*1 counsel to institute Indiana and prosecute appeal. said Drap- attorney appointed
We Porter R. represent peti- bar,
er of the Indiana tioner in court. We commend Draper
thank able Mr. service petitioner. he has rendered on behalf remanded,
Order vacated and case
with directions. Infants, by al.,
Vivian CALHOUN et Fred Calhoun, friend, father and next al., Appellants, et al., Appellees.
A. LATIMER et C.
No. 20273. Appeals
United States Court of
Fifth Circuit.
June
Rehearing Aug. Denied
303 review, time;1 for the first for desegregation of the Atlanta school system. pur- was formulated order, approved by suant to court and January 20, court on 1960. It became May 1, effective on 1961 for the school beginning September term 1961-62 applied It to the twelfth and pur- eleventh at that time for the poses grade of desegregation, to the tenth beginning term, with the 1962-63 school applied grade and will be to the ninth beginning with the 1963-64 school term. It progressively is to be succeeding next each school term thereafter until all in the school included, desegre- have been gated. sequence in this events case began filing complaint with the of a on January 11, by appellants seeking equal protection guaran- of the laws teed the Fourteenth Amendment Constitution; Brown v. Board of Topeka, 1954, Education 347 U.S. 873, having pro- S.Ct. 98 L.Ed. scribed public racial discrimination in education. The District Court had first enjoined appellees, members of the Board City Atlanta, of Education of the superintendent, the school from enforc- pursing policy, practice, cus- tom, usage requiring permit- Motley, York New Baker Constance ting segregation racial operation in the Jr., Hollo- City, Donald L. Moore, E. E. engaging any of the and from Greenberg, Atlanta, Ga., well, New Jack and all action which limited or affected appellants; Norman City, for York to, in, admission attendance or the educa- Walden, City, Amaker, York A. T. New appellant children, any of the tion Ga., Atlanta, counsel. similarly situated, children Savage, Latimer, Newell J. C. A. C. the basis of A race. Atlanta, Ga., appellees. Edenfield, period for reasonable of time was allowed comply which to order, within with the * BELL, RIVES, LEWIS Before bringing for about a transition to a Judges. Circuit operated on the basis required of race. The school board was Judge. BELL, B. Circuit GRIFFIN present on or before December I. designed bring about com- appeal denying pliance order, This from an order with the and which would brings up provide prompt further relief for for a motion and reasonable Circuit, sitting by designa- refusing Tenth to make the Of effective for the tion. school term 1960-61 but dismissed the appeal. appeal Appellants filed notice from the March order court dated Negro children public hundred three Some start toward application systematic child obtained Atlanta, and and one schools of achieving 1961-62 term. for the de- forms for transfer effective method thirty Only of these speed. one segregation hundred and all deliberate *3 Negro by actually children. were filed contingent upon submitted, planA was granted reas- Ten of these were by of statutes State the enactment of signment eleventh made to the was put Georgia permitting to be the same grades formerly schools. white twelfth of provided procedures operation. into It sought by child the white The transfer assignment, application for the uniform transfer, Ne- of one these schools because out groes among pupils continuance denied. were to be admitted was system. the schools of the and within Educa- See Members of Stone v. largely upon plan The was modeled 1962, City Atlanta, Cir., 309 5 tion of approved placement law as constitutional one there were 638. At this time F.2d Birming- on face in its Shuttlesworth elementary hundred thirteen 1958, N.D.Ala., Education, ham Board of twenty grades through seven, and one F.Supp. affirmed, 162 358 U.S. through grades eight high schools, two was, 145. It 3 L.Ed.2d S.Ct. junior no twelve, in Atlanta. There were however, respects amended in various high Forty of the elemen- schools. one approval final meet court order before tary Negro in attendance were all schools objections appellants. some of the seventy This is two all white. while were objection plan There was also plan reached true since the has not still being contingent changes in the grades. elementary five There were segre- required state laws which then high Negro all all white seventeen among gated schools, penalty, under reduced schools. latter number was This support. others, of loss financial of state transfer of the ten to thirteen contingency The court limited the to one Negro Forty four additional students. year grades plan and included two in the Negro students, out some two hundred of transfer, year operation. for the first of its It was sixty requesting trans- six were year invoked be any for the 1961-62 school 1962-63 to white schools for the ferred event. See Calhoun v. Members resulting in the term City Atlanta, Board of Education of N.D.Ga., 1959, formerly all additional seven 401; D.C., F.Supp. to date is that there result F.Supp. integrated high schools in eleven are Atlanta, Negro high schools and five all II. high schools. six white Georgia changed, were ob- laws intelligence viating public education, Special harm to were tests making plan seeking possible given for the it those students proceed require plan on schedule. board to but school under longer 1962; thus, prior classified as white were abandoned was Schools ment plan contemplate practices Negro, did center on but will our discussion procedures required would continue in the each child under the assigned Only to which for the then a few of the seventeen school present school term unless and until or criteria set out factors transferred, request, ability to another A were used. scholastic routinely given every Applications for transfer were test school. achievement May May question filed between in the to be child considering year. This was the method used in school each agreed upon applications. rather than The standard of transition used was reassignment requiring other the transferee had to score a some average Any equal officials. child was free to at least the class school to which transfer transfer to within the in the was re seek requirement is, plan. quested. Such a
3Q5
ap
appear
discriminatory per
the standard of
course,
when
does
se
Proximity
ability
plied only
scholastic
the same.
basis was
students.
student to
of the residence of the
requesting
The form used in
transfers
subject
question,
to variation
school in
designed
as well as the
itself is
reasons, and also
for educational
apply
assignment
in the admission and
given
application for the
reasons
procedure,
pro-
as well
inas
the transfer
requested
factors
transfer were
cedure. The
District Court said
given per
used. Each student was also
sonality
regard:
interview
school officials
contemplates
“Essentially
Plan
probable
or failure in
determine
success
shall,
pupils
the new school.2
*4
to some
unless transferred
until and
effective, all
When the
became
they are,
school,
where
other
remain
segregated
in
students
to be
.
beginning all new
already
high
assigned
were
to
being assigned by
Superintend-
only
Thus,
encompasses
to date
authority
a school
to
or his
ent
wishing
transfer,
those students
by
certain
selected
observance
entering
new students
a school for the
pro-
forth in
standards as set
grades.
desegregated
first time in the
F.Supp.
posed Plan.” 188
However,
applied
new
not
has
supra.
being
students, nor to those students
Negro applicants for
of the
Not one
during
transferred
times
than
at
other
individually
complained
has
period May
May
1 to
15 under the
any
The
at
time.
District Court
plan.
during
Transfers, other than
proceeding
a class action.
as
case is still
number,
period, not
in
are
substantial
appellants
school board
and the
Both
known to the school
transfers,
informal
board as
largely
rely
testi-
were satisfied to
distinguished
and are to be
mony
superintendent. His
school
plan,
from
called
transfers under the
testimony
that
in substance was
formal transfers.
abiding
and the
the letter
board was
approved
court.
spirit
that the criteria
is no evidence
There
assigned
they
Pupils
at-
racial-
applied
informal transfers were
were
to schools
in
among
year
discriminatory
previous
ly
informal
in order to es-
as
tended
they
they
apparently
transferees,
were free
were
'from which
tablish base
but
applied
request
a transfer. He
criteria
under the
from the
different
super-
Atlanta school
The school
contended that the
formal
transfers.
ap-
pointed
desegregated, and
that
that
the criteria
was
out
intendent testified
had
plied
included the
mention of race
been removed
in formal transfers
directory,
reports,
given
request-
official
for
from
student
the school
reason
building programs,
ing transfer,
part
and all
classi-
tests that were
longer desig-
grades,
record,
permanent
are no
teacher
fications. Schools
his
Negro. Negro
judgment
as white
assigned
stu-
to nated
or
educational
as
reasons,
previously
request,
all white
for these
dents
whether
regular
educationally justified.
participated in
Also
both
schools
would be
including
activities,
proximity
hon-
of residence to extra-curricular
considered was
banquets,
capacity
clubs and other activities
and the
the school.
school
choice,
requirements
free
on the basis
difference
of.
parents attended Parent-Teacher Asso-
transfers,
informal
formal
main,
gradua-
meetings,
events,
personality
athletic
no
ciation
that
interview
was
programs
transfers,
required
and other school activities
informal
nor
tion
contrary
faith,
rightly
is no
con-
and there
been con-
solicitude
Such
itself,
only
Negroes,
here,
to lend
at least
where
tention
demned
transition,
days
assuring
early
Roan-
School Board
Green
plan.
Cir., 1962,
oke, Virginia,
304 F.2d
of a
success
appear,
although
where done in
it would
(in
areas
still be
there will of course
School
discrimination.
free of racial
segregation
grades)
the lower
where
public
are
invited
is
to which
events
meetings
at
pro-
exists. The Court
therefore
segregated,
are
nor
anything could be
loss to see how
committees.
fessional
accomplished
or-
‘an
at this time
no
were
there
testified that
He
enjoining
con-
der
tinuing
defendants from
lines establish
or zone
attendance areas
operate a
to maintain and
some
lines are
board,
but
ed
system,’
segregated,
biracial
administratively between
times drawn
already
care
taken
for the Court has
attempt
equalize class
an
schools
January 20,
its decree of
before
There was no evidence
loads.
that de-
There is no evidence
they
race.
were based
desig-
‘continuing to
fendants are
nate
five sub
divided into
Negro white,’ nor
schools
superintendent
areas
an assistant
‘racially
maintaining
charge
area.
sub-area
of each
One
in
only
segregated extra-curricular
it,
there is
but
activities.’
living
it,
of white children
evidence
gerrymanderi
or that
it resulted
assigning
“The
teachers
ng.3
*5
personnel
other
race
of
basis
overcrowding
Negro residents.
ticularly
schools
is almost
in the school
able
standpoint of
Another
change
are under
being
in those
entirely Negro,
pertinent
populations,
in area
population
in the school
changing
needed.
populated.
schools
fact
patterns from
with
in recent
from
is that
Some
still
system par-
The
additional
white to
consider-
there is
growth
having
white
years
made in the
that defendants
students.
‘dual
area lines.’
in
by
is deferred
done)
and color
[******]
“Neither does the evidence show
question
awaiting
is not now
Proximity
ais
(as
of school attendance
further
factor considered
passed upon
maintaining
to the schools
courts
progress
of the
have
but
a
hearing
guments, held:
was
crimination
of
tegration.’
crimination
The District
crimination
involved
Order
Even
Plan was
adopted
until
Plan is
1960,and
original trial disclaimed
“There
seeking
designed
plaintiffs’'
eliminating segregation,
was the
evidence
this Court
that the Order
is no
carefully prepared
had
over a
to have ‘wholesale
could be
Court
completed
existed
disputing that dis-
appeal taken. The
only question
plan which
eliminate
counsel
offered,
period of
eliminated;
by
this
January 20,
any purpose
prior to the
of that date
its course
and
case,
years.
full
then
dis-
dis-
but
after
in-
a
ar-
ing overcrowded
assignment
their distance from the school. It
arbitrarily in connection with the
for
shown that
does
cooperation in
order,
fairly
local
ant Atlanta
approved
der
[******]
“ * * * phe pian
the defendant Board.
attack,
the sole
appear
authorities have
exist)
and in
and the number
by
Board
are sometimes
that area lines
defendants are
good
maintaining
pupils
purpose
Court,
conditions
faith
Education,
in relation to
given
administered
and
heretofore
It
changed
now un-
law and
defend-
(where
utmost
reliev-
acting
not
having
probably
Having
results
done so-and
obtained the
of evidence
3. The dearth
position
taking
approval
court,
parties
we think
each
from the
appellants
proof
oth-
shifted to
to at
burden of
burden
least
prima
showing
changes
plainly
on the board
make
facie
The burden is
er.
delay
justify
in order.
and the
under it.
were
* * *
being
primary responsibility
transferred
for elucidat-
previously designated
ing, assessing,
solving
colored schools
these
designated
problems;
previously
courts
con-
will have to
increasing
schools is
at an
sider whether
acceler-
the action of school-
year
ated
grades
each
the lower
rate
constitutes
faith
authorities
implementation
governing
Court
are reached. This
public
principles.
feels
de-
interests
constitutional
Because
mand
be
the new Plan of
posed by
Latimer, N.D.Ga., 1962,
continued
that the
be
plaintiffs.”
summarily
according
Plan now in
Desegregation pro-
displaced
Calhoun
operation
its
F.Supp.
terms
perform
tions
ther
of their
inally
[*]
hearings,
and the
[*]
heard these cases can best
proximity
possible
judicial
courts
to local condi-
need for
appraisal.
orig-
fur-
fashioning
effectuating
“In
decrees,
guided
will
courts
be
III.
by equitable principles. Tradition-
ally, equity has been characterized
questions presented may
practical flexibility
shaping
First,
be reduced
four in
number.
its
facility
remedies and
justified
ad-
can
justing
reconciling
public
light
operation
its
the results
private needs.
teachings
These cases
date,
call
and in view
the exercise of these traditional at-
Brown,
case,
supra, the second Brown
equity power.
tributes
At stake
L.Ed.
U.S.
S.Ct.
personal
plain-
is the
interest of the
1083, Cooper, infra, and the most recent
*6
public
tiffs
admission to
long
schools as
court,
of this
decisions
handed down
practicable
as
soon
aon nondiscrim-
plan
Atlanta
after the
became effective.
inatory basis. To
in-
effectuate this
Board,
Bush v.
Cir.,
Parish School
Orleans
may
terest
variety
call for
Augustus
elimination of a
1962,
491;
308 F.2d
making
of
obstacles
the
of Public
v. Board
Instruction of Escam
systems operated
transition
school
to
1962,
County, Florida, Cir.,
bia
306 F.
in accordance with the
assuming
constitutional
Second,
may,
2d
principles
May 17,
set forth in our
discriminatory
it been
in a
equity
decision.
Courts
questions
This
manner?
includes the
may properly take into account the
admission, assignment,
transfers, both
public interest in the elimination of
informal,
formal and
and extra-curricu
systematic
obstacles
Third,
lar activities.
was it
error
the
go
effective manner. But it should
postpone
to
District Court
consideration
saying
without
vitality
that the
practice relating
assignment
these
principles
constitutional
can-
Fourth,
of teachers?
did the court err
yield
not be allowed
simply
to
speeding up
suggested
be-
in not
the
as
disagreement
cause of
with them.
by appellants ?
us,
with
And
these facts before
we
giving weight
“While
to these
begin
questions
the consideration of the
public
private
considerations,
presented
pf
the
with
mandate
the Su-
require
the courts will
that the de-
preme
the
Court in
Brown
second
prompt
fendants make-a
and reason-
court,
regard
the
in mind. There
with
able start
compliance
toward full
eliminating racial
discrimination in
17,1954,
May
ruling.
our
with
Once
following
public education
its decision in
made,
such a start
the
case, supra,
first Brown
the
said:
may
courts
find that additional time
implementation
necessary
carry
“Full
con-
ruling
these
out may
principles
require
stitutional
in an effective manner. The burden
prob-
of varied
solution
local school
rests
the defendants to estab-
in;
necessary
lems. School
have
authorities
lish that such time is
however,
stances,
the courts should
is consistent
public
interest
program
school
compliance
scrutinize the
at
faith
with
make
authorities to
sure that
practicable
To that
date.
earliest
arrangements pointed
developed
may
prob-
had
consider
the courts
end,
practicable com-
administration,
toward the earliest
aris-
lems related
pletion
desegregation, and had
physical
condition
from the
appropriate steps
put
taken
program
plant,
trans-
school
the school
portation system,
operation.
into effective
personnel,
revision
of school
districts and
attendance
[*]
*»
compact
achieve a
units to
into
Nothing
areas
stay
then could
the inexorable
system determining
admission
regard.
hand of the
Constitution
public
a nonracial
on
the
basis,
complied
school
without
Some
boards
of local laws
and revision
intervention of the
Others acted
courts.
may
necessary
regulations under
order,
as
did
solving
foregoing problems.
arising
myriad,
board. The cases
but
adequacy
They
consider the
will also
each,
respect
goes
transition,
may pro-
any plans
the defendants
fountainhead,
back
Brown
problems
pose
and to
to meet these
Cooper.
conceived and
Does
racially
ato
effectuate a transition
comport
administered
with the constitu-
nondiscriminatory
system.
duty imposed
tional mandate
During
transition,
period
on school boards and District Courts?
jurisdiction of
courts will retain
desegregation,
Gradualism in
usual,
not the
if
cases.”
these
accepted
an
at least
mode with
emphasis
getting
job
tran-
Cooper Aaron,
358 U.S.
And see
sition done.
5, where, after
S.Ct.
3 L.Ed.2d
reiterating
in the Brown
was said
what
IY.
decision,
implementation
and the investi-
questions here
be the better
supervisory powers in
Dis-
ture of
background of
what
discerned
appellants
the-necessary
transition
trict Courts
by way
offered
segregated
desegregated
proposed
District Court.
systems,
court said:
*7
for
with the motion
in connection
them
circumstances,
subject
mat-
relief which is the
such
further
“Under
suggested speed up
appeal
of
directed to re-
a
of this
Courts were
ter
District
original
year
years
prompt
reasonable start
in
twelve
and
quire
five
plan
‘a
suggestion
compliance,’
and to take
Their
transition.
full
for
toward
eight
necessary
to
and nine rather
as was
was that
action
such
segre-
desegregated
September
bring
in
racial
the end of
than nine be
about
desegregate grades
They
public
gation
schools ‘with
would
in
**
September
speed.’
four, five,
Of
in
six
seven
all deliberate
many locations,
course,
one,
obedience
and three in
in
two
reassign
desegregation
They
duty
September
would
would
of
to
require
general
high
teachers, counselors, prin-
ad-
immediate
all
cipals
school
children,
open-
Negro
supervisors prior to the
otherwise
of
mission
ing
September
appro-
in
1963 on the
of school
qualified
students
as
particular
qualification and need
of
without
classes, at
priate
basis
Court,
regard
pro-
hand, a District
race or color. The same
to
theOn
per-
analysis
to
relevant factors
be followed as
of
cedure would
after
succeeding years
hostility
course,
on the
in con-
excludes
(which,
sonnel
might
desegregation),
proposed
con-
with the
nection
racial
to
sponsored,
justification
procedure. All school
existed for
school
clude .that
nonsegre-
supported,
related,
present
school
requiring
school
sanc-
qualified
extra-curricular school
gated
all
activities
tioned
admission
open
qualified
Negro
to all
In such
would be
circum-
children.
regard
plans,
as each New Orleans and Houston
or color
assum-
'without
to race
Desegregation
plan
desegregated.
is
transfers as
is
assignments
provided
draw well
basis
as
of all new students
would be
ing
desegregated grades,
in
zone
for each school
not based
school
lines
living
assigning
zone
consideration of
all children
race.
regard
race or
school without
feature,
disapproved
This court
one
suggestion that is
It is
last
color.
this
option,
nature of an
of a
which
the bare bones of this case and
desegregating
the Dallas school
.gives
question.
rise to the first
afforded a modicum of freedom
by permitting
choice
transfers on
gradual
object
Appellants
do not
Cir.,
Rippy,
basis of race. Boson v.
from,
They
speed
up
plan.
seek
do
Supreme
y. ty, Florida, supra. District the order affirm We In the meantime the Atlanta is have the context of what we within Court working. Progress is the regarding say plan, test, and the and hav had ing necessary taking place. jurisdiction transition is that the in mind respon- There has been no trouble. All continue. de will Such District Court many private to, sible pointed officials citizens have as we ficiencies cooperated have involving work, to make it and to discrimination which matters preserve public may education. be considered the Dis arise are not ad Court event trict wish, however, point We do out some having charge justed those fundamentals be borne in mind in the Dyer, supra, Ross v. See schools. handling where future of this and like matters s rule was voided. Thi the brother-sister approved plan operation. where an inis procedure followed in in line plan, speed up, effect Whether of Char v. School Dodson modify or to otherwise it is the first lottesville, supra, plan already where a in instance the school board. This recently examined operation was problems arising true as likewise Appeals for the Fourth Circuit Court connection with the administration of a respects. deficient some found plan. equipped courts are ill to run proper was affirmed with a decision Litigants ignore must deficiencies. It was there caveat officials, and school officials must said: their function not abdicate to the courts. *10 They, the-courts, action we take is based by “The like are bound the history particular interpreted and by circum- Constitution as the the Su- 312 supra. tion, Cir., 862, Aaron, Bush v. Cooper 306
preme F.2d Court. Cir., 308. mind, principles Board, Parish School this record Orleans With these desegre 491, steps re- to problem not be F.2d gation take towards discloses no that could go considerably appellants of the that the schools solved between by required judgment district the further than was the officials based on the agree ap- case, we educators, I that the this cannot school officialsas with this, judgment. us For plication affirm should forebearance wisdom, step purpose to a rather do so trust amounts backward mutual educational step I con a with than consistent what of schools. teaching the clear of the Su sider to be judgment appealed from is preme opinion Court’s written unanimous Affirmed. Goldberg by Mr. Justice in the Watson Board, there ties which no criticism that: Watson, lief. riers complimentary Before propriate did al Education lanta pealing plaintiffs should see district district court well are entitled to period Fourteenth since Brown Education, Largely RIVES, With It is gation relief Augustus majority U.S. involved “It expressly appellants now might said, Equal Protection 98 L.Ed. parties apparent expressing reasons, it court, sought to this Supreme deference I this Court is now more than because et al. v. of two in state decision, be faulted in Circuit first to be tested out without state for me be made. 83 S.Ct. opinion. v. Board of Public working as litigation Amendment.” required remarks Court for breach years, from the also public of their City Memphis, basis Court in this my agreement Judge U.S. Brown v. devise respectfully held in the because 1314, L.Ed. before litigation of what the patiently with the point I seeking made of other Boards faith Clause willingness, However, it is think, (dissenting). permit record that racial any its a method nine out 74 S.Ct. the Court seems violates faster race addition- too, segre- Instruc- them years Circuit, now, dissent. the At- first School Court Court et bar- par- 529, ap- ap- al., re- words, lanta normally that, mitted basis transfer three year based case: possible Negro alike, Negro This apply to applications result, subjected to grade, also record before never tenance indefinite cision tion of racial barriers in schools. of ‘deliberate have would types cilities proceed The essential segregation “Given the extended time which while the based comes [*] desegregated plan, been for all mandate of grades, as elapsed, it upon whatever in either the it is not to become in which contemplated [*] for a any requiring of Atlanta do not have a which today to white school is the test conducted ” with ‘all deliberate plans an about required deemed sufficient. aof white student in the requirements students, us, Negro basis analysis eight years fact, “desegregated,” disputed public Negro speed’ is that the schools of far school without fully have, programs children. delay in elimina- second “personality during as have to meet reason of the student that the grammar student from clear educational children are white both first disclosed would satisfied student for a that it is im- under the At- produced his on the same Brown that do not ago might considering the seeking concept standards for testiTand Brown In speed’ to enter coun- that grade. single inter- being de- de- fa- high per- fact this top *11 Northside, quired by he school at apply the white the not to view,” which do grade ¡students passes already into the without in the twelfth enrolled are who being grade subjected “personality inter- from to a into school, come the who having view” probable grade school officials determine reason of lower .a in the success or failure twelfth to which in a “feeder” grade. white students Negro Negro schools.1 are in students though appellants Even did the appeal original the from the decision of majority opin- pointed the out As is approving trial court the transfer ion: Schools, in the Atlanta this did not fore- the that used “The was standard right complain appellants close that, the student) Negro had (the transferee actually put into when the was equal grade the at least to score a average operation, operated it was in a manner the school class in the against clearly that discriminated the requested.” was to which Negro a students. is this criticism Nor Board, of the faith majority of the School pointed And, as out also which have considered that it had (cid:127)opinion: wishing adequate impose reasons for was [transferee] student “Each Negro higher these standards on the first given personality interview also were students who to be admitted into prob- officials determine however, This, the white schools. in the new able success failure contemplation of not within the dis- school.” original order, trict court’s which ex- course, it, this means the face of On pressly provided that was not Negro a transfer student if a seeks that on consideration of It based race. High Washington School Booker from T. majority opinion seems to me that the (Negro) twelfth or eleventh into the justifies approval the continued of the High School, grade a white at Northside present plan assumption it is that Negro school, has to demon student race,” “not on based consideration of be- record at Booker T. from strate his opinion cause the states: Washington grade his was “at least “ * * it can also be said average equal the class” in option there is an under the Atlanta every passing Northside, student whereas plan just as there is under the New entering grade grade from the lower plans, Orleans and Houston assum- High Northside School would auto in matically to transfers grade. be admitted in assignments as well as of all new sug course, be ridiculous to it would Of gest course, [which, it is not] passing that before students desegregated grades, and is not grade Northside to eleventh twelfth based on consideration of race grade could be Northside admitted to the plainly (Emphasis [which it is].” grade prior record must twelfth added.) average equaled the class “have assumption on Since grade. profes eleventh It takes opinion demonstrably rests is not cor- testimony absurdity to indicate the sional rect, logically sup- cannot be requirement. pre Yet this is of such ported. cisely requirement imposed which is Appeals Negro every The Court the Fourth transfer student. More Circuit, long in Green v. School Board of over, as an eleventh stu so Roanoke, Cir., 1962, 304 F.2d passing standard re- attains dent appear Negro literature term “white I use practical are still That there sense. Considera Education. schools” schools, however, paid by is conceded trial and white by attention is ble majority appellees. footnotes 3 and See fact (cid:127)and “Negro” longer and “White” no infra. words *12 314 Mannings 118, opinion 123, expressly met this v. and answer- Court’s 1960, is, point; Instruction, Cir., re- ed quirement the Board of 5 that Public whether higher per- 370, of 277 standard F.2d of a 374-375. Negro students, on
formance based of opinion The case also an- the Green students, by uniformly tests taken by appellees swers the contention made for requirement meets even the initial accepted by majority the that an single grade: desegregating a discriminatory attack on the manner of handling the in- must be each Negro requirement “The that a seek- 118, dividual 304 F.2d student. See ing must be well above discriminatory application The median of white class he seeks challenged can be for the class as discriminatory. plainly to enter is unconstitutionality segregated can of explanation The board’s that schools. special requirement imposed on Negroes against any ‘who to assure Counsel for the make School Board point, would The be failures’ is answer. per- which seems somewhat record itude is [*] [*] discloses bestowed that no similar solic- white pupils. lar transfers” suasive subjected majority, 3 to the same transferring that in all requirement student “regu- equal that he meet the standard to the “The federal courts have uniform- average of the school to which transfer ly unequal application held that such sought, subject was personality and that he be ato of transfer criteria2 is a violation course, This, interview. of Negro rights pupils’ under problem all, does not meet the at because the Fourteenth Amendment.” every white student would remain in City having Green v. School of Roa- white school without himself sub- Board citing jected testing noke, F.2d Jones these or interview City Alexandria, every 4 criteria School Cir., 1960, reason of the fact that 72, 77; F.2d student “desegregated” Dodson v. schools below the goes Charlottesville, grades Board School to school un- Cir., 443; system,4 Va., 4 dual F.2d and der a where white children ” Throughout lines,’ majority discussion trial attendance area and the throughout opinion says, court and majority, “even if it be said emphasis placed Atlanta, fact there that is a dual given are white that the same tests evidence does not so disclose” children, Negro they (emphasis added), and that are both statements subject system. grading Superintendent same to the are incorrect. The significant tests, point Schools, only witness, is not who was the testi- Thus, page is made them. but the use as follows on fied the Record: question application is a And “Q. whom are these adminis- Negro criteria to the student’s trative lines drawn? ápplied By superintendent are to the the area “A. in co- operation officials, white student. with the school local officials. Negro only 3. The record shows And these “Q. lines serve to delineate applications particular elementary for transfer white schools area for were that were considerd those submitted schools? May May year. Yes, degree between 1 and 15 of each “A. that it is neces- many sary In addition to these there were to balance one school’s attendance. “informally” during Now, transfers made “Q. in the areas where the hous- year by among racially, is, white students is mixed the areas Negro Negroes white where and whites live in the Negro among area, overlap, schools. criteria above these same lines would so speak, they? discussed were not in- these wouldn’t Well, formerly they formal transfers. “A. were drawn Negro separately for white and stated, “Q. 4. While the trial “neither And how are They drawn now? show does the evidence that defendants “A. are drawn the basis of maintaining Pupil ‘dual of school Placement Law under go go direction, ap- children to Negro which the trial court had only proved, providing applications one -to schools.5 There was *13 grades application school, of a instance of a formal transfers such girl seeking Negro from one white transfer transfers a to be school, de white about white which was alike tests uniform- students ly segregated, school, applied. to another white We concluded that until a any abolishing which thus far admitted start was had not made in a dual Negro system Board, This, schools,whereby students. the the chil- all white initially district an dren this Court held to be went to white schools Negro application pur clearly initially made outside the students went to Ne- gro plan, view of the transfer since it stated of selective transfer application formerly Negro formerly on the face white girl sought satisfy requirements from school schools would desegregated, by speed which was about to be deliberate under Brown de- desegregation. 862, page 869, reason In cision. 306 F.2d at fact of application year ago: Thus it is that no faith Court said than a less regular period for transfer within- the compliance “There cannot be full by any made white student and Supreme require- with the Court’s light none need be made in of the freedom desegregate ments until all dual of transfer the informal method and school districts based race are by reason of the fact that the “feeder” probably late, eliminated. It is too from white lower auto confusion, require without undue guarantees matically passage of each any grade the elimination as to grade. upper student to a white such dual districts in time for the entirely beyond question Moreover, should, 1962 fall term. The present plan truly however, provide of whether the for the elimination desegregates any grade school, of all'dual school which districts on racial belies, practicable I think the record there is the lines at the earliest time. timing appears matter of If heretofore too late for such elim- grade any come to this Court’s attention in the Es ination as to in time for County cambia term, the 1962 fall case the Orleans then the already provide Parish case should mentioned. In such elimination County, principal case of Escambia city as to two first for the Pensacola, Florida, term, of which is 1963 and thereafter fall proposed Board had such elimination at the Court’s as to at least one operating. Superintendent page we are There has been no testified at elementary change in situation. the Record: Now, you say “Q. lines You “Q. are drawn have sort of a feeder Pupil elementary pursuant where certain now (Laws. Placement schools would high law or is feed into Is that state that the certain schools? plan? “A. Yes. And, plan. course, Negro “Q. “A. That is the ele- mentary you say lines drawn schools would “Q. And are feed into one of Negro high pursuant six to that? these schools? “A. “A. The same lines that were in ex- Yes. elementary “Q. in 1960 are in And the white istence existence at present eighteen time. would feed into one of these formerly high I see. white “Q. white schools? Right. “A. “A. With variations that have been way specific high that the “Q. made. There have been no Is these assigned change are now in those lines. to the schools? you way, except separate “A. And The same “Q. still have lines upon request.” subject which relate to the to transfer schools and separate lines which would relate to the elementary schools; right? is that yes.” Roughly, “A. Supreme each successive additional these school cases Court’s year.” Augustus pronouncement subject latest v. following Instruction, Cir., 1962, supra, and, Public Watson case, 862, decision, Goss, F.2d Watson et al. City Knoxville,. Board of Education of In Bush v. Orleans Parish School Tenn., al., 1405,6 et 373 U.S. 83 S.Ct. Board, upon appearance here, 308 its last 10 L.Ed.2d I cannot concur in a de F.Supp. court, F.2d the district cision of this Court that a back takes already required had the Board *14 ward current, rather than a much less- modify Education of Orleans Parish to forward, step. plan permitting under its transfers Assignment Pupil Law, I require would the State the moderate rate of prayed applied by appellants increase time had to two to the- by requiring desegregating complete extent school, de- to- classes segregation eighth of school include first and ninth in. beginning September fifth, 1962. The and order sixth seventh required system grades in roughly parallel., the abolition of the dual 1964. This is grade. opin- required of schools as to that In what we an in Bush. carefully ion that considered the con- Rehearing On Petition for problems stitutional and administrative involved, Court added re- this further PER CURIAM. quirements Septem- to the effect that ber, 1964, It is petition ordered dual shall be abol- for re- and', hearing grades, ished for the first five filed in and that the above entitled year thereafter, succeeding be, each numbered each cause as and the same is here- higher grade desegregated, denied. the dual contemporane- shall be abolished The record before the court in this- ously therewith. any practices case did not relate to hav- assign- to do with transfers any me, ,it It is clear to as must be to ments for the 1963-64 school term. We- who read and understand these deci- two referred to certain deficiencies found Court, accept sions this that if we record, the Atlanta on that and af- represented by majority decision premise firmed on the that such deficien- case, in this the Court will have adjusted by having- cies would be those stepped position backward from the charge their fail- previously long taken after and ma- ure, by the District Court. deliberation, ture and that this Court deliberately required prompt- will have The corrective action neces compliance Supreme er with the Court’s light sary in of the deficiencies will en decision New Orleans and Pensacola application tail the in an even being required Atlanta, than is a com- regard handed manner without to race- munity in which all the evidence and the assignments pupils to all new to a. opinions of the district court and of the desegregated school for admission majority clearly indicate accommodation transfers, school; grade in that and to all requirements of to the the Constitution formal, whether informal or otherwise. expected can be to be made with a min- Personality interviews determine- difficulty. imum of probable success or failure in the schools- give Enjoined assignment we are to fresh con- which transfer is- timing sought may to the element of sideration not be utilized where such construing language decision, of a transfer In the first Brown after the con- Knoxville, Tennessee, interpret ap- schools of for the in which we must text ply County, Tennessee, plans language desegrega- Davidson and of significantly said: Court tion altered. Com- however, eight years “Now, pare Memphis, supra.” after his Watson years was rendered and nine decree over
3X7 Negro pupils only practice relates requiring standard case. No as was the grade on scho- score a a transferee equal ability tests achievement lastic average class in the sought may util- transfer to which requirement ized, may any scholastic nor only where used whatever be seeking as- signment in Atlanta the case as was approved the administration opinion is the District Court. cor- it clear modified to make apply to transfers must action
rective assignments 1963-64 for the *15 prac- any, extent, if term to the giving to the deficiencies rise tices in use.
have been continued Judge,
RIVES, dissents. Circuit KEATON, Plaintiff-Appellee,
Adolphus ATCHISON, AND SANTA TOPEKA COMPANY, a Cor FE RAILROAD Defendant-Appellant. poration,
No. 13865. Appeals
United States Court of
Seventh Circuit.
July 18, 1963.
Rehearing Sept. 4, Denied