Mapp v. Board of Education of the City of Chattanooga, Tennessee Petition for a Writ of Certiorari

    I l f  T H E

( t o r t  ni tf?p United States
October Term, 1975 

No..............

J am es J on ath an  M app , et al.,

vs.
Petitioners,

T he  B oard of E ducation of th e  C ity  
of Chattanooga, T ennessee , et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

J ack  Greenberg 
J ames M. N abrit, III 
D rew  S. D ays, III

10 Columbus Circle 
New York, New York 10019

A von N. W illiam s , Jr.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

Attorneys for Petitioners



Opinions Below 

Jurisdiction .....

I N D E X

PAGE

1

2

Question Presented ............................................................  2

Constitutional Provision Involved .................................-  2

Statement of the Case .............................................. .........  3

History of the Litigation _.... ................................. ...  3

History of Desegregation in Chattanooga ...........  5

The Court of Appeals’ Decisions of October 20,
1975 and January 27, 1976 ---- ----- -----............. ......  11

B easons for G ran tin g  th e  W rit

The Decisions of the Courts Below, Approving- 
Full Implementation of a Desegregation Plan Two 
Years After It Was Developed Despite Changes 
In the Bacial Composition and Configuration of 
the School District That Bendered Obsolete Pro­
jections That Dismantling of the Dual System
Would Occur, Were Premised Upon An Erro­
neous Beading of This Court’s Swann Opinion 
Which Should Not Be Allowed to Stand ..........  14

Conclusion  ...................................................... -......... -.... — 19

A ppendix

Memorandum of the District Court dated June 20,
1974 ........................................... ...................... ....... . la

Order of District Court dated June 20, 1974 ...... . 6a



11

PAGE

Decision of Court of Appeals dated October 20,
1975 ................................................................................. 8a

Order of Court of Appeals dated January 27,
1976 ..............................................................................  28a

T able oe Cases

Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) ..................................................................  17

Board of Education of the City of Chattanooga v. 
Mapp, petition for cert, filed, 44 U.S.L.W. 3445 (U.S.
Jan. 29, 1976) (No. 75-1077) ......... .......... ................. . 5

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) .......     17

Swann v. Charlotte-MecJdenburg Board of Education,
402 U.S. 1 (1971) ................... ......................... ............. ..6,14



I n th e

f§>uprm£ (Horn*! o f tl|T H m tr d  i^tatTB
October Term, 1975 

No..............

J am es  J on athan  M app, et al.,

vs.
Petitioners,

T h e  B oard of E ducation  of th e  C ity  
of C hattanooga, T ennessee , et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgments of the United States Court of Appeals for 
the Sixth Circuit entered in the above-entitled cause on 
October 20, 1975 and January 27, 1976.

Opinions Below

The District Court memorandum and order of June 20,
1974 are unreported and are printed in the appendix hereto, 
App. la, 6a. The Court of Appeals opinion of October 20,
1975 is reported at 525 F.2d 169 (6th Cir. 1975) and is 
printed in the appendix hereto, App. 8a. The Court of 
Appeals opinion of January 27 denying rehearing and re­
hearing en banc is reported at 527 F.2d 1388 (6th Cir. 1976) 
and is printed in the appendix hereto. App. 28a.



2

Jurisdiction

Tlie judgment of the Court of Appeals was entered on 
October 20, 1975 (App. 8a). On January 27, 1976, the 
Court of Appeals denied application by petitioners herein 
for rehearing en banc (App. 28a). The jurisdiction of this 
Court is invoked under 28 U.S.C. Section 1254(1).

Question Presented

Were the lower courts correct in finding that a 1971 
zoning desegregation plan for high schools in Chattanooga, 
Tennessee was constitutionally sufficient and required no 
modification which, in July 1974, left 59% of the black high 
school student population in two traditionally black facil­
ities where integral portions of that plan for elementary 
and junior high designed to achieve desegregation at those 
levels had not been fully implemented at that time, majority- 
to-minority transfer provisions of the plan had not been 
implemented for elementary and junior high levels as pro­
posed, the plan for high schools itself had not been fully 
implemented, and where significant changes had occurred 
in population and pupil attendance patterns and in the 
configuration of the system as a result of annexation dur­
ing the over two-year span between the time the plan was 
developed and the date it received final district court 
approval.

Constitutional Provision Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.



3

Statement of the Case 

History of the Litigation

This action was commenced on April 6, 1960 on behalf 
of a class of black children and parents seeking an end to 
state-imposed racial segregation in Chattanooga, Tennessee 
public schools. Proceedings pertinent to this petition com­
menced in 1971.1

On May 19, 1971 the district court held that the Chatta­
nooga Board of Education (hereinafter Board) had failed 
to create a unitary system and directed it to develop a plan 
to be implemented by September, 1971. On July 26, 1971, 
the court approved, with certain minor revisions, the 
Board’s Amended Desegregation Plan for elementary and 
junior high schools; it withheld final approval, however, of 
the high school plan pending receipt of data on capacity 
of four academic curriculum high schools and directed the 
Board to implement the proposed high school plan as an 
interim measure in September, 1971. 329 F.Supp. 1374 
(E.D. Tenn. 1971). Shortly thereafter, the court granted 
the Board permission to delay implementation of those 
portions of elementary and junior high plans which could 
not be effectuated until additional transportation facilities 
were acquired.

On February 4,1972 the district court gave final approval 
to the Board’s plan to establish a system-wide vocational- 
technical high school, but withheld such approval with re­
spect to the zoning proposal for the other four high schools, 
directing officials to report by June 15, 1972 on whether 1

1 The history of petitioners’ efforts to achieve a unitary system 
in Chattanooga between 1960 and 1967 is recounted in: 295 F.2d 
617 (6th Cir. 1961); 203 F.Supp. 843 (E.D. Tenn. 1962), aff’d 
319 F.2d 571 (6th Cir. 1963) ; 373 F.2d 75 (6th Cir. 1967) ; and 
274 F.Supp. 455 (E.D. Tenn. 1967).



4

further desegregation was required at that level. It ordered 
that elementary and junior high school desegregation be 
implemented fully not later than fall, 1972. Appeals were 
taken with respect to district court judgments entered be­
tween July, 1971 and February, 1972 which were affirmed 
en banc on April 30, 1973. 477 F.2d 851 (6th Cir. 1973). 
Certiorari wms denied by this Court on November 12, 1973. 
414 U.S. 1022 (1973).

On July 20, 1973, the Board moved for further relief 
seeking an adjustment of the 1971 desegregation plan ap­
proved by the trial court on July 26, 1971, as amended by 
subsequent orders. The Board’s motion was denied by the 
district court on November 16, 1973, which ordered that 
complete implementation of the 1971 plan be accomplished 
no later than by the beginning of the January, 1974 semes­
ter. The court also gave its final approval at that time to 
the Board’s 1971 plan for high school desegregation. 366 
F.Supp. 1257 (E.D. Tenn. 1973).

On December 24, 1973, petitioners filed a motion to 
amend the November 16, 1973 opinion and for a new trial 
and/or further relief. The motion sought an order 
requiring the Board to develop a new desegregation plan 
rather than to implement fully the 1971 proposal. By 
memorandum and order of June 20, 1974, the district court 
denied petitioners’ December 24, 1973 motion.

The Board appealed from the order of November 16, 
1973 denying its motion to amend the desegregation plan, 
which it asserted became final upon the denying on June 
20, 1974 of petitioners’ motion to amend and for a new 
trial or further relief. Petitioners appealed directly from 
the June 20, 1974 denial of their motion by the district 
court.

On October 20, 1975, the Court of Appeals for the Sixth 
Circuit affirmed the trial court’s rulings. (App. 8a) Re­



5

hearing and rehearing en banc were denied by that court 
on January 27, 1976 (App. 28a). The Board filed a peti­
tion for a writ of certiorari from this Court on January 
29, 1976, which has not been acted upon as of this date. 
Board of Education of the City of Chattanooga v. Mapp, 
No. 75-1077, O.T. 1975 (44 U.S.L.W. 3445).

History of Desegregation in Chattanooga

In 1962, the trial court approved an eight-year plan of 
desegregation involving gradual conversion from dual geo­
graphic zones to unitary zones for elementary and junior 
high grades and continued use of freedom of choice on the 
high school level, extending that choice to black students 
for the first time in 1967. During the 1962-63 academic 
year eighteen (18) all-black schools were maintained—one 
senior high, three junior high and fourteen elementary 
schools.

Though implementation of this plan was accelerated in 
August, 1965 by the Court to ensure its completion by 
September, 1965, a number of all-black or virtually all­
black schools were still in operation. Twelve (12) elemen­
tary schools were between 96-100% black; four (4) junior 
highs were 99-100% black; and two (2) senior highs were 
99 and 100% black respectively. The all-black elementaries 
enrolled 82% of the system-wide black elementary popula­
tion; the all-black junior highs enrolled 73.5% of the sys­
tem-wide total; and the all-black highs enrolled 83.9% of 
the system-wide total of black students, at that grade level. 
At that time the racial ratio for the entire system was 
48.8% black and 51.2% white.

On May 19, 1971, the district court found that previous 
plans had not succeeded in accomplishing a unitary system 
and directed the Board to submit further plans for the 
final accomplishment of a unitary school system in Chatta­



6

nooga. The Board’s plan proposed to accomplish a ratio 
of not less than 30% nor more than 70% of any race in 
most elementary and junior high schools in the system 
through techniques of pairing, clustering, rezoning and 
majority-to-minority transfers. Seven schools were to be 
closed.

Insofar as high schools were concerned, the Board pro­
posed to retain the five facilities then in use. Four schools 
—two all-black (Howard and Riverside) and two majority 
white schools (Brainerd and Chattanooga)—would be re­
zoned and utilized solely for academic programs. Zones 
for these schools would be drawn to ensure that the newly- 
created junior high zones fed into them. Kirkman, which 
offered only technical and vocational training, would be 
left unzoned; vocational-technical programs at Howard 
and Riverside, the two black schools, would be transferred 
to Kirkman. As a result, changes in the racial composi­
tions at the high schools would be as follows:

1970-71 Proposed (1971 Plan)
% B % W % B % W

Brainerd 14 85 32 68
Chattanooga 10 90 44 56
Howard 100 0 70 30
Riverside 99 1 68 32
Kirkman 11 89 45 55

The Board’s projections for the high schools wrere de­
pendent in large part upon the extent to which proposals 
for elementary and junior high facilities were realized. 
Additionally, the plan contained a majority-to-minority 
transfer provision like that approved by this Court in 
Swann v. Charlotte-Mechlenburg Board of Education, 402 
TJ.S. 1, 26-27 (1971).

On July 26, 1971, the district court approved the Board’s 
proposals for desegregation of elementary and junior high



7

grades but granted only tentative approval to the high 
school plan. Though it permitted the high school plan to 
be implemented on an interim basis in September, 1971, 
the Court directed the Board to provide it with additional 
information on capacities of the facilities involved and on 
the extent to which non-resident tuition students, from sur­
rounding Hamilton County and elsewhere, were enrolled 
in Chattanooga high schools.

In September, 1971, most of the Board’s desegregation 
proposals for desegregation of the elementary and junior 
highs, including majority-to-minority transfers, were not 
implemented. New zones were established for the four 
academic high schools and one vocational-technical high 
was opened on a system-wide basis. A  number of voca­
tional-technical courses continued to be offered, however, 
at the two traditionally all-black high schools. Since the 
plan was not implemented in any meaningful sense in 
September, 1971, the Chattanooga, school system at that 
time had ten 99-100% black elementaries and four 99-100% 
black junior highs. Racial ratios at the high schools in 
September, 1971 as compared to those projected in the 
plan were as follows, excluding students still assigned to 
vocational-technical courses in the two black highs:

% B Projected % B Actual

Kirkman ......... 45 25
Brainerd ......... 32 33
Chattanooga ... 44 33
Howard .......... 70 96
Riverside ...... 68 97

No implementation of elementary provisions of the 
Board’s 1971 plan had occurred by the start of the 1972- 
73 academic year. As of October 9, 1972, the Chattanooga 
system had five (5) all-black elementaries and five (5)



8

others with black ratios between 92 and 99.7%; 69% 
of all black elementary students in the system were 
enrolled in these ten schools. There were two all-black 
junior high schools and two (2) others with 99.7% 
black enrollments; these four schools enrolled 63% of 
the entire black junior high population. At that time 
blacks constituted 56% of the total elementary school 
population and 58% of the total junior high school popu­
lation in Chattanooga. At the high school level, the black 
ratios at the five high schools, as compared to those in 
September, 1971 were as follows:

%  B—9/23/71 %  B—10/9/72

Kirkman ....... ._ 25 36
Brainerd ......... 33 45
Chattanooga ... 33 45
Howard ........ . 96 95
Riverside ....... 97 95

At that juncture, blacks comprised 59% of Chattanooga’s 
total high school population. Of this total, 59% were en­
rolled in Howard and Riverside.

On July 20, 1973, the Board moved the district court to 
permit it to modify its 1971 desegregation plan “because 
of changed circumstances since said Amended Plan was 
designed and judicially approved” and for an evidentiary 
hearing in order to support its claims to a need for modi­
fication. Generally, the avowed purpose of the Board’s 
proposed modifications was to achieve “ a viable racial 
mix” in as many schools in the system as possible. As 
defined by the Board, “ a viable racial mix” was having 
20 to 40 percent black students and 80 to 60 percent white 
students in a school within the system, even though the 
black-white ratio at that time was 59% to 41%. The dis­
trict court rejected the Board’s proposed modification by 
opinion of November 16, 1973 and order of December 18,



9

1973. It remarked as follows with respect to the Board’s 
proposal:

Contending that their experience indicates that schools 
having more than 35% black student enrollment tend 
to lose their white student enrollment rather rapidly, 
the substance of the defendants’ proposed plan is to 
be accomplished by increasing the number of all-black 
schools or substantially all-black schools. 366 F.Supp. 
1257, at 1259.

The Court stated that annexation, not modification of the 
plan, was the means by which resegregation could be fore­
stalled. In this regard, it observed that the following year 
“as a consequence of recent annexations, the Chattanooga 
Public Schools will have an all-time high student enroll­
ment as well as again having a majority of white students.” 
Id., at 1260. In rejecting the Board’s proposal, the court 
stated:

Furthermore, to maintain its white majority schools, 
as an inducement for white students not to voluntar­
ily withdraw, it would require year by year adjust­
ment of the plan, presumably ad infinitum. Under such 
a plan, it would appear that the possibility of achiev­
ing a unitary school system could never occur until 
all demographic change ceased, an unlikely event in 
an urban society where for years the affluence of the 
City of Chattanooga, like other cities, has been con­
stantly receding to the suburbs. Ibid.

The court did, however, grant final approval to the 1971 
proposals for desegregation of the high schools, find­
ing that the continued one-race character of Howard and 
Riverside was the result of conditions beyond the control 
and responsibility of the Board. It also approved the 
Board’s proposal to assign students from the newly-



10

annexed areas to over 80% white facilities.2 And, though 
no request for such a ruling was made by the parties, 
the court authorized the Board to effect zone changes “at 
any time” which were merely administrative, did not in­
crease majority race ratios in any school or involved any 
annexed areas. Full implementation of the Board’s deseg­
regation plan, approved initially in July 1971, was or­
dered by the court by no later than the commencement 
of the midyear 1973-1974 school semester.

On December 24, 1973, petitioners filed a motion “ to 
amend the opinion of November 16, 1973 and order filed 
December 18, 1973 and for a new trial and/or further 
relief.” This motion was itself amended on January 7, 
1974. In seeking a new trial and further relief, petitioners 
contended that the district court erred in ordering 
implementation of the 1971 plan by the second semester 
of the 1973-74 academic year. During the over two years 
between 1971 and 1973 when implementation of most of 
the plan’s provisions for elementary and junior high school 
desegregation was held in abeyance, significant changes 
had occurred in the racial composition and configuration 
of the system that, it was argued, dictated the developing 
of a totally new desegregation proposal. And the fact 
that areas of Hamilton County were annexed while full 
implementation of the 1971 plan was temporarily sus­
pended required, petitioners contended, that any new de­
segregation plan be drawn with the objective of utilizing 
these annexed areas to maximize desegregation.

2 Between 1971 and 1973, two heavily-white areas were taken 
into the city from Hamilton County, for many years the source 
of non-resident tuition students in Chattanooga public schools. 
For example, during the 1970-71 school year, a total of 620 such 
students from Hamilton County were enrolled in the five Chat­
tanooga high schools. One area encompassed an existing county 
school building, a 96% white elementary, and one did not. In 
total, these areas brought approximately 480 white and 31 black 
students into the Chattanooga public schools.



11

On June 20, the district court denied petitioners’ motion, 
as amended, for a new trial and further relief in the fol­
lowing language:

Turning next to the plaintiff’s motion and amended 
motion for a new trial or for further relief, the Court 
is of the opinion that the motions are without merit 
and should be denied. The provisions of the judgment 
of this Court entered upon August 5, 1971, pursuant 
to the opinion of the Court set forth at 329 F.Supp, 
1374 and affirmed upon appeal at 477 F.2d 851, to­
gether with the provisions of the judgment entered 
upon December 18, 1973, pursuant to the opinion of 
this Court set forth at 366 F.Supp. 1257 are believed 
to be sufficient to provide for any necessary or ap­
propriate further supervision by this Court in this 
case. (App. 4a).

The Court of Appeals’ Decisions of 
October 20, 1975 and January 27, 1976

On October 20, 1975, the Court of Appeals for the Sixth 
Circuit affirmed by a vote of 2-1 the trial court’s orders 
of December 18, 1973 (denying the Board’s motion to mod­
ify the 1971 plan) and of June 20, 1974 (denying peti­
tioners’ motion for a new trial or further relief). To the 
extent that the Board or petitioners were asserting that 
the trial court erred in rejecting their suggestions that the 
1971 desegregation plan be revised totally, the majority 
ruled that such matters had already been resolved by its 
en banc decision in April, 1973 which gave full approval 
to that plan except insofar as the high schools were con­
cerned. It concluded, therefore, that the sole remaining 
issue was whether the trial judge erred in giving final 
approval to the desegregation plan for high schools, 
only tentatively approved since July, 1971. On that is­



12

sue, the majority held that the trial court’s determina­
tion that the continued one-race character of Howard 
and Riverside Highs “was due to a substantial departure 
of white students from the public schools in Chattanooga,” 
“beyond control and responsibility of the School Board” 
was not clearly erroneous (App. 12a). Its conclusion in 
this regard was articulated as follows:

Having implemented the plan for desegregating the 
high schools by establishing zones for attendance which 
were designed to achieve a high degree of racial bal­
ance throughout the system, and having provided fur­
ther for continuance of a majority-to-minority transfer 
policy the district judge conceived that he had obeyed 
the mandate of Brown v. Board [citation omitted] and 
Swann v. Charlotte-Mecklenburg Board of Education 
[citation omitted]. So do we. (App. 14a)

In dissent, Judge Edwards rejected the conclusions reached 
by the majority with respect to the constitutionality of the 
high school plan in the following terms:

With all respect for the sincerity of my colleagues, I 
cannot join the majority opinion, or approve its result. 
I f  the majority opinion prevails in this court and in 
the Supreme Court, it will establish as law the proposi­
tion that approximately 60% of the black children in 
the high schools of the Chattanooga public school sys­
tem may be continued forever in complete racial segre­
gation in all black schools which were built as such 
under state law which required a racially dual system 
and which have been continuously segregated as such 
down to this very moment. I cannot square this propo­
sition with the great command of the Fourteenth 
Amendment to provide all American citizens “ the 
equal protection of the laws.” (App. 15a).



13

Judge Edwards observed that the Board’s strongest argu­
ment for the constitutionality of the high school plan was 
that 25% white students had been zoned into Howard and 
Biverside but that white students avoided going by resort­
ing to “white flight” . To this assertion he responded as 
follows:

As to this measure we have no findings of fact con­
cerning [the Board’s] contention. But if we assumed 
their truth, we clearly would not have exhausted the 
possibilities for successful desegregation nor satisfied 
the constitutional command. Many possibilities for de­
segregation remain, including pairing of white and 
black schools and high school construction which would 
make desegregated zones more feasible. In any in­
stance, the defendant school board should be required 
to propose a new and realistic plan to meet its consti­
tutional duty. (App. 27a)

On January 27, 1976, the Court of Appeals denied peti­
tioners’ request that the case be reheard or reheard en 
banc, Judges Edwards and McCree dissenting. Judge Ed­
wards wrote that “ there can be no doubt that the two black 
high schools are racially separate public schools established 
and maintained by state action and that as to these, there 
has been no desegregation at all.”  (App. 29a)



14

REASONS FOR GRANTING THE WRIT

The Decisions of the Courts Below, Approving Full 
Implementation of a Desegregation Plan Two Years 
After It Was Developed Despite Changes In the Racial 
Composition and Configuration of the School District 
That Rendered Obsolete Projections That Dismantling 
of the Dual System Would Occur, Were Premised Upon 
An Erroneous Reading of This Court’s Swann Opinion 
Which Should Not Be Allowed to Stand.

Demographic changes occurring in formerly dual sys­
tems between 1954 and 1971 do not lessen the constitu­
tional duty of school boards to act affirmatively to eradi­
cate the vestiges of state-imposed segregation. Swann 
v. Charlotte Mecklenburg Board of Education, 402 U.S. 1 
(1971) stated in this regard:

The problems encountered by the district courts and 
courts of appeals make plain that we should now try 
to amplify guidelines, however incomplete and imper­
fect, for the assistance of school authorities and courts. 
The failure of local authorities to meet their consti­
tutional obligations aggravated the massive problem 
of converting from the state-enforced discrimination 
of racially separate school systems. This process has 
been rendered more difficult by changes since 1954 in 
the structure and patterns of communities, the growth 
of student population, movement of families, and 
other changes, some of which had marked impact on 
school planning, sometimes neutralizing or negating 
remedial action before it was fully implemented . . . 
The objective today remains to eliminate from the 
public schools all vestiges of state-imposed segrega­
tion. Id., at 14-15.



15

Swann teaches, therefore, that the constitutionality of any 
desegregation plan must be evaluated in light of condi­
tions presently existing in a formerly dual system, not of 
conditions when Broivn was decided.

The lower courts acted contrary to this principle in 
several respects. First, the district court approved imple­
mentation in 1974 of a desegregation plan that was devel­
oped by the Chattanooga Board in July, 1971 but not 
effectuated in major respects even as late as the end of 
the 1972-73 academic year. At the elementary level, the 
Board’s 1971 plan envisioned closing five facilities, pair­
ing sixteen schools, clustering six others and retaining 
three schools serving grades 1—6. Such an approach, the 
Board contended, would produce ratios of not less than 
30% nor more than 70% of any race in 23 of its 28 ele- 
mentaries. At junior high level, two schools were to be 
closed and new zones for the remaining ten would be 
drawn so that newly restructured elementary school zones 
would “ feed” naturally into them. The Board’s proposal 
for desegregation of the high schools involved establishing 
four centers—two all-black and two majority white—as 
zoned academic centers. Zones for these schools would 
flow naturally from those newly-established for the junior 
highs. One other high school would serve as an unzoned 
vocational-technical center, an arrangement that would re­
sult in its absorbing numerous vocational-technical courses 
then being offered in the two black schools. A majority- 
to-minority transfer provision meeting standards estab­
lished by this Court in Sivann, supra, was also included 
in the Board’s proposal.

By the end of the 1972-73 academic year, however, little 
of the 1971 desegregation plan had advanced beyond the 
drawingboard. Only four elementaries had been paired, 
none clustered and one all-black school scheduled for clos­



16

ing had been kept open. The two junior highs scheduled 
for closing had been retained. No majority-to-minority 
transfer provision had been implemented for elementary 
or junior high students. At high school level, certain 
vocational-technical courses were still offered at the two 
black schools which, as in 1971, were virtually all-black. 
And, though the new zones for the four academic high 
schools had been established, technically speaking, the re­
semblance they bore to those described in the 1971 plan 
was artificial since the new elementary and junior high 
zones designed to feed into the high school zones had 
never been established. The system was not constitution­
ally better at the end of the 1972-73 academic year than 
in 1971 when the trial court found that the Board had 
failed to dismantle its dual system. No comprehensive de­
segregation plan had yet been implemented.

When petitioners suggested in December, 1973 that a 
new plan was necessary, the trial court should have recog­
nized the fact that it was dealing then with a system that 
had never taken any meaningful steps to desegregate. In­
stead, it treated the situation as one in which a terminal 
desegregation plan which promised to “work realistically” 
and “work realistically now” had been implemented fully 
in 1971 but had failed for reasons beyond the control and 
responsibility of the Board. Therefore, the court reasoned, 
any attempt on its part to determine whether the 1971 
plan offered any reasonable likelihood of achieving the 
“greatest possible degree of actual desegregation” would 
require year-by-year adjustments to correct for demo­
graphic shifts. That the Board’s 1971 projections were 
based upon data for the system which was obsolete in 
December, 1973, and the largely-white areas had been an­
nexed by Chattanooga between July, 1971 and December, 
1973 (which was not foreseen in 1971) were insufficient



17

reasons, according to the court, to justify a re-evaluation. 
In this, the trial court was clearly in error.

Secondly, the court of appeals erred in refusing to con­
sider whether the 1971 plan for elementary and junior highs 
satisfied constitutional requirements. It stated as follows:

Both appeals in effect seek to relitigate all of those 
same issues which we decided in an en banc decision 
in this Court, reported in Mapp v. Board of Education, 
477 F.2d 851 (6th Cir. 1973), cert, denied, 414 U.S. 
1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973). We there 
affirmed a final plan of desegregation in all respects 
except as to the high schools in Chattanooga. (App. 
9a)

As with the trial court, the court of appeals’ position can 
be comprehended only by accepting an incorrect premise, 
i.e., that the 1971 plan for desegregating the elementary 
and junior high schools had been fully implemented when 
it was evaluated by the Sixth Circuit in April, 1973. In 
fact, the plan had not been fully implemented in July, 
1973, contrary to the requirements of both Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968) 
and Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) that vestiges of dual systems be eradicated 
“ at once” . The court of appeals review in early 1973, there­
fore, could have addressed only the potential ability of the 
1971 plan to achieve meaningful desegregation at the ele­
mentary and junior high levels. In reaching the conclusion 
that the plan appeared to meet constitutional standards, 
the court of appeals relied upon fall, 1971 attendance fig­
ures and had nothing before it that reflected changes in 
the racial composition and configuration of the system by 
April, 1973. Thus, the court of appeals was properly 
charged with the duty to determine whether the trial court’s



18

decision to order full implementation of the 1971 plan, 
was constitutionally correct, in the teeth of strong evi­
dence that it would be able to effect no meaningful deseg­
regation in 1974. Had it done so, the court of appeals 
would have been compelled to find error on the part of 
the trial court in this regard.

Finally, the court of appeals erred in two respects in 
considering the constitutionality of the Board’s 1971 plan 
for high school desegregation. It operated on the incorrect 
assumption that the 1971 provisions had been fully imple­
mented in September, 1971. In fact, vocational-technical 
courses were still being offered in the two black high schools 
in June, 1974 when the district court denied petitioners’ 
motion for a new trial or further relief with respect to a 
new desegregation plan. And it evaluated the high school 
provisions without giving any consideration whatsoever to 
the question of how the Board’s failure to implement sig­
nificant portions of its 1971 plan for elementary and junior 
high schools affected the validity of projections in the plan 
with respect to the level of desegregation that was to be 
achieved. The zones and projections for high schools were 
dependent upon zones for junior highs being properly 
established, as they, in turn, were dependent upon elemen­
tary zones being drawn according to the plan’s specifica­
tions. Projections of enrollment for the high schools were 
dependent as well upon the closing of two junior highs; 
junior high projections were dependent upon the closing 
of all five elementary schools under the plan. And all pro­
jections were linked to the implementation of a majority- 
to-minority transfer program for students at all levels. 
Common sense would seem to dictate that when many of 
the provisions of the plan at the elementary and junior 
high levels were not implemented as late as 1972-73, Board 
projections of meaningful high school desegregation lost



19

all meaning and accuracy. Yet the court of appeals per­
sisted in viewing the high school provisions in a vacuum, 
as though they could realistically stand irrespective of what 
had occurred at elementary and junior high levels.

In sum, the lower courts have construed this Court’s 
decision in Swann, supra, in a fashion that provides an open 
invitation for school boards to immunize themselves from 
effecting any meaningful desegregation by simply develop­
ing a plan that appears acceptable on paper while pursuing 
every tactical advantage to postpone the day when its im­
plementation is actually required. If left uncorrected by 
this Court, such an interpretation of Swann will very likely 
produce significant erosion of other constitutional stan­
dards that have accelerated the desegregation process since 
1971.

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that this Court should issue a writ of certiorari to the 
United States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

J ack  G reenberg 
J ames M. N abrit, III 
D rew  S. D ays, III

10 Columbus Circle 
New York, New York 10019

A von  N. W il l ia m s , Jr.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

Attorneys for Petitioners



A P P E N D I X



I n the

UNITED STATES DISTRICT COURT 

F ob th e  E astebn  D istrict of T ennessee 

S outhern  D ivision  

Civil Action No. 3564

Memorandum of the District Court
dated June 20, 1974

J am es J o n ath an  M app , et al 

— vs.—

T h e  B oard of E ducation  of th e  C ity  of 
Chattanooga, T ennessee , et al

M em orandum  on P ending  M otions

This lawsuit, involving the desegregation of the public 
schools of Chattanooga, Tennessee, has been in various 
stages of litigation since 1960. In the course of that litiga­
tion many extensive hearings have been held and many 
opinions, orders, judgments, ajtpeals and affirmations have 
entered. The history, nature and extent of the previous 
litigation herein can be obtained by reference to the pre­
vious published opinions in the case. See Mapp v. Board 
of Education of the City of Chattanooga, Tennessee, aff’d, 
295 F.2d 617 (6th Cir. 1961); 203 F.Supp. 843 (1962), 
aff’d, 319 F.2d 571 (6th Cir. 1963); aff’d, 373 F.2d 75 (6th 
Cir. 1967); 274 F.Supp. 455 (1967); 329 F.Supp. 1374 
(1971); 341 F.Supp. 193 (1972), aff’d en lane, 477 F.2d

la



2a

851 (6th Cir. 1973), cert, denied,------ U.S. --------, 94 S.Ct.
445, 38 L.Ed.2d 313.

In 1973, during the pendency of the last appeal herein­
above referred to, the defendant school board filed a peti­
tion seeking modification of the final plan of school de­
segregation approved by the Court in 1971. Following 
further extensive hearings upon that petition, this Court 
entered its opinion upon November 16, 1973, disposing of 
all pending issues in the case and directing that a final 
judgment enter. See 366 F.Supp. 1261. A final judgment 
was accordingly entered upon December 18, 1973.

Since the entry of the above referred to final judgment, 
the following motions have been filed and are now pending 
in the case: (1) the plaintiff’s motion for allowance of 
counsel and witness fees (Court File No. 4, Tab No. 161); 
(2) plaintiff’s motion to amend judgment or for further 
relief (Court File No. 4, Tab No. 166); (3) plaintiff’s 
amended motion to amend judgment and for further relief 
(Court File No. 4, Tab No. 167); (4) defendant’s motion 
to strike (Court File No. 4, Tab No. 168); (5) motion of 
third parties to intervene (Court File No. 5, Tab No. 1 ); 
(6) response and motion to strike motion to intervene 
(Court File No. 5, Tab No. 2 ); and (7) third parties’ 
motion to strike (Court File No. 5, Tab No. 3).

Taking up the pending motions in the sequence filed and 
turning specifically to the plaintiff’s motion to be allowed 
attorney fees and witness expense, it should be noted that 
in the Emergency School Act of 1972 the Congress enacted 
the following statute, codified at 20 U.S.C. § 1617:

Upon the entry of a final order by a court of the 
United States against a local educational agency, a 
State (or any agency thereof), or the United States 
(or any agency thereof), for failure to comply with

Memorandum of the District Court dated June 20, 1974



3a

any provision of this chapter or for discrimination on 
the basis of race, color, or national origin in violation 
of title V I of the Civil Rights Act of 1964, or the four­
teenth amendment to the Constitution of the United 
States as they pertain to elementary and secondary 
education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about 
compliance, may allow the prevailing party, other than 
the United States, a reasonable attorney’s fee as part 
of the costs.

This statute was recently construed by the United States 
Supreme Court in the case of Northcross v. Board of Edu­
cation of Memphis,------ U .S .------- , 37 L.Ed.2d 48, 92 S.Ct.
------ . There the Court held that, in a school desegregation
case, the statute required that the successful plaintiff 
“ should ordinarily recover an attorney’s fee unless special 
circumstances would render such an award unjust.” The 
plaintiff herein having successfully resisted the defendant’s 
efforts to substantially alter the provisions of the final 
school desegregation plan previously approved by this 
Court and affirmed upon appeal, 477 F.2d 851, the plaintiff 
would be entitled to recover of the defendant a reasonable 
attorney’s fee for legal services rendered in behalf of the 
plaintiff in all proceedings occurring in this court subse­
quent to the enactment of 20 U.S.C. §1617; Johnson v. 
Combs, 471 F.2d 84 (5th Cir. 1972); Thompson v. School 
Board of City of Newport News, 472 F.2d 177 (4th Cir. 
1972), and subsequent to the filing of the defendant’s mo­
tion for further relief upon July 20, 1973. The plaintiff 
will be allowed 20 days to file a sworn itemized statement 
regarding his claim for reimbursement of attorney fees 
for the period of time hereinabove stated. Likewise, the

Memorandum of the District Court dated June 20, 1974



4a

plaintiff should include within such sworn statement his 
claim for witness fees or other costs allowed by the law. 
Upon the filing of such a sworn statement by the plaintiff, 
the defendant will be allowed ten days to file objections 
and/or counteraffidavits thereto, whereupon the Court will 
make its decision upon these matters.

Turning next to the plaintiff’s motion and amended 
motion for a new trial or for further relief, the Court is 
of the opinion that the motions are without merit and should 
be denied. The provisions of the judgment of this Court 
entered upon August 5, 1971, pursuant to the opinion of 
the Court set forth at 329 F.Supp. 1374 and affirmed upon 
appeal at 477 F.2d 851, together with the provisions of the 
judgment entered upon December 18, 1973, pursuant to the 
opinion of this Court set forth at 366 F.Supp. 1257 are 
believed to be sufficient to provide for any necessary or 
appropriate further supervision by this Court in this case.

Finally, there remains to consider the motion by a citizen 
group designated as the “ Concerned Citizens for Neighbor­
hood Schools, Inc.” to be allowed to intervene in the law­
suit. The motion to intervene was filed upon January 25, 
1974, more than 30 days after the entry of the final judg­
ment of the Court upon December 18, 1973. The relief 
sought by the intervenors is a full readjudication of the 
plan for school desegregation. Having considered the mo­
tion to intervene, the Court is of the opinion that it should 
be disallowed. As noted, the motion to intervene comes 
after almost 14 years of highly publicized and very exten­
sive litigation. Under the circumstances of this case, the 
motion to intervene is not timely. See Robinson v. Shelby 
County Board of Education, 330 F.Supp. 837 (W.D. Tenn. 
1971), aff’d, 467 F.2d 1187 (6th Cir. 1972); United States 
v. Carroll County Board of Education, 427 F.2d 141 (5th

Memorandum of the District Court dated June 20, 1974



5a

Cir. 1970). See also M oore’s F ederal P ractice 24-13 [1] ; 
W righ t  & M iller , F ederal P ractice and P rocedure § 1916; 
“The Requirements of Timeliness Under Rule 24 of the 
Federal Rules of Civil Procedure” 37 V a . L. R ev . 563.

Furthermore, there is nothing in the record or history of 
this litigation that would indicate any inadequate repre­
sentation of any relevant viewpoint regarding any issue 
that has heretofore been before the Court. The Court has 
no present recollection of any issue resolved in this litiga­
tion by agreement or compromise. Rather, every issue 
throughout the long history of the litigation has been 
reached only after vigorous and extensive litigation fol­
lowed by judicial decision and appellate review. The mo­
tion to intervene will accordingly be denied.

An order will enter on all pending motions in accordance 
with this Memorandum.

Memorandum of the District Court dated June 20, 1974

/ s /  F ran k  W . W ilson

United States District Judge



6a

I n  t h e

UNITED STATES DISTRICT COURT 

F oe th e  E astern  D istrict of T ennessee , 

S outhern  D ivision  

Civil Action No. 3564

Order of District Court dated June 20, 1974

J am es  J on ath an  M app , et al.,

—-vs.—

T h e  B oard of E ducation  op t h e  C it y  of 
C hattanooga, T ennessee , et al.

O r d e r

This case is before the Court upon the following mo­
tions: (1) the plaintiff’s motion for allowance of counsel 
and witness fees (Court File No. 4, Tab No. 161); (2) 
plaintiff’s motion to amend judgment or for further relief 
(Court File No. 4, Tab No. 166); (3) plaintiff’s amended 
motion to amend judgment and for further relief (Court 
File No. 4, Tab No. 167) : (4) defendant’s motion to strike 
(Court File No. 4, Tab No. 168); (5) motion of third par­
ties to intervene (Court File No. 5, Tab No. 1 ); (6) re­
sponse and motion to strike motion to intervene (Court 
File No. 5, Tab No. 2) ; and (7) third parties’ motion to 
strike (Court File No. 5, Tab No. 3). The following or­
ders are entered upon the foregoing motions in accord­
ance with the memorandum opinion on pending motions 
filed herein.



7a

Order of District Court dated June 20, 1974 

It is a ccord in g ly  O rdered ;

(1) That the plaintiffs’ motion for the award of counsel 
and witness fees he sustained and that the plaintiff be 
allowed 20 days within which to file an affidavit itemizing 
the said fees and costs pursuant to the opinion of the 
Court entered herein. The defendant will then be allowed 
10 days to file objections or counter affidavits;

(2) That the plaintiff’s motion and amended motion for 
further relief or new trial are denied; and

(3) That the motion of third parties to intervene herein 
is denied.

A pproved for E n tr y .

/ s /  F rank  W . W ilson 
United States District Judge

ATTEST:

A  true copy.

Certified this J tjn 20 1974

K arl D. S au lpa w , Jr., Clerk

B y  / s /  B ertha  M organ

Deputy



8a

Decision of Court of Appeals 
dated October 20, 1975

UNITED STATES COURT OF APPEALS

F or t h e  S ix th  C ircu it

(Argued April 18, 1975 Decided October 20, 1975.)

Nos. 74-2100, 74-2101

J ames J o n ath an  M app  et al.,

Plaintiffs-Appellants, 
v.

T h e  B oard of E ducation  of th e  Cit y  
of C hattanooga, T ennessee, et al.,

Defendanis-Appellees.

J ames J o n ath an  M app et al.,

Plaintiffs-Appellees,
v.

T h e  B oard of E ducation  of th e  C ity  
of C hattanooga, T ennessee,

Defendant-Appellant.

B e f o r e :

W e ic k , E dwards and E ngel,
Circuit Judges.



9a

E ngel, Circuit Judge.

This desegregation case is once more before the court,1 
this time on cross-appeals from an order of the district 
court entered June 24, 1974. [sic] That order denied mo­
tions filed by both parties to modify or amend an earlier 
order of the court entered December 18, 1973, directed 
[sic] implementation of the final school desegregation 
plan previously approved by the court with certain mod­
ifications. The December 18, 1973 order provided as well 
that “ [To] the extent the Court has previously given only 
tentative approval to the High School Zoning Plan, the 
same is now approved finally.”

Both appeals in effect seek to relitigate all of those 
same issues which we decided in an en banc decision in 
this court, reported in Mapp v. Board of Education of 
Chattanooga, 477 F.2d 851 (6th Cir. 1973), cert, denied, 
414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973). We 
there affirmed a final plan of desegregation in all respects 
except as to the high schools in Chattanooga.

While the district judge had at that time approved the 
plan as to Kirkman Technical High School, and our affir­
mance made the same final, District Judge Frank W. 
Wilson had given only tentative approval to the plan for 
desegregation for other high schools in the City of Chat­
tanooga, see Mapp v. Board of Education of Chattanooga, 
341 F.Supp. 193 (E.D.Tenn.1972), being uncertain particu­
larly whether three rather than four general purpose high 
schools would be feasible or desirable in Chattanooga.

1 For previous decisions of this court in this litigation see Mapp 
v. Board of Education of Chattanooga, 295 F.2d 617 (6th Cir. 
1961), 319 F.2d 571 (6th Cir. 1963), 373 F.2d 75 (6th Cir. 1967), 
477 F.2d 851 (6th Cir. 1973), cert, denied 414 U.S. 1022, 94 S.Ct. 
445, 38 L.Ed.2d 313.

Decision of Court of Appeals dated October 20, 1975



10a

With respect to Judge Wilson’s refusal to modify the 
previous final plan of desegregation, we find that he did 
not abuse his discretion in so doing, particularly since this 
court has given its approval of that plan.

Accordingly, we see as the sole issue remaining on this 
appeal the question of whether the district judge erred 
in ordering final approval of the tentative plan of desegre­
gation for the Chattanooga high schools.

At the time the tentative plan was proposed, it was 
anticipated that the zoning for the four high schools would 
produce a racial balance approximately as follows:

Decision of Court of Appeals dated October 20, 1975

Black White
Students Students

Brainerd High School 32% 68%
Chattanooga High School 44% 56%
Howard High School 75% 25%
Riverside High School 75% 25%

When, however, the plan was placed into effect in the
fall of 1971 rather than having the attendance anticipated,
the four high schools experienced the following racial
balance:

Black White
Students Students

Brainerd High School 39% 61%
Chattanooga High School 43% 57%
Howard High Schol 99% 1%
Riverside High School 99% 1%

While an actual head count had showed that as late as 
July 1971 there were 393 (29%) white high school students 
in the Howard High School zone and 311 (29%) white stu­



11a

dents in the Riverside zone, only ten reported that Sep­
tember to Howard and three to Riverside.

It is the contention of the plaintiffs that a school board’s 
duty in a previously dual and segregated school system 
cannot be said to have been performed where, after imple­
mentation of a plan of desegregation, such an imbalance 
in the racial mix of the students yet remains. After taking 
extensive testimony on this issue and on the other issues 
raised by the parties’ motions to amend the earlier judg­
ment, Judge Wilson, in his Memorandum Opinion of No­
vember 16, 1973, made the following findings of fact:

To the extent that the Court has previously given 
only tentative approval to the high school zoning plan, 
final approval will now be given that plan. Two high 
schools, Howard High School and Riverside High 
School, have not acquired an enrollment of white stu­
dents as projected by the Board when the plan was 
proposed in 1971, but rather have remained substan­
tially all black. It was a concern for the accuracy of 
these projections that caused the Court to initially give 
only tentative approval to the high school zoning plan. 
However, subsequent evidence has now demonstrated 
that changing demographic conditions within the City 
and other de facto conditions beyond the control and 
responsibility of the School Board, including the volun­
tary withdrawal of white students from the system, 
have become the causative factors for the present racial 
composition of the student body in those schools and 
not the original action of the Board in creating segre­
gated schools at these locations. It should be recalled 
in this connection that the plan previously approved 
included provision for students to elect to transfer from

Decision of Court of Appeals dated October 20, 1975



12a

a school in which they were in a majority to a school 
in which they would be in a minority.

While the cause of the departure of white students was 
disputed, there can be little doubt upon the record that 
the difference between the anticipated mix and the actual 
attendance of the high schools when the plan was put into 
effect was due to a substantial departure of white stu­
dents from the public schools in Chattanooga, a circum­
stance which the district judge found to have occurred 
beyond the control and responsibility of the School Board.

No one who firmly believes in the social and educational 
value of racial balance in a desegregated school system 
can help being seriously concerned when such a plan for 
achieving racial balance does not achieve its objectives on 
implementation. That such a concern was shared by the 
district judge is manifest throughout the entire record 
upon appeal. Nevertheless, the district judge concluded 
that the demographic changes in the city itself were the 
cause of the remaining imbalance, a finding which finds 
support in the record and which we hold is not clearly 
erroneous.

We are satisfied that, in giving final approval to the 
high school desegregation plan, Judge Wilson was by no 
means yielding to irrational concerns over white flight 
which merely masked inherent Board resistance to inte­
gration. To the contrary, he carried out the plan in spite 
of the apprehended result, and beyond that resisted the 
defendant Board’s further efforts to modify the earlier 
approved plan for the remainder of the system with this 
language in his November 27, 1973 [sic] opinion:

“ The Court is not unsympathetic to the concern ex­
pressed by the Board for minimizing the voluntary

Decision of Court of Appeals dated October 20, 1975



departure of white students from the system. It must 
be apparent, however, that this objective cannot serve 
as a limiting factor on the constitutional requirement 
of equal protection of the laws, nor as a justification 
for retaining de jure segregation. Concern over ‘white 
flight’, as the phenomenon was often referred to in 
the record, cannot become the higher value at the ex­
pense of rendering equal protection of the laws the 
lower value. As stated by the United States Supreme 
Court in the case of Monroe v. Board of Commission­
ers, 391 U.S. 450 [88 S.Ct. 1700, 20 L.Ed.2d 733]____:

‘We are frankly told in the Brief that without the 
transfer option it is apprehended that wdiite stu­
dents will flee the school system altogether. “But it 
should go without saying that the vitality of these 
constitutional principles cannot be allowed to yield 
simply because of the disagreement with them.” 
Brown II [Brown v. Board of Education of Topeka 
II] [349 U.S. 294] at 300 [75 S.Ct. 753, 99 L.Ed. 
1083], . . .

“ Moreover, it is, the ‘effective disestablishment of a 
dual racially segregated school system’ that is required 
Wright v. Council of City of Emporia, 407 U.S. 451 
[92 S.Ct. 2196, 33 L.Ed.2d 51] . . . not, as seems to 
be contended by the defendants, the most ‘effective’ 
level of voluntarily acceptable ‘mixing’ of the races.” 
(Footnote omitted)

Having implemented the plan for desegregating the 
high schools by establishing zones for attendances which 
were designed to achieve a high degree of racial balance 
throughout the system, and having provided further for

Decision of Court of Appeals dated October 20, 1975



14a

continuance of a majority-to-minority transfer policy, the 
district judge conceived that he had obeyed the mandate 
of Brown v. Board of Education of Topeka II, 349 U.S. 
294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II) and 
more particularly of Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 
554 (1971). So do we. Presumably, the district judge 
might have ordered a further realignment when the first 
plan did not achieve the proper balance ratio, and yet 
another if that did not hold. Indeed if such were found 
to have been required to carry out the constitutional man­
date to eliminate the vestiges of a dual system, it would 
simply have to be done, and we have no doubt the district 
judge would faithfully have carried out that duty. What 
he was finally faced with here, however, was rather a 
more subtle and lingering malaise of fear and bias in 
the private sector which persisted after curative action 
had been taken to eliminate the dual system itself. Swann 
v. Board of Education recognizes that this latter may be 
beyond the effective reach of the Equal Protection Clause:

“Our objective in dealing with the issues presented by 
these cases is to see that school authorities exclude 
no pupil of a racial minority from any school, directly 
or indirectly, on account of race; it does not and can­
not embrace all the problems of racial prejudice, even 
when those problems contribute to disproportionate 
racial concentrations in some schools.”

Swann v. Board of Education, supra, 402 U.S. at 23, 
91 S.Ct. at 1279.

Decision of Court of Appeals dated October 20, 1975

Affirmed.



15a

E dwards, Circuit Judge (d issen tin g ).

This appeal presents just one significant question: 
Should we now, under applicable Supreme Court prece­
dent, affirm the District Judge’s final order of December 
18, 1973, approving a final desegregation order applicable 
to the Chattanooga high schools?

With all respect for the sincerity of my colleagues, I 
cannot join the majority opinion, or approve its result. 
I f  the majority opinion prevails in this court and in the 
Supreme Court, it will establish as law the proposition 
that approximately 60% of the black children in the high 
schools of the Chattanooga public school system may be 
continued forever in complete racial segregation in all 
black schools which were built as such under state law 
which required a racially dual school system and which 
have been continuously segregated as such down to this 
very moment. I cannot square this proposition with the 
great command of the Fourteenth Amendment to provide 
all American citizens “ the equal protection of the laws.”

The rule of this case is all the more significant because 
the smaller numbers, the maturity, and the greater mobil­
ity of high school students tend to make practical ac­
complishment of high school desegregation the least diffi­
cult part of the task mandated by Brown v. Board of 
Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873 (1954); Green v. County School Board of New Kent 
County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) 
and Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

The in banc per curiam opinion of the Sixth Circuit 
(Mapp v. Board of Education of the City of Chattanooga, 
Tennessee, 477 F.2d 851 (6th Cir.), cert, denied, 414 U.S. 
1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973)) constituted

Decision of Court of Appeals dated October 20, 1975



16a

unqualified approval of two previously entered opinions 
and judgments of Judge Wilson, Mapp v. Board of Edu­
cation of the City of Chattanooga, 329 F.Supp. 1374 (E.D. 
Tenn. 1971); Mapp v. Board of Education of the City of 
Chattanooga, 341 F.Supp. 193 (E.D.Tenn. 1972). In these 
two cases Judge Wilson had approved final desegrega­
tion orders concerning the grade schools and junior high 
schools. Equally clearly, he had not approved any final 
desegregation plan for the high schools. As to the high 
schools, in his first opinion he said:

High Schools

During the school year 1970-71, the Chattanooga 
School System operated five high schools. These in­
cluded four general curricula high schools and one 
technical high school. Kirkman Technical High School 
offers a specialized curricula in the technical and voca­
tional field and is the only school of its kind in the 
system. It draws its students from all areas of the City 
and is open to all students in the City on a wholly non- 
discriminatory basis pursuant to prior orders of this 
Court. Last year Kirkman Technical High School had 
an enrollment of 1,218 students, of which 129 were 
black and 1,089 were white. The relatively low en­
rollment of black students was due in part to the fact 
that Howard High School and Riverside High School, 
both of which were all-black high schools last year, 
offered many of the same technical and vocational 
courses as were offered at Kirkman. Under the defen­
dants’ plan these programs will be concentrated at 
Kirkman with the result that the enrollment at Kirk­
man is expected to rise to 1,646 students, with a racial

Decision of Court of Appeals dated October 20, 1975



17a

composition of 45% black students and 55% white 
students. No issue exists in the case but that Kirkman 
Technical High School is a specialized school, that it 
is fully desegregated, and that it is a unitary school.

While some variation in the curricula exists, the 
remaining four high schools, City High School, Brai- 
nerd High School, Howard High School, and River­
side High School, each offer a similar general high 
school curriculum. At the time when a dual school 
system was operated by the School Board, City High 
School and Brainerd High School were operated as 
white schools and Howard High School and Riverside 
High School were operated as black schools. At that 
time the black high schools were zoned, but the white 
high schools were not. When the dual school system 
was abolished by order of the Court in 1962, the de­
fendants proposed and the Court approved a freedom 
of choice plan with regard to the high schools. The 
plan accomplished some desegregation of the former 
white high schools, with City having 141 black students 
out of an enrollment of 1,435 and Brainerd having 184 
black students out of an enrollment of 1,344 during 
the 1970-71 school year. However, both Howard, with 
an enrollment of 1,313 and Riverside, with an enroll­
ment of 1,057, remained all black. The freedom of 
choice plan “having failed to undo segregation * * * 
freedom of choice must be held unacceptable.” Green 
v. County School Board of New Kent County, 391 U.S. 
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

The School Board proposes to accomplish a unitary 
school system within the high schools by zoning the 
four general curricula high schools with the following 
results in terms of student ratios:

Decision of Court of Appeals dated October 20, 1975



18a

Decision of Court of Appeals dated October 20, 1975

Black Students White Students

Brainerd High School 32% 68%
Chattanooga High School 44% 56%
Howard High School 75% 25%
Riverside High School 75% 25%

The plaintiffs have interposed objections to the de­
fendants’ high school plan upon the ground that it does 
not achieve a racial balance in each school. To some 
extent these objections are based upon matters of ed­
ucational policy rather than legal requirements. It is 
of course apparent that the former white high schools, 
particularly Brainerd High School, remain predomi­
nantly white and that the former black high schools 
remain predominantly black. However, the defendants 
offer some evidence in support of the burden cast upon 
them to justify the remaining imbalance. The need for 
tying the high school zones to feeder junior high 
schools is part of the defendants’ explanation. Resi­
dential patterns, natural geographical features, arte­
rial highways, and other factors are also part of the 
defendants’ explanation.

A  matter that has given concern to the Court, how­
ever, and which the Court feels is not adequately cov­
ered in the present record, is the extent to which the 
statistical data upon which the defendants’ plan is 
based will correspond with actual experience. Among 
other matters there appears to be substantial unused 
capacity in one or more of the city high schools. Be­
fore the Court can properly evaluate the reliability of 
the statistical data regarding the high schools, the 
Court needs to know whether the unused capacity does 
in fact exist and, if so, where it exists, whether it will



19a

be used and, if so, how it will be used. It would be 
unfortunate indeed if experience shortly proved the 
statistical data inadequate and inaccurate and this 
Court was deprived of the opportunity of considering 
those matters until on some appellate remand, as oc­
curred in the recent case of Davis v. Board of School 
Commissioners of Mobile, 402 U.S. 33, 91 S.Ct. 1289, 
28 L.Ed.2d 577.

The plaintiff has submitted a high school plan with 
high school zones which the plaintiff’s witness has 
testified will achieve a racial balance in each high 
school. However, this plan is not tied into the junior 
high school plan hereinabove approved and the Court 
is unable to say whether it could be so tied in. Fur­
thermore, the same statistical problem discussed above 
would appear to exist with regard to the plaintiff’s 
plan.

The Court accordingly is unable to give final ap­
proval to a high school desegregation plan at this 
time. Time, however, is a pressing factor. Pre-school 
activities will commence at each high school within less 
than a week, if in fact they have not already com­
menced. Full commencement of the fall term is only 
one month away. It is clear that the high schools must 
move at least as far as is proposed in the defendants’ 
high school plan. Accordingly, the Court will give 
tentative approval only at this time to the defendants’ 
high school plan in order that at least as much as is 
therein proposed may be placed into operation at the 
commencement of the September 1971 term of school. 
Further prompt but orderly judicial proceedings must 
ensue before the Court can decide upon a final plan for 
desegregation of the high schools.

Decision of Court of Appeals dated October 20, 1975



20a

In the meanwhile, the defendants will he required to 
promptly provide the Court with information upon the 
student capacity of each of the four high schools under 
discussion, upon the amount of unused space in each of 
the four high schools, the suitability of such space for 
use in high school programs, and the proposed use to 
be made of such space, if any. In this connection the 
defendants should likewise advise the Court regarding 
its plan as to tuition students. Last year almost one- 
third of the total student body at City High School 
were nonresident tuition paying students. There is 
no information in the present record as to the extent 
the Board proposes to admit tuition students nor the 
effect this might have on the racial composition of the 
student body. The Court has no disapproval of the 
admission of tuition students nor to the giving of pref­
erence to senior students in this regard, provided that 
the same does not materially and unfavorably distort 
the student racial ratios in the respective schools. 
Otherwise, the matter of admitting tuition students 
addresses itself solely to the discretion of the Board. 
No later than the 10th day of enrollment the defendants 
will provide the Court with actual enrollment data 
upon each of the four high schools here under discus­
sion.

Mapp v. Board of Education of the City of Chatta­
nooga, supra at 1384-86.

In his second opinion he said:

Tentative approval only having heretofore been 
given to the School Board plan for desegregation of 
the Chattanooga high schools other than Kirkman

Decision of Court of Appeals dated October 20, 1975



21a

Technical High School (to which final approval has 
been given). Further consideration must be given to 
this phase of the plan. At the time that the Court gave 
its tentative approval to the high school desegregation 
plan, the Court desired additional information from 
the Board of Education as to whether three, rather 
than four, general purpose high schools would be feas­
ible or desirable in Chattanooga. It now appears, and 
in this both parties are in agreement, that three gen­
eral purpose high schools rather than four is not 
feasible or desirable, at least for the present school 
year. Having resolved this matter to the satisfaction 
of the Court, the defendant Board of Education will 
accordingly submit a further report on or before June 
15, 1972, in which they either demonstrate that any 
racial imbalance remaining in the four general purpose 
high schools is not the result of “present or past dis­
criminatory action on their part” Swann v. Charlotte- 
MecTdenburg Board of Education, 402 U.S. at 26, 91 
S.Ct. at 1281, 28 L.Ed.2d 554 at 572, or otherwise, and 
to the extent that the Board is unable to demonstrate 
that such racial imbalance which remains is not the 
result of past or present discriminatory action, they 
should submit a further plan for removal of all such 
remaining racial discrimination, the further plan like­
wise to be submitted on or before June 15, 1972.

Mapp v. Board of Education of the City of Chatta­
nooga, supra at 200.

The opinion and order we now review are quite different, 
and if approved by this Court and the Supreme Court, 
would represent both a final approval of the school board’s 
current “ plan” for operation of the high schools and hold-

Decision of Court of Appeals dated October 20, 1975



22a

mg that the present operation represents desegregation of 
the previously legally segregated dual high school system.

In the opinion we now review Judge Wilson said:

The Coiirt is accordingly of the opinion that the 
defendants have failed to establish either such changed 
conditions as would render its formerly court-approved 
plan of school desegregation inadequate or improper 
to remove “all remaining vestiges of state imposed 
segregation” or that its newly proposed plan would 
accomplish that result.

To the extent that the Court has previously given 
only tentative approval to the high school zoning plan, 
final approval will now be given that plan. Two high 
schools, Howard High School and Riverside High 
School, have not acquired an enrollment of white stu­
dents as projected by the Board when the plan was 
proposed in 1971, but rather have remained substan­
tially all black. It was a concern for the accuracy of 
these projections that caused the Court to initially give 
only tentative approval to the high school zoning plan. 
However, subsequent evidence has now demonstrated 
that changing demographic conditions within the City 
and other de facto conditions beyond the control and 
responsibility of the School Board, including the volun­
tary withdrawal of white students from the system, 
have become the causative factors for the present racial 
composition of the student body in those schools, and 
not the original action of the Board in creating segre­
gated schools at these locations. It should be recalled 
in this connection that the plan previously approved 
included provision for students to elect to transfer 
from a school in which they were in a majority to a 
school in which they would be in a minority.

Decision of Court of Appeals dated October 20, 1975



23a

Mapp v. Board of Education of the City of Chatta­
nooga, 366 F.Supp. 1257, 1260-61 (E.D.Tenn.1973).

Thus, clearly, we now have before us the issue as to 
whether or not in the Chattanooga high schools previous 
unconstitutional segregation has been eliminated “ root and 
branch.” Green v. County School Board of New Kent 
County, 391 TT.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

Defendants-appellees accept (as they must) the respon­
sibility of meeting the standard of Green v. County School 
Board of Kent County, supra:

It is against this background that 13 years after 
Brown II  commanded the abolition of dual systems we 
must measure the effectiveness of respondent School 
Board’s “ freedom-of-choice” plan to achieve that end.

The School Board contends that it has fully discharged 
its obligation by adopting a plan by which every 
student, regardless of race, may “ freely”  choose the 
school he will attend. The Board attempts to cast the 
issue in its broadest form by arguing that its “ freedom- 
of-choice” plan may be faulted only by reading the 
Fourteenth Amendment as universally requiring “com­
pulsory integration,” a reading it insists the wording 
of the Amendment will not support. But that argu­
ment ignores the thrust of Brown II. In the light of 
the command of that case, what is involved here is the 
question whether the Board has achieved the “ racially 
nondiscriminatory school system” Brown II held must 
be effectuated in order to remedy the established un­
constitutional deficiencies of its segregated system. In 
the context of the state-imposed segregated pattern of 
long standing, the fact that in 1965 the Board opened

Decision of Court of Appeals dated October 20, 1975



24a

the doors of the former “white” school to Negro chil­
dren and of the “ Negro” school to white children 
merely begins, not ends, our inquiry whether the Board 
has taken steps adequate to abolish its dual, segre­
gated system. Brown II was a call for the dismantling 
of well-entrenched dual systems tempered by an aware­
ness that complex and multifaceted problems would 
arise which would require time and flexibility for a 
successful resolution. School boards such as the re­
spondent then operating state-compelling dual sys­
tems were nevertheless clearly charged with the af­
firmative duty to take whatever steps might be neces­
sary to convert to a unitary system in which racial 
discrimination would be eliminated root and branch. 
See Cooper v. Aaron, supra [358 U.S. 1] at 7 [78 S.Ct. 
1401, 3 L.Ed.2d 5 ]; Bradley v. School Board, 382 U.S. 
103 [86 S.Ct. 224, 15 L.Ed.2d 187]; cf. Watson v. City 
of Memphis, 373 U.S. 526 [83 S.Ct. 1314, 10 L.Ed.2d 
529], The constitutional rights of Negro school chil­
dren articulated in Brown I  permit no less than this; 
and it was to this end that Brown II commanded school 
boards to bend their efforts.4

Decision of Court of Appeals dated October 20, 1975

4 “We bear in mind that the court has not merely the 
power but the duty to render a decree which will so far as 
possible eliminate the discriminatory effects of the past as 
well as bar like discrimination in the future.” Louisiana V. 
United States, 380 U.S. 145, 154 [85 S.Ct. 817, 822, 13 L.Ed.2d 
709], Compare the remedies discussed in, e. g., NLBB v. 
Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241 
[60 S.Ct. 203, 84 L.Ed. 219]; United States v. Crescent 
Amusement Co., 323 U.S. 173 [65 S.Ct. 254, 89 L.Ed 160] ; 
Standard Oil Co. v. United States, 221 U.S. 1 [31 S.Ct. 502, 
34 L.R.A.,N.S., 834 55 L.Ed. 619]. See also Griffin v. County 
School Board of Prince Edward County, 377 U.S. 218, 232- 
234 [84 S.Ct. 1226, 1233-1235, 12 L.Ed.2d 256],



25a

In determining whether respondent School Board 
met that command by adopting its “ freedom-of-choice” 
plan, it is relevant that this first step did not come 
until some 11 years after Brown 1 was decided and 10 
years after Brown II directed the making of a “prompt 
and reasonable start.” This deliberate perpetuation 
of the unconstitutional dual system can only have com­
pounded the harm of such a system. Such delays are 
no longer tolerable, for “the governing constitutional 
principles no longer bear the imprint of newly enunci­
ated doctrine.” Watson v. City of Memphis, supra 
[373 U.S.] at 529 [83 S.Ct. [1314] at 1316]; see Brad­
ley v. School Board [City of Richmond, Va.], supra; 
Rogers v. Paul, 382 U.S. 198 [86 S.Ct. 358, 15 L.Ed.2d 
265]. Moreover, a plan that at this late date fails to 
provide a meaningful assurance of prompt and effec­
tive disestablishment of a dual system is also in­
tolerable. “The time for mere ‘deliberate speed’ has 
run out,” Griffin v. County School Board [of Prince 
Edward County], 377 U.S. 218, 234 [84 S.Ct. 1226, 
1235, 12 L.Ed.2d 256], “the context in which we must 
interpret and apply this language [of Brown II] to 
plans for desegregation has been significantly altered.” 
Goss v. Board of Education [of City of Knoxville, 
Term.], 373 TT.S. 683, 689 [83 S.Ct. 1405, 1409, 10 
L.Ed.2d 632], See Calhoun v. Latimer, 377 U.S. 263 
[84 S.Ct. 1235, 12 L.Ed.2d 288]. The burden on a 
school board today is to come forward with a plan that 
promises realistically to work, and promises realis­
tically to work noiv.

Green v. County School Board of New Kent County, 
supra at 437-39, 88 S.Ct. at 1693.

Decision of Court of Appeals dated October 20, 1975



26a

At the outset we note that we deal with a school district 
which at the time of the beginning of this litigation was 
clearly and concededly a dual school system segregated 
by race according to state statute. We therefore are re­
quired to determine whether or not a public high school 
system (racially constituted during the 1973-74 school year 
as follows) can be held by this court to have been de­
segregated “ root and branch” :

Decision of Court of Appeals dated October 20, 1975

White Black
%

White
%

Black
Howard ................... 10 999 1 99
Riverside ............... 3 721 1 99
Chattanooga..... ..... 439 330 57 43
Brainerd ........... . .... 646 404 61 39

There can, of course, be no doubt that Howard and
Riverside High Schools are “ racially separate public
schools established and maintained by state action.”  Swann 
v. CJiarlotte-Mecklenburg Board of Education, 402 U.8. 1, 
5, 91 S.Ct. 1267, 1271, 28 L.Ed.2d 554 (1971). Both were 
built as Negro schools under state law which required a 
dual school system. T.C.A. §§ 2377, 2393.9 (Williams 1934). 
Twenty-one years after decision of Brown v. Board of 
Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873 (1954), both high schools (encompassing 60% of the 
black high school population of Chattanooga) are still 
(and always have been) essentially 100% black. As to 
these schools and students, there has been no desegrega­
tion at all.

Defendants-appellees contend that two measures which 
they took should be accepted as the equivalent of deseg­
regation. They are: 1) the inauguration of a freedom of 
choice plan, and 2) a change in zone boundaries which



27a

was calculated (it is claimed) to introduce 25% of white 
students into both high schools. Defendants-appellees 
freely admit that neither measure was effective in chang­
ing the segregated character of the Howard and Riverside 
High Schools.

As to the freedom of choice plans, the Supreme Court 
has repeatedly held that ineffective freedom of choice 
plans are not a substitute for desegregation in fact. See 
Green v. County School Board of New Kent County, 
supra; Monroe v. Board of Commissioners of the City of 
Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 
(1968).

Defendants-appellees’ strongest reliance is upon the sec­
ond contention that they “ zoned” 25% white students into 
Howard and Riverside but that the white students thus 
assigned avoided the assignment by “white-flight.”  As to 
this measure, we have no findings of fact concerning 
defendants-appellees’ contention. But if we assumed their 
truth, we clearly would not have exhausted the possibili­
ties for successful desegregation nor satisfied the consti­
tutional command. Many possibilities for desegregation 
remain, including pairing of white and black schools and 
high school construction which would make desegregated 
zones more feasible. In any instance, the defendant school 
board should be required to propose a new and realistic 
plan to meet its constitutional duty. See Swann v. Char- 
lotte-Mecklenbtirg Board of Education, supra, 402 U.S. at 
15-21, 91 S.Ct. 1267; Brinkman v. Gilligan, 518 F.2d 853 
(6th Cir. 1975).

In my judgment the case should be affirmed as to the 
grade schools and junior high schools. The judgment 
should be vacated and remanded as to the high schools. 
All other issues presented by. either party should be sum­
marily denied.

Decision of Court of Appeals dated October 20, 1975



28a

Order of Court of Appeals 
dated January 27, 1976

UNITED STATES COURT OF APPEALS 

S ix t h  Circuit 

Jan. 27, 1976.

No. 74-2100.

J ames J o nathan  M app , et al.,

Plaintiff s-Appellants, 
v.

T h e  B oard op E ducation  op th e  
C it y  op C hattanooga, et al.,

Defendant-Appellees.

B e f o r e  :
W e ic k , E dwards and E ngeu,

Circuit Judges.

Order

This cause, 6 Cir., 525 F.2d 169, came on for hearing on 
the petition for rehearing with a suggestion that it he 
reheard en banc.

Judges Edwards and McCree having requested en banc 
rehearing for the reasons set forth in Judge Edwards’ 
dissenting opinion, but it appearing to the court that less 
than a majority of the court has voted in favor thereof, 
the petition for rehearing was referred to the panel which 
originally heard the appeal and was determined not to be 
well taken, Judge Edwards dissenting.



29a

It is therefore ordered that the petition for rehearing 
be denied.

E dwards, Circuit Judge (dissenting).

Although the Board of Education of the City of Chatta­
nooga has at long last, under orders of the Supreme Court 
of the United States, this court, and the United States 
District Court, proceeded to bring both its grade schools 
and junior high schools into compliance with the Constitu­
tion of the United States, as to two of its high schools it 
has signally failed to do so. The majority opinion of this 
court would establish as law the proposition that approxi­
mately 60% of the black children of the Chattanooga high 
school system may be continued forever in complete segre­
gation in all-black high schools. The two black high schools 
at issue were built as such under state law that required a 
racially dual school system and have been continuously 
segregated as such down to this very moment.

There can be no doubt that the two black high schools 
are racially separate public schools established and main­
tained by state action and that as to these schools there has 
been no desegregation at all. In my judgment it simply 
cannot be said with any accuracy that the possibilities for 
successful desegregation have been exhausted. As to these 
schools the School Board should be required to propose a 
new and realistic and effective plan to meet its constitu­
tional duty.

Order of Court of Appeals dated January 27, 1976



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