Kelley v. Board of Education of Nashville and Davidson County, TN Appendix to Appellants' Brief

    MnlUh Bintm ( to r t  rtf Appeals
F oe t h e  S ix t h  C ir c u it

No. 13,748

I u  t h e

R obert W . K e l l e y , et al.,
Plaintiff s-Appellants,

B oard oe E d u cation  of t h e  C it y  of N a sh v il l e , 
D avidson C o u n t y , T e n n e s s e e , et al.,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR 
THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

APPENDIX TO APPELLANTS’ BRIEF

Z. A lexander  L ooby 
A von N. W il l ia m s , J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood  M a rshall  
Suite 1790 
10 Columbus Circle 
New York 19, N. Y. 
Counsel for Appellants

W il l ia m  L . T aylor

Of Counsel



TABLE OF CONTENTS OF APPENDIX

Docket Entries .....................................    la

Complaint.......................       4a

Answer ...........         14a

Supplemental Answer ......   32a

Transcript of Proceedings on November 13, 14, 1956 38a

P l a in t if f s ’ W it n e s s e s :

V. T. Thayer—
Direct .................................................... 39a

0. B. Iiofstetter—
Direct .................................................... 44a

Memorandum Opinion of the Court..........................  46a

Findings and Conclusions........................................... 57a

Judgment .................................................................... 65a

The Court’s Statement Delivered From the Bench .... 67a

O rder.......................................................................... - 81a

Transcript of Testimony on January 28, 1958 .......  82a
D e fe n d a n t s’ W it n e s s :

William H. Oliver—
Direct ...................................................  82a
Cross .....................................................  84a

PAGE



Opinion ....................................................... ................  88a

Order ...........................................................................  103a

Transcript of Proceedings on April 14, 1958 ............ 105a
D e p e n d a n t s ’ W it n e s s e s :

William H. Oliver—
Direct .................................    107a
Cross ......................................    117a
Recalled by the C ourt..........................  228a

Elmer Lee Pettit—
Direct .................................................... 129a
Cross ............................................   134a
Redirect ............................     148a

Mary Brent—
Direct .................................................... 150a
Cross .....................................................  156a

W. A. B a ss-
Direct .................................................... 159a
Cross .....................................................  163a

P l a in t if f s ’ W it n e s s e s :

Herman H. Long—
Direct .................................................... 171a
Cross .....................................................  184a

Dr. Preston Valien—
Direct .....................................   195a
Cross .....................................................  201a

Mrs. Preston Valien—
Direct ....................................    208a
Cross ...........   215a

11

PAGE



I l l

Coyness L. Ennix—
Direct .................................................... 222a
Cross .....................................................  224a
Redirect ................................................  225a

Memorandum Opinion................................................  236a

Findings of Fact and Conclusions of Law................  241a

Judgment .................................................................... 246a

PAGE



In t h e

Intfrfc itBtrirt CErntrl
fo e  t h e  M iddle D istr ic t  of T e n n e s s e e  

N a sh v ille  D iv isio n

.Robert W . K ell e y , et al.,

—v.-
Plaintiffs-Appellants,

B oard of E ducation  of t h e  C ity  of N a sh v il l e , 
D avidson C o u n t y , T e n n e s s e e , et al.,

Defendants-Appellees.

a ppea l  from  t h e  d istrict  court of t h e  u n it e d  states for
THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

Docket Entries
1. Complaint, filed September 23, 1955.
2. Answer filed jointly by all named Defendants, filed 

November 16, 1955.
3. Amended Complaint, and Order allowing same, filed 

November 30, 1955,
4. Answer of New Co-Defendants, Isaiah Suggs and 

W. E. Turner, Jr., filed December 15, 1955.
5. Three-Judge Opinion and Order remanding this 

action to be heard by a District Judge, entered 
March 28, 1956.

6. Order entered allowing defendants to file Supple­
mental Answer, entered November 13, 1956.

7. Supplemental Answer filed by Defendants, filed No­
vember 13, 1956.

8. Transcript of Proceedings on November 13, 14, 1956.



2a

Docket Entries

9. Memorandum Opinion of the Court, entered Janu­
ary 21, 1957.

10. Findings and Conclusions of Law, entered Febru­
ary 20, 1957.

11. Judgment Order, entered February 20, 1957.
12. Motion for Leave to File Supplemental Answer and 

Counter-Claim, filed by Defendants, filed August 30, 
1957.

13. Transcript of the Court’s Statement from the bench 
on hearing of Defendants’ Motion to file Supple­
mental Answer and Counter-Claim on September 
6, 1957.

14. Order Denying the Motion for Leave to File Sup­
plemental Answer and Counterclaim heretofore filed 
by defendants, entered September 23, 1957.

15. Report of Nashville Board of Education, filed De­
cember 6, 1957.

16. Specification of Objections to Report of Nashville 
Board of Education, filed by the Plaintiffs, filed De­
cember 23, 1957.

17. Motion to Dismiss filed by the Defendants, filed 
January 20,1958.

18. Transcript of Testimony, January 28, 1958.
19. Opinion of the Court, entered February 18, 1958.
20. Order entered Ordering that : (1) Motion to Dis­

miss Denied. (2) Plan for desegregation filed by 
School Board is disapproved. (3) Injunction should 
be withheld pending the submission by the Board 
of another Plan. (4) That Defendant shall file with 
the Court, not later than April 7, 1958, another Plan. 
(5) That a hearing on said last mentioned Plan be



3a

Docket Entries

held for approval or disapproval on the 14th day 
of April, 1958, entered March 19,1958.

21. Report of Nashville Board of Education, filed April 
7, 1958.

22. Specification of Objections to Report of Nashville 
Board of Education filed by the Plaintiffs, filed April 
14, 1958.

23. Transcript of Proceedings on April 14, 1958.
24. Memorandum Opinion of the Court, entered June 

19, 1958.
25. Findings of Fact and Conclusions of Law entered 

July 17, 1958.
26. Order of Judgment entered Ordering that: (1) That 

the original plan of Board of Education of City of 
Nashville approved as amended by the judgment of 
this Court entered on February 20, 1957, and as 
further amended by the amended plan filed April 
7, 1958—be approved, and that the prayer of the 
plaintiffs for injunctive relief be and is denied. (2) 
That jurisdiction of the action is retained during 
the period of transition, entered July 17, 1958.

27. Notice of Appeal to the Circuit Court—filed by 
Plaintiffs, August 15, 1958.

28. Bond for Costs on Appeal—filed by the Plaintiffs, 
August 15, 1958.

29. Notice of Cross-Appeal—filed by the Board of Edu­
cation of the City of Nashville, Davidson County, 
Tennessee, Deft., August 15,1958.

30. Bond for Costs on Appeal filed by the Defendant, 
Board of Education of City of Nashville.

31. Order extending time to file Record on Appeal to 
Nov. 13,1958, filed September 17,1958.



4a

(Filed September 23, 1955)

1. (a) The jurisdiction of this Court is invoked under 
Title 28, United States Code, section 1331. This action 
arises under the Fourteenth Amendment of the Constitu­
tion of the United States, section 1, and the Act of May 
31, 1870, Chapter 114, section 16, 16 Stat. 144, (Title 42 
United States Code, section 1981), as hereinafter more 
fully appears.

The matter in controversy exceeds, exclusive of interest 
and costs, the sum or value of Three Thousand ($3,000.00) 
Dollars.

(b) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 1343. This action is 
authorized by the Act of April 20, 1871, Chapter 22, section 
1, 17 Stat. 13, (Title 42, United States Code, section 1983), 
to be commenced by any citizen of the United States or 
other person within the jurisdiction thereof to redress the 
deprivation, under color of a state law, statute, ordinance, 
regulation, custom or usage, of rights, privileges and im­
munities secured by the Fourteenth Amendment of the 
Constitution of the United States, sec. 1, and by the Act 
of May 31, 1870, Chapter 114, section 16, 16 Stat. 144, 
(Title 42, United States Code, section 1981), providing 
for the equal rights of citizens and of all persons within 
the jurisdiction of the United States, as hereinafter more 
fully appears.

(c) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 2281. This is an 
action for a permanent injunction restraining, upon the 
ground of unconstitutionality, the enforcement, operation 
and execution of provisions of the Constitution and stat­

Complaint



5a

utes of the State of Tennessee by restraining the action of 
defendants, officers of such State, in the enforcement and 
execution of such Constitutional provisions and statutes, 
as hereinafter more fully appears.

2. This action is a proceeding under Title 28, United 
States Code, sections 2201 and 2202, for a judgment de­
claring the rights and other legal relations of plaintiffs 
and all other Negro children eligible to attend elementary, 
junior high and high schools owned, maintained and oper­
ated by the City of Nashville, Davidson County, Tennes­
see and demanding an injunction, for the purpose of deter­
mining and redressing questions and matters of actual con­
troversy between the parties, to-wit:

Whether Sections 11395, 11396, and 11397, Code of 
Tennessee and that portion of Section 12 of Article 11 of 
the Tennessee Constitution which makes it unlawful for 
white and colored persons to attend the same school vio­
late the Fourteenth Amendment of the United States Con­
stitution, and whether the exclusion of plaintiffs and other 
persons, similarly situated, from elementary, junior high 
and senior high schools owned, maintained and operated 
by the City of Nashville, Davidson County, Tennessee, 
pursuant to these statutes and constitutional provisions 
and any other law, custom, practice or usage violates the 
Fourteenth Amendment to the Constitution of the United 
States.

3. Plaintiffs bring this action pursuant to Rule 23 (a)
(3) of the Federal Rules of Civil Procedure for themselves 
and on behalf of all other persons similarly situated, who 
are so numerous as to make it impracticable to bring them 
all before the Court and who seek a common relief based 
upon common questions of law and fact.

Complaint



6a

4. Plaintiffs are Negroes and are citizens of the United 
States, State of Tennessee, and are residents of and domi­
ciled in the City of Nashville, Davidson County, Middle 
Division of the State of Tennessee. All of the infant plain­
tiffs can satisfy all requirements for admission to the 
public elementary, junior high and senior high schools 
maintained and operated by the defendants Board of Edu­
cation of the City of Nashville, Davidson County, Tennes­
see in and for said City of Nashville, Davidson County, 
Tennessee. Adult plaintiffs not applicants, are either par­
ents or guardians of the infant plaintiffs who are applicants.

5. (a) The defendant, Board of Education of the City 
of Nashville, Davidson County, Tennessee, is composed of 
the following board members, the defendants, Mrs. W. 0. 
Benson, Mrs. Tom A. Bland, Coyness L. Ennix, A. B. Gib­
son, 0. B. Hofstetter Sr., Henry Kantor, Elmer Lee Pettit, 
William H. Underhill and Neil H. Wright, who together 
constitute the Board of Education of the City of Nashville, 
Davidson County, Tennessee, and who are hereinafter re­
ferred to as defendant Board of Education.

(b) Said defendant Board of Education exists pursuant 
to the Constitution and laws of the State of Tennessee as 
an administrative department of the State of Tennessee, 
discharging governmental functions, and is by law a body 
corporate or a continuous body or entity.

(c) All of said defendants, above named as board mem­
bers of defendant Board of Education, are citizens and 
residents of the State of Tennessee, and are being sued 
herein in their official capacities as such board members.

(d) Defendant W. A. Bass is Superintendent of Schools 
of the City of Nashville, Davidson County, Tennessee, and

Complaint



7a

holds office pursuant to the Constitution and laws of the 
State of Tennessee as an administrative officer of the free 
public school system of Tennessee.

(e) Defendant William H. Oliver is Principal of East 
Nashville Senior High School and East Nashville Junior 
High School; defendant Jack Stanfill is Principal of Kirk­
patrick Elementary School; and defendant Miss Mary 
Brent is Principal of Glenn Elementary School; all of said 
Schools being public schools maintained and operated by 
defendant Board of Education in and for the City of 
Nashville, Davidson County, Tennessee.

(f) Defendants W. A. Bass, William H. Oliver, Jack 
Stanfill and Miss Mary Brent are citizens and residents of 
the State of Tennessee, and are made defendants herein 
and sued, in their official capacities as stated hereinabove.

6. The State of Tennessee has declared public educa­
tion a State function. The Constitution of Tennessee, 
Article XI, Section 12, provides:

“Knowledge, learning and virtue, being essential to the 
preservation of republican institutions, and the dif­
fusion of the opportunities and advantages of educa­
tion throughout the different portions of the State 
being highly conducive to the promotion of this end, it 
shall be the duty of the General Assembly, in all future 
periods of this Government to cherish literature and 
science.”

Pursuant to this mandate the Legislature of Tennessee 
has established a uniform system of free public education 
in the State of Tennessee according to a plan set out in the 
Code of Tennessee of 1932, Sections 2306-2540.3, and sup­

Complaint



8a

plements and amendments thereto. The establishment, 
maintenance and administration of the public school system 
of Tennessee is vested in a Commissioner of Education, 
a State Board of Education, County Superintendents of 
Public Schools, and County and City Boards of Education.

7. The public schools of the City of Nashville, Davidson 
County, Tennessee are under the control and supervision 
of defendant Board of Education and defendant W. A. 
Bass, acting as an administrative department or division, 
and as an agent of the State of Tennessee. Said Board of 
Education is under a duty to enforce the school laws of 
the State of Tennessee; to maintain an efficient system 
of public schools in the City of Nashville, Davidson County, 
Tennessee; to determine the studies to be pursued, the 
methods of teaching, and to establish such Schools as may 
be necessary to the completeness and efficiency of the 
school system. Defendant, W. A. Bass, as Superintendent, 
has the immediate control of the operation of the public 
schools of said City and is the administrative agent of the 
defendant Board of Education.

8. Defendant Board of Education maintains and oper­
ates in and for the said City of Nashville a number of public 
elementary, junior high and senior high schools, including 
those designated as Kirkpatrick Elementary, Glenn Ele­
mentary, East Nashville Junior High and East Nashville 
Senior High Schools, exclusively for the education, con­
venience and use of white school children residing in the 
City of Nashville. All of these schools afford adequate 
facilities to provide elementary and secondary instruction 
on a modern basis by grades. These schools are readily 
accessible to, and are used by, white school children re­
siding in the areas proximately surrounding the respective

Complaint



9a

schools; but the facilities afforded by these schools are 
denied by defendants to the infant plaintiffs and other 
Negro children, similarly situated, who reside in the areas 
proximately surrounding said schools, solely because of 
their race or color.

9. At the beginning of the Fall Term, 1955, eight of the 
infant plaintiffs presented themselves and made application 
for admission to Kirkpatrick Elementary School, four of 
the infant plaintiffs presented themselves and made ap­
plication for admission to Glenn Elementary School, two of 
the infant plaintiffs presented themselves and made ap­
plication for admission to East Nashville Junior High 
School, and seven of the infant plaintiffs presented them­
selves and made application for admission to East Nash­
ville Senior High School. Said infant plaintiffs reside in 
the areas served by said respective schools, and if they 
were white children they would have been admitted to 
said schools; but all of said plaintiffs were refused admis­
sion by defendants, to said respective schools, solely on 
account of their race or color. Defendants require Negro 
applicants to attend schools designated exclusively for 
Negro children.

10. The defendants rely on the following provisions of 
the Tennessee Constitution and Statutes, which read as 
follows:

Constitution of 1870, Art. 11, Sec. 12:
“ . . .  No school established or aided under this section 
shall allow white and negro children to be received as 
scholars together in the same school. . . . ”

Complaint



10a

Code of Tennessee, 1932, Sections:
“11395 6888a37. Unlawful for white and colored per­
sons to attend same school,—It shall be unlawful for 
any school, academy, college or other place of learning 
to allow white and colored persons to attend the same 
school, academy, college, or other place of learning. 
(1901, ch. 7, sec. 1.)

“11396 6888a38. Unlawful for teacher to allow such 
mixed attendance or to teach them in same class.— 
It shall be unlawful for any teacher, professor, or 
educator in any college, academy, or school of learning 
to allow the white and colored races to attend the same 
school, or for any teacher or educator, or other per­
son to instruct or teach both the white and colored 
races in the same class, school, or college building, or 
in any other place or places of learning, or allow or 
permit the same to be done with their knowledge, con­
sent or procurement. (Ib., sec. 2)

“11397 6888a39. Violation is a misdemeanor; fine and 
imprisonment.—Any person violating any of the pro­
visions of this article, shall be guilty of a misdemeanor 
and, upon conviction, shall be fined for each offense 
fifty dollars, and imprisonment not less than thirty days 
nor more than six months. (Ib., sec. 4, Modified.)”

11. The infant plaintiffs and all other Negro school 
children in the City of Nashville, Davidson County, Ten­
nessee, are thereby deprived of their rights guaranteed by 
the Constitution and laws of the United States.

Plaintiffs aver that the said constitutional and statutory 
provisions and all other laws of the State of Tennessee 
permitting or requiring segregation of the races in public

Complaint



11a

education fall within the prohibited group which the Su­
preme Court of the United States holds must yield to the 
Fourteenth Amendment of the Constitution of the United 
States. But if, as defendant Board of Education appar­
ently insists, said constitutional and statutory provisions 
and laws of the State of Tennessee are valid until specif­
ically declared invalid in a judicial proceeding, the plain­
tiffs here and now aver that the said constitutional and 
statutory provisions and all other laws, customs, practices 
and usages of the State of Tennessee requiring or permit­
ting segregation of the Negro and white races in public 
education are in violation of the Fourteenth Amendment 
to the Constitution of the United States, and are therefore 
unconstitutional and void.

12. Plaintiffs and those similarly situated and affected, 
on whose behalf this suit is brought, are suffering irrepa­
rable injury and are threatened with irreparable injury in 
the future by reason of the acts herein complained of. They 
have no plain, adequate or complete remedy to redress the 
wrongs and illegal acts herein complained of other than 
this suit for a declaration of rights and an injunction. Any 
other remedy to which plaintiffs and those similarly situated 
could be remitted would be attended by such uncertainties 
and delays as to deny substantial relief, would involve 
multiplicity of suits, cause further irreparable injury and 
occasion damage, vexation and inconvenience, not only 
to the plaintiffs and those similarly situated, but to defen­
dants as governmental agencies.

13. There is between the parties an actual controversy 
as hereinbefore set forth.

W h e r e fo r e , Plaintiffs respectfully pray the Court that 
upon the filing of this complaint, the Court convene a Three-

Complaint



12a

Judge District Court as required by Title 28, United States 
Code, Sections 2281 and 2284; the Court advance this cause 
on the docket and order a speedy hearing of this action 
according to law, and that upon such hearing:

The Court adjudge, decree and declare the rights and 
legal relations of the parties to the subject matter here in 
controversy in order that such declaration shall have the 
force and effect of a final judgment or decree.

The Court enter a judgment or decree declaring that 
the above quoted portion of Article 11, Section 12 of the 
Constitution of Tennessee, Sections 11395, 11396 and 11397 
of the Code of Tennessee, 1932, and any other laws, cus­
toms, practices and usages pursuant to which plaintiffs 
and other persons, similarly situated, are excluded from 
Kirkpatrick Elementary School, Glenn Elementary School, 
East Nashville Junior High School, and East Nashville 
Senior High School, or any other public elementary, junior 
high and senior high schools maintained and operated by 
defendant Board of Education in and for the City of Nash­
ville, Davidson County, Tennessee, solely because of race, 
violate the Fourteenth Amendment of the United States 
Constitution.

This Court issue a permanent injunction forever re­
straining and enjoining defendants and each of them from 
refusing to admit plaintiffs, and other persons similarly 
situated, to Kirkpatrick Elementary School, Glenn Ele­
mentary School, East Nashville Junior High School, East 
Nashville Senior High School, or any other public elemen­
tary, junior high or senior high schools maintained and 
operated by defendant Board of Education in and for the 
City of Nashville, Davidson County, Tennessee, solely be­
cause of their race.

Complaint



13a

Plaintiffs further pray that the Court will allow them 
their costs herein and such further, other or additional 
relief as may appear to the Court to be equitable and just.

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

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood Marshall 
107 West 40th Street 

New York 36, New York
Attorneys for Plaintiffs

Complaint



14a

Answer
(Filed November 16,1955)

Answer of Mrs. W. 0. Benson, Mrs. Tom A. Bland, Coyness 
L. Ennix, A. B. Gibson, 0. B. Hofstetter, Sr., Henry 
Kantor, Elmer Lee Pettit, William 11. Underhill and 
Neil 11. Wright, Members of the Board of Education of 
the City of Nashville, Davidson County, Tennessee: 
W. A. Bass, Superintendent of Schools of the City of 
Nashville, Davidson County, Tennessee, William H. 
Oliver, Principal of East Nashville Senior High School, 
Jack Stanfill, Principal of Kirkpatrick Elementary 
School and Miss Mary Brent, Principal of Glenn Ele­
mentary School

These defendants, for answer to the complaint filed 
against them in the above styled cause, say:

1, 2 and 3
Defendants admit the averments of Section 1, 2 and 3 of 

the complaint.

4
Defendants assume and, therefore, admit that plaintiffs 

are Negroes and are citizens of the United States and of 
the State of Tennessee and are residents of and domiciled in 
the City of Nashville, Davidson County, Tennessee. Defen­
dants also assume and, therefore, admit that the adult 
plaintiffs are either parents or guardians of the infant 
plaintiffs. Defendants are without information sufficient, to 
form a belief as to the truth of the averments that all of 
the infant plaintiffs can satisfy all requirements for admis­
sion to the public schools maintained and operated by the 
City of Nashville.



15a

5
Defendants admit the averments of Section 5 of the com­

plaint, except as hereinafter stated in this paragraph. Said 
Section 5 of the complaint avers that defendant William 
H. Oliver is Principal of East Nashville Senior High School 
and also of East Nashville Junior High School. Defendants 
admit that William H. Oliver is Principal of East Nash­
ville Senior High School. Defendants deny that William 
H. Oliver is Principal of East Nashville Junior High 
School. The Principal of said East Nashville Junior High 
School is H. B. McDonough.

6 and 7
Defendants admit the averments of Sections 6 and 7 of 

the complaint.

8
Defendants admit the averments of Section 8 of the com­

plaint subject to the explanation and qualification herein­
after stated in Section 14 hereof.

9
Defendants are without information sufficient to form 

a belief as to the averments of Section 9 of the complaint. 
The facts in respect to the matters stated in Section 9 of 
the complaint in so far as known to the defendants are as 
follows:

At the beginning of the school term 1955-56, certain 
Negro children, accompanied by persons who were appar­
ently their guardians or parents, sought admission to Kirk­
patrick Elementary School, Glenn Elementary School and 
East Nashville Senior High School. All of such applicants

Answer



16a

were then refused admission, as more fully appears in Sec­
tion 14 hereof. Admission was then denied to all of such 
applicants in the particular schools they sought to attend, 
other schools of the City of Nashville being available to 
them, because they were Negro children and for the reasons 
fully set forth in Section 14 hereof. The schools to which 
such Negro applicants sought admission had been estab­
lished as schools for white children. Admission for the 
school term 1955-56 was refused to the plaintiff applicants 
for the reasons set forth in Section 14 hereof upon the 
assumption that they resided in the areas in which they 
now claim to reside and upon the assumption that they 
met the scholastic requirements, other than race, then a 
prerequisite for admission, and no evidence in this respect 
was demanded from applicants nor any investigation of 
their residence or scholastic qualifications made by defen­
dants. Defendants have no reason to question the substan­
tial accuracy of the averments that those applicants who 
were denied admission to Kirkpatrick, Glenn and East 
Nashville High School are plaintiffs herein, but for lack 
of sufficient information, defendants cannot admit that such 
applicants reside in the areas proximately surrounding 
said schools or that they are of an age and with requisite 
scholastic qualifications justifying their admission into said 
schools.

Defendants deny that any applicants for admission to 
East Nashville Junior High School presented themselves 
to the Principal of such school. Defendants assume that 
those whom the complaint refers to as seeking admission 
to such school presented themselves to East Nashville 
Senior High School, William H. Oliver, Principal, and were 
denied admission by him upon the belief that they were 
seeking admission to the Senior High School.

Answer



17a

10

Defendants admit the averments of Section 10 of the com­
plaint.

11

Defendants deny that they have deprived plaintiffs or 
others of their rights guaranteed by the Constitution and 
laws of the United States. Defendants admit that the con­
stitutional and statutory provisions of the State of Ten­
nessee must yield to the Fourteenth Amendment of the 
Constitution of the United States, as interpreted by the 
Supreme Court of the United States. Defendants deny 
that it is now their insistence or has ever been their in­
sistence, as the complaint supposes, that laws of Tennessee 
requiring racial segregation in the public schools are valid 
until specifically declared invalid. As more fully appears 
in Section 14 hereof, defendants are aware that the Su­
preme Court of the United States has said that all provi­
sions of Federal, State or local laws requiring or permit­
ting racial discrimination in public education are uncon­
stitutional. Defendants are also aware that the Constitution 
of the United States provides that such Constitution shall 
be the supreme law of the land and that such Constitution 
is binding, anything in the constitutions or laws of any state 
to the contrary notwithstanding.

12 and 13
Defendants deny the averments of Sections 12 and 13 of 

the complaint, as is more fully explained in Section 14 
hereof.

14
Defendants aver that they are proceeding in good faith 

and with all reasonable promptness to implement the con­

Answer



18a

stitutional principle announced by the Supreme Court of 
the United States on May 31, 1955 in the case of Brown vs. 
Board of Education of Topeka, Kansas. Such decision 
recognized as a fact what these defendants as school admin­
istrators and school board members know, that there are 
complexities and obstacles which demand that the situation 
be studied and an intelligent plan formulated, consistent 
with the various public and private interests involved.

Defendants aver that their predecessors in office have 
created and established, and these defendants propose to 
operate and maintain, a public school system of high quality 
and with high standards and that the administration of 
such school system has been, and will be, without preju­
dice and without racial discrimination as the Constitution 
of the United States and the laws of the land are inter­
preted and applied in good faith.

For many decades the school system of Nashville, Ten­
nessee has been developed, built and operated in compliance 
with the principle of segregation, expressly written into 
the Constitution of Tennessee (1870), Article XI, Section 
12, by that provision forbidding that schools receiving 
State aid shall allow white and Negro children to be re­
ceived as scholars together in the same school and in com­
pliance with statutory provisions of Tennessee enacted pur­
suant to and consistent with said constitutional provision. 
Said principle of segregation having received the express 
approval of the Supreme Court of the United States in the 
case of Plessy vs. Ferguson in 1896 and the implied ap­
proval of such Court in many other cases, it was not merely 
the right and privilege but it was also the solemn legal duty 
of these defendants and their predecessors in office to 
adhere to the policy of racial segregation and to build a 
public school system based thereon. The Supreme Court 
of the United States does not have the power nor claim the

Answer



19a

power by overruling its prior decisions thereby to erase 
a century of history built upon prior constitutional doc­
trines.

As a consequence of the rule of segregation, schools have 
been located and built and they have been equipped and 
staffed to provide for these separate needs. If such opera­
tion is abruptly and totally abandoned without survey, 
without planning, without school census and without school 
districts established in the light of the constitutional doc­
trine, newly discovered as inherent in the Fourteenth 
Amendment, then the result will be very damaging to the 
quality of Nashville’s public school system, destructive to 
amicable association of the races and harmful to the pupils 
and the teachers.

Defendants aver that, fully conscious of their duties and 
obligations to plaintiffs, they are also aware of their duties 
and obligations to all the pupils and teachers of the Nash­
ville School system. Defendants propose to formulate 
their plans and to administer the schools of Nashville with 
a recognition of both duties and obligations.

Defendants aver that they, and their immediate prede­
cessors in office, have administered the affairs of the Nash­
ville school system without discrimination against the 
colored race. As evidence of this they point to the fact 
that during the past decade, capital expenditures for Negro 
schools have been a greater proportion of total capital 
expenditures than average daily attendance of Negro stu­
dents has been of total average daily attendance. Attached 
to this Answer and made a part hereof as Exhibit A is a 
statement showing average daily attendance and also show­
ing capital expenditures during each of the past ten years 
for schools for white pupils and for schools for colored 
pupils, and total expenditures.

Defendants further aver as evidence of a school admin­
istration in good faith and without racial prejudice, that

Answer



20a

there are presently employed in the schools of the City of 
Nashville 1003 class room teachers, of whom 324 class room 
teachers are members of the colored race, and that there 
are presently employed in the schools of the City of Nash­
ville a total of 1085 principals, supervisors, class room 
teachers and assistants, of whom 343 are Negroes. As 
further evidence of school administration in good faith 
and without racial prejudice, defendants aver that the 
Negro teachers in Nashville are paid on the same salary 
scale as are the white teachers, that such salary scale is 
the best in the State of Tennessee and that such salary 
scale compares favorably with those in other cities of the 
United States of similar population.

Defendants aver that the above mentioned decision of the 
Supreme Court of the United States of May 31, 1955 was 
brought to the attention of the defendant City Board of 
Education by the Defendant School Superintendent on 
June 9, 1955. On motion duly made and with one member, 
to-wit Coyness L. Ennix, voting in the negative, the matter 
was then referred to the Instruction Committee for study 
and report to said Board of Education. On July 14, 1955 
the Instruction Committee made a progress report to the 
Board, copy of which is attached to this Answer and made 
a part hereof as Exhibit B. Said progress report was 
approved by said Board of Education.

Said progress report advised the Board that the Instruc­
tion Committee had sent questionnaires to forty cities in 
the southern region in order that Nashville might make use 
of the experience of the other school systems, that replies 
had been received from approximately one-half of these 
and that the Committee was studying the data received. 
Said progress report informed the Board that to act in­
telligently, an accurate, up to date school census was neces­
sary and that permission had been asked of the State

Answer



21a

Board of Education to take such a census six months in 
advance of the normal date. The State Board of Education 
denied as impractical such request for an advanced date 
of the next school census, which Section 2474.1 of the Sup­
plement to the Code of Tennessee (1950) provides shall he 
taken between February 15th and May 31st, 1956. Said 
progress report also advised the Board that the Committee 
proposed to hold meetings of ail school principals to ask 
their advice and assistance in formulating a policy and 
suggested that interested citizens, including Parent Teach­
ers Association groups and other parents should be given 
an opportunity to meet and discuss the appropriate pro­
cedure.

On August 11, 1955 said Instruction Committee made 
another progress report, copy of which is attached to this 
Answer and made a part hereof as Exhibit C. Said second 
progress report was also approved by the City Board of 
Education, with one member, Coyness L. Ennix, voting in 
the negative. In this progress report the Instruction Com­
mittee suggested to the Board that it was considering the 
problem in its many aspects, that the Board must deal 
with the matter positively and yet unhurried. Such prog­
ress report pointed out that the school system of Nashville 
had operated for approximately one hundred years and 
that during all of this period, pursuant to the constitutional 
and statutory provisions of Tennessee, and having the 
approval of the Supreme Court of the United States, sepa­
rate facilities and separate schools had been maintained 
for white and Negro children. Said progress report pointed 
out that in view of the many problems inherent in the 
matter, many of which were enumerated in the report, it 
was not in the interest of the schools to undertake imple­
mentation of the decision of the Supreme Court of the

Answer



22a

United States of May 31, 1955 during the school year 1955- 
56.

Defendants aver that by approving the second progress 
report of its Instruction Committee, the City Board of 
Education determined, with member Coyness L. Ennix 
voting in the negative, that implementation of the decision 
of the Supreme Court of the United States on May 31, 1955 
would not be attempted during the school year 1955-56, 
but that the problem should have extensive study. Defen­
dants further aver that such is the specific status of the 
matter at this time. The Instruction Committee is working 
intensively on the matter and it has been directed by defen­
dant City Board of Education to make a further report as 
soon as may be practicable following the completion of the 
school census in 1956 provided for by Section 2474.1 of the 
Supplement to the Code of Tennessee (1950).

Defendants further aver that when Defendant Board of 
Education has formulated a plan for implementing said 
decision of May 31, 1955, defendants will seek the permis­
sion of this Court to file a supplemental answer which sets 
forth the then status of the matter and any plan then 
formulated. Defendants, therefore, say that all proceed­
ings in this case should be stayed until the City Board of 
Education has had a reasonable opportunity to receive and 
act upon the report of its Committee now studying the 
problem and reasonable opportunity to formulate an appro­
priate plan.

Laying aside their personal views and preferences, these 
defendants intend in their official capacities to comply with, 
and to be bound by, the decisions of the Supreme Court of 
the United States with respect to public education. In so 
doing, defendants do not intend to abdicate the adminis­
trative responsibilities committed to them by the govern­

Answer



23a

mental system inherent in the Constitution of the United 
States, and they do not intend to permit any association 
for any racial group, majority or minority, to administer 
the affairs of the schools submitted as a sacred trust to 
these defendants. Defendants do not propose to ask the 
Federal Courts to assume the functions and responsibilities 
of school administration; and in view of the separation of 
powers required by the Constitution and inherent in our 
system of government, defendants are confident that the 
Courts will not yield to the pressures and insistences that 
they do so.

Defendants aver the Supreme Court of the United States 
has not decided that the Federal Courts are to take over 
or regulate the public schools of the states. It has not 
decided that the states must mix persons of different races 
in the schools or must require them to attend schools or 
must deprive them of the right of choosing the schools 
they attend. What it has decided, and all that it has de­
cided, is that a state may not deny any person on account 
of race the right to attend any school that it maintains. 
This, under the decision of the Supreme Court, the state 
may not do directly or indirectly, but, if the schools which 
it maintains are open to children of all races, no violation 
of the Constitution is involved even though the children of 
different races voluntarily attend different schools, as they 
attend different churches. Nothing in the Constitution or 
in the decision of the Supreme Court takes away from the 
people freedom to choose the schools they attend. It does 
not forbid such segregation as occurs as the result of 
voluntary action. It merely forbids the use of governmental 
power to enforce segregation. The Fourteenth Amendment 
is a limitation upon the exercise of power by the state or 
state agencies, not a limitation upon the freedom of in­
dividuals.

Answer



24a

And now having fully answered, these defendants pray 
to be hence dismissed.

Answer

R eber  B oult  
E d w in  F. H u n t

Attorneys for Defendants

H oward, D avis, B o ult  &  H u n t  
Of Counsel

I hereby certify that a copy of this Answer has been 
mailed to Z. Alexander Looby, Esq., 327 Charlotte Avenue, 
Nashville, Tennessee, one of the counsel for plaintiffs.

E d w in  F. H u n t



25a

EX H IBIT A ANNEXED TO ANSWER

N a sh v ille  C it y  S chools

Average Daily Attendance 1946-55

Year White Negro Total
1945-46 ..... 15,059 6,458 21,517
1946-47 ..... 14,885 6,664 21,549
1947-48 ..... 15,132 6,913 22,045
1948-49 ..... 14,999 6,846 21,845
1949-50 ..... 14,826 6,977 21,803
1950-51 ..... 14,814 6,957 21,771
1951-52 ..... 14,467 7,030 21,497
1952-53 ..... 15,029 7,128 22,157
1953-54 ..... 15,807 7,461 23,268
1954-55 ..... 16,080 8,089 24,169

Capital Expenditures 1946-55

Year White Negro Total
1945-46 ..... .... $ 16,566.00 $ 84,664.86 $ 101,230.86
1946-47 ..... 28,840.00 28,840.00
1947-48 ..... 90,474.31 30,837.88 121,312.19
1948-49 ..... 633,729.45 262,629.04 896,358.49
1949-50 ...... 2,368,343.65 572,058.29 2,940,401.94
1950-51 ..... 517,608.14 98,729.16 616,337.30
1951-52 .... 206,475.72 201,044.43 407,520.15
1952-53 .... 432,517.95 473,518.45 906,036.40
1953-54 .... 1,102,901.82 1,110,775.17 2,213,676.99
1954-55 .... 278,777.70 909,095.38 1,187,873.08

Total ...... ..... $5,647,394.74 $3,772,192.66 $9,419,587.40



26a

July 14,1955
Nashville Board of Education 
Nashville, Tennessee 
Ladies and Gentlemen:

I .  P rogress R epo rt  of t h e  I n st r u c t io n  C o m m it t e e  
of t h e  B oard of E ducation  on  t h e  Q u e st io n  of 
D esegregation  in  t h e  P u b lic  S chools

The Board of Education has referred to this Committee 
for consideration the decree of the United States Supreme 
Court with regard to desegregation in our schools.

The Committee has given careful, thoughtful study to 
this problem, and we are aware of the necessity of action 
that will carry out the purpose of the Board and at the same 
time assure such procedures as will contribute to better 
understanding and harmonious cooperation of all our 
citizens in support of drastic changes that affect the lives 
of us all. We are presenting the Board with this progress 
report.

1. In order that we might profit by the experiences of 
other school systems, we have sent questionnaires to forty 
cities in the Southern region. Replies have been received 
from approximately half of these, and we are studying the 
data received. We believe that completion of this study 
will give us valuable help.

2. In order to act intelligently, we must have an accu­
rate, up-to-date school census. The problems of utilizing 
present buildings which have been built, equipped, and 
staffed by the Board of Education and the citizens of Nash­
ville must be decided when we know where the children 
are, grade placements, etc. The State Board of Education

EX H IB IT B ANNEXED TO ANSWER



27a

requires that this census he taken every four years, hut our 
Superintendent has asked permission to take the census 
six months in advance to facilitate our program.

3. We propose to hold meetings of all our School prin­
cipals for discussion of the problems, to ask their assistance 
and advice in formulating our policy. Furthermore, we 
believe that interested citizens, including parent-teacher 
association groups and other parents in each community 
who will be affected by decisions, should be given oppor­
tunity to meet and discuss in each school area the pro­
cedures that will be most appropriate in complying with 
the Board’s policy.

4. In view of the far reaching adjustments involved, we 
ask that the committee be given time to work out details, so 
that we may proceed with caution and guarantee the con­
tinued progress of a peaceful, harmonious cooperation for 
better relationships and the advancement of the best inter­
ests of all our children.

We ask approval of the Board of this progress report, 
and assure you that any changes or further developments 
will be brought to you for approval.

Bespectfully submitted,

I n stb u c tio h  C o m m ittee

Neil H. Wright, Chairman 
Mrs. Tom A. Bland 
Henry Kantor 
Elmer Lee Pettit

Exhibit B Annexed to Answer



28a

August 11,1955
Nashville Board of Education 
Nashville, Tennessee 
Ladies and Gentlemen:

P rogress R epo rt  of t h e  I n st r u c t io n  C o m m it t e e  
on  D esegregation

The Board of Education by official action has referred 
to the Instruction Committee of the Board the matter of 
studying the question of desegregation in the public schools 
and other matters arising since the Supreme Court’s deci­
sion on this issue.

Your Committee has gathered information from other 
cities and school districts affected by the Supreme Court’s 
decision and considered the problem in its many aspects, 
keeping in mind at all times that the Board must deal, 
justly with all concerned; that its course of action must 
be unhurried, yet positive.

For approximately one hundred years successive Boards 
of Education in the City of Nashville have operated a 
system of public schools for all the children of the City. 
This program was interrupted during the period of the 
War Between the States but immediately thereafter the 
operation of the schools again got under way. During this 
period of time it has been the policy of the Nashville Board 
of Education to operate a system of public schools for the 
city in keeping with the provisions of the Constitution of 
the State of Tennessee, of the Statutes of the State of Ten­
nessee, and in harmony with the provisions of the Charter 
of the City of Nashville, and with the laws of the City. From 
the time of the establishment of the Schools in the City of

EX H IBIT C ANNEXED TO ANSWER



29a

Nashville until the present separate facilities and separate 
schools were provided for White and Negro children. This 
course of action was amply supported by the Constitution 
of the State of Tennessee and by the Statutes of the State 
of Tennessee. Furthermore, this position was supported 
by opinion of the Supreme Court in the case of Plessy vs. 
Ferguson in 1896.

Now, on May 17, 1954, the Supreme Court of the United 
States announced that the court had reached a unanimous 
decision holding that the protection clause, the Fourteenth 
Amendment, prohibits the states from maintaining racially 
segregated public schools.

On May 31, 1955, the Supreme Court issued its imple­
mentation decision. In this decision the court said: “Full 
implementation of these constitutional principles may re­
quire solution of varied local school problems. School au­
thorities have the primary responsibility for elucidating, 
assessing, and solving these principles; courts will have to 
consider whether the action of the school authorities con­
stitutes good faith implementation of the governing con­
stitutional principles.”

It is manifestly clear that it would not be in the interest 
of the schools to undertake implementation of the court’s 
decision during the school year 1955-56. There are too many 
unresolved problems for this course of action to be initiated 
now. Furthermore, it should be pointed out that the Su­
preme Court itself directed the various Boards of Education 
to examine their individual local situations before making 
final decisions. The following problems are suggestive:

1—Determination of school boundaries
This problem requires that a complete census of the city 
be taken and that existing school facilities be studied

Exhibit C Annexed to Answer



30a

to determine accessibility and adequacy for a rezoned 
school system of the City.

2— Age-grade distribution of pupils
A careful study of the age-grade distribution of pupils 
will be required. That is to say, in a sixth grade school 
it will be necessary to determine how many children of 
a given age-grade category can be adequately taken care 
of and what demands will be made on each school.

3— The Selection and assignment of principals and teachers
The selection and assignment of principals and teachers, 
under a policy of desegregation, constitutes a significant 
problem within itself. The solution of this problem will 
require extensive study.

4— Athletic policy
Another problem on which policy will have to be deter­
mined is that of operation of an athletic program in 
the public high schools and junior high schools after 
desegregation.

5— Adaptation of the school curriculum so as to meet the 
needs of all the children, particularly in the high schools

This problem will require extensive study.

6— Orientation of principals and teachers with respect to 
the issues involved in a change in policy from a segre­
gated to a desegregated school system
Manifestly serious errors in judgment and practice on 
the part of principals and teachers might ensue without 
adequate preparation for such a significant change.

Exhibit C Annexed to Answer



31a

7—Determination of the scope and the timing of action for 
the initial step to be taken in desegregating the schools 
This matter will require careful study on the part of all 
concerned, including teachers, principals and parents. 
The question of taking a small segment of the overall 
problem and learning by doing how to handle the overall 
problem is involved here.

Respectfully submitted,

I n steu c tio 'n  C o m m ittee  
Neil H. Wright, Chairman 
Mrs. Tom A. Bland 
Henry Kantor 
Elmer Lee Pettit

Exhibit C Annexed to Answer



32a

Filed November 13,1956

Supplemental Answer to Amended Complaint of Mrs. W. 0. 
Benson, Mrs. Tom A. Bland, Coyness L. Ennix, A. B. 
Gibson, 0. B. Hofstetter, Sr., Maurice Pilsk, Elmer Lee 
Pettit, William H. Underhill and Neil H. Wright, Mem­
bers of the Board of Education of the City of Nashville, 
Davidson County, Tennessee; W. A. Bass, Superinten­
dent of Schools of the City of Nashville, Davidson 
County, Tennessee, William H. Oliver, Principal of East 
Nashville Senior High School, Jack Stanfill, Principal of 
Kirkpatrick Elementary School, W. E. Turner, Jr., 
Principal of Pearl Elementary School and Isaiah Suggs, 
Principal of Washington Junior High School

These defendants for Supplemental Answer to the 
Amended Complaint filed against them in the above styled 
cause, say:

In their Answer heretofore filed, defendants stated that 
when the Nashville Board of Education formulated a plan 
for implementing the decision of the Supreme Court of the 
United States of May 31, 1955, they would file, with the per­
mission of the Court, a Supplemental Answer setting forth 
the then status of the matter and any plan then formulated. 
Defendants now aver that said Board of Education, on 
October 29, 1956, adopted a plan, as set forth in a report 
of its Instruction Committee. Copy of said report and plan 
are attached to this Answer as an exhibit. In view of the 
fact that Exhibits designated A, B and C were attached to 
the original Answer, said exhibit attached hereto is desig­
nated Exhibit D.

Defendants aver that said plan constitutes good faith 
implementation of the governing constitutional principles

Supplemental Answer



33a

and is a prompt and reasonable start toward full compliance 
with the applicable decisions of the Supreme Court of the 
United States. Defendants, therefore, aver that the injunc­
tion sought should not issue.

And now having fully answered, these defendants pray 
to be hence dismissed.

R eber  B oult  
E d w in  F .  H u n t

Attorneys for Defendants

H oward, D avis, B oult  & H u n t  
Of Counsel

I hereby certify that copies of this Supplemental Answer 
have been delivered to Z. Alexander Looby, Esq., 327 
Charlotte Avenue, Nashville, Tennessee, one of the counsel 
for plaintiffs.

E d w in  F. H u n t  

EXHIBIT D

October 29, 1956
Nashville Board of Education
Nashville
Tennessee

Re: Report of Instruction Committee on Abolishing 
Compulsory Segregation in the Public Schools

Ladies and Gentlemen:
On June 9, 1955, the Board of Education after being ad­

vised of the Opinion of the Supreme Court of the United 
States of May 31, 1955, referred the subject of “racial dis­

Supplemental Answer



34a

crimination in public education” and all matters relating 
thereto to the Instruction Committee of the Board of Educa­
tion, with the request that said Committee make an inten­
sive study of the problem in all of its various aspects and 
make subsequent reports on its findings.

Pursuant to the direction of the Board the Committee has 
heretofore made two written reports reflecting its findings, 
It is unnecessary now to summarize such reports, which are 
part of the records of the Board.

In the Committee Report filed with this Board on August 
11, 1955, Item 7 dealt with the subject “Determination of the 
Scope and the Timing of Action for the Initial Step to be 
Taken in Desegregating the Schools”. In connection with 
Item 7, the Committee said:

“This matter will require careful study on the part of 
all concerned, including teachers, principals and par­
ents. The question of taking a small segment of the 
overall problem and learning by doing how to handle the 
overall problem is involved here”.

Subsequent to the filing of Report No. 2 on August 11, 
1955, your Committee has continued to study the problem. 
A number of meetings has been held by the Committee. In­
vestigation of progress or programs of other cities in the 
matter of desegregation has been made. Books and periodi­
cals relating to the matter have been examined. The Chair­
man of the Committee, the Superintendent and Supervisor 
of Secondary Education of the Nashville City Schools 
sought and obtained an extended conference with repre­
sentatives of two large cities which have executed plans for 
desegregation in public schools. Representatives of the 
Instruction Committee have attended work shop and other

Supplemental Answer



35a

group meetings to observe or to participate in discussions 
of the issues involved in desegregation.

The further studies of the Committee have convinced its 
members as to the soundness of the suggestion made in Item 
7 of its report on August 11, 1955, that a portion of the 
problem should be handled first and, based upon the results 
obtained and within the limits of facilities available, fur­
ther plans should be made. The segment selected for han­
dling should not be so large as to endanger the orderly ad­
ministration of public schools in a system that has been 
wholly segregated for many years. At the same time such 
segment should be sufficiently large to be a significant and 
worthwhile first step. After careful consideration, the 
Committee has concluded that the initial step should involve 
the first grade rather than older students who have here­
tofore been in segregated schools. This abolishing of com­
pulsory segregation in the first grade will involve an esti­
mated 3200 students.

As a consequence of its studies and investigation, and 
the exchange of views between its members and other in­
vited to meet with the Committee, your Instruction Com­
mittee now feels it is ready to submit a report and recom­
mendation to the Nashville Board of Education dealing with 
the initial step to be taken. Your Committee recommends 
the adoption by the Board of Education of the following 
resolution:

B e it  resolved by the Nashville Board of Education 
that the Board approve the report of its Instruction 
Committee on abolishing compulsory segregation in the 
public schools.
B e it  f u r t h e r  resolved that the Board of Education 
now determine and announce the following plan as the

Supplemental Ansiver



36a

initial step to comply with the decision of the Supreme 
Court of the United States in the case of Brown vs. 
Board of Education, said step to be taken as of Septem­
ber 1, 1957:

Supplemental Answer

P la n

1. Compulsory segregation based upon race is abol­
ished in Grade One of the elementary schools of the 
City of Nashville for the scholastic year beginning 
in September, 1957.

2. A plan of school zoning or districting based upon 
location of school buildings and the latest scholastic 
census without reference to race will be established 
for the administration of the first grade and of 
other grades as hereafter desegregated.

3. Every student entering the first grade will be per­
mitted to attend the school designated for the zone 
in which he or she resides, subject to regulations 
that may be necessary in particular instances.

4. Applications for transfer of first grade students 
from the school of their zone to another school will 
be given careful consideration and will be granted 
when made in writing by parents or guardians when 
good cause therefor is shown and when transfer is 
practicable, consistent with sound school administra­
tion.

5. The following will be regarded as some of the valid 
conditions to support application for transfer:
(a) When a white student would otherwise be re­

quired to attend a school previously serving 
colored students only.



37a

(b) When a colored student would otherwise be re­
quired to attend a school previously serving 
white students only.

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

6. The Instruction Committee is directed to continue 
its study of the problem and to recommend by De­
cember 31, 1957, the time of and the number of 
grades to be included in the next step to be taken 
in further abolishing compulsory segregation.

Respectfully submitted,

I n stb u c tio n  C o m m it t e e

Supplemental Answer

Neil H. Wright,
Chairman

Mrs. Tom A. Bland

Elmer Lee Pettit

Maurice H. Pilsk



38a

Transcript of Testimony of November 13-14, 1956
*  *  #  *  #

E dwabd F. H u n t , Esq.
Counsel for Defendants

-V. -V. «J£. -V-TP W  TP W  TV*

[13] “This is a class action brought by infant plaintiffs, 
by and through their parents or next of friends. The 
defendants are prepared to stipulate and now admit 
that those plaintiffs are residents of the City of Nash­
ville; that they are attending schools in the City of 
Nashville; that they sought admission in 1955 to schools 
other than those that they were attending; that the 
Negro plaintiffs sought admission to schools then 
operated for white children only and were denied such 
admission; that the white plaintiffs sought admission to 
schools operated for Negro children only and were de­
nied admission.

“That the plaintiffs in seeking that admission sought 
to go to the school most proximate to them in point of 
space. They were denied that admission for the reason 
that the Board of Education had not then formulated 
a plan for abolishing compulsory segregation in the 
schools of Nashville. We are prepared to admit and 
will stipulate those facts. So there is no occasion to 
bring in these twenty-one plaintiffs to prove, or to say 
that they have applied for admission. We [14] have in­
vestigated and have determined that they are residents 
of the City of Nashville, and some one sought admission 
to these schools and we think the inference perfectly 
clear that these are the ones who did it. For that reason 
we admit those facts.”

# # # # #



39a

D r. Y. T. T hayer, the nex t w itness called in  behalf of 
the p lain tiffs, hav ing  been firs t duly sworn, testified as fo l­
lows :

Direct Examination by Mr. Looby:
[137] Q. Will you state your name, please, sir? A. 

My name is V. T. Thayer.
Q. Dr. Thayer, you are listed in Who’s Who as an educa­

tor and editor. Is that your profession? A. That’s cor­
rect, educator, and I have been editor of a number of educa­
tional magazines.

Q. I ’m sorry, I didn’t understand you. A. I say I am 
primarily an educator. I have been editor of one or two 
educational magazines.

Q. And you also received your Bachelor of Arts, Master 
of Arts and Doctor of Philosophy Degrees from the Uni­
versity of [138] Wisconsin. Is that correct? A. That is 
correct.

Q. And your Phi Beta Key as an under-graduate? A. 
Yes.

Q. You served as Instructor of Philosophy and Psy­
chology in the University of Wisconsin from 1919 to 1922. 
Is that correct? A. That’s correct.

Q. And you were principal of the Ethical Culture High 
School in New York City? A. Yes, I was principal of the 
Ethical Culture High School from 1922 to 1924. Then I went 
to the Ohio State University as professor of secondary edu­
cation, and then returned to the Ethical Culture School in 
1928 as Educational Director.

Q. You were also editor of the American Review?' A. 
That’s true.

Q. 1923 to ’27, and were associate editor of the Journal 
of Educational Research 1929 to 1931? A. That’s correct.

Dr. V. T. Thayer-—for Plaintiffs—Direct



40a

Q. And yon were Educational Director of the Ethical 
Culture Schools in New York City from 1928 to 1948? A. 
That’s right.

Q. When were you professor at the University of Hawaii? 
A. Following my retirement from the Ethical Culture 
Schools [139] in 1948, I became visiting professor at the 
University of Hawaii in 1949 and ’50.

Q. From 1952 to 1956 what did you do? A. After return­
ing from Hawaii I was also visiting professor at Johns Hop­
kins University and the University of Maryland for a year. 
And in the past four years I have been visiting professor 
at the University of Virginia until, of course, this Fall.

Q. You have also written a number of articles for educa­
tional journals. Will you tell the Court just a few of those 
and on what subjects? A. Well, I ’ve written a number of 
books as well as articles. The first book that I wrote was a 
book called “The Passing of Recitation”, which had to do 
with educational methods. Then I was the joint author 
with Professor Alberty, of Ohio State University, “Super­
vision in the Secondary School”. Then, between 1931-2 and 
1940 I was chairman of the Commission on the secondary 
school curriculum, and joint author of the book called “Re­
organizing Secondary Education”, in addition, of course, to 
supervising the publication of the reports of other com­
mittees dealing with the work in science, mathematics, 
English, social studies and the like. And then in my own 
right, in addition, I have written a book called “Religion 
in Public Education”, “American Education Under [140] 
Fire”, “Public Education and its Critics”, and the “Attack 
upon the American Secular Schools”.

Q. In your work, Doctor, have you had any opportunities 
to investigate segregation in the schools? A. For the last 
four years, of course, at the University of Virginia, teach­

Dr. V. T. Thayer—for Plaintiffs—Direct



41a

ing in a Southern State, I considered that to be one of our 
most important problems to study and so as an integral part 
of my courses for the past four years, I have made a study 
of the problem of segregation, not carrying on research 
myself, but rather keeping informed regarding the research 
work that is going on, the problems that are involved and 
the like, so that I have attempted to study the problem 
from the standpoint of its administrative difficulties, the 
problems that it raises with reference to teaching in an 
organizational school and the like.

Q. I believe prior to that you were Superintendent of Sec­
ondary Education? A. Well, years ago I was Superinten­
dent of Schools in Ashland, Wisconsin, and also on the staff 
of the Superior Public Schools.

Q. From your training and your experience, especially 
in the last four years in the University of Virginia, when 
you studied and had your classes and work on segregation 
in the schools, I show you a copy of the plan submitted by 
the Nashville [141] Board of Education in compliance 
with the Supreme Court’s decision to desegregate, have you 
read that plan? A. I have. Yes.

Q. Will you give your opinion as to the plan? A. Yes, I 
will be very happy to. I think you are asking me to give my 
opinion, now?

Q. Yes. A. I wasn’t quite sure I  heard you properly. I 
think the plan runs counter to the whole trend of research 
with reference to successful compliance with the Supreme 
Court’s decision for a number of reasons. The plan to 
abolish compulsory segregation as outlined by the Nashville 
Board indicates a rather timid and hesitant attitude toward 
the problem which confronts the City, and the experience 
with reference to desegregation has been that success turns 
quite largely upon the attitude, the initial attitude of the

Dr. V. T. Thayer—for Plaintiffs—Direct



42a

Board of Education. If it takes a forthright and courageous 
attitude with reference to compliance with the law and then 
seeks the cooperation of community agencies and organiza­
tions, success is more likely to follow. But where the Board 
takes, as I say, a timid and hesitant attitude and studies 
only a segment of the problem, thus encouraging unruly 
groups in opposition to develop, the tendency is then for 
pressure to be exerted upon the Board to backwater, to side­
step, or to modify its plan and [142] the like, so that that’s 
my first criticism,—namely, that this does not give evidence 
of any forthright intention on the part of the Board to 
realize what is inevitable, ultimate compliance with the law.

Then, secondly, a further objection that I have, we also 
find from experience that success in eliminating compulsory 
segregation depends upon careful preparation for a change 
in each of the school communities affected. Now, this co­
operation on the part of the school community is best se­
cured when the community is dealt with as a whole. I mean 
a community of a school, an elementary school community, 
or a high school community, because all of the parents are 
involved when the school as a whole is taken into considera­
tion, the community as a whole is involved, but when you 
only take a fraction of the pupils in a school, such as the 
Nashville plan proposes to do in the first grade only, then 
it’s difficult to enlist the interest and support of the entire 
parent body through the Parent-Teachers Association, the 
community organizations that might be enlisted to support 
the plan to generate a favorable attitude and so on, are only 
partially involved. And so the weakness of this plan is that 
it does not make possible the Board of Education working 
with community groups to bring about wholehearted sup­
port of the plan on the part of the community and the 
school community as a [143] whole.

Dr. V. T. Thayer—for Plaintiffs—Direct



43a

On the other hand, it does make possible, almost invites 
opposition because only a portion of the community is in­
volved and it leaves open the question, What are we going 
to do next year, and the like? So, in a sense, it invites 
people who are opposed to compliance with the law to make 
their objections manifest and to create conditions that will 
cause the Board to be more hesitant the following year.

It is said that this plan is designed to study the situa­
tion and to learn from the situation, but it’s not a normal 
situation. I t’s only a partial approach to the problem in 
each school, and as I say encouraging conditions of opposi­
tion and the like to be taken into consideration later, so that 
you do not have an opportunity on the part of the Board 
to draw conclusions from what I say is a normal school 
situation.

Then, furthermore, within the school itself grades are 
going to be contrasted with each other. You have the 
younger children involved, but if we assume they go on 
grade by grade in subsequent years, you have within one 
and the same building children who are in segregated 
classes and children who are in non-segregated classes. 
They become easy agents for groups outside to create op­
position, so bullying tactics and the like may well be en­
couraged within the school, and [144] you are not utilizing 
the school staff and the student body as a whole to meet 
whatever problems arise. The very partial aspect, as I say, 
tends to create problems rather than to eliminate them.

Those are my basic objections to it. I might add that 
where there are administrative problems involved, as we 
know, where the school as a whole is involved it is possible 
to start preparation in the Summer or in the Spring and 
run through the Summer to bring about the cooperation and 
ask for the cooperation of community groups and so on,

Dr. V. T. Thayer—for Plaintiffs—Direct



44a

and by instituting early registrations and the like, a good 
many of the administrative problems can be pretty well 
solved in advance by the school as a whole, as easily as 
handling with one or two grades.

Q. Now, yon haven’t said anything about the interests 
of the children involved. You are saying that it creates an 
administrative problem by desegregating part of a school 
and not the other part? A. One part of the school is 
segregated and another part of the school is not segregated, 
I say that is to open opposition for unruly groups outside 
the school, to initiate, to stimulate, to encourage pupils 
to compare each other and introduce bullying tactics and 
create problems that would not be present at all if you were 
dealing with a school as a whole [145] and attempting to 
promote a spirit of cooperation and mutual understanding. 

# * # # *

0. B. Hofstetter—for Plaintiffs—Direct

Mr. 0. B. H o fstetter , being called as a witness on behalf 
of the plaintiffs, having been first duly sworn, testified as 
follows:

Direct Examination by Mr. Looby.
#  *  *  *  #

[186] Q. I believe you are a member of the Roman 
Catholic faith, are you, Mr. Hofstetter? A. I am.

Q. And have been all your life? A. Yes, ever since I was 
a year old, or somewhere in that neighborhood.

Q. Do you live in Nashville, Tennessee? A. I ’ve lived 
in Nashville since 1910, and in the suburbs and in Nashville 
ever since I was born.

Q. Are you a member of the School Board? A. Yes.



45a

Q. And a defendant in this action? A. Yes.
Q. Mr. Hofstetter, have the Roman Catholic Schools in 

Nashville desegregated their entire system? A. Yes, they 
have, as to the high school and possibly one or two of the 
other schools, the Cathedral School, and I don’t know 
whether any of the others have any integration or not.

Q. How long has the Roman Catholic Church been de­
segregating its school system in Nashville? A. Since the 
beginning of the term in 1955, or possibly shortly after the 
beginning of the session, I ’m not certain.

Q. And that system has operated successfully since that 
time, [187] hasn’t it? A. So far as I know, it has. I 
haven’t attended the school, and I haven’t had occasion to 
be in the schools to notice how successful it is, but so far 
as I know, it has been. I might say this, that about the 
time school started the only colored Catholic High School 
in the City had been discontinued. It was out here where 
the Sears-Roebuck Building is now and the Bishop was con­
fronted with the problem of what to do with those high 
school students, and I think that was his reason for de­
segregating.

Q. And the School at St. Vincent’s on Highland Street, 
that has been closed and the children sent to the white 
school? A. If there are any white children going there, I 
don’t know it. I never heard that they were.

Q. There are no colored children going there, are there? 
A. St. Vincent’s?

Q. Yes. A. Yes, it’s filled up with colored children.
Q. The children go to the Cathedral School now, don’t 

they? A. Yes, I understand there are some colored chil­
dren in the Cathedral School.

0. B. Hofstetter—for Plaintiffs—Direct



46a

Entered January 21, 1957

On May 31, 1955, the Supreme Court in Brown v. Board 
of Education, 349 U. S. 294, 99 L. Ed. 1083, enunciated the 
principles which should govern the district courts in for­
mulating decrees to implement its prior ruling in the same 
case that racial discrimination in public education is un­
constitutional.

Immediately thereafter, the Board of Education of the 
City of Nashville began an intensive study to determine 
the methods to be followed in the City school system to 
effectuate the constitutional principles declared by the Su­
preme Court. These studies included investigation of the 
programs of other cities in the matter of desegregation, an 
analysis and review of pertinent books and periodicals, at­
tendance by its representatives at work shops and other 
group meetings, and the exchange of views between its 
members and others invited to meet with its committee.

From the outset the Board of Education frankly and 
openly recognized its obligation to maintain the school 
system upon a racially non-discriminatory basis. It has 
endeavored by its careful investigation and study of the 
question to find a solution which would accomplish the 
transition as soon as reasonably practicable consistent with 
the public interest and the efficient operation of the schools.

The problem confronting the Board of Education was 
not one which was concerned with a single school but with 
an entire school system which had been maintained for 
practically a hundred years—always on a segregated basis 
—and having an aggregate school population of 27,000 
students, of whom 10,000 were negro students. In this situa­
tion the Board concluded that it would need more time to 
formulate a workable plan of integration.

Memorandum Opinion of the Court



47a

In recognition of the reasonableness of this request for 
further time, a three-judge court, at the March 1956 term, 
granted the Board’s motion for a continuance of the case 
to the October 1956 term. In granting the continuance the 
Court specifically found that the Board of Education at an 
early date had announced that it would comply with the 
ruling of the Supreme Court in integrating the public 
schools of Nashville, and that it “has proceeded promptly 
to take steps toward that end, and is now acting in good 
faith and with appropriate dispatch in awaiting the tak­
ing of the school census and giving careful consideration 
to all factors involved, so as to arrive at a workable plan 
of integration, which appears to be a reasonable start 
toward full compliance with the May 17, 1954 ruling of the 
Supreme Court.”

At the October 1956 term the case was called and set 
for trial November 13, 1956. At the hearing which was be­
gun on that date, the Board of Education submitted its 
plan, adopted on October 29, 1956. The primary question 
presently before the Court is whether the plan so adopted 
is adequate to meet constitutional requirements.

The pertinent provisions of the plan are as follows:
1. Compulsory segregation based upon race is abolished 

in Grade One of the elementary schools of the City of 
Nashville for the scholastic year beginning in Septem­
ber, 1957.

2. A plan of school zoning or districting based upon loca­
tion of school buildings and the latest scholastic census 
without reference to race will be established for the 
administration of the first grade and of other grades 
as hereafter desegregated.

3. Every student entering the first grade will be permit­
ted to attend the school designated for the zone in

Memorandum Opinion of the Court



48a

which he or she resides, subject to regulations that 
may be necessary in particular instances.

4. Applications for transfer of first grade students from 
the school of their zone to another school will be given 
careful consideration and will be granted when made 
in writing by parents or guardians when good cause 
therefor is shown and when transfer is practicable, 
consistent with sound school administration.

5. The following will be regarded as some of the valid 
conditions to support application for transfer:
(a) When a white student would otherwise be re­

quired to attend a school previously serving 
colored students only.

(b) When a colored student would otherwise be re­
quired to attend a school previously serving white 
students only.

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

6. The Instruction Committee is directed to continue 
its study of the problem and to recommend by De­
cember 31, 1957, the time of and the number of grades 
to be included in the next step to be taken in further 
abolishing compulsory segregation.

It is the considered opinion of the school authorities, after 
mature deliberation, that the change from a system of 
segregated schools should be upon a gradual or step-by-step 
basis. They have concluded that an abrupt change in all of 
the city schools would be inconsistent with the public inter­

Memorandum Opinion of the Court



49a

est and with the efficient functioning of the school system 
itself. They believe that the soundest approach to the prob­
lem is to begin with desegregation in the first grade and to 
make plans for the future based upon the experience thus 
gained.

Whether the solution proposed by the Board is the best 
one which could be devised is a matter of dispute in the 
evidence. The views of the school authorities are supported 
by the testimony of expert witnesses. Other experts, testi­
fying for the plaintiffs, have expressed contrary opinions. 
They insist that if a plan of partial desegregation is 
adopted, each step should include not less than a normal 
functioning unit, i.e., elementary schools, junior high 
schools, or high schools. They further insist that any plan 
adopted should be a “total plan” in that it should set forth 
all steps to be taken to accomplish complete desegregation 
together with the time for taking each step in order that all 
interested parties will know definitely what to expect for 
the future.

In passing upon the adequacy of the plan submitted, this 
Court must give effect to the implementing opinion in the 
second Brown case, Brown v. Board of Education, 349 U. S. 
294, 99 L. Ed. 1083, wherein the Supreme Court stated, inter 
alia, as follows:

“Full implementation of these constitutional princi­
ples may require solution of varied local school prob­
lems. School authorities have the primary respon­
sibility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the 
action of school authorities constitutes good faith im­
plementation of the governing constitutional principles. 
Because of their proximity to local conditions and the 
possible need for further hearings, the courts which 
originally heard these cases can best perform this

Memorandum Opinion of the Court



50a

jud ic ia l ap p ra isa l. A ccordingly, we believe it  ap p ro ­
p r ia te  to rem and  the  cases to  those courts.

“In fashioning and effectuating the decrees, the courts 
will be guided by equitable principles. Traditionally, 
equity has been characterized by a practical flexibility 
in shaping its remedies and by a facility for adjusting 
and reconciling public and private needs. These cases 
call for the exercise of these traditional attributes of 
equity power. At stake is the personal interest of the 
plaintiffs in admission to public schools as soon as 
practicable on a nondiscriminatory basis. To effectu­
ate this interest may call for elimination of a variety 
of obstacles in making the transition to school systems 
operated in accordance with the constitutional princi­
ples set forth in our May 17, 1954, decision. Courts of 
equity may properly take into account the public inter­
est in the elimination of such obstacles in a systematic 
and effective manner. But it should go without saying 
that the vitality of these constitutional principles can­
not be allowed to yield simply because of disagreement 
with them.

“While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full com­
pliance with our May 17, 1954, ruling. Once such a 
start has been made, the courts may find that additional 
time is necessary to carry out the ruling in an effective 
manner. The burden rests upon the defendants to estab­
lish that such time is necessary in the public interest and 
is consistent with good faith compliance at the earliest 
practicable date. To that end, the courts may consider 
problems related to administration, arising from the 
physical condition of the school plant, the school trans­

Memorandum Opinion of the Court



51a

portation system, personnel, revision of school dis­
tricts and attendance areas into compact units to 
achieve a system of determining admission to the public 
schools on a nonracial basis, and revision of local laws 
and regulations which may be necessary in solving the 
foregoing problems. They will also consider the ade­
quacy of any plans the defendants may propose to meet 
these problems and to effectuate a transition to a ra­
cially nondiscriminatory school system. During this 
period of transition, the courts will retain jurisdiction 
of these cases.”

From the foregoing language it is thus clear that the 
district courts in fashioning decrees in cases of this nature 
are to be guided by equitable principles and that they are 
required, therefore, to give due weight to considerations of 
public interest. While it is recognized that the plaintiffs 
have a personal interest in admission to public schools as 
soon as practicable on a nondiscriminatory basis, the dis­
trict courts, as courts of equity, may take into account the 
necessity for time to eliminate a variety of obstacles in a 
systematic and effective manner. Primary responsibility 
for assessing the problems involved rests upon the local 
school authorities and the function of the courts is strictly 
judicial in character, i.e., to determine first, whether the 
action of school authorities constitutes good faith imple­
mentation of governing constitutional principles, secondly, 
whether the school authorities have made a prompt and rea­
sonable start toward full compliance, and third, whether the 
school authorities have carried the burden to establish that 
more time is necessary in the public interest, consistent with 
good faith compliance at the earliest practicable date, to 
carry out the ruling in an effective manner. It is not the 
duty of the Court to devise a plan of desegregation nor to

Memorandum Opinion of the Court



52a

substitute its judgment in matters of school administration 
for that of the constituted school authorities.

In the instant case, as already indicated, there is a dif­
ference of expert opinion as to whether desegregation of 
the first grade throughout the entire system, effective with 
the beginning of the September, 1957 school term, con­
stitutes a prompt and reasonable start toward full compli­
ance with the May 17, 1954 ruling of the Supreme Court. 
But viewing the question as a relative one which addresses 
itself to the local conditions obtaining in the City of Nash­
ville, the Court is of the opinion that the proposed first 
step is both prompt and reasonable. It involves 3400 
students and 115 teachers of whom 1400 students and 42 
teachers are negroes. It will abolish compulsory segregation 
for 12 per cent of the City’s aggregate school population, 
which is only 2 per cent less than the aggregate school 
population of the senior high schools.

The evidence justifies the conclusion that desegregation 
will confront the Board with numerous administrative 
problems, including increased difficulty in procuring and re­
taining teachers, teaching adjustments required because of 
differences in achievement levels of students among negro 
and white children, problems arising from a liberalized 
student transfer system supplanting a strict transfer sys­
tem, as well as other problems inherent in accomplishing 
a change so profound and far-reaching in its effects. While 
it is possible to argue that the first step towards desegrega­
tion should include a greater number of grades or at least a 
normal functioning unit, the Court is not able to find from 
the evidence that the conclusion reached by the Board is an 
unreasonable one.

But although the Court is of this view, and although it 
finds that the school authorities are acting in good faith

Memorandum Opinion of the Court



53a

and have carried the burden of showing that more time is 
necessary to comply with the decision of the Supreme Court, 
it cannot find that they have carried the burden of support­
ing the indefinite time to accomplish full compliance pro­
vided for in paragraph 6 of the plan. Paragraph 6 merely 
provides that the Instruction Committee of the Board shall 
continue its study of the problem and recommend by De­
cember 31, 1957, the time and number of grades to be in­
cluded in the next step to be taken in further abolishing 
compulsory segregation.

There is no indication from the plan itself or from the 
evidence what the Instruction Committee would recommend 
to the Board or whether, in fact, it would recommend any­
thing more than further delay. Nor is there any indication, 
if the Instruction Committee made a recommendation for 
a substantial further step, whether the recommendation 
would be approved or disapproved by the Board itself. Nor 
does the plan require the Board to take action upon any 
recommendation by the Committee at any particular time. 
Also, according to the proposal, after the Committee once 
made a recommendation for another step to be taken, its 
function would have been completely exhausted with no 
obligation to make recommendations for further steps 
toward desegregation. It is manifest, therefore, that para­
graph 6 makes the plan submitted partial and incomplete, 
and that it is in effect simply a proposal for indefinite post­
ponement of further desegregation, directly contrary to the 
mandate of the Supreme Court that full compliance with its 
ruling shall be accomplished with all deliberate speed.

The provisions of the plan for transfers of students 
from the school of their zone to another school were ap­
parently adopted upon the basis of the interpretation of 
the Supreme Court’s decisions set forth in Briggs v. Elliott,

Memorandum Opinion of the Court



54a

132 F. Supp. 777. In that case a three-judge court, presided 
over by Circuit Judge Parker, construed the Brown deci­
sions of the Supreme Court as not requiring integration but 
as merely forbidding discrimination, and as not forbidding 
such segregation as occurs as the result of voluntary action. 
If this is a correct interpretation, and the Court believes 
that it is, provisions which merely confer upon white and 
negro students a nondiscriminatory right to transfer would 
not appear to violate the Constitution. If the provisions 
should be applied on a discriminatory basis, any aggrieved 
party would have an appropriate remedy.

The Court has examined the recent opinion of the Court 
of Appeals in Booker v. State of Tennessee Board of Edu­
cation, in which a gradual plan for desegregating Memphis 
State College was disapproved. But because of material 
factual differences the decision in that case is not deemed 
to be in conflict with the conclusions herein reached. The 
Court found in that case that the plan was discriminatory 
in that it postponed the “qualified plaintiffs for five years in 
their admission to the freshman class, and expressly con­
templates that white students who have registered later 
than these plaintiffs shall be admitted earlier”. Further dis­
crimination was found in the fact that “plaintiffs may be 
compelled to seek education elsewhere in order to avoid dis­
crimination and to secure a college education now without 
being deferred for several years”. Manifestly the Nashville 
plan does not contemplate or involve such discrimination 
between the races. It merely postpones complete desegrega­
tion to provide time for the solution of varied administrative 
problems without impairment or denial of adequate educa­
tional opportunities to both races during the period of 
transition.

Memorandum Opinion of the Court



55a

Accordingly, the judgment to be entered pursuant to 
this memorandum will provide as follows:

(a) That Paragraphs 1, 2, 3, 4 and 5 of the proposed 
plan are approved;

(b) That Paragraph 6 of the proposed plan is dis­
approved;

(c) That the Board of Education shall submit to the 
Court not later than December 31, 1957, a report set­
ting forth a complete plan to abolish segregation in all 
of the remaining grades of the City school system, in­
cluding a time schedule therefor;

(d) That upon the filing of such report the plaintiffs 
shall have a period of twenty days thereafter within 
which to file objections thereto;

(e) That if objections are not filed to the report with­
in said period the report shall be automatically ap­
proved ;

(f) That if objections are filed to the report within 
said period a hearing shall be held thereon before the 
Court upon five days’ written notice by the plaintiffs 
to the defendants, with the burden resting upon the de­
fendants to establish that the plan is adequate to meet 
the constitutional principles declared in the two Brown 
opinions;

(g) That the rights of the plaintiffs and others 
similarly situated to attend the public schools of the 
City of Nashville without discrimination on account of 
race are recognized and declared, but that the issuance 
of an injunction is withheld pending the filing of the 
report provided for in Paragraph (c) above and the

Memorandum Opinion of the Court



56a

action of the Court upon any objections which may be 
made thereto; and

(h) That jurisdiction of the action is retained during 
the period of transition.

In addition to a form of judgment the parties will also 
submit to the Court proposed findings of fact and conclu­
sions of law to implement this memorandum.

W m . E. M iller  
United States District Judge

Memorandum Opinion of the Court



57a

Findings and Conclusions
Entered February 20, 1957

F in d in g s  op F act

1. Plaintiffs, except as specified in Paragraph 3 hereof, 
are Negroes who are citizens of the United States and are 
residents of and domiciled in the City of Nashville, Ten­
nessee.

2. Adult plaintiffs are either parents or guardians of 
infant plaintiffs; and all infant plaintiffs (except Willie 
Dean Coleman who graduated from high school in June 
1956) are presently attending public schools operated by the 
City of Nashville.

3. Plaintiffs Robert W. Rempfer and Mrs. Gertrude 
Fleming Rempfer, are white persons and are the parents of 
Jean Rempfer and Richard F. Rempfer, who are infants 
presently attending public schools operated by the City of 
Nashville.

4. Defendants include the members of the Board of Edu­
cation of the City of Nashville and the Superintendent of 
Schools of the City of Nashville, said defendants being the 
administrative officers having general supervision and con­
trol of the public schools of Nashville.

5. Defendants, other than those specified in Paragraph 4, 
are principals of particular public schools of Nashville.

6. At the beginning of the school year 1955-56, in late 
August or early September 1955, infant plaintiffs sought 
admission to particular public schools maintained and 
operated by the City of Nashville.



58a

7. Infant plaintiffs satisfied academic requirements for 
admission to the public schools in which they sought to en­
roll and said schools were most proximate in distance to the 
residences of the respective plaintiffs seeking admission 
thereto.

8. The schools to which infant plaintiffs who are Negroes 
sought admission were schools which were then and are still 
operated on a segregated basis for white students; and the 
schools to which infant plaintiffs who are white children 
sought admission were schools which were then operated on 
a segregated basis for Negro students.

9. Infant plaintiffs were refused admission to the schools 
of their choice; and they were required, if they chose to 
attend public schools, which they did choose to do, to attend 
different public schools which were operated on a segregated 
basis for students of their own race.

10. The school system of Nashville has been developed, 
built and operated for almost one hundred years in com­
pliance with the principle of segregation, expressly written 
into the Constitution of Tennessee in 1870, and subsequently 
embodied in statutory provisions.

11. The school system of Nashville consists of forty-six 
schools, with a total enrollment of 27,595 students, of whom 
10,322 are Negro students and 17,273 are white students.

12. The Nashville school system employs a total of 1,057 
principals and teachers, of whom 702 are white persons and 
355 are Negroes.

13. The enrollment in the first grade of the Nashville 
school system is approximately 3,400 students, of whom ap­

Findings and Conclusions



59a

proximately 2,000 are white students and 1,400 Negro 
students.

14. Teachers employed for the first grade of the Nash­
ville school system number 115, of whom 73 are white per­
sons and 42 Negroes.

15. The enrollment in the first grade of the Nashville 
school system is twelve percent of the aggregate school 
population and is only two percent less than the aggregate 
school population of the senior high schools—grades ten to 
twelve, inclusive.

16. In so far as physical facilities are concerned, the 
public schools of Nashville operated for Negro students are 
substantially equal to the public schools of Nashville 
operated for white students.

17. In the public schools of Nashville there is no differ­
ence in the salary schedule of Negro teachers and white 
teachers.

18. During the past decade, capital expenditures for 
Negro schools in Nashville have been a greater proportion 
of total capital expenditures than average daily attendance 
of Negro students has been of total average daily attend­
ance.

19. Immediately after the decision of the Supreme Court 
in Brown v. Board of Education, 349 U. S. 294, on May 
31, 1955, the Board of Education of the City of Nashville 
began an intensive study to determine the methods to be 
followed in the City school system to effectuate the con­
stitutional principles declared by the Supreme Court.

Findings and Conclusions



60a

20. Such study by the Board included investigation of 
the program of other cities in the matter of desegregation, 
an analysis and review of pertinent books and periodicals, 
attendance by its representatives at work shops and other 
group meetings, and the exchange of views between its 
members and others invited to meet with its committee.

21. From the outset the Board of Education frankly and 
openly recognized its obligation to maintain the school 
system of Nashville upon a racially non-discriminatory 
basis.

22. Said Board of Education has endeavored by its care­
ful investigation and study of the question to find a solution 
which would accomplish the transition of an entire school 
system as soon as reasonably practicable consistent with the 
public interest and the efficient operation of the schools.

23. The public schools of Nashville are operated on the 
basis of an entire school year as the unit of operations, as 
distinguished from the semester or term basis.

24. Desegregation will confront the Board of Education 
of Nashville with numerous administrative problems, in­
cluding increased difficulty in procuring and retaining 
teachers, teaching adjustments required because of differ­
ences in achievement levels of students among Negro and 
white children, problems arising from a liberalized student 
transfer system supplanting a strict transfer system, as 
well as other problems inherent in accomplishing a change 
so profound and far-reaching in its effects.

25. The school authorities are acting in good faith and 
have carried the burden of showing that more time is neces-

Findings and Conclusions



61a

sary to comply with the decision of the Supreme Court in the 
Brown case.

26. It is the considered opinion of the school authorities, 
after mature deliberation, that the change from a system of 
segregated schools should be upon a gradual or step-by-step 
basis; that an abrupt change in all the city schools would 
be inconsistent with the public interest and with the efficient 
functioning of the school system itself; and that the soundest 
approach to the problem is to begin with desegregation in 
the first grade and to make plans for the future based upon 
the experience thus gained.

27. At the hearing, the Board of Education submitted its 
plan, adopted on October 29, 1956, which is as follows:

1. Compulsory segregation based upon race is abolished 
in Grade One of the elementary schools of the City of 
Nashville for the scholastic year beginning in Septem­
ber, 1957.

2. A plan of school zoning or districting based upon loca­
tion of school buildings and the latest scholastic cen­
sus without reference to race will be established for 
the administration of the first grade and of other 
grades as hereafter desegregated.

3. Every student entering the first grade will be per­
mitted to attend the school designated for the zone in 
which he or she resides, subject to regulations that 
may be necessary in particular instances.

4. Applications for transfer of first grade students from 
the school of their zone to another school will be given 
careful consideration and will be granted when made 
in writing by parents or guardians or those acting in

Findings and Conclusions



62a

the position of parents, when good cause therefor is 
shown and when transfer is practicable, consistent 
with sound school administration.

5. The following will be regarded as some of the valid 
conditions to support application for transfer:
(a) When a white student would otherwise be re­

quired to attend a school previously serving 
colored students only.

(b) When a colored student would otherwise be re­
quired to attend a school previously serving 
white students only.

(c) When a student would otherwise be required to 
attend a school where the majority of students in 
that school or in his or her grade are of a differ­
ent race.

6. The Instruction Committee is directed to continue its 
study of the problem and to recommend by Decem­
ber 31, 1957, the time of and the number of grades 
to be included in the next step to be taken in fur­
ther abolishing compulsory segregation.

28. Whether the plan proposed by the Board is the best 
one which could be devised is a matter of dispute in the 
testimony; the views of the school authorities being sup­
ported by the testimony of expert witnesses and the op­
posing views on behalf of plaintiffs being supported by 
other experts.

Findings and Conclusions

Conclusions of L aw

1. The Court has jurisdiction of the parties and the sub­
ject matter of this action. Title 28 U.S.C.A., Sections 
2201 and 1343.



63a

2. This suit arises under the Constitution and laws of 
the United States and seeks redress for the deprivation of 
civil rights guaranteed by the Fourteenth Amendment. 
Title 42 U.S.C.A., Sections 1983 and 1985.

3. This action is properly brought as a class action under 
Rule 23 (a) of the Federal Rules of Civil Procedure. Title 
28 U.S.C.A.

4. In passing upon the adequacy of the plan submitted 
by the Nashville Board of Education for abolishing segre­
gation in its public schools, the Court must give effect to 
the implementing opinion in the second Brown case, Brown 
v. Board of Education, 349 U. S. 294, 99 L. Ed. 1083, and 
is to be guided by equitable principles.

5. Primary responsibility for assessing the problems 
involved rests upon the local school authorities and the func­
tion of the courts is strictly judicial in character, i.e., to 
determine first, whether the action of school authorities 
constitutes good faith implementation of governing con­
stitutional principles, secondly, whether the school authori­
ties have made a prompt and reasonable start toward full 
compliance, and third, whether the school authorities have 
carried the burden to establish that more time is neces­
sary in the public interest, consistent with good faith com­
pliance at the earliest practicable date, to carry out the rul­
ing in an effective manner.

6. It is not the duty of the Court to devise a plan of 
desegregation nor to substitute its judgment in matters of 
school administration for that of the constituted school au­
thorities.

Findings and Conclusions



Findings and Conclusions

1. The provisions of the plan proposed by the Nashville 
Board of Education, except Paragraph 6 thereof, constitute 
a prompt and reasonable first step and are not violative of 
any constitutional provisions.

8. Paragraph 6 of the proposed plan is contrary to the 
mandate of the Supreme Court in the Brown case that com­
pulsory segregation shall be abolished with all deliberate 
speed.

Judge



65a

Judgment
(Entered February 20,1957)

This cause came on to be heard on November 13 and 14, 
1956 upon the entire record, upon oral testimony without 
the intervention of a jury, and upon briefs and argument 
of counsel, pursuant to which the Court, on January 21, 
1957, filed its Memorandum and has this day filed Findings 
of Facts and Conclusions of Law, all of which are herein 
incorporated by reference.

It is, therefore, Obdebed, A djudged  and D ecreed  as fol­
lows:

1. That Paragraphs 1, 2, 3, 4 and 5 of the proposed 
plan are approved;

2. That Paragraph 6 of the proposed plan is disap­
proved ;

3. That the Board of Education shall submit to the 
Court not later than December 31, 1957, a report setting 
forth a complete plan to abolish segregation in all of the 
remaining grades of the City school system, including a 
time schedule therefor;

4. That upon the filing of such report the plaintiffs shall 
have a period of twenty days thereafter within which to 
file objections thereto;

5. That if objections are not filed to the report within 
said period the report shall be automatically approved;

6. That if objections are filed to the report within said 
period a hearing shall be held thereon before the Court 
upon five days’ written notice by the plaintiffs to the defen-



66a

Judgment

dants, with the burden resting upon the defendants to estab­
lish that the plan is adequate to meet the constitutional 
principles declared in the two Brown opinions;

7. That the rights of the plaintiffs and others similarly 
situated to attend the public schools of the City of Nash­
ville without discrimination on account of race are recog­
nized and declared, but that the issuance of an injunction 
is withheld pending the filing of the report provided for 
in Paragraph 3 above and the action of the Court upon any 
objections which may be made thereto; and

8. That jurisdiction of the action is retained during the 
period of transition.

W il l ia m  E .  M iller  
Judge

Approved as to Form:
Z. A lexander  L ooby 
A von N. W il l ia m s , J b . 

Attorneys for Plaintiffs
B eber  B oult  
E d w in  P .  H u n t  

Attorneys for Defendants

February 20, 1957.



67a

M il l e r , District Judge.
As the Court intimated a moment ago, it feels strongly 

that the question which has been presented here should be 
passed upon with all possible dispatch since the school year 
is about to begin and since the school board is under an 
order from this Court to carry out a plan of integration in 
compliance with the decisions of the Supreme Court of the 
United States. The timing of the plan is an essential part 
of it.

The question presented by the motion to file the supple­
mental answer and counterclaim is not new to the Court, 
as it has been considered by the Court since the motion 
was filed a week ago. Knowing that this hearing was to 
arise, the Court asked for the file in the case, and read the 
proposed supplemental answer and counterclaim, and im­
mediately began an investigation of the legal questions 
involved, taking that course because of the public interest 
in the matter and because of the importance of the time 
element. I feel that I am as ready to pass upon the ques­
tions presented today as I will ever be.

I have been greatly assisted by the able arguments which 
have been made here on behalf of the various parties, the 
movants who seek to file this supplemental answer, the 
attorneys for the original plaintiffs, the attorneys for the 
School Preference Committee, and the attorneys for the 
State of Tennessee. The arguments have been sincerely 
and capably made and presented, and have brought to the 
attention of the Court the issues in a forcible and thorough 
manner.

The pleading in this case, as already stated, is a motion 
by which the School Board of Nashville, being the defen­

The Court’s Statement Delivered From the Bench,
September 6, 1957



68a

dants in the action, asks the permission of the Court to 
file a supplemental answer and counterclaim which, in turn, 
would ask the Court to declare the rights of the school 
board under a certain act of the 1957 Legislature of Ten­
nessee, being Chapter 11 of the Public Acts of 1957, known 
as the School Preference Law.

The supplemental answer and counterclaim would call 
upon the Court to determine in effect and substance (a) the 
validity of the statute, (b) whether or not it is in conflict 
with the opinions of the Supreme Court of the United 
States, (c) whether or not it is in conflict with the orders 
of the Court heretofore entered in this cause, and (d) just 
what rights and privileges the school board possesses under 
the statute. In other words, the pleading is in the nature of 
a request for a declaratory judgment, declaring the rights 
of the parties, as indeed is the nature of the entire suit 
itself, the original complaint having been filed in this action 
as a declaratory judgment action.

A brief word ought to be said, it seems to me, about the 
history of this litigation. The action wTas filed, as already 
pointed out, by certain parents of colored children and 
later by parents of certain white children of the City of 
Nashville, to have their rights declared under the decisions 
of the Supreme Court of the United States enunciating the 
doctrine that racial segregation in public education is 
unconstitutional and disapproving the “separate but equal” 
doctrine of Plessy v. Ferguson which was decided, I believe, 
in 1896 or thereabouts.

The school board filed an answer to the complaint in 
which it in effect, if not in so many words, conceded the 
unconstitutionality of the segregation laws of the State of 
Tennessee.

The Court’s Statement Delivered From the Bench,
September 6, 1957



69a

The matter first came before a three-judge court, con­
vened in view of the nature of the relief sought by the 
original complaint. At that time the defendants made a 
motion for a continuance of the case on the ground that 
they had not had sufficient time to formulate a plan to carry 
out the decisions of the Supreme Court. That application 
for a continuance was extensively argued before the three- 
judge court and resulted in an order being entered to the 
effect that the school board had taken prompt steps in an 
effort to formulate a plan, that it needed more time to 
complete the formulation of the plan, and granting a con­
tinuance of the case as requested by the school board.

Thereafter, the three-judge court was dissolved, since it 
appeared that no constitutional question was involved in 
the case in view of the concession made by the school board 
that the segregation laws of Tennessee must necessarily 
yield to the principles declared by the Supreme Court, 
that is, to the paramount authority of federal law.

The case was called on the docket when the court regu­
larly convened at the October 1956 term, and at that time 
a motion was made by the school board to further postpone 
the case until after the meeting of the 1957 legislature of 
Tennessee on the assumption that the legislature would 
presumably pass some kind of legislation which might enter 
into the matter and have a bearing upon the kind of plan 
which the school board would submit to the Court.

That application was denied by the Court, and the case 
was set for hearing in November of 1956. It was heard at 
the time set. Testimony was taken from witnesses on both 
sides of the controversy, extensive arguments were made, 
and elaborate briefs were filed by both parties, the Court 
taking the case under advisement and holding it for some

The Court’s Statement Delivered From the Bench,
September 6, 1957



70a

several weeks in order to give the issues mature and de­
liberate consideration.

The crucial question at that time was whether or not a 
gradual plan of integration would meet the constitutional 
tests laid down by the Supreme Court, more specifically 
whether or not a gradual plan of integration would be con­
stitutional which contemplated as a first step desegregation 
only in the first grade, and thereafter desegregation of the 
remaining grades as might in the future be recommended 
by the instruction committee of the school board.

After giving the case what the Court believed was its 
very best effort, it was able to conclude that the plan was 
valid insofar as it proceeded on the basic principle that 
gradual desegregation was permissible and insofar as it 
contemplated desegregating the first grade in 1957. The 
Court believed that that was a substantial step, that the 
issue must be looked upon as presenting a local problem 
peculiar to the City of Nashville, about which the school 
board would have more knowledge than any other agency, 
certainly more knowledge than the Court itself could pos­
sibly have. Viewed in that light, the Court felt that the de­
cision of the school board to desegregate the first grade as 
the first step should be respected and that the plan to 
that extent should be approved. However, the Court was 
unable to see that the plan was valid or constitutional 
insofar as it deferred all action with respect to remaining 
grades and only provided for further study to be made by 
the instruction committee with no particular obligation to 
submit any particular plan at any particular time; and 
consequently, that portion of the plan was disapproved, 
and the school board was requested to submit by December 
31,1957, a plan which would abolish compulsory segregation

The Court’s Statement Delivered From the Bench,
September 6, 1957



71a

in. the remaining grades of the school system together with 
a time schedule therefor.

The result so reached by the Court was strenuously re­
sisted by the plaintiffs in the case, the plaintiffs taking the 
position that the plan presented was no plan at all, that 
it wTas not substantial, that it was not a prompt and reason­
able start as required by the Supreme Court, and that 
since the school board had had ample time to study the 
matter and had not presented a substantial plan, the entire 
plan should be disapproved and all of the schools of Nash­
ville required to desegregate simultaneously and immedi­
ately. That was the position of the plaintiffs in the case, 
but (as stated) the Court believed that the school board of 
Nashville from the very outset had acted in the utmost good 
faith to meet a very serious problem and to solve a problem 
having obviously many complications.

Now, after the Court so decided, the legislature of Ten­
nessee in 1957 passed the law which is before us here today, 
the pertinent part of which reads as follows, omitting the 
caption of the act:

“Section 1. Be it Enacted by the General Assembly 
of the State of Tennessee, That boards of education of 
counties, cities and special school districts in this state 
are authorized to provide separate schools for white 
and negro children whose parents, legal custodians or 
guardians voluntarily elect that such children attend 
school with members of their own race.”

That act was passed in January of 1957, and the mo­
tion in this case to be permitted to file the supplemental 
answer and counterclaim to have rights declared under the 
act, was not filed until just recently, many months after 
the passage of the act.

The Court’s Statement Delivered From the Bench,
September 6, 1957



72a

In the meantime, however, the school board was met with 
a petition signed by thousands of citizens and parents of 
Nashville, requesting that the school board invoke the pro­
visions of the School Preference Act of Tennessee, or at 
least take steps to have the act brought to the attention of 
the Court in order that it could be passed upon, and the 
rights of the school board declared.

It is in response to that petition, as I understand it, that 
this motion is filed by the school board to ask for instruc­
tions from the Court.

At the outset, I want to make it clear that I think that 
the School Preference Committee has acted in a perfectly 
normal and legal manner and in the true American way to 
bring the question to the Court’s attention. It has not 
sought to resort to any kind of violence or to defy the au­
thority of the law but rather to petition, as it has a legal 
right to do, under our constitution, the school board, and 
to make its wishes known; and the Court feels that the 
School Preference Committee is to be commended for the 
manner in which it has handled the cause which it repre­
sents. Also, the Court does not feel that it would be possible 
to say that the school board was negligent or did not act 
with due diligence or that the school board did not act in 
good faith in not bringing this matter to the attention of 
the Court, sooner that it did, because I am confident that 
the members of the school board felt and probably their 
attorneys felt that the matter had already been passed 
upon by the Court, its judgment had been entered, and that 
the School Preference Law could not enter into the picture 
at all, but that the order of the Court would have to be car­
ried out; and therefore no action was taken until the peti­
tion was filed by the interested citizens. So I do not find in

The Court’s Statement Delivered From the Bench,
September 6, 1957



73a

the case that the school board has acted in bad faith. On the 
contrary, I think it has acted in good faith from the very 
outset.

I fully appreciate the fact that the school board is met 
with a very serious problem, one that has many complica­
tions, and no doubt involving many pressures; and the 
Court is gratified to see the firm way that it has gone about 
the discharge of its duties under the difficult circumstances 
which sometimes have prevailed. But the school board, 
just like this Court, is met with the duty to comply with the 
law of the land.

As already stated, the motion necessarily presents to 
the Court the question of whether or not this act of the 
Tennessee Legislature, Chapter 11 of the Acts of 1957, is a 
constitutional enactment. If it is on its face in conflict with 
the doctrine enunciated by the Supreme Court in the two 
Brown opinions, necessarily it must give way because of 
the Supremacy Clause of the federal constitution.

Various arguments have been presented here to the Court 
in an effort to sustain the validity of the act. It is argued 
by the school board and their attorneys, first, that the act 
should be sustained because it involves a principle of 
voluntary action which was in effect approved by a three- 
judge court in the case of Briggs v. Elliott, cited by this 
Court in its prior memorandum. It is further argued that 
the act is one which simply allows the parents of both races 
a choice or an alternative to send their children to schools 
of their own race or to schools of a mixed race, and that 
it does not involve enforced or compulsory segregation.

Furthermore, it is argued that the act applies only to 
school systems and not to individual schools, presumably 
that argument meaning that it would be possible under the

The Court’s Statement Delivered From the Bench,
September 6, 1957



74a

act to set up one or more segregated schools so long as the 
entire system itself did not discriminate on account of race.

Another argument is that the principles declared by the 
Supreme Court of the United States apply only to units of 
government and not to individual citizens, and that the act 
of the Tennessee Legislature now under consideration 
confers upon the citizens themselves the right of preference 
or choice.

The arguments of the School Preference Committee are 
somewhat the same but with particular stress upon the right 
of freedom of choice, the right to be free from compulsion 
or restraint, it being argued generally that such freedom 
is a fundamental part of our law or a fundamental concept 
in our system of government, that this act seeks to give 
effect to that principle and, therefore, should be sustained.

The State of Tennessee makes the argument that the con­
stitutionality of the statute is not presented to the Court 
at this time and will not arise until the school board actu­
ally presents a plan which would set forth in what way the 
school board intends to use the School Preference Law; 
in other words, that the constitutionality of the act at this 
time is premature and should not be passed upon or deter­
mined by the Court until such time as the school board does 
present a plan which contemplates the use of the School 
Preference Law in some way or another. Furthermore, 
the State says that in any event this Court should not 
declare the act unconstitutional but, on the contrary, is 
required to convene a three-judge court before the act 
could be so declared.

After careful consideration of the arguments, all of which 
(I might say) the Court itself anticipated before they were 
presented here today, the Court is of the opinion that the

The Court’s Statement Delivered From the Bench,
September 6, 1957



75a

Tennessee Public Act of 1957, Chapter 11, is on its face 
antagonistic to the principles declared by the Supreme 
Court in the two Brown cases and is, therefore, unconstitu­
tional.

Referring to the two Brown cases and reading from the 
headnotes, we find in the first Brown case the following:

“Segregation of white and Negro children in the 
public schools of a state solely on the basis of race, 
pursuant to state laws permitting or requiring such 
segregation, denies to Negro children the equal pro­
tection of the laws guaranteed by the Fourteenth 
Amendment—even though the physical facilities and 
other ‘tangible’ factors of white and Negro schools may 
be equal.”

In the second Brown opinion, the following appears in 
the headnote:

“Racial discrimination in public education is uncon­
stitutional,” citing the first Brown case, “and all pro­
visions of federal, state, or local law requiring or per­
mitting such discrimination must yield to this prin­
ciple.”

Taking the Act of 1957, Chapter 11, and laying it along­
side those declarations by the Supreme Court of the United 
States, it is manifest that the state statute is unconstitu­
tional, for it says in so many words that boards of educa­
tion of counties, cities, and school districts in this state are 
authorized (which is another way of saying are per­
mitted”) to provide separate schools for white and Negro 
children whose parents, legal custodians, or guardians 
voluntarily elect that such children attend schools with

The Court’s Statement Delivered From the Bench,
September 6, 1957



76a

members of their own race. In other words, the act would 
directly authorize the school board of the City of Nashville 
to take a census and then to set up separate white schools 
and separate schools for colored children, whose parents so 
elected.

After those schools were so set up, they would not only 
be separate schools, but they would be separated because 
of race and for no other reason. In addition, the separation, 
once made, would be compulsory. In other words, no col­
ored student thereafter would have a right to attend a 
school so designated as a white school regardless of the 
inconvenience involved or any other factor. The colored 
student would be denied the right to attend that school for 
white children solely because of his race, and the same 
thing, of course, would apply the other way. So the Court 
sees no alternative but to say that the act does not comply 
with the constitutional test that discrimination in public 
education because of race is abolished.

The arguments made to the contrary, to the effect that 
the act contemplates voluntary action cannot prevail. The 
transfer system which the Court approved in its memo­
randum opinion heretofore rendered, giving the colored 
students and the white students an equal right to transfer 
from one school to another, was a limited right, and the 
Court felt that it wras reasonable under the circumstances 
and could be sustained. There was no compulsion connected 
with it, but the present act is a compulsory act in that it 
authorizes separate schools for the races from which mem­
bers of the other race are excluded by law.

To the argument that it applies only to school systems 
and not to individual schools there are two answers. In 
the first place, I see no basis for saying that the doctrine 
declared by the Supreme Court applies only to school sys-

The Court’s Statement Delivered From the Bench,
September 6, 1957



77a

terns and not to individual schools. I think, on the con­
trary, that the Supreme Court principle applies to all 
schools, in other words, that discrimination in public edu­
cation on account of race is prohibited.

In the second place, the argument is not sound because 
the act of the Tennessee Legislature applies to school 
systems as a whole. It does not say anything about in­
dividual schools. It applies to the entire system and gives 
the school board a right to take a census or a vote and 
determine the preference of all parents in the entire system, 
and then to set up segregated schools and thereafter to 
maintain them in that way.

The argument that the act applies to individual citizens 
and not to units of government is clearly unsound for the 
act specifically confers upon state agencies the authority to 
set up and maintain schools on a segregated basis. The 
school authorities are to determine the wishes of indi­
viduals only to the extent necessary to decide whether there 
shall be separate schools and, if so, how many, etc.

The further argument that the act is merely one which 
involves the principle of voluntary choice is, of course, an 
oversimplification of the act and of the problem presented. 
It does have a voluntary element in it in that it permits 
or contemplates as a preliminary step that the preferences 
of the parents will be ascertained. But after preferences 
are once ascertained and the schools established, then this 
act says, in effect and in substance, that those schools shall 
be compulsorily maintained thereafter as separate and 
segregated schools. That is the way the Court construes the 
act.

Of course, it is carrying the argument too far to say that 
no restraint can be placed upon citizens in connection with 
education and other matters. We all know that compulsion

The Court’s Statement Delivered From the Bench,
September 6, 1957



78a

is an essential part of government. There are many laws 
that we do not like that we have to comply with. There 
are many people who do not like the ruling of the Supreme 
Court, but nevertheless it is the law of the land, and the 
duty of this Court to apply that law is clear and unrnis- 
takeable.

The argument that a three-judge court should be con­
vened: As I see it, the requirement of a three-judge court 
does not apply to this case for two reasons: First, this act 
is patently and manifestly unconstitutional on its face. It 
so clearly conflicts with the Supreme Court decisions that 
it does not present a substantial federal question, and this 
Court therefore under the decisions has the right as a 
single court or judge to refuse to enforce rights under it 
without convening a three-judge court. Secondly, the stat­
ute requiring a three-judge court does not apply to a situa­
tion of this kind where the board of education in a case 
which has already been tried by a single judge is applying 
to that judge for instructions in carrying out its duties and 
as to what it shall do to comply with an order which the 
Court has already entered. In other words, what this Court 
is doing is merely enforcing its own order which it has 
already decided as a single judge and (by admission of the 
defendants) rightly decided as a single judge and not as 
a three-judge court. The application to this Court is not 
for an injunction to enjoin state action but a request for 
the Court to modify its order already entered. So, for that 
further reason, I do not believe that the requirement of a 
three-judge court applies in this instance.

As a practical matter, if a three-judge court should be 
convened in this case, it would be possible for the Court 
to refuse to vacate its order as to the first grade and to

The Court’s Statement Delivered From the Bench,
September 6, 1957



79a

allow integration in tire first grade to proceed, and we will, 
therefore, assume that it would cause no delay mso ar as 
the first grade is concerned to convene a three-judge cour_
But it must he remembered that the prior order of this 
Court also required the hoard of education o su mi 
plan hy December 31, 1957, for abolishing compulsory seg­
regation in all of the remaining grades of the system. _ 

Clearly, the board of education, if this state statute i 
not passed upon and a three-judge court 18 ^
not be expected to take any steps to formulate a plan for 
the other grades until the three-judge «onr does meet a d 
does decide the case. All lawyers know the difficulty 
convening a three-judge court, that is, the time which is 
required in doing so, having the court appointed and[ get­
ting it together. As a practical matter, if this Court shou 
undertake to convene a three-judge court, it would probably 
be long after December 31, 1957, before the court could 
act which would mean that the order of the Court here­
tofore entered, requiring the submission of a further plan 
would have to be vacated. Even if the Court could convene 
a three-judge court within a month from now or six weeks 
f c l  BOW, there would be that much time wasted m the 
formulation of this further plan by the school board, tim 
which it needs to study this serious problem.

The position of the State’s attorneys, as friends of the 
Court that the constitutional question is premature has 
been considered, but as I view the case a decision on the 
validity of the state law is directly presented and should be 
decided without delay. To overrule the motion for pie- 
maturity would leave the school board at sea to decide t 
“  estion for itself and would probably result m the submis­
sion of a plan geared to the School Preference Law. This m

The Court’s Statement Delivered From the Bench,
September 6, 1957



80a

turn would require its disapproval by the Court and hence 
further unnecessary delay in accomplishing desegregation 
in Nashville and compliance with the Supreme Court’s 
ruling.

Therefore, the Court directs that an order be entered in 
this case, denying the motion to be permitted to file the 
supplemental answer and counterclaim.

The Court’s Statement Delivered From the Bench,
September 6, 1957



81a

Order
(Entered September 23,1957)

This cause came on to be heard on September 6, 1957 
before the Honorable William E. Miller, Judge, upon mo­
tion by defendants for leave to file Supplemental Answer 
and Counter-Claim and to set the same for hearing, and 
upon arguments in open Court by attorneys for defendants 
(movants), attorney for plaintiffs, attorneys for the State 
of Tennessee appearing as amicus curiae in support of the 
constitutionality of Chapter 11 of the Public Acts of Ten­
nessee for 1957, and attorneys for the Parents Preference 
Committee as amicus curiae, the Court is of the opinion 
for reasons set forth in oral opinion which has been tran­
scribed as “Statement from the Bench” and which is hereby 
ordered filed and made a part of the record, that said 
motion is not well taken.

It is accordingly Ordered, A djudged  and D ecreed  that 
the motion for leave to file Supplemental Answer and 
Counter-Claim be and the same is hereby denied.

To the action of the Court defendants escepted on their 
own behalf, and, at the request of the Attorney General 
of the State of Tennessee, also on behalf of said State 
appearing as amicus curiae, and by request on behalf of the 
Parents Preference Committee appearing as amicus curiae.

Enter :
(s )  W m . E. M iller  

United States District Judge
Attest: A True Copy

J o h n  0. A nderson , Clerk
U. S. District Court
Middle District of Tennessee
By P ra n k  W illia m s  D.C.

(Seal)



82a

Transcript of Testimony of January 28, 1958

w  *vr w  *Jv "Tr

W illia m  H . Oliv er , Superintendent of Schools, called 
as a witness in behalf of defendants, first duly sworn, 
testified as follows:

Direct Examination by Mr. Hunt:
 ̂ ^  ̂ ^

[5] Q. That plan contemplated a liberal transfer policy, 
did it not! A. Yes, sir.

Q. Who administered that transfer policy under the 
supervision of the Board! A. I administered the transfer 
problem. The—The [6] superintendent assigned to me 
that duty, to administer the transfers.

Q. How many pupils, either exactly or approximately, 
enrolled in the first grade in September 1957! A. All to­
gether!

Q. The total number, yes. A. 3367, I believe was the 
number on roll as of October 4th. And that is approxi­
mately correct.

Q. Of those 3367, how many or approximately how many 
were Negroes and how many were white students! A. 
There were 1400 first-grade students, approximately 1400.

Q. 1400 that were what! I mean what race! A. Negro 
students.

Q. And the balance then would be white students! A. 
That is correct.

Q. Mr. Oliver, in formulating your zoning plans, how 
many white students or white pupils eligible for the first 
grade were there in a zone where the elementary school 
was a school that had previously been segregated as an 
all-white school! A. About 55.

Q. And those 55 were eligible to attend the school in



83a

their zone or they were eligible to seek transfers? [7] A. 
(Interrupting) That is correct.

Q. Were they not? A. That is correct. They had a 
choice.

Q. How many of those 55 did seek transfers? A. All 55 
of them.

Q. Were those transfers granted or denied? A. They 
were all granted.

Q. They were all granted? A. Yes, sir.
Q. Then, how many Negro pupils were there who lived 

in zones and were eligible to attend a previously segregated 
white school? A. Well, so far as I could say, 115. We 
had estimated that there would be about 127 on the basis 
of census figures, but when they enrolled in school, there 
were only 115 who enrolled, and I—I assumed that was 
the number. About 115, I ’d say.

Q. Approximately 115. Of the 115 Negroes who were 
eligible to attend a previously segregated white school, how 
many of those sought transfers back to other schools? A. 
One hundred and five, I believe.

Q. One hundred and five? A. Yes sir.
Q. Were those transfers granted or denied? [8] A. They 

were all granted.
Q. They were all granted? A. Yes, sir.
Q. Did any of the 105 who transferred seek to be re­

transferred back to the school of their zone? A. Yes, sir. 
Three or four of them did. Yes, sir.

Q. Were those transfers requested by parents or by 
other persons or by them jointly? Tell something of those 
re-transfer requests. A. Well, as I recall, I didn’t have a 
written request from any parent, but some of the parents 
came to see me with their children and some other adults 
who were more or less counseling the parents. One parent 
called me by telephone. I don’t believe he came to see

William H. Oliver—for Defendants—Direct



84a

me. But the requests for re-transfer were made, I would 
say, by the parents in consultation with some of their 
friends or counselors.

Q. Were the requests for re-transfer granted or were 
they denied? A. They were denied.

Q. In summary, you granted all original transfer re­
quests and denied re-transfer requests. Is that a correct 
statement? A. That is correct. Yes, sir.

* # # # #
Cross Examination by Mr. Looby:

[16] Q. Mr. Oliver, I think I understood you to have 
said that there were some students on the first-grade level 
that have asked to be transferred or re-transferred to 
integrated schools and were refused? A. I said that some 
of the students who had requested and been given transfers 
to (we will say the Negro schools) the schools in which 
the other students were Negroes asked for re-transfer, and 
those requests for re-transfer were denied. That is what I 
said.

Q. The requests for transfer were to the so-called inte­
grated schools? A. That is correct.

[17] Q. And they were refused by you? A. That is 
correct.

Q. Why? A. Well, because I didn’t think they had suffi­
cient reasons for asking for the transfers. Furthermore, 
I felt in some cases they were—they really didn’t want the 
transfers, that they were influenced by somebody else. 
I talked with the parents. I talked with their advocates, 
shall we say? I talked with one or two of the children 
The children didn’t want to be transferred. The parents 
were a little uncertain, some of them, and—I—I just didn’t 
think they had sufficient reasons.

William H. Oliver—for Defendants—Cross



85a

Q. But they were living sufficiently close to the requested 
school so as to justify a transfer on grounds of nearness. 
Isn’t that true! A. I presume that they were. However, 
they hadn’t moved. They—They hadn’t gotten any closer 
to the school they wanted to get into. They were still living 
at the same place.

Q. But they were living closer to the school to which 
they asked for a transfer than they were to the school in 
which they were! A. Well, I wouldn’t say they were liv­
ing closer to it, hut they were living in that zone.

[18] Q. I see. A. And, generally speaking, I would 
assume they did live closer to it.

Q. In a number of cases, the white students who wanted 
to transfer were granted without exception their requests 
for transfer! A. All the white and all the Negro were 
granted without exception.

Q. Well, those you were just talking about, they were 
the exceptions, weren’t they! A. They were—No. They 
had asked for transfers and had been given transfers. 
Then, when they asked for re-transfers, those were denied. 
There is nothing particularly unusual about that. We have 
many requests for transfer which we don’t grant.

Q. You say these cases in which re-transfers were re­
quested, that you talked to the children! A. In some cases, 
yes, and the children were with the parent.

Q. And your decision was predicated upon the statement 
of the first-grade students! A. Not altogether.

Q. Well, at least in part! A. Well, I was possibly 
influenced somewhat by the [19] feelings of the child.

Q. Were you influenced by your own feeling that you 
prefer that they not be re-transferred to these integrated 
schools! A. Well, I had a feeling that if the child didn’t 
want to be re-transferred, I ought to sort of consider that. 
But the parent was there. I ’ll tell you. The parent was

William H. Oliver—for Defendants—Cross



86a

there, and the child was there, and some other folks were 
there; and sometimes the parents impressed me as not 
really wanting what they were asking for. I think they 
were influenced by somebody else, and I figured I couldn’t 
afford to just change a student in and out and in and out 
every time somebody changed his mind. I did everything 
I could to give the parents a good opportunity to decide 
whether they wanted to leave the student in this zone or 
transfer him without any intimidation, without any pres­
sure from anybody. As far as I could I tried to let each 
parent decide what he thought was best for his own student. 
Then when they made their decision, I thought it was best 
for them to stick to it unless they had better reasons than 
any of them had for asking for a re-transfer.

Q. As a matter of fact, Mr. Oliver, you were influenced 
by your own preference that they not transfer to these 
integrated schools'? A. I  don’t think so, Mr. Looby. I 
really tried to give the parent an opportunity to make his 
own decision, but after he had made it, I—I thought he 
ought to stick to it.

# # #  *  *

[25] Q. You are familiar then with the geographical 
living [26] conditions with respect to the races? You know 
that the races are somewhat segregated in their residential 
areas? A. Somewhat, yes.

Q. And the school zoning is predicated upon residential 
location? A. Primarily, yes.

Q. So that in a school zone, even if you had complete 
desegregation predicated upon residential areas, you would 
have little or no problem, would you? A. Well, I wouldn’t 
say I wouldn’t have any problem, but I would say that the 
figures in the first grade are—give a pretty good picture of 
what the whole situation would be. Fourteen hundred—

William H. Oliver—for Defendants—Cross



87a

1400 Negro first-grade students are enrolled, and of those 
1400, only about 115 live in the zones where they would 
have gone to school with the white students. Do I make 
myself clear!

Q. Yes, I think you do. Now, following that same pat­
tern, if all complete desegregation is ordered or adopted 
by the Board, you would have little or no administrative 
problem because of your residential zoning. Isn’t that 
true! A. Well, I would say that there wouldn’t be large 
numbers where they would be mixed, not large numbers. 
There would be—I don’t know whether you would call them 
administrative problems, but I think there would be a lot 
of problems.

[27] There were last fall with these first graders. I 
think we would have the same problems we had last fall 
greatly magnified. That is my opinion.

Q. And those problems you had last fall were controlled 
by the Police Department and law-enforcement agencies, 
weren’t they! A. That’s correct.

# # # *

William H. Oliver—for Defendants—Cross

*



88a

(Entered February 18, 1958)

[842] The complaint was tiled September 23, 1955, as a 
class action, by negro children eligible to attend the public 
schools of Nashville, Tennessee, by their parents as next 
friends, to have declared their rights to attend the public 
schools without discrimination on account of race and for 
an injunction restraining such discrimination. Named as 
defendants were the members of the Board of Education 
and the Superintendent of Schools of the City, in addition 
to principals of particular public schools. Additional par­
ties were added by amendment to the complaint but with­
out changing the nature of the cause of action or of the 
relief sought.

[843] By their answer to the complaint the defendants 
conceded, in view of the decisions of the Supreme Court, 
the unenforceability of the school segregation law's of 
Tennessee and acknowledged their eventual obligation to 
operate the schools of the City of Nashville in compliance 
with the constitutional principles therein declared. How­
ever, the position was taken that the defendants should be 
allowed time to solve various administrative problems and 
that the transition to a racially non-discriminatory system 
should not be accomplished immediately but on a gradual 
basis.

Pursuant to the prayer of the complaint, a three-judge 
District Court was convened and upon a hearing at the 
March 1956 term, that Court granted the defendants’ mo­
tion for a continuance of the case to the October 1956 
term. In granting the continuance the Court specifically 
noted that the Board of Education at an early date had 
announced that it would comply with the ruling of the 
Supreme Court in integrating the public schools of Nash-

Opinion



89a

ville, that it had proceeded promptly to take steps toward 
that end, and that it was acting in good faith and with 
appropriate dispatch in awaiting the taking of the school 
census and giving careful consideration to all factors in­
volved, so as to arrive at a workable plan of integration, 
“which appears to be a reasonable start toward full com­
pliance with the May 17, 1954 ruling of the Supreme 
Court.” In view of the defendants’ concession that Tennes­
see’s school segregation laws were invalid, the three-judge 
court was dissolved and the case remanded to a single 
judge court. 1 Race Rel. L. Rep. 519 (1956).

[844] At the October 1956 term the Board of Education 
submitted a plan of desegregation, providing for the elimi­
nation of compulsory segregation in the first grade begin­
ning with the 1957-1958 school year, for a voluntary right 
of transfer on the basis of the racial composition of the 
school attended, and directing its Instruction Committee 
to make further studies and to recommend by December 
31, 1957, “the time of and the number of grades to be 
included in the next step to be taken in the further abolish­
ing of compulsory segregation.” After a full hearing upon 
the plan the Court on January 21, 1957, by a memorandum 
opinion, approved the plan in part as constituting a 
prompt and reasonable start toward complete desegrega­
tion but directed the Board to submit not later than De­
cember 31, 1957, “a report setting forth a complete plan 
to abolish segregation in all of the remaining grades of 
the city school system, including a time schedule therefor.” 
2 Race Rel. L. Rep. 21 (1957).

On January 9, 1957, the Governor of Tennessee ap­
peared before a joint session of the General Assembly to 
propose five bills permitting local authorities to act with 
respect to questions of racial integration in the public 
schools. On January 25, 1957, the bills were finally ap-

Opinion



90a

proved by the General Assembly and, as enacted, included: 
(1) legislation authorizing the establishment of separate 
schools for pupils whose parents or guardians voluntarily 
elect that they attend schools only with members of their 
own race, generally referred to as [845] the School Pref­
erence Law, (2) a Pupil Assignment Act to provide for 
the assignment of pupils to public schools by county or 
city boards of education, (3) an amendment to the present 
law authorizing the transfer of pupils between school 
systems, (4) authorization for the joint operation of school 
facilities, and (5) an amendatory bill dealing with trans­
portation of pupils. 2 Race. Eel. L. Rep. 215 (1957).

Shortly before the beginning of the 1957-1958 school 
year, the Board of Education, acting in response to a peti­
tion which had been filed with it by a citizens committee, 
filed a motion with the Court requesting permission to file 
a supplemental answer and counterclaim to ascertain its 
authority under and the validity of the School Preference 
LawT, Chapter 11 of the Public Acts of 1957, authorizing 
Boards of Education of cities and counties to provide 
separate schools for white and negro children, whose 
parents, legal custodians or guardians voluntarily elect 
that such children attend school with members of their 
own race. On September 6, 1957, after a hearing, the 
Court held that the School Preference Law was on its face 
antagonistic to the principles declared by the Supreme 
Court in the two Brown cases and, therefore, unconsti­
tutional. 2 Race Rel. L. Rep. 970 (1957). Accordingly, 
an order was entered denying the motion for leave to file 
the supplemental answer and counterclaim.

The Board of Education on December 6, 1957, filed its 
report, setting forth what is described as “a complete plan 
to [846] abolish segregation in all grades of the City

Opinion



91a

School System,” in compliance with the prior order of the 
Court requiring it to submit such a plan not later than 
December 31, 1957. The plaintiffs have filed objections to 
the plan, principally upon the ground that it does not 
comply with constitutional requirements, and one question 
presently before the Court is whether the plan should be 
approved.

Before discussing that question, however, it is necessary 
to consider a motion of the defendants, filed on January 
20, 1958, to dismiss the action, such motion, the objections 
to the School Board’s plan for desegregation, and all re­
lated questions having been heard by the Court on January 
28, 1958. The issues have been fully briefed and orally 
argued by the parties to the action, and in addition the 
Court has had the benefit of elaborate briefs submitted as 
amicus curiae by attorneys for the School Preference Com­
mittee, a local group sponsoring and supporting the pro­
posed plan, and on behalf of the Attorney General of the 
State as amicus curiae.

The motion to dismiss the action is based upon the pro­
visions of the Pupil Assignment Act, referred to above, 
Chapter 13 of the Tennessee Public Acts of 1957. It is 
argued on behalf of the Board of Education that the Act 
provides the plaintiffs with an adequate administrative 
remedy to obtain admission or transfer to particular 
schools and that they should be required to exhaust such 
remedy before resorting to a court for relief, particularly 
before resorting to a Federal Court [847] for an injunction. 
In support of this argument, it is insisted that this Court 
has already declared the rights of the plaintiffs and others 
similarly situated to attend the public schools of Nashville 
without discrimination on account of race and that it is, 
therefore, not necessary for the Court longer to retain

Opinion



92a

jurisdiction since the only remaining problem is the assign­
ment of individual students to particular schools, a matter 
now governed by the Pupil Assignment Act. To support 
its contention as to the validity of the Pupil Assignment 
Act, the Board of Education relies upon Carson v. Board 
of Education of McDowell County, 4 Cir., 227 P. 2d 789, 
and Carson v. War lick, 4 Cir., 238 F. 2d 724, certiorari 
denied 353 U. S. 910, in which the Fourth Circuit Court 
of Appeals held that the North Carolina Pupil Enrollment 
Act was not unconstitutional on its face, and that negro 
children denied admission to schools would first be required 
to exhaust the administrative remedies provided for by 
the Act before being entitled to declaratory or injunctive 
relief in a Federal Court with respect to their right to 
attend school. The standards provided for in the North 
Carolina Act required that the enrollment be made “so as 
to provide for the orderly and efficient administration of 
such public schools, the effective instruction of the pupils 
therein enrolled, and the health, safety, and general wel­
fare of such pupils.” The Act further provided for appli­
cation to and prompt hearing by the Board in the case of 
any child whose admission to any public school within 
the county or city had been denied, with right of appeal 
from an adverse ruling to the courts.

[848] However, notwithstanding the apparent scope and 
generality of the rulings of the Fourth Circuit in the two 
cases just cited, the Court is unable to reach the conclusion 
on the facts of the instant ease that the action should be 
dismissed and the plaintiffs remitted to a so-called adminis­
trative remedy, with the implied invitation to return to the 
Federal Court if that remedy is exhausted without obtain­
ing satisfactory results. This is true because the Court is 
of the opinion that the administrative remedy under the

Opinion



93a

Act in question would not be an adequate remedy. In this 
connection, it must be recalled that the relief sought by the 
complaint is not merely to obtain assignment to particular 
schools but in addition to have a system of compulsory 
segregation declared unconstitutional and an injunction 
granted restraining the Board of Education and other 
school authorities from continuing the practice and custom 
of maintaining and operating the schools of the city upon 
a racially discriminatory basis. While it is true that by 
its order entered pursuant to its memorandum of January 
21, 1957, this Court “recognized and declared” the rights 
of the plaintiffs and others similarly situated to attend the 
public schools of the City of Nashville without discrimina­
tion on account of race, it was specifically provided that 
“the issuance of an injunction is withheld pending the 
filing of a report” with respect to complete desegregation 
and the action of the Court upon any objections thereto. 
By the same order jurisdiction of the action was retained 
“during the period of transition.” The effect of the order 
was therefore not to direct the immediate discontinuance 
of the [849] practice of compulsory segregation in the 
public schools, but on the contrary, to permit its continu­
ance during a gradual period of transition in keeping with 
what the Court believed was the true meaning of the second 
Brown opinion of the Supreme Court. Brown v. Board of 
Education, 349 U. S. 294, 99 L. Ed. 1083. Thus the argu­
ment of defendants that the case is now moot is not sup­
ported by the record, for the primary purpose of the 
complaint to end racial discrimination in the public school 
system has not been accomplished.

Clearly the principal reason why the administrative 
remedy under the Act is inadequate is that the administra­
tive agency would be in the instant case, the Board of Edu­

Opinion



94a

cation of the City of Nashville. That agency, according 
to the record in this case, has never abandoned a policy 
of compulsory segregation in the public schools, other 
than the first grade as provided for by its plan which was 
heretofore approved in part by the Court. To require 
the plaintiffs to go before a board committed in advance 
to a continuance of compulsory segregation would be to 
require them to perform a futile act or to pursue a remedy 
which would have no reasonable prospect of success.

That the Board of Education is in fact committed to 
such a policy is the inescapable conclusion from the posi­
tion which it has consistently taken from the outset of the 
litigation. In its first application to the Court for a con­
tinuance, the Board insisted that it should be allowed to 
effect a transition [850] to a racially non-discriminatory 
system on a gradual basis, and it therefore requested a 
continuance of the case to permit it to make a further 
study and to formulate a workable plan of integration. 
The first plan submitted proposed to abolish compulsory 
segregation in the first grade only and to refer the prob­
lem of further integration to its Instruction Committee for 
additional study and a later recommendation. Its next 
appeal to the Court was to have its rights declared under 
the Tennessee School Preference Law which would have 
allowed the Board to establish and maintain segregated 
schools in accordance with the wishes of school parents. 
And finally, the Board has presently before the Court a 
plan similar to the provisions of the School Preference 
Law authorizing it to maintain and operate both segre­
gated and integrated schools dependent upon the prefer­
ences of school patrons. Notwithstanding the good faith 
of the Board of Education in its efforts to meet a grave 
problem, the Court would indeed be “closing its eyes to

Opinion



95a

the obvious” if it should not conclude that the Board is 
presently committed to compulsory segregation in the 
public schools other than in grade one. Nor has the Court 
been given any assurance that this fixed practice and 
policy of the Board will be discontinued in the future.

The inadequacy of the administrative remedy proposed 
by the defendants is emphasized when the present segre­
gation policy of the Board of Education is considered in 
the light of the criteria and factors prescribed by the Pupil 
Assignment Act to determine pupil assignments. Thus by 
Section 2 of the Act [851] it is provided that the Board of 
Education may consider and base its decision on any one 
or more of a large number of factors, including “the effect 
of the enrolment on the welfare and best interests of such 
pupil and all other pupils in said school as w7ell as the 
effect on the efficiency of the operation of said school” ; 
. . . “the psychological qualifications of the pupil for the 
type of teaching and associations involved” ; . . . “the effect 
of admission of the pupil upon the academic program of 
other students in a particular school or facility thereof” ; 
. . . “the psychological effect upon the pupil of attendance 
at a particular school” ; . . . “the effect of any disparity 
between the physical and mental ages of any pupil to be 
enrolled, especially when contrasted with the average 
physical and mental ages of the group with which the 
pupil may be placed” ; . . . “the sociological, psychological, 
and like intangible social scientific factors as will prevent, 
as nearly as possible, a condition of socioeconomic class 
consciousness among the pupils” ; . . . “the possibility or 
threat of friction or disorder among pupils or others” ; 
. . . “the possibility of breaches of the peace or ill will or 
economic retaliation within the community” ; . . . “the home 
environment of the pupil” ; . . . “the maintenance or sever­

Opinion



96a

ance of established social and psychological relationships 
with other pupils and with teachers” ; . . . “the choice and 
interests of the pupil” ; . . . “the request or consent of 
parents or guardians and the reasons assigned therefor” ; 
. . . and “any and all other factors which the Board may 
consider pertinent, relevant [852] or material in their 
effect upon the welfare and best interest of the applicant, 
other pupils of the county, city, or special school district 
as a whole and the inhabitants of the county, city or special 
school district.”

Whether or not the Pupil Assignment Act is constitu­
tional (a question which is not decided), at least there can 
be no doubt that there is nothing in the language of the 
Act which would preclude a Board of Education from 
taking into account racial distinctions in making pupil as­
signments. Nor is there anything in the Act which is in 
any manner inconsistent with a continued policy of com­
pulsory racial segregation, with the result that the admin­
istrative remedy itself would not afford the plaintiffs in 
the instant case any opportunity or ground upon which to 
resist the fixed policy of the Board to operate the city’s 
schools on a compulsorily segregated basis.

It is recognized by the authorities that the necessity of 
pursuing an administrative remedy provided by state law 
before seeking injunctive relief in a Federal Court does 
not apply unless the administrative remedy is “adequate.” 
School Board of City of Newport News, Va. v. Adkins, 4 
Cir., 246 F. 2d 325; Gibson v. Board of Public Instruction 
of Dade County, Florida, 5 Cir., 246 F. 2d 913. In the 
Adkins case the Virginia Pupil Placement Act was de­
clared unconstitutional but the Court further found that 
the statute did not furnish an adequate remedy to the 
plaintiffs because “of the fixed [853] and definite policy 
of the school authorities with respect to segregation . . . ”

Opinion



97a

And in the Gibson case the Court of Appeals for the Fifth 
Circuit, in holding that the plaintiffs were not required 
to pursue administrative remedies under the Florida Pupil 
Assignment law, stated:

“Neither that nor any other law can justify a viola­
tion of the Constitution of the United States by the 
requirement of racial segregation in the public schools. 
So long as that requirement continues throughout the 
public school system of Dade County, it would be pre­
mature to consider the effect of the Florida laws as 
to the assignment of pupils to particular schools.”

Being of the opinion upon the facts here presented that 
the suggested administrative remedy is inadequate, and 
that the case is not moot, the motion of defendants to dis­
miss the action cannot prevail.

If the action is not dismissed, the Board then requests 
approval by the Court of its plan for desegregation filed 
with its report to the Court on December 6, 1957. The 
proposed plan is as follows:

P lan

1. No compulsory integration or segregation shall be 
required in any grade of the Nashville Public School 
System.

2. There shall be conducted annually a parents prefer­
ence census to determine which parents desire their 
children to attend school with members of their own 
race exclusively and which parents desire that their 
children attend school with the members of another 
race. Such preference shall be stated by parents or 
those standing in the position of parents, and if no

Opinion



98a

preference is indicated the child shall be assigned 
by the Board under rules in conformity with this plan.

[854] 3. Three groups of schools of equal standards, 
opportunity and facilities in accordance with the 
preferences indicated above shall be established in 
as nearly accessible and convenient locations as 
practicable:
a. Schools for Negro students whose parents prefer 

that their children attend school with members of 
their own race exclusively;

b. Schools for White students whose parents prefer 
that their children attend school with members 
of their own race exclusively;

c. Integrated schools for those students whose 
parents prefer that their children attend schools 
available to both Negro and White children.

4. Requests by parents for transfer of their children 
from one school to another shall be acted upon by the 
Board in accordance with existing laws.

5. All administrative details and procedures for the 
operation of this plan within the framewTork thereof 
shall be determined by the Superintendent of Nash­
ville City Schools under the direction of this Board.

The arguments advanced to support the constitutionality 
of the plan are practically the same as those advanced and 
considered by the Court in passing upon the School Prefer­
ence Law above referred to, inasmuch as there is no real 
or substantial difference between the plan and the pro­
visions of the Law which the Court found to be unconstitu­
tional on its face at the hearing on September 6, 1957. It

Opinion



99a

is true that the plan, unlike the School Preference Law, 
specifically provides that an annual census be taken to de­
termine the preferences of school parents, and that the 
Board is authorized, in addition to separate white and 
negro schools, to maintain integrated schools for children 
whose parents desire that their children attend such schools.
[855] However, these provisions were clearly implicit in 
the School Preference Law itself.

Upon further consideration, the Court finds no reason 
to alter its view that such a plan wholly fails to meet the 
test of constitutionality. It would sanction by law, if ap­
proved, the separation of schools in accordance with racial 
distinctions and once the schools were separated, negro 
children because of their race alone would be excluded by 
operation of law from schools designated for white chil­
dren only. The discrimination would not be removed simply 
by providing a third school or group of schools which 
could be attended by members of both the white and colored 
races. It is a mistaken interpretation of the segregation 
decisions of the Supreme Court to argue that the doctrine 
of those cases applies only to an entire school system and 
not to individual schools. The fundamental basis of the 
decisions is that members of the negro or minority race are 
denied the equal protection of the law if they are denied 
admission to public schools which they are otherwise 
qualified to attend solely upon grounds of their race. The 
discrimination is clearly not eliminated by maintaining and 
operating some schools in the system on a racially segre­
gated basis and others with the discrimination removed.

Another objectionable feature to the plan is that it does 
not offer in any realistic sense an alternative or choice to 
the members of the minority race. To hold out to them the
[856] right to attend schools with members of the white

Opinion



100a

Opinion

race if the members of that race consent is plainly such a 
dilution of the right itself as to rob it of meaning or sub­
stance. The right of negroes to attend the public schools 
without discrimination upon the ground of race cannot be 
made to depend upon the consent of the members of the 
majority race. That the proposal to establish a group of 
integrated schools is, as a practical matter, illusory and 
meaningless is clearly shown byr the testimony of the Super­
intendent of Schools. He stated, in substance, that if the 
census provided for in the plan should be taken, it would 
be doubtful that any substantial number of white parents 
would consent to have their children attend school with 
members of the colored race. In such circumstances, to 
approve the plan would be in effect to deny to the members 
of the colored race the protection of the Fourteenth Amend­
ment as construed by the Supreme Court, for they would 
be remitted solely to schools of their own race.

The case of Briggs v. Elliott, 132 F. Supp. 776 cannot 
by any reasonable interpretation be construed as authority 
for the plan presently proposed. The most that the Elliott 
case decided was that the Supreme Court decision in the 
Brown cases did not require integration but merely pro­
hibited segregation on account of race. On any fair ap­
praisal of the plan now under consideration it must be 
concluded that it would in fact require and give the sanction 
of the law to a continuation of compulsory segregation in 
public education.

[857] Despite the sincere and earnest arguments which 
have been advanced in support of the plan both by attorneys 
representing the school Board and attorneys representing 
the School Preference Committee, the Court is unable to 
find either that it is constitutional or that it is practically



101a

Opinion

feasible and workable. The plan must, therefore, be dis­
approved.

In this posture of the ease, the question remains whether 
an injunction should issue requiring desegregation in all 
of the remaining grades of the school system beginning 
with the next school term, or whether an injunction should 
be withheld pending the submission by the Board of an­
other plan which would offer a workable and legal solution 
to the problem of accomplishing a transition to a system 
having no racial discrimination. The first alternative is 
strongly urged upon the Court by the plaintiffs, with the 
Board of Education requesting further time to submit an­
other plan.

The Court is mindful of the fact that it has been approxi­
mately four years since the Supreme Court first declared 
invalid racial discrimination in public education, and that 
the plaintiffs are entitled to have their constitutional rights 
enforced without undue delay. Nevertheless, the record is 
replete with evidence that the problem with which the 
School Board is confronted is one of a grave and complex 
nature, the solution of which requires not only time but 
also patience and understanding on the part of the school 
authorities and on the part [858] of the members of both 
the white and colored races. The conditions in Nashville 
must be appraised and assessed primarily by the constituted 
school authorities. They are certain in their belief that 
the best interests of the entire school system require that 
integration not be accomplished in all grades simultaneously 
but rather in accordance with a gradual step-by-step plan. 
The Superintendent of Schools so testified at the last hear­
ing and there was similar evidence upon the hearing of the 
first plan. The Federal Courts cannot operate the public 
schools and should refrain from any interference with their



102a

Opinion

operation by the regular school authorities unless it is 
plainly necessary to intervene to protect constitutional 
rights. Notwithstanding the failure of the Board thus far 
to submit an acceptable plan, the Court is of the opinion 
that it should be accorded a further opportunity to study 
the problem and to present a plan for desegregating the 
remaining grades of the school system together with a time 
schedule therefor. However, in view of the history of the 
litigation as set forth in this opinion, and the delay since 
the applicable constitutional principles were first announced, 
it should be apparent that the School Board must adopt a 
substantial plan and one which contemplates elimination of 
racial discrimination throughout the school system with all 
deliberate speed.

An order will be passed to the Court carrying out the 
terms of this opinion, allowing the School Board until the 
7th day of April 1958 to file with the Court another plan, 
and [859] directing that a hearing be held thereon before 
this Court for approval or disapproval on the 14th day 
of April 1958.

/s /  W il l ia m  E. M illeb  
United States District Judge



103a

[979]
Order

(entered March 19,1958)

This cause came on to be heard on January 28, 1958 
before the Honorable William E. Miller, Judge, upon the 
entire record and especially upon the Plan filed by the 
defendants, Board of Education, on December 6, 1957, the 
Objections to said Plan filed by the plaintiffs, the Motion 
to Dismiss filed by said defendants on January 20, 1958, 
and Application for Injunction requiring desegregation in 
all of the remaining grades of the school system beginning 
with the next school term, the evidence heard in open 
Court, oral arguments and written briefs submitted by 
attorneys for the parties, attorneys for the State of Ten­
nessee as amicus curiae, and attorneys for the Parents 
Preference Committee as amicus curiae, from all of which 
the Court makes the findings of fact and conclusions of 
law contained in its Opinion filed on February 18, 1958, 
which Opinion is hereby made a part of the record and 
incorporated herein by reference as a part of this Order; 
and for the reasons stated in said Opinion, the Court finds 
and holds that the Motion to Dismiss should be denied, that 
the said Plan submitted should be disapproved, that is­
suance of an injunction should be withheld pending the 
submission by the Board of Education of another Plan 
in accordance with said Opinion of the Court, that the 
defendants, Board of [980] Education, should be allowed 
until April 7, 1958 to file another Plan and that there 
should be a hearing thereon on April 14, 1958.

It is accordingly Ordered, Adjudged and Decreed as 
follows:

1. That the Motion to Dismiss filed herein by defen­
dants, Board of Education, on January 20, 1958, be and 
the same is hereby denied.



104a

Order

2. That the Plan for desegregation filed herein by said 
defendants, Board of Education, with its report to the 
Court on December 6, 1957, be and the same is hereby 
disapproved.

3. That an injunction should be withheld pending the 
submission by the Board of Education of another Plan.

4. That said defendants, Board of Education, shall file 
with the Court, not later than the 7th day of April, 1958, 
another Plan for desegregating the remaining grades of 
the school system together with a time schedule therefor.

5. That a hearing on said last mentioned Plan be held 
before this Court for approval or disapproval on the 14th 
day of April 1958.

To the action of the Court in denying the Motion to 
Dismiss and in disapproving the Plan submitted, defen­
dants excepted. To the extent they are permitted by law 
to do so, the State of Tennessee and the Parents Prefer­
ence Committee, as amici curiae and not as parties to the 
action, also except.

A pproved  as to F orm :

, / s /  Z. A lexander  L ooby

/ s /  A von W illia m s

Attorneys f  or Plaintiffs

W m . E. M iller  
Judge



105a

Transcript of Testimony
(April 14,1958)

I n t h e  D istrict  C ourt of t h e  U n ited  S tates 
for t h e  M iddle D istrict  of T e n n e sse e

N a sh v ille  D iv isio n

Civil Action No. 2094

R obert W . K ell e y , e t  a l.

B oard of E ducation  of t h e  C ity  of 
N ashvil l e , T e n n e s s e e , e t  a l.

B e f o r e  :

T h e  H onorable W il l ia m  E. M il l e r , Judge of said Court, 
on the “Plan of the Board of Education” on April 14, 
1958, at Nashville, Tennessee.

A p p e a r a n c e s :
For the Plaintiffs:

Z. A lexander  L ooby, Esq.
A von W illia m s , Esq.
Attorneys at Law 
327 Charlotte Avenue 
Nashville, Tennessee

For the Defendants:
R eber  B o u lt , Esq.
E d w in  F. H u n t , Esq.
Attorneys at Law 
American Trust Building 
Nashville, Tennessee



106a

Colloquy

T r a n sc r ipt  op t h e  P roceedings

[3] (All parties announced ready.)
The Court: The matter is before the Court (as I under­

stand it) on the plan contained in a report which was 
filed on April 7, 1958, the plan of the Board of Education. 
I am ready at this time to hear any matters which the 
Board has to present in support of this plan.

Mr. Hunt: May it please the Court, in thinking about 
this matter, we concluded that we definitely would not go 
over the things that have heretofore been presented. How­
ever, in support of this plan, we will offer as witnesses the 
Superintendent of Schools, the acting Chairman of the 
School Board, the Principal of one of the schools. It will 
then be our hope that we will offer the former Superin­
tendent of Schools who indicated that he would be here 
as a witness if his health permitted. We will offer them 
and ask a few questions about the plan, and then turn 
them over for examination by adversary counsel.

The Court: That will be satisfactory.
Mr. Hunt: Their presentation, I might add, we antici­

pate will be brief. We are not going into any great detail.
The Court: All right.
[4] Mr. Hunt: The first witness will be Mr. Oliver, the 

Superintendent of Schools. He has not been sworn at this 
hearing. Of course, he was sworn at a former hearing.

The Court: Does any party request the rule on the 
witnesses?

Mr. Looby: We do not, if Your Honor please. We have 
filed objections to the plan.

The Court: You have filed objections? I have not seen 
those.

Mr. Looby: They were filed this morning.
Mr. Hunt: Do you want to present any matter in con­

nection with your objections?



107a

Mr. Looby: No more: than to say that if it becomes 
necessary after the witnesses for the defendant will we 
be heard?

The Court: Oh, yes.
Mr. Looby: We will ask the privilege to call witnesses. 
The Court: All right.
(The witnesses were sworn.)

W. H. Oliver—for Defendants—Direct

Mb . W. H. Oliv er , c a lle d  a s  a  w itn e s s  in  b e h a lf  o f  th e  
d e fe n d a n ts , b e in g  f i r s t  d u ly  sw o rn , te s tif ie d  a s  f o l lo w s :

[5] Direct Examination by Mr. Hunt:
Q. Is this Mr. W. H. Oliver? A. Yes, sir; William 

Henry Oliver.
Q. Mr. Oliver, you are at present the Superintendent 

of Schools of the City of Nashville? A. Yes, sir; I  am.
Q. And you were a witness in this case, I believe at 

the hearing in January. Is that correct? A. That’s cor­
rect.

Q. Since you have been Superintendent and Assistant 
Superintendent, have you met with the Board in its meet­
ings where the matter of complying with the Court order 
has been the subject of discussion? A. Yes, sir. I have 
met regularly with the Board since I became Assistant 
Superintendent last July the first.

Q. Now, I believe this matter that we are now con­
cerned with was the subject of discussion before one of 
the committees of the Board. What committee was that? 
A. The instruction committee.

Q. And did you meet with that committee in its de­
liberations considering this question? A. Yes, sir. I have 
met regularly with that committee also.



108a

[6] Q. You are familiar, Mr. Oliver, with the plan that 
has been filed with the Court? A. Yes, sir.

Mr. Hunt: I assume, if Your Honor please, that 
there is no technical need to identify and tender it 
to him as the plan. We will do that if the Court 
desires that he examine it and say that that is the 
plan adopted.

The Court: I  think that is all right.

By Mr. Hunt:

Q. Just read the plan, not the preliminary things that 
do not concern you, and tell whether or not that is the 
plan. A. (After reading from document handed witness 
by counsel) Yes, s ir; this is the plan.

Q. That is the plan that was adopted— A. (Interrupt­
ing) By the Board.

Q. (Continuing) —by the Board. Now, Mr. Oliver, 
state the substance of that plan. What does it provide 
for? A. Well, there are three essential provisions. One 
is that the abolishing of segregation by race in the public 
schools of Nashville will proceed one grade each year, the 
second grade in September 1958, the third grade in Sep­
tember of 1959, and so on until we have gone through 
the 12th.

The second provision is that the policies followed [7] 
with regard to the first grade with respect to zoning and 
matters of that kind will be continued.

And the third is that as the job of desegregation pro­
gresses it will be subject to review by the Court, direction 
from the Court, submission to the Court of any informa­
tion which circumstances may justify as we go along.

W. H. Oliver—for Defendants—Direct



109a

Q. Mr. Oliver, state whether or not before formulating 
that plan the Board sought the recommendation of the 
principals in the schools of Nashville! A. I don’t know 
that the— Well, yes, through the Superintendent the Board 
did.

Q. You sought the recommendation! A. Yes, sir.
Q. Now, tell how that was done. A. Well, I called all 

the principals together and told them that we had the job 
of making a plan for desegregating the remaining eleven 
grades, that I had a great deal of respect for their judg­
ment in the matter, that they were close to the matter, 
they were interested in the childern, and that I would like 
to know—I would like to have suggestions from them as 
to how—as to what would be the best plan.

Q. How were their suggestions received! Were they 
received orally! Were they received in response to a 
questionnaire! [8] Were they received by letters from 
them! How did the principals respond in giving their 
recommendations! A. Well, as I recall, it was this way: 
The principals themselves appointed a committee of them­
selves to draw up a sort of questionnaire which all of the 
principals were invited to answer but without signing. It 
was thought that a principal might come a little nearer 
to saying exactly what he thought if he were not asked 
to sign the statement. Also, it was desired that no princi­
pal be embarrassed in the matter. Of course, we had 
principals of both races. So the principals filled out these 
questionnaires.

Mr. Looby: If Your Honor please, I want to 
raise an objection to this line of testimony as to 
what the principals did and about being a coward 
enough not to sign their name or do anything but 
simply draw up the questionnaire; and, if Your

W. H. Oliver—for Defendants—Direct



110a

Honor please, it is totally irrelevant to the issues 
before the Court.

The Court: I think it would be pertinent to in­
quire into any procedure that the Board followed 
in adopting the plan. I think that is to be con­
sidered. Your objection goes to the weight of it 
and the value it might have rather than to the 
admissibility of it as I see it. I will allow him to 
answer it.

[9] By Mr. Hunt:

Q. All right. A. I am just trying to tell how it was 
done. Then these answered questionnaires were collected 
and submitted to the Superintendent that he might study 
them and use the information which they gave in advising 
the Instruction Committee.

Q. Did any or all of those recommendations propose a 
gradual handling of the problem? A. Yes, sir; practically 
all of them did. Not quite all of them. I believe there was 
one that advocated total and immediate desegregation, 
but the vast majority of them advocated a gradual plan, 
and several of them suggested the year-by-year plan.

Mr. Williams: May it please Your Honor, with 
reference to the objection which was made pre­
viously and Your Honor’s ruling on it, we submit 
that even if this evidence is heard as a matter of 
determining the way that the Board reached the 
conclusion, that still the testimony of the Superin­
tendent as to what was contained in the question­
naires is incompetent under the best evidence rule, 
that the questionnaires themselves would be the 
best evidence of that.

W. H. Oliver—for Defendants—Direct



111a

The Court: All right.
Mr. Hunt: May it please the Court, we are not

[10] offering this to prove as such the contents. 
We are offering it to prove how the Board acted 
and how it proceeded in the information that it 
sought to assemble with respect to the matter.

As a matter of fact, we have sent for those ques­
tionnaires so that if they wanted them filed in the 
record, they could be. We have sent for them, and 
at the appropriate time they will be produced.

Mr. Oliver was talking with me this morning, and 
I said, “Well, bring those things in.”

Actually, I think that is to clutter up the record 
with these recommendations.

The Court: When I overruled the objection a 
moment ago, what I had in mind was that you were 
offering evidence to show just what the Board did 
as a matter of fact as bearing on the question of 
good faith for one thing.

Mr. Hunt: Exactly.
The Court: To show that it acted deliberately 

and in an effort to obtain information from relevant 
sources. That is the reason I admitted it, not as 
evidence to prove whether this plan should be ap­
proved by the Court or disapproved, and it will 
not be considered in that way.

[11] Mr. Williams: I see.
The Court: If you have the questionnaires,

though, you might file them.
Mr. Hunt: I will do that. It may be in the 

interest of expedition that we will want to proceed 
with other witnesses because that information is 
being brought. Mr. Oliver has asked for it.

The Court: All right.

W. H. Oliver—for Defendants—Direct



112a

W. H. Oliver—for Defendants—Direct 

By Mr. Hunt:

Q. Now, Mr. Oliver, I believe you stated that among 
these unsigned recommendations of the principals, all 
except one recommended a gradual handling of the prob­
lem and one recommended immediate and total desegrega­
tion next fall. Am I correct there in what you said! A. 
Yes, sir. As I recall there was one, only one, which sug­
gested total and immediate desegregation. By immediate 
I mean in September 1958.

Q. Mr. Oliver, as the Superintendent of Schools, is it 
your opinion that the plan recommended is the best plan 
available? A. Yes, sir. It very definitely is.

Q. Will you state to the Court your reasons for hold­
ing that opinion? A. Well, I can’t do that in just a 
word or two. If I [12] talk too long, somebody can say 
so. That’s been a big question with me for a long time, 
one which I have asked and tried very much to answer 
and which I have answered in my own mind.

When you ask me why I think this plan is the best 
plan there is, I would say—I don’t know just how much 
to say or not to say. But right to the question, I ’d say 
in the first place I think this is the best plan because it 
would incur the least opposition, the smallest number 
and size of difficulties to deal with. Judging from past 
experience, there are difficulties encountered in this pro­
cess of desegregation.

And I would like to make this clear, too, if I may, that 
in speaking of this plan and in using such terms as 
“desegregation” I am speaking only of the attendance of 
students in the public schools of Nashville, Tennessee. I 
am not saying that this is the best plan for everywhere, 
but I am saying that in my opinion it is the best plan 
for us here in Nashville.



113a

Now, if I may say this, it’s a matter of record in this 
court, that we had considerable difficulty and confusion 
and disorder last fall in spite of the fact that we did every­
thing that we knew to do to avoid it. "VVe held advance 
registrations so that when the little first-graders regis­
tered, there wouldn’t be any upperclassmen or their parents
[13] there. We arranged so that the little Negro children 
and their parents would not have to go to a school where 
the majority of the folk were white to get their transfers. 
We made the same arrangement with regard to the white 
children who had to get transfers, and we— We did 
everything we knew to do, and in spite of everything we 
could do we lost above $70,000 worth of the Hattie Cotton 
building, and a great many little children whose first ex­
perience in school should have been one of security and 
harmony and joy found themselves faced with a situation 
where they were subjected to dread and fright and in 
many cases actual danger. I think that the effect of that 
sort of thing on a child is something that should be 
avoided.

We begged the reactionaries to stay away from the 
schools last fall, but they didn’t do it. And I think that 
the year-by-year plan (if I may call it that) will involve 
less of this damage to the children than any other plan 
which we could propose.

Another reason (I hope it’s a good reason) why I think 
that this is the best plan is that it gives a maximum of 
consideration for the will or the wishes of the majority 
of the citizens, the taxpayers, the parents; and I— I can’t 
help thinking that under a government such as ours, which 
is of and by and for the people, it’s in order.

[14] Of course, I know we must carry out the law, and I 
think this plan is perfectly in accord with every ruling the 
Supreme Court has made, otherwise I wouldn’t consider it

W. //. Oliver—for Defendants—Direct



114a

a proper plan; but still I think that it is in order to give 
as much consideration to the wishes of the people as is 
practical under the law, and our Board has tried very hard 
to respect the wishes of the people whom it represents and 
whom it serves.

There are a great many people in our community who are 
opposed to desegregation according to any plan. We can­
not go by their wishes but I think it’s practical and I think 
it’s wise to give some consideration to their wishes. I 
think they are entitled to consideration, and I believe that 
this year-by-year plan will come nearer being acceptable 
to the majority of the parents, the citizens, the taxpayers 
in Nashville, Tennessee, than any other plan would be.

Another reason why I think this is the best plan is that 
it doesn’t—it doesn’t rush an adjustment which at best is 
going to be a difficult adjustment in our community among 
the people and among the students.

Segregation by race in the public schools of Nashville 
(right or wrong) is a practice of long standing, and to 
change it goes counter to the feelings of a great many 
people. There are a lot of adjustments that must be made
[15] on the part of the Negro children (It’s something 
they’re not accustomed to), on the part of the white chil­
dren (It’s something they’re not accustomed to), on the part 
of parents, and on the part of teachers. I t’s something none 
of us are accustomed to.

It involves more difficulty in adjustment than someone 
just looking on from the sidelines would recognize or rea­
lize, and I firmly believe that this adjustment can be made 
with less friction, it can be made with less disadvantage 
to everybody concerned, it can be made more smoothly, it 
can be made with less difficulty psychologically, educa­
tionally, socially, and otherwise, if it is done slowly. This 
plan, of course, proposes that it be done slowly.

W. H. Oliver—for Defendants—Direct



115a

I think that to undertake to do it all at once would be a 
most unwise thing to do. I t’s not going to be easy if we do 
it a year at a time. If it can be accomplished peacefully 
in the twelve years, it will be a noteworthy accomplishment.

I think that this plan is the best plan for making the ad­
justments in the school, in the community, among the 
teachers, among the students, that could be proposed.

And another reason is that it will give us a more 
homogeneous grouping of students. At least, it will make 
possible a more homogeneous grouping of students. And I
[16] think that most educators feel that homogeneous group­
ing is wise as far as it is practical to practice it. We cannot 
always have students of just the same aptitude. We cannot 
always have students of just the same social background. 
We cannot always have students of just the same chrono­
logical age. We cannot always have students of just the 
same achievement level. But we’ll be further from having 
that if we desegregate fast, in my opinion. Now, the princi­
pal person whose welfare is to be considered in the matter 
of homogeneous grouping is the student.

Now, it may be that if we said, “We’ll desegregate the 
whole school system all at once,” it may be that not a 
large number of students would be involved, but you can’t 
assume that. There might be a large number of them in­
volved. And if there were, then you’d have students put 
into classes together who had a very different background 
in the community, in the home, in social life, and in the 
school; and you would have a situation—- If they all came 
in together, you would have a situation where there would 
be a group of students or (we will say) individual students 
competing with others at a disadvantage, and you’d have 
students who would have to be held back because of others 
who were not on the same achievement plane with them.

W. U. Oliver-—for Defendants—Direct



116a

I—I hope I make myself clear there. If homogeneous
[17] grouping has any value, then we can get the greatest 
value out of it by a gradual plan.

Now, I ’d like to give one other reason if I may. I think 
that it’s very important that we do all we can to preserve 
good relationships between the two races. We have the two 
races. There is— There’s no way around that. We have 
the two races. They— They are two races. I don’t suppose 
either race wants to be merged with the other. I assume that 
the white race wants to remain a white race and the Negro 
race wants to remain a Negro race as far as race is con­
cerned. The two races live together and work together in the 
same city and the same community. I t’s very important that 
there be between the two races and between individuals 
representing the two races a relationship of friendliness, co­
operation, and respect such as I think we have had in the 
past to a great degree and which I think has improved a 
great deal during the past twenty or thirty years.

Frankly, I think that the desegregation issue has 
threatened that relationship, made it in some cases a little 
more difficult to maintain, but we must maintain it some­
how ; and I believe that the gradual plan of putting students 
together in school will do more toward preserving proper 
relationship between the two races in our community than 
would any other kind of plan.

[18] Now, Mr. Attorney, those are my principal reasons, 
I would say, for thinking that this is the best plan. I  have 
left out a good bit. I hope I haven’t taken too much time in 
answering. I will be glad to answer any specific questions 
about it.

Q. I think you have covered my direct questions, Mr. 
Oliver.

W. H. Oliver—for Defendants—Direct



117a

Cross examination by Mr. Looby:
Q. Mr. Oliver, will you tell the Court your experience in 

desegregating schools in any community other than Nash­
ville1? A. Well, I don’t suppose I have had any experience 
in desegregating schools in any community other than Nash­
ville. I have made some observations elsewhere, but I 
haven’t had any experience except in Nashville.

Q. To what extent have you made any observations ? A. 
Well, I ’ve visited schools in Washington, D. C. I ’ve visited 
in Evanston, Illinois. I have made observations in Chicago 
and Indianapolis. Not to a very extensive degree, but I have 
made observations in all those places.

Q. Then, you also said that the majority of taxpayers 
in Nashville are opposed to this ruling. How many tax­
payers are there in Nashville? [19] A. I don’t know.

Q. How do you know then what is a majority? A. Well, 
if I—I would say that it’s not necessary to know the num­
ber in a group to know whether—what is a majority.

Q. How did you arrive at your conclusion that there was a 
majority of the taxpayers that were opposed? A. By read­
ing, by listening, by talking, by hearing a great deal.

Q. By reading what? A. By reading newspapers, by—
Q. (Interrupting) What newspapers? A. Well, the 

Nashville Tennessean and the Nashville Banner in particu­
lar.

Q. Can you tell me whereabouts in the Nashville Tennes­
sean have you found that and what issue? A. No, I don’t 
think I could. They have been many issues. I have talked 
with many, many people. I don’t think it matters how I came 
to my conclusion. That’s my opinion, Mr. Looby, and it may 
be open to be contested.

Q. We want to know whether your opinion is based upon 
the facts or if it’s wishful thinking. A. I wouldn’t say it

W. II. Oliver-—for Defendants—Cross



118a

was wishful thinking. I t’s based upon— I have had many 
contacts with many people in Nashville, [20] and my opin­
ion is that the majority of the taxpayers and parents of 
Nashville do not favor desegregation at all as a matter of 
fact, but I think also that this plan would be more ac­
ceptable to them than any other plan.

Q. But in your opinion, no plan at all (that is, no de­
segregation) would be preferable? A. I think that the 
majority of the people in Nashville would prefer that white 
children and Negro children attend school separately. I 
think that.

Q. And that is your opinion? A. That is my opinion?
Q. Yes. A. Well, frankly, I don’t think we are gaining 

anything educationally by putting them together. No, sir.
Q. So that it is— A. (Interrupting) But my opinion 

is not— Of course, I think that we must respect the Supreme 
Court’s decision. I don’t advocate ignoring that, of course.

Q. But regardless of what you think about that, you are 
giving your opinion as to desegregation under the question 
by Mr. Hunt, weren’t you? A. I don’t quite understand 
you.

Q. Under the question by Mr. Hunt you were giving your 
opinion of desegregation? [21] A. In Nashville, Tennes­
see?

Q. Yes. A. That’s right. I— Under Mr. Hunt’s ques­
tion I was giving my—I was not giving my opinion about 
desegregation in Nashville, Tennessee. I  was giving my 
opinion about this plan. Mr. Hunt did not ask me anything 
about what I thought of desegregation, generally speaking, 
in Nashville. I was talking about this plan which I think is 
the best plan.

Q. Enumerating the basis upon which you arrived at your 
ultimate decision, you spoke about the homogeneity of

W. E. Oliver-—for Defendants—Cross



119a

students. Are yon saying now that the difference in students 
is based on race! A. No, not exactly.

Q. So that homogeneity or lack of homogeneity has noth­
ing whatsoever to do with the races, has it! A. Well, I 
would say that race and the conditions under which the races 
live may have something to do with causing the differences. 
I wouldn’t—

Q. (Interrupting) Are you saying conditions under which 
the races live or conditions under which the people live!
A. Well, the races are people.

Q. And people are races, aren’t they! A. People are 
divided into races.

[22] Q. Now, when you talk, say, about economic condi­
tions, economic conditions affect people regardless of their 
race, don’t they! A. Economic conditions affect people 
regardless of their race!

Q. Yes. A. I suppose that is true.
Q. And so the sociological effect upon people does not 

—is not affected by race but is affected by the sociological 
environment and the like. That’s true, isn’t it! A. I ’m not 
sure.

Q. You are not sure? A. In the first place, I ’m not sure 
that I quite understand your question.

Q. All right. You talked about sociological reasons. I 
am asking you whether those sociological reasons don’t 
result the same without regard to race? A. Well, I ’d say 
there are certain sociological conditions which are appar­
ently more pronounced with one race than with another.

Q. And it is upon that basis and with that philosophy 
that you are performing your functions as Superintendent 
of Schools? A. I don’t see that that has much to do with 
my performing [23] my function as the Superintendent of 
Schools. As the Superintendent of Schools I must try to 
provide the best possible educational opportunities for all

W. H. Oliver—for Defendants—Cross



120a

the children regardless of race, regardless of economic or 
sociological situation.

Q. Now, let’s get back to that meeting with your prin­
cipals. You called the principals together, you said? A. 
That’s right.

Q. And that’s all the principals, colored and white? A. 
All the elementary principals, I believe. I don’t think I had 
the high-school principals in the meeting.

Q. You had all the principals of the elementary schools, 
both colored and white, meet together? A. Yes, sir.

Q. And you explained to them what you wanted? A. 
Well— Yes. I ’ll say it this way: I said about this to them: 
“You are close to the problem. You are interested in the 
children. We want to make the best plan. We respect your 
opinions in the matter, and we would like to know what you 
think would be the best plan for us to submit to the Court.” 
I was asking for help from them because I thought they 
were in pretty good position to have opinions as to what 
would be the best plan.

Q. Did you take into consideration then that their indi­
vidual interests may conflict with what you were seeking to 
[24] obtain? A. Well, not especially. I—-

Q. (Interrupting) Didn’t take that into consideration? 
A. (Continuing) —hardly think it did. It was not a matter 
of individual preference. It was a matter of professional 
judgment.

Q. Well, each had to exercise his individual judgment, 
didn’t he? A. That’s right, and I pooled—

Q. (Interrupting) And his economic interests would in­
fluence his judgment, wouldn’t they? A. I don’t think there 
would be so much difference in the economic interests of 
the elementary-school principals.

Q. I see. Was there any special reason why you re­
quested them not to sign their name to each individual

W. H. Oliver—for Defendants—Cross



121a

ballot? A. Yes. I— I thought that perhaps if a man were 
asked to sign it, he might not be quite so free to say exactly 
what he thought because there might be a possibility of his 
being different from someone else in opinion, and that might 
make him fear some embarrassment in the matter.

Q. You have individual reports from every principal in 
your office, haven’t you? A. I— You mean on that matter?

Q. On any matter. From the schools? [25] A. I wouldn’t 
say I have individual reports from the principals on every 
matter or any matter.

Q. You don’t have it? A. Well, I don’t know what you 
mean.

Q. Do you have anything in writing from the principals 
in your office? A. Regarding what?

Q. Regarding anything? A. Yes, regarding some things. 
There are routine reports which principals turn in and 
sign, such as fire-drill reports, attendance reports, and 
things of that sort; but this was an entirely different matter.

Q. I know that, but— How often are those reports made, 
any reports from the elementary principals to your office? 
A. Well, some of them are made every semester, some of 
them are made once a year, and some of them are made once 
a month.

Q. And those are part of your records? A. That is 
correct.

Q. So that it would be most easy to determine the sig­
nature of a—the writing of a principal in any of those 
blanks which you asked them to turn in? A. No, I don’t 
think so. It wasn’t required that they be written. They 
might have been typed. Probably some of [26] them were.

Q. And that— A. (Interrupting) I ’ll say— Excuse me.
Q. Go ahead. Finish your answer. A. No, there wasn’t. 

No, I couldn’t go through them all and say this belonged 
to this man, this belonged to this man, this belonged to 
this man, and so on; no. I can’t do that.

W. H. Oliver—for Defendants—Cross



122a

Q. Was the answer required of the principal to be turned 
in at the same time or at some later time! A, You mean— 
You mean was he supposed to fill out that questionnaire 
right then and there and turn it in or at a later time?

Q. Yes, sir. A. At a later time.
Q. I see. Now, was their reaction to that submitted to the 

Board? A. As I recall, it was submitted to the Instruction 
Committee but not to the Board because the Instruction 
Committee was charged with—with the job of proposing the 
plan or recommending a plan to the Board. Now, I don’t— 
I ’m not sure that I presented all the questionnaires to the 
Instruction Committee. Possibly I didn’t, but I carried to 
the Instruction Committee the impressions which I received, 
[27] the expressions of the elementary principals—of the 
elementary principals as something which we thought might 
help us in formulating a plan.

Q. What do you mean by “expressions?” A. I mean— 
I mean indication as to what they thought just as I stated 
a while ago, that the majority of them favored a gradual 
plan, that a very small number preferred an immediate 
plan. I believe there was one—I think there was only one 
who favored an immediate and complete plan. The majority 
of them wanted a gradual plan and I reported that to the 
Instruction Committee. By that— That’s what I mean by 
an expression from this—from the elementary principals. 
There was a sort of pooling of their opinions.

Q. And your Instruction Committee reported one plan 
to the Board, didn’t it? A. The Instruction Committee rec­
ommended a plan to the Board.

Q. And but one plan, and that’s the plan that was sub­
mitted to the Court? A. Well— Of course, you know 
that—

Q. (Interrupting) Answer that yes or no, Mr. Oliver, and 
then you can explain anything you want. A. No, I can’t

W. H. Oliver—for Defendants—-Cross



123a

answer that yes or no because I don’t know—I ’ll answer it, 
but if you will—if you will say [28] when, then I can answer 
it yes or no.

Q. I believe you say that you attended all of the meetings 
of the Instruction Committee as well as all of the meetings 
of the Board! A. Let me see if I can get this clear. You 
mean that since the last direction we had from the Court—•

Q. (Interrupting) Yes. A. (Continuing) —the Board 
submitted one plan. That’s what you mean, isn’t it?

Q. Yes. A. Then the answer is yes.
Q. Yes. A. I ’m sorry. I didn’t quite understand you.
Q. So that the Board had no other plan to consider ex­

cept this one that was submitted to the Court? A. Well, 
I wouldn’t say that. Members of the Board were sometimes 
invited to meet with the Instruction Committee while the 
Instruction Committee was considering plans. No, I 
wouldn’t say that the Board had no opportunity to consider 
another plan.

Q. I didn’t say that. A. The Board knew. Of course, 
the members of the Instruction Committee are members of 
the Board and on certain occasions, other members of the 
Board were invited to meet [29] with the Instruction Com­
mittee, and the Instruction Committee did consider other 
plans and the Board of Education was aware of that but 
the Instruction Committee finally recommended the plan 
which the Board is now presenting to the Court. That is 
the only plan which the Instruction Committee submitted 
finally to the Board.

Q. And the Board never considered any plan up until 
the Instruction Committee reported this plan? A. I would 
say officially—officially the Board was not in position to con­
sider a plan until the Instruction Committee presented a 
plan or recommended a plan, and the Instruction Commit­
tee recommended only one plan. So officially that, I suppose,

W. H. Oliver—for Defendants—Cross



124a

is the only plan which the Board considered because it is 
the only plan which was officially recommended to them.

Q. Mr. Oliver, prior to this question being brought before 
the Court did the Board consider homogeneity in placing 
its students where it had separate schools! A. Will you 
ask that question again please!

Q. Prior to this question being raised relative to segrega­
tion, did homogeneity constitute one of the bases upon 
which the Board placed students in the schools! A. Mr. 
Looby, I wouldn’t be in a position to say what the Board 
discussed officially really prior to the bringing up [30] of 
the question of desegregation because the question of de­
segregation before the Board is older than I am as Superin­
tendent, but I will say that the matter of homogeneous 
grouping is something which we have been dealing with in 
Nashville for a good many years. I t’s— It’s not a new 
matter at all. We have been dealing with it for a long time 
and wrestling with it, and we don’t know-— We don’t know 
what is the best thing to do. We have tried various plans 
of homogeneous grouping, and some schools do it more 
successfully than others. But if you are trying to find out 
now whether that is a new question which has arisen, it is 
not.

Q. It is not! A. That’s right.
Q. So that that question was with you before and is with 

you now and will be with you long after this question that 
we are talking about is settled! A. Yes. I would say that 
is true. The question of homogeneous grouping will—is 
one which will continue with us.

Q. And from your knowledge of the problems in the field 
of education, that remains in all school systems, whether 
integrated or not, doesn’t it? A. The question of homo­
geneous grouping is one with [31] which I would say— 
Well, I— I— Maybe I ’m about to cover too much territory.

W. //. Oliver—for Defendants—Cross



125a

I would say in a public-school system such as Nashville. 
Of course, they have school systems in which there are ad­
mitted homogeneous groupings in the country, but in a 
public school system such as Nashville, the problem of 
homogeneous grouping, taking into consideration several 
factors, several factors other than race— In fact, I wouldn’t 
consider that as the principal factor that I had in mind. 
It is a matter of—of background, a matter of aptitudes. 
I t’s a matter of achievement. But let me answer your 
question a little more directly and apologize for not being 
more direct.

Yes, in a school system such as that of Nashville, the 
matter of homogeneous grouping is a—is a question which 
will remain with us.

Q. Yes. Now, let’s get back to a question or two relative 
to disturbances which you emphasize occurred last fall. 
Do you contemplate a similar occurrence each year? A. 
Mr. Looby, it’s pretty difficult to know what to contemplate. 
We try to assume that there won’t be anything that the law- 
enforcement agencies available to us cannot handle. They 
handled it last fall, handled it pretty well, but in spite of 
their handling of it, a great many students were, I think, 
damaged by the disturbances which we had.

[32] Q. And do you think an annual disturbance of that 
nature for the next 12 years will be profitable? More so 
than to have it all over at once? A. Ask that again please, 
if you please.

Q. Do you think an annual disturbance that you say— 
You say that was a disturbance of the students, a psycho­
logical disturbance or whatever disturbance you call it. 
Do you think going through that every year for twelve 
years will be more profitable to students than getting it 
all over at one time? A. Well, I will say this, that if I 
thought that it would be the same every year, I think it

W. II. Oliver—for Defendants—Cross



126a

would be better to have it one time rather than eleven, 
but that is not the case. I think there is a certain amount, 
we might say, of reaction which we may expect, and the 
more people that are involved, the more of that we shall 
encounter. I t’s pretty difficult to cope with, and I think 
it would be better to scatter it out over a period of years. 
I think I can make myself clear by saying this:

One time I came in contact with a rabid dog, and I had 
to take rabies shots. It would have been possible to give 
me the whole dose at one time, but the reaction to the rabies 
vaccine is something, so it was given to me in fourteen 
instalments. And I think that this is somewhat the [33] 
same situation.

Q. You mean it’s just like rabies shots, ehf A. If I may 
explain it this way, I think there is a great deal of violent 
reaction and opposition we are going to encounter from the 
people in our community, and I think that if it is distributed 
over a period of years, we can take it better.

Q. Then your primary objection, if you perchance pro­
pose to interpret the action of the Board, is that there may 
be public disturbances, is one of your reasons for your 
objection to total desegregation1? A. If I understand you 
correctly, Mr. Looby, and I think I do, one reason why— 
In answering your question, yes. One reason why I think 
the year-by-year plan is best is that I think that there will 
be a good bit of reaction against it and opposition to it 
and that that reaction will be easier to deal with and will 
be less violent if it is distributed over a period of years. 
And the principal person I am pleading for there is the 
child himself.

I think that the material loss which we suffered last fall 
is small compared with the dread and fright and the dis­
turbance which was caused to our children and to the

W. II. Oliver—for Defendants—Cross



127a

principals and to the teachers. It was difficult to work, and 
a good many students stayed out for a week or two or 
[34] three, and there are probably a few still out today in 
so-called private schools of maybe questionable quality.

It is the impact of it all on education which I am trying 
to distribute because it will be less harmful in my opinion 
if it is distributed over a period of years than if it all 
comes at one time.

Is that a clear answer?
Q. My question was directed towards your opinion or 

rather how the public acceptance or public rejection af­
fected your plan? A. Well, I  think that one reason for 
favoring this plan is that it will be less objectionable to 
the people.

Q. That is one of your primary objections? A. I may 
have been a little too brief in answering that. Of course, 
what I ’m thinking about is not so much the objection of 
the people but the results of that objection on the work of 
the schools.

Q. Have you any of those children or the record of any 
of those children to show its effect upon the children or 
just your opinion? A. Well, I don’t know what kind of 
record you could make. Of course, we have attendance 
records to show how they were kept out of school.

Q. And that was during the first few days? [35] A. I 
beg your pardon?

Q. That was during the first few days? A. It was a 
little more than a few days. Some of it extended out over 
three or four weeks. Some of them— Some of them never 
came back but went to private schools, a small number of 
them.

Q. And there’s a number of them go to private schools all 
the time, aren’t there? A. Well, these wouldn’t have.

W. II, Oliver—for Defendants—Cross



128a

Q. What private schools are you referring to! A. Well, 
let’s see if I can name them. There are two. One of them 
was—• I ’m afraid I can’t give the names of them. They 
were schools— They were not regularly established private 
schools. I wouldn’t have objected to those, but they were 
private schools so-called set up just for the specific pur­
pose of taking care of children who didn’t want to go to 
the mixed schools.

Q. Did they meet the requirements of the public-school 
law! A. I assume that they did, some question maybe.

Q. You have no objection to children going to schools 
that meet the public-school requirement, do you! A. I 
have no objection to students going to a private school. 
I think that the private schools to which we are [36] gen­
erally accustomed provide good educational opportunities 
for children, but I have some doubt as to whether these 
did because in one of them, for instance, they had one 
teacher and they had students of about seven different 
grades. It was somewhat like the old one-room eight-grade 
school house which I think has generally been considered 
not as good as what we have now.

Q. What have you or the Board of Education done with 
respect to those children that are not attending public 
schools and not attending schools approved by the Board 
of Education or some accrediting agency! A. The Board 
of Education doesn’t approve the private schools in the 
city.

Q. I said “or some accrediting agency.” A. There is an 
accrediting agency which approves high schools.

Q. Mr. Oliver, let’s get right down to the meat of the 
question I ’m asking you. Has anything been done about 
those children not attending adequate public schooling! 
A. Well, we have got a list of their names and their ages

W. H. Oliver—for Defendants-—Cross



129a

and their addresses and their grades. We were not in posi­
tion to do anything about them except to leave them alone.

Q. I see. Well, isn’t it true that children who are not 
[37] attending public-—who are of public-school age and 
not attending public school, that their parents may be 
prosecuted? A. No. The law states that they must attend 
a school which meets in the daytime, and it is pretty indefi­
nite as to the requirements of that school. It is hard to 
say from the state requirements just what constitutes a 
school really.

Q. Those children weren’t denied admission to any school, 
were they? A. No. No. They were not denied admission 
to the public schools.

Q. And the public schools are now open to them? A. 
That is correct.

Mr. Looby: I believe that is all.
Mr. Hunt: That is all, Mr. Oliver, unless the Court 

has some question.
The Court: No, I don’t think of any at this time. 

I might later on.

Elmer Lee Pettit—for Defendants—Direct

E l m e r  L ee  P e t t it , c a lle d  a s  a  w itn e s s  in  b e h a lf  o f th e  
d e fe n d a n t, b e in g  f i r s t  d u ly  sw o rn , te s tif ie d  a s  f o l lo w s :

Direct Examination by Mr. Boult:
[38] Q. Mr. Pettit, will you please state your age and 

residence? A. 49 years of age; Nashville, Tennessee; 1915 
Tenth Avenue, North.

Q. I believe it can be stated that you are the acting 
Chairman of the School Board of the City of Nashville. Is 
that correct? A. That’s correct.



130a

Q. Will you state for the record why the Chairman is not 
here and really why you are acting as acting Chairman? 
A. Well, the Chairman is convalescing from a heart attack 
and for that reason I was elected Chairman pro tern.

Q. How long have you been a member of the School 
Board? A. Six years.

Q. How long have you been a member of the Instruc­
tion Committee? A. Six years.

Q. Are you at the present time Chairman of the Instruc­
tion Committee? A. Yes, sir.

Q. Mr. Pettit, referring to the matters which have de­
veloped under the authority of the Instruction Committee 
since the last hearing in this court in January, will you 
state whether or not the Instruction Committee has con­
tinued [39] its discussion and investigation of the problem 
of furnishing an additional and supplemental report to this 
Court upon the question of desegregation? A. The In­
struction Committee has met numerous times, and also we 
have invited—insisted that each Board member be at those 
meetings and especially when we knew that we would dis­
cuss the desegregation. Most members have attended those 
meetings and taken part in the discussion of those—of the 
plan.

Q. As a result of those discussions did the Instruction 
Committee prepare and submit to the Board a report 
recommending a plan of desegregation? A. Yes.

Q. Was that plan adopted by the Board? A. Yes.
Q. Can you identify the plan which has been filed here 

with the Court and which was identified by Mr. Oliver as 
being the plan submitted by the Instruction Committee with 
its recommendation and subsequently officially adopted by 
the Board? A. Yes.

Q. You have heard Mr. Oliver testify and he testified to

Elmer Lee Pettit—for Defendants■—Direct



131a

the essential components of that plan. They are correct, 
are they not? [40] A. Yes, sir.

Q. Of course, the plan speaks for itself as filed with the 
records of the Court. Mr. Pettit, do you have any children 
in the public schools of Nashville? A. Yes.

Q. How many do you have in the public schools of Nash­
ville and in what grades are they during the present school 
year? A. I have one daughter, a senior in high school, 
North High. I have a boy eight years in the second grade 
at Jones, and I have a boy, Jimmy, that’s in the first grade 
at Jones.

Q. Was Jones School one of the schools which was in­
volved in certain disturbances which are described as a 
part of the record in this case which occurred last August 
and September 1957 ? A. Yes, sir.

Q. Have your two boys continued to go to Jones School 
since that time? A. Yes, sir.

Q. You are then familiar with the occurrences which 
occurred last September and you had a personal interest 
in those occurrences because your two little boys were in 
that school? A. Yes.

[41] Q. Mr. Pettit, you then have been acting not only as 
a member of the School Board but your interests include 
those of a concerned parent, do they not? A. Yes.

Q. State to the Court, Mr. Pettit, why you individually 
and as acting - Chairman of the School Board feel that the 
plan which has been filed with this Court is the best plan 
for the City of Nashville in its public schools. A. Well, 
first after we had—- 1 might say that at all times we never 
refused any groux) of people or anyone that came to our 
Board meetings to offer anything on the subject. We didn’t 
turn down any x>erson.. We also never turned down anyone 
that came to the Instruction Committee to talk with us

Elmer Lee Pettit—for Defendants—Direct



132a

about it. We did not go out and invite special groups to 
come in, but we did— We listened to all, and we studied it. 
The— We came up with two different views. We had one 
view that—people that were very strong towards desegre­
gation. The other group were very bitterly opposed to 
desegregation. Those two groups of people made up—- 
They were the majority of the people that appeared before 
the Board. We had one group, only one group of parents 
that really represented the parents of the school children. 
Most of the others were organizations that were either 
sponsored, I ’d say, or more or less had outside interests 
that came into Nashville to try to [42] give us advice and 
professional and expert assistance, as they might call it, 
but each side claimed that they were experts, but they 
were so far apart that the Board decided the thing that we 
were concerned about was to—to obey the Court order and 
at the same time try to do what was best for the schools of 
Nashville with the main thing in mind was that our children 
who everybody had been forgetting are the ones that should 
be educated; and that’s the thing that we are concerned 
about, educating the children, and also we are concerned 
about obeying the laws of the land. And for that reason 
we, after talking with our supervisors and superintendent, 
that we thought the wisest plan was the gradual plan to 
go up one year at a time.

Q. Now, Mr. Pettit, state your opinion or reason, your 
judgment, why you feel that a one-year-at-a-time plan, the 
year-by-year plan as Mr. Oliver has referred to it, is pref­
erable to any other type of block plan or total desegre­
gation. A. Well, I think the— When we resolve one prob­
lem, it creates so many other problems that by doing it 
in the first grade— We— We had to— We didn’t have too 
much trouble in the class room. Of course, the teachers

Elmer Lee Pettit—for Defendants—Direct



133a

were—did have tension, I mean, but they were— The 
classes, most of them, had probably one colored in the class 
along with the white, [43] and the teacher was able to cope 
with it, and for that reason, the problems—our main prob­
lems were on the outside in this; but had we started at the 
other end, our problems would have been on the inside and 
outside, and then our educational system would have suf­
fered as far as the children were concerned. This way, I 
think we were able to still give our first-graders the— 
the education they deserved, maybe not as good as we 
should have, but it—the trouble was at a minimum inside 
the school.

Q. Can you state whether or not there is still— You have 
stated, I believe, that there is still some tension! A. There 
is. Naturally, the—the teacher in a new experience, she’s 
concerned. She doesn’t want to hurt the—the minority, 
the little colored boy in the class, and still she’s tense, 
afraid— She doesn’t want all the white parents jumping on 
her neck, and— So far, though, the teachers have been 
able to handle the—as far as I know, handle the situa­
tions, and we’ve had no trouble with that.

Q. In spite of the existence of tension, the size of the 
problem has been such that the teachers have been able to 
handle it! A. That’s right,

Q. Under the present one year. Is the fact that, you 
have in effect learned by doing on this one year going to 
be [44] of assistance in the year-by-year plan, step up year 
by year in your opinion! A. I think so. I think from the 
inside, in the school room, if they move up, they are already 
in the class and part of the class, and your problem won’t— 
won’t exist there as far as the educational— And, then, 
too, if their adjustment, their level, their achievement level, 
if there is a difference there, then the child— We still—

Elmer Lee Pettit—for Defendants—Direct



134a

Here in Nashville, if they don’t pass the grade, we still 
leave them; and for that reason, they—things will be ad­
justed that way regardless, and they will keep their level, 
achievement level as they go through school.

Q. They will have gone through the same educational 
experiences themselves, all from the first grade on up 
through the 12th grade year by year? A. That’s right.

Q. Now, Mr. Pettit, in order to make the record perfectly 
clear, is it or not true that the plan which was adopted 
by the Board was adopted with the Chairman absent on 
account of her health and one negative vote cast by a mem­
ber, Coyness L. Ennix? A. That’s right.

Q. Is that or not correct? A. Yes.
[45] Q. And all of the other votes of the Board were in 

favor of the plan which was filed with the Court? A. Yes.
Q. Is there anything else that you would like to say to 

the Court, Mr. Pettit, in connection with the present hear­
ing and the present plan? A. No, I don’t think there is 
anything else.

Mr. Boult: You may ask him.

Cross Examination by Mr. Williams:
Q. Mr. Pettit? That is correct, isn’t it? A. Yes, that’s 

right.
Q. You testified that you had a personal interest in this— 

A. That’s right.
Q. —because of your children having been involved in 

the desegregation situation last September? A. That’s 
right.

Q. Your children didn’t have any rocks or bricks thrown 
at them, did they? A. No, sir.

Q. They weren’t spit on? A. No, sir.

Elmer Lee Pettit—for Defendants—Cross



135a

Q. I believe that occurred purely with regard to the
[46] Negro children last September. The children who 
were members of the class here seeking the desegregation of 
the schools, they were the ones who were spit on and had 
rocks thrown at them. Is that correct, sir? A. Well, the 
only way I know was reading it in the paper. I didn’t see 
it.

Q. You weren’t there on the scene? A. I was— I was 
at one school, yes, on the scene. I made it a point to stay 
there those days.

Q. Yes. I believe you testified that in the vote on this 
plan that you had one dissenting— The Chairman was 
absent, and you had one dissenting vote? A. Yes.

Q. Which was the vote of the Negro member, Mr. Ennix? 
A. Yes.

Q. Was there any plan, Mr. Pettit, wThich was considered 
which would have desegregated more slowly than the plan 
which you now propose to the Court? A. You mean did 
we discuss plans like that?

Q. Was there considered by the Instruction Committee 
or the Board any plan which would have— A. (Interrupt­
ing) We talked— Yes. We talked of several different ap­
proaches to it.

Q. Well, sir, what I am asking is if there was any plan
[47] which was considered which would have extended the 
period of desegregation out over a longer period than the 
12 years which the Board now proposes to the Court? A. 
Over a longer, no. No, there were none.

Q. Then, in point of gradualism, this was the most ex­
treme plan which was considered by the Board. Is that cor­
rect, sir? A. That’s right. We—

Q. What other plans have been considered by the Board 
at times in the past, Mr. Pettit? A. We— We considered

Elmer Lee Pettit—for Defendants—Cross



136a

starting at the high-school level, probably the 12th—11th 
and 12th, but we—

Q. That was prior to the January hearing in this case? 
A. That was a couple of years ago.

Q. A couple of years ago, you had considered starting at 
the high-school level? A. We didn’t really consider it. 
I mean it was brought up to debate the question. We didn’t 
consider it seriously.

Q. I don’t know whether I ’m in order in asking this ques­
tion, but was the plan for beginning at the high-school 
level proposed by your Negro member, your minority mem­
ber? A. No, sir.

Q. What position did he take? A. On that particular—
[48] Q. (Interrupting) What position has he taken with 

regard to the plan which the Board should submit? A. 
Well, I don’t— As— As Chairman, when we all discussed 
it, I don’t know that—

Q. You are not familiar with that position? A. Not 
familiar enough to say what— I think he would be the one 
to answer that.

Q. This plan in which you stated the Board considered 
two years ago to begin at the high-school level, would you 
state that plan in greater detail to the Court, if you please, 
sir? A. Well, we thought we would start wuth the 12th 
grade one year, and the 11th, but after we— We didn’t 
discuss it too long because the Superintendent said educa­
tionally it wasn’t sound. And I might— I might add that 
(and I think that probably the purpose was that) in that 
plan that probably there wouldn’t be any that would trans­
fer in the 12th grade, and maybe there wouldn’t be any in 
the 11th; and then, if they did, why then, we’d have a lot 
of trouble, but we—we just discarded that plan because 
we—we— We thought it would be trying to get around 
the Court order, and we were not trying to do that. We

Elmer Lee Pettit—for Defendants—Cross



137a

were trying to abide by the Court ruling, and not try to 
get around it. So we switched ends there and started to 
try to work it out the [49] best we could from an educa­
tional standpoint.

Q. Mr. Pettit, did the Board at any time consider a three- 
stage plan of taking a normal functioning unit each year : 
this year the first six grades, this year the junior-high 
grades, and the following year the senior-high grades! 
Did the Board at any time consider such a plan? A. We— 
We had discussed it.

Q. And that was over two years ago also, was it not? 
A. Oh, no. No. I wouldn’t say. I mean any member is free 
to bring up any plan, and we would— We’d pick it apart 
and then we—

Q. (Interrupting) Was such a plan also considered by 
the Instruction Committee? A. You mean in our unit?

Q. Yes, sir. A. Not as— I don’t recall any specific plan 
where it would take the different units, primary, elemen­
tary, junior high, and high school.

Q. Then the Board hasn’t even considered that plan, 
the plan of desegregating a normal functioning unit at a 
time? A. We—We had— We had discussed the fact where 
the elementary and high schools, and then we discussed the 
two or three, and it’s hard to say. In our school, we don’t— 
We don’t have the three-grade division really as a func­
tional [50] separation there in the operation of them like 
the three grades and next three grades.

Q. Mr. Pettit, assuming that the high schools of the City 
of Nashville were to be desegregated this coming Septem­
ber, on the racial zones which were provided in the plan 
which was partially approved by this Court on January 21, 
1957, can you state how many—approximately how many 
Negroes there would be in integrated situations in high 
schools? A. No, I couldn’t.

Elmer Lee Pettit—for Defendants—Cross



138a

Q. Has the Instruction Committee considered such fig­
ures'? A. No.

Q. Then, the Instruction Committee has not taken the 
school population and the respective geographical loca­
tions of the schools according to the zones which the Board 
has set up and determined how many Negro students would 
he integrated in white schools in hypothetical situations? 
A. We had that. I think at first we had the number.

Q. Tou had it as to the first grade? A. No. When we 
first started discussing it, I—we had the—the— In our 
census we had it broken down then. That’s been probably 
two years ago since we had that number.

Q. Then, in submitting the plan which is now proposed 
[51] to the Court, the Instruction Committee and the Board 
of Education as a matter of fact do not know exactly how 
large an integrated situation you would have if the entire 
school system was desegregated in September, do they? 
A. I don’t right now. I couldn’t give you that figure.

Q. And if the high schools were to be integrated in Sep­
tember, they wouldn’t know how many? A. Well, it’s— 
It’s hard to— It— It would be hard to tell. We had those 
figures, but we can’t— When we built a new school, accord­
ing to the census and the Bureau of Statistics, we figured 
that we needed a hundred—we had a hundred first-graders. 
When school opened, there were 160 first-graders. And you 
can’t— And the way the population shifts and moves, it’s 
hard to know.

Q. Well, as a matter of fact, it was in evidence before the 
Court on January 21, 1957, that there were approximately 
3,000 children involved in the integration situation for this 
past September in the first grade. As a matter of fact, 
there are actually only eight or nine Negro children in inte­
grated situations. Is that correct, Mr. Pettit? A. At the 
present time?

Elmer Lee Pettit—for Defendants—Cross



139a

Q. Yes. And how many schools does that situation in­
volve! A. Six—seven. I might say there’s only your nine 
[52] Negro students involved, but you have your white. 
I think you should— Your white students are involved in 
that, too. We’re not just— Our problem is not just the nine 
colored children.

Q. Oh, we understand that, sir. A. They’re all involved. 
The only difference is the hundred or so that out of that 
total that chose to go to the—to remain or go to the colored 
school.

Q. Yes, s ir; but how many first-grade schools do you have 
here in the City of Nashville? A. Elementary?

Q. How many schools, that is, that include the first grade, 
sir? A. That include the first grade?

Q. Yes, sir. A. Let’s see. About—I don’t know the exact 
number. Thirty-some-odd.

Q. Approximately 30? A. Something.
Q. And of the first-grade integration, which occurred 

under your present zoning system which you adopted last 
January (that is, January ’57) or thereafter pursuant to 
the plan approved on that date, only six out of 30 schools 
were involved in integrated situations? [53] A. Six or 
seven. I believe it’s six.

Q. Yes, sir. Is that entire number of six presently in­
volved or was that the number originally involved? A. 
They’re the ones involved now.

Q. Now, Mr. Pettit, you say that—- You testified, I  be­
lieve, that the people—that the Board invited people— 
Bid the Board actually extend a formal invitation to people 
from the Community to render whatever assistance they 
could on the desegregation problem? A. I can’t say. The 
only thing, I think we announced in our meeting, but we 
never— We had so many people there we didn’t have 
room to invite anybody else.

Elmer Lee Pettit—for Defendants—Cross



140a

Q. Well, sir, has that been true at every meeting that 
the Board has had! A. Not every meeting, just when some­
one heard that we were going to discuss this problem. Then 
it filled up fast.

Q. People have attended the Board meetings! A. Yes, 
they have.

Q. I believe that was true even before this suit was filed, 
was it not, sir! A, Well, not to the extent that they did 
after the—- Yes. Before— Not before the suit was filed.

Q. Well, isn’t it true as a matter of fact that before 
the suit was filed, that a number of Negro parents attended
[54] your Board meetings and asked the—both Negro 
and some white parents! A. Some white, yes. We had the 
white ones first.

Q. And asked the Board to desegregate the schools! A. 
That’s right.

Q. And the people who have been meeting with you re­
cently are primarily white, some white people. Is that cor­
rect! A. No. We— It’s about half. We’ve had more 
representing the colored, or—

Q. You had— Pardon me. A. Yes, we had recently— 
We had two groups the last meeting, one wanting to— Well, 
like they always— They don’t want to desegregate. The 
other group, bringing in some petitions signed by lots of—• 
some religious organization. Of course, they were all 
colored, and they were probably sponsored by this CORE 
outfit.

Q. Well, sir, I ’m not asking you what— I ’m not asking 
you to speculate now. A. O.K.

Q. If you please, Mr. Pettit, if you will just testify what 
happened. I don’t want your speculation. A. I ’m just tell­
ing you the groups that came and who—

[55] Q. (Interrupting) This remark, “probably was 
sponsored.” May I ask you this, sir: Will you name some

Elmer Lee Pettit—for Defendants—Cross



141a

of the organizations whose names appeared on that petition 
asking the Board to desegregate? A. The names on the 
petition?

Q. Yes, sir. I believe you stated that there were some 
names of some organizations on the petition asking the 
Board to desegregate. A. Well, they were mostly churches, 
a group of Methodist churches and Baptist churches and one 
labor union, but mostly they were all organizations—

Q. (Interrupting) A labor union? A. Yes.
Q. What labor union was that, sir? A. Some— Well, I 

don’t recall the name. It was some local.
Q. Were there any Jewish organizations listed on that? 

A. On that particular one, I don’t recall.
Q. Well, have you had petitions from Jewish organiza­

tions, sir, with regard to the desegregation question? A. 
Yes, we have.

Q. What has been the tenor of their— A. I couldn’t tell 
you exactly what they— They weren’t—

[56] Q. In general, has it been favorable toward deseg­
regation? A. Yes, I think so.

Q. Where were these churches located that you indicated 
were listed on these petitions that were recently brought? 
A. They were all located around—

Q. Here in Nashville? A. Here in Nashville. I think all 
of them were Nashville churches.

Q. How many were there, sir, all together? A. Well, I 
got a supplement to that with probably 10 or 15 more, and I 
don’t know the exact number.

Q. Well, on the original, could you approximate it please, 
sir? A. I—I just couldn’t. There was a big stack of them, 
but I don’t—I didn’t count the exact number.

Q. I call your attention to the newspaper report that 
there were 26 organizations on the original. Would that— 
A. That would be about—

Elmer Lee Pettit—for Defendants—Cross



142a

Q. That would be approximately correct, wouldn’t it? 
A. That would be probably correct, I would say.

Q. Then you didn’t intend to say— You didn’t intend 
the Court to understand you as saying a while ago as I did 
—as I understood you to say, that these people who were
[57] petitioning the Board, represented outside—to de­
segregate the schools, represented outside interests that 
merely came into Nashville and tried to tell you what to 
do? A. What I— What I mean, I think the extremes on 
both sides are probably pressured from the outside.

Q. Yes, sir. Oh, you— A. (Interrupting) Except the—
Q. (Interrupting) Are you taking the position, Mr. Pettit, 

that the Nashville Board of Education cannot find anything 
of value to assist it in desegregating that comes from out­
side the State of Tennessee? A. No, sir.

Q. Are you taking the position that all textbooks are 
written in the State of Tennessee, sir? A. No, sir. I 
know—-

Q. (Interrupting) You use textbooks in your schools that 
are written outside the State of Tennessee? A. Yes, sir. 
I—I am aware of that.

Q. Yes, sir. I gather from what you have stated that 
the Board of Education then is taking the position that in 
approaching desegregation that outside help should be 
shunned insofar as devising any technique, insofar as de­
termining techniques and methods of desegregating the 
schools? A. No. We didn’t— We didn’t take that at­
titude.

[58] Q. On what facts did you base your statement, sir, 
that you thought that— Well, let me withdraw that ques­
tion. You stated that there were two extremes, that there 
was a group which wanted to—that was bitterly opposed to 
desegregation, and that there was a group which was very— 
ah, bitterly opposed to desegregation, and that there was a

Elmer Lee Pettit—for Defendants—Cross



143a

group which, was very strong for desegregation. Mr. Pettit, 
hasn’t the Board taken the position that it would comply 
with the law as declared by the Supreme Court? A. We 
have. We have.

Q. Then, Mr. Pettit, isn’t the Board strong for desegrega­
tion? A. That— That’s— It’s according to— We intend 
(and have always) to follow the order of the Court, but at 
the same time, the Supreme Court didn’t say, “You’ve got to 
do that September 1st, 1956,” or “’7,” and in good conscience, 
we’re trying to work out something that’s been given us as 
a school board to work out with the idea of educating the 
children and complying with the law, but—but for some­
thing that’s gone on for 70 years, and then expect us to 
remedy it over night— Our main purpose is education.

Q. Yes, sir. A. And we’re— We’ve tried to (and to the 
best that we know how)—to work it out where we can and 
not have any [59] trouble like we had last fall.

Q. Yes, sir. And I agree with you, Mr. Pettit, on the 
side— If I may just make that remark on the side, I agree 
with you that your main problem is education. I would like 
to ask you this: Doesn’t the efficiency of your education 
depend to some extent in this desegregation situation on the 
extent to which you educate the public? A. Sure. I think 
the public must be educated, yes.

Q. What steps has the Board taken since the desegrega­
tion decision in 1954 to attempt to educate the public? A. 
We had— Our Superintendent at that time did go to all 
the schools. He didn’t get to all of them because of his 
health. And—and they had meetings and we tried to ex­
plain it, and that— As far as the school, that’s as far as 
we went with it because primarily we—we’re supposed to 
run the school inside, to educate the children, and as far 
as— It’s not really our problem to educate the parents. I 
mean we try to, but it’s just more than we can—we can do.

Elmer Lee Pettit—for Defendants—Cross



144a

Q. Well, Mr. Pettit, isn’t it the policy of the Board to 
try to educate the public insofar as safety matters are con­
cerned, insofar as school safety of children going to and 
from school is concerned? A. School safety, yes.

Q. And safety of children in school insofar as the [60] 
conduct of their parents may affect that? A. We— We 
teach safety in school, but as far as trying to teach the 
parents outside, I mean after school or things like that, 
we don’t go into that.

Q. Sir, aren’t your parent-teacher associations designed 
to obtain a close liaison between the school officials and 
teachers and the public? A. I—I think that’s what the 
Parent Teacher Association tries to do.

Q. Was any effort made by the Board of Education after 
the first or second desegregation—segregation decision in 
the Brown case, or at any time, to attempt to educate the 
parents and the general public to the idea that the Board 
was going to comply with the law and that it was inevitable ? 
Was that at any time done through the PTA’s or through 
any other method? A. We have a PTA panel at our Board 
representing two groups, and they at first said they would 
—they would help the Board. And, also, there has always 
been cooperation between us and the PTA, and I think 
they have—they have worked hard to—to help in this.

Q. Mr. Pettit, has the Board ever made any firm, un­
equivocal statement through its PTA’s, or to the community 
through any other organization, that “We intend to comply 
[61] with the law and we intend to do it soon and we expect 
the cooperation of the community”? A. We made that 
statement not long after the Supreme Court made—that we 
were going to abide by the law, that we were going to 
follow the Supreme Court, but as far as telling the PTA 
that we were going to do it and expected them to cooperate, 
I don’t recall ever doing it—the Board ever doing it.

Elmer Lee Pettit—for Defendants—Cross



145a

Q. And as a matter of fact, the Board has been lukewarm 
about its attempt to comply with the Supreme Court’s deci­
sion throughout the time since the decision? A. No, sir; 
I can’t agree with you.

Q. Well, sir, I think you testified—or did you testify 
that you thought the majority of the community was in 
favor—was against desegregation? A. I didn’t say that. 
I think it’s— It’s probably generally believed that most of 
the white people are against it, and I can’t speak for other 
people.

Q. Is that why you thought:—you testified that you 
thought the wisest plan was a gradual plan to go up one 
year at a time, that the Board thought that? A. That is 
one reason. Surely.

Q. That is the main reason, isn’t it? A. Not— No. I 
don’t know as it is the main. I t’s [62] one of the main. I t’s 
one. I t’s a main reason. I t’s a strong reason.

Q. Now, Mr. Pettit, last September when the schools 
desegregated— The first grade has been desegregated now 
insofar as situations, which you mentioned, since last Sep­
tember. That involves six principals, does it not? A. Yes.

Q. Has there ever been a meeting of those principals 
among themselves on the desegregation question? A. I 
know we had one the first day.

Q. Have you had one since the first day, Mr. Pettit? A. 
That— The Superintendent probably has.. I wouldn’t know. 
The Board hasn’t.

Q. Insofar as he has reported to the Board, you have no 
knowledge of any such meeting? A. The Board did not 
call them in.

Q. You testified, I believe, that you thought that you 
could handle the situation as long as it was in that context, 
in the context of one grade at a time and in small situations.

Elmer Lee Pettit—for Defendants—Cross



146a

What do you base that statement on, Mr. Pettit, what factual 
basis ? A. Facts ?

Q. Yes, sir. A. Just the nine members on the Board get­
ting together [63] and trying to reason out what would 
be the best, and after we tried one grade this fall, if we had 
had twice that many schools, you wouldn’t have had the 
police to take care of them because we used every one they 
had, and it was still pretty rough because I was— I went 
through the crowd to take my child to school, and if I hadn’t 
been on the Board, he wouldn’t have gone back the next day 
because it wasn’t the right condition for a child to go to 
school.

Q. Yes, sir; and then the Board— And that is another 
reason why the Board has reached the conclusion that the 
12-year plan is best because, based on your reasoning among 
yourselves from the September incident, you think that if 
that situation were magnified that it would be a problem 
that the police couldn’t handle. Is that correct, sir? A. 
That— That’s not the— That’s one reason. That’s one 
reason only. The main— The main reason is education, 
and after our Superintendent and supervisors, and they 
believed to the best of their knowledge that they could 
handle the situation, that they could educate the children, 
and it would work out and not be too hard to administer, the 
School Board— We took their advice and judgment on it.

Q. The Board has not at any time considered a compro­
mise on the question of this time? A. We— We— We’ve 
discussed all different angles.

[64] Q. Has the Board considered, Mr. Pettit, in its 
assumption that the incident difficulties in September 
would be magnified if integration were begun at once ? Has 
the Board considered that it would be considerably more 
magnified if it occurred a year at a time for the next 12 
years? A. I don’t—don’t get all your question just like—

Elmer Lee Pettit—for Defendants—Cross



147a

Q. Well, sir, you stated that one of the reasons why the 
Board favored the 12-year plan was that based on the diffi­
culty, reasoning among the nine members-—that based on the 
difficulty which occurred last September, the Board felt that 
if all the schools had been desegregated at the same time, 
the police would not have been able to handle them, that 
that was one of the main reasons. A. That—

Q. (Interrupting) Now, I ’m asking you, sir, has the 
Board considered the great difficulty which would be in­
volved should that situation re-occur every September for 
the next 11 years? A. We—- We believe that on the 
gradual plan that it will get smaller each year, the opposi­
tion to it, and that’s—

Q. (Interrupting) Then, sir, the Board does not believe 
that you will have that problem for any number of years. 
Is that true, sir ? A. I don’t think it will be as great as we 
had.

[65] Q. Well, sir, if— Assuming your first pos­
tulate, that desegregation was to occur all at once, if it had 
been ordered all at once in September, are you taking the 
position that the difficulties which you are assuming would 
have occurred then would continue to exist? A. I don’t 
know.

Q. Then, sir, you— Well, what is your belief in that 
regard, sir? A. You mean whether—if we desegregated 
the whole thing, what would have happened then?

Q. Do you believe that any difficulties that you might 
have would just continue indefinitely or do you believe 
that that would subside just as you think it will subside 
before the end of this 12 years? A. That’s something that 
I can’t answer, and I don’t believe anybody else can.

Q. You can’t answer this, but you would attempt to an­
swer the other? A. Well, I think—I think any gradual, as

Elmer Lee Pettit—for Defendants—Cross



148a

people become accustomed to it, there will be less opposition 
to it.

Q. Thank you, sir.

Redirect Examination by Mr. Boult:

Q. Mr. Pettit, I want to ask you if the PTA organization
[66] as such is organized by or responsible to the Board 
of Education? A. No, sir.

Q. State whether or not it is a purely voluntary organiza­
tion at each separate school? A. It is a voluntary organiza­
tion, and I know nothing else about it, only I pay my dues.

Q. It has its own city-wide and state-wide organization, 
but the Board of Education has nothing to do with that? 
A. It has nothing to do with it.

Q. Mr. Pettit, I believe you testified in connection with 
your own child at the school. I will ask you if you remained 
at the school with your child? A. Yes, I did.

Q. For how many days? A. Two whole— Two days 
and then the next day there wasn’t anybody there but about 
one or two boys, mine and another boy and a little colored 
boy. That’s just about all they had the rest of the week so 
I didn’t see any use staying there.

Q. You mean there were only three children in the grade? 
A. There might—might have been—

Q. Three or four children? A. There was one or two, 
just two in his class, I think, [67] but they got up as high 
as 15 or 20, I guess, during the week. I ’m not sure.

Q. With reference to the attendance, I will ask you if 
that did not only occasion—the incidents of last September 
did not only occasion the physical damage to the Hattie 
Cotton School, but was there or not a loss in the daily 
attendance average figures? A. There was quite a loss 
in the—as far as our state revenue—

Elmer Lee Pettit—for Defendants—Redirect



149a

Q. State funds? A. State funds on average daily at­
tendance.

Q. And that was in a substantial amount? A. Yes.
Q. Now, in connection with the high-school situation and 

the abatement of the impact of admittance of a large group 
to more than one grade, and simply for the record, I want 
to ask you if there are not colored students in more than 
one grade admitted in Little Rock, Arkansas, according to 
the reports?

Mr. Looby: If Your Honor please, I object to what 
happened in Little Rock, Arkansas, unless he can 
testify of his own knowledge.

The Court: Yes. He would have to know of his 
own knowledge.

[68] By the Court :
Q. Ho you know that of your own knowledge? A. No, 

sir.

By Mr. Boult:
Q. That is all, only what public information has been 

reported. Now, Mr. Pettit, in your opinion would the mul­
tiplying of the problem by two, six, or twelve times result 
in making it easier to handle or more difficult to handle? 
A. You mean if we take more than the—

Q. (Interrupting) One grade year by year. A. I think 
so.

Q. You think it would be more difficult? A. It would be 
more difficult.

Q. Also, in that connection, state whether or not you and 
the Instruction Committee and the Board have tried to 
relate the problem to the city limits of Nashville, Tennessee? 
A. Yes.

Elmer Lee Pettit—for Defendants—Redirect



150a

Q. And its educational system? A. We have.
Q. And your testimony is that the plan submitted is in 

your judgment the best for Nashville, Tennessee, public 
schools? [69] A. That’s right.

Mr. Boult: Come down, Mr. Pettit.
Further this witness saith not.
The Court: We will take a 10-minute recess.
(A brief recess was taken at 11:00 A.M.)

Mary Brent—for Defendants—Direct

Miss Mary B rent, called as a witness in behalf of the 
defendant, being first duly sworn, testified as follows:

Direct Examination by Mr. Boult:
Q. This is Miss Mary Brent? A. Yes, sir.
Q. Miss Brent, I am not going to ask you how old you 

are, but I am going to ask you how long you have been a 
teacher or a principal in the system of the Nashville Board 
of Education, the City Schools? A. I have been a teacher 
in the Nashville Schools for 24 years. Nineteen years of 
those I have been principal.

Q. Where are you now principal and how long have you 
been principal? A. I am now at Glenn School in East 
Nashville, and this [70] is my 16th year there.

Q. Glenn School is located, I believe, at 322 Cleveland 
Street, East Nashville, Tennessee? A. Yes, sir.

Q. Miss Brent, were you the principal and on duty as 
such at Glenn School during the days of August and Sep­
tember 1957 during which time disturbances and violence 
occurred in connection with the enrollment and attendance 
of certain Negro children in the first grade at Glenn 
School? A. Yes, sir; in August and September.



151a

Q. There appears in the record in this case an affidavit 
signed by you in connection with the hearing for an in­
junction in connection with such disturbances. I will ask 
you if you have recently re-read that affidavit and if it 
accurately states your recollection of the occurrences at 
and around your school during that time? A. Yes, sir.

Q. Without going further into it at this time, it can 
be referred to as your testimony in that connection as a 
part of the record upon this hearing? A. That is true.

Q. Miss Brent, how many Negro children, first-graders, 
are in your school, Glenn School, at the present time? A. 
We have two students—two Negro students enrolled.

[71] Q. Are they presently in attendance at Glenn School? 
A. Yes, sir.

Q. And have they been since last fall when they enrolled? 
A. Since the very beginning.

Q. Are they in the same section of the first grade, or are 
they in separate sections? A. No, sir. They are in sepa­
rate sections, and I would like to make an explanation of 
that. In— When beginning first grades come in, they are 
not all of exactly the same age. Of course, they may come 
in just any time within their sixth year. We divide the 
children chronologically. We put the children of the first— 
born in the first four months in one group, the second four 
months in another, the last four months in another. We 
have three groups of the first grade. When these two 
Negro children were enrolled, one of them fell in the group 
of the oldest children, the other fell in the group of the 
youngest.

Q. That was a natural— A. (Interrupting) That was a 
natural.

Q. (Continuing) —and historical classification? A. 
That’s right. They were enrolled, in other words, and 
divided just as the rest of the children.

Mary Brent—for Defendants—Direct



152a

Q. Miss Brent, since September 1957, state whether or 
[72] not there has continued to exist a tension in your school 
and in your school constituency? A. Yes, sir; there has. 
We have managed, since there are only the two children. 
We have fairly well managed to keep it down within the 
school itself, but it’s mostly on the outside that we have 
felt it. The two Negro children are brought to school each 
day and are taken home by one or other of the parents. 
That’s one thing.

There have been two or three incidents within the school 
that older children had brought about. As far as the 
children with their own first-grade group, they are well 
accepted. Things have gone on fairly smoothly, but with 
the older children we have had some trouble.

I myself have been the brunt of several pretty bad 
things. I mean such as anonymous telephone calls and call­
ing me different names that a lady doesn’t appreciate. And 
for the first— I ’d say the first six weeks, there was a con­
stant stream of parents in and out of the school putting up 
the arguments to me that I had listened to most of the 
summer; and sometimes they would go away satisfied, some­
times they would not. Some of them have never come back 
into the school since that time.

Q. And has there been dissension or tension in the Parent- 
Teacher organization itself? [73] A. Well, as far as the 
organization itself, the president—most of the officers have 
been determined that they were going to make it hold to­
gether, and they have done so; but I would say maybe 20 
parents, maybe more (between 20 and 30), have failed to 
join the Parent-Teacher Association for the first time, and 
they gave that reason, not to me but to other people, that 
that was why they did not join.

Q. In connection with these abusive telephone calls that 
you have received, state whether or not they have occurred

Mary Brent—for Defendants—Direct



153a

as late as within the last several weeks of 19581 A. Yes, 
sir. The last one I had was the Saturday night, or rather 
early Sunday morning following the bombing of the Jewish 
Temple. That’s about three weeks ago.

Q. I am not going to ask you to repeat the language which 
was used, but ask you the hour of the night that you were 
called? A. It was about 1:30 in the morning.

Q. And did the -caller identify who it wras calling? A. 
Not at all. And on that occasion, I tried to get the person 
to repeat. It was a lady—a woman (let’s put it that way) 
at that time, and I tried to. get her to repeat what she said 
so that I might be able to get the voice. I couldn’t do it.

[74] Q. Miss Brent, in connection with education and the 
education of children, that I believe you would regard as 
your primary responsibility? A. That’s right.

Q. Do you. actually teach at the present time? A. No. 
I am not a teacher.

Q. Do you feel that the education of the two Negro chil­
dren in the first grade has progressed satisfactorily? A. 
Yes, sir; I do. In the case of one child, it has been excep­
tionally good. In the case of the other child, she is im­
mature, she is young, and the work has been hard for her.

Q. In connection with the other children in the grade, 
the white children, have they also seemed to progress satis­
factorily, meaning compared to other years educationally? 
A. I can’t see that this has made any difference in their 
progress. The only thing is: We almost had to discount 
the first month of school because of the pulling and pushing, 
pulling children out of school and bringing them back; 
and deciding that they’d go to the county, and bringing 
them back again. Until about the second week in October, 
we did not have our roll set up to where we honestly knew 
which children belonged to us and which were going to stay. 
Now, that is the only thing which has held us back.

Mary Brent—for Defendants—Direct



154a

[75] Q. Have your teachers, particularly the first-grade 
teachers, undertaken to perform their duties under these 
difficult circumstances? A. They certainly have, and they 
have done a beautiful job.

Q. Has it been difficult? A. It has been very difficult.
Q. Are you familiar with (meaning have you read) the 

plan which is proposed at this time by the Nashville Board 
of Education and which has been filed with this court and 
which is the subject matter of this hearing? A. I have 
only read it in the paper.

Q. I believe it wTas accurately copied and reported— 
quoted in the newspaper. You are familiar with the fact 
that it is a year-by-year plan as it has been called in the 
courtroom this morning? A. Yes, sir.

Q. And it retains the transfer provisions and also con­
tains a provision providing for subsequent report to this 
court if deemed necessary. Now, that refreshes your mind 
about it, does it not? A. Yes, sir.

Q. Miss Brent, based upon your experience as a teacher 
and as a principal, as one who has had the experiences at
[76] Glenn School which you have described, give us your 
opinion and judgment about the advisability of the new 
proposed year-by-year plan.

Mr. Looby: If Your Honor please, we want to 
object to that question, this witness’s opinion. The 
opinion of the defendant may be admissible, but I 
doubt if the opinion of this lady would be admissible.

The Court: Well, she has had 24 years of school 
experience. I think she qualifies as an expert on 
school matters.

Mr. Looby: Your Honor allows it?
The Court: Yes. I will allow her to answer. I 

think she clearly qualifies to express an opinion.

Mary Brent—for Defendants—Direct



155a

Mary Brent—for Defendants—Direct 

By Mr. Boult:

Q. Miss Brent, answer the question please. Do you think 
it advisable? And if so, why? A. I think it’s the only 
plan that we in Nashville can accept right nowr and make 
work. If people had been at Glenn School as I was during 
the last of August and most all of September last year—in 
1957, they would realize that it was not an easy thing to do. 
Any radical change is bound to bring chaos, and this was 
certainly a radical change.

Now, in an educational institution, teachers cannot
[77] do their best in the midst of excitement and turmoil 
and upheaval. I feel that if we can do this and get it over 
in people’s minds that it is the law of the land, that we 
are trying to do our best to accomplish the purpose that 
the Supreme Court—the thing that the Supreme Court has 
set up for us to do, if we do it gradually, let them get ac­
customed to it gradually, I believe we will have a much 
better chance of succeeding in the end.

To me, integration and desegregation are not the same 
thing, and we would like very much at the end of 11 years, 
or however many years it takes, to feel that the schools 
are truly integrated, that it’s not just a question of their 
being desegregated. That feeling will have to come from 
the hearts of people. It cannot be forced, and it certainly 
cannot be thrust upon them in a hurry. In the second 
place, I  feel that little children, for instance, these children 
in the first grade, now are absolutely accustomed to having 
the Negro and the white child right there together. They 
play together. They eat together. Everything goes along 
just the same. There’s no difference whatsoever made. 
Well, if that group moves on next year to the second 
grade, they will still be accustomed to that. The children 
that are coming in in the first grade naturally expect their



156a

group to be desegregated. If you jump and begin to take
[78] children in higher grades, you are going to double 
your trouble. I firmly believe that it is the only plan.

Q. Thank you, Ma’am.

Mr. Boult: You may ask her.

Cross Examination by Mr. Looby:
Q. Miss Brent, I  understand that your opinion is predi­

cated upon the community resistance, as to how the com­
munity accepted. Am I correct in that assumption? A. 
Well, after all, Mr. Looby, the only situation with which 
I am very familiar is the situation right there at Glenn 
School.

Q. And your opinion is based upon the fact that people 
resented this desegregation? A. That is part of it, yes.

Q. Well, what is the other part? A. Well, the other part 
is this, Mr. Looby: Those children have come in— We 
firmly believe now that they have a foundation that will pre­
pare them to go along into the second grade with the white 
children. They will the next year be able to progress. There 
will be no differences in their (shall we say) background. 
We feel that educationally it mil be the best thing for 
the child, and after all, that is what we are concerned with. 
We leave the outside trouble [79] to the policemen.

Q. The outside trouble (since you mentioned that), after 
the police got busy, you had no further trouble, did you? 
A. Oh, yes.

Q. What trouble did you have after the policemen— 
A. (Interrupting) Well, we did not have any—oh, I mean 
any screaming and things like that. The police were on 
duty (I would say) for possibly three weeks over there,

Mary Brent—for Defendants—Cross



157a

but that is not the only trouble. There has been a— As 
I said before, there has been a constant stream of parents 
from one thing and another coming in. They will come in. 
We have had, oh, such things as rock fights involving chil­
dren of the two races which we had never had before.

Q. Have you had any trouble involving children of the 
same race? A. Oh, yes. We still have child problems.

Q. And that exists regardless of the race, doesn’t it? 
A. That’s true.

Q. All right. Now, let’s get back to this question: Chil­
dren themselves have no prejudice, have they? A. Small 
children do not.

Q. Do not. And insofar as the children are concerned, 
we could have desegregation at any time, couldn’t we ? 
A. No. Now, I would wonder about that. The few times 
[80] that we have had trouble within the school when I 
would consider it really a race problem, every time older 
children have been involved.

Q. And you also have that same kind of trouble between 
older and younger children of the same race? A. No. Not 
the same type problems.

Q. What type are they? A. Well, now, for instance, at 
one time one of the little Negro girls had not finished her 
lunch on time, and as we do with most first-graders, the 
teacher left her at the table. She was still there when the 
class came in that was supposed to take the place of the 
first grade at that section of the lunch room. A boy came 
and sat at the table, a fifth-grade—a fourth-grade boy sat 
at the table, and when he saw the little Negro girl there, 
he slammed his tray down on the table and took his chair 
and shoved it out, and said, “I won’t eat at the table with a 
nigger.” So I was able to handle that problem because it

Mary Brent—for Defendants—Cross

was one.



158a

Q. And it was a disciplinary problem that any principal 
may encounter! A. If you don’t have too many of them, 
yes.

Q. All right. Now, other than community objection, 
what problems have you had! A. Well, now, the mother 
of one of the little Negro [81] girls has come to the 
teacher. She did not come to me. But she has come to 
the teacher saying that some of the older children were 
making fun of her little girl in the rest room; and when 
we got down to find out how to overcome that, the only 
(thing we could do was to see that the teacher went to 
the rest room when this child goes.

Q. And from that time on, the teacher has to go with 
one of them every time she goes to the rest room! A. With 
the little Negro girl, yes.

Q. Insofar as the aptitude is concerned, there is no dif­
ference between the races, is there! A. With these two 
children— Now, that’s the only—of course, the only ex­
perience that I have had.

Q. I see. A. But, no, sir; I cannot see any difference 
with those two.

Q. Now, those children have been in the school from 
since last September! A. That’s right.

Q. And they are making satisfactory progress! A. Yes, 
sir.

Q. Now, as to the older child, he was in a different 
grade, wasn’t he! A. Yes, sir. He was in the fourth 
grade. You mean the [82] one in the lunch-room incident!

Q. Yes. A. Yes, he was in the fourth grade.
Q. And so the difficulty arose because only one grade 

was desegregated and the other grades were not! A. No. 
Now, that’s not the way that I meant to imply. I meant 
that the younger children realize less difference of any

Mary Brent—for Defendants—Cross



159a

sort. They are not conscious of racial differences, relig­
ious differences, or any other kind, but older children are.

Q. What difference in grade were these two children 
involved? A. One, of course the little Negro girl, was in 
the first. The other boy was—I think he was either fourth 
or fifth., I am not. sure which.

Q. So then you would not recommend that the fourth or 
fifth grade be desegregated? A. Not right at this time; 
no, sir.

Q. Now, these calls that you have been getting, when did 
you say was the last one? A. Sunday morning after the 
Jewish Temple was bombed.

Q. You didn’t get one last Saturday morning? A. Didn’t 
get one last Sunday morning?

Q. Well, I did. [83] A. You did?
Q. Yes.

Mr. Looby: I guess that is all.
The Court: Is that all of this witness?
Mr. Boult: That is all. Thank you, Miss Brent.
Further this witness saith not.

W. A. Bass—for Defendants—Direct

W. A. B ass, c a lle d  a s  a  w itn e s s  in  b e h a lf  o f  th e  d e fe n ­
d a n t , b e in g  f i r s t  d u ly  sw o rn , te s t if ie d  a s  f o l lo w s :

Direct Examination by Mr. Hunt:
Q. Is this Mr. W. A. Bass? A. Yes, sir.
Q. Mr. Bass, I believe you were one of the defendants in 

this case, being Superintendent of Schools at the time this 
lawsuit began. Is that a fact? A- That’s correct.

Q. How long were you Superintendent of Schools in Nash­
ville? A. Twenty years.



160a

Q. And have you now retired? A. I have.
[84] Q. As of what date? A. As of January 1st last.
Q. I believe you were a witness in the hearing at which 

the plan was proposed under which the first grade was 
desegregated, were you not? A. I was.

Q. Are you familiar, Mr. Bass, with the plan which the 
Board has adopted for further desegregation in Nashville? 
A. Yes, sir.

Q. You have read that plan? A. Yes, sir.
Q. State whether or not that is in substance the plan 

which you as Superintendent prior to your retirement 
recommended to the Board? A. It is. In fact, I made the 
written recommendation, one of the last recommendations 
I made to the Board before retirement. It was that the 
Board continue desegregation in the first grade and add to 
it the second grade coming September next, it being under­
stood that the original plan regarding maintenance of 
recognition of school zones and transfer features adopted 
by the Board and approved by the Court would be in 
continuation.

Q. If it is the plan you recommended, I assume— I will 
ask you, Mr. Bass, if it is not in your opinion the best plan
[85] that is available for Nashville? A. I wouldn’t have 
recommended it if I hadn’t thought it was the best thing 
to do for the City of Nashville.

Q. Now, Mr. Bass, endeavoring to be concise, will you 
state to the Court the reasons why you think this is the 
best plan available? A. I think I have two reasons I should 
like to state: Number one is the—is the distinct recogni­
tion of the fact that the children grow from what they 
are to what they subsequently become. They don’t become 
what they do become immediately and at once. And so I 
based my recommendation on that fact, that adjustment

W. A. Bass—for Defendants—Direct



161a

to an entirely new community problem, such as is involved 
in the change of attitude, the change of practice, the change 
in tradition that this plan or that the desegregation in­
volves, I figured that— I reached the conclusion that bas­
ing any decision upon the natural growth and development 
of children would be the only safe and sound approach to 
the problem.

Another problem: Schools are not—not just school build­
ings and just school children. They have teachers there. 
I took into account the teacher problem and experience I 
had had with teachers.

When I came to Nashville as Superintendent of Schools 
(and this fact can be established in the mouths of many
[86] witnesses), I called a meeting of the English teachers 
in the junior- and senior-high-school groups. It had not 
occurred— It never occurred to me that I would have any 
difficulty because as State Supervisor of High Schools I 
had held conferences all over the state involving both white 
and Negro teachers primarily in the county schools.

Well, the day came for the meeting I had personally 
called. I was in my office gathering up some material I was 
taking to the meeting. At that time, our Negro schools 
were opened ten minutes earlier than the white, and as a 
consequence they dismissed ten minutes earlier. Our Negro 
teachers arrived on the scene ten minutes ahead of the 
white teachers. They went in the room and in a normal 
manner took their seats in the room.

Just before I started from my offi.ce down to the meet­
ing place, the Principal of Hume-Fogg High School, C. T. 
Kirkpatrick then (He is dead now), came down all excited. 
He said: “The white teachers won’t go in. The Negro 
teachers have taken their places about over the room, and 
they won’t go in and sit by them.” That was the coldest,

W. A. Bass—for Defendants—Direct



162a

most unsatisfactory educational meeting I ever presided 
over.

Now, I never forgot that. I didn’t know what to do. I 
was confronted with a hard problem, and yet I knew— 
Any Superintendent would have known that the efficacy 
of his [87] administration in the last analysis depended 
upon what he could do through the teachers, and it was 
highly necessary that we establish a way of work that 
brought about mutual respect and mutual confidence.

And so I had to change my tactics, and I started with 
the principals and supervisors. We had mixed meetings 
and we finally got common understanding, but it took 10 
years to get that done where the teachers and—ah, princi­
pals and supervisors would sit down and talk in confidence.

Now, when you consider adults having that sort of diffi­
culty, you must remember that you can’t force desegrega­
tion upon children and the adults and maintain that favor­
able attitude for learning. If you don’t have that favorable 
attitude, you just as well close the door and have a holiday 
that day because children will not learn where they are 
under stress and strife.

I stood at Glenn School and engaged a group of people 
who were there, a big delegation of them, and one man 
stoutly maintained that he would not send his child to any 
city school (not just Glenn) if a single school permitted 
Negro children to attend with the whites, that he wouldn’t 
patronize the public schools. And so we had a lively dis­
cussion.

I saw the Negro parent who brought his child up to 
Glenn School. He went in and came around through the 
[88] auditorium and registered—enrolled his child, and 
came out the front door. He couldn’t get that little girl 
through the crowd without the intervention of a policeman.

W. A. Bass—for Defendants—Direct



163a

Now, that little six-year-old girl was getting her first im­
pression of a school.

I don’t want to see this community throw the baby out 
with the wash. We’ve got too good a school system (both 
white and colored) to permit anything that will tear down 
what some of us have worked hard to maintain. That’s 
why I made that recommendation.

Q. And this plan is the one that you recommended? A. 
Yes, sir.

Cross Examination by Mr. Looby:
Q. Mr. Bass, it is your considered opinion that a segre­

gated system is more desirable, isn’t it? A. I beg your 
pardon?

Q. It is your considered opinion that a segregated sys­
tem is more desirable? A. Mr. Looby, I don’t want to go 
into my personal views. I think, since the Supreme Court 
has spoken, what I think is not the material question. The 
question, it seems to me, is one of law, what is the best 
way to comply with the law of the United States as ex­
pressed through the Supreme Court. [89] And—

Q. (Interrupting) Do you know what it is? A. (Con­
tinuing) —I ’m in favor of the Board of Education carry­
ing it out. I know what it is. Sure I do. I have read it 
over and over, every word of it, and I gave considerable 
thought to that question of “all deliberate speed.” Now, 
we deliberated (and I think we were entitled under the 
Supreme Court’s decision to be deliberate) about this mat­
ter. We are not just trying to stand in the way. We are 
trying to determine the scope that we can take and do the 
job effectively. I told this Court the first time— I said: 
“This is a new problem with us. We’ve never desegregated 
a school system, and we want to learn by doing.” I main­

W. A. Bass—for Defendants—Cross



164a

tain that we still have a lot to learn. We will build on what 
we have achieved and do thoroughly and well not just for 
the white children but for the Negroes as well.

I have— Time after time in talking with our groups 
(principals, supervisors, and teachers), I have made the 
statement that we don’t want a single child, white or colored, 
to be injured as a result of the attempt of the Board of 
Education to comply with the Supreme Court’s decision. 
I ’m not so concerned about a bunch of adults, but I am 
concerned about these children.

And this plan is in the interest of the children who [90] 
will be affected, either white or colored, and I think our 
colored people who know me know that I am sincere in that 
remark.

Q. Well, Mr. Bass, I am going to ask you a question now. 
I have no objection to your making a speech, but just an­
swer this question please: Isn’t your opinion as to whether 
this system is best predicated upon your considered opin­
ion that segregation is not desirable? A. Not at all.

Q. That desegregation is not desirable? A. Not at all. 
If we had been in the formative stages here proposing an 
interpretation, we would have argued that question on its 
merits. Your question should apply not now but at the 
time the Supreme Court made its decision. I have tried as 
the Superintendent of the schools, through the principals 
and teachers at my disposal, to teach people to respect the 
law, and that I maintain today.

Q. In your entire administration of the City School Sys­
tem of Nashville, you have maintained a segregated system 
throughout, haven’t you? A. I have.

Q. And even in payment of teachers, jmu had a system 
where you had one salary scale for white teachers and one 
salary scale for Negro teachers, and maintained that sys­

W. A. Bass—for Defendants—Cross



165a

tem [91] until you were forced by the court to change it? 
A. That-— I aired that problem, and we maintained it until 
the Board of Education, through acts of the court (federal 
court), was required to make a change in it. And I want 
to say in following that up that we have been assiduous 
and as faithful in trying to meet every requirement of 
that court decision as we knew how.

I want to say another thing since you have raised that 
question.

Q. Yes, sir. A. I was Commissioner of Education of 
Tennessee one time, and at that time I— I used whatever 
influence I had with the legislature and with the governor 
to write a plan of equalization of educational opportunity 
in Tennessee, and one plank we insisted upon was that equal 
service (as indicated by training and experience) carried 
with it equal salary. And I think that ought to be stated 
in connection with this record as much as the answer I 
have made to your question.

Q. Now, you say it took you ten years to get the teachers 
to meet together? A. Not to get them to meet together. 
I could have— I could have called them together, and did, 
but I didn’t get the morale. I didn’t get at the bottom of 
the problem of [92] teaching. This business of teaching 
and working through teachers is not just a legal matter. 
I t’s a spiritual matter at base, and unless we can develop 
that rapport which a teaching group must have to touch 
the lives of children, we are not a successful school system, 
however good our buildings may be or whatever other 
physical features we may have.

Q. Is that one of the elements you take into considera­
tion in saying that this plan is the best plan? A. I said 
this. I say that this is the best plan for the reason that 
it enables us to consolidate the gains we make from year

W. A. Bass—for Defendants—Cross



166a

to year and not to create a lot of confusion and haranguing 
and threats and counterthreats around a school building.

Q. Did those confusion and threats and counterthreats 
to which you refer result from community objection? A. 
Basically, yes; and misunderstanding.

Q. So your plan is predicated primarily upon community 
objection to this—to desegregation? A. I am going to 
state the answer a little different from that. I am going to 
say that we take into account the community in which we 
are trying to operate, and if we know that community is 
going to be split in many splinters, we know right away 
that we have got a different instructional program from 
what we would have had had we had a community [93] 
that would have community of interest.

Q. I see. So that your plan for this one year—12-year 
plan is based upon what you consider would be the com­
munity objection? A. I think there are two answers to that 
question. I think the teachers can’t absorb too big a piece 
of this problem at one time, and I think the community will 
gradually see that their first impressions were erroneous 
and that this problem can be handled systematically with 
mutual benefit.

Q. Did you determine how many schools would be af­
fected if a rule for total desegregation were adopted? A. 
The answer to that question is that we asked— We called 
our principals all in to work on the question of determin­
ing school zones without reference or regard to race, and 
then we called—we laid this matter—we consolidated those 
whole reports. We had had a census taken. We had con­
solidated that whole business and made a map that we saw 
all the way across the board room. Every board member 
could see the zones of the separate schools proposed. Only 
one of those school zones was changed, and that was to 
extend one block further than their—than the original plan

W. A. Bass—for Defendants—Cross



167a

called for. It didn’t make much difference one way or the 
other. There weren’t very many children, either white or 
colored, in that block. That was the only change that was 
made, in that zone [94] block.

Q. I still ask you how many schools in Nashville would 
be affected if you had not based upon zones, your residen­
tial zones? How many schools would be affected if an 
order for total desegregation went down? A. I suspect 
every school in the city practically now. See, Mr. Looby, 
any day you answer that question, your answer may be 
based on facts that you had when you prepared the an­
swer, but due to the shifting in population, we could have— 
Take— I’ll illustrate what I ’m trying to say. Over at Lock- 
land School when we opened there, we didn’t have a single 
Negro child residing in the Lockland School territory. 
Today there may be one. I would guess that practically 
every school in the city.

Q. Based upon the census which you took? A. Based 
upon the zones which the Board adopted.

Q. All right, based upon the zones, you are saying there 
would be Negro children in every school in Nashville? Are 
you saying that? A. I ’m saying that might be true now. 
Of course, we had a group of schools last fall—

Q. (Interrupting) I ’m not talking about possibility. I ’m 
talking about the actuality, not the possibility of what may 
happen a hundred years from now. But based upon the 
[95] zoning which you made last year, how many schools 
would be affected? A. I don’t recall. The record is over 
there. It will speak for itself.

Q. Do you know? A. No. I say I don’t recall the num­
ber. I think there were eight or ten maybe that didn’t have 
a single Negro child in them.

Q. How many schools in Nashville? A. Well, they

W. A. Bass—for Defendants—Cross



168a

opened the new school out on Twelfth Avenue after I 
retired.

Q. Well, at the time that the— A. (Interrupting) There 
were thirty— I guess there are 36 or 37 elementary schools 
today.

Q. Assuming then that there are 37, you are saying that 
37 schools would be affected in a desegregation order! A. 
Assuming what!

Q. Assuming that there was an order for total desegrega­
tion, you are saying that 37 elementary schools of Nashville 
would be affected! A. They might be. I said a moment 
ago Lockland School last September did not have a single 
Negro child residing in it.

Q, And there are several others in the same category! 
[96] A. There were eight or ten as I  recall, but I  won’t 
make a positive statement on the exact number because I 
don’t recall it.

Q. Well, Mr. Bass— A. (Interrupting) I ’ve been sick 
since last—the 20th of last May.

Q. You had to form an opinion! A. Yes, I did.
Q. To submit to the district court, and you had all that 

information available to you! A. Yes, sir.
Q. And why didn’t you use that information! A. We 

did use it.
Q. Well, can you give me the results of that now! A. 

We used it in preparing the original first-grade proposi­
tion. And we are asking that that plan be continued, and 
add the second grade to it.

Q. You say you used it in preparing the plan for the 
first grade! How many schools were affected by that! 
A. All of them except eight or ten. The exact number I 
don’t recall.

Q. Can you explain to the Court why there are only nine

W. A. Bass—for Defendants—Cross



169a

colored students in the desegregated— A. (Interrupting) 
I would like to ask you a question: [97] Why did those 
who didn’t go ask that they not be sent there, made request 
for transfer?

Q. Well, the schools were not affected then, were they? 
A. (The witness did not reply.)

Q. How many schools now are there in which there are 
first-grade Negro students? A. I didn’t get your question.

Q. How many schools in which there are first-grade 
Negro students? How many schools there were at the 
time you retired? A. We had— When I retired from the 
City Schools, there had been six schools that had a child 
for one or more days.

Q. And that is six of the thirty-seven. A. One of those 
schools had one child for one day, and that night (I be­
lieve it was that night) somebody bombed the building. 
That left five existing schools at that time who had one or 
more Negro children.

Q. But there were six schools that were affected of the 
thirty-seven? A. That’s right.

Q. I see. And that ratio would hold the same in all the 
grades, wouldn’t it? A. Had those children not asked for 
transfers, there would have been a lot more schools that 
had one or more Negro [98] children in them.

Q. I thought you said there were seven, and one asked 
for a transfer. How many schools in which there were 
Negro students eligible based upon the zoning system? A. 
You will have to ask that question of Mr. Oliver because 
he has handled that problem. I don’t know it,

Q. You don’t know. So that didn’t enter into your opin­
ion? A. My opinion— My— My judgment— It’s more than 
an opinion. My judgment regarding the proposed scope of 
this next step was based on our experience plus what I 
knew about the City Schools of Nashville.

IF. A. Bass—for Defendants—Cross



170a

Q. And it was not based upon the number of schools that 
would be affected? A. Not at all. I— I assumed in making 
that recommendation that every one of them would have 
one or more Negro children in it.

Q. And knowing the housing situation in Nashville and 
with the zoning that was made—the zoning which was re­
ported, you still say that that’s true, that all 37 schools 
would be affected? A. Potentially they could all be af­
fected.

Q. What do you mean by potentially? A. Well, I mean 
that there—there could be Negro [99] children in every 
one of the elementary school zones in the city.

Q. Would that statement be true today? A. Today?
Q. Yes, sir. A. I say I ’m assuming it would be.
Q. Is that so? A. You take in this—this growth out here 

towards Ward-Belmont—Ward College—what I mean, 
Belmont College. There’s been such a change in the popu­
lation out there that it’s hard to tell what school zone 
they would be in.

Mr. Looby: That’s all.
Mr. Hunt: That is all, Mr. Bass.
Further this witness saith not.
Mr. Hunt: That concludes the defendant’s testi­

mony.
The Court: All right. Any proof?
Mr. Looby: (Reply was inaudible.)
The Court: How is that?
Mr. Looby: We have some proof reflecting on this 

plan.
The Court: All right. Call any proof you have.

W. A. Bass—for Defendants—Cross



171a

[100] H er m a n  H. L ong , c a lle d  a s  a  w itn e s s  in  b e h a lf  o f  
th e  p la in t i f f s ,  b e in g  f i r s t  d u ly  sw o rn , te s t if ie d  a s  f o l lo w s :

Direct Examination by Mr. Williams:
Q. This is Dr. Herman H. Long! Is that your name, sir? 

A. Yes, sir; that’s right.
Q. Dr. Long, where do you live? A. I live in Nashville 

on Phillips Street, 1611.
Q. How long have you lived here, sir? A. About 15 

years.
Q. What is your occupation? A. I work in the field of 

race relations for the Board of Home Missions for the 
Congregational Churches. We have offices at Fisk Uni­
versity. I am a psychologist by training.

Q. I see. Since you have mentioned your training, will 
you state your professional qualifications please or educa­
tional background and qualifications? A. Bachelor’s degree 
from Talladega College in Alabama and master’s degree 
from Hartford Seminary Foundation and the doctorate 
degree in Psychology from the University of Michigan, Ann 
Arbor, Michigan.

Q. Did you accept the job with the American Missionary 
Association immediately after acquisition of your doctorate 
or have you engaged in other occupations? [101] A. Well, 
I taught for a while before accepting the work in race 
relations. I taught in Miles College in Birmingham, and 
I was Dean of Instruction at Miles for a year before I 
entered—followed up my graduate work and then came 
back in the field of race relations.

Q. How long in all did you teach at Miles College? A. 
Four years.

Q. Four years. Is that a junior college or— A. It was 
a regular four-year college.

Herman II. Long—for Plaintiffs—Direct



172a

Q. All right, sir. I believe the agency in which yon work 
is known as the Department of Race Relations at Fisk 
University. Is that correct! A. Yes, it is.

Q. That is located here in Nashville! A. That’s right.
Q. How long has it been here in Nashville! A. For 16 

years.
Q. Sixteen years. Dr. Long, what are the functions of 

the Department of Race Relations! A. Well, we are a 
research and consultative agency in the field of race rela­
tions. Our services are made available to communities and 
to organizations in the community who wish to use our 
services in the field.

Q. Do your services relate to the furnishing of [102] 
scientific data and so forth with reference to various prob­
lems which may be related to interaction of Negro and 
white people and integration and desegregation of Negro 
and white people in various areas of life! A. Only on the 
occasion that we may be called into some consultative role 
with the community where we are dealing with a concrete 
set of problems that may relate to such relationships.

Q. Have you had any experience with the desegregation 
problem in the city or county public schools in the United 
States! A. Not directly except through indirect roles we 
have had in some community situations like Baltimore, 
Maryland. We were there at the invitation of the Gov­
ernor’s Interracial Commission and the Mayor’s Interracial 
Commission.

Q. Will you just tell the Court what you did in Balti­
more! A. Well, this was essentially an effort the year 
before the schools were desegregated in that community to 
lay a basis of fact for the community in terms of what the 
problems were in the community that needed to be solved 
in order for all citizens to have an equal opportunity.

Herman H. Long—for Plaintiffs—Direct



173a

Q. Did you conduct a survey there! A. We conducted a 
survey and—

[103] Q. What was that called! A. Well, it was called 
the Baltimore Community Self Service.

Q. I believe it obtained some national recognition, did 
it not! A. It was featured over the CBS Television Sys­
tem.

Q. You might tell us what you did in that survey. A. 
Well, we essentially took an inventory of what the practices 
were in Baltimore in the field of education, in the field of 
housing, in the field of employment, in the field of social- 
welfare services, hospital services, what the practices were 
in these fields that affected the status of minorities, espe­
cially the Negro group in the community in terms of whether 
or not these practices were providing for them equal op­
portunity along with other citizens in the community.

Q. Did you— In connection with that and in connection 
with the education part of it, did your survey include an 
evaluation—an ascertainment and evaluation of the atti­
tudes of school teachers, for example! A. Yes. One phase 
of it dealt with— At that time, Baltimore had separate 
Negro and white schools, and we were concerned— I might 
say that the Superintendent of Schools was a member of 
the Commission-—of the Committee of the [104] Survey 
which dealt with these problems as was the one of the 
Commissioners of Education for the state at large.

We attempted to see whether or not, for example, the 
physical facilities under the school system were equal. We 
found some differentials especially as between Negro and 
white schools where the age of—age of buildings was con­
cerned, equipment, and so on.

We did also ask the teachers in these schools whether 
or not they believed they would have any difficulties in

Herman H. Long—for Plaintiffs—Direct



174a

teaching Negro and white students in the same class, as­
suming that the school board were to—were to integrate 
the school system.

Q. What were your findings with particular regard to 
the teachers? A. We— We were, I suppose, surprised to 
learn in a way that the teachers felt that—that there 
would be some difficulties, that they wouldn’t—they wouldn’t 
be able successfully to—to teach Negro and white children 
in the same classes.

Q. Did all of the teachers feel that way? A. Well, I 
would say about the largest percentage. About 30 per cent 
of them felt that way. You had a distribution of—of re­
sponses.

Q. Of varying shades of attitudes? [105] A. Yes. And 
yet the—the—the following term the school was success­
fully desegregated, and Negro students were integrated in 
classes and the teachers did teach them fairly successfully 
according to reports from the board.

Q. Did Baltimore have the aspects of a southern com­
munity with regard to racial segregation or a northern 
community? A. Well, I think Baltimore in some respects 
wms more southern than Nashville if you mean—if you 
mean the extremes to which the practice of segregation 
can be taken. It certainly had segregated schools just as 
Nashville has. It had— In the downtown department stores, 
it had separate Negro and white facilities.

Q. Does that exist in Nashville? A. It exists— It exists 
in Nashville, and even some of the department stores in 
Baltimore don’t extend credit accounts to Negro clients. 
This does not obtain in Nashville to my—to my opinion.

Q. Is there a custom in Baltimore against allowing 
Negroes to try on clothes in some of the department stores? 
A. And hats especially.

Herman H. Long—for Plaintiffs—Direct



175a

Q. Does that exist in Nashville? A. I don’t believe it 
does to any large scale. Maybe there are some small ex­
ceptions, minor practices.

[106] Q. Have you also— Have you been called upon 
by any agency in Nashville (that is, in an official role as 
head of the Department of Eace Relations) to render any 
technical assistance to any agency in Nashville? A. Not 
in an official capacity. I have had the good fortune to be 
invited to serve as a consultant at one of the workshop 
sessions of the Nashville School System a year ago last 
September when they—•

Q. (Interrupting) Was that when— A. (Interrupting) 
These were integrated— These were integrated Negro-and- 
white-teacher orientation sessions. I was present at one 
of the workshop sessions at the invitation of the board.

Q. Were you advised that the board had been having 
these sessions previously, or was this a new thing? A. It 
was my impression that—that this was an innovation of 
the School Board.

Q. And this was July of—the summer of 1957? A. This 
was September 1956. I believe this was probably the second 
year. I think they have had three years nowT of integrated 
teacher-orientation workshops at the beginning of the school 
term.

Q. In your capacity as consultant at that workshop, were 
you able to draw any conclusions with regard to the
[107] attitudes of the teachers in Nashville with regard 
to desegregation? A. I— I couldn’t say that I had any 
reliable impressions. The— As much of an exchange as 
there was in these sessions, the only recurring comment 
that—that I remember was one of concern on the part of 
the teachers and the principals who w7ere there (I assume 
there were principals in the audience) that they would re­
ceive help themselves in dealing with the difficult problems

Herman II. Long—for Plaintiffs—Direct



176a

of integration, that they needed help from somewhere, from 
somebody to help them in dealing with the protests, the— 
the attitude of—of—of complete unconcern on the part of 
some element of the public, people who were responsible 
for the anonymous telephone calls and so forth.

Q. I see. Then it was with regard to matters outside of 
the school room that the teachers indicated that they needed 
help? Is that correct? A. I had the impression that they— 
that they felt that they could deal with the educational 
problems in the classroom and in the school situation if— 
if they had adequate support and assistance in dealing 
with these irritations which come from the extreme ele­
ments outside the classroom situation, those who were op­
posed to integration, desegregation.

[108] Q. Dr. Long, who asked you to appear as a con­
sultant at that workshop? A. The invitation came, I be­
lieve, from the school superintendent. I believe I received 
a letter from Mr. Bass to that effect.

Q. Who was superintendent at that time? A. Who was 
superintendent at that time.

Q. And that was one workshop. How long did that last?, 
A. I think it was a one-day workshop.

Q. A one-day workshop. A. Although some phases of 
it extended over two days or more.

Q. But your services were required for only—asked for 
only that one day? And you appeared merely as a lecturer? 
Is that correct? A. As a discussant on a panel.

Q. As a discussant on a panel. All right. But ever since 
the first decision of the Supreme Court and down to the 
present date your agency is and has been available to the 
Nashville Board of Education, has it not? A. Yes.

Q. And that’s the only occasion you’ve been called on? 
A. To my knowledge, yes.

Herman H. Long—for Plaintiffs—Direct



177a

Q. You have been called all over—in other areas of
[109] the country but not here in Nashville? A. Yes, sir.

Q. Dr. Long, based on your experience in race relations, 
could you give an opinion as to the desirability, as to the 
feasibility and desirability of the plan which has been pro­
posed by the Board of Education here today to extend 
desegregation over an additional 11-year period? That is, 
in terms of race relations? A. I— I think I can. I am 
afraid that a large number of people tend to believe that 
a special kind of plan used by a school board to desegregate 
the schools is the final test of whether or not you will have 
effective desegregation, and the assumption seems to be 
that if the plan protracts the process of change over a 
long period of years (I think this is—is basic to the 
Nashville proposal) that you will have a smoother plan 
of operation and you will have less difficulty. I believe that 
this assumption isn’t entirely sound in looking at the ex­
perience of other school systems and the experience I have 
had generally in the field of race relations for several 
reasons:

One reason is that any proposed change in this field as 
well as in others takes place within a climate of opinion 
and a climate of expectation that is created by the kind of 
policies which a Board of Education or which any other 
board, [110] whether it is a board of—of an industry, 
creates in the public mind. I think it has been fairly well 
shown that when policies enacted by such boards are vacil­
lating policies (that is, they do not proceed with clear 
pronunciation of purpose and without qualification) that 
when the processes of change in the school system are at­
tempted, you get resistance because the public does not 
expect that the board means what it says in many of these 
instances.

Herman H. Long—for Plaintiffs—Direct



178a

Q. Can yon give an illustration of that! A. Well, I 
think one of the best examples is—is—is the case of the 
action of the school board in Delaware, one of the first 
school systems that was desegregated. There, you had a 
board deciding to—to desegregate the schools and, because 
of pressure, withdrawing its decision and referring it to 
the State Board of Education, and the State Board of 
Education refusing to grant the local board the authority 
to move forth, and you had— At the opening of school, you 
had actual difficulty in the community because the com­
munity didn’t know what to expect on the part of its obliga­
tions in the—in the field of education. I think there are 
some other examples.

Q. What is the positive side of that! Can you give an 
illustration of the positive side of that! A. I think the 
positive side on the policy matter is—[111] is fairly well 
represented in the successful efforts of school integration 
in St. Louis, Missouri, in Washington, D. C., and in Louis­
ville, Kentucky, recently, in which cases the boards 
adopted—

Mr. Hunt: Just a moment. May it please the 
Court, I think this witness should be qualified as 
to what he knows about Washington and St. Louis 
before he expresses an opinion on it. He has qualified 
himself, I believe, to express an opinion on Balti­
more. I don’t believe he has been qualified to ex­
press—

The Court: He might briefly go into that.
Mr. Williams: I believe Counsel is correct, if 

Tour Honor please.

By Mr. Williams:
Q. Are you familiar with those situations, Dr. Long! 

A. I visited St. Louis, and I talked with members of the

Herman H. Long—for Plaintiffs—Direct



179a

supervisory staff in St. Louis, Missouri. I know— I’ve been 
in direct contact with the school authorities in Baltimore. 
I can’t say that’s true with Louisville. I haven’t been in 
the Louisville situation, and I can’t—only know it except 
as I have studied the reports which have come from the 
superintendent’s office.

Q. All right, sir. Do you have any further reasons that
[112] you wish to point out to the Court, the reasons under­
lying your opinion of this Nashville plan! A. The second 
■—the second reason is I believe that—that one of the 
assumptions is—is that if you minimize the change, you 
reduce the resistance. I believe that the character—- We 
need to analyze the character of the resistance, and if one 
looks—if we look at our experience in Nashville last year, 
the people who constituted the protesters and the mobs, 
the people who were arrested and fined, either fined in 
court or put under injunction in the court, expressed an 
attitude which was completely unreasoning as to any kind 
of change. I think the pattern that is expressing itself is 
one in which any kind of change toward desegregating 
schools or any other institutions will meet resistance on 
the part of this element of the population. And I see— 
I see— I see that the merits of whether or not the change 
is done in 12 years or whether it’s, done in one year 
doesn’t enter into this—this kind of resistance effort be­
cause it is fairly completely unreasoning and inconsiderate 
effort. I t’s not an effort to meet the issues in terms of any 
kind of statesmanship.

Q. Is it your conclusion then that the protraction of 
the period during which desegregation is attempted will 
not alleviate the conditions created by the people who are
[113] bitterly opposed to desegregation as a matter of 
principle? A. I— I see nothing to—to leave the conclusion

Herman H. Long—for Plaintiffs—Direct



180a

that a 12-year plan will reduce the actual resistance on the 
part of the extremist elements in this community to de­
segregating the schools.

Q. Can you explain that"? A. Well, last year we only 
desegregated the first-grade level. There were only nine 
Negro children involved in six schools, and yet we had a 
demonstration which approached tremendous extremes in 
this community. There wasn’t even a commitment as I 
understand the proposal to continue desegregation the 
second year. This was a minimal amount of change, and 
yet you had in effect a maximum kind of resistance.

In other words, it wasn’t a resistance which was predi­
cated on the assumption that this was—this was complete 
desegregation. In other words, it was protest against even 
the most minor kind of change.

Q. All right, Dr. Long. Now, I want to ask you this: 
What are some of the community resources which are or­
dinarily mobilized in an attempt to solve a race-relations 
problem? A. Well, I— This varies with—with the com­
munity.

Q. Well, with particular application to the education 
problem, what in your opinion would be some of the re­
sources? A. Well, of course, parent and parent-teacher 
groups [114] are a logical and necessary community re­
source. Chambers of Commerce— Although this isn’t a 
direct function, they have a very important indirect func­
tion in setting the climate of leadership in the community. 
The organizations that are representative of minority 
groups in the community are important to have—

Q. (Interrupting) With reference to that, may I ask you 
this, Dr. Long: Based on your experience as a race- 
relations expert, is it in your opinion possible to arrive 
at a plan which will approach a solution of the race-

Herman H. Long—for Plaintiffs—Direct



181a

relations problem in education without close consultation 
with the minority group itself in the community? A. Well, 
I— I wouldn’t think that it would be—be possible to have 
a meeting of minds on an issue of this sort if—if the 
persons involved most directly aren’t—aren’t consulted 
and involved in the consultationskip.

Q. Is it your opinion, carrying that further, that the 
opinions and ideas and desires of the minority group should 
be considered if one is to reach a peaceful solution of a 
race-relations problem? A. I think so as long as they 
represent responsible leadership groups in the community.

Q. You have lived here in the community before and 
during the desegregation problem in the City Schools here?
[115] A. Yes, sir.

Q. Do you know whether or not the Nashville Board 
of Education has made any attempt to mobilize those com­
munity resources? A. My knowledge is very sketchy 
there. I couldn’t say that I—that I did. I— I know that 
the—from his own report that the school superintendent 
has spoken to a lot of groups, parent—parent groups at— 
at local schools. Now, I had— My impression was that this 
was primarily in the white schools and not among the 
Negro parent-teacher groups.

Q. Dr. Long, do you know whether or not certain agencies 
in the community itself have voluntarily come forward and 
sponsored community workshops to try to attack the prob­
lem of community sentiment at any period of time since 
the Supreme Court decision? A. Yes. The Nashville Com­
munity Relations Conference has held two community-wide 
workshops for— I think for the purpose of helping to build 
some constructive opinion in this community.

Q. When and where were those held, sir? A. I— The 
first workshop was held at the Jewish Community Center,

Herman II. Long—for Plaintiffs—Direct



182a

I believe two years ago or three years ago now. I am not 
quite certain. In the following year a second workshop 
was held at the Belmont Methodist Church.

[116] Q. Do you know how many participating groups 
there were in the first workshop? A. I don’t know the 
actual number of groups that were involved. I would say 
that in attendance at the general session there were some 
six hundred people present that evening.

Q. This was at the Jewish Community Center? A. 
Jewish Community Center. And about the same number 
the following year at the meeting at the Belmont Methodist 
Church. That’s a slightly larger group.

Q. Did you attend those workshops? A. I participated 
in the workshops.

Q. Did any member of the Board of Education appear or 
speak or take part in either of those workshops ? A. I don’t 
remember, and I couldn’t say that there was or was not.

Q. At the Belmont Methodist Church Workshop, were 
any experts other than—any race experts in the school— 
desegregation situation called in from outside the state? 
A. Yes. There were representatives from both the Balti­
more Public Schools and the St. Louis Public Schools who 
were present at these workshops mainly giving and evaluat­
ing their own experience in the field of school desegregation.

[117] Q. Were these workshops conducted by Negroes al­
together or were there other races? A. These were inter­
racial groups.

Q. What would you say with regard to the respective 
proportions of the audiences at these workshops racially? 
A. I—I would guess that racially Negroes were about 20% 
of the group—of the total group. I t’s a very rough guess.

Q. Do you know of your own knowledge whether find­
ings were promulgated as a result of either of these work­
shops ? A. I believe the second workshop— The first was

Herman H. Long—for Plaintiffs—Direct



183a

not an attempt to reach any kind of consensus on the part 
of the people who participated. As a matter of fact, the 
second was not organized for the purpose of passing resolu­
tions, but there were conclusions out of the individual dis­
cussion groups reached by—by these discussion groups, 
and the— If there was any consensus as I remember it, it 
was a fairly common consensus, and it was later expressed 
to the School Board, that the School Board begin some effec­
tive desegregation as of September 1957 or ’56. I ’ve for­
gotten which year it was now.

Q. I see. Can you name a few of the organizations who 
sponsored that second workshop ? A. I believe the—among 
the original sponsors was the [118] United Church Women, 
the Jewish—

Q. Is that a white organization? A. White. Well, it’s 
interracial.

Q. Interracial! A. Yes. The Jewish— Federation of 
Jewish Women, I believe was another sponsor. The Nash­
ville Council of Churches I believe was another sponsor.

Q. Are all these interracial organizations ? A. Those are 
interracial. The Parent-Teachers— I ’m not sure about the 
Parent-Teacher Association, but I believe the Negro ad­
junct of the Parent-Teacher Association was one of the spon­
sors of it. I think you can get better—you can get better evi­
dence than I can give you on that because I don’t quite re­
member the details.

Q. It was a large number of organizations ? A. Quite a 
large number. I believe the second workshop had some 26 
organizations as sponsors.

Q. In your opinion, the community forces which were 
mobilized and waiting to be used in those two workshops, 
have they been utilized by the Board of Education in the 
City of Nashville in trying to approach a solution to this

Herman H. Long—for Plaintiffs—Direct



184a

problem! A. I don’t know that—that they have. I can’t 
say that they have.

[119] Q. Does the plan which the Board is proposing 
here today— Does that seem to indicate that those re­
sources have been utilized! A. Would the plan itself in­
dicate that these sources-—

Q. (Interrupting) Well, let me re-phrase that. Would 
the evidence which the Board has offered here today seem to 
indicate that those resources have been utilized! You have 
heard the evidence. A. I— I don’t— I don’t believe that— 
that the plan reflects (It may. This is merely an opinion.)— 
reflects an assessment of the—of the attitudes and opinions 
of this segment of the community that have been involved 
in these workshops.

Q. That is exactly what I am getting at. Thank you.

Cross Examination by Mr. Hunt:
Q. Dr. Long, it was not clear to me, your exact relation­

ship to Fisk University. Are you part of Fisk! Are you 
employed by Fisk as a professor or otherwise! What is your 
relationship to Fisk! A. I am Director of the Race Rela­
tions Department of the Board of Home Missions (This is a 
long one), the Congregational Christian Churches, which 
has offices at Fisk University. Fisk is church-related. It is 
Congregationally [120] related so that explains it.

Q. Your relationship is that you have offices there, but 
you are not part of the university as such. A. Not as an 
operating unit of the university.

Q. You are reasonably familiar with the university! A. 
Yes. I—I should say that at one stage of our relationship, 
we were actually a unit of the university when Dr. Johnson 
was both director of the Social Science Department and of 
our race-relations program.

Herman II. Long—for Plaintiffs—Cross



185a

Q. Is Fisk University a segregated school? A. No, sir. 
It is not.

Q. What is the proportion then of white and Negro 
students in Fisk if it is not segregated! A. It is— If you 
mean by segregated, by policy, it is not segregated by 
policy.

Q. It is not segregated by policy. It is segregated in fact 
in practice ? A. It is not segregated in practice. It accepts 
white students.

Q. How many white students are there now! A. I think 
there must be about three or four there now. I ’m not sure 
exactly.

Q. What is the enrollment of the university, the total 
enrollment approximately! [121] A. I  think around 750 is 
the—

Q. And you think there are three or four white students ? 
A. Three or four white students.

Q. Now, I gathered the impression that you were testi­
fying as an expert in race relations and not as an expert in 
education. Am I correct? A. Ah, I—I would think— You 
embarrass me to try to—try to declare myself as an expert 
in one or the other field.

Q. Well, I think that is:— A. (Interrupting) I think I 
could qualify as an expert in either field because of the 
nature of my training and experience.

Q. Then you were testifying in both. Then, as an expert 
in education, are you familiar with a book quite recently 
published by the Macmillan Company by Dr, Henry H. Hill 
of Nashville, Changing Options in American Educationf 
A. No, sir; I am not.

Q. It is quite new. I  wondered. Now, I wanted to see 
to what extent as an educator your views and his disagree, 
and I wanted to ask you a few questions about opinions ex­

Herman H. Long—for Plaintiffs—Cross



186a

pressed by Dr. Hill and see wherein you may agree or dis­
agree with him. A. I wish you hadn’t mentioned the name 
of the man. You [122] put me in the position of differing 
with a man whose—ah, whom—whose reputation I know and 
whom I know in the community.

Q. Now, I am reading from this book, and I would hand 
you another copy but this is the only one I have. I assure 
you I will try to read accurately. Page 42:

(Eeading) “There are admitted difficulties in de­
segregation which are clearly seen by the moderates. 
Negroes in the South as a group rank below the whites 
in health, in general educational achievement, and in 
other ways.”

Now, would you agree or disagree with that statement 
of opinion? A. I ’ll almost have to have you read that 
again. You say Negroes in general?

Q. Negroes in the South as a group rank below the whites 
in health, in general educational achievement, and in other 
ways. A. I couldn’t— I couldn’t accept that. What he 
means by health, I  don’t know. And there are all kinds of 
statistics which you can quote in the field of health where 
you may have Negroes not as much at a disadvantage as 
compared with whites, and in other areas of—of the health 
field where they are obviously below whites in terms of 
incidence of certain kinds of illnesses or sicknesses. That’s 
the kind [123] of general statement that I— I— I would 
have to qualify before I could agree with it.

Q. You don’t agree with it unqualifiedly. All right. A. 
I would certainly agree that there are certain educational 
differentials as between Negroes and whites as a group. 
There may not be differentials in some—in some school 
systems. I don’t know what—about the Nashville School 
System here.

Herman II. Long—for Plaintiffs—Cross



187a

Q. Here is another statement on page 46. I want to ask 
your opinion as to this:

(Reading) “After an initial apparent acceptance of 
the Supreme Court’s decision, or at least a period dur­
ing which the voices of the moderates were heard, there 
has come a hardening reaction against this decision 
in many of the southern states where new organiza­
tions and voices have been raised in opposition and 
where the voices of politicians and demagogues have 
been in crescendo.”

Now, the particular part I wanted to query you about: 
Do you agree that there has come a hardening reaction 
against the decision in the Brown case in the South! A. 
As qualified by Mr. Hill, I would have to agree; and if you 
see the context there, he says, “the hardening of reaction as 
expressed in the voice of—political voices of the South.”

[124] Q. (Reading) “There has come a hardening 
reaction against this decision in many of the southern 
states where new organizations and voices have been 
raised in opposition.”

A. Right.

Q. (Reading) “And where the voices of politicians 
and demagogues have been in crescendo.”

A. Right. I  assume that he is referring to the rise of the 
citizens—the White Citizens Council, the Federation for 
Constitutional Government, the Ku Klux Klan, and similar 
organizations which have organized deliberately to circum­
vent the Supreme Court’s decision. I assume on the other

Herman H. Long—for Plaintiffs—Cross



188a

hand when he refers to politicians, he refers to the kind of 
legislation which has come out of the legislatures of the 
South aimed at curtailing the expressions of the NAACP 
and other groups which are supporting the Supreme Court’s 
decision. Of all of the repressive legislation, I think the 
Southern Education News reported some 84 pieces which 
had been enacted. Now, this is what I call political reaction, 
and with that I would agree with Mr. Hill.

Q. Now, would you agree with this?

(Heading) “It is necessary, however, to be realistic. 
The majority of whites in the South want to attend 
school with whites only. The Negroes want the option 
of attending white schools. There is no pat solution to 
[125] this impasse.”

A. Would I agree with it?
Q. Yes. A. I don’t know what the majority of white 

people want. I frankly don’t know. I would be hesitant to 
say what the majority of Negroes want or feel. I think that 
we are dealing with an area of experience that is entirely 
new to all of us. This is the area of the great unknown. I 
think we have the resources to meet the challenge of this 
kind of experience.

Q. Now, another statement on page 51:
(Reading) “ . . . Just as it was impossible to enforce 

the prohibition laws of the land in areas where prohibi­
tion was contrary to the mores of the people, just so 
it will be relatively impossible to enforce, to any great 
degree, mixing of the races in areas where the pat­
tern of living and thought is equally opposed to de­
segregation.”

A. Do I agree with the statement?

Herman H. Long—for Plaintiffs—Cross



189a

Q. Do you agree with that? A. I don’t agree with the 
statement.

Q. You can give your reasons, of course. A. Well, ex­
perience has proved to the contrary. You have now out of 
the nine states—-of the 17 states that were originally operat­
ing on the basis of segregated schools, [126] you have nine 
of those states which have begun desegregation. You have 
over 300,000 or 350,000 Negro children in integrated schools 
within three years’ time. You have a complete—almost com­
plete desegregation of the school systems of West Virginia. 
All of these instances were where people had the same at­
titude toward desegregation that I  presume we have in 
Nashville to a more or less degree.

Q. Now, speaking as an educator do you agree with this 
statement on page 57:

(Reading) “Regardless of religion or color or gen­
eral conditions, children do learn somewhat better when 
the group is relatively homogeneous.”

A. That depends on whether you mean homogeneous with 
reference to what. You are using a rather big term. People 
can be homogeneous with reference to intelligence. They 
can be homogeneous with reference to a number of things.

Q. You agree with the statement, as I understand, if you 
define homogeneous? I mean do I correctly state your posi­
tion? I am not seeking to misrepresent it. A. No, I—I 
wouldn’t think you would. I—I don’t know frankly. I—I 
would think that children of relatively equal ability would 
achieve in terms of the rudiments of learning, would achieve 
better because they are challenged more by each other; but 
obviously this is not a racial [127] factor, so I—I don’t 
necessarily see its pertinence.

Q. I think that statement must be connected with Dr.

Herman H. Long—for Plaintiffs—Cross



190a

Hill’s earlier statement that in the South the Negroes as a 
group rank below the whites in general educational achieve­
ment. Now, he has laid the premise that he thinks they are 
not homogeneous, and I believe you didn’t express an opin­
ion on that. Am I right? A. Well, you can’t talk about a 
difference in educational achievement and homogeneity as 
being the same thing. As a— As a group you may find that 
as a— If you take the Negro population as a whole, you 
may find a difference of about two-grade level in achieve­
ment as compared with whites, but if you would take a 
segment of fourth graders, of fifth graders, or sixth graders 
of Negro students, you may find some of those sixth graders 
achieving at the eight or ninth grade level or even higher; 
and you would find the same differential within the white— 
a group of white students at the same age level.

Now, if you put those two—two groups of students to­
gether, those that would be homogeneous as to achieve­
ment would be both Negroes and whites. It wouldn’t be only 
the Negroes or only the white students.

Q. Now, I want to read another statement from Hr. Hill, 
and see if you agree with this. I am going to read two 
[128] sentences and let you comment on the two. A. Hr. 
Hill did not say homogeneous as to race, did he, in that 
statement ?

Q. He said homogeneous. He did not say as to race. I 
think the language carries the clear implication that he was 
talking of race because the section is on segregation. I 
think that is what he meant, but he said homogeneous.

Now, here are the two sentences, and I would like your 
comment, whether you agree or disagree and then your 
reasons:

(Reading) “ . . . The point is that schools cannot be 
satisfactory learning places when they are bitter and

Herman H. Long—for Plaintiffs—Cross



191a

disturbed over some of the contentions of their elders. 
Presumably the Supreme Court had such a situation in 
mind when they fashioned the phrase, ‘with all deliber­
ate speed.’” (pp. 58-59)

Do you agree or disagree with that? A. Any statement 
which has the word “presumably” in it doesn’t—doesn’t—is 
—is ambiguous as to—uncertain as to its own meaning so I 
couldn’t very well say whether—what the Supreme Court 
had in mind.

Q. Well, you don’t presume the Supreme Court— A. 
(Interrupting) And I don’t presume to say that he has 
said what the Supreme Court had in mind, that I even agree 
with it. I couldn’t agree with it.

[129] Q. I will read the sentence again. I think it is clear 
what he said. And then we are asking your opinion. The 
sentence is :

(Reading) “Presumably the Supreme Court had such 
a situation in mind when they fashioned the phrase, 
‘with all deliberate speed.’ ”

A. I can’t—I can’t—I can’t enter judgment on saying what 
the Supreme Court had in mind in using the term, “delib­
erate speed.” What I would call deliberate speed may be 
quite different from what Mr. Hill—

Q. (Interrupting) Now, do you agree or disagree with 
this which is near the end of his conclusion:

(Reading) “ . . .  We must go along with some kind 
of waiting period which may avoid the multiplication of 
mob scenes and continued bitterness and provide a pro­
gressive gradualism with some chance of good will and 
acceptance.”

Herman H. Long—for Plaintiffs—Cross

A. Do I agree with that?



192a

Q. Yes. A. That’s his judgment. My judgment is quite 
different. I think it’s tragic in terms of creating expecta­
tions in the public as to what the obligations of the public 
are. If you create the attitude that the jjrocess of school 
desegregation has to wait upon some kind of acceptance by 
the public at large, whatever that acceptance is, when is 
consensus [130] arrived at? Nobody knows when consensus 
is arrived at, and this plan which I understand that you 
are proposing doesn’t even propose to move one grade each 
year because it’s not moving one grade this year because 
you really— As I understand the plan, you are even back­
ing up now.

Q. How do you understand the plan? A. I understand 
that the plan means that you are proceeding—you integrate 
the second grade as of this year. When your first graders 
move into that grade level, you will accept some students 
at the second-grade level; but you are already desegregat­
ing the—the second grade by permitting these students 
to move into the second grade.

Q. How does the plan move backward under your state­
ment? A. You don’t add another year. You aren’t add­
ing another year this year. If you had added even the third 
grade, you would have moved a step forward. In other 
words, you are consolidating where you are now.

Q. Are you familiar with the publication, Southern School 
News ? A. Yes, s ir; I receive it every month.

Q. Ho you regard it as objective and impartial in its 
attempts to solve— A. (Interrupting) I think it attempts 
to be objective. I ’m not sure that it’s always impartial be­
cause it’s reported by newspaper reporters who are on 
staffs of local [131] newspapers, and I ’m sure their opinions 
are influenced by their—the context in which they work and 
report to some degree.

Herman II. Long—for Plaintiffs—Cross



193a

Q. Are you acquainted with Congressman Adam Clayton 
Powell? A. Only through reputation. I don’t know him 
personally at all.

Q. You know that he is a Negro Congressman from New 
York? A. Yes, sir.

Q. I would like to read you one of his statements quoted 
in the March 1958 issue, and ask you to agree or disagree 
with i t :

(Reading) “Adam Clayton Powell, Negro Congress­
man from New York, said in Houston that the entire 
South will be desegregated in 20 years. But he said not 
to expect integration ‘overnight.’ ”

Now, the quotation begins:
(Reading) “ ‘I don’t believe there should be immedi­

ate integration all over the South,’ he said. ‘But there 
should be a beginning, a plan in sensitive areas. Inte­
gration should start in kindergartens. In this manner, 
the problem could be eliminated in 12 years.’ ”

Now, I believe you take issue with that viewpoint? [132] 
A. I take issue with the viewpoint as—as— It expresses a 
general philosophy which—with which I concur. I take issue 
with protracting school desegregation over a 12-year period. 
I don’t think that it solves—I think I gave the reasons why. 
I think it’s— It’s the hard way around the problem rather 
than the easy way around.

Q. Did I understand that you were acquainted with the 
St. Louis situation? A. Yes.

Q. Have you read the study made of desegregated St. 
Louis Schools by Southern School News as appears in 
the issue for December 1957, or do you recall reading it? 
Let me hand it to you. (Handing document to witness)

Herman H. Long—for Plaintiffs—Cross



194a

You can see if you have read that report or not. A. I 
haven’t read this article, Mr. Attorney. I haven’t read it.

Q. Now, there is a study of desegregation at the Clark 
School in St. Louis. It states that during the first year 
of desegregation this all-white school became 50-50 and 
that within three years it nad reached a percentage of 80% 
Negro and 20% white. Would you regard that fact as 
indicating success or failure! A. Changes in the nature of 
the school population! I don’t see how that proves one way 
or the other. You have [133] got a process of change, ap­
parently a change in the area in which you have displace­
ment.

Q. This Clark School, it states, in the first year of deseg­
regation had 31 teachers, 30 white and one Negro, that 
of the 30 white teachers 24 have resigned or retired leaving 
six of the original teachers. Would you say that indicated 
success or failure! A. The resignation of white teachers!

Q. The retirement of 24 out of 30 teachers in one school! 
A. For what cause!

Q. The article simply said that they had retired or re­
signed. A. I don’t think that shows anything. That—

Q. You don’t think it shows anything! A. It doesn’t 
describe— To say that 30 teachers resigned or retired 
doesn’t say anything about why they—why they resigned 
or retired.

Q. This article further— A. (Interrupting) Whether 
they were old-age or not. You could have had an accumu­
lation of teachers who reached the retirement age in a 
school like this.

Q. You don’t think it indicates anything! A. I don’t 
know. I— You can’t reach any conclusion [134] on the basis 
of that statement.

Q. This article also states that every white teacher that 
had been replaced in that school had of necessity been re­

Herman H. Long—for Plaintiffs—Cross



195a

placed with an inexperienced teacher because no experi­
enced teacher would transfer to the school. Do you think 
that indicates success or failure! A. Well, I wish I had 
read these in context and larger context. I think it’s un­
fortunate when you—when you get teachers, that you get 
an abundance of teachers who are inexperienced in any 
school system because you need a balance between experi­
ence and youth. In and of itself, it may not be a bad thing 
because new teachers may be better trained and they may 
be younger and have more ideas and more initiative than 
the older—older teachers.

Q. You think on the whole, inexperienced teachers are 
better than experienced teachers? A. Oh, no; no.

Q. This article also says that in the first year of de­
segregation 30% of the class failed. Do you think that 
indicates success? A. I don’t know what it shows. I don’t 
know what percentage of the class failed in previous years 
before desegregation,

Further this witness saith not.

Dr. Preston Valien—for Plaintiffs—Direct

[135] Ds. P beston V a l ie n , called as a w itness in  behalf 
of the plain tiffs, being first duly sworn, testified as fo llow s:

Direct Examination by Mr. Williams:
Q. This is Dr. Preston Valien? A. Yes, sir.
Q. Dr. Valien, where do you live? A. I live in Nashville, 

Tennessee.
Q. How long have you lived here? A. Twenty years.
Q. What is your occupation? A. I am a professor at 

Fisk University.
Q. How long have you taught there? A. Twenty years. 
Q. What is your position there? A. I am Professor of



196a

Sociology and Chairman of the Department of Social Sci­
ences. I also serve as consultant on educational matters, 
and I am Director of the Phelps-Stokes Workshop which 
works with high-school teachers in 10 states of the South.

Q. When you say the Phelps-Stokes Workshop works 
with high-school teachers, what do you mean? A. I t’s a 
workshop which we have been conducting for the [136] last 
two summers drawing teachers from high schools in 10 
states of the South. I ’m director of that workshop.

Q. Is this workshop designed to improve the— A. (In­
terrupting) Instruction in secondary schools.

Q. Instruction in secondary schools.

Mr. Hunt: Will the witness speak louder please? 

By Mr. Williams:
Q. Will you speak up so these gentlemen can hear you 

please? They may want to cross-examine you about some 
of these things. I believe you testified previously in this 
case, did you not, Dr. Valien? A. I did.

Q. In January of 1957 ? A. Yes, I did.
Q. Dr. Valien, have you read the plan which the Nash­

ville Board of Education has proposed? A. I read it as 
it was published in the newspaper.

Q. The 12-year plan? A. Yes.
Q. Is that in your opinion a good plan? A. In my opin­

ion it is not a good plan.
Q. Why? A. We have engaged in—at Fisk University 

in studies [137] of desegregated situations in many places: 
St. Louis, Missouri. We have— My wife and I have served 
as consultants at University of Kentucky, with teachers in 
Louisville and Lexington. We have studied the Clinton 
situation on which we have published a pamphlet upon it.

Dr. Preston Valien—for Plaintiffs—Direct



197a

We are at the present time engaged in a study of the—of 
the Little Rock situation.

In— In— In all of the situations that we have studied 
personally as well as the literature which we have re­
viewed in connection with our studies, we have always found 
— It has been almost universally true that—that part-time 
or partial desegregation on a non-functional basis has 
usually resulted in greater confusion and greater resistance 
than desegregation on a functional unit basis. That has 
been true of the situations as studied in very great detail 
by my wife in St. Louis as my assistant, by our studies 
together in—in—in Clinton, and of course by our present 
studies going on now in Little Rock, and also of course 
our studies on Cairo, Illinois.

This plan, for example, is not sound educationally. I am 
very, very concerned—I am equally concerned as an edu­
cator myself with the welfare of the children involved in 
this plan.

The plan as set up, for example, means that a whole 
[138] generation of public-school Negro students, for ex­
ample, beginning with those who are at present this year 
in the second grade, would be denied the right to have their 
constitutional rights determined under this particular plan. 
Any student who is this year in the second grade would 
never have the right to go to a school nearer—nearer— 
nearer his home, for example.

This plan also—also makes no provision at all for the— 
for the elimination of segregation and discriminatory prac­
tices in the special classes, sight-saving classes, for ex­
ample, and other types of classes.

By the Court:
Q. What! A. Sight-saving classes and home-bound-chil­

d ren  classes.

Dr. Preston Valien—for Plaintiffs—Direct



198a

This plan also makes no provision at all for any incor­
poration of students into the vocational high-school pro­
gram which is—which is so patently unequal that-—that it 
has not been even denied by the school board itself.

By Mr. Williams:
Q. In other words, do you mean by that that in the Nash­

ville School System the vocational high-school segment is 
a separate phase of the educational set-up? A. That’s 
right. And it’s—and it’s— And it is decidedly unequal in 
its present distribution in courses [139] offered Negro 
students and courses offered white students which means 
that—that for 12 years almost or at least for the next eight 
years there would be no possibility under this plan for 
the students to get the type of training which is offered 
a Hume-Fogg if they are Negro students.

Q. Now, you have mentioned the normal functioning unit. 
I believe you gave testimony about that at the previous 
hearing. Do you mean by that a unit of grades such as the 
first six grades, the junior-high grades, and the senior-high 
grades? A. No. I meant to say a—a—a—a usual function­
ing unit of—of administrative—ah, within the administra­
tive context. We have talked, for example—I have talked 
with—with the school superintendents in Louisville, for 
example, and they have indicated that—that they have 
found it much more easy to administer a functional unit 
of operation than they would have found to have adminis­
tered a situation where one grade— There is no one grade—• 
ah, PTA, there is no one— There is no first-grade PTA, 
no first-grade lavatory, no first-grade lunch room as was 
pointed out; and the situation thereby is—is one which is 
calculated to engender tension within the school system be­
cause you have not only families—ah, families divided up

Dr. Preston Valien—for Plaintiffs—Direct



199a

in return in the sense that their children cannot go to the 
school—the same [140] school to which they both—which 
they all are eligible. You have teachers divided up because 
some of them are opposed to—to teaching desegregated 
classes and some are not. You have children that are di­
vided up because some are in classes which are desegregated 
and others are not. And so that is a plan calculated to 
engender confusion and tension, and it has usually done so.

The total plan or the—or the partial plan has—has en­
gendered more confusion where it has taken place than in 
those situations such as pointed out, St. Louis and—and 
Louisville and Washington, D. C., where a functional unit 
was desegregated.

Q. Well, now, let me ask you this: Were you here when 
Miss Brent testified, the Principal of Glenn School! A. 
Yes, I was.

Q. In the courtroom. Did you hear the illustration that 
she gave of tension in her school to the effect that the little 
first-grade Negro girl was left sitting at the table and the 
little fourth-grade white boy came and made a scene about 
the situation, the grades above the first grade not being 
segregated—not being desegregated! Now, in your opinion, 
is that an illustration of just what you— A. (Interrupt­
ing) That might well be—

Q. (Continuing) —mention there? [141] A. I don’t 
know that particular incident, but that—that might well be. 
We— We have found, for example, that when a large 
number of people are involved and intimately concerned 
with a particular social-change process, that the—that the 
transition is likely to be smoother than when it focuses on 
a smaller number and leaves a large crowd who acts as 
spectator and not—not concerned in the situation.

Q. Dr. Valien, specifically, based on your experience in

Dr. Preston Valien—for Plaintiffs—Direct



200a

these surveys that you have made, can you make a state­
ment with regard to whether or not difficulties insofar as 
community resistance may be concerned are likely to de­
crease on a protracted period for desegregation? Can you 
make a statement in that regard? A. On the basis of 
studies that we have—have—have made and have exam­
ined as well, we—it would appear to me that wherever 
the authorities take a firm position and take a firm position 
with respect to enforcement of their policies that—that 
the difficulty will be minimum. We— We must expect some 
difficulties in any form of social change, but whenever they 
take a strong position and take a strong position with en­
forcement, the difficulty would be minimum.

Now, this plan seems to me to—to—to merely extend the 
period of indecision and the period of—of—of tension, the 
period when people who do not wish to—to [142] have the 
school desegregated can feel that the issue is still unde­
cided from year to year. And, therefore, it would seem to 
me that it would—that it would merely spread the period 
of resistance over a longer period of time rather than—• 
rather than minimize the amount of resistance which would 
develop.

Q. Dr. Yalien, your Sociology Department was formerly 
headed by the late Dr. Charles H. Johnson. Is that correct? 
A. Charles S. Johnson.

Q. Of Fisk University. And I believe both under Dr. 
Johnson and under you that department is well known here 
at Nashville, is it not? A. Yes.

Q. And its resources are available and have been avail­
able to the School Board? A. That’s right.

Q. Has the School Board called on your agency for any 
assistance at all with regard to the desegregation situa­
tion? A. No, it has not.

Dr. Preston Valien—for Plaintiffs—Direct



201a

Q. The surveys which your department makes, are they 
unbiased surveys, unbiased objective surveys, or do you 
just approach it from the point of view that this is a Negro 
institution and we want to stress one side? A. No, We 
attempt, to be—We tend to be objective, [143] to present 
both sides.

Q. Do you feel that you are as objective in the publica­
tions that you make out there as Peabody College or 
Southern School News or any of the other agencies here 
in Nashville? A. We feel so. We hope so.

The Court: All right. Cross examine.

Cross Examination hy Mr. Boult:
Q. Dr. Yalien, in your testimony on the previous occa­

sion when you were here in the fall of 1956 (I believe it 
was), you testified (if I remember correctly) that you 
had never been a teacher, a supervisor, nor a principal, 
nor a superintendent in any public school system. Is that 
correct? A. That’s correct.

Q. That your training, which you detailed at that time 
and which is a part of the record, once you reached the 
stage of major emphasis in your educational training was 
in the field of sociology. Is that correct? A. That’s cor­
rect.

Q. And you have continued to emphasize that specialty 
(that is, the field of sociology) through your professional 
connection such as the one you now hold at Fisk Uni­
versity? A. Yes. But may I point out the field of soci­
ology includes education as well. There is a specialty of 
educational [144] sociology as well as sociology of race 
relations.

Q. Sociology is involved in education? A. That’s right.
Q. Have you ever in any of your activities, either gradu­

Dr. Preston Valien—for Plaintiffs—-Cross



202a

ate or postgraduate, taken courses in the techniques of 
public education, meaning the teaching of students, the 
techniques of it! A. I did—I did in my undergraduate 
training, yes.

Q. Have you ever experienced or had any experience in 
applying any of that since you got out of school, teaching 
the techniques of teaching? A. Yes.

Q. In what way? In this workshop? A. In this work­
shop, yes.

Q. Where do those teachers come from? A. They came 
from high schools in Arkansas, Alabama, Georgia, Ken­
tucky, Mississippi, North Carolina, South Carolina, Vir­
ginia, Tennessee.

Q. Where? A. Tennessee. I think I have named ten 
or eleven, haven’t I? They are all from the South.

Q. Where did they meet? A. At Fisk University.
Q. Was this an interracial meeting? [145] A. No.
Q. What race were they? A. They were Negroes.
Q. So that the workshop you spoke of was Negro 

teachers in the South? A. That’s right.
Q. Have you ever participated in any such teacher­

training workshop with white teachers? A. Yes, I have.
Q. Where was that? A. This was in St. Louis.
Q. Not in the South? A. And— And at University of 

Kentucky.
Q. Not in Tennessee? A. If you call that the South.
Q. Well, I won’t express an opinion on that. I believe 

it’s generally known as a border state. A. And I have 
participated in workshops at Peabody College. I have 
been over there for lectures and for class discussions with 
classes in Peabody College.

Q. I believe at Fisk there is a policy of non-participation 
in any civic or public affair in the City of Nashville

Dr. Preston Valien—for Plaintiffs—Cross



203a

which is segregated. Is that not true? A. That is, ah, 
involuntary segregation.

[146] Q. Such as observance of the laws of the State of 
Tennessee in previous years, if it was involuntary segrega­
tion, it was the policy of Fisk University that none of its 
faculty or people would go? A. I don’t quite understand 
what you mean.

Q. There was a time when the laws of the State of 
Tennessee required segregation which was involuntary. 
Fisk University did not participate as a policy in anything 
that came under those laws?

Mr. Williams: May it please Tour Honor, we 
object to that question on the ground that it is too 
broad to say that there was a time when the laws 
of Tennessee required segregation; and, secondly, 
on the ground that Mr. Valien wouldn’t be the proper 
individual to ask what the policy of Fisk University 
was.

Mr. Boult: I only asked him if he knew that and 
if he participated.

The Court: You might ask him if he knows that 
was a policy.

By Mr. Boult:
Q. Do you know that to have been a policy of Fisk? A. 

Well, we have— We have a policy of not participating in 
segregated—in segregated events, but we did not [147] 
have a policy of violating the law.

Q. So that for these years that you have been at Fisk, 
and how many are they? A. Twenty years.

Q. How many? A. Twenty.

Dr. Preston Valien—for Plaintiffs—Cross



204a

Q. These years that you have been at Fisk, that has been 
a policy which you have observed? A. Yes, as long as I 
didn’t break— I didn’t break the law in observing it.

Q. And you are also, I believe, a member of the Na­
tional Association for the Advancement of Colored People? 
A. I am. Yes, I am.

Q, Were you in Nashville in the latter part of August 
and the early part of September 1957? A. Yes, I was.

Q. Where were you on those occasions where there was 
disturbance and violence in the Nashville Public Schools 
or at certain Nashville Public Schools? A. I think X should 
qualify. I was in Nashville the first part of September, 
but I was not here during August. I was— I was out of 
Nashville during the month of August.

Q. You were in Nashville during the September violence 
then? [148] A. Yes.

Q. Did you leave the campus of Fisk University during 
that time? A. Well, I live off the campus.

Q. Well, did you visit the schools involved at that time? 
A. No, I did not.

Q. Did you— A. (Interrupting) Not during the time 
of the violence.

Q. That’s what I mean, during the days or the week or 
10 days in which the violence was apparent in the city. You 
did not visit any of the scenes of the violence? A. No.

Q. Do I understand that it is your recommendation at 
this time that if the size of the problem be multiplied by 12 
all at one time, then there would be less violence and less 
confusion and less opportunity for disturbance? A. Well, 
may X answer that by making another statement; that is, 
that there was only one student at Hattie Cotton School, 
one Negro student, and the school was bombed. Could you 
get a problem any smaller than that?

Dr. Preston Valien—for Plaintiffs—Cross



205a

Q. You can’t get it any smaller than that, but doesn’t 
that indicate the size of the problem? A. I  think that 
indicates the fact that this—that [149] this school was— 
became a focus for—for tension which probably would not 
have been true in the case if there had been more students 
from Negro groups there and all students had been in­
volved, all parents.

Q. Your theory is then that if all the grades at Hattie 
Cotton School had received some Negro students that there 
would have been less disturbance? A. That—that would 
be my—my feeling.

Q. And your feeling is that that would have been true 
over all of the Nashville Public School System? A. That 
would be my—my feeling.

Q. Then to a sociologist, multiplying the size of the prob­
lem diminishes the size of the results which may come from 
it? A. Multiplying the number of people who are involved 
in it increases the concern of those people and the hope 
that they will—and—and the activities on their part to 
make it work smoothly.

Q. And it also involves a proportionate number of per­
sons with an opposite point of view, does it not, in the other 
grades of the school? A. Not necessarily. And the amount 
of violence is not necessarily related and has never been 
related to the number of Negro students involved in a 
particular school. That [150] has—seems to have been a 
factor which has not been related at all. If it has been re­
lated, it’s been related in a negative way. We have had 
more violence where we have had the smaller number of 
children—Negro children integrated into the schools.

Q. But sociologically speaking, you would recommend 
that the entire system be desegregated at one time. A. Oh, 
you mean at one time?

Dr. Preston Valien—for Plaintiffs—Cross



206a

Q. Yes, sir. A. At one time. Well, it would depend upon 
the—the ability of the administrative system. My— My 
sociological training would certainly lead me to feel that— 
that the system should be—should be functionally—should 
be desegregated as functional units.

Q. That would be your sociological training— It would 
be the indication from your sociological training! A. 
That’s right.

Q. Is that the way I understand you! A. That’s right.
Q. But you do concede that the operational and super­

visory aspects related to that problem do have a signifi­
cance! A. Well, they—they have some bearing, yes.

Q. And also the ability of the forces of law and order 
to control potential disturbances, they do have a significance, 
[151] do they not? A. They do indeed.

Q. They cannot be taken out of the equation? A. They—• 
They cannot indeed.

Q. Will you concede then that sociological approach is 
not the only factor which must be considered in the solu­
tion of a human problem such as here presented? A. All 
these facts which you have been presenting are sociological 
problems.

Q. And you think then that it ought to be determined on 
a sociological basis? A. All these problems— All these 
facts you have been mentioning are sociological,

Q. You think the public school system should be admin­
istered on a sociological basis by sociologists? A. Oh, no; 
no. I wouldn’t— I’m not— I ’m not saying that.

Q. Well, you are testifying as I understand it as an ex­
pert in public education. A. Well, the public school sys­
tem shouldn’t be administered by—by a chemist, but they 
use chemists.

Q. And they also use people as principals, supervisors,

Dr. Preston Valien—for Plaintiffs—Cross



207a

and superintendents who are trained in public education, 
do they not? [152] A. Yes, they do.

Q. And you have never had any of that? A. Well, I have 
had training, yes.

Q. You have had some training? A. Yes,
Q. In your undergraduate days you say in the techniques 

of teacher instruction? A. Yes.
Q. So that your recommendation is to enlarge the size of 

the problem and diminish the potential results? A. Not— 
Not the size of the problem, the size of the people involved 
in it.

Q. And that would not enlarge the size of the problem? 
A. It would not.

By the Court:
Q. I understand you would advocate that it be desegre­

gated on a functional unit basis— A. (Interrupting) That 
would be my—

Q. (Continuing) •—rather than desegregated in its en­
tirety at one time? A. Well, it would seem to me that— 
that over a short period of time, Your Honor, that it could 
be desegregated on the basis of elementary schools one 
period, high schools in another period, and have the junior 
high school fitting in [153] there somewhere. But at the 
present—present basis of the plan, the-—the vocational— 
For example, the vocational training of Negro children 
would be postponed for at least another eight, nine, or 12 
years.

Q. What would an administrative unit include? A. It 
would include the elementary schools.

Q. What grades are in that? A. That’s from one to six, 
sir. These—these—

Q. What is the next unit after that? A. I think you

Dr. Preston Valien—for Plaintiffs—Cross



208a

would— You will probably want to get this from the Super­
intendent, but these—these vary.

Q. I just wanted to get clear what your testimony is. 
You are advocating the desegregation of one of these units 
at a time? A. That’s right.

The Court: That is all I wanted to ask.
Mr. Williams: Come down.
Further this witness saith not.

Mrs. Preston Valien—for Plaintiffs—Direct

Mrs. P reston Valien , called as a witness in behalf of 
the plaintiffs, being first duly sworn, testified as follows:

[154] Direct Examination by Mr. Looby.
Q. Please state your name. A. I am Mrs. Preston 

Valien.
Q. Mrs. Valien, do you live in Nashville? A. Yes.
Q. How long have you lived here? A. Twenty years.
Q. What is your business or profession? A. I am a 

sociologist by training and profession. I am associate pro­
fessor of sociology at Fisk on leave this year doing de­
segregation research.

Q. Just state for the benefit of the record what your 
educational background is. A. Sociology both at the under­
graduate and graduate level in Texas and University of 
Wisconsin at graduate level.

Q. What degrees do you hold? A. A.B. and M.
Q. You have done graduate work? A. At University—
Q. Beyond the A.M.? A. Oh, yes; at the University of 

Wisconsin.
Q. Have you in your work as a sociologist been called 

upon to make any investigation with reference to desegre­



209a

gation [155] in the public schools? A. Yes. I participated 
in the—in practically most of the desegregation research 
'that has been done now. I participated in the Ashmore 
study, the Negro in the Schools, Schools in Transition. I 
did the St. Louis Story which is a study of desegregation. 
I participated in doing the research in Clinton, in Cairo, 
Illinois. I have been working as a consultant to the South­
ern Regional Council doing research in Kentucky, and 
presently engaged out in Dallas, Texas, and in Kentucky 
as a social science consultant for Southern Regional Coun­
cil.

Q. Have you written any article or book concerning this 
desegregation question? A. Yes. I ’ve published in both 
Negro and the Schools and published in Schools in Transi­
tion. I ’m the author of the S i Louis Story and co-author 
of the Clinton study, and I have done numeral—numerous 
articles in the field.

Q. If my memory serves me right, I believe a copy of 
your book on the St. Louis Story was filed as part of this 
record in the last trial. A. Yes.

Q. And you are the same person who authored that book? 
A. TJh huh.

Q. Talk so she can hear you. [156] A. Yes.
Q. Have you read the plan submitted by the Board of 

Education which is under consideration today? A. I read 
the newspaper account of it.

Q. It is conceded by the defendants that that is a sub­
stantial report of the plan and it may be so considered. 
What is your opinion relative to that plan? A. Well, on 
the basis of my research, I consider the plan a—an in­
adequate plan and not at all feasible educationally or so­
ciologically.

Q. What is defective in that plan if anything? A. Well,

Mrs. Preston Valien—for Plaintiffs—Direct



210a

I think that all of the research up to this point does 
suggest that a plan where you desegregate year by year, 
you simply add to tension. You simply vie tension be­
cause only one element that is involved in a plan is so 
concerned, and the longer the plan’s drawn out, the less 
the difficulty.

I believe we do have sufficient research now in com­
munities to suggest that where desegregation has been 
done completely and rapidly, the amount of tension is 
minimized.

Q. Now, you have lived in Nashville, you say, for how 
long! A. Twenty years.

Q. And with your training and your experience both in 
[157] the work and living in Nashville, what would you 
consider to be a desirable plan for the City of Nashville 1 
A. Well, a—a desirable plan I think for the City of Nash­
ville, I—In viewing Nashville over against the numerous 
other communities in which I have visited, I think Nash­
ville is more than ready for desegregation than many of 
the other communities that have desegregated success­
fully. As I view Louisville or Baltimore or any of the 
other communities, I think our community is ready, and 
I think it could desegregate as rapidly as Louisville did, 
and I think it could if it had a school board that said 
forthrightly that this is what we are going to do because 
I think we do have citizens who are awfully anxious to 
get this behind them.

I think Nashville could desegregate its entire school 
system just as adequately, just as completely, and without 
any more friction than Louisville, Kentucky, did; and it 
did it all at one time. I think it could do it as easily as 
St. Louis because St. Louis is admitted sociologically— 
has many of the kinds of things which we in another area 
of the South suggest are peculiarly very southern. St.

Mrs. Preston Valien—for Plaintiffs—Direct



211a

Louis desegregated schools on the unit plan. They did 
elementary schools, then the high schools, but I think Nash­
ville could if it wanted to, and I think there are enough 
citizens who [158] really want to.

I think, beginning in September on the basis of its cli­
mate, it could desegregate its entire school system if it 
so chose to do so.

Q. Is that opinion based upon your training, your ex­
perience, and your observation? A. I t’s— It is based 
upon all of them, yes.

Q. And are— A. (Interrupting) I might say this: I— 
I think that the longer Nashville waits, the less likely it’s 
going to be able to do its job as efficiently and as thoroughly 
and without less tension than it would have earlier because 
I think increasingly the longer we wait, the more difficulty 
and the more tension we vie. And that’s in the nature of 
social change. That always happens.

Q. And what cities that had desegregation problems did 
you say you have visited and studied? A. Well, St. Louis 
is one; and the desegregation was done without trauma 
as you know, and although the experience was a happy one, 
it had all the dissident groups that we claim we have here. 
There was the—all of the anti-groups. There were all the 
statements which we have heard, that blood will flow in 
the streets. All of the things that you have always heard 
were said before St. Louis [159] desegregated schools. 
None of the things happened. There— There were in­
stances as you know, people who were unhappy in Louis­
ville. As you know, Louisville had a very happy experience. 
So there is very little correlation between what people 
say they will do and what they really will do, once you 
have people who will unequivocally say, “This is what we 
do.”

Mrs. Preston Valien—for Plaintiffs—Direct



212a

Q. Now, you say you visited Louisville and made a study 
there? A. Yes. I— I was up in Louisville participating 
in a workshop last summer with my husband. I have been 
called in as a consultant about a month ago, and on this 
Friday I am going back to Louisville in a conference deal­
ing entirely with desegregation.

At this point, what Louisville is doing is, they are say­
ing that since admittedly college teachers who are now 
training will enter into a desegregated experience, we now 
want to begin teaching them the kinds of things they 
ought to know.

I want to introduce another dimension, though, that I 
think hasn’t been said. I think we have done an awful 
lot of discussion with reference to what this does for 
Negroes. As a social scientist, I am concerned about 
children. I ’m concerned about what this does for all 
people. And in every [160] community where I have been, 
the one thing that I want to report to this audience is 
the number of happy white mothers and white children 
who say that for once “I can enter as a citizen and feel 
whole and complete. No longer do I feel guilty.”

And one of the things that we have to face, and that 
is that we are now moving into a world in winch there is 
no place really for the perpetuation of the kind of society 
which we have. The largest percentage of our people over 
this world are now colored people. It is unfair to children 
to give them a false conception of the world in which we 
now live.

Desegregation will help not only Negro children, but as 
a social scientist I cannot fail to pass on to you the im­
portance of desegregation not only for Negro children but 
for the wholesome and healthy development of white 
children, and this is what my research each day is pointing- 
out.

Mrs. Preston Valien—for Plaintiffs—Direct



213a

White children also want to be heard, and in their be­
half I  want to say that they, too, are experiencing with 
reference to homogeneity, we are finding— For example, 
in St. Louis, teachers said that white children who had a 
tendency to be a little slow and to sort of feel in a—in a 
setting in which they were all there together that they 
were rather superior, once Negro children came in and 
whom they [161] had always felt were inferior, once they 
saw Negro children have a little bit of educational train­
ing, too, that that made them work a little bit harder. So, 
really, desegregation is even helping the white child very 
often in sort of pacing himself a little bit more rapidly in 
the area of competition.

Q. Did you visit Washington, D. C.! A. Yes, I have.
Q. What is your opinion as to desegregation in Wash­

ington, D. C.f A. Well, I—- I think— I think the real 
story of Washington is told very well by Mr. Hanson, 
the superintendent, in The Miracle of Adjustment, and I 
think unfortunately Washington has gotten some very bad 
publicity, but the Washington School System is -working 
really very, very well. There are problems to be sure, but 
I think no person in his right mind would expect not to 
have problems in an area in which there had been this 
long type of lag in our educational system.

Q. What other city have you visited? A. Well, I ’ve— 
I’ve visited practically all the cities—cities in which there 
has been desegregation.

Another thing with reference to— There are many 
schools, you know, now that have been heretofore Negro 
schools that white students have entered. I suppose most 
[162] of you will be interested in knowing— This is 
college level, but West Virginia which for years had been 
an all-Negro school, once the doors were opened, they now

Mrs. Preston Valien—for Plaintiffs—Direct



214a

have many more white students at West Virginia College 
than they have Negro students who now say, “We are very 
pleased we can get an education without restriction.”

There are also even in Louisville white children going 
to what heretofore has been all-Negro children, Negro 
schools, one or two being taught by Negro teachers.

I visited all the areas.
Q. Now, the defendants introduced a book just off the 

press by Doctor— What’s his name ? A. Hill.
Q. Dr. Hill. Have you read that book? A. I have not. 

No.
Q. Have you read The Paths to Desegregation by 

Charles M. Black? A. Paths what?
Q. Paths to Desegregation. A. Oh, I glanced at it.
Q. Glanced at it. You haven’t read it? A. No.

Mr. Looby: Cross examine. Just a minute.

Q. By the way, you say you have been to these different 
[163] cities. Have you been invited by those cities? A. 
In every instance I have been invited. I have made ab­
solutely no—

Q. Even Baltimore? A. I ’m sorry?
Q. Baltimore, Maryland? A. Was I— Was I invited 

into—
Q. Yes. A. No. No, no; no, no; no, no. I meant 

where— Where I went as a consultant, I ’ve gone in by 
agency to do research. I think I didn’t make clear I am 
a consultant for the Southern Regional Council, and in 
some instances— In all instances, I do research. But in— 
in—in Kentucky and all the other areas, I have been in­
vited in.

Q. Now, the Nashville Board of Education that has been

Mrs. Preston Valien—for Plaintiffs—Direct



215a

confronted with this problem for the last two or three 
years, have they ever called you in! A. No.

Q. Never have! A. No.
Q. Have you attended any workshop here sponsored by 

the Board of Education! A. Not by the Board of Educa­
tion. I did participate in the two earlier mentioned by 
Hr. Long and was on the Steering [164] Committee of the 
first one.

Q. But they were sponsored by interested private people!
A. Yes.
Q. But the Board of Education has not sponsored any­

thing of that nature! A. Well, not to my knowledge. I 
can’t say that they haven’t, but not to my knowledge.

Mr. Looby: Cross examine.

Cross Examination by Mr. Hunt:
Q. Did I understand you, Mrs. Yalien, to say that where 

you have made these studies you were invited by the public 
officers of the particular city or by a private agency! A. 
Agencies.

Q. Agencies! A. That’s right, uh huh.
Q. You were not there at the invitation, for example, 

of the School Board! A. No.
Q, Did I understand you correctly when I say that you 

think the problem of desegregation can be handled the 
same in one city as in another city! A. I think the prin­
ciples— Yes, I— I— I— I do very much.

[165] Q. In other words, it can be handled in a par­
ticular manner without reference to local conditions! Local 
conditions do not enter into the problem! Is that your 
understanding of the matter! A. No. I wouldn’t say that 
completely. I think local conditions have some place. I

Mrs. Preston Valien—for Plaintiffs-—Cross



216a

think there are certain principles, however, that will hold 
one good in every community, and I think communities are 
not sufficiently unalike because they have all people in them, 
that the principles could not be the same in all communities.

Q. You think the problem of handling desegregation in 
St. Louis is precisely the same as handling it in Birming­
ham, Atlanta, or Columbia, South Carolina? A. The prob­
lem of handling it?

Q. Yes. And the solution to the problem. Let’s put it— 
A. (Interrupting) Yes, I  would say.

Q. Let’s put it that the solution of the problem is the 
same? A. Yes, I would say that the basic principles are 
the same. May I suggest what they are? The basic prin­
ciples-—

Q. No. That is not in my question. A. (Continuing)
-—are a well-defined plan.

Q. If your counsel wants to go into it. I  asked you—

Mr. Williams: Your Honor, pardon me. I [166] 
think she is entitled to explain her answer.

The Court: If it is an explanation of her answer, 
yes.

Mr. Hunt: That’s right, but I didn’t think so. I 
thought my question was whether she thought the 
solution to the problem of segregation was the same 
in St. Louis as in Nashville, Atlanta, Columbia, South 
Carolina, or any other city without reference to local 
conditions.

The Witness: On the basis of the principle, I 
.would say unequivocally yes.

Mr. Looby: If Your Honor please—
The Court: Ho you want to make any explana­

tion of that answer?

Mrs. Preston Valien—for Plaintiffs—Cross



217a

The Witness: I say Number One.
The Court: She is entitled to make an explanation.
The “Witness: Number One, where you have a 

well-defined—
The Court: Do you want to say anything?
Mr. Looby: No, sir. Your Honor has ruled.

By the Court:
Q. All right. Go ahead. A. Number one, where you 

have a well-defined plan [167] irrespective of that plan; 
number two, where you have a school board that acts with 
authority without equivocation and says, “This is the plan. 
This is what we are going to follow,” a school board that 
does not in the face of opposition throw in the towel and 
say, “This is what we want,” but a school board that is— 
that is committed to the principle of desegregation, whether 
it is in Mississippi, when people of authority act with 
authority, it matters very little. People respect authority. 
People expect—respect people who, once a position is taken, 
that—that position is—is upheld. So in principle, there 
is—there—there is very little difference whether—no mat­
ter where it is.

By Mr. Hunt'.
Q. Then, from your viewpoint evidence as to local con­

ditions is irrelevant? Is that correct? A. I don’t think 
they are totally irrelevant. I do think in the desegregation 
picture, however, they have been played all out of propor­
tion to their relevance, I would say.

Q. Do you have an opinion as to what the majority of 
the white people in Nashville want? A. My own opinion—

Q. (Interrupting) In reference to segregation? A. I 
think the majority of white people in Nashville are like

Mrs. Preston Valien—for Plaintiffs—Cross



218a

the majority in any place. People generally vocalize [168] 
and want to perpetuate the status quo. I think Nashville 
has no less people in its community who are honest, law- 
abiding people who want to see right and justice done 
than—than in any other community, and I— I would sug­
gest that it has its quota of law-abiding people.

Q. In your opinion, do the majority of white people in 
Nashville prefer that their children go to a segregated 
school or a desegregated school? A. I haven’t the slightest 
notion. I do know this, though—,

Q. (Interrupting) You have no opinion? A. I do know 
this, that what people have thought had very little to do 
with how people act.

Q. You have answered me that you have no opinion. I 
believe that answers all of that question that could come.

Mr. Hunt: Does it not, Your Honor?
The Court: Possibly so. Yes.

By Mr. Hunt:
Q. You testified, I believe, on the first hearing of this 

case. Am I right? A. Yes.
Q. You testified in opposition to the transfer plan and 

stated as your opinion, I believe (and you can correct me 
if I am wrong), that you did not think there should be 
transfers [169] because you thought the races should be 
compelled to go to school together. Am I correctly stating 
what you testified? A. I ’m awfully— I’m awfully glad 
you brought that up because I think those are words put 
in my mouth.

Q. Please answer my question, and then give your ex­
planation. A. No. I was interpreted as saying it. I didn’t 
say it.

Mrs. Preston Valien—for Plaintiffs—Cross



219a

Q. You did not say it! A. I did not. I was interpreted as 
saying it.

Q. Do you think there should be a voluntary transfer 
plan in any plan adopted by Nashville? A. I would like 
to see how it fitted into the entire plan. I wouldn’t like to 
commit myself on a total voluntary plan unless I saw it.

Q. There is a voluntary transfer plan in this plan. A. 
You say is there one?

Q. There is one in the plan that has been presented to 
the Court. Do you or not favor that transfer plan? A. 
I— I— I— I— I don’t favor the plan at all, so I don’t 
favor any feature of it.

Q. Did you testify heretofore that you wanted that trans­
fer feature eliminated from the plan? A. As I remember, 
when I testified before, I testified in opposition to the plan, 
and I did not at all suggest what [170] I thought about 
transfer because I think the plan itself is one to which I 
totally object, and that would include all facets of it.

Q. Well, now, let’s get into what— You think Nashville 
should desegregate next fall totally and completely? A. I 
think it could.

Q. It could. Do you think it should? A. I think it 
should.

Q. You think it should. Do you think its plan should per­
mit of transfers from the school zones of those where one 
race was in the majority, and the other race was asking 
for transfer. A. It has nothing at all to do with it. I cer­
tainly would not. I would not predicate any plan on that 
basis of transfer. I think it’s sociologically, psychologically, 
and every other way wrong. No, I would not.

Q. You think that is wrong? A. Yes, I do.
Q. Do you think any plan could successfully work which 

is forced upon a majority by a minority? A. I— I— I—

Mrs. Preston Valien—for Plaintiffs—Cross



220a

1 don’t like for you to suggest the word “forced” because 
I don’t think I want to address myself to that kind of—• 

Q. Well, answer my question and then give any explana­
tion you want. Do you think a plan can successfully work
[171] which is forced upon a majority by a minority by 
court procedure. A. Well, I think most—

Mr. Looby: If Your Honor please, I object to 
that question. It is not a question of forcing any­
thing by a majority. It is a question of following 
the Supreme Court’s rules. Now, as to some plan 
forced by the majority on a minority, that is a 
different proposition altogether.

The Court: I think it bears on the total picture 
that we have to take into account in order to 
pass on the matter. I will allow her to give her 
opinion on it.

By Mr. Hunt:
A. I think that the citizens of Nashville should have the 
opportunity to abide completely and without equivocation 
and without any conscience the Supreme Court decision.

Q. You did not answer my question. Do you prefer not 
to answer it? Do you think a plan can work successfully 
forced upon a majority by a minority?

Mr. Williams: If Your Honor please, I think she 
has answered that question. The use of the phrase­
ology has no support in the evidence or in law.

[172] Mr. Hunt: That is your answer, Mr. Wil­
liams. The witness has not answered it. If she 
wants to adopt that answer, I am agreeable.

Mr. Williams: If Your Honor please, I respect­
fully submit that it is improper for counsel to ask

Mrs. Preston Valien—for Plaintiffs—Cross



221a

the witness whether a plan which would be forced 
on the majority by the minority would be proper 
when as a matter of fact this question constitutes 
an interpretation by counsel of this Supreme Court 
decision.

The Court: That may be true. This is cross 
examination though, and I think he is entitled to 
test her opinions about various phases of the prob­
lem that we have. I think that is a proper question.

The Witness: May I suggest that if—if abiding 
by the Supreme Court decision in its entirety means 
force, then that’s my answer. I believe—- I believe 
unequivocally it—it—ah, it should be abided by.

The Court: All right. Is that all of this witness.
Mr. Looby: If Your Honor please, we have a 

witness we want to call-— (Counsel’s voice faded out 
and remainder of statement could not be heard by 
the reporter.)

[173] The Court: You want to recall him?
Mr. Looby: No, not recall. We are calling him.
The Court: Who is this witness ?
Mr. Looby: He is a member of the Board of 

Education.
The Court: Oh, a member of the Board of Edu­

cation. All right.
Is that all of the present witness we have ?
Mr. Looby: Yes.
Further this witness saith not.

Mrs. Preston Valien—for Plaintiffs—Cross



222a

Coyness L. E nnix , called as a w itness in  behalf of the 
p lain tiffs, being first duly sworn, testified as follows:

Direct Examination by Mr, Williams:
Q. This is Mr. Coyness Ennix? A. That’s right.

By the Court:
Q. How do yon spell that? A. C-o-y-n-e-s-s.
Q. How do you spell the last name? [174] A. E-n-n-i-x. 
Q. All right.

By Mr. Williams :
Q. You are a member of the Nashville School Board, are 

you? A. Yes, s ir; I am.
Q. It was stated earlier here by counsel that you voted 

against this plan. Did you? A. I did.
Q. Why did you vote against it? A. Well, I gave my 

opinion. I give it now, that I felt that it was too slow.
Q. Why did you feel like it was too slow, Mr. Ennix? 

A. Well, the— As I interpret the Supreme Court’s deci­
sion, the Board should proceed with all deliberate speed, 
and I felt that we were proceeding with the least speed 
to— That was—wasn’t deliberate. That wasn’t all deliber­
ate speed. That was my interpretation and my thoughts 
about it, and I so stated.

Q. Were any other plans discussed, Mr. Ennix, by the 
Board in your presence? A. Beg pardon?

Q. Were any other plans ever discussed by the Board? 
A. Yes. Pardon me. Just as the— Mr. Pettit, the [175] 
Chairman pro tern, just as he stated, the Board met on 
several occasions with the Instruction Committee, and we 
discussed various type of plans.

Q. What other plans were discussed? A. Well, now,

Coyness L. Ennix—for Plaintiffs—Direct



223a

one plan I know I brought up myself, one suggestion 
rather, that I thought would be a good plan. That was 
to take the elementary school from one to six. Well, from 
two to six now it would be, starting with next year. And 
after that the junior and the high school, and also sug­
gested perhaps the junior high school and then the high 
school. Take it in three stages.

Q. Then you suggested either a two- or three-year stage, 
is that correct ? A. Yes, that was—

Q. You didn’t insist on integration in September, Mr. 
Ennix? A. No, I didn’t insist on it.

Q. You are the only Negro on the Board, aren’t you? 
A.. I— Yes, I happen to be the only Negro on the Board.

Q. Were there plans suggested to the Board in-between 
the plan that you mentioned, that you suggested, and the 
plan which the Board now proposes? A. Was what now?

Q. The plan which you mentioned was to desegregate
[176] within two or three years. Is that correct? A. Yeah, 
that’s—-

Q. Was there anybody who suggested a plan any faster 
than that? Did the Board ever consider desegregating at— 
A. (Interrupting) I don’t know.

Q. Within the same year? A. I don’t know now.
Q. They never considered it? A. Wait— Wait one 

second please. I didn’t—- I want to go back. Last year, 
in ’57 and ’56 I did advocate complete desegregation start­
ing in the fall of ’57, but after—after the fall of ’57 I was 
tempered down some, and so stated to the Board, and— 
but not tempered to one grade a year. I— We had a long 
discussion of it, and I so stated that I thought that if 
we would make it in two or three stages and not as I 
originally thought that we would have the whole thing. 
That was my discussion.

Q. All right, sir. Thank you.

Coyness L. Ennix—for Plaintiffs—Direct



224a

Cross Examination by Mr. Boult:
Q. Mr. Ennix, yon stated that you attended meetings of 

the Instruction Committee in your capacity as a member 
of the Board? A. That’s right.

[177] Q. You are not a member of the Instruction Com­
mittee? A. No, sir.

Q. And were there more than one of such meetings? A. 
Yes, it was.

Q. And the matter was the subject of free and general 
discussion by all those present? A. It was that.

Q. Were you given full opportunity to express your 
point of view in those meetings? A. I have always had 
and have always expressed it.

Q. Even when there was some difference of opinion be­
tween you and some other member or members of the 
Board? A. We have different—differed sharply on nu­
merous occasions.

Q. And there have been other occasions when there 
have been differences of opinion between you and other 
members? A. That’s right.

Q. And you voted in the negative on this resolution 
when it came up for the reasons that you have stated? 
A. On numerous occasions I ’ve voted negative, on this 
and other—■

Q. On this and on other matters ? A. That’s right.
Q. And you do concede, you do believe that your fellow

[178] members of the Board have been acting in good faith 
through this matter? A. I think that—

Mr. Williams: If Your Honor please, if he is 
asking for his opinion, then I won’t object, but 
otherwise.

The Court: You can do the same, can you not?

Coyness L. Ennix—for Plaintiffs—Cross



225a

The Witness: If Your Honor please, I think they 
are conscientious about what they are doing.

By Mr. Boult:
Q. And have acted in good faith according to their 

conscience? A. I think so.

The Court: All right.
Mr. Williams: May it please Your Honor, I have 

another question if I may.

Redirect Examination toy Mr. Williams:
Q. Mr. Ennis, you are the only Negro on the Board? 

A. I certainly am.
Q. You say you all differ, you and the other members of 

the Board differ sharply on many occasions? A. On— 
on—on numerous occasions.

Q. This question is a problem which affects you as a
[179] Negro, does it not? A. That’s right. That’s right.

Q. Bid you feel that in this particular situation, inas­
much as it was something which involved race relations 
and you were in the extreme minority on the Board, did 
you feel that the Board should give your thinking more 
than ordinary and weightier consideration than usual? 
Didn’t you feel that? A. Ah, yes; and I think that the 
Board— It has been my experience and my belief that 
occasions when—where the racial matter was concerned 
with the exception of this particular—

Q. (Interrupting) This is the only thing where you 
really have felt that the Board had not given your views 
as much consideration as they ought to have been given? 
A. No. I— I wouldn’t say that. I wouldn’t say that. I don’t 
know— I don’t know whether they should have given me

Coyness L. Ennix—for Plaintiffs—Redirect



226a

as much consideration as I—as they ought to. I think 
that we differed and differed— We were way apart. I 
think they were conscientious about what they were saying, 
and I certainly was conscientious about mine.

Q. Well, Mr. Ennix, were you trying to be objective in 
the conclusions which you drew on this plan and the 
previous plan which was submitted by the Board? [180] 
A. Was I—

Q. Did you have any factual data there to consider? 
A. No. Not necessarily other than the factual data that 
I— I didn’t have any at the board. I have it in my library.

Q. Did the Board have any? A. I don’t know whether 
the Board had any factual data or not. We didn’t have—■ 
We didn’t have it before us, but we discussed factual data 
that we had—that the various members of the Board had 
in their library.

Q. What factual data, for example? A. Well, some of 
this—this—this Southern Regional School News.

Q. You mean information gleaned from Southern School 
News? A. Well, yes. That has been discussed and also— 
I don’t know whether that has been discussed. Several—

Q. That’s all right. A. I  want to tell you. In our dis­
cussion we would bring up what different articles and 
different books on segregation or desegregation— That— 
that—that had been discussed on numerous occasions.

Q. Mr. Ennix, when you testify that you think the Board 
was acting in good faith, will you explain to the Court 
[181] exactly what you mean by that? A. I think that 
the Board members, each one of them, conscientiously feel 
that it is best to go grade for grade. I believe they feel 
that way.

Q. Yes, sir. Now, Mr. Ennix, do you feel that that feel­
ing is based on the facts—on any facts which have been

Coyness L. Ennix—for Plaintiffs—-Redirect



227a

presented to the Board and that that feeling is reasonable 
in the light of those facts? A. Well, of course, if I felt 
that reasonable—if I ’d felt that were reasonable, I 
would—would certainly have voted along with it.

Q. You do not feel then that that feeling on the part 
of the members of the Board was based on any facts which 
have been presented to the Board? A. Not necessarily 
so. I—

Q. (Interrupting) It is based on their personal opinion, 
isn’t it? A. Well, their personal opinion and their inter­
pretation.

Mr. Hunt: That is cross examination on redirect, 
Your Honor.

The Court: I think we are getting into a very 
speculative field.

Mr. Williams: All right, sir. If Your Honor [182] 
please, we called him; but he is after all a defen­
dant, and he stated that in his opinion each member 
of the Board was acting according to his conscience. 
I don’t deny that, if Your Honor please, but—

The Court: That is the way he feels.
Mr. Williams: I wanted to inquire into whether 

or not there is any—into what that means.
The Court: He could not know what each member 

of the Board based his opinion on, what particular 
factual data. They get factual data outside of the 
meetings no doubt that they take into the meetings. 
It seems to me that it would be impossible for him 
to probe the underlying data that each member of 
the Board acted on in voting as he did vote.

Mr. Williams: I would just like to ask him one 
or two more questions, if Your Honor please.

Coyness L. Ennix—for Plaintiffs—Redirect



228a

The Court: Hurry up as much as you can because 
I am way past my adjournment time.

Mr. "Williams: All right.

By Mr. Williams-.
Q. Has the Board of Education ever had any meetings 

out in the Negro community that you know of to discuss 
this question of desegregation? [183] A. The Board— 
The Board of Education has never had any.

Q. Has never had any? A. No.
Q. So far as you know, has the Board of Education made 

any attempt to mobilize the community, the organizations 
in a community in support of a program of compliance 
with the Supreme Court’s decision? A. The Board of 
Education as a board has not.

Q. Thank you. A. Not to my knowledge,

Mr. Williams : That is all.
Further this witness saith not.
The Court: Let the Superintendent of Schools 

take the witness stand.

W. H. Oliver—for Defendants—Recalled—By the Court

W . H. Oliv er , a witness in behalf of the defendants 
recalled by the Court, having been sworn previously, testi­
fied further as follows:

E x a m in a tio n

By the Court -.
Q. Something has been said in some of the testimony 

about special classes in addition to the regular classes. 
[184] Explain to the Court what that includes. A. Your 
Honor, I think that reference was made to special classes 
for the cerebral palsied, for students whose sight is sub­



229a

normal, and to vocational and technical training. Now, I 
will do the best I  can describing our program in those 
fields. I have my director of technical and vocational 
training in the court room who can describe the present 
program better if you wish to bring him to the stand.

We have plans under way for providing special train­
ing for the Negro children on the same basis as we pro­
vide for the whites. That is our intention. The training 
has not been provided in the past years as well for the 
Negroes as for the whites. Our plan is to provide the same 
quality of special training, sight-saving classes, cerebral 
palsied, mentally retarded, and—both severely and train- 
able without regard for race. We propose to do that.

Q. But as of the present time the Negro students do not 
have those facilities? Is that correct? A. That is— That 
is correct so far as the special training is concerned.

Q. Special classes. What about vocational training? A. 
That is not correct so far as vocational training is con­
cerned. We have a pretty good program of vocational 
training for the Negroes at Pearl High School.

[185] Q. That vocational training is on the high-school 
level, is it? A. Yes, sir.

Q. And Negro students have facilities for vocational 
training in their different high schools? A. They have 
about the same as the white schools have. Now, you see, 
there are only two Negro senior high schools, and the 
white schools don’t all have the same facilities for training. 
We try to meet whatever the demand is in any of the 
schools, and our philosophy is to meet the demand with­
out regard for race in all of the high schools. We increased 
our commercial training program at Pearl High School 
this fall. We plan to provide the same vocational and 
technical training in the Negro high schools that we have 
in the white as the occasion may require it.

W. H. Oliver—for Defendants—Recalled—By the Court



230a

Q. These special classes, going hack to those, where are 
they held! Any particular place? A. Yes, sir. We have 
the cerebral palsied classes at Buena Yista School. We 
have the sight-saving classes at different schools. And 
we have the classes for— We have one class for the 
severely mentally retarded. That is at Edgehill School, 
and it is in a building in which there are no other classes, 
and there are not any Negro students in that school at 
the present time. What I want to do and what [186] I 
believe the Board will have done is to establish another 
class for white students. We are not taking care of all 
white students by any means who need that training, but 
add another class for the white students and establish a 
class for the Negro students. In other words, we have 
in mind to enlarge our program because it is not adequate 
either for the whites or the Negroes.

Q. It has been proposed here by various witnesses that 
the best plan for Nashville would be to desegregate all 
of the schools at one time; that is, next fall. Could you 
give the Court any idea how many schools would be af­
fected by that plan under the present zoning? A. Your 
Honor, that would depend— That would depend on 
whether we permitted choice, transfers.

Q. With the present transfer system as was proposed 
in the first plan submitted. A. If we desegregated the 
whole school system this fall, how many schools would be 
involved according to our present zoning plan?

Q. Yes. A. I don’t know exactly how many, but a great 
majority of them, I would say; most of them. There would 
be few school zones comparatively in which there were 
not both races.

Q. How many elementary schools are there in Nash­
ville? [187] A. How many elementary schools?

Q. Yes. A. I believe 35 not counting the annexes.

W. H. Oliver—for Defendants—Recalled—By the Court



231a

Q. And how many junior high schools! A. Strictly 
junior high schools?

Q. Yes. A. Let’s see. In the white schools we have 
Waverly-Belmont and Cavert that are strictly—and High­
land Heights, three that are strictly junior high schools. 
Now, we have a lot— We have some other schools in 
which junior-high-school grades are taught, but they are 
not strictly junior high schools.

Q. And how many high schools? A. How many senior 
high schools ?

Q. Yes, senior high schools. A. Now, these senior high 
schools are not all alike. One of them has all twelve of 
the grades in it. We have one of those of the white schools. 
We have two white schools that are strictly senior high 
schools. Those are East and Hume-Fogg Technical School, 
and we have Cohn, North, and West End that are six- 
year schools, junior and senior high schools.

Now, in the Negro Schools we have Pearl which is strictly 
a senior high school. We have Cameron which is a junior- 
senior high school, and we have Meigs which is an [188] 
elementary and junior high school and becoming a senior 
high school. I believe that’s correct.

I might say, Your Honor, I have in the court room a 
directory of our schools and can give each school and the 
grades in that school if you would like to have it.

Q. Do you have a directory that you can put into the 
evidence in the case? A. Yes, s ir; I have.

Mr. Hunt: We will. I don’t thing there is one in 
evidence. Wait a minute, Mr. Oliver.

The Witness: Mr. Nagy had one in his possession.
The Court: I think that ought to be made a part 

of the record. It might clarify some of the matters.

W. H. Oliver—for Defendants—Recalled—By the Court



232a

The Witness: I asked that these be here in case 
they might be needed.

Mr. Boult: May I hand it to the witness ?
The Court: Yes.
(Mr. Boult handed document to the witness.)
The Witness: Thank you.

By the Court:
Q. That is a directory as of what time? A. This is a 

directory for the present school year.
[189] Q. All right. I think you can just file that. That 

shows all of the information I have been asking about, 
does it not? A. Yes, sir; I believe it does except the loca­
tion of the classes for special training. Well, it possibly 
has that in it, too. I believe it has everything you asked 
for.

(Said directory was passed to the Court.)
The Court: File that as a part of the record.

(Said directory of Nashville Public Schools was 
marked “Defendant’s Exhibit No. 1,” and filed 
in evidence.)

By the Court:
Q. On the basis of a total desegregation order, do you 

have any idea how many people would be affected by that, 
how many schools would actually be mixed schools as a 
result of such an order? A. In the whole school system?

Q. Yes, in the whole school system. A. I don’t know 
exactly. I would estimate that at least three fourths of 
the schools would be.

Q. On this voluntary basis, if that plan were put into

W. H. Oliver—for Defendants—Recalled—By the Court



233a

effect along with the total desegregation order, how much 
mixing in the classes do you think would take place as a 
result? [190] A. Your Honor, I— I don’t have much to 
base that on except our experience last fall.

Q. That is about all you could do. You could project 
that experience possibly and arrive at some conclusion on 
it. A. Last fall, we had (as nearly as I can say) 115 
Negro first-grade students who might have gone to white 
schools. Ten of them chose to do so and 105 chose not to 
do so. We had 55 white first-grade students living in what 
I shall call the Negro school zones, and all of them asked 
for transfers. So on the basis of that experience, I would 
say that a vast—that nearly all of the whites, possibly 
all of them, and the vast majority of the Negroes would 
probably ask for transfers in order to be with members 
of their own race. Of course, you understand that I don’t 
know at all.

Q. Yes, that is true. That is just your opinion. A. 
That’s right.

Q. Based on such facts as you have available. A. That’s 
right.

Q. All right. I believe that is all the questions I have. 
A. Thank you, sir.

Further this witness saith not.
[191] The Court: We are way past the time that 

I usually adjourn. So we will have to continue the 
case until tomorrow. I have another case that was 
postponed on account of the hearing of this case. 
So I will want to limit the time tomorrow.

Mr. Looby: If Your Honor please, we have no 
further proof.

The Court: I thought I would hear you in oral 
argument briefly if you would like to be heard.

W. H. Oliver—for Defendants—Recalled—By the Court



234a

Colloquy

Mr. Looby: We prefer to submit a brief.
The Court: Submit a brief without oral argument. 

That will be satisfactory with the Court.
Mr. Hunt: Your Honor, that will be satisfactory 

with us. There are some rather pressing matters 
which necessitate that we ask for some time in 
which to reply to their brief. We do not have a 
brief ready.

The Court: All right.
Mr. Hunt: I am engaged in another case. I won’t 

take more time than we need. It may be a week or 
ten days.

The Court: That is reasonable. There is no doubt 
about that. How much time do you want to prepare 
your brief ?

Mr. Looby: We can submit it any time. As a 
matter of fact, we can submit it now, but inasmuch 
as the burden of proof is on them probably they 
will submit their brief. [192] We can submit it 
today. The burden of proof is on them.

(Here, Court and Counsel discussed further the 
time needed for filing the briefs.)

The Court: All right. That is reasonable enough. 
Two weeks then for you to get your brief in, and 
then 10 days for a reply brief.

Is there any further matter now that any party 
wants to bring up at this time ?

(There was no response.)
(Thereupon court was adjourned.)



235a

Certification

I, Opal Smith, Official Court Reporter for the District 
Court of the United States for the Middle District of 
Tennessee, certify that I recorded verbatim by Stenotypy 
and electronic means the proceedings had in open court 
in the case, Robert W. Kelley, et al, v. Board of Educa­
tion of the City of Nashville, Tennessee, et al. (Civil Ac­
tion No. 2094), before The Honorable William E. Miller, 
Judge of said Court, at Nashville, Tennessee, April 14, 
1958, on “Plan of School Board.”

I further certify that to the best of my knowledge and 
belief the foregoing typescript constitutes a true and cor­
rect transcript of said proceedings.

This 23rd day of October, 1958.

/ s /  Opal Smith 
Official Court Reporter



236a

(entered June 19,1958)

[188] The question at issue is whether the Court should 
approve the School Board’s plan filed April 7, 1958, to 
desegregate the public schools of Nashville. A hearing 
was held on April 14, 1958, at which witnesses were offered 
on behalf of the defendants to support the plan and by 
the plaintiffs in opposition to it. Following the hearing 
the case was thoroughly briefed by the attorneys for the 
respective parties.

The history of the litigation since the filing of the com­
plaint was fully set forth in the Court’s opinion filed Febru­
ary 18, 1958, which required further study by the School 
Board and the submission of another plan not later than 
April 7,1958. The plan so filed is as follows:

[189] “That the Plan heretofore submitted to the 
Court, and approved by the Court as modified, be 
supplemented as follows:

A. Compulsory segregation based upon race is 
abolished in Grade Two of the schools of the 
City of Nashville for the scholastic year begin­
ning in September 1958, and thereafter for one 
additional grade beginning with each subsequent 
school year, i. e., for Grade Three in September 
1959, Grade Four in September 1960, etc.

B. All provisions of the Plan with respect to zoning, 
transfers and the like shall continue in force and 
effect with respect to each additional grade as 
the Plan becomes applicable to such grade.

C. The Board of Education declares its policy to 
be to keep the United States District Court for

M emorandum Opinion



237a

the Middle District of Tennessee informed of 
the progress being made at such intervals as 
the Court may desire or direct and of such prob­
lems as may arise or be solved, which in the 
opinion of the Board of Education should be 
called to the attention of the Court.”

A review of the evidence offered at the hearing discloses 
divergent theories as to the best plan to effect a transition 
from the long-standing segregated system of public edu­
cation in Nashville to a desegregated system. The plan of 
the School Board to desegregate the schools one grade 
each year beginning with the lower grades is strongly 
supported by the testimony of Superintendent of Schools, 
W. H. Oliver, by the former Superintendent of Schools, 
W. A. Bass, by the Chairman of the Instruction Committee 
of the Board, Elmer Lee Pettit, and by the principal of 
Glenn School, Miss Mary Brent. There can be no doubt 
that these witnesses, based upon their years of experience 
in education and upon their intimate knowledge of condi­
tions [190] in Nashville, sincerely believe that a sudden or 
abrupt transition to a desegregated basis would engender 
administrative problems of such complexity and magnitude 
as to seriously undermine and impair the educational 
system of the city. They are convinced that the change­
over from a segregated system of public education in this 
particular area of the south is one of such drastic charac­
ter, such a reversal of custom, tradition, and settled prac­
tice, that disagreement with it is pervasive, far-reaching 
and deep seated. It is their opinion that proper school 
administration requires that the School Board in devising 
a plan should take into account the existence of this factor 
in order to minimize its effects upon the efficiency of the

Memorandum Opinion



238a

schools. They support the School Board’s plan primarily 
because they feel that it offers the best opportunity to bring 
about full desegregation harmoniously and without serious 
disruption of the educational program of the city.

The witnesses testifying for the plaintiffs, although of 
undoubted educational background and experience, have 
had no direct or official connection with the public schools 
of Nashville other than the witness Coyness L. Ennix, the 
only colored member of the School Board. Moreover, these 
witnesses are in disagreement among themselves as to 
the best plan to be followed in effecting the change from a 
segregated system as required by the decisions of the Su­
preme Court. The witnesses, Herman H. Long and Mrs. 
Preston Valien, apparently favor a plan which would re­
quire immediate desegregation in all of the public schools 
of [191] the city. Dr. Preston Valien, on the other hand, 
advocates a plan which would accomplish desegregation 
on the basis of administrative units, that is, first, the ele­
mentary schools would be desegregated, then the junior 
high schools, and finally the high schools. Coyness L. 
Ennix, according to his testimony, first favored the plan 
of total and immediate desegregation but his views under­
went a change after the violent eruption which occurred 
upon the opening of the schools in the fall of 1957. He 
now supports the administrative unit plan advocated by 
Dr. Valien, or some gradual plan of a similar nature.

In summary, all four of the defendants’ witnesses, all 
of whom have had years of experience in the administra­
tion of the schools of Nashville and are in intimate contact 
with the conditions in that city, support without reserva­
tion the gradual plan adopted and submitted by the School 
Board. On the other hand, of the four witnesses for the 
plaintiffs, only two of them support a plan of total and

Memorandum Opinion



239a

immediate desegregation, whereas the other two support 
some type of gradual, desegregation. It, therefore, appears 
that the defendants have carried the burden of proof to 
establish the validity of the School Board plan and that 
it should receive the approval of the Court.

As the Court in this case has repeatedly pointed out, 
it is not the business of the Federal Courts to operate the 
public schools and they should intervene only when it is 
necessary, for the enforcement of rights protected by the 
Federal Constitution. [192] If the judgment of the School 
Board was clearly erroneous, or if it was not supported by 
the evidence, the Court would be justified in finding that 
the defendants had not carried the burden of proof rest­
ing upon them and that the School Board’s plan should be 
disapproved. However, where, as in this case, the judg­
ment of the School Board is supported by the clear pre­
ponderance of the evidence, it would be an unwarranted 
invasion of the lawful prerogatives of the legally consti­
tuted school authority if the Court should undertake to set 
its judgment, aside and substitute some other plan. Ad­
mittedly the problem is not susceptible of an easy solu­
tion. The Supreme Court of the United States has made 
it clear that adjustment must be made in accordance with 
the exigencies of each case and that the concept of “all 
deliberate speed” is a flexible one. For this reason deci­
sions applying the desegregation doctrine in other cities 
or areas where different conditions obtain are of little 
value. Local conditions call for the application of a local 
remedy.

In approving the present plan no denial of the consti­
tutional rights of the plaintiffs or others similarly situated 
is involved. Such rights are distinctly recognized and the 
plan contemplates their full enforcement and application

Memorandum Opinion



240a

in accordance with, a time schedule which though protracted 
for the best interests of the school system as a whole is 
nevertheless definite and unambiguous. Full desegrega­
tion is not denied. It is merely postponed.

[193] A form of judgment together with appropriate 
findings of fact and conclusions of law will be submitted 
for the approval of the Court.

Memorandum Opinion

/ s /  W m . E. M illeb  
United States District Judge



241a

[298] (entered July 17, 1958)

F in d in g s  of F act

1. Reference is here made to the previous opinions and 
findings of this Court* which appear in the record.

2. Pursuant to order heretofore entered, the Board of 
Education of the City of Nashville filed with this Court 
its plan for desegregating the remaining grades of the 
school system, together. with a time schedule therefor, as 
follows:

“That the Plan heretofore submitted to the Court, 
and approved by the Court as modified, be supple­
mented as follows:

A. Compulsory, segregation based upon race is 
abolished in Grade . Two of the schools of the 
City of Nashville for the scholastic year begin­
ning in September 1958, and thereafter for one 
additional grade beginning with each subsequent 
school year, i. e., for Grade Three in September 
1959, Grade Four in September 1960, etc.

B. All provisions of the Plan with respect to zoning, 
transfers and the like shall continue in force and 
effect with respect to each additional grade as 
the Plan becomes applicable to such grade.

[299] C. The Board of Education declares its policy 
to be to keep the United States District Court for 
the Middle District of Tennessee informed of 
the progress being made at such intervals as 
the Court may desire or direct and of such prob­
lems as may arise or be solved, which in the

Findings of Fact and Conclusions of Law



242a

opinion of the Board of Education should be 
called to the attention of the Court.”

3. At the hearing held on April 14, 1958, the plan of the 
Board of Education was supported by testimony offered 
by the present Superintendent of Schools, by the former 
and now retired Superintendent of Schools, by the Chair­
man of the Instruction Committee and Acting Chairman 
of the Board and by a principal of one of the elementary 
schools in Nashville in which desegregation of the First 
Grade was accomplished in September, 1957 pursuant to 
a previous order of this Court.

4. The four witnesses for defendants were unanimous 
in their sincere belief, based upon their years of experience 
in education and upon their intimate knowledge of the 
conditions in Nashville, that a sudden or abrupt transi­
tion to a desegregated basis would engender administrative 
problems of such complexity and magnitude as to seriously 
undermine and impair the educational system of the City.

5. The four witnesses for defendants were convinced 
that the change-over from a segregated system of public 
education in this particular area of the South is one of 
such drastic character, such a reversal of custom, tradi­
tion and settled practice, that disagreement with it is per­
vasive, far-reaching and deep seated; that proper school 
administration requires that the School Board in devising 
a plan should take into account the existence of this factor 
in order to minimize its effects upon the efficiency of the 
schools; and they support the School Board’s plan primarily 
because they feel that it offers the best opportunity to 
bring about full desegregation harmoniously and without 
serious disruption of the educational program of the City.

Findings of Fact and Conclusions of Law



243a

[300] 6. The plaintiffs offered witnesses in opposition 
to the School Board’s plan who, although of undoubted 
educational background and experience, have had no direct 
or official connection with the public schools of Nashville 
other than one such witness, who is the only colored mem­
ber of the School Board.

7. Plaintiffs’ four witnesses are in disagreement among 
themselves as to the best plan to be followed in effecting 
the change from a segregated system as required by the 
decisions of the Supreme Court. Two of said witnesses 
apparently favor a plan which would require immediate 
desegregation in all of the public schools of the City. One 
other such witness, advocates a plan which would accom­
plish desegregation on the basis of administrative units, 
that is, first the elementary schools would be desegregated, 
then the junior high schools, and finally the high schools. 
The colored school board member first favored the plan 
of total and immediate desegregation but his views under­
went a change after the violent eruption which occurred 
upon the opening of schools in the Fall of 1957, and he now 
supports the administrative unit plan just referred to, or 
some gradual plan of a similar nature.

8. In summary, all four of the witnesses for the defen­
dant School Board, all of whom have had years of experi­
ence in the administration of schools of Nashville and are 
in intimate contact with the conditions in that City, sup­
port without reservation the gradual plan adopted and 
submitted by the School Board. On the other hand, of 
the four witnesses for the plaintiffs, only two of them 
support a plan of total and immediate desegregation, 
whereas, the other two support some type of gradual de­
segregation. It, therefore, appears that defendant School

Findings of Fact and Conclusions of Law



244a

Board has carried the burden of proof to establish the 
validity of the School Board plan, and the [301] plan is 
supported by the clear preponderance of the evidence.

CONCLUSIONS OF LAW

1. This cause has heretofore been retained in Court 
pursuant to the previous opinions and orders of this Court, 
and Conclusions of Law, to all of which reference is here 
made, and is now appropriately before this Court for 
final judgment.

2. It is not the business of the Federal Courts to operate 
the public schools and they should intervene only when it 
is necessary for the enforcement of rights protected by 
the Federal Constitution.

3. If the judgment of the School Board was clearly 
erroneous, or if it was not supported by the evidence, 
the Court would be justified in finding that the defendants 
had not carried the burden of the proof resting upon 
them and that the School Board’s plan should be disap­
proved. However, where, as in this case, the judgment of 
the School Board is supported by the clear preponderance 
of the evidence, it would be an unwarranted invasion of 
the lawful prerogatives of the legally constituted school 
authority if the Court should undertake to set its judg­
ment aside and substitute some other plan.

4. Admittedly the problem is not susceptible of an easy 
solution. The Supreme Court of the United States has 
made it clear that adjustment must be made in accordance 
with the exigencies of each case and that the concept of 
“all deliberate speed” is a flexible one. For this reason, 
decisions applying the desegregation doctrine in other

Findings of Fact and Conclusions of Law



245a

cities or areas where different conditions obtain are of 
little value. Local conditions call for the application of a 
local remedy.

[302] 5. In approving the present plan, no denial of the 
constitutional rights of the plaintiffs or others similarly 
situated is involved. Such rights are distinctly recognized 
and the plan contemplates their full enforcement and ap­
plication in accordance with a time schedule which though 
protracted for the best interests of the school system as 
a whole is nevertheless definite and unambiguous. Full 
desegregation is not denied. It is merely postponed.

6. The original plan approved as amended by the order 
of this Court entered February 20, 1957, and of record 
in Volume 19, page 783, and as further amended by said 
amended plan hereinbefore quoted and which was the sub­
ject matter of the hearing held on April 14, 1958 consti­
tutes a compliance with the applicable and constitutional 
provisions as interpreted by the Supreme Court of the 
United States.

7. Said original plan as previously approved by this 
Court, and as herein amended, should be approved by this 
Court, and the prayer of the plaintiff for injunctive relief 
should be denied.

Findings of Fact and Conclusions of Law

/s /  W il l ia m  E. M iller  
Judge



246a

Judgment
[303] (entered July 7, 1958)

This cause came on to be heard on April 14, 1958 upon 
the entire record, upon oral testimony without the inter­
vention of a jury, and upon briefs and argument of counsel 
pursuant to which the Court, on June 19, 1958, filed its 
Memorandum and has this day filed Findings of Fact and 
Conclusions of Law, all of which are herein incorporated 
by reference.

It is , th e r e fo re ,  Obdebed , A djudged  a n d  D ecbeed  a s  
f o l lo w s :

1. That the original plan of the Board of Education of 
the City of Nashville approved as amended by the judg­
ment of this Court entered on February 20, 1957, of record 
in Volume 19, pages 785-786, and as further amended by 
the amended plan filed April 7, 1958 and which was the 
subject matter of the hearing held thereon on April 14, 
1958, be approved, and that the prayer of the plaintiffs 
for injunctive relief be and is denied.

[304] 2. That jurisdiction of the action is retained dur­
ing the period of transition.

To the foregoing action of the Court the plaintiffs except.

A ppboved  as to F obm  :

/s /  W il l ia m  E. M illeb  
Judge

Attorneys for Plaintiffs
/ s /  R e b e b  B oult 

/ s /  E d w in  F .  H u n t  
Attorneys for Defendants