Appendix — Metropolitan County Board of Education v. Tennessee

Supreme Court, U.S.

FILED

APR 26 1988

8 v4 1 v4 v4 4 JOSEPH F. SPANIOL, JR.

|

CLERK

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1987

METROPOLITAN COUNTY BOARD OF EDUCATION OF

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

Petitioners,

VS.

STATE OF TENNESSEE, ef a/.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM R. WILLIS, JR.

MARIAN F. HARRISON

WILLIS & KNIGHT

215 Second Avenue North

Nashville, Tennessee 37201

(615) 259-9600

St. Louts Law Printing Co., Inc., 13305 Manchester Road 63131 314-231-4477

TABLE OF CONTENTS

Appendix A — Opinion of the Sixth Circuit Court of Appeals,

dated December 30, 1987

Appendix B — Order of the Sixth Circuit Court of Appeals

denying petition to rehear and for rehearing en banc, dated

March 15, 1988

Appendix C — Order of the Sixth Circuit Court of Appeals

staying mandate, dated March 28, 1988

Appendix D — Opinion of the United States District Court for

Middle District of Tennessee, dated August 14, 1985,

Kelley v. Metropolitan Board of Education, et al., 615

F.Supp. 1139 (M.D. Tenn. 1985)

Appendix E — Opinion of the Sixth Circuit Court of Appeals,

dated July 27, 1982, Kelley v. Metropolitan County Board

of Education, 687 F.2d 814 (6th Cir. 1982)

Appendix F — Opinion of the District Court for the Middle

District of Tennessee, dated April 17, 1981, Kelley v.

Metropolitan County Board of Education, 511 F.Supp.

1363 (M.D. Tenn. 1981)

Appendix G — Opinion of the District Court for the Middle

District of Tennessee, dated May 20, 1980, Kelley v.

Metropolitan County Board of Education, 492 F.Supp.

167 (M.D. Tenn. 1980)

Appendix H — Opinion of the District Court for the Middle

District of Tennessee, dated August 27, 1979, Kelley v.

Metropolitan County Board of Education, 479 F.Supp.

120 (M.D. Tenn. 1979)

Appendix I — Affidavit of Bill Wise, dated December 19, 1984,

R. 54, 56

APPENDIX A

Nos. 85-5837/5838

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Robert W. Kelley, et al.,

Plaintiffs,

Vv.

Metropolitan County Board of Education of

Nashville and Davidson County, Tennessee, et al.,

Defendants-Third-Party

Plaintiffs-Appellees,

Cross-Appellants,

V.

State of Tennessee; Lamar Alexander,

Governor of the State of Tennessee;

Robert L. McElrath, Commissioner of

Education and State Board of Education,

Third-Party Defendants-Appellant,

Cross-Appellees.

~ On Appeal from the United States District

Court for the Middle District of Tennessee.

Decided and Filed December 30, 1987

Before: ENGEL, NELSON and RYAN, Circuit Judges.

DAVID A. NELSON, Circuit Judge. This case originated in

1955 as a desegregation action brought by a group of black

school children and their parents against the school board of

Nashville, Tennessee. A similar action was filed in 1960 against

s

ae s. oe

the board of education of Davidson County, in which Nashville

is located. The actions were consolidateu, and the original

defendants were replaced by the Metropolitan County Board of

Education of Nashville and Davidson County, Tennessee

(‘‘Metro’’). The subsequent history of the litigation is well set

out in the district court’s opinion, reported at 615 F.Supp. 1139

(M.D. Tenn. 1985), and in an earlier opinion reported at 492

F.Supp. 167 (M.D. Tenn. 1980); we shall not repeat the story

here.

The present dispute began in 1981 — some 26 years after the

start of the lawsuit — when Metro filed a third-party complaint

against the State of Tennessee, the state board of education,

and certain state officials. As amended in 1983, the third-party

complaint asked, in essence, that the state be required to pay the

full cost of implementing the desegregation remedies ordered by

the district court in 1971 and subsequent years.

Metro moved for partial summary judgment on its third-

party complaint. In disposing of that motion the district court

held that ‘‘a retroactive award for costs already sustained”’

would be prohibited by the Eleventh Amendment of the United

States Constitution. 615 F.Supp. at 1147. Finding no constitu-

tional impediment to an award of relief prospectively from the

date on which the third-party complaint was filed, however, the

court entered an order reading as follows:

‘‘The State of Tennessee and state officials named as

defendants shall be enjoined from refusing to carry out

their duty to participate in the elimination of the vestiges

of past discrimination in the State’s public education

system. To ensure compliance with the injunction, the

Court orders the State to assume sixty percent (60%) of the

costs directly attributable to Metro’s desegregation pro-

gram from and after the date of the filing of this petition

on March 16, 1981....”

The state and the other third-party defendants appeal from

that order, arguing, among other things, that it violates the

am fic} om

principle of sovereign immunity. Metro cross-appeals, conten-

ding that the state ought to be held responsible not only for

costs incurred from and after the filing of the third-party com-

plaint, but also for costs incurred in the decade before. The

original plaintiffs are not parties to either appeal.

Having concluded that the federal courts would not be

justified in shifting any of the costs in question from Metro to.

the State of Tennessee, we shall reverse the district court’s

order, deny the cross-appeal, and direct that judgment be

entered in favor of the state and the other third-party defen-

dants.

The Eleventh Amendment provides that ‘‘[t]he Judicial

power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one

of the United States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.’’ This language does not, by

its terms, insulate a state from suit by its own citizens. The

Supreme Court of the United States has long held, however,

that such suits are barred unless the state has long held,

however, that such suits are barred unless the state has con-

sented to be sued. Hans v. Louisiana, 134 U.S. 1 (1980). Adop-

tion of the Eleventh Amendment, the Supreme Court has

declared, constituted an ‘‘affirmation that the fundamental

principle of sovereign immunity limits the grant of

[federal] judicial authority in Art. III’’ regardless of the plain-

tiff’s citizenship. Pennhurst State School & Hospital v. Halder-

man, 465 U.S. 89, 98 (1984); cf. Ex parte New York, 256 U.S.

490, 497 (1921).' ;

' Justice Brennan, in a series of powerful dissents, has argued that

insofar as judges have extended the doctrine of sovereign immunity

beyond the actual language of the Eleventh Amendment, the doctrine

ought to be repudiated as lacking ‘‘a textual anchor, a firm historical

foundation, or a clear rationale.’’ Atascadero State Hospital v.

—- oe

The principle of sovereign immunity is a ‘‘broad’’ principle,

as well as a fundamental one. Welch v. State Dep’t of

Highways, 483 U.S. _____ 107 S.Ct. 1941, 2952, 97 L.Ed.2d 389,

404 (1987). And that broad fundamental principle, as Justice

Powell wrote in Welch, *‘has been among the most stable in our

constitutional jurisprudence.”’ /d., 97 L.Ed.2d at 405. It con-

Stitutes ‘‘an absolute bar’’ to a state’s being sued by its own

citizens, among others, Monaco v. Mississippi, 292 U.S. 313,

329 (1934)—and if a state cannot be sued by its own citizens, @

fortiori it cannot be sued by its own political subdivisions,

which are creatures of the state and exist only at the state’s suf-

ferance.

The State of Tennessee is not the only third-party defendant

in the case at bar, of course, but along line of Supreme Court

decisions teaches that ‘‘when the action is in essence one for the

recovery of money from the state, the state is the real, substan-

tial party in interest and is entitled to invoke its sovereign im-

munity from suit even though individual officials are nominal

defendants.’’ Ford Motor Co. v. Department of Treasury of

Indiana, 323 U.S. 459, 464 (1945), as quoted and followed in

Edelman v. Jordan, 415 U.S. 651, 663 (1974). Although

Edelman was a suit against individual officers, as the Supreme

Court subsequently explained, “‘the case was in effect a suit

against the State itself because a judgment payable from state

funds was demanded.’’ Cory v. White, 457 U.S. 85, 90 (1982).

Scanlon, 473 U.S. 234, 257 (1985); cf., inter al., Employees of the

Dep’t of Public Health & Welfare v. Missouri Dep’t of Public Health

& Welfare, 411 U.S. 279, 298 (1973); Edelman v. Jordan, 415 U.S.

651, 687 (1974); Yeomans v. Kentucky, 423 U.S. 983 (1975); Pen-

nhurst State School & Hospital v. Halderman, 465 U.S. 89, 125

(1984); Welch v. State Dep't of Highways, 483 U.S. ___., ____., 97

L.Ed.2d 389, 411 (1987). Obviously, however, it is not within the pro-

vince of an inferior court such as ours to reverse Supreme Court prece-

dent that ‘‘has been assumed to be the law for nearly a century.”’

Welch, 483 U.S. at ____, 97 L.Ed.2d at 411 (Scalia, J., concurring).

—————

The third-party action brought by Metro against the State of

Tennessee and its officials is essentially one for the recovery of

money from the state, and the presence of individual officials as

nominal third-party defendants cannot make of the action

something it is not. The ‘‘absolute bar’’ of sovereign immunity

therefore applies. The applicability of the bar of sovereign im-

munity simply is not affected by the circumstance that the

nominal defendant is an individual state official, Ford Motor

Co., supra, any more than it is affected by the circumstance that

the relief sought is equitable rather than legal in nature,

Papason v. Allain, 478 U.S. ____, 92 L.Ed.2d 209, 226 (1986),

or the circumstance that the case is one in which a federal con-

stitutional violation is alleged. Pennhurst, supra; Edelman,

supra.

It is true that the constitutional provision that was violated by

the State of Tennessee (and by Metro’s predecessors) is the

Equal Protection Clause of the Fourteenth Amendment, and

not, as in Hans v. Louisiana, the Contract Clause of the original

Constitution. If the nature of the constitutional violation

makes any difference, however, it cuts in favor of respecting the

State’s sovereign immunity in this case. Although it remains to

be decided whether Congress has the power to abrogate the

States’ immunity from lawsuits in which a violation of the

original Constitution is alelged ( see Welch, 107 S.Ct. at 2946,

97 L.Ed.2d at 397), it is clear that ‘‘Congress can abrogate the

Eleventh Amendment without the States’ consent when it acts

pursuant to its power “‘to enforce, by appropriate legislation’

the substantive provisions of the Fourteenth Amendment.’’

Welch, 107 S.Ct. at 2946, 97 L.Ed.2d at 397 (quoting Fifz-

patrick v. Bitzer, 427 U.S. 445, 456 (1976), and § 5 of the Four-

teenth Amendment) (emphasis supplied). The logic of current

Supreme Court doctrine seems to be that the question whether

the states are to be made subject to suit for violations of the

Fourteenth Amendment is a question that has been entrusted to

Congress, not to the courts. Cf. Atascadero State Hospital vy.

Scanlon, 473 U.S. 234, 242-43 (1985).

—- po

It might once have been arguable that Congress abrogated the

states’ immunity from suit for Fourteenth Amendment viola-

tions when it enacted the Ku Klux Klan Act of 1871, the precur-

sor to 42 U.S.C. § 1983, but the Supreme Court has rejected the

contention that Congress intended, by the general language of §

1983, to override the states’ traditional sovereign immunity.

Quern v. Jordan, 440 U.S. 332, 341 (1979). ‘‘Congress may

abrogate the States’ constitutionally secured immunity from suit

in federal court only by making its intention unmistakably clear

in the language of the statute.’’ Atascadero State Hospital, 473

U.S. at 242. Congress has enacted no such statute, and the

federal courts have no authority to enact one for it.

It bears emphasis that we are not here called upon to ad-

judicate the rights of plaintiffs suing to obtain the equal educa-

tional opportunities promised them in Brown vy. Board of

Education, 347 U.S. 483, 493 (1954). Those plaintiffs have long

since won their case. They won it without ever having asserted

any claim against the state. - They are already receiv-

ing—through decrees that do no violence to the principle of

sovereign immunity—the full measure of relief to which they are

entitled under the Constitution.

The issue before us is not whether children in the Metro

schools will receive the benefits of the enhanced educational

programs that the district court ordered Metro to develop and

implement. The educational components of Metro’s desegrega-

tion plan have alredy been affirmed by this court (687 F.2d 814

(6th Cir. 1982), cert. denied, 459 U.S. 1183 (1983)), and Metro

makes no claim—notwithstanding an admission at oral argu-

ment that those components ‘‘have not been as fully im-

plemented as they should be’’—that it is incapable of complying

with the educational components of the plan. Similarly, the

issue is not whether the school children will be transported in ac-

cordance with the mandatory busing plan which, as modified

several years ago to meet the requirements of this court, has

been in effect for more than a decade and a half. That busing

eV

— se

plan, we are told, ‘‘has been fully implemented.’’ Neither the

district court’s broad power to require that the Metro shcools be

desegregated nor its power to require appropriate action to

eliminate any lingering consequences of de jure segregation is in

question here, and the vitality of the Supremacy Clause of the

United States Constitution will not suffer in any way from our

reversal of the district court’s order. The contest between

Metro and the State of Tennessee is a contest not about

desegregation, but about money.

The amount of money at issue is substantial; it comes, we are

told, to some $6 million per year. The state currently under-

wirtes about 30% of Metro’s non-transportation costs, and it

pays a still larger share of the costs of transportation; Metro,

however, wants more. The state treasury can be compelled to

provide more, Metro argues, because of the ‘‘prospective com-

pliance’’ exception carved out of the doctrine of sovereign im-

munity by Ex parte Young, 209 U.S. 123 (1908).

In Ex parte Young, as the district court explained,

‘‘the Supreme Court recognized the ‘prospective-

compliance’ exception to the jurisdictional bar of the

Eleventh Amendment, permitting federal courts to enjoin

ongoing conduct by a state official that is in violation of

federai law. The ‘fiction’ of Young holds that a state may

not authorize an unconstitutional action by its officers.

Hence, for Eleventh Amendment purposes, a State official

is stripped of his official status and subject to the conse-

quences of his conduct when he acts in an unlawful man-

ner.” 615 F.Supp. at 1146.

Thus it was that the Supreme Court held, in Young, that

although the state itself could not be enjoined from enforcing

an unconstitutional statute, individual state officials could be;

officials ‘‘who threaten and are about to commence proceedings

... to enforce...an unconstitutional act... may be enjoined by a

Federal court of equity from such action.’’ 209 U.S. at 156.

age ip

Unlike the individual state officials in Ex parte Young, the in-

dividual third-party defendants in the case at bar are not

threatening to enforce any unconstitutional act. The district

court says, in its opinion, that the Tennessee officials are being

enjoined ‘‘from continuing to refuse to discharge their duty to

participate in the implementation of desegregation of Metro

schools,’’ 615 F.Supp. at 1151, but the ‘‘participation’’ man-

dated by the district court’s order is purely financial; the of-

ficials will not be in contempt of the court’s order if they pay

60% of Metro’s desegregation costs out of the state treasury,

and they will be in contempt if they fail to do so. The Tennessee

officials are not currently doing anything wrong, and they have

not been joined in this case to prevent them from doing

anything wrong; they have been joined solely to permit one

sometime constitutional wrongdoer to recover monetary com-

pensation from another. But as the Supreme Court has

repeatedly told us, such ‘‘compensatory”’ interests ‘‘are insuffi-

cient to overcome the dictates of the Eleventh Amendmeni.”’

Green v. Mansour, 474 U.S. 64, 68 (1985); cf. Papasan, 92

L.Ed.2d at 226-27.

The Supreme Court explained in Papasan that ‘* Young has

been focused on cases in which a violation of federal law by a

state official is ongoing as opposed to cases in which federal law

has been violated at one time or over a period of time in-ihe

past, as well as on cases in which the relief against the state of-

ficial directly ends the violation of federal law as opposed to

cases in which tnat relief is intended indirectly ... to meet third-

party interests such as compensation.’’ Papasan, 92 L.Ed.2d at

226-27. The case at bar is one where the relief sought is intended

‘*to meet third-party interests such as compensation,’’ and not

one where ‘‘relief against the state official directly ends...[an

ongoing] violation of federal law.’ Ex parte Young has no

legitimate application here.

That Metro’s ‘‘compensatory interest’’ is being satisfied only

prospectively is a circumstance devoid of constitutional

significance. A case in point is Louisiana v. Jumel, 107 U.S.

711 (1883). There, as here, unconstitutional state action had led

aa ae

to the assertion against state officers of what amounted essen-

tially to claims for both retrospective and prospective monetary

relief; both forms of relief were held barred by the sovereign im-

munity doctrine. Holding that the state officials simply were

not subject to suit in the federal court, the Supreme Court con-

cluded that the relief sought — future relief, as well as relief in

respect of obligations already accrued—could not be granted in

the absence of a waiver by the state of its sovereign immunity:

**When a State submits itself, without reservation, to the

jurisdiction of a court in a particular case, that jurisdiction

may be used to give full effect to what the State has by its

act of submission allowed to be done; and if the law

permits coercion of the public officers to enforce any judg-

ment that may be rendered, then such coercion may be

employed for that purpose. But this is very far from

authorizing the courts, when a State cannot be sued, to set

up its jurisdiction over the officers in charge of the public

moneys, so as to control them as against the political

power in their administration of the finances of the State.

In Our opinion, to grant the relief asked for ... would be to

exercise such a power.’’ Jume/, 107 U.S. at 728.

Although it has been afforded many opportunities to do so,

the Supreme Court has never repudiated Louisiana v. Jumel; in

literally dozens of subsequent decisions, on the contrary, the

Supreme Court has cited that seminal case or its progeny with

every indication of approval. (See, e.g., Great Northern Life In-

surance Co. v. Read, 322 U.S. 47 (1944), and the numerous

cases there cited: ‘‘[The] ruling that a state could not be con-

trolled by courts in the performance of its political duties

through suits against its officials has been consistently

followed.’’ /d. at 51.) If Louisiana v. Jumel is still good law, it

is controlling here.

It could be argued, perhaps, that Louisiana v. Jumel was

overruled sub silentio by Milliken v. Bradley, 433 U.S. 267

(1977), the Supreme Court decision that comes closer than any

— ss

other to justifying the result reached by the district court in this

case. The monetary relief granted in Milliken was merely an-

cillary to other affirmative relief, however, and the monetary

relief granted here is not. That fact, coupled with the reasoning

of post-Milliken cases in which the Supreme Court has

‘‘ageressively’’ expanded the doctrine of sovereign immunity

(Welch v. State Highway Dep’t, 107 §.Ct. at 2958, 92 L.Ed.2d

at 411 (Brennan, J., dissenting)), leads us to believe that the

principle followed in Louisiana v. Jumel is still sound.

The payment of money was not perceived to be all that was

required of the state defendants in Milliken. As we noted in our

Own opinion in that case, 540 F.2d 229, 240 (6th Cir. 1976),

‘the District Court directed that the Detroit Board and the

State put into effect certain comprehensive programs which

were found to be essential to the success of the desegregation ef-

fort.’’ (Emphasis supplied.) That understanding was shared by

the Supreme Court; the Court’s opinion notes that ‘‘the

[district] court directed the Detroit Board and the State Depart-

ment of Education to institute a testing program,’’ and ‘‘the

[district] court ordered the Detroit Board and the state defen-

dants to institute comprehensive programs as to the four educa-

tional components [of the desegregation plan.]’’ 433 U.S. at

276-77 (emphasis supplied). It was immediately after this

sentence that the Supreme Court noted that ‘‘[t]he cost of these

four programs ... was to be equally borne by the Detroit School

Board and the State.’’ /d. at 277.

The Supreme Court went on to hold, in Milliken, that the

district court’s decree ‘‘fits squarely within the prospective-

compliance exception’’ carved out of the sovereign immunity

doctrine by Ex parte Young, supra. The exception is a narrow

one; in the words of the Milliken court, it merely ‘‘permits

federal courts to enjoin state officials to conform their conduct

to requirements of federal law, notwithstanding a direct and

substantial impact on the state treasury.’’ 433 U.S. at 289.

‘*The order challenged here,’’ the Milliken court continued,

— A-ll —

“does no more than that.’’ Id. (emphasis supplied). The order

was thus within the district court’s constitutional power, as the

Supreme Court subsequently explained, ‘‘even though accom-

panied by a substantial ancillary effect on the state treasury.”’

Papasan, 92 L.Ed.2d at 227 (emphasis supplied).’

The effect on the state treasury of the order entered by the

district court in the case at bar is not ‘‘ancillary’’ to anything at

all, other than the command to ‘‘assume sixty percent (60%) of

the costs directly attributable to Metro’s desegregation pro-

gram.”’ The order to pay is ancillary only to itself, in other

words, and therefore it goes beyond Milliken. If the payment

order in Milliken had not been ancillary to some command out-

side itself, affirmance of the order would have been utterly in-

consistent with Jume/. The latter decision was specifically call-

ed to the Court’s attention in the brief filed by the state defen-

dants in Milliken (see 53 L.Ed.2d 1224), and the fact that Jumel/

was not cited in the Milliken decision thus suggests that the

Court did not intend to overrule it.

That conclusion is strengthened, we believe, by Pennhurst,

supra, decided seven years after Milliken. Justice Powell, who

delivered the opinion of the Court in Pennhurst, there cited

both Jumel and Ford Motor, supra, in support of the ‘‘well

established”’ proposition that ‘‘[t]he Eleventh Amendment bars

a Suit against state officials when ‘the state is the real, substan-

tial party in interest.’ ’’ Pennhurst, 465 U.S. at 101 (quoting

Ford Motor, supra.) Justice Powell’s own concurring opinion

in Milliken had emphasized that much of the Court’s opinion in

that case possessed only ‘“‘limited precedential effect,’’ 433

* See also Quern v. Jordan, 440 U.S. 332, 337 (1979), where the

Court cited Millrken just after noting that in Edelman, 415 U.S. at

667-68, the Court had observed that ‘‘a federal court, consistent with

the Eleventh Amendment, may enjoin state officials to conform their

future conduct to the requirements of federal law, even though such

an injunction may have an ancillary effect on the state treasury.”’

(Emphasis supplied.)

— A-12 —

U.S. at 292, and the Justice’s subsequent treatment of Jume/ in

Pennhurst shows plainly that he did not read Milliken as having

overruled Jumel.

We find nothing to the contrary in Papasan, supra. That was

a direct action brought against the Governor of Mississippi and

other state officials by a group of disadvantaged school children

and certain local school officials who alleged that the Equal

Protection Clause was being violated by a ‘‘present disparity in

the distribution of the benefits from the State’s Sixteenth Sec-

tion [school] lands.’’ 92 L.Ed.2d at 229. Pointing out that the

alleged violation was ‘‘current~~and ‘‘ongoing,”’ and stressing

that “‘the essence of the equal protection allegation is the pre-

sent disparity in the distribution of the benefits of state-held

assets and not the past actions of the State,’’ the Court declared

itself unwilling to rule out a ‘‘remedy to eliminate this current

disparity, even a remedy that might require the expenditure of

state funds ....’’ /d., at 230.

The disparity complained of in Papasan was that the schools

attended by the plaintiff children were receiving school-land

funds of only 63 cents per pupil at a time when schools

elsewhere in the state were receiving an estimated $75.34 per

pupil. Although the plaintiffs claimed that they were not receiv-

ing a minimally adequate education, the Supreme Court ex-

plicitly declined to try to resolve the issues raised by that claim.

Instead, the Court remanded the case for consideration of the

following issue: ‘‘Given that the State has title to assets granted

to it by the Federal Government for the use of the State’s

schoois, does the Equal Protection Clause permit it to distribute

the benefit of these assets unequally among the school districts

as it now does?’’ /d. at 234.

If it should be decided, on remand of the Papasan case, that

the Constitution does not permit the ‘‘benefit’’ of the school

lands to be distributed unequally, the appropriate remedy

would seem to be an order directing the authorities to

— A-13 —

recalculate their division of the benefit and to start distributing

the benefit in equal shares. Such an order would, to be sure, en-

tail increased payments to the schools that had been receiving

only 63 cents per child, but it would necessarily entail a cor-

responding decrease in payments to the schools that had been

getting $75.34 per child. The total benefit from the school lands

would remain the saine; the only change would be in its division.

The ancillary effect of the order on the state’s treasury would be

absolutely nil, except insofar as the state might elect voluntarily

to increse appropriations from the general funds of the state for

schools suffering a reduction in receipts from Sixteenth Section

lands.

That is a totally different situation from the one presented in

the case at bar, where the State of Tennessee has been ordered

to spend money it would not otherwise have been under any

obligation to spend at all. Tennessee, moreover, has been

ordered to spend this additional money on the basis of past

violations of the Constitution—and Papasan leaves no room for

doubt that ‘‘[rJelief that in essence serves to compensate a party

injured in the past by an action of a state official in his official

capacity that was illegal under federal law is barred even when

the state official is the named defendant.’’ 92 L.Ed.2d at 227

(footnote omitted).

This suggests an independent reason why Milliken v. Bradley

cannot justify the extraordinary relief ordered here. The

Milliken litigation was begun in 1970, and by the time it reached

the Supreme Court (for the second time) in 1977, the State of

Michigan, ‘‘in a finding no longer subject to review,...[had

been] adjudged a participant in the constitutional violations

..e. 433 U.S. at 295 (Powell, J., concurring). The case at bar,

in contrast, was begun in 1955, and not until 30 years later, in

1985, did the district court find that the State of Tennessee ‘“‘is a

‘constitutional wrongdoer’ culpable [and answerable] for the

continuing effects of state-imposed segregation ....’’ 615

F.Supp. at 1142. That finding is, of course, subject to review

— A-14 —

here, and we have searched the record of this case in vain for

any demonstration that the integration of metropolitan

Nashville’s schools has been wrongfully impeded by anything

the state has done, or has failed to do, in the 1970s or 1980s.’

The mere fact that Tennessee was a constitutional wrongdoer

prior to 1956 does not mean that it was still a constitutional

wrongdoer when the district court entered its order 30 years

later. As justice Powell wrote more than a decade ago,

* It is true that in 1970 the Tennessee legislature ena:ted a statute

prohibiting boards of education from requiring busing to achieve, in

the words of the statute, ‘‘a racial balance or racial imbalance in any

school.’’ Acts 1970 (Adj. S.), ch. 491, § 2. (That statute was enacted

some months before the district court, in what we have described as a

‘careful opinion,’’ 436 F.2d 856, 859 (6th Cir. 1970), made it clear

that under the law as it then stood, “‘the compulsory bussing of pupils

to achieve any sort of mathematically ideal balance is not required by

the decisions of the Supreme Court.’’ 317 F.Supp. 980, 990

(M.D.Tenn. 19” ;.) In an order dated July 15, 1971, the district court

adopted a desegregation plan that did require mandatory busing to

achieve racial balance. There is no evidence in the record to suggest

that the 1970 statute ever had the slightest effect on busing in

Nashville.

The work-product of the 1970 Tennessee legislature cannot be fairly

evaluated, moreover, without taking into account the fact that the

same legislature passed a law providing, among other things, that

‘*{nJo person shall be refused admission into or be excluded from any

public school in the state of Tennessee on account of race, creed, col-

or, sex or national origin.’’ Acts 1970 (Adj. S.), ch. 474, § 1.

The district court complains of ‘‘numerous official antibusing

resolutions,’’ 615 F.Supp. at 1149, including, presumably, House

Joint Resolution No. 342, adopted March 22, 1972, where ‘‘all

members of the Tennessee Congressional Delegation [were] com-

mended for their stand against bussing,’’ and House Joint Resolution

No. 376, approved April 19, 1972, formally petitioning the Depart-

ment of Justice to intervene in pending lawsuits in Memphis, Nashville

and Chattanooga pursuant to a recent message in which the President

of the United States had said ‘‘that the U.S. Department of Justice

might intervene in local school cases where school bussing was ordered

by the courts in a manner that caused undue hardship and ill will.’’

Whatever one may think of these resolutions and petitions to the na-

— A-15 —

‘The principal cause of racial and ethnic imbalance in

urban public schools across the country—North and

South—is the imbalance in residential patterns. Such

residential patterns are typically beyond the control of

school authorities.’’ Austin Independent School District v.

United States, 429 U.S. 990, 994 (1976) Powell, J., concur-

ring in grant of certiorari).

The state did have ‘‘an affirmative duty ‘to effectuate a tran-

sition to a racially nondiscriminatory school system,’ ’’ Keyes v.

School District No. 1, 413 U.S. 189, 200 (1973), quoting Brown

v. Board of Education, 349 U.S. 294, 301 (1955), but in 1956 the

Supreme Court of Tennessee struck down all provisions of state

law requiring segregation of the races in the public schools, Roy

v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1956), and the old

system of de jure segregation was completely dismantled in the

1960s. The state’s duty in this respect was discharged long

before Metro filed its third-party complaint against the state.

Although the state may still have an affirmative obligation to

see that the lingering effects of de jure segregation are

eliminated, the existence of such an obligation does not compel

either the conclusion that the state must discharge the obligation

directly or the conclusion that the state may assign to its subdivi-

tional authorities, it is not to be supposed that the Fourteenth Amend-

ment repealed the First; the merits of mandatory busing obviously

constitute a legitimate subject for public debate and discussion. We

expect our elected representatives to listen to the concerns of the com-

munity, and before the third-party defendants were joined as parties

in this case an attentive listener would have heard ‘‘a white majority of

the school board, acting on the advice of a white desegregation expert,

recommending to the Court more busing to achieve more racial

balance,’’ at the same time that ‘‘the black plaintiff urge[d] upon the

Court /ess busing, more neighborhood characteristics to the assign-

ment plan, and the permissibility of majority black schools.’’ 492

F.Supp. at 184. Men and women of good will obviously can and do

differ on these extraordinarily difficult questions, and this is an area

where no one can honestly claim to be certain that the policies he or

she favors are the wisest policies.

— A-16 —

sions no more than 40% of the cost of discharging it.

‘*Municipal corporations [and metropolitan school boards] are

political subdivisions of the State,’’ after all, ‘‘created as conve-

nient agencies for exercising such of the governmental powers of

the State as may be entrusted to them.’’ Hunter v. Pittsburgh,

207 U.S. 161, 178 (1907). In Brown II, 349 U.S. 294 (1955), the

Supreme Court ‘‘held that the primary responsibility for

abolishing the system of segregated schools would rest with the

local school authorities.’’ United States v. Montgomery Coun-

ty Board of Education, 395 U.S. 225, 226 (1969). If the State of

Tennessee has chosen to let local school boards pull the laboring

Oar in attempting to eliminate the consequences of segregation,

that is no more an evasion of state responsibility than if the state

had chosen to act solely through the State Department of

Education. ‘‘The very complexity of the problems of financing

and managing a statewide public school system suggests that

‘there will be more than one constitutionally permissible method

of solving them’. . . .’’ San Antonio Independent School

District v. Rodriguez, 411 U.S. 1, 42 (1973), quoting Jefferson

v. Hackney, 406 U.S. 535, 546-47 (1972). The record in this

case simply does not show that the State of Tennessee is current-

ly a participant in any constitutional violation.

In the post-Milliken case of Green v. Mansour, 474 U.S. 64,

73 (1985), finally, the Supreme Court held that not even a

declaratory judgment may be entered against state officials

‘‘when the result would be a partial ‘end run’ around our deci-

sion in Edelman v. Jordan, 415 U.S. 651 ....”> The Edelman

decision, as the Supreme Court reiterated in another post-

Milliken case, Cory v. White, 457 U.S. 85, 90 n.2 (1982),

“*recognized the rule ‘that a suit by private parties seeking to im-

pose a liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment.’ ’’ To read

Milliken as justifying the order entered in the case at bar would

1 nm

|)

be to sanction just the kind of ‘‘end run’’ around Ede/man that

Green v. Mansour forbids.‘

The order before us represents not only an end run around

Edelman, but an ‘‘end-run around the. . . legislature’s alloca-

tion of state funds.’’ United States v. Texas Education Agency,

790 F.2d 1262, 1265 (Sth Cir. 1986), cert. denied, 93 L.Ed.2d

828 (1987). Under our tradition of government, that is a very

serious matter.

Echoing a provision found in Article I, § 9 of the United

States Constitution, the Constitution of the State of Tennessee

provides that ‘‘[nJo public money shall be expended except pur-

suant to appropriations made by law.’’ Tenn. Const. art. II. §

‘In Reed v. Rhodes, 662 F.2d 1219 (6th Cir. 1981), cert. denied, 455

U.S. 10-18 (1982), and Penick v. Columbus Board of Education, 663

F.2d (6th Cir. 1981), cert. denied, 455 U.S. 1018 (1982), this court did

affirm judgments ordering state defendants to share in the payment of

school integration costs in Ohio. The defense of sovereign immunity

was not considered or ruled on in either case, however.

Other circuits appear to be divided as to whether federal courts

must defer to the states in determining how school integration plans

will be financed. See, e.g., United States v. Indianapolis Bd. of

School Comm ’rs, 677 F.2d 1185 (7th Cir.), cert. denied, 459 U.S. 1086

(1982) (state required to pay all costs where state was the sole violator;

Eleventh Amendment not implicated because the plaintiff was the

United States); Liddell v. Bd. of Education, 667 F.2d 643 (8th Cir.),

cert. denied, 459 U.S. 877 (1982) (affirming order that state pay one-

half of cost); Evans v. Buchanan, 582 F.2d 750, 774-80 (3d Cir. 1978)

(en banc), cert. denied, 446 U.S. 923 (1980) (vacating order that im-

posed a higher school tax rate than the maximum authorized by state

legislation); United States v. Texas Educational Agency, 790 F.2d

1262 (Sth Cir. 1986) cert. denied, 93 L.Ed. 828 (1987) (state not re-

quired to share costs where it had not been an active party to the litiga-

tion since 1970.) None of the court of appeals opinions we have ex-

amined can be said to demonstrate convincingly that the Supreme

Court’s sovereign immunity decisions do not mean what they seem to

Say.

ee

24. (Cf. Tenn. Code Ann. § 9-7-101(a): ‘‘No money shall be

drawn from the state treasury except in accordance with ap-

propriations duly authorized by law.’’) These

‘‘appropriations,’’ of course, are appropriations made by the

state legislature in laws either approved by the governor of the

state or passed by the legislature over his veto. Tennessee law

thus contemplates that the money raised by the state through

taxation of its people is to be expended only as the people

themselves direct, in laws enacted by representatives chosen by

the people and accountable to them at election time.

The federal judiciary clearly has the duty and the power to

prohibit segregation in the schools of Tennessee, but in no way

does it follow that the judiciary has any corresponding authority

to dictate the specific financial arrangements under which the

costs of integrating the schools shall be handied. As long as

those costs are in fact paid, we see no justification for an

unelected judiciary making policy judgments as to how the tax

burden shall be allocated.

To date, at least, the judgment of the Tennessee legislature

has been that school integration costs ought not be shifted from

the taxpayers of individual school districts to the taxpayers of

the state at large. The wisdom of that judgment is doubtless

debatable, and our decision in this case may well lead to just

such a debate—in the halls of the legislature, which is where the

debate belongs. A judgment that 60%—or 10%, 30%, 90% or

100% —of all school integration costs ought to be assumed by

the taxpayers at large would obviously be defensible as a matter

of policy, and perhaps some such allocation would represent a

sounder policy than the one the legislature has thus far chosen

to follow. But while we may consider our judgment on such a

question superior to the legislature’s, we are not free to set the

legislature’s judgment aside and substitute our own. No matter

how desirable we may think a shift in the tax burden would be,

the accomplishment of such an end cannot justify resort to un-

constitutional means. For us to assume a “‘legislative role,’’ as

iia iia enema

— A-19 —

Justice Powell put it in San Antonio Independent School

District v. Rodriguez, 411 U.S. 1, 31 (1973), would be to assume

a role ‘‘for which the Court lacks both authority and com-

petence.’”’

In Milliken I, where the Supreme Court rejected the judicial

creation of a ‘‘new super school district’’ for metropolitan

Detroit, the Court said that implementation of that sort of

remedy would create a whole host of complex questions, in-

cluding fiscal and tax questions, with which judges are ill-

equipped to deal. 418 U.S. at 743. After noting that ‘‘the

District Court will become first, a de facto ‘legislative authority’

to resolve these complex questions, and then the ‘school

superintendent’ for the entire area,’’ the Court went on to

observe that ‘‘[t]his is a task which few, if any, judges are

qualified to perform and one which would deprive the people of

control of schools through their elected representatives.’’ 418

U.S. *t 743-44.

The reason that federal judges are not ‘‘qualified’’ or ‘‘com-

petent’’ to resolve these legislative questions is not that they are

demonstrably deficient in the skills, talents and wisdom that

legislators ought to possess. Many judges now sitting have serv-

ed very ably in state legislatures or in Congress, and these people

did not lose their aptitude for legislating when they assumed the

bench. What they lost, rather, was their authority to legislate.

The voters can remove a legislative representative from office,

but cannot remove a federal judge from the bench; and that,

under the American tradition, is a principal reason the legislator

has been entrusted with broader authority than the judge.°

* The Vermont Constitution of 1777 is instructive in this connec-

tion:

**That those who are employed in the legislative and executive

business of the state, may be restrained from oppression, the

people have a right, at such periods as they may think proper, to

reduce their public officers to a private station, and supply the

vacancies by certain and regular elections.’’ /d., Ch. 1, § VII, as

quoted in 4 P. Kurland & R. Lerner, The Founders’ Constitu-

tion 559 (1987).

— A-20 —

For a state legislature to enact a 60%-40% split of school in-

tegration costs would be totally unexceptionable. The same

60%-40% split ordered by a federal court is another matter

altogether. Not only are legislatures accountable to the elec-

torate as courts of law are not, but the acts of a legislature are

subject to change or repeal by the people, through their

representatives, as acts of a court may not be. It has often been

pointed out that when the act of a federal district judge is ac-

companied by the words “‘this is what the Constitution

requires,’’ the judge (given the concurrence of the appellate

courts) has prevented the people’s representatives from chang-

ing-—ever—what he has done, unless the Constitution itself be

changed. This is formidable power indeed; it is power that is

necessary, to be sure, but because its exercise is not subject to

political control and its conclusions are not subject to amend-

ment by ordinary political means, it is power that we must guard

against exercising on political questions.

If unelected judges are free to second-guess the people’s

elected representatives on how the costs of running the schools

shall be allocated as between the state and its political subdivi-

sions, may the judiciary also second-guess the people’s represen-

tatives on what the overall levei of costs shall be? Courts were

never intended to become the final arbiters in the budgetary

process at any level of government, local, state or federal; that is

the job of the people’s elected representatives. Thus it is that

‘*it]he consideration and initiation of fundamental reforms with

respect to state taxation and education are matters reserved for

the legislative processes of the various States ...."’ Rodriguez,

411 U.S. at 58.

In language of majestic simplicity, our Constitution provides

that ‘‘The United States shall guarantee to every State in this

Union a Republican Form of Government ....’’ U.S. Const.

Art. IV, § 4. A “‘republican’’ form of government, as Madison

suggested in Number Ten of the Federalist Papers, is ‘‘a

Government in which the scheme of representation takes

A-2t =

place.’’ (Emphasis supplied.) In few (if any) areas of govern-

ment is Madison’s ‘‘scheme of representation’’ more important

than it is in the area of government finance and taxation. A

principal cause of our Revolutionary War, after all, was the im-

position of taxes without representation. The concept that

‘*taxation without representation is tyranny’’ was one for which

a number of the Framers had put their very lives on the line. Our

Constitution was not adopied to perpetuate the evil that led us

to break our ties with the British Crown.

More than a quarter of a century ago the Mayor of Nashville,

suing ‘‘on behalf of himself and all residents of the City of

Nashville, Davidson County’’, was permitted to join other Ten-

nessee voters in a lawsuit alleging that there had been a ‘‘debase-

ment of their votes,’’ in violation of the Fourteenth Amend-

ment, because of a malapportionment of legislative seats among

the counties of the state. That lawsuit led to a landmark

Supreme Court decision holding that the plaintiff voters had a

judicially cognizable interest ‘‘in maintaining the effectiveness

of their votes.’’ Baker v. Carr, 369 U.S. 186, 208 (1962),

quoting Coleman vy. Miller, 307 U.S. 433, 438 (1939). Although

the plaintiffs in Baker v. Carr did not rely on the specific con-

stitutional guarantee of a republican form of government, and

the Supreme Court did not read the plaintiffs’ claim as resting

on that guarantee, the Court did observe that ‘‘[iJt is in-

conceivable that guaranties embedded in the Constitution of the

United States may... be manipulated out of existence.’’ /d. at

230, quoting Frost & Frost Trucking Co. v. Railroad Commis-

sion, 271 U.S. 583, 594 (1926), as quoted in Gomillion v.

Lightfoot, 364 U.S. 339, 345 (1960). The Supreme Court’s

vigilance in guarding against the impairment of voting rights has

helped give life and substance to the core values embodied in the

constitutional guarantee of a republican form of government.

‘**Recognition of ‘one person, one vote’ as a constitutionai prin-

ciple,’’ it has been said with some authority, “‘redeems the pro-

mise of self-governance ....’’ Brennan, ‘‘My Encounters with

the Constitution,’’ Judge’s Journal 6, 59 (Summer 1987). The

a eo

‘*promise of self-governance’’ would prove hollow indeed if the

right to a meaningful and effective vote were to be manipulated

out of existence by the judiciary itself, through decisions ten-

ding to debase the people’s votes by shifting the legislative

power from a body the people can vote for to one they cannot

vote for.

An obvious rejoinder, it might be thought, is that the State of

Tennessee once was—and may still be—a ‘‘constitutional

wrongdoer,’’ and there is nothing improper about judges direc-

ting such wrongdoers to pay for the righting of their wrongs.

Again, however, the existence of a duty to eliminate the conti-

nuing effects of past racial segregation does not mean that the

duty may only be discharged through taxes levied by the state,

as Opposed to taxes levied by the counties of the state. This

‘‘constitutional wrongdoers must pay for their wrongs’’ argu-

ment has little or no force where we are talking about two

political entities, a state and one of its own subdivisions, each of

which has done wrong (as have subdivisions not now before us),

and where the men and women representing the electorate of the

state as a whole—an electorate that includes the voters of all the

subdivisions—have chosen not to enact legislation shifting to the

state as a whole the costs of repairing the wrongs within each

subdivision.

Federal courts may not be cailed upon, in the first instance,

‘*to adjudicate what is essentially an internal dispute between

two local governmental entities, one of which is asserting un-

constitutional conduct on the part of the other.’’ South

Macomb Disposal Authority v. Township of Washington, 790

F.2d 500, 507 n.1 (6th Cir. 1986) (Engel, J., concurring). That

being so, we do not see how they may be called upon to ad-

judicate an interna! dispute between a local governmental entity

and the very state that created it. One of the principles

recognized in the great case of Trustees of Dartmouth College v.

—

Woodward, 17 U.S. (4 Wheat.) 518 (1819)—a principle that

subsequent decisions have ‘‘moved from the area of dicta ... to

established federal constitutional law,’’ as the South Macomb

concurrence notes—is the principle that

‘*because municipal bodies are essentially creatures of the

state and because the state retains the inherent power to

alter, change or even to abolish them in accordance with

the state’s constitution and laws made thereunder, the

United States Constitution simply does not concern itself

with matters of internal disagreements between a staie and

subdivisions created by it ... for this area involves matters

which the state is uniquely competent to resolve.’’ 790 F.2d

at 507.

Thus it was that in City of Trenton v. State of New Jersey, 262

U.S. 182, 192 (1923), the Supreme Court declared that constitu-

tional restraints sought to be invoked by the City of Trenton

againsi its parent state

‘‘do not apply as against the State in favor of its own

municipalities. We hold that the City cannot invoke these

provisions of the Federal Constitution against the imposi-

tion of the [State] license fee ... here in question.’’

Citing City of Trenton, this court, speaking tlirough Judge

Contie, said in South Macomb that ‘‘a municipal corporation

‘cannot invoke the protection of the Fourteenth Amendment’

against its own state,’’ at least where that protection is sought to

be invoked by the local government body ‘‘in its own right.”’

790 F.2d at 504-05.

If this court were to dismiss the State of Tennessee as a formal

party but otherwise affirm the order entered by the district court

in the case at bar, the state and its treasury would still be the real

third-party defendants. Metro, the third-party claimant, is a

political subdivision of the state, and the claim it asserts is

asserted by Metro in its own right. A local school board can

— AM —

have an agency of the state enjoined from taking a step that

would tend ‘‘to deprive [the local body’s] school students of

their constitutional right to attend nonsegregated schools,”’

Akron Board of Education v. State Board of Education of

Ohio, 490 F.2d 1285, 1288 (6th Cir.), cert. denied, 417 U.S. 932

(1974); cf. Washington v. Seattle School District No. 1, 458

U.S. 457 (1982), but that is not our case. In our case the

claimant—an active participant in the same wrongs on which it

now bases its claim for indemnification—has sued solely in its

own right, just as the claimant in South Macomb did, and thus

is barred, as the South Macomb claimant was, by the principle

recognized in Dartmouth College and City of Trenton.

IV

Even if there were no question of the district court’s constitu-

tional authority to act in this case, we should not consider the

order before us a defensible exercise of the federal equity power.

It is true that judgments of the sort reflected in the order are

**inescapably particularistic,’’ but it is hard to quarrel with the

generalization that ‘“‘how the State... chooses to pay for busing

is, at least in the first instance, the business of the State ... rather

than the federal courts.’’ United States v. Board of School

Commissioners of City of Indianapolis, 677 F.2d 1185, 1190-91

(7th Cir.) (Posner, J., dissenting), cert. denied, 459 U.S. 1086

(1982). ‘*My contention that the financing issue ought to be left

to the state to resolve,’’ Judge Posner went on to explain in that

dissent, ‘‘derives from the nature of our federal system, which

implies that interventions by federal courts into the processes of

state government Ought to be minimized, but more simply from

traditional notions of equity jurisprudence.’’ 677 F.2d at

1191-92. We agree.

The ‘‘nature of our federal system”’ itself suggests that a

federal court of equity, in the exercise of its sound discretion,

ought to refrain from making policy decisions on the extent to

which the financing of local school systems will be assumed by

eC

— A-25 —

the taxpayers of the state at large. The one who pays the educa- _

tional piper generally gets to call the educational tune, as many

thoughtful and well qualified observers have argued (see

Rodriguez, 411 U.S. at 52 n.109)—and as the Supreme Court

said in Milliken I,

**No single tradition in public education is more deeply

rooted than local control over the operation of schools;

local autonomy has long been thought essential both to the

maintenance of community concern and support for public

schools and to quality of the educational process. See

Wright v. Council of the City of Emporia, 407 U.S., at

469, 33 L.Ed.2d 51. Thus in San Antonio School District

v. Rodriguez, 411 U.S. 1, 50, 36 L.Ed.2d 16, 93 S.Ct. 1278

(1973), we observed that local control over the educational

process affords citizens an opportunity to participate in

decision-making, permits the structuring of school pro-

grams to fit local needs, and encourages ‘experimentation,

innovation, and a healthy competition for educational ex-

cellence.’ ’’ 418 U.S. at 741-42.

For the federal judiciary to take upon itself the job of limiting

the degree to which local schools may be locally financed is to

assume responsibility for policy decisions likely to have serious

ramifications, even if the judiciary’s ability to predict the nature

of those ramifications is not likely to be very good. Equitable

considerations ought to counsel caution here, whether constitu-

tional considerations compel it or not.

The State of Tennessee already does, to be sure, exercise vary-

ing degrees of control over different aspects of the operation of

the public schools, as authorized by a state constitutional provi-

sion declaring that ‘‘[t]he General Assembly shall provide for

the maintenance, support and eligibility standards of a system

of free public schools.’’ Tenn. Const. art. XI, § 12. There is no

doubt that Tennessee could, if it wished, abolish every local

school district in the state and make every school a state school

a

— A-26 —

pure and simple, operated directly by the state and paid for

directly by the state. Tennessee has not gone that far, however;

it has chosen to “‘provide for the maintenance, support and

eligibility standards’’ by allowing the public schools to be

operated by local school boards, subject to certain state-set

standards, and to be financed primarily by local tax dollars, as

supplemented by state aid in amounts determined under for-

mulas adopted by the state legislature. Primary responsibility

for funding has been delegated to the counties: ‘‘The duties of

the county legislative body shall be ... to provide necessary

funds to enable [the] county board [of education] to meet all

obligations under the adopted budgets ....”” Tenn. Code Ann. §

49-2-101. The mere fact that the state legislature may go farther

than it has in controlling and paying for the schools hardly

means that the federal courts, in the exercise of their equitable

powers, Ought to tell the legislature what it must do in this

respect.

The fact that desegregation programs must be paid for by one

group of taxpayers or another tells us nothing as to who those

taxpayers shall be, and we know of no rule of equity capable of

explaining why the state legislature’s judgment on such a ques-

tion ought not be respected by the federal courts. As recently as

1980, interestingly enough, the district court explained that the

Metropolitan Government, the Metropolitan Mayor, and the

members of the Metropolitan Council had been joined as defen-

dants in this litigation nine years earlier ‘‘since they controlled

the purse strings from which money for increased transportation

must come.’’ 492 F.Supp. at 172 (emphasis supplied). Now,

long after de jure segregation has been abolished, the district

court concludes that the state has a ‘‘nondelegable duty to par-

ticipate’ in paying the cost of local school desegregation. 615

F.Supp. at 1148. The extent of that ‘‘nondelegable’’ duty of

fiscal ‘‘participation,’’ it turns out, is 60%—a degree of par-

ticipation for which the district court’s opinion provides no ra-

tionale whatever

’

ae:

To say that no more than 40% of the burden of paying for the

integration of the Metro schools may be delegated to the Metro

taxpayers is to voice a conclusion, not to give an intelligible

reason for that conclusion. Nothing in the district court’s opi-

nion explains why the elected representatives of all the people of

Tennessee should not be free to delegate to the taxpayers of

each school district the burden of paying 100% of the cost of

court-ordered programs designed to eliminate any vestiges of

segregation in that district. In the absence of any such reason,

we can only conclude that the district court abused its equitable

power in ordering that Metro be indemnified for 60% of its in-

tegration costs.

Courts of equity, moreover, do not leave their doors open to

prospective suitors forever. Metro and its predecessors failed to

assert any claim against their parental joint tortfeasor until a

decade after busing was ordered and a quarter of a century after a

this lawsuit was begun. We find it extremely difficult to recon-

cile the order appealed from with the policy considerations on

which the equitable doctrine of laches is based.

Under traditional notions of equity jurisprudence, finally,

equitable remedies imposed in consequence of a violation of the

law may ‘‘extend no farther than required by the nature and the

extent of ‘hat violation.’’ General Building Contractors Ass’n,

Inc. v. Pennsylvania, 458 U.S. 375, 399 (1982). The judicious

application of this ‘‘core principle,’’ as Justice Powell cailed it

in Austin Independent Scheel District v. United States, 429

U.S. 990 (1976) (Powell, J., concurring), is particularly impor-

tant when it is proposed that the remedial powers of the federal

courts be exercised ‘‘to restructure the operation of local and

state governmental entities.’’ Hills v. Gautreaux, 425 U.S. 284,

293 (1976). ‘‘[W]here mandatory segregation by law of the races

in the schools has long since ceased, [it is the duty of the courts]

to first determine whether there was any action ... which was in-

tended to, and did in fact, discriminate against minority pupils,

teachers, or staff.’’ Dayton Board of Education v. Brinkman,

— A-28 —

433 U.S. 406, 420 (1977). ‘‘[L]ocal autonomy of school districts

is a vital national tradition’’ [citations omitted], so ‘‘the case for

displacement of the local authorities by a federal court in a

school desegregation case must be satisfactorily established by

factual proof and justified by a reasoned statement of legal

principles’’ /d. at 410.

Here, as in Dayton, *‘mandatory segregation by law ... has

long since ceased.’’ The district court has nonetheless displaced

the judgment of the elected representatives of the people of Ten-

nessee—displaced their judgment not on the question of

whether segregation shall be permitted, but on the question of

how the cost of eliminating its lingering consequences shall be

defrayed. We would be hard put to explain why that ‘‘displace-

ment’’ of the people’s representatives is not, in substance, the

judicial counterpart of a declaration of marital law. It comes,

in this case, long after hostilities have ceased, and it is

‘*justified’’ by no ‘‘reasoned statement of legal principles’’ ex-

plaining why the imposition of mandatory segregation by past

generations should deprive this generation’s representatives of

the power to decide for themselves how the cost of righting that

great wrong shall be borne. It is simply not equitable for the

court unilaterally to rearrange the tax burdens of the people of

Tennessee without setting forth a principled basis for doing so.

The district court’s order requiring the state to pay 60% of

Metro’s desegregation costs is REVERSED, and the case is

REMANDED to the district court with instructions to dismiss

the State, the state school board, and the state officials as third-

party defendants.

Ss

— >.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 85-5837/8

Robert W. Kelley, et al.,

Plaintiffs,

v.

Metropolitan County Board of Education of

Nashville and Davidson County, Tennessee, et al.,

Defendants-Third Party Plaintiff-Appellees,

Cross-Appellants,

Vs

State of Tennessee, et al.,

Third Party Defendants-Appellants,

Cross-Appeliees.

ORDER

(Filed: March 15, 1988)

BEFORE: ENGEL, NELSON and RYAN, Circuit Judges.

The Court having received a petition for rehearing en banc,

and the petition having been circulated not only to the original

panel members but also to all other active judges of this Court,

and no judge of this Court having requested a vote on the sug-

gestion for rehearing en banc, the petition for rehearing has

been referred to the original hearing panel.

The panel has further reviewed the petition for rehearing and

concludes that the issues raised in the petition were fully con-

sidered upon the original submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ John P. Hehman. Clerk

EE

— A-30 —

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case Nos. 85-5837/5838

Robert W. Kelley, et al.,

Plaintiffs,

VS.

Metropolitan County Board of Education of

Nashville and Davidson County, Tennessee, et al.,

Defendants-Third Party Plaintiffs-Appellees,

Cross-Appellants,

State of Tennessee, et al.,

Third Party Defendants-Appellants,

Cross-Appellees.

ORDER

(Filed: March 28, 1988)

Upon consideration, it is ORDERED that the motion to stay

issuance Of the mandate pending application to the Supreme

Court for writ of certiorari is hereby granted and the mandate is

stayed until 30 days from the file date of this order.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green, Chief Deputy

— oo

APPENDIX D

Robert W. Kelley, et al.,

Vv.

Metropolitan County Board of Fducation of Nashville &

Davidson County, Tenn ssee, et al.,

Vv.

State of Tennessee; Lamar Alexander, Governor of the

State of Tennessee; Robert L. McElrath, Commissioner of

Education; and State Board of Education.

Nos. 2094, 2956.

United States District Court,

M.D. Tennessee,

Nashville Division.

Aug. 14, 1985.

In school desegregation action, city and county sought in-

junction prohibiting State from continuing to refuse to par-

ticipate in desegregation process and ancillary orders directing

State to provide funds to assist city and county in carrying on

desegregation plan ordered by the court. The District Court,

Wiseman, Chief Judge, held that: (1) state officials would be en-

joined from further refusing to carry out their affirmative, con-

tinuing duty to eliminate vestiges of segregation, and (2) pur-

suant to injunction, State would be ordered to assume 60% of

costs of desegregation program.

Motion granted.

MEMORANDUM

WISEMAN, Chief Judge.

The City of Nashville and surrounding Davidson County

have struggled with desegregation since 1956. Social and

political turmoil created by the issue have made the process par-

— A-32 —

ticulary arduous — and in recent years expensive. Between 1971

and 1982, Metropolitan Nashville and Davidson County

[Metro] spent approximately $20,000,000. to desegregate its

public schools, with an estimated annual recurring cost (as of

1982) of $6,000,000.

Until today, Metro Nashville has gone it alone. The State of

Tennessee has viewed desegregation strictly as a local matter.

The Court now rules that State officials shall be enjoined from

further refusing to carry out their affirmative, continuing duty

to eliminate the vestiges of segregation which Tennessee’s own

constitution, statutes, policies and practices created and main-

tained during the last one hundred years. Pursuant to the in-

junction, the court orders the State to assume sixty percent

(60%) of the costs of the desegregation program in

Metropolitan Nashville and Davidson County.

The Court grants the motion for partial summary judgment

of third party plaintiff Metropolitan County Board of Educa-

tion of Nashville and Davidson County. Fed.R.Civ.P. 56.

Jurisdiction

[1,2] The Court proceeds under 28 U.S.C. §1343 and 2201 to

adjudicate issues arising under the Civil Rights Acts, 42 U.S.C.

$1983 and 1985. The Eleventh Amendment does not bar the ac-

tion since third party plaintiffs seek to enjoin state officials

from refusing to conform their conduct to well-established con-

stitutional standards. Ex parte Young, 209 U.S. 123, 28 S.Ct.

441, 52 L.Ed. 714 (1908). The Court is vested with legal

authority to decide the merits of the claims against these of-

ficials and to issue such ancillary orders as equity deems

necessary to enforce the injunction. Bradley v. Milliken, 540

F.2d 229, 245-46 (6th Cir. 1976), aff’d, 433 U.S. 267, 97 S.Ct.

2749, 53 L.Ed.2d 745 (1977).

Facts

This case has proceeded before this Court since 1956. The

facts are long and detailed. For purposes of the current issue,

— A-33 —

the Court confines its consideration to the conduct of state and

county officials in carrying out the mandate of Brown v. Board

of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954),

which ordered the end of state-imposed segregation and

directed states to desegregate public schools ‘‘with all deliberate

speed.’”'

The issue presented is whether the undisputed facts

demonstrate that the State of Tennessee is a ‘‘constitutional

wrongdoer’’ culpable for the continuing effects of state-

imposed segregation and is therefore subject to an injunction

and ancillary order directing the State to share in the costs of

desegregating Metro schools.

The Thirteenth, Fourteenth and Fifteenth Amendments

represent the end of a century of slavery throughout the South.

Despite Congress’ enactment of the Civil Rights Acts, 42 U.S.C.

$1981, ef seqg., to protect blacks against unfair treatment by

state officials and to assure them the rights and privileges

guaranteed to all persons within the United States, enforcement

of the Jim Crow laws through the mid-1960’s diminished the

rights of blacks, segregating them from other American citizens

and limiting their opportunities to obtain quality education,

housing, and medical care.

In 1954 the Supreme Court, recognizing the inequitable posi-

tion of the nation’s minorities, declared an end to the

‘*separate, but equal’’ policies practiced by many states. Brown

v. Board of Education, 347 U.S. 483, 74S.Ct. 686, 98 L.Ed. 873

(1954). In 1955, Chief Justice Warren, speaking for the Court

in Brown v. Board of Education, 349 U.S. 294, 299-201, 75

S.Ct. 753, 755-756, 99 L.Ed. 1083 (1955) (Brown II), directed

school authorities to devise and implement policies to assure the

A more detailed review of the history of this case appears in an

earlier opinion by this Court. See Kelley v. Board of Education, 492

F.Supp. 167 (M.D.Tenn. 1980).

Ce

— = ee

admission of all students to public schools on racially non-

discriminatory bases at the earliest practicable date.

The Brown decision had an immediate impact in Tennessee.

At the time Brown was decided, the fennessee Constitution

mandated separation of the races in public schools. Article XI

$12 provided in relevant part:

No school established or aided under this section shall

allow white and negro children to be received as scholars in

the same school.

The Tennessee Supreme Court struck down the provision as un-

constitutional in 1956. Roy vy. Brittain, 201 Tenn. 140, 297

S.W.2d 72 (1956). The State of Tennessee held four constitu-

tional conventions between 1959 and 1978. Despite the Brittain

Court’s ruling, the provision was not removed from Tennessee’s

official books until the fourth convention in 1978.

The Brown Ii directive created great apprehension

throughout many communities. Local school boards were par-

ticularly concerned about their responsibility to desegregate

schools. In response to numerous requests for advice and direc-

tion, Attorney General George McCanless issued an opinion let-

ter defining the State’s legai responsibility in implementing the

Brown II mandate and that of the local school boards. The

June 16, 1955, letter states:

Under the Code of Tennessee the management of the

public schools is solely the business of the local school

boards. These boards, within the limits of applicable law,

determine all of the local school problems. This has been

the law since the origin of the public school system in Ten-

nessee and is the law today. Under this state of the law it is

the responsibility of each local school board to determine

for itself the way in which it is going to meet the problem

of desegregating the schools under its jurisdiction.

— A-35 —

Each board must determine for itself, in light of all existing

applicable circumstances, (physical, fiscal, sociological,

transportation problems, etc.) when, where, how and to

what degree, the schools under its jurisdiction are to be

desegregated. This imposes upon each board the duty of

considering for itself its own course of action.

Local school boards which are sued by negroes seeking ad-

mission to schools under their jurisdiction must be

prepared to defend their own action determining the man-

ner in which their school shall be desegregated. It will be

necessary for legal counsel for defense of such suit to be

provided by the county, the city, or special school district

involved. While the office of the Attorney General is

aware of the problems that will confront the school boards

and is sympathetic with their problems, the office can do

no more than to advise with representatives of the boards

with respect to these problems as they arise. Under the

Constitution and the statutes of Tennessee, the office of

the Attorney General is limited to representation of the

state and of state officials with respect to state revenue and

other state matters. Counties, cities, and special districts

have always been required by law to provide their own

legal counsel in matters affecting them, and this has not

been changed because of the desegregation opinion;

however, within the limits of our ability and to the extent

permitted by the most favorable interpretation of the

statutes defining and regulating our duties, we stand ready

to furnish such advice and guidance as under the cir-

cumstances we can.

While, as indicated above, the State Department of Educa-

tion has no legal responsibility to determine the manner in

which the segregation problem will be dealt with in each

school district, there is much the Department can do by

way of correlation of information and other things which

will occur to you as the responsible head of that Depart-

ee

— A-36 —

ment. As aresult of conferences with you I know that you

intend to have the Department of Education do all that it

can within the framework of existing law to assist local

schools in the solution of their heavy and vexing problems.

The McCanless opinion letter established the State’s policy to

keep out the politics of desegregation, leaving local com-

munities to grapple with the issue. The State asserts in its brief

that the McCanless letter represents the State of Tennessee’s

policy on desegregation which continues today. Third Party

Defendant’s Motion for Summary Judgment, Memorandum at

7 (filed December 19, 1984).

The plaintiffs in this case filed their complaint on September

23, 1955. The State was not named as a defendant.

Despite General McCanless’ 1955 statement that desegrega-

tion was purely a ‘‘local school problem,’’ in January of 1957,

the Tennessee legislature passed the parental preference statutes

permitting ‘‘voluntary segregation’’ of the races in public

schools. T.C.A. §49-3704 (1957); see Transcript of Debate on

House Bill 29 (1957), Exhibit D, Third Party Plaintiff’s Motion

for Summary Judgment (filed 12-19-84). In September of 1957,

this Court struck down the parental preference statutes; the

holding later was affirmed by the Sixth Circuit. Kelley v. Board

of Education, 270 F.2d 209, 230 (6th Cir.), cert. denied 361 U.S.

924, 80 S.Ct. 293, 4 L.Ed.2d 240 (1959). Ignoring the ruling, in

December of 1957, the Nashville School Board submitted a

desegregation plan to this Court grounded on the parental

preference statute and the principles of ‘‘voluntary desegrega-

tion.’’ This Court disapproved of the plan.

In 1960, a separate suit was filed seeking the desegregation of

Davidson County schools. Subsequently, in 1963, that suit was

consolidated with the original Nashville desegregation suit.

In 1971, Judge Morton entered a comprehensive order direc-

ting the desegregation of Metro Nashville and Davidson County

— A-37 —

schools. Kelley v. Board of Education, Nos. 2094, 2956, at 6

(M.D.Tenn. June 28, 1971); see aiso Kelley, 492 F.Supp. 167

(M.D.Tenn. 1980). The order constitutes a watershed event in

this litigation, finding that the separation of races in the public

schools was the result of a policy of de jure segregation. See

Kelley v. Board of Education, 687 F.2d 814, 815-16 (6th Cir.

1982). During 1971, this Court increasingly became concerned

over Metro’s ‘“‘half hearted’’ efforts to devise and implement an

effective program to desegregate its public schools. See 492

F.Supp. 167, 171. Ultimately, the Court found Metro to have

failed to act in good faith. See 687 F.2d at 816.

While Metro dragged its feet, the State of Tennessee did

nothing to facilitate the desegregation process. In 1972 the

legislature passed a bill providing that if a local school board

voluntarily adopted a transportation plan aimed at achieving

racial balance, the governor was authorized to order the with-

holding of all state funds from the local school board. T.C.A.

§49-6-2101(f) (1983). This is the law today. During the early

1970’s, State officials also adopted a number of anti-busing

resolutions.

The State of Tennessee along with a number of State officials

were joined as defendants in this case in 1981. Twenty-six years

had elapsed since the filing of the original complaint, and ten

years from Judge Morton’s entry of the 1971 comprehensive

order. The Metropolitan County Board of Education of

Nashville and Davidson County, Tennessee now seek (1) an in-

junction prohibiting the State from continuing to refuse to par-

ticipate in the desegregation process and (2) ancillary orders

directing the State to provide funds to assist Metro in carrying

on the desegregation plan ordered by this Court.

Issues

The State asserts three principal propositions which they

argue preclude issuance of the relief sought by the third party

plaintiffs.

— A-38 —

1. The State is not now and has not been a “‘constitutional

wrongdoer.”’ That is, the State claims that it has committed no

post-Brown acts that have adversely affected desegregation in

Nashville. Moreover, the State claims that the exercise of

federal jurisdiction over Nashville and Davidson County

schools has made State intervention into the local desegregation

program inappropriate and, as such, has absolved the State of

any affirmative duty that may have required them to participate

in the elimination of vestiges of state-imposed segregation.

2. The Eleventh Amendment bars the award of retrospective

or prospective relief against the state.

3. Plaintiffs are barred from relief by operation of both the

Statute of limitations to the equitable doctrines of laches and

unclean hands.

Discussion

A. The State of Tennessee is Obliged to Eliminate the

Vestiges of State-lmposed Segregation.

The State of Tennessee asserts that it cannot be held responsi-

ble for the costs of desegregating Metro schools because,

although admittedly a historical force imposing mandatory

segregation, it has been innocent of any culpable conduct since

the 1954 decision in Brown. The State argues that only upon a

showing of ‘‘direct impact’”’ of its policies or practices — either

in maintaining segregation or in inhibiting the desegregation ef-

forts — can the State be implicated and thereby held responsible

for desegregating Nashville’s schools.

[3, 4] This Court views the State’s responsibility quite dif-

ferently from the view adopted by state officials. A state is

obliged to do more than merely abandon its prior

discriminatory conduct. Dayton Board of Education v.

Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d

720 (1979) (Dayton II). A state which initially creates a dual

system of education for its citizens has a continuing, affirmative

oe =

duty to eradicate all the lingering effects of its pro-segregation

efforts. Reed v. Rhodes, 500 F.Supp. 404, 424 (N.D.Ohio

1980), aff'd 662 F.2d 1219 (6th Cir. 1981) cert. denied, 455 U.S.

1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982); United States v.

State of Missouri, 363 F.Supp. 739, 747 (E.D.Mo. 1973), aff’d

in relevant part, 515 F.2d 1365 (8th Cir. 1975), cert. denied, 423

U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975); Liddell v. Board

of Education of City of St. Louis, 491 F.Supp. 351, 359

(E.D.Mo. 1980) 667 F.2d 643 (8th Cir.), cert. denied 454 U.S.

1081, 102 S.Ct. 634, 70 L.Ed.2d 614 (1981) (subsequent citation

history omitted). Contrary to the position of the State, when it

became necessary for this Court to step in and supervise the

dismantling of the dual system, the presence of the Court did

not end the obligation of the State to participate in eliminating

segregation — it merely limited the State’s discretion in direc-

ting the overall process. The limitation did-not release the State

from its constitutional and statutory duty to end the

discriminatory system it had created and maintained for a

significant period of time and to take affirmative steps to

remedy the debilitating effects that resulted from the system.

B. The Eleventh Amendment Permits this Court Both to En-

join Tennessee Officials from Refusing to Perform Their Con-

stitutional Duties and to Issue Appropriate Ancillary Orders

Aimed at Assuring Compliance.

1. The ‘Prospective Compliance’’ Exception to the Eleventh

Amendment

[S, 6] ‘‘The Eleventh Amendment does not prevent enforce-

ment of the Fourteenth Amendment....’’ United States v. Board

of Education of the City of Indianapolis, 503 F.2d 68, 82 (7th

Cir. 1974), cert. denied 421 U.S. 929, 95 S.Ct. 1654, 44 L.Ed.2d

86 (1975); Bradlew v. Milliken, 540 F.2d 229, 244 (6th Cir.

1976), aff'd 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977).

Federal courts are empowered to enjoin state officials from act-

ing in a manner that violates federal constitutional or statutory

— oe

law or from failing to carry out an affirmative duty imposed

under federal constitutional or statutory provisions. Ex parte

Young, 209 U.S. at 160, 28 S.Ct. at 454. As discussed below,

the undisputed facts presented before the Court establish as a

matter of law that state officials have failed to carry out their af-

firmative legal obligation to eradicate the lingering effects of

state-imposed segregation and are therefore liable for a continu-

ing violation of the Fourteenth Amendment rights of the black

citizens of Metropolitan Nashville and Davidson County. The

Court deems it appropriate to issue an injunction enjoining

state officials from further refusing to carry out their affir-

mative obligations and to issue such ancillary orders as are

necessary to ensure proper compliance with the injunctive relief

ordered.

{7, 8] Well established principles of federal law recognize the

authority of this Court to issue the ordered relief. The Eleventh

Amendment provides:

The Judicial power of the United States shall not be con-

strued to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of

another State or by Citizens or Subjects of any foreign

State.

The Amendment constitutionalizes-the doctrine of sovereign

immunity of the states, imposing a constitutional limitation on

the federal judicial power established under Article III of the

Constitution. Pennhurst State School & Hospital v. Halder-

man, 465 U.S. 89, ___, 104 S.Ct. 900, 906, 79 L.Ed.2d 67, 77

(1984). In the absence of a state’s consent, federal courts may

not entertain suits against a state or one of its agencies or

departments, or against a state official when the state is the

‘*real substantial party in interest.”’ Ford Motor Co. v. Depart-

ment of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89

L.Ed. 389 (1945).

[9] Third party plaintiff’s claims against the State of Ten-

nessee would be lost but for the saving grace of Ex parte Young,

ee

a

209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Young, the

Supreme Court recognized the ‘‘prospective-compliance’’ ex-

ception to the jurisdictional bar of the Eleventh Amendment,

permitting federal courts to enjoin ongoing conduct by a state

official that is in violation of federal law. The ‘‘fiction’’ of

Young holds that a state may not authorize an unconstitutional

action by its officers. Hence, for Eleventh Amendment pur-

poses, a state official is stripped of his official status and subject

to the consequences of his conduct when he acts in an unlawful

manner. Ex parte Yeung, 209 U.S. at 160, 28 S.Ct. at 454.’

2. Tennessee Officials Continue to Fail to Discharge the

State’s Duty to Assure the Desegregation of Metro Schools

The State of Tennessee argues that this Court lacks authority

to order injunctive relief against the State because none of its

officials currently is acting in violation of federal constitutional

or statutory law. The State admits that although prior to Brown

the State mandated strict separation of the races in public

schools, presently no officials are acting in a matter to inten-

tionally foster such segregation. The State argues further that

the duty to desegregate schools and to eliminate the lingering ef-

fects of past discrimination is solely an issue of local county

concern and, as such, the State has no present, affirmative duty

to participate in Metro’s desegregation program. The State

relies on the recent decision in Banas v. Dempsey, 742 F.2d 277

(6th Cir. 1984), cert. granted, sub nom., Green v. Mansour,

sncnien SD als , 105 S.Ct. 1863, 85 L.Ed.2d 158 (1985), for the

* Justice Stephens speaks of the Young fiction as a ‘‘well-recognized

irony’’ since an official’s unlawful conduct constitutes ‘‘state action”’

under the Fourteenth Amendment but not ‘‘state action’’ under the

Eleventh Amendment. Florida Department of State v. Treasurer

Salvors, Inc., 458 U.S. 670, 685, 102 S.Ct. 3304, 3315, 73 L.Ed.2d

1057 (1982) (Stephens, J., plurality opinion). See a/so Banas v. Demp-

sey, 742 F.2d 277, 284 n. 12 (6th Cir. 1984), cert. granted, sub nom.,

Green v. Mansour, ____ U.S. ___, 105 S.Ct. 1863, 85 L.Ed.2d 158

(1985).

— Adz —

proposition that in the absence of ongoing unlawful conduct,

federal district courts have no basis on which to issue an injunc-

tion since the requisite facts (warranting the Young prospective

compliance exception to the jurisdictional bar of the Eleventh

Amendment) are no longer present. Jd. at 286-87.

[10-13] Banas was a class action alleging that the State of

Michigan wrongfully had denied certain AFDC recipients

benefits by refusing to permit deductions appropriate under

federal law. After the suit was filed, but before the district

court ruled on the plaintiff’s motion for a preliminary injunc-

tion, Congress amended the Social Security Act, 42 U.S.C.

$602(a), with the result that Michigan’s actions, though im-

proper under former law, became legal. The Banas court held

that the Eleventh Amendment barred the court from issuing any

order requiring notice of any possible past unlawful state con-

duct to the putative classes. Congress’ amendment of the Social

Security Act legitimized Michigan’s actions, eliminating the

possibility for prospective relief in the suit. As a result, the

plaintiffs’ claims were only for relief for past harm — and

therefore barred. The Eleventh Amendment prohibits ‘‘the

award of an accrued monetary liability’? which represents

‘‘retroactive payments.’’ Edelman v. Jordan, 415 U.S. 651,

663-64, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). That is,

federal courts may only issue prospective relief against a State

or its officials; principles of sovereign immunity preclude the

award of relief for past wrongs. This Court finds that the un-

disputed facts demonstrate that State officials continue to deny

their responsibility to participate in Metro’s ‘‘local problem’’ of

desegregation. For purposes of Banas, this refusal constitutes

ongoing unlawful conduct — conduct which this Court has the

power to enjoin. The Court is empowered *v order the State to

share in the prospective costs of desegregation; however, the

Eleventh Amendment prohibits a retroactive award for costs

already sustained by Metro. The order is made effective from

March 16, 1981, the date on which the motion to implead third

party defendants was filed.

=< Ll

— A-43 —

a. Public Education is Primarily a State Function; Therefore,

Desegregation Requires the Formulation and Implementation

of State Public Policy

Contrary to the opinion of Attorney General McCanless,

segregation in county schools is not merely a local problem.

Public education is a state function, involving a delegation to

local officials the duty to administer the details of daily opera-

tions.

Since the inauguration of the present system of [Tennessee]

public schools, in 1873, it has never been even suggested

that the state and counties may have different systems and

schools, the state operating a state school, and the county a

county school, but the basic idea ts that the county may

supplement the state funds, so as to enlarge and improve

the state schools. . . . We are of the opinion that the

legislature . . . may as well establish a uniform system of

schools and a uniform administration of them, as it may

establish a uniform system of criminal laws and of courts

to execute them. The object of the criminal laws is, by

punishment, to deter others from the commission of

crimes, and thus preserve the peace, morals, good order,

and well-being of society; and the object of the public-

school system is to prevent crime, by educating people, and

thus, by providing and securing a higher staie of in-

telligence and morals, conserve the peace, good order, and

well-being of society. The prevention of crime, and preser-

vation of good order and peace, is the highest exercise of

the police power of the state, whether done by punishing

offenders or educating the children.

x* ** Kk KK *

[T]he schools, in which are educated and trained children

who are to become rulers of the commonwealth, are mat-

ters of state, and not local, jurisdiction; that in such mat-

ters the state is a unit, and the legislature a source of

aay’ yom

power; that the establishment and control of public

schools is a function of the general assembly, both under

the constitution and because it is a matter of state concern.

. Power thus asserted is exercised in a manner which is

not of common right, but which concerns institutions

founded and fostered by the state. The regulation, in its

entire scope, relates exclusively to the enjoyment of the

privilege afforded a system of education created and main-

tained by the state for the general good, and it must follow

that the state does have power to make the regulations ef-

fective by prescribing the method which shall be pursued

by those who seek to enjoy the privilege it has created.

Certainly, no one will deny the existence of such a right,

and, if it does exist, it must reside in the law making power

of the state.

Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899) (upholding

as constitutional the Tennessee Uniform Textbook Act). The

Leeper court’s analysis of the state’s authority over public

schools is as valid today as when it was spoken at the turn of the

century.

The~-Tennessee Constitution establishes the State’s central

role in public education.

EDUCATION’S INHERENT VALUE—PuBLIC SCHOOLS—SupP-

PORT OF HIGHER EDUCATION. — The State of Tennessee

recognizes the inherent value of education and encourages

its support. The General Assembly shall provide for the

maintenance, support and eligibility standards of a system

‘of free public schools. The General Assembly may

establish and support such post secondary educational in-

stitutions, including public institutions of higher learning,

as it determines.

(emphasis added). Tennessee Const. Art. XI, §12 (amended

March 31, 1978). Title 49 of the Tennessee Code addresses

public education within the State of Tennessee. Its thirteen

ay | ee

chapters illustrate the control state officials exert over local

school matters. For example, the State regulates teacher com-

pensation and advancement under the ‘‘master teacher’’ pro-

gram; it approves the location of new school facilities, and fre-

quently prescribes the curriculum offered in schools.

Counties do not operate their own, autonomous schools;

rather, local districts operate state schools at the direction and

- for the benefit of the state, serving those children who reside

within their jurisdictional boundaries. Matters which affect the

educational milieu in a local school district are matters of state

concern. Desegregation certainly is one such matter. General

McCanless’ opinion letter declaring the State shall stay out of

the ‘‘local problem’’ of desegregation establishes a policy to

delegate fully the State’s responsibility to formulate and achieve

a solution.

b. The State Deliberately Has Refrained From Participating

in the Desegregation of Public Schools.

[14, 15] The State has the nondelegable duty to participate in

the desegregation of local schools. State officials have ab-

dicated that duty. The violation continues today. Placing ail

consideration of the State’s post-Brown conduct aside, this

Court believes that State action prior to 1954 — in mandating

strict separation of the races in public schools — serves, in and

of itself, as a sufficient basis on which to find the State responsi-

ble for eliminating the continuing effects of racial discrimina-

tion. The decision by Tennessee to cease its official discrimina-

tion against blacks in light of Brown did not eliminate the

debilitating effects created by generations of segregation. The

effects continue today. Milliken v. Bradley, 433 U.S. 267,

287-88, 97 S.Ct. 2749, 2760-61, 53 L.Ed.2d 745 (1977) (“‘[p]upil

assignment does not automatically remedy the impact of

previous, unlawful educational isolation; the consequences

linger and can be dealt with only by independent measures’’).

There exists numerous post-Brown acts, however, that

demonstrate the State’s refusal to discharge its duty to par-

Se

ticipate in the desegregation of Metro schools. The Sixth Cir-

cuit Court of Appeals has set forth a five-part test for determing

whether a state has intentionally supported a segregated schools

system. In Penick v. Columbus Board of Education, 583 F.2d

787, 818 (6th Cir. 1978), aff'd 443 U.S. 449, 99 S.Ct. 2941, 61

L.Ed.2d 666 (1979), the court remanded the case to the district

court to make more detailed findings of fact concerning:

1. The State School Board’s knowledge (if any) of the

{local school board’s] intentional segregative practices;

2. The State Board’s failure to protest or restrain [the local

board] by withholding funds,

3. The State Board’s continuance of support in face of

such knowledge,

4. The motivation of the State Board in failing to in-

vestigate the reasons for de facto segregation, and

5. The effect of findings, if any, under 1, 2, 3 and 4.

Applying the Penick test to the undisputed facts presented

by the parties the Court makes the following findings: following

the original decision in Brown, the local boards looked to the

State Department of Education for guidance, only to be rebuff-

ed and cast adrift by Attorney General McCanless’ letter of

June 16, 1955. Faced with the Supreme Court mandate to

desegregate its public schools, the State abdicated its respon-

sibility, placing the onus upon each individual school district.

Rather than coordinating, the State created chaos. General Mc-

Canless was correct in stating ‘‘[The local school boards],

within the limits of applicable law, determine all of the local

school problems.’’ That is to say, the local school boards could

do whatever they desired so long as their actions comported

with state law on the subject. For example, a local school

district currently faced with the ‘‘local problem”’ of segregated

schools may voluntarily pursue a desegregation policy so long as

the program does not ‘‘use or authorize the use of any school

— A-47 —

transportation facility for the purpose of achieving a racial

balance . . . in any school by requiring the transportation of any

student or pupil from one schoo! to another or from one school

district . . . to another.’” T.C.A. §49-6-2101(f)(1). Statutory

prohibition of the principal remedial approach to desegregation

of public schools illustrates the State’s involvement in the

‘‘local’’ issue of desegregation.

More fundamentally, however, this Court does not believe

that state-imposed segregation is merely a ‘“‘local school prob-

lem.’’ Mandated by the Tennessee Constitution and regulated

by Tennessee statutes, the dual system of public education was

wholly a product of State-inspired segregation. General Mc-

Canless’ opinion letter established the State’s “‘hands ofi”’

policy. Yet, what the State characterizes as a federalism-based

respect for the jurisdiction of the United States District Court,

the Court views as a failure to discharge the affirmative respon-

sibility to participate in devising and implementing an ef fective

remedy. Burton v. Wilmington Parking Authority, 365 U.S.

715, 725, 81 S.Ct. $56, 861, 6 L.Ed.2d 45 (1961) (‘‘[nJo State

may abdicate its responsibilities by either ignoring them or by

merely failing to discharge them whatever the motive may

be.’’).

Acknowledging the less than good faith efforts of Metro

preceding the 1971 order, the Court nevertheless believes that

the State’s failure to assume a strong leadership roie promoting

desegregation has delayed the efficient implementation of

desegregation plans throughout the State and has fueled the in-

transigent attitudes held by many local school boards. Although

the Tennessee Supreme Court struck down the Tennessee con-

stitutional provision mandating separation of the races in public

schools in Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1956),

the State maintained the provisions on its books until 1978.

While the State had no authority to enforce the provisions, the

continued publication may be construed as an official statement

of State policy on the issue of desegregation. The 1957 parental

A-+s —

preference statutes, the statutory prohibition on voluntary bus-

ing and the numerous official antibusing resolutions reaffirm

the State’s lack of commitment to eliminate the vestiges of

discrimination in Tennessee.

The State was aware of the segregated conditions in Metro

schools and of Metro’s resistance throughout the 1960’s to

desegregation. The State did not protest nor threaten sanctions,

but continued for fund Metro and to pass legislation consistent

with Metro’s obstructionist spirit. The State, like Metro, simply

did not want to desegregate Metro schools through a busing

remedy—FeHowing a policy of abdication, the State has been

free to set up as many hurdles as possible to disrupt those school

districts either required by federal court order or voluntarily

choosing to desegregate their schools.

The Court concludes that the State of Tennessee has failed to

acknowledge its duty imposed under Brown and that State of-

ficials continue to refrain from discharging their constitutional

obligation to participate in the elimination of the vestiges of

state-imposed segregation. See Liddell v. Board of Education

of City of St. Louis, 491 F.Supp. at 359 (‘‘[i]Jn sum, the State

defendants stand before the Court as primary constitutional

wrongdoers who have abdicated their affirmative remedial

duty.’’).

3. Federal Courts Frequently Have Applied the ““Prospective

Compliance’’ Exception to School Desegregation Cases and

Have Ordered States to Share the Costs of Desegregation Plans.

(16, 17] ‘*A state which initially compelled or authorized the

creation of a local dual system has a continuing affirmative duty

to eradicate all lingering effects of segregation; the neglect of

that constitutional duty renders the state liable.”’ Reed vy.

Rhodes, 500 F.Supp. 404, 424 (N.D.Ohio 1980), aff'd 662 F.2d

1219 (6th Cir. 1981), cert. denied 455 U.S. 1018, 102 S.Ct. 1713,

72 L.Ed.2d 135 (1092). ‘‘{T]Jhe primary responsibility for insur-

ing a constitutional structure of public education is the state’s,

~—

. . it is appropriate for the Court to order the State to affir-

matively participate in remedial efforts . . . including the provi-

sion of funding, to the extent necessary, for desegregation

ordered by the Court. Liddell v. Board of Education, 491

F.Supp. at 360. In Reed, the Ohio State Attorney General and

state statutes mandated that the state school board participate

in the desegregation of local sthools. The school board was

found to have failed to do so and, in the light of its post-Brown

conduct, was held to have violated the rights of the plaintiffs.

The State was ordered to share in the costs of desegregation.

[18] This Court, having determined that State officials are in

violation of federal law, has the power to enjoin the continua-

tion of the conduct and to order the State to share in the

desegregation costs.

[I]n the event of a constitutional violation all reasonable

methods [are] available to formulate an effective remedy,

‘‘and that effort should be made by a federal court to

employ those methods to achieve the greatest possible

degree of relief, taking into account the practicalities of the

situation. .. . Once a right and a violation have been

shown, the scope of a district court’s equitable powers to

remedy past wrongs is broad, for breadth and flexibility

are inherent in equitable remedies.

Hills v. Gautreaux, 425 U.S. 284, 297, 96 S.Ct. 1538, 1546, 47

L.Ed.2d 792 (1976). Reviewing the operations of the state

school board in Penick v. Columbus Board of Education, 663

F.2d 24, 26 (6th Cir. 1981), the Sixth Circuit Court of Appeals

noted that unlike the other activities of the school board, the

board operated under a ‘“‘hands-off’’ policy with respect to

school desegregation. The court found that the state had failed

to exercise its power to facilitate the dismantling of the state-

created segregated systems and that the “‘incremental effect of

the State Board’s action and inaction [was] the total failure of

compliance with the constitution and laws of the United States

0

— A-50 —

and of Ohio in the performance of the duty to eliminate racial

segregation in the Columbus school system.’’ The circuit court

affirmed the district court’s order directing the state to share in

the loss of desegregating Columbus schools. See also United

States v. Indianapolis Board of School Commissioners, 677

F.2d 1185 (7th Cir.), cert. denied, 459 U.S. 1086, 103 S.Ct. 568,

74 L.Ed.2d 931 (1982) (ordering State to pay the entire cost of

desegregating Indianapolis schools). *

[19] While a state’s failure to act, in and of itself, may be in-

sufficient to support a finding of liability against a state, see

Reed v. Rhodes, 500 F.Supp. at 423 (citing cases), the un-

disputed facts presented by the parties in this case support the

finding that the creation and maintenance of the segregated

school systems in Metro Nashville and Davidson County are the

result, in part of the intentional conduct of the state officials.

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

413, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977). The culpabili-

ty of the State’s inaction is compounded by its active campaign

against busing. Such conduct has been counter-productive to

the desegregation efforts of local administrators and parents.

The State’s conduct in attempting to undermine the efforts of

Metro Nashville and Davidson County is to be distinguished

from those cases in which the state was held.not liable for the

segregated conditions in local schools. In A/exander v.

Youngstown Board of Education, 454 F.Supp. 985, 1074

(N.D.Ohio 1978), aff’d, 675 F.2d 787 (6th Cir. 1982), the court

held that because the /oca/-school board was held not liable for

intentionally segregating its schools, the state could not be

liable. Ohio officials’ failure to investigate and act on informa-

tion concerning racial imbalances, while supporting the in-

ference of intentional segregation, was held not to be a suffi-

cient basis for liability in light of the state’s other affirmative ac-

tions in attempting to secure the desegregation of the Youngs-

town schools. /d. Similarly, in Arthur v. Nyquist, 573 F.2d 134

(2d Cir.) cert. denied, 439 U.S. 860, 99 S.Ct. 179, 58 L.Ed.2d

— A-51 —

169 (1978), the State of New York was held not liable for the

segregated conditions in Buffalo schools. In that case, the

Commissioner of the Board of Education issued a policy state-

ment on desegregation directing local school districts to

eliminate dual systems and threatening to withhold funds for

those districts failing to comply. The commissioner’s subse-

quent failure to withhold funds from recalcitrant school

districts ultimately was held to be prudential in light of

legitimate policy concerns over unduly disrupting schools. /d.

at 146.

In comparison, in this case, the State did nothing constructive

ab initio. The State had knowledge of the existence of racial im-

balances in Metro schools and knew of Metro’s failure to comp-

ly with this Court’s orders to implement an effective desegrega-

tion remedy. Rather than assist this Court to aid Metro in

dismantling its dual system, state officials passed antibusing

resolutions, maintained segregation statutes and constitutionai

provisions on the books, and threatened to cut off funds to any

school system voluntarily imposing busing to alleviate racial

balances. In Nyquist, state officials were held not liable for fail-

ing to withhold state funds in light of their other affirmative ef-

forts to promote desegregation. Here, state officials have no

favorable light to reflect on their actions. No ‘‘legitimate policy

considerations”’ justify the State’s conduct.

[20, 21] The Eleventh Amendment does not bar this Court

from enjoining state officials from continuing to refuse to

discharge their duty to participate in the implementation of

desegregation in Metro schools. To assure compliance with the

injunction, the Court exercises its remedial authority to order

State officials to assist Metro in meeting the costs of eliminating

the invidious effects of past discrimination.

C. The Statute of Limitations Does Not Bar Metro from

Seeking an Injunction and Appropriate Orders Against the

State of Tennessee and Its Officials.

>

[22] The Court holds that the statute of limitations does not

bar the claims of Metropolitan Nashville and Davidson County

for injunctive relief against the State of Tennessee because (1)

the third party plaintiffs sue in their official governmental

capacity seeking relief as an arm of the State for the general

good of the population, and (2) the State is liable for a continu-

ing violation of federal law thereby staying the operation of the

statute of limitations period.

1. The Claim Pursued by Metropolitan Nashville and David-

son County Involves Conduct in the Discharge of a Public

Function Thereby Immunizing Third Party Plaintiffs from the

Operation of the Relevant Statute of Limitations.

[23] ‘‘Nullum tempus occurritt regi,’’ that is, the lapse of

time does not operate to bar the right of the state to pursue its

civil remedies. Williams vy. Cravens, 31 Tenn.App. 246, 214

S.W.2d 57, 59 (Tenn.App.) cert. denied (Tenn. 1948). In Ten-

nessee, actions for compensatory and/or punitive damages

brought under the federal civil rights statutes must be commenc-

ed within one year after the cause of action has accrued.

T.C.A. §28-3-104 (1980); Wilson v. Garcia, ___. U.S. ___,

___ ___, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254, 268-69

(1985) (holding that the applicable statute of limitations for

claims arising under the federal Civil Rights Act is to be deter-

mined by reference to the state statute of limitations for per-

sonal injury actions). The provisions of Title 28 of the Ten-

nessee Code (governing limitation of actions), however, do not

apply to bar actions brought by the State unless ctherwise ex-

pressly provided by law. T.C.A. §28-1-113 (1980).

[24] Political subdivisions of the State are not automatically

entitled to state immunity from the operation of the statute of

limitations. Only when a legal corporation, such as a

municipality or school board, acts as an agency and arm of the

State in executing a public function is that agency entitled to the

immunity provided under T.C.A. §28-1-113; Central Hospital

— A-53 —

for Insane v. Adams, 134 Tenn. 429, 183 S.W. 1032, 1033

(1916). In Adams, the Supreme Court of Tennessee held that

the Central Hospital for the Insane was not barred by the six

year statute of limitations in seeking to recover compensation

for care given a patient at the hospital. In ruling that the limita-

tions period did not operate to bar the claim, the Court held

that the care and custody of insane persons constituted the

discharge of a government-assumed duty, thereby cloaking the

institution with the sovereign immunity enjoyed by the State.

Id., 183 S.W. at 1034. Similarly, in Jennings v. Davidson

County, 208 Tenn. 134, 344 S.W.2d 359, 362 (1961), Davidson

County was permitted to pursue a claim against the estate of a

former patient who, though during treatment was a pauper, had

later inherited the modest estate of a relative. The Tennessee

Supreme Court held that the provision of medical care to the

poor is a public function carried on by local governments and

constituted the discharge of a state-assumed duty to the popula-

tion of all Tennessee.

The principle that political subdivisions of the state are, under

certain circumstances, entitled to the state’s sovereign immunity

when pursuing civil claims was reaffirmed recently in County of

Johnson, Tennessee v. United States Gypsum Company, 580

F.Supp. 284 (E.D.Tenn. 1984). In that case, the district court

held that the statute of limitations operated to bar the claims of

a county school board suing for damages resulting frm the in-

stallation of asbestos-containing acoustical and ceiling plaster

throughout county schouvls. The Cou:t reasoned that the

maintenance of the physical plant of county structures con-

stituted a purely local function of interest only to the local

population. /d. at 288-89.* Distinguishing a series of other Ten-

* This Court views the Johnson County case as setting forth the rele-

vant considerations for determining whether a political subdivision is

entitled to immunity from the statute of limitation. However, the

Court takes exception to the overbroad statement by the Johnson

County Court that “‘the authorities across the country virtually

unanimously hold, the operation of a school system is a particularly

local affair.’’ 580 F.Supp. at 290.

a.

nessee state cases in which local political subdivisions were en-

titled to immunity from the statute of limitations, the Court

held that the county in this particular situation was suing on

claims involving contract or property rights, rather than in a

governmental capacity for the benefit of the general public. /d.

See also Hamblen County v. Cain, 115 Tenn. 279, 89 S.W. 103

(1905); Shelby County v. Bickford, 102 Tenn. 395, 52 S.W. 772

(1899) (action by county to recover against a grantor on cove-

nant against encumbrances).

The maintenance of the physical structure and land of county

schools is a local concern and function. However, the provision

of public education, involving matters of curriculum, funding,

teacher qualifications and compensation, and other academic

considerations are state concerns, albeit often shared by local

officials. Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899).

See discussion, supra at pp. 1146-1148.

[25] This Court finds that Metro’s claims constitute claims

made as an arm of the state government regarding the discharge

of a state assumed public duty. Just as a political subdivision is

immune from the running of the statute of limitation for claims

involving medical care provided to the indigent or to the insane,

third party plaintiffs are entitled to immunity with respect to

claims arising from the provision of education to the young.

2. The State of Tennessee is Liable for a Continuing Viola-

tion of Federal Law Thereby Staying the Operation of the

Statute of Limitations.

[26] The vestiges of state-imposed segregation continue to be

present in Davidson County. State officials are under a contin-

uing obligation to act affirmatively to eliminate these

debilitating effects. Yet, the State continues to refrain, main-

taining that the issue of desegregation is one exclusively between

this district court and local officials. This Court views the

State’s conduct as malfeasance, indicative of a continuing viola-

tion of federal iaw, thereby staying the running of the relevant

statute of limitations.

— A-55 —

[27, 28] The statute of limitations begins to run from the date

of the injury, or if the injury is not apparent, from the time the

harm reasonably should have been discovered. However, when

the injury-causing activity continues over time, unabated, that

conduct is not legitimized by the passage of time. Unlike the

doctrine of adverse possession in real property law, ac-

quiescence to a continuing violation of constitutional rights

does not extinguish the individual’s rights. The failure of the at-

torneys for the various parties in this case to pursue their civil

remedies against the State of Tennessee during the asserted

statute of limitations period does not constitute a waiver of

those rights and will not insulate the State from legal liability.

D. Principles of Equity Do Not Bar Third Party Plaintiffs

from Pursuing their Legal Remedies.

1. Laches.

This case was filed in 1955 and a comprehensive desegrega-

tion order entered in 1971. Nevertheless, the State of Tennessee

was not joined as a defendant until 1981. The State argues

therefore that the doctrine of laches should bar the award of

any relief against it. The Court disagrees.

[29, 30] Mere delay is insufficient to justify the operation of

laches. The doctrine requires both delay and injury. Williams

v. Cravens, 31 Tenn.App. 246, 214 S.W.2d 57, 60 (Ct.App.),

cert. denied (Tenn. 1948). The State has failed to allege any

consequence that the Court reasonably can consider to have in-

jured or prejudiced the interest of the State as a result of other

parties’ failure to have joined the State at an earlier date. In

seeking to invoke the doctrine of laches, the State calls upon the

Court to exercise its powers in equity. Accordingly, the Court

will consider the dictates of fairness and justice and will evaluate

all factors in determining whether relief should be barred

against the State.

The State created and maintained a system of segregation be-

tween the races since statehood. That system remained in place,

—

officially, through 1954. Even assuming delinquency on the

part of other parties in this case in failing to join the State until

1981, fairness dictates that the actor primarily responsible for

the discriminatory system should bear some responsibility for

remedying the system’s invidious consequences.

Finally, the racial minorities in Tennessee are, for the most

part, concentrated in urban centers. Recognizing the affir-

mative legal obligation to eliminate the vestiges of state-imposed

segregation, it is unfair to call only upon urban dwellers to bear

the expenses of desegregation. The remedy should be carried

Out at the expense of all Tennesseans, both those residing in the

cities and those who live in rural areas.

2. Unclean Hands.

The State asserts that in view of Metro Nashville and David-

son County’s recalcitrance in failing to comply with the Court’s

order to desegregate local schools, the State should not be forc-

ed to share in the cost of desegregating Nashville schools. The

Court notes that the State likewise has been less than en-

thusiastic about the prospects of desegregation. The failure to

remove the State’s unlawful constitutional and statutory provi-

sions mandating segregation and its passage of statutory provi-

sions authorizing the cutoff of funds to local school districts

voluntarily desegregating schools through busing reflects con-

duct taken in less than good faith, vis-a-vis the state’s affir-

mative obligation to eradicate the effects of past discrimination.

[31] If an equitable doctrine is to apply at all, the Court

would look to the principles of in pari delicto. That is,

recognizing that both Metro and the State have been culpable of

acts taken in bad faith, as between the two, the State is just as, if

not more, subject to condemnation for its conduct. The Court,

however, refrains from assessing the relative reprehensibility of

the conduct of the defendants in this action. Rather, it holds

that whatever bad deeds Metro may be responsible for, that

conduct will not operate to bar the State from sharing in its

— A-57 —

responsibility to desegregate Metropolitan Nashville and David-

son County schools.

E. Relief.

The Court hereby enjoins the State officials and the State of

Tennessee from refusing to carry out their affirmative obliga-

tion to participate in eliminating the vestiges of past discrimina-

tion and to participate in the desegregation of Metro Nashville

schools. Pursuant to the injunction, the Court directs the State

to pay sixty percent (60%) of the costs directly attributable to

the desegregation program. Directing payment of state funds is

a necessary consequence of compliance in the future with a

substantive federal-question determination.’’ Edelman v. Jor-

dan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974);

Milliken v. Bradley, 433 U.S. 267, 289, 97 S.Ct. 2749, 2761, 53

L.Ed.2d 745 (1977).

The relief ordered today complies with the standards set forth

by the Eighth Circuit Court of Appeals in Liddell v. State of

Missouri, 731 F.2d 1294, 1305-09 (8th Cir. 1984), cert. denied,

2. , 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), for

evaluating the boundaries of the remedial power of federal

district courts in devising relief ordered against State officials in

school desegregation cases. The Lidde// court set forth three

considerations: (1) the remedy must be closely tailored to the

nature and sccpe of the violation; (2) the remedy must seek to

restore the victims of discrimination as nearly as possible to the

position they would have occupied absent the discrimination;

and (3) the order must not unduly infringe on state or local

government autonomy.

This Court concludes that the order in this case directing the

State to assume part of the costs of desegregating Metro

Nashville schools is responsive to the constitutional violations

and injuries that have occurred. The infusion of state funds in-

to the Metro desegregation effort will permit Metro to offer

those remedial programs which currently are part of the com-

— A-58 —

prehensive remedial plan but presently are not offered because

of insutficient funding. The effects of past discrimination con-

tinue to be manifested in many school age black children in

terms of levels of performance on standardized testing, develop-

ment of effective communication skills, and the ability to earn

high school and higher education degrees. The present desegre-

gation plan seeks to ameliorate these conditions. The payment

of State funds to finance the remedial programs seek to improve

the educational opportunities for black children so as to permit

them to achieve a level of academic performance that

reasonably could be expected had the black population not have

been subjected to long term segregation in public education.

Finally, the Court believes that the impact on the state treasury

will not unduly infringe on the state’s ability to carry on tradi-

tional state functions. The remedy is not intrusive on the

autonomy of state officials to exercise discretion over state af-

fairs.

For these reasons, the Court grants the motion of

Metropolitan Nashville and Davidson County for summary

judgment.

a ae |

— A-59 —

APPENDIX E

Robert W. Kelley, et al.,

Plaintiffs-Appellants,

Vv.

Metropolitan County Board Of Education Of Nashville

And Davidson County, Tennessee,

Defendants-Appellees.

No. 81-5370.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 11, 1981.

Decided July 27, 1982.

Certiorari Denied Jan. 24, 1983.

See 103 S.CT. 834

Plaintiffs appealed from an order of the United States

District Court for the Middle District of Tennessee, 511 F.Supp.

1363, Thomas A. Wiseman, Jr., J., approving board of educa-

tion’s desegregation plan in a school desegregation action. The

Court of Appeals, George Clifton Edwards, Jr., Chief Judge,

held that: (1) the District Court improperly directed school

board to bring about a 15% minimum presence of either race in

each middle and high schoo! where the school system had a 68%

white and 32% black racial composition, in that the 68% white

and 32% black ratio should have been employed as the “‘star-

ting point’’ in the remedy-fashioning process; (2) the District

Court committed fundamental error in directing school board

‘“*to establish a system of K-4 or K-5 elementary schools of a

neighborhood character, all the while maximizing opportunities

for integration in a neighborhood setting’’ where such remedy

would leave elementary schools highly segregated; and (3) the

school board’s decision affirmed by the District Judge to con-

vert a high school into a middle school and to build a new com-

’

—_—r

prehensive high school was not based on clearly erroneous fin-

dings or founded in a racally discriminatory purpose.

Affirmed in part, reversed in part, and remanded.

Celebrezze, Circuit Judge, concurred in part, dissented in

part, and filed opinion.

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

Tenn., Jack Greenberg, James M. Nabrit, III, Bill Lann Lee,

New York City, for plaintiffs-appellants.

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

for defendants-appellees.

Before Edwards, Chief Judge, Jones, Circuit Judge and

Celebrezze, Senior Circuit Judge.

George Clifton Edwards, Jr., Chief Judge.

This much delayed school desegregation case is before this

court for review of a desegregation 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 o: the

United States Supreme Court. Milliken v. Bradley, 433 U.S.

267, 97 S.Ct. 2749, 53 L.Ed.2d. 745 (1977) (Milliken II) requires

our affirmance of the District Court on several issues. The cases

that require 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, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Green v. Coun-

ty Schol Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716

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

402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Keyes v.

School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d

548 (1973); Penick v. Columbus Board of Education, 583 F.2d

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

1363 (M.D. Tenn. 1981).

787 (6th Cir. 1978), aff'd, 443 U.S. 449, 99 S.Ct. 2941, 61

L.Ed.2d 666 (1979); Reed v. Rhodes, 607 F.2d 714 (6th Cir.

1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d

770 (1980); and last but not least, Kelley v. Metropolitan Board

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

1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (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

segregation 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, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979}

(Dayton II). No such inquiry is necessary in this case; Ten-

nessee’s history of de jure segregation is well-established.

In 1955, when litigation aimed at desegregating the Nashville

schools began, racial segregation was constitutionally and

statutorily mandated in Tennessee, and the School 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, 201 Tenn. 140, 297 S.W.2d 72 (1956), and in

1959 this court invalidated a new law allowing local school

boards to provide white, black and mixed schools, with atten-

dance to be determined by parental choice. Kelley v. Board of

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

mis |

— A-62 —

80 S.Ct. 293, 4 L.Ed.2d 240 (1959). The statutes thereafter were

omitted from the revised statutory compilation, with the com-

piler’s note stating the statutes had been omitied 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 until 1978 that Ten-

nessee’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 unconstitutional, 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 Nashville

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.

It was the School Board’s implementation of the i971 plan

that prevented effective desegregation, according to the District

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

732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34

L.Ed.2d 262 (1972), this court approved the 1971 HEW-drafted

desegregation remedy, which was based on Swann v. Charlotte-

Mecklenburg, supra, and which attempted to achieve desegrega-

tion through zoning. After the plan had been in effect for one

year, the Board petitioned for changes, claiming hardships had

arisen from the plan. The District Court emphatically rejected

the petition, finding the Board had not acted in good faith in

implementing the desegregation remedy. Thereafter, the Board

submitted proposals for construction and for a kindergarten

? 463 F.2d at 734.

— A-63 —

program using portables, which both were opposed by plaintiffs

as inconsistent with the approved plan. Plaintiffs later petition-

ed that the Board be held in contempt for its unsanctioned im-

plementation of the proposals. In 1978 the Board petitioned to

amend school attendance zones; plaintiffs then amended their

contempt petition.

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,

from the nonetheless good faith efforts of the School Board in

the implementaion 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). The ‘‘resegrega-

tion’’ 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 vy. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554

(1971).

‘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.

an eed om

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 approval.

Kelley yv. Metropolitan County Board of Education, 511

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

this order that is before me.

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 schc »ls or classes where the

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

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

socio-economically deprived children who suffer the continuing

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, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977).

Likew:se, 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

plaintiff’s 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 District Judge’s approval of the

‘‘Together We Can .. . Together We Will’’ program.

PL re

— A-65 —

PUPIL ASSIGNMENT COMPONENT-MIDDLE SCHOOLS

AND HIGH SCHOOLS

[i] In large measure, the pupil assignment components of this

plan do not withstand constitutional srutiny. 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.‘

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

U.S. 1, 23-25, 91 S.Ct. 1267, 1279-1280, 28 L.Ed.2d 554 (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 fact that no such objective was actually

achieved—tends to blunt that claim, yet in the opinion and

order of the District Court of December 1, 1969, we '

that court directing

“‘that efforts should be made to reach a 7!-2% .

in the various schools so that there will be no ba

contending that one school is racially different tron

the others . . . [t]hat no school [should] be operated

with an all-black or predominantly black student

body, [and] [t]hat pupils of all grades [should] be

assigned in such a way that as nearly as practicable

*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.

— A-66 —

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 variation

‘“*from that norm may be unavoidable.’’ This contains in-

timations 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 expres: finding, approved by the

Court of Appeals and not chziilenged here, that a dual

school system had been maintained by the school

authorities at least until 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-

*The final board plan left 10 schools 86% to 100% Negro and

yet categorically rejected the techniques of pairing and clustering

as part of the desegregation effort. As discussed below, the

Charlotte board was under an obligation to exercise every

reasonable effort to remedy the violation, once it was identified,

and the suggested techniques are permissible remedial devices.

Additionally, as noted by the District Court and Court of Ap-

peals, the board plan did not assign white students to any school

unless the student population of that school was at least 60%

white. This was an arbitrary limitation negating reasonable

remedial steps.

on et? ~

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.

We see therefore that the use made of mathematical

ratios was no more than a starting point in the process of

shaping a remedy, rather than an inflexible requirement.

From that starting point the District Court proceeded to

frame a decree that was within its discretionary powers, as

an equitable remedy for the particular circumstances. As

we said in Green. a school authority’s remedial plan or a

district court’s remedial decree is to be judged by its effec-

tiveness. Awareness of the racial composition of the whole

school system is likely to be a useful starting point in shap-

ing a remedy to correct past constitutional violations. In

sum, the very limited use made of mathematical ratios was

within the equitable remedial discretion of the District

Court.

(footnotes 7 and 9 omitted).

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

— A-68 —

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, 99 S.Ct. 2941, 61 L.Ed.2d 666 (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 stan-

dards. In accordance with those standards, the District Judge

will be required on remand of this case to determine the current-

ly 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 violations.”’

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

necessarily involve significant redrafting and restructuring.

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

recognition that there is no constitutional right to any ‘‘par-

ticular 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 suf-

ficient 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 propos-

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

templates 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.

Swann, supra 402 U.S. at 26, 91 S.Ct. at 1281 (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 school system.’

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

“‘reassigning students to achieve the greatest possible number of

desegregated 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 of

integration possible.

A directive to employ a racial balancing approach clearly is

anything but novel. 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, 93 S.Ct. 1355, 35 L.Ed.2d 586 (1973), ap-

proved the District Judge’s view that Swann required more “‘inten-

sified desegregation efforts’? for Memphis than a neutral geographic

zone assignment plan and his concomitant order of busing to achieve

racial balance. We stated:

It is thus clear that far from havng 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.

— ee

PUPIL ASSIGNMENT COMPONENT—GRADES K-4

[2] The District Court directed the Board ‘‘to establish a

system of K-4 or K-5 [kindergarten through fourth or fifth

grade] elementary schools of a neighborhood character, all the

while maximizing opportunities for integration in a

neighborhood setting.’’® The Board complied, and this plan

was approved by the District Court. This was fundamental er-

ror, unconstitutional under Brown v. Board of Education, 347

U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Green v. County

School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716

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

402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Keyes v.

School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d

548 (1973); Columbus Board of Education v. Penick, 443 U.S.

449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979), and Dayton Board

of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61

L.Ed.2d 720 (1979). All of these cases have held or implied that

the constitutional barrier to racially segregated schools applies

to all 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-

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 nc: 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, 88 S.Ct.

1689, 1694, 20 L.Ed.2d 716 (1968).

° 511 F.Supp. at 1371.

a

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:

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

discrimination, it might well be desirable to assign pupils to

schools nearest their homes. But all things are not equal in

a system that has been deliberately constructed and main-

tained to enforce racial segregation. The remedy for such

segregation may be administratively awkward, inconve-

’ 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

[74 S.Ct. 686, 691, 98 L.Ed. 873] (1954). When the environment

is largely shaped by members of different racial and cultural

groups, minority children can achieve their full measure of suc-

cess only if they learn to function in—and are fully accepted

by—the larger community. Attending 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 Dallas NAACP, 444 U.S. 437, 451

[100 S.Ct. 716, 723, 62 L.Ed.2d 626] (1980) (Powell, J., dissen-

ting).

Washington v. Seatle School District, —U.S. —, —, 102 S.Ct. 3187,

3196, 73 L.Ed.2d 896 (1982).

—

nient, 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

dismantle 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 segrega-

tion 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,”’ affir-

mative action in the form of remedial altering of atten-

dance zones is proper to achieve truly nondiscriminatory

assignments. In short, an assignment plan is not accep-

table simply because it appears neutral.

402 U.S. at 28, 91 S.Ct. at 1280.

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.*

* 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 require

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 a finding of unconstitutional segregation.”’

Washington v. Seattle School District, — U.S. —, 102 S.Ct. 3187, 73

L.Ed.2d 896 (1982). In so doing, the four dissenters cited with ap-

proval the case upon which this opinion strongly relies, Swann, supra.

— A-73 —

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

student transportation can be given for application to the

infinite variety of problems presented in thousands of

situations. Bus transportation has been an integral part of

the 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 education 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 assign-

ment of children to the school nearest their home serving

their grade would not produce an effective dismantling of

the dual system is supported by the record.

Thus we read Washington v. Seattle School District as unanimous

on the crucial issue in our present Nashvill2 case.

'' 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 Charlotie-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.

ea aaa —i‘isi‘CiwOCOiCiwSCiCiéCS

—

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 elemen-

tary 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

Charlotie 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 desegregation.

Desegregation plans cannot be limited to the walk-in

school.

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 subdivisions (1), (2), and (3) above. It hard-

ly 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 desegregation 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.

'? 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

— A-T§ =

Swann, supra at 29-31, 91 S.Ct. at 1282-1283.

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.’

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).

* 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, 577 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, 99

S.Ct. 3107, 61 L.Ed.2d 879 (1979), this court rejected a plan that ex-

empted first-graders from busing, saying, ‘‘To exempt first grade

students from busing would leave vestiges of segregation intact con-

trary to this Court’s mandate.’’ The District Court found that first

graders would be subject to ‘‘a high risk of failure’’ if forced to par-

ticipate 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 attend schools more than 95%

black. The District Judge had based his remedy on findings that at-

tending a school near home was important for young children and that

pairing would interfere with individualized instruction. The appellate

court held these reasons “‘legally insufficient.’’

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

the education disadvantages 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 402 U.S. at 15, 91 S.Ct. at 1275).

— A-16 —

In sum, while neighborhood schools may be desirable in a

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

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 Lee 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 stress-

ed 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, 96 S.Ct. 806, 46 L.Ed.2d 657 (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 recrea-

tional, 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, 101 S.Ct. 88, 66 L.Ed.2d

29 (1980); Anderson v. Dougherty City Bd. of Educ., 609 F.2d 225

(Sth Cir. 1980); Mills v. Polk County Bd. of Educ., 575 F.2d 1146 (Sth

Cir. 1978); United States v. Texas Ed. Agency, 532 F.2d 380 (5th

Cir.), vacated and remanded on other grounds, 429 U.S. 990, 97 S.Ct.

517, 50 L.Ed.2d 603 (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, 93 S.Ct. 3054, 37 L.Ed.2d 1044 (1973); and Flax

v. Potts, 464 F.2d 865 (Sth Cir. 1972), cert. denied, 409 U.S. 1007, 93

S.Ct. 433, 34 L.Ed.2d 299 (1972).

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

Metropolitan Branches of the Dallas NAACP, 444 U.S. 437, 100

S.Ct. 716, 62 L.Ed.2d 626 (1980) (opinion below at 572 F.2d 1010).

The Fifth Circuit had rejected the District Court’s 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

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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

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 distance studies that would explain

failure to use pairing and clustering or busing to eliminate the one-race

schools. The Supreme Court granted certiorari to consider ‘‘the need

to eliminate one-race schools through further busing,’’ however, the

writ was later dismissed as improvidently granted. Justices Powell,

Rehnquist and Stewart dissented from the dismissal, stressing a need

to affirm the District Court’s ‘‘sensitive’’ and ‘‘promising’’ plan. The

dismissal, however, indicates the remaining members of the court

disagreed. The withdrawal of certiorari suggests, particularly in the

face 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 possible the one-

race or virtually one-race schools and-to explain with ‘‘time and

distance studies’’ or by reference to ‘‘natural boundaries or traffic

patterns’’ why elimination is not feasible for any remaining schools.

‘© See Swann, supra 402 U.S. at 28, 91 S.Ct. at 1282.

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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 not advaned 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 491 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 there-

fore was unavailable to Judge Wiseman at the time his opinions

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 constitution

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