Newspaper Page Text
PAGE 8—MAY, 1962—SOUTHERN SCHOOL NEWS
TENNESSEE
Davidson County’s Gradual Plan
Upheld by Federal Appeals Court
NASHVILLE |
he U.S. Sixth Circuit Court
of Appeals on April 5 upheld
U.S. District Judge William E.
Miller’s school desegregation plan
for Davidson County (Maxwell
et al v. Davidson County Board of
Education, SSN, September, 1961,
and previous).
Under Miller’s plan, the county de
segregated its first four grades in Jan
uary, 1961, the fifth grade last fall, and
will desegregate one grade a year here
after. This places the county schools on
a level of desegregation identical to
that of the Nashville city schools.
Negro plaintiffs had challenged the
plan’s transfer provision on the
grounds that it is based on race, and
had also asked immediate admission of
several Negro students involved in the
suit to previously white schools. The
students are in grades too high to be
covered by the plan.
The transfer provision, identical to
that in the Nashville plan previously
upheld by the courts, allows students
to transfer from a school where their
race is in a minority. The appeals tri
bunal ruled that the transfer provision
is not “in and of itself illegal or un
constitutional,” but warned that it must
not be used as a means to perpetuate
segregation.
Knoxville Also Upheld
Just two days earlier, the court had
upheld a similar transfer provision in
the Knoxville school desegregation case
(Goss et al v. Knoxville Board of Edu
cation, SSN, April).
At the end of the month, attorneys
for the Negro plaintiffs said no de
cision had yet been reached on whether
to take the case to the U.S. Supreme
Court. The high court has never ruled
directly on the transfer provision. In
the Nashville case (Kelley et al v.
Nashville Board of Education), it re
fused to grant certiorari, allowing the
Sixth Circuit decision to stand. Since
then, however, there has been a con
flicting decision by the Fifth Circuit
Court of Appeals which struck down
a similar transfer provision in the
Dallas case (Boson v. Ripper/).
In denying the request for immediate
admission of the Negro plaintiffs to
Davidson County schools on an excep
tional basis, the Sixth Circuit Court
said:
“As previously indicated, we think
the Supreme Court contemplated that
Tennessee Highlights
The U.S. Sixth Circuit Court of
Appeals upheld U.S. District Judge
William E. Miller’s plan for school
desegregation in the Davidson
County case.
The Memphis Board of Education
planned to appeal the Memphis
case to the U.S. Supreme Court,
following the Sixth Circuit Court’s
decision that the Tennessee Pupil
Assignment Law could not be used
as a desegregation plan.
The Shelby County Board of
Education deferred action on a pro
posal that it desegregate the county
schools voluntarily.
At a meeting on May 4 the Van
derbilt University Board of Trust
voted to desegregate all divisions of
the University.
A biracial group of Episcopal
clergymen “sat in” for three days at
a restaurant at the University of the
South, then gave up attempts to de
segregate the facility.
A newly formed Negro voters
group said it plans to question all
candidates for governor in Tennes
see before deciding whom to sup
port.
A Citizens Council was formed in
Nashville.
there would have to be plans for the
transition and that some individual
rights would have to be subordinated
for the good of the many. The smooth
working of a plan could be thwarted
by a multiplicity of suits by individuals
seeking admission to grades not yet
reached in the desegregation plan.”
The county now has 110 Negroes at
tending classes with white children in
15 biracial schools.
★ ★ ★
Memphis Plans Appeal
To U.S. Supreme Court
A request for a rehearing in the
Memphis case (Northcross et al v. City
of Memphis Board of Education) was
rejected April 26 by the U.S. Sixth
Circuit Court of Appeals, and school
board attorneys immediately began
! planning an appeal to the U.S. Su-
] preme Court.
The board voted April 12 to appeal
the case after the appeals court held
that Tennessee’s Pupil Assignment
Law could not be used as a desegrega
tion plan (SSN, April).
Mrs. Lawrence Coe, board member
who cast the sole vote against an ap
peal, said an appeal would be “a futile
waste of tax money and would cause
confusion in the community as to the
good faith and intentions of this board
in obeying the law.”
Urges Prompt Plan
She added that the board and its staff
“need every bit of time available now
for the development of a wise plan (of
desegregation) under which we may
work toward meeting the needs of all
the children in our schools.” She urged
the board to submit a plan to go into
effect with the beginning of the 1962-63
school year.
Mrs. Coe said she agreed with the
appeals court in its March 23 ruling
that the Pupil Assignment Law cannot
serve as a desegregation plan.
However, she praised the “good faith
and fairness” of the other board mem
bers in using the act to place 13 Negro
first-graders in four previously all-
white schools this year. The other mem
bers of the board are William D. Gal-
breath, president, John T. Shea, Julian
Bondurant and Mrs. Arthur Seessel, Jr.
★ ★ ★
Court To Hear Objections
To Obion County Proposal
U.S. District Judge Bailey Brown set
May 11 for a hearing on Negro objec
tions to the Obion County school de
segregation plan (Vick et al v. Obion
County Board of Education, SSN, Jan
uary) .
The plan, filed by the board of edu
cation in March, provides for total de
segregation of the five county schools
beginning this fall, but includes a trans
fer provision similar to that upheld by
the Sixth Circuit Court of Appeals in
the Nashville and Knoxville cases, but
stricken down by the Fifth Circuit
Court of Appeals in the Dallas case and
by U.S. District Judge Frank W. Wilson
in the Chattanooga case.
Attorneys Avon Williams Jr. and Z.
Alexander Looby of Nashville, who
represent the Negro children, said they
will file objections to the transfer pro
vision.
Candidates Attend Political Rally
Tennessee's four candidates for governor are pictured with Jackie Robinson, center
who spoke in Nashville at a rally held by a newly formed Negro group. From
left are: Carl Fry, P. R. Olgiati, former Gov. Frank G. Clement and William Farris.
Knoxville Board Studies
Court’s Speedup Order
Members of the Knoxville board of
education were studying the April 3
decision of the U.S. Sixth Circuit Court
of Appeals before deciding what type
of plan to submit to speed up the city
schools’ desegregation.
The court’s decision held that “more
grades than contemplated by the
board’s plan should now be desegre
gated.” (Goss et al v. Knoxville Board
of Education, SSN, April.)
“In the light of the board’s experi
ence with the present plan,” the court
said, “it should be able to submit an
amended plan that will accelerate de
segregation and more nearly comply
with the mandate of the Supreme
Court for ‘good faith compliance at the
earliest practicable date.’ ”
T. N. Johnston, superintendent of the
city schools, said copies of the appeals
court decision had been given to all
school board members, but no discus
sion of what action to take had yet
been held.
U. S. District Judge Robert L. Taylor,
who approved the board’s original
grade-a-year plan, had not set a date
for further hearing in the case.
★ ★ ★
Court Order Entered
In Chattanooga Case
U.S. Dist. Judge Frank W. Wilson
entered a formal order April 19 direct
ing Chattanooga to begin a desegrega
tion program in its city schools this
fall.
The order, following the lines of Wil
son’s two memorandum opinions in the
case (Mapp et al v. Chattanooga Board
of Education), provides for a gradual
desegregation of the city schools to be
completed by September, 1968. It al
lows the school board to “adopt any
admission or transfer plan as may in
their judgment be reasonable or proper
for the operation of the Chattanooga
public schools; provided, however, that
no admission or transfer plan may be
based upon race and have as its pri
mary purpose the delay or prevention
of desegregation in accordance with the
plan herein approved.”
Negro plaintiffs, represented by Mrs,
Constance Baker Motley of New York,
were expected to appeal some portions
of the decision, but no formal notice
had been given by the end of the
month.
Political Activity
Group Prepares
To Query Candidates
The president of a newly formed
Negro voters group in Davidson County
told a Nashville rally April 15 that all
Tennessee’s candidates for governor
will be asked to answer a questionnaire
on matters of Negro interest.
“The candidate giving the most satis
factory answers will get the support of
both state and local groups,” said Avon
Williams Jr., Nashville attorney.
Williams spoke at a rally of the Da
vidson County Independent Political
Council. He said Negroes have them
selves to blame for many of their prob
lems.
“But,” he added, “we can do some
thing about it.”
Jackie Robinson Speaks
Featured speaker at the rally was
Jackie Robinson, the first Negro to en
ter major league baseball, and now an
executive of a New York restaurant
chain.
“The vote is our most priceless pos-
(See TENNESSEE, Page 9)
Text of Appellate Court’s Order in Knoxville Case
The U.S. Sixth Circuit Court of
Appeals on April 3 ordered Knox
ville, Tenn., to drop its grade-a-
year plan and to speed its school
desegregation. The court upheld a
provision allowing children to
transfer from a school in which
their race was in a minority. Ex
cerpts from the text in Goss et al
v. Board of Education follow, with
subheads added:
. . . The plan called “Plan No. 9”
provides for school zoning based upon
location and capacity of school build
ings and admission to schools by rea
son of residence in a zone without
reference to race; discontinuance of
racial segregation in steps of one grade
a year, beginning with the first grade,
effective with the school year, begin
ning 1960-61, and a system of transfers
in which the following will be recog
nized as some of the valid conditions
for transfer: “a. When a white student
would otherwise be required to attend
a school previously serving colored
students only; b. When a colored stu
dent would otherwise be required 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.” . . .
On May 17, 1954, the Supreme Court
decided, in Brown v. Board of Educa
tion, . . . “that in the field of public
education the doctrine of ‘separate but
equal’ has no place. Separate educa
tional facilities are inherently unequal.”
The Court held that segregation of
Negro and white children for school
purposes on a racial basis deprived
Negro children of equal protection of
the laws guaranteed by the Fourteenth
Amendment to the Constitution of the
United States. Thereafter, the mainte
nance of “Negro” schools and “white”
schools was a violation of the United
States Constitution.
The Court, according to the second
Brown decision . . . realized that the
transition required by its first opinion,
from a custom and practice of so long
standing, could not easily be accom
plished and that administrative prob
lems would be encountered which
would prevent immediate abandonment
of the biracial systems then in effect.
Planning Needed
It was thereby recognized that some
planning would have to be done to
adapt a particular local system to the
new method of operation and that in
the process the rights of some individ
uals would have to be subordinated
to the common good of posterity . . .
We appreciate that in such a transi
tion, as is here involved, emotions are
deeply stirred and sensitive feelings
touched. But these must give way to
the mandates of the Supreme Court.
As that Court said in Cooper v. Aaron,
. . . “law and order are not here to
be preserved by depriving the Negro
children of their constitutional rights.”
It has been nearly eight years since
the first Brown decision and under the
plan before us the first and second
grades are now integrated. The evi
dence does not indicate that the board
is confronted with the type of admin
istrative problems contemplated by the
Supreme Court in the second Brown
decision. That the operation of schools
on a racially segregated basis is a vio
lation of the Fourteenth Amendment
and that the constitutional and statu
tory requirements of the state of Ten
nessee prohibiting the mixture of races
in schools cannot be enforced are no
longer debatable or litigable questions.
This has been obvious and evident
since May, 1954.
The position of the board that it
would continue to operate under these
unenforcible laws, until compelled by
law to do otherwise, does not commend
itself to the Court, for the acceptance
of a plan that provides for a minimum
degree of desegregation. In the second
Brown case, the Court said, . . . “The
burden rests upon the defendants to
establish that such time is necessary
in the public interest and is consistent
with good faith compliance at the
earliest practicable date.” In our judg
ment, the defendants have not sus
tained this burden. We do not think
that the twelve-year plan of desegrega
tion adopted at this late date meets
either the spirit or specific require
ments of the decisions of the Supreme
Court.
Transfer Feature
The transfer feature of the plan
comes under sharp criticism of the
plaintiffs. They claim that the operation
of such a plan will perpetuate segrega
tion. We do not think the transfer pro
vision is in and of itself illegal or
unconstitutional. It is the use and
application of it that may become a
violation of constitutional rights. It is
in the same category as the pupil as
signment laws. They are not inherently
unconstitutional. Shuttlesworth v. Bir
mingham Board of Education, . . . They
may serve as an aid to proper school
administration. A similar transfer plan
was approved by this Court in Kelley
v. Board of Education of City of Nash
ville . . . We adhere to our former rul
ing with the admonition to the board
that it cannot use this as a means to
perpetuate segregation. In Boson v.
Hippy, supra, the court said . . . the
transfer feature “should be stricken
because its provisions recognize race
as an absolute ground for the transfer
of students, and its application might
tend to perpetuate racial discrimina
tion.” (Emphasis added.) This transfer
provision functions only on request and
rests with the students or their parents
and not with the board. The trial judge
retains jurisdiction during the transi
tion period and the supervision of this
phase of the reorganization may be
safely left in his hands.
Some of the named plaintiffs seek
orders restraining the defendants from
refusing them admission to certain
white schools. The district judge denied
the requests for such orders. The ques
tions presented by this phase of the
case are moot as to some of the plain
tiffs for the reason that they have now
graduated from high school. When the
defendants have complied with the
mandate of this Court to submit an
accelerated plan, looking to the re
organization of the Knoxville schools
on a racially nondiscriminatory basis,
the questions of individual admission
to so-called “white” schools may be
moot as to some of the other plaintiffs
now in elementary schools.
Special Courses
Judge Taylor wisely withheld ap
proval of the plan insofar as it denied
Negro students the right to take the
technical and vocational courses offered
at Fulton High School. The board
should, as he suggested, present with
in a reasonable time a plan that would
permit all Negro students who desire
and are qualified to have an oppor
tunity to take the special courses of
this high school.
As previously indicated, we think
the Supreme Court contemplated that
there would have to be plans for the
transition and that some individual
rights would have to be subordinated
for the good of many. The smooth
working of a plan could be thwarted by
a multiplicity of suits by individuals
seeking admission to grades not yet
reached in the desegregation plan.
We think Judge Taylor was correct
in denying injunctive relief. . . .
Affirmed and Modified
In conclusion, we affirm the judg
ment of the District Court in the fol
lowing respects: the approval of the
plan insofar as it pertains to school
grades already integrated; the approval
of the plan as to items three and f our
thereof, providing for zoning or dis
tricting based upon location and capac
ity of school buildings and the p er "
mission to attend schools designated
for their zones; the approval of the
plan as to transfers subject to it being
used for proper school administration
purposes and not for perpetuation ot
segregation; the rejection of the p}®®
so far as it pertains to Fulton Hig* 1
School and the order to the board to
resubmit a plan in a reasonable thn e
that will permit Negro students to ha' e
the advantage of the special course*
of that high school and the denial 0
injunctive relief.
We modify the judgment of the
trict Court insofar as it approved tn
board’s plan for continued segregati 0 ”
of all grades not reached by its grade
a-year plan. It is not the function ®
this Court to formulate or dictate ®
the board a plan for the operation 0
the Knoxville schools. It is, likew'is^
not our intention to require immed 18
total desegregation. We do belief'
however, that more grades than con
templated by the board’s plan sh° u L
now be desegregated. In the ligW .
the board’s experience with the P rese , t
plan, it should be enabled to subnn
an amended plan that will accele r3 ,,.
desegregation and more nearly comP
with the mandate of the Supr e
Court for “good faith compliance at
earliest practicable date.” . . .
# #
tj
•pic
th e