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PAGE 10—AUGUST 1959—SOUTHERN SCHOOL NEWS
TENNESSEE
Nashville’s Gradual Plan
To Be Challenged Anew
NASHVILLE, Term.
ttorneys for Nashville Ne
gro parents announced July
30 they will appeal the city’s 12-
year stairstep school desegrega
tion plan to the United States
Supreme Court.
The plan, first placed in opera
tion in the Fall of 1957, was ap
proved last summer by U.S. Dist.
Judge William E. Miller and up
held this June by the Sixth Cir
cuit Court of Appeals in Cincin
nati. Meanwhile, in accordance
with the plan, Nashville school
officials made preparations to de
segregate the third grade of city
schools this Fall. (See “Legal Ac
tion.”)
Memphis State University announced
it will enroll qualified Negroes as stu
dents this fall, and Federal District
Judge M. S. Boyd declined to issue an
injunction against the university. Two
Negro girls said they “definitely ex
pect” to enter the university this fall.
They passed the MSU entrance exam
inations last year. (See “In The Col
leges.”)
out reference to race, and students are
assigned to the school for the zone in
which they live.
• However, a student may request a
transfer if he is assigned to a school
where the majority of the students are
of the other race.
In practice this has meant that rela
tively little desegregation has taken
place. Last year, for example, about
150 Negro first and second grade stu
dents were assigned to formerly all-
white schools, and 70 white students
were assigned to formerly all-Negro
schools. All the white students and 123
of the Negro students requested and
were granted transfers to schools of
their own race. This left 28 Negro
children in seven formerly all-white
schools.
This fall, Nashville school officials
estimate, total enrollment in the city
schools for all grades will be 30,471,
of which 18,162 will be white and 12,-
309 Negro. About 10,180 students are
expected in the first three grades which
will be desegregated then. Of these,
5,725 will be white, and 4,455 Negro.
Due to residential segregation, how
ever, only an estimated 225 Negro
children will be assigned to white
schools, and about 105 white children
will be assigned to Negro schools. How
many will transfer, of course, is not
known.
In announcing the decision to appeal
the plan and press for immediate, total
desegregation, Looby said the Negro
plaintiffs will rely largely on the argu
ments set forth in their court of ap
peals brief. These are the main ones:
• A court may not take community
opposition into account as a justifica
tion for delaying school desegregation.
• The Nashville plan’s transfer sys
tem violates the equal protection clause
of the Fourteenth amendment because
it uses race as a criterion.
• The board of education failed to
show that delay was necessary for the
solution of any particular adminstrative
problem.
These arguments were rejected, how
ever, in the 35-page unanimous opin
ion of the Sixth Circuit Court of Ap
peals June 17, which held that the
findings of Dist. Judge William E. Mil
ler were sustained by the evidence.
“We cannot say the district court’s
conclusions . . . were entirely erron
eous,” the decision said in part, “. . .
nor can we say that the gradual plan
of integration beginning in the first
grade, and ultimately encompassing all
grades, is clearly an unreasonable one.
“Even were we inclined to differ with
the program, and even though we felt
that it was too gradual in its applica
tion, we could not say that the judg
ment approving the plan was clearly
erroneous and that the plan in this
regard was not reasonable.”
President J. Millard Smith of Memphis
State University told the federal district
court July 10 he had been ordered by
the Tennessee Board of Education to
admit qualified Negroes to the univer
sity this fall.
Judge Marion S. Boyd then ruled a
suit against the university was a “moot
issue” and refused to issue an injunc
tion.
“There is no need to press for in
junction against something [continued
segregation] they have stated in open
court they do not intend to do,” he said.
Boyd’s ruling suspended indefinitely
any action on the suit, filed last year by
four Negro students who had passed
entrance examinations for the univer
sity. The four were not admitted when
Smith obtained a year’s delay from the
state Board of Education in carrying out
the desegregation plan.
PLAN TO ENTER
Two of the students said they “defin
itely expect” to enroll at MSU this fall.
The two, both Memphis girls and both
19, are Sammie Burnett and Marvis
Kneeland.
One Negro student was admitted to
Thurgood Marshall, chief legal coun
sel for the National Association for the
Advancement of Colored People, de
nounced pupil assignment laws and 12-
year stairstep desegregation plans as
“mere token compliance” with the Su
preme Court’s 1954 decision. He told the
16th Annual Race Relations Institute at
Fisk University both types of plan are
wrong and “legally and morally they
do not comply with the requirements of
the Constitution.” (See “What They
Say.”)
Following the dismissal of their suit
against the Knoxville school board
(see Southern School News, July
1959), parents of 20 Knoxville Negro
children petitioned the board to deseg
regate the city schools voluntarily.
(See “Community Action.”)
As the deadline passed for candidates
to file in the Memphis city elections, a
Negro, Russell B. Sugarmon Jr., quali
fied to run against five white candi
dates for public works commissioner.
There are also two Negro candidates
for the city school board, one for tax
assessor and one for juvenile court
judge. (See “Political Activity.”)
Nashville Negro parents will carry
their demand for immediate desegre
gation of the city schools all the way
to the U.S. Supreme Court, their at
torneys said July 30.
Attorneys Z. Alexander Looby and
Avon Williams said they will petition
the high court for a writ of certiorari
in the case, following the recent de
cision by the Sixth Circuit Court of
Appeals upholding the school board’s
12-year stairstep plan for desegrega
tion.
The “Nashville Plan,” as it has come
to be known, thus will become the first
12-year plan to be tested all the way
in the federal courts. Many other
Southern cities have indicated a live
interest in the plan, and if it is upheld
by the Supreme Court it is expected
to be widely followed where desegre
gation takes place.
ACTION ANTICIPATED
Reber Boult and Edwin F. Hunt Jr.,
attorneys for the Nashville board of
education, said they were “not sur
prised” by the decision to appeal.
“We anticipated a final effort to re
verse the ruling,” Hunt said. “However,
with a clear and adequate finding by
the district judge in the case, and with
an equally clear decision by the cir
cuit court of appeals, we are hopeful
that the Supreme Court will either
decline to take jurisdiction, or if it
assumes jurisdiction, will affirm.”
These are the principal provisions of
the plan, which has been in effect since
the faff of 1957:
• One grade a year is desegregated
in the city schools, beginning with the
first grade in the fall of 1957 and work
ing upward.
• School zones for the desegregated
grades are drawn geographically with
C^rade-sd}- lyjear -^dpproucd
Court Hands Down Nashville Decision
Following are excerpts of the decision handed down June
17 by the U. S. Court of Appeals for the Sixth Circuit in
the Nashville school desegregation case (Robert W. Kelley
et al v. Board of Education of the City of Nashville):
. , . The entry of the judgment approving the . . . plan
of desegregating the first grade . . . gave rise to violence
on the part of criminal elements opposed to desegregation.
... It was the Board of Education of the city of Nashville
that, when the trouble started, immediately pressed for the
injunction against the acts of violence and coercion; and
it was police of the city of Nashville that, when the trouble
started, immediately pressed for the injunction against the
acts of violence and coercion; and it was police of the city
of Nashville that curbed the acts of intimidation and en
forced public order. It is to be remarked that none of the
illegal acts, riotous conduct, or inflammatory propaganda
hampered either the district judge or board of education
in carrying out their duties, firmly and swiftly, in the face of
terroristic threats and disorder that characterize such un
lawful groups in every part of the country where riots,
arising from any cause, have in the past occurred. . . .
... It appeared that, from the outset, the board of educa
tion frankly and openly recognized its obligation to maintain
the school system upon a racial non-discriminatory basis,
and that it had endeavored ... to find a solution which
would accomplish the transition as soon as reasonably prac
ticable consistent with the public interest and the efficient
operation of the schools. . . .
If an order for total desegregation were entered, . . . every
one of the public schools of the city would be affected, al
though, as to some of the schools, there would probably be
one Negro child—or only a few Negro children—in such a
school zone; and as to others, the same situation applies with
regard to white children. . . . Here . . . comes into play
a factor that complicates the desegregation of schools—
residential segregation, one facet of the problem that . . .
results in what might be called economic segregation. . . .
“In cities having a large Negro population, Negroes usual
ly live, as a group, in certain areas, largely because of the
fact that residential restrictions ... have for many years
made it impossible for them to live elsewhere, and, as a re
sult, especially in cities of the North, they have been con
fined to rundown residential areas with the poorest accom
modations, at high rents. . . . Reference is made to the fact
as indicating the reason why schools in certain areas are
attended wholly by Negro children, both in states where,
heretofore, segregation has been sanctioned by state law as
well as in states where, theoretically, segregation has been
condemned.
... Cases involving desegregation, like other cases, depend
largely on the facts. While the law has been stated, perhaps
as definitely as it can be stated at the present time, by the
Supreme Court, nevertheless, its application depends upon
the facts of each particular cause. . . .
■ . . There is no claim that the board of education did
not act in good faith. The plan is supported by practically
all of the teachers in the schools. The reasons for the sup
port of the plan were clearly given by the superintendent
of education, the former superintendent of schools, by the
acting chairman of the board of education, and by one of
the most experienced principals and teachers where the
desegregation plan was operating.
Among those reasons, including difficulties arising from
the recruitment of teachers, was the most persuasive one—
that children in the first grade had no sense of discrimina
tion; that as the classes of Negro and white children pro
gressed year by year up through high school, they would
know no feelings of racial discrimination, until the entire
school system had been harmoniously integrated.
Also, it is to be said that this year, the first three grades of
all public schools in Nashville will have been desegregated,
leaving, at most, a nine-year period thereafter for complete
integration. Moreover, it may be . . . that in the light of
future events the proposed program of integration extends
over too long a period and that a complete integration of
all grades could be effected in a shorter space of time than
now contemplated by the board. If in the future . . . i
could be shown that more time was being taken than neces-
sary, the district court would have the power to see that the
plan was accelerated. . . .
This [voluntary transfer] provision does not fall within
the ban on the maintenance of segregated public schools by
cities where permitted—though not required—by statute.
. . . There is no evidence before us that the transfer plan
is an evasive scheme for segregation. If the child is free to
attend an integrated school, and his parents voluntarily
choose a school where only one race attends, he is not being
deprived of his constitutional rights. It is conceivable that
the parent may have made the choice from a variety of
reasons—concern, that his child might otherwise not be
treated in a kindly way; personal fear of some kind of eco
nomic reprisal or a feeling that the child’s life will be more
harmonious with members of his own race.
In common justice, the choice should be a free choice, un
influenced by fear of injury, physical or economic, or by
anxieties on the part of the child or his parents. The choice
provided in the plan of the [school] board is, in law, a free
and nonsegregated school that violates the child’s constitu
tional rights. . . .
While ... the parent makes the choice for the small child,
that is the only reasonable method, if such a choice may be
made. We see no deprivation of right, under the evidence
before us. Doubtlessly, fewer Negro children, or their par
ents, will avail themselves of the transfer provisions as grade
after grade becomes integrated and more Negro children at
tend such desegregated schools as time goes on. . . . If it
should appear . . . that there are impediments to the
exercise of a free choice, and that a change should be made
in the plan to carry out, in good faith and with every safe
guard to the children’s rights, the mandate of the Supreme
Court, the district court, having retained jurisdiction dur
ing the entire period of the process of desegregation . . .
shall make such modification in its decree as is just and
proper. In the record before us, the judgment of the district
court does not deprive any of the children of equal protec
tion under the Fourteenth Amendment.
We consider, then, the issue that is raised upon cross
appeal: whether the Fourteenth Amendment is violated by a
plan, authorized by [Tennessee] state statute, in which local
school boards may provide separate schools for Negro and
white children, whose parents voluntarily elect that such
children attend school with members of their own race.
. . . The district court held that ... the statute providing
for a census and for separate schools for Negro children,
whose parents so elected, would be contrary to the Constitu
tion since such schools would not only be separate, but sep
arated because of race; and that separation, once made,
would be compulsory; and that after such election, no Negro
students would have the right to attend a school for white
children, solely because of his race, nor could any white
child, after an election, ever attend a school which was at
tended by Negro children. The Constitution prohibits the
states from maintaining racially segregated public schools.
. . . The [district] court pointed out that the transfer
system which it had approved, giving Negro students and
white students an equal right to transfer from one school to
another, was a limited right. ... It did not envisage the
maintenance of schools from which students could be ex
cluded by the authorities because of their race.
The district court held that ... the statute . . . was pat
ently and manifestly unconstitutional on its face, . . . and
we concur. . . .
The final issue is raised by . . . the amicus curiae: whether
absent appropriate legislation by Congress, for the enforce
ment of the integration of the races in the public schools
of the several states, the courts of the United States have
power to compel, by court order, the integration of the races
in such schools.
The contentions advanced in this argument resolve them
selves into the proposition that, as the amicus curiae states
it, the decision of the Brown case does not rise to the
quality of “law of the land” . . .
The argument of the amicus curiae must be held to be
without merit in law.
# # #
the university under special circum
stances last April. He was Joseph Terry
Boyd, 21, a hospital corpsman at Mem
phis naval air station, Millington. He
enrolled in special extension courses
which MSU set up at the base.
WHAT THEY SAY
Thurgood Marshall told a Fisk Uni
versity audience July 7 that “massive
resistance” to school desegregation in
the South has given way to “token com
pliance.”
“The two chief measures for this are
the pupil assignment law and the 12-
year plan,” he said in an address at the
16th annual Race Relations Institute.
“It is our position that both of these
are wrong,” he said, “and that legally
and morally they do not comply with
the requirements of the Constitution.”
OBJECTIONS TWOFOLD
Marshall, chief legal counsel for the
NAACP, listed these two ojections to
12-year plans in general:
1) Children who are already in school
before the plans begin with the first
grade “are denied their rights forever.”
2) In families with two or more chil
dren, problems are created where one
attends an integrated school and another
a segregated school.
“As for the so-called pupil assign
ment laws, everyone admits they were
set up for the purpose of getting as little
integration as possible,” he said. “They
set up indefinite standards which no
body can meet.”
Later in an interview with Southern
School News, Marshall declined to
comment specifically on the Nashville
or Delaware plans, both of which are
still in litigation, but said his remarks
on 12-year plans in general applied to
them.
He said he did not think the Nashville
plan would necessarily become a
“model” for other communities in the
South.
“I still think every community is dif
ferent, and each one is going to do the
thing its own way,” he said.
Asked about school closings in Prince
Edward County, Va., Marshall said the
NAACP has no plans at present, but
“several ideas” which it may try.
“SURPRISE” IN GEORGIA
If schools are closed in Georgia, he
said, the NAACP has a plan “which will
surprise everyone.”
He declined to elaborate.
About 125 ministers, social workers
and other community leaders, white and
Negro, attended the two-week Race
Relations Institute. Other speakers in
cluded Patrick Murphy Malin, executive
director of the American Civil Liberties
Union; Joseph Monserrat, director of the
Puerto Rican migration service; Mrs.
Helen Peterson, executive director of the
National Congress of American Indians,
and Dr. Herman Long, chairman of
Fisk’s race relations department, and
director of the Institute.
The parents of 20 Knoxville Negro
children petitioned the city school board
July 13 to “take immediate steps to re
organize the public schools under your
jurisdiction on a non-discriminatory
basis.”
The petition also asked the board to
work out an overall desegregation plan
“as soon as possible.”
The petition, presented to the board
by three Negro ministers, followed the
June decision of Federal District Judge
Robert Taylor holding that three former
members of the board should not be
parties to an integration suit. The ruling
virtually killed the suit.
The board said the petition was re
ceived too late to be placed on the
agenda but pledged serious study of its
contents.
CHANGE IN MEMPHIS
In Memphis this fall, a formerly all-
white school will become all-Negro and
vice versa, due to population shifts.
All-white Pope school will become
all-Negro Grant school and vice versa.
Both school buildings are about the
same age and will be renovated by
school opening. Both have the same
number of classrooms and an enroll
ment of about 700.
The white school includes grades one
through six, the Negro grades one
through eight.
Unless some white candidates with
draw, Russell B. Sugarmon Jr., a Mem
phis Negro attorney, may well become
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