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

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

NOS. 73-1667, -1954

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

vs.
T IE BOARD OF EDUCATIO OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Appellees.

Appeal from the united States District Court 
for the Western District of Tennessee 

Western Division

REPLY BRIEF FOR APPELLANTS

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

525 Coirui.erce Title Building 
Memphis, Tennessee 38103

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. ( ACHKIN 10 Columbus Circle 

New York, H- w York 10019
Attorneys for Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

1/NOS. 73-1667, -1954

DEBORAH A. NORTI1CROSS, et al..
Plaintiffs-Appellants,

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

Defendants-Appellees.

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

Western Division

REPLY BRIEF FOR APPELLANTS

We address, in this Reply Brief, what we read to he 
the major thrust of the Memphis school board's written 
presentation to the Court: a calculated yet subtle effort to

The appeal in No. 73-1667 is taken from the district 
court's May 17, 1973 order approving "Plan II" in principle
subject to the submission and acceptance of detailed satellite 
zone descriptions. See Brief for Appellants, p. 7, n. 7.
When the main briefs were prepared, the district court's July 
26, 1973 order approving the board-drawn satellite zones had 
been entered, and the briefs of both parties make reference to 
that order and to the material submitted to the district court 
between May 17 and July 26. Plaintiffs noticed an appeal from 
the July 26 order to protect the record, and that appeal has



portray this matter as an unimportant dispute, tangential to 
the main business of desegregating the Memphis school system 
(which the board would congratulate itself for having accom­
plished under court order), and which is easily to be resolved 
by an unquestioning reliance upon the district court's judgment

2/

\J cont'd
now been docketed as No. 73-1954; by stipulation of the 
parties and the order of this Court entered August 20, 1973, 
the appeals in Nos. 73-1667 and 73-1954 have been consolidated, 
and no independent briefs on the merits in No. 73-1954 are required.
2/ For example, unlike plaintiffs' detailed and specific 
statement of the case (Brief for Appellants, pp. 3-18), or 
the even more detailed history of the proceedings (id. at 
la-14a) since the last remand from this Court, the school 
board's brief treats the facts in a cursory and superficial 
fashion. This approach distorts the case in several ways: 
first, the board can then omit critical facts on a selective 
basis. Nowhere in the board's brief do the defendants face 
up to the fact of 21,000 black students remaining in all-black 
schools, for example.

Second, the board's approach makes it seem logical and 
just to generalize about long stretches of district court 
litigation, masking any inconsistencies or differences in 
position adopted by the parties. Thus, the board commences 
its Statement of the Case as follows:

Since the August 29, 1972, decision of this Court 
upholding the implementation of Plan A and 
directing a plan of further desegregation, the 
events of this case have followed two parallel 
lines. The first of these has involved the con­
clusion of appellate proceedings and the implemen­
tation of the first busing in the Memphis School 
System under Plan A. The second has been compliance 
with the "additional instructions" contained in this 
Court's Decision of August 29th directing the con­
struction of a Final Plan of Desegregation.

(Brief for Defen. ants-Appellees, p. 2). The implications of 
this summary are that the two processes occurred simultaneously 
without interference one with the other; and that the board 
without difficulty or resistance has proceeded to carry out 
the judicial direction to eliminate "root and branch" the dual 
school system in Memphis. This latter point is repeated in 
self-congratulatory terms throughout the board's Statement of the Case. (cont'd)

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But this is no minor concern, or side issue, for the 
21,000 black pupils whom the Memphis school board and the

3/district court propose shall remain in all-black schools.
It has been the very heart of this lawsuit since its inception 
in 1960. The "extreme western portion of Memphis" which the 
school board willingly consigns to perpetual segregation is

t ______ _____________ ______________
2/ cont'd

A closer study of the proceedings in the district court 
reveals, however, the inaccuracy of the board's general 
description. There was no parallel development. At the urging 
of the board, the district court postponed consideration of 
developing a final plan until after the basis upon which Plan 
A was to be implemented had been settled. The school board 
not only wanted stays of any desegregation while it vainly 
sought certiorari [despite the consistent Supreme Court 
practice of denying such stays in all cases after Alexander 
v. Holmes County Bd. of Educ., 396 U.S. 19 (1969) except 
Corpus Christi Independent School Dist. v. Cisneros, 404 U.S.
1211 (1971), cert, denied, ___ U.S. ____ (1973)], but it also
succeeded in delaying Plan A implementation until the second 
semester of the 1972-73 school year for elementary and junior 
high schools, and until this school year for high schools.
And the fact that the school system thereafter planned for 
the smooth implementation of an order which it at long last 
admitted it could not overturn, amounts to no more than the 
level of conduct we all have a right to expect from public 
officials.

Finally, the board's style of factual presentation, when 
combined with its major legal argument (see infra), puts it 
on both sides of the legal street at the same time. If this 
Court's reviewing function is to inquire only if the lower 
court overstepped the bounds of equitable discretion, then it 
must make that judgment based on the entire record and back­
ground before the district court; it cannot simply approve or 
disapprove the result below with reference only to selected 
facts or circumstances.
3/ It is no answer to this concern that individual black 
children and their parents may exercise rights under majority- 
to-minority transfer provisions with free transportation. In 
the first pi; ce, this is no measure of compliance with the 
board ' s constitutional obligation. Majority-to-minority trans­
fers have never in the past desegregated the school system.
See Green v. County School Bd. of New Kent County, 391 U.S. 430 
(1968). Furthermore, the transfer provisions provide only a 
limited opportunity for these 21,000 black children. The

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The blackthe historic, downtown, original area of the city, 
schools which remain under the plan approved below are the 
very racially segregated black schools whose elimination was 
the goal when this action was filed. It is surely a pyrrhic 
victory for the cause of the United States Constitution if 
they must remain segregated after 13 years of litigation.

4/

The school board's proffer of excuses is but cold 
comfort to these black children. Talk of "maintaining Plan 
A desegregation," for example, translates to these children 
to mean that they must be penalized now and hereafter because 
the district court erred in approving an inadequate plan of 
integration last year. The concern for an additional 1% of

3/ cont'd
entire "Plan II" was drafted in order to, among other goals, 
balance facility utilization at an optimum level throughout 
the system; thus, applicants for transfer must overcrowd schools in order to desegregate them. Finally, since it is totally 
beyond the realm of expectation to imagine that any white 
students will transfer to historically black schools, the 
transfer provisions will "work" only at the cost of the dignity 
of black students and their parents, who will watch a new 
badge of racism become operative as white students are not 
sent to black schools even if this results in closing down the facilities.
4/ In effect, through its intensive resistance to the imple­
mentation of the Fourteenth Amendment throughout this case, 
its annexation policies and the school construction practices 
described in detail in our brief last year (No. 72-1630,
Brief for Plaintiffs-Appellees, at pp. 16-21), Memphis had 
established a new dual school system to replace the old by 
opening a new set of schools for white Memphians to the east 
of the original city system. Compare Clark v. Board of 
Educ. of Little Rock, 401 U.S. 971 (1971), see Petition for 
Rehearing En Banc, 6th Cir. , No. 71-1174; Swann v. Chariott.e- 
Mccklenburg Bd. of Educ., 402 U.S. 1, 20-21 (1971).

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the school system's budget recalls to these pupils and their
parents this school board's decade-long school construction
program of unparalleled extravagance and segregative effect.
They can read the message between the lines— and it is one
which bespeaks of no moral determination in this Nation:
"Millions for segregated schools, but pennies for integration."
Blacks know whose interests are being cared for when the same
school board which sent black high school students to another
system, expresses its "deep and sincere" concern about an1/additional ten minutes on the bus.

The school board's legal argument deserves similar
6/

short shrift. Of course the district judge, ostensibly more 
familiar with local conditions, is vested with considerable 
discretion in fashioning a remedy for the unconstitutional 
school segregation which has persisted in Memphis. But the 
whole history of school desegregation in America reinforces 
the importance of the reviewing courts in preventing district 
judges from vitiating the constitutional guarantees in the 
name of "local conditions." E.g., Aaron v. Cooper, 257 F.2d 
33 (8th Cir.), aff'd 358 U.S. 1 (1958); Stell v. Savannah-

-̂ 7 The board suggests that Plan II routes, on an average 
ten or fifteen minutes shorter than Plan I-III routes, will 
allow more students to participate in extracurricular activities. 
The logic escapes us. What extracurricular activities take 
only fifteen minutes? Or is the board willing to provide an 
extra bus to take students home from after-school activities 
at 3:45 but not at 4:00?
V  For example, the board's brief advances contentions in a 
footnote (n.20) which were made to, and rejected by, the 
district court and this Court in 1972.

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Chatham Bd. of Educ., 333 F.2d 55 (5th Cir. 1964); Northcross 
v. Board of Educ. of Memphis, 466 F.2d 890 (6th Cir. 1972), 
cert, denie , 410 U.S. 926 (1973).

Neither Goss v. Board of Educ., 6th Cir., No. 72-1766 
(July 18, 1973), nor Lemon v. Kurtzman, 411 U.S. 192 (1973),
cited therein, requires affirmance of the ruling in this case. 
This is neither the time nor the place for the parties to 
debate their views of Goss ? its holding is simply that the 
district court's action there was, under all of the facts 
and circumstances, not clearly erroneous.

That holding is not mechanically applicable to the 
instant case. And any use of Lemon v. Kurtzman in support of 
affirmance would be unwarranted. The normal hesitance of 
an appellate court to interfere with the affirmative remedial 
aspects of a decree in equity is one thing, but the considera­
tions are of a different sort when an equity court denies 
relief, in whole or in part, since substantive legal notions 
as well as remedial doctrines are thereby affected. Compare 
Swann v. Charlotte-Mecklenburq Bd. of Educ., supra, with Keyes 
v. School Dist. No. 1, Denver, ___  U.S. ____ (1973).

Even less are the theories suggested by the school 
board useful in this case, for the district court's opinion 
makes it clear that he was not holding Plan I-III busing 
infeasible in the same technological sense as did the district 
court in Goss. Rather, we believe the lower court's opinion 
advances certain legal considerations accepted by that court

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and based upon which it chose to leave 21,000 black students 
in segregated institutions.

We close by noting that we are once again accused of 
extremism by the school board (Brief for Defendants-Appellees, 
at pp. 16-17). Our response is twofold: first, if counsel
for the class of plaintiffs are to be considered extreme for 
attempting to enforce the personal Fourteenth Amendment rights 
of 21,000 members of that class, then we accept that label. 
Second, we direct the attention of the Court to our description 
in last year's brief (No. 72-1631, Brief for Cross-Appellants, 
at pp. 14-15) of the "compromise" process engaged in by the 
district court.

The position which has been advanced by plaintiffs is 
hardly extreme. We seek an additional expenditure equal to 
1% of the school board's budget, for bus rides up to seven 
minutes longer than were projected under Plan II (the school 
system is using the expressway routes) in order to make the 
Constitution meaningful for .over 21,000 black students in 
what was, until implementation of the plan affirmed by this 
Court in 1972, the nation's most segregated school system.
There can be no better incentive to extremism than the failure 
of our legal institutions to bring to fruition the great 
constitutional struggle against segregation in education.

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The role of this Court is vital. The judgment below should 
be reversed.

Respectfully submitted,

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

525 Commerce Title Bldg. 
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 26th day of September,
1973, I served two copies of the foregoing Reply 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

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