Goss v. Knoxville, TN Board of Education Petition for Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    Bnpmm CUmtrt nf %  Uniteb States
O c to beb  T e e m , 1973 

No. 73-...........

I n  th e

J o s e p h in e  G oss , et al.,

vs.
Petitioners,

T h e  B oard of E d u c a t io n  o f  t h e  C it y  
o f  K n o x v il l e , T e n n e s s e e , et al.

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

FOR THE SIXTH CIRCUIT

C a r l  A. C o w a n

2212 Vine Avenue 
Knoxville, Tennessee 37915

A v o n  N. W il l ia m s , J r .
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J a c k  G r e e n b e r g  
J a m e s  M. N a b r it , II I  
N o r m a n  J. C h a c h k in  
S y lv ia  D r e w

10 Columbus Circle
New York, New York 10019

Attorneys for Petitioners



TABLE OF CONTENTS

PAGE

Opinions B elow ................................   1

Jurisdiction .......      2

Questions Presented ............................................................  2

Constitutional and Statutory Provisions Involved .......  3

Statement ...................      3

R ea so n s  eo r  G r a n t in g  t h e  W r it

I  The Courts Below Have Decided Issues of 
Great Importance in School Desegregation 
Cases in a Manner Which Conflicts With De­
cisions of This Court and of the Courts of
Appeals .................................................................. 7

II  The Court, of Appeals Had No Basis in Law 
or Pact, for Rejecting the Desegregation Tech­
niques Approved by This Court in Swann .... 13

C o n c l u s io n  ................................................................................................  17

A p p e n d ix —

Opinion of the Court of A ppeals.............................  la

Opinion of the District Court ..... ............ ................  7a

T a b le  oe A u t h o r it ie s

Cases:

Alexander v. Holmes County Bd. of Education, 396 
U.S. 19 (1969) .................................................................. 5



11

Cisneros v. Corpus Christi Independent School Dist.,
467 F.2d 142 (5th Cir. 1972), cert, denied,----- U.S
-----  (1973) ............. ....... ............................................ .....  ion

Clark v. Board of Educ. of Little Rock, 449 F.2d 493 
(8th Cir. 1971), cert, denied, 405 U.S. 936 (1972) .... lOn 

Clark v. Board of Educ. of Little Rock, 426 F.2d 1035 
(8th Cir. 1970), cert, denied, 402 U.S. 952 (1971) .... lOn

Davis v. Board of School Comm’rs of Mobile, 402 U.S.
33 (1971) ....... ............. .............................................. io, i i ,  14

Dowell v. Board of Education of Oklahoma City, 465 
F.2d 1012 (10th Cir.), cert, denied, 409 U.S. 1041 
(1972) .............................................................................  10n

Goss v. Board of Educ., 403 U.S. 956 (1971) ..............  5n
Goss v. Board of Educ., 373 U.S. 683 (1963) ____  5,12
Goss v. Board of Educ., 444 F.2d 632 (6th Cir. 1971) .... 5n 
Goss v. Board of Educ., 406 F.2d 1183 (6th Cir. 1969) .. 4n 
Goss v. Board of Educ., 301 F.2d 164 (6th Cir. 1962) .... 4n 
Goss v. Board of Educ., 340 F. Supp. 711 (E.D. Tenn.

1972) .................................................................................. 6n
Goss v. Board of Educ., 320 F. Supp. 549 (E.D. Tenn.

1970) .................................................................................... 5n
Goss v. Board of Educ., 270 F. Supp. 903 (E.D. Tenn.

1967) ..................................................     5n
Goss v. Board of Educ., 186 F. Supp. 559 (E.D Tenn.

I960) ..............................................      4n

Henry v. Clarksdale Municipal Separate School Dist.,
433 F.2d 387 (5th Cir. 1970) .........................................   I6n

Henry v. Clarksdale Municipal Separate School Dist.,
409 F.2d 682 (5th Cir.), cert, denied, 396 U.S. 940 
(1969) .................................................................................  n

Kelley v. Metropolitan County Bd. of Educ., 463 F.2d 
732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972) .... 12

PAGE



Ill

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert, 
denied,----- U .S .------- (1973) .... ........................... ......  lOn

McSwain v. County Bd. of Educ., 104 F. Supp. 861
(E.D. Tenn. 1952) .............................. ............... ...........  16n

Medley v. School Bd. of Danville, 4th Cir. No. 72-2373 
(August 3, 1973) ...........................................................  8

Northcross v. Board of Educ. of Memphis, 397 TJ.S.
232 (1970) ...................... ................................. ............. . 13

Northcross v. Board of Educ. of Memphis, 446 F.2d
890 (6th Cir. 1972), cert, denied, — — U.S. -----
(1973), vacated and remanded on other grounds,
—  U.S. -----  (1973) ............................. ............... . 12

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 
U.S. 1 (1971) ....... ..........................................................  3,5

Thompson v. School Bd. of Newport News, 465 F.2d 
83 (4th Cir. 1972), cert, denied,----- U .S .------ (1973) 12

United States v. Board of School Comm’rs of Indianap­
olis, 474 F.2d 81 (7th Cir. 1973) ..... ..... .................. . lOn

United States v. Greenwood Municipal Separate 
School Dist., 406 F.2d 1086 (5th Cir.), cert, denied,
395 U.S. 907 (1969) ..... ....................................................  12

United States v. Indianola Municipal Separate School
Dist., 410 F.2d 626 (5th Cir. 1969), cert, denied,
396 U.S. 1011 (1970) ................... ...................................  12

Other Authorities:

Memphis Press-Scimitar, March 31, 1973 (Final Home 
Edition) ............................ .................................. ........ . 13n

PAGE



I n' th e

i>upmtt£ (Emtrt of %  lotted States
O c to ber  T e r m , 1973  

No. 73-...........

J o s e p h in e  G oss, et al.,

vs.
Petitioners,

T h e  B oard o f  E d u c a t io n  o f  t h e  C it y  
o f  K n o x v il h e , T e n n e s s e e , et al.

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

FOR THE SIXTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari 
be issued to review the judgment and decision of the United 
States Court of Appeals for the Sixth Circuit, entered in 
the above-captioned matter on July 18, 1973.

Opinions Below

The per curiam opinion of the United States Court of 
Appeals for the Sixth Circuit, and the concurring opinion 
of Judges Weick and Miller, are unreported and are re­
printed at pp. la-6a of the Appendix to this Petition. The 
opinion of the United States District Court for the Eastern 
District of Tennessee is reported at 340 F. Supp. 711, and 
is found in the Appendix to this Petition at pp. 7a-25a.

Prior reported opinions in this case are as follows: 
186 F. Supp. 559 (E.D. Tenn. 1960), modified and aff’d,



2

301 F.2d 164 (6th Cir. 1962), rev’d in part, 373 U.S. 683 
(1963); 305 F.2d 523 (6th Cir. 1962); 270 F. Supp. 903 
(E.D. Tenn. 1967), aff’d 406 F.2d 1183 (6th Cir. 1969); 
320 F. Supp. 549 (E.D. Tenn. 1970), remanded, 444 F.2d 
632 (6th Cir.), immediate relief denied with instructions to 
issue mandate, 403 U.S. 956 (1971).

Ju risd ic tion

The opinion and judgment of the Court of Appeals were 
entered July 18, 1973. The jurisdiction of this Court is 
invoked pursuant to 28 U.S.C. §1254(1).

Questions Presented

1. Does a dual school system convert to unitary status 
by taking “some” affirmative action to desegregate “some” 
of its schools, while failing to take “all necessary [and 
feasible] steps” to eliminate schools of racial compositions 
substantially disproportionate to that of the entire system?

2. May a district court permit a dual school system, 
which instituted “neighborhood school zones” virtually 
identical to its prior dual zoning as a means of desegrega­
tion and which therefore remains substantially segregated, 
to maintain those zones on the ground that redrawing them 
to increase desegregation would require pupil transporta­
tion which the school district has not heretofore provided?

3. Do natural or man-made barriers, such as ridges, 
highways, and railroad tracks, which in large measure co­
incide with racially segregated housing patterns, relieve a



3

school board of its constitutional obligation to desegregate 
schools which remain virtually all-black and schools whose 
racial compositions are substantially disproportionate to 
that of the city’s total school population!

4. In  a dual school system which is 18% black, and which 
is under a constitutional mandate to convert to a unitary 
system, may the continued maintenance of nine heavily 
black schools, which together enroll 59% of all black pupils 
in the district, be permitted consistent with this Court’s 
language in Swarm v. Charlotte-Mecklenburg Bd. of Educ., 
402 U.S. 1, 26 (1971) that under certain circumstances, 
“some small number” of one-race schools is constitutionally 
permissible I

Constitutional and Statutory Provisions Involved

This case involves the application of the Equal Protec­
tion Clause of the Fourteenth Amendment to the Constitu­
tion of the United States, which provides, in pertinent p a r t :

. . . nor shall any State . . . deny to any person within 
its jurisdiction the equal protection of the laws.

Statement

This is the third appearance of the Knoxville, Tennessee 
school desegregation case before this Court. See 373 U.S. 
683 (1963); 403 U.S. 956 (1971). Although a detailed his­
tory of the proceedings in this lawsuit is impracticable 
here, we sketch the major events below:

This litigation commenced in 1959, challenging Knox­
ville’s classic dual school system “planned and operated in 
conformity with the principle of segregation” (Answer to



4

Complaint).1 In 1960, the district court approved a schedule 
calling for grade-a-year transition from dual overlapping 
to single zones, subject to a minority-to-majority transfer 
provision.2 In  1962 the Court of Appeals for the Sixth 
Circuit ordered the pace of the plan accelerated but re­
jected challenges to the transfer feature.3 The following 
year, this Court granted review on the transfer issue alone 
and held it was an unacceptable part of a desegregation 
plan.4 A subsequent appeal to the Sixth Circuit from the 
district court’s order on remand was cut short when the 
school board’s counsel told the Court of Appeals that all 
overlapping zones and all racially discriminatory practices 
would be eliminated by the 1964-65 school year.6

In 1967 the plaintiffs filed a Motion for Further Belief 
which alleged that the Knoxville public schools were still 
segregated. The district court denied relief, approving 
the existing transfer regulations and refusing to examine 
the attendance zone lines on the ground that they had been 
approved implicitly by the Sixth Circuit in 1962 and by 
this Court in 1963.6 Despite continuing and substantial 
school segregation in Knoxville, the Court of Appeals af­
firmed this ruling in 1969.7 I t said that the existence of

1 14,425 A. 30 [Citations in the form “—A.—” refer to the var­
ious reproduced appendices in connection with appeals before the 
Sixth Circuit in this cause; each is identified by the number of 
the case in the Court of Appeals. Citations in the form “—a” refer 
to the appendices to this Petition.]

2186 F. Supp. 559 (E.D. Tenn. 1960).
3 301 F.2d 164 (6th Cir. 1962).
4373 U.S. 683 (1963).
6 See 270 F. Supp., at 908.
6 270 F. Supp., at 913.
7 406 F.2d 1183 (6th Cir. 1969).



5

severely racially imbalanced schools in a historic dual 
system did not establish the need for further corrective 
action, but remanded the case for retention of jurisdiction 
with the suggestion that the school board consider changes 
to promote integration.

Following this Court’s decision in Alexander v. Holmes 
County Bd. of Educ., 396 U.S. 19 (1969), plaintiffs again 
filed pleadings in the trial court seeking to end segregation 
in the Knoxville public schools. In 1970 the district court 
ruled that, except for a few problems,8 Knoxville had a 
“unitary school system.” 9 While plaintiffs’ appeal from 
this decision was before the Sixth Circuit, this Court de­
cided Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 
U.S. 1 (1971). The Knoxville case was sent back to the 
district court for reconsideration in light of Swann-, the 
Court of Appeals declined to examine the record or to pass 
upon plaintiffs’ contentions although it did instruct the 
district court that immediate action was not required.10 
Plaintiffs sought extraordinary relief at the close of the 
1970 Term from this Court, which was denied. However, 
this Court instructed that the Sixth Circuit’s mandate be 
issued forthwith and that constitutionally required changes 
could not be delayed, citing Alexander, supra}1

Once again, extensive hearings before the district court 
were held. Again, relief was denied by the district court, 
■which ruled in 1972 that Knoxville’s “neighborhood” school

8 Loose administration of transfer rules which defeated integra­
tion, and continuation of unique grade organization and attendance 
zoning patterns at an adjacent white high school and black junior 
high school.

9 320 F. Supp. 549 (E.I). Tenn. 1970).
10 444 F.2d 632 (6th Cir. 1971).
11 403 U.S. 956 (1971).



6

zones were “reasonably drawn” even if they did not achieve 
desegregation, and that the system was therefore unitary.12 
The court accepted modest changes in pupil assignments 
proposed by the school board and rejected a proposal of­
fered by plaintiffs’ educational expert witness to desegre­
gate the entire system by using the same tools approved 
by this Court in Swann, supra (contiguous and non-con- 
tiguous pairing, zoning and clustering, with pupil transpor­
tation).

Under the school board’s plan, in 1972-73 there were 
forty virtually all-white, and nine more-than-64%-black 
schools in Knoxville. 59% of all Knoxville black students 
were in these nine black schools. This result was approved 
by the Court of Appeals en banc as being within the equi­
table remedial discretion of the district court. Although the 
trial court had made no such finding, the appellate body 
ruled that geographic and man-made features, such as rail­
road tracks and highways (“matters other than ‘the acci­
dent or circumstance of neighborhood’ ” ) prevented imple­
mentation of any more effective desegregation plan. The 
plaintiffs now seek review of that decision.

12 340 F. Supp. 711 (E.D. Tenn. 1972).



7

REASONS FOR GRANTING THE WRIT 

I

The Courts Below Have Decided Issues of Great Im ­
portance in  School Desegregation Cases in  a M anner 
W hich Conflicts W ith Decisions of This Court and of 
the Courts of Appeals.

During the 1961-62 school year, shortly after the com­
mencement of this lawsuit, Knoxville operated nine all­
black schools; its total school population was nearly 23% 
black (72-1766 A. 1518-19). In 1971-72, prior to the district 
court order affirmed below, only 18% of Knoxville’s stu­
dents were black. But seven virtually all-black schools 
(enrolling more than 51% of all black pupils) remained, 
and three other facilities were 62%, 69% and 86% black, 
respectively. Following the district court’s reconsideration 
of the case in light of Swann, supra, there were in Knox­
ville in 1972-7313 three schools over 97% black, two 86% 
black schools, and three others between 64% and 72% black. 
59% of all black students in the system attended this group 
of schools. Forty other facilities were virtually all white.

Under any definition, these are schools whose racial com­
positions are very substantially disproportionate to that 
of the entire system. Thus, despite the Court of Appeals’ 
attempt, to limit its holding to the particular facts of this 
case (4a), the impact of the decision is far reaching. In­
evitably, judicial acceptance of a “desegregation” plan

13 The plan approved by the district court (72-1766 A. 1532-34) 
did not contain projections of enrollments, and the district court’s 
order (id. at 1672) did not include a reporting provision. The 
1972-73 enrollment figures given in this Petition are taken from 
the school system’s October 31, 1972 report (Forms OS/CR 101, 
OS/CR 102) to the United States Department of Health, Educa­
tion, and Welfare. Counsel for the school board has declined to 
make available to Petitioners the current (1973-74) school enroll­
ments.



8

which, fails to employ any pupil transportation, noncon­
tiguous zoning or pairing, and which leaves the majority of 
black students in segregated black schools, conflicts with 
controlling* decisions of this Court and with holdings in 
similar cases by other Courts of Appeals. Only review by 
this Court can eliminate the uncertainty and doubt about 
the remedial obligations of formerly dual school systems 
created by the decisions below.

The district court and the Court of Appeals reached the 
conclusion that Knoxville was not required to employ the 
techniques of noncontiguous zoning and pairing, and pupil 
transportation, to further desegregate its schools, on dif­
ferent grounds. The rationale of each court is irrecon­
cilably in conflict with school case decisions of this and 
other Courts.

The district court viewed plaintiffs’ attempts to eliminate 
the remaining racially disproportionate, identifiable schools 
in Knoxville as efforts to achieve “racial balance.” 14 I t 
also held that “neighborhood” zoning was a sufficient de­
segregation device even though such zoning, superimposed 
upon the city’s residential segregation, inevitably produced 
racially disproportionate schools.16 In both respects, the 
district court’s reasoning clashes with Swann, As the Court 
of Appeals for the Fourth Circuit recently put it (Medley 
v. School Bd. of Danville, 4th Cir. No. 72-2373 [August 3, 
1973], slip op. at pp. 6-8):

14 “The entire thrust of plaintiffs’ evidence and argument is to 
the effect that the Constitution requires defendant to create and 
maintain a nearly identical racial balance in each of its schools ir­
respective of residential patterns. Thus, the case having been re­
manded for reconsideration in light of Swann, the critical question 
is whether Swann requires such racial mixtures.” (340 F  Supp 
at 727-28; 23a-24a).

16 “Knoxville’s residential segregation has contributed ‘to dispro­
portionate racial concentrations in some schools,’ but this is not 
the fault of the School Board. We do not interpret Swann as in­
validating the neighborhood pupil assignment system.” (340 F. 
Supp., at 729; 25a).



9

. . . [F]orty-two per cent (734) of the city’s 1754 
black elementary school children will be enrolled in 
two schools with black enrollments of eighty-nine per 
cent and ninety-one per cent, respectively. Addition­
ally, eleven per cent (210) of the black elementary 
school population will attend five schools with black 
enrollments of fourteen per cent or less. Counsel for 
the school board suggest that the plaintiffs’ reliance 
upon the foregoing statistics in their challenge of the 
plan is, in effect, an insistence that each school should 
m irror the racial composition of the entire system.

On the record in this case we do not find this charac­
terization of the plaintiffs’ position to be a valid one... .

In the light of the history of state-enforced segregation 
in the Danville schools, the marked residual disparity 
in the racial balance of the schools under the plan of 
the District Court strongly suggests that the plan is 
ineffective to attain an acceptable degree of realistic 
desegregation.

The district court in this case, however, never applied 
the Swann presumption against substantially dispropor­
tionate schools; it was satisfied that no black children were 
assigned to 100%-black facilities, and it characterized even 
schools with only one white student enrolled as “inte­
grated.” See 340 F. Supp., at 717; 13a.16

16 In 1971-72, the seven virtually all-black schools had the fol­
lowing enrollments (72-1766 A. 1518-19) :

Black Students White Students
Austin-East 693 4
Cansler 231 4
Eastport 442 3
Green 411 1
Maynard 288 10
Sam Hill 280 8
Vine 619

Compare 340 F. Supp., at 717; 13a.
2



10

The district court’s effort to validate “neighborhood 
school” zone lines because they were “reasonably drawn” 
(340 F. Supp., at 718; 14a)—even though they did not 
accomplish desegregation—also is clearly in conflict with 
Swann. The extensive record in this cause amply docu­
ments the impact of the school board’s school construction, 
transfer, faculty and pupil assignment policies over the 
years. The present zone lines, for example, are nearly 
identical to the dual overlapping boundaries the system 
used before this suit was commenced (72-1766 A. 89-102). 
And none of the schools constructed in Knoxville between 
1960 and 1972 opened with an enrollment less than 90% 
of one race. As this Court stated in responding to a sim­
ilar showing in Swann, “ [d] esegregation plans cannot be 
limited to the walk-in school.” 402 U.S. at 30.17

The grounds for affirmance advanced by the Court of 
Appeals likewise have been rejected in Davis v. Board of 
School Comm’rs of Mobile, 402 U.S. 33 (1971), and many 
lower court cases. The day is long past when natural and 
artificial boundaries such as highways, railroad yards, and 
rivers—which in this and other cases coincide with the 
boundaries of racially homogeneous areas of a district18— 
can properly be held to prevent constitutionally required

17 Some of the lower court decisions which have properly inter­
preted Swann, include: Kelly v. Guinn, 456 F.2d 100 (9th Cir.
1972), cert, denied, -----  U.S. ------ (1973) ; Dowell v. Board of
Educ. of Oklahoma City, 465 F.2d 1012 (10th Cir.), cert, denied, 
409 U.S. 1041 (1972) ; Cisneros v. Corpus Christi Independent
School Dist., 467 F.2d 142 (5th Cir. 1972), cert, denied,----- - U.S.
------  (1973); Clark v. Board of Educ. of Little Bock, 449 F.2d 493
(8th Cir. 1971), cert, denied, 405 U.S. 936 (1972); cf. id., 426 F.2d 
1035 (8th Cir. 1970), cert, denied, 402 U.S. 952 (1971); and United 
States v. Board of School Comm’rs of Indianapolis, 474 F.2d 81 
(7th Cir. 1973).

18 See, e.g., 72-1766 A. 336-37.



11

desegregation. Again, the summary provided by the Fourth 
Circuit in the recent Danville case is instructive:

The nub of the problem in the Danville system is, of 
course, the Dan River just as Interstate 65 was the 
divisive factor confronting the Court in Davis v. School 
Comm’rs of Mobile County, 402 U.S. 33 (1971). There, 
the interstate highway divided the metropolitan area 
of Mobile into definitive eastern and western sec­
tions. . . . The elementary school plan approved by 
the Court of Appeals did not provide for any com­
bination of the schools on the eastern side with the 
predominantly white schools of the western section. . . .

The situation in Danville is strikingly parallel to 
Davis. There are seven elementary schools on the 
north side of the river with a student population which 
is eighty-seven per cent white and thirteen per cent 
black. There are also seven elementary schools on the 
south side of the river with an enrollment which is 
fifty-four per cent white and forty-six per cent black. 
The over-all population of elementary students in the 
system is sixty-nine per cent white and thirty-one 
per cent black. In the light of these statistics we are 
of the opinion that the District Court fell into the 
same error as the lower court in Davis in formulating 
a plan which treated the two sections of the city in 
isolation one from the other and which resulted in a 
number of schools which are racially identifiable when 
measured by any reasonable gauge. . . . (slip op. at
pp. 10-11).

Many other cases have required the affirmative disre­
garding of natural or other boundaries in order to effec­
tively dismantle dual school systems. E.g., Henry v. Clarlcs- 
dale Municipal Separate School Dist., 409 F.2d 682 (5th 
Cir.), cert, denied, 396 U.S. 940 (1969) (river, railroad



12

track s); United States v. Greenwood Municipal Separate 
School Dist., 406 F.2d 1086 (5tli Cir.), cert, denied, 395 
U.S. 907 (1969) (river); United States v. Indianola Mu­
nicipal Separate School Dist., 410 F.2d 626 (5th Cir. 1969), 
cert, denied, 396 U.S. 1011 (1970) (river, railroad tracks). 
A judgment that such topographical features in Knoxville 
are such overwhelming barriers as to make any additional 
desegregation absolutely impossible must rest upon far 
more specific findings than appear in the opinion of the 
district court. Cf. Thompson v. School Bd. of Newport
News, 465 F.2d 83 (4th Cir. 1972), cert, denied,----- - U.S.
----- - (1973); Medley v. School Bd. of Danville, supra.

This Court over ten years ago rejected a plan from this 
school system “of which racial segregation [was] the in­
evitable consequence,” Goss v. Board of Educ., 373 U.S. 
683, 689 (1963). Yet the courts below have allowed the 
superimposition of “neighborhood” zone lines upon a his­
toric pattern of racial segregation in housing which existed 
when this suit was brought (340 F. Supp., at 716; 12a), 
with the equally inevitable resulting school segregation. 
This is inconsistent not just with Swann and rulings of 
other Courts of Appeals, but (notwithstanding the Court’s 
disclaimer) with the Sixth Circuit’s own decisions such as 
Kelley v. Metropolitan County Bd. of Educ., 463 F.2d 732 
(6th Cir.), cert, denied, 409 U.S. 1001 (1972) and North- 
cross v. Board of Educ. of Memphis, 466 F.2d 890 (6th Cir. 
1972), cert, denied, ■----- U .S .------- (1973), vacated and re­
manded on other grounds, —------ — U .S .------ (1973).18 If

18 The nature of the problem is accurately reflected in a Memphis, 
Tennessee newspaper editorial, which stated in part:

At a time when Memphis is getting set for a federal court 
order that will mean additional school busing next fall, Knox­
ville has received the news that it will have no busing. . . .
In effect, the neighborhood school system survives in the East 
Tennessee city. . . .
But in both cases the issue was argued before the same appel­
late court. For Knoxville the Circuit Court agreed that busing



13

pervasive and long-standing residential segregation, or 
hills, railroads and traffic congestion, so completely vitiate 
the mandate of the Equal Protection Clause, then this 
Court’s painstaking attempt in Swann to elucidate prin­
ciples of general applicability was in vain.

II

The Court of Appeals Had No Basis, in  Law or* in 
Fact, fo r Rejecting the Desegregation Techniques Ap­
proved by This Court in  Swann.

The last time a school desegregation decision from the 
Sixth Circuit was reviewed here on its merits, Northcross 
v. Board of Educ. of Memphis, 397 U.S. 232 (1970), this 
Conrt found that the Court of Appeals had improperly 
substituted its own judgment for that of the district court 
when it declared the Memphis system to be “unitary.” A 
similar process took place when this case was reviewed 
below.

As noted above, the district court rejected plaintiffs’ 
motions for further school segregation in Knoxville on the 
basis of flawed legal reasoning by which the court concluded 
that the plaintiffs sought a “racial balancing” not required 
by Swann, and that Knoxville’s zoning practices were 
constitutionally permissible, even though they left schools

is “impractical.” For Memphis, the court ordered plans for 
busing to proceed.

The differences between Memphis and Knoxville as to popula­
tion and school enrollments naturally present different prob­
lems before different judges.
But principles don’t change and neither does the Constitution, 
which leaves us wondering why busing has been ruled “im­
practical” in one city and necessary in another.

(Memphis Press- Scimitar, March 31, 1973 [Final Home Edition], 
p. 4).



14

of disproportionate racial composition, since the attendance 
areas were “reasonably drawn.” The Court of Appeals, 
however, affirmed the district court’s judgment on an en­
tirely different basis.

The reviewing court said that any further desegregation 
had been proved completely impossible as a physical prac­
ticality :

Furthermore, the appellee presented evidence concern­
ing the location of highways and railroad yards in 
relation to prominent topographical features, matters 
other than “the accident or circumstance of neighbor­
hood,” from which the Court was justified in finding 
that no plan involving the transportation of pupils 
between non-contiguous zones in order to further im­
prove the racial mix within the system would be fea­
sible at this time. (3a-4a).

The statement cannot be supported on this record.

In the first place, the district court never made any such 
finding. Its opinion does contain a lengthy description of 
the City of Knoxville (340 F. Supp., at 713-14; 9a-10a), 
based mostly on the trial court’s personal observation 
rather than upon the record. But the only finding to which 
the trial court comes is “that the geography in Knoxville 
is substantially more complex than that found in Davis v. 
School Comm’rs of Mobile County, 402 U.S. 33 (1971).” 
Given the trial court’s approach to the question whether 
any further desegregation was legally required (see pp. 
8-10 supra), of course there was no reason for the court 
to reach issues regarding practicalities of particular 
remedies.

Furthermore, there is simply no evidence in this record 
from which the district court could have made the sort of



15

judgment described by the Court of Appeals. The use of 
pupil transportation as an integral part of a desegregation 
plan is as feasible in Knoxville as it was in Charlotte,20 
Mobile,21 Nashville,22 or Memphis.23 Over 6000 Knoxville 
pupils were transported to classes by school bus in 1971-72 
(72-1766 A. 723). The only impracticably of pupil busing 
for desegregation in Knoxville is the school board’s re­
sistance to it. Plaintiffs’ educational expert witness pre­
pared a plan which, by using pupil transportation and non­
contiguous zoning and pairing, desegregated every Knox­
ville school (black enrollments would vary from 8% to 
39%). But the Board instructed the expert it retained not 
to use busing—and even rejected rezoning proposals, which 
he had recommended to increase desegregation, which did 
not call for busing (72-1766 A. 407, 585-86).

The focus of the school board’s defense in the trial court 
was its claim of financial inability to implement an effec­
tive desegregation plan requiring pupil transportation—a 
claim held legally insufficient by the Court of Appeals (4a).

By resting its holding upon factual findings which the 
district court did not make,24 and which the record herein

20 Swann, supra.
21 Davis, supra.
22 Kelley, supra.
23 Northcross, supra, 466 F.2d 890.
24 It is interesting to observe that in 1952 the same district judge 

found the busing of black students from another school system into 
Knoxville to attend a [still] all-black school not merely feasible, 
but desirable:

. . .  In spite of the extra effort and extra expense involved, 
the State of Tennessee through its servants, the Anderson 
County defendants, is not only trying, but is succeeding in 
its effort, to furnish these Negro students educational advan­
tages equal to those furnished to white students. The riding 
of a bus by the student plaintiffs is a small contribution upon



16

will not support, the Court of Appeals makes a mockery 
of the “equitable remedial discretion” which it purports 
to uphold (5a). Surely this Court in Swann, supra, did 
not mean to vest in federal courts the discretion to deny 
substantive constitutional rights by approving utterly in­
adequate remedies.25 Surely the breadth of discretion re­
affirmed in Swann does not justify a finding that a school 
district which transports 6000 children to segregated 
schools cannot bus a single additional pupil to bring about 
desegregation.

their part and that of their parents toward the success of this 
effort, too small to be regarded as a denial of constitutional 
rights.

(McSwain v. County Bd. of Educ., 104 F. Supp. 861, 870-71 [E.D. 
Tenn. 1952]). As the Fifth Circuit has aptly put it,

Barriers which did not prevent enforced segregation in the 
past will not be held to prevent conversion to a full unitary 
system.

(Henry v. Clarksdale Municipal Separate School Dist., 433 F.2d 
387, 394 [5th Cir. 1970]).

26 The Court of Appeals implies that the black schools in Knox­
ville are only “a small number . . . [and do not indicate] that a 
dual system exists” (3a). This overlooks the fact of Knoxville’s 
small black population, and the fact that even under the old dual 
system, there were only nine all-black schools. There are still n in e 
schools of substantially disproportionately black composition in the 
Knoxville system.



17

CONCLUSION

For the foregoing reasons, Petitioners respectfully pray 
that the writ of certiorari he granted.

Respectfully submitted,

Ga e l  A . C o w a n

2212 Vine Avenue 
Knoxville, Tennessee 37915

A v o n  N. W il l ia m s , J e .
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J a c k  G r e e n b e e g  
J a m e s  M. N a b e it , II I  
N o e m a n  J .  C h a c h k in  
S y lv ia  D e e w

10 Columbus Circle
New York, New York 10019

Attorneys for Petitioners



APPENDIX



O pin ion  o f  the Court o f  Appeals

Nos. 721766, - 1767

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Josephine Goss, et al.,
Plaintiffs-Appellants,
v.

The Boabd of Education of the 
City of Knoxville, Tennessee,
ET. AL.,

Defendants-Appellees.

A p p e a l  from the 
United States District 
Court for the Eastern 
District of Tennessee.

Decided and Filed July 18, 1973.

Before: Phillips, Chief Judge; W eick, Edwards, Cele- 
brezze, Peck, McCree, Miller and L ively, Circuit Judges.

Phillips, C. J., Edwards, Celebrezze, Peck, McCree and 
Lively, JJ., joined in the opinion of the Court. Miller, J., 
(p. 6) filed a separate concurring opinion in which Weick, 
J., joined.

Per Curiam. This appeal was heard by a panel of the 
Court on February 12, 1973 and affirmed with a per curiam 
opinion filed on March 29, 1973. Appellants’ petition for re­
hearing was granted, and a rehearing in banc was held, with­
out further oral arguments, on June 6, 1973. Under Rule 3(b) 
of this Court, the previous opinion and judgment were va­
cated.

The history of this case, which has now been in litigation 
for more than thirteen years, may be found in the District 
Court’s opinion. See Goss v. Board of Education, 340 F. Supp.

la



711 (E.D. Term. 1972). When it was last before this Court, 
the case was remanded “for further proceedings consistent 
with Swann v. Charlotte-Mecklenburg, 402 U.S. 1 and other 
relevant Supreme Court opinions announced on April 20, 
1971.” Goss v. Board of Education, 444 F.2d 632, 640 (6th Cir. 
1971). In remanding we declined to set a timetable within 
which Knoxville must conform to what is directed by these 
Supreme Court opinions, and noted that —

Swann (1971) fixes no fromulae for what must be done 
or what will be acceptable in efforts to arrive at a better 
racial mix in the schools. It does, however, lay on 
school authorities the duty to take some affirmative ac­
tion toward improvement. While the existence of some 
all black or all white schools is not struck down as per se 
intolerable, school authorities will have to justify their 
continuance by something more than the accident or 
circumstance of neighborhood. Consideration of pairing 
of school zones, contiguous or non-contiguous, should be 
given; arrangement of new construction so as to further 
desegregation will be a legitimate objective, not to the 
detriment, however, of the discharge of school authorities’ 
total and overriding responsibilities. 444 F.2d at 638.

Following remand, an evidentiary hearing was held. In the 
summer of 1971, on the basis of consultation with Dr. Charles 
Trotter, a professional educator employed as Director of the 
University of Tennessee School Planning Lab, the Knoxville 
Board of Education made a number of changes in its de­
segregation plan. Among other revisions, the privilege of stu­
dent transfer was severely restricted, new school pairings 
and zone adjustments were made and election of minority 
cheerleaders was assured. The amendments also provided for 
simultaneous closing of Cansler, a predominantly black ele­
mentary school, and Moses, a predominantly white elementary 
school. Dr. Trotter testified in support of this plan and in­
troduced a pupil locator map which had been constructed by 
the Board of Education. The plaintiffs presented a plan pre­

2a

Opinion of the Court of Appeals



pared by Dr. Michael Stolee, Associate Dean of the Univer­
sity of Miami (Florida) School of Education. Dr. Stolee testi­
fied in support of this plan. The District Court held that 
“Knoxville is in compliance with Swann.” We affirm this 
holding and remand for the limited purpose hereafter noted.

The District Court has complied with the directions of this 
Court as contained in the opinion of Judge O’Sullivan in 444 
F.2d 632 (6th Cir. 1971). The situation before Judge Taylor 
upon remand from this Court was quite different from that 
faced by Judge McMillan in Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971). In this case the Dis­
trict Judge had two plans presented to him for further de­
segregation of the Knoxville School system. As his opinion 
demonstrates, there were a number of reasons for giving less 
weight to the plan offered by the plaintiffs than to the one 
offered by the Board of Education. As trier of the facts it was 
his responsibility to make judgments on the weight of evi­
dence and credibility of the various witnesses.

While it is true that some schools in the Knoxville system 
will remain identifiably black or white on the basis of pupil 
enrollment, this is largely the result of several concentrations 
of blacks in the area of East Knoxville. In Swann the Su­
preme Court recognized that there are frequently concentra­
tions of minority groups in one or more parts of a metropolitan 
area and the existence of a small number of racially identifi­
able schools in these areas is not, in and of itself, a sign that a 
dual system exists.

The school authorities of Knoxville have taken affirmative 
actions to improve the racial mix of the schools, as required 
by our previous decision. Furthermore, the appellee pre­
sented evidence concerning the location of highways and 
railroad yards in relation to prominent topographical fea­
tures, matters other than “the accident or circumstance of 
neighborhood,” from which the Court was justified in finding 
that no plan involving the transportation of pupils between 
non-contiguous zones in order to further improve the racial

3a

Opinion of the Court of Appeals



mix within the system would be feasible at this time. There 
was evidence also of a lack of funds to purchase and operate 
buses. However, the financial condition of the City of Knox­
ville would not provide sufficient reason for failing to order 
the transportation of pupils if the Board of Education were 
found to be operating a dual public school system which re­
quired busing in order to become a unitary system.

Having found that a unitary school system exists, the Dis­
trict Court acted within its discretion in refusing to adopt the 
plaintiffs’ plan which would require the busing of a large 
number of pupils in order to obtain a certain percentage of 
black students in each school in the system. As the Supreme 
Court said in Swann at page 24, “The constitutional com­
mand 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.”

Appellants complain that the result in this case is incon­
sistent with that reached by this Court in other school de- 
,segregation cases. If the result is different, it is only because 
the evidence produced in the District Court required a dif­
ferent result. The brief answer to the principal arguments 
of appellants is that the proof relied upon by them in the Dis­
trict Court and now reviewed by this Court sitting in banc 
failed to establish their contentions. We do not depart from 
the principles enunciated by this Court in Northcross v. Board 
of Education of Memphis City Schools, 466 F.2d 890 ( 6th 
Cir. 1972); Kelley v. Metropolitan Board of Education of 
Nashville and Davidson County, Tennessee, 463 F.2d 732
(6th Cir. 1972), cert, denied,----U .S .----- (1972); Mapp v.
Board of Education of Chattanooga,----F .2 d ----- (6th Cir.
1973) and Davis v. School District of City of Pontiac, 443 F.2d 
573 (6th Cir.), cert, denied, 404 U.S. 913 (1971).

This Court has consistently upheld the decrees of the Dis­
trict Judges of this Circuit when properly supported by the 
pleadings and evidence. An appellate court simply cannot 
violate this settled principle of our jurisprudence, no matter

4a

Opinion of the Court of Appeals



how desirable a particular result may appear to be. The ex­
perienced District Judge who has lived with this case from its 
inception analyzed the evidence in great detail. His findings 
are supported by substantial evidence and are not clearly er­
roneous. As the Supreme Court, speaking through Chief 
Justice Burger, has recently written:

In shaping equity decrees, the trial court is vested with 
broad discretionary power; appellate review is corre­
spondingly narrow. Lemon v. Kurtzman —  U.S. — , 
41 U.S. Law Week 4467 (April 2, 1973)

In briefs and argument it has been brought out that the 
population of Knoxville is shifting and that changes have oc­
curred since the decision was reached by the District Court 
and will continue to occur. We decline to consider these 
matters in the present appeal. Appropriate relief required by 
changed conditions is a matter for presentation to and con­
sideration by the District Court. We reemphasize the hold­
ing of this Court in Kelley v. Metropolitan Board of Education 
of Nashville and Davidson County, supra: “Like most decrees 
in equity, an injunctive decree in a school desegregation case 
is always subject to modification on the basis of changed cir­
cumstances.” 463 F.2d at 745-46.

The demand of appellants for attorney fees from the be­
ginning of this litigation must be determined in light of the 
most recent Supreme Court pronouncement in Northcross v.
Memphis Board of Education,----U.S.-----, 41 U.S. Law Week,
3635 (June 5, 1973). This action is remanded for considera­
tion of this issue and in all other respects the judgment of the 
District Court is affirmed.

No costs are taxed. Each party will bear its own costs on 
the appeal.

5a

Opinion of the Court of Appeals



Opinion of the Court of Appeals

M il l e r , Circuit Judge, in a separate opinion, concurring in 
the affirmance of the judgment of the district court, in which 
W eic k , Circuit Judge, joins.

I am in full agreement with the per curiam opinion insofar 
as it affirms the judgment of the district court. However, it 
is my view that the affirmance should be upon the basis of the 
well-considered opinion of Judge Robert L. Taylor. See Goss 
v. Board of Education, 340 F.Supp. 711 (E.D. Tenn. 1972). 
Since the district court has continuing jurisdiction of the case, 
it has the authority to consider any question pertaining to 
attorneys’ fees as well as any other pertinent issue. For this 
reason I do not find it necessary that the case should be form­
ally remanded to the district court.

6a



O pin ion  o f  the D istrict Court

Josephine GOSS et al.
V.

BOARD OF EDUCATION, CITY OF 
KNOXVILLE, TENNESSEE, et al.

Civ. A. No. 3984.
United States District Court.

E. D. Tennessee, N. D.
March 8, 1972.

School desegregation case. The 
United States District Court for the 
Eastern District of Tennessee, 320 F. 
Supp. 549, with certain exceptions, de­
nied relief sought by plaintiffs, and 
plaintiffs appealed. The Court of Ap­
peals, O’Sullivan, Senior Circuit Judge, 
444 F.2d 632, remanded case. The Unit­
ed States Supreme Court, 403 U.S. 956, 
91 S.Ct. 2293, 29 L.Ed.2d 866, denied 
plaintiffs’ motion for injunction. There­
after, the District Court, Robert L. Tay­
lor, J., held that where no child was ex­
cluded from any school in school system 
because of his race or color, and school 
children were assigned to schools on basis 
of their residence and without regard to 
their race, and disproportionate racial 
mixtures in some of schools were result 
of residential patterns, city was operat­
ing a unitary school system consistent 
with constitutional requirements.

Decree accordingly.

1. Schools and School Districts @-> t
Evidence established that board of 

education had continued to comply with 
constitutional guidelines previously ap­
proved by the district court, the Court of 
Appeals, and the United States Supreme 
Court.

2. Schools and School Districts @=13
Standard to be achieved by school 

authorities is destruction of a system 
which treats children differently solely 
on basis of race.
3. Schools and School Districts @=>154

Where no child was excluded from 
any school in school system because of

his race or color, and school children 
were assigned to schools on basis of their 
residence and without regard to their 
race, and disproportionate racial mix­
tures in some of schools were result of 
residential patterns, city was operating 
a unitary school system consistent with 
constitutional requirements.

Avon N. Williams, Jr., Nashville, 
Tenn., Carl A. Cowan, Knoxville, Tenn., 
Jack Greenberg, New York City, for 
plaintiffs.

S. Frank Fowler, Sam F. Fowler, Jr., 
W. P. Boone Dougherty, Knoxville, 
Tenn., for defendants.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.
This lawsuit commenced December 11, 

1959, over twelve years ago. While a 
detailed account of its early history is 
set out at D.C., 270 F.Supp. 903, 904- 
912 (1967), a brief recitation of that 
history will place the issues in proper 
perspective.

Judicial History

On April 8, 1960, the defendant sub­
mitted a grade-a-year desegregation plan 
effective September, 1960. This plan 
was approved after an extended eviden­
tiary hearing. D.C., 186 F.Supp. 559. 
That decision was modified by the Court 
of Appeals to require acceleration of the 
grade-a-year schedule. However, the 
Court of Appeals expressly approved the 
neighborhood pupil assignment system. 
6th Cir., 301 F.2d 164, 168-169. The de­
fendant amended the plan on June 25, 
1962, and March 14, 1963, to accelerate 
the schedule.

On May 11, 1964, defendant adopted a 
plan for complete desegregation effective 
September, 1964. Each child was to be 
assigned to the school “designated for 
the district in which he or she legally re­
sides,” and that “districting [was to be] 
based on the location and capacity (size) 
of school buildings and the latest enroll-

7a



8a

Opinion of the District Court

ment studies.” In order to preserve con­
tinuity of education, children whose as­
signment was altered by the plan were 
permitted to complete the grade sequence 
where they were before transferring to 
a new school. This was called the 
“grade-requirement” transfer.

On May 8, 1967, plaintiffs filed a mo­
tion requesting the defendant to provide 
an equitable distribution of all racial 
and socio-economic elements in the popu­
lation within each school in the system. 
After a full evidentiary hearing, the 
Knoxville school system was found to be 
fully desegregated under the plan in ef­
fect since the school year 1963-64. D.C., 
270 F.Supp. 903, 918. In that opinion, 
we expressed the view th a t:

" . . .  there is no constitutional 
duty on the part of the school board 
to bus Negro or white children out of 
their neighborhoods or to transfer 
classes for the sole purpose of alleviat­
ing racial imbalance which it did not 
cause, nor is there a duty to select new 
school sites solely in furtherance of 
such purpose . . . ” 270 F.Supp. 
903, at 916-917.
Believing our responsibility to be dis­

charged, we struck the case from the 
docket. This decision was affirmed in 
all respects except that we were instruct­
ed to keep the case on the docket to in­
sure future compliance with Brown I. 
6th Cir., 406 F.2d 1183, 1191 (1969).

On November 17, 1969, plaintiffs filed 
a motion for immediate relief based on 
Alexander v. Board of Education, 396 
U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19
(1969) . At the pretrial conference, 
proof was limited to alleged discrimina­
tory developments since the decision of 
June 7, 1967. After the evidentiary 
hearing, we found that the building pro­
gram was consistent with the neighbor­
hood school system approved in 1967, and 
that the defendant was operating a uni­
tary system within the meaning of Alex­
ander, D.C., 320 F.Supp. 549, 561-562
(1970) .

This decision was on appeal when 
Swann v. Charlotte-Meeklenburg Board

of Education, 402 U.S. 1, 91 S.Ct. 1267, 
28 L.Ed.2d 554 (1971), and its compan­
ion cases were filed. Without reviewing 
our decision, the Court of Appeals re­
manded the case on June 22, 1971 "for 
further proceedings consistent with 
Swann . . . and the other relevant
Supreme Court opinions announced on 
April 20, 1971.” (Emphasis added) 6th 
Cir., 444 F.2d 632, 640.

Immediately thereafter, plaintiffs pre­
sented to Mr. Justice Stewart a motion 
for immediate relief. He denied the mo­
tion because we had not had an oppor­
tunity since the remand order “to in­
quire whether respondents have failed to 
maintain a unitary school system as de­
fined in Swann . , . and prior cas­
es.” (Emphasis added) His order 
states that if it is found that defendant 
has not “maintained a unitary school 
system, [it] must ‘terminate dual school 
systems at once,’ ” citing Alexander, su­
pra. (Emphasis added)

On August 16, 1971, a pre-trial confer­
ence was held and an order entered de­
fining the issue as whether defendant 
had maintained a unitary system within 
the meaning of Swann. Defendant 
agreed to construct a pupil locator map 
as suggested by the Court of Appeals. 
444 F.2d 632, at 639, n. 1. The eviden­
tiary hearing was set for September 7, 
1971.

Difficulties in completing the pupil lo­
cator map caused a continuance to Octo­
ber 21, 1971. Plaintiffs’ expert witness’ 
inability to complete his preparation 
caused a continuance to December 1, 
1971. Then, after three full days of 
testimony, plaintiffs moved for the join­
der of the Mayor and City Council of 
Knoxville as co-defendants. The motion 
was granted and the hearing was re­
cessed to permit service on the proposed 
new defendants. On December 15, 1971, 
these parties appeared by attorney, 
agreed to their joinder, but requested a 
continuance to study the record already 
accumulated and otherwise prepare their 
case. Their request was granted and the 
hearing resumed January 31, 1972. Com­



9a

Opinion of the District Court

pletion of the hearing was delayed until 
February 3, because of the inability of 
plaintiffs’ chief witness to be present be­
fore that date.

The history of this case, unlike that 
in Swann, reveals that the Court has 
had the full cooperation of the defendant 
Board of Education in the effort to sat­
isfy the constitutional mandate of Brown 
1 and subsequent Supreme Court cases.

Pupil Locator System
The pupil locator system has the cap­

ability of locating the residence of each 
pupil within 1000 feet of the address on 
his enrollment card and identifying him 
by race and grade level. The data used 
came from the initial enrollment in Sep­
tember, 1971. It contains the normal 
mistakes made in initial enrollments and 
does not show 2700 to 2800 pupils who 
live in Knox County but attend school in 
the City. Consequently, it is 3000 to 
4000 pupils below actual enrollment. The 
computer print-outs used in making the 
maps show the number of pupils of each 
race, at each grade level, living within 
each 1000 foot square. It also shows to­
tals and percentages for each square.

Two pupil locator maps were created 
from the information contained in the 
print-outs, For both maps a grid was 
superimposed on a map of Knoxville and 
each square given a number correspond­
ing to one on the print-out. One map 
shows the total number of white pupils 
and the total number of black pupils liv­
ing in each square and attending a City 
school. The other is a color schematic 
map that reveals the degree of racial con­
centration by residence within each 
square. In addition, three transparent 
overlays were prepared which show the 
school zone boundaries at the elementary, 
junior high and senior high level, as well 
as the percentage of blacks attending 
each school.

Topography

Knoxville's central business district is 
located at the approximate center of the 
City on the north shore of the Tennessee

340 F.Supp.— 45Va

River. At that point two bridges con­
nect South Knoxville to the business dis­
trict. Apart from these bridges, South 
Knoxville is separated from the rest of 
the City by the river.

The business district is a grid of 
streets nine city blocks in from the river 
and six city blocks parallel to it. East of 
the business district is a basin and hill 
of largely uninhabited land. This land 
is undergoing redevelopment as the 
Mountain View Urban Renewal Project. 
At the top of the hill is the now isolated 
Green Elementary School. North of the 
district is the Southern Railway Depot 
and to its north is an east-west (actually 
southwest to northeast) four lane, divid­
ed, interstate highway (1-40). At the 
northwest corner of the business dis­
trict is a complex rail and highway inter­
change. A basin containing the Louis­
ville and Nashville Railroad (L & N) 
freight yards is on the west side of the 
business district.

The east-west interstate highway cuts 
the City north of the river into northern 
and southern sections. West of the busi­
ness district this highway also carries 
north-south interstate traffic as 1-75. 
At the northwest corner of the business 
district these highways separate. 1-75 
travels northwest paralleling to its east 
a Southern Railway track. 1-40 East 
travels northeast paralleling another 
Southern Railway track to its north.

At the southwest corner of the busi­
ness district the river makes a “U” 
shaped bend. Most of the land in this 
bend is owned or utilized by The Uni­
versity of Tennessee. A bridge crosses 
the river into the County at the western 
end of this bend. It carries the four- 
lane divided Alcoa Highway which is an 
off-shoot of the interstate. The L & N 
Railroad track parallels Alcoa Highway 
at this point west of the University. The 
land bordered by Alcoa Highway and the 
L & N on the west, the interstate on the 
north, the business district on the east 
and the river on the south is known as 
the Ft. Sanders-UT area.

In addition to the interstates there are 
six major traffic arteries emanating



10a.

Opinion of the District Court

from the business district to the outlying 
suburbs. These a re : Chapman Highway 
(S), Kingston Pike (SW), Western Av­
enue (W), Central Avenue (NW), Broad­
way (N), and Magnolia Avenue (NE). 
These streets have substantially greater 
traffic capacity than the other streets 
of the City. In order to get from one 
outlying section to another noncontigu­
ous section, it is usually necessary to 
travel to the center of the City on one of 
these streets, or one of the interstates, 
then back out on another artery. This 
street pattern creates intense traffic 
congestion in the inner city and on the 
main arteries.

Except for the central business dis­
trict, the Mountain View project, the UT- 
Ft. Sanders area, and along the main 
traffic arteries, most of the land within 
the City is residential property.

Along 1-40 there are twenty points 
where one can cross under or over the 
highway. Fourteen are west of the 
business district and six are east of it. 
Only three are east of the urban renewal 
project; whereas ten are west of the Ft. 
Sanders-UT area. Most of the latter 
are in the extreme west because of a steep 
ridge that parallels 1-40 on its south- 
side, west of the Alcoa Highway inter­
change. The Southern Railway right-of- 
way appears to have restricted cross­
overs in the east. 1-75 North has three 
east-west cross-overs. Otherwise, it, and 
the railroad, separate the north-central 
and northwestern parts of the old city.

Nearly three miles out 1-75 North, the 
highway converges with the railroad to 
pass through Sharp’s Gap. The Gap is 
a break in a steep ridge that separates 
Inskip and Lincoln Park northeast of I -  
75 and separates Norwood and Lonsdale 
southwest of 1-75. The ridge is too 
steep for traffic and has no roads cross­
ing it. It extends nearly a mile south­
west of the Gap in an undeveloped, rural 
area. This land is crossed by two nar­
row farm roads west of the ridge.

There is extensive undeveloped land 
in the western and northwestern suburbs 
annexed from the County in 1963. These

include Rocky Hill, West Hills, Bearden, 
Middlebrook, Third Creek, Ridge Dale, 
Pleasant Ridge and Norwood, These sec­
tions are experiencing rapid residential 
development.

It is obvious from this data that the 
geography in Knoxville is substantially 
more complex than that found in Davis 
v. School Comm’rs of Mobile County, 402 
U.S. 33, 91 S.Ct. 1289, 28 L,Ed.2d 577
(1971); that Knoxville is geographically 
segmented by natural and man-made 
boundaries; and that outlying residen­
tial areas in the west and northwest are 
under-developed.

Demography
In a broad sense, East Knoxville is the 

area north of the river, south of the 
eastbound Southern Railway right-of- 
way, and east of the Mountain View 
project. In a narrow sense, it refers to 
the black community immediately east 
of the Mountain View project and south 
of Magnolia Avenue. The area north 
of Magnolia has been known as Park 
City. Approximately one and a half 
miles to its northeast lies the Burling­
ton community. Roughly a mile due east 
of Burlington is the Holston Hills sub­
urb. Southeast of Burlington and south­
west of Holston Hills is an area some­
times referred to as Holston Heights. 
In subsequent discussion these restricted 
names will be intended unless “greater 
East Knoxville” is mentioned.

The 1970 United States Census divides 
greater East Knoxville into seven tracts 
for enumeration purposes. These tracts 
do not correspond to the accepted com­
munity boundaries described above. The 
data for each tract shows the proportion 
of blacks to total population in the tract 
as a whole. A racial mixture in a given 
tract is not evidence of an integrated 
neighborhood because it ignores neigh­
borhood cohesiveness. Thus, the census 
reports pror ide only a general indication 
of residential patterns.

With this caveat, the 1970 census 
shows all of greater East Knoxville as 
having black residents. The heaviest



11a
Opinion of the District Court

concentration is in the tract immediately 
east of the Mountain View project. It is 
95% to 100% black. Adjacent tracts 
range from 25% to 49% black to 75% to 
94% black. And, outlying tracts are 6% 
to 24% black to 25% to 49% black. 
This data indicates an all-black neigh­
borhood in East Knoxville which ex­
tends as a narrow band into Burling­
ton. There is a substantial black minor­
ity in both Park City and Holston 
Heights. Except for the northeastern ex­
tension of East Knoxville, Burlington has 
few blacks. The tract that encompasses 
Holston Hills extends west into Holston 
Heights. It is 25% to 49% black. There 
is a permissible inference that the blacks 
in Holston Hills are concentrated along 
its western edge.

The 1960 United States Census shows 
East Knoxville as 75% to 94% black and 
extending towards, but not into, Bur­
lington. Park City and Holston Heights 
were 75% to 94% white. Burlington 
was 95% to 100% white. Since the 1960 
census used fewer tracts in greater East 
Knoxville than did the 1970 census, a 
comparison of the two reports is mislead­
ing. The apparent increased black con­
centration in East Knoxville is probably 
the result of a smaller tract in the later 
census. Two conclusions, however, are 
obvious. In 1960, Holston Hills and 
much of Holston Heights were not with­
in the city limits. Secondly, there has 
been a major expansion of blacks into 
most of greater East Knoxville between 
the two census.

In the northwest pocket created by the 
junction of 1-40 and 1-75 lies a commu­
nity known as Mechanicsville, To its 
immediate north, and west of 1-75 
North, is the Beaumont community. 
North of Beaumont is the Lonsdale com­
munity. Beaumont and Lonsdale are 
separated by an industrial and rail strip

1. The business district and the Mountain 
View project area have so few residents 
that their racial mixture is insignificant 
relative to the other census tracts.

2. This apparent discrepancy with the cen­
sus data is explained by the fact that the

along Tennessee Avenue. To Lonsdale’s 
north is the southwest extension of 
Sharp’s Ridge which separates Lonsdale 
from Norwood.

The 1970 census shows Lonsdale to be 
50% to 74% white, and Beaumont to be 
95% to 100% white. The eastern Me- 
chaniesville tract is 75% to 94% black 
and the western tract is 50% to 74% 
black. The Lonsdale and Beaumont 
tracts in 1970 are the same size and have 
basically the same racial mixture as they 
had in the 1960 census. Mechanicsville, 
on the other hand, was 50% to 74% 
black in 1960. It appears that Mechan- 
icsvilie’s black community has increased 
by 27.1% in the east and 5.6% in the 
west between 1960 and 1970.

All other parts of Knoxville are 95% 
to 100% white in both the 1960 and the 
1970 census reports.1 The 1970 census 
shows Knoxville’s population to be 13% 
black. Dr. Karl Taeuber, creator of a 
census segregation index, testified that 
since 1940 each census demonstrates that 
Knoxville has had a high degree of resi­
dential segregation.

The Board’s color schematic pupil 
locator map, although limited to school 
children, shows more precisely the geo­
graphic distribution of the races than do 
the census maps. While consistent with 
the census maps, the pupil locator map 
reveals facts not evidenced by the census 
materials. First, Lonsdale is racially 
segregated. Its western half is predom­
inantly black, and its eastern half is 
predominately white. Second, most of 
Beaumont has a slight black minority. 
Third, most of the eastern Mechanicsville 
tract is predominately white.2 Fourth, 
north-central Knoxville, the pocket be­
tween 1-75 North and 1—40 East has a 
black minority, albeit less than 5%. 
Fifth, the bulk of Holston Hills is all- 
white; only its western edge has black

predominately white pupil locator grid 
squares have few students and the pre­
dominately black squares have many. 
This situation demonstrates a serious 
shortcoming of all these m aps: They fail 
to correlate racial distribution with popu­
lation density.



Opinion of the District Court

residents. Sixth, isolated black children 
are scattered over the rest of the City.

The preliminary 1970 census found 
174,587 residents of Knoxville and 276,- 
293 residents of Knox County. Testi­
mony indicates that East Knoxville has 
11,500 black residents, Mechaniesville 
has 6,500 and Lonsdale has 6,000.

The 1963 annexation tripled the size 
of Knoxville from 21 to 77 square miles. 
Of the 22,005 households in the annexed 
areas in 1970, 21,873 were white. On a 
household basis, between 1960 and 1970, 
Knoxville’s black community was re­
duced from 16.7% to 11.8% of the total 
population.

Some of the black movement into 
greater East Knoxville was caused by 
the displacement of 1080 black house­
holds from the Mountain View project 
area. Over half of these households 
were relocated in public housing projects 
in East Knoxville. Most of the remain­
ing household units moved east towards 
Burlington.

The following conclusions can be 
reached from the preceding population 
data: (1) the black population of Knox­
ville is a small proportion of the total 
population (13%); (2) Knoxville’s black 
population is residentially segregated 
into three geographic areas; and, (3) 
except for the expansion of the East 
Knoxville black community, essentially 
identical concentrations existed at the 
first hearing of this case in 1960.

Urban Renewal is a federal program 
which attempts to rebuild an area with 
50% or more substandard structures 
that are beyond rehabilitation. These 
projects are overseen by the Department 
of Housing and Urban Development 
(HUD) and the Knoxville Housing Au­
thority (KHA). KHA’s role in these 
projects is limited to land acquisition, 
relocation of residents, public improve­
ments and approval of private redevel­
opment plans.

The Mountain View project, as previ­
ously mentioned, is in the redevelopment 
stage. Fifty-four acres of this project 
area are designated for 400 FHA 236

apartments for low and moderate income 
tenants. The one-bedroom apartments 
will rent for $115.00 per month. Two 
hundred units are under construction 
and will be available for occupancy 
around March, 1972. Construction of 
the remaining units will commence when 
the weather breaks this spring. The con­
venient location of these apartments rel­
ative to the business district is the basis 
for the prediction that they will attract 
white moderate income tenants as well 
as black tenants. A predominately white 
but reasonably integrated neighborhood 
is expected to evolve.

Execution of a new urban renewal 
project, the Morningside project, began 
June 30, 1971. This project area is just 
east of the Mountain View project be­
tween the river and Magnolia Avenue. 
It contains 355 acres, 1000 household 
units, and is 95% black. The goal of 
this project is redevelopment of the 
neighborhood for the people who already 
live there. It is expected to remain pre­
dominately black.

The existence of these projects creates 
a fluid residential situation in East 
Knoxville which precludes accurate pre­
diction of future patterns.
Changes in School Enrollment Patterns

The overall racial composition of the 
Knoxville schools ten years ago, the year 
following annexation and the present 
school year is:

Percentage
Year Total White Black Black
1961-62 20,478 15,852 4,626 22.1%
1963-64 39,409 34,019 5,390 13.6%
1971-72 34,876 29,109 5,767 16.5%

These enrollment figures reveal several
facts. Annexation nearly doubled total 
enrollment and reduced the overall pro­
portion of blacks by 8.5%. Since annex­
ation the system has lost 4,533 pupils, or 
11.5%, of its annexation enrollment. 
This loss reflects the departure of 4,910 
white pupils (14.4% of annexation white 
enrollment) and the gain of 377 black 
pupils. The net effect is a 2.9% increase 
in the proportion of blacks in the City 
system.



13a
Opinion of the District Court

This year the Knox County schools 
have a total enrollment of 23,702. Since 
annexation the County system has gain­
ed 6,066 pupils. Its average annual gain 
for this period (658 pupils per year) con­
trasts with the City system’s average an­
nual loss (567 pupils per year). This 
corroborates the testimony of witnesses 
that the City system is losing pupils 
through out-migration to the County. 
Since annexation, the proportion of 
blacks in the County system has re­
mained around 1% while the proportion 
in the City has increased from 13.6% to 
16.5%. Further, since desegregation of 
the County schools in 1965-66, the actual 
number of blacks in that System has de­
creased.

In 1960-61, out of forty-one schools 
in the City system there were 23 schools 
in which all the pupils were white and 
10 in which all pupils were black. There 
were thirty black children, or 0.6% of 
the black enrollment, attending the eight 
integrated schools. In that year there 
were no schools with integrated staffs. 
That was the first year under the grade- 
a-year plan approved by the Court.

In 1965-66, out of 65 schools there 
were 23 schools in which all pupils were 
white and 9 schools in which all pupils 
were black. There were 2648 black chil­
dren, or 45.6% of the black enrollment, 
attending 33 integrated schools. In that 
year, there were 11 schools with integrat­
ed staffs.

In 1970-71, out of 64 schools, there 
were 17 schools in which all pupils were 
white and no schools in which all pupils 
were black. There were 6,019 black chil­
dren, or 100% of the black enrollment 
attending 47 integrated schools. That 
year found 51 schools with integrated 
staffs.

This year, 1971-72, out of 64 schools, 
there are 16 schools in which all pupils 
were white and no schools in which all 
pupils were black. There were 5767 
black children, or 100% of the black en­

rollment, attending 48 integrated schools. 
All schools have integrated staffs.

This record is indicative of the Knox­
ville School authorities’ effort to comply 
with the judicial directive to desegre­
gate. It is in sharp contrast with the 
situation in Swann v. Charlotte-Mecklen- 
burg Board of Education, supra, 402 U. 
S. at 7, 91 S.Ct. at 1272, 28 L.Ed.2d 554 
where all parties agreed that the system 
“fell short of achieving the unitary 
school system that [Green v. County 
School Board, 391 U.S. 430, 88 S.Ct. 
1689, 20 L.Ed.2d 716 (1968), and its 
companion cases] require.” The deseg­
regation plan in that case had a “free 
transfer provision” which rendered the 
plan illusory. (Free transfer provisions 
were declared unconstitutional in Mon­
roe v. Board of Commissioners, 391 U.S. 
450, 88 S.Ct. 1700, 20 L.Ed.2d 733 
(1968).) Knoxville does not have a free 
transfer provision.

The Existing Neighborhood Pupil 
Assignment System

Beardsley Junior High and Cansler 
Elementary School are next door to each 
other in Mechanicsville; Maynard Ele­
mentary is four blocks east of Cansler; 
Moses Elementary is four blocks east by 
south of Maynard, or nine blocks from 
Cansler. Cansler has a 98.3% black en­
rollment; Maynard has a 94.6%, black 
enrollment; and, Moses has a 79.8% 
white enrollment. This reflects the res­
idential composition of their respective 
zones.

Because of the relative proximity of 
these schools, they have excess classroom 
space. However, in addition to its regu­
lar programs, the Moses plant contains a 
pre-school program and the Van Gilder 
School.3 Cansler has a pre-school pro­
gram and a special education program in 
addition to its regular program. May: 
nard has a nursery program. Due to 
these special programs there is only one 
vacant classroom at these three schools. 
Beaumont Elementary School is seven

3. Van Gilder is a special program for children with emotional learning blocks. I t needs ad­
ditional classroom space.



14a

Opinion of the District Court

and a half blocks north by west of May­
nard, six and a half blocks northeast of 
Cansler, and ten blocks northwest of 
Moses. It has an extensive severely 
mentally retarded program (149 pupils) 
and no vacant classrooms. The nearest 
elementary school to Beaumont’s north 
is Lonsdale, one mile to its northwest. 
Beaumont is 13.3% black. Sam E. Hill 
Elementary is three blocks southwest 
of Lonsdale. It is 96.6% black, while 
Lonsdale is 13.1% black. The extreme 
proximity of these schools and residen­
tial segregation in their zones necessi­
tate some disparity in their relative ra­
cial composition. Under the circum­
stances the zone lines for these schools 
are reasonably drawn and the. racial 
composition of each school corresponds 
to the composition of its zone.

Turning to East Knoxville, the Moun­
tain View Elementary plant is eight 
blocks east of Green; Eastport is five 
blocks northeast of Mountain View and 
thirteen blocks east by north of Green. 
These three school sites have been in use 
for as long as there are school records, 
that is, back into the last century. 
Throughout the past decade each of these 
schools has had a predominately black 
enrollment. Eastport has always had a 
black enrollment. From 1965-66 to 
1969-70 Green experienced a heavy en­
rollment loss due to the Mountain View 
project displacement. In 1970-71 the 
Mountain View school closed and Green’s 
enrollment jumped by 203 pupils. How­
ever, this year its enrollment is down 82 
pupils.

Moving into greater East Knoxville, 
Park Lowery Elementary School serves 
the Park City neighborhood. It is six 
blocks north by west of Eastport and 
a mile northeast of Green. Fair Garden 
Elementary School serves the Burlington 
area. It is sixteen blocks (1% miles)

. northeast of Park Lowery and eighteen 
blocks northeast of Eastport. Robert 
Huff Elementary School serves the Hols-

4. Despite complete desegregation in 1964-
65, the “grade-requirement” transfer, then
permissible, prevents realistic eorrespond-

ton Heights area and was annexed from 
the County. It is one mile south by east 
of Fair Garden and one and a third 
miles due east of Eastport on the south­
eastern City limits. Robert Huff will 
be replaced by the new Sarah Moore 
Green School on the latter’s completion. 
The construction site is one thousand 
feet northwest of the present Robert 
Huff plant. Chilhowee Elementary 
School was also annexed from the Coun­
ty. It serves Holston Hills and is one 
and a half miles northeast of Fair Gar­
den. Each of these schools enrolled only 
white children when this lawsuit began. 
Yet each has since acquired a substan­
tial black minority as shown below on a 
percentage basis:

Park Fair Robert
Lowery Garden Huff Chilhowee

1961-62 1.1 0.2 — —

1962-63 2.5 1.0 — —

1963-64 1.8 2.9 0 0
1964-65 2.7 4.2 0 0
1965-66 40.9 27.7 4.4 0
1966-67 50.8 50.0 9.2 0
1967—63 58.9 63.0 15.1 1.4
1968-69 65.3 77.7 15.7 4.1
1969-70 66.8 79.1 21.6 6.4
1970-71 66.0 83.4 27.0 10.8
1971-72 69.3 86.0 27.8 18.7

The in c r e a s in g  p e rc e n ta g e  o f  b la c k  ch il-
dren in these schools is consistent with 
the changes in residential patterns in 
their respective zones as shown by succes­
sive census reports. With one qualifi­
cation 4, these figures show an influx of 
blacks in Park City and Burlington. The 
expansion has leveled off in Park City 
but is continuing in Burlington. There 
has been a slow but steady movement of 
blacks into Holston Heights. More re­
cently the movement has extended into 
Holston Hills and last year became great­
ly pronounced.

In summation, the elementary school 
zones in greater East Knoxville are rea­
sonable in light of the relative distances 
between these schools. The racial com­
position of each school reflects both the 
present residential composition of its zone

enee between enrollment figures and resi­
dential distribution for that year. The 
next year is a more realistic base.



15a

Opinion of the District Court

and the changes within the zone for the 
past seven years.

The County school system does not 
have a junior high school system. There­
fore, Robert Huff and Chilhowee, which 
were annexed from the County, have 
eight grades instead of six grades found 
in schools that have always been City 
schools. As a result Vine and Park 
Junior High Schools, which serve the rest 
of greater East Knoxville, have a higher 
proportion of blacks than they might 
otherwise be expected to have. Park is 
64.4% black and Vine is 99.8% black. 
These schools are seven blocks apart. 
Both are between Green and Eastport.

East and Austin Senior High Schools 
were fed by Park and Vine Junior High 
Schools, respectively, until their consoli­
dation in 1968-69. The combined enroll­
ment figures for these two schools were 
51.2% black in 1961-62 and remained 
around that level until 1965-66 when it 
rapidly rose to the 99% level. More sig­
nificant is the fact that combined enroll­
ment for these schools declined from 1196 
in 1961-62 to 697 in 1971-72.

The pupil locator map discloses that 
291 more white children attending City 
schools live in the Austin-East Senior 
High School zone than attend schools 
within the zone. The shortage appears 
to be at the senior high level. Many of 
these children have vocational transfers 
to Fulton, the system’s only comprehen­
sive vocational high school. The Fulton 
zone is 2% to 3% black, yet the school’s 
enrollment is 10.2% black. This discrep­
ancy is clearly attributable to vocational 
transfers. Vocational transfers, how­
ever, do not account for all the shortage. 
There are indications that the balance can 
be found at Holston High. No evidence 
uras introduced to show whether school 
registration procedures include a deter­
mination that the registrant resides with­
in the appropriate attendance zone. It is 
possible that transfer procedures can be 
circumvented. The evidence is clearly in­
sufficient to explain the situation.

Knoxville has been on a residential 
pupil assignment system basis as long as

there has been a public school system in 
Knoxville. This situation is in contrast 
with the Charlotte-Mecklenburg County 
system, which only adopted a neighbor­
hood system in 1965.

The facts just enumerated demonstrate 
that the racial composition of each school 
with predominately black enrollment is 
consistent with the previously approved 
neighborhood pupil assignment system. 
Of the thirty schools with enrollments 
in excess of 99.0% white children, 
twenty-five are in South Knoxville or the 
annexed suburbs. The other five schools 
are located in neighborhoods without 
black residents. The remaining twenty- 
seven schools have varying racial mix­
tures and are located in neighborhoods 
that reflect their respective mixtures. 
Thus, the racial composition of the 
schools corresponds to the residential pat­
terns within each school zone. A substan­
tial increase in the racial mixture of 
nearly every school would require massive 
bussing of children.

The Latest Changes: Effective, 
September, 1972

In the summer of 1971, the Board, in 
an effort to comply with the new guide­
lines laid down in Swann v. Charlotte- 
Mecklenburg Board of Education, 
amended its desegregation plan to estab­
lish the following policies:

1. Authorized the creation and main­
tenance of a pupil locator map.

2. Established a policy of assigning 
faculty and supporting staff, insofar as 
is administratively sound, to have the 
faculty of each school reflect the racial 
balance of the school system as a whole.

3. Revised transfer policy to permit 
only two classes of transfers: (1) voca­
tional or special education transfers and 
(2) majority to minority race transfers. 
These transfers must be renewed annual­
ly and will be honored only so long as the 
transfer basis remains valid.

4. The following zone adjustments 
were made:

(a) Pair Sam E. Hill and Lonsdale
Elementary Schools;



16a

Opinion of the District Court

(b) Move the severely mentally re­
tarded program at Beaumont and the 
pre-sehool program at Moses to 
Cansler; and close the regular program 
at Cansler by dividing its regular 
pupils between Beaumont and West 
View (West View is 100% w hite);

(c) Move the regular program at 
Moses to Maynard and expand the spe­
cial education program at Moses;

(d) Organize Beardsley as a two- 
year junior high and Rule as a four- 
year senior high serving the present 
Rule-Beardsley attendance zones;

(e) Move the Austin-East zone line 
further east;

(f) Pair the vocational programs at 
Austin-East and Fulton;
5. Assured election of minority race 

cheerleaders.
The Board has agreed to and will pay 

transportation expenses of all students 
who transfer under the majority to 
minority transfer provision. See 402 
U.S., at 26-27, 91 S.Ct. 1267, 28 L.Ed.2d 
554.

Although the proposed zone adjust­
ments were adopted prior to creation of 
the pupil locator map, the map shows that 
they will improve the racial mixture in 
the affected schools. The Board declined 
to alter the elementary zones in East 
Knoxville until the new Sarah Moore 
Green School, now 15%-20% complete, 
is ready for occupancy. The racial 
balance of the affected neighborhood is in 
a state of flux. Further, the impact of 
the 400 residential units in the Mountain 
View project area is unknown at the

5. Dr. Trotter is a school curriculum and 
buildings expert who is employed as Di­
rector of the University of Tennessee 
School Planning Lab. The Lab assists 
school systems that are planning new pro­
grams or designing new buildings. He is 
presently evaluating another system’s cur­
riculum in light of a recent bussing or­
der. Dr. Trotter lives in Maryville, 
Blount County, Tennessee.

6. The City-County Local Sales Tax Agree­
ment reads in pertinent part:

“After the adoption of the sales tax 
by the referendum, the County will,

present time. These uncertainties pre­
clude a meaningful zone adjustment in 
East Knoxville at this time.

The Trotter Plan

After adopting these zone changes, the 
Board retained Dr. Charles Trotter, a 
professional educator5, to prepare a 
school zone map from the pupil locator 
data that would achieve the maximum 
racial mix without bussing children. Ex­
cept for two major differences, his zone 
map is essentially the same as that 
adopted by the Board. Dr. Trotter zoned 
150 white pupils living in Norwood to 
Rule High School. These children are 
presently being transported to West High 
by the County under the Local Sales Tax 
Agreement. Assistant Superintendent 
Bedell testified that this suggestion was 
not adopted because of distance and safe­
ty factors. In order to get from Norwood 
to Rule it is necessary to make two cross­
ings of an interstate highway at a clover- 
leaf with no crosswalks. In addition, if 
zoned to Rule these children would live 
less than one and one-half miles from 
the school and would not be eligible for 
County transportation.6 The other major 
difference is that Dr. Trotter adjusted 
zone lines in East Knoxville based on 
present pupil location data.

Dr. Trotter testified that the resi­
dential concentration of blacks in Knox­
ville into three geographically well-de­
fined areas made it impossible to obtain 
the same degree of racial mixing in each 
school with a neighborhood pupil assign­
ment system. He said that improvement

without charge to the City, provide 
transportation by bus to and from school 
for all pupils living in neighborhoods 
which were furnished such transporta­
tion by the County School System prior 
to annexation . . . and
who live one and one-half (1%) miles or 
more from the schools attended. The 
County will not be required to trans­
port pupils to any school outside the 
particular school zone in which such 
pupils live or to which they are as­
signed in a contiguous school zone.”



17a

Opinion of the District Court

on his plan would require massive cross- 
town bussing.

The Stolee Plan
Plaintiffs’ expert, Dr. Michael Stolee 

believes that a school system whose en­
rollment is 16.5% black must have a 10% 
to 30% black enrollment in each school in 
order to be desegregated. Since only 
eight schools in Knoxville meet this test, 

• he concluded that Knoxville has a segre­
gated school system. He said that it is 
not possible to have a good desegregation 
plan without bussing. Dr. Stolee intro­
duced his plan which he asserts will effec­
tively desegregate the Knoxville public 
schools.

Doctor Stolee has made some twenty- 
school desegregation studies, forty addi­
tional school desegregation consultations, 
and is presently serving as a consultant 
to the Legal Defense Fund of the Na­
tional Association for the Advancement 
of Colored People in three other school 
desegregation cases. (The Legal Defense 
Fund is representing plaintiffs in this 
case.) Throughout the three days de­
fendants presented their proof in chief, 
Dr. Stolee sat within the bar and con­
sulted with plaintiffs’ counsel, as did Dr. 
Bedell who sat with defendant’s counsel.

Dr. Stolee was provided a copy 
of the computer print-outs of the pupil 
locator data for use in preparing his plan. 
He said he did not use this information 
because it did not include the County 
children who attend City schools under 
provisions of the City-County Local Sales 
Tax Agreement.7 8 Instead he relied on

7. Dr. Stolee is Associate Dean of the Uni­
versity of Miami (Florida) .School of Ed­
ucation. He also is it professional school 
desegregation witness and consultant.
His income from the latter employment 
is restricted to 20% of the salary paid 
him by the University of Miami. This 
condition of employment restricts his fees 
for outside consultations and court ap­
pearances to between $5,000 and $6.- 
000 each year, exclusive of expenses. He 
testified that he expects $4,000 for his 
efforts in this case.

8. Section 3 of the agreement provides 
that a child living outside the corporate

340 F.Supp — 46

the current enrollment figures for each 
school and used existing elementary 
school boundaries for boundaries in his 
plan. The Court has studied the pupil 
locator data and realizes that a plan 
based on that information would require 
time-consuming, tedious, and exhausting 
effort. Dr. Stolee’s failure to use this 
data substantially reduces the weight of 
his testimony.

On the elementary level, Dr. Stolee left 
alone the six schools that meet his test 
of an integrated school. The other ele­
mentary schools are divided into seven 
groups. Each of these “clusters” drew its 
attendance from the existing neighbor­
hood zones of the schools assigned to the 
cluster. Each cluster included one school 
with a predominately black student body. 
Some of the clusters have contiguous 
zones, and others have non-contiguous 
zones. Each cluster has one school desig­
nated as a grade-center which serves all 
children at the designated grade level who 
reside in a cluster zone. Children at the 
designated grade level who do not reside 
within the grade-center’s neighborhood 
zone are bussed to the grade center. 
Children who reside within the grade-cen­
ter’s neighborhood zone but are not at 
the designated grade level are bussed to 
other schools in the cluster. Dr. Stolee 
declined to suggest a basis for deciding 
to which school in the cluster the latter 
children should be assigned. Since only 
16.8% of the total elementary school en­
rollment is black, and this is residentially 
concentrated, black neighborhood schools 
had to be selected as grade-centers if un­
necessary bussing were to be avoided.9

limits of the City may attend a school 
annexed by the City in 1963 tuition free, 
if the school is within two miles of his 
residence or if he would have attended 
that school had it remained a part of the 
County School System.

9. Dr. Stolee’s original elementary school 
plan designated all the grade-centers as 
sixth grade centers. His amended plan 
designates three of them as first grade 
centers. The stated reason for the change 
was to avoid discrimination against black 
first graders by making them do most of 
the bus riding.



18a

Opinion of the District Court
Doctor Stolee testified that 3684 ele­

mentary school children would be bussed 
under this plan. He later qualified this 
statement to indicate that this was only 
75% of the elementary pupils who would 
be attending schools outside their neigh­
borhood zone. He said that 25% of these 
4912 children would make their own 
transportation arrangements.

He stated that these children would 
have to be bussed from one to six miles. 
On cross-examination, he admitted that 
he had not laid out bus routes or com­
puted the mileage. Using Dr. Stolee’s 
map, the Court located the most feasible 
routes between the most distant schools 
in six elementary clusters. It then mea­
sured the travel distance in each case. 
They were as follows: Norwood to East- 
port, 7.9 miles; Shannondale to Fair 
Garden, 10.4 miles; Sterchi to Park 
Lowery, 8.8 miles; Rocky Hill to May­
nard, 10.0 miles; West Hills to Cansler, 
8.6 miles; Anderson to Green, 6.6 miles. 
These distances substantially exceed 
those estimated by Dr. Stolee.

More significantly we found only one 
feasible bus route in each of these cases. 
In each case, Knoxville’s street patterns 
compel routing on the major traffic 
arteries at the hours of maximum traffic 
congestion. The Court is of the opinion 
that out of the aforementioned routes on­
ly the West Hills-Cansler route can be 
traveled in rush hour traffic in less than 
thirty minutes. The State Department 
of Education’s regulations limit transit 
time for elementary school children to 
periods under thirty minutes.

The Stolee plan assigns junior high 
pupils to particular schools by a feeder 
system. Each junior high school zone

All tile testimony indicates that bus 
riding is harder on younger children than 
it is on older children. The amended 
plan substantially increases the total num­
ber of first graders that would have to 
ride a bus for the sole purpose of reducing 
the number of black first graders who 
would have to ride buses.

10. The language that probably would be 
controverted reads: “The County will
not be required to transport pupils to any

encompasses specific, current elementary 
zones. Three of these zones are non­
contiguous. Dr. Stolee testified that 990 
pupils would have to be bussed in these 
three zones. In other words, 1320 chil­
dren will attend a junior high school in a 
non-contiguous zone with 25% making 
their own transportation arrangements.

The Stolee plan converts Whittle 
Springs Junior High into a seventh 

.grade center and pairs it with Christen- 
berry Junior High. The Whittle Springs- 
Christenberry Junior High zone encom­
passes the non-contiguous Eastport Ele­
mentary zone. It also encompasses the 
“contiguous” Inskip Elementary zone. 
Sharp’s Ridge separates Inskip from 
north-central Knoxville where Whittle 
Springs and Christenberry are located. 
This fact and the route that would have 
to be traveled from Inskip necessitate 
bussing from that neighborhood. (Inskip 
is 4.1 miles from Whittle Springs and 
5 miles from Christenberry. Eastport 
is 5 miles from Whittle Springs and 3.2 
miles from Christenberry.) Despite 
these facts, Dr. Stolee testified that no 
“additional transportation” would be 
needed in this zone. Since the Eastport 
children would have to be bussed to these 
schools, that statement is probably an 
oversight.

Regarding the bussing of children from 
Inskip to these schools, Dr. Stolee appar­
ently assumed that the County could be 
compelled under the City-County Local 
Sales Tax Agreement to bus these chil­
dren to Whittle Springs and Christen­
berry. This assumption is a legal con­
clusion which he is not competent to 
make.10 Mr. Lewis Howard, an attorney,

school outside the particular school zone 
in which such pupils live or to which 
they are assigned in a contiguous school 
zone.” The Whittle Springs Christen­
berry zone lines as drawn by Dr. Stolee 
give the apjjearance of encompassing a 
contiguous Inskip community. However, 
a close examination of a map reveals 
that Inskip is not contiguous to the 
rest of the zone. Sharp’s Ridge sepa­
rates Inskip from Lincoln Park to its 
immediate south. (There are no direct



19a

Opinion of the District Court

who in his capacity as City School Board 
member, testified that the Local Sales 
Tax Agreement is an illusive agreement 
that has been the subject of many differ­
ing interpretations since its inception. 
Since Dr. Stolee was present for Mr. 
Howard’s testimony and had a copy of 
the transcript of it, he should have known 
that his assumption was questionable. 
.Of course, he might not have relied on 
this assumption, in which case he over­
looked the obvious need to bus children 
from Xnskip.

Under the Stolee plan, the Beardsley 
Junior High zone is five miles long, with 
the Beardsley plant at the easternmost 
end. The children living in the western 
Cedar Grove and Pond Gap Elementary 
zones would have to be bussed to Beards­
ley. Dr. Stolee testified that no new 
transportation would be required in this 
proposed zone. This opinion is based 
on the legal conclusion that the County’s 
obligation to bus children in the Cedar 
Grove and Pond Gap areas would require 
the County to bus these children to 
Beardsley if the zone lines were changed. 
This conclusion is questionable since the 
Local Sales Tax Agreement is easily 
interpreted as limiting the County’s ob­
ligation to bus to those schools nearest 
the eligible child’s residence, (Cedar 
Grove School is 1.9 miles from Bearden 
Junior High and 4.9 miles from Beards­
ley. Pond Gap is 1.4 miles from Bearden 
Junior High and 2.5 miles from Beards­
ley.)

In addition, Dr. Stolee apparently over­
looked the need to bus children living in 
the Perkins Elementary zone to Beards­
ley. The Cansler Elementary zone, con­
taining Beardsley, is separated from the 
Perkins zone by an interstate highway 
and railway interchange. For reasons of 
safety, these children must be bussed to 
Beardsley should they be assigned there. 
The County has no obligation to provide 
this bussing under the Local Sales Tax 
Agreement.

road routes from Inskip to the rest of the
proposed zone.) Inskip children would
have to travel at least a mile through oth-

Because they were annexed from the 
County, Spring Hill and Alice Bell schools 
house grades 1-8 and do not feed into a 
junior high school. Since these schools 
zones have no black residents, at the 
junior high level these schools would be 
100% white under the Stolee plan. Since 
these schools will not meet Dr. Stoiee’s 
definition of desegregated schools, his 
testimony that his plan would effectively 
desegregate the Knoxville schools is erro­
neous.

At present both the South and the 
Young High School plants house grades 
7-12. Dr. Stolee would convert these 
schools to 9-12 senior high schools and 
send South Knoxville 7th and 8th graders 
to Vine Junior High. This change would 
compel the bussing of 1400 children 
across the Henley Street Bridge, on the 
most congested traffic artery in Knoxville 
(Chapman Highway) and through the 
crowded central business district a t peak 
traffic hours. This would require 
twenty-four 60-passenger bus loads twice 
each day. In addition, fourteen CO-pas- 
senger bus loads of elementary children 
would have to take the same routes at 
about the same times twice each day. If 
Dr. Stoiee’s assumption that 25% of these 
children will obtain their own transporta­
tion is correct, the traffic problem will 
only be compounded. Some of these chil­
dren can expect to spend over two hours 
each day commuting.

The other junior high schools with non­
contiguous zones are Gresham and 
Bearden. Some 300 youngsters would 
have to be moved from Fair Garden 8.8 
miles to Gresham in extreme North Knox­
ville (Fountain City). Some 160 would 
have to be moved from Maynard 6 miles 
west to Bearden Junior High.

Doctor Stolee testified that his pro­
posed Tyson Junior High School zone 
would not require transportation. Moses 
Elementary School, which is zoned to 
Tyson in the Stolee plan, is 1.8 miles from 
Tyson. Children from the Moses zone

er zones before they could reach the Whit­
tle Springs-Christenberry zone.



20a

Opinion of the District Court

must cross under the interstate highway 
at one of its most heavily used exits 
which provides direct access to the Uni­
versity of Tennessee. These distance and 
safety factors make bussing from Moses 
to Tyson highly advisable if not necessary 
under the Stolee plan. There are similar 
needs for limited bussing in the Rule 
Junior High and the Park Junior High 
zones proposed by Dr. Stolee because they 
encompass residental areas that are ac­
cessible only by dangerous routes.

On the senior high school level, the 
Stolee plan has three non-eontiguous 
zones: Bearden draws from Maynard (10 
miles), Central draws from Fair Garden 
(10 miles), and Fulton draws from East- 
port (3.2 miles). He stated, in effect, 
that 562 senior high students would have 
to attend school outside their neighbor­
hood zone.

The Stolee plan’s proposed zone lines 
for West High eliminate portions of the 
present West zone that are receiving 
transportation from the County under the 
Local Sales Tax Agreement. Further, 
the proposed West zone encompasses the 
present Cansler and Moses Elementary 
zones. The latter schools are 5.4 miles 
and 4.6 miles, respectively, from West. 
Dr. Stolee’s testimony that no additional 
transportation would be required in the 
West zone is clearly incorrect.

After careful study of the Stolee plan, 
we are convinced that Dr. Stolee grossly 
understated the actual amount of bussing 
and the distances involved in his plan. 
The many serious oversights in his plan 
and his failure to utilize the pupil locator 
data prevent his plan from serving as a 
workable alternative to the Board’s plan. 
It is evident that Dr. Stolee did not de­
vote the time to his plan necessary to do 
a professional job. This failure combined 
with his manifest interest in this type of 
case seriously undermines his credibility 
as an expert witness. If implemented 
his plan would disrupt the Knoxville 
School system and the lives of parents 
and children in many households.

In addition to the patent weaknesses in 
the Stolee plan, Dr. Bedell pointed out 
some of the shortcomings of the plan. A

number of these are significant. They 
are as follows:

(1) The plan discriminates against 
black high school students without pri­
vate transportation who are bussed out of 
their neighborhoods and who want to par­
ticipate in after-school extra-curricular 
activities such as athletics.

(2) The plan did not consider plant 
capacity. It would require one hundred 
additional classrooms at some schools 
while underloading others.

(3) Implementation of the plan would 
require legal arrangements between the 
City Board of Education, the County 
Board of Education, the City Council, the 
County Court and the State Department 
of Education. Negotiation of these ar­
rangements could take many months.

(4) By removing the ninth grade from 
certain junior high schools, the plan de­
prives these schools of state funds for 
guidance counselors.

. Faculty and Principal Assignments
Faculty employment is based on the 

applicant’s qualifications and the sys­
tem’s need for special skills. There is no 
position in the system for which race is 
a consideration. A large number of black 
teachers have been hired over the past 
few years. However, there is a shortage 
of black elementary school teachers.

The Board’s resolution of July 26, 1971, 
to assign teachers to achieve a racial 
balance in each school consistent with the 
ratio for the system as a whole was ac­
complished by transferring some 180 
teachers. On the elementary level this 
was accomplished by lottery.

Subject area certification of teachers 
prevented assignment by lot on the senior 
high level. These assignments were made 
by Dr. Bedell’s office. Shop instructors, 
athletic instructors and band directors 
were sheltered because their skills are in 
short supply and their programs for the 
1971-72 school year were already under­
way. Consequently, at the senior high 
level only academic instructors were con­
sidered for reassignment. Some exper­
ienced English teachers at Austin-East



21a

Opinion of the District Court

were sheltered because otherwise that 
school would have no English teacher 
with more than two years' experience.

Beardsley is the only school in the sys­
tem without a study hall. This requires 
a unique teaching assignment at that 
school that, in turn, prevented achieve­
ment of the desired racial ratio at that 
school. Vine gets a large number of wel­
fare pupils from low income housing 
projects in its zone. Some of its teachers 
were sheltered because of their skill in 
student control.

For these reasons, the desired faculty 
ratio has not been achieved at some 
schools. Dr. Bedell’s office is continu­
ously trying to correct these imbalances 
as rapidly as possible without damaging 
the continuity of the departmental pro­
gram in any school. Some improvement 
has been made since the chart was made. 
Dr. Bedell testified that the faculties of 
each school in the system, except three, 
are within two faculty members of having 
a racial balance identical to the overall 
faculty composition for the entire school 
system.

The defendant’s principal hiring prac­
tice is to promote from within. All facul­
ty and principals receive the superin­
tendent’s newsletter where all vacancies 
are advertised. Those interested in a 
specific vacancy must apply for the posi­
tion.

Under a private tenure act, a princi­
pal’s salary is tied to the size of the school 
he supervises. If there are no vacancies 
at schools with the same classification, he 
may be locked into a particular school. 
When a principal is transferred to a 
school at a lower classification, the act 
requires that his salary be maintained 
at the higher level. This situation has 
obvious inequities.

Austin-East had a white principal until 
last year when he requested a transfer. 
Since only blacks applied for that va­
cancy, it is now held by a black. No black 
applied for the recent vacancy at Holston. 
Until it was closed, Bell House school had 
a predominately white student body and a 
black principal. Fair Garden has a white 
principal and a predominately black stu­
dent body. Blacks have refused offers of

principalships at predominately white 
schools.

In the opinion of the Court the faculty 
of each school in the system is effectively 
desegregated.

Transfer Policy
Lewis Howard, a Knoxville attorney 

and member of the defendant Board of 
Education, testified that the transfer 
policy is a problem throughout the system 
because of frequent unhappiness with in­
dividual school situations unrelated to 
race. Dr. Fred Bedell, Assistant Super­
intendent in Charge of Personnel and 
Development, testified that one of the 
past abuses of the transfer system has 
been its use as a disciplinary threat. He 
said that majority-to-minority racial 
transfers are now a matter of right. The 
Board is encouraging them and will pro­
vide bus fare to these transferees. No 
child is excluded from any school for 
reasons of race.

Defendant has made its transfer 
records available to the plaintiffs. Dr. 
Bedell gave a group of parents permission 
to inspect the transfer records. They 
informed counsel for plaintiffs that al­
though they had conducted only a partial 
check, they had found thirty-four non- 
vocational transfers from Austin-East 
for this school year. Dr. Bedell’s staff 
verified thirty-one of these transfers. 
Because the present transfer policy was 
adopted in July, 1971, it is possible that 
these transfers for the 1971-72 year 
were approved before that date. Apart 
from this partial check by third parties, 
plaintiffs made no effort to introduce 
any competent evidence relating to the 
Board’s transfer policy. There is no 
credible evidence that the Board’s trans­
fer policy is being used to promote segre­
gation.

The Board introduced copies for the 
transfer requests from Austin-East for 
the past three school years. Dr. Stolee 
testified that these requests demon­
strated that the transfer system had been 
used to promote segregation. These re­
quests do not indicate the applicant’s 
race, and the bulk of them are checked



22a

Opinion of the District Court
"disapproved.” It is not understood how 
Dr. Stolee could reach his conclusion from 
this exhibit.

Extra-Curricular Activities
The extra-curricular activities in the 

City schools are widely varied but chiefly 
are athletic or musical. Participation is 
on the basis of interest and ability. 
There are no racial restrictions in extra­
curricular activities. There is athletic 
competition between predominately black 
schools and predominately white schools. 
Obtaining minority race cheerleaders at 
mixed schools has been a matter of re­
cent concern. Last spring the Board took 
action to assure minority representation.

The Building Program
Of classrooms with no specific program 

assignments, there are forty-eight va­
cant regular classrooms. These occur in 
South Knoxville and the inner city. They 
are in buildings built in former popula­
tion centers of the City that have experi­
enced a steady out-migration to the 
suburbs. These areas do not have the 
population density they once had. En­
largement of these zones will not help be­
cause it merely reduces the size of the 
adjacent zone, thereby passing the va­
cancy problem to the next school. This is 
the reason many special programs are 
located in inner city schools. There are 
two alternative solutions to the problem. 
Some inner city schools can be abandoned 
and new ones built at more appropriate 
locations. This would require voter ap­
proval of a bond issue. Or, the City could 
establish a transportation system to haul 
children in from the overcrowded sub­
urban schools. The City does not have 
funds to establish such a system. Under 
the terms of the Local Sales Tax Agree­
ment, County transportation in the an­
nexed areas is not available for bussing 
children to the inner city schools.

The new Central High was completed 
and opened at the beginning of this school 
year. It is located one-half mile east of 
the old Central High. The new building 
was necessitated by the condition of the 
old plant. It is in an annexed suburb and

cost $5,000,000.00. The old Central plant 
is now Gresham Junior High.

The new Bearden High was built to re­
place the old plant which had many port­
able classrooms. It is in an under-devel­
oped, rapidly growing area that needed 
and still needs additional classroom space. 
It also serves some 400 County students. 
The old Bearden plant has been filled 
with some 1000 junior high pupils. The 
elementary schools in the area, Rocky 
Hill and West Hills, are overcrowded and 
use portable classrooms. The new 
Bearden High plant made possible the 
creation of a separate junior high at the 
old plant. They are in the annexed 
suburbs.

Northwest Junior High School was con­
structed to relieve the pressure on its 
feeder elementary schools which had con­
tinued to serve grades 1 through 8 since 
their annexation from the County. It 
serves annexed suburbs.

The new Sarah Moore Green School, 
now under construction, is intended to 
replace Robert Huff and relieve the pres­
sure on Fair Garden and Eastport. 
Robert Huff is now at capacity. East- 
port and Fair Garden are overcrowded. 
The reasons the Green School is not used 
to relieve this overcrowding are that spe­
cial programs decrease the space actually 
available there, and Green’s inaccessibil­
ity creates problems. *

Mr. Lewis Howard testified that the 
Board has considered site selection as a 
means of desegregation. Their policy 
is to build schools where the children live 
in order to avoid constructing a “white 
elephant.” Areas where few children live 
are threatened with changes rendering 
them unsuitable for schools and which 
may compel abandonment of school facil­
ities. Schools in areas that are losing 
population can be fully utilized only if 
children are transported to them from 
other areas. The Board does not have 
a transportation system nor does it have 
funds to acquire one.

He further testified that existing 
school facilities are located between re­
cently constructed suburban schools and 
the interior schools where black children



23a

Opinion of the District Court

live. The latter are not operating at 
capacity; adjacent schools are at capac­
ity ; and the peripheral suburban schools 
are overcrowded. Under these circum­
stances, the Board feels a priority obliga­
tion to build schools in the suburbs to 
relieve overcrowding there. Until all 
children have adequate classroom space, 
site selection cannot be used effectively 
to increase integration.

The Board has not used school site 
selection or school abandonment to pro­
mote or perpetuate segregation.

Bussing
Investigation disclosed that creation of 

a racial balance in each school approx­
imating the ratio for the system as a 
whole would require bussing 8,000 to 10,- 
000 children in eighty buses. If the 
pick-up points were the childrens’ homes 
the annual cost will exceed $500,000.00. 
If the pick-up points are neighborhood 
schools the annual cost will exceed $300,- 
000.00. The Board does not own any 
buses or any bus maintenance facilities.

The City school system is facing a se­
rious financial crises. It has recently 
experienced large deficits in its operating 
budget and realistically anticipates an­
other large deficit this fiscal year. The 
system has exhausted available revenue 
sources and stands to lose additional state 
and county funds because of continuing 
enrollment decline. Board Member Lewis 
Howard testified that the Board is not 
able to provide a proper instructional 
program with current budgetary limita­
tions. Since 90% of the Board’s budget 
is consumed as salary costs, the creation 
of any new programs or projects with­
out independent funding would neces­
sarily reduce the faculty size and further 
reduce the quality of education offered 
the children.

Swann Distinguished
This case has been remanded for re­

consideration in light of Swann and its

12. Prior to the District Court’s bussing 
order, Charlotte bussed 23,600 pupils at 
all grade levels daily an average of 15

companion cases. An examination of the 
Swann opinion reveals several important 
factual differences from our case.

Goss was commenced in 1959 and Knox­
ville began to desegregate in 1960-61. 
Prior to that time Knoxville used a neigh­
borhood pupil assignment system and has, 
with Court approval, continued to do so. 
Knoxville does not have a pupil trans­
portation system. Knoxville permits only 
vocational and majority-to-minority ra­
cial transfers. In contrast, Swann was 
not commenced until 1965. Prior to that 
time, Charlotte had a large pupil trans­
portation system 12 and did not purport 
to assign pupils on the basis of geograph­
ically drawn zones. Charlotte’s 1965 de­
segregation plan instituted geographical 
pupil assignment for the first time and 
at the same time allowed almost unlimited 
transfer privileges. Cf. Monroe v. Board 
of Commissioners, 391 U.S. 450, 88 S.Ct, 
1700, 20 L.Ed.2d 733 (1968).

In 1967, we held that Knoxville had 
been operating a unitary system since 
1964-65. That decision was affirmed 
by the Court of Appeals in 1969. In 
1970, we held that Knoxville had main­
tained a unitary system within the mean­
ing of Alexander since 1967. In contrast, 
all parties in Swann agreed that in 1969 
the Charlotte-Meckienburg system fell 
short of achieving the unitary system 
required by prior cases. In 1969, Char­
lotte had segregated athletic competition, 
a segregated school transportation sys­
tem and a racially segregated faculty. 
Knoxville has none of these character­
istics.

Conclusions of Law
[1] The great preponderance of the 

evidence shows, and the Court finds, that 
defendant has continued to comply with 
the constitutional guidelines previously 
approved by this Court, the Court of Ap­
peals, and the United States Supreme 
Court. The entire thrust of plaintiffs’ 
evidence and argument is to the effect 
that the Constitution requires defendant

miles one way for an average trip of
over an hour. 402 U.S., at 30, 91 S.Ct.
1267, 28 I,.Ed.2d 554.



24a

Opinion of the District Court

to create and maintain a nearly identical 
racial balance in each of its schools ir­
respective of residential patterns. Thus, 
the case having been remanded for re­
consideration in light of Swann, the 
critical question is whether Swann re­
quires such racial mixtures.

The opinion in Swann contains a state­
ment that is clearly responsive to that 
question:

“ . . . If we were to read the
holding of the District Court to re­
quire, as a matter of substantive con­
stitutional right, any particular degree 
of racial balance or mixing, that ap­
proach would be disapproved and we 
would be obliged to reverse. The con­
stitutional 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.” (Emphasis added) 
402 U.S., at 24, 91 S.Ct. at 1280. 

Although that statement refutes plain­
tiffs’ argument, it does not disclose the 
standard defendant must meet. That 
standard is expressed at other points in 
the opinion:

"Our objective in dealing with the 
issues presented by these cases is to 
see that school authorities exclude no 
pupil of a racial minority from any 
school, directly or indirectly, on account 
of race; it does not and cannot em­
brace all the problems of racial prej­
udice, even when those problems con­
tribute to disproportionate racial 
concentrations in some schools.” (Em­
phasis added) 402 U.S., at 23, 91 S.Ct. 
at 1279.
The Knoxville School Board has not ex­

cluded any pupil from any school, directly 
or indirectly, on account of race. Knox­
ville’s residential segregation has con­
tributed “to disproportionate racial con­
centrations in some schools,” but this is 
not the fault of the School Board.

We do not interpret Swann as invali­
dating the neighborhood pupil assign­
ment system.

"At some point, these school author­
ities and others like them should have 
achieved full compliance with this

Court’s decision in Brown I. The sys­
tems will then be ‘unitary’ in the sense 
required by our decisions in Green 
and Alexander.” 402 U.S., at 31, 91 
S.Ct. at 1283.

Earlier the opinion refers to Green as 
holding:

“The objective today remains to 
eliminate from the public schools all 
vestiges of state-imposed segregation. 
Segregation was the evil struck down 
by Brown I  as contrary to the equal 
protection guarantees of the Constitu­
tion. That was the violation sought to 
be corrected by the remedial measures 
of Brown II. That was the basis for 
the holding in Green that school au­
thorities are ‘clearly charged with the 
affirmative duty to take whatever steps 
might be necessary to convert to a uni­
tary system in which racial discrimi­
nation would be eliminated root and 
branch.’ 391 U.S., at 437-438, [88 
S.Ct, 1689, at 1694, 20 L.Ed.2d 716.]” 
402 U.S., a t 15, 91 S.Ct. at 1275.

It should be recalled that in Green there 
were two separate systems in operation 
despite residential integration.

[2] The Alexander definition of a 
“unitary system” is best identified by 
Chief Justice Burger’s statement in his 
concurring opinion in Northcross v. 
Board of Education, 397 U.S. 232, 236- 
237, 90 S.Ct. 891, 893, 25 L.Ed.2d 246 
(1970);

"The suggestion that the Court has 
not defined a unitary school system is 
not supportable. In Alexander . . .
we stated, albeit perhaps too crypti­
cally, that a unitary system was one 
‘within which no person is to be ef­
fectively excluded from any school be­
cause of race or color.’ ”

Another indication of the constitutional 
standard appears earlier in the opinion.

“The constant theme and thrust of 
every holding from Brown I  to date is 
that state-enforced separation of races 
in public schools is discrimination that 
violate [d] the Equal Protection Clause. 
The remedy commanded was to dis­
mantle dual school systems.” 402 U.S., 
at 22, 91 S.Ct. at 1279.



Opinion of the District Court

25a

As indicated by these quotations, the 
standard to be achieved by school author­
ities is the destruction of a system which 
treats children differently solely on the 
basis of race.

[3] No child is excluded from any 
school in the Knoxville school system be­
cause of his race or color. Thus, the 
Knoxville system is a unitary system 
within the meaning of Alexander. As 
Knoxville school children are assigned to 
schools on the basis of their residence 
and without regard for their race, the 
system is not a dual system as was de­
fined in Green. Disproportionate racial 
mixtures in some of the Knoxville schools 
are the result of residential patterns. 
Swann is clear that the school author­
ities are not expected to prevent different 
treatment of the races outside the schools. 
402 U.S., at 22-23, 91 S.Ct. 1267, 28 L. 
Ed.2d 554. The racial composition of the 
Knoxville schools is not the result of 
present or past discriminatory action 
upon the part of the School Board. Knox­
ville is in compliance with Swann. Ac­
cordingly, Knoxville is operating a uni­
tary school system consistent with con­
stitutional requirements.



MEILEN PRESS IN C  —  N. Y. C. «<gjg^. 219