Goss v. Knoxville, TN Board of Education Appellants' Brief

    T .  frrtfia

I n the

United ©Hurt 0! Appeals
F ob the S ixth Circuit 

No. 14,425

J osephine Goss and T homas A. Goss, infants by Ralph 
Goss, their fa ther and next friend [et al.],

Appellants,
-v -

T he Boabd op E ducation op t h e  City op K noxville, Ten­
nessee, a body corporate or continuous legal entity, 
c/o Dr. John H. Burkhart, President [et al.],

Appellees.

APPEAL PBOM THE UNITED STATES DISTRICT COURT FOB THE 
EASTERN DISTRICT OF TENNESSEE, NOETHEEN DIVISION

APPELLANTS’ BRIEF

Carl A. Cowan

2212 Vine Avenue, S.E. 
Knoxville 15, Tennessee

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

327 Charlotte Avenue 
Nashville 3, Tennessee

J ack Greenberg and 
T hurgood Marshall 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

J ames M. Nabrit, III 
Of Counsel



TA BLE O F CO NTEN TS T O  BRIEF
P A G E

Statement of Questions Involved ............................... 1

Statement of Facts ....................................................... 2

Argument ......................    17

Relief.............................    37

Table of Cases:

Barrows v. Jackson, 346 U. S. 249 (1953) .................  36
Board of Education of St. Mary’s County v. Groves,

261 F. 2d 527 (4th Cir. 1958) ...................................  30
Bolling v. Sharpe, 347 V. S. 497 (1954) ................. 28,34
Boson v. Rippy,-----F. 2d —— (5th Cir. No. 18467;

see “Supplemental Opinion”, Dec. 7, 1960) .............. 35
Brown v. Board of Education, 347 XL S. 483 (1954)

— 25, 28, 34
Brown v. Board of Education, 349 U. S. 294 (1955)

3, 4,17,18, 20, 21, 
26, 28, 29, 31

Buchanan v. Warley, 245 U. S. 60 ................................ 18

Clemons v. Board of Education of Hillsboro, 228 F. 2d
853 (6th Cir. 1956) .................................................. . 30

Cooper v. Aaron, 358 U. S. 1 ........................ ......17,18, 21, 25,
26,28, 34,37

Ethyl Gasoline Corp. v. United States, 309 U. S. 436 
(1940) .........................................................................  35

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ..25,26, 29, 30



XX

Hirabayashi v. United States, 320 U. S. 81 (1943) -.34,36

Kelley v. Board of Education of the City of Nashville,
270 F. 2d 209 (6th Cir. 1959) ........... ..........19, 27, 28, 31,

32, 33, 37
Korematsu v. United States, 323 U. S. 214 (1944) .... 34

Maxwell v. County Board of Education of Davidson 
County, Tennessee (Unreported, Nov. 23, 1960, C. A.
No. 2956, W. D. Tenn.) ....... ......................................  26

McCoy v. Greensboro City Board of Education, 283 F.
2d 667 (4th Cir. 1960), reversing 179 F. Supp. 745
(M. D. N. C. 1960) ................... .................................  36

Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) 29

N. A. A. C. P. v. Alabama, 357 U. S. 449 (1958) ..........  36

Pettit v. Board of Education of Harford Couixty, 184 
F. Supp. 452 (D. Md. 1960) ...................................  30

Shelley v. Kraemer, 334 U. S. 1 (1948) ........... .............  36
Shuttlesworth v. Birmingham Board of Education, 162 

F. Supp. 372 (N. D. Ala. 1958); aff’d 358 U. S. 101 .. 36 
Sweatt v. Painter, 339 U. S. 629 (1950) ..................... 29

United States v. Crescent Amusement Co., 323 U. S.
173 (1944) ........... ....................................................... 35

P A G E



I l l

TA BLE O F CO NTEN TS TO  A P PE N D IX

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

Complaint .................................................................... 5a

Answer of the Board of Education of the City of 
Knoxville, et al........................................................  28a

Order ........................................................................... 36a

Plan Filed in Accordance With Proceedings of Feb­
ruary 8, 1960 ..............................    38a

Specification of Objections to Plan Filed by Knox­
ville Board of Education ..........................    41a

Stipulation .........................................................   44a

Excerpts from Transcript of Testimony ...........   69a
Colloquy ..............................................................  69a
Excerpts from Deposition of T. N. Johnston .... 70a
Offering of Exhibits ..........................................  71a
Excerpts from Deposition of Dr. John H. Burk­

hart ........   77a
Excerpts from Deposition of Kobert B. Ray .... 126a
Excerpts from Deposition of Dr. Charles R.

Moffett ............................................................  172a
Testimony of Andrew Johnson

Direct ........................................................... 216a
Cross ............................................................  236a

Excerpts from Deposition of R. Frank Marable 260a

P A G E



IV

Testimony of Thomas N. Johnston
Direct .......................    269a
Cross ............................................................. 281a
Redirect .......................................................  303a
Excerpts from Deposition of T. N. Johnston 303a

Memorandum Opinion................................................  326a

Exhibits to Plaintiffs’ Motion for New Trial and Ap­
propriate Relief ............................................    350a

Exhibit 1(a)—Affidavit, Carl A. Cowan............ 350a
Exhibit 1(b)—Special Meeting of the Board of 

Education, Knoxville, Tennessee .................  351a
Exhibit 2(a)—Affidavit, Sharon Smith.............. 356a
Exhibit 2(b)—Policy on Transfer of Pupils 

Adopted ........................................................... 358a
Exhibit 3(a)—Affidavit, Reverend Carroll M.

Felton ..............................................................  363a
Exhibit 3(b)—School Board Adopts Desegrega­

tion Policy .......................................................  365a

Motion for New Trial and for Appropriate Relief .... 368a

Order ........................................................................... 372a

Notice of Appeal .......................................................  373a

P A G E



S ta te m e n t o f  Q u estio n s  In v o lv ed

I. Did the evidence submitted by the Board support 
its burden, imposed by the equal protection and due 
process clauses of the Fourteenth Amendment to 
the United States Constitution, of justifying delay 
in desegregating the Knoxville schools over a period 
of twelve years by abolishing separate Negro and 
white zones at the rate of one grade per year?

The Court below answered the question Yes.
Appellants contend that it should be answered No.

II. Whether plaintiffs, Negro school children, were de­
prived of due process of law and the equal protec­
tion of the laws under the Fourteenth Amendment 
by having been barred from ever attending a de­
segregated class or school, under a court approved 
plan which has ordered desegregation of only one 
grade a year beginning with the first grade.

The Court below answered the question No.
Appellants contend that it should be answered
Yes.

III. Have plaintiffs been deprived of rights protected 
by the due process and equal protection clauses of 
the Fourteenth Amendment by a provision of the 
School Board’s desegregation plan expressly recog­
nizing the race of pupils as an absolute ground for 
transfer, which was recognized by the Board as 
tending to perpetuate segregation and was justified 
only as a means of accommodating racial animosi­
ties?

The Court below did not discuss the issue in its
opinion, but in effect answered the question No.
Appellants contend that it should be answered
Yes.



2

Statem ent o f  Facts

This is a civil action for an injunction and a declaratory 
judgment filed on December 11, 1959, in the United States 
District Court for the Eastern District of Tennessee. Ap­
pellants, a group of Negro school children and parents in 
Knoxville, Tennessee, brought the action against appellees, 
the Board of Education of the City of Knoxville, its mem­
bers, the Superintendent of Schools, and other officials of 
the Knoxville public school system. In general, the com­
plaint alleged that defendants operated the city’s schools 
under a system of compulsory racial segregation, which 
deprived appellants and other Negroes similarly situated 
of rights protected by the Fourteenth Amendment to the 
Constitution of the United States (Complaint: 5a et seq.). 
The Answer admitted that the Knoxville schools had long 
been operated under a system of segregation, but asserted 
the equality of the separate facilities maintained for Ne­
groes and that desegregation should be postponed (30a- 
35a).

On February 8, 1960, at a hearing on motions for inter­
locutory injunctive relief seeking the admission of appel­
lants to certain schools maintained for white persons the 
Court requested that the Board submit a plan for desegre­
gation on or before April 8, I960; decision on temporary 
injunctive relief was withheld (36a). The Board filed its 
proposed plan on April 8th (38a-40a); thereafter appellants 
filed written objections to it (41a-43a).

Many facts were stipulated, including identity of the 
parties (44a); qualifications of the Negro pupils (50a); 
their rejection from “white” schools “solely on account of 
their race or color” (45a-51a); past unsuccessful efforts 
of particular Negro children to obtain admission to white 
schools (45a-51a), and a history of repeated unsuccessful



3

requests by members of the Negro community to the Board 
for desegregation from 1954 to the commencement of this 
case (53a, 58a, 59a, 61a, 64a). Other stipulations related 
to number of schools, teachers and pupils in the system 
(52a); physical equality of facilities for Negro and white 
pupils (52a) and equality of white and Negro teachers’ 
salary scales (52a). Still other stipulations related to vari­
ous statements and actions by school authorities relating 
to desegregation between 1955-1960 (54a-57a, 66a-68a), and 
to events of violent opposition to desegregation in Clinton 
and Nashville, Tennessee, and Little Rock, Arkansas, dur­
ing 1956-1958, which had come to the attention of the Board 
(59a-60a, 62a-63a). Many of these stipulated facts were 
detailed in the opinion below (327a-331a).

The basic issue, when the cause came on for hearing on 
August 8-11, 1960, was whether the proposed plan should 
be approved. In summary, the proposed plan, called Plan 
No. 9 (set forth in full in the opinion below, 331a-332a) 
provides for: (1) desegregation of grade one in September 
I960; (2) desegregation of one additional grade each year 
until all twelve grades are desegregated; (3) permitting all 
children in the desegregated grades to attend school in 
their zone of residence; (4) establishing school zoning with­
out regard to race for the desegregated grades; (5) grant­
ing parents’ written requests for transfers outside of 
pupil’s zones for good cause; (6) stating that “valid” rea­
sons for transfers are, when a white or colored child would 
otherwise be required to attend a school previously serving 
students of the other race, or a school where a majority of 
students are of a different race.

Appellants’ objections to the plan (41a) were in brief 
that it violated their rights under the due process and equal 
protection clauses of the Fourteenth Amendment and did 
not comply with the principles of Brown v. Board of Edu­



4

cation, 349 U.S. 294 (1955) in that: (1) it did not meet the 
“deliberate speed” requirement; (2) it did not take into 
account the five year period already elapsed in which the 
school board had refused to desegregate; (3) the proposed 
delay of twelve years for complete desegregation was not 
“necessary in the public interest” or “consistent with good 
faith compliance at the earliest practicable date” ; (4) the 
board had not shown that the delay proposed was necessi­
tated by any obstacles to desegregation arising from ad­
ministrative problems of the five types mentioned in the 
Brown decision; (5) the plan forever deprived the plain­
tiffs and all other Negro students already enrolled in school 
of an unsegregated education; (6) it forever deprived Negro 
students of an opportunity for education in certain voca­
tional schools and summer courses; (7) and the racial trans­
fer plan was designed to, and necessarily would, operate to 
perpetuate segregation.

Evidence at the trial consisted of the reading of deposi­
tions, oral testimony and exhibits. Counsel for the school 
board read from depositions (taken by plaintiffs) of the 
Superintendent of Schools, T. N. Johnston, the board Presi­
dent, Dr. Burkhart, two board members, Messrs. Ray and 
Moffet, and the Supervisor of Child Personnel, Mr. 
Marable. School board counsel also read from depositions 
the board had taken of five of the Negro parents. Oral 
testimony for defendants was given by Mr. Andrew John­
son, a former board member, and Superintendent T. N. 
Johnston. Appellants’ evidence consisted entirely of read­
ing additional portions of depositions and presentation of 
exhibits.



5

Evidence at the trial.

The trial record is almost 900 typewritten pages long 
and the opinion below summarizes large portions of it. 
Therefore, the following summary is limited largely to 
matters deemed important by appellants which are not fully 
set forth in the opinion below.

Dr. Burkhart, President of the Board of Education, tes­
tified:1 that while the board had considered desegregation 
from time to time it felt that even the smallest amount of 
desegregation “would disrupt the orderly processes of edu­
cation to the extent that it would be better if we continued 
in the way we were doing now with separate but equal 
facilities” (93a); that it felt this way because “since this is 
a community which is accustomed to that type of educa­
tional processes in which the Negro students go to one 
group of schools and the white students go to another and 
races are not mixed, that any change would cause tension 
and perhaps even strife and violence, and that the students 
themselves would be involved in this rather tremendous 
change of custom and tradition to the extent that their 
education might be handicapped” (93a); that the vast ma­
jority of citizens “both white and Negro, did not desire 
this change to be made” (93a); that he based this view 
“on the reactions that we got from people that we talked 
to and met on the street who were interested in this, and 
communications and letters which we received, and our own 
personal convictions” (94a); that “the board took the posi­
tion that it could continue to do what had been done in this 
community for many, many years until such time as it felt 
that the directions of the Supreme Court could be carried 
out with the consent and agreement and—well, consent and

1 The testimony of this witness was briefly described by the court below 
(342a-343a).



6

agreement of the community” (96a); that the board thought 
that the fact that violence had occurred during the first 
stages of desegregation in Nashville was a “valid” basis 
for delaying desegration (98a); that they assumed that 
local law enforcement officials could cope with violence— 
“but there still would be violence perhaps” (98a-99a); that 
in February 1960 the board did not want to submit a plan 
for desegregation to the court “for the reasons I have stated 
we felt it was in the best interest of the students of the 
City of Knoxville that desegregation not take place. . . . ” 
(100a).

Dr. Burkhart further testified with respect to the twelve- 
year, grade-a-year plan that: the board favored it from 
“the feeling that the gradual desegregation of the city 
schools would permit a longer period of adaptation and 
acceptance and create less of a problem of administration, 
result in less disruption of the orderly processes of educa­
tion and in general be preferable to an abrupt change in­
volving the entire student population” (102a); that among 
administrative problems the board discussed was “the fact 
that there would be many, many schools involved, if com­
plete desegregation occurred simultaneously, including the 
high schools, in which we felt there might be more tendency 
toward strife and reaction and violence” (102a); that the 
more pupils involved the more difficult it would be (103a); 
that prior to adoption of the plan the board did not have 
any figures as to the number of first grade pupils that 
would be involved if the plan was approved and went into 
effect in 1960, though the administration does have maps of 
the location of such pre-school students, but “the board sets 
policy. It doesn’t deal with those smaller things” (104a).

Dr. Burkhart stressed, in connection with administrative 
problems, the necessity for “gradual adjustment . . .  on the 
part of the community” (106a); that the board adopted the



7

provision for transfers based on race so the board could 
make education available for students “under the least pos­
sible circumstances which might be harmful” (107a-108a); 
that it might be harmful and “cause suffering” for some 
students to go to school with pupils of the other race (108a- 
109a); that the board had not decided how students would 
be informed of their zones under the plan (115a); that he 
doubted that any white students would remain in schools 
previously used for Negroes exclusively (118a); that the 
board closed the Mountain View school because there were 
not enough white children in the area to fill it, although 
there probably would have been an adequate number of 
Negro pupils in the area to operate the school without 
segregation (121a-122a) ;.2 that community acceptance was 
considered to be “one of the larger of the problems that 
would be involved” in desegregation (124a); that the board 
was transporting certain students by bus but could elim­
inate transportation problems entirely by desegregating 
the schools (125a).

The opinion of the court below does not refer to the 
testimony of Mr. Robert B. Ray (126a-172a), but excerpts 
from his deposition were read to the Court. Mr. Ray testi­
fied: he was a vice-president of the board (126a); had 
been a board member since 1956 and is the oldest member 
now on the board (126a); that when he came on the board 
he knew that several delegations of Negroes had appeared 
before it and requested desegregation, that the board had 
announced an intention to comply, and had studied eight 
plans for desegregation (128a); that in May, 1956, the 
board decided to delay desegregation indefinitely (130a).

2 I t  was stipulated that Mountain View was closed, all white children in it 
transferred elsewhere, and that the board intended to reopen it as a school 
exclusively for Negroes in September 1960 (52aJ53a).



8

The basis of the indefinite delay was that several delega­
tions had requested desegregation and at the “same time 
there had been some delegations of what I would call 
extremist white people who had also appeared and been 
just as vehement and as insistent in the board not doing 
anything about desegregation” (130a); that “as I recall 
along about this time John Kasper and other persons were 
engaged in their crusades in Anderson County, or some­
where. I know along about this time we were witnessing 
in other parts of the country and in other parts of the 
state, and including the town of Clinton, Tennessee, some 
rather extreme action” (130a); that in June, 1956, the 
board refused a request to rescind its action (131a); that 
in September, 1956, certain Negro children sought admis­
sion to white schools and were denied admission solely on 
account of their race or color (131a); that there were many 
informal meetings at which desegregation was discussed 
and at one meeting in the fall of 1956 several Negro 
principals were practically pleading with the board to do 
something (133a-134a); but the board advised them it 
“hadn’t considered that the time was ripe, but that we 
certainly were going to consider what they were talking 
about, and I believe the majority of the board felt that the 
time had come when we were going to have to do some­
thing, even if it was wrong, we were going to do something 
about some desegregation” (134a); but then the Negroes 
filed a lawsuit and the board resented being sued and pro­
ceeded to defend the lawsuit (134a-135a); that the board 
finally succeeded in getting the lawsuit dismissed in 
September, 1958 (138a); that delegations of Negroes con­
tinued to come and ask for desegregation after dismissal 
of the lawsuit (138a-139a); that he personally resented 
and therefore ignored some of the white and interracial 
organizations that came and requested desegregation 
(139a-140a), but didn’t feel this way about the Negro



9

parents’ request (141a); that in September, 1959, the plain­
tiffs in this ease were denied admission to white schools 
under the segregation policy (142a); that the board re­
tained counsel when the present case was filed in December, 
1959 (142a-143a), and the board unanimously agreed to 
instruct its lawyer to “appear before the Court and tell the 
Court that we would submit a plan, provided the Court 
ordered us to do so” (143a).

The witness answered, “That’s right” to the following 
question: “The question is the board submitted this plan 
which is presently before the Court as a last resort be­
cause the Court had ordered it to submit some kind of 
plan?” (R. 145a). Mr. Ray testified: that the board knew 
that about twenty percent of the school population was 
Negro but did not discuss the school zones and didn’t know 
where pupils would be assigned at the time the plan was 
adopted (146a-147a); that he thought the great majority 
of Negroes didn’t want to go to school with white people 
(147a) and the board didn’t know “who would go to what 
school;” but that the board did not consider the zones in 
passing on the plan (148a) ; that the board didn’t consider 
any question of transferring any teachers (148a); that he 
was the dissenter who didn’t go along with the plan 
adopted (148a-149a); that “in our best judgment, and 
honesty, we felt up until April of 1960 that the time was 
not ripe for desegregation in Knoxville” based on the “tem­
per of the community and the temper of the school children 
and the temper of the board. And the temper of the Super­
intendent” (151a); that he thinks there will be more prob­
lems if “we are required to desegregate the schools all at 
one time than there would be if we desegregate a grade 
a year” (153a); that because older children at the high 
school level have more racial prejudices than younger 
children “the possibility of social upheaval and possible



10

violence would be greater on a high school level of educa­
tion than on an elementary level” (155a). There is a 
summer school program for white children but not for 
Negroes because there is no demand for it (162a); under 
the plan summer school will be desegregated on grade-by­
grade basis (163a); since he has been on the school board 
they have conducted a substantial building program and 
spent six or seven million dollars for new buildings (169a- 
170a); the transportation problem would be eliminated if 
the system was desegregated (172a).

Excerpts from the deposition of Dr. Charles R. Moffet, 
were read to the Court (172a-216a).3 Board member Dr. 
Moffet’s deposition in substance was that except to study 
the problem no action to desegregate was taken during his 
tenure on the board which commenced January 1, 1958 
(173a-176a). He described one plan prepared for the board 
by its staff as Plan 4, a 3-3-3 plan which would have deseg­
regated in 28 months (180a). Among its advantages were 
that it provided for acceptability by younger children, 
conformed to the organization of the school system, in 
that its phases were divided into primary, elementary, 
junior high and senior high school, gave time for gradual 
adjustment for personnel, for building good public rela­
tions, and permitted better adjustment of enrollment. The 
staff deemed this plan a “good compromise between two 
extreme views” (181a). This plan’s disadvantages, the staff 
concluded, were that it took “too long to get the job done,” 
it gave an opportunity for unhealthy attitudes to develop, 
and provided less security for younger children. Moreover, 
some teachers might feel it unfair to have to assume re­
sponsibility of pioneering (181a). He testified that all of 
these disadvantages inhered in the 12-year plan also (183a).

3 The Court’s discussion of Dr. Moffett’s testimony appears at 343a.



11

In support of the 12-year plan he argued that it started 
“with children who had not been prejudiced” and that it 
would be easier on teaching personnel to adjust over a 
period of time (181a). He stated also that there would 
be less community opposition to a 12-year plan (192(a). 
Concerning zoning, he testified that in passing upon the 
12-year plan the board had made no studies or surveys of 
the zones nor the effect that desegregation would have on 
particular grades (197a), nor did the board know how many 
children would be involved in such a plan as a whole or in 
any grade (201a).

Concerning the transfer provisions he stated that they 
gave the opportunity “to perpetuate segregation” (205a). 
He agreed that the transfer provision would not permit 
Negro children to transfer from a segregated school to a 
nonsegregated one (207a).

The board’s position in this case was that it authorized 
“its attorney to go down to the Federal District Court 
and say that the board is of the opinion that the burden was 
on the Court” (211a). The board’s position was that “it 
wouldn’t submit a plan until it was ordered by the Court” 
(212a).

The testimony of Mr. Andrew Johnson is summarized 
in the opinion below at 343a-344a. Mr. Johnson also testi­
fied: that the feelings of the majority of citizens in Knox­
ville was influential in the handling of desegregation 
(234a); that “We were naturally very much concerned with 
the feeling of the people, not only because it was something 
they wanted or did not want, but actually in light of the 
experience in Clinton and later in Nashville as to what 
action they might take in their own hands, and according 
to the order in the Brown case we were looking at local 
conditions. I might state that on one occasion it was very 
forcefully pointed out to the board that there were threats



12

of violence being done right here in the City of Knoxville 
if anything were done immediately” (234a), “In the 
summer of 1957 John Kasper, who has been a defendant 
here before this Court, appeared at a regular meeting of 
the Board—that was on June 10th of 1957. Mr. Kasper 
appeared at that regular meeting of the board with a group 
of some 14 or 15 persons. He was open, of course, in his 
denunciation of any integration whatsoever. Those things 
are threats (235a); that the board’s response to Kasper 
was “We not only did not need him but we did not want 
him, that we thought he would do nothing but create strife 
and violence and we could get along and solve the whole 
problem a lot better as soon as he was out of the picture” 
(235a).

On cross examination the witness testified further about 
his concern for violence, and as to his opinion about the 
danger of violence in Knoxville. The witness acknowledged 
that he knew of no violence that had actually occurred in 
Knoxville in connection with desegregation of the city’s 
buses, public library, ball park, the University of Tennessee, 
Bar Association, etc. (243a-248a).

The testimony of Mr. R. Frank Marable, Supervisor of 
Child Personnel, is summarized in the opinion below at 
App. 344a. The witness testified that he handles transfers 
(261a); takes a pre-school census every year (262a); and 
was preparing the new zoning maps; that under the old 
transfer system parents request transfers, he investigates 
and gets the principals’ views and if the parents have a 
valid reason he grants transfers (264a-265a); that the 
board has a rule or policy on transfers “But I couldn’t 
tell you what they read to save my life” (265a); one 
example of a valid reason would be if a child’s mother 
taught at a school and wants her child with her (267a). 
Transfers from one zone to another generally are made to



13

take care of hardship and sometimes for convenience 
(267a).

The testimony of School Superintendent T. N. Johnston, 
is discussed by the Court below at 335a-342a. This witness 
also testified: that the grade a year plan was discussed in 
staff conferences in the summer of 1955 but then there was 
not enough interest in the plan to include it in the written 
statement of the eight other plans (269a); that he con­
cluded in 1960 that the grade a year plan was best because 
he felt “it could be introduced in the City of Knoxville 
with the least disturbance of the overall educational pro­
gram. And we thought that it would be accepted by a 
majority of the citizens of this city with less tension and 
less emotional excitement than any of the other plans that 
we had studied” (270a). With reference to administrative 
problems “dealing with a fewer number of students . . 
problems will naturally be smaller” (271a). Administrative 
problems that might ensue from desegregation had to do 
with “the relationship between the teacher and the pupil. 
There could be misunderstandings, there could be little 
discipline problems, all of which were administrative” 
(271a). “ [I]n the cafeteria there could be discipline prob­
lems or some emotional upset which creates, to me, an 
administrative problem” (271a). Teachers have to become 
accustomed to a new situation as well as these children, so 
I think there could be a teacher problem as well as pupil 
problems, because neither the children nor the teachers 
are accustomed to desegregated schools” (272a). Keeping 
a supply of teachers isn’t easy but “I wouldn’t say it is a 
major problem, but it is a problem” (272a). Smaller chil­
dren “do not have the prejudices that older children or 
grown people have” and “we could fit them into the work 
much easier than we could by having older children thrown 
together” (275a). The community sentiment was “that a 
gradual process would be better for the City of Knoxville”



14

(275a); education will suffer if the public is not in sympathy 
with the school program in connection with school budgets, 
bond issues, etc. (276a-277a).

The board had a report on achievement tests of sixth 
grade children which showed that the white schools are 
two months above the national norm and Negro schools 
are one year and three months below the national norm 
(278a), which poses a problem of adjustment that the 
board would be in a better position to solve on a grade-a- 
year basis (279a).

On cross examination Mr. Johnston testified: during the 
summer of 1960 he tried to get estimates of the number of 
children affected by desegregation under the new zones 
(281-82a) but he did not know how many schools would 
be affected if all elementary grades were desegregated in 
1960, and did not have those figures when the plan was 
approved. He thought a majority of elementary, junior 
high and high schools would be affected (283-284a). He 
did not know how many Negro students would have the 
privilege of attending desegregated schools if all grades 
were desegregated (284a), and did not have these figures 
in mind in considering the plan (284a). He had the same 
information about the school system when considering the 
grade a year plan in 1955 that he had in 1960 in terms of 
things like the building program, the problem of employing 
teachers (285a). The only additional information he now 
had was with reference to the things that occurred in 
Clinton and Nashville (286a).

In preparing the eight other plans for desegregation the 
staff had listed as an advantage the fact that a plan “in­
volves a larger number of people” (287a), but that his 
contrary conclusion at present was caused by occurrences 
in Nashville and Clinton and impressions from people in 
the community (288a).



15

He thought that “a few teachers would naturally become 
accustomed to it and we could prove by the experience of 
starting with a few and operating on the basis of those 
experiences as we went further along” (288a), but he could 
not name any particular way he proposed to profit by that 
experience (288a). The great majority of teachers had 
been cooperative (289a); they had more -‘highly regarded” 
applicants for teaching positions than were needed the 
previous year, and it would be substantially the same for 
the coming year; hiring teachers was not a “major prob­
lem” (290a-291a).

The board had as many as 13 special meetings a month 
in 1956-57 on the building program (291a), and an estimated 
25 to 30 special meetings on desegregation during the past 
five years (292a). His achievement level statistics were 
averages but levels varied within the Negro and white 
groups (294a).

If Fulton High School (vocational school) was desegre­
gated there would be disciplinary difficulties (297a).

The summer school was for the 7th through the 12th 
grades (299a).

In his deposition Mr. Johnston testified: since he had 
been superintendent the curricula had been changed to add 
foreign language instruction in elementary schools (305a- 
308a); the school system was participating in various 
programs under the National Defense Education Act of 
1958 (308a-323a; 309a-310a; 317a; 321a).

He did not know of any teachers who resigned because of 
the imminence of desegregation (323).

The eight plans developed by the staff after 12 to 15 
meetings indicated more advantages in speedier plans for 
desegregation (324a).



16

Opinion below.

In the opinion below (326a), August 19, 1960, the court 
approved the plan except that it directed the Board to 
restudy the problem of giving* colored students access to 
technical courses at Fulton High and present a plan for 
this within “a reasonable time,” holding that the plan was 
supported by “all of the evidence, with one exception.”

On August 26, 1960 the Court ordered approval of the 
plan, with the above exception, and denied the prayers for 
injunctive relief. The Court retained jurisdiction during 
the transition (348a). Thereafter on September 2, 1960, 
appellants moved for a new trial and appropriate relief 
under Federal Rules 59 and 60 (368a), and filed affidavits 
and exhibits (350a-367a) in support setting forth allega­
tions that the transfer plan, as it would be administered 
was designed to perpetuate segregation. On September 6, 
1960 the court denied the motion for new trial and for 
appropriate relief. On September 26, 1960 appellants filed 
notice of appeal from the judgment of August 26, 1960 
and the order of September 6, 1960.



17

ARGUM ENT

I.

D id  th e  ev id en ce  su b m itte d  by  th e  b o a rd  su p p o r t  its  
b u rd e n , im p o sed  by  th e  e q u a l p ro te c tio n  an d  d u e  p ro c ­
ess c lauses o f  th e  F o u r te e n th  A m e n d m e n t to  th e  U n ited  
S ta tes C o n stitu tio n , o f  ju s tify in g  d e lay  in  deseg reg a tin g  
th e  K n o x v ille  schoo ls over a p e rio d  o f  tw elve years  by  
a b o lish in g  se p a ra te  N egro  a n d  w h ite  zones a t th e  ra te  
o f  o n e  g rad e  p e r  year.

T h e  C o u rt below  an sw ered  th e  q u e s tio n ——Yes.

A p p e llan ts  c o n te n d  th a t  i t  sh o u ld  b e  an sw ered — No.

Defendants had a constitutional burden of justifying any 
delay in commencing and carrying out desegregation. 
While in some circumstances delay might have been per­
missible, only the tj^pe of considerations explicitly detailed 
by the United States Supreme Court could support such 
deferment. The factors which may be considered are ad­
ministrative in nature: physical condition of the school 
plant, the school transportation system, personnel, revision 
of school districts and attendance areas into compact units, 
revision of local regulations. Brown v. Board of Education, 
349 U. S. 294, 300, 301, reiterated in Cooper v. Aaron, 358 
U. S. 1, 6.

A factor which may not be considered, however, which 
the Supreme Court explicitly has condemned as irrelevant, 
is “disagreement with” or “hostility to racial desegrega­
tion.” Brown v. Board of Education, Id. at 300; reiterated 
in Cooper v. Aaron, 358 U. S. 1, 7.

Yet, the record in this case clearly shows that the board 
submitted, and the court below accepted (346a), the for­



18

bidden factor of disagreement or hostility as grounds for 
delay. The court below wrote:

This Court recognizes that the Supreme Court stated 
in substance in Cooper v. Aaron, 358 U. S. 1, that 
opposition to desegregation was not alone a sufficient 
reason to postpone desegregation. But, the Court also 
stated in substance in Brown v. Board of Education, 
347 U. S. 483 that one of the factors that the trial court 
should consider in resolving the question of immediate 
and complete desegregation or gradual and complete 
desegregation is the interest of the people who are 
affected in the community (342a-343a).

It is submitted that this holding by the Court below is in 
conflict with Cooper v. Aaron, supra, where the court said 
that “law and order are not . . .  to be preserved by depriving 
the Negro children of their constitutional rights” (358 17. S. 
at 16). See also, Buchanan v. Warley, 245 U. S. 60, 81.

Moreover, the board did not proffer any factors such as 
physical condition of the school plant, transportation, per­
sonnel, revision of districts, or revision of regulations 
which would justify any delay approaching the order of 
magnitude of more than a decade. Indeed, if we review the 
factors which the Supreme Court had deemed relevant it 
appears that no legally cognizable grounds for the delay 
imposed below exist.

Desegregation would eliminate all transportation from 
the Knoxville City school system—buses are now employed 
only to carry Negro children to school from their homes 
although white schools are within walking distance.

School zones have been revised to accomplish desegrega­
tion.



19

More teachers than needed have been applying for jobs 
in the Knoxville City school system—and this has occurred 
after it has been known that desegregation will proceed.

A building program has substantially been completed 
and is well under way.

There appears to be no problem in reformulating regula­
tions to conform to the constitutional requirements.

Administrative personnel of the Knoxville school system, 
when called upon by the board to formulate plans for de­
segregation devised a series of alternatives all of which 
were far speedier than twelve years—only to have them 
rejected by the board.

Beyond this, the Knoxville Board has demonstrated by 
its efficient handling of numerous problems relating to 
school administration that it is capable of formulating and 
executing far-reaching changes with infinitely more despatch 
than it has treated desegregation.

These facts, developed in more detail below, effectively 
distinguish this case from that of the other twelve-year plan 
considered and approved by this Court in Kelley v. Board 
of Education of the City of Nashville, 270 F. 2d 209 (6th 
Cir. 1959). As this Court held in the Kelly case, “Cases 
involving desegregation, like other cases, depend largely on 
the facts” (270 F. 2d at 225). Kelly could be dispositive of 
the issue here only if it were interpreted to mean that any 
twelve-year plan is per se valid if a board desires to adopt 
it. Appellants submit that they do not believe that this was 
the intent of this Court. This Court made no such holding. 
Any such interpretation effectively ignores the carefully 
considered, detailed standards laid down by the United 
States Supreme Court—a denial obviously more serious 
than even the withholding from individual plaintiffs of 
their constitutional rights.



20

A significant indication of the Board’s entire approach 
to their constitutional duty is the instruction given to its 
attorney concerning this case. The Board took the “posi­
tion that it would not submit a plan unless ordered by the 
Court” (212a). Indeed, although the burden clearly was 
on the Board, Brown v. Board of Education, 349 U. S. at 
300, and the Board was obliged to make a “prompt and rea­
sonable start”, 349 U. S. at 300, it “authorized its attorney 
to go down to the Federal District Court and say that the 
board was of the opinion that the burden was on the Court” 
(211a). Without a court order defendant board would have 
waited “indefinitely” without desegregating (lOOa-lOla).

This attitude of refusal to grant to Negro children their 
constitutional rights unless compelled, merely manifested 
once more the Board’s attitude for more than the five years 
preceding the hearing below. Despite numerous petitions 
from individuals and civic groups that something be done 
to desegregate, the Board’s reply may be typified, by the 
words of Robert B. Ray, a member: “We answer the peti­
tion with the word ‘No’.” (131a). See also 88a, 127a-136a, 
140a.

A principal, if not the only reason which appears to have 
compelled the Board’s attitude, was community hostility to 
desegregation. The record is replete with references to 
anticipated “unpleasant incidents” (57a); the “thinking of 
the community” (82a); “strife” (93a); “violence” (102a); 
“disruption of community tranquility” (149a); the “temper 
of the community” (151a); and the activities of the notori­
ous John Kasper (235a). Indeed the court below, while 
assimilating community hostility to administration, wrote 
an opinion which stressed heavily such factors as “serious 
trouble” in Clinton, Tennessee (331a), and bombings in 
Nashville (331a). It emphasized such factors as “emotional 
excitement” (339a), “tension, . . . fear and . . . emotional



2 1

disturbances . . . ” (340a), “threats and violence” (344a). 
Indeed, the burden of the opinion below appears to be its 
conclusion: “This Court is concerned—gravely concerned 
—with the incidents of unrest and violence which have at­
tended the desegregation of schools in nearby communities. 
They have not only been made matters of evidence in this 
case, but some are matters with which this Court has had 
to deal, and of which it takes judicial notice” (346a).

This line of testimony was strenuously objected to by 
plaintiffs (229a, 230), but was admitted. Certainly none of 
this testimony was relevant to delay of desegregation under 
the plain language of the Brown and Cooper cases, supra.

(It may be noted, however, that in Knoxville there is a 
significant and extensive degree of desegregation in many 
aspects of community life, and it all has occurred without 
untoward incidents (248a). Indeed, defendants have never 
once consulted with the police concerning possible aid in 
connection with desegregation (98a).)

In addition to the extensive argument concerning violence, 
opposition, and tension, defendants proffered some other 
testimony purporting to justify delay. But this testimony 
does not in fact justify the delay sought and approved below.

There was a building program for which defendants 
allegedly had to wait (57a). However, it is largely, if not 
entirely, complete (259a). But there is not the slightest 
indication of how this program could interfere with deseg­
regation. Indeed, there is not even a suggestion that such 
a program is in any way related to twelve years or any 
other period of time.

Moreover, desegregation would have contributed to more 
efficient utilization of existing school facilities because a 
white school which closed for the reason that few white



22

children lived in the neighborhood could have been used 
on a desegregated basis (121a).

There was also an argument that a twelve year plan 
would require adjustment of teacher personnel (190a). But, 
once more, no reason was given why this should be so. The 
teachers, supervisory personnel, and principals themselves 
urged speedier transition (180a); Plaintiff’s Exhibit 15. 
Administrative personnel concluded that the slower the 
plan the more adverse the effect, because in slower plans 
teachers in the few desegregated grades might resent hav­
ing been selected as pioneers (181a). Knoxville historically 
has had no difficulty in recruiting qualified teachers. The 
system has had about 352 white applicants for teaching 
positions in recent years, about 88 of whom were “highly 
regarded” ; there were 176 Negro applicants of whom 29 
were “highly regarded” (290a). There were only 65 posi­
tions to fill. Ibid. The Superintendent stated that teacher 
recruitment was not a “major problem” in connection with 
desegregation (291a). So far as the Superintendent knew 
no resignations occurred because of the “imminence of de­
segregation” in Knoxville (323a).

Defendant Board also suggested that twelve year delay 
was justified by a difference between Negro and white 
achievement levels (278a). But, as the Superintendent tes­
tified, this was a matter of averages. Negro and white chil­
dren might appear at every level of ability. Indeed, the 
child with the best achievement might be Negro, and that 
with the lowest might be white (294a). In any event, de­
fendants had never even considered separating children 
according to achievement, or, as it sometimes is called, by 
a track system (197a). Moreover, the only evidence which 
the Board had of the effect of desegregation on achieve­
ment was that of Washington, D. C., where the abolition



23

of segregation was followed by improved achievement 
levels of Negro and white children (185a-186a).

Desegregation would eliminate one important administra­
tive problem—bussing. Children in Knoxville are bussed 
only from an area of Negro population where there is a 
white school. The Chairman of the Board agreed that “the 
Board might well eliminate any transportation problem 
entirely by integration of the schools” (125a, 172a).

Other administrative problems were of a nature which 
might be characterized as de minimis. Transfers always 
have been handled in Knoxville on an administrative basis 
without any difficulty (263-266a). The Board’s racial trans­
fer plan, devised by the Board during this case and which 
appellants assail as unconstitutional elsewhere in this brief, 
would provide additional grounds for transfer. But as the 
administrative official in charge of transfers put it, this 
would be “just three additional reasons on top of all the 
hundreds that we have had all these years. . . . ” (269a).

Of course, desegregating would call for rezoning from 
the two sets of zones, based on race to a single set without 
reference to race. This, however, has been done for the 
elementary schools, and was accomplished in a brief period 
of time (262a).

It is plain that none of the so-called administrative 
problems mentioned by the appellees in support of its 
plan were directly connected in any rational way with the 
period of twelve years delay requested. That is, there was 
no showing that it would require twelve years to solve 
these problems, and that this was the “least practicable 
delay” consistent with the public interest. Measured 
against the standard of “good faith compliance at the 
earliest practicable date” (349 U. S. at 300), all of the 
board’s justifications for delay fall short.



24

In fact, the Board has given no significant consideration, 
nor arrived at significant conclusions concerning the real 
and constitutionally valid problems which desegregation 
might create. It has secured no information concerning 
how many children would be directly involved if total de­
segregation were achieved at once (87a; 104a, 201a). The 
Board had not, at the time it adopted its plan, studied the 
effect of desegregation either on the system as a whole 
or with regard to any particular grade (196a-197a).

The board completely failed to follow any of eight plans 
devised by its own supervisory personnel for handling the 
desegregation problem. These plans are set forth in Ex­
hibit 15 and undoubtedly reflect informed administrative 
opinion among those charged with administering the school 
system. Plan 4, which typifies administrative matters 
which school administrators in Knoxville deemed import­
ant, was a “3-3-3” plan. Grades 1, 2, and 3 would be de­
segregated the first school year; at the beginning of the 
second year grades 4, 5, and 6 would be desegregated; next 
year grades 7, 8, and 9, and so forth. The entire plan would 
take 28 school months (180a). The disadvantages which 
the administrators saw with this plan was that it gave 
opportunity for feelings to develop which may not be 
healthy; that it provides less security for younger children ; 
that some teachers might feel it unfair to them to have to 
assume responsibility of pioneering the way (181a). As 
Dr. Moffett of the Board testified, these disadvantages are 
also inherent in the twelve year plan (183a).

Defendant board, however, has demonstrated a facility 
for dealing expeditiously with administrative matters of 
all sorts which sharply contrasts with the halting attitude 
it has taken toward its Fourteenth Amendment obligations. 
It has taken the necessary complicated steps to qualify for 
federal aid under the National Defense Education Act



25

(156a, 309a, 323a). It has conducted a massive building and 
renovating program (R. 168a, 170a, 224a, 259a). It has 
floated bond issues (224a). It has revised curricula in 
languages, mathematics, science (305a, 314a, 318a). It has 
approved budgets (256a). In such matters, unlike its action 
on desegregation, it has relied heavily on staff work (255a, 
256a).

In support of delay, the board also relied on the asserted 
equality of the separate schools for Negroes, and the Court 
below agreed (341a-342a). However, the “separate but 
equal doctrine” for public education was rejected com­
pletely in the first Brown decision (347 U. S. 483, 493-95). 
Asserted equality is no basis for continued segregation. 
The Supreme Court emphasized in Cooper v. Aaron, 358 
IT. S. 1, 19, that:

The right of a student not to be segregated on racial 
grounds in schools so maintained is indeed so funda­
mental and pervasive that it is embraced in the concept 
of due process of law.

The conclusion which leaps from, this record is that these 
defendants did not want to desegregate until compelled by 
the court. Once compelled, they presented the minimum 
they thought might be approved. At every point defend­
ants proffered, and the court accepted, community opposi­
tion to desegregation as grounds for a twelve year plan.

Twelve years is not a talismanic period of time. Other 
courts under varying circumstances have rejected it. The 
Court of Appeals for the Third Circuit has held that twelve 
years was not justified by the record in Evans v. Ennis, 281 
F. 2d 385 (3rd Cir. 1960). And it may be noted that that 
case, because of the statewide control exercised by the 
Delaware State Board of Education, involved almost every



26

school district in the state. Obviously, the administrative 
problems in Evans v. Ennis, covering a whole spectrum of 
educational, political, social and geographical conditions, 
had to be more complex than those in the single city of 
Knoxville. Moreover, in this Circuit, Judge Miller, in 
Maxwell v. County Board of Education of Davidson County, 
Tennessee (unreported, Nov. 23, 1960, C.A. No. 2956, W.D. 
Tenn.), has rejected a twelve year plan and ordered prompt 
desegregation of the first four grades of that system’s 
schools.

That twelve years are not a justifiable period of delay in 
this case is manifest. The rights of Negro children are 
plainly infringed by this more-than-a-decade protraction of 
segregation. But more deleterious than this is the manner 
in which such an extension effectively ignores the Supreme 
Court’s decisions in Brown and Cooper, supra. Obviously 
the Supreme Court meant what it said in prescribing which 
standards might be considered and which were irrelevant 
in desegregation cases. The Court repeated the permis­
sible considerations twice, at intervals of several years. To 
offer community opposition as grounds for delay, have it 
recognized fulsomely in a judicial opinion, without legally 
cognizable reasons in support of the postponement, does as 
much, if not more, harm to the concept of equal justice 
under law, as it does to the individuals involved in this 
litigation.



27

II.
W h e th e r  p la in tiffs , N egro  schoo l c h ild re n , w ere  d e ­

p r iv e d  o f  d u e  p ro cess  o f  law a n d  th e  e q u a l p ro te c tio n  o f 
th e  law s u n d e r  th e  F o u r te e n th  A m en d m en t by  h av in g  
b e e n  b a r re d  f ro m  ev e r a tte n d in g  a deseg reg a ted  class 
o r  schoo l, u n d e r  a c o u rt a p p ro v e d  p la n  w h ich  h as  o r ­
d e re d  d e seg reg a tio n  o f  on ly  one  g rad e  a y e a r  b eg in n in g  
w ith  th e  f irs t g rad e .

T h e  C o u rt below  answ ered  th e  q u e s tio n —-No. 
A p p e llan ts  c o n te n d  th a t i t  sh o u ld  b e  answ ered—-Yes.

In the trial court, one of appellants’ objections to the 
plan of desegregation was stated as follows (App. 42a) :

“5. That the plan forever deprives the infant plain­
tiffs and all other Negro children now enrolled in the 
public schools of Knoxville, of their rights to a racially 
unsegregated public education, and for this reason 
violates the due process and equal protection clauses 
of the Fourteenth Amendment to the Constitution of 
the United States.”

The Court below disposed of this contention with the 
following words (App. 347a):

“Some individuals, parties to this case, will not them­
selves benefit from the transition. At a turning point 
in history some, by the accidents of fate, move on to 
the new order. Others, by the same fate, may not. If 
the transition is made successfully, these plaintiffs will 
have had a part. Moses saw the land of Judah from 
Mount Pisgah, though he himself was never to set 
foot there.”

This issue, appellees might argue, may have been fore­
closed by the decision of this Court in Kelley v. Board of



28

Education of Nashville, 270 F. 2d 209 (6th Cir. 1959), as 
the approval of the plan in that case constitutes an implicit 
rejection of appellants’ contention here. However, examina­
tion of the briefs in Kelley indicates that the question was 
not presented to the Court as a “Question Involved,” and 
that it was only treated briefly in one paragraph of appel­
lants’ brief (Brief of Appellants, p. 20, 270 F. 2d 209). 
More important, is the fact that the question was not dis­
cussed in the Court’s opinion in Kelley. For these reasons 
appellants urge that the Court now consider the matter 
in the light of the arguments submitted below.

The principle that compulsory racial segregation vio­
lates the rights protected by the equal protection (Brown 
v. Board of Education, 347 U. S. 483 (1954)) and due 
process clauses (see Cooper v. Aaron, 358 U. S. 1, 19 
(1958), citing Bolling v. Sharpe, 347 U. S. 497 (1954)) of 
the Fourteenth Amendment is plain and beyond dispute. 
The second decision in Brown v. Board of Education, 349 
U. S. 294, established the principle that upon “adjusting 
and reconciling public and private needs” {Id. at 300), 
“the personal interest of the plaintiffs in admission to 
public schools as soon as practicable on a nondiscriminatory 
basis” {Id. at 300) might be deferred in order to “take 
into account the public interest in the elimination of . . . 
[certain specific types of] . . . obstacles in a systematic and 
effective manner” {Id. at 300). This holding, allowing the 
flexible application of equitable principles in the public 
interest, did not, however, indicate that the personal in­
terest of plaintiff Negro school children could be sacrificed 
completely in either the public interest or the interest of 
other Negro pupils—but only that the enjoyment of their 
rights might be deferred.

By the very nature of the “stair-step” plan which begins 
in the first grade and desegregates succeeding grades one 
year at a time, no Negro children making normal progress



29

from grade-to-grade, who attended school prior to start of 
the plan, will ever attend a desegregated class. This in­
cludes all of the appellants. Nor, in the realities of the 
matter, will they ever attend even a segregated class in 
schools where lower grades are desegregated. While this 
latter point was perhaps not clear in the Kelley record, it 
is now acknowledged by the School Board President, Dr. 
Burkhart, that the all-Negro schools will remain segre­
gated (App. 118a) because of the racial transfer plan, dis­
cussed in part III of this argument. Thus, the only relief 
that these litigants can ever obtain through the judicially 
approved plan, is whatever satisfaction they may gain 
from being instrumental in securing governmental respect 
for the constitutional rights of other Negroes. It is sub­
mitted that this is not a legally sufficient substitute for 
judicial protection of these litigants’ personal constitu­
tional rights.

In the second Brown decision, supra, the court emphasized 
that “At stake is the personal interest of the plaintiffs 
in admission to public schools as soon as practicable on a 
nondiscriminatory basis” (349 IT. S. at 300). See Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337 (1938); and Sweatt 
v. Painter, 339 U. 8. 629, 635 (1950), emphasizing that 
the right to freedom from state imposed discrimination in 
higher education was a “personal and present right.” Under 
the terms of the present plan—“as soon as practicable”— 
becomes “never” for the appellants and all other Negro 
pupils in school when the case was filed. Indeed, as almost 
seven years have passed since the first Brown decision, the 
plan means “never” for most if not ail Negro children who 
had been born when that decision was rendered.

Other appellate courts considering this problem have 
reached results different from that in the Court below by 
assuring some relief to Negro plaintiffs. In Evans v. Ennis,£ 
281 F. 2d 385 (3rd Cir. 1960), the court mentioned the



30

Kelley decision, but resting its opinion in part on dis­
tinguishing facts and in part on a different approach to 
the question of complete denial of relief to the named 
plaintiffs, held a twelve year plan inadequate. The Third 
Circuit required the immediate admission of the named 
plaintiffs, and the submission of a plan to desegregate the 
system generally, stating (281 F. 2d at 392):

“We are aware that strong courts have held in sub­
stance that a grade-by-grade integration of the kind 
approved by the court below has met the criteria laid 
down by the Supreme Court in its decision in Brown 
v. Board of Education of Topeka, supra . . . [citing 
Kelley].”

But the court went on to state among its reasons for finding 
the plan inadequate (Id. at 393):

“Third, as we have stated, the plan as approved by the 
court below will completely deprive the infant plain­
tiffs, and all those in like position, of any chance what­
ever of integrated education, their constitutional right. 
Fourth, the plan approved by the court below goes no 
further than a grade-by-grade integration beginning 
at the first grades and can provide integration only for 
Negro children presently of very tender years, exclud­
ing all others.”

Likewise, the Court of Appeals for the Fourth Circuit, 
has approved the grant of relief to individual Negro 
students in disregard of, or as exceptions to, a previously 
approved stairstep plan. See Board of Education of St. 
Mary’s County v. Groves, 261 F. 2d 527 (4th Cir. 1958). 
See also, Pettit v. Board of Education of Harford County, 
184, F. Supp. 452 (D. Md. 1960) (applying the Groves 
principle). Indeed, in somewhat different circumstances, 
this Court in Clemons v. Board of Education of Hillsboro,



31

228 F. 2d 853 (6th Cir. 1956), required the grant of im­
mediate relief to parties to the litigation who were not 
attending school, while postponing relief for other Negro 
students represented by the class action.

With deference to the views of this Court indicated by 
approval of the Nashville plan in the Kelley case, appel­
lants submit that a desegregation plan which provides no 
possibility of relief for them is not “adequate” within the 
meaning of the Brown decision.

III.
H ave p la in tiffs  b een  d e p riv e d  o f  r ig h ts  p ro te c te d  by 

th e  d u e  p ro cess  a n d  e q u a l p ro te c tio n  c lauses o f  th e  
F o u r te e n th  A m en d m en t by  a p ro v is io n  o f  th e  School 
B o a rd ’s d eseg reg a tio n  p la n  ex p ressly  reco g n iz in g  th e  
race  o f  p u p ils  as an  ab so lu te  g ro u n d  f o r  t ra n s fe r , w h ich  
was reco g n ized  by  th e  B o a rd  as ten d in g  to  p e rp e tu a te  
seg reg a tio n  a n d  was ju s tif ie d  on ly  as a m eans o f  ac­
c o m m o d a tin g  ra c ia l an im o sitie s  ?

T h e  C o n rt below  d id  n o t d iscuss th e  issue  in  its  
o p in io n , b u t  in  effect an sw ered  th e  q u e s tio n — N o.4 
A p p e llan ts  c o n te n d  th a t  it  sh o u ld  be  an sw ered —  
Yes.

The plan approved by the Court below contains the 
following provision, to which appellants object:

“6. The following will be regarded as some of the valid 
conditions to support requests for transfer:
a. When a white student would otherwise be re­

quired to attend a school previously serving 
colored students only;

4 This question was presented to the Court below for the decision in ap­
pellants’ specification of objections to the plan (App. 42a-43a). During the



32

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 
of that school or in his or her grade are of a 
different race.”

It should be noted at the outset that, aside from minor 
verbal differences, the provision quoted above is identical 
to a provision approved by this Court in Kelley v. Board of 
Education of Nashville, 270 F. 2d 209, 228, 229, 230 (6th 
Cir. 1959). However, appellants urge that this provision 
should be disapproved in this case in the light of material 
differences in facts which reveal discriminations merely 
latent in the Kelley record. Moreover, the Kelley holding 
should be reconsidered in the light of a recent conflicting 
decision by the Fifth Circuit and additional considerations 
set forth below.

In this case, unlike Kelley, the record plainly shows that 
the school board adopted the racial transfer provision with 
the expectation and intent that it would perpetuate segre­
gation to a great degree, including the continuance of the 
present all-Negro schools, for the purpose of catering to 
the wishes of those who opposed desegregation. This is 
plainly indicated in the testimony of the President of the

course of the trial a colloquy occurred between Court and counsel in which 
the Court indicated that it was bound by a prior decision of this Court which 
had approved an almost identical provision (App. 119a). See K e lle y  v. B oard  
o f  E d u ca tio n , 270 F. 2d 209, 228, 229, 230 (6th Cir. 1959). There was no 
discussion of this question in the opinion below, but the approval of the plan 
constituted a rejection of appellants’ contention.

After the opinion below was filed, appellants moved for a new trial and for 
further relief alleging certain facts relating to the administration of the 
transfer plan (App. 350a-370a). This motion was denied (App. 372a).



33

School Board, Dr. Burkhart, and the testimony of Dr. 
Moffett, a board member, quoted and summarized in the 
margin below.5

Again, unlike the Kelley case, the record in this case 
shows that after the decision below appellants moved for 
a new trial and appropriate further relief, alleging with

5 D r. B u rk h a r t  testified (App. 118a) :
“Q. I  am asking you do you or does the board anticipate that any 

white students will remain in schools which have been previously zoned 
or used for Negroes exclusively? A. We doubt that they will.”

The witness further testified (App. 118a) :
“Q. So then a Negro student who happens to be in a zone where the 

school for his zone is a school which was formerly used by Negroes only, 
that school will be continued to be used for Negroes only and he will 
remain in a segregated school, will he not? A. Yes, sir,

“Q. And if he applied for transfer out of his zone to a school which 
had been formerly serving white students only, then his application would 
be denied under this plan, would it not, sir? A. Unless it were based 
on one of the other reasons that we have established for transfer. I f  
transferred under one of those, it would be granted.”

D r. M o ffe t t  testified (App. 205a-206a) :
“Q. These transfer provisions, therefore, on their face tend to perpetuate 

segregation insofar as they are availed of by the students; is that correct, 
or their parents? A. At least give the opportunity.

“Q. They give an opportunity to prolong the segregated system; is that 
correct, sir? I  think you have stated that that is correct. A. I  think 
your statement is a fact that would stand on its own merit.”

Dr. B u rk h a r t  also indicated in testimony which is set forth in full in the 
Appendix, pp. 107a-109a, that the transfer policy was concerned with the 
effect that desegregation might have on the students; that it might be harm­
ful for a certain number of white and colored students to go to school with 
students of the other race; that “The fact that we are talking about two 
separate races of people, with different physical characteristics, who have not 
in our community been very closely associated in many ways, and certainly 
not in school ways. And there would be a sudden throwing together of these 
two races which are not accustomed to that sort of thing. Either one of them 
might suffer from it unless we took some steps to try to decrease that amount 
of suffering or that contact which might lead to that in case it did occur” ; 
that he referred to a “mental harm. A mental state” ; and that he did not 
agree “wholeheartedly” with statements that segregation is harmful both to 
the Negro and the white child and that it tends to give the white child a 
false sense of superiority and tends to give the Negro child a sense of in­
feriority, though he had read such statements and thinks “it has its points.”



34

supporting affidavits that the school board adopted a policy 
after the opinion below was rendered which provided for 
administration of the transfer provisions in such a manner 
as to directly assign pupils on the basis of race. The board’s 
publicly announced policy (App. 350a) is as follows:

“All first grade pupils should either enroll in their 
new school zone or in the school which they would have 
previously attended.”

Thus, pupils are not even assigned to the school in their 
zone by the school authorities subject to a request for a 
transfer (as the text of the plan might lead one to believe), 
but rather, they are directly enrolled in the school which 
they would previously have attended under the completely 
segregated system.

But the underlying objection is that the transfer provi­
sions in question expressly recognize the race of pupils as 
an absolute ground for transfer. It has been held that 
governmental classifications based upon race are “suspect” 
and, indeed, presumptively arbitrary. Cf. Korematsu v. 
United States, 323 U. S. 214, 216 (1944); Hirabayashi v. 
United States, 320 U. S. 81, 100 (1943). Brown v. Board 
of Education, 347 U. S. 483 (1954), and Bolling v. Sharpe, 
347 U. S. 497 (1954), conclusively established that racial 
classifications have no place in public education and that 
“segregation is not reasonably related to any proper 
governmental objective” (347 U. S. at 500).

The Supreme Court stated in Cooper v. Aaron, 358 U. S. 
1, 7 (1958),'with respect to judicial review of school de­
segregation plans, that:

“ . . . the Court should scrutinize the program of the 
school authorities to make sure that they had developed 
arrangements pointed toward the earliest practicable 
completion of desegregation, and had taken appro­



35

priate steps to put their program into effective opera­
tion. . . . State authorities were thus duty bound to 
devote every effort toward initiating desegregation 
and bringing about the elimination of racial discrimi­
nation in the public school system.”

It is submitted that the racial transfer plan, here 
acknowledged to be a method of perpetuating segregation, 
is plainly inappropriate in a plan purporting to end racial 
segregation. An adequate plan for the “earliest practicable 
completion of desegregation” should eliminate rather than 
perpetuate the practice of assigning students on the basis 
of race to schools designated as white and colored. To 
borrow the words used by the Supreme Court in certain 
anti-trust cases, the court should require a plan which 
would “suppress the unlawful practices and . . . take such 
reasonable measures as would preclude their revival.” Cf. 
United States v. Crescent Amusement Co., 323 U. S. 173, 
188 (1944); Ethyl Gasoline Corp. v. United States, 309 
U. S. 436, 461 (1940).

In a recent opinion, the Court of Appeals for the Fifth 
Circuit held invalid a provision of a school desegregation 
plan substantially identical to the one involved here. Boson 
v. Hippy,-----F. 2d------ (5th Cir. No. 18467; see “Supple­
mental Opinion,” December 7, 1960). The Court, in an 
opinion by Circuit Judge Rives, acknowledged the Kelley 
decision, stating, “We fully recognize the practicality of 
the argument contained in the opinion of the Sixth Circuit 
holding that similar provisions are not unconstitutional.” 
The Court went on to state:

“Nevertheless with deference to the views of the Sixth 
Circuit, it seems to us that classification according to 
race for purposes of transfer is hardly less uncon­
stitutional than such classification for purposes of 
original assignment to a public school.”



36

The Court then quotes from Hirabayashi v. United States, 
cited supra; discusses certain Texas statutes which in the 
particular case gave additional support to its decision, and 
finally referred to the cautionary language in Shuttlesworth 
v. Birmingham Board of Education, 162 F. Supp. 372, 384 
(N, D. Ala, 1958); affirmed on limited grounds, 358 U. S. 
101; which afforded the basis of the Supreme Court’s 
affirmance, and emphasized that pupil assignment rules 
must be applied to pupils on “a basis of individual merit 
without regard to their race or color.”

Obviously the racial transfer provision provides a 
governmental framework, predicated upon race, and race 
alone, within which community pressures operate to pre­
serve desegregation. The fact that the resulting segrega­
tion is in part effected by the parent’s “choice” of schools 
is not dispositive. For it is the “interplay of governmental 
and private action,” cf. N. A. A. C. P. v. Alabama, 357 U. S. 
449, 463 (1958), which works inexorably to preserve segre­
gation. The school authorities provide the standards for 
pupil assignment. The fact that some parents want segre­
gation and accomplish it through the school board’s 
“option” system, does not relieve the Board of its duty to 
eliminate the segregated system that was created by state 
law. Cf. McCoy v. Greensboro City Board of Education, 
283 F. 2d 667 (1960), reversing 179 F. Supp. 745 (M. D. 
N. C. 1960) (where through “optional transfer” device 
school board moved all white students from a school and 
converted it to a Negro school; held complaint improperly 
dismissed). The proposition that no citizen has a “right to 
demand action by the State which results in the denial of 
equal protection of the laws to other individuals” was 
applied in Shelley v. Kraemer, 334 U. S. 1, 22 (1948) and 
Barrows v. Jackson, 346 U. S. 249, 260 (1953). If school 
authorities may not assign pupils on the basis of race to



37

effect segregation at the command of a state legislative 
enactment, it is, appellants submit, unthinkable that they 
may do so in obedience to the prejudices of individual 
parents or pupils.

Further, as the affidavits of appellants on motion for a 
new trial indicated (App. 350a-370a), the so-called “trans­
fer” rule is administered so that it actually operates to 
effect the initial assignment of first grade students on the 
basis of race, a system plainly conflicting with the rule 
expressed in Cooper v. Aaron, supra, that state authorities 
are “duty bound to devote every effort toward initiating 
desegregation” (358 U. S. at 7). This last mentioned factor, 
in addition to the school board acknowledgment that the 
transfer provision perpetuated segregation, serves to 
differentiate the record in this case from that in Kelley.

R e lie f

/ For the foregoing reasons appellants respectfully sub­
mit that the judgment of the court below should be reversed 
and that the cause should be remanded with directions to 
the trial court to :

1. Enter an injunction restraining the appellees forth­
with from further refusing to admit the^ appellants to 
schools which they are qualified to attend on the grounds'- &K' J 
of their race or color; and

2. Enter an order directing appellees to formulate and 
submit within a specified time period a new plan for the 
desegregation of the dSmxxvrtle" schools, which .plan shall:

O 6^ '"T  ^

a. provide for only such delay of desegregation as is 
clearly necessitated |>y specifically identified administrative 
obstacles to desegregation, unrelated to such matters as 
community hostility or sentiment, the racial prejudices of



38

pupils, patents, teaeliers, or others, or apprehensions of 
violent or other resistance to desegregation;

b: afford opportunity for pupils at all grade levels to 
obtain desegregation; and
c%,provide for the abolition of pupil assignments and 

transfers based on race or color, and the abolition of racial 
designations for schools.

Respectfully submitted,

Carl A. Cowan

2212 Vine Avenue, S. E. 
Knoxville 15, Tennessee

Z. Alexander L ooby and
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

J ack G r e e n b e r g  and
T hurgood Marshall 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

J ames M. Nabrit, III 
Of Counsel



38