Vick v. County Board of Education of Obion County, Tenn.

• Decision Date: 04 June 1962
• Docket Number: No. 1259.,1259.
• Parties: Sylvia Dumas VICK, an infant, by Harvey O. Vick and Mrs. Harvey O. Vick, her father and mother and next friends; Brenda Kaye Carson, an infant, by J. H. Carson and Mrs. Mamie Carson, her father and mother and next friends; Juanita Morris, an infant, by Richard Morris and Mrs. Richard Morris, her father and mother and next friends; and Harvey O. Vick, Mrs. Harvey O. Vick, J. H. Carson, Mrs. Mamie Carson, Richard Morris and Mrs. Richard Morris, Plaintiffs, v. COUNTY BOARD OF EDUCATION OF OBION COUNTY, TENNESSEE, and O. C. Berry, J. C. Roberts, Virgil Roberts, Chester Thompson, W. H. Caudel, Earl Bryant, Sam Cutler, Marvin Harper, Archie Cultra and W. T. Garrigan, Jr., Board Members, who together, as such Members, constitute the County Board of Education of Obion County, Tennessee; and C. D. Parr, County School Superintendent and/or Superintendent of Public Instruction of Obion County, Tennessee, Defendants.
• Court: U.S. District Court — Western District of Tennessee

205 F. Supp. 436

Sylvia Dumas VICK, an infant, by Harvey O. Vick and Mrs. Harvey O. Vick, her father and mother and next friends; Brenda Kaye Carson, an infant, by J. H. Carson and Mrs. Mamie Carson, her father and mother and next friends; Juanita Morris, an infant, by Richard Morris and Mrs. Richard Morris, her father and mother and next friends; and Harvey O. Vick, Mrs. Harvey O. Vick, J. H. Carson, Mrs. Mamie Carson, Richard Morris and Mrs. Richard Morris, Plaintiffs, v. COUNTY BOARD OF EDUCATION OF OBION COUNTY, TENNESSEE, and O. C. Berry, J. C. Roberts, Virgil Roberts, Chester Thompson, W. H. Caudel, Earl Bryant, Sam Cutler, Marvin Harper, Archie Cultra and W. T. Garrigan, Jr., Board Members, who together, as such Members, constitute the County Board of Education of Obion County, Tennessee; and C. D. Parr, County School Superintendent and/or Superintendent of Public Instruction of Obion County, Tennessee, Defendants.

No. 1259.

United States District Court W. D. Tennessee, E. D.

June 4, 1962.

Avon N. Williams, Jr., Looby & Williams, Nashville, Tenn., J. Emmett Ballard, Jackson, Tenn., and Jack Greenberg, New York City, for plaintiffs.

Fenner Heathcock, Heathcock, Elam & Cloys, Union City, Tenn., for defendants.

BROWN, District Judge.

This cause first came on for hearing on December 15, 1961, on the application of plaintiffs for an injunction against the operation of a compulsory racially segregated public school system in Obion County, Tennessee. Plaintiffs also prayed for an injunction against the assignment of teachers and supporting personnel on the basis of race or color. Defendants, in their answer, admitted they are operating a compulsory racially segregated school system which is therefore unconstitutional and offered to bring about desegregation on the basis of a grade a year. After hearing proof and argument of counsel, this Court delivered an opinion from the bench (6 Race Rel L.Rep. 1001 (1961)) in which it denied plaintiff's prayer for an injunction, ordered defendants to present a plan by April 1, 1962 for complete desegregation of the public school system effective for the school year 1962-1963, and took under advisement the prayer for injunctive relief with respect to teachers and supporting personnel.

Pursuant to the direction of the Court, defendants filed a proposed plan to which plaintiffs filed objections, and this cause again came on for hearing on May 11, 1962 for consideration of the proposed plan and the objections thereto. Additional proof was offered by both sides to the litigation and further argument of counsel was likewise had. The provisions of the proposed plan as well as the objections thereto will appear in this memorandum opinion hereafter and therefore they will not be set out at this point.

Defendants offered in evidence (Exhibit 3) a map showing the location of existing elementary and secondary schools operated by the Obion County Board of Education, showing the geographical distribution in the county of Negro children of school age and the proposed boundary lines for elementary and secondary school districts.

With respect to elementary school districts, Cloverdale, Dixie, Hornbeak, Kenton, Mason Hall and Troy have no Negro children of elementary school age living within their borders and therefore create no problem at this time as to desegregation. There are Negro children of this age living in the Rives district and the Board plans to have them attend the heretofore "white" Rives elementary school. There are also Negro children of this age living in the Obion, South Fulton and Woodland Mills elementary school districts, and the Board proposes to continue to operate both the heretofore "white" and "Negro" elementary schools in those districts, giving both white and Negro children within the district a choice as to which they will attend. It appears that the Board has also operated, only for Negroes, a Kenton elementary school located across the line in Gibson County which is attended only by Negro children, all of whom live in that county. This presents an anomalous situation and no clear reason for its existence has been shown.

With respect to secondary school districts, Kenton and Mason Hall have no Negro children of that age living within their boundaries and therefore create no problem at this time as to desegregation. There are Negro children of this age living within the boundaries of the South Fulton secondary school district, and the Board proposes to continue to operate both the heretofore "white" and "Negro" secondary schools in this district, giving both the white and Negro children within the district a choice as to which school they will attend. The Board proposes that all other Negro children of secondary school age in the County, all of whom now live in the Obion Central secondary school district, will be assigned to attend Obion Central High, except that those who choose may attend Miles High, which is a school for Negroes operated by the City of Union City. The school system of Union City is the only one in the County not operated by the defendant Board.

Inasmuch as the principal issue raised at the hearing by the plaintiffs has to do with provisions in the plan allowing a choice in some instances, the Court will deal with that hereinafter and will now deal with provisions as to which there were no objections, and dispose of objections to the plan which raised no substantial issue.

The proposed plan provides generally that transfers may be had for good cause shown but also provides that among the factors which will be considered in granting a transfer are, for example, the fact that a white student would otherwise be required to attend a school previously attended by Negroes only. This provision seems to have been adopted verbatim from the so-called Nashville plan. While such a provision has been held by the Court of Appeals for the Sixth Circuit (Goss v. Board of Education, City of Nashville, 301 F.2d 164 (6th Cir. 1962), Maxwell v. County Board of Education of Davidson County, Tennessee, 301 F.2d 828 (6th Cir. 1962) and Kelley v. Board of Education of City of Nashville, 270 F.2d 209 (6th Cir. 1959), cert. denied, 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240) not to be unconstitutional on its face, it appears to the Court that the presence of this provision in the plan might well create a constitutional issue which should be avoided. See: Boson v. Rippy, 285 F.2d 43, 48 (5th Cir. 1960). In any event, it would certainly not add to the plan as an instrument in bringing about desegregation and the Court directs that it be eliminated. Similarly, provisions in the plan for the preservation of rights created by the Tennessee Pupil Placement or Assignment Law, T. C.A. § 49-1741 et seq., is not necessary as this law is not a vehicle for desegregation and therefore the provision has no proper place or function in the plan. See: Northcross v. Board of Education of the City of Memphis, 302 F.2d 818 (6th Cir. 1962).

The Court believes that paragraph 9 of the Judgment establishing the Chattanooga plan (Mapp v. Board of Education of Chattanooga (E.D.Tenn. April, 1962), for opinion see: 203 F. Supp. 843) is a proper one and should be inserted in this plan. This provision allows the Board to adopt any admission or transfer plan as may in its judgment be reasonable or proper for the operation of the Obion County Public Schools, provided that no such plan may be based on race or color or have as its primary purpose the delay or prevention of desegregation in accordance with the plan contemplated by this opinion. This provision will be substituted for provision contained in paragraphs 3, 4, 5 and 6 of the plan which deal with admissions and transfers.

The Board has indicated that there will be no segregation with respect to transportation to and from the schools and that all facilities in the schools, such as cafeterias, as well as school activities, including athletics, will be desegregated. This is approved by the Court and will be covered by the plan.

The school for educable mentally retarded children at Troy...