# Opposition Brief — Metropolitan County Board of Education v. Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1672%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 487 U.S. 1206 ## Text @ (sere Sef FILED No, 87-1774 MAY 97 1906 JOSEPH FSP AMC, 22. In The CLERK Supreme Court of the UnitedStates October Term, 1987 ne Vv METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., 2 Petitioners, vs. STATE OF TENNESSEE, et al., Respondents. fy Vv BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT fy. Vv W. J." Micuareut Copy* Attorney General of Tennessee JoHN Knox WALKuP Chief Deputy Attorney General Patricia J. CoTTRELL Deputy Attorney General MicuaeL W. CaTaLano Deputy Attorney General 450 James Robertson Parkway Nashville, TN 37219 (615) 741-1376 Attorneys for Respondents May 27, 1988 *Counsel of Record COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 or call collect (402) 342-2831 QUESTIONS PRESENTED 1. Whether the Eleventh Amendment bars the dis- trict court from ordering that funds be expended from the treasury of the state of Tennessee to indemnify the Metro- politan County Board of Education of Nashville and David- son County, Tennessee, for 60% of the desegregation costs for its public school system? 2. If not, then whether such relief would be an in- appropriate exercise of federal equity jurisdiction and an impermissible intrusion upon state legislative authority? ll TABLE OF CONTENTS Page QUESTIONS PRESENTED ene ee TABLE OF AUTHOR (i... iii STATEMENT OF THE CARS... eee 2 REASONS FOR DENYING THE WRIT .W. 9 I. Il. TI. CONCLUSION THE COURT OF APPEALS’ DECISION IN THIS INDEMNIFICATION ACTION THAT THE ELEVENTH AMENDMENT BARS METRO’S RECOVERY OF 60° OF ITS DE- SEGREGATION COSTS FROM THE STATE IS CONSISTENT WITH THE PRECEDENTS OF THIS COURT .....25eee THE HOLDING OF THE SIXTH CIRCUIT IN THIS THIRD-PARTY ACTION FOR IN- DEMNIFICATION DOES NOT CONFLICT WITH DECISIONS OF OTHER CIRCUITS IN DESEGREGATION CASES . 0 ... THE COURT OF APPEALS’ OPINION THAT IT WOULD BE AN INAPPROPRIATE EX- ERCISE OF FEDERAL EQUITY JURISDIC- TION AND AN IMPERMISSIBLE INTRU- SION UPON STATE LEGISLATIVE AU- THORITY TO REQUIRE THE STATE TO INDEMNIFY METRO FOR 60% OF ITS DE- SEGREGATION COSTS IS CONSISTENT WITH PRECEDENTS OF THIS COURT AND OTHER CIRCUITS 14 lil TABLE OF AUTHORITIES Pages Cases Crrep Akron Board of Education vy. State Board of Edueation, 490 F.2d 1285 (6th Cir. 1974), cert. denied 417 U.S. 932 (1974) ou. ante 19 Alabama v. Pugh, 438 U.S. 781 (1978) ..00000..... 15 Brown v. Board of Education, 347 U.S. 483 | ie etonanon 4,14 Brown v. Board of Education, 349 U.S. 294 (ne sian aAty 0 City of Knoxville v. State ex rel. Hayward, 1m Tenn. 159, 183 S.W.2d 465 (1939)... cae City of Trenton v. New Jersey, 262 U.S. 182 oie a eg Coleman v. Miller, 307 U.S. 433 (1939) 00000000. «16 Edelman v. Jordan, 415 U.S. 651 (1974) 10, 13 Ex Parte Young, 209 U.S. 123 (1908) ow. 9 Green v. Mansour, 474 U.S. 64 (1985) oo. 11 Jenkins v. State of Missouri, 807 F.2d 657 (Sth Cir. 1986) ee ee Sel 14, 16 Kelley v. Board of Education, 836 F.2d 986 A A ee ee passim Kelley v. Board of Education, 157 F.Supp. 272 Sepa, BOP 5) Kelley v. Board of Education, 3 Race Rel. L. Rptr. 651 (M.D. Tenn. 1958) aff’d, 270 F.2d 209, cert. denied 361 U.S. 924 (1959)... 5) Kelley v. Metropolitan Board of Education, 492 F.Supp. 167 (M.D. Tenn. 1980) 2000. 6 Kelley v. Metropolitan Board of Education, 615 F.Supp. 1189 (M.D. Tenn. 1985) oo 3, 4 lV TABLE OF AUTHORITIES Continued Pages Kelley v. Metropolitan Board of Education, 687 F.2d 814 (6th Cir. 1982) i ccccccccccceenenetdy 6, 7 Liddell v. Board of Education of the City of St. Louis, 667 F.2d 643 (Sth Cir. 1981, cert. denied, 454 U.S. 1081 (1982) ................. ut’, 17 Little Rock School District v. Pulaski County Special School District, 778 F.2d 404 (Sth Cir. 1985), cert. denied, 106 S.Ct. 292 (1986)...14, 19, 16, 17 Milliken v. Bradley, 483 U.S. 267 (1977)....9, 12, 13, 14 Milliken v. Bradley, 540 F.2d 229 (6th Cir. 1976)... 12 Papasan v. Allain, 106 S.Ct. 2932 (1986) 000000... = 10 Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d Fee oh I cris peta acioialceeeacnaiheaie Ae cme atmos 4 South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500 (6th Cir. 1986)... 16 United States v. State of Alabama, 791 F.2d MEO CAT 0 SOO ei ee 16 United States v. Texas Education Agency, 790 F.2d 1962, cert. denied 107 S.Ct. 874 (1986)... 44428 United States v. Board of School Commis- sioners of the City of Indianapolis, 677 F. 29d 1185 (7th Cir.), cert. denied, 459 U.S. ee ce 14, 16 Welch v. Texas Department of Highways & Public Transportation, 107 S.Ct. 29 (1987) 10 Williams v. Mayor of Baltimore, 289 U.S. 36 1.) ME AE OEM ae ereeN OI eee mR aie Te te ae 16 TABLE OF AUTHORITIES— Oruer AUTHORITIES: Tenn, Const., art. 18, $ 24... U.S; Comt. eene, Ai... U.S. Const. amend XIV ............ Tenn. Code Ann. § 49-3-315 ........ Continued Pages 19 No. 87-1774 In The Supreme Court of the United States October Term, 1987 — a O- ————— METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Pe titione rs, VS. STATE OF TENNESSEE, et al., Responde nts. O BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT > Vv The respondents respectfully request that this Court deny the petition fur writ of certiorari, seeking review of the Sixth Cireuit’s opinion in this case. That opinion is reported at 836 F.2d 986 (6th Cir. 1987) (Petition to re- hear and for rehearing en banc was denied on March 15, 1988). STATEMENT OF THE CASE This third-party action involves an attempt by a local governinental unit, the Metropolitan Board of Nashville and Davidson County, Tennesee (Metro), to have its sov- ereign, the State of Tennessee, indemnify it for a portion of the costs of court-ordered desegregation of Metro’s schools. This is not a desegregation action in which vic- tims of segregation seek relief. Rather, it is an attempt by a judicially-determined constitutional wrongdoer to escape the full burden of its actions and to shift a portion of that burden to the State, despite the bar presented by the Eleventh Amendment, and despite the limitations on the reasonable exercise of federal court equity jurisdiction. A. The Indemnification Action (Wefro v. State— 1981 to Present) The petition arises from a third-party action’ brought by Metro against the State of Tennessee, the State Zoard of Edueation and certain state officials (State)?. This indemnifieation action is an action for money to fund a IFor covenience and clarity, the third-party action (Metropolitan County Board of Education of Nashville and Davidson County, Tennessee, et al. v. State of Tennessee, et al.) which is the basis of the petition will be referred to as the “indemnification ac- tion.” The original litigation (Kelley, et al. v. Metropolitan Coun- ty Board of Education, et al.) will be referred to as the “desegre- gation action.” 2Pursuant to Rule 40.3 of the Supreme Court Rules Ned Ray Mc- Wherter has been substituted for Lamar Alexander as Governor of Tennessee, Charles E. Smith has been substituted for Robert L. McElrath as Commissioner of Education, and Sam Kennedy, Sr. and Robert Byrd have been substituted for Frank Gorrell and judge Paul Summers as members of the State Board of Education sued in their official capacities. portion® of the relief Metro has been ordered to provide to vietims of segregation in the desegregation action, A el- ley v. Metropolitan Board of Education, 687 F.2d 814 (6th Cir, 1982). On March 26, 1981, Metro (the defendant in the then 26 year old lawsuit involving desegregation of Metro’s schools), filed a third-party complaint against the State secking to have the State bear the cost of school desegre- gation in Nashville and Davidson County over and above the general support for its educational system which Metro already receives from the State. (Appendix, A-17). The State filed a motion to vacate the order making the state defendants parties on June 1, 1981. On March 9, 1983, the district court denied the State’s motion to vacate. (Appendix A-27). Both Metro and the State filed motions for summary judgment. On August 14, 1985, the district court entered an order requiring the State to pay 60% of the costs of Metro’s desegregation program from the date the third-party complaint was filed. Aelley v. Metropolitan Board of Education, 615 F.Supp. 11389 (M.D. Tenn. 1985). | On appeal by the State, the Court of Appeals for the Sixth Cireuit reversed the district court and ordered that judgement be entered in favor of the State. The court held that in this contest ‘‘about money’’, the Eleventh Amend- ment barred the indemnification action by Metro, a politi- 3In fact, the third-party complaint, as amended, asks that the State “indemnify’’ Metro for all costs and expenses incurred by Metro as a result of the Kelley litigation, including costs of the remedies ordered. (Appendix, A-5). cai subdivision of the State, against the State. The court further held that equitable considerations compel caution in judicial interference in policy and political decisions on how the costs of desegregation are distributed between a state and one of its own subdivisions. B. The Desegregation Action (Kelley v. Metro— 1955 to Present) After this Court’s decisions in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown 1) and Brown v. Board of Education, 349 U.S. 294 (1955) (Brown IT), on June 16, 1955 then Tennessee Attorney General George MeCanless issued an opinion letter to the Tennessee Com- missioner of Edueation which stated that, under Tennessee law, the timing, method, and implementation of school de- segregation was the responsibility of local school districts who must apply the law to the unique circumstances of their own situations. This letter formed the basis of the State’s policy on desegregation of public education.* On September 23, 1955, the desegregation action was filed against the Nashville City Board of Education by a group of black school children and their parents. No State defendants were named. On October 5, 1956, the Ten- nessee Supreme Court rendered its opinion in Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1956), holding that all state statutes mandating segregated public education (and, by necessary implication, the underlying State con- 4The Sixth Circuit noted that the policy of the State of Tennessee to let local school systems ‘pull the laboring oar in attempt- ing to eliminate the consequences of segregation” was not an evasion of state responsibility. Kelley, 836 F.2d at 994. The let- ter is quoted extensively in Kelley v. Metropolitan Board, 615 F.Supp. 1139, 1143 (M.D. Tenn. 1985). J stitutional provision as well) were invalid and must yield to the principles enunciated in Brown 3 Td. at 144. On January 21, 1957, the district court approved a plan submitted by the City Board for desegregation of Nashville’s first grade and ordered a plan for complete desegregation to be submitted by December 31, 1957. The Board submitted a plan grounded on the Parental Prefer- ence Statute which had been declared unconstitutional by the district court on September 1, 1957, despite a warning by the court not to do so. The plan was disapproved in Kelley v. Board of Education, 157 F.Supp. 272) (M.D. Tenn. 1958). In June of 1958, the district court approved a plan ‘alling for elimination of compulsory segregation in the second grade as of academi¢ years 1958-59, and in one addi- tional grade per year thereafter. Aelley v. Board of Edu- cation, 3 Race Rel. L. Rptr. 651 (M.D. Tenn. 1958) aff’d, 270 F.2d 209, cert. dented 361 U.S. 924 (1959). Suit v os filed to desegregate the Davidson County publie schools on December 19, 1960. Again, there were no State defen- dants named. On September 10, 1963, after adoption of metropolitan government- for Nashville and Davidson County, the city and county cases were consolidated by consent. In 1971, the district court, because of Metro’s ‘‘appar- ently half hearted efforts to devise a unitary school sys- SAgain, the Sixth Circuit noted the Tennessee Supreme Court's decision, and the fact that the system of de jure segregation was completely dismantled in the 1960s. The court specifically found that the ~‘state’s duty in this respect was discharged long before Metro filed its third-party complaint against the State.” Kelley, 836 F.2d at 994. 6 ’ tem that would encourage integration,’’ implemented a wide ranging plan, ineluding busing for desegregation purposes. See Kelley v. Metropolitan Board of Educa- tion, 492 F.Supp. 167, 171 (M.D. Tenn. 1980).6 In August, 1972, the district court issued a memorandum finding that Metro had not made a good faith effort to comply with the court ordered integration plan. After a hearing, the court noted the ‘‘consistent refusal of the school board and the City Council to provide an adequate number of school buses to implement effectively the plan of this Court. There is ample evidence that they are capable of doing so.’’ In effect, coneluded the court, Metro had ‘‘endeavored to accomplish indirectly what [they] cannot permissibly ac- complish directly—the frustration of this Court’s plan to establish a racially integrated school system.’’ (Appendix, A-41), In 1979, the district court, after hearings, ordered that Metro devise and submit to the court a new plan for de- segregation that would, among other things, involve the entire metropolitan county. The distriet court held ex- tensive hearings on plans submitted by the parties, begin- ning Mareh 3, 1980 and ending May 1, 1980. In an order dated May 20, 1980, the district court rejected plans pre- sented and ordered Metro to submit a new plan and gave specific directives based upon the court’s analysis of the specific burdens and benefits emanating from the ‘‘Swann- type remedy’’ ordered by the court in 1971. (Petitioner’s Appendix, A-122, 166). Subsequently, the Court of Appeals for the Sixth Circuit found that the Metropolitan School Board had not acted in good faith and had implemented the 1971 plan in a manner that actually prevented effective desegregation. Kelley v. Metropolitan Board of Education, 687 F.2d 814 (6th Cir. 1982). ~] 1981. The district court entered an order approving the Board’s The Board filed its new plan on January 19, plan on April 17, 1981. This order was clearly based upon the hearings held prior to the May 20, 1980 order,’ The plaintiffs appealed to the court of appeals, which by opinion dated July 27, 1982, affirmed in part and re- versed in part. In that proceeding before che Sixth Cir- cuit, the State was not included as a party. WAelley v. Metropolitan Board of Education, 687 F.2d 814 (6th Cir. 1982). On June 1, 1983, the district court, considering the ease on remand, entered an order and memorandum ap- proving a new plan submitted by the Board and agreed to by the plaintiffs. C. The Court of Appeals’ Decision (Metro v. State) The court of appeals’ decision which Metro seeks to have reviewed is based upon the unique factual situation and procedural posture of this case. The court pointed out that this third party action does not involve the rights of plaintiffs suing for relief from the effects of segregation and that those plaintiffs are receiving full relief. Kelley, 8386 F.2d at 989-990. The eourt correctly framed the issue presented, stating “the contest between Metro and the State of Tennessee is a contest not about desegregation, but about money.’’ Kelley, 836 F.2d at 990. 7In its memorandum opinion denying the State’s motion to va- cate the order joining the State defendants, the district court stated that the original order making State defendants parties “did not provide State defendants a meaningful opportunity to participate in the 1981 hearings.” (Appendix A-30). In its analysis of Eleventh Amendment principles and the ‘‘prospective compliance exception’’ in this case, the court once again recognized the unique situation pre- sented. It found three things: (1) the State ‘‘participa- ’ tion’’ ordered by the district court consisted solely of fi- nancial participation; (2) the order to pay money was ancillary to no other affirmative relief; and (3) the State officials were not currently doing anything wrong. Kelley, 836 F.2d at 990-991. In addition, the court held that the district court’s finding, coming 30 years after the institu- tion of the desegregation lawsuit, that the State ‘‘is a ‘eon- 99 stitutional wrongdoer’ is not supported by the record. ce ’ . Kelley, 836 F.2d at 995, The court further examined the role of federal courts, exercising their equitable jurisdiction, in disputes over money between a state and one of its political subdivisions. Again, the court’s examination was grounded in the par- ticular situation presented. The court particularly noted that Metro had failed to assert any claim against the State until ‘‘a decade after busing was ordered and a quarter of a century after this lawsuit was begun.’’ Kelley, 836 F.2d at 1000. The court recognized the authority of fed- eral courts to order integration, but also recognized the authority of the Tennessee legislature to determine how costs of desegregation, as well as other costs of education, should be funded. Kelley, 836 F.2d at 995-996. 9 REASONS FOR DENYING THE WRIT I. THE COURT OF APPEALS’ DECISION IN THIS INDEMNIFICATION ACTION THAT THE ELEVENTH AMENDMENT BARS METRO’S RECOVERY OF 60% OF ITS DESEGREGATION COSTS FROM THE STATE IS CONSISTENT WITH THE PRECEDENTS OF THIS COURT The Eleventh Amendment provides that the ‘‘Judi- cial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prose- cuted against one of the United States by citizens of an- other State, or by citizens or subjects of any foreign State.’’ This constitutional provision bars actions against States for the recovery of money; however, Metro argues that the prospective compliance exception to the Eleventh Amendment ‘‘has been utilized regularly in desegregation cases’’ and should not prohibit the monetary relief award. ed by the district court in this case. Petition for Writ of Certiorari, p. 17 (Petition). This position ignores a line of decisions of this Court Which limits the breadth of the prospective compliance exception? and misinterprets the holding of this Court in Mliken v. Bradley, 483 U.S. 267 (1977). 8The prospective compliance exception to the Eleventh Amend- ment was first enunciated by this Court in Ex Parte Young, 209 U.S. 123 (1908) in which this Court held that the Attorney Gen- eral of Minnesota was enjoined from enforcing a statute incon- sistent with the Fourteenth Amendment. *°Metro notes that the court of appeals “relies upon a number of cases which do not involve desegregation remedies nor the con- cept of continuing constitutional violation.” Petition, p. 18. (Continued on following page) 10 In Edelman v. Jordan, 415 U.S. 651 (1974), Chief Jus- tice Rehnquist rejected the argument that the Eleventh Amendment did not bar relief in the form of equitable restitution instead of money damages: We do not read Ex Parte Young or subsequent hold- ings of this Court to indicate that any form of relief may be awarded against a state officer, no matter how it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled ‘‘equitable’’ in nature. Id. at 666. See also Papasan v. Allain, 106 S.Ct. 2932 at 2941 (1986) (In determining whether particular relief is barred by the Eleventh Amendment, the court will ‘‘look to the substanee rather than the form of the relief sought.’’) In the present case, the fact that the district court fashioned the relief in equitable form is irrelevant when the substance of the entire relief against the State was indemnification of 60% of the costs of desegregation to Metro.'° Such relief is clearly barred by the Eleventh Amendment. (Continued from previous page) The fact that the original action against Metro is a desegregation case does not render the decisions of this Court relied upon by the court of appeals to be inapplicable. Where the relief af- forded against the State is solely the payment of money, such a remedy is barred by the Eleventh Amendment unless the State has waived its sovereign immunity or Congress has expressly abrogated that immunity through the Fourteenth Amendment. Welch v. Texas Department of Highways and Public Transporta- tion, 107 S.Ct. 29, 41 (1987). There is no dispute that the State of Tennessee has not waived its immunity nor is there any con- gressional enactment abrogating that immunity in this case. As the Sixth Circuit stated “the ‘participation’ mandated by the district court’s order is purely financial; the officials will not (Continued on following page) 11 Likewise, in Green v. Mansour, 474 U.S. 64 (1985) this Court stated that although ‘‘[rJemedies designed to end a continuing violation of Federal law are necessary to vindicate the Federal interest in assuring the suprem- acy of that law, ... compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.’’ [citation omitted] Jd. at 68. Contrary to Metro’s argument, the relief requested against the State is compensatory in nature. Metro seeks to be indemnified by the State for its alleged past wrongdoing with respect to the desegregation of the Nashville public schools. (Ap- pendix, A-14-15). The plaintiffs in the desegregation action have obtained complete relief.'' The relief afforded by (Continued from previous page) be in contempt of the court's order if they pay 60°/o of Metro’s desegregation costs out of the state treasury, and they will be in contempt if they fail to do so.” Kelley, 836 F.2d at 990. In this respect, the court of appeals stated the following: It bears emphasis that we are not here called upon to adjudicate the right of plaintiffs’ suing to obtain the equal education opportunities promised them in Brown v. Board of Education, 347 U.S. 483, 493 (1954). Those plaintiffs have long since won their case. They won it without ever having asserted a claim against the State. They are already receiving—through decrees that do no violence to the principle of sovereign im- munity—the full measure of relief to which they are entitled under the constitution. The issue before us is not whether the children in Metro’s schools will receive the benefits of the en- hanced educational program that the district court or- dered Metro to develop and implement . . . Metro makes no claim . . . that it is incapable of complying with educational components of the plan. Similarly, (Continued on following page) 12 the district court in this indemnification action is granted solely to Metro not the plaintiffs in the desegregation ac- tion. Sinee the plaintiffs have been afforded total relief in the desegregation action, no further relief is necessary to enforce their constitutional rights. Thus, the district court’s order that the State indemnify Metro for 60% of its costs incurred for desegregation is compensatory in nature and barred by the Eleventh Amendment. As for this Court’s decision in Milliken, the relief afforded against the State of Michigan was the require- ment that ‘‘the Detroit Board and the State put into effect certain comprehensive programs which were found to be essential to the suecess of the desegregation effort.’’ Milliken v. Bradley, 540 F.2d 229, 240 (6th Cir. 1976). The result of the order in the J/illiken case was to require the State of Michigan to conform its conduct to the constitu- tion by removing vestiges of segregation through the in- (Continued from previous page) the issue is not whether the school children will be transported in accordance 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 plan, we are told, has been fully implemented. Kelley, 836 F.2d at 989-990. Even Metro admits that it is “min- imally” funding the desegregation plan ordered by the court of appeals but complains that it has had to curtail educational programs to do so. Petition, p. 20. Metro’s funding concerns could be remedied at the local level by increasing revenues through alternatives such as tax rate adjustments, Tenn. Code Ann. § 49-3-315 (Supp. 1987) (Appendix A-1), or by using funds not now earmarked for educational programs. However, in- stead of accepting responsibilitiy for the cost of desegregation, Metro seeks to spread the cost of the desegregation of its schools upon all the taxpayers of the State by demanding reimburse- ment of its desegregation costs from the State. { stitution of specifie programs which had the ancillary effect of additional expenditure of State funds. Metro asserts that the State of Michigan was no more than a ‘‘recalcitrant financial participant’’ in the desegre- gation program. Petition, p. 19, fn. 16. This argument ignores the fact that the State of Michigan was an original defendant in the Milliken case when it was filed in 1970 and was required to do more than pay a portion of the de- segregation costs. For example, of the four educational components of the desegregatron plan for the City of De- troit, this Court noted that “the Detroit Board and the State Department of Education [were ordered] to insti- tute a testing program along the lines proposed by the local school board in its original desegregation plan.’’ Milliken, 483 U.S. at 276. In the case at bar, the State was not a defendant to the original desegregation action filed against Metro and was brought into this case as a third-party defendant by Metro more than 25 years after the original action was filed. More importantly, the only relief afforded against the State by the district court was the payment of money which is barred by the Eleventh Amendment.” 12This Court stated in the Edelman case that ‘‘we must judge the award actually made in this case, and not one which might have been differently tailored in a different case . ’ Edelman v. jordan, 415 U.S. at 665. In 1981, well into the remedial stages of this litigation, Metro sued the State as a third-party defendant to indemnify Metro for its costs of desegregation. Metro is bound by those facts and barred by the Eleventh Amendment from any recovery. 14 II. THE HOLDING OF THE SIXTH CIRCUIT IN THIS THIRD-PARTY ACTION FOR INDEMNIFICATION DOES NOT CONFLICT-WITH DECISIONS OF OTHER CIRCUITS IN DESEGREGATION CASES. Decisions of the Seventh and Eighth Cireunits cited by Metro are distinguishable from its present idemnification action to obtain after-the-fact funding from the State for its own court-ordered desegregation plans. See Jenkins v. State of Missourt, S07 F.2d 657 (Sth Cir. 1986); Little Rock School District v. Pulaski County Special School Dis- trict, T78 F.2d 404 (Sth Cir. 1985), cert. denied, 106 S.Ct. 292 (1986); Liddell v. Board of Education of the City of St. Louis, 667 F.2d 648 (Sth Cir. 1981), cert. denied, 454 U.S. 1081 (1982); United States v. Board of School Com- misstoners of the City of Indianapolis, 677 F.2d 1185 (7th Cir.), cert. denied, 459 U.S. 1986 (1982). Typically, the cited cases represent the efforts of in- dividual victims of discrimination or their representatives to have remedial plans instituted in school systems where the vestiges of racial segregation had been wholly ignored or actively perpetuated by local and state governments for decades after this Court's decision in Brown I. In the face of timely claims for immediate injunetive relief by actual victims, application of the prospective compliance exception to Eleventh Amendment immunity was hardly at issue.” Bin cases where victim-plaintiffs fit easily into the Milliken framework, lower court opinions devoted little or no attention to analysis of the Eleventh Amendment. However, a local school (Continued on following page) a ieee 15 This action has been aptly characierized by the court of appeals as ‘‘essentially a suit for the reeovery of money from the State’? by one of its political subdivisions. Kelley, 836 F.2d at 989. Cast in such a light, it is appar- ent that the issue of prospective relief for victims of dis- crimination is not the subject of this indemnification ac- tion. Because the issues in the cited desegregation cases are different from those in this indemnification action, there is no conflict among the circuits. Further distinguishing this indemmification action from the cited Seventh and Eighth circuit cases is Metro’s status in this litigation. Metro, an adjudicated constitu- tional wrongdoer, has belatedly attempted to dodge court imposed financial responsibility for its own desegregation plans by ‘stepping into the shoes’’ of victims and pointing a finger at the state, a non-party to the desegregation ac- tion.'* The court of appeals correctly determined that (Continued from previous page) district plaintiff attempting to recover from the State was not so automatically presumed to fit within the prospective relief exception. In the initial stages of the Little Rock case, where a school district was the sole plaintiff, the district court dis- missed the State as a defendant stating “The motion to dismiss the State of Arkansas must of course be granted. Injunctive re- lief could not be awarded the plaintiff against the state absent its consent to be sued. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), Little Rock School District v. Pulaski County Special School District No. 1, 560 F.Supp. 876 (E.D. Ark. 1983). 4MMetro’s self-serving statements regarding “stepping into the shoes” of the original Kelley plaintiffs, are an attempt to avoid long settled doctrine established by this Court that “Being but creatures of the State, municipal corporations have no standing to invoke .. . the provisions of the Fourteenth Amendment of (Continued on following page) 16 Metro is prevented by the Eleventh Amendment from so doing. None of the cases cited by Metro supports an ex- pansion of the limited prospective compliance exception to the Eleventh Amendment such that non-victims may in- dependently sue the state for money. ‘The additional fac- tor that Metro itself is a constitutional wrongdoer, further prevents its identification with victims of discrimination." From factual and historical perspectives, the cited cases depict a distinct pattern of long term state and local control over public schools which perpetuated racial segre- gation for decades after Brown. In each instance, claims of state involvement in interdistrict violations were pre- sented. In the /ndianapolis ease, the State of Indiana was found solely responsible for interdistrict violations. /n- dianapolis, 677 F.2d at 1187. Imposition of liability upon state defendants in the Little Rock case was based upon proof of active and continuing state interference (Continued from previous page) the Constitution in opposition to the will of their creator.” Coleman v. Miller, 307 U.S. 433, 441 (1939). See also Williams v. Mayor of Baltimore, 289 U.S. 36 (1933); City of Trenton v. New Jersey, 262 U.S. 182 (1922). This principle is recognized in the lower federal courts, see South Macomb Disposal Author- ity v. Township of Washington, 790 F.2d 500 (6th Cir. 1986); United States v. State of yr> swam 791 F.2d 1450 (11th Cir. 1986), and on the state level, City of Knoxville v. State ex rel. Hayward, 175 Tenn. 159, 133 S.W.2d 465 (1939). The Sixth Circuit opinion discusses and applies this principle, yet Metro does not address it. Kelley, 836 F.2d at 998. 51m Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986), where the Kansas City school district, along with individual plaintiffs, had originally filed suit against the State, the court of appeals af- firmed the district court’s realignment of the local school dis- trict as a defendant recognizing the local district’s conflict of in- terest with individual victims and lack of standing to sue the state. Id. at 682. 17 with housing and school facility placement as well as en- foreement of discriminatory laws perpetuating segrega- tion. Little Rock, 778 F.2d at 411-17, 423-27. In Liddell, the State of Missouri’s maintenance of a separate special district for vocational education within the St. Louis school district was found to be a factor contributing to segregation within the St. Louis system. Liddell, 667 F.2d at 651. In contrast, the Sixth Cirenit, having reviewed the record in this ease, found no proof of ongoing constitu- tional violations by the State of Tennessee. Kelley, 836 F.2d at 993-994. Furthermore, control over Metro de- segregation has been in the hands of the district court sinee 1957. Finally, the Sixth Cireuit’s decision is in fact con- sistent with that of the Fifth Cirenit. In an analogous ease, the Court of Appeals for the Fifth Cireuit held that the Eleventh Amendment barred a local school district’: attempt to recover money from the State to cover its de- segregation expenditures. United States v. Texas Education Agency, 790 F.2d 1962, cert. denied 107 S.Ct. 874 (1986). That the local school district could have moved to amend the district court judgment to adjudicate the State’s fault, but neglected to do so fer a period of years, was of par- ticular import to the decision reached. Like the Sixth Cir- cuit in the present indemnification action, the Fifth Cir- cuit rejected the suit as a ‘‘belated effort to recover costs which smacks of an attempted _end-run around the Texas legislature’s allocation of state funds.’’ /d. at 1265. 18 III. THE COURT OF APPEALS’ OPINION THAT IT WOULD BE AN INAPPROPRIATE EXERCISE OF FEDERAL EQUITY JURISDICTION AND AN IMPERMISSIBLE INTRUSION UPON STATE LEGISLATIVE AUTHORITY TO REQUIRE THE STATE TO INDEMNIFY METRO FOR 60% OF ITS DESEGREGATION COSTS IS CONSISTENT WITH PRECEDENTS OF THIS COURT AND OTHER CIRCUITS In coneluding that a federal court should not inter- vene in the financial relationship between a state and one of its political subdivisions, the court of appeals was cor- reetly adhering to established principles of equity as well as the opinions of this Court and the courts of appeal of other circuits. Moreover, this case is unique, and because of its particular factual history, its unusual alignment of parties and the mix of state and federal law involved, con- clusions regarding the exercise of equity jurisdiction in this case would have limited application elsewhere.'® The exercise of federal jurisdiction to reallocate edu- cational costs between this state and this political subdivi- sion is unnecessary to protect any constitutional rights of the affected students. The plaintiffs who sued Metro, but have not sued the state, are already receiving full relief. \6The court of appeals held that, in addition to the Eleventh Amendment, the relief in this case should be denied as an in- appropriate exercise of Federal equity powers. Therefore, even if the Eleventh Amendment were held insufficient to bar review of this case, the petition should not be granted and the court of appeals reversed unless the appellate court’s actions were found, aiter an examination of the facts, to be an improper exer- cise of its discretion. 19 Kelley, 836 F.2d at 989-90." No further federal court action is needed to assure compliance with constitutional rights guaranteed these students. Iixercise of federal jurisdiction to reallocate certain educational costs is not only unnecessary to accomplish constitutional requirements, it is also inappropriate under the facts uf this case. To open the doors of federal courts to such disputes is to invite political subdivisions to eir- cumvent the statutory and constitutional processes by which the fifty states govern funding decisions'® and to Metro asserts that it is proper for it to “step into the shoes of the plaintiffs’ (Petition, p. 13, n.9). To suggest that the plain- tiffs who initiated this desegregation case over thirty years ago and have continued throughout to actively pursue it are liti- gants whose shoes need to be filled is to ignore their effective advocacy throughout. Furthermore, it would be ironic for such a role to be assigned to Metro, a litigant which for more than two decades opposed the plaintiffs. In the one precedent cited by Metro, a 1974 court of appeals case, the opinion of the court (with each judge writing sepa- rately, one concurring in part and dissenting in part and the other dissenting) stated that ‘in the unique facts of this case, the Akron Board of Education has standing to bring this action. Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285, 1291 (6th Cir. 1974), cert denied 417 US 932 (1974). (Emphasis added.) That case concluded that a local school board could seek an injunction to prevent an action “to deprive Akron school students of their constitutional right to attend nonsegregated schools.” /d. at 1288. Here, however, the original plaintiffs, not Metro, fully protected the constitu- tional rights of students. Moreover, the relief sought is an award of money not an injunction to block an act by the state. In fact, however, Metro “has sued solely in its own right... and thus is barred . . . by the principle recognized in Dartmouth College and City of Trenton.” Kelley, 836 F.2d at 998. See also Footnote 14. '8For example Article Il, Section 24 of the Constitution of the State of Tennessee provides that ‘No public money shall be ex- pended except pursuant to appropriations made by law.” (Ap- pendix A-1) 20 impose a new and burdensome role for federal courts. This is an internal dispute between a state and one of its political subdivisions. Those disputes have been properly left for resolution outside the federal court system.” What Metro has asked the federal courts to do is to choose one particular method of funding a county’s educa- tional costs rather than any other method and to impose that selection on the State. The court of appeals noted that ‘‘'t}he State currently underwrites about 30% of Metro’s non-transportation costs, and it pays a still larger share of the costs of transportation; Metro, however, wants more.”’ Kelley, 836 F.2d at 990. Although the court of appeals found that the plaintiffs have full relief and that desegre- gation costs are being paid, Metro asks that the burden be shifted. It would be ironic and inappropriate for a political subdivision which fought desegregation of its schools for over two decades to be allowed to shift to others the financial burden of finally adhering to constitutional requirements. It would be inconsistent with sound prin- ciples of equity for a federal court to lift the burden from a political subdivision which has previously sought to avoid school integration and now seeks to avoid ex- penditures necessary to meet its constitutional obligations. Metro asserts that ‘‘the Sixth Circuit has rejected the efforts.of Davidson County ... to both desegregate and to educate.’ Petition, p. 23. The court of appeals has not. Instead it has told Metro that it must desegre- 19See Footnote 14. 21 gate, that it must educate, and that those responsibilities will not be shifted to the State. Adequate funding for programs for desegregation and for education is pos- sible within the legal authority to tax and spend at the local level of government. Finally, the court of appeals noted that courts of equity ‘‘do not leave their doors open to prospective suit- ors forever.’’ Nor can courts of equity expect that a third- party brought into a proceeding over twenty-six years after its inception is not prejudiced by its absence. Fur- thermore, the district court’s order of 60% indemnifica- tion of Metro bears no apparent connection to any prior acts of the state and is not a remedy tailored to any alleged present wrongful acts of the State. In fact there is no foundation in the record for the 60% allocation. Kelley, 836 F.2d at 1000. co) *°The Court of Appeals for the Fifth Circuit noted such a delay in United States v. Texas Education Agency, 790 F.2d at 1265: [The Lubbock Independent School District (“LISD’)] certainly could have moved in 1977—or as early as 1970—for the district court to amend its judgment so as explicitly to adjudicate the State of Texas’ fault. See Fed.R.Civ.P. 60(b). Further, the LISD could have moved in 1977, once it became clear what the effort to de- segregate would cost, that the court divide these costs among the parties deemed responsible for the then- existing segregation. Cf. Milliken II, 433 U.S. at 283. But the LISD pursued neither of these alternatives, and we express no view of what their proper resolution might have been. We are left instead with the LISD’s belated effort to recover costs which smacks of an at- tempted end-run around the Texas legislature’s alloca- tion of state funds. Yet the State has not been an ac- tive party to this suit since 1970, and it has never been adjudicated responsible for that segregation in Lub- bock which has proven costly to eliminate. 22 CONCLUSION Based upon the foregoing authorities and analyses, the respondents respectfully request this Court to deny the petition for writ of certiorari. Respectfully submitted, W. J. Micuae, Copy Attorney General of Tennessee JOHN Knox WaLKUP Chief Deputy Attorney General Patricia J. CoTTRELL Deputy Attorney General MicHaEL W, CaTALaNno Deputy Attorney General 450 James Robertson Parkway Nashville, TN 37219 (615) 741-1376 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1672%3A3. Public record. Not legal advice.