desegregation. So, I 

j not saying it’s not important. It's only as important as 
we make it, though, in other words, to the extent that we can 
legitimately apply, giving all the qualifying conditions, to 
that extent it's important to us. I think it's potentially 
important, but as I say, there's a long way to go on this 
research.
Q Well, are yon saying that it is important for the

I . - achar to expect the child to be able to learn?
A . iy opinion that it is important for tne
teacher to hold those kinds of expectations.
Q And then are you saying that if the teacher does
genuinely have these expectations for the pupil that the learninj 
process has a higher probability of success?
A living him many qualifying circumstances.
Q Just that one circumstance, it is affirmative
fact?
A No, I can't state that from the research, Mr. Witt.
Q I am trying to understand what research shows you.
A Well, research shows me that the phenomenon of

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teacher expectations is elusive; that at the present time has 
a great deal of speculation about it. But, the evidence is at 
least i»roc ising in terms of further investigation.

In other words, it's certainly generated a lot 
of investigation. And, I have talked with Rosenthal himself 
on two different occasions about —  about his research and 
same major objections to it and we still feel that it's 
promising.
0  Well, is it poseilia to evaluate teachers by any
means to determine to what degree they are capable of reflecting 
these expectations *l>out black children?
A There is no foolproof method.
Q Is there a method?
A We can ask for some attitude data and depending
on how they want to respond, honestly or otherwise, we can get 
some self-report information.
Q Any other method that you think of?
A Well, we M y  be able to get some in clinical
projective techniques, but that's highly impractical in an 
education setup.
Q What do you mean?
A Projective techniques are the kind of techniques
that —  that clinical psychologists use such as the Rorschach, 
the ATET, where the assumptions are that —  that conflicting

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attitudes that are basic to the personality structure are 
basically unconscious and that given a rather neutral object 
to respond to such as an ink blot or neutral picture situation, 
a person will read into that his personality. And, as I said, 
it’s a very ties-consuming, expensive process, and to «y 
knowledge hasn't been used to identify teacher expectations 
about desegregation. So, we have to rely pretty well on 
teacher report data.
Q All right. Now, as an educational adstini itrator
and you are structuring a high school frcxs scratch —
A (Interposing) Primarily an educational psychologic
Q You are an educational psychologist structuring
a high school or any school, elementary. Let's take an
elementary school from scratch. And, you are going to put 
2 0  teachers in it, and those 2 0 teachers are going to teach 
50 percent black and 50 percent white.
A Uh-huh.
Q Now, if that is your assignment, would you attempt
in advance of the assignment to determine what the teacher's 
attitudes were with reference to this expectation of black 
students and white students?

!
A Well, I don't think this one dimension —
Q * n osing) Would you do this one?
A Well, I am not sure that I would —  there may be

t.

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other things that would be wore pertinent. In other words, 
if I have to set this school up and I have got a weelr to get 
the school in operation —
Q (Interposing) I understood you to say that these
are the only two means that you know of to determine teacher 
expectation. I’m sorry, that's the way —
A (Interposing) Yes, but that's not ny point at all,
Mr. Witt. You are assuming that the sole criteria for ay 
developing my school is whether or not these teachers have 
these kinds of expectations.
Q Just taking one element, it's your responsibility
to staff this school. They are looking to you. You are the 
expert. You are the man that's qualified.

How, 600 elementary students, 50 percent black 
and 50 percent white, and you are to pick 20 teachers.
A And I can pick any 20 I want out of an indefinite
pool?
Q Right.
A Pine.

|Q Would you do anything about —  to determine their
expectation aspect?

i
A if there were many other things that permitted
me to have the time, yes, I might do that.
0 You have got plenty of time in my illustration.

Kester - Cross 14§0

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A Sura, i might do sans evaluation in that
I don't know what decisions I'd make on the kind of data I 
got, because, as I said, self-report data is extremely 
precarious in tents of decision-making.
Q All right. Mould you consider the clinical
approach?
A Well, probably.
Q Adequate resources?
A Probably not, because the research data of
Rosenthal and Jacobson isn't all that pervasive in term of its 
implication for educational practice, so I don't know that I 
would or not. I don't think I'd go to the expense of a clinical 
analysis of every teacher.
0  I don't think I asked you, do you have any
children, Or. Hester?
A No, I don't have.
Q All right. Now, do you recognise —  you referred
to —  unconscious in its effect upon a teacher's attitude?
A No, I haven't. I said that's what the clinical
assumption is in using protective

te c m iiq u e s .

Q All right. What does —  would you mind explaining
that?

A Yes, very definitely. You see, there are a
variety of schools of psychology and psychoanalysis is the

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school of psychology that identifies the central principle 
of all behavior; that is the essence of active as being 
unconscious versus conscious.

Noe, it doesn't happen to he the school of 
| psychology to which I adhere, and that's why I probably 
wouldn't go on with any clinical evaluation. Zt is one 
major dimension of psychology, then, and probably the most 
influential psychoanalysis, has had a great impact; and aa I 
said, its central thesis in terms of why people behave aa 
they have is that in order to understand why they behave, you 
have to get down to their unconscious problem and, of course, 
the classical methods advocated at first by Freud end his 
followers, and even in the old Freudians today are free 
association, dream analysis, and projective techniques gets 
at this thing too, so that that's the context ftw* which Z 
made the comments about projective techniques.

Now, the school of psychology or the major 
movement that I primarily adhere to myself is one called hums: 
tic psychology, personology, the school of psychology that 
emphasizes that man is in easenes able to control his motives

and is fully aware of them; that if you take a healthy 
individual he knows why he behaves aa he behaves unless he 
is neurotic. And, along this scale of neurotieiam, the lees 
neurotic the person is the more aware of his behavior.

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Kester - Cross 1483
In this school we have major proponents such as 

Carl Rogers, Abraham M&slou, Gordon Allport —  and Scott Kester 
Q All right. If you identified a tendency to be
neurotic in a teacher when you were structuring your 20-teacher 
school, would you pay any attention to that?
A Well, you understand, Mr. Witt, when you say have
I identified, I have to have it rather conclusively. I know 
of no instrument and no procedure short of a very expensive, 
elaborate procedure that would —  that would yield a definite 
conclusion about neuroticism. You take a major instrument 
that trims procedure for you such as the Minnesota Multi­
phasic Personality Inventory, in brief called the MMPI, in the 
hands of a skilled clinician, you can get a lot of data 
fro® this; but, you see, there are certain complications
with interpreting it in ter»s of surface level data. Let me 
give you an example. There have been some research studies 
done on certain dimensions of the MMPI that indicate that a 
person who has an extremely high achievement motive such as a 
business executive also scores rather high, significantly 
high, in fact, on the MMPI, on the paranoid scale. So that

2\ 1
if I were to simply interpret a score —  a single score on an 
MMPI as indicating neuroticis®, for instance, I'd be garruxoua
I wouldn't be making best use of this instrument. Go through
the whole clinical evaluation, cone up with an estimate of2 4

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imesons's being neurotic. There 
neuroses, and I don’t know anyone that’*

Kestar - Cross
and there are 
evaluated aa

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neurotic that in and of itself disqualified hie to be a good 
teacher or lawyer or doctor or acne other thing.
Q All right, Mow, we are back to ey hypothetical
of structuring this eleeertary school with 20 teachers. Would 
you interview the teachers before?
A Oh, very definitely.
q or would you delegate this to loainne else?
A Mo, I think I would like to interview thee if
possible. You understand, if you are going to give ne the 
latitude, in other words, I haws enough ties to go through 
things the way I’d like to. Certainly I’d like to interview

them.
q This would, in your opinion, this would be sound

decision?
A Yea.
q How long would you think those interviews would

normally take?
A I have no idea, depends on the people I an talking

with.
q Could you guess?
A Mo. Because you see, some interviews in a
clinical situation, for instance, take aa long es three to

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XMttr - Cross 1485
fits years if it's a therapy cliaioal iatarriw situation.
On tha other hand, in job employment interviews vs kind of let 
it go on the short end of the stick mainly because me don't 
usually have all this theoretiaal time you are allotting me.
So, it depends on the individual. I'd have to get into talking 
with them and when X came to whatever subjective conclusions 
I —  an objective that I could coma to in terms of total 
analysis, that's taking averything together in this interview
situation plus any other dimensions I'd evaluate, then I conduce 
the interviews. I'd interview ea long as I felt necessary and 
in tiros of time allotted to me to interview. 
q  Yes. In the process of this subjective end
objective judgment and again assuming that the racial caapoeiticjm 
of this school is going to be 50 percent bled, 50 percent 
white —
A (Interposing) Uh-huh.
Q (Continuing) —  would you employ e teacher
that had low expectations, s white teacher that had low 
expectations with regard to the black children?
A If I had an equally qualified white teacher end

every other dimension wa, comparable to this one except that 
that qualified teacher had high expectations for the black 
child, I'd prefer to have the one that had tha high expectation; 
but I don't consider that dimension ss being proven to be all

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that crucial, though. In whatever attack you are using it 
appears to be; but educationally I wouldn't spend that aueh 
tine on that one dimension with no nore evidence in favor of 
it than exists in the literature.
q  But, assume that the situation, the hypothetical
in which the teacher that you are interviewing clearly in 
your judgment, subjective-objective, whatever it may be, 
baaed on whatever technique you want to use, you cose to the 
conclusion that that white teacher has low expectations for 
Negro students, black students, and on the other hand, you have 
another white teacher that has high expectations for bleak 
students, which one would you hire?

MB. WILLIAMSt Repetitious. It's been answered 
about six times, and we have been 30 minutes on this one point.

MB. «Rft It's all right. May it please —
THE COURTS {Interposing) It does seem we are 

spending quite a bit of time on the question of weight and 
credibility of the witness.

MR. WITT: I am trying to delineate his essence
of his expert testimony and he has indicated that the staffing 
of the schools is not very difficult. And in my opinion what 
his testimony indicates —

THE WITHESS : (Interposing) Now, Mr. Witt, I
didn't say that it wasn't difficult. You understand what I said!

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was that whan you have competent people staffing and developing 
your school progra* that it's not insurmountably difficult.
If it weren’t difficult, you wouldn’t need trained leadership. 
You could go out on the street and pick up anybody say, 
"Coma in and be our superintendent. •
Q And doesn't the exercise of judgment such as
you describe take tine?
A It depends on —  yes, I would say that scam kind
of judgment does take sons tiaa. It depends —  how such tine 
I don't know, but I certainly don't think it takes 1 1  years.
Q Would you identify any clrcunstaneea baaed upon
your experience and your observation and your reeding that 
you could identify where e child has been harmed educationally 
as a result of the —  being taught by oroasorer teachers?
A I an sure I could, that there are isolated
j u t*tanoes where teacher conduct has harmed educationally or 
personally children; tout you saa the point slaply is that you 
hare identified e cross —  you here identified the crossover 
teacher as the causal variable, and I don't think the research 
that's been done to date on the effects of crossover teachers 
on pupils would justify our saying that fact that that was 
a crossover teacher, that was the critical variable in the 
educational outcome; because every instance we oan identify 
where you have a teaaher who —  another personality collapses

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or collapses in tarns of his ability to function in the 
classroon, it nay be independent of the racial situation 
altogether.

My point singly is that superior teachers tend 
to be superior teachers in either context, end when you have 
inferior teachers they tend to be inferior in either context.
Q  All right. Familiar with the body of research
knowledge with reference to crossover teachers?
A To a great extent, yes.
Q All right. Do you have that experience, research
and otherwise, acre you able to nasM the nore significant 
problems that racial crossover teachers have uneooatered?
A Tea. I think X can nans seen of the more
significant problona that they encounter. There is the problem 
of their being —  most of then are coached in term# of fears 
they have. And, of oourse, there was s recent study, kind of a 
not very scientific, but kind of looeely structured survey 
study that was published in the most recent issue of Phi Delta 
Kappa on this one thing. And, as I say, most of the -problems" 

that they encounter are problems associated with fears that 
they have.

Ti»e essence of this particular account that Z an 
thinking of was that in some instances their tm m tm  were 
justifiable. We can’t tell whether they engaged in a self

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Kester - Cross 1439
fulfilling prophecy or not. The study wasn't e wary controlled 
study. This point simply is that they have soma fears. They 
have fears, for instance, that the new principal, perhaps of 
another race, will not communicate with them. They can't 
coeszmnicate with him and he won't, perhaps, be fair to them 
if he is of a different race than they are.

They have some fears that are associated with the 
faculty that has remained in the place, being kind of entrenched 
and their not being able to take their place. They have some 
fears about how the students will, who are of a different 
race, will respond to them so that these are sosmt of the 
problems that have been expressed, at least seme of the fears 
that have been expreseed. And —  and discipline, of course, 
is another one that they express concern for. What will the 
discipline situation be when I am the teacher of another race?

I think that those are major complaints, fears, 
and supposedly problems that exist in —  with a croasover 
teacher.
q Has educational research or research in your
area indicated any means whereby these ideas, these problems, 
can be compensated for?
A Excuse me, compensated for in terms of alleviated?
Q Yea.
A Well, I don't think the research is in on that

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Kester - Cross 1490
at all. Rasaarch o n in-service training programs and their 
effectiveness is very incomplete. But, I would say that it 
is my opinion that psychology has provided an adequate basis 
to build in-service training programs that would —  that would 
help them alleviate such problems.

In and of thee mu Ives, school people probably can't 
do this without a rather extensive public information program, 
without involving the parents in training, too, for an integrct* 
school situation. And, I would say that an in-service training 
program that didn't have a rather extensive parental education 
program probably wasn't going to be as effective, not nearly 
as effective as one that did. But, that's just part of it.
It’s not saying we can't do it, because I don't know any 
school system that doesn't try to educate parents in some way 
or another. But, they just don't gat titem too involved.
Q  Dr. Kester, have you ever served as a school
superintendent?
A No, I have not, I am sorry.
q Have you ever served in any capacity where you

were directly to a public school district?

A I have not.
q  Dr. Kester, are you generally familiar with the
material in the psychological material in the area of 
desegregation?

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A Yas, I an.
Q Beading you a statement from the teachers' college
record.
A Uh-huh.
0 "Integration as a subjective and individual process 
involves attitudlnal changes and the removal of fears, hatreds, 
suspicions, stereotypes, and superstitions. Integration involves 
problems of personal choice, personal readiness, and personal 
stability. Its achievement necessarily requires a longer 
period of tine. It cannot came about overnight. It requires 
education and deals poignantly with the problems of changing
1 ei. ’s hearts and minds. Integration cannot be coerced by 
law or governmental authority."

Do you agree with that statement?
A Many parts of it.
Q All right. What parts don't you agree with?
A Well, I don't agree that integration cannot be
and the word coerced was used. You see, we have what we call 
connotations of words, and the person who used that does —  it's 
a point of view they used to express by coercion. I don't

think the law fifecessarily coerces. Think, you see, the law 
sets abstract standards for a population of people and when 
the laws of our land are made, they reflect to  th e  ^oopJe chat 
tui. i: keeping with our basic democratic tenets and that if

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you behave otherwise than our laws, please examine your 
behavior In the light of and I think that in a sense that —  

in that sense the laws of this land are capable of teaching 
morality. So, I disagree with the xhole use of the word 
"coerce. * I think it was an attempt to establish a point of 
view, a connotation rather than be objective about it.

You know, I do believe that morality in Its 
beginning can be legislated. In other words, you can gain 
a toe hold to ahange the moral complexion of the communityI
via the law. The lew is an expression of abstract morality.

How, in terms of its taking the long time, you 
see, perhaps the person would better have qualified his statemex 
if he had talked about ultimate integration, a Utopia; but I 
am jaying integration is one of those dimensional things, that 
is, it's a continual affair so that the beginning of in teg ratio; 
is the mixing of the bodies. And as they grow in their 
experience, being together as races, that the ultimate that 
they are talking about there, Utopia, would be the thing that 
we are all ultimately after and, yea, it will take time for 
that Utopian situation to be achieved.

But, it's not going to be achieved while we are 
living in segregation, I can guarantee you that, at least 
based on the data that I have at hand and my experience and 
un<fc-rstanding of behavior as a psychologist.

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Q But, this soutanes was very sinple?
A Yss, soswtisiss simplicity is tarribly deceptive
for ooRtplax situations.

Mould you think this statamnt is inoorrset?
The last part of it?
"Integration cannot be coerced by law or govern-

8 mental authority.”
9

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MB. WILLIAMS: Well, that's objected to as
being repetitious. I thought I understood the doctor's just

! explained that it was incorrect and respects in which it was 
9 incorrect.

MR. WITT; I wanted to be certain.
THE WITNESS: Tea, I believe it's incorrect in

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that way.
BY HR. WITT:
q Do you reoognime the quotation?
A Hot particularly.
q I an quoting from an article, speech by Dr.
Kenneth B. Clarke.
A Yea, I thought it was Clarke's words.
q In  the Teachers College Record entitled "Desegrega
tion, the Role of the Social Sciences.”

Would you tell the Court if you are faniliar with 
Dr- Clarke, who he is?

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A Yes, Or. Clarke is a social psychologist and
probably his ' * «t K.aown work In terms of popular publications 
is "Prejudice in Tour Child." X cm talking about popular 
publications in educational circles, "Ptrujudice in Tour 
Child."

Dr. Clarke is quite thoroughly versed in the 
social psychology of desegregation and although 1  take some 
exceptions to sons of his positions, is a very respected 
authority, profession st, believe, it*s NTC.
Q Do you know whether he is black or white?
A Tss, Dr. Clarke is a black —
Q (Interposing) Is Dr. Clarks the noted psychologist
that was quoted by the Supreme Court in Drown one?
A Yes.
Q You still think that his statement is incorrect?
A Yes.
Q Would you entertain the possibility that might be
correct? %

MR. WILLIAMS: I object. That's an attampt to
argue with the witness, if Your Honor plsass.

THE COURT: Wall, it doss seam that the guidelines
this Court is going to have to go by are written in Supreme 
Court opinions and not written by Dr. Clarke or —

MR. WITT: (Interposing) May it please the Court -

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THE COURT; (Continuing) —  other social 
psychologists.

MR. WITT; All through Dr. Kester*s testimony he 
has used the term "integrated" repeatedly, and, when the time 
comes for argument, I would hope —

THE WITNESS; (Interposing) Mr. Witt, may I 
clarify something?
BY MR. WITT;

Kester - Cross 1495

Q Yes.
A You see, Kenneth Clarke here has operationally
defined integration and in a context; and you will find some 
authorities will, in their operational definitions, distinguish 
between integration and desegregation and others will not.
As many times in literature as you find a definite distinction 
you will find them used interchangeably; and so, what I am 
saying is, it's, in ray opinion, in my way of thinking, fruitles 
to talk about integration ever occurring unless desegrega­
tion occurs, if you want to make that kind of distinction 
of mixing the races. You can't have integration until you hav« 
racial mixture. That's my contention. That's the basic
assumption on which all integration rests.

The Utopia of changed attitudes and living 
together in brotherly love and however else you want to 
express it can't occur until races are living together.

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Keater - Cress
q But you would, t r a m  your knowle— , you would
recognise thet the — iaion of the Sup*—  Court do.. hawe

some bearing upon this board'* —
A (Interposing) Yes, sir.
q (continuing) —  understanding?
A you better know it.
Q M l  right, do you u .  th. ten. in— r.tion and

(. . . rogation interchangeably?
A y.s , .t tlaa. I do, and other ti— a I —  *
distinction. D— nd, «  d u t  I * t  to U U  I -
talking about in— ration and desegregation.
Q do you raoogniM that Dr. Clark. di— r—  -ith
you, that delegation —  integration —  0— l.t.ly two -  
A (int.rpo.ing) — , I u«d.r.ta«d that he d o e , .

0  I. there respected authority that draw. thi.
distinction between desegregation and in— ration?
A I don't know that they do it blank.tly. M  I
s.y, a. ion, «  you — r.tio«lly define. 1  -ill diatingui- 
batween the two; but I think that in tans, of u— on cobs t u

tion anong educator, or a-ong P— !• ^  ^  « “ * *“  
talk about in— ration or desegregation and they will under
stand what you are talking about. If psychologically or 
educationally X have a .pacific purpoM in nind, — n I o «  
talk about th- distinction betw—  the two; but u  I told you.

1496

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1 Raster - Cross 1497
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I don't think that integration, as Dr. Clarke defines it, or 
as X define it, can be accomplished without his oounter- 
definition of desegregation.

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Q All right. I read you iron Dr. Clarke:
"For instance, there is the need for the psychologib 

as citizens and as professionals to help the pid?lie and its 
leaders to understand the difference between desegregation and 
integration. The President of the United States has repeatedly 
made statements which betray the confusion of these social and 
psychological processes."

Do you agree with that statement?
A No, not necessarily. You see, here is a problem
that I hope you understand among academicians, that a person 
in academic!a sometimes propagates dogma as if it's gospel; 
propagates gossip a< if it's gospel. So that though Mr.
Kenneth Clarke obviously believes that, his position wouldn't 
necessarily be shared by all of the social psychologists or 
psychologists in general.

And, I think that a distinction that he makes 
may at tiroes be useful, and I know well that he made that 
distinction and accused the President of not being clear and 
no doubt in his operational definitions, that distinction can 
be neatly made.

But, you see, you take any prominent psychologist,

ts

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lot no give you a good exanple of a m b  who — to—  Tory definite 
cowaltnanta and bo believes th—  and ho is B. F. Skinner.

But, not ovory psychologist is going to agroo 
with Skinner's position on bohavior. Modification is tin only 
way of loarning —  David Ansubel, in toms of looming thoory. 
Ton are not going to find every loarning theorist cosing any** 
whore near David Ansubol and Kenneth Clarke in toms of the 
distinction he has node between integration and desegregation. 
Operationally, though, I night agree with eost of what he aaye 
them. I don't think it*a Material one way oat another whether 
the President nade the earn distinction he snakes or not unless 
ha wishes to sake a point, you sea, if yoo have an ultinate 
goal to sake, an ultinate point that I wanted to illustrate, 
then it's necessary for us to start out on tha sssmi grounds of 
oomronl cation. And that's whoa tha so operational definitions

Kaster - Cross

17 are useful.
18 This is exactly what I an attempting to achieve.
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A Okay.
q Mould you admit that a Southern heard, attempting
to rely upon the definition of the tern "integration,* and 
'desegregation* as submit ted by Dr. geooeth Clarke in 1980

I
was a reasonable basis upon which to rely?

24 MR. WILLIAMS: X abject to that. That'# irrelevant
25 to the —  any issues hem, Tour Honor please.

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Raster - Cross 109
HR. WITT: I do not —
MR. WILLIAMS: (Interposing) Seme theoretical

Southern board, that's no evidence —
MR. WITT: (Interposing) Let's —
MR. WILLIAMS: (Continuing? —  upon which to

predicate any such question.
THE COURT: wall, to the extant that the question

of good faith or bad faith eight or night not be relevant,
X suppose that it could have sow thing to do with it. I an 
not sure that I understand how that would really ba relevant, 
though. Good faith or bad faith, question is whether or not 
this school systee coup lies with the lew.

MR. WITTi or. Raster, in what X perceived to be 
a rather careful way, characterised the defendant Board in its 
reaction to the Supreme Court decision, in a vary careful 
sumner, in a very devastating evaluation, as the Result of 
what I heard.

THE COURT: well, if the question of good faith
or bad faith, you feel that that's relevant, you nay ask the 
question.

THE WITNESS: X don't r— S— hST the question.
BY MR. WITT:
Q : If in I960 you were attempting to —  you were on a
board like the Chattanooga Board, you ware attempting to

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Raster - Cross 154*6
determine the facts with regard to compliance with the Supreme 
Court's decree and you cam* upon this kind of language from 
soamoae as outstanding as Or. Clarke, would you assume that 
this was a valid consideration to give to a statenant like 
this? Would this be sons thing that you oould vnpscly rely 
upon?

M R . WILLIAMS I Was that a valid consideration?
BY MR. WITT:
Q The distinction between desegregation and
integration and the aspect of forcing integration that I have 
read to the witness.
A I think it would be a valid consideration, but
I don't think the interpretation that I would have ends of 
Kenneth Clarke at that tins aa well as now would have been 
reflected in the behavior as exhibited by the Board during the 
past 11 years. In other words, I can't see the correspondence 
between paying attention to the psychological dimensions of 
Kennsth Clarke's statement end the actions by the Board.
Q tfhat about —  I go back to the statement that
we spent seem time on. Can you relate that to this statement, 
"Integration cannot be coerced by law or ijovammsetaT 
authority"?
Ac*** . Wall, you see, whether it could or not, you are
talking about the Supreme Court decision and the —  like now,

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as an educator, I would have —  as an educational psyoholog 1st, 
I would have disagreed then as I disagree now; bat as X said 
or I would have said, "Wall, hut the law still says that 
whether X believe It's * possible* or not, it's the lew of the 
land.*
q May X ask you this question? Hava you read the
decision of the Supreme Coart of April the 20th, 1071, entitled 
'Swann against* —
A (Interposing) I haven't read the oosplete
decision, Mr. Hitt. I have reed reports of the decision. 
q is it your understanding of this decieion that
the Supreme Court of the United Staten requires this Board to < 
integrate?

MR. WILLIAMS* X am going to object, if Tour 
Honor please. It's not up to a witness to interpret the 
Supreme Court decisions of this —

MR. w m I  (Interposing) May it please the Court, 
X am not asking him to interpret it. X want to knee what his 
understanding is.

MR. WILLIAMS: What his VUMĵ rBtreading of it is,

though, is irrelevant, if Your Honor please. It*s not —
TIGS COURT: (Interposing) Allow it to the

extent that it might or might not have any extern* to the weight 
of his testimony.

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Raster - Cross 1562

THE WITNESS: Excuse me, whet the question

again.
BY MR. WITT;
q Do you understand the most recent decision of the
Supreme Court of the United States, Swann against Charlotte- 
Mecklenburg Board of Education, either your understanding that 
it requires integration in schools?
A In Clarke * s sense or ay sense?
q In your sense.
A Well, you see, I define it operationally different]y,
didn't I? I defined it as the elimination of racial isolation 
and discrimination of both faculty and students both, so you 
could not racially identify them as segregated schools and to 
the extent that the approximation was.

Now, the first part of my statement, I'd say 
yes, because, you see, I have said that desegregation and 
integration are essentially one and the sane in that operations i 
definition, that's why I say we can use it interchangeably. 
q  would you attach, in using the English language,
would you attach any significance to the fact that the 
Court went for 28 pages and didn't use the word you used, 
"desegregation," all along?
A And didn't use the word "integration"?
Q Right.

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Hester - Cross 1503

A It sasy or say not bo loyally significant, but Z
am unable to say that, because I don't know tbs rationale in 
tans of distinction that the hoard node ahead of tins. If 
the Board —  excuse ns, if the Court had decided what It 
operationally neaat by desegregation as oppoeed to integration, 
then I nay sake sane kind of judgneet, but, see, Z haven't read 
any Court decision or report of a Court decision that said,
"Hoe, we are using desegregation es differentiated free iafcCpr*- 
tion." I demit know that.
Q have you given any consideration to the State
action aspect of segregation?

MB. HLLIANS! i certainly object to that. Counsel 
is now going into a colloquy with the witness about legal 
natters, if Tour Honor please, and that's irrelevant to any 
issue in this osse.

MR. HITT: May it please the Court, the witness
has shown no reiuctanos to describe what be considers the 
appropriate renedy under —  for this Board, and covered back 
far ten years, and it asane to am he east have sane heels upon 
which to nske this kind of sn observation.

THE COURT x Restate your question.
BY MR. WITTt
Q Do you recognise the state aspect as it relates
to pupil segregation in public schools?

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tester - Cross 1534
A I em not sura I understand the question. that do
you mnan, the stats aspect? Mould you define that, pleaoe?
Q Tbs fact that the result* that you have referred
to rather frequently, that the results hate a oases, do they 
not?
A Tea, sir.
Q Mas, these results, sinos we are in a school
systan, affect schools?
A (Witness sorts head up and down.)
Q Mow, the Court has discussed the state aspect,
the relationship between the action of the state and the 
result of pupil segregation. Base you or are you swturs of this 
as a part of the prablsei?

MR. WILLIAMS I Sane objection, Tour Bauer.
THE wmBSSt Mr. Mitt, let aw —  let ee just 

say that I an not able to do anything but speculate about the 
causes of the hoard's actions. All X can do is look at the 
state of desegregation in the Chattanooga public schools now 
and say that it appears to ne, ns an educational expert, that 
there were alternatives available that would hares integrated 
the schools of Chattanooga or desegregated then. I an using 
the terms interchangeably, operationally defined here, and 
irrespective of state legal dimensions which X nay or nay not 
be aware of. **& #***&

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Kuter - Cross 1505
q All right. Too testified at length it seems to
ns with regard to the remits of pupil segregation in sections 
of tbs City which are —  haws concentrations of boosing 
projects?
A Oh-huh.

Q Did you not?
A tell. Z don't know that it was at length, but

did testify about that. That was s wary ninor part.

Q You did visit the Piaey woods sohoal?
A I did. yes.

Q You did visit the Piaey Woods School?

A Yes.

Q A H  black?
A Z visited every school in the 1#

Q Did you visit the Bell School?
A Yes.

Q Did you visit the Does lit eon School?

A I said Z visited every school in the ay*tan.

0 Tell ns. then, sir. where are the heosing

projects?
A Mall, I don't understand what you wean.

Q Did you identify housing projects as they

reidte —
A (Interposing) Tea. many then axe fight

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toitir - Cross 15«€
adjacent to tbs schools,
Q All right. Mow, wore yen —  soars yea not
critical of the racial disproportion la those schools?
A Ton ns on in my testinony?
Q *08.
A Yes.
Q Are you swags —  haws you boon advised as to shat
tho Saprsn Coart of tho Pal tod states had to say with 
reference to s eg rogation that was caused by jorari— antal 
action other than that of tho School Board?
A I have sons notion of that, z an net a legal
export on it, so —
Q (Interposing) Mhat is your notion of that?

HU. WILLIAMSi Bo, air. X think his notion is
irrelevant. Be said that ha was not a legal expert, if Poor 
Honor please, end Z don’t see haw that —  how he could testify 
to that.

TUB c o u r tt vail, if hs has Irnawlndgs of shat 
the opinion says about that, he nay any it. Xf he doesn't 
have that knowledge, he nay so state.

THE WXTMKSSt Yes, sir, Z don’t have the knowledge 
in legal terns, bat Z osa give yen ny inprassion. And that is 
that, of course, the school boards do not ohvionely have 
control over racial segregation in terns of residence. Bat,

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X««t«r - Cross 1397
it's ary contantioa that tbs schools a n  ths moat opportune 
social vshiclss ia onr society for beginning racial integration 
as evea Kenneth darks dsscritoas it, for beginning it. And, 
regardless of what other public agencies do, tbs schools b m  

a variety of nsans to offset far aoro dosogrogatioo Integration 
than has occurred ia this system.
Q Than you ara saying that ths schools, in your
opinion, the schools should bo ths last rums at of social change?

MR. Williams? if the Court ploaso, X object to 
that. That's irrelevant to any issue bare, shat his opinion 
is about shat ths school should bo tbs instn— at of and his 
vhols attempt to got him to ooawont oa shat ths Ssprsauk court 
said, b ecau se  he doesn't understand. He is sot a legal expert.

THS COURT: Wall, all of theao matters would
be relevant only, it Mass to ne, as they night or night not 
bear oa the weight that’s to be given to his testimony ea 
other natters that are relevant.

MR. WILLIAMS; The question as to whether he 
thinks the school system should be an laatronant of aoeial 
change is not relevant in light of ths fact of the Sup rums 

Court has said that the constitution requires the schools to 

be —  segregation to be abolished.
THE COURT; Tes.

Ho question that the guidelines the rtnirf n o t  go

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Raster - Cross 1503
by are the decisions of the appellate coart irrespective of 

his guidelines.
BY MR. WITTt
q  In your direct ersetnation by Mr. Williams, you
commented upon the freedom of ciioice concept?
A Yes, sir.
q Does freedom of choice have the same meaning in
every school system that you have been in?
A No, not necessarily.
q What are the varieties?
A Freedom of choice can take the form of freedom of
choice being offered to certain groups and not to other groups 
I conceive of the minority or majority to minority transfers 
being a type of freedom of choice.

Generally speaking, though, the connotation of free­
dom of choice is the classical design that we find here in
Chattanooga —  open enrollment. A child in any vicinity may 
enroll in any school in which he pleases, at least that's the 
theoretical concept.
Q All right. I believe —
A (interposing) Somstimes it's limited to certain
schools. In other words, sometimes he is given definite 
alternatives. Sometimes it’s every school in the system. 
Sometimes it's a particular instance such as I mentioned.
majority to minority transfer. But, they are modifications

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of freedom of choloe. I was talking about specifically about 
tha frtsdos of choice plan in the high schools hors.

All right. Z believe the oonclusioo that yuu
basically imeffeofcive? 
instances that wo M y  find 

thm general ocoolooioo in n
isolation of tha public schools and tha Col.anaw Beport was that 
these aeasures had not brought sheet a great degree of school 
desegregation.

Raster - Cross 1309

Q All right.
came to there that they
A Yes, there
they may be effective, 1

Q
not?
A
Q
A
0

All right. re five high

Yes, sir.
Z believe yon know the oosy oeition of Braiaard? 
Yea, air.
would peer statement that ireedcm of ohoioe was 

basically ineffective apply to Brainerd as well as the other 
schools?
A Yes.
q How each desegregation would we have to have

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at Brainerd to neat your definition of effective?
A Hell, in a local situation Z would probably
say if we could strike the general racial compos! tioa of the 
student body in this systeu plus or minus m s s  percentage that 
seemed to be practical, then it would be more than Brainerd

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Kastar - Cross 151C
presently ham. I would say, oh, at least 30, sad that's 
the —  sty opinion, you understand, 30 percent blank and aayba 
abova. Depends on the amber —  eaupooltloo of high school 
students. Probably m  can get nearer the 45 or 50 —  50. 
q  Anything short of that is ineffective?
A hell, anything as —  am drastically short as
Urainerd is, of that, is ineffective.
q  Too would say the s ms thing, Z suppose, about
Kirkman?
A I'd say —  wall, no, Klrknsn, you uuu, is a
special school. And, X hove always hold that if we did not 
have other devices to keep ylrt— n front being dsuofxofdrted, 
integrated, that special schools such as technical schools 
open to all students would in and of then as Ives attract the 
students to the vocational pxegran.
0 a n  right. Than your characterisation of basiaall]
ineffective would also apply to City High School, is that 
correct?
A Yes.
Q Toll mm, do you kaow any school eywt m  in the

country that has s racial population in every school, black 
and white, substantially the sews as the racial coupoaition 
of the entire system? ,,
A Substantially the sene or comparably the sane?

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Raster - Cross 1511
Q Yes.
A Yss.
Q Would you ms—  it, pie ass?
A Berkeley, California.
Q Berkeley, California?

Row long has It been that way?
A well, i don't know, but 1 think since If6 8 .
Q And when was the last tine you were there?
A *70.

MR. WILLIAMS: May it please the Court, I dislike
disrupting counsel, but it is impossible to coeplete this 
case today because of the extensive cross sweet nation and 
been ey intention to catch a plane end go back for a —  for 
the Legislative ease ion this evening and return in the Morning.

And, in order to do so, I would have to catch a 
plane at 5:15, and I would like —  request that we adjourn 
in tine this evening —

T H E COURT: (Interposing) All right.
MR. WILLIAMS: (Continuing) —  if possible.
THE COURT: Any reaeon iri&y we should not recess

the trial at this tine?
Now, then, gentleaen, I have a personal natter 

I nu*t take care of in the eoralng. I aust get ay wife out 
of the hospital. Any reason why we should not start this case

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at 10:00 o'clock Instead of 9:00 o'clock?
MR. MITT: Perfectly agreeable with the defendant,

your Honor.
MR. WILLIAMS: I believe that would be a little

better for me, because sometimes that plane is late.
THE COURT: Hell, let's start the trial of the

case, then, at 1 0 : 0 0  o'clock in the morning of 9 : 0 0

o'clock.
Adjourn court, then, till 10:00 o'clock tomorrow

morning.
Can I get seas indication froa counsel, now, 

to hew much longer it's going to take to nca|i1 ate the case?
We have another case that was supposed to start today, and we 
passed it to tomorrow.

Raster - Cross 15X2

MR. WILLIAMS: May it please the Court, I have
one more witness, one wore expert witness whose direct 
testimony should take not aore then 45 minutes. And, I have 
thought to put on Mr. Mapp, whose direct testimony should be

20 || not longer than 2 0  minutes.
21 II the COURT: Very well. Very well. Well, i
22

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5 will
try to plan accordingly

MR. WILLIAMS: As a matter of fact, it's essential
that Dr. Stolee complete tomorrow, if Your Honor please, because 
of his personal affairs.

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THE COURT: All right.
(Court Adjourned.)

Heater - Cross 1513

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KMttr - Cross 1514
EIGHTH DAY OF TRIAL

Kay 1 9 , 1971 
9:00 O'Cloek A.H.

THE COURT: Are we prepared to proceed in the
case of Mapp versus School Board?

MR. WILLIAMS: Plaintiffs are ready*
THE COURT: You eay proceed with the cross

examination.
MR. WITT: All right, sir.

BY MR. WITT:

Q Dr- Raster » using your definition of integration,
do you know of a school system of which fits that description?
* You are talking about my definition of an integrat
school system?
0 Yes.
A Yes, as I said, in my opinion that which approxi­
mated —  now, when you talk about fits in terms of ultimata
degree, I don't know; but in terms of one that approximates 
and is approaching and moving toward that definition, I have
entioned the Berkeley system appears to m  to be approximating 
and moving toward.

Q Then would you —  what is this condition presently
A

**•1 1 * it has —  it has eliminated the racial 
isolation by approximating the balance of the minority groups 
in each classroom of each school.

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Q All right. Then —
A (Interposing) And has —
Q —  as of this novsB M t , can you identify a school
system that fits your definition of an integrated school system? 
A Well, I think I have said that in terns of —

6fcf the Berkeley system fit* right up there. Jtod, it goes on
to even fit the distinction between desegregation and I an 

M | willing to operationally define that distinction if you want 
| to operate on that basis. So, they have nixed the bodies.

10 Q I an trying to sake certain that you have
answered ny question.
A Tea.

Renter - Cross

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Q I an not referring to what you nay expect to have
i4faPPen at Berkeley in the future. My question wea directed to 
15 B whether or not at the moment you know of a school system
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in the United States that fits your definition of an integrated 
school system?

MR. WILLIAMS: Well, I object becanee he has
g| said, he has answered that question three tines.

T B S  COURT: He nay restate his answer.
A Yes, to the extent that it han began moving
toward the achievement or the realisation of equal educational 
opportunities for all of its students. I would say that 
it's farther along but one that has used the Utopian level 
of that expressed by Clark which is a restatement of Thomas 
Pettigrew (phonetically).

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Yoah, I’d say Barkley cosms as near as any. Bat, I don’t know 
of any school system in the country that has reached a Utopian 
^ • * • 1 of integration.

0 Than, as I understand that response, then inte­
gration is a Utopian condition?

^ Well, I said the Utopian level as expressed by
Kenneth Clark. I would say that there is no system that I 
know of today that has completely afforded the realisation 
of equal educational opportunity for all of its students;
but there are certainly those who are so much farther along 
than others.

0  Thank you, sir. Now, let's take a look at the
Berkley system since —

A (Interposing) All right.
G you are, I am assmeing, this is your model?
A Yes.

® All right. You have given us a conclusion. Now,
vould you indicate the salient basis for that conclusion?
A Yes, I think so. In If6 8 , Berkley began its,
as you like to call it, desegregation which was the first 
step toward integration. \n4 ,I have talked with their 
director of human relations, Katherine Favors, Dr. Katherine 
Favors (phonetically) and she has also concurred with me 
on that point. You don’t even begin integration until you 
start by desegregating. And, her definition of desegregation

lutnr - Cross 1516

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ia essentially the sane as mine —  you have to mix the bodies 
to prqportion of the racial composition in the community —  

that is the school community.
So that they began in 1968 and 1969, they really 

got underway where they had complete racial balance in all 
of their schools. And, the first year I an sure they had made 
the commitment. Now, you understand that integration cannot 
occur without, as you have distinguished, desegregation. So, 
they made —  they had a racial composition, as I said, in 
every class comparable to that of the racial coaposition in 
the school community.

And, they began with the elementary schools in 
a cross busino situation; that is, K through three, four 
through six, then moved right on into their junior highs —  

have a separate ninth grade school and then Berkeley High for 
ten, eleven, and twelve.

Now, the salient characteristic that put them on 
the way is that they had a goal in mind in terms of achievement 
and attitudes of their students. In other words, they had as 
goal the realization of equal educational opportunity. And 

they said, "We are imaginative, skilled educators and we can 
irake this thing work.*

Well, everybody knows who looked at Berkeley that 
in 1969, because they put into effect their mechanical plan to 
mix the people, that that isn't where it ended; hot simultaneous 1

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5 1 they put into effect their plan to integrate those pupils and
2 in averV dimension of school life they have displayed free 

imagination so that the rough tines they had during 19€9,
1 1970 —  and there were a few —  I didn't think there were

Raster -Cross 1518

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that —  all that many, bet they recognised there were a few ~  

subsided in 1970-71 and they published stuff very frequently 
from their Department of Public Information.

' their goal was an increase of a grade level 
in achievement for every student in their school this year and 
an elimination of the racial tensions and on their measurements 
in effect, whatever they were, and I don't happen to know that. 
Your Honor, but they felt they had made a million miles' progres 
in terms of effect. The kids are getting along well this year. 
They didn't have racial strife in their schools and in terms
of achievement they almost gained a year for every student in
the school.

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And the majority group, which was then the 
majority but now is no longer the majority, and that is the 

I whites, I can’t remember exactly the percentage, as I said 
yesterday, but they are not in the majority I don't think.
They are right at 50 percent now, because they have some other 
minority groups there. *wy did even better than they had 
done, in their achievement progress, they had done even better 
than they had done as a segregated system so that, again, 
Berkeley conforms with the achievement attitudinal data that

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w® find in the Coleman report in Racial Isolation.
So, I think the salient feature la that they 

had made a commitment to make integration work. They knee 
what the story was, they felt. They desegregated, that ie, 
they mixed the bodies, and they began simultaneously to 
integrate and that system has continued to grow. It's known 
all over the country a. one of the most forward-looking, superior 
®ducational systems in the country.

0  Did I understand you to say that Berkeley was
segregated in 1968?
A No, not completely.
Q Nell, then, will you explain your statement
becauae I believe that la tha term you used.
A Yes. Well, I was talking about in terms of
partial segregation existing in some of their schools. But 
see, they really have a unique situation. They have the

hill on which is mostly s white residential cosmunity and 
then they have a low land section which is mostly for minority 
groups, primarily black and then they had a middle area in tha 
city that was integrated residentially and during their cross 
busing, they just bused from the low land up to the hill and 
the hill down to the low land and left the middle alone.

In other words, by their redistricting and 
busing, they broke residential patterns of segregation.

I aqree with you that Berkeley is unique. But could

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Keeter -Cross 1520
you describe any other aspects of its uniqueness?
A Tes. It's in the heart of a cosmopolitan area,
right across the bay frost San Francisco which doesn't have 
any counterpart in this area, I'm sure. But, I would tMnfc 
that the more complex the cowunity is, the more difficulty 
you'd have in desegregating —  integrating the system, and I 
see the San Franci sco-Oakland-Richeond-Berkley area has been 
aaong the most complex in the nation save Mew York, perhaps. 
And when they can desegregate —  integrate those complex 
societies, I would think the simpler the society, the easier 
it would be to integrate.
Q How many high schools in Berkley?
A One, actually has several components, several
communities but they have Berkley High which has —  I don't 
know how many students, over a thousand anyway.
Q How many elementary schools?
A Elementary schools?
0 Yes.
A
Q

I wouldn't have any idea how many eli 
How long were you in Berkley?

itary schools.

A Well, I have —  on the two occasions I was there
I was actually staying in San Francisco and I drove through 
the city, visiting around one day for a two-day period of time,

another day for a one-day period of time and all the time wasn’t 
spent just visiting the schools. But, of course, I keep up

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Koet«r - Cross 1521

with ths literature on Berkley because 1  an interested in 
thsir educational system in particular and their problem 
of segregation in general.

0 All right. I believe you stated that you were 
in Berkley in 1970 for the first ties?

A oh' 0 0 • for the first time. You see, I grew
up in San Diego in ay early days and I was stationed at 
Port Ord, California, which is just a couple of hours away 
froa San Francisco, and that's 1962 and *3, and then I'd been 
up to Berkley before that. I didn't make it a point on those 
occasions to become acquainted with the school system.

The reason I was kind of looking at the school 
system on the last two occasions I was in Berkley because
1 thought shout going out there and working for the public 
schools. Dick Forrester is the superintendent in the system, 
and I had had some people who knew him well that had 
referred me to him and so I wanted to investigate the 
possibilities of applying my knowledge and educational 
psychology in a school system and if the opportunities were 
right I wanted to kind of look at the system ahead of time.
I haven't negotiated anything specific with them.
Q All right. Directing your attention et the fact

that you indicated that Berkley would be a model, when was 
your f-r.'t visit to the Berkley school system that resulted 
in your coming to this conclusion?

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Kester - Cross
A Well, I don't think that it was ary visit to the
system particularly that arade are cos* to the conclusion but
rather ay looking at the printed evidence fro* their public 
information department.
Q well —

A (Interposing) Insofar as that tea accurate aw?
true and their evaluation was —  was accurate and true, then 
I hau> —  and the reports free ®y fellow educatorsVho were 
former administrators in the San Francisco area, when they 
referred to Berkley as being kind of a model and I respected 
their judgment, too.

And, as I say, then I judge it on the basis of 
the reports, the statistical reports they issued and their 
evaluation, too, and they seem to be getting along better 
than most places.

Q Does this indicate that you are of the opinion
that you can make a determination as to whether a school is 
integrated or not for the purposes of giving expert testimony 
and do this on printed information?
A Well, I will say that I have no reason to doubt
the printed information, knowing the people in the system.
Q Dr. Kester, I did not indicate you should doubt
that vneir printed information —  I merely asked you if their - 
if this was the sole basis of your judgment.

A No, personal conversation with Dr. Katherine ravori.

1522

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dixsctoir of thiir hoMD nlAtioni And lMdln^ £helr 

integration movement also led me to think that.
® All right. Whet m s  the date or the year of
these conversations with Doctor —  I did net get his naee?
A It's her, Katherine Favors (spelling) F-a-v-o-r-s
Q Sir?
A (Spelling) P-a-v-o-r-s.
Q When was your first conference with her at
Berkley?

A Well, I never talked with her at Berkley. She
caee to the University of Miami to —  as a consultant to 
the desegregation center and I don't know when her first —
when her first visit was there. And, just to —  but I think 
she was there in 1969.
Q Well, then, perhaps I can shorten this, when was
your first official visit to Berkley —  to Berkley school 
system?

A You talk about official visits. 1 never went
there officially as an educator, you understand. I told you 
at the beginning that all my visits to Berkley were informal, 
did I not?

Q All right. Yew referred to the concept of racial
balance. What do you consider this, when you make this 
statement, what do you mean by that?
A well, I am talking about mixing the races in

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Ke*ter - Cross 1524
coaê >arabls proportions to their existence in the school system. 
® right. And, I believe that yoa also took
that racial balance concept to the level of classroom, did
you not?
A I did.

Q All right. Mow, you referred to the rough tines
that they had in Berkley in 1969-70. would you describe these 
rough times, please?

A Wall, I don't know all the figures, Mr. Witt,
but in general they did have some strife, that is, it's 
considered racial strife when a black boy and a white boy hare 
a fight. when two white boys have a fight, it's not racial 
strife, of course. And, boys will fight but I guess we could 
assume safely that there are some racial motivations when 
you have sudden change and desegregation.

My point simply is that —  that the administration 
in Berkley didn't find this insurmountable at all, that they 
expected that, knowing attitudes as they do and knowing 
human nature aa they do, that there's going to be some diffi­
culty there. But, that they overcame and gained in advantage 
in terms of achieveetent and now they have a rather s e t.tls d  

situation, in fact settled, and on they went.
Q How many days did you spend in Berkley from
1968 up to the present time?
A Well, as I said, about three. I admit that I

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1525Kaster - Cross

didn't M i l  any asssissmt of ths Barkley situation totally on 
tha basis of my visits and in fact, tha Majority of my 
assessment has been by second-hand reports; bat I do havo a 
first-hand knowledge in this ainca I have soon tha system.
I kn ow its composition. 1  know sons of thair city problasw.
I know tha general natura of tha ijarnji araa
social nature of tha araa, and I can appreciate tha reports 
that they publish axe satisfactory to as.
Q Than, your information and your knowledge about
Barkley —  is this factual information and evaluation an 
essential part of your —  the purpose of expert testimony in 
this litigation?
A Well, you understand that I didn't have access
to tha same kind of data and with tha same involvement with the 
school staff there that I had in Chattanooga. So, by no naans 
is ny evaluation of Barkley coaparable to my evaluation of 
Chattanooga.
0 Or. Kaster, i did not aak you to roapsra tha two
communities, but I asked you whether or not the knowledge that 
you have gained from —  by whatever method with reference to 
Berkley is a basic part of the expert testimony that you are 
offering in this case?
A No, not necessarily.
Q Thank you. You can consider Berkley a stable
coarounity?

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Xaater - Cross 1526
MR. WILLIAMS: May it please ths Court, I object

to the pursuance of this any farther, whether Berkley is a 
■table community is entirely irrelevant to any issues in 
this case.

THE COURT: Well, only that it m i g h t or eight not
reflect upon the weight that is to be given to the testimony 
of the witness on matters that are relevant. State your 
question.
Q Can —  he has already answered ey question.

THE COURT: All right. Well, move on then to
something else.
Q Do you feel that education can be effective in
a community which is unstable?
A Well, you see, I don't think I can answer that
question yes or no. Mo man can say that it can or cannot be 
effective and —

MR. WILLIAMS) (Interposing) And I object to the 
question because —  please, sir, what I object —

THE WITNESS: Yes, sir.
MR. WILLIAMS: Because there has to be a definition

of what he is talking about with regard to instability and in 
the first place; and in the second place, the question is
irrelevant to any issue in this case.

THE COURT: Well, receive it on the same basis
as the previous question. Witness may frame his own answer.

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Kester - Cross 1527
Something he cannot answer because of lack of definition, he 
aay so state.

Q 1 belieee that the substance of my question, Or.
Hester, was do you believe education can be effective in a 
community which is unstable and in turmoil?
A Hell, now, you have changed the definition
slightly when you said this time in turmoil. I don't believe 
you said that before.
Q Perhaps I didn't.
A Mo. Well, again, I would ask that you define
these unstable dimensions. You see, there is instability in 
one dimension that may make no difference in the effectiveness 
of education and there are instabilities in other dimensions 
that can affect it.
Q I would use the normal definition of stability.
A 1  don’t think there is a norm for stability.
For instance, if you talk about stability in terms of 
stability of population so that we have, for instance, some 
people may say Miami is not a stable coemsority because we 
have a transient work force coming through at times it's 
stable and other times it's not; great input and outflux of 
visitors in Miami.

So, in that term, Miami wouldn't be stable.

But, there is a stable population. If you are talking about 
population being stable, that's one thing; but there is too

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Kester - Cross
many dimensions to stability of a —  perhaps it's not stable 
economically, perhaps it’s not stable in mnma other way.
So, if you will define stability and the dimensions of 
stability you are talking about, then I would tell you 
whether it affects education in ay opinion.
Q Are you faniliar with the stability, racially,
of the student body in the schools in that Berkley situation 
in recent years?

MR. Williams? Mall, I object to that because the 
stability of the student body —

the COURT: Yes, I don't see the relevance of
that, Mr. Mitt.

MR. MITT: The relevance, as I see it, may it
please the Court, that is in his testimony he has referred 
to a situation in which the student b&dy in the school system 
approaches some mathematical balance. And, the ia*>lication is

that this has soma valued desirable educationally and I am 
trying to determine from this witness who has offered Berkley 
as a model whether or not he knows about the stability of the 
student body in the Berkley school system.

THE COURT: Discussion of the Berkley system is
completely academic, as it may or may not comply with the 
requirements of the law. Now, let's get do*n to the school 
system and requirements cf the law.
0  D o you considar integration a psychological

1528

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16

concept?
Kester - Cross 1529

2 A It's a psycho-social concept.
3 Q Is it an educational concept?
t A Tea.
r> Q Is it a legal concept?
6 A I don't know.
- Q Is the psychological concept and the educational
8 concept, are they the some?
9 A I would say they are interdependent.

10 Q Would you explain?
11 A Yes. In other words, the application of
12 psychological construction in integration or the psychological
13 sociological construction of integration any —  taken in a
14 school context and certainly the school concept p r  the
IT) educational concept of integration includes psycho-social
16 notions about it, so that’s the reason I call thee inter-
17 dependent.
18 Q Are you aware of any legal concept of the
19 definition of this tern?

2 0 A I am not a legal expert.
21 Q Are you aware of whether or not it has a legal
2 2 concept?

2 3
A Ho, I am not.

2 3 Q How much tine did you spend on the campus of

2 3 Brainerd High School? -

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tester - Cross 1530
A Oh, very minimal time. I'd say 20, 30 miautee.
Q Bow lomg?
A Twenty or thirty minutes.
0 Bow many teachers did you converse with?
A Oh, let's see, st Brainerd we didn't get to
talk with anyone —  well, wait, there was someone else in 
the principal’s office. On Brainerd High School —  excuse w ,  
I was thinking of Chattanooga. Let me go over to Rrainerd.
We only talked with the principal.
Q You talk with any students?
A No.
0 Can you make a judgment based upon your experience
with reference to whether or not Brainerd High School is 
integrated or desegregated?
A Well —
Q Sir?
A well, statistically it's not desegregated accordin
to my —  or integrated according to my definition. By the 
admission of the principal, it's my opinion that he would 
say that they have not integrated. They are having problems. 
They are trying to shore up the edges in teems of perceived 
injustice in electing cheerleaders and student council 

representatives; but they have not Integrated.
Q Is integration a statistical concept?
A No, not necessarily. That's what I am saying.

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It depends on your operational definition. We'd better go 
back and say whether I as talking about it in its dual
terminology or whether I as making a distinction between 
the two.

If it would help you, I will operate only on the 
distinction between the two without any problem if you want to 
operationally define thee differently.
Q Would you —  you would not say that Brainerd
is effectively desegregated, would you?
A No.

tester - Cross 1531

0 Now, if you ware the principal at Brainerd, what
would you do to achieve an effected desegregation?
A Well, knowing the principal's role as I do, I
don't think ha has anything to do with it.
Q Well, if you were the —
A (Interposing) If I ware a school board mambsi
that might be something alee.

Q All right. Let's say that you are the school board,
what would you do?

A I'd probably sake the asms decision that Nisei,
Plorida, school board made two weeks ago to achieve racial 
composition in every classroom of every school in Dade County 
comparable to the racial composition of the school community.
Q You are stating that this was accomplished in
Dade County two weeks ago?

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Kestar - Cross 1532
A weeks ago, the school board issued a statement
Q Are you equating the issuance of a statement with
the inpleatntation of the policy that the statement reflects?
A I have no reason to suspect that school board
of not complying? and in fact, thay warn unique in that thay 
were, the defendants in —  I mean thay ware the plaintiffs 
in the case to integrate their schools. You see, they had 
several sister groups that ware trying to block it and the 
school wanted to integrate and the school board issued the
statement. I suspect they will accomplish it most hastily.
Q Did you consider that an answer to m y question?
A Hell, I don't know whether you did or not but
I did.
Q Hell, I will restate ay question.
A All right, sir, I trill be glad to try to answer it
Q Do you equate the statement, the issuance of the
policy by a school board with the actuality of the isg>l*enta 
of that policy as reflected in the statenant?
A Of course not.
Q How, you have any other suggestions as to how
Drainsrd High School could be desegregated?
A Yes. I would say that if the school board made
up its mind to desegregate —  integrate the schools of
Chattanooga and the Court issued an order to desegregate _
integrate the schools of Chattanooga, that tbs school people.

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£ester - Cross 1533
thst is the superintendent, his staff and the principals and 
the teachert in this systse would do it. fed, that the 
romunity would in tine, perhaps a short tine, perhaps longer, 
I don't know, support it and that this system would more to 
a front position in American education.
Q Can you give any suggestions with regard to the
administrative details or otherwise that would enable the 
school system to nove from where it is to where you are 
talking about?

A hell, sir, I would tell you what. There is no
plan of specifics for ns to react to at this tine, but one of 
my colleagues who is an administrator by expertise and with 
whom I worked just a little on this has dgne most of the work 
on it himself would be willing to furnish you that information. 
0 But you do not?
A But I cannot.
Q Do I understand, then, that the substantial
portion of your opinion la based upon theory?
A No, I don't think so.
Q But, to this extent it is?
A To what extent?
Q To the extent of being able to give specifics to
a school system to guide it or a school from the racial 
exposition in which Bralnerd finds itself at the moment 
to the point where it would be racially balanced, in that

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tester - Cross 1534

ares you have no knowledge?
A Oh, I have knowledge on that.
q Well, I asked yon if yon would give us this
information?
A Again, it's not totally theory. It's a natter
of theory which, of course, is another word for logic and 
the experience of other systems and, yes, I think by 
districting you could, as the superintendent said, I believe, 
you could —  you could achieve s q m  racial balance.
Q All right. Any other suggestions?
A Well, you could —  well, I think that would be
the most.
q Dr. Kester, do you consider the maintenance of
stability of the student population from the viewpoint of
black and white in a school of any importance?
A Of any importance?
Q Yes.
A Well, I don’t really know whether that —  if I
would say it's a dependent variable. You know, in other words 
there are other things upon which I would judge the importance 
of the stable school population in terms of racial composition 
g Do you attach any importance to this?
A It's possible, as I said, given certain
qualifications.
0 Well, I thought this was your goal.

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A No, I didn't say that that was m y goal, I don't
believe.

Q In your definition of racial balance, didn't
you say that’s what you were attempting to rchieve?
A What's that, stability of population?

Well, racial balance and stability relate to

Xester - Cross 1535

each other?

I:)

A They may be related but certainly not equal
concepts, not logically.

Q Let’s assume that you had a 50-50 student balance
at a high school in the City of Chattanooga. Do you consider 
Arriving at that ratio important?
A I'd say it's that or approximate or co^>arable.
Q Yes.
A it is important, yes.
0 Then once you arrive at that ratio, do you
consider staying at that ratio important?
A Approximate or comparable if the composition of
your total student body remains in that proportion I would 
my that, yes; and, of course, that would assn that you can't 
just take a back seat once you have accomplished it once.
You have to -- you have to administer year after year. That 

gleans you may district one time and next year you may have 
to redistrict because —
Q (Interposing) All right. Now, in your value
system. how important is this racial balance?

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Kt*t«r - Cross 1534
* I think it’s important as an expression of tha
®<7uaiity of every individual in our socioty and I think that 
the young people in our schools sea this balance as an 
expression of an equal opportunity and so 1  think it’s quite —  

0 Do you relate in any nay a successful school
integration to the maintenance of the stability of the 
classroom, black-white ratio?
A well, you were talking about that as a rigid
characteristic?

Q I did not naan to talk about it ea a rigid —
A (Interposing) If you didn't mean to do that,
then I will say this, that that of course la an Initial 
consideration; but it doesn't stand by itself end really it's 
not appropriate to talk about it just in sequence. It takes 
place first but simultaneously and continuing thereafter 
there have to be many other things that take plaoe to make 
for quality education.

In other words, you just can't mix the bodies 
and say, 'Nos I have done it." I am not going to make 
quality education.
Q All right. Did you identify any evidence of
resegregation in the Chattanooga system?
A Y ou are talking about schools that were formerly - 

MR. WILLIAMS: (Interposing) Yes, I object to the
word resegregation," if Your Honor please, her Mina there's

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Saster - Cross 1537
I

never been any abolition of segregation.
THE COURTs He may state his answer.

A To clarify what you mean by msegregation, you
talking about a single school out of the 47 that eight have 
been at one tine desegregated and then as residential rnmmiinl 
ties change or other factors, this school tK«» becomes 
predominantly one race or another?
0

term, yes.
That's ay understanding of the meaning of the

A All right. Yes, I think that there are some
instances of that
Q Do you recall them?
A If I am not mistaken, Avondale was ome of those
schools, was it not?
Q Yes. Is this —  is this reaegregation good or bad?
A Is it good or bad?
Q Yes.
A I'd say generally it's undesirable.
Q All right. You know of any way that this could
have been prevented by the Chattanooga Board of Education?
A Yes, sir, I do.
Q Would you describe it, please?
A Yes. That we had soma kind of districting system
which would have rebalanced that school, it would not have 
been resegregated.

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X M U r  - Cross 1538
Q How, what
A (Interposing) Kay have had to bus, too, I don't
know; but we could have kept it.
Q All right.
A And in fact, I would suggest, Mr. Witt, since
we are on that topic that if the schools are integrated and 
people know that we are committed to integration, they will 
find moving out of their neighborhood less and less desirable. 
At least that's ey opinion and it's the opinion of other 
sociologists —  of sociologists.
Q Wow, in your devices or means by which you
indicate that this could have been prevented, would the 
race of the students have been necessary for consideration 
in structuring a plan to avoid resegregation?
A i don't understand the question, Mr. Witt. Would
you restate it in another form?
0 well —
A (Interposing) Obviously if you are going to
talk about desegregation or integration, you are going to 
have to consider race. So, I don't —
0 All right. And, you mentioned, I guess, busing
as a possible means?
A Yes, sir.
Q And when you mention busing, I asstaae that you
mean that one has to be aware of the race of the etudents busec

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Keater - Cross 1539
* ^*s» I would think if you arc going to.
Q You also have to nake a docision with reference
to busing based upon whether they are white or black?
A Yes.

Q How, if at the tine that you were attempting to
prevent this resegregation of Avondale, if you were under e 
court order that had as a part of its order these words: 
"Provided, however, that no admission or transfer plan nay 
be based upon race and have as its primary purpose the delay 
or prevention of desegregation in accordance with the plan 
herein approved, “ would the fact that you were a
court order that read this way have any bearing upon your 
decision to take steps to prevent resegregation?

MR. WILLIAMS: I object to that, if Your Honor
please. He has asked that question previously, and I object 
to it for the sane reason. I believe I was sustained before, 
that he is asking this educational expert to interpret the 
Court's order and —

MR. WITT: May it please the Court, I don't
see any interpretation that is required other than the
aver*9« school person makes of interpreting the English 
language.

THE COURT: well, well, he may state his answer.
The relevance of it would be lor the Court to determine.
A Obviously in making any such decisions, I would

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have had to oonsult with expert legal counsel, isut, I believe 
as an educator, my interpretation would have been that the 
reference to no reference of race was intended to eliminate 
racial discrimination against the minority group and then to 
the rest of the order —  would you read the second part of it 
•*ter the reference you made to don't make any reference to 
race, because I thought that was also important. You can't 
just read the first sentence. Go on to the next part.
Q "And have as its primary purpose the delay or
prevention of desegregation."

Kaster - Cross
1540

A Yes. Mow, you see, that I thought was quite
iaportut because, you see, you can hardly not pay attention 
to race and not delay or prevent desegregation. So, what I 
am saying is to just say that the Court probably meant no 
reference to race and it needed to be interpreted I think as 
no reference to race that was discriminatory against the 
minority group and thereby keeping that minority group from 
desegregating or integrating. Mo reference to race was kind 
of a , you know, just capitalising on the first end of the 
phrase and not reading the whole thing together. Taken together 
the thing meant jurft what I would aay it meant.
0  What does "without regard to race” mean to you?
A Well, you see, you oan take three words or four
words out of context and it can mean quite a different thing 
than if you take the whole thing in context. Whole thing in

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context means just what I said it 
hav® sxpart legal counael to give 
tha law.

Aester - Cross

lid to m . I'd have to 
» tha full dimension of

1541

Q Did you saa dacisloes of tha Chattanooga school
Board of haring had any influence on tha Avondale resegregation 

MR. WILLIAMS: Wall, now, I object to that
because that's a conclusion for tha Court to reach.

THE COURT: Tha witness nay give his answer.
A Wall, I think that tha school board could hare
made decisions that would have prerented the resegregation 
of Avondale. And, I gave tha dimensions I thought it could 
have okayed or permitted or advocated. In other words. If 
it had bean interpreted by the school board and school board 
attorney tha way I interpret it, which it was not, then Avondall 
would not have been ”resegregated."

And, it was my opinion that by deciding not to 
do these things, tha school board made a decision that 
resulted in resegregation.

0 Then it’s the school board's failure to act,
not their actions that you are referring to?

A You ' w® « e  talking about two aides of the
same c o in , aren't we, by choosing one alternative not 
considering any other, it's an action, and I say it’s an 
action on the part of the school board.
Q All right. Do you know —  take tha Avondale

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XMt«r - Cross 1542
situation, again. Do you know of any procsdart that was 
available to tha school board that could haws 
resegregation that did not have raca as a part of this 
dacision?

A I thought I just answarad that just a sonant ago,
that you can't considar sabrogation —  rasagragation, 
dasagragation or iatagration and not considar raca.
Q All right. How, if at tha tins and you wars
tha school board, and if at tha tins you ware attaapting to 
pravant rasagragation at Avomdale, if you warn in a lawsuit 
in which tha plaintiff dascribad what thay wars aftar in 
these words, "Assign pupils in tha Chattanooga Public 
School Systaa pursuant to geographical capacity/ anlatad ** 
school zona lines for each school, such linns drawn
without regard to raca," would that have any affect upon 
your dacision?

MR. WILLIAMS: I object to that, if Tour Honor
please, because tha school board was governed in its 
requirements by tha orders of this Court, not by tha pleadings 
and that's objection one.

Objection two, is this witness is not competent 
or required to interpret pleadings or to give soma hypothetical 
statement with regard to what ha would hava dome if ha had 
read tha pleadings in this case.

THE COURT: Gentlemen, it doaa seam to mm we are

,V A

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Raster - Cross 1543
getting a little bit away from m m  of the issues. MS are 
gorernsd iisr* not by tbs previous orders of this Court except
to the extent that those previous orders 
with the law as it exists now. Ms are 
the law as it has been enunciated by the 
by the United States Supreme Court and as 
the past month.

are in accordance
here by
end particularl|y 

recently as within

MR. WITTj May it pleas# the Court, the reason 
that I asked the question is that the expert has given a 
judgment that goes all the way back to 1961 or *62 and his 
judgment, it was not apparent from direct examination whether 
or not hia judgment waa based upon all the facts.

THE COURT: Tss, but when we must make a decision
in this case, Mr. Witt, on the basis of the present law, it 
is not particularly helpful to go back to a prior statement 
of the law. If that were the case, I suppose we could go back 
to 1894 and coma right straight on up. But, this case must 
be decided on the basis of the law as it exists now, not
on ths basis of the law as it may have existed at sosm prior 
stage of our history.

MR. WITT: Yes, Your Honor, and I agree with that
statement completely.
Q Dr. Raster, have you ever had say personal
experience in preparing a whits elementary community for 
desegregation?

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Sector - Croce 1544
A For desegregation according to your definition
which ic the mixing of bodiee?
0  Yea.
A No, I have not.
0 A black co— unity?
A Mo.

Q Would you concider preparation desirable?
A I would have considered it derlrable if we had
had the luxury; but I concider the expediency — re important 
than desirable.

Q Thank you, sir. You know of any situation where
the law has been able to — ke people good in your definition —  

MR. WILLIAMS: (Interposing) I object to that,
if Your Honor please.

MR. WITT: He made the state— nt yesterday on
direct examination.

THE COURT: Well, let's not get quite so academic,
gentlemen.

0 Now, during the course of your use of the
slides yesterday, you raferred to 2 B of the transfer regulations 
of the City School System. Do you recall that part of your 
testimony?

A Yes, sir. If I had the transfer regulations
before rae, I could respond specifically.

Thank you, yea, sir.

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32 Kester - Cross 1 5 4 5

1 Q I think you referred to something you characterised
■> as suspicious with regard to 2B.

A Tee, sir. Now, you understand I did not s i s n n

t in terns of the schools' administration of policy 2 B but
5 rather in the possibility, and I simply call it a possibility

•
that 2B was used by white parents to move their children to 
a community agency. And I said I didn't even know whether

8 the agency was segregated. I just said that statistically it
9 fell into a bracket that made it an object of further

10 investigation.
11 If I were a school official, I'd went to see.
12 "Well, now, are these white parents using this clause to
13

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move their kids out of a would-be desegregated school or

11 integrated school into a presently all-white elementary school
If ) at Highland Park.” That's all I said about it.
W)
IT

Q Did this suspicion with regard to this particular 
item have any part in your judgment and evaluation of this
school system?

19 A No, not a major part at all if any.

2 0

21

Q But it did have a part?
A Well, I would say probably negligible,none.

22 C All right. Do you —  do school systems generally

23
have this kind of a provision in their regulations or do you

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know?

2! i
A Wall, you will find it from placet to place

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K*»ttr - Cross 154*
that the provisions vary? but it's ay understanding frost the 
literature on desegregation cases that where such provisions 
have existed and the school was desegregated or integrated 
that this kind of provisions gives leeway to people who 
have racial prejudice to make use of something that was 
intended as legitimate, was intended as an aid to the 
community, and all of a sudden when their prejudices were 
violated, they began using something that was originally 
legitimate as illegitimate.

Aid so, yes, I know it exists in other systems 
and I know that there have been some decisions handed down
which have stricken loopholes for getting out of desegregated 
schools.

Q Do I understand you to say that from your
experience and education that such a transfer based upon 
the obvious reasons for the transfer is generally a good 
basis for a transfer?

MR. WILLIAMS: I object to that hersuse we are
here dealing with a school desegregation situation, if Your 
Honor please. That is what is relevant, not what is generally 
good in terms of transfer.

THE COURT: Well, he may state his answer.
A Mr. Witt, I would say that if I were an
administrator in this school system and the school system 
were not only desegregated but, well, on its wey to integrator

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Kfester - Cross 1547
and than such a tranafar provision night ba acoaptahla.
Bat, if I vara tha administrator in a school systam that had
ovar a pariod of alavan yaars not achieved any segregation
or integration in its system, than I would Why^ll 1  an
doing whan I make tha decision to go ahead and desegregate
the system and integrate tha systam is providing "cons and 
jump through ne loophole" so I would perhaps, temporarily, 
perhaps until my judgment changed about the state of 
integration in this school system. But, I certainly would 
eliminate it at t!o outset of ay attempts to integrate the 
public schools.
Q All right. Mow, take the material that you have.
A Yes, sir.
Q And you are the school administrator now and
you have this suspicion. Mould you investigate that suspicion? 
I assume you would.
A Tea, sir.
Q All right. What would you —  what would you
have to find in order to do away with that particular —
A (Interposing) Well, as I said , I didn't make
my decision about that provision based on anything that's 
contained here in this data. What I did was notice that 
that's the kind of provision that existed in transfer 
policies that permitted "white flight" from district
district, from school to school.

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XMt«r - Cross 1S48

And, in general, when you are desegregating —  

integrating your schools, I find it undesirable. So, it's 
not based on any particular data in the Chattanooga Public 
Schools because right now no one has had any reason to use 
the transfer policies to get out of it. They can stay 
right where they are and stay in segregated schools in ay 
opinion.
Q All right. If you found that in one instance
this transfer policy was clearly used in order to avoid a 
desegregated classroom environment, would this be enough for 
you to decide to change the policy?
A No. The reason I would change the policy, as I
said, was because I —  it's logical and readily available to 
those who would misuse it and I would temporarily suspend 
it until I got the kind of racial composition in the schools 
that I want, or that the school in general, school system 
and school staff wants.
Q Now, would you use the force of the state to
achieve desegregation?

MR. WILLIAMS: Oh, I object to that, if Tour
Honor please. It's not up to Bobby Raster to whether or not 

the COURT: Yes, I don't believe his answer to
that would be helpful.
Q Do you know —  whet do you know about mandatory
teacher transfers?

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wall,
Cross

I know about Mandatory teacher transfers
1549

in fact.
Q Yes, first hand?
A First-hand knowledge? Mall, I know about the
Mandatory teacher transfers of Dade County.
Q All right. When did that take place?
A Well, the actual transfer took place in
February 1970. The planning for it took place in the fall 
of 1968 —  *69, excuse ne.
Q What procedure was used to inplenent the transfer
A To implement it?
Q Tes.
A The teachers were siaply identified —  well,
1 st no go back and explain the plan that was drawn for 
mandatory teacher transfer.

You understand that since the Court ordered that 
all teachers achieve racial composition in each school unit 
comparable to the racial composition of the entire school 
system in mid-year, it was decided that first year teachers, 
because these were right in the Middle of their first year 
of teaching, would not be subject to transfer. The next 
criterion that was used was that, that on the basis of 
seniority, that is the least senior person beginning with 
second year teachers would be the Most subject to transfer.

Racial balances were established for each of

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th*M  schools in terms of proportions of black and white 
teachers need ad at each school« InnoosceNotf were wmlti to 
the schools to be affected and teachers were at first given 
an opportunity to choose which one of these schools they 
would go to to achieve the racial balance. Then those 
teachers that did not choose to go to a school were trans­
ferred and so the transfer took place, and that is the teacher 
picked up his gear on the first day of the add-week break or 
the nid-senestar break, add-year break, rather, and the 
second day —  at least I think this was the way it went on 
because we were just in the planning stages on it; but the 
second day they noved to the new school and they had a buddy 
system working there. Teachers that stayed in the school 
buddied up with the new teacher coning in and they had two 
or three days' orientation. And, the next Monday morning 
they went into teaching their classes.
Q I believe did you say that you w e  only involved
in the planning stages?
A i was a special consultant to people who actually
did the planning. I wasn't —  I wasn't a planner per se 
except that I was consulted by the staff that did the planning 
for my opinions on it, particularly teacher transfer and 
in-service training.
Q All right. Any other personal experience with
mandatory transfers of teachers?

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A Noll, of courss, I b a n  tvtry asmsstsr about
100 Dado County teachers in my graduate olassos who coos 
through and invariably wo got into discussions shoot this.
So, I have a sampling over the year and a half of several 
hundred of their teachers, and then I get out into naan 
of their schools and talk about sons of the problana they are 
having in classroon cl inn to as it relates to their being 
there under a mandatory policy.

Then, of course, I have murrey BAndaraan1 s 
research that's been going on and preliminary analysis of 
the data as he goes along. So, I have other knowledge, yes.
Q Any additional knowledge that you hove not
mentioned?
A I don't think so.
Q Do you bsooaie an expert —  do you oonsider
yourself an expert with regard to mandatory teacher transfers? 
A Well, I would say that —  that I probably know
more than a lot of people about it and expertise is on a 
continuum. Yes, I'd say I know, particularly the psycho-social 
dimensions of performance under a mandatory basis which is 
the crucial issue anyway. Mechanics of getting them there 
isn't a problem.
Q As I recall your testimony of yesterday on
direct —
A (Interposing) Uh-huh.

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* 1552
—  you referred to ttachars that would fit tha

category which I think you daacribad with a higher profaaaIona1 

concept. Do you recall that part of your testimony?
A Yea, that is a higher concept of professional
role was the way —
Q Higher concept of professional role?
A Yes.
Q How does one identify the teachers that have
this and the ones that do not?
A Well, I have never seen Bindernan's survey
instrument, so 1  don't know the particulars of his identi­
fication, but —
0  D r .  Kester, I an particularly interested in how
you identify.
A Oh, okay. Professional role can be identified, I
guess, in a number of dimensions. Professionalism primarily 
can relate to erne's self-perception as a being who is capable 
of relating to his students in a way as to notivate then to 
learn, as one who is capable technically of instructing 
effectively, as one who is cosed.ttad to the basic tenants 
of American democracy and hopes to propogate these in his 
relationship with all of his pupils.
Q All right. How does one ascertain personally
the teacher that has these qualifications and the teacher

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Kester - Cross 1553
A Well, you understand in my t«stisooy about
Bindernan * s research, I said it m i  the relationship between 
one's perceived professional role and hir perceived ability 
to adapt so it's a self-report survey operation. But, 
of course, ay school of psychology says until I am shown 
otherwise, I will pretty well accept an individual at his 
word. 1  think that people who are psychologically healthy 
are capable of consciously knowing why they do —  now, if 
they have sense valid reason for lying and 1  knew about it, 
then I’d have to take it into consideration. But, until I 
know of a reason why they shouldn't tell me the truth, I can 
assume that the teacher has told me the truth and in terns 
of these teachers reporting their satisfaction or dissatisfacti 
with their present status as a teacher and their original 
reporting of their concept of professional role, though they 
didn't know that's particularly what was being identified, I 
have no reason to believe that the data are not substantially 
valid. It's carried through by other research studies, too.
0 Or. Kester, when I asked you to identify a school
system that would meet your definition of a model or integrated 
school system, you referred to Berkeley. Why did you mention 
Miami? Would you include Miami in that category?
A I tell you what, give Miami the distance that
Berkley gained and I might; but right new, I do not.
Q You have any personal experience in education with

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Raster - Cross 1554

A with what?
Q Riots or near riots (spelling) r-i-o-t-s.
A Oh, college campuses occasionally we do get
a confrontation or two and wo had ono last yoar at tho 
Dnivorsity of Miaoi.
0 Have you any experience with city-wide curfews?
A Yes, in Miaei we have a few of those.
Q You had any experience with circuswtances
roquiring the National Guard?
A Nell, not racial incidents bur. —

MR. WILLIAMS: I object to this, if Your Honor
please. All of this is entirely irrelevant to any issue. 

TH£ COURT: Yes, don’t see the relevance.
0 Dr. Raster, is it possible to change behavior
pattsrns in tho school system?
A Yes, sir.
Q Bow do you do this?

A Nell, it depends on what behavior pattern you
want to changa.
Q Take an example.
A Nell, if I want to change a psycho-motor skill,
1  change it in ona way» and if I want to changa attitude, I 
do it in another.
Q Let’s talk about attitudes.

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A All right. First, thing you do is —  soil, there
srs a number of ways. Gsnsrally speaking, attitudes can be 
changed either by changing the overt behavior responses that 
reinforce that attitude or by changing one's perception of 
things, reality around then. So, it appears that a combination 
of both would substantially increase the probability of chmgioi 
the attitudinal pattern.

Now, what I would suggest is that you arrange 
the conditions around the individual in as nearly as possible 
the situation in which you expect them to function. This is 
also the theory of social psychologists, such as Thomas 
Pettigrew and Kenneth Clark. And, that means that If I wanted 
them to change their attitudes about, oh, let's just take a 
hypothetical dimension, race, I would —  I would put them in a 
situation in which they were interacting with other races.
And then, feed in learning exercises to alter perceptions to —  

and the combination of the two ought to be quite effective 
in changing attitudes. And, in fact, Levin Kirk, in the 
early thirties set this up as a model and social psychologists 
all over the world are still following it substantially.
Q Bow would you react to an individual example
of resistance to this kind of effort?
A An individual example of resistance?
Q Yes.
A Probably in a counseling situation.

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K*tt*r - Cross 1556

Q All right. A*y other wsy?
A W m l l , that’s tha most individual way to handla
it, I think.
Q All right.
A He could find, for inatanoa —  and I don't
naan counseling naeassarlly has to bagin by —  by just 
thn faculty or staff but sonatinas to your frlands who have 
different perceptions and perhaps nore positive perceptions, 
healthier self-concepts, being freer of racial prejudice 
will be able to help their pears sea differently. And, not 
by coercion as nuch by example as anything else.

If he is not afraid, eaybe there's not a reason 
for w  to be afraid of this other race. Maybe their being 
black doesn't naan that they are evil and so on.
Q Have you any experience with providing educational
leadership?
A Yes, I'd say I did have.
Q Mould you specify, please?
A Yes. I think I provide educational leadership
whenever 1 speak, too faculties or ay students or take part 
in a special program such as Suln>on (phonetically) which I
mentioned was a community education program —  and when I 
speak at special occasions or deliver papers or —  or function 
administratively.

Have you ever had any decisional responsibility

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in tbs area of educational leadership?
A When I was principal of the lab school, 1 did.
0 And when was that?
A In 19CC-67.
Q Since then?
A Well, yes, in administering the educational
i<«y —  undergraduate educational psychology prograa at the 
University of Miami , I aa administrator-coordinator of the 
undergraduate psychology.
0  Any decisional responsibility where your
responsibility was to a tro*u group of the citixeary?
A I have not except that I consider ay
responsibility generally to the society in which I live.
Q In your examination of the Chattanooga School
System, have you identified any alternatives that whita and 
black paranta might have to desegregation on a racial balance 
basis?
A The parents have? I didn't know they were
making the decisions, sir.
Q I merely asked you if you had, the parents or
the children either one or together that they have any 
alternative?
A I really don't understand your question. Would
you rephrase it?
Q All right. In your examination of the Chattanooga

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Raster - Cross 1558
School System —
A Yes, sir.
Q Did you identify any alternatives that are
available to white parents and/or black parents of children 
if they dislike the racial balance that exists or nay exist
in the city system?

MR. WILLIAMS; I object to that, if Your Honor 
please. That is in —  inadmissible under clear decisions.

THB COURT; Perhaps I didn't understand. Mould 
you restate your question?
Q In your examination of the Chattanooga School
System, did you Identify any alternatives, any options that 
white and/or black parents of students in the City School 
Systen may have if they do not like the racial balance or a 
decision in that neighborhood, in that general character?

MR. WILLIAMS: That's —
THE COURT: Frankly I do not understand the

question.
MR. WILLIAMS: The question obviously is

ambiguous but it obviously relates to conmunity hostility, 
if Your Honor please, which the —

MR. WITT: (Interposing) I an only asking him
if he has identified it.

MR. WILLIAMS: It cannot be considered whether
he identified it or not. It is irrelevant unless it can be

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tester - Cross
considered by the Court in this case, if Tour ■poor please.

thb c o g r t: Well, perhaps the witness understands
the question. Quite frankly, I do not understand what you are 
talking about. You are talking about options and the context 
that you stated in your question? I'n going to sustain the 
objection.
A i could only guess —

THE COURT: I an going to sustain the objection
unless the question can be clarified.
Q Do you recognise the "tipping point"?
A Yes, I do.
0 What does this wean?
A That there are sowe people who hold the hypothesis
that once the racial balance in a school roaches a certain 
point that it will go all the way ewer to the other race 
and that there is a critical tipping point.
Q Does this indicate —  how do the people that
leave, where do they go?
A What's that?
Q Well, you indicate —  your answer to wy question
indicates that parents and children wake decisions not to go 
to a certain school where—
A ^Interposing) Hr. Witt, obviously —
Q (Continuing) —  where do they go?
A —  as can happen in a school aystee that's not

1559

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Kester - Cross 1560
f u l l y  Integrated, not even desegregated by your distinction, 
thsy nay just take a transfer provision such as B and go out 
of the district. That's a possibility, but we find that 
racial tipping points do not —  are not critical issues at 
all in a desegregated systeai.
Q wall, but in your experience, where do —  what
are the kinds of places that people go?
A i told you they can go to aaotiias* district if
you don't have desegregation in your school system. Obviously, 
too, you are referring to Washington, D. C., .thing where people 
aoved out. They way leave the state, but they may leave the 
country, you know. There are people in this country who 
advocate love it or leave it.
Q Would you say that the people in Washington that
left had an alternative?

MR. WILLIAMS: I object to this, this is argusmnti
MR. WITT: I don't nean it.

Q All right. Now, in your direct examination,
you made the statsesnt that —  I withdraw that.

Now, referring to your opinion in which you 
condemned the action of the Chattanooga School System with 
regard to integration —  desegregation, do you consider that 
all s ch o o l systems have the same obligation or criteria, same 
obligation that is reflected in your judgment of this school 
system?

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Eester - Cross 1561

A 1  think all school systsms have the obligation to
fulfill the law and the Constitution of the United States, 

live up to it.
Q And I believe, then, by your previous testimony
you mean to have an integrated system, is that correct?
A That's right, sir.
Q Now, is it correct, also, that you Identified
Berkley tentatively as the school system that best fits your 
definition of integration?
A i think Berkley best fits my definition of
integration but that's —  that's not the best school system 
that fits it. * * 8  the one that I know most about.
Q All right. Mow, and I believe I also asked you
if you could identify any other school systems that fitted 
that definition and your answer was —

MR. WILLIAMS; (Interposing) Object to it as
repetitious.

MR. WITT; Laying the ground work, nay it please 
Your Honor, for another question.

THE COURT; Well, state your next question.
A Well, I nay know of some others but I don't
know then —  you asked ne about first-hand knowledge. Just 
knowing about them, you know, occasionally you read an article, 
by that I mean sometimes, I guess about 15 publications a week 
go across my desk. That is major volumes, so I skip through

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tester - Cross 1S62
and I nay run across soswthiag that says, oh, for instance, 
Harrisburg, Pennsylvania, has achieved racial balance in 
their school, but I didn't read all through that, so there 
are probably others that I know about according to the reports 
but not as thoroughly acquainted with It as T as Berkley.
So, within that limitation I will say yes.
0 Then, your characterisation of the Chattanooga 
School Systeal would also fit equally well 99 percent of the 
school systems of the United States?
A No.
Q Which ones?
A Excuse me. I am not understanding your question,
then. Maybe we are not cossnanicating here, again.
Q I stated that it appeared that using your
criteria and your testimony with reference to l e i  1 1 sj 
your reference to your concept of integration and your 
concept of compliance with the lev and your response to my 
question that the only system that you knew of that net 
this criteria was Berkley, then I asked you doesn't your 
condemnation of the Chattanooga 8chool System equally apply to 
99 percent of the school systems of the United States?

MR. WILLIAMS: Object because I don't understand 
th*t question. I am scared for the witness to answer it if
1 don't understand it. I don't know what —  whether to object 
to it or not.

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Raster - Cross

THE COURTs If ha understands It, ha nsy answer. 
If ha does not, ha stay so state.
A Hall, I an going to have to olarify in m y answer
is what I was going t» *»tart t~> do. Your Honor, to sea that 
I an understanding what you are saying.

In the first place, you are saying that if Bartley 
is an integrated systan and it’s the only one I know about, 
than all 99 percent of the rest of than in the country are 
not up to par? You understand I said I didn't know about 
all the rest of than in the country. If I could speak for —  

sane knowledge of all the school systems in the country, I 
night could than coma to s o m  decision about percentages. I 
doubt that it's 99 percent, but I an sura there are nany 
other school systems that's decided to take the lead in 
establishing what appears to be a basic human right, and I 
don't think it’s anywhere near 99 percent. But, I would say 
that I could agree with you that a majority of the school syste 
in our country perhaps have not achieved equal rights for all 
their citizens including the students in this school system. 
But, I an not called in to evaluate the rest of the systems 
at this point.

MR. WITT: Thank you. Dr. Raster.
THe COURT: Anything further?
MR. WILLIAMS: Nothing further from this witness.
THE COURT: All right.

1563

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THE WITNESSt May I ba excuned, Tear Honor? I 
need to 9 0  to Miami.

THE COURT: Wall, the witness la asking if ha
may ba excused from further appearance in this trial.

MR. WILLIAMS: Tea, ao far as I am concerned.
the COURT: Vary mall.
MR. WITT: Yas.
THE COURT: All right.

(Witness aroused.)
MR. WILLIAMS: Plaintiff calls at this time,

calls Dr. Michael Stolaa.
MICHAEL J. ETOLEg,

a witness called at the instance of the plaintiff, being first 
duly sworn, was event ned and testified as follows:

DIRECT EXAMINATION
BY MR. WILLIAMS?
Q This is Michael J. Stolen (spelling) S-t-o-l-e-e?
A That is correct.
Q Dr. Stolee, where do you live?
A I live at 6(11 San Vicente Avenue, Coral Gables,
Florida.
Q What is your age?
A I am 40 years old.
Q Your occupation?
A I am Professor of Education in Administration and

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Stoles - Direct
Associate Dean of the School of Education at the University of 
Miami.

Q Will you state your educational and professional
background and qualifications, please?
A Yes, sir. You mean here in terms of degrees and
experience?
Q Yes.
A i hold a Bachelor of Arts Degree with a dual
major in History and Speech from St. Olive College in Northfield, 
Minnesota, earned in 1952; Master of Arts Degree with major 
in Educational Administration from the University of Minnesota, 
granted in 1959, and —  excuse me, a Doctor of Philosophy Degree 
in Educational Administration with a supporting field of 
General Education from the University of Minnesota, granted 
in 1963.

Now, as far as my educational experience is 
concerned, I was a high school teacher of Speech History 
in Adams, Minnesota, during the 19 —  the two years from 1952 
until 1954; hiqh school principsl and taught an occasional 
class in the public schools of welkin, Minnesota, froe 1954 
until 1956. I was superintendent of schools in Russell, 
Minnesota, from 1956 to 1959; superintendent of schools 
in Clarkfield, Minnesota, from 1959 until 1961.

During the period 1961 and *2, I was a part-time 

instructor at the University of Minnesota while I was in the

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Stolee-Direct 1566

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\doctoral residence, supervising student teachers in the public
\

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‘schools of Minneapolis, miring tl>e 1962-63 school year, I was 
still a part-time instructor and in doctoral residence at the 
University of Minnesota where I was an associate with the 
Bureau of Field Studies and Surveys, making school studies 
throughout the upper Midwest.

In 1963, I want to the University of Miami as 
Assistant Professor of Education in Administration; remained 
there unil 1965 when I thought things looked better at the 
University of Massachusetts. I got to Massachusetts, discovered 
I should have stayed in Miami, so at the end of the 1965-66 
school year, I returned to Miami.

Since that time, in addition to the two positions 
I mentioned in response to your earlier question. Professor 
and Associate Dean, was Associate Professor, I was Chairman 
or Coordinator of Graduate Studies for the School of Education.
I was Director of the Florida School Desegregation Consulting 
Center.

J
0 Is that a Title IV center? I
A Yes, that’s funded under Title IV of the Civil
Rights Act of 1964. And I believe that pretty well covers my 
history.
Q
Title
A

All right. How long did your association with the
iIV center continue?

It commenced —  well, I had a hand in writing a

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proposal during the spring of 1945 before I want to Massachuset 
and then I took over as Director of the center when I returned 
to Miani on July 1, 1966.

StolM - Direct 1S47

I maintained the title of Director until September 
1 or August 31, whatever it would be, 1969, when I bansaw 
Associate Dean, and at that time, because I could not hold 
the two positions and because 1  was intimately involved 
with the Dade County Schools and desegregation. I maintains1 
my connection with the center by becoming Assistant Director 
through the 1969-70 school year.
Q All right, sir. You are a member of any
professional organisations?
A Yes, sir, you want me to —
Q (Interposing) Indicate those, pleaee.
A I am a esembec of the American Association of
School Administration, National Association of Secondary 
School Principals, National Society for the Study of Education 
for the Phi Delta Kappa.
Q What is Phi Delta Kappa?
A Means honorary men who are in the field of
education, done graduate work and adjudged by their peers 
to be acceptable according to soam rather foggy criteria.
Q Are you a member of several other professional
associations which are listed lx, your vita here?
A Yes. I have them listed in my vita, I am a

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stolee - Direct 1568
life member of the National Educational Association.
Q Are you also guilty of numerous publications
which are listed in your vita?
A Yes, they are listed.
Q You can't mention any of those that might be
relevant in relation to your expertise in —
A (Interposing) Well, some of them have been
plans for the desegregation of various school systems and 
one that I co-authored with —  with the man who is director 
of the center during the year I was in Massachusetts, Dr. 
Harry Hall, called, I believe. Curriculum Innovations for 
Desegregated Schools or some such. Most of the writing that 
I have done recently has been writing that's been presented

ito school boards or to courts or governmental agencies 
concerning plans for desegregation.
Q All right. Have you prepared many or few
desegregation plans?
A I suspect I have probably prepared as many as
any one man in the United States. I have —  I eat down and 
tried to list them the other day. I think I would up with 
some 50 or 55 or 60 on which I have worked.
Q All right. Will you just mention a few of the
systems for which —  don't try to list them all but just 
mention a few of the x>jtt ..4tu ruling ones.
A Okay. I'd like to categorize them by whom I was

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Stolee - Direct 1569
working for. It would help me think.
Q All right.
A I worked with the United States Department of
Justice in preparing desegregation plans for the schools 
of Norfolk, Virginia; Houston, Texas; and had a more peripheral 
part in preparing a plan for Hinds County, Mississippi.
And, I think it was 2S other counties in the s aw action.

with the NAACP legal defense funds in Roanoke, 
r.’lnia; Lynchburg, Virginia; currently Savannah, Georgia; 

and West Memphis, Arkansas; and with school boards in sow 
state agency in —  well, let's see, I can't reswmber the 
number of school districts in Pennsylvania, I have done 
about 40 studies in Pennsylvania; with Dade County, Florida; 
Leon County, Florida; Tallahassee, Volusia County, Daytona 
Beach —  must be 20 or 30 for Florida counties; Pittsburgh, 
Pennsylvania —  excuse w .  I should add Pasadena, California, 
to ray list that I worked with the legal defense fund.
Q All right. I should have mentioned in connection
with your publications one that I note here, a summary report 
of six school systems, Florida School Desegregation Consulting, 
University of Miami, 1968, is that an examination of school 
systems there in reference to their desegregation?
A That led to a brand new, a funding program from
the United States Office of Education wherein we studied two 
districts which had black majorities and were rural, isolated

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Stolee - Direct 1570
school districts in each of three states, Mississippi, Georgia 
and South Carolina, in which we were trying to get the 
resources under some of the various congressional acts and 
appropriations for education to be of particular assistance 
to these school systems. And, we wound up with a rather 
interesting program. It included such places as Bast 
Tallahassee, Mississippi; Kingstree, Kingstree. South Carolina.
Q Dr. Stolee, I note here another of your publications
entitled "Racial Relations in the Schools in the Onited States, 
Decisions Leadinq to and Following Brown," that you authored 
jointly with Anthony F. Malafronte. Did that likewise relate to 
school desegregation?
A Yes, sir. Anthony F. Malafronte is president of the
Dade County Classroom Teachers Association and we are both 
members of the National Organization on Lagal Problems in 
Education, which is made up of school administrators, 
professors and attorneys interested in school lav. That was 
a paper that Mr. Malafronte and I prepared to deliver to be 
held in Miami Beach, I believe, in 1969, probably.
0  I notice that you list in your vita numerous
professional consultations. Do you care to mention any of 
those?
A Well, I think the most significant things there,
Mr. Williams, would be the approximately *0 school systems 
of which I worked in the Commonwealth of Pennsylvania during

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Norfolk, Hinds County?
A Norfolk, Virginia. Let's see, Virginia place,
Norfolk, Roanoke, Lynchburg, Hinds County, Mississippi.
The hearing was in Jackson; Houston, Texas, where we dealt
with the Houston Independent School District; Dade County,
that is Miami, Florida; Leon County, Tallahaseee, Florida.

MR. WILLIAMS: If it please the Court, I should
like to introduce the vita of Dr. Stolee as the next exhibit.

THE COURT: Exhibit 123.
(Thereupon, the document referred to above 
was marked Exhibit No. 123 for identi­
fication, witness Mr. Stolee, and received 
in evidence.)

0 State whether or not at my sreguest you have
prepared a plan for the integration of the Chattanooga 
School System?
A Yes, sir, I have.

MR. WITT: May it please the Court, I do not
understand T Y .n relevance of that question.

THE COURT: Well —
MR. WILLIAMS: The plaintiffs proposed to present

to the Court a feasible plan for the integration of the 
sch o o l system since the defendants have not. Your Honor please 

THE COURT: W e ll, to the extent the plan may
at this particular point assist the Court in identifying 
any deficiencies in the present system insofar as it may or

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Stole® - Direct 1573
ly not comply with the law, let it be admitted.

Q Dr. Stolee, what assumptions did yon nee in the
preparation of this plan?
A Well, in any preparation of any plan by a person
who is not permanently connected with the school system, the 
basic assumption is the accuracy of the data which are provided 
I am assuming the accuracy of elementary attendance senes as 
shown on one of the exhibits. I  think it was entitled "A rte  id 

Zones for 1970-71."

* relying on the accuracy of the student and 
faculty assignments by school as reported to the United States 
Department of Health, Education and Welfare, Office for Civil 
Rights. And I think it’s Form 201C, one such like that, due 
on October 15th, this one submitted October 15th, 1970.

Then, upon a statement received frem the 
Chattanooga School authorities listing the enrollments by 
race of the various schools for the number of years into the 
past.
Q All right.

MR. WILLIAMS: May it please the Court, I wonder
if we could ask the Clerk to get out Exhibits 13 and 19?
These are maps. They are large naps.

THE COURT: Exhibits 13 and IS?
MR. WILLIAMS: They were the maps relating to the

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elementary and junior high zone changes. They were rolled up

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Stolee - Direct 1574
into a roll. All right.
Q Mow, Dr. Stole*, you referred, in stating your
assumption, you stated that you assumed the accuracy of _
of the school zones as they were contained on certain maps.
Was this the nap to wMch you referred, this Exhibit 13 for 
elementary schools and a similar map which has been introduced 
today in this case as Exhibit 19 for the junior high schools?
A Yes, Exhibit 13 I used for the elssmntary schools
and if Exhibit 19 is the similar one for the }anior high 
schools.
Q Just bringing it here, take a look at it and see
if it's not the one.
A Yes, sir, that is the one 1 used on the junior
high schools.
Q All right, sir. Mow, did you, using the dfrts*
which were furnished by the School Board, did you — an 
examination to determine whether or not the system is presently 
segregated or integrated?
A Yes. Might preface this by giving you one more
assumption I made, Mr. Williams.
Q Yes.
A And that is that the school system did in fact

enforce the attendance of children in the attendance zones 
that they have referred to in this case.
Q All right.

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A I’■ sorry. I forgot your question.
Q How the next question I asked was whether or net
you made any examination to determine whether or not the 
school system is presently segregated or desegregated?
A Yes, I did on the basis of the data, aid I case
to the conclusion that the school system io not desegregated.
I believe you could say that it is segregated.
Q All right, sir. Will you describe your plan?
A Well, I view a segregated school system as a
school system in which the schools are clearly identifiable 
as being for students of a given race. One of the things 
that I did was to compare the majority of the race of the 
majority of students in each individual school with the race 
of the majority of the teachers in each one of the schools.
I found of the total number of schools in Chattanooga with 
three exceptions, the race of the majority of the faculty 
and the race of the Majority of the students are congruent, 
they are exactly the seam. In other words, you can identify 
the race of the students attending a school by looking at 
the race of the faculty. %is is true of both black and 
white schools.

The three that did not conform had a majority 
black student body but a majority white faculty. There
were no schools that had a majority white student body and 
a majority black faculty.

I looked at it in one other way. I looked at the
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Stole* - Direct 1576
race of the principal and the race of the Majority of the 
children attending each individual school, had, X found 
exactly the sane pattern that, again, with only three 
exceptions, of those three exceptions, two are included in 
the three exceptions In the first case X Mentioned. But, 
one is a different one —  with only three A*rtoritl4w s , *■»>• 
majority race of the students of the school indicates the 
race of the principal of that school.

Looking that —  looking at that together with —  

looking at the reports given to ue, copies of Materials 
submitted by the School Board to —  to tha Court, I believe, 
to you and copies of the Material submitted by tha school sysb 
to the Office of Civil Rights, hecsMa very apparent thet these 
schools are just plain racially identifiable! thet in the 
very few cases in which the schools are not racially
identifiable, it is white professionals dynl In-j with black

/children rather than the other way around.
I neglected to state that in each case wherein 

the race of the principal is different from the race of the 
Majority of the students, once again, the students are blackI
and the principal is whits. No ease of a black principal. 
Majority of whits students,

I cast* to the conclusion from that that you *d* /
have to say that this school systen is operating schools 
that ars racially identifiable which then would he segregated.

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Q All right. Baaed on your review of the statistical
data available, has the school system ever been effectively 
—  has segregation ever been effectively abolished in the 
Chattanooga system at any ties?
A Ho, sir; no, sir.
Q All right, sir. How then —

THE COURT? Are you going into another area,
now?

MS. WILLIAMS? Tea, sir.
I

THE COURT? Perhaps this would be an appropriate 
place to take a noon recess, then?

Let's be in recess for one hour. He will resume 
the trial at 1 : 0 0  o'clock.

(Thereupon, the noon recess was taken.)

AFTERNOON SESSION■— ".1 ■■■■■■ ■
1,00 O'clock P.M.

(Thereupon, pursuant to adjournment for the 
noon recess, court was convened at 1 : 0 0  o'clock p.n., when 
the following proceedings were had and evidence introduced,
to-wit:)

THE COURT: You nay proceed.
Q Dr. Stoles, are you familiar with Exhibit 89,
the population distribution by race map prepared by Mr.

Stolen - Direct

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Stoles - Direct 1578
A Yes, I u .
Q State what if any findings you have made with
regard to the present xoning in connection with Exhibit 89?
A Mr. Williams, I would like to make comparisons
between Exhibits 13 and 89, if I might, in explaining this to 
the Court. I believe Exhibit 13 is the one in front of me, 
the elementary school rones.
Q That reflects the rones for 1970-71?
A Yes, sir.
Q Yes, all right.
A If one were to look at Exhibit 89 down in the
extreme southern end of the city, you will notice there are 
two areas of deep brown coloration. One is the flisy Mood 
area and the other is the Trotter School area.

If yon were to transpose thou two areas over to 
the elementary school rone amp, Exhibit 13, you would see 
that the zones for those schools, if they are to be zoned' 
in that manner, can help —  cannot help to be anything but 
black as far as the student enrollment is concerned.

The same thing is true with the rone of, 90 to 
100 percent black residents on Exhibit 89 which shows —  

immediately to the north of Piney Wood and Trotter, that's 
the Bell and I believe it's the Donaldson School areas, where 
once again given the zones as shown on Exhibit 13, the school 
enrollment could help —  could not help to be anything except

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Stolee - Direct 1579
Mil black. Tha sane is t r a m  la reverse, that tha areas narked 
in yallow in Exhibit 89 ara tha araas, I believe of 90 to 
1 0 0  parcant white residents, and we night look at tha araa 
imaed lately north of tha Tanaasaaa River in tha Rivermont 
area, just to tha north of where your pencil is, Mr. Williams. 
That's all white, and given a none as shown on Exhibit 13, 
tha schools serving that zone could help —  could not help 
be anything but all whita.

So, given tha present pattern of zoning of tha 
elementary schools in tha Chattanooga School System, it's 
extremely difficult to see how —  how tha schools could be 
desegregated using those zones.
Q All right, sir.

MR. WITT: May it please tha Court, I do believe
that we object to this because it's repetitive and there is 
no contention that what ha just got through testifying to is 
not true. The Board has never indicated that that's not true.

MS. WILLIAMS: Well, this is being introduced
preparatory to his procedure in drawing his plan, if Your 
Honor please, as an illustration of the factors he took into 
consideration.

THE COURT: You nay proceed.
Q Now then, will you then describe your approach
in drafting a desegregation plan and the plan itself?
A Well, when I determined, that because of the

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Stolee - Direct 1590
residential patterns of living, that coning would not be 
an effective wanner of desegregating the eleventary schools, 
I had to go to several other devices and the ones that I 
chose are called "pairing* which means to put two aleeantary 
schools together with one of then housing certain grades and 
the other housing the other grades. A standard procedure 
would be to have grades one through three in one of the 
schools and four through six in the other and the school —  

the children from both xones would attend the one school 
which had the appropriate grade for the particular child.

The second method I used was what we call 
qroupinq. It's essentially the same thing only involving 
wore than two schools.

I believe in one case I used three schools or 
in two cases I used three schools in which one of the 
schools atight hold grades one and two, the seormil grades 
three and four and the third, grades five and six.

hnd, the third method that I used was what we 
refer to as "clustering," in which I took a group of five 
schools and let four of thesi operate in grades one through 
four and the fifth one handling grades five and six for the 
entire group of five. And, then, the children who would 
have been in grades one through four in the last school I 
mentioned are distributed among the four schools which have 
the grades one through four.

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Stolee - Direct 1581
art essentially the Methods that I had to 

use after abandoning the idea of zones.
Q All right. Mow, that vaa, I take it, in
rcfaranca to the elemntary and the junior high schools?
A Well, I vas speaking particularly to the
eleeentary schools.
Q Now, talking only of alanantary schools?
A That's correct.
Q All right. Mow then, will you present the plarn?
A yes. Nay I step down to eouat it on the hoard?

THE COUNT: Too nay just wear that oord.
THE WITNESS: Okay. Thank yoc.

Q Do you wish to use that background nap?
A Might be clearer if I —  this first one is a
blank map of the sans pattern as the others that base been 
used.
0 All right.

THE COUNT: Allow this to be mrlted as the next
exhibit in order, will you wish to designate the overlay 
as a separate exhibit?

MR. WILLIAMS: Yes, if Your Honor please.
THE COURT: Allow the nap, then, to be Exhibit 124

and the overlay 125.
(Thereupon, the documents referred to 
above were narked Exhibits 124 and 125 
for identification, witness Dr. Stolen, 
and received in evidence.)

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Stolee - Direct 1S82
Q All right, will yon proceed?
A Tee, sir. I also prepared a two-sheet statistical
suBsaary of what this woo Id do. I wonder, would you want these, 
Mr. Will lasts?
0 Tea, just a soaent.
A i called this the plaintiffs* plan for the
desegregation of the Chattanooga elementary schools by aeans 
of pairing, grouping, clustering and soning to accaupany 
overlay maps narked "Elementary Schools." And there are two 
sheets.

THE COURT: This an additional exhibit, now?
MR. WILLIAMS: Yea, sir, another exhibit. Your

Honor please.
THE COURT: 126.

(Thereupon, the document referred to above 
was narked Exhibit 126 for identification, 
witness Dr. Stolee, and received in 
evidence.)

MR. WILLIAMS: Like to introduce this as the
next exhibit.

THE COURT: Hand it to me, please. 126.
Q All right, sir. Will you explain the exhibit
you have just introduced?
A Yes, sir. May I step down here by the exhibit?
Q Yes, you may.
A On the —  on the statistical summary that was

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Exhibit 126, wea it?

1583

Q Yes.

Q On Exhibit 126, I have the schools by groups end
to illustrate the way this plan would work, I will go through 
the groups quite rapidly. Your Honor, at year desire.

Group A, for example, on Exhibit 126, St. Elmo 
and Trotter Schools. That's outlined on Exhibit. 1  believe 

is 125, is it not, the overlay?
Q Yes.

A Outlined as Exhibit 125 in general and it has
the letter A and shows the location of the two schools. And, 
what we have done there is to put grades one through three 
for the entire area in the Trotter School and grades four 
through six in the St• Elso School, thereby ariving at 
desegregated schools in those cases. Now —
Q (Interposing) I hate to ask you this while you
are standing, but what formula have you adopted to determine 
whether a school is effectively desegregated?
A I considered several formula, Mr. Millions,
formerly, Mr. Williams.

THE COURT: If there are other members of
Board or defendants or parties end they wish to move up where 
they can see the map better, feel free to come up in the —

MR. WILLIAMS: Could we move the map a little
more this way? I think it's not really very 1*1 ear Are you

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stoi - Direct 1584
all right from that?

TEDS WITNESS* Tea.
r n  COUBT: Tara It around. 7 can see. Tara

it —
A In response to your last question, Hr. Williams,
I considered the stats actions of which I was familiar to this 
point, for example, the State of California has said that 
the racial makeup of each school in a school system should 
have the minority group represented within 15 percentage 
points of the percentage of the minority in the entire school 
system. Essentially the same thing was true in Connecticut.
In Pennsylvania, the Commonwealth Unman Relations Commission 
in an action, enforced by the Department of Public Instruction, 
as I remember the formula, they state that each school shall 
not have the minority race deviate more than 40 percent of the 
percentage that the minority group is in the system as a whole.

Now, that Pennsylvania pattern, applied to 
Chattanooga, would mean that if a minority group here is 
considered to be approximately 50 percent, then 40 percent 
of the 50 percent is allowable. In other words, leeway of 
20 percent either wey from 50. Using the Connecticut and the 
California plan, it would have been 15 percent either way from 
50.

So, I triad to adopt something that to mm was 
reasonable, I thought perhaps Pennsylvania was somewhat a littl

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Stole© - Direct 1585
■or* reasonable, giving us a leeway of every school having 
^ro® 30 to 70 percent black or white either way rather than 
the 35 tc 65. And so that's what we worked oa. Bach school 
in this group is within, as I understand, the Pennsylvania 
plan to be operative.
Q Seventy to thirty?
A Tea. i
Q Thirty percent black?
A Yes.
Q You nay now proceed.
A Thank you. Group B is in the original on Exhibit
125. It is shown as Group B on Exhibit 126. It's and
Piney Mood Schools and they are reeossMnded grades one through 
at Piney Mood School and grades five and six in the Cedar 
Bills School.

Group c ,  Clifton Hills and Bell. Group C ia 
shown on Exhibit 126. It's the purple area labeled C, shown 
on Exhibit 125. There we have grades one through three at 
Clifton HUls and four through six at Ball. Now, it ia not 
always possible to have continguoos pairings and group D on 
Exhibit 126, which is shown then as two areas outlined in red 
on Exhibit 125 are the Bast Lake and tha Donaldson Schools.

Now, there is a non—contiguous pairing with 
grades one through three being at East Lake and four 
six being at the Donaldson School.

Group E on Exhibit 126, you will notice, consists
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Stole* - Direct 1566
of three schools, Pinsville, Mores 1 Perk sad Maury. And, 
this is an exaaple of what we'd call the frasplag rather 
than pairing because the three schools are involved. And, 
as shown on Exhibit 125, it's the area in brown. Me have 
grades one through three at Boreal Park, five or fear and five 
at Henry and grade six at Piaeville. PineviUe la a relatively 
snail building and cannot house nore than one grade under 
this sort of a pattern.

Group p on Exhibit 126 is shown as a blue area 
on Exhibit 125 labeled P with the Rivernont, raspaelsi and 
East Pifth Street Schools, with Rivernont serving grades 
three and four; Carpenter, one and two; East Pifth Street, 
grades five and six.

I will have to say nore about Bast Fifth Street 
later because that one presently houses grades five, six, 
seven and eight.

Then group G on Exhibit 126 is ay clustering plan 
and it is shown outlined in green with the letter G on Exhibit 
125, and it has, then, the Tlanlock-Hlghlaad Park-Oak Grove 
and Ridgedale schools sll serving grades one through four.
And, the entire area G then should be soned by the School 
Board so as to include black and white children In each one 
of those four with the black children cosdlng free the Orchard 
Knob Elementary School. The Orchard Knob Elementary School

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serve grades five and six in the entire area.

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explanations on all of 
This la Gleowood and 
Q If you jnat point
A Okay. Group a —
group with the Glenwood School 
two and Moodnore

StolM - Direct

if

Group I la 
And, it's the Avondale and Baa 
together with Avondale housing 
East Chattanooga housing grades

1597

pattern.

to the Court.
125 is this original 
ring grades one and 

through alx.
<n red on Exhibit 125. 

Chattanooga Schools paired 
through three and 

through six.
Mow, the group labeled J, Tour Honor, j on 

Exhibit 126 and each one ■boon In yellow with the letter J 
on 125 are those schools that, under the Misting enrollment, 
fall within that 30 to 70 percent bracket. And so, what the 
table represents la their enrol lnents as they exist today 
and was not roooenaedlng any change In their sooes or 
structure. That would be the Asolcola-Brown-Sastdale-Garber 
and Sunnysida Klanaatary Schools.

I should also say, Tour Honor, that the data 
shown on Exhibit 126 by grade are the present year enroll— etc 
as reported so ona would have to assume there would be so—  

differential between this year and next.
Group K is Howard and Barger as shown in blue 

on Exhibit 125. Howard School hare, Barger on the

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Stolee - Direct 1598
east side of town.

Group L is the Davenport School and the Missionary 
Ridge School. They are shown in brown on Exhibit 125.

And than Group M, the Smith School and the Long 
School, they are shown in red with the letter M on Exhibit 125 
and would follow the same pattern as the other pairs.
Q All right. Mow, you mentioned —  there are two
or three things 1 want you to clear tap. You mentioned that 
these pairings are based on the statistical data for the 
current year and that that might differ next year. Do you 
expect it to differ significantly?
A Mo. I looked at the enrollment report of the
school system and enrollments have been holdincr quite steady 
over the last ten years. There's bean a relatively minor 
change in the proportion of black and white students in the 
city, but essentially this appears to be a school system with 
relatively stable enrollment.
0 All right. Are these pairings also based on the
present zones?
A Yes, sir.
Q Combining the schools based on the present zones?
A That is correct.
0  What advantage is there in that?
A Wall, that gave us our bast data. If you start
with the assumption that —  that the school board, or school

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Stolee - Direct 1589

people have indeed been enforcing the zone attendance require­
ments , and if the data as to the enrolleant of each school 
by race are then correct, then that gives you a place on 
which you can plant your feet and start developing sane ideas.
Q All right. A final question. I notice that by —
that for the nost part these pairings and groupings of 
schools are contiguous or nearly contiguous. But in same 
instances, they are non-contiguous pairings of soaes.
A That's correct.
Q I assume that will require soae transportation
of children?
A Tea, it would.
Q What about the transportation nets in the City
of Chattanooga in reference to that?
A I have not looked into the public transportation
in Chattanooga. I have —
0 (Interposing) I am referring to the road nets.
A To the road nets, oh, excuse me. Triad to poll
the route of easy co— nnlcation, you will notice. For example, 
that we have the Barger School and the Howard School paired 
and they are easily accessible one from the other along 
1-24, Interstate 24, that any school vehicle might operate 
on to get to one to the other very quickly. Anothor group 
is Missionary Ridge and Davenport and same thing is true 
there and the longest distance is Long and Smith, and they are

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using 1-75, 1-24 and 124
Q All right.

Stolee - Direct 1590
, accessible, it's quits speedy, too. 
How about tha RiVermont-Carpenter-East

Fifth?
A Wall, tha —  I believe at iilxoon Boulevard ass
tha ona I drove on. I think that's tha d s m . Hixson Pika, 
excuse na. Hixson Pika ocwaas down through tbs area and they 
connect with a bridge that is reasonably close to tha Carpenter 
and East Fifth Street Schools.
0 You haws anything further to say about tha 
elementary plan thus far?
A Hot at this point.
Q All right. Will you proceed with the remainder
of tha plan? All right. Dr. Stolee, before you go farther,
1 think perhaps we may haws been assuming something. Wa went 
to make certain that tha Court is —  that it's specifically 
in tha record.

with regard to Exhibit 126, the listings of 
figures under each grade opposite each school reflects your 
projected enrollments in those schools, in those grades of 
those schools of respectively black and white children 
based on the current year's enrollment, existing enrollment 
in those respective schools, is that correct?
A Yes. For example, on the St. Elmo —  let me
use the Trotter example in Group A on Exhibit 126. The —  

where i t  says grade one, it has under column S& end under

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Stole* - Direct 1591
Column W, 63. That would main that adding together the enrolln 
record for thla year, black children in St. Elmo and Trotter 
there would be 55 black children. Adding together the enrol 
of white children in grade one in St. Elmo and Trotter tills 
year, there would be 63 white children.
Q Tou'd send all of those children to Trotter
School?
A
Q
A
Q

Yes,sir.
And then so on in each grade?
That's true.
And beginning in the fourth grade, the

would be true of the sixty, although the sixty blacks —  

the B and the W mean respectively black and white?
A That is correct.
Q And the sixty represents all the fourth grade
children presently enrolled in both schools, all the blacks 
and the 52 represents all the white ones presently enrolled 
in both schools, and they would be sent to St. Elmo School and 
so on up through the sixth grade?
A That is true.
Q And then, the total column represents the total
black and white children in each of those schools, the 
resulting enrollment and the percentages —  the percentages of 
black and white based on those enrollment?
A Yes.

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Q And that procedure has
the exhibit, is that correct?

Stolee - Direct 1592
followed throughout

A
Q
A
Q

Well —
Except for the Aanloola situation?
Yes, throughout that exhibit.
J of that exhibit which singrly reflects the 

present enrollment of those schools?
A Yes, that is correct.
Q Subsection J. And is that the same procedure that
is followed in your junior high exhibit that you are about to 
present?
A wot exactly, sir.
Q All right. Well, will you —

MR. WILLIAMS; If it please the Court, nay we have
the next —

THE COURT: Exhibit 127 will be the overlay.
(Thereupon, the document referred to above 
wes narked Exhibit No. 127 for identificati 
witness Dr. Stoles, and received in evidences

Q
A

And I have with that overlay, air, another table.
All right.
THE COURT: 12S is the table.

(Thereupon, the document referred to above i 
narked Exhibit No. 128 for identification, 
witness Dr. Stole*, and received in evidenc^.)

Just one table?
Yes, sir. Now, Exhibit 127 is labeled, "Junior

R l f H A R O  S M I T H  O F F I C I A L  C O U R T  R E P O R T E R

on, 
.)

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Stole* - Direct 1553
High Schools," and what it is is * set of proposed sonss for 
the junior high schools that would result in the desegregation 
of the junior high schools. It follows with but two 
exceptions, el■■antary school soaes.
Q Is that an accepted practice, following elementary
sons lines?
A Hot necessarily. It's neither here nor there.
In this case it was a necessity because the data we to 
work with were based on eleeentsry attendance zones. And so, I 
followed elementary attendance zone lines as I said with but 
two exceptions that I will point out as I go along.

And, this school system seems to experience a 
junior high school enrollment that's approximately equal to 
52 percent of the elementary enrollment. So, using the 
elementary data, then, we figured each elemnntsry school 
attendance zone as shown on exhibit 13 would generate 
approximately 52 percent of the current elementary enrollment 
for the junior high schools and that ties the basis of the 
calculations.

Now, I have these illustrated by name. You will 
notice down in the southwest corner of the oity on Exhibit 
127 is a green area. And, it has the name Alton Park written 
0X1 it. That would be the Alton Park Junior High School 
attendance zone. And, it would include essentially the 
elementary zones currently being served by St. Elmo, Trotter

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and Clifton Hill* —  i believe 
Clifton Hill*, st. Elmo and Trotter.

Stole* - Direct 1594 
—  * 1 1 ,

The table that** Exhibit 128 is built in the 
Boxm way as 126, Exhibit 126, with each grad* indicated, the 
letter b indicating black students of that grade j the letter 
W meaning white students.

Q That'* 1 ® the fteeder schools listed on
the right? l) other words, under grade seeen that's e,rreft*h 
number of black and whit* children in grade seven in all of 
the feeder schools?
A y*s .
0 On the right?
A As the figures occur and cite the 0f the
school. And, after Alton Park, then considered Brainerd. 
And, the Brainerd area would be the Barger awS Sunnyside 
Elementary School areas plus the area currently bt««g served 
by the elementary section of the Howard School complex.

aal.**oo<2 Junior High School as shown on Exhibit 
127 in orange. It would include the Bastdale, ~ Ian snort an<j 
Noodwor* areas. The East Fifth Street School I show on 
as being a 3-year junior high school and would include the 
children costing into it from the grades five and six in
E*8t Fifth Street and the areas served by Carpenter and 
HiVermont Schools.

Tbe East Side School —  East Side Junior High

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StolM - Direct 1595
School is one of th« areas in which I dsriitsd fros the 
el an antary attaoduea sonas. East Sids is shown in thn 
porpls on Exhibit 127. Orchard Knob is shown in brown.
Now, the deviations are that the north boundary of both 
of those junior hinh sschool sooas is not sasas as the 
•lssMntary attendance sones for the Avondale Elementary 
School, but it is rather designed to cut off a portion of 
the Avondale attendance sone; that that line would have to 
be considered as being flexible in order to get the proper 
ouabwrs of children to Hardy as well as to Orchard Knob and 
to East Sids.

Also, the line that separates Oofcard Knob from 
Bast Side Junior High School is not along any elementary 
attendance sone. And, once again, is a line that would have 
to be adjusted as the July enrollments occur to get the 
proper number of children for the plant capacities and the 
facilities of the Bast Side Junior High School and Orchard 
Knob Junior High School.

The East Lake —  East Lake Junior High School 
would serve the attendance sones of Cedar Hill, Donaldson,
East Lake and Piney Ridge Elawantary Schools. The none for 
the Hardy Junior High School shown in red on Exhibit 127 would 
include East Chattanooga, Garber, Awnicola and the remainder 
of the Avondale attendance sone ramamber that a portion of 
the Avondale attendance zone goes to Orchard *«**»*» or East Side.

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Stole* - Direct 1596
The Howard Junior High School which la thorn on 

Exhibit 127 in blue wooU ir-clede the — excuse m m , in yellow, 
sir, in yellow, would include the attendtam sows of the 
Davenport and smith Schools in the central part of the city, 
the Long School and the Missionary Ridge School in the 
eastern part of the city. Once again, thinking in teres of 
the access via the freeway systae. It does not appear that 
the junior high school program needs to be maintained at 
either the Long or the Lookout Junior High Schools. They 
are both extremely small schools educationally speaking.
It's not possible to provide the breath of experiences in 
those saw 11 junior schools as it is in the other. It appears 
that the City School System did not need the capacity of 
those two schools for junior high school purposes, and so I 
did not include them in this plan.

Horth Chattanooga Junior High School shown in 
orange on Exhibit 127 would serve the areas of Brown, Henry, 
Normal Park and Pinevilla, this antir# area shown in orange 
here. Then the Orchard Knob School, I have already discussed. 
Q All right. Now, in reference —  in reference to
the Long and Lookout Junior High Schools, Long is listed as 
a school, grades one to nine.
A Yes, sir.
Q And how would that building be utilised? Mould
it be —  continue to be utilised?

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Stoll - Direct 15*7 
school.

would have 
children.

assigned to that

A Continue to be utilised as an
On Exhibit 126, it indicates that the Long 
approximately 343 first, second and third 
Q And the Lookout School?
A I do not ▼localise any children
school.
Q The Lookout School would be abandoned altogether?
A Well, I was very careful not to use those words,
sir, because it's being used by the school adoaiaistrative 
offices.
Q Oh, I see. All right. Do you have further
cosssents about the junior high plan?
A Mot at this tins.
Q All right, will you proceed with the high
schools?

THE COURT j O v e rla y  will be Exhibit 129.
(Thereupon, the document referred to above 
was marked Exhibit 129 for identification 
witness Dr. Stoles, and received in 
evidence.)

You alec have a statistical exhibit?
Yes, I have a table to accompany the —
THE COURT: Exhibit 130.

(Thereupon, the document referred to above 
was marked Exhibit 130 for identification, 
witness Dr. Stolee, and received in evl

MR. WILLIAMS: Give the original to the Court.
Very well.

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Stole* - Direct 1S9I
will you explmie the sealer high plea?

A Tee, sir. Exhibit 129 is ee acetate overlay
la comon with Exhibit 125, 127, ere designed he go over 
Exhibit 124, which wee a base asp. This one shoes jest a 
plain zoning pattern for the four senior high schools.

It's ey understanding that Kirkean Technical 
High School serves a city-wide function and is a S|iaiilaMfroi1 
high school. I did not include T1 it ess ie this plan.

The area outlined ie black is a sons that I 
believe would work for Chattanooga High School soot queers11j 
known as City High. The area ootliasd ie purple would be an 
area served by Howard High School; area ie red by Riverside 
High School; and the area in green by Brileon! High School.

Now, there ie previoeely teetlnoey here es to what 
would have to be done to none these schools, and X was 
very interested in that because it was alaoet exactly what 
I had done—  what X did, by having Braiaexd High School be a 
desegregated facility by including ouch of the area of Orchard 
Knob in the Bralnerd District to get black children ie attends n 
at Bralnerd High School,

At Riverside, we had to take 1a ease of the area 
being served by the Rldgedale School, Highland fork, Henlook, 
as well as East Chattanooga and Aanioola. Aueloola is 
majority black but East Chattanooga area ie order to get
white children to desegregate Riverside.

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At Howard High School wo had to toko in the 
St. Elmo area, the Coder Hill, Clifton Hills, loot 
oroas in order to get an adequate number of white children

Stoles - Direct 15",

to Howard. And, as was Mentioned in testimony « while ago, 
in order to get an adequate naeber of black children to 
Chattanooga High School, we had to take the central part
of the city and rone that to City High —  Chattanooga High

< ■School.

Q *11 right. How —  how do you arrive at »he fi
that are shown on Exhibit 130?

i

^ Wall, there again, 1  was basing it primarily
upon the elementary —  relationship of
to senior high school enrollwants. The senior high school 
enrollments were practically impossible to get a handhold on 
with this freedom of choice thing going f r w  anywhere to any 
place. In addition, it appears that there are c o m  children 
from out of the city coming in. And so, the only kind of 
firm data it as enact to me that I could get ahold of would 
be the , once again, those elementary attendance nones 
with a proportion of the senior high school students, 
expressed se proportion to senior high school students.

Senior high school enrollment here is —  I 
cen't remember the exact fraction —  but 3 9 point something 
percent of elementary enrollment. So, essentially, again it

' - 4.  V  y T

was the elementary attendance sones, using a formula Inf

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StOlM - Direct 1600
to tho elementary enroll— at.
Q All right. And, on Exhibit 130, than, you show
tho 70-71 enroll— nt on the loft and the anti— tod enroll— ate 
aa you project then based on thorn so— s in the table on the
right?
A Tea. I notice on the copy Z bare, the last two
digits in the right hand totals cols—  are chopped off. I 
hope the Court's copy has —
0 (Interposing) Fortunately, the Court has the
original, but I —  afraid counsel's — y be chopped off as 
ad—  is.

t h e WITNESS] Your Honor, do yoe have complets 
digits under total or —  should be four digits —  yes, the 
Court's copy is complete.

MR. WILLIAMS: May it please the Court, could —
ihave the original and read tho—  off so counsel can put th­

in?
Under totals, 1,350, 1,375, 1,310 and 1,035.

Thank you.
A Nr. willia— , I constructed this table somewhat
differently. Thia table I atp referring to is Exhibit 130.
0 All right. Explain it, plea— .
A I did it somewhat differently from Exhibit 126
and 128 in that I have listed on the left-hand side the four 
senior high schools and than where it says tnnl 1 — nt. 1970-71,

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Stoli Direct 1601
i the first column is black. That*s the number of blackkudttta 
■ enrolled in each of thoee four high schools. And percent 
:i means the percentage of the total enrollment that those

6

black students constitute.
The sane is true in the opposite direction, 

obviously for whites and then where, as eat 1 nsted enrollment.

8

Q

ll

1971-72, there again I am estimating the number of black 
children by school and the percentage figure then indicates 
the percentage of total enrollment in the school that those 
black children would represent.
Q All right. And the result of your soning, then.
i s  n e a r  p e r f e c t  i n t e g r a t i o n  o f  each o f  th o s e  schools i f  you look

, 3 at the table on the right?
u A Yes. They are all within 49.1 percent to 51.9
(r percent black.
1 q All right. Could we just by way of dramatic

illustration transfer this high school map to Exhibit »9?
]H Would you assist? I guess that has it, doesn 't it?

To illustrate the extent to which you have
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circumvented the racial patterns by the soning, you don't 
need to point it out. Think it's just self-evident. I wanted
ths Court to see it —  if you think it's worth pointing out 
a g a i n .

A No, I think ths only thing worth pointing out
is t!.jt there are areas of heavy concentration of both black

2 5 and white people in each of the four senior high school zones.
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Stolee - Direct 1602
Q All right. Dr. Stole*, will you now explain
the —  your plan for faculty and staff integration?
A Yea, sir. As has previously been stated, any
high school sophomore —  1 2 -year-old i think was the tern 
used, could develop a numerical scheme for the desegregation 
of the faculties, and I agree with that. I have prepared 
charts showing the amount of teacher transfer that would be 
necessary in order to accospllsh this, and as far as the 
actual methodology of accomplishing it, th^re are two or 
three different procedures that night be employed by the 
School Board.

The point is, I would like to point out to the 
Court, if I nay, the approximate number of teachers of 
each race that wouldhave to be transferred by elementary 
school, by junior high school and by senior high school 
and then within each of those three groups, the approximate 
number of teachers of each race that would have to be 
transferred into or out of any one particular school.
Q All right. Using the data which the school
system has furnished, have you prepared charts?
A Yes. These charts were prepared »iy» data
furnished on the Civil Rights report, the Office of Civil 
Rights and the first one consists of two pages,

THE COURT: Exhibit 131.
(Thereupon, the document referred to above 
wae marked Exhibit Ho. 131 for identificati 
witness Dr. Stolee, and received in

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Stolee - Direct 1603
THE COORT: what Is that exhibit?
THE WITNESS: Elementary teacher transfer plan.

0 Will you explain Exhibit 131, please?
A Yes, sir, it has —  I an talking about the
columns running vertically, now. The first column is the sane 
of each of the elementary schools and sheet two just is a 
continuation of page one giving the names of the schools.

Then, where it says teachers, I notice an error 
there. It should say teachers 70-71, teachers during
the 1970-71 school year. The ought has been left off of the 
*70.

B stands for black. White —  W stands for 
white in the total number of teachers. These are the teachers 
reported exclusive of the principal. And so under that, 
teachers 70-71 column, it indicates the number of teachers 
r Y black, white and total assigned to each of the elementary 
schools at the time that the school system submitted its 
annual report to the Office of Civil Rights in the Department 
of Health, Education and Welfare, due on October 15th, 1970.

The second major column is headed "If Balanced."
Q All right. Now, you have omitted that down at
the bottom of your first column on page two, there is reflected 
percentages. Under the black, 42.4, and under white, 57.6.
What is that?
A The 42.4 under the column of black means that

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of the total timber of teachers reported for the elementary
schools, 42.4 percent were black. Immediately above that 
percentage where it has the word "total" it shows there 
were a total of 202 black elementary teachers. Under ♦‘He 
column "white" 274 white elementary teachers. *tey 
constituted 57.6 percent of the total.
Q All right. Mow, if you will, go on to the next
column.

A Next column, then, is "If balanced.” That means
if we applied the percentages shown of the —  of the teachers 
under the first column, 42.4 percent black and 56.6 percent 
white, if we applied those percentages to each and every 
elementary school in the system, we would then have those —  

the number of teachers as shown in the "If balanced" column.
So, Avondale, for example, would have 11 black 

teachers and 14 white teachers for a total of 25 instead of 
its present 14 black teachers and 11 white teachers for a 
total of 25.

Then, that continues down that "If balance” 
column through page 2 and the totals and the percentages of 
that column are as they have to be, exactly the sane as for 
the first column because we are using the sssm teachers but 
reassigning them.

Q But, the difference is that —  beside each school
in the seeoxtd major column, the percentages of black and white

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«r« the sane as they are at the bottom?
A That * a tree or as close as they coma.
Q fas, * U  right.
A Mow, the last two major columns to transfer in
and to transfer out essentially are mere images of each other 
and perhaps it mould be easiest to explain those two by 
columns by taking one of the schools. Let's take the Avondale 
School which is the second one on the first page. I am 
omitting Amnicola because at the time this report was made 
they were racially balanced cm the faculty. At that time, 
Avondale was not.

The column two transfer in has sero under 
black, that means we transferred in no black teachers. To 
transfer in under if there are three, meaning that we would 
have to transfer three white teachers into the Avondale School.

Then, if we go to the next major column to
transfer out, it shows under "B" for black, three, fiat me__
we would have to transfer out three black teachers. Those 
two columns, as I say, are the opposite.

Where you are going to transfer in, look at the
Barger School, for example, the next one. You are going to
have to transfer in four black teachers and you have to make 
room r ,for them so you transfer out four white teachers.
And, that continues on through until we get to the bottom 
of those two major columns on page two and the totals for those

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two major columns are exactly the b u m .
It says that we would have to transfer 61 

black teachers, 61 white teachers for a total of 1 2 2  irlsmonrni j 
te a ch e rs. It shows that this would represent 2 0 . 2  of the 
black elementary teachers in the Chattanooga Schools.
In other words, approximately 30 percent of the black 
elementary teachers would be transferred.

It shows that 22.3 percent of the white elementary 
school teachers would have to be transferred with a total 
of just a shade above 25 percent of the total elesmntary 
teaching staff being transferred.

**oe, some people sosmitlmes wonder why is it 
that a larger percentage of black teachers gets transferred 
than of white teachers. The answer is obvious. You have to 
transfer ths same number of black and white. They are 
changing jobs and if you start with a smaller number of 
black teachers to begin with, then obviously ths percentage of 
black teachers to be transferred is going to be greater 
the percentage of white teachers.
Q All right. Do you have any further comment about
the elemsmtary phase of this plan? '
A Ho.
Q All right, sir. Do you have an exhibit relating
to —
A (Interposing) Yes, I prepared another table

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shoving how this would work for tha junior high schools.
q All right. Is this a 1-page exhibit?
A This is one page.

THE COURTx Exhibit 132.
(Thereupon, the document referred to above 
was narked Exhibit 132 for identification 
witness Dr. Stolee, and received in 
evidence.)

q All right. Is there any difference about this
exhibit and the other? Do you wish to explain it?
A It's done in essentially the sane way. I would
like to explain the asterisk for Howard and Riverside Schools. 
See, those schools are reported on the Office for Civil 
Rights for*, the October 15th fore, in the Howard case it 
gives data for high schools, secondary teachers, and it's 
not broken down between junior and senior high schools.
So I just had to Interpolate eatheeatically approximately 
what proportion of the secondary teachers assigned to Howard 
would be junior high school teachers and with Riverside it's 
the sane situation only with the ninth grade, considering 
only the ninth grade teachers rather than grades seven and

Ieight, too.
This one, you will notice, indicates that you 

would have transfer 38 black teachers, 38 white teachers,
total of 76. Ttis would constitute approximately 35 percent 
of the black junior high school teachers, 27 percent of the 
white junior high school teachers, and 30 percent total.

Stole® - Direct 1607

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Q YOU
A NO,

Q One thin? that I probably didn't bring out on the
other exhibit, I will ask yon on this last exhibit. I will 
ask you on this one, state whether or not that transfer-ins 
xnd transfer-outs are necessarily concurrent? In other words, 
is it a total of just 76 teachers transferring in and out or 
total of 152 teachers?
A h o , it's 176 because each person who is t e e n jifar i ijl
in is also being transferred out at sane place. And so —

•an 152, twice 76?
No, there's 152 actual aowuneats but they only 

involve 76 people because each person has —  two things 
happen to hie. First he gets transferred out of scan place 
and then he gets transferred into m m  place else. So, it's 
76 people, although there eay be 152 personnel actions involved!. 
0 All right. You have anything further to say
about the junior high teacher transfers?
A No, sir.
0 All right. Do you have the high school teacher
transfers?
A Yes, I have one for the high

THE COURT: Exhibit 123.

Stole® - Direct 1(08

(Thereupon, the document referred to above 
was narked Exhibit 133 for identification 
witness Dr.Utolee, and received in evide

Is this prepared in the wanner as Exhibits

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dice

131 and 132, six?



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A That la correct. But 133, baaed oa the senior
high schools, illustrates that you'd have to transfer 3 4  

blACfc senior high school teachers, 34 white senior high 
school teachers for a total of 69. This would constitute 
approximately 39 percent of the black high teachers,
32 percent of the whits senior high school teachers, or 35 
percent of the total senior high school + * » t * * * ~ j faculty.

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0 All right. You haws any further aoaanent about
this?

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A Yes, sir. I prepared course intonation, just a
sinnary, where I put the totals froe those first three together 
0  Like to introduce this as the next exhibit.

TUB COURT: 134.
(Thereupon, the document referred to above 
was narked Exhibit 134 for identification 
witness Dr. stoles, aad received in 
evidence.)

A This table is called, "Susmary of Teacher Transfer
Plan, Chattanooga, Tennessee,” and very simply it consists

t
of, on the first horizontal column labeled "Elementary” it 
has there the totals that were shown at the bottom of 
Exhibit 131 for the junior high school. It shows the totals 
from the bottom of Exhibit 132 aad for the senI or high schools, 
it shows the totals from the bottom of Exhibit 133.

And then, it totals the entire —  the entire 
teacher transfers and it shows that system**wide axong teachers 
there would be the trasnfers of 153 black teachers,

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Stolee - Direct 1610
constituting 33.4 percent of ths total number of blsek ttaohtrt 
133 whits teachers, constituting 25.4 percent of ths total 
number of whits tsachsrs; and 256 teachers, altogsthsr 
totaling 28.9 percent of ths total teaching faculty in ths 
Chattanooga Public Schools.
0 All right. Do you haws any eoameats to about
ths method? you mentioned that ths aovsMnt of thsss teachers 
could —  was a mathematical matter and could be accomplished 
quite easily. Mould you care to comment oa some method that 
might be employed?
A Yes. Me used a number of different methods
in December and January of 1969 and *70 la response to the 
Fifth Circuit Court of Appeals* requirement of a martini of 
schools in that circuit that they haws racial balance among 
their faculties by February 1 of 1970. I personally developed 
the plans that ware adopted in at least two nnmnnnttlas, the 
Dade County Public Schools.
0 fias that ths plan that was mentioned by Dr.
Kester in his testimony?
A Yes.
Q You developed that?
A i was the author of that plan. That one, that
school system of approximately 1 0 , 0 0 0  teachers, we transferred 
approximately 2,000. And it was dona essentially in the 
pattern that Dr. Kester mentioned here this morning. The

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other one was typified, I suppose, Orange County, Florida, 
which is —  Includes the city of Orlando in which the teachers 
were distributed by lot within each school. T t  they knew 
that they had to transfer out a given medial of teachers, 

each teacher's naee was put on a piece of paper 
put into a hat or scsae such and they were drawn out by lot. 
Those are essentially the two ways, one, the Dade County way 
was based on seniority; the Orange County esthoil was him art 
on chance. Both of thee were done that way for two reasons: 
One, two —  with sons degree of fairness to the teachers.
In one case it was the person who had put in assay years, 
should be entitled to sosm degree of permanence in his 
present position and therefore the least senior people 
would be transferred. In the other it was that wa are all 
in this education business together, and ws should all be 
treated the sane and so wa will do It by lot.

The wain purpose behind both methods and one 
that's absolutely vital is to aake sure that you do not 
transfer the worst white teachers into the formerly black 
schools and the best black teachers into the formerly white 
schools. This has happened in several places. ted, both 
those two systems are developed to keep this from happening.
Q kll right, fine. Is there any problem in faculty
no, boTort I get to that you have any comment in reference 
to the question of willingness of teachers to be transferred

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Stolee - Direct 1612
in * voluntarily transfer system such ss teacher transfer 
systems such as have been employed here in Chattanooga?
A it seems to me that the voluntary teacher
transfer thing is about as effective as freedom of choioe 
in desegregating the schools.
Q How effective is that?
A Ineffective. You get several people —  several
people who would do it but when you have used them, you have 
used up your population of people willing to do it. And, 
there's nobody left and so you reach a certain point and you 
can go no farther.

And, X suspect* that most of the eehool systems ’ 
around the country, at least the ones with which I an 
familiar, have, if they have not gone to —  to mandatory 
reassignment, have reached the end of the supply of people 
who are willing to transfer.

I would like to say one thing, this school system 
with which I was most intimately connected obviously was the 
Dade County Schools. I wrote their plan. I got it adopted 
by the board or the board adopted it on the superintendent's 
recommendation. It was put into effect and this is the 
school system that my children go to and I am quite 
°bviously interested.

We transferred, oh, somewhat less than 2,000 
teachers. It was approaching 2,000 teachers but somewhat less.

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At the eiddle of the year, I inquired of the associate 
superintendent for administration, Howard McMillan, in March 
of 1970 what happened. Did a lot of teachers resign beoanse 
of this transfer? And he told ns that he had *** about 
135 resignations at aid-year. He stated that this was about 
what they usually experienced in previous years when there 
had been no teacher transfers. And the evident effect was 
that few additional people resigned because of transfer.

And, it appears that this would be even aueh 
loss likely to happen now because for the first tine in 
many, nany years, we have a surplus of teachers. They can't 
just go out and get another job.
Q You say there ia a surplus?
A There is a surplus of teachers. Zt*s just not
that easy to go out and find a job any more which does 
slow down some people.
0 All right. Ia there any problem with regard to
f a c u l t y  desegregation in  reference to demotions and discharge 
of black teachers?
A Yes. There can be difficulties that ha«s to
be guarded against. One of the difficulties'is if you have 
a teacher of either race who might be, let's say, chairman 
of —  chairman of the department in a given high school 
and he is transferred to another high school whars there 
already is a chairman, then somebody would be demoted.

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Stolee - Direct 1614
Nov, in Dade County they handled that by pairing 

off department chairman. When department chairman mould be 
transferred, there van going to be another one and they'd 
change on an equal level.
Q Does the desegregation experience across the
country shov that where there is no provision in the plan 
that any pattern of diserialisation develops?
A Oh, yes, very definitely and because of that —
Q (Interposing) What is that?
A Well —
0 Pardon am.
A We find that black teachers are more likely to
be demoted. Black teachers —  black administrators are more 
likely to be demoted or dismissed, more likely to be passed 
over than are white teachers or adari.nlstrators.

Now, Mr. Williams, I can't say this as to 
Chattanooga. I have no information whatsoever about Chattanoog^ 
But, this is the experience generally in many places, and 
therefore I would recommend strongly that any plan of teacher 
transfer in Chattanooga give a guarantee to the teachers that 
they would not be adversely affected in any way other than 
if they consider adverse to have to change from one school 
to another.

But, I have looked over a number of procedures, ant 
statements, been familiar with the —  what I referred to as the

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Stolee - Direct

guidelines for so many years issued by the Offloe for Civil 
Rights. I have been familiar with the orders of several courts 
and from those I put together some statements that I think 
would be a good idea for the board to adopt.
Q Do you then have as a part of the plan a written
statement of recommendations regarding governing these setters
of —

A (Interposing) Yes, sir.
Q -- demotion and promotion with regard to teachers?

1615

A Yes, sir, I do.
Q Will you submit that, please?

THE COURT: Exhibit 135.
(Thereupon, the document referred to above 
was marked Exhibit 135 for identification, 
vithess Dr. Stolee, and received in 
evidence.)

® All right. This document is *TtBlai1 "Conditions
of Hiring, Procioting, Dismissing, Bon-Renewing ***** Demotion 
of Professional Staff," Exhibit 135.

will you explain this insofar as you feel that 
there are any explanation of the written material is required 
A Yes. I would not want to read the whole thing
unless the Court would like me to but it —  essentially paragrap 
one s a y s  that the ratio of blacks to white teachers in each 
shool and other staff in each school is approximately the s 
a s  the ratio to black and white staff *M*hexs in the school

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system as a whole and that the board shall direct that its
Stolee - Direct

employees would accept these new assignments as the condition
of continuing employment.

Secondly, that people who may have to be changed, 
hired, assigned, promoted, paid, demoted, dismissed, shall be 
done so without regard to race, color or national origin.

That*a the third paragraph, if there is to be 
reduction in any class of employees, class of eaqployees beir j 
principals, assistant principals, counselors, classroom teache 
elementary classroom teachers and so on and so forth, that 
the people who would be dismissed from those positions or 
demoted or non-reaewed would be the person with the least 
seniority. And then if it bscomes necessary to dismiss 
somaone on the basis of least seniority and later a vacancy 
occurs in that same class, that that person should then be 
given the opportunity to come back to work.

The fourth part says that any member of one of 
these classes who has to be moved out of the school system 
for any other reason besides reduction of force, the vacancy 
should be filled with a person or persons of the same race 
as the person leaving.

The fifth one is that there should be reasonable 
1100'discriminatory and reviewable standards or procedures 
to fill vacancies. And, that these standards snould be in 
writincr. We are talking about job descriptions. They should

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Stole* - Direct 1617
be in writing and that the weight given to each of the 
standards should be publicly stated that the school 
system keep records on it.

Sixth paragraph is if the ratio or percentage 
of black teachers in the entire school aystae this year is 
less than at some year in the past and I chose 1965-66 —
I suppose I could have picked any other years since the 
school began —
Q (Interposing) Mali, *65-66 was the year just
preceding the total implementation of the past plan of the 
board, was it not?
A Yes.
Q All right.
A Yes, but anyhow that is the percentage of black
teachers presently is less than it was at that ties, there 
should be an active campaign to recruit black educators.

And paragraph seven says that the school board 
shall develop, require reasonable non-discrieinatory and 
reviewable standards in the procedures to be used in 
dismissal, non-renewal, demotion, promotion or employment of 
anybody else; and that each person being considered for one 
of these shall be evaluated and the resuite of the evaluation 
kept.

And then eight and nine just define what I am 
talking about when I talk about desK>tion or promotion.

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Q All right, fine. Too have any further
regarding that?
A No, sir.
Q Do you have any further coneat regarding the
faculty phase of the plan at this tine?
A Just one other cement, Mr. williams. I firmly
believe that a school system should desegregate its student
body and faculty at the same time.
Q Why?
A Well, every objection that you hear to —  okay ,

no«r, I have heard, for example, in this court that white 
children would not want to go or words to effect that 
children of one raoe would not went to gc to another school 
in which the faculty was a majority of the other race;
I have heard words to the effect that faculty of one race 
would not be very anxious to go to the school in which the 
children were majority of the other race.

And, there is no getting around the fact that when 
a school system desegregates, there's a certain amount of 
rocking the boat, let's say. There is a certain adjustment 
period that must take place. But, I, for the life of me, 
can't see the advantage to doing it twice. I think it ought 
to be done once. It ought to be done caaqpletely. It ought 
to be done and over with; that the best educational thing for 
this school system would be to desegregate its faculties.

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desegregate its students, get the job done and get back to 
what the schools' real problem is, that of educating children. 
Q All right. Incidentally, while we are on that,
does the —  does the integration of the schools actually have 
a part to play in the furnishing of that education to the 
children?
A Yes. All of the data that I have seen indicates
it quite clearly. I wish that Volune 2 of Racial Isolation 
had been introduced into evidence because I believe that 
there is information there that very clearly points out that 
both black children and white children benefit free school 
desegregation.

MR. WILLIAMS: Well, if Your Honor please, I do
not have a copy of Voluas 2 with me. I should like to have 
permission to introduce that subsequently.

THE COURT: All right.
Q All right. Now, what is your raconsaenrlstlon?
What are your recommendations with regard to site selection 
and school expansion?
A Well, one of the things I would definitely
not do is build any mors schools in housing projects that 
are racially identifiable.
Q Of course, the school system is not —  does not
build the housing projects.
A No, no, but —

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Q You said in housing projects.
A I would not build any more schools in housing
projects that are racially identifiable. Neither would I —
I don't believe I would build schools way out on the periphery 
of the city. I suspect that in order to —  to do the best job 
of desegregating our schools in terms of building would be to 
try to plan new buildings so that they are, well, sort of 
like the Green Belt idea.
Q What is the Green Belt?
A A strip of land around the middle of the city.
See, until the time that something is done concerning residenti 
segregation of the races, the schools will have to be built 
in such a way that children of both races can get to them.
And if those schools were built in a circlo, certainly sort 
of patterned between the inter-city and the suburbs so children 
from both sides can get to them would be much better than 
building them way out on the edge of town or in the middlis 
or on the edge of a uniracial housing project.
Q All right. In your opinion, whattms the effect
of the action of the Chattanooga School Board in building 
the Piney Woods School down here in census tract 19 and then 
rebuilding Clifton Hills over here in census tract 25?
A Given the racial makeups of those two neighborhood
and given the elementary attendance soning thing, it would 
guarantee that those are both going to be racially identifiable

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«=hool.. on., th. Pinny wood bX.ok, and Clifton Bill., rtlto.
Q All right. Can the action* —  can school
authorities by thair action* in not only th* location but 
the adjustment of school capacitia* and other factor* related 
to school construction and expansion, affect integration or

segregation?
x Ye*. *t»er* i* no question about it.
Q All right, in your opinion, has the Chattanooga
School Board used those factors to a aff*ot integration or 
segregation in the school? Has the effect of their actions —
A (interposing) I oan’t say anything as to their

intent or what —
0  (interposing) I a* not asking you about intent.
A well, the effect, clearly the effect of some
of the new schools is to increase racial isolation.
Q All right, air. And, what has been the effect

of open enrollment in the high schools?
x well, it's easy to see by the enrollment data —
let me back up a minute, may I?
q Yes.
A Everyone I hav. heard in thi. oourt to thi. point
hns worked on th. ...unptlon th.t th«. 1 . « r o U ~ n t
in th. Motor high Mhooln. .nd I b.il«. I «o»ld ilk. to 
tostify that th«. i. not. hnd l.t m  M y «hy tl-x. i. not.

At th. bMtnning of ny dlrwt t..tlnnny thi.

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morning, I pointed out that these schools a n  racially
StolM - Direct

1622

identifiable by their faculties and by their administration. 
And, we have the Howard School which has a majority of black 
teachers and it has a black principal and Riverside School, 
that is a majority of black faculty and a black principal. 
And, those two schools are meant for black children just as 
sure as the sun rises in the morning.

Then you have Chattanooga High School, majority 
white faculty and white principal and Brainerd High School 
has a majority white faculty and a white principal.

And, those two schools are meant for white 
children just as clearly as the sun rises I n  the morning.

Now, given those facts, there may be choice 
but there is not free choice. It's very clearly indicated 
which school is for whom. And for that raseon, among others.
it hasn't worked and I hold very little hope that it would 
work in the future.
Q Are you saying that the designation, that the
continued designation of the schools by the school authorities 
has some effect on the freedom of choice?
A Tee. Well, what I am saying is that the —  by the
assignment of faculty and by the assignment of administration

to a school, that school can be clearly labeled as being for 
black children or white children and that's what'a been done

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Stolee - Direct 1623
Q All right. What in your opinion has bssn tbs
•ffact of the Chattanooga transfer provisions as contained 
in Exhibit 65? You have seen that, haven't you?
A i have not «een the exhibit. I have only heard
the testimony.
G All right.
A i would aay that from the testimony I have heard,
the Chattanooga transfer policies are extremely generous.
It made me —  I was thinking last night about this, and it 
made me think that if there must be so many reasons to get 
out of an attendance sons in the Chattanooga schools, the 
idea of a neighborhood school cannot be held too highly by 
the parents nor by the board, if you have to have so many 
reasons to get out.

I think it's an administrative monstrosity, all 
of these reasons for transfer. And, you have got to hire 
special people just to keep track of it. It's surpassed 
in its administrative difficulty only by the freedom of 
choice sort of plan.
G Is it —  what affect does it have with regard to
tha promotion or the hindrance of effective desegregation?
A I don't believa it could do anything except
hinder the thing. I think there ought to be really only
two reasons for transfer in a school system.
Q All right. Will you state those?

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Stole® - Direct 1624
A One is that a person should be permitted to
transfer fro* a school in which his race is the«maj<vrity to 
a school in which his race is in the minority provided that 
the school he is transferring to serves the proper educational 
level and provided that his parent or guardian has applied 
for it; and the second would be that a child would be permitted 
to transfer from one school to another to —  excuse me —  

natch a corresponding change of address of his parent or 
guardian provided that the school that he transfers to is the 
one serving the area into which he moves. Other that, I
couldn't see other transfer policies.
0 All right. Now, with regard to the implementation
of your plans —  of the plan that you have suggested, what 
about time with regard to that, take a great deal of time to 
implement?
A No. This plan could be implemented and in
operation by the opening of the 1971-72 school year. It means 
that the school administration would have to make plans now 
but, Mr. Williams, if you could have seen a school system 
with faculty of 1 0 , 0 0 0  teachers in three weeks develop the 
plan, implement it, transfer the teachers and reopen its 
doors in the middle of the school year, it can be done. There 
is school systems all over the United States doing this now.
0 All right. Now, you have looked at the pupil
locater maps, I believe, which were prepared by the School 
Board too late to be utilised in the actual preparation of the

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plena, have you not?
A i have looked at many of them, not all of them.
Q All right. Those pupil locator maps boon of
any assistance In evaluating and Implementing the plan which 
you have suggested?
A To the degree that they are accurate, yes, they
would. See, it's been given in earlier testimony here that, 
testimony with which I agree, that any time we some, you knor, 
have attendance zones, fro* year to year there are probably 
going to have to be some changes in these sones because where 
people live changes a little bit, and I notice, for example, 
on their Exhibit 13, if that's a confined exhibit, if it 
includes the sones from the years prior —
Q (Interposing) It does.
A That there are areas where one block or one —
the width of the distance from one street to the next has been 
taken from one zone and put in another. And, this is done to 
relate the numbers of children to the capacities of the 
schools. Those things would have to be done and these spot 
maps or pupil locator maps are invaluable.

They're also Invaluable insofar as the location 
of black and white children in getting a racial mixture in the 
schools; but I think we have to say at the seme time, Mr. 
Williams, they are notoriously inaccurate in general.
Q All right. Does there need to be any continuing

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Stolee - Direct 1626
supervision over school desegregation to maintain —  to maintain 
the results achieve?
A Oh, yes. For example, I was talking a while ago
about a school system that balanced its faculty on February 
1st of 1970. Now, -school year started in September of 1970.
And, there were those principals who attempted to get back 
to the good old days with quotation marks around the good old 
Hays where each person who may have departed from that school, 
been replaced by somebody else and there were attempts made to 
change and it took an order from the superintendent that he 
would not recommend to the board the appointment of any teacher 
to a school system if that appointsmnt tended to throw the 
facial makeup of that faculty out of balance.

The same thing is. true with children. People do 
move. There are housing projects. There are new developments 
srcur-d. And each time that i re pens, then you are going to 
have children's locations change, and there's going to have 
to be changes in the sones and the school is going to have 
to do that.
0 Are those administrative measures inconsistent
with similar administrative measures taken with regard to things 
that are unrelated to integration?
A No, it's just one more dimension, part of everyday
life, I would say.
Q All right. Two things I want to ask you about.

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finally. Doe* the construction of a school in a davaloping 
neighborhood that is developing racially or otherwise have 
any relation to the acceleration of the growth of that 
community or to the continued growth of that community?
A i an trying to understand your question.
0 In other words, if you have got a cosssunity out
here that white people are moving into and you build a new 
school out there and built it overcapacity to serve »h~ss 
w^ite people who are living there, what happens?
A Oh, yeah, the schools built in those kinds of
com; unities tends to continue their growth of that cosssunity. 
And, generally, this is —  this is the pattern of city 
development that we have seen.

We see the black people generally living closer 
to the center of town. I think that’s rather obvious on 
Exhibit 89 here. And that's also where the oldest schools 
were. And, then we find white people out on the edge of 
town. That's generally where the new schools are built.

And —  and so you find —  well, in *y community, 
all the air-conditioned schools are out serving the white, not 
because whites need air conditioning more than anybody else 
but because they are out in the suburbs and they are new. 
Blacks are attending schools in the inner part of town that 
are older, they are not air-conditioned, or they are not 
carpeted. They are not as good educational facilities. In

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many respects that can't be said, in some respects, can't be 
said to be true in Chattanooga but it is a general pattern, 
you see, around the country that people tend to follow the 
schools. They don't want to live across the street from a 
school but they'd like to live a block away.
0 Residential concentrations that develop are
racial, then this school may thereby contribute to the
development of that racial segregation, may it not?
A Yes.
Q You were, I believe you were here and you heard
the board member, Mrs. hooper, testify the other day that the 
reason the school board retained its old sones substantially 
was that it wanted to allow the children to continue to go to 
school in their neighborhoods. State what if any comments 
you may have in respect to that in regard to the integration 
of schools.
A 1 see several things* One is that the neighborhoodl
school seems to have taken on some kind of a halo or something 
since the advent of desegregation that it did not have prior 
to the advent of desegregation. It's becoming of less 
importance. One of the things that's making the neighborhood 
school of less importance is that more and more children are 
living in homes in which both parents work or there's one 
parent in the home and that parent is working.

And, it doesn't make any difference if the child

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is close to that empty house or sostwhcra away fros that 
empty house. Ue are finding that more and sore children 
are being transported to school regardless and it really 
doesn't make any difference, then, if they are transported 
for ten minutes or fifteen minutes. And then, even given 
this school board's attempt to M i n  tain what they believe 
is the neighborhood school, even they have found it necessary 
to have better than half the alphabet of reasons why you 
can get out of the neighborhood school.

The neighborhood school has nothing to do with 
the education of a child. Me have not been able to find 
any difference in how well children learn if they are half 
a block or half a mile away from horns. It's really something 
that it's a throwback to ms, as a father, you know, and I 
think this is my school because it's sitting here a block 
away from my house. This brings to mind another point.

where I live in Coral Gables, Florida, my house 
is approximately four blocks frost the George Washington 
Carver Elementary School and about three miles from the 
Sunset Elementary School. Well, our neighborhood school is 
the Sunset Elementary School. It all depends, see, now, 
this neighborhood I am in is white. George Washington 
Carver is a biac* »chool. Sunset Elementary School is s 
white school, so what neighborhood is depends on your 
perception. My neighborhood perceives Sunset, three miles

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Stole© - Direct 1630
away, that's their neighborhood school. And here sits
Carver four blocks away and that's not their neighborhood 
school. It all depends on your perceptions.
Q State whether or not you would conclude, based
on that illustration, that the word "neighborhood", that the 
so-called "neighborhood school" concept has none relationship 
to race?

A Oh, yeah. In schools that —— i»» school systsnr
that —  particularly school systems that were formerly de jur« 
desegregated, it has almost a complete —
Q (Interposing) Schools were built in racial
neighborhoods?
A Yes.
Q Are there —  are there advantages to bus
transportation?
A Yes. According to the American Safety Council,
riding on a school bus is the safest way barring none for a 
child to get to school —  walking, riding a bicycle, riding 
with his parents —  all of these are less safe than school 
bus transportation.

Q Do you hava any —  is there any phase of the
plan you came here to present that I have overlooked?
A Not that I can think of, sir.
Q All right, cross examine him.

TUB COURT: Let's take a 10-minute recess.

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Stole* - Cross 1631
(Thereupon, a recess was taken.)

CROSS KXAMIMATIOH
BY MR. WITT:
Q Dr. Stolee, in designing plans, I assume that
you had certain well-defined objectives in mind?
A Yes, sir.
Q Would you mind en<usersting those objectives.
please?
A Main objective was to c o m a up with a plan whereby
no school in the Chattanooga City System would be racially 
identifiable.
0 All right. How do you —  do yow have any other
guidelines?
A I had the guideline of the total racial makeup
of the student body of the City Schools to use as a starting 
point. And then to try to establish a reasonable distance 
of deviation from that starting point.
0 All right. Any other criteria that are reflected
in the plan which you have designed?
A well, one of the things was, too, as much as
possible within the concept or constraint of eliminating 
racially identifiable schools, to have the attendance sones 
be as logical, as contiguous as they might possibly be.
0 And I believe that in essence your plan in
effect accepts the sones presently drawn with regard to

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•l«s*nt*ry schools?
A It's based on the nones without judgment as to
the attendance nones' goodness or badness. It wen based on 
the nones because that's the basis of the data on which I had 
to work.
Q Well, does this mean that the nones were
considered to you to be acceptable for that purpose?
A Well, it’s beside the point. Mow, it's all I
had. I didn't consider them one way or the other except I Hfid 
them.
Q That's all, that's just what I wanted to clarify.

Now, were there any other objectives that you 
are attempting to accomplish?
A Well, I don't understand exactly what you mean
by that, sir.
0 Well, when one starts to design a plan of
desegregation for a city, one must have soam objectives in
mind.
A Okay. Now, if you mean the overall objective,
sir, I have already stated which was to try —
0 (Interposing) I don't —  excuse me, go ahead.
A You know what I am going to say, to eliminate
any racial identifiable schools and then the rest of the things
1 think you are after —  the objectives I would place on 
myself in attempting to do that and among these objectives

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o n m  I already mentioned, somewhat logical pattern; second 
would be to do it with a view as to the capacities of the 
school buildings; thirdly, with some view as to the 
transportation, major arteries of the coanunity, and also 
to essentially try to keep each school operating at 
approximately the load level that it's operating at now.
If ~

Q (Interposing) I beg your pardon.
A in other words, if a school presently has 400
children, try to keep it at approximately 500 children.
G A H  right. Are there any other objectives
that you had in mind as you constructed this plan?
A There nay have been others but I oas't think of
off the top of my head —  nothing nefarious.
0  I am just merely trying to understand what your
task was and what —
A (Interposing) I understand, Mr. Witt. I am
not being critical at all. It's just that I find it very 
difficult to, each time I come to a decision point, to give 
you the particular rationale or e particular decision. I 
believe if you ask me questions about a specific type 
decision, I'd be able to give you a rationale for that.
It‘s very difficult for me, though, to take a general, you 
know, a general pattern and give you an overall rational#.

I think you will notice from the overlay that I

Stolee - Cross 1633

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presented that I attempted to pair elsnentary <n
contiguous zones vherssrer possible.
Q If you will, or. Stolee, I just went to be
certain that you have stated to the Court and to ae what 
your objectives were and then I will nove on to —
A (Interposing) If I nay, I believe you nay nove
°n# sir. I think the ones I can rsmantisi I told you.
® All right. Now, in this process, you did aake
certain value judgments, did you not?
A Yes, yes.

0 Would you mind Identifying these, please?
A **•**» those would be based on the as constraints
1 Masusd or that I mentioned. The first value judgment would 
be that to eliminate any racial Identifiable schools, that's 
very definitely a value judgment.

Secondly, to try to use each school for 
approximately the grade level that is presently being used.
I am having difficulty differentiating between the standards 
you are asking me about before and the value judgments, 
because essentially I believe they are the thing.
I think I'd have to say the same in response.
® r*9ht. I believe you indicated that you had
some special information or special responsibility in the

area of the legal aspects of school administration, did you not 
A I probably mentioned that, not in my testimony but

Stole® - Cross 1634

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informally I probably mentioned to sesmone that my area of 
teaching in administration is school law; although Z 
no pretense at being learned in the law as an attorney.
I an an educator who is interested in the law.
Q 1  am referring, I think, particularly to your
participation in a pamphlet entitled, "Race Relations in the 
Schools in the United States, Decisions Leading to and
Following Brown."

A Tes, that would be in connection with m y membershi
with the National Organization of Legal Problase With Education. 
Q And, you are generally familiar with the
principal decisions of the various courts in the Brown one 
and two and since that time?

A Tea, sir, in general, in general.
Q I realise that you are not a lawyer but you have
read these decisions?
A i have read most of the decisions of the appellate
courts and the district courts in my locale.
Q I see. Do you —  you have used the term and I
think repeatedly in your testimony of racial balance. Do you 
think that term deserves some special definition by you or 
not?

A Well, the racial balance, air, as you use it?
0 This is what I am interested in.
A Would be that the enrollment in each school would

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St01®* ' Cro”  1436
approximate vi thin rMsonabl* conditions that of tho school
aystasi in to to. I would not want it to mean that if a school
system is 49.8 parcant one race that each and every school
should be exactly 49.8 percent; but in reasonable proxiestion
to that figure. I take the basic figure as a starting point.
Q All right. Then racial balance is primarily a
mathematical concept?

A No' ■athematical concepts are extractions in
that mathematics themselves don’t mean anything except as a 
reference to something else; and in this case, the best 
education of children can occur when these children are in 
schools which reflects truly their oomsnanity.

And, mathematics if just a shorthand method 
of expressing how you might say it. I am not, you might cell, 
the statistics happy sort of person that is going to base 
everything on a quantum theory. I just find it a rather 
helpful shorthand device to use.
Q Have you read the decision of the Supreme Court
in Swan of April the 20th this year?
A I have not reed the complete decision, sir. My
copy isn’t here yet. All I have are the several commentaries 
that I have seen.

Q Then, your plan does not reflect in any way
your reaction to that decision or does it?
A The plan that I presented here to the best of my

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Sfeolee - Cross 1637
knowledge and to the beat of ay understandlag of the Sean 
decision without actually hawing read the decision would not 
in any way violate what I understand free ay reeding to be 
the Swan decision.
Q Your experience I believe hes been primarily
in school boards —  with school boards that are covered by the 
Fourth and Fifth Circuit, is this not correct, Alabama, fTaorijl
A Yes.
Q Mississippi?
A Instances in Federal Court have been within the
Fourth and Sixth Circuits.
Q Have you had any experience with the school board
in the Sixth Circuit?
A I an not aware of the geographical area covered
by the Sixth Circuit.
Q Are you with regard to the Fourth and Fifth?
A The Fifth Circuit I an quite well familiar, the
Fourth Circuit I have a general Idea.
Q In designing these plans, what consideration —
did you give consideration to the needs of the individual?
A I am not quite certain what you mean there, sir.
Individual what? Student, teacher?
Q Yea.
A Individual student?
0 Yes.

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1638Stole* - Cross
A y*s . in accordance with my belief that the
Individual student is going to, in general, get a better 
education in a desegregated setting.
Q All right. In your —  jump ahead a little bit,
but in your description of school sones for the senior highs, 
did you give any consideration to the possibility or the 
fact that those zones when operable and if adopted as you 
proposed would change the decisions of both white students 
and black students with reference to the high school that 
they are now attending and have chosen to attend, did you 
consider this?
A Yes. You mean that sows children be required
to go to a high school other than the one they had previously 
attended or wanted?
Q Yes.
A i did consider that, sir, yes.
Q And that these children could be black and they
are black and they are white, both races?
A oh, yes, both races would be effected.
Q What consideration did you give to then?
A Well, I gave the consideration of trying to get
each child into a school in which they would be essentially
fKa same position as any other senior high school child in 
Chattanooga, into the school that, in most cases, would be 
closest to his hone. There is one place this would not be

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Stolee - Cross 1639
true, the Orchard Knob area is closer to Riverside it is
to Brainerd.

But, also, talcing the needs of the school system 
which I see as the constitutional need at this point being 
decided by this Court, but if this Court were to render a 
decision in accordance with ny views, then this is the —  it 
would be necessary for these children to do it in the sane way 
it was necessary several years ago for children to wove free 
Howard to Riverside whether or not they so desired. It's 
something that would have to be done.
Q But, doesn't the school system exist for the
individual?
A The school system exists for the benefit of
individuals taken as a group. Too would not ask the 
school system, for example, for the benefit of one individual 
to do something that would deny the best education to ten 
thousand other individuals. But, you would consider the 
interest of that one individual in the context of all of the 
individuals considered as a group. And, I believe that's 
what the school system has to do.
Q Are you saying that individuals are only important
as a member of a group?
A No, sir; no, sir. But, on the other hand, we
have 25,000, approximately 25,000 individual children attending 
this school system. This school system, the ahear magnitude of

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it is not going to be able to make every decision for the 
k®***fit of one particular individual. It's going to have

1640

to sake those decisions for the benefit of the greatest 
of individuals, included in that 25,000 and to do it In a 
humane way. This is in my mind not at all i »  rsi1 from what 
ve have been presenting here.

0 All right. Let's be specific. SLnoe you didn't
hear all of the testimony, the testimony would indicate that _
well. Exhibit —  now. Exhibit 24, this is 25. I don't believe
that you are familiar with this nap, are you?
A 1  looked at it during the reoess one day.
Q Well, the blue pens indicate black students
attending City High School and the yellow indicate white 
students.

In your design of thin plan, did you take into 
consideration —  design of the plan for the high schools, did 
you take into consideration to any degree *•>>♦ fact that if 
your plan were implemented, that the black students in ths 
Orchard Knob area that have now chosen to attend City High 
School would be required to attend —
A (Interposing) Brainerd.
0 Brainerd. Did you take that into consideration?
A I thought about it and rejected it as a primary
consideration.

Q well, did you take into consideration that, let's

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say, in designing the sone for Howard that the black students 
that now live in the Trotter area and have decided to go to 
City High School coaid no longer go to City High School?
A 1  took it into consideration and rejected it.
® All right, sir. Excluding the concept of
desegregation and integration, is there any educational 
rationale for the clustering concept?
A Are you referring, now, to the elesentary?
Q Yes.

A Yes. In that by clustering, I expect you are
referring to the Orchard Knob-Bamlock-Highland Park-Oak Grove 
and Ridgedale.

Q Actually, Doctor, I am speaking of it in the
theoretical sense.

A oh, okay. I would take it down the pragmatic,
then, talking about Orchard Knob KleMntary School whether it 
would be a larger concentration of fifth and sixth graders 
and more of the particular services that would be directed
especially to children of that age would be able to _
concentrated in that school —  there are —  thereby resulting 
in some educational benefits. The same would be true of the 
one grade school that I proposed for PineviXle, sixth grade. 
You would be able to provide a greater number of educational 
resources, particularly at the sixth grade level at that 
school than you would be presently at that school, where I

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believe there's one roosi of sixth grade children.
0 Do you know of any school system that has had
that kind of a school structure absent the issue of desegregntijc 
A I an thinking, air, of Carlisle, Pennsylvania,
in which the Carlisle Public Schools have gone I believe 
it's to a one to four structure in nost elementary schools; 
and fifth and sixth structure and then a junior high school 
and senior high school in which they have actually gone to 
this, grades five and six.
Q A n y other examples?
A Y**» *ir• I mentioned in uy earliest part of
my direct testimony that I spent one year at the University of 
Massachusetts during which tine I lived in Anhurst, MassachusetsI
They had seven or eight elementary schools. I had three 
children in elementary schools at the tine, end each one 
attended a different school.

And the greatest number of grades that were in 
any one of these three attended by my children was two.
Q Then, desegregation was not the sole basis for
your —  this part of your plan?
A No. See, sir, I an an educator and I also
believe that —  that desegregate the schools is what I 
understand our country to be saying to us and I want to do 
this in the best way educationally speaking. And, obviously 
when I think about these, thinking about educational purposes.

Stole* - Cross 1642

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Q I am sore you do. Doctor. I am just trying to
understand your reasoning.
A Thank you.
Q Now, direct your attention, if you will, to the
first part of your desegregation plan and that has to do with 
your elementary schools. My questions will be primarily for 
the purpose of attempting to clarify some points that I do 
not understand.

In the process, did you —  how did you arrive 
at the selection of schools to pair or cluster, or how did

iyou arrive at this?
A it*s a sort of a process of elimination, Mr. Mitt.
As a Blatter of fact, the first one I started with was Group A, 
St. Elmo and Trotter, to try to get two schools that are 
reasonably close together and —  and then la every case 
start out that way.

And then, as you get to the places where you are 
running out the schools that are reasonably close together, 
then you try to take schools that have transportation routes 
between then.
Q But, the primary, as 1 understand it, the primary
concept is to reach some mathematical balance in the area of 
45, 55, in that percentage?
A No, the actual figures we used, I believe I said
were 70-30. vie tried —  I tried to get every school into that

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A

Did you 
I believe I did, sir.
Do you have any schools In Hue 70-30 range? 
I nean the 70-30 la what we wanted. Don't

believe we have any out of It.

® * 8 ***** I now, aa I understand your plan,
this means that Trotter,which la located In tola general area
or near Exhibit 89, I guess that's the —  where la t o e_
Exhibit 129.

A  Mr. Witt, excuse me, sir. Could I ask to have
this one removed a bit so I can see?
G bet's take this one down.
A There, that would be fine. Thank you.
Q Mow, st. Elmo school is In this area. Trotter
School is in this area?
A Yes.

Q The plan, then, would mean that the black children
now assigned to Trotter In the first three grades would be 
transported to St. Elmo, Is that correct?

A Jt ■•*»• that they would be assigned to St. Elmo.
Now, the point there you are pointing at is the area —  that 
you were pointing at is area, sir, by Bell and Donaldson. 
Trotter is the next lower, yes.
Q Right in here?

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A There is a road around the south end of the hill.
Q That’s right.
A There —
Q (Interposing) Hell —
A I would expect that somebody would have to
•Mwlne that ros<l to see if it would be safely walked by 
children or if transportation to be —  it’s obvious they can't 
walk over the road for safety's sake.
Q I was assuming, I guess I was incorrect, that
busing was a part of this plan. Perhaps I _
A Positive in some places, Mr. Hitt, there'd have
to be transportation.
Q But, not in every instance?
A Mot in every instance.
Q Would it also mean that the children now zoned
to the St. Elao School in the fourth, fifth and sixth grades
would by sons means be transported or walked to the Trotter 
School, is this correct?
A Tes, sir.
0 Then your first A, group A, B, C , D —  no. Just
A and B are both —  they are contiguous to each other, are
they not?
A Yes, sir.
Q And Clifton Bills, I believe, and Bell would
be contiguous to each other?

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A That is correct.
Q Did you plan for there to be transportation froai
Bell to Clifton Bills?

A i did not believe that transportation would be
necessary from ey limited view. I notice that I did determine 
that transportation would probably be needed for St. Elmo 
and Trotter. I had serious doubts that it would be required 
for Group B, Cedar Hill and Piney Wood, or Group C, Clifton 
Hills and Bell.

Q Then, do you have any transportation analysis
of this plan?
A I do not —  yes.
0 Has that been introduced?
A No, it has not, sir.
Q Would you care to tell us what it is?
A Yes or —

0  (Interposing) I just assume that transportation
is a part.

A I tried to figure out, sir, the approximate number
of children that I thought might need transportation 
this plan. And, I do —  do have some information I worked up 
for myself. I don't know in what form you'd like for me to giv< 
it to you, sir.

Q Well, do you have any indications or estimates
with regard to cost or anything like that?

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Stole* - Croce 1647
A Mo. I estimated, let m  get into ay figures
here, I estimated, sir, that there mould be in the neighborhood 
the total elementary plan —

MR. WILLIAMS: You have that in writing? why
don't you introduce that?

MR. WITT: All right.
MR. WILLIAMS: As the next exhibit.
MR. WITT: I don't know what it is.
There is two pages of this.
Oh, excuse me.
MR. WILLIAMS: Would you introduce c*»d give the

Court the original?

MR. WITT: This will be Exhibit 136, I believe.
THE COORT: Exhibit 136.

(Thereupon, the document referred to above 
was marked Exhibit 136 for identification 
witness Dr. Stolee, and received in evidei

A
Q

Q I think it would be faster. Doctor, if you would
just explain what this is?

A what it is, sir, it's my estimate of the number
of children by race indicated B or W, by schools, who would
need transportation to school under this plan. It takes into
account in no way any transportation that might be going oe 
at the .present time in the school system, and it has totals 
at the end. And, page two —

Q (Interposing) May I ask you, you marts a statement

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with regard to this, but I can't ramaafeer exactly what it was. 
with what consideration did you give to available public 
transportation?
A i had no information concerning public trans­
portation, sir.
Q All right. How, let's look at St. Elmo and
Trotter there. I believe this indicates that you would 
expect transportation for the first three grades from Trotter 
to St. Elmo and from the grades four, five and six from St. 
Elmo to Trotter, is that correct?
A Yes, sir. Essentially that's it.
Q All right. How, this would indicate, does it not,
that your previous memory with regard to Cedar Bills and Piney 
Wood is that no transportation would be necessary there?
A Yes.
0 Are you at all familiar with that area?
A i drove in that area, sir, yes.
0 Do you have any idea how f a r  it is from Piney
Wood to Cedar Hills?
A Oh, I drove between the two of them, along —
what was the name of that road —  Hamill? No, not Hamill.
1 can't remember the name of the street. But, I drove 
between the two of them and, I'd say it's —  I can't give you 
an estimate except that it's —
Q (interposing) You recall any sidewalks in that

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“o* bet'"»an Pin^  * » d  and Clifton Hills, no, sir,
I do not.

0  I believe we are down to your group —  to your
D classification of your Group D. This indicates that, if I 
undaratand it correctly, that tha first three grades from 
East Laka Elamantary would ba tranaportad to Donaldson and 
tha gradas four, five and six from Donaldson would ba transfarr 
~  tranaportad to East Laka, is that corract?
A Yes, sir.

0 Than, ms nova down to Pinavilla, Alton Park,
and Henry, and again this indicates that transportation would 
be required, is that correct?
A That ' 8 corract.

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Q First three gradas at Alton Park would ba
transported to Jamas A. Henry School and the fourth and fifth 
grades at Jamas A. Henry would ba transported?
A Ho, sir, it indicates that the first three grades
of Pinavilla and Henry would ba transported to Normal Park.
The fourth and fifth gradas from Pinavilla and Normal Park 
would ba transported to Henry and tha sixth grade from Henry, 
Normal Park would ba transported to Pinavilla.
Q Where are you pupil statistics for —
A (Interposing) i am looking hare, sir. In one
hand I am looking at Exhibit 136 and another hn«w» i „  looking

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1650Stoles - Cross 
st Exhibit 126.

Q Does it take both to understand it, I guess?
A Mali, 126 is the one that explains the masher of
children by grade and school.

Q All right. Where did the —  what I an trying to
figure out, where did the —  the only grades at Pineville 
that you will—  where will you send the sixth grade, at 
Pineville?
A They would be at Pineville.
Q All right. Where would you —  where are the other
grades? Where are they indicated on this?
A Are you looking at Exhibit 126, sir?
Q res.

A They would be at the —  at the schools that are
indicated with nunbers of children. For exanple, the first
three grades would be at normal perk and grades four and five 
would be at Henry.

THE COURT I Third colvnm.
G All right. What is the transportation involved
in that?

A Exhibit 136 shows ny estimate there —  they are
the number of children estimate would be transported.
0 All right. Then, transportation would also be
required in F?
A Yes, sir.

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0 What grads■ —  third and fourth gradss at
Ri Vermont would bs transported, is that correct?
A Third, fourth grades at RiVermont mould stay
home. And, the other four grades, grades one through five 
and six would be transported.
Q All right. Then, grades three and four from
Carpenter would be transported to RiVermont?
A Yes.
Q And grades three and four at Bast Fifth Street
would be transported to RiVermont, is this correct?
A Yes.
Q And the first two grades at RiVermont would be
transported where. Carpenter?
A To Carpenter.
Q All right. The 139 pupils at RiVermont, is that
correct?
A There would be 139.
Q Needing transportation?
A Needing transportation from the RiVermont area.
Q All right. That combination of schools, was
there any particular reason for putting these three together 
that you recall?
A Yes, by the process of elimination, sir. If you
look at that area of the map, see that to start with. Brown 
left by itself because it does not fall presently within that

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30-70 range. So, I did not include Brown with —  I left it 
alone.
Q Yes.

A The next three were closer together were
Henry, Pineville and Normal Park. And, for Rivermont to pair
up with a black school, the closest one is the Carpenter-East 
Fifth Stree complex.

I see, all right. Now, what —  Avondale School 
is in your I group, and as I understand this, this it that 

first three grades stay there, is that correct?
A Yes, sir.

Q And then, the first three grades from East
Chattanooga cone to Avondale, is this right?
A Yes.

® All right. Now, moving to your 126 —  I beg
your pardon —  127, I call your attention to the statistical 
information with regard to Hardy which indicates that —
A (Interposing) Excuse me, sir. Do you ~itnn 128?
3 Well, maybe I got —  I am looking at the
Plaintiffs' desegregation, junior high schools. I have 1 2 0  —
A (interposing) I believe the overlay was 127.
This chart was 128.
Q excuse me. Now, drawing your attention to the 
statistics with regard to L*«dy. You may not have a
mistake but it appears to me you did.

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I'd llks to clarify it. You has* mooed tanioola, 

Bast Chattanooga, Garbar and Avoadala or portions of Avondale 
to Hardy. Than, you cons up with a racial composition of 
370 black and 278 white.

Now, Hardy today —  I bag your pardon —  as of 
the tenth day of school is 426 black and 190 whita. Now, 
will the addition of East Chattanooga Eleaantary be adequate 
to get you to the figures that you indicate here?
A Let me respond to that in several ways, if I may,
sir. The addition of East Chattanooga would —  no, I believe 
East Chattanooga is presently assigned to Hardy, is it not?
Q Yes.
A Yes, it is.
Q And, it produces a difference in that —
A (Interposing) Yes . My data are based on your
reports or your client's report to the Office of Education 
or Office of Civil Rights as of October 15th. I do not have 
data that might reflect any change that has occurred since 
that time.

Now, if there were a change, there are several 
courses of actions that sight take place. It's my understandirvj 
that from what you said the information concerning Hardy it's 
store out of balance now than it was at the beginning of the 
year.
Q No. I gave you the tenth day of school.

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A Oh, I s m .
Q And the figures for the HEW report were approxi­
mately the same, not exactly the same time.
A I don't believe I made an error, sir, but 1 am
human, I may have but I don't believe I did.
Q I just thought I'd point it out to you because
that racial balance has not been achieved at Hardy as of 
now. And, it would appear that you would have to add to that 
feeder school group another predominantly white elementary 
school, it would appear.
A There is another factor operating, sir, though,
that when you do have a racial imbalance, you might add one 
race and subtract the other, and I believe Avondale presently 
is assigned to Hardy, is it not?
Q Yes.
A And I have a part of the Avondale out which would
account for a portion of that. See, you might add whites 
or subtract blacks.
Q I can't —  the only place that you have added
whites would be from Amnicola and it only had 35.
A Yes, but I have subtracted blacks.
Q All right, okay. When you designed this plan, did
you give any consideration to the possibility of resegregation? 
A Yes, sir, I gave positive consideration to it
because I am firmly of the opinion, Mr. Witt, that the best

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way to guarantee what you refer to as resegregatlon is to 
fail to desegregate every single one of your schools. And, 
by desegregating every one of then, you thereby have done 
the best thing that any school system can do to prevent 
resegregation.
Q Mali, would you —  your sasm observation hold
true to another school system to which anybody in the City of 
Chattanooga can also go?
A You mean people leaving town?
0 Leaving and going to schools in the county.
A I have no idea concerning either the motives or
desires of people to leave town or availability of schools 
outside of town. My belief is that I would hope that 
Chattanooga would operate a desegregated school system as 
explained to them by the Court, considering the Chattanooga 
School System as one unit. I think it would be an educational 
mistake to base such a poor decision on this, as what people 
might or might not do. We have no knowledge of what people 
might or might not do.
0  I was merely asking you if you'd given any
consideration to that.
A To the extent I answered your question, sir,
yes, I thought about it, and I rejected it.
Q You did not realise that there was this
alternative available?

Stole* - Cross 1455

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A You misunderstand my anever, six. I said yea
to the extent that I answered your question and discussed 
that thing, to that extent I considered the possibility of 
this white flight you are discussing but I rejected it as 
one of the criteria to be used in developing a plan for 
the desegregation of the Chattanooga schools.
Q So —  but, you did give it consideration?
A Yes.
Q All right. Are you familiar with the history
of the resegregation of the Avondale School?
A Only to the extent that I read the enrollment
figures on the report which I believe you gave to Mr. williams.
Q Do you mean the enrollment figures that covered
the period since 1962-63?
A Yes, air.
Q All right. Mow, does —  do you attach any
significance or did you attach any significance in the design 
of this plan to whether or not the school, after this plan 
was operative, would be predominantly black or predominantly 
white?

A No, six, I did not. By predominantly black or
predominantly white you are referring to within the 70-30 
sone or range?
0 Yes.
A And I didn't particularly pay any attention to whei

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within that range the school might be.

1657

Q S o that the fact that Alton Park would be
predominantly black and Dalewood would be predominantly white, 
this just happened?
A Alton Park would be predominantly black with
55 percent black and Dalewood would be predominantly white 
with 56 percent whit*. I think those are very much within 
the allowable or desirable limits, which in this case I 
used the 70-30.
0  well, the fact that one race predominates was
not a part of the decision?
A No. I think variances that small aren't
going to make much difference to anybody.
Q Now, let's move over to your elementary teacher
transfer plan. 1  may have this wrong, too. I have 131 or 
do I have —  you didn't have a ̂ transparency on this?
A No, sir, that's correct. That's what I have at
least, Exhibit 131.
Q Now, in the makeup of this part of the plan —
or does it reflect any consideration of the racial composition 
of the schools —  student body, not faculty?
A Mo, it's based strictly upon faculty.
Q So, Amnicola could have, whether or not it has
a predominance of black or white students is irrelevant in 
the preparation of this material?

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A Msy I explain, six?
Q Yea.
A 1  have the foaling that whan wo have ^  a
school system oporating on tho basis of soaes, attondanco .ones, 
that tho enrollment of children in that school —  sas, tho 
School Board might in its opinion fool it's right in using 
attondanco soon*. And, tho assignment of childron or tho 
childron living in that attondanco sons is thee boyond tho 
control of tho school district. So, that's ono matter.

But, on tho other hand, on tho assignment of 
faculty, a strict non-racial assignment of faculty had been 
used in tho school systom, presumably by the luck of tho dram,

*ingle school would have had approximately the same 
proportion of teachers. Therefore, the —— I can see no reason 
for a racial imbalance of teachers other than specifically 
attempting to havo a majority block faculty la a school 
served mostly black children and a majority white faculty in a 
school serving mostly white children. And then, that then 
becomes tho cause of the next thing that happens, you go on 
and on and on. The thing you have to start with, you have 
to have is an essential and a comprehensive plan is this 
non-racial assignment of the faculty.
Q As I understand you, then, the concept that you
are reaching for here is racially identifiable «nd not b o o m 
other 43-57 or some other ratio, ft's to avoid the identification

Stolee - Cross

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racially identifiable because of the faculty?

A Yes, avoid the identifiability of an individual
ec:.„ol according to the race of the majority or makeup of the 
faculty.
Q All right. If a faculty is at the mmenit —
were predominantly black or you were making this transition, 
would you —  and you are thinking of the school as being 
racially identifiable and that the faculty is a part of 
this concept, would you want that faculty to be predoedLnantly 
white after the change, or would it stake any difference?
A I would want that faculty to be the sane as the
other faculty so that we could not aay that this school was 
intended for black or whita in conpariaon to that one.
All the schools to have about the sane proportions.
Q All right, then, you perhaps testified to that,
but what does this result —  what is the result of t M s 
proposal with regard to the elementary teachers when you get 
through with these transfers? Is every school approximately 
50-50?
A Every school is as close as you can reasonably
get to 42 percent black and 58 percent white faculty.
Q And where did the 42 and 58 cone from?
A well, it's —  I don't know, the school system
hired them.

Q Oh, that's what I am trying to get at, you are

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talking about the r i t o  of black teachers to white teachers 
that presently exists?

Yes, in the siaaantary schools, yes.
That's right.
I an sorry, sir, I should have explained that

Now, the -essence of this particular part of the 
plan means that 1 2 2  teachers would be changed, is that right' 
A Yes.
Q Sixty-one in and sixty-one out?
A Yes.

I Q H o w , in the high school situation —  beg your
pardon —  in your 132, your junior high school, this would 
mean 76 would be changed?

A Th*t is correct. This, Mr. Witt, M y  Isay, this
is all based on the assumption that the faculties in each 
school are the —  still the same today that they were at the 
time of your fall report to the Office for Civil Sights. That
would be a rather exceptional school system if they were the 
sane.

Q This does not take into consideration any
resignations, possible retirement that night have occurred 
since the tenth day of school or since the HKW form was filed? 
A That is correct, sir.
Q Now, your summary, as I understand it, indicates

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that if this plan was placsd into offset thara would ha _
did you have « sinasary for tha junior and elementary and 
senior highs together?
A Yes, sir. Exhibit 134.
Q 134? All right. What would be tha total nuaber
of teachers that would be in a new teaching position next year! 
A Based on this, it would be 266, sir, plus or
minus whatever other staff changes might —  might occur.
Some of this could be done through new hires, replacing people 
who resigned.

^ right. Now, earlier you made the comment
that there is a surplus of teachers all over the country.
would you draw any distinction there between black teachers 
and white teachers?

A Yea, I would, sir. The —  I cannot say whether
or not there is a shortage of black teachers, but let's say 
that the surplus of white teachers is greater than any surplus 
of black teachers, that is nation-wide. I do not speak as to 
the local situation.

0  Now, you had the figures with regard to the
number of students that would be required to be bused. You havi 
any cost estimates that would —  with regard to this?
A No, sir, 1 do not prepare cost estimates.
Q You haven't had any prepov .1 for you by anyone
else?

Stole® - Cross 1661

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A Ho, sir.
Q All right. In your preparation of Exhibit 130,
did you give any consideration to tuition students?
A No, sir, I did not.
Q All right, sir. You testified to sons extent
with reference to your experience with the mandatory transfer 
of teachers in Orange County, Florida. And, I believe you 
indicated that the first step, perhaps it was Dade County, 
but was to determine whether or not the teachers would be 
willing to be transferred, is that correct?
A Yes, I did not go through that process. I
mentioned that Dr. Kester testified to it this morning, 
was essentially correct; but what they did was to, first of 
all before they vent into the mandatory reassignment, gave 
teachers the option of volunteering in one of three ways.

Now, Dade County is divided into six 
aariuiNtrative sub-districts. The teachers could first of 
all volunteer for reassignment to any school. Secondly, they 
could volunteer for reassignment to any school within a 
given administrative sub-district rather within the county 
as a whole, and the third was they might volunteer for 
reassignment to one of three schools that they were at option 
to pick.

And, the school administrator, personnel tried 
to honor those requests inasmuch as possible. X think they had

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ons « M k  in which to submit thsss requests. At ^  tn«t of
that week, than, they began on the —  with the mandatory 
transfer of the least settlor teachers, beginning with the 
teachers having their second year of experience.
0 Do you consider it educationally sound to
ascertain under the circumstances whether or not a tearher 
is willing to be transferred?
A Well, I really don't believe educational soundness
enters into it. These teachers are teaching children and you 
also have to be very, very frank* ~Wr. Witt. Obviously the 
teachers who volunteer under those three options were the 
ones who were among the least senior and knew they'd probably 
get transferred anyhow and tried to get an element of choice 
while they could. And, I don't see how really soundness 
enters in.

Q Iwms just attempting to understand whether you
felt this was important or not.

Are you aware of the closing of certain schools 
in this system during the period that it was in a transition 
to a desegregated system?
A I an aware that some schools have been closed
in this system, but I am not aware as to the motivation or 
the status of or anything else. I just know I drove by 
several schools that had been closed. One was Park Placa.
That's all I can say.

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Q It was, on your direct examination —  for momm

reason it mas felt necessary to refer to circumstances in 
which black teachers had been demoted in the closings of 
schools and so forth. I wondered if you were familiar with 
the experience of this system?
A N o , sir, I am not.
Q You were not advised that in the closing of
these schools, no black teacher was either desK>ted or their 
services terminated?
A No, I have not been advised. As I remember in
ay direct testimony, I said that this is a pattern that is 
seen "often" in the country, but I knew of no particular 
instance in Chattanooga.
Q Then —  but, you didn't know anything about
Chattanooga on that point, is that right?
A That1s true.
Q Your Exhibit No. 135, do you know whether or not
any or all of these principles are now and have been in effect 
in the Chattanooga system for some years?
A No, sir, I do not. I would very much hope they ar
and if they are, I'd coamend the school system very much.
Q Your testimony really has, the introduction of
this had nothing to do with this school system?
A It would have to do with this school system to the
extent, Mr. Witt, if the school s^tem presently has this as ajrJs

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guideline or worda to these effect —  language to this effect
as a guideline, I would say. As I say, I would grr— ml the
school system for it. if the school system does not, then
I would definitely recommend that it either be adopted by the
school system or imposed on the school system by the Court.
^ i* it true that when this was introduced .
you didn't know whether it was applicable to this school
system or not?

A No, I knew it was applicabls generally to our
part of the country.

Q All right. In your direct, you, in speaking of
your plan for faculty desegregation or integration, you 
recommended that the student body and faculty be desegregated 
at the same time.

.And then, after that, you made some reference to 
rocking the boat and should not do it twice. feat do you mean 
by that?

A well, Mr. Witt, I think all of us would be
very naive if we could assume for one minute that any major 
change can occur in a school system without a period of 
readjustment. If we transfer teachers, there's going to

have to be a period of readjustment. If we transfer students 
there s going to haVe to be a period of reedjustment. If the 
City Schools open a new high school as they did with Riverside 
several years ago, there's going to have to be a period of

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readjustment.

If the City School Systam were to serge with the 
County School System, there would be a period of readjustment 
and what I am saying, sir, is that I would much rather see 
the City School System minimize the readjustments. I believe 
the adjustment is necessary but minimise the number and do 
the whole thing all at once and get it over with. I think 
one of the meat devastating things for the faculties and the 
students of the school system is not to know what's going to 
happen.

And, I think if it ware once determined, you know, 
this is going to happen and then it happens, I honestly believe 
that the administration, faculty and students of this school 
system would be so much better off just to get down to the 
business of education without worrying about where we are 
going to be next year or when are we going to be in court 
next or so on.
Q Doctor, areyou certain that anything is going to
happen?
A I don't understand, air?
Q Are you certain that any one thing is going to
happen tomorrow?
A That any one thing —  no, no, no. I don't pretend
to be clairvoyant, sir.
Q You also said something about or at least this is

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Stolen - Cross 1667
what I heard, let's get it over with and get back to what 
the schools are all about.
A I believe you heard correctly, sir.
Q All right. Then are you implying that the
educational opportunity has been interfered with to sons 
extent by the necessity to desegregate?
A Yes, sir. It would be interfered with to this
extent. Bow, I have been here in Chattanooga for the last 
eight or tea days or so. During that period of ties, this 
school system has had to devote an inordinate amount of its 
resources in terms of its top pmrrnnmnol, sohsbl board 
members, superintendent, assistant superintendent, principals, 
teachers —  I don't know who all, but people who have had to 
spend their time in this courtroom.

At the sane time, the school system is having 
to pay expenses of litigation. All of these resources, I 
think, would be much better put to use in educating the 
children of Chattanooga and the sooner that we get all this 
settled and start devoting —  devoting those resources back 
to where they Intended, the better off we will be. That's 
what I meant.
Q In using these resources, would you agree that
the impact upon the educational opportunity of the —  resulting 
from desegregation should be identified in advance to the 
extent that the resources are available to make this

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identification?

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A I don't know if I followed your whole question,
there, sir, because as I interpret the beginning of your 
question, I'd better ask you to rephrase it. I'e sorry.
Q All right. fm an educator and recognising that
this process is disruptive to sons extent, would you urge 
and approve and support an identification or an attempt to 
identify the negative factors that night result from 
desegregation in advance in order to minimise them?
A Oh, okay. I follow your question now, sir.
Let me respond in this way: There are negative factors
but there's no question about it, I told you that there are 
negative factors.

On the other hand, if we continue on the way 
vre have been doing, there are additional negative factors 
and we have been doing this for bears and years and years, 
we have got the data. Dr. Aster pointed out in his testimony 
that we have got the data.

We have been damaging educationally a significant 
proportion of our population for years and years and years 
and years and years.

Row, sir, if there is a significant educational 
il;LnesB that needs curing and the vaccination to the educations 
body might stake the arm a little bit sore for e week, but it 
promises to cure the whole thing, then I say let's get that

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vaccination dons and lst's got it dons quick.
Q Doctor, would you agrea that m b  of goodwill
could differ with regard to how we get from hers to there?
A very definitely, Mr. Witt. I think you —
and you are sen of goodwill —  and I believe we differ.
0 What do you —  how would you state your objective
in desegregation? How would you ̂ describe it in your own 
words? What ere you attempting to achieve? What do you 
think should be achieved?
A i think that every child should have an equal
opportunity to get the best education that we can give that 
child. And then there are a series of these things that go 
into that and one of that series is that that child have 
this opportunity in a nor-racially identifiable situation.
Q Doctor, how old is the cause of public education?
A Public education in the United states, sir?
Q Yes, sir.
A Commonwealth of Massachusetts passed the old
Satan Deluder Act I think in 1941.
Q Do you know how old public education is in
T en n essee?

A No, sir, I do not.
Q Has public education achieved Maturity?
A I can't accept your word, Mr. Witt. I mean,
your word maturity. If I could use the word potential —

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Q All right, potential.
A I would say no, public education has not. It's
kind of like the old nan that said, "We ain't where we ought 
to be and we ain't where we're going to be but thank the 
Good Lord we ain't what we used to be.*

MR. WITT: I have no further questions.
REDIRECT EXAMINATION

BY MR. WILLIAMS:

Q J u s t  one or two things that I overlooked. Dr.
Stoles. I forgot to ask you how long it took you to prepare 
this plan?
A May I refer to ay —
Q (Interposing) Yes.
A I began to work on May 2nd and —  tine since
May 2nd. Sonatinas during this tines I have been on *y 
regular employment. And then I have given sons thought at 
the sane tine to the problems of the schools in Savannah, 
Georgia, and West Memphis, Arkansas.
0 You have any estimate of the number of all
manhours ?

A I would say that in the preliminary looking at
things and so on, so forth, I'd say I put in a total of 

days, if you'd care to convert them to hours.
Q All right. How, is it of value in the implementat:
of a plan to have expert consultants?

Stole* - Cross 1670

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A 1  believe it Is. I believe one of the greatest
resources ve have available to us in this country aid one I 
know Chattanooga has used for in-service training, and I hope 
to continue to be would the Title IV Center at the University! 
of Tennessee. The Congress of the United States is currently 
considering the Emergency School Assistance Act of 1971, which 
would provide great amounts of money. I think this authorisation 
was five hundred Million dollars. Whether or not the 
a* propriation follows one never knows, but the authorisation 
is for half a billion dollars, and Chattanooga could definitely 
take part in any such program provided they are under —  I 
think the qualifications for that is that they have got to 
either have a final, terminal plan accepted by Dopnrtuaiit 
of Health, Education and welfare or be under a terminal 
court order.

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If «y Memory serves ms correctly, Chattanooga 
did not qualify under the Emergency School Assistance Progri 
in 1969, because there was not the terminal court order.
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help them from the Federal Government.
Q Would you and Dr. Kestar be available in the
event that your services wererequired to —
A

(Interposing) I would be available to the 
School Board if the School Board in and of itself desired 
this. But I have been —  I lave been once in my lifetime

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•■ployed by a school board at the order of the court, and it's 
a rather uncomfortable circumstance I would not care to 
repeat. But, should the School Board on its own volition,
I'd be very happy to work with the School Board. Can't 
speak for Dr. tester.
Q All right. Finally, a r e  reports —  are reports
of value in connection with the lamentation of a plan?
A I believe that any tine that an organisation
i® compelled to do something under an order of the court, 
it must mean that there was a certain amount of reluctance 
to do whatever the court has ordered in the first place.
And therefore, periodic reports as to how well the school 
board is doing I think definitely are in order.

HR. WILLIAMS} No further questions.
MR. WITT: I have no further questions. Doctor.
TOE COURT: All right. May this witness be

excused from any further appearance in the trial at this time?
MR. WILLIAMS: I'd like for him to wait in the

courtroom.
THE COURT: All right.

(Witness excused.)
MR. WILLIAMS: Your Honor please, I should like

to call, before I call the plaintiff, I’d like —  I have 
been delaying in doing a couple of things, if Your Honor 
please, that I should like to do. If the Court please, in

1672

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reference to this natter of transportation which was a 
contractual arrangement with the county which was testified 
to by Dr. McCullough, I had previously contacted Coanissloner 
Stimbert, and he mailed to me on the 12th day of May a letter 
and attached in an envelope which I'd like to attach to that 
letter and file it with the Court as an exhibit in this case.

THE COURT: 138.

(Thereupon, the document referred to above % 
marked Exhibit Ho. 138 for identification, 
and received in evidence.)

THE COURT: And furnish copies7
MR. WILLIAMS: Yes, I have furnished copies.
May I inquire, if Your Honor please, as to what 

exhibit 137 was? I don't seem to have that.
THE COURT: Exhibit 1377 Yes, we did not have —

this would be Exhibit 137 —  seven.
MR. WILLIAMS: 136 was the last one.

(Thereupon, the document referred to above wa 
remarked Exhibit Mo. 137 for identification, 
and received in evidence.)

MR. WILLIAMS: I should also like to introduce
in evidence, if Your Honor please, in support of the testimony 
of Mr. Ravin, a document which I received from the Chattanooga 
Housing Authority which shows tbs existing and proposed public 
housing in Chattanooga.

THE COURT: Exhibit 138.
(Thereupon, the document referred to above was 
marked Exhibit Ho. 138 for identification and 
received in evidence.)

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1674
MR. WILLIAMS: And at tills time, I should like to

call to the Court's attention and ask the Court to take judicik 
notice of the Chapter 294 of the Public Act of 1969, Section 
Section 4 —  Section 4, Subsection —  Subsection 2(b), Subsect;. 
to wherein it states as follows, if the Court please, and I'd 
like to ask the Court to take judicial notice of tillsi "The 
cost of pupil transportation services in a county shall be det^ 
mined by adding together the allowances made in such county 
under (1) and (2) above. In making the allowance herein pro­
vided for pupil transportation, only the average daily attendah
of pupils transported at public expense who live one and one-hi 
(1 -1 /2 ) miles or more from the school to which they are assign^ 
by the respective Board of Education and in which they are 
enrolled shall be taken into account."

Mow, I'd like to call Mr. Mapp.
THE COURT: Your reference, of course, was

Tennessee Public Acts?
MR. WILLIAMS: Yes, sir. And that was to refute

the testimony which Mr. Henry mistakenly gave, an impression 
that he had, I believe was Mr. Henry, that if a child —  if a 
child lived to a school —  closer to a school than that to 
which he was assigned that the State would not provide the —  
its share of the transportation under the minimum foundation 
program. This refers to the Act, reflects that the State vouli 
still provide it because the Act provides for transportation 
to be furnished to the school to which assigned and it says 
nothing about any intermediate schools.

JAMES R. MAPP,
the plaintiff, called as a witness in his own behalf, being 
fir3 t duly sworn, was examined and testified as follows:

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Mapp - Direct 1675
DIRECT EXAMINATION

BY MR. WILLIAMS:
0 This is Mr. James R. Mapp?
A That's correct.
Q And what is your age?
A 43.
Q Where do you live?
A 514 Terrell Street.
Q That's here in Chattanooga, TennesiMe?
A Yes, it is.
Q How long have you lived here, Mr. Mapp?
A 33 years.
Q I believe you are a black man, are you not?
A Yes, I am.
Q And are the original plaintiff in this lawsuit?
A Yes.
Q Filed in —
A (Interposing) Yes, I am.
0 State the names and ages of your children
beginning with the oldest and proceeding to the youngest.
A Brenda is 22. Debra 20, will be 21 in August;
Mickey will be 20 in September. Johnny will be 19 in 
NoveR*t,er and Angela will be 16 in December. Tony will be
15 in February, Alecia will be 13 in February and Ivanetta 
will be 11 in December.

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q Mr. Mapp, it was impossible for the Chattanooga
School Board to got rid of you by attrition, wasn't it?

At the time you filed this suit, I believe 
your four oldest children were in school?
A This is correct.
Q That would be Brenda, Debra, Mickey and Johnny?
A Right.
0 And, have they all been graduated now?
A Yes, they have.
Q Chattanooga School System, and your four younger
ones are now in the system?
A Right.
Q And, did any of the four older ones, the ones
who were the original plaintiffs ever get to attend a
desegregated school?
A Yes. Debra, Mickey and Johnny.

Mapp - Direct 1676

0 All right. How long —  how old was -
see, Debra was 10 or 9 when the suit was filed, I
she was in the third grade?
A Fourth grade.
Q Fourth grade?
A Right.
0 In what school?
A At Orchard Knob Elementary.
Q How long was it before she attended

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school?
M*PP - Direct 1677

A Let's see, in her eleventh year, eleventh grade.
Q By the time she got out of high school, she
was desegregated, is that right?
A Right.
Q How did that happen? Did you move or something,
on the freedom of choice?
A And we did move, we did move, too.
Q You did?
A Yes, during the interim.
G And, how long was it before Debra got to
attend an integrated school?
A Debra was at —  Brenda never did. Debra was —
Q
school?

The oldest child never got to attend a desegregate!

A No.
G Debra in the eleventh grade, Mickey in what grade?
A Mickey in the tenth grade.
Q All right. Jbd, John —
A (Interposing) Was, I believe, eighth grade.
seventh or eighth grade.
0 And how did that happen?
A We moved into Brainerd Junior High sons and
the plan gradually as it caught up with him about that time.
Q Had you not moved, would all of your children have

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Mapp - Direct 1678
continued to attend totally segregated schools till high 
school? Where did you live when the safit was filed?
A i lived in the Orchard Knob area. How, they
would not have if I had been able to help it.
Q Well, if you had not moved, your children would
have been zoned to totally segregated schools?
A This is correct.
Q Yes. How then, what was your occupation at tha
tine the suit was filed?
A Assistant Manager, North Atlanta Mutual Life
Insurance Company.
Q I should have inquired as to what schools and
grades your present children are enrolled in. Children who 
are presently in school.
A Well, all but one are still in school. My older
daughter is in the fourth year at the University ready to 
begin her fourth year at the University of Kentucky.
Q Brenda?
A Brenda —  Debra will —  is in her third year
at the University of Kentucky because Michael is the only 
who is out. Johnny is at Murphy State, his first year.
0 In college?
A in college.
0 Is that in Kantucky?
A in Kentucky. And Angela is a ninth grader at

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Mapp - Direct 1679
Brainerd Junior High. Tony is aa eighth grater at Brainerd 
Junior High. Aleeia is a sixth grater at Suanyslte and 
Ivaaetta is a fourth grader at Sunnyside.
0 All right. Mow, d a t e s  your occupation whoa
this suit was filed?
A Assistant Manager with n o r t h  Atlanta Mutual
Life Insurance Company.
Q Did that occupation change?
A Tea.
Q When?
A m  1964, I believe it was, I becaae manager of
the Onion Protective Life Insruance rnminaj for nine souths. 
Then I left there and opened ay own general lasnranne ■ryewoy 
where I remained for nearly four years.

And then I becaae employed with the Model Cities
Program.
Q All right. What ia your position there?
A I aa a housing specialist.
Q All right. Do you have any occupational specialty
in the area of real estate?
h Yes, I am a licensed reel estate salesmen.
Q All right. Do you have knowledge —  do you —
have you had any connection with the Chattanooga Branch,
HAACP?
A Yas. I am currently President and have been for

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Mapp - Dtract 1680
•boat nine of the last elavan years
Q All right. I bailers yoa wsrt president at the
tine this suit was filed?
A This is correct
0 Do you hare knowledge regarding the residential
nobility of black persons in Chattanooga?
A Yes, I do
Q What are the facts?
A The facts are that because of limitations placed
on blacks, naybe I should say constraint in the form of 
city actions or inactions, as the ease night be, reluctance 
on the part of our real estate people, reluctance on the part 
of our, say, our Mortgage loan coapanies —  all of thane hare 
been factors that hare tended to gbettorisn or determine 
exactly whare blacks will lire.
Q As a result of these, do blacks tend to lire
in racially segregated areas?
A Yes.
Q And is that still true?
A This is still true.
Q And has it been true for the last decode?
A Yes, it has.
Q In connection with —  I an sorry. I don't

tp .

hare a copy of this.
In connection with your duties in the Model Cities,

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Kapp - Direct
art you Avars of a planning atattaant autelttad by tha 
Chattanooga Modal Cl tins Prograa to tha Federal Qovara

1681

it?
A Yes, I an.
Q show it to you, it*a development of Nodal
Cities Program.
A That's what vs call oar aid-plan statenant where
we aura dealing with problem analysis.
0 AIL right. And, is that a copy of that document?
A Yes. This is one of the rough drafts of that
dominant.
q i would like to introduce that as the next
exhibit.

THE COURT: 139.
(Thereupon, the document referred to above 
was narked Exhibit 139 for identification! 
witness Mr. Kapp, and received la evidence

MR. WILLIAMS: May it please the Coart, X should
like to just direct the Court —
q  Maybe I will ask you to turn to page 30 of that
exhibit, 139, Mr. Mapp, and refer to the portion of it 
which relates to housing and which sets forth sons of the 
problems in housing in Chattanooga and read the two items 
that I h«ve checked towards the top of the page.
A Item 4, Mortgage loens have not been readily
available to black residents. Item €, reluct m o e of reel 
estate interests in carrying out the Open seeing Lew.

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Mapp Direct u u
Q All right. Now, whet ie the Ope* Hensing Lew?
A This is the Federal Open aoneing Lew.
Q Federal Housing Lew, Anti-discrimination?
A This ie correct.
Q All right. Now, refer to the, towards the bottom
of the page, two problem listed In reference to relocation 
and list the item —  read the item which I hare checked.

MR. WITT: May it please the Court, I —  I
object to this cm the basis of its irrelevance. It’s 
interesting, but I don't believe it's relevant.

THE COURT: Well, 1*11 make a better determination
of the relevance after I have received it.

MR. WILLIAMS: Thank you, air, yen.
A Item one, same existing racial discrimination
and in the purchase and rental of housing.
0 All right. Fine, thank you. That will be all
of that exhibit.

In view of this housing discrimination which you 
have described, do you feel that a desegregation plan based 
on contact sonas around Individual schools would be effective 
to separate the schools?
A No.
Q Do you have any knowledge of the housing projects?
A Tes, I do.
Q And the schools. State that, please*

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A
H*PP Direct

It»s getting b m t  50-50, I think.
What is ths cosplaxion of ths school? 
Getting near 50-50.

1604

Q
A
Q I son. So than, do vs find, Mr. Mapp, that
there Is a definite relationship between the racial segregation 
or racial integration in housing projects and schools when 
they are located by each other?
A I definitely believe that there is a very close
relationship.

MR. WILLIAMS: MO further questions.
CROSS EXAMIMATI0W

BY MR. WITT:
Q Mr. Mapp, I believe you testified that you were
familiar with public housing in Chattanooga. Who makes 
decisions with regard to public housing?
A There is a board, Chattanooga Housing Authority.
Q Do you know the —  hov this board is appointed?
A I believe they are appointed by the mayor of the
City of Chattanooga.
Q Hov large is the board?
A Five members, I believe.
Q Is this a decision miking board?
A Yes, it is.
Q Do you —  do they have the power to desegregate

'T 'V .n i

Pinny Wood?
v

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Mapp - Cross 1(85
MR. WILLIAMS: Wall, of course, I object to that.

That's asking hie about a question of law, if Tour Honor 
please.

MR. WITT: I don't think it's a question of lav.
Be knows who governs the housing project. Be stated he did.

THE COURT: Referring to school or housing
projects?

* <jMR. WITT: To the housing project.
A Oh, they have the power to desegregate the housing
project.
Q If the housing project were desegregated, would
the school be desegregated?
A Yes, under the present soniag.
Q Does the defendant in this case have the power
to desegregate the bousing authority?

MR. WILLIAMS: I object to all this.
■<R.. WITT: He knows this.
MR. WILLIAMS: Counsel is asking hist about a

legal question.
MR. WITT: His understanding of the power —  he

testified —
tHE COURT: Well, the latter question I think

would be argunentive. Bitter questions seems to aw would 
be argunentive. I take it there is no contention the 
School Board operates the housing^project.

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Q Mr. Mapp, last year did you havt a stodcnt
Mapp - Cross 1686

at Brainard High School?
A Yes, I did.
Q Which <me was this, Johnny?
A That's right.
Q Sir?
A That's right.
Q Did you have any familiarity
with rsfersncs to tha events that oocurrad on tha caapus at 
Brainard around April tha 15th of last yaar?
A Hot tha lnoldants thswsslvea but tha problem and
solution to tha proMsma. yas.
Q In tha course, In your capacity aa President of
tha HAACP, did you Issue a public stataaaat?
A i am not certain whether I did or not. I issued
so many.
0 I hand you a document, "Statement of HAACP
Chattanooga Branch's Position on tha School Crisis in 
Chattanooga Schools" and ask you to identify it.

MB. WILLIAMS: Kay It sea it, please?
MR. WITT: Yes, excuse aa.

0 Would you identify that, please, Mr. Mapp?
A Yes. This appears to be a statement, I believe,
issued by one of tha committees of tha branch, I believe.
1 aa not sure which coamitte, now.

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Mapp - Cross 1<»7
Q Wsll, you believe it was issued by a coronittee
of the NAACP?

A it appears to be —  it appears to be one that
eoold be issued by a cownittee of the NAACP.
Q Mould you eake that an exhibit to your testiaony,
please, sir?

HR. WILLIAMS: Ho objection.
THE COURT: 140.

(Thereupon, the dominant referred to above 
was narked Exhibit No. 140 for identlfieatlo 
witness Mr. Napp, and received in evidence.)

MR. WITT: Ho further questions.
REDIRECT EXAMINATION

BY MR. WILLIAMS:
Q Mr. Napp, do you agree with the statenant of
the Chattanooga Branch, NAACP, which was issued in the Brainerd
situation?
A Generally I do, yes.
Q Do you and —  do you desire and has it always
been your desire in the eleven years you have been struggling 
against the School Board to try to get —  integrate the 
school systen of Chattanooga?
A Yes, it has.
Q Would you be right pleased if we could get it
desegregated now?
A Very nuch so.

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Happ - Redirect

Q And, you have heard the testimony of the e x p e r t *

who have b e e n presented h e r e  i n  your behalf?
A Too.

Q Regarding tho noeooslty of abolishing sogrogsMoii
and nixing tho races in every school in this system as to 
both t e a c h e r *  and students, do you agree vith that testimony?
A Tea, I do.
Q Is that and has that been your philosophy
all the tine?
A Yea, it has.

1688

Q Hr. Happ, I forgot to ask you about your
educational background. What is your educational background? 
A I finished Howard High. I attended All State
University, Tennessee State at that tine for one year. And,
because I had a lot of training that —  vith their no college 
credits.

Q All right, sir. How, the Brainerd High School
situation, Mr. Mapp, state what t l x e t involved, just briefly. -
I don't rant to go into it in —

A (Interposing) Well, the Brainerd High situation
involved symbols and pep songs that were offensive to black 
students.

Q What was that symbol and vhat was that pep song?
A The pep song was "Dixie". The symbol was the
Confederate flag and, of course, my dey that men compounded by9 my dey that



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Mapp - RaUrtct 1689

the lack of total inrolTwunt of tha black students la tha 
total program of tha school.
Q whan you say tha lack of total lntolvant of
black students, what do you maan? You aaan tha black students 
ware excluded from various activities?
A Yea.
Q Within tha school?
A Yes.
Q What are sons of than?
A Wall, one was tha honor Society during year one.
Many of tha clubs, tha majorettes, there ware a number of areas 
where blacks ware excluded.
Q Did you as a black parent have —  share these
objections with your children and tha other black children?
A Yes, I did.
Q Do you as a black parent, as a plaintiff in
this lawsuit, feel that the School Board should have taken 
measures to ensure that the sensibilities and the full 
integration of black children were recognised and implemented?
A Yes, yes.
0 Do you feel that a —  that a school desegregation

should contain measures which provide for such recognition 
and implementation of the cultural and social values of black 
people?
A Yes, I do.

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Kipp - Riorou 1690
KECHOS8  EXAMIMATION

BY MR. WITT;
q  Just a couple of questions, Mr. Kipp. Under th«
plan that Dr. Stolen was explaining to tha Court, 16 white 
teachers would be transferred out of Ursinerd and 16 black 
teachers would be transferred into Brainerd prior to 
September of 1971. And, the racial composition of the student 
body at Brainerd would move from black If4, and white, 1160 
to blacks, 700 and whites, 650. Do you see this as haring 
any bearing upon the circumstances that existed at Brainerd 
last April?
A Yes, I believe it would eliminate happenings of
last April.

REDIRECT EXAMIWATIOM
BY MR. WILLIAMS:
q wait a minute. I —  you say you believe that
would have?
A I believe that the plan as proposed would elimina
I should say, future happenings of this nature at Brainerd. 
q  You mean the plan which we have proposed?
A That we have proposed. I believe he mentioned
Dr. Stoles’s proposal.
Q Yes, okay.

MR. WILLIAMSt That’s all.
(Witness excused.)

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MR. WILLIAMS: May it please tha Court, with

the excaption of tha —  Volume 2 of tha Government's publication 
"Racial Isolation ia tha School*," which I should Ilka —  

which tha Court —  furnish tha Court as aa exhibit, that
would conclude the plaintiff's ease.

THE COURT: very wall. Any rebuttal testimony?
MR. WITT: No, Tour Honor.
THE COURT: Does that couplet* the evidence.

then, in tha case? very wall.
Assam you gentlemen wish to have *<*• arguuant 

on this and have that in tha morning. Any reason why we 
should not receive that in tha aorning?

MR. WILLIAMS: If Tour Honor please, I would
be willing to make it very brief if we could do it this 
evening. Cf course, I believe the Court doee have a personal 
problem, though.

THE COURT: Mo, I just think that it would
serve the purpose all of us are seeking to aoeoapllsh if 
we do this in the morning, I believe it would. Normal

time at this time and I do have, furthermore, I 
do have another oase scheduled, quite frankly.

MR. WILLIAMS: Oh, I see.
tHE COURT: At this hour, and we have been

passing our cases in order to ccaplete this. M  to pass, 
well, two cases.

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MR. WILLIAMS: Nell, f ry will.
THB COURT: i believe endar the elrcewtaao—

it would be sore helpful to all, and as I say, I do have 
another case that I east hear at this time or ahould hear 
at this tine in chambers. So, I believe it eoeld be beet 
if we adjourn at this tine until 9:00 o'clock in the earning.

MR. MITT: May it please the Court, would it be 
possible to do this by brief Instead of by oral argueent?

THB COURT: Well —
MR. WILLIAMS: Tour Honor, the last tine X

waived all argueent it was eight —  and one of these cases 
was eight years ago and I got a bad decision and I have 

leary about waiving oral argtesst.
THB COURT: Geatleeea, I think that we should

sees decisions probably in this case, and I don't think 
we should put off by briefing and so forth the — *»rr of 
making some decisions in the case. I believe that we should 
have argument on this matter in the morning.

MR. WILLIAMS: Thank you, sir.
MR. WITT: is that —  nay it please the Court,

■my it please the Court, if the argueent is in the morning, 
would we given permission to file a brief?

THE COURT: Tee, you certainly have permission
to file a brief.

MR. WITT: After the argueent?

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THE COURTj But —  yes, given permission to file 

a brief, but whether the Court will delay esting a decision 
is another natter. Seems to me that we need to raalro some 
decisions here.

HR. WITT: I agree, the decisions need to be made.
I just —

h r . WILLIAMS: (Interposing) Very well.
MR. WITT: I have no intention of delaying it

but it just appears to me, as far as I an concerned, it's a 
very complex natter particularly from a legal point of view 
and I would like to have the opportunity to present it, if 
I nay.

THE COURT: All right. Let's adjourn court
then until 9:00 o'clock in the morning.

(Court adjourned.)

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U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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IN THE DISTRICT COURT OP THE UNITED STATES 
EASTERN DISTRICT OF TENNESSEE 

SOUTHERN DIVISION

JAMES JONATHAN MAPP, ET AL, 
Plaintjffs.

vs.
THE BOARD OF EDUCATION OF THE 
CITY OF CHATTANOOGA, ET AL,

Defendants.

NO. 3564

APPEARANCES:
FOR THE PLAINTIFFS:
Avon Williams, Jr., Esq.
FOR THE DEFENDANTS:
Raymond B. Witt, Jr., Esq., of Witt, Gaither, 
Abernathy and Wilson, Esqrs.

May 19, 1971 
Chattanooga, Tennessee

ARGUMENT OF COUNSEL

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THE COURT: All right, gentlemen, are we

prepared to proceed in the case of James Jonathan Mapp versus 

the Board of Education?

MR. WILLIAMS: Plaintiff is ready, Your Honor.

MR. WITT: Defendant is ready, Your Honor.

THE COURT: Any matters to be taken up before

we proceed with the argument in the case?

MR. WITT: I have none.

MR. WILLIAMS: Well, I can do this during the

course of argument.

THE COURT: All right, ready to proceed?

MR. WILLIAMS: Yes, sir.

MR. WITT: Yes, Your Honor.

THE COURT: All right.

MR. WITT: May it please the Court, in the

hearing before this Court, the defendant Board has been given 

the responsibility of proving that its actions and decisions 

are such as to negate any charge or accusation that it has 

operated contrary to the Constitution of the United States 

and as such, has failed to perform its duties.

In the course of preparing this statement, I'm 

conscious of the fact that there might be seme possibility 

that this statement would be or could be implied as a critici 

I do not intend to give that impression. I'm only attempting 

to place the decision that this Court is presented with in

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what is --

THE COURT: Yes, just a moment, Mr. Witt.

It has escaped my mind this morning, we do have another case 

that is scheduled to start this morning, Kayser-Roth versus 

the Textile Workers Union of America.

Gentlemen, I don’t think there is any real 

prospects of being able to start that case until 1:00 o'clock 

So accordingly, we will excuse the parties and witnesses 

and others that are here until 1:00 o'clock. Be back at 

that time, we should be prepared to proceed with the trial.

MR. WITT: In attempting to discharge the

responsibility that we have to our client, if there is any 

observation or any aspect that is a part of the consideration 

then I consider it my responsibility to call that observation 

or that point of view to the Court's attention and argue 

its relevancy and in this way and this way only can the 

Court have the full benefit of the advocacy proceedings 

which are a part of our system of government and law.

As I understand it, the defendants have been 

given the burden of proving that its actions since 1965, the 

last time that this school board was specifically before this 

Court, that its actions since that time have continued to 

measure up to the minimum standard compliance with the

Constitution as announced by Brown 1 and Brown 2 and also
\ f [ '  w. >

the applications and implications of those decisions in

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U N I T E D  S T A T E S  D I S T R I C T  C O U R T __________



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cases of that court since that time.

I think it also should be pointed out that the 

law as now applicable to these facts and circumstances 

necessarily require interpretation of the 28-page decision

by the United States Supreme Court which was rendered only 20
At O r>' - '*days ago, 20 days before this hearing and only to the

defendant 27 days ago and the defendants also recognize that 

the language in Swann is controlling and overrules previous 

decisions of the various appellate courts, even if rendered 

as recently as December of 1970, as is true of the decision 

of the Nashville School System case.

It's also recognized that previous appellate 

court decisions are only overruled by Swann if the language 

in Swann is clearly contradictory of the language in the 

appellate decision, again such as the December 1967 decision. 

However, to the extent that Swann does not conflict in the 

appellate court case, then the appellate decision remains 

the controlling law. Swann is a long decision and it will 

require continuing interpretation. It certainly would be an 

exaggeration to indicate that the meaning of Swann is 

crystal clear.

However, it's defendants' contention that 

Swann represents the last and the only and main specific 

declaration by the United States Supreme Court to the effect 

that the recognition of race is permitted or approved by the

R I C H A R D  b M I T H .  O F F I C I A L  C O U R T  R L P O R T E R

U N I T E O  S T A T E S  D I S T R I C T  C O U R T __________



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Constitution of the United States. It's our contention that 

the Supreme Court has approached the declaration in this 

particular aspect and implementation of Brown 1 and 2, slowly 

and carefully.

Now in Brown 1, these were the Court's own
/>

words as it described the factual situation before it. In

each instance, they have been denied admission to schools

attended by white children under laws requiring or permitting
|>segregation according to race. Then again later the Court 

stated its own impression of the issues before the Supreme
i 1

Court and stated it in these words: We come to the question

presented, does segregation of children in public schools 

totally upon the basis of race deprive children of the 

minority group of equal educational opportunity. In what 

is a very complex field it certainly would appear that Brown 

1 did not require affirmative action on the part of the 

state, but Brown 1 was a clear, "thou shalt not."

Now, the first hint of an affirmative obligatior 

THE COURT: Well, what do you mean by an

affirmative action? They said you had to abolish the dual 

system, isn't that affirmative action? What's negative about 

that?

Does it mean you could just do nothing?

MR. WITT: No.

THE COURT: Well, you have to do something,

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that's affirmative action, isn’t it?

MR. WITT: Yes, it's affirmative action, but

this affirmative action has not exactly been -- this had to 

be construed in light of the facts and other language of Brown 

and I would move to that action.

THE COURT: Well, it's not really accurate to

say then that Brown 1 or Brown 2 requires no affirmative 

action.

MR. WITT: I didn't see any reference in either

one of them specifically to any kind of obligation --

THE COURT: Didn't they say that you shall

abolish all segregation with all deliberate speed? Isn't 

that affirmative action?

, MR. WITT: In the sense that you cannot make

any decision based upon race, yes.

THE COURT: All right.
MR. WITT: All right, then, the 1964 Supreme

Court decision had this to say in the Prince Edward County 
»/

case, we come now to the kind and degree necessary and

appropriate to put an end to the racial discrimination

practiced against these petitioners under authority of
\xVirginia law. Now that plaintiffs' attorneys agree or 

appeared to agree with this concept of Brown, is reflected 

in their March 27th, 1965, motion for further relief in which 

it's clear that they ask this Court to put down a decree

R I C H A R D  SMIT H .  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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requiring this school board to make decisions without regard

to race and to eliminate any racial, any classification based

upon race. In Green there was this reference to or first

specific reference to an affirmative duty in the sense that it

uses the language of an affirmative duty. School boards will

nevertheless be clearly charged with the affirmative duty to

take whatever steps might be necessary to convert to a uniform
. ‘

system in which racial discrimination would be eliminated. 

Later on, and this is the case in 1968 the courts said this,
t«
the officials have the continuing duty to take whatever action

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may be necessary to create a unitary, non-racial system.

This was also referred to in Monroe, decided 

the same day, using this kind of language in referring to the
, i

transfer plan, no official transfer plan or provision of 

which racial segregation is the inevitable consequence may
V

stand under the Fourteenth Amendment and went on to say that 

the school boards must fashion steps with which to create a 

system without a white school and Negro school, but just 

schools.

Then as late as 1969, the Court in giving a

definition to what it intended —  what they intended as the

goal to be attained by a school board described this as a 
i'
school system where no person is to be effectively excluded

vtfrom any school because of race or color.

Now, the nature and extent of this affirmative

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responsibility has been described by the Court in various 

ways, and perhaps the language that is most appropriate to 

this proceeding is the concept of a unitary system. However, 

in evaluating the performance of the defendant board, it 

would appear to me to be important to consider the fact that 

this phrase has not to this day been further defined, even 

as a result of Swann.

Now, when Green was decided and I may be 

incorrect, but my research indicates that this is the first 

time the language, the specific language of affirmative duty 

was set forth in a Supreme Court case.

Now, where was the Chattanooga Board in 1968?

As I heard Mr. Williams say yesterday, in phrasing a question 

to one of his witnesses, he described the situation at that 

time or in 1966 as when the plan had been completely implemente

Now that decision, decision of this Court was 

appealed by the plaintiffs and this appeal was heard by the 

Court of Appeals on December 13th, 1966. A decision was 
rendered by the Court on February the 27th, 1967, and the 

only issue remanded to this Court as I understand the decisioni
was the question* of teacher desegregation and the language 

of the Court said that this Court should have a full evidential 

hearing on teacher desegregation, the teacher desegregation 

aspect of the plan.

Now, to put that in perspective, it must be rem :

R I C H A R D  S M I T H  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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bcrccl that the Supreme Court of the United States didn't address
« v.

itself to the teacher desegregation aspect of Drown 1 and 2 

until the Bradley case in 1965. Prior to Bradley there was 

no specific language in any case. Brown 1 and 2, as I could 

recall that made any reference to the racial composition of 

faculty as a part of an appropriate plan for desegregation of 

the public school system under Brown 1 and 2.

The Court of Appeals noted this in their 

opinion and noted that Bradley's decision had been rendered 

since the Court's decision in the Mapp case and directed that 

this Court be presented all the evidence in regard to the 

aspect of teacher desegregation.

Now, ii the argument before the Court of Appeals 

on December 13th, 1967, '66 is my recollection and the decision 

of the Court of Appeals indicates that the plaintiff urged 

upon the Court what the Court described or referred to in 

language of the plaintiff, that the defendants' plan was a 

totally ineffective vehicle for the prompt elimination of the 

segregated school system and the three judges of the Sixth

Circuit have this observation to make with reference to this
itparticular aspect of the plaintiffs' claim: Such a broad

gauge attack was not developed in the evidence presented to the 

District Court and the next step in the logical proceeding, 

next step of importance is the following £>n December 31st, 1968, 

of the plaintiff in a motion for further relief and this for the

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first time reveals in the pleadings the opinion and judgment 

of the plaintiff that a recognition of race was necessary and 

required in order to implement the rights described under 

Brown 1 and 2.

Normally, a case is governed by the pleadings 

and the plaintiff's understanding of the remedy that the 

plaintiff believes lie is entitled to is limited in most instanc 

to the consideration in the case before the Court.

Now, in November, November the 31st, 1968, and 

after that time, there was no question but that the concept 

of an affirmative duty of some sort was a part of the relief 

that the plaintiff requested and it should be pointed out that 

this relief was not a part of plaintiffs' contention until thal 

time, and this was after Green was decided in the earlier part 

of 1)968 .

Now, normally when a case is tried in this 

court and this case is decided by this Court, and the plaintiff 

the defendants have an opportunity to appeal and an appeal is 

taken, and an appeal is argued and the appeal is decided, and 

that no appeal is taken to the Supreme Court of the United 

States, ordinarily some concept of res judicata results from 

this kind of a proceeding.

Now, it's true that the law at least in the 

minds of the plaintiffs changed from the time of the hearing 

before this Court until the time that the case was argued befor

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the Court of Appeals. This was not reflected by the pleadings. 

It was brought to the attention of the Court of Appeals, butl
the Court of Appeals refused to take consideration of this 

part, and tnen the affirmative aspect, the change in the law 

was reflected and acknowledge by the plaintiff for the first 

time in its motion for further relief filed on, I believe it 

was, December 3 0th, 1968.

Now, this affirmative obligation, once we agree 

and we did agree that the affirmative obligation does exist,

then the next question was what is the nature of this affirmati 
obligation.

Now, here again the Court used this language in 

Green in describing what it meant by an affirmative duty. To 

take whatever steps might be necessary to convert to a unitary 

system in which racial discrimination would be eliminated.

I recognize that it's possible to make an argument that this 

language is not ambiguous, however to my understanding it's 
far from clear.

Now, if there are those who think this argument 

too legalistic, as late as March the 9th, 1970, Chief Justice 

Burger in the case of Norcross versus the Board of Education anc 

the City of Memphis, in the opinion certainly indicated some 

doubt in his own mind about what was meant by unitary system.

He has this to say, & unitary system is one which no person 

is to be excluded from any school because of race or color.

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From what is now before us, it's not clear what issues might 

be raised or developed on argument. As soon as possible, 

however, we ought to resolve some of these basic problems, 

when they are appropriately presented, including whether as 

a constitutional matter any particular racial balance must 

be achieved in the schools, to what extent school districts 

or zones may or must be altered as a constitutional matter, 

to what extent transportation may or must be provided to 

achieve the end sought by prior holdings of the court and
I !

other related issues that may emerge."

This is a separate opinion by Chief Justice 

Burger and it's a concurring opinion and to me clearly 

indicates that the unitary system concept was far from 

unambiguous.

Now, in the late sixties, the Supreme Court in 

a unanimous decision, the Court indicated that there must 

be some ambiguity because it used this languageWe turn 

now to the problem of defining with more particularity the

responsibilities of school authorities in desegregating a
/

state-enforced dual school system. In light of the equal
0 ; 1

protection clausesv pbviously if there was no uncertainty 

about the responsibility the school boards have then the 

Court would not have been called upon to make this statement.

Now in essence, and I'll examine this more 

carefully later, it's defendants' conclusion that the Swann

R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  R E P O R T E R
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opinion permits the recognition of race, hut in an extremely 

limited set of circumstances and only when an adequate remedy 

for a constitutional violation has been found.

As recently as 17 months aqo on December 9th, 

1969, the Sixth Circuit in the Deal case out of Cincinnati 

met head-on the argument by the plaintiffs that Green had 

changed the law. The court has this to say, on page 1390,

19 Fed. 2d, the denial of certiorari in the present case ought 

to constitute our opinion in the first appeal, as the law 

indicates, but appellants contend that the recent decisions 

of the Supreme Court in Green versus the School Board, that 

the law has been changed by the recent decisions of the 

Supreme Court in Green versus County School Board, and 

cited other cases.

In our opinion, these three decisions did not 

change any law applicable to our case. In appellants' 

reliance on these aspects, they have misplaced the gist of 

the holdings in these cases, that is in the desegregation of 

—  free transfer is not an end in itself and would be discarded 

where it would not bring about the desired result.

Now the Court described the issue in the case 

this way again on page 1390, the basic issue in the case was 

whether the board had a constitutional duty to establish a 

program to balance the races in the Cincinnati School System.

We dealt with this issue extensively in our opinion in the

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first appeal and held that there was no such duty where the 

imbalance had resulted from the school concentrations^ in the

school neighborhood and not from any act of discrimination
0 _

on the part of the board, that admissions to schools was 

still a part of this Court's understanding of Brown and is
/i

reflected in this sentence, again on page 1390, /there's not 

an iota of evidence in this record where any of the plaintiffs

or any of the clients which they represented was denied//
school entrance in the district of his residence. ParenthetiCc 

in a sentence and somewhat out of context, the aspect of 

actions by the state authorities other than the school boards 

was considered by the court in this case and it had this to 

say: "In our opinion, the burden of righting wrongs alleged

to have been committed by public or private agencies ought 

not to be foisted on the board of education, which had enough 

problems of their own to solve in providing education for 

the young, nor should such burden be saddled upon the owners 

of property, taxed to provide funds. Appellant should revoke 

whatever remedies they have against such agencies, if these 

agencies were not made parties in this case."

In our frequent references to Piney Wood School, 

this language which until the decision by the Court of Appeals 

in December of this year in the Davidson case was what the 

best evidence of what the Constitution said in this particular--

THE COURT: Didn't Judge Miller hold that the

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Eteal versus Cincinnati case had been overruled by such decision 

of the Supreme Court, isn't that what he said? That was his 

opinion, and didn't the Court of Appeals adopt Judge Miller's 

opinion in that respect?

MR. WITT: That's next on my agenda, I'm trying

to resolve the evolution of the law and the law under which 

this board was attempting to operate.

Now, in the next decision by the Court of 

Appeals, as Your Honor has indicated was Kelley versus the 

Board of Education, which was decided, in December of this year,

I beg your pardon, of 1970. This was a decision of a differen 

panel, and it arose out of the situation in the Nashville, 

Tennessee, schools.

Now, this case refers or is based upon a rather 

lengthy decision by Judge Miller and in Judge Miller's decision, 

as I interpreted it, there wasn't any doubt about it as far 

as evidence is concerned or that the Nashville Board had 

continued to make decisions based upon race and had continued 

to administer that school system in many ways so as to maintain 

segregation and he so stated several times.

Now ordinarily, the facts should make a differen: 

and it's our contention that there is nothing in this record 

to indicate that this school board since 1966 has evidenced 

any intent to maintain segregation or to create segregation of 

pupils in schools.

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THE COURT: Well, would you say that in light

of the testimony that you introduced that all of the black 

schools that formerly existed when you have a dual system, 

that as of now you have only 48 white students in those 

black schools? Do you say that's not evidence of something?

MR. WITT: Yes, it's results, Your Honor, but 

in Swann, if we skip over the default concept, to begin with,

to me Swann places a responsibility on school boards that are
/in default^.^Whatever this may mean, to explain any apparent 

result from free desegregation. Now, it does not find —  

it refers to the burden of proof and it refers and it directs 

the Court to take careful scrutiny in certain situations, 

but these are only as I interpret them, these are in cases 

of the burden of proof upon school boards that perhaps would 

be generally characterized as de jure school boards, but 

this is a presumption or a burden that can be carried and 

rebutted and in this situation, let's take the Piney Wood 

School. That was a decision made, as I recall in 1960, I 

don't believe there's any member on this board now that was 

on that board then.

THE COURT: Well now, really, is that relevant, 

Mr. Witt? We're not dealing with the personalities, this 

board has much responsibility for what the board did in 

1940 and 1950 and 1960. This is a continuous matter we're 

talking about, an institution, aren't we? We're not talking

1693- 16

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about individuals.

no, Your Honor. The issue here is the future, mainly, what's 

going to be done now, in the future, we can't undo the past.

THE COURT: Isn't that exactly what Brown

1 and Brown 2 were all about? To undo the past? How can 

you say we can't undo the past, isn't that what the whole 

lawsuit is about?

MR. WITT: I think from the -- it's what the

lawsuit's about, and it's a practical question as to what 

extent the past is capable of being eradicated.

For example, if I may, we're certainly concerned 

in this court, as I understand it, to do one particular thing, 

and that is effectively remedy the situation.

Now, how does a school board with its power 

and capabilities and assuming that it has the responsibility 

to remedy something that went on in the past, how does it go 

about remedying what happened in the past?

Now, in the ordinary sense, it's the best 

example I can give, to put this in prospective, and like all 

analogies, this will be a long way from perfect —

THE COURT: Let me just ask you these questions

and see if we can bring this to a point. How is the situation 

at Howard any different today from what it was in 1940, 1950 

or 1960?

MR. WITT: In a sense, yes, and in a sense,

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1693- 18

desegreqated faculty. It has a substantially desegregated 

faculty, it's different because the people, the students that 

are there, it would seem to me all should be avare that they 

don't have to stay in that school. This was not true before, 

their choice to stay there, I don't know, I can't —  I don't 

know the reasons why, but it is.

THE COURT: Would your reply be the same,

I take it, to Orchard Knob, where you had zero in 1960, 

zero in 1950?

MR. WITT: Yes, Your Honor, because in my

explanation, that would be that until Swann there was no 

clear-cut legal authority to use race in decisions, now if I 
may --

THE COURT: Well, we're trying this after

Swann now, Mr. Witt, aren't we? We're not trying this 

post-Swann or pre-Swann or pre-Kelley, we're trying it after 

Kelley, after Kelley versus National and after Swann.

MR. WITT: Yes, Your Honor, but we're trying a

board against a set of criteria d f ’ which it was unaware.

THE COURT: Well, it may well have been unaware

of i- in 1969 or 1968, but it's aware of it today and we have 

to try the case on the basis of the law, what it is today.

MR. WITT: Yes, Your Honor.

THE COURT: Not in '69 or '68 or —

MR. WITT: It's different because it has a

R I C H A R D  SMIT H .  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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Honor, but the facts were made prior to that time, and it’s 

the facts that are important, to some extent in this case, 

as I see it.

THE COURT: Yes, the facts were made dating on

back for many, many years. The facts at Howard were made 

before 1962, when segregation was first ordered to be 

disestablished. The facts were made at Orchard Knob, were 

they not, before then? It is your contention that this 

board owes no obligation with regard to the facts that were 

established at that time?

MR. WITT: It does owe an obligation, but until 

Swann it was under an obligation to pay attention to Brown 1 

and 2, which said you couldn't make decisions on the basis of 

race. If this appears to Your Honor to be unreasonable, I woulc 

like to quote to you from the hearing before the Supreme Court 

in a colloquy between Justice Black and Counsel for one of the 

plaintiffs.
THE COURT: Regardless of any colloquy, and real 

regardless of what may have been said in every sentence in the 

Swann case, is there any question at all about what the Supreme 

Court did in the Swann case, is there the slightest question as 

to what they did in that case?
MR. WITT: There is in my mind, Your Honor, yes

THE COURT: Well, what is your question about

1693- 19

MR. WITT: I cannot agree more with you, Your

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what they did? Did they or did they not approve all of the 

procedures that had been followed in the Mecklenburg case?

MR. WITT: They placed great —

THE COURT: Well, just answer my question,

did they or did they not approve every single procedure 

followed in the Mecklenburg case?

PAR. WITT: Yes.

THE COURT: So is there any question about what

they did.

MR. WITT: Yes.

THE COURT: All right, what is your question?

MR. WITT: All right, let's take this responsibi:

with reference to construction of schools.

On page 22, and this is talking about the presum]

tion aspect —

THE COURT: And what are you referring to, please

MR. WITT: The Swann case on page 22, what

I have is 22 and I don't --

THE COURT: All right.

MR. WITT: It's in Section 1, no, it's discussin

racial quotas and balances.

It says this, "No per se rule can adequately 

embrace all the difficulties for reconciling all the competing 

interests involved, but in a system with history of segregationI
the need for remedial criteria of sufficient specificity to 

assure a school authority's compliance with its constitutional
R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  R E P O R T E R  

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duties warrants a presumption against schools that are 

substantially disproportionate in their racial composition 

where the school's authority -- school authorities proposed pla 

from a dual to a unitary system contemplates the continued y

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existence of some schools that are all or predominately one

)

race r They have the burden of showing that such school 

assignments are genuinely non-discriminatory."

The Court should scrutinize such schools and 

the burden upon the school authorities would be to satisfy 

the Court that their racial compositions are not the result 

of present or past discriminationatory action on their part.

Nov/, that has to do with students, and again, 

it's a burden of showing, but then when you move over to the 

construction of new schools, it refers to future action of 

school boards, and I assume that the future aspect was 

put in there for a reason? I turned my copy, Your Honor, it's 

on page 17, it's the last part of Part IV, and it's in the 

last paragraph, which says this, "In ascertaining the existence 

of legally imposed school segregation, the existence of a patte:: 

of school construction and abandonment is thus a factor of 

great weight in devising remedies where legally imposed 

segregation has been established, it's the responsibility of 

local authorities and District Courts to see to it that future 

school construction and abandonment is not used and does not 

serve to perpetuate or re-establish the dual system."

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The retroactivity of Brown 1 and 2 and the 

retroactivity of Swann is certainly a part or it's a reasonable 

conclusion or inference to be drawn from this language to 

indicate that boards have responsibility with regard to 

future school construction and abandonment --

THE COURT: Well, it's obvious that we can't
deal with this case on a retroactive basis. There's no way 

in the world that we can go back and put black students in 

black schools or white students in black schools in 1965.

MR. WITT: That's right.

THE COURT: Retroactivity, what retroactivity

would be involved in this case? We're talking about the law 

as it is today, aren't we? What we are going to do today 

or tomorrow?

MR. WITT: Yes, but let me draw your attention

to one other aspect, please. If there is a stigma remaining 

in this school system today, once you determine that it 

exists, then you determine whether or not it relates to an 

action of this Board in the past. If you determine that the 

vestigial remain is a fact, is found in this case, was 

caused by somebody other than the school board, then it's 

not a responsibility of the school board.

THE COURT: In that connection, let me ask you

this and see how you analyze this problem.

In May of 1963, as I understand it, you had an

RICHAflO S M I T H  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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all white school at what in now Riverside. In September of 

1963 you had an all black school, who was responsible for 

that?

MR. WITT: The Chattanooga Board of Education.

THE COURT: And today you have an all black

school there today, who is responsible for that?

MR. WITT: The Chattanooqa Board of Education.

THE COURT: All right.

MR. WITT: But perhaps the action that were

taken in that time were not illegal at that time and were not 

questioned, isn’t it?

Here is the decision that a group made based 

upon the facts that existed in 1963 and one of the difficulties 

in presenting the proof was that in order to be able to 

explain that situation, I would have to have witnesses that 

weren't even available.

THE COURT: Explain what situation?

MR. WITT: The circumstances that had to do

with the division of Riverside and Howard.

THE COURT: Well, have you not explained it

yourself? I asked you who was responsible for it being all 

black today and you said the board of education. Doesn't 

that explain it? What further explanation do you need?

MR. WITT: Well, there's a result flowing from 

that, of which the people that made the decision at that time

R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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weren't aware.

THE COURT: Let me ask you, Mr. Witt, how do

you interpret —  you were discussing earlier the Kelley case. 

How do you interpret this language in that case? The basic 

issue presented for decision may be stated simply as follows: 

Is defendant school board properly fulfilling its affirmative 

duty to take all necessary steps to facilitate the immediate 

conversion of the Metropolitan Nashville School System in 

which racial discrimination will be totally eliminated.

MR. WITT: I don't know where he got the

concept of maximized integration, I can't find it there.

There isn't any doubt about what that says, no, sir.

THE COURT: Wherever he got it, doesn't this

Court operate under the mandate of the Court of Appeals of the 

Sixth Circuit?

MR. WITT: Except where it's abrogated by the

Supreme Court.

THE COURT: Didn't you have a decision the day

before yesterday that did the same thing, reaffirmed the 

Kelley case?

MR. WITT: I am not aware of that case.

THE COURT: It's the case of Robinson versus

Shelby County. The Court of Appeals, this is post Swann, the 

Court of Appeals completely reaffirmed its decision in the 

Kelley case. Do you say now that the Kelley case is not

R I C H A R D  S M I T H  O F F I C I A L  C O U R T  R E P O R T E R
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controlling authority in this Court?

MR. WTTT: To the extent that it's a reasonable

interpretation of Swann, that if it's inconsistent with Swann, 

it's overruled, Your Honor.

THE COURT: How could Robinson be overruled

by the Swann case, when Robinson is after Swann, it may be 

Robinson is overruled by the Supreme Court. Until it is, 

can this Court disregard the mandate of the Court of Appeals 

under which it operates?

MR. WITT: If the Court of Appeals has decided e

case since Swann, no, Your Honor, you're bound by that, but 

I'm sorry, I can't hold up my hand to that, because I haven't 

read that case.

THE COURT: Well, it quotes this language in

the Robinson case, after quoting other portions from the 

Kelley decision. They say this, "All that is required of the 

defendants in the area of zoning is that it take affirmative 

action to maximize integration in all instances to promote 

the unitary school system."

How would you read or interpret that language?

MR. WITT: We have no defense to that kind of

language, Your Honor.

THE COURT: Well, isn't that the language that

the Court is mandated to follow under our constitutional system 

of government?

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1693- 26

MR. WITT: Not if my interpretation of Swann

has any validity at all, Your Honor, not necessarily.

THE COURT: How do you reason in that manner?

Here's a Court of Appeals of the United States which presides 

over this Court, whose mandates this Court must follow or 

otherwise violate its oath, how do you say I can disregard 

that?
I4R. WITT: Only if I could be sufficiently

convincing to indicate that Swann has inconsistencies with 

that statement, and if I am unable to do that then, Your 

Honor, you have no choice, but I think it's clear, at least 

the way I read Swann, and I don't contend to indicate to you 

or anyone else —  but it certainly places a responsibility 

of the District Court and it gives the Court latitude.

THE COURT: The responsibility is placed on the

Court, but the primary —  where is the primary responsibility 

placed?
MR. WITT: On the school board.

THE COURT: No question about that?

MR. WITT: No question about that, it refers

to powers of the school board.
THE COURT: What we are talking about here is

the obligation of the defendant.

MR. WITT: That's right.

R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  R E P O R T E R  

n u i T t n  c T i t c t  m i . T o i r T  r n i i B T

THE COURT: Not talking about the obligation of



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the Court.

MR. WITT: No question about that; no question

about that.

I would think that since this language certainly 

as far as I know is brand new, with reference to the Chattanooc 

Board or any board, that it would be appropriate for it to 

have an opportunity to respond to whatever Swann means and 

as this Court indicates, it seems to me that certainly the 

Court thought that it was talking about Swann, it was talking 

about basically a different thing, he was talking about the 

duties of Swann, then it was talking about the powers of 

Federal Courts under this Court's mandate, and I think it 

would seem to me that the Board should have an opportunity to 

re-evaluate its position in the light of Swann.

THE COURT: Well right. Well, let's take

it in the light of Swann, is there any question as to what, 

say, the Supreme Court did in that case, that it did not clear] 

mandate that all boards of education must eliminate any 

segregation that is the result of either present or of past 

school board action?

MR. WITT: I would say that that —  that's

accurate.

THE COURT: Really, you've discussed several

times I know in the trial of this case, the concept of a

R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  R E P O R T E R
___________ U M I T E D  S T i T f S  n i S T B I f T  r Q l l B T _________________________________________________



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define? Isn't it rather clear what the courts have said 

a unitary system is, no seqregation as a result of either 

past action or present action of the board, or inaction of the 

board, isn't that what we're talking about?

MR. WITT: Yes, and I think generally then you

come to the question, and it's a practical as well as a legal 

question, what affirmative resources, what practical 

resources does the school board have to overcome these 

remaining things and the capacity —

THE COURT: You're talking about a desegregatior

plan, are you not? You're talking about the principles of 

whether or not they must or must not do it.

MR. WITT: Well, must not do what?

THE COURT: Remove all segregation that has beer

caused by past or present board action , isn't that what 

you're saying?

MR. WITT: And its cause still exists.

THE COURT: Yes.

MR. WITT: As directly relating to the board's

action in the past.

THE COURT: Yes.

MR. WITT: To an extent possibly yes, but now

I would be talking about a plan, yes, you're talking about 

whether or not this is feasible or not feasible.

THE COURT: Well, let's take up Riverside again

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t h a n ,  you say it's impossible to do anything at Riverside?

MR. WITT: Impossible, no.

THE COURT: Well, how do you reconcile that ther

with your position?

MR. WITT: Well, until -- until Swann, I was —

we were under the impression that you could not make decisions 

based upon race, and the only way that you can —

THE COURT: Now, really, Mr. Witt, were you

under that impression? Did you not specifically consider 

race in employing teachers?

MR. WITT: That's the only one exception, Your
Honor.

THE COURT: Well, then, it's not correct to say

that you were under the impression —

MR. WITT: With the exception of the faculty,
I'm sorry.

THE COURT: Why should you consider it in that

instance and not consider it in any other instance?

MR. WITT: Well, yes, yes, I think the concept

of a racially identifiable school, one of the aspects and one 

of the fairly clear-cut aspects would be reflected in the 

faculty. I think this would —  I don't think there would be 

much doubt about this. Take any school and you'll find 

that school's substantial number of faculty members were 

assigned to that school before the court order went into effect;,

R I C H A R D  SMIT H .  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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so the fact that they're still there in that particular 

school is a vestigial remain --

THE COURT: Do you contend that if there were 

never such a thing as dual school systems, if there had never 

been black and white schools, do you contend that your 

faculty situation would be the same today?

MR. WITT: I don't believe I understand your

question, Your Honor.

THE COURT: Well, if there had never been a dual

system, dual school system and there had never been such a 

thing as segregation by race in the schools, is it your content^ 

that the school system today would be the same as it is today?

MR. WITT: It's my contention that under the

set of facts that Swann doesn't apply to these set of facts, 

Swann applies to a school system that maintain a dual school 

system at one time.

THE COURT: Well, perhaps I did not make

my question clear.

Referring just to the faculty, is it your 

contention that the racial composition in the Chattanooga 

schools today would be identical to what it is today if there l}a 

never been a dual system operating by law?

MR. WITT: No, I don't think that is my con­

tention .

THE COURT: Well, if that is not your contentior

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is that not what the Supreme Court in Swann says must be 

disestablished?

MR. WITT: Yes, I think so, but when does the

school system become in a defacto situation —

THE COURT: When does it become what?

MR. WITT: When does a school system comply

with the law and when does this dual standard no longer 

apply?

THE COURT: Well, now, do we come back to the

proposition —  that is, is not the unitary school system one 

in which there is no segregation that is a result of either 

past action by the board or a present action of the board?

MR. WITT: Yes.

THE COURT: Is your racial composition of your

teachers today not the result of past action of the board?

MR. WITT: It is the result, in a manner, yes.

THE COURT: Well, then, is your —  what is

your defense to that?

MR. WITT: Well, at some point, the errors of tie

past should no longer be of legal significance and when 

does this happen? For example, in Ohio —

THE COURT: Do you read Swann to say, well,

whatever the school board may have done in the past, forget 

about that?

MR. WITT: No, I do not. No, I do not read that

that way, I read that the school board should be only
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responsible for what they did in the past, they're not 

responsible for what the Housing Authorities did.

THE COURT: Are they responsible for your

faculty?

MR. WITT: No.

THE COURT: What's the relevance of citing the

Housing Authorities?

MR. WITT: Well, I wasn't. On the faculty probl«js:

it was involved, but in the other aspects of the case, the 

contention has been made that the location of the Piney Wood 

School is a continual vestigial evidence of a dual school 

system and the location of Piney Wood -- well, it wasn't, I 

mean you don't ignore, don't ignore the race of people, it's a 

fact, and that particular concentration happened to be all 

black, and the decision to locate the school there was made 

without reference to the race, it was the fact that the children 

were there and the school board, for example —

THE COURT: Let me see, Mr. Witt, if I understan<

your argument. Have you not conceded that the racial compositio 

of your faculty is the result of past school board action?

MR. WITT: Yes, both what it is and what we've

changed.
THE COURT: And have you not conceded that the 

racial composition of your school board today is a result of 

the fact that at one time your faculties were a hundred percent

R I C H A R D  S M ITH. O F F I C I A L  C O U R T  R E P O R T E R
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segregated?

THE COURT: Do you have any defense then to the

contention that you have not abolished the results of your 

previous policy of one hundred percent segregation?

MR. WITT: Yes.

THE COURT: Nov; that's your faculty problem.

Let's look at your school problem. Do you not 

concede, as I understand it from your argument, that Riverside, 

for example, is one hundred percent segregated today as a 

result of board action?

MR. WITT: No.

THE COURT: I understood you earlier to say,

did you concede it?

MR. WITT: No.

THE COURT: Well, let me go over that with you

again. As I understand from the evidence in this case, it's 

undisputed that in May of 1963, Riverside was one hundred 

percent white. In September of 1963, Riverside was one 

hundred percent black.

Now, I understood you to concede that that was 

as a result of board action.

MR. WITT: Yes.

THE COURT: And Riverside today is still one

MR. WITT: Yes.

hundred percent black, do you want to change your argument and

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say that that is not the result —

MR. WITT: Not completely the result of board
action, no.

THE COURT: Well, it's not a question of complet

the result, it's a question of whether it's the result.
MR. WITT: If the high school students in the

town wanted to desegregate Riverside, that's not a board 
action, it's —

THE COURT: Is it up to the students to follow

the mandate, is it talking about students or school boards, 

are you going to pass it on to the students the responsibility 

of doing what the Supreme Court says the board should do?

MR. WITT: I don't see it that way.

THE COURT: Well, how do you see it, who does

have the responsibility? I thought you just said it was up 
to the students.

MR. WITT: I said they could do it if they
wanted to.

THE COURT: Who does the Supreme Court say must
do it?

MR. WITT: It says that —  now, it says that

school boards must do it and it can recognize race in the 
process.

THE COURT: What is your defense then to that
phase of this lawsuit?

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MR. WITT: The defen.se v'ould be that -- and the

only defense, that there is, is that there are educational 

reasons for having this freedom of choice, that there is no 
compulsion —

^HE COURT: Do you say freedom of choice has

been effective in desegregating Chattanooga High School?

MR. WITT: IJo. (

THE COURT: What about the Holmes case where the
said it hadn't been effective and could not be followed?

MR. WITT: Well, in the Holmes case, it was

still a question of means that the school board could use to _

THE COURx: Well, let me read this language
and see how you interpret this language.

I mean Green, I meant Green, not the Holmes 

case, but the Green case. That's Green versus the Board of 

Education, how do you interpret this language from that 

decision of the United States Supreme Court. "Freedom of 

choice is not a sacred talisman, it's only a means to a 

constitutionally required end, it's only the system of 

segregation and its effects, if the means prove effective, 

it s acceptable, but if it fails to undo segregation, other 

means must be used to achieve this end."

How do you interpret that language?

MR. WITT: It depends upon your understanding

and my understanding of what the original constitutional right

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of Biown 1 and 2  is --

says, this is a Supreme Court decision, the same as Brown 1 

and 2 .

MR. WITT: Yes.

THE COURT: Interpret for me specific language

from a Supreme Court decision which says that if the means 

prove effective it's acceptable, but if it fails to undo 

segregation, other means must be used to achieve this end.

How do you interpret that?

MR. WITT: Well, if the effectiveness -- if it's

assumed that what the Court means there is that if the racial 

composition of the schools aren't black and white to a 

substantial degree, then it's the responsibility of the 

school board to see that that happens --

THE COURT: Do you say freedom of choice has

been effective in eliminating segregation at Riverside?

MR. WITT: It's been -- it's been effective, it

has not been effective in increasing the number of whites.

THE COURT: It hasn't got one.

MR. WITT: But this is not a responsibility of

the school board, as I see it.

THE COURT: Whose responsibility is it, is it

the students?

MR. WITT: Well, I don't know whose it is, but

T H E  COURT: R e g a r d l e s s  of what Brown 1 and 2

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1603-

I don't think making the decisions based on race —

37

THE COURT: Did not the school board make a

decision based on race in 1963 when it made Riverside one 

hundred percent black?

MR. WITT: Yes.

THE COURT: Have they ever done anything to do

away with that?
MR. WITT: There's no restrictions, yes, they

removed the restrictions.

THE COURT: What have they done?

MR. WITT: They removed the restrictions.

THE COURT: What have they done to eliminate

the one hundred percent blacks? They created that situation 

in 1963 at Riverside.
MR. WITT: If you're speaking of what they woulc

do —
THE COURT: Have they not, you say they have

made it open, freedom of choice is there, they said the student 

could segregate if they wanted to, do you interpret that as 

complying with the mandate of the Supreme Court to the Board 

of Education?

MR. WITT: Yes.
THE COURT: In other words, all the Board of

EDucation has to do is just tell the students and the parents 

and the faculty if they want to desegregate, they can, do you



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interpret that --

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THE COURT: No, let's talk about all three,

if you want to, I assume their obligation is the same, isn't 

it? Whether you're talking about the students or teachers?

MR. WITT: I don't think so. Perhaps they are,

but I don't think so.

MR. WITT: With regard to students.

THE COURT: Don't think sc what?

MR. WITT: That the student situation and

teacher situation is the same or in the same category.

THE COURT: Let's take them separately then.

The student category, do you say the only obligation they have 

is to tell the students that if they want to desegregate, they 

can?

MR. WITT: Until Swann, yes.

THE COURT: Well, then, why did you —  why did

you in 1962 change your system? Why didn't you just announce 

in 1962, well, anybody that wants to can desegregate, but we're 

not going to do anything?

that question.

MR. WITT: I don't think I know the answer to

THE COURT: Well, I don't believe I do either,

Mr. Witt.

Well, if we come back to this language again 

in Green versus School Board —

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1693- 3 9

is, Your Honor?

THE COURT: Yes, I'm reading from —  well, I'm

reading from the Lawrence Edition, headnotes numbers 14 and 15, 

it s about the last page of this opinion. You see the paragrap 

that begins with the words, "Freedom of choice," on the last -- 

on the second to the last page, "Freedom of choice is not 

a sacred talisman, it's only a means of reaching a con­

stitutionally required end. The obligation of the system 

has —  if the means prove effective, it's acceptable, but 

if it fails to undo segregation, other means must be used to 
achieve this end"?

MR. WITT: Your Honor, if in that —  where

this continues, the school officials have the continuing 

duty to take whatever action may be necessary, if in the 

concept of that language, the Court meant to say that the 

recognition of race coupled with some form of compulsion, 

with some other requirement, then we have no defense.

THE COURT: Well, how am I to interpret that

language other than what it says? Is there any question about 

that, what it says there at all?

MR. WITT: It all goes back, may it please the

Court, to the concept of decisions based upon race, and if 

thatvas the constitutional requirement, if that's what they 

meant, we have no defense at that time.

MR. WITT: Will you mind indicating where that

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there, you say cannot make any decision based upon race, then

why did the school system not remain in exactly the same 

situation that it was in from 1900 to .1962? Didn't you make 

some decisions in 1962 that were based unon race?

MR. WITT: Yen.

THE COURT: Well, where do you get this argument

then that you're prohibited from making decisions based upon 

race?

MR. WITT: Because that was the language of the

plaintiff's request for relief and that was also —

THE COURT: Are we really concerned with the

language of the plaintiff or the language of the United States 

Supreme Court?

MR. WITT: But the plaintiff at the time request

relief in that nature and this relief and the orders were 

described --

THE COURT: Regardless of what relief they

had requested, they would have been entitled to no relief 

except what the law provided. We're really concerned with what 

the law provides and not what the plaintiff requested.

MR. WITT: Yes.

THE COURT: Didn't the law require that you

abolish segregation in the secondary schools?

MR. WITT: No.

THE COURT: Well, let's take your proposition

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Brown didn't abolish segregated education?

MR. WITT: Yes, but only —  it requires you not 

to make decisions based upon race.

THE COURT: Is it your interpretation of that

language that you must leave things exactly in the situation 

they were in in 1954 when Brown was decided?

MR. WITT: No.

THE COURT: How are you going to make any

changes unless you consider race?

MR. WITT: Substantial changes have been made

voluntarily.

THE COURT: Is that y^ur interpretation, that

left to voluntary action by who?

MR. WITT: Well, the school board has limitation

upon —  legal limitations upon the affirmative actions which 

it can take. At least, it's understanding and this is the 

position that the justice took, Justice Black, and seems like 

to me —  at least that's the way I understood it until Swann. 

You were prohibited from making decisions solely on the basis 

of race.

THE COURT: This case is being tried after

Swann, let's get down to after Swann then instead of pre-Swann 

You say you have a defense after Swann?

MR. WITT: After Swann, if there's any remaining

1 6 < n -  4 1

THE COURT: Is it your interpretation that

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evidence of a dual school system in this school system and if 

it is - - i f  the school board caused it, then they're supposed 

to take whatever steps they can to remove it.

THE COURT: All right, what do you say then

about Riverside? Do you say you do or do not have any
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obligation there?

MR. WITT: You have an obligation to —

THE COURT: What?

MR. WITT: I guess the best situation is to

see that it's no longer racially identifiable. I don't think 

you can do it.
THE COURT: Is it or not now racially identifiab

MR. WITT: Yes.

THE COURT: What is your defense?

MR. WITT: Since Swann?

THE COURT: Yes.

MR. WITT: The only possible defense would

possibly be that —  and it really wouldn't be a defense, 

with regard to Riverside, is that the school board with regard

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to Riverside has been neutral and that this is no longer a

problem for the school board.
THE COURT: Do I understand you to say that

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you have no defense?
MR. WITT: As of right now to Riverside?

THE COURT: Yes.

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le?

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MK. WITT: As o f  this date, no, I don't think

THE COURT: What about Howard, do you have any

defense to Howard?

MR. WITT: Same situation.

THE COURT: You have no defense to Howard?

MR. WITT: Except to the extent that it's --

it's that way because the board hasn't taken affirmative 

action, but the options that were available to the board, I 

think we would have to examine what the options were that 

were available to the board now after Swann.

THE COURT: Well, that would be irrelevant, of

course, in devising a plan, the question before the Court 

today is not the plan of desegregation, the question before 

the Court today is whether or not the school board has fulfills 

its obligation under the law. As I understand you to say, 

you admit that the school board has not fulfilled this?

MR. WITT: With this one exception and we jumped

over to this, and it was the basis of the motion for summary 

judgment, if the language in Swann that refers to school boards 

being in default is applicable to this school board, then your 

statement would be correct.

THE COURT: Why do you qualify that with that

statement, is there any question but that Swann applies to 

Chattanooga, Tennessee, the same as everywhere else?

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1693- 44

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boards that are in default.
THE COURT: You seem to be arguing in circles.

It seems that you conceded that -  you conceded Riverside was

in violation as a result of school board action, either past

or present.
MR. WITT: I didn't make the exception at the

time -  the default concept had to be skipped over to get to

this point, but in the default aspect, if the school board is
. u_a. rh^rlotte Weis in d6fsnlt in default, in the same sense that Charlotte

the COURT: I don't know what the situation

was in Charlotte, the only thing before the Court was the

evidence in this case.
MR. WITT: That's right.
the COURT: You insist under the evidence in

this case that you have a defense for the situation as it

exists in Riverside?
MR. WITT: We had a defense at one time, we

don't have any defense
THE COURT: Let's talk about today.

MR. WITT: We don’t.
the COURT: Let's talk about Howard, do you have

any defense today to the situation at Howard?

MR. WITT: No.
T H E  C O U R T :  W e l l ,  w h a t  further argument d o  y

MR. WITT: Swann only applies to the school

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1593- 45
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wish to make?

educational leadership is the art of the possible, that as 

Swann indicated, primarily responsibility is on the school 

board and that the school board is responsible to its 

constituency, that it should consider its constituency and 

their wishes and I do not mean to imply that its constituency 

should direct what it can do. I'm merely saying that if the 

people who created the system and who have supported the 

system in the true democratic processes, that this board 

must take into consideration the reaction of the constituency, 

that in this situation, since Swann that —

THE COURT: All right, now, let's look at that

proposition a minute. As I understand it, you're making two 

propositions, we must consider the art of the possible. You 

say that it's not possible to remedy the faculty situation in 

Chattanooga?

MR. WITT: No.

THE COURT: What's the basis of your argument 

about what's possible and not possible?

MR. WITT: The board, if it can meet its

responsibilities, should act in such a way to hopefully 

maintain the support of the people in the system and that 

to the extent possible, if there are judgment decisions to 

bd made, if there's any area of judgment with reference to

MR. WITT: T w o u l d  m a k e  this argument, that

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compliance with the Supreme Court decision, that the initial 

judgment should be made by the board in this context, and the 

board would like to have the opportunity to make this kind 

of a decision.
THE COURT: How long do they wish to have to

make that decision?
MR. WITT: I don’t —  the board has already

considered one step, I think that the board could undertake 

rather quickly --

THE COURT: What does the Supreme Court have

to say about that particular problem?

MR. WITT: There isn’t, with regard to

transportation and freedom of choice, it’s very clear what the 

Court says.
THE COURT: I’m talking about the matter of time,

what about the Alexander versus the Board of Education case, 

in 1969, some two years ago, about when this should be done?

MR. WITT: Immediately.

THE COURT: That was 1969.

MR. WITT: But the point was not clear, even

now in the concept of racial balance, the Supreme Court clearly 

said that it wasn't a constitutional requirement.

THE COURT: All right, let's go back to the

arguments you were making and look further at that. You would 

have to consider what is possible, so I asked you if it was



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1693-47
possible to do anything about the faculty situation. I 
understood you to say it's possible?

MR. WITT: Yes.

THE COURT: Is it possible to do anything about

the situation at Riverside?

MR. WITT: No, I think it's possible to take

certain steps --

THE COURT: Well, let's stick to one thing,

first the question of whether or not it's possible. Is it 

possible to do anything at Howard?

MR. WITT: If you're speaking of possible in

the sense --

THE COURT: You were using the word possible

and impossible, let's put your interpretation on it.

MR. WITT: The board makes a decision, then the

community reacts.

THE COURT: Well, let's get back to the situatic

of whether or not it's possible to do anything in accordance 

with your interpretation of possible. Is it possible to do 

anything at Riverside and Howard?

MR. WITT: To create a substantial —

THE COURT: To follow the mandate of the United 

States Supreme Court.

MR. WITT: It's possible to take steps in that

direction. Now the result, I don't know, because I can't



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predict the results or the reaction of the persons concerned.

THE COURT: All right. How, back to the

question then, what is your defense?

MR. WITT: We would like to have the opportunity

to react to Swann as we understand it, in the light of the 

obligation that Swann places upon this board. We thought 

we have indicated as Your Honor pointed out --

THE COURT: Is that your defense, you just

want time to react? We are trying this lawsuit today and 

have been trying it for the last month or more, is that 

your defense, that you want some further time to react?

MR. WITT: Well, there are certain aspects

of the facts that we would not -- do not think that are the 

result of the school board's action, but evidently this 

position doesn't appear to be very defensive.

THE COURT: Now you're talking about another

matter, I guess you're talking about now identifying just 

exactly what is the result?

MR. WITT: Yes.

THE COURT: Of past school action?

MR. WITT: Yes.

THE COURT: And present school action?

MR. WITT: Yes.

THE COURT: That's another problem.

Anything further?— -—

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1693- 49

THE COURT: Let's take about a 5-minute recess.

(Thereupon, a recess was taken.)

MR. WILLIAMS: If Your Honor please, at the

outset, lest I forget, I should like to call the Court's 

attention to the fact that detailed information as to school 

capacity and other school statistics of individual schools 

can be found in interrogatory number six, in the answer to 

interrogatory number six, filed by the defendants on August 

29, 1969, and that detailed information as to the number of 

racial children being bussed in cars and busses can be 

found in the answer to interrogatory 99 filed April 5, 1971.

At the outset also, if the Court please, with 

all deference to adversary counsel, I should like to suggest 

that in my view, if he had advised his clients as to matters 

of criminal law with the same failure to recognize the 

implications of clear language in the court decisions, I 

think his clients would all be in jail, for it seems to me 

when he makes the argument --

THE COURT: Let's be coy of any personality,

please.

MR. WITT: I think not.

MR. WILLIAMS: Oh, I did not intend that as a

personal statement, if Your Honor please. It was simply a 

way to illustrate that I don't think that the Court can 

accept the statement of counsel that there was nothing in the
i

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1693- 50
law to advise that the school board had any affirmative 

obligation to abolish segregation prior to Swann. Indeed, in 

Cooper versus Ervin, in 358 U. S. 1, in the Little Rock 

case, wherein the question was community hostility and evasion 

of the obligation to desegregate, the Supreme Court pointed 

out that the school board had an affirmative obligation to 

desegregate. I f  that wore not certainly made clear in Green, 

and counsel says that he does not know where Judge Miller 

got the concept of maximizing integration, in Kelley it 

seems clear that that came from Green, wherein the court 

specifically pointed out that if there were alternatives that 

would create more integration, then school board was under 

an obligation to adopt those alternatives.

Certainly, with decisions in Alexander and 

Holmes, with the ability to read the cases, there's no question 

but that the school board, and the competent counsel that it 

had, there was no question but that the school board must 

be held to have been constructively aware of its obligations.

Now, if the Court please, the hearing that 

we've had has been upon an order of this Court in February 

1971, which the Court specified the issues.

Issue number one, are present school zones 

designed to advance the accomplishment of the unitary system 

and there's been a good deal of evidence in the case, and I 

respectfully submit that that evidence requires that that

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1 question be answered in the noqative.

In the first place, 1 he zones are essentially 

the same today as they were, as were those drawn to achieve 

segregation prior to Brown. That's in the testimony of 

Assistant Superintendent Taylor, made evident on April 14th, 

by an in-court comparison of Exhibits 1 and 2, Exhibits 19

• and then counsel —  then the defendants themselves made clear

that -- even clearer by the introduction of a series of
9 maps which were designated Exhibits 31 and 35 and the Court

1 0 can see, if you put the two maps together, had one as an

1] overlayer on the other, virtually the entire school system

] 2 would be yellow.

y.i Now, if the Court please, Kelley -- the Court

u considered that as a primary reason for holding that the

ir> school system had perpetuated segregation, said Judge Miller

](i with the exception of zone lines currently in existence,

17 were drawn prior to the board of education, with the aim of

• maintaining segregation, so though there’s formerly white

1 9 areas in large part, these zone lines continue to serve

2 0 quite well the segregative purposes for which they were

21 originally established.

Then in reference to the argument of the non­

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responsibility of current board, because it did not draw those

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lines, the Court said further on the fact that those —  that

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most of the present zone lines could foster segregation were

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1693 -52
drawn before the establishment of the present school board 

is no defense to the defendants' failure to establish a unitary 

system. The segregative purpose of the lines is obvious and 

amounts to a constitutional violation, just as certainly as 

if defexidant itself had purposefully gerrymandered the zones 

to prevent segregation.

So that if Your Honor please, that's Chattanooga 

too, that's the evidence here and it's clear.

Now, secondly, in reference to that, the 

testimony of the defense witnesses Taylor and Henry and 

Exhibit 3, the statistical data to which Your Honor has 

heard defendants' argument as well as out of the defendants 

plaintiffs' zones, elementary and junior high schools, but 

the location of the schools fostered and reinforced residential 

segregation.

My final point has already been made, and that 

is that the defendants did have a constitutional duty to change 

the zone lines or adopt other alternatives which would abolish 

and maximize segregation.

Now, as to the second issue, if Your Honor 

please, which was, is the zoning in regard to high schools 

affirmatively advancing the accomplishment of a unitary 

system, well all witnesses conceded that the open, so-called 

open or freedom of choice, alleged freedom of choice enrollment 

in the high schools has been and will be in effect to increase

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the high schools' desegregation. Defendants' attempt to 

justify open enrollment is unsupported by the evidence as 

their own witnesses admit, that except for vocational offerings 

at Howard and riverside and that permits comment, additional 

comment, if Your Honor please, because defendants' own 

witnesses admit that the inclusion of the vocational offerings 

tends to some extent to encourage black students to enter 

vocational programs and there's a chicken and the egg, one 

of the defense witnesses said, yes, the reason we offer 

vocational offerings there is because most of those children 

there are not college-bound, and then conceded that the 

offering of courses there tends to discourage students rather 

than encourage them.

Finally on that point, if Your Honor please, 

the testimony of the defendant Dr. Henry, as well as of the 

plaintiffs' witness, Dr. Stoley shows that the only way to 

integrate the high school by zoning, which is not an exceptiona 

measure for the defendants, since they admit they were willing 

to zone Howard and Riverside back in 1963 and continually 

until the schools -- until reaching the end of the desegr#gatic 

plan in 1966, for the purposes of segregation, willing to 

zone integration, there's no reason why they should be willing 

to if they were willing to zone desegregation, there's no 

reason why there would be any exceptional problems, why there 

would be any problems for integration. We respectfully submit,

H I C H A H D  S M I T H  O F F I C I A L  C O U R T  H L P O R T I  R



1693- 54
if Your Honor please, that issue should be, the second issue 
should be likewise answered in the negative.

Now, the third issue is, are the defendants 

meeting their obligations under the law with regard to 

faculty and staff desegregation and that question clearly has 

to be answered no in that counsel has admitted under Your 

Honor's questioning that it must be answered no.

I should like to point out, if Your Honor please, 

with regard to the professed -- the claim of ignorance of the 

law on the part of the board, in regard to professed absence 

of any law to advise them as to what their duties were, that 

there is a decision in the case of Monroe versus City of 
Jackson Board of Education, in the Sixth Circuit, 1967,

380 Fed. 2d, 955, in which it was clearly held that that 

was another case which I was involved as counsel in, which the 

Court clearly held that freedom of choice assignment of 
faculty is not permissible, so that at least for that past 
four years, the school board has been or should have been 

aware through its very competent counsel that the voluntary 

assignment of teachers limited to their acceptance of an 
engagement in order to integrate was not permissible.

Counsel's assertion that counsel seeks to 

assert at some point along the line that maybe there is —

Your Honor asked him whether or not Riverside was integrated, 

the faculty, and he said it was. Well, you only have to look

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169?- 55
at 1 through 3 which shows 37 black teachers and 6 white 

teachers to reach the merity of Dr. Kesler’s suggestion that 

the teacher arrangement just as surely identifies each and 

every school in the system by race as if the words were 

"black" and "white" had been carved over their respective 

facades.

While I’m on that, I would like to mention, 

if Your Honor please, that this is not only true with reference 

to the faculty, but that I would like to call the Court's 

attention to the testimony of Drs. Kesler and Stoley, that 

this is related to student —  to student bodies, that every 

school where it's a predominantly white student body and a 

predominantly white faculty and similarly in regard to the 

assignment of the principals, there's this similar white 

principal with two, three minor exceptions. In two or three 

of those instances, so that I would respectfully submit, if 

Your Honor please, that issue number three is likewise to be 

answered in the negative.

Now, as to issue number four, are student 

transfers being administered in such amounts as to hinder 

the establishment —  that is the only question that I would 

answer in the affirmative. I think the evidence requires 

that that be answered in the affirmative, not because 

evidence reflects any discrimination in the application by 

the defendants of the particular criteria or grounds of



1693- 56
] transfer, but because they have designed a transfer plan which 

contains numerous grounds of transfer, which as was pointed 

K out by Drs. Kesler and Ctoloy, and indeed admitted by some

4 of the defendants on the witness stand, tends to hinder

5 desegregation by making —  in the sense of making it possible

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for children to escape from their zones for substantial 

nuiabers of children to escape from their zones.

THE COURT: Where is there any constitutional

mandate in respect to the transfer provisions as they exist 

in Chattanooga?
MR. WILLIAMS: Well, that's similar to a question

Judge Brown asked me in the Vick case years ago when I was 

arguing freedom of choice should not be allowed. He said, 

where is there any constitutional mandate the children should 

be required to go to any one school or another, and the 

question, Your Honor, has to do with this, whether or not 

the plan which is adopted by the defendants is so constructed 

that it is effective or ineffective in doing that and transfer 

issues have to be considered in that light because transfer 

is a form of freedom of choice, it's a limited form of 

freedom of choice, and the question is really not so much 

as to whether there's a constitutional mandate to have or not 

to have a particular ground of transfer, but whether the 

grounds of transfer by their nature and when taken together 

tend to carry out or to hinder or defer the constitutional

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1-393- 57

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mandate to desegregate the .school system.

THE COURT: Well, I take it that there's no

question but that there may be valid reasons for permitting 

transfers that care totally unrelated to the problem of 

school desegreaation.

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MR. WILLIAMS: Oh, certainly, there may be valid

reasons for transfer, but if the Court please, it may be 

questioned whether such reasons should be allowed in the 

context of the transition of a school system from a segregated 

to an integrated one. The reason for that, if Your Honor 

please, is this, that grounds such as the one —  such as the 

one which permits working mothers to have their children 

go to school in a zone where they place them in a child care 

agency, in a plan which did provide substantial integration, 

that would provide a substantial means of resegregation.

THE COURT: Is it your interpretation of the

constitutional requirements that the fact that a transfer 

provision, which might possibly in some instances permit 

the person to avoid the zoning requirements, that that is 

sufficient reason to render it inoperative, or must it be 

adopted in the manner to accomplish that result?

MR. WILLIAMS: Any transfer provision at all,

which afforded a possibility, a substantial possibility of 

defeating the operation of the plan ouqht to be disapproved 

because here, if the Court please, the obligation is to

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desegregate the system, while these transfers in their present 

context have inasfar as the official records are concerned, 

involve relatively minimal numbers of children, some 400 out 

of twenty-five, twenty-four or twenty-five thousand, Your 

Honor has to only recall Dr. Kesler's testimony in that 

regard, either Dr. Kesler or Dr. Sroley, there had to be much 

reason for transfer because we've had desegregated zones and 

so there hasn't had to be too much transfer, but in a context 

where the schools were actually substantially integrated, 

there might be a great deal more, there might be a great 

deal more tendency on the parents to try to transfer their 

children.

THE COURT: Is there any transfer provision

that might not possibly have some effect? In other words, 

can you conceive of any transfer provision that might not 

be -- might not possibly have some effect upon the racial 

composition of one or the other of the schools?

MR. WILLIAMS: No, and therefore, I would

advocate and would insist in that connection, with the 

transfer aspect of it that Dr. Stoley's interpretation is 

correct, that the only two transfers which can reasonably 

be allowed if the plan is to work is the majority to minority 

and where the parent has actually moved, which is not really 

a transfer, he's moved to one zone or another.

THE COURT: Well, that might have some effect,

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lr>93- 59
though, might it; not change the racial composition by one 

one school and one in another school?

HR. WILLIAMS: That is an inevitable effect,

and that is the reason for the annual revision and supervision 

of the zone lines.

THE COURT: Then does your statement that

the mere possibility that transfer might operate to avoid 

the desegregation, is that a valid contention then?

MR. WILLIAMS: I think that is a valid contentic

in light of the constitutional duty to abolish segregation.

THE COURT: I'm back to the question, can you

conceive of any transfer plan that might not possibly affect 

it?

MR. WILLIAMS: You don't have to come back, I 

answered in the negative at the beginning, no, I cannot cone 

of that.

THE COURT: Is it your contention that there

cannot be any transfer?

MR. WILLIAMS: There should be no transfers

or they should be limited to those transfers which affirmative! 

effectuate integration, like the majority to minority provision 

The other transfer provision that Dr. Stoley suggested is 

really not a transfer, if a child's parents bring him to 

another zone, then that is not a transfer, he may attend the 

school in the zone.

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THE COURT: of course, Dr. Stoley's characterize

tion of the Chattanooga transfer plan as being an administratis 

monstrosity may or may not be accurate, but the Court is 

really not concerned with v/hether or not they have created 

a transfer plan that is an administrative monstrosity or 

whether it's a good plan, the Court's only concerned with wheth 

or not it has some effect.

MR. WILLIAMS: That's just it, and I don't

think the Court can consider that only in a vacuum. There's 

testimony to the effect and the allowance of these large 

numbers of transfers or large numbers of criteria as grounds 

of transfer has a tendency to afford avenues of escape and 

indeed, Dr. Kesler pointed out a suspicious incidence with 

regard to criteria 2-B, I believe it was, in the Exhibit 71, 

criteria.

I would also point out to the Court in this 

regard that the Court did not limit itself to constitutional 

solicitude. With regard to this, the Court has, for instance, 

approved a completion of grade requirement provisions in 

the original plan in this case, which the Constitution says 

nothing about completion of the grade requirement. The 

Supreme Court decision said abolish segregation but notwith­

standing that, the Court approved this as an administrative 

measure, that administrative measure has operated to retain 

segregation in the schools because obviously, since children

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U N I T E D  S T A T E S  D I S T R » C T  COUi ' T



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1693-61
who were attending segregated schools were permitted to remain 

there, the Court now finds and I now find to my surprise from 

the evidence that that was not discontinued in 1966 as was 

assumed by the Court of /appeals, but has been, according t o  

the testimony of Mr. Dean Holden, been continued as a policy 

and indeed has been rather openly and brazenly put into t h e s e  

numerous criteria for the 1970-71 school year.

Obviously, if the Court please, such a provision 

in a desegregation plan, which sought to actively and effective 

integrate the schools would then afford persons who sought to 

circumvent the plan, another six years or more t o  delay the 

effective implementation of the plan. So with regard t o  

the transfers, I'm simply saying to the Court that r e a l l y ,  

there's nothing in the Constitution that says a n y t h i n g  abo ut  

any of this.

THE COURT: Yes, y e s ,  y es  t h e r e  i s ,  th e

Constitution says everyone must be treated e q u a l l y  under t h e  

law.

MR. WILLIAMS: Yes, but it d o e s n ' t  say  a n y th i n g

about teachers, it doesn't say anything about s t u d e n t s  any  

more than it says anything about transfers, the q u e s t i o n  

Your Honor has t o  consider on this transfer s i t u a t i o n  i s  

whether or not the approval in a segregation p l a n  o f  a 

large number of criteria which will operate, a s  has been  

testified about these criteria, and i f  it will o p e r a t e  o r  wheth

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the approval of any transfer provisions at all will effectively 

hinder integration and deny that equal protection of the law, 

that's where the Constitution coines in.

THE COURT: One reason I'm asking these

questions, Mr. Williams, is of course in our previous order 

we indicated that the school board could adopt any transfer 

plan they might proceed to desire in their own discretion, 

provided that it neither in its purpose nor in its administra­

tion it did not hinder or contribute to —  did not hinder 

the desegregation nor contribute to the segregation of the 

schools, what do you sav about that kind of provision, do 

you say that that's not adequate?

MR. WILLIAMS: I said it's not adequate because

it's that provision which invited the transfer we have now.

If Your Honor please, if you consider the amount of 

segregative effect of the zone lines themselves, this is 

a large number of transfers because as Dr. Stoley said, 

they didn't have to do too much transferring because they 

were already permitted to remain segregated for the most 

part by the gradual plan, by the allowance of the provision, 

the so-called grade requirement that a child who was in the 

first grade then would stay in that segregated white school 

for six years.

THE COURT: That may well be true, a large

number of transfers, and that this may create a lot of

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administrative problems ior the schools, that they've taken 

upon themselves, but the evidence does not reflect, does it, 

that the transfers, even though there's been a large number 

of them, have been related to the segregation or desegregation 

problem, they've been related to problems which the board 

wisely or unwisely thought to be a basis.

MR. WILLIAMS: I don't think that's a fair

statement, if Your Honor please, because you would have to 

analyze all those transfers, you would have to take those 

exhibits, which I believe were 98 through something, beginning 

at Exhibit 98, those would have to be taken and analyzed and 

to show the number of those transfers, the relative number 

of transfers that were either from a black school to a white 

school or from a white school to a black school or from an 

integrated school with a large number of blacks to an integrate' 

school, a smaller number of blacks, because we've tried —

THE COURT: You see, my concern, Mr. Williams,

is this, and I think it's apparent, I don't think that the 

board —  that the Court ought to inject itself in the operation 

of the schools any more than is required by law and to see 

that the law is fulfilled and the fact that the Court may 

think that a certain operation or a certain policy of the 

schools is wise on the one hand or unwise on the other hand 

is not a basis for the Court to attempt to instruct the board 

that it should adopt the wise course in the Court's opinion,

1 6 9 3 - 63

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.1 I or abandon the unwise course in the Court's opinion, that's 

2 the problem I find myself confronted with in the matter of 

.‘i transfers.

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MR. WILLIAMS: May I say two things to

disuade Your Honor from applvinq that kind of situation?

In the first place, the Court has to recall 

that it's dealing here with a school board which has demonctra 

over the years opposition to substantial integration in the 

schools.

ted

In the second place, the Court has to bear in

mind that the Court is injecting itself into the school system,I!
it must under the Constitution, to the extent that the school 

board fails to carry out the Constitutional mandates, then 

this Court has to do it and the Supreme Court.

THE COURT: No question about —

MR. WILLIAMS: Your Honor, you have broad

equity powers in the case, I don't mean Your Honor is going to 

actually operate the school system, but it does mean that 

the Court says to the school system that in the process of 

integration of this school system, there will be no transfers 

except for these specific things and the courts all over 

have been doing it. Judge McRae has done it in two, three 

cases down in Fayette County and Monroe County. While he 

has set out —  he has specified his own grounds for transfer,

I think in one case he did allow transfers of school teachers'

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1693-  65

children, transfers of school teachers and that sort of thing, 

but no other transfers, and the reason for this is to ensure 

the effective operation of the plan, which is adopted to 

carry out the Constitution.

So, I respectfully urge upon the Court that 

some general provision like the provision in the old plans 

must be perceived in light of the lack of total -- lack of 

effectiveness of that entire plan and so, I would respectfully 

submit that that's something that should not be adopted and 

that the Court, of course, as Your Honor indicated, I think 

Swann would dictate putting in a majority to minority transfer 

clause, but no other transfers should be permitted, unless 

they're conducive, unless they're effective in integrating 

the system.

Then finally, if the Court please, the 

fifth issue, is the planning, constructing, renovation and 

location of schools being accomplished in such a manner 

as to effectuate an integrated system, and the answer to 

that is clearly no. The defendants built two elementary and 

one high school, Chattanooga High School which opened its 

doors in 1963, if Your Honor please, and of course, it opened 

its course as an all white school. Desegregation had not 

reached the high schools at that time, but the location of 

the Chattanooga High School in an area, suburban area, an 

area of white concentration, the location of the Piney Wood

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1693- 66
School, which opened its doors black and has been all black, 

the location of the Cedar Hills School somewhere in this area, 

Clifton Hills School, somewhere in here, if Your Honor please, 

in an area that is substantially all black. In 1968, the 

Pi.ncy Woods school was built, in 1963 Clifton Hills was 

an old school which burned and instead of seizing upon an 

opportunity to integrate a school and provide some substantial 

integration, in 1968, why then the defendants rebuilt that 

school right in the same location and reopened it, reopened 

in 1969, 17 blacks, 447 whites in 1969, reopened in 1969 with 

18 blacks, 446 whites, so that clearly, if the Court please, 

the policy of the defendants indeed, they concede it, they say 

that we thought the law required us not to make any decisions 

based on race, but as was illustrated during the argument of 

counsel for the school board, they have made decisions based 

on race and the trouble is that the decisions based on race 

were all decisions which tended to perpetuate the segregation.

We respectfully submit that issue number five 

has to be answered, has to be answered in the negative.

Now, if the Court please, with regard to the 

law, if the Court will permit me, I should like to read to the 

Court an order which was entered and is - - it's not very long, 

which was entered by District Judge Stanley A. White in the 

United States District Court for the Northern District of 

California, Johnson versus the City of San Francisco, requiring

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the party to file plans for school desegregation. Seven 

months ago on September 2 2 , 1970, this court decided that 

justice in this case both spawning definitive action until 

the Supreme Court decided six cases then pending before it.

Last week the six decisions were handed down. They were, 

of course, Swann, Davis, each decision was unanimous, while 

the six decisions did relate to Southern States -- for the 

past 17 years every Supreme Court decision on the subject 

has consistently struck down racial segregation in public 

schools, resulting from laws which directly or indirectly 

required or contributed to such segregation. Last week the 

decisions did not go along with prior holdings, and the 

Supreme double standard of the constitutional compliance 

based upon geography. While it was not clear seven months 

ago, it is clear today that the correction in the public 

schools —  bussing can be required and the state law may not 

prohibit it. Number two, racial balance or quotas may be 

judicially imposed. Some students may be permitted to attend 

schools near their homes, other students may be required to 

attend distant schools. A child may not be denied entrance 

to a school because —  particular school because of his race, 

and number five, United States District Courts have 

exceptionally broad equity powers to shape decrees to meet 

the complex problems of protecting the educational opportunitie

Now, under last weeks' Supreme Court decisions,

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1693-  68

the District Coarts possess powers broad enough to correct 

the unlawful segregation which still persists in tho San 

Francisco Elementary Schools. It's now clear that the

Court has both the power and the duty to do so if the school

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authorities fail or refuse. The situation was anticipated 

by this Court some seven months ago —  promptly to meet whateve 

requirements that he delineated once the .Supreme Court has 

laid down the law, no person or agency bound by that law 

or any court can be permitted to delay —  it would appear 

therefore that the defendants would do well promptly to 

take such steps calculated to meet different continuances 

which can be reasonably forecast.

THE COURT: Where is that constitutionally

mandated, Mr. Williams, that last provision you just read, 

may or may not be administratively desirable or educationally 

desirable? Witnesses here have testified that it was 

educationally desirable to have an educational balance.

On the contrary, did not Justice Burger say exactly the 

contrary?

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MR. WILLIAMS: You know, everybody reads the

Swann case, if Your Honor please, and maybe doesn't pay 

enough attention to the other cases that were decided. If 

Your Honor will take a look at the Davis case, Your Honor 

will find that the District Judge, wherein a school system 

like this -- well, it was less offensive than this, it was a

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1593- 69
school system wherein only 64 percent of its bictek children 

were attending, 95 to 100 in this one, 80 percent of the black 

children arc attending, over 90 percent of the black schools 

and 100 percent of the - -  over 90 percent, 96 percent of the 

black high school attending, 99 to 100 in that case, the

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District Court, of course, approved a plan which retained 

nine all black senoois. I thought I had it before me, and the

• Court of Appeals, the Court of Appeals modified it - -  no, 

has been modified by the Court of Appeals, nine elementary

in 

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schools were over 90 percent Negro as of 7-21-70, 64 percent 

of all elementary school pupils in the metropolitan area —

12 now then, the Supreme Court reversed that. If, as Your Honor

]:i seems to imply, there's no requirement for substantial

11 integration for each school, Davis should have stood.

]5 THE COURT: I'm reading from Swann versus

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Board of Education on page 19, the District Judge —  from the

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norm may be unavoidable, this contained information that the

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norm is a fixed, mathematically racial balance, reflecting the

• pupil concentration, and if we were to read the holdirg of

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the District Court to require as a matter of substantive 

constitutional right any particular degree of racial balance

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or mixing, that approach would be disapproved andwe would be 

obliged to reverse —

MR. WILLIAMS: Doesn't the court go on to say

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however that racial identity must be removed from each school,

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in the system?

THE COURT: Well, it says next in the next

sentence, the constitutional command to deseqreqate schools 

does not mean that every school in every community must always 

reflect the racial composition of the school as a whole.

MR. WILLIAMS: 1 interpret that lanquage as

being preliminary to the next sentence or to wherein, if I 

recall correctly, the court points out that there are such 

schools, and a very heavy burden is on the school board to 

show that it's impossible for that to be eliminated. Now 

if the Court please, you know for 17 years, 16 years —

THE COURT: I didn't mean to interrupt your

reading.

MR. WILLIAMS: I've been concerned with the 

strict interpretation of the District Judges, of the 

Supreme Court decisions in this area, its liberal interpretati 

toward the school board and strict interpretation towards the 

plaintiffs. When the school boards have been the people 

violating the Constitution, I think yes, the Supreme Court 

said yes, there is no requirement that this Court say that 

there shall be an exact 49 to 51 percent ratio in every 

I school in Chattanooga, that's not what Judge White or whatever 

his name is is saying in his order, what he's saying is 

justice —  there must be meaningful integration and in order tc 

have that, you have to remove racial identity in each school,

R I C H A R D  S M I T H  O F F I C I A L  C O U R T  R E P O R T !  R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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g o  no longer the courts are not blind, the only way you can 

do that is to have substantially the same composition in each 

school., otherwise you have the total school community, otherwis 

the school will be obviously labeled because of race, and 
this has to be considered also in light of Chief Justice 
Burger's remarks later. Later on that, Judge McMillan's 

acceptance of a racial balance as a starting point was 

certainly within his equitable powers as a District Court to 

remove the constitutional inequality, so my answer to that 

question is, if Your Honor please, that I do not read this 

court's order to say that it has to be exactly the same 
racial, but in order to exercise equitable powers, in order 
to remove racial identity in the schools, that the students 
in each school must be substantially the same racial ratio.

To accomplish this objective, the plans may 
include use of non-discriminatory bussing. It now appears 
to be clear, at least some bussing will be necessary for 
compliance with the law, changing attendance zones to 
heed off racial segregation and assurance that school 
construction programs will not promote racial segregation or 
location of new schools or abandonment. Establishment of 
practices of hiring teachers and administrative people which 
will effectively promote desegregation. Establishment of 
the practices of assignment of teachers and administrators 

which will effectively integrate the staffs in each school.

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U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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Of course*, there's nothing in the Constitution 

that says that either, if Your Honor please, but no court's 

balked about it at all. They buy that easily and they buy it 

because there isn't as much community hostility to that.

THE COURT: As I understand and interpret it,

there's a constitutional requirement, the Constitution does 

provide that everyone be treated equally.

MR. WILLIAMS: Yes, Your Honor.

THE COURT: And regardless of their race,

color, religion or anything else, now the school board 

controls the employment and the assignment of the faculty 

100 percent.

MR. WILLIAMS: Yes, Your IlOnor.

THE COURT: Now, the school board has nothing

to do with whether a child was born white or born black and 

other things with regard to the school body, but in the faculty 

area, obviously the school board has 100 percent control 

and an obligation both in the employment and assignment of 

the faculty.

MR. WILL ITEMS: I wouldn't say that, if Your

Honor please, the school board can't any more control whether 

a teacher is born black or white.

THE COURT: But they can control completely,

can they not, the matter of employment?

MR. WILLIAMS: Sir?

R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  R E P O R T E R

U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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THE COURT: They can control completely, can

they not, the matter of employment, who they employ as teachers, 

and they can control completely the assignment of teachers 

and make certain that the racial discrimination is not 

practiced in the employment and racial discrimination is 

not practiced in the assianment.

MR. WILLIAMS: There isn't any greater hindrance

to their controlling the assignment of pupils.

THE COURT: Well —

MR. WILLIAMS: Not only can they assign teachers,

but they can assign pupils. All I'm saying is that while none 

of these things are mentioned in the Constitution, what we're 

dealing with here is the shaping of equitable remedies to 

bring the school system in compliance with the Constitution 

and the Court should be agreeable to ratios in respect to 

students, not any more than it should be with respect to 

faculties. The courts have generally found it very easy to 

apply the ratios with regard to faculties. I submit the only 

reason they have been reluctant with students is the public 

furor about it.

Now then, if I have establishment of practices 

for the assignment of teachers and administrators which will 

effectively eliminate segregation without reducing the 

competence of the teaching and administration of all schools, 

we have the —  the avoidance of the use of tracking systems

R I C H A R D  S M I T H  O F F I C I A L  C O U R T  R E P O R T L R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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or other educational techniques or innovations, without 

provisions -- without safeguards, as racial segregation is a 

consequence, I'm very concerned with that in Chattanooga 

because of the admission of the superintendent that he is 

considering some of these innovations out at one of the 

schools, which might —  although he denied that this technique 

would cause anyone to be discriminated against, it's been 

found, and if Your Honor will take a look, Your Honor will 

find out that such devices as tracking systems, the vocational 

school at the black school technique, which we see in the 

Chattanooqa area, these devices like that have been used to 

channel black people towards the less desirable occupations 

or to stump them in their development or segregate them, and 

if Your Honor please, in connection with school desegregation, 

it's important to have in the plan some provision against 

that. Judge White, in his decision, Judge White's decree, 

the foregoing delineation is not intended to eliminate the 

scope or the —  he readily spelled out by qualified experts 

in education the intent is obvious that the requirements 

are necessary for compliance with the law. The thrust of all 

this is, the law must be okayed, the public opinion is 

relating to the desegregation of our schools, but this 

disagreement with the law is no justification for action 

and inaction over a long period of years.

If Your Honor please, I thought I would read

R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  RF . P O R T L R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



lo93-75
part of that decree to you ar. a matter of argument., because 
of the fact that it effectively refutes many of the arguments

that were made or attempted to be made here by learned 

adversary counsel with regard to the Court's awareness of 

possible community hostility, the Court must be aware that 

in Brown versus the Board of Education, in Brown 2, the very 

beginning of all of this, that the Court specifically pointed 

out that community hostility cannot be allowed to defeat the 

implementation of the Constitution and its r e q u i r e m e n t s .

The Court reiterated that again in the Monroe 

case, a part of the Green trialogy. A similar argument was 

made there which was attempted evidently here, that whites 

would tend to flee from the school system. In Jackson, they 

brought in experts to testify about this, they brought in the 

superintendent of the Gould School District to testify with 

regard to this in the Jackson case. Again, in that case, the 

Monroe versus Jackson Board of Education, in 1968, the Supreme 

Court reiterated in reference to that particular white flag 

argument, it goes without saying, if I recall the language 

correctly, that these constitutional principles cannot be 

allowed to adhere, so the failure of school boards to comply 

with the constitutional requirements sets a poor example 

for the children in the school system and their respect for 

law.
If the Court please, I would just like to say

R I C H A R D  S M I T H  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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1693 - 76
this, that Your Honor will note that the plaintiff hasn't 

waited in this ease, they've presented a plan and it's a plan 

which effectively will desegregate the school system of 

Chattanooga. It was prepared by an expert, a man who has 

prepared over 50 or fiO plans. A man who we submit, Your Honor, 

might well have called in to assist the Court, and we asked 

that lie be treated and Dr. Hosier be treated as an expert 

advisor to the Court in this case. For after all, all that 

all of us should be doing is attempting to advise the Court 

as to how bast to carry out the duty of all of us to comply 

with the law and the Constitution of the United States.

That's the function of the lawyer, it's the duty of the lawyer 

not to try to misinterpret that law or to try to cause 

delay or to circumvent that law, and there has been a great 

deal of references here on the school board constituency, 

and the school board has a duty to comply with the law and 

lead it constituency. There can be no duty that is paramount 

to the duty of the school board to comply with the Constitution 

of the United States.

So we therefore respectfully request that the 

Court approve the plan which we have submitted through Dr. 

Stoley in order that —  and in connection with that, if Your 

Honor please, there's one item I should like to submit to 

Your Honor, this is a -- something which has been prepared 

by me for purposes of —  I don't think it would be considered

R I C H A R D  S M I T H .  O F F I C I A L  C O U R T  R E P O R T E R
U N I T E D  S T A T E S  D I S T R I C T  C O U R T



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as evidence, but for purposes of getting it into the record,

I would like to file it in some fashion with the Court.

THE COURT: Allow it to be filed as an exhibit

to your argument and as a part of your argument, if you would 

like to do so.

MR. WILLIAMS: I should like to do that.

THE COURT: All right, Exhibit —  what is the

next exhibit number in order?

CLERK FRANKLIN GLASS: Exhibit No. 141, I believ

Your Honor.

THE COURT: Allow it to be treated as a part

of your argument.

(Thereupon, the document referred to abo 
was marked Exhibit No. 141 for identi­
fication .)

MR. WILLIAMS: This Court has already recognized 

in the desegreation plan which it formerly approved in this 

case, the necessity of effective —  the necessity of having 

reported procedures in reference to effective, judicial 

supervision of school desegregation. This form of report 

which I have prepared follows closely some of the HEW guideline 

specifically in reference to the reporting cfteacher dismissals 

and demotions and that sort of thing, and if Your Honor please, 

it's also commensurate with action which was taken by the 

Fifth Circuit in United States versus Hines County School Board 

and by the judge in the Swann case, so we would respectfully

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U N I T E D  S T A T E S  D I S T R I C T  C O U R T



1693- 78
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submit that this desegregation plan provides for the filing 

of reports along the lines suggested in this and we would also -- 

now, if the Court please, if the Court docs not see fit to 

approve immediately the plan which we have submitted, we would 

request that the Court require the defendants to file a plan 

within two weeks, within two weeks the Court may have noted 

that this plan which we presented was prepared in eight working 

days by a busy head of a department at a major university in 

his spare time. There's no reason why the school board 

with all these facilities —  it didn't want to get up the 

pupil locater maps.

THE COURT: Well, it's always easier to do something 

quicker as an individual than a committee. Doesn't the board 

have to act as a committee?

In other words, if you have a responsibility to 

just perform for yourself without any concern with regard to 

anyone else, it's always easier and quicker to do the job 

than if you have to consult with and get the concurrence of 

others, isn't it?

MR. WILLIAMS: Counsel had to consult with

the experts, we had to consult with each other and they had 

to consult with me, too, Your Honor, and if Your Honor please,

I think the Court's last statement overlooks the plan will not 

be prepared by the board, plans are not prepared by boards, 

they're prepared by staffs and they're submitted to the board

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U N I T E O  S T A T E S  D I S T R I C T  C O U R T



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for its approval, .so I don’t think that that principle would 

apply. We would respectfully submit, if Your Honor please, 

that that plan be submitted by the board and should include 

school districts, should include the element that we have 

mentioned, the assignment of teachers, students in the 

same ratios. Now when we say substantially the same ratios, 

we're talking about some allowance for tolerance such as 

Dr. Stoley insisted upon. I don't believe I could get him 

as an educator to do what I would want to do. I wanted him 

to say 49-51 in each school, so what I'm saying is, that the 

plan should provide for that as a starting point, as was 

indicated by —  to be permissible by Judge —  Chief Justice 

Bloyer in Swann.

The plan, if the Court please, should also,

I would respectfully submit, contain the limitation on 

transfers, limiting in amounts, which I have described, and 

in a manner not exceeding that specified by Dr. Stoley.

It should contain the provisions of Exhibit 135 for a similar 

provision which would protect the rights of teachers and 

prohibit discrimination against them and dismissals, demotions 

of black teachers and principals and other staff. It should 

contain a provision prohibiting site selection, which has 

the effect of perpetuating or fostering continuing segregation 

and indeed probably put it on the other side of the coin, 

it should contain a provision affirmatively requiring the

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boards to locate new schools and now school expansions in 

ways that ineaninqfuly inteqrate the schools. It should 

contain a provision for the protection of students in school 

activities and some experts have advised me to call them 

extracurricular activities, but they're actually curricular 

activities, sports, school clubs, cheerleaders and bands, 

majorettes and other school activities. The plan should 

contain provisions in assuring complete integration. The 

reasons have been amply shown wherein Mr. Mapp has testified, 

wherein black students admitted testimony about the failure 

to pay attention to the sensitivities of black children in 

a situation resulting out there last year, it should contain 

a provision for the protection, as I said, the protection 

of black students from school programs like the tracking 

system and locating vocational programs in their schools, but 

not in white schools, in schools close to them, but not in 

schools close to the white neighborhoods.

As I indicated, it should contain provisions 

for the reports and then finally under provisions for teachers, 

requiring the orientation of teachers along with their integrati

Now, if Your Honor please, if the Court allows 

the school board at that time and of course it should contain 

a majority to minority guaranteeing free transportation to any 

student exercising that option and providing no such transfer 

request should be denied on the basis of overcrowding in the

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U N I T E D  S T A T E S  D I S T R I C T  C O U N T



lo93- 81

school, which the student seeks to transfer into in the 
desegregation of the schools, that is the pupils in the

schools, the decree itself should point out that the school 

board should use all available practical methods singly and

in combination, attendance zones, the restructing of grade 

levels as between various schools and the uses for transportatio 

including common carrier and the school bus as a tool in 

effectuating the conversion and with regard to the fixed 

ratios, if Your honor please, I would simply say this, that 

the plan —  that while a fixed ratio of pupils in schools, 

several efforts should be made in designing the plan to 

reach towards the establishment of a system-wide pupil ratio 

in various schools so there will be no schools racially 

different from the others and therefore racially identifiable. 

Subject to the understanding, of course, that variances from 

the system-wide ratios in individual schools will be 

unavoidable and that is satisfactory, so long as there is 

no school with a racial composition disproportionate to the 

system-wide racial composition.

Pupils of all grades will be assigned in a 

way as nearly as practicable at various grade levels and 

various classes in accordance with Dr. Kesler's testimony, 

they shall have about the same proportion of black and 

white students and this is important, if Your Honor please.

As Your Honor will I believe remember, there is information

n

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about this in racial isolation, but there have been efforts 

to resegregate black children by classes, once they were 

gotten into the school, and that has to be dealt with.

Now, if the Court please, we have obtained the 

services of experts whoso assistance I hope has been of 

value to the Court, and to the board of education. We feel 

that the cost of these experts should be assessed against 

the defendants, and we cite the authority of the case of 

Jackson versus the school board of Lynchburg, an April 1970 

case, in which —  I don't have the citation, if Your IJOnor 

please, Civil Action No. 534 in the Western District of 

Virginia, and Dowell versus Board of Education, 244 Fed. Supp. 

971, affirmed 375.

THE COURT: What is the last citation?

MR. WILLIAMS: Dowell versus School Board of

Oklahoma City, Western District of Oklahoma, 1965 case, in 

which the Court utilized --

THE COURT: I didn't catch your citation.

MR. WILLIAMS: All right, sir, it was affirmed

by the Tenth Circuit, 375, and certiorari was denied by the 

Supreme Court in 1967, 387 U. S. 931. In that case, and in 

Swann, indeed, of course, the court after the school board 

had gone long like this without developing a plan, the court 

appointed a team of experts to develop a plan and assessed 

the cost against the defendants. In Jackson versus Lynchburg,

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this is important because in that case the Court if I recall 

correctly did assess the cost of an expert secured by the 

plaintiffs against the defendants. I believe that that was 

the case in which Dr. Stoley mentioned on the stand, he was 

that expert. The court directed the school board to pay him.

He said it took a long time to get paid, Your Honor, but —  

now, the order should include -- the defendants to cooperate 

with any expert designated or appointed by the Court or the 

plaintiff or the plaintiff's experts in connection with this 

entire matter, including but not limited to providing space 

at the headquarters, at their headquarters for any such 

-- in granting access to necessary information, pay his fees 

and expenses, et cetera. If the Court, and all this is 

contingent, if Your Honor please, upon the Court —  I hope 

you will, but it's contingent upon the Court not allowing 

our plan, immediately and requiring the defendants to of course 

a better plan. If the Court does that, then we would ask —

THE COURT: The law is clear, is it not, that

the primary, initial responsibility in this area rests clearly 

upon the Board of Education?

MR. WILLIAMS: Yes.

THE COURT: When they fail or refuse to perform

their duty, then the Court should assert other means.

MR. WILLIAMS: Here, Your Honor, I filed a motic

for further relief in this case in 1968. I filed a motion in



] W -  84
November of 3 96 8 or thereabouts, noth.ing wan done. That was 

alter Croen was in, June of l S G ' J ,  I believe —  folloving 

Alexander versus holn.es in September of 1969, i filed a motion 

for immediate relief in the case. In November of 1969, nothing 
vras done.

If the Court please, I filed a motion for 

summary judgment, I believe last year. The statistics on 

file in this case show both the defendants —  and the Court 

virtually could see that everything has been brought out in 

this evidentiary hearing, yet the defendants have insisted 

on driving the plaintiffs to go through this long evidentiary 

hearing of ten days, to employ experts, to establish what 

war. immediately obvious to anyone who walks and looks at the 

statistics on Riverside High School. It can be hardly said 

that the defendants are in a position to arcue with the Court 

about accepting a plan we have provided, albeit they have a 

responsibility, they have additionally and totally failed to 

carry out -- and even today, to the extent for counsel for 

the school board with all deference, argument, actually 

arguing to the Court that the school board has had no 

knowledge of the requirement that it meaningfully integrate 

schools until Swann. That is incredible. Courts aren't 

blind and the plaintiffs can't go on forever -- the black 

plaintiffs and the black school children can't go on forever 

and carry the burden of school desegregation which is sloughed



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o f f  b y  f i c l i t V )  l b o a r d s  } > < • . » ( .  o r .  n a  i  n  L a  i n i  n q  n o -  ; r e g a  t  j o n  .

I s u b m i  t., ir  t h e  C o u r t  y>] o a  s c , that. t h e  t i m e  

ha.- ,  c o m e  f o r  c o u r t s  to l o s e  s o m e  of t h e . ;r l i b e r a l i t y  t o w a r d s  

r e c a l c i t r a n t  s c h o o l  b o a r d s  a n d  p l a c e  u p o n  t h e m  .s om e  o f  t h e  

s a m e  o b l i g a t i o n s  o f  p e r s o n s  w h o  v i o l  >t o  t h o  c r i m i n a l  l a w s ,  

n o  d o n ' t  c i i v e  t h e m  t i m e  t o  f i n d  o u t  w h a t  —  w e ' v e  n e v e r  said

t h a t  t o  o u r  s c h o o l  b oard .* - ,  a n d  t h e ;  t i m e  h a s  c o m e ,  if Y o nr
H o n o r  p l e a s e ,  hcio w h e r e  w e ' r e  not o v e n  a s k i n g ,  as we s a y ,  

we've g o n e  to the expense, we’ve s e c u r e d  experts which would

p r e p a r e  a p l a n  which can b e  i m p l e m e n t e d  a n  1 I respectfully 

submit to Die Court that the very leant the Court should do 

is say to the defendants, what's wronn with this plan, why 

can't this plan be implemented and steps be taken right now 

to the end that Alexander versus Holmes and Carter versus 

Felicia —  West Felicia and tho other case, the Dowell case 

will be complied with.

So, if Your Honor please, if Your Honor doesn't 

do that, and gives them -- and I think that two weeks is a 

maximum, I say two weeks is a maximum because the Supreme 

Court actually -- actually what we've had here already by 

virtue of this extended hearing and the time allowed for this 

hearing is a loss of what we were entitled to on Alexander 

versus Holmes, because we were entitled to have them 

desegregate this school system immediately in the middle of 

the year. That's what Alexander versus Holmes said. That's

R I C H A R D  S M I T H  OI-FICIAL C O U R T  R E P O R T E R



1 > > f i _f'6

wh o L w a s  d o n e  d o w n  i n  F a y e t t e  C o u n t y  

T h e r e  v ; a a n * t  a n y  h e . i r i i v i  s c h e d u l e d  a :  

h a v e  a  d c s e g r o g a t o d  s c h o o l  s v . - . t o m , t )  

o n  \ ; h y  s h o u i d n  ' t  y o u  q e t  o n  w i t h  t h e  

O f  c o u r s e ,  n e i t h e r  o f  t h o s e  i s  q u i t e

and n o n  rot* County.

to whether or not you 

a* ring was s c h e d u l e r .I

business oi desegregation, 

as ) :*.rg«? ns this o n e ,

b u t  t h a t  w a s  w h y  we c r a v e  t h e  e x p o r t s , s o  t  h e y  w o u l d  n o t  b e

a n y  b a s i s  f o r  a n y  f u r t h e r  d e l a y .

T h e  l e a s t  we w a n t  i s  t i r e  c h i l d r e n  .in t h e  

s c h o o l s  b y  S e p t e m b e r  o f  1 0 / 1 ,  s o  w e  w o u l d  a s 1; t h e  C o u r t  i f  

t h e  C o u r t  a 1 l o w e d  t h e m  a n y  t i r o  t o  s u b m i t  a  p l a n ,  to p r o m p t l y i
schedule a hear inn on that plan and w e cited all the cases 

on that, if Your Honor please, beginning with Alexander and 

then, if Your Honor please, and not finally, there's one more 

thing, after this, but there should bo an order entered based 

on the evidence here. I'm not sure how absolutely necessary 

it is, but the defendants say they're not going to build any 

additional schools, but there should be an injunctive order 

restraining them from any new school construction or abandonmon 

of additional schools, pending completion of these schools 

in this school system, and thereafter requiring the defendants 

to submit any plan for new school construction, addition or 

abandonment to this Court with notice to plaintiffs, requiring 

defendants to hold in abeyance any plan until the Court has

I

t

had an opportunity to consider such objections as plaintiffs 

may have. We cite in support of that the Swann case and

R I C H A R U  S M I  I H O '  I K  I A I  ( O i l H I  * ' l  > * OR I l H 

i ;  N i  n  O  t  ’  A T 6 *i [ ) ! ' ,  i HI C .T  (  O U I H



i s  u case uv» i n

id 

11

11

Vt‘r'"J-; Venr" - « '  i ■ i s t r i • t e" filscn County, which
c I , -’ s r ‘ t o  i - n s h v  i i  t . - ,  ; ; T'( J  . ;>ct ,  V 1 7 ,

F. iH. h C i r c u i t . ,  w! <*ro t h e  hi :  !.!; C i r c u i t  .g c r o w d  sue!)  . . c l i u n

1,1 t h a t  r r n ' , , ' ;1 ,:IK1 B r ' l d L ; V '  s u t ;  S c h o o l  H o a r d  o f  R i c h m o n d ,  

f i n a l  1 v ,  j f  Y o u r  h o n o r  p l e a s e ,  wo r e q u e s t  —  v o n  k n o w ,  w e ' v o  

b e e n  a  l o n g  t i : ; . o  g e t t i n g  a r o u n d  t o  i t ,  b u t .  wo r e q u e s t  t h a t  

t h e  p l . i x n t i ;  f  b e  a l l o w e d  s o r e  a t t o - n e v  f e e s  i n  t h i n  c a s e  

h o c  a. u s e ;  n o t  w i t l i .  - t a n d i n q  t h a t , I  u n d e r s t a n d  t h e y  n a v e  a d v e r s a r y  

c o u n s e l  a  r t d  s o m e  y e a r s  a Mo ,  s o m e  a g e n c y  i n  t h e  C h a t t a n o o g a  

a r e a ,  h i s t o r y  i s  g o i n g  t o  l o o k  b a c k  o n  t l i c  d e f e n d a n t s ,  w h o  

t h e  d e f e n d a n t s '  a t t o r n e y  w a s  a s  b e i n g  t h e  o n l y  o n e  w h o  s e r v e d  

t h e  i n t e r e s t  o f  t h e  c h i l d r e n  i n  t h e ;  C i t y  o f  C h a t t a n o o g a ,  a n d  

i n d e e d ,  t h e  i n t e r e s t  o f  t h i s  s c h o o l  b o a r d .  H i s t o r y  w i l l  l o o k  

b a c k  o n  t h e  m i s e r y  J a m e s  R .  M a p p , t h e  m a n  w h o ' s  p e r s e v e r e d  o v e r

8 7

11.
]Y
It
ID
I ’ll

•31

: !  1

a p e r i o d  o f  e l e v e n  y e a r s ,  a n d  i t  h a s n ' t  b e e n  e a s y ,  h e ' s  n o t  

a  r i c h  m a n ,  h e ' s  a  p o o r  m a n .  H i s t o r y  w i l l  l o o k  b a c k  o n  h i m  

a s  b e i n g  t h e  h e r o  o f  t h i s  m e l o d r a m a  a n d  m a y b e  c o u n s e l  f o r  t h e  

p l a i n t i f f s  w i l l  b e  s a i d  t o  h a v e  p e r f o r m e d  s o m e  s e r v i c e  f o r  t h e  

c o m r , u n i t y  h e r e ,  a n d  1 t h i n k  t h a t  t h e  s c h o o l  b o a r d  o u g h t  t o  

p a y  f o r  i t  a n d  m o r e  a n d  m o r e  o f  t h e s e  c a s e s ,  t h e  c o u r t s  a r e  

a w a r d i n g  a t t o r n e y s '  f e e s .  T h e  j u d g e  a w a r d e d  $ 2 , 5 0 0 ,  f o r  i n s t a n c  

i n  t h i s  W i l s o n  C o u n t y  c a s e ,  a  m u c h  s m a l l e r  c a s e ,  s o  I ' m  

r e s p e c t f u l l y  a s k i n g  t h a t  i n  t h i s  c a s e  I  w o u l d  a s k  t h a t  t h e  

C o u r t  o r d e r  a n  a t t o r n e y  f e e ,  n o t h i n g  l i k e  t h a t ,  b u t  I  t h i n k  

t h e  d e c r e e ,  t h e  c o u r t  o r d e r  i n  t h i s  c a s e ,  n o t  o n l y  t h e  p l a i n t i f f  

c o s t s ,  b u t  a l s o  a t t o r n e y ' s  f e e s  f o r  t h e  p l a i n t i f f .

e

R I C H A R D  S M I T H  O T - F I O A L  C O U R T  R C P O R U R  

U N I T E D  S T A T E S  D I S T R I C T  C O U R T



MR. WILLIAMS: nothing further, Your Honor.

THE COURT: Gentlemen, it's time for the noon

recess. I think there are matters which the Court should 

say about this case, however, I believe it would be 

appropriate that we take the noon recess first, then at 

1:00 o'clock wo will reconvene and the Court will have some 

matters to say at that time. Let's adjourn court until 

1:00 o'clock.

(Thereupon, at 12:05 p.m., court was in 

recess until 1:00 o'clock p.m.)

(Thereupon, after the adjournment for the 

noon recess court was in session. Thereupon, the Court 

from the bench delivered his findings and instructions, which 

have been transcribed and are made a part of the order of the 

Court filed June 23, 1971 and filed as an exhibit to said 

order and made a part of the record in this cause.)

THE COURT: All right, anything further?



1696
introduced, to-wit:

morning for the purpose of further hearings in the case of 
James Jonathan Mapp vs. The Board of Education of the City 
of Chattanooga, Case No. 3564.

There are various motions pending that we should l
consider perhaps first and I will be glad first to have 
counsel indicate very briefly the order which they suggest 
that we take up the various motions.

I will hear from counsel for the plaintiff first, i 
What order do you suggest we take up any matters?

HR. WILLIAMS; May it please the Court. I suggest 
that we take up the motion to intervene on the part of ^
Cook people and then that we than take up my motion to strike 
the document which has been filed in this case by sc—  group 
known as the St. Elmo Neighborhood Advisory \ designated
"Intervening Petition by Parties in Interest", and then we go 
to the matter of the plan and the objections, if there is 
going to be any question about it, in your opinion, in 
advance of any of that, however, I have just been handed a 
motion to quash the subpoena duces tecum and a brief in 
support thereof filed this morning or yesterday by the 
defendants. If there is going to be any question about 
whether they will bring that today I would like to take that 
up in advance of anything.

THE COURT: Gentle— n , we have opened court this I



1697

the defendant as to the order?
HR. WITT: May it please the Court, Mr. Williams'

order with reference to the motion to intervene to take up 
first is agreeable with us. I am not aware of a motion to 
strike the complaint of the intervention of the St. Elmo 
individuals, I have not seen that motion.

We do have the motion to quash the subpoena that 
should be taken up and we would like for the motion with 
reference to the relief of judgment of the order and the 
motion to strike the plaintiff* s objection to the plan be 
considered.

THE COURT: Very well. What do you say as counsel
for the proposed interveners?

MR. MOSELEY: If your Honor please, we will be
very happy to go in any order which appears proper to the
Court.

THE COURT: Ail right. Gentlemen, we will take
Iup first any motion or motions to intervene and the Court 

will hear counsel upon those matters, following that we will 
then take up the matters in regard to the plan, the objections 
to the plans, including ail motions regarding that phase of 
the lawsuit.

How, it will be necessary to set some time limi­
tations in regard to oral argument. How long do you suggest

THE COURT: All right.* What do you suggest for

h N N £



I!

that you have to argue your notion to intervene?
MR. MOSELEY: I would suggest, it your Honor

please, that we night need as natch as 2 0  minutes. I should
it■I
i| like to taka five for the initial outline of the points that 

we raise and then Mr. Jahn would like to address himself to
j ithe constitutional issues and the question raised by a requestii
|j to bring in a third party defendant.

THE COURT: Weil, suppose we take about 15 minutes
on a side on that matter.

MR. MOSELEY: All right.
THE COURT: Very well. The Court will hear

counsel in support of their motion to intervene.
MR. MOSELEY: I have been handed this morning a

'}
memorandum in opposition to this motion but would merely call 
the attention of the Court to the fact that it is net. timely 
filed, it is not filed within the ten days provided by Rule 
12A o f  this court.

Coning to the merits of the motion, while we do 
not propose to file all names, we have some several thousand 
names of persons who have signed petitions seeking to join 
in this intervention. I would address my comments first, 
your Honor, to the matter of the mechanics of inter-I
vention, second to the desirability for intervention, and

I
then Mr. Jahn would propose to address his comments to the
third proposition involving the constitutional concepts thati



It . 1
ij

1699
we have raised and the question of the propriety of bringing 
in a third party defendant.

i| |We seek intervention under the Federal Rules, the
Civil Rules of Procedure, Rule 248 (2), which in substanceII
provides that if parties are so related to a lawsuit that 

ij their rights may be adversely affected by the judgpaent in 
that case they may intervene when they have established that

j
relationship. Now, that is the substance of our position.

The Interveners contend that they are taxpayers||
ij in the City of Chattanooga, that the tax burden involved in
ll carrying out the plan proposed by each of the parties present
!i■: in the present litigation goes far beyond the constitutional
!
ij justifiable burdens.

Second, and I won't go into the details of this 
argument because Mr. Jahn will address himself to it, but it
is a second aspect of the dual school system, which w® contend

i!
is unconstitutional.

'The operation of the county school system under 
the statutes and a city school system under private acts of 
1919 constitute a dual system of different kinds but one 
which has its effect upon it so that is an unconstitutional

| aspect, a s to the reasons for the Court to permit the inter-
1

vention we would respectfully say to the Court that the 
issues now confronting your Honor are for the first time

ij

congealed to the point that our rights are threatened. This

I



1700
is the first time since 1965 that a Board plan or any plan 
has sought alteration, the City of Chattanooga, operating 
under a plan since 1965, that plan, as I understand it. was 
approved by the Court at that time. There have been changes 
in the patterns of housing, there have been changes in a 
number of things in the South that probably result in this 
numerical disparity of shite and black students, but which 
are not caused by State action, which are not caused by Board 
action, and yet we contend and believe that we can establish 
to your Honor's satisfaction that the Board has ignored th*» 
advxce or its counsel, that in same measure it has colluded 
wrth tire parties, the original parties plaintiff in this case, 
to exchange information with them as to what was or what was 
not in the Board filed in the way of a plan, that the Board 
lias decided to take the easy way out in spite of the admoni­
tions in your Honor's opinion that the Board should look to 
the causes of disparity and the circumstances and then take 
the mathematical ratio and do the easy things, like Urban 
Renewal, which certainly is not the responsibility of the 
School Board, and its impact on the population and their 
locations at their schools, highway relocations, the problems 
of annexation conditions that were brought into the city with 
the added territory certainly is not the responsibility of 
the School Board nor of their making universal expansion that 
moved population from substantial areas of the city to other

o n ’ f •« l N N E ^ S f ►



areas, the d ire c tio n  o f housing p ro je c ts , the problems brought 

about by m igra to ry populations when communities once w hite 

moved in  another d ire c tio n  and the black p o p u la tio n  moved in .

There are a number of schools in  the C ity  of 

Chattanooga's p opulation  change in  the la s t  three years th a t 

have been remarkable because of such fa c to rs , t o t a lly  unrelated 

to  anything the S tate  ever d id  o r anything the Board of 

Education could be h e ld  responsible  fo r , and ye t the Board 

has ignored these m atters in  d ra ftin g  the proposal to  your 

donor.

They have picked up a s lid e  ru le  and they have 

e sta b lish e d  where students liv e d  and they have decided they 

are going to  use a mathematical r a t io  and we contend, w ith  

earnestness, th a t i t  is  an u n c o n s titu tio n a l burden upon the 

taxpayers of th is  c i t y  to  bus students u n c o n s titu tio n a lly  

and unnecessarily and th a t the re s u lt  is  going to  be an 

in f e r io r  q u a lity  of education.

The t housands and thousands of d o lla rs  the Board 

poured in to  a schema re la te d  to  nothing more su b sta n tia l than j 

mathema tic a l r a t io  is  going to  re q u ire  m a te ria l equipment, 

time fa r beyond any c o n s titu tio n a l ju s t if ia b le  schedule, and 

we contend th a t your Honor ought to  perm it us to  intervene 

to  lend what we can in  the development of the p la n  as 

ra p id ly  as we can th a t w i l l  take in to  account the c o n s titu ­

tio n a l o b lig a tio n s  to  a l l  these c h ild re n  and the Court should

1701



! i1702
Permit us to assist as wo can in presenting the constitutional 
issues that we believe are 1 og ignored..■ I

MR. JAHNs If the Court please, the Supreme Court
l|

in the recent Swann decision used certain adjectives, reason­
ableness , feasible, workable, effective, realistic as a poor
effort, as they acknowledge, to test whatever plan the Court

jj
i! might ultimately in its wisdom see fit to adopt.

The sole concern of this Court is whether or not 
a plan can be effective. If it cannot be effective it is 
obviously a plan that the Court should not adopt.

It is the position of those who seek to intervene 
here that the existing plan before the Court, even if all of 
the changes to the plan that the plaintiff seeks to have made;!

i,

were made, cannot possibly be effective, cannot possibly be 
workable, and the reason is something we don*t like to talk 

,j about too much but it is perfectly obvious if this plan is 
put into effect, regardless of what the community ought to do 
or how it ought to feel, there will be what the plaintiffs, I
refer to as the white flight to the suburbs and it is as 
clear as looking to any of the other cities around us that 
have had the problem that in a very short time the prababili- | 
ties are that we will have an essentially black system inside

I
the city limits of Chattanooga, and again they will be going 

i to schools where they have a high ratio of black students and 
a minimum r«_tio of white students and under the proof, as I

II

!



1703

understand it that has already been introduced before this 
Court, under these circumstances their cultural aspirations 
cannot be achieved.

I don't have any idea of all of the proof your 
Honor has heard on this point but I have talked to certified 
educators and we would like to have an opportunity, if your 
Honor allows us to, to intervene, to introduce further proof 
in this regard, and I have heard over and over a magic figure 
that if you get above 25 per cent black in the classroom that 
the tendency is to pull the white level of culture down 
instead 01 pulling the black level up, which they openly 
acknowledge to this Court that they seek by this association 
and nobody wants to deny than the right to be pulled up.

A plan that they want that will step the very’ 
tiling that they tell your Honor that they seek to achieve 
cannot possibly be a proper plan.

1
how. we are faced with a situation where we have 

a dual school system in Hamilton County. We have found no 
other case where anyone up to this point has suggested to a 
Court that it must do anything more than analyse a particular 
school system and confine what it does to the boundaries of 
that system and as long as it has it meets the constitutional
test that inside that system everything is *il right but if 
your Honor had been faced in this case with a single system 
in Hamilton County and were presented with the plan that we

I

T f  N N  t  s >  l f



1704

have In this community—

THE COURT: (Interposing) Mr. Jahn, as 1 under­
stand one of the items, if not the principal item of relief 
which you suggest, is that this Court join Hamilton
County School System.

iMR. JAHN: That is right, your Honor.
IWi: COURT: Do you have any authority whatsoever

for this Court to join another school system?
MR. JAHN: No, your Honor, there has not been a

case like this before, as far as I know.
THE COURT: As I understand tho relief you

suggest is that this Court, in effect, by judicial decision 
consolidate the city and the county system, is that the 
relief you seek?

Ml. JAHN: That is exactly right, your Honor.
THE COURT: Do you have any authority that that II

is not a political decision but rather is a judicial decision? 
Is not the consolidation of school systems a political 
decision and oust be made by the »vwau>i p r o channels? j 

MR. JAHN: Let me read your ehat the
Supreme Court said on this point in Swan on Page 570 of the 1

20 Law Edition (2d), "We do not reach in decision
, I

question of whether a showing that school segregation is a 
consequence of other types of State action without any 
discriminatory action by the school authorities is a



1705
constitutional violation, required remedial action by a 
school desegregation decree."

New. the law that we have studied in the short 
time that we have been involved here indicates that even 
though historically you have evolved in a Ai.pl system, as 
we have in Hamilton County, if the constitutional right to 
the equal protection of the law is violated this Court 
clearly under Swan has the power to strike down any State 
action in the form of setting up two school systems that 
stands In the way of the individual citizen receiving 
equal protection of the law.

THE COURT: Do you have any case anywhere in the
United states that has ever held a Court ha* by judicial 
fiat ordered the consolidation of two school systems?

MR. JAHN: No, your Honor, but we are suggesting
that, as they say in this case, you have broad powers to look 
at the situation and very broad powers to deal with the 
situation and if your Honor concludes that the citizen of 
Hamilton County, who also happens to be a citizen of the 
Crty of Chattanooga, is being dealt with in an unequal 
fashion as compared to his counterpart, the citizen of the 
county who happens to be a citizen outside the City of 
Chattanooga then, your Honor has no choice, as 1 see the 
law, but to do the necessary thing to see to it that the 
constitutional rights of both types of citizens of the county



1706
are dealt with In a corresponding fashion, particularly when 
your Honor can see that the system or when your Han^r should 
be able to see that your Honor's hands would be tied and you

i| .have to enforce a plan that cannot work in the long run inside 
the City of Chattanooga to again to what we refer to as white 1 
flight.

We don* t want a plan where there is a ratio out
j

of proportion to the true ratio of the conaunitywide situation. 
The Chattanooga city limits wa insist are entirely artificial, 
they are there.I PUL COURT x Mr• vJdlin, if this Court wou~Lci hdvo 
the authority to consolidate the city and the county systems

Ij

would it have authority to consolidate the city with the 
county system in Walker County, Georgia, for example, could
not Walker County, Georgia, more adjacent to the many parts

;i
j| Chattanooga than is the rest of Hamilton County_

HR. JAHNi (Interposing) The answer to that, as
I!

I understand, is the equal protection clause deals purely
j with what a particular statement does to the citizens of
1

the United States within its borders, therefore, the equal 
i protection clause under which we seek relief cannot and

does not empower your Honor to do what might be ideal, maybe
i!

to have a Tri-State system, find the true cconunity here,
ij
j but you do have to stop at the borders of Tennessee under 

the Constitution.



THE COURTS Do you have authority, do you have 
any case authority to baae that proposition upon?

MR. J/JIN: That you cannot g o  beyond the border
of Tennessee?

THE COURTS Yes.
MR. JAHBs Your Honor, I cannot give it to you 

immediately here on my feet but I do have that authority. I 
will be glad to give it to you in a brief.

THE COURTS Well, if the one system is a violation 
of the Constitution is it your position that different states 
can violate the Constitution but that different counties and
cities cannot, is that your position?ji

MR. JAHH: X think the first question is when
■I the Court uses its equity powers is the logical place to
ji draw the line consistent with the limitation* you have to 

work in. If I an correct in ny analysis of the law you have 
no choice but to stop at the Tennessee border, but beyond
that my viewpoint is that you must first determine what is

ii the true cosnunity line from the standpoint of equity and
ij

once you have done that if you look inside and see that you
i i have an all black system and an all white system it is just 

as forbidden as if you had, for example, countywide
system in Charlotte and Mecklenburg County where they had

1707

the white suburban, typical white suburban situation and 
the black core city situation, and the artificial city limit



14 i7 o a

in between should have no bearing on the correct solution to 
a problem of that type. It is a countywife proposition and 
it is a logical division that doesn't say that every case 
is a countywide situation. Other courts in other situations||! might well divide the county up into different districts.

We have a unique situation here and, as the 
Supreme Court has said, you, as a local judge, are best able 
to tailor the remedy to fit our given situation.

I might point out to your Honor, 1 am sure you 
are already aware of it, we have many sections in the 

|i State Code which indicate the public policy towards the con­
solidation of systems. Over and over I think I found five 
or six different approaches to this solution in the State 
Code.

!|
| THE COURT: Are not all of thoes statutes pro-
Ij posing that those solutions be accomplished by the normal 

political process, that is, by vote of the citixens?
MR. JAHNx No, your Honor. That is the 

interesting thing. There are, I think, two of them that 
require a vote and three or four of them merely require1
action by the governing bodies themselves.

THE COURT: Weil, that still is executive action,
I is it not, it is not judicial action?II li MR. JAHN: That is correct, your Honor, but from

the standpoint here, of course, it's a very simple act once

. * . • '. *• !,»»•* K ' »• W . * t M N t i  n

! » ( s  . . . .  . N , . .  . . . .  -  |

T B I _ *



1709
you determine that a constitutional right has been violated, 
once you determine that, ii you should determine that there 
ia discrimination in the existing situation between the 
county citizen inside the city and the county citizen outside 
the city, then all problems of state laws and past policies 
and so forth must be brushed aside in the exercise of your 
power to see to it that this imbalance is corrected and you 
have that power.

Now, the fact that it has not been done before, 
of course, is the reason that I read this section from the 
Supreme Court decision.

THE COURT: Now, you apeak, of imbalance, what
are you speaking of when you talk about an imbalance?

MR. JAHNx as 1 understand the figures this fall 
you will already have about 55 per cent colored and 45 per 
cent white in the City School System. As I understand it, 
this ratio will become more exaggerated very rapidly due to 
the exodus of the white people to the suburbs, to a haven, 
if you please, in the suburbs.

Your Honor is not concerned directly with it 
but if you look at our other cities in the country, toward 
the problems they are having—

THE COURTi (Interposing) What is your sugges­
tion, is it your suggestion that the Court is concerned under 
the Swann decision with imbalance or are we concerned rather



1710
with eliminating Etate imposed segregation?

Mil. JAHN: I say that you are concerned with any
situation that treats one citizen differently than another 
citizen. I recognize that the decisions under the equal 
protection clause of the Constitution are merely luyriad, 
that you can draw many conclusions from them, that they *1l 
say it's very difficult to draw the line where this applies 
and where it doesn't apply, but we say that your Honor has 
no power whatsoever until you first find a constitutional 
violation, as 1 understand Swann, and 1 think; that is very 
clear.

he say the constitutional violations exist in 
this community in the sense that the citizens of the county 
inside the city are bearing the entire brunt of the social 
upheaval involved in what the Supreme Court is requiring to 
be done for the good of all and that their counterpart out 
in the county is escaping unsealed and the very existence 
of their counterpart out in the county is compounding the 
difficulty of your Honor having acceptable remedies inside 
the city limits because as long as there is this haven to 
flee to, to turn your back, on the core city, to which we are 
all dependent upon for our livelihood and the well being 
of the entire county, you cannot have an acceptable solution 
to the problems that presently beset the City Board of 
Education and we would hope from a proper ruling, as we see



17

it in this case, would be that thia county would became 
unified in a logical conaaunity pattern and that ratio* that 
make sense countywide would be applied here for the benefit

!j of the entire conraunity and its overall relatione with each 
■ other.
i

.

We don't, as Mr. Moseley has asked me to comment 
to your Honor, we don't contend that this Court should order

!|

consolidation. If you strike down this private act of 1919 |
that set up the City of Chattanooga system, or some of these i 
oth^r laws that we have cited in our complaint on behalf of
the interveners that we seek to file here, the inevitable

jj
effect would be that the county does have to take over and 

jj operate the system.
I From our standpoint, your Honor, there is a!|

chance here under what we feel your Honor must do directly 
' to strike a blow to the progress in this community that it j 

hasn't seen in years for the betterment of all citizens of 
both races because of the fact that we say it is very clear 
that the equal protection clause is violated if the present 

1 plant goes through.
i|

How, the fact that it hasn* t been suggested 
before, but, by the same token, it has never been said that

;! you cannot do it and we can find one case in New York State 
where some citizens did complain when the boards of two 
systems got together, one an all white system and one a

1711

N N ■ S t  b



1712
la rg e ly  black. system, and agreed to  an exchange of p u p ils  

between them. C e rta in  c it iz e n s  complained ,h a t th is  was 

u n c o n s titu tio n a l. They had no problem saying i t  is  con­

s t itu t io n a l to  do i t ,  but th a t d o esn 't n e ce ssa rily  solve 

your Honor* s problem here, but i t  is  the o n ly  case we could 

f in d  even rem otely close to  what we are asking your Honor 

to  do.

THE COURT* All r ig h t .

MR. WILLIAMS: May i t  please your Honor, ve ry

fra n k ly  we have mixed emotions about the e ffo rt  on the p a rt 

of the proposed in te rve n e rs  to  cone in to  th is  case. I  might 

say w ith  regard to  the lateness of our t r i a l  memorandum th a t 

the proposed in te rve n e rs  a lso  d id  not coogxly w ith  the C o u rt's  

ru le  in  th a t they d id  not f i l e  a memorandum w ith  th e ir  m otion. 

They subsequently f i le d  one, so we are both ta rd y , and I  beg 

the C o u rt's  pardon and hope th a t the Court w i l l  waive the 

ru le  w ith  regard to  both the in te rve n e rs  and the p la in t if f s  

in  th a t regard.

In  our memorandum, which the C ourt has not 

an o p p o rtu n ity to  see because i t  was ju s t brought w ith  me 

th is  morning, and I  apologise to  the Court fo r  the lateness 

of i t ,  being occasioned by some o ther pressing m atters, but 

we take the p o s itio n  th a t the In te rv e n tio n  should not be 

allow ed. I t  should not be allowed under Rule 24a  because 

the proposed in te rve n e rs have not met the th ree  requirem ents,

• » N  ”4 t  S  S fc f



1713
namely, in te re s t in  the subject m atter, p o s s ib ilit y  of 

impairment of th a t in te re s t, and inadequate p ro te ctio n  of 

the in te re s t by the p a rtie s  to  the prim ary l it ig a t io n .

We say th a t s p e c if ic a lly  they d o n 't meet the 

th ir d  c r it e r ia  because every m a te ria l th in g  th a t they request 

in  th e ir  in te rve n in g  p e tit io n  is  being sought in  the case, 

e ith e r by the defendants o r by the p la in t if f s .

We re fe r the C ourt to  the case over in  

M iddle D is t r ic t  in  which Judge Gray s p e c if ic a lly  held  and 

denied in te rv e n tio n  to  w hite school c h ild re n  and parents 

both under the In te rv e n tio n  of the r ig h t  o f perm issive 

in te rv e n tio n , ho l d in g th a t th e ir  in te re s ts  were being 

adequately represented by the Board and th a t perm issive 

in te rv e n tio n  would o n ly  delay and p re ju d ice  the rig h ts  of 

the o rig in a l p a rtie s  in  the case. The S ix th  C ir c u it  affirm ed 

th a t case and i t  is  in  422 F . (2 d ) 456.

THE COURTj What i3  the c ita tio n ?

MK. WILLIAMS s Hatton v s . The County Board of 
Education of Maury County, 422 F .(2 d ) 457, th a t 's  a 1970 

S ix th  C ir c u it  case. That is  in  lin e  w ith  the general trend 

of the cases, i f  your Honor please, and th a t case, in c i­

d e n ta lly , was, of course, decided a fte r the re v is io n  of the 

ru le .

THE c o u r t s Was th a t a case Judge Gray decided?
MR. WILLIAMS: Yes, s i r .  I f  the Court please,



1714
i f  there were an a lle g a tio n  of fraud on the p a rt of tlu» 

o r ig in a l p a rtie s , the fraud o r c o llu s io n , and a su b sta n tia l 

a lle g a tio n , then th a t m ight ju s t if y  in te rv e n tio n . There ia  

no a lle g a tio n  of fra u d . There ia  an a lle g a tio n  of c o llu s io n , 

which is  unsubstantiated, i t  re lie s  on an a lle g a tio n  th a t we 

made in  our o b je ctio n s on info rm atio n  and b e lie f . R e a lly  we 

were s o rt of gues s in g in  a way th a t there  was sorae other 

plans which must have been considered by the Board.

There is  no a f f id a v it  to  support the accusations 

of c o llu s io n  and 1 doubt th a t c o llu s io n  could  be averred in  

such circum stance* because i f  the Board had considered other 

plans th a t ought to  be a p u b lic  m atter th a t the Board is  not 

a se cre t so cie ty  and c e rta in ly  we c it e  a t th a t page in  th a t 

case we would have a r ig h t  to  know what the Board was con­

s id e rin g . but to  get down to  the g is t  o f the u t t e r ,  i f  your 

Honor please, in  order to  determ ine whether they are being 

adequately represented in  th is  case, we have to  look at what 

they seek, th a t w h ile  they d o n 't a lle g e  they are w h ite , 

there would be 1 n y l ic a tio n s  the p e titio n e rs  are w hite parents 

and c h ild re n  and the th ru s t o f the argument has been th a t, 

to o .

The theory b a s ic a lly  is  th a t the Board plan goes 

too fa r , th a t I t  adopts a mathematical ra t io  th a t places a 

burden on the w hite  parents in  the c it y  because they are 

going to  have to  be in te g ra te d  w h ile  w hite parents in  the

’< . r j  • i p ' ! t  N  t4 t  S  *- f I



21
I

1715
county are not going to have to be integrated.

Even if I an wrung in ray assumption that they 
are white and they are talking about white people, the sane
principle applies if you extend their argument to both white 
and black in the city and the county. What that amounts to, 
if your Honor please, and what it amounts up to is an argument 
against Green and against Swan and against all the Supreme 
Court authority and I say specifically Swan and Davis, which

i say that there oust be an elimination of an actual affirmative 
effort on the part of the Board of Education to disestablish 
the imposed segregation, what they say is that if you do that, 
what they are saying is that if you do that, if you do that 
in Chattanooga then that makes the people in Chattanooga beI
integrated but people in the county not integrated. That is 
all they are saying. “Let ua in so we can call the Court* s
attention to all these factors like Urban Renewal, et cetera.

‘I et cetera, which have already been considered by the Board 
and by the Court." Indeed, the Board, nobody could have 
resisted, in my opinion, I respectfully submit the efforts 
to integrate the system any more then the Board. It started 
out in 1960 talking about it and it was several years before
it was here in court, we were able to get, at least a year

j
or so, anyway, before we were able to get a court orderI

;

requiring them to integrate on a neutral neighborhood school 
basis and we had to coma back in 1965 and nudge again

A I N N t ' . S M



1716
on that basis. We have had notion after motion, so there is 
a history of an effort on the part of the Board to do exactly 
what they seek to do now and that is delay or obstruct
extensive integration.

j
The only thing that they propose that has not 

been proposed, if your Honor please, and it is an interesting 
suggestion, and that is ^hat the county, that the City School 
System be merged with that of the county. That presents a 
difficult situation for us because naturally we also want the 
county system to be integrated and if the county system is 
not integrated, racially integrated in each school, then we 
feel that perhaps the county system ought to be brought in 
too and there is precedent for that, there is precedent for 
that in the case of Sloan vs. Special School District and 
16 Special School Districts and Wilson County Board of

ij !

Education up in the Middle District. Judge Miller did that
|j

in that case back in 1961 when we filed a suit against the
ij ten Special School Districts and then they answered and they 

operated an elementary school system but their students went !j
to the county schools and the Judge said, "Well, this is

jl
related so we better bring in the County School System, too." 

And then they said, "Well, this is anotherj)
special school district down here that is also operating ali • *j single school, a single white elementary school.*

And the Judge said, "Well, we better bring them

I

a  N r - '  G A  ' t  N N F S S t  *•



1717

in, too. and get all the ay at—rw in this county in the m m m  

lawsuit."
Well, that was done by judicial fiat and in an 

October, 1969, Judge Miller did decide that the 16 Special 
School Districts which operated this single school and which 
remained white after an order eight years old had de segregated 
it. Be directed the two school systems to work at a plan 
whereby they would he paired, that school paired with another. 
So there is judicial precedent, if your Honor please, for 
getting the two school «y.te—  In th. i*«nit and
ordering both of them to integrate their systems. There is 
nothing wrong with that, however, X think your Honor is 
correct, it would be a serious question about the authority 
of this Court to judicially by judicial fiat direct a merger 
of the two school systems.

I think moreover, if your Honor please, that the 
petitioners' contention that there is a greater impact on

i

them as taxpayers is one which is precluded by the authorities,
I think that all of the authorities hold that persons— in theI
first place, taxpayers are preeumed— they haven't faired 
well in intervention cases— the Court assumes that the

| Government officials are able to represent all of the tax-
|j payers. Moreover, I cite your Honor on Page 9 of ay brief
I

to a Tennessee case which seems to say that thia was a 
property case where property was placed within a city and

I  . A b l  - -  . < •* « • . W • MH» <  ' • . * • • • * »  . 4  • I N N f  S S f  •1
¥ M A R ' i N r *  ¥ ‘  H H I



1718
taxpayers complained because of the added tax burden and the 
Supreme Court of Tennessee turned down that kind of argument 
on the ground that there was nothing to show that the impact, 
the greater tax impact in the city was not compensated by 
other advantages of living in the city.

So, if your Honor please, I suppose our position 
on that adds up to this; We think probably it is true that 
the County Board of Education ought to be brought in but what 
the proposed interveners seek to do is not to bring them in 
to desegregate the county system but what they seek to do is 
to achieve delay in the implementation of the integration of 
the City School System of Chattanooga by that device and that 
that is not a permissible ground of intervening.

We say they should not be alleged, having applied, 
that they should not be allowed to intervene, even permissible 
intervention should not be allowed, first, because their 
efforts come too late after eleven years and there are 
numerous District Court decisions which I haven't had a 

chance or opportunity to elect, but there's several o f them, 
and in the Middle District, which supports that, and, if 
your Honor please, in connection with this talk, about the 
declaration o f  the constitutional1 ty of this statute o f  the 
statute setting up the Chattanooga School System, and a ls o  

the general statute, which requires a referendum before there 
c o u ld  L>e a merger of school systems, the latter statute is a

i  *« i



1719
State statute of general application and obviously would 
require a three-judge court.

The most recent case I have on that is Fayette 
County Civic and Welfare League vs. Ellington, 309 F. Sup. 09, 
a District Court decision, three-judge decision down in West 
Tennessee involving the State Disorderly Conduct Statute. 
Probably the private act, although it is not every private 
act under the constitutionality of which requites a three- 
judge court, probably that night even require that, which 
would be such wore delay, if your Honor please, and it is 
wall settled that where intervention would unduly delay and 
prejudice the adjudication of the rights of the original 
parties they should not he allowed.

This esse has been projected over a period of 
eleven years and they now propose to bring in additional 
parties, bring in another Board of Education. I suppose 
they would, they very frankly say they want the Court to 
shift gears right now and declare all plans that have been 
proposed out the window and start all over again socue eleven 
years later and I respectfully submit that the Alexander, 
the Dowell and the Carter cases, which are cited in our brief, 
if your Honor please, in which the Supreme Court held that 
the plaintiffs are entitled to plead would not permit inter­
vention for such purposes.

THE COURT: Hr. Witt?

N l 'A • . ' H O



26

i

MR. WITT: May it please the Court, the
defendant Board wants to Maintain a school system that is for 
the children of both the plaintiffs and the children of the 
interveners. We neither urge this intervention or resist it.

THE COURT: All right. Anything further?
MR. JAHH: May we respond briefly to one or two

points, your Honor?
THE COURT: Yes, sir.
MR. JAHH: First of all, on tha question of

whether a three-judge court is necessary or not, the last in 
the series of what we loosely refer to as the Swann decision, 
this is the case of Hr. Robert Lee Moore vs. Charlotte- 
Mecklenburg Board of Education, the law edition, it's at 
590 and 591, the Supreme Court said that additionally, since 
neither party s o u g h t an injunction to restrain a State 
officer from enforcing a State statute alleged to be uncon­
stitutional, 28 U.S.C. Section 2281, this is not an appeal 
from any civil action suit or proceeding required to be 
heard by a District Court of three-judges, 28 U.S.C. Section 
1253, and hence no direct appeal to this Court is available.

I would ass*me since we have not asked for such 
relief, have not researched this point, that it eight not be 
necessary under this decision to have a three—judge court.

The second thing I would like to call your Honor's 
attention to, and I meant to refer to it on direct argument,



1721
is an interesting section of the Tennessee Code, TCA 49-2202, 
that, incidentally, your Honor, was adopted in 1947, long 
before Brown 1, that says that it would appear to have a 
direct bearing on this problem that all pupils within a county; 
shall be provided equal opportunity to attend school with any 
other pupil transported at public expense except as conditions 
of roads or remoteness might prevent.

How, if you read those sections, this, and my 
interpretation of them is not talking about a situation where 
you have county vs. city boarda of education. It is a generalj 
section referring to any citizen in the county, be he a city 
resident or a county resident, and it would appear to me 
there is nothing unconstitutional about that section of the 
code and that whatever is done in this case must be done in 
the light of that section.

I question how your honor could achieve cos^liance 
with this statutory section unless he were to allow this 
intervention and a presentation of the argument that would 
go with it and the proof that suggests it was only possible 
to do this if you have a unitary system for the entire county.

The other thing when he speaks of this being an 
effort to delay, to me this is really an insult to your Honor.J 
Your Honor is in full charge of the speed with which this 
case will move, the steps that will be taken to reach the 
ultimate goal we all seek to achieve.



1722
You have such order or cotnaand that will take 

place. Nobody has the power to delay this case. It is 
entirely within your prerogative, particularly under the 
recent Sixth Circuit decision after Swann, the Goss case, 
for example, says, "This is what we will do in the city this 
fall, and during the rest of the year we will work towards 
a countywide plan."

i•whatever your Honor sees fit to maximize the steps 
in a hurry towards the proper ultimate goals under the 
Constitution.

THE COURTS All right. Weil, gentlemen, I will 
want to— first, Mr. Jahn, do you have the citation to the 
hew York case that you refer to?

MR. JAHN: Yes, your Honor. I can give your
Honor a Xerox of it. Well, I have got the citation. It's 
a 1965 decision at 47 Miscellaneous (2d) 473, at 262 Hew York 
S, whatever that is, supplement or something, (2d).

THE COURT: Two sixty what?
MR. JAHN: 262 New York S (2d) 924, arid I have

a Xerox of that, I will just hand that to your Honor at this 
time. It is referred to, incidentally, in that big annotation! 
in 11 AhR (3d) at Page 801 of the two cases and they both 
deal with that.

THE COURT: Well, gentlemen, I would want to take
this matter under advisement and read the authorities. 1

M  H - f P b i



1723

will make a decision just as promptly as I have an oppor­
tunity to study the various authorities in the case and 
consider the authorities that M y  have been presented.

MR. JAHN: May we have two or three days since
we filed the others?

THE COURTS If you think, you might be able to 
get it in by Monday or Tuesday.

MR. JAHNs Yes. your Honor.
THE COURTS At the latest.
MR. WTI .LIAMS: May it please the Court, may we

have two or three days within which to reply?
THE COURT: Well, if you have anything further

you wish to submit could you not submit it by Monday or 
Tuesday?

MR. WILLIAMSs All right, yes, sir.
THE COURTS All right. Gentlemen, let's turn 

now to the motions that are now pending and the proceedings 
that are now pending in the case at this time.

MR. WILLIAMS! May it please your Honor, did 
your Honor indicate that you were not going to py
dispose of the motion to strike this document?

the COURTS Well, there has been lodged a 
document, which I take it is just for the information of the 
Court and the parties, regarding a particular problem in a 
certain neighborhood and I assume that, first, is there anyone

Wf  P (  H T t  R 1 G  A ’ E N N f S '



1724
here who seeks to represent that party or those parties?

I take it those are matters that were just called 
to the attention of the Court and to the attention of the 
parties for such consideration as the parties might think 
that it would deserve and then for such consideration *->m» 
Court might think it would deserve.

MR. WILLIAMSi Well, they have been filed?
THE COURT* It has not been, it has been lodged.
MR. WILLIAMS* Just been lodged. All right.
THE COURT: Yes.

MR. WILLIAMS: Well. I assumed that it h-ad been
filed since I was furnished a copy of it.

THE COURT: Well, everything that been
lodged or filed I assume has been made available to all 
pa.'ties to this litigation so that everyone is advised.

All right. Let's turn now to the next motion.
What is the next motion we should consider?

MR. WITT: I would consider the next to be the
motion for relief of juc^paent of the order n«tor Rule 60B.

THE COURT: All right. Let's what you have
to say on that, Mr. Witt.

MR. WITT* May it please the Court, this motion 
for relief of order was deemed necessary and appropriate for 
the reasons that have been set forth in the motion and also 
in tiie brief accompanying the motion.

' , u  H ' t H '  - a  *  N  <. 1. '  I N ' . '  t  |

b ^  - N 1 M *  4  ’ N P  V



1725
The Swann caw had been decided only a few days 

prior to the comaoncenent of this hearing* or the reconvening 
of this hearing, and it was sufficiently complex that indi­
cates that none of the parties had sufficient tine to actually 
comprehend its significance to the Chattanooga system and 
with reference to the Goss decision it was not rendered until 
actually after the Court's order of May 19th and after the 
School Board had actually outwitted its plan on June the 16th 
and it is the contention of the defendants that if the Goss 
decision had been available to the Court and to the defendants 
that the progress and manner in which the hearing was con­
ducted would have been substantially different and perhaps 
the conclusion would have been substantially different.

This is the basis of our notion for relief from 
this order and X see no particular reason to repeat the 
arguments and rationale as set forth in the brief.

THE COURT* I have read your brief in that regard.
MR. WITT* Particularly I do not want to take up 

too such time because the matter pressing upon the defendant 
at the moment is what they axe required to do now, between 
now and August 30th.

THE COURT* Very well. I believe, gentlemen, 
that perhaps we would be best advised, as I say, X have your 
briefs on this matter and X will consider them further. 1 
think, however, it would be more appropriate at this particular

Ml A .» a  • • H l . o t ' h  H f  F '  MT f  h  -  - ■ <.;a  I N N (  C c, l  I

*» K • f R f S '  F M A M T I N O  A I F . , H H *



1726
point if we were to proceed with the hearing on the other 
motions.

MR. WILLIAMSi I am agreeable with that, if your 
Honor please. If the Court please, I have not, when I 
received these documents this week I felt so unlike acme 
individual who remarked he was drowned in a sea of paper and 
I have not felt that the motion for relief had sufficient 
merit to merit a reply.

Till; COURTt Well, the Appellate Courts have been 
keeping the printing presses rather busy lately, haven't 
they, Mr. Williams?

MR. WILLIAMS: Yes, sir, but, if your Honor
please, the motion for relief from operation of the order of 
this court seams to proceed upon the theory which has already 
been decided adversely by this Court, namely, that every 
issue in this case except de facto desegregation is res 
judicata and the defendants seek to rely upon the recent 
decision of the Sixth Circuit for that contention and I 
simply say that that decision does have some language which 
indicates that the authors of that decision would have pre­
ferred to have the Supreme Court decide Swann another way.

Obviously when you look at the Kelly decision 
and you look at the Goss decision and you recognize they are 
different panels, if your Honor please, one realizes there 
is a difference of thought on the Sixth Circuit Court of

■ f  n  n  r  n



1727

Appeals with regard to this natter, hut the ultimate arbiter,
I think, is the Supreme Court.

T H E COURT* Well, the judge who wrote the Kelly )
decision sat on the panel that decided the Goss decision.

MR. WILLIAMS* Yes, if your Honor please, hut 
i did not write that decision.

THE COURT: Yes, hut he concurred in it.
MR. WILLIAMS: But the Goss decision, while it

|talked about the District Court having said that the matters 
were res judicata, that decision, nevertheless, remanded that 
case for reconsideration in light of Swann and the Court 
should take note of the language in that decision said
that the Court of Appeals would not presume in advance to

I |try to dictate the District Court's interpretation of Swann.
I Mow, that is the only thing that really determines 

anything in that case. All that the Sixth Circuit did in
i

that case was remand the case to the District Court without
;| »

instructions but left him to make his own interpretation of
i| I

Swann. The Court did use sans language which indicated,
| which seemed to say to the District Judge, "You don't need
[ to worry about any timetable." So in light of that we took 

it to the Supreme Court immediately within five days and
|

the Supreme Court made clear that the Sixth Circuit Court 
was wrong in that regard. If it did not, then its language, 
when it directed the District Court to proceed forthwith, was

* *  1 t « • N l  ► M A N T ! N O a n



1727
Appeals with regard to this Matter, hut the ultimate arbiter,
1 think, is the Supreme Court*

THE COURT I Well. the judge who wrote the Kelly 
decision sat on the panel that decided the Goes decision.

MR. WILLIAMS: Yes, if your Honor please, taut
did not write that decision*

THE COURT: Yes, hut he concurred in it.' '
MR. WILLIAMS: But the Goes decision, while it

talked about the District Court haring said that the natters 
were res judicata, that decision, nevertheless, remendeil that

i

case for reconslderation in light of Swann and the Court 
should take note of the language in that decision which said 
that the Court of Appeals would not presume in advance to 
try to dictate the District Court's interpretation of Swann.

Now, that is the only thing that really determines 
anything in that case. All that the Sixth Circuit did in 
that case was re uiiii the caee to the District Court without 
instructions but left him to make his own interpretation of 
Swann. The Court did use some language which indicated, 
which seemed to aay to the District Judge, "You don't need 
to worry about any timetable.” So in light of that we took 
it to the Supreme Court lanadiately within five days and 
the Supreme Court mads clear that the Sixth Circuit Court 
was wrong in that regard* If it did not, then its language, 
wher it directed the District Court to proceed forthwith, was

. A d , . *  '  A ’ f • H . -  : v. i . O U K  f W E P O N T  E R f e  w a i t ,  , T E N N E S S E E

P E ^ E R E N f E  M J V W r i N D A i F  n  r » e F



1728

laeaninglese and I don't thin* the Supr—we Coart can be M i d  
to use meaningless language. People say not like its language 
very much but w  don't usually just describe that factually 
to the Supreme Court language and its orders and its opinions, 
and 1 furnished your Honor s telephonies! 1 y received copy of 
that and since that I have received an official court copy.

THE COURT: The Court has received an official
copy of the Supreme Court order in that case.

MR. WILLIAMS: So the Sixth Circuit opinion suet
be read not only in light of what the sixth Circuit actually 
did, namely, to rrmanri the case to the District Court with 
instructions to reconsider in light of Swann, but it suet 
also be read in the light of the Supr new Court's explicit 
rejection of the Sixth Circuit language, which seemed to M y  
to the District Court, “Take your time. ”

THE COURTS Well, gentlemen, X want to give you 
full opportunity, of course, to argue any legal proposition 
that you think appropriately should be argued. We are 
possibly confronted with some practical prahin—  here. The 
hearing date, of oottree, was set on this date as being the 
first date that was available to plaintiffs* counsel.
Defense counsel has likewise advised the Court that you have 
caraaitments, as X understand, on Monday, is that right, Mr. 
Witt?

IlR. WITT: Yes, your Honor.

H t u n  a  . * - f v  H - M T H  O O R T  R E P O R T E R S  f m * 1 U N O O G *  1 E N N E S M  E 

R i - »  ► P E N C E  M A H T I N O A l  f .  H ' J H B h :



1729

11

THE comer* &o that 1 would hope tiut we w oald 
move along with the evidentiary Matters a* such a* we can 
and if there axe still legal problems which need to be argued 
and considered, if it becomes necessary to do so, those, of 
course, could be done by brief but, as 1  say, I want you to 
have an opportunity to argue your legal propositions as fully

as you wish to do so.
All right. Your next notion?
HR. WITT* If your Honor please, I mppoae the 

)rarvMr>r> to strike the sttbpoftMi duces tecum, *d*icfa notion was 
filed yesterday, that perhaps is the next notion to be con­
sidered.

THE corner* Very well.
MOSELEY: Excuse Be. Before you take that up,

to avoid any implication of delay, nay Mr. Jahn and I be 
excused so we can start an our brief 7

THE COURT* Yes, if you wish to. You are welcome
to remain or welcome to be excused.

MR. MOSELEY* I t M 1** it would be wore useful to 
the Court if we could do that because we are not in any way 
involved in these natters.

THE COURT* Very well.
MR. WITT* May it please the Court—
THE COURT* (Interposing) Let ne just make these 

brief remarks before counsel leave. I suppose all of us feel

F» *  - i i j W ’  K f P  ' R U h s  .

H M  £ R ( N  i v t A R T l N O i ,  f  M u t t e p

k N O  ( •' ■. » T E N N E S S E E



1730

at times that our responsibilities are rather difficult and 
we are not always truly appreciative of the difficulties of 
others, certainly counsel in a c a m  of this nature have 
their problems and have their difficulties, the sans as the 
Court, and it is, of course, very Important that 
matters that we have discussed, since they are no vitally 
icqportaat to everyone in this community, that they he made 
known as widely as possible and for that reason the Court 
is deeply appreciative, of course, of the public news Media 
and what they do to create a public wiwUnSA^iBj of what 
goes on in this hind of a rnee

hew, of course, the news media has its profolests, 
too, and they have their difficulties, the sane as we do, 
and sometimes they reflect in their coverage and their 
reporting a somewhat different interpretation or different 
emphasis than that which each of us may have thought that 
we were giving at the time that we gave it. That certainly 
is true and I am always larerl at problems that the news 
media may have in the matter of writing news and particularly 
writing leads and writing headlines, they seek to compress 
in a matter of threa to six words everything that was said 
or done in a matter of 300 pagas of testimony.

At the very earliest stages o f this proceeding 
the news media interpreted the interrogation of counsel by 
the Court in this case as being, 1 believe the word used was

M > ! '  ■» '  a  S M  ’  M C O O R f » » t P O R l f c . W i >  C M  A '■» A N O O v ,  A T E N N E S :  t t .

H E >  E H E N ^ f  M A W T i M O A c F  M U H B E L l



1711

"doubting counsel". The Court would never have thought of 
that implication or of that interpretation.

It ia necessary always, of course, for the Court 
to attempt by all means to understand just exactly the
p e e  i t  i o n  of counsel is and what counsel’s interpretation of 
the law may be in deciding every lawsuit. The Court must 
make a decision and must choose between the taken
by the respective counsel, so in interrogating counsel It la 
not, and I am certain no lawyer would so interpret it, 
certainly no court would so interpret it. as any reflection 
upon or any doubting of counsel.

I just wanted to clear that up in the early 
stages of the proceedings this morning and in connection 
with any further proceedings in fehu case.

The Court, of course, must, in order to perform 
its function, attempt to understand all counsel to do 
that must from tine to time ask questions of counsel yry* 
interrogate counsel end that certainly is not intended as 
any reflection. I just wanted to say that, Mr. Witt, that 
in our previous proceedings and in any questions the Court 
may have asked of you, as you know, there was no such 
intention. The Court has the very highest regard for ail 
counsel in this case, it certainly has the very highest 
personal and professional regard for Mr. Witt. It retains 
that and I think it and nothing that has occurred in this

■ * " “  *  A ' ‘ f* : i  M i » H . C O U M ’  K f P O M T E W S  C M A • r A N O  • j <Z A K N N i S & E f c

R E »  £ H I N  M A N T l N O » i  F  H U W H U i



1732

case would in any way be cause for the Court having anything 
but the highest regard for Mr. Witt and for other ^ i n pel in 
the case.

I just wanted to clear that up before counsel 
left for the interveners.

(Thereupon, Mr. Moseley and Mr. Jaha left the
courtroom.)

THE COURT: All right. Are we prepared to proceedT
MR. WITOs with reference to the motion to quash 

the subpoena duces tecum, whan Dr. Henry returned 
Wednesday night at eight o'clock he received the subpoena, 
it was there waiting for him, and by its very language it 
places a tremendous responsehi H  ty and a burden upon Dr.
Henry and the school system and we there is no good
cause for this.

The issue before the Court at the time is a pi 
which the Chattanooga Board of Bckicatlon, in an attaapt to 
discharge its responsibility, has structured to best of 
its ability, attempting to follow the instructions of the 
Court and the plan for the Board to Itself
its official action, the plan as submitted is the 
of its judgment, it represents a plan that is submitted 
without a dissenting vote, and that is the plan that is 
before the Court and not how it was arrived at and we see no 
good cause and we require the plaintiffs to show good cause

S M i T H  n u f c  R E P O H T E R S  C H A ' k N O O O A  T E N N E S S E E

*» E  »' fe *  F  N • 1 M A R T ' N O A l  E  «  U  H 6  f  .



I

why the burden of thin subpoena should be placed upon Dr. 
Henry at this particular time.

THE COURTS All right.
MR. WILLIAMS* The subpoena sinply seeks to have 

the superintendent to haring for consideration and use of 
counsel in cross exainination all alternative plans 
were considered by the Board of Education, together with any 
basis or supporting data for such plans.

It seam to me that the relevancy of that imterl al 
and data to the issue at hand is so self-evident as not to 
he subject to reasonable or tenable argument. Obviously 
the Court, if the Court is hound to accept the plan the
Board adopted, then there is no reason for the hearing, if 
the Court is not bound to aocapt it then the Court has the 
right, for the benefit of crons by the p i * *

in regard to that plan, and if that cross examination is to 
be complete, then counsel are entitled to the benefit of 
the alternative plan Witch the Board may have considered.

If your Honor please, it items so obvious to as 
and in most cases, in many cases we have had Boards of 
Education cone forward and boring alternative pi ans
and tell the Court. •Well, we considered this. The reason 
why we did not adopt this was wa considered that hut we 
decided not to adopt that because of «r>v*w particular 
features and we finally settled upon the one that we have

1733

U F . l  E R E N  F f  h u k h k i



1734

presented to your Honor for these reason*.
What counsel is saying to the Court is that the

Board of iiducatdcn has the right to operate as sc**- 
secret society which will go beck in its conference rocas 
and produce or letch e p i -  which «*•* wcnld * — *■ to « “  

Court and s a y  nobody ha* a right to qv— tioo thi*. Bdhndy 

has any right to knee whether —  had anything better that we 

could have brought or anything here feasible that we could 

have brought onto
I just don't know of any basis that would — title

the Board to that. They haven't said it i— 't feasible to

bring it out because obvi— ly t h -  would be - — hie. U

your Honor please, to say that.
All they said is. -We don't think the plaintiffs

are entitled to know what we considered, w. don't think the
j -l j . Wn_. we * And 1 don* tCourt is entitled to know ldiat va

believe that is correct*
the couar, well, g-tl— n. «  X under-«»d the 

law in thi. case. I certainly can -and to bo corrected, hit 
i at any rate, this is -y un— ding at this tine. -  I 
| understand the 1 -  in this c w  the is—  is ■** *

better pi—  or a worse pi—  could have been devised using 
the terns of -better- and 'worse' in their ge-ral a«r-. 
this is a political decision to be nade by the duly elec—  
authorities as to whether this pi- is a better pi- -  .

a C O U R *  P H ' O R U H ^

e r r E v E N C C  - i u B U F i

* i t * N O O O *  U N N E S S t l



I

worse plan depending upon hcm  one might interpret those words 
"better" and "worse".

This Court is not here to suggest that this might 
be better or that might be worse. The sole function of the 
Court in this case, and the only issue before the Court in 
this case, is whether or not a plan has been adopted b y  the 
School Board that removes all State imposed or straight State 
created segregation. To go beyond that it seems to the 
Court would be to go beyond the proper and lawful function 
of this Court.

Now. 1 realize that many people desire and prefer 
when they wish to have something themselves that they think, 
is better, when they desire and prefer that the Court then 
just move forward and bring judicial flat, establish that 
which they believe to be the better but, on the other hand, 
when they are confronted with something which they consider 
themselves to be worse than their preference is, of course, 
that the Courts remain out of that controversy and leave 
that matter to be reeolved by the normal political processes, 
b y  the voting process and by the decision of the elected 
officials.

As 1 say, the function of this Court, as 1 
understand the law, is simply to determine whether all State 
imposed or State created segregation has been eliminated.
If not, then, of course, under the law it must be eliminated.

f > o  a a  1 i •« . o u M f P O R T t H -  •: m a  : r a n  > . a i e n n e s s m

1735

F N M AH *>*•<<« A : t « ] H f l > .



1736
If it has been eliminated then any plan which goes beyond
that la a matter that addresses itself to the discretion or

ij
'! the sound judgment of the School Board or the public authori­

ties. It would not be within the prerogative of this Court 
Ij to order or direct that the School Board adopt a particular 

plan merely because the Court might have some preference or 
might feel that that plan was a better plan or that the 
Court reject the plan because they feel that that plan is

!
worse than some other plan. The question is one of coneti- 

j tutionality that this Court should not inject itself into 
tlie decision of public bodies beyond the requirement that

: they abide by the Constitution, as that Constitution has been
I interpreted by the Supreme Court.
!

At the present time I am going to sustain the 
•! motion but I am going to reserve a decision upon this matter
|j until the proof develops in the case and we see whether there
jj

is any further basis for it.
HR. WILLIAMS: May it please your Honor, may I

make just one additional statement with regard to that?;j THE COURT: Yes.
MR. WILLIAMS: I would like to call your Honor's

attention to the language of Mr. Chief Justice Burger in the 
Davis case wherein he said that having once found the

ij j

violation the District Judge or school authority should make 
every effort to achieve the greatest possible degree of

» r  • N * , Nl



1737

actual desegregation, taxing into account the practicalities 

of tire situation.
Now, it seems to me that that statement oi the

lav set forth with great clarity that the Court would not 
accept just a minimal plan which was offered by the Board 
or Education but that it would be the duty of the Court to 
see that the plan which was adopted by tlie Board and approved 
by this Court achieve the greatest possible degree or actual 

desegregation.
I would also like to call the Court's attention 

to Paragraph 2 of our objections, which are a pleading in 
this case, and I assume that we are entitled to the processes 
of the Court and of the law for the purpose of proving the 
allegations of our pleadings that fall within the perimeters

of the law.
Paragraph 2 of our objections says that on 

information arid belief the plaintiffs prepared and haa before 
them a plan which would have effectively removed the racial 
identity of all schools in the system by assigning children 
in approximately equal black and white proportions to each 
school but rejected said plan which should have effectively 
and meaningfully desegregated the schools and which plan was 
feasible in favor of said effective plan with the Court.

•The action of the Court in sustaining this motion 
to quash tentatively means that the plaintiffs, in effect, are

i



i7ia
boing denied, and the Court, in effect, i* denying itself 
aiid the plaintiffs the benefit of evidence which might well 
aliow that the School Board is not contilying with the require­
ments of the law aa set forth by the Supreme Court in Davis.

I thought that I was making that clear in my 
original argument, but I want to make 3ure that 1 had that 
argument before the Court on this matter. I feel very 
strongly that it isn't a matter of better planning, as far 
as a better plan or worse plan is concerned and what we are 
here to do is to try to see that the defendants obey by the 
law by adopting a plan which will achieve the greatest 
possible degree of desegregation taking into consideration 
the practicalities of the situation.

THE COURT: All right. The next matter.
MR. WITT: The next matter, if your Honor please,

would be the motion to strike the plaintiffs' objection to 
the plan.

'HIE COURT: well, once again, Mr. Witt, would or
not that be basically a legal argument?

MR. WITT: Yes.
THE COURT: And you have submitted a brief?
MR. WITT: I have.
THE COURT: Do you have anything further you

wish to add to your brief?
MR. WITT: Ho, my brief, I tit ink, speaks for

v4 * *V T fli t)



i73a
itself.

THE COURT: Very v e i l .

MU. WILLIAMS: May i t  p le a s e  th e  C o u rt, 1 d o n 't

in te n d  t o  d ig n ify  h i s  b r i e f  by re p ly in g  t o  i t .  I  would l i k e  

t o  j u s t  s t a t e  b r i e f l y  in  re g a rd  t o  t h a t  t h a t  i t  seams beyond 

th e  sco p e o f  re a so n a b le  argum ent o r  c o n te n tio n  f o r  t he 

d e fe n d a n ts  t o  s a y , a s  th e y  have s a id  in  t h e i r  b r i e f ,  t h a t  

tile  p l a i n t i f f s  may n o t c o n t e s t  th e  q u e s tio n  o f  w h eth er o r  

n o t th e  p la n  su b m itted  by them co m p lie s  w ith  th e  C o n s t i tu t io n  

a s  i n t e r p r e t e d  by th e  Supreme C o u rt.

THE COURT: V ery w e l l .  W e ll, t h i s ,  o f  c o u r s e ,

d i r e c t s  i t s e l f  t o  th e  v e ry  m e r i t s  o f th e  m a tte r s  t h a t  a r e  

b e fo re  u s to d a y  and, a c c o r d in g ly , i t  sh ou ld  be r e s e r v e d  u n t i l  I 

we have h e a rd  a l l  e v i d e n t ia r y  m a tte r s  a s  w e ll a s  a l l  o th e r i
l e g a l  c o n t e n t i o n s .

u re  th e re  f u r t h e r  m a tte r s  now t h a t  sh ou ld  be 

U Jten up p re lim in a ry  t o  p ro ce e d in g  w ith  th e  e v id e n ce ?

HR. WITT: Hot on be hal f  o f  th e  d e fe n d a n t, yo u r

H onor. |

THE COURT: A ll  r i g h t .  Are we re a d y  t o  p ro c e e d

now t o  a h e a r in g  re g a rd in g  th e  p la n  a s  su b m itted  by th e  

Board o f  E d u ca tio n ?  V ery w e l l ,  l e t ' s  ta k e  t h a t  m a tte r  up 

and the C o u rt w i l l  h e a r  from  th e  B o ard .

Mk. WITT: Your Ho no r , th e  p la n  a s  p re s e n te d

seejes t o  speak  f o r  i t s e l f  and i t  r e p r e s e n ts  th e  b e s t  judgment



1740
ox th e  C h attan o o g a  B oard  and th e  B oard met o v e r  a lo n g  

p e r io d  of tim e , more th a n  te n  m e e tin g s , and in  a d d itio n  i t *  

u n d e rsta n d in g  o f  th e  i n s t r u c t i o n s  g iv e n  t o  th e  B oard  by t h i s  

C o u rt, o f  c o u r s e , th e  B oard  h as re a d  th e  sworn d e c is io n s ,  

re a d  th e  Goss and th e  Rob in son  and N o rc ro ss  d e c is io n s ,  i t  

h as made ev<-ry e f f o r t  t o  c o n s t r u c t  a  p la n  t h a t  th e  B oard  

co u ld  a g re e  t o  and one t h a t  th e  B oard c o n s id e r s  t o  m eet i t s  

r e p o n s i h i l i t y  t o  i t s  c o n s t i tu e n c y  and a l s o  t h a t  m eets  th e  

l e g a l  re q u iresaen ts  as  i t  u n d e rsta n d s  tliem and th e  p la n  as  

i t  s ta n d s  sp eak s f o r  i t s e l f  and I  would n o t n e c e s s a r i l y  o f f e r  

any p ro o f in  su p p o rt o f  i t .

THE COURTi W ell, Mr. W it t .  I  have in d ic a te d  a  

l i t t l e  e a r l i e r  in  c o n n e c tio n  w ith  yo u r m otion  on th e  

dueos tecum , i t  i s  th e  C o u r t 's  u n d e rsta n d in g  o f  th e  law  t h a t  

what we must seek  h e re  i s  a p la n  w hich e l im in a te s  a l l  S tate-*  

xiaposed o r  S t a t e —c r e a t e d  s e g r e g a t io n .

Now. o f  c o u r s e , where i t  i s  p ro p o sed  t h a t  a 

r a c i a l  b a la n ce  be acccrq p liah ed  in  a  p a r t i c u l a r  s c h o o l , th e n  

c e r t a i n l y  w ith  re g a rd  t o  t h a t  p a r t i c u l a r  s c h o o l t h e r e  co u ld  

oe no c o n te n tio n  t h a t  any State-ixryoaed s e g r e g a tio n  e x i s t e d ,  

b u t a s  announced by C h ie f J u s t i c e  B u rg er in  th e  Swann 

d e c is io n  i t  i s  n o t th e  c o n s t i t u t i o n a l  req u irem en t t h a t  a  

r a c i a l  b a la n ce  be a ch ie v e d  in  e v e ry  s c h o o l o r  t h a t  r a t i o s  

a r e  n e c e s s a r i l y  th e  m ost s i g n i f i c a n t  item  b u t r a t h e r  where 

th e r e  a re  s c h o o ls  t h a t  w i l l  rem ain w ith o u t a r a t i o  t h a t  i s



1741

somewhat e q u iv a le n t  t o  t h a t  of th e  sy stem  a s  a w hole, th en  

th e  School B oard h as th e  burden, a s  s t a t e d  in  t h i s  c a s e ,  o f  

showing t h a t  w h atev er does rem ain  x s  n o t th e  r e s u l t  o i  any 

S t a t e  a c t i o n  o r  in a c t i o n  o r  any B oard a c t i o n  o r  i n a c t i o n .

Do you have any d i f f e r e n t  i n t e r p r e t a t i o n  o f  th e  

i s s u e  h e re  to d a y ?

MR. WITT: May i t  p l e a s e  th e  C o u rt, a s  I  under­

s ta n d  yo u r s ta te m e n t, i f  you had a s c h o o l sy stem  i n  w hich you 

co u ld  p ro v e  t h a t  th e  r a c i a l  p r o p o r tio n , we w i l l  s a y , was 

5 2 - 4 8 ,  and th e n  i f  you c o u ld  p ro v e  t h a t  in  e v e ry  c la s sro o m  

in  e v e ry  s c h o o l th e  r a c i a l  p ro p o r tio n  was 5 2 - 4 8 ,  I  d o n 't  

think, t h e r e  i s  any q u e s tio n  about i t  b u t t h a t  under th o s e
|

c ir c u m s ta n c e s  you would have a  system  t h a t  was c o n s t i t u t i o n a l  

under any i n t e r p r e t a t i o n  o f  th e  Supreme C o u rt o f  th e  U n ited  

S t a t e s .

I f  you move o f f  from  t h a t ,  i f  you move away from  

t h a t ,  how f a r  do you come away and i f  you came away from  t h a t  

5 0 -5 0  b a la n c e  t o  any d e g re e  what k ind  o f  re a so n s  o r  f a c t s  

would j u s t i f y  d e v ia t io n  under th e  C o n s t i tu t io n ?

Then t h e r e  a r e  o th e r  c o n s id e r a t io n s  i n  th e  sch o o l  

sy ste m . F o r  a x a a p la , t h e r e  i s  th e  q u e s tio n  o f  e d u c a tio n a l  

v a lu e s , t h e r e  i s  th e  q u e s tio n  o f  ad eq u ate  s u p p o rt, th e r e  i s  

the q u e s tio n  o f  f in a n c e s , t h e r e  i s  a  q u e s tio n  o f  in co n v e n i  

t h e r e  i s  th e  q u e s tio n  o f  s a f e t y ,  t h e r e  i s  th e  q u e s tio n  o f  

w h eth er o r  n o t you have th e  a c t u a l  f a c i l i t i e s  t o  do th is , and



1742

in  t h i s  in s t a n c e  e v e ry  e f f o r t ,  th e  r e c o r d  would show and 

th e  p la n  would i n d i c a t e ,  t h a t  in  e v e ry  i n s t a n c e ,  e v e ry  

i n s t a n c e , t h a t  i s .  i f  th e  s tu d e n ts  go t o  th e  echoed t o  w hich j 

th e y  would be a s s ig n e d , th e  s c h o o l system  would b e ~ t b e r e  

would he no a i l  w h ite  s c h o o ls , t h e r e  w ould be no a l l  b la cX

s c h o o ls .

AS I  r e c a l l ,  th e  s c h o o l w ith  th e  s m a l le s t  p e r -  

c e n ta g e  o f  b la c k s  would p ro b a b ly  be 1 2  p e r  c e n t .  »nd th e n  ,

i f  you go from  12 per c e n t  t o  20 p e r  c e n t  w hat I s  th e  v a lu e  

o f  moving f r o a  12  p e r  c e n t  t o  20 p e r  c e n t?  T hese a r e  th e  

lands o f d e c i s i o n s ,  e d u c a tio n a l  d e c is io n s ,  n ix e d  l e g a l  and 

e d u c a tio n a l  d e c is io n s  t h a t  th e  B oard  a d d re sse d  i t s e l f  t o  

o v e r th e  p e r io d  o f th e s e  m e e tin g s  and t h i s  p la n  a s  i t  cornea 

o u t is th e  co n sen su s a s  i t  r e f l e c t ,  th e  B o a r d 's  a tte m p t t o  

accocraodate th e s e  a p p e a lin g  v a lu e s  in  r e c o n c i l i n g  th e  p u b lic  

and p r i v a t e  v a lu e s  t h a t  th e  C o u rts  have ta l k e d  a b o u t.

iiow. to what extent th e y  would prove t h a t  th e  

circumstances, f o r  example, w ith  r e g a r d  to ̂ Vermont. w h eth er  

o r  n o t it was wise o r  w h ether or n o t  it was educationally
sound can be ona q u e s t io n , h u t th e  o t h e r  q u e s tio n  i s ;  Does

1

i t  m eet a c o n s t i t u t i o n a l  re q u irem en t?

You ta k e  one sch o o l a t  a  tim e , you ta k e  th e  

system as a w hole. In  t h i s  system  th e  p la n  a s  s u ls a itte d  w i l l  

I p ro v id e  f o r  d e s e g r e g a tio n  o f  s t a f f .  4 3 - 5 7 ,  no q u e s t io n  about 

t h i s  b e in g  re q u ire d , t h a t  i s  th e  p e r c e n ta g e  o f  t e a c h e r s  In

S c *■ I



the system, b la ck  t e a c h e r s  t o  w h ite  t e a c h e r s .  It w i l l  be 

l i k e  h a s h v i l l e ,  th e r e  won’ t  be any 22 e le m e n ta ry  s c h o o ls  a l l  

jj white, t h a t ’ s  n o t even  in  th e  c a te g o r y  a t  a l l .

Under th e s e  c ir c u m s ta n c e s  th e  B oard  c o n s id e r s  

t h i s  t o  m eet i t s  u n d e rsta n d in g  o f  th e  c o n s t i t u t i o n a l  r e q u ir e ­

ments t o  th e  e x t e n t  t h a t  th e  r a c i a l  b a la n c e — c e r t a i n l y  r a c i a l  

balance i s  d i f f i c u l t  t o  say— th e  Swann c a s e  i s  ccsq p le to ly  

c l e a r — by any m eans, b u t i t  seam s l i k e  t o  me t h a t  one thine - 

jj is co m p le te ly  c l e a r  in  Swann, and t h a t  i s  a r a c i a l  b a la n c e  

i s  n o t a  c o n s t i t u t i o n a l  re q u ire m e n t.

THE COURT: Y e s .

MR. WITT: T h ere a r e  o th e r  w ords t h a t  ta k e  away

freer, t h a t ,  t h a t  i s  c o r r e c t ,  b u t i f  you ta k e  t h a t  lan g u ag e  by 

i t s e l f  t hen th e r e  i s  no c o n s t i t u t i o n a l  req u irem en t f o r  r a c i a l  

j| b a la n c e  and i f  I  defend  ou r l a c k  o f  r a c i a l  b a la n c e  by Icy d  i -
jj
| c a t i o n  I  am a d m ittin g , and i t  i s  a  c o n s t i t u t i o n a l  re q u ire m e n t  

w hich I  ca n n o t do in  a l l  good c o n s c ie n c e , and in  su p p o rt o f  

ray c l i e n t ’ s  p o s i t io n  and th e  p la n  a s  i t  i s  d e f in e d  o r  as 
agreed t o  unanim ou sly , w ith o u t a d i s s e n t in g  v o t e ,  and t h i s  

r e p r e s e n ts  t h e i r  b e s t  j udgment under w hat o b v io u s ly  must be 

e x tre m e ly  t r y i n g  c ir c u m s ta n c e s .

I  doubt t h a t  a  B oard  h a s  e v e r  t r i e d  t o  a s

d i f f i c u l t  a  d e c is io n  under th e  c ir c u m s ta n c e s . I t  i s  n o t  

p e r f e c t ,  i t  i s  a lo n g  way from  b ein g  p e r f e c t ,  bu t i t  represents 
t h e i r  b e s t  judgm ent. They w ere a l l  p r e s e n t  a t  a l l  o f  th e

' 1743



I

meetings. They went axi through it and this is what they 
thin*. Elects their responsibilities and. as we see it, and 
as the Court indicated in the hearing, and we understood it, 
the Board understood it this way, that it was the Board who 
had the responsibility to hear, iirst under the law it was 
their first responsibility, not the Court's, and it was then 
tile Court’s responsibility if, as we understood it, to lay 
their plan along the constitutional requirements as annunciate*! 
Ly the Cupreine Court and by Goss and by the other decisions 
and see whetlier or not this plan under these circumstances 
was constitutionally acceptable, we don't contend that these 
answers are complete but they are tile best the Board has and 
tins is our position.

Many aspect*, of these plans were considered 
during the course and what was considered or what might have 
been considered or why this was done or why that was done,
I submit that it is the judgment of the Board, that is the i
factual issue before this Court, and the best and the only 
evidence.

iThe only evidence of this School B o a r d 's  

decision is the plan because the Board only sp eak s through 
its minutes and that is the best evidence of the Board's 
judgment and it does speak for itself and it either meets 
the constitutional requirements or it doesn't in the opinion 
of your Honor and we recognize that.

i744



1745
TUB COURT: On what record would you suggest

that the Court make a decision as to whether all State 
segregation has been removed? Would you suggest that I make 
the decision just on the basis of the evidence as it lias 
heretofore been submitted before any plan was before the 
Court or do you propose here today to offer any evidence 
in support of your contention that you have eliminated by 
this plan all State-imposed segregation?

MR. WITTs I think to say that this plan 
necessarily would remove all State-imposed segregation, I 
happen to believe that it does and I think the facts will 
show that, but other people would disagree.

TILL. COURT: That is what I am talking about,
where do you suggest the Court look for the facts, Hr. Witt, 
unless you offer evidence?

MR. WITT: Because there is no segregation if
the plan is effected, there is no segregation remaining, so 
you don't have to defend it because it doesn't exist.

THE COURT: All right.
MR. WITT: Now, we are not arguing that one per

cent is desegregation. There is no one per cent in this 
plan, there i3 no token, and there is no law on this, if 
10 per cent, if 9.9 per cent black and the remainder white 
is segregation then we are in another bail park, but I know 
of no law that 3ays that 70 per cent or 65, and it couldn't



I

be this way, it couldn't possibly be this way, for this 
reason, the school staff, tbs staff in the City of ChattanoogaI
today is desegregated beyond what Knoxville will require that 
their staffs are desegregated under the law because we already 
have in excess of 16 per cent desegregation of faculty in 
Chattanooga voluntarily, and yet with that ratio in Knoxville 
that will be the law in Knoxville, so you couldn't possibly 
have, as I see it. a statistical analysis of the Constitution 
that says if you got more than 1 0  per cent black or ruore than I
1 0  per cent white that that is segregation. There will be 
no segregation under this plan.

MR. WILLIAMS! May it please the Court, roay it 
please your Honor, I think we c o m  right back to the language j 
of Chief Justice Burger, that having once found violation 
the District Judge or school authorities should make every 
effort to achieve it, taking into account the practicalities 
of the situation and 1  think that it is incumbent upon the

1740

defendant to show that this plant represents an effort on 
their part to achieve the greatest possible degree of actual 
de segregation.

I am prepared to cross examine this witness. I
i

am prepared to introduce proof that it does not. 1  think i
thu-y have the burden and I think that it is relevant.

1  think your Honor's ruling on the subpoena in 
effect was the threshold for this position on the part of the

U N N f  SSlk

1 . N I



1747

ii

defendant because if they knew that we had the plans which 
they considered, which would have achieved the greatest, which 
it is not lay information that this was unanimously done, I
don't question counsel because he is an officer of the court, 
but I had contrary information prior to his stateusent regarding 

longanimity of this plan. I
THE COURTS Once again, Mr. Williams, I do not 

conceive it the function of this Court to inquire into the
political processes by which decisions are made.

MR. WILLIAMS: I understand.
THE COURT: The problem before the Court, as I

see it, is that we have a plan that has been proposed in 
which the defendant says complies with the law. That is.
that, it removes all segregation that has been created or 
imposed by the State, however, as I understand the defendants'
position they do not propose to offer any evidence in support 
of their contention that it removes all State-imposed 
segregation, they'd just rather propose that the Court 
apparently act on the basis of either the information that 

heretofore been presented or that the Court accept their 
statement without proof that it does so.

MR. WILLIAMS: Well, I think they do have the

burden of proving that.
THE COURT: All right.
MR. WITT: May it please the Court, the plan, if



1746
there is some degree of desegregation that is constitutional 
and seme that is not constitutional, then we would have 
attempted to achieve that and the statement from Justice 
Burger that Hr. Williams quoted leaves this in the area, 1 
mean how much is enough.

THE COURT: Mr. Witt, really.
MR. WITT: I don't understand what you do in a

situation like this, I mean it says as much desegregation as 
possible, ilow much?

HIE COURT: Well, I have stated now this morning
several times, and I attempted to state very clearly at the 
time of the evidentiary hearing in this what ray understanding 
of the Swann decision was. Let me state it once again.

The Swann decision does not constitutionally 
mandate any particular ratio in any particular school. The 
Swann decision does constitutionally mandate that all State- 
imposed or Board-created segregation be eliminated.

How, any plan that can be supported by evidence 
to the effect that it has eliminated all State-created 
segregation would be entitled to the approval of this Court, 
but I do not understand how you propose that the Court 
make this decision.

If, on the other hand, you also propose not to 
submit any evidence in support of the plan which you propose 
unless, as I say, you expect the Court to go back into ten

f ►’ i . ’ H



1749
days of extensive testimony regarding tike school ayatoiu as 
it now exists, and the Court certainly can consider that 
evidence and you are entitled to rely upon that evidence to 
whatever extent you wish to rely upon it, but you have sug­
gested, for example, that you do not have the facilities 
available to accomplish the plan which you have proposed and 
if you wish the Court to consider that I think it would be 
helpful if you would advise with regard to what the facts 
axe in that regard. I can't guess at these matters.

MR. WITT: Well, may I respond with reference to
the plan itself and the degree of desegregation, pupil 
desegregation, that the plan reflects? This is a part of a 
plan and these are figures, your Honor, prepared by the Board 
and they are before the Court and it is on this basis that 
the plan when implemented would do away with segregation and 
the only assumption that could be made is that the assignment 
of students as set forth based upon the record would be 
followed so we would consider this to before the Court.

Now, with regard to the reasons why the Board 
does not feel like that it can iagxlament the student part 
of thrs between now and September, I would offer the 
superintendent to prove these reasons, hut I am thinking 
more of from the viewpoint of why it can't be done by 
September and not that the plan as implemented would remove 
all otate-imposed segregation.

i o n • f h



THE COURT: Well, present your case.
HR. WITT: Cell Or. Jim Henry to the stand,

please.
THE COURT: Just a moment, gentlemen. I see it

is near the hour that we normally take a few minutes recess. 
Before we start with the witness suppose we take about a five 
or ten-minute recess.

(Thereupon, a recess was had.)
HR. WITT: May it please the Court, before I

start with Dr. Henry might I make these remarks? The 
physical facts with reference to the City School System were 
thoroughly developed in the nine days of hearings that were 
concluded on the 19th. We don* t intend to go into tnose or 
amplify them in any way.

Secondly, the plan as submitted represents the 
uest judgment of the Board.

MR. WILLIAMSi Kay it please the Court, I object 
to counsel stating conclusions, just as if they were a matter 
of evidence, I think.

the COURT: Well, he may complete his statement,
then you may make your statement.

MR. WITT: Now, the evidence that we will intro­
duce by Dr. Henry has two purposes. One is to indicate any 
departure from a racial balance and give his reasons, but at 
the same time continuing to resist the racial balances and

1750

*■ Rf s \ » ' N O



Dr. iic-nry - Direct 1751
the constitutional requireagents and then, lastly, the reasons 
of why the student desegregation part cannot be placed into 
effect on August the 30th.

a witness called at the instance oi the defendants, being 
first duly sworn, was examined and testified as follows:

DIRECT EXAMIIhvTIOK

ax m *. m i

v Dr. Henry, would you please give your full name?
A James W. Henry,
w Vihat is your position?
A Superintendent of the Chattanooga Public School
System.
U Are you a defendant in this action?
a Yes, sir.
v ur. Henry, in the plaintiffs* objections to the
amended plan of desegregation filed an June the 16th they 
stated that the following elementary schools were not
effectively desegregated, these are Barger, Carpenter, Long,
hive noont and Sunnyside.

Now, assuming for the purpose of answering the
question of effectively desegregating, and solely for that 
purpose, means deviation from 50-50, what is the explanation 
for Larger? No, first, what would be the ratio of black to 
white at Barger under the amended plan?



^ Well, the ratio of bldd and white at Baryor
under the proposed plan would be 2 0  per cent black. 60 per 
cent white.

The ftaqpl anat ion for this is our task aa given to 
the professional staff, as given by the Board, was to achieve 
the most economically and inmtxuctionally feasible option® 
combination of the two variables— maximum desegregation and 
roinirom n travel of pupils. We were taking into consideration 
this premise and the degree of desegregation of attendance 
zones varies indirectly with the distance given attendance 
zone is from contiguous attendance zones that axe of different 
races, in other words, from this we are saying that the 
most, as far as numbers are concerned, contiguous attendance 
zones of different races mare do segregated the most and as 
you go out from the core center, of course, this lessens, 
as such we are thinking of what was reasonable, what was 
feasible, the distance involved, and what was economically 
sound where we could and there were some exceptions that had 
to be made.

Dr. lienry - Direct 1732

In going, of course, from the various 
we thought this was an improvement, it was not as hard for 
us to determine as has been stated before what is desegrega­
tion when you are thinking of that in the previous year there 
was zero degree, zero percentage of blacks at Barger, and 
under this plan you would have 2 0  per cent, which we

* • -• ■ j . b K l  W  • f v v

h r  ( H I ’ N • t V  A h  ' '  rvjf jA

• N N (



Dr. Henry - Direct. 1 7 5 1

is «i del mite increase and it's hard tor us to determine 
wjiat represents desegregation and what is not in tiiat respect* 

The larger situation as such, and 1 lvsw to tia 
it in with Junnyside because they are contiguous there,
Sunny aids and Barger. 'The reason that the number, and I hate j 
to play numbers game, X don't bexieve this is what is 
demanded, but in this direction our assumption is that in 
looking for what will occur in the future and what will 
became more effectively desegregated as stuch. blacks are 
moving into this general area and our general plan was com­
bining the two contiguous zones. Sunnyside and Barger here 
one for one, three and one for four through slit. In the zone 
here for th*> future blacks are moving into this zone and we 
think that the percentages will increase in the future and 

situation will take care of itself with the normal move­
ment of people, though we did not look adversely on the 20-80 
percentage as being anything negative in the way of desegre­

gation.
•fould you like for me to go on to the others? 

w That's ail right for the moment. Dr. Henry, you
have a document, I believe, entitled "Statistical Comparison 
of 1970-71-Treposed 1971-72 attendance hones, dated June 25. 

1971."
Yes. I do, right.
This is an exhibit to the response, that was



H i e d  exhibit A to the response that was filed on Monday.
would you xTio_K.e this an exhibit to your testimony? i

!Yes, sir.
THE COURT: What is the document being referred

to, Mr. witt?

MR. WITT: Statistical comparison of 1970-71 and I
proposed 1971-72 attendance zones. Page 1 of 2, dated June 
25, 1971. Here is a copy.

THE COURT: Yes. Perhaps we should continue
the numbering of exhibits consecutive. Does the reporter 
have the last number exhibit?

THE REPORTER: Ho, your Honor.
THE COURT: Just a moment. The last exhibit

appears to be Exhibit ho. 141 and this will be Exhibit 
Ho. 142.

(The statistical comparison of 1970-71^ 
and proposed 1971-72 attendance zones! 
referred to above was marked Exhibit 
Ho. 142 for identification ana 
received in evidence.)

w hew. Dr. Henry, I direct your attention to the
map entitled “Elementary Attendance bones", which is appended, 
it is a part of the plaintiffs* plan of June 16th as amended.

THE COURT: Do you wish to identify it by exhibit
number also?

MR. WITT: I think it would be Exhibit No. 143.
THE COURT: 143.

b£. Henry - Direct 1754



tii. i Usury - direct 1755
(Map 1, Elementary -ones, referred to 
above was marked Exhibit Mo. 143 for 
identification and received in 
evidence.)

i
U Dr. Henry, I call your attention to this exhibit, |
and school Mo. 31 is Barger?
A l*o, that is Sunny side. I can't see from here but
5 is Barger, 31 is Sunnyside, they are connected.
U Well, you are correct, this is incorrect, 3 and
31, 31 is—
A (Interposing) Sunnyside.
w And 3 is Barger. How, in attempting to get an
additional number of black students in Barger what alterna­
tives did the staff have?
A Well, of course, we could have gone down into
the core city and travel many miles along the freeway, which 
we thought was a safety hazard, and paired with one of the

Ischools in the core city, which under our Board direction we 
didn't feel was feasible.
U All right, what was the contiguous zones to the
north?
a To the north would have been woodmore.
w Are there any lacks in woodmore?
A A few, but not many, or Elbert Long in the other
direction, very few blacks.
v Arc tnere any substantial number of black student^



or. jdenxy - Direct 
in albert Long?

1756

A NO.

‘■j All right. Now, to the 'west, where would the
nearest black student residents be?
A Of course, bunnyside had a fairly large number
is the reason, of course, we used theca as a contiguous zone, 
other than that you would have to get a contiguous zone, you 
would have to leapfrog over to the Glenwood and the core city 
area.
u why did you stick to the contiguous zone, what
was the reason behind that?
A well, economically it was more feasible it
was the minimum of transportation we were thinking of and 
the xainiiauEi level of moving students from one side of town 
to the other that resulted.
C All right. Now, would you identify where the
Carpenter school is?
A Carpenter School is there in the center,
w Carpenter is No. 6?
A That’s right. That's practically on the campus
of the University of Tennessee now at Chattanooga. One 
reason, if you would like to go into the Carpenter thing, 
that is the opposite of extreme and has the smallest number,
86 per cent black, 14 per cent white. Of course, there are 
very few, if any, whites in that section. We bused in a few I



Dr. lienry - direct 1757

there but under the proposed plan we feel that this section, 
this scnool in itself would be closed within one to two yesrs j 
simply because the people are waving out of that section, the j 
university is taking over most of it. HUD has a grant in 
there now. the now. not freeway, hut the Riverside D.ive 
continuation there, the Amnicola Highway project cosiing 
through there, most of the houses have been removed in a 
largo section of it to the north, the hospital, the medical 
caoplex from Brianger on the other side, the cemetery there, 
that ccemumty will soon be gone almost completely, so we 
felt this is an area that we could leave a low percentage.

that it would take care of itself.
Where do the white students live that will hew

assigned to Carpenter?
A They are in the Mmicola area there, in that
large red section to the north there, they are few in number 
and that also is a section that is becoming highly ccwaercial. 
we wanted to close this area sisply because there are very 
few students, if. not economically feasible to maintain that

school, we feel that they will he gona soon.
All right. If you wanted to increase the per-

contaye of white students to Clars Carpenter what were your 
other alternatives, where could you have gone to secure the

whxte students?
we would have to have gone out into the extreme

I '



o r .  h e n r y  -  D i r e c t 17ifi

.area, o£ course, wo had a decision, there were some we could 
have taken the James A. Henry there in the core city or the 
Donaldson area or the smith area but those wo felt that would 
wc th’ re for some tiiae said that Carpenter was the area that 
vouid be soon closed and so we would rather, if we have to 
go out across the river farther away that we would use these 
schools that we thought would be there in the future.

*wLl right, bow, 1 address your attention to 
Lioert hong. what i3 the situation therei How many blacx. 
students will Libert hong have under the plan when it is 
iwpl ement od?
A Libert Long would have had 16 per cent black
and 64 per cent white and this is at the extreme area of 
the city, it was annexed, I think, after the desegregation 
plan, it was never a part of this, it was a part of the dual 
school system and we felt no obligation there.

why aren't more blacks assigned to Libert Long?
A dell, one reason, of course, thinking of the
future again, we want this to be successful, is that if m >p 
future annexation, which we feel will be coming soon, in the 
Board's opinion there are blacks in the area adjacent to this 
aone and there is a small black community there in future 
that could be zoned into Libert Long and would help that 
percentage there.

nil right. If you wanted to increase tue number



a759Dr. Henry — Direct
of blacks at Elbert bong where would you have to go to?

You would have to go milee Into the doe,tow., core

city with twaea.
Any other alternative?
I v. n't think of any, no./•*
All right, air. New, identify the kivermont

School.
Rlvemont ia marked red there on tho map. the 

northern auction of the map north of the river there. 28. 

w All right.
A This was recently annexed and we did. in going
with the theory that to have experiuhee. ao that all atudenta. 
ail people would have experience of mixing with white and 
blacks to place a few atudenta there, but we felt that thia
waa not the reault of the desegregation. the segregation at 
Kivormont waa not the reault of any Board action or action 
of the Government, thia ia. of course, a long distance from

tiie core city.
How did you aaaign hlacks to Kivermonth? 
hi Vermont blacks were coming from the P section 

iust south of the river there and free, the small group free.

that ftî nicola area.
Will they be transported?
They would be transported, yes.
Is this all the black students in that area?



j!

ur. henry - Direct jl760
A Yea.

^ All right. .dieru else could you have gone to got
wore blacK student* in IliVermont?

A Of course, you do have to yo into the core city,
you would have had to go downtown into the Carpenter area, 
v All right. Now, Sunnyaide is also objected to
as not being effectively desegregated. What is the explanation
for that?

A Sunnyaide we believe in time will take care of 
itself. In the imaediate zone there there are many blacks. 
This is one of the schools that was, we feel, effectively
desegregated at the beginning, it was not questioned by the 
plaintiff. We feel that in using this to desegregate both

Isections you have to consider them together, Barger and 
Sunny side, we think tnat will be one of our most successfully
integrated paired set of schools. This is an area in which

.

hlacjcs are rapidly moving into and it will take care of 
itself.

Does your exhibit indicate how many blacx students 
wore in this area last year assigned to Sunnyaide?
A Yes, there was 43-57 per cent last year, 43
blacks, 57 per cent white. !
w How many black students?
A One hundred thirty-four black students.
 ̂ This will be increased under the plan implemented



I

to what figure?
A Fifty-five black.

Ur. Henry - Direct 1701

D what is the eaqplanatlon fox that decrease? :|
A These people are being transferred to the Barger
area there to create more effective desegregation there. 
vj Dow, next objection to Carpenter on the basis
that it being SO per cent black it will encourage white flighty 
Did the hoard consider that?
A Tas, it rs our considered opinion that there are i
no whites in that area, very limited. I don't tltlnk there are 
too many.
y Ail right. In your consideration, in yours and
the staff and the Board* a consideration of the desegregation 
was any consideration given to the affluence of areas or 
their socio-economic situation?
a No considerable extent. 1 doubt if we could
eif<=ct the desegregation an socio-economic grounds oeyond I
our desk, really, we thought that in effect many of the areas,] 
being contiguous, would take care of this situation to a 
certain 3>rtent and thinking of what wac educationally sound, j
how people would be affected by having to leapfrog across 
town from various sections, this would help the situation

'

uiiere, too, but socio-economically there' s no way in the 
world, I douut in my limited experience, that would take care
of that situation, we had to cross some areas there. I



I

bo jr. Henry - Direct ±7t>2
1; *' I
ij u All right. Lir. llenry, in the elementary areas

would you identify the schoolA that do not meet at least the 
70-30 tear wrth reference to block-white?

!A well, of course, I hesitate to refer to any
number snarly because 1 don't know of any number to work with 
like 70-30, but in this sense I would like to talk to the 
whole situation here that of the 23 schools remaining on this 
plan the 23 schools are within this 30 to 70 range.

i•j o Hew many?
jj A Twenty-three cut of the 28 are within this 70
j;

to 30 range.

If you look on this Exhibit 142 it goes from 
black to wuite on percentages there in the right-hand column, 
you will notice that starting with Howard, no, with Oak Grove 
there, 70 per cent black and going on dawn the table until 
you run into Lastdale, being the last one there, you will 
have one, two, three, four, five schools, outside the 23 only 
live schools are outside of the 70-30 percentage.

I do not wish to admit the 30-70 being any type 
of ratio that you have to follow, 
s. All right.
A Evidently from the objection that this was stated.j
; /ill right. Do you have an explanation for the

IIplaintiffs' objection with reference to the fact that more
■

younger black children were required to travel in the first



I

three grades than white children?
Well, of course, I disagree with it. /actually 

where the schools were paired it was my opinion and statistical 
data where the schools were paired that the greater percentage 
was on the side of the whites in traveling.

Dow, in another group where we had a cluster we 
followed pretty much the plaintiffs* expert on this and what 
he did, actually we came out a little better than he did on 
the travel because of the size of Orchard Knob Element ary, 1 
tiiiwc one other school in the cluster group we did have more 
of tne blacks traveling there, and in the closing of schools, 
but all-in-ail it is our considered opinion that we were very 
close, we were attenuating to get it fairly even, as close to 
Deing an equal amount of travel. It was not our intention to

jdiscriminate in any way. More capacity available than any- 
thing else, the number of students in the building than any- 
thing else, so there was no attempt to discriminate here.
If it is it is the capacity of the building and in the pairing 
situation it came out about 50-50.
U Now, Dr. Henry, I direct your attention to the

i

plaintiffs* objection that was stated that 72.8 per cent of 
the elementary schools which had a black majority in 1970-71 
would have a black majority in 1971-72. Was an effort made 
to do away with schools with the black majority?

dell, not exactly. We attempted to take the

Dr. Denry - Direct l7b3

I



j

‘existing school zones that we had in order not to have cohi- 
pietc chaos in September, we wanted people to be able to 
recognize where they would go back to school in the short.

|time wc have got. how, it creates quite a problem, so in 
attempting to get the contiguous zones to eliminate a large 
degree oi travel, as much as we possibly could, it just so 
happened that some of the things come out like this.

We think that whan you get into the 40-60 range, 
which we had a large number there, that conceivably you could-f 
now, we had some schools that did go from black to white and 
white to black, they switch back and forth, but 1 think wlien 
you get close there if you will notice in several of them 
that 1 have 47-53, 45-55, 43-57, 56-42, 59-41, you are having 
sections that were identified as black schools at one time 
that are new white.

You have a community like Last hake which was 
all wru.ee, it's 49 per cent black and 51 per cent white.
0 Let's look at Exhibit 142.

All right.
A And Howard Elementary School. How, it was all
black in 1970-71, I believe? 
a Yes.

what will it oe under the proposed plan? 
a Sixty-nine per cent black, 31 per cent white,
uf course, the coarraounity as such there, it's hard to find

ux. itonry - direct. l /o^

i



j jr. Henry - Direct. 1765
white people anywhere near the approximate area.

THK COURT: t/hat school are you referring to?
THb WTTHHSS: Howard, Howard elementary.

t How many white students will be transported to
Howard under the plan?

Under that plan how many students wou^d be 
transported to Howard? It would be basically the white 
students in the bast cake area and the jt. Klmo area, 
v lie*/ many?
A 1 can’t toll from this diagram here. Of course,
220 white, assume that all of these will be transported. 
u Ail right. How, let's go to the next elementary
senooi that was majority black in 1971, I believe that's 
nvondaie. /ill right. What is the change at Avondale 
proposed under the plan?
h well, Avondale jumped from one white to 640
,uacxs to 340 blaclts and 190 whites, jumped from practically 
one per cent to 36 per cent, it's a big increase, 
e All right, bow, the next majority black
elementary school I believe is Donaldson, what is the 
situation tht/re?
a Here from a aero per cent white to 37 per cent
whi to.
Q And in number of students what would this be?
A You are jumping from zero white to 167 white.



Dr. Deary - Direct 1766
U All right, how, what is the next ail black

elementary school?

/> Weil, you have acme that are one and two students,

w Substantially all black?

A Donaldson, you are going down to Orchard Knob,

7bd black, to three white, going up to 476 blacks to 296 whites. 

0 how, Did Orchard knob present any different

problem from the other elementary schools?

A Yes, of course. There is a large concentration

of blacks near the school, it was £oned for that purpose and 

i t  i s  a very large school, the capacity is very large and 

creates quite a problem in that as we know Dr. dtolee, the 

plaintiffs' expert, stated it has to be clustered with, I 

thlnx. it was combined with several other schools to get any 

kind of desegregation there.

V hew many white students would be at Orchard knob

under toe plan?

a Two hundred ninety-six, 3d per cent.

U Ail right. Now, the next school I believe is

hell School. What would be the change there? 
a Bell, of course,fram 514 blacks and only nine

whites to 272 blacks and 192 whites, going up almost 50—50 
percentage there.

d All right. Now, what school was Beil paired
with?



Dr. Deary - Direct 1767

' was paired with Clifton Hills. You aoe the
-D- there in the "C" section, see across the Chattanooga 

total black to a practically ail white coouiunity. 
w Going hack to the Orchard Knob elementary, what
scnools were included in that cluster?

I ;
h 1 think Ridged ale. Oak Grove, iiemlocx, highland
Park, I am not exactly sure.

THE COURT: eighteen and 27?
THE WITNESS: It’s in the Highland Park area

there.

t All right. Now, identify the next elementary
i

school that is majority black or was the majority black last 
year.

A Smith School, 297 black to one white, going to
143 brack to 103 white, 58.42 per cent.
v All right. Now, where were the students, white
students for Smith, where did you find these students to pair 
with Smith?

i
a The Smith students came from the Pineville area
across the river. This is one exception to our non—contiguous 
area, that is 25 on the map, 25 to 30, that's that long area 
there.

how long?
a Most of the people living fairly close to the
school. This is one area where they have been transporting



i

U r . henry - Direct x/t"

£racl up on the top of it in the recently annexed area, a 
tuv students that are transferred. I »ean that are transported, 
v Did the Chattanooga Board locate Pineville ochooi

in its present location?
No. Pineville was a recently annexed school.
a 4*- wa* not the result of any Boardsirailar to Riverroont, it was nor

action.
was Pineville. what was the racial composition

or Pineville when it came into the City school System?

h Totally white.
M l  right, how. whst is the next elementary

school?
A Piney Woods. 3U7 blacks and one white, would go

a 50-50 situation there, to 266 black and 306 white, almost a
M l  right. What school was Piney woods paired

with for the purpose of desegregation?
well, actually we consolidated and then paired.

we took m  26 and we took the Trotter schoox and the Piney
woods students, the black section of that, and then the
cedar M il and the East bake portion there, so you are
pairing East bake, really Cedar Hill together with Trotter

. pinev 'woods is the newest lxiilciing. mostana Piney *<oods. Piney *oou®
centrally located to that area.

■jHE COURT; would you explain again what you

propose in that area, Dr. Henry?



75 or. iienry - Direct 1769

I!

T a r e  4

TILL WITNESS: .veil, to utilize economically, of
course, trie lest use oi the building there, we round the 
Trotter Scnooi ana the Piney Woods school relatively close

t

together. We could put the students all in tne Piney Woods 
School and over on the other side the Cedar Hill and the

|uast LaKe all he in one, so actually we want to close two of 
the schools there, this is economically more ieasihie to us
close the two schools and to pair the resulting combination

ij of Piney woods with the resulting combination in hast hake, 
u Why did you choose to close the Trotter bchoolV

iti
well, oi course, it was the older building, at 

one time was a white school there and the Alton Park area-
l! j

Piney woods is a much newer building and was closer to the 
tast hake area there also.
w Why did you choose to close the Cedar Hill School?!
A Cedar Hill was a very small building and also
there was a need, we wanted to close the historic Sanderson, | 
which is a very old building, we felt that Cedar liiil would 
o e  a ver> good place, 
v All right.
A We had thought of this prior to this case also,
the closing oi Cedar Hill.
h To illustrate a general point, was transportation ‘
indicated at these schools?
A Yes, sir, it was primarily because of the

1I



Dr. Henry - Direct 1770
Chattanooga Creek area there, it's very unsafe, and actually 
I don't think, there are only two ways to cross and in those 
only 38th street and Hooker Road, without sidewalks, it's a 
very dangerous area and safety would demand transportation.
0 Ail right. Was an effort made to determine the
number of students that would be transported? 
a Yes, about half, we felt that the students
remaining in the area, of course, we chose a mile and a half 
as the distance to transport students in the physical area 
there, the physical danger there, of course, would get more 
of them, it would be about 50 per cent of both student bodies, 
c All right. Did you assign this particular part
of the analysis to a member of your staff?
A Yes.
d Whose responsibility was this?
A Mr. Taylor,
d With regard to busing?
a Not no. I am sorry, I thought you meant
statistical data. Mr. McCullough with regard to busing,
d was this busing planned?
A That's Mr. McCullough's staff, assistant
superintendent of that area.
v. This student transportation, is this from school
to school or from home to heme?
A Our proposal to make it economically feasible

• -  f- s A r f N N E S S E f



ut. iu s u r y  -  d i r e c t 1771
ouici lx; a safety factor, would be from school to school.

bid Hr. McCullough after this analysis or in the 
,-/<x USA oi tnio analysis determine a number of buses that he 
thought would be required?
a Yes, he did.

bid Mr. McCullough also determine the financial 
needs, other than for the capital requirement?
A Yes. he attempted to, to the best of his knowledge
w Now, is there any other elementary sciiool that is
majority black at the present time that we have not discussed? 
A  Not as such, other than the schools there at the
bottom of exhibit 142 that were closed.
1 1 see. why was /oanicola, why was tne decision
maae to close Aianicola?
a Of course, it's a very small school, educationally
I feel it is unsound to operate a school with this few 
students or the projected students in the future, we tliink 
this is yoiny down with a year's time there will be approxi­
mately no one left in that community, 
w All right.
A  It would effect a better desegregation of the
other schools.
Q What other schools are to be closed under this
plan n  approved?

Cedar Hill was another small school, 174, and



Dr. Henry Direct j.772
economically we felt we Had bettor use tor the DUildlny. 
u All right.

'' And then Davenport, a very old building, the old
Jefferson street School, we felt it was unsafe, regardless ot 
what happens we want to close this school.
‘w All right. What about the Glenwood School, why
do you propose closing it?
a Glenwood, of course, is an old school al3o, it's
very close to the Missionary Ridge area there. We can* t 
transport those, it's close to the hospital area there, it’s 
also very small, not as analI as some.
d All right. Wow, the plaintiff also objected to
tiie fact that the fair to five schools that have been closed 
are in black. neighborhoods. Do you have any response to
that?

A Well, other than what the plaintiff has said ail
along, that we have left the schools, tiie older white schools 
to the block people, and this would be something, I thought 
would be something that would be desirable to close these 
older schools in these areas.
O. bo then are you saying it is the age ox tiie
school that is the deciding factor?
a Age and the capacity of the building and, really,
its location, as in the Glenwood area, and the location of 
the hospital and the possibility of use of that building by



î r. Henry - Direct
1773

t-iiu hospital in tiie future.

/kXI Now. agaill back to th« tarin
Vifectively desegregating". and drawing youi attention to 
tae junior high schools, what is the explanation fox the fact 
tnat iiaruy is not tore effectively desegregated?

iiar<iy iS 0410 of those scnools that at one time 
was effective, had actually a 50-50 ratio and by movement of
iX3°ple ^  th" COaiauriity actually it's going to a 73 ulack to 
27 white. we feel this was not the resuit of hoard action.
this xe the result of people moving from one coraounity to
anothei.

v.e attempted to get as many whites as possible 
witnout having to transport them long distances or not from 
one contiguous zone, this we felt was within range. 73-27.

All right. I f  you were required to have more 
whites at Hardy where would you go to get them?

We WOuid actually— we did close part of the iu.ge * 
section, that peculiar section of the Ridge into this area, 
oi course, it didn't give us many students, we would have to ! 
go across Uie Ridge into the Brainerd area.

 ̂ Dr* IienrY* 1 call your attention to a map entitled
"Junior High attendance Zones". would you make this inhibit j 

to your testimony?
A lee. sir.

(The junior high attendance icnes 
fiiap referred to above was marked

i



I

Dr- henry
Li 74

•.̂ hihit No. L4-i Cor ivWiiUil^Uoa 
ana received in ovxuenca. '

-  D i r e c t

wow, I believe that Hardy Junior high ocliov.>i i»

gone C
h *©«•

I s  tnat correct?
„ That* e right.

if you were to yet oore whites where did you say

you would go?
you would have to go out into the liraxneru area.
flcross the Ridge and into Braxnerd?
Across the Ridge, across another zone, you would

nave to leapfrog a non-contiyuous zone.
That is the only direction in which you could go? j 
well, any direction you go you run into canpli- ,

cation., what affects one will affect another, i f. a ahiftiny I 
oi u »  around. Vou could go down into the Kidyodale-uiglUand 
Park area. Out that is cloaer to another black contiguous 
zone there or. of course, you could go back across the rrvor.

whicn would not be feasible at all.
,dl right. Now. I believe the next junior high

school that the plaintiffs objects to the racial siixture rs

Daiewood.
it Daiewood.

It's C?



br. huxiry - direct -> , _

* Twenty-nine per cent there. as I recall, we think
that xn actuality right now actually it's probably above 10 
per cent, which would remove it supposedly from the objection, 
.ve feel that on apartment complex being built in that section 
right now will more than move this up into the 30 per cent
area axiti wiil take care of itself in tixiie. This is another
area.

What is the statistics, what were the statistics 
at balewooa last year on the black-white basis?
'* balefwood last year had 105 ulacxs, 470 whites,
or 10 to 82 per cent. This year under the proposed change
would be 29 to 71, in actuality I think this will jun$, above
30.

v lias there been any trend m  the racial composition
of the feeder elementary schools in Dalewood in recent years?

les. hastdale, one of the areas moving rapidly 
toward becoming ail black and—

(interposing) Is there any substantial building 
of apartments otherwise in the Eaatdale area now?

Yes, there is an apartment complex being con­
structed tiiere which wiil increase this percentage.

Xhon it will be above the magical 30 per cent?
Kight. This is our assumption, of course, not 

necessarily it wiil be a black apartment complex out tiiere 
are many moving in this area, many blacks.



o r .  h e n r y  -  D i r e c t 1776
iiii right. bow, the other junior high that the 

plaintiff has oojected to is Libert Long. would you identify 
it on the map?
A nlbert Long, of course, is out here in the far
extremities. This again is a very email group, I think.
there's only 166 total student body there. we would eventually

.iijvO to change this and just either make it an all elementary 
school or ail junior high school. The two schools, elementary 
and junior high in the building there, this 166, we did not

jbother with this because this was not part oi the ouul scnooi 
system.

,>11 right. i
a not a result oi hoard action.
g If you were directed to increase the nuiaoer of
nlac*. students at Libert Long where would you go to get them? 
h well, presently we would have to go downtown into
the core area. We are looiiiug forward to annexation, there 
is a group of blacks there in the Chickamauga area that we 
would zone them into that school.

All right. Now, directing your attention to the 
junior high schools, who during the past year have had a 
majority oi blacks, would you identify those, other Uan the 
ones you have already mentioned?
^ You mean that are rnajority black?

Black.



Dr. Henry - Direct. 1777.
' Alton Park, of course, is 550 ulacks, ir4 whites,
a t ,  l a x  a s  desegregation goes it's quite am in̂ pxovcaiiunt uv«u 
635 oiacks and seven whites, 62 to 50 per cent. In that area 
m  that community, you have very limited or in that extended 
community in that area south of Douth Chattanooga there, the 
logical section, it's very hard to get many whites from the 
~ast lake and St. Elmo area itself, you woulu have to go to 
the extremities to get the next section there, is the hast 
Fifth street, hast Fifth Street School corresponds to 
practically this with Clara Carpenter and the same thing 
applies to Clara Carpenter applies to Hast Fifth. This is 
a community. of course, as far as housing is concerned, as 
f a r  as resioentral area, it is thought this will be gone soon 
d where did you go to get enough white students
to increase the percentage in the East Fifth to 36 per cent?
A Well, there are very few in that area over toward
the center section of town past tocCaliie, maybe a few, but 
basically went out into the Aianicola area ana took all whites 
from that area and proposed busing them to the East Fifth 
drod*
b Wow, East Fifth—
a (Interposing) Plus, now, we went across the
river.

v fhia is the junior high?
A The junior high, we went across the river there



177b
to tiie Brown School there and the Pineville area also.

>.xii businy be required in that area?
A ifes, we would have to.
- All right.

In I net, tie Pineville people are already being, 
I am sorry. I made a mistake about Pinevrlle. I was ^  OI,
tne elementary senools. Out tie junior high level, drown ane 
tne Pinevrxie area there.

Air right. NOW, let's Shift to Orchard Knot, 
ouoior .Ugh School, .hat is the change proposed there?

O rchard  J n n r o r  High s c h o o l went irai a e r o

w h ite  up t o  164  White, in  other words. 6 2 -1 8  p e r  c e n t  w h ite  

er,o b l a c k s . T h is  i s  th e  yellow  th e r e  in  th e  c e n t e r .  t tU s

IS tailing up parts of zones of Orchard knob and the Highland 
Park arud there.

hr. henry, what rs the prediction or projection 
with reference to the next year as to tne black-white ratro 
ol the total junior high school population?

The total there would he 52 per cent black. 4b 
per cent white.

Under those circumstances would it be possible 
to co away with ail of the all black schools, I Infcan?

1 don't see how we could do it, rearly, not 
statistically feasible.

would rt remain a majority school or minority

i'X. Henry - Direct



Dr. nenry - uirect LTl'J

school?
That's right, taking all things into consiueutiun 

other than just mathematically dolsig it.
All right. i»cw( I direct your attention to 

Lookout Junior iLigh School. Do you propose LooKout Junior 
Hign school will he cloased?
a Yes, we did for this reason, I'm trying to get
same whites into the Alton lark area, Alton lark, is u new 
school, air conditioned, relatively new school, has a large 
capacity and actually trying to get some whites into that 
building. The Lookout building is rather old ana, of course, 
it's a matter of economically being feasible, too. it is the 
cost oi operating buildings with a minimum of students, guite 
a savings in money there-

Alton Park Junior High school, the only whites 
we could get other than St. tiltao would be in the Last Lake 
ar̂ cx, unless you went, of course, way across town to the 
extremities to bring people into it, so it's a matter of 
attempting to get numbers of whites into the area, 02-38 
is not too high but taking out the St. Llrto people you would 
have lowered it, even though you would have kept a repre­
sentative balance, a fairly good balance at Lookout Junior 
high. This was our thinking arid some of these things can be 
adjusted. ..eally, 1 frankly like to have more time to loo*, 
into the situation because I axa sure in the short time that



Dr- iionry - Direct 17bo
tiiae  t h a t  we w ere allow ed  t o  p re p a re  t h i s  t h a t  wu p io b a h ly  

have o v e rlo o k e d  scEae th in g s  and t h a t  have c r e a t e d  ouiue 

i n e q u a l i t i e s .

I  know sp eak in g  from  th e  s t a f f  p o in t  we would  

l i k e  t o  work on some o f  th e s e  th in g s  more and have f r e e ­

dom t o  lo o k  i n t o  th e s e  a r e a s  and make some a d ju s tm e n ts .

D r* lienry , o b je c t io n s  have a l s o  been made t o  th e  

j-a c t t h a t  th e  ju n io r  h igh  s c h o o ls  t h a t  a re  p red o m in an tly  

w h ite  now o r  th e  r a a jo r i ty  w h ite  w i l l  rem ain  m a jo r i ty  w h ite  

under th e  p la n  a s  p ro p o sed .

•tould you g iv e  th e  e x p la n a tio n  o f t h a t  r e s u l t ?

A w e ll , th e r e  a g a in  you go hack  to  th e  th in g , g iv e n

th e  s h o r t  p e r io d  o f  tim e , we a r e  n o t t a l x i n g  about l th e  

tinte oack  in  th e  p a s t ,  t u t  a f t e r  th e  c o u r t  h e a rin g  and t-h<a 

C ou rt o rd e r  we b ased  ou r th in k in g  upon e le m e n ta ry  z o n e s , 

sim ply what would be f e a s i b l e  t o  s t a r t  s ch o o l in  D eptem ber, 

p eo p le  knowing w here th e y  l i v e  in  t h i s  s i t u a t i o n ,  so  you g e t  j 

in to  neighborhood c o n c e p ts , w h eth er t h i s  i s  l e g i t i m a t e  o r  

n o t , bu t th e  b a s is  f o r  p e o p le  a tte n d in g  th e  v a r io u s  ju n io r  

high s c h o o ls , w q  t r i e d  t o  have a minimum o f t r a v e l ,  m axim ized  

d e s e g r e g a tio n , bu t m inim ized t r a v e l  and e x p e i.se , a tte m p tin g  

t o  loajce i t  f e a s i b l e  and re a s o n a b le  and e c o n o m ica lly  sound, 

a s  well as  e d u c a t io n a lly  sound, and in  t h a t  sen se  in  some o f  

tile outlying ju n io r  h igh  s c h o o ls  you w i l l  have a r a a jo r i ty  o f  

white, in  th e  downtown s e c t i o n  you would s t i l l  have some



j l  • -ei.ry - Jiroct L 7iii

majority black using this criteria.
Ur. iierury, I direct your attention to a  map 

1 untied "senior iligh .xttenuancc Zoikjs" , would you m.w*e this 
bxnioit 145 to your testimony?

Yes.

(The map entitled "senior High School 
/attendance Zones" was marked uxliibit 
bo. 145 for identification ana 
received in evidence.)

v: bow, the objections with regard to the high
schools was that— the first objection is that the City and 
Braixverd, I assume that Mr. williams is not including Kirkiuan 
since I understood that this was not a part of the litigation, 
that City and brainerd continued to nouse a white luxjority 
when the plan is implemented, would you explain that? 
o well, I think Chattanooga High school, you have
*P*-a6 percentage blacks to white, I assume it's a very close 
situation there. The basic objection tnat I see here would 
ue une 70-30 Howard and the 60-32 at Riverside.
« **hat is the total projected black-white?
A 52.40.

Fifty-two black?
A Firty-two black, 40 white.
 ̂ Does that include tuition students?
A ho, it does not.

Approximately how many tuition students did you



i J l . tiCsary - Direct 1 7 8 2

s
ii

> '  i'i

r-» |l
!i

tevc .Lost year in tto high schools. approximately?
Approximately I imagine a littlo below a tboueaml. 
Aii rignt. NOW, wliat is the explanation tor only

jO per cent white at Howard?
„eli. there again you wiii notice on the map.

attesting again to minimise the distance that people -ouid 
travel there, you would have to go-well, to Keep seem hind 
of a toned area there you would have to go iar across town 
to yet people into tint area and using a c^terminai type 
ot situation there, using the schools, husicaily U s  junior 
high schools, normally which would teed into that area, the 
exception there would he north ot the river, to get hlachs 
to Chattanooga High School we did dip into that, we actually 
toliowed tie plaintiffs' expert, mich ot his direction in 
that in attempting to get that percentage, but our percentages 
uru not come out as well. Bit there is some oi Ute direction 
that we tool, for that, hut it is basically an extension ot 
the neighborhood concept there, trying to xeep people closer

to the scliool.
all right, assuming that you were under a 

directive to have 50-50 in each one or the high schools, 
where would you go to get the more white students to increase 
tire percentage at Howard iron, 3o to 50. where wound you go.

what, was the adjacent area?
weil. i iniagine it wouxd ue going into tne

H HI" % LHf S SO H »V. h,NC
K fc > f  * *■



iS'j Liz. Henry - Direct. .7 8 3

i !

Brainord area there, into tne Barger area.

Lt Could you go north?

A  Or across the river,

g Could you go north?

A  well, it would be difficulty because there is a

possibility, you could go north or you could go east, 

w In the area imaediately north at Howard, oi the

Howard rone, are there any white students? 

a. No, no. You would have to leapfrog or have

pockets. I have never seen a school, ay a tern zoned like this 

into pockets and things, it would not be too feasible.

1  Hew far would you have to go north to get

additional white students to put into Howard?

A  You would have to go ail away across the river

into the Normal Park area there, the extreme top or the map. 

w All right. New, I direct your attention to the

adjacent area between downtown Chattanooga and Missionary 

Ridge ana to the north of the Howard zone that is shown on 

the map. Are there white students in tnat area?

A You mean in the yellow area there?

u Yes.

n Yes, there are pockets of whites in the bast

Chattanooga area there to the north and then, of course, 

that's tlie Riverside school zone dipped into the Highland 

Park area there dividing the whites between Howard and
‘t l A  d  S «  A ' - 1' A > 0  t s

m  r



Direct 176490 Dr. Henry -

Riverside. • : , ,  •  K  ■  V

W till right.
A Then tor the Brainerd area on tlie outaioe.
’J Just a minute.
A [accuse ne.
S . : Dr. Henry, if you move into the Highland Park
area and zone that to Howard to increase the black-white, 
tiie white ratio to 50 per cent, what would that do to the 

i1 white students zoned under this plan at Riverside, whnt would
i'

i- that do to the white population at Riverside?
||
i! A Of course, it would decrease it.I|
ijj; Q Then what are your alternatives, what would be
!

your alternatives under a 50-50 plan if this was ordered?
>v Well, you would have to put thin zone lines, you
would have to go into the Brainerd area there pulling, well, 
you wouid have to put a long slim line from the north probably 
into the Brainerd area to the Woockaore area and into the 
Barger area for Howard and then you would have to have a 
peculiar looking zone, a bj^arre-looking zone, you wouid have

i;
to go in that because you are picking up blacks with whites 

| as you move through Eaatdale and the Sunnyside area, so you
Ij have to go into the core city and pick up store blacks for 

that to give you any kind of balance of the situation at 
Brainerd, it would be a very bizarre setup.

I
New, at Riverside under tlie proposed plan what

!;
R  HA- ’J C  6k C A f c £ v  B  S M  T H  A N C  A  -  S O  v • A T P S  

. t P T l F ' E D  S m O * y >- a N D  » f c P O P T f c . » S  

B E F E . R E N  e  M A R  T ' N O  A L E  - M i j  P  0 1  e



17(3591 Dr. Henry - Direct

ii!'• II

would be the racial composition? 
A At Riverside?
'u Yea.
A I think it is 68 blacks. 32 per cent white.
Q All right. Now, what if you were under an order
to increase that percentage from 32 per cent to 50 per cent, 
at the sane tine increasing the percentage of whites at 
Howard from 30 to 50, what kind of alternative would you be 
presented with?
A Well, of course, ycai would have to cross the
river in one direction there, you would have to go into the 
Brainerd area, pull them out from that, 
w Could you stick to contiguous zoning?
A No, you would have to leapfrog. Well, you
wouldn’t have to but as you move to get the whites, of 
course, you would pick up blacks at the same time. The 
capactiy of the buildings have to be considered.
U In what area do you do that?
A Take the gold area there, E in Riverside, you
move across the Ridge area there to pick up whites, you ntove 
through Eaatdale, which is becoming blacker all of the time 
and you pick up large numbers of blacks with whites, of 
course, you could have in this situation another alternative, 
w in c h  would be the blacks going to one school ana whites 
going to another school.

A ■- • B  S M  ' rt A .  A  . , < j .  

M  • * l O U  F ►. A 1 U  r ■ • •
K l  N ' f l A P  r •• «- •< Fal l



D r .  H e n r y  -  D i r e c t . 173C

- All right. Moving away from student desegregation
into tlx* other objections that the plaintiff has set forth 
W1th regard to faculty and staff, what is the explanation or 
answer to their objection that states that the plan tails to 
include a provision requiring the defendants to recruit 
affirmutiveiy black teachers and staff members so as to briny 
the respective ratios of black to white teachers and staff 
Hi the 3chooi system up to that of the black to wielte students! 
in the entire school system and maxntaiia sarae at that level?

I
A That's quite a bit at one time.
•w In effect?
A Back up.
U What is the plan new proposed with reference to
faculty on the black-white ratio?
A Well, the same ratio we get the 10th day of last
year, we wanted to approximate this in all schools in order 
to continue, we didn't knew whether to continue to do this 
or to recruit people.
v. You mean the ratio of faculty members?
A Yes.

i

b Does this have any relationship?
A We have been recruiting ail along for some time
to got bracks.

iw But the ratio of Hack and white faculty members,
does tills have any relationship to the black-white student

R ' C H I B C  fk C A S E '  8  S M I T H  a n . a T F S

'  ► WTi  f eD S M O » * h A N t )  H K ’ O A H . B - ,

R E F E R f c N i F  M A M  1 N O  A Lfe - - U 9 B I



Dr. henry - Direct 1787

V

ratio?
A ^o. we hadn't tied the two toother.

/JLl right. What ia your answer, what xs the 
Board's answer to the objection that the plan failed to 
include provisions to eliminate and prohibit defendants from 
tiu, practice of assigning raore cc«apetent and experienced 
uxack teachers to formerly white schools and assigning and 
retaining less competent inexperienced white *nd eiack

teachers in formerly black schools?
I don't have any answer to that. I don't know

how you do that, frankly, as an educator, I think this is 

more supposition.
have you assigned black teachers to formerly

white schools that on the basis that they are -ore experienced

and coupetent or have you not?
1 have not. We haven't distinguished in any way

or used race in that direction.
„ould you state your policy with reterence to

tiie assignment oi teachers with reference to their race and

their cappetency?
A well, we have attempted to got more blacks into

White schools and whites into black scnools until we have 
approximated a 50-50 percentage. Thro, I inxlerstood. was the 
soar! policy for ease trie, and also attempting to get the 
ixist persons we could find tor the job was our primary

,  A * .  fx C A - ' f c '  B  S * A V - d l .  

r*fct



D r .  H e n r y  -  D i r e c t 1788

direction and, of course, in doing this we have had to recruit 

blacics for some time.
Another objection is that tlie plan laris to 

contain any requirement or legal safeguard to protect black 
students, black children subjected to white classroom teachers 
Irani several thrngs, the first rs to protect them so that 
black cultural differences will not be viewed as a reflection j 

of inferiority.
Do you know of any plan to deal with that problem?

i

A well, we. of course, we don't admit taut this
exists. I mean more than it would in any other students, poor 
or deprived background, white or black. Of course, as an 
instrueturai part of the educational part we try to work to | 
eliminate tilings of this nature at all times, we try to work ,

i
with individuals, with students, in the individually pre­
scribed manner. Of course, you may have, in going on this 
feeling auout individual teachers, this is soaethirxj we 
ccmbat every time wo can in our instructural department.
> Or that intelligence test and achievement test

r e s u l t s  will not be systematically interpreted to the 

detriment of black students?
A No, definitely not.
, &re black students given adequate sympathetic and
non-discriminatory academic and/or vocational counseling?
A well, we have attempted to do this. I can't say j

R . .  H A f f U  f t  f  A!»»  • 8  S M  • T» .  A N D  A  - . S O .  » * S

,  f  p r , )  ■

M A R T I N I ) * - ,  t- •• B  6  l .



9 5 Ur. Henry - Diroot
1739 ?

“  “ • PCr£aCt> * " ■  it. but w* discriminate i

^  “ith the white students. ! »  3uru. it j \ 
is a matter of supposition. )

. A

rhe last objection on this point is that special j * 
precautions be taken to eliminate the possibility that white i '
teachers* slow expectancies of black people will not result i 
rn lowered acadaaic achievement for black students. I '

ilave you taken any precautions on this Irne or I ! 
<io you Know of aiiy that can jju taken?

r° r,7y Kn0wifxiyu' 1 "«Y knowledge" admittedly
is malted, i think that would be extremely difficult to do.

work at soinethiny like this constantly with ail students, 
not just sijuply racially, blacks and whites, but this is 
something that we have to work with with oil teachers.

v Mow, Dr. ilenry. after the Board plan was submitter
on June the 16th and after receiving the Court's amended 
order of June the 29th. did the staff in the School Board 
attempt to review the plan of June the 16th. 19717

TUL COURT: You are going into a new area.
Perhaps this would be an appropriate place to break for the
noon recess.

MR. WITT: Yes.

niL COUKT. Anything to take up before we take
the noon recess? if not up wni Kn i ̂not we wiii be xn recess until one o'clock.

MR. WILLIAMS* May it please your Honor, it came
’ ^  S M i ' i a n t  A , . ,  

• ‘ ■•O*- A N D



Dr. Henry - Direct 1790
• *

i i

to ray mind that in the cross examination of Dr. Henry that 
! «ould need the materials that I requested in >v subpoena 
and it the court is going to make any final ruling on that 
it might be helpful and timesaving if it could be made at

tills time.
the coma: all right, well. 1 bolievo that at

the present time my previous ruling will stand, bef s be in

recess.
(Thereupon, at 11:58 o'clock a.nu court was 

adjourned for the noon recess.)

1:00 O'clock P.H. 
July 18, 1971

(Thereupon, pursuant to adjournment for the noon

recoss, court was in session.)
wi lyaaiYs

a witness called at the instance of the defendants, having 
been previously duly sworn, resumed the witness stand and

testified further as follows:
DlRiiCT EXAMXHATICtti (CONTINUED)

u

r,v  M R . W I T T ; .

Dr. Henry, when was the Kivexmont and Pineville

Schools, when did they come into the school system?
! thrnk it was two years ago. approximately two

years ago. since the court action.
A - soR i C H A R -  f t r - A 3 t V  B  S *  ' H * N

C f . R » ! F ' E C  S H O R T H A N D  » f c P O R i f c . H * r  

B K f t R F N C E  M A R T ' N f i A i . E  j  8 & E  - u



97
'ox. iienry - Direct

1791

a
‘J

Ẑ±ght- What v“  “ »ir racial ocspoeitron
"b“ ' tll0y - *“" t «* « -  Cif/ School system

All white.

-Cli right. Now. under the proposed plan will 
hiVermont be desegregated?

yes. there will ne nlacns thore.
Viili Pineviile bo desegregated?
Yes, sir.

you iuiow if any continued evidence ox State-
xwposod segregation will exist it R<t®xlst at ^Vermont and Vinevrlle
at ter plan is ii%iltsnanted?
A Do.

did the Board in any way through any at its 
notions create the racial segregation at Pineville or Siven* n b  

Do, sir.

Ail right, how. what is the racial coc^aitroc
ot Avondaie and clenwood at the clo^ ot this last school
year?

At the last of the school year practically a 
liundred per cent hlach. it was one white in Avondaie.
Avondale anc Glenwood.
G Yes.

A Une white at Glenwood nnc uhuuiiwooa, one white at Avondale and
two whxte at Glenwood.

n

All right. Did the Boarvt no *ao<srd, as tar as you know, do
»' "-A«c, a C.»V b Smith ant associatfs 

M t r  »w o p  r H * N ' - w t - p e u r t r * . ,  

i ► p f t N  f  M * n . N | , A , ( i 9&.



Dr. nenry - Direct 17'J2

anyt,u.ng to cause the racial composition or those cwo schools
to be tit.it way?

MR. WILLIAMS: I object to that, if your honor
please. Those Matters have already been determined by tlie 
Court.

|TIlfc. COURT: Hot with respect to individual
t

school3 , I oon't believe. He may answer.
MR. WILLIAMS: I except.

A v/hen we did away with the dual zones and went
onto tixe unitary zones these were basically white schools

■

and due to the movement of the people from one ccsiaunity to j
another these have become, in effect, all black schools. I 
don't think the Board had anything to do with the nousing, 
v /til right. Now, I direct your attention to Brown, ;I
i-ai.Ldale, Garber and Sunnyside. You will recall that Ur.
btoiee's plan emitted those four schools from has deoegrega— ;|
tion plan, apparently on the assumption that they were 
satisfactorily desegregated.
A Yes, sir, evidently, ascribed to the 30-70
cutoff.
w Did the Board have anything to do with the
creation of that 10 to 70 per cent ratio?
A No, sir; no, sir, we did not.
u all right. Now, may I call your attention to
the zuciai cataĵ osition last year of these four schools,

P  • M  A w . ** C  * ̂  t B  5- M  ' A N  A  - - A'f-N
• ( H I  i f  • ► . !>»<OB P C  *i :• R t ,

Wt  » 1 R f  N . t M * R '  f . l  r  H n h B t



L)r- Henry - Direct i793

Hemlock. Ook Grove. Ridyedalo and St. Liao? Now. what is 
the racial coqposition o£ Hsmlock as of last year?

A Hemlock last year. 66 black. 195 white. 40 black,
u0 per cent white.

All right. Did the Board have anything to do 
with that racial composition?

MR. WILLIAMS: 1 object. lie can’t possibly know
what the Board has had. lie has only been superintendent a 
year or so. if your Honor please. This question xs highly 
incompetent. That is a conclusion for the Court to draw as 
to what the Board had to do or not to do with segregation.

THL COURT: He may state to the* extent of his
Knowledge.

Well, as far as X know, having lived in this 
community all my life and it was basically a white neighbor- | 
hood at one time and the movement of people has created the 
situation where blacks have moved into that coranunity and 
caused these numbers to exist and this percentage, notlxing 
the Board did that I know of.

d I direct your attention to the Oak Grove racial
composition in 1970-71, next to the top.

A Ali ri^t. Oak Grove, 1970-71, 67 blacks. 25 7
whites, 21-79 per cent.

All right. I ask you the same question to 
extent ot your knowledge with regard to Oak Grove, as I asked

* * !;■ '  13 -



or. iionry - Direct 1794

you to Hemlock, do you know How tills came aoout or if the
Board caused it?

v<ell, having lived in tills conraunity all ray life 
I ar.i familiar with that coraraunity. It was basically an ail 
white neigliborhood for many years.

MR. WTLuLlAMS: I object to this, if your Honor
please. Tliis is not competent.

IIIL COURT; Well, he may answer.
"U All right. With reference to the kidyeclale
school, what was its racial composition last year?
A Kidgedale, 32 blacks, 252 win to.
V Can you explain this, the cause of this racial
composition?
h Not on the basis of any Board action.
t ail right.
i\ Other than people moving into that area.
w All right. What about it. ulrvo?
A The same thing in that respect. 54 blacks, 322
white.
C /ill right. How, under the plan—
i  \ (Interposing) I take that back on St. hlrao.
there may have been same outer extremes there at Chattanooga 
elementary uchool which closed there.
w All rught. Now, with reference to the schools
that we have described under the new plan will desegregation

r3. i . - A W ,  3  C *  €. V B  3 M  »'H * N ?  A > i O  A , t



i d Dr. Hoary - Direct 1795

i . ii

:i|1 ii

be m c r  eased?

A Will desegregation be increased?
0 Yes.
A Very del m i  tel y.
Q All right. Let's do them one at a time. What
about HiVermont?
A RiVermont, of course, will go from zero to 12
per cent black.
u how many students?
A It will go from zero to 74 blacks,
w what about Pineville?
A Pineville will go from zero blacks to 146 blacks,
b All right. And Avondale?
A Avondale will go from one white to 190 white.
it Glenwood will be closed, I believe?
A Yes.
v All right. Brown?
a  Brown will go from 121 black to 118 blacks.
v Is there any Single instance among the schools
that we have listed in which the desegregation under the new 
plan will not be substantially increased?
A Only one that I know of, and that's Sunnyside,
w And you have given the explanation for that, I
believe.

A Yes.
6  3 M  • 4 N  A

n  A \  j HI

n  t  *•?*?(■ N • h M A



Dr. Henry - Direct 1790

New, Dr. Henry, you will recall receiving the 
order of the Court with regard to the June 29th and the 
direction to review the June 16th plan of desegregation, you 
recall receiving that?
A Yes, sir.

U All right, as a result of this order from the
Court to tne Board, did the Board review toe plan? 
a Yes, srr, thoy did.
y /aid as a result of the review did the Board
amend its June 16th plan with regard to student desegregation i( 
A You mean the—

MR. WILLIAMS: (Interposing) I object to all of
tiu.3 leading, if your Honor please, just taking him through 
it just like playing the piano.

THE COURT: Sustain the objection as to the form
of the question.
Q Dr. Henry, just to make certain, I hand you the

i

amended desegregation plan of the Chattanooga public schools, 
dated June 16, 1971.
A  Yes, sir.
Q Prepared by the Chattanooga public schools, and
asK. you to make it an exhibit to your testimony.

THE COURT: One hundred forty-six.
(The amended desegregation plan dated 
June 16, 1971, referred to above was; 
marked Exhibit No. 146 for identifi­
cation and received in evidence.)

H  \ d  . • V B  b M l T ^  A N- A - .J *■•••
• T f , - . t- . , » M )  t , f [ >

. Bo I



1797
103

Now, Dr. Henry, as a result of the Board's review 
°f tlie plan 33 Erected by the Court, did the Board amend the 
i-lon wrth regard to tlie student desegregation?
‘‘ well, I ain not sure exactly, we did ask for a

of tiie situation, as far as amending the plant itself,
no.

what did tiie Board ask for?

/V As £ar as to look at the feasibility of the
situation within the time limits given.

i
~ And as a result of that, what did you do?

1 went to Uie n»emfaers of my staff and asked them 
to xook into the situation as far as the feasibility of suc­
cessfully implementing the plan within the time limit allowed 
tor August 31st, for the beginning of school, I asked each of j 
tlie department heads and the divisions to draw up an affidavit! 
as to what they thought of the situation within the time limit 
ana to see what the possibilities would be of successfully j 
implementing the plan if it were adopted.

Did the Board make a decision with regard to time I
;and what was it?

Yes. As far as time was concerned they concurred ■ 
Wita the sta£f that Simply we did not have time to success-; 
tuxiy implement the program, that singly was not feasible 
iruni several different directions.

All right. You used the term "successful
‘ - A ’- -1 ‘  a t » b  S m  f . a n . .  a  ,  •. s

u t *  ' f t ' 5 " O R  'k * M '
R F  ► t  Rfc N t  *j* A S I  K .  -.A t.

or. Henry - Diruct



Ux. .ienry - Direct i. /9U

integration" or to “successfully complete the plan". Would 
you loirul telling the Court what you mean when you uao this 
language?
A Well, of course, the number one, going back to
just the mechanics of carrying out the process and the program 
that wc propose would definitely require busing and irons what 
we could get from Mr. McCullough's division we simply couiu 
not get the buses witliin the requirou tiine and which would 
make it almost impossible to carry out the elementary ai*i the 
junior nigh part oi the program before school started, so, 
therefore, we proposed to the Board ana they accepted that 
we ask that we be allowed the time to get the buses,is what 
it .xountec to, up until the *72-73 school year.
(j All right. What other reasons were identified?
A „ell, still in Mr. McCullough's area the business
of really setting up transportation program, we have had a 
limited transportation system, we are unfamiliar with the 
transportation setup, it's a very laborious experience going 
tiirough and setting up the maintenance departments, hiring 
tac- arivera, drawing up the routes the bus would taite and 
tins sort of tning and I am totally unfamiliar. 1 think Mr. 
McCullough has an affidavit to this effect telling will of the 
problems.

Also again in tir. McCullough's area, the business 
oi the cost oi the bus, we are not authorised to— this would

b  i « b  t ' P  s  m  • H a  n  a  * »s  ■: "

r M » . A- -  M F  W t - , -

•»{ ••



D r .  h e n r y  -  D i r e c t 733105

r ape 5

be a capital outlay for the cost of buses and we are 
dependent upon the City Cacraission for this type of laoney 
for capital outlay and going through the whole process there 
we really don't have the authority at this time to order the
Duses.
t la it possible to implement the plan with regard
co the junior high ami elementary schools without adcL-tioiral 
buses?
/» ho.
v assuming that you had the funds, do you knew
when tiiese buses could be delivered?
A hell, according to Hr. McCullough's affidavit,

i i soije would be coming in as early as November if we could

i i
Ji

have ordered then last week, this is all spelled out in his i
affidavit, more than likely it would be the first of the
year.

it Would you identify any other reasons why the
deruy is necessary?
A '.veil, of course, we have to Knew which schools
to close if this is in debate here, closing some schools, 
the uusiness of identifying where the first three grades 
will be ana four, five arid sixth grades, the business of 
moving furniture and equipment, these are ail mechanical 
tilings that 3iiapiy oust take place.

Vvhat about the federal program?
R  I C. H *  K : r t  -  a •1 B  5 W  • A N l  A  -  ■ • C  *

. - w T • • I : iH  O P ’ " * ' .  I ' O R ’  • •

Mfc f t M f  N V  *  ^  - N



Dr. Henry - Direct. 1 3 0 0 i

a Well, federal programs create quite a problem
because the identification of these people, who would be 
affected, the students, buses, schools, we have people in 
Washington that have agreed to c o »  in and help us with the j

Isituation when we can finally get the final court order but 
tlie prolled of tine is upon us. This is normally done touch

i
earlier. It would create quite a problem and especially in 
setting up our Head Start Center, but the basic tiring would
be identifying students.
U All right. In the area of admittance and the
area of services and school zone descriptions, are there any 
problems?
A Well, yes, of course, we have to establish the
legal zones, have to draw up the lines and this has been, of 
course, limited. What we have been working on, our 3tudent 
locator maps, we almost in sane areas have to do a census 
and we have Holden1 s people that have to go in and draw up 
the lines of the zones and get this to the people and it has 
to be publicized in the paper and it sounds simple but it 
is a process that takes time in getting it to the staff and 
getting it to the people, the principals knew where the 
students are to ccane from and to actually knew how many to 
expect, the business of setting up schedules, there's 
numerous tilings, especially with high schooi principals |
dealing with large numbers and these people have been known

jj
R i ' . h a r o  & C a s e y  b  S m t h  a n d  A s s o c i a t e s  

e r t »e i e o  s h o r t h a n d  r e p o r t e r s

R E F E R E N C E  M A H I  N D  A w F - H U B S E  •-L  |»



1801107

nefore and it created quite a problem, they need all time 
they can get for the situation to be successful. I mean IIsuccessful for the students even to know where to go in that j 

period of time and to get there and. of course, there are *1l 
imds of problems as to curriculum, in this parent situation, 
we have one through three and three through four who are 
actually re-organizing schools at the elementary level and
this requires seme adjustments in the other part of the staffs

:■ | . ! I; rn getting our staff together and to start the problems are
• ' l ljj in many different directions.
i I| Q In any other areas?

A Well, of course, the high school area right now
is such that we say school doesn't begin until August the 

1 31st, but at the high school areas August the 2nd, football
practice begins, band practice begins, these people go on

h the payroll far the coaches, students report there in large 
numbers, cheer leaders, drum majorettes, service clubs go 
into operation on programs for football, there are any number

!» of things, in fact, you have had as high as one-fourth of
0 the student body there before school starts anywhere from 

three to four weeks in operation, I mean I am not sure that 
all schools are like this but the ones that I aza familiar 
with are, so, in effect, these people in a week or two will 
actually be there in the school starting up.

| w Can you think of any other reasons that the staff

Dr. Henry - Direct

R i c h a r d  8  C a s t *  b  S m i t h  a n l  A s s o c  * t e s

C E R T I F I E D  S H O R T H A N D  R E P O R T E R S
RF.FERfc.NCE M  A R  T I NOAI.E -M ij b BE'l .



Dr. Henry - Direct _ cross 1802 i
or ti*e Board identified that requires student desegregation 
until 1972-73?
n wall. probably the most Deport ant reason that 1

I
•

can think, of is that we simply need the time to do a better
ijob of preparing people in the human relations aspect. Dr.

Von' a division, we think that what has been happening in the 
ccEiK&inity in the past several months, what actually happened 
last night in the Alton Park area in the paper, that we need

i

|to confront people with this in all ccranunities and simply 
wo need the tune, to get together for exchange programs in the 
school levels find high schools, get parents together and 
actual action committees like the Commissioner is starting, 
we actually need this time to have the experiences of getting 
together to be successful. Z think it would be extremely 
difficult to get same whites into certain areas of town and 
setae blacks in other areas of town and that we need tune to 
actually prepare people for the situation. I think we have 
a much better chance of success if we do this, especially 
with what has happened in the last few weeks.

MR. WITTj Thank you. Doctor. I have no further
questions.

CROSS EXAMINATION

bv w * ,, yg u t i M B A .

Q Dr. Henry, I believe you indicated that the reason
that the Board— the reason that you stuck primarily to

R  o i a r d  &  C a s e y  e  S m i t h  a n d  A ^ i o c  a t e s

C E R T I F I E D  ‘S H O R T H A N D  R E P O R T E R S

R E F E R E N C E  M A R T I N O A l E - H U B O H  L



Dr. benry - Cross 1803

co n tig u o u s  zo n in g  o f  s c h o o ls  was t o  m axim ize economy in  

t r a n s p o r ta t io n , i s  th a t  c o r r e c t ?

a As f a r  a s  we c a n , y e s , s i r ,  we c o u ld n 't  do i t

in  a l l  c a s e s .

Q W e ll, you d id  in  m oot c a s e s , th ou g h , d i d n 't  you?

A W e ll, n o , th e  n o rth  p a r t ,  th e r e  a r e  sim p ly  no

b la c k s  in  th e r e , we had t o  c r o s s  th e  r i v e r ,

Q You d id  seme l i t t l e —

A (In te rp o s in g ) T h ere w a s n 't a  l i t t l e  to  th o s e

people in  th a t  co raau n ity .

Q W e ll, you d id  m o stly  p a ir in g  o f  s c h o o ls , th ou g h ,

d i d n 't  you?

A We t r i e d  w here we c o u ld,

u P a ir in g  o f  r e g u la r  s ch o o l zo n es?

A Y e s , we p r e t t y  much fo llo w e d  D r. S t o l e e 's  id e a

o f p re p a rin g  and c lu s te r in g  in  th e  same id e a .

U You d i d n 't  do v e ry  much c lu s te r in g ?

A We d id  j u s t  ab ou t th e  same a s  he d id , I  th in k ,

w You d id n 't  a r r i v e  a t  th e  same r e s u l t s ?

A Y e s , v e ry  c l o s e ,

u F a i r l y  c lo s e ?

A Y e s .

U I  s e e .

A Our f ig u r e s  w ere a  l i t t l e  more— o u r d a ta  was

j u s t  a l i t t l e  b e t t e r .

R  c . h a r c  a  C a s e y  B  S m . t h  a n o  A s s o « a t e s  

c e r t i f i e d  s h o r t h a n d  r e p o r t e r s  
R E F E R E N C E  W A R T l N O A l _ E - H J B B E <_ L



Dr. Henry - Cross 1804

y D id he have any s c h o o ls  w here b la c k s  w ere l e s s

th an  30 p e r c e n t o r  w h ite s  w ere l e s s  t ha n 30 p e r  c e n t?  

a I  d o n 't  remember e x a c t ly  b u t In  th e  c lu s te r e d  j

a r e a s  we d o n 't  e ith e r *  o u rs  a r e  o u t on th e  e x tre m e s .

(j B ut you do have th e s e  sch ool s  t h a t  do n o t f a l l

w ith in  th e  p a t te r n  th a t  he su g g e ste d ?

A W e ll, w ith in  th e  30, y e s , s i r .  we d i d n 't  e s ta b l is h

any— we knew o f no re a so n  fo x  e s ta b lis h in g  any 30-70.
0 A ll r i g h t . L e t me jump ah ead  a l i t t l e .  You say

th a t  you w ent down a l i s t  o f s c h o o ls  and you s a id  th a t  you  

d id n 't  know an y th in g  th a t  th e  Scho o l B oard  had done t o  make 

th o s e  s c h o o ls  s e g re g a te d . The S ch o o l B oard  d i d n 't  do an y th in g  

to  make them  in te g r a te d  e i t h e r , d id  th e y ?

A I  th jn k  by t h i s  p ro p o s a l th e y  had done q u ite  a

b i t .

y I  mean in  th e  p a s t?

A Oh, yes, many of them have.
y W e il, l e t ' s  ta k e  t h i s ,  w hat d id  th e  S ch o o l B oard

do t o  make P in e v i i le  in te g r a te d ?

A P in e v i i le ?

U Y e s .

A P in e v i i le  w as n e v e r a p a r t ,  th e y  came in  a f t e r ,

sj A f te r  th e y  came in  th e y  w ere a  C h attan o o g a  sch o o l ,

w e re n 't th e y , a f t e r  th e y  w ore ann exed th e y  becam e a c i t y  

sch o o l o f C h attan o o g a?

R i . h * r o  8  C a s e v 8  S m i t h  a n d  A s s o c  a t l s

C«:*»TiF iF D  =>m O P T h A N D  R E P O R T E R S
R m - R t . N C t  M A R T  N D A l  E - H  l_ BB E L  !



1805
1

111

! (i

i 'i
■’U
21

2 4

A T h a t 's  r i g h t , b u t up u n t i l  th e y  d id  I  w ould n ev er

have th o u g h t we w ere u n d er any o b lig a tio n  o r  o rd e r  o r  an y th in g

else.
G To in te g r a te  th e  s c h o o ls ?

A To e v e r  re c o g n iz e  th e  r a c i a l  d i f f e r e n c e .

G You n e v e r th o u g h t, th e  S ch o o l B oard  n ev e r th ou g h t

i t  w as u n d er any o rd e r  t o  in te g r a te ?

A I  w o u ld n 't sa y  in te g r a te  b u t siio p ly  th e y  had no

re a so n  t o .

G The S ch o o l B oard  d i d n 't  know i t  w as u n d er an

o rd e r  t o  d e s e g re g a te  th e  s c h o o ls ?

A No, we re c o g n iz e  t h i s  r a c i a l  difference th e r e

in  z o n in g .

G So when you sa y  t h a t  th e  S ch o o l B oard  h a s  n e v er

done an y th in g  t o  c a u s e  v a r io u s  s c h o o ls  t o  be d e s e g re g a te d  

you a re  sa y in g  th a t  in  c o n te x t  o f  y o u r c o n c e p tio n  t h a t  th e  

School B oard  d id  n o t h ave any o b lig a tio n  t o  ch an g e zon e l i n e s  

so a s  to alter th e  r a c i a l  co m p lexion  o f  s c h o o ls , a r e  you n o t?  

A No, 1 an n o t sa y in g  t h a t .  1 am sa y in g  t h a t  we

took these p e o p le  in  and we had a zone l i n e  w hich co rresp o n d ed  

to where the p eo p le  w e re .

G I  am n o t ta lk in g  ab o u t any p a r t i c u l a r  s c h o o l.

A 1 am sa y in g  th a t  in  any in s ta n c e s  w here you say

th e  S ch o o l B oard  h as done n o th in g  t o  ca u se  th e  s e g re g a tio n  

th a t  e x is te d  in  s c h o o ls , you a r e  sa y in g  th a t  In  c o n te x t  o f

Dr. lienry -  Cross 1805

R ic h a r d  ft C a s e <' B S m t h  a n c  A s s o c i a t e s

C E R T I F . E D  S H O R T H A N D  R E P O R T E R S
R E F E R E N C E  M A R T 'N O A L E - H  IJ B B E L L i



1806Dr- Henry - Cross |

your conception th a t the School Board had no— f e lt  i t  had no 

du ty  to  a lte r  zone lin e s  to  e lim in a te  segregation? 

a  To a lte r  zone lin e s  to  elim inate?

Q Yes.

ii
i!I

Ii
i

d\ SO*
Q Then are you saying th a t the School Board d id

know th a t i t  had a duty to  a lte r  zone lin e s ?

A As fa r as zone lin e s , I  d o n 't th in k  segregation

was the main o b je ctive  in  a lte rin g  zone lin e s , i t  was the 

cap a city of b u ild in g s  because they sim ply d id n 't  recognize 

race and w ithout recogn izin g  race as such—

Q (In te rp o s in g ) Then they d id n 't  recognize they

had any duty to  a lta r  the zone lin e s  on account  of race, is  

th at c o rre c t, is  th a t what you are saying?

A W ell, I  d o n 't know. I  d o n 't th in k  they were

a c tu a lly  taking race in to  consideration in  a lte rin g  th e ir  

zone lin e s .

y So th a t then you cannot, when you say the School

Board has done nothing to  cause segregation, i f  the segregation 

existed by v irtu e  of the zone lin o s  then the in a c tio n  of the 

Board of Education might have helped to  cause th a t segregation},

m ig h tn 't it ?

a  W e ll, fa r-fe tc h e d , i t  p o ssib ly  could have but in

many cases sim ply c lo s in g  a school o r d iv id in g  zone lin e s  or 

something lik e  th is  d id  a ffe ct a p o s itiv e  move toward

R  c « a r d  6t  C a s e v  B  S m i t h  a n d  A s ^ O i  i a t e s

c e w t ,»--h £0
PEf'P R E N C  '

- • O P T H A N O  R E P O R T E R 1? 

M A R T . N D A L L - H ;  B B E L t



1
113

i::

I 4

IT)
In
17
1*
111

■ >■>

• ) ; »

.'l

j
segregation*

y Do you do concede , do you not, th a t by a lte rin g I
zone lin e s  o r p a irin g  o f schools o r by other measures the 

School Board could have eleim inated the segregation th a t 

existe d  in  vario us schools?

A They could but f i r s t  they would have had to

recognize the race.

Q Hew, would you agree th at the black schools s t i l l ji
having black m a jo rity  and the w hite schools s t i l l  having the j 
w hite m a jo rity , the schools s t i l l  remain r a c ia lly  id e n tif ia b le  

to  some extent?

A  W ell, I  aza not as strong on the business of having

a m a jo rity  as I  am the business of the s ta ff  and the program 

and the b u ild in g  in  the community i t s e lf .

Q W e ll.

A I  th in k  the m a jo rity  is  c u ttin g  i t  a l i t t l e  c lo se .

Q But you do take note of the fa c t th a t almost

w ithout exception, i f  you look at your p la n , the schools 

which were form erly black s t i l l  have black m a jo ritie s  and 

the schools which were fo rm erly w hite s t i l l  have the w hite 

m a jo rity?

A W e ll, I  hate to  g e n e ra lize  to  th a t extent in

taking contiguous areas, the blacks sim ply overpopulate the 

w hites there in  c o n tiguous close zones in  the s itu a tio n  and 

somewhere there i t  reversed i t s e lf ,  i t  went the opposite

Dr. Henry - Cross 1807

R i c h a r d  f t  C a s e y  B  S m . t h  a n d  A s s o c i a t e s  

C E R T I F I E D  S H O R T H A N D  R E P O R T E R S  

R E F E R E N C E  M A R T i N D A L t - H U B B E L t



Dr. Henry - Cross 1808

direction.

G without regard to the cause of it, though,
referring to your Exhibit 142, don't we find that to be true? 
Do I have to go down individual by individual school on that? 
A Well, no, I think you are drawing an erroneous
conclusion. These areas are extrenely close, if we had the 
time to go over a census map and pupil locator maps we might 
have been able to get— I don't see any reason, I hate to
recognize the fact that you have to get an exact ratio in 
a proposal like that but I say again in the time we had to
work with than we used the existing zone lines and the students 
that were in those existing zones. If black and whites were 
contiguous this is where you will c o m b  up with most of these 
differences here, and, frankly, the population of the blacks 
in these adjoining zones here is usually greater than the 
whites.
G So tht still you used the existing zone lines
and those are the same zone lines as we pointed out and were 
able to demonstrate to the Court in the evidence that were 
in existence back under the old segregated system, aren't
they?

A NO.
v Substantially?
A Well, no, not back under the old segregated
system.

R i c h a r d  A  C a s e v  b  S m i t h  a n d  A s s o c i a t e s  

C E « T » * i € D  S H O R T H A N D  R E  P O R T E R S  

R E F E R E N C E  M A P T  I N D A l L  H U 0 B >  L



Dr. iianry - Cross 1809

»j wexl, they are the same zone lines that you have
now, are they not?
A Ho, not exactly,
y Well, substantially?
A well, they are, of course, we had to make many
different things but we tried when we made different things, 
when we adjusted zone lines we added the plus or minus to 
Avondale, I think it's difficult to generalize on anything
like this.
y Dr. Henry, didn't you just get through saying
"We used the same zone lines*?
A we used the same concept of the general area of
the zone lines so people would know where they are tut there 
are little adjustments everywhere.
sj Let's be fair. Let's take the zone line here
that you have of Sunnyside and Barger that you have combined 
here. Isn’t that exactly the same zone line that those two 
schools already had substantially?
A Close, substantially, but you take several zones
have been coupletely done away.
q Well, yes, some schools have been discontinued,
we ore not talking about those. Dr. Henry.
A Missionary Ridge, their junior high level was
cut up into many pieces.
y With regard to the elementary schools, though.

R ' C h a r d  &  C a s e y  B  S m i t h  a n l  A s s o c i a t e s  

C E R T l K E D  S H O R T H A N D  R E P O R T E R S  

R E F E R E N C E  M A R T > N L> A L E  • H U 8  B E  L L



Dr. ilenry - Cross 1810
isn't Missionary Ridge stubstantially the same zone that you 
have right now?
A Fairly much.
Q That you had last year?
A There's not many people in that zone.
0 Isn't East Chattanooga substantially the same?
A No, I think there has been adjustments made in
East Chattanooga. !
<j what adjustments on the north here?
A I can't tell you exactly.
w If there are they are very minor, aren't they?
A Well, most of them are minor but still they are
in tha same general area where the people know approximately 
what school they would he going to.
L Taking Elbert Long, for instance, isn't that
substantially *te isn't that tbe «xact « «, sooe that j
you had tor Elbert Long before?
A Yes, It is.
<u Yes. And let's take another one, take Clara
Carpenter, isn't that substantially the same zone you had 
before?
A Well, part of it is but, you see, when you
combine the other zone with it you actually are enlarging 
that concept to two different zones mad it's not the same.
U But when you take the two combined zones don't



Dr. iienry - Cross i a i i

they represent the sazan® senes a t those two individual 
schools before?
A Not d a m  to the nth degree, there are differencesH
in there.i;
Q What differences?

j! IA Well, there is, of course, a little stretch in{I |
there picking up a few people here and there, adjusting 
zone lines and given sore time we could do a better job.
Q Aren't those very el nor adjustments, though 7
A Yes, they are art nor.
v So for the m o s t part you took, the sane zone lines

Iand what you did was pair the schools, pair the children in
I

those schools and you tried to select zones that would give 
you the right coaposdtion of white end hlack students without 
separating the zones so that the pairing would be non­
contiguous?
A There where it would be moat feasible, most
economically feasible.
0 Is there any transportation in this Sunny aids
and Barger zone there?
A Yes.
w Can you say bow such at this time?
A Well, approximately half the students in all the
elenentary schools.
Q Are transported?

B e  •



Dr. lienry - Cross iai2
A Y&S.

<j All right. How, Sunr*yside was a school which
Dr. ctolee had said was all right under his plan, wasn't it?
A Yes, it was*
Q As a matter of fact, it was 43 per cent black
axxi 57 per cent white7 
A That's true.
Q But on the other hand Barger, was that a pretty
much all white school?

A Completely.
0 I an trying to find it. Completely all white?
a Yes. sir.
i i Why didn't you leave, let's see now, why didn't
you leave Barger— why didn't you leave Sunnyside alone and 
take some of these white children in this Barger area and 
pair it with a school that was a majority black school?
A Well, we were looking forward to more than just
playing a numbers game. We were attempting to look to the 
future for success. We know black people are moving into 
the Sunnyside area, that eventually if we enlarge the area 
we are actually enlaxgLng the district or the zone to Barger 
and Sunnyside and that in time this will be a successful 
desegregated area, the numbers will take care of itself, if 
you want numbers. 1  don't even recognize the concept of that, 
not being desegregated, because of certain numbers, but we



119 Hr. Henry - Cross 1813
axe looking for future success and if we left Sunny side 
alone we would have to leapfrog down into the core part of 
town, the thing that is most objectionable to many people, 
probably half of our constituents, would cause us to have 
great problems in lapiaamnting this plan, so that's the 
reason we went to these contiguous souse.
q  But the fact remains, the fact remains that you

■ i

have in the core part of town, you have this Clara Carpenter 
down here, is that right?

IA Yes.
q  And where is RiVermont, it is down here prewiwhere,
too, isn't it?
A Right.
q  The fact risnelna that the white children whom
you have out here in Barger could have helped to integrate 
scxue of the black schools in the care of town, couldn't it?
A If you could have gotten them to go down there,
yes, sir. Me were looking for success. 
q You mean if you could have gotten them to go
down there?
A Yes*
<u You assign your children to schools?
A W e can assign them there but getting them there,
if they will go.
V That is speculation on your part, isn't it, as

« r fcf *  m

a. s mt



to whether or not they will g o  somewhere?
Dr. Henry - Croea 18UL4

A Yes, that is an
Q Yes.
A But getting t;ba» to go there is sane thing else.
but it’s an aseunqpticn Z would have to live with. 
q  Well, o f course, you never integrated this
school system before?
A Ho, sir, I haven* t but I have ready widely what
has happened in others, in other words, I have read widely 
-.Hat is happening in other pieces.
Q And you are saying that that would happen hare,
is that correct?
a  I also live in that consunlty and go to that
church and listen to the people daily.
w All right. And you operate your school system
on the basis of what people tell you at church?
A Ho, six, hut X listen.
C All right. How, the fact of the setter is that
that same principle applies also with regard to the junior 
high schools and to ths high schools, doesn't it, that you 
have avoided any f o a  of soning which would require children 
to travel distances from their hones?
A we attempted it but it didn't always work out,
this was our objective but it was not always possible.
U And the same is true with regard to high school

a .. ~ A - .  S M  r > ,  O ' C ’ T  R L P ^ r t T F ^ i .  C H A T  • *  *> O C A

»fc F C »1 N ( . E N O * ,  fc . 1 1 . 8 6 ?  l

11 . s i  . o f  r.



Dr. iienry Croea 1815
zoning?
A To a certain extent.
it In both the junior high school and the high
school zoning you mentioned that to do certain things you 
would have had to get into the Brainerd area, if you 
gotten into the Brainerd area and aeaigned m m  of the 
children in the Brainerd area to soma of the core area 
schools that would have combined, that would have had the 
added advantage of socio-economic integration?
A It could have or it could not.
Q Mostly the children in the Brainerd area are
middle class and upper middle class white children, are 
they not?
A Well, they are.

MR. WITT: May it please the Court, I abject
to the reference to soclo-ecottaeio, this is not a part of 
this lawsuit.

THE COURT: Well, the witness stay give his
answer.
a There are patches in the Brainerd area ***i the
Eastdale area, especially, that are not all affluent, it's 
not a complete affluent neighborhood.
!-t But for the most part it is affluent, isn't it?
A I would say the majority of it, there are still
pockets.

T I N • Ak.1. r- •»*'



Dr. iionry - Cross 1016

U Y<Xi would say t h e  majority is but there aura
still pockets?
A Well, there are areas in the Sastdale community
and in the Brainerd community, too, that are certainly not
affluent.
Q Ux. Henry, to be quite frank, is the Brainerd
area a predominantly middle class and upper middle clans 
affluent area oar not?
a Well, if you want to generalize and say yes,
but there are pockets, soma of the poorest people in Eaetdale 
live on top of the hill cut there on Central Avenue.
Q Did they predominate or are they in the minority? j
A I would say they are in the minority but they
are there.
y Xs tfrw1 Mt sidy* area predominantly an
affluent area or predominantly a poverty-stricken area?

.

A It's predominantly affluent, of course, there
are not many people there.
Q All right. Bow, if you will taka the plan,
pleasa, and refer to it. Let's sew if I can get the page 
numbers for you. Refer to that portion of it, refer to 
Page 1 of 4, refer to Page 1 of 4, the projected table of 
enrollment for proposed elementary attendance zones. Grades 1 
through 6 , 1971-72 school year.
A Page 1 of 4?

-  *. • - M T * .  A » f O R T E i > (  ( . H A '  » N C  t.

r t  • ••• e  • A . n T f  A . t  - . & a e .



Ur. henry - Cross 1817
w Yes, six.
A All right.
q 'That lists the elementary schools there on the
left margin, doesn't it?
A Yes. sir.
q Now, X just wanted to read that to see If I am
correct. 1 have done this based on your Exhibit 1 of 4, see 
if I am correct in reading the predominant composition of 
those schools as of the ̂ O-Yl school year: Avondale, black; 
Barger, black; Bell, black; Brown, white; Carpenter, black; 
Clifton iillls, white; Donaldson, black; Bast Chattanooga.
white; Bast Lake, white. 
a  Excuse am, you said
q Isn’t that predominantly
school. 1 2  hi arks to 282 whites?

THE COURTi What 
now, Mr. Williams?

MR. WILLIAMS; I am reading t r a m  or I am ref err 
to Table 2, which is a portion of the plan, the plan which
wets just introduced as Exhibit 146. I believe it is back

what? 
white in the »70-'71

exhibit are you referring to

there.
THE WITNESS; Yes.
THE COURT: All right.

q  Talking about Table 2 and the statistical data
that I am getting I get from Exhibit 142 which Dr. Henry,



Dr. lionry - Croats 1818
himself, introduced and what I aa  doing is In reference to 
each school that is listed there, I an giving the predominant 
completion of it based on the statistical enrollment in 
• 70-'71 as reflected on Exhibit 142 and I am just asking the
Doctor.

THL COURT: What page, on Page 2?
MR. WILLIAMS: No, sir. Exhibit 142.
THL COURT: Yes, Z have it. What page? !
MR. WILLIAMS: The first page. Page 1, the first I!

column where it says '70-*71, it shows the number of black
pupils and the number of white pupils.

THE COURT: A H  right.
MR. WILLIAMS: And then there is a percentage

column which might be used even sore easily, I Just want to 
show the present anrollraont of each of those schools.

THE COURT: All right.
a You said East Chattanooga?
q East Chattanooga is predominantly white?
A In *70-*71?
Q Yes, sir.
A Predominantly black.
v I am talking about *70-*71.
A You talking about last year?
L About as of last year.
a All right.

i

!
I



Dr. Henry - Cross 1619
w All right. East Lake, white; Eastdale, black)
Garber, black; Hemlock, white) Henry, black) Highland Park, 
white; Howard, black) Long, white) Missionary Ridge, white) 
Nonna! Park, black; Oak Grove, white; Orchard Knob, black) 
Pineville, white) Piney woods, black; Ridgedale, white) 
ici Vermont, white; St* Elmo, white; Smith, black; Sunny aide, 
white; woodtaore, white. You don't disagree with any of 
those, do you?
a Ho, sir, that is history*
u How, then on this Table 2 under those grades,
that* s the predominant racial composition of those schools 
last year and will you agree that that predominant racial 
composition last year reflects the predominant racial 
coeposition of the neighborhood school zones of those 
respective schools as of last year, since yon were operating 
on the neighborhood school zona system?
A Yes.
q  All right. Haw, looking under Table 2 which is
the projected enrollment and grade structure of those schools 
for the 1971-72 school year, the third column says "Grades* 
and there is a figure opposite each school in that oaluan. 
What does that represent?
A  Referring to blacks and whites.
Q In Table 2?
A Hot with reference to blacks and white under



Dr. lienry -  C ro u 1820

Table 2, the fir at column id the sane. You m a n  11, 31, 8 ? 
Q I an tailing about Exhibit 146, the plan. Table
2 , projected enrol Imnt which we are still on.
A Okay.
u Now, the third col nan says "Gredes*?I
A One throng six.
Q what does that reflect?
A This is the proposed plan where them studento~II
*2 (Interposing) under your pirn for the 1971-72
school year Avondale will hove Grades 4 to 6 , wouldn't it?
A Right.

||
u And the nuetoer of children involved in thorn
are listed over in the next rnlieei to the rig^it?
A Yes, 4, S and 8 .
Q How, then Barger will have Grades 4 to 6 ?
A Right,
U And so on down the line, Clifton Hills will hare
Grades 1 to 3?
A Right.
Q How, then. Or. Henry, just while you were
testifying I was sitting there sort of *nd x took
down sons figures there and X that yon are splitting
grade structures approximately in exactly 2 1  achools, that 
is, there are 21 schools that have either 4 through 6 or

|:jj 1 through 3.

•' t* *--** T*~ (  O ,  s ’  R E P O R T E R *  C * < i  ' A N - O O '  *  N F  S f i F F  

1 £ 3 t N C C  V * P T l M 3 A i . F - ‘" U § e r . . .



Dr. Henry - Crcwse 1821

A Right.
Q I counted and I notice that of the majority
black schools, that is, those that were predominantly black 
as of new, as of last year, same of them will have Grades 4 
to 6 while only three white schools will have Grades 4 to 6 , 
of the schools which will have Grades 1 to 3 four of them

iare predominantly black but seven of them are predominantly I
white?
A I think you have to look in on what I tried to
explain a while ago into the clustering there in that part 
of it, we pretty much got an equal balance if you count: as 
far as those that are being paired, beyond this chart you 
will see that outside of the cluster we had to go to that 
because of the capacity of that building at Orchard Knob.
C Yes.
a which would throw it out of balance, but there I
is nothing sacred about the 4 through 6 or the 1 through 3.
Q well, no, air, there is nothing sacred about it
but—
A (Interposing) I mean we didn't attempt anything
to be in this direction.
Q In light of that would you agree that Objection
1 —D of the plaintiff s' objection, which reads as follows, !
"48.5 per cent of the elementary schools which had a hJack
majority in 1970-71 will house Grades 1 to 3 in 1971-72 or



1 7 3 . 5  per cent of the elementary schools which had a white 
majority in 1970-71 will house Grades 1 to 3 in 1971-72, 
isn't that— let's just say I won't ask you that, I know you 
are not going to agree to anything, hut that's statistically 
correct?
A I could W *  you about statisticians and lawyers
and I might be held in oontampt but you can do almost anything

I
with statistical data. As I say, I would compare what we

!l did with Dr. Stolee's comparison on the w r y  sane thing, if IIil I
,j you wish.

q well, what I am saying is that—
A (Interposing) It does come out but this was a
point, a picking point to me. to put it bluntly, this could 
go either wsy, we didn't stress this, we didn't actually go |
into great details in selecting this sort of thing emcept

!l H w  building capacity, we did in that Orchard Knob axes.
( j i will ask you whether or not you are driven to

i

a degree in iight of that, that relatively more of the 
younger black children, that is, in Grades 1 to 3, will, 
therefore, have to travel distances to integrate the schools 
than white children?
A Because of the clustering, yes, but there are
no great distances involved at the elementary level and this 
is part of plan was to cut down on this distance.

ji q But there are some distances involved and they
ii

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t  • c  C v i - F v < » 9 '  N r  * ..• • H l j S t b t  »

Dr. lienry - Cross 1822

i



no
A 

9
3

m

w
ill 

th
e

y 
a

ct?



Dr. Henry - Cross 1824
A Out of 33.
Q Sir?
A Out of 33 schools, 15, you are right.
U Ail right, sir. How m a n y of those 15 schools
house the first grade next year?
A  I'd have to go and count this also. Twelve is
what I have, if you are not counting the 1  through 6 .

Sir?
a Twelve.
Q Twelve will house the first grade next year?
A Wait a minute, if you count the 1 through 6  you
would have to add 14.
u Schools with 50 per cent oar more black in *70-'71? i
a  Wait a minute, I was counting all the ones that
just had the first grade in it. You mean of this same group? 
w Yes. That were 50 pec cent or mere black.

i

A  Let me go through here and check each one.
Q We counted and we came up with 15 schools, of the
15 schools that had an enrol frnent that was 50 per cent or 
more black in 1970~7i only five will have the first grade 
next year and of the elementary schools that had a 50 per 
cent or more white enrollment in 1970-71, there were 16 and 
13 of the 18 will house the first grade next year, so that 
28 per cent of the majority of white schools will house the 
first grade next year hut 67 per cent or two-thirds of the

► ■* » i r «  £  S W . t w  C O U R T  K u ^ O R T t R S  t H *  * > *  N « . > O G A  T E N N E S S E E

Rtf E R E U C E  M A R T I N O A t E H U B e E ;  .



majority of the black schools v U l  not house the first grade 
next year, do you quarrel with that?
a Ho, sir, 1  don't, hut I would like to cowpare
with tto plaintiffs' plan and our plan in that a awe direction. 
q  Well.
A The plaintiff's eaq?ert. as I say, we had no
intention of going in this direction, we didn't think it was 
that important, but with the plan that he had, we are using 
the capacity of buildings wore than anything else and I can 
speak for the Board but as far as changing 1 through 3 and 
4 through 6 , this is not—
q (interposing) Let as ask you this, though. Or*
Henry, let's say you were pairing, and we keep cowing back 
to this Sunnyaide and Barger thing, if you were pairing 
Sunnyaide and Barger, combining those two senes?
A Yes.
q  Putting grmVnr 4 to 6  in one school and 1 to 3

in the other?
A Right.
q And let* s say Sunnyaide was a Majority black
school and Barger was a majority whit® school?
A Right*
q  You wouldn't have to put— would there be any
requirement that Grades 4 to 6  would go in any particular 
one of thoee schools?

H  <_ t, ? r  C A - : F Y  p  Ci M 1 T m r o u f i r  R C O O R T l r t S  C> •i ’ ^ a .NO O t i  A FE N  N F .5 *  E *-

Dr. Henry - Croats 1&25

EFEREN* F M A R T I N O A I . F .  H U B B t .



D r. Henry -  C ross 1&26
Bone wfea&soever in that part* 1 through 3 is at 

Sunnyside, the 4 ,  5 and 6 at Barger*
y You might have a little different problem in
connection with clustering, Z suppose? 
a  Yes, we do*
y Where you had three or four schools?
A Especially if one school will house around 700
and the adjacent school will house around 2 0 0 . 
g But how many of clustering do you have?
A TWO.

0 All right.
A This, of course, does auks a big difference. I
am trying to find it. We had statistical data to this point.
1 think in part of the brief, X wean pert of tbs—
y (Interposing) But you axe not saying that it
was impossible to agaal.lre that* are you?
a  Only that in the clustered area, the capacity of
buildings in the paired areas we attempted to pretty m u c h i
balance it.

i

g You did?
A X thought we were, X thought our statisticians i
were working in that direction, there was no great problem, 
g Do you have any idea why then you would come out

i

with a situation of only 2 0  per cent of the normally white 
s c h o o l s  have to aove their youngest children elsewhere hut

p  C H A R D  O  C A S E  V 8  - . M U H  C O U R T  R E P O R T E R S  C H A T T A N O O G A  T E N N E S S E E  

R E F E R E N C E  M A R T l N O A i . E - H U 0 6 F . L L



D r. Henry -  Cx o m 1S27

67 per cent o f the formerly h.1, ack schools will have to sieve 
their younger children elsewhere?
A I can't believe that. Somewhere in our brief
Hr. Taylor* our statistician, has something on this exactly, 
the comparison of this, the people that were traveling and 
were not traveling, and it doesn't come out like that, 
w You don't deny that according to the statistics
that you have here that it is true, do you?
A Well, this, as 1 say, was capacity of buildings,
when you have a large building that was predominantly black !
you have several msaller buildings that were white, when you 
are not pairing, but the same principle, in fact, we left the 
whites in the amnll.er buildings in the 1  through 3, this is 
what the plaintiffs* expert did, the same thing, and this is 
where we got it from, frankly.
Q Well, all right. Begardle—  of what the reason
for what you did wms, you will agree that in terms of this 
the blacks are carrying the greater burden of desegregation?
A X think they have for some time.

i

Q All right, sir. How, you gave aa a reason for
closing the schools in the black neighborhood that they have 
just been hand-me-downs anyway from white children and you 
thought bl acks ought to be glad to get rid of them?

j

A Dome of them were actually unsafe, too.
Q Why haven't they been cloeod in past years?

P  C H A R D  A C A S E  v B  S M . T W  C O U R T  R E P O R T E R S  C H A T T A N O O G A  T E N N E S S E E

i
R E F E R E N C E  M A R T I N G A L E  N U B 8 E L L



Dr. iienry jL o 2 8

A 'Why haven’t they been cloned in past years?
U Yea. sir. If it was ©ducattonally sound and they
were unsafe for black children why aren't they unsafe. I mean, 
and they are now unsafe for integrated used, why weren't they 
unsafe for segregated use?
A I think that you will find historically we h a v e
been closing buildings like this for same tine and wo have 
been looking at the, say, the Davenport building, and the 
aame w a y  with the Sanderson building, and we have closed the 
Chattanooga A v e n u e  School, we have closed many schools in the 
past for thia very same reason and for other reasons, 
economically the newer buildings we operate the less the cost. 
We tried to close older buildings as we can.
Q All right. You haven't mentioned this, lxit you
mentioned that you wanted Klrkman excluded, but your plan 
proposes to have sene Klrkman satellites at Howard and 
Riverside, doesn't it?
a Yes, we did aisply because of the time limit in
moving labs and some equipment.
q  What will be taught in terms of specific courses
at the vocational satellite at Howard?
A Well, frankly, at this time this, of course, I
don't want to alter our plan or concept of it, but I think 
by September we will have all these labs moved and it might 
be unnecessary for that, we are not exactly sure.



Dr. Henry - Cross
u What about Riveraide?
A The same thing.
g So that you now say that the satellites will
probably be abandoned?
A We are not exactly sure. We never intended to

'keep them there completely, it* a just a matter of feasibility 
as to when we can move the labs.
g If they are not abandoned what will be taught
there?
A I ana not exactly sure, probably have to do with
the heavier machinery.
U Likely be sown courses that are taught at Kirkman?;
A Not all the courses. We moved courses out of
Riverside and Howard and placed then into Kirkxuan and taken 
some from Kirkzaan and placed them in Howard and Riverside.
U will there be any courses taught at these
satellites if you have them that will not be taught at 
Kirkman?
A Ho. Wait a minute, I am not exactly sure of that.
State that again.
g Will there be any courses taught in these
satellite schools that will not be taught at Kirkzaan?
A I don't think so, but I am not sure.
Q Well, hew then will you get white students into
the vocational satellites at Howard and Riverside?



Dr. Denry - Cross ld30

A of course, we singly assign them, they are a

part of KirXxaan.
Assign then*?

A Yes.
^ I thought Klrkman was a citywide freedom of
choree?
A it would be but in the satellite approach these
students would report to Kirk/san and they would simply be a 
part of the Kirkza^n School and they would be assigned to 
Riverside and Howard. In fact, we could put all whites in 
there, we could effectuate more segregation by doing that, 
y Is there anything in your plan that says how
that can be done?
A No, not specifically because this was a temporary
measure, we hope to get this behind us in a hurry, 
v; Well, then your plan is incomplete in that regard
then, isn’t it?
A Well, it’s just a matter of feasibility of moving
the labs, as I say, vie are moving faster in that than
anticipated.
w
A
anticipated,
V

Sir?
We are moving actually faster in that than we 
than we had made plans for.
All right. Now, what other plans were considered

by the Board?



1 3 7
Dr. Henry - Crc**a

MK. WITT* Hay it please the Coart. I object to j

that question as irrelevant.
Beiore this Court is the plan as sub*aitted by the j

Chattanooga Board of Education and the question is vhethar j 
or not that x 1 n meet* the constitutional requirement*, we I 
arc not here to examine ail of the plans. That is the essence 
ot the judgment of the school Board and rfs Before thrs 
court tor either approval or rejection, as I understand it. 
and what they may have done we will he here until September.

MR. w i u -IbMSi If it please the Court, in other
words. I never heard of anything like this. Of course, if. 
relevant and proper for this Court to consider, not only in 
terms of the competency of this plan Hit In terms of the good 
faith of the Board of Education and the consideration that 
went rnto the «**>oaitioh of this plan, what other plans 
were considered, that has always been relevant, if your Hcmor

please.
the cou rt: Well, quite frankly. Mr. Williaw*.

tho relevance of it aoems to escape *e. Vve are here to try

the plan that is before the Court.
MR. ..ihLIAHS: May it pleaae the Court, this is

not even the only plan before the Court, the plaintiffs have

a plan in this case before the Court.
the cou rt: Yes. but the Court has the order and

.1 Court to direct the defendantsinstructions tram the /tppellate cau

lb 31



i)r. lienry - Cross 1S32
to submit a plan and then If the defendants do submit a plan 
and tnat plan meets the constitutional requiranents that plan 
is the plan that should be approved. If it doesn't then we, 
of course, must take further steps.

MR. WILLIAMS: Of course, if your Hnnor please,
that begs the question, if I may respectfully say so, 
it is the duty of the Court under the express language of 
Brown to appraise any plan submitted by the Board to determine 
tiie adequacy of that plan.

THJL COURT: Yes, any plan submitted by the Board,
that as correct.

MR. WILLIAMS: Well, no, sir, if your Honor
please, the Supremo Court has recognised that the Court, 
itself, may order a plan in the event that it finds—

THE COURT: (Interposing) in the event the Board
doesn't submit a valid p?an.

MR. WILLIAMS: No. sir, in the event it finds,
in the event the Board doesn't submit a plan or finds that 
the plan submitted by the Board is inadequate.

THE COURT: That is correct, if the plan is
inadequate then we will move on to other plans. Hr. williams. 
Let's see whether this plan is adequate.

MR. WILLIAMS: But, may it please the Court, I
respectfully submit that the Court cannot determine whether 
the plans of the Board are adequate without some knowledge as



Dr. lienry - Cross loll
to what the B oard  c o n s id e re d  in  a r r iv in g  a t  t h a t  p la n .

THE COURTt Well, now, I am of the opinion. Hr. 
williams, that if we go into all tile possible contingency 
plans that any member of the school staff nay have thought of 
we can be here at this time next year and still have no plan. 
You have a school staff that is of considerable Aire and 1 
assume that every member of that staff has acme concept as l
to what he thinks should be a plan or a part of a plan.

Now, if we are going to go into all of the concepts 
for evory contingency plan that any staff mmmbura may have had, 
as X say, we could well be here for quite a long while.

I just do not see the relevance of contingency 
plans. The question at this point is whether or not this 
plan that the Board has submitted does or doss not eliminate 
the State-created or State-imposed segregation.

MR. WILLIAMS} If the Court please, 2 would again 
call the Court's attention to the language of the Court in the 
Davis case in which the Court pointed out that it is the duty 
of this Court and of the Court authorities to see that a plan 
is approved which achieves the greatest possible degree of 
desegregation in the light of the practicalities of the 
situation.

The Court cannot determine that in the absence of, 
and certainly there is relevance in information as to alterna­
tive plans which were considered by the Board, moreover, as I

AS*. -  <s C  ASe.< t» S M  t h  ‘ O u P T  R E P O R T E R S  «*H A i  A '  . - C o *  T E N N E S S E E  

R E  f  E K f T N C  F  m a *»t  N 0 A | .  F

I



indicated earlier, such alternative plans iiave a very definite 
relevance in terms of tire good faith ox tlie board in the pre­
sentation of the plan which it has presented.

THE COURT: If the board has submitted a valid
plan could they posaihly be in bad faith, Hr. Williams?

MR. nihhlAHS: But the Court is reaching—
THE COURT; (Interposing) If you will snow that

I
tlic- id an as submitted is not a valid plan then we will get 
to tiie issue of whether there are or not, they are in or not 
in good faith, how. could you say they could not be in good 
faith if they have submit tod a valid plan?

HR. WILLIAMS: That is not tay tnrden, if your
Honor please, to show that the plan that they have submitted 
is not a valid plan. It is their burden to show that it is 
a vaiid plan and the Court is reaching that conclusion already 
in his approach to my argument because the Court is assuming 
that the plan is a valid plan already in declining to allcw 
me to interrogate him about alternative plans.

It might be that if the Court heard the information 
about the alternative plan then the Court might reach the 
conclusion that the present plan is not a valid plan in terms 
of the constitutionality. We are abiding by the Court 
annunciation not only in Swan but in Davis.

THE COURT: Very well, I aw going to sustain the

dr. Henry - Cross lii34

objection at the present time but I will do further reading



ox. h e n r y  -  C r o s s xB33

rn both of cue so cases this afternoon and if I conclude that 
I aw in error we will allow you to re-open your proof in that

respect.
MK. ».XLLl/»£iS: May it please the Court, it would

be a treiueiidous burden upon the plaintiff to re-open their 
proof, time is almost late, as the Court has been aware of 
tuiroughout, tne plaintiffs have been active for eleven years 
and I thin*, that we ought to be allowed leeway at least to 
interrogate the Board about the validity of the plan which 
they now propose under the Court order after eleven years.

THE. COURT: Well, you are a siting, as I understand,
this witness to testify about any matters that may have been 
considered by the Board but were not approved by the Board, 

is that correct?
Mk. WILLIAMS: I  aw asking him, sir, to state to

the Court what, if any. alternative plans were considered by 
the Board and certainly that is relevant information which 
the Court should have in attainting to carry out the Court's 
constitutional duty to appraise the adequacy of this plan to
c»eet the constitutional requirements.

THb COURT: And you say that authority for that

is in tne swan decision?
MR. WILLIAMS: Ho. sir, it's in the case of Davis

vs. the board of Commissioners or Mobile County, ,d.aoama. 
where! xn the very ultimate paragraph el that opinion Chief



D r .  H e n r y  -  C r o s s lojfc
Justice burger sard as follows, "We have held neighborhood 
school zoning, whether based strictly on name to school dis­
tance or an unidentified geographic zones, is not the only 
constitutionally permissible remedy nor is it *«er se adequate 
to meet the remedial responsibilities of local boards having 
once found tne violation the District Court or school 
authorities should make every effort to achieve tire greatest 
possible degree of actual desegregation, taking into account 
the practicalities of the situation. a District Court may 
and should consider the use of ail available techniques, 
including restructuring of the attendance zone and both 
contiguous and nan-contiguous attendance zone. See Swan at 
Page id-27. The measure of any desegregation plan is its 
of £ ectivene as."

doing to the last paragraph, "on the record before 
a s  i t  is clear that the Court of Appeals felt constrained to 
treat tile eastern part of metropolitan Mobile in isolation 
frcr.i the rest of the school system and that inadequate con­
sideration was given to the possible use of bus transportation 
and split zoning. For these reasons we reverse the judgment 
01 the Court of Appeals as to the parts dealing with student 
assignment and remand the case for the- deveiopoient of a decree 
tiiat promises realistically to work and promises realistically 
to wort now. dreen vs. County school board."

how. in that case, if your Honor please, there



Jl J  • i  ie n r  y C ross xd 37
was a  pi an and there was integration ami the district Judge 
approved it out the Suprcaae Court said that tiiey hc.ti not gone 
far enough, how, in this case what your honor is in effect 
sayxng in the ruling ti»at your honor made this luoxnug on trie 
subpoena, and what is involved here, is in the question that 
i now ave netore your honor, is whether or not the Court will 
accept carte blanche what the school Board presents, not allow 
counsel to even cross exaiuine theta about what went into the 
waiting of it and limit tiie scope of the proof to the seif- 
serving declarations ox the school officials, saying, "This 
is the best judgment of the school officiaie."

If your honor please, that doesn’t help the Court 
determine whether this is trie plan which will achieve the 
greatest possible degree of actual desegregation, taking into 
account the practicalities of the situation.

Suppose, for instance, if your honor please, this 
plan, instead of providing aoeaa degree of desegregation in 
many schools provided for eight or ten schools to be 90 per 
cent black and left eight or ten white schools, formerly white 
schools, about five per cent white.

TILL. COURT: All right. bet's add to your
supposition that in that situation all State-in%x>sed segrega­
tion had been eliminated?

f-uv. WILLIAMS: Well, if your ik or please, that
is u very nebulous concept.



:

A****
THL COUiST: Weii, are wc not dealing in souowhat

nebulous concepts in this problems?
i*m. vdLLLXAMS: Well, your honor is asking me to

supjxise that all St ate-imposed segregation had been eliminated 
and tnat really beys tire question because your Honor has 
already made a deterTaination that the defendants have not met 
therr constitutional duties to desegregate the school system.

how, having done that then Davis applies, which 
says cnat is not a question oi whether a State-imposed 
segregation is removed but it is a question of the extent to 
which tlie school system is actually desegregated before I 
would suppose, if your honor please, that the very reasoning 
behind this is that having established the segregated system 
oy state action, a totally segregated system, that it is then 
incumbent upon tire State to put the public back where it 
found them.

Tilt COURT: I ata going to allow you to place this
in the record and perhaps I will be in a better position at 
that tune to judge whether it is or is not relevant. At the 
present time i have difficulty, I must admit, in seeing the 
relevcuice of it, but I will allow you to place it in the 
record, then 1 will also review the cases that you have 
referred to.

MR. WILLIAMS: Thank you, your Honor.
w

Dr. Henry - Cross idJb

Dr. Henry, what other alternative plans were



II

161*145

considered by the hoard?
What other alternative plans were considered? 

t Yea.
A Weil, we never actually had a complete alternative
plan oi any Kind.

well.
j\ we had portions o£ many different plans.
w were there alternative plans that were considered?
... There were about as many alternatives as we had
staff members. It was never actually completed, an alternative 
plan. Was there an alternative Section 2 of the plan? 
i Yes.
A No, not complete from all levels of high school
an down, never complete alternative plan.
U What was presented?
a what? we were presented many things.
<u you said that it was never complete but something
was prepared?
A  we presented many alternatives, almost a
iijoryasnoru, you take what you wanted, any percentage or any­
thing else at various levels, elementary, high school, junior 
high, various sections of town.
v. Dr. lienry, in Exhibit 146 there is set out under
section 2A specific assignment of children to schools.

A

or. Henry - Cross

Yes.



Or. henry - Cross

- ;jccoruriKj to curtain percentage and nuubcib. Now,
was there ever an alternative to that prepared and on paper?
'*■ Not a cotaplete one including elementary, junior
high and high school.
a was there prepared for the eleaaentary scnools?
a Yes.
v All right. And where is that?
a 1 imagine it is at the central office,
w Ail right, n ix a  b y wham was that prepared?

By the staif.
w And when was that prepared, at the same txrau that
this was prepared or before? 
a Before.
v And was that presented to the Board of education?
A Yes, in part, yes.
<u Sir?
A

y
A
plan.
y
A
W
A
W

In part, yea, air.
what do you mean “in part"?
Weil, it never was accepted as an alternative

I know that. But it was presented to the Board/ 
we presented many things to them, yes.
Dr. Henry, was that presented to the Board?
Yes.
And the Board, did the Board reject that?

P  5  M T h  C O i l  R  T  R E P O R T E R S  ; . 1i » T t » n (> o

E R E N C E MART NOA'-E H U B B E !  L



147

« UI
•i

i I I

n Yes.
All right. And did they reject it by unanimous 

vote as reflected on the minutes?
A I don’t know whether X should feel obligated to
express that or not. I am representing the Board and what 
they voted on X think is internally, I don't know.
Q Bow, wait a minute. Is it on the minutes ox the■
Board?

Dr. Henry - Crons 1841

A This was a work session.
Does the Board consider itself a private organ!-4

ration?
A Ho, but they do in work like this, they have to
work up something and in working with the staff to give us 
guidelines and direction we axe operating the Mechanics of 
the Board which has to give us direction*
Q Or. henry, was it on the minutes of the Board?

THE COURTS Hr. Willi m s , how is it relevant how 
any particular weaker of the Board may have voted?

MR. WILLIAMS* Xt is relevant.
THE COURTS Xf they voted, if they adopted it, 

yes, if that should be made known, if they did not adopt it 
then how as to haw many member voted, I don't see how that 
would be relevant.

MR. WILLIAMS: May it please the Court, it is
relevant because there are b l a c k  members of this Board and it

b  s v  ■•■M " O u s t  p o w ’ U T M N O O  - A T E N N t S S f  E

Rfc F r.RENCl M A«9 7 , NO ALE H j B B t



Dr. iienry - Cross lb42

is relevant to show whether or not there was a vote Morvj 
racial lines in the rejection of that pi^n,

THE COURT* Well* X don't see how how that makes 
the plan constitutional or unconstitutional*

HR. WILLIAMS: Well.
THE COURT: I just don't see the relevance. I

a&< not going to require the witness to answer that*
Mft. WILLIAMS: Well* all right. I don't »*ean that

rs all right* 1 except to that* if your Honor please. I just 
realize 1  don't have to except.

THE COURT: I as suae that both white officials
and black officials try to fulfill duties «nAir ^  law
and I don't think it would * constitutional Wygyp
because a white person voted one way oar a black person voted 
another way.
u Dr. Henry, did that plan provide far a greater
or lesser degree of desegregation than the plan which was
presented?
A It would have been greater in sone schools, sons
schools lass. I might say generally it would have been
greater.
Q And in general would it or not have provided in
virtually all schools an enrol Input approximately equal to 
the proportion of black and white students in thet
population, into the total school population?



Dr. Henry - Cross 1643

A No# it would not.
Q Would it have provided that in virtually all of
the schools?

A No. There was still quite a few left# in fact,
in the entirety it's no different than, oh, I'd say in many 
cases except the outlying, extremely outlying districts—  

w (interposing) 1  thought we were talking about
only the elementary schools.
A That' s what 1 said*
Q Hid it also include junior high and senior high?
A There was another one for junior high.
i i Another one for junior highs. And both of th-rmr—
A (Interposing) Wel l, there were, X would say

Ithere are many more junior highs.
U Well, the one that we are talking about that was
deem on paper and was considered by the Board, thin was 
for junior high schools and one for elementary schools?
A Well, I don't think they ever got voting on one
except the elementary schools.
U Wall, there was one for junior high schools?
A Yes.
w And it, too, would have provided a greater degree
of integration in the schools th^n this plan?
A Yes.

And it, too, I take it, would have come ~ 1 "ttr to

N O *  ( >-



Dr. Henry - Cross 1844

providing approximately the same ratio in each school to 
blacks or to whites in the total school population?
A Generally, yes.
g And you likewise have a copy of that plan avail­
able at the central office?
a I hppe so, X a» not exactly sure of the junior

I
high.
g Well, ao far as you know that would he available,
is that correct?
a X hope ao, X am thinking out loud, I don't really

;know.
q  What considerations were discussed by the Board
in rejecting the more effective plan for el aw ant ary schools?
A You are putting m  in a terrible position frankly
as a representative of the Board to say what Board members 
are discussing individually.
g well, what did they consider? They are public
officials?
A Distance of travel, what was economically feasible,
what would be more acceptable to the public, what would 
actually be more successfully integrated, we did uae the 
criteria of min imam busing, contrary to what a lot of people 
may think.
g But they considered also what would be more
salable to the public?

s - ' . e \ P  A. U E B t

I



Dr. Henry - Cross 1&45
A Well, certcJLnly this is always*-'-they represent
the public.
G Well, yea. It was at that point that they rejected
the plan?
A How, I wouldn't say. Z don't re— tear exactly at
what point it was or anything like that, it simply was the 
concept that of non-contlguous scones and the outlying dis­
tricts that that would simply be too costly and not feasible.
Q Well. did there also seem to be scare cosaraunity
resistance to that?
A Well, l think there would be co-unity resistance
to anything, frankly, but, yes, they were thinking it would 
be store for this than there would be—
G (Interposing) Was any determination ever made
as to h o  much transportation would be required for the sore 
effective plan?
A Hot completely but it would have been, I don't
recall offhand but it would have been many more students 
being bused greater distances,
G All right. Bow many?
A Oh, approximately twice as many.
Q Approximately twice as many?
A (witness moves head up and down.)
G All right. So then that would have meant approxi­
mately twice as many buses?



Dr. iienry - Cross 1346

ji
j A

U

A That’s right.
u All right, sir.
A I ata not exactly sure on that hut this is the
most I can recall.
Q well, that is your best estimate?

Yes.
You never actually made a survey, though?

A Not completely. There was talk and people were
giving ball park estimations.
Q All right. Was this done at a single Board
meeting?
A X can't recall offhand, there have been so many
Board meetings in the past few months.
<u When the Board rejected this plan did they then
suggest that you draw another plan?
a They did ask us to a a a m  beck with more alternative*,
more pieces of plans and things.
Q And that would not—
A (Interposing} That would minimise busing, minimise

|
transpo rtatio n  and maximize desegregation.
Q And would adhere more to the neighborhood schools
concept?
A They didn't say that, the only criteria they said
was maximize desegregation and minimize busing.
Q All right. And what they meant by that, of course,



Dr. Henry - Cross 1847

waus that the neighborhood school concept, that is what you 
understood them to mean by it?
A They did not say this.
Q Well, aa an educator and as an intelligent nan
do you not assume that that ia trihat they meant when they 
rejected it, the one that had the transportation in it?
A X wouldn't want to give that impression, I don't
think they felt this way completely.
Q Well, in any event, that is what you did, you
drew a plan which adhered more closely to the nelghhorhopA 
school concept, didn't you?
A Well, we brought the neighborhood sene to
two zones rather than one where we and there was sene
areas where we couldn't and we did actually have to use non­
contiguous divisions.
H Still the basic concept of the plan is the
neighborhood school concept?
A Well, I doubt if you call it basic because you

Ihave where we did use neo-eqatiguoua in acute areas
in other areas we used, we tried to use these two opposing 
values, maximum desegregation and nlnljetw busing, it doesn't 
come out in any general or simplified way.
Q But you had a plan, you had a plan which would
have had the maximum desegregation, didn't you?
A which in the thinking of the Board would ainply



nave been too costly and less acceptable to the majority of
Dr. Henry - Croea 1848

the people, 
g I see.
a we were looting for success.
q  Did t>w» Board mate any effort to contact the City
C o n s o lssxon to find out whether that waa going to be too
costly?
A There have been meetings with the City Commission
in which we talked with thtan about the many alternatives, but
nothing definite.
g  Was any estimate *n̂ rt̂  of the cost of that other

plan?
A only hall park estimations which ran several
thousand dollars one way or the other. I don't think it is 
really significant.
g Was that ever presented to the City Comnl ssion?
A we have talked to the City Commission about many
tilings in the way of costs and money and from thousands of 
dollars in one direction and got a very negative reaction at 
all times about the cost.
g 1 am sure of that. Dr. Henry, but what I am asking
you is was there ever a specific amount of dollars formulated 
for the cost of implementing that plan that has not been 
presented here and that estimate presented to the Commission

formally?

• ' O K  ‘  KDAt f . i



Dr. Henry - Cross 1349
A 1 don't recall. I talked to the City CoiiBaission
several times and we used many different figures but if we 
used a  figure it wasn't based on anything solid or base line 
data, just an approximation. We read in the paper what is 
happening, has happenod in certain areas, the cost of busing 
or something like tills, we are approximating the number of 
students that may be carried in buses and we cone up with an

iapproximate figure and I think it is an all very much up-in- 
the-air sort of thing, I would hate to have to depend on it. 
v ho. Dr. Henry, your answer to aty question then
as to whether there has been any specific figure formulated 
and submitted formally to the Commission would have to be,
**i40."

a That is right.
w All right, sir. How, for all practical purposes,
for all practical purposes Howard and Riverside High School 
under your projected plans will have some black students 
assigned, are still recognisable as black institutions, are 
they, with 70 per cent black at Howard and 6b per cent at 
Riverside?
a 1 think as long as they are in the consounities,
in the midcLe of housing projects where they are, this will 
continue to he so, but it's not the result of the faculty nor 
the curriculum nor the program in our proposed plan.
L But that could be changed to some extent if the

PSl*



Dr. Henry - Cross 1850
sc 1 tool population there were re-assigned to more accurately 
reflect the population in the cosounity?
A hot in my opinion as long as it is where it is
in the community it is in, it will always he black.
w You say a black school is in a hlack oowunity
will always be black. How about a white?
A In Chattanooga right now in the tamper and the
tenure of the situation where it is in the middle of a housingi
project it would take more than 50-50 or something like that
to change it.
u
What are
A

night.
<u

A

U

well, let's get at what you are talking about, 
you talking about, what is happening in Chattanooga? 

well, this disorder and things that happened last

what disorder?
well, last night as X read in the newspaper.
You are not talking about anything that you know

about of your own knowledge, are you?
A No, sir.
y All right.
A well, I could retract that. We do have school
buildings with a lot of windows broken and a lot of things
happening to them.
v Do you have setae in the white cosnunities, white
neighborhoods where windows were broken?

BP-



Dr. Henry - Cross 1851
A Very few.
Q But you do have setae where windows were broken,
though, don’t you?
A  Very few compared.
D You keep saying "very few*, does that or not
imply that you do have aoaae?

I
A Yes, of course, there are some.
0 Yes. All right. Mow, then with regard to the
facuity and staff, you agree that it is necessary to recruit
black teachers?
A Yes.
q And do you or not disagree with the proposition
that if there are 30 black students in the school system and 
70 white students that you ought not to have four white
teachers and no black teachers?
t\ Well, what I would like to see is as close as
possible in the teaching staff as we can get at 50-30. 
w All right, which is the approximate ratio of
students to students, isn’t it?
A Approximately.
<j Yes, sir. Now, then also let's look at Paragraph
3c of my objections which mentions matters in which black 
children are sometimes subjected by white teachers. There 
is a danger that black cultural differences may be viewed 
as a reflection of inferiority by white teachers, isn't there?

a r - r- • O  •> * «* ? • i < 4 7  F N N » - 1 t

a - . f  - ; •* a  o r



Dr. Henry - Cross 1352
A There is a possibility to almost anything like
that.
w well, sir?
a Sure, there is a possibility.
1 Don’t you m o w  of instances of that?
A I knew of instances where teachers do this to
anyone, all students or any students. We try to get rid of 
those teachers but it is not a racial concept.
C You would agree, would you not, that intelligence
and achievement test scores are sometimes interpreted to the 
detriment of black students?
A Yes, culturally.
^ And that, as a matter of fact, sometimes the tests
themselves are inadequate, aren't they. Dr. Henry, because 
the achievement tests are designed to test tfre abilities of 
white middle class children?

A In many cases, not all. The new tests are coming
out, out many in the past, especially many of the tests have 
been culturally testing white middle class values but there 
are other teats coming out now and which seemingly are 
standardized with black cultures into consideration.
^ You will concede that that is a matter that is
relevant arid has to be guarded against?
A Yes.

To some extent?



Uz. Henz-y - Cross 1653
A  For till* reason we have stopped giving intelli­
gence testa.
g And will you not also concede that b la c k  studenta

have been tress tine to time given vocational counseling that 
guxded thorn into the vocational and technical school a rather

I
than academic schools?
H 1  have no person knowledge of this tut 1  imagine,

of course, it could be.
w were you here and did you hear the testimony of
one of your own staff members. Dr. Bond, saying that all the 
students at Howard School were— very few of the students at 
Howard School were college-bound?
a well, there are other high schools in the sane
situation, if s not a racial concept that they don't go to

college.
( j He didn't place Brainerd in that?
A Mo, we had Central High School for years and
large numbers of them didn't go to college, it was all tfcite. 
iu You do agree that there does need to he same
safeguard against that?
A Well. I would hope that we learn to deal with
people as people and not as hi ack and whites and would so 
guide them in the guidance course, I hope that we don't have 
to put this into the safeguards. I hope that it wouldn't even 
be necessary.

. .  ... O  • *  1 M l t P O f i r f c P r i  w * - ! * '  A '  •> *  T »  NNt-  • f

m i  ■ i r e s  f- v  *  n  r  • n  O A .  t  h o R E :  .



Dr. Henry - Cross 1 B 5 4

A

v Well, do you not also agree that frequently
white teachers do have lew expectancy of black students?

I know some that have low expectancies for
everyone.

U I am talking specifically in the context of race
now and the realities of race.
A Well, at Chattanooga High School as principal
I ran into many bright students, in fact, the brightest 
student was black, no low expectancy on the part of a boy 
like Hark Thompson, and the same situation in the whites.
I think that if we deal on this sort of thing—

(Interposing) But isn't it true that there are 
some white teachers who feel that way, haven't you known 
some?

A 1  think it's the largest profession in the world,
I think there's some that think of anything and everything.
<U Then would you not also agree if a single hlack
child was subjected to that kind of discrimination and were 
to be harmed or stunted in his intellectual and educational 
ground that that would be a loss? 
a Black or white.

well, yes, all right. But the white child— I am
talking about black children being subjected to low expectancy 
from white teachers at the moment.
A Yes, air. When I grew up in Onion Bottom right

<\ • * • .3*.



next to the blacks and grew up there with then there was low 
expectancy on our part also because of the neighborhood which

we caiae f ran.
y S O  it might be well in a plan which called for
the integration of black students and poor white students 
that there be some division nude for that? 
a well, I would hope in the philosophy in our
school students this would be a protection that we believe 
as teacher and would find the teacher doing otherwise we'd 
get rid of thorn.
y Dr. Henry, so long as you are superintendent
that may be true, but do you recognize the fact that you may 
walk, out of here and drop dead today? 
a Or may be fired tomorrow, yes.
y well, all right. Insofar as this problem of
transportation nos is concerned. Dr. Henry, do you reed the 
New York Tinea?
A I used to, I don't have tine any more,
y Neither do I.
a I am not being facetious.
y Neither am I, sir. I am not being facetious. We
noted on the 9 July. 1971, late edition of the Hew York Tinea 
at Page 25 an advertisement of a county school service of 
Danbury. Connecticut, 100 used 6 6 -passenger buses, models 
1965 to 1968 immediately available.

Dr. lieary - Cross 1855



Dr. henry - Cross 1856
a We went through our regular sources.

would you be interested in contacting them about 
possible school buses?
A Yes.
i j You indicated Mr. McCullough indicated in his
affidavit that one person who was contacted about the 
possibility of furnishing school buses offered an unlimited 
number of used school buses to be available insoii.i at el y , is 
that or not true?
a Yes, of course, there are other phases other than
offering buses to us, how old they are, whether they meet 
the qualifications of the state, whether we have to get 
waivers on this, whether we get our money reimbursed from 
the state if they are over ten years old, there's many facets 
to it.
r. Mr. McCullough's affidavit says, "The affiant
held conferences with different manufacturers of school buses 
and on June 23rd Mr. Gene Samsons, a representative of this 
company came to Chattanooga and stated that if an order were 
placed that day or the next morning his company could deliver 
the buses by September if the Board would accept whatever

Imodels and features were available."
A This was June the 23rd, is that correct?
( j June the 23rd, yes. But was any effort ever
made to contact him to find out what models and features

• c  - ^



Dr. Henry - Cross 1857

were available?
A That is an offer placed that day, 1 i* the
interpretation.

t lias any effort been m a d e to determine whether
or not the sane thing could be done new if an offer were 
placed now?
A i don't know exactly but 1 am sure he >»-̂e
contacting many people in different directions.
W But you don't know that he has contacted many
since June the 23rd, do you?
h  I couldn't express it, I don't know, really.
Q All right, sir. And now then—
A (Interposing) I feel sure that he knows that he
has got to have buses and he is desperately trying to get
them.

Q You say he is desperately trying to get them?
A Trying to find out where he can get them, of
course, there's a long procedure you have to go fehr-enflh as 
noted there in the affidavit.
Q Well, now, the Bluebird Body Company of Fort
Valley, Georgia, stated that if an order were received toy 
June 16th they could make delivery July 16th, that is today, 
they could make delivery toy November the 16th, so if the 
Court were to approve your plan today or any plan you could 
order the touaea and Bluebird ia one of the most highly



reputable canqpanies, isn't it, that is where Nashville yets 
their buses?

I A i eight.
I Q You could get them by November, couldn't you?

A Yea, we are not saying that. In other words,
I, there is no attempt on our part to delay the situation.
If{' there are schools that we could go in piecemeal pattern to 

do this as we get transportation.
Q You could tuaybe rent some buses until your new
buses were delivered in November, couldn't you?
A We don't know that.
U Well, you haven't made any effort to find that
out, though, have you?
A He called the Southern Coach bines.
L You could use the Southern Coach bine probably
until then anyway?
A No.
Q why not?
A we have gone to them and asked them and they very
definitely said they did not have the buses.

1 0 Ditto*t you use Southern Coach bines at one time
in the past?
a For very limited situations. Their buses are
very cxld, in fact, they may not even be here when school

Dr. Henry - Cross 1858

starts.



Dr. Henry - Cross 1059

Q Sir?

A i really don't know that,they are having their
own difficulties, I would hate to have to depend on theta.
y T h * Y  <*° operate the city bua lines in Chattanooga?
a Yes. sir.
h Are they subsidized by the city?

Yes. sir.
u To what extent?
« Conmissionar is back there, I don't know.
U Over a hundred thousand dollars, isn't it?
A I think so, it happens quite periodically they
axe in the City Cosmissian asking for sore Money.

So they are under an obligation to the city,
aren't they?

A Well, sooe o± the buses that they have I don't
think the State Department of Education would even give us 
a waiver to operate as school bus***
w Some of them, would some of them that they have
cosily?
A Oh, yea.
U Have you made any effort to determine how many
of those would comply?

A Yes, I think we asked them, talked to them about
it but they frankly weren't interested.

About how many of their buses would comply?

n-.poe t * s • N f



1 0 6

* 8

A I don't know exactly.
Q You haven't determined that. How, let roe ask
you thxs: What effort did you all make before June to try 
to taxe this situation into account and prepare for the 
busing situation?
A ell, the Court gave us the order, we started
writing orders and looking.
u But you have known, you have known for a long
time that this school system would have to he meaningfully 
integrated, haven't you?
A Well, Senator, X don't know anything 1l the
Board tells me to start, start using money or ordering things, 
I can't even— the Board can do that.
Q I am not talking about you. Doctor.
A Yes.
Q Dr. Henry, I am talking about the Board. The
Board has known, the Board knew about the decision in Alex&nde 
vs. Holmes in 1969, didn't it?

Dr. Henry - Crocs JLtt60

i

I can't vouch for what they knew.
Did you know about it ss a school official?
I knew limited about it.
You knew that it required immediate relief in any 

school integration, didn't you?
A Well, there's a lot of it I don't understand aboutit
it, still doubts in my mind, period.

A

Q

A

C*

• T .



I

i Dr. Henry - Cross 1061

v» Well, all right, la it your teetiraony then that
the Board, that neatlur the superintendent nor the Board has
took any definite steps to inquire or make arrangements, 
tentative or otherwise, for school buses until after the
June 23rd order of this Court?I«ii /v We did not, that's right, we didn't know that.

ii

ij u You didn't even on May the 19th when the
Court sard In no uncertain terms from the bench, from that
very bench there that the school system would have to be
integrated?
A Yes, as soon as we heard the order of the Judge
we started.
c Why did Mr. McCullough have the first conferences
on June 23rd, the date of the Court order? 
a I don't know unless this is the first time
telephone calls were received.
<2 I see. Before that on June the 7th he had a
meeting with southern Coach bines?
A Right.
Q Dow, with regard to the purchase of vehicles,
you have mentioned costs here. You mentioned estimated 
capital outlay of $9,200, those are 6 6 -passenger buses, too. 
aren't they?
A I think so.
Q Isn't that a variance with the State figure of



Dr. Henry - Cross 1362
$9,200, tliose are 6 6 -passenger buses, too, axen*t they?
A 1 think so.
u Isn't that a variance with the State figure of
$7,200 for a 6 6 -passenger bus? 
a That I am not familiar with.
<U You are buying buses that have extra features
on then, aren't you?
A Yes, I imagine so in sane cases.
0 Then isn't it kind of inconsistent to come in
and say to the Court that, "We need delay because of the 
expense," and then at the same time say out of the other 
side of your mouth, "We are buying the most expensive thing 
available."?
A Wow, that 1 am not sure of, Mr. McCullough's
letter and what he asked far, 1  don't know exactly what he 
asked for, but I know companies trying to sell things try 
to give you the most expensive model they can, especially 
if there is a shortage of a model.
U You also have a notice and attachment to Mr.
McCullough's affidavit which indicates that you could get 
unlimited quantities of the 6 6 -passenger buses by January 1, 
1972. They would bid an them from the Taylor Urs dales?
A I have great faith in my School Board. If there
is a cheaper model available and the price is right that we 
will and up with the cheaper model. Excuse me, no offense.



169 Ur. iionry - Cross 1363

Tape 7

l|
i.h

W You have talked about delay in procedure and you
have attached a copy of the ordinance which requires the

* I

jj

matter a to be out at hid. Hay I call your attention to Page 
70 of that ordinance, the very last attachment to Hr. 
McCullough’ a affidavit wherein it is said, "Provided, how­
ever, secondhand equipment or specialized equipment or equip­
ment purchased free any Federal State or agency
where it is not practical to take bids may be pnrrhuMNl 
without taking bids."?
A Yes.
Q So that in an emergency if we really wanted to
get the job done, Or. Henry, we wouldn't have to take »ii 
this tune and put this out for f*lK 1 ir% bids, would we? 
a  Under this part of it you would not have to, 1

mean.
u And, Or. Henry, if we wanted to, if the issue
were whether we ware going to keep our segregated schools

'and we had to buy these buses we would get tfrae* fast, wouldn't
we? I]
A I think that is a little erroneous concept. We
are not saying that we want to delay the thing an entire year, 
we are saying we want to delay it until we can get the buses, 
it's simply a mechanical matter if they come in September, 
October or November, if we can get the plan approved the 
schools we can use them then and move in that direction, it's

v • ® ~  ~ . v • - ' * n  • *  t c ► f r



Ur. Henry - Croso 1S64
to our advantage to implement the program as quickly as we 
can but if we haven't got then I can't carry the students.
<2 ur. Henry, all these affidavits and reasons for
delay, every one of then were gotten up in July, weren't
they?
A  Th t's right.
q Why didn't you get then up in June before this
Court modified its order on the basis of the Goss decision? 
A We didn't know things were going to be delayed
like they were, we were hoping as quickly as we could we 
would get things underway.
q You didn't know that you would be given an
opportunity to ask for further delay, did you? 
a we didn't know, neither did we know this, we
thought by now we would be implementing the plan rather 
than getting it approved.

0  if you were not given that opportunity to ask
for further delay you would go ahead and isplemeat the plan, 
wouldn't you?
A without the buses I don't know hew we would
carry it out, frankly.
C Well, you could go ahead and or tier the buses
now, caul (in' t you?
A No, sir, I can't order buses without the School
Board and the School Board can't order them without the money



171

!

I

■» ' ii
Dr. Henry - C r o s s  1865
or without the City comwiaaian.
Q If the Court ordered then to order then, to get
then, wouldn't you assume that they, as public officials,

.4 would do what they were told?
il
it

; | A 1 assume that they would.
a

Q Yes. How, then you indicated that the Boat
II

important reason that you were asking for a delay Is that 
you need the tine for human relations. How, what that really 
means is, I assume, that you need the time to try to alleviate 
the feeling in the community, is that it?
A Blacks and whites.
Q All right. And that is the feeling of the
hostility to busing?
A I wouldn't say It's the busing, it's just the
situation.
£ The feeling of hostility of a substantial degree
of integration?
A Well, I don't even know it's integration because

" " * ■ * “ • “ - - ~  i
even attempting to implement the plan, but problems are
existing.
w You shake your head in the affirmative, you would
agree that that feeling is to some extent a feeling of 
hostility to integration?

il

a I think, this aggravates the feeling, yes.



Dr. Henry - Cross 1866

U And will you explain to the Court how you fool
that tine is going to work to resolve that problem? 
a i think it is a natter of how efficient the staff
can operate and the people in the oosuunity. the ministers, 
the different associations, in bringing people together, »»>̂ t 
we can get together to organize and try to the atti­
tudes that seen to be deteriorating within the year*
Q Dr. Henry, were you aware that Dr Let son, the
present superintendent of the Atlanta School System, 
presented himself, or was here in 1960 and he and Mr. Witt 
were saying that very sane than?
A Yes. sir.
w Were you aware that Or* Benny Carmichael was here
in 1965 and he was saying that he needed B m m  fr* —  to
organize and was indeed representing to the Court that he 
was having regular comuni ty meet Inge in that regard? 
a But at that period of time weren't throw
fire bombs and this sort of thing*
Q Didn't they throw a stink bomb right after the
School Board first made an announcement that it was going to 
caraply with the Supreme Court decision in this case in 1960?
A But they didn't throw things at Mr* Mapp's house
at that time.

u I see. W e ll, Mr. Mapp hasn't complained. He
hasn't taken the stand and conplained yet, tla« he?

. b -



Dr. Henry - Cross 1867

nouse ?
A

ox it.

240.

S i r ?

No.

You a r e  r e f e r r i n g  t o  tile  boobing o f  Mr. Happ' e 

Y e s . and Mr. iienry may be n e x t ,  so  I  am c o n s c io u s  

A ll  r i g h t ,  s i r .

I t ' s  n o t th e  id e a l  c l im a te  1 would l i k e  t o  c a r r y

o u t t h i s  s i t u a t i o n  i n .

w But n o tw ith s ta n d in g  a l l  o f  th e s e  m a tte r s  t h a t

you m en tion ed , l i k e  moving th e  f u r n i t u r e  and th e  f e d e r a l  

program s and th e  e s ta b lis h m e n t o f  th e  s c h o o l z o n e s , th o s e  a r e  

a d m in is t r a t iv e  m a tte r s ?

M ech an ics .

Mechani c s .  And th e y  a r e  o r d i n a r i l y  h an d led  any 

time you make a change in  th e  sch o o l sy stem , a r e n ' t  th e y ?  

si (W itn ess  moves head up and dow n.)

Q S i r ?

a  Y e s .

- I t  i s  p h y s ic a l ly  p o s s ib le  t o  r e s o lv e  th o se

matters and g e t  th e  sch o o ls  in  o p e ra t io n  by Septem ber, i s n ' t

it?

a From now u n t i l  th e n ?  I  am n o t s u r e .

H a v e n 't you been doin g som ething about i t ?



ox. ilenry - C r o M lata

of c o u rs e  we have been d o in g  some th in g s  l i k e  in  

tiie  s a t e l l i t e s  and moving equipm ent th e r e  t o  Kirkaoan b ecau se  

we  th o u g h t Kirkman was co m p le te ly  o u t o i  i t ,  we have been 
moving equipm ent in  t h a t  d i r e c t i o n  b u t, no , we d o n 't  know 

w h ether we would be allo w ed  t o  c l o s e  c e r t a i n  s c h o o ls  o r  n o t ,  

so  we c a n ' t  move equipm ent u n t i l  we know.

o But th e  S ch o ol B oard h a s  known s in c e  May t h a t  i t

was g o in g  t o  have t o  r e - o r g a n i s e  th e  sch o o l sy stem , h a s n 't  i t ?  

h Y e s , we have been w orking t o  d e s e g r e g a te  th e  s t a f f

and a l ig n  th e  p e o p le  bu t we d o n 't  know what sch o o l i s  g o in g  

t o  be c lo s e d , w hat d i r e c t i o n  th e y  a r e  g o in g , w hat d i r e c t i o n  

t o  move f u r n i t u r e ,  th e r e  a r e  many m e ch a n ica l th in g s  t h a t  we 

d o n 't  know u n t i l  we a c t u a l l y  g e t  th e  f i n a l  a p p ro v a l.

Q Y e s . B ut th o s e  m a t te r s ,  l e t ' s  s e e  how n e a r  a r e

we t o  th e  b eg in n in g  o f  s c h o o l?

A F iv e  w eeks.

Q F iv e  w eeks, ’-'hose m a tte r s  ca n  be a c c o r d .i s h e d

in five weeks p h y s i c a l l y ,  ca n  th e y  n o t?

A I c a n ' t  vouch f o r  t h a t .  Of c o u r s e , t h e r e  i s  a

p o s s i b i l i t y  o f  w orking n ig h t and day we c o u ld  i f  we f i n a l l y  

g e t  a C o u rt o rd e r  and C o u rt r u l i n g .

G Y e s . You c a n ' t  sa y  p o s i t i v e l y  t o  th e  C o u rt t h a t

you can* t  do i t ,  ca n  you?

A No, I  c a n ' t  p o s i t i v e l y  sa y  I  c a n ' t .

G w ith  re g a rd  t o  t h i s  m a tte r  about f e d e r a l  program s



Ur. nenry - Cross 1869

anci setting up Head S t a r t s ,  d o n 't  you have Head S t a r t  C e n te rs  

a lre a d y ?
!

a  Have th e n  a lr e a d y , y e a .

w Yes. w e ll , you a r e  g o in g  t o  have t o  s e t  up sane
new Head S t a r t  C e n te rs ?

-

A w e l l ,  we d o n 't  have t o  stove one i f  we ca n  c l o s e

a certain b u ild in g , we w ant t o  s o v e  one from  t h i s  o ld  b u ild in g ,  

it's a t i r e t r a p ,  b u t th e  b ig  th in g , o f  c o u r s e , in  T i t l e  1 ,  o u r I 

£ollow-th ro u g h  p ro g ram s, i s  th e  i d e n t i f i c a t i o n  o f  s tu d e n ts , | 

we start m ixin g  s tu d e n ts  in  t h i s  s o c io -e co n o m ic  p o s i t i o n ,  

it's a problem o f  how t o  a c t u a l l y  know w hich s c h o o l i s  

eligible under T i t l e  1 o r  how t o  d e s ig n a te , we t r y  n o t t o  

instill in th e s e  c h i ld r en  in  th e  p a s t  on th e  »  of socio­
economic l a b e l s  b u t now we d o n 't  know.

Q  Does th e  F e d e ra l  Government pay p e rs o n n e l t o  h e lp

you with that?

' They w i l l  send a team  in  t o  h e lp  th e  s i t u a t i o n .

They are n o t s u re  y e t  how t o  h an d le  i t .

u Have th e y  s a id  th e y  c o u l d n 't  g e t  th e  jo b  done?
.

h  They s a i d  t h a t  th e y  w ould l i k e  a s  tim e  a s

possible.

B ut th e y  h a v e n 't  s a id  t h a t  th e y  c o u l d n 't  g e t  th e

job done?
A Ho, th e y  h a v e n 't  y e t .

*■- A ll  r i g h t .  And w ith  re g a rd  t o  s c h o o l zones, you



1 7 0

mean to t e l l  me you axe p r e s e n tin g  a p la n  h e re  t o  C o u rt 

and you h a v e n 't  a c t u a l l y  worked o u t t>w zo n es?

A In  a l l  o f  th e s e  zo n es we would l i k e  a d ju stm e n ts

i£ we possibly c a n , t h i s  is a n o th e r  re a so n  we need th e  y e a r ,  

there are fringe l i n e s  t h e r e ,  we a r e  d e a l in g  w ith  d a ta  

assumes t h a t  people a r e  g o in g  t o  s t a y ,  a  r e l a t i v e l y  l a r g e  

number o f them w i l l  s ta n d  s t i l l ,  h u t th e y  may move, b u t in  

a d ju s tin g  t o  s i t u a t i o n s  i t  i s  d i f f i c u l t ,  e s p e c i a l l y  w ith  

principals in  s t a r t i n g  t h e i r  s c h o o ls  and knowing w here t h e i r  

people are.

W e re n 't  yo u r p u p il l o c a t o r  maps t h a t  you p re s e n te d  

t o  t h i s  C o u rt j u s t  a  few weeks ago  h o n e s t ly  p re p a re d ?

A Y ea , bu t we a r e  n o t e x a c t l y  s u re  how a c c u r a t e

th e y  a r e .  We ra n  i n t o  many d i s c r e p a n c ie s  t h e r e ,  we ra n  i n t o  

one p r i n c i p a l ,  I  d o n 't  w ant t o  say  d is p a ra g in g  th in g s  about
I

th e  young la d y , b u t she had th e  one w hole s e c t i o n  o f  h e r  

coirs.u n i t y  on th e  wrong s id e  o f  th e  f re e w a y .

D r. H enry, d o n 't  you alw ays run i n t o  m inor e r r o r s
i

and d i s c r e p a n c ie s  in  c o n n e c tio n  w ith  m a tte r s ?  

a Y e s , b u t w hat 1 am t r y i n g  t o  sa y  i s  t h a t  in  t h i s

period o f  tim e , f i v e  w eeks, t h e r e  i s  a  l o t  t h a t  h as  t o  be 

acco m p lish ed  and t o  you t h a t  may seem t r i v i a l .
i

Q Ho, i t  d o e s n 't .

A I t ' s  a trem endous t a s k .

<■-' U nderstand me, i t  d o e s n 't  seem t r i v i a l  a t  a l l .

Dr. henry - Croas 1870

I



I I

1 7 7 j u r .  iienry -  C ro ss  1 8 7 1
'I

** I t ' s  a trem endous t a s k  t o  y e t  i t  o rg a n is e d  and

get it done. We would l i k e  t o  have an i n - s e r v i c e  workshop  

with Title 4, we would l i k e  t o  b r in g  o u r s t a f f  to g e th e r  andI
p re p a re  them f o r  t h i s ,  i t ' s  j u s t  a l o t  o f  th in g s  t h a t  h as  t o  

be done. We a re  n o t as k in g t o  w a i t  th e  e n t i r e  y e a r ,  we a re

j j u s t  ask in g  when we can  do i t  t o  be a b le  t o  do i t ,  t o  be
il
I! co m p le te d .
I!

t' Your law y er i s  i n c o r r e c t  when he asked th e  C ou rt
It
;i xn th e  n o tio n  f o r  f u r t h e r  r e l i e f  t o  w a it  u n t i l  Septem ber o f

!; next year?

A I  th o u g h t he s a id  " n o t  l a t e r  them S ep tem b er.*

u So th en  a l l  you a r e  a sk in g  i s  t o  w a i t  u n t i l  when?
II

A U n til  we ca n  g e t  th e  equipm ent, th e  f a c i l i t i e s .

u When i s  t h a t ?

A When we do g e t  theca.

£  So th e n  i t  i s  an i n d e f i n i t e  p e r io d , i s n ' t  i t ?

A But n o t w a it l a t e r  th a n  Septem ber o f  ' 7 2 - ' 7 3 .

Q B ut you ca n n o t s t a t e  t o  th e  C o u rt p o s i t i v e l y  t h a t

i t  c a n n o t be done b e fo re  Septem ber 1 s t ,  ca n  you?

A  My own p e rs o n a l  o p in io n , f r a n k ly , I  th in k  t h a t  i t ' s

a lm o st im p o ssib le  t h i s  l a t e .

it W ell, a re  you s t a t i n g  t h a t  i t  i s  im p o ss ib le ?

A I  d o n ' t  know t h a t  t o  s t a t e  i t  a s  a f a c t ,  t h i s  i s

j u s t  a p r o f e s s i o n a l  o p in io n  t h a t  f ra n k ly  I  f e e l  t h a t  we need
j

more tim e . I  am n o t t a l k i ng ab o u t more tim e t o  d e s e g r e g a te ,



Dr. Henry - Cross 1872

I au talking about more time Just to carry out the mechanics 
of doing the job.

0. Well, would a month bo sufficient?
h I don't know.
U I see. So you are stating professionally that
you need more time but you are not stating, you can't give 
a professional estimate as to how much time you need, is that 
it?
A I am not certain of bow much time, it depends on
how lax sea are delivered. I have been promised a car for many 
months, it didn't come in until six months later. I am not 
sure when a bus company says in November, it may <'<**** in 
November, it may came in December, we can't bus students 
until we have buses.
^ The primary thing, the things that you are talking
about are the buses and the coemunity hostility?
A Well, I think probably the community, well, I
don't mean to be— I want to say that community hostility is 
just a matter of human relations, I would say that it is a 
matter that we need to get together and aside from all of the 
rumors and everything, going to people so they definitely 
know they are going to this school or that school and the 
parents from those schools can get together and work together 
and as advisory committees and work out their problems instead 
of having a mass of people all at once.



Dr. iienry - Cross id73

C That's the greatest part of it?
A This, I think, is the most ijqportant.
w And you can't do that, you haven't done anything
on that up to this tine?
A Well, we are not sure what school they are going
to and what direction.
U And you can't accomplish that in five weeks' tin*?
A To be successful at it.
u Sir?
A To be successful, I doubt it. There may be
isolated areas where you could. I know one specific area 
where the principals have been working together already just 
m  anticipation that they will be left to work together and 
that's in the Barger-Sunny side area, those two principals 
have been working together and working with people there even 
with the situation thinking that they may not be able to 
carry on the process, but they would do a much better job. 
u Suppose the Court told you to do it, to get it

<
done, would you?
A I would hate to have to carry those students on
lay back.
Q Didn't you testify that the movement of heavy
equipment from Kirkman was going faster than you expected?
A Yes.

I
You are already moving under this plan, aren't you?



Dr. henry - Cros# 1374

A On that part of it, yea.
w What other parts are you moving under?
A Desegregation of staff.

All right. You have already made your staff
ass ignoaent a  7

A hot completely, we don't have the schools.
! u You have made those where you do have the schools,

you have made them?
i A Two or three times.

w And you already have your staff integrated
il according to—

A (Interposing) Hot completely. We have made
some starts and stops and it depends on the schools that 
we use.
Q But there Is no major problem in connection with
that, I take it?
A well, it's just time again, all these tilings
take time. We feel we can do it but it's going— we will be 
right up to the limit.
U while you are on that, do you have any black,
principals assigned to any formerly all white schools?
A Dot yet.
Q But you have taken a white principal from down
at, where is it. Lookout or St. Lino, and assigned him over 
to a white school, passing right by that Alton Park Junior



!

High School, haven’t you?
A Yes, sir.
w And you have assigned a hlack principal to that
Alton Park School, haven't you? 
a Yes, sir.
Q So thus far on faculty assignments you arc still
adhering to policies of identifying the school by the race
of the principal and the administrator?
A  I hope that people will not be looking over our
shoulder every time we assign a principal, I would like to 
have more freedom of operation on that.

We did move in this direction and in this 
direction and asked the principals in this direction if they 
would like to go across racial lines. They are two good 
people, we needed two buildings that needed to be covered 
earlier in the year, frankly, we are going to try to cross 
lines in this direction.

Dr. Henry - Cross lt*75

<!i
I
i
j

|

I

0  But,Dr. Henry—
A (Interposing) This is just one incident, one
time we knew when we did it it would be brought up today.
We thought it was necessary at that time in those two areas.
W Dr. Henry, weren't you made aware that freedom of
choice and faculty and staff assignments had been disapproved , 
by the Courts?
A Yes



Dr. henry - Cross 1876

<j But yet you are adhering, you adhered to it in
the assignment o f these two particular principals, didn't you? 
*' 1  don't want to offend anyone but I hope in the
operation of the school we don't have to go to Court 
every time we assign a principal.

Well, right new we are talking about desegregation 
of the school system, aren't we?
a But this is one in 33 schools or two in 33 schools
0 What two schools, Alton Park and what?
A Alton Park and Brainerd.
^  And you assigned the whits principal of Lookout
Junio. High to Brainerd? 
a Right.
1 All the way across town. And then you have a 
black principal right down here and you assigned him down 
at Alton Park?
A  Yes.
\j. The black principal at Davenport you assigned
to Alton Park?

A The criteria we use in putting the raost effective
man in the raost effective place.
u Why is it you haven't yet assigned any black
principals to formerly white schools?
A We intend to, we haven't gotten to it yet.

I see. Just one more minute. Now, with regard



Dr. Henry - Cross Id 7/

to special education pupils. Your plan says you are 
assigning than with disregard for race.
A Yes.

■
Does that oean you are going to assign then, that 

you are going to integrate them?
A well, for special education people that covers
a broad area.
(j Do you have special education classes in your
schools?
A Yes, practically all schools,
d Are they integrated? I
A Yea.
u Then they should not be assigned with disregard
to the race, shouldn't they be assigned for the purpose of 
integrating the classes?
a Well, if they are in the school this is normal,
we don't distinguish then frcu English class, natin class 
or anything else, if they are in the school and cane under 
the special education from the Itate Department in that school

I
they would go in that class.
Q why did you not provide in your school construction
and site selection plans that you would plan programs and

1

construct the schools in such a manner as to maximize inte­
gration and prevent the segregation of school nuildings, isn't! 
that wliat has happened?



Henry -  Cross Id  78

A 1 thought we were trying to use the correct
terminology from what we had. There was no intent not to
comply with it.

w You were agreeing that it should be required?
A X am not exactly sure of that. We tried to put
down just what the Court required.
U Well, didn't you agree with the Coleman report?
A  Yes.
w And wouldn't that require the maximum integration
and prevent segregation?
A In the building construction and all this I said
we tried to conform with that as close as we could.
W You didn't state that in your plan, though, did
you?

A Well, I am not exactly sure, I thought we put
everything down.
w All right. You will not have any objections to
providing the data which we requested in your periodical 
reports, would you?

A Well, I don't want to be doing it for now on.
This is the sort of thing we would sort of to-
A (Interposing) I mean with regard to the data
that was requested, you wouldn't have any objection to that, 
would you?
A I don't think so



Dr. xienry -  crosa 1879
~ All right, air. New, then if the Court should
disapprove this plan you have already got a plan that will 
wore effectively integrate the school system, at least in Oie 
junior high and high achool, I mean the junior high and 
elementary schools, haven't you?
A No. it would take many hours of work to get it
to where we have this one, we just simply have the beginning, 
d How many hours?
a oh, I don't know.
w You don't have any estimate as to that?
A No. I know we have spent many hours on the
present one.
y how many hours?
a I wouldn't have any way of knowing, it would
take days.
U Now many days?
A Weil, the mechanics of it, probably no more than
a  week or two, but then, of course, every aspect that we have 
to go back to the Board and get approval and this sort of 
thing, it may take time.
U So the time you are talking about is the time
to get the Board to agree to integrate the school system? 
a No, this is part of it, this is a part of the
mechanics, one part, and this, of course, is a part, 
w How long did it take your staff to draw that



I1
1 8 6 o r . Heiiry - Cross 1300

altexnative plan?
A Oh, it was one week together gathering data,
probably three.
W Then they have got a plan that it took there three
weeks to draw. What else remains to be done on it?
A Well, a lot of this is simply just supposition
and what we drew up we didn't know exactly, same of these |
areas, well, I say we'll take 20 per cent of it from Avondale, |
lop them off, add them to Glenwood. or something, we have to 
go in there and get down to the hard base line as close as 
we can and determine exactly. iIQ Didn't they use the pupiJ locater maps in preparing
that plan to present to the Board?
A Not at all times but the final one that we
submitted, yes.

All right. And that's the alternative one that
I

1 are talking about?
A Not the alternative one, we never got it to the
pupil locater maps to use that. We didn't get that far 
along on it.
Q You didn't? The Board rejected it before you
could get to the pupil locater maps?
A We brought in the general idea behind it after
the Board approved this one, the one that we are submitting 
now, we had to go back to the same thing and clean it up ami

I



I

1 8 7

Tape B

in time I would be hoping that if given time that wo could 
go in here and make sane further clarifrcatiana and clean up. 
b Hew long did it take or how long would it take
to get that other plan in shape?
A It took about three weeks and probably another !
week to finish it up.
Q About another week to finish it up now. Okay.

THE COURT: Do you have some redirect examination?
iHR. WITT: Hot very much.

THE COURT: Well, let's take a ten-minute recess
at this time.

(Thereupon, a recess was had.)
REDIRECT EXAMINATION

r.

o Dr. Henry, in a welcome moment of levity during
your cross examination there was a reference to your being 
fired perhaps. How does the Board act, how does it make its I

jdecision, by what kind of a vote?
A I imagine the majority vote.
0 Would it make any difference to you if you were
fired with a three to four vote or a five to two vote?

MR. WILLIAMS: I object to that.
THE COURT: Yes, I don't see the relevance.

C Once the Board acts by a majority vote is this

Ur. loenry - Cross - Redirect Idtil

legal, as you understand it?



itk s

R This becomes the opinion of the board,
u jx n d as the superintendent once they vote a r m  you
under an obligation to support it?
A Yea, sir.

MR. WILLIAMS: May it please the Court. I
strenuously abject to this attempt to intimidate an es%>loyee 
oi a  public agency like this.

MR. WITT: Intimidate?
MR. WILLIAMS: In open court, I think it is.
MR. WITT: There was no intention to intimidate.
THE COURT: Let me ask this witness. Is there

any question but the plan that has been submitted, Exhibit 
ho. 146, had the official approval of the Chattanooga Board 
of education, has it, Mr. Henry, had that approval?

THE WITNESS: Yes, sir.
THE COURT: All right.

Q How, Dr. Henry, in the assignment of students,
how are students assigned to the special education classes? 
a well, basically, of course, the school that they
are in has a special education class. The school that they 
are normally zoned to, if it doesn't happen to be one there, 
the special education staff would assign them to the nearest 
location or the location where it is the moat feasible to 
send them.

w Who decides that they are in the special education

or. lienry - Redirect 1002



Dr. Henry - bedirect ltiBl

category?
!

A well, of course, they axe tested for tnrii by our
special eA*catictt people. I have Dr. Von* a division of pupil

|
personnel and they are, of cau se, tested to lind out whether 
they fall in this category and then assignment are by

*

Dr. McClure's people in special education.
Is race any part of this decision? j

A No.

^ Dr* Henry, I believe that you have read the
Iorder of the Court from the on May the 19th.

A Yes.

w On Page 20 this was said, "With regard to the
matter of pupil ratios, as I have just pointed out, the 
Supreme Court has stated that these ratios are certainly an 
important indicia of whether or not desegregation has been 
accomplished. Any particular school that is identifiable as 
a white or a Negro school should be looked to by the Board. |
If imbalance exists in a particular school, the Board 
have the burden of establishing that that imbalance was not 
the consequence of any past or present Board action."

It goes on to say, "I might say this further in 
regard to that matter. Of course, the easiest course, that
is in terms of administration, the easiest course would be 
just to take the racial composition of the schools and 
balance it in each school without regard to who or what was

I



Dr. henry - Redirect 1004

responsible for that Imbalance. That, of course, would 
relieve the Court and relieve the parties to this litigation 
of any responsibility for determining w 1k> or what was 
responsible for any particular imbalance. "

Do you remember this part of the Judge* s order?
A Yes.
Q Did the School Board respond to this directive
from Judge Wilson with regard to determining the causes of 
racial imbalance?

HR. WILLIAMS; I object.
THE COURT: I don't believe that was all that

was said. I don't see the exact relevance of that. You have 
read a portion of my instructions and you are asking the 
witness now to comment upon them.

HR. WITT: Mo, Mr. Williams opened this up. X
am asking him whether or not the Board followed your 
directives on this point and asking him if the Board did 
wnat was stated.

THE COURT: Did I not go further on this
particular matter?

MR. WITT: Yes. "As I said, 1 do not read the
Swan case, or any of the other cases, as permitting the 
Court to just disregard the causes of imbalance in any 
particular school or to assume without looking that it is
the result of either past or present Board policy."



Dr. henry - itedirect iaai>

MR. WILblAMS: May it please the Court, to ask
the superintendent whether the hoard followed your Honor's 
met ructions is to try usurp the Court's function.

THE COURT: Yes, I believe that is getting into
a question of law.

IMR. WITT: 1 am going to ask. him if he was
present at all the meetings that went into < * 1 1 o f this. 1 I
am merely asking him whether or not of his own knowledge did ! 
the Board and the staff follow the orders of this Court.

THE COURT: He may answer.
THE WITNESS: Yes.

u What was the decision with regard to this
particular investigation, if you recall?
a Well, I know, of course, they looked into each

iarea and each school to see what had been the cause and yet 
they stxll came up with the idea that all students, all 
schools should be desegregated, that in spite of the cause 
that every student should have the opportunity to exist in

.
this pluralistic society have this experience of cross-racial 
lines and, therefore, would be an attempt to desegregate all 
schools.

MR. WITT: Thank you. Dr. Henry. I
MR. WILLIAMS: May it please your Honor, I have

nothing further except to request that Dr. Henry be directed 
to file with the Court as an exhibit the alternative elementary



ox. /ionry - Redirect lci86
and junior high plana to which ho has referred as a natter of 
record.

THL COURT: All right. If those records aru
available just file them as an exhibit in the case.

MR. WITTi May it please the Court, I aia not 
certain that those records are identified in this form, not 
to be misleading, I think if they are fried they would have 
to have detailed explanations with each because they are work 
papers, they were never acted upon by the Board for anybody 
to give any accurate characterizations to their status other 
than work papers and would be misleading.

THE COURT: Well, we will consider all of
matters if and when they have been identified by the witness.

(Witness excused.)
Mli. WITT: May it please the Court, the defendant

has no further testimony.
THL COURT: All right.
KIv. WILLIAMS: If it please the Court, I would

like to call Dr. Stolee.

MR. WITT: May it please the Court, would it be
appropriate to ask for what purpose this expert is being
ottered?

i.HL COURT: Well, I assume that will develop in
the examination of this witness.

ih<. WILLIAMS: May it please the Court, in order



ur. atolee - Direct ids'/

to save tiitta may we stipulate that Dr. btolee, I wonder if 
it nay be stipulated by and between counsel that Dr. Stolee's 
testimony regarding his qualifications—

THE COURT: (Interposing) Yes, that has been

placed in the record previously at the hearing in  Kay, no 
purpose in repeating that at this tine.

a witness called at the Instance of the plaintiff in rebuttal, 
being first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

3X.1SU jffm&Kfii.
u This Is Dr. Michael Stolee?
A Yes.
Q Dr. Stales, have you had occasion to examine the
plan, the amended plan of desegregation filed by the defendant* 
in this case on 16 June, 1961?
A I have had the opportunity to examine the plan
that was written on eight and a half by fourteen p a p e r .  U p  

until the hearing started this morning I had not seen the 
maps that accompanied it.
w Have you taken a look at them this morning?
A  Yes.
0  I will ask you whether or not you have also
examined the objections of the plaintiffs to that plan?
A  Yes, I have.



Or. otoltw - Direct ld8S

q  And have you considered all of these materials
in the light of your own plan and the other data which you 
cunaxviered in the previous proceedings in this case?
A Yea, I have.
u State your findings and conclusions, please.
a well, ny conclusion concerning the plan submitted j
by the School Board is that there are at least five of the 
elementary schools that are not reasonably close to losing 
their racial idsntiflability, that one of these five schools j 
is predominantly black, the other four are predominantly 
white or overbalanced in those directions.

■

<u would that be the Barger, Carpenter, Long,
Rivermont and Sunnyaide Schools as stated in Paragraph la 
of the objections?
A Yes, that Is correct,
w All right.
A 1 further found that there seesos to be a rather
constant pattern of having the black children the much larger 
burden of any inconvenience that Blight result from desegregating 
the schools. There are. for example, five elementary schools 
proposed to be dosed. Of those four are located in primarily 
clack ccranunitiea and last year served primarily black 
children.

1  found that the number of proportions of small 
nlack children to have to be transported was much higher than

I



Dr. s to le G  - Direct 1889

tne proportion* of small white children. I don't believe it 
ie possible to desegregate the school ay. lain without having 
to transport numbers of children, but this is a burden 1 feel 
that should be carried or distributed evenly between the two
groups.
U Will I interrupt your train of thought if I stop
you from time to time?
A ho, go right ahead,
b All right. While you are on that subject what
was your response, if any, or what comment, if any, do you 
have in respect to Dr. Henry's statement that this was or 
may have been caused to see** extent by the necessity of 
clustering in two instances?
A I have made many of these plans, sir, and I find
that I tend to just start to group schools together and 
until 1 was conscious of an inequity among groups of children 
I was just doing it at random and didn't think about it and 
I am presuming this is what happened. I can't look into the 
causes of it, all I can say is the effect appears to me to 
be discriminatory.
W what X am asking you is it mechanically possible
to eliminate this inequity in the Chattanooga School System?
A I believe so, yes. I heard testimony earlier
that the plan that I presented before this Court approximately 
a iuontn ago was the same but I looked over my plan and 1



Dr. o Colee - Direct 1690

found that tuore were first grades located in nine schools 
which had been primarily black last year and eleven schools 
which had been primarily white last year, compared to the 
five black schools and the 13 white schools in the School 
Board*s plan.
'j So that in the working out of your plan— have you
got tiie exhibit number on that particular exhibit?
A On the plan that I submitted?
G Yes.
a The elementary plan was Exhibit 126.
G That's the one we are talking about now?
a Yes.
w In Exhibit 126 the elementary plan presented by
you. which it also involved some clustering, did it not?
A  Yes. it did.
u The burden of the younger children having to
travel was spread almost equally between the black and white 
children, is that correct? 
a Yes.
G Whereas that was not. as you have indicated, five
out of the 15 majority black schools had to travel, that is, 
the children in the first grade had to travel, whereas only 
13 exit of the 13 majority white schools did?
A Yes, as 1 analyzed it, sir, if we took the 15
schools which during the year immediately past had a majority



1'J 7

(j u L a c k  anrolliaent under the plan that I submitted to the Court.
i
l| nine of those 15 would have had a first grade. Under thg 

School Board's plan five of the 18 white schools under the 
plan that I submitted— 1 1  would have. 1 1  would have had first 
grades, under the School Board plan 13 would have first grades 
under Exhibit 126.

w Unless there he any misunderstanding about this,
what significance does this have in this problem of first 

|j grade children of tender years being the ones to move, what 
ij significance does this have in terms of parental reaction?
I
|i A I am glad you added the terms "parental reaction"

because I have not seen it have too much effect at all on 
bhe children but there ssanis to be a parental aversion to

it
having small children being transported. And if the schools

ii are to be desegregated or to lose any racial identiflability 
this ought to be a burden carried equally by both black and 
white groups.

^  All right, sir. Now, will you go on unless you
have something else to add in connection with that?
A  No. I was going to continue on then to say that
among the—

w (Interposing) Before you continue on I will ask
you whether or not I consulted you in the preparation of my
objections?
A Yes, we consulted on this.

!j br. btoloe - Direct 1891



u j c. o-t.cu.ee - Direct 1892
c All right -
A The junior high schools- well, there seen£ to be
a pattern but the junior high school a that were heavily white 
during the year just past will have a majority of white 
students next year and those junior high schools which have 
had a heavy black percentage last year would still maintain 
a black majority during the coming year.

If there were exceptions, you know, you would
<
-

assume that given a school system that is about 50-50, like
IChattanooga, you would find same an each side but when you 

find a rather consistent pattern it discomfort* me.
with the senior high schools I was disturbed to

Isee that— I believe the figures shown for Howard Senior High 
School were 70 per cent hlack, 30 per cent white, including 
the Klrkman satellite. Then I heard additional testimony 
here today saying that probably that satellite wouldn't be 
there too long, which would make it then 75 per cent hlack

Iand 25 per cent white.
Riverside High School would be in about the same 

situation. 1 share Dr. Henry's concern. I believe I heard
I

him say from the stand that these two high schools would 
present great difficulties. I find myself tending to agree 
with him. I have a hard time seeing that desegregation to 
this extent in those two high schools is going to be workable.

If it is permissible 1  would like to refer to



II
i)X. wiolee — Direct 1393
dii «jcperience we had in Norfolk, Virginia, yesterday in
w n i c u  last year dasegregated Booker T. Washington High School
at the 35 per cent white level, assigned 750 children, of 
wnocs 350 sheared up. This next year they have decided they 
have gone with a white majority, they are going to have 5 9  

per cent, they believe this will work. Now. I think this 
is essentially the same thing here. I would be surprised if 
all 25 per cent of those white children show up at either of 
those two high schools.

The way it would work, the only way I could see 
it would work would be to have each of the four general 
purpose high schools in this city have approximately 
racial makeup. This plan does not do it. I think it is a 
self-defeating plan on the high school level.
Q If the black to white ratios were equal 1 zed in
the four general purpose schools, Howard, City, Riverside 
and Brainerd. do you feel that that would work?
A I couldn't hear, your voice dropped right there.
o If the black and white ratios were equalized in
those four high schools do you that would work?
A Yes, sir.

w ,»nd did your plan have it substantially equalized?
a Yes, much more so than the School Board plan. I

:

i

have to see if I can find my copy here quickly.
That would be probably exhibit 130. Could we



Dr. otolee - Direct 1Q9*

have the exhibits? That would probably be Ibchib.it—
(Interposing) I would think it would be txhihit

130.I| while we are waiting for that.
A here I have it.
T Oh, you have it?
A y e s .

u All ri^it.
A  Yes, the plan that I subnitted had just about

;j 50-50 in each of the four.
I y You feel that that is essential for successful

integration?
1 A I think it is the only real possibility of

success and I believe it will work.
0 As a matter of fact. Dr. Stolee, you have heard
Dr. Henry say that they substantially followed your plan and 
your zoning plan throughout. What were the variances that 
they made from your plan?
A Well, sir, I was examining this the other day
and with your permission I think it night be much easier to 
say what the similarities are.
0 All right, sir. If you will. They will also
point out the negative aspects of it?
A Yes. The high school plan is different in the
zones. Now, the concept is the same. I recommended that the



.1

^ O i

four high scncola have discrete zoiwo and there are differ- 
encea in Ui° ^onas. Now, understanding, sir. that I have not 

my plan since it was entered into evidence. 1 mean the
'

for ray plan since they were rendered into evidence here, j 
1 wiil speak with what accuracy I can, for example.

MR. WILLIAMS: If it please the Court, I wonder
if we could have those maps brought in, that might he helpful.li

THE COURT: Yes. Identify the exhibit you wish,
j; uo you have it by number?

MR. WILLIAMS: Yes, sir, I believe I do, if I
could get the tablet out here.

THE WITNESS: I believe the maps would be starting
with 125, 127 and 129, or else 127, 129 139.

'’"I-),-.. . i believe that is correct, your
Honor.

THE COURT: All right. Ask the Clerk to locate
them. j
A While we are waiting for the maps may I speak
about tile elementary schools?
a will you continue, yes. I
A 1 llad st« and Trotter paired. The School
Board plan has St. Lima with Donaldson and Trotter closed.

I had Clifton Hills and Bell paired and so did 
the school Board plan. That was the first thing that I saw 
in cotnmon. I suspect that might be the only one.

U r .  Ltolee - Direct i8y5



Dr. otalee - Direct 169*
u We now have the exhibit.
A Well, to finish on the elementary schools as
closely as I can tell the only place where the elementary 
plans have commonalties are in the pairing of Clifton Hills 
ana bell elementary schools. Excuse me, also *->>*> pairing of 
hast Chattanooga and Avondale.
w 'ill right. This would be the high school zone,
would it not?
a Yes, the lowered number. Which exhibit number
am 1  going to be testifying about?
y Our Exhibit 129 and the city's Board Exhibit 145,
the high schools, oceqparing those exhibits, one of which is 
an overlay, what is your conclusion, what are your conclusions
there?
a  On Exhibit 145 the area that is colored in pink,
is ti»e Howard High School area and it illustrates that as it 
is covered by Exhibit 129, which was the plan I prepared, 
there is at the northern corner of the pink area, 145, a 
portion of rather heavily populated black residents that I 
had in City High School or Chattanooga High School and that 
the School Board plan has in Howard.

Now, I know the difficulty chat the School Board 
had because that group of people is quite close to Howard, 
but if that group of people is put into Howard then 1 am 
quite certain that this is what contributes to the black



uz. -toJ.ee - direct 1897

majority that 1 aw just air aid would doom this plan to 
failure.
u Are you talking about these people here?
A The people—
w (Interposing) These people here and here?
A It's the people to the west of the ones I was

idiscussing right now, those two you were pointing at.
U This one?
A .hat group?
w All right.
a New, the group up in the upper northeast corner
of the Howard area, X can't recall exactly what the racial 
makeup was there, but I believe it is somewhat even, but I 
would have to go back into ray records to look. i

The other big difference is that according to 
nry plan I had a, you might say, an extension of the Brainerd 
area, which is in orange on Exhibit 145. 
w Here (indicating)?
A Yes. On ray Plaintiffs* Exhibit 129, 1 have that
area extending across the Ridge into an area that is populatedj 
by black people in order to get more black students attending
Brainerd High School.
y So that was cut off by that, that represents
this little yellow block right here?

■

A They are assigned to Riverside, that is correct.

I



Dr- Stolee - Direct, 1698
U So that these people, the yellow here is
Riverside, so that these blacks that you had in Brainerd 
have been moved by the School Board into Riverside?
A That ia correct.

i
U So the School Board, for all practical purposes,
adopted your high school zoning plan except that they took !
the black children out of the white schools?

i
a They took a number of black children out of

!
Chattanooga High School and re-assigned theta to Howard and 
the number of black children out of Brainerd High School and 
assigned them to Riverside.
h All right, bet's get theta lined up. All ri^ht.
Dr. Stolee, do . ou have any conments about the junior high
plan as cc*npared to yours?
A Yes.

THE COURT: Identify the exhibit number, please.
MR. WILLIAMS: That's Plaintiffs' Exhibit 124

and Defendants' Exhibit 144, being the respective junior 
high zoning.
a It is somewhat difficult to see with the multi­
colored thing. May I step down?
0 Yes, please.
A On the junior high school zones on mine originally|

1 had different colors outlined, that was ray overlay, whi<-h 
was exhibit 127, I had in several cases ruin-contiguous



!

205

oounoari.es as East Lake, for exan$d.e, Alton Park, 1 had a 
different zone, it i s  primarily different zo n es and I think, 
the plan that X p re s e n te d  made more u se  o f  noo-*contin gu o u s  

boundaries w h erev er necessary.
I  b e lie v e  th e  p la n s  a r e  s im ila r  in  th a t  b o th  o f  

theca c a l l  f o r  th e  d isc o n tin u a n c e  o f  a  ju n io r  h ig h  sch o o l a t  

L o o k o u t. I  have t o  lo o k  a t  my r e c o rd s  th e re  b u t I  b e lie v e  

th a t  my p la n  c a l l e d  f o r  a d isc o n tin u a n c e  o f  a ju n io r  hi gh 

sch o o l a t  L o n g . The S ch o ol B oard  p la n  d o es n o t .

The p la n  1 p re s e n te d  c a l l e d  f o r  th e  ju n io r  hi gh  

t o  be m ain ta in ed  a t  Howard and in  th e  Sch oo l B oard  

p la n  th e  Howard J u n io r  H igh S ch o o l i s  c lo s e d . O th er th a n  

th a t  i t  i s  a  s e r i e s  o f boundary d i f f e r e n c e s . 

q  A ll r i g h t .  You M entioned and p r e d ic a te d  one o r

more o f  o u r o b je c tio n s  on s e v e r a l  ju n io r  h ig h  s c h o o ls  n o t 

b ein g  e f f e c t i v e l y  d e s e g re g a te d . H ardy. Dalewood and Long, 

were th e y  e f f e c t i v e l y  d e s e g re g a te d  in  y o u r p la n ?

A Y e s . I  am lo o k in g  f o r  t h a t ,

y T h at would p ro b a b ly  be E x h ib it  1 2 8 ?

A E x h ib it 1 2 8 , y e s . On th e  p la n  t h a t  I  su b m itte d ,

w e ll, I  w i l l  go th ro u g h  th e s e  s c h o o ls . F i r s t  o f  a l l .  H ardy 

ju n io r  H igh S ch o o l I  p rop osed  t h i t  th e r e  w ould be 57 p e r  c e n t

Or. stolee - Direct 18*9

i

black, 43  p e r  c e n t w h ite  e n ro llm e n t. The S ch o o l B oard  h a s  

73 p e r c e n t b la c k , 27 p e r  c e n t w h ite .

Dalewood Ju n io r  H igh S ch o o l, I p ro p o sed  th a t  i t

i



in. - toieii - Direct 1900

be 4 4  p e r c e n t b la ck  and 56 p e r  c e n t w h ite - The S ch o o l 

B oard  p la n  p ro p o se s  29 p e r  c e n t  b la c k , 71  p e r  c e n t  w h ite .

And Long 1 p ro p o sed  n o t be u sed  as a ju n io r  h ig h  

sch o o l and th e  S ch o o l B oard  p la n  h a s  t h a t  b ein g  15  p e r  c e n t  

b la ck  and 85 p e r  c e n t  w h ite .

U A ll r i g h t .  What o o n a e n t. i f  an y . d id  you have an j
o u r P l a i n t i f f  s ' O b je c tio n s  H and I .  w hich p o in t o u t th a t  u n der 

th e  S ch o o l B oard  p la n  fo u r  o f  th e  ju n io r  h ig h  s c h o o ls  w hich  

had b la ck  m a jo r i t i e s  w ould s t i l l  h ave b la c k  m a j o r i t i e s . s i x  

w hich had w h ite  m a jo r i t ie s  w ould s t i l l  h ave w h ite  m a jo r i t ie s ?

A W e ll, th e  E a s t F i f t h  S t r e e t  S ch o o l p re v io u s ly  was

a l l  b la ck  o r  m o stly  b la c k , 99 p e r  c e n t  l a s t  y e a r , and un der 

th e  sch o o l B oard  p la n  th e y  w ould s t i l l  be 6 4  p e r  c e n t bla c k .

The H ardy J u n io r  H igh S ch o o l l a s t  y e a r  was 69  

p e r  c e n t b la ck  and th e  S ch o o l B oard  p la n  h a s  i t  73  p e r  c e n t  

b la c k .

A lto n  P ark  J u n io r  H igh S ch o o l l a s t  y e a r  w as 99
|

p e r c e n t b la c k . The S ch o o l B oard  h a s  i t  b ein g  62  p e r  c a n t

b la c k .

L a s t  y e a r  O rch ard  Knob J u n io r  H igh S ch o o l w as 

lo o  p e r  c e n t b la c k . The S ch ool B oard  p la n  h a s  i t  b ein g  62  

p e r c e n t b la c k .

T h ere was one o th e r  a l l  b la c k  ju n io r  h ig h  sch o o l 

x a s t  y e a r . Howard, and th e  S ch o ol B oard  p ro p o sed  t o  c lo s e  th a t

one.



Dr. ^tolee - Direct 1901

v All r i g h t . Now. w ith  re g a rd  to  th e  w h ite  s c h o o ls ,

can  you do a s im ila r  rundown on th o s e , p le a s e ?

A Y e s . L a s t  y e a r  E a s t  S id e  J u n io r  H igh S ch o o l had

IS  p e r c e n t  b la c k . The S ch o o l B oard  p ro p o sed  57 p e r  c e n t  

b la c k , and th a t  w ould be in  P a rag rap h  l  w here we sa y  o f  th e  

s i x  f iv e  w i l l  s t i l l  have a w h ite  m a jo r ity .

E a s t  S id e  i s  th a t  s i x t h  o n e . L a s t  y e a r  L a s t  Lake 

had one p e r  c e n t b la c k , t h i s  y e a r  i t  w ould be p ro p o sed  f o r  

49 p e r  c e n t .

B ra in e rd  had 11  p e r  c e n t  l a s t  y e a r , th e  S ch o o l 

B oard p ro p o se s  37 p e r  c e n t  b la c k . T h is  i s  a l l  b la c k  p e r ­

c e n ta g e s  I  am u s in g .

N orth  C h attan o o g a  had 8  p e r  c e n t . The S ch o o l 

B oard  p ro p o se s  34 p e r  c e n t .

Dalewood l a s t  y e a r  had 1 8  p e r  c e n t . The S ch o o l 

B oard  p ro p o se s  29 p e r  c e n t .

Long h a s  p ro p o sed  t o  be e x a c t ly  th e  same a s  l a s t  

y e a r . 15  p e r c e n t b la c k , and Lookout i s  p ro p o sed  to  be c lo s e d .

Now, th e n , o f  c o u r s e , you have a lre a d y  m en tion ed  

th a t  th e  same s i tu a t io n  e x i s t s  p r e c is e ly  w ith  re g a rd  t o  th e  

h ig h  s c h o o ls , and d oes th e  same s i t u a t i o n  o r  n o t e x i s t  w ith  

re g a rd  t o  th e  e le m e n ta ry  s c ho o ls  in  e f f e c t ?  1 w o n 't ask  you 

to  go o v e r e a ch  one o f  them  u n le s s  i t  i s  f e a s i b l e .

A  F i r s t ,  on a  v e ry  q u ick  e x a m in a tio n , i t  ap p e a rs

th a t  th e r e  i s  a ten d en cy  th a t  way b u t n o t a s  s h a rp ly  a s  shown



1902208

in  tn e  ju n io r  and s e n io r  h ig h  s c h o o ls , e x c e p t th a t  to u r  o f  

th e  b la ck  s c h o o ls  a re  p ro p o sed  to  be c lo s e d  and th a t  a l t e r s  

th e  p ic tu r e  q u ite  a b i t .

F o r exam p le, o f th e  o n e, tw o, th r e e , f o u r , f i v e ,  

s i x ,  se v e n , e ig h t , n in e , te n , e le v e n , tw e lv e , t h i r te e n , 

fo u r te e n , f i f t e e n , s ix te e n  s c h o o ls  th a t  a re  p ro p o sed  t o  be
:

more th an  50 p e r c e n t h la ck  n e x t y e a r , on e, tw o, th r e e , f o u r , 

f i v e , s i x ,  se v e n , e ig h t , e x a c t ly  h a lf  h ave had a m a jo r ity  

b la ck  l a s t  y e a r , so  you s t i l l  have th e  p ic tu r e  o f  th e  fo u r  

b ein g c lo s e d  in  th e re  b u t th e  e le m e n ta ry  sch o o l in  t h i s  

r e s p e c t  i s  n o t a s  s tr ik in g  a s  th e  ju n io r  h ig h , 

g In  th e  n e x t Su b p aragrap h  £  o f  o u r f i r s t  o b je c tio n

i t  sa y s  th a t  7 2 .8  p e r  c e n t  o f th e  e le m e n ta ry  s c h o o ls  w hich  

had a b la ck  m a jo r ity  in  1 9 7 0 -7 1  w i l l  have a  h la ck  m a jo r ity |
in  1 7 1 -  • 7 2 . Did you o r  n o t cosqpute th a t?

A No, I  am n o t ch an g in g  my mind on th a t  one because
i f  you g o , th e  on es th a t  h ave th e  w h ite  m a jo r ity , th e r e  a r e  

on ly  th r e e , in  o th e r  w ord s, o f  th e  15  a l l  b la c k  s c h o o ls  

l a s t  y e a r , o r  th e  m a jo r ity  h la c k  s c h o o ls  l a s t  y e a r , fo u r  a re  

t o  be c lo s e d , le a v in g  e le v e n , o f  th o s e  e ig h t  w ould h ave a
I

b la ck  m a jo r ity , th re e  w ould have a  w h ite  m a jo r ity .

Dr. stalee - Direct

w So y o u r 78 p e r  c e n t f ig u r e  i a  c o r r e c t ?

A Y e s .
1

‘w / i l l  r i g h t . hew, th en  tw o th in g s . D o cto r, w hat
i

i s  th e  e f f e c t  o f t h i s  p a t te r n  o f  co n tin u e d  m a jo r ity  hJLacJt



Dr. Stolee - Direct 1903

in terms of tne effectiveness of desegregation and removing 
racial iderrti liability or not?
A Kell, I don't believe you have removed it on
this sort of thing if it follows a pattern, if the schools 
that are closed are black, the schools that were predominantly 
black would remain with the majority of black teachers or 
students, I mean, that the predominance of the children, 
little children being transferred are black, all those things 
together become very obvious and it is really desegregation 
to the least inconvenience to the white community, the 
greatest inconvenience to the black community and, well, 1 
would rather suspect that some of our difficulties arise 
because the black people are perceptive and can see what 
occurs and react to this sort of thing. ;
d All right, w ith  regard to schools that are not
effectively desegregated that have a small percentage of i
whites assigned out of proportion to the percentage of people 
and population, what effect does this have? You have already 
mentioned the effect of this in regard to Howard and Riverside< 
Does this or not have any general effect with regard to
desegregation?

A Yes, it is a tiling we see very clearly when a
corntmnity does not have the dedication or the cornu, tmeat to 
go all the way, get it all done with, you know, just 
desegregate every school, take care of it, get it taken care

I



Dr. -> toJ.ee - Direct 1904

or so that the schools would have approximately equal appeal 
to ail of the people, the ones that don't have that equality, 
an<l here 1 refer specifically to Riverside high School,
Howard High School, and that one particularly, the one 
elementary school. Carpenter, although several or the others 
would be getting closer, those schools I expect are the cnee 
that are moat likely to have whites running away, then they 
Liecame all black, again, meanwhile you have fewer whites, and 
so we may have to repeat our appearances in this courtroom 
again in several years because now vs still have all black 
Riverside and Howard and all black Carpenter and this thing, 
you just nickel and dime yourself to death, is what I am 
saying.
g Well, where you keep the white schools, on the
hand, like Barger, Long, Ri Vermont and Sunny side, that are 
most predominantly white, then where do these people run to
when they leave?
A Lome of them will run within the city, some of
them move out of the city if they do run or the three things 
generally happen, people move from a uniracial or nearly a 
uniracial school within the district, move out of the 
district or place their children in non-public schools, but 
the point that I was trying to make. Hr. Williams, is that 
this is a thing I have grown up with, you are nickel and 
diming yourself to death, you know you might offer a little

N  %



Dr. btolee - Direct 1j05

*>it here and just a little bit there and a little bit seme 
place else and you wind up with a fluid situation that is 
ae.u.-defeating. The future problems arise because oi the 
improper solution to the present problem and the proper 
solution to the present problem in order to avoid the future 
problems is to get all of these c-chools desegregated to 
approximately the same basis and have every school in the 
city be equal.
q Do you have any comment upon the fact that of
the four of the five elementary schools that you t *y axe not 
effectively desegregated are located in relatively affluent 
areas?
a I drove the entire city and I noticed beautiful
hemes in the areas served by the Long School and the area 
served by the RiVermont School and very comfortable-looking 
names in the area served by Barger and Sunnyside and these 
to lae as I looked around, also Missionary Ridge, there are 
fewer homes but they are, I'd say they are very, very fine 
homes, these are the schools which were doing the least.

Mow, there again I can't testify as to motivation 
but I can talk as to effect and it appears to me that the 
people who are least affected are the, you say, the more 
upper middle class groups in the city and the places where 
there's schools quite thoroughly desegregated are in areas 
that judging by homes don't have that degree of affluence.



Dr. stoiee - Direct 1906
V All r i g h t .  Doctor, loaxirvj at the plan that in
its entirety front the standpoint at student desegregation, 
would you or not in your professional opinion say that this 
plan taxes all feasible steps to maximize integration, that is, 
the School Board's plan?
A Hot in xay opinion.
d would you state if that plan does or does not
foster continued segregation to a significant degree? 
a Weil, as I testified previously, I am convinced
that, number one, it is not really doing the job right now 
and it promises to do worse in the future, 
u All right, sir. How, do you have any comments
with regard to the faculty and staff desegregation portion 
of the plan in light of the objections the plaintiffs have 
filed?
A I just negotiated a contract, if I may go at it
from a little different direction, I recently negotiated a 
contract with the United States Office of Education under 
what they call their TEDS, called Teachers Environment for 
Desegregating Schools, it's a program congressionally funded 
because there has been a Federal Government realization that 
there are so many black teachers and administrators who have 
Been displaced from their jobs because of desegregation or 
during desegregation that it has become necessary for the 
Federal Government to establish four or five guidance centers.



Dr. Stolee - Direct 1907
job counseling centers throughout the Southeast, to establish 
in, I think it is four or five universities throughout the 
Southeast and we are one with the University of Colorado, 
that is not tho Southeast, but they are also involved, in 
order to give these people additional training so that they 
might get jobs.

It demonstrates in a very true way what has been 
happening all over and that is that as schools have been 
desegregated th-y tend to reduce the number or the proportion 
of black professional people working in the schools.

Now. I sat here today and I listened to the 
superintendent say that he doesn*t agree with that or he 
doesn't believe that this school system would do it or he 
would not do it and I accept him at his word.

I heard another School Board say that yesterday 
and my action or my response is, "Yes, I am absolutely con­
vinced Dr. Henry has spoken the truth as I see it, but Dr. 
Henry will not be here forever. This School Board, who pre­
sumably is speaking through Dr. Henry that they are going 
to maintain black positions in our schools, they will not be. 
these individual members will not be the School Board forever. 
There1 s new people and this is too important a thing to deal 
with and changes that may come because of changes in school 
administration or school boards, therefore, I think it is 
absolutely vital in Chattanooga, as wall as in the United

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M V H T i N O A l F  h j B B F . i



J

States, that there be a floor placed under the proportion of 
black professionals in the school system and the most logical 
floor is the percentage of black teachers of the total and 
black administrators of the total that exist today." 
q How about the percentage that Dr. Henry suggested,

percentage of black students to white students?
A X think that in a school system such as Chattanooga,

I
50-50.
<j Now, then do you feel that the plan ought to

I
contain a provision for recruiting of black teachers?

A Yea.
Q All right. Do you have any cements about the
necessity in a plan for provisions which would protect the 
black students from such things as misapplication of achieve­
ment tests and achievement test scores, et cetera?
A Yes. I believe in that fully and I agree When
Dr. Henry said that the traditional tests we have used have 
been based on one's knowledge of what middle class culture 
i s  and you cannot expect to score well on one of those exami­
nations when he has been rather systematically excluded over 
a period of years from that white middle class culture. 
u All right. And should similar provisions be made j
with regard to such matters as low teacher expectancy and 
white teachers for black students, et cetera, cultural
differences, et cetera?

n  .  *  1  a - , m  • ■ r  4.; *  P O R T  f  P S  T c N N L S S E E

H P . f F R t N  M A S T I N O A . f

i>r. C tolee -  D irect 1903

I

I



215 Or. Stolee — Direct 1909

Tape 9

A Yea. I believe the studying I have done. I have
looked quite thoroughly into the work* or people. such as 
Rosenthal and Trymr and so on and everything that we see 
shows us that the self-fulfilling prophecy ia not TTniHrfhlnrj 
that just got dreamed up like Professor Merton, like in 1952, 
but xs something that actually operates in the school system, 
if a teacher believes a child will not perform the g>hi does j 
uot perform, it's just as simple as that, and so teachers have 
got to let children, both hlack and white, know that 
teachers believes the child can do the job.

How you are going to do that, sir. I don't know,
I don't know. This human relations training is great stuff, 
it's great stuff, I don't think it is going to do it. We 
have been working on it for five years. I don't see 
point to doing any more but it's a step in the right direction.! 
^ A H  right. Bow, then you have heard testimony
about the expense of buses and the procuring of buses and the 
request of the School Board for delay in connection with that.

State what, if any, consents you may have in that
regard.

A well, dealy. I am opposed to delay. My home base
is in the Fifth Circuit area and I subscribe wholeheartedly 
to the one decision that said, when they were talking about 
deliberate speed. -We have had enough deliberation now it's 
time for speed."

** ‘+ € H C « ( l R b  C M A ' T A N O O G A  T £ N N E S S ( l

F Of N T M » 9 T l N O A i  1 H U B H l .



Dr. Stolee - Direct 1910
1 was recently working with the Jacksonville. 

Florida, or Duval County School System, and the Court has 
entered an order that the school system says will require 
the purchase of approximately 250 buses, they discovered—  

this was about a month ago— they discovered that they oould 
get immediate delivery on 100 and they have ordered that many. 
The buses are there to be found. I know nothing about the 
municipal transportation system here, I can't speak to that.

I
I do know some of the cost of school buses. 1 listened to 
a superintendent testify under oath in the State of Arkansas 
last week that a 66-passenger school bus properly equipped 
for Arkansas cost $6,750. 1 know in Tennessee the cost is
somewhat higher than that, but not much. The cost is not 
unreasonable, buses can be found if you really want to find 
them.
w All right. And you heard the other matters that
the superintendent testified to. matters like assignment of 
head tart students and that sort of thing. Do those things 
justify or would they require the delay in integrating the 
schools in the next term? 
a No. I aw an administrator.
Q You are an administrator?
A 1 am an administrator. I am in a university, and
if there weren't any problems they wouldn't need us. they 
would need administrators, and sometimes problems take a

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' U t H t N  I M A M T I N D * .  f - n J H H t .



Ur. dtales - Direct 1911

little more work than at other tines but this is why we are 
here and I know, for example, the Title 1 programs that Hr. 
Kichard Bareway. who is the Director of the Division of 
Compensatory Education in the United States Office of 
Education has instructed his staff that they are to pull out 
axl of the stops in order to see to it that schools that are 
being re-organised under a desegregation plan don't get their 
programs interrupted.
q  Uow about the moving of furniture and the printing
out of the legal descriptions of school zones, should that 
require more than five weeks. Doctor?
A I really don't think that it ought to. We tend
to be pessimists. I heard Dr. Henry testify that the heavy 
equipment was being moved out of Kiriam a  faster than he 
thought it would and 1 suspect it is going to be true of all 
of these things. He has got a big job, there's no question 
about it, but I think the whole thing will go faster than he 
thinks it will, just the way the heavy equipswnt out of 
Kirkman is going.

1 might say, sir, that I have worked with several 
school systems that did considerable student re— assignment 
in the middle of the year and the greatest amount of closure 
that 1 knew of was one week in the close of school for one 
week and completely re-organized, I think we have adequate 
time.

,  ,  a v* . • m  ( O  l i  H M i  P O B  I (

w F ( t  H F N C M  • f i H H 1

. A i N N L S b f  t



Dr. Stolee - Direct 1912
Cj Were you aware of one out in Madison County here
in Tennessee where Judge McClure ordered then to re-assign 
the students in the middle of the year and they did it in 
two weeks time?
A No, sir, I wasn't familiar with Tennessee. I was
thinking of several counties in Florida.
q They mentioned something about comparing the
community or something. They are still talking about com­
munity hostility. As an education expert do you have any 
comment on that?
a There is going to be some people in the comnanity
that are going to be hostile if they did nothing. There 
would be some people in the community that would be hostile.
I think, it is a matter of law.
g All right. Now, Dr. Stolen, finally looking at
the entire system and as you have looked at it in depth 
during the time that you were here, do you know of any reason 
why the School Board could not indeed implement your plan by 
the first of September, 1971?
A No, I believe it could be done. I think I testi­
fied earlier that there might have to be some block-by-block 
adjustments of boundary lines as they have done in the past 
but I think it could be done.

M R . W I L L I A M S :  Cross examine. I  h a v e  oneadditional
question.

w A H (  a  * •  - u  V  - *• C O U I »  R E P O R T E R S  m a t t a \ 0 >  G A  T E N N E S S E E .

Ft fc f E R E N C  E M A R ’ i N D A ;  f  H i , h 8 U i



2 1 *

i I!

Dr. Stolee - Dxrect - Cross 1913
1 take it the same thing is true of their own 

^lan, of course, which is less effective than your plan?

A Yes.
CROSS EXAMINATION

uy k k . w r m
u Dr. stolee. I believe that when you were here the
last time, it my memory is correct, you indicated that you 
had not read the decision of Swan.
A X don't recall being questioned about that, sir.

q Have you read it?
A I have read it but not studied it.
q Do you have any professionai opinion to offer
this Court as to whether or not the Chattanooga plan is con­

stitutional or unconstitutional?
A I am not learned in the law, sir, and that is not

jay area of expertise.
g You are not offering your plan in this area at

all?
A I aw not offering my interpretation of the law.
w All right. Now. you discussed percentages in
schools. Tell me, is there a difference in a school, whether 
or not it is 35 per cent black or 40 per cent black?
A No. You see. this is a place where acme place
has just go to pick out some standard and say. “Here we go." 
what is reasonable? You know, you and I could sit here and

n  • • *  e  . V  -  < ) u * r  R £ P O R T f H « • *  i » % O C » *  T t N N E S f » t f

k » f  r M 4 H T  . N O A  t f i B t  •



I

220

argue about 35 per cent and 36 per cent. Some place there 
is reasonableness and different authorities have placed it 
in different places.

The State of California put it at 15 per cent 
either way from what the balance is, which would mean 35 
per cent to 85 per cent here in Chattanooga. The 
Cocnoonwealth of Pennsylvania does the same thing. The State 
of Connecticut does the same thing. The Georgia plan ©aye 
it's from one—half to one and a half, and so on, but the 
point is everybody has found it necessary to pick out sense 
point and if you were to ask me is 69 per cent better than 
70 per cent. I couldn't answer it. You just got to pick, out 
something, some place, and say, "This is a percentage, 
reasonable and logical•"
g ,nd do I understand that your percentage which
you pick out is 30-70, is this correct?
A I picked out 20 per cent on either side of the

50 so that would be 30 to 70.

Ur. ctolee - Cross 1914

u
A
Q

Twenty per cent on either side of what?
Of 5 0 -5 0 .

In other words, you start with the approximate

' 1 ' I

ratio that is existent in the school system in winch you are 
testifying with regard to?
A That's what I did, yes.
g why did you do that?

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t  M A N T l N O A l  f



221

A well, you have to have a starting point acme
place, you have got to start.

Why do you have to have a starting point?
A well.

Starting point to do what?

A In order to set up a system whereby the schools
are not racially identifiable, you have to start somewhere.
The most absolutely unidentifiably, racially unidentifiable 
school would be the one that is exactly the sane as the 
citywide is, you have to start there.
<j How did you determine what was racially identifi­
able, how did you determine what is racially identifiable? 
a  Well, that is what I was talking about in my
discussion a minute ago. that somewhere you have to draw a 
line and say, "To this point I will go and beyond that I 

will not."
I was in the Federal Court in Norfolk, Virginia, 

yesterday and I heard their School Board present a plan in 
whach all but two of their schools fell within 6 per cent,
6 percentage points of 45, now, their School Board used the 
15 per cent, this is the Board plan, this percentage of black 
students is 45, and their School Board used 15 per cent on 

either side.
Now. I don't know why I arrived at 20, I think 

that it might be somewhat easier to do here than 15 or 10,
f4 ,  *, . ,  a  m . , i , H  K f c H O W l t W V  < I l A N O O f i *  T f N N F S ^ t F

k. t » t >4 r N M A k T I N U *  ' u l R h t i  l

Stole© - Cross 1915



I

222

there's ample precedent for 15, 20, I think, represents the 
extremes of reasonableness to **•
q  what other cases have you testified in recently

I
other than in Norfolk, where did you testify before that?

|
A Roanoke,
g And before that?
A Little Rock on the West Memphis case.
q  Then the one before that?
A H ere .

g Have you ever testified in a school system where
the ratio was approximately 50-50?
A Norfolk is the closest. 45-55.
g As of when?
A Excuse me?
g as of what date in time, what point in time?
A They were 45-55 on March 9. 1971, that was the
base date for the data that they were presenting to the

Court.
g Do you know of a school system that is approxi­
mately 50-50 that is desegregated and has maintained that
balance?
A I can't speak to that, sir, because the decisions
that are coming down since Swan appear to be somewhat 
different in their effect, I don't know about the law but 
I can see their effect.

Dr. Stolee - Cross 1916

-i M l ‘ ( . O U H  R E P O R T E R S  • •- 

W E * - f c R t N C F  M A R T I N O * l  6 H . . H B

k N O C G *  T t N N E S S f t



Dr. istaiee - Cross 1917

Q

A

0
A

How many school systems—
(Interposing) May I finish, sir?
Yea, sir.
And there' s not been adequate time to see the

real effects of the decisions that have been handed down 
to this point.
{J Then the answer to the question is no, is this

correct?
That is correct.

(j How many school systems are you familiar with

in this country?
A Well, that is almost an impossible question, sir.

<u Well, try.
A I have worked intimately with 250 to 300.
q  And in that 250 to 300 you don* t know of a single
one that is approximately 50-50 that is desegregated and 
maintained the 50—50 ratio, is this correct?
A The answer to your question, the first part is
yes, I do not know of a school system that is 50-50 that has 
desegregated. As to the second part of your question, and 
maintained it, is what 1 was saying earlier, we can't tell

at this point.
u As of this point have any of them that you know

of done that?
MR. WILLIAMS* If your Honor please, I object

w . . a  w •. a « M ! * I ! : i  M Wt  P O R '  F R t >  r  ►« A T T A N O O G A  T t N N l b ^ M

W f c f t e C N ' .  m a r T I N D a l  f  M ' l B h F ;



Dr. Stolee - Croea 1916

uecdUiwj be an awe red tiu» question.
THE COURT: I believe be answered the question.
MR. WITT: He didn't.
THE COURT: I understood him to say that he did

not Know, that there had not been tine in which to make that 
evaluation, is that correct?

THE WITNESS: That's correct.
MR. WILLIAMS: Moreover, he sard, if your Honor

please, as I understood, that he doesn't know of a school 
system, other than this one, that is exactly 50-50, or 
approximately.

MR. WITT: No, he didn't, I bog your pardon.
MR. WILLIAMS: That has desegregated.
MR. WITT: No, I beg your pardon. You can read

the record back. He did not testify to that.
THE COURT: You may ask him if there is any

question about that.
w Then your testimony to this Court is based upon
theory and not experience?
A No, I would not agree with that, air.
q What experience?
A Well, the experience of school systems that are
not necessarily 50-50. If you assume that being 50-50 makes 
the school system absolutely unique.
<j It just happens?

Hi  M A H ' ,  •* a • : • ; * v! C O I J R I  H f c H O S ' i R h  ( " A I T A N O C ' G A  T t N N I S i f t

« F  » t- HF N F U A H T . N O A . f  H l j H B P l



Dr. Stolee - Croa* 1*19

A That is something else. In working with Atlanta,
that is 70-30, the only Oasis that we have to go is the 
experience of other school aystetas and other school systems 
have been desegregating their systems, they may not all be 
50-50 but I am submitting to you that the experiences would 
be approximately the same.
U If I heard you correctly, and I may not have, but
I took, a note at the time, you were talking about the high 
school desegregation, you referred to the necessity of a 
50-50 ratio, and you went on to say without qualification 
that it was essential, the only real possibility for success. 
Do you recall testifying to that?
A Words to that effect,
u Do you recall it?
A Yes.
Q How do you propose to accomplish that in a
school system, a high school system, that Is already 52 per 
cent black and 48 per cent white with no estimate for white 
flight?
A Then in that case I will say that each high
school ought to be 52-48. I was using the term 50-50 as an 
approximation of the racial enrollment in the Chattanooga 
schools.
Q Do you know of any high school where that kind
of situation has occurred, where that kind of solution has

h  . u A f d '  .» c  > • r  - M M C O U R 1  R t A ' O R T f c R f e  f H A  T A N O O G A  T t N N f  S S f  E

M A H T i N D A L F  H U H B f



Dr. stolen* - C r o M 1920
been applied that has worked?
A 1 know of high schools that are 90-50 that are
being maintained at 50-50, 1 know of at least four high 
schools in Atlanta that are there and have been there for
same time.
vi
A
Q
A
morning of

Cain you name those high schools?
I'd have to go look up my records.
As of when are you testifying?
I an testifying as of the meeting on Wednesday 

this week.
0 Referring to statistics as of when?
A The statistics were gathered by the Atlanta
schools on two occasions, one of them was early In March,
1 believe the 2nd of March, and the other was their compliance 
report submitted to the office of Civil Rights due October 10, 
1970.
<a Mow. when did this situation, when was it first
obtained at these schools?
A I can't say that.
U Do you have any idea hew long it has been main­
tained?
A I can say it has been maintained over a year.
Anything I would say beyond that would be hearsay.
Q Otherwise you don't know. You testified with
reference to the requirements of the plan to avoid black

I H i R i  W f c H O H T f c h S i > A i  ’ A N O O G A  T t N N E S S f E

M A R T . N O A « jH H E .»



227 Dr. Stole* - Cross 1921
teachers or black faculty personnel fro® being terminated in

their employment.
Did you hear the testimony or were you advised 

of the testimony with reference to this particular school 
system with reference to its history on this point?
A ! heard the testimony of the superintendent today.

But did you hear the testimony before in whichy
this was gone into in detail?

1 A No, I do not recall it, sir.
1
li y Are you aware of this at ail?

!! a NO.
li y!
! A

Have you been advised of this?

No.i1•i■i y When you speak of the desirable

A

Q

reference to faculty are you speaking of educational goals, 

are you speaking of a legal retirement?
I c^o't understand the question, sir.
In your direct examination you were asked about 

what you considered to be the proper ratio of black teachers 
to which teachers in the school system and you made some 
reference to there being a floor that should be applied all 
across the country, do you recall that part of your testimony? 
A yes. I don't recall sayinj that there should be
a floor applied all across the country but nationwide it is 
a problem and there should be a floor and the floor I am

w f  t ' O H  '  B S  (  " *

kM 1 i N O A  . F  H l - h H f  .



Dr. Stolen - CroM - Redirect. 1922
ope axing of here today specifically is Chattanooga.
Q In this situation you are speaking entirely of
educational objectives and with no relevance to the legal 
requirement, is this correct?
A I am speaking In educational terns, sir.
1 Solely in educational terms?
a I suppose.
Q Are you an expert in school purchasing?
A 1 have not been involved in that for approximately
ten years.
U My question was: Are you an expert in school
purchasing?
A 1 would say no.

MR. WITT: Thank you.
REDIRECT EXAMINATION

BX jan.i- wiiAXAMfi*
<j As a matter of your experience in school
desegregation, including experience in Title 4 program*! 
and other U. S. Office of Education and other governmental 
programs, are you familiar with and do you know the situation 
and do you know whereof you speak when you say that school 
buses may be obtained and can be obtained and can be obtained 
rapidly when needed?
A  I  was speaking of my experience in the State of
Florida in working with the superintendents who there are

R  - A W  a  A • R t  M I * i  t . O u H ’ W t P O R T l  9 S  C H A T T A N O O G A  T E N N E S S E E  

R E F t N I N  r M A R T t l M O A L  t  H U B B t l . i



Dr. . coxae Redirect 1923

confronted with problems of the m m  type a* the superin- 
tendent here and frost my dealings with the superintendent 
it is ray belief that the school buses are available if you

i i
are willing to, in sons cases, to purchase used materials.
In other cases to buy a bus that sight not have all the 
extras you would like and so on.

MR. WILLIAMS: That is all.
THE COURT: All right.

(witness excused.)
THB COURT: Anything further?
MR. WILLIAMS: Nothing further, if your Honor

please.
MR. WITT: 1 have nothing further.
THE COURT; Very well. Do you gentleawn wish to 

make any argument at this tins?
MR. WITT: I do not believe we care to make an

argument.
THE COURT: All right. Mr. willlasm?
MR. WILLIAMS: Yea. I'd like to say a few brief

words and not have the lawyers brief it.

If your Honor please, I would sis|>ly like to 
press upon the Court the feeling of the plaintiffs that 
after eleven years, if your Honor please, the School Board 
and after that very brilliant and aspiring opinion of your 
Honor's, which you gave us in a statement frost the bench,

K r i U M .  *  - is V  O U H  H t P O R T E H S  < A T T a  n  O O C .  A T E N N E S S E E

« f  ■ t  R F N  f  M A R C N O A l E H U H B k L .



230

I want to may to the Court this i£ not by way of currying 
favor but I had thought at one time that Judge Miller was 
the only District Judge in Tennessee which could give a 
statement from the bench that read like an opinion later 
and 1 found in re-reading your Honor's statement that your 
Honor joins that distinguished company, so that is by way 
of compliment and not by way of currying favor. i

I

I would think that having had the benefit of that
iexcellent opinion and that the School Board would have came 

forward with a plan which after all these years did comply
.{ I

with the law, with the requirement that they move to remove 
racial identiflability in each and all of the schools and to 
achieve, as Mr. Justice Burger has said, *'2he greatest degree

n Ii of desegregation possible, recognizing the actualities of
ii i the situation.*i

What we have here is a plan which does neither
ii of those things, a plan which conceded 1 y, if not acta&ittedly 

this time on the part of the defendants leaves several schools
still racially identifiable, leaves those schools in such

i!
condition, as Dr. Stole® mentioned, it would be an invitation 
to violation and more than that a plan which does not even 
purport to be the most effective plan because it is clear,j|

1! although there is an attempt here to keep it from the Court 
apparently, that there was prepared and presented to the 
School Boara a plan which would have more effectively

ii
j j  „  ^  ^ 4 „  .. O ,  t,  n f P f , H t > R s  ' £ N N £ S S E F

|| H ( >  H i t  N ■ M ^ t i T i N O A n  •'  i f l b F i .

1924



1925
integrated the acboal*, would have achieved a greater degree 
of integration, but this plan was rejected and was withheld 
from the Court in a manner which does not, in my opinion, 
ccemend itself to the Court as being that kind of conduct in 
which public officials ought to engage.

The Board of Kdncation is not a secret society, 
if your Honor please, perhaps maybe that is the trouble, may bo 
they are operating in that fashion. It is a public agency 
which has the responsibility of operating the public schools 
in compliance with the Constitution and it is here before 
this Court having defaulted in its compliance with the law, 
having failed in its affirmative duty, and it behooves it as 
a matter of good faith to show the Court the alternatives 
which were considered and convince the Court that the alfcerna- 
tive which they presented to the Court here is the most 
effective and the most feasible method of achieving integra­
tion and it is designed to achieve the greatest possible 
desegregation.

Since they have failed in that, if your Honor 
please, the plan which is before your Honor, which will 
effectively desegregate the system, is the plan which has 

j been presented by the plaintiffs* expert and what they did 
was to just pervert and detract from it and emasculate it 
to aoiae extent. That plan is the only effective plan which 
is before the Court.

f I ' O H  I t • A . f A N f X  V..A II N N t S S » F



232

Time is a wasting and I suggest that. if your 
Honor please, that the Court ought to today order the School 
Board to place in sffoct i— sdl itely and proceed to iaplwsnt

|not later than 1 September, 1971, the school desegregation 
plan which was submitted by the plaintiffs in this case. It 
is the moat effective one here, it is the only effective one, 
the really effective one which has been presented to the
Court. jIThe defendants, instead of even ashing to i

i

implement their own plan, the defendants cone in and ask for
• i

delay and how are they to do it. They attempt to justify 
that delay, they say. if your Honor please, we can't get the

|i buses. They didn't find that they couldn't get the busesi? I
| until after they got the word they thought from the Sixth
,i
j Circuit, "We are going to allow all kinds of delay if the

jl

District Judges will give it to you." They didn't, they
I

filed all of this after that Sixth Circuit decision and it 
reminds me of the old principle, "You give then an inch and 
they will take a mile.” Just give people one Inkling that

j
maybe you are going to not require then to ocmfxly with the

•I law and you want to go all the way hack and there again that
j

is a measure, that is a measure of the kind of bad faith 
which we have had in this matter and. if your Honor please,
I am tired, after all of these years of going through the 
whole ritual of saying the Board of Education is not in bed

|!I
*  . ,  . - vi H M K i R M O b  i *  . 0 ( 0 *  I N N t S S t E

«fr* y >« . M ' i H B F i

1926



1927
faith, they are in good faith, they just Made a ad at aka. 
They have been making ad a takas too long and w  are tired of 
mistakes. It is time we recognized that when people 
deliberately seize upon loopholes, if someone seizes upon a 
loophole in the criminal law in like fashion we wouldn't 
hesitate to call them a criminal if he gave an excuse that
he just didn't know the law, 
him criminal.

wouldn't hesitate to call
ii

I think we ought not to hesitate to recognize 
it when the Board of Education acts in bad faith* They just 
don't want to integrate the school system. They are giving 
all kinds of excuses. They know that they can find buses 
if they want thaw. They admit that the man told thaw they 
could get as many used buses as they want. They finally 
admit they can get brand new ones by November the 1st and
they don't give any reason why they didn't cone in and say, 
"Well, if your Honor please, we need until November the 1st
to get the buses and we have got to do some makeshift in the 
interim."

If it were a question of maintaining segregation 
does your Honor have any doubt that the buses would be parked 
out there in front of the courthouse tomorrow, a whole fleet 
of them, if it were a question of maintaining segregation?
So there is no problem with that regard and they finally 
admit, they finally admit the real cause that we are asking

-tk HOR ► Rb r t  N N E S S f c  E

t R  • N M A U ~  N O A i t « i » A R T . i



234 1926
f o r  d e la y  i e  co u e m u ty  h o s t i l i t y  and I f  I t  l e  an in d ic a tio n  

o f bad f a i t h  f o r ,  a f t e r  a l l ,  th e  Supreme C o u rt a d v ise d  th e n  

back in 1955 th a t  th e  c o n s t i tu t i o n a l  p r in c i p le *  co u ld  n o t be 

allo w ed  t o  y ie ld  b e ca u se  o f  c o w u n .ity h o s t i l i t y ,  and y e t  t i n s  

and tine a g a in  th e y  co n e  I n to  o o u r t . In  a  D i s t r i c t  Cou rt  o f  

th e  U n ited  S t a te s  upon whom e v o lv e s  p a r t i c u l a r l y  th e  d u ty  o f  

e n fo rc in g  and u p h old in g th e  C o n s titu tio n  o f  th e  S t a t e s , w hich j

i s  in te r p r e te d  by th e  Supreme C o u rt, and s a y , "We c a n 't  do i t  j
jj

b ecau se  o f  com m unity h o s t i l i t y ."  L earn ed  a d v e rs a ry  co u n se l  

s t a r t e d  o u t sa y in g  t h i s  in  1 9 6 0  an d , l o  and beho ld , I  am
!' I

s t i l l  h e a rin g  it from  the w itn e s s  s ta n d  on th e  16th day o f  

J u ly  in 1971. I  f e e l  l i k e  r e p e a tin g  th e  l a t e  G overnor 

jj Clements o r a to r y  in  his k ey n o te  sp ee c h , “How lo n g ? How lo n g ?"
‘j

I f  y o u r p le a s e , how lo n g  aha 1.1 we be re q u ire d  t o  b e a r
'! j
|i
, t h i s  burden?
! I

They seek  t o  r e q u ire  th e  hi a c k  c h ild r e n  t o  c a r r y  

th e  burden o f  d e s e g re g a tio n  even  in  th e  mi n ima l  p la n  w hich  

th e y  do su b m it.

I  su b m it, i f  th e  C o u rt p le a s e , t h a t  i t  i s  tim e  

f o r  them  t o  s to p . T h at th e y  sh ou ld  be o rd e re d  to  im plem ent
I

th e  p l a i n t i f f s *  p la n  in s o f a r  a s  p u p il assig n m en t p o r tio n  o f
II
i! the plan i s  co n cern ed  fo r th w ith , t h a t  th e  p r o v is io n s , th e  

jj things that we h ave m entioned in  o u r o b je c tio n s , su ch  a s  th e

s p e c i f i c  p r o v is io n s , th e  s i t e  s e le c t io n  sh o u ld  be made inj:
ij aiy h  a m anner a s  t o  maxi ml r e  in te g r a t io n , th a t  f u l l  and

Si
• a w ; ,  «  a  t-i M . , "  . R E P O R U H S  C . M A I I A N O *  • *  t N N « S . S f *

jj M » H T i N O * . E  H H 8 B E .



235 1929
i|

ii

•j![
;i

i*■j
ji

.1
;'l

’  1

ll'I
•I

cawpletss reports should be required, as we mentioned and a• 
we believe we sulcaltted as an exhibit to your Honor, the 
appropriate provision should be mads that as set out in our 
objections the faculty will not be assigned in a discrimina­
tory manner, so that there will be a recruiting provision 
for recruiting of black teachers and a 5 0 - 5 0  floor that 
Dr. Henry mentioned is acceptable to us. The floor should 
be set as a goal for the employment of black teachers and 
that the provision should be included which would protect 
black children from the prejudiced white teachers and the 
middle class white achievement tests.

If the Court please, there is a mountain of 
paper on the Court's desk, ss there is on my desk, but you

T

wade through all of that mountain of paper which we have 
been ck iuged with in the past week, if your Honor please, 
and you won't find one thing except, “We disagree with the 
Supreme Court's decision in Swan. We want this Court to 
ignore that. Wo hope that the Sixth Circuit Court of Appeals 
said something in its last opinion that might help us achieve 
this and we commend that to your Honor. We can't really say 
positively that there is anything that helps us but, please, 
your Honor, ignore the Supreme Court of the United States.- 
That * s all the papers say when you boil it down and I 
respectfully suggest that we are entitled to relief now.

They, themselves, said that if they are to

m . A P  a  A - r  ■ H ' M  •• . p  W f c P O H ' F R S  4 M A I ' * N O O C *  T f  N M S S E E

i
P  r N M A W M N O A i f c  M U B B f .



1930
impxamenx. desegregation by the first of Septanbar they need 
to » \ art now. every day that is lost is a day that is lost 
in the actadni str at ion of the plan. 1 respectfully ash 
your Honor not delay any further and order a plan into 
effect inmadiately.

MR. WITTi May it please the Court, perhaps too 
many words have been used in this Matter already, but perhaps 
1 should use a few minutes in this situation to a few
points.

Since your Honor's decision of May the 19th, the 
seven members of the Chattanooga Board of Education, the 
superintendent and his staff, have worked as hard as any 
group that I know of and as conscientiously as I can iaagino 
anybody attempting to do and ra-whorl ng that there are 
three black members of this Board and four white members 
of this Board, to attempt to understand what their constitu­
tional responsibility is, not in theory, not yesterday, not 
tomorrow, but now.

In the course of this period of time there ware 
ten meetings of the Board and every meeting, with the possible 
exception of one for about an hour or so, every member of 
Board was present. The shortest meeting was two and a half 
hours, the longest meeting was six and a quarter hours. This 
is a Board that is a voluntary Board. I am not saying that 
to apologize but to point out that these people are not paid

h  • A S ,  1  a ■ I . .  M t v  f .  k M - O R ' - R s  (  H * H * N O O O A  T t N M S S E t  

«  h  * f  R  f  N < r M A W ’ i N D A  f  n  *., B  B  E l



1931
for wtiat they do. not paid money. and certainly not paid la 
public acclaim or approval, but they are paid by an awareness 
that they axe attempting to meat the responsibility of the 
educational opportunity for children in the era— uni ty aad in 
as trying a time as public education has ever seen.

It is obvious that the issue is cctapl&x and it 
has been called complex many times and is a severe under** 
statement. Public education is scarcely a hundred years old. 
Public education is far from perfect. It doesn't even 
approach being perfect, but this Board has tried to do the 
best it knows how. This does not mean that its plan is 
perfect. This does not mean that this plan couldn't be drawn 
in a better fashion perhaps with more time, but it does mean 
that in the period of time they have made a maximum effort 
and this is their decision, as I say. without a dissenting 
vote.

It is before the Court representing the consensus 
of the conflicts and ml, aundaratanriings and the tensions that 
exist in a coe— unity such as ours, but the Board reached its 
decision and it will support its decision and it represents 
its best judgment. For the implication to be that this lady 
and men of this quality have acted in bad faith is difficult 
to ignore. Certainly what has been a constitutional require­
ment exactly with regard to this school system has been 
ambiguous and difficult to ascertain in the events of

u  ■» £ -  t* v  ' J ' . n  W t H o R ' t M S  < <A T I A N O C ' G A  T E N N E S S E E

l i t  • m f  N  f  r t l l H B t ,  .



1932

l a s t  45  d ay s ahouxd max* this clearly evident to all who cars 
t o  read the various decisions over that period of tins.

This school system exists for the 25,000 school 
children in this city, it has no other reason fox existence.
The Board is attempting to do and has always attecpted to do

i
what is best for tboeo children, black or white, and under 
circumstances that have not been duplicated and as the Supreme 
Court said itself in Swan, in a period of time in the history 
of our country in which we have never had a similar situation, 
so the guidelines are far from perfect and what is before the

j

Court represents the best judgment of the Chattanooga Board 
o f Education and I would close with paraphrasing from the 
Goss decision in which they refer to an earlier decision by 
Judge Taylor. He speaks of it in terms of the ultimate 
responsibility of the Court, but in the same sense the first 
responsibility was the Board's.

The presentation of that responsibility was the 
attorneys and there are realities, "If this Board decides 
wrongly, the transition toward the goal of a harmonious and 
unified school system— a goal to which ail parties to this 
case subscribe— will receive an untold setback. If it decides 
rightly, there may well be smooth and steady progress toward 
full integration. Seme individuals, parties to this case, 
will not themselves benefit from the transition. At a turning 
point In history same, by the accidents of fate, move on to

^  , , A  n r  a  <• > -  M • ( O C R  k f c P O R T E R S  « m a I T A N O O G A  T E N N E S S E E

K i f t H E N C t  M A W T i N O A l E  B  B  c L L



|Il Iji tlie new order, other*, by the sane late. may not. IX the
i . j
j| transition is made successfully, these plaintiff a will haveJ

had a part. Hoses saw the land of Judah from Mount Piagah,
;i
though he, himself, was never to set foot there."

' MR. WXLJLIAMSi May it please the Court, may I 
-just— I know I don't have the right to close, but I can't 
resist, you know that language from Judge Taylor, that has

I|| haunted me since I first heard it in that case that I handled !!! !
jj and I simply want to state that any time I hear that language : 

ever quoted in my presence again I am not Moses. I want to 
say I am an American citizen and ay people axe American 
citizens and I haven't got religion enough to have other 
fritmari beings saying to me that they have the right to reserve 
my rights the Constitution and the rights of my children
and other black children to be enjoyed by somebody else under 
some mythical Old Testament theory about the Mountain of 

• pisgah and I simply want to state that neither as counsel 
nor as an American citizen do I accept the right of the

I
 Jurist to compare the rights of a people in court to mass 

mythical Biblical theory such as that and I omitted calling 
| the Court's attention to one thing, and if the Court will 
I permit I would appreciate reading to the Court from the 

case o± Goes vs. the Board of Education of the City of
||

1 j Knoxville, Tennessee, not of the District Judge but of the
j!

decision of the Supreme Court of the United States decided

1933

•<t P O R 1 c R b T t N N K S S f P

- N  O  A fc H U B 8 F I  •



I

1934
June 30. 1970, wherein that Court said, “Of course, the 
District Court oust conduct forthwith such proceedings as 
may no required for the prosit determination of this question."

system nad failed to maintain a unitary system as defined in 
Swan vs. Char lot t e-Mecklenburg Board of Education, and should

IIit find that the respondents have not maintained a unitary 
system, and 1 want to stop right there because this Court has
already, is already that far, this Court has already dot
that they have not maintained a unitary system, then says the 
Supreme Court. "Respondents must terminate dual school systems 
at once." Alexander vs. Holmes Board of Education.

along with the Alexander case must be considered the case of 
Carter vs. School Board wherein the most conservative member 
on that court said that eight weeks was a maximum time for 
school roards to submit a plan and get it approved and 
implement it in the middle of the year and the majority of 
the judges on that court, if your Honor please, at least 
several members of that court, felt that it ought to be done 
forthwith.

into consideration in connect ion with any further delay in
this case.

That is, to wit, whether Knoxville's school

I might also add, if your Honor please, that

how, if the Court please, that has to be taken

We are already to the point where the Court has

M ^ E R t N >  i T I N O A .  f  M J B B E L l

>< I G A I N N E S b E E



1935
before it acceptable plans, feasible desegregation plans, 
and the language of the coraoeiit of the bupreste Court of the 
United States is unmistakable and it seems to me transcends 
tc some extent that infuriating language which seems to 
relegate constitutional rights of American citizens to the 
situation, to the political situation of a Biblical Prophet.

Thank you.
THE COURT} All right. Now, gentlemen, with 

regard to the two exhibits from which Dr. Stolee was cross 
examined, one being the plan that he referred to that were 
not finalized, not approved regarding elementary schools, 
and tile other in which he referred, I believe, relating to 
junior highs that were not finalized and were approved, I 
assume those would be the next two exhibits in order and 
assume those would be filed on Monday.

KR. WITT* Yea, with regard to the elementary 
schools, we would have a amp and some statistical data, I 
would guess that this might be as many as—

the COURTS (Interposing) Well, just file a 
collective exhibit.

MR. WITTs Ten pieces?
THE COURT: Whatever it is on the elementary

schools.
MR. WITT: And junior high schools?
THE COURT: The one on the junior high school and

h A P I )  ft ■ n  VI C . o t i h i  K t P O R !  K R S  . . . A i  A N O O G *  r t N N E S S k t

H I - U R t N '  i  M A I J T I N D A ,  J H l i H H F l  •



1936

ii let that, be the next exhibits. the elementary school thenI
!| would be exhibit 147 and the junior high would be 148.
j;

(The proposed schools plans referred 
to above, if and when furnished, to 
be marked Exhibit Hoa. 147 and 148 
for identification and received in 
evidence.)

it I

ii THE COURT* How, then. Hr. Williams, you indicated
} that you would til. a brief on tha jietition to intervene or
I that you might wish to do so and you indicated ycu thought
i|
j you could get that in by Tuesday.II
) Mb. wlbLIWio: Yea. air. and X may not do a©
j

after reviewing. 1 want to reserve that because my brief was
1
j gotten up so hurriedly I am not sure it may not have some

ii holes in it.
the COURT* All right. Anything further at this

time?
MR. WITT* Hay it please the Court, the plan 

has maps attached to it and we introduced these as exhibits 
and these are the only maps that the School Board has. Could 
we make the shift from the ones that the Court has to make
them exhibits or vice versa?

THE COURT: Weil.
MR. WITT* Only three copies of these maps were 

made, Mr. williams has a copy, the Board has a copy and the 

Court has a copy.
MR. WILLIAMS* I don't understand what counsel

-  f l  S U  M '  C O U H  R F P O K l l H S  C H A r T A N O O G A  I t N N E S S E t



1937
i s  a&xJung.

■ML COURT: E x h ib i t  I3os. 1 4 3 , 1 4 2  and 1 4 4 .

MR. WITT: To tike amended p la n s  a t  d e s e g r e g a t io n ?

THE COURT: The c o p i e s  you have su b m itte d  f o r

the use o f th e  C o u rt a re  much more c o n v e n ie n t f o r  th e  C o u rt  

to use th an  th e  e x h i b i t s  w hich a r e  mounted on th e  b o a rd s . You 

c e r t a i n l y  w i l l  have th e  C o u r t 's  cop y  o r  th e  one mounted on 

che b o ard  a t  such  tim e  a s  you d e s i r e  t o  have i t .

Mk. WITT: Thank you, s i r .

THE COURT: I  w ould p r e f e r  j u s t  t o  keep  th e s e

c o p i e s  t h a t  I  c a n  f o l d  up f o r  p u rp o se s  o f  my u se  u n t i l  1 h av e  

ca ta p ie te d  my c o n s id e r a t io n  o f  th e  c a s e .

L e t  u s a d jo u rn  c o u r t  u n t i l  n in e  o 'c l o c k  on Monday.

(T h ereu p on , a t  5 : 0 2  p.xn. c o u r t  was a d jo u r n e d .)

R , C  m A H O  a  t A 1 i H m  T M C O U N t M f P O R T E R S  C h A I T A N O O G A  T K N N E S S f  fc

R E t E H f N  E N O A l F M U B B E  . .