Metropolitan County Board of Education v. Kelley Supplemental Appendix to Petition for a Writ of Certiorari

    No

In T he

Supreme (Emirt of ttyz United States
O ctober Term , 1985

Metropolitan County Board Of Education Of 
N ashville A nd Davidson County Tennessee, et al„

Petitioners,

vs.

Robert W. Kelley, et al.,
Respondents.

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

FOR THE SIXTH CIRCUIT

W illiam R. W illis, J r . 
M arian F. H arrison 
W illis & Knight 
215 Second Avenue, North 

Nashville, Tennessee 37201 
(615) 259-9600
Attorneys fo r  Petitioners

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477





TABLE OF CONTENTS

Page

Supplemental Appendix A — Opinion of the Sixth
Circuit Court of Appeals dated July 27, 1982 . . ,  SA-1

Supplemental Appendix B — 479 F. Supp. 120 (1979) -
Kelley v. Metro Board of Education, et al...........  SA-38

Supplemental Appendix C — 492 F. Supp. 167 (1980) -
Kelley v. Metropolitan Cty. Bd. of E d............... . SA-62

Supplemental Appendix D — 511 F. Supp. 1363 (1981)
- Kelley v. Metropolitan Cty. Bd. of Ed., etc. . . .  SA-128

Supplemental Appendix E — Order of Sixth Circuit
Court of Appeals dated August 19, 1981.......... .. SA-155

Supplemental Appendix F — Chambers Memorandum
of Justice Stevens dated August 20, 1981 . . . . . . .  SA-157

Supplemental Appendix G — Unpublished Memoran­
dum Opinion of U. S. District Judge L. Clure 
Morton, dated June 28, 1971............ ................ SA-159

Supplemental Appendix H — 463 F. 2d 732 (1972) - 
Kelley v. Metropolitan Cty. Bd. of Ed. of 
Nashville, Tenn......... .......................................... .. • SA-179



— SA-1 —

SUPPLEMENTAL APPENDIX A 

No. 81-5370

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Robert W. Kelley, et al., 
Plain tiffs-Appellan ts, 

v.

Metropolitan County Board of 
Education of Nashville and 

Davidson County, Tennessee, 
Defendan ts-A ppellees.

Appeal from the 
United States District 
Court for the Middle
District of Tennessee.

Decided and Filed July 27, 1982

Before: EDWARDS, Chief Judge, JONES, Circuit Judge 
and CELEBREZZE, Senior Circuit Judge.

EDWARDS, Chief Judge, delivered the opinion of the 
C o u rt, in which JO N E S, C ircu it Judge, jo in ed . 
CELEBREZZE, Circuit Judge, (pp. 25-35) filed a separate opi­
nion, concurring in part and dissenting in part.

EDWARDS, Chief Judge. This much delayed school 
desegregation case is before this court for review of a desegrega­



— SA-2 —

tion plan approved by the District C ourt.1 It offers no new legal 
issues and can and must be decided by this court on the basis of 
final decisions of the United States Supreme Court. Milliken v. 
Bradley, 433 U.S. 267 (1977) (Milliken II) requires our affir­
mance of the District Court on several issues. The cases that re­
quire our reversal of two issues decided by the lower court are 
legion. Leading the list are Brown v. Board o f  Education, 347 
U.S. 483 (1954); Green v. County School Board, 391 U.S. 430 
(1968); Swann v. Charlotte-Mecklenburg Board o f  Education, 
402 U.S. 1 (1971); Keyes v. School District No. 1, 413 U.S. 189 
(1973); Penick v. Columbus Board o f  Education, 583 F.2d 787 
(6th Cir. 1978), a f f ’d, 443 U.S. 449 (1979); R eeds. Rhodes, 607 
F.2d 714 (6th Cir. 1979, cert, denied, 445 U.S. 935 (1980); and 
last but not least, Kelley v. Metropolitan Board o f  Education, 
463 F.2d 732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972).

It should be noted at the outset that this case is markedly 
distinguished in legal terms from those that have come before 
this and other courts from states where segregation by law has 
never existed or was long ago statutorily abandoned. In those 
cases, the federal courts have been primarily concerned with the 
question of whether or not predominantly black and 
predominantly white schools existed as a result of intentional 
segregative practices on the part of the school boards concern­
ed. See Reed v. Rhodes, supra; Penick v. Columbus Board o f  
Education, supra; Brinkman v. Gilligan, 583 F.2d 243 (6th Cir. 
1978), a f f ’d sub nom, Dayton Board o f  Education v. 
Brinkman, 443 U.S. 526 (1979) (Dayton II). No such inquiry is 
necessary in this case; Tennessee’s history of de jure  segregation 
is well-established.

In 1955, when litigation aimed at desegregating the Nashville 
schools began, racial segregation was constitutionally and 1

1 Kelley v. Metropolitan County Board o f Education, 511 F. Supp. 
1363 (M.D. Tenn. 1981).



— SA-3 —

statutorily mandated in Tennessee, and the School Board was in 
full compliance with those provisions. Article 11 § 12 of the 
state constitution proclaimed: “ No school established or aided 
under this section shall allow white and negro children to be 
received as scholars together in the same school,” and statutes 
consistent with this provision were enacted. See T.C.A. §§ 
49-3701 et seq. In 1956, the Tennessee Supreme Court struck 
down the statutes requiring compulsory separation of races, 
Roy v. Brittain, 297 S.W.2d 72 (Tenn. 1956), and in 1959 this 
court invalidated a new law allowing local school boards to pro­
vide white, black and mixed schools, with attendance to be 
determined by parental choice. Kelley v. Board o f  Education, 
270 F.2d 209 (6th Cir.), cert, denied, 361 U.S. 924 (1959). The 
statutes thereafter were omitted from the revised statutory com­
pilation, with the compiler’s note stating the statutes had been 
omitted because they were unconstitutional, citing to the above- 
named cases. In 1970, the Tennessee Legislature did pass a law 
mandating the public schools would be open to persons of all 
races, see Tenn. Code Ann. § 49-1770 (1977). But it was not un­
til 1978 that Tennessee’s constitution was amended to delete the 
requirement of separate schools. Finally, effective March 15, 
1979, more than twenty years after the laws were declared un­
constitutional, the Tennessee Legislature repealed the old 
school segregation statutes.

It therefore is clear that when the first “ comprehensive and 
potentially effective desegregation order” 2 was entered in this 
case in 1971, the existing racial separation in the Nashville 
schools had resulted from de jure  segregation. And despite the 
1971 plan’s potential, the record establishes and the District 
Court found that desegregation in the Nashville schools has 
never been achieved. Thus the effects of state-imposed segrega­
tion have yet to be eradicated.

2 463 F.2d at 734.



— SA-4 —

It was the School Board’s implementation of the 1971 plan 
that prevented effective desgregation, according to the District 
Court. In Kelley v. Metropolitan Board o f  Education, 463 F.2d 
732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972), this court ap­
proved the 1971 HEW-drafted desegregation remedy, which 
was based on Swann v. Charlotte-Mecklenburg, supra, and 
which attempted to achieve desegregation through zoning. 
After the plan had been in effect for one year, the Board peti­
tioned for changes, claiming hardships had arisen from the plan. 
The District Court emphatically rejected the petition, find­
ing the Board had not acted in good faith in implementing the 
desegregation remedy. Thereafter, the Board submitted pro­
posals for construction and for a kindergarten program using 
portables, which both were opposed by plaintiffs as inconsistent 
with the approved plan. Plaintiffs later petitioned that the 
Board be held in contempt for its unsanctioned implementation 
of the proposals. In 1978 the Board petitioned to amend school 
attendance zones; plaintiffs then amended their contempt peti­
tion.

In 1979, the District Court began hearings on all pending mat­
ters concerning the school system.3 From the proof presented, 
the District Court found the Nashville-Davidson County school 
system had become increasingly segregated in the years since 
1971. The original remedy had not extended throughout the 
county, and whites had been able to avoid the plan by fleeing to 
the outer reaches, leaving the inner city schools with a high 
black population. After reviewing the evidence, the District 
Court stated, “ [t]he resegregation, resulting, at least in part,

3 Several of the issues pending before the District Court when hear­
ings were resumed in 1979 still have not been heard. These pending 
matters include allegations of discriminatory faculty and staff 
assignments, charges that the defendants are in contempt of court, 
and motions for attorneys’ fees.



— SA-5 —

from the nonetheless good faith efforts of the School Board in 
the implementation of the Court’s order, amounts to a de jure 
segregation.” Kelley v. Metropolitan County Board o f  Educa­
tion, 479 F. Supp. 120, 123 (M.D. Tenn. 1979). This 
“ resegregation” was exacerbated by the Board’s institution of 
an optional transfer policy that violated the spirit of the 1971 
order and emasculated desegregation efforts, according to the 
District Court.

Judge Wiseman’s determination that desegregation has never 
been achieved in the Nashville-Davidson County school system 
is amply supported by the record, and that finding, therefore, is 
affirmed. Thus the School Board remains under its duty “ to 
eliminate from the public schools all vestiges of state-imposed 
segregation.” Swann v. Charlotte-Mecklenburg Board o f  
Education, 402 US. 1, 15 (1971).

EDUCATIONAL COMPONENTS

As a result of the 1979 hearings, the District Court ordered 
the Board to formulate a new desegregation plan “ assuming no 
parameters heretofore ordered by the Court, but with the 
primary objective of the achievement of a unitary school system 
for the entirety of Davidson County.” 479 F. Supp. at 122. 
After several proposals and in accordance with specific instruc­
tions from the District Court, see Kelley v. Metropolitan Coun­
ty Board o f  Education, 492 F. Supp. 167 (M.D. Tenn. 1980), 
the Board drafted a plan that gained the District Court’s ap­
proval. Kelley v. Metropolitan County Board o f  Education, 511
F.Supp. 1363 (M.D. Tenn. 1981). It is plaintiffs’ appeal from 
this order that is before us.

We affirm certain aspects of this plan. With regard to the 
District Judge’s orders concerning education components, we 
approve the remediation program planned by the Board of 
Education’s staff for “ those schools or classes where the 
achievement levels are below the average for the system and/or



— SA-6 —

where the majority of a school’s population is made up largely 
of socio-economically deprived children who suffer the continu­
ing effects of prior discrimination.” 511 F. Supp at 1368-69. 
Our affirmance of this issue does not depend upon the outcome 
of any other issue in this case, nor does it depend upon whether 
or not Title I federal funds are available. See Milliken v. 
Bradley, 433 U.S. 267 (1977).

Likewise, this court affirms the District Judge’s order for the 
use of West End Junior High School as a magnet school, with 
selection criteria designed to provide equal access to all races. 
Further, we affirm the District Court’s approval of the already 
launched Afro-American studies program. While we note plain­
tiffs’ objections to lack of specificity of such programs, we 
believe this is a matter that can be handled by the District Court 
and the School Board without intervention by the appellate 
court. Finally, we affirm the Distract Judge’s approval of the 
‘‘Together We Can. . . Together We Will” program.

PUPIL ASSIGNMENT COMPONENT - 
MIDDLE SCHOOLS AND HIGH SCHOOLS

In large measure, the pupil assignment components of this 
plan do not withstand constitutional scrutiny. In fashioning its 
school desegregation plan, the Board was directed by the 
District Court to bring about a 15% minimum presence of either 
race in each middle school (grades 5-8), and application of this 
standard to the high schools as well was accepted by the lower 
court. The District Court’s choice of 15% either race minimum 
presence as a desegregation standard would find acceptable 
schools that are either 85% white or 85% black. This figure is 
clearly not appropriate as a ‘‘starting point” in a school system 
that has a 68% white-32% black racial composition.4

4 At the middle school level, seven of the 24 schools are projected as 
majority black, and fully one-half would fall outside of a 15% plus or 
minus deviation from the 32% minority presence in the school system.



— SA-7 —

In Swann v. Charlotte-Mecklenburg Board o f  Education, 402 
U.S. 1, 23-25 (1971), Chief Justice Burger wrote for a 
unanimous Supreme Court as follows:

In this case it is urged that the District Court has impos­
ed a racial balance requirement of 71%-29% on individual 
schools. The fact that no such objective was actually 
achieved - and would appear to be impossible - tends to 
blunt that claim, yet in the opinion and order of the 
District Court of December 1, 1969, we find that court 
directing

“ that efforts should be made to reach a 71-29 ratio in the 
various schools so that there will be no basis for conten­
ding that one school is racially different from the others . . 
. . [t]hat no school [should] be operated with an all-black 
or predominantly black student body, [and] [t]hat pupils 
of all grades [should] be assigned in such a way that as 
nearly as practicable the various schools at various grade 
levels have about the same proportion of black and white 
students.”

The District Judge went on to acknowledge that varia­
tion “ from that norm may be unavoidable.” This contains 
intimations that the “ norm” is a fixed mathematical racial 
balance reflecting the pupil constituency of the system. If 
we were to read the holding of the District Court to re­
quire, as a matter of substantive constitutional right, any 
particular degree of racial balance or mixing, that ap­
proach would be disapproved and we would be obliged to 
reverse. The constitutional command to desegregate 
schools does not mean that every school in every communi­
ty must always reflect the racial composition of the school 
system as a whole.

As the voluminous record in this case shows, the 
predicate for the District Court’s use of the 71°7o-29% ratio 
was twofold: first, its express finding, approved by the 
Court of Appeals and not challenged here, that a dual



— SA-8 —

school system had been maintained by the school 
authorities at least until 1969; second, its finding, also ap­
proved by the Court of Appeals, that the school board had 
totally defaulted in its acknowledged duty to come forward 
with an acceptable plan of its own, notwithstanding the pa­
tient efforts of the District Judge who, on at least three oc­
casions, urged the board to submit plans.8 As the state­
ment of facts shows, these findings are abundantly sup­
ported by the record. It was because of this total failure of 
the school board that the District Court was obliged to 
turn to other qualified sources, and Dr. Finger was 
designated to assist the District Court to do what the board 
should have done.

(footnotes 7 and 9 omitted).
We see therefore that the use of mathematical ratios was 

no more than a starting point in the process of shaping a 
remedy, rather than an inflexible requirement. From that 
starting point the District Court proceeded to frame a 
decree that was within its discretionary powers, as an 
equitable remedy for the particular circumstances. As we 
said in Green, a school authority’s remedial plan or a 
district court’s remedial decree is to be judged by its effec­
tiveness. Awareness of the racial composition of the whole 
school system is likely to be a useful starting point in shap­
ing a remedy to correct past constitutional violations. In 
sum, the very limited use made of mathematical ratios was 
within the equitable remedial discretion of the District 
Court.

8 The final board plan left 10 schools 86% to 100% Negro and yet 
categorically rejected the techniques of pairing and clustering as part 
of the desegregation effort. As discussed below, the Charlotte board 
was under an obligation to exercise every reasonable effort to remedy 
the violation, once it was identified, and the suggested techniques are 
permissible remedial devices. Additionally, as noted by the District 
Court and Court of Appeals, the board plan did not assign white 
students to any school unless the student population of that school 
was at least 60% white. This was an arbitrary limitation negating 
reasonable remedial steps.



SA-9 —

As mentioned earlier, this record shows the black-white pupil 
ratio in the Nashville-Davidson County school system to be 
68% white and 32% black. It is that ratio the District Court 
should have employed as the “ starting point’’ in the remedy- 
fashioning process.

The District Judge selected the admittedly arbitrary 15% 
either race figure because “ it seem[ed] to represent a reasonable 
attempt to provide intercultural and interracial contact as a 
foundation for social harmony.’’ 492 F. Supp. at 193. This 
selection, and such other errors as we find in the District Court’s 
opinions and orders, originate with his apparent conclusion that 
the unanimous opinion of the Supreme Court in Swann has 
somehow been overruled or eroded. But the disposition of cases 
originating in this and other circuits does not support any such 
conclusion. In fact, Swann was strongly reaffirmed by the 
Supreme Court’s approval of this court’s opinion in Penick v. 
Columbus Board o f  Education, 583 F.2d 787 (6th Cir. 1978), 
a ff’d, 443 U.S. 449 (1979). The Swann opinion is the law of the 
land. And this court, the District Court for the Middle District 
of Tennessee, and the School Board of Nashville and Davidson 
County are required by our constitutional form of government 
to follow its standards. In accordance with those standards, the 
District Judge will be required on remand of this case to deter­
mine the currently prevailing racial population of the school 
system concerned and to employ that ratio as a “ useful starting 
point in shaping a remedy to correct past constitutional viola­
tions.”

We approve all other aspects of the middle school and high 
school plans, recognizing, of course, that rejection of the 15% 
either race minimum presence as a desegregation standard will 
necessarily involve significant redrafting and restructuring. 
Whenever the Swann discussion set out above requires revision 
of these school plans, such revisions must be made. We note our 
awareness that this instruction encompasses Swann’s recogni­



— SA-10 —

tion that there is no constitutional right to any “ particular 
degree of racial balance.” But we also recognize that 
predominantly one-race schools deserve “ close scrutiny” and 
that the duty on the Board and courts to dismantle a dual 
system is clear:

The district judge or school authorities should make 
every effort to achieve the greatest possible degree o f  ac­
tual desegregation and will thus necessarily be concerned 
with the elimination of one-race schools. No perse  rule can 
adequately embrace all the difficulties of reconciling the 
competing interests involved; but in a system with a history 
o f  segregation the need fo r  remedial criteria o f  sufficient 
specificity to assure a school authority’s compliance with 
its constitutional duty warrants a presumption against 
schools that are substantially disproportionate in their 
racial composition. Where the school authority’s proposed 
plan for conversion from a dual to a unitary system con­
templates 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 non- 
discriminatory. The court should scrutinize 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.

Swann, supra at 26. (emphasis added).

In line with this duty, we suggest the formula employed by 
this court in the Columbus case, i.e., use of a 15% plus or minus 
deviation from the 68-32% white-black ratio for all students in 
the schools system.5

5 An essential element of the plan on remand thus will include 
“reassigning students to achieve the greatest possible number of



— SA-11 —

PUPIL ASSIGNMENT COMPONENT - GRADES K-4

The District Court directed the Board “ to establish a system 
of K-4 or K-5 [Kindergarten through fourth or fifth grade] 
elementary schools of a neighborhood character, all the while

desegregated schools.” See Liddell v. Board o f Education o f City o f 
St. Louis, 667 F.2d 643 (8th Cir. 1981). We reemphasize that we are 
not requiring any precise degree of racial mixing, but we are requiring 
the District Court to use all feasible methods of pupil assignment to 
achieve the maximum amount of integration possible.

A directive to employ a racial balancing approach clearly is 
anything but novel. For example, this court in Northcross v. Board o f  
Education o f Memphis City Schools, 466 F.2d 890 (6th Cir. 1972), 
cert, denied, 410 U.S. 926 (1973), approved the District Judge’s view 
that Swann required more “intensified desegregation efforts” for 
Memphis than a neutral geographic zone assignment plan and his con­
comitant order of busing to achieve racial balance. We stated:

It is thus clear that far from having achieved a unitary school 
system, the Board has helped to perpetuate the old dual system. 
Under these circumstances there can be no doubt that the 
District Court was under an obligation to order the adoption o f  
a plan providing for further desegregation. Since many of the 
one-race schools are clearly the result of discriminatory actions 
of the School Board there can be no doubt that under any inter­
pretation o f Swann the elimination o f such schools must be one 
o f the objectives o f any appropriate desegregation plan.

Id. at 893-94 (emphasis added).

It is beyond dispute that Nashville has never achieved unitary status, 
in large part because of the Board’s implementation of the 1971 plan. 
We do not believe the District Court and Board fulfilled their duties to 
eliminate one-race schools by accepting as desegregated 85% black 
and 85% white schools.

We recognize our directive to the District Court in this case is quite 
specific. Our specificity, however, is made necessary by our view that 
“a plan that at this late date fails to provide meaningful assurance of 
prompt and effective disestablishment of a dual system is . . . in­
tolerable.” Green v. County School Board, 391 U.S. 430, 438 (1968).



— SA-12

maximizing opportunities for integration in a neighborhood set­
ting.” 6 The Board complied, and this plan was approved by the 
District Court. This was fundamental error, unconstitutional 
under Brown v. Board o f  Education, 347 U.S. 483 (1954); 
Green v. County School Board, 391 U.S. 430 (1968); Swann v. 
Charlotte-Mecklenburg Board o f  Education, 402 U.S. 1 (1971); 
Keyes v. School District No. 1, 413 U.S. 189 (1978); Penick v. 
Columbus Board o f  Education, 443 U.S. 449 (1979), and 
Dayton Board o f  Education v. Brinkman, 443 U.S. 526 (1979). 
All of these cases have held or implied that the constitutional 
barrier to racially segregated schools applies to all schools in the 
system, including the early grades.

In this case, the District Judge’s order would serve to 
resegregate or to maintain segregation in grades K-4. Forty- 
seven of the 75 elementary schools would be more than 90% one 
race, with 14 schools projected as more than three-fourths 
black.

The District Judge based his directive on the perceived 
benefits of a neighborhood school system for elementary 
students, noting the desirability of parent-teacher contact, 
reduced pupil-teacher ratios, and other “ educational” advan­
tages.7 In Swann, Chief Justice Burger considered pro­
neighborhood arguments, presumably similar to those influenc­
ing the District Judge in this case, and found them wanting:

6 511 F. Supp. at 1371.

7 The importance of desegregated schools, however, particularly for 
minority students, was recently emphasized by the Supreme Court:

Education has come to be “a principal instrument in awakening 
the child to cultural values, in preparing him for later profes­
sional training, and in helping him to adjust normally to his en­
vironment.” Brown v. Board o f Education, 347 U.S. 483, 493 
(1954). When that environment is largely shaped by members of 
different racial and cultural groups, minority children can



— SA-13 —

Washington v. Seattle School District, 50 U.S.L.W . 4998, 5002 
(June 30, 1982).

Absent a constitutional violation there would be no basis 
for judicially ordering assignment of students on a racial 
basis. All things being equal, with no history of discrimina­
tion, it might well be diseirable to assign pupils to schools 
nearest their homes. But all things are not equal in a system 
that has been deliberately constructed and maintained to 
enforce racial segregation. The remedy for such segrega­
tion may be administratively awkward, inconvenient, and 
even bizarre in some situations and may impose burdens 
on some; but all awkwardness and inconvenience cannot 
be avoided in the interim period when remedial ad­
justments are being made to eliminate the dual school 
systems.

No fixed or even substantially fixed guidelines can be 
established as to how far a court can go, but it must be 
recognized that there are limits. The objective is to disman­
tle the dual school system. “ Racially neutral” assignment 
plans proposed by school authorities to a district court 
may be inadequate; such plans may fail to counteract the 
continuing effects of past school segregation resulting 
from discriminatory location of school sites or distortion 
of school size in order to achieve or maintain an artificial 
racial separation. When school authorities present a 
district court with a “ loaded game board,” affirmative ac­
tion in the form of remedial altering of attendance zones is

achieve fheir full measure of success only if they learn to func­
tion in—and are fully accepted by—the larger community. At­
tending an ethnically diverse school may heip accomplish this 
goal by preparing minority children “ for citizenship in our 
pluralistic society,” Estes v. Metropolitan Branches o f the 
Dallas NAACP, 444 U.S. 437, 451 (1980) (Powell, J., dissen­
ting).



— SA-14

proper to achieve truly non-discriminatory assignments. In 
short, an assignment plan is not acceptable simply because 
it appears to be neutral.

402 U.S. at 28.

It is thus clear from Swann that no matter whether 
neighborhood schools may be desirable on some grounds, their 
advantages cannot outweigh the constitutional requirement to 
desegregate the schools.8

The unanimous Swann opinion also dealt squarely with the 
issue of busing, another concern of the District Judge in this 
case:

(4) Transportation o f  Students

The scope of permissible transportation of students as 
an implement of a remedial decree has never been defined 
by this Court and by the very nature of the problem it can­
not be defined with precision. No rigid guidelines as to stu­
dent transportation can be given for application to the in­
finite variety of problems presented in thousands of situa­
tions. Bus transportation has been an integral part of the

8 In the Supreme Court’s latest consideration of the neighborhood 
school concept, the majority struck down a statewide initiative 
adopted by the voters of the state of Washington that would have re­
quired limiting school attendance to those students residing in the 
neighborhood of the school concerned. While the majority decision 
was joined by five Justices, the four dissenters emphasized that they 
disagreed because there was no “ affirmative duty to integrate the 
schools in the absence of finding of unconstitutional segregation.” 
Washington v. Seattle School District, 50 U.S.L.W. 4998 (June 30, 
1982). In so doing, the four dissenters cited with approval the case 
upon which this opinion strongly relies, Swann, supra.

Thus we read Washington v. Seattle School District as unanimous 
on the crucial issue in our present Nashville case.



— SA-15 —

public education system for years, and was perhaps the 
single most important factor in the transition from the 
one-room schoolhouse to the consolidated school. Eigh­
teen million of the Nation’s public school children, ap­
proximately 39%, were transported to their schools by bus 
in 1969-1970 in all parts of the country.

The importance of bus transportation as a normal and 
accepted tool of educational policy is readily discernible in 
this and the companion case, Davis, supra." The Charlotte 
school authorities did not purport to assign students on the 
basis of geographically drawn zones until 1965 and then 
they allowed almost unlimited transfer privileges. The 
District Court’s conclusion that assignment of children to 
the school nearest their home serving their grade would not 
produce an effective dismantling of the dual system is sup­
ported by the record. 11

11 During 1967-1968, for example, the Mobile board used 207 
buses to transport 22,094 students daily for an average round 
trip of 31 miles. During 1966-1967 , 7,116 students in the 
metropolitan area were bused daily. In Charlotte-Mecklenburg, 
the system as a whole, without regard to desegregation plans, 
planned to bus approximately 23,000 students this year, for an 
average daily round trip of 15 miles. More elementary school 
children than high school children were to be bused, and four 
and five-year-olds travel the longest routes in the system.

Thus the remedial techniques used in the District Court’s 
order were within that court’s power to provide equitable 
relief; implementation of the decree is well within the 
capacity of the school authority.

The decree provided that the buses used to implement 
the plan would operate on direct routes. Students would be 
picked up at schools near their homes and transported to 
the schools they were to attend. The trips for elementary



— SA-16 —

school pupils average about seven miles and the District 
Court found that they would take “ not over 35 minutes at 
the most.” 12 This system compares favorably with the 
transportation plan previously operated in Charlotte under 
which each day 23,600 students on all grade levels were 
transported an average of 15 miles one way for an average 
trip requiring over an hour. In these circumstances, we 
find no basis for holding that the local school authorities 
may not be required to employ bus transportation as one 
tool of school desegregation. Desegregation plans cannot 
be limited to the walkin school.

12 The District Court found that the school system would have 
to employ 138 more buses than it had previously operated. But 
105 of those buses were already available and the others could 
easily be obtained. Additionally, it should be noted that North 
Carolina requires provision of transportation for all students 
who are assigned to schools more than one and one-half miles 
from their homes. N. C. Gen. Stat. § 115-186(b) (1966).

Swann, supra at 29-31.

An objection to transportation of students may have 
validity when the time or distance of travel is so great as to 
either risk the health of the children or significantly imp­
inge on the educational process. District courts must weigh 
the soundness of any transportation plan in light of what is 
said in subdivision (1), (2), and (3) above. It hardly needs 
stating that the limits on time of travel will vary with many 
factors, but probably with none more than the age of the 
students. The reconciliation of competing values in a 
desgregation case is, of course, a difficult task with many 
sensitive facets but fundamentally no more so than 
remedial measures courts of equity have traditionally 
employed.



— SA-17

The Court’s approval of transportation for elementary 
students illustrates the fact that these groups of children are not 
automatically or easily exempted from a busing program. Only 
when “ the time or distance of travel is so great as to either risk 
the health of the children or significantly impinge on the educa­
tional process” should elementary children be omitted from a 
busing plan. No such showing was made or required by the 
District Court in this case.9

9 The Circuit Courts generally have disapproved desegregation 
plans that do not include all grades in the school system, often noting 
that Brown v. Board o f Education itself involved segregated elemen­
tary schools. “ It is axiomatic that black students, particularly in the 
elementary grades, suffer irreparable harm from the maintenance of a 
segregated school system.” United States v. School District o f Fern- 
dale, 577 F.2d 1339 (6th Cir. 1978). In Haycraft v. Board o f Educa­
tion, 585 F.2d 803, 805 (6th Cir. 1979), cert, denied, 443 U.S. 915 
(1979), this court rejected a plan that exempted first-graders from bus­
ing, saying, “To exempt first grade students from busing would leave 
vestiges of segregation intact contrary to this Court’s mandate.’ The 
District Court found that first graders would be subject to “ a high risk 
of failure” if forced to participate in a busing program, but this court 
found such arguments an insufficient basis for exclusion. In Lee v. 
Macon County Board o f Education, 616 F,2d 805 (5th Cir. 1980), the 
Fifth Circuit disapproved a neighborhood school plan in a case much 
like Kelley. In Lee, grades K-5 would attend neighborhood schools 
with the result that two-thirds of elementary black students would at­
tend schools more than 95°7o black. The District Judge had based his 
remedy on findings that attending a school near home was important 
for young children and that pairing would interfere with individualized 
instruction. The appellate court held these reasons “ legally insuffi­
cient.”

If the decision were ours initially, we might pay greater heed to 
the education disadvantages of the rapid dismantling of a dual 
school system. We may not, however, weigh advantages against 
disadvantages, for that judicial balancing has already been ac­
complished. The law orders eradication of all vestiges of the 
dual system, if some feasible plan can be devised.

616 F.2d at 811 (citing Swann at 15).



— SA-18

footnote 9 continued
The court said despite the school board’s “ apparent good faith at­
tempt to desegregate in 1970,” the system had never become a unitary 
one. Therefore, the duty to dismantle the dual school system con­
tinued, and residential patterns could not serve to justify racial im­
balance. In rejecting the District Court’s plan, the Lee court noted 
that the temporary or permanent presence of one or more racially 
identifiable elementary schools, or even an omission of some of the 
earlier grades from a busing program, might be permissible. It stressed 
the need, however, for detailed fact-findings indicating the cir­
cumstances motivating “ any variations from complete desegregation 
of Tuscaloosa’s schools.” Id. at 812.

Numerous other courts have reached similar conclusions. In Keyes 
v. School District No. 1, 521 F.2d 465 (10th Cir. 1975), cert, denied, 
423 U.S. 1066 (1976), the Tenth Circuit rejected a “ part-time” 
desegregation program for elementary students. The District Court 
had permitted children to spend part of the school day at their 
neighborhood schools, citing a need for recreational, extra-curricular 
and parental activities. In disapproving this plan, the appeals court 
stated, “although we acknowledge such neighborhood contact to be 
important, we cannot place it above the constitutional rights of 
children to attend desegregated schools. We perceive those rights to 
include full-time attendance in a desegregated setting.” Keyes at 478. 
See also Adams v. United States, 620 F.2d 1277 (8th Cir.), cert, 
denied, 449 U.S. 826 (1980); Anderson v. Dougherty City Bd. o f 
Educ., 609 F.2d 225 (5th Cir. 1980); Mills v. Polk County Bd. o f 
Educ., 575 F.2d 1146 (5th Cir. 1978); United States v. Texas Ed. 
Agency, 532 F.2d 380 (5th Cir.), vacated and remanded on other 
grounds, 429 U.S. 990 (1976), concepts reaffirmed, 564 F.2d 162 (5th 
Cir. 1977); Clark v. Bd. o f Educ., 465 F.2d 1044 (8th Cir. 1972), cert, 
denied, 413 U.S. 923 (1973); and Flax\. Potts, 464 F.2d 865 (5th Cir. 
1972), cert, denied, 409 U.S. 1007 (1972).

Also instructive is the Supreme Court’s treatment of Estes v. 
Metropolitan Branches o f the Dallas NAACP, 444 U.S. 437 (1980) 
(opinion below at 572 F.2d 1010). The Fifth Circuit had rejected the 
District Court’s plan for desegregating Dallas on the basis that it left 
existing a large number of one-race schools (defined as more than 
75% one-race). Under the District Court’s plan, grades K-3 remained 
in neighborhood schools, and no busing of high school students was 
ordered; these limitations were largely based on the District Court’s 
concerns over resegregation, community support, and the social and 
educational consequences of extensive busing. The Fifth Circuit 
remanded and ordered the court to rezone or to provide time and



— SA-19

In sum, while neighborhood schools may be desirable in a 
school system free of a history of segregation, where such a 
history exists, a plan must do more; it must make “ every effort 
to achieve the greatest possible degree of actual desegregation.” 
Some inconvenience and even awkward remedies may be 
necessary where neutral assignment plans fail to desegregate the 
schools.10

Because the remedy leaves elementary schools highly 
segregated, the District Court’s approval of a neighborhood 
school plan for grades K-4 is rejected. On remand, the District 
Judge is instructed to include these children within a pupil 
assignment program drafted in compliance with this opinion, 
except where inclusion would “ risk the health of the children or 
significantly impinge on the educational process” within the 
meaning of Swann.

It appears to this court that Nashville has some great advan­
tages for solving the desegregation problem. It is a far more 
compact city than, for example, Cleveland or Detroit, and in 
general, the schools in need of desegregation are centrally 
located. Of equally great importance, the school system is

footnote 9 continued
distance studies that would explain failure to use pairing and cluster­
ing or busing to eliminate one-race schools through further busing” ; 
however, the writ was later dismissed as improvidently granted. 
Justices Powell, Rehnquist and Stewart dissented from the dismissal, 
stressing a need to affirm the District Court’s “ sensitive” and “ pro­
mising” plan. The dismissal, however, indicates the remaining 
members of the court disagreed. The withdrawal of certiorari sug­
gests, particularly in the fact of the dissent, that the majority approved 
the Fifth Circuit’s handling of the District Court’s plan. In line with 
the Fifth Circuit, we are ordering the lower court to eliminate as far as 
possible the one-race or virtually one-race schools and to explain with 
“ time and distance studies” or by reference to “ natural boundaries or 
traffic patterns” why elimination is not feasible for any remaining 
schools.

10 See Swann, supra at 28.



— SA-20 —

organized on a Davidson County-wide basis. We approve the 
Board’s and District Court’s intention to apply the desegrega­
tion plan to the entire county.

As we have shown above, we are convinced the District 
Court’s approval of the Board’s plan was legal error.11 In addi­
tion, we recognize the lower court’s approval was based in part 
on a conviction, with which we take issue, that desegregation 
has not advanced the educational achievement levels of black 
children and that it is a serious “ education cost” in the elemen­
tary grades. It was largely for these reasons, along with a fear of 
increased “ white flight,” 11 12 that Judge Wiseman was persuaded 
to deviate from a Swann-type remedy. See 492 F. Supp. at 
189-92. While doubtless the jury on the educational benefits of 
desegregation will be out for a long time, recent findings in­
dicate results directly contrary to the views expressed by the 
District Judge. Some of this material is very current and 
therefore was unavailable to Judge Wiseman at the time his opin­
ions were written.13 We note these findings only because of the 
District Court’s strong reliance on this matter. We also note and 
take this opportunity to remind the District Court that the issue 
of achievement scores is constitutionally irrelevant in a school 
system with a history of illegal segregation.

11 The dissent suggests that we have not employed an abuse of 
discretion standard in reviewing the District Court’s plan. “ Improper 
application of the law, however, is itself an abuse of discretion. An 
appellate court may reverse if the decision below was based on an er­
roneous view of the law. . . . ” United States v. School District o f 
Ferndale, 577 F.2d 1339 (6th Cir. 1978).

12 Where the Board and court are under a duty to dismantle a dual 
system, white flight cannot be used to justify a failure to meet the 
obligation. In United States v. Scotland Neck Board o f Education, 
407 U.S. 484, 491 (1972), the Supreme Court states: “ While this 
development [white flight] may be cause for deep concern to the 
respondents, it cannot, as the Court of Appeals recognized, be ac­
cepted as a reason for achieving anything less than complete uprooting 
of the dual public school system.”

13 These findings can be found in the Appendix to this opinion.



SA-21 —

REMAINING ISSUES

We now turn to other issues advanced by plaintiffs’ appeal. 
First, it is urged that the approved plan places a dispropor­
tionate burden of busing on black middle school students. Any 
intentional effort to make the transportation burden fall more 
heavily on one race than on the other would, of course, be 
violative of basic constitutional law. Many factors, however, 
must be taken into account in working out a practical assign­
ment system, including availability of schools, locations of 
schools, ease of travel between specific neighborhoods and 
specific schools, and the facilities for education existing in such 
schools. By mentioning these factors, we do not by any means 
attempt to exhaust the list; the foregoing are cited purely for il­
lustration. With regard to the plaintiffs’ middle school busing 
burden issue, we are unable to find the District Judge’s disposi­
tion of this issue either clearly erroneous as to facts or in viola­
tion of law. It is obvious, however, that our rejection of the 
15% either race minority presence as a desegregation standard 
will necessitate a substantial revision of the middle school bus­
ing program. Thus, the above is suggested as guidance to the 
District Judge in weighing a new plan.

Plaintiffs also urge the retention of Pearl High School as a 
senior high, objecting to its use as a middle school under the 
Board’s plan. We, like the District Judge, sympathize with 
plaintiffs’ argument for retention of Pearl as a high school 
because of its “ historic contribution to the black community of 
Nashville,” 492 F. Supp. at 184. We do not find, however, that 
the School Board’s decision, as affirmed by the District Judge, 
to convert Pearl into a middle school and to build a new Pearl- 
Cohn comprehensive high school to be based on clearly er­
roneous findings or founded in a racially discriminatory pur­
pose. Under these circumstances, we are not empowered to 
overturn the apparently nondiscriminatory educational decision 
here involved.



— SA-22 —

As to plaintiffs’ last issues, however, we feel quite differently. 
Plaintiffs’ argument that faculty and staff assignments have 
been made on a racially discriminatory basis should long ago 
have been the subject of hearing and decision. Faculty 
desegregation is a considerably easier task than is overall 
desegregation of schools. Similarly, we believe that there long 
ago should have been a hearing on plaintiffs’ motion for at­
torneys’ fees and expenses. Finally, we observe that plaintiffs’ 
charges of contempt against the defendants should not be left in 
limbo.

From this distance, we can make no judgment on these mat­
ters since no factual record has been written. The District 
Court, however, should give prompt attention to all three of 
these issues. The delays in this case suggest that absolute priority 
be accorded to this litigation until a unitary system has been 
achieved.

The dissent in this case is in utter disregard of the Supreme 
Court’s interpretation of the Constitution of the United States 
in such cases as Brown, supra; Green, supra; Swann, supra; 
Keyes, supra; Penick v. Columbus Bd. o f  Educ., supra; and 
Dayton II, supra. It goes without saying that this court is re­
quired to follow constitutional law as defined by the Supreme 
Court of the United States. Marbury v. Madison, 5 U.S. (1 
Cranch) 137 (1803); Cooper v. Aaron, 358 U.S. 1 (1958).

The judgment of the District Court is affirmed in part, reversed 
in part, and remanded for proceedings not inconsistent with this 
decision.

APPENDIX

After this case was argued in this court, a study made under 
the auspices of Vanderbilt University and now published in the 
nine volume Assessment of Current Knowledge About the 
Effectiveness of School Desegregation Strategies (Vander­



— SA-23 —

bilt Univ. 1981) [hereinafter cited as D esegregation  
Strategies] was released. The Vanderbilt project was financed 
with federal funds and incorporates the work of nationally pro­
minent experts in the school desegregation field. It concludes 
that desegregation raises the level of black achievement, with 
specific findings on the Nashville schools, and emphasizes the 
importance of including primary grades in a desegregation plan. 
Significant findings include the following:

1. “ It seems reasonably clear that minority children who 
attend school with white children perform better on stan­
dardized achievement tests than do children who attend 
segregated schools.” 2 Desegregation Strategies at 33. 
See also Crain & Mahard, Desegregation and Black 
Achievement: A  Reivew o f  the Research, 42 Law & Con- 
temp. P rob. 17 (Summer 1978). For example, a study of 
Nashville elementary schools revealed that black children’s 
test scores rose an average of .28 when placed in 
desegregated schools. This amounts to a little over 3/10ths 
of a grade level and was termed a “ sizeable” achievement 
gain. 5 Desegregation Strategies at 184. It also is 
estimated that desegregation tends to raise black achieve­
ment by approximately four IQ points.

2. To boost achievement, desegregation must occur in 
the early grades.

The findings that strong effects of desegregation 
occur in the earliest grades are a strong argument 
against delaying desegregation past grade one. Only a 
few school systems leave the early primary grades 
segregated; the most significant is Dallas. Our 
analysis indicates that this is a very unfortunate 
policy. Many school systems leave kindergarten 
students segregated. This analysis suggests it would be 
academically very beneficial to include minority 
kindergarten students in a desegregation plan.



SA-24 —

Id. at 185.

The study concludes that desegregation “ creates a sudden 
burst of achievement growth’’ during the early grades and 
that after that time, desegregated students maintain but do 
not increase this higher level of achievement. The study 
also notes, “ [N]o desegregation plan where elementary 
grades are excluded can effectively reduce racial isolation. 
Moreover, the research suggests that desegregation at early 
grades holds the greatest promise for improving race rela­
tions, increasing minority achievement and ultimately 
reducing racial prejudice.’’ Id. at 70.

3. Racial proportions in the school are related to 
achievement. The study suggests that minority students 
score higher when they are in predominantly anglo 
classrooms; however, it is important that more than a 
small number of minority students attend majority 
schools. Where minority students comprise less than 15% 
of the school’s population, little mixing of races occurs, 
and where blacks make up less than 20% of a high school’s 
population, black male achievement suffers. Id. at 115, 
173, 186 and 196.

4. Where a school district is organized on a county-wide 
basis, as is the Nashville-Davidson County school system, 
“ white flight” has much less long-term impact on the 
schools, Id. at 47.

A 1981 study by the National Assessment of Educational Pro­
gress, a federally sponsored group that annually tests 9-, 13- and 
17-year-olds, reports that black achievement scores have in­
creased significantly over the past 10 years. In an assessment of 
reading performance, the study found that while black students 
still scored below white students, they had narrowed the gap 
considerably. For example, 9-year-old black students were 14.2 
percentage points below the national norm in 1971 in literal



— SA-25 —

comprehension, but in 1980 black students were only 7.1 
percentage points below the national average. This result was 
achieved in the fact of an overall achievement gain for all tested 
students. Black students scored achievement gains at all three 
age groups, although increases were more significant for the 
9-and 13-year-olds than for the 17-year-oids.

This black achievement gain extends from reading into other 
disciplines, according to Burton & Jones, Recent Trends in 
Achievement Levels o f  Black /W hite Youth, Educational 
Researcher (April 1982). That article analyzes tests ad­
ministered over five subject areas form 1969 to 1980 by the Na­
tional Assessment of Educational Progress and concludes:

For the learning areas other than writing, the average dif­
ference between white and black 9-year-olds has shrunk 
from about 17 percentage points to 10 or 11 over the 1970s. 
At age 13 (Figure 5) methematics is relatively the most dif­
ficult area for black students. For the areas other than 
mathematics, means for 13-year-old black students were 17 
to 18 percentage points below those for white students in 
1970, but only 12 to 13 points below by 1980. A decrease in 
the difference between white and black students over time 
is evidence at both ages.

# * *

Typically, when achievement for white students has declined, 
that for black students has declined less; when whites have 
improved, blacks have improved more. The difference be­
tween the races has decreased at both ages in mathematics, 
science, reading, writing and social studies.

Id. at 11-12, 14.

Neither the National Assessment project nor authors Burton 
and Jones go so far as directly to attribute black achievement 
gains to desegregation. It is stated, however, that the findings



— SA-26 —

“ cast doubt on judgments that these social programs have failed.” 
Burton and Jones, supra at 10.

These recent studies, published after the District Judge’s deci­
sion, undercut his finding that the black-white achievement gap 
has narrowed only “ slightly”  and that improvement had 
plateaued in 1975. See 492 F. Supp. at 190-91 n. 46. On the con­
trary, the impact of these studies is that desegregation raises the 
level of black achievement.

Celebrezze, J., concurring in part and dissenting in part.

I concur in the majority’s decision to affirm the educational 
components of the district court’s plan: the establishment of 
remediation programs, the creation of a magnet school at West 
End Junior High School, and the development of an Afro- 
American studies program. I disagree, however, with my 
distinguished colleagues and the portion of the decision that 
reverses the district court’s pupil assignment plans. After a 
careful reading of the record in this case, I believe that the 
Davidson County community, the board of education, and the 
district judge are making significant progress towards affording 
a constitutionally acceptable educational system and that this 
court should allow the local community and federal court to 
proceed with their innovations and programs. In my view, the 
district court did not make clearly erroneous findings of fact 
and did not abuse its discretion in forming its remedy.

I.

This appeal is part of a desegregation case which has spanned 
a generation and raises issues concerning the breadth of the 
district court’s discretion and the scope of this court’s review. A 
brief examination of the district court’s conclusions is, 
therefore, necessary.



— SA-27 —

In 1971, after sixteen years of litigation, the district court 
adopted a comprehensive desegregation plan which required an 
“ ideal student ratio”  of 15 to 35 percent black students in each 
school and ordered substantial additional busing for the 1971-72 
academic year. This court affirmed the 1971 order, reasoning 
that the decision was within the discretion of the district court. 
Kelley v. Metropolitan County Board o f  Education, 463 F.2d 
732 (6th Cir. 1972). The litigation continued intermittently 
through the 1970’s and, in 1979, the district court ordered the 
parties to reconsider the 1971 desegregation plan in light of the 
disparate busing burdens, the need to expand the georgraphic 
scope of the remedy, and changes in the racial composition of 
and distribution in the community.

This district court held extensive hearings concerning the ef­
fectiveness of the 1971 remedy. The school board established a 
citizens’ advisory panel and a planning team which included 
outside consultants; after a series of public meetings, the board 
proposed a new desegregation plan. The plaintiffs responded 
with objections, recommendations, and suggestions for the 
district court. The district court heard expert testimony and 
considered various studies concerning test scores, transporta­
tion burdens, and white flight, as well as the social, economic, 
and educational costs of competing desegregation plans.

In evaluating the possible desegregation remedies, the district 
court made extensive findings of fact. The court found that the 
Nashville and Davidson County school system had experienced 
significant white flight under the 1971 busing order.1 The court 
further found that white flight was expected to continue so that 1

1 The extent of white flight under the 1971 busing remedy has ap­
parently been substantial. In June, 1971, 66,393 white students attended 
Metropolitan Nashville schools; in June, 1979, the number had drop­
ped to 44,295. Based on several empirical studies, the district court 
concluded that the decline was, at least in part, the result of white 
flight and the resegregation from the 1971 busing order. 492 F. Supp. 
at 189-90; 479 F. Supp. at 122-123.



— SA-28 —

25 to 30 percent of the county’s elementary school children 
would be in private schools by the middle or late 1980’s. It em­
phasized that the flight stemmed largely from the public’s 
perception that the system’s educational quality was poor. Sec­
ond, the court found that although test scores for black and 
white pupils had improved under the 1971 plan, the gap between 
the scores of the two groups had remained constant. Third, the 
district court found that the school board’s proposed desegrega­
tion plan placed a disparate burden on black children, especially 
those in the early elementary grades, by requiring that black 
children be bused in numbers disproportionate to their share of 
the population. Fourth, the district court found that extensive 
busing plans would have substantial social, economic, and 
educational costs. 492 F. Supp. at 189-92; 479 F. Supp. at 
122-23.

Based on these findings, the district court outlined specific 
guidelines for a new desegregation plan for the county. Initially, 
the court extended the geographic reach of the plan to include 
the entire county.2 It ordered the school board to send children 
in grades K to 4 to neighborhood schools, maximizing the 
desegregation within this limitation.3 It ordered that in grades 5

2 Because of the vast distances in Davidson County, the district 
court limited the 1971 busing remedy to the densely populated core of 
the County. After finding that this limitation was hindering the im­
plementation of an effective desegregation remedy, the district court 
ordered the school board in 1979 to devise a new plan which extended 
the geographic scope of the busing plan. 479 F. Supp. at 122-23.

3 In deciding that children in grades K to 4 should go to 
neighborhood schools, the district court noted that “ an objection to 
transportation of students may have validity when the time or distance 
of travel is so great as to either risk the health of the children or 
significantly impinge on the educational process.” Swann v. 
Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 30-31 (1971). 
The district court relied on its detailed findings of fact and concluded 
that neighborhood schools were necessary for children in grades K to 
4.



— SA-29 —

to 8, the objective should be a minimum presence of 15 percent 
of either race in each school.4 In addition, the district court 
outlined various changes in curriculum, staff, and programs for 
the Nasvhille school system.

II.

I believe that the majority opinion does not adquately address 
the district court’s findings of fact. With regard to factual ques­
tions in desegregation cases, the question on review is whether 
the findings of fact are clearly erroneous. Fed. R. Civ. P. 52(a). 
See Dayton Board o f  Education v. Brinkman, 443 U.S. 526, 534 
n.8 (1979) {Dayton II). This court may not reverse findings of 
fact unless it is left with the firm conviction that a mistake has 
been made. Alexander v. Youngstown Board o f  Education, 675 
F.2d 787, 795-96 (6th Cir. 1982). See, e.g., Reed v. Rhodes, 607 
F.2d 714, 717 (6th Cir. 1979), cert, denied, 445 U.S. 935 (1980); 
Penick v. Columbus Board o f  Education, 583 F.2d 787, 789, 
798 (6th Cir. 1978), a f f ’d, 443 U.S. 449 (1979). This court may 
not deviate from that standard when it addresses factual find­
ings with which it is vaguely dissatisfied. See Dayton II, 443 
U.S. at 418.

4 The district court observed that:
The selection of 15 percent is arbitrary, as is any other number 

which may be chosen. Preparation of students to live in a 
pluralistic society makes a biracial, intercultural experience 
highly desirable. However, it was not the intent of Brown and its 
progeny to require blacks always to be in the minority; nor 
should these precedents have been read to require assimilation or 
amalgamation. It is not undemocratic, nor does it violate equal 
protection of the laws to have a system that allows for recogni­
tion of and respect for differences in our society. A rigid 
adherence to racial ratios premised upon the social goal of 
assimilation, which in the process demeans, disminishes, or 
benignly neglects cultural and ethnic pride as well as differences, 
is not only constitutionally unrequired, but socially undesirable.

492 F. Supp. at 193.



— SA-30 —

The majority opinion does not subject the district court’s find­
ings concerning disparate busing burdens on black children, loss 
of community support, heavy economic expenses, and signifi­
cant educational costs under the 1971 plan to careful scrutiny to 
determine whether they are clearly erroneous. For example, the 
majority requires the district court to include children in grades 
K to 4 in its busing plan unless inclusion would “ risk the health 
of the children or significantly impinge on the educational pro­
cess.” Swann, 402 U.S. at 30-31. The district court, however, 
did make findings concerning the educational effects of the 
remedy on young school children and expressly noted the 
Swann exception.5 In addition, rather than evaluate the findings 
concerning white flight and its pertinence to the district court’s 
choice of remedy, see notes 1-2, supra, the majority simply re­
jects the notion that the threat of flight is a valid reason for fail­
ing to adopt any desegregation plan, a question not presented 
here.6

5 492 F. Supp. at 189-92. See note 3, and accompanying text, supra.
6 The threat of white flight may not, of course, be the basis for 

obstructing a desegregation remedy once a constitutional violation has 
been found. See, e g., Monroe v. Board o f Commissioners, 391 U.S. 
450, 459 (1968). The concern for white flight in cases where a Swann 
remedy has been in operation for some time, as here, does not reflect 
an attempt to defeat desegregation efforts, but is considered so that 
the plan will be effective in the long run.

United States v. Scotland Neck City Board o f Education, 407 U.S. 
484, 491 (1972), indicates that the risk of white flight does not permit a 
school board to avoid the responsibility of eliminating a dual school 
system. A district court, however, may consider such a risk in selecting 
the most desirable plan from among several constitutionally permissi­
ble desegregation remedies. In Stout v. Jefferson County Board of 
Education, 537 F.2d 800 (5th Cir. 1976), the Fifth Circuit, in examin­
ing the application of Scotland Neck, stated:

We have found no authority declaring that in choosing be­
tween various permissible plans a chancellor may not elect to 
minimize white boycotts. The teaching of Scotland Neck is that 
he may not refuse to adopt a permissible plan and elect or con­
fect one which preserves a dual system because of such fears. 
The true issue, then, is whether the plan adopted by the court 
below was, given the circumstances, a permissible one.



— SA-31 —

As this court has been previously admonished by the Supreme 
Court:

[o]n appeal, the task of a court of appeals is defined with 
relative clarity; it is confined by law and precedent, just as 
are those of the district courts and of this Court. If it con­
cludes that the findings of the district court are clearly er­
roneous, it may set them aside under Fed. Rule Civ. Proc. 
52(a). If it decides that the district court has misapprehended 
the law, it may accept that court’s findings of fact but 
reverse its judgment because of legal errors. Here, 
however, as we conceive the situation, the Court of Ap­
peals did neither. It was vaguely dissatisfied with the 
limited character of the remedy which the district court 
had afforded plaintiffs, and proceeded to institute a far 
more sweeping one of its own, without in any way upset­
ting the district court’s findings of fact or reversing its con­
clusions of law. Dayton I, 433 U.S. at 417-18.

After carefully examining the record and extensive findings of
fact in this case, especially those concerning population shifts,

Id. at 802. In this case, the district court evaluated the risk of white 
flight in determining the scope of its busing remedy, not in determin­
ing whether to afford a remedy at all. These are entirely separate ques­
tions. Other courts have held that the threat of flight is a proper con­
sideration in framing a permissible desegregation plan. See Johnson v. 
Board o f Education o f Chicago, 604 F.2d 504, 517 (7th Cir. 1979),
vacated for consolidation,___ U.S.____(1982) (a school board may
“consider the probability of white flight in formulating a remedial 
plan to prevent de facto segregation in public schools”); Parent Ass’n 
o f Andrew Jackson High School v. Ambach, 598 F. 2d 705, 719 (2nd 
Cir. 1979); Higgins v. Board o f Education o f the City o f Grand 
Rapids, 508 F.2d 779, 794 (6th Cir. 1974).



SA-32

educational quality, transportation burdens, and social costs, I 
am not left with conviction that the district court’s factual find­
ings are clearly erroneous.

III.

Furthermore, I believe that the majority has erred in its 
review of the district court’s desegregation remedy. When 
reviewing a district court’s desegregation remedy, we are limited 
to determining whether the district court abused its discretion.7 
See Mi!liken v. Bradley, 433 U.S. 267, 281 (1977); Swann, 402 
U.S. at 15, 25, 27, 30. The Supreme Court has identified the 
standard for review as the traditional abuse of discretion 
measure applied to equitable decrees: in a desegregation case, 
“ the scope of a district court’s equitable power to remedy past 
wrongs is broad, for breadth and flexibility are inherent in 
equitable decrees.” Swann, 402 U.S. at 15. This discretion com­
ports with the policy of leaving the administration of desegrega­
tion plans with the district courts.8 “ Because of their proximity 
to local conditions and the possible need for further hearings, 
the courts which originally heard these [desegregation] cases can 
best perform this judicial appraisal.” Brown II, 349 U.S. at 
299-300.

7 The courts of appeals have held that the standard of review in a 
desegregation case is whether the district court abused its discretion.
E. g., United States v. Board o f School Comm’rs o f Indianapolis, 637
F. 2d 1101, 1116 (7th Cir.), cert, denied, 449 U.S. 838 (1980); Evans v. 
Buchanan, 582 F.2d 750, 760 (3rd Cir. 1978) (en banc), cert, denied, 
446 U.S. 923 (1980); Stout v. Jefferson County Board o f Education, 
489 F.2d 97, 98 (5th Cir. 1974) (per curiam); Kelly v. Guinn, 456 F.2d 
99, 110 (9th Cir. 1972), cert, denied, 419 U.S. 919 (1979). See also Ar­
thur v. Nyquist, 636 F.2d 905, 906 (2nd Cir. 1981).

8 This court may reverse a district court in its formulation of a 
desegregation remedy only when it has abused its discretion, because 
the district court is in the best position to weigh the competing 
equities.



— SA-33

I disagree with the majority’s view of the district court’s 
discretion. The majority implies that the district court is 
obligated to employ a racial ratio which matches the racial com­
position of the Davidson County school system. My reading of 
Swann is that the district court may adopt such a ratio as part of 
a desegregation remedy. The Constitution does not require the 
district court to use a ratio which mirrors the racial makeup of 
the community. Swann, 402 U.S. at 23-24. Rather, the district 
court may use its discretion to determine the proper scope of a 
busing plan in a desegregation remedy.9

The majority’s treatment of the pupil assignment component 
of the desegregation plan is not consistent with the limited scope 
of our review. The district court did use in 1971, as a starting 
point,” the approximate racial ratio of the school district as an 
objective for its busing plan. The district court in 1980 reviewed

The essence of equity jurisdiction has been the power of the 
Chancellor to do equity and to mould each decree to the 
necessities of the particular case. Flexibility rather than rigidity 
has distinguished it. The qualities of mercy and practicality have 
made equity the instrument for nice adjustment and reconcilia­
tion between the public interest and private needs as well as be­
tween competing private claims.

Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944), cited in Brown II, 
349 U.S. at 300, and Swann, 402 U.S. at 15. See Lemon v. Kurtzman, 
411 U.S. 192, 200 (1972) (“ [i]n shaping equitable decrees, the trial 
court is vested with broad discretionary power; appellate review is cor­
respondingly narrow” ).

9 The Eighth Circuit has expressly rejected the argument that the 
desegregation plan for the St. Louis school system must precisely 
reflect the racial composition of the district. The district court 
adopted a pupil assignment plan which considered schools with black 
enrollment of 30 to 50 percent (plus or minus 15 percent) in a system 
which is 76 percent black. The appellate court found that such devia­
tions are within the discretion of the district court. Liddell v. Board o f 
Education o f St. Louis, 667 F.2d 643, 649 (8th Cir. 1981).



SA-34

the effectiveness of the 1971 order. After hearing and evaluating 
a broad range of evidence concerning white flight, test scores, 
transportation burdens, costs, education theory, and other fac­
tors, the district court changed the busing objective to a 
minimum presence of 15 percent of either race.

The majority opinion seems to recognize that there is no con­
stitutional right to any particular racial balance in schools. See 
Pasadena City Board o f  Education v. Spangler, A ll U.S. 424, 
434 (1976) (no “ substantive constitutional right to a particular 
degree of racial balance of mixing” exists); Swann, 402 U.S. at 
24. Yet the majority’s requirement that the district court employ 
a ratio of 68 percent white and 32 percent black (plus or minus 
15 percent) appears to be an attempt to establish such a balance. 
I fear that the precise racial mixture required by the majority on 
remand will, as a practical matter, create such a right. See 
Dayton Board o f  Education v. Brinkman, 433 U.S. 406, 418 
(1977) (1Dayton I).

Moreover, I disagree with the majority’s treatment of the 
pupil assignment component for grades K to 4. The majority re­
jects the district court’s decision on the premise that it is re­
quired to desegregate all schools and all grades within the school 
system. I do not believe that the district court’s discretion is so 
narrow. The cases on which the majority relies for its proposi­
tion do not support its conclusion.’0 In Haycraft v. Board o f  10

10 The majority’s reliance on Tasby v. Estes, 572 F.2d 1010 (5th 
Cir. 1978), cert, dismissed as improvidently granted, 444 U.S. 437 
(1980), is misplaced. First, the circuit court did not hold that Swann 
requires all schools and all grades to be included in a pupil assignment 
program. It remanded the case because the district court, unlike the 
lower court in this case, failed to make adequate factual findings. Id. 
at 1014. Second, the Fifth Circuit has expressly ruled that a district 
court “may devise a constitutional plan that temporarily or per­
manently leaves one or more racially identifiable elementary schools, 
or that omits some of the earlier grades from the busing probram.” 
Lee v. Macon County Board o f Education, 616 F.2d 805, 812 (5th Cir.



— 8A-35 —

Education o f  Jefferson City, 585 F.2d 803 (6th Cir. 1978), cert, 
denied, 443 U.S. 415 (1979), this court reversed a district court 
which excluded first grade students from a busing plan. In 
Haycraft, the district court made no factual findings; instead, it 
concluded “ as a matter of law” that first grade students without 
kindergarten experience would risk failure if they rode on a bus 
to school. Id. at 804. Here, the district court made extensive fac­
tual findings, supported by the record, and grounded his deci­
sion on the risk that the entire desegregation remedy might fail 
in the long run if very young children were included in the bus­
ing program. 492 F. Supp. at 189-93. Lee v. Macon County 
Board o f  Education, 616 F.2d 805 (5th Cir. 1980), does not hold 
that every grade in a school system must be included in a 
desegregation remedy. In fact, the Fifth Circuit reasons that 
“ [f]ocusing on the target of a unitary system rather than a 
systemwide racial balance, the court may devise a constitutional 
plan that temporarily or permanently leaves one or more racially 
identifiable elementary schools, or that omits some of the earlier 
grades from the busing programs.”  Id. at 812. See generally 
Swann, 402 U.S. at 24 (“ [t]he constitutional command to 
desegregate schools does not mean that every school in every 
community must always reflect the racial composition of the 
school system as a whole” ).

Finally, the majority fails to address directly the issue of the 
effectiveness of the desegregation plan.11 “ The measure of any 
desegregation plan is its effectiveness.” Davis v. School *

1980). Third, the Supreme Court’s decision to dismiss certiorari as im- 
providently granted provides no indication of the Court’s view of the 
merits and gives the Estes decision no precedential power binding on 
this court. See Griffin v. United States, 336 U.S. 704, 716 (1958); 
United States v. Carver, 260 U.S. 482, 490 (1923).

" The Supreme Court’s opinion in Washington v. Seattle School
District No. 1 ,___ U.S_____ (1982), does not address the issues raised
in this appeal. In Washington, the Court found that a state referen­
dum which prohibits mandatory busing of school children for pur­
poses of integration violates the equal protection clause of the four-



— SA-36

Com m ’rs o f  Mobile, 402 U.S. 33, 37 (1971). District court 
decrees must ultimately be evaluated on the basis of their effec­
tiveness. See Green v. County School Board, 391 U.S. 430, 439 
(1968) (desegregation remedies must be drawn “ in light of the 
circumstances present and the options available’’); Davis, 402 
U.S. at 37 (desegregation remedies must “ tak]e] into account 
the practicalities of the situation” ). An effective desegregation 
plan is one which will establish a unitary school system: “ The 
obligation of the district courts . . .  is to assess the effectiveness 
of a proposed plan in achieving desegregation.” Green, 391 
U.S. at 439. Many factors should be considered in deteimining 
whether a particular plan will be effective in establishing a 
unitary school system. These factors include population shifts,12 
transportation burdens, and the social, economic, and educa­
tional costs of competing desegregation plans. The precise 
weight to be acorded to each factor should be left to the district 
court’s discretion. In my opinion, the district court has properly 
identified and weighed these various factors and has selected a 
desegregation remedy which is likely to move Davidson County

teenth amendment. Washington concerns the structure of the state 
and local political process, rather than the breadth of a district court’s 
discretion in shaping a desegregation decree: “ [i]t is the State’s race­
conscious restructuring of its decisionmaking process that is imper­
missible.” Slip Op., at 28 n.29 ___  U.S. ___ , ___  n.29. The
Supreme Court has recently reiterated the policy of encouraging flex­
ibility in desegregation remedies and avoiding rigid approaches: 
“ although ‘in some circumstances busing will be an appropriate and 
useful element in a desegregation plan,’ in other circumstances ‘its 
“costs,” both in financial and education terms, will render its use in­
advisable.’ ” Crawford v. Los Angeles Board o f Education, Slip Op. 
at 14, quoting Crawford v. Board o f Education, 17 Cal. 3d 280, 309 
(Cal. 1976),___ U .S.____ (1982). See Slip Op. at 2 n.3, 9 n.15.

12 See notes 1 and 6 and accompanying text, supra.



SA-37

towards a unitary school system.13 If lasting solutions for the 
problems of desegregation are to be found, we must allow the 
district courts to shape remedies which reflect the practical prob­
lems facing a school system and which have a realistic chance of 
achieving the goals of Brown I.

A careful reading of the entire record, and my experience 
with the previous appeals filed in this litigation, leads me to 
believe that Judge Wiseman has addressed a difficult problem 
and is, together with the local community, making a sincere ef­
fort to bring a degree of finality to this longstanding issue. I 
believe that the district court’s plan complies with the re­
quirements of Brown I  and Swann. The district court’s findings 
of fact are not clearly erroneous and it has not abused its broad 
discretion in fashioning the flexible and innovative plan 
presented to this court. Accordingly, I would affirm the judg­
ment of the district court.

13 The majority relies on Tasby v. Estes, 572 F.2d 1010 (5th Cir. 
1978), cert, dismissed as improvidently granted, 444 U.S. 437 (1980), 
asserting that the dismissal of certiorari as improvidently granted is an 
indication that the Supreme Court supports the majority’s interpreta­
tion of Swann. Although the Court’s disposition allows no such in­
ference to be drawn, see note 10, supra, Justice Powell’s dissent, joined 
by Justices Rehnquist and Stewart, is of interest. The dissent em­
phasizes the need for flexibility and practicality in reviewing 
desegregation decrees.



— SA-38

SUPPLEMENTAL APPENDIX B

Robert W. Kelley, Individually and 
representative of the class

v.

Metropolitan County Board of Education of Nashville 
and Davidson County, Tennessee, et al.

Henry C. Maxwell, Jr., Individually 
and representative of the class

v.

Metropolitan County Board of Education of Nashville 
and Davidson County, Tennessee, et al.

Civ. A. Nos. 2094, 2956.

United States District Court,
M. D. Tennessee,

Nashville Division.

Aug. 27, 1979.

(Rendered Orally Aug. 24, 1979)

In desegregation action, the District Court, Wiseman, J., 
held that: (1) given the choice between further delay and im­
plementation of desegregation plan or a haphazardly hurried 
piecemeal implementation of a portion of the program, court 
would permit additional year’s delay; (2) board’s transfer 
policy, although facially neutral, was having a negative impact; 
(3) it would violate due process to hold school board members 
in contempt for the implementation of the school transfer 
policy where the prior orders of the court had not addressed the 
matter with sufficient specificity; (4) school board would be re­
quired to review transfer applications and determine this validi­



— SA-39 —

ty before granting them; and (5) the application of any senior to 
be retransferred to the school which he attended as a junior 
could be granted.

Order accordingly.

1. Schools (key) 13(20)

Court facing the choices of a further year’s delay in im­
plementing a portion of school desegregation plan or a 
haphazardly hurried construction of partial patches of the plan 
which would probably worsen the situation would permit the 
proposed zones of the school board to be continued for use for 
another year.

2. Schools (key) 13(6)

School board policy for subject matter-program transfers 
from one school to another, although racially neutral on its 
face, had a negative impact on desegregation efforts by the 
manner in which it was implemented and the inherent potential 
for abuse in its conceptualization and thus violated spirit of 
court’s integration order.

3. Constitutional Law (key) 273

It would violate due process to hold school board members in 
contempt for implementation of transfer plan where court’s 
desegregation orders did not address the matter with the re­
quisite degree of specificity. U.S.C.A. Const. Amends. 5, 14.

4. Schools (key) 13(20)

Where court had determined that school board’s transfer 
policy which was facially neutral was having a negative impact 
on desegregation efforts, court would order school board to 
submit a revision of the transfer policy designed to provide 
methods by which transfer applications could be objectively



SA-40

judged, prior to approval, to determine their validity as to the 
educational objectives of the student; court would require 
board to review each of the transfer applications which had 
previously been approved, as well as those currently pending 
and to make written findings as to the validity of each request.

5. Schools (key) 13(20)

School board would be permitted to grant the application of 
any senior who requested transfer from a school to which he 
had been zoned to the high school to which he attended as a 
junior and such transfers would be exempted from limitations 
on other transfers set forth in court’s desegregation orders.

Avon N. Williams, Jr., Richard Dinkins, Nashville, Tenn., 
for plaintiffs.

William R. Willis, Jr., Marian F. Harrison, Nashville, Tenn., 
for defendants.

MEMORANDUM

WISEMAN, District Judge.

This twenty-four-year-old case is before this Court upon a 
series of motions and petitions by both the plaintiffs and defen­
dants. The various motions, petitions, and pending matters and 
dates of filing are as follows:1

1. March, 17, 1972: Defendants’ request for approval of con­
struction of White’s Creek Comprehensive High School, includ­
ed in march 17, 1972, report to this Court and merged into July 
24, 1978, petition, listed infra. *

' Throughout the pendency of this case until and during the recent 
hearings, the parties have filed various motions relating to discovery 
matters. The Court has ruled on substantially all discovery issues as 
they have arisen. Such matters are, therefore, not listed above as pen­
ding motions.



SA-41

2. May 30, 1973: Petition by defendants for approval of long 
range plan, dealing with twenty-six building projects. This peti­
tion has essentially merged into more recent pleadings.2

3. May 31, 1973: Defendants’ petition for approval of por­
tables for use in kindergartens. No action was taken by the 
Court in regard to this petition and the defendants subsequently 
implemented the proposed plan.

4. October 14, 1976: Defendants’ motion to amend their 
May 30, 1973, petition for approval of long range plan. Such 
motion proposed a new location for the Goodlettsville-Madison 
High School and asked the Court for approval of construction 
of that school.

5. December 27, 1976: Plaintiffs’ petition for contempt and 
further relief. Plaintiffs therein moved that defendants be held 
in contempt for their plan to construct the Goodlettsville- 
Madison High School, the expansion of Hillsboro, Bellevue, 
Hillwood, Glencliff, Stratford, and Maplewood high schools, 
the use of portables for kindergartens, the establishment of the 
Cole Annex for Cole Elementary School grades five and six at 
the old Turner School, and the proposed closing of Pearl High 
School. The Board of Education subsequently rejected the pro­
posal to close Pearl. In this petition, plaintiffs also asked that 
the Court modify its 1971 order to equalize the burden placed 
on black and white children as a result of bussing, to compel 
defendants to maintain a black-white student ratio, and to force 
defendants to upgrade Pearl High School and inner city 
schools. Finally, plaintiffs requested attorneys’ fees.3 * 5

2 Subsequent to the May 30, 1973, petition, defendants have filed
various letters to inform the Court of their plans and actions taken
relating to the projects detailed in the petition.

5 Plaintiffs had previously filed motions for attorneys’ fees on 
February 8, 1974, and April 11, 1975, as well as a motion to dispose of 
those motions, filed on October 16, 1975.



SA-42 —

6. July 24, 1978: Defendants’ petition for approval of school 
attendance zones for 1978-79, as amended August 18, 1978. In 
this petition, defendants requested court approval of the expan­
sion of Hillsboro, Hillwood, Overton, Maplewood, Glencliff, 
and Stratford into comprehensive high schools with grades nine 
through twelve, the addition of grade nine to Cohn and Pearl 
high schools and to McGavock Comprehensive High School, 
the opening of the Whites Creek Comprehensive High School to 
include grades nine through twelve, the elimination of one grade 
schools, the changes in zoning to alleviate overcrowding and to 
close inadequate buildings, the plan to develop an inner city 
comprehensive high school, and the establishment of junior 
high schools including grades seven and eight with feeder 
systems into the high schools.4

7. August 28, 1978: Plaintiffs’ amendment to petition for 
contempt and for further relief, previously filed on December 
27, 1976, and discussed supra. Plaintiffs therein allege that con­
struction and expansion of schools in predominantly white 
areas, and the closure of formerly black schools in the inner 
city, the institution of optional transfer programs, discussed in­
fra, and the failure of defendants to increase the black-white 
faculty ratio are violative of the 1971 court order. 4

4 On May 29, 1979, defendants filed an amendment to the list of 
capital improvements and to proposed attendance zones, in which 
plaintiffs deleted from the May 30, 1973, petition a request for ap­
proval for an Interstate 40 West comprehensive high school, and 
substituting a plan for an inner city comprehensive high school, and 
modified the proposals relating to Antioch, Dupont, and Bellevue 
high schools. On July 6, 1979, the Court granted the defendants’ 
amendment to their request for approval of certain building projects, 
in which defendants withdrew their request for approval of construc­
tion of Antioch High School, the Glengarry Elementary School pro­
ject, the Jordonia-Wade Elementary School project, and omitted the 
projects proposed for Dupont and Bellevue high schools.



— SA-43 —

8. August 7, 1979: Plaintiffs’ motion for contempt, which 
charged that defendants had violated the Court’s order 
directing defendants to terminate the optional transfer plan, 
discussed infra.

In pretrial conferences held with all parties, the Court divided 
the matters into four phases:

Phase 1: Historical recapitulation of school integration since the 
order of 1971; consideration of the Long Range Plan of the 
school board; consideration of the proposed zoning for school 
year 1978—79 (now moot since the year 1979—80 was only one 
month away at the time of the hearing); consideration of the 
Board’s request to proceed with certain construction projects.

Phase 2: Consideration of matters relating to racial mix of 
staff and faculty.

Phase 3: Consideration of all petitions for contempt.

Phase 4: The matter of attorneys’ fees.

The Phase 1 hearings began on June 26, 1979, and continued 
on June 27, 28, 29, 30, 1979, and July 2, 3, 5, and 6, 1979. The 
proof on Phase 1 overlapped substantially with the matters of 
Phase 3.

At the conclusion of this hearing, the Court directed the 
defendant, Board of Education, to reconsider its entire plan 
assuming no parameters heretofore ordered by the Court, but 
with the primary objective of the achievement of a unitary 
school system for the entirety of Davidson County. In addition, 
the Board was instructed to consider: maximum utilization of 
existing buildings (specifically including those in the inner city); 
economic factors of transportation costs and fuel economy; 
time and distance involved in transportation; and any other fac­
tors which would impact upon the ultimate objective of a quali­
ty educational opportunity for all children in Davidson County 
through a unitary school system.



— SA-44 —

The defendant Board has advised the Court that the forego­
ing request of the Court is a massive undertaking which, if ap­
proved by the Court, will represent a substantial redrawing of 
zone lines and transfer of numerous students.

From the proof adduced on Phase 1 of the hearings, the 
Court finds the following:

1. The perimeter line drawn by the Court in 1971, by which 
no requirement of either transportation or attempts at racial 
balance was mandated outside the perimeter, has encouraged 
white flight to the suburbs and to those school zones unaffected 
by the 1971 order. The combined effect of the order and the 
flight therefrom, either to suburban public schools or to private 
schools, has been:

a) that inner city schools have become progressively 
resegregated;5

The most dramatic example of such resegregation can be seen in 
enrollment statistics for Pearl High School for the school years 
1970—71 through the projections for 1979—80, compiled in Exhibit 
87, as follows:

Black Students/ 
Percentage 

Black
White

Students
Total

Students
1970-71 1212 (100.0) 0 1212
1971-72 599 ( 62.9) 353 952
1972-73 603 ( 66.4) 305 908
1973-74 594 ( 68.4) 274 868
1974-75 558 ( 74.7) 188 746
1975-76 551 ( 72.5) 208 759
1976-77 551 ( 75.8) 175 726
1977-78 492 ( 83.1) 100 592
1978-79*
Projection

577 ( 96.6) 20 597

1979-80
*9th Grade Added

532 ( 96.6) 19 551



b) that the projected ideal ratio o f 15 percent to 35 per­
cent black population in each school has become increas­
ingly more difficult to meet;

c) that the school facilities outside the Court-ordered 
perimeter have become increasingly inadequate to accom­
modate the growing student bodies.

2. The resegregation, resulting, at least in part, from the 
nonetheless good faith efforts of the School Board in the im­
plementation of the Court’s order, amounts to a de jure 
segregation.

Recognition of the above results impels a complete reex­
amination of the remedy fashioned in 1971. As the United 
States Supreme Court has said,

The obligation of the district courts, as it always has 
been, is to assess the effectiveness of a proposed plan in 
achieving desegregation. There is no universal answer to 
complex problems of desegregation; there is obviously no 
one plan that will do the job in every case. The matter must 
be assessed in light of the circumstances present and the 
options available in each instance. . . . Moreover, whatever 
plan is adopted will require evaluation in practice, and the 
court should retain jurisdiction until it is clear that state- 
imposed segregation has been completely removed. . . . 

Green v. School Bd. o f  New Kent County, 391 U.S. 430, 439, 88 
S.Ct. 1689, 1695 20 L.Ed.2d 716, 724 (1968). See also Swann v. 
Charlotte-Mecklenburg Bd. o f  Educ., 402 U.S. 1, 19-21, 91 
S.Ct. 1267, 1278—79, 28 L.Ed.2d 554, 569—70 (1971).

[1] Although any delay in achieving an adequate remedy to a 
situation in which Davidson County children are deprived of 
constitutional rights is distasteful, the alternatives and the most 
appropriate remedy among such alternatives have not yet been 
the subject of proof in this case at this time. The Court is 
therefore left with the equally untenable choices of a further 
year’s delay or a haphazardly hurried construction of partial 
patches which would undoubtedly worsen the situation. The 
problem faced by the parties in this suit, by this Court, and by

— SA-45 —



SA-46 —

the citizens of this county is of paramount importance. It 
deserves the best efforts at resolution that can be mustered by 
everyone concerned. It is a subject upon which the best minds 
available to the parties, including input from the many well- 
motivated, thoughtful citizens of the community, should be 
sought and received. The 1979-80 school year is less than a week 
away. Massive restructuring of zones at this time would be 
chaotic. For all of these reasons, delay, however undesirable, 
becomes the only option available to the Court. The proposed 
zones of the Board for the year 1978—79 are approved for use in 
1979—80. Over the coming year, this Court will hear from the 
parties, and invites amicus briefs by groups such as the Citizens 
Advisory Committee, Parent-Teacher groups, and any other in­
terested group. The Court encourages such groups to submit 
proposals which are designed to achieve a unitary school system 
in Davidson County and to provide the best possible educa­
tional opportunity for all of the school children of the county.

The Optional Transfer Policy
In 1978 the School Board adopted a transfer policy which 

permitted any student assigned to a non-comprehensive high 
school to opt out automatically of such school to a comprehen­
sive high school (Exh. 21). At the July hearings, it became evi­
dent to the Court that this provision had been utilized extensive­
ly by white students assigned to Pearl to escape such assign­
ment. The percentage of automatic options out of Pearl com­
pared to those from other non-comprehensive high schools 
leaves no other credible inference.6 The effect of this policy 
upon the already-established trend toward resegregation at 
Pearl was disastrous. From the 1977—78 school year to the 
1978—79 year, the black to white ratio went from 83.1 percent 
to 96.6 percent (Exh. 87).

6 Exhibit 20 itemizes the number of students who transferred to a 
comprehensive high school from non-comprehensive high-schools in 
1978-79 under the optional transfer program. Interpolating these 
figures to reflect the number of students transferring from Pearl and 
other non-comprehensive high schools to comprehensive high schools, 
the resulting chart is as follows:



SA-47 —

At the hearings in July, when the foregoing facts became ap­
parent, the Court orally enjoined the Board of Education from 
further implementation of this transfer policy. The Court’s 
directive from the bench was:

School White B lack Other Total
From Pearl 290 21 12 323

to Glencliff 34 0 0 34
to Hillsboro 35 10 2 47
to Hillwood 220 8 10 238
to Overton 1 3 0 4

From Antioch 62 5 0 67
to Glencliff 62 5 0 67

From Apollo Jr. 50 1 0 51
to Glencliff 50 1 0 51

From Bellevue 8 0 0 8
to Hillsboro 8 0 0 8

From Cohn 66 19 0 85
to Hillsboro 31 14 0 45
to Hillwood 35 5 0 40

From Madison 47 2 0 49
to Maplewood I 0 0 1
to Whites Creek 46 2 0 48

From Dupont
(Jr. & Sr.) 37 4 0 41

to McGavock 37 4 0 41
From East 10 3 0 13

to Stratford 10 3 0 13
From Goodlettsville 68 5 0 73

to Whites Creek 68 5 0 73
From Joelton 149 0 0 149

to Whites Creek 149 0 0 149
From Neely’s Bend 3 0 0 3

to Whites Creek 3 0 0 3
Total 790 60 12 862*

* Exhibit 20 also reflects that 11 white students transferrred from 
Hillsboro to Hillwood. Since those transfers are not from non- 
comprehensive schools to comprehensive high schools, they are not 
listed in the above chart.



SA-48 —

I am making this ruling now, Mr. Willis, because as I see 
the urgency of the situation that has arisen during the 
course of the proceedings, I think I need to do that because 
you need to know what I am deciding on in the 1978—1979 
[sic]7 school year. I think it is going to take considerable 
work by the School Board on this ruling because it is going 
to move several hundred students or determine from them 
whether or not there is a bona fide reason for program 
transfers and in anticipating it on a program transfer basis 
rather than an automatic opting out. So, I am telling you 
that now, so you have plenty of time to work on it, we will 
continue to do that as we can through this hearing. I will 
supplement all of this in a written memorandum and give 
you a chance for appeal and whatever. When I see 
something I need to address in order to be ready for the 
1978—1979 [sic] school season, I will address it.

Thereafter, on August 7, 1979, plaintiffs filed a petition for 
contempt alleging that the Board had failed to implement in 
good faith the Court’s order. This petition was scheduled for 
the first order of business at the resumed hearings which began 
August 21 and continued through August 24, 1979.

From information provided through discovery, plaintiffs in­
troduced statistical summaries of transfers approved, broken 
out by sending school, receiving school, and by race (Exh. 98). 
From this exhibit it appears that 326 white students have had 
transfers approved from Pearl to other high schools in the 
system. Sixteen blacks and twelve persons of other races were 
granted transfers from Pearl. All of the transfers from Pearl 
were subject matter based. The number of transfers from other 
non-comprehensive high school were:

7 The Court erroneously referred to the school year 1978—79. The 
Court, of course, intended to refer to the school year 1979—80.



SA-49 —

White Black Other
From Joelton 134 0 0
From Cohn 85 25 2
From Antioch 38 1 0
From Dupont Sr. 32 0 0
From Madison 31 3 0
From Goodlettsville 23 8 0

The impact of these transfers upon the racial mix at Pearl was 
dramatic. Children assigned to Pearl by applicable residential 
zones should have produced a racial mix of:

532 white (52%)

36 other (3%)

461 black (45%)

After the approved transfers were granted, the resulting totals 
and percentages were:

206 white (30%)

24 other (4%)

445 black (66%)

Additional transfer requests are pending from Pearl of 78 white, 
17 black, and 4 other (Exh. 142). If these transfers are approv­
ed, the white population will be reduced to 22 percent.

The apparent mass exodus of white students from Pearl 
under the subject matter transfer raised a serious question in the 
Court’s mind as to the extent of monitoring which defendant 
Board had exercised in its implementation of the spirit if not the 
letter of the Court’s enjoinder from the bench in July. From the 
statistical evidence above, the Court found a prima facie case of 
contempt to have been made and shifted the burden of going 
forward with the evidence to the defendants.



SA-50 —

The School Board explained its procedure in implementing 
the court’s order as follows:

1. The School Board was informed at its July 10 meeting of 
the Court’s order and the need for modification of the Board’s 
policy.

2. The Board at its July 24 meeting rescinded its optional 
transfer policy. Dr. Elbert Brooks, Director, Metropolitan 
Schools, stated to the Board that “ students who had made these 
automatic transfers would be assigned to their original zoned 
school but would be permitted to request a transfer in order to 
take a particular program/subject not offered at the student’s 
assigned school.”

3. A form letter was developed and signed by Dr. Brooks 
and sent to all students who for the school year 1978—1979 had 
been assigned to a non-comprehensive high school under the 
“ automatic option” policy (Exh. 96).

4. A Transfer Committee was established consisting of Mr. 
Joe Garrett, Chairman, Pupil Accounting and Transfers, Pupil 
Personnel Services; Dr. Cornell Lane, Psychology, Pupil Per- 
sonel Serivces (a black member); Mr. Bill Hollingsworth, Atten­
dance, Pupil Personnel Services; and Mr. Dan Covington, 
Vocational and Technical Education. A directive was issued by 
Dr. Brooks requiring that requests for transfer be forwarded to 
the office of Mr. Garrett for review by the Transfer Committee. 
After such review the two affected principals and the students 
were to be notified.

5. Principal Carnes of Pearl High testified he was informed 
at two meetings held with other principals and his district 
superintendent that his sole function was to determine if the re­
quested course was available at his school and, if not, to sign off 
on the request. This instruction was reiterated by Dr. Brooks in 
a phone call after a school board member relayed parent com­



— SA-51 —

plaints to Dr. Brooks about Mr. Carnes’ handling of transfer re­
quests. Somewhat inconsistently, the testimony also showed 
that Mr. Carnes understood and Dr. Brooks also reiterated to 
him his responsibility to counsel with the student and parents 
concerning such a transfer.

At some point after the transfers began to be requested, the 
form for such applications was changed. The material change 
was the deletion of an addendum which listed courses taken in 
the previous year, grades received, and courses desired this year. 
It also required a statement that the program of studies had 
been discussed with both the principal and guidance counselor 
and an explanation thereof. Finally, it required a selection of a 
course not offered at the assigned school and a statement of 
how the requested course would be beneficial to the student. No 
satisfactory explanation of the changes in the form was offered 
by defendants.

Notably after the fact, after the filing of the petition for con­
tempt, Dr. Brooks required a comparison of the sub- 
ject/program transfers granted with the students preregistration 
desires indicated last spring (Exh. 137). This comparison as it 
relates to transfers from Pearl reveals the following:



T ransfer Request* for Program m atic Reasons Approved by S tuden t T ransfer Com mittee 
M etropolitan Nashville Public Schools 

As of A ugust 16, 1979

Spring  P reregistration  Course Selections Compared to Fall Registration Course Selections (Reason for T ransfer Request)

Sending Receiving
School School

Pearl Hillsboro

Seniors
O thers 2
Black -  0
W hite - _ s
Total -  11

(22.4%)

Pearl Hillwood

Seniors
Others - 2
Black -  0
W hite -32
Total -3 9

Pearl

(21.1%)

Glencliff

Seniors
O thers 0
Black 0
W hite 12
Total 19

(20.0%)

N um ber Approved

B W O T
2 45 2 49

5 170 10 185

1 94 0 95

Fall Course Selection 
Sam e As Spring 
Selection

W
25

Fall Course Selection 
N ot Selected in Spring, 
B ut Spring  Selection 
N ot Offered a t  Sending 
School

T B W 0 T
26 1 7 0 8

(53.1%)^
" '" ( 6 9  4% )-''

16.3%)

Fall Course Selection 
Not Selected in Spring, 
Spring Selection Similar 
to Course Offered a t  
Sending School_________

B W 0  T
0 0 0 0

0 0 0 0

0 42 0 42
(44.2%)

0 34 0

^ 80.0% r "

34
(35.8%)

0 1 0  1 
( 1.1% )

All Courses Selected 
in Spring Offered a t 
Sending School

B W 0  T
0 11 2 13

(26.5%)

0  13 1 14
(7.6%)

1 10 0 11
( 11.6% )

Num ber
Spring
Schedule
Available

2
(4%)

4
(2.2%)

7
(7.4%)

SA
-52



— SA-53

It is apparent from this summary that 69.4 percent of the 
transfers from Pearl to Hillsboro, 90.3 percent of the transfers 
from Pearl to Hillwood, and 80 percent of the transfers from 
Pearl to Glencliff were facially bona fide  under the policy of the 
Board and the understanding of Dr. Brooks, discussed infra. In 
the case of the one white transfer from Pearl to Glencliff 
wherein the fall course selection was not selected in the spring, 
and the spring selection is similar to a course offered at the 
sending school, and in the case of those 38 transfers to com­
prehensive high schools in which all courses selected in the 
spring are offered at Pearl, the transfers are facially suspect.

Dr. Brooks testified that a follow-up interview will be 
scheduled with each of these individuals in the suspect category 
in an effort to determine the bona fides of the students’ express­
ed desires. Such a monitoring is consonant with the policy 
adopted in 1977 by the Board in Section IV(F)(4) of the Student 
transfer Policy # 5119: “ Special requests having evidence of 
course or program selection and changes in courses scheduled 
for the purpose of school reassignment will not be approved’’ 
(emphasis added).

Dr. Brooks further testified that, in his opinion, there is no 
reliable way to explore the legitimacy of a subject/program 
tranfers except after the fact. In pursuance of this belief, the 
chairman of the Transfer Committee developed a three-part 
monitoring plan, to which Dr. Brooks added a fourth, by which 
the Board will follow the progress of each transfer student in the 
requested courses (Exh. 139). Actual enrollment is to be verified 
and progress checked at six-week and semester intervals and 
evaluated for renewal of transfer.

The Board’s actions before the filing of the contempt petition 
leaves much to be desired. Dr. Brooks admitted in hindsight 
that the comparison with spring course selection should have 
been examined before the fact rather than after. The Court



— SA-54 —

believes that the use of the longer form, changed in midstream 
apparently in the interest of time, would have produced infor­
mation for a more objective evaluation of the bona fide  nature 
of the application for tranfer.

The statistical evidence of transfers of white students from 
Pearl gives rise to the inescapable inference that white students, 
given the opportunity to automatically opt out of the Pearl zone 
last year, certainly did not wish to return. Perhaps many of 
these represent legitimate desires to attend a comprehensive high 
school and take courses offered there but not at Pearl. Black 
children are not exercising this program/subject opportunity in 
nearly the equivalent numbers or percentages, however. This 
may be due in part to a corresponding desire by black students 
to attend a majority black school; it may be related to the ethnic 
pride of the black community in Pearl High as an institution. 
For whatever reason, it is a fact evidenced by the admitted 
statistics of both 1978—79 and 1979-80 transfers.

The Board has adopted, as a part of its long range plan of 
construction of comprehensive high schools, a plan to construct 
an inner city comprehensive high school, to be named Pearl, 
and at a location either on the present site or at some place in 
the North Nashville area. Originally, the Board had gone for­
ward with the recommendation of the staff for the closure of 
Pearl, Cohn, and Joelton high schools upon the theory that 
none of these locations fit into the judicially imposed directive 
to locate comprehensive high schools in areas which would en­
courage and facilitate an integrated school system. Objections 
by the black community to the closure of Pearl brought about a 
reversal of this decision within the past year.

Another factor which has impinged upon the School Board’s 
action in regard to Pearl, as well as other non-comprehensive 
high schools in the system, is the requirement by Tennessee law 
that all students in grades nine through twelve be given access to



— SA-55 —

a comprehensive high school education by 1978 (T.C.A. §§ 
49-2701 et seq.). As long as Pearl and other non-comprehensive 
high schools were either scheduled for closure or had not yet 
been converted to a comprehensive facility, the Board felt 
obligated to provide the “ automatic option,” or at least the 
program/subject option on an “ as required” basis.

The subject matter/program transfer plan was “ loosely con­
ceptualized and leniently administered.” (Testimony of Dr. 
Scott). The Board of Education did not follow it own policies 
relating to subject matter transfers, specifically Sections IV(A) 
and IV (F) of the Student Transfer Policy # 5119. No preap­
proval screening was done to determine how the requested sub­
jec t/it into a student’s career objectives. No effort was made to 
ascertain if the requested subject correlated with the student’s 
career objectives expressed at spring registration or if, in fact, 
any change had taken place in those career objectives by the fall 
registration. No guidance counseling input was sought or receiv­
ed before approval was granted. Transfer approval was 
automatic if the requested course was not offered at the sending 
school and if such course w-as not already full at the receiving 
school. No effort was made to tabulate course requests and to 
determine if a sufficient demand existed to establish the re­
quested course as an offering at the sending school. For in­
stance, in applications to transfer away from Pearl, there were 
at lease 38 requests for horticulture, 18 requests for German 
history, 38 requests for media arts, 34 for computer programm­
ing, and 22 for vocational cluster. Such numbers would seem 
sufficient to establish classes in these subjects at Pearl. It would 
have been both feasible and reasonable to include a question on 
the request for transfer form inquiring whether or not the stu­
dent would be willing to take the requested course at Pearl if it 
were offered there after a sufficient expression of interest. Such 
an inquiry was not made.



— SA-56

The looseness of the administration of the subject mat- 
ter/program transfer policy and its pro forma approval can 
have no other effect than to emasculate any efforts at desegrega­
tion. Zoning becomes a farce under the expressed attitude of 
Dr. Brooks as to his understanding of a student’s automatic 
right to course offerings at another school. Many of these 
courses have no relationship whatsoever to the vocational pro­
gram outlined in T.C.A. §§ 49—2701 et seq. As this Court reads 
that law, the variety of vocational offerings in the Metropolitan 
School System is not required to be duplicated at every school 
nor is every student required by this law to be given access to 
every course at every school.

[2] The Court finds that the school board policy for sub- 
ject/program transfers, although racially neutral on its face, by 
the manner in which it has been implemented and the inherent 
potential for abuse in its conceptualization, has a negative im­
pact upon the desegregation efforts of the School Board pur­
suant to the previously issued order of this Court, and violates 
the spirit of the 1971 order, and the spirit of the order of this 
Court issued orally on July 2, 1979.

[3] The Court, however, does not find defendants in con­
tempt of the July 2, 1979, order of this Court. In that order, the 
Court directed defendants to abolish the optional transfer plan. 
It is indisputable that defendants complied with that order. In 
the July 2, 1979, order the Court did not deal specifically with 
the subject matter/program transfer plan, which was the central 
issue of the recent hearing. As the Court of Appeals for the 
Sixth Circuit has recently held, “ The notice of a judicial order 
upon violation of which a contempt finding may properly be 
based is such notice as would clearly tell a reasonable person 
what he is required to do or abstain from doing.” Reed v. 
Cleveland Bd. o f  Educ., 607 F.2d 749, 752, (6th Cir. 1979). It 
would violate due process to hold defendants herein in con­



— SA-57 —

tempt for their implementation of the subject matter/program 
transfer plan when the Court did not address the matter with 
that degree of specificity necessary under the standard 
hereinabove set out.

[4] It is, therefore, ORDERED that:

1. The School Board reexamine and submit to this Court for 
approval by September 7, 1979, a revision of its subject mat­
ter/program transfer policy designed to provide methods by 
which transfer applications may be objectively judged prior to 
approval, to determine their validity in the educational objec­
tives of the individual student, as opposed to a subterfuge on 
the part of a student to escape a given school or subvert the 
zones established for the purpose of achieving a unitary school 
system.

2. The School Board shall conduct a review of each of the 
transfer applications that have been heretofore approved as well 
as those now pending. Such a review will include an interview 
with both the student and parent or guardian. After such 
review, the Board will make written findings in each case of the 
validity of the request. A procedure will be established to obtain 
the recommendation of the principals from the sending and 
receiving schools and the judgment of the transfer committee. 
Such a procedure will also make provisions for an appeal to the 
Director. The decision of the Director, on appeal, shall be in 
writing and shall include the supporting reasons for his decision. 
Such a review of all previously granted requests will be made by 
September 7, 1979. The defendants will give first priority to 
reviewing those previously granted requests for transfers out of 
Pearl High School.

3. By September 7, 1979, the School Board shall submit to 
the Court for its approval recommendations relating to a plan to 
establish additional classes at Pearl and/or other non­



— SA-58

comprehensive high schools when the number of requests for 
transfers from such sending schools are sufficient to justify the 
establishment of such classes. This order does not suggest or re­
quire the conversion of all high schools into comprehensive high 
schools. The Board will necessarily make value judgments bet­
ween establishing courses such as computer sciences or voca­
tional clusters, on the one hand, which may not be economically 
feasible to develop at, for example, Pearl, and establishing 
courses such as German history, horticulture, and guitar, which 
would not require mass expenditures if such courses were of­
fered at Pearl.

4. Those students whose requests for transfer have been 
heretofore approved will register at and begin attending the 
school to which they requested to be transferred. The School 
Board shall reassign to the schools to which the students were 
originally zoned those students whose requests for transfer the 
transfer committee and/or the Director finds to be less than 
bona fide  and reassign to the original zoned school those 
students who requested a course subsequently offered at that 
school, under paragraph three of this order.

5. Those students whose requests for transfer are pending 
and those students who have not yet requested transfer will 
register at and attend the school to which they were originally 
zoned until such time as the defendants evaluate their requests 
for transfer under the revised plan.

6. Pursuant to the order and memorandum, filed August 27, 
1979, the defendant Board may grant the application of any 
senior (as defined in that memorandum opinion), who requests 
transfer from a high school to which he is zoned to the high 
school to which he attended as a junior in the year 1978-—79.

The Court does not intend to alter the provision of the 1971 
Court order, incorporated in Section XI of the Board’s policy §



— SA-59

5119 (Exh. 21), that allowed students to transfer from “ majori­
ty to minority” schools. Such provision has previously 
permitted a student, who is a member of the majority race in a 
particular school, to transfer automatically, without a program 
related reason, to the closest school in which that student would 
be a member of the minority race. The Court, however, will not 
condone transfers from, for example, Pearl, by white students 
in grades nine through eleven, when the effect of such a transfer 
will be to convert the majority at the sending school into a 
minority, or convert the minority at the receiving into a majori­
ty. The Board shall allow any student to transfer from a school 
in which he is presently in a majority to any school in which he 
would be at that time a member of a minority, in accordance 
witfr the defendants’ previous majority to minority plan. If, 
however, by the operation of the revised transfer plan and/or 
the majority to minority plan, the racial mix is altered so that a 
student in grades nine through eleven would not be transferring 
from a school in which he is presently a member of a majority to 
a school in which he would be at that time a member of a 
minority, the majority to minority rule will not justify approval 
of a request to transfer.

The Court recognizes that the foregoing directives are tem­
porary and will be obviated by the completion of the com­
prehensive high school program.

MEMORANDUM

[5] Defendants have moved this Court to exclude those 
students who will be seniors in the year 1979—80 from the 
Court’s order of August 24, 1979, relating to subject mat- 
ter/program transfers. Plaintiffs have responded in opposition 
to defendants’ motion.

In her affidavit attached to defendants’ motion, Dr. Peggy 
Harris, research assistant for defendant Board of Education, 
states that the sixty-six white students, designated as seniors for



SA-60 —

the year 1979—80, have requested and been approved for 
transfer from Pearl to a comprehensive high school. This figure 
represents approximately 20 percent of the 326 white students in 
grades nine through twelve, originally zoned to Pearl, whose re­
quests for transfers out of Pearl have been approved (Exh. 98): 
In addition, Dr. Harris stated that there were presently thirteen 
requests for transfer out of Pearl from white seniors whose ap­
plications were pending decision by defendant Board.

In defendants’ motion, they note the testimony elicited at the 
recent hearing from Leslie Carnes, Principal of Pearl High 
School, and Dr. Elbert Brooks, Director of Metropolitan 
Schools, regarding the special status of seniors who may have 
bought senior rings and made plans to participate in athletic and 
extracurricular activities. Plaintiffs, however, point out that the 
problems of seniors were not the subject of extensive proof at 
the hearings. They, therefore, argue that the special situation of 
each senior should be evaluated by the defendant Board on an 
individual basis when the Board reconsiders its prior grant of 
approval of transfer requests and initially considers pending 
transfer requests. Although plaintiffs contend that it is not 
equitable to permit those who have achieved a wrongfully ac­
quired status to profit from such status, they also appear to be 
sensitive to the potential special needs and problems of seniors.

This Court has found that the previously utilized optional 
transfer plan and the Board’s recent implementation of the sub­
ject matter/program transfer plan had a debilitating effect on 
desegregation efforts in this school system. Toward the end of 
halting the rapid trend of reversion to an almost totally black in­
ner city school, the Court ordered that the optional transfer 
plan be terminated and the method by which the program 
transfers were granted be radically revised so that program 
transfers could be based on bona fide  educational reasons rather 
than on a means to escape a traditionally black, inner city 
school.



— SA-61 —

The Court has attempted to fashion a remedy that will 
eliminate the negative effects of the previous policies of defen­
dant Board. In fashioning such a remedy, however, it is the 
Court’s responsibility to balance the relative detriments and 
benefits to the school children, who will be affected by the 
Court’s order. The Court cannot decree in a theoretical void; it 
must be cognizant of the specific situations involved and the 
harm that may befall individual children. The Court is not in­
sensitive to the special status of high school seniors who have 
made plans according to the assumption that they would be at­
tending the same school for their last year as they attended their 
junior year. Such plans may have entailed expenditure of money 
for class rings and senior pictures, and a commitment to par­
ticipate in, inter alia, athletic and band activities, school clubs, 
and student government. To destroy a student’s plans for the 
last year of high school and to wrest him away from the school 
he has known and the friendships he has developed has the 
potential for thwarting a child’s academic and social adjustment 
and fulfillment of his educational goals. To uproot a child who 
has spent at least the last year in anticipation of completing his 
high school education in the same environment offends this 
Court’s sense of justice. The potential harm in such upheaval 
weighs heavily in favor of an exclusion for seniors from the 
revised transfer plan.

The Court, therefore, grants defendants’ motion to exclude 
seniors from the Court’s order of August 24, 1979. The Court 
will permit the defendant Board to grant the application of any 
senior who requests transfer from a school to which he attended 
as a junior in the year 1978—79. The Court adopts the defini­
tion of “ senior” used by defendants as any student who, based 
on his number of credit hours, is capable of graduating from 
high school during the regular school year of 1979—80 plus the 
summer school term of 1980. An exemption for seniors will be 
incorporated into the final version of the Court’s order of 
August 24, 1979. This order of exemption of seniors from the 
revised program transfer plan will be in effect only for the year 
1979—80, and will not be extended beyond that year.



SA-62 —

SUPPLEMENTAL APPENDIX C

Robert W. Kelley, Individually and 
representative of the class

v.

Metropolitan County Board of Education of Nashville 
and Davidson County, Tennessee, et al.

Henry C. Maxwell, Jr., Individually 
and representative of the class

v.

Metropolitan County Board of Education of Nashville 
and Davidson County, Tennessee, et al.

Nos. 2094, 2956.

United States District Court,
M. D. Tennessee,

Nashville Division.

May 20, 1980.

In a school desegregation case, the District Court, Wiseman, 
J., held that: (1) the desegregation plan proposed by the Board 
of Education, which recommended more busing to achieve 
more racial balance, would be rejected, because it placed most 
of the burden of achieving desegregation on young black 
children and might lead to a public school system serving only 
the lower social or economic segments of society, and (2) the 
Board should consider a plan such including features as 
neighborhood schools for kindergarten and lower elementary 
grades, a minimum presence of at least 15 percent of the race in 
the minority at middle schools, the use of magnet schools, the 
use of public transportation, and educational components to 
improve the opportunity of school children for intercultural ex­
periences.



SA-63

Judgment accordingly.

See also D.C., 479 F.Supp. 120.

1. Schools (key) 13(4)

Once finding has been made that racially discriminatory dual 
school system has been maintained, it is responsibility of school 
board, under supervision of district court, to achieve unitary 
school system.

2. Schools (key) 13(6)

In determining remedy for school segregation, effectiveness 
of proposed desegregation plan must be weighed against other 
available alternatives and each alternative must be assessed in 
terms of its relative costs.

3. Schools (key) \5 9 V i

Desegregation plan proposed by the Board of Education, 
which recommended more busing to achieve more racial 
balance, would be rejected, because it placed most of the 
burden of achieving desegregation on young black children and 
might lead to public school system serving only lower social or 
economic segments of society.

4. Schools (key) 13(12)

Board of Education should consider desegregation plan in­
cluding features such as neighborhood schools for kindergarten 
and lower elementary grades, minimum presence of at least 15 
percent of race in minority at middle schools, use of magnet 
schools, use of public transportation, and educational com­
ponents to improve opportunity of school children for inter- 
cultural experiences.



Avon N. Williams, Jr., Richard H. Dinkins, Nashville, 
Tenn., Plaintiffs Intervenors, Carrol D. Kilgore, William E. 
Higgins, Nashville, Tenn., for plaintiff.

William R. Willis, Jr., Marian F. Harrison, Nashville, Tenn., 
for defendants.

— SA-64 —

MEMORANDUM OPINION

WISEMAN, District Judge.

The present posture of this case and this Court’s action 
thereon require a recitation of the tortuous twenty-five-year 
history of desegregation efforts in Metropolitan Nashville.

I. HISTORY OF NASHVILLE-DAVIDSON 
COUNTY DESEGREGATION 

PRIOR TO 1971

On September 23, 1955, plaintiff Robert W. Kelley filed this 
class action lawsuit to enforce Brown v. Board o f  Education, 
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), decided the 
previous year, and to enjoin the defendant Board of Education 
of the City of Nashville from continuing to operate a segregated 
school system. A three-judge court was convened in this 
district,1 but, upon defendants’ concession that the law was 
unenforceable under Brown, the three-judge court was dissolved 
for lack of jurisdiction and the case remanded to a single district 
judge of this Court. Kelley v. Board o f  Educ., 139 F.Supp. 578 
(M.D.Tenn. 1956). 1

1 The three-judge court was convened pursuant to 28 U.S.C. § 
2281, since plaintiffs contested the constitutionality of Tennessee law 
mandating segregation, T.C.A. §§ 49-3701 to 49-3704. These statutes, 
enacted in 1901, prohibited interracial schools and the teaching of in­
terracial classes. Misdemeanor penalties were prescribed for violation 
of this law. Section 49-3701 provided that “ [i]t shall be unlawful for



— SA-65

After a hearing on the proposed plan for desegregation sub­
mitted by the defendant Board, the Court, on January 21, 1957, 
approved the plan insofar as it provided for desegregation for 
grade one in the year 1957-58, but ordered the Board to develop 
a plan to eliminate segregation in the remaining grades. Kelley 
v. Board o f  Educ., 2 Race Rel.L.Rep. 21 (M.D.Tenn.1957). On 
February 18, 1958, this Court rejected as unconstitutional the 
Board’s proposed plan, essentially modeled after the Parental 
Preference Law, T.C.A. § 49-3704,2 passed in January of 1957, 
and previously held unconstitutional by this Court in Kelley v. 
Board o f  Educ., 2 Race Rel.L.Rep. 970 (M.D.Tenn.1957). The 
proposed plan proscribed mandatory integration or segregation 
in any grade but permitted parents to choose between sending 
their children to a one-race or integrated school. The Court 
allowed the defendant Board two months to file another plan

any school, academy, college, or other place of learning to allow white 
and colored persons to attend the same school, academy, college, or 
other place of learning.” Acts 1901, ch. 7, § 1; Shann,, § 6888a37; 
Code 1932, § 11395. Correlatively, section 49-3702 provided as 
follows:

It shall be unlawful for any teacher, professor, or educator in 
any college, academy, or school of learning, to allow the white 
and colored races to attend the same school, or for any teacher 
or educator, or other person to instruct or teach both the white 
and colored races in the same class, school, or college building, 
or in any other place or places of learning, or allow or permit the 
same to be done with their knowledge, consent, or procurement.

Acts 1901, ch. 7, § 2; Shann., § 6888a38; Code § 11396.

2 Section 49-3704 read as follows: ‘‘Separate schools
authorized.—Boards of education of counties, cities and special 
school districts in this state are authorized to provide separate schools 
for white and Negro children whose parents, legal custodians or guar­
dians voluntarily elect that such children attend school with members , 
of their own race.” Acts 1957, ch. 11, § 1.



— SA-66 —

for desegregation of all grades.3 See Kelly (sic) v. Board o f  
Educ., 159 F.Supp. 272 (M.D.Tenn.1958). On June 19, 1958, 
this Court approved the proposed Board plan that provided for 
elimination of compulsory segregation in grade two as of the 
academic year 1958-59 and in one additional grade a year 
therafter. See Kelley v. Board o f  Educ., 3 Race Rel.L.Rep. 651 
(M.D.Tenn.1958), a ff’d, 270 F.2d 209 (6th Cir.), cert, denied, 
361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240 (1959).4

At the time Kelley v. Board o f  Education was filed, Davidson 
County, surrounding Nashville, and the City of Nashville main­
tained separate school systems. Because the Kelley order had no 
effect upon the county school system, which continued to 
operate as a segregated system, plaintiff Henry C. Maxwell, Jr., 
filed a class action complaint on September 19, 1960, which 
paralleled the complaint previously filed by plaintiff Kelley 
against the Board of Education of the City of Nashville. On 
November 23, 1960, this Court approved a gradual desegrega­
tion plan submitted by defendant County Board of Education 
but modified the proposed one-grade-a-year component to re­
quire that immediate desegregation take place in grades one 
through four with an additional grade each year in the future. 
By so ordering, the Court placed the county school system on 
the same grade-a-year basis as the city school system. See Max­
well v. County Bd. o f  Educ., 203 F .Supp. 768 
(M.D.Tenn.1960), a ff’d, 301 F.2d 828 (6th Cir. 1962), a ff’d  in

3 At the same time, the Court denied defendants’ motion to dismiss 
that was grounded on the adequacy of the administrative remedy pro­
vided in the Pupil Assignment Act, also enacted in January of 1957. 
See Pub.Acts 1957, cc. 9-13.

4 Plaintiffs appealed from the Court’s order because they asserted 
that Brown mandated that desegregation be achieved with more celerity 
than one grade per year. Defendants, on the other hand, appealed the 
Court’s ruling that the portion of the plan that implemented the 
Parental Preference Law was unconstitutional.



part, rev’d  in part, sub nom. Goss v. County Board ofEduc. o f  
Knoxville, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963).5

On September 10, 1963, after the City of Nashville and 
Davidson County merged into a metropolitan government, the 
Kelley and Maxwell cases were consolidated by consent order 
and the Board of Education for Metropolitan Nashville- 
Davidson County was substituted as defendant.6 The case has 
remained in the same posture since 1963, with the primary 
defendant being the Metropolitan County Board of Education 
of Nashville and Davidson County. No significant action was 
taken by this Court in regard to school desegregation until over 
six years later.7

— SA-67 —

5 The plan, as approved by this Court and affirmed by the Court of 
Appeals, included a minority-to-majority transfer option for students 
who would otherwise be zoned to schools in which they would be in a 
racial minority. This provision is the converse of the majority-to- 
minority transfer policy currently in effect in Nashville-Davidson 
County. The United States Supreme Court granted certiorari to decide 
the constitutional validity of the minority-to-majority transfer provi­
sion of the school plan for Knoxville, Tennessee, as approved by the 
District Court for the Eastern District of Tennessee, Goss v. Board o f 
Educ., 186 F.Supp. 559 (E.D.Tenn.1960), and affirmed by the Court 
of Appeals for the Sixth Circuit, Gossv. Board o f Educ., 301 F.2d 164 
(6th Cir. 1962), as well as such policy included in the Maxwell plan. 
The Supreme Court reversed, holding that the minority-to-majority 
provision of both plans was constitutionally defective. Goss v. Board 
o f Educ., 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963).

6 The 1963 consent order substituted the Transitional Board of 
Education for the Metropolitan Government of Nashville and David­
son County as defendant. By order of December 3, 1964, the 
Metropolitan Board of Education and its board members were 
substituted for the Transitional Board.

In the interim, the plaintiffs challenged an action taken by the 
defendant school board and the state secondary athletic association, 
which had suspended a predominantly black, inner city school from 
participation in the interscholastic athletic program. The Court ruled 
that due process had been denied in the procedure used for suspending 
the school. The Court did not, however, deal with any aspects of the 
pupil assignment portion of the desegregation plan. See Kelley v. 
Board ofEduc., 293 F.Supp. 485 (M.D.Tenn.1968).



— SA-68 —

Upon plaintiffs’ motion for injunctive relief, this Court, on 
November 6, 1969, issued a temporary restraining order, enjoin­
ing defendant Board from purchasing new school sites, building 
new school facilities, or expanding existing school facilities, un­
til a hearing on the motion. After such hearing, the Court, on 
July 16, 1970,8 enjoined the Board from school construction not 
commenced as of the date of the restraining order, and ordered 
that the Board devise a comprehensive plan for a unitary school 
system that included, inter alia, rezoning and school construc­
tion to maximize school integration. Kelley v. Metropolitan 
County Bd. o f  Educ., 317 F.Supp. 980 (M.D.Tenn.1970). The 
defendant submitted a plan as ordered, but, on August 25, 
1970, the Court effectively stayed its order until resolution by 
the United States Supreme Court of school desegregation cases 
then pending before it.9 On December 18, 1970, however, the 
Court of Appeals for the Sixth Circuit vacated the stay and 
reinstated this Court’s order. Kelley v. Metropolitan County 
Bd. o f Educ., 436 F.2d 856 (6th Cir. 1970).

II. THE 1971 COURT ORDER

Pursuant to the remand order of the Court of Appeals, this 
Court held hearings on the Board’s proposed revised plan in the 
spring of 1971. At such hearings, a plan was submitted by the 
Board, a plan by the plaintiffs, including alternate plans for the 
elementary schools, and two alternate plans submitted by the 
Department of Health, Education, and Welfare [HEW], acting 
as consultant to the Court. The Court rejected defednants’ pro­

* The opinion was issued on July 16, although the judgment was 
not entered until August 13, 1970.

9 The most significant case involved was Swann v. Charlotte- 
Mecklenburg Bd. o f Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 
(1971).



— SA-69 —

posal, calling it a “ mere tinkering with attendance zones,” and 
“ only a token effort.” Kelley v. Metropolitan County Bd. o f  
Educ., Nos. 2094, 2956, at 6 (M.D.Tenn. June 28, 1971).10 11

The Court similarly rejected both of plaintiffs’ proposals 
because they allowed the school board to determine the actual 
assignment of pupils and implementation of the plan. In light of 
the Board’s past actions and apparently half-hearted efforts to 
devise a unitary school system that would encourage integra­
tion, the Court was naturally reluctant to delegate to the Board 
the responsibility for specific implementation. Additionally, the 
Court rejected the elementary school plans proposed by plain­
tiffs because they included some schools in the periphery of the 
county. The Court at that time found that the distances involved 
and the attendant busing costs were so great that it was not 
feasible to include the outer reaches of the county in a com­
prehensive busing plan."

The Court did adopt the element in both plaintiffs’ and 
defendants’ plans that instituted an “ ideal student racial ratio” 
in the range of 15 to 35 percent black in each school. After re­
jecting both plaintiffs’ and defendants’ plans, the Court viewed 
the HEW plan, as amended after evidence adduced at the hear­
ings, which incorporated geographic zone changes, clustering,

10 Although the opinion was issued by this Court, it is impossible to 
refrain from commending my predecessor on this case, now Chief 
Judge L. Clure Morton, for an opinion that was remarkable not only 
in its portrayal of courage by its author in light of the certain com­
munity hostility that ensued but also for its forthrightness and clarity 
in treating the legal mandates and decreeing specific directives and 
proscriptions.

11 Noting that the “practicality and feasibility of a plan is a 
material consideration,” the Court made it clear that the litmus test 
for a unitary school system was not necessarily the integration of each 
school within the system. Id. at 8.



SA-70 —

contiguous and noncontiguous pairings, and grade restructur­
ing, as the “ only realistic plan remaining.” Id. at 8. Perhaps 
most significant in terms of its total impact on the school 
system, the Court, in an effort to insure a racially unitary school 
system, ordered that over 13,000 more students be transported 
in the 1971-72 school year than had been bused in the previous 
year. Id. at 4-5.12 Under the pupil assignment plan as submitted 
by HEW and adopted by the Court, no school would have a ma­
jority of black students.

To discourage future resegregation, the Court made specific 
orders designed to maximize the potential for an integrated 
system. Included in the Court’s order was a directive for the 
Board to implement a majority-to-minority transfer policy. The 
Court also approved the proposed construction of what was 
later built as the Whites Creek Comprehensive High School 
because of its proximity to the proposed inner city expressway 
loop, located approximately half-way between predominantly 
black and white residential populations. The Court enjoined the 
construction of the proposed Goodlettsville Comprehensive 
High School because it would be located in an all-white com­
munity and not in proximity to the line of demarcation between 
the two populations. The Court similarly denied the Board per­
mission to enlarge Hillsboro High School, located in a white 
community, into a comprehensive high school, enjoined the use 
of portable classrooms for any purpose other than integration, 
and, finally, although exempting the predominantly white 
schools in the outer county from the effect of busing, enjoined 
the Board from renovating or enlarging by either construction 
or use of portables any schools that serve less than 15 percent 
black students after implementation of the plan.

12 Approximately 10,500 more elementary school children were to 
be bused, and 2,838 more secondary children were to be transported. 
Id. at 4-5.



— SA-71

Both parties appealed the 1971 decision of this C ourt.13 The 
defendants appealed on the bases of the Court’s asserted failure 
to comply with Rule 23 of the Federal Rules of Civil Procedure, 
the invalidity of the Court’s requirement of a fixed racial ratio, 
and the alleged adverse effects on the health and safety of the 
children resulting from implementation of the plan. Plaintiffs 
cross-appealed, claiming that their proposed plan should have 
been approved by the Court because it would have achieved a 
greater degree of integration and because the HEW plan, as ac­
cepted, placed a disproportionate burden upon black children. 
The Court of Appeals for the Sixth Circuit affirmed on all 
grounds, focusing on the discretion lodged with the district 
court and on the fact that some of the claims raised on appeal 
had not been adequately raised first in the district court.14

13 The memorandum opinion was issued on June 28, 1971, whereas 
the order was issued on July 15, 1971. On July 21, 1971, this Court 
denied defendants’ motion to set aside the memorandum opinion of 
June 28 on the basis of the Court’s alleged failure to comply with Rule 
23 of the Federal Rules of Civil Procedure. See Appendix B to Kelley 
v. Metropolitan County Bd. o f Educ., 463 F.2d 732, 748-50 (6th Cir. 
1972).

14 The Court of Appeals found that this Court had used a flexible 
racial ratio as a guide and that such a guide had been approved by the 
Supreme Court in Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402 
U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Although the HEW 
plan was “ somewhat less stringent” than the plan proposed by the 
plaintiffs, the Court of Appeals held that the Court’s approval was 
within judicial discretion and had, following the mandate of Green v. 
County School Bd. o f Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 
L.Ed.2d 716 (1968), the promise of effectively dismantling the 
previously dual system. Kelley v. Metropolitan County Bd. o f Educ., 
463 F.2d 732, 743, 746 (6th Cir. 1972). In regard to defendants’ con­
tentions that the proposed plan would work undue hardships on the 
children of this county, the Court of Appeals noted that such concerns 
had not properly been presented to the district court and were, 
therefore, not cognizable on appeal. Similarly, the Court of Appeals 
stressed the fact that the district court would be open to motions for 
modification by plaintiffs if there were adverse effects on black 
children who were, according to plaintiffs, made to bear the brunt of 
the busing burden. The HEW plan, as accepted, paralleled the Swann 
plan, and the incorporation of any disparate burden on black children 
into that plan was not addressed by the Swann Court.



SA-72 —

III. SUMMARY OF ACTIONS TAKEN 
BY THE COURT AND THE PARTIES 

SINCE THE 1971 COURT ORDER

Although little action having a signficant impact on the 
school system was taken by this Court between the 1971 order 
and 1979, the parties filed myriad motions, reports, and letters, 
many of which were not acted upon during the eight-year 
period. A recounting of pleadings and other communications 
filed with the Court during these years will help to put the pro­
gress of and problems with school desegregation in this county 
into better perspective.

The first report by defendants was filed with this Court on 
October 19, 1971, and described the first month of operation 
under the plan. Two days later, plaintiffs moved to join as par­
ties defendant the Metropolitan Government, the Metropolitan 
Mayor, and the members of the Metropolitan Council since 
they controlled the purse strings from which money for increased 
transportation must come.

Defendants’ second report to the Court was filed on March 
17, 1971, which proposed the attendance zone and other plans 
for a new comprehensive high school in the Joelton-Whites 
Creek area, which would be close to the proposed inner loop in 
the northeastern part of the county and which the Court in the 
1971 order had indicated it would approve when plans were 
finalized. Additionally, the report proposed capital im­
provements for schools whose student composition was at least 
15 percent black. No action was ever taken on the proposals in­
cluded in this report.

Three months later, the defendant Board of Education filed a 
petition, seeking changes in the plan in regard to elementary and 
junior high school zones and the approval of the use of an a,i- 
nex for an overcrowded school in the southeastern portion of 
the county unaffected by the Court’s busing order. Plaintiffs



— SA-73 —

responded by generally objecting to the proposed changes and 
requesting changes in the plan as adopted, in that it called for 
the closure of certain inner city black schools and clustering pat­
terns that required more cross-busing of black children than 
whites.

A hearing was held pursuant to the motions filed and, by 
order and memorandum, issued August 17, 1972, and August 
19, 1972, respectively, the Court granted plaintiffs’ motion to 
add the additional parties defendant, approved the requested 
changes in the elementary school zones, but denied the defen­
dants’ proposed changes in three junior high schools that would 
have resulted in lessened degrees of desegregation in those 
schools. The Court also ordered that the Board purchase addi­
tional buses, report to the Court regarding costs of transporta­
tion, and close all schools not later than 4 p.m. each day. Fur­
ther, the Court issued a temporary restraining order against the 
newly added defendants (council members and mayor) from in­
terfering with the Court’s order to desegregate. No action was 
taken by this Court on plaintiffs’ concerns about the alleged 
disparate transportation burden on black children.

With the third district judge sitting on this case since its incep­
tion,15 the Court held a hearing on the Board’s report submitted 
pursuant to the Court’s last order and, by order of August 31, 
1972, approved that report and dissolved the injunction against 
the newly added defendants. Shortly thereafter, the defendant 
Board sought modification of the August 17, 1972, order pro­
hibiting school closure not later than 4 p.m., which this Court 
granted on September 11, 1972.

15 When this case was first instituted and after the three-judge court 
was dissolved, see text accompanying note 1 supra, it was assigned to 
Judge William E. Miller. He continued to hear the case throughout 
the next fourteen years and, when he was elevated to judge of the 
Court of Appeals for the Sixth Circuit, he issued the memorandum



SA-74 —

The final action taken by this Court prior to pretrial matters 
and the subsequent hearings in the summer of 1979 involved an 
action brought by three newly added black City Council defen­
dants as third party plaintiffs against the United States, HEW, 
and federal officials, as third party defendants. The third party 
plaintiffs sought to enjoin the third party defendants from con­
tinuing to withhold federal funds that would be used for 
transportation expenses which would be incurred in implemen­
ting the Court’s desegregation order. After holding that the 
Court had jurisdiction over the third-party defendants except 
for the United States, see Kelley v. Metropolitan County Bd. o f  
Educ., 372 F.Supp. 528 (M.D.Tenn.1973),16 the Court held that 
the acts of the third party defendants in refusing to release funds 
for busing for desegregation purposes pursuant to a recently 
promulgated policy was illegal. The Court further enjoined the 
third party defendants from enforcing such an illegal and un­
constitutional transportation policy and to act within their 
discretion upon requests for funds. See Kelley v. Metropolitan 
County Bd. o f  Educ., 372 F.Supp. 540 (M.D.Tenn.1973).

Several matters were pending before this Court at the time it 
addressed the third party issues. They were not dealt with by the 
Court at that time nor has this Court taken any action on them 
since that time. As discussed supra, no action was ever taken in

and order of 1970 as district judge sitting by designation. After that 
order, however, the case was reassigned to Judge L. Clure Morton, 
who retained the case until he recused himself after the defendant 
Mayor moved for recusal on August 22, 1972. The case was then 
assigned to Judge Frank Gray, Jr. When I took the bench in August of 
1978, the case was then reassigned to me, making the fourth district 
judge sitting on this case.

16 On December 13, 1973, the Court also granted the original defen­
dant Board of Education leave to intervene as a third party plaintiff in 
this third party action.



regard to the report filed by the defendant Board on March 17, 
1972, in which the Board sought approval for construction of 
Whites Creek Comprehensive High School. Since that time, the 
Whites Creek School has been constructed. The current zones 
for the school are incorporated into a petition filed by the Board 
on July 24, 1978, discussed infra.

Also pending at the time of this Court’s last order was the 
Petition for Approval of the Long Range Building Program, fil­
ed on May 30, 1973.17 This proposal outlining twenty-six 
building projects has essentially merged into more recent 
pleadings that describe future plans in greater detail.18

The day after the Petition for Approval of the Long Range 
Plan was filed, defendant Board filed a petition for approval of 
portables for use in kindergartens. See Exhibit 55. At the time 
of the 1971 court order, this county had not extensively in­
stituted the systemwide, nonmandatory kindergarten program 
presently in existence. As discussed above, the 1971 order had 
specifically prohibited the use of portables for any purpose 
other than to achieve integration. The Court left the Board’s re­
quest for portables unanswered, and the Board utilized por­
tables at kindergarten locations beginning in the school year 
1973-74.

Over two years elapsed before either party officially filed fur­
ther pleadings in this case, although counsel for the Board cor­

— SA-75 —

17 Over a year later, on December 27, 1976, plaintiffs responded to 
this petition by generally denying all allegations.

18 On the same date that the Petition for Approval of the Long 
Range Building Program was filed, the Board also filed a motion to 
produce documents. This motion has little current significance. 
Discovery matters raised by the parties in this case were disposed of 
prior to and, in some instances, during the pendency of the recent 
hearings.



SA-76 —

responded by letter to the Court during this period of time.19 
The next official pleading was defendants’ motion to amend 
their previously filed Petition for Approval of the Long Range 
Building Plan and for further relief, filed October 14, 1976, 
wherein the defendants specifically described new plans for the 
proposed Goodlettsville-Madison High School and asked the 
Court’s approval to implement these plans.

The first pleadings filed by plaintiffs since 1972 were the 
answer to defendants’ proposed long range plan and a Petition 
for Contempt and for Further Relief, both filed on December 
27, 1976. Plaintiffs therein moved that defendants be held in 
contempt for their plan to construct the Goodlettsville-Madison 
High School,20 the expansion of Hillsboro, Overton, Hillwood,

19 Counsel for the Board filed two letters unreported on the Court’s 
docket sheet. The first was filed on August 15, 1973, and relayed the 
Board’s decision to proceed with the plan for using portables at 
kindergarten sites. See Exhibit 55. On October 19, 1973, counsel filed 
a letter requesting a speedy resolution of the Petition for Approval of 
the Long Range Building Plan incorporated into the petition filed on 
May 30, 1973. See defendants’ memorandum for status conference, 
filed March 29, 1979. In addition to a relatively insignificant letter filed 
on November 28, 1973, counsel also filed letters on July 15, 1974, see 
Exhibits 27, 39, and March 14, 1975, see Exhibit 37. The 1974 letter 
informed the Court of the Board’s plan to seek funding for high 
schools that would, beginning in 1978-79, offer comprehensive pro­
grams. Included in this plan were the Whites Creek High School and 
the proposed Goodlettsville-Madison High School. Also listed in the 
letter were elementary schools that were part of the longrange building 
plan. In the 1975 letter, counsel related the projected enrollment 
percentages for Hillwood, Hillsboro, and Stratford, as expanded 
comprehensive high schools, and informed the Court that funding for 
vocational facilities at these schools would be sought.

20 Defendants had described this plan in their motion to amend, 
filed October 14, 1976, discussed supra. The 1971 Court order had 
specifically enjoined the construction of the Goodlettsville-Madison 
High School, as proposed at that time since, because of its location in 
the white suburbs and away from the imaginary inner loop divider, it 
would tend to promote segregation. Since the 1971 order, however, 
the defendant Board had changed the proposed site location for the 
school from the city limits of the surburban City of Goodlettsville to a 
location nearer to the inner loop extended.



SA-77 —

Glencliff, Stratford, and Maplewood High Schools into com­
prehensive high schools,21 the construction of Whites Creek 
Comprehensive High School,22 the establishment of the Cole 
Elementary School annex,23 and, finally, the proposed closure 
of Pearl High School, the only traditionally black high school 
located in the inner city.24

Plaintiffs also sought alterations in the Court’s 1971 order, 
stressing, as they had before and after the 1971 order, the 
disparate busing burden placed on black children.25 According 
to the plan and the Board’s implementation of it in the last nine 
years, black children are bused out of the inner city to schools in

21 Requests for expansion of Hillsboro High School, implicitly 
disapproved by the Court in the 1974 order when it denied defendants’ 
application to acquire additional property for expansion to a com­
prehensive high school, had been reiterated in defendants’ Petition for 
Approval of the Long Range Plan of May 30, 1973, and in counsel’s 
letters of July 15, 1974, and March 14, 1975. Also included in these 
communications were explanations of expansion of other comprehen­
sive high schools, listed above.

22 Such construction had been proposed in defendants’ petitions to 
the Court, filed March 17, 1972, and May 30, 1973, and again in 
counsel’s letter to the Court of July 15, 1974.

23 As reported to the Court on July 15, 1976, the Board reopened 
Turner School to serve as an annex for the fifth and sixth grades at 
Cole for the year 1976-77. Cole is located in the southeastern part of 
the county, outside the “court-ordered” area, whereas Turner is 
located further in toward the center of the city in the “court-ordered” 
area.

24 By the time this case was heard in July of 1979, the Board had re­
jected the plan, as submitted by the staff, to close Pearl.

25 In addition to raising this issue on appeal, plaintiffs addressed 
this concern in their response of August 14, 1972, to the Board’s peti­
tion of July 7, 1972. The Court did not deal with this issue in its order 
and memorandum opinion, issued August 17, 1972, and August 19, 
1972, respectively.



— SA-78 —

predominantly white neighborhoods for grades one through 
four, whereas white children are bused into the inner city to at­
tend formerly predominantly black schools in grades four and 
five.

Plaintiffs further requested that the 1971 order be modified to 
include a requirement that defendants recruit, employ, and 
assign black personnel commensurate with the ratio of the black 
students in the school system. Finally, plaintiffs asked the Court 
to change the 1971 order to incorporate a plan to upgrade Pearl 
High School and other inner city schools.

In plaintiffs’ petition for contempt and further relief, they ad­
ditionally asked the Court to award attorneys’ fees. They had 
previously requested attorneys’ fees in motions dated February 
8, 1974, and April 11, 1975, as well as in a motion, filed October 
16, 1975, to dispose of the pending motions for attorneys’ fees.

The next formal pleading was filed in this Court by defendant 
Board nearly two years later. In its Petition for Approval of 
School Attendance Zones for 1978-79, filed on July 24, 1978, 
and amended on August 18, 1978, the Board asked that the 
Court accept new zoning plans, grade structures, and feeder 
patterns.26 Plaintiffs responded to defendants’ request, but no 
action was taken by this Court.

26 The petition detailed the zone lines for Hillwood, Hillsboro, 
Overton, Maplewood, Glencliff, Stratford, and Whites Creek as com­
prehensive high schools serving grades nine through twelve, the addi­
tion of grade nine to McGavock, the county’s first comprehensive 
high school constructed under the mandate of the 1973 Vocational 
Education Act, T.C.A. §§ 49-2709 et seq., and the addition of grade 
nine to Cohn High School, the only naturally integrated inner city 
school, and to Pearl High School, the only remaining traditionally 
black inner city high school. Additionally, changes were reported for 
junior high and elementary schools, primarily affecting feeder pat­
terns, decreasing overcrowding, and eliminating one grade schools.



— SA-79

The final pleading filed in this case prior to the 1979 pretrial 
matters was plaintiffs’ amendment to the October 14, 1976, 
Petition for Contempt and for Further Relief, filed on August 
28, 1978. Basically, the amended petition reiterates the concerns 
stated in plaintiffs’ earlier petition although in addition it 
responded to defendants’ July 24, 1978, petition.

IV. THE 1979 COURT ORDER

In the spring of 1979, this Court held a pretrial conference to 
distill the remaining issues, some of which had obviously laid 
dormant for years, and to organize the progression of the case. 
In an effort to simplify the future presentation of the case, the 
Court divided the pending matters into four phases, which 
would be heard seriatim: (1) Historical recapitulation of school 
desegregation in this county since 1971, and consideration of the 
Board’s Long Range Plan, including requests for construction 
projects; (2) Matters relating to the racial composition of staff 
and faculty; (3) Plaintiffs’ petitions for contempt; and (4) Plain­
tiffs’ petitions for attorneys’ fees.

Hearings on Phase I were held in June and July of 1979, at 
the conclusion of which the Court ordered that the defendant 
Board devise and submit to the Court a new plan for desegrega­
tion that would involve the entire metropolitan county rather 
than exempt the outer reaches as the 1971 order had done. 
Kelley v. Metropolitan County Bd. o f  Educ., 479 F.Supp. 120 
(M.D.Tenn.1979).27 Because of the short time involved before 
the beginning of the school year 1979-80, however, the Court 
approved the zones already in effect for 1979-80, and allowed 
the Board an additional year before implementation of a coun­
tywide plan.

27 The Court encouraged creativity and innovation in the develop­
ment of a new plan by stressing that the Board should “assum[e] no 
parameters heretofore ordered by the Court.” Id. at 122. The Court 
instructed the Board, in developing the plan, to consider the max­



SA-80

Because the Vocational Education Act, T.C.A. §§ 49-2709 et 
seq., mandated that each school system provide children with 
an opportunity to attend a comprehensive high school, those 
children zoned to a noncomprehensive high school in this county 
had been allowed to transfer automatically to a comprehensive 
high school. At the 1979 hearings, it became apparent that white 
children zoned to Pearl High School in the inner city had used 
this opportunity to defeat the desegregation efforts at that 
school, leaving Pearl 96.6 percent black in the school year 
1978-79. The Court, therefore, enjoined the Board from further 
implementation of the automatic transfer policy, ordered it to 
review all transfer requests, and grant such transfers only for 
bona fide program reasons. Such an injunction was issued orally 
from the bench on July 2, 1979, before the conclusion of the 
hearings.

On August 7, 1979, subsequent to the issuance of that injunc­
tion and the already concluded hearings, plaintiffs filed a peti­
tion for contempt, charging that the Board had not complied 
with the July 2 order. Hearings were held during August of 1979 
on plaintiffs’ motion for contempt. The Court found that the 
procedure used by the Board in approving subject-matter 
transfers had “ a negative impact upon the desegregation efforts 
of the School Board” and violated the spirit of the Court’s 1971 
order as well as the July 2, 1979, order. 479 F.Supp. at 129. The

imum utilization of existing buildings, especially those in the inner city, 
the economic factors of transportation costs and fuel economy, the 
time and distance involved in transportation, and any other factors 
that would “ impact upon the ultimate objective of a quality educa­
tional opportunity for all children in Davidson County through a 
unitary school system.” Id. In so instructing, the Court attempted io 
stress that the goal of the school system and the Court, in its interven­
tion into the operation of that system, should be to insure the oppor­
tunity for quality education and that any desegregation remedy should 
be viewed as a means toward that end rather than an end in itself.



— SA-81 —

Court, therefore, specifically defined the procedure by which 
requests for subject-matter transfers should be considered. Id. 
at 124-30. Pursuant to defendants’ motion filed after the hear­
ings, the Court permitted the Board to grant any transfer re­
quests of any senior who asked to transfer from a school to 
which he was zoned to the high school he attended as a junior in 
the previous year. Id. at 131-32.

V. DEVELOPMENTS SINCE THE
AUGUST 1979 COURT ORDER28

In response to the August 27, 1979, Court order, the defen­
dant Board began meeting on October 29, 1979, to develop a 
countywide desegregation plan. In compliance with the Court’s 
suggestion that the Board encourage and consider community 
input,29 the Board established a citizens’ advisory pane! whose 
members sat with the Board in its deliberations on the plan. 
Each of the nine Board members, three of whom were black, 
chose one citizen representative.30 Five public hearings were 
held in November of 1979, at which time suggestions from

28 Due to the length and complexity of this memorandum opinion, 
the findings of fact and conclusions of law have not been stated 
separately, but this entire memorandum opinion shall constitute find­
ings of fact and conclusions of law pursuant to Rule 52 of the Federal 
Rules of Civil Procedure.

29 The Court noted that the significance of an difficulties in achiev­
ing a unitary school system mandate that “ the best minds available to 
the parties, including input from the many well-motivated, thoughtful 
citizens of the community, should be sought and received.’’ Kelley v. 
Metropolitan County Bd. o f Educ., 479 F.Supp. 120, 123 (M.D.Tenn. 
1979).

30 In addition, a white interim Board member previously apointed 
to fill a vacancy continued to sit with the Board as a citizen represen­
tative, although his permanent replacement had already been 
designated and actively participated in the deliberations.



— SA-82 —

citizens were sought in an effort to develop criteria upon which 
to base a plan. After the public hearings, the Board and 
Citizens’ Advisory Panel met five times in December of 1979, to 
develop criteria for the plan.3' * 1 11

31 The Board adopted the following twelve criteria that should be 
utilized in the development of the plan:

1. That all schools in the county would be involved in the unitary 
school plan;

2. That a four-tiered system of grades be adopted, which would 
consist of 1-4, 5-6, 7-8, and 9-12 as nearly as possible;

3. That a child would not go to more than four schools during his 
experience, if his residence did not change;

4. That feeder patterns of elementary to middle to high school be 
established which would allow as many students as possible to remain 
together for as long as possible;

5. That the goal of this plan be that each school have an optimum of 
32 percent black students with a 20 percent range on either side of op­
timum (12 percent black to 52 percent black);

6. That the goal of the plan be the establishment of a magnet pro­
gram in any secondary school in which the white minority enrollment 
is between 10 percent and 20 percent;

7. That, wherever possible, school zones that are integrated by at 
least 32 percent minority (black or white) without busing for racial 
balance should be established;

8. That the goal of the plan be to distribute the burden of busing as 
equitably as possible;

9. That the planners be directed to consider all existing buildings, 
full utilization of presently used buildings based on projected enroll­
ment, the option of reopening buildings not now in use, expansion of 
these buildings, and the possible addition of new buildings which will 
facilitate the conservation of time, distance and fuel and which will 
facilitate the other major criteria of the plan;

10. That priority consideration be given to the utilization of existing 
facilities prior to recommendations for construction of new buildings;

11. That the average bus ride, one way, be kept to 30 minutes and no 
route will be longer than 80 minutes (the longest route at the present 
time under the present plan);



SA-83

During these December meetings, the Board voted to retain 
three outside consultants who had expertise in the area of school 
desegregation.* 32 A planning team was formed, composed of the 
three consultants, the Assistant Superintendent for Facilities 
and Services, the Director of Zoning for the school system, 
eight principals currently employed by the school system, and 
two administrative employees of the Board’s central office.33 In­
put was also received from other experts in the field who had 
either worked with school systems under desegregation orders 
or who had academic expertise in this area.34

12. That no first and second grade students be required to ride buses 
more than 30 minutes one way unless it is to the nearest school. See 
Collective Exhibit 154, at 479-80, 483-84, 529, 568.

32 The three outside consultants hired by the Board were Dr. 
Donald Waldrip, former Superintendent of the Cincinnati Public 
School System, former Assistant Superintendent of the Dallas School 
System, private consultant to various school districts on their 
desegregation plans, and an authority on magnet schools; Dr. Everett 
Myer, Assistant Director, Educational Opportunities Planning 
Center, University of Tennessee, Knoxville, Tennessee; and Mr. 
Nathaniel Crippens, retired Associate Director of the Desegregation 
Assistance Center, University of Tennessee College of Education, 
Knoxville, Tennessee.

33 The principals represented elementary, junior high, and high 
schools, including schools formerly unaffected by the Court order as 
well as those within the 1971 order. Of the eight principals selected, 
three were black. Of the two administrative personnel, one was black 
and one white.

34 The five experts consulted by the Board and planning team were 
Dr. Jay Robinson, Superintendent of the Charlotte-Mecklenburg, 
North Carolina School System; Dr. Robert Crane, Sociologist and 
Professor at Johns Hopkins University; Dr. James Barnes of the North­
eastern Desegregation Center, Hartford, Connecticut; Dr. Vern Cun­
ningham, court-appointed Master of the Columbus, Ohio School 
System; and Dr. Richard Pride, Associate Professor of Political 
Science, Vanderbilt University, Nashville, Tennessee, and author of a 
study on the phenomenon of “ white flight” in Louisville, Memphis, 
and Nashville.



— SA-84 —

The planning team worked through February 4, 1980, con­
sulting regularly with the Board. The Board met to develop a 
plan, using the previously established criteria, thirteen times 
during January and February of 1980, spending over 65 hours 
on its formulation. Two of these meetings were devoted to 
public hearings to obtain further community imput. See Exhibit 
177. In the early morning hours of February 5, 1980, the Board 
adopted a plan, after spending close to one hundred hours of 
preparation and deliberation. See Exhibit 178.

The plan, thus developed and approved, was submitted to the 
Court on February 11, 1980. In its regular February 12, 1980, 
meeting, however, the Board voted to amend the plan. Such 
amendment was filed with the Court on February 14, 1980, by 
way of affidavit of counsel for defendant Board. Plaintiffs filed 
their objections to the Board’s proposed plan on February 29, 
1980. A diverse group of plaintiff-intervenors,35 representing 
schools slated for closure under the Board plan, requested and 
were granted permission to intervene and filed the rudiments of 
an alternative plan on February 29, 1980. The intervenors’ plan 
was modified and refined during the course of the hearings and 
submitted with greater detail in their proposed plan on April 14, 
1980. * 1

35 The intervenors represented parents and concerned citizens from 
the following areas:

(1) the Bellevue community, which is a growing, predominantly 
white area in the southwest portion of the county in which the Board 
proposes to close Bellevue High School, leaving only a junior high;

(2) the Joelton community, which is a rural, predominantly white 
area in the northwestern part of the county where the Board proposes 
to close Joelton High School, leaving it operational as an elementary 
and junior high;

(3) the inner city, integrated neighborhood surrounding Cohn High 
School; and



SA-85

Hearings in this case recommenced on March 3, 1980, and 
were held for sixteen days in March, nine days in April, and 
ended with closing arguments on May 1, 1980. During these 
hearings, testimony was received regarding the plans submitted 
by both the defendant Board and the intervenors. Before the 
hearings started, while they were in progress, and even 
thereafter, the Court received several hundred letters from 
parents, interested citizens, and community groups, all of which 
were made a part of the official record in this case. A com­
parable number of letters was received by the defendant Board. 
The compendium of such letters to the Board was introduced in­
to the record as Collective Exhibit 170. Amicus curiae briefs 
were filed by the Metropolitan Nashville Education Associa­
tion, the League of Women Voters, and the American Educa­
tion Legal Defense Fund. The three black members of the 
Board filed a dissent to the plan proposed by the Board and also 
testified at the hearings. Another white Board member also filed 
a separate, written dissent from the plan.

During the course of the hearings, the plaintiffs were offered 
the opportunity to file an alternative plan. This offer was first 
declined but later accepted by the plaintiffs. The additional time 
requested in which to develop such a plan, however, appeared 
to preclude a resolution of the case by the beginning of the 
school year 1980-81 and, therefore, no such plan was presented. 
The plaintiffs did, through their expert witness, Dr. Hugh

(4) the almost totally black neighborhood adjacent to the inner city 
Pearl High School.

The Court cannot help but be pleasantly surprised as well as ex­
ceedingly gratified that citizens from these communities with diverse 
concerns and needs have bound together in a spirit of cooperation and 
industry. It is to be hoped that these citizens will continue to work 
together in the coming years to insure the effectiveness of a unitary 
school system in this county.



— SA-86 —

Scott,36 offer specific objections, recommendations, and sug­
gestions to the Court.

During the pendency of the hearings and thereafter, the 
Court read all communications from the public and studied in 
detail the plans proposed by the defendant Board and the in­
terveners, the objections filed by the plaintiffs, and the con­
cerns and suggestions presented in the amicus briefs. The plans 
and objections thereto will be described below.

VI. PROPOSED DESEGREGATION PLAN 
SUBMITTED BY DEFENDANT SCHOOL BOARD

Several basic principles, developed initially by the Board as 
criteria to be used in formulating the plan, see note 31 supra, are 
woven into the plan as finally adopted and submitted to the 
Court although rigid adherence to these goals was apparently 
not always possible. The Board determined that a four-tiered 
grade structure was the most conducive to integration efforts 
and that such grade structures would, when feasible, consist of 
grades 1-4, 5-6, 7-8, and 9-12. The Board adjusted the previous 
range of percentage of black students per school from 15-35 per­
cent, as adopted by the Court in 1971, to an optimum of 32 per­
cent black with a range of 20 percent in either direction, thus 
allowing a given school to have only 12 percent black or as much 
as 52 percent black. The Board focused on the concern of 
lengthy bus rides by setting a limit of 80 minutes for the longest 
one-way bus ride37 and 30 minutes for first and second graders 
unless a longer ride is necessary to reach the nearest school.

36 Dr. Scott is presently Dean for Programs in Education and Pro­
fessor of Education at Hunter College of the City University of New 
York. He has been a professor of education at Howard University, 
Superintendent of Schools for the Public Schools of the District of 
Columbia, Region Assistant Superintendent fro the Detroit Public 
Schools, and has published numerous articles relating to education.

37 Some white children are presently bused 80 minutes for 
nonintegration purposes to attend the nearest school.



SA-87 —

A . Sen ior H igh S ch oo l Plan

The Board plan provides for the retention of the eight existing 
comprehensive high schools to serve grades 9-12, and the im­
mediate closure of only two of the nine traditional high schools. 
Joelton High School, in the northwest portion of the county 
previously unaffected by the Court order, and Bellevue High 
School, in the southwestern corner of the county, also outside 
of the Court order, are slated to be closed as high schools but re­
tained as junior highs. The Board proposes to maintain Hume 
Fogg High School, located in downtown Nashville, as an open- 
zoned, vocational-educational school for grades 10-12. West 
End Junior High School would be converted into an open- 
zoned, magnet school for the academically gifted and would 
serve grades 7-8 the first year, with one grade per year being ad­
ded thereafter. In addition to Hume Fogg, only two schools will 
be limited to grades 10-12. The Board recommends a gradual 
phasing out of Pearl High School, discussed infra. Because of 
the building capacity of DuPont High School, it is not possible 
to accommodate ninth graders there using the present zone. 
With these exceptions, all other comprehensive and traditional 
high schools would serve grades 9-12.

The Board proposed two alternative plans regarding the two 
existing inner city high schools. The primary plan calls for the 
construction of a new inner city, comprehensive high school in 
a contiguous zone around the present Cohn and Pearl High 
Schools but somewhat smaller than the existing zones for the 
two schools.38 In the meantime, the Board suggests that those 
students who have been attending Pearl, Cohn, and Hillwood, a 
comprehensive high school located in a white neighborhood

38 Although the Board has not chosen a specific site for Pearl-Cohn, 
the staff has studied the possibility of using the site of the present 
Cockrill Elementary School, located close to the current Cohn 
building.



— SA-88 —

southwest of the inner city to which students from the inner city 
have been bused, remain at those schools. Those children who, 
under the old plan, would have entered either Pearl or Cohn 
beginning in the ninth grade would be zoned to Cohn, resulting 
in a gradual phasing out of Pearl. Since no students outside of 
the inner city would be zoned to Pearl during the three year 
phasing out period, it would be overwhelmingly black. In fact, 
the Board projects that Pearl’s student population would be 92 
percent black in the year 1980-81. Cohn, on the other hand, 
would be within the 12-52 percent range approved by the Board. 
In contrast, Antioch, located in the southeastern part of the 
county in a predominantly white neighborhood and slated to 
receive some students formerly zoned to Pearl, would have 
students formerly zoned to Pearl, would have a projected black 
attendance of only 5 percent. Once Pearl is phased out, 
however, black students in the noncontiguous, former Pearl 
zone would be zoned to Antioch, raising the percentage to 18 
beginning in the 1983-84 school year.

The Board outlined an alternative plan encompassing the in­
ner city high schools in the event the Court did not accept the 
above-described plan. This alternative plan entailed the closure 
of both Pearl and Cohn as regular high schools and the rezoning 
of students now zoned to Pearl and Cohn (except for those 
students in the present Pearl zone who would attend Antioch) to 
Hillwood and Hillsboro, both comprehensive high schools 
located in predominantly white neighborhoods.

The second and final proposal for high school construction 
involves a new Goodlettsville-Madison-Trinity Hills Com­
prehensive High School, the plan for which the Board has essen­
tially been seeking approval from the Court since 1972. The pre­
sent Goodlettsville and Madison High Schools would be closed 
but retained as junior high schools. Students from northwest



— SA-89 —

Nashville living southwest of Maplewood High School would be 
bused to the Goodlettsville-Madison High School, giving it a 
racial ratio within the approved range. Additionally, Stratford 
Comprehensive High School, whose zone would be contiguous 
to the zone for the proposed new school, would be within the 
approved range without pairing with a non-contiguous 
neighborhood. In contrast, Maplewood and Whites Creek 
Comprehensive High Schools, also contiguous to the proposed 
zone for Goodlettsville-Madison, would have a racial ratio of 54 
and 58 percent black, respectively, both slightly above the ap­
proved range.

The original Board plan contemplated the closure of East 
High School, located in what is called East Nashville north of 
the Cumberland River. The Board on February 12, 1980, 
however, amended the plan to study the feasibility of leaving 
East open beyond 1983 and revising the previously adopted 
zone for the new Goodlettsville-Madison Comprehensive High 
School. It is projected that East would have a student popula­
tion consisting of 55 percent black students, a ratio slightly over 
the approved range. With the exception of East, Maplewood, 
Whites Creek High Schools, and Antioch for the interim 
period, all other comprehensive and traditional high schools in 
the county would have racial ratios within the approved range.

During the period of construction of the new Goodlettsville- 
Madison High School, the Board suggested that inner city 
students be bused to both Goodlettsville and Madison, giving 
each of these schools a 12 percent black population. In the event 
that the Court disapproved of the construction of the 
Goodlettsville-Madison High School, the Board adopted an 
alternative plan that would convert Goodlettsville High School 
to a junior high school, serving grades 7-9 from the present



— SA-90 —

Goodlettsville and Maplewood zones and altering the 
Maplewood grade structure from its present 9-12 tier to a 10-12 
school. Under this plan, both Maplewood and Goodlettsville 
would have racial ratios within the approved range. The same 
noncontiguous zone as established for the primary interim plan 
would be assigned to Madison, making it 12 percent black.

B. Junior High School Plan

With the exception of DuPont Junior High School, the Board 
proposed that all junior high schools house grades seven and 
eight. Because DuPont Senior High cannot accommodate 
grades 9-12, the Board suggested that DuPont Junior High serve 
grades 7-9, including the middle portion of the area otherwise 
zoned to Donelson that consists of children who would be bused 
to DuPont for ninth grade.

As previously discussed, Bellevue and Joelton Senior High 
Schools would be retained only as junior highs. The Board plan 
included five noncontiguous zones from which children living in 
the inner city and in northeast Nashville would be bused to in­
tegrate Bellevue, Donelson, Apollo, Goodlettsville, and Neely’s 
Bend Junior High Schools, all of which are suburban, 
predominantly white schools. In addition, the predominantly 
white suburban children in the Antioch zone in the southeastern 
portion of the county would be zoned to Cameron Junior High 
School, located in the inner city. By expanding and annexing the 
nearby Johnson Elementary School, previously closed by the 
Board, Cameron would become one of two middle schools serv­
ing grades 5-8. The fifth and sixth graders would be bused into 
the Cameron Complex from the same zone as the seventh and 
eighth graders. The second middle school serving grades 5-8 
would be the Donelson Complex, located in the eastern part of 
the county. It would be comprised of the present Donelson 
Junior High School and the nearby Donelson Elementary 
School and would receive the same children from the north­
eastern part of the inner city in all four grades.



— SA-91 —

C. Elementary Schools

As discussed above, the Board developed a two-tiered 
elementary structure of schools housing grades 1-4 and 5-6. 
There are, however, many variations in this formula in the final 
plan due primarily to transportation distances and degrees of 
natural neighborhood integration surrounding existing elemen­
tary schools. Three schools in East Nashville north of the 
Cumberland River are scheduled to serve grades 1-6 from the in­
tegrated neighborhoods surrounding them.39

In addition, a fourth school would be retained as a 1-6 
school. The Board’s criterion that no student should be bused 
for more than 80 minutes except to the nearest school precluded 
the Board from attempting to integrate Harpeth Valley Elemen­
tary School, located in the suburban, predominantly white 
southwestern portion of the county. The Board had initially 
assigned these 42 children to an inner city school but later 
altered that assignment due to the travel distance involved. 
Harpeth Valley would thus remain overwhelmingly white.

Similarly, the Board’s criterion precluding busing for first 
and second graders for more than 30 minutes except to the 
nearest school affected inner city children who normally would 
have been bused to one of three 1-4 centers in the eastern part of 
the county. The Board, therefore, proposed to give these 
children a choice between attending Buena Vista, located on the 
edge of a zone contiguous to theirs, or one of the three schools 
to the east. They would then attend Jackson, Hermitage, or 
Dodson Elementary School in the Donelson cluster for grades 
three and four and the Donelson Complex for middle school in 
grades five through eight.

39 These three schools are Cotton, Howe, and Ross, contiguous to 
each other and located in the East and Stratford High School zones. It 
is extremely disheartening that only three schools in the county can 
boast of integrated neighborhoods from which the children can attend 
true neighborhood schools in an integrated setting without the necessity 
of noncontiguous busing or clustering of schools.



SA-92

The thirty minute limit on busing for young children also 
motivated the Board to reconsider the pairing of those children 
in East Nashville, just north of the Cumberland River, with the 
three elementary schools in the Neely’s Bend area to the nor­
theast. These inner city children near Caldwell Elementary 
School would have to travel more than thirty minutes to attend 
the Neely’s Bend area schools and vice versa. The Board, 
therefore, devised a meeting place for these children at Baxter 
School, located to the northeast of the inner city. Travel 
distances for the inner city and the more suburban children 
would be comparable. After attending Baxter, the inner city 
children would then be bused to one of three 3-6 centers in the 
Neely’s Bend area. The Neely’s Bend children would be bused 
to Baxter for grades one and two but would return to their 
neighborhood schools for grades 3-6.

The Board developed eleven clusters in which the children 
would not have to be bused to schools in noncontiguous zones. 
By drawing zoning lines to take into account the racial makeup 
of populations within the clusters and pairing schools within the 
clusters, the Board provided these children the opportunity to 
stay within their cluster for their entire elementary educational 
experience. Two clusters out of the eleven, however, are unique. 
The fifth and sixth graders from the northernmost portion of 
the Crieve Hall cluster, a somewhat triangular zone in the south 
central part of the county, are zoned to Binkley School, a 5-6 
center in the contiguous cluster to the southeast, rather than to 
Crieve Hall, located in their cluster slightly to the southwest of 
Binkley.

Several clusters form irregular triangles emanating from the 
center of the county with broadening bases at the county lines. 
For the most part, the schools toward the inner city are 5-6 
centers and the more suburban schools are designated as 1-4 
centers. This pattern is reflected in five of the seven clusters for­
ming irregular triangles. In three of the elementary clusters the



SA-93 —

schools are located or zone lines drawn so that the pattern 
described above is inapplicable.

Because of the lack of neighborhood integration, the Board 
determined that six clusters had to be paired with six other non­
contiguous clusters and thus busing across other zones would be 
necessary. Inner city children surrounding Cameron Junior 
High in an irregular triangular zone cut out from the Napier 
cluster would be paired with an irregular circular zone in the far 
southeastern part of the county. These inner city children would 
be bused out to the suburban schools for grades 1-4, whereas 
the suburban children would be bused in to Cameron for grades 
5-8. Similarly, inner city children in the north Nashville Whar­
ton zone would be bused to suburban schools in the 
southwestern part of the county for grades 1-4, and the subur­
ban children would be bused to Wharton for fifth and sixth 
grades.

The same pattern applied in the zone for children in northeast 
Nashville around Haynes School who would be zoned to one of 
three 1-4 centers in the northeastern part of the county, and the 
fifth and sixth grade children in the Amqui zone who would, in 
turn, be bused into the city to Haynes. Again, the pattern 
repeated itself for those children in the zone north of but con­
tiguous to the Haynes zone. They would be bused north to 
Union Hill or Goodlettsville for grades 1-4, and the suburban 
children bused in to Brick Church for fifth and sixth grades. 
Predictably, the children in grades 1-4 in the inner city zone 
around Buena Vista would be zoned to either McGavock or 
Hickman to the east and the more suburban children bused in to 
Buena Vista for grades five and six. The two pairings of the 
noncontiguous zones in the suburban Neely’s Bend area with in­
ner city Caldwell, and the inner city North Nashville zone with 
the Donelson zone have already been discussed.

Only one pairing deviated from the pattern of busing inner city 
children to more suburban schools in grades 1-4 and suburban



SA-94 —

children into the city for grades five and six. In the zone north 
of the Cumberland River containing Shwab, Joy, and GraMar, 
children would remain in that cluster, attending Joy for grades 
one and two and either Gra-Mar or Shwab for grades 3-6, 
whereas the children in the zone slightly to the northeast attend 
Bellshire for grades 3-6 but are bused in toward the city to at­
tend Joy for grades one and two.

Although the Board has adopted a plan to convert West End 
Junior High to a junior and senior high magnet, with the alter­
native plan for Pearl to be converted into a magnet, the Board 
has not chosen which, if any, elementary schools would become 
magnets. The planners, however, have recommended that five 
elementary schools be made magnets, feeding into the secon­
dary magnet. This recommendation includes Stateland, located 
in the Donelson cluster in the eastern part of the county and 
formerly used as an annex for Dodson School; Dan Mills, 
located in the Inglewood cluster to the northeast of the inner city; 
Burton, located in the Stokes cluster in the southern suburban 
area of the county; Parmer, also in the Stokes cluster toward the 
southwestern part of the county; and Ford Greene, in the inner 
city in the Head cluster.

Under the Board’s plan, nine elementary schools would be 
closed for all purposes. Three of these schools are in the inner 
city whereas the other five are located in more suburban areas to 
the southwest and southeast of the inner city.

The Board projected that in 1980, under its proposed plan, 87 
percent of all elementary school students would attend schools 
within the approved racial ratio range of 12 to 52 percent black. 
With the exception of DuPont and Harpeth Valley Elementary, 
all of the twelve elementary schools whose racial ratios fall out­
side the approved range are located north of the Cumberland 
River. In these ten schools, the percentage of blacks is projected 
to exceed 52 percent. This deviation can be explained by the fact



SA-95

that the black population is most concentrated north of the river 
where blacks make up 40 percent of the population whereas 
throughout the county blacks comprise only 32 percent. The 
largest percentage of blacks attending elementary schools 
would, however, only be 63 percent, which is projected for three 
elementary schools.

VII. PLAINTIFFS’ OBJECTIONS TO 
THE BOARD PLAN

As noted above, plaintiffs did not propose a plan as such. 
However, very specific objections were made and specific 
recommendations were offered through plaintiffs’ pleadings 
and witnesses.

A . Disparate Burden

Plaintiffs’ major complaint to the 1971 plan and to that of the 
Board now under consideration is the disparate burden each 
places upon young black children. Both plans are premised 
upon the “ busing out” of black children in grades 1-4, and the 
“ busing in” of white children in grades 5-6. Plaintiffs insist that 
such a premise places all of the burden of the desegregative ef­
fort upon the young black child while permitting the young 
white child to attend a neighborhood school. They postulate 
that the early primary grades are the most formative years of a 
child’s educational experience. Continuity is extremely impor­
tant during these years. The ability of a kindergarten teacher to 
discuss a child’s problems and progress with a first grade 
teacher, and the first grade teacher with the second, is impor­
tant educationally to both white and black children, but even 
more so to the child from a socioeconomically deprived 
background in which parental support may not be as present. 
Plaintiffs point out that under the proposed plan, as well as 
under the 1971 order, the inner city black child never goes to the 
same school for first grade as he does for kindergarten.



— SA-96

Another claimed damaging impact on young black children in 
the plan is that, in most instances, the black children are taken 
from a familiar, friendly, supportive environment into what can 
often be a hostile and unfamiliar environment. This is asserted 
to be particularly harmful to black children from an under­
privileged socioeconomic status. Once again, it is also harmful 
to white children, but not as severe in higher socioeconomic 
families.

A third problem cited by plaintiffs with the transportation of 
young black children away from their familiar environment in 
the early grades is the inability to have parental contact and in­
put. Parents of lower socioeconomic status are much less likely 
to have linkage with the teacher, particularly when the assigned 
school is in a distant suburb inaccessible by public transporta­
tion.

B. Educational Unsoundness o f  the 
Four-Tiered Structure

Under the proposed Board plan as well as under the present 
1971 order, most children will go to at least four schools during 
their K-12 school experience and almost all black children will 
go to five schools. Not only plaintiffs’ experts, but also all those 
who testified for intervenors as well as the Board, assert that a 
three-tiered structure is far more educationally sound. In its ad­
mission of this principle, the Board acknowledged that its use of 
a four-tiered structure plus kindergarten was chosen to facilitate 
the achievement of desired racial ratios.

C. Closure o f  Inner City Schools

The Board plan proposes to close five more elementary 
schools in or on the edge of predominantly black areas. In addi­
tion, under the various alternatives of the plan, Pearl High 
School is contemplated for either closure or conversion to a



— SA-97 —

magnet school. Pearl is the only remaining historically black 
high school. Plaintiffs argue persuasively for the retention of 
Pearl because of its historic contribution to the black communi­
ty of Nashville, the contribution of its graduates to the nation, 
its value as a source of ethnic pride and symbol of black achieve­
ment, and the fact that it is a sound structure, aesthetically at­
tractive, and functional. The building was designed by black ar­
chitects, constructed by black contractors, and has graduated 
black persons who have gone on to great achievements in the 
region and the nation. Such role models are of significant im­
portance to young black children seeking to break out of the 
bonds of poverty and overcome the unfortunately still-present 
effects of our shameful two-hundred-year history of discrimina­
tion against the black citizens of this land. Substantial proof 
from many prominent black leaders was offered in support of 
these contentions.

D. The Rightness o f  Whiteness or 
“Osmosis” Effect

The Board plan and the 1971 plan are both premised upon a 
goal that the percentage of black students in each school repre­
sent the percentage of blacks in the county. This is justified 
upon the philosophy that each public school should be a 
microcosm of the community it serves and that it is necessary to 
use such a percentage mix in order to have enough blacks “ to 
spread around,” thereby achieving racial balance in all schools, 
and upon the now questioned sociological studies that attemp­
ted to demonstrate an educational osmosis effect on a black 
child from being in a majority white school setting. Plaintiffs in­
sist: (1) the microcosm effect is practically impossible; (2) the 
“ spreading around” effect is inherently disparately burdensome 
to blacks; and (3) the osmosis theory is invidiously racist and 
based upon assumed black inferiority. Plaintiffs assert that to 
contend that a black child can receive a quality education only



— SA-98

in a white majority classroom is blatantly racist and pater­
nalistic. In addition, because the earlier sociological studies that 
may have indicated an osmosis effect have been subjected to 
such serious methodological question, and because more recent 
studies have indicated the incorrectness of the earlier conclu­
sions, they should be disregarded.

This point of departure demonstrates the evolution of 
desegregation philosophy that has occurred among educators, 
sociologists, black parents, and plaintiffs in this litigation as 
well as in similar litigation across the country. Historically, 
black plaintiffs felt the necessity to be in a majority white school 
in order to be assured of equal distribution of educational fun­
ding. The assertion and recognition of the right to equal protec­
tion of the laws has rendered this reason irrelevant in today’s 
climate. A dramatic role reversal has taken place. In this case, 
we have a white majority of the school board, acting on the ad­
vice of a white desegregation expert, recommending to the 
Court more busing to achieve more racial balance. Equally con­
trary to earlier posture, the black plaintiffs urge upon the Court 
less busing, more neighborhood characteristics to the assign­
ment plan, and the permissibility of majority black schools.

Based upon these and other criticisms of the Board plan, the 
plaintiffs recommend specific features which any revisions 
should incorporate:

1. An intervention program that addresses the needs of 
students who are deficient in the basic skills, especially when 
such students are bused to schools not in their immediate 
neighborhood;

2. A program at all schools that provides relevant educational 
experiences geared to helping students acquire an understanding 
of the life and culture of black Americans;



— SA-99

3. Programs and services that address the needs of students, 
black and white, who are achieving below the national norms in 
the basic skill areas;

4. A mechanism that insures that black students do indeed 
gain equitable access to the specialized programs offered in the 
comprehensive high schools;

5. A commitment to the maintenance of Pearl High School;

6. The concept that either whites or blacks can constitute the 
minority racial group;

7. The maintenance of the kindergarten and the primary 
grades as an integral educational unit;

8. A busing formula that does not shift black students in 
disproportionate numbers to white students;

9. A commitment not to dislocate black students dispropor­
tionately in the kindergarten and early grades;

10. An improved systemwide ratio of black teachers and 
black administrators; 11

11. A policy that permits a greater number of black teachers 
to be assigned to predominantly black schools.

VIII. THE INTERVENORS’ PLAN

The plan submitted by the intervenors was hurriedly prepared 
and therefore understandably lacks refinement in some of its 
details. It consists of a three-tiered structure within six 
geographical clusters of elementary, middle schools, and high 
schools. The elementary schools are neighborhood in character 
and admittedly do not make maximum utilization of buildings, 
nor have the neighborhood lines been drawn with a view to 
maximize integration possibilities within the neighborhood con­
cept. The range of black-white student population ratios for 
elementary schools within the various clusters are:



— SA-100 —

E Cluster—from 100 percent white at Union Hill to 99
percent black at Kings Lane

Q Cluster—from 94.4 percent white at Stratton to 82.7
percent black at Glenn

U Cluster—from 99.4 white at Stanford to 88.8 percent
black at Caldwell

I Cluster—from 97.2 percent white at Berry to 86.7
percent black at Napier

T Cluster—from 98.7 percent white at Crieve Hall to
98.3 percent black at Ford Greene

Y Cluster—from 98 percent white at Harpeth Valley to
99.2 percent black at McKissack

(Exhibit 227). The elementary student assignment plan did not 
consider kindergarten, or special education students, or 
building requirements. (Exhibit 179).

The middle schools within each cluster join a number of the 
elementary schools to feed each middle school. No noncon­
tiguous zones are utilized to achieve greater degrees of integra­
tion. The ranges of black-white student populations are:

E Cluster—from 97.4 percent white at Goodlettsville to
70.8 percent black at Ewing Park.

Q Cluster—from 94.4 percent white at Neely’s Bend to
56.7 percent white at Highland Heights.

U Cluster—from 99.1 percent white at Two Rivers to
64.2 percent black at Meigs

21 Cluster—from 94.6 percent white at Apollo to 80 per­
cent black at Cameron



T Cluster—from 91.7 percent white at McMurray to
95.6 percent black at Wharton

Y Cluster—from 95.7 percent white at Bellevue to 42.7
percent black at West End

(Exhibit 227).

The high school plan envisions retention of the existing com­
prehensive high schools, but also would retain Pearl, Cohn, 
Bellevue, Joelton, Antioch, East, DuPont, Madison, and 
Goodlettsville as “ traditional” high schools. An option would 
be offered to each student within each cluster of either a com­
prehensive or traditional secondary education.

The plan contains a number of voluntary components design­
ed to foster community support and also to facilitate integra­
tion. Failure to achieve or maintain at least a 10 percent racial 
minority presence (black or white) within a reasonable time 
after use of magnet programs and zone readjustments would 
result in closure of the school. If a school fell below 50 percent 
utilization it would be closed. Application for transfer from a 
“ traditional” to a comprehensive high school which would have 
a negative impact on integration would be first subjected to a 
course offering at the “ traditional” school to attempt to pre­
vent the transfer.

The intervenors’ plan emphasizes the use of public transpor­
tation facilities as both a money-saving device and as a method 
for establishing natural linkages among students, parents, and 
the receiving schools. The point is well made that access to a 
school by public transportation tends to foster parent participa­
tion in school activities and in the education of their children, 
facilitate the participation of children in afterschool extracur­
ricular activities, and encourage intercommunity relationships. 
As noted in the discussion of the Board’s plan, noncontiguous 
zoning between communities, between which there is no public

— SA-101 —



— SA-102

transporation and little other commonality, has many inherent 
problems and disadvantages. Close coordination between the 
Board and the Metropolitan Transit Authority is urged in 
establishing new routes and future school construction.

The high school plan departs from a consistent feeder pattern 
for the middle schools. For example, some children who went to 
middle school at John T. Moore in the “ T ” cluster will go to 
high school in the “ Y” cluster. Some who went to West End in 
the “ Y” cluster will go to high school in the “ T ” cluster. Litton 
middle schoolers will be split between the “ Q” and “ U ” 
clusters. (Exhibits 225 and 226).

The intervenors urge the Court to defer adoption of any plan 
until 1981—82 in order to implement their suggestion.

Although the voluntary components of the plan offer attrac­
tive alternatives designed to foster community support for the 
school system, the plan is defective in a number of respects.

First, it emanates largely from a parochial desire to maintain 
high schools in established communities such as Pearl, Cohn, 
Bellevue, and Joelton in contratiction to the Board’s established 
policy (and state mandate) of a system of comprehensive high 
schools. There is a growing debate among professional 
educators as to the wisdom and educational value of com­
prehensive high schools. This Court need not enter or take sides 
in the debate except to the extent that the decision may facilitate 
or deter efforts to achieve a unitary system. Otherwise, it is an 
educational decision.

It is impossible to justify maintenance of Pearl, Cohn, and 
Bellevue in the southwest quarter of the county alongside the 
three comprehensive high schools (Hillwood, Overton, and 
Hillsboro) that have been built in the same quadrant. At the an 
ticipated enrollment for 1983, these three new comprehensive 
high schools could accommodate all students in the



SA-103 —

southwestern quadrant, leaving the Pearl, Cohn, and Bellevue 
buildings available for other uses, and still have 1156 empty 
seats.40 Under the same 1983 projections, the new Whites Creek 
Comprehensive High School can absorb all Joelton students 
and still have 372 empty seats. (Exhibit 155).

Such underutilization seems economically unjustifiable and 
there is no basis upon which the Court could mandate it.

More importantly, the intervenors’ plan substantially 
resegregates most of the proposed “ traditional” high schools. 
Initially, Madison would be 97.8 percent white, DuPont would 
98.8 percent white, Antioch would be 96.2 percent white, 
Bellevue would 97.1 percent white, and Pearl would 92.7 per­
cent black. Some of the currently integrated comprehensive 
high schools would revert to identifiably black or white schools: 
Overton would become 96.2 percent white, Hillsboro would 
become 95.9 percent white, and McGavock would become 96.4 
percent white. Intervenors would rely on the voluntary com­
ponents and magnet aspects of their plan to bring these schools 
to a minimum 10 percent of either race as a minority in such 
schools. However, the prospect of such an eventuality is unduly 
optimistic at best.

40 The following projections were made for 1983 (assuming the con­
struction of both the Pearl-Cohn and Goodlettsville-Madison Com­
prehensive High Schools):

Capacity Students Empty Seats
Hillsboro 1751 959 792
Overton 1819 1336 483
Hillwood 2190 1206 984

2259
Pearl-Cohn 1100 1103 -3

Thus if the Pearl, Cohn, and Bellevue students were incorporated into 
Hillsboro, Overton, and Hillwood, there would still be 1156 empty 
places. (Exhibit 155).



— SA-104 —

IX. THE COURT’S RESPONSIBILITY

A. A “Unitary” System

[1] Once a finding has been made that a racially 
discriminatory dual school system has been maintained,41 it is 
the responsibility of the School Board, under supervision of the 
Court, to achieve a “ unitary” school system. Green v. County 
School Bd., 391 U.S. 430, 88S .Q . 1689, 20 L.Ed.2d 716 (1968). 
Perhaps intentionally, no precise definition of what constitutes 
a “ unitary”  system has been laid down. In Alexander v. Holmes 
County Bd. ofEduc., 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 
19, 21 (1969) (per curiam), the Supreme Court mandated a 
system “ within which no person is to be effectively excluded 
from any school because of race or color.” This definition was 
reiterated in the concurring opinion of Chief Justice Burger in 
Northcross v. Board o f  Educ., 397 U.S. 232, 237, 90 S.Ct. 891, 
893, 25 L.Ed.2d 246, 250—51 (1970) (per curiam).

Pursuant to this Court’s direction to seek public input to the 
proposed plan, the Board invited definitions of “ unitary school 
system” at its public hearings. Some of these bear repeating:

By the nature of the title an Unitary School System im­
plies oneness of opportunity for all children, oneness of 
administration, oneness of financial support, oneness of 
educational philosophy, oneness with Metropolitan 
Government, and oneness geographically centered at and 
emanating from the heart of the innercity.

41 The defendant, then Board of Education of the City of 
Nashville, conceded shortly after this case was instituted that the state 
laws under which defendant operated a dual system were unconstitu­
tional. See Kelly (sic) v. Board o f Educ., 159 F.Supp. 272 
(M.D.Tenn.1958); Kelley v. Board o f Educ., 139 F.Supp. 578 (M.D. 
Tenn.1956).



Councilman William E. Higgins

A Unitary School System is that system which is design­
ed and functions to the extent that equal resources and ac­
cess to quality education are available to all parts and 
groups of a given community.

Rev. Amos Jones, North Nashville Community Council & 
Social Action

A unitary school system is one offering each student 
equal access to the facilities, materials and staff to provide 
the opportunity to meet his/her educational needs. This 
uniformity of opportunity must also extend to parent, 
family and citizen involvement in the educational system.

Exhibit 2 to plaitniffs’ proposed plan, filed Feb. 11, 1980.

Brown v. Board o f  Educ. (Brown II), 349 U.S. 294, 75 S.Ct. 
753, 99 L.Ed. 1083 (1955), broke down the barriers excluding 
black children from attending schools with white children. 
Green v. County School Bd., supra, described the ultimate goal 
to be a unitary, nonracial system of public education, and 
onerated school boards to “ come forward with a plan that pro­
mises realistically to work, and promises realistically to work 
now.” 391 U.S. at 439, 88 S.Ct. at 1694, 20 L.Ed.2d at 724 (em­
phasis added). Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 
402 U.S. 1,91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), identified and 
utilized transportation of students to acheive racial mix, and 
gerrymandered zone lines and/or noncontiguous zones as per­
missible remedial devices to achieve a unitary system. Milliken 
v. Bradley (Milliken I), 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 
1069 (1974), emphasized the remedial nature of the Court’s 
responsibility and expanded the charge to include such action as 
would as nearly as possible “ restore the victims of 
discriminatory conduct to the position they would have oc­
cupied in the absence of such conduct.” Id. at 746, 94 S.Ct. at

— SA-105 —



— SA-106

3128, 41 L.Ed.2d at 1092. Milliken v. Bradley (Milliken II), 433 
U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), specifically ap­
proved remediation in the form of educational components 
designed to “ restore the victims of discriminatory conduct to 
the position they would have enjoyed in terms o f  education

. . . .” Id. at 282, 97 S.Ct. at 2758, 53 L.Ed.2d at 757 (em­
phasis added).

Thus the definition of a “ unitary” school system has expand­
ed from Brown to Milliken from a mere destruction of barriers, 
to pupil assignment, to remediation and quality education.

B. Racial Ratios

As noted above, the thinking of sociologists, educators, legal 
scholars, black plaintiffs, and jurists has also undergone evolu­
tion. Earlier literature and studies of varying methodological 
purity postulated a benefit to black children from a school 
setting in which white middle class children were in the majori­
ty. This thinking has changed significantly.42

Swann may have been misinterpreted to state a requirement 
of racial ratios in all schools unless the Board could carry the 
heavy burden of proving the rationale of the exception. Thus, it 
has perhaps appeared that the achievement of racial ratios has 
become an end of litigation of this type, rather than the remedy 
it was conceived to be. District Judge McMillan, in the Swann 
case, indicated that such a future emphasis would be misplaced:

42 In his testimony during the hearings, Dr. Scott repeatedly ques­
tioned and criticized the assumption that it is necessarily more advan­
tageous to black children to attend majority white rather than majori­
ty black schools. See discussion in section 4 of Part VI, supra. See also 
Bell, Brown v. Board o f Education and the Interest-Convergence 
Dilemma, 93 Harv.L.Rev. 518 (1980).



— SA-107 —

This court has not ruled, and does not rule that “ racial 
balance” is required under the Constitution; nor that all 
black schools in all cities are unlawful; nor that all school 
boards must bus children or violate the Constitution; nor 
that the particular order entered in this case would be cor­
rect in other circumstances not before this court.

Swann v. Charlotte-Mecklenburg Bd. o f  Educ., supra, 402 U.S. 
at 25 n. 9, 91 S.Ct. at 1280 n. 9, 28 L.Ed.2d at 571—72 n. 9 (em­
phasis in original), quoting with approval from Judge 
McMillan’s memorandum of August 3, 1970.

The Supreme Court, in Swann, observed the “ familiar” 
metropolitan phenomenon (present in Nashville) of concentra­
tions of black population in one part of the city. It further 
recognized that, as a result of this phonomenon, “ ceitain 
schools may remain all or largely of one race until new schools 
can be provided or neighborhood patters change.” 402 U.S. at 
25, 91 S.Ct. at 1281, 28 L.Ed.2d at 572. No specific degree of 
racial mixing is mandated by Swann nor is “ desegregation” 
defined as requiring every school to reflect the racial composi­
tion of the system as a whole.43

Busing and zoning are “permissible tool[s],” 402 U.S. at 28, 
91 S.Ct. at 1282, 28 L.Ed.2d at 574 (emphasis added), in 
fashioning a remedy. From Brown I I  forward, the courts’ 
responsibility has been equitable in nature. “ In fashioning and 
effectuating the decrees, the courts will be guided by equitable 
principles. Traditionally, equity has been characterized by a

45 In Pasadena City Bd. o f  Educ. v. Spangler, 427 U.S. 424, 96 
S.Ct. 2697, 49 L.Ed.2id 599 (1976), the Court reiterated that there was 
no "substantive constitutional right [to a] particular degree of racial 
balance or mixing . . ..” Id. at 434, 96 S.Ct. at 2703, 49 L.Ed.2d at 
607, quoting Swann v. Charlotte-Mecklenburg Bd. o f  Educ., supra, 
402 U.S. at 24, 91 S.Ct. at 1280, 28 L.Ed.2d at 571.



— SA-108 —

practical flexibility in shaping its remedies . . Brown v. 
Board o f  Educ., supra, 349 U.S. at 300, 75 S.Ct. at 756, 99 
L.Ed. at 1106,

[2] As remedies, each must be subjected to the traditional 
balancing tests required of a court of equity; effectiveness must 
be weighed against other available alternatives, and each alter­
native must be assessed in terms of its relative costs. This was 
the command of Brown II, it was the lesson of Green, it was the 
essence of Swann, it reached full flower in Milliken II.

Such a balancing is particularly appropriate in the case before 
this Court. Here, we are not dealing with a “conversion from  a 
dual to a unitary system, ” as the Swann Court faced. 402 U.S. 
at 26, 91 S.Ct. at 1281, 28 L.Ed.2d at 572. This Court has been 
dealing with the problem for 25 years and this system has had in 
place a Swann-type remedy for nine years. Here we are assessing 
the effectiveness of the remedy and such changes as are made 
should be done in light of this experience.

X. THE EFFICACY OF THE REMEDY

[3] A partial assessment of the remedy under the 1971 order was 
contained in the recitation of history in Parts II—V above. It 
cannot be overemphasized that an evaluation and consideration 
of modifications to the Swann-type remedy in effect in this 
county could not be possible had a comprehensive desegrega­
tion order requiring busing not been decreed and implemented. 
Were this Court addressing the situation in this county as it ex­
isted in 1971, there would be no alternative but to order the im­
plementation of a plan that entailed school pairings, noncon­
tiguous zoning, and substantial busing. Nothing in this opinion 
should reflect a diminution of the realization of the necessity of 
such an order in 1971.



— SA-109 —

It is only after nine years of zoning and busing to achieve a 
desegregated system and the changes that have taken place in 
the community and in the attitude manifested by the School 
Board that it is possible to reevaluate the efficacy of the remedy 
incorporated into the 1971 order. With this understanding, the 
Board’s proposed plan will now be scrutinized as to its efficacy 
in terms of:

1. Its realistic promise of achievement of a unitary system;

2. Its relative burden on black and white children;

3. Its social cost in the deterioration of public support for 
education;

4. Its educational cost; and

5. Its economic cost.

A. Realistic Promise o f  Achievement

The Board’s plan was proposed in good faith reliance upon 
the assumption that the August 1979 order of this Court and the 
legal precedent of Swann required a “ more-of-the-same” type 
of remedy. The plan would achieve an initial racial mix in which 
blacks will, in nearly all cases, be in the minority. But will these 
ratios be realistically achieved or, if initially achieved, will they 
be capable of realistic maintenance?

The spectre that haunts all of the parties to this case, the 
Court, and the community is a public school system populated 
by the poor and black, and a private school system serving the 
affluent and white. The Board presented as one of its witnesses 
Dr. Rilchard A. Pride, Associate Professor of Political Science, 
Vanderbilt University. Dr. Pride was commissioned by the 
Board to study “ Patterns of White Flight: 1971—1979,’’and his 
scholarly study and analysis appear in the record as Exhibit 247.



— SA-110

Dr. Pride took the statistic of a decline in white enrollment in 
the public schools of 22,098 between June 1971 and June 197944 
and sought to explain the decline. He found that:

“ white flight” is a significant problem in Nashville. In 
brief, it was found that in 1979 each cohort (grade level) 
was about 15 percent below what would have been ex­
pected in the absence of court-ordered busing, (2) this 
average cohort loss has increased since 1971, when the 
average cohort was only 8 percent below expectations, (3) 
most of the loss in recent years has occurred in the birth to 
first grade interval, where there was an average loss of 14 
percent from expected levels, (4) there is a steady increase 
in the private school contingent in the school age popula­
tion, including 1st grade, where the private schools cap­
tured 20 percent of the entering cohort in 1978—79, a 9 
percent rise in eight years.

White flight also manifested itself as within-system 
migration. The analysis found that there is a flight of up to 
49 percent in some cluster schools located in black areas 
from among white cohorts which began school in 
desegregated 1-4 schools. The loss in cluster area schools is 
congruent with a marked gain in non-court-ordered 1-6 
grade schools in many outlying areas.

R. Pride, Patterns o f  White Flight: 1971-1979, at 14-15 (1980). 
His most disturbing statistical prediction was that we can expect 
25-30 percent of the elementary age children to be in private 
school in the middle to late 1980s. If the goal of previous efforts 
has been to achieve an integrated school experience, the depress­

44 In June 1971, there were 66,393 white students in Metropolitan 
Nashville schools as opposed to 44,295 in June 1979.



SA-111 —

ing reality of Dr. Pride’s study45 is that our efforts have been 
less than fruitful, if not to some extent counterproductive.

This phenomenon is only partially the result of the remnants 
of racial prejudice. From the testimony in this case, the Court 
concludes that other parental concerns have a greater impact 
than the bus ride or racial prejudice. It was apparent from the 
testimony, from letters received by the Court, from letters 
received by the Board, see Collective Exhibit 170, and from the 
public hearings conducted by the Board, see Collective Exhibit 
205, that the greatest concern is with the quality of education 
received, or perceived to be received. It was testified repeatedly

45 An earlier study of Dr. Pride and Dr. J. David Woodard on the 
white flight phenomenon in Nashville, Memphis, and Louisville, en­
titled “ Busing and White Flight: Implementation Plans in Three 
Southern Cities,” was presented as Exhibit 246. In this connection, 
one should note that in the Coleman II Study, Exhibit 63B, Dr. James 
S. Coleman found that there is an almost inevitable significant loss of 
white children from public school systems when desegregation occurs. 
He concluded the analysis of his study by stating:

that the emerging problem with regard to school desegregation is 
the problem of segregation between central city and suburbs; 
and in addition, that current means by which schools are being 
desegregated are intensifying that problem, rather than reducing 
it. The emerging problem of school segregation in large cities is a 
problem of metropolitan area residential segregation, black cen­
tral cities and white suburbs, brought about by a loss of whites 
from the central cities. This loss is intensified by extensive school 
desegregation in those central cities, but in cities with high pro­
portions of blacks and predominantly white suburbs, it proceeds 
at a relatively rapid rate with or without desegregation.

J. Coleman, S. Kelly & J. Moore, Trends in School Segregation, 
1968-73, at 79-80 (1975). Dr. Coleman’s description of cities in which 
the black population is concentrated in the central city and the 
suburbs are predominantly white applies to Nashville-Davidson Coun­
ty and is the crux of the problem in this county.



SA-112 —

that the important factor is what happens at the end of the bus 
ride rather than how long the ride.

Except to the extent that the largely undefined (and unfund­
ed) magnet portion of the plan may be so designated, there are 
no educational components to the plan. It is merely a student 
assignment plan to provide racial ratios. Such a further disrup­
tion without massive efforts to make the public school system 
more attractive will further deteriorate public support and will 
engender more flight to private schools. The witnesses for all 
parties predicted such an increase as an inevitable result of the 
plan, and the Court so finds.

Further, in consideration of the efficacy of the 1971 remedy 
and the hoped-for efficacy of the Board plan, the Court receiv­
ed testimony on the improvement in achievement test scores of 
both black and white children from 1971 to the present. See Ex­
hibit 249. No scores were available before 1971 and thus no 
basis of comparison existed for pre-busing achievement. Dif­
ferent tests were utilized and the statistics for some years may 
not be comparable. However, there does appear to have been 
improvement in both black and white stanine scores in both 
math and reading over the period. The gap between black and 
white achievement has narrowed slightly, but average black 
achievement in both math and reading is still well below na­
tional norms and the gap between black and white achievement 
remains substantial.46

46 In 1978 the average reading gap ranged from 1.2 stanines in the 
second grade to 1.62 stanines in the eighth grade. Narrowing of the 
reading gap by grade level from 1971 to 1978 ranged from a .1 reduc­
tion in the sixth grade to a .65 reduction in the second and third 
grades. Improvement in recent years seems to have plateaued and little 
reduction appears after 1975. Exhibit 249. See also Report on Stan­
dardized Testing, prepared by the Board in February 1979, Collective 
Exhibit 240, in which the Board Reported that 77 percent of the public 
school students in this county achieved scores in reading and 
mathematics at a level average to or above the national test scores.



— SA-113

The “ osmosis effect,” or use of white children as a principal 
learning resource for black children, appears not to have had 
the desired result, at least in isolation. These data strongly sug­
gest the necessity for educational components both as an essen­
tial ingredient to the remedy and also as a reinforcement to 
parental perception of, and support for, the system. As noted 
by the Supreme Court in Milliken II, and as is obviously present 
in this case, “ [p]upil assignment alone does not automatically 
remedy the impact of previous, unlawful educational isolation; 
the consequences linger and can be dealt with only by indepen­
dent measures.” Milliken v. Bradley, 433 U.S. 267, 287-88, 97
S.Ct. 2749, 53 L.Ed.2d 745, 760 (1977).

B. Disparity o f  Burden

The Court finds that the plan submitted by the Board 
disparately onerates young black children with the burden of 
achieving desegregation.

As noted above, with few exceptions, black children do not 
attend the same school for grade one as for kindergarten. Also 
with few exceptions, black children are bused out of their 
neighborhoods for grades 1-4, while white children remain in 
their neighborhoods for these early grades.

The Court drove the route from North Nashville to Andrew 
Jackson School. The route covers 20.6 miles and required 42 
minutes. More significant, however, than the time or distance is 
the inaccessibility of the area by other than automobile. A child 
who becomes ill at school and needs a parent, or a parent who 
needs a conference with a teacher, will create a transportation 
problem requiring an expensive solution by taxi or a very time- 
consuming bus ride with transfers if the parent does not have an 
automobile. This defies logic and creates an almost impossible 
barrier to liason between parent and teacher. These children 
never attend a school in their neighborhood for the entire twelve 
years, unless they elect for the grades 1-2 Buena Vista option.



— SA-114 —

Similarly, young black children from the Cameron area are 
taken substantial distances to Una, Lakeview, Cole, and 
Haywood. Haynes area young black children travel to Old 
Center, Gateway, and Amqui. Wharton area young black 
children travel to the southeast corner of the county to 
Brookmeade, Gower, and Westmeade. Children in the area of 
Caldwell school (proposed for closure) would go to a yet 
undetermined school for kindergarten, travel to Baxter for 
grades 1-2, travel on out to Chadwell, Stratton, and Neely’s 
Bend in 7-8 and Madison and Goodlettsville (or Goodlettsville- 
Madison Comprehensive High School) for 9-12. Black children 
in the shadow of Head Elementary School and Pearl High 
School would go to Head for kindergarten, travel out to Hill, 
Woodmont, Sylvan Park, or Eakin for 1-4, come back in to 
Head for 5-6, travel out again to Apollo for 7-8, and out again 
to Antioch for 9-12.

No similar treatment of white children exists.

C. The Social, Educational, and 
Economic Costs

The potentially devastating social cost of a public school 
system serving only the lower socioeconomic segments of our 
society has been alluded to earlier. The prospect of such 
divisiveness, and its probable geometric progression into post­
school societal interaction, is frightening. Public education is 
the cornerstone of democracy, but public education without 
public support will almost certainly erode to the point that it will 
no longer represent this solid base upon which we can continue 
to build.

Dr. Pride’s testimony is undisputed and is supported by other 
witnesses. The Board plan will not only fail to engender a 
revival of public support, it is also uniformly predicted to 
engender further exodus from the public school system. The



SA-115 —

Court finds that such a result negates the efficacy of the remedy, 
and it is an unacceptable social cost.

The educational concessions made to facilitate achievement 
of desired ratios have also been referred to above. The choice of 
a four or five-tiered system over the educationally preferred 
three-tiered system is only one of these. The lack of continuity 
for the child and the difficulty of liason between parent and 
teacher occasioned by the use of noncontiguous zoning, par­
ticularly in the early grades, is an admitted educational detri­
ment. The inability of the child from noncontiguous zones to 
participate in extracurricular activities after school is a further 
admitted educational cost of the plan. The allocation of a finite 
amount of resources to transportation costs rather than educa­
tional improvement is inherent in the plan. Dr. Bill Wise, Assis­
tant Superintendent of Schools and a principal witness for the 
Board, testified that elimination of the cost of transporting 
students in the first four grades would be sufficient to reduce 
the pupil-teacher ratio from 25 to 1 to 15 to 1 in those grades. 
The overwhelming testimony from the educator experts was that 
the remedial benefits of smaller pupil-teacher ratios in these ear­
ly grades would far exceed any benefit obtained from an 
“ osmosis” effect. Such educational costs weigh heavily in the 
balance of this consideration of the efficacy of the remedy.

The Board plan would add transportation costs of $3.5 
million with the use of elementary magnets. (Exhibit 193). This 
Court judicially notices the existence of a national fuel crisis as 
well as a serious downturn in the economy. Fuel prices are many 
times what they were when the plan was implemented in 1971. 
Some transportation will continue to be necessary. However, ra­
tional balancing of cost-benefit demands a consideration of 
alternative methods of transportation that may be more effi­
cient, and alternatives to transportation as a remedial device.

For all of the above reasons, the Court must reject the 
Board’s proposed plan. The intervenors’ plan, although it of­



SA-116 —

fers attractive and creative ideas, must also be rejected because 
of its lack of refinement and the flaws noted in Part VIII above.

The Court lacks the resources to devise modifications to 
either the Board’s plan or the intervenors’ plan or to develop an 
alternative plan on its own. It is necessary, therefore, to refer 
the plan back to the Board under more specific guidelines. Such 
a re-referral may result in a deferral of implementation of parts 
or all of the plan for the coming school year 1980-81. Upon a 
consideration of this opinion and the guidelines hereinafter set 
out, the Board will report to the Court by July 1, 1980, on the 
feasibility of the generation of a new plan for the 1980-81 school 
year or any parts thereof and the necessity for deferral of 
development and/or implementation of any such parts.

XI. GUIDELINES AND SPECIFIC 
DIRECTIVES

A . Tier Structure

[4] The Board chose a four-tiered structure against its better 
educational judgment in order to facilitate racial balance. In 
view of the directive which follows this, the Board may now 
revert to a three-tiered structure. Whether this should be a 
K4-4-4 or some variation thereof which is more educationally 
sound and makes better utilization of buildings is a matter for 
Board determination.

B. K-4 (or variation) o f  a Neighborhood 
Character

As recognized in Swann v. Charlotte-Mecklenburg Bd. o f  
Educ., supra, transportation of young children which “ risk[s] 
the health of the children or significantly impinge[s] on the 
educational process” is to be avoided. 402 U.S. at 30-31, 91 
S.Ct. at 1283, 28 L.Ed.2d at 575.



— SA-117

For all of the reasons set forth in the findings above, the 
Board should construct its first tier of kindergarten through ear­
ly elementary grades of a neighborhood character. Intervenors 
attempted such a construction under severe time constraints. 
The expert staff of the Board can do a more refined job, draw­
ing lines that achieve better utilization of space, considering the 
need for kindergarten, special education, and other federally 
funded programs, and also maximizing the opportunities for in­
tegration.

C. Middle Schools

A 5-8 (or variation) middle school tier shoud be constructed 
whigh clusters schools from the first tier, but with the objective 
in clustering of bringing about a minimum presence of at least 
15 percent of either race in the minority at each middle school. 
If necessary to meet this objective, noncontiguous zones may be 
utilized. These should be held to a minimum and where utilized, 
consideration should be given to assignment of the nearest such 
black or white children to create such presence. In this respect, 
consideration should be given to transportation accessibility by 
public transportation between the noncontiguous zone and the 
assigned school, as more fully discussed below. The school 
chosen for the middle school in each cluster should be as cen­
trally located as possible to the whole of the students assigned 
thereto. Exceptions to this objective may be dictated by the 
location of buildings large enough to accommodate the student 
population.

The selection of 15 percent is arbitrary, as is any other 
number which may be chosen. Preparation of students to live in 
a pluralistic society makes a biracial, intercultural experience 
highly desirable. However, it was not the intent of Brown and 
its progeny to require blacks always to be in the minority; nor 
should these precedents have been read to require assimilation 
or amalgamation. It is not undemocratic, nor does it violate



— SA-118

equal protection of the laws to have a system that allows for 
recognition of and respect for differences in our society. A rigid 
adherence to racial ratios premised upon the social goal of 
assimilation, which in the process demeans, diminishes, or 
benignly neglects cultural and ethnic pride as well as differences, 
is not only constitutionally unrequired, but socially undesirable. 
(See testimony of Dr. Walter Leonard.) The 15 percent 
minimum objective was chosen at the suggestion of plaintiffs 
because it seems to represent a reasonable attempt to provide in- 
tercultural and interracial contact as a foundation for social 
harmony. As such it is a goal worthy of the wholehearted sup­
port of parents and the community, and for the attainment of 
which some expense and inconvenience should gladly be en­
dured.

D. High Schools

The Board’s initial plan after 1971 (with tacit approval from 
the Court at that time) of ringing the city with comprehensive 
high schools would have brought about complete desegregation. 
Had the job been completed and had there not been some errors 
of judgment in school placement, much of the present con­
troversy could have been avoided. Ethnic attachment and in­
sistence on the retention of Pearl, and community and parochial 
insistence upon the retention of Pearl, and community and 
parochial insistence upon the retention of Bellevue, Joelton, 
and Cohn have created political problems for the Board in the 
pursuit and implementation of its comprehensive program. The 
remoteness of Antioch and DuPont has created logistical pro­
blems and impeded efforts that would have further im­
plemented this educational decision. Controversy has arisen 
concerning the validity of comprehensive high schools as an 
educational vehicle. Some community pressure has been exerted 
for at least a partial return to, or the option of, a smaller, tradi­
tional high school. Intervenors suggest through their equity plan



— SA-119 —

the provision of such an option. Their suggestion has both 
educational merit and offers the hope of renewed support for 
the system. They err in the excess, however, from a desire to 
please as many as possible. By proposing the maintenance of all 
existing high schools, intolerable resegregation results, pro­
tected enclaves persist, and, pragmatically, serious underutiliza­
tion of space is inevitable. The Board should consider the use of 
some traditional type high schools either as magnets per se, or 
containing magnet programs. Pearl, East, and West End appear 
to be well located geographically for such a magnet approach. 
.Ail are in or near the central city and are served by public 
transportation. The number and location of such magnet- 
traditional high schools is a matter for Board determination in 
the exercise of its educational function and in consideration of 
financial constraints. 1

1. Goodlettsville-Madison-Trinity Hills

This proposed new comprehensive high school has been 
recommended by the Board since 1972. Land has been acquired. 
Building age and overcrowding have threatened loss of ac­
creditation to existing high schools in the area served. This con­
struction was a part of the initial plan of the Board for a ring of 
comprehensive high schools and promises to aid substantially in 
achieving desegregation. It should be built and the Court ap­
proves this portion of the Board’s plan with attendance zones 
set out in Exhibit 14B. However, as discussed infra, the Board 
should include in the attendance zone and construct accom­
modations for the Old Hickory area (northern half of DuPont 
zone) in this school. These children can cross the river at Old 
Hickory Boulevard and are as close or closer to the site as most 
of the remainder of the zone. There is natural affinity between 
the Old Hickory and Madison communities. Such a zone 
modification will relieve overcrowded conditions in the DuPont 
zone, offer comprehensive education to the children in this



— SA-120

/one, and will further integration without the use of the present 
noncontiguous zone for DuPont from inner city North 
Nashville. The lower half ot he DuPont zone can be assigned to 
McGavock.47

2. Pearl-Cohn Inner City Comprehensive High School

The Board has determined the advisability of an inner city 
comprehensive high school and proposed to construct it in the 
approximate center of a zone now served by Pearl and Cohn 
High Schools. Although the economic justification may be sub­
ject to some question,48 other considerations weighed heavily 
with the Board and are equally persuasive to the Court. Both 
Pearl and Cohn have a long and rich heritage of service to their 
communities. Both have provided outstanding graduates to the 
region and the nation. Adjoining as they are geographically, 
they will bring together a natural racial mix that will enhance the 
desegregation effort. The combination of names and com­
munities will preserve the symbolic significance of the 
predecessor schools, and will provide an inner city structure of­
fering comprehensive education to a contiguous and natural 
zone. Assignment of children in North Nashville (presently

47 In 1983, DuPont is scheduled for only grades 10-12 with a 
population of 967 and a capacity of only 784. McGavock will have 438 
empty seats. The addition of some seats to Goodlettsville-Madison- 
Trinity Hills, plus the relief to be anticipated from some students at­
tending magnet high schools should easily accommodate these Du­
Pont area students. In addition, the DuPont anticipated student body 
includes students from a noncontiguous zone in North Nashville 
which will be discussed in the next section. Such a solution eliminates 
the need for $1,365,000 expenditure for an addition to DuPont. Ex­
hibit 193.

48 See discussion of the availability of seating projected for 
Hillwood, Hillsboro, and Overton, note 49 infra. However, with the 
closure of Bellevue, Antioch, and DuPont as hereinafter discussed, 
and with the assignment of students from the noncontiguous zones in 
the natural Pearl-Cohn area from Antioch and DuPont back to a 
Pearl-Cohn Comprehensive High School, this excess capacity will not 
be as present.



SA-121

assigne to distant DuPont) and children from the Pearl-Head 
area (presently assigned to distant Antioch) will increase student 
and community identity with the school, and reduce transporta­
tion costs. Adjustment of the southern boundary of the zone, 
see Exhibit 164, to West End Avenue will increase the white 
percentage of students.

The construction of Pearl-Cohn Comprehensive High School 
is approved.

3. Bellevue, Antioch, DuPont, Joelton

These relatively small high schools in the outer fringes of the 
county have posed a problem to the Board both in implementa- 
tio ao f its comprehensive high school plan, and in its efforts to 
achieve a desegregated system. There has been understandable 
community resistance to their closure. Attempts to bring about 
a black presence in Antioch and DuPont have necessitated dis­
tant noncontiguous zones and excessive transportation costs. 
All four of these noncomprehensive schools should be closed or 
converted to middle school or other uses.

Whites Creek was built to accommodate Joelton students. 
Hillwood was built to accommodate Bellevue students. Antioch 
students can be accommodated between Glencliff and 
Overton.49 DuPont area students can be accommodated bet­
ween the new Goodlettsville-Madison-Trinity Hills Comprehen­
sive High School and existing McGavock.50

49 In the 1963 projection (Exhibit 155) Glenciiff will have 308 empty 
seats and Overton will have 483 empty seats. Antioch is projected to 
have 1295 students, including 263 students from the noncontiguous 
Pearl-Head area zone. Excluding these students after their assignment 
to Pearl-Cohn, see section 2 supra, there would be 241 more students 
at Glencliff and Overton above capacity. Some adjustment of zone 
lines may be necessary from Overton to Hillsboro, which contains 792 
empty seats, or the overage may be taken care of by the magnet 
schools, discussed in section E infra.

50 McGavock is projected to have 438 empty seats in 1983.



— SA-122

4. Proposed Addition to Maplewood

In the Long Range Plan, with the building of Goodlettsville- 
Madison-Trinity Hills, Maplewood is projected to have a stu­
dent body of 1734, 54 percent black, and a permanent capacity 
of only 1091 plus 499 portable classroom spaces. (Exhibit 155). 
The Board, therefore, proposes to build a $4,775,000 addition 
to Maplewood to accommodate 700 students. Since this deci­
sion does not affect desegregation efforts, the Court does not 
either approve or disapprove the proposal. However, adjacent 
Whites Creek will have 372 empty spaces in the same Long 
Range projection. If East is opened as a magnet school, much 
of this overcapacity should also be relieved. Cost consciousness 
and prudence would seem to dictate a delay in this capital ex­
penditure to determine if zone adjustments to Whites Creek and 
magnet enrollments do not obviate this problem.

5. DuPont High School

As noted above, DuPont should be closed. The proposed ad­
dition of $1,365,000 to this fringe area school would further 
frustrate efforts to achieve desegregation. This expansion is 
disapproved.

E. Magnet Schools

The use of magnet schools as an adjunct to a pupil assign­
ment plan not only offers a voluntary component to the 
desegregation plan but also adds significantly to the quality of 
the educational offering. It has proven effective in a number of 
cities as a method of achieving voluntary integration.51 In- 
tervenors demonstrated a substantial desire on the part of many 
residents of the county for the option of more traditional-type 
high schools. It appears that the utilization of magnet-type pro­

51 See N. Estes & D. Waldrip, Magnet Schools: Legal and Practical 
Implications (1978).



— SA-123 —

grams contained within several such traditional high schools, 
would be a significantly beneficial component to the plan. If 
these traditional high schools were open-zoned, centrally 
located, accessible by public transportation, offering unique 
educational opportunities, they should attract an integrated stu­
dent body. Pearl, East, and West End all seem to meet these 
criteria. Pearl in particular should be considered for such alter­
native use. It is an attractive, functional building, accessible by 
several MTA routes. Such a usage would preserve the building 
as a source of black pride and symbolism in the North Nashville 
community. East and West End offer similarly attractive loca­
tions and existing facilities. Different magnet programs for each 
school should be considered.

This component of the plan is left to further development by 
the Board. Substantial savings should result from decreases in 
transportation costs in the elementary grades, from use of MTA 
services, discussed infra, and from reduction of noncontiguous 
zones. These resultant savings should be applied to this and 
other educational components of the newly devised plan.

F. Transportation

1. Use o f  Metropolitan Transit Authority [MTA]

One of the most appealing parts of the intervenors’ plan was 
the proposal for close cooperation with and maximum utiliza­
tion of the MTA system. It was shown that in many instances, 
MTA buses travel out toward suburban schools in the mornings 
virtually empty in order to bring commuters into the city to 
work. This is generally near school starting time. In the after­
noons, MTA buses travel out with some of the same commuters 
only to return empty. It was further pointed out, and alluded to 
earlier in this opinion, that the availability of MTA transporta­
tion to a school tends to eliminate a feeling of alienation from 
the school, enhance the opportunity for parent-teacher liason, 
and open opportunities for after-school participation in ex­



SA-124 —

tracurricular activities. MTA could establish feeder lines to 
operate in conjunction with shuttle buses and thereby reduce the 
number of buses and drivers required by the Board. The oppor­
tunities for cooperation and substantial savings in transporta­
tion cost are many. They await only imaginative exploration by 
transportation experts for the Board and the MTA.

The Court is assured of MTA cooperation. The Court directs 
the Board to immediately initiate and pursue discussions with 
MTA and to incorporate maximum utilization of public 
transportation in the design of the middle school plan and high 
school transportation services.

One of the major deficiencies of the present plan and the 
Board’s proposed plan is the absence of any consideration of 
transportation for students who desire to participate in after­
school, extracurricular activities. The plan must incorporate a 
reasonable accommodation of this essential component of an 
education.

Discussions with MTA and planning for open-zoned magnet 
schools must also consider public transportation as a comple­
ment, if not the primary resource, in achieving access to such 
magnets.

G. Educational Components

1. Elementary Schools

Substantial savings will accrue from the elimination of 
transportation for racial balance in the elementary schools af­
fected by this order. Savings realized from this source should be 
utilized for educational improvement throughout the system. 
The Board shall consider and report its recommendations for 
educational components to the plan to the Court. Such educa­
tional components should be directed toward:

1. Provision of intercultural experiences on a periodic basis to 
those K-4 children who, because of lack of integrated housing in



— SA-125 —

their zoned neighborhoods, are in largely black or largely white 
elementary schools;

2. Reduced pupil-teacher ratios in those schools in which the 
achievement level of the school is below the average for the 
system;

3. Remediation efforts in those schools or classes within 
schools made up largely of socioeconomically deprived children 
who suffer the continuing effects of prior discrimination;

4. Such other areas as the professional staff may recommend 
and the Board may consider valid in developing ways to attack 
the problem of disparate achievement between black and white 
children, and, in general to improve the quality of education in 
Metropolitan Nashvilie-Davidson County.

2. Curriculum on Black History and Culture

Plaintiffs persuasively represented that this area of education 
has been largely ignored. The contributions of the black men 
and women of this country to the progress of our nation is a 
source of inspiration to children, black and white. The Board 
responded with a broad brush assertion, without specific ex­
amples, that such instruction has been generally incorporated 
into the curriculum. No evidence was offered that this is being 
done in a meaningful way or that its implementation was 
monitored to insure its realization. The plan of the Board will 
specifically address this question and propose methods of 
monitoring inclusion of such subject material into the regular 
curricula, as well as the offering of specific courses on black 
history and culture in the comprehensive high schools.

3. In Service Training and Teacher Assignment

The Board’s proposed professional development program, 
“ Together We Can-Together We Will,” Exhibit 254, outlines a 
positive approach to development of understanding, sensitivity,



— SA-126

and cooperation in the implementation of a desegregation ef­
fort. It represents a good start. The Board and its staff should 
study further efforts in this regard and propose as a part of the 
revised plan specific efforts toward:

1. Insuring that teachers and staff are required to undergo 
sensitivity training to the special needs of black children from an 
underprivileged social environment; and

2. Insuring that the most sensitive of such teachers are assigned 
to those schools and classes where the desegregation experience 
is likely to be most problematic.

H. Faculty-Staff Ratios

Consideration of black-white ratios in the composition of 
faculty and staff was reserved until a later stage of the pro­
ceedings. Nevertheless, some testimony with respect thereto 
crept into the hearings thus far. Pending further hearings, the 
revised plan of the Board should include an affirmative action 
recruitment and hiring program that emphasizes the replace­
ment of vacancies occurring by normal attrition with black per­
sonnel.

I. Involvement o f  Plaintiff 
and Intervenors

The Court has been impressed by the generosity of spirit and 
cooperative attitude demonstrated by the parties and counsel 
throughout the hearings on the matter. The Court believes this 
manifestation of good faith and common desire to achieve a 
workable solution to difficult problems is representative of the 
enlightened attitude of the great majority of the general 
populace of this county.

It is a solid foundation on which to build and we must nurture 
the climate thus created. In this regard the plaintiffs and in­
tervenors are each directed to designate at least one represen­



— SA-127 —

tative of their choosing to attend regularly scheduled work- 
discussion sessions with staff members of the Board who are 
responsible for preparation of the report ordered by this Court 
on July 1, 1980. Utilization of these persons as a resource, and 
information relayed from them back to the parties can faciliate 
finalization of a plan and continue to foster the spirit of 
cooperation. It is not necessary to reiterate the non-adversarial, 
non-traditional character of the effort in which we are engaged.

J. Involvement o f  the Community

It is the fervent hope of this Court, in its official capacity, and 
in its unofficial capacity as a resident and parent, that the plan 
which eventually emerges from these efforts will be one which 
promotes equal educational opportunity, enhances interracial 
and intercultural communication and understanding, and im­
proves the quality of education offered to all the children of this 
community.

To insure the success of the plan, the success of public educa­
tion in Davidson County, and the success and happiness of our 
community in the future, it will be essential to enlist and utilize 
the good will and support of the community. The Board should 
develop a plan to enlist the aid of such groups as The League of 
Women Voters, Leadership Nashville, Metropolitan Nashville 
Community Education Alliance, the Metropolitan Mayor and 
Council, the media, civic and service organizations, to name only 
a few of the infinite resources available.



SA-128 —

SUPPLEMENTAL APPENDIX D

Robert W. Kelley et al. 

v.

Metropolitan County Board of Education of Nashville 
and Davidson County, Tennessee, et al.

v.

State of Tennessee et al.

Nos. 2094, 2956.

United States District Court,
M. D. Tennessee,

Nashville Division.

April 17, 1981.

In a school desegregation case the board of education prof­
fered its desegregation plan to which plaintiffs objected and 
proposed their own plan. The District Court, Wiseman, J., re­
jected plaintiffs’ proposed plan as haphazardly constructed and 
unworkable and approved board’s plan which included educa­
tional components and pupil assignment components.

Board’s plan ordered adopted.

1. Federal Civil Procedure (key) 1127

Where on its face, the elementary portion of plaintiffs school 
desegregation plan was nothing more than an attack on order 
directing board of education to develop a new plan following 
certain specific directives and guidelines and it was contrary to 
plaintiffs own expert proof, such was stricken as impertinent 
and unresponsive to the court’s directive. Fed.Rules Civ.Proc. 
Rule 12(0, 28 U.S.C.A.



— SA-129 —

2. Schools (key) 13(6)

Board of education’s desegregation plan, which consisted of 
educational components and pupil assignment components, 
rather than plaintiffs plan was adopted where plaintiffs plan ap­
parently was hastily drawn while board’s plan, with modifica­
tions, met concerns with K-4 remediation, multicultural inter- 
cultural exchange, magnet schools, teaching of black history 
and middle schools and attendance zones were drawn to comply 
with mandate to achieve a minimum of 15% representation by 
race in middle schools without undue transportation burden on 
minority students.

Avon N. Williams, Jr., Richard Dinkins, Nashville, Tenn., 
for plaintiffs.

William R. Willis, Jr. and Marian F. Harrison, Nashville, 
Tenn., for defendant Metropolitan Bd. of Ed.

Frank J. Scanlon, Senior Asst. Atty. Gen., Nashville, Tenn., 
for third-party defendant State of Tenn.

MEMORANDUM

WISEMAN, District Judge.

This Court’s Memorandum Opinion and Order of May 20, 
1980, directed the Defendant Board of Education to develop a 
new desegregation plan following certain specific directives and 
guidelines regarding educational components and pupil assign­
ment as set forth in that Opinion.' Those directives and 
guidelines resulted from many days of testimony beginning in 
the summer of 1979, and culminating in over 25 trial days in 
March and April of 1980. After the lengthy hearings, this Court 1

1 See, Kelley v. Board o f Education, 492 F.Supp. 167 (M.D.Tenn. 
1980).



— SA-130 —

determined that a different remedy for the remaining vestiges of 
segregation in Nashville was required, in view of the “ tortuous 
twenty-five year history of desegregation efforts in 
Metropolitan Nashville,” and the specific burdens and benefits 
found to emanate from the Swann remedy ordered by this 
Court and implemented by the Defendants in 1971. This Opin­
ion considers the plan offered in the Board’s effort to comply 
with the May 20, 1980, Order, and the Plaintiffs’ proposals and 
objections relating to the ordered plan.

THE RECORD PRIOR TO THE 
1981 HEARINGS

Prior to this Court’s Order of May 20, 1980, many matters 
had gone unresolved in this litigation since 1971.2 The Plaintiffs 
had filed several objections to the operation of the Court- 
ordered 1971 plan, which objections were addressed primarily 
to alleged disparate burden in transportation of young black 
children. As a result of these objections, along with other fac­
tors such as the Board’s need for additional classroom space in 
the outlying areas not involved in the 1971 plan,3 and the ever- 
increasing costs of transportation under the plan, the Court 
ordered the Board, on August 27, 1979, to develop a new 
desegregation plan for the entirety of Davidson County.4 5 After 
many weeks of Board deliberation and community input at the 
Board level, the “ Waldrip Plan” 3 was presented for the Court’s

2 Kelley v. Board o f Education, 492 F.Supp. 167, 168-75 
(M.D.Tenn.1980).

3 The 1971 Swann remedy left a ring of schools in the outlying areas 
untouched by the plan because of the distances involved in transporta­
tion to and from these schools.

4 Kelleyx. Board o f Education, 479 F.Supp. 120 (M.D.Tenn.1979).

5 The planning team for the Board was headed by Dr. Donald 
Waldrip, whose qualifications were set forth in the Court’s Memoran­
dum Opinion of May 20, 1980. Kelley v. Board o f Education, 492 
F.Supp. 167, 177 (M.D.Tenn.1980).



— SA-131 —

scrutiny. The Plaintiffs were invited by the Court to submit an 
alternative plan, but this offer was ultimately declined. Instead, 
the Plaintiffs chose to rest their case on specific criticisms leveled 
at the Waldrip Plan by the Plaintiffs’ expert witness, Dr. Hugh 
Scott. A group of intervenors were also permitted to file a plan.

Consideration of the two plans, along with the Plaintiffs’ ob­
jections, resulted in the Court’s rejection of both plans, and in 
the Court’s directive to the Board to develop another plan 
following the specific guidelines set forth in the Court’s Opin­
ion. Based on the testimony offered during the hearings on the 
two plans, this Court made an effort to carefully balance the 
benefits and burdens imposed by the Swann-type remedy 
employed in the 1971 Order and in the Waldrip Plan, and set 
forth the following directives for inclusion in the new Board 
proposal:

I. Educational Components.

A. Intercultural experiences for children in predominately 
one race schools.

B. Reduced pupil-teacher ratios in schools having achieve­
ment levels below the average for the system.

C. Remediation efforts in schools or classes made up largely 
of socioeconomically deprived children who suffer the continu­
ing effects of prior discrimination.

D. Black history and black culture curriculum.

E. Teacher in-service training in preparation for the im­
plementation of the plan.

F. Magnet school(s) offering unique educational oppor­
tunities.

G. Middle school programs.



— SA-132 —

II. Pupil Assignment.

A. A three-tiered system of grades utilizing K-4, 5-8, 9-12, or 
some reasonable variation thereof.

B. Schools having a neighborhood character for the lower 
elementary grades without the use of non-contiguous zoning ar­
rangements.

C. Middle schools having a minimum 15% representation of 
either race, utilizing non-contiguous zoning where necessary.

D. Use of the closest other race population for necessary non­
contiguous zones.

E. High school zones in conformity with the Court’s direc­
tive, including closing and/or changing the use of Bellevue, 
Joelton, DuPont, Antioch, Madison, Pearl, and Cohn high 
schools.

F. Construction of the Goodlettsville-Madison and Pearl- 
Cohn comprehensive high schools, with the corresponding 
closure or change in use of Goodlettsville, Madison, Pearl, and 
Cohn.

G. Delay the addition to Maplewood High School and con­
sider adjustments to the Whites Creek zone and the impact of 
proposed magnet school enrollments to acommodate the large 
enrollment at Maplewood.

On June 25, 1980, the Defendant Board of Education made a 
preliminary report to the Court regarding a timetable for im­
plementation of the Court’s Order. Pursuant to what the Board 
representatives deemed to be the suggestion of the Plaintiffs, 
the Board’s proposed timetable included a plan where first 
graders could remain in the school wherein they attended 
kindergarten, thereby presumably aiding in the transition be­



— SA-133 —

tween kindergarten and first grade.6 A hearing was held on the 
proposed timetable for implementation, and the Plaintiffs ob­
jected to the rezoning of first graders during the interim. 
Following the hearing on July 15, 1980, the Court entered an 
Order rejecting the first grade proposal, approving the re­
mainder of the timetable for the pupil assignment components, 
and relieving the Defendants of the obligation to confer with 
representatives of the Plaintiffs and Intervenors during the 
planning process.7

The Board filed its proposed desegregation plan on January 
19, 1981.8 Following the filing, this Court directed the Plaintiffs 
and the Intervenors to respond by way of specific objections to 
thejplan by February 9, 1981. The Intervenors moved for leave 
to withdraw from active participation in the hearings on the new 
plan, and this motion was granted.

6 Dr. Hugh Scott, expert witness for the Plaintiffs, testified exten­
sively about the need for a smooth transition between these grades.

7 The Court also ordered the Board to reconsider its decision to per­
mit 12th graders to remain at Bellevue and Joelton, while closing those 
high schools to other grades pursuant to the Court’s directive. The 
Board subsequently voted to close those schools as high schools for 
the school year 1980-1981, which was reported to the Court on July 
25, 1980.

8 Counsel for the Board noted in a response to the Plaintiffs’ later 
request for additional time to respond to the plan and in the hearings 
on March 30, 1981, that the Plaintiffs had access to the plan long 
before January 19, 1981. Specifically, Board counsel stated as 
follows; Details of the proposed plan were widely aired in public 
meetings during November and December, 1980. On or about 
December 15, 1980, after the approval of the long range pupil assign­
ment plan by the Board, a copy of the statistical data supporting the 
plan was forwarded to the Plaintiffs, and an invitation to view the 
bulky maps, which had not yet been duplicated, was extended to the 
Plaintiffs by Board counsel. The entire package of maps and 
statistical information was forwarded to the Plaintiffs on or about 
January 12, 1981, with the remainder of the plan, including the in­
terim proposals and educational components, being delivered to the 
Plaintiffs on January 19, 1981. No exception was taken to this 
representation of the events by Plaintiffs’ counsel.



— SA-134 —

On or about February 6, 1981, the Plaintiffs moved the Court 
for additional time to file objections up to and including March 
31, 1981. Accompanying that motion was an initial submission 
of objections, and an indication that the Plaintiffs had not been 
able to meet with one or more possible expert witnesses regar­
ding the plan. The motion was granted in part, extending the 
time for responding until March 16, 1981, with the notation that 
any hearings, if necessary, on the plan and objections would 
begin on March 30, 1981, and would continue thereafter until 
concluded.

On March 10, 1981, the Plaintiffs filed a second motion for 
extension, based on the fact that the Plaintiffs’ lead counsel was 
ill and hospitalized. From this motion, and from a status con­
ference on or about March 10, 1981, attended by Plaintiffs’ 
counsel, this Court and the Defendants learned for the first time 
that an alternative plan was contemplated by the Plaintiffs. The 
request for an extension was granted until March 25, 1981, giv­
ing the Plaintiffs leave to reapply for an extension if counsel’s 
health had not improved. The Order contained a further nota­
tion that hearings remained scheduled for March 30, 1981.

On March 25, 1981, the Plaintiffs filed their supplemental 
response, along with an alternative plan. On March 27, 1981, 
the Defendants moved to strike the Plaintiffs’ plan and to af­
firm the Board’s plan without a hearing. The Court then 
ordered a hearing on all pending motions for determination of 
status of the case for March 30, 1981.

THE PLAINTIFFS’ PROPOSED PLAN

On March 30, 1981, the Court heard the Board of 
Education’s “ Motion to Strike Plaintiffs’ ‘Conceptual’ Pupil 
Assignment Plan and to Approve Defendants’ Proposed Plan 
Without Hearing.” The Court construes this motion as one 
made under Rule 12(f), Federal Rules of Civil Procedure, as a 
motion to strike “ any insufficient defense or any redundant, 
immaterial, impertinent, or scandalous matter.”



The primary basis for the Board’s motion to strike the Plain­
tiffs’ plan and certain objections to the Board’s plan is that the 
primary thrust of the Plaintiffs’ response constitutes an attack 
on the Court’s Order of May 20, 1980, rather than an effort to 
produce a plan to comply with the Court’s Order. In addition, 
the Board argues that the Court’s Order of May 20, 1980, was in 
large measure based upon the testimony of the Plaintiffs’ own 
expert witness, Dr. Hugh Schott. An examination of the Plain­
tiffs’ plan and many of their objections reveals that the Board’s 
position is substantially correct.

The Plaintiffs’ proposed plan recognizes from the outset that 
elementary children will be transported long distances outside 
theit neighborhoods, contrary to the Order of May 20, 1980. 
Furthermore, the elementary pairings were developed so as to 
closely approximate the current ratios existing in the community. 
The pairings and clusterings necessitate at least a four-tiered 
grade structure (which is inconsistent with the position taken by 
the Plaintiffs at the hearing), with students attending at least 
two elementary schools, one middle school, and one high 
school. Some students would attend three elementary schools 
since kindergarten is often separated from grades one and two. 
(Exhibit 284, offered for Identification).

In designing their elementary and middle school pairings and 
clusterings, the Plaintiffs have used the same method rejected 
by the Court in the form of the Waldrip Plan previously 
presented by the Board. Both the Waldrip Plan and the Plain­
tiffs’ plan use “ more-of-the-same remedy” employed by the 
Court in 1971, and rejected by the Court in 1980.9 This Court 
made a specific factual finding that this remedy is no longer ap­

— SA-135 —

9 This is where that similarity stops, however. The Waldrip Plan 
was fully fleshed out with improved feeder patterns and as little 
transportation as possible under a proposed Swann-type remedy. This 
is not the case with the Plaintiffs’ plan.



— SA-136 —

propriate in Nashville, after carefully weighing benefits against 
burdens and the nine year operational history of the school 
system under the Swann-type remedy.

A large portion of this Court’s Order of May 20, 1980, con­
sisted of this balancing process—weighing the benefits of the 
Swann-type remedy against its burdens. The costs and burdens 
were largely derived from the testimony of Dr. Hugh Scott, the 
Plaintiffs’ expert witness. He testified to the educational impor­
tance of a three-tiered school system, and the deleterious effect 
of disrupting a child’s early education by splitting the primary 
grades among different schools. He testified further to the im­
portance of parental involvement in early childhood education, 
which he felt could only be fostered by having the schools in 
such a location that the parent could frequently visit the school, 
talk with teachers, become personally involved, and contribute 
services. He also testified that the “ osmosis effect” or 
“ rightness of whiteness” approach to desegregation mandating 
a given racial percentage in each school and rejecting 
predominately black schools was inherently racist and without 
educational validity.

[1] This Court was impressed by Dr. Scott’s testimony and 
relied upon it, only to have an elementary school plan proposed 
by the Plaintiffs which was totally contrary to this most per­
suasive testimony. Since the elementary portion of the Plain­
tiffs’ plan on its face constitutes nothing more than an attack on 
the Court’s Order of May 20, 1980, and is contrary to the Plain­
tiffs’ own expert proof, it is stricken as impertinent and 
unresponsive to the Court’s directive under Rule 12(f), Federal 
Rules of Civil Procedure.

While the obvious failure of the Plaintiffs’ elementary school 
proposal to comply with the Court’s Order of May 20, 1980, 
precluded testimony on that portion, the Court did permit the 
Plaintiffs to present their middle school plan, which their new



— SA-137 —

expert witness, Dr. William M. Gordon,10 11 stated was indepen­
dent of the elementary school portion."

Throughout Dr. Gordon’s testimony, it was apparent that all 
portions of the Plaintiffs’ proposed plan, including the middle 
school plan, were hastily drawn by consultants12 who had little 
or no familiarity with the demography, the major arteries, the 
location of children, the capacities of buildings, and other perti­
nent information. Further, the consultants who participated in 
the drawing of the Plaintiffs’ plan did not take time to study 
these variables or to visit the city for any appreciable length of 
time. Dr. Gordon admitted that an entire chapter of his book 
regarding desegregation in America was devoted to the impor­
tance of knowing these crucial details regarding a city when 
preparing a desegregation plan.

The Plaintiffs’ middle school plan is superficial at best. The 
consultants merely paired the Board’s proposed elementary 
zones into middle schools, with a total lack of regard for 
building capacities and the distances between non-contiguous 
zones for the schools. No projected enrollments were set forth 
in the Plaintiffs’ plan, and accordingly, it was impossible to 
evaluate how well the mechanics of the system would work. Mr. 
Ray Osborne, Director of Zoning and Real Property for the

10 Dr. Gordon is a Professor in the Department of Educational 
Leadership, Miami University, Oxford, Ohio. (Exhibit 280). He is a 
member of HGH Associates, an educational consulting firm specializ­
ing in desegregation plans.

11 The Plaintiffs did not propose an alternative high school plan, 
thus apparently accepting the Board’s proposal for high schools.

12 In addition to Dr. Gordon, see note 10, supra, Dr. Larry W. 
Hughes (Exhibit 281), and Dr. James B. Andrews (Exhibit 282), par­
ticipated in the drawing of the Plaintiffs’ desegregation plan. Dr. 
Hughes and Dr. Andrews are also members of HGH Associates.



— SA-138

Board of Education, calculated enrollments for the Plaintiffs’ 
middle schools and found numerous schools to be 
overcrowded.13

An examination of the map depicting Plaintiffs’ middle 
school plan (Exhibit 266), reveals numerous instances of 
unreasonable zoning arrangements for both races. For example, 
students in the Cumberland non-contiguous zone on the 
Sumner County line would be required to ride to a zone on the 
Cheatham County line to attend Cumberland. Students in the 
Antioch non-contiguous area in the innercity would be 
transported to Antioch in southwest Nashville. Students in the 
Joy and Stratton areas would be transported across the 
Cumberland River to Donelson. Students in the Ross area near 
the central city would be required to ride to Goodlettsville. 
Other pairings are similarly unreasonable,14 but in all there is an 
apparent disregard for distances, for the location of rivers, for 
bridges, and for major thoroughfares. On cross-examination, 
Dr. Gordon could not show the Court how a bus would travel 
from one of these distant zones to another, thereby indicating a 
total lack of familiarity with such practicalities.

13 For example, it was calculated that Meigs Middle School would 
have an enrollment of 1348, with a capacity of 850, that Rose Park 
Middle School would have an enrollment of 1235, with a capacity of 
690, that McMurray would have an enrollment of 1280, with a capacity 
of 926. Other schools were apparently severely underutilized. For ex­
ample, Moore would have an enrollment of 404, with a capacity of 
906, Pearl would have an enrollment of 852, with a capacity of 1295, 
and Cohn would have an enrollment of 744, with a capacity of 1136.

14 In addition to those set forth in the text, see the remaining pair­
ings on the map, Exhibit 266:

Wright — Glencliff, Early, Brookmeade
Meigs — Warner, Glengarry, Hickman, Haywood
Apollo — Una, Kirkpatrick, Fall-Hamilton
Rose Park — Carter-Lawrence, Berry, Lakeview



SA-139

The middle school plan also fails to abide by the Court’s 
Order of May 20, 1980, as well as the testimony of Dr. Scott, the 
Plaintiffs own expert witness. Indeed, the testimony of Dr. Gor­
don revealed that his “ theory” of desegregation was totally con­
tradictory to that of Dr. Scott. While Dr. Scott had previously 
rejected the racial balance approach, had attacked the validity 
of the theory that black children must sit beside white children 
to learn, and had applauded the idea that black schools were not 
inherently bad, Dr. Gordon’s testimony and the middle school 
plan presented by the Plaintiffs take the opposite position.

Dr. Gordon and his associates sought specifically to structure 
school zones reflecting the racial makeup of the community. 
Blacjcs are in the majority in only one of the Plaintiffs’ proposed 
24 middle schools.15 In drawing the zone lines in this fashion, 
Dr. Gordon created the impractical transportation routes 
described above. The Plaintiffs’ plan does not comply with the 
Court’s order that middle schools should have a minimum of 
15% either race, which was a modification of the racial balance 
approach based on the Plaintiffs’ previous position expressed 
by their expert witness, Dr. Hugh Scott.

From all of the above, it is apparent from the middle school 
plan, as from the elementary school plan, that the Plaintiffs 
have not complied with the Court’s Order of May 20, 1980. The 
plan they have created is at best haphazardly constructed and 
unworkable. Accordingly, the Plaintiffs’ middle school plan is 
rejected.

THE BOARD’S PLAN

[2] As the Court decreed in its Order of May 20, 1980, the 
Board of Education’s plan consists of two parts—the educa­
tional components and the pupil assignment components.

5 Pearl.



— SA-140 —

I. The Educational Compontents.

The responsibility for developing the educational components 
was divided into six bi-racial committees of central office staff 
members, teachers, and citizens, for each the various sub­
components: (1) K-4 remediation; (2) multicultural/inter- 
cultural exchange; (3) magnet schools; (4) black history; (5) 
middle schools. (Exhibit 273). The timetable for development of 
the various components was approved by this Court on July 15, 
1980, and the committees’ work has substantially complied with 
the time frame set forth, with the possible exception of the 
magnet school proposal discussed more fully, infra.

In line with the Court’s directive, the Board has proposed a 
K-4 Intervention/Remediation Program, which will be directed 
toward those schools or classes where the achievement levels are 
below the average for the system and/or where the majority of a 
school’s population is made up largely of socio-economically 
deprived children who suffer the continuing effects of prior 
discrimination. The cornerstone of this proposal is the transi­
tion class whereby students who meet the Court’s criteria and 
who are unable to perform at grade level in the normal 
classroom setting will be placed in a transition class at the end of 
kindergarten and/or first grade. The students will stay in these 
half-step classes for one semester or the entire year, depending 
upon their needs. Here, pursuant to the Court’s directive, adult- 
student ratios will be lowered, and the cost borne in part by 
decreased transportation costs associated with the K-4 schools 
having a neighborhood character.16 Ms. Lucille Nabors, Assis-

In the Board’s pleading accompanying their plan is the notation 
that on January 13, 1981, the Board of Education adopted a resolu­
tion made by Mr. George Cate and seconded by Mrs. Barbara Mann 
regarding funding of the educational components. This motion reads 
as follows: “ I move that the Board adopt as a policy that to the extent 
that money is saved in 1981 and later years in transportation by adop­
tion of the K-4 neighborhood plan, that such funds be applied to the 
educational component of the plan with priority to the K-4



SA-141 —

tant Superintendent for Program and Staff Development, 
testified at length about these programs, and stated that they 
were ready for implementation in those elementary schools in­
cluded in the approved interim plan, discussed infra. Other 
remediation programs planned by the staff include basic 
development curriculum in math, language arts, and reading. 
(Exhibits 277, 278, part 1, pp. D -l—D-4, and part 2).

The Plaintiffs filed only two objections relating to the in- 
tervention/remediation program. Specifically, plaintiffs argued 
that the program should not be limited to grades K-4, and that it 
should not be paid for with Title I funds. (Objection 1(d), 
March 25, 1981, and Objection 1(e), March 25, 1981). From the 
exhibits and from the testimony of Ms. Nabors, it is apparent 
that remediation efforts in the system are currently directed 
toward all grades. (See Exhibit 278, part 1, at D-l). However, 
the Court’s Order was directed only to remediation in grades 
K-4, in order to maintain the delicate balance set forth in that 
Order.* 17 Moreover, inherent in the Court’s Order is the recogni­
tion that when remediation is effective in the lower grades, there 
should be less need for it in the upper grades.

Plaintiffs’ objection regarding Title I funds is also not well 
taken. Ms. Lucille Nabors testified that the Defendants are 
cognizant of the Title I Regulations and statutes, which at this 
time appear to preclude the use of Title I funds for educational

intervention-remediation program, and that the staff be directed to 
follow that policy and consider the specific guidelines set down by the 
Court in its opinion as budgets for the ensuing years are prepared and 
submitted to the Board.”

17 The neighborhood character of the K-4 schools will permit in­
creased parental involvement in every school, a concept espoused by 
Dr. Hugh Scott and capitalized upon by the Board’s proposal to pro­
vide parental training to increase support for target children. (Exhibit 
278, part 1, at D-3—D-4).



components of court-ordered desegregation plans. The plans 
proposed by the Board for implementation under the Court’s 
Order will be funded fully with state and local funds. In fact, 
those students the Plaintiffs would wish to receive remedial ser­
vices will be receiving twice the amount of such services, from 
the local level and from the federal level.

The Court’s Order of May 20, 1980, directed the Board to 
plan intercultural experiences for students in those schools 
which, because of the Court’s cost-benefit analysis, would at­
tend predominately one race schools. Based upon the testimony 
of Ms. Nabors, and the voluminous exhibits presented, the 
Court is satisfied that the Board has met this criteria, and has 
used its initiative to develop intensive programs which the pro­
fessional staff deem valid and educationally sound.

Dr. Hugh Scott, the Plaintiffs’ expert witness, testified at 
length about the trend toward and the need for multicultural 
education directed toward the recognition of cultural diversity 
in a pluralistic society. The multicultural committees have 
developed a detailed program along the lines of Dr. Scott’s sug­
gestion. This program will eventually be offered in every school, 
grades K-12. (Exhibit 278, part 1, A-4). A curriculum guide for 
grades K-6 has already been developed and will be ready for use 
in those grades in 1981-1982 (Exhibit 276). Ms. Nabors testified 
that a similar guide for grades 7-12 is to be developed in the near 
future.

An intercultural exchange program is also planned pursuant 
to the Court’s directive for those K-4 schools that will be 
predominately one race. These programs must, of necessity, be 
tailored to the individual schools and staffs involved, and these 
programs will be operational in the predominately one race 
schools under the interim plan in 1981-82.

The Plaintiffs filed only one objection with regard to the 
multicultural-intercultural exchange program proposed by the 
Board, which objection was not specific in nature. Objection

— SA-142 —



— SA-143 —

1(a) (March 25, 1981) indicates that the Plaintiffs accept the 
goals and objectives of the multicultural program, but insist 
that sufficient detail was not supplied. The testimony of Ms. 
Nabors and exhibits previously mentioned satisfy the Court that 
the validity of the planned programs has been shown and that 
the programs are in full compliance with the Court’s directives 
of May 20, 1980.

The magnet school proposal presented by the Board did not 
satisfy the Court’s desire to have at least one such alternative 
program18 implemented immediately. The delay was not based 
upon lack of curriculum development, since plans for an 
academic magnet school were well under way at the time this 
Court approved the Board’s timetable for implementation of 
the plan on July 15, 1980. The Board felt the program should be 
delayed until a suitable building for such a 7-12 grade school 
could become available. This problem has been obviated by the 
adoption of the modified interim pupil assignment plan, 
discussed infra. The Court questioned Ms. Nabors at length 
about the time necessary to implement the planned academic 
magnet school for 1981-1982 in the event a suitable building 
could be found. While Ms. Nabors and her committees 
understandable felt that more time than is available between 
now and the beginning of school in the fall of 1981 would be 
preferable for the selection of staff and students, she did testify 
that the task could be completed. Based on that representation, 
and the desire of this Court to minimize the delay in implemen­
ting as much of this plan as possible, the Court now orders that 
the proposed academic magnet school, to be located at the pre­
sent West End Junior High School, be implemented for the 
coming school year, beginning with grades 7 and 8, and adding 
a grade each year thereafter.

18 The Board’s plan proposed to continue the operation of Hume 
Fogg High School as an open zoned school with grades 9-12 for the 
school year 1981-1982. This proposal includes the Board’s intention to 
re-evaluate the continuation of Hume Fogg on an annual basis. This 
proposal is approved.



SA-144 —

The Plaintiffs only objection to the magnet school proposal 
outlined by the Board is directed toward the student selection 
procedure to be employed for such school. While the Board did 
not intend to use its selection procedure for the coming year, the 
Court is impressed by the mechanism developed for such selec­
tion (Exhibit 274), which includes achievement test scores, 
teacher ratings, and school records. These criteria will insure 
sufficient flexibility to provide equal access to all races, contrary 
to the Plaintiffs’ objection. This objection is accordingly over­
ruled.

The Black History or Afro-American Studies Program 
ordered by the Court in its Order of May 20, 1980, is presently 
in operation, having been offered in the high schools for the 
first time in the fall of 1980. The Court finds the curriculum 
guide for this course to be most adequate. (Exhibit 275). This 
course, along with continuing efforts to include such studies in 
the regular curriculum and to screen curriculum and textbooks 
for sensitivity to the heritage of black Americans, and the 
muliticultural program for all grades discussed previously, com­
plies with this Court’s directive. The Plaintiffs’ objection 
relating to the lack of specificity and to general curriculum con­
siderations is overruled. (Objection 1(c), March 25, 1981).

The educational considerations inherent in the move toward 
middle schools pursuant to the Court’s directive were addressed 
extensively by Ms. Nabors and set forth in the exhibits. (Exhibit 
278, part 1, Section E). The implementation of the middle 
school philosophy with its emphasis on bridging the gap be­
tween elementary and high school should go a long way toward 
meeting this Court’s directive to concentrate on quality educa­
tion and to increase community perceptions thereof.19

19 No objections were filed by the Plaintiffs relating to the educa­
tional component for middle schools.



— SA-145 —

The final educational component ordered by the Court con­
cerns in-service training of faculty and staff members for suc­
cessful implementation of the plan. No pertinent objection has 
been filed by the Plaintiffs to this component.20 From the 
testimony and the materials presented, this component is well 
developed, providing a continuation of the on-going “ Together 
We Can ... Together We Will” program previously lauded by 
this Court, and for new programs related to the desegregation 
order. (Exhibit 278, part 1, pages G-l-H-30). It is, therefore, ap­
proved as complying with the Court’s Order of May 20, 1980.

In view of the foregoing discussion and findings, the educa­
tional component package as presented by the Board, with the 
modification regarding the academic magnet school beginning 
with grades 7-8 in 1981-1982, is approved as complying with this 
Court’s Order of May 20, 1980.

II. PUPIL ASSIGNMENT COMPONENT

Two proposals were made by the Board for pupil assignment, 
the long range plan for implementation in 1984, and the interim 
plan for implementation in 1981-1982. As detailed, infra, the 
long range plan is approved as in conformity with the Court’s 
Order of May 20, 1981; the interim plan is modified to include 
an expanded zone of implementation for 1981-1982.

20 The Plaintiffs’ only objection to the administrative and staff 
development portion of the plan relates not to the in-service educa­
tional component, but to affirmative action plans for staff and ad­
ministrative positions. While this was part of the Court s Order of 
May 20, 1980, the Court has reserved the personnel issue for a later 
date, and accordingly, no proof has been presented by the Board 
regarding its affirmative action plans.



— SA-146

A. The Long Range Plan.

The Board’s long range proposal for elementary schools, ex­
hibits 268 and 271, fully complies with the Court’s directive to 
establish a system of K-4 or K-5 elementary schools of a 
neighborhood character, all the while maximizing opportunities 
for integration in a neighborhood setting. Of the 75 K-4 elemen­
tary schools proposed, Mr. Osborne estimates that approx­
imately 31 of these schools will be walk-in schools requiring no 
transportation, as compared to only five at the present time. 
This should permit increased parental participation deemed so 
important by this Court and by the Plaintiffs’ own expert 
witness, Dr. Hugh Scott.

In drawing the school zone lines for elementary schools, Mr. 
Osborne and his bi-racial committee committed themselves to 
maximizing integration as much as possible without the use of 
non-contiguous zones, and the results were surprising. No K-4 
school is projected to be 100% black, and only five schools in 
the outer reaches of the County are projected to be 100% 
white.21 It should be noted here that while the Plaintiffs’ plan 
was stricken from the record, it contained a proposal to leave 
some of these distant outlying schools untouched by the Plain­
tiffs’ own desegregation plan. (See, Plaintiffs’ Exhibit Number 
284 for Identification).

Approximately 20 of the elementary schools are projected to 
be within the 15% black or white ratio established by the Court 
for middle schools. Those schools which fall outside this percen­
tage will benefit from the intercultural exchange program 
discussed above.

21 Gateway, Hickman, Joelton, Sylvan Park, and Union Hill. (Ex­
hibit 268).



— SA-147 —

The Court is satisfied that the elementary school plan meets 
the Court’s Order of May 20, 1980, and all the Plaintiffs’ objec­
tions relating to it have no bearing on the question of com­
pliance with the Court’s mandate.22

The middle school plan approved by the Board contemplates 
the creation of 24 middle schools serving grades 5-8 in 1984. 
(Exhibits 268 and 269). According to the testimony of Mr. 
Osborne, the Board began its consideration of the middle 
school plan by locating suitable buildings for the unique middle 
school program, as outlined by the Middle School Educational 
Component Committee.

After the schools were selected, zones were constructed to 
comply with the Court’s mandate to achieve at minimum a 15% 
representation of either race in the middle schools. Under the 
Board’s proposal, four middle schools are not projected to fall 
within this 15% black/white range in 1981: Donelson (14.8% 
black), Apollo (14.1% black), Antioch (14.0% black), and 
Wright (11.7% black). These schools may well fall within the 
15% range by 1984, and to require their technical compliance 
with the suggested ratio at this time would necessitate the rezon­
ing of black children from neighborhood middle schools into 
these middle schools. In drawing the middle school zones, the 
Board used non-contiguous zones only where necessary, and as 
demonstrated by Mr. Osborne, chose the closest other race 
population to constitute the non-contiguous zones wherever 
practical.

22 Plaintiffs’ Objection (3)(a) (February 6, 1981) and Objection 2 
(March 25, 1981) attack the neighborhood character of the elementary 
school proposal. Again, this constitutes an attack on the Court’s 
Order rather than an effort to achieve complance with it. Accordingly, 
these objections are stricken under Rule 12(f), Federal Rules of Civil 
Procedure, along with the Plaintiffs’ elementary school plan.



— SA-148 —

Plaintiffs only objection to the Board’s middle school pro­
posal is that the burden of transportation continues to be on the 
black children. The middle school map (Exhibit 269), and the 
testimony of Mr. Osborne, demonstrate conclusively that this is 
not the case. In many instances, white children are required to 
travel to predominately black communites to attend school. For 
example, white children in the outer reaches of the County are 
required to travel to the predominately black innercity to attend 
Cameron; white students from the southern portion of the Pearl 
zone are required to travel into the innercity to Pearl; white 
students are required to travel into Ewing Park; and white 
students are required to travel into Cumberland. Merely because 
there may be more non-contiguous zones made up of 
predominately black children does not mean that these students 
must travel longer distances or greater lengths of time than 
white children, nor does it mean that these students must 
necessarily travel out of their neighborhoods more often than 
white children. The Court finds that the locations of the middle 
schools were chosen by a neutral process, in an effort by the 
Board to accommodate the unique middle school program at 
the best possible places, thereby looking forward to the 
enhancement of quality education. The amount of transporta­
tion involved for either race is necessary to reach the 15% 
representation level deemed desirable by the Plaintiffs’ expert 
witness, Dr. Hugh Scott and approved by the Court in its Order 
of May 20, 1980.

In addition, Plaintiffs’objection regarding burden on black 
students at the middle school level constitutes not an objection, 
but an admission that the Plaintiffs’ proposed plan does not 
comply with the Court’s Order. Plaintiffs used the same middle 
schools in their proposed plan that the Board has used under its 
plan. (Exhibit 283). It is inconceivable that their objections 
regarding burden on black children can be alleviated by their 
plan because there are no additional middle schools in the black



— SA-149 —

community. When this obvious concept is coupled with the 
racial balance approach used by the Plaintiffs, which will re­
quire transportation of greater numbers of black children out of 
the black community, it is apparent that the burden on black 
students is increased in the Plaintiffs’ plan contrary to the basic 
concepts of the Court’s Order.

The Board’s high school plan (Exhibits 267 and 268) is also in 
total compliance with the Court’s directive of May 20, 1980. 
Bellevue and Joelton were closed as high schools in the school 
year 1980-81, with the high school population of these schools 
being reassigned to Hillwood and Whites Creek pursuant to the 
Court’s directive. The long range proposal for 1984 forecasts 
the closure of Antioch, DuPont, Pearl, Cohn, and Goodlett- 
sville as high schools, with their school populations being ac­
commodated by the Goodlettsville-Madison, Pearl-Cohn, 
McGavock, Glencliff and Overton zones ordered by the Court.

The only deviation from the plan contemplated by the Court 
and the Board’s new plan concerns Goodlettsville-Madison. 
Since the early 1970’s, the Board has proposed to build a new 
Goodlettsville-Madison-Trinity Hills Comprehensive High 
School at the Hunter’s Lane location. Upon reconsideration of 
this proposal following the Court’s Order, the Board determin­
ed that it would be more economically responsible to expand the 
existing Madison High School to accommodate students from 
the Goodlettsville, Madison, Trinity Hills, and DuPont areas at 
a savings in excess of $2,000,000.00. (Board Minutes, Exhibit 
286). The testimony of Mr. Osborne indicates that the locations 
make little difference to the student populations involved. If 
anything, the Madison location is slightly closer to the highest 
concentration of black students for the school population in the 
Trinity Hills area than was the Hunter’s Lane location and the 
racial makeup of the school is not affected by a change in loca­
tion.



— SA-150 —

The Ford Greene site chosen for the Pearl-Cohn Comprehen­
sive High School is also approved as a central location in the 
proposed zone, taking into account the relative concentration of 
students in that zone.

It should be noted here that while the Court did not decree the 
racial mixture in the high schools as it did in the middle schools, 
all of the Board’s proposed high schools, with the possible ex­
ception of Goodlettsville-Madison at 14.9% black, fall well 
within the 15% either race guideline established by the Court for 
middle schools. Furthermore, three of the 10 schools are pro­
jected to be majority black in 1984.23

The Plaintiffs only objections to the high school plan concern 
the Board’s failure to consider the pairing of Maplewood and 
Goodlettsville in lieu of building the Goodlettsville-Madison 
Comprehensive High School, and its failure to use Pearl as a 
high school. (Objection 3(b) (February 6, 1981), and Objection 
2(b) (March 25, 1981)). Both of these objections are without 
merit. The Maplewood objection attacks rather than follows the 
Court’s Order of May 20, 1980, and accordingly, it should not 
be considered. The soundness of the Board’s action in conver­
ting Pearl to a middle school is supported by the fact that the 
Plaintiffs’ plan also uses Pearl as a middle school, rather than a 
high school. (Exhibit 283).

In view of this discussion, the Board’s long range pupil 
assignment plan is approved in its entirety as in compliance with 
the Court’s Order of May 20, 1981.

B. The Interim Plan.

The Board’s interim plan for implementation in the fall of 
1981 proposes to implement the Court’s Order of May 20, 1980,

23 Maplewood, Pearl-Cohn, Whites Creek.



SA-151

in only one area of the county—the area encompassed by the 
Whites Creek Comprehensive High School zone (Map, Exhibit 
272, and statistical summary, Exhibit 272). Insofar as this plan 
goes, this portion of the interim plan is approved, including the 
minor deviations from the long range plan requiring the phasing 
in of certain zones over the next three years.24

In 1981, implementation of the plan in the northeastern sec­
tion of the County will involve eight elementary schools serving 
grades K-4, three middle schools serving grades 5-8, and one 
comprehensive high school.

At the time this plan was filed, the Court was concerned that 
more of the County could not benefit from the early implemen­

24 As Mr. Osborne testified, the Whites Creek zone, as shown on the 
1984 long range map, can be implemented in 1981, with a few minor 
exceptions. These exceptions relate to building capacity. Whites Creek 
can accommodate the Union Hill zone (now in Goodlettsville), the 
Brick Church zone (now in Maplewood), and the Haynes Manor area 
(now in Maplewood) in 1984, because of projected declines in enroll­
ment. However, during the interim, only one grade a year from those 
areas can be added to Whites Creek. Therefore, beginning with the 
ninth grade in 1981, adding the tenth grade in 1982, and so on, the in­
terim plan proposes to stagger the implementation of the long range 
plan in this area. The procedure will not only direct itself toward 
building capacity, it will also facilitate as little disruption of students 
as possible, since students who begin the ninth grade at Maplewood 
and Goodlettsville in 1980-1981 will be permitted to graduate from 
those schools.

The zones for the three middle schools, Joelton, Ewing Park, and 
Cumberland, will be implemented in 1981, with the exception that 
children in the Parkwood Estates area will continue to attend Ewing 
Park until 1984, when they are scheduled to attend Goodlettsville, and 
students from the Haynes area will continue to attend Meigs and 
Highland Heights until 1984, when they are scheduled to attend Ewing 
Park. These deviations are necessary because of capacity problems 
that will be alleviated in 1984 by virtue of the construction of a new 
high school to serve the Goodlettsville-Madison-Trinity Hills-DuPont 
area.



— SA-152 —

tation of the three-tiered grade structure from interven- 
tion/remediation and from the magnet school proposal until 
1984. Accordingly, on March 31, 1981, the Court directed the 
Board to present further alternatives for increased implementa­
tion of the plan on April 6, 1981.

In directing the Board to consider other alternatives for im­
plementation of the plan, the Court was not attacking the 
Board’s good faith efforts in deciding not to implement the plan 
further. As was stated by Mr. Osborne, the rationale behind the 
slow implementation was that until the two new comprehensive 
high schools were built, any rezoning of students could be made 
on a temporary basis only. To avoid temporary disruption of 
students on this basis, the Board decided to make such changes 
only where permanent assignments could be made, and this 
could only be accomplished in the Whites Creek zone. While 
understanding this rationale, this Court deems the benefits to be 
achieved by the earlier implementation of the plan to far 
outweigh the minor disruptions occasioned by a stepped-up 
timetable.

After the Court’s directive to the Board to develop an alter­
native proposal, the Board reported to the Court a proposal to 
implement the new plan insofar as possible in the southeast sec­
tor of the city in addition to the northeast sector.25 This pro­
posal would involve the rezoning of Cohn and Pearl High 
School students to Hillsboro and Hillwood for the interim 
period beginning 1981-1982, pending the completion of the 
Pearl-Cohn Comprehensive High School in 1984. This move 
would free Pearl and Cohn for immediate use as middle schools, 
pursuant to the Board’s plan, and would also free West End for 
immediate use as an academic magnet school in 1981-1982. 
Elementary school zones for this interim plan have not yet been

25 This proposal was attached to the interim plan map in the form of 
an overlay on Exhibit 272 and is described on Exhibit 279.



— SA-153 —

finalized, and some flexibility will be necessary, especially on 
the outer fringes of the southeast sector. This Court is assured 
that this planning can be completed well in advance of the ap­
proaching school year, and that the appropriate educational 
components can be in place for this sector just as they will be in 
place in the northeastern sector. Accordingly, the revised in­
terim plan is approved.

It should be noted here that to complete the plan in the re­
maining sections of the County will require the construction of 
the Goodlettsville-Madison Comprehensive High School and a 
sufficient decline in enrollments at Glencliff, McGavock, and 
Overton, thus permitting the reassigning of students from An­
tioch High School and Dupont pursuant to the Court’s direc­
tive. Accordingly, pending such events, attendance patterns in 
this section of the County should remain as they are.

ADDITIONAL MATTERS

After many days of testimony in this cause, it has become ap­
parent to this Court that the rigid guidelines placed upon the 
school system by this Court’s Order in 1971 have become ob­
solete and no longer necessary. The good faith efforts of this 
Board to achieve desegregation have been amply demonstrated 
by all the plans submitted to this Court. This Court does not 
deem it necessary to impose further rigid guidelines upon the 
Board in terms of minor alterations in zone lines where deemed 
advisable to achieve better integration or to conform to building 
capacities. In addition, in view of the new plan now approved, 
the restriction placed upon building in the outlying areas by the 
1971 Order no longer has validity, since the new plan addresses 
desegregation and quality education on a county-wide basis. 
Accordingly, the ban on such construction, where deemed 
necessary by the Board to improve facilities, accommodate 
students, or enhance integration, should be lifted.



— SA-154 —

An appropriate Order will enter. This is a final order from 
which an appeal as of right is provided by Rules 3 and 4, Fed. 
Rules App.Proc. Because efforts at implementation for the 
school year 1981-82 are immediately imperative, this Court will 
not grant a stay of this order pending any appeal.



— SA-155 —

No. 81-5370
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Robert W. Kelley, et al.; Henry C. Maxwell, Jr., et al, 
Plaintiffs-Appellants, 

vs.

Metropolitan County Board of Education of Nashville 
and Davidson County, Tennessee,

Defendants-Appellees.

ORDER

Before: EDWARDS, Chief Circuit Judge, JONES, Circuit 
Judge, and CELEBREZZE, Senior Circuit Judge.

On receipt and consideration of a motion for stay filed by 
Robert W. Kelley, et al., plaintiffs-appellants; and

On consideration of said motion under terms of Rule 8 of the 
Rules of Appellate Procedure and pertinent case law, Virginia 
Petroleum Job. A ss ’n v. Federal Power C om ’n, 259 F.2d 921, 
925 (D.C. Cir. 1958); see also North Avondale Neighborhood 
A ss’n v. Cincinnati Metropolitan Housing Authority, 464 F.2d 
486, 488 (6th Cir. 1972); and

Further noting that generally four factors are required for the 
issuance of a stay, as follows:

1. Has the petitioner made a strong showing that it is 
likely to prevail on the merits of its appeal?

2. Has the petitioner shown that without such relief, it 
will be irreparably injured?

SUPPLEMENTAL APPENDIX E



— SA-156 —

3. Would the issuance of a stay substantially harm other 
parties interested in the proceedings?

4. Where lies the public interest?

Observing from this record that affirmative answers 
favorable to plaintiffs’ motion must be given in relation to the 
first two of these questions, while a negative answer appears ap­
propriate to the third;

And concluding as to the fourth question that where (as here) 
after many years a final school desegregation order has been 
entered in the District Court, appealed to this court and affirmed, 
and then appellants’ petition for certiorari has been denied in 
the Supreme Court, it is in the public interest for a proposed 
departure from said order to be reviewed by the Court of Ap­
peals prior to, rather than after, the institution of the change 
sought;

Now, therefore, plaintiffs’ motion for stay is hereby granted, 
the mandate is ordered issued forthwith, and the appeal is ex­
pedited for hearing in the October term of this court.

Entered by order of the Court

/ s /  JOHN P. HEHMAN 
Clerk



— SA-157

Supreme Court of the United States 
Washginton, D. C. 20543

SUPPLEMENTAL APPENDIX F

Chambers of
Justice John Paul Stevens

August 20, 1981

IN CHAMBERS MEMORANDUM OF JUSTICE STEVENS

Re: No. A-144 Metropolitan County Board of Education, et 
. al., v. Kelley, et al.

Pursuant to the rules of this Court, the motion of the 
Metropolitan Nashville Board of Education to vacate the stay 
entered by the United States Court of Appeals for the Sixth Cir­
cuit on August 19, 1981, has been referred to me for decision. 
The movants have persuaded me that I have jurisdiction to 
vacate the stay entered by the Court of Appeals, but for the 
following reasons I have decided not to do so.

The district court order of April 17, 1981, that has been 
stayed by the Court of Appeals substantially modifies the 
desegregation order that had previously been in effect in David­
son County, Tennessee. The plaintiffs filed an appeal from that 
order and, after hearing oral argument in connection with the 
plaintiffs’ application for a stay, the Court of Appeals expressed 
the opinion that the changes in the prior order are of sufficient 
significance that they should be reviewed by an appellate court 
before they are implemented. I share that opinion.

Although, as the Board of Education has pointed out, the 
stay will cause significant expense and inconvenience to the 
community, because the interim order will affect 21 elementary



SA-158 —

schools, six middle schools and three high schools immediately, 
and also will have an impact on the permanent plan scheduled 
to go into effect in 1984, it seems to me that even greater in­
convenience might result if the plan were to go into effect forth­
with and be modified or set aside at a later date when the Court 
of Appeals reviews its merits. The Court of Appeals has greater 
familiarity with the case than it is possible for me to have in the 
brief time I have had to examine the papers that have been filed 
with me; for the purpose of my action I accept the correctness 
of that court’s determination that there is a likelihood that 
plaintiffs will prevail on their appeal. If that be so, it seems to 
me that in the long run there will be less inconvenience and 
hardship to all parties if appellate review is had prior to the im­
plementation of the interim order of the district court. Accor­
dingly, the motion of the Board of Education to vacate the stay 
is denied.



— SA-159 —

MEMORANDUM OPINION 

(Filed June 28, 1971)

History of Litigation

The original action seeking school desegregation of the 
Nashville school system was filed in September, 1955.' Finally, 
on July 16, 1970, after the gradual evolvement of the present 
status of the law, this United States District Court, speaking 
through the Honorable William E. Miller, held that the local 
school board had not met its affirmative duty to abolish the 
dual school system in three categories: pupil integration, faculty 
integration, and site selection for school construction. Kelley v. 
Metropolitan County Board o f  Education, 317 F. Supp. 980 
(M.D. Tenn. 1970). The approval and implementation of a plan 
to correct the adjudicated wrongs was delayed until the Sixth 
Circuit Court of Appeals ordered immediate hearings for that 
purpose.

Background Data

The Metropolitan school system consists of three divisions. 
The elementary schools accommodate students from 
kindergarten through the sixth grade. Junior high accom­
modates grades seven through nine. Senior high consists of 
grades nine through twelve.

In the 1970-71 school year a total of 94,170 students attended 
the Metropolitan schools. Of this number, 33,485 were 
transported by the Metropolitan school system. Of the total 
transported, less than 4,000 were black and approximately
30,000 were white. 1

SUPPLEMENTAL APPENDIX G

1 Reference to the separate and later consolidated actions regarding 
the City of Nashville and Davidson County systems is omitted for 
brevity.



— SA-160 —

One hundred forty-one schools were operated in the 
Metropolitan school system during the 1970-71 school year. The 
racial breakdown of the students was:

black 
white 
other

The percentage breakdown was:

black ..................................... 24.63%
white ..................................... 75.12%
other ..........................  25%

Plans Submitted for Court Approval 

School Board Plan

The Board of Education submitted a plan for pupil integra­
tion in August, 1970. Included in this plan was a policy state­
ment that the school board “ accepts as an ideal student racial 
ratio of an integrated school as one which is 15% to 35% 
black.” 2

The August, 1970 plan made 49 minor geographic zone 
changes, and provided for the transportation of an additional 
1162 pupils.3 The result of the plan was to leave the elementary 
schools significantly unchanged. Six of the 38 high schools and 
junior high schools would remain at least 50 per cent black. 
Fifty-seven per cent of the black high school and junior high

23,533
71,754

237

2 The testimony of expert witnesses indicates that the accepted and 
satisfactory norm is a range from 10 per cent below to 10 per cent 
above the percentage of black students enrolled in a school system.

3 McGavock, a recently erected high school, was not included in the 
August, 1970 plan.



— SA-161 —

school students would attend these six schools. The racial com­
position of two schools would be at least 95 per cent black and 
four other schools would be at least 90 per cent black. This 
would result in 47 per cent of the black students attending 
schools where the composition would be above 90 per cent 
black. Eight schools, accommodating 20 per cent of the black 
students, would operate with 15-35 per cent black students. Fif­
teen schools would operate with 95 per cent or above white 
students.

On the last day of the hearings, which were held on several 
days over a three-month period, the school board submitted an 
amendment providing for the selection of students for 
McGavock School by paring.

Plaintiffs’ Plan

Elementary Schools. Plaintiffs, through clustering and pair­
ing, using both contiguous and non-contiguous zoning, proposed 
to effect in most elementary schools, through two alternate 
plans, a mathematical ratio in the range of 15-35 per cent black. 
Plan I would require the transportation of 25,500 elementary 
students, and Plan II would require the transportation of 27,000 
pupils. Eighty-two of 100 schools would fall within the ideal 
ratio under Plan I, while under Plan II, 91 schools would attain 
the indicated ratio.

Secondary Schools. A model was submitted which included 
sectoring, clustering and pairing to attempt to attain 15-35 per 
cent black in the junior and senior high schools. In both the 
elementary and secondary school plans there is not a satisfac­
tory description of grade organization, structuring of the 
schools, the assigment of the pupils, or definite zone descrip­
tion. The plans propose the mathematical result indicated, but 
delegate to the school board the actual assignment of pupils and 
implementation of the plan.



— SA-162 —

HEW Plan A as Amended4

At the request of the Court, the Department of Health, 
Education and Welfare submitted a plan with two alternates. 
The principal plan was designated as Plan A. This plan incor­
porates geographic zone changes, clustering, pairing (both con­
tiguous and non-contiguous), and grade restructuring.

Elementary Schools. Five schools would be closed.5 Seventy- 
four schools would have a racial percentage of 16-41 per cent 
black. Twenty-two schools which are located in the far reaches 
of the county would have a racial percentage of 0-11 per cent 
black. Three of those 22 would have no blacks. Under Plan A 
there would be no elementary school in the system with a black 
student enrollment of more than 41 per cent. Fifty-nine per cent 
of the black students in the system would attend schools with a 
black student enrollment of between 35 and 41 per cent. Three 
per cent of the black students in the system would attend 
schools with a black student enrollment of less than 15 per cent. 
Twenty-four per cent of the total number of white students in 
the system would attend schools in which black enrollment is 
less than 5 per cent. One per cent of the total black student 
enrollment in 16 schools, or 125 students, would be enrolled in 
schools with less than 5 per cent black student enrollment.

Under this plan, approximately 22,000 elementary school 
students would be eligible for school-provided transportation. 
This is approximately 10,500 more than the Board transported

4 Adjustments were made to shorten transportation routes, to in­
corporate the school board plan for McGavock School, to adjust the 
student makeup of Pearl High School.

5 Three of the five schools to be closed are rated unsatisfactory by 
the consultants hired by the school board. The other two are listed as 
inadequate.



— SA-163

in 1970-71, and 9,700 more than those who would be 
transported under the Board’s proposed plan. Three thousand 
five hundred fewer students would be transported under HEW 
Plan A than under the plaintiffs’ Plan I, and some 5,000 fewer 
than would be transported under plaintiffs’ Plan II.

Junior High Schools. This plan incorporates the school board 
amendment to the August, 1970 plan. Eighteen of 25 schools 
would have a racial composition of 20-40 per cent black. Seven 
schools would have a composition ranging from 0-5 per cent 
black. These seven schools are in the outer reaches of the county. 
Some former senior high schools would be changed to junior 
high schools. Two high schools would be closed.

Senior High Schools. This plan incorporates the school board 
amendment to the August, 1970 plan. Central High School 
would be closed. MaGavock High School is to be opened. Of 
the 18 schools, 11 would have 18-44 per cent black. One would 
have an 11 per cent enrollment of blacks and six would be vir­
tually all white. These all-white schools are located in the outer 
reaches of the county.

An analysis of the HEW amended plan with regard to the 
secondary schools reflects that:

(1) no school would operate with more than 44 per cent black;

(2) 29 of the 43 schools would operate within the range of 
15-44 per cent black, with one additional school having 11 per 
cent black;

(3) 13 schools, primarily in the outer reaches of the county, 
would have 95 per cent or more white;

(4) 67 per cent of the schools, housing 90 per cent of the black 
students, would operate in the 15-44 per cent black range; 5

(5) transportation would be required for 26,673 junior and 
senior high school students; and



— SA-164 —

(6) including the transportation necessary for McGavock 
School, 2,838 more secondary pupils would require transporta­
tion than were transported in the 1970-71 school year.

Objective, Test, and Methods

Objective

“ The objective today remains to eliminate from public 
schools all vestiges of state-imposed segregation.” Swann 
v. Charlotte-Mecklenburg Board o f  Education, ... U.S. 
..., 28 L.Ed.2d 554, 566 (April 20, 1971).

The Supreme Court has stated that “ [t]he objective is to 
dismantle the dual school system,” Swann, supra, at 573, . .
to eliminate invidious racial distinctions,” Swann, supra, at 
568, and “ . . . to  achieve the greatest possible degree of actual 
desegregation, taking into account the practicalities of the situa­
tion.” Davis v. Board o f  School Commissioners, ... U .S.......28
L.Ed.2d 577, 581 (April 20, 1971).

Test

A plan “ that promises realistically to work, and promises 
realistically to work now” is required. Davis, supra, at 581, 
quoting Green v. County School Board, 391 U.S. 430 (1968). A 
plan “ is to be judged by its effectiveness.” Swann, supra, at 
572; Davis, supra, at 581. A plan “ is not acceptable simply 
because it appears to be neutral.” Swann, supra, at 573.

Methods to Accomplish Objective

The following methods have been acknowledged by the 
United States Supreme Court: (1) restructuring of attendance 
zones, both contiguous and non-contiguous; (2) restructuring of 
schools; (3) transportation; (4) sectoring; (5) non-discriminatory 
assignment of pupils; (6) majority to minority transfer; and (7) 
clustering, grouping and pairing. Swann, supra; Davis, supra.



SA-165

Discussion of Plans Submitted

The pupil integration plan submitted by the school board, 
viewed in the most favorable light, constitutes mere tinkering 
with attendance zones, and represents only a token effort. It 
clearly falls short of meeting the objectives and tests set out in 
the decisions of the United States Supreme Court. Swann v. 
Charlotte-Mecklenburg Board o f  Education, supra; Davis v. 
Board o f  School Commissioners, supra; Green v. County 
School Board, 391 U.S. 430 (1968). In effect, the defendant has 
made no effort to meet its affirmative duty to establish a unitary 
school system “ in which racial discrimination would be 
eliminated root and branch.” 6 Green v. County School Board, 
supra, at 437-38; quoted in McDaniel v. Barresi, ... U.S. ..., 28 
L.Ed.2d 582, 585 (April 20, 1971).

6 Based on defendants’ school statistics for 1969-70, the student 
enrollment was 95,789. The total majority to minority rezoned under 
this plan is:

Elementary
whites gained in black schools 
blacks gained in white schools

Junior High
whites gained in black schools 
blacks gained in white schools

Senior High
whites gained in black schools 
blacks gained in white schools

301
457
758 majority to minority 

transfer in 
elementary

430
400
830 majority to minority 

transfer in junior 
high

73
735
808 majority to minority 

transfer in senior 
high



— SA-166 —

Since the defendants have, in effect, failed to submit a con­
stitutionally sufficient plan, the Court must examine the other 
plans. The plaintiffs’ plans as to elementary schools are ade­
quate in one respect. Under Plan I, 82 out of 100 schools would 
be within the indicated range of 15-35 per cent black, which was 
set by the school board. Plan II would satisfy this standard in 91 
out of 100 schools. This plan, however, has two features which 
are objectionable to the Court. The first is that actual assign­
ment of students, i.e., the locations from which they come, is 
left to the school board. The historical reluctance by the school 
board to solve this problem instills a lack of confidence in their 
implementation of this aspect without close supervision. The 
second objection is that some schools in the outer reaches of the 
county are included. The Court finds that costs and other prob­
lems incident to transportation make this feature of plaintiffs’ 
plan impractical and not feasible.

Each and every school is not required to be integrated. The 
test is a unitary school system. Swann, supra. The practicality 
and feasibility of a plan is a material consideration. Swann, 
supra.

The cost of the transportation of students and the un­
necessary disruption of the students are proper considerations. 
The Court finds that distance and transportation difficulties 
make the integration of these schools highly impractical.

Plaintiffs’ plan for the desegregation of secondary schools, as 
in their elementary plan, was a model using sectoring, zoning 
(contiguous and non-contiguous), and pairing to accomplish the 
indicated racial balance. In neither the elementary plan nor the 
secondary model is there a description of grade organization, 
structuring of the schools, the assignment of pupils, or proper 
description of zoning. For the reasons set forth as to the elemen­
tary school programs, the secondary school plan of the plain­
tiffs is rejected.



— SA-167

The plans of the plaintiffs and defendants being rejected for 
the reasons stated, the HEW plan is the only realistic plan re­
maining before the Court. As a result of the evidence produced 
at the hearing, the HEW plan was amended to effect the follow­
ing changes:

(1) adjustment of the black percentage at North High School 
from 65 per cent black to 44 per cent black, and the reduction at 
Pearl High School to 33 per cent black, with corresponding ad­
justments in Stratford, Maplewood, and other schools;

(2) shortening the time of transportation of certain pupils; 
and

(3) incorporation of the McGavock High School phase of the 
defendants’ amended plan.

On the last day of the hearings, the defendants presented an 
amendment to its August, 1970 plan. This amendment provided 
that McGavock would be a comprehensive high school serving 
an area where several junior high schools are located. Although 
this amendment applied only to a small sector of the secondary 
school system, it reflected the beginning of an awareness by the 
defendants of their affirmative constitutional responsibility. 
The defendants indicate a desire to make similar proposals in 
the future, which desire the Court wishes to encourage. If the 
Board of Education had genuinely wished to establish a unitary 
school system, it had available to it the superior resources and 
assistance to do so.

The realistic and effective approach of the defendants to the 
McGavock School area was incorporated as an amendment to 
the HEW plan, despite the fact that it requires more transporta­
tion, over longer distances, than was required by the original 
HEW plan. The Court feels that where administrative goals can 
be satisfied without hampering the constitutional objectives to 
be accomplished, such goals should control.



SA-168 —

Action of the Court

The Court hereby adopts the HEW Plan A as to elementary 
schools. This plan utilizes all of the methods previously 
enumerated. The map showing the georgraphic zones is on file 
with the clerk. This map also reflects the zoning, pairing and 
clustering to be employed. The charts appearing at pages 34 
through 41 of the HEW plan, as filed with the clerk, are 
adopted as a part of said plan and will be followed in the im­
plementation thereof.

Simultaneously with this Memorandum Opinion, the Court 
has filed maps showing the geographic zones of the junior and 
senior high schools. Likewise, charts are filed titled Table 1, 
Senior High Schools, and Table 2, Junior High Schools. These 
charts will be followed in the implementation of the plan.

In the implementation of the plans, the transparent maps can 
be placed as overlays on the student locator map. Thus the 
georgraphic boundaries of the zones become clear. In effect, the 
Court is providing the defendant school board a map overlay 
for each of the grade divisions, namely the elementary schools, 
the junior high schools, and the senior high schools. These 
overlays indicate grade and school groupings, where such are 
made, and approximate areas for attendance. Accompanying 
tables show the approximate numbers of pupils involved. The 
responsibility for determining the precise boundary lines is placed 
upon the defendant Board of Education. A written description 
of such boundaries, together with tables showing approximate 
numbers of pupils by race in each school, shall be filed with this 
Court by August 1, 1971. The defendant Board of Education 
may make minor alterations in boundaries provided such altera­
tions do not lessen the degree of desegregation in the plan 
ordered by the Court.

The Court is aware that the cost of implementing any plan is a 
major concern. Much proof was introduced as to the financial



— SA-169 —

impact of any plan which requires transportation. Since the 
defendants have consistently transported large numbers of 
students to promote segregation, some adjustment must be 
made to reverse this unconstitutional practice. Practical solu­
tions are available, such as the multiple use of buses, staggered 
hours for school opening, and staggered hours for individual 
grades.

“ We do not read Swann and Davis as requiring the 
District Court to order the Board to provide extensive 
transportation of pupils to schools all over the city, 
regardless of distances involved, in order to establish a fixed 
ratio in each school.” Northcross v. Board o f  Education, 

.Civil Nos. 20,533, 20,539 (6th Cir., filed June 7, 1971).

This order does not contemplate cross-transportation of 
pupils within a grade level in implementation of this order. If 
such crossing occurs, the Board may make minor adjustments in 
zones or may make application to the Court for reconsideration 
of the zones. It is further contemplated that the transportation 
routes in the plan implemented by this order permit uninter­
rupted transportation of children from home pickup points to 
and from the school attended. This is not to preclude the Board 
in the exercise of administrative discretion and consideration of 
transportation economics, from establishing transfer routing 
and collection points.

The Court is aware that some “ all-white” schools remain in 
the outlying areas of the county. However, based upon practical 
considerations, common sense and judgment dictate that they 
should not be integrated. Integration of those particular schools 
would not be feasible, both from a distance and a cost stand­
point. However, to prevent the use of these schools as an avenue 
of resegregation, certain restrictions on their use will be 
hereinafter set forth.



Special Provisions

Majority to Minority Transfer Policy

After this plan is implemented, there will be no schools which 
have a majority of black students. Because of population 
changes or other circumstances, however, this situation might 
occur in the future. Therefore, the following policy shall be a 
part of the plan to be implemented.

Whenever there shall exist schools containing a majority of 
black students, this school board shall permit a student (black 
or white) attending a school in which race is the majority to 
choose to attend the closest school where his race is a minority. 
The Board of Education will provide all such transferring 
students free transportation and will make space available in the 
school to which he desires to move. The Board will notify all 
students of the availability of such transfers.

Faculty Integration

On July 16, 1970, Judge Miller in this case stated:

“ It is well recognized that faculty and staff integration is 
‘an important aspect of the basic task of achieving a public 
school system wholly free from racial discrimination.’ 
United States v. Montgomery County Board of Education, 
395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969); see 
Bradley v. School Board of City of Richmond, 382 U.S. 
103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965). In order to im­
plement this mandate, the Court concludes that in the in­
stant case faculties must be fully integrated so that the 
ratio of black and white faculty members of each school 
shall be approximately the same as the ratio of black to 
white teachers in the system as a whole. Robinson v. 
Shelby County Board of Education, supra; Nesbit v. 
Statesville City Board of Education, 418 F.2d 1040 (4th

— SA-170 —



— SA-171

Cir. 1969); Stanley v. Darlington County School District 
and Whittenberg v. Greenville County School District, 424 
F.2d 195 (4th Cir. 1970); Pate v. Dade County School 
Board, 307 F. Supp. 1288 (S.D. Fla. 1969); contra, Deal v. 
Cincinnati Board of Education, supra. But see Goss v. 
Board of Education of the City of Knoxville, 406 F.2d 
1183 (6th Cir. 1969).” Kelley v. Metropolitan County 
Board o f  Education, supra, at 991.

j jc  %  j Jc sjc sfc j(e 9|e

“ It is the conclusion of the Court that the present policy 
of faculty desegregation applied by defendant is constitu­
tionally inadequate. That policy must be altered to comply 
with the standards set forth above. A similar policy also 
must be applied to all other personnel employed by defen­
dant school board.” Kelley v. Metropolitan County Board 
o f  Education, supra, at 992.

The court-required ratio for teachers in each school was fixed 
at that time to be 80 per cent white to 20 per cent black. Approx­
imately 94 schools are not currently operating at this ratio. In 
most schools, this ratio could be accomplished by moving one 
or two teachers. Upon the implementation of the plan presently 
adopted by the Court, there should be no difficulty in meeting 
the court order of 1970. Therefore, the defendants are required 
to effect said ratios for the next school year beginning on or 
about September 1, 1971.

The school board shall immediately announce and implement 
the following policies: 1

1. The principals, teachers, teacher-aides, and other 
staff who work directly with children at a school shall be so 
assigned that in no case will the racial composition of a 
staff indicate that a school is intended for black students or 
white students. The school board shall, to the extent



— SA-172 —

necessary to carry out this desegregation plan, direct 
members of its staff to accept new assignments as a condi­
tion to continued employment.

2. Staff members who work directly with children, and 
professional staff who work on the administrative level will 
be hired, assigned, promoted, paid, demoted, dismissed, 
and otherwise treated without regard to race, color, or na­
tional origin.

3. If there is to be a reduction in the number of prin­
cipals, teachers, teacher-aides, or other professional staff 
employed by the school system which will result in a 
dismissal or demotion of any such staff members, the staff 
member to be dismissed or demoted must be selected on 
the basis of objective and reasonable non-discriminatory 
standards from among all the staff of the school system. In 
addition, if there is any such dismissal or demotion, no 
staff vacancy may be filled through recruitment of a per­
son of a race, color, or national origin different from that 
of the individual dismissed or demoted, until each displaced 
staff member who is qualified has had an opportunity to 
fill the vacancy and has failed to accept an offer to do so.

Prior to such a reduction, the school board will develop 
or require the development of nonracial objective criteria 
to be used in selecting the staff member who is to be 
dismissed or demoted. These criteria shall be available for 
public inspection and shall be retained by the school 
board. The school board also shall record and preserve the 
evaluation of staff members under the criteria. Such 
evaluation shall be made available upon request to the 
dismissed or demoted employee.

“ Demotion” as used above includes any reassignment 
(1) under which the staff member receives less pay or has 
less responsibility than under the assignment he held



— SA-173

previously, (2) which requires a lesser degree of skill than 
did the assignment he held previously, or (3) under which 
the staff member is asked to teach a subject or grade other 
than one for which he is certified or for which he has had 
substantial experience within a reasonably current period. 
In general, depending upon the subject matter involved, 
five years is such a reasonable period.

Construction, Renovation and Location of Schools

On July 16, 1970, the United States District Court stated:

“ The constitutional requirement of desegregation also 
finds application in the area of construction, renovation, 

* and location of schools. School boards are required con­
sciously to plan school construction and site location so as 
to prevent the reinforcement or recurrence of a dual educa­
tional system. See, e.g., Felder v. Harnett County Board 
of Education, 409 F.2d 1070 (4th Cir. 1969); Swann v. 
Charlotte-Mecklenburg Board of Education, 306 F. Supp. 
1291, 1299 (W.D. N.C. 1969); Pate v. Dade County School 
Board, 307 F. Supp. 1288 (S.D. Fla. 1969). Courts may 
properly restrain construction and other changes in the 
location or capacity of school properties until a showing is 
made that such changes will promote rather than frustrate 
the establishment of a unitary school system. This Court in 
the past has stated that school boards may be enjoined 
from planning, locating or constructing new schools or ad­
ditions to existing schools in such manner as to conform to 
racial residential patterns or to encourage or support the 
growth of racial segregation in residential patterns. Such 
operations, rather, are to be conducted ‘in such manner as 
to affirmatively promote and provide for both the present 
and future an equitable distribution of racial elements in 
the population of each School System.’ Sloan v. Tenth 
School District of Wilson County, Civ. No. 3107 (M.D. 
Tenn., Oct. 16, 1969).



— SA-174 —

“ Looking to the facts of the instant case, it becomes ap­
parent that defendant’s decisions on the site selection and 
construction of its newest schools were not designed to 
promote desegregation. Since 1963, defendant has built 
four new elementary schools (Dodson, Granberry, Lake 
View, and Paragon Mills), eight new junior high schools 
(Apollo, Bass, Ewing Park, McMurray, John T, Moore, 
Neely’s Bend, Rose Park, and Wright) and one new high 
school (Dupont). Of these 13 schools, Rose Park, with an 
enrollment of 527 black students and 11 white students, is 
virtually all-Negro. The remaining twelve schools, 
however, are, on the average, 97% white, with none hav­
ing a black enrollment as high as 10%. Three elementary 
schools (Cora Howe, Fall-Hamilton, and H. G. Hill) and 
one high school (McGavock) are currently under construc­
tion. Enrollment estimates indicate that all of these schools 
will be predominately white.

“ Seven elementary schools, two high schools, and one 
school for the physically handicapped are currently in the 
planning stage. The two high schools are being planned for 
predominantly black residential areas, thereby assuring 
predominantly black student bodies. Five of the seven 
elementary schools are to be constructed in virtually all- 
white residential areas, while the remaining two are pro­
jected for location in all-black or predominantly black 
residential areas. Thus, from the foregoing, it is apparent 
to the Court that defendant must consider making substan­
tial alterations in its school construction policies in order 
to comply with constitutional requirements.

“ The Court is of the opinion that the following course 
of action must be taken by defendant. First, those new 
schools on which construction work was actually in pro-



SA-175 —

gress as of November 6, 1969,13 may be completed. 
Though this action may not produce an ideal result in light 
of the goal of integration, it will prevent unnecessary 
economic waste. Also, since, these new schools will be sub­
ject to the same zoning policies prescribed above, their 
segregative influences should be lessened. Second, in in­
stances where actual construction had not begun as of 
November 6, 1969, defendant must revise its plans where 
necessary in relation to these proposed schools so as to find 
a location that will maximize student integration. Finally, 
in the future all construction plans as well as plans for 
closure of old schools must be governed by the principles 
stated herein. The purpose of the Court in making such a 

' requirement is to insure that such plans will serve the pur­
pose of establishing a unitary school system. See Sloan v. 
Tenth School District of Wilson County, supra.” (Foot­
note omitted.) Kelley, supra, at 992-93.

New Construction. The Board has proposed for approval the 
erection of two comprehensive senior high schools, one in the 
Joelton school area, and the other in the Goodlettsville area.

In connection with future planning, the Board employed a 
team of consultants to evaluate the existing school structures 
and to project the location of new structures. Prior to the sub­
mission of these recommendations, the Court requested, and 
two administrators of the Board located on a map, the ideal 
locations for comprehensive schools. When the team of con­
sultants later made its report, their projections generally agreed 
with those of the school administrators. They found that new 
comprehensive schools should be located in the general area of

13 This is the date of the Temporary Restraining Order issued by 
this Court to enjoin defendant from further construction, expansion, 
or closure of schools pending the outcome of this suit.”



— SA-176 —

the proposed inner-city expressway loop known generally as 
“ Briley Parkway.” The reason for this agreement is obvious 
when the pupil locator map is examined. Briley Parkway is 
generally the divider between the inner-city pupils and the outer- 
county pupils. It is roughly the half-way division. By the 
establishment of schools in this area, the integration of schools 
would be effected naturally and thereby minimize transporta­
tion.

Therefore, the Court finds that the erection of a comprehen­
sive school in the Joelton area, with geographic zones drawn in 
accordance with the testimony in court, will maximize student 
integration. Upon submission of proper zoning and pupil 
assignment, this construction will be approved.

The proposed Goodlettsville school, a comprehensive high 
school, is located in an all-white community and is not located 
near the dividing line between inner-city population and outer- 
county population. By referring to the pupil locator map, it 
clearly appears that the erection of this school would tend to 
promote segregation. Thus the erection of this school in its pro­
posed location is hereby enjoined. If the Board desires to 
establish another comprehensive high school, subsequent court 
approval may be obtained by submitting an appropriate loca­
tion and proper geographic zones, which will achieve and 
perpetuate integration.

Another proposal is the erection of a school for the physically 
handicapped at 2500 Fairfax Avenue. This facility is to be 
erected near Vanderbilt University. The availability of profes­
sional services from Vanderbilt University and Vanderbilt 
Hospital is stressed. The plaintiffs assert that said project 
should be located in a “ halfway” position between Vanderbilt 
University, MeHarry Medical College, and Fisk University.

The Court feels that the facility will have little, if any, effect 
on achieving a unitary school system. This Court will not



— SA-177

substitute its judgment for that of the Board, and the Board’s 
proposal is approved.

Additions and Renovations. An application has been made 
for permission to acquire additional property for Hillsboro 
School so as to transform Hillsboro into a comprehensive high 
school. This application is denied for the same reasons that the 
Goodlettsville school was not approved.

Protable classrooms, referred to generally as “ portables,” 
have been used by the Board to house students in schools which 
were all-white or had received only token integration when there 
were vacant rooms in predominantly black schools. In effect, 
portables have been used to maintain segregation. In the future, 
portables shall be used only to achieve integration and the 
Board is hereby so enjoined.

In the plan adopted by the Court, certain schools in the outly­
ing areas of the school district remain virtually all white. By 
reason of the past conduct of the Board the Court hereby sets 
forth the following restrictions to prevent these schools from 
becoming vehicles of resegregation. It is ordered that the 
schools, which have less than 15 per cent black pupils after the 
implementation of the plan, shall not be enlarged either by con­
struction or by portables, and shall not be renovated without 
prior court approval. Furthermore, no additional schools shall 
be erected without prior court approval.

By making the above restrictions, this Court does not imply 
that it will make “ year-by-year adjustments of the racial com­
position of student bodies once the affirmative duty to 
desegregate has been accomplished and racial discrimination 
through official action is eliminated from the system.” Swann, 
supra, at 575.



— SA-178

The parties will draw and submit an order to the Court within 
fifteen (15) days. However, without said order this Memoran­
dum Opinion is self-executing and must be implemented for the 
school year beginning on or about September 1, 1971. The 
Court will retain jurisdiction of this case. No stay will be 
granted by this Court. Swann, supra, at 570; United States v. 
Board o f  Public Instruction, 395 F.2d 66 (5th Cir. 1968); Brewer 
v. School Board, 397 F.2d 37 (4th Cir. 1968).

L. CLURE MORTON 
United States District Judge



SUPPLEMENTAL APPENDIX H

Robert W. Kelley et al., Henry C. Maxwell, Jr., et al., 
Plaintiffs-Appellees-Cross-Appellants, 

v.

Metropolitan County Board of Education of Nashville 
and Davidson County, Tennessee, C. R. Dorrier, Chairman, et

al.,
Defendants-Appellants-Cross-Appellees.

Nos. 71—1778, 71—1779.

United States Court of Appeals,
Sixth Circuit.
May 30, 1972.

On remand from the Court of Appeals, 436 F.2d 856, the 
United States District Court for the Middle District of Ten­
nessee, Nashville Division, L. Clure Morton, J., adopted a 
school desegregation plan and appeal was taken. The Court of 
Appeals, Edwards, Circuit Judge, held that the district judge’s 
choice of the Department of Health, Education and Welfare 
plan, which clearly appeared to be a plan for ending dual system 
in metropolitan school district based on race and substituting 
therefor a unitary one was within the court’s judicial discretion; 
that where school system has been deliberately segregated the 
board must do more than establish rules which are fair on their 
face but serve to perpetuate effects of segregation; that record 
supported finding that racial discrimination in school district 
continued until close of record if not beyond; that population 
shifts did not eliminate duty of board to present plan for unitary 
system; and that it was appropriate to take notice of proportion 
of black and white students within area and to seek as practical 
plan for ending white and black schools and substituting schools 
representative of area in which students live.

— SA-179 —



— SA-180 —

Affirmed.

McCree, Circuit Judge, filed a concurring opinion.

1. Federal Civil Procedure (key) 161

Defendants in protracted school desegregation case waived 
issue of alleged failure to comply with class action rule because 
of changes in status of original party plaintiffs since commence­
ment of the suits by failing to raise issue prior to trial and final 
adjudication of case. Fed.Rules Civ.Proc. rule 23, 28 U.S.C.A.

2. Schools and School Districts (key) 13

Class action to require school desegregation dealt with conti­
nuing constitutional violations and did not become moot 
because years of delay, much of it attributable to the defen­
dants, resulted in the graduation of the named, original student 
plaintiffs from the school system before final decision.

3. Schools and School Districts (key) 13

Where school system has been deliberately constructed on a 
segregated basis by state action, a duty inheres in school board 
to do more than to establish rules which are fair on their face 
but which simply serve to perpetuate effects of such segregation.

4. Schools and School Districts (key) 71, 72,141(1), 154

Record in desegregation case supported finding of district 
judge that racial discrimination in school construction, assign­
ment of temporary buildings, assignment of teachers, and 
assignment of students continued until close of record if not 
beyond, and that there was a background of racial discrimina­
tion by means of state law which motivated much of the school 
segregation.



5. Schools and School Districts (key) 13

Existence of population shifts in metropolitan district which 
helped to some degree to change racial composition of some 
schools during course of school desegregation case did not 
eliminate duty of school board to present plan for unitary 
school system and did not alter duty of district court, on default 
of school board to require production of a plan and order it into 
effect.

6. Schools and School Districts (key) 13

In devising plans to terminate residual effects of school 
segregation it is appropriate for the school system and district 
judge to take notice of proportion of black and white students 
within the area and to seek as practical a plan as may be for en­
ding white schools and black schools and substituting therefore 
schools which are representative of the area in which the 
students live.

7. Schools and School Districts (key) 13

Earlier finding of good faith does nothinbg to excuse defaults 
and failures of school board to devise plan for school desegrega­
tion which is effective.

8. Appeal and Error (key) 170(1)

Where no motion was filed in school desegregation case for 
relief pertaining to claims of practical busing problems sup­
posedly arising after desegregation order was filed in the district 
court, and in the Court of Appeals the statements of problems 
constituted allegations which were controverted by the plain­
tiffs, until the claims were presented in trial court with an op­
portunity for sworn testimony to be taken and facts decided by 
process of adversary hearing Court of Appeals had no jurisdic­
tion over such issues.

— SA-181 —



— SA-182 —

9. Courts (key) 405(15)

While during pendency of appeal jurisdiction of case lies in 
the appellate court, if an unexpected problem arises concerning 
actual terms of order or judgment under appeal, district court 
may upon being apprised of problem and having determined its 
substantiality with or without a hearing certify to appellate 
court the desirability of remand for completion or augmenta­
tion of appellate record.

10. Courts (key) 259
Municipal Corporations (key) 57

Neither metropolitan city council nor the state legislature 
could forbid the implementation of court mandate based upon 
United States Constitution.

11. Injunction (key) 210

Injunctive decree in school segregation case is always subject 
to modification on basis of changed circumstances.

12. Schools and School Districts (key) 13

District judge’s choice of Department of Health, Education 
and Welfare plan, which clearly appeared to be a plan for en­
ding a dual school system in metropolitan school district based 
on race and substituting therefor a unitary one which included 
the transportation of black students of grades one to four to 
outlying schools and the cross transportation of whites of 
grades five and six was within judicial discretion.



— SA-183

APPENDIX B

13. Federal Civil Procedure (key) 181

Once class action in school desegregation case had been ad­
judicated and action of trial court had been reviewed by Court 
of Appeals it was neither necessary nor proper to continue to 
redetermine standing of plaintiffs to represent class. Fed.Rules 
Civ.Proc. rule 23, 28 U.S.C.A.

Avon N. Williams, Jr., Nashville, Tenn. (Jack Greenberg, 
James M. Nabrit, III, Norman J. Chachkin, Sylvia Drew, New 
York City, on the brief), for plaintiffs as appellees and cross­
appellants.

Dick L. Lansden, Nashville, Tenn. (Harlan Dodson, Jr., 
Hamilton Gayden, Jr., Nashville, Tenn., on the brief), for 
defendants as appellants and cross-appellees.

K. William O’Connor, Civil Rights Div., Washington, D. C., 
for United States, amicus curiae.

Before EDWARDS, CELEBREZZE and McCREE, Circuit 
Judges.

EDWARDS, Circuit Judge.

In this case we do not write on a clean slate. What follows 
describes an incredibly lengthy record and settled law pertaining 
to segregated schools. We start with this latter, as recited in the 
United States Constitution and in three historic, unanimous 
decisions of the United States Supreme Court—the last dated 
1971.

“ [N]or shall any State . . . deny to any person within its 
jurisdiction the equal protection of the laws.” U.S.Const. 
Amed. XIV, § 1.



— SA-184 —

We conclude that in the field of public education the 
doctrine of “ separate but equal” has no place. Separate 
educational facilities Eire inherently unequal. Therefore, we 
hold that the plaintiffs and others similarly situated for 
whom the actions have been brought are, by reason of the 
segregation complained of, deprived of the equal protec­
tion of the laws guaranteed by the Fourteenth Amend­
ment. Brown v. Board of Education, 347 U.S. 483, 495, 74
S.Ct. 686, 98 L.Ed. 873 (1954).

[A] plan that at this late date fails to provide meaningful 
assurance of prompt and effective disestablishment of a 
dual system is also intolerable. “ The time for mere 
‘deliberate speed’ has run ou t,” Griffin v. County School 
Board, 377 U.S. 218, 234, 84 S.Ct. 1226, 12 L.Ed.2d 256; 
“ the context in which we must interpret and apply this 
language (of Brown II] to plans for desegregation has been 
significantly altered.” Goss v. Board of Education, 373 
U.S. 683, 689, 83 S.Ct. 1405, 10 L. Ed.2d 632. See 
Calhoun v. Latimer, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed. 
2d 288. The burden on a school board today is to come for­
ward with a plan that promises realistically to work now. 
Green v. County School Board of Kent County, 391 U.S. 
430, 438-439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

All things being equal, with no history of discrimina­
tion, it might well be desirable to assign pupils to schools 
nearest their homes. But all things are not equal in a system 
that has been deliberately constructed and maintained to 
enforce racial segregation. The remedy for such segrega­
tion may be administratively awkward, inconvenient, and 
even bizarre in some situations and may impose burdens 
on some; but all awkwardness and inconvenience cannot 
be avoided in the interim period when remedial ad­
justments are being made to eliminate the dual school



— SA-185 —

systems. Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 
(1971).

After 17 years of continuous litigation the Metropolitan 
County Board of Education of Nashville and Davidson County, 
Tennessee, appeals from a final order of the United States 
District Court for the Middle District of Tennessee requiring the 
School Board to take the necessary steps to end the racially 
separated school systems which it had previously been found to 
be operating. This order was a direct result of an order of this 
court approving the District Court’s findings of violations of 
equal protection and vacating a stay of proceedings. In it we had 
noted:

[T]he instant case is growing hoary with age. It is actual­
ly a consolidation of two cases. The first case, Kelley v. 
Board of Education of the City of Nashville, Civ.A. No. 
2094, was filed in September of 1955; and the second case, 
Maxwell v. County Board of Education of Davidson 
County, Civ.A. No. 2956, was filed in September of 1960. 
A whole generation of school children has gone through 
the complete school system of Metropolitan Nashville in 
the intervening years under circumstances now determined 
to have been violative of their constitutional rights. A se­
cond generation of school children is now attending school 
under similar circumstances—and the remedy is not in 
sight. Kelley v. Metropolitan County Board of Education 
of Nashville, Tennessee, 436 F.2d 856, 858 (6th Cir. 1970).

The order of the District Judge is the first comprehensive and 
potentially effective desegregation order ever entered in this 
litigation. The District Judge tells us that now the remedy is at 
least in sight.



SA-186 —

THE APPELLATE ISSUES

On appeal defendants contend 1) that the District Court had 
no jurisdiction to hear and determine this case because of failure 
to comply with Rule 23 of the Federal Rules of Civil Procedure 
and because of changes in the status of the original party plain­
tiffs since the commencement of these suits; 2) that the District 
Court’s order is invalid because it requires integration of 
schools according to a fixed racial ratio, in violation of the rules 
set out in Swann v. Charlotte-Mecklenburg Board of Educa­
tion, supra, 402 U.S. at 23, 24, 91 S.Ct. 1267, 28 L.Ed.2d 554 
and 3) that the plan ordered into effect should be reconsidered 
because of what the defendant School Board claims to be 
adverse effects on the health and safety of school children in­
volved.

Plaintiffs as cross-appellants claim 1) that the District Court 
erred in adopting the Department of Health, Education and 
Welfare plan when the plan proposed by plaintiffs would have 
achieved a greater degree of integration; and 2) that the HEW 
plan should have been rejected because it places the burden of 
desegregation disproportionately upon Negro children.

HISTORY OF THE NASHVILLE—DAVIDSON 
COUNTY CASE

The history of school desegregation from Brown v. Board of 
Education, supra, to date can be traced in this case in the pro­
ceedings in the District Court, in this court, and in the United 
States Supreme Court: Kelley v. Board of Education of City of 
Nashville, 139 F.Supp. 578 (M.D.Tenn.1956) (Dissolution of 
three-judge court); Kelly v. Board of Education of City of 
Nashville, 159 F.Supp. 272 (M.D.Tenn.1958) (Disapproval of 
integratin plan and grant to Board of additional time to file a 
new plan); Kelley v. Board of Education of City of Nashville, 8 
R.R.L.R. 651 (M.D.Tenn. 1958) (Approval of 12-year plan);



— SA-187

Kelley v. Board of Education of City of Nashville, 270 F.2d 209 
(6th Cir. 1959) (Upholding District Court order); Kelley v. 
Board of Education of City of Nashville, 361 U.S. 924, 80 S.Ct. 
293, 4 L.Ed.2d 240 (1959) (Denial of certiorari); Maxwell v. 
County Board of Education of Davidson County, 203 F.Supp. 
768 (M.D.Tenn.1960); Maxwell v. County Board of Education 
of Davidson County, 301 F.2d 828 (6th Cir. 1962), reversed in 
part and remanded sub nom. Goss v. Board of Education of 
Knoxville, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); 
Kelley v. Metropolitan County Board of Education of Nashville 
and Davidson County, 293 F.Supp. 485 (M.D.Tenn.1968) (Fur­
ther proceedings in a consolidation of Maxwell, supra, and Kel­
ly, supra)', Kelley v. Metropolitan County Board of Education, 
317* F.Supp. 980 (M.D.Tenn.1970); Kelley v. Metropolitan 
County Board of Education of Nashville, Tennessee, 436 F.2d 
856 (6th Cir. 1970) (Memorandum opinion of the U. S. District 
Court (M.D.Tenn.) (filed June 28, 1971; Judgment (filed July 
15, 1971)).

This case began in 1955 on the heels of the United States 
Supreme Court’s decision in Brown v. Board of Education, 
supra, holding that “ separate educational facilities are inherent­
ly unequal,” supra, 347 U.S. at 495, 74 S.Ct. at 692. Plaintiffs, 
in a class action sought invalidation of the Tennessee school 
laws, T.C.A. §49-3701 et seq., which in specific terms required 
segregation of school pupils by race. (See Appendix A) In 1956 a 
three-judge federal court which had been convened to pass on 
the constitutionality of the state statute was dissolved when the 
defendant Board of Education conceded the unconstitutionality 
of the state statute by which it had previously been governed. 
Kelley v. Board of Education of City of Nashville, 139 F.Supp. 
578 (M.D. Tenn.1956). The case was then remanded to the 
United States District Court for the Middle District of Ten­
nessee. The District Judge determined that the case was an ap­
propriate class action under Rule 23 of the Federal Rules of



— SA-188 —

Civil Procedure (Record, Min. Book 19 at 683). He ordered the 
defendant School Board to prepare and present a plan for 
desegregation of the Nashville schools.

Before judgment was entered, the State of Tennessee in 
January 1957 adopted a Parental Preference Law, T.C. A. § 
49-3704, Pub.Acts 1957, cc. 9-13, 2 Race Rel.L.Rep. 215 (1957). 
(See Appendix A) This statute provided for separate white, 
black, and mixed schools, with attendance to be determined by 
parental preference. The District Court in September of 1957 
held this statute to be unconstitutional on its face. 2 Race 
Rel.L.Rep. 970 (1957).

The defendant School Board thereupon (and nonetheless) 
presented a parental preference plan for white, black, and mix­
ed schools substantially the same as that called for by the un­
constitutional state law.

In February of 1958 the District Court held the School Board 
plan to be unconstitutional.

Later in the same year a grade-a-year desegregation plan was 
submitted by defendant School Board, approved by the District 
Court and the Court of Appeals, with certiorari denied by the 
United States Supreme Court.

In 1960 a suit was filed to desegregate the Davidson County 
schools. Maxwell v. County Board of Education of Davidson 
County, supra. It was brought on behalf of Negro children 
alleged to be denied their constitutional rights to equal educa­
tion in the county school system. Again the suit was brought as 
a class action and recognized as such by the District Court under 
Rule 23 Fed.R.Civ.P. (Record, Min. Book 24 at 114.) The 
Davidson County School Board proposed a free transfer plan 
and it was approved by the District Court. On appeal Maxwell’s 
free transfer plan was invalidated by the United States Supreme 
Court, sub nom., Goss v. Board of Education of Knoxville, 373 
U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963).



SA-189 —

In 1963 the school systems of Nashville and Davidson County 
were then consolidated as part of a general consolidation of the 
City of Nashville and County of Davidson into one 
metropolitan government. Petitions for further relief, including 
an order to desegregate the Nashville-Davidson County schools 
and to enjoin further school construction pending such an 
order, were filed in the consolidated case, with additional plain­
tiffs intervening.

In 1968 the United States Supreme Court took further note of 
how the Brown II  phrase “ deliberate speed” was being 
employed to delay rather than to implement school desegrega­
tion.

For purposes of reemphasis, we again quote the unanimous 
opinion:

[A] plan that at this late date fails to provide meaningful 
assurance of prompt and effective disestablishment of a 
dual system is also intolerable. “ The time for mere 
‘deliberate speed’ has run ou t,”  Griffin v. County School 
Board, 377 U.S. 218, 234 [84 S.Ct. 1226, 12 L.Ed.2d 256] 
“ the context in which we must interpret and apply this 
language [of Brown II] to plans for desegregation has been 
significantly altered.”  Goss v. Board of Education, 373 
U.S. 683, 689 [83 S.Ct. 1405, 10 L.Ed.2d 632]. See 
Calhoun v. Latimer, 377 U.S. 263 [84 S.Ct. 1235, 12
L.Ed.2d 288]. The burden on a school board today is to 
come forward with a plan that promises realistically to 
work, and promises realistically to work NOW. Green v. 
County School Board of Kent County, 391 U.S. 430, 
438-439 [88 S.Ct. 1689, 20 L.Ed.2d 716] (1968). (Emphasis 
added.)

On the heels of these decisions plaintiffs sought relief consis­
tent with them and lengthy hearings followed. In 1970 the 
District Judge entered findings of fact which were subsequently



SA-190 —

reviewed and given effect by this court. Kelley v. Metropolitan 
County Board of Education of Nashville, Tennessee, 436 F.2d 
856 (1970). In its opinion this court said:

It would be well for those in authority in Nashville and David­
son County to read the able opinion [District Court opinion 
entered July 16, 1970] which we now revitalize by our present 
order. The emphasis in the quotation which follows is that of 
this court:

“ [I]t is the Court’s view that in the area of school zoning, 
school boards will fulfill their affirmative duty to establish a 
unitary school system only if attendance zone lines are drawn in 
such way as to maximize pupil integration. In drawing such 
lines, the defendant school board may properly consider in the 
total equation such factors as capacities and locations of 
schools, physical boundaries, transportation problems, and 
cost; however, none of these considerations can supersede the 
importance of the primary goal of maximizing integration.

“ In looking to the facts of this case, the Court finds that 
many of the elementary and secondary school zone lines in the 
Nashville and Davidson County School System have not been 
drawn so as to minimize integration. With the exception o f  zone 
lines drawn fo r  new schools, the zone lines currently in existence 
were drawn prior to Brown v. Board o f  Education with the aim 
o f  maintaining segregation. Though there has been some black 
population migration to formerly white areas, in large part these 
zone lines continue to serve quite well the segregative purpose 
fo r  which they were originally established. The truth of this 
statement is made manifest when one examines the racial 
makeup of the pupil population in areas containing several con­
tiguous attendance zones. In East Nashville, for example, there 
is a cluster of five elementary schools having contiguous atten­
dance zones. Of these five schools, white pupils are in the great



— SA-191

majority in four schools, Baxter, Dalewood, Rosebank, and 
Bailey, while black students are in the majority in one of the 
schools, Inglewood. As a reference to the zone map will in­
dicate, Inglewood is completely surrounded by the four 
predominantly white schools, and the Inglewood zone is drawn 
to enclose most of the black population living in the five school 
area. Defendants argue that they are applying the 
‘neighborhood’ concept in the drawing of elementary school 
zone lines. I f  such a concept is indeed being applied in this five  
school area, it appears to the Court that it is being applied solely 
to perpetuate segregation. Defendants contend that one o f  the 
prime advantages o f  ‘neighborhood’ schools is that they allow 
pupils to walk to and from  school. I f  this is true, it is difficult to 
see U>hy black pupils who live closer to Baxter or Bailey schools, 
fo r  instance, are required to walk the greater distance to attend 
Inglewood school.

‘ ‘The same pattern is repeated in a seven school area in south 
and west Nashville. In this situation, the attendance zones for 
Ransom and Eakin schools are contiguous with the attendance 
zones for Ford, Greene, Head, Carter Lawrence, Murrel and 
Clemons schools. The former two schools are almost completely 
white, while the latter five schools are almost totally black.7

7 See Map No. 2 in Appendix and note the following figures* on the 
enrollment of these schools:

W B %B
Ford Greene 0 887 100
Head 0 791 100
Carter Lawrence 0 516 100
Murrel 0 328 100
Clemons 51 519 90
Ransom 355 2 1
Eakin 487 5 1

*Based on plaintiff’s exhibit No. 3.



SA-192

Once again it appears that the zone lines as drawn insure that 
white neighborhoods will have white schools and black 
neighborhoods will have black schools. As the above two il­
lustrations make clear, by maintaining the old dual school 
zones, defendant has encouraged continued segregation rather 
than significant integration in the elementary schools.

“ Turning to junior high school zones, the Court finds much 
the same situation as in the elementary school. Though the 
‘neighborhood’ concept is not applied in secondary school zon­
ing, junior high school zones are drawn so that each school 
serves a particular residential area or ‘service area’ as it is 
sometimes referred to by defendant. These service areas cover a 
broader geographic area than a single neighborhood, for several 
elementary schools within their respective neighborhood zones 
feed graduating students into the junior high school within 
whose zone they lie. This process is generally described in terms 
of a ‘feeder pattern.’ Once again, a look at the existing zone 
lines convinces the Court that the junior high school attendance 
zones and the ‘feeder patterns’ which graduate elementary 
students into the junior high schools are structured so as to 
foster for the most part continued segregation or at best only 
token integration. It is apparent that the zone lines as presently 
drawn are designed to provide racially identifiable ‘black’ 
schools fo r  black residential areas and ‘white’ shcoolsfor white 
residential areas. For example, looking at a cluster of six con­
tiguous junior high school zones, the Court finds that Bass, 
West End, and Moore Junior high schools are all predominantly 
white schools with their attendance zones being drawn so as to 
correspond significantly with white residential areas. On the 
other hand, Washington, Rose Park and Waverly-Bellmont are 
all racially identifiable as black schools and their attendance 
zones have been drawn in a manner effectively to prevent a



SA-193

significant number of black pupils from attending school out­
side of the black residential area.8

8 See Map No. 3 in Appendix and note the following figures:*

W B
Bass 777 12 2
West End 578 40 6
Moore 999 85 8
Washington 0 1,347 100
Rose Park 11 527 98
Waverly-Belmont 26 260 91

* Based on plaintiff’s exhibit No. 3.

“Finally, looking to the high school zones, there is similar 
evidence o f  continued duality in the school system. For exam­
ple, of five contiguous high school zones, three of the schools, 
Cohn, Hillsboro and Central, are racially identifiable as white 
schools. Their attendance zone lines form the boundary line be­
tween the predominantly white residential areas in south and 
west Nashville and the black residential areas to the north and 
east. These black areas are served by Cameron and Pearl high 
schools.9

9 See Map No. 4 in Appendix and note the following figures:

W B %B
Cohn 960 45 4
Hillsboro 1,223 15 1
Central 899 202 18
Pearl 1 1,308 100
Cameron 0 1,212 100

“ In connection with the segregative effect of present school 
zoning, it is interesting to note that while portable classrooms 
are in limited use in predominantly Negro schools, approx­
imately 117 portables are in use in racially identifiable white



— SA-194 —

schools. These predominantly Negro schools, on the basis of 
their rated maximum capacities, have approximately 5,400 
vacancies, yet the white schools, in zones tailored to white 
residential sections, are overcrowded. It would seem that rezon- 
ing could serve the dual purpose of alleviating this overcrowding 
and, at the same time, promoting the goal of integration.

“It is the Court’s conclusion that defendant’s current policy o f  
attendance zoning does not facilitate rapid conversion from  a 
dual to a unitary school system, sis is evident from  the forego­
ing discussion, the zone lines as they presently exist foster con­
tinued segregation in many instances.'0 Corresponding as

10 Of the 139 regular schools in the system in 1969—70, 88 had less 
than 10% black enrollment, 22 had 10% to 40% black enrolling (with 
the total enrollment of these latter 22 schools constituting only 16% of 
the entire metropolitan school enrollment), and finally 29 schools had 
more than 40% black enrollment. A clear racial pattern is present.

they do to racial residential patterns, it is difficult to envision 
any other result. Historic zones lines which purposely promote 
segregation must be altered. In making such alterations defen­
dant board should take those steps ‘which promise realistically 
to convert promptly to a system without a “white” school and a 
“Negro” school, but ju st schools.’ Green v. County School 
Board of New Kent County, supra [391 U.S. 430] at 442, [88 S. 
Ct. 1689, 20 L.Ed.2d 716].”

Kelley v. Metropolitan County Board of Education of 
Nashville, Tennessee, supra at 859—861. (Footnotes in quota­
tion.)”

We then remanded the case with instructions:

We believe that ‘‘the danger of denying justice by delay” 
in this case is as clear as it was in Alexander, supra; Green 
v. County Board, supra, and Carter, supra.



— SA-195

We now vacate the stay of August 25, 1970, with the in­
tention of leaving in full effect and operation the judgment 
of the District Court of August 13, 1970. The present 
District Judge should proceed immediately to hold the 
necessary hearing upon objections to the Board of Educa­
tion plan and thereafter to approve or modify same as the 
record which is developed appears to require, and 
thereupon enter an order of implementation. The time 
schedule for consideration and implementation of this 
order should, of course, meet the “ maximum” standard 
set forth by the Supreme Court in the second Carter case 
(Carter v. West Feliciana Parish School Board, 396 U.S. 
290, 293, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970)). The 

‘ District Court may, of course, require reports (including a 
pupil locator map) and recommendations (including those 
of expert witnesses and the Department of Health, Educa­
tion and Welfare) and consider them in its order of im­
plementation. Id. at 862.

Acting within the terms of his sworn obligation a new District 
Judge proceeded to implement this court’s instructions.

While he was thus engaged, the United States Supreme Court 
decided the third history making case pertaining to school 
segregation (Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)). The 
opinion for a unanimous Supreme Court was written by Chief 
Justice Burger. In recital of the facts and conclusions of law, it 
parallels and controls our decision of this case.

We granted certiorari in this case to review important 
issues as to the duties of school authorities and the scope of 
powers of federal courts under this Court’s mandates to 
eliminate racially separate public schools established and 
maintained by state action. Brown v. Board of Education, 
347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873] (1954) (Brown
I).



— SA-196 —

This case and those argued with it arose in States having 
a long history of maintaining two sets of schools in a single 
school system deliberately operated to carry out a govern­
mental policy to separate pupils in schools solely on the 
basis of race. That was what Brown v. Board of Education 
was all about. These cases present us with the problem of 
defining in more precise terms than heretofore the scope of 
the duty of school authorities and district courts in im­
plementing Brown I  and the mandate to eliminate dual 
systems and establish unitary systems at once. Swann v. 
Charlotte-Mecklenburg Board of Education, supra at 
5—6, 91 S.Ct. at 1271 (Footnote omitted.)

These words apply exactly to the fundamantal problems in 
the instant case also. The District Court order here under review 
is designed to “ eliminate racially separate public schools 
established and maintained by state action.” Tennessee is, as we 
have noted above, a state “ having a long history of maintaining 
two sets of schools in a single school system deliberately 
operated to carry out a governmental policy to separate pupils 
in schools solely on the basis of race.” (See Appendix A) We 
here consider a District Court order designed to “ implement 
dual systems and establish unitary systems at once.”

The District Court held numerous hearings and received 
voluminous evidence. In addition to finding certain actions 
of the school board to be discriminatory, the court also 
found that residential patterns in the city and county 
resulted in part from federal, state, and local government 
action other than school board decisions. School board ac­
tion based on these patterns, for example, by locating 
schools in Negro residential areas and fixing the size of the 
schools to accommodate the needs of immediate 
neighborhoods, resulted in segregated education. These 
findings were subsequently accepted by the Court of Ap­
peals. Swann v. Charlotte-Mecklenburg Board of Educa­
tion, supra at 7, 91 S.Ct. at 1272.



— SA-197

This paragraph applies to the facts of the instant case without 
change of a single word.

Chief Justice Burger then turned to the question of ap­
propriate remedial measure to eliminate state imposed segrega­
tion:

The objective today remains to eliminate from the public 
schools all vestiges of state-imposed segregation. Segrega­
tion was the evil struck by Brown I  as contrary to the equal 
protection guarantees of the Constitution. That was the 
violation sought to be corrected by the remedial measure 
of Brown II. that was the basis for the holding in Green 
that school authorities are “ clearly charged with the affir- 

• mative duty to take whatever steps might be necessary to 
convert to a unitary system in which racial discrimination 
would be eliminated root and branch.” 391 U.S., at 
437—438 [88 S.Ct. 1689, 20 L.Ed.2d 716].

If school authorities fail in their affirmative obligations 
under these holdings, judicial authority may be invoked. 
Once a right and a violation have been shown, the scope of 
a district court’s equitable powers to remedy past wrongs is 
broad, for breadth and flexibility are inherent in equitable 
remedies.

* * * * * *

In seeking to define even in broad and general terms how 
far this remedial power extends it is important to 
remember that judicial powers may be exercised only on 
the basis of a constitutional violation. Remedial judicial 
authority does not put judges automatically in the shoes of 
school authorities whose powers are plenary. Judicial 
authority enters only when local authority defaults.

School authorities are traditionally charged with broad 
power to formulate and implement educational policy and



— SA-198

might well conclude, for example, that in order to prepare 
students to live in a pluralistic society each school should 
have a prescribed ratio of Negro to white students 
reflecting the proportion for the district as a whole. To do 
this as an educational policy is within the broad discre­
tionary powers of school authorities; absent a finding of a 
constitutional violation, however, that would not be within 
the authority of a federal court. As with any equity case, 
the nature of the violation determines the scope of the 
remedy. In default by the school authorities of their 
obligation to profer acceptable remedies, a district court 
has broad power to fashion a remedy that will assure a 
unitary school system. Swann v. Charlotte-Mecklenburg 
Board of Education, supra at 15—16, 91 S.Ct. at 1275.

The default of school authorities referred to by Chief Justice 
Burger is equally illustrated by the history of our present case.

With this history and these principles before us, a tabular 
comparison of the fact situations and District Court plans 
presented in the Swann and Kelley case is appropriate:



— SA-199

Swann v. Bd. Ed.
Date of original 

complaints
1965

No. of schools (before 
plan)

107 (1968—69)

No. of schools (after 
plan)

1 07

Total enrollment 84,000 (approx.)

Per cent white 
students

71%

Per cent black 
students

29%

W afking distance 
(after plan)

IVi miles

No. students bused 
prior to plan

23,600

No. white students 
bused prior to plan 

No. black students 
bused prior to plan

Exact figures not 
available, but it is 
clear that a large 
majority of stu­
dents bused were 
white

Extent of segregation 
to plan

In 1969 36 of 
the black students 
were then attend­
ing schools that 
were either total­
ly or 99% black.

Kelley v. Bd. Ed.
1955

139 (1970—71)

133 (1971-72)

94,170 (1970—71) 

75% (75.12%)

25% (24.63%)

1 Vi miles

33,485

30,000

3,500 (approx.)

In 1969 81% of all 
white students were 
attending schools that 
were over 90% white, 
while 62% of all black 
students were attend­
ing schools that were 
over 90% black.



— SA-200 —

Net increase in No. of 
students bused as a 
result of court 
adopted plan

No. of additional 
buses required

No. of buses obtained 
to carry out plan

Ratio of white to 
dent population 
employed by court 
approved plan as 
guide

Per cent of schools 
desegregated by 
plan within guide 
related ratios

One race schools 
remaining under 
plan due to travel 
distance

Swann v. Bd. Ed.

1 3 , 3 0 0
138 54-passenger 
buses
Court opinions do 
not contain this 
information.

71°7o—29%

100% of elemen­
tary* schools 
would have black 
student popula­
tion of 9%—38%.

Apparently none

Kelley v. Bd. Ed.

15,000 (approx.)
82 84-passenger buses

N o n e  

75 %— 25%

77% of elementary 
schools w'ould have a 
black student popula­
tion of 16%—41%; 
22 outlying schools 
would have a black 
student population of 
0%  —  22%

5

♦Junior and Senior High Schools desegregation under the Swann plan 
was likewise considerably closer to ideal unitary school standards than 
the plan approved by the District Court in this case.



— SA-201 —

These figures show that during the three-year period nearly 
two-thirds of the black students in the Nashville system went to 
racially identifiable schools, and more than four-fifths of the 
white students attended racially identifiable schools.

Busing did not come to Nashville by federal court decree. 
This record demonstrates that Nashville and Davidson County 
have long used extensive bus transportation as a normal part of 
their school systems. Busing was, however, employed wholly 
disproportionately for the transportation of its white students as 
compared to its black students (30,000 white to 3,500 black), in 
this regard the District Judge’s opinion noted:

Since the defendants have consistently transported large 
numbers of students to promote segregation, some adjust­
ment must be made to reverse this unconstitutional prac­
tice.

The District Court clearly found that defendants had 
defaulted in relation to their duty to dismantle their segregated 
school system prior to 1970. The District Court also found that 
although defendants had repeatedly been asked and ordered to 
produce an adequate plan, they had failed to do so. It noted 
that the School Board accepted as a policy statement “ an ideal 
student racial ratio of an integrated school as one which is 15% 
to 35% black.”  Yet its analysis of the plan actually submitted 
by the School Board showed it to be utterly inadequate.

The Board of Education submitted a plan for pupil in­
tegration in August, 1970. Included in this plan was a 
policy statement that the school board “ accepts as an ideal 
student racial ratio of an integrated school as one which is 
15% to 35% black.”

The August, 1970 plan made 49 minor geographic zone 
changes, and provided for the transportation of an addi­
tional 1162 pupils. The result of the plan was to leave the



— SA-202 —

The general principles of Swann were, of course, enunciated 
by the Supreme Court for guidance of District Courts and 
Courts of Appeals in all school segregation cases. In view of the 
close factual resemblances between this case and Swann, these 
principles, however, apply here a fortiori.

THE REMEDIAL ORDER OF 
THE DISTRICT COURT

The nature of the problem facing the District Court many 
years after Brown v. Board of Education, 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873 (1954), is vividly portrayed in the 
statistics and the table set forth below.1

Racial Composition for the Three 
Years Preceding Hearings on 

Motion for Further Relief
1967- 68—85% of the white students attended schools that were

over 90% white.
63% of the black students attended schools that were 
over 90% black.

1968- 69—80% of the white students attended schools that were
over 90% white.
61% of the black students attended schools that were 
over 90% black.

1969- 70—-81% of the white students attended schools that were
over 90% white.
62% of the black students attended schools that were 
over 90% black.

1 These statistics are based largely upon plaintiffs’ exhibits in the 
court below, but we can find no contrary evidence offered by defen­
dants.



— SA-203 —

elementary schools significantly unchanged. Six of the 38 
high schools and junior high schools would remain at least 
50 per cent black. Fifty-seven per cent of the black high 
school and junior high school students would attend these 
six schools. The racial composition of two schools would 
be at least 95 per cent black and four other schools would 
be at least 90 per cent black. This would result in 47 per 
cent of the black students attending schools where the 
composition would be above 90 per cent black. Eight 
schools, acommodating 20 per cent of the black students, 
would operate with 15-35 per cent black students. Fifteen 
schools would operate with 95 per cent or above white 
students. (Footnotes omitted.)

Concerning the School Board plan, the District Court concluded:

The pupil integration plan submitted by the school 
board, viewed in the most favorable light, constitutes mere 
tinkering with attendance zones, and represents only a 
token effort. It clearly falls short of meeting the objectives 
and tests set out in the decisions of the United States 
Supreme Court. Swann v. Charlotte-Mecklenburg Board 
of Education, supra; Davis v. Board of School Commis­
sioners, supra; Green v. County School Board, 391 U.S. 
430 [88 S.Ct. 1689, 20 L.Ed.2d 716] (1968). In effect, the 
defendant has made no effort to meet its affirmative duty 
to establish a unitary school system “ in which racial 
discrimination would be eliminated root and branch.” 
Green v. County School Board, supra, at 437-438 [88 S.Ct. 
1689, 20 L.Ed.2d 716]; quoted in McDaniel v. Barresi, 
[402] U.S. [39], [91 S.Ct. 1287] 28 L.Ed.2d 582, 585 (April 
20, 1971).

Since the defendants have, in effect, failed to submit a 
constitutionally sufficient plan, the Court must examine 
the other plans. (Footnote omitted.)



— SA-204 —

The plan adopted by the District Judge was one proposed by 
the United States Department of Health, Education and 
Welfare. It is described in detail in his Memorandum Opinion, 
dated June 28, 1971, and in his Judgment, dated July 15, 1971, 
both of which are by reference hereby incorporated as a part of 
this opinion. For our present purpose it suffices for us to note 
that in all respects which have come to our attention, the HEW 
plan approved by the District Judge represents a somewhat less 
stringent approach to desegregation than the plan approved by 
the United States Supreme Court in Swann, supra.

Major portions of the Court’s comprehensive Opinion and 
Judgment, such as those dealing with faculty desegregation, 
school construction and maintenance, and transfer policy, etc., 
are not discussed herein because no appellate issues have been 
presented as to those features.

I The Rule 23 Issue

As to the Rule 23 issue, earnestly if belatedly sought to be 
raised by appellants, we affirm the Memorandum Order of the 
District Judge, dated July 21, 1971, for the reasons set forth 
therein, and print same for ready reference as Appendix B.

[1] Further, we note that this issue was clearly waived by 
failure of appellants to raise it prior to trial and final adjudica­
tion of this case.

[21 We also note that such a class action as this dealing with 
continuing constitutional violations does not become moot 
because of years of delay (much of it attributable to appellants) 
which occasioned the graduation of the named, original student 
plaintiffs from the school system before final decision.



— SA-205

[6] Perhaps the primary thing that the Swann case decided 
was that in devising plans to terminate such residual effects, it is 
appropriate for the school system and the District Judge to take 
note of the proportion of white and black students within the 
area2 and to seek as practical a plan as may be for ending white 
schools and black schools and substituting therefor schools 
which are representative of the area in which the students live.

We have noted that the District Judge in Swann employed a 
flexible 71% white to 29% black population ratio as a guide in 
seeking a practical plan. The Supreme Court specifically ap­
proved his doing so. See Swann v. Charlotte-Mecklenburg 
Board of Education, supra, 402 U.S. at 16, 23-24, 91 S.Ct. at 
1267, 28 L.Ed.2d 554. The District Judge, in this case clearly 
read and followed the Swann guideline. As to this issue, we find 
no error.

[7] An earlier finding of “ good faith” does nothing to excuse 
the defaults and failures shown by this record. “ The measure of 
any desegregation plan is its effectiveness.”  Davis v. School 
Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 
1289, 1292, 28 L.Ed.2d 577 (1971). See also Green v. County 
School board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 
(1968).

Ill Practical Problems

18] If there is an appellate issue of substance in this appeal, it 
is to be found in the practical problems which appellants claim 
have developed since the entry of the District Judge’s order. Ap­
pellant summarizes these issues thus:

2 The area referred to in this case is all of Davidson County, in­
cluding the City of Nashville, which is included in the jurisdiction of 
defendant Metropolitan Board of Education.



— SA-206 —

II The Ratio and Residual 
Effect Issues

(Plaintiffs’ stated Issues 2, 3 & 4)

[31 Where a school system has been deliberately constructed 
on a segregated basis by state action, a duty inheres in the 
School Board to do more than to establish rules fair on their 
face which simply serve to perpetuate the effects of such 
segregation. Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1, 26, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

[4] The record in this case supports the District Judge’s find­
ings that racial discrimination in school construction, assign­
ment of temporary buildings, assignment of teachers, and 
assignment of students continued until the close of the 
record—if not beyond. The record also discloses a background 
of racial discrimination by means of state law which motivated 
much of the school segregation. (See Appendix A)

15] The fact that population shifts in the metropolitan school 
district have helped to some degree to change the racial com­
position of some schools during the course of litigation does not 
eliminate the duty of the school board to present a plan for a 
unitary school system.

Nor, of course, does it alter the duty of the District Court on 
default of the school board to require production of such a plan 
and order it into effect. Chief Justice Burger put the matter thus 
in the Davis case:

Having once found a violation, the district judge or 
school authorities should make every effort to achieve the 
greatest possible degree of actual desegregation, taking into 
account the practicalities of the situation. Davis v. School 
Commissioners of Mobile County, supra, 402 U.S. at 37, 
91 S.Ct. at 1292.



— SA-207

A plan which exposes the children in the school system 
to undue danger to health and accident, interferes with 
their education by requiring excessive periods of time on 
buses, causes them to leave home before daylight or to 
return home after dark, exposes them to the dangers of 
travel in old and inadequately maintained equipment and 
causes elementary school children, both black and white, 
to suffer hardships to which young children should not be 
exposed can hardly be termed feasible, workable, effective 
and realistic.

[9] Substantial as these problems appear to be on the surface, 
there are two reasons why no relief can be granted in this forum. 
The.first is that no motion for relief pertaining to these facts has 
ever been filed by appellant in the District Court. These 
statements at this point are allegations and they are con­
troverted by the appellee. This, of course, is an appellate 
court—not a trial court. As appellants well know, the arena for 
fact-finding in the federal courts is the United States District 
Court. Until these claims have been presented in a trial court, 
with an opportunity for sworn testimony to be taken and con­
troverted issues and facts decided by the process of adversary 
hearing, this court has no jurisdiction.3

3 During the pendency of an appeal, jurisdiction of the case lies, of 
course, in the appellate court. There is, however, familiar law to deal 
with an unexpected problem which arises in this period concerning the 
actual terms of the order of judgment under appeal. The District 
Court may on being apprised of the problem and having determined 
its substantiality (with or without hearing) certify to the appellate 
court the desirability of a remand for completion or argumentation of 
the appellate record. No memory in this court encompasses a refusal 
of such a request.

The record is clear that no request for remand was made by the 
District Court, obviously, at least in part, because appellants made no 
motion for relief before the District Court.



SA-208 —

The second reason as to why appellants are entitled to no 
relief on this issue probably serves to explain the first. The entire 
“ record” upon which appellant bases his plea for relief as to 
practical problems is a “ Report to the Court” of Dr. Brooks, 
Director of Schools of the Metropolitan County Board of 
Education. This report is dated October 18, 1971, just over a 
month after the opening of school. While we are advised that it 
was sent to the District Judge, as we have noted, no motion of 
any kind seeking any District Court action was ever filed con­
cerning it. Even more important, the statement on its face sug­
gests that local authorities in Nashville and Davidson County 
have not made good faith efforts to comply with the order of 
the District Judge.

Dr. Brooks’ affidavit does present this exculpatory explana­
tion which serves to point in the direction of other authorities as 
those responsible for the inconveniences and hazards of which 
Dr. Brooks’ statement speaks. The statement says:

The School Board is fiscally dependent in that its 
budgets must be approved by the Metropolitan City Coun­
cil. In approving the budget of the School Board on June 
30, 1971, Council members demanded assurance that no 
funds included in the budget would be used to purchase 
buses for the purpose of transporting students to establish 
a racial balance. The 1971-72 budget did provide for the 
purchase of 18 large buses to replace obsolete equipment to 
provide transportation for students to the new comprehen­
sive McGavock High School.

[10] It is clear, however, that neither the Metropolitan City 
Council or, for that matter, the Legislature of Tennessee can 
forbid the implementation of a court mandate based upon the 
United States Constitution. In a companion case to Swann, 
supra, Chief Justice Burger, writing again for a unanimous 
court held that an anti-busing law which flatly forbids assign­



— SA-209

ment of any student on account of race or for the purpose of 
creating a racial balance or ratio in the schools and which pro­
hibits busing for such purposes was invalid as preventing im­
plementation of desegregation plans required by the Fourteenth 
Amendment. North Carolina State Board of Education v. 
Swann, 402 U.S. 43, 45-46, 91 S.Ct. 1284, 28 L.Ed.2d 586 
(1971). See also Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 
L.Ed.2d 5, 19 (1958).

Dr. Brooks’ statement also furnishes the bus schedule of the 
Metropolitan County Board of Education by yearly models. It 
shows that the Board has an average of 18.9 buses for each of 
the last 10 model years. The 18 buses purchased in 1971 were 
described by Dr. Brooks as “ to replace obsolete equipment.”  It 
appears from the Metropolitan Board’s own statements that the 
Board and the local authorities in Nashville did not purchase 
one piece of transportation equipment for the purpose of con­
verting the Metropolitan County Board of Education school 
system from a dual school system segregated by race into a 
unitary one, as called for by the District Judge’s order.

[11] At court hearing we had been puzzled as to why counsel 
for the Board had failed to go back to the District Court to 
report on the grievous circumstances which he so strongly alleged 
before us. Like most decrees in equity, an injunctive decree in a 
school desegregation case is always subject to modification on 
the basis of changed circumstances. Sloan v. Tenth School 
District of Wilson County, 433 F.2d 587, 589-590 (6th Cir. 
1970). Further acquaintance with the record, which, of course, 
the District Judge would have known in detail, leaves us in no 
further quandry as to the reasons for counsel’s reluctance.

IV Plaintiffs-Appellants’ Plan

[12] Our review of this record convinces us that the District 
Judge’s choice of the HEW plan as opposed to plaintiffs’ plan 
was well within his judicial discretion. It may not be ideal, but



— SA-210 —

to us it seems clearly to be a plan for ending a dual school 
system based on race and substituting therefor a unitary one. It 
promises to work and to work now. Green v. County School 
Board of Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20L.Ed.2d 
716 (1968).

V. Plaintiffs-Cross-Appellants’
Discrimination Claim

Plaintiffs-Cross-appellants claim that the grade school plan 
discriminates against Negro students in the lowest elementary 
grades.

The feature complained of in this issue is the transportation 
of black students in grades 1-4 to outlying schools, paralleled by 
the cross-transportation of white students in grades 5-6. In this 
regard the HEW plan appears to follow the pattern of the 
school plan approved in Swann. Swann v. Board of Education, 
supra, 402 U.S. at 10, 91 S.Ct. 1267, 28 L.Ed.2d 554. The 
Supreme Court made no reference to this feature, and neither in 
Swann nor in this case does the record seem to provide adequate 
rationale for it. We do not believe, however, that we can ap­
propriately hold that the District Judge abused his discretion in 
approving the HEW plan which (like the plan in Swann) incor­
porated this feature.

It may be that this is a temporary expedient or it may be that 
there are practical reasons to justify it for longer duration. In 
any event, any adverse effects of this aspect of the plan can, of 
course, likewise be brought to the District Judge’s attention 
when the case is back before him.

The Intervention

Twenty-four hours before oral arguments in this appeal, the 
United States Department of Justice filed a motion to intervene 
as amicus curiae. In spite of the extraordinary delay in filing the



SA-211 —

motion, we granted leave to intervene and invited the represen­
tative of the Justice Department who appeared to address the 
court.

On reading the motion, hearing oral argument, and question­
ing counsel, we determined that the representative of the Justice 
Department had not had the opportunity to read the District 
Court record in this case and was not aware in advance of hear­
ing that the claimed practical problems had never been 
presented to or adjudicated by the District Judge.

One America

This nation has been told by a Presidential Commission that 
our country is rapidly becoming divided into two societies—one 
black and one white. Report of National Advisory Commission 
on Civil Disorders 1 (3/1/68).

The Constitution of the United States was written for one na­
tion, “ indivisible.” As it speaks to men’s consciences, the Con­
stitution argues against division and apartheid.

In the public domain, however, the Constitution commands. 
Here the constitutional command is One America.

The Constitution and the Supreme Court opinions quoted 
above do not command the use of busing any more than they 
command the use of books, desks, paper, pens, buildings, 
lights, heat, and other tools, equipment and supplies needed in 
modern life and in modern education. What the Constitution 
and the Supreme Court say about the principal issue of this case 
is that no one may forbid a school board (or a federal court) 
from employing any of the tools of modern life in carrying out a 
constitutional mandate. Davis v. Board of School Commis­
sioners of Mobile County, 402 U.S. 33, 37-38, 91 S.Ct. 1289, 28 
L.Ed.2d 577 (1971).



— SA-212 —

The District Court order in this case specifically retained 
jurisdiction. Thus, upon our affirmance, the door of the 
District Court is clearly open (as it has been!) to the parties to 
present any unanticipated problems (not resulting from failure 
to comply with its order) which may have arisen or may arise in 
the future.

We now affirm the findings of fact, conclusions of law, and 
judgments of the District Court.

The District Judge’s order noted that no stay would issue and 
we likewise note that any stay of this order must be sought from 
the United States Supreme Court.

APPENDIX

CHAPTER 37

SEGREGATION OF RACES

Section.
49-3701-49-3704. [Unconstitutional.]
49-3701-49-3703. [Unconstitutional.]

Compiler’s Note. Under the decision of Roy v. Brittain 
(1956), 201 Tenn. 140, 297 S.W.2d 72, the status providing for 
the compulsory separation of races in the field of public educa­
tion are no longer in effect, and therefore these sections have 
been omitted. They read:

49-3701. Interracial schools prohibited.—It shall be unlawful 
for any school, academy, college, or other place of learning to 
allow white and colored persons to attend the same school, 
academy, college, or other place of learning. [Acts 1901, ch. 7, § 
1; Shan., § 6888a37; Code 1932, § 11395.]



— SA-213 —

49-3702. Teaching of mixed classes prohibited.—It shall be 
unlawful for any teacher, professor, or educator in any college, 
academy, or school of learning to allow the white and colored 
races to attend the same school, or for any teacher or educator, 
or other person to instruct or teach both the white and colored 
races in the same class, school, or college building, or in any 
other place or places of learning, or allow or permit the same to 
be done with their knowledge, consent, or procurement. [Acts 
1901, ch. 7, § 2; Shan., § 6888a38; Code § 11396.]

49-3703. Penalty for violations.—Any persons violating any 
of the provisions of this chapter, shall be guilty of a misde­
meanor, and, upon conviction, shall be fined for each offense 
fifty dollars ($50.00), and imprisonment not less than thirty (30) 
days nor more than six (6) months. [Acts 1901, ch. 7, § 3; Shan., 
§ 6888a39; mod. Code 1932, § 11397.]

49-3704. [Unconstitutional.]

Compiler’s Note. This section was held unconstitutional in 
Kelley v. Board of Education (1959), 6 Cir. 270 F.2d 209 and is, 
therefore, omitted. It read:

49-3704. Separate schools authorized.—Boards of education 
of counties, cities and special school districts in this state are 
authorized to provide separate schools for white and negro 
children whose parents, legal custodians or guardians voluntari­
ly elect that such children attend school with members of their 
own race. [Acts 1957, ch. 11, § 1.]



— SA-214

CHAPTER 22—TRAN SPORT ATION 
OF SCHOOL CHILDREN

Section.
49-2201. Power of boards to provide transportation—Use to 

achieve racial balance prohibited.
49-2210. Color and markings of buses.
49-2213. Speed limit.

49-2201. Power of boards to provide transportation—Use to 
achieve racial balance prohibited.—Boards of education many 
provide school transportation facilities for children who live 
over one and one-half (1 Vi) miles by the nearest accessible route 
from the school to which they are assigned by the board of 
education and in which they are enrolled; provided, however, 
that the boards of education may, in their discretion, provide 
school transportation facilities for children who live less than 
one and one-half (U/2 ) miles by the nearest accessible route 
from the school in which they are enrolled, but the county shall 
not be entitled to receive state transportation funds for any stu­
dent, other than physically handicapped children, who live less 
than one and one-half (U/2 ) miles by the nearest accessible route 
from the school in which they are enrolled; provided, that 
nothing in this chapter shall be construed to prevent a board of 
education from transporting physically handicapped children, 
regardless of the distance they live from school, under rules and 
regulations adopted by the state board of education; and pro­
vided further, that said boards shall have power to purchase 
school transportation equipment, employ school transportation 
personnel, and contract for transportation services with persons 
owning equipment, and pay for same out of funds duly 
authorized in the budget approved by the quarterly county 
court; provided further, that said boards in employing school 
transportation personnel and in contracting for transportation 
services with persons owning equipment are hereby authorized



— SA-215 —

to enter into contracts for such services for periods of time as 
long as, but not exceeding, four (4) years from the date of mak­
ing such contracts, it being the purpose of this section to permit 
a reasonable degree of employment security for such school 
transportation personnel.

Provided, however, no board of education shall use or 
authorize the use of any school transportation facilities for the 
purpose of achieving a racial balance or racial imbalance in any 
school by requiring the transportation of any student or pupil 
from one school to another or from one school district 
established for his neighborhood to another. [Acts 1947, ch. 92, 
§ 1; 1949, ch. 233, § 1; C.Supp.1950, § 2495.1 (Williams § 
2495.2); Acts 1957, ch. 10, § 1; 1957, ch. 400, § 1; 1970 (Adj. 
S.), ch. 491, § 1.]

Amendment. The 1970 amendment added the last paragraph 
to this section.

Effective Date. Acts 1970 (Adj. S.), ch. 491, § 2. February 27, 
1970.

[Note that a statute similar to the proviso in the last paragraph 
of the statute above was held unconstitutional by the United 
States Supreme Court. North Carolina State Board of Educa­
tion v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 
(1971).]

APPENDIX B

MEMORANDUM AND ORDER 
(Filed July 21, 1971)

The defendant Metropolitan County Board of Education of 
Nashville and Davidson County, Tennessee, filed two motions, 
to-wit, a motion to set aside the judgment entered in this cause



— SA-216

on July 16, 1970, and a motion to set aside the memorandum 
opinion filed June 28, 1971, which motions are grounded on the 
failure of the Court to comply with Rule 23 of the Federal Rules 
of Civil Procedure.

Apparently these motions were filed without counsel for the 
defendant having made even a casual perusal of the record in 
the consolidated cases.

The history of the consolidated cases reveals:

The first cause of Robert W. kelley, et al. v. Board of Educa­
tion of the City of Nashville, Davidson County, Tennessee, et 
al., Civil No. 2094, was filed on September 23, 1955. This case 
will be hereinafter referred to as the “ first case.”

The case of Henry C. Maxwell, Jr., et al. v. County Board of 
Education of Davidson County, Tennessee, et al., Civil No. 
2956, was filed on September 19, 1960. This case will be 
hereinafter referred to as the “ second case.”

These cases were consolidated by consent order filed 
September 10, 1963.

Rule 23 of the Federal Rules of Civil Procedure as to class ac­
tion was amended, effective July 1, 1966. Prior to the amend­
ment, class actions were referred to as “ spurious” or “ true” 
class actions. Prior to the amendment, the requirements for the 
maintenance and determination of the existence of a proper 
class action were less stringent than those requirements as set 
forth in Rule 23, as amended. Prior to its amendment, Rule 23 
did not require detailed findings and determinations by the 
Court as set forth in subsection (c) of the Rule, as amended.

First Case

By Memorandum filed on January 21, 1957, the Honorable 
William E. Miller determined “ that the rights of the plaintiffs



SA-217 —

and others similarly situated to attend the public schools of the 
City of Nashville without discrimination on account of race are 
recognized and declared, . . . ” Record, Min. Book 19, at 679.

By findings of fact and conclusions of law filed on February 
20, 1957, the Honorable William E. Miller adjudicated that 
Case No. 2094 was “ properly brought as a class action under 
Rule 23(a) of the Federal Rules of Civil Procedure. Title 28 
U .S.C .” Record, Min. Book 19, at 783.

On August 15, 1958, the case was appealed to the Sixth Cir­
cuit Court of Appeals. On July 20, 1959, the Court of Appeals 
affirmed the judgment of the District Court, thereby affirming 
the determination of the Honorable William E. Miller that this 
was'a proper class action.

On September 10, 1963, a consent order was entered in Case 
No. 2094, the first case, and Case No. 2956, the second case, in 
which the parties agreed and stipulated that the functions and 
powers of the defendants Board of Education of the City of 
Nashville and County Board of Education of Davidson County 
were vested in the Metropolitan School System, and the “ Tran- 
sititional Board of Education for the Metropolitan Government 
of Nashville and Davidson County” was substituted as defen­
dant. All orders, judgments, and other proceedings in the first 
case and the second case were made effective as to the 
substituted defendant. There was an express provision that all 
orders, judgments and proceedings entered previously would re­
main in full force and effect, and that none of the rights of the 
parties would be affected or prejudiced.

By order of December 3, 1964, the Metropolitan County 
Board of Education and its board members were made parties 
defendant in lieu of the Transitional Board. Again, there was a 
provision that all orders, judgments and proceedings in both 
cases would reamin in full force and effect and that none of the 
rights of any parties would be affected or prejudiced.



— SA-218

By order entered on October 7, 1968, certain additional par­
ties, including infants and their parents, were added as interven­
ing plaintiffs to have full standing as plaintiffs.

The two cases were again appealed to the Sixth Circuit Court 
of Appeals. The opinion of the Court of Appeals was filed in 
this Court on February 8, 1971.

Second Case

On November 23, 1960, the Honorable William E. Miller ad­
judicated that “ this is a class action brought not only by the 
plaintiffs for their own benefit but also on behalf of all other 
persons similarly situated.” Record, Min. Book 24, at 114.

This case was appealed to the Court of Appeals for the Sixth 
Circuit on February 20, 1961.

The orders in the consolidated cases of September 10, 1963, 
December 3, 1964, and October 7, 1968, noted above also apply 
to this case.

As appears above, the Honorable William E. Miller carefully 
adhered to Rule 23 as it existed at the time of the filing of these 
two cases. The Court of Appeals did not question his deter­
mination, but affirmed the actions which he took in the matter. 
In addition, in the latest mandate to the District Court received 
from the Court of Appeals in February, 1971, this Court was in­
structed to implement the July 16, 1970 opinion of the 
Honorable William E. Miller.

113] This Court does not feel once a class action has been ad­
judicated and the action of the trial court has been reviewed by 
the Court of Appeals, that it is necessary or proper to continue 
to redetermine the standing of the plaintiffs to represent a class. 
The United States Supreme Court in its order implementing the 
amendment to Rule 23 states:



— SA-219

. the foregoing amendments and additions to the 
Rules of Civil Procedure shall take effect on July 1, 1966, 
and shall govern all proceedings in actions then pending 
except to the extent that in the opinion of the Court their 
application in a particular action then pending would not 
be feasible or would work injustice in which event the 
former procedure applies.” *

See also Escott v. Barchris Construction Corp., 283 F.Supp. 643 
(S.D.N.Y.1968); Polakoff v. Delaware Steeplechase and Race 
Assn., 264 F.Supp. 915 (Del. 1966).

This clearly indicates an intent that there should not be a con­
tinuous readjudication of this question in cases where there has 
been a lengthy history of litigation, both in the district and the 
appellate courts. Frankly, this Court feels that it is not feasible 
or practical to have continuous adjudication of such items.

In view of the above, the Court is not required to determine 
(1) whether this question should have been raised prior to the 
adjudication of the cause, and (2) what, if any, effect the alleged 
failure to comply with Rule 23 would have on the right of the 
individual plaintiff children who reside throughout Davidson 
County, Tennessee, to assert their constitutional privilege to at­
tend an integrated school in a unitary school system.

The motions are hereby denied.

L. CLURE MORTON 
United States District Judge

* Paragraph 2, Order of the Supreme Court of the United States, 
February 28, 1966, reporting amendments to the Federal Rules of 
Civil Procedure for the United States District Courts to the United 
States Senate and House of Representatives. This is reported in 15 
L.Ed.2d lxxv.



— SA-220

McCREE, Circuit Judge (concurring).

I agree with the majority opinion on the issues it discusses. 
Nevertheless, I wish to add a few observations concerning our 
reasons for rejecting plaintiffs’ cross-appeal and affirming for 
the present, the District Court’s selection of the HEW plan.

The District Court, in deciding to reject plaintiffs’ plan, 
recognized that under Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1,91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); 
Davis v. School Commissioners of Mobile County, 402 U.S. 33, 
91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); and Green v. County 
School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 
1689, 20 L.Ed.2d 716 (1968), its duty was to select the plan that 
appeared to be the most effective in eradicating the effects of 
past segregation, unless it would be impractical to adopt such a 
plan. The court found that plaintiffs’ plan was “ impractical and 
not feasible’’ because of the costs and transportation problems 
that would result from the inclusion of certain outcounty 
schools in the plan. The court also relied upon the fact that 
plaintiffs’ plan left to the school board the specifics of pupil 
assignment, grade organization, school structuring, and school 
district zoning.

My colleagues and I agree that there is no need at this junc­
ture to hold that the District Court abused its discretion in thus 
preferring the HEW plan over that of plaintiffs. The HEW plan 
promises to accomplish a significant degree of integration, and 
it is a plan that promises realistically to work and to work now. 
Green v. County School Board of New Kent County, supra, 391 
U.S. at 439, 88 S.Ct. 1689, 20 L.Ed.2d 716. Although plaintiffs’ 
plan might have more effectively desegregated the district’s 
schools, its inclusion of outlying schools and its lack of specificity 
rendered it, in the court’s opinion, impractical and unfeasible. 
Since the District Court has retained jurisdiction in order to 
supervise the implementation and effectiveness of the HEW



— SA-221 —

plan, plaintiffs have the option of revising their plan to 
eliminate the defects noted by the court and requesting the court 
to make specific changes in the plan to promote, in a practical 
way, more effective integration. If the court should then find 
that plaintiffs’ plan is “ feasible and pedagogically sound,” 
Robinson v. Shelby County Board of Education, 442 F.2d 255, 
258 (6th Cir.), on remand 330 F.Supp. 837 (W.D.Tenn.1971), 
appeal pending, No. 71-1966 (6th Cir.), it would be required to 
adopt that plan. See Harrington v. Colquitt County Board of 
Education, 460 F.2d 193 (5th Cir. 1972); Monroe v. Board of 
Commissioners of City of Jackson, Tennesse, 453 F.2d 259, 262 
(6th Cir. 1972), cert, filed, 406 U.S. 945, 92 S.Ct. 2045, 32 
L.Ed.2d 333 (1972) (No. 71-1249); Robinson v. Shelby County 
B o*d  of Education, supra; Davis v. School District of City of 
Pontiac, Inc., 443 F.2d 573, 576-577 (6th Cir.), cert, denied, 404 
U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971). In the special cir­
cumstances of this case, therefore, there is no need to remand 
and thereby possibly jeopardize implementation of the first 
desegregation plan ordered into effect in this school district that 
promises, after 17 years of litigation, realistically to work now.

With respect to plaintiffs’ contention that the District Court 
abused its discretion in adopting a plan that places the greater 
burden of desegregation on black children and their parents, I 
observe initially that, although the plan approved by the 
Supreme Court in Swann appears to have contained a provision 
that in some respects resembles one of the features of the HEW 
plan attacked by plaintiffs herein—the pairing and clustering 
feature that requires all children in grades one through four to 
attend suburban schools while all children in grades five and six 
attend the inner-city schools— Swann cannot be read as un­
critically approving any plan employing a similar technique if it 
has an unreasonably disparate racial impact. The issue ap­
parently was not raised in the Supreme Court and the Court did 
not discuss it. Moreover, the District Court in Swann, in ap-



SA-222 —

proving the adoption of this feature of the school board’s plan, 
did so “ only (1) with great reluctance, (2) as a one-year, tem­
porary arrangement, and (3) with the distinct reservation that 
‘one-way bussing’ plans for the years after 1969-70 will not be 
acceptable.” Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 306 F.Supp. 1291, 1298 (W.D.N.C.1969). And, following 
the Supreme Court’s decision in Swann, the District Court re­
jected a revised plan proposed by the school board because, 
among other reasons, the plan continued to place a dispropor­
tionate burden on black children and their parents without 
showing any educational justification therefor. Swann v. 
Charlotte-Mecklenburg Board of Education, 328 F.Supp. 1346, 
1352-1353 (W.D.N.C.1971).

Since I agree, however, that remand is not required at this 
time, and since I wish to make it clear what the majority opinion 
is not holding with respect to this issue, I add the following com­
ments.

Without a compelling justification, adoption of a plan that 
places a greater burden of accomplishing integration on black 
students and their parents is impermissible, whether this be 
phrased in terms of an equal protection violation because the 
plan was the school board’s product, see, e. g., Lee v. Macon 
County Board of Education, 448 F.2d 746, 753-754 (5th Cir. 
1971); Carr v. Montgomery County Board of Education, 429 
F.2d 382, 385 (5th Cir. 1970); Brice v. Landis, 314 F.Supp. 974, 
978-979 (N.D.Cal. 1969), or in terms of an abuse of the court’s 
discretion in fashioning an equitable remedy to rectify the ef­
fects of past injustice. Although adoption of such a plan might 
be justified on the basis of the nature of facilities involved, or 
on practical, administrative considerations, or on the need to 
adopt a temporary expedient to assure at least immediate 
substantial progress toward the creation of a unitary school 
system (see Swann v. Charlotte-Mecklenburg Board of Educa­
tion, supra, 306 F.Supp. at 1298), we cannot determine the



SA-223 —

reason for the District Court’s decision because the court did 
not discuss this issue in its memorandum opinion. Ordinarily, in 
such a case, we would remand for findings and conclusions by 
the District Court. See Gordon v. Jefferson Davis Parish School 
Board, 446 F.2d 266 (5th Cir. 1971) (per curiam).

However, the same considerations that argue against remand 
on the issue of the court’s adoption of a less effective plan are 
persuasive here as well. The integration plan adopted by the 
court has been in operation during the 1971-72 school year, and 
the court has retained jurisdiction of this case to oversee and, if 
necessary, to modify the plan’s implementation. The defendant 
school board has indicated in this court that it intends to seek 
modification on the basis of asserted practical problems that 
have become apparent since the plan was put into effect. Plain­
tiffs have indicated dissatisfaction with the adoption of a plan 
less effective than that proposed by them, and we have indicated 
that they may seek further relief in the District Court. In these 
circumstances, I agree that we should not now disturb the 
District Court’s approval of the HEW plan and possibly en­
courage the kind of delay and inaction that has caused this case 
to pend for 17 years. Plaintiffs may seek modification of the 
court’s order on the ground that the plan places a dispropor­
tionate burden on black children and their parents, and this 
issue can be litigated and determined before the beginning of the 
1972-73 school year. In this way, the disproportionate burden 
asserted by plaintiffs will exist at most for only a short period of 
time and will amount to no more than a transitory phase 
(assuming the absence of sufficient justification for maintaining 
it permanently) in the over-all creation of a unitary school 
system.

It is to be emphasized, nevertheless, that our refusal to take 
affirmative action on this issue at this time results only from the 
peculiar timing, posture, and history of this case. Our opinion



should not be construed in any way as a qualification of the 
principle that a district court has an obligation to endeavor to 
distribute the burden of integration equitably on all races and 
that any deviation from this norm, without a compelling 
justification, is impermissible.

Finally, I observe that the majority opinion does not discuss 
plaintiffs-appellees’ contention that they should be awarded 
double costs and attorneys’ fees because the school board’s ap­
peal is frivolous within the meaning of Fed.R.App.P. 38. Since 
the class action issue obviously has no merit, and since the only 
issue raised by the Board that might have merit has never been 
presented to the District Court, I would award the requested 
double costs and attorneys’ fees. See Coppedge v. Franklin 
County Board of Education, 404 F.2d 1177, 1179-1180 (4th Cir. 
1968); cf. Monroe v. Board of Commissioners of City of 
Jackson, Tennessee, supra, 453 F.2d at 262-263. The long 
history of this litigation would, in my opinion, make such an 
award particularly appropriate. Cf. Clark v. Board of Educa­
tion of Little Rock School District, 449 F.2d 493, 499 (8th Cir. 
1971), cert, denied, 405 U.S. 936, 92 S.Ct. 954, 30 L.Ed.2d 812.

No. 72-294. L. Goldstein’s Sons, Inc., petitioner, v Trio Process 
Corporation

409 US 997, 34 L Ed 2d 262, 93 S Ct 319.

November 6, 1972. Motion of the Ford Motor Company for 
leave to file a brief, as amicus curiae, granted. Petition for writ 
of certiorari to the United States Court of Appeals for the Third 
Circuit denied.

Same case below, 461 F2d 66.

— SA-224 —



No. 72-313. Metropolitan County Board of Education of Nash­
ville and Davidson County, Tennessee, C. R. Dorrier, 
Chairman, et al., petitioners, v Robert W. Kelley et al.

409 US 1001, 34 L Ed 2d 262, 93 S Ct 322.

November 6, 1972. Petition for writ of certiorari to the 
United States Court of Appeals for the Sixth Circuit denied. 
Mr. Justice Marshall took no part in the consideration or deci­
sion of this petition.

Same case below, 463 F2d 732.

— SA-225 —