Robinson v Shelby Country Board of Education Reply Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

CLAUDE BERNARD ROBINSON and 
JULIA D. ROBINSON, Infants,
By MELVIN ROBINSON, their 
father and next friend, et al,

Appellants,
v.

SHELBY COUNTY BOARD OF EDUCATION, 
et al,

Appellees,
UNITED STATES OF AMERICA, by 
Ramsey Clark, Acting Attorney 
General,

Plaintiff-Intervenor.

BRIEF OF APPELLANTS

William E. Caldwell 
Walter L. Bailey, Jr.
Russell B. Sugarmon, Jr. 
RATNER, SUGARMON & LUCAS

525 Commerce Title Building 
Memphis, Tennessee 38103

Jack Greenberg 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

Page
TABLE OF C A S E S .......................    i
ISSUE ON APPEAL .........................................  1
STATEMENT OF THE C A S E ..................................  2

A. HISTORY OF THE C A S E ..................   2
B. STATEMENT OF F A C T S ....................... . . . 12

ARGUMENT................................................... 18
CONCLUSION...................    27
CERTIFICATE OF SERVICE 29



TABLE OF CASES

Pages
Alexander v. Holmes County Bd. of Educ.,

396 U.S. 19 (1969) ................... 2, 9, 11, 18, 19, 20, 27
Bolling v. Sharpe, 347 U.S. 497 (1954) . . 20
Brewer v. School Bd. of City of Norfolk,

397 F .2d 37 (4th Cir. 1968);
#14,544 (4th Cir. June 22, 1970) . . . 22, 23, 27

Briggs v. Elliott, 132 F.Supp. 776,
(E.D. S.C. 1955) ............. 18, 19

Brown v. Board of Education, 347 U.S. 483, 
(1954); 349 U.S. 294 (1955) ........ 2, 22, 24, 25, 27

Brunson v. Bd. of Trustees of Sch. Dist.
No. 1 of Clarendon County, S.C.,
No. 14,571 (4th Cir. June 5, 1970)
(en banc) ........................... 23-26

Cato v. Parham, 297 F.Supo. 403,
(E.D. Ark. 1969) . ." ................. 22

Christian v. Bd. of Ed. of Strong School 
District #83 of Union County,
#ED 68-C-5 (W.D. Ark. 1969) ........ 20-21

Cooper v. Aaron, 358 U.S. 1 (1958) . . . . 8
Clark v. Board of Educ. of Little Rock,

No. 19795 (8th Cir. May 13, 1970) . . 18-19
Deal v. Cincinnati Bd. of Educ., 419 F.2d

1387 (6th Cir. 1969) ................. 19
Dowell v. School Board of Oklahoma City, 

Civil No. 9452 (W.D. Okla. Aug. 8, 
1969) aff'd. 396 U.S. 296 (1969) . . . 20-21

Dred Scott v. Sanford, 60 U.S. 393 (1856) . 24, 25
Green v. County School Bd. of New Kent

County, 391 U.S. 430 (1968) . . . . . 4, 6, 7, 11, 18, 20, 21
Green v. School Bd. of the City of

Roanoke, Va., No. 14,335 (4th Cir.
June 17, 1970) ....................... 19

x



Haney v. County Bd. of Educ. of Sevier
County, 410 F.2d 920 (8th Cir. 1969 . . 21

Henry v. Clarksdale Municipal Separate 
School Dist., 409 F.2d 682 (5th 
Cir.) cert, denied, 396 U.S. 940 
(1969) ............................... 22

Kelley v. Metropolitan County Board of 
Ed. of Nashville and Davidson 
County, Tennessee, Nos. 2094 and 
2956 (M.D. Tenn. July 16, 1970) . . . . 19-20, 22

Kemp v. Beasley, No. 19,782 (8th Cir. 
Mar. 17, 1970) .......... .. 18, 23

Keyes v. School Dist. No. 1, Denver,
303 F.Supp. 279 (D. Colo.) stay 
vacated, 396 U.S. 1215 (1969) ........ 22

Monroe v. Board of Commissioners of
Jackson, 391 U.S. 450 (1968) . . . . . 4, 6, 7, 8, 18

Northcross v. Board of Educ., 397 U.S. 232
(1970) ......................... .. . . 9, 11, 19, 20

Plessy v. Ferguson, 163 U.S. 537 (1896) . . 24, 27
Raney v. Board of Educ., 391 U.S. 443 (1968) 4, 6, 7, 18
Sloan v. Tenth School District of Wilson 

County, Civ. No. 3107 (M.D. Tenn.,
Oct. 16, 1969) ....................... 28

Spangler v. Pasadena City Bd. of Educ.,
Civ. No. 68-1438-R (C.D. Cal.,
March 12, 1970) ....................... 22

Swann v. Charlotte-Mecklinburg Bd. of
Educ., 300 F.Su d d . 1358 (W.D. N.C.
1969 ); No. 14,5i~5 (4th Cir. May 26, 
1970), cert, granted, U.S.
(1970) ............................... 22 , 27

United States v. Greenwood Municipal 
Separate School Dist., 406 F.2d 
1086 (5th Cir. 1969) ................. 22

11



. 22

United States v. Indianola Municipal
Separate School Dist., 410 F.2d 626 
(5th Cir. 1969) .....................

United States v. Jefferson County Board 
of Educ., 372 F .2d 836 (5th Cir.); 
aff'd. 380 F .2d 385 (1966), cert, 
denied sub nom. 389 U.S. 840 (1967) .

Valley v. Rapides Parish School Bd., No.
29237 (5th Cir. Mar. 6, 1970) . . . .

Watson v. City of Memphis, 373 U.S. 526
(1963) ............. . . . . . . . .

Whitley v. Wilson City Bd. of Educ.,
No. 14,517 (4th Cir. May 26, 1970)

iii

. 21 

. 22 

. 8 

. 19



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

CLAUDE BERNARD ROBINSON and 
JULIA D. ROBINSON, Infants,
By MELVIN ROBINSON, their 
father and next friend, et al,

Appellants,
v.

SHELBY COUNTY BOARD OF EDUCATION, 
et al,

Appellees,
UNITED STATES OF AMERICA, by 
Ramsey Clark, Acting Attorney 
General,

Plaintiff-Intervenor.

BRIEF OF APPELLANTS

ISSUE ON APPEAL

Whether a School Board, which formerly operated a state- 
imposed dual school system, meets its affirmative constitutional 
obligation to desegregate that system by merely drawing zone 
lines "not gerrymandered to preserve segregation."



STATEMENT OF THE CASE

Appellants (plaintiffs below), who represent the class of 
black school children in Shelby County, Tennessee, appeal from an 
order of the United States District Court for the Western District 
of Tennessee, Western Division, entered on May 7, 1970, implement­
ing the District Court's opinion of April 6, 1970* approving the 
latest desegregation plan of the appellee Board of Education 
(defendant below), which plan was filed pursuant to a prior order 
of that same court entered October 1, 1969. Said opinion of 
April 6th, if allowed to stand, will directly contradict the 
concepts and mandates of the decisions of the Supreme Court from 
Brown v. Board of Education, 347 U.S. 483 (1964) ; 349 U.S. 294 
(1955) through Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) .
A. HISTORY OF THE CASE

The original suit in this case was filed by the private 
plaintiffs on June 12, 1963. Subsequently, the District Court 
entered an order approving the School Board's dual overlapping 
school zones and the transfer provision provided therewith.

On May 6, 1966, the United States intervened pursuant to 
Section 902 of the Civil Rights Act of 1964, 42 U.S.C. 2000h-2, 
and filed a Motion for Supplemental Relief alleging that the 
continued existence of the dual, overlapping school zones consti­
tuted a violation of the Constitution of the United States. The 
motion alleged that the defendant Board maintained dual zones and

* The opinion is reported in 311 F.Supp. at 97, and appears in the 
Appendix to this brief at A. 17.

2



students were assigned to particular schools on the basis of 
their race.

A consent decree filed May 20, 1966 directed the operation 
of the Shelby County schools under a modified freedom of choice 
plan. The district was divided by the decree into five "attend­
ance areas" and each child was required to make an annual choice 
of one of the schools within the area where he resided. For the 
following school terms, the Shelby County schools were operated 
under essentially the same freedom of choice plan of pupil assign­
ment. However, an amendment to the plan of March 23, 1967, made 
at the request of the School Board, established single zone 
boundaries for three predominantly white high schools serving 
grades nine through twelve but retained a freedom of choice for 
all other pupils.

The plan adopted May 20, 1966 did not result in any substan­
tial progress in desegregation of the system. The plaintiff- 
intervenor, the United States of America, in January, 1967, filed 
a Motion for Civil Contempt as a result of the failure of the 
defendants to comply with the consent decree, which resulted in 
an order of the court, January 19, 1967, finding the defendants 
in violation of the order of May 20, 1967, and ordering the 
achievement of racial balance in the faculties as a partial remedy 
for this intransigence.

The appellee School Board later filed a motion seeking relief 
from the faculty desegregation requirements of the January 19,
1967 order. The District Court denied any relief at that time.

3



On June 27, 1968, the plaintiffs filed a Motion for Further
Relief in light of Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968), Raney v. Board of Education of the 
Gould School District, 391 U.S. 443 (1968) and Monroe v. Board 
of Commissioners of Jackson, 391 U.S. 450 (1968) , asking that the 
defendants be required to institute a plan of desegregation based 
on unitary geographic zones, consolidation of schools, or pairing. 
The United States filed a similar motion.

On July 19, 1968, the District Court entered a Memorandum 
Decision and Order (A. 1-6 ) requiring the defendant Board to
prepare a plan "for integration of pupils, to be effective begin­
ning with the school year 1969-70, to the end that thereafter, to 
the extent feasible, no school in the system will be identifiable 
as a 'white' or 'Negro1 school." (A. 6 )•— The court
ordered the Board to adopt a plan based on unitary geographic 
zones, or consolidation or pairing of schools, to the effect that 
"no school will be recognizable as 'white' or 'Negro'" (A. 4 )
However, the court denied plaintiff-appellants' request for this 
relief for the 1968-69 school year on the ground that there was 
not sufficient time remaining to effect such a change. The 
court's order, however, made clear the affirmative responsibility

1/The court held, and we submit, properly so, that under Green, 
Raney and Monroe "integration of pupils and faculty is the legally 
required end result ... " (A. 2 ). With respect to faculty,
the court required that "[b]y the beginning of the 1969-70 school 
year, the proportion of white to Negro teachers in each school 
must not vary more than 10% from the proportion of white to Negro 
teachers in the entire system." (A. 6 )•

4



of the defendant Board of Education to comply with the new order 
for the 1969-70 school term. And on August 15, 1968, the District 
Court entered an order requiring the Board to submit a plan for 
the 1969-70 school year that would "to the extent feasible, main­
tain in each school operated by the Shelby County system a ratio 
of Negro to white students within 10% ... of the ratio of Negro 
to white students in the system as a whole."

During the 1968-69 school term, less than five percent (5%) 
of the Negro students in the Shelby County system attended schools 
with white students. (A. 8 ).

On January 15, 1969, the defendant Board of Education filed 
its new plan of desegregation purporting to comply with the 
District Court's July 19, 1968 order. Subsequently, a Motion to 
Intervene in the suit was filed by white parents which resulted 
in a hearing before the District Court and permission for them to 
intervene in the cause.

The court had previously ordered the Board to consult with 
the Title IV Consulting Center at the University of Tennessee in 
the preparation of its plan. During the period following the 
submission by the Board of its plan, it was necessary for the 
plaintiffs to file a motion and have a hearing before the defend­
ant Board would submit its plan to the Title IV Center for evalua­
tion .

On April 11, 1969, the court ordered the report, evaluation 
and critique by the Title IV Center filed in the record of this

5



cause. On that same day, plaintiffs filed their objections to 
the Board's plan. The hearing on the submitted plans commenced 
on May 12 and terminated on May 16, 1969.

On May 26, 1969, the District Court entered its "Opinion
and Order." (A. 7-10 ). The court found that during the then-
approaching 1969-70 school year, "a total of about 34,912 pupils
..., of which approximately 72% will be white and 28% will be
Negro," (A. 7 ) would be in attendance in the defendant Shelby
County School System. The court concluded that the defendant
Board's proposed desegregation plan, which would increase the
percentage of pupils in desegregated schools "to around 50%"
(A. 8 ), but which provided for racially-dual, overlapping
zones, would "not, as a long-term plan, meet the requirements of
Green, Raney and Monroe, 391 U.S. 430, 443 and 450." (A. 9 ).
Nevertheless, the court found that "it would be proper to approve
operation of the defendant Board's plan during the coming year
[1969-70]." (A. 9 ). The court required, however, "that
the proposed plan as filed and as developed at the hearing will
also allow pupil transfers from majority to minority situations,
that the defendant Board will give reasonable notice of such
options, and that the defendant Board will furnish transportation
to pupils who choose such options provided the distances involved

2 /are sufficient to otherwise entitle them to transportation."-7 
(A. 10 ) .

2/Under Tennessee law (Tenn. Code Ann. §49-2201) pupils who live 
more than 1 1/2 miles from their school are entitled to state- 
funded transportation. County Boards may provide transportation, 
(continued)

6



The court stated that it would later file a full opinion setting 
forth "precisely why the defendant Board's plan does not meet 
the requirements of ... [the Green, Raney and Monroe decisions] 
and indicate specifically what is required." (A. 9 ).

On October 1, 1969, the District Court filed its "Addendum 
to Opinion and Order of May 26, 1969." (A. 11-16 ). The court
pointed out that " [u]nder the Board's proposed plan, some schools 
would remain entirely Negro, and some white pupils would attend 
schools that are farther from their homes than are other schools, 
attended only by Negroes, which have appropriate grade levels 
for them." (A. 12 ). The court noted that the Board had
forwarded two defenses to this segregated situation, one of them 
being "that it was not feasible ... to obtain the proportion of 
whites to Negroes prescribed." (Id.) Responded the court to 
this defense: "This, of course, represents a misunderstanding of
the import of our order. Simply because the prescribed proportion 
cannot feasibly be obtained is not an excuse, under our order or 
the Supreme Court's opinions, for not effecting the desegregation 
that is feasible." (A. 12-13 ).

2/(concluded)without the benefit of state funds, in their discretion 
to pupils who live closer to their school than 1 1/2 miles. The law 
permits a one-way transit time of 1 1/2 hours to transport a pupil 
to his school. (Tenn. Code Ann. §49-2203). The "Annual Statistical 
Report" of the Tennessee State Department of Education shows that 
for the school year ending in June, 1969, there were 19,971 Shelby 
County pupils enrolled for transportation at an operating cost of 
$652,204.71, or a per capita cost of $35.39 for the school term.
Of this cost the State paid $311,946.00, or $15.62 per capita.

7



The other defense offered by the Board was "somewhat more 
complicated" (A. 13 ), but simply stated it was "white flight"
and "community hostility."!/ The Board argued "that if a school 
is desegregated in such a manner that white pupils are in a 
minority or even in a slight majority, the school will gradually 
but certainly become an all-Negro school due to the departure of 
white pupils ... [but] if the school is desegregated in such a 
manner that it has a substantial majority of white pupils, it 
will stabilize and remain a desegregated school." (A. 13 ).
The Board further rationalized that "in the not-too-distant future" 
enough whites would move into areas where Negroes now live "to 
allow the desegregation of schools there with a substantial 
majority of white pupils ... [but] if this [District] Court now 
requires white pupils in these areas to attend predominantly Negro 
schools, not only will these white pupils desert these schools ... 
but also the development of white suburbs in these areas will not 
occur." (Id.) In response to this unconstitutional justification 
for segregated public education, the District Court, citing 
Monroe, held that "the fact that white pupils will either move or 
attend private schools is irrelevant. In short, the law requires 
that we present these white pupils with the options of attending 
these schools, or moving, or attending private schools." (A. 14 ).
The court required the defendant Board to file on January 15, 1970,

3/Cf. Cooper v. Aaron, 358 U.S. 1 (1958); Watson v. City of Memphis, 
373 U.S. 526,"534 (1963); Monroe v. Board of Comm'rs. of Jackson, 
Tenn., 391 U.S. 450, 459 (1968).

8



a new plan of desegregation in accordance with the addendum.
The defendant Board filed appeals from both the May 26, 1969 

and the October 1, 1969 opinions of the District Court. On 
November 14, 1969, following the Supreme Court’s October decision 
in Alexander v. Holmes County Board, 396 U.S. 19 (1969) , plaintiffs 
filed in the District Court a "Motion to Require Adoption of 
Unitary System Now." On December 15, 1969, the District Court 
entered a memorandum decision and order (A. ) denying the
motion on the basis that Alexander was inapplicable where "there 
has already been accomplished great progress in desegregation of 
pupils and faculty and, more importantly, there is no alternative 
plan in existence."i/ The plaintiffs, while the Board's appeals 
were still pending in this court, filed an appeal from the District 
Court's denial of the Alexander motion.5./

Plaintiffs' appeal and defendants' appeals were consolidated 
and argued before this court after new desegregation plans had 
been submitted to the District Court (as requested) on January 15, 
1970, by the Board and the Title IV Center. On the motion of 
plaintiffs, this court, on June 25, 1970 (A. 33-36 ), dismissed

4/Cf. Northcross v. Board of Education, 397 U.S. 232 (1970) , where 
thi~~Supreme Court reversed a similar finding by a panel of this 
court regarding the Memphis City Schools.
5/In the opinion appealed from, the District Court incorrectly 
states in a footnote (A. 23 ) that plaintiffs "did not perfect
their appeal."

9



both appeals because the 1969-70 school year had ended and the 
District Court had before it new plans of desegregation and had 
entered the opinion and order which is the subject of the present 
appeal.

As noted above, on January 15, 1970, the Board and the Title 
IV Center filed separate desegregation plans. The plaintiffs, 
after receiving a ten day extension, adopted the Center's plan.
On February 3, the Center submitted several amendments to its 
plan. A hearing was held February 10-12 and subsequently the 
Center, defendants and the United States submitted post-trial 
"position letters" to the court. On April 6, 1970, the District 
Court entered the opinion appealed from, which opinion, in one 
giant step backward, approved, with one minor e x c e p t i o n t h e  
Board's proposal as to zoning on the theory that "a school system 
that has honestly drawn unitary geographical zone lines, that is, 
zones not gerrymandered to preserve segregation, and that severely 
limits transfers ... is not a ’dual system' with respect to 
pupils." (A. 25 ). The plan is to be implemented by September
1970 for grades 1-11, with grade 12 frozen in current attendance 
patterns.

The District Court justified its departure from (indeed, its 
reversal of) its previous opinions by concluding that "it is not
for this court to determine the wisdom or lack of wisdom of a

6/The minor exception involved the racial gerrymandering of the 
zone line separating E. /•.. Harrold and Millington Central elementary 
schools. (A. 23 )•



particular proposal of the defendant Board; it is for us to 
determine only whether or not it is constitutional." (A. 26 ) ! /

The court's new vision of the Fourteenth Amendment test of consti­
tutionality requires only that zone lines "not [be] gerrymandered 
to preserve segreaation." (A. 25 )£/ The court further con­
cluded that under this new "unitary" zoning plan "no pupil will 
be allowed to attend a school outside the zone in which the pupil 
lives" except for very limited "administrative or educational 
reasons." (A. 31 ) <L /  * 9

7/Despite the court's deferral to the Board's "wisdom," the court 
still refused to approve the Board's willingness to keep the 
Capleville 78 and Eads elementary schools open. (A. 27 ).
8/The court arrives at this new test (and it is indeed "new", as 
It appears in no post-Green decision of any other court that we 
are aware of) by leapfrogging its previous interpretations regard­
ing the affirmative duty of the defendant Board to dismantle its 
dual system, and coming to rest with this court's short-lived 
opinion in Northcross (January 12, 1970) and the Chief Justice's 
concurring remarks IH the Northcross reversal (397 U.S. 232, (March
9, 1970)) to the effect that the Supreme Court has not decided that 
"racial balance" is required. The Chief Justice's concurring 
opinion, however, does not support the District Court's refusal to 
require desegregation. Furthermore, as pointed out in the Argument, 
infra, plaintiffs have not and do not seek racial balance - just 
substantial desegregation of every school. The District Court does 
quote the Alexander definition of "unitary" (A. 23-24 ), but to
what effect we are unsure, as the "unitary" test arrived at by the 
District Court cannot be even remotely related to the Alexander 
mandate.
9/This is actually a reversal of the previous order which provided 
for majority-to-minority transfers for the purpose of furthering 
desegregation. (A. 10 ).

11



B. STATEMENT OF FACTS
The court below found that under the approved plan the 

Shelby County school system would be composed of 30 elementary 
schools and 8 secondary schools. (A. 26-27 ). According to
the "Elementary Projection Data" filed with the court on January 
15, 1970, the 30 elementary schools will enroll 15,677 students, 
of which 5,379 (34.3%) are black. The "High School Projection 
Data - Grade 9," filed with the court at the same time, shows 
a projection of 1,625 ninth grade students, of which 546 (33.6%) 
are black.!£/ One elementary school (Brownsville) is 100% white, 
and one elementary school (White's Chapel) is 100% black.
(A. 26 ). Of the thirty elementary schools, six (Barret's
Chapel, Capleville, Harrold, Mt. Pisgah, Shadowlawn and White's 
Chapel) are over 75% black, in a system which is only 34% black; 
and six (Brownsville, Coleman, Egypt, Millington South, Riverdale 
and Raleigh Bartlett Meadows) are 90% or more white, in a system 
which is only 66% white. Of the 8 high schools!!/ (on the basis

10/Although there is testimony in the record concerning enrollment 
fTgures, the projection data referred to in the text is the only 
documentary evidence in the record. The 10, 11 and 12 grade data 
was not presented by the Board, since the Board's plan contemplated 
that 10, 11 and 12 grade students would continue to attend the 
school previously attended. The court limited this exception to 
grade 12, however. (A. '30 ). The data presented in the projec­
tion data for grades 1-9 is sufficiently accurate to present a true 
picture of the plan approved below, the limited modifications made 
by the court being relatively insignificant.
11/There are 9 schools listed in the "High School Projection Data - 
Grade 9," but the court ordered one of them (Woodstock) closed.
(A. 27 ) .

12



of the 9th grade data), two (Barret's Chapel and Mt. Pisgah) 
are 65% or more black and one (Raleigh Egypt) is 87% white, in 
a system which is 66% white and 34% black.

There are some significant differences between the Board's 
plan, as approved by the District Court, and the Title IV Center's 
plan, which was rejected by the District Court. These differences 
are set forth in the following table:

13



T
Title IV 

Center Plan
T

Reason for 
DifferenceSchool - Capacity

Board-Court
____Order Plan
Grades W B Grades W B

Harrold 780 1-8 42
Millington-Central 585* 1-8 679

b .
Coro Lake 
White's Chapel

485
485

1-8
1-8

342
0

c .Caplevilie-Shelby 
Germantown

1245
1040

1-8
1-8

50
466

250 292** 1-4 or 456 236 692
859**

5-8
180 1-4 or 456 236 692

5-8

151 493*** 1-4 275 265 540
382 382 5-8 275 265 540

199 249 1-8 96 211 307
396 862 1-8 420 385 805

*Additional capacity available at the adjacent Millington High 
School plant.

**The court ordered a slight modification in the Board's proposed 
plan but as it affected only about 50 whites living in a ’trailer 
park who could move to another park across the road to shift 
zones.

***The apparent numerical discrepancy is caused by the Center's
inclusion of some 200 odd students (all white) who live in these 
zones but will attend city schools under the Board's proposal. 
There are several available portables to solve the capacity 
problem.

Paired

Paired

Change 
caused by 
Center's 
zoning 
approxi­
mately 4 6 
white and 
12 Negro 
students 
to a 
school 
over 3 
miles 
closer to 
their 
homes.



These differences arise largely in those areas of Shelby County 
containing the highest percentages of black residents, which were 
previously contained in the defendant Board's dual overlapping 
zones. The differences between the Center's plan and the Board's 
plan are the product of the Center's utilization of such valid 
techniques as contiguous zoning or pairing designed to maximize 
the desegregated learning experiences for an optimum number of 
pupils.

In proposing the plan approved by the District Court, the 
defendant Board premised its plan on the erroneous interpretation 
of the District Court's previous orders as meaning that desegrega­
tion is irrelevant. (Tr. 215). The system's Superintendent, 
George Barnes, testified that a unitary system was one in which 
students were assigned to the school closest to their residence. 
(Tr. 180) Furthermore, according to Superintendent Barnes,
"the degree of desegregation (doesn't] enter into unitary zoning." 
(Tr. 362). The Board's plan was further founded on the theory

12/The Board's plan does not bear out this premise, however, as an 
examination of the map exhibits clearly demonstrates that in prac­
tically every zone there are pupils assigned to one school who 
live closer to another school in an adjacent zone. For example, 
the pupils living in the southwest portion of the Germantown 
elementary zone live much closer to the Capleville school. Students 
in the western portion of the Mt. Pisgah zone must proceed some 3 
miles further to school after passing within a block of the Cordova 
school. Students living within a mile of Millington East attend 
school at Barret's Chapel some six miles away. And so on ... .

15



that desegregation would not work unless each school had at least 
60-65% white student bodies. (Tr. 244-45). Superintendent Barnes 
stated that a major effort in the plan was to keep predominantly 
white schools wherever possible. (Tr. 351). The Board was thus 
preoccupied with "accommodating the sentiments" of the community. 
(Tr. 2.44 , 282-83). The Board's attitude by the statement of the 
Superintendent that "this area [Barret's Chapel, Bolton] has 
maintained two schools for forty years or more, and there is no 
reason why it can't do it for another year ... " (Tr. 198).

The District Court noted one example of racial gerrymandering, 
i.e., the zone line separating Harrold and Millington Central 
elementaries. (A. 28 ). Dr. Myer, the Title IV Center's
expert noted at least one other zone line in the Board's plan 
which separated a black and a white neighborhood: the Riverdale-
Shadowlawn boundary line. (Tr. 411, 469). With further reference 
to the Riverdale zone, it is interesting to note that this zone 
is in effect a non-contiguous zone, although both the Board and 
the District Court purport to disapprove this method of zoning.
The northwest corner of the Riverdale zone is completely cut off 
from the much larger southeastern portion (which contains the 
school) by the Shelby County Penal Farm which spans the entire 
breadth of the Riverdale zone and which contains no through roads, 
thereby requiring students in the northwest corner to be trans­
ported around the Penal Farm through other zones to get to the 
Riverdale school. Long transportation routes are not unusual in

16



the defendant system, however. Last school year, under the free 
choice plan, the Board transported, for instance, a number of 
white pupils 14 or 15 miles to avoid attending a black school. 
(Tr. 165-66). The system has also been busing black students 
long distances for a number of years to avoid having them attend 
white schools. (Tr. 304).

Dr. Myer testified that the Center's plan with respect to 
pairing Harrold and Millington (see chart, page 14, supra) would 
actually involve a decrease in the amount of busing then going 
on. (Tr. 472-73). The District Court agreed with Dr. Myer that 
in the northeastern part of the County desegregation could be 
accomplished without increasing the amount of transportation 
already being provided.

17



ARGUMENT

In its May and October, 1969, opinions, the District Court 
properly recognized that the Supreme Court decisions in Green, Raney 
and Monroe had buried the Briggs v. Elliott 13/ dictum forever. 
Nevertheless, in the opinion appealed from, rendered on April 6,
1970, the District Court resurrects the Briggs dictum, injects new 
life into that ill-conceived constitutional doctrine, and turns it 
loose in Shelby County, Tennessee. The only intervening occurrence 
between the District Court's October 1969 opinion and its April, 1970 
opinion was Alexander v. Holmes County Board, 396 U.S. 19 (1969), 
which lends absolutely no support to the District Court's new 
constitutional view that the Fourteenth Amendment only requires 
that a former dual system draw zone lines "not gerrymandered to 
preserve segregation." Alexander was not a retrenchment of the 
Green doctrine; rather, Alexander gave Green the mandate of 
urgency.

Under Green v. County School Board, 391 U.S. 430, 442 
(1968) , the obligation of every school system is to establish 
"a system without a 'white' scool and a 'Negro' school, but just 
schools." The objective is a school system without schools 
which are racially identifiable. Kemp v. Beasley, No. 19,782 
(8th Cir. Mar. 17, 1970) (per Blackmun, J.); Clark v. Board of

13/ 132 F. Supp. 776, 777 (E.D.S.C. 1955): "all that is decided 
Tby Brown ], is that a state may not deny to any person the right 
to attend any school that it maintains."

18



Education of Little Rock, No. 19,795 (8th Cir. May 13, 1970) (en
banc); Adams v. Mathews, 403 F. 2d 181 (5th Cir. 1968); Green 
v. School Bd. of City of Roanoke, Ho. 14,335 (4th Cir. June 17, 
1970); Whitley v. Wilson City Bd. of Educ., No, 14,517 (4th Cir.
May 26, 1970). The District Court, however, reached a contrary 
conclusion and held that former dual school systems had no 
affirmative duty to desegregate its schools. The District Court 
relied on this Court's opinion in Northcross v. Board of Education 
of City of Memphis, (January 12, 1970), which opinion was reversed 
by the Supreme Court (397 U.S. 232), on March 9, 1970. This 
Court's opinion in Northcross relied heavily on Deal v .
Cincinnati Board of Education , 419 f . 2d 1387. We submit however 
that the Deal approach to the Fourtheenth Amendment mandate is 
no longer valid in view of the Supreme Court's decisions in 
Northcross and Alexander. We find the reasoning of Circuit Judge 
Miller's opinion in Kelly v. Metropolitan County Board of Education 
of Nashville, Davidson County, Nos. 2094, 2956 (M.D. Tenn., July 
16, 1970; pupil portion of order stayed) (Slip Op. at 5-4), sound 
and compelling:

In Deal v. Cincinnati Board of Education, 419 F.2d
1387 (6th Cir. 1969) , the 6th Circuit Court of Appeals 

stated its adherence to a principle similar to that 
set forth in Briggs v. Elliott, supra, to the effect 
that there is no affirmative duty to integrate. See 
419 F.2d at 1390. The Sixth Circuit's position in 
Deal, however, seems to have been undermined by the 
opinion of the Supreme Court in Northcross v. Board 
of Education of Memphis, Tennessee, City Schools,
397 U.S. TT2 (1970), a more recent case also arising 
in the Sixth Circuit. After granting a writ of 
certiorari, the Supreme Court in Northcross declared

19



that the Court of Appeals erred in holding in­
applicable the rule of Alexander v. Holmes County- 
Board of Education, Supra. In view of the fact that 
Alexander and its predecessor, Green, clearly stand 
for the proposition that a school board has an affirm­
ative duty to integrate, there is strong reason to 
infer that the Court of Appeals for the Sixth Circuit 
would not now express the view that there exists no 
constitutional duty on the part of school authorities 
to integrate schools. Rather, it is the clear message 
of Alexander and Green that school boards everywhere 
are charged with the affirmative duty to establish a 
unitary school system at the "earliest practicable 
date." Horthcross v. Board of Education of the 
Memphis, Tennessee, City Schools, supra,'' at 235.

Yet, and in the face of its previous opinions of May and October,
1969, the District Court, ruling on a former dual school system,
held: "a school system that has honestly drawn unitary geographical
zone lines, that is, zones not gerrymandered to preserve segregation,
and which severely Units transfers..., is not a 'dual system' with
respect to pupils." This statement of the law is a clear reversal
of the previous opinions and orders entered by the District Court.
Thus the District Court has joined the School Board in creating
and maintaining segregated public education in Shelby County,
Tennessee, notwithstanding the fact that federally-sanctioned
segregation is proscribed by the Due Process Clause of the Fifth
Amendment to the United States Constitution. Bolling v. Sharpe,
347 U.S. 497 (1954).

In Alexander, supra, the Supreme Court ordered all dual 
school systems to "begin immediately to operate as unitary school 
systems within which no person is to be effectively excluded from 
any school because of race or color." The District Court has 
clearly misinterpreted the Alexander mandate. As Judge Oren Harris 
said in an order entered on December 15, 1969, following the Alexande

20



decision: "Although the record discloses that no student of the 
Strong School District is 'excluded' from either of its two schools, 
the District was and is effectively operating dual schools."
Christian v. Board of Education of Strong School District Ho. 83 
of Union County, No. E.D. 68-C-5 (W.D. Ark. 1969) (emphasis added). 
Like the Strong School District, the Shelby County School system 
is effectively operating dual schools. Any other approach ignores 
the affirmative duty requirement to disestablish every vestige of 
school segregation set forth in Green v. County School Board of New 
Kent County, supra, and ignores also the en banc decisions of the 
Fifth Circuit in Jefferson I: "The only adequate redress for a
previously overt system-wide policy of segregation directed against 
Negroes as a collective entity is a system-wide policy of integration. 
United States v, Jefferson County Board of Education, 372 F.2d 836,
869 (5th Cir.) aff'd. on rehearing en banc, 380 F.2d 385 (1966), 
cert, denied sub non, Caddo Parish School Bd. v. United States,
389 U.S. 840 (1967) (emphasis in original).

Thus a school district may not permissibly continue 
its past discriminatory assignment policies by the present appli­
cation of "neutral" standards which do not achieve the result of 
dismantling the dual system. This is true whether the method used 
is free choice, transfer or geographic zoning. Otherwise "the 
equal protection clause would have little meaning. Such a position 
'would allow a state to evade its constitutional responsibility by 
carve-outs of small units.'" Haney v. County Bd. of Educ. of Sevier 
County, 410 F .2d 920, 924 (8th Cir. 1969). See Dowell v. School

21



Bd. of Oklahoma City, Civ. No. 9452 (W.D. Okla., Aug. 8, 1969), 
aff'd. 396 U.S. 296 (1969); Keyes v. School Dist. No. 1, Denver,
303 F.Supp. 279, 289 (D. Colo.), stay vacated, 396 U.S. 1215 (1969) 
(Hr. Justice Brennan, in Chambers); Henry v. Clarksdale Municipal 
Separate School Dist., supra; United States v. Greenwood Municipal 
Separate School Dist., supra; Valley v. Rapides Parish School Bd., 
No. 29237 (5th Cir., March 6, 1970); United States v. Indianola 
Municipal Separate School Dist., supra; Cato v. Parham, 297 F.Supp. 
403, 409-10 (E.D. Ark. 1969); Swann v. Charlotte-Mecklinburg Bd. 
of Educ., 300 F.Supp. 1358 (W.D. N.C. 1969) ; Spangler v. Pasadena 
City Bd. of Edue., Civ. No. 68-1438-R (C.D. Cal, March 12, 1970).

In the latest decision in Brewer v. The School Board of 
the City of Norfolk, Va., #14,544 (4th Cir. June 22, 1970) the court 
rejected a contiguous zoning plan although it produced more de­
segregation than the Shelby County plan, and required the use of:

"reasonable methods of desegregation, including 
rezoning, pairing, grouping, school consolidation, 
and transportation." (slip op. p. 10).
As Judge Miller said in Kelly, supra: "No concept of

zoning, including the concept of 'neighborhood school attendance
zones,' is constitutionally defensible if employed in such a way
as to minimize pupil integration of schools."

In 1954 the Supreme Court held in Brown v. Board of
Education that "Separate educational facilities are inherently
unequal." Yet Shelby County did nothing and even as late as the
1968-1969 school year less than five per cent of the pupils in
the system attended desegregated schools. The present record,

22



heardly measures up to the constitutional requirement that dual 
school systems affirmatively disestablish their segregated pattern 
of pupil assignments. That mandate does not permit twelve racially 
identifiable elementary schools and three racially identifiable 
secondary schools, (which schools were segregated in 1968 and in 
1954). Now does the mandate permit a school system and a District 
Court to avoid the use of such valid educational technics as pairing 
(such as those extremely feasible proposals made by the Title IV 
Center) on the ground that "it is not for this court to determine 
the wisdom or lack of wisdom of a particular proposal of the defend­
ant Board." Nor is it proper for a school board which already 
transports the great majority of its pupils to school to fail to 
utilize such busing to disestablish racially identifiable pattern of 
pupil assignments. See Judge (now Justice) Blackraun's opinion in 
Kemp v. Beasley, supra.

The defendant Board strongly urged upon the District Court 
that integration would not work unless a desegregated school con­
sisted of a white majority. For all that appears the District Court 
succumbs to this argument. A similar argument was urged on the 
Fourth Circuit in Brewer v. School Board of City of Norfolk, supra, 
and in Brunson v. Board of Trustees of School District No. 1 of 
Clarendon County, South Carolina, No. 14,571 (4th Cir. June 5, 1970). 
The concurring opinion of Judge Sobeloff in Brunson deserves special 
consideration, as it meets that issue head-on and finds the School 
Board's "white majority" proposal wholly lacking in constitutionality

23



There have always been those who believed that 
segregation of the races in schools was sound 
educational policy, but since Brown their reason­
ing has not been permitted to withstand the 
constitutional command. When the underpinnings 
of the white majority proposal are exposed, they 
are seen to constitute a direct attack on the 
roots of the Brown decision.

*  *  *  *

It would, I am sure, astonish the Brov/n court 
to learn that 16 years later ... it was seriously 
being contended that desegregation might not be 
required insofar as it threatened to impair the 
majority white situation. My conviction comes 
not only from the reading of the Brov/n opinion 
itself but from a conspectus of over 100 years 
of constitutuional adjudication.
Judge Sobeloff began his consideration of the constitutional 

history underlying Brown with an analysis of Dred Scott v. Sanford,
60 U.S. 393 (1856), which opinion "offered a justification for 
the slave system and al1 its incidents" and "which is at once the low 
mark and the focal point of the constitutional history of the rights 
of black Americans." Judge Sobeloff then notes that although " [the] 
Thirteenth, Fourteenth and Fifteenth Amendments were the explicit 
and total repudiation of the Dred Scott teaching," the Supreme 
Court later found in Plessy v. Ferguson, 163 U.S. 537 (1896) , "no 
violation of the Constitution in State-enforced ’separate but 
equal' facilities."

"The significance of Brown," says Judge Sobeloff, "must 
be appraised against this background. Certainly Brown had to do 
with the equalization of educational opportunity; but it stands 
for much more. Brown articulated the truth that Plessy chose to 
disregard: that relegation of blacks to separate facilities

24



represents a declaration by the state that they are inferior and 
not to be associated with. By condemning the practice as 'inherently 
unequal,1 the Court, at long last, expunged the constitutional 
principle of black inferiority and white supremacy introduced by 
Dred Scott, and ordered the dismantling of the''impassible barrier1 
upheld by that case." The 1 invidious nature" of the white majority 
thesis, says Judge Sobeloff, "at bottom ... rests on the generalizati* 
that, educationally speaking, white pupils are somehow better or 
more desirable than black pupils. This premise leads to the next 
proposition, that association with white pupils helps the blacks and 
so long as whites predominate does not harm the white children.
But once the number of whites approaches minority, then association 
with inferior black children hurts the whites and, because there 
are not enough of the superior whites to go around, does not 
appreciably help the blacks." Noting that this white majority 
thesis is "founded upon the concept that white children are a 
precious resource which should be fairly apportioned ... [and] 
because black children will be improved by association with their 
betters" Judge Sobeloff points out that "[c]ertainly it is hoped 
that under integration members of each race will benefit from 
unfettered contact with their peers. But school segregation is 
forbidden simply because its perpetuation is a living insult to 
the black children and immeasurably taints the education they receive 
This is the precise lesson of Brown. Were a court to adopt the 
[white majority] rationale it would do explicitly what complusory 
segregation laws did inplicity."

In response to the dissenting opinion fear of "white

25



flight," Judge Suboleff reached the same conclusion that the 
District Court in this case reached in its October, 1969 opinion 
(now abandoned): "I, too, am dismayed that the remaining white
pupils in the Clarendon County Schools may well now leave. But 
the road to integration is served neither by covert capitulation 
nor by overt compromise, such as adoption of a schedule of 'optimal 
mixing.'"

26



CONCLUSION

After which they consult Precedents, 
adjourn the Cause, from Time to Time 
and in Ten, Twenty, or Thirty Years 
come to an Issue.

Gulliver's Travels 
Jonathan Swift

This suit was originally filed in 1963, but in 1970, 
after seven years of litigation (and 16 years after Brown) plaintiffs 
come to this Court seeking a unitary school system now. The question 
presented here is whether the Shelby County, Tennessee, school 
system, with the aid of the United States District Court, can con­
tinue its oath of allegiance to Plessy v. Ferguson in the face of 
Brown and Alexander. We submit that it cannot, and for the foregoing 
reasons plaintiffs respectfully raove the Court to set this cause 
down for an expedited hearing, reverse the judgment of the District 
Court and remand the case with the following order:

1. This case shall receive the highest priority.
2. The District Court shall forthwith order the 

defendant school board to prepare and submit 
within 15 days a plan for the elimination of 
the racial identity of the student bodies of 
each school in the defendant system for the 
remainder of 1970-71 school year. The plan 
shall utilize, wherever necessary, every 
method of desegregation, including rezoning with 
or without satellite zones, pairing, grouping, 
school consolidation and transportation. See:
Swann v. Charlotte-Ilecklenberg Board of Ed­
ucation , No. 14,E>15 (4th Cir. May 26, HT777)
(Slip Op, p.20, 23, 25); Brewer v. School 
Board of City of Norfolk, supra.

27



3. Pending approval of a new plan, all new 
construction or additions to buildings 
shall be enjoined pending a reevaluation 
in accordance with the new plan and the 
Board's affirmative duty. Sloan v. Tenth 
School District of Wilson County, Civ.
No. 3107 (M.D. Tenn. Oct. 16 , 1969) .

4. Upon the filing of the Board's plan, 
plaintiffs shall have five days in which 
to file objections.

5. The District Court shall hold such hear­
ings as may be necessary on any objections 
and shall in conformance with this order 
require the implementation of the plan 
meeting these requirements no later than 
the start of the second semester of the 
current school year.

Respectfully submitted

William E. Caldwell 
Walter L. Bailey, Jr.
Russell B. Sugarmon, Jr. 
RATNER, SUGARMON & LUCAS
525 Commerce Title Building 
Memphis, Tennessee 38103
Jack Greenberg 
Norman J. Chachkin 
10 Columbus Circle 
New York, New York 10019
Attorneys for Appellants

28



CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Brief of 
Appellants was served on Mr. Lee Winchester, Jr., Attorney for 
Appellees by placing the same in the United States mail, postage 
prepaid, on the 8th day of October, 1970, addressed to him at his 
office, Suite 3200 100 Worth Main Building, Memphis, Tennessee
38104.

/jJtM**, £ C M uj£j2?
William E. Caldwell

29