Clemons v. Hillsboro, OH Board of Education Appendix to Appellants' Brief

    UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

No. 81-5370

ROBERT W. KELLEY, et al. ,
Plaintiffs-Appellants,

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

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFFS-APPELLANTS

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37201

JACK GREENBERG JAMES M. NABRIT, III 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



I N D E X

Questions Presented .................................  1
Statement ............................................ 2

A. Prior Proceedings ...........................  2
B. The 1971 Remedial Order .....................  6
C. Proceedings Since the July 1971 Remedial Order 11

1. 1972-1978 Proceedings ...................  11
'2. 1979-1981 Proceedings ...................  18

D. The Board's 1981 Plan .......................  24
Argument ............................................. 30

I. The Duty of Defendant School Board and the 
District Court Was "'To Come Forward With a 
Plan That Promises Realistically to Work ...
Now ... Until It Is Clear That State-Imposed 
Segregation Has Been Completely Removed.'" .... 32

II. The District Court's Remedial Order Per­
petuated or Reestablished a Dual System in 
Violation of the Constitution.................  36
A. The Order Resegregated K-4 Elementary

Schools.................................... 36
B. The Order's 15% Minimum Presence Standard

Is Resegregative..........................  41
C. The Order Imposes a Disproportionate 

Burden of Busing on Black Middle School
Students..................................  45

D. The Failure to Retain and Develop Pearl
High School as a Comprehensive Senior High 
School Is Discriminatory and Impedes Desegregation.............................  47

III. The District Court's Failure to Consider the
Issues of Faculty and Staff Hiring and Assign­
ment, Defendant's Contempt, and Plaintiffs'
1975 Motion for Counsel Fees and ExpensesWas Erroneous.......................    4g

Conclusion ...............................    50

Page

i



Table of Cases

Adams v. United States, 620 F .2d 1277 (8th Cir.
1980)   38

Alexander v. Holmes County Board of Education,
369 U.S. 19 (1969)   5

Anderson v. Dougherty County Board of Education,
609 F . 2d 225 (5th Cir. 1980)   36,4-1

Arthur v. Nyquist, 636 F. 2d 905 (2d Cir. 1981) ..... 4-5
Arvizu v. Waco Independent School District,

4-95 ' F . 2d 4-99 (55h Cir.); 4-96 F . 2d 1309 (5th
Cir. 1972)   38,25

Brown v. Board of Education, 327 U.S. 283 (1952)   38
Brown v. Board of Education, 329 U.S. 292 (1952)   38
Columbus Board of Education v. Penick, 223 U.S. 229 

(1979), affirming, 583 F .2d 787 (6th Cir.
1978)   passim

Davis v. Board of School Commissioners, 202 U.S.
33 (1971)   38,23

Dayton Board of Education v. Brinkman, 223 U.S.
526 (1979) .................................... 32,28

Evans v. Buchanan, 555 F.2d 373 (3d Cir. 1977),
aff'g, 216 F. Supp. 328 (D. Del. 1976)   38

Flax v. Potts, 262 F . 2d 865 (5th Cir. 1972)   37
Geier v. University of Tennessee, 597 F.2d 1056 

(6th Cir. 1979), cert, denied, 222 U.S.
886 (1980) .................................... 28

Goss v. Board of Education, 391 U.S. 231 (1963) .....  5
Green v. County Board of Education, 391 U.S. 231

(1968)   5,32,32,20
Haney v. County Board of Education, 229 F.2d 362

(8th Cir. 1970)   29
Haycraft v. Board of Education, 585 F.2d 803 (6th

Cir. 1978), cert, denied, 223 U.S. 915 (1979) .... 29

Page

- li -



Higgins v. Board of Education, 508 F.2d 779 (6th
Cir. 1974-)   40,43

Keyes v. School District No. 1, 521 F.2d 465
(10th Cir. 1975)   38

Lee v. Macon County Board of Education, 616 F.2d
805 (5th Cir. 1980)   39,48

Lee v. Tuscaloosa City School System, 576 F .2d 29
(5th Cir. 1978)   41

McPherson v. School District No. 186, 426 F. Supp.
173 (S.D. 111. 1976)   38

Milliken v. Bradley, 433 U.S. 267 (197 7) ............  37
Mills v. Polk County Board of Public Inst., 575

F . 2d 1146 (5th Cir. 1978) .......................  37
Monroe v. Board of Commissioners, 391 U.S. 450 (1968) 40,45
Monroe v. Board of Commissioners, 581 F.2d 581(6th Cir. 1978) .................................  49
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976) .... 38
NAACP v. Lansing Board of Education, 559 F.2d 1042

(6th Cir.), cert. denied, 434 U.S. 997 (1977) .... 45
Penick v. Columbus Board of Education, 583 F.2d 787

(6th Cir. 1978), affirmed, 443 U.S. 449 (1979) ... 43
Raney v. Board of Education, 391 U.S. 443 (1968) .... 35
Swann v. Charlotte-Mecklenburg Board of Education,402 U.S. 1 (1972) ...............................  passim
United States v. Board of Education of Valdosta,

576 F.2d 37 (5th Cir.), cert, denied, 439
U.S. 1007 (1978) ............ .................... 36

United States v. Columbus Municipal Separate School
District, 558 F. 2d 228 (5th Cir. 1977) ..........  45

United States v. DeSoto Parish School Bd., 574 F.2d
804 (5th Cir.), cert. denied, 439 U.S. 982 36

United States v. School District of City of Ferndale,
499 F. Supp. 367 (E.D. Mich. 1980) ..............  45

Page

- iii -



Page
United States v. South Park Ind. School Dist.,

566 F. 2d 1221 (5th Cir.), cert, denied, 4-39
U.S. 1007 (1978)   36

United States v. State of Texas, 498 F. Supp. 1356
(E.D. Tex. 1980)   38,46

United States v. Texas Education Agency, 532 F.2d 
380 (5th Cir.), remanded on other grounds,
429 U.S. 990 (1976), cert, denied, 443 U.S.
915 (1979)   38,40

United States v. Texas Education Agency, 467 F.2d
848 (5th Cir. 1972)   48

IV



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 81-5370

ROBERT W. KELLEY, et al.,
Plaint iffs-Appellants, 

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

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFFS-APPELLANTS

QUESTIONS PRESENTED

1. Whether the district court erred in approving and 
substituting, for a comprehensive school desegregation plan 
consistent with Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1 (1971), and other authority, previously ordered 
by the district court and approved by this Court, a "different 
remedy," which, on its face,

(a) substantially resegregates grades K-4;
(b) imposes a 15% either race minimum presence 

as a desegregation standard;



(c) imposes a disproportionate burden of trans­
portation on black school children in 
grades 5-8; and

(d) fails to retain and develop Pearl High School, the only remaining historically 
black high school, as a comprehensive 
senior high school.

2. Whether the district court erred in postponing in­
definitely consideration of the issues of faculty and staff 
hiring and assignment, defendants' contempt of provisions of the 
prior desegregation plan, and plaintiffs' 1975 motion for counsel 
fees and expenses.

STATEMENT V
A. Prior Proceedings

This school desegregation action was originally filed by
black school children in 1955 to enjoin state imposed racial
segregation in the public schools of Nashville, Tennessee, "on
the heels of the United States Supreme Court's decision in

2/Brown v. Board of Education, 347 U.S. 483 (1954)." Kelley 
v. Board of Education of the City of Nashville, M.D. Tenn., Civ. 
No. 2904. After the board conceded the unenforceability of 
State constitutional and statutory separate school provisions, 
a three-judge court was dissolved and the case remanded to the 
district court for the framing of relief. 139 F. Supp. 578

1/ The history of the litigation and its relationship to developing school desegregation law through 1971 is set forth 
in the Court's 1972 opinion, 463 F.2d 732, 735-740.

References to the Record on Appeal transmitted on October 10, 
1981 are to "R.", to the Record on Appeal transmitted on August 
25, 1981 are to "S.R.", and to the Joint Appendix are to "A."
2/ 463 F.2d at 375.

2



(1956). In January 1957, the court approved a desegregation
plan assigning first graders beginning in 1957-58 to schools
on the basis of geographic attendance zones subject to the
parents' rights to transfer the student to another school
attended by those of the student's own race. 2 Race Rel. L.

3/Rep. 21. The court required a plan for the remaining 
grades by the end of 1 957. I_d. In the interim, the State 
enacted legislation authorizing "separate schools for white and 
negro children whose parents, legal custodians or guardians 
voluntarily elect that such children attend school with members 
of their own race," which the court declared facially unconstitu­
tional. 2 Race Rel. L. Rep. 970 (1957). Nonetheless, the board 
moved to dismiss the action in reliance on administrative remedy 
provisions of the legislation, and for approval of a desegrega­
tion plan embodying the statute's provisions. The court denied 
the motions, and gave the board a further opportunity to submit

3/ The plan provided, in pertinent part, that:
5. The following will be regarded as some of

the valid conditions to support application 
for transfer:
(a) When a white student would otherwise 

be required to attend a school previ­
ously serving colored students only.

(b) When a colored student would otherwise 
be required to attend a school previ­
ously serving white students only.

(c) When a student would otherwise be re­
quired to attend a school where the 
majority of students of that school 
or in his or her grade are of a dif­
ferent race.

3



a plan. 159 F. Supp. 272 (1958). The board then submitted a
plan calling for desegregation of an additional grade each
school year beginning with the second grade in 1958-59, subject
to the same racial transfer provisions previously approved. The
plan was approved over plaintiffs' objection, 3 Race Rel. L.
Rep. 651 (1958), affirmed, 270 F.2d 209 (6th Cir.), cert, denied,

4/361 U.S. 924 (1959). Minimal desegregation actually resulted.
In 1960, a parallel action was filed to desegregated the 

Davidson County schools. Maxwell v. County Board of Education 
of Davidson County, M.D. Tenn., Civ. No. 2956. A grade-a-year 
desegregation plan identical to the Nashville plan was ordered, 
beginning with the first four grades in January 1961. 204 F. Supp.
768 (1960), affirmed, 301 F.2d 828 (6th Cir. 1962). The Supreme 
Court, however, held that the transfer provisions "promote dis­
crimination and are therefore invalid." Goss v. Board of Edu-

5/cation of Knoxville, 373 U.S. 683, 688 (1963).

4/ [B]ecause of residential segregation, only 115
of the 1,400 Negro students in the first grade 
were eligible to attend schools previously 
attended only by white students, under the zoning 
system based on residence; and only 55 of the 
2,000 white students in the first grade were eli­
gible to attend schools previously attended only by Negro students. All 55 of the white students 
were through their parents, granted transfer to 
white schools, and 105 of the 115 Negro students 
were, through their parents, granted transfers to Negro schools.

270 F.2d at 215.
5/ In 1963, the Nashville and Davidson County school systems 
were consolidated as part of a general consolidation of the City 
and County into one metropolitan government, and the Metropol­
itan County Board of Education of Nashville and Davidson County 
(hereinafter "board") was substituted as defendant. R. 1.

4



In 1968, the Supreme Court decided " [t]he burden of a 
school board today is to come forward with a plan that promises 
realistically to work, and promises realistically to work now," 
Green v. County School Board of Kent County, 391 U.S 430, 438: 
see Alexander v. Holmes County Board of Education, 369 U.S. 19 
(1969). Thereafter, in November 1969, plaintiffs filed a
motion for immediate relief. R. 7, A. __. At that time,
fourteen years after the action was filed, 81% of white pupils 
attended schools over 90% white, while 62% of black pupils 
attended schools over 90% black. 317 F. Supp. 980, 987 n. 4.

The district court preliminarily enjoined all school con­
struction and expansion, and proceeded to consider whether the 
board was "properly fulfilling its affirmative duty to take all 
necessary steps to facilitate the immediate conversion of the 
Metropolitan Nashville Davidson County public schools to a unitary 
school system in which racial discrimination will be totally
eliminated." 317 F. Supp. at 985. The court specifically found

6/
that "defendant's inaction in failing to alter [zone] lines 
amounts to a constitutional violation just as certainly as if

5/ continued
In 1968, the board was found to have violated the due pro­cess rights of students at black Cameron High School in sus­

pending the school from all interscholastic athletic competi­
tion for a year. 293 F. Supp. 485.
6/ Most school construction and drawing of zone lines was done prior to Brown v. Board of Education with the aim of maintaining 
segregation, and there were numerous examples of zones lines 
drawn to perpetuate segregation in contiguous attendance zones 
at the elementary, junior high and high school levels. 317 F. 
Supp. at 987-989.

5



defendant itself and purposefully gerrymandered the zones to 
prevent integration. 317 F. Supp. at 990. The court also found 
that portable classrooms were used to maintain segregation, 
that black teachers were being disproportionately assigned 
to identifiable black schools, and that the board's construction 
of new schools was designed to maintain segregation. 317 F.
Supp. at 989, 991-992.

The district court then proceeded to frame a remedy for
7/1971-72, after this Court vacated a stay. 436 F.2d 856 (1970).

B. The 1971 Remedial Order
During the remedial proceedings, the Supreme Court decided

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1
(1971), whose principles the district court's memorandum opinion

8/of June 28, 1971 , R. 23, A. __, expressly sought to apply.

7/ District Judge William E. Miller, who presided over the first 16 years of the litigation, was replaced by District 
Judge L. Clure Morton in 1971.
8>/ The court summarized the requirements of Swann as follows: 

Objective
"The objective today remains to eliminate 

from public schools all vestiges of state- 
imposed segregation." Swann v. Charlotte- 
Mecklenburg Board of Education, [402 U.S. 1,
15 (1971 ). ] .

The Supreme Court has stated that "[t]he 
objective is to dismantle the dual school 
system," Swann, supra, at [28], "... to elim­
inate invidious racial distinctions," Swann, 
supra, at [18], and "... to achieve the great­
est possible degree of actual desegregation, 
taking into account the practicalities of the 
situation. " Davis v. Board of School Com­
missioners , [402 U.S. 33, 37 (1971).]

6



Three desegregation plans were considered. R. 23, pp. 2-8, A.
__. Defendant board, while accepting an "ideal racial ratio of
an integrated school as one which is 15% to 35% black" in a 25% 
black system, filed a plan which left the elementary schools 
significantly unchanged and six of 38 secondary schools majority 
black. The court rejected the plan as not constitutionally 
sufficient. Plaintiffs filed a "model" or preliminary plan 
which used clustering and pairing, using both contiguous and 
non-contiguous zoning, to achieve a 15% - 35% black representa­
tion in almost all elementary schools, and all the secondary 
schools. While observing that integration would be achieved, 
the court rejected plaintiffs' plan on grounds of practicality.

8/ continued 
Test

A plan "that promises realistically to 
work, and promises realistically to work 
now" is required. Davis, supra, at [38] 
quoting Green v. County School Board, 391 U.S. 431 (1968). A plan "is to be judged
by its effectiveness." Swann supra, at 
[26]; Davis, supra, at [38]. A plan "is not 
acceptable simply because it appears to be 
neutral." Swann, supra, at [28].
Methods to Accomplish Objective

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

R. 23, p. 6, A.
7



The third plan was submitted, at the request of the court, by 
the U.S. Department of Health, Education and Welfare. That 
plan, as amended, which the court approved, had the following 
features: At the elementary level, five inner city schools would
be closed, 74 schools were projected as 16% - 41% black and 22 
schools in the outer reaches of the county would not be subject 
to desegregation requirements and would remain 89-100% white.
At the secondary level, 18 of 25 junior high schools were 
projected as 20% - 40% black and seven junior high schools, on 
the outskirts and excluded from desegregation, would remain 
90-100% white. Of 18 high schools, 11 were projected as 18% - 
44% black, and seven were excluded, 6 remaining virtually all 
white and one 89% white. Some high schools were converted to 
junior high schools and two inner city high schools closed. 
Plaintiffs objected to the HEW plan as being not the most ef­
fective plan possible and because it imposed a disproportionate 
burden on black students, busing only black students in grades
1-4 and closing only predominantly black schools. R. 20, A. __.

The court permitted the construction of a comprehensive 
high school in the northeast Joelton area in an area halfway 
betwen black and white populations, but denied permission 
to build a proposed northwest Goodlettsville comprehensive high
school in an all white community far from black areas. R. 23,

9/pp. 15-16, A. __-__. An application to acquire additional

9/ The court referred to Briley Parkway as "generally the divider between the inner-city pupils and outer-county pupils." 
Id. The court, however, denied the request to expand another 
high school, Hillsboro, although it was .6 miles from Briley 
Parkway. R. 74, Vol. 1, p. 561. See infra.

8



property for Hillsboro school, in south central Nashville, to 
transfer Hillsboro into a comprehensive high school was "denied 
for the same reasons that the Goodlettsville school was not 
approved". Id.

The court concluded with specific instructions restricting
the use of portable classrooms, expansion of schools on the
outskirts of the County excluded from desegregation requirements
and new school construction without prior court approval.

Portable classrooms, referred to generally as "port­
ables," have been used by the Board to house students 
in schools which were all-white or had received only 
token integration when there were vacant rooms in 
predominantly black schools. In effect, portables 
have been used to maintain segregation. In the future, portables shall be used only to achieve 
integration and the Board is hereby so enjoined.

In the plan adopted by the Court, certain 
schools in the outlying areas of the school district 
remain virtually all white. By reason of the past 
conduct of the Board the Court hereby sets forth the 
following restrictions to prevent these schools from 
becoming vehicles of resegregation. It is ordered that the schools which have less than 15 per cent 
black pupils after the implementation of the plan, 
shall not be enlarged either by construction or by 
portables, and shall not be renovated without prior 
court approval. Furthermore, no additional schools 
shall be erected without prior court approval.

R. 23, pp. 16-17, A. __-__. The court specifically retained
jurisdiction.

The 1971 remedial order was affirmed on appeal by this 
Court. 463 F.2d 732. This Court rejected the board's objec­
tions to the use of the flexible white to black population ratio 
as "a guide in seeking a practical plan," and unsubstantiated 
claims of adverse effects on the health and safety of students 
because they were not previously presented to the lower court.

9



463 F.2d 743-746. Plaintiffs appealed because (a) plaintiffs'
plan would have achieved greater integration, and (b) the HEW
plan placed the burden of desegregation disproportionately
upon black children by requiring only younger black children in
grades 1-4 to be bused, and the closing of schools in black
areas. The Court declined to remand for further proceedings,
lest long-delayed desegregation be deferred, but noted that
adverse effects of the plan could be brought to the attention of

±0/
the district court. 463 F.2d at 746.

10/ With respect to the claim of disproportionate burden, the 
Court stated:

It may be that this is a temporary expedient or it may be that there are practical reasons 
to justify it for longer duration. In any 
event, any adverse effects of this aspect of 
the plan can, of course, likewise be brought to 
the District Judge's attention when the case is 
back before him.

463 F.2d at 746.
Judge McCree concurred and noted that plaintiffs could subsequently invoke the district court's retained jurisdiction

to supervise the implementation of the plan in order to obtain more effective and equitable integration. 463 F.2d at 751-752.
It is to be emphasized, nevertheless, that 

our refusal to take affirmative action on this 
issue at this time results only from the 
peculiar timing, posture, and history of this 
case. Our opinion should not be construed in any 
way as a qualification of the principle that a 
district court has an obligation to endeavor 
to distribute the burden of integration equita­
bly on all races and that any deviation from 
this norm, without a compelling justification, 
is impermissible.

Id.
10



The board's motion to stay the issuance of the Court's 
mandate was denied, as was its subsequent petition for cer­
tiorari. 409 U.S. 1001 (1972).
C . Proceedings Since the July 1971 Remedial Order

1. 1972-1978 Proceedings
On July 17, 1972, the board petitioned the district court

to end the transportation program at and resegregate three 
inner city junior high schools, two as virtually all black 
schools and one as virtually all-white, because of a claim of 
extreme hardship on students generally, particularly young black 
inner city children, resulting from transportation. R. 45, 46,
A. __-__. The petition was based on the board's experience with
the first year of implementation of the 1971 remedial order. 
Plaintiffs opposed the petition on the ground that any strain on 
the transportation system or hardship on students was caused by 
the refusal of the board and the metropolitan government to 
provide the necessary transportation facilities for implementa­
tion of court ordered school desegregation. R. 47, p. 1, A.
_. Plaintiffs reiterated their assertion that the HEW plan did
not result in the greatest degree of desegregation, and that the

11/plan should be strengthened rather than weakened.

11/ Plaintiffs sought, inter alia, implementation of plain­
tiffs' plan or some alternative that would "'achieve the greatest possible degree of desegregation'," the elimination of 
the discriminatory features of the HEW plan providing for closure of inner city schools in black areas and for black 
inner city children in the lower grades alone to be bused, and 
an order directing the board to provide adequate transportation 
facilities and making the major and metropolitan council 
parties defendant and enjoining them from withholding necessary 
funds from the board. R. 47, p. 4, A. __.



On August 17, 1972, the court found that the board had 
failed to implement the desegregation plan in good faith.

1. The school board did not purchase one piece of equipment for the purpose of converting the 
school system from a dual school system segre­
gated by race into a unitary one.
2. By reason of the failure of the school board to purchase adequate transportation equipment, the 
ordered integration plan was deficiently implemented.
3. Sufficient funds are available in the school bud­get of the school board for the school year 1972-1973 to 
purchase the needed school buses.
4. No Constitutionally sufficient reason was ad­
vanced by the school board for the resegregation of 
the school system.
5. The school board has not made a good faith effort to obtain sufficient buses to implement 
the court ordered integration plan.11/R. 49, p. 5, A. __. The board's failure to provide for

12/ After going through the motions of asking theCity Council for funds to purchase the needed 
buses, the school board in effect said "We 
have complied with the court order. We have 
requested funds and the request has been denied. 
We do not need to make any additional efforts.
We do not need to cut other expenditures in any 
other area to insure that the full constitutional 
rights of children are secured. We have rendered 
lip service to the Constitution."
The Court holds that this surface compliance does not meet the minimum requirements of dismantling 
a dual school system. The Court feels that a 
school board which has been adjudicated three 
times as violating the equal protection rights 
of school children must do more. Effort and 
sacrifice are not unknown to the American dream 
of equality under the law.

*  *  *

This Court finds that the defendant school board has not made a good faith effort to com­
ply with the court ordered integration plan.

R. 49, p. 4, A. __.
12



adequate transportation and petition for resegregation, were
11/found to be an attempt to frustrate desegregation. The 

court directed the board to purchase 30 buses "to both alleviate 
hardships present during the 1971-72 school year and to advance 
the orderly and efficient establishment of a unitary school
system in Metropolitan Nashville." R. 49, p. 5, A. __. The
court added the city council and mayor as parties defendant, and 
temporarily restrained them from interference with school 
officials or with the implementation of the plan. No action, 
however, was taken on plaintiffs' request for more effective

13/ In effect, the defendant to this cause hasendeavored to accomplish indirectly what it can­
not permissibly accomplish directly— the frustra­
tion of this Court's plan to establish a racially 
integrated school system. Then, relying upon 
the state of public unrest resulting from the 
staggered bussing schedules made necessary by their refusal to provide adequate school trans­
portation, the defendant petitioned this Court to retreat from the integration progress made in the 
past year and to resegregate a number of schools in 
order to free the twenty-nine school buses necessary 
to relieve the burdensome schedule. This, by its 
very terms, would be unconstitutional under Brown 
and its progeny. But, this is the only solution 
proposed to this Court by defendant.

R. 49, pp. 7-8, A. __-__. The court added that:
The basic thrust and end result of defendant's 
actions has been to perpetuate and endorse a bus­sing schedule so unreasonable and harsh that not 
only has the principal goal of a unitary system 
been obscured by public reaction and indignity, 
but also that the health, safety, and security 
of the children involved have been compromised 
by their exposure to risks and dangers.

R. 49, pp. 9-10, A. __-__.
13



equitable relief.
Thereafter, the board reported to the court that it had

14/

complied with the order by purchasing 35 and renting 15 buses. 
15/R. 55.

During these proceedings, and thereafter, the district
court took no action on requests of the board, opposed by
plaintiffs, to make various changes in the desegregation 

16/plan. On May 30, 1973, the board petitioned the court 
to approve an extensive secondary and elementary school con­
struction program for 1 973-79. R. 60, A. __. Plaintiffs

14/ The Mayor responded with a recusal motion. While noting that the affidavit was "legally insufficient" and "nothing more 
than a subterfuge", Judge Morton nevertheless recused himself. 
R. 51. Upon Judge Morton's recusal, Chief Judge Frank Gray, Jr 
took over the case.
15/ The court sustained the propriety of a temporary restrain­ing order enjoining the added defendants from interference with 
board members and staff from seeking and obtaining further 
buses when originally issued, but vacated the order as unneces­
sary in light of the board's report that it had obtained 
buses.

Thereafter three newly added black City Council member 
defendants filed a third party action against the Secretary of 
HEW, other HEW officials and the United States for withholding 
federal funds for transportation expenses to implement the 
court-ordered desegregation plan. The school board joined as a 
third party plaintiff. The court held it has jurisdiction over 
the federal official defendants, 372 F. Supp. 528, and then held that the federal officials acted illegally and unconstitu­
tionally in refusing to release emergency school assistance funds for busing for desegregation purposes, and enjoined them 
from enforcing such an illegal and unconstitutional transporta­
tion policy with respect to assistance requests of the school 
board. 372 F. Supp. 540.
16/ On March 17, 1972, the board proposed an attendance zone and site for the comprehensive high school (Whites Creek) 
in the Joelton area. The school was built without prior obtain 
ing approval. 492 F. Supp. 172, 173.

14



»

responded with a motion for specified information that would 
permit plaintiffs to properly review the petition and to prepare 
objections on the ground that "school construction and expansion 
... apparently would increase racial segregation in the schools, 
further decimate schools in black neighborhoods and place an
unfair burden on black children in school desegregation." R.

11/60A, A. __. On May 31, 1973, the board petitioned the
court to add portable classrooms to elementary schools as part 
of a kindergarten program. Plaintiffs answered that the peti­
tion should be denied because the use of portables would "per­
petuate and increase segregation rather than achieve integration" 
by, inter alia, increasing the capacity of 16 of the 22 virtually 
all-white elementary schools left segregated by the desegregation 
plan in violation of the 1971 remedial order, while inner city
schools were underutilized. R. 60B, A. __. The court took no
action on the petitions, and the board went ahead with placement 
of the portables beginning in the 1973-74 school year. The 
board, through counsel, so informed the court, and subsequently 
informed the court of other board actions taken with respect to 
school construction program without court approval. See 492 
F. Supp. at 174, n.19.

Thereafter, on July 17, 1976, the board reported that it 
would expand Cole Elementary School, one of the 22 schools left 
segregated, by relocating the fifth and sixth grades to an 
"annex" at the Turner Elementary School. I_d. On October, 14, 
1976, the board filed a motion to amend its petition of May 30,

17/ The motion was neither responded to by the board nor acted upon by the court.
15



1973 and for approval of the proposed construction of Good-
lettsville-Madison High School. Ijd. Plaintiffs responded with a
verified petition for contempt and for further relief. R. 68,

18/
11/The district court took no action on the 1976 submissions.

On July 24, 1978, as amended on August 18, 1978, the board

18/ Plaintiffs' petition stated, inter alia, that the addition 
of the "annex" expanded Cole Elementary School in violation 
of the 1971 remedial order, and that the board had publicly 
announced a plan to build the Goodlettsville-Madison and expand 
Hillsboro high schools as part of a plan to expand or construct 
comprehensive high schools in predominantly white suburban areas, while projecting the closure of Pearl High School and 
several elementary schools in the inner city, predominantly 
black areas in violation of the 1971 remedial order. R. 68, p.
4, A. __. Plaintiffs' petition averred that these proposals;

(a) place [d] a greater burden on accomplishing 
integration on black students and their parents 
than on white students and their parents;
(b) constitute [d] continuing discrimination against 
black citizens, school children and neighborhoods by 
proposing to close Pearl High School and other schools 
located in or near black neighborhoods solely be­
cause of their history as black educational insti­
tutions and requiring black children to travel 
invariably to white neighborhoods to receive an 
education with no reciprocal requirements upon
white children;
(c) discriminate[d] against and stigmatize[d] black 
parents, school children and neighborhoods by placing 
all of the new Comprehensive High Schools in all or 
predominantly white neighborhoods rather than in 
areas accessible to both white and black residential 
neighborhoods as contemplated by the Court's afore­
said 1971 opinion and order.

19/ Plaintiffs filed interrogatories on June 4, 1977 requesting information about physical condition, student capacity, capital 
expenditures, desegregation efforts, and changes in the 1971 deseg­
regation plan. A motion to compel was subsequently filed, and the 
board sought an extension. The court took no action and no answers were filed by the board until 1978.

16



filed a petition for approval of school attendance zones for 1978- 
20/

1979. Plaintiffs responded that the petition should be
denied, and filed a separate amendment to the 1976 petition for

21contempt and for further relief. S.R. , , A.

20/ With respect to secondary schools, the board stated that it 
had completed construction, expansion and other preparation for the 
opening of comprehensive high schools listed in its May 30, 1973 
petition, including inter alia, the opening of Whites Creek and 
the closing of former black North High School; the addition of 
ninth grade to all high schools; the decision of the board to 
develop or seek comprehensive high school in an unindentified 
inner city site; permitting students at non-comprehensive high 
schools, including Pearl High School, to transfer to a compre­
hensive high school; restructuring of junior high schools; and 
the closing of six inner city schools as junior high schools.
With respect to elementary schools, the board stated it intended 
to close or use for other purposes several inner city schools, 
and former junior high schools as elementary schools.
21/ Plaintiffs stated, inter alia, that:

[Defendants now claim to have constructed many or most 
of the said expansions to formerly white schools, and are 
asking the Court to approve zone changes therefore, while 
at the same time seeking Court approval of the closure 
of most of the elementary and secondary schools located 
in the inner city areas (Bailey, Carter-Lawrence,
Johnson, and Murrell Elementary Schools, Washington 
Junior High School and North High School) and downgrading 
most of the other inner city black schools (Rose Park 
from junior high to grades 5-6; Cameron, previously 
reduced from high school to junior high school, now 
reduced from junior high school to combination ele­
mentary-junior high, grades 5-8; Wharton from junior 
high to elementary grades 5-6; Cumberland from junior 
high to elementary grades 4-6, leaving only two formerly 
black secondary schools in the entire county, namely:
Meigs Junior High School, grades 7-8, and Pearl High 
School, grades 9-12.

With respect to Pearl High school, plaintiffs stated that:
On information and belief, defendants had proposed and 
were insisting on closing Pearl High School also, and 
were prevented from doing so only by virtue of exten­
sive, extended and strenuous protests by black citizens 
and groups and accompanying protests by white citizens and groups similarly objecting to a proposed closing of

17



No immediate action was taken by the court, and the board went 
ahead and instituted its proposed changes in the 1978-79 school 
year.

2. 1979-1981 Proceedings
In the spring of 1979, the district court, held a pre­

trial conference on all pending matters, and stated that it would 
consider, in successive phases, (1) the 1973 and 1978 petitions 
of the board, (2) staff and faculty issues raised by plaintiffs,
plaintiffs' contempt petitions and (4) plaintiffs' request for

23/attorneys fees. To date, the court has heard and decided 
only the first phase.

(3)

21/ continued
Cohn High School, another inner city high school, which 
although predominantly white, is near the black neigh­
borhood in northwest Nashville. Even so, the plan of 
zoning for high schools in 1978-1979 now proposed by 
defendants for approval by the Court is discriminatory 
by providing an open zone option as to said two inner 
city high schools, Cohn and Pearl, and an adjoining pre­
dominantly white neighborhood high school in the north­
eastern areas of the county (Joelton). The almost in­
evitable effect of the open option is to lessen the 
likelihood of a stable school population in Pearl High 
School...

S. R. , p• 1, A# .
22/ Upon Chief Judge Gray's death, the case was assigned in August, T978 to District Judge Thomas A. Wiseman, Jr., who continues 
to hear the case. 492 F. Supp. 167.
23/ Plaintiffs filed motions for attorneys fees and costs on 
February 8, 1974 and April 11, 1975, as well as motion to dis­
pose of the motions on October 16, 1975. R. 63, 66, A. __, __.
In addition, all of plaintiffs' submissions since entry of the 
1971 remedial order have included requests for award of attorneys fees and costs.

18



After hearings in June and July, 1979, the court issued a 
memorandum opinion on August 27, 1979, 479 F. Supp. 120, 122-123.

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

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

a) that inner city schools have be­
come progressively resegregated;

b) that the projected ideal ratio of 15 percent to 35 percent black population 
in each school has become increasingly more 
difficult to meet;

c) that the school facilities out­
side the Court-ordered perimeter have 
become increasingly inadequate to accommo­
date the growing student bodies.

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

5/ The most dramatic example of such resegre­gation can be seen in enrollment statistics 
for Pearl High School for the school years 1970-71 through the projections for 1979-80.

While the court did not specify implementation actions of the
board which caused de_ jure segregation, the uncontradicted
record shows that: The board attempted to mount an extensive
construction program in predominantly white areas at a time
the system was contracting, although there was overcapacity
in predominantly black inner city schools and schools in

19



in black areas were being closed. A ring of comprehensive
high schools was developed and built in suburban white areas
without prior court approval, while inner city high schools were
not developed and high schools in black areas closed (North) or

25/threatened with closing (Pearl). The board expanded the
capacity of virtually all white schools on the outskirts of the
County through the placement of portable classrooms, additions

26/and annexes in violation of the 1971 remedial order. While
expanding facilities in predominantly white suburban areas, the
board closed schools in predominantly black inner city areas,
requiring black students to bear an even greater burden of trans-

27/
portation to schools in white suburban areas. The board
made no efforts to achieve greater levels of desegregation at
inner city schools by assigning students from white suburban
schools or to relieve the disproportionate burden of transporta-

28/
tion on younger black students. No efforts were made to 
relieve overcrowding in white schools by assigning white students

24/

24/ See, e.g. , R. 74, Vol. II, pp. 896-898 , 933-936 , 961-962,M4, TU27-T0T3; Vol. Ill, pp. 27-32 ; R. 76, Exh. 3.
25/ See, e.g. , R. 74, Vol. II, p. 876-877, 957-959.
26/ See, e.g. , R. 74, Vol. I, pp. 162-165, 170-172, 200A-205;Vol. II, 899-901 , 930-931, 970-974.
27/ See, e.g., R. 74, Vol. I, pp. 174-177, Vol. II, 741-743,752, 873-848; R. 76, Exh. 79.
28/ See, e.g., R. 74, Vol. I, p. 129, Vol. II, pp. 853, 890- 894, 1027-1033.

20



to underutilized inner city schools.
During the July hearings, the court had orally enjoined 

the board's 1978 policy of permitting resegregative automatic 
options out of Pearl because: "[I]t became evident to the Court 
that this provision has been utilized extensively by white 
students assigned to Pearl to escape such assignment. ...
The effect of this policy upon the already-established trend 
toward resegregation at Pearl was disastrous." 479 F. Supp. at 
124. The court directed the board to take immediate action because 
of "the urgency of the situation," ĵ d. , but the board responded 
with a policy of subject matter program transfers whose opera­
tion, the court later found, had "a negative impact upon the 
desegregation efforts of the School Board." 479 F. Supp. at 
129. However, most of the transfers were left in effect for 
1979-80 and senior students permitted to continue to exercise an 
automatic option out of Pearl. Id.

The board prepared and filed a proposed desegregation plan 
in February 1980, and further hearings were held. On May 20,
1980, the court issued a memorandum opinion which rejected the 
proposed plan. 492 F. Supp. 167. The board's 1980 plan in­
cluded: (a) use of a racial ratio of 32% present black system-
wide student composition with a variation of - 20%; (b) retention 
of its comprehensive high schools with either the phasing out of

29/

29/ Id.

21



Pearl High School or its replacement with a new Pearl-Cohn inner 
city comprehensive high school, and approval of construction of 
the northwest Goodlettsville-Madison Comprehensive High School;
(c) noncontiguous zoning of inner city students to five predomi­
nantly white suburban junior high schools and noncontiguous 
zoning of students from white schools to inner city Cameron 
middle school complex; (d) continued placement of 1-4 grade 
schools in predominantly white suburban areas and placement of 
5-6 schools in inner city areas, requiring continued dispropor­
tionate burden of busing of younger black children. 492 F. Supp. 
at 178-183.

The court rejected the 1980 plan because student transporta­
tion imposed a disparate burden on achieving desegregation on young 
black children, and closed four relatively small high schools in 
the outer fringes of the County, which, inter alia, "have posed 
a problem to the Board ... in its efforts to achieve a desegre­
gated system." 492 F. Supp. at 191, 194. However, the court 
also rejected the plan because of concerns about the "lack of 
realistic promise of achievement" in light of white flight and 
certain "social, educational and economic costs of student 
transportation for desegregation. The court set forth "guide­
lines and specific directives" requiring inter alia (a) a three 
tier grade structure of K4-4-4 or some variation, (b) "K-4 
( or variation) of a neighborhood character," (c) middle schools 
with a minimum presence of at least 15% of either race in the 
minority, (d) a high school plan, and (e) the use of magnet 
schools.

22



The board filed a plan on January 19, 1981. S.R. ,
30/

A. __. On February 6, 1981, plaintiffs filed their objec-
31/

tions. S.R. __, A. __. Plaintiffs subsequently submitted
supplemental objections with an alternative K-4 and middle 
school "conceptual" assignment plan, which was based on the 
board's plan, but clustered and paired, and changed the feeder 
patterns in order to achieve greater desegregation and dis­
tribute the burden of transportation more fairly. S.R. _,
A.__.

A hearing was held and the district court struck plain­
tiffs' alternative plan as inconsistent with its May 20, 1980
order. S.R. __, A. __. The middle school portion of the
alternative plan was subsequently admitted in evidence, but the 
K-4 part was admitted only for identification because it diverged 
from the lower court's findings for neighborhood schools at that
level. S.R. __, transcript of March 30, 1981, pp. 283-284, 287.
The parties submitted their proposed findings of fact, and, the 
day after, the district court adopted the board's entire 27 page

30/ The plan is described infra at pp. 24-30.
31/ Plaintiffs objected because, inter alia (a) "the plan provide[d] for massive resegregation of black and white children 
in grades K-4" with 47 of 75 schools over 90% one race, and (b) 
"the plan for Middle Schools (grades 5-8) continues to place 
a disparate burden of transportation upon black school children 
in that said Plan apparently proposes one way busing at pre­
dominantly black elementary school children for inner city areas 
to 11 middle schools in predominantly white residential areas 
... by way of non-contiguous zoning in each instance, while 
transporting white children to the inner city in only one 
instance" through a contiguous zone.

23



proposed memorandum approving the plan filed by the board.
A timely notice of appeal was filed May 15th. On August 

19th, this Court stayed implementation of the district court's 
1980 and 1981 orders, and expedited the appeal. Motions to 
vacate the stay have been denied by the Supreme Court.

D. The Board's 1981 Plan
The board's plan filed pursuant to the district court's May 

20, 1980 order and approved by the court on April 17, 1981 is 
briefly summarized.
Elementary Schools

The plan stated that, "[i]n developing the elementary school 
proposal for submission of the Board of Education, the committee 
began by looking at the neighborhood character of schools as 
mandated by the court, all the while serving to maximize 
the opportunities for integration in a neighborhood configura­
tion. " The plan then proposed 75 such K-4 elementary schools

33/with the following projected enrollment and racial composition.

32/

32/ The title of the board's proposed findings was changed to 
"Memorandum" and the last paragraph changed to state the order 
was a final appealable order and that no stay would be granted.
33/ The plan stated that 31 of the 75 elementary schools were projected to be walk-in schools. The plan also stated that "ap­
proval of this plan may require construction and expansion in 
areas where instruction was heretofore prohibited," referring 
to construction and expansion of facilities at suburban schools 
which the 1971 remedial order excluded from desegregation re­quirements and prohibited from expansion without prior court 
approval.

24



Elementary Schools Projected
Enrollment % White % Black

Allen 219 96.8 3.2Amqui 371 99.0 1.0Bellshire 165 90.3 9. 7Berry 235 97.0 3.0Binkley 486 90.5 9. 5Bordeaux 386 23.6 76.4Brink Church 418 21.3 78.7Brookmeade 386 96.4 3.6Buena Vista 437 12.8 87.2Caldwell 496 6.9 93. 1Carter-Lawrence 571 2.8 97.2Chadwell 202 96.0 4.0Charlotte Park 321 94. 1 5.9Cole 960 93.0 7.0Cotton 273 50.6 49.4Dalewood 332 96. 1 3.9Dodson 640 95.6 4.4DuPont 395 89.6 10.4Eakin 222 88.3 11.7Early 351 4.6 95.4Fall-Hamilton 292 59.6 40.4Gateway 223 100.0 0.0Glencliff 419 97.4 2.6Glendale 330 28.6 71.5Glengarry 307 98.4 1.6Glenn 266 32.0 68.0Glenview 386 85.5 14.5Goodlettsville 295 97.8 2.2Gower 303 93. 1 6.9Gra-Mar 324 79.0 21.0Granberry 358 95.0 5.0Julia Green 263 99.0 1.0Harpeth Valley 345 98.6 1.4Haynes 336 9.8 90.2Haywood 381 93.4 7.6Head 581 33.1 96.9Hermitage 406 97.7 2.3Hickman 328 100.0 0.0Cora Howe 981 61.7 38.3Inglewood 394 34.8 65.2Jackson 379 92.8 7.2Joelton 224 100.0 0.0Johnson 378 19.3 80.7Joy 488 64.3 35.7King's Lane 633 4. 1 95.9Kirkpatrick 253 58.5 41.5Lakeview 738 94.8 5.2Lockeland 301 97.0 3.0

25



McGavock 304 98.7 1.3McKissack 538 6. 5 93.5Dan Mills 217 94.7 5.3Morny 190 81. 1 18.9Napier 394 15. 7 84.3Nelley's Bend 359 91.5 8.5Old Center 167 96.4 3.6Paragon Mills 370 89. 7 10.3Park Avenue 224 57. 6 42.4Percy Priest 172 97.7 2.3Richland 341 96.5 3.5Rosebank 287 87.9 12. 1Ross 178 79.8 20.2Shwab 328 83.2 16.8Stanford 369 98.6 1.4Stokes 331 37.2 62.8Stratton 447 92.8 7.2Sylvan Park 153 100.0 0.0Tusculum 424 92.7 7.3Una 497 94.6 5.4Union Hill 106 100.0 0.0Wade-Jordonia 282 54.0 46.0Warner 671 25.0 75.0Westemeade 387 95.6 4.4Wharton 334 1.0 99.0Whitsitt 317 88.6 11.4
S.R. __, A. __. The board's plan would result in substantial
racial isolation. Fully 47 of the 75 schools were projected as 
more than 90% one-race. 39 schools would be 90% white and 8 
schools over 90% black. 14 schools were projected as more 
than 3/4 black. I_d. Of the eight schools scheduled to be over 
90% black, six were also over 90% black in 1970-1971 before the 
1971 remedial plan went into effect. (The exceptions are Cald­
well, which was 89.9% black in 1970, and Hayes which was 83.1%.
R. 76, Exh. 3.) The extent of racial isolation under the

34/board's plan is greater than that under the 1971 remedial order

34/ In 1978-79, only 19 of 68 elementary schools with grades 1-4 
were over 90% white in racial composition, and none were over 
90% black. R. 76, Exh. 3. 19 of the 22 elementary schools

26



or the alternative plan proposed by plaintiffs.
The plan proposed an intercultural exchange program "for 

the provision of inter-cultural experiences on a periodic basis 
to children in grades K-4 in those schools in which the minority 
representation is less than 15% black or white." The plan also 
included a K-4 "intervention-remediation" program in response to 
the district court's order that the board provide "remediation 
efforts in those schools, or classes within schools, made up 
largely of socio-economically deprived children who suffer the 
continuing effects of prior discrimination." 492 F. Supp. at 
1 96.
Middle Schools

The board's plan for middle schools called for 24 middle 
schools for grades 5 - 8  located in junior high or former 
senior high school buildings, including Pearl High School.
Seven schools were projected to be majority black and 17 schools

35/

23/ continued
excluded from the desegregation requirements of the 1971 remedial order with any grade 1-4 students were over 90% white. None of 
the 46 elementary schools in the area affected by the desegrega­tion requirements of the 1971 remedial order with any grade 
1-4 students were at least 90% either race.
35/ Under plaintiffs' proposal ten of 75 schools were over 90%white and none were over 90% black. S.R. __, A. __. Plaintiffs'
conceptual model was based on the board's plan for the construc­
tion of its proposal, but regrouped students to realize a 
greater level of desegregation. Pairs or clusters with K-2 and K, 3-4 schools were devised in which schools the two kinds of 
grade configurations were located in both inner city and 
outer areas. Students in five schools which fell within 20.2 - 
42.4 range, and 10 virtually white schools in outlying parts of 
Davidson County were left as is.

- 27



majority white under the plan when fully in effect. 20 of 
the 24 schools were projected to fall within the district court's 
15% minimum either race presence standard. Noncontiguous zones 
were established which assigned students from predominantly 
black inner city areas to 11 middle schools located in predomi­
nantly white residential areas. S.R. __, Exh. 269. These
assignments required bus transportation. No students from 
predominantly white areas were assigned to middle schools

37/located in predominantly black areas by noncontiguous zones.

36/ The projected enrollment and racial composition of the mid­dle schools were as follows:

Middle Schools ProjectedEnrollment % White % Black
Joelton 777 60.5 39.5Goodlettsville 766 79.9 20. 1DuPont (Jr.) 560 80.4 19.6Nelly's Bend 682 82.8 17.2Ewing Park 644 29.2 70.8Cumberland 469 39.2 60.8Highland Heights 652 40.8 59.2Meigs 790 20.5 79.5East 902 75.2 29.8Litton 1026 72.7 27.3DuPont (Sr.) 848 81.9 18.6Donaldson 896 85.2 14.8Two Rivers 1004 82.2 17.8Cameron 901 82.9 17. 1Rose Park 567 23.3 76.7Wright 834 88.3 11.7Apollo 757 85.9 14. 1Antioch 1182 96.0 14.0McMurray 974 79.0 21.0Moore 683 80. 1 19.9Pearl 914 22.6 77.4Cohn 815 49.0 51.0Bass 887 65.5 34.5Bellevue 797 84.7 15.3
S.R. _f p. __f A• .
37/ Plaintiffs proposed an alternative middle school assignment pattern which resulted in 22 majority white schools and two

28



High Schools
The plan proposed ten comprehensive high schools, including 

a new inner-city school, Pearl-Cohn, and a new Goodlettsville- 
Madison high school to be operational by 1984-85. Pearl-Cohen 
school was to be located at the site of the Ford-Greene Elemen­
tary in the zone served by the present Pearl and Cohn high
schools. Three high schools were projected to be majority

38/black and seven were projected to be majority white. All 
of the comprehensive high schools were projected to fall within 
the district court's 15 either race minimum. While the board 
initially recommended that space was unavailable for a magnet 
school serving grade 7-12 for academically talented students in 
1981-82, the board subsequently stated tht the present West End 
High School could immediately be opened as an academic high school.

37/ continued
majority black schools (Ewing Park (68.1%) and Pearl (55.5%), and students from predominantly white outer areas were assigned 
to schools located in inner city areas as well as students from 
predominantly black inner city area being assigned to schools 
located in outer areas.
38/ The projected enrollment and racial composition of the ten comprehensive high schools in 1984 follows:

ProjectedHigh Schools Enrollment % White % Black
Whites Creek 2100 43.7 54.6Goodlettsvilie-Madison 1818 85.1 14.9Maplewood 1410 40.8 59.2Stratford 1535 58.4 31.6McGavock 2765 84.9 15. 1Glencliff 1921 78.8 21.2Overton 1748 82.9 17. 1Hillsboro 1015 72.3 27.7Hillwood 1274 69.3 30.7Pearl-Cohn 1553 42.3 57.7
S.R. __, p. __, A.

29



Other Features
The board's plan provided for a multicultural program

designed to involve children in all schools in grades K-12, and
a black history elective in secondary schools. S.R. __, p. __,
A. __. While the Board recommended that the plan be immediately
implemented on an interim basis in the area encompassed in the
northwest sector, the district court directed that interim
implementation occur in the both northwest and southwest sec- 

39/
tors.

In the April 1981 memorandum approving the plan, the court 
decided that the 1971 remedial order's restrictive require­
ment of prior court approval of zone, construction and expansion 
changes, including expansion of segregated schools in suburban 
areas excluded from the 1971 plan, were "obsolete or no longer 
necessary". S.R. __, p. __, A. __.

ARGUMENT

This litigation spans a quarter of a century. In 1970, this 
Court found that "the instant case [was] growing hoary with age," 
436 F.2d 856, 858. Not only had substantial rel ief never been 
granted, but the school board was found to have maintained and 
perpetuated segregation since the filing of the action through 
zoning, facility, construction and faculty assignment policies.

39/ Pending the completion of Pearl-Cohn Comprehensive High School in 1984, high school students from virtually all black 
Pearl and from Cohn were to be assigned to Hillsboro and 
Hillwood for the interim period. S.R. __, p. __, A. __.

30



463 F.2d at 743. It was not until the district court's 1971
remedial order and its affirmance by this Court in the wake of 
the landmark decision of the Supreme Court in Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1 (1972), that "the
first comprehensive and potentially effective desegregation order 
[was] ever entered in this litigation." 463 F.2d 732, 735.

The promise of that desegregation order, however, was never 
fully realized. In 1972, the district court ordered the purchase 
of school buses after finding that the board had failed to im­
plement in good faith the student transportation component in 
the plan's first year. But, from 1973 to 1979, the court com­
pletely failed to supervise the desegregation process. In that 
time, the board not only did not maximize desegregation, 
but engaged in a series of activities which ultimately led to 
a finding of "de jure segregation" in implementation of the 1971 
plan.

Having made those findings, the court was bound by Swann and 
other authority, to correct the deficiencies in the board's im­
plementation of the 1971 remedial order and to assure more ef­
fective and equitable desegregation. Instead, the court gutted 
the 1971 remedial order for elementary schools and resegregated 
grades K-4, imposed as a desegregation standard the presence 
of 15% of either race, maintained substantial one-way busing of 
black students, and sanctioned the closing of Pearl High School, 
the historic black high school, as a senior high school. To 
compensate, the plan provided various educational remediation 
and other programs for students in segregated schools. The 1981



desegregation plan, in short, is less effective than the 1971
plan that defendant board had failed to properly implement.

Such a remedial order flies in the face of Swann and 
this Court's 1972 opinion. The district court candidly recognized 
that it was calling for "a complete reexamination of the remedy 
fashioned in 1971," 479 F. Supp. 120, 123 but was of the view 
that that was permissible to do so because Swann was no longer 
good law: the court believed that what constituted achievement 
of a unitary school system had changed "from a mere destruction 
of barriers, to pupil assignment, to remediation and quality 
education." 492 F. Supp. at 188, see 187-188. It was that 
fundamental error that led the court to call for and approve the 
board's 1981 plan.

I.

The Duty of Defendant School Board and the 
District Court Was "'To Come Forward With a 
Plan That Promises Realistically to Work ... 
Now ... Until It Is Clear That State-Imposed 
Segregation Has Been Completely Removed.'" 40/

In 1972, this Court recognized that the controlling legal 
principle which governs "the question of appropriate remedial 
measures to eliminate state imposed segregation is that "[t]he 
objective today remains to eliminate from the public schools 
all vestiges of state-imposed segregation." 463 F.2d at 740,

40/ Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 13, quoting Green v. County Board of Education,
391 U.S. 431, 439 (1968)(emphasis in original).

32



quoting Swann v. Charlotte-Mecklenburg Board of Education,
supra, 402 U.S. at 15. This Court clearly stated the nature
of "the duty of the District Court on default of the school
board [is] to require production of ... a plan [for a unitary
school system]" in this case.

Chief Justice Burger put the matter thus in the Davis case:
Having once found a violation, the dis­trict judge or school authorities should 

make every effort to achieve the greatest possible degree of actual desegregation, 
taking into account the practicalities of 
the situation. Davis v. School Commis­
sioners of Mobile County ... 402 U.S. [33],
37 [(1968)].

Perhaps the primary thing that the Swann 
case decided was that in devising plans to 
terminate such residual effects, it is appro­
priate for the school system and the District 
Judge to take note of the proportion of white 
and black students within the area 2/ and to 
seek as practical a plan as may be for ending 
white schools and black schools and subsi­
sting therefor schools which are represen­
tative of the area in which the students live.

2/The area referred to in this case is all of 
Davidson County, incuding the City of Nash­
ville, which is included in the jurisdiction 
of defendant Metropolitan Board of Education.

41/463 F.2d at 744.
The district court was wrong that the requirements of Swann, 

and other authority have somehow lapsed over the last decade.

41/ In contrast, the lower court believed that "Swann may have 
been mis interpreted to state a requirement of racial ratios in 
all schools unless the Board could carry the heavy burden of prov­
ing the rationale of the exception." 492 F. Supp. at 188 
(emphasis added).

33



During the pendency of remedial proceedings below, the Supreme 
Court reiterated the principle of Swann and Green that a "[school] 
board's continuing obligation was '"to come forward with a plan 
that promises realistically to work ... now .. until it is clear 
that state-imposed segregation has been completely removed"'
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1,
13 (1971), quoting Green, supra at 439 (emphasis in original)." 
Columbus Board of Education v. Penick, 443 U.S. 449, 459 (1979), 
affirming, 583 F.2d 878 (6th Cir. 1978); Dayton Board of Educa­
tion v. Brinkman, 443 U.S. 526, 538 (1979), affirming, 583 F.2d 
243 (6th Cir. 1978). The Supreme Court affirmed, in Penick, 
that "[t]he Board's continuing 'affirmative duty to disestablish 
the dual school system' [is] beyond question." 443 U.S. at 460.

Where a racially discriminatory school system has been found to exist, Brown II imposes the 
duty on local school boards to "effectuate a 
transition to a racially nondiscriminatory school 
system." 349 US [294] 301. "Brown II was a call 
for the dismantling of well-entrenched dual sys­tems," and school boards operating such systems 
were "clearly charged with the affirmative duty to 
take whatever steps might be necessary to convert 
to a unitary system in which racial discrimination 
would be eliminated root and branch." Green v.
County School Board, 391 US 430, 437-438. Each 
instance of a failure or refusal to fulfill this 
affirmative duty continues the violation of the 
Fourteenth Amendment. Dayton I, 433 US, at 413—
414; Wright v. Council of City of Emporia, 407 
US 451, 460 (1972); United States v. Scotland 
Neck Board of Education, 407 US 484, (1972)
(creation of a new school district in a city that 
had operated a dual school system but was not 
yet the subject of court-ordered desegregation).

443 U.S. at 458 (emphasis added). The duty of a school board
to provide effective nondiscrimintory relief was once again
recognized. As the Court put it in the Brinkman opinion,

34



Part of the affirmative duty imposed by our 
cases, as we decided in Wright v. Council of City 
of Emporia, 407 US 451 (1972), is the obliga­
tion not to take any action that would impede the 
process of disestablishing the dual system and its 
effects. See also United States v. Scotland Neck City Board of Education, 407 US 484 (1972). The 
Dayton Board, however, had engaged in many post- 
Brown I actions that had the effect of increasing 
or perpetuating segregation. The District Court 
ignored this compounding of the original constitu­
tional breach on the ground that there was no direct 
evidence of continued discriminatory purpose. But 
the measure of the post-Brown I conduct of a school 
board under an unsatisfied duty to liquidate a dual 
system is the effectiveness, not the purpose, of 
the actions in decreasing or increasing the segrega­
tion caused by the dual system. Wright, supra, at 
460, 462; Davis v. School Comm'rs of Mobile County,
402 US 229, 243 (1976). As was clearly established 
in Keyes and Swann, the Board had to do more than 
abandon its prior discriminatory purpose. 413 US, 
at 200-201, n. 11; 402 US, at 28. The Board has 
had an affirmative responsibility to see that pupil 
assignment policies and school construction and 
abandonment practices "are not used and do not 
serve to perpetuate or re-establish the dual school 
system," Columbus, ante, at 460, and the Board 
has a "'heavy burden'" of showing that actions 
that increased or continued the effects of the 
dual system serve important and legitimate ends.
Wright, supra, at 467, quoting Green v. County 
School Board, 391 US 430, 439 (1968).

433 U.S. at 538 (emphasis added).
In framing relief, therefore, the district court wrongly 

ignored the requirements of Swann and this Court's 1972 opinion, 
and their reiteration in Brinkman and Penick. (Indeed, Brinkman 
or Penick were neither cited nor referred to by the lower court.)

This remedial duty, of course, is no less in a case where, 
as here, prior relief has been ordered but not effectively im­
plemented. The duty of a district court is "to retain juris­
diction until it is clear that disestablishment [of the dual 
system] has been achieved." Raney v. Board of Education, 391

35



U.S. 443, 449 (1968). 42/

The District Court's Remedial Order Per­petuated or Reestablished a Dual School 
System in Violation of the Constitution.

A. The Order Resegregated K-4 Elementary Schools.
The desegregation plan approved by the lower court on its 

face resegregates almost two-thirds of Nashville-Davidson County 
elementary schools. The plan provides that fully 47 of 75 K-4 
schools will operate as single race schools, over 90% white or 
black in racial composition; 39 schools would be at least 
90% white and 8 historic predominantly black schools would be at 
least 90% black. See supra at p.26. The district court, therefore,

II.

42/ As Penick recognized:
The Green case itself was decided 13 years 
after Brown II. The core of the holding was 
that the school board involved had not done 
enough to eradicate the lingering consequences 
of the dual school system that it had been 
operating at the time Brown was decided. ...
... In Swann, it should be recalled, an 
initial desegregation plan had been entered in 
1965 and had been affirmed on appeal. But the 
case was reopened, and in 1969 the school board 
was required to come forth with a more effective 
plan. The judgment adopting the ultimate plan was 
affirmed here in 1971, 16 years after Brown II.

See, e.g., Anderson v. Dougherty County Board of Education,
609 F.2d 225 (5th Cir. 1080); United States v. Board of Educa­tion of Valdosta, 576 F.2d 37 (5th Cir.), cert, denied, 439 U.S 
1007 (1978); United States v. DeSoto Parish School Bd., 574 F.2d 
804 (5th Cir.), cert, denied, 439 U.S. 982 (1978); United States 
v^_South Park Ind. School dist., 566 F.2d 1221 (5th Cir.), cert. 
denied, 439 U.S 1007 (1978).

36



formally reestablished, in substantial terms, the dual elementary
school system which the 1971 remedial order expressly sought to 

43/
eliminate.

The law of the Circuit is that a desegregation plan, which
excludes even first grade students, absent compelling need, is
contrary to the constitutional mandate that all vestiges of
state-imposed segregation should be eliminated.

Although a federal district court has broad discretionary authority in exercising its 
equitable powers in formulating a remedy for violation of constitutional rights in a school 
desegregation case, certainly a district court 
would be abusing its authority by not ordering 
any remedy at all. Nor may a district court 
order a remedy of limited scope which leaves 
many who have suffered violations of their con­
stitutional rights without redress. To exempt 
first grade students from busing would leave 
vestiges of segregation intact contrary to 
this Court's mandate.

Haycraft v. Board of Education, 585 F.2d 803, 805 (6th Cir.
44/1978), cert, denied, 443 U.S. 915 (1979). Students in 

lower elementary grades "'are part of the normal curriculum of 
the district and entitled to a full and equal integrated edu­
cation. '" 585 F.2d at 806, quoting Flax v. Potts, 464 F.2d

43/ Plaintiffs believe that the educational programs included in the board's plan, i♦e., remediation, intercultural exchange, are 
worthwhile. See Milliken v. Bradley, 433 U.S 267 (1977). Such 
programs are a useful and necessary adjunct to student assignment remedies, but do not, in and of themselves, discharge the con­
stitutional duty of school boards and courts to devise remedies 
that will result in substantial actual desegregation.
44/ Judge Peck's opinion for the Court applied equitable 
principles of Swann and other cases, including the Circuit opinions in Penick and Brinkman. Id.

37



865, 869 (5th Cir. 1972). The rule is that elementary students
must be included in desegregation remedies, including student
assignment and transportation, in order that such remedies pass

45/constitutional muster.
Indeed, in Brown v. Board of Education, supra, 347 U.S. at 

484 n. 1, the only issue was desegregation of inherently unequal 
separate schools in the elementary grades in Topeka, Kansas. 
Sanctioning the exemption of the lower elementary grades from 
desegregation thus would largely nullify Brown itself. Exemption 
of grades 1-4, in any event, would be anomalous in the instant 
case where the board's initial desegregation efforts in 1957 
began with the first grade, and one of the principal reasons 
for rejection of the board's proposed plan in 1971 was its 
failure to desegregate elementary grades.

There simply is no proper issue that "the time or dis­
tance of travel is so great as to either risk the health of

45/ See, e.q., Supreme Court cases: Brown v. Board of Educa­tion, 347 U.S 483, 484 n. 1 (1954); 349 U.S. 294, 300-301 (1955);
Davis v. Board of School Commissioners, supra 402 U.S. at 36-38; 
Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 
U.S. at 10-11; Court of Appeals cases: Adams v. United States,
620 F.2d 1277, 1292-1295 & n. 24 (8th Cir. 1980) (en banc); Morgan 
v. Kerrigan, 530 F.2d 401, 410 (1st Cir. 1976); Keyes v. School 
District No 1, 521 F.2d 465, 477-479 (10th Cir. 1975); United 
States v. Texas Education Agency, 532 F.2d 380, 393 (5th Cir.),
(en banc), remanded on other grounds, 429 U.S. 990 (1976), 
cert, denied, 443 U.S. 915 (1979); Evans v. Buchanan, 555 F.2d 
373 (3d Cir. 1977), aff 'g, 416 F. Supp. 328, 348 (D. Del. 1 976); 
Mills v. Polk County Board of Public Inst., 575 F.2d 1146 (5th 
Cir. 1978); Arvizu v. Waco Independent School District, 495 
F.2d 499, 505-506 (5th Cir.) (and cases cited), 496 F.2d 1309 
(1974) (rehearing). See also, United States v. State of Texas,
498 F. Supp. 1356, 1374 (E.D. Tex. 1980); McPherson v. School 
District No. 186, 426 F. Supp. 173, 183, 187-188 (S.D. 111.
1976).

38



the children or significantly impinge on the educational
process. " Swann v. Charlotte-Mecklenburg Board of Education 
supra, 402 U.S. at 30-31. The board's effort to argue the 
same point to this Court in 1972 was referred to the dis­
trict court, 463 F.2d 744-745, which rejected the claim 
because " [t]he school board has not made a good faith effort 
to obtain sufficient buses to implement the court ordered 
integration." It was found that the board itself was 
responsible for exposing students, predominantly young black 
inner city students, to unreasonable risk: "The basic thrust and
end result of defendant's actions has been to perpetuate and 
endorse a busing schedule so unreasonable and harsh that ... the 
health, safety, and security of the children involved have been 
compromised by their exposure to risks and dangers." Under the 
1971 remedial order, black children in grades 1-4 _in fact have
been bused out to schools in predominantly white areas for 

46/desegregation. There, in any event, is no evidence of
any unavoidable endangerment or impingement as a result of
transportation at these levels. See Lee v. Macon County Board

47/
of Education, 616 F.2d 805, 810-811 (5th Cir. 1980).

46/ The plan submitted by the board in 1980 proposed the same kind of busing. 492 F. Supp. at 181-183.
47/ Plaintiffs did object to the discriminatory busing of only BTack children in grades 1-4 to schools in predominantly white 
areas. Plaintiffs' educational consultant, Dr. Hugh Scott, 
testified that one-way busing of black students in grades 1-4 to

39



The fear of white flight, a reason cited by the lower 
court, for its neighborhood school policy, 492 F. Supp. at 189— 
190, 191-192, provides no proper basis for resegregation of the 
elementary schools. Monroe v. Board of Commissioners, 391 U.S. 
450, 459 (1968); Higgins v. Board of Education, 508 F.2d 779,
794 (6th Cir. 1974). Nor does the duty to“eliminate all vestiges 
of the dual system, Green, supra; Swann, supra; Penick, supra, 
permit resegregation on the bare claim that transportation costs 
could be better spent on "educational improvement[s]," 492 F. 
Supp. at 192. The provision of "intercultural exchange" and 
"intervention-remediation" programs, worthy as such programs are, 
is no substitute for substantial desegregation. United States v. 
Texas Education Agency, 467 F.2d 848, 873 (5th Cir. 1972). The 
board, in short, cannot carry its "'"heavy burden"' of showing 
that actions that increased or continued the effects of the dual 
system serve important and legitimate ends." Brinkman, supra,
443 U.S. at 538 (citations omitted).

47/ continued
outlying schools in predominantly white neighborhoods was bad educational policy and that it had adverse impact on the education
of black students. R. 75, Vol. __, pp. 10-13, 40-41, 59-65,
131-133, 317-318. Dr. Scott testified to the importance of 
maintaining students, particularly disadvantaged black students, 
in a supportive and continuous learning environment for grades 
K-2 or K-3. Dr. Scott therefore suggested (a) that busing of 
students in grades 1-4 for desegregation involve proportional 
numbers of black and white students so that some black students would be able to attend school for the lower grades in their 
neighborhood schools, (b) that consideration be given to placing 
more schools serving lower grades in the black community because 
of the greater number of disadvantaged children who would 
benefit most from a continuous K-2 or K-3 program at the same 
school or some transportation of kindergarten students with 
first graders, and (c) that the board devise programs for 
students bused to schools outside their neighborhoods that 
addressed the need to provide support and continuity. Id.

40



The unjustified existence of such a large number of single 
race schools is improper. Columbus Board of Education v. Penick, 
surpa, 443 U.S at 460; Swann, supra, 402 U.S. at 26; see Anderson 
v. Dougherty County Board of Education, 609 F.2d 225 (5th Cir. 
1980); Lee v. Tuscaloosa City School System, 576 F.2d 39, 41 
(5th Cir. 1978).

B. The Order's 15% Minimum Presence Standard Is Resegregative.
The lower court required the board to achieve "the objective 

.. of bringing about a minimum presence of at least 15 percent of 
either race in the minority at each middle school," and re­
jected "[a] rigid adherence to racial ratios." 492 F. Supp. at 
193. The court applied no "minimum presence" or racial ratio 
to desegregation of elementary or high schools. As a result, 
the schools at every level diverge substantially from the system- 
wide white to black racial ratio of 68%-32%.

The district court, in short, wholly jettisoned the use of 
a racial ratio as "a starting point in the process of shaping a
remedy" generally sanctioned by the Supreme Court in Swann, 402 

48/U.S. at 25, and specifically sanctioned for use in the instant

48/ As we said in Green, a school authority's
remedial plan or a district court's remedial 
decree is to be judged by its effectiveness. 
Awareness of the racial composition of the 
whole system is likely to be a useful start­
ing point in shaping a remedy to correct past 
constitutional violations."

Id. The use of the Swann racial ratio, of course, does not preclude the possibility of a small number of predominantly 
black schools in a large system. 402 U.S. at 26. However, 
Swann, in this respect, states that: "The district judge or

41



case by this Court in its 1972 opinion. This Court stated
that: "Perhaps the primary thing that the Swann case decided
was that in devising plans it is appropriate for the school
system and the District Judge to take note of the proportion 
of white and black students within the area and to seek as 
practical a plan as may be for ending white schools and black 
schools and substituting therefor schools which are representa­
tive of the area in which the students live." 463 F.2d at 
744.

To evade completely the import of Swann and the 1972 opinion 
was plain error.

No per se rule can adequately embrace all the difficulties of reconciling the competing in­
terests involved; but in a system with a his­
tory of segregation the need for remedial cri­
teria of sufficient specificity to assure a 
school authority's compliance with its con­
stitutional duty warrants a presumption 
against schools that are substantially dis­
proportionate in their racial composition.

Columbus Board of Education v. Penick, supra, 443 U.S. at 460, 
quoting Swann, supra, 402 U.S. at 26. The flexible use of 
racial ratios with a variation, typically 10% - 15%, above and 
below the system-wide racial composition as a desegregation stan­
dard provides a useful "starting point" and a convenient means of

48/ continued
school authorities should make every effort to achieve the 
greatest possible degree of actual desegregation and will thus 
necessarily be concerned with the elimination of one-race 
schools." Id.

42



testing of the effectiveness of various desegregation tools.
In the instant case, the failure to use a racial ratio as a 
starting point or measure of effectiveness obscured that fully 69 
of 75 elementary schools, 12 of 24 middle schools and 5 of 10 
comprehensive high schools fell outside a range of 32% black 
systemwide racial composition with a variation of 15% (i.e.,
17% - 47% black) under the board's 1981 plan.

The district court had no warrant to substitute a 15% 
either race minimum for middle schools in place of the Swann 
racial ratio. The 15% "minimum," which permits 85% white and 
85% black schools without any showing of necessity or excep­
tional circumstance, has absolutely no bearing on whether "the 
district judge or school authorities [have made] every effort to 
achieve the greatest possible degree of actual desegregation, 
taking into account the practicalities of the situation." 463 
F.2d at 744, quoting Davis v. Board of School Commissioners, 
supra, 402 U.S at 37. The minimum as a desegregation standard, 
therefore, had no legal basis. Indeed, the district court did 
not seek to justify its use as a desegregation measure: the 15%
minimum objective was adopted as "socially []desirable" because 
"it seems to represent a reasonable attempt to provide inter- 
cultural and interracial contact as a foundation of or social 
harmony." 492 F. Supp. at 193. Whatever the merits of a 15% 
minimum as educational policy, it has no utility as a desegrega-

49/

49/ See, e.g., Higgins v. Board of Education, 508 F.2d 779, 787 n. 12 (6th Cir. 1979); Penick v. Columbus Board of Education, 583 
F.2d 787, 789-800 (6th Cir. 1978), affirmed, 443 U.S. 449 (1979).

43



tion objective or measure. If adopted as a desegregation 
tool, it plainly provides such lattitude that a school board is 
given essentially no guidance in its desegregation efforts. That

50/

50/ The court attributed the minimum standard to "the suggestion of plaintiffs." However, plaintifs' alternative desegregation 
plan for elementary and middle schools, drafted by Dr. William 
Gordon, uses the Swann racial ratio of 32% with a variation of 
15% as a starting point. S.R. __, Exh. __, A. __.

The court apparently was referring to the testimony of plaintiffs' educational consultant, Dr. Hugh Scott. Dr. Scott 
testified from the perspective of a black educator with experience 
in the Washington, D.C. and Detroit school systems, focusing 
principally on educational policy and programmatic matters.
See, e♦g., supra at note 47. He did not participate in drawing 
plaintiffs' plan, and stated that he had never drafted or assistedin the preparation of a desegregation plan. R. 75, Vol. __, pp.
252-253.

The thrust of Dr. Scott's testimony was that the board's desegregation efforts lacked a programmatic dimension. See, 
e.g., 492 F. Supp. at 184-185. His position was that the board should institute remedial and other educational programs as
well as actual desegregation of students. E.g., R. 75, Vol. __,
pp. 42-43, 59-64. He accepted that a 32% racial representation 
as "optimum," but that in exceptional circumstances a small 
number of predominantly minority school might be permissible where 
desegregation could not be practicably achieved or where special
circumstances were present. E.g., R. 75, Vol. __, p. 109,
292-306. He felt that whatever desegregation formula was used 
should recognize that majority black schools are not inherently 
educationally dysfunctional.

Indeed, Dr. Scott did not appear to address the flexible 
Swann racial ratio as such. Dr. Scott was distressed by the 
school board's use of an inflexible racial quota, in its im­
plementation of the 1971 plan, to justify the busing of all black 
1-4 grade students to white suburban schools although schools in 
the inner city were underutilized and white 1-4 grade students 
could readily be bused to them. The net result of the board's 
policy would be to close schools in black inner city neighbor­
hoods and bus all black inner city children to schools in pre­
dominantly white areas. It was that problem that Dr. Scott 
addressed. Dr. Scott did not discuss the nondiscriminatory use 
of racial ratios.

To the extent Dr. Scott's testimony can be taken as advocat­ing any 15% minimum objective as a desegregation measure, plain­
tiffs do not stand by it.

44



"minimum" is not the full measure of constitutional command: 
a school district does not discharge its duty to take what­
ever steps might be necessary to convert to a unitary system in 
which racial discrimination would be eliminated root and branch.'" 
Swann, supra, 402 U.S. at 15, quoting Green, 391 U.S at 438, 
simply by resegregating its students in 85% single race schools.

C. The Order Imposes a Disproportionate Burden of Busing On Black Middle School Students.
It is axiomatic that a school board may not administer a 

desegregation plan in a "deliberately discriminatory manner." 
Monroe v. Board of Commissioners, supra, 391 U.S. at 458. Judge 
McCree, concurring, stated the applicable rule of law in 1972.

Without a compelling justification, adoption of a plan that places a greater burden of accom­
plishing integration on black students and their 
parents is impermissible, whether this be phrased 
in terms of an equal protection violation because 
the plan was the school board's product, see, e.g.,
Lee v. Macon County Board of Education, 448 F.2d 
746, 753-754 (5th Cir. 1970); Carr v. Montgomery 
County Board of Education, 429 F.2d 382, 385 
(5th Cir. 1970); Brice v. Landis, 314 F. Supp.
974, 978-979 (N.D. Cal. 1969), or in terms of an 
abuse of the court's discretion in fashioning an 
equitable remedy to rectify the effects of past injustice.

463 F.2d at 751. That rule is unchanged today. See, e.g.,
NAACP v. Lansing Board of Education, 559 F.2d 1042, 1052 (6th 
Cir.), cert, denied, 434 U.S 997 (1977); Arvizu v. Waco Indep. 
School District, 495 F.2d 499, 504, 507 (5th Cir. 1974) (and 
cases cited); United States v. Columbus Municipal Separate School 
District, 558 F.2d 228, 232 (5th Cir. 1977); Arthur v.Nyquist,
636 F.2d 905, 907 (2d Cir. 1981) United States v. School District 
of City of Ferndale, 499 F. Supp. 367, 370-372 (E.D. Mich. 1980);

45



United States v. State of Texas, 498 F. Supp. 1356, 1374 (E.D.
Tex. 1980).

In 1972, this Court stated that that feature of the 1971 
remedial order requiring transportation of black students in 
grades 1-4 to outlying schools, while white students in grades 
5-6 were bused in, "may be a temporary expedient or it may be 
there are practical means to justify it for longer duration" 
that the district court could later address. 463 F2.d 746.
The lower court, however, took no action to equalize the burden 
of busing, and young black elementary school children in the 
inner city continue to bear a disproportionate burden of desegre­
gation. Ultimately, in 1980, when the board included similar 
provisions in its 1980 plan, the court found that such busing 
"disparately onerates young black children with the burden of 
achieving desegregation." 492 F. Supp. at 191.

The court, nevertheless, approved a middle school plan in 
which black students continue to bear a disproportionate burden 
of busing. That plan assigns students from predominantly black 
inner city areas to 11 middle schools located in predominantly 
white residential areas by noncontiguous zoning, but establishes 
no noncontiguous zones for white students to attend inner city 
middle schools in predominantly black areas. As a result, 
several inner city middle schools are projected as majority black. 
E.g., Ewing Park (70.8%), Cumberland (60.8%), Highland Heights 
(59.2%), Meigs (79.5%), Rose Park (76.7%), Pearl (77.4%). Since, 
as the lower court found, there was no justification for disparate 
busing of black school children in grades 1-4, there is cer-

46



tainly none at the middle school level. Indeed, elimination of 
the disparity of the busing burden will also enhance the actual 
level of desegregation at inner city middle schools.

D. The Failure to Retain and Develop Pearl High School as a Comprehensive Senior High School Is Discrimi- 
natory and Impedes Desegregation.__________________

The lower court found that:
Pearl [High School] is the only remaining historically black high school. Plaintiffs 
argue persuasively for the retention of Pearl because of its historic contribution 
to the black community of Nashville, the 
contribution of its graduates to the nation, its value as a source of ethnic pride and 
symbol of black achievement, and the fact 
that it is a sound structure, aesthetically 
attractive, and functional. The building 
was designed by black architects, constructed 
by black contractors, and has graduated black 
persons who have gone on to great achievements 
in the region and the nation. Such role models 
are of significant importance to young black 
children seeking to break out of the bonds 
of poverty and overcome the unformunately 
still-present effects of our shameful two- 
hundred-year history of discrimination against 
the black citizens of this land. Substantial 
proof from many prominent black leaders was 
offered in support of these contentions.

492 F. Supp. at 184. It is undisputed that Pearl is structur­
ally sound, that it has a vocational wing, and that there is 
sufficient land, including a park adjacent to Pearl, to permit 
Pearl to be expanded into a comprehensive high school. However, 
the board failed to consider augmenting Pearl as such a facility 
although other high schools in predominantly white suburban areas 
were expanded into comprehensive high schools after 1971, 
including Hillsboro, whose expansion was in specific violation

47



of the 1971 remedial order. See supra at pp. 8-9. The board has 
closed numerous schools in black areas since 1971 and it 
was only the protest of the black community which caused the 
board to decide not to close Pearl altogether in 1978. However, 
immediately thereafter the board instituted its transfer option, 
which permitted white students at Pearl to transfer to several 
comprehensive high schools. That, as the lower court found, 
resegregated Pearl as an all black high school. See supra at 
pp. 20-21. Under the board's 1981 plan, Pearl is scheduled to be 
a middle school, serving grades 5-8.

These actions violated the board's duty that "in devising 
remedies for legally imposed segregation the responsibility of 
the local authorities and district courts is to ensure that 
future school construction and abandonment are not used and do 
not serve to perpetuate or reestablish the dual school system." 
Columbus Board of Education v. Penick, supra, 443 U.S at 460, 
citing, Swann, supra, 402 U.S at 20-21; Dayton Board of Educa­
tion v. Brinkman, supra, 443 U.S. at 538. The board's failure 
to retain and develop Pearl as a comprehensive high school 
impedes dismantling of the dual system, supra; Geier v. Univer­
sity of Tennessee, 597 F.2d 1056, 1064-1071 (6th Cir. 1979), 
cert, denied, 444 U.S 886 (1980), and cannot be justified under 
the required heavy burden of a proper legitimate educational 
basis. See, e.g., United States v. Texas Education Agency, 467 
F.2d 848, 871-872 (5th Cir. 1972); Lee v. Macon County Board of 
Education, 498 F.2d 746, 753-754 (5th Cir. 1971); Haney v. County

48



Board of Education, 429 F.2d 364, 371-372 (8th Cir. 1970). 
Although the plan proposes to build a Pearl-Cohn Comprehensive 
High School at the site of Ford Green Elementary School, the 
expansion of Pearl would be more economically feasible, and, 
thus, more practical and certain a prospect.

Ill
The District Court's Failure to Consider the 
Issues of Faculty and Staff Hiring and Assign­
ment, Defendants' Contempt, and Plaintiffs'
1975 Motion for Counsel Fees and Expenses Was Erroneous.

In 1979, the district court stated that it would decide 
certain issues other than student assignment, and facility 
construction and abandonment, i.e., faculty and staff hiring and 
assignment first raised in 1973, defendants' contempt for evading 
the 1971 remedial order first raised in 1976, and plaintiffs'
1975 motion for counsel fees and expenses immediately after is 
consideration of student assignment and construction issues. That 
has not yet taken place.

It was error for the lower court to defer indefinitely
hearing these longstanding implementation matters. Their
importance cannot be gainsaid, see, e.g., Penick, 443 U.S at
460 (teachers and staff), and the lower court's delay in dispos­

al/ing of these matters should not be countenanced. The 
Court should remand for specific immediate hearing of these 
issues. See 436 F.2d 856.

5T_/ See Monroe v. Board of Commissioners, 581 F.2d 581 , 582 (6th Cir. 1978)(delay of counsel fees award).
49



CONCLUSION

The judgment and orders of the district court should be 
reversed, and the district court should be ordered to assure that 
an effective and equitable desegregation plan, consistent with 
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1972) and other authority, be implemented for the 1982-1983 
school year.

Respectfully

:lliams% j r .
(ICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 27201

JACK GREENBERG JAMES M. NABRIT, III 
BILL LANN LEE

Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Plaint iffs-Appellants

50



CERTIFICATE OF SERVICE

Undersigned counsel for plaintiffs-appellants certifies that 
on this 30th day of October 1981, copies of the foregoing Brief 
for Plaint iffs-Appellants were served upon counsel for the 
parties by prepaid first class United States mail addressed 
to:

WILLIAM R. WILLIS, JR. MARION F. HARRISON 
215 Second Avenue, North 
Nashville, Tennessee 37201

torney of Record