# Appendix — Metropolitan County Board of Education v. Kelley

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1045%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1183

## Text

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Appendix G - Unpublished Memorandum Opinion of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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1045%3A2. Public record. Not legal advice.