Northcross v. Memphis City Schools Board of Education Brief for Cross-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

NO. 72-1631

DEBORAH A. NORTHCROSS, et al.,
PIaintiffs-Cross-Appellants, 

V.
BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Cross-Appellees.

Appeal from the Unitpd States District Court for the 
Western District of Tennessee, Western Division

BRIEF FOR CROSS-APPELLANTS

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
URAL B. ADAMS, JR.

Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Cross-appellants



TABLE OF CONTENTS

iJ
t Table of Cases

Issue ^resented for Review 

Statement of the Case
The District Court's Alternatives 

Plan A 
Dlan B
Plaintiffs' Plan

Argument
Conclusion
Certificate of Service

1
2

5
5
8

11
lli
26

27

ii

b



TABLE OF

Alexander v. Holmes County 3d. of 
Educ., 396'"’!.3. 19 (i960)

Acree v. County 3d. of Educ. or Richmond
County, 3a., Ia5- F.2d [;66 (5th Cir. 1972)

3radley v. School 3d. of Richmond,32? F.
Sunn. 6-26 (E.D. Va. 1971)

Bradley v. School 3d. of Richmond, 317 
F. Sunn. Va. 1970)

Brev;er v. School 3d. of Norfolk, u56 F.2d 
9h3 (Jjth Cir.), cert, denied,
U0 U.S.L.V,’. 35LV7l972)

Brown v. Board of Educ., 3^9 U.S. 291; (1955)

Carter v. West Feleciana Parish School 3d., 
3*51U.3 .  226 (1969),"290  (1970)

Cisneros v. Corpus Christi Indeoendent School 
List., liOh 'J.S. 1206 (197H

Davis v. Board of School Comm'rs of Mobile 
County, U02 U.S. 33 (1971)

Davis v. Board of School Comm'rs or 'obile 
County, L30 *.2d ^ 3  (5th Cir. 1?70)

Edgar v. United States, bob U.S. 1206 (1971)

Kelley v. Metropolitan County Bd. of Educ., 
No. 71-!77TrTSth Cir., May 30, 1072)

Mannings v. Board of °ublic Instruction of 
Hillsborough County, 127 P.2d Q7li 
Thth Cir. 1970)

'ano v. Board
bunn. 137T

nduc. o f  C h a tta n o o g a ,  329T
anneal oending

"197177

Page

21, 25 

2b

22

21

22

20

21, 22

2b

2, 1;, 17, 16

17
2U

21, 22

17

1 enn
21, 2b



Nortbcross v. Ponrd of ,
397 I!.3. 232 (1?70)
lilih F.2d 1179 (6th Cir. 1971)
L20 * . ?A 51.6 (6th Cir. 1969)

Swann v. Chnvlctte- ̂ cklenbur? 19. cf -.due.,
1-02 U.3. 1 (l°7lT

Swann v. Cha-,Iottc-''ecFlenbur~ -d. nf Sduc., 
311 F. Sun j. 269 (E.~.".C. 1970)

16, 21 

2

18

2, h, 19, 20, 21

sun j 22



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 72-1631

DEBORAH A. NORTHCROSS, et al. ,
Plaintif fs-Cross-Appellants ,

vs.
BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Cross-Appellees.

Appeal from the United States District Court for the 
Western District of Tennessee, Western Division

BRIEF FOR CROSS-APPELLANTS

Issue Presented for Review

Whether the district court, having approved a plan 
for September, 1972 implementation which is insufficient to 
eliminate state-imposed segregation in the public schools, 
erred in failing to include in its decree a firm and expedited 
schedule for completion of the additional steps necessary to 
establish a unitary school system in Memphis.



STATEMENT OF THE CASE

The procedural history of this school desegregation 
case, which commenced March 31, 1960, is set forth in detail 
in Appendix A, attached hereto. This latest round of 
appellate litigation results from district court proceedings 
and adoption of a new desegregation plan for defendant 
system pursuant to this court's remand of June 7, 1971 for 
reconsideration by the district court in light of Swann v. 
Charlott.e-Mecklenburg Bd. of Educ. , 402 U.S. 1 (1971) and 
Davis v. Board of School Comm'rs of Mobile County, 402 U.S.
33 (1971). Northcross v. Board of Educ. of Memphis, 444 
F. 2d 1179 (6th Cir. 1971) .

Following this court's June 7 remand, the 
district court, after various interlocutory proceedings, 
including designation of an HEW team to prepare a consti­
tutional plan of school operation for Memphis, conducted an 
evidentiary hearing beginning November 15, 1971, to resolve 
defendants' contention that they were not responsible for
existing school segregation and were not constitutionally

1/required to effect more pupil desegregation. The district 
court, by memorandum decision and separate judgment entered 
on December 10, 1971, held that defendants had not carried

1/ Defendants' position contained one execution: they
conceded that the all-black Lester (1-12) and Carpenter 

(1-3) schools, which are surrounded on three sides by white 
schools, are vestiges of the dual school system. (Transcriptof November 15, 1971 hearinq at d p . 15.9 , 739-40).

2



their burden of establishing that the large number of one-
2/race schools was not the result of their historic operation

of a dual school system. The district court directed the
HEW team to prepare two plans of desegregation, pursuant to
stated criteria, for the court's consideration (Dec. 10 Od .

1/at 16-17).

The HEW team was subsequently relieved of its
function in the litigation because of a change in national
administrative policy, and responsibility for preparation
of the two plans called for in the district court's December
10 decision was placed upon defendant Board (see Appendix
A at 14a-15a) , which assigned a team from its administrative
staff to comply with the district court's directive. The
Board's recommendation, a document entitled "Court Ordered
Plan A and Plan B," was filed along with a proposed plan of
plaintiffs on March 3, 1972. Thereafter, the court allowed
defendants to file three additional submissions and conducted
an evidentiary hearing beginning March 28, 1972 on all of

1/the alternatives before the court. Defendants took the

2/ For "guidance," the district court, by pretrial order of 
November 8, 1971, defined "virtually one-race schools" as 

those schools wherein the predominant race was more than 90% 
of the enrollment.
3/ The district court's December 10 memorandum decision is 

as yet unreported, as is the April 20, 1972 decision.
Four conies of the decisions and implementing orders are 
being separately filed with this brief. Citation to the 
December 10 Memorandum Decision will be in the form "Dec. 10 
Op." followed by the page reference, and the April 20 Memor­
andum Decision will be similarly cited ("April 20 Op.").
4/ Prior to the November 15, 1971 hearing defendants, at the 

direction of the district court, filed "The Memphis Plan,' 
representing their views of their constitutional obligations(cont'd)

3



absolute position that they should not be required to im­
plement any plan which would entail the transportation of

5/even a single pupil (II Tr. 5).

The district court entered its memorandum decision 
on April 20, 1972 adopting Plan A for September implementa­
tion. The court concluded that Plan A, although it effects 
no changes in the greater number of one-race schools, "meets 
the test of practicalities with regard to time of implemen­
tation and costs in the light of circumstances existing at 
this time." (Anril 20 Op. 23). Although the court held that

Plan A will afford the defendant Board an 
opportunity to implement a system of 
transportation for its students, and there­
by afford the defendants with an opportunity 
to observe the best ways and means for 
implementing further desegregation in the 
future

(id.), the court did not require defendants to take the 
further steps necessary to complete desegregation, and did 
not establish a timetable therefor.

4/ (cont'd)
under this court's remand and Swann and Davis. The 
district court rejected this proposal as "more propaganda 
than substance and [which], therefore, should not be 
considered as a desegregation nlan which would meet the 
requirements of Swann and Davis and the remand of the Court 
of Anneals." (Dec. 10 On. 18). Nevertheless, defendants 
were allowed, over plaintiffs' objections, to make a record 
on "The Memnhis Plan" at the March 28 hearing (II Tr. [see 
n.5 infra] 57-58). The district court thus had seven 
alternatives before it.
5/ Transcripts of the various hearings in this cause are

referenced in the following manner: "I Tr. __" refers to
the transcript of the hearing commencing on November 15, 
1971; "II Tr. " refers to the March 28, 1972 hearing; 
transcripts of all other hearings and conferences will be 
referenced by the date on which the hearing or conference 
began -- c.g., "4/1/70 Tr. _." (The transcript of each

(cont'd)4



The district court's judgment was entered April 
21, 1972; defendants noticed their appeal on May 1 and 
plaintiffs noticed their cross-appeal on May 16, 1972.

The District Court's Alternatives 
During the 1971-72 school year defendant system 

enrolled 145,581 pupils, of whom 78,072 (or 53.6%) were 
black (I X 40). Of the 78,072 black students, 30,563 were 
enrolled in 100% black schools and 28,770 additional black 
students were enrolled in schools which were 98% to 99.9% 
black (ibid,). In all, 87.7% of the system's black students 
were enrolled in schools which were 90% or more black 
(Response to Requests for Admission, No. 74).

Plan A
Plan A, adopted by the district court for

September implementation, just begins to effect changes in
this pervasive pattern of racial isolation. Plan A, which

£/
is based upon the existing school zones, employs only the 
techniques of minor changes in some zones and pairing of 
some contiguous school zones, leaving unaltered the zones 
in areas of Memphis with the greatest concentration of 
black and white students. Not all students reassigned 
under the plan would require transportation, and some of

5/ (cont'd)
separate hearing or conference in this case is paginated 
consecutively rather than by volume). Exhibits will be
designated in a similar manner, indicated by "X" -- e.a.,
"I X 99, "4/1/70 X 99. "
6/ Although this court suggested in its June 7, 1971 remand 

opinion that a pupil locator map be prepared for use in
(cont'd)5



the reassigned students to whom the plan proposes that 
transportation be furnished are still closer to their newly 
assigned schools than other Memphis DUDils unaffected by
the plan, who are not afforded transportation by the Board. 7/

Plan A was Drecared by three white members of
defendant Board's staff (II Tr. 87) in response to one of
the district court's December 10 directives:

One set of recommendations shall not have 
any minimum or maximum percentage factor.
It shall be based uoon the maximum use of 
pairing adjacent or nearby schools without 
transportation, changing zone lines of 
adjacent or nearby school zones, and closing 
some schools, plus the minimum use of trans­
portation of students by clustering, pairing 
noncontiguous zones, or other methods.
The term "minimum use of transportation" 
cannot be precisely defined by time or 
distance due to the size and location of 
streets, traffic congestion and other 
factors. The term is meant to refer to the 
use of transportation for certain particularly 
adaptable areas or situations, to the end 
that one-race schools shall be minimized.
The term is intended to mean less than city­
wide transportation. It could mean, if 
necessary, an initial phase of eventually 
overcoming one-race schools comoletely in 
conjunction with future construction, coupled 
with the future use of more transportation.

(Dec. 10 Op. 16).

6 / (cont'd)
developing a clan, defendant Board initially represented 
that compilation of such a map would require an inordinate 
amount of time and effort; in the hopes of expediting the 
matter plaintiffs agreed that proposed plans would be based 
upon the existing zones and enrollment information available.
7/ Some of the ouoiIs in this latter category attend schools 

annexed within the last several years from Shelby County; 
they rode-school buses while a part of the county system but 
such services are not provided by defendant Board, which has 
instead followed a policy of new construction of smaller 
schools in such areas.

6



Plan A leaves 80 schools with racial majorities
of 90% or greater (II X 48). [See generally II X 45, attached
hereto as Appendix B, which compares the projected results
of Plan A, Plan B and plaintiffs' proposed plan]. 40,219
black students and 28,480 white students will continue
under Plan A to attend schools which are 90% or more of
their respective race (II X 49). The Board estimates that
Plan A will require the transoortation of 13,789 pupils (II

8/X 17), or less than 10% of the system's 1971-72 total 
enrollment of 145,581.

Although the district court indicated that the 
"minimal transportation" plan it ordered prepared could 
utilize noncontiguous zones (Dec. 10 Op. at 16), the Board- 
developed Plan A effects only a limited number of contiguous 
pairs or clusters of schools (see II XX 1,2,3 [elementary,

yjunior high and senior high maps of Plan A] ).

8/ The document entitled "Court Ordered Plan A and Plan B,"
~ at page 85, estimates the number to be transported under 
Plan A at 12,686 with a breakdown of the number to be bused 
in each affected school. Exhibit 17 (a supplementary trans­
portation analysis and cost estimate filed as a Report to the 
court prior to the hearing) increases the estimate to 13,789 
but contains no school-by-school breakdown; the sources for 
this 1103 pupil increase in the estimate are thus unknown.
9/ It is to be noted that all schools shaded in yellow on 
~~ Exhibits 1 , 2 and 3 are not necessarily schools in which 
greater desegregation is effected by rezoning, pairing or 
clustering. For example, the Hawkins Mill and Bruce Elemen­
tary zones (II X 1) are shaded yellow but no pairing or zone 
changes are made, and White Station elementary zone is shaded 
yellow although the only change is the addition of more white 
students from the Campus (closed) zone.

7



The Board's employees ran a total of 83 sample 
routes between school zones paired under Plan A in order to 
determine the length of a bus ride from the farthest resi­
dential area in one school zone to the receiving school (II 
X 6). The raw data thus gathered was adjusted to include 
five minutes per run for an estimated five pickup point 
stops for loading, and to simulate the additional delays 
which might typically be encountered in rush hour traffic.
The longest such time, as adjusted (the longest time any 
single student might spend on a bus ride although many pupils 
would board later and spend less time riding) was 34 minutes 
and the shortest 8 minutes. The average for the 83 runs 
was 16.38 minutes.

Plan B
Plan B was prepared by the Board team in response 

to the second directive in the district court's December 
10 decision:

The other set of recommendations shall 
be based upon an attempt to desegregate 
all schools necessary to the maintenance 
of the system so that no school will have 
a minority race of less than 30%. This set 
of recommendations shall not be based 
entirely on busing. It, too, should make 
use of other desegregation methods before 
transportation is to be used.

(Dec. 10 Op. 16). However, Plan B fails even to affect every 
existing one-race school.

With only two exceptions (II Tr. 136-37) , Plan B
incorporates Plan A, and expands thereon through non-contiguous

8



pairing. Plan B leaves 13 elementary schools over 90%
10/

black, and 14 senior high schools (10-12) remain either 
more than 90% black (6) or more than 90% white (8) (II X 
45). Under Plan B, 55 schools (27 elementary and 28 
junior and senior high) have enrollments which contain 
less than a 30% minority population (ibid.; Appendix B infra).

The Superintendent testified that no attempt was
made to desegregate the 14 black elementary schools (see
n.8 supra) which were not affected by Plan B because to
include them in the plan would have changed to predominantly
black status other schools which the Board would under Plan

11/B be able to maintain as majority white (II Tr. 1281).

Another defect in the elementary portion of Plan 
B is that in a substantially disproportionate number of 
instances of pairing and clustering, the lower grades (1, 2

10/ The 13 elementary schools are: Alton (99.4%) , Caldwell
(100%), A .B. Hill (100%), Grant (98.7%), Florida (100%), 

Georgia Avenue (100%) , Kansas (100%) , LaRose (100%) , Leath 
(100%) , Locke (100%) , Longview (100%) , Mallory (90.9%) , and 
Riverview (100%). In addition, Plan B does nothing to 
affect Pope, which is 85% black (II X 45).

11/ The statistics reflect that of 87 elementary schools 
affected by Plan B, 51 are projected to be majority- 

white (see II X 45; Appendix B) in a system which is 
presently 56.4% black at the elementary level (II X 15).

9



and 3) are housed in the formerly white schools (II X 44) , 
with the discriminatory result that a disproportionate 
number of younger black children will be transported while
fewer younger white children will have to be bused (II Tr.

12/
808-09) .

The junior high portion of Plan B (like that of 
Plan A) involves the pairing of junior highs so that two 
grades (7—8 or 8-9) are housed at one school and the 
remaining grade housed at the other school in each pair. 
The Board team utilized this technique (rather than the 
technique used by plaintiffs plan which does not split 
junior high grades, see below) despite its opinion that 
splitting junior high grades is not educationally sound, 
and despite the possibility that such a grade organization 
could result in a loss to the Board of $1,000,000 in state 
education funds. (II Tr. 191, 195-97, 201-02).

Plan B does not effect any changes at the senior 
high schools which are not already affected by Plan A 
(which is incorporated into and forms the base of Plan B).

12/ Dr. Stephens, head of the Board team, testified that he 
had no knowledge of any grade distribution disparity as 

between formerly white and black schools. (II Tr. 90). In 
direct contradiction, two Board members testified that the 
subject had come up at at least one closed session of the Board 
at which the plans were discussed, and that Dr. Stephens 
advanced as one reason for the disparity the proposition 
that black students were more independent at an earlier age.
(II Tr. 1170 (Smith); II Tr. 1175 (Johnson)). Dr. Stephens 
did aqreo, however, that the disparity could be altered if 
the court felt it placed a disnrooortionate burden on black 
first, second and third graders. (II Tr. 90).

10



Of the 27 schools serving grades 10-12 in Plan B, 19 would
11/remain racially identifiable.

The Board made transportation time estimates for 
Plan B similar to those for Plan A (II X 6) by running an 
additional 93 routes for the noncontiguous pairs added by 
Plan B. The largest time was one of 58 minutes and the 
average for all 176 routes was 22.52 minutes.

The plan prepared by plaintiffs' experts, quite 
simply, desegregates all of the schools in the system. It 
is feasible and educationally sound and provides the only

14/meaningful remedy of all the alternatives in the record.
(II Tr. 891-900, 992-1012) (The olan is described in detail 
at II Tr. 901-985). The following table (from II X 50) 
reflects the differences in numbers to be transported under 
Plan B and plaintiffs' plan:

Grade Levels 
Elementary (1-6)
Jr. High (7-9) 
Senior High (10-12)

Plaintiffs' Plan 
32,417 
15,598 
13,515 
61,530

Plan B Difference
23,033 9,384
14,118 1,480

831 12,684
15/37,982 23,548

13/ The 19 are: Carber (99.9), Douglass (76.2), Hamilton (100),
Melrose (86.8), Mitchell (99.9), Southside (99.6),

Washington (99.9), Kingsbury (0.1), Messick (11.4), Oakhaven 
(6.7), Overton (0.1), Ridgeway (1.3), Sheffield (17.8),
Treadwell (20.2), Trezevant (3.1), Westside (0.1), Whitehaven 
(13.2), White Station (4.5) and Wooddale (0). (II X 45,
Appendix B at po. 66-75).

[Footnotes 14 and 15 are on the next page]

11



Plaintiffs' elementary plan, although it buses
9,384 pupils more than Plan B also thoroughly desegregates
all schools. (Compare supra the elementary segregation
which remains under Plan B). No claim is made anywhere in
the record that the additional busing under plaintiffs'
elementary plan is of such a nature as to risk the health
of children or significantly impinge on the educational
process. Dr. Stephens finds plaintiffs' plan equally
feasible (and, consequently, equally objectionable) to
Plan B. (II Tr. 151, 153). The times and distances
involved under plaintiffs' plan are comparable to those under
Plan R, and they are administratively and educationally

16/
feasible. (II Tr. 992-99; II X 56).

Plaintiffs' junior high plan is educationally 
preferable to the junior high portion of Plan B, and the 
additional expense which would be incurred in the small

14/ We have not mentioned the Board's alternative Plans I,
II and III, which propose very little desegregation and 

were summarily disposed of by the district court. See April 
20 On. 22.
15/ As with Plan A (see note 8, supra), the initial trans­

portation estimate for Plan B was increased in the 
supplementary Report to the Court (II X 17) to 39,085 
students, but there is no way of knowing the schools or grade 
levels which produce the 1103 student increase (although the 
increase obviously occurs in the Plan A portion of Plan B).
16/ As to the general feasibility of times and distances

between schools, see testimony of Carl Smith, 4/1/70 Tr. 
1125 et seq. (times based on Memphis Transit Authority runs 
in operation).

12



amount of additional transDortation more than offsets 
the pote?ntial loss of $1 million in state aid which could 
result in junior high Plan B. (II Tr. 195-97, 202-05, 
969-70).

Plaintiffs' senior high plan is the only plan 
m  the record which desegregates all senior high schools

13



ARGUMENT

The District Court Erred in Selecting 
A Plan for Implementation in September, 
1972 Which Does Not Eliminate Segregation 
In The Public School System And In Failing 
To Establish A Firm and Rapid Schedule For 
Implementation Of The Additional Steps 
Required To Establish A Unitary School System In Memphis

In its April 20, 1972 opinion accompanying the decree
from which this appeal is taken, the district court rather
frankly stated the bargaining process to which plaintiffs'
constitutional rights had been subjected:

In this case the Court has been faced with 
extreme opposite positions taken by the 
resoective oarties. On the one hand, it 
appears to the Court that the defendants 
have failed to recognize and acknowledge 
the interpretations of the Constitution 
which impose upon the defendants the duty 
to make every effort to achieve the greatest 
possible decree of actual desegregation. It 
further appears that the defendants have 
overemphasized solveable problems as "practi­
calities" which justify the continued operation 
of any effectively segregated system. On the 
other hand, it appears to the Court that the 
plaintiffs have overemphasized the guidelines 
of constitutional law, while failing to take 
into account the practicalities of the situation. 
Therefore, the Court has been called uoon to 
exercise its equity jurisdiction in favor of 
a plan between the two extremes.... (emphasTs supplied).

The compromise of plaintiffs' rights by the district 
court was not a surprise to the plaintiffs, as it was accu­
rately predicted in our post-trial brief submitted to the 
district court, where we said:

14



We do not attribute defendants' abdication 
of their responsibilities to a misunder­
standing of the law; rather, we recognize 
that there is reasoning and purpose behind 
defendants' position. As has been the case 
throughout the twelve years during which 
plaintiffs, via this litigation, have been 
vigorously seeking vindication of their 
constitutional rights, the Board denies 
any responsibility to take further action.
*̂he Board' s reasoning is that the greater 
the gap between their position and plaintiffs' 
P°5 j-1i°n > the less likely it is that the Court 
Wl1L order substantial relief7~ Thus,~reasons 
the Board, if they argue against any further 
desegregation (which they are doing) while 
plaintiffs seek complete relief, the Court's 
order will fall somewhere between the two 
positions. And m  this bargaining process 
defendants believe that the scope of the 
remedy afforded will be limited" by the quantity 
of their best offer. So they offer nothing, (emphasis supplied)

The issues before this Court on appeal, therefore,
are whether the district judge erred in approving Plan A for
September, 1972 implementation and in failing (once having
taken this step) to set forth the requirement that complete
desegregation take place thereafter within the minimum time

17/necessary to meet "the practicalities of the situation."

References in the opinion of the court below suggest 
its view that Plan A will not create a unitary school system

17/ While the record clearly would have supported a district 
court order requiring implementation of at least the 

elementary portion of plaintiffs' plan in September, 1972, we 
recognize that the passage of time, as well as this panel's 
stay order, make achievement of that result impossible even 
if the district court's order were reversed today. However, 
compliance with the terms of that order so as to implement 
Plan A and at long last begin the Process of meaningful 
desegregation in Memphis' is still feasible and will"remain

(Cont'd)

15



in Memphis, as required by the Fourteenth Amendment to the
Constitution and the decisions of this court and the Supreme
Court of the United States. Thus, for example, the court
follows its statement (April 20 Op. 29) that it believes
"the approved plan meets the requirements of the Constitution"
with its expressed hope that it "will afford the defendants
a means of ultimately achieving the goal of a desegregated
school system...." (emphasis supplied). The court earlier
concluded (April 20 Op. 23):

Upon consideration of all the plans, the 
proof offered at the hearing and the entire 
record in the cause, this Court is of the 
ODinion that Plan A, with certain modifica­
tions, meets the criteria established and 
required by the Constitution of the United 
States as interoreted by the authorities.
The practicalities of the existing situation 
in the City of Memphis limit the change in 
the plan of desegregation to this extent at 
the present time. Plan A will afford the 
defendant Board an opportunity to implement 
a system of transportation for its students, 
and thereby afford the defendants with an 
opportunity to observe the best ways and 
means for implementing further desegregation 
in the future. Plan A further meets the test 
of practicalities with regard to time of 
implementation and costs in the light of the 
circumstances existing at this time.

Since the district court does not explicitly 
establish a timetable for further implementation or development 
of a plan, or even announce the conclusion that Plan A will,

17/ (Cont'd)
feasible even after the scheduled oral argument in this cause. 
(See Aon. A at 17a-18a, and district court's "Order Overruling Motion for Contemnt" entered June 23, 1972).

16



if implemented, fail to completely satisfy the Constitutional 
requirements, we deal briefly with its inadequacies.

In the first place, the legal criteria under
which the plan was prepared were erroneous. The district
court had suggested in its December 10, 1971 opinion (p. 16)

18/
the preparation of two plans, one of which

shall be based uoon the maximum use of 
pairing adjacent or nearby schools without 
transportation, changing zone lines of 
adjacent or nearby school zones, and closing 
some schools, plus the minimum use of trans­
portation of students by clustering, pairing, 
noncontiguous zones, or other methods.

Plan A, which the court itself describes as having been
prepared "in response to" the above directive (April 20 Op.
16) was limited to contiguous zone changes and contiguous
pairing and clustering. This was precisely the artificial
limitation upon remedy which had been adopted by the United
States Court of Appeals for the Fifth Circuit and which was
rejected by the Supreme Court in Davis v. Board of School

19?Comm'rs of Mobile County, 402 U.S. 33 (1971). Thus, Plan A 
was based upon an unacceptable limiting principle in its very 
design and could not satisfy the constitutional requirements 
unless (fortuitously) the practicalities of the situation

18/ The suggestion was given as an instruction to the HEW 
team which had been requested by the court to prepare 

alternative desegregation plans for Memphis. The team later 
withdrew from participation in the case upon instructions 
from the United States government. See App. A at 14a-15a.
19/ See, c.n., Davis v. Board of School Comm'rs of Mobile

Cou’nt~'r, 4 30 —F. 2d 883 ( 5th Cir. 1970); Mannings v. Board 
of Public Instruction of Hillsborough County, 427 F.2d 874, 
87"7 n.2 (5th Cir. 1970) , and accompanying text.

17



made any further desegregation 
achieve. Of course, the Board 
these conditions did not exist

in Memphis impossible to 
itself demonstrated that

20/
by its submission of Plan B.

Even a cursory study of the results which are
anticipated under Plan A reveals its total inadequacy.
Appendix C to this Brief shows past, present and projected
student enrollment in Memohis schools which were completely

21/
segregated one-race schools in 1969-70. The table demon­
strates that as to these schools, which even the Memphis 
Board concedes were segregated schools in 1969-70, there had 
been very little actual desegregation by 1971-72. Each of 
these 56 schools remained either all one-race or virtually

20/ To be sure, the Board denies the "practicality" of Plan 
B. But this denial by the Board and its witnesses is 

based on opposition to any busing of pupils for desegregation, 
and not the tyDe of comparative analysis which the Supreme 
Court obviously had in mind in Swann and Davis when it spoke 
of the practicalities of the situation and busing which 
imoinges on the educational process or endangers the health 
of children. The absurdity of the Board's position is 
demonstrated by Dr. Stephens' (head of the team) testimony 
that a 5-mile bus trip imoinges on the educational process 
just as much as a 14-mile trip; that a short bus ride is just 
as objectionable, educationally, as a long one. (II Tr. 151, 
153) .
21/ The table is prepared in part from the 1969-70 enrollment 

statistics furnished to this Court prior to the oral 
argument in Northcross v. Board of Educ. of Memphis, 420 F.2d 
546 (6th Cir. 1969). The 1969-70 statistics submitted to this 
Court separated schools into two grouDs: integrated and
non-integrated (totally one-race) schools, and the original 
table for the latter group, as submitted to the Supreme Court 
of the United States in Nothcross v. Board of Educ, of Memphis, 
3 97 U.S. 232 (197 0) appears at the end of Appendix~C~!

18



all one-race schools in 1971-72. Plan A was to have no 
effect whatsoever on the racial composition of 34 of these 
schools. At two additional schools which serve more than 
one grade level, only one such level would be affected.
Even the remaining schools, at which Plan A would result 
in a different student population in 1972-73, can by no 
means be said to all be effectively desegregated.

Of the 34 one-race schools which would be completely 
unaffected by Plan A, 23 were virtually all-black schools in 
1971-72 and enrolled 24,388 black students, or 32.6% of the 
black pupils in the system (other than kindergarten and 
special education students, whose assignments will not be 
affected by Plan A). An additional 1112 black students were 
in grade levels of the two schools which were virtually all­
black in 1971-72 only some of whose grade levels would be 
reached by Plan A. Thus 25,500 (34.1%) black students 
attended virtually all-black schools or grade levels in 
1969-70 and 1971-72 which would not be affected at all by 
Plan A.

Eleven of the unaffected schools were all-white 
in 1969-70 and virtually all-white in 1971-72. These 11 
schools in 1971-72 enrolled 10,949 white students, or 16.9%

22/

22/ The token desegregation which did occur in some schools 
is largely accounted for by the faculty desegregation 

process and the privilege afforded teachers to enroll their 
children in the schools in which they taught.

19



of all whites in the system (exclusive of kindergarten 
and special education pupils).

As egregious as these figures are, they only 
begin to tell the story. II X 48 lists the 80 schools 
which under Plan A would be more than 90% of one race or 
the other, and II X 49 shows that 68,699 (or 47.4%) of 
Memphis students would remain in such schools under Plan A.

We think it is clear that the district court's 
action could only be sustained, if at all, as an interim 
measure adopted because of overbearing practical considera­
tions, primarily the nearness of the next school year, and 
we thus address the question whether the record will support 
the lower court's action on that theory.

It remains the school board's obligation, as it 
has always been, to establish reasons justifying any delay 
in implementing full desegregation, Brown v. Board of 
Education, 349 U.S. 294 (1955) or to demonstrate why consid­
erations of practicality make effective desegregation of any 
particular school or schools impossible, Swann v. Charlotte- 
Mecklenburg Rd. of Educ., 402 U.S. 1 (1971). The Memphis 
Board never attempted to meet its burdens in this case; it 
adopted the position, in spite of the clear imperatives of 
Swann and companion cases, that any use of pupil transportation 
was, in the opinion of its administrators, harmful to the

20



educational process and should therefore be proscribed 
as part of a desegregation plan. The district court pro­
perly rejected this position. See Kelley v. Metropolitan 
County Bd. of Educ., No. 71-1778 (6th Cir., May 30, 1972).
The average times for bus routes, from start to finish, under 
Plans A and B, of 16 and 22 minutes, respectively, can 
hardly be said to seriously affect the process of education. 
Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 
30 (1971).

While it is clearly proper for a district court to
permit staggered implementation of a plan to convert from a
dual school system to a unitary one in order to permit the
necessary acquisition of transportation facilities, see Mapp
v. Board of Educ. of Chattanooga, 329 Supp. 1374, 1388 (E.D.
Tenn. 1971) , appeal pending, or to approve an inadequate plan
on an interim basis because it represents the maximum which
can be achieved at a given moment in time, see Bradley v.
School Board of Richmond, 317 F. Supp. 555 (E.D. Va. 1970),
in such instances the Constitution and application of the
doctrine of Alexander v. Holmes County Bd. of Educ., 396 U.S. 

23/
19 (1969) require that a complete plan to bring about conver­
sion to a unitary school system be effectuated within the

23/ See also, Carter v. West Feliciana Parish School Bd., 
396 U.S. 226 (1969) , 290 (1970) ; Northcross v. Board 

of Educ. of Memphis, 397 U.S. 232 (1970).

21



minimum necessary time. See Carter v. West Feliciana
Parish School Bd., 396 U.S. 290, 293 (Mr. Justice Harlan, 
concurring).

Here the district court utterly failed to set 
forth, in other than conclusory terms, the practicalities 
which led it to approve the limited Plan A for 1972-73 in 
preference to the alternatives achieving a greater degree 
of desegregation —  and then it failed to require comple­
tion of desegregation at the earliestpracticable opportunity. 
For example, the court discussed the various transportation 
cost estimates offered by the Darties (April 20 Op. 20-22), 
concluding that actual costs would be somewhat higher than
these, but it made no finding that the money could not be 

24/
raised nor even compared the projected expenditures 
against the Board's $98 million annual budget. See Brewer 
v. School Bd. of Norfolk, 456 F.2d 943, 947 n.6 (4th Cir.), 
cert, denied, 40 U.S.L.W. 3544 (1972).

The district court's opinion likewise contains 
no judgment that the transportation proposed under any of 
the alternative plans is unreasonable or injurious to health 
or safety of students. The district court simply concluded,

24/ Obviously the court could, if necessary, require sufficient 
appropriations. Kelley v. Metropolitan County Bd. of 

Educ., suora, slip op. at p. 24; Brewer v. School Bd. of 
Norfolk, 456 F.2d 943 (4th Cir.), cert. denied, 40 U.S.L.W.
3544 (1972); Bradley v. School Bd. of Richmond, 325 F. Supp.
828, 846-47 (E.D. Va~. 1971) and cases cited; Swann v.
Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265, 269 
(E.D.N.C. 1970).

22



without further substantiation, that
[t]he practicalities of the existing 
situation in the City of Memphis limit 
the change in the plan of desegregation 
to this extent at the present time.

(April 20 Op. 23).

Whatever may have been the situation on April
20, 1972, we concede that only Plan A can presently be

25/
implemented by September, 1972. The district court 
should have required, however, that plans be immediately 
made for dismantling the segregation remaining after Plan A,

25/ At the time of our post-trial brief, submitted to the 
district court prior to its April 20 decision,we said: 

"There appears no auestion that plaintifs' plan can be 
implemented by the second semester of next school year (Tr. 
1011) , but there is some question as to feasibility of 
September, 1972 implementation. Mr. Nolan [defendants' 
transportation expert] testified that he could implement 
Plan A (busing approximately 13,000 pupils) by September 
on a contract basis, but that he would not guarantee 
implementation of Plan B (busing 40,000 pupils) by September, 
and would undertake such a program only on a cost-plus 
basis. (Tr. 476-78; 480-81). More than Plan A could be 
accomplished by the fall, in Mr. Nolan's view, by using 
existing charter bus avilability from MTA and Transports,
Inc. (Tr. 491-92). Thus, by using existing charter buses 
to implement Plan A, and having Mr. Nolan bus an additional 
13,000, a transportation system for 26,000 kids could be 
implemented by September, even in Mr. Nolan's view. Thus, 
viewing the evidence in a light most favorable to defendants, 
it would seem that the prospects for implementing plaintiffs' 
elementary plan (32,417 bused) by September are very good.
Dr. Foster [plaintiffs' expert] believes that all of 
plaintiffs' plan could be implemented by Fall if the proper 
committment is made. (Tr. 1006-1011). And the Court should 
order plaintiffs' plan to be implemented by September. The 
Board will then bear the burden of justifying delay of any 
portion of the plan. The important thing is that a prompt 
start by made to implement the entire plan at the earliest 
practicable date." (Plaintiffs1 Post-hearing Brief at 
17-18) .

23



"that some demonstrable progress be made now and that a 
schedule be adopted forthwith in order that a constitutional 
plan will be implemented at the... [earliest practicable date]." 
Acree v. County Bd. of Educ. of Richmond County [Augusta], Ga., 
458 F.2d 486, 488 (5th Cir. 1972). As examples of the type 
of "demonstrable progress [to] be made now," the court in 
Acree said that "transportation facilities needed as a result 
of the plan should be arranged, funds applied for, budget 
changes contemplated, etc." Id. at 488 n.2. See also, Mapp 
v. Board of Educ. of Chattanooga, supra.

No progress in eliminating school segregation in
Memphis will ever be made, however, if the stay of the very
minimal and inadequate order issued by the district court
remains in effect. We have already expressed our views on
the lack of any legal basis for issuance of that stay in the
Suggestion of Hearing En Banc and Motion to Vacate Stay filed
in Misc. No. 1576 on June 6, 1972, and which we respectfully
incorporate herein by reference. Under applicable rulings of26/
the Supreme Court, we can conceive of no arguable basis for

26/ The only stay granted or permitted to remain in effect 
in a school desegregation case by the Supreme Court in 

recent years was in Cisneros v. Corpus Christi Independent 
School Dist. , 404 U.Si 1208 (1971) , which Ts readily 
distinguishable from this case. Compare Edgar v. United 
States, 404 U.S. 1206 (1971).

24



even as there wasthe panel's action granting a stay 
no foundation for the conclusion that Alexander v. Holmes 
County Board of Educ., 396 U.S. 19 (1969) did not apply to 
this school system in 1969. The stay should be immediately 
vacated by this Court even prior to the scheduled oral 
arguments.

27/

27/ This expedited aopeal could have proceeded without a
stay which halted preparatory procedures and planning, 

since a decision could be rendered in time to prevent 
implementation if the Board prevails in its argument that 
no desegregation in Memphis is required.

25



CONCLUSION

For the foregoing reasons, plaintiffs- 
cross-appellants respectfully pray that the stay heretofore 
granted by this Court be immediately vacated and that 
this case be remanded to the district court for the 
establishment and execution of an expedited schedule of 
such further proceedings as may be necessary to complete 
the desegregation of the Memphis public schools at the 
earliest practicable date, and in no event later than 
the commencement of the 1973-74 school year.

Respectfully submitted,

t S .LOUIS R. L U C A S * 
WILLIAM E. CALDWELL 
URAL B. ADAMS, JR.

Ratner, Sugarmon and Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

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

10 Columbus Circle New York, New York 10019
Attorneys for Plaintiffs- 

Cross-Appellants

26



CERTIFICATE OF SFRVICE

This is to certify that two (2) copies of the
foregoing brief have been served upon counsel of record
by hand delivery, as follows:

Jack Petree, Esq.
Ernest Kelly, Jr., Esq.
Suite 900
Memphis Bank Building 
Memphis, Tennessee 38103
Attorneys for Defendants-appellants
Rowlett W. Scott, Esq.
Commerce Title Building 
Memphis, Tennessee 38103
Attorney for Amicus Curiae

WILLIAM E. CALDWELL
Dated: June 30, 1972



APPENDIX A

HISTORY OF NORTKCROSS V. BOARD OF EDUC. 
OF THE MEMPHIS CITY SCHOOLS

This class action suit was originally filed under 28 
U.S.C. $1343 and 42 U.S.C. §1983 by black minor school children 
and their parents to desegregate the Memphis City schools on 
March 31, 1960; the district court denied injunctive relief and 
upheld the Tennessee Pupil Assignment Lav/. On appeal, the court 
of aopeals reversed, with instructions to the district court "to 
restrain the defendants from operating a biracial school system 
in Memphis, or in the alternative to adopt a plan looking towards 
the reorganization of the schools in accordance with the Consti­
tution of the United States." Northcross v. Board of Educ. of 
Memphis, 302 F.2d 818, 824 (6th Cir.), cert. denied, 370 U.S.
944 (1962).

On remand, the school district submitted, and the district
1/court approved, a stair-step plan incorporating geographic zoning 

and minority-to-majority transfers. On appeal, the court of

1/ The original nlan of desegregation affected grades 1-3 for the 
school year beginning September, 1962. Grade 4 was to be desegre­
gated during the 1963-64 school year and one additional grade per 
year thereafter. The court of appeals ordered the pace accelerated 
to desegregate junior high school grades in September, 1965 and 
senior high schools in the fall of 1966. 333 F.2d at 665.

la



appeals invalidated the minority-to-majority transfer feature 
and directed close scrutiny of all zone lines because it found 
substantial evidence that the boundaries approved by the district 
court had been "gerrymandered to preserve a maximum amount of 
segregation." Northcross v. Board of Educ. of Memphis. 333 F.2d 
661, 663 (1964).

On May 13, 1966, plaintiffs filed a Motion for Further 
Relief seeking the adootion of a new desegregation plan. A 
modified plan incorporating minimal zone changes and unrestricted 
transfers was submitted by the Board on July 26 and approved by 
the district court without hearing on July 29, 1966. The court 
made no ruling upon plaintiffs' Motion for Further Relief. A 
second Motion for Further Relief, based in part upon Green v.
County School Bd^ of New Kent County, 391 U.S. 430 (1968) and 
companion cases? was filed July 26, 1968, seeking (1) cancellation 
of all transfers which reduce desegregation in the school system, 
(2) complete faculty desegregation, (3) a survey of the location of 
facilities, pupils, etc., with a complete report thereon submitted 
to the district court, (4) adootion of a new plan of desegregation, 
prepared with the assistance of the Title IV Desegregation Center 
of the University of Tennessee, and based on unitary geographic

2/ The 
391 U.S 
391 U.S

companion cases 
450 (1968) and 
443 (1968).

are Monroe v. Board of Comm'rs of Jackson. 
Raney v. Bd. of Educ. of Gould School Pi~¥t. .

2a



zones, consolidation of schools or pairing, but without an 
unrestricted free transfer.

Following the filing of the Green Motion on July 26, 1968,
the district court on August 23, 1968 declined to order any relief
for the 1968-69 school year because of the imminent reopening of 

3/school. No hearing on the motion was scheduled until after the 
survey report was filed by defendants on December 23, 1968. 
Thereafter, hearings were held from February 6-11, 1969; the 
district court's opinion (unreported) rendered May 15, 1969, and a 
formal order entered May 23, 1969.

The district court held in its May 15, 1969 opinion that 
"the existina and proposed plans do not have real prospects for 
dismantling the state-imposed dual system at the 'earliest practi­
cable date.'" The district court declined to void the free transfer 
system, but found that "[t]he zones are in need of revision for 
many purposes, including further desegregation where feasible." 
Revised zone boundary lines together with enrollment projections 
were to be filed January 1, 1970. The district court denied 
plaintiffs' prayer for an injunction restraining any further school

3/ The district court deferred ordering the facilities and pupil 
surveys requested in the Motion for Further Relief pending receipt 
of briefs from defendants in support of their argument that Green 
was inapplicable. Hearings were held November 8 and 11, 1968 to 
determine whether defendants should be required to make the surveys. 
On November 21, 1968, the district court ordered the studies to be 
undertaken and a report thereon filed within 45 days.

3a



I

construction until new zone lines were formulated and approved, 
and required only a 20% system-wide assignment of faculty across 
racial lines for 1969-70.

On June 12, 1969, plaintiffs filed with the court of appeals 
a Motion for Summary Reversal of the district court's judgment.
On June 18, 1969, the court of appeals declined to consider the 
motion until the complete transcript of testimony was filed. The 
court reporter thereafter advised the court uoon instruction of the 
district judge and at the request of plaintiffs' counsel, that the 
transcript could not be prepared until September. A second motion 
renewing plaintiffs' request that the court proceed on the basis 
of the printed Appendix supplied with the motion and the exhibits 
forwarded from the district court was likewise denied, although a 
major ground relied upon for summary reversal was the district 
court's failure to require new zone lines to be effectuated for 
1969-70 after finding in May, 1969 that the "the existing and proposed 
plans do not have real prospects for dismantling the state-imposed 
dual system at the 'earliest practicable date'."

Following the Supreme Court's decision in Alexander v. Holmes 
County Bd. of Educ., 396 U.S. 19 (1969), plaintiffs filed with the 
court of appeals on November 3, 1969, a Motion to Require Adoption 
of a Unitary System Now. On November 13, 1969, plaintiffs filed a 
Motion to Convene an Emergency Panel of the Sixth Circuit to hear 
and determine the Alexander motion. The following day, the transcript

4a



was received by the court; the convening of an emergency panel 
was denied and the Alexander motion passed for consideration by 
the regular panel of the court which would hear the appeal, which 
was then calendared for argument on December 17, 1969.

Following oral argument, the judgment of the court of appeals 
was issued December 19, 1969 (420 F.2d 546), remanding the case to 
the district court for further consideration of the Motion for 
Further Relief and the plan or any admendment thereto to be presented 
to the district court as required by its order of May 23, 1969.

Plaintiffs then filed a Motion for Injunction Pending 
Certiorari, Draying that the court of appeals, pursuant to Alexander 
and to the December 13, 1969 order of the Supreme Court granting 
temDorary relief in Carter v. West Feliciana Parish School Bd. ,
396 U.S. 226 (1969), direct the district court to implement changes 
during the second semester of the 1969-70 school year. On January 
12, 1970, the court of appeals denied the Motion for Injunction, 
stating (420 F.2d 548):

We are satisfied that the respondent Board of Education 
of Memphis is not now operating a 'dual school system' 
and has, subject to complying with the present commands 
of the District Judge, converted its pre-Brown dual 
system into a unitary system "within which no person 
is to be effectively excluded because of race or color."
On March 9, 1970, the Supreme Court granted plaintiffs'

petition for certiorari and remanded the case to the district court
"with direction that the District Court proceed promptly to



consider the issues before it and to decide the case consistently 
with Alexander v. Holmes County Board." 397 U.S. 232 (1970). The 
Supreme Court reversed the court of appeals' holding that Alexander 
was inapplicable to the Memphis system and found "substantial 
evidence" to support the district court's finding that defendants 
were still operating a dual school system.

On remand, the district court entered an order setting a 
hearing on April 1, 1970 to consider seven issues: (1) whether
the defendant Board was then operating a unitary system; (2) whether 
the court should require defendants to adopt a new or modified plan 
utilizing any one or more, or a combination of such methods as 
rezoning, pairing, contiguous zones or cross-transportation of 
pupils between zones, and if so, to what extent; (3) whether the 
court should eliminate the free transfer policy; (4) whether the 
court should require a faculty desegregation ratio which, within 
a margin of 10%, would reflect the system-wide racial ratio of 
the faculty; (5) whether the court should enjoin further construc­
tion by the defendants pending adoption of a new plan; (6) whether 
a new plan should be requested from an expert from outside the 
system; and (7) when should any relief granted by the Court be 
placed into effect.

The hearing commenced on Aoril 1, 1970 and lasted seven and 
one-half trial days. On May 1, 1970 the district court entered its 
opinion (312 F.Supp. 1150), and on May 4, 1970 its implementing 
order. The court held that the defendants were "not maintaining a



IIunitary system," largely because of the free transfer policy 
and continued faculty segregation, but the court rejected pairing 
and transportation as desegregation techniques for Memphis. The 
court altered the free transfer policy so that majority-to-minonty 
transfers would/ with two limited exceptions, be prohibited; 
majority-to-majority and minority-to-minoritv transfers would 
continue to be allowed. In the area of faculty desegregation, 
the district court held, in effect, that defendants had not 
complied in good faith with the court's May, 1969 faculty desegre­
gation order, and the court therefore ordered the defendants to 
seek the assistance of the Title IV Educational Opportunities 
Planning Center at the University of Tennessee in preparing for 
further faculty desegregation. The Title IV Center subsequently 
filed a faculty desegregation plan, the Board filed a counter­
proposal, and the court conducted a hearing thereon. On July 21, 
1970, the district court entered an order essentially approving 
the Title IV Center faculty plan and requiring that by the 
beginning of the 1971-72 school year the white-black ratio of each
school's faculty should be within 10% of the system-wide white-

1/black faculty ratio.

4/ The district court thus allowed defendants two school years 
within which to comolete faculty desegregation requirements, 
although the Title IV Center had noted that Administration policy 
and the law (Singleton v. Jackson Municipal Separate School Dist^, 
419 f .2d 1211 (5th Cir. 1969)), required immediate completion of 
the faculty desegregation process.



Plaintiffs appealed from the orders of the district
V

court, and oral argument was held in the court of appeals on 
February 11, 1971. After oral argument, but before decision of 
the appeal, defendants filed in the district court a notice of 
intent to acquire sites and construct two new schools in the 
southwestern part of the system, to which plaintiffs filed 
objections. The district court conducted, on February 19, 1971, 
a hearing on plaintiffs' objections to the proposed site acquisi­
tion and construction, and orally overruled plaintiffs' objections 
at the conclusion of the hearing. This ruling was incorporated in 
a formal order and plaintiffs application for an injunction 
pending appeal was denied by order of the same date.

Plaintiffs then moved in the court of appeals for an 
injunction restraining the proposed site acquisition pending appeal. 
On March 24, 1971, the court of appeals, without the benefit of 
oral arguments or briefs, entered a per curiam opinion denying the 
motion for injunction pending appeal and affirming on the merits 
the district court's approval of the site acquisition and construc­
tion proposals. Plaintiffs thereupon filed an application for

5/ Defendants noticed an appeal from the faculty desegregation 
order of July 21, 1970, but the appeal was never perfected 
(although the court of appeals apparently considered the Board's 
cross-appeal to be viable at the time of the June 7, 1971 remand 
opinion, 444 F.2d 1179).



rehearing en banc on April 5, 1971.

On June 7, 1971, the court of appeals remanded the 
case to the district court for reconsideration in light of the 
Supreme Court's April 20, 1971 decisions in Swann v. Charlotte- 
Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) and Davis v. Board 
of School Comm'rs., 402 U.S. 33 (1971), and for adoption of a new 
plan of desegregation. 444 F.2d 1179. By opinion of the same date 
the court of appeals denied plaintiffs' petition for rehearing en 
banc on the site acquisition-construction issue. 444 F.2d 1184.

On remand, the district judge, by letter dated June 10,
1971, informed counsel that he had school-age sons, one of whom
was and would be in attendance in the defendant school system, and:

If counsel for the plaintiffs or defendants or 
their clients are of the opinion that I should 
recuse myself from the case due to the fact that 
I have school age sons, a notice to that affect 
should be delivered to Lloyd Johnson, the Clerk 
of this Court. If the Clerk receives such a 
notification he, in turn, will advise me that he 
has received it without disclosing which attorney 
delivered the notice. I will then request the 
designation of another judge. (emphasis added).

On June 11, 1971, before plaintiffs had made a final decision 
regarding the district judge's June 10 letter, the court held a 
pretrial conference at which it was agreed that, regardless of the 
parties' responses to the letter, the court could enter a preliminary 
order requiring the Board to take certain steps such as the

9a



preparation of a pupil locator map and a request for assistance 
from outside experts in the preparation of a constitutional plan 
of school operation. (6/11/71 Transcript of Pretrial Conference 
at pp. 52,60). (No such order was ever entered, however.)

June 16, 1971, plaintiffs filed with the district court 
clerk a request for designation of a new judge to preside over 
the case pursuant to the district court's June 10 letter. On 
June 24, 1971 the district court entered an order forwarding 
plaintiffs' request to the chief judge of the court of appeals, 
with the provision that "no further Droceedings will be conducted 
until this motion is resolved." On July 12, 1971 the Chief Judge 
entered an order denying the request for designation of a new 
judae and ordered the case tried by the district judge to whom it 
is assigned, Hon. Robert M. McRae, Jr.

On July 27, 1971, the district court entered an "Order 
Pertaining to Assistance" authorizing the Division of Equal 
Educational Opportunities, U.S. Office of Education, Department of 
Health, Education and Welfare, to assign qualified personnel to 
assist defendant Board in carrying out the court of appeals' mandate 
of June 7, 1971. The order also directed defendants to implement 
a majority-to-minority transfer plan with free transportation prior 
to commencement of the 1971-72 school year, but held that no further 
desegregation would be required by the opening of school.

10 a



On July 28, 1971, the district court denied a motion by 
plaintiffs for leave to employ an expert at defendants' expense 
for the purpose of preparing a desegregation plan for plaintiffs.

On August 11, 1971, the district court held a conference 
with counsel, Board personnel and the HEW-designated team, at which 
it was determined that the team would make a preliminary investi­
gation of the system pursuant to the July 27 order and that the 
Board would begin preparation of a pupil locator map. On September 
9, 1971 the district court held another conference to determine the 
progress of the Board and the team. The team reported that it had 
made a preliminary investigation but that there were several 
questions to which it sought answers before proceeding further.
(9/9/71 Tr. 8-11). Of the seven questions proposed by the team, 
the court considered one of the questions--whether the team should 
consider the racial composition of any school as "de facto," which 
should therefore be left alone--of such consequence as to require 
a hearing. (9/9/71 Tr. 37-39, 44). Plaintiffs took the position 
that there were no real issues and that the team should be required 
to prepare a plan which would produce the greatest possible amount 
of actual desegregation, taking into account the practicalities of 
the situation. (9/9/71 Tr. 52). Over the objection of plaintiffs, 
both as to timing and the necessity for a hearing, the district 
court scheduled the hearing for November 15, 1971. (9/9/71 Tr. 43-44,

11 a



46). On September 14, 1971, the district court entered an order 
setting a hearing for November 15, 1971 "for the purposes of 
determining certain factual and legal issues and providing guidance 
to the Board and the team."

On or about September 22, 1971, plaintiffs filed in the 
court of appeals a petition for a writ of mandamus or for alter­
native relief seeking to have the district court promptly schedule 
the hearing set for November 15, 1971. The court of appeals 
entered an order on October 26, 1971 denying the petition for a 
writ of mandamus or for alternative relief. (No. 71-1794, Order 
of October 26, 1971).

In the meantime, on September 28, 1971, the district court 
entered an order setting forth the issues to be determined at the 
hearing scheduled for November 15, 1971, and directing defendants 
to file "any proposed desegregation plan changes which the Board 
intends to recommend in view of the Court of Appeals opinion 
remanding this case to the Court for consideration in the light of 
Swann and Davis." Pursuant thereto defendants subsequently filed 
a document entitled "The Memphis Plan."

A pre-trial conference was conducted on November 5, 1971 
and on November 8, 1971 the district court entered a pre-trial 
order enjoining defendants from entering into any land purchases 
or construction contracts with regard to notices of intent

12 a



previously filed and further clarifying the matters to be 
considered and the procedure to be followed at the November 15 
hearing. The order also defined a "virtual one-race" school as 
one in which the predominate race is 90% or more, which definition 
was to be a guideline.

Prior to the November 15 hearing a white community 
organization, Vollentine Evergreen Community Action Association, Inc., 
and certain of its members^ petitioned the court for leave to 
intervene as amicus curiae and to participate in oral arguments, 
alleging that the petitioning organization was organized for the 
purpose of promoting and maintaining a stable racially integrated 
residential neighborhood in an area of Memphis included in the 
Northside High School zone. Petitioners further alleged that they 
were being forced to bear an unfair and disproportionate share of 
the desegregation burden as a result of defendant Board's segrega­
tion policies, and requested a truly integrated high school at 
Northside. The petition to intervene amicus curiae was allowed 
by order entered November 15, 1971.

The November 15 hearing lasted eight trial days and the 
court heard closing arguments of counsel on November 26, 1971.
On December 10, 1971 the district court filed its Memorandum 
Decision and a separate Judgment concluding that the Board had not 
carried its burden of proving that existing school segregation was

13a



not related to the historic operation of the system:
In regard to the over-all issue of one-race schools, 

this Court concludes that the proof establishes that 
the defendant Board and its predecessors have played 
a significant role in establishment of the present large 
number of one-race schools which have resulted from 
discrimination by numerous persons and grouos. There­
fore, it is incumbent upon the Court to require the 
Board to request that the team of the Division make 
recommendation to the defendant Board for ways that it 
should amend its present plan of desegregation to the 
end that the Memphis schools will be in compliance 
with the Constitution of the United States.

(December 10 Memorandum Decision at 12). The court then set forth
criteria to be utilized in the preparation of two alternative plans
by the HEW-designated team. (December 10 Memorandum Decision at
16-17).

Defendants thereafter filed a motion to alter or amend 
the Memorandum Decision of December 10, 1971, which motion was 
denied by order entered on December 21, 1971.

The district court's December 10 judgment directed that 
"pursuant to a prior request made by the defendant Board of 
Education, the personnel designated by the Division of Equal 
Educational Opportunities of the United States Office of Education 
will immediately undertake to further investigate and make 
recommendations to the defendant Board in accordance with the 
Memorandum Decision of the Court." On January 6, 1972, however, 
the Associate Commissioner of Equal Educational Opportunity of 
the United States Office of Education wrote the head of the

14 a



The district court entered an order on January 12, 1972,
concluding that the "belated and unexpected change in policy and
procedure [by HEW] causes the Court to conclude that neither it
nor the Board can rely upon the proffered assistance of the
Department of Health, Education and Welfare in carrying out the
mandate of the Court of Appeals." The court therefore relieved
the HEW team from further participation in the case and directed
the defendant Board to comply with the judgment of December 10
and prepare the two plans directed by the court's December 10
Decision. Plaintiffs thereafter moved to amend the order of
January 12, 1972 to require the Board or have the court employ
outside consultants experienced in desegregation planning to
prepare the two plans, and further to establish a strict timetable
for the preparation thereof. The district court held a conference
on plaintiffs' motion on January 25, 1972 and entered an order on
January 28, 1972 denying the essential elements of plaintiffs'
motion. The defendant Board them designated a team of its staff
to prepare the two plans directed by the December 10 judgment;
several conferences were subsequently held pertaining to the

6/
progress of preparation.

HEW-designated team placing restrictions on the activities of
the team pursuant to the district court's judgment.

6/ On March 1, 1972 plaintiffs filed a motion for a temporary 
restraining order or preliminary injunction to restrain defendants 
from enrolling any more students (resulting from a new public

15a



On March 21, 1972 defendant Board filed a motion to 
delay the scheduled March 28 hearing, which motion was based on 
a message to Congress delivered by the President of the United 
States on March 17, 1972 opposing the use of transportation for 
the purposes of school desegregation. By order entered the same 
date, the district court denied defendants' motion to postpone 
the March 28 hearing, which began as scheduled and lasted seven 
trial days. On April 20, 1972, the district court issued it 
Memorandum Decision adopting Plan A, which had been prepared by 
defendant Board's staff (but to which defendant Board had objected), 
and directing that said plan be implemented by the beginning of 
the 1972-73 school year.

Upon corsideration of all the plans, the proof 
offered at the hearing and the entire record in 
the cause, this Court is of the opinion that Plan 
A, with certain modifications, meets the criteria 
established and required by the Constitution of 
the United States as interpreted by the authorities.
The practicalities of the existing situation in the 
City of Memphis limit the change in the plan of 
desegregation to this extent at the present time. Plan 
A will afford the defendant Board an opportunity 
to implement a system of transportation for its 
students, and thereby afford the defendants with 
an opportunity to observe the best ways and means 
for implementing further desegregation in the

6/ (Cont) housing project) in the already overcrowded black 
Geeter school. The motion was resolved by consent decree 
entered on March 13, 1972 wherein defendants agreed to assign 
all new incoming students in the Geeter zone in grades 1-9 
to the nearest school of the opposite predominate race, 
providing transportation where necessary.

1 6  a



future. Plan A further meets the test of practi­
calities with regard to time of imolementation and 
cost in the light of the circumstances existing at 
this time.

(April 20, 1972 Memorandum Decision at 23). The district court 
entered its order on April 21, 1972.

On May 1, 1972 defendant Board filed a notice of appeal 
and simultaneously filed a motion to stay the district court's

Vorder. Subsequently the Board, by letter, requested certain 
modifications of the April 21 order primarily having to do with 
pupil transfers. On May 5, 1972, the district court entered an 
order supplementing its April 20 Memorandum Decision and the order 
of April 21, 1972 in accordance with certain agreements reached 
at a post-hearing conference. On the same day, the district court 
entered an order denying defendants motion for a stay pending 
appeal, and defendants subsequently applied to the court of appeals 
for a stay.

On M.ay 22 , 1972 , before the court of appeals had acted on 
the stay application, defendant Board voted to delay entering into 
a pupil tansportation contract for implementation of the court- 
ordered Plan A. Believing that the Board's action was designed 
to and would have the effect of frustrating compliance with the

7/ Plaintiffs noticed a cross-aopeal on May 16, 1972 from the 
district court's failure to require completion of the desegregation process.

1 7 a



district court's order, and suDported by the affidavit of one 
Board member, plaintiffs, on May 23, 1972, moved in the district 
court for a judgment of contempt against defendants. The 
district court conducted an evidentiary hearing the same day. 
Defendants took the position that although their delay action 
might have ruled out any possibility of entering into a contract 
with the low bidder (a private transportation company in Kansas 
City, Missouri), they could contract for implementation of Plan A 
with the Memphis Transit Authority (the local public carrier) as 
late as the month of July. (5/20/72 Tr. 23-24). The district 
court denied the contempt motion, finding that respondents' "action 
did not mean that the plan could not be implemented by the coming 
year." (District Court's Oral Ruling, 5/22/72 Tr. 125). The court's 
oral ruling was formalized in an order entered June 23, 1972.

On June 2, 1972, the court of appeals stayed the district 
court's order pending appeal. (Misc. No. 1576). Or. June 6, 1972 
plaintiffs filed in the court of appeals a suggestion for hearing 
the appeals in this case en banc and motion to vacate the stay 
order of June 2. That suggestion and motion is still pending.

1 8 a



APPENDIX B
1 II X 45

COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B

AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFS' PLAN
BOARD'S 
PLAN A

BOARD'S 
PLAN B

'klcy (1-6) 99.4 (SE , K—3) , 56.5 (1-3) , 55.0 (1-3 . 55.0

\lton (1-3) 99.4 (3-4) , 60.9 N.C. N.C.

Won (1-6) 11.0 (SE&3) , 58.5 N.C. (1) . 66.0

Balmoral (1-6), 0.7 (5-6) , 58.0 N.C. (4-6) . 52.0

3erclair (1-6) , 0 (K-2) , 62.6 N.C. (2-3) , 50.2

Bethel Gr. (1-6) 92.7 (1-3) , 52.2 N.C. (5-6), 43.6

3rookneade (1-6) , 0 (SE , K-2) , 62.6 N.C. (4-6), 47.3

3ruce (1-6) 42.7 (K&3-4) , 66.1 N.C. N.C.
Caldwell (1-6) 100 (SE&K-3) , 56.5 N.C. N.C.
CamDUS (1-6), 0.7 (5-6) , 45.8 Closed Closed

Carnes (1-8) 99.4 (3-6) , 50.1 (1-6), 85.5 (4-6) , 46.0

Caroenter Cl—3) 100 Closed Closed _____Closed------
Charjean (1-6) , 9.0 (4-6) , 63.2 (4-6) , 65.0 (4-6) , 65.0

Cherokee (1-6) 58.0 (K-6) , 57.7 (3-6), 45.1 (3-6), 45.1

Chicaqo Pk. (1-6) 100 (K-3), 59.9 (2-3), 33.8 (2-3) , 33.8

Chickasaw (1-6) 89.0 Closed (1-6&9) 62.7 (1-2&9) 40.8

Colonial (1-6) , 0 (K-l), 58.1 N.C. (3-4) , 41.2

Corning (1-6) , 0 (SE&K-2), 60.9 N.C. (1-2), 50.0

Coro Lake (1-8) 27.2 (1-6), 27.2 (1-2) , 77.0

Cromwell (1-6) , 0 (K-3) , 56.3 N.C._____ .______ (4-6) , 46.8

Cumminqs (1-6) 100 (4-6) , 52.1 N.C.________ _______—- (5-6) , 35.7

Delano (1-6) , 0 (4-6) 56.8 (1-6), 27.9 (1-6) , 27.9

Denver (1-6) , 0 (5-6) , 6 0.8 N.C. (1-2), 40.0

Denial asr> -_ (1-6) 1J0— .... i ■.. ——-- ■ ■■ - (1-4) , 4 8.1 (3-6) , 50.0 (3-6) , 50.0





COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL PLAINTIFFS' BOARD'S BOARD'S
.NAME PRESENT ______ PLAN____________ PLAN A______ _____ PLAN B.nn'iD

iwkins Mill (1-6), 21.6 (SE&4-6), 63.8 N.C. N.C.

. B. Hill (1-6) 100 (3-6) , 53.4 N.C. N.C.
sllywood (1-6) 100 (4-6) , 50.8 N.C. (4-6), 49.6
fde Park (1-6) , 99.6 (SE&K-4), 61.4 N.C. (1-2), 51.5
ilewild (1-6), 14.4 (1-2) , 66.7 (1-3), 57.3 (1-3), 57.3
ickson (1-6) , 0 (SE&K,5-6) , 50.4 (1-2) , . 47.3 (1-2), 47.3
msas (1-6) 100 (3-6) , 51.7 N.C. N.C.
Lngsbury (1-6), 0 Closed N.C. (3-4), 47.9
Londike (1-6) 100 (SE&K-2) , 69.8 N.C. (5-6) , 27.0
night Rd. (1-6), 0 (SE&K&4-6) , 46.5 N.C. (1-3), 49.1
akeview (1-8) , 97.2 (1-2) , 44.5 N.C. (3-4), 77.0
a Rose (1-6) 100 (SE,K-3) , 63.4 N.C. N.C.
auderdale (1-6) 100 (SE&K-1) , 67.4 N.C. (1-2), 51.5
awler (1-6) , 2.7 (SE&1-6) , 27.1 Closed Closed

eath (1-6) , 99.6 Closed N.C. N.C.
enox (1-6), 0 Closed Closed Closed
ester (1-6) 100 (5-6) , 62.5 (4-6) , 42.0 (4-6) , 42.0
evi (1-6) , 94.2 (SE&4-6) , 54.7 N.C . (1-2) , 57.5
incoln (1-6) 100 (SE&K&4-6) 58.2 (1-6), 99.9 (4-6), 47.6
ocke (1-6) 100 (SE,K-4) , 58.7 N.C. N.C.
ongview (4-6) , 99.9 (5-6) , 62.4 N.C. N.C.
aeon (1-6) , 0 (4) , 53.3 N.C. (1), 49.7
agnoli a (1-6) 100 (K-3), 53.6 N.C. (5.6) , 45.6
allory (1-6) , 90.9 (SE&K-2) , 54.8 N.C. N.C.



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFS'PLAN
BOAUD' S 
PLAN A

BOARD'S 
PLAN B

Maury (1-6) , 28.8 (4-6) , 49.4 Closed Closed

Merrill (1-6) , 95.6 Closed Closed Closed
Messick (1-12) , 35.8 (1-6) , 64.9 (1-2) 74.4 (1-2) 74.4

Newberry (1-6) , 0 (1-2) , 56.6 N.C. (3-4) , 39.4
Norris (1-6) , 99.1 (1-3) , 56.2 (5-6), 34.2 (5-6) , 34.2

Oakhaven (1-6) , 15.8 (SE&K-2), 62.8 N.C. (3-6) , 32.0
Oakshire (1-8) , 0 (2-4) , 54.4 N.C. (3-6), 50.5
Oakville (1-6) , 74.8 (SE&4-6) , 43.2 (3-4) , 22.9 (3-4) , 22.9
Orleans (1-6) , 100 (K-4) , 61.6 N.C. (1-3) , 50.2
Peabody (1-6) , 54.7 (SE&1-6) , 53.8 (1-6), 54.7 (1-6) , 54.7
Pine Hill (1-6) , 99.7 (SE&5-6) , 56.2 Closed Closed
Pope (1-6) , 85.0 (SE,3-4) , 59.8 N.C. N.C.
Prosoect (1-6) , 95.9 (K&3-4) , 57.1 N.C. (1-2) , 37.0
Raineshaven (1-6) , 23.5 (SE&1-2) , 57.8 (5-6), 55.8 (5-6) , 55.8
Richland (1-6) , 0.3 (5-6) , 51.5 N.C. (2-3) , 51.0
Ridgeway (1-6) , 2.3 (4-6) , 50.6 N.C. (4-6) , 57.0
Riverview (1-6) , 100 (3-6) , 64.0 N.C. N.C.
Rozelle (1-6) , 94.6 (SE&5-6) , 66.0 (4-6), 60.2 (4-6) , 60.2
Sea Isle (1-6) , 0.1 (2-3) , 51.2 N.C. (1-4), 54.0
Shady Grove (1-6) , 2.8 (2-4) , 53.8 N.C. (1-6) , 53.4
Shannon (1-6) , 100 (K-3) , 63.6 (4-6), 46.7 (1-3) , 50.5
Sharpe (1-6) , 1.8 (K-2) , 58.7 (1-2), 44.0 (1-2) , 44.0
Sheffield (1-6) , 1.3 (1-3) , 43.2 (5-6) , 24.5 (5-6) , 24.5
Sherwood (1-6) , 3.0 (SE&K-2) , 61.9 N.C. (3-6) , 45.3



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL PLAINTIFFS' BOARD'S BOARD'S
nam e PRESENT _____ PLAN____________ PLAN A__________ PLAN B

Snowden (1-9) , 4.8 Closed (5-9) , 41.9 (5-9) , 41.9
South Park (1-6) , 0 (SE&4-6), 50.9 N.C. (1-3) , 46.0
Springdale (1-6) , 93.8 (K-3), 50.5 (1-6) , 74.5 (1-6) , 74.5
Stafford (1-6) 100 (K-3), 65.6 N.C. (4-6) , 49.4
Treadwell (1-6) , 1.0 (K-3), 46.9 (1-3) , 32.0 (1-3), 32.0
Vollentine (1-6) , 83.8 (3-4) , 58.2 (1-4) , 51.2 (1-4) , 51.2
talker (1-6) , 98.2) (5-6) , 54.6 (3-4) , 55.7 (3-4) , 55.7
leaver (1-7) , 96.2 (K-l) , 62.2 Closed Closed
Wells Sta. (1-6) , 0 (SE&K-4) , 45.8 N.C. (5.6) , 46.8
Westhaven (1-6) , 22.0 (SE&1-3) , 60.7 (1-2) , 49.5 (1-2) , 49.5
Westside (1-6) , 0 (4-5) , 56.9 (4-6) , 30.9 (4-6) , 30.9

vestwood (1-6) , 45.1 (SE&K-3), 67.0 (1-6) , 45.1 (1-6) , 45.1
Whitehaven (1-8) , 9.0 (3-6) , 41.9 Closed Closed
Whi'tes Chapel (1-8) , 91.9 N.C. (5-6) , 74.0
White Station (1-6) , 23.4 (SE-K-3) , 53.7 N.C. N.C •

Whitney (1-6) , 0 (6) , 53.3 (1) , 34.8 (1) , 34.8
Willow Oaks (1-6) , 0.1 (SE, 4-6), 50.7 N.C. (1-2) , 47.2
Winchester (1-8) , 2.4 (SE&K-2) , 53.7 (1-2), 38.9 (1-2) , 38.9
Wisconsin (1-6) , 100 (4-6) , 56.7 Closed Closed

JR. & SR. HIGH SCHOOLS

Ai rways (7-9) , 59.3 (7-9) , 55.6 N.C. (7-8) , 35.0
3ellvue (7-9) , 50.0 (7-9) , 56.5 N.C. (7-8) , 26.0



COMPARISON OF PLAINTIFFS’ PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL PLAINTIFFS' BOARD'S BOARD'S
NAME PRESENT PLAN PLAN A________ PLAN 3

Zarver (7-12) , 99.9 (10-12) , 45.9 N.C.
T T )------
(10-12)

37.1
N.C.

Central (10-12) 12.2 (10-12) , 46.5 (10-12) , 36.5 (10-12) , 36.5
Dolonial (7-9) , 0.2 (7-9) , 45.8 N.C. (7-8) , 39.0
lorry (7-9), 99.3 (7-9) , 59.4 (7-8) , 59.7 (7-8) , 59.7
Dvpress (7-9) , 100 (7-9) , 51.7 (7-8) , 65.9 (7-8), 65.9
Douglass (7-12) , 100 (7-9) , 

fln-i2) r
59.04 0-4 (10-12) , 76.2 (10-12) , 76.2

Fast (7-12), 0.3 (10-12) , 43.9 (10-12) , 43.8 (10-12) , 43.8
Fairley (7-12), 25.1 (7-9) , 62.9 (10-12) , 45.9 (10-12) , 45.9
Fairview (7-9) , 39.6 (7-9) , 48.0 N.C. N.C
Fravser (7-12) , 0.1 (7-9) ,(10-12) .

43.2
60.4 (10-12 , 41.7 (10-12) , 41.7

leeter (7-12) , 98.0 (7-9) , 47.7 (7-9) , 59.0 (7-9) , 59.0
3a. Hills (7-9) , 7.1 (7-9) , 59 . 3 N.C. (9) 67.0
Dragg (1-9) , 1.6 (7-9) , 46.8 (7-9) , 57.3 (7-9) , 57.3
flamil ton (7-12) , 100 (7-9) ,(10-12) .

55.649.4 ______ N.C.______ (7-8) ,(10-12) . 71.4N.C.
fiillcres t (8-12) , 0.4 (10-12) , 51.0 (9-12) , 20.0 (9-12) , 20.0
Mumes (7-9) , 95.6 (7-9) , 63.3 N.C. (7-8) , 67.8
Kingsbury (7-12) , 0.1 (7-9) ,

(10-12) r
47.698.2 N.C. (9) ,(10-12), 45.4N.C.

Lanier (7-9) , 5.7 (7-9) , 58.2 (7-8) , 53.5 (7-8), 53.5
Lester (7-12) , 100 (7-9) , 

(10-12) .
47.6
49.4 (7-9) 53.3 (7-9) , 53.3

Lincoln (7-9) , 100 (7-9) , 54.6 N.C. (7-8) , 72.0
Longview (7-9) , 99.6 (7-9) , 56.6 N.C. (9) , 40.2
Manassas (7-12) , 99 . 7 (7-9) ,(10-12) . 66.2

4 5.0 (7-9) , 58.7 (7-9) 58.7
•lelrose (7-9) , 

(10-12)
9 9 . C
,99.5 (7-9) , 

(10-37) .
59 . 1
4 3.0

(7-8) , 
(10-12) .

5 4.0 
°6 . 8

(7-8) , 
(10-12).

54.0 96 . 3
Mess ick d-17), 35. 8 (10-12) , 46.9 (10-12) , 46.9 (10-12). . l l ^ A __



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFSPLAN
1 BOARD’S 

PLAN A
BOARD'S
PLAN B

Mi tche11 (8-12) . 99.9
(7-9)
(10-12)

45.2
4 6.0

(8-9) 77.0 
(10-12)____ .. (8-9)

(10=12.)-.---
77.0

--
Norths ide (10-12) ,98.6 (10-12) , 48.2 N.C . N.C.
Oakhaven (7-12) , 6.7 (10-12) , 49.1 N.C.

(9)
(10-12) ,

23.0
N.C.

Overton (10-12) , O'. 1 (10-12) , 51.9 N.C. N.C.
Porter (7-9), 99.9 (7-9) , 49.5 N.C. (7-8) , 45.2
Richland (7-9), 2.3 (7-9) , 57.3 N.C. (9>,z_______ 30.0
Ridgewav (7-11), 1.3

(7-9)
(10-12)

54.7
49.6 N.C.

(9)
(10-12) ,

73.7
N.C

Riverview (7-9), 99.2 (7-9) , 44 . 5 N.C. (7-8) , 66.0
Sheffield (7-12), 17.8 (7-9)

(10-12)
60.9
45.1 N.C. (9)

(10-12)
71.0
N.C

Sherwood (7-9), 10.1 (7-9) , 47. £ (9) , 54.0 (9) , 54.0
Souths ide (10-12) ,99.6 (10-12) , 47.2 N.C. N.C.
Tech (10-12) ,37.7 N.C. N.C.
Treadwell (7-12), 0.1

(7-0)(10-12)
45.1
40.2 (7-12) r 20.2 (7-12), 20.2

Trezevant (7-12), 3.1
(7-0)
(10-12)

54 . 8 
52.4 (9)M 0-1 2)____

69.4N.C.
(9)
(10-12)

69.4
N.C

Vance (7-9), 99.9 (7-9) , 60 . e N.C. (7-8) , 65.0
Washington (10-12) ,99.9 (10-12) , 48.2 N.C . N.C.
Westside (7-12), 0.1 (10-12), 58.2 N.C.

(9)
(10-12),

59.0
N.C.

Westwood (7-12), 37.4
"(T-9'5
n n-i7)

45.  ̂
4 1 . d N.C. N.C.

Whitehaven (9-12), 1.0 (7-9) 
n  n-i ->) 45.3 

i  4 a (7-12) t 13.2 (7-12) , 13.2
White Station (7-12), 4.5 (7-9)

(10-12)
55.7
52.2̂ N.C. (9)

(10-12)
55.4
N.C.

Wooddale (7-9), 0.1 (7-9) 55.8 N.C. (7-8) , 40.C
Wooddale (10-12), 0 (10-12) 47.6 N.C. N.C.
Snowden (7-9) , 52 . • C]osed Closed
Chickasaw (7-9) , 45.( Closed Closed

~ 7 U



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL PLAINTIFFS' BOARD'S BOARD'S
NAME PRESENT PLAN _____PLAN A__________ PLAN B

Graceland (7-9), 47.7 Closed Closed
-

.

•

-

- 8 b



APPENDIX C

PLAN A PROJECTIONS AND PAST ENROLLMENTS 
FOR MEMPHIS SCHOOLS WHICH WERE UNIRACIAL IN 1969-70

Kindergarten Special Educ. Elementary Jr. High Sr. High
School White Black White Black White Black White Black White Black

Alcy 1969-70 
1971-72 
Plan A

--- ---
0 23 

No Change
0
1

284
766
728
346

--- ---
--- ---

Berclair
1969-70 25 0 -------- -------- 553 0 — — — —

1971-72 25 0 23 0 452 0 — — — —

Plan A No Change No Change No Change — — — —

Brookmeade
1969-70 909 0
1971-72 — — — — 842 0 — — — —

Plan A — — — — No Change — — — —

Caldwell
1969-70 
1971-72 
Plan A

0 73 
No Change

0 12 
No Change

0 1662 
0 1357 

No Change
— — — —



School
Kindergarten Special Educ.
White Black White Black

Carnes
1969-70 0 25 
1971-72 0 50 
Plan A No Change

0 26
1 19

No Change

Carpenter
1969-70 
1971-72 
Plan A

Carver
1969-70 
1971-72 
Plan A

Chicago Park
1969-70 0 25
1971-72 0 50
Plan A No Change

Colonial Jr.
1969-70 --  --  --  --
1971-72 --  --- --  --
Plan A --  --  --  --

Corning
1969-70 25 0 --- ---
1971-72 25 0 12 0
Plan A No Change No Change

Elementary Jr. High Sr.
White Black White Black White

0 706 0 172 —

4 641 1 170 —

179 1056 No Change —

0 331 — — —

0 401 — — —

Close — — —

________ — 0 989 0
— — 3 856 0
— — No Change No

0 588 — — —

0 514 — — —

359 183 — — —

— — 1594 0 —

— — 1350 7 —

— — No Change —

386 0 — — — — —
351 0 — — — “ “
No Change — — —

H i g h
B l a c k

1190
1187

Change



School
Kindergarten 
White Black

Special Educ. 
White Black

Corry Road
1969-70 
1971-72 
Plan A

-— -- --  --

Cummings
1969-70 0 26 0 24
1971-72 0 51 0 27
Plan A No Change No Change

Douglass Elem.
1969-70 0 25 0 19
1971-72 0 50 0 19
Plan A No Change No Change

Douglass Hi
1969-70 — — 0 37
1971-72 — — — —

Plan A — — — —

Dunn
1969-70 0 24 — —

1971-72 0 25 — —

Plan A No Change . . .

♦

Evans
1969-70 — — — —

1971-72 — — 24 0
Plan A — — NO Change

Elementary
White Black

Jr. High
White Black

Sr. High
White Black

— — 0 1055 — --
— — 8 1129 — —

— — 560 829 — —

0 1126 — — — —

0 967 — — — —

No Change — — — —

0 954 — — — —

0 776 — — — —

503 505 — — — —

— — 0 675 0 1081
— — 0 572 0 682
— — Close 356 1142

0 542
0 460

No Change

977 0 
938 0 
No Change



School
Kindergarten Special Educ.
White Black White Black

Florida
1969-70 --  --
1971-72 0 47
Plan A No Change

0 29
0 18

No Change

Ford Road
1969-70 0 26 
1971-72 0 77 
Plan A No Change

0 28
0 22

No Change

Fox Meadows
1969-70 
1971-72 
Plan A

Frayser Elem.
1969-70 --  --
1971-72 25 0Plan A No Change

Geeter Elem.
1969-70 
1971-72 
Plan A

Geeter Jr.—Sr.
1969-70
1971-72
Plan A

17 0No Change

0 71 27 
No Change

0 14
0 13

No Change

Elementary
White Black

Jr. High
White Black

Sr. High
White Black

0 1175
0 873

No Change

0 839
0 1094

No Change
0 167
1 320 

No Change

843 0
488 0
No Change

468 0
408 0No Change

0 408
21 778

454 447

__ _ _ ________ 0 271 0 420
___ ________ 15 496 9 509
_  _  — — 399 573 Close



School
Kindergarten Special Educ.
White Black White Black

Georgia Avenue
1969-70 --  --
1971-72 0 51
Plan A No Change

0 92
0 77

No Change

Grandview
1969-70 
1971-72 
Plan A

30 0 
18 0 
No Change

Hamilton Elem.
1969-70 0 25
1971-72 0 52
Plan A No Change

Hamilton Jr.-Sr.
1969-70 
1971-72 
Plan A

Hanley
1969-70 0 26 
1971-72 0 50 
Plan A No Change

0 58
0 63

No Change

Hollywood
1969-70
1971-72 0 24
Plan A No Change

Jr. High
White Black

Sr. High
White Black

Elementary
White Black

0 1754
0 1576

No Change

861 0
869 2
480 450

0 1294
3 1003

No Change

0 1439
0 1227

No Change
0 1789
0 1859

No Change

0 1451
0 1111 

299 945

0 874
3 821

No Change



School
Kindergarten Special Educ.
White Black White Black

Hyde Park
1969-70 0 
1971-72 0 
Plan A No

Kansas
1969-70 0 
1971-72 0 
Plan A No

Kingsbury Elem.
1969-70 
1971-72 
Plan A

Kingsbury Jr.-Sr.
1969-70 
1971-72 
Plan A

25 0 40
76 0 47

Change No Change

25 — —

52 — —

Change — —

— 45 0
— 48 0

No Change

— —

—

Klondike
1969-70 0 25 0 129
1971-72 0 50 1 112
Plan A No Change No Change

Lakeview
1969-70 0 27 0 7
1971-72 — — — —

Plan A — — — —  —  —

Elementary
White Black

Jr. High
White Black

Sr. High
White Black

0 1450 — — — —

1 1301 — — — —

No Change — — — —

0 949 — — — —

0 732 — — — —

No Change — — — —

845 0 — — — —

736 0 — — — —

No Change — — — —

_____ . . . . 1477 0 1429 0
___ ________ 1364 2 1354 2
— — No Change No Change

0 673 — — — —

1 688 — — — —

No Change — — — —

0 443 0 136 — —

11 455 1 129 — —

No Change No Change — — —



Kindergarten Special Educ.
School White Black White Black

Lauderdale
1969-70 0 25 0 6
1971-72 0 49 0 11
Plan A No Change No Change

Leath
1969-70 0 25 0 84
1971-72 0 51 0 49
Plan A No Change No Change

Lester Elem.
1969-70 0 25 0 13
1971-72 0 19 0 11
Plan A No Change No Change

Lester Jr.-Sr.
1969-70 — — — —

1971-72 — — — —

Plan A ““ ” ““ _ _ _

Lincoln Elem.
1969-70 0 25 0 19
1971-72 0 50 0 28
Plan A No Change No Change

Locke
1969-70 0 25
1971-72 0 43 0 4
Plan A No Change No Change

Elementary Jr. High Sr. High
White Black White Black White Black

0 718
0 613

No Change

0 711
2 426

No Change

0 896 — — — —

0 763 — — — —

423 302 — — — —

— — 0 578 0 484
-----— — 0 593 0 474
— — 441 504 Close

0 765 — — — —

3 574 — — — —

No Change

0 1051
0 734

No Change



School
Kin cfergarten Special Educ.
White Black White Black

Magnolia
1969-70 0 25
1971-72 0 54
Plan A No Change

Manassas Jr.-Sr.
1969-70 
1971-72 
Plan A

Melrose Jr.-Sr.
1969-70 --  --  0 17
1971-72 --  --  --  --
Plan A --  --  --  --

Mitchell
1969-70 
1971-72 
Plan A

Norris
1969-70 
1971-72 
Plan A

0 26
0 37

No Change

1969-70 0 25
1971-72 0 25
Plan A No Change

Orleans

Elementary 
White Black

Jr. High 
White Black

Sr. High 
White Black

0
0

No
1035
812

Change
----- -----

----- -----

— — 0 1208 0 1025
— — 1 1208 0 932
— — 816 1158 1362 832

— — 0 1258 0 1137
— — 0 1217 7 1206
— — 868 1009 196 1282

— — 0 723 0 336
-----— — 2 677 0 942
— — 199 666 No Change

0 620 — — — —

5 732 — — — —

456 237 — — — —

0 831 — — — —

0 742 — — — —

No Change — — — —



School
Kindergarten 
White Black

Special Educ. 
White Black

Overton
1969-70 — — — —

1971-72 — — — —

Plan A — — — “ “ “

Porter
1969-70 — — 0 29
1971-72 — — 0 27
Plan A —  —  — — “ No Change

Shannon
1969-70 — — — —

1971-72 0 25 0 12
Plan A No Change No Change

Stafford
1969-70 0 25 ■ --------------- —

1971-72 0 49 — —

Plan A No Change —  —  —

Walker
1969-70 0 11
1971-72 — — 0 2
Plan A —  —  — No Change

Washington
1969-70 0 21
1971-72 — — 0 22
Plan A — — No Change

Elementary Jr. High Sr. High
White Black White Black White Black

1735 0
— — — — 1772 1

No Change

0 2270
— — 1 1231 — —

No Change

0 957
9 882 — — — —

429 376 — — — —

0 551 — — — —

0 538 — — — —

No Change — — — —

0 681 0 113 — —

18 958 — — — —

317 398 — — — —

— — — — 0 1868
— — — — 0 1813
— — — — No Change



School
Kindergarten 
White Black

Weaver
1969-70 --
1971-72 1 24
Plan A Close

Westside Jr.-Sr.
1969-70 
1971-72 
Plan A

Wisconsin
25 
17

Close

Special Educ.
White Black

0
Close01969-70 

1971-72 
Plan A

0
0

30
4

Elementary Jr. High
White Black White Black

0 20
0 16
Close

561 0
502 0No Change

0 152
10 141
Close

0 1910 186Close

Sr, High
White Black

380 0 
392 0 No Change



1969 EXHIBIT IN THIS COURT

- * ■ - * — - j - —  n ' t -

ENROLLMENT DATA— MEMPHIS CITY SCHOOLS— ATTENDANCE REPORT ENDING lO-iM-r.'j
23 26 40 19 12

School
Kindergarten  
White Negro

Special Ed. 
White Negro

Elementary
White Negro

Junior Hi
White Negro

Senior Hi  
White Negro Total

2 21 2 24 8 32 3 16 3 9 —

f A !c y — — — — — 766 — — — — 766
5 Berclair 25 — — — 553 — — — — — 578
j Brookmeade — — — — 909 — — — — — 909

Caldwell — — — — — 1662 — — — — 1662
Carnes — 25 — 26 — 706 — 172 — — 929

j Carpenter — — — — — 331 — — — — 331
$ Carver — — — — — — — 989 — 1190 2179

Chicago Park — 25 — — — 588 — — — — 613
Colonial Jr. — — — — — — 1594 — — — 1594

Corning 25 — — — 386 — — — — — 411

Corry Rd. — — — — — — — 1055 — — 1055

Cummings — 26 — 24 — 1126 — — — — 1176

Douglass El — 25 — 19 — 954 — — — — 998

Douglass (7-12) — — — 37 — — — 675 — 1081 1793

Dunn — 24 — — — 542 — — — — 566

Evans — — — — 977 — — — — — 977

Florida — — — 29 — 1175 — — — — 1204

Ford Rd. (1-7) — 26 — 28 — 839 — 167 — — 1060

Fox Meadows — — — — 843 — — — — — 843

Frayser El. — — — — 468 — — — — — 468

Geeter El. — — — 7 — 408 — — — — 415
Geeter (7-12) — — — 14 — — — 271 — 420 705
Georgia Ave. — — — 92 — 1754 — — — — 1846

1

1969-70 E
nrollm

ent S
tatistics



t

School

Grandview Ilts. 
Hamilton El. 
Hamilton (7-12) 
Hanley 
Hollywood 
Hvde Park 
Kansas
Kingsbury El. •
Kingsbury (7-12)
Klondike
Lake view
Lauderdale
Leath
Lester El.
Lester (7-12)
Lincoln El.
Lincoln Jr.
Locke
Magnolia
Manassas
Melrose (7-12)
Mitchell (8-12)
Norris
Orleans
Overton
Porter
Shannon

i

Kindergarten Special Ed.
White Negro White Negro

____ 30 —

— 25 — —

- — — —

— 26 — 58
— — —

____ 25 — 40
25 — —

— — 45 —

■ — — —

- 25 — 129
____ 27 — 7
_ 25 — 6

. 25 — 84
— 25 — 13
, - — — —

- 25 — 19
- — — 28

— 25 — —

---- ■ 25 — —

- — — —

____ — 17
----- — — 26

— — — —

— 25 — —

-- — — —

_ — — 29
- ____ — —

Elementary 
White Negro

861 —
_  1294

_  1451
_  874
_  1450
_  949

845 —

_  673
_  443
_  718
_  711
_  896

_  765

_  1051
_  1035

620
831

_  957

J u n io r  TIi Sen io r H i •

W h ite Negro W h ite Negro Total

_ ___ — 891
_ - — — 1319
_ 1439 — 1789 3228

— — 1535
— — — 874

— — —
z

1515
974 rv

.__ — — 890 <©

1477 _ 1429 — 2006 Q>
_ _ • — — 827 ba

136 — — 613 r-
o
(N_ - — 749 o

^  CO
— — 820 — o  

»  p
i—{

1
_ — — 934 r-*» 1

578 — 48 4 1062 CO - I
_ _ — — 809 i

— 1779 — — 1S07
1076

*-» •Co
O*

»\
j
i

- — — 1060 Co
1

_ 1208 — 1025 2233 r
t

_ 1258 — 1131 2406 >
_ 723 — 836 1585 «

_ _ _ — — 620 i
_ _ — — 856 [
_ . — 1735 — 1735

2270 — — 2299 »f
-- — — — 957

> . > • » r



Kindergarten Special Ed. Elementary
School White Negro White Negro White A etjro

Stafford — 25 — — — 551
Walker (1-7) — — — 11 — 681
Washington — — — 21 —

152Weaver (1-7) — — — — —
West side (7-12) — — — — — —
Wisconsin — 25 — 30 — 191

50 529 75 794 5842 27144

NON-INTEGRATED TOTALS:

Kindergarten 50 529
Special Ed. 75 794
Elementary 5842 27144
Junior Ili 3632 12853
Senior ili 3544 9824

13143 51144 =  64287

Department of Pupil Services 
jh (12-12-69)

Junior Hi Senior Hi
White Negro White Negro Total

_ — — — 576
— 113 — — 805
— — — 1868 1889
— 20 — — 172

561 — 38 0 — 941
— — — — 246

3632 12853 35 4 4 9824 64287

1969-70 Enrollm
ent Statistics



IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 72-1631

DEBORAH A. NORTHCROSS, et al.,
Plaintiffs-Cross-Appellants,

V .

BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Cross-Appellees.

Appeal from the Unit.ed States District Court for the 
Western District of Tennessee, Western Division

BRIEF FOR CROSS-APPELLANTS

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
URAL B. ADAMS, JR.

Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Cross-appellants



TABLE OF O C T E T S

* \

t Table of Cases

Issue ^resented for Review 

Statement of the Case

The District Court's Alternatives 

Plan A 

Dlan 3

Plaintiffs' Plan

Argument

Conclusion

Certificate of Service

ZSSS
ii

1
2

5
5
8

11
Hi

26

27

- i -



TABLE OF CASES

Alexander v .  Holmes County Bd. o f 
E d u c ., 396 U .S . 19 (1969)

Acree v .  County Bd. o^ Educ. o r P ich n o rd
County, ~')a., h58 F .2d  h8<5 (5th  C ir T  1972)

B ra d le y  v .  School Bd. o f ^ ic h ro n d ,329 F .
Sunn) ^2? (E .D . 7 a . 1971)

B rsd le v  v . School Bd. o f FIchr.end, 317 
F . Suop. 555 (E .D . Va. 1970)

Brewer v .  School Bd. o f N o rfo lk , h56 F.2d  
9),3 (hth  C i r . ) ,  c e r t ,  denied, 
hO U .S .L .V .  3 S h h T l9 7 2 l

Brown v . Board o f E d u c,, 3h9 U .S. 29h (1955)

C a rte r  v .  West F e le c ia n a  P a r is h  School B d .,
U.3 .  226 (I9 6 0 )," 2 9 0  (1970)

C isn e ro s  v . Cornus C h r is t i  Indeoendent School 
D i s t . , hOh U .S. 1205 (1971)

D a vis  v .  Board o f School Cornm'rs o f  Mobile 
County, h02 U .S . 33 (1971)

D a v is  v . Board o f School Corm 'rs o p 'o b ile  
County, h30 ^ .Pd  6P3 (5 th  Cir. 1970)

Edgar v .  United S t a t e s , hOh U .S . 1206 (1971)

Kel l e y  v . M etropolitan  County Bd. o f Ed u c.,
No. 71-177* (6th  C i r . ,  May 30, 1072)

Mannings v .  Board o f ° u b l ic  In s t r u c t io n  o f 
H ills b o r o iv h  Ccuntv, h27 F .2d  rt7h 
T5th  C i r .  1970)

’Unoo v . Board r r Educ. o f Chattanooga, 329 
" .  Sunn. 1 37 h ‘(E .D . Tenn. 1971), 
anneal oending

Page

21, 25 

2h

22

21

22

20

21, 22 

2h

2, h, 17, 18

17
2h

21, 22

17

21, 2h



Nortbcross v . Hoard o f L-i'ic. o'* ♦.

397 11.3. 232 0^70)
JjUU F.2d 1179 (6th Cir. 1971)
L20 V,?A $i;6 (6th Cir. 1969)

Swann v. Charlotte-'T3C>let:b\;r? Id. of Iduc., 
I;02 U .3. 1 (l°"7TT

Swann v. Charlotte-’'ecklenbur̂  M. of Cduc., 
311 FT Suna. 265 (F.~.".CV 1970)

15, 21 

2

18

2, L, 19, 20, 21 

22



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 72-1631

DEBORAH A. NORTHCROSS, et al.,
Plaintif fs-Cross-Appellants,

vs.
BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Cross-Appellees.

Appeal from the United States District Court for the 
Western District of Tennessee, Western Division

BRIEF FOR CROSS-APPELLANTS

Issue Presented for Review

Whether the district court, having approved a plan 
for September, 1972 implementation which is insufficient to 
eliminate state-imposed segregation in the public schools, 
erred in failing to include in its decree a firm and expedited 
schedule for completion of the additional steps necessary to 
establish a unitary school system in Memphis.



STATEMENT OF THE CASE

The procedural history of this school desegregation 
case, which commenced March 31, 1960, is set forth in detail 
in Appendix A, attached hereto. This latest round of 
appellate litigation results from district court proceedings 
and adoption of a new desegregation plan for defendant 
system pursuant to this court's remand of June 7, 1971 for 
reconsideration by the district court in light of Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) and 
Davis v. Board of School Comm'rs of Mobile County, 402 U.S.
33 (1971). Northcross v. Board of Educ. of Memphis, 444 
F.2d 1179 (6th Cir. 1971).

Following this court's June 7 remand, the 
district court, after various interlocutory proceedings, 
including designation of an HEW team to prepare a consti­
tutional plan of school operation for Memphis, conducted an 
evidentiary hearing beginning November 15, 1971, to resolve 
defendants' contention that they were not responsible for
existing school segregation and were not constitutionally

1/required to effect more pupil desegregation. The district 
court, by memorandum decision and separate judgment entered 
on December 10, 1971, held that defendants had not carried

1/ Defendants' position contained one exception: they
conceded that the all-black Lester (1-12) and Carpenter 

(1-3) schools, which are surrounded on three sides by white 
schools, are vestiges of the dual school system. (Transcriptof November 15, 197] hearinu at d p . 153, 739-40).

2



their burden of establishing that the large number of one-
2/race schools was not the result of their historic operation 

of a dual school system. The district court directed the 
HEW team to prepare two plans of desegregation, pursuant to
stated criteria, for the court's consideration (Dec. 10 Op.

1/at 16-17).

The HEW team was subsequently relieved of its
function in the litigation because of a change in national
administrative policy, and responsibility for preparation
of the two plans called for in the district court's December
10 decision was placed upon defendant Board (see Appendix
A at 14a-15a), which assigned a team from its administrative
staff to comply with the district court's directive. The
Board's recommendation, a document entitled "Court Ordered
Plan A and Plan 3," was filed along with a proposed plan of
plaintiffs on March 3, 1972. Thereafter, the court allowed
defendants to file three additional submissions and conducted
an evidentiary hearing beginning March 28, 1972 on all of

1/the alternatives before the court. Defendants took the

2/ For "auidance," the district court, by pretrial order of 
November 8, 1971, defined "virtually one-race schools" as 

those schools wherein the predominant race was more than 90% 
of the enrollment.
3/ The district court's December 10 memorandum decision is 

as yet unreoorted, as is the April 20, 1972 decision.
Four conies of the decisions and implementing orders are 
being separately filed with this brief. Citation to the 
December 10 Memorandum Decision will be in the form "Dec. 10 
Op." followed by the page reference, and the April 20 Memor­
andum Decision will be similarly cited ("April 20 Op.").
4/ Prior to the November 15, 1971 hearing defendants, at the 

direction of the district court, filed "The Memphis Plan,' 
representing their views of their constitutional obligations

(cont'd)
3



absolute position that they should not be required to im­
plement any plan which would entail the transportation of

5/even a single pupil (II Tr. 5).

The district court entered its memorandum decision 
on April 20, 1972 adopting Plan A for September implementa­
tion. The court concluded that Plan A, although it effects 
no changes in the greater number of one-race schools, "meets 
the test of practicalities with regard to time of implemen­
tation and costs in the light of circumstances existing at 
this time." (Aoril 20 Op. 23). Although the court held that

Plan A will afford the defendant Board an 
opportunity to inclement a system of 
transportation for its students, and there­
by afford the defendants with an opportunity 
to observe the best ways and means for 
implementing further desegregation in the 
future

(id.), the court did not require defendants to take the 
further steps necessary to complete desegregation, and did 
not establish a timetable therefor.

4/ (cont'd)
under this court's remand and Swann and Davis. The 
district court rejected this proposal as "more propaganda 
than substance and [which], therefore, should not be 
considered as a desegregation Plan which would meet the 
requirements of Swann and Davis and the remand of the Court 
of Anneals." (Dec. TO Op . 18). Nevertheless, defendants 
were allowed, over plaintiffs' objections, to make a record 
on "The Memphis Plan" at the March 28 hearing (II Tr. [see 
n.5 infra] 57-58). The district court thus had seven 
alternatives before it.
5/ Transcripts of the various hearings in this cause are

referenced in the following manner: "I Tr. __" refers to
the transcript of the hearing commencing on November 15,
1971; "II Tr. ._" refers to the ‘'arch 28 , 1972 hearing;
transcripts of all other hearings and conferences will be 
referenced by the date on which the hearing or conference 
began -- c.g., "4/1/70 Tr. _." (The transcript of each

(cont'd)4



The district court's judgment was entered April 
21, 1972; defendants noticed their appeal on May 1 and 
plaintiffs noticed their cross-appeal on May 16, 1972.

The District Court's Alternatives 
During the 1971-72 school year defendant system 

enrolled 145,581 pupils, of whom 78,072 (or 53.6%) were 
black (I X 40). Of the 78,072 black students, 30,563 were 
enrolled in 100% black schools and 28,770 additional black 
students were enrolled in schools which were 98% to 99.9% 
black (ibid.). In all, 87.7% of the system's black students 
were enrolled in schools which were 90% or more black 
(Response to Requests for Admission, No. 74).

Plan A
Plan A, adopted by the district court for

September implementation, just begins to effect changes in
this pervasive pattern of racial isolation. Plan A, which

6/is based upon the existing school zones, employs only the 
techniques of minor changes in some zones and pairing of 
some contiguous school zones, leaving unaltered the zones 
in areas of Memphis with the greatest concentration of 
black and white students. Not all students reassigned 
under the plan would require transportation, and some of

5/ (cont'd)
separate hearing or conference in this case is paginated 
consecutively rather than by volume). Exhibits will be
designated in a similar manner, indicated by "X" -- e.a,,
"I X 99, "4/1/70 X 99."
6/ Although this court suggested in its June 7, 1971 remand 

opinion that a pupil locator map be prepared for use in
(cont.'d)

5



the reassigned students to whom the plan proposes that 
transportation be furnished are still closer to their newly 
assigned schools than other Memphis pupils unaffected by
the plan, who are not afforded transportation by the Board. V

Plan A was orecared by three white members of
defendant Board's staff (II Tr. 87) in response to one of
the district court's December 10 directives:

One set of recommendations shall not have 
any minimum or maximum percentage factor.
It shall be based uoon the maximum use of 
pairing adjacent or nearby schools without 
transportation, changing zone lines of 
adjacent or nearby school zones, and closing 
some schools, plus the minimum use of trans­
portation of students by clustering, pairing 
noncontiguous zones, or other methods.
The term "minimum use of transportation" 
cannot be precisely defined by time or 
distance due to the size and location of 
streets, traffic congestion and other 
factors. The term is meant to refer to the 
use of transportation for certain particularly 
adaptable areas or situations, to the end 
that one-race schools shall be minimized.
The term is intended to mean less than city­
wide transportation. It could mean, if 
necessary, an initial phase of eventually 
overcoming one-race schools comoletely in 
conjunction with future construction, coupled 
with the future use of more transportation.

(Dec. 10 Op. 16).

6/ (cont'd)
developing a clan, defendant Board initially represented 
that compilation of such a map would require an inordinate 
amount of time and effort; in the hopes of expediting the 
matter plaintiffs agreed that proposed plans would be based 
upon the existing zones and enrollment information available.
7/ Some of the ouoiIs in this latter category attend schools 

annexed within the last several years fron Shelby County; 
they rode school buses while a part of the county system but 
such services are not provided by defendant Board, which has 
instead followed a policy of new construction of smaller 
schools in such areas.

6



Plan A leaves 80 schools with racial majorities
of 90% or greater (II X 48). [See generally II X 45, attached
hereto as Appendix B, which compares the projected results
of Plan A, Plan B and plaintiffs' proposed plan]. 40,219
black students and 28,480 white students will continue
under Plan A to attend schools which are 90% or more of
their respective race (II X 49). The Board estimates that
Plan A will require the transportation of 13,789 pupils (II

8/X 17), or less than 10% of the system's 1971-72 total 
enrollment of 145,581.

Although the district court indicated that the 
"minimal transportation" plan it ordered prepared could 
utilize noncontiguous zones (Dec. 10 Op. at 16), the Board- 
developed Plan A effects only a limited number of contiguous 
pairs or clusters of schools (see II XX 1,2,3 [elementary,

Vjunior high and senior high maps of Plan A] ).

8/ The document entitled "Court Ordered Plan A and Plan B,"
— at page 85, estimates the number to be transported under 
Plan A at 12,686 with a breakdown of the number to be bused 
in each affected school. Exhibit 17 (a supplementary trans­
portation analysis and cost estimate filed as a Report to the 
court prior to the hearing) increases the estimate to 13,789 
but contains no school-by-school breakdown; the sources for 
this 1103 pupil increase in the estimate are thus unknown.
9/ It is to be noted that all schools shaded in yellow on
— Exhibits 1,2 and 3 are not necessarily schools in which 
greater desegregation is effected by rezoning, pairing or 
clustering. For example, the Hawkins Mill and Bruce Elemen­
tary zones (II X 1) are shaded yellow but no pairing or zone 
changes are made, and White Station elementary zone is shaded 
yellow although the only change is the addition of more white 
students from the Campus (closed) zone.

7



The Board's employees ran a total of 83 sample 
routes between school zones paired under Plan A in order to 
determine the length of a bus ride from the farthest resi­
dential area in one school zone to the receiving school (II 
X 6). The raw data thus gathered was adjusted to include 
five minutes per run for an estimated five pickup point 
stops for loading, and to simulate the additional delays 
which might typically be encountered in rush hour traffic.
The longest such time, as adjusted (the longest time any 
single student might spend on a bus ride although many pupils 
would board later and spend less time riding) was 34 minutes 
and the shortest 8 minutes. The average for the 83 runs 
was 16.38 minutes.

Plan B
Plan B was prepared by the Board team in response 

to the second directive in the district court's December 
10 decision:

The other set of recommendations shall 
be based upon an atterriDt to desegregate 
all schools necessary to the maintenance 
of the system so that no school will have 
a minority race of less than 30%. This set 
of recommendations shall not be based 
entirely on busing. It, too, should make 
use of other desegregation methods before 
transportation is to be used.

(Dec. 10 Op. 16). However, Plan B fails even to affect every 
existing one-race school.

With only two exceptions (II Tr. 136-37) , Plan B
incorporates Plan A, and expands thereon through non-contiguous

8



pairing. Plan B leaves 13 elementary schools over 90%
10/

black, and 14 senior high schools (10-12) remain either 
more than 90% black (6) or more than 90% white (8) (II X 
45). Under Plan B, 55 schools (27 elementary and 28 
junior and senior high) have enrollments which contain 
less than a 30% minority population (ibid.; Appendix B infra).

The Superintendent testified that no attempt was
made to desegregate the 14 black elementary schools (see
n.8 supra) which were not affected by Plan B because to
include them in the plan would have changed to predominantly
black status other schools which the Board would under Plan

11/B be able to maintain as majority white (II Tr. 1281).

Another defect in the elementary portion of Plan 
B is that in a substantially disproportionate number of 
instances of pairing and clustering, the lower grades (1, 2

10/ The 13 elementary schools are: Alton (99.4%), Caldwell
(100%), A .B. Hill (100%), Grant (98.7%), Florida (100%), 

Georgia Avenue (100%) , Kansas (100%) , LaRose (100%) , Leath 
(100%) , Locke (100%) , Longview (100%) , Mallory (90.9%) , and 
Riverview (100%). In addition, Plan B does nothing to 
affect Pope, which is 85% black (II X 45).

11/ The statistics reflect that of 87 elementary schools 
affected by Plan B, 51 are projected to be majority- 

white (see II X 45; Appendix B) in a system which is 
presently 56.4% black at the elementary level (II X 15).

9



and 3) are housed in the formerly white schools (II X 44) , 

with the discriminatory result that a disproportionate 
number of younger black children will be transported while
fewer younger white children will have to be bused (II Tr.

12/
808-09).

The junior high portion of Plan B (like that of 
Plan A) involves the pairing of junior highs so that two 
grades (7-8 or 8-9) are housed at one school and the 
remaining grade housed at the other school in each pair. 
The Board team utilized this technique (rather than the 
technique used by plaintiffs plan which does not split 
junior high grades, see below) despite its opinion that 
splitting junior high grades is not educationally sound, 
and despite the possibility that such a grade organization 
could result in a loss to the Board of $1,000,000 in state 
education funds. (II Tr. 191, 195-97, 201-02).

Plan B does not effect any changes at the senior 
high schools which are not already affected by Plan A 
(which is incorporated into and forms the base of Plan B).

12/ Dr. Stephens, head of the Board team, testified that he 
had no knowledge of any grade distribution disparity as 

between formerly white and black schools. (II Tr. 90). In 
direct contradiction, two Board members testified that the 
subject had come up at at least one closed session of the Board 
at which the plans were discussed, and that Dr. Stephens 
advanced as one reason for the disparity the proposition 
that black students were more independent at an earlier age.
(II Tr. 1170 (Smith); II Tr. 1175 (Johnson)). Dr. Stephens 
did aqreo, however, that the disparity could be altered if 
the court felt it placed a disnrooortionate burden on black 
first, second and third graders. (II Tr. 90).

10



Of the 27 schools serving grades 10-12 in Plan B, 19 would
13/remain racially identifiable.

The Board made transportation time estimates for 
Plan B similar to those for Plan A (II X 6) by running an 
additional 93 routes for the noncontiguous pairs added by 
Plan B. The largest time was one of 58 minutes and the 
average for all 176 routes was 22.52 minutes.

The plan prepared by plaintiffs' experts, quite
simply, desegregates all of the schools in the system. It
is feasible and educationally sound and provides the only14/
meaningful remedy of all the alternatives in the record.
(II Tr. 891-900, 992-1012) (The olan is described in detail 
at II Tr. 901-985). The following table (from II X 50) 
reflects the differences in numbers to be transported under 
Plan B and plaintiffs' plan:

Grade Levels 
Elementary (1-6)
Jr. High (7-9) 
Senior High (10-12)

Plaintiffs' Plan 
32,417 
15,598 
13,515 
61,530

Plan B Difference
23,033 9,384
14,118 1,480

831 12,684
15/

37,982 23,548

13/ The 19 are: Carber (99.9), Douglass (76.2), Hamilton (100),
Melrose (86.8), Mitchell (99.9), Southside (99.6),

Washington (99.9), Kinqsbury (0.1), Messick (11.4), Oakhaven 
(6.7), Overton (0.1), Ridgeway (1.3), Sheffield (17.8),
Treadwell (20.2), Trezevant (3.1), Westside (0.1), Whitehaven 
(13.2), White Station (4.5) and Wooddale (0). (II X 45,
Appendix B at pp. 66-75).

[Footnotes 14 and 15 are on the next page]

11



Plaintiffs' elementary plan, although it buses
9,384 puoils more than Plan B also thoroughly desegregates
all schools. (Compare supra the elementary segregation
which remains under Plan B). No claim is made anywhere in
the record that the additional busing under plaintiffs'
elementary plan is of such a nature as to risk the health
of children or significantly impinge on the educational
process. Dr. Stephens finds plaintiffs' plan equally
feasible (and, consequently, equally objectionable) to
Plan B. (II Tr. 151, 153). The times and distances
involved under plaintiffs' plan are comparable to those under
Plan R, and they are administratively and educationally

16/
feasible. (II Tr. 992-99; II X 56).

Plaintiffs' junior high plan is educationally 
preferable to the junior high portion of Plan B, and the 
additional expense which would be incurred in the small

14/ We have not mentioned the Board's alternative Plans I,
II and III, which propose very little desegregation and 

were summarily disposed of by the district court. See April 
20 Op . 22.
15/ As with Plan A (see note 8, supra), the initial trans­

portation estimate for Plan B was increased in the 
supplementary Report to the Court (II X 17) to 39,085 
students, but there is no way of knowing the schools or grade levels which produce the 1103 student increase (although the 
increase obviously occurs in the Plan A portion of Plan B).
16/ As to the general feasibility of times and distances

between schools, see testimony of Carl Smith, 4/1/70 Tr. 
1125 et seq. (times based on Memphis Transit Authority runs 
in operation).

12



amount of additional transoortation more than offsets 
the potential loss of $1 million in state aid which could 
result in junior high Plan B. (II Tr. 195-97, 202-05, 
969-70).

Plaintiffs' senior high plan is the only plan 
in the record which desegregates all senior high schools

13



ARGUMENT

The District Court Erred in Selecting 
A Plan for Implementation in September, 
1972 Which Does Not Eliminate Segregation 
In The Public School System And In Failing 
To Establish A Firm and Rapid Schedule For 
Implementation Of The Additional Steps 
Required To Establish A Unitary School 
System In Memphis

In its April 20, 1972 opinion accompanying the decree
from which this appeal is taken, the district court rather
frankly stated the bargaining process to which plaintiffs'
constitutional rights had been subjected:

In this case the Court has been faced with 
extreme opposite positions taken by the 
respective parties. On the one hand, it 
appears to the Court that the defendants 
have failed to recognize and acknowledge 
the interpretations of the Constitution 
which impose upon the defendants the duty 
to make every effort to achieve the greatest 
possible decree of actual desegregation. It 
further appears that the defendants have 
overemphasized solveable problems as "practi­
calities" which justify the continued operation 
of any effectively segregated system. On the 
other hand, it appears to the Court that the 
plaintiffs have overemphasized the guidelines 
of constitutional law, while failing to take 
into account the practicalities of the situation. 
Therefore, the Court has been called uoon to 
exercise its equity jurisdiction m  favor oT 
a plan between the two extremes..77 (emphalTs supplied).

The compromise of plaintiffs' rights by the district 
court was not a surprise to the plaintiffs, as it was accu­
rately Predicted in our post-trial brief submitted to the 
district court, where we said:

14



We do not attribute defendants' abdication 
of their responsibilities to a misunder­standing of the law; rather, we recognize 
that there is reasoning and purpose behind 
defendants' position. As has been the case 
throughout the twelve years during which 
plaintiffs, via this litigation, have been 
vigorously seeking vindication of their 
constitutional rights, the Board denies 
any responsibility to take further action.
The Board's reasoning is that the greater 
the gap between their position and olaintTif f s ' 
position, the less likely it is that the Court 
will order substantial relief" Thus,“reasons 
the Board, if they argue against any further 
desegregation (which they are doing) while 
plaintiffs seek complete relief, the Court's 
order will fall somewhere between the two 
positions. And m  this bargaining process 
defendants believe that the scope of the 
remedy afforded will be limited by the quantity 
of their best offer. So they offer nothing, (emphasis supplied)

The issues before this Court on appeal, therefore,
are whether the district judge erred in approving Plan A for
September, 1972 implementation and in failing (once having
taken this step) to set forth the requirement that complete
desegregation take place thereafter within the minimum time

17/necessary to meet "the practicalities of the situation."

References in the opinion of the court below suggest 
its view that Plan A will not create a unitary school system

17/ While the record clearly would have supported a district 
court order requiring .implementation of at least the 

elementary portion of plaintiffs' plan in September, 1972, we 
recognize that the passage of time, as well as this panel's 
stay order, make achievement of that result impossible even 
if the district court's order were reversed today. However, 
compliance with the terms of that order so as to implement 
Plan A and at long last begin the process of meaningful 
desegregation in Memphis is still feasible and will'remain

(Cont’d)

1 5



in Memphis, as required by the Fourteenth Amendment to the
Constitution and the decisions of this court and the Supreme
Court of the United States. Thus, for example, the court
follows its statement (April 20 Op. 29) that it believes
"the approved plan meets the requirements of the Constitution"
with its expressed hope that it "will afford the defendants
a means of ultimately achieving the goal of a desegregated
school system...." (emphasis supplied). The court earlier
concluded (April 20 Op. 23):

Upon consideration of all the plans, the 
proof offered at the hearing and the entire 
record in the cause, this Court is of the 
ODinion that Plan A, with certain modifica­
tions, meets the criteria established and 
required by the Constitution of the United 
States as interoreted by the authorities.
The practicalities of the existing situation 
in the City of Memphis limit the change in 
the plan of desegregation to this extent at 
the present time. Plan A will afford the 
defendant Board an opportunity to implement 
a system of transportation for its students, 
and thereby afford the defendants with an 
opportunity to observe the best ways and 
means for implementing further desegregation 
in the future. Plan A further meets the test 
of practicalities with regard to time of 
implementation and costs in the light of the 
circumstances existing at this time.

Since the district court does not explicitly 
establish a timetable for further implementation or development 
of a plan, or even announce the conclusion that Plan A will,

17/ (Cont'd)
feasible even after the scheduled oral argument in this cause. 
(See Ann. A at 17a-18a, and district court's "Order Overruling 
Motion for Contomnt" entered June 23, 1972).

16



if imDlemented, fail to completely satisfy the Constitutional 
requirements, we deal briefly with its inadequacies.

In the first place, the legal criteria under
which the plan was prepared were erroneous. The district
court had suggested in its December 10, 1971 opinion (p. 16)

18/
the prenaration of two plans, one of which

shall be based uoon the maximum use of 
pairing adjacent or nearby schools without 
transportation, changing zone lines of 
adjacent or nearby school zones, and closing 
some schools, plus the minimum use of trans­
portation of students by clustering, pairing, 
noncontiguous zones, or other methods.

Plan A, which the court itself describes as having been
prepared "in response to" the above directive (April 20 Op.
16) was limited to contiguous zone changes and contiguous
pairing and clustering. This was precisely the artificial
limitation upon remedy which had been adopted by the United
States Court of Appeals for the Fifth Circuit and which was
rejected by the Supreme Court in Davis v. Board of School
Comm'rs of Mobile County, 402 U.S. 33 (1971). Thus, Plan A
was based upon an unacceptable limiting principle in its very
design and could not satisfy the constitutional requirements
unless (fortuitously) the practicalities of the situation

18/ The suggestion was given as an instruction to the HEW 
team which had been requested by the court to prepare 

alternative desegregation plans for Memphis. The team later withdrew from participation in the case upon instructions 
from the United States government. See App. A at 14a-15a.
19/ See, e.a., Davis v. Board of School Comm'rs of Mobile

CountT'”, 4 30 F.2d 88 3 (Tth Cir. T9~7671 Mannings v. Board 
of Public Instruction of Hillsborough County, 427 F.2d 874, 
877 n. 2 f5tF~C irl 19 7 0), and accompanying text.

17



made any further desegregation 
achieve. Of course, the Board 
these conditions did not exist

in Memphis impossible to 
itself demonstrated that

2 0/
by its submission of Plan B.

Even a cursory study of the results which are
anticipated under Plan A reveals its total inadequacy.
Appendix C to this Brief shows past, present and projected
student enrollment in Memphis schools which were completely

21/
segregated one-race schools in 1969-70. The table demon­
strates that as to these schools, which even the Memphis 
Board concedes were segregated schools in 1969-70, there had 
been very little actual desegregation by 1971-72. Each of 
these 56 schools remained either all one-race or virtually

20/ To be sure, the Board denies the "practicality" of Plan 
B. But this denial by the Board and its witnesses is 

based on opposition to any busing of pupils for desegregation, 
and not the type of comparative analysis which the Supreme 
Court obviously had in mind in Swann and Davis when it spoke 
of the practicalities of the situation and busing which 
imoinqes on the educational process or endangers the health 
of children. The absurdity of the Board's position is 
demonstrated by Dr. Stephens' (head of the team) testimony 
that a 5-mile bus trip impinges on the educational process 
just as much as a 14-mile trip; that a short bus ride is just 
as objectionable, educationally, as a long one. (II Tr. 151, 153) .
21/ The table is prepared in part from the 1969-70 enrollment 

statistics furnished to this Court prior to the oral 
argument in Northcross v. Board of Educ. of Memphis, 420 F.2d 
546 (6th Cir. 1969). The 1969-70 statistics submitted to this 
Court separated schools into two groups: integrated and
non-integrated (totally one-race) schools, and the original 
table for the latter group, as submitted to the Supreme Court 
of the United States in Nothcross v. Board of Educ. of Memphis, 
397 U.S. 232 (1970) appears aT the end of Appendix-C~.

18



all one-race schools in 1971-72. Plan A was to have no 
effect whatsoever on the racial composition of 34 of these 
schools. At two additional schools which serve more than 
one grade level, only one such level would be affected.
Even the remaining schools, at which Plan A would result- 
in a different student population in 1972-73, can by no 
means be said to all be effectively desegregated.

Of the 34 one-race schools which would be completely 
unaffected by Plan A, 23 were virtually all-black schools in 
1971-72 and enrolled 24,388 black students, or 32.6% of the 
black pupils in the system (other than kindergarten and 
special education students, whose assignments will not be 
affected by Plan A). An additional 1112 black students were 
in grade levels of the two schools which were virtually all­
black in 1971-72 only some of whose grade levels would be 
reached by Plan A. Thus 25,500 (34.1%) black students 
attended virtually all-black schools or grade levels in 
1969-70 and 1971-72 which would not be affected at all by 
Plan A.

Eleven of the unaffected schools were all-white 
in 1969-70 and virtually all-white in 1971-72. These 11 
schools in 1971-72 enrolled 10,949 white students, or 16.9%

22/

22/ The token desegregation which did occur in some schools 
is largely accounted for by the faculty desegregation 

process and the privilege afforded teachers to enroll their 
children in the schools in which they taught.

19



of all whites in the system (exclusive of kindergarten 
and special education pupils).

As egregious as these figures are, they only 
begin to tell the story. II X 48 lists the 80 schools 
which under Plan A would be more than 90% of one race or 
the other, and II X 49 shows that 68,699 (or 47.4%) of 
Memphis students would remain in such schools under Plan A.

We think it is clear that the district court's 
action could only be sustained, if at all, as an interim 
measure adopted because of overbearing practical considera­
tions, primarily the nearness of the next school year, and 
we thus address the question whether the record will support 
the lower court's action on that theory.

It remains the school board's obligation, as it 
has always been, to establish reasons justifying any delay 
in implementing full desegregation, Brown v. Board of 
Education, 349 U.S. 294 (1955) or to demonstrate why consid­
erations of practicality make effective desegregation of any 
particular school or schools impossible, Swann v. Charlotte- 
Mecklenburg Rd. of Educ., 402 U.S. 1 (1971). The Memphis 
Board never attempted to meet its burdens in this case; it 
adopted the position, in spite of the clear imperatives of 
Swann and companion cases, that any use of pupil transportation 
was, in the opinion of its administrators, harmful to the

20



educational process and should therefore be proscribed 
as part of a desegregation plan. The district court pro­
perly rejected this position. See Kelley v. Metropolitan 
County Bd. of Educ., No. 71-1778 (6th Cir., May 30, 1972).
The average times for bus routes, from start to finish, under 
Plans A and B, of 16 and 22 minutes, respectively, can 
hardly be said to seriously affect the process of education. 
Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 
30 (1971).

While it is clearly proper for a district court to
permit staggered implementation of a plan to convert from a
dual school system to a unitary one in order to permit the
necessary acquisition of transportation facilities, see Mapp
v. Board of Educ. of Chattanooga, 329 Supp. 1374, 1388 (E.D.
Tenn. 1971) , appeal pending, or to approve an inadequate plan
on an interim basis because it represents the maximum which
can be achieved at a given moment in time, see Bradley v.
School Board of Richmond, 317 F. Supp. 555 (E.D. Va. 1970),
in such instances the Constitution and application of the
doctrine of Alexander v. Holmes County Bd. of Educ., 396 U.S. 

23/
19 (1969) require that a complete plan to bring about conver­
sion to a unitary school system be effectuated within the

23/ See also, Carter v. West Feliciana Parish School Bd., 
396 U.S. 226 0-969) , 290 (1970) ; Northcross v. Board 

of Educ. of Memphis, 397 U.S. 232 (1970).

21



minimum necessary time. See Carter v. West Feliciana
Parish School Bd., 396 U.S. 290, 293 (Mr. Justice Harlan, 
concurring) .

Here the district court utterly failed to set 
forth, in other than conclusory terms, the practicalities 
which led it to approve the limited Plan A for 1972-73 in 
preference to the alternatives achieving a greater degree 
of desegregation —  and then it failed to require comple­
tion of desegregation at the earliest practicable opportunity. 
For example, the court discussed the various transportation 
cost estimates offered by the parties (April 20 Op. 20-22), 
concluding that actual costs would be somewhat higher than
these, but it made no finding that the money could not be 

24/
raised nor even compared the projected expenditures 
against the Board's $98 million annual budget. See Brewer 
v. School Bd. of Norfolk, 456 F.2d 943, 947 n.6 (4th Cir.), 
cert. denied, 40 U.S.L.W. 3544 (1972).

The district court's opinion likewise contains 
no judgment that the transportation proposed under any of 
the alternative plans is unreasonable or injurious to health 
or safety of students. The district court simply concluded,

24/ Obviously the court could, if necessary, require sufficient 
appropriations. Kelley v. Metropolitan County Bd. of 

Educ., suora, slip op. at p. 24; Brower v. School Bd. of 
Norfolk, 456 F.2d 943 (4th Cir.), cert, denied, 40 U.S.L.W.
3544 (1972); Bradley v. School Bd. of Richmond, 325 F. Supp.
828, 846-47 (E.D. Va~! 1971) and cases cited; Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265, 269 
(E.D.N.C. 1970).

22



without further substantiation, that
[t]he practicalities of the existing 
situation in the City of Memphis limit 
the change in the plan of desegregation 
to this extent at the present time.

(April 20 Op. 23).

Whatever may have been the situation on April
20, 1972, we concede that only Plan A can presently be

25/
implemented by September, 1972. The district court 
should have required, however, that plans be immediately 
made for dismantling the segregation remaining after Plan A,

25/ At the time of our post-trial brief, submitted to the 
district court prior to its April 20 decision,we said: 

"There appears no nuestion that plaintifs' plan can be 
implemented by the second semester of next school year (Tr. 
1011), but there is some question as to feasibility of 
September, 1972 implementation. Mr. Nolan [defendants' 
transportation expert] testified that he could implement 
Plan A (busing approximately 13,000 pupils) by September 
on a contract basis, but that he would not guarantee 
implementation of Plan B (busing 40,000 pupils) by September, 
and would undertake such a program only on a cost-plus 
basis. (Tr. 476-78; 480-81). More than Plan A could be 
accomplished by the fall, in Mr. Nolan's view, by using 
existing charter bus avilability from MTA and Transports,
Inc. (Tr. 491-92). Thus, by using existing charter buses 
to implement Plan A, and having Mr. Nolan bus an additional 
13,000, a transportation system for 26,000 kids could be 
implemented by September, even in Mr. Nolan's view. Thus, 
viewing the evidence in a light most favorable to defendants, 
it would seem that the prospects for implementing plaintiffs' 
elementary plan (32,417 bused) by September are very good.
Dr. Foster [plaintiffs' expert] believes that all of 
plaintiffs' plan could be implemented by Fall if the proper 
committment is made. (Tr. 1006-1011). And the Court should 
order plaintiffs' plan to be implemented by September. The 
Board will then bear the burden of justifying delay of any 
portion of the plan. The important thing is that a prompt 
start by made to implement the entire plan at the earliest 
practicable date." (Plaintiffs1 Post-hearing Brief at 
17-18) .

23



"that some demonstrable progress be made now and that a 
schedule be adopted forthwith in order that a constitutional 
plan will be implemented at the... [earliest practicable date]." 
Acree v. County Bd. of Educ. of Richmond County [Augusta], Ga., 
458 F.2d 486, 488 (5th Cir. 1972). As examples of the type 
of "demonstrable progress [to] be made now," the court in 
Acree said that "transportation facilities needed as a result 
of the plan should be arranged, funds applied for, budget 
changes contemplated, etc." Id. at 488 n.2. See also, Mapp 
v. Board of Educ. of Chattanooga, supra.

No progress in eliminating school segregation in
Memphis will ever be made, however, if the stay of the very
minimal and inadequate order issued by the district court
remains in effect. We have already expressed our views on
the lack of any legal basis for issuance of that stay in the
Suggestion of Hearing En Banc and Motion to Vacate Stay filed
in Misc. No. 1576 on June 6, 1972, and which we respectfully
incorporate herein by reference. Under applicable rulings of26/
the Supreme Court, we can conceive of no arguable basis for

26/ The only stay granted or permitted to remain in effect 
in a school desegregation case by the Supreme Court in 

recent years was in Cisneros v. Corpus Christi Independent 
School Pist. , 404 U.sT 120 8 (1971) , which is readily 
distinguishable from this case. Compare Edgar v. United 
States, 404 U.S. 1206 (1971).

24



the panel's action granting a stay even as there was 
no foundation for the conclusion that Alexander v. Holmes 
County Board of Educ., 396 U.S. 19 (1969) did not apply to 
this school system in 1969. The stay should be immediately 
vacated by this Court even prior to the scheduled oral 
arguments.

27/

27/ This expedited aopeal could have proceeded without a
stay which halted preparatory procedures and planning, 

since a decision could be rendered in time to prevent 
implementation if the Board prevails in its argument that 
no desegregation in Memphis is required.

25



CONCLUSION

For the foregoing reasons, plaintiffs-
cross-appellants respectfully pray that the stay heretofore
granted by this Court be immediately vacated and that
this case be remanded to the district court for the
establishment and execution of an expedited schedule of
such further proceeding as may be necessary to complete
the desegregation of the Memphis public schools at the
earliest practicable date, and in no event later than
the commencement of the 1973-74 school year.

Respectfully submitted,

'.nnT.q r T.iTr'A.q vLOUIS R.  LUCAS v
WILLIAM E.  CALDWELL 
URAL B.  ADAMS, J R .

Ratner, Sugarmon and Lucas 
525 Commerce Title Building Memphis, Tennessee 38103

U  /AI'JLCj O  ILL • L N /j D a  J .  1  ^ 1  i  1

NORMAN J. CHACHKIN 
10 Columbus Circle New York, New York 10019

Attorneys for Plaintiffs- 
Cross-Appellants

26



CERTIFICATE OF SFRVICE

This is to certify that two (2) copies of the
foregoing brief have been served upon counsel of record
by hand delivery, as follows:

Jack Petree, Esq.
Ernest Kelly, Jr., Esq.
Suite 900
Memphis Bank Building 
Memphis, Tennessee 38103
Attorneys for Defendants-appellants
Rowlett W. Scott, Esq.
Commerce Title Building 
Memphis, Tennessee 38103
Attorney for Amicus Curiae

tJdLu. <2.WILLIAM E. CALDWELL
Dated: June 30, 1972



APPENDIX A

HISTORY OF NORTHCROSS V. BOARD OF EDUC.
• _____ OF THE MEMPHIS CITY SCHOOLS______

This class action suit was originally filed under 28 
U.S.C. §1343 and 42 U.S.C. §1983 by black minor school children 
and their parents to desegregate the Memphis City schools on 
March 31, 1960; the district court denied injunctive relief and 
upheld the Tennessee Pupil Assignment Lav/. On appeal, the court 
of appeals reversed, with instructions to the district court "to 
restrain the defendants from operating a biracial school system 
in Memphis, or in the alternative to adopt a plan looking towards 
the reorganization of the schools in accordance with the Consti­
tution of the United States." Northcross v. Board of Educ. of 
Memphis, 302 F.2d 818, 824 (6th Cir.), cert. denied, 370 U.S.
944 (1962).

On remand, the school district submitted, and the district
1/court approved, a stair-step plan incorporating geographic zoning 

and minority-to-majority transfers. On appeal, the court of

1/ The original plan of desegreaation affected grades 1-3 for the 
school year beginning September, 1962. Grade 4 was to be desegre­
gated during the 1963-64 school year and one additional grade per 
year thereafter. The court of appeals ordered the pace accelerated 
to desegregate junior high school grades in September, 1965 and 
senior high schools in the fall of 1966. 333 F.2d at 665.

la



appeals invalidated the minority-to-majority transfer feature 
and directed close scrutiny of all zone lines because it found 
substantial evidence that the boundaries approved by the district 
court had been "gerrymandered to preserve a maximum amount of 
segregation." Northcross v. Board of Educ. of Memphis. 333 F.2d 
661, 663 (1964) .

On May 13, 1966, plaintiffs filed a Motion for Further 
Relief seeking the adootion of a new desegregation plan. A 
modified plan incorporating minimal zone changes and unrestricted 
transfers was submitted by the Board on July 26 and aoproved by 
the district court without hearing on July 29, 1966. The court 
made no ruling upon plaintiffs' Motion for Further Relief. A 
second Motion for Further Relief, based in part upon Green v.
County School Bd^ of New Kent County, 391 U.S. 430 (1968) and 
companion cases7 was filed July 26, 1968, seeking (1) cancellation 
of all transfers which reduce desegregation in the school system, 
(2) complete faculty desegregation, (3) a survey of the location of 
facilities, pupils, etc., with a complete report thereon submitted 
to the district court, (4) adoption of a new plan of desegregation, 
prepared with the assistance of the Title IV Desegregation Center 
of the University of Tennessee, and based on unitary geographic

2/ The 
391 U.S 
391 U.S

companion cases 
450 (1968) and 
443 (1968).

are M°nroe v. Board of Comm'rs of Jackson. 
Raney v. Bd. of Educ. of Gould School Dist.,

2a



zones, consolidation of schools or pairing, but without an 
unrestricted free transfer.

Following the filing of the Green Motion on July 26, 1968,
the district court on August 23, 1968 declined to order any relief
for the 1968-69 school year because of the imminent reopening of

1/school. No hearing on the motion was scheduled until after the 
survey report was filed by defendants on December 23, 1968. 
Thereafter, hearings were held from February 6-11, 1969; the 
district court's ooinion (unreported) rendered May 15, 1969, and a 
formal order entered May 23, 1969.

The district court held in its May 15, 1969 opinion that 
"the existing and proposed plans do not have real prospects for 
dismantling the state-imposed dual system at the 'earliest practi­
cable date.'" The district court declined to void the free transfer 
system, but found that "[t]he zones are in need of revision for 
many purposes, including further desegregation where feasible." 
Revised zone boundary lines together with enrollment projections 
were to be filed January 1, 1970. The district court denied 
plaintiffs' prayer for an injunction restraining any further school

3/ The district court deferred ordering the facilities and pupil 
surveys requested in the Motion for Further Relief pending receipt 
of briefs from defendants in suooort of their argument that Green 
was inaDplicable. Hearings were held November 8 and 11, 1968 to 
determine whether defendants should be reauired to make the surveys. 
On November 21, 1968, the district court ordered the studies to be 
undertaken and a report thereon filed within 45 days.

3a



construction until new zone lines were formulated and approved, 
and required only a 20% system-wide assignment of faculty across 
racial lines for 1969-70.

On June 12, 1969, plaintiffs filed with the court of appeals 
a Motion for Summary Reversal of the district court's judgment.
On June 18, 1969, the court of appeals declined to consider the 
motion until the complete transcript of testimony was filed. The 
court reporter thereafter advised the court uoon instruction of the 
district judge and at the request of plaintiffs' counsel, that the 
transcript could not be prepared until September. A second motion 
renewing plaintiffs' request that the court proceed on the basis 
of the printed Appendix supplied with the motion and the exhibits 
forwarded from the district court was likewise denied, although a 
major ground relied upon for summary reversal was the district 
court's failure to require new zone lines to be effectuated for 
1969-70 after finding in May, 1969 that the "the existing and proposed 
plans do not have real prospects for dismantling the state-imposed 
dual system at the 'earliest practicable date'."

Following the Supreme Court's decision in Alexander v. Holmes 
County Bd. of Educ., 396 U.S. 19 (1969), plaintiffs filed with the 
court of appeals on November 3, 1969, a Motion to Require Adoption 
of a Unitary System Now. On November 13, 1969, plaintiffs filed a 
Motion to Convene an Emergency Panel of the Sixth Circuit to hear 
and determine the Alexander motion. The following day, the transcript

4a



was received by the court; the convening of an emergency panel 
was denied and the Alexander motion passed for consideration by 
the regular panel of the court which would hear the appeal, which 
was then calendared for argument on December 17, 1969.

Following oral argument, the judgment of the court of appeals 
was issued December 19, 1969 (420 F.2d 546), remanding the case to 
the district court for further consideration of the Motion for 
Further Relief and the plan or any admendment thereto to be presented 
to the district court as required by its order of May 23, 1969.

Plaintiffs then filed a Motion for Injunction Pending 
Certiorari, praying that the court of appeals, pursuant to Alexander 
and to the December 13, 1969 order of the Supreme Court granting 
temDorary relief in Carter v. West Feliciana Parish School Bd.,
396 U.S. 226 (1969), direct the district court to implement changes 
during the second semester of the 1969-70 school year. On January 
12, 1970, the court of appeals denied the Motion for Injunction, 
stating (420 F.2d 548):

We are satisfied that the respondent Board of Education 
of Memphis is not now operating a 'dual school system' 
and has, subject to complying with the present commands 
of the District Judge, converted its pre-Brown dual 
system into a unitary system "within which no person 
is to be effectively excluded because of race or color."
On March 9, 1970, the Supreme Court granted plaintiffs'

petition for certiorari and remanded the case to the district court
"with direction that the District Court proceed promptly to

5a



consider the issues before it and to decide the case consistently 
with Alexander v. Holmes County Board." 397 U.S. 232 (1970). The 
Supreme Court reversed the court of appeals' holding that Alexander 
was inapplicable to the Memphis system and found "substantial 
evidence" to support the district court's finding that defendants 
were still operating a dual school system.

On remand, the district court entered an order setting a 
hearing on April 1, 1970 to consider seven issues: (1) whether
the defendant Board was then operating a unitary system; (2) whether 
the court should require defendants to adopt a new or modified plan 
utilizing any one or more, or a combination of such methods as 
rezoning, pairing, contiguous zones or cross-transportation of 
pupils between zones, and if so, to what extent; (3) whether the 
court should eliminate the free transfer policy; (4) whether the 
court should require a faculty desegregation ratio which, within 
a margin of 10%, would reflect the system-wide racial ratio of 
the faculty; (5) whether the court should enjoin further construc­
tion by the defendants pending adoption of a new plan; (6) whether 
a new plan should be requested from an expert from outside the 
system; and (7) when should any relief granted by the Court be 
placed into effect.

The hearing commenced on April 1, 1970 and lasted seven and 
one-half trial days. On May 1, 1970 the district court entered its 
opinion (312 F.Supp. 1150), and on May 4, 1970 its implementing

The court held that the defendants were "not maintaining aorder.



unitary system,” largely because of the free transfer policy 
and continued faculty segregation, but the court rejected pairing 
and transportation as desegregation techniques for Memphis. The 
court altered the free transfer policy so that majonty-to-minonty 
transfers would, with two limited exceptions, be prohibited; 
majority-to-majority and minority-to-minoritv transfers would 
continue to be allowed. In the area of faculty desegregation, 
the district court held, in effect, that defendants had not 
complied in good faith with the court’s May, 1969 faculty desegre­
gation order, and the court therefore ordered the defendants to 
seek the assistance of the Title IV Educational Opportunities 
Planning Center at the University of Tennessee in preparing for 
further faculty desegregation. The Title IV Center subsequently 
filed a faculty desegregation plan, the Board filed a counter­
proposal, and the court conducted a hearing thereon. On July 21, 
1970, the district court entered an order essentially approving 
the Title IV Center faculty plan and requiring that by the 
beginning of the 1971-72 school year the white-black ratio of each
school's faculty should be within 10% of the system-wide white-

1/black faculty ratio.

4/ The district court thus allowed defendants two school years 
within which to comolete faculty desegregation requirements, 
although the Title IV Center had noted that Administration policy 
and the law (Singleton v. Jackson Municipal Separate School Dist._, 
419 F.2d 1211 (5th Cir. 1969)), required immediate completion of 
the faculty desegregation process.



Plaintiffs appealed from the orders of the district 
5/

court, and oral argument was held in the court of appeals on 
February 11, 1971. After oral argument, but before decision of 
the appeal, defendants filed in the district court a notice of 
intent to acquire sites and construct two new schools in the 
southwestern part of the system, to which plaintiffs filed 
objections. The district court conducted, on February 19, 1971, 
a hearing on plaintiffs' objections to the proposed site acquisi­
tion and construction, and orally overruled plaintiffs' objections 
at the conclusion of the hearing. This ruling was incorporated in 
a formal order and plaintiffs application for an injunction 
pending appeal was denied by order of the same date.

Plaintiffs then moved in the court of appeals for an 
injunction restraining the proposed site acquisition pending appeal. 
On March 24, 1971, the court of appeals, without the benefit of 
oral arguments or briefs, entered a per curiam opinion denying the 
motion for injunction pending appeal and affirming on the merits 
the district court's approval of the site acquisition and construc­
tion proposals. Plaintiffs thereupon filed an application for

5/ Defendants noticed an appeal from the faculty desegregation 
order of July 21, 1970, but the appeal was never perfected 
(although the court of appeals apparently considered the Board's 
cross-appeal to be viable at the time of the June 7, 1971 remand 
opinion, 444 F.2d 1179).



rehearing en banc on April 5, 1971.

On June 7, 1971, the court of appeals remanded the 
case to the district court for reconsideration in light of the 
Supreme Court's April 20, 1971 decisions in Swann v. Charlotte- 
Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) and Davis v. Board 
of School Comm'rs., 402 U.S. 33 (1971), and for adoption of a new 
plan of desegregation. 444 F.2d 1179. By opinion of the same date 
the court of appeals denied plaintiffs' petition for rehearing en 
banc on the site acquisition-construction issue. 444 F.2d 1184.

On remand, the district judge, by letter dated June 10,
1971, informed counsel that he had school-age sons, one of whom
was and would be in attendance in the defendant school system, and:

If counsel for the plaintiffs or defendants or 
their clients are of the opinion that I should 
recuse myself from the case due to the fact that 
I have school age sons, a notice to that affect 
should be delivered to Lloyd Johnson, the Clerk 
of this Court. If the Clerk receives such a 
notification he, in turn, will advise me that he 
has received it without disclosing which attorney 
delivered the notice. I will then request the 
designation of another judge. (emphasis added).

On June 11, 1971, before plaintiffs had made a final decision 
regarding the district judge's June 10 letter, the court held a 
pretrial conference at which it was agreed that, regardless of the 
parties' responses to the letter, the court could enter a preliminary 
order requiring the Board to take certain steps such as the

9a



preparation of a pupil locator map and a request for assistance 
from outside experts in the preparation of a constitutional plan 
of school operation. (6/11/71 Transcript of Pretrial Conference 
at pp. 52,60). (No such order was ever entered, however.)

June 16, 1971, plaintiffs filed with the district court 
clerk a request for designation of a new judge to preside over 
the case pursuant to the district court's June 10 letter. On 
June 24, 1971 the district court entered an order forwarding 
plaintiffs' request to the chief judge of the court of appeals, 
with the provision that "no further Droceedings will be conducted 
until this motion is resolved." On July 12, 1971 the Chief Judge 
entered an order denying the request for designation of a new 
judae and ordered the case tried by the district judge to whom it 
is assigned, Hon. Robert M. McRae, Jr.

On July 27, 1971, the district court entered an "Order 
Pertaining to Assistance" authorizing the Division of Equal 
Educational OpDortunities, U.S. Office of Education, Department of 
Health, Education and Welfare, to assign qualified personnel to 
assist defendant Board in carrying out the court of appeals' mandate 
of June 7, 1971. The order also directed defendants to implement 
a majority-to-minority transfer plan with free transportation prior 
to commencement of the 1971-72 school year, but held that no further 
desegregation would be required by the opening of school.

10 a



On July 28, 1971, the district court denied a motion by 
plaintiffs for leave to employ an expert at defendants' expense 
for the purpose of preparing a desegregation plan for plaintiffs.

On August 11, 1971, the district court held a conference 
with counsel, Board personnel and the HEW-designated team, at which 
it was determined that the team would make a preliminary investi­
gation of the system pursuant to the July 27 order and that the 
Board would begin preparation of a pupil locator map. On September 
9, 1971 the district court held another conference to determine the 
progress of the Board and the team. The team reported that it had 
made a preliminary investigation but that there were several 
questions to which it sought answers before proceeding further.
(9/9/71 Tr. 8-11). Of the seven questions proposed by the team, 
the court considered one of the questions--whether the team should 
consider the racial composition of any school as "de facto," which 
should therefore be left alone--of such consequence as to require 
a hearing. (9/9/71 Tr. 37-39, 44). Plaintiffs took the position 
that there were no real issues and that the team should be required 
to prepare a plan which would produce the greatest possible amount 
of actual desegregation, taking into account the practicalities of 
the situation. (9/9/71 Tr. 52). Over the objection of plaintiffs, 
both as to timing and the necessity for a hearing, the district 
court scheduled the hearing for November 15, 1971. (9/9/71 Tr. 43-44,

11 a



46). On September 14, 1971, the district court entered an order 
setting a hearing for November 15, 1971 "for the purposes of 
determining certain factual and legal issues and providing guidance 
to the Board and the team."

On or about September 22, 1971, plaintiffs filed in the 
court of appeals a petition for a writ of mandamus or for alter­
native relief seeking to have the district court promptly schedule 
the hearing set for November 15, 1971. The court of appeals 
entered an order on October 26, 1971 denying the petition for a 
writ of mandamus or for alternative relief. (No. 71-1794, Order 
of October 26, 1971).

In the meantime, on September 28, 1971, the district court 
entered an order setting forth the issues to be determined at the 
hearing scheduled for November 15, 1971, and directing defendants 
to file "any proposed desegregation plan changes which the Board 
intends to recommend in view of the Court of Appeals opinion 
remanding this case to the Court for consideration in the light of 
Swann and Davis." Pursuant thereto defendants subsequently filed 
a document entitled "The Memphis Plan."

A pre-trial conference was conducted on November 5, 1971 
and on November 8, 1971 the district court entered a pre-trial 
order enjoining defendants from entering into any land purchases 
or construction contracts with regard to notices of intent

12 a



previously filed and further clarifying the matters to be 
considered and the procedure to be followed at the November 15 
hearing. The order also defined a "virtual one-race" school as 
one in which the predominate race is 90% or more, which definition 
was to be a guideline.

Prior to the November 15 hearing a white community 
organization, Vollentine Evergreen Community Action Association, Inc., 
and certain of its members^ petitioned the court for leave to 
intervene as amicus curiae and to participate in oral arguments, 
alleging that the petitioning organization was organized for the 
purpose of promoting and maintaining a stable racially integrated 
residential neighborhood in an area of Memphis included in the 
Northside High School zone. Petitioners further alleged that they 
were being forced to bear an unfair and disproportionate share of 
the desegregation burden as a result of defendant Board's segrega­
tion policies, and requested a truly integrated high school at 
Northside. The petition to intervene amicus curiae was allowed 
by order entered November 15, 1971.

The November 15 hearing lasted eight trial days and the 
court heard closing arguments of counsel on November 26, 1971.
On December 10, 1971 the district court filed its Memorandum 
Decision and a separate Judgment concluding that the Board had not 
carried its burden of proving that existing school segregation was

13a



not related to the historic operation of the system:
In regard to the over-all issue of one-race schools, 

this Court concludes that the proof establishes that 
the defendant Board and its predecessors have played 
a significant role in establishment of the present large 
number of one-race schools which have resulted from 
discrimination by numerous persons and groups. There­
fore, it is incumbent upon the Court to require the 
Board to request that the team of the Division make 
recommendation to the defendant Board for ways that it 
should amend its present plan of desegregation to the 
end that the Memphis schools will be in compliance 
with the Constitution of the United States.

(December 10 Memorandum Decision at 12). The court then set forth
criteria to be utilized in the preparation of two alternative plans
by the HEW-designated team. (December 10 Memorandum Decision at
16-17).

Defendants thereafter filed a motion to alter or amend 
the Memorandum Decision of December 10, 1971, which motion was 
denied by order entered on December 21, 1971.

The district court's December 10 judgment directed that 
"pursuant to a prior request made by the defendant Board of 
Education, the personnel designated by the Division of Equal 
Educational Opportunities of the United States Office of Education 
will immediately undertake to further investigate and make 
recommendations to the defendant Board in accordance with the 
Memorandum Decision of the Court." On January 6, 1972, however, 
the Associate Commissioner of Equal Educational Opportunity of 
the United States Office of Education wrote the head of the

14 a



The district court entered an order on January 12, 1972, 
concluding that the "belated and unexpected change in policy and 
procedure [by HEW] causes the Court to conclude that neither it 
nor the Board can rely upon the proffered assistance of the 
Department of Health, Education and Welfare in carrying out the 
mandate of the Court of Appeals." The court therefore relieved 
the HEW team from further participation in the case and directed 
the defendant Board to comply with the judgment of December 10 
and prepare the two plans directed by the court's December 10 
Decision. Plaintiffs thereafter moved to amend the order of 
January 12, 1972 to require the Board or have the court employ 
outside consultants experienced in desegregation planning to 
prepare the two plans, and further to establish a strict timetable 
for the preparation thereof. The district court held a conference 
on plaintiffs' motion on January 25, 1972 and entered an order on 
January 28, 1972 denying the essential elements of plaintiffs' 
motion. The defendant Board them designated a team of its staff 
to prepare the two plans directed by the December 10 judgment;
several conferences were subsequently held pertaining to the

6/
progress of preparation.

HEW-designated team placing restrictions on the activities of
the team pursuant to the district court's judgment.

6/ On March 1, 1972 plaintiffs filed a motion for a temporary 
restraining order or preliminary injunction to restrain defendants 
from enrolling any more students (resulting from a new public

15a



On March 21, 1972 defendant Board filed a motion to 
delay the scheduled March 28 hearing, which motion was based on 
a message to Congress delivered by the President of the United 
States on March 17, 1972 opposing the use of transportation for 
the purposes of school desegregation. By order entered the same 
date, the district court denied defendants' motion to postpone 
the March 28 hearing, which began as scheduled and lasted seven 
trial days. On April 20, 1972, the district court issued it 
Memorandum Decision adopting Plan A, which had been prepared by 
defendant Board's staff (but to which defendant Board had objected), 
and directing that said plan be implemented by the beginning of 
the 1972-73 school year.

Upon consideration of all the plans, the proof 
offered at the hearing and the entire record in 
the cause, this Court is of the opinion that Plan 
A, with certain modifications, meets the criteria 
established and required by the Constitution of 
the United States as interpreted by the authorities.
The practicalities of the existing situation in the 
City of Memphis limit the change in the plan of 
desegregation to this extent at the present time. Plan 
A will afford the defendant Board an opportunity 
to implement a system of transDortation for its 
students, and thereby afford the defendants with 
an opportunity to observe the best ways and means 
for implementing further desegregation in the

6/ (Cont) housing project) in the already overcrowded black 
Geeter school. The motion was resolved by consent decree 
entered on March 13, 1972 wherein defendants agreed to assign 
all new incoming students in the Geeter zone in grades 1-9 
to the nearest school of the onposite predominate race, 
providing transportation where necessary.

1 6  a



future. Plan A further meets the test of practi­
calities with regard to time of implementation and 
cost in the light of the circumstances existing at 
this time.

(April 20, 1972 Memorandum Decision at 23). The district court 
entered its brder on April 21, 1972.

On May 1, 1972 defendant Board filed a notice of appeal
and simultaneously filed a motion to stay the district court'sV
order. Subsequently the Board, by letter, requested certain 
modifications of the April 21 order primarily having to do with 
pupil transfers. On May 5, 1972, the district court entered an 
order supplementing its April 20 Memorandum Decision and the order 
of April 21, 1972 in accordance with certain agreements reached 
at a post-hearing conference. On the same day, the district court 
entered an order denying defendants motion for a stay pending 
appeal, and defendants subsequently applied to the court of appeals 
for a stay.

On May 22, 1972, before the court of appeals had acted on 
the stay application, defendant Board voted to delay entering into 
a pupil tansportation contract for implementation of the court- 
ordered Plan A. Believing that the Board's action was designed 
to and would have the effect of frustrating compliance with the

7/ Plaintiffs noticed a cross-appeal on May 16, 1972 from the 
district court's failure to require completion of the desegregation process.

1 7  a



district court's order, and suoported by the affidavit of one 
Board member, plaintiffs, on May 23, 1972, moved in the district 
court for a judgment of contemDt against defendants. The 
district court conducted an evidentiary hearing the same day. 
Defendants took the position that although their delay action 
might have ruled out any possibility of entering into a contract 
with the low bidder (a private transportation company in Kansas 
City, Missouri), they could contract for imolementation of Plan A 
with the Memphis Transit Authority (the local public carrier) as 
late as the month of July. (5/20/72 Tr. 23-24). The district 
court denied the contempt motion, finding that respondents' "action 
did not mean that the plan could not be implemented by the coming 
year." (District Court's Oral Ruling, 5/22/72 Tr. 125). The court's 
oral ruling was formalized in an order entered June 23, 1972.

On June 2, 1972, the court of appeals stayed the district 
court's order pending appeal. (Misc. No. 1575). On June 6, 1972 
plaintiffs filed in the court of appeals a suggestion for hearing 
the appeals in this case en banc and motion to vacate the stay 
order of June 2. That suggestion and motion is still pending.

1 8 a



•
APPENDIX B

1 II X 45
COMPARISON OF PLAINTIFFS' PLAN, BO.ARDS PLANS A AND B

a n d status quo WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFS' PLAN
BOARD'S 
PLAN A

BOARD'S 
PLAN B

Qcy (1-6) 99.4 (SE,K-3), 56.5 (1-3) , 55.0 (1-3 . 55.C

\lton (1-3) 99.4 (3-4) , 60.9 N.C. N.C.

Won (1-6) 11.0 (SE& 3) , 58.5 N.C. (1) . 66.0

lalmoral (1-6) , 0.7 (5-6) , 58.0 N.C. (4-6) . 52.0

3erclair (1-6) , 0 (K-2), 62.6 N.C. (2-3) , 50.2

Bethel Gr. (1-6) 92.7 (1-3) , 52.2 N.C. (5-6) , 43.6

3rookneade (1-6) , 0 (SE ,K-2) , 62.6 N.C. (4-6), 47.3

3ruce (1-6) 42.7 (K&3-4) , 66.1 N.C. N.C.
Caldwell (1-6) 100 (SE&K-3) , 56.5 N.C. N.C.
CamDUS (1-6), 0.7 (5-6) , 45.8 Closed Closed

Games (1-8) 99.4 (3-6) , 50.1 (1-6) , 85.5 (4-6) , 46.0

CarDenter (1-3) 100 Closed Closed _____Clnsed------
Charjean (1-6) , 9.0 (4-6) , 63.2 (4-6) , 65.0 (4-6) , 65.0

Cherokee (1-6) 58.0 (K-6) , 57.7 (3-6) , 45.1 (3-6) , 45.1

Chicago Pk. (1-6) 100 (K-3), 59.9 (2-3) , 33.8 (2-3) , 33.8

Chickasaw (1-6) 89.0 Closed (1-6&9) 62.7 (1-2&9) 40.8

Colonial (1-6) , 0 (K-l) , 58.1 N.C. (3-4) , 41.2

Corning (1-6) , 0 (SE&K-2), 60.9 N.C. (1-2) , 50.0

Coro Lake (1-8) 27.2 (1-6), 27.2 (1-2) , 77.0

Cromwell (1-6) , 0 (K-3), 56.3 N.C.________ __________
(4-6) , 46.8

Cummings (1-6) 100 (4-6) , 52.1 N.C. (5-6), 35.7

Delano (1-6) , 0 (4-6) 56.8 (1-6), 27.9 (1-6) , 27.9

Denver (1-6) , 0 (5-6) , 6 0.8 N.C. (1-2), 40.0

Doug 1 nsr» (1-6) 1J0 (1-4) , 4 8.1 (3-6) , 50.0 (3-6) , 50.0





COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL PLAINTIFFS' BOAPXl'S BOARD'S
.NAME __________ PRESENT_________ PLAN________ PLAN A______PLAN B

iwkins Mill (1-6), 21.6 (SE&4- 6) , 63.8 N.C. N.C.

. B. Hill (1-6) 100 (3-6) , 53.4 N.C. N.C.
Dllywood (1-6) 100 (4-6) , 50.8 N.C. (4-6), 49.6
d̂e Park (1-6), 99.6 (SE&K-4) , 61.4 N.C. (1-2), 51.5
ilewild (1-6), 14.4 (1-2) , 66.7 (1-3), 57.3 (1-3), 57.3
ickson (1-6) , 0 (SE&K,5-6) , 50.4 (1-2), - 47.3 (1-2), 47.3
insas (1-6) 100 (3-6) , 51.7 N.C. N.C.
Lngsbury (1-6), 0 Closed N.C. (3-4) , 47.9
Londike (1-6) 100 (SE&K-2), 69.8 N.C. (5-6), 27.0
night Rd. (1-6), 0 (SE&K&4-6) , 46.5 N.C. (1-3), 49.1
akeview (1-8) , 97.2 (1-2) , 44.5 N.C. (3-4) , 77.0
a Ro se (1-6) 100 (SE,K-3) , 63.4 N.C. N.C.
auderdale (1-6) 100 (SE&K-l) , 67.4 N.C. (1-2), 51.5
awler (1-6) , 2.7 (SE&1-6) , 27.1 Closed Closed

eath (1-6), 99.6 Closed N.C. N.C.
enox (1-6) , 0 Closed Closed Closed
ester (1-6) 100 (5-6) , 62.5 (4-6) , 42.0 (4-6) , 42.0
evi (1-6) , 94.2 (SE&4-6) , 5 4.7 N.C. (1-2), 57.5
incoln (1-6) 100 (SE&K &4-6) 58.2 (1-6), 99.9 (4-6), 47.6
ocke (1-6) 100 (SE,K-4) , 58.7 N.C. N.C.
ongview (4-6) , 99.9 (5-6) , 62.4 N.C. N.C.
aeon (1-6) , 0 (4) , 53.3 N.C. (1), 49.7
agnolia (1-6) 100 (K-3) , 53.6 N.C. (5.6) , 45.6
allory (1-6) , 90.9 (SE&K-2) , 54 . S N.C. N.C.



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFS' PLAN BOARD'S 
PLAN A

BOARD'S 
PLAN B

Maury (1-6) , 28.8 (4-6) , 49.4 Closed Closed
Merrill (1-6) , 95.6 Closed Closed Closed
Messick (1-12) , 35.8 (1-6) , 64.9 (1-2) 74.4 (1-2) 74.4

Newberry (1-6) , 0 (1-2) , 56.6 N.C. (3-4) , 39.4
Norris (1-6) , 99.1 (1-3) , 56.2 (5-6) , 34.2 (5-6) , 34.2
Oakhaven (1-6) , 15.8 (SE&K-2), 62.8 N.C. (3-6) , 32.0
Oakshire (1-8) , 0 (2-4) , 54.4 N.C. (3-6) , 50.5
Oakville (1-6) , 74.8 (SE&4-6) , 43.2 (3-4) , 22.9 (3-4) , 22.9
Orleans (1-6) , 100 (K-4) , 61.6 N.C. (1-3) , 50.2
Peabody (1-6) , 54.7 (SE&1-6) , 53.8 (1-6), 54.7 (1-6) , 54.7
Pine Hill (1-6) , 99.7 (SE&5-6) , 56.2 Closed Closed
Pope (1-6) , 85.0 (SE , 3-4) , 59.8 N.C. N.C.
ProsDect (1-6) , 95.9 (K&3-4), 57.1 N.C. (1-2) , 37.0
Raineshaven (1-6) , 23.5 (SE&1-2) , 57.8 (5-6), 55.8 (5-6) , 55.8
Richland (1-6) , 0.3 (5-6) , 51.5 N.C. (2-3) , 51.0
Ridgeway (1-6) , 2.3 (4-6) , 50.6 N.C. (4-6) , 57.0
Riverview (1-6) , 100 (3-6) , 64.0 N.C. N.C.
Rozelle (1-6) , 94 . 6 (SE&5-6) , 66.0 (4-6), 60.2 (4-6) , 60.2
Sea Isle (1-6) , 0.1 (2-3) , 51.2 N.C. (1-4) , 54.0
Shady Grove (1-6) , 2.8 (2-4) , 53.8 N.C. (1-6) , 53.4
Shannon (1-6) , 100 (K-3) , 63.6 (4-6) , 46.7 (1-3) , 50.5
Sharpe (1-6) , 1.8 (K-2) , 58.7 (1-2), 44.0 (1-2) , 44.0
Shef f ieId (1-6) , 1.3 (1-3) , 43.2 (5-6) , 24.5 (5-6) , 24.5
^Sherwood (1-6) , 3.0 (SE&K-2), 61.9 N.C. (3-6) , 45.3



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFS'PLAN BOARD'S 
PLAN A

BOARD
PLAN

'S
B

Snowden (1-9) , 4.8 Closed (5-9) , 41.9 (5-9) , 41.9
South Park (1-6) , 0 (SE&4-6), 50.9 N.C. (1-3) , 46.0
Springdale (1-6) , 93.8 (K-3), 50.5 (1-6), 74.5 (1-6), 74.5
Stafford (1-6) 100 (K-3) , 65.6 N.C. (4-6) , 49.4
Treadwell (1-6) , 1.0 (K-3) , 46.9 (1-3) , 32.0 (1-3), 32.0
/ollentine (1-6) , 83.8 (3-4) , 58.2 (1-4) , 51.2 (1-4) , 51.2
talker (1-6) , 98.2) (5-6) , 54.6 (3-4) , 55.7 (3-4) , 55.7
leaver (1-7) , 96.2 (K-l), 62.2 Closed Closed
'Jells Sta. (1-6) , 0 (SE&K-4) , 45.8 N.C. (5.6) , 46.8
Westhaven (1-6) , 22.0 (SE&1-3) , 60.7 (1-2) , 49.5 (1-2) , 49.5
Westside (1-6) , 0 (4-5) , 56.9 (4-6) , 30.9 (4-6) , 30.9

'•■'estwood (1-6) , 45.1 (SE&K-3) , 67.0 (1-6) , 45.1 (1-6) , 45.1
Whitehaven (1-8) , 9.0 (3-6) , 41.9 Closed Closed
Whites Chapel (1-8) , 91.9 N.C. (5-6) , 74.0
White Station (1-6) , 23.4 (SE-K-3) , 53.7 N.C. N. C.
Whitney (1-6) , 0 (6) , 53.3 (1) , 34.8 (1) , 34.8
Willow Oaks (1-6) , 0.1 (SE, 4-6), 50.7 N.C. (1-2) , 47.2
Winchester (1-8) , 2.4 (SE&K-2) , 53.7 (1-2), 38.9 (1-2) , 38.9
Wisconsin (1-6) , 100 (4-6) , 56.7 Closed Closed

JR. & SR. HIGH SCHOOLS

Ai rways (7-9) , 59.3 (7-9) , 55.6 N.C. (7-8) , 35.0
Sollvue (7-9) , 50.0 (7-9) , 56.5 N.C. (7-8) , 26.0



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFS' PLAN BOARD'S 
PLAN A

BOARD' 
PLAN

S
3

Zarver (7-12) , 99.9 (10-12) , 45.9 N.C.
(9 )
(10-12)

37.1
N.C.

Zentral (10-12) 12.2 (10-12) , 46.5 (10-12) , 36.5 (10-12) , 36.5
Zolonial (7-9) , 0.2 (7-9) , 45.8 N.C. (7-8), 39.0
lorry (7-9), 99.3 (7-9) , 59.4 (7-8) , 59.7 (7-8) , 59.7
Zvpress (7-9), 100 (7-9) , 51.7 (7-8) , 65.9 (7-8) , 65.9
Douglass (7-12) , 100 (7-9) , 

nn- 1 2 ),
59.04n.4 (10-12) , 76.2 (10-12) , 76.2

Bast (7-12) , 0.3 (10-12) , 43.9 (10-12) , 43.8 (10-12) , 43.8
Fairley (7-12) , 25.1 (7-9) , 62.9 (10-12) , 45.9 (10-12), 45.9
Fairview (7-9), 39.6 (7-9) , 48.0 N.C. N.C
Frayser (7-12) ,0.1 (7-9) ,

(10-12) .
43.2
60.4 (10-12 , 41.7 (10-12) , 41.7

Deeter (7-12) , 98.0 (7-9) , 47.7 (7-9) , 59.0 (7-9) , 59.0
Za. Hills (7-9), 7.1 (7-9) , 59.3 N.C. (9) 67.0
Zragg (1-9), 1.6 (7-9) , 46.8 (7-9) , 57.3 (7-9) , 57.3
•Jamil ton (7-12), 100 (7-9) , 

(10-12) .
55.6
49.4 N.C. (7-8) , (10-12). 71.4N.C.

■lillcres t (8-12), 0.4 (10-12) , 51.0 (9-12) , 20.0 (9-12) ,
I

20.0
•iumes (7-9), 95.6 (7-9) , 63.3 N.C. (7-8) ,

i
67.8

Kingsbury (7-12) , 0.1 (7-9) , 
nn-12),

47.6
3 8.2 N.C. (9) ,(10-12), 45.4N.C.

Lanier (7-9), 5.7 (7-9) , 58.2 (7-8) , 53.5 (7-8) , 53.5
Lester (7-12), 100 (7-9) , 

(10-12) .
47.6
49.4 (7-9) 53.3 (7-9) , 53.3

Lincoln (7-9), 100 (7-9) , 54.6 N.C. (7-8) , 72.0
Longview (7-9), 99.6 (7-9) , 56.6 N.C. (9) , 40.2
Manassas (7-12) , 99.7 (7-9) ,

(10-12) .
66.24 5.0 (7-9) , 58.7 (7-9) 58.7

•!e 1 rose (7-9) , 99.6 (7-9) , 59.1 (7-8) , 5 4.0 (7-8), 54 . 0(10-12) ,99.5 (10-32) 4 3.0 (10-12) , °6 . 8 (10-1 ) 96.3 .
Mess ick (1-12), 35.8 (10-12) , 46.9 (10-12) , 4 6.9 .(10-12) , 11.4 . J



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL
NAME PRESENT

PLAINTIFFS'PLAN BOARD’S 
PLAN A

B O A R D 'S 
PLAN B

Mitchel1 (8-12) . 99.9
(7-9)
(1 0 -1 2 )

45.2
46.0

(8-9) 77.0 
(1 0 -1 2 )____ 21. (8-9)

(1-0 ---
77.0

--
Norths ide (10-12) ,98.6 (1 0-1 2 ), 48.2 N.C. N.C.
Oakhaven (7-12) , 6.7 (1 0-1 2 ), 49.1 N.C.

(9)
(1 0 -1 2 ),

23.0
N.C.

Overton (1 0-1 2 ) , O'. 1 (1 0-1 2 ) , 51.9 N.C. N.C.
Porter (7-9), 99.9 (7-9) , 49.5 N.C. (7-8), 4 5 . 2

Richland (7-9), 2.3 (7-9) , 57.3 N.C. (9) , 30.0
Ridgewav (7-11), 1.3

(7-9)
(1 0 -1 2 )

54.7
49.6 N.C.

(9)
(1 0 -1 2 ) ,

73.7
N.C

Riverview (7-9), 99.2 (7-9) , 44.5 N.C. (7-8) , 6 6 . 0

Sheffield (7-12), 17.8 (7-9)(1 0 -1 2 )
60.9
45.1 N.C. (9)

(1 0 -1 2 )
71.0
N.C

Sherwood (7-9), 10.1 (7-9) , 47 . a (9) , 5 4 . 0 (9) , 5 4 . 0

Souths ide (10-12) ,99.6 (1 0-1 2 ) , 47.2 N.C. N.C.
Tech (10-12) ,37.7 N.C. N.C.
Treadwell (7-12), 0.1

(7-9)
(1 0 -1 2 ) 45.140.2 (7-12) t 2 0 . 2 (7-12), 2 0 . 2

Trezevant (7-12), 3.1
(7-9)
(1 0 -1 2 )

54 . 8 
52.4 (9)

M  O-I7)______ 69.4N.C.
(9)
(1 0 -1 2 )

69.4
N.C

Vance (7-9), 99.9 (7-9) , 6 0 . e N.C. (7-8) , 65.0
Washington (10-12) ,99.9 (1 0-1 2 ) , 48.2 N.C . N.C.
Westside (7-12), 0.1 (1 0-1 2 ) , 58.5 N.C. (9)(1 0 -1 2 ) ,

59.0
N.C.

Wes twood (7-12), 37.4
" (7 - 5'5
n o-i7 ) 45.  ̂41 .5 N.C. N.C.

Whitehaven (9-12), 1.0 07-9) no-i 7 ) 45.3 
4 4 g (7-12) t 13.2 (7-12) , 13.2

White Station (7-12), 4.5 (7-9)
(1 0 -1 2 )

55.7
52.2 N.C. (9)

(1 0 -1 2 )
55.4
N.C.

Wooddale (7-9), 0.1 (7-9) 55.8 N.C. (7-8) , 40.0
Wooddale (1 0-1 2 ) , 0 (1 0 -1 2 ) 47.6 N.C. N.C.
Snowden (7-9) , 52. - C ] o s e d C l o s e d

C h i c k a s a w (7-9) , 45.C Closed Closed
“ 7 S



COMPARISON OF PLAINTIFFS' PLAN, BOARDS PLANS A AND B
AND STATUS QUO WITH GRADE ORGANIZATION AND PER CENT BLACK

SCHOOL PLAINTIFFS' BOARD'S BOARD'S
nam e PRESENT PLAN __________ PLAN A__________ PLAN B

Graceland (7-9), 47.7 Closed Closed
-

• 1

j

■

-

_

-8^



APPENDIX C

PLAN A PROJECTIONS AND PAST ENROLLMENTS 
FOR MEMPHIS SCHOOLS WHICH WERE UNIRACIAL IN 1969-70

Kindergarten Special Educ. Elementary Jr.
School White Black White Black White Black Whi te

Alcy
1969-70 
1971-72 
Plan A

-------- --------

0 23 
No Change

0 766
1 728 

284 346 —

Berclair
1969-70 
1971-72 
Plan A

25 0 
25 0 
No Change

23 0 
No Change

553 0 
452 0 
No Change

—

Brookmeade
1969-70 
1971-72 
Plan A -------- --------

-------- --------

909 0 
842 0 
No Change —

Caldwell
1969-70 
1971-72 
Plan A

0 73 
No Change

0 12 
No Change

0 1662 
0 1357 

No Change
—



School
Kindergarten 
White Black

Special Educ 
White Black

Carnes
1969-70 
1971-72 
Plan A

0 25 
0 50 

No Change
0 26 
1 19 

No Change

Carpenter
1969-70 
1971-72 
Plan A

--  --
mm ~  ~

Carver
1969-70 
1971-72 
Plan A

--  -- --  --

Chicago Park
1969-70 
1971-72 
Plan A

0 25 
0 50 

No Change
--  --

Colonial Jr.
1969-70 
1971-72 
Plan A

--  -- --  --

Corning
1969-70 
1971-72 
Plan A

25 0 
25 0
No Change

12 0 
No Change

Elementary Jr. High
White Black White Black

Sr.
White

0 706 0 172 —

4 641 1 170 —

179 1056 No Change —

0 331 — — —

0 401 — — —

Close

0 989 0
---- -- — 3 856 0

No Change No

0 588
0 514 — — —

359 183

1594 0
— — 1350 7 —

No Change

386 0
351 0 — — —

High
Black

1190
1187

Change

No Change



School
Kindergarten 
White Black

Special Educ. 
White Black

Corry Road
1969-70 
1971-72 
Plan A

------------------  ------------------

—  —  ““  —  —  —

Cummings
1969-70 0 26 0 24
1971-72 0 51 0 27
Plan A No Change No Change

Douglass Elem.
1969-70 0 25 0 19
1971-72 0 50 0 19
Plan A No Change No Change

Douglass Hi
1969-70 — — 0 37
1971-72 — — — —

Plan A — — — —

Dunn
1969-70 
1971-72 
Plan A

0
0

No
24
25

Change
—

♦

Evans
1969-70 
1971-72 
Plan A

_ _ _ _ _ — 24
No

0
Change

Elementary 
White Black

Jr. High
White Black

Sr. High
White Black

0 1055
8 1129

560 829

0 1126 
0 967

No Change

0 954
0 776

503 505

— — 0 675 0 1081
— — 0 572 0 682
— — Close 356 1142

0 542 — — — —

0 460 — — — —

No Change

977 0
938 0
No Change



School
Kindergarten 
White Black

Special Educ. 
White Black

Florida
1969-70 --  -- 0 29
1971-72 0 47 0 18
Plan A No Change No Change

Ford Road
1969-70 0 26 0 28
1971-72 0 77 0 22
Plan A No Change No Change

Fox Meadows
1969-70 --  -- — —
1971-72 --  -- — —
Plan A — — —

Frayser Elem.
1969-70 --  -- — —
1971-72 25 0 17 0
Plan A No Change No Change

Geeter Elem.
1969-70 --  -- 0 7
1971-72 --  -- 1 27
Plan A NO Change

Ggg ter* Jr• "Sr•
1969-70 --- -- 0 14
1971-72 --  -- 0 13
Plan A --  -- No Change

Elementary 
White Black

Jr. High
White Black

Sr. High
White Black

0 1175
0 873

No Change

0 839
0 1094

No Change
0 167
1  3 2 0  

No Change

843 0
488 0
No Change

468 0
408 0No Change

0 408
21 778

454 447

— _ ___ 0 271 0 420
_ — 15 496 9 509

__— — 39 9 573 Close



Kindergarten Special Educ. Elementary Jr. High Sr. High
School White Black White Black Whitei Black White Black White Black

Georgia Avenue
1969-70 --  —- 0 92 0 1754 — — — —
1971-72 0 51 0 77 0 1576 — — — —
Plan A No Change No Change No Change ” “ “

Grandview
1969-70 -— -- 30 0 861 0 — — — —
1971-72 --  -- 18 0 869 2 — — — —
Plan A _ — — -- No Change 480 450 — “ “ — — —• “ —

Hamilton Elem.
1969-70 0 25 __  __ 0 1294 — — — —
1971-72 0 52 -- -- 3 1003 — — — —
Plan A No Change — — — No Change “ “ ” — — — — — —

Hamilton Jr.-Sr.
1969-70 --  -- -- -- — — 0 1439 0 1789
1971-72 --  -- --  -- — — 0 1227 0 1859
Plan A --  —- — — — ™ ” ” “ “ ” No Change No Change

Hanley
1969-70 0 26 0 58 0 1451 — — — —
1971-72 0 50 0 63 0 1111 — — — —
Plan A No Change No Change 299 945

Hollywood
1969-70 --  -- --  -- 0 874 — — --- —
1971-72 0 24 --  -- 3 821 — — — —
Plan A No Change --  -- No Change — — — —



School
Kindergarten 
White Black

Special Educ. 
White Black

Hyde Park
1969-70 0 25 0 40
1971-72 0 76 0 47
Plan A No Change No 1Change

Kansas
1969-70 0 25
1971-72 0 52 — —

Plan A No Change ___

Kingsbury Elem.
1969-70 — — 45 0
1971-72 — — 48 0
Plan A — “ “ No Change

Kingsbury Jr.-Sr.
1969-70 — — — —
1971-72 — — — —
Plan A “ “ “

Klondike
1969-70 0 25 0 129
1971-72 0 50 1 112
Plan A No Change No Change

Lakeview
1969-70 0 27 0 7
1971-72 — — — “ — “
Plan A — — —

Elementary 
White Black

Jr. High 
White Black

Sr. High 
White Black

0
1

No
1450
1301

Change
--- --- --- ---

0 949 — — -----— —  —  —

0 732 — — — —

No Change — — — —

845 0 — — — —

736 0 — — — ----- —

No Change — — -----— —  —  —

___ _ — 1477 0 1429 0
_____ _______ 1364 2 1354 2
— — NO Change No Change

0 673 — — — —

1 688 — — — ----- —

No Change — — — —

0 443 0 136 — —

11 455 1 129 — —

No Change No Change — —



School
Kindergarten Special Educ.
White Black White Black

Lauderdale
1969-70 0 25 
1971-72 0 49 
Plan A No Change

0 6 
0 11

No Change

Leath
1969-70 0 25 
1971-72 0 51 
Plan A No Change

0 84
0 49

No Change

Lester Elem.
1969-70 0 25 
1971-72 0 19 
Plan A No Change

0 13
0 11No Change

Lester Jr.-Sr.
1969-70 1971-72 
Plan A

Lincoln Elem.
1969-70 
1971-72 
Plan A

0 25
0 50

No Change
0 19
0 28

No Change

Locke
1969-70 
1971-72 
Plan A

0 25
0 43

No Change
0 4

No Change

Elementary Jr. High Sr. High
White Black White Black White Black

0 718
0 613

No Change

0 711
2 426

No Change

0 896 — — — —

0 763 — — — —

423 302 — — — —

— 0 578 0 484
— — 0 593 0 474
________ — 441 504 Close

0 765 — — — —

3 574 — — — —

No Change

0 1051
0 734

No Change



School
Kin cfergarten Special Educ.
White Black White Black

Magnolia
1969-70 0 25
1971-72 0 54
Plan A No Change

Manassas Jr.-Sr.
1969-70 
1971-72 
Plan A

Melrose Jr.-Sr.
1969-70 --  --  0 17
1971-72 --  --  --  --
Plan A --  --  --  --

Mitchell
1969-70 
1971-72 
Plan A

Norris
1969-70 
1971-72 
Plan A

0 26
0 37

No Change

1969-70 0 25
1971-72 0 25
Plan A No Change

Orleans

Elementary 
White Black

Jr. High 
White Black

Sr. High 
White Black

0
0

No
1035
812

Change
--- --- --- ---

— — 0 1208 0 1025
— — 1 1208 0 932
— — — 816 1158 1362 832

— — 0 1258 0 1137
— — 0 1217 7 1206
— ----- — 868 1009 196 1282

— — 0 723 0 836
— — 2 677 0 942
— — 199 666 No Change

0 620 — — — —

5 732 — — — —

456 237 — — — —

0 831 — — — —

0 742 — — — —

No Change — — — —



School
Kindergarten 
White Black

Special Educ. 
White Black

Overton
1969-70 — — . . . . —

1971-72 — — — —

Plan A — — — “ — “

Porter
1969-70 — — 0 29
1971-72 — — 0 27
Plan A —  —  — --- No Change

Shannon
1969-70 — — — —

1971-72 0 25 0 12
Plan A No Change No Change

Stafford
1969-70 0 25 •----------- —

1971-72 0 49 — —

Plan A No Change

Walker
1969-70 0 11
1971-72 — — 0 2
Plan A ” “ “ “ ” — No Change

Washington
1969-70 0 21
1971-72 — — 0 22
Plan A — — No Change

Elementary Jr. High Sr. High
White Black White Black White Black

1735 0
— — — — 1772 1

No Change

0 2270
— — 1 1231 — —

— — No Change — —

0 957 — — — —

9 882 — — — —

429 376 — — — —

0 551 — — — —

0 538 — — — —

No Change — — — —

0 681 0 113 — —

18 958 — — — —

317 398 — — — —

— — — — 0 1868
— — — — 0 1813
— — — — No Change



School
Kindergarten 
White Black

Special Educ. 
White Black

Weaver
1969-70 
1971-72 
Plan A

1 24
Close

Westside Jr.-Sr.
1969-70 
1971-72 
Plan A

Wisconsin
25 0
17 0Close Close

1969-70 
1971-72 
Plan A

0
0

30
4

Elementary 
White Black

0 152
10 141
Close

Jr. High 
White Black

0 20
0 16
Close

561 0
502 0No Change

Sr. High 
White Black

380 0
392 0No Change

0 1910 186Close



1969 EXHIBIT IN THIS COURT

'“ * « »■ .■ » * i»  «

ENROLLMENT DATA— MEMPHIS CITY SCHOOLS— ATTENDANCE REPORT ENDING lO-iW-t.J
23 26

Kindergarten Special Ed.
School W hite

2

Negro

21

W hite

2

Negro

24
Alcy — — — —
Berclair 25 — — —
Brookmeade — — — —
Caldwell — — — —
Carnes — 25 — 26
Carpenter — — — —
Carver — — — —
Chicago Park — 25 — —
Colonial Jr. — — — —
Corning 25 — — —
Corry Rd. — — — —
Cummings — 26 — 24
Douglass El — 25 — 19
Douglass (7-12) — — — 37
Dunn — 24 — —
Evans — — — —
Florida — — — 29
Ford Rd. (1-7) — 26 — 28
Fox Meadows — — — —

Frayser El. — — — —

Geeter EL — — — 7
Geeter (7-12) — — — 14
Georgia Ave. — — — 92

40 19 12

E lem en tary Ju n io r H i Sen io r  H i
W hite Negro W hite Negro W h ite Negro Total

8 32 3 16 3 9 —

— 766 — — — — 766
553 — — — — — 578
909 — — — — — 909
— 1662 — — — — 1662
— 706 — 172 — — 929
— 331 — — — — 331
— — — 989 — 1190 2179
— 588 — — — — 613
— — 1594 — — — 1594

386 — — — — — 411
— — — 10 5 5 — — 1055
— 1126 — — — — 1176
— 954 — — — — 998
— — — 675 — 1081 17 9 3
— 542 — — — — 566

977 — — — — — 977
— 1175 — — — — 1204
— 839 — 167 — — 1060

843 — — — — — 843
468 — — — — — 468

— 408 — — — — 415
— — — 271 — 420 705
— 1 7 5 4 — — — — 1846

\

I

i

I

i»
{

1969-70 Enrollm
ent Statistics



School

Grandview Ilts. 
Hamilton El. 
Hamilton (7-12) 
Hanley 
Hollywood 
Hyde Park 
Kansas
Kingsbury El. •
Kingsbury (7-12)
Klondike
Lake view
Lauderdale
Leatli
Lester El.
Lester (7-12)
Lincoln El.
Lincoln Jr.
Locke
Magnolia
Manassas
Melrose (7-12)
Mitchell (8-12)
Norris
Orleans
Overton
Porter
Shannon

14AM.

Kindergarten Special Ed.
White Negro White Negro

. — 30 —
— 25 — —
- — — —

— 26 — 58
— — —
25 — 40

. — 25 — —
— — 45 —
_ _ — —
, - 25 — 129

27 — 7
— 25 — 6
- 25 — 84

— 25 — 13

25 _ 19
_ — — 28

25 — —
— 25 — —

_____ 17
__ — — 26
__ — — —
— 25 — —
- — — —

— — — 29
. — —

Elementary
White Negro

861 —
_  1294

_  1451
_  874
_  1450
_  949

845 —

_  673
_  443
_  718
_  711
_  896

_  765

_  1051
_  1035

620
831

_  957

Junior TIi Senior Hi
White Negro White Negro

—  1439 — 1789

1477 1429 —

Total

891
1319
3228
1535

874
1515

974
890

2906
_____ ■ — — 827

136 — — 613
- — 749

_____ — 820
. _____ — 934

578 _____ 484 1062
- — 809

1779 — — 1807
____ _____ — 1076
____ _____ — 1060

1208 — 1025 2233
1258 — 1131 2406
723 _ 836 1585

_____ — 620
_____ — 856

- 1735 — 1735
2270 — — 2299

_ _ 957



Kindergarten Special Ed. Elementary
School White Negro White Negro White Negro

Stafford — 25 — — — 551
Walker (1-7) — — — 11 — 681
Washington — — — 21 — —
Weaver (1-7) — — — — — 152
West side (7-12) — — — — — —
Wisconsin — 25 — 30 — 191

50 529 75 794 5842 27144

NON-INTEGRATED TOTALS:

Kindergarten 50 529
Special Ed. 75 794
Elementary 5S42 27144
Junior Ili 3632 12853
Senior Hi 3544 9824

13143 51144 =  64287

Department of Pupil Services 
jh (12-12-69)

Junior I li  Senior Hi
White Negro White Negro Total

— — — — 576
— 113 — — 805
— — — 1868 1889
— 20 — — 172

561 — 380 — 941
— — — — 246

3632 12853 3544 9824 64287

1969-70 Enrollm
ent Statistics