Appendix — Metropolitan County Board of Education v. Kelley

82-702

- Supreme Court, U.S.

FILED

No. OCT 22 1982

ALEXANDER .. STEVAS

CLERK

IN THE

Supreme Court of the United States

OcToBer TERM, 1982

METROPOLITAN COUNTY Boarb OF EDUCATION OF

NASHVILLE AND DavipsON COUNTY, TENNESSEE, ef a/.,

Petitioners,

Vv.

Ropert W. KELLEY, ef a/.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WittiaM R. Witis, Jr.

MARIAN F. HARRISON

Wiis & KNIGHT

215 Second Avenue, North

Nashville, Tennessee 37201

(615) 259-9600

Attorneys for Petitioners

October 22, 1982.

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Appendix A - Opinion of the Sixth Circuit Court of Ap-

GINS FE Eire Bec hc ccccccccccccccccess

Appendix B - 479 F. Supp. 126 (1979) - Kelley v. Metro

Board of Education, et al. ............55seeeees

Appendix C - 492 F. Supp. 167 (1980) - Kelley v. Metro-

Appendix D - 511 F. Supp. 1363 (1981) - Kelley v. Metro-

SG ee GG seccccucescccccccce

Appendix E - Order of Sixth Circuit Court of Appeals

I GED Ce 66 6006605ss cécccdsccees

Appendix F - Chambers Memorandum of Justice Stevens

Appendix G - Unpublished Memorandum Opinion of

U. S. District Judge L. Clure Morton, dated June

EF re eT ee

Appendix H - 463 F. 2d 732 (1972) - Kelley v. Metro-

politan Cty. Bd. of Ed. of Nashvilie, Tenn........

A-62

A-128

A-155

A-157

A-159

an Syl an

APPENDIX A

No. 81-5370

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Robert W. Kelley, et al.,

Plaintiffs-Appellants,

Vv.

Metropolitan County Board of

Education of Nashville and

Davidson County, Tennessee,

Defendants-Appellees.

Appeal from the

United States District

Court for the Middle

District of Tennessee.

Decided and Filed July 27, 1982

Before: EDWARDS, Chief Judge, JONES, Circuit Judge

and CELEBREZZE, Senior Circuit Judge.

EDWARDS, Chief Judge, delivered the opinion of the

Court, in which JONES, Circuit Judge, joined.

CELEBREZZE, Circuit Judge, (pp. 25-35) filed a separate opi-

nion, concurring in part and dissenting in part.

EDWARDS, Chief Judge. This much delayed school

desegregation case is before this court for review of a desegrega-

as AO an

tion plan approved by the District Court.' It offers no new legal

issues and can and must be decided by this court on the basis of

final decisions of the United States Supreme Court. Milliken v.

Bradley, 433 U.S. 267 (1977) (Milliken II) requires our affir-

mance of the District Court on several issues. The cases that re-

quire our reversal of two issues decided by the lower court are

legion. Leading the list are Brown v. Board of Education, 347

U.S. 483 (1954); Green v. County School Board, 391 U.S. 430

(1968); Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971); Keyes v. School District No. 1, 413 U.S. 189

(1973); Penick v. Columbus Board of Education, 583 F.2d 787

(6th Cir. 1978), aff'd, 443 U.S. 449 (1979); Reed v. Rhodes, 607

F.2d 714 (6th Cir. 1979, cert. denied, 445 U.S. 935 (1980); and

last but not least, Kelley v. Metropolitan Board of Education,

463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001 (1972).

It should be noted at the outset that this case is markedly

distinguished in legal terms from those that have come before

this and other courts from states where segregation by law has

never existed or was long ago statutorily abandoned. In those

cases, the federal courts have been primarily concerned with the

question of whether or not predominantly black and

predominantly white schools existed as a result of intentional

segregative practices on the part of the school boards concern-

ed. See Reed v. Rhodes, supra; Penick v. Columbus Board of

Education, supra; Brinkman v. Gilligan, 583 F.2d 243 (6th Cir.

1978), aff'd sub nom, Dayton Board of Education v.

Brinkman, 443 U.S. 526 (1979) (Dayton II). No such inquiry is

necessary in this case; Tennessee’s history of de jure segregation

is well-established.

In 19.5, when litigation aimed at desegregating the Nashville

schools began, racial segregation was constitutionally and

' Kelley v. Metropolitan County Board of Education, 511 F. Supp.

1363 (M.D. Tenn. 1981).

—_*

statutorily mandated in Tennessee, and the Schoo! Board was in

full compliance with those provisions. Article 11 § 12 of the

state constitution proclaimed: ‘‘No school established or aided

under this section shall allow white and negro children to be

received as scholars together in the same school,’’ and statutes

consistent with this provision were enacted. See T.C.A. §§

49-3701 et seq. In 1956, the Tennessee Supreme Court struck

down the statutes requiring compulsory separation of races,

Roy v. Brittain, 297 S.W.2d 72 (Tenn. 1956), and in 1959 this

court invalidated a new law allowing local school boards to pro-

vide white, black and mixed schools, with aiiendance to be

determined by parental choice. Kelley v. Board of Education,

270 F.2d 209 (6th Cir.), cert. denied, 361 U.S. 924 (1959). The

statutes thereafter were omitted from the revised statutory com-

pilation, with the compiler’s note stating the statutes had been

omitted because they were unconstitutional, citing to the above-

named cases. In 1970, the Tennessee Legislature did pass a law

mandating the public schools would be open to persons of all

races, see Tenn. Code Ann. § 49-1770 (1977). But it was not un-

til 1978 that Tennessee’s constitution was amended to delete the

requirement of separate schools. Finally, effective March 15,

1979, more than twenty years after the laws were declared un-

constitutional, the Tennessee Legislature repealed the old

school segregation statutes.

It therefore is clear that when the first ‘‘comprehensive and

potentially effective desegregation order’’? was entered in this

case in 1971, the existing racial separation in the Nashviiic

schools had resulted from de jure segregation. And despite the

1971 plan’s potential, the record establishes and the District

Court found that desegregation in the Nashville schools has

never been achieved. Thus the effects of state-imposed segrega-

tion have yet to be eradicated.

? 463 F.2d at 734.

aw feb oo

It was the School Board’s implementation of the 1971 plan

that prevented effective desgregation, according to the District

Court. In Kelley v. Metropolitan Board of Education, 463 F.2d

732 (6th Cir.), cert. denied, 409 U.S. 1001 (1972), this court ap-

proved the 1971 HEW-drafted desegregation remedy, which

was based on Swann v. Charlotte-Mecklenburg, supra, and

which attempted to achieve desegregation through zoning.

After the plan had been in effect for one year, the Board peti-

tioned for changes, claiming hardships had arisen from the plan.

The District Court emphatically rejected the petition, find-

ing the Board had not acted in good faith in implementing the

desegregation remedy. Thereafter, the Board submitted pro-

posals for construction and for a kindergarten program using

portables, which both were opposed by plaintiffs as inconsistent

with the approved plan. Plaintiffs later petitioned that the

Board be held in contempt for its unsanctioned implementation

of the proposals. In 1978 the Board petitioned to amend school

attendance zones; plaintiffs then amended their contempt peti-

tion.

In 1979, the District Court began hearings on all pending mat-

ters concerning the school system.’ From the proof presented,

the District Court found the Nashville-Davidson County school

system had become increasingly segregated in the years since

1971. The original remedy had not extended throughout the

county, and whites had been able to avoid the plan by fleeing to

the outer reaches, leaving the inner city schools with a high

black population. After reviewing the evidence, the District

Court stated, ‘‘[t}he resegregation, resulting, at least in part,

* Several of the issues pending before the District Court when hear-

ings were resumed in 1979 still have not been heard. These pending

matters include allegations of discriminatory faculty and staff

assignments, charges that the defendants are in contempt of court,

and motions for attorneys’ fees.

oa fd =

from the nonetheless good faith efforts of the School Board in

the implementation of the Court’s order, amounts to a de jure

segregation.”’ Kelley v. Metropolitan County Board of Educa-

tion, 479 F. Supp. 120, 123 (M.D. Tenn. 1979). This

‘‘resegregation’’ was exacerbated by the Board’s institution of

an optional transfer policy that violated the spirit of the 1971

order and emasculated desegregation efforts, according to the

District Court.

Judge Wiseman’s determination that desegregation has never

been achieved in the Nashville-Davidson County school system

is amply supported by the record, and that finding, therefore, is

affirmed. Thus the School Board remains under its duty “‘to

eliminate from the public schools all vestiges of state-imposed

segregation.’’ Swann v. Charlotte-Mecklenburg Board of

Education, 402 US. 1, 15 (1971).

EDUCATIONAL COMPONENTS

As a result of the 1979 hearings, the District Court ordered

the Board to formulate a new desegregation plan ‘‘assuming no

parameters heretofore ordered by the Court, but with the

primary objective of the achievement of a unitary school system

for the entirety of Davidson County.’ 479 F. Supp. at 122.

After several proposals and in accordance with specific instruc-

tions from the District Court, see Kelley v. Metropolitan Coun-

ty Board of Education, 492 F. Supp. 167 (M.D. Tenn. 1980),

the Board drafted a plan that gained the District Court’s ap-

proval. Kelley». Metropolitan County Board of Education, 511

F.Supp. 1363 1.D. Tenn. 1981). It is plaintiffs’ appeal from

this order that is before us.

We affirm certain aspects of this plan. With regard to the

District Judge’s orders concerning education components, we

approve the remediation program planned by the Board of

Education’s staff for ‘“‘those schools or classes where the

achievement levels are below the average for the system and/or

=~ Aba

where the majority of a school’s population is made up largely

of socio-economically deprived children who suffer the continu-

ing effects of prior discrimination.’’ 511 F. Supp at 1368-69.

Our affirmance of this issue does not depend upon the outcome

of any other issue in this case, nor does it depend upon whether

or not Title I federal funds are available. See Milliken v.

Bradley, 433 U.S. 267 (1977).

Likewise, this court affirms the District Judge’s order for the

use of West End Junior High School as a magnet school, with

selection criteria designed to provide equal access to all races.

Further, we affirm the District Court’s approval of the already

launched Afro-American studies program. While we note plain-

tiffs’ objections to lack of specificity of such programs, we

believe this is a matter that can be handled by the District Court

and the School Board without intervention by the appellate

court. Finally, we affirm the Distract Judge’s approval of the

“Together We Can. . . Together We Will’’ program.

PUPIL ASSIGNMENT COMPONENT -

MIDDLE SCHOOLS AND HIGH SCHOOLS

In large measure, the pupil assignment components of this

plan do not withstand constitutional scrutiny. In fashioning its

school desegregation plan, the Board was directed by the

District Court to bring about a 15% minimum presence of either

race in each middle school (grades 5-8), and application of this

standard to the high schools as well was accepted by the lower

court. The District Court’s choice of 15% either race minimum

presence as a desegregation standard would find acceptable

schools that are either 85% white or 85% black. This figure is

clearly not appropriate as a “‘starting point’’ in a school system

that has a 68% white-32% black racial composition.‘

* At the middle school level, seven of the 24 schools are projected as

majority black, and fully one-half would fall outside of a 15% plus or

minus deviation from the 32% minority presence in the school system.

—_.

In Swann v. Charlotte-Mecklenburg Board of Fducation, 402

U.S. 1, 23-25 (1971), Chief Justice Burger wrote for a

unanimous Supreme Court as follows:

In this case it is urged that the District Court has impos-

ed a racial balance requirement of 71%-29% on individual

schools. The faci that no such objective was actually

achieved - and would appear to be impossible - tends to

blunt that claim, yet in the opinion and order of the

District Court of December 1, 1969, we find that court

directing

“that efforts should be made to reach a 71-29 ratio in the

various schools so that there will be no basis for conten-

ding that one school is racially different from the others . .

. . [t}hat no school [should] be operated with an all-black

or predominantly black student body, [and] [tjhat pupils

of all grades [should] be assigned in such a way that as

nearly as practicable the various schools at various grade

levels have about the same proportion of black and white

students.””

The District Judge went on to acknowledge that varia-

tion *‘from that norm may be unavoidable.’’ This contains

intimations that the ‘“‘norm’”’ is a fixed mathematical racial

balance reflecting the pupil constituency of the system. If

we were to read the holding of the District Court to re-

quire, as a matter of substantive constitutional right, any

particular degree of racial balance or mixing, that ap-

proach would be disapproved and we would be obliged to

reverse. The constitutional command to desegregate

schools does not mean that every school in every communi-

ty must always reflect the racial composition of the school

system as a whole.

As the voluminous record in this case shows, the

predicate for the District Court’s use of the 71 %-29% ratio

was twofold: first, its express finding, approved by the

Court of Appeals and not challenged here, that a dual

= ABa

school system had been maintained by the school

authorities at least unti! 1969; second, its finding, also ap-

proved by the Court of Appeals, that the school board had

totally defaulted in its acknowledged duty to come forward

with an acceptable plan of its own, notwithstanding the pa-

tient efforts of the District Judge who, on at least three oc-

casions, urged the board to submit plans.’ As the state-

ment of facts shows, these findings are abundantly sup-

ported by the record. It was because of this total failure of

the school board that the District Court was obliged to

turn to other qualified sources, and Dr. Finger was

designated to assist the District Court to do what the board

should have done.

(footnotes 7 and 9 omitted).

We see therefore that the use of mathematical ratios was

no more than a starting point in the process of shaping a

—_.

As mentioned earlier, this record shows the black-white pupil

ratio in the Nashville-Davidson County school system to be

68% white and 32% black. It is that ratio the District Court

should have employed as the “‘starting point’’ in the remedy-

fashioning process.

The District Judge selected the admittedly arbitrary 15%

either race figure because ‘‘it seem[ed] to represent a reasonable

attempt to provide intercultural and interracial contact as a

foundation for social harmony.’’ 492 F. Supp. at 193. This

selection, and such other errors as we find in the District Court’s

opinions and orders, originate with his apparent conclusion that

the unanimous opinion of the Supreme Court in Swann has

somehow been overruled or eroded. But the disposition of cases

originating in this and other circuits does not support any such

conclusion. In fact, Swann was strongly reaffirmed by the

Supreme Court’s approval of this court’s opinion in Penick v.

Columbus Board of Education, 583 F.2d 787 (6th Cir. 1978),

aff'd, 443 U.S. 449 (1979). The Swann opinion is the law of the

land. And this court, the District Court for the Middle District

of Tennessee, and the School Board of Nashville and Davidson

County are required by our constitutional form of government

to follow its standards. In accordance with those standards, the

District Judge will be required on remand of this case to deter-

mine the currently prevailing racial population of the school

system concerned and to employ that ratio as a ‘‘useful starting

point in shaping a remedy to correct past constitutional viola-

tions.”’

We approve all other aspects of the middle school and high

school plans, recognizing, of course, that rejection of the 15%

either race minimum presence as a desegregation standard will

Whenever the Swann discussion set out above requires revision

of these school plans, such revisions must be made. We note our

awareness that this instruction encompasses Swann’s recogni-

— A-10 —

tion that there is no constitutional right to any ‘‘particular

degree of racial balance.’’ But we also recognize that

predominantly one-race schools deserve ‘‘close scrutiny’’ and

that the duty on the Board and courts to dismantle a dual

system is clear:

The district judge or school authorities should make

every effort to achieve the greatest possible degree of ac-

tual desegregation and will thus necessarily be concerned

with the elimination of one-race schools. No per se rule can

adequately embrace all the difficulties of reconciling the

competing interests involved; but in a system with a history

of segregation the need for remedial criteria of sufficient

specificity to assure a school authority’s compliance with

its constitutional duty warrants a presumption against

schools that are substantially disproportionate in their

racial composition. Where the school authority’s proposed

plan for conversion from a dual to a unitary system con-

tempiates the continued existence of some schools that are

all or predominately of one race, they have the burden of

showing that such school assignments are genuinely non-

discriminatory. The court should scrutinize such schools,

and the burden upon the school authorities will be to

satisfy the court that their racial composition is not the

result of present or past discriminatory action on their

part.

wann, supra at 26. (emphasis added).

In line with this duty, we suggest the formula employed by

this court in the Columbus case, i.e., use of a 15% plus or minus

deviation from the 68-32% white-black ratio for all students in

the schools system.’

* An essential element of the plan on remand thus will include

“reassigning students to achieve the greatest possible number of

— A-ll —

PUPIL ASSIGNMENT COMPONENT - GRADES K-4

The District Court directed the Board ‘‘to establish a system

of K-4 or K-S [Kindergarten through fourth or fifth grade]

elementary schools of a neighborhood character, all the while

schools.’’ See Liddell v. Board of Education of City of

St. Louis, 667 F.2d 643 (8th Cir. 1981). We reemphasize that we are

not requiring any precise degree of racial mixing, but we are requiring

the District Court to use all feasible methods of pupil assignment to

maximum amount of integration possible.

to

but novel.

achieve the

A directive employ a racial balancing approach clearly is

anything but For example, this court in Northcross v. Board of

Education of Memphis City Schools, 466 F.2d 890 (6th Cir. 1972),

cert. denied, 410 U.S. 926 (1973), approved the District Judge’s view

that Swann required more “‘intensified desegregation efforts’’ for

Memphis than a neutral geographic zone assignment plan and his con-

comitant order of busing to achieve racial balance. We stated:

It is thus clear that far from having achieved a unitary school

system, the Board has helped to perpetuate the old dual system.

Under these circumstances there can be no doubt that the

District Court was under an obligation to order the adoption of

a plan providing for further desegregation. Since many of the

one-race schools are clearly the result of discriminatory actions

of the School Board there can be no doubt that under any inter-

pretation of Swann the elimination of such schools must be one

of the objectives of any appropriate desegregation plan.

Id. at 893-94 (emphasis added).

It is beyond dispute that Nashville has never achieved unitary status,

in large part because of the Board’s implementation of the 1971 plan.

We do not believe the District Court and Board fulfilled their duties to

eliminate one-race schools by accepting as desegregated 85% black

and 85% white schools.

We recognize our directive to the District Court in this case is quite

specific. Our specificity, however, is made necessary by our view that

‘*a plan that at this late date fails to provide meaningful assurance of

prompt and effective disestablishment of a dual system is . . . in-

tolerable.’’ Green v. County School Board, 391 U.S. 430, 438 (1968).

— Al? —

maximizing opportunities for integration in a neighborhood set-

ting.’’* The Board complied, and this plan was approved by the

District Court. This was fundamental errur, unconstitutional

under Brown v. Board of Education, 347 U.S. 483 (1954);

Green v. County School Board, 391 U.S. 430 (1968); Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971);

Keyes v. School District No. 1, 413 U.S. 189 (1978); Penick v.

Columbus Board of Education, 443 U.S. 449 (1979), and

Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979).

All of these cases have held or implied that the constitutional

barrier to racially segregated «ols applies to a// schools in the

system, including the early grades.

In this case, the District Judge’s order would serve to

resegregate or to maintain segregation in grades K-4. Forty-

seven of the 75 elementary schools would be more than 90% one

race, with 14 schools projected as more than three-fourths

black.

The District Judge based his directive on the perceived

benefits of a neighborhood school system for elementary

students, noting the desirability of parent-teacher contact,

reduced pupil-teacher ratios, and other ‘‘educational’’ advan-

tages.’ In Swann, Chief Justice Burger considered pro-

neighborhood arguments, presumably similar to those influenc-

ing the District Judge in this case, and found them wanting:

* 511 F. Supp. at 1371.

’ The importance of desegregated schools, however, particularly for

minority students, was recently emphasized by the Supreme Court:

Education has come to be ‘‘a principal instrument in awakening

the child to cultural values, in preparing him for later profes-

sional training, and in helping him to adjust normally to his en-

vironment.’’ Brown v. Board of Education, 347 U.S. 483, 493

(1954). When that environment is largely shaped by members of

different racial and cultural groups, minority children can

— A-13 —

Washington v. Seattle School District, 50 U.S.L.W. 4998, 5002

(June 30, 1982).

Absent a constitutional violation there would be no basis

for judicially ordering assignment of students on a racial

basis. All things being equal, with no history of discrimina-

tion, it might well be diseirable to assign pupils to schools

nearest their homes. But all things are not equal in a system

that has been deliberately constructed and maintained to

enforce racial segregation. The remedy for such segrega-

tion may be administratively awkward, inconvenient, and

even bizarre in some situations and may impose burdens

on some; but all awkwardness and inconvenience cannot

be avoided in the interim period when remedial ad-

justments are being made to eliminate the dual school

systems.

No fixed or even substantially fixed guidelines can be

established as to how far a court can go, but it must be

recognized that there are limits. The objective is to disman-

tle the dual school system. ‘‘Racially neutral’’ assignment

plans proposed by school authorities to a district court

may be inadequate; such plans may fail to counteract the

continuing effects of past school segregation resulting

from discriminatory location of school sites or distortion

of school size in order to achieve or maintain an artificial

racial separation. When school authorities present a

district court with a “‘loaded game board,’’ affirmative ac-

tion in the form of remedial altering of attendance zones is

achieve fheir full measure of success only if they learn to func-

tion in—and are fully accepted by—the larger community. At-

tending an ethnically diverse school may help accomplish this

goal by preparing minority children ‘“‘for citizenship in our

pluralistic society,’’ Estes v. Metropolitan Branches of the

— 444 U.S. 437, 451 (1980) (PowELL, J., dissen-

— A-14 —

proper to achieve truly non-discriminatory assignments. In

short, an assignment plan is not acceptable simply because

it appears to be neutral.

402 U.S. at 28.

It is thus clear from Swann that no matter whether

neighborhood schools may be desirable on some grounds, their

advantages cannot outweigh the constitutional requirement to

desegregate the schools.

The unanimous Swann opinion also dealt squarely with the

issue of busing, another concern of the District Judge in this

case:

(4) Transportation of Students

The scope of permissible transportation of students as

an implement of a remedial decree has never been defined

by this Court and by the very nature of the problem it can-

not be defined with precision. No rigid guidelines as to stu-

dent transportation can be given for application to the in-

finite variety of problems presented in thousands of situa-

tions. Bus transportation has been an integral part of the

* In the Supreme Court’s latest consideration of the neighborhood

school concept, the majority struck down a statewide initiative

adopted by the voters of the state of Washington that would have re-

quired limiting school attendance to those students residing in the

neighborhood of the school concerned. While the majority decision

was joined by five Justices, the four dissenters emphasized that they

disagreed because there was no “affirmative duty to integrate the

schools in the absence of finding of unconstitutional segregation.”’

Washington v. Seattle School District, 50 U.S.L.W. 4998 (June 30,

1982). in so doing, the four dissenters cited with approval the case

upon which this opinion strongly relies, Swann, supra.

Thus we read Washington v. Seattle School District as unanimous

on the crucial issue in our present Nashville case.

— A-1S —

public education system for years, and was perhaps the

single most important factor in the transition from the

one-room schoolhouse to the consolidated school. Eigh-

teen million of the Nation’s public school children, ap-

proximately 39%, were transported to their schools by bus

in 1969-1970 in all parts of the country.

The importance of bus transportation as a normal and

accepted tool of educational policy is readily discernible in

this and the companion case, Davis, supra.'' The Charlotte

school authorities did not purport to assign students on the

basis of geographically drawn zones until 1965 and then

they allowed almost unlimited transfer privileges. The

District Court’s conclusion that assignment of children to

the school nearest their home serving their grade would not

produce an effective dismantling of the dual system is sup-

ported by the record.

'' During 1967-1968, for example, the Mobile board used 207

buses to transport 22,094 students daily for an average round

trip of 31 miles. During 1966-1967, 7,116 students in the

metropolitan area were bused daily. In Charlotte-Mecklenburg,

the system as a whole, without regard to desegregation plans,

planned to bus approximately 23,000 students this year, for an

average daily round trip of 15 miles. More elementary school

children than high school children were to be bused, and four

and five-year-olds travel the longest routes in the system.

Thus the remedial techniques used in the District Court’s

order were within that court’s power to provide equitable

relief; implementation of the decree is well within the

capacity of the school authority.

The decree provided that the buses used to implement

the plan would operate on direct routes. Students would be

picked up at schools near their homes and transported to

the schools they were to attend. The trips for elementary

— A-16 —

school pupils average about seven miles and the District

Court found that they would take “‘not over 35 minutes at

the most.’’'? This system compares favorably with the

transportation plan previously operated in Charlotte under

which each day 23,600 students on all grade levels were

transported an average of 15 miles one way for an average

trip requiring over an hour. In these circumstances, we

find no basis for holding that the local school authorities

may not be required to employ bus transportation as one

tool of school desegregatior. Desegregation plans cannot

be limited to the walkin school.

'? The District Court found that the school system would have

to employ 138 more buses than it had previously operated. But

105 of those buses were already available and the others could

easily be obtained. Additionally, it should be noted that North

Carolina requires provision of transportation for all students

who are assigned to schools more than one and one-half miles

from their homes. N. C. Gen. Stat. § 115-186(b) (1966).

Swann, supra at 29-31.

An objection to transportation of students may have

validity when the time or distance of travel is so great as to

either risk the health of the children or significantly imp-

inge on the educational process. District courts must weigh

the soundness of any transportation plan in light of what is

said in subdivision (1), (2), and (3) above. It hardly needs

stating that the limits on time of travel will vary with many

factors, but probably with none more than the age of the

students. The reconciliation of competing values in a

desgregation case is, of course, a difficult task with many

sensitive facets but fundamentally no more so than

remedial measures courts of equity have traditionally

employed.

= At? =

The Court’s approval of transportation for elementary

students illustrates the fact that these groups of children are not

automatically or easily exempted from a busing program. Only

when ‘“‘the time or distance of travel is so great as to either risk

the health of the children or significantly impinge on the educa-

tional process’’ should elementary children be omitted from a

busing plan. No such showing was made or required by the

District Court in this case.’

* The Circuit Courts generally have disapproved desegregation

plans that do not include all grades in the school system, often noting

that Brown v. Board of Education itself involved segregated elemen-

tary schools. ‘‘It is axiomatic that black students, particularly in the

elementary grades, suffer irreparable harm from the maintenance of a

segregated school system.”’’ United States v. School District of Fern-

dale, $77 F.2d 1339 (6th Cir. 1978). In Haycraft v. Board of Educa-

tion, 585 F.2d 803, 805 (6th Cir. 1979), cert. denied, 443 U.S. 915

(1979), this court rejected a plan that exempted first-graders from bus-

ing, saying, ‘“To exempt first grade students from busing would leave

vestiges of segregation intact contrary to this Court’s mandate.’’ The

District Court found that first graders would be subject to ‘‘a high risk

of failure”’ if forced to participate in a busing program, but this court

found such arguments an insufficient basis for exclusion. In Lee v.

Macon County Board of Education, 616 F.2d 805 (Sth Cir. 1980), the

Fifth Circuit disapproved a neighborhood school plan in a case much

like Kelley. In Lee, grades K-5 would attend neighborhood schools

with the result that two-thirds of elementary black students would at-

tend schools more than 95% black. The District Judge had based his

remedy on findings that attending a school near home was important

for young children and that pairing would interfere with individualized

instruction. The appellate court held these reasons ‘“‘legally insuffi-

cient.”

If the decision were ours initially, we might pay greater heed to

the education disadvantage), of the rapid dismantling of a dual

school system. We may not, however, weigh advantages against

disadvantages, for that judicial balancing has already been ac-

complished. The law orders eradication of all vestiges of the

dual system, if some feasible plan can be devised.

616 F.2d at 811 (citing Swann at 15).

— A-18 —

footnote 9 continued

The court said despite the school board’s “‘apparent good faith at-

tempt to desegregate in 1970,”’ the system had never become a unitary

one. Therefore, the duty to dismantle the dual school system con-

tinued, and residential patterns could not serve to justify racial im-

balance. In rejecting the District Court’s plan, the le court noted

that the temporary or permanent presence of one or more racially

identifiable elementary schools, or even an omission of some of the

earlier grades from a busing program, might be permissible. It stressed

the need, however, for detailed fact-findings indicating the cir-

cumstances motivating ‘‘any variations from complete desegregation

of Tuscaloosa’s schools.”” /d. at 812.

Numerous other courts have reached similar conclusions, In Keyes

v. School District No. 1, 521 F.2d 465 (10th Cir. 1975), cert. denied,

423 U.S. 1066 (1976), the Tenth Circuit rejected a ‘“‘part-time’’

desegregation program for elementary students. The District Court

had permitted children to spend part of the school day at their

neighborhood schools, citing a need for recreational, extra-curricular

and parental activities. In disapproving this plan, the appeals court

stated, ‘although we acknowledge such neighborhood contact to be

important, we cannot place it above the constitutional rights of

children to attend desegregated schools. We perceive those rights to

include full-time attendance in a desegregated setting.’’ Keyes at 478.

See also Adams v. United States, 620 F.2d 1277 (8th Cir.), cert

denied, 449 U.S. 826 (1980); Anderson v. Dougherty City Bd. of

Educ., 609 F.2d 225 (Sth Cir. 1980); Mills y. Polk County Bd. of

Educ., 575 F.2d 1146 (Sth Cir. 1978); United States v. Texas Ed.

Agency, 532 F.2d 380 (Sth Cir.), vacated and remanded on other

grounds, 429 U.S. 990 (1976), concepts reaffirmed, 564 F.2d 162 (Sth

Cir. 1977); Clark v. Bd. of Educ., 465 F.2d 1044 (8th Cir. 1972), cert.

denied, 413 U.S. 923 (1973); and Flax v. Potts, 464 F.2d 865 (Sth Cir.

1972), cert. denied, 409 U.S. 1007 (1972).

Also instructive is the Supreme Court's treatment of Estes v.

Metropolitan Branches of the Dallas NAACP, 444 U.S. 437 (1980)

(opinion below at 572 F.2d 1010). The Fifth Circuit had rejected the

District Court plan for desegregating Dallas on the basis that it left

existing a large number of one-race schools (defined as more than

75% one-race). Under the District Court’s plan, grades K-3 remained

in neighborhood schools, and no busing of high school students was

ordered; these limitations were largely based on the District Court’s

concerns Over resegregation, community support, and the social and

educational consequences of extensive busing. The Fifth Circuit

remanded and ordered the court to rezone or to provide time and

— A-19 —

In sum, while neighborhood schools may be desirable in a

school system free of a history of segregation, where such a

history exists, a plan must do more; it must make ‘‘every effort

to achieve the greatest possible degree of actual desegregation.’’

Some inconvenience and even awkward remedies may be

necessary where neutral assignment plans fail to desegregate the

schools. '°

Because the remedy leaves elementary schools highly

segregated, the District Court’s approval of a neighborhood

school plan for grades K-4 is rejected. On remand. the District

Judge is instructed to include these children within a pupil

assignment program drafted in compliance with this opinion,

except where inclusion would ‘‘risk the health of the children or

significantly impinge on the educational process’’ within the

meaning of Swann.

It appears to this court that Nashville has some great advan-

tages for solving the desegregation problem. It is a far more

compact city than, for example, Cleveland or Detroit, and in

general, the schools in need of desegregation are centrally

located. Of equally great importance, the school system is

Justices Powell, Rehnquist and Stewart dissented from the dismissal,

stressing a need to affirm the District Court’s “‘sensitive”” and “‘pro-

mising’’ plan. The dismissal, however, indicates the remaining

members of the court disagreed. The withdrawal of certiorari sug-

gests, particularly in the fact of the dissent, that the majority approved

the Fifth Circuit’s handling of the District Court's plan. In line with

' the Fifth Circuit, we are ordering the lower court to eliminate as far as

—_.

organized on a Davidson County-wide basis. We approve the

Board’s and District Court’s intention to apply the desegrega-

tion plan to the entire county.

As we have shown above, we are convinced the District

Court’s approval of the Board’s plan was legal error.'' In addi-

tion, we recognize the lower court’s approval was based in part

on a conviction, with which we take issue, that desegregation

has noi advanced the educational achievement levels of black

children and that it is a serious ‘“‘education cost”’ in the elemen-

tary grades. It was largely for these reasons, along with a fear of

increased ‘‘white flight,’’'? that Judge Wiseman was persuaded

to deviate from a Swann-type remedy. See 492 F. Supp. at

189-92. While doubtless the jury on the educational benefits of

desegregation will be out for a long time, recent findings in-

dicate results directly contrary to the views expressed by the

District Judge. Some of this material is very current and

therefore was unavailable to Judge Wiseman at the time his opin-

ions were written.'’ We note these findings only because of the

District Court’s strong reliance on this matter. We also note and

take this opportunity to remind the District Court that the issue

of achievement scores is constitutionally irrelevant in a school

system with a history of illegal segregation.

'' The dissent suggests that we have not employed an abuse of

discretion standard in reviewing the District Court’s plan. ‘‘Improper

application of the law, however, is itself an abuse of discretion. An

appellate court may reverse if the decision below was based on an er-

roneous view of the law. . . ."’ United States v. School District of

Ferndale, $77 F.2d 1339 (6th Cir. 1978).

'? Where the Board and court are under a duty to dismantle a dual

system, white flight cannot be used to justify a failure to meet the

obligation. In United States v. Scotland Neck Board of Education,

407 U.S. 484, 491 (1972), the Supreme Court states: ‘“‘While this

development [white flight] may be cause for deep concern to the

respondents, it cannot, as the Court of Appeals recognized, be ac-

cepted as a reason for achieving anything less than complete uprooting

of the dual public school system.”’

'? These findings can be found in the Appendix to this opinion.

— A-21 —

REMAINING ISSUES

We now turn to other issues advanced by plaintiffs’ appeal.

First, it is urged that the approved pian places a dispropor-

tionate burden of busing on black middle school students. Any

intentional effort to make the transportation burden fall more

heavily «m one race than on the other would, of course, be

violative of basic constitutional law. Many factors, however,

must be taken into account in working out a practical assign-

ment system, including availability of schools, locations of

schools, ease of travel between specific neighborhoods and

specific schools, and the facilities for education existing in such

schools. By mentioning these factors, we do not by any means

attempt to exhaust the list; the foregoing are cited purely for il-

lustration. With regard to the plaintiffs’ middle school busing

burden issue, we are unable to find the District Judge’s disposi-

tion of this issue either clearly erroneous as to facts or in viola-

tion of law. It is obvious, however, that our rejection of the

15% either race minority presence as a desegregation standard

will necessitate a substantial revision of the middle school bus-

ing program. Thus, the above is suggested as guidance to the

District Judge in weighing a new plan.

Plaintiffs also urge the retention of Pearl High School as a

senior high, objecting to its use as a middle school under the

Board’s plan. We, like the District Judge, sympathize with

plaintiffs’ argument for retention of Pearl as a high school

because of its “‘historic contribution to the black community of

Nashville,’’ 492 F. Supp. at 184. We do not find, however, that

the School Board’s decision, as affirmed by the District Judge,

to convert Pearl into a middle school and to build a new Pearl-

Cohn comprehensive high school to be based on clearly er-

roneous findings or founded in a racially discriminatory pur-

pose. Under these circumstances, we are not empowered to

here involved.

_—

As to plaintiffs’ last issues, however, we feel quite differently.

Plaintiffs’ argument that faculty and staff assignments have

been made on a racially discriminatory basis should long ago

have been the subject of hearing and decision. Faculty

desegregation is a considerably easier task than is overall

desegregation of schools. Similarly, we believe that there long

ago should have been a hearing on plaintiffs’ motion for at-

torneys’ fees and expenses. Finally, we observe that plaintiffs’

charges of contempt against the defendants should not be left in

limbo.

From this distance, we can make no judgment on these mat-

ters since no factual record has been written. The District

Court, however, should give prompt attention to all three of

these issues. The delays in this case suggest that absolute priority

be accorded to this litigation until a unitary system has been

achieved.

The dissent in this case is i utter disregard of the Supreme

Court’s interpretation of the Constitution of the United States

in such cases as Brown, supra; Green, supra; Swann, supra;

Keyes, supra; Penick v. Columbus Bd. of Educ., supra; and

Dayton 'I, supra. It goes without saying that this court is re-

quired to follow constitutional law as defined by the Supreme

Court of the United States. Marbury v. Madison, 5 U.S. (1

Cranch) 137 (1803); Cooper v. Aaron, *58 U.S. 1 (1958).

The judgment of the District Court is affirmed in part, reversed

in part, and remanded for proceedings not inconsistent with this

notin.

APPENDIX

After this case was argued in this court, a study made under

the auspices of Vanderbilt University and now published in the

nine volume ASSESSMENT OF CURRENT KNOWLEDGE ABOUT THE

EFFECTIVENESS OF SCHOOL DESEGREGATION STRATEGIES (Vander-

—_—~

bilt Univ. 1981) [hereinafter cited as DESEGREGATION

STRATEGIES] was released. The Vanderbilt project was financed

with federal funds and incorporates the work of nationally pro-

minent experts in the school desegregation field. It concludes

that desegregation raises the level of black achievement, with

specific findings on the Nashville schools, and emphasizes the

importance of including primary grades in a desegregation plan.

Significant findings include the following:

1. **It seems reasonably clear that minority children who

attend school with white children perform better on stan-

dardized achievement tests than do children who attend

segregated schools.’ 2 DesEGREGATION STRATEGIES at 33.

See also Crain & Mahard, Desegregation and Black

Achievement: A Reivew of the Research, 42 Law & Con.

TEMP. Pros. 17 (Summer 1978). For example, a study of

Nashville elementary schools revealed that black children’s

test scores rose an average of .28 when placed in

desegregated schools. This amounts to a little over 3/10ths

of a grade level and was termed a ‘“‘sizeable’’ achievement

gain. 5 DESEGREGATION STRATEGIES at 184. It also is

estimated that desegregation tends to raise black achieve-

ment by approximately four IQ points.

2. To boost achievement, desegregation must occur in

the early grades.

The findings that strong effects of desegregation

occur in the earliest grades are a strong argument

against delaying desegregation past grade one. Only a

few school systems leave the early primary grades

segregated; the most significant is Dallas. Our

analysis indicates that this is a very unfortunate

policy. Many school systems leave kindergarten

students segregated. This analysis suggests it would be

academically very beneficial to include minority

kindergarten students in a desegregation plan.

= A-2 <

Id. at 185.

The study concludes that desegregation ‘‘creates a sudden

burst of achievement growth’’ during the early grades and

that after that time, desegregated students maintain but do

not increase this higher level of achievement. The study

also notes, ‘‘[N]o desegregation plan where elementary

grades are excluded can effectively reduce racial isolation.

Moreover, the research suggests that desegregation at early

grades holds the greatest promise for improving race rela-

tions, increasing minority achievement and ultimately

reducing racial prejudice.’’ Jd. at 70.

3. Racial proportions in the school are related to

achievement. The study suggests that minority students

score highcr when they are in predominantly anglo

classrooms; however, it is important that more than a

small number of minority students attend majority

schools. Where minority students comprise less than i5%

of the school’s population, little mixing of races occurs,

and where blacks make up less than 20% of a high school’s

population, black male achievement suffers. Jd. at 115,

173, 186 and 196.

4. Where a school district is organized on a county-wide

basis, as is the Nashville-Davidson County school system,

*‘white flight’? has much less long-term impact on the

schools, /d. at 47.

A 1981 study by the National Assessment of Educational Pro-

gress, a federally sponsored group that annually tests 9-, 13- and

17-year-olds, reports that black achievement scores have in-

creased significantly over the past 10 years. In an assessment of

reading performance, the study found that while black students

still scored below white students, they had narrowed the gap

considerably. For example, 9-year-old black students were 14.2

percentage points below the national norm in 1971 in literal

= A-2§

comprehension, but in 1980 black students were only 7.1

percentage points below the national average. This result was

achieved in the fact of an overall achievement gain for ail tested

students. Black students scored achievement gains at all three

age groups, although increases were more significant for the

9-and 13-year-olds than for the 17-year-olds.

This black achievement gain extends from reading into other

disciplines, according to Burton & Jones, Recent Trends in

Achievement Levels of Black/White Youth, EDUCATIONAL

RESEARCHER (April 1982). That article analyzes tests ad-

ministered over five subject areas form 1969 to 1980 by the Na-

tional Assessment of Educationa! Progress and concludes:

For the learning areas other than writing, the average dif-

ference between white and black 9-year-olds has shrunk

from about 17 percentage points to 10 or 11 over the 1970s.

At age 13 (Figure 5) methematics is relatively the most dif-

ficult area for black students. For the areas other than

mathematics, means for 13-year-old black students were 17

to 18 percentage points below those for white students in

1970, but only 12 to 13 points below by 1980. A decrease in

the difference between white and black students over time

is evidence at both ages.

Typically, when achievement for white students has declined,

that for black students has declined less; when whites have

improved, blacks have improved more. The difference be-

tween the races has decreased at both ages in mathematics,

science, reading, writing and social studies.

Id. at 11-12, 14.

Neither the National Assessment project nor authors Burton

and Jones go so far as directly to attribute black achievement

gains to desegregation. It is stated, however, that the findings

—_—~

*‘cast doubt on judgments that these social programs have failed.’’

Burton and Jones, supra at 10.

These recent studies, published after the District Judge’s deci-

sion, undercut his finding that the black-white achievement gap

has narrowed only ‘“‘slightly’’ and that improvement had

plateaued in 1975. See 492 F. Supp. at 190-91 n. 46. On the con-

trary, the impact of these studies is that desegregation raises the

level of black achievement.

CELEBREzzE, J., concurring in part and dissenting in part.

I concur in the majority’s decision to affirm the educational

components of the district court’s plan: the establishment of

remediation programs, the creation of a magnet school at West

End Junior High School, and the development of an Afro-

American studies program. | disagree, however, with my

distinguished colleagues and the portion of the decision that

reverses the district court’s pupil assignment plans. After a

careful reading of the record in this case, I believe that the

Davidson County community, the board of education, and the

district judge are making significant progress towards affording

a constitutionally acceptable educational system and that this

court shouid allow the local community and federal court to

proceed with their innovations and programs. In my view, the

district court did not make clearly erroneous findings of fact

and did not abuse its discretion in forming its remedy.

This appeal is part of a desegregation case which has spanned

a generation and raises issues concerning the breadth of the

district court’s discretion and the scope of this court’s review. A

brief examination of the district court’s conclusions is,

therefore, necessary.

—_—s

In 1971, after sixteen years of litigation, the district court

adopted a comprehensive desegregation plan which required an

**ideal student ratio’’ of 15 to 35 percent black students in each

school and ordered substantial additional busing for the 1971-72

academic year. This court affirmed the 1971 order, reasoning

that the decision was within the discretion of the district court.

Kelley v. Metropolitan County Board of Education, 463 F.2d

732 (6th Cir. 1972). The litigation continued intermittently

through the 1970’s and, in 1979, the district court ordered the

parties to reconsider the 1971 desegregation plan in light of the

disparate busing burdens, the need to expand the georgraphic

scope of the remedy, and changes in the racial composition of

and distribution in the community.

This district court held extensive hearings concerning the ef-

fectiveness of the 1971 remedy. The school board established a

citizens’ advisory panel and a planning team which included

outside consultants; after a series of public meetings, the board

proposed a new desegregation plan. The plaintiffs responded

with objections, recommendations, and suggestions for the

district court. The district court heard expert testimony and

considered various studies concerning test scores, transporta-

tion burdens, and white flight, as well as the social, economic,

and educational costs of competing desegregation plans.

In evaluating the possible desegregation remedies, the district

court made extensive findings of fact. The court found that the

Nashville and Davidson County school system had experienced

significant white flight under the 1971 busing order.' The court

further found that white flight was expected to continue so that

* The extent of white flight under the 1971 busing remedy has ap-

parently been substantial. In June, 1971, 66,393 white students attended

Metropolitan Nashville schools; in June, 1979, the number had drop-

ped to 44,295. Based on several empirical studies, the district court

concluded that the decline was, at least in part, the result of white

flight and the resegregation from the 1971 busing order. 492 F. Supp.

at 189-90; 479 F. Supp. at 122-123.

—_Y

25 to 30 percent of the county’s clementary school children

would be in private schools vy the middle or late 1980’s. It em-

phasized that the flight stemmed largely from the public’s

perception that the system’s educational quality was poor. Sec-

ond, the court found that although test scores for black and

white pupils had improved under the 1971 plan, the gap between

the scores of the two groups had remained constant. Third, the

district court found that the school board’s proposed desegrega-

tion plan placed a disparate burden on black children, especially

those in the early elementary grades, by requiring that black

children be bused in numbers disproportionate to their share of

the population. Fourth, the district court found that extensive

busing plans would have substantial social, economic, and

educational costs. 492 F. Supp. at 189-92; 479 F. Supp. at

122-23.

Based on these findings, the district court outlined specific

guidelines for a new desegregation plan for the county. Initially,

the court extended the geographic reach of the plan to include

the entire county.’ It ordered the school board to send children

in grades K to 4 to neighborhood schools, maximizing the

desegregation within this limitation.’ It ordered that in grades 5

? Because of the vast distances in Davidson County, the district

court limited the 1971 busing remedy to the densely populated core of

plementation of an effective desegregation remedy, the district court

ordered the school board in 1979 to devise a new plan which extended

the geographic scope of the busing plan. 479 F. Supp. at 122-23.

* In deciding that children in grades K to 4 should go to

neighborhood schools, the district court noted that ‘‘an objection to

transportation of students may have validity when the time or distance

of travel is so great as to either risk the health of the children or

significantly impinge on the educational process.’’ Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 30-31 (1971).

The district court relied on its detailed findings of fact and concluded

that neighborhood schools were necessary for children in grades K to

4.

= A-39 <=

to 8, the objective should be a minimum presence of 15 percent

of either race in each school.‘ In addition, the district court

outlined various changes in curriculum, staff, and programs for

the Nasvhille school system.

I believe that the majority opinion does not adquately address

the district court’s findings of fact. With regard to factual ques-

tions in desegregation cases, the question on review is whether

the findings of fact are clearly erroneous. Fed. R. Civ. P. 52(a).

See Dayton Board of Education v. Brinkman, 443 U.S. 5746, 534

n.8 (1979) (Dayton II). This court may not reverse findings of

fact unless it is left with the firm conviction that a mistake has

been made. Alexander v. Youngstown Board of Education, 675

F.2d 787, 795-96 (6th Cir. 1982). See, e.g., Reed v. Rhodes, 607

F.2d 714, 717 (6th Cir. 1979), cert. denied, 445 U.S. 935 (1980);

Penick v. Columbus Board of Education, 583 F.2d 787, 789,

798 (6th Cir. 1978), aff'd, 443 U.S. 449 (1979). This court may

not deviate from that standard when it addresses factual find-

ings with which it is vaguely dissatisfied. See Dayton II, 443

U.S. at 418.

* The district court observed that:

The selection of 15 percent is arbitrary, as is any other number

which may be chosen. Preparation of students to live in a

pluralistic society makes a biracial, intercultural experience

highly desirable. However, it was not the intent of Brown and its

progeny to require blacks always to be in the minority; nor

should these precedents have been read to require assimilation or

amalgamation. It is not undemocratic, nor does it violate equal

protection of the laws to have a system that allows for recogni-

tion of and respect for differences in our society. A rigid

adherence to racial ratios premised upon the social goal of

assimilation, which in the process demeans, disminishes, or

benignly neglects cultural and ethnic pride as well as differences,

is not only constitutionally unrequired, but socially undesirable.

492 F. Supp. at 193.

—_

The majority opinion does not subject the district court’s find-

ings concerning disparate busing burdens on black children, loss

of community support, heavy economic expenses, and signifi-

cant educational costs under the 1971 plan to careful scrutiny to

determine whether they are clearly erroneous. For example, the

majority requires the district court to include children in grades

K to 4 in its busing plan unless inclusion would ‘‘risk the health

of the children or significantly impinge on the educational pro-

cess.’ Swann, 402 U.S. at 30-31. The district court, however,

did make findings concerning the educational effects of the

remedy on young school children and expressly noted the

Swann exception.’ In addition, rather than evaluate the findings

concerning white flight and its pertinence to the district court’s

choice of remedy, see notes 1-2, supra, the majority simply re-

jects the notion that the threat of flight is a valid reason for fail-

ing to adopt any desegregation plan, a question not presented

here.*

* 492 F. Supp. at 189-92. See note 3, and accompanying text, supra.

* The threat of white flight may not, of course, be the basis for

obstructing a desegregation remedy once a constitutional violation has

been found. See, e.g., Monroe v. Board of Commissioners, 391 U.S.

450, 459 (1968). The concern for white flight in cases where a Swann

remedy has been in operation for some time, as here, does not reflect

an attempt to defeat desegregation efforts, but is considered so that

the plan will be effective in the long run.

United States v. Scotland Neck City Board of Education, 407 U.S.

484, 491 (1972), indicates that the risk of white flight does not permit a

school board to avoid the responsibility of eliminating a dual school

system. A district court, however, may consider such a risk in selecting

the most desirable plan from among several constitutionally permissi-

ble desegregation remedies. In Stout v. Jefferson County Board of

Education, $37 F.2d 800 (Sth Cir. 1976), the Fifth Circuit, in examin-

ing the application of Scotland Neck, stated:

We have found no authority declaring that in choosing be-

tween various permissible plans a chancellor may not elect to

minimize white boycotts. The teaching of Scotland Neck is that

he may not refuse to adopt a permissible plan and elect or con-

fect one which preserves a dual system because of such fears.

The true issue, then, is whether the plan adopted by the court

below was, given the circumstances, a permissible one.

— A-31 —

As this court has been previously admonished by the Supreme

Court:

[o}]n appeal, the task of a court of appeals is defined with

relative clarity; it is confined by law and precedent, just as

are those of the district courts and of this Court. If it con-

cludes that the findings of the district court are clearly er-

roneous, it may set them aside snader Fed. Rule Civ. Proc.

52(a). If it decides that the district court has misapprehended

the law, it may accept that court’s findings of fact but

reverse its judgment because of legal errors. Here,

however, as we conceive the situation, the Court of Ap-

peals did neither. It was vaguely dissatisfied with the

limited character of the remedy which the district court

had afforded plaintiffs, and proceeded to institute a far

more sweeping one of its own, without in any way upset-

ting the district court’s findings of fact or reversing its con-

clusions of law. Dayton I, 433 U.S. at 417-18.

After carefully examining the record and extensive findings of

fact in this case, especially those concerning population shifts,

Id. at 802. In this case, the district court evaluated the risk of white

flight in determining the scope of its busing remedy, not in determin-

ing whether to afford a remedy at all. These are entirely separate ques-

tions. Other courts have held that the threat of flight is a proper con-

sideration in framing a peri..issible desegregation plan. See Johnson v.

Board of Education of Chicago, 604 F.2d 504, 517 (7th Cir. 1979),

vacated for consolidation, ___. U.S. ____ (1982) (a school board may

‘consider the probability of white flight in formulating a remedial

plan to prevent de facto segregation in public schools’); Parent Ass’n

of Andrew Jackson High School v. Ambach, $98 F.2d 705, 719 (2nd

Cir. 1979); Higgins v. Board of Education of the City of Grand

Rapids, 508 F.2d 779, 794 (6th Cir. 1974).

— A-32 —

educational quality, transportation burdens, and social costs, I

am not left with conviction that the district court’s factual find-

ings are clearly erroneous.

Furthermore, I believe that the majority has erred in its

review of the district court’s desegregation remedy. When

reviewing a district court’s desegregation remedy, we are limited

to determining whether the district court abused its discretion.’

See Milliken v. Bradley, 433 U.S. 267, 281 (1977); Swann, 402

U.S. at 15, 25, 27, 30. The Supreme Court has identified the

standard for review as the traditional abuse of discretion

measure applied to equitable decrees: in a desegregation case,

**the scope of a district court’s equitable power to remedy past

wrongs is broad, for breadth and flexibility are inherent in

equitable decrees.’’ Swann, 402 U.S. at 15. This discretion com-

ports with the policy of leaving the administration of desegrega-

tion plans with the district courts.* ‘‘Because of their proximity

to local conditions and the possible need for further hearings,

the courts which originally heard these [desegregation] cases can

best perform this judicial appraisal.’’ Brown //, 349 U.S. at

299-300.

’ The courts of appeals have held that the standard of review in a

desegregation case is whether the district court abused its discretion.

E.g., United States v. Board of School Comm’rs of Indianapolis, 637

F.2d 1101, 1116 (7th Cir.), cert. denied, 449 U.S. 838 (1980); Evans v.

Buchanan, 582 F.2d 750, 760 (3rd Cir. 1978) (en banc), cert. denied,

446 U.S. 923 (1980); Stout v. Jefferson County Board of Education,

489 F.2d 97, 98 (Sth Cir. 1974) (per curiam); Kelly v. Guinn, 456 F.2d

99, 110 (9th Cir. 1972), cert. denied, 419 U.S. 919 (1979). See also Ar-

thur v. Nyquist, 636 F.2d 905, 906 (2nd Cir. 1981).

* This court may reverse a district court in its formulation of a

desegregation remedy only when it has abused its discretion, because

the district court is in the best position to weigh the competing

— A-33 —

I disagree with the majority’s view of the district court’s

discretion. The majority implies that the district court is

obligated to employ a racial ratio which matches the racial com-

position of the Davidson County school system. My reading of

Swann is that the district court may adopt such a ratio as part of

a desegregation remedy. The Constitution does not require the

district court to use a ratio which mirrors the racial makeup of

the community. Swann, 402 U.S. at 23-24. Rather, the district

court may use its discretion to determine the proper scope of a

busing plan in a desegregation remedy.’

The majority’s treatment of the pupil assignment component

of the desegregation plan is not consistent with the limited scope

of our review. The district court did use in 1971, as a “‘starting

point,”’ the approximate racial ratio of the school district as an

objective for its busing plan. The district court in 1980 reviewed

made equity the instrument for nice adjustment and reconcilia-

tion between the public interest and private needs as well as be-

tween competing private claims.

Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944), cited in Brown II,

349 U.S. at 300, and Swann, 402 U.S. at 15. See Lemon v. Kurtzman,

411 U.S. 192, 200 (1972) (‘‘{ijn shaping equitable decrees, the trial

on Aft

the effectiveness of the 1971 order. After hearing and evaluating

a broad range of evidence concerning white flight, test scores,

transportation burdens, costs, education theory, and other fac-

tors, the district court changed the busing objective to a

minimum presence of 15 percent of either race.

The majority opinion seems to recognize that there is no con-

stitutional right to any particular racial balance in schools. See

Pasadena City Board of Education v. Spangler, 427 U.S. 424,

434 (1976) (no ‘‘substantive constitutional right to a particular

degree of racial balance of mixing’’ exists); Swann, 402 U.S. at

24. Yet the majority’s requirement that the district court employ

a ratio of 68 percent white and 32 percent black (plus or minus

15 percent) appears to be an attempt to establish such a balance.

I fear that the precise racial mixture required by the majority on

remand will, as a practical matter, create such a right. See

Dayton Board of Education v. Brinkman, 433 U.S. 406, 418

(1977) (Dayton 1).

Moreover, I disagree with the majority’s treatment of the

pupil assignment component for grades K to 4. The majority re-

jects the district court’s decision on the premise that it is re-

quired to desegregate all schools and all grades within the school

system. I do not believe that the district court’s discretion is so

narrow. The cases on which the majority relies for its proposi-

tion do not support its conclusion.'* In Haycraft v. Board of —

'* The majority’s reliance on Tasby v. Estes, 572 F.2d 1010 (Sth

Cir. 1978), cert. dismissed as improvidently granted, 444 U.

adequate .

at 1014. Second, the Fifth Circuit has expressly ruled that a district

court “‘may devise a constituiional plan that temporarily or per-

manently leaves one or more racially identifiable elementary schools,

or that omits some of the carlier grades from the busing probram.”’

Lee v. Macon County Board of Education, 616 F.2d 805, 812 (Sth Cir.

— A-35 —

Education of Jefferson City, 585 F.2d 803 (6th Cir. 1978), cert.

denied, 443 U.S. 415 (1979), this court reversed a district court

which excluded first grade students from a busing plan. In

Haycraft, the district court made no factual findings; instead, it

concluded ‘‘as a matter of law’’ that first grade students without

kindergarten experience would risk failure if they rode on a bus

to school. /d. at 804. Here, the district court made extensive fac-

tual findings, supported by the record, and grounded his deci-

sion on the risk that the entire desegregation remedy might fail

in the long run if very young children were included in the bus-

ing program. 492 F. Supp. at 189-93. Lee v. Macon County

Board of Education, 616 F .2d 805 (Sth Cir. 1980), does not hold

that every grade in a school system must be included in a

desegregation remedy. In fact, the Fifth Circuit reasons that

*“*[flocusing on the target of a unitary system rather than a

systemwide racial balance, the court may devise a constitutional

plan that temporarily or permanently leaves one or more racially

identifiable elementary schools, or that omits some of the earlier

grades from the busing programs.”’ Jd. at 812. See generally

Swann, 402 U.S. at 24 (‘“‘[t}he constitutional command to

desegregate schools does not mean that every school in every

community must always reflect the racial composition of the

school system as a whole’’).

Finally, the majority fails to address directly the issue of the

effectiveness of the desegregation plan.'' ‘“The measure of any

desegregation plan is its effectiveness.’’ Davis v. School

1980). Third, the Supreme Court’s decision to dismiss certiorari as im-

providently granted provides no indication of the Court's view of the

merits and gives the Estes decision no precedential power binding on

this court. See Griffin v. United States, 336 U.S. 704, 716 (1958);

United States v. Carver, 260 U.S. 482, 490 (1923).

'' The Supreme Court's opinicn in Washington v. Seattle School

District No. 1, U.S. (1982), does not address the issues raised

in this appeal. In Washington, the Court found that a state referen-

dum which prohibits mandatory busing of school children for pur-

poses of integration violates the equal protection clause of the four-

ye

Comm'rs of Mobile, 402 U.S. 33, 37 (1971). District court

decrees must ultimately be evaluated on the basis of their effec-

tiveness. See Green v. County School Board, 391 U.S. 430, 439

(1968) (desegregation remedies must be drawn ‘‘in light of the

circumstances present and the options available’’); Davis, 402

U.S. at 37 (desegregation remedies must ‘“‘takje] into account

the practicalities of the situation’’). An effective desegregation

plan is one which will establish a unitary school system: ‘‘The

obligation of the district courts . . . is to assess the effectiveness

of a proposed plan in achieving desegregation.’’ Green, 391

U.S. at 439. Many factors should be considered in dete: mining

whether a particular plan will be effective in establishing a

unitary school system. These factors include population shifts,'?

transportation burdens, and the social, economic, and educa-

tional costs of competing desegregation plans. The precise

weight to be acorded to each factor should be left to the district

court’s discretion. In my opinion, the district court has properly

identified and weighed these various factors and has selected a

desegregation remedy which is likely to move Davidson County

teenth amendment. Washington concerns the structure of the state

and local political process, rather than the breadth of a district court’s

discretion in shaping a desegregation decree: ‘‘[i}t is the State’s race-

conscious restructuring of its decisionmaking process that is imper-

missible.”” Slip Op., at 28 n.29 _.. ~-U.S. ___, __._- 0.29. The

Supreme Court has recently reiterated the policy of encouraging flex-

|

il

il

it

uy

: Slip

at 14, quoting Crawford v. Board of Education, .7 Cal.3d 280, 309

(Cal. 1976), _. U.S. ____ (1982). See Slip Op. at 2 n.3, 9 n.15.

'? See notes | and 6 and accompanying text, supra.

——<

towards a unitary school system.'’ if lasting solutions for the

problems of desegregation are to be found, we must allow the

district courts to shape remedies which reflect the practical prob-

lems facing a school system and which have a realistic chance of

achieving the goals of Brown I.

A careful reading of the entire record, and my experience

with the previous appeals filed in this litigation, leads me to

believe that Judge Wiseman has addressed a difficult problem

and is, together with the local community, making a sincere ef-

fort to bring a degree of finality to this longstanding issue. I

believe that the district court’s plan complies with the re-

quirements of Brown I and Swann. The district court’s findings

of fact are not clearly erroneous and it has not abused its broad

discretion in fashioning the flexible and innovative plan

presented to this court. Accordingly, I would affirm the judg-

ment of the district court.

'* The majority relies on Tasby v. Estes, 572 F.2d 1010 (Sth Cir.

1978), cert. dismissed as improvidently granizd, 444 U.S. 437 (1980),

asserting that the dismissal of certiorari as improvidently granted is an

indication that the Supreme Court supports the majority’s interpreta-

tion of Swann. Although the Court’s disposition allows no such in-

ference to be drawn, see note 10, supra, Justice Powell’s dissent, joined

by Justices Rehnquist and Stewart, is of interest. The dissent em-

phasizes the need for flexibility and practicality in reviewing

desegregation decrees.

— A-38 —

APPENDIX B

Robert W. Kelley, Individually and

representative of the class

Vv.

Metropolitan County Board of Education of Nashville

and Davidson County, Tennessee, et al.

Henry C. Maxwell, Jr., Individually

and representative of the class

Vv.

Metropolitan County Board of Education of Nashville

and Davidson County, Tennessee, et al.

Civ. A. Nos. 2094, 2956.

United States District Court,

M. D. Tennessee,

Nashville Division.

Aug. 27, 1979.

(Rendered Orally Aug. 24, 1979)

In desegregation action, the District Court, Wiseman, J.,

held that: (1) given the choice between further delay and im-

plementation of desegregation plan or a haphazardly hurried

piecemeal implementation of a portion of the program, court

would permit additional year’s delay; (2) board’s transfer

policy, although facially neutral, was having a negative impact;

(3) it would violate due process to hold schoo! board members

in contempt for the implementation of the school transfer

policy where the prior orders of the court had not addressed the

matter with sufficient specificity; (4) school board would be re-

quired to review transfer applications and determine this validi-

—_—

ty before granting them; and (5) the application of any senior to

be retransferred to the school which he attended as a junior

could be granted.

Order accordingly.

1. Schools (key) 13(20)

Court facing the choices of a further year’s delay in im-

plementing a portion of school desegregation plan or a

haphazardly hurried construction of partial patches of the plan

which would probably worsen the situation would permit the

proposed zones of the school board to be continued for use for

another year.

2. Schools (key) 13(6)

School board policy for subject matter-program transfers

from one school to another, although racially neutral on its

face, had a negative impact on desegregation efforts by the

manner in which it was implemented and the inherent potential

for abuse in its conceptualization and thus violated spirit of

court’s integration order.

3. Constitutional Law (key) 273

It would violate due process to hold school board members in

contempt for implementation of transfer plan where court’s

desegregation orders did not address the matter with the re-

quisite degree of specificity. U.S.C.A. Const. Amends. 5, 14.

4. Schools (key) 13(20)

Where court had determined that school board’s transfer

policy which was facially neutral was having a negative impact

on desegregation efforts, court would order school board to

submit a revision of the transfer policy designed to provide

methods by which transfer applications could be objectively

—_e

judged, prior to approval, to determine their validity as to the

educational objectives of the student; court would require

board to review each of the transfer applications which had

previously been approved, as well as those currently pending

and to make written findings as to the validity of each request.

5. Schools (key) 13(20)

Schiool board would be permitted to grant the application of

any senior who requested transfer from a school to which he

had been zoned to the high school to which he attended as a

junior and such transfers would be exempted from limitations

on other transfers set forth in court’s desegregation orders.

Avon N. Williams, Jr., Richard Dinkins, Nashville, Tenn.,

for plaintiffs.

William R. Willis, Jr., Marian F. Harrison, Nashville, Tenn.,

for defendants.

MEMORANDUM

WISEMAN, District Judge.

This twenty-four-year-old case is before this Court upon a

series of motions and petitions by both the plaintiffs and defen-

dants. The various motions, petitions, and pending matters and

dates of filing are as follows:'

1. March, 17, 1972: Defendants’ request for approval of con-

struction of White’s Creek Comprehensive High School, includ-

ed in march 17, 1972, report to this Court and merged into July

24, 1978, petition, listed infra.

' Throughout the pendency of this case until and during the recent

hearings, the parties have filed various motions relating to discovery

matters. The Court has ruled on substantially all discovery issues as

they have arisen. Such matters are, therefore, not listed above as pen-

ding motions.

— A-4l —

2. May 30, 1973: Petition by defendants for approval of long

range plan, dealing with twenty-six building projects. This peti-

tion has essentially merged into more recent pleadings.’

3. May 31, 1973: Defendants’ petition for approval of por-

tables for use in kindergartens. No action was taken by the

Court in regard to this petition and the defendants subsequently

implemented the proposed plan.

4. October 14, 1976: Defendants’ motion to amend their

May 30, 1973, petition for approval of long range plan. Such

motion proposed a new location for the Goodlettsville-Madison

High School and asked the Court for approval of construction

of that school.

5. December 27, 1976: Plaintiffs’ petition for contempt and

further relief. Plaintiffs therein moved that defendants be held

in contempt for their plan to construct the Goodlettsville-

Madison High School, the expansion of Hillsboro, Bellevue,

Hillwood, Glencliff, Stratford, and Maplewood high schools,

the use of portables for kindergartens, the establishment of the

Cole Annex for Cole Elementary School grades five and six at

the old Turner School, and the proposed closing of Pearl High

School. The Board of Education subsequently rejected the pro-

posal to close Pearl. In this petition, plaintiffs also asked that

the Court modify its 1971 order to equalize the burden placed

on black and white children as a result of bussing, to compel

defendants to maintain a black-white student ratio, and to force

defendants to upgrade Pearl High School and inner city

schools. Finally, plaintiffs requested attorneys’ fees.’

? Subsequent to the May 30, 1973, petition, defendants have filed

various letters to inform the Court of their plans and actions taken

re!ating to the projects detailed in the petition.

* Plaintiffs had previously filed motions for attorneys’ fees on

February 8, 1974, and April 11, 1975, as well as a motion to dispose of

those motions, filed on October 16, 1975.

—_—~

6. July 24, 1978: Defendants’ petition for approval of school

attendance zones for 1978-79, as amended August 18, 1978. In

this petition, defendants requested court approval of the expan-

sion of Hillsboro, Hillwood, Overton, Meplewood, Glencliff,

and Stratford into comprehensive high schools with grades nine

through twelve, the addition of grade nine to Cohn and Pearl

high schools and to McGavock Comprehensive High School,

the opening of the Whites Creek Comprehensive High School to

include grades nine through twelve, the elimination of one grade

schools, the changes in zoning to alleviate overcrowding and to

close inadequate buildings, the plan to develop an inner city

comprehensive high school, and the establishment of junior

high schools including grades seven and eight with feeder

systems into the high schools.‘

7. August 28, 1978: Plaintiffs’ amendment to petition for

contempt and for further relief, previously filed on December

27, 1976, and discussed supra. Plaintiffs therein allege that con-

struction and expansion of schools in predominantly white

areas, and the closure of formerly black schools in the inner

city, the institution of optional transfer programs, discussed in-

fra, and the failure of defendants to increase the black-white

faculty ratio are violative of the 1971 court order.

* On May 29, 1979, defendants filed an amendment to the list of

capital improvements and to proposed attendance zones, in which

plaintiffs deleted from the May 30, 1973, petition a request for ap-

proval for an Interstate 40 West comprehensive high school, and

substituting a plan for an inner city comprehensive high school, and

modified the proposals relating to Antioch, Dupont, and Bellevue

high schools. On July 6, 1979, the Court granted the defendants’

amendment to their request for approval of certain building projects,

in which defendants withdrew their request for approval of construc-

tion of Antioch High School, the Glengarry Elementary School pro-

ject, the Jordonia-Wade Elementary School project, and omitted the

projects proposed for Dupont and Bellevue high schools.

— A43 —

8. August 7, 1979: Plaintiffs’ motion for contempt, which

charged that defendants had violated the Court’s order

directing defendants to terminate the optional transfer plan,

discussed infra.

In pretrial conferences held with all parties, the Court divided

the matters into four phases:

Phase 1: Historical recapitulation of school integration since the

order of 1971; consideration of the Long Range Plan of the

school board; consideration of the proposed zoning for school

year 1978—79 (now moot since the year 1979—80 was only one

month away at the time of the hearing); consideration of the

Board’s request to proceed with certain construction projects.

Phase 2: Consideration of matters relating to racial mix of

staff and faculty.

Phase 3: Consideration of all petitions for contempt.

Phase 4: The matter of attorneys’ fees.

The Phase 1 hearings began on June 26, 1979, and continued

on June 27, 28, 29, 30, 1979, and July 2, 3, 5, and 6, 1979. The

proof on Phase | overlapped substantially with the matters of

Phase 3.

At the conclusion of this hearing, the Court directed the

defendant, Board of Education, to reconsider its entire plan

assuming no parameters heretofore ordered by the Court, but

with the primary objective of the achievement of a unitary

school system for the entirety of Davidson County. In addition,

the Board was instructed to consider: maximum utilization of

existing buildings (specifically including those in the inner city);

economic factors of transportation costs and fuel economy;

time and distance involved in transportation; and any other fac-

tors which would impact upon the ultimate objective of a quali-

ty educational opportunity for all children in Davidson County

through a unitary school system.

as Svbh ue

The defendant Board has advised the Court that the forego-

ing request of the Court is a massive undertaking which, if ap-

proved by the Court, will represent a substantial redrawing of

zone lines and transfer of numerous students.

From the proof adduced on Phase | of the hearings, the

Court finds the following:

1. The perimeter line drawn by the Court in 1971, by which

no requirement of either transportation or attempts at racial

balance was mandated outside the perimeter, has encouraged

white flight to the suburbs and to those school zones unaffected

by the 1971 order. The combined effect of the order and the

flight thercirom, either to suburban public schools or to private

schools, has been:

a) that inner city schools have become progressively

resegregated;’

* The most dramatic example of such resegregation can be seen in

enrollment statistics for Pearl High School for the school years

1970—71 through the projections for 1979—80, compiled in Exhibit

87, as follows:

Black Students/

Percentage W ite Total

Black Students Students

1970-71 1212 (100.0) 0 1212

1971-72 599 ( 62.9) 353 952

1972-73 603 ( 66.4) 305 908

1973-74 594 ( 68.4) 274 868

1974-75 558 ( 74.7) 188 746

1975-76 551 ( 72.5) 208 759

1976-77 551 ( 75.8) 175 726

1977-78 492 ( 83.1) 100 $92

1978-79* 577 ( 96.6) 20 597

Projection

1979-80 532 ( 96.6) . 19 551

*%h Grade Added

— A-45 —

b) that the projected ideal ratio of 15 percent to 35 per-

cent black population in each school has become increas-

ingly more difficult to meet;

c) that the school facilities outside the Court-ordered

perimeter have become increasingly inadequate to accom-

modate the growing student bodies.

2. The resegregation, resulting, at least in part, from the

nonetheless good faith efforts of the School Board in the im-

plementation of the Court’s order, amounts to a de jure

segregation.

Recognition of the above results impels a complete reex-

amination of the remedy fashioned in 1971. As the United

States Supreme Court has said,

The obligation of the district courts, as it always has

been, is to assess the effectiveness of a proposed plan in

achieving desegregation. There is no universal answer to

complex problems of desegregation; there is obviously no

one plan that will do the job in every case. The matter must

be assessed in light of the circumstances present and the

options available in each instance. . .. Moreover, whatever

plan is adopted will require evaluation in practice, and the

court should retain jurisdiction until it is clear that staie-

imposed segregation has been completely removed. . . .

Green v. School Bd. of New Kent County, 391 U.S. 430, 439, 88

S.Ct. 1689, 1695 20 L.Ed.2d 716, 724 (1968). See also Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 19-21, 91

S.Ct. 1267, 1278—79, 28 L.Ed.2d 554, 569—70 (1971).

{1} Although any delay in achieving an adequate remedy to a

situation in which Davidson County children are deprived of

constitutional rights is distasteful, the alternatives and the most

appropriate remedy among such alternatives have not yet been

the subject of proof in this case at this time. The Court is

therefore left with the equally untenable choices of a further

year’s delay or a haphazardly hurried construction of partial

patches which would undoubtedly worsen the situation. The

problem faced by the parties in this suit, by this Court, and by

the citizens of this county is of paramount importance. It

deserves the best efforts at resolution that can be mustered by

everyone concerned. It is a subject upon which the best minds

available to the parties, including input from the many well-

motivated, thoughtful citizens of the community, should be

sought and received. The 1979-80 school year is less than a week

away. Massive restructuring of zones at this time would be

chaotic. For all of these reasons, delay, however undesirable,

becomes the only option available to the Court. The proposed

zones of the Board for the year 1978—79 are approved for use in

1979—80. Over the coming year, this Court will hear from the

parties, and invites amicus briefs by groups such as the Citizens

Advisory Committee, Parent-Teacher groups, and any other in-

terested group. The Court encourages such groups to submit

proposals which are designed to achieve a unitary school system

in Davidson County and to provide the best possible educa-

tional opportunity for all of the school children of the county.

The Optional Transfer Policy

In 1978 the School Board adopted a transfer policy which

permitted any student assigned to a non-comprehensive high

school to opt out automatically of such school to a comprehen-

sive high school (Exh. 21). At the July hearings, it became evi-

dent to the Court that this provision had been utilized extensive-

ly by white students assigned to Pearl to escape such assign-

ment. The percentage of automatic options out of Pearl com-

pared to those from other non-comprehensive high schools

leaves no other credible inference.* The effect of this policy

upon the already-established trend toward resegregation at

Pearl was disastrous. From the 1977—78 school year to the

1978—79 year, the black to white ratio went from 83.1 percent

to 96.6 percent (Exh. 87).

* Exhibit 20 itemizes the number of students who transferred to a

comprehensive high school from non-comprehensive high-schoois in

1978-79 under the optional transfer program. Interpolating these

figures to reflect the number of students transferring from Pearl and

other non-comprehensive high schools to comprehensive high schools,

the resulting chart is as follows:

— A-47 —

At the hearings in July, when the foregoing facts became ap-

parent, the Court orally enjoined the Board of Education from

further implementation of this transfer policy. The Court’s

directive from the bench was:

School White Black Other Total

From Pearl 290 21 12 323

to Glencliff 34 0 0 34

to Hillsboro 35 10 2 47

to Hillwood 220 x 10 238

to Overton 1 3 0 4

From Antioch 62 5 0 67

to Glencliff 62 5 0 67

From Apollo Jr 50 l 0 $1

to Glencliff 50 l 0 $1

From Bellevue 8 0 0 x

to Hillsboro 8 0 0 x

From Cohn 66 19 0 85

to Hillsboro 31 14 0 45

to Hillwood 35 5 0 4)

From Madison 47 2 0 49

to Maplewood l 0 0 1

to Whites Creek 46 2 0 48

From Dupont

(Jr. & Sr.) 37 4 0 41

to McGavock 37 4 0 41

From East 10 3 0 13

to Stratford 10 3 0 13

From Goodlettsville 68 5 0 73

to Whites Creek 68 5 0 73

From Joelton 149 0 0 149

to Whites Creek 149 0 0 149

From Neely’s Bend 3 0 0 3

to Whites Creek 3 0 0 3

Total 790 60 12 862°

*Exhibit 20 also reflects that 11 white students transferrred from

Hillsboro to Hillwood. Since those transfers are not from non-

comprehensive schools to comprehensive high schools, they are not

=~ =

I am making this ruling now, Mr. Willis, because as I see

the urgency of the situation that has arisen during the

course of the proceedings, I think I need to do that because

you need to know what I am deciding on in the 1978—1979

[sic]’ school year. I think it is going to take considerable

work by the School Board on this ruling because it is going

to move several hundred students or determine from them

whether or not there is a bona fide reason for program

transfers and in anticipating it on a program transfer basis

rather than an automatic opting out. So, | am telling you

that now, so you have plenty of time to work on it, we will

continue to do that as we can through this hearing. | will

supplement all of this in a written memorandum and give

you a chance for appeal and whatever. When I see

something I need to address in order to be ready for the

1978—1979 [sic] school season, I will address it.

Thereafter, on August 7, 1979, plaintiffs filed a petition for

contempt alleging that the Board had failed to implement in

good faith the Court’s order. This petition was scheduled for

the first order of business at the resumed hearings which began

August 21 and continued through Aug. 24, 1979.

From information provided through discovery, plaintiffs in-

troduced statistical summaries of transfers approved, broken

out by sending school, receiving school, and by race (Exh. 98).

From this exhibit it appears that 326 white students have had

transfers approved from Pearl to other high schools in the

system. Sixteen blacks and twelve persons of other races were

granted transfers from Pearl. All of the transfers from Pearl

were subject matter based. The number of transfers from other

non-comprehensive high school were:

’ The Court erroneously referred to the school year 1978—7S. The

Court, of course, intended to refer to the school year 1979—80.

—

White Black Other

From Joelton 134 0 0

From Cohn 85 25 2

From Antioch 38 l 0

From Dupont Sr. 32 0 0

From Madison 31 3 0

From Goodlettsville 23 8 0

The impact of these transfers upon the racial mix at Pearl was

dramatic. Children assigned to Pearl by applicable residential

zones should have produced a racial mix of:

532 white (52%)

36 other (3%)

461 black (45%)

After the approved transfers were granted, the resulting totals

and percentages were:

206 white (30%)

24 other (4%)

445 black (66%)

Additional transfer requests are pending from Pearl of 78 white,

17 black, and 4 other (Exh. 142). If these transfers are approv-

ed, the white population will be reduced to 22 percent.

The apparent mass exodus of white students from Pearl

under the subject matter transfer raised a serious question in the

Ceurt’s mind as to the extent of monitoring which defendant

Board had exercised in its implementation of the spirit if not the

letter of the Court’s enjoinder from the bench in July. From the

statistical evidence above, the Court found a prima facie case of

contempt to have been made and shifted the burden of going

forward with the evidence to the defendants.

— A-50 —

The School Board explained its procedure in implementing

the court’s order as follows:

1. The School Board was informed at its July 10 meeting of

the Court’s order and the need for modification of the Board’s

policy.

2. The Board at its July 24 meeting rescinded its optional

transfer policy. Dr. Elbert Brooks, Director, Metropolitan

Schools, stated to the Board that ‘‘students who had made these

automatic transfers would be assigned to their original zoned

school but would be permitted to request a transfer in order to

take a particular: program/subject not offered at the student’s

assigned school.’’

3. A form letter was developed and signed by Dr. Brooks

and sent to all students who for the school year 1978—1979 had

been assigned to a non-comprehensive high school under the

“automatic option”’ policy (Exh. 96).

4. A Transfer Committee was established consisting of Mr.

Joe Garrett, Chairman, Pupil Accounting and Transfers, Pupil

Personnel Services; Dr. Cornell Lane, Psychology, Pupil Per-

sonel Serivces (a black member); Mr. Bill Hollingsworth, Atten-

dance, Pupil Personnel Services; and Mr. Dan Covington,

Vocational and Technical Education. A directive was issued by

Dr. Brooks requiring that requests for transfer be forwarded to

the office of Mr. Garrett for review by the Transfer Committee.

After such review the two affected principals and the students

were to be notified.

5. Principal Carnes of Pearl High testified he was informed

at two meetings held with other principals and his district

superintendent that his sole function was to determine if the re-

quested course was available at his school and, if not, to sign off

on the request. This instruction was reiterated by Dr. Brooks in

a phone call after a school board member relayed parent com-

— Asi —

plaints to Dr. Brooks about Mr. Carnes’ handling of transfer re-

quests. Somewhat inconsistently, the testimony also showed

that Mr. Carnes understood and Dr. Brooks also reiterated to

him his responsibility to counsel with the student and parents

concerning such a transfer.

At some point after the transfers began to be requested, the

form for such applications was changed. The material change

was the deletion of an addendum which listed courses taken in

the previous year, grades received, and courses desired this year.

It also required a statement that the program of studies had

been discussed with both the principal and guidance counselor

and an explanation thereof. Finally, it required a selection of a

course not offered at the assigned school and a statement of

how the requested course would be beneficial to the student. No

satisfactory explanation of ‘he changes in the form was offered

by defendants.

Notably after the fact, after the filing of the petition for con-

tempt, Dr. Brooks requirei a comparison of the sub-

ject/program transfers granted with the students preregistration

desires indicated last spring (Exh. 137). This comparison as it

relates to transfers from Pearl reveals the following:

Transfer Requests for Programmatic Reasons Approved by Student Transfer Committee

Nashville Publee Schools

As of August 16, 1979

Course Selections to Fall Course Selections for Transfer

Yall Course Selection Fall Course Seteetion

Not Selected in Spring, Not Selected in Spring. Number

Fall Course Selection But Spring Selection Spring Selection Similar All Courses Selected Spring

Serfing Receiving Same As Spring Not Offered at Sending to Course Offered at in Spring Offered at Schedule

Sehoo! School _—_— Number Approved Selection Sehoot Sending Schoot Sending Schoo! Available

Bwoef?tgs eB wo tft BW 8 Ff BW oT BW oT

Peari Hillsboro 2 c’.) 2 ” 1 s 0 J 1 7 °@ » ° 0 ee a a oe 2

=. (26.5%) (4%)

Semors

Others 2

Black -0

White |

Total i

(22.4%)

Peri j§. Hillwood 5 17 © 0 1 08 6 1B .hUtlCUSKUlUCCUD °° 6@ 6 @ °° w tin a

eee (7%) (22%)

Scan

Others -2

Blact -6

White -@

Total -%

(21.1%)

Pert j§.Giendiff 16 © %© © @ 0 @ C€ @ 0 & o 8 28 g 1 wen 7

ad (Ls) (116%) (7.4%)

Seoon

Others C)

Mach 0

Wht P|

Tou »

-oVvV-

— A-53 —

It is apparent from this summary that 69.4 percent of the

transfers from Pearl to Hillsboro, 90.3 percent of the transfers

from Pearl to Hillwood, and 80 percent of the transfers from

Pearl to Glencliff were facially bona fide under the policy of the

Board and the understanding of Dr. Brooks, discussed infra. In

the case of the one white transfer from Pearl to Glencliff

wherein the fall course selection was not selected in the spring,

and the spring selection is similar to a course offered at the

sending school, and in the case of those 38 transfers to com-

prehensive high schools in which all courses selected in the

spring are offered at Pearl, the transfers are facially suspect.

Dr. Brooks testified that a follow-up interview will be

scheduled with each of these individuals in the suspect category

in an effort to determine the bona fides of the students’ express-

ed desires. Such a monitoring is consonant with the policy

adopted in 1977 by the Board in Section IV(F)(4) of the Student

transfer Policy # 5119: ‘*Special requests having evidence of

course or program selection and changes in courses scheduled

for the purpose of school reassignment will not be approved”’

(emphasis added).

Dr. Brooks further testified that, in his opinion, there is no

reliable way to explore the legitimacy of a subject/program

tranfers except after the fact. In pursuance of this belief, the

chairman of the Transfer Committee developed a three-part

monitoring plan, to which Dr. Brooks added a fourth, by which

the Board will follow the progress of each transfer student in the

requested courses (Exh. 139). Actual enrollment is to be verified

and progress checked at six-week and semesier intervals and

evaluated for renewal of transfer.

The Board’s actions before the filing of the contempt petition

leaves much to be desired. Dr. Brooks admitted in hindsight

that the comparison with spring course selection should have

been examined before the fact rather than after. The Court

— A-54 —

believes that the use of the longer form, changed in midstream

apparently in the interest of time, would have produced infor-

mation for a more objective evaluation cf the bona fide nature

of the application for tranfer.

The statistical evidence of transfers of white students from

Pearl gives rise to the inescapable inference that white students,

given the opportunity to automatically opt out of the Pearl zone

last year, certainly did not wish to return. Perhaps many of

these represent legitimate desires to attend a comprehensive high

school and take courses offered there but not at Pearl. Black

children are not exercising this program/subject opportunity in

nearly the equivalent numbers or percentages, however. This

may be due in part to a corresponding desire by black students

to attend a majority black school; it may be related to the ethnic

pride of the black community in Pearl High as an institution.

For whatever reason, it is a fact evidenced by the admitted

statistics of both 1978—79 and 1979-80 transfers.

The Board has adopted, as a part of its long range plan of

construction of comprehensive high schools, a plan to construct

an inner city comprehensive high school, to be named Pearl,

and at a location either on the present site or at some place in

the North Nashville area. Originally, the Board had gone for-

ward with the recommendation of the staff for the closure of

Pearl, Cohn, and Joelton high schools upon the theory that

none of these locations fit into the judicially imposed directive

to locate comprehensive high schools in areas which would en-

courage and facilitate an integrated school system. Objections

by the black community to the closure of Pearl brought about a

reversal of this decision within the past year.

Another factor which has impinged upon the School Board’s

action in regard to Pearl, as well as other non-comprehensive

high schools in the system, is the requirement by Tennessee law

that all students in grades nine through twelve be given access to

— A-55 —

a comprehensive high school education by 1978 (T.C.A. §§

49-2701 et seq.). As long as Pearl and other non-comprehensive

high schools were either scheduled for closure or had not yet

been converted to a comprehensive facility, the Board felt

obligated to provide the ‘‘automatic option,’’ or at least the

program/subject option on an ‘‘as required’’ basis.

The subject matter/program transfer plan was ‘‘loosely con-

ceptualized and leniently administered.’’ (Testimony of Dr.

Scott). The Board of Education «id not follow it own policies

relating to subject matter transfers, specifically Sections IV(A)

and IV (F) of the Student Transfer Policy # 5119. No preap-

proval screening was done to determine how the requested sub-

ject fit into 2 student’s career objectives. No effort was made to

ascertain if ‘he requested subject correlated with the student’s

career objectives expressed at spring registration or if, in fact,

any change had taken place in those career objectives by the fall

registration. No guidance counseling input was sought or receiv-

ed before approval was granted. Transfer approval was

automatic if the requested course was not offered at the sending

school and if such course was not alread full at the receiving

school. No effort was made to tabulate c. -rse requests and to

determine if a sufficient demand existed to establish the re-

quested course as an offering at the sending school. For in-

stance, in applications to transfer ¢:way from Pearl, there were

at lease 38 requests for horticulture, 18 requests for German

history, 38 requests for media arts, 34 for computer programm-

ing, and 22 for vocational cluster. Suck numbers would seem

sufficient to establish classes in these subjects at Pearl. It would

have been both feasible and reasonable to include a question on

the request for transfer form inquiring whether or not the stu-

dent would be willing to take the requested course at Pearl if it

were offered there after a sufficient expression of interest. Such

an inquiry was not made.

nt En

The looseness of the administration of the subject mat-

ter/program transfer policy and its pro forma approval can

have no other effect than to emasculate any efforts at desegrega-

tion. Zoning becomes a farce under the expressed attitude of

Dr. Brooks as to his understanding of a student’s automatic

right to course offerings at another school. Many of these

courses have no relationship whatsoever to the vocational pro-

gram outlined in T.C.A. §§ 49—2701 et seq. As this Court reads

that law, the variety of vocational offerings in the Metropolitan

School System is not required to be duplicated at every school

nor is every student required by this law to be given access to

every course at every school.

{2] The Court finds that the school board policy for sub-

ject/program transfers, although racially neutral on its face, by

the manner in which it has been implemented and the inherent

potential for abuse in its conceptualization, has a negative im-

pact upon the desegregation efforts of the School Board pur-

suant to the previously issued order cf this Court, and violates

the spirit of the 1971 order, and the spirit of the order of this

Court issued orally on July 2, 1979.

{3] The Court, however, does not find defendants in con-

tempt of the July 2, 1979, order of this Court. In that order, the

Court directed defendants to abolish the optional transfer plan.

It is indisputable that defendants complied with that order. In

the July 2, 1979, order the Court did not deal specifically with

the subject matter/program transfer plan, which was the central

issue of the recent hearing. As the Court of Appeals for the

Sixth Circuit has recently held, ‘‘The notice of a judicial order

upon violation of which a contempt finding may properly be

based is such notice as would clearly tell a reasonable person

what he is required to do or abstain from doing.’’ Reed v.

Cleveland Bd. of Educ., 607 F.2d 749, 752, (6th Cir. 1979). It

would violate due process to hold defendants herein in con-

—_—Y

tempt for their implementation of the subject matter/program

transfer plan when the Court did not address the matter with

that degree of specificity necessary under the standard

hereinabove set out.

[4] It is, therefore, ORDERED that:

1. The School Board reexamine and submit to this Court for

approval by September 7, 1979, a revision of its subject mat-

ter/program transfer policy designed to provide methods by

which transfer applications may be objectively judged prior to

approval, to determine their validity in the educationai objec-

tives of the individual student ©» opposed to a subterfuge on

the part of a student to escape « given school or subvert the

zones established for the purpose of achieving a unitary school

system.

2. The School Board shall conduct a review of each of the

transfer applications that have been heretofore approved as well

as those now pending. Such a review will include an interview

with both the student and parent or guardian. After such

review, the Board will make written findings in each case of the

validity of the request. A procedure will be established to obtain

the recommendation of the principals from the sending and

receiving schools and the judgment of the transfer committee.

Such a procedure will also make provisions for an appeal to the

Director. The decision of the Director, on appeai, shall be in

writing and shall include the supporting reasons for his decision.

Such a review of all previously granted requests will be made by

September 7, 1979. The defendants will give first priority to

reviewing those previously granted requests for transfers out of

Pearl High School.

3. By September 7, 1979, the School Board shall submit to

the Court for its approval recommendations relating to a plan to

establic2 additional classes at Pearl and/or other non-

— A-58 —

comprehensive high schools when the number of requests for

transfers from such sending schools are sufficient to justify the

establishment of such classes. This order does not suggest or re-

quire the conversion of all high schools into comprehensive high

schools. The Board will necessarily make value judgments bet-

ween establishing courses such as computer sciences or voca-

tional clusters, on the one hand, which may not be economically

feasible to develop at, for example, Pearl, and establishing

courses such as German history, horticulture, and guitar, which

would not require mass expenditures if such courses were of-

fered at Pearl.

4. Those students whose requests for transfer have been

heretofore approved will register at and begin attending the

school to which they requested to be transferred. The School

Board shall reassign to the schools to which the students were

originally zoned those students whose requests for transfer the

transfer committee and/or the Directoy finds to be less than

bona fide and reassign to the original zoned school those

students who requested a course subsequently offered at that

school, under paragraph three of this order.

5. Those students whose requests for transfer are pending

and those students who have not yet requested transfer will

register at and attend the school to which they were originally

zoned until such time as the defendants evaluate their requests

for transfer under the revised plan.

6. Pursuant to the order and memorandum, filed August 27,

1979, the defendant Board may grant the application of any

senior (as defined in that memorandum opinion), who requests

transfer from a high school to which he is zoned to the high

school to which he attended as a junior in the year 1978—79.

The Court does not intend to alter the provision of the 1971

Court order, incorporated in Section XI of the Board’s policy §

— A-59 —

5119 (Exh. 21), that allowed students to transfer from ‘‘majori-

ty to minority’’ schools. Such provision has previously

permitted a student, who is a member of the majority race in a

particular school, to transfer automatically, without a program

related reason, to the closest school in which that student would

be a member of the minority race. The Court, however, will not

condone transfers from, for example, Pearl, by white students

in grades nine through eleven, when the effect of such a transfer

will be to convert the majority at the sending school into a

minority, or convert the minority at the receiving into a majori-

ty. The Board shall allow any student to transfer from a school

in which he is presently in a majority to any school in which he

would be at that time a member of a minority, in accordance

with the defendants’ previous majority to minority plan. If,

however, by the operation of the revised transfer plan and/or

the majority to minority plan, the racial mix is altered so that a

student in grades nine through eleven would not be transferring

from a school in which he is presently a member of a majority to

a school in which he would be at that time a member of a

minority, the majority to minority rule will not justify approval

of a request to transfer.

The Court recognizes that the foregoing directives are tem-

porary and will be obviated by the completion of the com-

prehensive high school program.

MEMORANDUM

[5] Defendants have moved this Court to exclude those

students who will be seniors in the year 1979—80 from the

Court's order of August 24, 1979, relating to subject mat-

ter/program transfers. Plaintiffs have responded in opposition

to defendants’ motion.

In her affidavit attached to defendants’ motion, Dr. Peggy

Harris, research assistant for defendant Board of Education,

states that the sixty-six white students, designated as seniors for

— A-60 —

the year 1979—80, have requested and been approved for

transfer from Pearl to a comprehensive high school. This figure

represents approximately 20 percent of the 326 white students in

grades nine through twelve, originally zoned to Pearl, whose re-

quests for transfers out of Pearl have been approved (Exh. 98):

In addition, Dr. Harris stated that there were presently thirteen

requests for transfer out of Pearl from white seniors whose ap-

plications were pending decision by defendant Board.

In defendants’ motion, they note the testimony elicited at the

recent hearing from Leslie Carnes, Principal of Pearl High

School, and Dr. Elbert Brooks, Director of Metropolitan

Schools, regarding the special status of seniors who may have

bought senior rings and made plans to participate in athletic and

extracurricular activities. Plaintiffs, however, point out that the

problems of seniors were not the subject of extensive proof at

the hearings. They, therefore, argue that the special situation of

each senior should be evaluated by the defendant Board on an

individuai basis when the Board reconsiders its prior grant of

approval of transfer requests and initially considers pending

transfer requests. Although plaintiffs contend that it is not

equitable to permit those who have achieved a wrongfully ac-

quired status to profit from such status, they also appear to be

sensitive to the potential special needs and problems of seniors.

This Court has found that the previously utilized optional

transfer plan and the Board’s recent implementation of the sub-

ject matter/program transfer plan had a debilitating effect on

desegregation efforts in this school system. Toward the end of

halting the rapid trend of reversion to an almost totally black in-

ner city school, the Court ordered that the optional transfer

plan be terminated and the method by which the program

transfers were granted be radically revised so that program

transfers could be based on bona fide educational reasons rather

than on a means to escape a traditionally black, inner city

school.

— A-6i —

The Court has attempted to fashion a remedy that will

eliminate the negative effects of the previous policies of defen-

dant Board. In fashioning such a remedy, however, it is the

Court’s responsibility to balance the relative detriments and

benefits to the school children, who will be affected by the

Court’s order. The Court cannot decree in a theoretical void; it

must be cognizant of the specific situations involved and the

harm that may befall individual children. The Court is not in-

sensitive to the special status of high school seniors who have

made plans according to the assumption that they would be at-

tending the same school for their last year as they attended their

junior year. Such plans may have entailed expenditure of money

for class rings and senior pictures, and a commitment to par-

ticipate in, inter alia, athletic and band activities, school clubs,

and student government. To destroy a student’s plans for the

last year of high school and to wrest him away from the school

he has known and the friendships he has developed has the

potential for thwarting a child’s academic and social adjustment

and fulfillment of his educational goals. To uproot a child who

has spent at least the last year in anticipation of completing his

high school education in the same environment offends this

Court’s sense of justice. The potential harm in such upheaval

weighs heavily in favor of an exclusion for seniors from the

revised transfer plan.

The Court, therefore, grants defendants’ motion to exclude

‘seniors from the Court’s order of August 24, 1979. The Court

will permit the defendant Board to grant the application of any

senior who requests transfer from a school to which he attended

as a junior in the year 1978—79. The Court adopts the defini-

tion of “‘senior’’ used by defendants as any student who, based

on his number of credit hours, is capable of graduating from

high school during the regular school year of 1979—80 plus the

summer school term of 1980. An exemption for seniors will be

incorporated into the final version of the Court’s order of

August 24, 1979. This order of exemption of seniors from the

revised program transfer plan will be in effect only for the year

1979—80, and will not be extended beyond that year.

o Ati

APPENDIX C

Robert W. Kelley, Individually and

representative of the class

v.

Metropolitan County Board of Education of Nashville

and Davidson County, Tennessee, et al.

Henry C. Maxwell, Jr., Individually

and representative of the class

Vv.

Metropolitan County Board of Education of Nashville

and Davidson County, Tennessee, et al.

Nos. 2094, 2956.

United States District Court,

M. D. Tennessee,

May 20, 1980.

In a school desegregation case, the District Court, Wiseman,

J., held that: (1) the desegregation plan proposed by the Board

of Education, which recommended more busing to achieve

more racial balance, would be rejected, because it placed most

of the burden of achieving desegregation on young black

children and might lead to a public school system serving only

the lower social or economic segments of society, and (2) the

Board should consider a plan such including features as

neighborhood schools for kindergarten and lower elementary

grades, a minimum presence of at least 15 percent of the race in

the minority at middle schools, the use of magnet schools, the

use of public transportation, and educational components to

improve the opportunity of school children for intercultural ex-

periences.

=e

Judgment accordingly.

See also D.C., 479 F.Supp. 120.

1. Schools (key) 13(4)

Once finding has been made that racially discriminatory dual

school system has been maintained, it is responsibility of school

board, under supervision of district court, to achieve unitary

school system.

2. Schools (key) 13(6)

In determining remedy for school segregation, effectiveness

of proposed desegregation plan must be weighed against other

available alternatives and each alternative must be assessed in

terms of its relative costs.

3. Schools (key) 15942

Desegregation plan proposed by the Board of Education,

which recommended more busing to achieve more racial

balance, would be rejected, because it placed most of the

burden of achieving desegregation on young black children and

might lead to public school system serving only lower social or

economic segments of society.

4. Schools (key) 12(12)

Board of Education should consider desegregation plan in-

cluding features such as neighborhood schools for kindergarten

and lower elementary grades, minimum presence of at least 15

percent of race in minority at middle schools, use of magnet

schools, use of public transportation, and educational com-

ponents to improve opportunity of school children for inter-

cultural experiences.

Avon N. Williams, Jr., Richard H. Dinkins, Nashville,

Tenn., Plaintiffs Intervenors, Carrol D. Kilgore, William E.

Higgins, Nashville, Tenn., for plaintiff.

William R. Willis, Jr., Marian F. Harrison, Nashville, Tenn.,

for defendants.

MEMORANDUM OPINION

WISEMAN, District Judge.

The present posture of this case and this Court’s action

thereon require a recitation of the tortuous twenty-five-year

history of desegregation efforts in Metropolitan Nashville.

I. HISTORY OF NASHVILLE-DAVIDSON

COUNTY DESEGREGATION

PRIOR TO 1971

On September 23, 1955, plaintiff Robert W. Kelley filed this

class action lawsuit to enforce Brown v. Board of Education,

347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), decided the

previous year, and to enjoin the defendant Board of Education

of the City of Nashville from continuing to operate a segregated

school system. A three-judge court was convened in this

district,’ but, upon defendants’ concession that the Jaw was

unenforceable under Brown, the three-judge court was dissolved

for lack of jurisdiction and the case remanded to a single district

judge of this Court. Kelley v. Board of Educ., 139 F.Supp. 578

(M.D.Tenn. 1956).

' The three-judge court was convened pursuant to 28 U.S.C. §

2281, since plaintiffs contested the constitutionality of Tennessee law

mandating segregation, T.C.A. §5 49-3701 to 49-3704. These statutes,

enacted in 1901, prohibited interr=cial schools and the teaching of in-

terracial classes. Misdemeanor penalties were prescribed for violation

of this law. Section 49-3701 provided that ‘‘{ijt shall be unlawful for

As =

After a hearing on the proposed plan for desegregation sub-

mitted by the defendant Board, the Court, on January 21, 1957,

approved the plan insofar as it provided for desegregation for

grade one in the year 1957-58, but ordered the Board to develop

a plan to eliminate segregation in the remaining grades. Kelley

v. Board of Educ., 2 Race Rel.L.Rep. 21 (M.D. Tenn.1957). On

February 18, 1958, this Court rejected as unconstitutional the

Board’s proposed plan, essentially modeled after the Parenta:

Preference Law, T.C.A. § 49-3704,’ passed in January of 1957,

and previously held unconstitutional by this Court in Kelley v.

Board of Educ., 2 Race Rei.L.Rep. 970 (M.D. Tenn.1957). The

proposed plan proscribed mandatory integration or segregation

in any grade but permitted parents to choose between sending

their children to a one-race or integrated school. The Court

allowed the defendant Board two months to file another plan

any school, academy, college, or other place of learning to allow white

and colored persons to attend the same school, academy, college, or

other place of learning.”’ Acts 1901, ch. 7, § 1; Shann., § 6888437;

Code 1932, § 11395. Correlatively, section 49-3702 provided as

follows:

It shall be unlawful for any teacher, professor, or educator in

any college, academy, or school of learning, to allow the white

and colored races to attend the same school, or for any teacher

or educator, or other person to instruct or teach both the white

and colored races in the same class, school, or college ouilding,

or in any other place or places of learning, or allow or permit the

same to be done with their knowledge, consent, or procurement.

Acts 1901, ch. 7, § 2; Shann., § 6888438; Code § 11396.

* Section 49-3704 read as follows: ‘‘Separate schools

authorized. —Boards of education of counties, cities and special

of their own race.”’ Acts 1957, ch. 11, § 1.

— A-66 —

for desegregation of all grades.’ See Kelly (sic) v. Board of

Educ., 159 F.Supp. 272 (.D.Tenn.1958). On June 19, 1958,

this Court approved the proposed Board plan that provided for

elimination of compulsory segregation in grade two as of the

academic year 1958-59 and in one additional grade a year

therafter. See Kelley v. Board of Educ., 3 Race Rel.L.Rep. 651

(M.D.Tenn.1958), aff'd, 270 F.2d 209 (6th Cir.), cert. denied,

361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240 (1959).*

At the time Kelley v. Board of Education was filed, Davidson

County, surrounding Nashville, and the City of Nashville main-

tained separate school systems. Because the Kelley order had no

effect upon the county school system, which continued to

operate as a segregated system, plaintiff Henry C. Maxwell, Jr.,

filed a class action complaint on September 19, 1960, which

paralleled the complaint previously filed by plaintiff Kelley

against the Board of Education of the City of Nashville. On

November 23, 1960, this Court approved a gradual desegrega-

tion plan submitted by defendant County Board of Education

but modified the proposed one-grade-a-year component to re-

quire that immediate desegregation take place in grades one

through four with an additional grade each year in the future.

By so ordering, the Court placed the county school system on

the same grade-a-year basis as the city school system. See Max-

well v. County Bd. of Educ., 203 F.Supp. 768

(M.D.Tenn.1960), aff'd, 301 F.2d 828 (6th Cir. 1962), aff’d in

> At the same time, the Court denied defendants’ motion to dismiss

that was grounded on the adequacy of the administrative remedy pro-

vided in the Pupil Assignment Act, also enacted in January of 1957.

See Pub.Acts 1957, cc. 9-13.

* Plaintiffs appealed from the Court’s order because they asserted

that Brown mandated that desegregation be achieved with more celerity

than one grade per year. Defendants, on the other hand, appealed the

Couri’s ruling that the portion of the plan that implemented the

Parental Preference Law was unconstitutional.

— A-67 —

part, rev'd in part, sub nom. Goss v. County Board of Educ. of

Knoxville, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963).’

On September 10, 1963, after the City of Nashville and

Davidson County merged into a metropolitan government, the

Kelley and Maxwell cases were consolidated by consent order

remained in the same posture since 1963, with the primary

defendant being the Metropolitan County Board of Education

of Nashville and Davidson County. No significant action was

taken by this Court in regard to school desegregation until over

six years later.’

* The plan, as approved by this Court and affirmed by the Court of

Appeals, included a minority-to-majority transfer option for students

who would otherwise be zoned to schools in which they would be in a

racial minority. This provision is the converse of the majority-to-

policy currently in effect in Nashville-Davidson

i!

Educ., 186 F.Supp. 559 (E.D. Tenn. 1960), and affirmed by the Court

for the Sixth Circuit, Goss v. of Educ., 301 F.2d 164

(6th Cir. 1962), as well as such policy included in the Maxwell plan.

provision of both plans was constitutionally defective. Goss v. Board

of Educ., 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963).

—_—e

Upon plaintiffs’ motion for injunctive relief, this Court, on

November 6, 1969, issued a temporary restraining order, enjoin-

ing defendant Board from purchasing new school sites, building

new school facilities, or expanding existing school facilities, un-

til a hearing on the motion. After such hearing, the Court, on

July 16, 1970," enjoined the Board from school construction not

commenced as of the date of the restraining order, and ordered

that the Board devise a comprehensive plan for a unitary school

system that included, inter alia, rezoning and school construc-

tion to maximize school integration. Kelley v. Metropolitan

County Bd. of Educ., 317 F.Supp. 980 (M.D.Tenn.1970). The

defendant submitted a plan as ordered, but, on August 25,

1970, the Court effectively stayed its order until resolution by

the United States Supreme Court of school desegregation cases

then pending before it. On December 18, 1970, however, the

Court of Appeals for the Sixth Circuit vacated the stay and

reinstated this Court’s order. Kelley v. Metropolitan County

Bd. of Educ., 436 F.2d 856 (6th Cir. 1970).

Il. THE 1971 COURT ORDER

Pursuant to the remand order of the Court of Appeals, this

Court held hearings on the Board’s proposed revised plan in the

spring of 1971. At such hearings, a plan was submitted by the

Board, a plan by the plaintiffs, including alternate plans for the

elementary schools, and two alternate plans submitted by the

Department of Health, Education, and Welfare [HEW], acting

as consultant to the Court. The Court rejected defednants’ pro-

case involved was Swann v. Chariotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

posal, calling it a ‘‘mere tinkering with attendance zones,”’ and

“‘only a token effort.’’ Kelley v. Metropolitan County Bd. of

Educ., Nos. 2094, 2956, at 6 (M.D.Tenn. June 28, 1971).'*

The Court similarly rejected both of plaintiffs’ proposals

because they allowed the school board to determine the actua!

assignment of pupils and implementation of the plan. In light of

the Board’s past actions and apparently half-hearted efforts to

devise a unitary school system that would encourage integra-

tion, the Court was naturally reluctant to delegate to the Board

the responsibility for specific implementation. Additionally, the

Court rejected the elementary school plans proposed by plain-

tiffs because they included some schools in the periphery of the

county. The Court at that time found that the distances involved

and the attendant busing costs were so great that it was not

feasible to include the outer reaches of the county in a com-

prehensive busing plan. '

The Court did adopt the element in both plaintiffs’ and

defendants’ plans that instituted an ‘‘ideal student racial ratio’’

in the range of 15 to 35 percent black in each school. After re-

jecting both plaintiffs’ and defendants’ plans, the Court viewed

the HEW plan, as amended after evidence adduced at the hear-

ings, which incorporated geographic zone changes, clustering,

ws. my predecessor on this case, now Chief

rom commending .

Judge L. Clure Morton, for an opinion that was remarkable not only

—_s

contiguous and noncontiguous pairings, and grade restructur-

ing, as the “‘only realistic plan remaining.’’ /d. at 8. Perhaps

most significant in terms of its total impact on the school

system, the Court, in an effort to insure a racially unitary school

system, ordered that over 13,000 more students be transported

in the 1971-72 school year than had been bused in the previous

year. Jd. at 4-5.'* Under the pupil assignment plan as submitted

by HEW and adopted by the Court, no schoo! would have a ma-

jority of black students.

To discourage future resegregation, the Court made specific

orders designed to maximize the potential for an integrated

system. Included in the Court’s order was a directive for the

Board to implement a majority-to-minority transfer policy. The

Court also approved the proposed construction of what was

later built as the Whites Creek Comprehensive High School

because of its proximity to the proposed inner city expressway

loop, located approximately half-way between predominantly

black and white residential populations. The Court enjoined the

construction of the proposed Goodlettsville Comprehensive

High School because it would be located in an all-white com-

munity and not in proximity to the line of demarcation between

the two populations. The Court similarly denied the Board per-

mission to enlarge Hillsboro High School, located in a white

community, into a comprehensive high school, enjoined the use

of portable classrooms for any purpose other than integration,

and, finally, although exempting the predominantly white

schools in the outer county from the effect of busing, enjoined

the Board from renovating or enlarging by either construction

or use of portables any schools that serve less than 15 percent

black students after implementation of the plan.

'? Approximately 10,500 more elementary school children were to

be bused, and 2,838 more secondary children were to be transported.

Id. at 4-5.

— A-71 —

Both parties appealed the 1971 decision of this Court.'’ The

defendants appealed on the bases of the Court’s asserted failure

to comply with Rule 23 of the Federal Rules of Civil Procedure,

the invalidity of the Court’s requirement of a fixed racial ratio,

and the alleged adverse effects on the health and safety of the

children resulting from implementation of the plan. Plaintiffs

cross-appealed, claiming that their proposed plan should have

been approved by the Court because it would have achieved a

greater degree of integration and because the HEW plan, as ac-

cepted, placed a disproportionate burden upon black children.

The Court of Appeals for the Sixth Circuit affirmed on all

grounds, focusing on the discretion lodged with the district

court and on the fact that some of the claims raised on appeal

had not been adequately raised first in the district court.'*

'* The memorandum opinion was issued on June 28, 1971, whereas

the order was issued on July 15, 1971. On July 21, 1971, this Court

denied defendants’ motion to set aside the memorandum opinion of

June 28 on the basis of the Court’s alleged failure to comply with Rule

23 of the Federal Rules of Civil Procedure. See Appendix B to Kelley

v. Metropolitan County Bd. of Educ., 463 F.2d 732, 748-50 (6th Cir.

1972).

'* The Court of Appeals found that this Court had used a flexible

racial ratio at a guide and that such a guide had been approved by the

Supreme Court in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1, 91 S.Ct. 1267, 28 L.Bd.2d 554 (1971). Although the HEW

plan was “‘somewhat less stringent’ than the plan proposed by the

plaintiffs, the Court of Appeals held that the Court’s approval was

within judicial discretion and had, following the mandate of Green v.

County School Bd. of Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20

L.Ed.2d 716 (1968), the promise of effectively dismantling the

previously dual system. Kelley v. Metropolitan County Bd. of Educ.,

463 F.2d 732, 743, 746 (6th Cir. 1972). In regard to defendants’ con-

tentions that the proposed plan would work undue hardships on the

children of this county, the Court of Appeals noted that such concerns

had not properly been presented to the district court and were,

therefore, not cognizable on appeal. Similarly, the Court of Appeals

stressed the fact that the district court would be open to motions for

modification by plaintiffs if there were adverse effects on black

children who were, according to plaintiffs, made to bear the brunt of

the busing burden. The HEW plan, as accepted, paralleled the Swann

plan, and the incorporation of any disparate burden on black children

into that plan was not addressed by the Swann Court.

~All =

Ill. SUMMARY OF ACTIONS TAKEN

BY THE COURT AND THE PARTIES

SINCE THE 1971 COURT ORDER

Although little action having a signficant impact on the

school system was taken by this Court between the 1971 order

and 1979, the parties filed myriad motions, reports, and letters,

many of which were not acted upon during the eight-year

period. A recounting of pleadings and other communications

filed with the Court during these years will help to put the pro-

gress of and problems with school desegregation in this county

into better perspective.

The first report by defendants was filed with this Court on

October 19, 1971, and described the first month of operation

under the plan. Two days later, plaintiffs moved to join as par-

ties defendant the Metropolitan Government, the Metropolitan

Mayor, and the members of the Metropolitan Council since

they controlled the purse strings from which money for increased

transportation must come.

Defendants’ second report to the Court was filed on March

17, 1971, which proposed the attendance zone and othe: plans

for a new comprehensive high school in the Joelton-Whites

Creek area, which would be close to the proposed inner loop in

the northeastern part of the county and which the Court in the

1971 order had indicated it would approve when plans were

finalized. Additionally, the report proposed capital im-

provements for schools whose student composition was at least

15 percent black. No action was ever taken on the proposals in-

cluded in this report.

Three months later, the defendant Board of Education filed a

petition, seeking changes in the plan in regard to elementary and

junior high school zones and the approval of the use of an ai:-

nex for an overcrowded school in the southeastern portion of

the county unaffected by the Court’s busing order. Plaintiffs

— A-73 =

responded by generally objecting to the proposed changes and

requesting changes in the plan as adopted, in that it called for

the closure of certain inner city black schools and clustering pat-

terns that required more cross-busing of black children than

whites.

A hearing was held pursuant to the motions filed and, by

order and memorandum, issued August 17, 1972, and August

19, 1972, respectively, the Court granted plaintiffs’ motion to

add the additional parties defendant, approved the requested

changes in the elementary school zones, but denied the defen-

dants’ proposed changes in three junior high schools that would

have resulted in lessened degrees of desegregation in those

schools. The Court also ordered that the Board purchase addi-

tional buses, report to the Court regarding costs of transporta-

tion, and close all schools not later than 4 p.m. each day. Fur-

ther, the Court issued a temporary restraining order against the

newly added defendants (council members and mayor) from in-

terfering with the Court’s order to desegregate. No action was

taken by this Court on plaintiffs’ concerns about the alleged

disparate transportation burden on black children.

With the third district judge sitting on this case since its incep-

tion,'’ the Court held a hearing on the Board’s report submitted

pursuant to the Court’s last order and, by order of August 31,

1972, approved that report and dissolved the injunction against

the newly added defendants. Shortly thereafter, the defendant

Board sought modification of the August 17, 1972, order pro-

hibiting school closure not later than 4 p.m., which this Court

granted on September 11, 1972.

'* When this case was first instituted and after the three-judge court

— A-74 —

The final action taken by this Court prior to pretrial matters

and the subsequent hearings in the summer of 1979 involved an

action brought by three newly added black City Council defen-

dants as third party plaintiffs against the United States, HEW,

and federal officials, as third party defendants. The third party

plaintiffs sought to enjoin the third party defendants from con-

tinuing to withhold federal funds that would be used for

transportation expenses which would be incurred in implemen-

ting the Court’s desegregation order. After holding that the

Court had jurisdiction over the third-party defendants except

for the United States, see Ke/ley v. Metropolitan County Bd. of

Educ., 372 F Supp. 528 (M.D. Tenn.1973),'* the Court held that

the acts of the third party defendants in refusing to release funds

for busing for desegregation purposes pursuant to a recently

promulgated policy was illegal. The Court further enjoined the

discretion upon requests for funds. See Kelley v. Metropolitan

County Bd. of Educ., 312 F.Supp. 540 (M.D.Tenn.1973).

Several matters were pending before this Court at the time it

addressed the third party issues. They were not dealt with by the

‘* On December 13, 1973, the Court also granted the original defen-

dant Board of Education leave to intervene as a third party plaintiff in

this third party action.

= £15 =

regard to the report filed by the defendant Board on March 17,

1972, in which the Board sought approval for construction of

Whites Creek Comprehensive High School. Since that time, the

Whites Creek School has been constructed. The current zones

for the school are incorporated into a petition filed by the Board

on July 24, 1978, discussed infra.

Also pending at the time of this Court’s last order was the

Petition for Approval of the Long Range Building Program, fil-

ed on May 30, 1973.'’ This proposal outlining twenty-six

building projects has essentially merged into more recent

pleadings that describe future plans in greater detail.'*

The day after the Petition for Approval of the Long Range

Plan was filed, defendant Board filed a petition for approval of

portables for use in kindergartens. See Exhibit 55. At the time

of the 1971 court order, this county had not extensively in-

Over two years elapsed before either party officially filed fur-

ther pleadings in this case, although counsel for the Board cor-

— A-16 —

responded by letter to the Court during this period of time.'’

The next official pleading was defendants’ motion to amend

their previously filed Petition for Approval of the Long Range

Building Plan and for further relief, filed October 14, 1976,

wherein the defendants specifically described new plans for the

proposed Goodlettsville-Madison High School and asked the

Court’s approval to implement these plans.

The first pleadings filed by plaintiffs since 1972 were the

answer to defendants’ proposed long range plan and a Petition

for Contempt and for Further Relief, both filed on December

27, 1976. Plaintiffs therein moved that defendants be held in

contempt for their plan to construct the Goodlettsville-Madison

High School,”* the expansion of Hillsboro, Overton, Hillwood,

'* Counsel for the Board filed two letters unreported on the Court's

docket sheet. The first was filed on August 15, 1973, and relayed the

Board’s decision to proceed with the plan for using portables at

kindergarten sites. See Exhibit 55. On October 19, 1973, counsel filed

a letter requesting a speedy resolution of the Petition for Approval of

the Long Range Building Plan incorporated into the petition filed on

May 30, 1973. See defendants’ memorandum for status conference,

filed March 29, 1979. In addition to a relatively insignificant letter filed

on November 28, 1973, counsel also filed letters on July 15, 1974, see

Exhibits 27, 39, and March 14, 1975, see Exhibit 37. The 1974 letter

informed the Court of the Board’s plan to seek funding for high

schools that would, beginning in 1978-79, offer comprehensive pro-

grams. Included in this plan were the Whites Creek High School and

the proposed Goodlettsville-Madison High School. Also listed in the

letter were elementary schools that were part of the longrange building

plan. In the 1975 letter, counsel related the projected enrollment

percentages for Hillwood, Hillsboro, and Stratford, as expanded

comprehensive high schools, and informed the Court that funding for

vocational facilities at these schools would be sought.

* Defendants had described this plan in their motion to amend,

—_v

Glencliff, Stratford, and Maplewood High Schools into com-

prehensive high schools,’' the construction of Whites Creek

Comprehensive High School,” the establishment of the Cole

Elementary School annex,’’ and, finally, the proposed closure

of Pearl High School, the only traditionally black high school

located in the inner city.**

Plaintiffs also sought alterations in the Court’s 1971 order,

stressing, as they had before and after the 1971 order, the

disparate busing burden placed on black children.** According

to the plan and the Board’s implementation of it in the last nine

years, black children are bused out o. the inner city to schools in

*' Requests for expansion of Hillsboro High School, implicitly

disapproved by the Court in the 1974 order when it denied defendants’

application to acquire additional property for expansion to a com-

high school, had been reiterated in defendants’ Petition for

Approval of the Long Range Plan of May 30, 1973, and in counsel’s

letters of July 15, 1974, and March 14, 1975. Also included in these

» Such construction had been proposed in defendants’ petitions to

the Court, filed March 17, 1972, and May 30, 1973, and again in

counsel’s letter to the Court of July 15, 1974.

* As reported to the Court on July 15, 1976, the Board reopened

Turner School to serve as an annex for the fifth and sixth grades at

Cole for the year 1976-77. Cole is located in the southeastern part of

the county, outside the “‘court-ordered’’ area. whereas Turner is

located further in toward the center of the city in the ‘‘court-ordered”’

area.

* By the time this case was heard in July of 1979, the Board had re-

jected the plan, as submitted by the staff, to close Pearl.

** In addition to raising this issue on appeal, plaintiffs addressed

this concern in their response of August 14, 1972, to the Board's peti-

tion of July 7, 1972. The Court did not deal with this issue in its order

and memorandum opinion, issued August 17, 1972, and August 19,

1972, respectively.

— A-78 —

predominantly white neighborhoods for grades one through

four, whereas white children are bused into the inner city to at-

tend formerly predominantly black schools in grades four and

five.

Plaintiffs further requested that the 1971 order be modified to

include a requirement that defendants recruit, employ, and

assign black personnel commensurate with the ratio of the black

students in the schooi system. Finally, plaintiffs asked the Court

to change the 1971 order to incorporate a plan to upgrade Pear!

High School and other inner city schools.

In plaintiffs’ petition for contempt and further relief, they ad-

ditionally asked the Court to award attorneys’ fees. They had

previously requested attorneys’ fees in motions dated February

8, 1974, and April 11, 1975, as well as in a motion, filed October

16, 1975, to dispose of the pending motions for attorneys’ fees.

The next formal pleading was filed in this Court by defendant

Board nearly two years later. In its Petition for Approval of

School Attendance Zones for 1978-79, filed on July 24, 1978,

and amended on August 18, 1978, the Board asked that the

Court accept new zoning plans, grade structures, and feeder

.** Plaintiffs responded to defendants’ request, but no

action was taken by this Court.

* The petition detailed the zone lines for Hillwood, Hillsboro,

Overton, Maplewood, Glencliff, Stratford, and Whites Creek as com-

|

i

i

i

i

i

— A-79 —

The final pleading filed in this case prior to the 1979 pretrial

matters was plaintiffs’ amendment to the October 14, 1976,

Petition for Contempt and for Further Relief, filed on August

28, 1978. Basically, the amended petition reiterates the concerns

stated in plaintiffs’ earlier petition although in addition it

responded to defendants’ July 24, 1978, petition.

IV. THE 1979 COURT ORDER

In the spring of 1979, this Court held a pretrial conference to

distill the remaining issues, some of which had obviously laid

dormant for years, and to organize the progression of the case.

In an effort to simplify the future presentation of the case, the

Court divided the pending matters into four phases, which

would be heard seriatim: (1) Historical recapitulation of school

desegregation in this county since 1971, and consideration of the

Board’s Long Range Plan, including requests for construction

projects; (2) Matters relating to the racial composition of staff

and faculty; (3) Plaintiffs’ petitions for contempt; and (4) Plain-

tiffs’ petitions for attorneys’ fees.

Hearings on Phase I were held in June and July of 1979, at

the conclusion of which the Court ordered that the defendant

Board devise and submit to the Court a new plan for desegrega-

tion that would involve the entire metropolitan county rather

than exempt the outer reaches as the 1971 order had done.

Kelley v. Metropolitan County Bd. of Educ., 479 F.Supp. 120

{M.D.Tenn.1979).?’ Because of the short time involved before

the beginning of the school year 1979-80, however, the Court

approved the zones already in effect for 1979-80, and allowed

the Board an additional year before implementation of a coun-

— A-80 —

Because the Vocational Education Act, T.C.A. $§ 49-2709 ef

seq., mandated that each school system provide children with

an opportunity to attend a comprehensive high school, those

children zoned to a noncomprehensive high school in this county

had been allowed to transfer automatically to a comprehensive

high school. At the 1979 hearings, it became apparent that white

children zoned to Pearl High School in the inner city had used

this opportunity to defeat the desegregation efforts at that

school, leaving Pearl 96.6 percent black in the school year

1978-79. The Court, therefore, enjoined the Board from further

implementation of the automatic transfer policy, ordered it to

review all transfer requests, and grant such transfers only for

bona fide program reasons. Such an injunction was issued orally

from the bench on July 2, 1979, before the conclusion of the

hearings.

On August 7, 1979, subsequent to the issuance of that injunc-

tion and the already concluded hearings, plains ffs filed a peti-

tion for contempt, charging that the Board had not complied

with the July 2 order. Hearings were held during August of 1979

on plaintiffs’ motion for contempt. The Court found that the

of the School Board”’ and violated the spirit of the Court’s 1971

order as well as the July 2, 1979, order. 479 F.Supp. at 129. The

rATTEPEET]

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= Asi —

Court, therefore, specifically defined the procedure by which

requests for subject-matter transfers should be considered. /d.

at 124-30. Pursuant to defendants’ motion filed after the hear-

ings, the Court permitted the Board to grant any transfer re-

quests of any senior who asked to transfer from a school to

which he was zoned to the high school he attended as a junior in

the previous year. Jd. at 131-32.

V. DEVELOPMENTS SINCE THE

AUGUST 1979 COURT ORDER”

In response to the August 27, 1979, Court order, the defen-

dant Board began meeting on October 29, 1979, to develop a

countywide desegregation plan. In compliance with the Court's

suggestion that the Board encourage and consider community

input,’’ the Board established a citizens’ advisory panel whose

members sat with the Board in its deliberations on the plan.

Each of the nine Board members, three of whom were black,

chose one citizen representative.’® Five public hearings were

held in November of 1979, at which time suggestions from

** The Court noted that the significance of an difficulties in achiev-

school system mandate that ‘‘the best minds available to

parties, including input from the many weil-motivated, thoughtful

citizens of the community, should be sought and received.’’ Kelley v.

= County Bd. of Educ., 479 F Supp. 120, 123 (M.D.Tenn.

1 >

—_—y

citizens were sought in an effort to develop criteria upon which

to base a plan. After the public hearings, the Board and

Citizens’ Advisory Panel met five times in December of 1979, to

develop criteria for the plan.’'

*' The Board adopted the following twelve criteria that should be

utilized in the development of the plan:

1. That all schools in the county would be involved in the unitary

school plan;

2. That a four-tiered system of grades be adopted, which would

consist of 1-4, 5-6, 7-8, and 9-12 as nearly as possible;

3. That a child would not go to more than four schools during his

experience, if his residence did not change;

4. That feeder patterns of elementary to middle to high school be

established which would allow as many students as possible to remain

together for as long as possible;

5. That the goal of this plan be that eaci school have an optimum of

32 percent black students with a 20 percent range on either side of op-

timum (12 percent black to 52 percent black);

6. That the goal of the plan be the establishment of a magnet pro-

gram in any secondary school in which the white minority enrollment

is between 10 percent and 20 percent;

7. That, wherever possible, school zones that are integrated by at

least 32 percent minority (black or white) without busing for racial

balance should be established;

8. That the goal of the plan be to distribute the burden of busing as

equitably as possible;

9. That the planners be directed to consider all existing buildings,

full utilization of presently used buildings based on projected enroll-

ment, the option of reopening buildings not now in use, expansion of

these buildings, and the possible addition of new buildings which will

facilitate the conservation of time, distance and fuel and whici: will

facilitate the other major criteria of the plan;

10. That priority consideration be given to the utilization of existin;

facilities prior to recommendations for construction of new buildings;

11. That the average bus ride, one way, be kept to 30 minutes and no

route will be longer than 80 minutes (the longest route at the present

time under the present plan);

— A-83 —

During these December meetings, the Board voted to retain

three outside consultants who had expertise in the area of school

desegregation.’? A planning team was formed, composed of the

three consultants, the Assistant Superintendent for Facilities

and Services, the Director of Zoning for the school system,

eight principals currently employed by the school system, and

two administrative employees of the Board’s central office.’’ In-

put was also received from other experts in the field who had

either worked with school systems under desegregation orders

or who had academic expertise in this area.’*

12. That no first and second grade students be required to ride buses

more than 30 minutes one way unless it is to the nearest school. See

Collective Exhibit 154, at 479-80, 483-84, 529, 5é8.

” The three outside consultants hired by the Board were Dr.

Donald Waildrip, former Superintendent of the Cincinnati Public

School System, former Assistant Superintendent of the Dallas School

System, private consultant to various school districts on their

desegregation plans, and an authority on magnet schools; Dr. Everett

Myer, Assistant Director, Educational Opportunities Planning

Center, University of Tennessee, Knoxville, Tennessee; and Mr.

Nathaniel Crippens, retired Associate Director of the Desegregation

Assistance Center, University of Tennessee College of Education,

Knoxville, Tennessee.

” The a represented elementary, junior high, and high

schools, including schools formerly unaffected by the Court order as

well as those within the 1971 order. Of the eight principals selected,

three were black. Of the two administrative personnel, one was black

and one white.

** The five experts consulted by the Board and planning team were

Dr. Jay Robinson, Superintendent of the Charlotte-Mecklenburg,

North Carolina School System; Dr. Robert Crane, Sociologist and

Professor at Johns Hopkins University; Dr. James Barnes of the North-

eastern Desegregation Center, Hartford, Connecticut; Dr. Vern Cun-

ningham, court-appointed Master of the Columbus, Ohiw School

System; and Dr. Richard Pride, Associate Professor of Political

Science, Vanderbilt University, Nashville, Tennessee, and author of a

a

~~

The planning team worked through February 4, 1980, con-

sulting regularly with the Board. The Board met to develop a

plan, using the previously established criteria, thirteen times

during January and February of 1980, spending over 65 hours

on its formulation. Two of these meetings were devoted to

public hearings to obtain further community imput. See Exhibit

177. In the early morning hours of February 5, 1980, the Board

adopted a plan, after spending close to one hundred hours of

preparation and deliberation. See Exhibit 178.

The plan, thus developed and approved, was submitted to the

Court on February 11, 1980. In its regular February 12, 1980,

meeting, however, the Board voted to amend the plan. Such

amendment was filed with the Court on February 14, 1980, by

way of affidavit of counsel for defendant Board. Plaintiffs filed

their objections to the Board’s proposed plan on February 29,

1980. A diverse group of plaintiff-intervenors,’’ representing

schools slated for closure under the Board plan, requested and

were granted permission to intervene and filed the rudiments of

an alternative plan on February 29, 1980. The intervenors’ plan

was modified and refined during the course of the hearings and

submitted with greater detail in their proposed plan on April 14,

1980.

*’ The intervenors represented parents and concerned ciiizens from

the following areas:

(1) the Bellevue community, which is a growing, predominantly

white area in the southwest portion of the county in which the Board

proposes to close Bellevue High School, leaving only a junior high;

(2) the Joelton community, which is a rural, predominantly white

area in the northwestern part of the county where the Board proposes

to close Joelton High School, leaving it operational as an elementary

and junior high;

(3) the inner city, integrated neighborhood surrounding Cohn High

School; and

— A-85 —

Hearings in this case recommenced on March 3, 1980, anc

were held for sixteen days in March, nine days in April, and

ended with closing arguments on May 1, 1980. During these

hearings, testimony was received regarding the plans submitted

by both the defendant Board and the intervenors. Before the

hearings started, while they were in progress, and even

thereafter, the Court received several hundred letters from

parents, interested citizens, and community groups, all of which

were made a part of the official record in this case. A com-

parable number of letters was received by the defendant Board.

The compendium of such letters to the Board was introduced in-

to the record as Collective Exhibit 170. Amicus curiae briefs

were filed by the Metropolitan Nashville Education Associa-

tion, the League of Women Voters, and the American Educa-

iion Legal Defense Fund. The three black members of the

Board filed a dissent to the plan proposed by the Board and also

testified at the hearings. Another white Board member also filed

a separate, written dissent from the plan.

During the course of the hearings, the plaintiffs were offered

the opportunity to file an alternative plan. This offer was first

declined but later accepted by the plaintiffs. The additional time

requested in which to develop such a plan, however, appeared

to preclude a resolution of the case by the beginning of the

school year 1980-81 and, therefore, no such plan was presented.

The plaintiffs did, through their expert witness, Dr. Hugh

(4) the almost totally black neighborhood adjacent to the inner city

Pearl High School.

The Court cannot help but be pleasantly surprised as well as ex-

ceedingly gratified that citizens from these communities with diverse

concerns and needs have bound together in a spirit of cooperation and

industry. It is to be hoped that these citizens will continue to work

together in the coming years to insure the effectiveness of a unitary

school system in this county.

~~

Scott,’* offer specific objections, recommendations, and sug-

gestions to the Court.

During the pendency of the hearings and thereafter, the

Court read all communications from the public and studied in

detail the plans proposed by the defendant Board and the in-

tervenors, the objections filed by the plaintiffs, and the con-

cerns and suggestions presented in the amicus briefs. The plans

and objections thereto will be described below.

VI. PROPOSED DESEGREGATION PLAN

SUBMITTED BY DEFENDANT SCHOOL BOARD

Several basic principles, developed initially by the Board as

criteria to be used in formulating the plan, see note 31 supra, are

woven into the plan as finally adopted and submitted to the

Court although rigid adherence to these goals was apparently

not always possible. The Board determined that a four-tiered

grade structure was the most conducive to integration efforts

and that such grade structures would, when feasible, consist of

grades 1-4, 5-6, 7-8, and 9-12. The Board adjusted the previous

range of percentage of black students per school from 15-35 per-

cent, as adopted by the Court in 1971, to an optimum of 32 per-

cent black with a range of 20 percent in either direction, thus

allowing a given school to have only 12 percent black or as much

as 52 percent black. The Board focused on the concern of

lengthy bus rides by setting a limit of 80 minutes for the longest

one-way bus ride’’ and 30 minutes for first and second graders

unless a longer ride is necessary to reach the nearest school.

** Dr. Scott is presently Dean for Programs in Education and Pro-

fessor of Education at Hunter College of the City University of New

York. He has been a professor of education at Howard University,

Superintendent of Schools for the Public Schools of the District «

Columbia, Region Assistant Superintendent fro the Detroit Public

Schools, and has published numerous articles relating to education.

*” Some white children are presently bused 80 minutes for

nonintegration purposes to attend the nearest school.

— A-87 —

A. Senior High School Plan

The Board plan provides for the retention of the eight existing

comprehensive high schools to serve grades 9-12, and the im-

mediate closure of only two of the nine traditional high schools.

Joelton High School, in the northwest portion of the county

previously unaffected by the Court order, and Bellevue High

School, in the southwestern corner of the county, also outside

of the Court order, are slated to be closed as high schools but re-

tained as junior highs. The Board proposes to maintain Hume

Fogg High School, located in downtown Nashville, as an open-

zoned, vocational-educational school for grades 10-12. West

End Junior High School would be converted into an open-

zoned, magnet school for the academic

This text is long and has been trimmed here. Open the source document for the complete record.