# Appendix — Metropolitan County Board of Education v. Kelley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1001

## Text

_— —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

—s a

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.

—*

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

; —>

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

—_*

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

= a

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NT Re a ee am

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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

Re

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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

-— =

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

—

— A-13 —

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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—_—e

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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— 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

*

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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

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ypeervenetills wocomes: ranch rroauipateedll ine thane Baupamtennene | Vener! seeds (be
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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:
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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
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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 |

*.

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'~ — 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

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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,

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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‘

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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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— A-72 —

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

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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.

x
pole
.

COPY BOUND CLOSE IN CENTE}t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1323%3A2. Public record. Not legal advice.