Northcross v. Board of Education of City of Memphis, 14642.

• Decision Date: 25 June 1962
• Docket Number: No. 14642.,14642.
• Citation: 302 F.2d 818
• Parties: Deborah A. NORTHCROSS et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF MEMPHIS, TENNESSEE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

302 F.2d 818 (1962)

Deborah A. NORTHCROSS et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF MEMPHIS, TENNESSEE, et al., Defendants-Appellees.

No. 14642.

United States Court of Appeals Sixth Circuit.

March 23, 1962.

Rehearing Denied April 26, 1962.

As Amended May 15, 1962.

Certiorari Denied June 25, 1962.

Constance Baker Motley, New York City (Thurgood Marshall, New York City, A. W. Willis, Memphis, Tenn., on the brief; R. B. Sugarmon, Jr., H. T. Lockard, B. L. Hooks, B. F. Jones and Ira H. Murphy, Memphis, Tenn., of counsel), for appellants.

Jack Petree, Evans, Petree & Cobb, Memphis, Tenn. (Larry B. Creson, Laughlin, Watson & Creson, Memphis, Tenn., on the brief), for appellees.

Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.

Certiorari Denied June 25, 1962. See 82 S.Ct. 1586.

CECIL, Circuit Judge.

This appeal involves the public school system of the City of Memphis, Tennessee.

The appellants were plaintiffs in the District Court for the Western District of Tennessee. They are eighteen minors and their parents, all of the Negro race, who bring the action on behalf of themselves, and all other Negro children and their parents in Memphis, similarly situated. The defendants-appellees are the Board of Education of the City of Memphis, the members thereof individually, and the superintendent of schools. The parties will be referred to hereinafter as plaintiffs and defendants.

Jurisdiction of the District Court is invoked by virtue of section 1343(3), Title 28 U.S.C. By this act, jurisdiction is conferred "To redress the deprivation, under color of any State law, * * * custom or usage, of any right privilege or immunity secured by the Constitution of the United States * * * for equal rights of citizens or of all persons within the jurisdiction of the United States."

It is alleged in the complaint, inter alia, that the defendants maintain and operate a compulsory biracial school system in the City of Memphis, in which certain schools are designated for Negro students only and staffed by Negro personnel, and certain other schools are designated for white students only and staffed by white personnel. It is further alleged that there is separate geographical zoning for the Negro and white schools and that these zones in some instances overlap so that both Negro and white students are in the same zone. The plaintiffs also allege that they have not exhausted their remedies under the Tennessee Pupil Assignment Law for the reason that it does not provide an adequate remedy for the relief they seek.

By their complaint, briefly stated, the plaintiffs seek an order enjoining the defendants from operating a biracial school system or in the alternative for an order to the board to submit a plan for the reorganization of the schools on a unitary non-racial basis.

The defendants in their answer deny that they maintain a compulsory biracial school system in the city of Memphis. They admit that certain of their schools are attended and staffed solely by members of the white race and that certain other schools are attended and staffed solely by members of the Negro race. They concede that there is no racial integration of their schools for the reason that no members of the Negro race have made applications for transfers to white schools. The defendants allege in their answer that the Tennessee Pupil Assignment Law affords to plaintiffs and defendants a simple and easy method of complying with the requirements of the Supreme Court of the United States in the school segregation cases.

A trial was had in the District Court upon the issues presented by the pleadings, after which the District Judge made findings of fact and conclusions of law and entered judgment on May 2, 1961.

The trial judge found as facts, that the defendants do not operate a compulsory biracial school system or maintain a dual schedule or pattern of school zone lines based upon race or color; that the school zone maps introduced in evidence have no significance as evidence of a biracial school system; that the Tennessee Pupil Assignment Law furnishes the plaintiffs an effective and adequate remedy for integration and as effective a plan for compliance with the decisions of the Supreme Court of the United States as the Court could devise; that the defendants' intention to effect integration of the school system under the Pupil Assignment Act has been open and generally known to the public and that the plaintiffs and their attorneys were so advised at a public meeting of the Board of Education on February 6, 1960; that the Board has evidenced all good faith to the public and to the court of its intention to comply with the decision of the Supreme Court.

By judgment entry the court sustained the plaintiffs' prayer for alternative relief by approving the Tennessee Pupil Assignment Law as a plan for desegregation and denied further relief to the plaintiffs for the reason that the defendants did not operate a biracial school system and the plaintiffs had not exhausted their administrative remedies under the Assignment Law.

On December 14, 1961, after this appeal was docketed, the defendants filed in this Court a motion to dismiss the appeal. The basis of the motion is that the Board desegregated the schools of Memphis on October 3, 1961, and that the issues involved in the appeal have now become moot. This motion is supported by an affidavit of the president of the Board of Education.

In this affidavit it is alleged that on August 28, 1961, forty-two Negro children made application to desegregate the public school system of Memphis; that four of them abandoned their applications and thirty-eight were considered by the Board; and of these applicants thirteen were admitted to three schools previously attended by white children.

This is denominated in the affidavit as desegregation of the Memphis schools and it is alleged that it was accomplished through the cooperation of members of the Negro race, the news media and public officials of Memphis. It is further alleged that it was accomplished without fanfare or strife, and that it has been generally accepted by all of the citizens of the community.

By filing this motion and affidavit, after the appeal was docketed, the defendants enlarged the record without an opportunity to the plaintiffs to be heard on the subject involved. The affidavit does not state what criteria was applied in granting these transfers, but we were informed in oral argument that they were based on scholarship by tests not given to white children in the same school.

At the time this action was brought, according to the evidence, there were in the city of Memphis approximately fifty-five white elementary school units, fifteen white junior high schools and nine white senior high schools. At the same time, there were approximately thirty-one Negro elementary school buildings, seven Negro junior high, and six Negro senior high units. There were separate technical high schools and separate schools for Negro and white crippled children. There are approximately 100,000 pupils in the Memphis school system, forty-four percent of whom are Negroes.

The Pupil Assignment Law was enacted by the Tennessee legislature in 1957. Sections 49-1701 — 49-1764 Tenn. Code. At the time this action was filed in March of 1960, no Negro pupil had ever been transferred to a white school, nor had a white pupil ever been transferred to a Negro school, under the operation of the law. The superintendent of schools testified that the Assignment Law is not applied to children entering school for the first time. In the case of such children, the principal to whom application is made will take into consideration the applicant's race and residence in determining an assignment to a school. The evidence also shows that there are dual area zone maps, one for white schools and one for Negro schools. These zones may overlap and there may be Negro and white children in the same zone, but each goes to the school for his respective race.

One of the plaintiffs, Mrs. McFerrin, applied in 1958 for admission of her son to Vollentine, a white school. Mrs. McFerrin and her son lived in an area assigned to Hyde Park, a Negro school. The Vollentine school is located four blocks from their home and on the same side of the street. Hyde Park is ten blocks from their home and reached by an indirect route. She asked for the transfer for convenience, but the superintendent denied her application for the reason that transfers were not granted for convenience.

In 1960 two Negro girls who were enrolled in Melrose High School, (Negro), sought a transfer to South Side High School, (white). They had moved within four blocks of the South Side School. They were told that they were in the Booker T. Washington (Negro) district and were offered transfers to that school. It required a thirty to forty-five minute bus ride to get to Melrose, and Washington was almost equally far away, and they refused the transfer.

In May 1954, the Supreme Court of the United States decided that "Separate educational facilities are inherently unequal," and that segregation of the races in separate schools deprived the minority group of the equal protection of the laws guaranteed by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. At this time, the Constitution of Tennessee provided that white and Negro children were not to be received as scholars together in the same school. Art. 11, Sec. 12, Tenn. Const. The statutes of Tennessee also prohibited white and Negro children attending the same schools. Sections 49-1005, 49-1107, and 49-3701 Tenn. Code.

It is conceded that these provisions of the Constitution and statutes were no longer enforcible after the Brown decision. The defendants now claim that compulsory segregation of the races for school purposes has been abandoned in the city of Memphis, and that the Board of Education has adopted...