Mapp v. BOARD OF EDUCATION OF CITY OF CHATTANOOGA, TENN

• Decision Date: 08 July 1963
• Docket Number: 15039.,No. 15038,15038
• Citation: 319 F.2d 571
• Parties: James Jonathan MAPP et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF CHATTANOOGA, TENNESSEE, et al., Defendants-Appellees. James Jonathan MAPP et al., Plaintiffs-Cross-Appellees, v. The BOARD OF EDUCATION OF the CITY OF CHATTANOOGA, TENNESSEE, et al., Defendants-Cross-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

319 F.2d 571 (1963)

James Jonathan MAPP et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF CHATTANOOGA, TENNESSEE, et al., Defendants-Appellees.

James Jonathan MAPP et al., Plaintiffs-Cross-Appellees, v. The BOARD OF EDUCATION OF the CITY OF CHATTANOOGA, TENNESSEE, et al., Defendants-Cross-Appellants.

Nos. 15038, 15039.

United States Court of Appeals Sixth Circuit.

July 8, 1963.

Constance Baker Motley, New York City, and Avon N. Williams, Jr., Nashville, Tenn. (Jack Greenberg, Leroy D. Clark, New York City, Z. Alexander Looby, Nashville, Tenn., Bruce Boynton, Chattanooga, Tenn., on the brief), for James Jonathan Mapp and others.

Raymond B. Witt, Jr., Chattanooga, Tenn. (Witt, Gaither, Abernathy, Caldwell & Wilson, Chattanooga, Tenn., on the brief), for Board of Education of City of Chattanooga and others.

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

O'SULLIVAN, Circuit Judge.

This school desegregation case involves the public schools of Chattanooga, Tennessee. The plaintiffs, a group of Negro public school children of Chattanooga, appearing by their parents, as next friends, filed their complaint on April 6, 1960, asking an injunction to compel the desegregation of that city's public schools. The Chattanooga schools were at that time admittedly segregated. In its answer, defendant school board admitted its duty to desegregate "with all deliberate speed," Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, but answered that it had been, and was then, conducting a program of "elucidation" to prepare the community of Chattanooga for the initiation and carrying out of the desegregation commanded by the Brown decision. It insisted that further time was needed for such indoctrination and conditioning to the end that desegregation could have an orderly beginning and that, when started, could be continued without the collisions, inefficiency and possible violence that might accompany too precipitate a start or too rapid accomplishment of total desegregation.

After motions for summary judgment were made by both parties, the District Judge sustained plaintiff's motion and directed defendant Board of Education to submit a plan of desegregation. The Board's first plan was disapproved. Thereupon, defendants appealed to this Court, attacking the orders granting plaintiffs' motion for summary judgment and rejecting the Board's first plan. We sustained the District Court's orders. Mapp v. Board of Education of City of Chattanooga, 6 Cir., 295 F.2d 617 (1961). Further hearings were conducted with the Board submitting successive plans, until the judgment or decree here involved was entered in April of 1962. The plan approved by that decree will accomplish complete desegregation of Chattanooga's public schools by September 1, 1969; the elementary grades on September 1, 1964; the junior high schools by September 1, 1967; the senior high schools by September 1, 1968; and the post-high-school technical institute by September 1, 1969. All parties appear to find this broad scheme of desegregation acceptable. Plaintiffs and defendants, however, both object to, and have appealed from, specific portions of the District Court's orders and decrees, which we discuss below.

1. Notice of Intent and Transfer Privilege. (Appeal No. 15039)

a) Notice of Intent. The initial step of the submitted plan was to desegregate on September 1, 1962, the first three primary grades in some sixteen designated schools. The plan provided for "a new single school zone" for each of such schools. Because of the year-by-year plan, there would continue, during its progress, some schools totally or partially segregated under what had been the "dual zone" system. Item V of the defendants' plan provided in part as follows:

"V. Admission to Schools by Single Zone.

"1. Beginning with the school year 1962-63, students in grades one, two and three residing within a new single school zone which places the pupil in a different school than the one he would attend under existing zones, may enroll in his new single zone school provided:

"(a) said school has been desegregated by the Board of Education; and

"(b) provided parents, guardians, or those acting in the position of parents of students desiring to enroll in said schools, shall file a written notice of intent with the Board of Education, at its official headquarters. * * *"

As did the District Judge, we find the quoted portion of item V unclear in its expressed requirements and purposes. Construing it, however, as permitting the continuance of some segregation in the first three grades initially to be desegregated, the District Judge said, "The Court does expressly disapprove of so much of the defendants' proposed admission plan as would require any student or parent to apply for or consent to implementation of desegregation in accordance with the Plan." We are in accord. Inasmuch as the requirement of "notice of intent" was apparently intended to apply only to the initial step to be taken on September 1, 1962, and we assume that, in obedience to the District Court's decree, such step was accomplished without requiring a "notice of intent," the matter is now moot. No further discussion is warranted.

b) Transfer Privilege. Item VI of the Board's plan provided that during the progress of integration, students in desegregated schools could be given the privilege of transferring out of a desegregated school if the majority of the students in such school, or in a class thereof, were of a different race than the student seeking such transfer. The pertinent part of such Item VI is as follows:

"VI. Privilege of Transfer.

"1. Upon receipt of applications, as provided in existing school board policy, transfer of students in desegregated schools may be granted when good cause therefor is shown.

"2. The following will be regarded as some of the valid reasons of good cause for transfer.

"(a) When a student would otherwise be required to attend a school where the majority of students in that school or in his class were of a different race."

The District Judge disapproved this transfer provision notwithstanding that we had, in Kelley v. Board of Education of Nashville, 270 F.2d 209, 215, 228 (C.A.6, 1959) cert. denied, 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240, affirmed a District Court's approval of a like provision for the schools of Nashville, Tennessee. He observed that in the Kelley case we had said "there is no evidence before us that the transfer plan is an evasive scheme for segregation," and that our affirmance was "on the record before us." He pointed to evidence in the case before him that the Nashville plan had worked toward a continuance of segregation. His opinion was announced prior to our opinions in Goss v. Board of Education of City of Knoxville, Tenn., 301 F.2d 164 (C.A.6, 1962) and Maxwell v. County Board of Education of Davidson County, Tenn., 301 F.2d 828. In these cases we affirmed District Court approval of transfer plans identical in effect with the one before us here. We felt that our Kelley decision (Cert. denied) committed approval of such provisions to the discretion of the District Judge, with power to control and prevent misuse. In Goss and Maxwell we followed Kelley with the observation that "we do not think the transfer provision is in and of itself illegal or unconstitutional. It is the use and application of it that may become a violation of constitutional rights. * * * We adhere to our former ruling (Kelley) with the admonition to the board that it cannot use this (the transfer privilege plan) as a means to perpetuate segregation." (301 F.2d 168).

Our Goss and Maxwell decisions have now been reversed by the Supreme Court. Goss v. Board of Education of City of Knoxville, Tennessee, et al., and Maxwell v. County Board of Education of Davidson County, Tenn., et al., 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963). The Court declares that the transfer privilege involved in the case at bar is unconstitutional and no discretion, therefore, remains in a District Judge to approve its inclusion in a plan, regardless of his control of its use.

We affirm the District Court's disapproval of the Board's Notice of Intent provision (Item V) and its Transfer Privilege (Item VI).

2. Integration of assignment of Teachers, Principals and other School Personnel. (Appeal No. 15038)

Prior to the commencement of this litigation and, we assume, up to taking the first step of desegregation on September 1, 1962, the City of Chattanooga maintained a biracial (segregated) school system. Only Negro teachers and principals were assigned to the Negro schools, and only white teachers and principals were assigned to white schools.¹ The administrative staff of the school system was filled entirely by white personnel. No teachers, principals or other school personnel, Negro or white, were parties to the litigation.

The complaint averred that:

"The plaintiffs, and members of their class, are injured by the policy of assigning teachers, principals and other school personnel on the basis of the race and color of the children attending a particular school and the race and color of the person to be assigned. Assignment of school personnel on the basis of race and color is also predicated on the theory that negro teachers, negro principals and other negro school personnel are inferior to white teachers, white principals and other white school personnel and, therefore, may not teach white children."

and the prayer of the complaint asked that the Court:

"Enter a decree enjoining defendants, their agents, employees and successors from assigning teachers, principals and other school personnel to the schools of the City of Chattanooga on the basis of the race and color of the person to be assigned and on the basis of the race and color of the children attending the school to which the personnel is to be assigned."

or, in the alternative, require that any reorganization...