Calhoun v. Latimer, 20273.

• Decision Date: 16 August 1963
• Docket Number: No. 20273.,20273.
• Parties: Vivian CALHOUN et al., Infants, by Fred Calhoun, their father and next friend, et al., Appellants, v. A. C. LATIMER et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 302 (1963)

Vivian CALHOUN et al., Infants, by Fred Calhoun, their father and next friend, et al., Appellants, v. A. C. LATIMER et al., Appellees.

No. 20273.

United States Court of Appeals Fifth Circuit.

June 17, 1963.

Rehearing Denied August 16, 1963.

Constance Baker Motley, New York City, E. E. Moore, Jr., Donald L. Hollowell, Atlanta, Ga., Jack Greenberg, New York City, for appellants; Norman Amaker, New York City, A. T. Walden, Atlanta, Ga., of counsel.

A. C. Latimer, J. C. Savage, Newell Edenfield, Atlanta, Ga., for appellees.

Before RIVES, LEWIS^* and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

I.

This appeal from an order denying a motion for further relief brings up for review, for the first time,¹ the plan for the desegregation of the Atlanta school system. The plan was formulated pursuant to court order, and approved by the court on January 20, 1960. It became effective on May 1, 1961 for the school term 1961-62 beginning in September 1961. It was applied to the twelfth and eleventh grades at that time for the purposes of desegregation, to the tenth grade beginning with the 1962-63 school term, and will be applied to the ninth grade beginning with the 1963-64 school term. It is to be applied progressively to the next succeeding grade each school term thereafter until all grades in the school system have been included, and desegregated.

The sequence of events in this case began with the filing of a complaint on January 11, 1958 by appellants seeking the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution; Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, having proscribed racial discrimination in public education. The District Court had first enjoined appellees, members of the Board of Education of the City of Atlanta, and the school superintendent, from enforcing and pursing the policy, practice, custom, and usage of requiring or permitting racial segregation in the operation of the schools, and from engaging in any and all action which limited or affected admission to, attendance in, or the education of the appellant children, or any other Negro children similarly situated, in the schools on the basis of race. A reasonable period of time was allowed within which to comply with the order, and for bringing about a transition to a school system not operated on the basis of race. The school board was required to present a plan on or before December 1, 1959 designed to bring about compliance with the order, and which would provide for a prompt and reasonable start toward desegregation of the public schools of Atlanta, and a systematic and effective method for achieving such desegregation with all deliberate speed.

A plan was submitted, contingent upon the enactment of statutes by the State of Georgia permitting the same to be put into operation. It provided procedures of uniform application for the assignment, transfer, or continuance of pupils among and within the schools of the system. The plan was largely modeled upon the placement law approved as constitutional on its face in Shuttlesworth v. Birmingham Board of Education, N.D.Ala., 1958, 162 F.Supp. 372, affirmed, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145. It was, however, amended in various respects by court order before final approval to meet some of the objections of appellants. There was also objection to the plan being contingent upon changes in the state laws which then required segregated schools, under penalty, among others, of loss of state financial support. The court limited the contingency to one year and included two grades in the plan for the first year of its operation. It was to be invoked for the 1961-62 school year in any event. See Calhoun v. Members of Board of Education of City of Atlanta, N.D.Ga., 1959, 188 F.Supp. 401; D.C., 188 F.Supp. 412.

II.

The Georgia laws were changed, obviating harm to public education, and making it possible for the plan of the school board to proceed on schedule. Schools were no longer classified as white or Negro, but the plan did contemplate that each child would continue in the school to which assigned for the then present school term unless and until transferred, on request, to another school. Applications for transfer were to be filed between May 1 and May 15 in each school year. This was the method of transition agreed upon rather than some other plan requiring reassignment by school officials. Any child was free to seek transfer to the grades within the plan.

Some three hundred Negro children and one white child obtained application forms for transfer for the 1961-62 term. Only one hundred and thirty of these were actually filed by Negro children. Ten of these were granted and reassignment was made to the eleventh and twelfth grades of formerly white schools. The transfer sought by the white child out of one of these schools because Negroes were to be admitted was denied. See Stone v. Members of Board of Education of City of Atlanta, 5 Cir., 1962, 309 F.2d 638. At this time there were one hundred thirteen elementary schools, grades one through seven, and twenty two high schools, grades eight through twelve, in Atlanta. There were no junior high schools. Forty one of the elementary schools were all Negro in attendance while seventy two were all white. This is still true since the plan has not reached the elementary grades. There were five all Negro and seventeen all white high schools. This latter number was reduced to thirteen by the transfer of the ten Negro students. Forty four additional Negro students, out of some two hundred sixty six requesting transfer, were transferred to white schools for the 1962-63 term resulting in the desegregation of seven additional formerly all white schools. The result to date is that there are eleven integrated high schools in Atlanta, five all Negro high schools and six all white high schools.

Special intelligence tests were given those students seeking transfer under the plan in 1961, but this requirement was abandoned prior to 1962; thus, our discussion will center on the practices and procedures required under the plan for 1962. Only a few of the seventeen factors or criteria set out in the plan were used. A scholastic ability and achievement test routinely given to every child in the grades in question in the school system was used in considering the applications. The standard used was that the transferee had to score a grade at least equal to the average of the class in the school to which transfer was requested. Such a requirement is, of course, discriminatory per se when applied only to Negro students. Proximity of the residence of the student to the school in question, subject to variation for educational reasons, and also the reasons given on the application for the requested transfer were other factors used. Each student was also given a personality interview by school officials to determine probable success or failure in the new school.²

When the plan became effective, all students in the grades to be segregated were already assigned to high schools. Thus, the plan to date encompasses only those students wishing to transfer, and new students entering a school for the first time in the desegregated grades. However, it has not been applied to new students, nor to those students being transferred at times other than during the period May 1 to May 15 under the plan. Transfers, other than during this period, not substantial in number, are known to the school board as informal transfers, and are to be distinguished from transfers under the plan, called formal transfers.

There is no evidence that the criteria applied in informal transfers were racially discriminatory as among informal transferees, but they were apparently different from the criteria applied in formal transfers. The school superintendent testified that the criteria applied in formal transfers included the reason given by the student for requesting transfer, tests that were a part of his permanent record, grades, teacher opinion and educational judgment as to whether the request, for these reasons, would be educationally justified. Also considered was proximity of residence to school and the capacity of the school. The difference in the requirements for formal and informal transfers, in the main, was that no personality interview was required for informal transfers, nor does it appear that the standard of scholastic ability basis was the same.

The form used in requesting transfers as well as the plan itself is designed to apply in the admission and assignment procedure, as well as in the transfer procedure. The District Court said in this regard:

"Essentially the Plan contemplates that all pupils in the schools shall, until and unless transferred to some other school, remain where they are, all new and beginning students being assigned by the Superintendent or his authority to a school selected by observance of certain standards as set forth in the proposed Plan." 188 F.Supp. 401, 406, supra.

Not one of the Negro applicants for transfer has complained individually to the District Court at any time. The case is still proceeding as a class action. Both appellants and the school board were satisfied to rely largely on the testimony of the school superintendent. His testimony in substance was that the board was abiding the letter and the spirit of the plan approved by the court. Pupils were assigned to schools they attended the previous year in order to establish a base from which they were free under the plan to request a transfer. He contended that the Atlanta school system was desegregated, and pointed out that all mention of race had been removed from the school directory, official reports, building programs, and all other classifications. Schools are no longer designated as white or Negro. Negro students assigned to previously all white schools participated in both regular and...