Geier v. Alexander Brief for Plaintiff/Intervenors-Appellants Raymond Richardson

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RITA SANDERS GEIER, et al. ,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaintiff/Intervenor-Appellant,

RAYMOND RICHARDSON, JR., et al.,
Plaintiff/Intervenors-Appellees,

H. COLEMAN McGINNIS, et al.,
Plaintiff/Intervenera-Appellees, 

vs.
LAMAR ALEXANDER, et al.,

Defendants-Appellees.

■ —  •
On Appeal from the United States District Court for the 

Middle District of Tennessee 
Nashville Division

BRIEF FOR PLAINTIFF/INTERVENORS-APPELLEES 
RAYMOND RICHARDSON, JR., et al.

AVON N. WILLIAMS, JR. 
RICHARD H. DINKINS 
203 Second Avenue North 
Nashville, Tennessee 37201 
[615] 244-3988

JULIUS LeVONNE CHAMBERS
JAMES M. NABRIT, III
JOEL BERGER
THEODORE M. SHAW
16th Floor
99 Hudson Street
New York, New York 10013
[212] 213-1900

Attorneys
Jr et al

Plaintiff/Intervenors-Appellees Raymond Richardson,
• r



TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........................................  1
STATEMENT OF THE CASE .........................................  2

I. Course of Prior Proceedings .......................  2
II. Statement of Facts .................................  9

A. - Tennessee's Record of Desegregation from
1977-84: the Data of the Desegregation
Progress Reports ..............................  9

1. Professional Schools .........................  10
2. Other Schools .......... ’......................  19
B. 1984 Proceedings Before the District Court .. 21

ARGUMENT .......................................................  2 9
I. THE DISTRICT COURT GAVE FULL AND FAIR CONSIDERA­

TION TO THE JUSTICE DEPARTMENT'S OBJECTIONS TO 
THE STIPULATION OF SETTLEMENT .....................  29

II. THE PRE-PROFESSIONAL TRAINING PROGRAM OF THE 
STIPULATION OF SETTLEMENT IS AN APPROPRIATE, 
REASONABLE AND LAWFUL RESPONSE TO SEVENTEEN 
YEARS OF FAILURE TO ELIMINATE THE VESTIGES OF 
STATUTORY SEGREGATION IN TENNESSEE'S PUBLIC
PROFESSIONAL SCHOOLS ...............................  34

r

CONCLUSION .....................................................  4 3 l

l



TABLE OF AUTHORITIES

Adams v. Richardson, 480 F .2d 1159 (D.C. Cir. 1973)(en
banc) ......................................................  13,42

Airline Stewards and Stewardesses Assoc, v. American Air­
lines, 573 F . 2d 960 (7th Cir. 1978) ....................  34

In re Beef Industry Antitrust Litigation, 607 F .2d 167
(5th Cir. 1979) ..........................................  30

Booker v. State of Tennessee Board of Education, 240 F.2d
689 (6th Cir. 1957) ...................................... 3

Bratton v. City of Detroit, 704 F .2d 878 (6th Cir. 1983) ... 40
Brinkman v. Gilligan, 583 F .2d 243 (6th Cir. 1978), aff1d 

sub nom. Dayton Board of Education v. Brinkman, 443 
U.S. 526 ( 1979 )   35,36

Brown v. Board of Education, 347 U.S. 483 (1954) ...........  3,37,42
City of Detroit v. Grinnell Corporation, 495 F .2d 448 (2d

Cir. 1974) ................................................ 34
Cotton v. Hinton, 559 F . 2d 1326 (5th Cir. 1977) ............  34
Flinn v. FMC Corporation, 528 F .2d 1169 (4th Cir. 1975) .... 34
Fullilove v. Klutznick, 448 U.S. 448 (1980) ................. 40
Geier v. Alexander, 593 F .Supp. 1263 (M.D. Tenn. 1984) ....  9,25-28
Geier v. Blanton, 427 F.Supp. 644 (M.D. Tenn. 1977) ........ 5,21
Geier v. Dunn, 337 F.Supp. 573 (M.D. Tenn. 1972) ...........  4
Geier v. University of Tennessee, 597 F .2d 1056 (6th Cir.

197 9 ) , cert, denied, 444 U.S. 886 (19'79) ..............  2,6,35
Gray v. University of Tennessee, 97 F.Supp. 463 (E.D. Tenn.

1951), dismissed as moot, 342 U.S. 517 (1952) ......... 3
Green v. County School Board, 391 U.S. 430 (1968) .......... 24,35,36,

42

Page

CASES



Page

Haycraft v. Board of Education of Jefferson County, Ken­
tucky, 585 F . 2d 803 (6th Cir. 1978) ....................  35

Kelley v. Metropolitan County Board of Education, 687 F .2d
814 (6th Cir. 1982)   35,38

Keyes v. School District No. 1, 413 U.S. 189 (1973) ........ 35,37,42
Kirkland v. New York State Department of Correctional Ser­

vices, 711 F . 2d 1117 (2d Cir. 1983 ) .....................  33
Milliken v. Bradley, 418 U.S. 717 (1974) ....................  37,38,39
Milliken v. Bradley, 433 U.S. 267 (1977) ....................  36,37
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) ....  3
N.A.A.C.P. v. Lansing Board of Education, 559 F .2d 1042

(6th Cir. 1977) ..........................................  38
Newburg Area Council, Inc. v. Board of Education of

Jefferson County, Kentucky, 510 F .2d 1358 (6th Cir.
1974) .....................................................  38

Potts v. Flax, 313 F . 2d 284 (5th Cir. 1963) .............. . 37
Prater v. Boyd, 263 F . 2d 788 (6th Cir. 1959) ...............  3
Richardson v. Blanton, 597 F .2d 1078 (6th Cir. 1979) ....... 6,7
Sanders v. Ellington, 288 F .Supp. 937 (M.D. Tenn. 1968) .... 2,3
State ex rel. Michael v. Witham, 165 S.W.2d 378 (Tenn.

1942) .....................................................  3
Stotts v. Memphis Fire Department, 679 F .2d 541 (6th Cir.

1982), rev'd on other grounds sub nom. Firefighters 
Local Union No. 1784 v. Stotts, U.S. , 81 L.Ed.
2d 483 (1984) ............................................  30,34

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1 (1971) ..................................................  35,36,37,

39,42
United States v. Allegheny-Ludlum Industries, Inc., 517

F . 2d 826 (5th Cir. 1975) ................................  34
United States v. City of Miami, 664 F .2d 435 (5th Cir. 1981)

(en banc) .................................................  30

- i i i -

CASES



Page

United States v. Jefferson County Board of Education, 372
F . 2d 836 (5th Cir. 1966) ...............................  37,41

United States v. State of Louisiana, Civil Action No.
80-3300 (E.D. La. Sept. 8, 1981), approved, 527 F.
Supp. 509 (E.D. La. 1981)(three-judge court) ......... 39,40

United Steelworkers of America v. Weber, 443 U.S. 193
(1979) ...................................................  40

University of California Regents v. Bakke, 438 U.S. 265
( 1978) ...................................................  38,39

Utility Contractors Ass'n of New Jersey, Inc. v. Toops,
507 F . 2d 83 (3rd Cir. 1974) ............................ 30

Van Aken v. Young, 750 F . 2d 43 (6th Cir. 1984) ............  40
Vanguards of Cleveland v. City of Cleveland, 753 F .2d 479

( 6th Cir. 1985) ........................................  40
Williams v. Vukovich, 720 F .2d 909 (6th Cir. 1983) ........ 30,34
Wygant v. Jackson Board of Education, 746 F .2d 1152 (6th 

Cir. 1984), cert, granted, U.S. , 53 U.S.L.W.
3739 (April 15, 1985 )   40

STATUTES

Tennessee Acts 1941 ch. 43 ............................. 3
Tennessee Acts 1979 ch. 49 § 1 (eff. March 15, 1979) .....  3
Tennessee Code Ann. § 2403.3 .............................  3
Tennessee Code Ann. §§ 49-3701-03 (repealed eff. March 15,

1979) ....................................................  2
Tennessee Constitution of 1870, Art. 11 § 12 (repealed) ... 2

CASES

IV



Pa^e

OTHER AUTHORITIES

Tennessee Long-Range Plan for Promoting Additional Desegre­
gation of Public Higher Education in Tennessee (1974) . 5,12,16

Tennessee Desegregation Monitoring Committee, Desegregation 
Progress Report (1976) .................................. 13,14,18

Tennessee Desegregation Monitoring Committee, Desegregation 
Progress Report (1977) .................................. 6,7,9

Tennessee Desegregation Monitoring Committee, Desegregation 
Progress Report (1979) .................................. 9,11,14, 

15,16,17, 
19 '

Tennessee Desegregation Monitoring Committee, Desegregation 
Progress Report (1980) .................................. 9,15

Tennessee Desegregation Monitoring Committee, Desegregation 
Progress Report (1981) .................................. 9,15

Tennessee Desegregation Monitoring Committee, Desegregation 
Progress Report (1982) .................................. 9,10,11,

15,17,19
Tennessee Desegregation Monitoring Committee, Desegregation 

Progress Report (1983) .................................. 10,15,17
Tennessee Desegregation Monitoring Committee, Desegregation 

Progress Report (1984) .................................. 10,11,12,
15,17,18,
19,20

United States Department of Commerce, Bureau of the Census, 
County and City Data Book 1983 ......................... 10

United States Department of Health, Education and Welfare, 
Revised Criteria Specifying the Ingredients of Accept­
able Plans to Desegregate State Systems of Public 
Higher Education, 43 Federal Register 6658 (No. 32,
Feb. 15, 1978) ........................................... 6,7

v



DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, Plaintiff/Intervenors-Appellees Raymond 
Richardson, Jr., et al. make the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? 
No
If the answer is YES, list below the identity of the parent corporation 
or affiliate and the relationship between it and the named party:

2. Is there a publicly owned corporation, not a party to the appeal, that 
has a financial interest in the outcome? No
If the answer is YES, list the identity of such corporation and the 
nature of the financial interest:

August 9, 1985 
(Date)

6CA-1
2/85



No. 84-6055

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RITA SANDERS GEIER, et al. ,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaintiff/Intervenor-Appellant, 

RAYMOND RICHARDSON, JR., et al.,
Plaintiff/Intervenors-Appellees, 

H. COLEMAN McGINNIS, et al.,
Plaintiff/Intervenors-Appellees, 

vs.
LAMAR ALEXANDER, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the 
Middle District of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFF/INTERVENORS-APPELLEES 
RAYMOND RICHARDSON, JR., et al.

QUESTIONS PRESENTED

1. . WHETHER THE DISTRICT COURT GAVE FULL AND FAIR
CONSIDERATION TO THE JUSTICE DEPARTMENT'S 
OBJECTIONS TO THE STIPULATION OF SETTLEMENT

2. WHETHER THE PRE-PROFESSIONAL TRAINING PRO­
GRAM OF THE STIPULATION OF SETTLEMENT IS AN 
APPROPRIATE, REASONABLE AND LAWFUL RESPONSE 
TO SEVENTEEN YEARS OF FAILURE TO ELIMINATE 
THE VESTIGES OF STATUTORY SEGREGATION IN 
TENNESSEE'S PUBLIC PROFESSIONAL SCHOOLS



STATEMENT OF THE CASE

I. Course of Prior Proceedings

This class action was filed in 1968. In its first opinion in 
the case, Sanders v . Ellington, 288 F .Supp. 937 (M.D . Tenn. 1968) , 
the Court (the late Frank Gray, Jr.) noted that "[t]he history of 
public educational opportunities for Negroes in Tennessee is 
not a pretty one." Id. at 939. State-supported institutions of 
higher education were strictly segregated by state law,-^ and * 03

1/ The Tennessee Constitution of 1870, Art. 11 § 12, provided 
that "[n]o school established or aided under this section shall 
allow white and negro children to be received as scholars together 
in the same school." Art. 11 § 12 was not formally repealed until 
1978.

"In 1901 Tennessee became the first state to enact criminal 
statutes requiring racial segregation in all public and private 
colleges." Geier v. University of Tennessee, 597 F . 2d 1056, 1058 
n. 1 (6th Cir. 1979). Those statutes, Tenn. Code Ann. §§ 49-3701-
03, provided as follows:

49-3701. Interracial schools prohibited.
—  It shall be unlawful for any school, academy, 
college, or other place of learning to allow white 
and colored persons to attend the same school, 
academy, college, or other place of learning.

49-3702. Teaching of mixed classes prohibited.
—  It shall be unlawful for any teacher, pro­
fessor, or educator in any college, academy, or 
school of learning, to allow the white and colored 
races to attend the same school, or for any 
teacher or educator, or other person to instruct 
or teach both the white and colored races in the 
same class, school, or college building, or in any 
other place or places of learning, or allow or 
permit the same to be done with their knowledge, 
consent, or procurement.

49-3703. Penalty of violations. -- Any person 
violating any of the provisions of this chapter, 
shall be guilty of a misdemeanor, and, upon con­
viction, shall be fined for each offense fifty 
dollars ($50.00), and imprisonment not less than 
thirty (30) days nor more than six (6) months.

2 [Footnote 1/ continued on 
next page]



even after Brown v. Board of Education, 347 U.S. 483 (1954), "delay
2/was the order of the day. " Id. at 940 .— It was not until six years 

after Brown that racial requirements for admission to public 
college and universities were abolished. Ibid.

The Court in Sanders found that as of 1968, eight years after 
establishment of an "open door" admission policy, "the dual system

1/ Continued
The statutes were not formally repealed until Acts 1979, ch. 49 §1, 
effective March 15, 1979.

The effort to desegregate Tennessee's institutions of public 
higher education substantially pre-dates Brown v. Board of Educa­
tion , 347 U.S. 483 ( 1954). Shortly after Missouri ex rel. Gaines 
v. Canada, 305 U.S. 337 ( 1938 ), which required the states to
provide within their borders substantially equal higher educa­
tional opportunities to their black citizens, several blacks sued 
in Tennessee state court seeking admission to the University 
of Tennessee ( UT ) law school and graduate department. To circum­
vent their applications the Tennessee General Assembly enacted 
Chapter 43 of the Public Acts of 1941 (later codified as Tenn. Code 
Ann. §2403.3), which promised "educational training and instruc­
tion for negro citizens of Tennessee equivalent to that provided 
at the University of Tennessee by the State of Tennessee for 
white citizens of Tennessee ...; provided, that members of the 
negro race and white race shall not attend the same institution or 
place of learning." The plaintiffs suing to gain admission to UT 
objected that this statute left enforcement entirely within the 
discretion of state educational authorities and that no funds had 
been appropriated for enforcement. However, the Tennessee Supreme 
Court declared their objections "wholly without merit," held that 
passage of the statute alone rendered the case moot, and dismissed 
the action with the comment, "What more could be demanded?" State 
ex rel. Michael v. Witham, 165 S.W.2d 378, 381, 382 (Tenn. 1942).

A decade later, a federal district court in Tennessee found 
that the 1941 statute had in fact never been enforced. The court 
accordingly held that several blacks were entitled to admission to 
UT's law school and graduate division. One black was actually 
enrolled in the graduate division as a result of this lawsuit. 
Gray v . University of Tennessee, 97 F .Supp. 46 3 (E .D . Tenn. 19 51) , 
dismissed as moot, 342 U.S. 517 (1952).
2/ See, e .g ., Booker v . State of Tennessee Board of Education, 
240 F.2d 689 (6th Cir. 1957)(describing the State's efforts to 
delay desegregation) ; Prater v. Boyd, 263 F. 2d 788 ( 6th Cir. 1959 ) .

3



of education created originially by law [had] not been effectively 
dismantled." 288 F. Supp. at 940. Holding that the Fourteenth 
Amendment imposes an "affirmative duty" upon tne state to dis­
mantle the dual system, and that an "open door" policy alone does 
not discharge that affirmative duty where "no genuine progress 
toward desegregation" is being made, the Court ordered defendants 
to submit a plan to effectuate desegregation. Id. at 942.

Four years later, Judge Gray issued another opinion. 
Geier v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972) . At that time the 
Court found that with the exception of the nearly all-black 
Tennessee State University (TSU), defendants were desegregating 
at a "constitutionally-permissible rate of speed." Id. at 580. 
While noting that defendants' degree of success was "in some 
respects disappointing," ibid., especially with respect to deseg­
regation of faculty, id. at 576, Judge Gray accepted defendants' 
rate of progress largely because statewide minority enrollment 
was at that time increasing on a regular basis year by year. 
Accordingly, the relief ordered in 1972 was limited to a require­
ment that defendants submit further plans for desegregation of 
TSU. Id. at 581.

On May 8, 1973, plaintiff-intervenors Raymond Richardson, 
Jr., et al. , filed a motion for injunctive relief to prohibit 
creation of two separate campuses for Shelby State Community 
College in Memphis. Plaintiff-intervenors alleged that creation 
of these two campuses, one in midtown and one in the suburbs, would 
foster segregation. In an unpublished Memorandum and Order dated 
June 20, 1973, Judge Gray granted the relief sought on the ground

4



that establishment of the two campuses "would be constitutionally
impermissible as tending to promote segregation in the State's
public institutions of higher learning and would be violative of
defendants' affirmative duty to dismantle the dual system of public

3/higher education in Tennessee."—
The Court's next opinion, reluctantly requiring a merger of TSU 

with the primarily white University of Tennessee at Nashville 
(UT-N) after nearly a decade of efforts to arrive at a less drastic 
solution, was issued four years later. Geier v. Blanton, 427 F. 
Supp. 644 (M.D. Tenn. 1977). With respect to statewide desegre­
gation, Judge Gray ordered no specific measures but did require 
implementation of defendants' Long Range Plan (filed on July 25, 
1974) under the supervision of the Desegregation Monitoring Com­
mittee established by the Plan. 427 F. Supp. at 651, 661-62.—  ̂

The Court stated:
Progress by the defendants in the dismantling 

of a dual system of higher education in 
Tennessee, outside the Nashville area, has 
been slow, but the Court does not find that it 
has been so slow and devoid of good-faith ef­
fort as to show that it constitutes, at this 
time, a violation of constitutional require­
ments. The Long Range Plan, as it applies to 
such matters, appears to be a promising step 
forward and, under the careful supervision of 
the Monitoring Committee, should result in 
further progress.

3/ Joint Appendix in Geier v. University of Tennessee, 6th Cir. , 
Nos. 77-1621-25 (hereinafter "Prior Joint Appendix"), Vol. II, p. 
275. The Prior Joint Appendix has been designated as part of the 
record of this appeal (see docket no. 168, designation of plain- 
tiff-intervenors Raymond Richardson, Jr., et al.).
4/ The Desegregation Monitoring Committee consists of repre­
sentatives from the University of Tennessee, the State Board of 
Regents, and the Tennessee Higher Education Commission.

5



Id. at 661. However, the Court also declared that it would
retain jurisdiction so that, should the state­
wide progress be abated, it may consider spe­
cific State policies as they relate to the 
decline in progress.

Id. at 651.
Plaintiff-intervenors Richardson, et al. appealed, contend­

ing that the Court's 1977 judgment was inadequate with respect to 
statewide desegregation.-^ While the appeal was pending, plain­
tif f-intervenors filed a supplemental brief contending that de­
fendants' 1977 Progress Report (docket no. 14) demonstrated a lack 
of progress in statewide desegregation, and further contending 
that defendants should be required to conform to the Revised 
Criteria Specifying the Ingredients of Acceptable Plans to Deseg­
regate State Systems of Public Higher Education, promulgated in 
1978 by the United States Department of Health, Education and 
Welfare, 43 Federal Register 6658 (No. 32, February 15, 1978). 
This Court affirmed Judge Gray's 1977 judgment, but noted that

[t]he [district] court retained jurisdiction 
to implement its judgment and orders. If ... 
progress should halt or seriously falter the 
court will be in a position to impose new 
requirements.

Richardson v . Blanton, 597 F.2d 1078, 1086 (6 th Cir. 1979). With 
respect to the arguments advanced in plaintiff-intervenors' 
supplemental brief, the Court stated:

5/ Defendants also appealed the Court's requirement of a merg­
er between TSU and UT-N. The judgment requiring that merger was 
affirmed in Geier v. University of Tennessee, 597 F . 2d 1056 (6th 
Cir. 1979), cert, denied, 444 U.S. 886 (1979). Much of the 
history set forth above is also described in that opinion.

6



Upon issuance of the mandate from this court 
the parties will be free to seek a hearing in 
the district court on any motions related to 
developments since the judgment was entered in 
this case. Matters related to the February 16,
1978 progress report and the revised HEW cri­
teria should be presented in this manner....
As has been emphasized repeatedly herein, the 
district court has retained jurisdiction to 
oversee implementation of the long range plan.
If further refinements of the plan or new de­
vices are required to reach the condition 
which the Constitution requires, nothing 
contained in this opinion will hinder the 
district court from taking all steps reason­
ably calculated to achieve that goal.

Id. at 1087.
In January 1981 plaintiff-intervenors Richardson, et al. 

filed a motion for further relief, based upon defendants' own 
Desegregation Progress Reports, requesting the Court-^ to order 
additional injunctive relief to effectuate statewide desegre­
gation of Tennessee's state-supported colleges and universities 
(docket no. 18). Additional motions for further relief were filed 
by the original plaintiffs in November 1982 (docket no. 43) and by 
a new group of plaintiff-intervenors, comprised of certain TSU 
faculty members and students (plaintiff-intervenors McGinnis, et 
al.), in September 1983 (docket no. 68). The United States, which 
has been a plaintiff-intervenor since July 22, 1968, when Judge 
Gray granted the intervention motion of Attorney General Ramsey 
Clark,—^ filed no motion for further relief and no response to any

6/ By now the case had been re-assigned to Hon. Thomas 
Wiseman, following the death of Judge Gray.
7/ Prior Joint Appendix, Vol. I, pp. 29-30. The 1968 Complaint 
in Intervention of the United States alleged that "[t]he defend­
ants, in operating the public universities of the State of 
Tennessee, have failed to take necessary steps to disestablish the 
racially based dual system of higher education in Tennessee and 
substantial racial segregation in those universities has con-

7 [Footnote _7/ continued on next 
page]



of the pending motions of the other parties for further relief. 
However, as noted in Appellant's brief ("App. Br.") at 9, the 
Justice Department was represented at settlement negotiations 
which took place in May-July 1984.

On July 30, 1984, all parties except the United States 
reached a tentative settlement of all of the outstanding motions 
for further relief. That settlement agreement, initially filed 
on August 2, 1984 (docket no 141), provides for approximately 
twenty new programs aimed at desegegating Tennessee's public 
institutions of higher education. However, the Department of 
Justice indicated in open court on July 30 that it could not agree 
to the tentative settlement (transcript, docket no. 144). The 
Department subsequently filed a brief (docket no. 143) in which 
it objected to most of the programs of the settlement on the 
ground that they i) contained too many race-conscious remedies, 
ii) contained too many percentage goals and timetables, iii) were 
based upon insufficient evidence of continuing vestiges of 
Tennessee's dual system of public higher education and iv) were 
based upon insufficient evidence that any individual black person 
in Tennessee was today the individual victim of discrimination in 
public higher education.

On August 13, 1984, the Court heard oral argument from 
counsel for all sides (transcript, docket no. 152), following

7/ Continued
tinued, in violation of the Fourteenth Amendment to the Con­
stitution of the United States, id. at 32. The Complaint prayed 
that the District Court enjoin the defendants from "failing or 
refusing to take all reasonable steps necessary to disestablish 
the dual system of higher education." Id. at 33.

8



which the parties met on two occasions in an effort to resolve the 
objections of the Department of Justice. The parties then 
reported that they had not been able to resolve the matter, and 
on September 25, 1984, the District Court approved the final text 
of the Stipulation of Settlement over the Justice Department's 
objections (docket nos. 163 & 164). Geier v. Alexander, 593
F.Supp. 1263 (M.D. Tenn. 1984).

The Justice Department filed its notice of appeal on November 
26, 1984 (docket no. 166). In its statement of the issues to be 
raised on appeal, contained in a Civil Pre-Argument Statement to 
this Court dated December 6, 1984, it once again attacked the
entire Stipulation of Settlment on the ground that it "utilizes 
racial classifications and accords preferential treatment to 
persons not identified as victims of discrimination." However, 
the Department's brief, filed on June 14, 1985, singles out only 
one of the approximately twenty programs of the Stipulation as the 
target of its appeal: the pre-professional training program of
paragraph II (N).
II. Statement of Facts

A. Tennessee's Record of Desegregation from 
1977-84: the Data of the Desegregation Pro-
gress Reports__________________________________

The record upon which the District Court approved the Stipu­
lation of Settlement included annual Desegregation Progress Re­
ports to the Court, prepared by Desegregation Monitoring Com­
mittee. Docket nos. 14 (1977), 17 (1979) 21 (1980), 41 (1981), 55

9



(1982) and 98 (1983).—^ Those reports contain the basic data upon 
which it is possible to ascertain the extent of Tennessee's 
progress in eliminating the vestiges of de jure segregation.

1. Professional Schools
The data before the District Court established that in 

no category of desegregation was Tennessee's performance worse
than with respect to professional school enrollment. In a State

9 /whose population is 15.8% black,—7 the medical schools are today 
only 2.5% black, the dentistry school is only 2.3% black, the 
pharmacy school is only 4.5% black, the school of veterinary 
medicine has no blacks, the law schools are only 7% black, and 
total professional school enrollment is only 4.2% black. And, in 
most instances, the percentages set forth above represent the 
zenith of Tennessee's progress over an eight-year period. As the 
following table demonstrates, it has been a long, slow climb for 
Tennessee to reach even these figures:

8/ The 1984 Desegregation Progess Report, filed June 11, 1985 
(docket no. 174), has been transmitted to this Court as a Sup­
plemental Record for this appeal by order of the District Court 
entered June 28, 1985.
9/ United States Department of Commerce, Bureau of the Census, 
County and City Data Book, 1983, p. 494.

10



Percentage of Blacks in the Total Enrollment 
of the Professional Schools of Tennessee's 
Public Higher Education System (1977-84)12/

Medical Schools Dental Pharmacy
Veterinary
Medicine Law Schools

Grand
Total

UTCHS ETSU Total UTCHS UTCHS UT UT MSU Total
1977 1.3 NA 1.3 1.1 1.8 0 3.7 3.1 3.4 2.1
1978 1.8 0 1.7 0.9 2.8 0.6 2.3 3.9 3.0 2.1
1979 1.7 3.5 1.8 0.5 3.7 0.5 2.8 5.1 3.9 2.5
1980 1.6 3.8 1.9 0.9 3.4 0.5 2.0 5.1 3.6 2.4
1981 1.4 4.1 1.9 1.1 2.9 0 1.6 6.3 3.9 2.4
1982 0.5 4.0 1.2 1.6 0.3 0 1.5 8.0 4.7 2.5
1983 1.3 4.9 2.1 1.7 3.4 0 4.9 9.0 7.0 3.9
1984 1.2 6.7 2.5 2.3 4.5 0 5.6 8.3 7.0 4.2

10/ Sources: Desegregation Progress Reports of 1979, 1982 and 1984 (docket nos. 17
and 55; docket no. 174, supplemental record), table one of each Report.

A more detailed table derived from the sane sources, setting forth the raw data 
upon which these percentages are based, is annexed to this brief as Appendix A.

- 11 -



The available figures with respect to the granting of pro­
fessional degrees are even more dismal: in 1983-1984 blacks received 
only 2.22% of the professional degrees granted by the State's public 
higher education system. The highest black percentage of pro­
fessional degree recipients on record, attained in 1981-82, was only 
2.33%.

Percentage of Blacks Among Recipients 
of Professional Degrees from Tennessee's 
Public Higher Education System( 1980-84 )jJL/

ETSU
(Medical)

UTCHS UT MSU
(Law)

Total

1980-81 NA 0.61 1.56 1.36 1.09
1981-82 0 1.94 0.79 6.62 2.33
1982-83 0 C . 58 1.21 4.94 1.66
1983-84 1.75 0.97 1.62 5.96 2.22

Tennessee's ineffectual efforts and lack of progress in deseg­
regating its professional schools have long been a matter of record 
in this case. The United States, in its 1974 response and objections 
to the defendants' first Long-Range Plan, criticized the State for 
having paid inadequate attention to eliminating the enrollment gap 
between blacks and whites at the State's professional schools. The

11/ Source: Desegregation Progress Report of 1984 (docket no. 174, 
supplemental record), table 7.

Defendants' prior Desegregation Progress Reports did not pro­
vide separate data for professional degrees. The latest Report does 
contain such data, although it does not provide a breakdown 
by school for UTCHS (the UT Center for Health Sciences in Memphis, 
which includes the University's schools of medicine, dentistry and 
pharmacy) and UT (the University's schools of law and veterinary 
medicine, both in Knoxville).

A more detailed table derived from the same source, setting 
forth the raw data upon which these percentages are based, is annexed 
to this brief as Appendix B.

12



United States quoted the then-recently decided case of Adams v. 
Richardson, 480 F.2d 1159, 1164-65 (D.C. Cir. 1973)(en banc):
"Perhaps the most serious problem in [desegregating higher educa­
tion] is the lack of statewide planning to provide more and better 
trained minority group doctors, lawyers, engineers and other 
professionals. ^

At a hearing before Judge Gray in 1976 one of the expert 
witnesses for the United States, Dr. Elias Blake, Jr., criticized 
Memphis State University (MSU) for inadequate efforts to desegregate 
its law school. ("I would think that a law school could do better 
than this because law schools do do better.")— Dr. Blake com­
plained that inadequate desegregation efforts throughout 
Tennessee's public higher education system would mean that even by 
the year 2000 blacks could not "participate in the professional and 
economic life of the state, which is what higher education is all 
about."— '/ Both of the State's law schools were also severely 
criticized by plaintiff-intervenor Dr. Raymond Richardson, Jr. for 
an "appalling" desegregation record, indicative of "insensitivity," 
during the eight years that this case had then been pending.— ^

The first Desegregation Progress Report of Tennessee's De­
segregation Monitoring Committee , filed on February 15, 1976, stated

12/ Prior Joint Appendix, Vol. II, pp. 432-33 & n. 37. 
13/ Id. at Vol. IV, p. 902.
14/ Id. at Vol. IV, p. 891.
15/ Id. at Vol. VII, p. 1961.



the following with respect to the University of Tennessee's 
professional schools:

[P]rogress in the two most prestigous pro­
fessional colleges, Law and Medicine, is non­
existent.... The mechanisms employed in the 
past do not appear to be achieving the desired 
result. The development and implementation of 
additional steps for increasing black enroll­
ment in the professional colleges demands im­
mediate attention by the responsible faculty 
and admininstrative bodies.16/

The same Report contains 1980 projections by UT for its Center for
Health Sciences (UTCHS) in Memphis of 5.5% for the medical school

17/and 4.8% for the dental school.—  As demonstrated by the table 
on p. 11, supra, in 1984 UTCHS was still not even close to achieving 
these goals.— '

Prior to developing the pre-professional training program of 
the 1984 Stipulation of Settlement, defendants experimented with 
a variety of programs aimed at desegregating its professional 
schools. For example, the 1979 Desegregation Progress Report 
(docket no. 17) at 56-65 and 71-75 describes an "Admissions by 
Performance Institute" (API), sponsored by the UT (Knoxville) and 
MSU law schools each summer since 1977, designed to assist disad-

16/ Ld. at Vol. II, p. 516.
17/ Id. at Vol. Ill, p. 631.
18/ Tennessee's worst desegregation performance has been at the 
UT School of Veterinary Medicine, which has had only one black 
student in its history and presently has none (see Appendix A to 
this brief at A-2). At the 1976 hearing before Judge Gray, the 
Executive Director of Tennessee's Higher Education Commission 
conceded that the then-recently established school could have been 
helpful to desegregation at TSU had it been located at that campus 
instead of UT-Knoxvi1le. Transcript of Testimony of Dr. George 
Wayne Brown, Vol. la, p. 1120.

14



vantaged students of all races in obtaining admission into law 
school.— ^ The program is discussed again in the 1980 Deseg­
regation Progress Report (docket no. 21) at 58-62 and the 1981 
Desegregation Progress Report (docket no. 41) at 55—65. A memo­
randum by the dean of UT's law school, reproduced in the 1981 
Report at 63, concedes that "this program has not enabled the Law 
College substantially to increase minority enrollment." Accord­
ing to the 1982 Report (docket no. 55) at 12, UT withdrew from the 
program after the summer of 1982 and planned instead to increase 
its participation in a Council on Legal Education Opportunities 
(CLEO) summer program. Budget lines for the API program at MSU, 
as well as for "minority law scholarships" (MSU) and "law school 
affirmative action" (UT-Knoxville), appear in the 1983 Report 
(docket no. 98) at 39 and 41 and the 1984 Report (docket no. 174, 
supplemental record) at 50 and 53.

19/ The program was conceived in 1976 shortly after issuance of 
defendants' first Desegregation Progress Report, and was the 
subject of extensive planning and discussion before the Deseg­
regation Monitoring Committee. See Prior Joint Appendix, Vol. 
XVI, pp. 4382-91 and 4395-99 (presentations of MSU President Dr. 
Billy M. Jones and UT Law School Dean Kenneth Penegar at the 
Committee's meeting of April 12, 1976); id. at 4422-26 (pre­
sentation of UT Vice-President Dr. John W. Prados at the Com­
mittee' s meeting of Sept. 13, 1976); _id. at 4544-49 (memoranda 
of UT-Knoxville Chancellor Dr. Jack E. Reese, MSU President 
Jones, and TSU President Dr. Frederick S. Humphries). The program 
was also discussed in testimony by Dr. Jones and State Board of 
Regents Chancellor Dr. Roy S. Nicks at the 1976 hearing before 
Judge Gray. Prior Joint Appendix, Vol. IV, p., 862-65 and Vol. VI, 
pp. 1523-34.

Although both Dr. Reese and Dr. Humphries favored locating the 
program at TSU to maximize the chances of attracting black appli­
cants (Prior Joint Appendix, Vol. XVI, p. 4423), defendants 
instead chose to locate it in alternate years at UT-Knoxville 
(1979 Progress Report, docket no. 17, at 8; 1981 Progress Report, 
docket no. 41, at 9) or MSU (1980 Progress Report, docket no. 21, 
at 9; 1982 Progress Report, docket no. 55, at 12).

15



Tennessee's unsuccessful past efforts with respect to its other
professional schools have been even more extensive. For example,
the 1974 Long-Range Plan announced the establishment of a Division
of Minority Affairs at UTCHS (Memphis). The Division was supposed
to engage in extensive minority recruitment efforts including a
college visitation program and individual and group counseling;
plans for a "Health Careers Summer Program," to provide 8-12 weeks
of clinical experience to academically talented minority students,

20 /were also described in the document.—  Defendants predicted that 
these programs would lead to "a significant increase in minority 
enrollment" at UTCHS.— '/

At a meeting of the Desegregation Monitoring Committee on April
12, 1976, UTCHS reported increased efforts at recruitment and

22/retention of black students,—  and stated that it was "optimistic
23/about the future."—  Later that year a UT Vice-Chancellor,

testifying at the hearing before Judge Gray, praised UTCHS's 
outreach program: "They have established a real large pool of black
student[s] from throughout the state who in turn assist them in 
recruitment efforts."— ^

The 1979 Desegregation Progress Report (docket no. 17) at 81- 
121 describes a "Pre-Medical Enrichment Program," conducted by UT-

20/ Prior Joint Appendix, Vol. II, pp. 349-52. 
21/ Id. at Vol. II, p. 351.
22/ Id. at Vol. XVI, pp. 4391-94.
23/ Id. at Vol. XVI, p. 4394 .
2A/ Id. at Vol. VII, pp. 1825-26.

16



Knoxville and Eastern Tennessee State University (ETSU) in the 
summer of 1979, designed to help pre-medical students from "low 
income and/or minority backgrounds" (_id. at 82) obtain admission 
into medical school. The UT section of the report laments that it 
was necessary to reduce the size of the program from 15 students to 
10 because of budget cutbacks (ibid.). In 1982 UTCHS began a 
"Health Careers Opportunity Program" (HCOP), designed to attract 
and retain black students. The program is discussed in detail in 
the 1982 Desegregation Progress Report (docket no. 55) at 63-80. 
Budget lines for these programs, as well as for scholarships, appear 
in the 1983 Report (docket no. 98) at 39 and 41 and the 1984 Report 
(docket no. 174, supplemental record) at 50 and 53.

Given the very limited progress achieved by these programs ( see 
pp. 10-12, supra), defendants resolved in the settlement negotia­
tions of 1984 to try something new. Accordingly, they proposed the 
larger and more intensive pre-professional training program 
described in If II (N) of the Stipulation of Settlement:

Defendants will coordinate the development of 
a cooperative program to increase the number 
of black students who enroll in and graduate 
from professional programs. Every spring be­
ginning in 1985 and for five years, 75 black 
sophomore students who are Tennessee resi­
dents enrolled in Tennessee public institu­
tions will be selected by committees repre­
senting the faculties of all state-supported 
professional schools and all other public 
universities in the state for pre-enrollment 
in the state's schools of law, veterinary 
medicine, dentistry, pharmacy and medicine.
There shall be representation by black faculty 
members on these committees, to the extent 
available. The professional schools will 
counsel these students, assist in planning 
their pre-professional curricula, provide

17



summer programs at the end of their junior and 
senior years and agree to their admission as 
first year professional students if they suc­
cessfully complete their undergraduate work 
and meet minimum admissions standards. De­
fendants will consult with other states that 
have developed similar programs [ e . g . , Ken­
tucky] and complete development of the program 
described in this paragraph II, (N), includ­
ing a proposed budget and projected source of 
funds, within 180 days.

Docket no. 164, p. 11; 593 F.Supp. at 1271.
It should be noted that even this program will not result in 

achievement of Tennessee's long-range desegregation goals for its 
professional schools. Because the mission and service area of each 
of these schools is statewide, the goal for each of them is based 
upon the black population percentage statewide —  presently 
15.8%.— ^ In 1984 the professional schools covered by II (N) had 
a total enrollment of 2,853, of which only 4.2% were black.— x If 
every one of the 75 black students in the pre-professional training 
program were to meet minimum admission standards over a four year 
period, creating a total black enrollment of 300, the percentage 
of blacks in these schools would rise to only 10.5%. And that 
estimate is highly inflated, since many of the courses of instruc­
tion are shorter than four years and not all of the 75 students will 
meet minimum requirements. Even if a handful of blacks gain 
admission without the program, it is highly unlikely that the 
percentage of blacks enrolled in professional schools

25/ 1984 Desegregation Progress Report (docket no. 174, sup­
plemental record), table one. See also 1976 Desegregation Pro­
gress Report, Prior Joint Appendix, Vol. Ill, p. 631.
26/ See Appendix A to this brief at A-2.

18



statewide would exceed 8% under ^ II (N) of the Stipulation of 
2 7/Settlement.— This would come close to doubling the 4.2% pre­

sently enrolled, but would still leave the State with a long way 
to go in order to meet desegregation goals for professional 
schools.

2. Other Schools
The evidence before the District Court also established that 

Tennessee had been making slow or non-existent progress with 
respect to desegregation of students and faculty throughout its 
public higher education system. Thus, the Court had little reason 
to believe that progress in the undergraduate or graduate schools 
would eventually lead to a higher rate of black enrollment in the 
professional schools covered by If 11 (N) of the Stipulation.

For example, black undergraduate enrollment, which reached a
peak of 16% in 1979, fell steadily in subsequent years. It now

2 8 /stands at 14.4%, its lowest level since 1975.— ' This enrollment 
is concentrated primarily in only two of the State's twenty

27/ The courses of instruction at the law schools and the school 
of veterinary medicine run for three years. These schools 
comprise 44.8% of the total professional school enrollment (1278 
of 2853). Adjusting for this factor, total black enrollment under 
the program after four years would be 266.4, or 9.3%, even if every 
one of the 75 black students were to gain admission to professional 
school each year and none were to drop out or fail after admission. 
If 60 of the 75 were to gain admission each year and remain 
enrolled, total black enrollment under the program after four 
years would be only 213.1, or 7.5%.
28/ The 1977-84 enrollment data set forth below at pp. 19-21 is 
derived from the Desegregation Progress Reports of 1979, 1982 and 
1984 (docket nos. 17 and 55; docket no. 174, supplemental record), 
table one of each report; degree-granting data is derived from 
table 7 of the 1984 Report and table 5 of the 1979 and 1982 Reports. 
1975-76 data may be found by reference to the Motion for Further 
Relief of Plaintiff-Intervenors Raymond Richardson, Jr., et al. 
(docket no. 18), Tables II, III, VII and X, containing data from 
earlier Progress Reports.

19



institutions of public higher education, TSU and Shelby State 
Community College, both of which are predominantly black. These 
two schools have consistently accounted for 43-44% of the State's 
black undergraduates over the past ten years.

The University of Tennessee system, on the other hand, remains 
mostly white. In 1984 black undergraduate enrollment at UT' s 
campuses fell to 7.9%, and at the flagship Knoxville campus it fell 
to 4.8%. Both percentages represent the lowest level of black 
enrollment since 1976.

Due to a substantial gap between the promotion rates of black 
and white students (see 1984 Report, docket no. 174, supplemental 
record, at 7), the percentage of blacks obtaining bachelor's 
degrees is significantly lower than the percentage of blacks 
enrolled at the undergraduate level. In 1983-84 blacks repre­
sented only 10.32% of the recipients of bachelor's degrees state­
wide; this percentage was 1.02% lower than in 1980-81. Without 
TSU, blacks accounted for only 6.97% of the bachelor's degrees 
statewide —  the lowest rate in that category since 1978-79.

Black graduate school enrollment statewide is presently 9.1%. 
It was 9.8% when the Richardson intervenors filed their motion for 
further relief in January 1981. It was 10.1% in 1976. Blacks 
accounted for only 8.35% of the master's degrees granted statewide 
in 1983-84, the lowest percentage ever recorded in that category 
by the Desegregation Monitoring Committee. Blacks received 11.5% 
of the master's degrees awarded in 1975-76.

Blacks now represent only 6% of the faculty at Tennessee's 
institutions of public higher education. This is the lowest rate 
of black faculty presence since 1975. TSU and Shelby State account

20



for 61.4% of the black faculty statewide.—
B . 1984 Proceedings Before the District Court
Early in 1984, the parties in this case intensified their 

efforts to reach a settlement of the three pending motions for 
further relief -- the motions of the Richardson intervenors, the 
original plaintiffs and the McGinnis intervenors. The United 
States, the only plaintiff group which had not sought further relief 
or responded to the allegations of the three pending motions, ini­
tially was not present at these discussions. However, in late April 
1984 the Department of Justice asked to participate in the discus­
sions, and did participate actively thereafter. See United States' 
District Court Memorandum (docket no. 143) at 4.

On July 20, 1984, the parties advised the Court that all except 
the McGinnis intervenors had reached agreement. Transcript of July 
20, 1984 (docket no. 144) at 5. The representative of the Justice 
Department did indicate, however, that final approval by her office 
would have to await review by "the appropriate authorities" at the 
Department. Id. at 9, 10.

On July 30, 1984, another representative of the Justice Depart­
ment expressed concern in open court that there was an inadequate 
"foundation" for some of the programs contained in the proposed 
stipulation. Transcript of July 30, 1984 (docket no. 144) at 6, 25- 
26. The pre-professional training program was not specifically men­
tioned at this time, nor was an evidentiary hearing requested; the

29/

29/ in 1977, when Judge Gray criticized defendants' lack of progress 
in desegregating faculty, TSU and Shelby State accounted for only 
about 55% of black faculty statewide. Geier v. Blanton, supra, 427 
F.Supp. at 650-51.

21



Justice Department representative merely urged the parties to un­
dertake several studies before deciding upon the programs to be 
included in the final settlement. Id. at 9. The Court did not 
reject the proposition out of hand, but did state the following:

[0]f course, this Court will be reluctant to 
make any kind of finding without a basis in the 
record on which to do so.... However, this 
Court does have before it a 16-year history of 
this case and reports of the Monitoring Com­
mittee and the rather obvious inferences that 
may be drawn from the progression or lack 
thereof as demonstrated by the reports of the 
Monitoring Committee.

Id. at 6-7.
During out-of-court negotiations on July 30, 1984, the 

McGinnis intervenors reached agreement with the Richardson inter- 
venors, the original plaintiffs and the defendants, leaving the 
Government as the only party not in agreement with all others. Id. 
at 19. The District Court was advised of the settlement and of the 
Justice Department's failure to join it, and stated on the record 
that it was inclined to approve the agreement notwithstanding the 
Department's objections. Id. at 24-25. However, at the parties' 
request the Court adjourned the matter to August 2, 1984, to allow 
for further consultation with the Department. Id. at 32-33.

On August 2 the Court was advised that the Department still 
would not sign the Stipulation of Settlement. Transcript of Aug. 
2, 1984 (docket no. 144) at 34. The Justice Department attorney 
who had spoken on July 30 was present, but again made no specific 
mention of the pre-professional training program and no request 
for an evidentiary hearing. The Justice Department attorney did

22



single out several numerical goals and timetables in the Stipu­
lation as objectionable to his superior, Assistant Attorney Gener­
al William Bradford Reynolds: "Mr. Reynolds' policy is that he is 
against racial quotas as a means of desegregating institutions of 
higher education." Id. at 44-45. The Court was once more urged 
to await the outcome of various studies required by the Stipulation 
before approving any further relief. Id. at 44. In response, the 
Court again indicated preliminary approval of the settlement, 
ordered the Department to file written objections by August 9, and 
set August 13 as the date for hearing its objections. Id. at 41- 
48.

On August 9, 1984, the Department filed a 31-page memorandum 
opposing numerous provisions of the settlement including the pre­
professional training program. Docket no. 143. The general thrust 
of the memorandum was that "a court's remedial authority to order 
affirmative equitable relief is limited to those measures neces­
sary to 'make whole' actual victims of unlawful discrimination." 
Id. at 11 (heading, Point II) . The memorandum was largely a state­
ment of constitutional philosophy, and did not specify what evi­
dence, if any, the Department might adduce at an evidentiary 
hearing. With respect to the pre-professional training program, 
the only passage of the memorandum that alluded to an evidentiary 
hearing was the following:

[T]he proposed consent decree's requirement 
that a set number of black sophomores be se­
lected each year for special preparation for 
and preferential admission to professional 
schools is wholly indifferent to whether any 
of the 75 beneficiaries have, even arguably,

23



been victims of discriminatory conduct on the 
part of defendants. Indeed, there has not even 
been the remote suggestion (let alone any 
evidentiary showing) [that] black college 
students now in Tennessee have been denied, 
on account of race, admission to professional 
school or have been deprived of an equal oppor­
tunity to prepare in college for application 
to professional school.

Id. at 13 (emphasis in original).
At oral argument before the District Court on August 13, 1984,

Assistant Attorney General Reynolds confirmed that in his view an
evidentiary hearing was required to determine, with respect to
several provisions of the settlement, whether any individual black
student had been discriminated against and whether Tennessee's
dual system of public higher education had been dismantled.
Transcript of Aug. 13, 1984 (docket no. 152) at 4—11. The Court
advised Mr. Reynolds, however, that the issues he had framed did
not warrant an evidentiary hearing:

My family moved to this State before 1800 and 
I grew up in Coffee County and I watched black 
children bussed from Beech Grove which is on 
the northwest corner of the county to 
Tullahoma where I lived to the southeast cor­
ner of the county —  40 miles to come to high 
school. The only black high school in the 
county and to say that those effects have been 
dismantled today when Tennessee State Uni­
versity is 97% black and the University of 
Tennessee is 4% black is ridiculous. To say 
it requires proof offends the intelligence of 
everybody in this room.

Id. at 39-40.
[B]y any objective assessment, General, the 
previously imposed remedies have been inef­
fectual and other remedies are now neces­
sary.... [W]e've come up with something now 
that is specific in nature that once again in 
the language of Green holds out real hope and

24



promise to effectively dismantle a situation 
in Tennessee that none of us can be proud of 
but to put in place something that all of us 
can be proud of.

Id. at 47.
Although the Court adjourned the matter on August 13 in the 

hope that the parties might yet be able to reach a settlement with 
the Department, further discussions were again unsuccessful. 
Accordingly, on September 25, 1984, the District Court approved 
the Stipulation of Settlement. Docket no. 164. Also on September 
25, 1984, the Court issued a memorandum setting forth its reasons 
for approving the Stipulation. Docket no. 163; Geier v . Alexander, 
593 F.Supp. 1263 (M.D. Tenn. 1984). The Court stated as follows:

One of the remedial measures proposed is 
designed to increase the number of black pro­
fessionals in Tennessee, and the number of 
blacks in the professional schools. For five 
years, beginning in 1985, 75 black sophomore 
students will be selected for a professional 
career track to include counseling, guidance 
and early admission if minimum admission 
standards are met. The Justice Department 
objects to this program, insisting that it is 
beyond the remedial power of the Court. It 
argues that there must be a showing that the 
students selected for the program are victims 
of the racial discrimination challenged in 
this case. It would expand the holding of the 
Memphis Firefighters case to school deseg­
regation cases and require "victim specifi­
city." [citations omitted]

This Court is conscious of its role in the 
governmental scheme. Neither in this case, 
nor in any other, does this Court intend to 
invade the legislative prerogative nor engage 
in social engineering. The proprosed measures 
do neither. They are part of a comprehensive 
remedial plan addressing a recognized but 
perverse problem. While this Court is not 
convinced that "victim specificity" is the 
standard applicable in cases involving public

25



education, it concludes that, even if appli­
cable, the standard is not as narrowly circum­
scribed in the context of public education as 
compared to its application in employment 
cases under Title VII. Public education re­
presents a basic foundation of our society. 
Accordingly, the Court must consider a 
much broader range of factors in evaluating 
the (1) presence and effect of racial dis­
crimination in a state's university system and 
(2) the appropriate methods by which to eradi­
cate its influence. Further, the standard of 
victim specificity is not as exacting when 
considering the effects of past and present 
racial discrimination as it impacts on persons 
attending or who will attend public colleges 
and universities as compared to the employees 
at a particular work location. This Court need 
not trace a precise nexus between a specific 
black child and particular acts of racial dis­
crimination to conclude that the individual 
has suffered the effects of racial discrimina­
tion. Rather, it is sufficient for this Court 
to base its remedial order on a finding that 
members of the defined group have suffered the 
effects of specific acts of discrimination, 
[citations omitted]

This Court rejects the position of the 
Justice Department that an evidentiary record 
must be compiled to prove that the black youth 
of Tennessee are victims of discrimination and 
that remedial programs will benefit them spe­
cifically and exclusively. As Justice 
Burger noted in Milliken v. Bradley, 433 U.S. 
267, 287, 97 S.Ct. 2749, 2760, 53 L.Ed.2d 745 
(1977) (Milliken II), a court may consider 
both educational and cultural forces present 
in society in reaching the conclusion that a 
certain group of children have been isolated 
from society and subjected to disparate and 
discriminatory treatment. In dealing with the 
broad and paramount issue of public education, 
this Court takes judicial notice of the long 
history of social, economic and political op­
pression of blacks in Tennessee —  a history 
marked by years of slavery followed by years 
of Jim-Crow laws. It is the past and present 
state of Tennessee's universities that the 
Court identifies as the specific instance of 
racial discrimination; its effects are perva­
sive throughout the black community, affect­
ing practically all black men, women, 
and children in the state.

26



A classification that aids persons iden­
tified as members of a victim group is permis­
sible provided there has been some judicial, 
administrative or legislative finding of con­
stitutional or statutory violations. Bakke, 
438 U.S. at 307 , 98 S . Ct. at 2757. At an 
earlier stage of this case, Judge Gray found 
an unconstitutional de jure segregation in 
Tennessee higher education. Sanders v. 
Ellington, 288 F.Supp. 937, 942 (M.D.Tenn. 
1968). This proposed decree not only recog­
nizes the existence of residual effects, it 
recognizes that previous remedial measures 
have not succeeded in removing such effects. 
Such a finding creates a compelling interest 
in vindicating the legal rights of the vic­
tims, even if it requires the extension of 
certain preferences formulated to aid the in­
dividuals overcome the effects of the past 
unlawful acts. Id. This Court is empowered, 
if not compelled, to implement a remedy formu­
lated to reverse the effects of such treat­
ment. Geier v. University of Tennessee, 597 
F . 2d 1056, 1065 (6th Cir. 1979). This Court 
is convinced that its order today is tailored 
to redress the nature and extent of violations 
against specific victims of racial discrimi­
nation. [citations omitted]

Docket no. 163, pp 2-4; 593 F.Supp. at 1264-66.
The goal of this society, at least since 

1954, has been the elimination of state im­
posed racial segregation. We have been striv­
ing for the day when, as Rev. King described 
it so eloquently, people would be recognized 
for the content of their character rather than 
the color of their skin. We must move toward 
the day when schools are not recognized as 
"black schools" or "white schools" but 
when the State of Tennessee operates, and 
the taxpayers of Tennessee fund, just 
"schools" -- and hopefully, those the best we 
are able to provide.

27



A desegregation remedial plan is to be judged 
by its effectiveness. Swann, supra, 401 U.S. 
at 25, 91 S.Ct. at 1280. This Court has 
retained jurisdiction to effectuate the de­
cree and to modify the remedies if found to be 
inefficacious. The parties in this case, 
through long and serious negotiations, have 
come up with a series of proposed additional 
requirements that should have a salutary ef­
fect. The numerical objectives for faculty 
and student body racial mix are clearly de­
fined to be objectives and not quotas. There 
is nothing in the decree which limits either 
race participation. Guideposts and goals are 
valuable when progress is to he measured. The 
establishment of a goal or objective encour­
ages effort toward an end. Whether or not the 
goal is reached or exceeded will only be one 
of many indicia of the good faith efforts of 
all the parties to achieve a unitary system, 
if that issue is ever again in question.
The ultimate goal is not any ideal ratio or 

mix of black and white students or faculty. 
The goal is a system of higher education in 
Tennessee tax-supported colleges and univer­
sities in which race is irrelevant, in which 
equal protection and equal application of the 
laws is a reality. On the road to achieving 
this state of color-blindness, there must be 
color-consciousness to overcome the residual 
effects of past color-based discrimination. 
The proposed settlement decree is not illegal, 
and it offers promise of more effective reme­
dies in attacking a seemingly Gordian problem.

Id. at 7-8; 593 F.Supp. at 1267.

28



ARGUMENT

I

THE DISTRICT COURT GAVE FULL AND FAIR CON­
SIDERATION TO THE JUSTICE DEPARTMENT'S OBJEC­
TIONS TO THE STIPULATION OF SETTLEMENT

In order to evaluate the merits of the argument advanced in 
Point I of the Justice Department's brief (App. Br. at 18-25), it 
is important to place the Department's role in the case at this 
juncture in proper perspective. Although the Department has been 
in the case for many years as a plaintiff-intervenor, it did not 
join the Richardson plaintiff-intervenors, the original plain­
tiffs and the McGinnis plaintiff-intervenors in seeking any fur­
ther relief to desegregate Tennessee's public institutions of 
higher education.— ^ Had the Department filed a motion for further 
relief, and had it subsequently determined that the settlement did 
not provide sufficient relief and was inadequate to achieve 
desegregation, the Department would have been perfectly free to 
press forward with its own motion. The other plaintiff groups and 
the State could not, by settling amongst themselves, deprive the 
Government of its right to a hearing on its motion.

Similarly, if the United States was a defendant in this case, 
and if the plaintiffs were seeking some sort of relief from the 
United States, it goes without saying that the plaintiffs could not

30/ Indeed, it never responded on the merits to any of the motions 
for further relief filed between 1981-83 by the other three 
plaintiff groups.

29



obtain that relief merely by settling with the State of Tennessee. 
A party defendant is entitled, "insofar as a remedy is sought 
against that party," to a trial at which the plaintiffs must prove 
their case against that party. United States v. City of Miami, 664 
F . 2d 435, 436 (5th Cir. 1981) (en banc). See also In re Beef 
Industry Antitrust Litigation, 607 F .2d 167, 172-73 (5th Cir. 
19 7 9 ) ; Utility Contractors Ass'n of New Jersey, Inc. v . Toops, 507 
F .2d 83, 85 (3rd Cir. 1974).

However, in this case the Department is neither a dissatisfied 
movant for further relief nor a defendant against whom relief has 
been imposed without trial. It is merely a plaintiff-intervenor 
which used its historic status as such to voice objections to a 
settlement between the other parties to the lawsuit. In this 
context its burden was no different than that of any intervenor 
seeking to block approval of a consent decree which the District 
Court has found to be presumptively fair, adequate and lawful: the 
objector bears a "heavy burden of demonstrating that the decree 
is unreasonable." Williams v . Vukovich, 720 F . 2d 909, 921 (6th 
Cir. 1983); Stotts v. Memphis Fire Department, 679 F . 2d 541, 554 
(6th Cir. 1982) , rev' d on other grounds sub nom. Firefighters Local 
Union No. 1784 v. Stotts, ___ U.S. ___, 81 L.Ed.2d 483 (1984).

The District Court below gave the Justice Department ample 
opportunity to meet this burden. It heard oral argument by a 
representative of the Department on July 30, 1984 and again on 
August 2, 1984. It then asked the Department to submit a written 
memorandum detailing its objections. And it heard oral argument

30



yet a third time, on August 13, 1984, to permit the Department to 
explicate its position more fully. The Department's represen­
tatives had numerous opportunities below to spell out their 
objections to the Stipulation of Settlement.

Although the Department now claims that the District Court 
should also have conducted an evidentiary hearing, it did not make 
any proffer below warranting such a hearing. The Department never 
advised the District Court of any witness it wished to call or any 
item of evidence it wished to introduce in order to help meet its 
heavy burden of proving that the provisions of the decree, and 
particularly the pre-professional training program of II(N), 
were unreasonable. Instead, it based its argument largely upon a 
constitutional theory: the claim that today's black students 
cannot obtain relief to desegregate professional school enroll­
ment unless they have been individually and personally discrimi­
nated against. The District Court gave due consideration to the 
argument, heard it fully, and rejected it as a matter of law.

To be sure, Mr. Reynolds did ask for a hearing during oral 
argument below on August 13, 1984. However, he never indicated in 
the slightest just what he planned to do at such a hearing. 
Instead, he seemed to believe that his objection alone required the 
plaintiff-movants to proceed to prove their case against the 
defendants —  even though the defendants had settled with the 
plaintiff-movants and were not demanding any such hearing. His 
confusion on this point is best illustrated by the following 
colloquy with the District Court during the argument:

31



THE COURT: Are you suggesting, General, that 
when this Court has had [this case] under con­
sideration since 1968 and has had annual re­
ports since 1976 and has had freguent hearings 
as well as chamber conferences and has 
reviewed pleadings and briefs and reports 
for a period of 16 years, that there is no 
basis in the record for making a determination 
that the State has not effectively dismantled 
the system and that at this point it is appro­
priate to attempt additional remedies or other 
remedies?
MR. REYNOLDS: I am suggesting, Your Honor, 
that in the absence of a hearing that provides 
the State the opportunity to present whatever 
evidence it wishes to present on the question 
of full compliance with the outstanding decree 
that, indeed, this Court does not have the 
authority —
THE COURT: The State ought to have that 
opportunity, General Reynolds. Let me tell 
you that in this case before this decree could 
be signed by [State] Attorney General Cody, it 
had to be signed off on by Governor Lamar 
Alexander and the Controller of the Treasury, 
William Snodgrass and has also been signed off 
on by the State Board of Regents, by the 
Tennessee Higher Education Commission, by the 
University of Tennesee Board of Trust every 
governing body of the State —  the Attorney 
General of the State, the Governor of this 
State, the Comptroller of this State -- have 
all said okay, and you're saying that they 
ought to have the right to contest it. They 
don't want to contest it.
MR. REYNOLDS: Well, what I'm saying at this 
juncture, Your Honor, is that there's also 
another interested party in this liti­
gation —  the United States. The United 
States has not signed off on this decree. 
The interest of the United States, it seems to 
me, is as real as the interest of the other 
parties in this litigation and what I am sug­
gesting —
THE COURT: If you confine your objection to 
the United States, I'll hear you, Mr. 
Reynolds. But I don't want you objecting on 
behalf of the State. They don't want to 
object.

Transcript of Aug. 13, 1984, docket no. 152, pp. 8-10.

32



As noted at pp. 29-30, supra, the Department's position in the 
case did not give it the power to force a trial between the movant 
plaintiff groups and the defendants. Although the Department was 
entitled to have its objections heard, its status "[did] not 
require ... [its] consent as a condition to any voluntary com­
promise of the litigation." Kirkland v. New York State Department 
of Correctional Services, 711 F.2d 1117, 1126 (2d Cir. 1983). The 
Department —  not the other parties —  had the burden of making a 
record to prove the validity of its objections to the decree. The 
Department had access to the same Desegregation Progress Reports 
relied upon by the other parties, and had also taken discovery in 
the weeks preceding the settlement (see United States' District 
Court Memorandum, docket no. 143, at 4 ) . If it had made any proffer 
of evidence relevant to proceedings, we have no doubt that the Dis­
trict Court would have heard such evidence.

It must be remembered that this was not the settlement of a 
relatively new case which had not yet resulted in a determination 
of liability or the granting of relief. The proceedings below 
dealt with issues which had been before the District Court since 
1968 and had been the subject of numerous prior hearings and 
judicial opinions. Most importantly, the District Court was fully 
familiar with the defendants' past several Desegregation Progress 
Reports and therefore knew only too well the strength of the 
plaintiff-movants' case for further relief. The Court was hardly 
required to subject the settling parties to a full trial on the 
merits under these circumstances. Even where a case is being 
settled in the first instance, the District Court need not "deter-

33



mine the merits of the controversy or the factual underpinning of
the legal authorities advanced by the parties." Williams v. 
Vukovich, supra, 720 F .2d at 921; Stotts v. Memphis Fire Depart­
ment, supra, 679 F . 2d at 552; see also Airline Stewards and 
Stewardesses Assoc, v. American Airlines, 573 F .2d 960, 963-64
(7th Cir. 1978); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 
1977); Flinn v. FMC Corporation, 528 F .2d 1169, 1172-73 (4th Cir. 
1975) ; City of Detroit v . Grinnell Corporation, 495 F. 2d 448, 462- 
64 (2d Cir. 1974 ) .

The United States Department of Justice did not claim to have 
any evidence which would prove that the relief provided by the 
consent decree was either unreasonable or unlawful. Under these 
circumstances, the District Court did not abuse its discretion by 
rejecting the Department's objections after full briefing and oral 
argument. Stotts v. Memphis Fire Department, supra, 679 F.2d at 
555. See also United States v. Allegheny-Ludlum Industries, Inc., 
517 F .2d 826, 839 (5th Cir. 1975).

II

THE PRE-PROFESSIONAL TRAINING PROGRAM OF THE 
STIPULATION OF SETTLEMENT IS AN APPROPRIATE,
REASONABLE AND LAWFUL RESPONSE TO SEVENTEEN 
YEARS OF FAILURE TO ELIMINATE THE VESTIGES OF 
STATUTORY SEGREGATION IN TENNESSEE'S PUBLIC 
PROFESSIONAL SCHOOLS

The position advanced by the Justice Department flies in the 
face of many years of constitutional jurisprudence of the Supreme 
Court and this Court in school desegregation cases. Tennessee is 
a de jure segregation state which by statute denied blacks the 
opportunity to attend its public professional schools and in­

34



deed made it a crime to allow blacks into those schools. See pp. 
2-3 n. 1, supra. Accordingly, Tennessee has an "affirmative duty 
to take whatever steps might be necessary to convert to a unitary 
system in which discrimination would be eliminated root and 
branch." Green v . County School Board, 391U.S 430, 437-38 (1968); 
Keyes v. School District No. 1, 413 U.S. 189, 200 & n. 11, 213 
(1973). Tennessee must "eliminate ... all vestiges of state- 
imposed segregation" from its public professional schools. 
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 
(1971); Keyes v. School District No. 1, supra, 413 U.S. at 200; 
Kelley v . Metropolitan County Board of Education, b87F.2d814, 816 
(6th Cir. 1982); Haycraft v. Board of Education of Jefferson 
County, Kentucky, 585 F .2d 803, 805 (6th Cir. 1978); Brinkman v. 
Gilligan, 583 F.2d 243, 257-58 (6th Cir. 1978), aff'd sub nom. 
Dayton Board of Education v. Brinkman, 443 U.S. 526, 537 (1979).

It is both the law of this Circuit and the law of this case 
that "the Green requirement of an affirmative duty applies to 
public higher education as well as to education at the elementary 
and secondary school levels." Geier v. University of Tennessee, 
597 F .2d 1056, 1065 (6th Cir. 1979), cert, denied, 444 U.S. 886 
( 1979) . Tennessee has for many years been under an obligation "to 
eliminate all vestiges of the system of state-imposed segregation 
... in public higher education." Id. at 1066.

As we have demonstrated in the Statement of Facts (pp. 9-21, 
supra), it is painfully apparent that Tennessee has not eliminated 
the vestiges of segregation with respect to public professional 
education. Black enrollment in the professional schools which 
once barred blacks as a matter of state law is still pitifully low.

35



There is, of course, a presumption in a system with a history of 
segregation that schools which are "substantially dispropor­
tionate in their racial composition" are the result of the con­
tinuing vestiges of such segregation. Swann v. Charlotte- 
Mecklenburg Board of Education, supra, 402 U.S. at 26.

Tennessee did not even begin affirmative efforts to address 
this problem until the 1970's, many years after this case was 
filed, and even those efforts have proved ineffectual. The measure 
of such efforts must be "the effectiveness ... of the actions in 
decreasing ... the segregation caused by the dual system." Dayton 
Board of Education v. Brinkman, supra, 443 U.S. at 538. The data 
establishes that efforts undertaken by Tennessee to desegregate 
public professional education prior to entry of the 1984 Stipula­
tion of Settlement have been grossly ineffective.

Given Tennessee's dismal failure to eliminate the vestiges of 
de jure segregation, the State was required to do whatever "pro­
mises realistically to work, and promises realistically to work 
now, " to increase black enrollment in its state-supported profes­
sional schools. Green v. County School Board, supra, 391 U.S. at 
439 (emphasis in original); Swann v. Charlotte-Mecklenburg 
Board of Education, supra, 402 U.S. at 13, 20, 31. Accordingly, 
the State proposed and the plaintiff-movants accepted a plan 
"aptly tailored to remedy the consequences of the constitutional 
violation." Milliken v. Bradley, 433 U.S. 267, 287 (1977) 
(Milliken II) . In approving that plan, the District Court properly 
deferred to the expertise of State authorities "who must be 
presumed to be familiar with the problems and the needs of a system 
undergoing desegregation." Ibid.

36



The Justice Department's claim that the pre-professional 
training program of the Stipulation of Settlement violates the 
doctrine of "victim-specificity" is, on this record, ridiculous. 
The Supreme Court has explicitly held that in a State which 
separated the races by statute at the time of Brown v. Board of 
Education, 347 U.S. 483 (1954), today's black students do not "bear 
the burden of proving the elements of de jure segregation as to 
each and every school or each and every student within the school 
system." Keyes v. School District No. 1, supra, 413 U.S. at 200. 
It is obvious from the enrollment and degree-granting data that 
blacks as a class are today still suffering from the effects of 
-statutory segregation with respect to public professional educa­
tion in Tennessee. This state of affairs violates the constitu­
tional right of every black individual to attend a non-discrimina- 
tory school system. Accordingly, Tennessee's blacks are entitled 
to class relief to eliminate the vestiges of a pernicious practice 
which was directed against them and victimized them as a class. 
Keyes v. School District No. 1, supra; Swann v. Charlotte- 
Mecklenburg Board of Education, supra, 402 U.S. at 15-16; United 
States v. Jefferson County Board of Education, 372 F .2d 836, 864- 
70 (5th Cir. 1966); Potts v. Flax, 313 F .2d 284, 289 (5th Cir. 
1963). "Federal courts need not, and cannot, close their eyes to 
inequalities, shown by the record, which flow from a longstanding 
segregated system." Mi 11iken v. Bradley, supra, 433 U.S. at 283 .

The Justice Department's reliance upon the first Milliken 
decision— ^ to support its theory of "victim-specificity" is 
totally misplaced. Milliken I merely stands for the proposition

31/ Milliken v. Bradley, 418 U.S. 717 (1974)(Milliken I ).
37



that relief in school desegregation cases must be defendant- 
specific; i. e . , it must be imposed upon the governmental entities 
which actually practiced segregation. In the words of Milliken I, 
418 U.S. at 746, ”[d]isparate treatment of white and Negro students 
occurred within the ... [Tennessee public higher education] sy­
stem, and not elsewhere, and on this record the remedy must be 
limited to that system." Id. at 754-55 (concurring opinion of 
Justice Stewart). The remedy provided by II(N) of the Stipula­
tion of Settlement is, of course, limited to Tennessee's
system of public higher education. That is all Milliken I

32/requires, and that requirement has been met.—
The Justice Department's reliance upon University of 

California Regents v. Bakke, 438 U.S. 265 (1978), is equally
misplaced. In Bakke there had been no judicial, legislative or 
administrative determination that the university had ever engaged 
in discriminatory conduct. This fact was repeatedly emphasized in 
the controlling opinion of Justice Powell. 438 U.S. at 296 n. 36, 
300, 301, 305. Justice Powell fully recognized that once a finding 
of unconstitutional discrimination has been made, "the govern­
mental interest in preferring members of the injured groups at the 
expense of others is substantial," _id. at 307. In this case,

32/ Because Tennessee practiced statewide statutory segregation, 
relief must be system-wide and cannot be limited to only certain 
schools or certain parts of the state. See Kelley v . Metropolitan 
County Board of Education, supra, 687 F.2d at 815; N .A .A .C .P . v. 
Lansing Board of Education, 559 F .2d 1042, 1045 (6th Cir. 1977); 
Newburg Area Council, Inc, v. Board of Education of Jefferson 
County, Kentucky, 510 F .2d 1358, 1359, 1361 (6th Cir. 1974). The 
doctrine of "incremental segregative effect" as a limitation upon 
the granting of relief, relied upon by the Justice Department (App. 
Br. at 32-33, 39-40), is totally irrelevant in cases of system- 
wide statutory segregation.

38



it goes without saying that Tennessee has been found by the Dis­
trict Court and this Court to have engaged in segregation with 
respect to public higher education. The record amply demonstrates 
that the effects of that discrimination are still present at all 
levels of the State's higher education system, and especially at 
the professional school level. Nothing in Bakke prevents imple­
mentation of a plan to eliminate such vestiges of segregation.

All things being equal, it would perhaps be better if the pre­
professional training program established by the Stipulation of 
Settlement were not necessary. "But all things are not equal in 
a system that has been deliberately constructed and maintained to 
impose racial segregation. The remedy for such segregation ... 
may impose burdens on some." Swann v. Charlotte-Mecklenburg 
Board of Education, supra, 402 U.S. at 28. Such burdens are 
perfectly appropriate where necessary to eradicate the continuing
effects of state-imposed segregation in public higher educa-
. . 33/tion.—

Apart from its misplaced reliance upon Milliken I and Bakke, 
the Justice Department's argument seems to focus largely upon 
employment discrimination law -- or, to be more precise, upon 
developments which it hopes will occur in employment discrimi­
nation law. See Ap. Br. at 17, 50. To the extent that such cases 
are at all relevant, the law of this Circuit clearly does not favor

33/ The present administration of the Justice Department seemed 
to recognize this principle in the'consent decree in United States 
v. State of Louisiana, Civil Action No. 80-3300 (E.D. La. Sept. 
8, 1981), approved, 527 F.Supp. 509 (E.D. La. 1981)(three-judge 
court). Part II, Section 3 of that decree provides as follows:

[T]he state shall establish a scholarship pro­
gram to assist those institutions that offer 
professional programs in medicine, dentistry, 
and veterinary medicine to increase the level

39 [Footnote 3_3/ continued on next page]



the Department's position. Vanguards of Cleveland v. City of 
Cleveland, 753 F .2d 479 (6th Cir. 1985); Van Aken v. Young, 750
F.2d 43 (6th Cir. 1984); Wygant v. Jackson Board of Education,
746 F .2d 1152 (6th Cir. 1984), cert, granted, ___ U.S. ___, 53
U.S.L.W. 3739 (April 15, 1985); Bratton v. City of Detroit, 704 
F.2d 878 ( 6th Cir. 1983) ^ See also Fullilove v. Klutznick, 448
U.S. 448, 484 (1980); United Steelworkers of America v . Weber, 4 4 3 
U.S. 193, 208 (1979). However, even if the Department succeeds in 
changing employment discrimination law to encompass its theory of 
"victim-specificity," such a development would be irrelevant to 
this school desegregation case.

Even assuming arguendo that in an employment case there may 
occasionally be specific "victims" of discrimination still in the 
work force, or in a particular plant, company or industry, who can 
be granted individual relief, such narrow concepts of "victim-

33/ Continued
of other-race participation therein. Eligi­
ble students will receive a $5,000 scholarship 
per year. The program will have the potential 
of graduating a total of 108 other-race doc- 
tors/dentists and 30 other-race doctors of 
veterinary medicine at a total cost of 
$2,760,000 .

Since Louisiana's schools of medicine, dentistry and veterinary 
medicine are all predominantly white, id. at Parts 1(C) and (D), 
these "other race" scholarships are reserved exclusively for 
blacks and will provide opportunities for impoverished blacks to 
obtain professional degrees in circumstances where equally needy 
whites may not. It is impossible to reconcile this consent 
decree, signed by Mr. Reynolds, with the position taken by the 
Department in this case.
34/ The Department appears to concede as much. See App. Br. at 
27-28 n .41 and 46 n. 51.

40



specificity" are wholly inapplicable to school desegregation 
cases. For in a system of education the enrollment period of each 
student is a relatively brief number of years, after which the 
student leaves the system forever. Because of the cyclical nature 
of educational systems, it is extremely difficult if not impossi­
ble to provide meaningful relief to victims of past discrimination 
while they are still in the system. The only effective relief that 
can be granted is to provide today's black students with an 
educational system in which they will not be subjected to the 
continuing vestiges of segregation. That is "the only adequate 
redress for a previously overt system-wide policy of segregation 
directed against Negroes as a collective entity." United States 
v. Jefferson County Board of Education, supra, 372 F .2d at 869.

The Justice Department's argument in this case is truly 
insidious, because it frames the issue in a manner which precludes 
any effective relief whatsoever. The real "victims," as the 
Department defines the term,— ' are black individuals who attended 
Tennessee's public colleges and universities in the past and have 
long since left the State's system of higher education. It is 
obviously far too late to provide any measure of meaningful relief 
as to them. Today's black students, even though enrolled in a 
system which clearly suffers from the vestiges of segregation, are 
deemed not to be victims unless they can prove some specific act 
of discrimination committed against each one of them individually. 
Accordingly, even though the system is still riddled with the 
effects of segregation, nothing can be done to remedy the situa­
tion. Nearly a century of statutory segregation in Tennessee's

35/ See, e,g., App. Br. at 38-39.
41



public institutions of higher education thus becomes nothing more 
than an unfortunate incident in our history which the courts are 
powerless to remedy.— ^

We do not believe that a judicial system which decided Brown 
v. Board of Education, supra, Green v. County School Board, supra, 
Swann v. Charlotte-Mecklenburg Board of Education, supra, Keyes v. 
School District No. 1, supra, and the many subsequent cases relying 
upon them, intended any such result. The Justice Department's 
argument is nothing more than a thinly veiled effort to undermine 
these historic precedents and render it impossible to eliminate 
the vestiges of de jure segregation "root and branch." The 
District Court properly rejected the argument, as so should this 
Court. There is nothing illegal, unconstitutional or unreasonable 
about the Stipulation of Settlement, and the decision below 
approving it should be affirmed.

36/ As Court of Appeals for the District of Columbia has noted, 
"[p]erhaps the most serious problem in [desegregating higher 
education] is the lack of statewide planning to provide more and 
better trained minority group doctors, lawyers, engineers and 
other professionals." Adams v. Richardson, 480 F .2d 1159, 1164- 
65 (D.C. Cir. 1973)(en banc). See p. 13, supra, citing the Justice 
Department's reliance upon this passage of Adams in this case in 
1974 .

42



CONCLUSION

For the above-stated reasons, the order of the District Court 
approving the Stipulation of Settlement should be affirmed.

Respectfully submitted,

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37201 
[615] 244-3988

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT, III 
JOEL BERGER 
THEODORE M. SHAW 

16th Floor 
99 Hudson Street 
New York, New York 10013 
[212] 219-1900

Attorneys for Plaintiff/Intervenors- 
Appellees Raymond Richardson, Jr., 
et al.

43



CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing 
Brief of Plaintiff/Intervenors-Appellees Raymond Richardson, 
Jr., et al. has been forwarded via first class mail/ postage 
prepaid, to R. Stephen Doughty, Esq., Deputy Attorney General of 
the State of Tennessee, 450 James Robertson Parkway, Nashville, 
Tennessee 37219; John L. Norris, Esq., Hollins, Wagster and 
Yarbrough, P.C., 8th Floor, Third National Bank Building, Nash­
ville, Tennessee 37219; Aleta G. Arthur, Esq., 31 Wentworth 
Street, Charleston, South Carolina 29401; George E. Barrett, Esq., 
217 Second Avenue North, Nashville, Tennessee 37201; Joe B. Brown, 
Esq., United States Attorney, 879 U.S. Courthouse, Nashville, 
Tennessee 37203; and Walter W. Barnett, Esq., Deputy Chief, 
Appellate Section, Civil Rights Division, U.S. Department of 
Justice, Washington, D.C. 20530, this 9th day of August, 
1985 .

Attorney for Plaintiff/Intervenors- 
Appel lees Raymond Richardson, Jr., 
et al.



APPENDIX A

Black Enrollment in the Professional Schools 
of Tennesee's Public Higher Education System (1977-84)



APPENDIX A

Black Enrollment in the Professional Schools 
of Tennesee's Public Higher Education System (1977-84)*/

Medical Schools __________________ ______ Dental_______  _____ Pharmacy

urais ETSU Total Med.

% % % %
Total Black Black Total Black Black Total Black Black Total Black Black Total Black Black

1977 718 9 1.3 NA NA NA 718 9 1.3 562 6 1.1 336 6 1.8

1978 725 13 1.8 24 0 0 749 13 1.7 556 5 0.9 323 9 2.8

1979 718 12 1.7 57 2 3.5 775 14 1.8 550 3 0.5 327 12 3.7

1980 759 12 1.6 104 4 3.8 863 16 1.9 586 5 0.9 320 11 3.4

1981 769 11 1.4 146 6 4.1 915 17 1.9 555 6 1.1 313 9 2.9

1982 770 4 0.5 199 8 4.0 969 12 1.2 489 8 1.6 283 4 0.3

1983 762 10 1.3 242 11 4.9 1004 21 2.1 411 7 1.7 269 9 3.4

1984 741 9 1.2 223 15 6.7 964 24 2.5 390 9 2.3 221 10 4.5

_ y
table

Sources: Desegregation Progress 
one of each report.

Reports of 1979, 1982 and 1984 (docket nos. 17 and 55; docket no. 174, supplemental record),

A - 1 [Continued on next page]



APPENDIX A (Continued)

vetenriary neujLcine

UT MSU Total Law Grand Total

Total Black
%

Black Total Black
%

Black Total Black
%

Black Total Black
%

Black Total Black
%

Black

1977 99 0 0 630 23 3.7 545 17 3.1 1175 40 3.4 2890 61 2.1

1978 179 1 0.6 609 14 2.3 542 21 3.9 1151 35 3.0 2958 63 2.1

1979 213 , 1 0.5 616 17 2.8 563 29 5.1 1179 46 3.9 3044 76 2.5

1980 212 1 0.5 552 1] 2.0 571 29 5.1 1123 40 3.6 3104 73 2.4

1981 199 0 0 576 9 1.6 560 35 6.3 1136 43 3.9 3118 76 2.4

1982 171 0 0 605 9 1.5 578 46 8.0 1183 55 4.7 3095 76 2.5

1983 175 0 0 571 28 4.9 564 51 9.0 1135 79 7.0 2994 116 3.9

1984 180 0 0 532 30 5.6 566 47 8.3 1098 77 7.0 2853 120 4.2

A - 2



APPENDIX B

Black 
Tennessee'

Recipients of Professional Degrees from 
s Public Higher Education System (1980-84)



APPENDIX B

Black Recipients of Professional Degrees from 
Tennessee's Public Higher Education System (1980-84)V

I7TSU MSU
(Medical)_______  ______ UTCHS_________  _______ OT___________ _______ (Law)______  TOTAL

Total Black
%

Black Total Black
%

Black Total Black
%

Black Total Black
%

Black Total Black
%

Black

1980-81 NA 328 2 0.61 256 4 1.56 147 2 1.36 731 8 1.09

1981-82 22 0 0 361 7 1.94 254 2 0.79 136 9 6.62 773 18 2.33

1982-83 26 0 0 346 2 0.58 247 3 1.21 162 8 4.94 781 13 1.66

1983-84 57 1 1.75 310 3 0.97 247 4 1.62 151 9 5.96 765 17 2.22

*/ Source: Desegregation Progress Report of 1984 (docket no. 174, supplemental record), table one.

B - 1