Appendix — Metropolitan County Board of Education v. Kelley
Supreme Court brief1972
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_— —AA—
APPENDIX ‘‘A”’
MEMORANDUM OPINION
(Filed June 28, 1971)
History of Litigation
The original action seeking school desegregation of the
Nashville school system was filed in September, 1955."
Finally, on July 16, 1970, after the gradual evolvement of
the present status of the law, this United States District
Court, speaking through the Honorable William E. Miller,
held that the local school board had not met its affirmative
duty to abolish the dual school system in three categories:
pupil integration, faculty integration,-and site selection
for school construction. Kelley v. Metropolitan County
Board of Education, 317 F. Supp. 980 (M.D. Tenn. 1970).
The approval and implementation of a plan to correct the
adjudicated wrongs was delayed until the Sixth Circuit
Court of Appeals ordered immediate hearings for that
purpose.
Background Data
The Metropolitan school system consists of three di-
visions. The elementary schools accommodate students
from kindergarten through the sixth grade. Junior high
accommodates grades seven through nine. Senior high
consists of grades nine through twelve.
In the 1970-71 school year a total of 94,170 students at-
tended the Metropolitan schools. Of this number, 33,485
were transported by the Metropolitan school system. Of
1 Reference to the separate and later consolidated actions re-
garding the City of Nashville and Davidson County systems is
omitted for brevity.
co sees
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the total transported, less than 4,000 were black and ap-
proximately 30,000 were white.
One hundred forty-one schools were operated in the
Metropolitan school system during the 1970-71 school year.
The racial breakdown of the students was:
BERG cc ccccccscccccvese 23,533
WEED cccscccesccscesess 71,754
GEE cc cccccccccccccses 237
The percentage breakdown was:
BRE cccccsccescencces 24.63%
WREND ccsccccsccvcseces 75.12%
GUOP ccnccceccccsvcces 25%
Plans Submitted for Court Approval
School Board Plan
The Board of Education submitted a plan for pupil in-
tegration in August, 1970. Included in this plan was a
policy statement that the school board ‘‘accepts as an
ideal student racial ratio of an integrated school as one
which is 15% to 35% black.’””
The August, 1970 plan made 49 minor geographic zone
changes, and provided for the transportation of an addi-
tional 1162 pupils.* The result of the plan was to leave
the elementary schools significantly unchanged. Six of
the 38 high schools and junior high schools would remain
at least 50 per cent black. Fifty-seven per cent of the
black high school and junior high school students would
2 The testimony of expert witnesses indicates that the ac-
cepted and satisfactory norm is a range from 10 per cent below
to 10 per cent above the percentage of black students enrolled
in a school system.
3 McGavock, a recently erected high school, was not included
in the August, 1970 plan.
wv
attend these six schools. The racial composition of two
schools would be at least 95 per cent black and four other
schools would be at least 90 per cent black. This would
result in 47 per cent of the black students attending
schools where the composition would be above 90 per cent
black. Eight schools, accommodating 20 per cent of the
black students, would operate with 15-35 per cent black
students. Fifteen schools would operate with 95 per cent
or above white students.
On the last day of the hearings, which were held on
several days over a three-month period, the school board
submitted an amendment providing for the selection of
students for McGavock School by paring.
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Plaintiffs’ Plan
Elementary Schools. Plaintiffs, through clustering: and
pairing, using both contiguous and non-contiguous zoning,
proposed to effect in most elementary schools, through two
alternate plans, a mathematical ratio in the range of 15-35
per cent black. Plan I would require the transportation
of 25,500 elementary students, and Plan II would require
the transportation of 27,000 pupils. Highty-two of 100
schools would fall within the ideal ratio under Plan I,
while under Plan II, 91 schools would attain the indicated
ratio.
Secondary Schools. A model was submitted which in-
cluded sectoring, clustering and pairing to attempt to at-
tain 15-35 per cent black in the junior and senior high
schools. In both the elementary and secondary school
plans there is not a satisfactory description of grade
organization, structuring of the schools, the assignment of
the pupils, or definite zone description. The plans propose
the mathematical result indicated, but delegate to the
school board the actual assignment of pupils and imple-
mentation of the plan.
PAPO ILIA OM PILL L I P ULEET EE I BOI LG LEE BOR INE I EIEIO GE EE LIANE SOE
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HEW Plan A as Amended‘
At the request of the Court, the Department of Health,
Education and Welfare submitted a plan with two alter-
nates. The principal plan was designated as Plan A.
This plan incorporates geographic zone changes, cluster-
ing, pairing (both contiguous and non-contiguous), and
grade restructuring.
Elementary Schools. Five schools would be closed.® Sev-
enty-four schools would have a racial percentage of 16-41
per cent black. Twenty-two schools which are located in
the far reaches of the county would have a racial percent-
age of 0-11 per cent black. Three of those 22 would have
no blacks. Under Plan A there would be no elementary
school in the system with a black student enrollment of
more than 41 per cent. Fifty-nine per cent of the black
students in the system would attend schools with a black
student enrollment of between 35 and 41 per cent. Three
per cent of the black students in the system would attend
schools with a black student enrollment of less than 15
per cent. Twenty-four per cent of the total number of
white students in the system would attend schools in which
black enrollment is less than 5 per cent. One per cent of
the total black student enrollment in 16 schools, or 125
students, would be enrolled in schools with less than 5
per cent black student enrollment.
Under this plan, approximately 22,000 elementary school
students would be eligible for school-provided transporta-
tion. This is approximately 10,500 more than the Board
4 Adjustments were made to shorten transportation routes,
to ineorporate the school board plan for McGavock School, to
adjust the student makeup of Pearl High School.
5 Three of the five schools to be closed are rated unsatisfac-
tory by the consultants hired by the school board, The other
two are listed as inadequate,
PA TR YEW PREM IRRRH
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transported in 1970-71, and 9,700 more than those who
would be transported under the Board’s proposed plan.
Three thousand five hundred fewer students would be
transported under HEW Plan A than under the plaintiffs’
Plan I, and some 5,000 fewer than would be transported
under plaintiffs’ Plan II.
Junior High Schools. This plan incorporates the school
board amendment to the August, 1970 plan. Eighteen of
25 schools would have a racial composition of 20-40 per
cent black. Seven schools would have a composition rang-
ing from 0-5 per cent black. These seven schools are in
the outer reaches of the county. Some former senior high
schools would be changed to junior high schools. Two
high schools would be closed.
Senior High Schools. This plan incorporates the school
board amendment to the August, 1970 plan. Central High
School would be closed. MaGavock High School is to be
opened. Of the 18 schools, 11 would have 18-44 per cent
black. One would have an 11 per cent enrollment of
blacks and six would be virtually all white. These all-
white schools are located in the outer reaches of the
county.
An analysis of the HEW amended plan with regard to
the secondary schools reflects that:
(1) no school would operate with more than 44 per cent
black;
(2) 29 of the 43 schools would operate within the range
of 15-44 per cent black, with one additional school having
11 per cent black;
(3) 13 schools, primarily in the outer reaches of the
county, would have 95 per cent or more white;
(4) 67 per cent of the schools, housing 90 per cent of
the black students, would operate in the 15-44 per cent
black range;
a HENTAI PE POAT MIN, MOI I BLT CAN MATE AY SS SANSONE MPD I RRP I BT RY SRR BEA SF
=e oe
(5) transportation would be required for 26,673 junior
and senior high school students; and
(6) including the transportation necessary for Me-
Gavock School, 2,838 more secondary pupils would re-
quire transportation than were transported in the 1970-71
school year.
Objective, Test, and Methods
Objective
‘‘The objective today remains to eliminate from
public schools all vestiges of state-imposed segrega-
tion.’? Swann v. Charlotte-Mecklenburg Board of Ed-
ucation, ... U.S. ..., 28 L.Bd.2d 554, 566 (April 20,
1971).
The Supreme Court has stated that ‘‘[t]he objective is
to dismantle the dual school system,’’ Swann, supra, at
573, ‘*. . . to eliminate invidious racial distinctions,’
Swann, supra, at 568, and ‘‘. . . to achieve the greatest
possible degree of actual desegregation, taking into ac-
count the practicalities of the situation.’’ Davis v. Board
of School Commissioners, ... U.S. ..., 28 L.Ed.2d 577,
581 (April 20, 1971).
Test
A plan ‘‘that promises realistically to work, and prom-
ises realistically to work now’’ is required. Davis, supra,
at 581, quoting Green v. County School Board, 391 U.S.
430 (1968). A plan ‘‘is to be judged by its effectiveness.’
Swann, supra, at 572; Davis, supra, at 581. A plan ‘‘is
not acceptable simply because it appears to be neutral.’
Swann, supra, at 573.
Methods to Accomplish Objective
The following methods have been acknowledged by the
United States Supreme Court: (1) restructuring of at-
tendance zones, both contiguous and non-contiguous; (2)
SA CNL NSS SRE IL IAEA REEMA TM IDR NMRA NS NI
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restructuring of schools; (3) transportation; (4) sector-
ing; (5) non-discriminatory assignment of pupils; (6)
majority to minority transfer; and (7) clustering, group-
ing and pairing. Swann, supra; Davis, supra.
Discussion of Plans Submitted
The pupil integration plan submitted by the school
board, viewed in the most favorable light, constitutes
mere tinkering with attendance zones, and represents only
a token effort. It clearly falls short of meeting the ob-
jectives and tests set out in the decisions of the United
States Supreme Court. Swann v. Charlotte-Mecklenburg
Board of Education, supra; Davis v. Board of School Com-
missioners, supra; Green v. County School Board, 391
U.S. 430 (1968). In effect, the defendant has made no
effort to meet its affirmative duty to establish a unitary
school system ‘‘in which racial discrimination would be
eliminated root and branch.’’® Green v. County School
6 Based on defendants’ school statistics for 1969-70, the stu-
dent enrollment was 95,789. The total majority to minority re-
zoned under this plan is:
Elementary
whites gained in black schools 301
blacks gained in white schools 457
758 majority to minority
transfer in
elementary
Junior High
whites gained in black schools 430
blacks gained in white schools 400
830 majority to minority
transfer in junior
high
Senior High
whites gained in black schools 73
blacks gained in white schools 735
808 majority to minority
transfer in senior
high
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toe ore OOS
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Board, sxpra, at 437-38; quoted in McDaniel v. Barresi,
... US. ..., 28 L.Ed.2d 582, 585 (April 20, 1971).
Since the defendants have, in effect, failed to submit a
constitutionally sufficient plan, the Court must examine
the other plans. The plaintiffs’ plans as to elementary
schools are adequate in one respect. Under Plan I, 82
out of 100 schools would be within the indicated range
of 15-35 per cent black, which was set by the school
board. Plan II would satisfy this standard in 91 out of
100 schools. This plan, however, has two features which
are objectionable to the Court. The first is that actual
assignment of student, i.e., the locations from which they
come, is left to the school board. The historical reluc-
tance by the school board to solve this problem instills
a lack of confidence in their implementation of this aspect
without close supervision. The second objection is that
some schools in the outer reaches of the county are in-
cluded. The Court finds that costs and other problems
incident to transportation make this feature of plaintiffs’
plan impractical and not feasible.
Each and every school is not required to be integrated.
The test is a unitary school system. Swann, swpra. The
practicality and feasibility of a plan is a material con-
sideration. Swann, sxpra.
The cost of the transportation of students and the un-
necessary disruption of the students are proper consid-
erations. The Court finds that distance and transporta-
tion difficulties make the integration of these schools
highly impractical.
Plaintiffs plan for the desegregation of secondary
schools, as in their elementary plan, was a model using
sectoring, zoning (contiguous and non-contiguous), and
pairing to accomplish the indicated racial balance. In
neither the elementary plan nor the secondary model is
there a description of grade organization, structuring of
es el ae +
_
the schools, the assignment of pupils, or proper descrip-
tion of zoning. For the reasons set forth as to the ele-
mentary school programs, the secondary school plan of
the plaintiffs is rejected.
The plans of the plaintiffs and defendants being re-
jected for the reasons stated, the HEW plan is the only
realistic plan remaining before the Court. As a result
of the evidence produced at the hearing, the HEW plan
was amended to effect the following changes:
(1) adjustment of the black percentage of North High
School from 65 per cent black to 44 per cent black, and
the reduction at Pearl High School to 33 per cent black,
with corresponding adjustments in Stratford, Maplewood,
and other schools; :
(2) shortening the time of transportation of certain
pupils; and
(3) incorporation of the McGavock High School phase
of the defendants’ amended plan.
On the last day of the hearings the defendants pre-
sented an amendment to its August, 1970 plan. This
amendment provided that McGavock would be a compre-
hensive high school serving an area where several junior
high schools are located. Although this amendment ap-
plied only to a small sector of the secondary school sys-
tem, it reflected the beginning of an awareness by the
defendants of their affirmative constitutional responsibil-
ity. The defendants indicate a desire to make similar
proposals in the future, which desire the Court wishes
to encourage. If the Board of Education had genuinely
wished to establish a unitary schoo] system, it had avail-
able to it the superior resources and assistance to do so.
The realistic and effective approach of the defendants
to the MeGavock School area was incorporated as an
amendment to the HEW plan, despite the fact that it
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requires more transportation, over longer distances, than
was required by the original HEW plan. The Court feels
that where administrative goals can be satisfied without
hampering the constitutional objectives to be accom-
plished, such goals should control.
Action of the Court
The Court hereby adopts the HEW Plan A as to ele-
mentary schools. This plan utilizes all of the methods
previously enumerated. The map showing the geographic
zones is on file with the clerk. This map also reflects the
zoning, pairing and clustering to be employed. The charts
appearing at pages 34 through 41 of the HEW plan, as
filed with the clerk, are adopted as a part of said plan
and will be followed in the implementation thereof.
Simultaneously with this Memorandum Opinion, the
Court has filed maps showing the geographic zones of the
junior and senior high schools. Likewise, charts are filed
titled Table 1, Senior High Schools, and Table 2, Junior
High Schools. These charts will be followed in the im-
plementation of the plan.
In the implementation of the plans, the transparent
maps can be placed as overlays on the student locator
map. Thus the geographic boundaries of the zones be-
come clear. In effect, the Court is providing the defend-
ant school board a map overlay for each of the grade di-
visions, namely the elementary schools, the junior high
schools, and the senior high schools. These overlays indi-
cate grade and school groupings, where such are made,
and approximate areas for attendance. Accompanying
tables show the approximate numbers of pupils involved.
The responsibility for determining the precise boundarr
lines is placed upon the defendant Board of Education.
A written description of such boundaries, together with
tables showing approximate numbers of pupils by race in
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each school, shall be filed with this Court by August 1,
1971. The defendant Board of Education may make minor
alterations in boundaries provided such alterations do not
lessen the degree of desegregation in the plan ordered by
the Court.
The Court is aware that the cost of implementing any
plan is a major concern. Much proof was introduced as
to the financial impact of any plan which requires trans-
portation. Since the defendants have consistently trans-
ported large numbers of students to promote segregation,
some adjustment must be made to reverse this unconsti-
tutional practice. Practical solutions are available, such
as the multiple use of buses, staggered hours for school
opening, and staggered hours for individual grades.
*“‘We do not read Swann and Davis as requiring
the District Couri to order the Board to provide ex-
tensive transportation of pupils to schools all over
the city, regardless of distances involved, in order
to establish a fixed ratio in each school.’’ Northcross
v. Board of Education, Civil Nos. 20,533, 20,539 (6th
Cir., filed June 7, 1971).
This order does not contemplate cross-transportation of
pupils within a grade level in implementation of this
order. If such crossing occurs, the Board may make
minor adjustments in zones or may make application to
the Court for reconsideration of the zones. It is further
contemplated that the transportation routes in the plan
implemented by this order permit uninterrupted trans-
portation of children from home pickup points to and
from the school attended. This is not to preclude the
Board in the exercise of administrative discretion and
consideration of transportation economics, from establish-
ing transfer routing and collection points.
The Court is aware that some “‘all-white’’ schools re
main in the outlying areas of the county. However, based
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upon practical considerations, common sense and judg-
ment dictate that they should not be integrated. Inte-
gration of those particular schools would not be feasible,
both from a distance and a cost standpoint. However, to
prevent the use of these schools as an avenue of resegre-
gation, certain restrictions on their use will be herein-
after set forth.
Special Provisions
Majority to Minority Transfer Policy
After this plan is implemented, there will be no schools
which have a majority of black students. Because of
population changes or other circumstances, however, this
situation might occur in the future. Therefore, the fol-
lowing policy shall be a part of the plan to be imple-
mented.
Whenever there shall exist schools containing a ma-
jority of black students, this school board shall permit
a student (black or white) attending a school in which
race is the majority to choose to attend the closest school
where his race is a minority. The Board of Education
will provide all such transferring students free transpor-
tation and will make space available in the school to
which he desires to move. The Board will notify all
students of the availability of such transfers.
Faculty Integration
On July 16, 1970, Judge Miller in this case stated:
‘It is well recognized that faculty and staff inte-
gration is ‘an important aspect of the basic task of
achieving a public school system wholly free from
racial discrimination.’ United States v. Montgomery
County Board of Education, 395 U.S. 225, 89 S.Ct.
1670, 23 L.Ed.2d 263 (1969); see Bradley v. School
Board of City of Richmond, 382 U.S. 103, 86 S.Ct. 224,
= PEERY SOMES SA es SS Os ee Ree T PELE EMG SO Les ELT Ore wer
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15 L.Ed.2d 187 (1965). In order to implement this
mandate, the Court concludes that in the instant case
faculties must be fully integrated so that the ratio
of black and white faculty members of each school
shall be approximately the same as the ratio of black
to white teachers in the system as a whole. Robinson
v. Shelby County Board of Education, supra; Nesbit
v. Statesville City Board of Education, 418 F.2d 1040
(4th Cir. 1969); Stanley v. Darlington County School
District and Whittenberg v. Greenville County School
District, 424 F.2d 195 (4th Cir. 1970); Pate v. Dade
County School Board, 307 F. Supp. 1288 (S.D. Fla.
1969); contra, Deal v. Cincinnati Board of Education,
supra. But see Goss v. Board of Education of the
City of Knoxville, 406 F.2d 1183 (6th Cir. 1969).’’
Kelley v. Metropolitan County Board of Education,
supra, at 991.
eS eS so s e* ¢ *#
‘Tt is the conclusion of the Court that the present
policy of faculty desegregation applied by defendant
is constitutionally inadequate. That policy must be
altered to comply with the standards set forth above.
A similar policy also must be applied to all other
personnel employed by defendant school board.’’
Kelley v. Metropolitan County Board of Education,
supra, at 992.
The court-required ratio for teachers in each school
was fixed at that time to be 80 per cent white to 20 per
cent black. Approximately 94 schools are not currently
operating at this ratio. In most schools, this ratio could
be accomplished by moving one or two teachers. Upon
the implementation of the plan presently adopted by the
Court, there should be no difficulty in meeting the court
order of 1970. Therefore, the defendants are required to
effect said ratios for the next school year beginning on
or about September 1, 1971.
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The school board shall immediately announce and im-
plement the following policies:
1. The principals, teachers, teacher-aides, and other
staff who work directly with children at a school
shall be so assigned that in no case will the racial
composition of a staff indicate that a school is in-
tended for black students or white students. The
school board shall, to the extent necessary to carry
out this desegregation plan, direct members of its
staff to accept new assignments as a condition to
continued employment.
2. Staff members who work directly with children,
and professional staff who work on the administra-
tive level will be hired, assigned, promoted, paid,
demoted, dismissed, and otherwise treated without
regard to race, color, or national origin.
3. If there is to be a reduction in the number of
principals, teachers, teacher-aides, or other profes-
sional staff employed by the school system which will
result in a dismissal or demotion of any such staff
members, the staff member to be dismissed or demoted
must be seleci.d on the basis of objective and reason-
able non-discriminatory standards from among all the
staff of the school system. In addition, if there is any
such dismissal or demotion, no staff vacancy may be
filled through recruitment of a person of a race, color,
or national origin different from that of the individual
dismissed or demoted, until such displaced staff mem-
ber who is qualified has had an opportunity to fill the
vacancy and has failed to accept an offer to do so.
Prior to such a reduction, the school board will de-
velop or require the development of nonracial objec-
tive criteria to be used in selecting the staff member
who is to be dismissed or demoted. These criteria
RT ER TLE LAELIA I ELE
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shall be available for public inspection and shall be
retained by the school board. The school board also
shall record and preserve the evaluation of staff mem-
bers under the criteria. Such evaluation shall be
made available upon request to the dismissed or de-
moted employee.
**Demotion’’ as used above includes any reassign-
ment (1) under which the staff member receives less
pay or has less responsibility than under the assign-
ment he held previously, (2) which requires a lesser
degree of skill than did the assignment he held previ-
ously, or (3) under which the staff member is asked to
teach a subject or grade other than one for which he
is certified or for which he has had substantial ex-
perience within a reasonably current period. In gen-
eral, depending upon the subject matter involved,
five years is such a reasonable period.
Construction, Renovation and Location of Schools
On July 16, 1970, the United States District Court
stated:
**The constitutional requirement of desegregation
also finds application in the area of construction,
renovation, and location of schools. School boards are
required consciously to plan school construction and
site location so as to prevent the reinforcement or
recurrence of a dual educational system. See, eg.,
Felder v. Harnett County Board of Education, 409
F.2d 1070 (4th Cir. 1969); Swann v. Charlotte-Meck-
lenburg Board of Education, 306 F. Supp. 1291, 1299
(W.D. N.C. 1969); Pate v. Dade County School Board,
307 F. Supp. 1288 (S.D. Fla. 1969). Courts may prop-
erly restrain construction and other changes in the
location or capacity of school properties until a show-
— A-16 —
ing is made that such changes will promote rather
than frustrate the establishment of a unitary school
system. This Court in the past has stated that school
boards may be enjoined from planning, locating or
constructing new schools or additions to existing
schools in such manner as to conform to racial resi-
dential patterns or to encourage or support the growth
of racial segregation in residential patterns. Such
operations, rather, are to be conducted ‘in such man-
ner as to affirmatively promote and provide for both
the present and future an equitable distribution of
racial elements in the population of each School Sys-
tem.’ Stoan v. Tenth School District of Wilson
County, Civ. No. 3107 (M.D. Tenn., Oct. 16, 1969).
‘‘Looking to the facts of the instant case, it be
comes apparent that defendant’s decisions on the site
selection and construction of its newest schools were
not designed to promote desegregation. Since 1963,
defendant has built four new elementary schools
(Dodson, Granberry, Lake View, and Paragon Mills),
eight new junior high schools (Apollo, Bass, Ewing
Park, McMurray, John T. Moore, Neely’s Bend, Rose
Park, and Wright), and one new high school (Du-
pont). Of these 13 schools, Rose Park, with an en-
rollment of 527 black students and 11 white students,
is virtually all-Negro. The remaining twelve schools,
however, are, on the average, 97% white, with some
having a black enrollment as high as 10%. Three
elementary schools (Cora Howe, Fall-Hamilton, and
H. G. Hill) and one high school (McGavock) are cur-
rently under construction. Enrollment estimates indi-
cate that all of these schools will be predominately
white.
‘‘Seven elementary schools, two high schools, and
one school for the physically handicapped are cur-
RETIRE RAL Oa HANA PRE 2S POI ELE A GLIAL IG HEMEL AS HAT SO PN
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rently in the planning stage. The two high schools
are being planned for predominantly black student
bodies. Five of the seven elementary schools are to
be constructed in virtually all-white residential areas,
while the remaining two are projected for location
in all-black or predominantly black residential areas.
Thus, from the foregoing, it is apparent to the Court
that defendant must consider making substantial al-
terations in its school construction policies in order
to comply with constitutional requirements.
‘“‘The Court is of the opinion that the following
course of action must be taken by defendant. First,
those new schools on which construction work was
actually in progress as of November 6, 1969,’* may be
completed. Though this action may not produce an
ideal result in light of the goal of integration, it will
prevent unnecessary economic waste. Also, since,
these new schools will be subject to the same zoning
policies prescribed above, their segregative influences
should be lessened. Second, in instances where actual
construction had not begun as of November 6, 1969,
defendant must revise its plans where necessary in
relation to these proposed schools so as to find a loca-
tion that will maximize student integration. Finally,
in the future all construction plans as well as plans
for closure of old schools must be governed by the
principles stated herein. The purpose of the Court in
making such a requirement is to insure that such plans
will serve the purpose of establishing a unitary school
system. See Sloan v. Tenth School District of Wilson
County, supra.’’? (Footnote omitted.) Kelley, supra,
at 992-93.
“13 This is the date of the Temporary Restraining Order
issued by this Court to enjoin defendant from further con-
struction, expansion, or closure of schools pending the out-
come of this suit.”
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New Construction. The Board has proposed for approval
the erection of two comprehensive senior high schools, one
in the Joelton school area, and the other in the Goodletts-
ville area.
In connection with future planning, the Board employed
a team of consultants to evaluate the existing school
structures and to project the location of new structures.
Prior to the submission of these recommendations, the
Court requested, and two administrators of the Board lo-
cated on a map, the ideal locations for comprehensive
schools. When the team of consultants later made its re-
port, their projections generally agreed with those of the
school administrators. They found that new comprehen-
sive schools should be located in the general area of the
proposed inner-city expressway loop known generally as
‘‘Briley Parkway.’’ The reason for this agreement is
obvious when the pupil locator map is examined. Briley
Parkway is generally the divider between the inner-city
pupils and the outer-county pupils. It is roughly the half-
way division. By the establishment of schools in this
area, the integration of schools would be effected naturally
and thereby minimize transportation.
Therefore, the Court finds that the erection of a compre-
hensive school] in the Joelton area, with geographic zones
drawn in accordance with the testimony in court, will
maximize student integration. Upon submission of proper
zoning and pupil assignment, this construction will be
approved.
The proposed Goodlettsville school, a comprehensive
high school, is located in an all-white community and is
not located near the dividing line between inner-city popu-
lation and outer-county population. By referring to the
pupil locator map, it clearly appears that the erection of
this school would tend to promote segregation. Thus the
erection of this school in its proposed location is hereby
—_
— A-19 —
enjoined. If the Board desires to establish another com-
prehensive high school, subsequent court approval may be
obtained by submitting an appropriate location and proper
geographic zones, which will achieve and perpetuate inte-
gration.
Another proposal is the erection of a school for the
physically handicapped at 2500 Fairfax Avenue. This
facility is to be erected near Vanderbilt University. The
availability of professional services from Vanderbilt Uni-
versity and Vanderbilt Hospital is stressed. The plaintiffs
assert that said project should be located in a ‘‘halfway’’
position between Vanderbilt University, Meharry Medical
College, and Fisk University.
The Court feels that the facility will have little, if any,
effect on achieving a unitary school system. This Court
will not substitute its judgment for that of the Board, and
the Board’s proposal is approved.
Additions and Renovations. An application has been
made for permission to acquire additional property for
Hillsboro School so as to transform Hillsboro into a com-
prehensive high school. This application is denied for
the same reasons that the Goodlettsville school was not
approved.
Portable classrooms, referred to generally as ‘‘port-
ables,’’ have been used by the Board to house students in
schools which were all-white or had received only token
integration when there were vacant rooms in predomi-
nantly black schools. In effect, portables have been used
to maintain segregation. In the future, portables shall be
used only to achieve integration and the Board is hereby
so enjoined.
In the plan adopted by the Court, certain schools in the
outlying areas of the school district remain virtually all
white. By reason of the past conduct of the Board the
ni Mi .
Court hereby sets forth the following restrictions to pre.
vent these schools from becoming vehicles of resegrega-
tion. It is ordered that the schools, which have less than
15 per cent black pupils after the implementation of the
plan, shall not be enlarged either by construction or by
portables, and shall not be renovated without prior court
approval. Furthermore, no additional schools shall be
erected without prior court approval.
By making the above restrictions, this Court does not
imply that it will make ‘‘year-by-year adjustments of the
racial composition of student bodies once the affirmative
duty to desegregate has been accomplished and racial dis-
crimination through official action is eliminated from the
system.’’ Swann, supra, at 575.
The parties will draw and submit an order to the Court
within fifteen (15) days. However, without said order
this Memorandum Opinion is self-executing and must be
implemented for the school year beginning on or about
September 1, 1971. The Court will retain jurisdiction of
this case. No stay will be granted by this Court. Swann,
supra, at 570; United States v. Board of Public Instruc-
tion, 395 F.2d 66 (5th Cir. 1968) ; Brewer v. School Board,
397 F.2d 37 (4th Cir. 1968).
L. CLURE MORTON
United States District Judge
ee
ENTE AAO RNR EOE | EBS LT RGAE
—s
Table 4
COMPOSITE BUILDING INFORMATION FORM
ELEMENTARY SCHOOLS
Students
Name of School Grades CAP. TRANS. Ww N 7 %B Comments
McKissack 5-6 990 516 482 373 955 39
McCann 1-4 690 108 417 273 690 39 Contiguous
Cockrill 1-4 510 0 241 36 277 36 Contiguous
Charlotte Park 1-4 870 164 556 306 862 36 306-b from A
Richland 1-4 510 136 241 136 377 36 136-8 from B
Park Avenue 5-6 420 272 277 111 388 29
Sylvan, Park 1-4 660 164 340 157 497 32 Contiguous
Vaught 1-4 360 114 212 114 326 35 114-b from C
Head 5-6 1080 350 329 211 540 39
Ransom 1-4 390 202 252 154 406 38 153 b from D
Eakin 1-4 570 130 238 145 383 38 Contiguous
Woodmont 1-4 360 205 204 128 332 38 128 b from E
Table 4
COMPOSITE BUILDING INFORMATION FORM
ELEMENTARY SCHOOLS
Date...... RE ee CIC
Students
Name of School Grades CAP. TRANS. WwW N T %B Comments
Waverly-Belmont 5-6 450 294 310 160 470 34
Stokes 1-4 390 67 157 91 248 37 Contiguous
Burton 1-4 540 316 234 137 371 37 18w-137b from H
J. Green 1-4 390 128 251 90 341 34 16w-90-b from G
Percy Priest 1-6 660 519 471 188 659 28 12-w-188-b from F
Robertson Academy 5-6 210 126 138 55 193 28
Glendale 1-4 420 246 263 99 362 27
C. Lawrence 6 1020 283 308 160 468 34
Murrell 5 510 272 279 161 440 37
Fall-Hamilton 1-4 480 86 245 168 461 36 Contiguous
Berry 1-4 450 114 207 115 322 36 1-w-113b from L
Woodbine 1-4 510 144 248 143 391 36 1-w-143-b from J
Turner 1-4 630 139 247 129 376 34 8w-129b from I
Glencliff 1-4 480 133 254 129 383 34 4-w-128b from K
Table 4
COMPOSITE BUILDING INFORMATION FORM
ELEMENTARY SCHOOLS
Students
Grades CAP. TRANS. w N T eB
780 289 289 183 472 39
720 333 328 ig2 520 37
540 585 319 196 515 38
630 241 371 235 6006 39
360 146 211 140 351 39
600 390 390 244 634 38
B40 367 370 188 558 34
600 an 304 199 503 39
570 371 335 198 533 37
1050 428 259 687 38
540 316 223 154 377 an
510 367 204 180 474 38
510 367 305 184 489 38
Table 4
COMPOSITE BUILDING INFORMATION FORM
ELEMENTARY SCHOOLS
Students
CAP. TRANS. w N T RB
1590 426 429 179 608 28
R40) 248 486 236 70 32
540 125 275 125 tLe 31
660 415 448 184 632 28
600 358 395 193 Sue 33
66U 217 aaa is? 62. 28
360 211 236 92 328 2a
630 358 391 184 575 32
540 20 305 126 431 30
1020 0 663 3u2 965 31
illo 375 390 219 609 36
630 2$2 397 238 635 38
600 200 306 lsu $56 38
$37
F
i
uuu wux
PAAR AAA
Table 4
COMPOSITE BUILDING INFORMATION FORM
ELEMENTARY SCHOOLS
Students
Name of Beboo! Grates CAP. TRANS. Ww N T eB Comments
K6 360 13 195 ay 284 31 No change
kK 6 i Py, re) 21 No change
546 540 191 325—Ctis«éa:SS 440 26
34 660 $1 4 116 516 22
1-2 720 191 408 147 555 27
K 6 £20 0 315 il 429 26
54 630 324 411 238 649 37
34 690) 475 aC (t‘C TDD 36
12 720 375 “a 2 66468 37
56 900 280 293 173 6 87
14 480 115 399 «133s a2 27 Contigvous
i 420 188 25 Cti«‘i C875 ped (I Begible)
Tabie 4
COMPOSITE BUILDING INFORMATION FORM
ELEM
ENTARY
Students
Name of Schoo! Grades CAP. TRANS. Ww N T eB (omments
56 660 408 405 229 634 36
i4 690 302 417 298 715 41 Contiguous
14 300 112 187 109 296 37 106-b-7-# from W
i4 570 132 221 129 359 37 128-» 2-w from X
14 690 153 494 186 6RO 27 No Change
44 240 160 155 46 201 23
13 240 155 i71 41 212 19
14 ano 212 405 135 Seo 25 * These schools include
16 780 212 oe4 i129 &23 16
Jones in grades 1-4
portables will be
° at cach school
I ee” -
Sr se 2 ere
SE TO EDGE
—_—y =
aennnIeVregeean
- -_
SSSESB2R28S8233
SEAAs“Kagenra|rs
BSSESTVETERE TIS
SU°R2RSHF SERS
S8S2ES328555S52
Lull
Harpeth Valley
ELEMENTARY SCHOOLS
COMPOSITE BUILDING INFORMATION FORM
“"net"ece
sagen
— —1%5—
APPENDIX “B”
Nos. 71-1778-79
United States Court of Appeals
for the Sixth Circuit
Robert W. Kelley, et al, Henry )
C. Maxwell, Jr., et al,
Plaintiffs-A ppellees, Apresat from the
e United States Dis-
3 trict Court for the
Metropolitan County Board of Ed- Middle District of
neation of Nashville and David- Tennessee, Nash-
son County, Tennessee, C. B. ville Division.
Dorrier, Chairman, et al,
Defendants Appellants.
a
4
Decided and Filed May 30, 1972
Before: Epwanps, Cecesnezze and McCue, Circuit Judges
Epwaarps, Cireuit Judge. In this case we do not write on
a clean slate. What follows describes an incredibly lengthy
record and settled law pertaining to segregated schools.
We start with this latter, as recited in the United States
Constitution and in three historic, unanimous decisions of
the United States Supreme Court—the last dated 1971.
“(Nor shall any State . . . deny to any person
within its jurisdiction the equal protection of the
laws.”’ U.S. Const. amend. XIV, § 1.
— A-9% —
We conclude that in the field of public education the
doctrine of ‘‘separate but equal’’ has no place. Sepa-
rate educational facilities are inherently unequal.
Therefore, we hold that the plaintiffs and others simi-
larly situated for whom the actions have been brought
are, by reason of the segregation complained of, de-
prived of the equal protection of the laws guaranteed
by the Fourteenth Amendment. Brown v. Board of
Education, 347 U.S. 483, 495 (1954).
[A] plan that at this late date fails to provide
meaningful assurance of prompt and effective dis-
establishment of a dual system is also intolerable.
‘*The time for mere ‘deliberate speed’ has run out,”
Griffin v. County School Board, 377 U. S. 218, 234;
‘*the context in which we must interpret and apply
this language [of Brown II] to plans for desegrega-
tion has been significantly altered.’’ Goss v. Board of
Education, 373 U. S. 683, 689. See Calhoun v. Lati-
mer, 377 U. S. 263. The burden on a school board
today is to come forward with a plan that promises
realistically to work, and promises realistically to
work now. Green v. County School Board of Kent
County, 391 U.S. 430, 438-39 (1968).
All things being equal, with no history of discrimi-
nation, it might well be desirable to assign pupils to
schools nearest their homes. But all things are not
equal in a system that has been deliberately con-
structed and maintained to enforce racial segregation.
The remedy for such segregation may be administra-
tively awkward, inconvenient, and even bizarre in some
situations and may impose burdens on some; but all
awkwardness and inconvenience cannot be avoided in
the interim period when remedial adjustments are
being made to eliminate the dual school systems.
> an PD PS POLES CEE
*
COPY BOUND CLOS
BE SES PP OE fA, By REN e
— A-27—
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 28 (1971).
After 17 years of continuous litigation the Metropolitan
County Board of Education of Nashville and Davidson
County, Tennessee, appeals from a final order of the
United States District Court for the Middle District of
Tennessee requiring the School Board to take the neces-
sary steps to end thc racially separated school systems
which it had previously been found to be operating. This
order was a direct result of an order of this court approv-
ing the District Court's findings of violations of equal pro-
tection and vacating a stay of proceedings. In it we had
noted :
[T]he instant case is growing hoary with age. It is
actually a consolidation of two cases. The first case,
Kelley v. Board of Education of the City of Nashville,
Civ. A. No. 2094, was filed in September of 1955; and
the second case, Maxwell v. County Board of Educa-
tion of Davidson County, Civ. A. No. 2956, was filed
in September of 1960. A whole generation of school
children has gone through the complete school system
of Metropolitan Nashville in the intervening years
under circumstances now determined to have been
violative of their conditional rights. A second gener-
ation of school children is now attending school un-
der similar circumstances—and the remedy is not in
sight. Kelley v. Metropolitan Board of Education of
Nashville, Tennessee, 436 F.2d 856, 858 (6th Cir.
1970).
The order of the District Judge is the first comprehen-
sive and potentially effective desegregation order ever
entered in this litigation. The District Judge tells us that
now the remedy is at least in sight.
— A-28 —
On appeal defendants contend 1) that the District Court
had no jurisdiction to hear and determine this case be-
cause of failure to comply with Rule 23 of the Federal
Rules of Civil Procedure and because of changes in the
status of the original party plaintiffs since the commence-
ment of these suits; 2) that the District Court’s order is
invalid because it requires integration of schools accord-
ing to a fixed racial ratio, in violation of the rules set out
in Swann v. Charlotte-Mecklenburg Board of Education,
supra at 23, 24; and 3) that the plan ordered into effect
should be reconsidered because of what the defendant
School Board claims to be adverse effects on the health
and safety of school children involved.
Plaintiffs as cross-appellants claim 1) that the District
Court erred in adopting the Department of Health, Edu-
cation and Welfare plan when the plan proposed by
plaintiffs would have achieved a greater degree of inte
gration; and 2) that the HEW plan should have been
rejected because it places the burden of desegregation
disproportionately upon Negro children.
HISTORY OF THE NASHVILLE-DAVIDSON
COUNTY CASE
The history of school desegregation from Brown v.
Board of Education, supra, to date can be traced in this
case in the proceedings in the District Court, in this Court,
and in the United States Supreme Court: Kelley v. Board
of Education of City of Nashville, 139 F.Supp. 578 (M.D.
Tenn. 1956) (Dissolution of three-judge court); Kelly v.
Board of Education of City of Nashville, 159 F.Supp. 272
(M.D. Tenn. 1958) (Disapproval of integration plan arid
grant to Board of additional time to file a new plan) ; Kel-
o> te eS Oe TES + GOOF OS ak SE EE CEP LE erst“
*
COPY BOUND CLC
— A-29 —
ley v. Board of Education of City of Nashville, 8 R.R.L.R.
651 (M.D. Tenn. 1958) (Approval of 12-year plan) ; Kelley
v. Board of Education of City of Nashville, 270 F.2d 209
(6th Cir. 1959) (Upholding District Court order); Kelley
v. Board of Education of City of Nashville, 361 U.S. 924,
80 S.Ct. 293, 4 L.Ed.2d 240 (1959) (Denial of certiorari) ;
Maxwell v. County Board of Education of Davidson
County, 203 F.Supp. 768 (M.D. Tenn. 1960); Marwell v.
County Board of Education of Davidson County, 301 F.2d
828 (6th Cir. 1962), reversed in part and remanded sub
nom, Goss v. Board of Education of Knoxville, 373 US.
683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); Kelley v. Board
of Education of Nashville and Davidson County, 293 F.
Supp. 485 (M.D. Tenn. 1968) (Further proceedings in a
consolidation of Maxwell, supra, and Kelly, supra) ; Kelley
v. Metropolitan County Board of Education, 317 F.Supp.
980 (M.D. Tenn. 1970); Kelley v. Metropolitan Board of
Education of Nashville, Tennessee, 436 F.2d 856 (6th Cir.
1970) (Memorandum opinion (filed June 28, 1971); Judg-
ment (filed July 15, 1971)).
This case began in 1955 on the heels of the United States
Supreme Court’s decision in Brown v. Board of Educa-
tion, supra, holding that ‘‘separate educational facilities
are inherently unequal,’’ supra at 495. Plaintiffs in a
class action sought invalidation of the Tennessee school
laws, T.C.A., § 49-3701, et seq., which in specific terms re-
quired segregation of school pupils by race. (See Appen-
dix A) In 1956 a three-judge federal court which had
been convened to pass on the constitutionality of the state
statute was dissolved when the defendant Board of Edu-
cation conceded the unconstitutionality of the state statute
by which it had previously been governed. Kelley v. Board
of Education of City of Nashville, 139 F.Supp. 578 (M.D.
Tenn. 1956). The case was then remanded to the United
States District Court for the Middle District of Tennes-
see. The District Judge determined that the case was an
SE IN CENTE}F.
—_s
appropriate class action under Rule 23 of the Federal
Rules of Civil Procedure (Record, Min. Book 19 at 683).
He ordered the defendant School Board to prepare and
present a plan for desegregation of the Nashville schools.
Before judgment was entered, the State of Tennessee
in January 1957 adopted a Parental Preference Law, TCA
§ 49-3704, Pub. Acts 1957, cc 9-13, 2 Race Ret. L. Rep. 215
(1957). (See Appendix A) This statute provided for sep-
arate white, black, and mixed schools, with attendance to
be determined by parental preference. The District Court
in September of 1957 held this statute to be unconstitu-
tional on its face. 2 Race Ret. L. Rep. 970 (1957).
The defendant School Board thereupon (and nonethe-
less) presented a parental preference plan for white,
black, and mixed schools substantially the same as that
called for by the unconstitutional state law.
In February of 1958 the District Court held the School
Board plan to be unconstitutional.
Later in the same year a grade-a-year desegregation
plan was submitted by defendant School Board, approved
by the District Court and the Court of Appeals, with
certiorari denied by the United States Supreme Court.
In 1960 a suit was filed to desegregate the Davidson
County schools. Maxwell v. County Board of Education
of Davidson County, supra. It was brought on behalf of
Negro children alleged to be denied their constitutional
rights to equal education in the county school system.
Again the suit was brought as a class action and recog-
nized as such by the District Court under Rule 23, Fen. R.
Crv. P. (Record, Min. Book 24 at 114.) The Davidson
County school Board proposed a free transfer plan and
it was approved by the District Court. On appeal Max-
well’s free transfer plan was invalidated by the United
States Supreme Court, sub nom., Goss v. Board of Edu-
cation of Knoxville, 373 U.S. 683 (1963).
SORE ME SSS TORR SO EAGAN PILE PETAR SRE STEELER TS ea
*
COPY BOUND CL<
, ~Liha
In 1963 the school systems of Nashville and Davidson
County were then consolidated as part of a general con-
solidation of the City of Nashville and County of David-
son into one metropolitan government. Petitions for fur-
ther relief, including an order to desegregate the Nash-
ville-Davidson County schools and to enjoin further school
construction pending such an order, were filed in the
consolidated case, with additional plaintiffs intervening.
In 1968 the United States Supreme Court took further
note of how the Brown II phrase ‘‘deliberate speed’’ was
being employed to delay rather than to implement school
desegregation.
For purposes of reemphasis, we again quote the unani-
mous opinion:
[A] plan that at this late date fails to provide
meaningful assurance of prompt and effective dis-
establishment of a dual system is also intolerable.
‘‘The time for mere ‘deliberate speed’ has run out,”’’
Griffin v. County School Board, 377 U.S. 218, 234;
‘‘the context in which we must interpret and apply
this language [of Brown II] to plans for desegrega-
tion has been significantly altered.’’ Goss v. Board of
Education, 373 U.S. 683, 689. See Calhoun v. Latimer,
377 U.S. 263. The burden on a shool board today is
to come forward with a plan that promises realisti-
cally to work, and promises realistically to work now.
Green v. County School Board of Kent County, 391
U.S. 430, 438-39 (1968). (Emphasis added.)
On the heels of these deisions plaintiffs sought relief
consistent with them and lengthy hearings followed. In
1970 the District Judge entered findings of fact which
were subsequently reviewed and given effect by this court.
Kelley v. Metropolitan County Board of Education of
Nashville, Tennessee, 436 F.2d 856 (1970). In its opinion
this court said:
— A-32 —
It would be well for those in authority in Nashville
and Davidson County to read the able opinion [Dis-
trict Court opinon entered July 16, 1970] whch we
now revitalize by our present order. The emphasis
in the quotation which follows is that of this court:
‘<{I]t is the Court’s view that in the area of
school zoning, school boards will fulfill their af-
firmative duty to establish a unitary school sys-
tem only if attendance zone lines are drawn in
such way as to maximize pupil integration. In
drawing such lines, the defendant school board
may properly consider in the total equation such
factors as capacities and locations of schools,
physical boundaries, transportation problems, and
cost; however, none of these considerations can
supercede the importance of the primary goal
of maximizing integration.
*‘In looking to the facts of this case, the Court
finds that many of the elementary and secondary
school zone lines in the Nashville and Davidson
County School System have not been drawn so as
to minimize integration. With the exception of
zone lines drawn for new schools, the zone lines
currently in existence were drawn prior to Brown
v. Board of Education with the aim of maintain-
ing segregation. Though there has been some
black population migration to formerly white
areas, in large part these zone lines continue to
serve quite well the segregative purpose for
which they were originally established. The truth
of this statement is made manifest when one ex-
amines the racial make-up of the pupil population
in areas containing several contiguous attendance
zones. In Kast Nashville, for example, there is
a cluster of five elementary schools having con-
tiguous attendance zones. Of these five schools,
white pupils are in the great majority in four
SN A A Lh ROE INLIE S EO GLOGS IEE LEED ERED. LEE LESTE
_*
COPY BOUND CL‘
, —_*
schools, Baxter, Dalewood, Rosebank, and Bailey,
while black students are in the majority in one
of the schools, Inglewood. As a reference to the
zone map will indicate, Inglewood is completely
surrounded by the four predominantly white
schools, and the Inglewood zone is drawn to en-
close most of the black population living in the
five school area. Defendants argue that they are
applying the ‘neighborhood’ concept in the draw-
ing of elementary school zone lines. If such a
concept is indeed being applied in this five school
area, it appears to the Court that it is beimg ap-
plied solely to perpetuate segregation. Defend-
ants contend that one of the prime advantages
of neighborhood ‘schools’ is that they allow pupils
to walk to and from school. If this is true, it ts
difficult to see why black pupils who live closer
to Baxter or Bailey schools, for instance, are re-
quired to walk the greater distance to attend
Inglewood school.
‘<The same pattern is repeated in a seven school
area in south and west Nashville. In this situa-
tion, the attendance zones for Ransom and Eakin
schools are contiguous with the attendance zones
for Ford, Greene, Head, Carter Lawrence, Murrel
and Clemons schools. The former two schools are
almost completely white, while the latter five
schools are almost totally black.* Once again it
7 See Map No. 2 in Appendix and note the following
figures* on the enrollment of these schools:
WwW B %B
Ford Greene 0 887 100
Head 0 791 100
Carter Lawrence 0 516 100
Murrel 0 328 100
Clemons 51 519 90
Ransom 355 2 1
Eakin 487 5 1
* Based on plaintiff’s exhibit No. 3.
— .
SE IN CENTE}.
“abe —-
ae ae i
g So et DP De os
spats abi? Eipihe’s
Ke spe dali ain,
ee ee
ery
Sagi gti Yh CA lege ec vate Red
Baissea scion ieesnan.
—_
appears that the zone lines as drawn insure that
white neighborhoods will have white schools and
black neighborhoods will have black schools. As
the above two illustrations make clear, by main-
taining the old dual school zones, defendant has
encouraged continued segregation rather than sig-
nificant integration in the elementary schools.
‘*Turning to junior high school zones, the Court
finds much the same situation as in the elementary
schools. Though the ‘neighborhood’ concept is not
applied in secondary school zoning, junior high
school zones are drawn so that each school serves
a particular residential area or ‘service area’ as
it is sometimes referred to by defendant. These
service areas cover a broader geographic area
than a single neighborhood, for several elemen-
tary schools within their respective neighborhood
zones feed graduating students into the junior
high school within whose zone they lie. This
process is generally described in terms of a
‘feeder pattern.’ Once again, a look at the exist-
ing zone lines convinces the Court that the junior
high school attendance zones and the ‘feeder pat-
terns’ which graduate elementary students into the
junior high schools are structured so as to foster
for the most part continued segregation or at
best only token integration. It is apparent that
the zone lines as presently drawn are designed
to provide racially identifiable ‘black’ schools for
black residential areas and ‘white’ schools for
white residential areas. For example, looking at
a cluster of six contiguous junior high school
zones, the Court finds that Bass, West End, and
Moore Junior high schools are all predominantly
white schools with their attendance zones being
drawn so as to correspond significantly with white
a
COPY BOUND Ci
|* . — A-35—
residential areas. On the other hand, Washing-
ton, Rose Park and Waverly-Belmont are all ra-
cially identifiable as black schools and their at-
tendance zones have been drawn in a manner
effectively to prevent a significant number of
black pupils from attending school outside of
the black residential area.®
‘‘ Finally, looking to the high school zones, there
is similar evidence of continued duality in the
school system. For example, of five contiguous
high school zones, three of the schools, Cohn,
Hillsboro and Central, are racially identifiable as
white schools. Their attendance zone lines form
the boundary line between the predominantly
white residential areas in south and west Nash-
ville and the black residential areas to the north
and east. These black areas are served by Came-
ron and Pearl high schools.®
8 Sce Map No. 3 in Appendix and note the following
figures :*
WwW B %B
Bass 777 12 2
West End 578 40 6
Moore 999 85 8
Washington 0 1,347 100
Rose Park 11 527 98
Waverly-Belmont 26 260 91
* Based on plaintiffs exhibit No. 3.
9 See Map No. 4 in Appendix and note the following
figures:
WwW B %B
Cohn 960 45 1
Hillsboro 1,223 15 1
Central 899 203 18
Pearl 1 1,308 100
Cameron 0 1,212 100
SE IN CENTEF.
— A-3%6 — i
“In connection with the segregative effect of
present school zoning, it is interesting to note
that while portable classrooms are in limited use
in predominantly Negro schools, approximately
117 portables are in use in racially identifiable
white schools. These predominantly Negro
schools, on the basis of their rated maximum
capacities, have approximately 5,400 vacancies,
yet the white schools, in zones tailored to white
residential sections, are overcrowded. It would
seem that rezoning could serve the dual purpose
of alleviating this overcrowding and, at the same
time, promoting the goal of integration.
‘“‘It is the Court’s conclusion that defendant's
current policy of attendance zoning does not fa-
cilitate rapid conversion from a dual to a unitary
school system. As is evident from the foregoing
discussion, the zone lines as they presently ezist
foster continued segregation in many instances."°
Corresponding as they do to racial residential
patterns, it is difficult to envision any other re-
sult. Historic zone lines which purposely promote
segregation must be altered. In making such
alterations defendant board should take those
steps ‘which promise realistically to convert
promptly to a system without a ‘‘white’’ school
and a **Negro’’ school, but just schools.’ Green
v. County School Board of New Kent County,
supra [391 U.S. 430] at 442 [88 S.Ct. 1689, 20
; L.Ed.2d 716).
So pdb cola WR) ota ee BRC AT TU nee eS LR CIEE BLARES ae thr “4
eee ee
1© Of the 139 regular schools in the system in 1969-70.
4 88 had less than 10% black enrollment, 22 had 10% to
40% black enrolling (with the total enrollment of these
: latter 22 schools constituting only 16% of the entire metro-
politan school enrollment), and finally 29 schools had
more than 40% black enrollment. A clear racial pattern
7.
. ”
is present.
a - - ns panting FR pee pai
*
COPY BOUND CLOS'
—A-37 —
Kelley v. Metropolitan County Board of Education
of Nashville, Tennessee, supra at 859-61. (Footnotes
in quotation.)
We then remanded the case with instructions:
We believe that ‘‘the danger of denying justice by
delay”’ in this case is as clear as it was in Alexander,
supra; Green v. County Board, supra, and Carter,
supra.
We now vacate the stay of August 25, 1970, with
the intention of leaving in full effect and operation
the judgment of the District Court of August 13,
1970. The present District Judge should proceed im-
mediately to hold the necessary hearings upon ob-
jections to the Board of Education plan and there-
after to approve or modify same as the record which
is developed appears to require, and thereupon enter
an order of implementation. The time schedule for
consideration and implementation of this order should,
of course, meet the ‘‘maximum”’ standard set forth
by the Supreme Court in the second Carter case
(Carter v. West Feliciana Parish Schoo] Board, 396
U.S. 290, 293, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970)).
The District Court may, of course, require reports
(including a pupil locator map) and recommendations
(including those of expert witnesses and the Depart-
ment of Health, Education and Welfare) and consider
them in its order of implementation. Id. at 862.
Acting within the terms of his sworn obligation a new
District Judge proceeded to implement this court’s in-
structions.
While he was thus engaged, the United States Supreme
Court decided the third history making case pertaining
to school segregation (Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971)). The opinion for
~ As _,
a unanimous Supreme Court was written by Chief Justice
Burger. In recital of the facts and conclusions of law,
it parallels and controls our decision of this case.
We granted certiorari in this case to review im-
portant issues as to the duties of school authorities
and the scope of powers of federal courts under this
Court's mandates to eliminate racially separate public
senools established and maintained by state action.
Brown v. Board of Education, 347 U. S. 483 (1954)
(Brown I).
This case and those argued with it arose in States
having a long history of maintaining two sets of
schools in a single school system deliberately oper-
ated to carry out a governmental policy to separate
pupils in schools solely on the basis of race. That was
what Brown v. Board of Education was all about.
These cases present us with the problem of defining
in more precise terms than heretofore the scope of
the duty of school authorities and district courts in
implementing Brown I and the mandate to eliminate
dual systems and establish unitary systems at once.
Swann v. Charlotte-Mecklenburg Board of Education,
supra at 5-6. (Footnote omitted.)
These words apply exactly to the fundamental problems
in the instant case also. The District Court order here
under review is designed to ‘‘eliminate racially separate
public schools established and maintained by state action.”
Tonnessee is, as we have noted above, a state ‘‘having
a long history of maintaining two sets of schools in a
single school system deliberately operated to carry out
a governmental policy to separate pupils in schools solely
on the basis of race.’’ (See Appendix A.) We here con-
sider a District Court order designed to ‘‘implement . . .
Brown I and . . . to eliminate dual systems and establish
unitary systems at once.”’
COPY BOUND CLC
certain actions of the school board to be discrimina-
tory, the court also found that residential patterns
in the city and county resulted in part from federal,
patterns, for example, by locating schools in Negro
residential areas and fixing the size of the schools
to accommodate the needs of immediate neighbor-
ings were subsequently accepted by the Court of
Appeals. Swann v. Charlotte-Mecklenburg Board of
Education, supra at 7.
This paragraph applies to the facts of the instant case
without change of a single word.
Chief Justice Burger then turned to the question of
appropriate remedial measures to eliminate state imposed
segregation:
The objective today remains to eliminate from the
public schools all vestiges of state-imposed segrega-
tion. Segregation was the evil struck by Brown I as
contrary to the equal protection guarantees of the
Constitution. That was the violation sought to be
corrected by the remedial measures of Brown I]. That
was the basis for the holding in Green that school
authorities are ‘‘clearly charged with the affirmative
duty to take whatever steps might be necessary to
convert to a unitary system in which racial dis-
crimination would be eliminated root and branch.’’
391 U. S., at 437-438.
If school authorities fail in their affirmative obli-
gations under these holdings, judicial authority may
be invoked. Once a right and a violation have been
shown, the scope of a district court’s equitable powers
SE IN CENTE?.
tea eh’) nel amb o 4 Seti gd Std tear Ra a aa la ahaa eae
fee |
eT Re es ee
wr a
to remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies.
*?e*
In seeking to define even in broad and general]
terms how far this remedial power extends it is im-
portant to remember that judicial powers may be
exercised only on the basis of a constitutional viola-
tion. Remedial judicial authority does not put judges
automatically in the shoes of school authorities whose
powers are plenary. Judicial authority enters only
when local authority defaults.
School authorities are traditionally charged with
broad power to formulate and implement educational
policy and might well conclude, for example, that in
order to prepare students to live in a pluralistic so-
ciety each school should have a prescribed ratio of
Negro to white students reflecting the proportion for
the district as a whole. To do this as an educational
policy is within the broad discretionary powers of
school authorities; absent a finding of a constitutional
violation, however, that would not be within the
authority of a federal court. As with any equity
case, the nature of the violation determines the scope
of the remedy. In default by the school authorities
of their obligation to proffer acceptable remedies,
a district court has broad power to fashion a remedy
that will assure a unitary school system. Swann v.
Charlotte-Mecklenburg Board of Education, supra at
15-16.
The default of school authorities referred to by Chief
Justice Burger is equally illustrated by the history of
our present case.
With this history and these principles before us, a
tabular comparison of the fact situations and District
Court plans presented in the Swann and Kelley cases is
appropriate:
*.
COPY BOUND CLOS
Date of original com-
plaints
No. of schools (before
plan)
No. of schools (after
plan)
Total enrollment
Per cent white students
Per cent black students
Walking distance (after
plan)
No. students bused
prior to plan
No. white students bused
prior to plan
No. black students bused
prior to plan
Extent of segregation
prior to plan
ie.
SE IN CENTETF.
== A.4]
Swann v.
Bd. Ed.
1965
107 (1968-69)
107
84,000 (approx.)
71%
29%
1% miles
23,600
Exact figures not
available, but it
is clear that a
large majority
of students
bused were
white.
In 1969 % of the
black students
were then at-
tending schools
that were either
totally or 99%
black.
Kelley v.
Bd. Ed.
1955
139 (1970-71)
133 (1971-72)
94,170 (1970-71)
75% (75.12%)
25% (24.63%)
1% miles
33,485
30,000
3,500 (approx.)
In 1969 81% of
all white stu-
dents were at-
tending schools
that were over
90% white, while
62% of all black
students were
attending school
that were over
90% black.
~~
A NMANAD + antisite we OD Het! deaead tin
or
" yee eee ee
Net increase in No. of
students bused as a re-
sult of court adopted
plan
No. of additional buses
required
No. of buses obtained to
carry out plan
Ratio of white to black
student population em-
ployed by court ap-
proved plan as guide
Per cent of schools deseg-
regated by. plan within
guide related ratios
— A-42—
Swann v.
Bd. Ed.
13,300
138 54-passenger
buses
Court opinions
do not contain
this information
71%-29%
100% of elemen-
tary* schools
would have
black student
population of
9%-38%.
One race schools remain- Apparently
ing under plan due to none
travel distance
75 %-25%
77% of elemen-
tary schools
would have a
black student
population of
16% -41%; 2
outlying schools
would have a
black student
population of
0%-22%.
5
* Junior and Senior High School desgregation under
the Swann plan was likewise considerably closer to
ideal unitary school standards than the plan approved
by the District Court in this case.
. ome Ge wee
—
COPY BOUND CL<‘
_ — A-43—
The general principles of Swann were, of course, enun-
ciated by the Supreme Court for guidance of District
Courts and Courts of Appeals in all school segregation
cases. In view of the close factual resemblances between
this ease and Swann, these principles, however, apply
here a fortiori.
THE REMEDIAL ORDER OF THE DISTRICT COURT
The nature of the problem facing the District Court
many years after Brown v. Board of Education, 347 U.S.
483 (1954), is vividly portrayed in the statistics and the
table set forth below.*
Racial Composition for the Three Years Preceding
Hearings on Motion for Further Relief
1967-68—85% of the white students attended schools that
were over 90% white.
63% of the black students attended schools that
were over 90% black.
1968-69—80% of the white students attended schools that
were over 90% white.
61% of the black students attended schools that
were over 90% black.
1969-70—81% of the white students attended schoo] that
were over 90% white.
62% of the black students attended school that
were over 90% black.
These figures show that during the three-year period
nearly two-thirds of the black students in the Nashville
system went to racially identifiable schools, and more than
1 These statisties are based largely upon plaintiffs’ exhibits
in the court below, but we can find no contrary evidence of-
fered by defendants.
SE IN CENTE}F.
bh nih salar 5 Satine tole
.
PTR ae ee
Sins pila Bea il Mg «Bs
Tan —
four-fifths of the white students attended racially identi-
fiable schools.
Busing did not come to Nashville by federal court
decree. This record demonstrates that Nashville and
Davidson County have long used extensive bus _trans-
portation as a normal part of their school systems. Busing
was, however, employed wholly disproportionately for the
transportation of its white students as compared to its
black students (30,000 white to 3,500 black). In this
regard the District Judge’s opinion noted:
‘*Since the defendants have consistently transported
large numbers of students to promote segregation,
some adjustment must be made to reverse this uncon-
stitutional practice.’’
The District Court clearly found that defendants had
defaulted in relation to their duty to dismantle their seg-
regated school system prior to 1970. The District Court also
found that although defendants had repeatedly been asked
and ordered to produce an adequate plan, they had failed
to do so. It noted that the School Board accepted as a
policy statement ‘‘an ideal student racial ratio of an in-
tegrated school as one which is 15% to 35% black.’’ Yet its
analysis of the plan actually submitted by the School
Board showed it to be utterly inadequate.
The Board of Education submitted a plan for pupil
integration in August, 1970. Included in this plan was
a policy statement that the school board ‘‘accepts as
an ideal student racial ratio of an integrated school
as one which is 15% to 35% black.”’
The August, 1970 plan made 49 minor geographic
zone changes, and provided for the transportation of
an additional 1162 pupils. The result of the plan was
to leave the elementary schools significantly un-
changed. Six of the 38 high schools and junior high
gree ALITA
+
|
COPY BOUND CLO
iin — A-45 —
schools would remain at least 50 per cent black. Fifty-
seven per cent of the black high school and junior
high school students would attend these six schools.
The racial composition of two schools would be at
least 95 per cent black and four other schools would
be at least 90 per cent black. This would result in 47
per cent of the black students attending schools where
the composition would be above 90 per cent black.
Eight schools, accommodating 20 per cent of the
black students, would operate with 15-35 per cent
black students. Fifteen schools would operate with
95 per cent or above white students. (Footnotes
omitted.)
Concerning the School Board plan, the District Court con-
cluded:
The pupil integration plan submitted by the school
board, viewed in the most favorable light, constitutes
mere tinkering with attendance zones, and represents
only a token effort. It clearly falls short of meeting the
objectives and tests set out in the decisions of the
United States Supreme Court. Swann v. Charlotte-
Mecklenburg Board of Education, supra; Davis v.
Board of School Commissioners, supra; Green v.
County School Board, 391 U.S. 430 (1968). In effect,
the defendant has made no effort to meet its affirma-
tive duty to establish a unitary school system ‘‘in
which racial discrimination would be eliminated root
and branch.’’ Green v. County School Board, supra, at
437-38; quoted in McDaniel v. Barresi, [402] U.S.
[39], 28 L.Ed.2d 582, 585 (April 20, 1971).
Since the defendants have, in effect, failed to submit
a constitutionally sufficient plan, the Court must ex-
amine the other plans. (Footnote omitted.)
The plan adopted by the District Judge was one pro-
posed by the United States Department of Health, Educa-
SE IN CENTEF.
=~ = |
: tion and Welfare. It is described in detail in his Mem-
orandum Opinion, dated June 28, 1971, and in his Judg.
ment, dated July 15, 1971, both of which are by reference
hereby incorporated as a part of this opinion. For our
present purpose it suffices for us to note that in all re
spects which have come to our attention, the HEW plan
approved by the District Judge represents a somewhat
less stringent approach to desegregation than the plan
approved by the United States Supreme Court in Swann,
supra.
Ts
: Major portions of the Court’s comprehensive Opinion
and Judgment, such as those dealing with faculty desegre-
7 gation, school construction and maintenance, and transfer
5 policy, ete., are not discussed herein because no appellate
issues have been presented as to those features.
I The Rule 23 Issue
As to the Rule 23 issue, earnestly if belatedly sought to
3 be raised by appellants, we affirm the Memorandum Order
2 of the District Judge, dated July 21, 1971, for the reasons
j set forth therein, and print same for ready reference as
Appendix B.
Further, we note that this issue was clearly waived by
failure of appellants to raise it prior to trial and final
adjudication of this case.
We also note that such a class action as this dealing
with continuing constitutional violations does not become
moot because of years of delay (much of it attributable to
appellants) which occasioned the graduation of the named,
original student plaintiffs from the school system before
final decision.
a
COPY BOUND CL
4 — A-47 —
Il The Ratio and Residual Effect Issues
(Plaintiffs’ stated Issues 2, 3 & 4)
Where a school system has been deliberately constructed
on a segregated basis by state action, a duty inheres in
the School Board to do more than to establish rules fair on
their face which simply serve to perpetuate the effects of
such segregation. Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1, 26, 28 (1971).
The record in this case supports the District Judge’s
findings that racial discrimination in school construction,
assignment of temporary buildings, assignment of teach-
ers, and assignment of students continued until the close
of the record—if not beyond. The record also discloses a
background of racial discrimination by means of state law
which motivated much of the school segregation. (See
Appendix A)
The fact that population shifts in the metropolitan
school district have helped to some degree to change the
racial composition of some schools during the course of
litigation does not eliminate the duty of the school board
to present a plan for a unitary school system.
Nor, of course, does it alter the duty of the District
Court on default of the school board to require production
of such a plan and order it into effect. Chief Justice Burger
put the matter thus in the Davis case:
‘‘Having once found a violation, the district judge
or school authorities should make every effort to
achieve the greatest possible degree of actual deseg-
regation, taking into account the practicalities of the
situation.’’ Davis v. School Commissioners of Mobile
County, supra at 37.
Perhaps the primary thing that the Swann case decided
was that in devising plans to terminate such residual ef-
OSE IN CENTEF.
So
eR CT Rae Pee eee a ne
Se Loatt AP BOSS BRD EEA SRD
j
a
‘
j
ne
— A-48 —
fects, it is appropriate for the school system and the Dis.
trict Judge to take note of the proportion of white and
black students within the area? and to seek as practical a
plan as may be for ending white schools and black schools
and substituting therefor schools which are representative
of the area in which the students live.
We have noted that the District Judge in Swann em.
ployed a flexible 71% white to 29% black population ratio
as a guide in seeking a practical plan. The Supreme Court
specifically approved his doing so. See Swann vy. Charlotte.
Mecklenburg Board of Education, supra at 16, 23-24. The
District Judge in this case clearly read and followed the
Swann guideline. As to this issue, we find no error.
An earlier finding of ‘‘good faith’’ does nothing to ex-
cuse the defaults and failures shown by this record. ‘*The
measure of any desegregation plan is its effectiveness.”
Davis v. School Commissioners of Mobile County, 40
U.S. 33, 37 (1971). See also Green v. County School Board,
391 U.S. 430, 439 (1968).
III Practical Problems
If there is an appellate issue of substance in this appeal,
it is to be found in the practical problems which appellants
claim have developed since the entry of the District
Judge’s order. Appellant summarizes these issues thus:
A plan which exposes the children in the school
system to undue danger to health and accident, inter-
feres with their education by requiring excessive pe-
riods of time on buses, causes them to leave home
before daylight or to return home after dark, exposes
them to the dangers of travel in old and inadequately
maintained equipment and causes elementary school
children, both black and white, to suffer hardships
2 The area referred to in this case is all of Davidson County.
including the City of Nashville, which is included in the jure
diction of defendant Metropolitan Board of Education.
Pa PMN tp eye or eee
7
COPY BOUND CL
id : —A AI —
to which young children should not be exposed can
hardly be termed feasible, workable, effective and
realistic,
Substantial as these problems appear to be on the sur-
face, there are two reasons why no relief can be granted
in this forum. The first is that no motion for relief pertaan-
ing to these facts has ever been filed by appellant im the
District Court. These statements at this point are allege
tions and they are cortroverted by the appellee. This. of
course, is an appellate court——not a trial court. As appel
lants well know, the arena for fact-finding im the federal
courts is the United States District Court, Until these
claims have been presented in a trial court, with am op
portunity for sworn testimony to be taken and comtmw
verted issues and facts decided by the procesers of ad
versary hearing, this court has no jurisdiction.’
The second reason as to why appellants are emtuthed to
no relief on this issue probably serves to explain the first
The entire ‘‘record”’ upon which appellant hases hue pole
for relief as to practical probleme is a °° Regent te ‘the
Court’ of Dr. Brooks, Director of Sehools of the Metro
politan County Board of Education. This reqvert i+ aiid
October 18, 1971, just over a month after the aqvemime of
school. While we are advised that ot wae semt tw the [=
trict Judge, as we hare noted. ne motion of amy umd) seek
ing any District Court action was ever filed comeermine
2 During the pemdemers of am agnqeall gurewileeteom cof the cae
hes. of course om the appellate com Wiens a Peengeeroen Hig
mihar law te deal with am woe Spree tied qrwitniene certbueelt marenes
in this period comeemnume the seta! termes ef ohh wrndber com jrmettigge
ment under appeal The Diatrnet Cvwrt ema om leone duped
ef the problem and having denermumed its sutton qvertumalbitre = wert
or without hearing) certify tw the agpeliiiatie ccomurt ttihe bese
bility of a remand for « eT un ee
pellate record No myecamers um thie coairt emecemmmpaenees often!
of such a request
The reeord as cheer that aie meanest fiom mommaped! weap otedby Hee
the Dastreet Comet ce nemadiy ait fewest am graurt Mbveretimpee cupaprell
lamts made we mvtawm flaw relned vedios thee [Msenerven 4 lomprt
Se Te
—y
Even more important, the statement on its face suggests
that local authorities in Nashville and Davidson County
have not made good faith efforts to comply with the order
of the District Judge.
Dr. Brooks’ affidavit does present this exculpatory ex-
planation which serves to point in the direction of other
authorities of those responsible for the inconveniences and
hazards of which Dr. Brooks’ statement speaks. The state-
ment says:
The School Board is fiscally dependent in that its
budgets must be approved by the Metropolitan City
Council. In approving the budget of the School Board
on June 30, 1971, Council members demanded assur-
ance that no funds included in the budget would be
used to purchase buses for the purpose of transporting
students to establish a racial balance. The 1971-72
budget did provide for the purchase of 18 large buses
to replace obsolete equipment to provide transporta-
tion for students to the new comprehensive McGavock
High School.
It is clear, however, that neither the Metropolitan City
Council or, for that matter, the Legislature of Tennessee
can forbid the implementation of a court mandate based
upon the United States Constitution. In a companion case
to Swann, supra, Chief Justice Burger, writing again for
a unanimous court, held that an anti-busing law which
flatly forbids assignment of any student on account of
race or for the purpose of creating a racial balance or
ratio in the schools and which prohibits busing for such
purposes, was invalid as preventing implementation of
desegregation plans required by the Fourteenth Amend-
ment. North Carolina State Board of Education v. Swann.
402 U.S. 43, 45-46 (1971). See also Cooper v. Aaron, 358
U.S. 1 (1958).
Dr. Brooks’ statement also furnishes the bus schedule
of the Metropolitan County Board of Education by yearly
—- ee ee on ae urr ry - ore ee re oh RT ere”
COPY BOUND CLO%
. —AJS1—
models. It shows that the Board has an average of 18.9
buses for each of the last 10 model years. The 18 buses
purchased in 1971 were described by Dr. Brooks as “‘to
replace obsolete equipment.”’ It appears from the Metro-
politan Board's own statements that the Board and the
jocal authorities in Nashville did not purchase one piece
of transportation equipment for the purpose of converting
the Metropolitan County Board of Education school sys-
tem from a dual school system segregated by race into
a unitary one, as called for by the District Judge's order.
At court hearing we had been puzzled as to why counsel
for the Board had failed to go back to the District Court
to report on the grievous circumstances which he so
strongly alleged before us. Like most decrees in equity,
an injunctive decree in a school segregation case is always
subject to modification on the basis of changed circum-
stances. Sloan v. Tenth School District of Wilson County,
433 F.2d 587, 589-90 (6th Cir. 1970). Further acquaintance
with the record, which, of course, the District Judge would
have known in detail, leaves us in no further quandry
as to the reasons for counsel’s reluctance.
IV Piaintiffs-Appellants’ Plan
Our review of this record convinces us that the District
Judge’s choice of the HEW plan as opposed to plaintiffs’
plan was well within his judicial discretion. It may not
be ideal, but to us it seems clearly to be a plan for ending
a dual school system based on race and substituting
therefor a unitary one. It promises to work and to work
now. Green v. County School Board of Kent County, 391
US. 430 (1968).
V Plaintiffs-Cross-Appellants’ Discrimination Claim
Plaintiffs-Cross-appellants claim that the grade school
plan discriminates against Negro students in the lowest
elementary grades.
— eae ee
.
,
sE IN CENTE}.
— A5e— 1
The feature complained of in this issue is the trans.
portation of black students in grades 1-4 to outlying
schools, paralleled by the cross-transportation of white
students in grades 5-6. In this regard the HEW plan
appears to follow the pattern of the school plan approved
in Swann. Swann rv. Board of Education, supra at 10.
The Supreme Court made no reference to this feature,
and neither in Swann nor in this case does the record
seem to provide adequate rationale for it. We do not
believe, however, that we can appropriately hold that
the District Judge abused his discretion in approving the
HEW plan which (like the plan in Swann) incorporated
this feature.
It may be that this is a temporary expedient or it may
be that there are practical reasons to justify it for longer
duration. In any event, any adverse effects of this aspect
of the plan can, of course, likewise be brought to the
District Judge's attention when the case is back before
him.
The Intervention
Twenty-four hours before oral arguments in this ap
peal, the United States Department of Justice filed a
motion to intervene as amicus curiae. In spite of the
tive of the Justice Department had not had the oppor-
tunity to read the District Court record in this case and
was not aware in advance of hearing that the claimed
practical problems had never been presented to or adjudi-
cated by the District Judge.
. wef er ese a ow To - ae oP see “ee
i —sa—
One America
This nation has been told by a Presidential Commission
that our country is rapidly becoming divided into two
societies—one black and one white. Rerost or Natiowan
Apvisony Comission on Crvi Disonpers 1 (3/1/68).
The Constitution of the United States was written for
one nation, “‘indivisible.”” As it speaks to men’s con-
sciences, the Constitution argues against division and
apartheid.
In the public domain, however, the Constitution com-
mands. Here the constitutional command is One America.
above do not command the use of busing any more than
they command the use of books, desks, paper, pens, build-
needed in modern life and in modern education. What the
cipal issue of this case is that no one may forbid a school
board (or a federal court) from employing any of the
tools of modern life in carrying out a constitutional man-
date. Davis v. Board of Commissioners of Mobile County,
402 US. 33, 37-38 (1971).
The District Court order in this case specifically re-
tained jurisdiction. Thus, upon our affirmance, the door
of the District Court is clearly open (as it has been!) to
the parties to present any unanticipated problems (not re-
sulting from failure to comply with its order) which may
have arisen or may arise in the future.
We now affirm the finding: of fact, conclusions of law,
and judgments of the Distriet Court.
The District Judge’s order noted that no stay would
issue and we likewise note that any rtay of this order
must be sought from the United States Supreme Court.
—A54—
CHAPTER 37
SEGREGATION OF RACES
Section
49-3701—49-3703. [Unconstitutional.]
Compiler’s Note. Under the decision of Roy v. Brittain
(1956), 201 Tenn. 140, 297 S. W. (2d) 72, the statutes pro-
viding for the compulsory separation of races in the field
of public education are no longer in effect, and therefore
these sections have been omitted. They read:
49-3701. Interracial schools prohibited —It shall be un-
lawful for any school, academy, college, or other place of
learning to allow white and colored persons to attend the
same school, academy, college, or other place of learning.
[Acts 1901, ch. 7, $1; Shan., §6888a37; Code 1932, §
11395.]
49-3702. Teaching of mixed classes prohibited. —It shall
be unlawful for any teacher, professor, or educator in any
college, academy, or school of learning to allow the white
and colored races to attend the same school, or for any
teacher or educator, or other person to instruct or teach
both the white and colored races in the same class, school,
or college building, or in any other place or places of learn-
ing, or allow or permit the same to be done with their
knowledge, consent, or procurement. [Acts 1901, ch. 7, §
2; Shan., § 6888a38; Code, § 11396.]
49-3703. Penalty for violations.—Any persons violating
any of the provisions of this chapter, shall be guilty of a
‘misdemeanor, and, upon conviction, shall be fined for each
offense fifty dollars ($50.00), and imprisonment not less
than thirty (30) days nor more than six (6) months. {Acts
1901, ch. 7, § 3; Shan., § 6888a39; mod. Code 1932, § 11397.]
ALON a APO IEY LIPO ONG AR AE
.
COPY BOUND CL
SN ee RE OL IR HOS res
> —A5—
49.3704. [Unconstitutional ]
Compiler’s Note. This section was held unconstitutional
in Kelly v. Board of Education (1959), 270 Fed. (2d) 209
and is, therefore, omitted. It read:
49.3704 Separate schools authorized —Boards of edu-
cation of counties, cities and special school districts in this
state are authorized to provide separate schools for white
and negro children whose parents, legal custodians or
guardians voluntarily elect that such children attend
school with members of their own race. [Acts 1957, ch. 11,
§1]
CHAPTER 22—TRANSPORTATION OF
SCHOOL CHILDREN
SECTION.
49-2201. Power of boards to provide transportation—Use
to achieve racial balance prohibited.
49-2210. Color and markings of buses.
49-2213. Speed limit.
49-2201. Power of boards to provide transportation—
Use to achieve racial balance prohibited.—Boards of edu-
cation may provide school transportation facilities for
children who live over one and one-half (14%) miles by the
nearest accessible route from the school to which they are
assigned by the board of education and in which they are
enrolled; provided, however, that the boards of education
may, in their discretion, provide school transportation
facilities for children who live less than one and one-half
(144) miles by the nearest accessible route from the school
in which they are enrolled, but the county shall not be
entitled to receive state transportation funds for any
student, other than physically handicapped children, who
live less than one and one-half (14%) miles by the nearest
accessible route from the school in which they are en-
rolled; provided, that nothing in this chapter shall be
construed to prevent a board of education from transport-
_~Y
ing physically handicapped children, regardless of the
distance they live from school, under rules and regulations
adopted by the state board of education with the approval
of the state commissioner of education, and provided fur-
ther, that said boards shall have power to purchase school
transportation equipment, empioy school transportation
personnel, and contract for transportation services with
persons owning equipment, and pay for same out of funds
duly authorized in the budget approved by the quarterly
county court; provided further, that said boards in em-
ploying school transportation personnel and in contract-
ing for transportation services with persons owning equip-
ment are hereby authorized to enter into contracts for
such services for periods of time as long as, but not ex-
ceeding, four (4) years from the date of making such
contracts, it being the purpose of this section to permit a
reasonable degree of employment security for such school
transportation personnel.
Provided, however, no board of education shall use or
authorize the use of any school transportation facilities
for the purpose of achieving a racial balance or racial im-
balance in any school by requiring the transportation of
any student or pupil from one school to another or from
one school district established for his neighborhood to
another. [Acts 1947, ch. 92, § 1; 1949, ch. 233, § 1; C. Supp.
1950; § 2495.1 (Williams § 2495.2); Acts 1957, ch. 10, 41;
1957, ch. 400, § 1; 1970 (Adj. S.), ch. 491, §1.]
Amendment. The 1970 amendment added the last para-
graph to this section.
Effective Date. Acts 1970 (Adj. S.), ch. 491, 42. Feb-
ruary 27, 1970.
[Note that a statute similar to the proviso in the last para-
graph of the statute above was held unconstitutional by
the United States Supreme Court. North Carolina State
Board of Education v. Swann, 402 U.S. 43 (1971).]
a —Ad7T—
Appendix B
MEMORANDUM AND ORDER
(Filed July 21, 1971)
The defendant Metropolitan County Board of Educa-
tion of Nashville and Davidson County, Tennessee, filed
two motions, to-wit, a motion to set aside the judgment
entered in this cause on July 16, 1970, and a motion to
set aside the memorandum opinion filed June 28, 1971,
which motions are grounded on the failure of the Court to
comply with Rule 23 of the Federal Rules of Civil Pro-
cedure.
Apparently these motions were filed without counsel for
the defendant having made even a casual perusal of the
record in the consolidated cases.
The history of the consolidated cases reveals:
The first cause of Robert W. Kelley, et al. v. Board of
Education of the City of Nashville, Davidson County,
Tennessee, et al., Civil No. 2094, was filed on September
23, 1955. This case will be hereinafter referred to as the
“first ease.’”’
The case of Henry C. Maxwell, Jr., et al. v. County
Board of Education of Davidson County, Tennessee, et al.,
Civil No. 2956, was filed on September 19, 1960. This case
will be hereinafter referred to as the ‘‘second case.”’
These cases were consolidated by consent order filed
September 10, 1963.
Rule 23 of the Federal Rules of Civil Procedure as to
class action was amended, effective July 1, 1966. Prior to
the amendment, class actions were referred to as ‘* spuri-
ous’”’ or ‘‘true”’ class actions. Prior to the amendment, the
requirements for the maintenance and determination of
_—s
the existence of a proper class action were less stringent
than those requirements as set forth in Rule 23, as
amended. Prior to its amendment, Rule 23 did not require
detailed findings and determinations by the Court as set
forth in subsection (c) of the Rule, as amended.
First Case
By Memorandum filed on January <). |! the Honor
able William E. Miller determincd - 0 hts of t
plaintiffs and other similarly situa , the pu
schools of the City of Nashville wai ation or
account of race are recognized and z
ord, Min. Book 19, at 679.
By findings of fact and conclusions of aw Sot on Febru
ary 20, 1957, the Honorable Willian, bo Miller adjudieated
that Case No. 2094 was ‘‘properly brought as a class action
under Rule 23 (a) of the Federal Rules of Civil Procedure.
Title 28 U.S.C.’’ Record, Min. Book 19, at 783.
On August 15, 1958, the case was appealed to the Sixth
Circuit Court of Appeals. On July 20, 1959, the Court of
Appeals affirmed the judgment of the District Court,
thereby affirming the determination of the Honorable Wil-
liam E. Miller that this was a proper class action.
On September 10, 1963, a consent order was entered in
Case No. 2094, the first case, and Case No. 2956, the second
case, in which the parties agreed and stipulated that the
functions and powers of the defendants Board of Educa-
tion of the City of Nashville and County Board of Educa-
tion of Davidson County were vested in the Metropolitan
School System, and the ‘‘Transitional Board of Education
for the Metropolitan Government of Nashville and David-
son County’” was substituted as defendant. All orders,
judgments, and other proceedings in the first case and the
second case were made effective as to the substituted de-
af
——
GRMN AN NE LONE LE EMOGIIES SLOP LITE, IELOS ION 0 LILA L LE ELIE ELAS EAE RES S a2
COPY BOUND CL<¢
aT
fendant. There was an express provision that all orders,
judgments and proceedings entered previously would re-
main in full force and effect, and that none of the rights of
the parties would be affected or prejudiced.
By order of December 3, 1964, the Metropolitan County
Board of Education and its board members were made
parties defendant in lieu of the Transitional Board. Again,
there was a provision that all orders, judgments and pro-
ceedings in both cases would remain in full force and ef-
fect and that none of the rights of any parties would be
affected or prejudiced.
By order entered on October 7, 1968, certain additional
parties, including infants and their parents, were added
as intervening plaintiffs to have full standing as plaintiffs.
The two cases were again appealed to the Sixth Circuit
Court of Appeals. The opinion of the Court of Appeals was
filed in this Court on February 8, 1971.
Second Case
On November 23, 1960, the Honorable William E. Miller
adjudicated that ‘‘this is a class action brought not only
by the plaintiffs for their own benefit but also on behalf of
all other persons similarly situated.’’ Record, Min. Book
24, at 114.
This case was appealed to the Court of Appeals for the
Sixth Circuit on February 20, 1961.
The orders in the consolidated cases of September 10,
1963, December 3, 1964, and October 7, 1968, noted above
also apply to this case.
As appears above, the Honorable William E. Miller care-
fully adhered to Rule 23 as it existed at the time of the
filing of these two cases. The Court of Appeals did not
question his determination, but affirmed the actions which
he took in the matter. In addition, in the latest mandate
WEE MO BHM
SE IN CENTE}F.
r “a
: to the District Court received from the Court of Appeals
i in February, 1971, this Court was instructed to implement
the July 16, 1970 opinion of the Honorable William E.
Miller.
This Court does not feel once a class action has been
adjudicated and the action of the trial court has been
reviewed by the Court of Appeals, that it is necessary or
proper to continue to redetermine the standing of the
F plaintiffs to represent a class. The United States Supreme
Court in its order implementing the amendment to Rule
23 states: .
the Rules of Civil Procedure shall take effect on July
1, 1966, and shall govern all proceedings in actions
then pending, except to the extent that in the opinion
of the Court their application in a particular action
} then pending would not be feasible or would work in-
; justice in which event the former procedure applies.’”
:
“*. . . the foregoing amendments and additions to
3
:
See also Escott v. Barchris Construction Corp., 283 F.
Supp. 643 (S.D. N.Y. 1968); Polakeff v. Delaware Steeple-
chase and Race Assn., 264 F. Supp. 915 (Del. 1966).
This clearly indicates an intent that there should not be
a continuous readjudication of this question in cases
where there has been a lengthy history of litigation, both
in the district and the appellate courts. Frankly, this
Court feels that it is not feasible or practical to have
continuous adjudication of such items.
In view of the above, the Court is not required to deter-
mine (1) whether this question should have been raised
* Paragraph 2, Order of the Supreme Court of the United
States, February 28, 1966, reporting amendments to the Federal
Rules of Civil Procedure for the United States District Courts
to the United States Senate and House of Representatives. This
is reported in 15 L.Ed.2d Ixxv.
Ss POS ATS OTE hte PIE BENET Seba OG A ROT eS NIE FEI I EE Me ED
ay ee Ene
COPY BOUND CLO
w— are
prior to the adjudication of the cause, and (2) what, if
any, effect the alleged failure to comply with Rule 23
would have on the right of the individual plaintiff chil-
dren who reside throughout Davidson County, Tennessee,
to assert their constitutional privilege to attend an inte-
grated school in a unitary school system.
The motions are hereby denied.
L. CLURE MORTON
United States District Judge
McCrer, Circuit Judge (Concurring). I agree with the
majority opinion on the issues it discusses. Nevertheless,
I wish to add a few observations concerning our reasons
for rejecting plaintiffs’ cross-appeal and affirming, for the
present, the District Court’s selection of the HEW plan.
| The District Court, in deciding to reject plaintiffs’ plan,
recognized that under Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971); Davis v. School
Commissioners of Mobile County, 402 U.S. 33 (1971); and
Green v. County School Board of New Kent County, 391
U.S. 430 (1968), its duty was to select the plan that ap-
peared to be the most effective in eradicating the effects
of past segregation, unless it would be impractical to adopt
such a plan. The court found that plaintiffs’ plan was
‘impractical and not feasible’? because of the costs and
transportation problems that would result from the in-
clusion of certain out-county schools in the plan. The court
also relied upon the fact that plaintiffs’ plan left to the
school board the specifics of pupil assignment, grede or-
ganization, school structuring, and school district zoning.
My colleagues and I agree that there is no need at this
- juncture to hold that the District Court abused its discre-
tion in thus preferring the HEW plan over that of plain-
tiffs. The HEW plan promises to accomplish a significant
degree of integration, and it is a plan that promises
SE IN CENTE}F.
— vs am .
realistically to work and to work wow Gereem © © enmity
School Board of New Kent County. supra, MAUS «&
439. Although plaintiffs’ plan might have more effectymed)
desegregated the district's schools, ite imelusvem ot ow
lying schools and its lack of specuficsty memderwd ot, um ‘the
court's opinion, impractical and anfeasibhe Sumew th fhy
trict Court has retained jyarimdietion om emder tw sagqverma
the implementation and effectivemess of the HIE Wyle.
plaintiffs have the option ef revising thea gil tw elm
nate the defects noted bx the cowrt amd meqm@estiome thy
court to make specifie changes om the plan te premeiy on
; a practical way. more effective amtewmatnem Tt the come
should then find that palanwty ffs golem v= — feomasiliale sumed! quent
gogically sound.” Kohomeom 9 Shu lie © ommty Bowne 6
Education, 442 F 2d 2), De ith Cur) om md MN
F. Supp. S37 (WE Dem TR) ype! —gorwndione Su
71-1966 (6th Cor). ot wand tee meqmed) te adhe the
plan. See Harrematon ¢ ¢ whyantt Comma Bomnd ot Bam
feom, No. 721579 (Sth Cur Maw 1h TTD) Mam »
Board of Commiurmomers ot Cote wt Aectiwom Wireman
453 F 2d 250. M2 ith Cyr WTL) weet fled oT me
3491 (US. Mare 30 NOTE) CN Th USO) Rete
Shelby C ommte Beard of Fda atne exapee Drie Bethan
Destrwt of the Cote ot Potion Joo. 448 FP Bd WT HT
} (6th Cir). cert) dean d Sieh TM OT OTT Te tithe cpm:
eal eorewmetamews of thins came tihpemetiinme — tithperme ue mee eee
to remand mand thhaervetoy —qunemcuilills — permommliime — cempaqebbeemnyeerrns.
then ef the first dhe regettiom gull worubemed) qitie cfiont on
Chane sedpened diyat reed ttlneet gorse, ailitier Treg al Titi:
trom, realy wemllly to wort nae
a a ec
CCowrt aboqasedd ite yseemetiqgn om aelonetiyme a polkere hes eben
tae gorwomationn Honnmeclbeom ott bessieagrrsoagrsmntt name comp lolhgeett oetbuilbilinsees spent!
Chowne ommrwomitts Hh llamserrs oe mynttinaulllly —Hlhwartt—ailttilavowmpetth: flee yclbens
aagegerens wd los tlhe Songorrsomyee Mme) oe See ormve oapepeeenmaens the Hpsee
comtaumed a yeroreysnem tihuet om aa meeyuertis neseemeibibes any
COs SCM OBS
cei ttlbwe Hiegattomnrsess ath tine TW olbeee witiaeetioed! lhe nelbeenetnitfts
ibperrvrsie: — tee gpemnnyerrvmaee ceed) lhoesthoorrvimmae Hoesgattrarnre bests reeecaepaenes
oll ebbuilbdierers, am gerrnetlbes corner lherennsel: Thera’ ‘he gtttpeaged) coed danerttanay
auethnowolis welkuilbe alll! lbpilbdiervegp, ump gottoaeilbess trv sgn) gays ocnrmenned) tthe
ammanvers ccitts anebanenlbs—— Sone ermine vennuremanets bee rrveeped! ne cnnereernennrennlllte
aupgprreorertnag cums leone seameyylbors ieee -eyppevilbart ‘eeredbarenqaane of) ot thntee
gee enmectesomnnattills adbssypeavrinth: rregeetmnl! eneinpeneeti ‘Why pester tae
ypeervenetills wocomes: ranch rroauipateedll ine thane Baupamtennene | Vener! seeds (be
W ignaerti lind) eet! llissecrnpsss tt Mhovtvevoncver tlhe WPiesterninet (C taatett oat
Sanremo, ae aapoqomreonciiegs ‘tlhe condbenttivony col! tilbers ‘hennttnaenye al ‘ithe
ee a redignet
idennene (38 kee ate omnes merenmnrt Meemagpneyrteger ys cnurryteamnemeerennett vemeed:
wwistlbs tHibpe dlibettinmgeets rmvessecersengttinwen iHbeat) cconnee turns enesetanes robante:
thaws tAMbve sevengurss. onttttbon WMABY: Th ees) raged Thee conereeenmrtead lle: Seon
UW Weemtiettt, Who dttiendiamg — Beannt Humor WR A
Hem, WM a WR TMA Yoredy Hebbbeewrnnee tthe
Mangpenvernane MC hompyrt) dbeveneaneane one Serene tthe Wbpstyrrseet) ' teanerty rr
ipovetrsndl ogy neers veancedl! odboue ormeanpeenaseed) Vor tlhe aeetbeaned) (eannered) Woeecenatnas
wpenovonneg: vottlbvess rreenneanamnes, itMbee yodbnee oceanr trimmed) tee aplbiney tbe
iprragpeeesttinomnnntits ‘ovnnnddees cane Vbbber edt ortbsilbdtreen canned ‘heer: ppanereennte
cuvitildpoest—aibporactitnge omy eedhenerntrineenenl) rrnestedfteertrneny thereto
Sree Weemthettn Mhecttttonttarn Maneent Widoreortpyiny Tee
On ee 2
Mhimanee: Ul cgueenneae. Hpemncnrrcreer, baat orreennegened) cn rnd coceppeeeed ont
iibies tHivmegne, cammanll cadimonees Uo rertesth tre crnnntddes ot cd benne: oli othe
TTT IMM: ULL LM ‘bbb peter
Lipp) ttle Headlberncrnee cerapeeeneneentts
Wewiibewent: ce ccraneenpeelbongs —fnneetytHbeentrinene, coedbengteneny odor cabans
Mint qyedboeeess gs cormeantieees Menmedbere a conereegonenedbeethtongs coetegenettonin
oy Uberti -ctrepedboenittcs camped! fleets gpnpereertes on otnenpeerrrertrnt dill:
vilbeetiibnees itbbes Hie gpdberneseeed) ar toeemte afore cerned opernttrertannn
crinebbprtiinwen Ubveerngnnesee tides etbaee ceennes tthe ceetbeane Wenner! ppeerveddeeet
TD r. fiw Warren (canes) Ptr Fomeorrtim =e
Wot) Tee, TR STM tyr ROY Ht ipa Wh vverecrrone econ
verartig Tiered ae Difheeetien SEPP CWE odt tte
— A-64 — B
1970); Brice v. Landis, 314 F. Supp. 974, 978-79 (XD.
Cal. 1969), or in terms of an abuse of the court's discre.
tion in fashioning an ‘equitable remedy to rectify the ef.
fects of past injustice. Although adoption of such a plan
— ———— «a
might be justified on the basis of the nature of facilities —
involved, or on practical, administrative considerations, or
on the need to adopt a temporary expedient to assure at |
least immediate substantial progress toward the creation
of a unitary school system (see Swann v. Charlotte-Meck-
lenburg Board of Education, supra, 306 F. Supp. at 1298),
we cannot determine the reason for the District Court's
decision because the court did not discuss this issue in its
memorandum opinion. (Ordinarily, in such a case, we
would remand for findings and conclusions by the District
Court. See Gordon v. Jefferson Davis Parish Schod |
Board, 446 F.2d 266 (Sth Cir. 1971) (per curiam).
However, the same considerations that argue against
remand on the issue of the court's adoption of a less ef.
fective plan are persuasive here as well. The integration
plan adopted by the court has been in operation during the
1971-72 school year, and the court has retained jurisdic-
tion of this case to oversee and, if necessary, to modify the
plan's implementation. The defendant school board has
indicated in this court that it intends to seek modification
on the basis of asserted practical problems that have be-
come apparent since the plan was put into effect. Plain-
tiffs have indicated dissatisfaction with the adoption of a
plan less effective than that proposed by them, and we
have indicated that they may seek further relief in the
District Court. In these circumstances, I agree that we
should not now disturb the District Court’s approval of
the HEW plan and possibly encourage the kind of delay
and inaction that has caused this case to pend for 17 years.
Plaintiffs may seek modification of the court’s order on
the ground that the plan places a disproportionate burden
on black children and their parents, and this issue can be
— aa
litigated and determined before the beginning of the 1972-
73 school year. In this way, the disproportionate burden
asserted by plaintiffs will exist at most for only a short
period of time and will amount to no more than a tran-
sitory phase (assuming the absence of sufficient justifica-
tion for maintaining it permanently) in the over-all cre-
ation of a unitary school system.
It is to be emphasized, nevertheless, that our refusal to
take affirmative action on this issue at this time results
only from the peculiar timing, posture, and history of this
case. Our opinion should not be construed in any way as
a qualification of the principle that a district court has an
obligation to endeavor to distribute the burden of integra-
tion equitably on all races and that any deviation from
this norm, without a compelling justification, is impermis-
sible.
Finally, I observe that the majority opinion does not
discuss plaintiffs-appellees’ contention that they should
be awarded double costs and attorneys’ fees because the
school board’s appeal is frivolous within the meaning of
Fed. R. App. P. 38. Since the class action issue obviously
has no merit, and since the only issue raised by the Board
that might have merit has never been presented to the
District Court, I would award the requested double costs
and attorneys’ fees. See Coppedge v. Franklin County
Board of Education, 404 F.2d 1177, 1179-80 (4th Cir.
1968); cf. Monroe v. Board of Commissioners of City of
Jackson, Tennessee, supra, 453 F.2d at 262-63. The long
history of this litigation would, in my opinion, make such
an award particularly appropriate. Cf. Clark v. Board of
Education of the Little Rock School District, 449 F.2d 493,
499 (8th Cir. 1971), cert. denied, 40 U.S.L.W. 3400 (U.S.
Jan. 27, 1972) (No. 71-751).
Se
E IN CENTE}?.
-— A.6 ... "a
APPENDIX “C”
United States Court of Appeals
for the Sixth Circuit
Robert W. Kelley, et al., 5
Plaintiffs-Appellees,
vs.
Met litan County B i of Ea. p NO 71-1778-79.
ucation of Nashville and David-
(Filed July 25, 1972)
Upon consideration of the Appellants’ motion for a stay
of the mandate pending an application to the United
States Supreme Court for writ of certiorari and the Ap-
pellees’ response in opposition thereto,
It is ordered that the motion be and hereby is denied.
Entered by order of the Court.
JAMES A. HIGGINS
Clerk
eer Cette |
*.
COPY BOUND CLC
'~ — A467 —
APPENDIX “‘D”
In the United States District Court for the Middle
District of Tennessee, Nashville Division
Robert W. Kelley et al., Henry C. )
Maxwell, Jr., et al.
v. Civil Actions
Metropolitan County Board of Ed- Men, 2008, S008,
ueation of Nashville and David-
son County, Tennessee, et al.
REPORT TO THE COURT
(Filed October 19, 1971)
The undersigned Director of the Metropolitan Public
Schools files this report of the results of the first month’s
operation under the court ordered plan for further deseg-
regation of the Metropolitan Nashville School System
adopted by the Court on June 21, 1971, following, with
some minor modification, the recommendation of the De-
partment of Health, Education and Welfare.
The plan adopted was effective as of September 1, 1971,
and required the reorganization of the grade structure of
82 schools and changed the racial composition and popula-
tion of 94 schools. The following is an analysis of the
results of the operation oi the plan for approximately one
month.
SE IN CENTE}?.
—A68— |
Total number of elementary and secondary
DEE dudasduletstentsakhunekeehnemann 133
Number of schools ideally integrated (be-
tween 15%-35% black) .................. 47
Percentage of schools ideally integrated (be-
tween 15% and 35% black) ............. 35%
Number of schools over 50% black ......... 13
Number of schools over 40% black .......... 41
Number of schools less than 15% black ..... 31
Number of schools over 90% white ......... 31
(not in all instances the same schools as
the less than 15% black)
Total enrollment as of June 1971 ........... 93,488
Projected enrollment for 1972 ............... 96,000
Actual enrollment as of October 12, 1971 ... 87,770
There are 49,000 students eligible for transportation
under the plan adopted by the Court. Of this number,
approximately 28,000 pupils are being transferred from
their original schoo] zone to a new school zone in order to
increase integration. During the prior school year, the
mileage of the school buses in transporting the school
children was about 3,000,000 miles. Under the plan, the
mileage is approximately 6,000,000 miles. There are 211
buses available with an average capacity of 70 children
per trip. If all buses were completely occupied, 14,770
children could be transported. In order to handle the
children eligible for transportation, it is necessary for all
buses to make three round trips daily and for some of
the buses on shorter routes to make as many as five trips
daily.
In order to comply with the Court’s order and to meet
pupil transportation needs, all reserve buses were put
a
|
COPY BOUND CLOS
_" — A-69 —
into service. Pupil eligibility for transportation was ex-
tended from 114 to 1% miles which means that only chil-
dren living more than 1% miles from school are eligible
to be transported. The high school day was shortened
from 7 hours to 6 hours. 133 school openings were stag-
gered to begin at 30 minute intervals from 7:00 A. M. to
10:00 A. M. The closing period of the schools was also
staggered at 30 minute intervals and the latest schools to
let out are at 4:00 and 4:30 P. M. in the afternoon.
Transportation for field trips and special fine arts per-
formances which had heretofore played an important role
in the educational opportunities of the pupils was elimi-
nated.
During the period of operation, there have been an
average of 12 breakdowns per day. Since all buses are in
use, the pupils on the buses having mechanical trouble
must wait until another bus has delivered its children and
returns for them. The maintenance shops have only four
bays to service and repair the 211 large buses and the 60
small special educational buses which have a capacity of
some 12 to 18 students and are used exclusively for special
education, that is, for the transportation of the handi-
capped and/or retarded. Prior to the adoption of the
present court order, the maintenance department had 4%
hours in the middle of each day to service the buses. Only
2 hours are now available because buses are on the road
from 6:00 A. M. to 10:30 A. M. transporting students to
the staggered openings of the schools and from 12:30
P. M. to 6:00 P. M. returning students from the staggered
closings of the schools to the various pick-up points. It is
anticipated that the frequency of breakdowns will in-
crease as a result of the extensive use of the equipment, its
age and the lack of detailed maintenance.
The community reverts to Central Standard Time the
last of October. During the late fall and winter months,
— —s
aa .
E IN CENTE}F.
A tet ee i nade
_— hes i, i,
tates eesti taste mec sk nicntin rae Salat an om BK
a
—e
darkness comes earlier. The Weather Bureau has in-
formed the School Board that on December 1, 1971, a
typical winter day, the sun will rise at 6:39 A. M., Cen-
tral Standard Time, and will set at 4:32 P. M., Central
Standard Time. This assumes good weather. In bad
weather, darkness comes earlier. Early and late starting
times of school create safety hazards for the students,
many of whom during the winter will be leaving home
or returning to their homes after dark. Buses serving
schools opening at 7:00 A. M. begin their routes at 6:05
A. M. which is 34 minutes before sunrise on December 1.
Children must walk to the designated pick-up points.
Consequently, the children picked up at the beginning of
the route may be on the street as much as one hour be-
fore sunrise. It should be remembered in this connection
that children who live within a mile and a half of the
school to which they are assigned are not furnished trans-
portation and many of these children will begin their
walk to their designated school in darkness and some of
them will return home from school walking in the dark.
Sundown on December 1, 1971, is at 4:32 P. M., with
darkness following immediately. Elementary school chil-
dren on late shifts who live 1! miles or less from their
schools which let out at 4:30 will be walking home in
darkness and in many instances without street lights or
sidewalks.
The school buses that serve the 10 schools that open
at 7:00 A. M. begin their routes at 6:05 A. M. or 34 min-
utes before sunrise. The children walk to designated
pick-up points. Of the 10 schools opening at 7:00 A. M.,
there are neither street lights nor sidewalks in the imme-
diate vicinity of 7 schools. There are street lights but no
sidewalks in the immediate vicinity of one school. There
are 28 elementary schools which open at 10:00 A. M. and
close at 4:30 P. M., two minutes before sundown on De-
cember 1. There are 25 schools which open at 9:30 A. M.
COPY BOUND CL‘
’ —<* =
and close at 4:00 P. M. Many elémentary school children
eligible for transportation who attend the schools clos-
ing at 4:30 will be returned to their pick-up points about
an hour and 15 minutes after sunset. Many of those at-
tending school closing at 4:00 P. M. will be returned to
their pick-up points about 45 minutes after sunset. Of
these 53 schools, 16 have neither street lights nor side-
walks in the immediate vicinity. 5 have no sidewalks
but have street lights and 2 have no street lights but have
sidewalks. These children, both walkers and riders, are
pleeed in a hazardous position when returning home from
school or from the pick-up point.
The average time of a student on a bus transported
across town to school is 45 minutes one way. The longest
period of time required for cross-town transportation is
144 hours each way. 28,000 pupils are transported from
the suburbs to the inter-city or vice versa each day. There
are approximately 400 round trips across town by the 211
buses each day.
In many instances, the bus routes follow the interstate
highway because of the saving of time involved by use of
| these highways. The hazards of transportation are in-
creased, however, by use of the interstate highway sys-
tem. This is because when there is a breakdown on the
interstate, the dangers to the students being transported
are much greater than if the breakdown had occurred off
the interstate highway system. The use of the interstate
highway system is not desirable and the Metropolitan
Public School System would prefer to route its buses some
other way. Because of the lack of buses and the necessity
of compliance, the Metropolitan School System has no
choice but to use the interstate highway system and re-
duce the time required for transportation so that buses
can make more trips and haul more students and thus com-
ply with the Court’s decree. Of the 211 buses in service,
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18 are new. Only 18 additional buses could be acquired for
financial reasons.
The age of the buses used to transport the children js
as follows:
1971 models—18 buses
1970 models—15 ‘
1969 models—10 ‘‘
1968 models—10 ‘‘
1967 models—67 ‘‘
1966 models—25 ‘‘
1965 models—14 ‘‘
1964 models—12 ‘‘
1963 models— 5 ‘‘
1962 models—13 ‘‘
1961 models— 5 ‘‘
1960 models— 4 ‘‘
1959 models— 2 ‘‘
1958 models— 8 ‘‘
1957 models— 3 ‘‘
I have heretofore stated that under the plan, it is neces-
sary for the buses to travel approximately 6,000,000 miles
per year. Of this mileage, the 211 large buses travel a little
more than 5,000,000 miles per year or an average of 140
miles per day. The remaining mileage is accounted for by
the small special buses transporting the handicapped and/
or retarded children.
The foregoing transportation plan was approved by the
Board in anticipation of the availability of Federal funds
to purchase additional equipment and defray additional
operating costs. The anticipated funds have not been
forthcoming. Application has been made to the Regional
as
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F . — so
Office of Education, Division of Equal Educational Oppor-
tunity, Atlanta, Georgia, for assistance. It is not antici-
pated that any additional funds will be made available for
the transportation of students in view of the public dec-
laration of the President of the United States that no pres-
ently authorized funds will be used for this purpose. Esti-
mated costs of additional equipment, operation and main-
tenance are:
Eighty-seven 84-passenger buses at $16,300. $1,418,100
| Maintenance equipment ...........--+-e:: 177,000
Operation costs for one year .........++--- 700,000
Maintenance facilities and land ............ 1,350,000
Installation of safety loading zones at 42
SE cb ikkcccccnducoetedccesecescesecs 56,000
Total $3,701,100
The School Board is fiscally dependent in that its budgets
must be approved by the Metropolitan City Council. In
approving the budget of the School Board on June 30,
1971, Council members demanded assurance that no funds
included in the budget would be used to purchase buses
for the purpose of transporting students to establish a
racial balance. The 1971-72 budget did provide for the
purchase of 18 large buses to replace obsolete equipment to
provide transportation for students to the new compre-
hensive McGavock High School. Notwithstanding the at-
titude of the City Council, the School Board is now pre-
paring to make application to the Council for additional
funds to acquire additional buses so that the plan adopted
by the Court may be carried out. If funds were made
available for this purpose and orders were placed for
buses today, they could not be manufactured and de-
livered to the School Board for use earlier than six
| months from the date of the order. Consequently, regard-
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— A-74— P
less of whether additional funds are or are not obtained
or whether new buses can or cannot be acquired, inade.
quate transportation facilities and equipment will con.
tinue to require extended scheduling of school openings
and closings and extended distances non-bused children
must walk to and from school. In addition, the School
Board will continue to operate without a reserve fleet of
buses to care for emergency situations. The result is that
there will be serious interruptions of transportation serv-
ice during the cold winter months and these interruptions
will constitute a hazard to the health of the students as
well as a safety hazard. Unless unanticipated assistance
is forthcoming promptly, I do not see how the present plan
can continue safely during the winter months.
Dated: October 18, 1971.
/s/ ELBERT D. BROOKS
Director of Schools
Metropolitan County Board
of Education
, PT a RS ee
se det 3h)
Caen Retah bene eatin
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£2 ELD AOS S ESLER REA Hn ae
State of Tennessee
County of Davidson
Elbert D. Brooks, being first duly sworn, states that he
has read the foregoing Report to the Court and that the
statements made therein are true to the best of his knowl- ?}
edge, information and belief.
Pi Bid iit Abe ERIN BREA re
of
3
$
/s/ ELBERT BROOKS
Subscribed and sworn to before me this 18th day of
October, 1971.
NINA L. PHELPS
Notary Public
My Commission Expires Feb. 7, 1973.
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pole
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.