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

    I

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 73-1667

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

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

J
Defendants-Appellees.

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

BRIEF FOR APPELLANTS

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
ELIJAH NOEL, JR.
Ratner, Sugarmon & 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 Appellants



TABLE OF CONTENTS

Page
Table of Cases..............................  ii
Issue Presented for Review..................  1
Statement of the C a s e ......................  3

Proceedings ............................  5
The Plans..............................  7
The District Court's Decision ..........  16

ARGUMENT —

Mo Plan of "Desegregation" Which Assigns
21,000 Black Students To All-Black Schools 
Can Meet The Constitutional Obligations J 
Of The Memphis School Board;
A Complete Desegregation Plan With A 
Maximum Busing Time of 52 Minutes Is 
No Less Feasible And Practicable Than A 
Plan Busing Students 45 Minutes But 
Leaving 25 All-Black Schools Which Enroll
21,000 Black Children ..................  19

"Adaptability" ............. 23
" C o s t " ......................  33
"Preservation of desegregation" 34
"Time and distance"..........  37

Conclusion..................................  3 9

Appendix A - History of Case Since Remand
of August 29, 1972 ............  la

l



Table of Contents (continued)

Page

Appendix B - Medley v. School Board of the
City of Danville, Virginia, No.
72-2373 (4th Cir., August 3,
1973) ...........................  lb

Appendix C - Comparison of Enrollment Projections 
at All-Black or Virtually All-Black 
Schools Remaining Under Plan Approved 
by District Court and Under Plan 
Supported by Plaintiffs, With and 
Without Attrition Formula Applied lc

TABLE OF CASES
Bradley v. Milliken, No. 72-1809 (6th Cir., aI

June 12, 1973)    27, 33
Brewer v. School Bd. of Norfolk, 456 F.2d

943 (4th Cir.), cert, denied, 406 U.S.
933 (1972) ............................  33

Brown v. Board of Educ., 347 U.S. 483 (1954) . 20, 25
Brunson v. Board of Trustees, 429 F.2d 820 ,

(4th Cir. 1970)...........................  27
Cooper v. Aaron, 358 U.S. 1 (1958)..........  26
Davis v. Board of School Comm'rs of Mobile,

402 U.S. 33 (1971) ....................  18 /
Franklin v. Quitman County Bd. of Educ.,

443 F . 2d 909 (5th Cir. 1971) ..........  24n
Goss v. Board of Educ. of Knoxville, No.

72-1766 (6th Cir., July 18, 1973) . . . 19, 22, 33
Green v. County School Bd., 391 U.S. 430 (1968) 20

ii



Table of Cases (continued)

Pa£e

Kelley v. Metropolitan County Bd. of Educ.,
463 F.2d 732 (6th Cir.), cert, denied,
409 U.S. 1001 (1972) ..................  2-3, 20

Kelley v. Metropolitan County Bd. of Educ.,
436 F.2d 856 (6th Cir. 1970) ..........  20

Mapp v. Board of Educ. of Chattanooga, 477
F.2d 851 (6th Cir. 1973) ..............  19

Medley v. School Bd. of Danville, No. 72-2373
(4th Cir., August 3, 1973) ............  21n

Monroe v. Board of Comm'rs of Jackson, 391
U.S. 450 (1968)........................ J 24, 25, 26, 32

Monroe v. Board of Comm'rs of Jackson, 427
F.2d 1006 (6th Cir. 1970)..............  25

Northcross v. Board of Educ. of Memphis,
466 F.2d 890 (6th Cir. 1972), cert.
denied, ___U.S. ____ (1973), vacated
and remanded on other grounds, ___ U.S.
___ (1973) ............................  3, 20, 22n

Northcross v. Board of Educ., 333 F.2d 661
(6th Cir. 1964)........................  35n, 36

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971)......................  18, 20, 37

Thompson v. School Bd. of Newport News, 465 
F.2d 83 (4th Cir. 1972), cert, denied,
___ U.S. ___ (1973)....................  37

It's Not the Distance, "It's the Niggers"
(NAACP Legal Defense and Educational
Fund, Inc., 1972)......................  24



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 73-1667

DEBORAH A. NORTIICROSS, et al.,
Plaintiffs-Appellants,

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

aJDefendants-Appellees.
o ------ i , '

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

BRIEF FOR APPELLANTS 

Issue Presented for Review

Whether the mandate of the Constitution, and that of 
this Court, requiring the eradication of the dual school system 
and its vestiges, is satisfied by the adoption of a plan which 
assigns over 21,000 black school children--almost one-third 
of all Memphis black students— to all-black schools, where:



(a) the district court expressly admitted 
it was ordering a lesser degree of desegregation 
than was feasible because it feared white students 
would leave the system in greater numbers if total 
desegregation were ordered;

(b) the cost of a complete plan of desegre­
gation would amount to less than 3% of a total school 
system budget projected at $104 million;

(c) the plan fails to desegregate all schools 
in part because of its designers’ desire to Maintain 
assignments under the incomplete plan of desegregation 
implemented last year, to which plaintiffs objected
at the time of its approval, and which this Court held 
to be insufficient compliance with the Constitution in 
its ruling of August 29, 1972; and

(d) the times and distances of travel required 
in order to achieve complete desegregation, while 
greater in some instances than those required under 
the inadequate plan approved by the district court, 
are well below those approved by this Court's 
decision in Kelley v. Metropolitan County Bd. of Educ.,



463 F.2d 732 (6th Cir.), cert, denied, 409 U.S. 1001
\

(1972); they were not characterized by the Memphis
I

school administrators who testified at the hearing 
before the district court, as being in themselves 
educationally harmful, although those witnesses 
expressed a preference for the plan ultimately 
approved by the district court.

Statement of the Case

The recent procedural history of this school desegregation
j i/action is set forth in detail in Appendix "A" hereto. This 

appeal concerns the adequacy of the desegregation plan for 
the Memphis public schools adopted by the district court 
following this Court's August 29, 1972 remand. Northcross v. 
Board of Educ. of Memphis, 466 F.2d 890 (6th Cir. 1972), cert.
den. , ____ U.S. ____ (1973) , vacated in part and remanded on
other grounds, ____ U.S. ____ (1973). That plan, denominated
"Plan Z" by the district court (and variously styled "Board 
Plan," "Plan II Elementary," "Sonnenburg Plan," "Plan II 
Secondary," or simply "Plan II" in the testimony and exhibits

1/ Appendix "A," and this Brief, cover only those events since 
this Court's 1972 remand. See text infra. The prior history of 
the case is set out in detail in Appendix "A" to the Brief for 
Cross-Appellants in No. 72-1631 filed on or about June 30, 1972.



below), is projected to assign 21,314 black Memphis students to
all-black or virtually all-black (95% or more) facilities, allI
of which were constructed and operated as black schools under
the dual system: two high schools, four junior high schools,

2/
and nineteen elementary schools. The issue before this Court 
therefore, is whether the district court's determination to 
accept— as the end-product of more than a decade of desegre­
gation litigation in Memphis— a plan under which 30% of all

3/
black students in Memphis will go to all-black schools, can 
be justified on this record and on the grounds stated by the
court below.

2/ At the time of the major hearing before the district court 
in April, 1973, following which that court approved Plan Z 
for implementation and directed submission of actual satellite 
zones for the secondary plan, the projections of actual enroll­
ment under Plan Z were based upon Fall, 1972 semester school 
memberships (prior to implementation of Plan A, see Appendix "A 
to this Brief). Using that data base, Plan Z was projected to 
enroll 22,137 black students, 29% of all black children in 
the system (including kindergarten and special education 
students) in all- or virtually all-black schools. However, 
prior to the district court's final approval of Plan Z and 
the satellite zones drawn by the school staff, new enrollment 
projections were entered into the record in the Board's Report 
and as an exhibit to Dr. Stephens' deposition of June 25, 1973. 
These projections were based upon Spring, 1973 (post-Plan A 
implementation) elementary school enrollments and actual 
satellite zone pupil locator map counts reflecting second 
semester enrollments in secondary schools. The updated figures 
are given in the text.
3/ Excluding special education and kindergarten students from 
the computation. See Exhibit 1 to deposition of Dr. Stephens, 
June 25, 1973.

4



Proceedings

Following this Court's August 29, 1972 remand, the ; 
district court conducted several hearings and eventually- 
determined that the partial desegregation steps in contro­
versy here last year (Plan A) should not be implemented

4/until the second semester of the 1972-73 school year.
5/

See 9/27/72 Mem. Op.

Thereafter, the Court directed the school board to 
complete preparation of a pupil locator map and to submit by 
February, 1973 a plan which, when effectuated, wohld complete 
the desegregation process in Memphis. See 11/15/72 Mem. Op., 
at p. 14. The submission date was subsequently enlarged by 
the Court, and on March 12, 1973 (Tr. 12), the school board 
submitted a series of desegregation plans to the Court

4/ High school desegregation was further postponed until 
the 1973-74 school year. See No. 72-2053 in this Court.
5/ Since this appeal is being heard on the original papers 
pursuant to this Court's Order of June 14, 1973, and as we did 
last year, we shall refer to the various opinions and orders 
below, whether titled or untitled, by date; citations in the 
form "Tr. " are to the transcript of the hearing commencing 
April 18, 1973, all of which is consecutively paginated. Exhibits 
at that hearing will be identified as they are in the opinions 
of the court below: as "H.E. ." Depositions introduced into
evidence will be appropriately identified by witness and date. 
Pleadings will be identified by the title and date of filing.

 ̂ -



(H.E. 1).6/ |
The combination of Board Plan I, a secondary plan,

1
■and Plan III, an elementary plan, would desegregate every 

school in the Memphis system (Tr. 16, 17, 23). Plan II 
Secondary and elementary)would leave over 21,000 black 
Memphis students in all-black schools (see note 2 supra).

Pursuant to a district court order of March 16, 1973, 
defendant:, subsequently filed maps illustrating the various 
plans (H.E. 8 - H.E. 14), and both parties on April 9, 1973 
submitted statements of position on the plans. Plaintiffs 
supported Plan I (secondary) and Plan III (elementary) with 
certain ..suggested modifications; the school board expressed 
its preference for the more limited Plan II.

A three-day hearing was held April 18-20, 1973, 
following which the district court, in an opinion issued 
on May 3, 1973 (and by judgment entered May 17, 1973), 
approved Plan II in principle and required submission of

6/ By agreement of the parties, three additional copies of 
H.E. 1, containing the desegregation plans supported by the 
parties, have been forwarded to the Clerk of this Court for 
distribution to the members of the panel.

6



These were
2Jactual satellite zones for its approval, 

submitted by the school board on May 24, 1973; plaintiffs 
subsequently took additional testimony thereon by way of 
deposition and formally responded; on July 26, 1973, the

8/district court entered its judgment approving the zones.

The Plans

This matter involves the question of which desegre­
gation plan of the Memphis school board fulfills the
constitutional obligation of that agency. The plan supported

J
by plaintiffs is one drawn by the team of administrators 
assembled by the school board (Tr. 16), with the goalof 
desegregating every facility in the system (Tr. 16, 17, 23).

7/ The plans were submitted by the board with the understanding 
that satellite zones for assignment of secondary pupils had not 
been drawn; the plans and accompanying maps indicate the numbers 
of pupils to be exchanged between or among the various existing 
attendance zones, however. The procedure, which was satisfactory 
to all parties, eliminated the necessity of drawing detailed 
satellite zones from pupil locator information twice: once for
Plan I and again for Plan II, in advance of a determination by 
the district court as to which plan would satisfy the board's 
constitutional obligations.
8/ The district court's July 26, 1973 order provided that 
the record on this appeal from the court's May 17, 1973 
judgment approving Plan II, subject only to the submission of 
acceptable satellite zones, be supplemented with the evidence 
and pleadings leading to the entry of that [July 26] order, 
and we understand this has been accortvplished.

7



The witnesses agreed that it was as good a plan as could be1
drawn for this purpose (Tr. 73, 142, 231; cf. Tr. 489, 497).

A total of five different plans was submitted by the
board to the district court: two secondary alternatives and
three elementary plans. As indicated by their order of
presentation in H.E. 1, Plan III Elementary was designed
to be most compatible with Plan I Secondary, while Plan II

1/Elementary and Plan II Secondary were articulated. All
plans use transportation and non-contiguous "satellite"

10/zones at the secondary level, and transportation and
J

non-contiguous pairing or clustering at the elementary grades. 
The difference between the plans supported by the plaintiffs

9/ On occasion in the testimony, "Plan 1" is used to refer 
to the secondary Plan I - elementary Plan III combination, 
and "Plan 2" to secondary Plan II - elementary Plan II.
10/ Although the school board eventually selected the 
"satellite" or non-contiguous zoning technique, it also 
discussed selection of students to be transported from existing 
secondary school zones to new school assignments on the basis 
of a lottery (Tr. 128-29). All plans before the district court, 
and involved in this appeal, use the existing (pre-Plan A) 
attendance zones of the Memphis public schools as the basis for 
the desegregation steps proposed. At the elementary grade 
level, existing school attendance areas are paired or clustered 
and grade structures revised; at the secondary level, the 
results projected under both Plan I and Plan II were arrived at 
by designating the number of white or black students to be 
removed from any particular area and reassigned, with delineation 
of the satellite zone which would accomplish this result to be 
completed by using the updated pupil locator map. See note 7 
supra.

8



and the school board result from the differing extent to
1which these desegregation tools are employed: while the

Plan I-Plan III combination utilizes them fully to desegregate
every school, Plan II leaves some 25 black school facilities

11/out entirely. Both plans, as drafted by the board's
desegregation team, have in common certain design limitations:
(a) the preservation, with varying exceptions, of assignments
made for the Spring, 1973 semester under Plan A; (b) the
determination to utilize contiguous pairing and rezoning

12/
insofar as possible in the mid-city area (Tr. 55); and

J

11/ As a result, Plan II also maintains far more majority- 
white schools, in this nearly 60% black system (H.E. 1, p. i), 
than does Plan I (Tr. 500). Indeed, virtually every school 
which was majority white in 1971-72, prior to this Court's 
determination of the last appeal, retains majority-white status 
under Plan II (Tr. 211, 216). And under Plan II, unlike 
Plan III, at the elementary level, many clusters involve several 
white schools and only one black school with resulting white 
predominance (Tr. 172-73).
12/ The determination to utilize rezoning and contiguous pairing 
(maintain Plan A techniques at the elementary level or those 
which had been proposed for Plan A at the high school level) 
in the mid-city area is a particularly critical one. Against 
the background of rigid residential segregation in the city 
(see 466 F.2d, at 893), with blacks generally concentrated 
in the western areas and whites to the east, two polar 
desegregation techniques are available: maximum use of
contiguous zoning and pairing in the middle, with busing only 
at the extremes; and pupil exchanges between the middle and 
each end. The former technique minimizes the number of 
students transpoi ed, although the distance some of those who 
travel must go is great; the latter technique results in more 
students riding but minimizes the distance of the rides. Plain­
tiffs do not quarrel with the school board's choice of the first 
alternative except insofar as it is then sought to be used as a 
justification for leaving 21,000 black students in all-black school

9



(c) the limitation, in the drawing of satellite zones under
\

the plans, of the number of students whose assignments would
Ibe changed to equal 30% of the school's optimum capacity, 

plus the number by which that optimum capacity is presently
13/

exceeded. As a consequence of these limitations, the
level of desegregation is reduced, and plaintiffs accordingly 
pressed for certain modifications even of Plan I, otherwise 
acceptable to them in its basic format.

I

13/ The process works as follows: Assume White .School and
Black School are two uni-racial high schools scheduled to 
"exchange" pupils in satellite zones for desegregation. Each 
enrolls 500 pupils, but their "optimum" capacities are 550 
students and 450 students, respectively. The board's desegre­
gation team was guided by the notion that 70% of optimum 
capacity presently enrolled in each school should not be 
reassigned. That is, 385 of the 500 pupils at White School 
should remain, but only 315 of the black students at Black 
School. Since each school is to be filled only to its 
optimum capacity (Tr. 158), White School can receive only 165 
of the 185 students at Black School subject to reassignment.
The 20 "extra" black students might remain at Black School 
f'/hich will also receive 115 White School pupils) , or be assigned 
elsewhere in the system— with little effect upon the racial 
composition remaining at Black School. The end result of the 
exchanges and the "70% of optimum capacity" limitation upon 
student movement is that White School remains 70% white and 
Black School remains 73% black. Although the team charac­
terized the limitation as one designed to end differential 
school utilization (Tr. 205-07), it is perfectly apparent 
from this example that both schools could be utilized at their 
optimum capacities and their continuing racial identifiability 
eliminated by the creation of appropriate satellite zones 
without this limitation.

10 -



All of the plans submitted to the district court were
based on December, 1972 (pre-plan A) enrollment data (Tr. 23, 
25); but prior to the final approval of July 26, 1973, the 
projections were updated to conform to March, 1973 (post- 
Plan A implementation) enrollment figures. See Exhibit A 
to May 24, 1973 Report to the Court filed by school board; 
Exhibit 1 to June 25, 1973 deposition of Dr. Stephens. The 
estimates of cost, and of times and distances of pupil travel, 
were based upon actual experience under Plan A (Tr. 27-28) 
and were both smaller and more realistic than the estimates 
which had been made when Plans A and B were first considered 
last year (Tr. 27-30, 588-90).

Each plan, or combination of plans, also had a "Raleigh
Addendum," pursuant to the district court's direction:

"that the defendants include for consideration 
in the preparation of the plan for further 
desegregation, those areas to be annexed 
on December 31, 1972, and to be included 
within the defendants' jurisdiction at the 
commencement of the 1973-74 school year."
12/14/72 Mem. Op., at p. 1. 14/

14/ As the Court may recall from last year's appeals, see 
Brief for Plaintiffs-Appellees in No. 72-1630, pp. 16-19, 26-30, 
the size of the City of Memphis and its school system has steadil 
increased in recent years through annexations of territory from 
surrounding Shelby County, Tennessee. The "Raleigh" area annexed 
to Memphis effective January 1, 1973, and including schools trans 
ferred to the Memphis board's jurisdiction July, 1973, is located 
in extreme northeast Memphis; the Raleigh schools do not appear 
on II.E. 8 - II.E. 14, but only on the series of maps introduced 
by plaintiffs, II.E. 18 - H.E. 20.

11



(The Raleigh Addendum for Plan I appears as H.E. 1-A,. and that

for Plan II is found at H.E. 1, pp. 37-40.)

While sharing these general characteristics, the plans 
may be further described, and their differences identified, 
as follows: Under the Plan I (secondary) - Plan III (elementary)
combination, every school facility in the system would be 
desegregated (Tr. 16, 17, 23). Although there were no time 
constraints in the development of the plans (Tr. 68), they 
do represent reductions of time and distance traveled in !
comparison to the suggestions of Board of Education members 
(Tr. 52, 197-98) which led to the drafting of Plans I, II

15/and III (Tr. 124).

The maximum time for pupil transportation projected under 
PlansI-III, with plaintiffs' modifications, was 63 minutes fop 
one elementary trip (Tr.163-64; H.E. 33) or 52 minutes for the 
same trip if the school buses used the interstate highways and

II /
15/ The team initially submitted to the Board the skeletal 
outlines of a secondary plan which called for eliminating 
several of the City's graduating high schools through grade 
restructuring (Tr. 122-23). There was general dissatisfaction 
with this proposal, with one result being attempts by various 
board members to devise plans of their own (ibid.; see deposi­
tions of Mrs. Coe and Mrs. Sonnenburg of April 16, 1973 and 
April 17, 1973, respectively). The team then adapted these 
proposals, in order to reduce the transportation times to 
acceptable levels, developing them into Plans I and II (Tr. 
197-98, 245).

12



expressways (Tr. 30-31, 163). At the secondary level, no 
pupils would be bused longer than 45 minutes (Tr. 198; H.E.
33). Under Plan I-III, with plaintiffs' modifications, the 
vast majority of Memphis students who are bused will be 
transported between 31 and 45 minutes, especially if the 
expressway routes are utilized (H.E. 33). 41.4 per cent
of all students would be transported to school (ibid.).■

The total cost of Plan I-III, with plaintiffs' suggested
modifications and the accompanying Raleigh Addendum (H.E. 1-A),

16/was put at $2,793,911 (Tr. 36). This is 2.6% of a total
J

school system budget projected to be $104 million (Tr. 418).

Under Plan II, on the other hand, 25 black schools are 
completely left out of the desegregation process (H.E. 1).
Not only are student assignments to these all-black or 
virtually all-black schools unaffected by the plan, but the 
supplementary services which the system intends to provide 
at other schools, in order to facilitate integration, will 
not be made available to the 21,000 black pupils left in the

16/ Plaintiffs had projected a somewhat lower figure of 
$2,573,095.95 using expressways, or $2,692,441.30 without express­
way travel (H.E. 34), but the difference is not significant 
for the purposes of this appeal.

13



iZ/all-black buildings (Tr. 171-72).

Plan II was deliberately designed to leave these students 
in segregated schools in order to maintain a greater number of 
Plan A assignments, and to keep more pupil transportation 
times nearer the Plan A range (Tr. 17, 21, 23, 53). The longest 
bus ride under the plan will be 45 minutes at both elementary 
and secondary levels (H.E. 1, pp. 100-08); about 44% of all 
Memphis' transported pupils will spend between 31 and 45 minutes 
en route.

aJPlan II maintains many more majority-white schools, at 
all levels, than Plans I-III; using 15% above or below the 
system-wide, grade-level student ratio as a rough measure of 
racially identifiable schools, Plan II creates many more such 
facilities than Plans I-III (see H.E. 35; Tr. 581-88). Plan II 
also involves significantly more one-way busing of black 
students, as in the closing of Hyde Park School as part of 
the Plan II Raleigh Addendum (Tr. 100, 289).

17/ Under Plan II, almost 20% of Memphis' black senior 
high school students, 23% of black junior high pupils, and 
40% of black elementary children are assigned to all-black 
facilities. See note 2 supra.

14



The total cost of Plan II was estimated to be $1,683,897,

or 1.6% of the budget (Tr. 36).

Three members of the desegregation team, the Superintendent 
and an expert witness for plaintiffs, Dr. Gordon Foster, 
testified about the plans. There was agreement among these 
witnesses that if all schools were to be desegregated, the 
Plan I-III combination was about the best method which could 
be devised (e.g. , Tr. 74, 142, 231). Dr. Stephens, for 
example, said that he was "ambivalent" about Plan II secondary, 
because it did not desegregate all junior and senior high 
schools., (Tr. 145) , and that he supported it only because it was 
less expensive than Plan I (Tr. 74).

All of the plans were characterized as educationally 
sound; see Tr. 60 (Dr. Stephens: Plans I-III are less
acceptable to the public but educationally o.k.); Tr. 165 
(while Dr. Sweet dislikes the maximum trip time under Plan III, 
he has had no experience with transported students and knows 
of no educational disadvantage); Tr. 489, 497 (Superintendent 
Freeman: he has no educational, professional, or personal
objection to Plan III); Tr. 600 (Dr. Foster: Plan I-III
involves no educationally harmful times and distances). On 
the other hand, all of the Board's employees expressed the view

15



that the shorter the times and distances of pupil travel, the 
better the plan in terms of cost and public acceptance (Tr. 59- 
GO, 73-75, 166, 231-32, 489). Dr. Foster, however, stated that 
Plan II was objectionable because of the number of racially 
identifiable schools it would maintain, which were not only 
undesirable in themselves but which also weakened the remaining 
portions of the overall plan (Tr. 582, 585).

The District Court's Decision

On May 3, 1973 the district court issued its memorandum 
opinion approving Plan II. The opinion sets out'*the facts

o

surrounding the drawing of the plans in some detail (pp. 1-4)
18/

and describes some features of the various plans (pp. 5-12).
The court states that four factors underlie the proposal for 
less desegregation under Plan II: "time and distance traveled
on buses, cost of transportation, preservation of desegre­
gation already accomplished, and adaptability" (5/3/73 Mem. Op., 
at p. 12). The court then summarizes the proof offered by the 
school board, making essentially the following points:

18/ The opinion fails to mention that Plan II will leave over
21,000 children in the all-black schools which it does not 
affect.

16



— No maximum educationally sound travel times and 
distances were established but school administrators testified 
that shorter ones were preferable (5/3/73 Mem. Op., at p. 13);

— Longer routes reduce the number of trips each bus 
can make and increase the cost of a plan, while the school 
system's budget requests are normally cut by the city council 
(ibid.);

— Other expenditures related to desegregation are required 
at affected schools in order to smooth out the process (id. 
at 14); J

— Plan II preserves more of the Plan A student assignments 
(ibid.) ;

— Lesser degrees of desegregation are likely to receive 
greater white community acceptance (”[d]ue to the long history 
of racial discrimination in [Memphis] and its resulting racial 
hostility") (id. at 14-17).

The district court then:
"concludes that implementation of the 
secondary plan II and elementary Plan 
II with their Raleigh Addendum at the 
commencement of the 1973-74 school year 
will constitute compliance with the 
'additional instruction' set forth in 
the August 29, 1972 opinion of the Court 
of Appeals, even though the plans leave 
some all black-schools."

17



Id. at 17. The court attempts to support its decision by-
referring to passages in Swann v. Charlotte Mecklenburg Bd.
of Educ., 402 U.S. 1 (1971), and Davis v. Board of School
Commissioners of Mobile, 402 U.S. 33 (1971), which mention
"limits" of practicality and "some small number of one-race

1?/schools remaining" (id. at 17-19).

As noted above, detailed satellite zones were then 
submitted and approved by the district court on July 26, 
1973.

J

19/ The district court's opinion also discusses two other 
issues litigated in that court but which need not be con­
sidered on this appeal: plaintiffs' request for modification
of the quota provisions regarding enrollment at the Campus 
Elementary School, and the court's approval of broad student 
transfer policies devised by the school board. With respect 
to both issues, plaintiffs do not raise them on this appeal 
but will litigate them further in the district court if the 
reports to be filed by the board pursuant to the district court's 
retention of jurisdiction indicate interference with the proper 
functioning of the desegregation plan. We add only that the 
district court's approval of transfer policies so vaguely 
stated as to be virtually unintelligible (see Tr. 303-14) 
stands in marked contrast to its earlier condemnation of such 
transfer provisions because they served as a vehicle to 
perpetuate segregation. See 10/18/72. Mem. Op., at p. 6.

18



ARGUMENT

No Plan Of "Desegregation" Which Assigns
21,000 Black Students To All-Black Schools 
Can Meet The Constitutional Obligations 

Of The Memphis School Board;
A Complete Desegregation Plan With A 
Maximum Busing Time of 52 Minutes Is 
No Less Feasible And Practicable Than A 
Plan Busing Students 45 Minutes But Leaving 
25 All-Black Schools Which Enroll 21,000 

Black Children

The major issue for decision in this case is very 
simply stated: it is whether the Constitution permits the
continued operation of 25 all-black schools in Memphis, 
enrolling 21,314 black students.

This is almost ten times as many black children as 
this Court's recent decision in Goss v. Board of Educ. of 
Knoxville, No. 72-1766, -1767 (July 18, 1973), left (for 
whatever reason) in virtually all-black schools. It is many 
times more black pupils left in black schools than is the 
case under the desegregation plan approved by this Court's 
affirmance in Mapp v. Board of Educ. of Chattanooga, 477 F.2d 
851 (6th Cir. 1973) . It is five times the number of one-race 
schools left after desegregation in Nashville, a system with 
nearly twice the geographic area of Memphis (Tr. 596-97 ;

19



H.E. 36), and it places half the percentage of black students 
in all-black schools as were in such schools in Nashville 
prior to the desegregation which this Court held was there 
required by the Constitution. See Kelley v. Metropolitan 
County Bd. of Educ., 436 F.2d 856 (6th Cir. 1970), 463 F.2d 
732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972).

This is hardly "1 some small number of one-race or 
virtually one-race, schools within a district,'" Northcross 
v. Board of Educ. of Memphis, 466 F.2d 890, 893 (6th Cir.
1972), cert, denied, ____ U.S. _____ (1973), quoting with
emphasis from Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1, 26 (1971). It is hardly the elimination of
segregation "root and branch," Green v. County School Bd.,
391 U.S. 430, 438 (1968). If sustained, this plan will be 
nothing less than a lasting testament to judicial inability 
to deliver the promise of Brown v. Board of Educ., 347 U.S.
483 (1954), to black students in this nation.

The result is so shocking that the uninitiated obser­
ver must fairly leap to the assumption that the most compelling 
reasons must exist to justify it. But the patent weakness, 
and even plain illegality, of the reasons put forth by the 
district court to justify its selection of Plan II, is

20



anything but compelling. It is disheartening indeed to find 
that after years of litigation— patiently stripping away 
layer after layer of excuse— when "Never!", "Freedom Of 
Choice," "Neighborhood Schools," and "No Busing" have been 
removed as impediments to constitutional compliance, 21,000 
black students (nearly a third of all in Memphis) are told 
by the United States District Court that, out of consideration 
for the feelings and racial hostilities of the white community, 
the Constitution has no meaning for them.

The inescapable, undisputed facts are these: all of
a/

the plans at issue were drawn by Memphis school personnel,
20/

not outsiders. The longest bus ride projected for any

20/ Plaintiffs' educational witness, Dr. Gordon Foster, did 
present certain proposals to modify Plan I, but almost without 
exception these merely increased the numbers of pupils to be 
exchanged between existing attendance areas (see note 10 supra) 
in order to eliminate the pattern of racially identifiable 
schools (see, €?.£., Tr. 211) without either enlarging trans­
portation times or altering the basic structure of the plan. 
Although there was some attempt made below to characterize 
Dr. Foster's modifications as efforts to achieve "racial 
balance" (see, ê .g[., Tr. 269-70), but see, Medley v. School 
Bd. of Danville, No. 72-2373 (4th Cir., August 3, 1973 [attached 
hereto as Appendix "B"]), the district court never formally 
ruled upon the modifications. However, its opinion seems to 
describe the alternatives as being either Plan II or Plan I-III 
with plaintiffs' modifications (.e.g;. , 5/3/73 Mem. Op., at 
pp. 9-12), and we agree that if Plan II is constitutionally 
unacceptable, modifications to Plan I are required.

21



single pupil under the most comprehensive desegregation 
proposal before the district court is considerably shorter 
than rides those pupils now take daily in Nashville and 
throughout Tennessee. The direct cost of this comprehensive 
plan amounts to less than 3% of this school system's budget—  

again, a smaller percentage allocation for transportation 
than the majority of Tennessee school districts make. And yet, 
the plan approved by the district court will leave 21,314 
black children in all-black schools, some of whom will never 
be assigned to a desegregated facility throughout twelve years 
of public education (Tr. 170). j

Indeed, this case was not resolved upon the basis of
disputed facts, nor do the arguments presented here question

■ 2 1 /
the factual findings of the district court. Compare Goss

22/
v. Board of Educ. of Knoxville, supra. What is at issue
is the legal significance accorded certain facts by the 
district court. This appears clearly when the four reasons

21/ In the discussion that follows, however, plaintiffs do 
on occasion point out statements in the district court's 
opinion which are simply without support in the record.
22/ Goss is further distinguishable from this case because 
whereas there, the district court held that remaining all­
black schools were not vestiges of the dual system, 340 F. 
Supp. 711, 729 (E.D. Tenn. 1972); see this Court's slip 
opinion in Goss, supra, at p. 3, there can be no question 
that the 25 all-black schools remaining in Memphis are 
vestiges of the dual system. See Northcross, supra, 466 F.2d 
at 893.

22



given by the court for its action are assessed in light of 
constitutional standards.

1. "Adaptability." The district court readily concedes
that a major justification for adopting Plan II is

"the expected unwillingness of white 
patrons to send their children to those 
particular black schools. . . . "

(5/3/73 Mem. Op., at p. 14; see also, Tr. 500.) Although
the court completes this sentence with this phrase (implying
that something more than racial prejudice is involved):

". . . in light of the location and the 
distances involved in the necessary J 
exchange of white and black students"

•i

(id. at pp. 14-15), the court had previously described the
white community's reaction to desegregation in these terms:

"Due to the long history of racial dis­
crimination in this city and its resulting 
racial hostility, experience has shown that 
extensive preparation is necessary to 
effectively bring the students of different 
races together."

(Id. at p. 14.) And it is clearly white hostility to the 
effectuation of black students' constitutional rights about 
which the district court is talking; note the court's 
hypothesis that a system "cannot effectively desegregate 
. . . if there are not sufficient members of the white race
available to assign" (id. at p. 15) and also the court's

23



"in order toapproval of minority-to-minority transfers 
permit persons in isolated minority situations to transfer to 
a minority situation of a greater percentage" (id. at p. 24). 
Under Plan II, there are no situations in which black students 
will be in the kind of "isolated minority" to which the 
district court refers!

Furthermore, the examples used by the district court 
to demonstrate "white flight" in Memphis (id. at 16-17) 
involve contiguous schools, which make clear that the ground 
of the objection is desegregation, not time or ^istance. Cf. 
It's Not the Distance, "It's the Niggers" (NAACP Legal Defense 
and Educational Fund, Inc., 1972).

The short of the matter is that the district court is 
justifying its decision to leave 25 schools, and 21,000 
black students, segregated because of an apprehension that 
white students assigned to these schools may leave the public 
system— precisely the line of argument which was explicitly 
rejected by the Supreme Court of the United States in Monroe 
v. Board of Comm'rs of Jackson, 391 U.S. 450 (1968). To 
return to a notion we advanced above: this is not a compelling

23/

23/ Contra, Franklin v. Quitman County Bd. of Educ., 443 F.2d 
909 (5th Cir. 1971).

24



reason for the district court's action, but a plainly 
unlawful one.

But the court theorizes that despite Monroe, avoiding 
white flight is one of the practicalities whose consideration 
is mandated by Swann, 5/3/73 Mem. Op., at p. 15, at least in 
this situation where such desegregation as has occurred has 
been accompanied by some diminution in the number of white 
students, id_. at pp. 15-17. But again, this is precisely the 
argument made here and rejected by this Court in Monroe v.

24/
Board of Comm'rs of Jackson, 427 F.2d 1006 (6th Cir. 1970).

•*It is well to recall the basis of the Supreme Court's 
1968 repetition in Monroe of Brown's statement "that the 
vitality of these constitutional principles cannot be 
allowed to yield because of disagreement with them [by a 
segment of the community]." 391 U.S. at 459. This thesis 
was early enunciated in the history of school desegregation, 
when white lynch mobs in Little Rock, controllable only by 
federalized National Guardsmen, sought to prevent seven minor

24/ The Board there contended it was not bound by the 
Supreme Court's 1968 ruling because the record at that time 
contained only the prediction that whites would flee desegre­
gation, while in 1970 some white student loss had actually 
occurred. This Court brushed the argument aside.

25



Negro children from enrolling at Central High School.
Cooper v. Aaron, 358 U.S. 1 (1958). Of course, we do not
face the same situation in Memphis today; black children in
these 25 schools will be permitted to enroll in other schools

25/
if they seek majority-to-minority transfers. But neither
did the Supreme Court face exactly the Little Rock situation 
when the Board of Commissioners sought to preserve free choice 
in Jackson, Tennessee in 1968. The common point of departure 
in the cases is the damage we all suffer when the Constitution 
is eroded by making federal courts the arbiters of the selling 
price for constitutional rights. Monroe affirmed that Cooper 
meant more than just that a hostile white community was 
asking too much to assuage its feelings when it demanded that 
even token desegregation be stopped.

It is no business of the federal courts to barter 
constitutional rights among bidders. Yet that is what the 
district court in this case has done, by suggesting that 
although white hostility to desegregation would not justify 
the pre-Plan A situation in Memphis (5/3/73 Mem. Op., at p. 15), 
it could nevertheless support the maintenance of 25 segregated

25/ But see Tr. 543.
26



schools to which almost a third of all-black students 
were to be consigned (id., at p. 17).

What will be the district court's reaction next year 
if the white community "ups the ante" by demanding a 
further cutback of desegregation? More to the point, is 
this in any way a proper consideration by the district court? 
Are constitutional rights to be the subject of negotiation 
between the court and the white community? As Judge Sobeloff 
said in Brunson v. Board of Trustees, 429 F.2d 820, 827 (4th 
Cir. 1970):

J
"I, too, am dismayed that the remaining 
white pupils in the Clarendon County schools 
may well now leave. But the road to inte­
gration is served neither by covert capitu­
lation nor by overt compromise. . . . More 
to be feared than white flight in Clarendon 
County would be any judicial countenancing 
of the suggestion that abandoning or quali­
fying a desegregation program is a legally 
acceptable way to discourage flight."26/

26/ Nor is the district court's judgment supported by the 
decision in Bradley v. Milliken, No. 72-1809 (6th Cir.,
June 12, 1973). Indeed, any such attempt turns Bradley on 
its head. The Court was there concerned not with the phenomenon 
of white flight, but with the need to develop an effective 
desegregation plan in the light of the existing containment 
of blacks in a single school district. Nothing in this Court's 
1970, 1971 or 1973 opinions in that case suggests that the 
desirability of a metropolitan approach is a legal basis for 
delaying desegregation; indeed, this Court's opinion con­
templates (slip op., at p. 68) a possible interim Detroit-only 
plan.

27



As if all this were not error enough, the record in 
this case simply refutes the spectre of "not sufficient 
members of the white race available to assign" conjured up 
by the district court.

The evidence at the April hearing was that post-Plan A 
enrollments showed a loss of between 7500 and 8000 white 
students (Tr. 396). However, not all of this drop could be 
linked to Plan A: enrollments normally drop during the
school year (Tr. 541) and some of the decline is also due 
to a lowered birth rate (Tr. 552). And while there was no 
groundswell, there had been considerable community effort 
expended after Plan A was implemented (Tr. 479-80), and some 
white children had returned to the public system (Tr. 481). 
Finally, the declines in white student attendance were not 
limited to schools affected by Plan A (see H.E. 28, 29) so 
that it was not clear how many additional white children would 
withdraw if and when a more thorough desegregation program were 
implemented.

Against this background, the district court approved 
Plan II in principle on May 3, 1973. However, significant 
new evidence concerning anticipated "white flight" was put

28



before the court prior to its ruling accepting the Plan II 
satellite zones and giving Plan II its final approval.

t

When the zones were submitted to the court by the 
school board, they were accompanied by certain secondary 
grade level projections; plaintiffs subsequently took 
Dr. Stephens' deposition (on June 25, 1973) and elicited 
several exhibits, which were filed with the deposition prior 
to the district court's ultimate approval of Plan II on 
July 26, 1973 (see note 2 supra). One of these, entitled
"Estimated Student Enrollment and Estimated Number of Students 
to be Transported under Each New Desegregation Plan,", con­
tains projections of anticipated white enrollment declines
this fall upon implementation of either Plan I-III or 

27/
Plan II. Comparisons of anticipated enrollment under
Plans I-III and II, with and without application of this 
"attrition formula," for the 25 schools which Plan II will 
leave all- or virtually all-black, are set out in Appendix

27/ The methodology of the study is not fully explained (see 
Stephens' deposition of June 25, 1973, pp. 29-34) but apparently 
involved the use of multiple regression analysis techniques 
to develop predictive equations which could be applied to 
the enrollment projections available at the April hearing 
(H.E. 1, pp. 55-81), so as to develop estimates of enrollment 
on the assumption that further withdrawal of white students 
would occur.

29



C. These data reveal that, if the Board's projections
are correct, some whites may not attend these schools if 
assigned, but each school would enroll a significant number 
of white students if Plan I-III were implemented— even 
assuming a massive white withdrawal. (Each school would be 
about one-fifth to one-third white). Given the alternatives 
of placing 21,000 black students in all-black schools, or 
putting them in schools with the racial compositions shown 
in Appendix C to this Brief, the district court's preference 
for total segregation is inexplicable.

The most astounding fact of all, however, 'is demonstrated
•tby totalling the predicted white student withdrawal under 

each plan. This is shown in the table immediately following. 
(It should be kept in mind that the attrition formulas were 
applied to the pre-Plan A enrollments? i.e., the figures 
given below include student loss from Plan A as well as 
anticipated additional loss this fall). What the table

28/

28/ Exhibit 2 to Dr. Stephens' deposition of June 25, 1973 
contains figures for all schools in the system, which indi­
cate, according to the school system's projections, that white 
withdrawal would not be limited to these 25 schools but would 
occur throughout the system in reaction to desegregation.
Under these circumstances, it is difficult to understand 
what the district court hoped to achieve by leaving 25 all­
black schools. See text infra.

30



1

Total White Student Withdrawal Projected 
Under Plan II and Plan I-III, From Exhibit 
2 to Deposition of Dr. 0. Z. Stephens,
______________June 25, 1973______________

Plan I-III White Enrollment

Grade Level Projected
With

Attrition Loss
Elementary 25,638 17,186 8,452
Junior 15,562 10,972 4,590
Senior 14,945 10,570 4,375

TOTAL 56,145 38,728 17,417

Plan II White Enrollment

Projected
With

Attrition Loss
Increased 
Loss From 
Plan I-III

25,469 17,679 7, 970 662
15,439 11,091 4,348 242 i
14,916 11,105 3,811 564 rHcn

l
55,824 39,875 15,949 1,468

[ t e x t  co n tin u es  on next page]



indicates is that, because white students may leave the 
school system whether they are assigned to these 25 schools 
or not, the actual number of white children whom the Board 
predicts will withdraw if plan I-III, rather than Plan II, 
is implemented, is 1,468. In other words, the district 
court and the Memphis School Board are willing to assign
21,000 black students to all-black schools in order to 
entice 1,468 white students to remain in the system!
Forty per cent of Memphis' black elementary school pupils 
are being assigned to segregated schools in order to keep 
662 white pupils from leaving because they don'^ like 
desegregation I

We respectfully submit that, whatever the limits of 
a district court's discretion in choosing among alternative 
desegregation plans, the choice made here far exceeds them. 
If Monroe is no longer good law, and the district court’s 
action is to be judged on the basis of the facts before it, 
then this Court must reverse because discretion was badly 
abused. But we repeat that in our view, considerations of 
"white flight" should have had no place in the district 
court's consideration, and that on this ground alone, the 
district court must be reversed.

32



2. "Cost." As we noted above (pp. 13-15, supra),
the difference in transportation costs between Plan II and
Plan I-III is about 1% of Memphis' budget. And while Plan I-
III would require operating expenditures amounting to about
2.6% of the budget, this is still less than is spent for

29/
busing throughout Tennessee (H.E. 38).

The district court's discussion of cost (5/3/73 Mem.
Op., at pp. 13-14) says little more than that Plan I-III is 
more expensive than Plan II. The court fails to address 
itself to the relative size of the expenditure in the 
context of the system's total budget. Cf_. Brewer v. School

•7Bd. of Norfolk, 456 F.2d 943, 947 n. 6 (4th Cir.), cert. 
denied, 406 U.S. 933 (1972).

Whatever support the district court may have thought 
was given its decision to segregate 21,000 black students by 
financial considerations, it seems clear at this juncture 
that this cannot be allowed to bar constitutionally required 
integration. Goss v. Board of Educ., supra, slip op. at p. 4 
Bradley v. Milliken, supra, slip op. at p. 79.

29/ The school system has also been saved considerable 
capital outlay costs as the result of desegregation. See 
Tr. 408-11 (estimated at $25 million including amortization 
costs).

33



3. "Preservation of desegregation." A third basis 
for the district court's decree merited but a single 
paragraph of discussion in its opinion (5/3/73 Mem. Op., 
at p. 14). The court explains its reasoning as follows 
(ibid.) :

"With regard to the factor of preser­
vation of desegregation already accomplished, 
this Court has previously directed and 
approved the practice of preserving 
desegregated schools which have accom­
plished desegregation voluntarily. Based 
upon this same reasoning, the team 
drafted Plan II upon a basis that Plan 
A heretofore implemented would be preserved 
as much as possible. . . . "

J
Bearing in mind that on the other side of the balance are
21,000 black students still in segregated schools, one can 
examine the district court's reasoning in order to 
evaluate whether, and to what extent, a desire to preserve 
Plan A assignments, justifies that result.

Initially, we note that the analogy to the court's 
past suggestion that integrated school neighborhoods not 
be split among new assignments, if possible (12/10/71 Mem. 
Op., at pp. 19-20) is an inapposite one. Plan A obviously 
does not represent voluntary desegregation. Furthermore, 
insofar as portions of Plan A remain intact, its failings 
as well as its successes may be carried forward into the 
new scheme (see Tr. 506-19).

34



There seems little justification, at least in the
abstract, for seeking to preserve what has been recognized

30/to be an unconstitutionally limited plan.—  But even 
assuming some merit to the notion, the district court's 
attempt to tip the scales in favor of Plan II on this 
ground, distorts the realities of the situation. It was 
not merely Plan II, but all of the plans, which were drafted 
so as to preserve Plan A assignments insofar as possible 
(Tr. 49-50). And the team was hardly reticent about departing 
from Plan A: not only were junior high schools unpaired,
as the district court notes (5/3/73 Mem. Op., at*p. 14), but 
Plan A assignments were changed to reduce travel time (Tr.
52), and some Plan A schools were closed for unrelated rea­
sons (Tr. 65) .

Plan A was basically of concern at the elementary level 
only, since its junior high school assignments were changed 
and it had not been implemented in the senior high school 
grades (see Appendix A, infra, p„ 3a). The guiding criterion 
for Plan II was not maintaining Plan A assignments, but 
hewing to Plan A transportation times (Tr. 17, 53, 134). It

30/ Indeed, the whole idea is suspiciously reminiscent of the 
Board's past desire to cater to the convenience of the white 
community in rezoning. Northcross v. Board of Educ., 333 
F.2d 661 (6th Cir. 1964).

35



must be self-evident that the Memphis public schools cannot 
be effectively desegregated without transporting pupils for 
longer priods of time than was necessary in order to carry 
out contiguous pairings as part of last year's constitu­
tionally deficient plan. Thus to accept Plan II because it 
"preserves Plan A" is to build into this decree the same 
ineffectiveness which characterized the one entered in 1972.

We submit that a desire to maintain Plan A assignments 
is an interesting, hardly compelling, practical consider­
ation— but one of virtually no legal significance. If the

a!
district court had before it two plans of equal effective­
ness, both of which proposed to desegregate all Memphis 
schools, but one of which the school board supported because 
it preserved more Plan A assignments than the other, it would 
not be an abuse of discretion to adopt the board-preferred 
plan for that reason, assuming all other factors were equal. 
But that is not the case here. Indeed, the testimony was 
that if all schools had to be desegregated, no better plan 
was available than Plan I-III (Tr. 142, 237).

The district court has improperly elevated the conven­
ience of a segment of the community, Northcross v. Board of 
Educ., 333 F.2d 661 (6th Cir. 1964), above the constitutional 
rights of 21,000 black students; its judgment should be 
reversed on this ground.

36



4. "Time and distance. The final consideration
mentioned by the district court is a potentially valid one: 
the times and distances of pupil transportation required by 
the plans. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 
supra, 402 U.S., at 30-31. A properly supported, detailed 
finding that one of the plans involved times and distances 
which were educationally unsound or harmful to a child's 
health, would be entitled to some weight. Cf. Thompson v. 
School Bd. of Newport News, 465 F.2d 83 (4th Cir. 1972), cert.
denied, ___ U.S. ___ (1973). The district court in this case
made no such finding.

Quite to the contrary, the one-paragraph discussion 
of times and distances in this section of the court's opinion 
(5/3/73 Mem. Op., at p. 13) frankly recognizes that none of 
the times and distances under any of the plans were charac­
terized in the Swann language by any of the qualified witnes­
ses. The only point the district court seems to make is 
that some times involved in Plan I-III are longer than those
in Plan II— a fact which plaintiffs have never sought to 

.31/controvert.

31/ It is also a fact that some of the bus trips required 
under Plan I-III to desegregate some of the 25 schools 
left all-black under Plan II, are shorter than some Plan II 
trips.

37



As Dr. Foster pointed out, the times and distances
of pupil transportation proposed under Plan I-III are
considerably less than many bus rides now taken by pupils
under desegregation decrees presently being effectuated in
Charlotte, North Carolina, and Nashville, Tennessee, among
others (Tr. 598-99). We agree with the district court that
the desegregation plans adopted in other cities do not
define the contours of the constitutional requirements in
Memphis (Tr. 626) . On the other hand, students are not so
much weaker in Memphis than elsewhere that a bus ride which

J
is educationally and physically acceptable in other communi-

«7

ties is simply beyond their endurance 1

Taking the evidence and testimony as a whole, we think 
the district court's attachment to short bus rides is but a 
vestige of its previous attitude (312 F. Supp. 1150) that 
busing ought not be used at all to desegregate the Memphis 
schools. On this record there is no valid ground related 
to travel times and distances for preferring Plan II over 
Plan I-III.

38



Conclusion

It is unfortunate that both the Memphis school system 
and the district court have again stumbled and fallen, so 
near the end of the road to constitutional compliance. 
Plaintiffs are fully cognizant of the public pressures 
upon both the school board and the court. We acknowledge 
that after this Court's August 29, 1972 remand, the leader­
ship of the Memphis public schools for the first time in 
its history sought to encourage public acceptance of 
desegregation; and that in the past year, the district 
court has taken prompt action to effectuate and preserve 
its decrees. Nevertheless, we can in no way commend or 
condone the Board's suggestion that 21,000 black students 
must be forever segregated in the Memphis schools, nor can 
we accept the district court's ruling that this is consti­
tutionally permissible.

The judgment below should be reversed with instructions 
to complete the desegregation of all Memphis schools; this 
Court should award attorneys' fees and costs to plaintiffs 
in connection with this appeal. Northcross v. Board of 
Educ. of Memphis, ___ U.S. ___ (1973) .

- 3 g -



Respectfully submitted,

7t aast^/'L / ' / ?  S*

LOUIS R. LUCA! 
WILLIAM E. CALDWELL 
ELIJAH NOEL, JR.
Ratner, Sugarmon & 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 Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of August, 
1973, I served two copies of the foregoing Brief for 
Appellants in the above-captioned matter upon counsel of 
record for appellees, by United States mail, air mail 
special delivery postage prepaid, addressed to him as 
follows:

Ernest Kelly, Jr., Esq. 
Suite 900
Memphis Bank Building 
Memphis, Tennessee 38103

40



APPENDIX A

' History of Case Since Remand
_____of August 29, 1972_____

The following is a chronological history of the
proceedings in this case since entry of this Court's remand
opinion of August 29, 1972, 466 F.2d 890. For the prior
history of this litigation, since its commencement on March 31,
1960, we respectfully refer the Court to Appendix A to our
Brief for Cross-Appellants in No. 72-1631, filed on or about

1/June 30, 1972. */
2/

Following the Court's August 29 remand the district 
court, at plaintiffs' request, held a conference on

1/ At page 18a of that appendix it is noted that an en banc 
motion to vacate the panel's stay of June 2, 1972 was still 
pending. The motion was subsequently denied on July 5, 1972, 
with three judges dissenting, 46 3 F.2.d 32 9. Oral argument 
was heard by the panel, on an expedited basis, on July 15,
1972.
2/ Defendant Board's petition for certiorari was denied by
the Supreme Court on February 20, 1973, ____ U.S.____.
Plaintiffs' petition for certiorari from this Court's 
November 24, 1972 order denying plaintiffs costs and attorneys' 
fees on appeal was granted by the Supreme Court on June 4, 1973,
and this Court's judgment was vacated and the case remanded 
for further consideration of the costs and attorneys' fees 

U.S. ______.xssues.



September 5, 1972. The Court entered an order on September 6, 
noting that the 1972-73 school year began on August 28 and 
directing defendant Board to file a report by September 12 
indicating a proposed timetable for implementing Plan A, 
which this Court's August 29 opinion affirmed as an interim, 
though constitutionally inadequate, desegregation measure. 
(Implementation of Plan A had been stayed by this Court, 
pending appeal.) Defendant Board was also directed to file 
a report setting forth any changes in the previous plan of 
operation which defendants had implemented withopt court 
approval. In its September order, the Court further deferred 
action on that part of this Court's remand directing preparation 
of "a definite timetable providing for the establishment of 
a fully unitary school system in the minimum time required 
to devise and implement the necessary desegregation plan."

On September 12 the Board filed a motion/report stating
that Plan A could be implemented by November 17, but requesting
that implementation be delayed pending disposition of its
application for certiorari to the Supreme Court, or until «
the second semester for elementary grades and until Fall,
1973 for secondary grades. Following a conference on 
September 13, the district court entered an order on 
September 14 holding that defendants should not be required

2a



to implement Plan A prior to November 27 because, since 
"Plan A was delayed by the stay [entered by this Court] for 
a period of 88 days," the Board "should be allowed 88 days 
from the dissolution of the stay to make all preparations 
for implementation." The court directed preliminary pre­
parations to begin immediately, but set a hearing on 
defendants' request that implementation be further delayed.
The court also denied defendants' motion to defer desegre­
gation pursuant to § 803, Education Amendments of 1972. (This 
Court denied a similar stay request on September 21, 1972,
and the Supreme Court denied a stay on October 16, 1972.)

*»
The district court held an evidentiary hearing on 

September 22, 1972 and entered a memorandum decision on 
September 26 (with judgment on September 28) holding that 
implementation of Plan A should be deferred until the second 
semester (January, 1973), with the exception that the two 
Plan A senior high pairings (Geeter/Fairley and Manassas/

3/
Frayser) were deferred until the 1973-74 school year. The

3/ Plaintiffs noticed an appeal from the decision to defer 
the high school portion of Plan A until 1973-74, and moved in 
this Court on or about September 29, 1972 for Carter relief 
(Carter v. West Feliciana Parish School Board, 396 U.S. 226 
(1969)) pending appeal and for an expedited appeal. On 
October 19 this Court entered an order (Misc. No. 72-8077) 
denying injunctive relief pending appeal but purportedly 
granting an expedited appeal by directing the Clerk to 
"schedule hearings for the December term." Oral argument was

3a -



I
court also disallowed certain previously implemented modifi­
cations (a vague ’’stability1' transfer provision and
resurrection of the "pockets-and-coves" policy) which had not 
received (or been submitted for) court approval and which 
were found to be "in furtherance of protecting white majorities 
and certain white patrons."

I

On October 18, following a conference on October 17, 
the court entered an order disposing of requests for various 
modifications of Plan A and setting a hearing for October 27 
to determine the manner of compliance with this Court's 
mandate (the "additional instruction") for a desegregation 
timetable.

On November 1 the court entered a memorandum decision 
(with implementing order on November 8) pertaining to Campus 
elementary school (operated jointly by defendant Board and 
Memphis State University), providing, pursuant to defendants'

3/ (cont.)
subsequently scheduled for December 13. Prior to oral 
argument, plaintiffs moved to dismiss the appeal because of 
the nearness of the second semester and because "the failure 
of this Court to grant Carter relief. . . seriously affects 
the probabilities of now obtaining the relief sought. . . ." 
By order entered December 14, 1972 (No. 72-2053), the appeal 
was dismissed.

4 a



motion, that Campus should not be closed as provided by Plan A. 
but could be operated as a non-zoned school with a 50/50 
(plus or minus 10%) racial ratio. The Dean of Memphis 
State's College of Education was added as a party defendant.

On November 15, 1972, the court entered a memorandum
decision directing defendant Board to prepare a pupil locator
map for use in further desegregation planning and to commence
the planning process, with periodic reports to be made to the%
court. The court's schedule envisioned that a complete plan
would be implemented at the start of the 1973-74 school year

J
The court denied a motion by plaintiffs for additional

•3

elementary school desegregation for the second semester.
On December 14, 1972, the district court entered a 

memorandum decision (incorporated in an order entered 
February 26, 1973) disposing of various pending motions.
(1) The court granted a request of plaintiffs that areas 
of Shelby County, particularly the Raleigh area, which would 
come within the Board's jurisdiction for 1973-74 via civil 
annexation by the City of Memphis, should be included in the 
desegregation planning. (2) The court, on plaintiffs' motion, 
amended the Campus school order to require periodic reports 
to the court, but denied other requested amendments, including 
one which would change the required racial ratio from 50/50 to

5a -



60% black/40% white to comport with the system-wide elementary 
grade level ratio. (3) The court denied a motion by plain­
tiffs to substitute a white school (Sherwood) for a desegre­
gated school (Messick) in the Plan A pairing with a black 
school (Hanley), although the court found "considerable merit" 
to this proposal; at the Board's request, however, the court
modified Plan A by leaving Hanley unaffected (and segregated)»
for the second semester. (4) The court granted a motion by 
defendants to change the Plan A assignment of predominantly 
white Maury School (closed) students to all-black Carnes 
elementary, and instead divided the Maury studen'ts between 
two formerly white school zones (Snowden/Vollentine and Bruce) 
with substantial white enrollments, because "the desegregation 
effect on Carnes school would be de minimus." The court held 
that "[o]ther efforts will be necessary to make a significant

4/
change in the desegregation of Carnes school." (5) The
court granted plaintiffs’ motion to pair, commencing with the 
second semester, all-black White's Chapel elementary school 
with predominantly white Coro Lake school, primarily because 
of the finding "that under the present assignment system the

4/ Plan II, approved by the district court in the order 
appealed from, leaves Carnes 98% black.

6a



less adequate facilities and overcrowded facilities are being 
maintained for a black school whereas the predominantly white

5/school is under capacity." (6) The court denied defendants’
request for permission to pursue four site acquisition/ 
construction proposals.

On January 16, 1973 defendant Board filed a third-party
t

complaint against the City of Memphis, its Mayor and Directors 
of Public Service and Police, seeking injunctive relief against 
the threatened interposition, by these defendants, of a 1935 
City Ordinance (§ 42-15, requiring "certificateg/of public 
convenience and necessity" by those operating transportation 
vehicles "for compensation") in an effort to interdict

5/ Thereafter, on January 16, 1973, white Coro Lake students 
and their parents filed a motion to intervene for the purpose 
of opposing the White's Chapel/Coro Lake pairing. At the 
same time the attorney for the proposed white intervenors 
appeared before the Board of Education and persuaded a majority 
of its members to seek a change in the proposed pairing. 
Accordingly, on January 17 the Board filed a motion seeking to 
have the black students in the small Weaver school zone (to 
be closed on January 24 pursuant to Plan A) transported to 
Coro Lake in lieu of the pairing with White’s Chapel, which 
was to be left all-black for at least the second semester.
The court held a hearing on January 19 and ruled at the 
conclusion thereof (order entered February 26) that Plan A 
would be modified in accordance with defendant Board's request; 
White's Chapel remained unaffected by Plan A for the remainder 
of the school year.

7a



implementation of Plan A scheduled for January 24, 1973. 
(Plaintiffs subsequently filed a motion joining in the Board's 
request for relief.) The court entered a show cause order 
on an application for preliminary injunction, and a hearing 
was held on January 18. The court ruled at the conclusion 
of that hearing that the ordinance was not applicable to 
school transportation by the Board, and its attempted appli­
cation was an unconstitutional "anti-busing" effort on the 
part of the City defendants. An appropriate injunction was
entered on January 19, 1973 and this Court denied the City's

Japplication for summary reversal or for a stay on January 23, 
1973 (Misc. No. 73-8021). Plan A, as modified, went into 
effect on January 24.

On February 1, 1973 the court entered an order requiring 
the Board to adopt a plan for further desegregation by February 
22 (subsequently extended to March 5 by order of February 15 
and until March 12 by informal agreement). On March 12, 1973 
defendant Board filed alternate plans of desegregation (three 
elementary and two secondary), stating its preference for 
Plan II (elementary and secondary). By order of March 16 
(following a conference on March 15) the court directed the 
Board to file maps illustrating the various plans filed, but 
not designating the specific satellite zones (at the secondary

8a



level) which could be later devised from the pupil locator 
data. The court set a briefing timetable and scheduled a 
hearing on the plans for April 18, 1973.

On April 3, 1973 an order was entered, on plaintiffs'
motion of February 16, joining the Shelby County Board of
Education and its Superintendent as parties defendant to
this action for the limited purpose of considering joint
action between the City and County Boards for desegregation
of the Raleigh area (annexed to the City on December 31,

6/1972).
J

6/ Plaintiffs' February 16 motion to join the County Board 
was prompted by difficulties which had arisen in the Raleigh 
area annexation: although the entire Raleigh area was
scheduled for annexation by the City of Memphis on December 31, 
1972, the northern one-third of the area was not annexed on 
that date because of litigation initiated in the Shelby 
County Chancery Court by residents who sought to avoid the 
annexation. The result of this delay was that although most 
of the pupils residing in the Raleigh area came with the 
jurisdiction of the City Board, most of the school capacity 
remained in the County. Following the County Board's joinder 
(as reflected in the court’s May 3 memorandum decision), an 
agreement was entered into between the City and County Boards 
which, inter alia, allowed the Memphis Board to operate a 
school (Brownsville) which remained in the County. Recently 
the Chancery Court has ruled that the northern part of the 
Raleigh area must be annexed by the City; if this decision 
stands in the state courts, the plan approved by the district 
court will have to be appropriately modified.

9a



On April 10, 1973, following an evidentiary hearing on 
April 5, the court entered a memorandum decision in this case 
and a removed action (C.A. No. 73-90) pertaining to requests 
for relief by plaintiffs and the Board against the City of 
Memphis, acting through its Mayor and Comptroller and the 
members of its Legislative Council. The court held that the 
City had unconstitutionally withheld from the Board $250,000 
(the amount of the Board's busing contract for the spring 
semester) of previously authorized funds for discriminatory

J

7/ It was learned at the January 18 hearing that the City, 
in accordance with a City Council resolution, had withheld 
from the Board funds designated for its use. Plaintiffs filed 
a motion on January 26 to add as parties defendant the City's 
Comptroller, its City Council and the members thereof (the 
City and its Mayor were already parties by virtue of the 
Board's third party complaint of January 16), and for injunc­
tive relief to require the City defendants to pay over the 
withheld funds and to prevent them from further undermining 
the Board's budget. On February 7 the Board filed a motion 
substantially joining in plaintiffs' motion, and the City 
defendants filed a response in opposition. On February 9 the 
City of Memphis filed in the Shelby County Chancery Court 
a complaint for declaratory judgment against the School Board 
seeking, inter alia, a judgment declaring certain anti-busing 
ordinances to be valid and requiring the Board to make 
separate budget requests for busing. The Board removed the 
Chancery Court action to federal court; the case was docketed 
as C.A. No. 73-90. The City filed a motion to remand on 
March 9. The cases were consolidated for hearing on April 5.

10a



and retaliatory purposes, based upon the unconstitutional
application of two City anti-busing ordinances. (Accordingly,
on April 19, 1973 an order adding parties and a preliminary
injunction was issued in this cause, and a judgment was

8/
entered in C.A. No. C-73-90 (the removed action).)

Beginning on April 18, the court conducted a three-day
hearing pertaining to the plans submitted. On May 3 the
court entered a memorandum decision (with judgment on May 17)
approving the plan (Plan II) preferred by the Board and
designating it "Plan Z." Plaintiffs noticed their appeal

Jon May 21.

On or about May 23, plaintiffs moved this Court for an 
expedited appeal in the hope of obtaining appellate review in 
time for additional relief for the 1973-74 school year. 
Although defendant Board had no opposition, this Court's 
June 14 order granting an expedited appeal directed the 
setting of the case for argument during the October term.
(A motion for reconsideration en banc, filed on June 20, was 
denied by order of July 18.)

8/ On May 2, 1973 the City defendants noticed an appeal 
from the April 19 orders and judgment. Although the record 
on that apical has not yet been completed, the appeal was 
docketed in this Court on June 28 (No. 73-1666) along with the 
present appeal by plaintiffs (No. 73-1667).

11a



On May 24, 1973 defendant Board filed a Report to the 
Court submitting the boundaries of the secondary satellite 
zones drawn with pupil locator data for the plan approved

9/by the court's May 3 decision.

On July 11 the Board filed a petition for relief against 
the City defendants, Exxon Corporation, Inc. (which has a 
gasoline contract with the City), the Secretary of the U.S. 
Department of the Interior and the Director of that Depart­
ment's Office of Oil and Gas, asserting the Board's inability 
to obtain sufficient amounts of gasoline for the school bus 
operations required for the 1973-74 year. This petition was
heard pursuant to an order to show cause by Chief Judge

10/
Bailey Brown on July 20, 1973, at the conclusion of which
the federal parties and Exxon were dismissed (order entered

9/ Plaintiffs, in order to understand the zoning process, 
took a deposition from Dr. O.Z. Stephens, which, by agreement, 
was introduced into evidence, along with three exhibits thereto 
On July 2 plaintiffs filed objections to some of the zones 
which accomplished less desegregation than projected by the 
plan approved in the May 3 decision.
10/ By letter of July 12 to counsel for all parties, Judge 
McRae advised that his wife owned 34 shares of Exxon common 
stock and that he would, pursuant to Code of Judicial Conduct 
Canons 3C and 3D, recuse himself from proceedings involving 
Exxon unless all parties agreed in writing by July 17 "that 
his relationship is immaterial or that his financial interest 
is insubstantial." On July 17 the City defendants filed a 
letter with the Clerk requesting Judge McRae to recuse himself. 
By order of the same day Judge McRae entered an order trans­
ferring the hearing and disposition of the gasoline issues to 
Judge Brown.

12 a



July 26) and the remaining issues were transferred bach to 

Judge McRae for determination.

On July 26 Judge McRae issued a memorandum decision 
and implementing judgment directing the City to share its 
gasoline with the Board and directing the Board and the City 
to cooperate in efforts to obtain additional gasoline and 

alternate sources.

Also on July 26, the court entered an order approving 
the Plan Z satellite zone boundaries (as submitted by the
Board on May 24), overruling plaintiffs' objections thereto,

«•#
directing the Board to maintain the pupil locator map for
future evaluation of the plan's effectiveness, and directing

11/
supplementation of the record in this Court.

1 1 / it should also be noted that, in addition to the history 
outlined above, Citizens Against Busing, Inc. and individual 
white children and their parents filed a complaint on 
September 26, 1972 (docheted as C.A. No. 72—333) against 
defendant Board and its members, the Governor, Attorney General 
and Education Commissioner of Tennessee, and the Secretary of HEW, 
Attorney General and local U.S. Attorney of the United States.
The primary thrust of the complaint was to seeh the convening of 
a three—judge court to enjoin implementation of Plan A. Other 
requested relief pertained to state and federal statutes having 
to do with school busing and funds therefor. Defendant Board 
filed an answer agreeing with the anti-busing thrust of the 
complaint, and the State defendants filed a motion to dismiss.
On October 27, 1972, plaintiffs herein filed a motion to consoli­
date the CAB action with this case and/or to have the CAB complain 
treated as a motion to intervene herein. On January 9, 1973^ 
District Judge Wellford (to whom the CAB complaint was assigned) 
entered an order of conslidation and directed that the CAB com­
plaint be treated as a motion to intervene in this case. On

13a



11/ (cont.)

January 16 Judge Wellford entered an order dismissing the 
State defendants, and a "motion for new trial" as to the 
State defendants was denied by Judge Wellford on May 18, 1973. 
Judge McRae presently has under consideration motions by 
other parties to dismiss or to deny intervention.

14a



UNITED STATES GOURT OF APPEALS
FOR THE FOURTH CiRUUIT

No. 72-2373

CHARLES L. MEDLEY, an infant, by 
Grade Medley Hairston and LeRoy 
Hairston, his mother and step­
father and next friends, et al, Appellants,

versus

THE SCHOOL BOARD OF THE CITY OF J
DANVILLE, VIRGINIA, et al, Appellees.

No. 72-2374

CHARLES L. MEDLEY, an infant, by 
Gracie Medley Hairston and LeRoy 
Hairston, his mother and step­
father and next friends, et al, Appellees,

versus

THE SCHOOL BOARD OF THE CITY OF 
DANVILLE, VIRGINIA, et al, Appellants



A p p e a l s  from the United States District Court for the 
W e s t e r n  District of Virginia, at Danville. H. E. 
Widener, Jr., District Judge.

Argued: March 5, 1973 Decided: August 3, 1973

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN 
B U T Z N E R , RUSSELL and FIELD, Circuit Judges, sitting 
en b a n c .

S. W. Tucker (Henry L. Marsh, III; Hill, Tucker, and 
, J. L. Williams; Charles M. L. Mangum;^ Jack 

Greenberg; James M. N a b r i t , III, and Norman Chachkin 
on brief) for Appellants in No. 72-2373 and for 
A p pellees in No. 72-2374; G. Kenneth Miller (May, 
Garrett, Miller and Parsons; Earle Garrett, Jr.;' 
Earle Garrett, III; and Garrett, Garrett and Smith 
on brief) for Appellees in No. 72-2373 and for A p p e l ­
lants in No. 72-2374.

-la-



FIELD, Circuit Judge:

This action was instituted following a direction 
from the Department of Health, Education and Welfare 
[HEW] to the Danville Virginia School Board that it 
review its policy of pupil assignment in the light of 
Swann v . Charlotte-Meclclenburg Board of Education,
402 U. S. 1 (1971). In the absence of a definitive 

proposal by the school board for 1972-73 the District 

Court for the Western District of Virginia devised 

a plan of desegregation which reflected to*;a large 

degree the geographical setting of the City which is 

divided by the Dan River into areas lying north and 

south thereof.

The plaintiffs who represent black school child­
ren seek to alter or amend the judgment of the District 
Court, specifically requesting that the Court require 
the school board to propose a plan which will produce 
a unitary system or, in the alternative, authorize the 
plaintiffs to employ a consultant at school board

2.



expense to prepare such a plan. In its cross-appeal 

the school board asserts that there was insufficient 

evidence to support a finding that it had failed to 

dismantle its previously segregated system. We find 

the position of the school board to be untenable and 

remand for further p r o c e e d i n g s .

The history of the Danville school system su p ­

ports the finding of the District Court that a further 

dismantling thereof was required. Althougl/the school 

board stated in 1964 that six of the seventeen schools 

were integrated, the record indicates that as of that 

date only twenty-one blacks had transferred to formerly 

all-white schools, and that the schools in Danville were 

virtually all-black or all-white. In its May 18, 1965, 

Statement of Policies and Plan for Compliance with Title 

VI of the Civil Rights Act of 1964, the school board 

adopted a freedom of choice plan which was similar to 

that delineated by the Fifth Circuit in United States v. 

Jefferson County Board of E d u c a t i o n . 372 F. 2d 836,

897 (5 Cir. 1966).

3.



Thereafter, in 1969, the school board geograph-
*

ically zoned five elementary schools and expanded 

faculty integration. Under this plan which met with 

the approval of HEW thirteen of eighteen schools were 

integrated w i t h  seventeen per cent of the black student 

population attending integrated schools. The following 

year, 1970-71, the school board adopted a plan which 

had as its stated objective that no student would 

attend an a l l -black or all-white school. This plan
/if

created one hi g h  school to be attended by all students 

in Danville, one junior high school for students liv­

ing on the n o r t h  side of the Dan River and two g e o ­

graphically zoned junior high schools on the south 

side. Ele m e n t a r y  schools which had not been zoned in 

the previous year were either zoned or paired and one 

all-black elementary school was closed. Under the 

1970-71 plan four of the elementary schools had a 

black enrollment of eight per cent or less. On the 

other hand, four south side elementary schools had 

black enrollments ranging from seventy-four per cent 

to eighty per cent.

4 .



The 1970-71 plan was also approved by HEW but, 

as heretofore stated, in July 1971 the Department 

advised the school board to review its policy pursuant 

to Swann (402 U. S. 1). The school board responded 

by rezoning the attendance area of one elementary 

school and HEW refused to approve the plan with only 

this one alteration. It appears that the school board 

has obtained no further suggestions or directives from 

HEW.
J

•7 The plan which was devised by the District Court 

without the benefit of substantial guidelines from 

either the school board or the plaintiffs redrew school 

attendance zones for grades one through four; ordered 

busing for students on the respective sides of Dan 

River to two fifth and sixth grade centers; and changed 

the feeder schools for the three junior high schools. 

Aside from the high school, the District Court's plan 

did not provide for any attendance zone which embraced 

students living on both sides of the river. The District 

Court appears to have concluded that such attendance

5.



zones would be impracticable since they would require 

the students to travel in a highly congested and 

hazardous corridor created by the river and highway 

during a time of prime usage by mills and other b u s i ­

nesses. Incident to this conclusion it should be noted 

that the school board does not own or operate a busing 

system.

Under the Court's plan no child in Danville will 

attend a school located on the side of the river op p o ­

site his home until he enters the high school in the 

tenth grade. As a result forty-two per cent (734) of 

the city's 1754 black elementary school children will 

be enrolled in two schools with black enrollments of 

eighty-nine per cent and ninety-one per cent, r e s p e c t ­

ively. Additionally, eleven per cent (210) of the black 

elementary school population will attend five schools 

wi t h  black enrollments of fourteen per cent or less. 

Counsel for the school board suggest that the plaintiffs' 

reliance upon the foregoing statistics in their c h a l ­

lenge of the plan is, in effect, an insistence that



each school should mirror the racial composition of 

the entire system.

On the record in this case we do not find this 

characterization of the plaintiffs' position to be a 

valid one. While the Supreme Court stated in Swann 

that "[t]he constitutional command to desegregate 

schools does not mean that every school in every c o m ­

munity must always reflect the racial composition of 

the school system as a whole," (402 U. S. at 24) 

the Court made the further observation that

"Where the school authority's proposed plan 
for conversion from a dual to a unitary s y s ­
tem contemplates the continued existence of 
some schools that are all or predominately 
of one race, they have the burden of showing 
that such school assignments are genuinely 
n o n d i s c r i m i n a t o r y . The court should scrut­
inize such schools, and the burden upon the 
school authorities will be to satisfy the 
court that their racial composition is not 
the result of present or past discriminatory 
action on their part." (402 U.S. at 26).

Reacting to S w a n n , this court in Adams v.School 

District Number 5, Orangeburg Co., S . C ., 444 F. 2d 99, 

101, noted:

7.



"Wherever schools are 'all or predominately 
of one race in a district of mixed p o p u l a ­
tion [there will be requiredj close scrutiny 
to determine that school assignments are not 
part of state-enforced s e g r e gation.’ S w a n n , 
supra, at 25 . . .  . Although the existence
of 'some small number of one-race, or v i r t u ­
ally one-race, schools within a district is 
not in and of itself the mark of a system 
which still practices segregation by law,' 
S w a n n , s u p r a , at 26. . ., both the school
authority and the district judge must n e v e r ­
theless be concerned with the elimination of 
one-race schools."

In the light of the history of state-enforced
a/

segregation in the Danville s c h o o l s , the marked residual 

disparity in the racial balance of the schools under the 

plan of the District Court strongly suggests that the 

plan is ineffective to attain an acceptable degree of 

realistic desegregation.

The nub of the problem in the Danville system is, 

of course, the Dan River just as Interstate 65 was the 

divisive factor confronting the Court in Davis v. School 

C omm'rs of M o b i le C o u n t y , 402 U. S. 33 (1971). There, 

the interstate highway divided the metropolitan area of 

Mobile into definitive eastern and western sections.

8.



The schools in the eastern section were sixty-five per 

cent black and thirty-five per cent white while the 

we s t e r n  section had an enrollment which was twelve per 

cent black and eighty-eight per cent white. The e l e ­

me n t a r y  school plan approved by the Court of Appeals 

d i d  not provide lbr any combination of the schools on 

the eastern side with the predominately white schools 

of the western section with the result that sixty-four

per cent of all of the black elementary children attended
J

nine schools on the east side which were more than
*7

ninety per cent black. In remanding the case for the

development of a decree "that promises realistically to
1

work, and promises realistically to work now," the 

Court stated:

"Like the District Court's plan, the Court of 
Appeals' plan was based on treating the western 
section in isolation from the eastern. There 
were unified geographic zones, and no transpor­
tation of students for purposes of desegregation.
* * * Having once found a violation, the district 
judge or school authorities should make every

Green v. County School Board, 391 U. S>. 430, 439 
(1968) .

9.



effort to achieve the greatest possible degree 
of actual desegregation, taking into account 
the practicalities of the situation. A  d i s ­
trict court may and should consider the use of 
all available techniques including restructur­
ing of attendance zones and both contiguous 
and noncontiguous attendance zones. See S w a n n , 
s u p r a , at 22-31. The measure of any de s e g r e ­
gation plan is its effectiveness.

"On the record before us, it is clear that 
the Court of Appeals felt constrained to treat 
the eastern part of metropolitan Mobile in 
isolation from the rest of the school system, 
and that inadequate consideration was given to 
the possible use of bus transportation and 
split zoning." (402 U. S. 33 at 36,37,38).

J

The situation in Danville is strikingly parallel 

to D a v i s . There are seven elementary schools on the 

no r t h  side of the river with a student population which 

is eighty-seven per cent white and thirteen per cent 

black. There are also seven elementary schools on the 

south side of the river with an enrollment which is 

fifty-four per cent white and forty-six per cent black. 

The over-all population of elementary students in the 

s y s t e m  is sixty-nine per cent white and thirty-one per 

cent black. In the light of these statistics we are 

of the opinion that the District Court fell into the

10.



same error as the lower court in Davis in formulating 
a plan which treated the two sections of the city in 
isolation one from the other and which resulted in a 
number of schools which are racially identifiable when 
measured by any reasonable gauge. It appears that the 
District Court recognized this fact when he stated in 
his opinion that under the plan the fifth and sixth 
grades as well as the junior high schools would "reflect 
the black-white ratios of students on each side of the

•  i  I  a /r i v e r .
*»

It is clear that the District Court felt that 

the circumstances prevailing in Danville warranted the 

retention of neighborhood elementary schools on each 

side of the river. In Thompson v. School Board of City 

of Newport News, V a ., 465 F. 2d 83 (4 Cir. 1972), we 

recognized that under proper circumstances the as s i g n ­

ment of the primary grades to neighborhood schools is 

not per sc unacceptable, but we emphasized that such 

assignments must rest upon specific findings which 

demonstrate that no other plan affording greater inte-

11.



gration is practicable. The record in the present case 

reveals no problem with respect to either the time or 

distance of travel incident to the utilization of n o n ­

contiguous attendance zones embracing elementary s t u ­

dents on both sides of the river. Illustrative of this 

fact, the record indicates that the distance between 

W o odberry Hills Elementary School on the north side 

and Westmoreland and Berkeley schools on the south is 

a m inimal one mile, and three of the city's five 

bridges lie within these attendance z o n e s . Under the 

Court's plan, however, Woodberry Hills would have a 

student population that is eighty-eight per cent white 

while Berkeley and Westmoreland would have black e n ­

rollments of eighty-nine and ninety-one per cent, 

r e s p e c t i v e l y .

It wo u l d  seem that the primary emphasis of the 

District Court's conclusion of impracticability rests 

upon the assumption that the elementary children would 

be required to walk across the bridges which concededly 

are inadequate for pedestrian traffic. We think that in

12.



reaching this conclusion the District Court failed to 

fully consider and develop the possibility of trans­

portation for these children. Again adverting to 

Davis, we feel that the Court failed to give appropriate 

consideration to the "possible use of bus transporta­

tion and split zoning " to solve the geographical 

problem which confronted it. The school board s 

present ^ack of transportation facilities is not c o n ­

trolling. If reassignment is constitutionally mandated 

the district court's equity power includes the author­

ity to require transportation when it is necessary 

to disestablish a dual school system. See Brewer v. 

School Board of City of N orfolk, V i r g i n i a , 456 F. 2d 

943, 947 (4 Cir. 1972).

Following the Swann and Davis decisions, in 
Adams we remanded several cases to the respective 
district courts with the admonition that "[t]he school 
authorities and the district court should consider the 
use of all techniques for desegregation, including 
pairing or grouping of schools, noncontiguous attendance

13.



zones, restructuring of grade levels, and the trans­

portation of pupils." (444 F. 2d at 101). Our review 

of the record indicates that similar action is ap p r o ­

priate in the present case. To that end, we remand the 

case to the District Court with the following instruc­

tions: (1) The school board shall submit to the

District Court a plan for the elementary and junior 

high schools which will effectuate the mandates of 

Swann and Davis, giving full consideration to the
a/

techniques set forth in A d a m s ; (2) the District Court

may direct the school board to consider the services 

of an expert or the office of HEW to assist it in 

drafting an acceptable plan; (3) the District Court 

shall conduct a hearing to determine the effectiveness 

of the proposed plan and may hear objections or p r o ­

posed amendments prior to his approval thereof;

(4) if the District Court should find that the plan of 

the school board does not fully implement Swann and 

Davis, he may use a consultant to develop a plan and 

assess the consultant's reasonable fee against the

school board.

14.



The plaintiffs have requested attorneys' fees 

and upon the remand the District Court shall make a 

reasonable allowance for such fees pursuant to Section 

718 of the Emergency School Aid Act of 1972 for services 

rendered herein subsequent to June 30, 1972. Northcross 

v. Memphis Board of E d u c a t i o n , 41 U. S. L. W. 3635 (U. S. 

June 4, 1973); Scott v. Winston-Salem/Forsyth County 

B o ard of E d u c a t i o n , No. 72-2162 (4 Cir. April 30, 1973); 

Shepard v. Fayetteville City Board of E d u c a t i o n ,

No. 2278 (4 Cir. April 30, 1973).

REMANDED WITH DIRECTIONS.

15.



WINTER, Circuit Judge, concurring and dissenting:

I concur in the judgment and opinion of the court 
except with respect to the allowance of counsel fees.
I adhere to the view I expressed in Bradley v. Richmond 
School Board, 472 F.2d 318 (4 Cir. 1971), cert, granted, 

U.S. (June 12, 1973), and I would direct an
allowance for all services rendered since July 30, 1971, 
the date on which the current phase of the litigation 
was begun.

16.



APPENDIX C

COMPARISON OF ENROLLMENT PROJECTIONS AT ALL-BLACK OR 
VIRTUALLY ALL-BLACK SCHOOLS REMAINING UNDER PLAN AP­
PROVED BY DISTRICT5 COURT AND UNDER PLAN SUPPORTED BY 
PLAINTIFFS, WITH AND WITHOUT ATTRITION FORMULA APPLIED*

% White as Projected 
At Trial (Without 
Attrition Formula)

% White as Projected 
After Trial (With 
Attrition Formula)

School Plan II [Z] 
(Sonnenburg)

Plan III 
(Smith)

Plan II [Z] 
(Sonnenburq)

Plan III 
(Smith)

Alton 0.0% 47% 0.0% 30%
Caldwell 0.0% 34% 0.0% 17%
Carnes 2.0% 43% 2.0% 23%
Cummings 0.0% 35% 0.0% 21%
Florida 0.0% 43% 0.0% 30%
Georgia Avenue 0.2% : 32% 0.0% 21%
A ,B. Hill 0.4% 46% 0.4% 30%
Kansas 0.7% 3 9% 0.7% 26%



% White as 
At Trial 

Attrition
Projected
(Without
Formula)

% White as Projected 
After Trial (With 
Attrition Formula)

School Plan II [Z] Plan III 
(Sonnenburg) (Smith)

Plan II [Z] 
(Sonnenburg)

Plan III 
(Smith)

LaRose 0.0% 35% 0.0% 21%
Lauderdale 0.0% 36% 0.0% 2 5%
Leath 0.0% 36% 0.0% 2 5%
Lincoln 0.0% 30% 0.0% 21%
Locke 0.0% 33% 0.0% 2 3%
Longview 0.5% 40% 0.5% 26%
Mallory 7.0% 48% 7.0% 38%
Orleans 0.0% 33% 0.0% 31%
Riverview 0.0% 47% 0.0% 31%
Stafford 0.0% 31% 0.0% 25%
White's Chapel 0.0% f 47% 0.0% 22%

m  *



%  White as 
At Trial 

Attrition

Projected
(Without
Formula)

%  White as Projected 
After Trial (With 
Attrition Formula)

School Plan II [Z] 
rSecondarvl

Plan I** 
rSecondarvl

Plan II [Z] 
f Secondarvl

Plan I * *  

i Secondarvl

Lincoln 0.0% 30% 0.0% 17%

Porter 0.0% 34% 0.0% 19%

Riverview 0.0% 30% V
OQ>O
•

o 17%

Vance 0.0% 31% 0.0% 17%

Carver 0.0% 30% 0.0% 17%

Booker T. Washington 0.0% 32% 0.0% 18%

*Source: Exhibit 2 to Deposition of Dr. O.Z. Stephens of June 25, 1973, filed and
made a part of the record herein and before the district court at the time 
of its order of July 26, 1973, approving satellite zones drawn to implement 
Plan Z.

**Without plaintiffs' proposed modifications to Plan I secondary, which would have 
increased the level of desegregation projected at these schools.

Note: The tables at pp. 32-49 of the exhibit to Dr. Stephens’ deposition
contained projections for Plan Z (Sonnenburg) and Plan III (Smith) 
without reference to the subsequent modifications of those plans by

m



the proposed "Raleigh Addendum" to each plan. The district court 
adopted the board's proposed "Raleigh Addendum" to Plan II Elementary 
(Plan Z) [H.E. 1, pp. 37-40]; plaintiffs had generally supported a 
"Raleigh Addendum" to Plan III (Smith) Elementary [H.E. 1 - A ] . Schools 
whose projections as grven in the exhibit to Dr. Stephens' deposition 
would have been significantly changed b y  the Raleigh addenda are 
therefore omitted from this table:

1. Hyde Park Elementary, projected all-black under 
Plan II (Sonnenburg), is closed under the Raleigh 
addendum adopted by the district court.

2. Douglas, Hollywood, and Hyde Park Elementary Schools, 
each of which was deliberately left unaffected b y  
Plan III (Smith) Elementary for subsequent use with 
schools in the Raleigh annexed area, would each have 
been desegregated under the "Raleigh Addendum" 
supported b y  the plaintiffs [H.E. 1- A ] . Attrition 
formulas were not applied to these projections b y  
Dr. Stephens, however. See Stephens Deposition at
p. 36.