Goss v. Board of Education of City of Knoxville, Tenn.

• Decision Date: 03 April 1962
• Docket Number: No. 14425.,14425.
• Citation: 301 F.2d 164
• Parties: Josephine GOSS, and Thomas A. Goss, Infants, by Ralph Goss, Their Father and Next Friend, et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF KNOXVILLE, TENNESSEE, a Body Corporate or Continuous Legal Entity, c/o Dr. John H. Burkhart, President, et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

301 F.2d 164 (1962)

Josephine GOSS, and Thomas A. Goss, Infants, by Ralph Goss, Their Father and Next Friend, et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF KNOXVILLE, TENNESSEE, a Body Corporate or Continuous Legal Entity, c/o Dr. John H. Burkhart, President, et al., Appellees.

No. 14425.

United States Court of Appeals Sixth Circuit.

April 3, 1962.

Avon N. Williams, Jr., Nashville, Tenn., and Jack Greenberg, New York City, for appellants, Carl A. Cowan, Knoxville, Tenn., Z. Alexander Looby, Nashville, Tenn., Jack Greenberg and Thurgood Marshall, New York City, on the brief.

S. Frank Fowler, Knoxville, Tenn., for appellees, Claude K. Robertson, Fowler, Rowntree & Fowler, Knoxville, Tenn., on the brief.

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

CECIL, Circuit Judge.

This cause is before the Court on appeal from an order of the United States District Court for the Eastern District of Tennessee, Northern Division, concerning the desegregation of the school system of the city of Knoxville, Tennessee.

The appellants were plaintiffs in the District Court and are all Negro citizens of the United States and state of Tennessee, and residents of the city of Knoxville. They are children who were attending the public schools of Knoxville, at the time this action was begun, and their parents or guardians. The action was brought by the named plaintiffs for themselves, individually, and on behalf of all persons resident of Knoxville, similarly situated.

The appellees were defendants in the District Court and are members of the school board of the city of Knoxville, together with the superintendent of schools and other administrative officers of the Knoxville school system. They are sued in their official capacities and as individuals.

The parties will be referred to hereinafter, respectively, as plaintiffs and defendants.

The complaint was filed on December 11, 1959, and invoked jurisdiction by virtue of sections 1331, 1343, 2201 and 2202, Title 28 U.S.C. and sections 1981 and 1983, Title 42 U.S.C.A. By their complaint, the plaintiffs seek orders restraining the defendants from refusing to admit the named plaintiffs to certain schools operated by them as so-called "white" schools, on account of plaintiffs' race or color; for an order declaring the custom, policy, practice or usage of excluding plaintiffs and other persons similarly situated from any schools of the city of Knoxville solely because of race, pursuant to certain constitutional and statutory provisions of the state of Tennessee, to be unconstitutional and void; for a permanent injunction restraining the defendants from operating their schools on a biracial basis, and in addition thereto for an order requiring the defendants to present to the Court a plan "designed to bring about good faith compliance with the decision of the Supreme Court of the United States in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, at the earliest practicable date throughout the Public School System of the City of Knoxville."

The defendants in their answer admit that the schools of Knoxville, at the time this action was begun, were operated on the basis of separate schools for white children and separate schools for Negro children. They say this was in accordance with constitutional and statutory provisions of the state of Tennessee (Art. 11, Sec. 12, Tenn.Const., Secs. 49-1005, 49-1107, and 49-3701, Tenn.Code.); that they did not feel that they could change this system without the compulsion of law; that the schools for Negroes were excellent and that there was no discrimination against them in the type of education they received; that while there were white teachers for white children and Negro teachers for Negro children, they were paid on the same basis; that since the Brown decision, they have studied plans of integration, but that up until this time delay has been well advised. They say they "owe no apologies to anyone, and make none."

After the complaint was filed, the trial judge gave the defendants until April 8, 1960, to submit a plan of integration. A plan was submitted in accordance with this order and the principal question now before this Court is whether that plan is adequate to comply with the decisions of the Supreme Court.

The plan called "Plan No. 9" provides for school zoning based upon location and capacity of school buildings and admission to schools by reason 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, beginning 1960-61, and a system of transfers in which the following will be recognized 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 student 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."

The plaintiffs objected to the plan for the reasons that, considering the five years that had already elapsed since the Brown decision, twelve years was too long a period to accomplish complete desegregation; that the board had not shown that the delay was necessitated by any administrative problems enumerated by the Court in the Brown decision; that it deprived Negro students already enrolled in school of an unsegregated education; that it deprived Negro students of an opportunity for education in certain vocational schools and summer courses, and that the transfer plan would operate to perpetuate segregation of the races in the public school system.

The case was tried to the court and a judgment entered on August 26, 1960. By this judgment, the court denied injunctive relief to the plaintiffs and approved the plan as submitted, except "that the defendants in this cause are hereby directed to restudy the problem presented with reference to the technical and vocational courses offered in the Fulton High School, to which colored students have no access, and present a plan within a reasonable time which will give the colored students who desire these technical and vocational courses an opportunity to take them." It was further ordered that the board should put the plan as approved into effect.

On May 17, 1954, the Supreme Court decided, in Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L. Ed. 873 (known as the first Brown case) "that in the field of public education the doctrine of `separate but equal' has no place. Separate educational 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 maintenance of "Negro" schools and "white" schools was a violation of the United States Constitution.

The Court, according to the second Brown decision, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, realized that the transition required by its first opinion, from a custom and practice of so long standing, could not be easily accomplished and that administrative problems would be encountered which would prevent immediate abandonment of the biracial systems then in effect.

The court said, at p. 299, at page 756 of 75 S.Ct.: "Full implementation of these constitutional principles may require solution of varied local school problems." And at p. 300, at page 756 of 75 S.Ct.: "In fashioning and effectuating...