Judge Frank Hooper's Ruling: Calhoun vs. Latimer:

In this action a number of Negro children of Atlanta seek to obtain an injunction against defendants who are in charge of the operation of the Atlanta Public School system "from operating the Public School System of Atlanta on a racially segregated basis and enjoining the defendants from refusing to permit the minor plaintiffs to attend any public school in the City of Atlanta which they are otherwise qualified to attend solely because of their race and color." The plaintiffs do not allege that they have made application for admission to any particular school in Atlanta and have been denied admission solely on account of their race. They do contend, however, that defendants "are presently operating the Public School System of Atlanta on a racially segregated basis pursuant to policy, useage, regulations and laws of the State of Georgia enforcing racial segregation in public institutions (Para 9)." It is alleged that the next friends of these minor plaintiffs, being their parents, have filed between the dates of June, 1955 through September,1956 written petitions with defendants to re-organize such public schools on a racially nonsegregated basis in compliance with the decision of the United States Supreme Court in the case of Brown vs. Board of Education, 347 U.S. 483, but defendants have failed and refused to do so.

Just prior to the trial of the case this Court entered an Order to the effect that the Court would take judicial cognizance of the fact that the Public Schools of Atlanta had been operated, and were being operated, on a racially segregated basis. This assumption by the Court was based upon certain acts of the Georgia Legislature preventing the mixing of the races in the schools, the political campaigns of many official's pledging the continuance of segregation, public meetings held in the City of Atlanta debating the question as to whether, should the Court enjoin segregation, the Atlanta Public Schools should be closed and private schools organized, nor whether on the other hand, there should be so-called "token integration" similar to that as contemplated by a recent Act of the Legislature of the State of Alabama, which has had the approval of the United States Supreme Court.

Counsel for defendants, however made vigorous objection to this assumption upon the part of the Court and expressed a desire to produce evidence to show that defendants had not pursued a policy of racial discrimination in violation of the principles set down by the United States Supreme Court, by the Fifth Circuit Court of Appeals, and by many other appellete courts in the land. As the burden of proof on the issue rested with the plaintiffs the Court heard evidence on the same from several witnesses, but did not find it necessary to hear from some forty-one witnesses in the court room which were sworn by the parties. Witnesses on the same issue, which would have been cumulative, were not heard. The trial consumed one usual court day, extending from 9:30 A.M. to 4:30 P.M., at the conclusion of which the Court announced its ruling but on account of the pressure of other trials, has not been able until now to prepare Findings of Fact, Conclusions of Law and a Final Decree.

THE FACTS IN THE CASE

The testimony was undisputed to the effect that plaintiffs are Negro children of the City of Atlanta, attending its public schools, and that such schools are under the control and supervision of defendants. It is undisputed that defendants now, and ever since the establishment of the Atlanta School System, have been providing separate schools for white and Negro children, although defendants through their counsel contended that such separation arose through the choice of the Negroes themselves. The sole issue of fact therefore, was whether or not racial discrimination existed in the custom and practice of the operation of the Atlanta Public Schools. The Court finds that the undisputed evidence in the case demands that this question be answered in the affirmative.

Plaintiffs put upon the witness stand one of the defendants, Dr. Rufus. E. Clement, a Negro who had been elected and re-elected by the citizens of Atlanta to the Board of Education. He testified positively that racial discrimination did exist. Miss Ira Jarrell, for some years Superintendent of the Atlanta Public Schools, she being a defendant who was sworn as an adverse witness, testified as to the manner In which school children, Negro and white, were allocated to the various schools. While she did not testify that definite areas surrounding each of the schools were designated for either white or colored, she stated that for the most part that children did attend the schools nearer to their residences, but that requests by students and their parents to be allowed to attend other schools were usually granted.

Plaintiffs put in evidence excerpts from the Minutes of many meetings of the Board of Education from which it appeared that
certain schools of the city were designated as "colored," others as "white." Thus, the Minutes of April 11, 1955 showed a recommendation for the election of a certain person as a teacher under the classification "colored, elementary," and two others under the classification "colored." Similar references are made in the Minutes of some ten other subsequent meetings, extending almost to the date of the trial. There was also undisputed evidence to the effect that in connection with the issuance of bonds for the building of new schools through many years, designation was made of such schools as "Negro" or "white."

If, however, there exists any room for doubt as to racial discrimination prior to 1955, it would be dispelled by the circumstance that during that year and for some years subsequent thereto, the plaintiffs in this case have filed written petitions with defendants seeking the ending of racial discrimination. They were not advised that racial discrimination did not exist, but on the other hand were informed that the matter would be taken under consideration and studied. There the matter has rested for some four years.

NATURE OF TIM DECREE TO BE RENDERED

At the opening of this trial the Court announced that relief would be awarded petitioners similar to that granted by the United States District Court for the Eastern District of Louisiana, which was approved on appeal by the Fifth Circuit Court of Appeals, in the case of Orleans Parish School Board vs. Bush, 242 F.2d. 158, decided April 5, 1957. In that case approval was given to a judgment of the trial court which enjoined the school authorities "from requiring and permitting segregation of the races in any school under their supervision, from and after such time as may be necessary to make arrangements for admission of children to such schools on a racially non-discrimatory basis, with all deliberate speed as required by the decision of the Supreme Court in Brown vs. Board of Education of Topeka, 349 U.S., 294." In that case, as in this one, it appeared that the plaintiffs "as Negro students, were seeking an end to a local school board rule that required segregation of all Negro students from all white students." They "were not seeking specific assignments to particular schools." The Court stated:

"As patrons of the Orleans Parish School System they are undoubtedly entitled to have the District Court pass on their right to seek relief."

Even the most ardent segregationists have now acknowledged that the Brown decision is the law of the land. Legislatures in many states, including Georgia, have, since the rendition of that decision, been passing legislation seeking to avoid its consequences. For this Court to declare as law that which is not law would be not only a futile gesture, but a great disservice to our people. It would add to the confusion already existing in the public mind, it would build up hopes destined to be destroyed on appeal, and it would delay the efforts now being made by our people to find the best solution possible to a critical and urgent problem.

This Court is under no duty, nor does it have the power, to order integration, but it is compelled to enjoin racial discrimination. It is not the function of the Court to suggest to defendants how such discrimination can best be eliminated, but the plan must originate with the defendants and be submitted to the Court for approval. Nothing said by the Court during the trial of this case was intended to be an expression of opinion by the Court as to the plan, but the Court did assume, and now assumes, that any plan submitted would contemplate a gradual process, which would contemplate a careful screening of each applicant to determine his or her fitness to enter the school to which application is made. The Supreme Court has said that school authorities must proceed with "deliberate speed" toward the elimination of racial discrimination, and this Court interprets the expression "deliberate speed" to mean such speed as is consistent with the welfare of all our people, with the maintenance of law and order, and with the preservation if possible of our common school system. The custom and practice of maintaining separate schools for Negroes and whites has existed in this state for many years, with the approval of the highest Courts of the land, and it cannot rapidly and suddenly be ended.

It will be necessary for defendants within a reasonable time to signify to this Court the manner in which defendants propose to eliminate racial discrimination.

This Court fully recognizes the difficult position in which defendants herein are placed. If they integrate the schools, all state money under existing laws will be cut off and may be that such funds are necessary for the operation. The continued operation, however, with discrimination as in the past, will not be permitted.

In cases such as this a solution must be found to fit the particular conditions which exist. This Court feels that it should give defendants a reasonable opportunity to submit to the Court a plan whereby racial discrimination will be discontinued. However, such a plan may be submitted subject to approval thereof by the Georgia Legislature, and the Court would allow sufficient time for the Georgia Legislature to act upon the same. If defendants submit a reasonable plan, and it should be approved by the Court, defendants would have done all that they are able to do under the circumstances. Failure of defendants, however, within a reasonable time to submit any plan whatsoever shall be construed by the Court to be a refusal to do so. The Court will do everything in its power toward working out any possible solution to this matter within the framework of the law, as declared upon repeated occasions by our appellate courts. Counsel for plaintiffs shall submit to this Court a decree in conformity herewith, serving defense counsel, who shall within ten days of such service notify this Court of any objections thereto.

This the 16th day of June 1959.

FRANK H. HOOPER.

United States District Judge

source: Atlanta Journal, June 17, 1959