# Appendix — Metropolitan County Board of Education v. Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1672%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 487 U.S. 1206 ## Text 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. Metropolita [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1672%3A2. Public record. Not legal advice.