Mapp Et Al v Board of Education of the City of Chattanooga TN Petition for Rehearing En Banc

    In t he

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 71-2006, -2007, 72-1443, 
-1444, -1943

JAMES JONATHAN MAPP, et al..

Plaintiffs-Appellants-Cross Appellees, 
etc.

vs.

THE BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA, et al.,

Defendants-Appellees-Cross Appellants, 
etc.

and

THE CITY OF CHATTANOOGA, et al.,

Defendants-Appellants-Appellees, etc.

PETITION FOR REHEARING EN BANC. 
MOTION TO CONSOLIDATE APPJEALS, AND 
_______ MOTION TO VACATE STAY

AVON N. WILLIAMS, JR.
1414 Parkway Towers

JACK GREENBERG 404 James Robertson Parkway
JAMES M. NABRIT, III Nashville, Tennessee 37219
NORMAN J. CHACHKIN 
SYLVIA DREW 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs MAPP et al



f IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 71-2006. -2007, 72-1443, -1444

JAMES JONATHAN MAPP, et al..

Plaintiffs-Appellants-Cross Appellees,

vs.

THE BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA, et al.,

Defendants-Appellees-Cross Appellants,
and

THE CITY OF CHATTANOOGA, et al.,

Defendants-Appellants-Appellees

PETITION FOR REHEARING EN BANC

Plaintiffs below, JAMES JONATHAN MAPP et al., by their 

undersigned counsel, respectfully pray that pursuant to F.R.A.P. 

40 and 35(a), this Court grant rehearing en banc of the October 

11, 1972 decision by a panel in these appeals, in an opinion 

rendered by Judges Weick and O'Sullivan, from which Judge Edwards 
has dissented. A determination by the full Court is urgently



•  •

required because (a) the opinion for the majority fails to decide 

squarely any of the issues presented by the parties with the 

exception of that relating to the burden of proof —  and with 

respect to that issue, the majority's holding is flatly contradictory 

to controlling precedent, Green v. County School Bd. of New Kent 

County, 391 U.S. 430 (1968); Swann v. Charlotte-Mecklenburg Bd. of 

Educw 402 U.S. 1 (1971); Wright v. Council of the City of Emporia. 

407 U.S. 4,52 (1972); (b) the majority opinion contradicts as well a

generation of constitutional adjudication by the Supreme Court
j

commencing with Brown v. Board of Educ. (I), 347 U.S. 483 (1954);

(c) the rejection by the majority of plaintiffs' request for in­

structions to the District Court requiring further desegregation 

of the Chattanooga public school system, and the underlying thesis 

throughout the majority opinion that desegregation need not be 

"maximized," conflict with "opinions of this court in which the 
great majority of the members of this court have joined" (Edwards,

J., dissenting herein); (d) most of this Court's school desegre­

gation cases come from Tennessee, and the inconsistency of approach 

result among- panels of this Court leads to the application 

of different constitutional rules to the various school systems 

of the State, and creates confusion among the lower courts concerning 

the meaning of the Fourteenth Amendment in this Circuit; and 

(o) the majority opinion remands this matter to the district court

-2-



for further consideration with virtually no guidance whatsoever, 

in an opinion which seems to encourage abandonment of even the 

minimal desegregation thus far achieved in Chattanooga, and which, 

absent intervention by the full Court, is likely to result in 

grave injustice to the plaintiffs and further denial of their 
constitutional rights.

I. The Facts

This action to desegregate the public schools of Chattanooga, 

Tennessee, was commenced on April 6, 1960, some five years after** I
the Supreme Court's decision in Brown v. Board of Educ. (II), 349 

U.S. 294 (1955). No desegregation had yet occurred in Chattanooga, 

and progress toward disestablishment of the dual biracial system 

of public education in Chattanooga has remained inordinately slow.

The Board resisted the District Court's initial order to submit 

a desegregation plan [see 295 F.2d 617 (6th Cir. 1961)] and proposed 

to defer complete desegregation for eight years [see 203 F. Supp. 843 
(E.D. Tenn. 1962), aff'd 319 F.2d 571 (6th Cir. 1963)]. When its 

dual attendance zones were finally eliminated, the school system 

created new zones coextensive with areas of racial residential 

segregation, maintained optional zones in areas of racial transition, 

and applied various transfer rules, all with the result that 

desegregation was minimized [see generally, Brief for Plaintiffs- 
Appcllants in No. 71-2006, pp. 6-11].

-3-



Although it had never taken affirmative, as opposed to 

"neutral," action to bring about the integration of the Chattanooga 

schools [see Brief for Defendant-Appellee and Cross-Appellant in 

Nos. 71-2007, -2007, pp. 8-9], the school board resisted the 

District Court's determination that under Swann and other decisions 

of the United States Supreme Court, it was required now to take such 

affirmative action, on the specious ground that its conduct —  

however ineffective to bring about desegregation in Chattanooga —  

had not specifically been held insufficient in this case prior to 

1971, that it was not therefore "in default" as that phrase is 

used in Swann, and that it was not therefore responsible for the 
continued segregation of its schools.

Following lengthy hearings, the District Court ruled from 

the bench on May 19, 1971 that, measured by the standards enunciated 

by the Supreme Court of the United States in Swann and companion 

cases, the school board was not operating a unitary school system. 

Accordingly, the District Court directed the submission of further 

desegregation plans. The school board then submitted plans (plain­

tiffs had previously introduced their proposal at the earlier 

hearings), which were approved for the elementary and junior high 

school grades in a memorandum opinion entered by the district court 

on July 26, 1971. Since part of the elementary and junior high

school desegregation plan required the acquisition of additional

-4-



transportation facilities, the District Court's Order of August 5, 

1971 permitted the school board to defer complete implementation 

of the elementary and junior high school plan until the necessary 

buses could be purchased, but as soon as practicable.* Approval 
of a plan for the high schools was reserved.

In December, 1971, certain individual citizens of Chattanooga 

commenced a suit in the Circuit Court of Hamilton County, Tennessee 

against the City of Chattanooga, its mayor and city commissioners, 

to enjoin the direct or indirect expenditure of city funds to 

purchase buses in order to comply with the aforementioned August 

5, 1971 Order of the District Court. Such an injunction was issued 

by the Circuit Judge on January 18, 1972. Upon appropriate motions 

and proceedings, the plaintiffs and defendants in the state court 

action were made additional parties defendant in the federal liti­

gation and all parties were enjoined from enforcing or attempting 

to enforce the state court judgment. At the same time, the District 

Court amended its August 5, 1971 Order to require completion of 

the process of implementing plans for elementary and junior high 

school desegregation which it had previously approved by not later

★

During the 1971-72 school year, the elementary and junior high 
schools were partially desegregated; twelve elementary and junior 
high schools were more than 90% black, nine were more than 90% 
white, while only eight schools enrolled between 30% and 70% black 
students. Approximately 55% of the system-wide enrollment is black.

-5-



than the commencement of the 1972-73 school year. Finally, the 

District Court directed further submissions from the school board 

with respect to the question of high school desegregation by 

June 15, 1972. (No order approving a plan for high school deseg­

regation has yet been issued by the District Court).

On July 24, 1972, the school board filed with the District 

Court a motion to stay further implementation of pupil desegre­

gation in the elementary and junior high schools, which would 

require transportation, purportedly pursuant to Section 803 of the 

Education Amendments of 1972, P.L. 92-318. The motion revealed 

that on June 13, 1972, the board had cancelled a purchase order 

for the necessary buses, without court approval, because it inter­

preted §803 as guaranteeing it a stay. On August 11 the District 

Court granted the requested stay, interpreting §803 as applying to 

school desegregation and racial balance orders. The appeal in No. 
72-1943 followed.

In summary, while the District Court in May, 1971 found that 

the Chattanooga school system was not yet unitary, it deferred 

complete implementation of a plan of desegregation for elementary 

and junior high schools until the 1972-73 school year; while an 

appeal and cross-appeal from its judgment were pending, the school 

board unilaterally took action which made it impossible to carry

-6-



out the remainder of the plan by the 1972-73 school year, and the 

District Court subsequently stayed that portion of its order 

pursuant to an interpretation of a federal statute which has been 

rejected by every other federal court in the nation, including the 

entire United States Supreme Court on Monday, October 16, 1972,

No. A-377, Board of Educ. of Memphis v. Northcross.

On October 11, 1972, the decision on these appeals, of which 

rehearing en̂  banc is herein sought, was issued by a majority of a 

panel of this Court, nearly two months after a separate appeal 

and motion seeking vacation of the district court's stay had been 

filed. However, the majority opinion not only fails to address 

itself to the issues on these appeals; it declines to disturb the 

District Court judgments of which the parties sought review, 

remands the matter for further ccnsideration by the District Court, 
but obliquely endorses the stay by holding precedential interpre­

tation of §803 irrelevant to this case. The result is that a return 

to segregation has been sanctioned by the District Court and this 
Court of Appeals.

II. The Issues on Appeal

The parties to the various appeals presented the following 

general issues: plaint if f s contended that the district court had

erred in deferring high school desegregation rather than ordering

implementation of the plan presented by their expert witness, that *
* See the accompanying Motion to Consolidate Appeals and Motion to 
Vacate Stay. -7-



the lower court erred in accepting the school board's elementary 

and junior high school proposals because they excluded certain 

racially identifiable schools from the desegregation process on 

legally untenable grounds, and that the board's proposals improperly 

placed the burden of such desegregation as would occur dispropor­

tionately upon black students. The Chattanooga Board of Education 

contended that it was not "in default" as that language appears in 

Swann and therefore it had no obligation to affirmatively consider 

race in designing a further desegregation plan, that it ought not 

have the burden of proving that segregated schools in Chattanooga 

do not result from past discrimination, that a race—conscious plan 

of integration of the sort required by the district court would not 

improve educational opportunity and would violate the constitutional 
rights of students assigned involuntarily, and that the school 

board had no obligation to maximize integration. The City of 

Chattanooga attacked the district court's power to compel local 

officials to expend funds to purchase transportation equipment in 

order to effectuate student integration, both generally under the 

Eleventh Amendment and also in the specific circumstances of this 

case wherein the City claimed not to have been a party to the action 
prior to its January, 1972 joinder.

Ill. The Decision of the Panel

The majority opinion for the panel, by Judge Weick, summarizes

-8-



the contentions of the parties (s.o. at 1-2) and tie n states:

It is obvious to us that none of the parties is 
satisfied with the desegregation order of the 
District Court and that the main appeal is only 
a piecemeal appeal. For the reasons hereinafter 
set forth, and in compliance with the request of 
the plaintiffs we remand for further consideration 
and direct the District Court to present a plan 
which will finally determine this apparently- 
indeterminable litigation, which is now more than 
twelve years old. We do not grant to plaintiffs 
declaratory relief which they request, as this is 
beyond our jurisdiction as an Appellate Court. 
Plaintiffs' request for declaratory relief should 
be presented to the District Court.*

*This paragraph is exemplary of the plain legal errors committed 
by the majority which should be corrected by this Court en banc. 
Insofar as the majority viewed the case as a "piecemeal appeal," 
because the District Court had not approved a desegregation plan 
for all grades on a "permanent" basis, but had deferred part of 
the job, it did not follow its own logic and dismiss the appeal; 
insofar as the majority may have taken that "piecemeal" status 
to relieve the Court of the obligation to decide the issues 
presented to it, such a ruling conflicts with Kelley v. Metropolitan 
County Bd. of Educ., 436 F.2d 856 (6th Cir. 1970) and is clearly 
erroneous. See generally, United States v. Texas Educ. Agency.
431 F.2d 1313 (5th Cir. 1970); Alexander v. Holmes County Bd. of 
Educ., 396 U.S. 19 (1969); Carter v. West Feliciana Parish School 
Bd., 396 U.S. 226, 290 (1969, 1970). Plaintiffs sought not a 
general remand to the District Court without guidance but rather 
specific instructions concerning the legal errors which the District 
Court had made and should avoid in the future; indeed, plaintiffs 
sought a declaratory judgment with respect to certain of these 
matters in order that the law should be quite clear to the lower 
court* (The contention that this Court cannot issue such a judgment 
directly conflicts with the jurisdictional provisions of the Judicial 
Code:

In case of actual controversy within its 
jurisdiction, except with respect to Federal 
taxes, any court of the United States, upon 
the filing of an appropriate pleading, may 
declare the rights and other legal relations of 
any interested party seeking such declaration, 
whether or not further relief is or could be 
sought. . . .

28 U.S.C. §2201 (emphasis supplied).
-9-



Following a brief history of the case emphasizing the "good 

faith" of the school board, i.e., its willingness to obey, without 

the necessity of formal contempt proceedings, orders of the District 

Court which had failed to bring about meaningful desegregation in 

Chattanooga, the majority opinion proceeds to comment upon various 

issues, although it does not directly decide any. The matters 

upon which the majority does express itself are generally those 

contentions made by the defendants. Ordinarily such discursive 

comments might be classified as dicta which do not detract from a 

clear holding, but here, where there is no such ruling, and where 

the majority merely remands to the District Court for further 

consideration, its comments assume importance since they will no 

doubt be taken to heart by the district judge.

For example, the majority comments that both the plaintiffs' 

plan and that approved by the District Court, which had as their 

goal the establishment of schools with racial compositions between 

30% and 70% black [or white], are plans embodying "fixed racial 

quotas" of the sort eschewed in Swann. The majority does not, 

however, reverse the judgment of the District Court on this 

account despite the palpable legal error which it claims to have 

found. Again, the majority shuts its eyes to the explicit language 

of the Supreme Court in Swann, 402 U.S. at 26, and says that in 
its judgment, "the [District] Court erred in placing on the

-10-



defendants the burden of proof in resisting plaintiffs' motion 

for further relief" (s.o. at 9) by demonstrating that schools in 

Chattanooga attended overwhelmingly by students of one race are 

unrelated to past or present discrimination. Yet the majority 

does not reverse the lower court's judgment for this "error."

The discussions of the majority abound with emotional 

references to the purported benefits of "neighborhood schools," 

again despite the Supreme Court's emphasis in Swann that 

[d] esegregation plans cannot be limited to the walk—in school,"

402 U.S. at 30. Thus in the section of its opinion entitled, 

Maximizing Integration," the majority suggests that constitutional 

requirement declared by the Supreme Court must be balanced against 

the very "neighborhood school" traditions the Supreme Court

specifically held were secondary to the effectuation of constitiiional
rights.

Finally, although it is absolutely clear in Chattanooga, as 

it was in Memphis and Nashville, for example, that meaningful 

desegregation of urban public school systems cannot be achieved 

without pupil transportation, the majority rhetorically asks 

the District Court not to employ that desegregation tool on remand: 

"If now every order involving schools requires busing, the question 
may well be asked, 'What next?'" (s.o. at 13).

-11-



Our difficulty in cogently summarizing the majority's 

opinion stems from its failure to announce clear holdings on 

issues, and its ambiguous remand for further consideration. When 

the opinion is read as a whole, however, we believe its hostility 

to desegregation appears almost tangibly, and its conflict with 

the Fourteenth Amendment law as pronounced by the Supreme Court 

of the United States is virtually self-evident.

IV- Reasons Why Rehearing En Banc Should Be Granted 

The reasons why this matter should be reheard en banc may 

be simply put: the majority of a panel has decided an important

case involving the protection of fundamental constitutional rights 

in a manner which conflicts not only with the recent trend of 

decision in this Court, but also with the principles expounded 

in decisions of the United States Supreme Court which are binding 

upon the lower federal judiciary. The appeal is one of a class 

of cases which appear frequently upon the dockets of this Court 

and the district courts within its jurisdiction, and resolution 

of the conflicts among panels of this Circuit in approach to 

and decision of such cases will eliminate confusion of district 

judges as well as make unnecessary further appeals to this Court 

in other cases in order to obtain such resolution.

The description of the case in the first parts of this 

Petition suffices, we believe, to identify some of the glaring

-12-



•  •

inconsistencies of approach between the majority of the panel 

and the Supreme Court of the United States. In similar fashion, 

the dissenting opinion of Judge Edwards in this case lists many 

of this Court's own recent school desegregation decisions with 

which the opinion of the majority in this case is necessarily at 

odds, and we shall not dwell upon these conflicts. The chief 

difference between the panel majority and both the Supreme Court 

and other panels of this Court seems to us to be the majority* s 

failure to apprehend the Supreme Court's basic tenet that deseg­

regation plans are judged by their effectiveness. e ,g., Green v. 

County School Bd. of New Kent County, 391 U.S. 430 (1968); see,

> Henry v. Clarksdale Municipal Separate School Dist.. 409 F.2d 

682 (5th Cir.), cert, denied, 396 U.S. 940 (1969); Clark v. Board 

of I’.duc. of Little Rock. 426 F.2d 1035 (8th Cir. 1970), cert. 

denied, 402 U.S. 952 (1971). This principle recently received

cogent and forceful application by this Court in Kelley v. Metro­

politan County Bd. of Educ.. 463 F.2d 732 (6th Cir. 1972) and 

Northcross v. Board of Educ. of Memphis. No. 72-1630 (6th Cir.,

August 29, 1972). In both of those decisions, other panels of 

this Court recognized the test of effectiveness, and also that 

the burden of demonstrating effectiveness rests with the school board.

The kind of confusion into which district judges are thrown 

by the issuance of contradictory opinions in school desegregation

-13-



cases from this Circuit is illustrated by the defendants' claim 

(Brief for Defendant-Appellee and Cross-Appellant in Nos. 71-2006 

and -2007, p. 15) that after an initial ruling based upon Kelley, 

436 F.2d 856 (6th Cir. 1970) and Robinson v. Shelby County Bd. of 

Educ., 442 F .2d 255 (6th Cir. 1971), "[t]he District Court 

appeared to shift emphasis on the basis of Goss v. Board of

Education of City of Knoxville. 444 F.2d 632 (6th Cir., June 22, 
1971) . . . . ' •

To plaintiffs' knowledge, this Court has never sat en banc 

to hear a school desegregation case. Not only would such a 

hearing establish consistent Circuit-wide policy to the benefit 

of district judges, and indirectly of this Court's workload, 

but it will avoid unnecessary Supreme Court review of matters 

which do not truly represent policy of the Circuit. Additionally, 

such a hearing in this case will serve to further the application 

of a consistent body of law to Tennessee school desegregation cases

Finally, rehearing en banc is compelled, we think, by this 

Court’s heavy responsibility under our Constitution and the oath 

of office to administer justice. With respect to the issue of 

school desegregation, decisions of the Supreme Court of the United 

States have made it clear that Courts of Appeals, as much as 

district courts, have a responsibility to further the rapid and 

effective dismantling of dual school systems. E .g ., Alexander v.

-14-



Holmes County Bd. of Educ., supra. Here, if the majority's 

decision is not reviewed, the already long-delayed desegregation 

of the Chattanooga public schools will be yet again* postponed, 

perhaps indefinitely. it is incumbent upon this Court to act to 

prevent any further denial of constitutional rights to the black 
children of Chattanooga.

For the foregoing reasons, it is respectfully submitted that 

this Court should grant rehearing en banc of the October 11, 1972 

panel decision in this cause, and establish a schedule for such 

additional briefs as the Court desires, in order to effectuate 

complete relief effective with the 1973-74 school year.

CONCLUSION

Respectfully submitted

AVON N. WILLIAMS, JR.
404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs 
MAPP et al.

-15-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 71-2006, -2007, 72-1443, 
-1444, -1943

JAMES JONATHAN MAPP, et al.,
Plaintiffs-Appellants-Cross Appellees, 
etc.

vs.
THE BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA, et al.,

Defendants-Appellees-Cross Appellants, 
etc.

and
THE CITY OF CHATTANOOGA, et al..

Defendants-Appellants-Appellees, etc.

MOTION TO CONSOLIDATE APPEALS

Plaintiffs below, JAMES JONATHAN MAPP, et al., by their 
undersigned counsel, respectfully pray that the above-captioned 
appeals be consolidated for purposes of rehearing or hearing 
en. banc before this Court, and in support of their motion would
show the Court as follows:



1. Nos. 71—2006 and —2007 are an appeal and cross—appeal 
by the Plaintiffs and the Board of Education of the City of 
Chattanooga, respectively, from the Order of the United States 
District Court for the Eastern District of Tennessee, Southern 
Division, entered August 5, 1971, directing implementation of 
certain desegregation measures affecting elementary and junior 
high schools in Chattanooga insofar as possible for the 1971-
72 school year and in any event as soon as practically feasible.

2. Nos. 72-1443 and -1444 are appeals by the City of 
Chattanooga and the School Board of the City of Chattanooga, 
respectively, from the Order of the same United States District 
Court entered February 4, 1972, which amended the Order of 
August 5, 1971 so as to require complete implementation of the 
aforementioned elementary and junior high school desegregation 
by the commencement of the 1972-73 school year and which also 
enjoined the School Board, the city and city Council and certain 
other added parties from enforcing or seeking to enforce a 
state court injunction against the expenditure of funds 
necessary to implement the district court orders.

3. No. 72-1493 is an appeal by Plaintiffs from an Order 
of August 11, 1972 entered by the district court which granted 
a stay of the August 5, 1971 and February 4, 1972 desegregation 
Orders insofar as any pupil reassigned pursuant to such Orders
would require transportation, which stay the district court 
held was required by the provisions of Section 803, Education
Amendments of 1972, P.L. 92-318.

-2-



4. Nos. 71-2006, -2007, 72-1443, and -1444 were argued 
together on their merits before a panel of this Court consis­
ting of Circuit Judges Weick and Edwards and Senior Circuit 
Judge O'Sullivan on June 6, 1972. These appeals were decided 
together in an opinion written by Judge Weick and joined by 
Judge O'Sullivan [Judge Edwards dissenting] on October 11, 1972. 
The entire matter was "[rjemanded for further consideration" 
without formal affirmance or reversal, although the majority 
opinion does decide at least one issue (the "burden of proof" 
question) raised in No. 71-2007.

5. No. 72-1943 was initiated in this Court almost two 
months prior to the issuance of the aforementioned opinion, by 
the filing of a "Motion of Plaintiffs-Appellants for Suspension 
of Rules, Summary Reversal and Immediate Relief, including 
Vacation of Stay Order and Hearing In Banc" on or about August 
16, 1972. Although the majority opinion in the related cases 
does not purport to determine the merits of this appeal, it does 
hold that decisions of individual Supreme Court Justices on 
stay motions presented pursuant to § 803 of the Education 
Amendments of 1972 are "not relevant" in light of the Court's 
remand, and based upon that statement, the City of Chattanooga 
as appellee in No. 72-1943 has recently filed a "Suggestion of 
Mootness and Motion to Dismiss Appeal."

6. Simultaneously with the filing of this Motion to Con­
solidate Appeals, plaintiffs are filing a Petition for Rehearing 
En Banc of the panel's October 11, 1972 decision in all of the

-3-



above-captioned matters except No. 72-1943, in which appeal a 
suggestion of hearing en banc has been filed but not yet 
acted upon. It would therefore be appropriate for the entire 
Court to consider all of these appeals together.

7. All of these appeals are concerned with the selection 
and effectuation of an appropriate plan for the full desegre­
gation of the public schools of Chattanooga, Tennessee and 
their consideration would be simplified by their consolidation 
in this Court.

WHEREFORE, for the foregoing reasons. Plaintiffs respect­
fully pray that the clerk be directed to consolidate all of the 
above-captioned appeals for purposes of further consideration 
and disposition by this Court.

Respectfully submitted

404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN
SYLVIA DREW

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs 
MAPP, et al.

-4-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 71-2006, -2007, 72-1443, 
-1444, -1943

JAMES JONATHAN MAPP, et al.,
Plaintiffs-AppeHants-Cross Appellees, etc.

vs.
THE BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA, et al.,

De fend ants-Appe1lees-Cros s Appe1lants, etc.
and

THE CITY OF CHATTANOOGA, et al.,
Defendants-Appe1lants-Appe1lees, etc.

MOTION TO VACATE STAY

Plaintiffs below, JAMES JONATHAN MAPP, et al., by their 
undersigned counsel, respectfully pray that this Court en banc 
issue an order vacating the stay issued by the District Court 
on August 11, 1972 so that the Chattanooga School Board shall 
take the necessary steps to carry out the orders of the District 
Court of August 5, 1971 and February 4, 1972 at the earliest 
practicable opportunity. in support of their motion, plaintiffs



would show this Court as follows:

1. On August 5, 1971, the District Court directed the 
Board of Education of the city of Chattanooga to take certain 
steps to implement a desegregation plan for elementary and 
junior high schools as soon as the necessary transportation 
f ^ ^ H t i e s  could be acquired. By order of February 4, 1972, 
the District Court required that such steps be completed and 
desegregation fully implemented by the commencement of the 
1972-73 school year.

2. However, upon motion of defendants, the District 
Court on August 11, 1972 stayed those parts of its desegrega­
tion order which required the acquisition of transportation 
capability because the Court held that Section 803 of the 
Education Amendments of 1972, P.L. 92-318, applied to its 
earlier orders even though they were designed to achieve 
desegregation and not racial balance.

3. On August 16, 1972, plaintiffs filed a motion for 
suspension of the rules and immediate relief and including 
vacation of the said District Court stay, along with a 
suggestion of hearing en banc in No. 72-1943. That request 
has never been acted upon by this Court.

4. However, on October 11, 1972, the panel of this 
Court to which the other above-captioned appeals were assigned 
issued its judgment and a majority opinion by Judge Weick, 
concurred in by Judge O'Sullivan, remanding this entire matter 
to the District Court "for further consideration" without

-2-



either approving or disapproving specifically the previously 
ordered steps toward desegregation. The majority opinion 
states that:

The decisions of individual Justices of the 
Supreme Court on applications for a stay under 
the provisions of § 803 of the Education Amend­
ments of 1972, Pub.L. 92-318, § 803 (June 23,
1972) are not relevant here in view of our 
remand of these appeals to the District Court 
for further consideration.

5. The decision of the District Court is in conflict 
with the interpretation given Section 803 by Mr. Justice 
Powell in Drummond v. Acree, No. A-250 (September 1, 1972), 
previously furnished to this Court, and the determinations
of other Justices on stay applications pursuant to that section. 
See dissenting opinion of Edwards, J. in this cause, pp. 14- 
17. in addition, the entire Supreme Court of the United 
States denied an application for a stay pursuant to Section 
803 (which had also been denied by this Court) in Board of 
Education of Memphis v. Northcross. No. A-377 (October 16, 1972). 
See Exhibit A hereto.

6. Prior to obtaining a stay from the District Court, 
the Chattanooga School Board unilaterally cancelled an order 
for the purchase of busses necessary to carry out the District 
Court s desegregation decree, and unless the stay is vacated 
there will be an additional delay in effectuating desegregation 
should the decision of the panel be reversed by the entire 
Court.

-3-



7. Simultaneously with the filing of this motion, 
Plaintiffs are submitting a Petition for Rehearing En Banc 
of the October 11 decision and a Motion to Consolidate these 
appeals.

WHEREFORE, for the foregoing reasons, Plaintiffs respect­
fully pray that an order issue from this Court vacating the 
stay order of August 11, 1972 issued by the District Court 
and reinstating the District Court Orders of August 5, 1971 
and February 4, 1972.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs 
MAPP, et al.

-4-



*  •
SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK 

WASHINGTON, D. C. 20543

October 16, 1972

Jock Patras, Esq.
900 Mwvhle lei* Bid*.
Nasphis, Tom. 38103

18: M .  of Itoittoa of tho Moaphlt City
Mools, ot ol. ▼. lortheroM, ot el.,
g W S g  E-Sk - i  H.mt—

Dear Sir:

The Court: today entered the following 
order m  the above-entitled case:

Tho application for stay protested to 
Mr. Justice 8tavert, end by hie referred to 
the Court, Is denied.

l£aekcc: uXtck Greeebeco, Kef.
10 Coluebos Circle 
mrc 10019

Very truly yours,

MICHAEL R0DAK, JR., Clerk
Bv

He. 1. Cel 
Loots 1 
325

u * i 2 r *
Xltlc il^l,Glcn Taylor> (Mrs.) 

38103 ‘
’Assistant Clerk

Clerk 
COCA 6
08 Ct.B.
Clndnnetl, Ohio 45202



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 71-2006, -2007, 72-1443, -1444

JAMES JONATHAN MAPP, et al..
Plainti f fs-Appe11 ants- 
Cross Appellees,

vs.
THE BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA, et al.,

Defendants-Appellees- 
Cross Appellants,

and

THE CITY OF CHATTANOOGA, et al.,

Defendants-Appel1ants- 
Appellees.

RESPONSE TO MOTION TO DISMISS 
PLAINTIFFS' PLEADINGS AND ALTERNATIVE 

MOTION FOR EXTENSION OF TIME

Plaintiffs, by their undersigned counsel, respond to 

the "Motion to Dismiss Plaintiffs' Pleadings" filed herein 

on or about October 30, 1972 as follows:

1. The Petition for Rehearing _En Banc was timely filed.
Rule 40(b) F.R.A.P. provides:



The petition ... shall be served and filed as 
prescribed by Rule 31 (b) for the service and 
filing of briefs.

This provision modifies the language of Rule 40(a) set out at 

page 2 of the brief in support of motion. Rule 31 does not 

define the method of filing but Rule 25(a) provides that briefs 

shall be considered filed as of the date of mailing. Plain­

tiffs, therefore, submit that petitions for rehearing are 

likewise to be considered filed as of the date of mailing.

2. Similar objections to the timeliness of petitions for 

rehearing or rehearing en banc were overruled and the petitions 

considered on their merits by the Fifth Circuit in United 

States v. Georgia, 5th Cir. No. 29067 (July 15, 1970) and the 

Eighth Circuit in Jackson v. Marvell School District No. 22,

8th Cir. No. 19746 (October 28, 1969).

3. The cases cited at pages 2-4 of the brief in support 

of motion are inapposite since none deals with a petition for 

rehearing, as to which the provisions of the Federal Rules of 

Appellate Procedure are distinguishable, as noted above.

4. Should the Court be of the view that the petition 

was not timely filed, plaintiffs respectfully pray that the 

Court consider this their alternative motion pursuant to 

Rules 26 (b) and 2 for an enlargement of time within which to 

file petition for rehearing to and including October 26, 1972. 

Such a petition is manifestly required in the interests of 

justice particularly since plaintiffs did not receive a copy

-2-



of the October 11, 1972 decision and judgment of the panel
until October 16, 1972 because of delays in mailing. In 

addition, the petition itself was mailed October 24, 1972, in 

sufficient time according to the experience of counsel unless 

delayed by the United States postal service, to be received 

the following day in Cincinnati.

WHEREFORE, for the foregoing reasons, plaintiffs respect­

fully pray that the Motion to Dismiss Plaintiffs' Pleadings 

be denied or in the alternative that this Court enter an order 

extending the time within which plaintiffs might file a 

petition for rehearing to and including October 26, 1972 nunc 

pro tunc.

Respectfully submitted

404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs 
MAPP, et al.

-3-



CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of October, 1972,

I served a copy of plaintiffs' Response to Motion to Dismiss 

Plaintiffs' Pleadings and Alternative Motion for Extension of 

Time upon counsel for the defendants, Raymond B. Witt, Jr., 

Esq., 1100 American National Bank. Bldg., Chattanooga, Tennessee 

37402 and Eugene N. Collins, Esq., 400 Pioneer Bank Bldg., 
Chattanooga, Tennessee 37402, by depositing same in the 
United States Mail, postage prepaid.

— t  ie n  k k 'UU *— ^  V V —  ----------Norman J. Chachk^n 
Attorney for Pla/intiffs MAPP 
et al.

-4-

i