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

    I n  t h e

Itxtteb Btnttn (tort of Kvpmlz
F or th e  S ix th  C ircuit  

Nos. 15,038-039

J ames J on athan  M app , et al.,
Plaintiffs-Appellants,

—v.—
T h e  B oard of E ducation  of th e  C ity  of Chattanooga, 

H am ilton  Co u n ty , T ennessee, et al.,
Defendants-Appellees.

J ames J o n ath an  M app , et al.,
Plaintiffs-Cross-Appellees,

T h e  B oard of E ducation  of th e  C ity  of C hattanooga, 
H am ilton  C o u n ty , T ennessee, et al.,

Defendants-Cross-Appellants.

BRIEF FOR PLAINTIFFS-APPELLANTS AND 
PLAINTIFFS-CROSS-APPELLEES

C onstance B aker  M otley
J ack  Greenberg
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

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

327 Charlotte Avenue 
Nashville 3, Tennessee

B ruce B oynton
431 East Ninth Street 
Chattanooga 2, Tennessee

Attorneys for Appellants



Statement of Questions Involved 
on Plaintiffs’ Appeal

1. Whether the court below erred in sustaining the 
motion of the defendants-appellees to strike from the 
complaint allegations with respect to the assignment of 
teachers, principals, and other professional school per­
sonnel on the basis of race, and portions of the prayer 
of the complaint seeking to enjoin racial personnel as­
signments ?

The District Court answered this question “ No”. The 
Plaintiffs-Appellants contend the answer should be 
“Yes” .

2. Whether the court below erred in refusing to require 
immediate desegregation of the Chattanooga Technical 
Institute, a two-year course beyond the high school level, 
and the Kirkman High School, the City’s only technical 
high school, both of which are limited to white students.

The District Court answered this question “ No” . The 
Plaintiffs-Appellants contend the answer should be 
“ Yes” .



n

Counterstatement of Questions Involved on 
Defendants’ Cross-Appeal

1. Whether the court below erred in disapproving that 
provision of the Desegregation Plan which provides for 
the continued operation of dual school zones throughout 
the entire period of transition to single school zones and 
disapproving that provision which requires parents to 
notify the board of their intention to have their children 
continue to attend the segregated school to which they 
were previously assigned under the dual zone system or to 
attend the desegregated school to which they will be re­
assigned under a single zone system!

The District Court answered this question “ No” . The 
Plaintiffs-Cross-Appellees contend the answer should 
be “No”.

2. Whether the court below erred in disapproving, on 
the record and evidence in this case, that provision of the 
Desegregation Plan which permits transfers from desegre­
gated schools based wholly upon the race and color of the 
majority of the children in the school!

The District Court answered this question “ No” . The 
Plaintiffs-Cross-Appellees contend the answer should 
be “No” .



I l l

INDEX TO BRIEF

PAGE

Statement of Questions Involved on Plaintiffs’ A ppeal.. i 

Counterstatement of Questions Involved on Defen­
dants’ Cross-Appeal .....................................................  ii

Statement of F a cts ...............................     1

A r g u m e n t : D irect A ppeal ........................................................... 14

A rgum ent  : Cross A p p e a l ............... _....... ........... ........... ........... 23

C o n c l u s io n ........................................................     27

Cases:
T able oe A uthorities

Augustus v. Board of Public Instruction of Escambia 
County, Florida, No. 19408 (July 24, 1962) ...........  15

Boson v. Rippy, 285 F. 2d 43 .......................................11, 26
Brown v. Board of Education of Topeka, 349 U. S.

249 ..... ............... ........ ...................... ....... ............. .......  17
Brown and Williamson Tobacco Corp. v. United 

States, 201 F. 2d 819 .......... ........ ................... ......  14

Cooper v. Aaron, 358 U. S. 1, 7 ............................. .....21, 25

Edwards v. Kings Mountain Memorial Hospital, 118 
F. Supp. 417 ..... ....... ............ ......................... ..........  14

Gibson v. The Board of Education of the City of
Nashville, 272 F. 2d 763-766 ............................... . 24

Goss v. Board of Education of the City of Knoxville, 
Tennessee, 301 F. 2d 164 ................................... ...21, 25



PAGE

Kelly v. Board of Education, 270 F. 2d 209, cert, 
denied 361 U. S. 924 ................. ....... ...... ...... ........... 11,

King v. Mutual Life Insurance Company of New 
York, 114 F. Supp. 700 .................... ...................... .

Kinnear Weed Corp. v. Humble Oil & Refining Co., 
214 F. 2d 891 ....... ............ ..... .................. ...... ........ .

McLaurin v. Oklahoma State Regents, 339 U. S. 637 ..
Maxwell v. County Board of Education of Davidson 

County, Tennessee, 301 F. 2d 828 .... .................... .....

Northcross v. Board of Education of the City of 
Memphis, 302 F. 2d 818 ....... ....... ........ .................. 17,

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) ....

Plessy v. Ferguson, 163 U. S. 537 ......... .................... .

Sipuel v. Oklahoma State Regents, 339 U. S. 637 ....
State of Florida ex rel. Hawkins v. Board of Control, 

350 U. S. 413 ................ ............. .......... .....................
Sweatt v. Painter, 339 U. S. 629 ...............................

U. S. v. Crown Zellerbach Corp., 141 F. Supp. 118 ....

Wilkinson v. Field, 108 F. Supp. 541 ...........................

25

14

15

19

25

24
24

19

19

20
19

15

15



I n  th e

luttefr (ta r t  of Appeals
F oe t h e  S ix t h  C iechit  

Nos. 15,038-039

J am es J o n ath an  M app , el al.,
Plaintiffs-Appellants,

T he  B oaed op E ducation  op th e  C ity  op C hattanooga, 
H am ilto n  C o u n ty , T ennessee , el al.,

Defendants-Appellees.

J am es J on ath an  M app , et al.,
Plaintiff s-Cr oss-Appellees, 

—v.—
T h e  B oaed op E ducation  op th e  Cit y  op C hattanooga, 

H am ilton  C ounty", T ennessee, et al.,
Defendants-Cr oss- Appellants.

BRIEF FOR PLAINTIFFS-APPELLANTS AND 
PLAINTXFFS-CROSS-APPELLEES

Statement of Facts

The present appeals, Nos. 15,038 and 15,039 are from a 
final judgment and decree entered in this cause on April 
20, 1962 by the United States District Court for the East­
ern District of Tennessee, Southern Division (Wilson, D.J.), 
approving a Plan of Desegregation of the public schools 
in the City of Chattanooga, Tennessee (84a-86a).]

The appeal by plaintiffs below (No. 15,038) involves 
issues presented by an interlocutory order entered May

1 Unless otherwise indicated citations are to Plaintiffs’ Appendix.



2

16, 1960 sustaining a motion to strike certain portions of 
the complaint, and by the final judgment’s failure to re­
quire immediate desegregation of a two-year technical 
training course offered in the City of Chattanooga at the 
Chattanooga Technical Institute and immediate desegrega­
tion of the City’s technical high school, “ Kirkman.” (These 
plaintiffs-appeJlants will he referred to hereafter as the 
plaintiffs.)

The cross-appeal, No. 15,039, has been taken in this case 
by the Board of Education of the City of Chattanooga, 
Tennessee (referred to hereafter as defendants) appealing 
from that part of the final order which: (1) failed to
approve the plan for continued operation of dual school 
zone lines until a system of single zones is established 
over a six-year period, and requiring parents to notify 
school authorities before a specified date whether their 
children will either enroll in the newly desegregated school 
to which they are assigned under the single zone plan or 
will continue in the segregated school to which they were 
previously assigned under the dual zone plan; and (2) 
disapproves a provision of the Desegregation Plan which 
permits children to transfer from desegregated schools 
where the majority of children in the school are of the 
opposite race.

The instant brief is in support of the plaintiffs’ first ap­
peal (No. 15,038), and is a reply to the defendants’ cross­
appeal (15,039). A single appendix accompanies this brief.

There have been two prior appeals in this case, both 
taken by the school authorities. The first appeal was taken 
by the defendants-appellees on December 2, 1960 following 
an order by the court below denying defendants’ motion 
for summary judgment, granting plaintiffs’ motion for 
summary judgment, directing defendants to submit a plan 
of desegregation before December 20, 1960, and providing



3

for a hearing thereon in the District Court on January 9, 
1961. Before that appeal could be heard it was necessary 
for defendants to submit their plan of desegregation which 
they did on December 20, 1960 and a hearing was held 
thereon on January 23, 1961 instead of January 9, 1961. 
Following this hearing, the District Court tentatively dis­
approved the plan submitted and ordered the defendants 
to submit, within 60 days, another plan. An appeal was 
taken from this order on February 10, 1961. Before either 
appeal could be heard defendants submitted a second plan 
on March 23, 1961.

Thereafter, on November 13, 1961, this court affirmed 
both judgments of the court below. Mapp v. Bd. of Educa­
tion of City of Chattanooga, 295 F. 2d 617 (6th Cir. 1961).

The first plan (87a-93a) submitted December 20, 1960, 
provided that in the school year 1962-3 compulsory segre­
gation would be abolished in selected schools in Chatta­
nooga in grades 1, 2, and 3 (88a). The selected schools 
were to be announced by October 1, 1961, permitting an 
entire school year to elapse before any desegregation took 
place (88a). Thereafter, beginning in 1963, one additional 
grade would be desegregated in the selected schools (88a). 
After the 1962-63 school year, desegregation was to be 
effected in other schools in accordance with plans to be 
submitted (89a).

Desegregation was to be effected in these selected schools 
by the establishment of a single system of school zones 
(89a). The plan provided that in the period of transition 
to single zones, children might continue the practice of 
attending schools to which they were zoned by the dual 
school zone system. These dual school zones were to re­
main in existence until single zone lines were in full and 
complete operation, although no terminal date had been 
fixed (89a).



4

The plan further provided that parents desiring to en­
roll their children in desegregated schools should file a 
written “ Notice of Intention”  with the defendant board 
prior to January 1, 1962. Transfers would be granted 
to a student from a desegregated school for good cause 
shown, good cause being “where the majority of students 
in that school or in his class are of a different race.”

Finally, the plan provided for continuance of the “ pro­
gram of elucidation” commenced bv the defendant board 
in July 1955 (91a).

The District Court’s judgment of January 27, 1961 was 
that the first plan did not meet the requirements of the 
Brown decision. However, the court did not then reject 
the first plan but gave defendants a right to file an alter­
nate plan, within 60 days, and reserved to defendants the 
right to a reconsideration of the first plan.

The second plan submitted by defendants on March 23, 
1961 was, in essence, a grade a year plan providing for
desegregation m all schools in the first grade in September
1961.

Consequently, on January 5, 1962, following this court’s 
affirmance of the two orders of the District Court direct­
ing defendants to bring in a plan, and rejecting the first 
plan, defendants filed an amendment to the original plan 
of December 20, 1960. This amendment is entitled: “ Im­
plementation of and Amendments to the Original Chatta­
nooga Plan of Desegregation, Submitted to the United 
States District Court, Eastern District of Tennessee, 
Southern Division, on December 20, 1960”  (20a-23a). Ac­
cording to this instrument, the first plan had been im­
plemented as follows: 1) between April and July 1961 
defendants had conducted a complete school census; 2) 
the defendant board announced at a special meeting on



5

September 30, 1961 the single school zone lines which 
would be in operation in selected schools in the school 
year 1962-63; 3) the defendant board also announced the 
names of the 16 schools which were to be desegregated 
in grades one through three upon the opening of school in 
September 1962-63; 4) forms to be used to give the board 
written notice of intent to enroll in a new school to which 
a pupil might be zoned under the new single zone system 
were distributed to all schools; 5) pupils and parents were 
notified of these developments; 6) the superintendent and 
his staff conducted many meetings to insure full under­
standing of the plan and the steps taken to implement 
same.

In addition to the foregoing, denominated “ implementa­
tion,” the original plan was modified in two respects: 1) a 
definite date (September, 1962) was set as the date for 
desegregation of six special programs, such as the classes 
for the multiple-handicapped, the severely mentally re­
tarded, etc. All elementary schools were to be desegre­
gated in grades one through four in September 1963 on 
the basis of single zones. No further desegregation steps 
were outlined, although the first order of the court below 

had expressly required defendants to 
include vocational training in their plan. A pre-trial con­
ference had been previously scheduled for January 5, 
1962, the day this implemented and amended plan was 
filed. This conference resulted in an order requiring 
defendants to amend their plan to provide for desegrega­
tion of vocational training within 10 days from the date 
of the order.

Thereafter, on January 15, 1962 defendants filed a 
document entitled, “Amendment to Original Chattanooga 
Plan of Desegregation, Filed December 20, 1960, as



6

Amended January 5, 1962, With Regard to Vocational 
Traning” (24a-26a). By this amendment, defendants com­
mitted themselves to a minimum desegregation rate of one 
additional grade each year after all elementary schools 
are desegregated in grades one through four in Septem­
ber 1963-64 school year. The desegregation of each addi­
tional grade, beginning with the fifth grade in 1964, was 
to take place throughout the system with the result that 
all elementary schools would be desegregated in grades 
one through six in September 1965. The plan then pro­
vided that in September 1966 desegregation would com­
mence in junior high school and continue each year there­
after through grades seven, eight and nine. Desegregation 
of the senior high school, including Kirkman Technical 
High School, was to commence in September 1969, con­
tinuing a grade-a-year thereafter until the senior class 
was desegregated in September 1971. The plan was that 
all schools be desegregated nine years after its commence­
ment. Attached to this amendment was a report adopted 
by the defendant board at its regular meeting on January 
10, 1962 at the suggestion of the superintendent. This 
report, according to the amendment, “ Summarizes the 
historical development of the varied curricula at the four 
senior high schools presently operated by the Chattanooga 
board, said report revealing that the courses offered at 
City High, Howard High, Kirkman Technical Institute, 
and Brainerd High varied in a substantial degree for 
various reasons only remotely influenced, by race” (em­
phases added) (25a-26a). In this report the defendant 
board contended that vocational education should not be 
singled out for special consideration as a part of the 
desegregation of Chattanooga’s city schools. Contained 
in this report is a chart listing the courses offered in the 
four high schools. A study of this chart reveals the defi­
ciencies in the technical or vocational program offered



7

Negroes at Howard High, the city’s only Negro high school, 
as compared with the technical program offered whites 
at Kirkman (33a-38a). This chart also demonstrates the 
limited academic programs available to Negroes at Howard 
High School as against the broader and more comprehen­
sive academic program afforded whites at Brainerd and 
Chattanooga high schools.

The original plan, of which the January 15, 1962 docu­
ments were amendments also provided that, on or before 
a specified date, parents of children who might attend a 
desegregated school as a result of the institution of a 
system of single zones, were to notify the school author­
ities of their intention to enroll their children in the newly 
desegregated school (90a). Failing such notification, the 
child presumably remained in the segregated school to 
which he was zoned under the dual line system. Parents 
of children entering school for the first time apparently 
had the right to notify the defendant board of their inten­
tion to enroll their children in the school in which such 
child would be enrolled under the new single zone system 
or of their intent to have that child enroll in the segregated 
school which he would have been eligible to attend but for 
the elimination of segregation.

As the opinion of the court below points out (69a-70a) 
this consent provision appears to relate only to the 16 
elementary schools selected for initial desegregation in 
September 1962, but this is not clear from a reading of 
the plan. However, it now appears that defendants have 
abandoned their appeal from that part of the judgment of 
the court below which precludes them from requiring any 
such notice of intention in the plan, as this ruling is not 
argued in their brief. In its opinion, the court ruled with 
respect to the notice of intention as follows:



8

The court does expressly disapprove of so much of 
the defendants’ proposed admission plan as would re­
quire any student or parent to apply for, or consent 
to, implementation of desegregation in accordance with 
the plan (79a).

Defendants’ notice of cross-appeal filed on May 18, 1962, 
states that it is “ limited strictly to paragraphs 9 and 13 
of said judgment as same may constitute disapproval of 
the admission and transfer provisions of the Chattanooga 
Plan of Desegregation as amended, particularly, Sections 
IV, ‘The Interim Operation of Present School Zones’ and 
VI, ‘Privilege of Transfer’ in original plan filed Decem­
ber 20, 1961” .

The brief of defendants on their cross-appeal is devoted 
entirely to the validity of the transfer provision as set fortli 
in Section VI of their plan and which provides as follows:

1. Upon receipt of applications as provided in existing 
school board policy, transfer of students in desegregated 
schools may be granted when good cause therefor is shown.

2. The following will be regarded as some of the valid 
reasons for good cause for transfer:

(a) When a student would otherwise be required to 
attend a school where the majority of students in that 
school or in his class are of a different race.

(b) When, in the judgment of the board, upon recom­
mendation of the superintendent, it is in the best inter­
est of the student, and the board policy, to transfer him 
from one school to another (90a-91a).

Subparagraph (b) is not in dispute on this appeal.

Although defendants do not discuss the validity of the 
notice of intention provision in their brief, they request a



9

reversal of the judgment below to the extent that it dis­
approves of “ the admission and transfer provisions” of 
their plan. (See Brief for defendants-appellants in No. 
15,039, pp. 5-6.)

Defendants’ plan of December 20, 1960, as amended Jan­
uary 5 and 15, 1962, was not adopted by the court below. 
After a hearing on the merits of defendants’ plan on Feb­
ruary 1 and 2, 1962, that court rendered an opinion disap­
proving the notice of intention and the transfer provisions. 
It approved the plan with the following modifications 
(81a-82a):

(1) The desegregation in September of 1962 of the first 
three grades in 16 selected elementary schools as designated 
by name in the defendants’ First Plan is amended. The fol­
lowing special programs will also be desegregated in Sep­
tember 1962: Class for multiple handicapped; classes for 
orthopedically handicapped children; authorization for the 
United Cerebral Palsy Program to be desegregated; classes 
for perceptually handicapped; classes for severely mentally 
retarded; class for educable mentally retarded at the Gr. 
Russell Brown School.

(2) The desegregation in September of 1963 of the first 
four grades of all elementary schools.

(3) The desegregation in September 1964 of the remain­
ing grades in all elementary schools.

(4) The desegregation in September of 1965 of the first 
year of all junior high schools.

(5) The desegregation in September of 1966 of the re­
maining grades in all junior high schools.

(6) The desegregation in September of 1967 of the first 
year in all high schools.

(7) The desegregation in September of 1968 of the re­
maining grades in all high schools.



10

(8) The desegregation in September of 1969 of the Chat­
tanooga Technical Institute.

(9) The Board of Education may adopt any admission 
or transfer plan as may in its judgment be reasonable or 
proper for the operation of the Chattanooga Public Schools; 
provided, however, that no admission or transfer plan may 
be based upon race and have as its primary purpose the 
delay or prevention of desegregation in accordance with the 
plan herein approved.

(10) The map of the proposed single school zones as 
attached to the defendants’ First Plan as amended is ap­
proved, with the School Board having the right to modify 
zones from time to time in accordance with their general 
policies and practices and without regard to purely racial 
factors.

(11) Within 60 days after implementing each annual step 
of the plan herein approved the School Board shall report 
to the Court as to progress under the plan to the date of 
the respective report. This cause will be retained within 
the jurisdiction of the Court and this order will be subject 
to modification from time to time as may appear just and 
proper.

(12) This order shall provide only for the minimum rate 
of desegregation and defendants shall at all times be vested 
with the discretion to proceed with desegregation at an 
accelerated rate. Except as herein expressly provided the 
defendants shall not be otherwise restrained by this order.

In disapproving the continuance of dual school zone lines, 
the provision requiring parents to notify defendants of their 
intention or to give consent before a specified date, the 
court ruled:

“ The initial provision . . . says in effect that for the 
school year beginning in September 1962, students



11

residing within a desegregated school zone who had 
formerly been attending a different school, may enroll 
in the desegregated school provided that his parents
give consent before a specified time.

* * #
“ It speaks of ‘single zone’ schools, but then refers to 

‘schools desegregated by the School Board’ as though 
these were different schools. No school becomes a 
single zone school until it is desegregated, and then 
only as to the grades desegregated. In short, the pro­
vision is not only somewhat confusing, but the Court 
is unable to understand the reason for any such pro­
vision in the Plan. As was recently held in the case 
of Northcross, et al. v. Board of Education, et al.,
6 C ir .,------ F. 2d --------, students ‘cannot be required
to apply for that to which they are entitled as a matter 
of right.’ ”

Disapproval of the transfer provision was predicated 
upon the testimony of the superintendent as to the resegre­
gation effect of a similar provision in the Nashville, Ten­
nessee plan (Appendix p. 43a) approved by this court in 
Kelly v. Bd. of Education of Nashville, 270 F. 2d 209 (6th 
Cir. 1959), cert, den., 361 U. S. 924, and the Fifth Circuit’s 
contrary decision in Boson v. Rippy, 285 F. 2d 43 (5th Cir. 
1961). The court below held:

It does appear that a similar transfer provision was 
approved by the Court in Kelly v. Board of Education 
case. However, the Court in that case held as it did 
“ on the evidence before us.”

In the record of the present case there was evidence 
by the witness, Dr. Weinstein, that the Nashville trans­
fer plan had operated to minimize progress under the 
desegregation plan.

The Court. . . disapproves of so much of the transfer 
plan proposed by the defendants as permits transfers



12

based only upon students being in a racial minority in 
any particular school.

The plaintiffs urged the court below to require immediate 
admission of Negroes to the Kirkman High School and to 
require the immediate desegregation of a two-year tech­
nical course at Chattanooga Technical Institute, but the 
court ruled that “ the same reasons which have herein been 
held to justify delay in the desegregation of academic 
courses in high school would also justify delay in the 
desegregation of vocational courses” (80a). Although the 
court below found that the Chattanooga Technical Institute 
is limited to white students, it permitted this institute to be 
desegregated as the next annual step following desegrega­
tion of the high schools (80a).

The motion to strike the allegations of the complaint in 
this case relating to the assignment of teachers on the basis 
of race came before the court below (Darr, D.J.) in May 
1960. At that time, the court struck from the complaint 
the following:

1. “ Plaintiffs, and members of their class, are injured 
by the policy of assigning teachers, principals and 
other school personnel on the basis of race and color 
of the children attending a particular school and the 
race and color of the person to be assigned. Assign­
ment of school personnel on the basis of race and color 
is also predicated in the theory that Negro teachers, 
Negro principals and other Negro school personnel 
are inferior to white teachers, white principals and 
other white school personnel and therefore, may not 
teach white children.”

2. “ Enter a decree enjoining defendants, their agents, 
employees and successors from assigning teachers, 
principals and other school personnel to the schools



13

of the City of Chattanooga on the basis of the race and 
color of the person to be assigned and on the basis of 
the race and color of the children attending the school 
to which the personnel is to be assigned

3. “ the assignment of teachers, principals and other 
school personnel on a nonracial basis,”

The court ruled that these allegations were not material or 
pertinent and therefore did not raise a justiciable question 
(Appendix pp. 16a-17a). The superintendent testified, how­
ever, on his deposition, which was subsequently admitted 
into evidence (see Pre-Trial Order), that teachers are 
assigned on the basis of race and color; that a Negro with 
the title of supervisor assists in the improvement of the 
quality of education in Negro schools; that there are no 
Negroes in administrative or clerical positions; that there 
are two Negro helping teachers assigned to Negro schools 
(39a-42a).

The superintendent also testified on the final hearing on 
the plan on February 1-2, 1962 that there are no plans for 
desegregating teachers (40a).



14

ARGUMENT: DIRECT APPEAL 

I

Whether the court below erred in sustaining the motion of 
the defendants-appellees to strike from the complaint alle­
gations with respect to the assignment of teachers, princi­
pals, and other professional school personnel on the basis of 
race, and portions of the prayer of the complaint seeking 
to enjoin racial personnel assignments?

The District Court answered this question “ No.” The 
Plaintiffs-Appellants contend the answer should be 
“ Yes.”

Plaintiffs submit that the Court below erred in granting 
Defendants’ motion to strike the allegations of the com­
plaint directed towards the non-racial assignment of teach­
ers and other school personnel. As a general proposition, 
the motion to strike parts of a complaint is not favored and 
in most instances will only be successful when attacking 
obviously frivolous and prejudicial matter. Edwards v. 
Kings Mountain Memorial Hospital, 118 F. Supp. 417; 
King v. Mutual Life Insurance Company of New York, 114 
F. Supp. 700. As this court noted in Brown & Williamson 
Tobacco Corp. v. United States, 201 F. 2d 819:

Partly because of the practical difficulty of deciding 
cases without a factual record it is well established 
that the action of striking a pleading should be spar­
ingly used by the courts . . . The motion to strike should 
be granted only when the pleading to be stricken has 
no possible relation to the controversy.

The issue of whether plaintiff’s complaint could properly 
request desegregation of the school system (as evidenced 
by racial assignment of teachers) presented serious ques­



15

tions of law and fact. A substantial question of law existed 
as to plaintiffs’ standing to request relief beyond non- 
racial assignment of pupils. An additional, and serious 
question of fact, which could only be resolved upon the pres­
entation of evidence existed as to plaintiffs’ claim of in­
jury to Negro students ensuing from the continuance of a 
major vestige of the segregated school system. It is a 
generally accepted proposition that the summary nature of 
a motion to strike renders it an improper instance for the 
settlement of serious questions of law and disputed ques­
tions of fact. Wilkinson v. Field, 108 F. Supp. 541; U. 8. v. 
Crown Zellerbach Corp., 141 F. Supp. 118. Further, de­
fendants can make no showing of prejudicial harm resulting 
from a full hearing on the issue of teacher segregation, and 
this is a necessary element when a motion to strike is to 
be sustained. Kinnear Weed Corp. v. Humble Oil <fc Refin­
ing Co., 214 F. 2d 891, 894. Plaintiffs, on the other hand, 
may be seriously prejudiced by the entertainment of such 
a motion for their complaint against racial assignment of 
teachers may be mooted by their admittance to schools 
where they will be taught by white teachers. Therefore 
as a threshold matter the granting of defendants’ motion 
was improvident.

All of these factors noted above were fully considered 
in the Fifth Circuit ease of Augustus v. Board of Public 
Instruction of Escambia County, Florida, No. 19408 (July 
24,1962) in which a portion of a complaint directed towards 
racial assignment of teachers was held to be improperly 
dismissed under a motion to strike. The Court of Appeals 
there stated:

Whether as a question of law or one of fact, we do not 
think that a matter of such importance should be de­
cided on motion to strike. . . . We hold, therefore, that, 
at the then stage of the proceeding, the district court



16

erred in sustaining defendants’ motion to strike the 
allegations relating to the assignments of teachers, 
principals and other school personnel on the basis of 
race.

The posture of this case differs from Augustus in one 
important particular. Although the district court sustained 
defendants’ motion to strike, testimony of the superintend­
ent, at the trial and on deposition, was permitted to be 
made a part of this record. This testimony firmly estab­
lishes defendants’ policy of assigning teachers and other 
school personnel on the basis of race.

Plaintiffs contend that given this state of the record, 
this court may upon finding the motion improperly granted, 
decide the issue upon the merits. This is an appropriate 
remedy, for the evidence relied on is completely supported 
by defendants’ own testimony and further establishes that 
defendants have no plan or intention to assign teachers on 
a non-racial basis at any time in the future. Such a proce­
dure is further dictated by the totality of circumstances 
attendant on this case: plaintiffs’ initial complaint to de­
segregate the Chattanooga public schools was served in 
April, 1960 and as of August, 1962, desegregation has been 
achieved in no measure whatsoever. Further, defendants, 
who have been fully aware of their obligation since the 
Brown decision of 1954 to proceed with all deliberate speed, 
have spent five years “ educating the citizenry”  while de­
segregating not one school in the city. When under court 
direction to proceed more concretely toward desegregation 
they have authored many dilatory plans whose main effect 
was to integrate in the slowest, most piece-meal fashion and 
retrogress to resegregation through racial transfer pro­
visions. The remedy plaintiffs propose would require 
defendants to assume their responsibility to discontinue 
the racial assignment of school personnel which further



17

postpones plaintiffs’ full enjoyment of their constitutional 
rights.

As regards the grounds upon which this court may find 
that teacher segregation is a violation of plaintiffs’ con­
stitutional rights, plaintiffs submit that Brown v. Board of 
Education of Topeka, 347 IT. S. 483, affirmatively requires 
the cessation of segregation in the entire school system. 
From the very beginning the Supreme Court approached 
these cases as an attack on segregation in the entire educa­
tional system as opposed to the right of individual Negro 
pupils to be admitted to white schools maintained by states 
under the separate but equal doctrine.

This was the very reason for setting these cases down 
for re-argument in 1954 after the court’s first pronounce­
ment that further enforcement of racial segregation in 
public schools is unconstitutional. Upon re-argument, 
Brown v. Board of Education of Topeka, 349 U. S. 249, 
the court again made clear that what was contemplated in 
these cases was a reorganization of the school system on 
a non-racial basis.

This court itself recognized the full import of the Brown 
case in Northcross v. Board of Education of the City of 
Memphis, 302 F. 2d 818, when it stated:

In May 1954, the Supreme Court of the United States 
decided that “ Separate educational facilities are inher­
ently unequal,” and that segregation of the races in 
separate schools deprived the minority group of the 
equal protection of the laws guaranteed by the Four­
teenth Amendment. Brown v. Board of Education, 
347 U. S. 483, and further, the first Brown case decided 
that separate schools organised on a racial basis are 
contrary to the Constitution of the United States.



18

It is a matter of common knowledge that the assignment of 
Negro teachers to Negro schools is one of the major ways 
in which the educational system is maintained on a segre­
gated basis. The harm inflicted on Negro children does not 
emanate solely from the fact that they attend school only 
with other Negroes, but is generated by the knowledge 
that their race is separated as an imputation of inferiority. 
I f teachers are assigned on the basis of race, then obviously 
the policy of segregation continues as a reminder of the 
formerly imposed racial discrimination, and the Negro 
students have not been relieved of the source of their 
harm—a segregated school system. Therefore, the rights 
they assert are not solely the rights of the teachers, but 
are personal and central to their relief.

Consequently, the rights secured by the Supreme Court’s 
decision in the Brown case could not have been so incom­
plete as merely to secure the right to attend a “ white” 
school in a racially segregated system. School authorities 
cannot, therefore, be heard to say that they have no duty to 
eliminate racial discrimination in the school system and 
may continue to operate segregated schools, assign teachers 
on the basis of race and, in short, do business as usual.

Teachers are an integral part of the school system and 
the mandate to end racial discrimination in the school 
system clearly carries with it the duty to end the policy of 
assigning teachers on the basis of race.

II

Whether the court below erred in refusing to require 
immediate desegregation of the Chattanooga Technical In­
stitute, a two-year course beyond the high school level, 
and the Kirkman High School, the City’s only technical 
high school, both of which are limited to white students.



19

The District Court answered this question “No” . The 
Plain tiff s-Appellants contend the answer should be 
“Yes”.

The defendants operate two educational institutions, 
Kirkman Technical High School and Chattanooga Techni­
cal Institute at which only white students may receive tech­
nical and vocational training. The Chattanooga Technical 
Institute provides two years of advanced training beyond 
the high school level. The only institution at which Negroes 
may- receive any vocational training is Howard High School 
which has a combined academic and vocational curriculum. 
It is undisputed that there are vocational training courses 
given at Kirkman High School which are not available in 
the Negro high school.2 There is absolutely no provision 
for Negroes to obtain two years of technical training be­
yond high school, as provided for whites at the Chattanooga 
Technical Institute.

The issue here is fairly simple. As an outgrowth of the 
doctrine of Plessy v. Ferguson, 163 U. S. 537, it was recog­
nized that where the state could not provide equal facilities 
however separate, Negroes could not be subjected to dep­
rivation of educational opportunities permitted all other 
citizens, and immediate admission of Negro plaintiffs to 
formerly all-white schools was ordered. Sweatt v. Painter, 
339 U. S. 629; Sipuel v. Oklahoma State Regents, 339 IT. S. 
637; McLaurin v. Oklahoma State Regents, 339 U. S. 637. 
In the Sweatt case, the State of Texas had opened a law 
school for Negroes, which the court, however, found unequal 
in staff, library, and curriculum to the University of Texas 
Law School which was limited to whites. The court stated:

2 The following courses are given at Kirkman High School and 
are not available to Negroes at Howard High School: Machine 
Shop, Sheet Metal, Welding, Drafting, Electricity, Commercial 
Art, Industrial Chemistry, and Printing.



20

. . . petitioner may claim his full constitutional right: 
legal education equivalent to that offered by the State 
to students of other races. Such education is not avail­
able to him in a separate law school as offered by the 
State.

We hold that the Equal Protection Clause of the Four­
teenth Amendment requires that petitioner be ad­
mitted to the University of Texas Law School.

In all of the above cases, the court refused to permit de­
fendants’ promises to equalize facilities in the future to 
modify the order for immediate admission. In Sipuel v. 
Oklahoma State Regents, supra, the court stated:

“ The state must provide (legal education) for her in 
conformity with the Equal Protection Clause of the 
Fourteenth Amendment and provide it as soon as it 
does for applicants of any other group” (at p. 631).3

Immediate admission where discrimination had produced 
demonstrably unequal facilities was the law prior to the 
Brown decision. Brown took on the further task of requir­
ing desegregation in public schools even absent a showing 
of inferior plant and other educational facilities. A post- 
Brown decision, State of Florida ex rel. Hawkins v. Board 
of Control, 350 U. S. 413, is the latest case to apply the 
rule of prompt and immediate admission. This case dis­
tinguished the second Brown decision of 1955 which re­
quired “ all deliberate speed” and held the rule of prompt 
admission was not modified where the state provides edu­
cational training for white persons which was not available 
presently in any form to Negroes. Such a holding was not 
limited to deprivation of collegiate or graduate school edu­

3 It is to be noted that defendants here, have made no promises 
to make the curriculum -St the Negro high school; equal to that 
of the white high school during the deferment of desegregation.



21

cation for Cooper v. Aaron, 358 U. S. 1, 7, which concerned 
admission to public schools stated:

Of course, in many locations, obedience to the duty of 
desegregation would require the immediate general 
admission of Negro children, otherwise qualified as 
students for their appropriate classes, at particular 
schools.

This court passed on the identical issue in Goss v. Board 
of Education of the City of Knoxville, Tennessee, 301 F. 
2d 164. In that case, the Fulton High School, which was 
limited to white students, offered some technical and voca­
tional courses which were not available in any Negro high 
school. Defendants proposed, as do defendants here, to 
reach the desegregation of this school pursuant to a stag­
gered desegregation plan for all schools which would have 
postponed desegregation of Fulton High School for nine 
years. The district court specifically rejected this solution. 
On appeal this court stated approvingly:

Judge Taylor wisely withheld approval of the plan 
insofar as it denied Negro students the right to take 
the technical and vocational courses offered at Fulton 
High School. The board should, as he suggested, 
present within a reasonable time a plan that would 
permit all Negro students who desire and are qualified 
to have an opportunity to take the special courses of 
this high school (at p. 168).

The court below based its acceptance of deferred desegre­
gation for vocational schools on testimony which attempted 
to justify the unavailability of various courses on the 
ground that employers would not hire Negroes with these 
skills. This argument is infirm on several grounds. The 
strength of the statement is questionable, since no Negroes 
have ever received such training, and consequently the



22

opportunity for refusing them employment has been nil. 
Further, Negro students are permanently disabled from 
even attempting to break down any racial barriers in em­
ployment because at the outset they are deprived of proper 
training. Given such training, they might achieve the 
gradual breakdown of racial barriers, especially with grow­
ing federal controls on racial discrimination in many areas 
of private employment.4 In addition to the practical as­
pects, it can never be legitimate, in terms of the constitu­
tional obligation to provide equal training for all students, 
for an educational system to impose racial discrimination 
on students as a reflection and reinforcement of supposed 
discrimination such students will meet on graduation.

Kirkman High School and Chattanooga Technical Insti­
tute, therefore, present a separate and more pressing need 
for desegregation and should be dealt with immediately 
outside the general plans for desegregation. This source of 
social and economic injury to the Negro community war­
rants immediate attention.

4 Executive Order 10925 bars private employers who receive 
Government contracts from denying employment to qualified per­
sons because of race.



23

ARGUMENT: CROSS APPEAL 

III

Whether the court erred in disapproving that provision 
of the Desegregation Plan which provides for the continued 
operation of dual school zones throughout the entire period 
of transition to single school zones and in disapproving 
that provision which requires parents to notify the board 
of their desire to have their children continue to attend 
the segregated school to which they were previously as­
signed under the dual zone system, or to attend the de­
segregated school to which they will be reassigned under 
a single zone system?

The District Court answered this question “ No” . The 
Plaintiffs-Cross-Appellees contend the answer should 
be “ No” .

Defendants are appealing from so much of the judgment 
below as disapproves their plans :

(1) To continue racial school zone lines during the 
period a school proceeded to full integration; and

(2) To require parents to make known their desire by 
a specific date, to send their children to a school open 
to all races under the newly drawn zone lines.

The plan is in essence one of leaving all children in their 
present segregated schools during the “ transition” period 
and requiring those who wish the opportunity to go to a 
desegregated school to make formal request for such. The 
defendants’ plan as such differs little from other school 
boards’ attempt to justify the continuance of segregated 
schools because a pupil placement law was available 
through which Negro parents could request transfer of 
their children to white schools. These laws have repeatedly



24

been held not to constitute a reasonable start towards 
compliance with the Supreme Court’s decision. Northeross 
v. Board of Education of the City of Memphis, 302 F. 2d 
818; Norwood v. Tucker, 287 F. 2d 798. As stated in 
Gibson v. The Board of Education of the City of Nashville, 
272 F. 2d 763-766, plans which require requests for transfer 
where racial zone lines are maintained by the school board, 
are not “ inconsistent with a continued policy of compulsory 
racial segregation.”

Defendants cannot defend their policy by claiming it is 
“voluntary” and not compulsory segregation if Negro 
parents do not make the request for transfer to a “ desegre­
gated” school for Negroes have no more right to request 
attendance at solely “Negro” schools than have whites to 
request attendance at solely “white” schools. They there­
fore cannot permit requests from parents to modify the 
obligation of the state to discontinue the maintenance of 
“ Negro” and “ white” schools. Goss v. Board of Education 
of the City of Knoxville, Tennessee, 301 F. 2d 164. The 
duty to desegregate a school system which the state has 
actively segregated, in violation of the constitution, is on 
the defendant school board, not the individual plaintiffs. 
Brown v. Board of Education, 349 U. S. 294, 300; Cooper v. 
Aaron, 358 U. S. 1, 7. As the court below stated, quoting 
from Northcross v. The Board of Education of the City of 
Memphis, 302 F. 2d 818, students “ cannot be required to 
apply for that to which they are entitled as a matter of 
right.”

The court’s decisions in Brown and Cooper established 
the right of all children to freedom from state-imposed 
educational segregation based on color. They make plain 
the state’s duty, not merely to afford an election to be 
unsegregated, but to affirmatively cease the organization 
of the school system on the basis of race. Nor do the de­
cisions contemplate an arrangement perpetuating segre­



25

gation subject to individual application by which desegre­
gation can be achieved only in isolated instances. The de­
fendants are attempting to shift to the individual a re­
sponsibility the constitution imposes on them. Behind this 
attempt is a hope that the Negro community will be qui­
escent and fail to apply for transfers, thus allowing the 
pre-existing pattern of segregation to continue. An evasive 
scheme, however ingenious, should not be permitted to 
nullify the right of plaintiffs to attend school on a non- 
segregated basis. Cooper v. Aaron, supra.

IV

Whether the court below erred in disapproving, on the 
record and evidence in this case, that provision of the 
Desegregation Plan which permits transfers from desegre­
gated schools based wrholly upon the race and color of the 
majority of the children in the school?

The District Court answered this question “No” . The 
Plaintiffs-Cross-Appellees contend the answer should 
be “No” .

As a part of defendants’ original plan submitted on 
December 20, 1960, they proposed to permit transfer from 
desegregated schools when “good cause” was shown. One 
reason taken as such good cause occurs:

When a student would otherwise be required to at­
tend a school where the majority of students in that 
school or in his class are of a different race.

A  racial transfer plan identical to this has been approved 
by this court on previous occasions. Kelly v. Board of 
Education, 270 F. 2d 209, certiorari denied 361 U. S. 924. 
Maxwell v. County Board of Education of Davidson County, 
Tennessee, 301 F. 2d 828; Goss v. Board of Education of 
the City of Knoxville, Tennessee, 301 F. 2d 164.



26

Another circuit has disapproved such a plan, Boson v. 
R/ippy, 285 F. 2d 43, and an application for certiorari in 
the Maxwell and Goss cases is pending in the Supreme 
Court of the United States for resolution of the conflict 
in circuits. Plaintiffs do not abandon their argument that 
the transfer plan, to any extent it is availed of by parents, 
must work toward re-segregation. The affirmance of the 
court below, however, may be had without reference to the 
validity of the plan on its face.

In the Goss case, this court sustained the racial trans­
fer plan, reasoning that only in its application may it be 
violative of constitutional rights. The court forthwith, 
however, admonished defendants “ that it cannot use this as 
a means to perpetuate segregation” (at page 168). To 
insure this rule, responsibility was left to the trial court 
to evaluate the transfer provision as an operating mecha­
nism :

“ The trial judge retains jurisdiction during the transi­
tion period and the supervision of this phase of re­
organization may be safely left in his hands” 5 (at p. 
168).

The court below expressly accepted the standard set by this 
court in the Kelly case and prohibited the use of the racial 
transfer plan on the basis of evidence before it that the 
plan would operate to perpetuate segregation.

It does not appear that a similar transfer provision 
was approved by the Court in Kelly v. Board of Edu­
cation case. However, the Court in that case held as 
it did “ on the evidence before us.”

5 Such delegation is in line with the second Brown decision 
which counseled that district courts which handled desegregation 
cases from their inception were best equipped to perform the 
judicial function of assaying what constituted good faith imple­
mentation of desegregation.



27

In the record of the present case there was evidence 
by the witness, Dr. Weinstein, that the Nashville trans­
fer plan had operated to minimize progress under the 
desegregation plan.

The Court. . . disapproves of so much of the transfer 
plan proposed by the defendants as permits transfers 
based only upon students being in a racial minority 
in any particular school.

The District Court’s order that the racial transfer rule 
was not to be a part of the general desegregation plan was 
probably a decision that no side mechanism be allowed to 
decelerate a rate of integration which was the bare mini­
mum of defendants’ obligation. Absent the transfer rule, 
the court was assured of total desegregation of the school 
system within seven years. Within the area of discretion 
the District Court made the decision to remove any factors 
which might disrupt the schedule and make progress 
toward desegregation more halting and uncertain.

CONCLUSION

For all the foregoing reasons, the judgment of the court 
below should be reversed as to Appeal No. 15,038 and 
affirmed as to Appeal No. 15,039.

Respectfully submitted,

C onstance B aker  M otley
J ack  G reenberg
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

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

327 Charlotte Avenue 
Nashville 3, Tennessee

B rijce B oynton
431 East Ninth Street 
Chattanooga 2, Tennessee

Attorneys for Appellants