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267 chapter twenty-two Moving On If Senator Eastland thought his charge of court packing would intimidate Elbert Tuttle, he quickly learned that he was wrong. The man who survived hand-to-hand combat in the Pacific theater was not about to be intimidated by the sound and fury of his detractors, even when they included a U.S. senator. Tuttle, who had already mapped the way with his pathbreaking orders, continued to show his frustration with the painfully slow pace at which desegregation litigation proceeded. Georgetown, Texas, lies just twenty-six miles north of Austin on the historic Chisholm Trail. In 1960 its three schools accommodated approximately 1,064 white and 165 black children; of the black students, 40 or 45 were in high school. White students attended either an elementary or a high school; black students attended a single school that housed grades one through twelve. An accreditation committee of the Texas Education Agency visited Georgetown in 1960; the committee reported that all three schools were crowded and in need of updating and that the black school was markedly inferior with reference to both its physical plant and its academic program. The city fathers responded with a bond issue, authorized by a July 1962 election, in the amount of $525,000. They planned to erect a new junior high school for white students only, to expand the whitesonly high school facility, and to erect a new twelve-grade school for black students only. The black citizens of Georgetown had been waiting since 1955 for some move toward compliance with Brown; it now appeared they would wait forever. They filed suit, seeking an injunction against the expenditure of public funds for segregated schools. The school board argued that it was simply complying with a Texas statute that mandated racially segregated schools, and the Texas trial court judge denied relief. The Texas 268 « chapter twenty-two Court of Appeals quickly reversed, noting that the Texas Supreme Court had held all such statutes to be unconstitutional.1 On September 5, 1962, a group of some twenty black schoolchildren filed suit in federal district court seeking to enjoin the school board from continuing to operate racially segregated schools. When the case came on for trial on June 24, 1963, the board offered a plan for desegregation: beginning with the first grade in September 1964, it would desegregate one grade a year. By 1975 all twelve grades would be desegregated. Federal District Court Judge Ben Herbert Rice Jr. entered the board’s plan as his order.2 The children appealed. Judge Gewin wrote the opinion for the Fifth Circuit panel that heard the appeal. Joined by Judge Hutcheson, he affirmed the opinion with one modification: writing in February 1964, the judges saw no reason why both the first and second grades should not be desegregated in the fall term. Tuttle dissented. He agreed with the modification, but he thought it offered too little too late. He noted that the small number of black students made desegregation relatively easy to achieve. Moreover, seventy-seven white students who were not residents of the Georgetown District were allowed to attend its schools; that made “overcrowding” a specious argument. What really mattered was not in dispute: the black schools were deficient in every way. The board had long been derelict in its duty to offer separate but equal educations and derelict in its duty to dismantle Jim Crow segregation . The plaintiff children, to Tuttle’s mind, had offered forbearance. After giving the board eight long years, they had not asked for immediate desegregation but rather offered a three-year plan. What was most galling was the fact that the eleven-year snail’s pace plan approved by the court meant that not one of the plaintiffs would ever be in a desegregated class. Tuttle tried hard for Hutcheson’s vote, and when he didn’t get it, he tweaked him with a reference to one of his favorite allusions: “Over the years of my association with my esteemed colleague Judge Hutcheson, he has occasionally commented very effectively that a court should not ‘keep the word of promise to (the) ear, and break it to (the) hope.’3 I had hoped that in the circumstances here present he would, as would my brother Gewin, realize to what degree this Court would be guilty of such a charge if we were to affirm the judgment of the trial court.”4 Hutcheson responded in a special concurrence, and in his...

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