Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 81-5370

ROBERT W. KELLEY, et al.,
Plaintiff5-Appellants,

1 \V .
METROPOLITAN COUNTY BOARD OF EDUCATION, et al. ,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37201

JACK GREENBERG 
JAMES M. NABRIT, III 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



f »

TABLE OF CONTENTS
Page

Table of Authorities .............................  _ , .
I. The Board Misstates the Proceedings

and the Record Below ...........................  2
A. The 1971 Remedy and Its Implementation ......  3
B. The Rulings of the Court Below ............... 10

II. The Board Erroneously Ignores That
the Duty of the District Court 
and School Authorities Was to 
"'Make Every Effort to Achieve 
the Greatest Possible Degree of 
Actual Desegregation, Taking Into 
Account the Practicalities of the
Situation 1 " 15

III. The Board's 1981 Plan Violates the
Constitution .................................... 19

A. The Use of a 15% Either Race
Standard and the Failure to
Use Racial Ratios .......................... 19

B. The Claim of Impingement on the
Educational Process as a Justifi­
cation for Resegregation ..................  20

C. Imposition of a Disproportionate
and Inequitable Burden of One-Way
Busing on Black Middle School
Students .................................... 23

D. The Failure to Develop Pearl High
School as a Comprehensive High
School .....................................  24

E. Estoppel of the Appeal ........................  26
Conclusion ..............................................  27

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* t

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Dougherty County Board of
Education, 609 F.2d 225 (5th Cir. 1980) .............  21

Brinkman v. Gilligan, 583 F.2d 243
(6th Cir. 1978) ....................................... 21

Brown v. Board of Education, 349
U.S. 294 (1955) ....................................... 21 , 27

Columbus Board of Education v. Penick,
443 U.S. 449 (1979) .............................  15, 17, 18 , 27

Cooper v. Aaron, 358 U.S. 1 (1957) ..................... 21
Davis v. School Comm'rs of Mobile County,

402 U.S. 33 (1971) .................................  15, 18 , 27
Dayton Board of Education v. Brinkman, 443

U.S. 526 (1979) ....................................... 16 , 27
Green v. School Board of New Kent County,

391 U.S. 430 (1968) ................................  16 , 17 , 18
Haycraft v. Board of Education of Jefferson 

County, Kentucky, 585 F.2d 803 
(6th Cir. 1978), cert, denied, 443
U.S. 915 (1979) ....................................... 22

Higgins v. Board of Education, 508 F.2d
779 (6th Cir. 1974) ................................  21 , 22 , 24

Hutto v. Finney, 437 U.S. 678 (1978) ................... 20
Jackson High School v. Ambach, 598

F. 2d 705 (2d. Cir. 1979) ............................  22
James v. Stockham Valves & Fittings Co. ,

559 F.2d 310 (5th Cir.) cert, denied,
434 U.S. 1034 (1977) .................................  24

Johnson v. Board of Education of the City
of Chicago, 604 F.2d 504 (7th Cir. 1979) ............  22

Martin v. Charlotte-Mecklenburg Board of 
Education, 475 F. Supp. 1318 (W.D.N.C.
1979), aff'd on other grounds, 626 F.2d 
1165 (4th Cir. 1980), cert, denied, 39
U.S.L.W. 3743 (1981) .................................  16-17 , 18 ,

19, 24
-ii-



t

Cases: Page

Monroe v. Board of Commissioners, 391 U.S 450 (1968) ..............................
NAACP v. Lansing Board of Education,

559 F.2d 1042 (6th Cir.), cert, denied,434 U.S. 997 (1977) ..........................
Pasadena City Board of Education v. Spangler,427 U.S. 424 (1976) ........................
Raney v. Board of Education, 391 U.S. 443 (1968)
Spangler v. Pasadena City Board of Education,

611 F.2d 1239 (9th Cir. 1979) ......
Swann v. Charlotte-Mecklenburg Board of 

Education, 402 U.S. 1 (1971) .......

United States v. Scotland Neck Board of 
Educ., 407 U.S. 484 (1972) ............

Wright v. Council of City of Emporia, 407 U.S. 451 (1972) ....................

3, 15, 18, 19, 
20, 26, 27

21

Fourteenth Amendment 26

Crain & Mahard, "Desegregation and Black 
Achievement," 42 Law & Contemporary 
Problems 1978 (Spring and Summer) at Abstract .............

-iii-



r

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 81-5370

ROBERT W. KELLEY, et al.,
Plaintiffs-Appellants,

v .
METROPOLITAN COUNTY BOARD OF EDUCATION, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

Plaintiffs-appellants Robert W. Kelley, et al., reply, 
as follows, to several points made in the brief for defend- 
ants-appellees Metropolitan County Board of Education, et 
al. (hereinafter "Defendants' Brief").

Initially, however, we note that the board does not dis­
pute the central issue on the appeal, i.e ., that the 1981 
plan approved by the lower court in fact will result in sub­
stantial resegregation: Thus, the board does not dispute
that under the plan 4-7 of 75 K-4- elementary schools are 
projected as more than 90% one-race in a 32% black school 
system, and that 69 of the elementary schools and half of the 
middle and comprehensive high schools are projected to fall



I

outside a range of 32% black systemwide racial composition 
with a variation of 15% (i .e., 17% - 27% black). See Brief 
for Plaintiffs-Appellants at pp. 22-30, 23 (hereinafter 
"Brief"). Under the present plan, based on the 1971 reme­
dial order (where grade organization is somewhat different),
17 of 88 elementary schools were more than 90% one-race, 
none more than 90% black, based on the latest available sta­
tistics. R. 76, Exh. 152 (1979-80). 22 elementary schools
and 17 of 32 secondary schools fell outside the 32% black 
systemwide population range. Id. under plaintiffs' conceptual 
plan (which is based on the board's elementary and middle school 
zones), only 10 of 75 elementary schools were more than 
90% one race, none more than 90% black. S.R. 152, Exh. A,
A. ___. 19 elementary schools and 1 of 22 middle schools fell
outside the 32% range. See Appendix A to this Brief summa­
rizing the elementary school data for the three plans.

Indeed, under the school board's proposed 1980 Waldrip 
plan, which the board now disowns, more integration would
occur. See S.R. 121, 292 F. Supp. 167, 178-183.

Thus, the plan ordered by the lower court is the least 
desegregative of the four plans presently in the record, 
including the plan presently in operation. That is a result 
that cannot stand.

I.
The Board Misstates the Proceedings 
________and the Record Below_______

The resegregative plan ordered by the lower court was 
not written on a clean slate. This is a 25 year old school

2



desegregation case in which the lower court, while finding 
that the 1971 remedial order presently in effect should be 
improved in two respects, i.e ., the elimination of a "white 
haven" on the outskirts of the county and the elimination 
of one-way busing of black students in grades 1-4, then 
somewhat anomalously proceeded to order less effective and 
discriminatory relief.

A • The 1971 Remedy and Its Implementation.
The board ignores the history of the litigation which 

led the district court to order the 1971 remedy. Briefly 
stated, the remedy was adopted because the board failed 
to propose or implement any substantial relief during the 
preceding 16 years of litigation, and, indeed, maintained 
and perpetuated segregation through various specific poli­
cies, i.e ., school location, zoning, school construction, 
placement or portable classrooms and assignment of black 
teachers. See Brief at pp. 2-6. The student assignment, 
transportation and other features of the 1971 plan were 
expressly ordered, as this Court recognized, "to eliminate 
from the public schools all vestiges of state-imposed 
segregation" found in this case. 4-63 F . 2d 732, 740 (6th 
Cir. 1972), quoting Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1, 15 (1971).

Two features of the 1971 remedy were objected to by 
plaintiffs because they rendered effective implementa­
tion difficult, i.e ., the failure to include all-white

3



schools on the outskirts of the county and the failure to 
impose an equitable burden of busing on black students in 
grades 1-4. These modifications were sought by plaintiffs 
on appeal in 1971-72, and at the suggestion of the 
court, also sought below immediately after the appeal and 
thereafter. See Brief at pp. 10, 11, n. 11, 13, 15 and 
16. These objections were ultimately proven correct. 
However, it was not until 1979 that the lower court con­
sidered, heard, and found that exclusion of schools on the 
outskirts had impeded implementation of the 1971 remedy 
and caused resegregation, see Brief at 19, and it was not 
until the following year that the board's 1980 proposal 
for continued one-way busing of black students in grades 
1-4 was found discriminatory. See Brief at p. 22. Through 
all these years, neither the court below nor defendants, in 
any way, recognized or discharged their duty to make imple­
mentation of the 1971 plan more effective by making desegre­
gation county-wide or to provide for equitable student 
transportation, as proposed by plaintiffs. That course 
of conduct hardly comports with defendants' claim of good 
faith and full implementation of the 1971 remedy. Defend­
ants' Brief at 3.

But there is more. The board wholly ignores that in 
August 1972 Judge Morton, who ordered the 1971 remedy, 
found that during its first year the "integration plan was 
deficiently implemented" and that "the defendant school 
board has not made a good faith effort to comply with the 
court ordered integration plan" by failing to provide



sufficient buses for student transportation. See Brief 
at p. 12 and n. 12.

Defendants also ignore that the board violated the
letter and spirit of the 1971 remedy in many of its con-

1 /struction, expansion and school closing policies. Thus, 
the 1971 remedial order clearly stated that the all-white 
suburban schools excluded from desegregation efforts 
"shall not be enlarged either by construction or by 
portables" without prior court approval in order "to pre­
vent these schools from becoming vehicles of resegrega­
tion," R. 23, pp. 16-17, A. 87-88, and that "'portables' 
ha[d] been used by the Board to house students in schools 
which were all-white or had received only token integra­
tion when there were vacant rooms in predominantly black 
schools," and that "[i]n the future, portables shall be 
used only to achieve integration." Id. (emphasis added); 
see Brief at 9. Yet, in 1973, the board, without prior 
court approval, increased the capacity of 16 of the 22 
suburban schools that were left segregated with portable 
classrooms for a kindergarten program although available 
inner city classrooms were vacant. See Brief at 15,

1/ The record concerning the board's failure to comply
with the 1971 remedial order is principally based on 
the testimony of board officials set forth in the Tran­
script of June 26, 1979, Volumes I-III, which plaintiffs 
discuss at Brief at pp. 19-21, nn. 24-29.

5



19-20. The board also used, without prior court approval, 
annexes to enlarge segregated white schools, including the 
use of a nearby school as an "annex" to Cole Elementary.
I_d. As the court put it during the hearing, "the estab­
lishment of these annexes ... bears the patent stamp of 

2/subterfuge." Generally, the board made no attempt to
assign white students to underutilized inner city schools
either to relieve the disproportionate burden of busing

2/on black students or overcrowding in suburban schools. Id.
At the same time, usable schools in black areas were 
disproportionately subject to closure. With respect to 
high schools, the board developed, without prior court 
approval, a ring of comprehensive high schools between 1973 
and 1979 by spending millions of dollars to enlarge schools 
located in predominantly or exclusively white areas, includ­
ing Hillsboro High School, whose expansion the 1971 remedial 
order had specifically prohibited because of its distance 
from black areas. See Brief at 12-15, 17, 18, 20. The board

2/

2/ School officials admitted that the use of portables 
was resegregative, but never investigated whether the 
portable units were actually needed or what they were 
actually used for. It does appear that some portable 
classrooms in fact were used to house students in higher 
elementary grades while kindergarten students were assigned 
to other facilities in the school. R. 72, Transcript of 
June 26, 1979, Hearing, Vol. II at pp. 930-931, 970-972.
3/ R. 72, Transcript of June 26, 1979, Hearing, Vol. I at p. 200A.
2/ The board did bus some black students to a few pre­
viously all-white schools left segregated, but did not 
otherwise involve suburban schools in desegregation. See Defendants' Brief at 5-6.

6



closed North and proposed closing Pearl, the only high
schools in black areas of Nashville, as part of its
comprehensive high school policy. Id. Ultimately, however,
the board was ordered by the district court in 1980 to
site one of the comprehensive high schools in the black

1/inner city area.
The board's construction, expansion and school 

closure policies were not inadvertent. The development 
of schools in white suburban areas and closing of avail­
able educational facilities in black areas was overtly
designed in part to accommodate "the reluctantce of the

6/white community to participate in the Court's plan." The
same was admitted of the board's failure to bus equitable

7/number of students to inner city schools. The court

5/ The board attempts to justify its placement of all 
comprehensive high schools actually built in white areas 
by citing language in the 1971 remedial order concerning 
proximity to Briley Parkway extended. Defendants' Brief 
at p. 2. However, the same order disapproved the develop­
ment of Hillsboro High as a comprehensive high school 
although it is closer to Briley parkway than most of the 
other comprehensive high schools indicating that proximity 
to the Parkway was itself not intended to be dispositive.
Sse Brief at pp. 8-9, and n. 9. Moreover, the court ordered 
a comprehensive high school in the inner city in 1979.
6/ The board stated, inter alia, in support of its 1973 
petition for school construction:

Presently in the school system, several 
buildings are overcrowded while others are 
under-utilized. This has resulted from 
changing demographic patterns and from the 
reluctance of the white community to partici­
pate in the Court's plan.

R. 1, p. 2, A. 14-2.
7/ E ■g - , R. 74, Transcript of June 26, 1979, Hearing,
Vo1. II, at pp. 901, 932-936, 1038 (Wise).

7



specifically noted that the board had deliberately decided 
to "accommodate white flight in the suburban areas" and "to
follow the white flight" by its construction program

8/instead of assigning students to existing schools. 
(Plaintiffs' motions to hold the board in contempt of the 
1971 remedial order are still pending.)

The lower court took no action on any of the changes 
to the 1971 remedial order proposed and implemented by 
the board, and consistently opposed by plaintiffs, from 
1973-1979. See Brief at 14-18. That total failure of judi­
cial monitoring cannot be explained. The 1971 remedial 
order, which remained in force, required prior court 
approval before significant changes such as those imple­
mented by the board, could be made. Certainly, the court 9/
so understood. The suggestion that a finding of unitary

8/ R. 74, Transcript of June 26, 1979, Hearing, Vol. Ill,at pp. 28-29.
9/ The board cites Judge Gray to the effect that the 
court did not wish to "operate this school system." 
Defendants' Brief at 4. However, that comment was made 
in the context of a minor and superfluous clarification 
sought by the board of a prior change in the court's 
order concerning departure time for students to which 
plaintiffs did not object. The court concluded that "[a]n 
order need not be entered to permit the Board to do that 
which it may already do." R. 57,pp. 1, 3, A. 117, 119.
The board cited only part of the court's statement that:

It is net within the province of the court to 
operate this school system, and it certainly 
is neither the wish nor the intention of the 
court to do so. The concern and intention 
of this court, as well as its constitutional 
duty, is to see that the actions of the defend­
ants in this case are consonant with constitu­
tional requirements.

R. 57, pp. 2-3, A. 118-119 (emphasis added).
8



status was made in 1973 
at 4-, and has no record

is simply wrong, Defendants' Brief
1 0/support. In any event, the

10/ The board can cite only a statement by Judge Gray in 
his ruling on the third party complaint action, see Brief 
at p. 14, n. 15. The full statement is that:

Due to the politicalization of busing 
as an issue on both the local and national 
level, there was a strong public reaction 
to the busing provisions of the plan, and 
attitudes hardened and polarized in the 
Nashville community. This hardening of atti­
tudes found its focus in governmental bodies, 
including the Mayor's office, the City Coun­
cil, and the Board of Education. Soon after 
the school system began to operate under the 
plan, to operate as a unitary system, problems 
developed and, not surprisingly, the crux of 
its problems was busing. Hardships arose 
because the number of buses on hand was 
apparently inadequate to allow for good 
scheduling practices, and both the Metro­
politan Government and the federal govern­
ment refused to provide funds with which to 
purchase the needed buses. As a result, the 
scheduling of buses created hazards endanger­
ing the welfare and safety of certain of 
the students.

R. 59, pp. 2-3, A. 121-122. On its face, judge Gray 
made no finding that unitary status had been achieved.
He intended merely to say that the system "began to 
operate under the plan" as a unitary system, although 
he is clearly referring to the period when Judge Morton 
found that the board implemented the 1971 plan "defi­
ciently" and "not ... in good faith." See supra at p.
4. The statement, in any event, is dictum since the 
achievement of unitary status was neither an issue nor 
necessary to the result on the question of jurisdiction 
for the third party complaint, which was the subject of 
the opinion. There was, of course, no evidentiary hear­
ing on unitary status.

9



board did not seek dismissal nor did the lower court make 
such a finding or dismiss the action after the 1979 and 
1980 hearings. Indeed, in 1980, the court required reme­
dial action "with the primary objective of the achievement 
of a unitary school system for the entirety of Davidson 
County." 479 F. Supp. at 122 (emphasis added).

B . The Rulings of the Court Below
The board, Defendants' Brief at 7, attempts to erron­

eously explain away the lower court's two summary findings 
in 1979 that (1) the exclusion of suburban schools under the 
1971 remedial order was resegregative, impeded desegregation 
and resulted in overcrowding in suburban schools, and (2)
"[t]he resegregation, resulting, at least in part, from the 
nonetheless good faith efforts of the School Board in the 
implementation of the Court's order, amounts to a de jure 
segregation." S.R. 60, pp. 4-5, A. 222-22.3, 479 F. Supp. 
122-123, see Brief at 19. We believe that the finding that 
resegregation resulted in part from the board's implementation 
of the remedial order amounts to de jure segregation, speaks
for itself, and is consistent with the record. Brief at 19- 

11/21. Moreover, the "most dramatic example" of the

11/ See supra at pp. 4-8. The court explained during 
the hearing that it was the board's actions as well as the 
exclusion of suburban schools that had proved problematic. 
See, e.g., Transcript of June 26, 1979, Hearing, Vol. I at 
p. 200A, Vol. II at p. 89c, Vol. Ill at pp. 27-34. Defend­
ants' Brief at 7, n. 14 refers only to the last passage in 
which the court referred to the board's construction in 
areas excluded from the desegregation plan "to accommodate

10



resegregation the court was referring to, which the court 
enjoined from the bench immediately upon hearing, 4-79 F. Supp. 
at 123, n. 5, was the transformation by the board of Pearl 
High School to an all-black school. The court specifically 
found that the resegregation of Pearl was accelerated by 
the board's policy of permitting students an automatic 
transfer option. Quite obviously the lower court did not 
consider the failure by the remedial order to involve 
suburban schools to be the only problem of implementation 
or the only de jure segregation because the court in fact 
ordered relief covering the entire system, not just that 
part of the district formally left segregated in 1971.

With respect to the 1980 opinion, the board also 
attempts to erroneously explain away the lower court's spe­
cific finding that the board's 1980 Waldrip plan (which 
continued the policy of locating all grades 1-4. schools in 
predominantly white suburban areas, requiring continual 
disproportionate burden of busing of younger black children) 
imposed a disparate burden on achieving desegregation on 
young black children. The finding, which was never appealed,

11/ Continued
the white flight in the suburban areas," instead of assign­
ment and transportation to existing inner city schools as 
deriving from the 1971 court order. But, clearly, the 
remedial order prohibited the board from construction and 
expansion of the excluded areas lest they become a haven.
It also appears that the court erroneously believed it per­
missible to take "white flight" into account for construction 
purposes as part of a mandatorily-r.equired desegregation plan. Id. at 31-33.



was based on substantial evidence, see, e .g ., Brief, pp. 39- 
4-0, n. 4-7, and is not clearly erroneous. The board's attempt 
to impeach the finding, Defendants' Brief at 9, by presenting 
total transportation statistics, as opposed to desegregation 
statistics, is simply beside the point. On the other hand,
the court s ruling on "white flight" was not based on sub-

, . 12/ stantial evidence and is clearly erroneous. The system
13/was 75% white in 1971 and is 68% white today. In any 

event, the record is clear and the court found that the 
board took actions in implementing the 1971 remedial order 
which accommodated and encouraged resegregation and movement 
of whites to suburban schools. See supra at pp. 4-8. Thus, 
any white flight" was, at least in part, attributable to the 
board's de jure segregative acts.

With respect to the board's effort to attribute the 
district court's 15% minimum either race standard and neigh­
borhood school policy to the sometimes confusing testimony 
of plaintiffs' educational consultant, Dr. Scott, and black 
witnesses generally, plaintiffs believe that their Brief 
at pp. 39-40, n. 47, ar.d p. 44, n. 50, and the record as a

12/ The board's witness admitted that he had not studied the 
effects of media coverage or community leadership, that the 
conclusions on motivation of white parents were drawn solely 
from statistics in 1967-70 compared to 1971-79 statistics, and 
he did not take account of the board's implementation actions. 
S.R. 184, Transcript of March 3, 1980, Hearing, Vol. 7, pp. 6280-6320.
3JL/ The board admitted that a suburbanization trend was 
underway prior to 1971. R. 74, Transcript of June 26, 1979 Hearing, Vol. II, p. 729 (Wise).

12



whole, is an adequate response. However, we add a few 
supplemental points. First, the context of Dr. Scott's 
testimony should be kept in mind. Dr. Scott was not pre­
siding over a seminar: he was an educational consultant
in a school desegregation action in which the court was 
bound to apply the law, and his testimony was offered in 
the framework of how best to implement legally-required 
desegregation. Thus, in 1979, the focus of the hearing 
was on the board's implementation actions, and he testified 
principally on the need to redress the inequitable busing
of younger black school children, closing of black schools,

14/
and failure to employ black administrators. In 1980,
Scott testified on the inadequacies of the board's 1980 plan,
principally on the lack of a programmatic component, and

15/
inequitable busing and school closings. Dr. Scott's 
testimony is discussed in the Brief at pp. 39-40, n. 47 and

14/ Dr. Scott's testimony in the June 26, 1979, hearing is 
set forth at S.R. 180. Transcript of Proceedings on July 5, 
6, 1979, at pp. 1-258. Scott stated that he was not advan­
cing a neighborhood school concept, but opposed location of 
all schools in white neighborhoods which imposed an unfair 
burden on black students. Id. at 33-34. He stated that 
he opposed segregated schools. Id. at 49. He expressed 
great concern that the school board's "concern over the 
prevention of white flight take priority over any dis­
comfort or inequities imposed on black parents and black 
students," which he believed evidenced by the systematic 
closing of schools in black areas and busing of students 
to schools in white areas. Id. at 50-53. See generally 151-158.
15/ Dr. Scott's 1980 testimony is set forth at S.R. 184, 
Transcript of Proceedings of May 3, 1980.

13



p. 44, n. 50, which defendants do not specifically rebut.
Dr. Scott criticized, inter alia, the inflexible use of 
racial ratios as used in practice by defendant board requir­
ing majority white schools in every case to justify 
inequitable busing of black students and school closings 
in black areas. The thrust of his testimony was that 
when desegregation could not be feasibly accomplished, 
majority black schools should be permitted to continue in 
existence if they performed a valuable educational function. 
Id. To do otherwise (as the board in fact did in its imple­
mentation activities) was demeaning and stigmatizing since 
all-white schools were permitted on less compelling grounds.

Second, Dr. Scott was questioned closely by the board's 
counsel and clearly stated that an estimated one or two all 
black schools in his opinion would, as a practical matter, be 
"an exception to the rule," and that "I don't want to communi­
cate that all the black community schools ought to be

16/
predominantly black or all black."

Third, as the board concedes, Defendants' Brief at p.
11, Dr. Scott did not prepare any plan. The court merely pro­
jected a plan and purported to base it on a selective version 
of his testimony. Plaintiffs' conceptual plan, which defend­
ants studiously ignore, is consistent with plaintiffs' 
recital of the testimony. S.R. 152, Exh. A, A. 613, see Brief 
at pp. 23, 27, n. 35, pp. 28-29, n. 37. The plan revised

16/ S.R. 184, Transcript of May 3, 1980, at pp. 295-296.



the board's plan to provide for substantial desegregation, 
equitable student transportation and a few majority black 
schools in exceptional circumstances. Nor is it true 
that plaintiffs somehow took a formal position that con­
tributed to the court's misreading of Dr. Scott's testi- 17/
mony.

II.
The Board Erroneously Ignores That the Duty 
of the District Court and School Authorities 
Was to "'Make Every Effort to Achieve the 
Greatest Possible Degree of Actual Desegre­
gation, Taking Into Account the Practicalities of the Situation.1"18/

While conceding that the remedial requirements of 
Swann v. Charlotte-Mecklenburg Board of Education, 4-02 U.S. 
1 (1971) , and this Court's 1972 opinion were reaffirmed 
in Columbus Board of Education v. Penick, 443 U.S. 449

17/ Defendants' Brief at pp. 13-14, n. 25, cites two plead­
ings. Plaintiffs' objection to the 1980 plan that each 
school no matter what the circuit stances must fall within 
an optimum range based on the 32% black systemwide repre­
sentation does not compromise the use of a flexible racial 
ration as exemplified by plaintiffs' conceptual plan. Nor 
does the statement that "[t]he plan should advocate the 
premise that within the context of school desegregation 
both majority white and majority black schools are accept­
able" inconsistent with plaintiffs' conceptual plan, 
which provides for a few majority black and all-white 
schools on grounds of infeasibility of desegregation efforts.
18/ 463 F .2d 732, 744 (6th Cir. 1972), quoting, Davis v.
School Comm'rs of Mobile County, 402 U.S. 33, 37 (1971) .

15



(1979); Dayton Board of Education v. Brinkman, 4-4-3 U.S.
526 (1979), the board erroneously argues that these reme­
dial principles no longer apply. Defendants' Brief at 
pp. 19-27.

The board contends that unitary status was achieved 
in the 1971-1972 school year when the 1971 remedial order 
was initially implemented. Defendants' Brief at pp. 19- 
BO. This contention, as noted above, simply has no record 
support, see supra at p 8, and n. g. Moreover, the court 
in fact ordered further relief. Obviously, mere formal 
imposition of a desegregation remedy, however well-inten­
tioned, does not mean that a defendant school board has fully 
discharged its constitutional duty. Jt has long been the 
rule that "whatever plan is adopted, will require evalua­
tion in practice, and the court should retain jurisdiction 
until it is clear that state-imposed segregation has been 
completely removed," Green v. School Board of New Kent 
County, 391 U.S. 430, 439 (1968) (emphasis added), and "dis­
establishment has been achieved." Raney v. Board of

19/
Education, 391 U.S. 443, 449 (1968). The related claim

19/ Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976), 
is completely inapposite. In Spangler, there was no dispute 
and the district court found that the student assignment 
part of a desegregation plan had been complied with, prior 
unconstitutional assignment practices cured, and racial 
concentrations resulted from independent intervening demo­
graphic changes. In the instant case, there was a dispute 
and no findings of unitary status have ever been made 
about the 1971 remedial order. Indeed, the lower court 
found that the board's implementation of the remedial order 
"amounted to de jure segregation" and the record as a whole 
demonstrated that implementation has not been effective.
See Martin v. Charlotte-Mecklenburg Board of Education,

16



that the board "fully'' and in "good faith" implemented a 
Swann remedy, Defendants' Brief at pp. 20-21, is also 
wrong. The court summarily found and the record fully 
shows that the board failed in its "affirmative responsi­
bility to see that pupil assignment policies and school 
construction and abandonment practices 'are not used and 
do not serve to perpetuate or re-establish the dual school 
system." Brinkman, 443 U.S. at 738, quoting, Penick at 
460. Although the lower court concluded that the board 
acted in "good faith" in its inadequate implementation 
activities, the court'plainly ignored that "the availability 
to the board of other more promising courses of action may 
indicate a lack of good faith." Green, supra, 391 U.S. at 
439. The board, of course, expressly stated that it expanded 
suburban school facilities "to follow white flight," and did 
not bus white students to underutilized schools in black 
areas because of the opposition of white parents.

The board also inconsistently argues that it somehow 
should not be held accountable because "the court order 
itself has been responsible for de jure segregation in 
Davidson County" and "has fostered resegregation." Defendants' 
Brief at 21, 24. The board was responsible for 'inadequate 
implementation. See supra at part I. Moreover, no legal

19/ Continued
475 F. Supp. 1318, 1322-1340 (W.D. N.C. 1979), aff'd on 
other grounds, 626 F .2d 1165 (4th Cir. 1980), cert, denied, 
39 U.S.L.W. 3743 (1981) (board's failure to implement 
desegregation plan approved in Swann precludes any finding 
of achievement of unitary status).

17



4 »

doctrine absolves a school board from its constitutional 
duty because a judicially-authored desegregation plan 
proves ineffective. The board's "continuous constitutional 
obligation to disestablish its dual school system," Penick, 
supra, 443 U.S. at 458, is independent of that of the court, 
and requires that a board take whatever steps are required 
to achieve effective desegregation. In any event, it was 
the failure of the board itself to propose a realistic remedy 
that required the district court to frame the 1971 remedial 
order. See 463 F .2d at 734; Swann, supra, 402 U.S. at 15.

The board's fundamental error is its contention that 
the history of implementation since 1971 somehow demon­
strates that a "Swann remedy" cannot and will not work.
The simple answer is that the board never fully implemented 
the remedial principles stated in Swann, Davis and other 
authority, and summarized in this Court's 1972 opinion.
The record of the board's inadequate implementation activities 
speaks for itself. The post-1971 history of this litigation 
does not permit the board to undertake less desegregation. 
Indeed, greater effort is required when "the school board 
involved has not done enough to eradicate the lingering con­
sequences of the dual school system." Penick, supra, 443 
U.S. at 459 (referring to history of Green and Swann litiga­
tion) . it is no less true a principle when there has been 
ineffective implementation of a remedial order modeled on 
Swann. Martin v. Charlotte-Mecklenburq Board of Education,
475 F. Supp. 1318, 1328-1340 (W.D. N.C. 1979), aff'd on

18



other grounds, 626 F .2d 1165 (2th Cir. 1980), cert, denied, 
29 U.S.L.W. 3723 (1981) (collateral challenge by white 
parents to continued pupil assignment and student trans­
portation originally ordered in the Swann litigation).
Judge McMillan rejected, inter alia, a claim that unitary
status had been achieved based on a strikingly similar 

2 0/
record.

Ill.
The Board's 1981 Plan 
Violates the Constitution.

A. The Use of a 15% Either Race Standard and 
the Failure to Use Racial Ratios.________
The board states that plaintiffs seek "a fixed mathe­

matical ratio of blacks to whites in every school." Defend­
ants' Brief at 27. The statement is both a red herring and 
wrong. First, what is at issue is the refusal of the court 
below to apply the learning of Swann and this Court's 1972 
opinion that racial ratios are a convenient starting point

20/ The court found that (a) construction, location and 
closing of school buildings continued to promote segrega­
tion by, inter alia, putting a disproportionate burden of 
busing on black students; (b) placement of kindergarten and 
elementary school grades in white areas remained discrimi­
natory and unfair to the smallest black children; (c) failure 
to monitor the thousands of pupil transfers that took place 
each year, in the context of the "feeder" plan and in a com­
munity of longstanding housing segregation, tended to promote 
segregation in the schools; and (d) discriminatory burdens of 
transportation for desegregation remained upon black school 
children.

19



h

in the process of shaping a remedy, and, instead, substi­
tuting a 15% either race standard. See Brief at pp. 41-45. 
Nothing that the board can marshal, however, legitimizes 
the use of a 15% either race standard as a desegregation 
tool. It bears no relation to the duty of the board to 
achieve the most effective and practicable desegregation, 
and, in this case, resulted in substantial retreat from the 
progress made under the 1971 remedy. Plainly, foisting on 
plaintiffs the claim that they seek a fixed ratio in every 
school does not justify use of a resegregative 15% either 
race standard. Second, plaintiffs obviously do not espouse 
a fixed mathematical ratio in every school. Such a ratio
obviously does not appear in their conceptual plan. See S.R.

21/152, Exh. A, A. 613.

B. The Claim of Impingement on the Educational
Process as a Justification for Resegregation.
The board asserts that impingement on the educational

process justifies resegregation of elementary and middle
schools. Defendants' Brief at pp. 31-38. As noted above,
the record is clear that properly-framed and implemented
relief further applying principles of Swann has not been in

21/ Defendants' Brief at pp. 29-30, suggests that the use 
of racial ratios may lapse where a school district has 
operated for a decade under a Swann remedy. No relevant 
authority is cited: Spangler v. Pasadena City Board of
Education, 611 F.2d 1239 (9th Cir. 1979) (where, unlike 
here, unitary status has been achieved); Hutto v. Finney, 
4-37 U.S. 678 (1978) (a prison conditions case dealing with 
solitary confinement). The suggestion, in any event, does 
not apply to a case where, as here, there has been ineffec­
tive and discriminatory desegregation efforts.

- 20



force. It is therefore premature to impeach the require­
ments of constitutional command with the vague sociological 
evidence presented by the board. Furthermore, the board is 
itself in part responsible for any educational impingement. 
Thus, the achievement gap of black students referred to by 
Dr. Scott was attributed by him as stemming in part from 
the board's one-way busing of black students, lack of reme­
dial and other programs, and general lack of concern for 
the well-being and educational attainment of black students. 
See Brief at pp. 39-40, n. 47. Similarly, the so-called 
"white flight" to the suburban areas the board refers to, 
a phenomenon well underway before 1971, was accelerated 
by the board's own implementation actions. See supra at pp. 
4-8, 12.

Nor is the board right that basic legal principles
have changed. The rule that fear of "white flight" does not
justify the failure to implement desegregation is rooted in
the fundamental principle in American jurisprudence that
vindication of constitutional rights cannot yield to popular
opposition. See, e.g., Cooper v. Aaron, 358 U.S. 1 (1957).
It is a rule that has often been reiterated in school desegre-

22/gation cases, and, contrary to the board, has not lapsed.

22/ E.g., Brown v. Board of Education, 349 U.S. 294, 300 
(1955); Monroe v. Board of Commissioners, 391 U.S. 450, 459 
(1968); Wright v. Council of City of Emporia, 407 U.S. 451 
(1972); United States v. Scotland Neck Bd. of Educ., 467 U.S. 
484 (1972); Higgins v. Board of Education, 508 F.2d 779, 794 
(6th Cir. 1974); Anderson v. Dougherty County Board of Educa­
tion , 609 F . 2d 22W , 226 (5th CirT 198’ ) ; see Brinkman v. 
Gilligan, 583 F .2d 243, 248, n. 11 (6th Cir. 1978) .

21



The board erroneously attempts to distinguish between 
initial and subsequent desegregation remedies. However, 
neither the record nor the law support such a distinction. 
The duty to desegregate does not become less compelling 
with each year of failure to provide effective relief, nor 
does the failure become more excusable. The claim that the 
lower court merely took fear of white flight "into account" 
in formulating relief is specious: black elementary stu­
dents are remanded under the 1981 plan to attend the very 
schools that the district court itself found located and 
originally built in order to maintain and perpetuate racial 
segregation prior to the 1971 remedial order. 317 F. Supp. 
980, 987-989. Fear of white flight was "taken into account"
in the instant case only in the sense that it was used as a

23/
license to resegregate. With respect to exclusion of 1-4.
students, the law is clear. See Brief at pp. 37-38, and n.
34-. Haycraft v. Board of Education of Jefferson County,
Kentucky, 585 F.2d 803, 805 (6th Cir. 1978), cert, denied,
443 U.S. 915 (1979), cannot be distinguished based on the

24/
record in this case.

23/ The board cites only cases in which fear of "white 
flight" was used as a consideration in selection of alterna­
tive remedies in voluntary desegregation plans, neither such 
circumstance being present here. See Defendants' Brief at 
34. Higgins v. Board of Education of Grand Rapids, 508 F .2d 
770, 794 (6th Cir. 1974); Jackson High School v. Ambach, 598 
F .2d 705 (2n Cir. 1979); Johnson v. Board of Education of the 
City of Chicago, 604 F.2d 504 (7th Cir. 1979).
24/ The testimony of Dr. Scott on this point was that one-way 
busing of black school children in grades 1-4 to schools in 
white suburban schools was bad educational policy, that the 
board should redress with equitable busing, location of schools

22



*

C. Imposition of a Disproportionate and
Inequitable Burden of One-Way Busing on
Black Middle School Students.__________
In plaintiffs' principal brief, it was asserted that 

black middle school students bear a disproportionate bur­
den of busing because the plan assigns students from 
predominantly black inner city areas to 11 middle schools 
located in predominantly white residential areas by non­
contiguous zoning, but establishes no noncontiguous zones 
from white students to attend inner city middle schools, 
and that as a result six inner city middle schools are 
projected as majority black. Brief at pp. 45-47. That 
factual showing constitutes a prima facie case comparable 
to the one-way busing of 1-4 grade students that the dis­
trict court found "disparately onerates young black children 
with the burden of achieving desegregation." 492 F. Supp. 
at 191. That showing is not controverted. Defendants' Brief 
at pp. 38-42. Instead, the board cites only evidence that 
some white students travel longer distances within con­
tiguous zones, but can cite no evidence showing that propor­
tionally more white students travel longer distances than

24/ Continued
and programs. See Brief at pp. 39-40, n. 47. Furthermore, a very 
careful review of the literature on the effects of desegre­
gation on achievement finds that: "A comparison of the 73
studies leads to one important conclusion: that desegregation
is noticeably more likely to have a positive impact on black 
test scores if it begins in the earliest grades, and effects are 
especially likely to be positive for first graders." Crain & 
Mahard, "Desegregation and Black Achievement," 42 Law & Con- 
tempcrary Problems 1978 (Spring and Summer) at Abstract.

23



>

black students, The same defense was not enough to rebut 
the prima facie case of one-way busing at grades 1-k.
The contrary ruling with respect to middle school busing 
burden set forth in the lower court's memorandum approving 
the 1981 plan (which incorporated verbatim the board's 
entire 27-page finding of fact) lacks any evidentiary basis 
and is clearly erroneous, and, in any event, entitled to no 
deference. See James v. Stockham Valves & Fittings Co., 559 
F. 2d 310, 31k, n. 1 (5 th Cir. ) , cert, denied, k3k U.S. 10 3k (1977) .

Moreover, the board misperceives that plaintiffs are 
unwilling to bear their fair share of the burden of student 
transportation. What plaintiffs object to is that black stu­
dents be required to bear a disproportionate and inequitable 
share through a program of one-way busing. That is prohibited 
discrimination. Indeed, the board makes no effort to ques­
tion substantial authority to that effect cited in plaintiffs' 
principal brief at pp. k5-k6. E .g., NAACP v. Lansing Board 
of Education, 559 F .2d 10k2, 1052 (6th Cir.), cert, denied,
k3k U.S. 997 (1977); see also Martin v. Charlotte-Mecklenburg

25/
Board of Education, supra.

D. The Failure to Develop Pearl High School 
as a Comprehensive High School._________
The board does not dispute that (a) between 1971-1979,

the board expanded existing high schools in white areas

25/ The board cites Higgins v. Board of Education, supra, but 
as NAACP v. Lansing Board of Education, supra, 559 F .2d at 1052, 
makes clear: "The implication of Higgins is clear that a pro­
gram that does involve one-w&y busing in a system which has a 
history of de jure segregation violates equal protection."

2k



t

including Hillsboro, the expansion of which was specifically- 
prohibited by the court in 1971 but not Pearl, the historic 
black high school, (b) Pearl was illegally resegregated, and 
(c) the expansion of Pearl is a more economically feasible, 
practical and certain a prospect than the building of an 
entirely new facility at Ford Green. Defendants' Brief at 
k2-kk. Most of the comprehensive high schools were developed 
by expansion of existing facilities, and the site of the com­
prehensive high school scheduled to be built at Goodlettsvi1le 
was changed to an expansion of nearby existing Madison High
School in 1981 in light of a cost savings of 2.5 million dol- 26/
lars. Nor is there anything unusual or infeasible about the

27/
need to augment the Pearl site. In addition, plaintiffs
consistently sought to redress the failure to develop Pearl

28/
as a comprehensive high school.

26/ S.R. 18k, Transcript of March 30, 1981, Hearing, at pp. 150-151.
27/ R. 7k, Transcript of June 26, 1979, Hearing, Vol. II, at 
pp. 9k9-959 (land acquired for Hillsboro expansion). There 
were no insurmountable obstacles to bar Pearl from being 
developed into a comprehensive high school, and that the site 
has several features, which make it uniquely attractive, such 
as its proximity to Fisk University, a major black university.
R. 7k, Transcript of June 26, 1979, Hearing, Vol. Ill, pp. 89- 
138, 162-180 (testimony of Isibor, Vincent and DeBerry).
28/ See generally R. 7k, Transcript of June 26, 1979, Hearings. 
That plaintiffs proffered a proposed finding of fact that a 
comprehensive school be built at Ford Green Elementary after 
the court made known its decision not to place the facility 
at Pearl, is not inconsistent. Nor is it inconsistent that 
plaintiffs' school conceptual plan utilized the middle school 
zone designated for Pearl. The plan was an attempt to achieve 
substantial desegregation using the elementary and middle 
school zones contained in the board's 1981 plan. Plaintiffs' 
plan did not address the issue of high school site locations,

25



4 ^•v %

E . Estoppel of the Appeal.
The board concedes that there is no authority for estop- 

ping plaintiffs' appeal in such circumstances, but contends 
that nevertheless plaintiffs have changed their position on 
several issues during the proceedings below and should not 
be permitted to press this appeal. Defendants' Brief at pp. 
48-51. Plaintiffs respectfully submit that the record dem­
onstrates no change of position below. See supra at part I.
In any event, no prejudice is or properly could be claimed.
This is a class action suit brought on behalf of a class of 
black school children and parents to vindicate a constitu­
tional right to equal educational opportunity guaranteed by 
the Fourteenth Amendment. See 463 F .2d at 743. The require­
ments of Swann and other authority simply cannot be waived

29/or compromised on behalf of the class on so tenuous a basis.
There is a more fundamental error. The board wholly 

ignores that once plaintiffs have proven the existence of 
unconstitutional segregation, the Constitution imposes the 
affirmative duty on the board itself and, in default thereof, 
the district court to propose and implement the measures neces­
sary to effectuate a transition from a dual system to a unitary

28/ Continued
and would not be affected in any way by the use of another 
facility in the Pearl middle school zone as a middle school instead of Pearl.
29/ Cf., Rule 23(d), Fed. R. Civ. Pro. (court must provide 
opportunity for class members to be heard and approve a 
class action compromise.

26



1 ft *

system. Brown v. Board of Education, 34-9 U.S. 294, 301 
(1955); Swann, supra, 402 U.S. at 15; Penick, supra, 443 
U.S. at 458. That obligation cannot be excused, and an 
ineffective desegregation plan cannot be justified, merely 
by claiming that the purpose of the board and the court is 
to accommodate plaintiffs who at one time did not desire 
the full enforcement of their rights. The test of a desegre­
gation measure is its effectiveness, not its purpose.
Swann, supra; Davis, supra; Penick, supra; Brinkman, supra.

The judgment and orders of the district court should be 
reversed, and the district court should be ordered to assure 
that an effective and equitable desegregation plan, consistent 
with Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1972), and other authority, be implemented for the 
1982-1983 school year.

CONCLUSION

AVO
RIC

Res

2
Nashville, Tennessee 37201

JACK GREENBERG 
JAMES M. NABRIT, III 
BILL LANN LEE

Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs-Appellants

27



CERTIFICATE OF SERVICE

Undersigned counsel for plaintiffs-appellants
hereby certifies that on this 1st day of December,
1981, copies of the foregoing Reply Brief for Plain- 

✓
tiffs Appellants were served upon counsel for the 
parties by Federal Express addressed to:

It is further certified that copies of the 
Joitit Appendix, Volumes I and II, were served on the 
above parties by Federal Express on November 30, 1981.

William R. Willis, Jr., Esq. 
Marion F. Harrison, Esq.
215 Second Avenue, North 
Nashville, Tennessee 37201

Bill Lann Lee
Attorney for Plaintiffs-Appellants



* *  -4

APPENDIX A

Summary of Black Racial Composition at 
Elementary Schools Under the 1981 Plan, 
the Present Plan, and Plaintiffs' Plan

% Black % Black % BlackUnder Under UnderElementary 1981 Present Plaintiffs'Schools Plan Plan * Plan
Allen 3.2 36.5 27.1Amqui 1.0 0.8 20.8Bellshire 9.7 46.6 44.9Berry 3.0 45.0 61.9Binkley 9.5 38.8 25.6Bordeaux 76 . A 76.6 38.8Brick Church 78.7 85.1 44.9Brookmeade 3.6 26.0 47.4Buena Vista 87.2 36.1 42.2Caldwell 93.1 52.8 46.7Carter-Lawrence 97.2 __ 61.9Chadwell 4.0 21.7 44.9Charlotte Park 5.9 39.2 46.3Cole 7.0 6.9 7.0Cotton 49 . A 49.4 36.3Dalewood 3.9 33.5 30.0Dodson A.4 4.4 26.4DuPont 10.4 10.4 39.3Eakin 11.7 41.8 55.5Early 95.4 64.0 47.4Fa11-Hamilton 40.4 46.7 61.9Gateway 0.0 0.0 38.8Glencliff 2.6 43.2 2.6Glendale 71.5 50.1 25.6Glengarry 1.6 38.2 1.6Glenn 68.0 49.2 39.7Glenview 14.5 39.5 36.7Goodlettsville 2.2 2.2 2.2Gower 6.9 20.7 35.9Gra-Mar 21.0 65.9 21.0Granberry 5.0 10.5 25.6Julia Green 1.0 46.0 55.1Harpeth Valley 1.4 3.5 1.4Haynes 90.2 48.1 90.2Haywood 7.6 7.6 7.6Head 96.9 41.9 55.5Hermitage 2.3 2.3 26.4Hickman 0.0 __ 26.4Cora Howe 38.3 40.9 38.3Inglewood 65.2 31.4 30.0Jackson 7.2 7.2 39.3

la



*  4

% Black % Black % BlackUnder Under UnderElementary 1981 Present PlaintiffsSchools Plan Plan* Plan
Joelton 0.0 0 . 0 54.1Johnson 80.7 — 36.7Joy 35.7 42.3 22.0King's Lane 95.9 79.9 39.3Kirkpatrick 41.5 60.0 20.8Lakeview 5 . 2 5 . 2 5 . 2Lockeiand 3.0 36.2 46.7McCann 1 . 1 40.6 46,3McGavock 1 . 3 18.2 27.1McKissack 93.5 40.3 46.3Dan Mills 5 . 3 32.0 30.0Morny 18.9 0.6 36.3Napier 84.3 33.4 27.1Nelley'.s Bend 8.5 8.5 39.2Old Center 3 . 6 27.4 38.8Paragon Mills 10.3 28.0 10.3Park Avenue 42.4 31.5 42.4Percy Priest 2 . 3 44.6 42.2Richland 3.5 32.0 42.2Rosebank 12.1 47.9 4 6 . 7Ross 2 0 . 2 1 2 . 1 2 0 . 2Shwab 1 6 . 8 2 0 . 8 3 9 . 7Stanford 1 . 4 3 0 . 4 2 7 . 1Stokes 6 2 . 8 4 9 . 4 4 2 . 2Stratton 7 . 2 2 7 . 1 2 2 . 0Sylvan Park 0.0 3 8 . 6 4 2 . 2Tusculum 7 . 3 7 . 3 7 . 3Una 5 . 4 5 . 4 5 . 4Union Hill 0 . 0 0.0 0.0Wade-Jordonia 4 6 . 0 4 6 . 1 4 6 . 0Warner 7 5 . 0 6 3 . 8 2 6 . 4Westmeade 4 . 4 1 9 . 1 3 5 . 9Wharton 9 9 . 0 5 2 . 9 3 5 . 9Whitsitt 1 1 . 4 4 5 . 8 3 6 . 7

*/ In addition, the board operated the following additional 
elementary schools in 1979-1980: Burton (48.5), Cockrill
(47.6) , Donelson (1.7), Cumberland (65.1), Alex Green (81.2), 
Ford Greene (35.4), Crieve Hall (31.2), Hickman (10.3), H. G. 
Hill (38.2), Parmer (60.0), Pennington (1.5), Rose Park (47.2), 
Martha Vaught (28.5), Wade (46.1), Woodmount (32.2) Bellshire
(4.6) , Fehr (30.9), Woodbine (31.4).

2 a