Goss v. BOARD OF EDUCATION OF CITY OF KNOXVILLE, TENN.

• Decision Date: 06 July 1962
• Docket Number: No. 14759.,14759.
• Citation: 305 F.2d 523
• Parties: Josephine GOSS and Thomas A. Goss, Infants, by Ralph Goss, Their Father and Next Friend, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF THE CITY OF KNOXVILLE, TENNESSEE, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

305 F.2d 523 (1962)

Josephine GOSS and Thomas A. Goss, Infants, by Ralph Goss, Their Father and Next Friend, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF THE CITY OF KNOXVILLE, TENNESSEE, Defendants-Appellees.

No. 14759.

United States Court of Appeals Sixth Circuit.

July 6, 1962.

Avon N. Williams, Jr., Nashville, Tenn., and Jack Greenberg, New York City (Carl A. Cowan, Knoxville, Tenn., Z. Alexander Looby and Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg and James M. Nabrit, III, New York City on the brief, Derrick A. Bell and Michael Meltsner, New York City, of counsel), for appellants.

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

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

CECIL, Circuit Judge.

This is the second appeal in this case. The parties are the same as they were in the first appeal decided by us April 3, 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, 301 F.2d 164, C.A.6. We will refer to the parties as plaintiffs and defendants, as they were in the District Court.

The case is now before us on a plan submitted by the Board of Education and approved by the District Judge, concerning the use of Fulton High School by Negro students. Judge Taylor had withheld his approval from the plan which was before us in the first appeal, so far as it applied to Fulton High School.

This school has been a white school and teaches vocational and technical courses, many of which were not regularly offered to Negro students at Austin High School, the Negro counterpart of Fulton, under the bi-racial system. Under the grade-a-year plan of integration, submitted by the Board in the first plan, Negro students would have been denied the advantages of this school for eight years.

The plan now before us provides: 1. For a continuation of the general policy of providing vocational facilities at Austin and at Fulton high schools. 2. If a course cannot be established at either school because of lack of sufficient number of qualified students, and it is already offered at the other school, students may transfer to the school where the course is given. 3. If a course is not given at either school and there is a sufficient number of qualified students in combination from the two schools, the course may be established at either school. 4. The criteria for determining whether or not new courses are to be established. 5. That "the Board of Education will follow the rules and regulations as set forth from time to time by the State Board for Vocational Education." 6. That the principals of the schools, the Director of Vocational Education and the Superintendent of Schools will carry out the plan "consistent with sound school administration and without regard to race." 7. That the plan was to be effective with the beginning of the school year in September 1961.

The plaintiffs have raised numerous objections to the plan. This plan was approved and the appeal perfected while the first appeal was pending. Consequently, neither the court nor the parties could be guided by our subsequent opinion. In that opinion we decided some of the questions that are now presented by the plaintiffs.

We held there that "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." (p. 168.)

We do not here discuss the issues decided in the first case, but address ourselves to the plan now before us concerning Austin and Fulton High Schools. Does this plan insure to all students, without regard to race, an equal opportunity to study all courses in vocational and technical training available in either high school? In answering this question we assume that these schools will be brought into the plan of ultimate complete desegregation, in accordance with an accelerated step-by-step plan, as required by our former opinion. In the meantime, these schools must be largely accepted as separate schools, to the extent that segregation is accepted by grades in other schools not yet reached by the plan.

One of the principal objections which the plaintiffs make to the plan is No. 4, which reads as follows: "4. Factors to be used in deciding whether or not a new course is established. (a) Number of qualified students as determined by Bulletin No. 1 — `Administration of Vocational Education,' Federal Security Agency, Office of Education. These are: 1. `The desire of the applicant for the vocational training offered: 2. His probable ability to benefit by the instruction given; and 3. His chances of securing employment in the occupation after he has secured the training, or his need for training in the occupation in which he is already employed.' (Enrollment in vocational classes is limited to...