Goss v. Knoxville, TN Board of Education Petition for Rehearing En Banc

    \

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Nos. 72-1766, -1767

JOSEPHINE GOSS, et al.,
Plaintiffs-Appellants,

v s .

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

Defendants-Appellees.

PETITION FOR REHEARING EN BANC

CARL A. COWAN
2212 Vine Avenue 
Knoxville, Tennessee 37915

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
JOHN BUTLER

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants, 
Petitioners for Rehearing



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 72-1766, -1767

JOSEPHINE GOSS, et al..
Plaintiff s-Appe Hants

v s .

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

Defendants-Appellees.

PETITION FOR REHEARING EN BANC

Appellants, by their undersigned counsel, respectfully
pray that, pursuant to F.R.A.P. 40 and 35(a), this Court
grant rehearing en banc of the March 29, 1973 decision by a
panel in these appeals, in a per curiam opinion joined by

1/Judges Weick and Miller, for the reasons that the opinion is 
"completely inconsistent with opinions of this Court in which 
the great majority of the members of this Court have joined" 
and its result, "unless it is reversed en banc, will be to 
delay desegregation of the [Knoxville] schools by at least 
another year. But meantime it will mislead many people to 
expect a change in constitutional law which this Court has no

±r Judge Lively also wrote a separate concurring opinion.



power to accomplish." Mapp v. Board of Educ. of Chattanooga,
No. 71-2006 (6th Cir., October 11, 1972) (Edwards, J., dissent-

27
ing), slip op. at pp. 14, 33.

The grounds for such a grant of rehearing before the 
entire Court are essentially the same as those which supported
a rehearing en banc in Mapp, see Petition for Rehearing En_Banc
therein, at pp. 1-3, 12-15. Most compelling is the drastic 
difference in approach to similar Tennessee school desegre­
gation cases among various panels of this Court, with consequent 
drastic difference in result permitted. Not only does this 
create confusion among the district courts in this Circuit 
concerning the meaning of the Fourteenth Amendment, but it 
significantly weakens respect for law among the lay public by 
lending credence to prevalent notions of arbitrary decision­
making by federal judges. If Knoxville need not use pupil 
transportation (busing) as part of its desegregation plan 
because it claims financial hardship, while the contrary result 
is reached under similar circumstances in Nashville and Memphis, 
then the kind of public pressure which forced Judge Morton to 
recuse himself can be expected to increase. See Kelley v. 
Metropolitan County Bd. of Educ., 6th Cir., No. 72-2143.

w  The Mapp case was reargued en banc on December 8, 1972. 
Appellants are mystified at the release of the panel opinion 
in this case in advance of the en banc ruling in Mapp, since 
the cases raise many of the same issues. A copy of the per 
curiam opinion of the panel and the concurring opinion of 
Judge Lively is attached hereto as Exhibit "A" since the 
opinion may not have been circulated (Practitioners1 Handbook 
for Appeals to the . . .  Sixth Circuit (1971), at p. 45] or 
may have escaped the attention of the Court.

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The per curiam opinion in this case contributes to the weak­
ening of this Court's role in setting standards for the 
Circuit; it must be reheard en banc and reversed.

I

The factual background of these appeals is set out in
2 /the margin. The issues on the appeals were framed by the 

various holdings of the district court (described at pp. 23-25

w  A detailed history of this case can be found in Appendix A 
to the Brief of Appellants on this appeal. This action to 
desegregate the Knoxville schools was filed in 1959 (after 
dismissal without prejudice of a 1957 suit). A "grade-a-year" 
plan with minority-to-majority transfer was approved in 1960.
186 F. Supp. 559. This Court approved the plan, 301 F.2d 164, 
but the Supreme Court held the transfer feature unconstitutional, 
373 U.S. 683. A subsequent appeal to this Court was remanded 
upon the representation of the school board's attorney that 
all students would be assigned according to geographic zoning 
commencing in 1964-65.

Further hearings were held in the district court in 1967. 
Plaintiffs contended (and still contend) that the geographic 
zones adopted by the Board were not drawn to achieve desegre­
gation; that in fact they duplicated in large part the old 
dual attendance zoning; and that a number of other practices 
of the school system (such as administration of the transfers) 
resulted in continued segregation. The district court rejected 
all of these claims. 270 F. Supp. 903. It held plaintiffs 
were precluded from challenging the zones because they "were 
not attacked or were impliedly approved by the Supreme Court 
in 1963," 270 F. Supp. at 913; compare 373 U.S. at 685. This 
Court affirmed, in an opinion placing heavy reliance upon Deal 
v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966). 406
F. 2d 483.

Following Alexander v. Holmes County Bd. of Educ., supra, 
another hearing was held, at the conclusion of which the 
district court basically rejected plaintiffs' contentions, 
except to find (1) the Rule-Beardsley grade structure promoted 
segregation and was an unjustified departure from the "neigh­
borhood school" concept which the school board claims to 
follow; (2) there appeared to be serious irregularities in the 
administration of transfers; and (3) faculty integration should 
be accelerated. Plaintiffs appealed to this Court, raising 
several substantive issues. See Brief for Appellants in No. 
20834. While the case was awaiting decision, the Supreme Court

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of appellants' brief): that schools are sufficiently integrated
to meet the Constitutional obligations of the board even if 
they enroll only one student of the minority race; that the 
Knoxville board's geographic zones are "reasonable" and con­
stitutional irrespective of their efficacy in promoting desegre­
gation; that Knoxville's geography is so much more complex 
than that of Charlotte or Mobile as to render those decisions 
inapplicable to the question whether pupil transportation for 
desegregation must be used; that plaintiffs' alternate desegre­
gation proposal amounts to "racial balancing" and is completely 
unworkable; and, indeed, because of financial difficulties, any 
pupil transportation for desegregation in Knoxville is unworkable.

Under the guise of following Swann by approving the 
district court's exercise of discretion, the panel vitiates it

(n. 3 cont'd)
opinions in Swann and companion cases were issued. Plaintiffs 
thereupon filed a motion for decision, setting out the relief 
which they contended was justified in this and other pending 
school desegregation appeals in light of Swann. This motion, 
rather than the issues on appeal, became the major subject of 
the subsequent opinion remanding the matter to the district 
court for reconsideration in light of Swann. 444 F.2d 632, 
immediate relief denied with instructions to issue mandate,
403 U.S. 956 (1971). Judge O'Sullivan, writing for the panel, 
did recognize that

Swann, 1971, forbids the use of our decisions 
in Deal . . .  to justify a plan of desegrega­
tion in a state which employed de_ jure segre­
gation until the Brown decision.

444 F.2d at 639. The present appeals were taken from the 
district court proceedings on remand. The court held (as it 
had repeatedly held since 1967) that the Knoxville school 
system was unitary, and it approved the minor modifications 
to the plan of desegregation which the school board proposed.

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by sanctioning continued segregation in Knoxville. While 
purporting to act under the constraints of F.R.C.P. 52 (the 
"clearly erroneous" rule), the panel not only fails to 
properly weigh erroneous district court findings against the 
evidence, but it incorporates approvingly legal doctrine of 
the district court which has been rejected by other panels of 
this Circuit and by the vast majority of federal courts 
throughout the nation.

The progenitors of the per curiam decision in this case 
are easy to identify. They are not the cases listed by Judge 
Edwards in his Mapp dissent, "in which the great majority of 
the members of this court have joined." They are, rather, the 
prevailing opinion for the Mapp panel, with its intimations 
that Brown v. Board of Educ., 347 U.S. 483 (1954) should be 
overruled; the dissenting opinion of Judge Weick in Northcross 
v. Board of Educ., 466 F.2d 890 (1972), cert, denied, 41 
U.S.L.W. 3447 (February 20, 1973); the per curiam affirmance 
based on district court "discretion" in Robinson v. Shelby 
County Bd. of Educ., 467 F.2d 1187 (1972); and such earlier 
opinions as Northcross v. Board of Educ., 420 F.2d 546 (6th 
Cir.), remand aff'd 397 U.S. 232 (1970). In this series of 
opinions, including the one in this case, "hostility to 
desegregation appears almost tangibly" (Petition for Rehearing 
En Banc in Mapp, at p. 12).

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I I

Before turning to what we consider some of the major 
legal errors committed by the panel, we pause to emphasize 
the depth of the division, in analysis and result, among 
various panels of this Court in Tennessee school desegregation 
cases, and to assess the impact of this phenomenon upon the 
public.

In Nashville, Tennessee, an almost totally effective 
desegregation plan using considerable busing was ordered into 
effect by the district court and approved by this Court. The 
panel rejected the contention that current racial imbalance 
resulted from housing segregation unrelated to the long 
tradition of school segregation, noting that the Nashville 
schools simply had never been effectively desegregated, Kelley 
v. Metropolitan County Bd. of Educ., supra. In Memphis, the 
district court's order requiring implementation of a very modest 
busing plan as a first step toward desegregating this large 
city system, and the lower court's determination that school 
construction and operational policies had contributed to the 
residential segregation by which the board sought to excuse 
current school segregation were affirmed by a divided panel. 
Northcross v. Board of Educ. of Memphis (1972), supra. Yet 
in Mapp, supra, the dissenting member of that panel wrote an 
opinion for the majority of another divided panel, holding that 
the district court might even have gone too far with a purely 
contiguous pairing plan for Chattanooga. And the same dissenting

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member of the Northcross panel, joined in both instances by the
same Circuit Judge, formed part of the majority for per curiam
"discretion" affirmances in Robinson and Goss. The result:
Nashville and Memphis bus for desegregation while Chattanooga
and Knoxville do not. "Residential segregation" excuses the
affirmative obligation to desegregate in Chattanooga, Knoxville
and Shelby County but not in Memphis or Nashville. Is it any
wonder, then, that a Memphis newspaper editorialized as follows
two days after the release of the panel opinion in this case?

At a time when Memphis is getting set for a 
federal court order that will mean additional 
school busing next fall, Knoxville 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 appellate court. For Knoxville the 
Circuit Court agreed that busing is "impractical."
For Memphis, the court ordered plans for busing 
to proceed.
It is interesting to note that different three- 
judge panels heard the two cases ....
The differences between Memphis and Knoxville 
as to population and school enrollments naturally 
present different problems before different judges.
But principles don't change and neither does the 
Constitution, which leaves us wondering why 
busing has been ruled "impractical" in one city 
and necessary in another.

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

But it is not just that the conflict among panels of this 
Court creates immense confusion and dismay among the general 
public. Disparate treatment of Tennessee's major cities in 
school desegregation cases before this Court unavoidably provokes

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deep hostility toward Negro plaintiffs and members of the class,
in those cities which have been required to desegregate, as the
public observes other districts excused from integrating. And
this is heightened by the rhetoric in the opinions which
can only fan the flames of racial hatred (talk of "wrecking
educational systems" to desegregate in Goss, of violations of

1/white students' rights by "forced busing" in Mapp). This case 
should be reviewed en banc to lower the level of the rhetoric 
and to mandate the observance of sound principles of constitu­
tional adjudication consistent with the mandates of the Supreme 
Court of the United States by all panels of this Court in the 
future.

4 7 The current distaste for "busing" when used to desegregate 
should be compared with the following comments made by the 
district judge who decided this case, in 1952 defending busing 
for segregation:

. . . 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 advantages equal 
to those furnished to white students [by 
busing them from Clinton to Knoxville to 
attend an all-black high school]. The 
riding of â bus by the student plaintiffs 
is a_ small contribution upon 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 3d. of Educ.. 104 F. Supp. 861, 870-71 (E.D.
Tenn. 1952) (emphasis added).

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Ill

The central holding of the panel was that the school
5/

board's proposals constituted the "greatest possible degree 
of actual desegregation taking into account the practicalities 
of the situation" (Davis v. Board of School Comm'rs, 402 U.S. 
33, 37 [1971]) which could be achieved in Knoxville. The only 
practicalities which could support this conclusion are the 
supposed financial difficulties of the school district and the 
city of Knoxville. Whatever reservations the district court or 
the panel may have had about the alternative plan presented by 
the plaintiffs (we discuss some of these below), these could

—' In response to the district court's 1970 opinion, the
school board paired Beardsley Jr. High and Rule Jr.-Sr. High 
School; it finally offered to pair Sam Hill and Lonsdale 
Elementary Schools, which had been mentioned by the U. S. Civil 
Rights Commission in 1967 as an outstanding example of segre­
gation perpetuated through school construction. See Racial 
Isolation in the Public Schools 65. Two elementary schools 
(Causler and Moses) were to be closed immediately, and a third 
(Huff) upon completion of a new facility (Green). Vocational 
programs at Fulton High and Austin-East High were to be paired 
and a minor high school zone change effectuated. The board 
proposed no affirmative redrawing of school zones to promote 
desegregation, either singly or in combination with such 
techniques as non-contiguous pairing or zoning. The plans pre­
pared by the administrative staff and the board's outside 
consultant, were explicitly designed not to explore or employ 
any busing for desegregation. See Brief for Appellants at p. 34. 
Dr. Stolee, plaintiffs' expert witness, estimated the results 
of the proposed changes (board plans contained no projections) 
as follows; one all-black elementary school would be eliminated 
by pairing, although both paired facilities would remain dis­
proportionately black. Results of the Rule-Beardsley pairing 
would be similar, on the secondary level. In general, the 
changes in racial composition of school enrollments in Knoxville 
would be minor.

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not justify the conclusion that the board had indeed maximized
desegregation consistent with the relevant practicalities.
For, as we said in our brief (pp. 35-36):

The district court's dissatisfaction with the 
Stolee plan as a "workable alternative to the 
Board's plan" (A. 1666) is certainly no ground 
for approving a scheme which uses no technique 
except minor zone alterations and two contiguous 
pairings. At the least, the court should have 
instructed the school board to submit another 
plan. Knoxville has no immunity from being 
required to use "any of the tools of modern life 
in carrying out [the] constitutional mandate." 
Kelley v. Metropolitan County Bd. of Educ.,
463 F.2d 732, 746-47 (6th Cir. 1972).

The thesis that claims of financial hardship excuse state 
authorities from taking all steps necessary to effect constitu-

6/ .  Vtional compliance is simply without legal support. School
districts like Knoxville, which have not heretofore operated 
bus systems, have been required to raise and spend the necessary 
capital to do so for desegregation, ahd the Supreme Court has 
not chosen to review such rulings. Brewer v. School Bd. of 
Norfolk, 456 F.2d 943 (4th Cir.), cert, denied, 406 U.S. 905 
(1972); United States v. Greenwood Municipal Separate School

17 Judge Lively explicitly declined to join this part of the 
per curiam opinion. His error was an overly narrow view of the 
district court's responsibilities as limited to approving 
either the board's plan or the plaintiffs', and the failure to 
appreciate the contribution of school segregation policies to 
residential patterns.
7/ In addition to its legal insufficiency, the financial 
claims on this record are sheer speculation. Counsel showed the 
panel at oral argument a newspaper clipping indicating a pro­
jected current Knoxville surplus of some $800,000 (attached 
hereto as Exhibit "B") to indicate the danger of building 
constitutional adjudication upon self-serving projections of 
public financial condition.

- 1 0 -



Dist., 460 F.2d 1205 (5th Cir. 1972); Brown v. Board of Educ.
of Bessemer, 464 F.2d 382 (5th Cir.), cert, denied, 409 U.S.
981 (1972); Northcross v. Board of Educ. of Memphis, 466 F.2d 
890 (6th Cir. 1972), cert, denied, 41 U.S.L.W. 3477 (February 20, 
1973) ; cjf. Bradley v. School Bd. of Richmond, 325 F. Supp. 828, 846- 
47 (E.D. Va. 1971); Kelley v. Metropolitan County Bd. of Educ., 
supra, 463 F.2d at 745.

The only "practicalities" to which the Supreme Court
referred in Swann were the time and distance of the proposed
bus ride and the age of the student. The rule announced by
the per curiam opinion in this case would make desegregation

§ /
contingent upon a locality's assessment of its priorities —  in 
effect subjecting constitutional rights to a referendum. That 
is clearly wrong and should be corrected by the full Court.

The per curiam opinion also characterizes the plaintiffs' 
alternate plan as "the quota system" because Dr. Stolee said 
he made the flexible assumption, based on Knoxville's overall 
16.5% black ratio, that truly desegregated schools should 
probably range between 10% and 30% black. What else does using 
the system-wide ratio as a "starting point," or attempting to 
avoid "substantially disproportionate" schools (Swann) mean?
The same contentions were rejected by this Court in the Nashville

17“  The retiring Mayor of Knoxville stated at the 1972 hearings 
that the city has never had sufficient funds to carry out its 
program needs but advised against postponing constitutional 
compliance until the city's revenue problems were worked out 
because, in his opinion, that day would never come!

1 1 -



case, Kelley, supra; they should be rejected here, particularly 
since under the plan Dr. Stolee actually drew, individual 
schools were projected to range from 8.6% black to 39.1% black.

The panel enunciates the "clearly erroneous" doctrine 
but fails to apply it. We urge the Court to study the briefs; 
the evidence summarized therein and fully supported by record 
citations indicates the utter lack of support for many of the 
district court findings adopted by the panel. For example, 
the panel repeats the lower court's condemnation of Dr. Stolee 
for not using the pupil locator map in preparing his plan. Yet 
the court itself found the map inaccurate —  and the school 
board's own consultant declined to use it for this reason. See 
Brief for Appellants, p. 33. Likewise repeated is the district 
court's claim that Dr. Stolee's plan contained serious school 
capacity errors. What the evidence shows is that after Dr. 
Stolee had prepared his plan, Assistant Superintendent Bedelle 
stated that the school system had given plaintiffs erroneous 
capacity figures in answers to interrogatories because some 
classrooms were being used for PTA meeting rooms, etc. Bedelle 
admitted, however, that the space could be used for pupils if 
desegregation was a priority. See Brief for Appellants, at p.

9 /9, n. 11.

—/ The district court's criticism related to students desiring 
to participate in extra-curricular activities, also quoted by 
the panel, should again be compared to its 1952 opinion upholding 
segregation;

The Negro students say that, because they have 
to catch their bus for home after school, they 
are unable to engage in after-school activities,

- 1 2 -



Plaintiffs have been seeking a dispassionate review of
the evidence in this case since 1969. We urge the Court to 
provide it by granting rehearing en banc.

IV
Finally, we note that the panel incorrectly refused to 

take up the question of attorneys' fees under § 718 of the 
Education Amendments of 1972. The "affirmative actions" which 
the panel finds the school board to have taken to bring about 
desegregation, including the 1971 amendments to its desegrega­
tion plan, came about only because plaintiffs vigorously pressed 
this litigation. Thus, plaintiffs meet the portion of the 
section requiring that "the proceedings were necessary to bring 
about compliance [with the constitutional obligations of the 
board]." Plaintiffs did not "prevail" only in the sense that 
the district court refused to grant as much relief as they 
sought; but they prevailed in the sense of moving the board's 
desegregation plans a step forward. Accordingly, the panel

(n. 9 cont'd)
such as football and basketball. Buses do 
not stay after school to accommodate white 
children, but those who are determined to 
participate in after-school activities 
provide their own transportation home ....

MeSwain v. County Bd. of Educ., supra, 104 F. Supp. at 864.
See also, Brief for Appellants at p. 36.

We note finally the district court's criticism, repeated by 
the panel, of Dr. Stolee as having a "manifest interest in this 
type of case" because he believes in desegregation and is paid 
for testifying as is any other expert witness. Who are plaintiffs 
to engage in these cases —  educators who have openly expressed 
hostility to school desegregation? Perhaps the difficulty with 
this case in the district court is that witnesses sympathetic to 
desegregation have been regarded as incapable of objective and 
honest testimony.

- 1 3 -



should have passed upon the claims for attorneys' fees.

CONCLUSION
For the foregoing reasons, appellants respectfully 

submit that this Court should grant rehearing eii banc of the 
March 29, 1973 panel decision in these appeals, and establish a 
schedule for oral argument in order that relief may be effect­
uated by the 1973-74 school year.

Respectfully submitted.

C ^ u k u A .CARL A. CCCOWAN
2212 Vine Avenue 
Knoxville, Tennessee 37915

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
JOHN BUTLER

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants, 
Petitioners for Rehearing

CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of April, 1973, I 

served two copies of the foregoing Petition for Rehearing En 
Banc upon counsel for the appellees herein, by depositing same 
in the United States Mail, first-class postage prepaid, addressed 
to each as follows:

Sam F. Fowler, Jr., Esq.
1412 Hamilton National Bank Bldg. 
Knoxville, Tennessee 37902

W. P. Boone Dougherty, Esq.
1200 Hamilton National Bank Bldg. 
Knoxville_j?ennessee 37902

- 1 4 -

Attorney for



Nos. 72-1766, -1767

UNITED STATES COURT OF APPEALS

T iik Board of E ducation of T he for the Eastern Dis- 
C ity of K noxville, T ennessee , trict of Tennessee.
ET AL.,

Defendants-Appellees.

Decided and Filed March 29, 1973.

Before W eick, M iller  and L ively , Circuit Judges.

Per C uriam . This case is before us for the fifth time, and 
was heard by the panel after plaintiffs-appellants’ motion for 
an en bane hearing was denied. The history of the litigation 
is adequately portrayed in the previous opinion of this Court 
reported in 444 F.2d 632 (6th Cir. 1971), and the opinions of 
the District Court cited therein, and need not be repeated at 
length here. Suffice it to say that as far back as 1967 the 
District Court held that Knoxville had achieved a unitary 
school system. 270 F.Supp. 903 at 918 (1967). We affirmed 
in 406 F.2d 1183 (1969). No attempt was made to obtain 
Supreme Court review of this decision and it became final.

A few months later the plaintiffs filed in the District Court 
a motion for immediate relief, grounded upon Alexander v. 
Holmes Co. Bd. of Education, 396 U.S. 19 (1969). The District 
Court conducted another evidentiary hearing and again held

FOR IHt SIXTH CIRCUIT

J osephine G oss, et  a l .,
Plaintiffs-Appellants,

Appea l  from United 
States District Court



that Knoxville was operating under a unitary system. 320 F. 
Supp. 549 (1970). Plaintiffs again appealed.

During pendency of the appeal, Swann v. Charlotte-Meck­
lenburg Bd. of Educ., 402 U.S. 1 (1971), and other companion 
cases were decided. Relying on these cases, the plaintiffs filed a 
motion in that appeal and in other appeals then pending, ask­
ing that we command the District Court to order the Board 
of Education to adopt a number of elaborate rules and direc­
tives to accomplish desegregation. These were apparently 
based on District Judge McMillan’s order in Swann, with some 
extensions and elaborations.

In our opinion reported in 444 F.2d 632, referring to Judge 
McMillan’s opinions, we stated:

The District Court opinions reflect in observable meas- 
ur< Judge McMillan s doubts as to the genuineness of 
the school authorities concern for the constitutional rights 
of both the black and white school children of Charlotte 
and Mecklenburg Counties. The broadness of their com­
mands bespeak some motivation of reprisal. In the long 
history of the litigation we deal with, we find no such 
bitter contesting between the school authorities of Knox­
ville and the court, nor between the plaintiffs and the 
sehool authorities. We, therefore, initially observe that 
while the Supreme Court found legally tolerable what 
may be referred to as the Mecklenburg rule, it by no 
means directed that its commands be obeyed everywhere 
We;  therefore, conclude that there is nothing in Stearin 
(19,1) that requires us to announce a fiat imposing 
on Knoxville the identical pattern fashioned by Judge 
McMillan for his case.” 444 F.2d at 636.

2 Goss, et al. v. Bd. of Educ., Knoxville Nos. 72rl766-67

We further stated:

Swann v. Charlotte-Mecklcnburg, supra, [402 U.S. 1 
(1971)] . . . approved a District Court ordered plan for 
the busing of children to improve the racial mix in the 
involved school system. It did not, however, direct 
that a plan of transporting school children must be a part



Nos. 72-1766-67 Goss, et ul. v. lid. of Educ., Knoxville 3

of every new plan for improvement of the objective of 
desegregation.” 444 F.2d at 637.

VVe remanded to the District Court lor consideration in light 
of Swann and other relevant Supreme Court decisions an­
nounced on April 20, 1971. The plaintiffs filed a motion with 
Circuit Justice Stewart for immediate relief, which was denied.

District Judge Taylor, upon the remand, conducted another 
evidentiary hearing which lasted three days and wrote a com­
prehensive memorandum opinion of forty-nine pages which 
he adopted as findings of fact and conclusions of law. It 
is reported in 340 F.2d 711 (1972). He included therein 
the accomplishments of the Board and its good faith efforts to 
comply with his orders. The Board had prepared a pupil lo­
cator map in compliance with our suggestion.

The composition of 64 schools in the system for the school 
year 1971-1972 consisted of 34,876 children of which 29,109 
were white and 5,767 or 16.5% were black. The court stated:

“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 enrollment, attending 48 
integrated schools. All schools have integrated stalls.

This record is indicative ol the Knoxville School au­
thorities' effort to comply with the judicial directive to 
desegregate. It is in sharp contrast with the situation 
in Swann v. Charlotte-Meeklenburg 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. Coun­
ty School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 
2d 716 (1968), and its companion cases] require.’ The 
desegregation plan in that case had a ‘free transfer pro­
vision’ which rendered the plan illusory (Free transfer 
provisions were declared unconstitutional in Monroe 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.” 340 F.Supp. at 717.



4 Goss, et al. v. Bd. of Edtic., Knoxville Nos. 72-1766-67

The court further stated:

“In the summer of 1971, the Board, iu an effort to com­
ply with the new guidelines laid down in Swann v. 
Charlotte-Mecklenlnirg Board of Education, amended its 
desegregation plan to establish the following policies:

1. Authorized the creation and maintenance of a pupil 
locator map.

2. Established a policy of assigning faculty and sup­
porting 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 
ol transfers: (1) vocational or special education transfers 
and (2) majority to minority race transfers. These trans­
fers must be renewed annually and will l>c 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;
(b ) Move the severely mentally retarded pro­

gram at Beaumont and the pre-school program at 
Moses to Canslcr; and close the regular program at 
C'ausler by div iding its regular pupils between Beau­
mont and West View (West View is l(X)!<i white);

(c) Move the regular program at Moses to May­
nard and expand the special education program at 
Moses;

( d) Organize Beardsley as a two-year junior high 
and Rule as a four-year senior high serv ing the pres­
ent 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

!
;!



Nos. 72-1766-67 ( loss, ct <tl. v. lid. of Edttc., Knoxville 5

expenses of all students who transfer under the majority 
to minority transfer provision. See -102 U.S., at 26-27, 
91 S.Ct. 1267, 28 L.Ed.2d 554." 310 E.Supp. at 719.

The Board, after adopting the zone changes, retained Dr. 
Charles Trotter of the University of Tennessee to prepare a 
school zone map from the pupil locater data that would 
achieve the maximum racial mix without bussing children. 
As to Dr. Trotter’s map. the court stated.

“Except lor two major differences, his zone map is es­
sentially 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 safety factors. In order to get from Nor­
wood to Rule it is necessary to make two crossings of an 
interstate highway at a cloverleaf with no crosswalks. In 
addition, if zoned to Rule these children would live less 
than one and one-half miles Irom the school and would 
not be eligible for County transportation. 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 residential concentration 
of blacks in Knoxville 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 assignment system. He said that improvement on 
his plan would require massive cross-town bussing.” 340 
F.Supp. at 720.

The plaintiffs retained Dr. Michael Stolee who presented 
a plan which would require massive bussing of from 8.000 to 
10,000 children and the acquisition of 80 busses. While Dr. 
Stolee estimated the annual cost of only $190,000 a year, wit­
nesses of the Board placed the cost at from $300,000 to S500,- 
000 per year depending on whether the school children are



6 Goss, ct ul. v. Bd. of Educ., Knoxville Nos. 72-1766-67

picked up on the street or at schools. The Stolee plan also 
provided for extensive changes in the manner in which certain 
schools would he utilized, and for changes in equipment. No 
one estimated the cost ol these changes.

Dr. Stolee did agree, however, that Dr. Trotter’s plan was 
the best plan possible for mixing the students without bussing.

It was Dr. Stolee’s view that a school system containing 
16.5% black children should have a 10% to 30% enrollment 
ol blacks in each school in the system in order to be deseg­
regated. This is the quota system. He was of the opinion 
that Knoxville was not desegregated because only eight of its 
schools meet this test. lie testified it would not be possible 
to have a good desegregation plan without bussing.

The Court found that Dr. Stolee in the preparation of his 
plan relied on current enrollment figures for each school and 
used existing elementary school boundaries. He did not use 
the pupil locator map which the Board provided at our sug­
gestion although it was available to him. In this respect the 
Court stated:

“The Court has studied the pupil locator data and 
realizes that a plan based on that information would re­
quire time-consuming, tedious, and exhausting effort. Dr. 
Stolee’s failure to use this data substantially reduces the 
weight of his testimony.” 340 F.Supp. at 721.

The court further stated:

“After careful study of the Stolee plan, we are con­
vinced 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 devote 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.

|



Nos. 72-1766-67 Goss, et al. v. Bd. of Educ., Knoxville 7

If implemented his plan would disrupt the Knoxville 
Scliool system and the lives oi parents and children in 
many households.

In addition to the patent weaknesses in the Stolce 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 private transportation who are bussed 
out of their neighborhoods and who want to participate 
in alter 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. Negoti­
ation of these arrangements could take many' months.

(4) By removing the ninth grade from certain junior 
high schools, the plan deprives these schools of state funds 
for guidance counselors.” 340 F.Supp. at 724.

In the evidentiary hearing evidence was offered that the 
City of Knoxville, which is the source of the Board’s funds, 
is in financial straits; that a $400,000 deficit in the City’s 
budget carried over into 1972. The Mayor estimated that the 
School Board’s budget has a deficit of about $800,000. The 
School Board already owes the city $600,000 and cannot pay 
it. Ninety percent of the Board’s budget is consumed for 
salaries.

Davis v. School Comm’rs of Mobile Co., 402 U.S. 33, 37 
(1971), required the Board to provide “greatest possible de­
gree of actual desegregation taking into account the practi­
calities of the situation.” (Emphasis added.) The Board has 
done just that as the District Court found. The Board was



8 Goss, et al. v. Bd. of Educ., Knoxville Nos. 72-1766-67

not required to wreck the educational system in order to pro­
vide for massive bussing.

One other thing should be mentioned. The District Court 
found:

“The Knoxville School Board has not excluded any pupil 
from any school, directly or indirectly, on account of race. 
Knoxville’s residential segregation has contributed ‘to dis­
proportionate racial concentrations in some schools,’ but 
this is not the fault of the School Board.” 340 F.Supp. at 
728.

In the evaluation of the testimony of expert witnesses, we 
ought not disturb the District Judge’s determination unless 
he has abused his discretion, which we do not find.

One thing which is clear from Brown l,' Brown U 7 and 
Swann and related cases is that District Judges are granted 
wide authority and discretion to fashion equitable remedies. 
In following these decisions and upon careful consideration of 
the record, it is our opinion that the findings of fact of the 
District Court are supported by substantial evidence and are 
not clearly erroneous.

We did not say in our remand that the District Court should 
order bussing. In fact, we said that Swatin did not direct 
that a plan of transporting children must be a part of every 
new plan for improvement of tlu- objective of desegregation.” 
We regarded bussing as only a tool but not a mandatory tool in 
every school desegregation case.

We remanded for consideration in the light of Swann, and 
related cases. In Judge Taylor’s well-reasoned opinion, he 
did exactly that and we think he correctly applied the law of 
those cases. Judge Taylor did carefully consider bussing and 
determined that it was impractical and not required.

1 Brown I, 347 U.S. 483 (1954).

2 Brown II, 349 U.S. 294 (1955).

i



Nos. 72-1766-67 Goss, et al. v. Bd. of Educ., Knoxville 9

In the concluding paragraph of his opinion, Judge Taylor
said:

N<» <liilil is r« i  Imlrtl l imn miv '•< ImmiI in | (iC Kii"\ 
villc school system because 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 defined in Green. Disproportionate racial 
mixtures in some of the Knoxville schools are the result 
of residential patterns. Swann is clear that the school au­
thorities arc 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. 
Knoxville is in compliance with Swann. Accordingly, 
Knoxville is operating a unitary school system consistent 
with constitutional requirements.” 340 F.Supp. at 729.

We do not consider attorneys’ fees since plaintiff did not 
prevail in the District Court or here. Moreover, there was no 
wilful refusal of the Board to comply with orders of the Court.

Affirmed.



10 Goss, et al. v. Bd. of Educ., Knoxville Nos. 72-1766-67

L ively , Circuit Judge, concurring:
1 would affirm the judgment of the District Court because it 

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 Ik*fore Judge Taylor upon remand from 
this Court was quite different from that faced by Judge Mc­
Millan in Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1 (1971). In this case the District Judge had two 
plans presented to him for further desegregation of the Knox­
ville School system. As his opinion demonstrates, there were 
a number of reasons for giving less weight to the plan of­
fered 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 evidence 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 Supreme 
Court recognized that there are frequently concentrations of 
minority groups in one or more parts of a metropolitan area 
and the existence of a small number of racially identifiable 
schools in these areas is not, in and of itself, a sign that a 
dual system exists.

The school authorities have taken affirmative action to 
improve the racial mix of the schools, as required by our 
previous decision. Furthermore, the appellee presented evi­
dence from which the Court was justified in finding that no 
plan involving the transportation of pupils between noil-con­
tiguous zones would be feasible at this time. However, I 
do not believe that the inconclusive evidence in this record 
concerning the financial condition of the City of Knoxville 
provides sufficient reason for failing to order the transporta­
tion of pupils if the Board of Education of Knoxville were 
found to be operating a dual public school system which re­
quired busing in order to become a unitary system.



Nos. 72-1766-67 Goss, et al. v. Bd. of Educ., Knoxville 11

Having found that a unitary school system exists, the Dis­
trict Court acted within its discretion in refusing to adopt 
a plan which would require busing of a large numlx'r 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 command to desegre­
gate schools does not mean that every school in every com­
munity must always reflect the racial composition of the school 
system as a whole.”

I concur in the result for the reasons set forth herein.



1

Che UnoxUille Journal ★  ★  ★  ★  ★

City Edition
«

Price JO Cents

Knoxville, Tennessee, SaturAy, January 13,1973 14 Pages :: One Section

City Surplus Over $800,000
‘ By MOODY CONNELL

The city’s first budget surplus 
Since 1963, between $800,000 and 
$900,000, was announced Friday 

t by Mayor Kyle Testerman.
Testerman added that all defi­

cits had been considered, even a 
predicted*$23,000 loss reported 
for 1972 by Knoxville Transit 
Authority.

That loss, be reported, would

not absorb the surplus and "al­
ready has been accounted for."

Despite inflation, Knoxville’s 
chief executive noted "efficien­
cy has been the really call for 
every departmental director’’ as 
reflected by the huge surplus.

Although the 1973 city budget 
is incomplete, Testerman said 
he will work "to further in-

fyt+iBir i(b

crease the ^ficiency,”  seek bet­
ter education nd move ahead in 
crime prevqiuon and law en­
forcement." !

Cop -traq| 
on a <?rai 
gram, bettt 
tion and advanced treatment of 
sewage, he c^itinued.

Testerman^ credited Safety

bn wi \:us also 
pd "siuw«^alks pro­

traffic coordina-

f l

Director Duane Ausetts with 
saving the city $636,728 in his su­
pervision of the combined police 
and fire department budgets.

The mayor predicted city 
homeowners will definitely feel 
a decided s h i f t  downward in 
property tax assessments if 
Question Three, which lowers 
the per centage rate in property 
classification, is held legal in 
pending court suits.

"Substantially higher taxes”  
will be passed on to businesses 
and commercial property, he 
said.

While behind in processing 
data on new buildings under 
construction in 1972 that weren’t 
added to the tax rolls for partial 
assessments for 1973 revenues, 
Testerman said they will be in­
cluded.

"That’s revenue and any reve­
nue lurking out in the dark" will 
be added to the tax rolls this 
year, Testerman commented.

The list of new building con­
struction gathered when city 
building permits are issued wer­
en’t processed last year after a 
clerk handling those duties was 
transferred to a new position.

Testerman said he might still 
use the reappraisal study com­
piled by Cole, Layer & Tramble 
Co. for setting assessments on 
city properties for taxes.