Mapp v. Board of Education of the City of Chattanooga, Tennessee Brief in Opposition to Petition for Writ of Certiorari
Public Court Documents
October 6, 1975

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Brief Collection, LDF Court Filings. Mapp v. Board of Education of the City of Chattanooga, Tennessee Brief in Opposition to Petition for Writ of Certiorari, 1975. d85176fc-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/58e67559-11b1-4970-90ca-31ca46be04ae/mapp-v-board-of-education-of-the-city-of-chattanooga-tennessee-brief-in-opposition-to-petition-for-writ-of-certiorari. Accessed April 27, 2025.
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In The SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1975 No. 75-1564 JAMES JONATHAN MAPP, et ah, Petitioners, vs. THE BOARD OF EDUCATION OF THE CITY OF CHATTANOOGA, TENNESSEE, Respondent. BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RAYMOND B. W ITT, JR., W ITT, GAITHER, RICHARDSON, HENNISS & WHITAKER 1100 American National Bank Building Chattanooga, Tennessee 37402 Attorneys for Respondent COURT INDEX PRESS, INC. — 809 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450 INDEX Page COUNTER STATEMENT OF THE QUESTIONS PRESENTED ......................................................................... 1 STATEMENT OF THE CASE ............................................... 3 The Action Under Review Here ......................................... 3 Factual Background ................................................................. 3 REASONS FOR DENYING THE W RIT ............................ 10 CONCLUSION .............................. 16 APPENDIX A: Decision of Court of Appeals dated October 20, 1975 and Order of January 27, 1976 .................................. la-19a APPENDIX B; Book entitled “Chattanooga Public Schools Chattanooga, Tennessee, Attendance Zones Pupil Enrollment Data, Part III, Summary Analysis of Enrollment Experience, Black- White Ratio Stability” ........................ 20a-27a II. TABLE OF AUTHORITIES Cases: Page Brown v. Board of Education of Topeka I, 374 U.S. 483 ................................................................... 3, 10, 11 Brown v. Board of Education of Topeka II, 394 U.S. 295 .......................................................... 3, 10, 11, 15 Green v. County School Board of New Kent County, Virginia, 391 U.S. 430 (1968) ............................................. 11 Mapp v. Board of Education of Chattanooga, 329 F.Supp. 1374 ................................................. aff’d 477 F.2d 851 (6th Cir. 1973) ................... cert, denied 414 U.S. 1022 (1 9 7 3 )................... 373 F.2d 75 (1967) ........................................... 366 F.Supp. 1257 (1 9 7 3 ).................................... Pasadena City Board of Education, et al v. Nancy Anne Spangler, et al and United States of America, 44 U.S.L.W. 3271 ................................................................... 7, 8 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1 9 7 1 )................................ 4, 5, 7, 10, 11, 12, 15 Constitutional Provisions: Fourteenth Amendment to the United States Constitution ............................................................................. 11 2, 5 2, 5 . 2 . 4 . 14 In The SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1975 No. 75-1564 JAMES JONATHAN MAPP, et al., Petitioners, vs. THE BOARD OF EDUCATION OF THE CITY OF CHATTANOOGA, TENNESSEE, Respondent. BR IEF IN OPPOSITION TO PETITION FOR A W RIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Respondent accepts Petitioners’ statement of jurisdiction but cannot accept their statement of tire question presented or the statement of the case. COUNTER STATEMENT OF THE QUESTIONS PRESENTED The questions presented which were correctly resolved by the District Court and the Appellate Court are whether a formerly de jure dual school system is under a continuing annual responsibility to assign its white children throughout the school system in such a manner as to avoid having any schools with a racial balance disproportionate to the system- wide racial balance where such racial disproportion as may then exist in the system “is not the result of any present Of past discrimination upon the part of the Board or other state agency,” but “rather is a consequence of demographic and other factors not within any reasonable responsibility of the Board.”1 * * * 5 The District Court and the Court of Appeals answer was in the negative and should be affirmed by a denial of the Petitioners’ petition for a writ of certiorari. The second issue correctly decided by the District Court and the Appellate Court is as follows: whether once a de jure school system has implemented a desegregation plan, as approved by the District Court and the Court of Appeals, with petition having been denied by the United States Supreme Court, is there any Constitutional requirement that additional white students received into the school system through annex ation subsequent to the District Court order be dispersed throughout the system in order to achieve a racial balance system-wide? Both the District Court and the Court of Ap peals answered this question in the negative and should be affirmed by this court’s denial of the Petitioners’ petition for writ of certiorari. The October 20, 1975 2-1 decision of the Court of Appeals affirms the District Court without any qualifications. A peti tion for rehearing and a suggestion of a rehearing en banc in said case was denied by the Court of Appeals on January 27, 1976. A copy of said opinions appears as Appendix A to this brief in opposition. 1 Mapp v. Board of Education of Chattanooga, 329 F.Supp. 1374, 1384 (aff’d 477 F .2d 851) (6th Cir. 197 3 ), cert, denied, 414 U.S. 1022 (1 9 7 3 ). As to the Junior High Schools the District Court said: “Rather, such limited racial imbalance as may remain is the conse quence of demographical, residential, or other factors which in no reasonable sense could be attributed to School Board action or inaction, past or present, nor to that of any other state agency. The Court is accordingly of the opinion that the defendants’ plan for desegregation of the Chattanooga Junior High Schools will eliminate ‘all vestiges of state imposed segregation’ as required by the Swann decision.” (Emphasis added) 3 STATEMENT OF THE CASE The Action Under Review Here This petition seeks to review a judgment of the District Court in a school desegregation case affirmed by the United States Court of Appeals for the Sixth Circuit, where the Dis trict Court refused to order the submission of a new desegrega tion plan when two high schools remained substantially all black in spite of affirmative efforts by the Chattanooga Board of Education (hereinafter referred to as C B E ) to desegregate said schools and where subsequent and proposed territorial annexation would appear to provide additional white students in the system. Such is the essence of respondent’s appeal, Case No. 74-2100, and the Court of Appeals affirmed. All of the testimony with reference to the subsequent and proposed annexation was introduced by the Petitioners in re buttal and response to a motion for further relief by CBE requesting amendment of the Amended Desegregation Plan of June 16, 1971. The motion of CBE was the reason for the evidentiary hearing in October of 1973. The District Court’s opinion also refused to allow CBE to amend a previously approved desegregation plan involving decisions based upon race, contiguous busing, pairing, cluster ing, and racial gerrymandering of zones. The limited amend ment was sought by respondent (C B E) in order to receive the Court’s permission to implement changes in the desegrega tion plan designed to diminish the white withdrawal from the system. The Court of Appeals affirmed the District Court, No. 74-2101. Factual Background On July 22, 1955, respondent issued its initial statement of policy in response to the decisions of this Court in Broum v. Board of Education of Topeka I, 347 U.S. 483, and Brown 11, 349 U.S. 295, decided on May 17, 1954 and May 31, 1954, respectively, on the subject of student desegregation in public 4 schools. The opening paragraph of said statement read as follows: “The Chattanooga Board of Education will comply with the decision of the United States Supreme Court on the matter of integration in the public schools.”2 The Board immediately undertook a process of elucida tion with the formation of an interracial advisory committee.3 The elucidation process was continued until this litigation was filed on April 6, 1960. A gradual desegregation plan was approved in 1962 with 16 selected elementary schools being desegregated in September of that year in grades one, two, and three. All dual zones would have been abolished by 1988. At that point in time all parties presumed such to be compli ance with the Constitution. The pace of the desegregation was accelerated pursuant to District Court order following a motion for further relief by plaintiffs, filed March 29, 1965. The complete elimination of dual zones in all grades was effected by December, 1986. Sub sequent to affirmance by the Court of Appeals,4 the only issue remaining was that of faculty assignments until February of 1971 when the District Court dismissed a motion by Peti tioners for summary judgment, but set an evidentiary hearing classifying the issues for trial and placing the burden of proof upon Respondent to prove that the actions taken by Respon dent met the obligation to establish a unitary school system. Shortly after this Court’s opinion in Swarm v. Charlotte- M ecklenburg Board o f Education, 402 U.S. 1 (4/20/71) in May, the evidentiary hearing was completed and a new de segregation plan was ordered to “maximize integration” re 2 The complete text of this statement appears as Appendix C in a petition filed by CBE with this Court on January 29, 1975, No. 75-1077. 3 Said statement appears as Appendix D in petition No. 75-1077. 4 373 F.2d 75 (1967 ). 5 quiring for the first time decisions based upon race for the purpose of achieving an adequate constitutional remedy.5 Initial and partial implementation of the 1971 desegregation plan began in September of 1971 under the supervision of the District Court. Petitioners took an appeal from this decision on the basis that the deviations from a racial balance in the approved plan were unacceptable and unconstitutional. A cross appeal was taken by CBE contending that remedial measures permitted by this Court in Swann were permissible, not required, and only in a school system found to be in default of its constitu tional obligation; and that CBE was not in default. CBE further contended that the District Court opinion in its refer ence to maximizing integration read the racial balance lan guage in Swann as being constitutionally mandatory' and not merely “a starting point.” In a 2-1 Appellate Court decision rendered on October 11, 1972 the case was remanded to the District Court. Following a motion for rehearing and suggestion of rehearing en banc by petitioners, a rehearing en banc was granted with oral argument taking place on December 14, 1972. On April 30, 1973, 477 F,2d 851, an en banc decision of the Court of Ap peals reversed the 2-1 decision and affirmed the District Court s opinion.6 In the summer of 1973 and as a result of the experience of two years under the amended desegregation plan, CBE, having experienced substantial withdrawal of white students from the system, conducted a careful evaluation of the system and particularly the possible causes of the withdrawal from the schools. The 1971 amended desegregation plan had not been fully implemented in the elementary and junior high schools 5 329 F.Supp. 1374 (1 9 7 1 ). 6 477 F .2d 851, with Judges Weick and O’Sullivan dissenting and with a separate concurrence by Judge Miller, 6 during the two years experience under examination. CBE also made a projection of the possible impact upon the system of additional busing projected for full implementation of the plan. Recognizing the possible constitutional obligation upon a board to avoid inaction which might later be alleged to have contributed to student resegregation, CBE, on July 20, 1973, filed a Motion for Further Relief: to Adjust Amended Plan of Desegregation, as filed June 16, 1971. An extended evidentiary hearing was held in Gctber of 1973 in which the actual ex perience of CBE in September of 1971, September 1972, and September 1973 was presented to the District Court, as well as CBE’s plan for attempting to counter the white student withdrawal as reflected by the statistical data for the three years in question. In rebuttal, Petitioners offered testimony with reference to the probable impact of the completion of annexation (then imminent) of certain areas contiguous to the Chattanooga system with said areas being populated predominately by white students. CBE’s motion to amend the plan was denied in an opinion entered on November 16, 1973. Such opinion provided specific guidelines to CBE as to the creation of zones with reference to annexed schools, the adjustment of zones within the system, and further providing that any such creation or adjustment of zones would be required to be submitted to the federal court 30 days prior to their effective date. On December 26, 1973, Petitioners filed a motion to amend the memorandum opinion of November 16, 1973 and for a new trial and further relief. Said motion was supplemented with an amendment on January 7, 1974. Said motion was denied by the District Court on June 20, 1974 and subsequent thereto on July 12, 1974 Petitioners filed a notice of appeal requesting a complete new desegregation plan for the Chatta nooga system. Subsequent thereto on July 22, CBE filed a cross appeal with reference to the District Court’s denial of its 7 motion to amend the plan. Both cases were docketed in the Appellate Court on September 30, 19747 The appellate oral argument was held on April 18, 1975 resulting in a 2-1 decision affirming the District Court without qualifications, said opinion being filed on October 20, 1975.7 8 Thereafter, the Petitioners filed “Motion for Rehearing or Re hearing en banc” on November 4, 1975 followed by an “Amend ed Petition for Rehearing and Suggestion of Rehearing en banc” on November 21, 1975, pursuant to a grant of extension in time in which to file said amendment, having been noted on November 4, 1975. In the interim between the filing of the original motion for rehearing and the filing of the petition for rehearing, this Court granted certiorari in the case of Pasadena City Board of Educa tion, et al. v. Nancy Anne Spangler, et al. and United States of America, No. 75-164, on November 11, 1975. In the amended petition of November 21, 1975 Petitioners brought to the attention of the Court of Appeals the second question presented in the petition for writ of certiorari filed on behalf of the Pasadena City Board of Education which read as follows: “2) Is a school system required to amend its judicially validated desegregation plan to accommodate for annual demographic changes for which it is in no way respon sible? Id., at 3271.” The Petitioners went on to suggest that this Court’s decision in Spangler might clarify the language of Swann with respect to the need for “year to year adjustments” and provide guid ance to the Court of Appeals in re-evaluating its decision in the Chattanooga case. In the conclusion to their petition of No 7 For a more complete statement of the facts from July, 1955 foiwaid, see Appendix E to CBE’s petition before this Court, No. 75-1077. 8 Pages 8 (a ) through 2 7 (a ) inclusive in Petitioners’ Appendix and pages 1 (a ) through 1 7 (a ) of Respondent’s petition in No. 75-1077. 8 vember 21, 1975, Petitioners went on to request that any action upon their motion for rehearing be stayed, pending this Court’s decision in Spangler, supra. Upon receiving notification on November 11, 1975 of the action of this Court in granting certiorari in Spangler, CBE’s counsel requested and received a copy of the petition for writ of certiorari as filed on behalf of the Pasadena School Board. Following an analysis of this petition, CBE sought and received permission from counsel in the Spangler case to file an amicus curiae brief in that case. The brief was filed in the last week of December 1975. On January 27, 1976 an order by the Appellate Court was filed denying Petitioners’ petition for a rehearing.9 The next day, Wednesday, January 28, 1976, a petition by CBE seeking a writ of certiorari to review the judgment of the United States District Court, Eastern District of Tennessee, Southern Division, made and entered into this case pursuant to the memorandum opinion of November 16, 1973, and/or the affirmance of said opinion of the District Court affirmed by the United States District Court of Appeals for the Sixth Circuit on October 20, 1975, was placed in the mail from Cin cinnati, Ohio directed to the Clerk of the United States Su preme Court, On the following day, Thursday, January 29, CBE received in the United States mail its first notice of the action of the United States Court of Appeals for the Sixth Circuit in the form of a copy of an order denying the petition for rehearing of plaintiffs-appellants, James Jonathan Mapp, et al, in No. 74-2100, as filed on Tuesday, January 27. Said petition by CBE was received and filed by the Clerk of this Court on Friday, January 30. Petitioners herein did not respond to said petition by CBE. On Saturday, April 17, 1976, counsel for CBE received a copy of a letter addressed to counsel for Petitioners herein from the clerk of this court dated April 14, 1976, indicating this Court’s 9 Pages 2 8 (a ) , 2 9 (a ) Petitioners’ Appendix, and pages 18a, 19a of Respondent’s Appendix hereto. ■ 9 request that Petitioners herein respond to the January 30, 1976 petition by CBE, No, 75-1077. Subsequent thereto on Monday, April 26, 1976, this petition was filed with the Clerk of this Court and counsel for CBE received a copy thereof on April 28, 1976. There are numerous inaccuracies reflected in the statement of the case by Petitioners. Illustrative is the reference on page three referring to the District Court order of February 4, 1972 approving the Board’s plan to establish a system-wide voca tional technical high school. The record will indicate that CBE has maintained a system-wide vocational technical high school since 1966. In fact, counsel for Petitioners excluded consideration of the Kirkman Technical School from the scope of the desegregation plan by a statement in open court during the initial part of the hearing in 1971. The initial appeal from the decision of November 16, 1973 was that of the Petitioners after the District Court Judge de nied their motion to amend said order and for a new trial and/or further relief. It was subsequent to and as a result of this action by Petitioners that the decision was made by CBE to cross appeal from that part of the District Court opinion denying their request for permission to amend its plan. A further inaccuracy is reflected on page six where it is indicated that the four high schools would be "utilized fully for academic programs.” All of the high schools have other than academic programs and the change was to make the programs in all four high schools substantially similar with regard to their educational content including the nonacademic area. In 1971 the Board’s projections with reference to the affirm ative action to desegregate Riverside and Howard were in no part dependent upon current proposals for elementary and junior high school facilities. The initial projections were based upon students actually in the 9th grade, the 10th grade, and the 11th grade in the zones as redrawn at the direction of the Court. 10 An examination of Exhibit B would indicate that the follow ing references on page seven were inaccurate: “Since the plan was not implemented in any meaningful sense in September 1971, . . “No implementation of elementary provisions of the Board’s 1971 plan had occurred by the start of the 1972-73 academic year.” On page nine and ten the Petitioners state: “It also approved the Board’s proposal to assign students from the newly annexed areas to over 80% white facilities.” The proposal to the District Court by CBE in October 1973 did not include any proposals with reference to student assign ment in newly annexed areas subsequent to the hearing. SEASONS FOR DENYING THE WRIT Certiorari should be denied because the decision of the Court of Appeals is consistent completely with applicable de cisions of this Court in Brown 1 and II and its progeny, particu larly Swann. Demographic changes and other changes within a school system, subsequent to district court approval of an amended plan of desegregation, when not caused either directly or in directly by such school system’s action or inaction, have no relevance to the affirmative desegregation constitutional duty of the school system even though undesirable racial propor tions in schools in the system are the result. The argument of the Petitioners ignores cause. They con strue the constitution to require a school board to act affirma tively to eradicate racial segregation no matter what caused the racial segregation; and when their own statement of their interpretation of the Constitution is limited to “state-imposed segregation.”10 10 Petition, p. 14. li And further as primary support for such a constitutional con clusion, Petitioners proceed immediately to quote from this Court’s opinion in Swann v. Charlotte-M ecklenhurg Board of Education, 402 U.S. 1 (1971). Such quotation utilizes “state- enforced discrimination” and “state-imposed segregation” indi cating with unquestioned clarity that this Court was not in any manner directing its attention to racial segregation caused by other than state action. If the Petitioners’ constitutional interpretation is accepted, all of the states of the Union must then assume, as a consti tutional duty, the affirmative obligation to act to remove all racial segregation which may exist in the future, without any consideration of cause. This Court has not so construed the Fourteenth Amendment. Brown I and 11 were concerned solely with complete school segregation created solely by the state.11 Mr. Justice Brennan’s unanimous opinion in Green v. Coun ty School Board o f Neiv Kent County, Virginia, 391 U.S. 430 (1968), the repeated references to “state-imposed segregation” made it clear that this Court was not addressing its attention to racial segregation no matter what its cause.12 Swann, supra, 11 “In each instance they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.” Brown 7, pp. 487-8. (Emphasis added) 1 2 Green, supra, included the following: “. . . the State acting through the local school board and school officials, organized and operated a dual system, . . .” page 435. “. . . in the context of the State-imposed segregated pattern . . .” page 432. “. . . then operating State-compelled dual systems . . . ” page 432. “. . . toward disestablishing State-imposed segregation.” page 439. “. . . for dismantling the State-imposed dual system . . .” page 439. . . and the Court should retain jurisdiction until it is clear that State-imposed segregation has been completely removed.” page 439. “A desegregation program to effectuate conversion of a State- imposed dual system to a unitary, non-racial system . . .” page 441. was completely consistent with this constitutional concept re-enforcing it with eight or more direct references, in a manner such as to permit no suggestion of ambiguity.13 Petitioners’ theory is then supported by wholly inaccurate references to the racial changes since 1971 in an effort to convince this Court that defendant CBE has somehow misled the District Court and the Appellate Court by submitting a paper plan and then failing to implement such plan. The pace and the scope of racial desegregation in the Chatta nooga School System (CSS) is reflected in the eight pages of Exhibit B to this opposition brief. Such is only a minute portion of the statistical facts submitted to the District Court during the evidentiary hearing in October of 1973.14 1 3 “We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of Federal Courts under this Court’s mandates to eliminate racially separate schools established and maintained by state action.” (Em phasis added) Swann, supra, p. 5. “. . . state-imposed segregation by race in public schools denies equal protection of the laws.” p. 11 “. . . where dual school systems had historically been maintained by operation of state laws.” Such is followed by a quote from Green which includes the term ‘state-imposed segregation.’ p. 13 “. . . the massive problem of converting from the state-enforced discrimination . . .” p. 14 “. . . to eliminate from the public schools all vestiges of state- imposed segregation . . .” p. 15 “. . . the responsibilities of school authorities in desegregating a state-enforced dual school system . . .” p. 18 “. . . a potent weapon for creating or maintaining a state- segregated school system . . .” p. 21 l 4 Exhibit No. 3, Book entitled, “Chattanooga Public Schools, Chatta nooga, Tennessee, Attendance Zones. Pupil Enrollment Data, Part III, Summary Analysis of Enrollment Experience, Black-White Ratio Sta bility” introduced as evidence (with a copy handed to local counsel, Mr. Williams) on October 3, 1973, Volume I, page 148 of the trial transcriot. Such data was prepared from school system summary reports Form O S/CR 102, entitled “Elementary and Secondary School Civil 13 Petitioners represent to this Court (p. 15) that ‘ By the end of the 1972-73 academic year, however, little of the 1971 desegregation plan had advanced beyond the drawing board. (It should be remembered that dual zones had been en tirely disestablished in this system in 1988.) Twenty-three (23) of the twenty-nine (29) elementary schools were then desegregated. One all-black elementary school, Avondale, had shifted from all-white in 1962-63, to all-black in 1971-72 with out any action upon the part of CBE. Bell, Donaldson, Pine- ville, Piney Woods, and Trotter had not been desegregated because of the lack of transportation needed to implement the 1971 amended plan. East Lake, Highland Park, Howard, Normal Park, Orchard Knob, Pineville and Smith were not substantially desegregated because of the same reason. How ever, such implementation was ordered by the District Court s opinion of November 16, 1973, which is the subject of this appeal. Since such final compliance transpired subsequent to the October 1973 hearing, these facts are not in the record on appeal as it was fully implemented in January-February of 1974. The statistical and other evidence of such imple mentation is now a part of the District Court record as an exhibit to an affidavit of the School Superintendent, Dr. James W. Plenry, filed on August 2, 1974. Such facts were made available to the Court of Appeals prior to or during the oral argument of April 18, 1975. The tone and detail of the Petitioners’ argument is designed to convince this Court that CBE has somehow hoodwinked both the District and the Appellate Court. The facts reflected in Exhibit B considered alone negate any such conclusion or inference. The respondent suggests that judicial notice of these facts is necessary for the Court s evaluation of factual inaccuracies which appear throughout the petition. In the first full paragraph on page 16, the petition com- Rights Survey” filed each year by CBE as required under Title VI of the Civil Rights Act of 1964, U.S. Department of Health, Education and Welfare, Office of Civil Rights, Washington, D. C. 14 plains that the action of the District Court Judge character izes “the situation as one in which a . . . plan . . . had been implemented fully . . The record is that the District Court in 1973 ordered full implementation of the elementary and junior high schools but recognized that the high school part of the plan had been fully implemented by the introduction of zoning at the high school level.15 Freedom of choice for the high schools only had been in effect since 1968 since the dual zones had been abolished. The three formerly all-white high schools had been substantially desegregated voluntarily by 1971. (See Exhibit B, p. 27a). The dissent at the Appellate level confirms the above analysis with reference to elementary and junior high schools with the opening sentence of his dissent from the denial of the petition to rehear: “Although the Board of Education of the City of Chatta nooga has at long last, under orders of the Supreme Court, and the United States District Court, proceeded to bring its grade schools and junior high schools into com pliance with the Constitution o f the United States, as to two of its high schools it has signally failed to do so.” (emphasis added) Petitioners confusion is further reflected on page 18 where it states that the Court of Appeals, “. . . operated on the in correct assumption that the 1971 (high school) provisions had been fully implemented in September of 1971.” Such was a fact, and not an incorrect assumption, evident from the record, not challenged in the trial court.56 The plan did not 5 5 Mapp v. Board of Education, 366 F.Supp. 1257 (1973) p. 1261: ‘It further appears from the testimony given upon the recent trial of this cause that the defendants are prepared to promptly effect implementation of the final school desegregation plan herein ap proved. Such implementation shall be effected no later than the commencement of the midyear school semester.” 56 p- 27a of Appendix B, hereto. 15 produce its desired result as to high schools, but such was not due to failure to implement, but for other reasons be yond the control of CBE and so found to be a fact by the District Court; a fact found by the Court of Appeals not to be clearly erroneous.17 The allegation that CBE has immunized its system “from effecting any meaningful desegregation” is in stark contrast to the results. So is the charge that it pursued “every tactical advantage to postpone the day when its implementation is actually required.” (p. 19) 17 pp. 5a, 6a of Appendix A hereto: Having implemented the plan for desegregating the high schools by establishing zones for attendances which were designed to achieve a high degree of racial balance throughout the system, and having provided further for continuance of a majority-to- minority transfer policy, the district judge conceived that he had obeyed the mandate of Brown v. Board of Education of 2 opeka II, 349 U.S. 294 (1955) (Brown II) and more particularly of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). So do we. Presumably, the district judge might have or dered a further realignment when the first plan did not achieve the proper balance ratio, and yet another if that did not hold. Indeed if such were found to have been required to carry out the constitu tional mandate to eliminate the vestiges of a dual system, it would simply have to be done, and we have no doubt the district judge would faithfully have carried out that duty. What he was finally faced with here, however, was rather a more subtle and lingering malaise of fear and bias in the private sector which persisted after curative action had been taken to eliminate the dual system itself. Swann v. Board of Education recognizes that this latter may be beyond the effective reach of the Equal Protection Clause: “Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disportionate racial concentrations in some schools.” Swann v. Board of Education, supra, 402 U.S. at 23 16 CONCLUSION For the foregoing reasons it is respectfully submitted: (1) that the petition should be denied and that a Writ of Certi orari to the United States Court of Appeals for the Sixth Circuit should not issue in case No. 74-2100, Petitioners’ ap peal to the Appellate Court; and (2) as the petition by CBE to this Court, No. 75-1077, requests an affirmance of the Ap pellate Court decision and that of the District Court, that the petition of CBE No. 75-1077, also be denied, including No. 74-2101. Respectfully submitted, W ITT, GAITHER, RICHARDSON, HENNISS & WHITAKER RAYMOND B. W ITT, JR. Attorneys for Respondent Chattanooga Board of Education 1100 American National Bank Building Chattanooga, Tennessee 37402 Date: May 13, 1976 APPENDIX A Nos. 74-2100 and 74-2101 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT J ames J onathan Mapp, et al., Plaintiffs-Appellants (74-2100), Plaintiffs-Appellees (74-2101), v. T he B oard of E ducation of the C ity of Chattanooga, T ennessee, et a l, Defendants-Appellees (74-2100), Defendants-Appellants (74-2101). A p p e a l from the United States District Court for the Eastern District of Tennessee. Decided and Filed October 20, 1975. Before: W eick, E dwards and E ngel, Circuit Judges. E ngel, Circuit Judge, delivered the opinion of the Court in which W eick, Circuit Judge, joined. E dwards, Circuit Judge (pp. 7a-17a), delivered a separate dissenting opinion. E ngel, Circuit Judge. This desegregation case is once more before the court,' this time on cross-appeals from an order of the district court entered June 24, 1974. That order denied motions filed by both parties to modify or amend an earlier order of the court entered December 18, 1973, directed imple- ' For previous decisions of this court in this litigation see Mapp v. Board of Education of Chattanooga, 295 F . 2d 617 (6th Cir 1961) 319 F. 2d 571 (6th Cir. 1963 ), 373 F . 2d 75 (6th Cir. 1967). 477 F. 2d 851 (6th Cir. 1973), cert, denied 414 U.S. 1022, la 2a mentation of the final school desegregation plan previously ap proved by the court with certain modifications. The December 18, 1973 order provided as well that “[To] the extent the Court has previously given only tentative approval to the High School Zoning Plan, the same is now approved finally.” Both appeals in effect seek to relitigate all of those same issues which we decided in an en banc decision in this court, reported in Mapp v. Board of Education o f Chattanooga, 477 F. 2d 851 (6th Cir. 1973), cert, denied, 414 U.S. 1022 (1973). We there affirmed a final plan of desegregation in all respects except as to the high schools in Chattanooga. While the district judge had at that time approved the plan as to Kirkman Technical High School, and our affirmance made the same final, District Judge Frank W. Wilson had given only tentative approval to the plan for desegregation for other high schools in the City of Chattanooga, see Mapp v. Board of Education of Chattanooga, 341 F. Supp. 193 (E.D. Tenn. 1972), being uncertain particularly whether three rather than four general purpose high schools would be feasible or desir able in Chattanooga. With respect to Judge Wilson’s refusal to modify the previ ous final plan of desegregation, we find that he did not abuse his discretion in so doing, particularly since this court has given its approval of that plan. Accordingly, we see as the sole issue remaining on this appeal the question of whether the district judge erred in or dering final approval of the tentative plan of desegregation for the Chattanooga high schools. At the time the tentative plan was proposed, it was an ticipated that the zoning for the four high schools would produce a racial balance approximately as follows: Black Students White Students Brainerd High School 32% 68% Chattanooga High School 44% 56% Howard High School 75% 25% Riverside High School 75% 25% 3a When, however, the plan was placed into effect in the fall of 1971 rather than having the attendance anticipated, the four high schools experienced the following racial balance: Black Students White Students Brainerd High School 39% 61% Chattanooga High School 43% 57% Howard High School 99% 1% Riverside High School 99% 1% While an actual head count had showed that as late July 1971 there were 393 (29%) white high school students in the Howard High School zone and 311 (29%) white students in the Riverside zone, only ten reported that September to Howard and three to Riverside. It is the contention of the plaintiffs that a school board’s duty in a previously dual and segregated school system cannot be said to have been performed where, after implementation of a plan of desegregation, such an imbalance in the racial mix of the students yet remains. After taking extensive testimony on this issue and on the other issues raised by the parties’ mo tions to amend the earlier judgment, Judge Wilson, in his Memorandum Opinion of November 16, 1973, made the follow ing findings of fact: To the extent that the Court has previously given only tentative approval to the high school zoning plan, final approval will now be given that plan. Two high schools, Howard High School and Riverside High School, have not acquired an enrollment of white students as projected by the Board when the plan was proposed in 1971, but rather have remained substantially all black. It was a concern for the accuracy of these projections that caused the Court to initially give only tentative approval to the high school zoning plan. However, subsequent evidence has now demonstrated that changing demographic conditions within the City and other de facto conditions beyond the control and responsibility of the School Board, including 4a the voluntary withdrawal of white students from the sys tem, have become the causative factors for the present racial composition of the student body in those schools and not the original action of the Board in creating seg regated schools at these locations. It should be recalled in this connection that the plan previously approved in cluded provision for students to elect to transfer from a school in which they were in a majority to a school in which they would be in a minority. While the cause of the departure of white students was disputed, there can be little doubt upon the record that the difference between the anticipated mix and the actual atten dance of the high schools when the plan was put into effect was due to a substantial departure of white students from the public schools in Chattanooga, a circumstance which the dis trict judge found to have occurred beyond the control and responsibility of the School Board. No one who firmly believes in the social and educational value of racial balance in a desegregated school system can help being seriously concerned when such a plan for achieving racial balance does not achieve its objectives on implementa tion. That such a concern was shared by the district judge is manifest throughout the entire record upon appeal. Neverthe less, the district judge concluded that the demographic changes in the city itself were the cause of the remaining imbalance, a finding which finds support in the record and which we hold is not clearly erroneous. We are satisfied that, in giving final approval to the high school desegregation plan, Judge Wilson was by no means yielding to irrational concerns over white flight which merely masked inherent Board resistance to integration. To the con trary, he carried out the plan in spite of the apprehended re sult, and beyond that resisted the defendant board s further efforts to modify the earlier approved plan for the remainder of the system with this language in his November 27, 1973 opinion: 5a “The Court is not unsympathetic to the concern expressed by the Board for minimizing the voluntary departure of white students from the system. It must be apparent, however, that this objective cannot serve as a limiting factor on the constitutional requirement of equal protec tion of the laws, nor as a justification for retaining cle jure segregation. Concern over ‘white flight’, as the phenom enon was often referred to in the record, cannot become the higher value at the expense of rendering equal pro tection of the laws the lower value. As stated by the United States Supreme Court in the case of Monroe v. Board of Commissioners, 391 U.S. 450 . . . : “We are frankly told in the Brief that without the transfer option it is apprehended that white students will flee the school system altogether. ‘But it should go without saying that the vitality of these constitu tional principles cannot be allowed to yield simply because of the disagreement with them.’ ” Brown 11 at 300, . . . “Moreover, it is the ‘effective disestablishment of a dual racially segregated school system’ that is required, Wright v. Council o f City of Emporia, 407 U.S. 451 . . . not, as seems to be contended by the defendants, the most ‘effec tive’ level of voluntarily acceptable ‘mixing’ of the races.” (Footnote omitted) Having implemented the plan for desegregating the high schools by establishing zones for attendances which were de signed to achieve a high degree of racial balance throughout the system, and having provided further for continuance of a majority-to-minority transfer policy, the district judge con ceived that he had obeyed the mandate of Brown v. Board of Education of Topeka II, 349 U.S. 294 (1955) (Brown II) and more particularly of Swann v. Charlotte-M ecklinburg of Edu cation, 402 U.S. "l (1971). So do we. Presumably, the district judge might have ordered a further realignment when the first plan did not achieve the proper balance ratio, and yet 6a another if that did not hold. Indeed if such were found to have been required to carry out the constitutional mandate to elim inate the vestiges of a dual system, it would simply have to be done, and we have no doubt the district judge would faithfully have carried out that duty. What he was finally faced with here, however, was rather a more subtle and lingering malaise of fear and bias in the private sector which persisted after curative action had been taken to eliminate the dual system itself. Swann v. Board of Education recognizes that this latter may be beyond the effective reach of the Equal Protection Clause: Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or in directly, on account of race; it does not and cannot em brace all the problems of racial prejudice, even when those problems contribute to disproportionate racial con centrations in some schools.” Swann v. Board o f Education, supra, 402 U.S. at 23 Affirmed. E dwards, Circuit Judge, dissenting. This appeal presents just one significant question: Should we now, under applicable Supreme Court precedent, affirm the District Judge’s final order of December 18, 1973, approving a final desegregation order applicable to the Chattanooga high schools? With all respect for the sincerity of my colleagues, I can not join the majority opinion, or approve its result. If the majority opinion prevails in this court and in the Supreme Court, it will establish as law the proposition that approxi mately 60% of the black children in the high schools of the Chattanooga public school system may be continued forever in complete racial segregation in all black schools which were built as such under state law which required a racially dual school system and which have been continuously segregated as such down to this very moment. I cannot square this propo sition with the great command of the Fourteenth Amendment to provide all American citizens “the equal protection of the laws.” The rule of this case is all the more significant because the smaller numbers, the maturity, and the greater mobility of high school students tend to make practical accomplishment of high school desegregation the least difficult part of the task mandated by Brown v. Board of Education of Topeka , 347 U.S. 483 (1954); Green v. County School Board of New Kent County, 391 U.S. 430 (1968) and Sivann v. Charlotte-M eck- lenburg Board of Education, 402 U.S. 1 (1971). The en banc per curiam opinion of the Sixth Circuit ( Mapp v. Board of Education of the City o f Chattanooga, Tennessee, 477 F.2d 851 (6th Cir.), cert, denied, 414 U.S. 1022 (1973)) constituted unqualified approval of two previously entered opinions and judgments of Judge Wilson, Mapp v. Board of Education of the City of Chattanooga, 329 F. Supp. 1374 ( E.D. Tenn. 1971); Mapp. v. Board of Education of the City of Chat tanooga, 341 F. Supp. 193 (E.D. Tenn. 1972). In these two cases Judge Wilson had approved final desegregation orders concerning the grade schools and junior high schools. Equally 7a 8a clearly, he had not approved any final desegregation plan for the high schools. As to the high schools, in his first opinion he said: High Schools During the school year 1970-71, the Chattanooga School System operated five high schools. These included four general curricula high schools and one technical high school. Kirkman Technical High School offers a special ized curricula in the technical and vocational field and is the only school of its kind in the system. It draws its stu dents from all areas of the City and is open to all students in the City on a wholly non-discriminatory basis pursuant to prior orders of this Court. Last year Kirkman Technical High School had an enrollment of 1218 students, of which 129 were black and 1089 were white. The relatively low enrollment of black students was due in part to the fact that Howard High School and Riverside High School, both of which were all black high schools last year, offered many of the same technical and vocational courses as were offered at Kirkman. Under the defendants’ plan these programs will be concentrated at Kirkman with the result that the enrollment at Kirkman is expected to rise to 1646 students, with a racial composition of 45% black students and 55% white students. No issue exists in the case but that Kirkman Technical High School is a special ized school, that it is fully desegregated, and that it is a unitary school. While some variation in the curricula exists, the remain ing four high schools, City High School, Brainerd High School, Howard High School, and Riverside High School, each offer a similar general high school curriculum. At the time when a dual school system was operated by the School Board, City High School and Brainerd High School were operated as white schools and Howard High School and Riverside High School were operated as black schools. At that time the black high schools were zoned, but the white high schools were not. When the dual school sys- 9a tem was abolished by order of the Court in 1962, the defendants proposed and the Court approved a free dom of choice plan with regard to the high schools. The plan accomplished some desegregation of the former white high schools, with City having 141 black students out of an enrollment of 1435 and Brainerd having 184 black students out of an enrollment of 1344 during the 1970-71 school year. However, both Howard, with an enrollment of 1313, and Riverside, with an enrollment of 1057, remained all black. The freedom of choice plan “having failed to undo segregation * * * freedom of choice must be held unacceptable.” Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The School Board proposes to accomplish a unitary school system within the high schools by zoning the four general curricula high schools with the following results in terms of student ratios: Black Students White Students Brainerd High School 32% 68% Chattanooga High School 44% 56% Howard High School 75% 25% Riverside High School 75% 25% The plaintiffs have interposed objections to the defen dants’ high school plan upon the ground that it does not achieve a racial balance in each school. To some extent these objections are based upon matters of educational policy rather than legal requirements. It is of course ap parent that the former white high schools, particularly Brainerd High School, remain predominantly white and that the former black high schools remain predominant ly black. However, the defendants offer some evidence in support of the burden cast upon them to justify the remaining imbalance. The need for tying the high school zones to feeder junior high schools is part of the defen dants’ explanation. Residential patterns, natural geograph ical features, arterial highways, and other factors are also part of the defendants’ explanation. 10a A matter that has given concern to the Court, however, and which the Court feels is not adequately covered in the present record, is the extent to which the statistical data upon which the defendants’ plan is based will correspond with actual experience. Among other matters there ap pears to be substantial unused capacity in one or more of the city high schools. Before the Court can properly evaluate the reliability of the statistical data regarding the high schools, the Court needs to know whether the un used capacity does in fact exist and, if so, where it exists, whether it will be used and, if so, how it will be used. It would be unfortunate indeed if experience shortly proved the statistical data inadequate and inaccurate and this Court was deprived of the opportunity of considering those matters until on some appellate remand, as occurred in the recent case of Davis v. Board of School Commis sioners of Mobile, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577. The plaintiff has submitted a high school plan with high school zones which the plaintiff’s witness has testified will achieve a racial balance in each high school. However, this plan is not tied into the junior high school plan here inabove approved and the Court is unable to say whether it could be so tied it. Furthermore, the same statistical problem discussed above would appear to exist with re gard to the plaintiff’s plan. The Court accordingly is unable to give final approval to a high school desegregation plan at this time. Time, however, is a pressing factor. Pre-school activities will commence at each high school within less than a week, if in fact they have not already commenced. Full com mencement of the fall term is only one month away. It is clear that the high schools must move at least as far as is proposed in the defendants high school plan. Accord ingly, the Court will give tentative approval only at this time to the defendants’ high school plan in order that at least as much as is therein proposed may be placed into operation at the commencement of the September 1971 term of school. Further prompt but orderly judicial pro 11a ceedings must ensue before the Court can decide upon a final plan for desegregation of the high schools. In the meanwhile, the defendants will be required to promptly provide the Court with information upon the student capacity of each of the four high schools under discussion, upon the amount of unused space in each of the four high schools, the suitability of such space for use in high school programs, and the proposed use to be made of such space, if any. In this connection the de fendants should likewise advise the Court regarding its plan as to tuition students. Last year almost one-third of the total student body at City High School were non resident tuition paying students. There is no information in the present record as to the extent the Board proposes to admit tuition students nor the effect this might have on the racial composition of the student body. The Court has no disapproval of the admission of tuition students nor to the giving of preference to senior students in this regard, provided that the same does not materially and unfavorably distort the student racial ratios in the respec tive schools. Otherwise, the matter of admitting tuition students addresses itself solely to the discretion of the Board. No later than the 10th day of enrollment the de fendants will provide the Court with actual enrollment data upon each of the four high schools here under dis cussion. Mapp v. Board of Education of the Citu of Chattanooga, supra at 1384-86. In his second opinion he said: Tentative approval only having heretofore been given to the School Board plan for desegregation of the Chatta nooga high schools other than Kirkman Technical High School (to which final approval has been given). Further consideration must be given to this phase of the plan. At the time that the Court gave its tentative approval to the high school desegregation plan, the Court desired addi tional information from the Board of Education as to 12a whether three, rather than four, general purpose high schools would be feasible or desirable in Chattanooga. It now appears, and in this both parties are in agreement, that three general purpose high schools rather than four is not feasible or desirable, at least for the present school year. Having resolved this matter to the satisfaction of the Court, the defendant Board of Education will accord ingly submit a further report on or before June 15, 1972, in which they either demonstrate that any racial imbal ance remaining in the four general purpose high schools is not the result of “present or past discriminatory action on their part” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 26, 91 S.Ct. at 1281, 28 L.Ed.2d 554 at 572, or otherwise, and to the extent that the Board is unable to demonstrate that such racial imbalance which remains is not the result of past or present discriminatory action, they should submit a further plan for removal of all such remaining racial discrimination, the further plan likewise to be submitted on or before June 15, 1972. Mapp v. Board of Education of the City o f Chattanooga, supra at 200, The opinion and order we now review are quite different, and if approved by this Court and the Supreme Court, would represent both a final approval of the school boards current “plan” for operation of the high schools and holding that the present operation represents desegregation of the previously legally segregated dual high school system. In the opinion we now review Judge Wilson said: The Court is accordingly of the opinion that the de fendants have failed to establish either such changed con ditions as would render its formerly court-approved plan of school desegregation inadequate or improper to remove “all remaining vestiges of state imposed segregation or that its newly proposed plan would accomplish that result. To the extent that the Court has previously given only tentative approval to the high school zoning plan, final 13a approval will now be given that plan. Two high schools, Howard High School and Riverside High School, have not acquired an enrollment of white students as projected by the Board when the plan was proposed in 1971, but rather have remained substantially all black. It was a concern for the accuracy of these projections that caused the Court to initially give only tentative approval to the high school zoning plan. However, subsequent evidence has now demonstrated that changing demographic con ditions within the City and other de facto conditions beyond the control and responsibility of the School Board, including the voluntary withdrawal of white students from the system, have become the causative factors for the present racial composition of the student body in those schools and not the original action of the Board in creating segregated schools at these locations. It should be re called in this connection that the plan previously ap proved included provision for students to elect to transfer from a school in which they were in a majority to a school in which they would be in a minority. Mapp v. Board of Education of the City o f Chattanooga, 366 F. Supp. 1257, 1260-61 (E.D. Tenn. 1973). Thus, clearly, we now have before us the issue as to whether or not in the Chattanooga high schools previous unconstitu tional segregation has been eliminated root and branch. Green v. County School Board of New Kent County, 391 U.S. 430 (1968). Defendant-appellees accept (as they must) the responsi bility of meeting the standard of Green v. County School Board of Kent County, supra-. It is against this background that 13 years after Brown II commanded the abolition of dual systems we must measure the effectiveness of respondent School Board s “freedom-of-choice” plan to achieve that end. The School Board contends that it has fully discharged its obligation by adopting a plan by which every student, regardless of race, may ^freely” choose the school he will attend. The 14a Board attempts to cast the issue in its broadest form by arguing that its “freedom-of-choice” plan may be faulted only by reading the Fourteenth Amendment as universally requiring “compulsory integration,” a reading it insists the wording of the Amendment will not support. But that argument ignores the thrust of Brown II. In the light of the command of that case, what is involved here is the question whether the Board has achieved the “racially nondiscriminatory school system” Brown II held must be effectuated in order to remedy the established unconsti tutional deficiencies of its segregated system. In the context of the state-imposed segregated pattern of long standing, the fact that in 1965 the Board opened the doors of the former “white” school to Negro children and of the Negro ’ school to white children merely begins, not ends, our inquiry whether the Board has taken steps ade quate to abolish its dual, segregated system. Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-com pelled dual systems were nevertheless 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. See Cooper v. Aaron, supra, at 7; Bradley v. School Board, 382 U.S. 103; cf. W atson v. City of Memphis, 373 U.S. 526. The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown I I commanded school boards to bend their efforts.4 4 “W e bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible elimin- nate the discriminatory effects of the past as well as bar like discrimination in the future.” Louisiana v. United States, 380 U. S. 145, 154. Compare the remedies discussed in, e. g., NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241; 15a In determining whether respondent School Board met that command by adopting its “freedom-of-choice” plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown I I directed the making of a “prompt and reason able start.” This delibei-ate perpetuation of the unconsti tutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for “the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.” Watson v. City of Memphis, supra, at 529; see Bradley v. School Board , supra; Rogers v. Paul, 382 U.S. 198. Moreover, a plan that at this late date fails to provide meaningful as surance of prompt and effective disestablishment of a dual system is also intolerable. “The time for mere ‘de liberate speed’ has run out,” Griffin v. County School Board, 377 U.S. 218, 234; “the context in which we must interpret and apply this language [of Brown II] to plans for desegregation has been significantly altered.” Goss v. Board of Education, 373 U.S. 683, 689. See Calhoun v. Latimer, 377 U.S. 263. The burden on a school board today is to come forward with a plan that promises real istically to work, and promises realistically to work now. Green v. County School Board of New Kent County, supra at 437-39. At the outset we note that we deal with a school district which at the time of the beginning of this litigation was clearly and concededly a dual school system segregated by race according to state statute. We therefore are required to determine whether or not a public school system (racially constituted during the 1973-74 school year as follows) can be held by this court to have been desegregated “root and branch”: United States v. Crescent Amusement Co., 323 U. S. 173; Standard Oil Co. v. United States, 221 U. S. 1. See also Griffin v. County School Board, 377 U. S. 218, 232-234. 16a White Black % White % Black Howard 10 999 1 99 Riverside 3 721 1 99 Chattanooga 439 330 57 43 Brainerd 646 404 61 39 There can, of course, be no doubt that Howard and River side High Schools are “racially separate public schools estab lished and maintained by state action.” Swann v. Charlotte- M ecklenburg Board of Education , 402 U.S. 1, 5 (1971). Both were built as Negro schools under state law which required a dual school system. T.C.A. §§2377, 2393.9 (Williams 1934). Twenty-one years after decision of Brown v. Board of Educa tion o f Topeka, 347 U.S. 483 (1954), both high schools (en compassing 60% of the black high school population of Chatta nooga) are still (and always have been) essentially 100% black. As to these schools and students, there has been no desegregation at all. Defendants-Appellees contend that two measures which they took should be accepted as the equivalent of desegregation. They are: 1) the inauguration of a freedom of choice plan, and 2) a change in zone boundaries which was calculated (it is claimed) to introduce 25% of white students into both high schools. Defendants-appellees freely admit that neither mea sure was effective in changing the segregated character of the Howard and Riverside High Schools. At to the freedom of choice plans, the Supreme Court has repeatedly held that ineffective freedom of choice plans are not a substitute for desegregation in fact. See Green v. County School Board of New Kent County, supra; Monroe v. Board o f Commissioners o f the City o f Jackson, 391 U.S. 450 (1968). Defendants-appellees’ strongest reliance is upon the second contention that they “zoned” 25% white students into Howard and Riverside but that the white students thus assigned avoided the assignment by “white-flight.” As to this measure, we have 17a no findings of fact concerning defendants-appellees’ conten tion. But if we assumed their truth, we clearly would not have exhausted the possibilities for successful desegregation nor satisfied the constitutional command. Many possibilities for desegregation remain, including pairing of white and black schools and high school construction which would make de segregated zones more feasible. In any instance, the defen dant school board should be required to propose a new and realistic plan to meet its constitutional duty. See Swann v. Charlotte-M ecklenbiirg Board of Education , supra, at 15-21; Brinkman v. G illigan ,---- F .2 d ------(6th Cir. 1975) ( Decided June 24, 1975, No. 75-1410). In my judgment the case should be affirmed as to the grade schools and junior high schools. The judgment should be vacated and remanded as to the high schools. All other issues presented by either party should be summarily denied. 18a UNITED ST A T E S C O U R T O F A PPEA LS F O R T H E S IX T H C IR C U IT No. 74-2100 JA M ES JONATH AN MAPP, et a!., Plaintiffs-Appellants, v. T H E BO A R D O F E D U C A T IO N O F TPIE C IT Y O F CHATTAN OOGA, et al., Defendants-Appellees. O R D E R (Filed January 27, 1976) Before: WEICK, EDWARDS and ENGEL, Circuit Judges. This cause came on for hearing on the petition for re hearing with a suggestion that it be reheard en banc. Judges Edwards and McCree having requested en banc rehearing for the reasons set forth in Judge Edwards’ dis senting opinion, but it appearing to the court that less than a majority of the court has voted in favor thereof, the petition for rehearing was referred to the panel which originally heard the appeal and was determined not to be well taken, Judge Edwards dissenting. It is therefore ordered that the petition for rehearing be denied. ENTERED BY ORDER OF THE COURT /s/ JOHN P. HERMAN Clerk 19a Re: James Jonathan Mapp v. The Board of Education of the City of Chattanooga, Tennessee No. 74-2100 EDWARDS, Circuit Judge, dissenting. Although the Board of Education of the City of Chattanooga has at long last, un der orders of the Supreme Court of the United States, this court, and the United States District Court, proceeded to bring both its grade schools and junior high schools into com pliance with the Constitution of the United States, as to two of its high schools it has signally failed to do so. The ma jority opinion of this court would establish as law the propo sition that approximately 60% of the black children of the Chattanooga high school system may be continued forever in complete segregation in ail black high schools. The two black high schools at issue were built as such under state law that required a racially dual school system and have been con tinuously segregated as such down to this very moment. There can be no doubt that the two black high schools are racially separate public schools established and main tained by state action and that as to these schools there has been no desegregation at all. In my judgment it simply can not be said with any accuracy that the possibilities for success ful desegregation have been exhausted. As to these schools the School Board should be required to propose a new and realistic and effective plan to meet its constitutional duty. Report #5-A Elementary Schools chattahooga p u b l i c schools C h a t t a n o o g a , T e n n e s s e e COMPARISON OF TENTH DAY PUPIL ENROLLMENT FOR EACH SCHOOL BY YEAR AND BY RACE FROM 1 9 6 2 - 6 3 TO PRESENT E l e m e n t a r y S c h o o l s 1 0 t h Day E n r o l l m e n t ( R e s i d e n t and N o n r e s i d e n t P u n i l s ) Ainnicol ( 1 - 6 ) Avondale ( 1 - 6 ) B a r g e r ( 1 - 6 ) B e l l ( 1 - 6 ) Brown ( 1 - 6 ) C a r p e n t e r ( 1 - 6 ) C h a t t a . Avenue _______ O z S ) _________ Ce da r H i l l _______ ________________ Y ea r B W T B W T B W T B W T B W T B W T B W T B W T * 1 9 6 2 - 6 3 0 317 317 0 561 561 62 2 0 622 0 368 361 501 0 501 524 0 524 0 171 171 * * 1 9 6 3 - 6 4 . . . 31 8 1 70 4 88 0 543 5 43 5 9 2 0 592 0 332 332 Cloi F i f t ed - I h S t r i a s t e t 481 0 481 0 148 148 )V** 1 9 6 4 - 6 5 . . . . . . 6 39 6 57 0 569 5 69 5 7 3 0 5 7 3 1 319 32C . . . - - - 372 0 372 0 139 139 * * * * 1 9 6 5 - 6 6 . . . . . . 6 2 9 27 6 56 0 547 547 5 6 4 0 564 • 2 3 06 308 ___ ___ Close R a i l r c d - He ad Rel ward o c a t i ( n 0 1 96 196 ■ k k k k k 1 9 6 6 - 6 7 _ _ _ . . . _ 64 1 18 6 59 0 5 1 8 5 1 8 54 5 0 545 114 2 88 4 0 2 C Midi pened l e Sc\ o o l ___ ___ ___ 0 210 2 10 1 9 6 7 - 6 8 _ _ _ 6 4 8 17 6 65 0 4 7 8 4 7 8 57 6 0 5 76 112. 2 64 37 6 373 ( 1 - 4 ) 19 392 . . . ___ ___ 0 187 187 1 9 6 8 - 6 9 Am cjied i Count} rom 6 83 7 6 9 0 0 4 9 4 49 4 574 0 574 125 243 368 331 26 357 ___ ___ ___ 0 162 162 1 9 6 9 - 7 0 69 63 132 6 72 5 6 77 2 4 3 2 43 4 561 6 567 122 2 36 3 58 344 10 354 _ _ _ 0 176 176 1 9 7 0 - 7 1 75 35 110 6 4 0 1 641 2 4 5 3 4 5 5 5 14 9 5 23 121 2 16 337 301 8 3 09 _ _ _ 0 174 174 1 9 7 1 - 7 2 C lo s e and d-C arp R i ve nr e n t e r ont 669 0 66 9 71 ( 4 - 6 ) 258 3 29 4 1 6 2 4 1 8 106 205 311 4 0 6 ( 1 - 6 ) 46 4 52 _ _ __ E Cl ose d a s t La ke 1 9 7 2 - 7 3 ... _ _ 6 6 0 0 6 60 9 0 ( 4 - 6 ) 222 312 421 2 4 2 3 108 2 10 3 18 337 27 364 _ _ _ _ _ _ 1 5 7 3 - 7 4 _ ... _ 6 2 9 0 629 93 20 8 301 3 80 2 382 101 199 3 0 0 3 10 13 323 _ _ ... ... 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 5 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 8 0 Desegregation Schedule: *16 Schools (1-3) **A11 Schools (1-4) ***A11 Schools (1-6) ****A11 Schools (1-7) *****A11-Schools (1.-12) APPEN DIX B Elementary Schools (Continued) 1 0 t h Day E n r o l l m e n t ( R e s i d e n t and N o n r e s i d e n t P u p i l s ) S c h oo l C l i f t o n H i l l s ( 1 - 6 ) Davenport ( 1 - 6 ) Donaldson ( 1 - 6 ) E a s t C h a t t a . _ _ ( 1 - 6 ) ________ E a s t F i f t h ( 1 - 6 ) E a s t Lake ( 1 - 6 1 Ea s t d a l e 1 - 6 ) F o r t Che at ( 1 - 6 ) lam Y e a r B . W T B W 1 T B W T B W T B W T B W xr B w T B w T * 1 9 6 2 - 6 3 0 49C 4 9 6 394 J 394 562 0 5 6 : 0 4 84 484 71C 0 71C 0 6 96 6 96 1 48 4 4 8 5 155 0 155 * * 1 9 6 3 - 6 4 0 513 5 1 3 397 3 4 0 0 5 4 3 0 5 43 3 5 40 543 862 ( 1 - 6 ) 1 862 0 744 744 20 506 52 6 87 0 87 * * * 1 9 6 4 - 6 5 0 514 51 4 355 7 362 5 33 0 5 33 20 5 23 5 4 3 609 41 650 0 6 99 6 99 37 4 5 3 4 9 0 d o s t { d Nov. Freewa 19 63 y) * * * * 1 9 6 5 - 6 6 0 5 16 5 16 354 14 3 68 5 36 0 536 21 4 7 7 4 9 8 6 0 3 32 6 35 0 6 23 6 23 51 4 4 0 4 91 ___ ___ _ * * * * * 1 9 6 6 - 6 7 11 5 18 529 30 8 16 3 24 5 19 0 5 19 23 4 6 5 4 8 8 6 10 24 634 0 601 601 50 44 4 4 94 ___ ___ 1 9 6 7 - 6 8 19 4 6 5 4 8 4 284 19 3 0 3 5 02 0 502 16 4 4 8 4 64 2 0 8 ( 5 - 6 ) 3 211 1 5 62 5 63 71 3 60 4 31 ___ ___ ___ 1 9 6 8 - 6 9 17 4 4 7 4 64 275 18 293 541 0 541 8 4 22 4 3 0 2 0 0 10 210 1 5 4 0 541 1 08 315 4 2 3 ___ ___ ___ 1 9 6 9 - 7 0 18 4 4 6 4 64 255 9 264 5 12 0 5 12 7 4 1 0 4 1 7 152 4 156 1 4 7 0 471 1 50 261 4 11 ...... ___ ___ 1 9 7 0 - 7 1 17 4 1 1 4 2 8 2 34 9 243 471 0 47 1 12 382 394 146 7 153 3 4 3 9 4 42 234 1 80 4 14 ___ - - - 1 9 7 1 - 7 2 27 311 338 C l os e H i - Ho jmlock vard 4 6 2 • 0 4 6 2 41 381 4 2 2 Clos ec 3 5 30 5 33 169 ( 4 - 6 ) 170 339 ___ ___ ___ 1 9 7 2 - 7 3 39 3 59 3 98 . . . . . . 4 37 0 4 37 91 37 4 4 6 5 ___ ___ 2 512 514 244 142 3 86 ___ ___ ___ 1 9 7 3 - 7 4 31 3 49 3 8 0 ___ ___ ___ 4 1 9 0 4 1 9 1 06 2 80 3 86 ___ ___ ___ 4 4 5 5 ' 4 5 9 3 36 111 4 4 7 _ . . . 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 9 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 8 0 Desegregation Schedule: *16 Schools (1-3) **A11 Schools (1-4) ***A11 Schools (1-6) ****A11 Schools (1-7) *****A11-Schools (hl2) _________________ pay Enrollment; (Resident and Nonresident Pupil s) Elementary Schools (Continued) ... . ..... . -- Ga rbe r ( 1 - 6 ) Glenwood ( 1 - 6 ) Henry ( 1 - 6 ) O '•O H i gh l an d P a r k U - 6 ) Howard ( 1 - 6 ) Long ( 1 - 6 ) M i s s i o n a r y ( 1 - 6 ) U d g e Y ea r B W T B W T B W T B W T B W T B W T B W T B W T * 1 9 6 2 - 6 3 0 338 338 19 175 194 32 8 0 328 0 324 324 0 4 1 5 4 15 684 0 684 1 3 20 321 5 380 385 ■** 1 9 6 3 - 6 4 0 34 7 347 60 125 185 285 0 285 0 2 88 288 0 377 377 6 62 0 662 3 301 304 5 3 76 381 ■frk-fi 1 9 6 4 - 6 5 0 353 3 53 1 03 87 1 90 250 0 2 50 19 281 300 0 4 0 5 4 0 5 6 0 6 0 606 0 3 36 3 3 6 4 3 76 3 8 0 1<4e-kie 1 9 6 5 - 6 6 0 3 96 3 96 1 06 63 169 294 0 294 37 262 299 0 4 1 4 4 14 8 06 2 808 1 35 8 3 59 5 3 74 379 * * * * * 1 9 6 6 - 6 7 1 319 32 0 1 30 28 1 58 3 36 0 3 36 54 2 42 2 96 0 4 0 4 4 04 7 83 0 783 5 331 3 36 6 3 58 3 64 1 9 6 7 - 6 8 5 317 322 141 14 1 55 3 59 0 359 89 224 3 13 ■ 0 364 364 7 26 0 7 26 8 38 4 392 5 335 3 40 1 9 6 8 - 6 9 65 2 53 318 16 0 17 177 351 1 3 52 110 204 314 0 37 8 3 78 6 73 0 673 14 4 4 9 4 6 3 5 3 30 3 35 1 9 6 9 - 7 0 155 188 3 43 20 8 7 215 4 0 8 0 4 0 8 83 184 267 0 38 2 382 6 36 0 6 36 29 4 0 8 4 37 7 327 3 3 4 1 9 7 0 - 7 1 242 135 377 246 2 2 48 3 76 0 376 66 195 261 4 35 1 3 55 617 0 617 52 367 4 1 5 11 3 19 3 3 0 1 9 7 1 - 7 2 296 91 387 Close* Ridge* i-M. R l a l e - 0 dge Knob 371 0 371 15 8 175 333 24 264 28 8 615 4 6 19 54 31 7 371 15 8 146 3 04 1 9 7 2 - 7 3 31 0 49 359 . . . . . . 3 39 0 339 15 8 159 317 17 2 33 25 0 5 2 2 4 5 26 4 2 279 321 1 5 3 92 245 1 9 7 3 - 7 4 3 43 33 376 - - - _ _ 2 98 0 291 142 139 2 81 24 18 0 2 0 ' 4 6 6 3 4 6 9 55 2 99 354 1 59 65 224 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 9 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 3 0 Desegregation Schedule; *16 Schools (1-3) **A11 Schools (1-4) ***A11 Schools (1-6) ****A11 Schools (1-7) *****A11-Schools (Lrl2) Elementary Schools (Continued) 1 0 t h Day E n r o l l m e n t ( R e s i d e n t and N o n r e s i d e n t P u p i l s ) Normal Pa rk ( 1 - 6 ) Oak Grove ( 1 - 6 ) O rc h a r d Knob ( 1 - 6 ) P i n e v i l l e ( 1 - 6 ) P i n e y Woods ( 1 - 6 ) R i d g e d a l e d - 6 ) Rivennon ( 1 - 6 ) S in de rs c ( 1 - 6 ) >n Yea r B . W T B W T B W T B W T B W T B W 'T B W T. B W T * 1 9 6 2 - 6 3 0 5 52 5 52 0 4 44 4 4 4 118 9 0 1189 . . . . . . . . . _ _ _ 0 344 344 _ _ — 145 0 14 5 1 9 6 3 - 6 4 0 531 531 42 4 3 0 4 72 118 5 0 1185 . . . . . . Ope i IS cd J a r 64 (Nt u a r y w) 7 35 4 361 _ _ _ 164 0 164 Stick . 1 9 6 4 - 6 5 0 541 541 77 4 0 6 4 8 3 104 8 0 1 048 3 70 0 3 70 46 3 6 8 4 14 „ __ 1 36 3 139 icitick 1 9 6 5 - 6 6 0 5 63 5 63 72 393 4 65 1057 0 1057 3 69 0 369 45 383 4 2 8 ___ ___ ___ 168 0 1 68 * * * * * 1 9 6 6 - 6 7 0 574 5 74 71 354 4 25 1 0 3 3 0 1033 . . . . . . 3 65 0 365 76 339 4 15 ___ ___ ___ 154 0 1 54 1 9 6 7 - 6 8 2 58 6 588 67 331 3 98 101 8 0 101 8 Ann e x e d £ County rom 358 0 358 68 3 03 371 ___ ___ ___ 140 0 1 40 1 9 6 8 - 6 9 4 5 65 569 61 328 389 95 5 0 955 0 131 131 35 5 4 359 83 2 70 3 53 Anti exed i County rom C l o s e t . j i t h 1 -Congo o w a r d , L i d a t e d S t . 1 9 6 9 - 7 0 0 5 35 535 66 301 367 9 26 0 9 2 6 0 152 1 52 33 4 4 338 93 252 345 0 55 4 554 Elmo 6 DonaLdson 1 9 7 0 - 7 1 0 5 35 5 35 67 257 324 7 88 3 791 0 153 1 53 307 1 308 82 252 334 0 561 561 — — . . . 1 9 7 1 - 7 2 2 365 367 71 226 297 731 ■ 4 735 0 153 ' 1 53 277 2 279 92 201 293 73 532 6 05 ___ — ___ 1 9 7 2 - 7 3 4 3 6 6 3 70 104 199 303 6 94 2 69 6 0 157 157 271 0 271 98 2 04 302 65 50 5 57 0 ___ ___ ___ 1 9 7 3 - 7 4 4 4 0 6 4 1 0 119 1 80 299 702 1 703 1 174 175 272 0 272 98 188 286 47 4 5 5 502 __ _ _ 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 9 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 8 0 Desegregation Schedule: *16 Schools (1-3) **A11 Schools (1-4) ***A11 Schools (1-6) ****A11 Schools (1-7) *****A11-Schools (1-12) Elementary Schools (Continued) 10ch Day E n r o l l m e n t ( Res i d e n t and N o n r e s i d e n t P u p i l s ’) S c h o o l S t . Elmo ( 1 - 6 ) Smith ( 1 - 6 ) S p e a r s Avenue ( 1 - 6 ) Su nn yside ( 1 - 6 ) T r o t t e r .......... ( 1 - 6 ) Woodmore ( 1 - 6 ) H i l l c r e s t _______ Q = 6 ) _________ T o t a l E l e m e n t a r y ( 1 - 6 ) Y e a r B W T B W T B W T B W T B W T B W T B W T B W T * 1 9 6 2 - 6 3 6 3 33 344 601 0 601 99 0 99 14 3 09 323 5 55 0 555 0 5 62 562 7115 8 0 7 8 1 5 1 9 3 * * 1 9 6 3 - 6 4 9 351 3 60 5 5 8 0 5 58 98 0 98 38 284 322 5 1 3 0 513 0 5 4 6 546 693 2 7 8 1 0 1 4 7 4 2 * * * 1 9 6 4 - 6 5 15 344 359 4 8 8 0 4 8 8 97 0 97 70 29 8 3 68 4 3 4 0 434 0 5 49 549 690 2 76 2 9 1 4 531 * * * * 1 9 6 5 - 6 6 17 359 3 76 4 4 3 0 4 4 3 1 00 0 1 00 72 2 69 341 4 3 1 0 431 0 5 6 6 5 6 6 6 7 8 3 7 5 8 0 1 4 3 6 3 *•***■* 1 9 6 6 - 6 7 18 346 364 4 0 5 0 4 0 5 Cl osed wi -Conso th Bro l i d a t e vm d 80 28 6 3 66 3 8 8 0 3 88 0 53 8 5 38 672 6 7221 1 3 9 4 7 1 9 6 7 - 6 8 19 3 06 325 4 0 4 0 4 0 4 - - - 102 24 6 3 48 347 0 347 0 4 9 7 4 97 6 6 6 8 6 7 2 9 1 3 3 9 7 1 9 6 8 - 6 9 54 3 16 3 70 352 0 352 ___ ___ . . . 137 192 329 3 49 0 3 49 2 4 9 0 4 92 6 5 9 3 66 1 2 1 3 205 1 9 6 9 - 7 0 47 294 341 3 23 0 32 3 ___ ___ . . . 1 32 20 2 334 3 28 0 3 28 18 5 05 5 23 6 6 5 8 68 2 3 1 3 481 1 9 7 0 - 7 1 54 3 22 376 297 1 29 8 ___ — ___ 134 175 3 09 311 0 311 22 4 51 4 73 644 6 6 4 0 4 1 2 8 5 0 1 9 7 1 - 7 2 62 245 307 285 0 285 ___ ___ ___ 58 ( 1 - 3 ) 25 0 3 08 304 0 304 195 ( 1 - 3 ) 22 0 4 15 6 1 9 6 50 9 8 1 1 2 9 4 1 9 7 2 - 7 3 63 245 3 08 241 1 2 4 2 __ ___ _ . . . 61 ( 1 - 3 ) 20 9 2 70 245 0 2 45 227 ( 1 - 3 ) 173 4 0 0 Ann ;xed f bounty rom 604 3 4 7 2 5 1 0 7 6 8 1 9 7 3 - 7 4 67 2 21 2 88 224 3 227 ___ ___ . . . 53 172 225 23 0 0 23C 2 4 8 144 3 92 56 374 4 3 0 6 017 4 6 5 4 1 0 671 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 9 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 8 0 Desegregation Schedule: *16 Schools (1-3) **A11 Schools (1-4) ***A11 Schools (1-6) ****A11 Schools (1-7) *****All- Schools (Lrl2) Report #5-B Junior High Schools J u n i o r High S c h o o l s 1 0 t h Day E n r o l l m e n t ( R e s i d e n t : and N o n re s id e n t : P u p i l s ) A l t o n P a r k ( 7 - 9 ) B r a l n c r a ( 7 - 9 ) Dalewood ( 7 - 9 ) F a s t F i f t h ( - > E a s t Lake ( 7 - 9 ) E a s t S id e _______ ( 1 - 9 ) _________ Hardy ( 7 - 9 ) Howard ( 7 - 9 ) Y e a r B W T B W T B W T B W T B w T B W . 'T B W T B W T * 1 9 6 2 - 6 3 8 18 0 816 0 1 1 0 0 1 1 0 0 0 F a l l >ened >3-64 New) 329 0 32( C 637 637 0 6 10 61C 0 611 611 887 0 887 * * 1 9 6 3 - 6 4 8 37 0 837 0 5 9 0 5 90 0 4 67 4 67 C l os e d t o -T ra n s R i ve rs f e r r e t id e 0 6 05 60 ! 0 55 9 559 0 546 546 8 79 0 8 79 * * * 1 9 6 4 - 6 5 905 0 905 0 6 00 6 00 0 49 1 491 ___ _ ___ 0 5 89 589 0 58 7 587 0 4 7 3 4 7 3 853 0 8 53 ****• 1 9 6 5 - 6 6 9 1 3 0 91 3 7 607 6 14 9 5 2 2 531 . . . ___ 0 5 8 0 5 80 27 6 27 654 99 4 4 0 539 7 40 1 7 41 Hr hfrfcit 1 9 6 6 - 6 7 893 0 8 93 33 649 6 82 28 5 79 607 . . . . . . . . . 0 621 621 91 6 18 709 217 356 5 73 6 52 0 6 52 1 9 6 7 - 6 8 8 88 0 88S 53 661 714 37 6 13 6 5 0 3 39 ( 7 - 8 ) 6 345 . 1 6 02 603 112 6 46 7 58 3 31 292 6 23 6 19 0 6 19 1 9 6 8 - 6 9 8 89 4 8 93 58 621 679 55 5 9 0 6 45 296 8 304 1 5 95 5 96 119 6 2 9 7 48 30 4 305 6 0 9 612 1 6 13 1 9 6 9 - 7 0 84 3 7 8 50 61 565 626 72 5 4 2 614 2 9 0 1 291 0 5 65 5 65 1 18 6 06 724 38 4 26 8 652 642 0 6 4 2 1 9 7 0 - 7 1 835 7 842 67 521 5 8 8 105 4 7 0 5 75 2 4 3 2 245 1 531 5 3 2 1 30 5 9 3 7 23 4 2 6 1 9 0 6 1 6 62 2 0 6 2 2 1 9 7 1 - 7 2 781 3 784 115 370 48 5 2 00 326 526 3 35 ( 7 - 9 ) 1 336 1 4 4 7 4 4 8 1 48 4 7 6 624 5 5 0 16 6 7 16 5 52 0 5 52 1 9 7 2 - 7 3 741 2 743 145 3 06 451 245 219 4 64 309 ( 7 - 9 ) 1 3 1 0 3 4 3 8 4 41 1 13 389 5 02 5 0 8 139 647 513 0 5 13 1 9 7 3 - 7 4 6 55 2 657 157 2 50 4 0 7 3 48 197 545 2 79 1 2 80 1 3 8 0 381 1 26 3 65 4 91 5 05 96 601 4 7 3 1 4 7 4 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 9 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 8 0 bOpi P Desegregation Schedule: *16 Schools (1-3) **A11 Schools (1-4) Schools (1.-6) ****A11 Schools (1-7) *****Ail Schools (L-12) Junior High Schools (Continued) 10 th Day E n r o l l m e n t ( R e s i d e n t and N o n r e s i d e n t P u p i l s ) Kirlauau (91 Long ( 7 - 9 ) Lo oko ut 1 ( 7 - 9 ) t o r t h C h a t t a n o o g a ( 7 - 9 ) O rc h a r d Knob ... ( 7 - g ) _________ P a r k P l a c e ( 7 - 9 ) R i v e r s i d ( 7 - 9 ) l ' o ta l ( J u n i o r 7 - 9 ) High Y ea r B w T B W T B W T B W T B W T B W T R W T B W T * 1 9 6 2 - 6 3 0 177 177 0 134 134 0 1 86 181 0 530 536 762 0 76 ; 247 0 247 . . . — . . . 3043 398 5 7 0 2 8 * * 1 9 6 3 - 6 4 0 165 165 0 1 18 118 0 165 165 0 5 39 589 752 0 752 R Closed L v e r s l de 8 5 0 0 850 3318 38 0 4 7 12 2 4.*+. 1 9 6 4 - 6 5 0 1 53 1 53 0 125 125 0 148 148 0 6 03 603 797 0 797 - - - — - - - 8 94 0 894 344 9 3 7 6 9 7 2 1 8 ★ * * * 1 9 6 5 - 6 6 Closed __ _ 4 135 139 37 149 186 12 6 25 6 37 798 0 798 — - - - 7 85 0 785 343 1 36 8 6 7 11 7 * * * * * 1 9 6 6 - 6 7 . . . - - - 7 134 141 54 1 56 210 36 5 81 617 745 0 745 - - - - - - 5 9 8 2 6 00 335 4 36 9 6 7 0 5 0 1 9 6 7 - 6 8 . . . . . . _ 10 141 151 71 165 2 36 54 6 05 659 6 96 0 691 — 181 ( 9 ) 0 181 3 3 9 2 37 3 1 7 1 2 3 1 9 6 8 - 6 9 . . . _ 33 185 21 8 77 161 238 61 674 735 6 75 0 675 - - - 1 84 0 184 336 4 37 7 3 7 1 3 7 1 9 6 9 - 7 0 35 175 210 70 147 217 63 744 807 6 23 0 623 _ _ 165 0 165 3 366 3 62 0 69 8 6 1 9 7 0 - 7 1 28 165 193 89 1 48 237 62 7 23 785 6 53 0 652 ___ _ _ 138 0 138 3399 3 3 5 0 6 7 4 9 1 9 7 1 - 7 2 21 151 172 84 115 1 99 57 651 708 4 9 3 0 4 9 3 ...... _ Tran E a s t s f e r r , ; F i f t h i t o S t . 3337 2 70 6 6 0 4 3 1 9 7 2 - 7 3 28 149 177 83 1 23 2 0 6 63 5 89 65 2 4 57 0 4 57 _ _ _ _ _ 3 2 0 8 2 35 5 5 5 6 3 1 9 7 3 - 7 4 28 165 193 87 102 186 78 567 645 38 5 0 385 _ ___ - - - - - - 3 1 2 2 21 26 5 2 4 8 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 9 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 8 0 Desegregation Schedule: *16 Schools (1-3) **All Schools (1-4) ***All Schools (1-6) ****A11 Schools (1-7) *****A11- Schools (Lr*12) Report #5-C Senior High Schools S e n i o r High S c h o o l s _____________ ___________________________________ lOt-li Day E n r o l l m e n t ( R e s i d e n t and N o n r e s i d e n t P u p i l s ) Sc h oo l Yea r B r a i n e r d High a o - i 2V C h a t t a n o o g a High ( 1 0 - 1 2 ) Howard High a o - 1 2 1 Kirkman T e c h n i c a l ( 1 0 - 1 2 ) R i v e r s i d e High ( 1 0 - 1 2 ) T o t a l S e n i o r High 1 0 - 1 2 ) B . W T B W T B W T B W T B W T B W T B W T B K 1 T * 1 9 6 2 - 6 3 0 8 96 896 0 1059 1059 1 5 8 0 0 1586 0 9 8 9 98< ___ ___ 158C 2 9 4 4 4 5 2 4 * * 1 9 6 3 - 6 4 0 10 01 1001 0 118 9 1189 103 3 0 1032 0 1 0 3 7 1037 944 0 94 ' 1977 32 2 7 5 2 0 4 * * * 1 9 6 4 - 6 5 0 10 7 0 1 0 7 0 0 1295 1295 1177 0 1177 0 105 1 1051 m i 0 1 1 1 ! 2 288 34 1 6 5 7 0 4 * * * * 1 9 6 5 - 6 6 0 11 03 11 03 0 1 253 1253 130 4 0 1304 0 1 0 8 0 108C 1 2 6 0 0 1 26C 2 5 6 ' 3 4 3 6 6 0 0 0 * * * * * 1 9 6 6 - 6 7 26 10 8 5 m i 35 1225 126 0 1 3 4 8 0 1346 1 1057 1056 1389 0 1 38 ' 2 799 33 67 6 1 6 6 1 9 6 7 - 6 8 54 10 8 9 11 4 3 57 1227 1284 1407 0 1407 1 0 6 9 107' , 1341 1 1342 2 862 33 8 6 6 2 4 8 1 9 6 8 - 6 9 88 11 31 12 19 66 126 4 133 0 1427 0 1427 29 1 0 7 9 1108 1267 0 1 267 2877 3 4 7 4 63 5 1 1 9 6 9 - 7 0 1 70 1224 1394 83 1359 1442 1415 0 1 4 1 ! 64 111 8 1182 1 124 0 1 1 2 ' 285 6 37 01 65 5 7 1 9 7 0 - 7 1 184 11 6 0 1344 141 1294 1435 131 3 0 1 3 1 3 129 1089 1218 1057 1 1058 2 8 2 4 35 4 4 6 3 6 3 1 9 7 1 - 7 2 4 6 3 9 33 13 9 6 369 733 1102 1 0 8 9 44 1133 27 4 81 8 1092 6 93 25 716 2 8 8 8 2 5 5 3 5 44 1 1 9 7 2 - 7 3 5 09 7 66 12 75 3 94 611 1005 9 41 7 948 3 66 761 1127 6 40 4 6 4 ' 2 8 5 0 21 4 9 4 9 9 9 1 9 7 3 - 7 4 5 28 6 39 11 67 3 69 502 871 887 5 892 4 2 4 6 6 0 1084 615 4 618 2 8 2 3 18 1 0 4 6 3 3 1 9 7 4 - 7 5 1 9 7 5 - 7 6 1 9 7 6 - 7 7 1 9 7 7 - 7 8 1 9 7 8 - 7 9 1 9 7 9 - 8 0 Desegregation Schedule; *16 Schools (1-3) **A11 Schools (1-6) ***A11 Schools (1-6) ****A11 Schools (1-7) *****A11 Schools (1-12)