Robinson v Shelby Country Board of Education Reply Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THl SIXTH CIRCUIT

NO. 71-1825

CLAUDE BERNARD ROBINSON, et al.,
Plaintiffs-Appellants, 

v.
SHELBY COUNTY BOARD OF EDUCATION, et al.,

Defendants-Appellees.

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

Western Division

REPLY BRIEF FOR APPELLANTS

WILLIAM E. CALDWEEL 
RATNER, SUGARMON AND LUCAS 

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants



TABLE OF CONTENTS

Table of Cases ..........................
Statement ....................

Recent Procedural History................
The Board's Plan ......................
The Title IV Center's Memorandum ........
The United States' Plan ..............
The District Court's Decision and the Plan Approved Therein ......................

ARGUMENT..........

Pa^e
ii
3
3
7

10
11

19
22

The District Court Erred In Holding That Racially 
Identifiable Schools Do Not Have To Be Segregated Unless Their Racial Identity Can Be Linked To 
Some Specific Segregation-Causing Act Of The 
Defendant School Board, Which Admittedly Operated A Racially Dual School System and Which This 
Court and The District Courg Found Had Not 
Disestablished That System ..................  22
The District Court Erred In Holding That Racially 
Identifiable "White" Schools Do Not Have To Be 
Desegregated Where Pedagogically Feasible and Sound Alternatives Exist ....................  29
The District Court Erred In Approving A Plan 
"Which Does Not Do As Much To Disestablish Segre­
gation As An Alternative Proposal Which Is Feasible And Pedagogically Sound"............ 30
The District Court Erred In Approving The Closing 
Of Black Schools on Grounds Of White Community 
Hostility And Without Requiring The School Board 
lo Justify Such Closings With Compelling Educational Reasons, And In Holding As A Matter of Law That 
School Board Actions Which Place Discriminatory 
Burdens On Negroes In The Desegregation Process,
In The Face Of Reasonable And Fair Alternatives,Are Not Constitutionally Proscribed.......... 32

Conclus ion 38



Table of Cases
Page
38Bolling v. Sharpe, 347 U.S. 497 (1954) . . . 

Bradley V. Milliken, C.A. No. 35257 (E.D.
Mich. September 27, 1971 ........ 25

Clark v. Board of Educ. of Little Rock,
Nos. 71-1409, 71-1415 (8thCir. Sept. 10, 1971.............. 26

Davis v. Board of School Comm'rs of 
Mobile County, 402 U.S. (1971). . 6, 24

Green v. County School Board, 391 U.S. 430 (1968)................ 3
Haney v. County Board of Educ., 410 F.2d 

920 (8th Cir. 1969) ............ 26
Kelley v. Metropolitan County Board, C.A. Nos 

2094, 2956 (M.D. Tenn. June 28,1971)....................
•

27, 28, 29 
31

Mannings V. Board of Public Instruction of 
Hillsborough County, C. A. No. 3554 (M.D. Fla. May 11, 1971) . . . 26-27, 29

Swann v. Charlotte-Mecklenburg Bd of Educ., 402 U.S. 1 (1971) .......... 3, 24-25
United States v. Watson Chapel School Dist.,

No. 20,699 (8th Cir. August 11, 1971) 26

Table of Cases For Motion For Summary Reversal
Motion Page

Bell v. West Point Municipal Separate
SchooliDist., No.^pl75 (5th Cir. July

Brice V. Landis, 314 F. Supp. 974 (N.D.Calif. 1969)................ .. 2.̂
Davis v. Board of School Comm'rs, supra. . 9, 10-11
Gordon v. Jefferson Davis Parish School

Board, No. 30075 (5th Cir. June 28, 1971). 16



Green v. County School Board, supra ........  9,10-11
Green V. School Bd. of Roanoke, 316 F. Supp.

6 (W.D. Va. 1970), aff'd in part 
sub nom., Adams v. School Dist.
No. 5, 444 F.2d 99 (4th Circ.1971) (en banc).............. 14-15

Haney v. County Board of Educ., 429 F.2d 
364 (8th Cir. 1970) .......... 13

Kelley v. Metropolitan County Board, 436 
856 (6th Cir. 1970) .......... F. 2d

11
Lee v. Macon County Board of Educ., No. 30154 

(5th Cir. June 29, 1971) ........ 15-16
Loving v. Virginia, 388 U.S. 1 (1967) . . • • 13
Quarles v. Oxford Municipal Separate School Dist., Civ. No. WC 6962-K (N.D. Miss.

Jan. 7, 1970) (oral opinion) . . . .  15
Smith v. St. Tammany Parrish School, 302 

F. Supp. 106 (E.D. La. 1969) • • 13
Spangler v. Pasadena City Board of Educ., 

F. Supp. 501 (C.D. Calif. 1970) 311 
• • 13

Swann v. Charlotte—Mecklenburg, supra . . • • 00

Swann v. Charlotte-Mecklenburg, C.A. No.
1974 (W.D.N.C. June 22, 1971) . • • 16

United States v. Jefferson County Board of Educ.,
372 F.2d 836 (5th Cir.), aff'd on rehearing 
en banc, 380 F.2d 385 (1966), cert, denied 
sub nom., Caddo Parrish School Board v. 
United States, 389 U.S. 840 (1967). 7,8



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NO. 71-1825

CLAUDE BERNARD ROBINSON, et al.,
Plaintiffs-Appellants, 

v.
SHELBY COUNTY BOARD OF EDUCATION, et al.,

Defendants-Appellees.

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

Western Division

REPLY BRIEF FOR APPELLANTS

On September 1, 1971, plaintiffs-appellants 
filed in this Court a Motion for Summary Reversal of 
the district court's decision of August 11, 1971. By 
order dated September 27, 1971, the Court treated 
plaintiff's motion as the brief for appellants and 
established a schedule for filing Brief for Appellees 
and this Reply Brief for Appellants. The case was set 
for argument on October 20, 1971, and appellants were 
directed to file the reporter's transcript prior to that
date.



As the transcript was not available when the
’•'otion for Summary Reversal was filed, we take this 
opportunity to elaborate on the facts, with appropriate 
references to the transcript, in order that the Court 
may have a full understanding of the factual develop­
ments below.

The issues presented for review are the four 
errors assigned at pages 2-3 of the Motion for Summary 
Reversal, i/

— Appellees have chosen to restate and consol, 
date the issues presented for review (Appellees' Brief 
at 1-2). The issues as stated by appellees, however, 
ave little if anything to do with this appeal, as will 

be further discussed, infra.



Statement

A. Recent Procedural History

April 6, 1970, the district court entered an 
opinion (311 F. Supp. 97) from which plaintiffs appealed. 
May 10, 1971, this Court remanded the case to the district 
court, the principal opinion by Judge McCree holding that 
the district court had erred under Green v. County School 
Board, 391 U.S. 430 (1968), in approving the defendant 
Board's zoning plan "which [did] not do as much to 
disestablish segregation as an alternative proposal 
[by the Title IV Center] which is feasible and pedago- 
gically sound." 442 F.2d 255, 258 (6th Cir. 1970).

On remand, the district court held a pre­
trial conference with counsel for all parties on May 28, 
1971, and entered an order the same day directing the 
defendant Board to file within two weeks a plan for 
complete desegregation of its school system, and also

f-/ Plaintiffs filed their complaint in this 
case on June 12, 1963. The United States intervened on 
May 6, 1966. The pertinent history of this litigation 
is set forth in the district court's 1970 opinion, 311 F. Supp. at 99-101.

2/judge Weick concurred in the remand and Judge 
Miller concurred in the result, both judges indicating 
that a reconsideration in light of Swann v. Charlotte- 
Mecklenburg Board of Educ., 402 U.S. 1, 28 L. Ed. 2d 
554 (April 20, 1971) was appropriate.

-3-



requesting the Educational Opportunities Planning Center 
at the University of Tennessee [hereinafter, "Title IV 
Center" or "Center" or "court's expert"] to file a plan 
at the same time. (A. 17-18).i/ Plaintiffs were allowed 
one week following the filing of plans to object thereto, 
and then "such additional reasonable time as may be 
necessary for plaintiffs to prepare and submit an alter­
native to such plan or plans, if they so elect." (A. 17).1/ 

June 9, 1971, defendant Board filed its Revised 
Desegregation Plan (A. 19-24 and maps), and the Title 
IV Center filed a memorandum suggesting certain modifi­
cations of the Board's plan (A. 30-32).®/ June 11, 1971, 
plaintiffs filed their objections to the Board's plan

4/"A.___" references are to the previously-filed Appendix to Motion for Summary Reversal.

—^In addition, the order provided that if 
plaintiffs elected to submit a plan they could apply 
to the Court to have the costs of any such plan assessed against defendants. (A. 18).

In view of the Title IV Center's memorandum 
the Board, on June 15, filed an alternate proposal for 
two elementary schools. (A.25-26 and map). The 
Board subsequently filed on July 16,1971, a modi­
fication to its plan, necessitated by the burning 
of Millington Central elementary school. (A. 27-28).

-4-



and the Center's memorandum, and sought leave to have 
a plan prepared at the Board's expense. (A. 33-35).U  

The district court conducted a hearing on the 
submissions cf the Board and Title IV Center on June 
21, 1971. The plaintiff-intervenor, United States of 
America, filed its objections to the plans at the hearing. 
(Tr. 9, A. 37-38). The June 21 hearing was prematurely 
terminated (Tr. 210) because of a commitment of defendant 
Board's attorney in a state court matter (Tr. 229).
June 23, 1971 the district court entered a memorandum 
decision and order directing plaintiffs and the United 
States "each to file wholly new and entire plans"

7/ Plaintiffs sought to have a plan prepared 
at Board expense on the ground that the Board's plan 
and the Center's modifications patently failed to 
comply with this Court's remand opinion and the Supreme 
Court's decision in Swann, supra. (A. 35). On June
10, 1971 (the day before plaintiffs' objections 
were filed), however, the district court, by letter 
to counsel, scneduled a hearing on the submissions 
of the Board and Title IV Center for June 21, 1971.
On June 14, 1971, plaintiffs requested a continuance 
of the June 21 hearing and informed the Court that 
they could not obtain an expert and prepare a plan 
in such a short period of time, but the request was 
denied. (Tr. 4 - 7 ) .  Nevertheless, plaintiffs were 
able to secure an expert and had an alternative 
plan prepared for presentation at the June 21 
hearing. (Tr. 9). Plaintiffs were not permitted 
to present their plan at that hearing, however, 
because the Court was unable to conclude tne hearing 
by 1:00 p.m. as it had hoped. (Tr. 43 - 44,173 - 74 . )

-5-



The United States filed its plan on July 
15, 1971 (A. 68-100 and maps), but plaintiffs were 
financially unable to present a plan. (a . 65-66).£/
July 22, 1971, plaintiffs filed their response to the 
United States' plan (A. 105-08) and defendant 
Board filed its objections to the plan.

The district court conducted a 5-day hearing 
on August 2-6, 1971, and entered its decision on August

by July 15, 1971. (A. 40-43.®/

8 /- The district court was of the view that 
Justice ™  P ^ ntlffS and the Departnent o?
r S i n g  » 71 S42? Sd thSir demandS since

1 9 7 0  o p in i o n  the c o u r t  s a i d :  " i t  i s  i m p l i c i t  i n

o r i g i n a l ° n l a i n t i  f t hS A t t o r n e l’ G eneral  and th e  
r e q u i r e s  S  ?  co n te n d  t h a t  th e  C o n s t i t u t i o n  
b a l a n J I f e a s i b l e  s t e p s  be ta k e n  t o  
a t  101  w6 f a c e s . in each  s c h o o l . "  3 H  F . Supp.

KG 1SSUe With the district court on
wS Sid n S ^ a n d ^ r  h?V® ^  escalated °ur demands and r-u not and do not seex to have the s c h n n l ?  i r>Shelby County racially balanced. We merely seek
t a k i n a r i i £ o S t  p o s s l u l e  de9 r e e  o f  a c t u a l  d e s e g r e g a t i o n  
s i t u a t i o n ^  a P co u n t  th e  P r a c t i c a l i t i e s  o f  t h l  '
S o b i ^ g ^ t u ^  ^ c B° a rd  ? !  j e h o o ^ c o n w r s  o ,
71971). * ' ' 28 L. Ed.2d 577, 580-81

denied (Tr~ 217) renewed their request, previously
Boa^d (A «-66 ' b h hfVe - assessed against the *
decision dated 28 ?97} U Ct J°Urt' by me”°randum
motion. (A. 109-lo77^On^July M ^ l ^ l ^ t l E r -* 
filed a motion to amend or modify the July 28 S

thiS std Vp ding in

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11, 1971. (A. 1-15). W

B. The Board's Plan

The Board's proposed plan is substantially 
the same as the one under which it operated last 
year, which was disapproved in this Court's May 10 
opinion. The Board's plan, as filed, contains 27 
elementary schools with a projected enrollment of 
15,455 pupils, of whom 4,981 or 32.2% are black, 
and 6 high schools with a projected enrollment of 
7,517 pupils, of whom 2,624 or 34.9% are black.
The total enrollment projected for the current school 
year was 22,972, of which 7,605 or 33.1% are black.
(A. 24).

—  Prior to the August hearing two groups 
of white parents and their children moved to intervene 
as plaintiffs. One group ("Coro Lake Intervenors") 
was concerned with the proposed pairing of Coro Lake 
and White's Chapel elementary schools. The other group 
("Ellendale Intervenors") was concerned with the 
Board's proposal to close Ellendale elementary school 
and consolidate it with Shadowlawn elementary school.In addition, the Coro Lake Intervenors moved to join 
the Board of Education of the Memphis City Schools as 
a party defendant for the purpose of utilizing the City 
school of Westwood in desegregating White's Chapel 
and Coro Lake. Since both parties sought more dese­
gregation then the Board proposed, plaintiffs did not 
oppose the interventions. The district court granted 
the motions to intervene and the motion to join the City Board. (A. 109).

Since the August 11 decision two additional 
white parties have sought to intervene, but the motions 
were denied on August 31, 1971. Beth parties have 
since renewed tneir motions and seek to present alter­
natives to the Shadowlawn clustering, but these motions 
were denied on October 12, 1971.

-7-



At the elementary level (grades 1-8) the Board 
proposed only two changes: (1) pairing Barrett's Chapel
and Bolton elementaries with grades 1-6 or 1-8 to 
be housed at Barrett's Chapel (projected 61.6% black^ V ) 
(Tr. 29-30); (2) closing Ellendale and adding its
pupils to the Shadowlawn zone (projected 69.7% black)
(Tr. 30).12/ Of the 27 elementary schools in the 
Board's proposed plan, 10 were projected to be more 
than 50% black and 10 were projected to be less than 
20% black, in a system projected to be 32.2% black 
at the elementary level. (A. 23-24).13/

11/The projected % black figures are taken from the projected enrollment charts filed with the Board's plan. (A. 23-24).
12/—  In changing the Shadowlawn zone to take Ellendale, the Board also enlarged the Elmore Park 

zone to take in most of the black Ellendale students, 
leaving mostly white students to go to Shadowlawn. (Tr. 
30-31). Last year Ellendale was 24.1% black (Exhibit 7; A. Ill) and Elmore Park was 15.1% black (A. 111).
Elmore Park was projected under the Board's plan to be 20% black (A. 23).

13/After the Title IV Center filed its memo­
randum recommending the pairing of Riverdale (projected 
3.2% black) and Germantown (projected 40.2% black) 
the Board, while contending that Riverdale was a "de 
facto" segregated school (Tr. 984-95; A.25), filed“an 
alternate proposal admitting the feasibility of dese­
gregating Riverdale. (A. 25-26). (This was part of the 
continuing bartering process carried on between the 
Board and the district court, see note 33,infra.)
At the June 21 hearing, the Superintendent stated that 
his first preference (if anything at all had to be 
done) was to pair the two schools, with his second 
preference being to desegregate Riverdale by noncon­
tiguous zoning. (Tr. 2 5 - 2 7 )  . He subsequently reversed 
this order of preference. (Tr. 958-64).

-8-



At the high school level the Board made two
changes in last year's plan: (1) Bolton became the high
school (projected 65.9% black) in the pairing with Barrett's 
Chapel (Tr. 36); (2) Mt. Pisgah high school (94.8%
black last year, A. 113) would be closed and its high 
school students assigned by rezoning to Germantown 
(projected 46.1% black), Collierville (projected 52.3% 
black) and Bartlett (projected 24.2% black) (Tr. 36-37).

The Board refused to adopt three recommenda­
tions made last year by the Title IV Center and which 
were consequently incorporated in this Court's May 10 
remand : (1) To pair Coro Lake (projected 30.1%
black) with White's Chapel (projected 100% black) (see 
311 F. Supp. at 103); (2) to pair E.A. Harrold (projected
76.3% black) with Millington Central elementary (pro­
jected 16.6% black) (see 311 F. Supp. at 104)— /;

— /The Superintendent took a rather self-serving, 
if inconsistent view of this Court's remand opinion.
For example, he testified that since the closing of Ellen-
dale to desegregate Shadowlawn was part of the Center's
plan which was before this Court he was not at liberty
to propose other feasible and more effective alternatives,
yet he completely ignored the recommendations listed in
the text, as well as the Center's proposal that Barrett's
Chapel be the hign school when paired with Bolton.(Tr. 1147-49).

ii/The Board proposed to build a "middle school" in this area of the County and close Harrold when the 
middle school opens next year. (Tr. 33-36). Millington 
Central elementary burned during the summer, and the 
Board was forced to modify its plan. (A. 27-28). The 
modification places Millington Central grades 1-2 at 
a former parochial school which has been leased by the 
board, grades 3-4 at Harrold and grades 5-6 in portables 
at the burned out site. The placing of Millington Central 
grades 3-4 at Harrold will not desegregate Harrold, 
however, because the grades will remain segregated.
(Tr. 1386). -9-



(3) rezoning white high school students from Germantown 
to Mt. Pisgah ±i/ (see 311 F. Supp. at 1C4).

C. The Title IV Center's Memorandum

The Title IV Center '/ recommended only two 
modifications of the Board's plan: (1) Pairing White's
Chapel and Coro Lake (A. 31; Tr. 176); (2) pairing
Riverdale and Germantown (A. 31-32; Tr. 176-77).i®/

16/The Board's plan as previously pointed out, closes Mt. Pisgah high scnool.
17/The Title IV Center was represented by Dr. Frederick P. Venditti at the June 21 hearing (Tr. 175), 

and by Dr. Marshall E. Meyer, Jr. at the August hearing 
(Tr. 1184), each testifying as the court's witness.
Title IV Desegregation Centers came into existence as a 
result of Civil Rights Act of 1964 to assist school 
districts in the desegregation process. (Tr. 1328).
The Centers are agencies of the Department of Health, 
Education and Welfare (HEW) and their activities are 
supervised by that department. (Tr. 1328-29). For the 
last one and one-half years, desegregation plans prepared by Title IV Centers for presentation to a court are 
reviewed by a HEW "ad hoc committee" comprised of repre­
sentatives of HEW, the Department of Justice and the White 
House "to see if it is consistent with administration policy. (Tr. 1329-31). The Center's memorandum 
recommendations in the instant case were not reviewed by 
HEW's "ad hoc committee," however, because the memorandum was not considered a "plan." (Tr. 1332).

18/. . — The Center thus did not follow throughwith two of its previous recommendations. (See Motion 
for Summary Reversal at 4 n.5). The Center I U o 
initially went along with the Board's proposal to build 
a scnool on Whitten Road (Tr. 1 7 7 —7 8 ) , but subsequently 
reversed its position in that regard. (Tr. 1194-96 
1 1 9 9 - 1 2 0 0 ,  1 2 1 9 - 2 0 . )  '

-10-



The Center admitted that its modifications of the Board's 
plan did not create a unitary school system in Shelby 
County for the 1971-72 school year. (Tr. 1327)

D. The United States' Plan

The plan filed by the United States was presented 
through the testimony of Dr. Warren Buford.12/ Although 
Dr. Buford prefers to "start from scratch" in preparing 
school desegregation plans, he was limited in the instant 
case by the attorneys for the United States to modifying 
the Board's plan--i.e., "using the School Board proposal 
as the basis for ... development of [the] plan." (Tr.
407-12, 439). Nevertheless, the Government's plan 
accomplishes substantially more desegregation than 
the Board's plan as modified by the Title IV Center.

The Government's elementary plan leaves three 
majority black elementary schools: Woodstock (66%
black.?0/) , Arlington (61% black) and Capleville (74% black).— /

19/Dr. Buford and the other members of the team 
assembled by HEW to prepare the United States' plan are 
affili-atsd with the Title IV Center at the University of 
South Carolina. (Tr. 247-49). The team has considerable 
experience in preparing school desegregation plans. (Tr. 245-47).

— ^The % black figures are taken from the tables filed as part of the United States' plan. (A. 93-96).
—i/These scnools were left alone by the Govern­

ment's expert because of their apparent stability and the 
lac.-: of relatively reasonable alternatives. Dr. Buford 
insisted, nowever, that these schools be closely scrutinized 

the next, year or two to insure that they do not become 
resegregated. (Tr. 316-17). In addition to these three 
schools, the United States plan also leaves Bolton elementary 
58% black in grades 1-5, but because of an arrangement with 
Millington East (11.5% black last year, A. 112) Bolton is

(Continued next page)-11-



In addition, the Unted States' plan left four white 
elementary schools: Bartlett (14% black), Coleman
(11% black), Raleigh-Bartlett Meadows (11% black),
Spring Hills (13% black). (A. 93-96).

The Government's plan desegregates Mt. Pisgah 
elementary school (93% black last year, A. 112) by 
closing James and Cordova (which the Board planned 
to do in 1972), zoning in additional white pupils from 
that portion of the Board's Riverdale zone located north of

21/— • (cont'd.) only 40% black in grades 6-8.
(A. 95). Although majority black in student enrollment 
(in a 33% black system), these four schools were 
projected to have fairly substantial pupil integration 
and plaintiffs supported Dr. Buford's approach to 
these schools.

2 2/— ' Although there are feasible alternatives 
available which would eliminate the racial identity 
of these four white scnools, the schools service an area a substantial portion of which is to be annexed 
by the City of Memphis, and some of these schools 
will be operated by the Memphis school system begin­
ning in 1973; for this reason, Dr. Buford and the 
Justice Department attorneys determined that these 
schools should be left alone. (Tr. 330-33, 421-28).
The Superintendent subsequently testified, however, 
that annexation was not a sufficient reason for leaving 
these schools alone, and he agreed to a plan (the one 
approved by the district court) which clustered 
Raleigh-Bartiett Meadows with schools not to be 
annexed. (Tr. 1077-78).

-12-



the Shelby County Penal Farm,£V and zoning black students 
in the Bridgewater area of the former Mt. Pisgah zone into 
Elmore Park. (Tr. 321-25). The projection was that Mt. 
Pisgah would be 49% black in grades 1-5 and 46% 
black in grades 6-8. (A. 94). The court's expert 
(the Title IV Center) agreed that the Mt. Pisgah plan 
was feasible (Tr. 189-90, 191-92), and, in fact, that 
it offered tne only promise for desegregation of Mt. 
Pisgah. (Tr. 1262-70, 1275).24/

Shadowlawn (97% black last year, A.112) is 
desegregated by using a "clustering" arrangement whereby 
all students in grades 6-8 in the Shadowlawn, Brownsville 
(1.1% black last year) and Egypt (4.8% black last year) 
zones are assigned to Shadowlawn, and the Shadowlawn

2 3/— The Board's Riverdale zone is in effect a 
noncontiguous zone, as the northern portion of the zone 
(known as Whitten Height's and containing some 300 white 
pupils) is completely cut off from the southern portion 
(which contains the Riverdale school) by the Shelby 
County Penal Farm (which contains no through roads).
All of the Whitten Heights white pupils are already 
being bused to Riverdale, and this part of the Mt.
Pisgah plan entails no increase in transportation.(Tr. 106-08, 323).

24/—  The Superintendent did not question the 
feasibility of the plan, but criticized it because 
it does "the same thing we did under the segregated 
school system when blacks were picxed up and passed 
whites ... and they are passing each other on the 
road going in opposite directions." (Tr. 989). At 
one time the Board bused the black students in the 
Bridgewater area past the white schools of Elmore 
Park and Ellendale to Shadowlawn. (Tr. 1105).

-13-



students in grades 1-5 are, by zoning, equally divided 
between Brownsville and Egypt. (Tr. 327-28). The 
projection was that Shadowlawn would be 25% black, 
and Brownsville and Egypt each would be 31% black.
(A. 95). There was no question about the feasibility 
of this clustering arrangement, although both the 
Superintendent and the Title IV Center preferred varia­
tions clustering different schools with Snadowlawn.
(Tr. 1214-19, 1022-31, 1045-50).^/ The Superintendent, 
however, wanted to nouse only grades seven and eight 
(rather than 6-8) at Shadowlawn; the United States 
argued that the Superintendent's proposal placed an 
unreasonable share of the burden on black students and 
that more grades should be retained at Shadowlawn to mere 
equally distribute the burdens of desegregations between 
blacks and whites (Tr. 1401-02) , with which the Title IV 
Center agreed. (Tr. 129 8-9 9 ) .

— ^Since the Board's plan closed Ellendale, the United States' plan did not consider using Ellendale 
(24.1% black last year) in the Shadowlawn cluster. The 
United States agreed, however, that Ellendale could be 
retained and incorporated into the cluster (Tr. 1401) , as did plaintiffs (A. 115).

— /As we understand the position of the Ellendale Intervenors (the only party to file a response to our 
motion for summary reversal), this is the only issue with 
which they are concerned— i.e., the possibility of 
having only grades 1-5 at Ellendale rather than grades 
1-6. As previously noted, plaintiffs agreed to Inter­
venors' desires to retain Ellendale (see note 25, supra).

With regard to the proposal placing a dispro­portionate share of the burdens on black students at 
Shadowlawn, the district court gives plaintiffs credit for 
raising this issue below. (A. 14 n.14) . As pointed out 
in the text, the United States raised this particular

(Cont'd. next page)-14-



As previously set forth, the Board's plan 
paired Barrett's Chapel and Bolton, with Barrett's 
Chapel to be tne elementary facility (projected 61.6% black). 
The Government's expert, in addition to the pairing, 
preferred Bolton as the elementary facility^-Z/ and 
sought further desegregation by way of a rezoning arrange­
ment with Millington East (11.5% black last year, A.
112). (Tr. 334-40, 3 5 2 - 5 3 ) . The projection was

— ^(Cont'd) point at the hearing; nevertheless, plaintiffs support that position and urge it here.
27/—  Under both the Board's plan and the Govern­ment's plan, the elementary school and the high school 

are called "Barrett's-Bolton," because of the pairing.
The Board, however, makes the formerly white facility 
(Bolton) the high scnool, and the formerly black school 
(Barrett's Chapel) the elementary school, whereas the Government's plan reverses this arrangement.

1®/The arrangement works like this: MillingtonEast is reduced from grades 1-8 to grades 1-5 and the 
zone is enlarged to include the eastern portion of the 

s-Bolton zone and the northern portion of the 
Millington Central elementary zone; Barrett's-Bolton 
serves grades 1-5 in the remainder of its zone and 
serves all pupils in grades 6-8 in the Millington nast and Barrett's-Bolton zones.

-15-



that Millington East would be 22% black and Barrett's 
Bolton would be 58% black in grades 1-5 and 40% black 
in grades 6-8. (A. 95). The Superintendent and the
Title IV Center agreed that the plan was feasible 
(Tr. 154, 204), and the Center considered it educa­
tionally sound and admitted that it resulted in more 
desegregation than the Board's plan. (Tr. 1284-90).

The final portion of the Government's elementary 
plan involves three schools in the Millington area:
Harrold (72.7% black last year, A. 111-112), Millington 
Central (21.1% black last year) and Millington South 
(7.9% black last year). These schools are desegregated 
via a clustering arrangement whereby Millington South 
and Harrold are rezoned to serve grades 1-5 in the 
area, and Millington Central serves all pupils in grades 
6-8 in the area. (Tr. 353-58) .29/ The projection 
was that Harrold would be 19% black, Millington South 
would be 18% black, and Millington Central would be 
24% black. (A. 96). The Superintendent admitted that 
the plan would work (Tr. 1085-86) and the Title IV 
Center agreed that it was feasible and accomplished

29/
x. . . ... Alth°ugh the Millington Central Elemen­tary facility ourned during the summer, this fact 
does not affect the plan aecause grades 6-8 can be

ln S£aCf Wl1llch iS available in the adjoining Millington Central high school plant and the leased 
parochial school across tne street. (Tr. 358-66, 384-87)

-16-



more desegregation. (Tr. 1256-60).2£/
The Government's high school plan also accom­

plishes more desegregation than the Beard's plan.31/
The Government considered only one change from the Board' 
high school plan to be legally mandated: Barrett's-
Bolton high school (projected 65.9% black, A. .24).
The Government's plan places the high school at the Bar­
rett's Chapel facility, which Dr. Buford considers a 
more desirable high school plant (Tr. 286-88), alters 
the zone line between Barrett's-Bolton and Millington 
Central to bring more whites into Barrett's from the 
Central area. (Tr. 285-86). All parties agree that 
this proposal is feasible and creates no additional 
busing. (Tr. 299-301, 933-35, 1094-95, 1208-11, 1224- 
25, 1284-90). The projection was that Barrett's- 
Bolton would be 53% black and Millington Central would 
be 33% black. (A. 91)

30/The Board proposed to close Harrold a year from now when its "middle school" is built.
Although Dr. Buford was very much in favor of the 
middle school, he strongly opposed the proposal to close 
Harrold, which he sees as having a very viable educa­
tional function even after the middle school is constructed. (Tr. 384-87, 456).

31/It is to be remembered that Dr. Buford did not "start from scratch", but was limited to 
modifying tne Board's plan. (See pace , supra).
Thus, he did not consider the desirability of retaining 
Mt. Pisgah high school, which the Board's plan closes. (Tr. 4 36-41) .

-17-



Although the Justice Department attorneys 
felt that the Barrett■s-Bolton high school modification 

"met minimum legal requirements”(Tr. 201), their expert 
felt tnat further modifications of the Board's plan 
were necessary for complete high school desegregation. 
(Tr. 407-12). Dr. Buford therefore expanded the Raleigh 
Egypt zone to take in more black students from the 
Bartlett zone, thereby increasing Egypt from 13.7% 
black (A. 24) to 24% black (A. 91) (Tr. 304, 309); 
more slack students were then added to Bartlett from the 
Collierville and Germantown zones, with the following 
effects: Bartlett increased from 24.2% black (A, 24)
to 26% black (A. 91), Germantown decreased from 46.1% 
black to 40% black, and Collierville decreased from 
52.3% black to 50% black. (Tr. 301-02). These changes 
do not result in any increase in busing.

The Government's plan was a significant step 
toward complete desegregation of the Shelby County public 
schools, although Dr. Buford conceded that the plan 
does not eliminate all racially identifiable schools.
(Tr. 460). ho serious questions as to the feasibility 
of implementing the plan are raised. The Government 
estimated that their plan would cost an additional 
$52,447.40 (A. 98), but that this cost would be more 
than offset by the closing of Cordova and James (A. 99) 
(Tr. 382-84). The plan states that ten additional 
buses will be needed (A. 98), but because of extra buses 
on hand this number was reduced to two (Tr. 381). Both

- 18-



Dr. Buford and the Court's expert were in agreement that 
cost was not significant (Tr. 460-61,. 1290-91), and 
that the plan could be implemented with existing 
transportation facilities by proper staggering of 
school opening times so that each bus could make 
additional runs (Tr. 381-84, 461-62, 1293-96).!?/

^• The District Court’s Decision and the Plan ApprovedTherein -

The plan approved by the district court is 
basically the Board's plan, as modified by the Title 
IV Center. All of the Board's high school plan was 
approved. The court held that no further desegregation 
of the Barrett's-Bolton high school was required be­
cause "these schools would be the same if there had never 
been de jure school segregation applicable to the 
area they serve." (A. 8). The court did not mention Dr 
Buford's recommended changes for the other high schools. 
The court thus approved the operation of Barrett's- 
Bolton at 65.9% black and Raleigh-Egypt at 13.7% black.

The Board's elementary plan was approved, with 
one exception: rather than close Ellendale, the court
approved a clustering arrangement for Shadowlav/n sub­
stantially tr.e same as one agreed to by the Superintendent 
(Tr. 1045-50),— / involving Ellendale, Bartlett, Elmore

!?/The Board always has staggered school 
openings to accomodate its bus schedules. (Tr. 98-59,104-06 ) .

33/The distr ict court did not order anything not 
agreed to by the Superintendent. Indeed, the Board's plan

-19- <c°nti nued on next page)



Park, Raleigh-Bartlett Meadows and Brownsville. (A. 12- 
13). The plan approved by the district court thus leaves 
Barrett's-Bcltcn elementary at 61.6% black.* 34 35/ Coleman 
at 11.3% black, Egypt at 4.2% black, Harrold at 76.3% 
black,35/ Millington East at 13.3% black, Millington

 ̂-a /—  (Cont'd) as filed in June can be viewed
as the Superintendent's "first offer" —  the first step 
in the bartering process with the district court.
(See, e.g., Tr. 1022-31, 1045-50, 1050-58, 1385-83).

34 /—  Barrett1s-Bclton elementary was left alone for the same reasons as the high school (noted in text) and the adjacent Millington East elementary (13. 
black) was left alone either because it "would have 
significant integration" (A. 10) or because "[e]ven
if ... we wou)d be required to consider the use of 
some of the pupils in this area [Barrett's-Bolton] 
to treat surrounding schools, the answer is the same 
since we do not believe that the surrounding schools need be treated." (a. 8-9).

35 /~— As previously described, although the Harrold building will have more whites in it, they 
will be segregated by grade under the Board's 
plan, as the Superintendent testified. (Tr. 1386; see note 15, supra).

-20-



South at 6% black,22/Mt. Pxsgah at 93.1% black and 
Spring Hill at 13.5% black. (A. 23-24),22/

The district court held that racially identi­
fiable "white" schools did not have to be desegregated 
because it did not "believe that the Supreme Court held 
the equal protection clause to be that quixotic in 
purpose." (A. 4). The district court also held that 
discrimination against Negroes in the desegregation 
process is not a concern which rises to constitutional 
proportions. (See Motion for Summary Reversal at 11-13).

—  Millington South is a racially identifiable white school for more reasons than tradition. The school 
is located in the center of part of a 90-unit housing 
project operated by the Millington Housing Authority.
(Tr. 344-45) The remainder of the project is located 
around Harrold scnool. (Tr. 344) All of the units around 
Millington South are occupied by white tenants and all 
of the units around Harrold are occupied by black tenants.
(Tr. 345). These units were constructed and located 
where they are pursuant to a policy of racial segregation.
(Tr. 348). The Millington Housing Authority is presently 
defendant to a complaint filed in the district court 
alleging racial discrimination. (Tr. 345-46). The 
Authority's answer defends on the ground that the segre­
gated "arrangement was originally made to facilitate 
and enable the tenants to be close to schools attended by their children." (Exhibit 12, p. 3 - filed as an 
offer of proof).

— The Government's plan would have desegre­
gated all of these schools except Coleman and Spring Hill.

-21-



Argument

The District Court Erred In Holding That Racially
Identifiable Schools Do hot have to Be Desegregated
Unless Their Racial Identity Can Be Linked To
Some Specific Segregation-Causing Act of The
Defendant School Board, Which Admittedly Operated ---------------------- ----------------- --...»-------A Racially Dual School System And Which This 
Court And Tne District Court Found Had Not 
Disestablished That System 3~o7

The district court accepted the Board's
pairing plan (originally the Title IV Center's plan
incorporated in this Court's remand) for Barrett' s-
Chapel (formerly black) and Bolton (formerly white)
and did not require further desegregation as proposed
by the United States' plan, because

substantially all of the evidence 
introduced in this case in the 
various proceedings supports the 
proposition that the contemplated racial 
composition of these schools would be 
the same if there had never been 
de jure segregation applicable to the 
area they serve. Thus the racial 
composition of these schools cannot 
be said to be a vestige of state- 
imposed segregation. (A. 8).

38/— ' Defendants either misunderstand or misre­
present this issue by arguing that our position would 
pronibit a determination of the racial identifiability 
of each school in the first instance. (Appellees'
Brief at 7-10). Obviously, those schools which are 
substantially integrated can be left alone, unless it 
is necessary to make changes regarding them in order 
to desegregate those schools which remain substantially 
disproportionate in their racial compositions. Equally 
obvious, only those schools which remain racially 
identifiable have to be desegregated. Our point is 
that all such sc.iools nust be desearegated and some 
schools cannot be left segregated in former dual systems 
by reason of such nebulous investigations into the 
causes of segregation as the district court conducted 
here.

-22-



There are several things factually wrong with 
this determination. First, if the district court 
is correct, then under the same theory these schools do 
not even have to be paired, but could be left as they
were last year with their so-called "unitary zones." But
, Ithe court does not so hold, apparently recognizing the 
fact that the Board has historically maintained two 
schools in this area, one for blacks and one for whites, 
each serving grades 1-12.

Second, there is a substantial question
regarding the existence of the evidentiary support the
district court claims for tnis determination. We
are not aware of anything in the record of the latest
proceedings which supports the court's proposition.
The only testimony bearing directly on the point
appears in the court's direct examination of its expert:

Q. In your study of that area [Barrett*s- Bolton] have you run across anything that 
would indicate to you that the situation 
would be any different up there with 
respect to black-white ratios in those 
schools if we had never had de jure segre­
gation up there, or to put it another way—  
if you set that area down in the middle of 
Indiana or Illinois, do you thing that 
the ratio would be any different than what will be there?
A. I really can't come up with an answer on that. (Tr. 1226-27). '

Even under persistent questioning by tne district court the 
expert was unable to agree. (Tr. 1227-29).

The foregoing serves to point out the impossi­
bility of the district court's inquiry. Even if the

-23-



inquiry were proper the answer would evade us, for the 
question assumes a fact that never was and is not yet—  
i.e., that the Shelby County Board of Education never 
P^ac-"ticed racial discrimination. For the very reason 
that all things are not equal in a system that has 
been deliberately constructed and maintained to enforce 
racial segregation" (Swann, supra, 28 L. Ed. 2d at ), 
there is no way of knowing what the situation would be 
like had defendants treated Negroes equally during the 
century which has elapsed since the Fourteenth Amend­
ment became part of the Constitution.

But the district court insists that Swann, 
by requiring elimination of "all vestiges of state- 
imposed segregation," requires or at least permits this 
"de facto - de jure" inquiry. We submit that it does 
n°t -- that in cases like Swann the inquiry is whether 
the effects and vestiges of the segregation policy have 
been disestablished with the thoroughness required by 
the remedial principles announced therein; if not, then 
those remedial measures must be applied throughout the 
system witn the goal of achieving "the greatest possible 
degree of actual desegregation, taking into account the 
practicalities of the situation." Davis v. Board of 
School Comm'rs, supra, 28 L. Ed. 2d at 580-81.

The district court overlooks that portion of 
Swann which recognizes the mutual interaction between 
school segregation and residential segregation:

The location of schools may thus
influence the patterns of residential

-24-



development ....
In the past, choices in this respect 
have been used as a potent weapon for 
creating or maintaining a state- 
segregated school system .... Such a 
policy does more than simply influence 
the short-run composition of the student 
body of a new scr.ool. It may well promote 
segregated residential patterns which ... 
further lock the school system into the mold of separation of the races.

28 L. Ed. 2d at .22/ We do^comprehend Swann,
therefore, to mandate a complex sociohistorical analysis
of residential patterns by district courts in order to
determine the relative influence of segregated schools’
impact upon housing patterns (which in turn influence
the segregated character of schools). If that were
indeed the rule, there would be no need for the presumption
against schools which are substantially disproportionate
in their racial compositions which Swann announces —
announces precisely for the reason that the school-
realted and other influences upon the housing patterns
of an entire school district cannot be neatly separated
and evaluated as independent causal factors.

It follows that where a policy of segregation
is established for which the constitutionally-required

39/—  See Bradley v. Milliken, C . A . 35257 (E.D. Michigan September 2/, 1971) where the court found 
that residential segregation and school segregation in 
Detroit "are interdependent phenomena" (slip op. at 24) 
and "just as there is an interaction between resi­
dential patterns and the racial composition of the 
schools, so there is a corresponding effect on the 
residential pattern by the racial composition of the 
schools." (slip op. at 10). See also note 36, supra.

-25-



corrective action has not been taken, the presumption 
against substantially disproportionate schools is 
not rebutted by a claim that independent of the dis­
criminatory school board action, other factors might 
have produced the segregated situation. While population 
patterns are of course a factor, so also is the influence 
of past discriminatory acts, and no court is equipped to 
maxe (nor are litigants equipped to present a sufficient 
basis for) tne fine sociological judgment as to the 
relative influence of the two factors upon the present 
racial composition of a school.

Other courts in the post-Swann era have apparently 
taken the system-wide approach to the remedial process 
which we suggest. For example, in Clark v. Board of 
Educ. of Little Rock, Nos. 71-1409, 71-1415 (8th Cir. 
September 10, 1971) (en banc), the court noted two 
formerly white schools were now racially identifiable 
as black schools as a result of population shifts 
(slip op. at 9). Yet the court held "that the school 
district was obligated to develop a unitary school sys­
tem" and did not immunize these two schools from the 
remedial process. And in United States v. Watson Chapel 
School District, No. 20,699 (3th Cir. August 11, 1971), 
the court, relying on Haney v. County Board of Educ.,
410 F.2d 920 (8th Cir. 1969), rejected out of hand an 
argument "tnat the school locations and pupil assign­
ments are patterned on solely a de facto basis." (slip 
op. at 8).

In Mannings v. Board of Public Instruction
26-



of Hillsborough County, C.A. No. 3554 (M.D. Fla. May
11, 1971), the district court noted that the racial
makeup of several schools nad changed because of
population shifts. The court held, however, that "there
has not been an end to de j ure segregation," and in
determining the scope of the remedy, reasoned as follows
(slip op. at 40-41) :

the record supports what the Court has 
learned in presiding over school 
desegregation proceedings in tnis area 
of Florida: a desegregation plan
will be unsuccessful and entail resegre­
gation where a few whites are added to formerly 
black schools which remain intact; in short, 
a plan which anticipates retention of iden- 
tifiably black schools will fail. Partial 
desegregation results in white flight, resort 
to private schools, and other maneuverings 
which frustrate the course of justice. 
Successful desegregation must extend through­
out the school system and be done in such 
a way that the tactics which impede court 
orders are rendered futile.

There is an old equitable maxim that 
equity delights to do justice, and not by 
halves. It never had greater application than here.
In Kelley v. Metropolitan County Board of 

Educ. of Nashville and Davidson County, C.A. Nos. 2094, 
2956 (M.D. Tenn. June 28, 1971) (applications for stays 
denied by this Court and the Supreme Court), the court 
allowed several schools in outlying Davidson County to 
remain all or virtually all white. It appears that the 
facts in Kelley are no different than the facts in the 
instant case, and presumably the court in Kelley, under 
the theory adopted by the court below, could have given 
these schools the "de facto" stamp of approval. But

-27-



that was not the Kelley court's reasoning; rather, it 
left the white schools segregated, not because they 
were "de_ facto," but because there were no feasible 
alternatives. The court did not stop there, however; 
it went further and placed severe restrictions on these 
schools with regard to construction and placement of 
portables (slip op. at 16-17), for the purpose of 
prevent[ing] the use of these schools as an avenue of 

resegregation...." (slip op. at 11).40/
We submit that it was error for the district 

court to approach the evidence on a school-by-school 
basis alone. To desegregate a few schools but leave 
others as they are, against the background of a segre­
gation policy enforced by the defendant school district,

<3° nothing for the future of integration in the 
public schools of Shelby County. Instead, this partial 
solution, like the partial solutions of free choice 
^ud limited rezoning, will result only in further impaction 
of the existing segregation.

^O/This reasoning has particular relevance 
for the district court's view, in the instant case, that 
"white" schools do not have to be desegregated. (Dis­cussed, infra).

41/—  This process is already underway withproposals to build additional "black" housing in 
the Barrett's Chapel area. (Tr. 948, 1159).

-28-



The District Court Erred In Holding That
Identifiable ".vnite” Schools Do hot Have 
Desegregated Where Pedaqoqically Feasible Alternatives exist ‘ ‘----- ----------

Racia Ail To Be 
and Sound

Defendants have operated a dual set of schools, 
one for whites and one for blacks. The existence today of 
white" schools is just as much an indicia of segre­
gation as is the existence of "black" schools. (Tr. 
406-407).11/ Furthermore, the retention of "white" 
schools has an adverse effect on the stability of the 
remainder of the system. (Tr. 418-21). Mannings v.
Board of Public Instruction', supra; Kelley v. Metropolitan 
County Board of Lduc., supra (Mannings and Kelley are 
discussed in the preceding section of this brief, 
pages 2 6 - 2 8  , supra).

During the course of the latest hearing, the 
district court properly stated the legal standard (Tr.
603) :

42_/ Defendants combine this issue with our fourth assignment of error "for the sake of clarity 
and brevity." (Appellees' Brief at 11). We think it 
obvious that the issues are not combinable and that 
defendants, despite their assertions to the contrary, 
are attempting, if unsuccessfully, to cloud the issues.

4 3/Additionally, it is just as important that white children are exposed to black children in 
the educational process as it is that black youngsters be exposed to white youngsters. (Tr. 396-97). But 
whether or not the Equal Protection Clause is this 
"quixotic in purpose" is immaterial to the constitu­
tional requirement that all vestiges of the dual sys­tem be eliminated.

-29-



THE COURT: I thought that's one way
you defined a desegregated system within 
the meaning of the law, is to reach a 
point where no scnool is racially identi­
fiable as either black or white, but 
just schools. Isn't that what the Supreme 
Court said?

Eight days later, however, the district court said:
"we do not believe that the Supreme Court held the 
equal protection clause to be that quixotic in pur­
pose." (A. 4). Nevertheless, it seems quite clear 
that the law requires dismantling of "white" schools, 
as well as black schools. (See Motion for Summary 
Reversal at 9-10).
The District Court Erred In Approving A Plan "Which 
Does Not Do As Much To Disestablish Segregation As 
An Alternative Proposal Which Is Feasible and Peda- 
qoqically Sound"

Defendant's concede, as they must, that the 
Government's plan accomplishes more desegregation than the 
plan approved by the district court.li/ The only impediment 
to implementation of the plan found by the district court 
was that "at this time it would be necessary to stagger 
the daily starting times of the schools." (A. 6).
If this finding is meant to be a valid reason for not 
implementing the United States' plan, it overlooks

£.1/Defendants attempt to cast plaintiffs in 
the posture of seeking mathematical racial balance. 
(Appellees' Brief at 16-18). It should be perfectly 
clear from our position below and here that we do not 
seek racial balance. Plaintiffs s u d s tantially supported 
the plan filed by the United States, which could not 
by any stretch of the imagination be classified as a 
"racial Balance" plan. The fact that a plan achieves

(Cont'd. on next page)

- 30-



the fact that defendants already stagger school opening
times to accomodate their transportation scheduling.
(Tr. 98-99 , 104-06). It further overlooks the broad
remedial principles established in Swann. (See Motion
for Summary Reversal at 11). In Kelley v. Metropolitan
County School Board, supra, the district court, when
faced with the same problem, said:

Practical solutions are available 
such as the multiple use of buses, 
staggered hours for school opening, 
and staggered hours for individual grades. (Slip op. at 10).
Much of what has been said in the two preceding 

sections is applicable here, for part of the reason the 
district court approved a less effective plan was be­
cause it found some schools to be "de facto" and felt 
that white schools did not have to be desegregated.
But the court also approved a less effective plan for 
Millington South, Millington Central and Harrold (see 
note 35, supra) and simply refused to desegregate Mt. 
Pisgah elementary (apparently because of white community 
hostility, see Tr. 1271-72, A. 15 n.15).

For various reasons, the district court failed 
to carry out the principles announced in this Court's re­
mand opinion and in Swann, with the result that Shelby 
County still does not have a unitary school system.

-Li/ (Cont1 d. ) mere desegregation necessarily 
means that it achieves a better "racial balance." This is 
not the same thing, however, as a plan predicated upon 
achieving the system-wide racial ratio, or some other 
arbitrary racial ratio.

-31-



The D i s t r i c t  Court  E r r e d  In A pproving The C l o s in q  Of 
B la ck  Scno o la  On Grour.cs Of White Community H o s t i l i t y  
And »\it.iout R e q u ir in g  m o bcnool  B oard To J u s t i  fy Such 
C l o s i n g s  Witn Compelling E d u c a t i o n a l  R e a s o n s , And In 
Holding As A M a t t e r  Of Law That School Board A c t i o n s  
Which P l a c e  D i s c r im .n  i t o r y  Burdens On Xeqroes  In The
D e s e g r e g a t i o n  P r o c e s s ,  In The~Face  Of Reasonable--------
And F a i r  A l t e r n a t i v e s ,  Are h o t  C o n s t i t u t i o n a l l y -  
P r o s c r i b e d  — "

Within the very recent past defendant Board 
operated from five to seven high schools which were 
constructed and maintained for black students. (Tr.
^3-75, 1314, 1319). Now, under the plan approved 
by the district court (closing the remaining two 
black high schools), no formerly black high schools 
are in operation.il/ All of the black high school 
students who were in those schools have been assigned 
to formerly white high schools. (Tr. 1315). Thus 
the entire burden of high school desegregation has 
fallen on black people.

If all of the black high schools were inferior 
or substandard educational facilities, this might be 
a necessary burden for black people to bear, and they 
would no doubt bear it willingly for improved educational 
opportunities for their children. But the facts are 
to the contrary.

The Government's expert, Dr. Buford, reco­
mmended that Barrett's Chapel be the high school in

4 5/ .
—  F i v e  of  the s c h o o l s  (Woodstock,  Capleville, 

Shadowlawn, Mt. P isg a h  and B a r r e t t ' s  Chapel)  have 
r e t a i n e d  t h e i r  e l e m e n t a r y  o p e r a t i o n .  But o f  t h e s e ,  
o n ly  Shadowlawn has had i t s  racial i d e n t i t y  removed.

- 32-



the pairing arrangement with Bolton, because he considers 
Barrett's Chapel to be a superior high school facility, 
and because black high school students would be shoul­
dered with an unfair share of the desegregation burdens. 
(Tr. 292-93, 457-58). The Superintendent testified 
that it didn't make any difference facility-wise, 
although he thought Bolton was "probably a little 
better." (Tr. 146). Assistant Superintendent for 
Special Services, C. L. Wells, testified that the Bolton 
and Barrett's Chapel high school facilities were equal. 
(Tr. 1345). The court's expert also testified that the 
schools were equal and that either school could be the 
high school (Tr. 1319), but admitted that he personally 
preferred Barrett's Chapel as the high school because of 
the unfair burdens placed on black high school students 
in the system. (Tr. 1340).!£/

In 1969 the Superintendent testified that the 
Board could never close Mt. Pisgah high school. (Tr.
84). Yet this year, moved perhaps by the prospects 
created by Swann that actual desegregation might at

iî Theyear (which was
Barrett

Title IV Center's recommendation last 
be fore this Court on appeal) was that

Chapel be the high school (Tr. 83, 1130), and 
the Board initially preferred Barrett's Chapel as the hign scnool (Tr. 287, 1130).

-33-



last be required, the Board's plan closed Mt. Pisgah 
high school. Although Dr. Buford did not consider 
utilizing Mt. Pisgah as a high school (since he was 
limited to modifying the Board's plan), he was con­
cerned about the situation because he thought Mt.
Pisgah was an adequate high school facility and could 
be worked into a desegregation plan. (Tr. 436-41,
458-60). The Superintendent testified that Mt. Pisgah 
was equal to Bolton as a high school facility (Tr. 1150), 
and last year the Title IV Center recommended zoning 
white high school students from Germantown into Mt.
Pisgah (See 311 F. Supp. at 104). The Title IV Center 
would prefer retaining Mt. Pisgah high school if it 
could be worked into a desegregation plan. (Tr. 1340-41)

The educational justifications for closing these 
two high schools are not to be found in the record.11/

only educational justification even
l l ^ n  ^ nd ^hlchaP?ellees cite in their brief, at p. 14) is the.inferior curriculum offering at Mt. Pisaah
hi!hC«rriC?1Um disparities between Mt. Pisgah and white s^nools was drought out by Dr. Buford. (Tr. 730- 
739) inequality reflects discriminationPTr q 7 tne direct product of the dual system

^795~97’ ■ Ifc would be an anomaly indeed if the 
black m  ?ermitt?d t0 Contlnue to discriminate against 
so in Jne pasU students the ground that it did

(Tr.

doesn't 
and that 
to integ 
don't pr 
they res 
addition 
just red

The Board does also argue that Mt. Pisgah 
have enougn students with its present boundaries 
some.iow more transportation would be required 
rate Mt. Pisgah. (Tr. 75). Of course, plaintiffs 
opose to retain the present boundaries, as 
ult m  segregation. And it would not require 
al transportation to desegregate the school -- 
irecting some of the buses already in use.

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The primary justification must be something else, since 
it is not educational, and it appears to be the hostility 
of the white community to sending its youngsters to 
formerly black high schools.48/ Assistant Superintendent 
Wells testified that, in his opinion, Bolton was chosen 
as the high school rather than Barrett's Chapel to 
accomodate the white Bolton community. (Tr. I34C-47).
And the Superintendent testified that whites would 
support the high school better if it were at Bolton.
(Tr. 1146-47). With regard to Mt.. Pisgah, the court 
permitted a spokesman for the white community to 
testify in opposition to sending whites to Mt, Pisgah 
(Tr. 844-61), and the court itself was apparently of 
the view that the higher socioeconomic status of whites 
in the area would allow them to avoid sending their 
children to Mt. Pisgah. (Tr. 1271-72).

At any rate, the district court approved the 
closing of the black high schools at least in part on 
the grounds of white community hostility. (A. 15 n.15). 
And the court also approved a grade reorganization 
for Shadowlawn which placed an unfair and unnecessary 
burden on black students (see page 14, supra). In the

4 8/—  High schools occupy a higher status than 
elementary schools in the community's eyes, and also 
create more community involvement. (Tr. 1319-20). By 
the same token, high school desegregation probably also 
creates more community hostility, at least in rural 
systems where botn elementary and high school pupils 
have traditionally been bused to school.

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district court's view, however, none of these things 
raises a constitutional question.

As both Dr. Buford and the court's expert 
testified, one of the educational harms resulting from 
the dual school systems is that black and white 
youngsters were treated differently; they therefore 
perceived themselves as being different, and because our 
society was structured around whiteness, black youngsters 
perceived themselves as being inferior and white young­
sters perceived tnemselves as being superior. (Ti. 395-96 
1318-19). Both experts agreed that it was important 
that the desegregation process be fair to both blacks 
and whites (Tr. 428-29, 1283). Dr. Buford felt that 
the closing of Barrett's Chapel was discriminatory (Tr. 
435-36), and the court's expert agreed that the high 
school desegregation process had been unfair (Tr. 1317-J8) 
The court's expert also agreed that this process did 
the same thing as the dual system —  i.e., treated 
blacks differently than whites (Tr. 1318-19), and both 
agreed that these facts had an adverse effect on the 
desegregation process. (Tr. 428-29, 1318).

Although we have set forth the facts regarding 
this issue, we recognize that the district court made 
no findings as to the reasons or justifications for

49/- And defendants are of the same view (App­
ellees' Brief at 11-15). While we cannot comprehend 
much of defendants' argument in this regard, we do 
emphasize, as we emphasized to the district court 
(see, e.g. , Tr. 81-82, 1315-16) that we do not seed

(Cont'd on next pace)
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closing the black high schools. The reason for this 
failure, of course, is the fact that the district court 
did not think these facts raise a substantial consti­
tutional question. On the basis of the cases cited 
in our Motion for Summary Reversal (pp. 13-17), and 
for the reasons contained therein, we submit that this 
is a clearly erroneous view of the law. To summarize 
what we have said in our motion, the constitutional 
issues arise in several ways. (1) A former dual school 
system, with a history of racial discrimination, should 
bear a heavy burden of justification with regard to 
all actions it takes in the desegregation process which 
affect black people, particularly the closing of black 
schools and "one-way busing" plans. (2) In any event, 
a systematic pattern of closing black schools, as here, 
amounts to a racial classification which the Board, 
as in all racial classification cases, bears a very 
heavy burden to justify. (3) Actions taken in the 
desegregation process which unfairly place the burdens 
on black people, when there are available equally 
reasonable but fairer alternatives, violate the Equal 
Protection Clause for the same reasons that segregation

4 9 /— 7 (cont'd.) to retain formerly black schools 
because of their racial identity. Rather, we seek to 
retain them because the proposals to close them are 
borne out of racial discrimination and such closings, where 
there a r e  e q u a l l y  reasonable and fairer alternatives, 
place a discriminatory burden on blacks.

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is unconstitutional. Additionally, we submit, any 
desegregation plan which places disproportionate and 
unfair burdens on blacK parents and their children, 
when more equitable means are available, violates the 
Due Process Clause. Cf. Bolling v. Sharpe, 347 U.S. 497 
(1954).

district court should be reversed and this case remanded 
for proper desegregation of the SHelby County public 
schools.

Conclusion

For the foregoing reasons the judgment of the

Respectfully submitted
RATNER, SUGARMON & LUCAS

By : UJp/Jcsi+HWILLIAM E. CALDWELL
525 Commerce Title Building 
Memphis, Tennessee 38103 10

JACK GREENBERG 
NORMAN J. CHACKKIN

10 Columbus Circle
New York, New York 10019

- 38-



CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing 
Reply Brief has been served on counsel for the defendants 
and plaintiff-intervenors, Paul Hancock, Esquire, United 
States Department of Justice, Civil Rights Division, 
Education Section, Washington, D. C. 20530, Lee Winchester, 
Jr., Esquire, Suite 3200, 100 North Main Building,
Mempnis, Tennessee 38103, James A. Crislip, Esquire,
110 South Court Avenue, Memphis, Tennessee 38103, 
by United States Mail, postage prepaid, this 14th day 
of October, 1971.

UUjLkm £.
William E. Caldwell



CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing 
Reply Brief has been served on counsel for the defendants 
and plaintiff-intervenors, Paul Hancock, Esquire, United 
States Department of Justice, Civil Rights Division, 
Education Section, Washington, D. C. 20530, Lee Winchester, 
Jr., Esquire, Suite 3200, 100 North Main Building,
Mempnis, Tennessee 38103, James A. Crislip, Esquire,
110 South Court Avenue, Memphis, Tennessee 38103, 
by United States Mail, postage prepaid, this 14th day 
of October, 1971.

tuUJb~ £.William E. Caldwell