Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief of Defendants/Appellees/Cross-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W. KELLEY, et al., ]
]

Plaintiffs ]
]

VS. ]
]

METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ]
et al . , ]

]
Defendants/ ] NOS: 85-5837/5838
Third Party Plaintiffs/ ]
Appellees/ ]
Cross-appellants ]]

VS. ]
]

STATE OF TENNESSEE, et al., ]
]

Third Party Defendants/ ]
Appellants/ ]
Cross-appellees ]

REPLY BRIEF OF DEFENDANTS/APPELLEES/CROSS-APPELLANTS

William R. Willis, Jr. 
Marian F. Harrison 
WILLIS & KNIGHT 
215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600
Attorneys for Defendants/ 
Appellees/Cross-appellants

ORAL ARGUMENT REQUESTED



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W. KELLEY, et al., ]
]

Plaintiffs ]
]

VS. ]
]

METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ]
et al . , ]

]
Defendants/ ] NOS: 85-5837/5838
Third Party Plaintiffs/ ]
Appellees/ ]
Cross-appellants ]

]
VS. ]

]
STATE OF TENNESSEE, et al., ]

]
Third Party Defendants/ ]
Appellants/ ]
Cross-appellees ]

REPLY BRIEF OF DEFENDANTS/APPELLEES/CROSS-APPELLANTS

William R. Willis, Jr. 
Marian F. Harrison 
WILLIS & KNIGHT 
215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600
Attorneys for Defendants/ 
Appellees/Cross-appellants

ORAL ARGUMENT REQUESTED



TABLE OF CONTENTS

Page
Table of Authorities.............................. - ii
Argument ..........................................  1
Certificate of Service ............................  5

1



TABLE OF AUTHORITIES
Page

Cases
Alexander v. Youngstown Board of Education,

675 F. 2d 787 ( 6th Cir. 1982).................... 2
Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976) . . 3,5
Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) . 2
Brinkman v. Gilligan, 518 F.2d 853 (6th Cir. 1975) . 2
Brinkman v. Gilligan, 583 F.2d 243 (6th Cir. 1978) . 2
Brinkman v. Gilligan, No. C-3-75-304,

(S.D. Ohio 1985)................................ 2
Brown v. Board of Education, 347 U.S. 483,

74 S.Ct. 686, 98 L.Ed.2d 873 ( 1 9 5 4 ) ............ 2
Dayton Board of Education v. Brinkman,

443 U.S. 526 ( 1 9 7 9 ) ............................ 2
Evans v. Buchanan, 379 F.Supp. 1218 (D. Del. 1974),

affd, 423 U.S. 963 ( 1 9 7 5 ) ...................... 5
Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441,

52 L. Ed. 2d 714 ( 1 9 0 8 ) ..........................  2, 3
Green v. Mansour, ___ U.S. ___, 88 L.Ed.2d

371 (1985)......................................  3, 4
Hart v. Community School of Brooklyn, 383 F.Supp.

699 (E.D.N.Y 1974), affd, 512 F.2d 37
(2nd Cir. 1975) ................................ 5

Milliken v. Bradley, 433 U.S. 267 ( 1 9 7 7 ) ..........  3, 4
Reed v. Rhodes, 500 F.Supp. 404 (N.D. Ohio 1980) . . 2

Other Authorities
Eleventh Amendment ................................  1, 3

ii



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W. KELLEY, et al., ]
]

Plaintiffs ]
]

VS. ]
]

METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ] NOS: 85-5837/5838
et al., ]

]
Defendants ]

]
VS. ]

]
STATE OF TENNESSEE, et al., ]

]
Third Party Defendants ]

REPLY BRIEF OF DEFENDANTS/APPELLEES/CROSS-APPELLANTS

The Metropolitan Board of Education, et al. (Metro) hereby 
responds to the state defendants' argument in opposition to 
Metro's appeal from the District Court's total failure to 
consider pre-1981 costs of desegregation contained in Section I 
of the state defendants' Second Brief.

1. The state defendants have not referred to, nor can 
they find, cases which limit, as a matter of law, necessary 
ancillary relief against state defendants to desegregation costs 
incurred after their entry into the lawsuit or their adjudication 
of liability, whether on Eleventh Amendment grounds or otherwise.

1
See pp. 37-38 of Metro's Principal Brief.



2 . In Brinkman v. Gilligan, No. C-3-75-304 (S.D. Ohio
1985) (Addendum A to State's Principal Brief), the state defen­
dants' liability was adjudicated and ancillary relief was awarded
long after the local school system was ordered to implement a

2
desegregation plan.

3. Even though Ohio had not mandated segregation at the
time of Brown, the District Court in Brinkman, supra, at p. 10,
recognized that "if a school system was intentionally segregated
at the time of Brown I, the school officials are under a
continuous duty to disestablish the dual school system...,.
[Further,] [e]ach instance of a failure or refusal to fulfill
this affirmative duty to eliminate segregation 'root and branch'

3
constitutes the constitutional violation."

4. In Brinkman, supra at pp. 8-9, the District Court gave 
full consideration to the Eleventh Amendment defenses of all 
defendants and determined that this case fell well within the 
exception to the Eleventh Amendment provided by Ex Parte Young.

2
See Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974); 

Brinkman v. Gilligan, 518 F.2d 853 (6th Cir. 1975); 583 F.2d 243, 
245 (6th Cir. 1978), n. 2; Dayton Bd. of Educ. v. Brinkman, 443 
U.S. 526 (1979); Brinkman v. Gilligan, No. C-3-75-304 (S.D. Ohio 
1985), p. 1.

3
See also Alexander v. Youngstown Bd. of Educ., 675 F.2d 

787, 793 (6th Cir. 1982); Reed v. Rhodes, 500 F.Supp. 404, 426 
(N.D. Ohio 1980), and discussion at pp. 15-17, Metro's Principal 
Brief.

2



5. Green v. Mansour , ___ U.S. ___, 88 L.Ed.2d 371 (1985),
does not modify long-standing substantive constitutional law by
eliminating the concepts of continuing affirmative duties and
continuing constitutional violations in school desegregation
cases against states, where vestiges of state-imposed segregation 

4
remain.

In summary, Metro is not attempting to design a new
exception to the Eleventh Amendment, "on a scale comparable to Ex

5
Parte Young" as the state defendants suggest. Desegregation 
cases fit well within the already existing exception, as the 
Supreme Court and this court recognized in Milliken v. Bradley, 
433 U.S. 267 (1977); Bradley v. Milliken. 540 F.2d 229, 242-45 
(6th Cir. 1976). Because of the nature of the remedies deemed 
necessary to correct continuing constitutional violations, 
desegregation cases are substantively different from statutory 
welfare benefits cases and perhaps other civil rights cases. 
Relief awarded in desegregation cases never purports to compen­
sate victims for past wrongs as with ordinary damage actions. 
Indeed, no damages are ever paid to young black children who have 
been denied equal educational opportunities in the context of a 
desegregation case, as presumably was the ultimate goal in Green,

4
See Green v. Mansour, ___ U.S. ___, 88 L.Ed.2d at 377,

citing Milliken v. Bradley. 433 U.S. 267 (1977).

See pp. 15-17, 32-35, Metro's Principal Brief.
5

3



supra, for those individuals who had been wrongfully denied
welfare payments. Rather, desegregation remedies are necessarily 
directed toward the school systems--the systems are required to 
be restructured to eliminate the vestiges of state-imposed segre­
gation which linger long after the abolition of segregation laws. 
As a result of the restructuring of these systems, whether by 
busing, educational components, faculty training, or other 
vehicles, all children then attending are expected to receive 
equal and quality education.

Thus , while relief in desegregation cases may be compen- 
6

satory in one sense, it is inherently prospective in nature. By 
eliminating automatically pre-1981 costs from consideration in a 
system which has been forced to operate on a survival budget, 
trimming programs and funding desegregation at a minimal level 
since 1971, the District Court has not eliminated retroactive 
payments of state funds as damages. Instead, the District Court 
has automatically eliminated a valuable yardstick by which the 
differences in the system absent state-mandated segregation can 
be measured. As a result, those programs and needs which have 
been eliminated over the years to pay for first-priority 
desegregation programs at a minimal level may never be 
restored, and future generations of children may be faced with

6
As Justice Marshall notes, the Supreme Court in 

Milliken v. Bradley, 433 U.S. 267, 290 (1977) characterized the 
relief ordered as both "prospective" and "compensatory". See 
Green v. Mansour. 88 L.Ed.2d 371, 385 (1985).

4



continued vestiges of the state's segregative actions and a 
further dimunition in the quality of their education. See 
Bradley v. Milliken, 540 F.2d 229, 245-46 (6th Cir. 1976), 
citing, Hart v. Community School of Brooklyn, 383 F.Supp. 699, 
741 (E.D. N.Y. 1974), aff'd. 512 F.2d 37 (2nd Cir. 1975);
Evans v. Buchanan, 379 F.Supp. 1218, 1222 (D. Del. 1974), aff1d , 
423 U.S. 963 (1975) .

Respectfully submitted,
WILLIS & KNIGHT

Nashville, TN 37201
Attorneys for Defendants/ 
Appellees/Cross-appellants

CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the 

foregoing document has been forwarded to Mr. Avon Williams, 
Attorney for Plaintiffs, 203 Second Avenue North, Nashville, TN 
37201; Mr. Stephen Nunn, Assistant Attorney General, 450 James 
Robertson Parkway, Nashville, TN 37219; and Mr. Theodore Shaw, 
NAACP Legal Defense Fund, 99 Hudson Street, 16th Floor, New York, 
NY 10013 on this JpJL day of April, 1986.

WILLIS & KNIGHT

By:

5



ADDENDUM

Both the State of Tennessee, et al. and Metropolitan Board 
of Education, et al., failed to include pertinent statutory 
provisions as addenda to their principal briefs. Pursuant to 
Rule 28(f), Federal Rules of Appellate Procedure, two often-cited 
statutes are supplied with this brief in the addendum hereto. 
Metro has not attempted to copy all of Title 49, Tennessee Code 
Annotated (T.C.A. §§49-1-102, et seq.) which demonstrates the 
significant extent of state control over local school districts 
in Tennessee. (Memorandum, R. 79, p. 13; 615 F.Supp. 1139, 1168 
(M.D. Tenn. 1985.)



49-6-2101 EDUCATION 228

P art 21— T ransportation

49-6-2101. Power of boards to provide transportation. — (a) Boards of 
education may provide school transportation facilities for children who live 
over one and one half (1V2) 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.

(b) Boards of education may, in their discretion, provide school transporta­
tion facilities for children who live less than one and one half (1V2) 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 (IV2) miles by the nearest accessible route from the school in 
which they are enrolled.

(c) Nothing in this part shall be construed to prevent a board of education 
from transporting 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.

(d) Boards shall have power to purchase school transportation equipment, 
employ school transportation personnel, and contract for transportation ser­
vices with persons owning equipment, and pay for same out of funds duly 
authorized in the budget approved by the county legislative body.

(e) Boards, in employing school transportation personnel and in contracting 
for transportation services with persons owning equipment, are hereby autho­
rized to enter into contracts for such services for periods of time as long as, but 
not exceeding, four (4) years from the date of making such contracts, it being 
the purpose of this section to permit a reasonable degree of employment secu­
rity for such school transportation personnel.

(0(1) 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 
imbalance 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.

(2) If the local board of education adopts any transportation plan or directive 
for the purpose of achieving racial balance, the governor may order that any 
or all parts of the state transportation funds shall be withheld from the local 
school board.

(3) If the governor so orders, the commissioner of education and the state 
board of education shall withhold, or cause to be withheld, state transportation 
funds to local boards of education to the extent ordered by the governor. [Acts 
1947, ch. 92, § 1; 1949, ch. 233, § 1; C. Supp. 1950, § 2495.1 (Williams,
§ 2495.2); Acts 1957, ch. 10, § 1; 1957. ch. 400, § 1; 1970 (Adj. S.), ch. 491, § 1; 
1972 (Adj. S.), ch. 567, § 1; T.C.A. (orig. ed.), § 49-2201.]

Cross-References. Bonds for purchase of Transportation to and from area vocational 
buses, § 49-3-1006. schools, § 49-11-308.

ISEE TABLE IN FRONT OF THIS VOLUME FOR CHANGES IN SECTION NUMBERING]



49-6-3107 EDUCATION 256

the second grade if they meet the age requirements for entry into the first 
grade, as provided in § 49-6-3001. [Acts 1957, ch. 13, § 6; 1974 (Adj. S.), ch. 
655, § 1; T.C.A., § 49-1746.]

49-6-3107. Notice of student assignment. — In assigning students, the 
board of education may give individual written notice of assignment on each 
pupil’s report card or by written notice by any other feasible means to the 
parent, or may give notice by publication. [Acts 1957, ch. 13, § 7; T.C.A., 
§ 49-1747.]

49-6-3108. Attendance in adjoining states. — Boards of education 
located in counties which are adjacent to other states may contract with the 
appropriate local or state officials in the adjoining state for the education of 
children in grades one (1) through twelve (12) provided that the board of 
education of the Tennessee school district and the commissioner of education 
determine that such an arrangement is the most economical way of providing 
a reasonable education for children under the jurisdiction of such boards. Such 
contract shall be executed by the appropriate board of education and approved 
by the commissioner of education and the attorney general of the state prior 
to the enrollment of such children in the schools of the other state. The cost of 
educating such children in accordance with the terms of such contracts shall 
constitute a part of the costs of the minimum foundation school program of the 
respective school district. [Acts 1957, ch. 90, § 1; 1974 (Adj. S.), ch. 654, § 112; 
T.C.A., § 49-1764.]

Section to Section References. This sec- Tennessee Survey (James C. Kirby, Jr.), 16 
tion is referred to in §§ 49-2-1201, 49-3-302. Vand. L. Rev. 649.

Law Reviews. Constitutional Law — 1962

49-6-3109. Unlawful discrimination. — (a) No person shall be refused 
admission into or be excluded from any public school in the state of Tennessee 
on account of race, creed, color, sex or national origin.

(b)(1) No student shall be assigned or compelled to attend any school on 
account of race, creed, color or national origin, or for the purpose of achieving 
equality in attendance or increased attendance or reduced attendance, at any 
school, of persons of one or more particular races, creeds, colors, or national 
origins.

(2) No school district, school zone or attendance unit, by whatever name 
known, shall be established, reorganized or maintained for any such purpose.

(3) Nothing contained in this subsection shall prevent the assignment of a 
pupil in the manner requested or authorized by his parents or guardian.

(4) Nothing in this section shall be deemed to affect, in any way, the right 
of a religious or denominational educational institution to select its pupils 
exclusively or primarily from members of such religion or denomination or 
from giving preference to such selection to such members or to make such 
selection to its pupils as is calculated to promote the religious principle for

[SEE TABLE IN FRONT OF THIS VOLUME FOR CHANGES IN SECTION NUMBERING)



257 e l e m e n t a r y  a n d  SECONDARY EDUCATION 49-6-3201

r i T s  ^  iSTê f  HS edo [ActS 1970 ,Adj- SJ’ ch- 474’ 1. 2; 1976 (Adj. S.>, ch446, § 1; T.C.A., §§ 49-1770, 49-1771.] J

Cited: Kelley v. Metropolitan County Bd. of 
Educ., 687 F.2d 814 (6th Cir. .

49-6-3110. Limits on class size. -  (a) It is the purpose and intent of the 
the general assembly by the enactment of this section to provide for a stan- 
dardized and efficient administration of the public school systems throughout 
the state of Tennessee.

(b) The commissioner of education shall publish maximum school class size 
limits before August 1 of the school year.

(c) The superintendent or director of each school district shall submit to the 
state commissioner of education requests for waivers on class size limits before 
.November 15 of the school year.

Id) Following November i5, if monthly attendance reports reveal that addi­
tional classrooms do not comply with state class size maximum limits, the 
superintendents or directors shall request from the state commissioner of edu-
month 3 W31Ver °n Class size Iimits ^  the fifteenth day of the next calendar

(e) Such waivers, if granted by the state commissioner of education, shall be 
made available by the commissioner to local news media and to state and local
f m  19?3’ Ch- 266’ §§ 4-5; 1974 ,AdJ' S-), ch. 654,S 113; T.C.A., §§ 49-1773 — 49-1777.]

Section to Section References. This sec­
tion is referred to in § 49- 3- 303.

CredU f° r gifted students- -  Academically talented/gifted students enrolled in grades nine (9), ten (10), eleven (11), or
twelve (12) in public or private high schools in Tennessee may, with the recom­
mendation and approval of the high school principal and appropriate higher 
education institution personnel, enroll in and receive regular college degree 
credit from a Tennessee postsecondary institution, if such a student has a grade 
point average equivalent to 3.2 on a 4.0 maximum basis and if such placement 

K j r  student s planned Individual Educational Placement (IEP) as 
es ablished by the miilti-disciplinary- team process. [Acts 1983, ch. 395, § 1 ;
l .v-y. / i . j  § 4 y * i / / o . j

P art 32— C hallenges to Stu d en t  A ssignm ents

49-6-3201 Application for hearing. -  (a) Both parents, if living, or the 
pa enT guardian or legal custodian of any child so assigned who is dissatisfied 

th the assignment of such child may, within ten (10) days of the order 
makmg the assignment, make written application to the board for a hearing
tr thf  b°ard as t0Lthe, reasonableness of the assignment and asking for a transfer to another school. 5

ISEE TABLE IN FRONT OF THIS VOLUME FOR CHANGES IN SECTION NUMBERING]