Goss v. Knoxville, TN Board of Education Petitioners' Reply to Brief in Opposition to Certiorari

    ! .\ THE

(Enrnrt nt %  1mt?ft
October Term, 1973 

No. 73-661

J osephine Goss, et al.,

vs.
Petitioners,

T he B oard oe E ducation of the City 
of K noxville, T ennessee, et al.

PETITIONERS’ REPLY TO BRIEF
IN OPPOSITION TO CERTIORARI

Carl A. Cowan

2212 Vine Avenue 
Knoxville, Tennessee 37915

Avon N. W illiams, J r.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J ack Greenberg 
J ames M. Nabrit, III 
Norman J . Chachkin 
Sylvia Drew

10 Columbus Circle
New York, New York 10019

Attorneys for Petitioners



I n  th e

§>u+imni' GImtrt rtf tlj? States
October Term, 1973 

No. 73-661

J osephine Goss, et al.,

vs.
Petitioners,

T he B oard op E ducation of the City 
op K noxville, T ennessee, et al.

PETITIONERS’ REPLY TO BRIEF 
IN OPPOSITION TO CERTIORARI

The Brief of Respondents [in opposition to certiorari] 
fails to address the legal issues presented in the Petition, 
but rather seeks to portray this case as one involving only 
a factual question which was properly resolved below. 
That characterization is inaccurate and misleading.

This Court’s review is essential to eliminate the exist­
ing and potential conflicts among the Courts of Appeals 
created by the Sixth Circuit’s decision in this case, and 
to give meaning to the Fourteenth Amendment require­
ment that a unitary school system be established in Knox­
ville. More than fifteen years after the commencement of 
litigation to desegregate the Knoxville schools, and more 
than a decade after this Court’s rejection of the city’s 
racially based transfer plan, Goss v. Board of Educ., 373 
U.S. 683 (1963), 59% of all black children in this pre­
dominantly white system attend heavily black schools.



2

Finally, it is imperative that this Court review this 
matter to give badly needed guidance and direction to the 
Court of Appeals for the Sixth Circuit. The en banc 
rehearings in this case and in Mapp v. Board of Educ. of 
Chattanooga, 477 F.2d 851 (6th Cir.), cert, denied, 42 
U.S.L.W. 3290 (November 12, 1973), have failed to re­
solve any of the numerous conflicts among panels of the 
Circuit on the question of school desegregation. District 
courts within the Circuit have been left without counsel 
for guidelines, as is readily reflected in the status of school 
desegregation in the various Tennessee city school sys­
tems.

I
As we pointed out in the Petition (pp. 8-10), the dis­

trict court determined to deny the further relief sought 
by plaintiffs based upon its erroneous legal conclusions 
that (1) 99%-black schools are sufficiently integrated [340 
F. Supp., at 717; 13a]; (2) plaintiffs’ demand for further 
relief amounted to an attempt to achieve “racial balance” 
[340 F. Supp., at 727-28; 23a-24a]; and (3) Knoxville’s 
adoption of reasonable “neighborhood school” zones (in 
place of the dual overlapping attendance boundaries it 
maintained prior to 1964-65) satisfied the school board’s 
constitutional obligation to convert from a dual to a uni­
tary school system, whatever the resulting student enroll­
ment patterns [340 F. Supp., at 718, 729; 14a, 25a].

The Court of Appeals adopted or approved these legal 
declarations in its affirmance. Though not so explicit as 
the district court in indicating the acceptability of mini­
mally integrated facilities (see Petition, p. 9 n.16 and 
accompanying text), the Sixth Circuit found the contin­
ued maintenance of a “small number” of racially identifi­
able schools in Knoxville to be valid (3a)—in spite of the



3

fact that seven black schools remain and there never were 
more than nine black schools in the system at any time.

The Court of Appeals agreed (unlike the Fourth Cir­
cuit’s perceptive holding in the Danville case, see Petition 
at p. 9) that plaintiffs sought “to obtain a certain per­
centage of black students in each school in the system” (4a). 
And the court approved Knoxville’s compliance with the 
Fourteenth Amendment with the statement that the system 
“ha[d] taken [some] affirmative action to improve the 
racial mix of the schools” (3a).

Each of these issues is of critical significance in school 
desegregation cases; each has been resolved by other 
Courts of Appeals in a manner inconsistent with the hold­
ings of the Court of Appeals and district court herein, and 
each merits review by this Court. Cf. Rule 19(1)(b) of 
this Court. Yet the respondents totally decline to support 
the erroneous legal rulings of the courts below. Instead, 
they suggest that only factual questions can be presented 
to this Court, because the Court of Appeals summarily dis­
missed claims of inconsistency with its other rulings with 
the statement that “the proof . . . failed to establish [the 
basis for the results reached in the other cases].”

The Court of Appeals did say:
. . . the appellee presented evidence . . . from which 
the [district] court was justified in finding that no plan 
involving the transportation of pupils . . . would be 
feasible. . . . (3a-4a)

But as we pointed out in the Petition (p. 13), the district 
court never made such a determination. Although it dis­
cussed some of the geographic and demographic features 
of Knoxville in summarizing the evidence, it made no 
factual findings on the subject since the court held the



4

system was already “unitary” and that further desegrega­
tion attempts were efforts to achieve “racial balance.” Thus 
it is legal doctrine and not fact finding which is placed in 
issue before this Court.

II
Respondents minimize the fact that even after this case 

received district court reconsideration in light of Swann, 
59% of all black students in this more-than-80%-white 
school system were assigned to identifiably black schools 
(Petition, at p. 7). This is unexpected in view of their 
admissions that zone lines have not been substantially 
altered since they first became effective at all grade levels 
in 1964 (Brief, pp. 11-12) and that at the time they received 
judicial sanction, this Court had not yet announced the 
result-oriented standards of Swann and Davis v. Board of 
School Comm’rs, 402 U.S. 33 (1971) (Brief, p. 8). As we 
said in the Petition (at p. 12), it is hardly surprising, given 
the racial residential segregation existing when this suit 
was brought and continuing to this day (340 P. Supp., at 
716; 12a), that “neighborhood school” zones have resulted 
in school segregation. See Swann, 402 U.S. at 28.

The 1971-72 enrollment figures, enumeration of which 
respondents label a “static presentation,” (Brief, p. 4) 
were not represented as current (see Petition at p. 7). They 
were listed, however, to emphasize the gravity of the dis­
trict court’s error in characterizing the school system as 
“unitary.” The Court of Appeals compounded the error 
by lifting out of context Swann’s reference to a “small 
number” of racially identifiable schools, and applying it 
to Knoxville, which has never had a “large number” of 
black schools. The meaning of the phrase varies with the 
history and circumstances of each school district: even one



5

such school would have been unacceptable in New Kent 
County, Virginia.

It is undoubtedly true that in 1971, Knoxville at long 
last took “[some] affirmative action to improve the racial 
mix” in its schools. It finally paired schools whose com­
bination had been recommended years ago by the Univer­
sity of Tennessee Title IV Center. See also, U.S. Comm’n 
on Civil Rights, Racial Isolation in the Public Schools 65 
(1967). But the continued assignment of three-fifths of 
Knoxville’s black students to heavily black schools is elo­
quent evidence of Knoxville’s failure to take “all necessary 
steps” to eliminate racially identifiable schools, in satisfac­
tion of its constitutional obligation.1

Ill
Certainly there is a place for proper fact-finding in this 

litigation. Petitioners have on the several appeals of this 
case presented to the Sixth Circuit flagrantly erroneous 
findings of the trial judge. We have never succeeded in 
having these reviewed, either because the Court of Appeals 
has simply remanded the case for reconsideration (as in 
1964 and 1971) or because the questions are ignored (as in 
1973). For example, the district court stated that transfer 
forms for Austin-East High School (see Appendix A) 
introduced into evidence could not support the testimony 
of plaintiffs’ educational expert witness that the school 
system’s transfer practices had perpetuated segregation 
(340 F. Supp., at 725-26; 21a-22a). Not only had the dis­
trict court itself previously suggested as much (340 F. 
Supp., at 719; 15a) but Petitioners reproduced all of the 
transfer forms in the Appendix in the Court of Appeals, 
pointing out the abundant indications that white students

1 Appendix A hereto provides a very brief summary of Knox­
ville’s school desegregation history.



6

were permitted to transfer out of the paired high schools 
for racial reasons.2 * * * * * 8

In similar fashion, the district court criticized plaintiffs’ 
educational expert for not using- the board’s pupil locator 
data in drafting his plan (340 F. Supp., at 721; 17a) even 
though the court itself found the data was inaccurate (340

2 We summarized the transfer forms in our Court of Appeals 
brief as follows:

The forms are all from white students (see master listing at
A. 1567-70). There are transfer requests from 51 students— 
some having repeatedly sought transfers—in the Austin-East 
zone. Not all of the students listed as having transferred at 
A. 1567-70 are represented in the transfer requests; their
forms may have been lost.
Of the 51 students, 20 of their latest requests were approved 
and 29 were denied; the other two students had submitted
forms unnecessarily after changing their addresses and mov­
ing into another zone. Only six of the twenty-nine white 
students whose requests to transfer out of Austin-East were 
denied remained at the school: LaVerne Cox, Mary Green, 
Miriam Kenimer, Larry Patty, Alan Rogers, Eursal Payne.
8 whites whose transfer forms are marked “disapproved” are 
shown on the master listing as having obtained transfers and 
subsequently been graduated from Fulton, Holston or Rule. 
Among these, incredibly enough, is one Brenda Keeling (A. 
1597-98) ; in the winter of 1967 Miss Keeling’s request to 
transfer from East to Rule

Because of the colored. They are a colored boy that is 
causing trouble in a way which I don’t  improve of; 
causing talk [A. 1598]

was denied. In the spring of 1968 another request to trans­
fer, this time from East to Fulton because of the “racial situ­
ation” (A. 1597) was disapproved. Yet the school system 
reports (A. 1567) that Miss Keeling was a Holston graduate! 
Another example is Miss Becky Suffridge (A. 1634), who 
sought a transfer because she was “socially deprived.” Al­
though it was denied, she is listed (A. 1567) as a Fulton 
graduate.
Some of the approvals are equally interesting. Two were 
granted because of racial complaints (Larry and Vicki Pick­
ens, A. 1617-20). Five other transfer requests were granted 
despite previous disapprovals of the same or similar trans­
fer pleas. For example, Eddie Parton first sought transfer



7

F. Supp., at 713; 9a) and the school board’s expert also 
declined to use it for this reason (A. 413-14). These and 
other serious factual errors made by the district court were 
brought to the attention of the Court of Appeals but were 
never addressed by that Court.

To the extent that factual matters are made relevant in 
this case by the correction of the legal mistakes committed 
below, the Court of Appeals should have set aside numerous 
district court findings as being “clearly erroneous.”

IV
The failure of the Court of Appeals to deal with the 

legal and factual issues presented by the district court’s 
ruling in this ease corresponds to that Court’s refusal to 
fashion a consistent body of school desegregation law in 
accord with this Court’s decisions and applicable through­
out the Circuit.

We pointed out in the Petition (p. 12) that the decision 
below conflicts with other Sixth Circuit rulings approving 
or ordering extensive desegregation of school systems using 
pupil transportation. In this respect, it is similar to previ-

in early 1968 on the ground that it was inconvenient for 
him to attend Bast (A. 1612) ; his request was denied. In 
late spring, 1968, he again sought to change schools because 
of “emotional difficulty in adjusting to a specific situation” 
(A.' 1611) (a phrase which appears with annoying regularity 
on many transfer forms). That was denied, and in August, 
1968 he filed another request to transfer to Fulton because 
he “wants to learn a trade” (A. 1610). This request was also 
denied, but a school official wrote on the form, the words 
“What Trade?” Finally, on September 4, 1968 Parton got 
the message, requested transfer so as to take “machine shop,” 
which was not offered at Austin, and was granted his trans­
fer (A. 1609). James Dockery was denied a vocational trans­
fer in the summer of 1967, appealed to the school board and 
lost (A. 1588) ; yet the following winter he was granted a 
vocational transfer (A. 1587).



8

ous panel opinions which affirmed district court orders 
allowing the continuation of segregated schools on the basis 
of “district court discretion.” E.g., Robinson v. Shelby 
County Bd. of Educ., 467 F.2d 1187 (6th Cir. 1972). For 
years, such unresolved conflicts among panels of the Cir­
cuit concerning the necessity for substantial integration, 
what constituted “racial balance,” etc., left district courts 
and litigants alike without any guidance except the latest 
utterance of a panel.3

We had hoped that these conflicts, which produced mark­
edly different levels of desegregation in the public schools 
of Tennessee’s major cities (see Petition, p. 12 n.19), would 
be resolved by the full Court in the first en banc considera­
tions of school desegregation cases it had ever scheduled, 
in the Mapp and Goss cases. However, in each instance, 
the Court of Appeals merely affirmed the district court 
without analyzing the legal issues presented, dismissing 
any conflict with the “brief answer” that the proof was 
different in each case (4a). Mapp v. Board of Educ., 477 
F.2d 851 (6th Cir.), cert, denied, 42 U.S.L.W. 3290 (1973); 
Goss v. Board of Educ., 482 F.2d 1044 (6th Cir. 1973). The 
uncertainty about the legal requirements continues through­
out the Circuit.* 4 We respectfully suggest that the Sixth 
Circuit’s refusal to establish Circuit-wide standards to end 
the confusion created by its own decisions in this important

8 Thus, for example, the Chattanooga School Board claimed 
that after an initial ruling in its case based upon Kelley v. Met­
ropolitan County Bd. of Educ., 436 F.2d 856 (6th Cir. 1970) and 
Robinson v. Shelby County Bd. of Educ., 442 F.2d 255 (6th Cir. 
1971), “ [t]he District Court appeared to shift emphasis on the 
basis of Goss v. Board of Education of the City of Knoxville 
[1971] . . . ” Brief for Defendant-Appellee and Cross-Appellant, 
6th Cir. No. 71-2006, -2007, p. 15.

4 Indeed, the City of Chattanooga sought to support its request 
for review by this Court by pointing to the later en banc decision 
in Goss. Petition in No. 73-188, p. 12.



9

area of public law warrants the exercise of this court’s 
supervisory revieŵ  power. See Rule 19(1) (b) of this Court.

Symbolic of the conflict is the Court’s en banc ruling in 
Bradley v. Milliken, 484 F.2d 215 (6th Cir.), cert, granted, 
42 U.S.L.W. 3306 (1973). It is remarkable that the same 
Court which contemplated the exchange of pupils, pre­
sumably by bus, between Detroit and its' suburbs, to effec­
tuate desegregation, also affirmed the continuation of 
segregation in the much smaller Knoxville system. But 
this Court’s decision in the Bradley case on the remedial 
issue there presented—whether the Court has the power 
to go beyond the district boundary line—will not settle the 
issues presented by this case, nor furnish the necessary 
guidance to other Sixth Circuit litigants in school desegre­
gation actions. Wholly irrespective of the Court’s deter­
mination in Bradley, this cause should be reviewed in 
order to enforce the commands of Swann and the Four­
teenth Amendment in Knoxville and throughout the Sixth 
Circuit.



10

CONCLUSION

For the foregoing reasons, as well as those set out in the 
Petition for Writ of Certiorari, Petitioners respectfully 
pray that the Writ he granted.

Respectfully submitted,

Carl A. Cowan 
2212 Vine Avenue 
Knoxville, Tennessee 37915

Avon N. W illiams, J r.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J ack Greenberg
J ames M. Nabrit, III
N orman J. Chachkin
Sylvia Drew 

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



APPENDIX



la

APPENDIX A

History of School Desegregation in Knoxville

1957 First federal court desegregation action filed
1959 Case dismissed without prejudice on procedural 

grounds
1960 Present litigation instituted. Board submits grade- 

a-year plan with minority-to-majority transfer; ap­
proved by district court

1962 Initial assignments of students in several elementary 
grades based on single zone lines; dual zones are 
maintained for other grades. Court of Appeals ap­
proves minority-to-majority transfer

1963 Supreme Court disapproves transfer feature
1964 Plan covers elementary grades. Explicit minority- 

to-majority transfer discontinued but plan permits 
“grade requirement” (remain in school previously 
attended until graduation) and “brother-sister” (go 
to schools attended by other family members) trans­
fers. Plaintiffs’ appeal dismissed on representation 
of board attorney that “all discriminatory practices” 
would be eliminated by 1965

1965 Zones established for all grades. Broad transfer 
provisions continue in effect

1967 District court holds transfer provisions facially valid 
and finds no gerrymandering of zone lines. 68% of 
all black students assigned to 9 schools more than 
95% black

1968 Board “pairs” formerly black Austin High and for­
merly white East High but permits transfers to



2a

I1 niton for vocational courses, etc. Few white stu­
dents attend combined Austin-East High School

1969 Court of Appeals affirms district court, holding that 
attendance patterns without showing of gerryman­
dering do not establish constitutional violation in 
formerly dual school system, as in historically uni­
tary system, citing Deal v. Cincinnati Bd. of Educ., 
369 F.2d 55 (6th Cir. 1966), cert, denied, 389 TT.S. 
847 (1967)

1970 In response to plaintiffs’ Alexander [v. Holmes 
County Bd. of Educ., 396 U.S. 19 (1969)] motion, 
district court holds system “unitary,” but criticizes 
board for failing to keep transfer records sufficient 
to explain non-attendance of white students at Aus­
tin-East complex (320 F. Supp., at 557) and to elim­
inate overcrowding and underutilization of adjacent 
predominantly white Rule High and predominantly 
black Beardsley Jr. High (320 F. Supp., at 556)

1971 Court of Appeals remands for reconsideration in 
light of Swann, recognizing that new standards re­
quire reassessment of past holdings and that Swann 
“forbids the use of our decisions in Deal . . .  to jus­
tify a plan of desegregation in a state which em­
ployed de jure segregation until the Brown decision” 
(444 F.2d, at 639)

1972 After new round of hearings, district court again 
holds system was unitary despite maintenance of 
seven all-black schools since neighborhood school 
zones are reasonably drawn. Court allows board to 
implement school closings and pairings it proposed 
after Swann remand from Court of Appeals

1973 Court of Appeals affirms district court ruling. 59% 
of black students assigned to heavily black schools



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