Metropolitan County Board of Education v. Tennessee Reply Brief and Supplemental Appendix

    No. 87-1774

In The

JiatpremE Court of ttjr United States
October Term, 1987

M etropolitan County Board Of Education Of 
Nashville A nd Davidson County, Tennessee, et al.,

Petitioners,

vs.

State Of Tennessee, et al., 
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals For the Sixth Circuit

REPLY BRIEF AND 
SUPPLEMENTAL APPENDIX

W illiam R. W illis, Jr. 
M arian F. H arrison 
W illis & Knight 
215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600
Attorneys for Petitioners

St. Louis Law Printing Co., Inc., 13305 Manchester Road 63131 314-231-4477



TABLE OF AUTHORITIES CITED

Page

Bradley v. Milliken, 402 F.Supp. 1096 (E.D. Mich.
1975)......................................... .............................  3

Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976), aff’d 
433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 
(1977)........................................................................ 3,6,7

Columbus Board of Education v. Penick, 443 U.S. 449,
99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) ..................... 6

Dayton Board of Education v. Brinkman, 443 U.S. 526,
99 S.Ct. 2971, 61 L.Ed.2d 720 (1979).....................  6

Jenkins v. State of Missouri, 672 F.Supp. 400, (W.D.
Mo. 1987) .......................................................  2,5

Kelley v. Metropolitan County Board of Education,
687 F.2d 814 (6th Cir. 1982)..................................  4

Kelley v. Metropolitan County Board of Education,
615 F.Supp. 1139 (M.D. Tenn. 1985).....................  4

Kelley v. Metropolitan County Board of Education,
836 F.2d 986 (6th Cir. 1987).....................................  4

Liddell v. Board of Education of the City of St. Louis,
667 F.2d 643 (8th Cir. 1981), cert, denied, 454 U.S.
1081, 102 S.Ct. 634, 70 L.Ed.2d 614 (1982) . . . . . . .  2

Liddell v. Board of Education of the City of St. Louis,
731 F.2d 1294 (8th Cir. 1984) (en banc), cert, 
denied, 469 U.S. 816 (1984)..................................... 5,7

Liddell v. Board of Education of the City of St. Louis,
839 F.2d 400 (8th Cir. 1988)...................................  2

Little Rock School District v. Pulaski County Special
School District, 839 F.2d 1296 (8th Cir. 1988)........ 2



ii

Little Rock School District v. Pulaski County Special 
School District, 778 F.2d 404 (8th Cir. 1985), cert, 
denied, 106 S.Ct. 292 (1986) ............. ........... . 5

Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53
L.Ed.2d 745 (1977).......................................... 1,6

Papason v. Allain, 478 U.S. ____, 106 S.Ct. 2932, 92
L.Ed.2d 209 (1986).................................................  2

United States v. Board of School Commissioners of the 
City of Indianapolis, 677 F.2d 1185 (7th Cir.), cert, 
denied, 459 U.S. 1086 (1982).................................. 2,4,7

United States v. Texas Education Agency, 790 F.2d
1262, cert, denied, 107 S.Ct. 874 (1986).................  5



No. 87-1774
In The

Supreme (Enurt of tlje United States
October Term, 1987

M etropolitan County Board Of Education Of 
Nashville A nd Davidson County, Tennessee, et al.,

Petitioners,

vs.

State Of Tennessee, et al., 
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals For the Sixth Circuit

REPLY BRIEF

The issues herein concern the proper interpretation of this 
Court’s decision in Milliken v. Bradley, 433 U.S. 267 (1977) 
{Milliken II), and more broadly, the ability of district courts 
across the country to provide complete remedial relief and to in­
sure quality education to victims of state-imposed segregation. 
The Sixth Circuit improperly interpreted Milliken II, contrary 
to decisions from the Seventh and Eighth Circuits, which hold 
that the Eleventh Amendment poses no bar to orders requiring 
state financial participation in local desegregation plans, and 
that such orders are an appropriate and necessary exercise of a 
federal court’s equity jurisdiction. Although full argument on



— 2 —

the merits of these questions is properly reserved for briefing on 
the merits, the Petitioners take this opportunity to reply to the 
Respondents’ Brief in Opposition:

1. The Respondents strain in their attempt to distinguish 
Milliken II  and the myriad of cases from the Courts of Appeal 
for the Seventh and Eighth Circuits which have rejected 
Eleventh Amendment defenses and required state defendants to 
fund significant portions of local desegregation plans. The 
Respondents argue pursuant to Papason v. Allain, 106 S.Ct. 
2932, 2941 (1986), that a court most “ look to the substance 
rather than the form of the relief sought.’’ Contrary to their 
assertion, the substance of the remedy sought and ordered in 
this case is consistent with that sought and ordered in Milliken II  
and other cases.1 * * * As stated in the Board’s Petition for Cer­
tiorari, Michigan, Missouri, Arkansas and Indiana were in ac­
tuality nothing more than recalcitrant finanial participators. In­
sofar as the Petitioners are aware, in none of these cases did the 
state defendants actually develop or implement a local 
desegregation remedy. Instead, as in Milliken II, the remedy 
was proposed and/or implemented by the local school district, 
and the state defendants merely paid a portion of the costs

1 E.g. Liddell v. Board o f Education of the City of St. Louis, 667 
F.2d 643 (8th Cir.), cert, denied, 454 U.S. 1081 (1982); Liddell v.
Board o f Education, 839 F.2d 400 (8th Cir. 1988); Little Rock School 
District v. Pulaski County Special School District, 839 F.2d 1296 (8th
Cir. 1988); Jenkins v. Missouri, 672 F.Supp. 400 (W.D. Mo. 1987);
United States v. Board o f School Commissioners of Indianapolis, 677 
F.2d 1185 (7th Cir.), cert, denied, 459 U.S. 1086 (1982).



— 3 —

through the legal actions of the local school districts 
themselves.2

The reasons for this typical course of events are apparent 
when the activities of the Tennessee Respondents in Nashville 
are examined. In its opinion of March 9, 1983, the District 
Court stated that “ the state defendants have had an opportuni­
ty to participate in the formulation of the desegregation plan 
[for Nashville] for the 1983-84 school year, a plan which has not 
been adopted by this court.” 3 The record in this case shows that 
the Respondents declined to participate in devising the remedy 
ultimately ordered by the court, even though their input was 
sought at every step.4 The District Court’s order approving the 
desegregation plan for Nashville and ordering its implementa­
tion is not directed specifically to either the local Board or the 
Respondents, and it specifically notes that the Respondents of­
fered no objections to implementation.5 It is little wonder that 
the District Court later looked to the state for financial participa­
tion rather than to specifically amend its implementation order 
to require the Respondents to educate or bus students. Had it 
ordered the Respondents to educate and/or bus students, which 
even the Respondents appear to concede would be permissible

2 It was the local Detroit school district, not the plaintiffs in 
Milliken or the state defendants who developed the educational com­
ponents for which the state defendants were required to pay. It was 
also the local school district who sought contribution from the state 
defendants to fund those components. See Bradley v. Milliken, 540 
F.2d 229, 242 (6th Cir. 1976) (Detroit Board, not plaintiffs, appealed 
from allocation of costs of the district court); Bradley v. Milliken, 402 
F.Supp. 1096, 1103 (E.D. Mich. 1975) (Detroit Board of Education 
submitted desegregation plan, including educational components).

3 Respondents’ Appendix, p. 30.

4 Supplemental Appendix B, p. A-6,

5 Supplemental Appendix A, p. A-l.



— 4 —

under the Eleventh Amendment, then most certainly the result 
would have been no different than that in Millikien II. That is, 
the Nashville Board would be implementing the desegregation 
remedy it designed with some state funds.

Simply put, in all of these cases, as in the instant case, the 
money the state is required to pay is directly tied to a desegrega­
tion plan designed to directly benefit those victims of 
discrimination who suffer currently from previous state- 
imposed or maintained segregation. The Sixth Circuit and the 
District Court previously found that such current vestiges of 
state-imposed segregation remain. 687 F.2d 814 (6th Cir. 1982) 
(A. 59-62); 615 F.Supp. 1139 (M.D. Tenn. 1985) (A. 31). Even 
under the Respondents’ theory, all the District Court needs to 
do is simply amend its order requiring implementation to 
specify that the Respondents provide educational programs and 
busing designed to eliminate those vestiges rather than to merely 
require that the plan be implemented. Surely this is form over 
substance.

2. The Sixth Circuit noted the conflict between its opinions 
and those from the Seventh and Eighth Circuits regarding the 
Eleventh Amendment without distinguishing those cases,6 and 
relied upon a dissenting opinion from the Seventh Circuit for 
the proposition that an award of desegregation costs against a 
state is not an appropriate exercise of federal equity jurisdic­
tion.7 These references, without more, demonstrate that the

6 The Sixth Circuit cites the Seventh and Eighth Circuit opinions 
and indicates that the circuits are divided. 836 F.2d at 995, n. 4 (A. 
17).

7 United States v. School Commissioners o f City o f Indianapolis, 
677 F.2d 1185, 1190-91 (7th Cir.) (Posner, J. dissenting), cert, denied, 
459 U.S. 1086 (1982).



— 5 —

Sixth Circuit itself was clearly aware that its opinion was presen­
ting a conflict in the circuits, yet the Respondents argue that 
there is no conflict between this case and those in other circuits 
because the issues are somehow different.

The Respondents’ attempt to distinguish this case from others 
because the school system, rather than the victims of discrimina­
tion, is seeking relief, is also strained and should be rejected. 
First, in many of these cases, efforts seeking state funding were 
led by the local school districts or local authorities when the 
costs of desegregation became apparent.8 * * Most importantly, ac­
ceptance of such a distinction would set a dangerous precedent, 
by requiring victims of discrimination to continually police 
these cases because a local school system is precluded from 
assuring these victims that they will be provided a desegregated 
quality educational experience.

Finally, the Respondents’ reliance on United States v. Texas 
Education Agency, 790 F.2d 1262, cert, denied, 107 S.Ct. 874 
(1986), is misplaced. In that case, there was never any finding 
of state liability nor any effort made to divide the cost of the 
desegregation remedy. In this case, both the District Court and 
the Court of Appeals have held, while the state defendants have 
been parties, that vestiges of state-imposed segregation remain, 
and the District Court has made a finding of liability. The 
remedy fashioned by the District Court in 1983, while the 
Respondents sat mute, was founded on the proposition that 
black achievement was lagging behind white achievement, and 
that racial imbalance in certain schools had persisted, all 
resulting from the inherent problems encountered over the years

8 See n. 2, supra. See also Little Rock Special School District v. 
Pulaski County Special School District, 778 F.2d 404, 408 (8th Cir.
1985); Jenkins v. State o f Missouri, 672 F.Supp. 400, 402, 405, 409
(W.D. Mo. 1987); Liddell v. State o f Missouri, 731 F.2d 1294, 1298 
(8th Cir. 1983).



6

by the parties and the District Court in eliminating the results of 
historical segregation.9 With this history, the District Court ap­
propriately applied the concept of continuing constitutional 
violation set forth repeatedly by this Court,10 a violation the 
Respondents have an unmet affirmative duty to correct.

3. In the Respondents’ argument that the District Court ex­
ceeded its equity jurisdiction by requiring the state of Tennessee 
to pay 60 percent of the current costs of Metro’s desegregation 
plan, they refer to none of the many cases, including Milliken 
II, which approve such remedies. As indicated in the Petition 
for Certiorari, Courts of Appeal, including the Sixth Circuit, 
have required other states to pay significant portions of local 
desegregation costs, to wit: Missouri, Arkansas, Michigan, 
Ohio, and Indiana, holding that such remedies are a permissible 
exercise of federal equity jurisdiction.11 *

9 The District Court stated in 1981 that “the good faith efforts of 
this [school] Board to achieve desegregation have been amply 
demonstrated. . . .” (A. 121.) It was the racial imbalance resulting 
from the court’s efforts in 1971 to devise a comprehensive desegrega­
tion plan that led to the new 1983 transportation remedy because the 
court’s plan encouraged population shifts to parts of the county not 
previously included in the plan. Referring to its own 1971 efforts to 
remedy desegregation, the District Court stated that “ [t]he perimeter 
line drawn by the court in 1971 . . . has encouraged white flight to the 
suburbs and to those school zones unaffected by the 1971 order. . . . 
The resegregation, resulting, at least in part, from the nonetheless 
good faith efforts of the School Board in the implementation of the 
court’s order, amounts to a de jure segregation.” (A. 189-91.)

10 Milliken v. Bradley, 433 U.S. 267 (1977); Columbus Board of 
Education v. Penick, 443 U.S. 449 (1979); Dayton Board o f Educa­
tion v. Brinkman, 443 U.S. 526 (1979).

11 See cases refereed to in Petition for Certiorari, pp. 21-22. For ex­
ample, in the seminal Milliken case, Michigan was required to pay 75 
percent of the cost of purchasing 150 school buses and 50 percent of 
educational components. Bradley v. Milliken, 540 F.2d 229, 240, 246
(6th Cir. 1976), aff’d 433 U.S. 267 (1977).



7

The Respondents argue that there is no basis for the 60 per­
cent figure set by the District Court, yet the basis is actually 
clearer than in many other cases. In virtually all of the cases re­
quiring state financial support, there is no real discussion of the 
percentage awarded nor is there any readily apparent bench­
mark for the award.12 Here, the District Court apparently 
calculated the percentage based upon the increased expenditures 
for programs which the Court of Appeals had mandated to 
remove the remaining vestiges of state-imposed segregation.13 
As indicated previously in the Petition for Certiorari, the 
District Court had sought to pay for remedial programs through 
decreasing the transportation expense, a decrease the Court of 
Appeals would not approve. When faced with the task of re­
quiring implementation of both extended busing and extensive 
educational components in light of the school board’s budget, 
the District Court appropriately placed the onus for the increase 
on the state defendants.

Thus, the remedy ordered by the District Court is not, as the 
Respondents argue, merely the settlement of an internal con­
troversy between political subdivisions. Rather, it is based upon 
the District Court’s reasoned efforts to insure that the Nashville 
school system can provide quality education for the victims for 
whom this litigation was orginally brought. This case is no dif­
ferent from those many cases in other circuits and in the Sixth 
Circuit itself which have approved remedies designed to achieve 
this result.

12 Little is contained in any of these opinions regarding the amount 
of relief, other than general pronouncements regarding a state’s 
relative culpability along with the financial realities in the relevant 
school district. See United States v. Board o f School Commissioners 
o f the City o f Indianpolis, 677 F.2d 1185 (7th Cir. 1982) (100 percent 
of costs awarded); Liddell v. State of Missouri, 731 F.2d 1294, 1333, 
(8th Cir. 1984) (approximately 80 percent of costs awarded); Bradley 
v. Milliken, 540 F.2d 229, 246 (6th Cir. 1976) (50 percent of costs 
awarded). See also Petition for Certiorari, pp. 21-22.

13 See Petition for Certiorari, pp. 10-11, n. 4.



8

CONCLUSION

For the reasons previously stated in their Petition for Cer­
tiorari, the Petitioners respectfully submit that this case raises 
issues and interpretations of this Court’s previous rulings about 
which the circuits are not in agreement. These important issues 
are continuing to arise across the nation, and direction from this 
Court is necessary to insure uniformity and guard against con­
fusion.

Respectfully submitted,

WILLIS & KNIGHT 
215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600

By: WILLIAM R. WILLIS, JR.

By: MARIAN F. HARRISON

Attorneys for Petitioners, 
Metropolitan County Board of 
Education of Nashville and 
Davidson County, et al.



9

CERTIFICATE OF SERVICE

I hereby certifiy that a copy of the foregoing response has 
been mailed this 8th day of June, 1988, to the following counsel:

Avon N, Williams, Jr.
Richard H. Dinkins 
WILLIAMS & DINKINS 
203 Second Avenue North 
Nashville, TN 37201

Theodore M. Shaw 
NAACP Legal Defense Fund 
99 Hudson Street, 16th Floor 
New York, NY 10019

W.J. Michael Cody 
Patricia J. Cottrell 
Office of the Attorney General 
450 James Robertson Parkway 
Nashville, TN 37219

/s /  MARIAN F. HARRISON



SUPPLEMENTAL APPENDIX



A-i

TABLE OF CONTENTS

Page

Appendix A — Order and Memorandum of the United
States District Court, Middle District of Tennessee, 
dated June 1,1983................................................... A-l

Appendix B — Affidavit of Marian F. Harrison, dated
December 19, 1984 ..................................................  A-6



A-l —

APPENDIX A

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE, 

NASHVILLE DIVISION

Civil Action Nos. 2094, 2956

Robert W. Kelley, et al.,
Plaintiffs,

vs.
The Metropolitan County Board of Education of 

Nashville and Davidson County, Tennessee, et al., 
Defendants.

ORDER

(Received for Entry 8:30 A.M., June 1, 1983)

In conformity with the Memorandum entered this day ap­
proving a new desegregation plan for Metropolitan Nashville 
and Davidson County, the plan as presented by the 
Metropolitan Nashville Board of Education on April 14, 1983, 
is hereby approved and ordered to be implemented.

ENTER this 31 day of May, 1983.

/s /  Thomas A. Wiseman, Jr.
United States District Judge

Approved For Entry:

WILLIS & KNIGHT

By: /s /  William R. Willis, Jr.

By: /%/ Marian F. Harrison
215 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Defendant Board 
of Education



— A-2 —

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE, 

NASHVILLE DIVISION

Civil Action Nos. 2094, 2956

Robert W. Kelley, et al.,
Plaintiffs,

vs.
The Metropolitan County Board of Education of 

Nashville and Davidson County, Tennessee, et al., 
Defendants.

MEMORANDUM

(Received for Entry 8:30 A.M., June 1, 1983)

On April 14, 1983, this Court held a hearing on the Board of 
Education’s “ Plan Submitted in Response to Opinion of the 
Court of appeals for the Sixth Circuit,” filed by the Board on 
April 8, 1983. Testimony explaining the plan, utilizing maps, 
statistics, and other exhibits, was offered by the Board, and op­
portunity for cross-examination and/or objection was afforded 
to the Plaintiffs and the State Defendants. No objections were 
made by either the Plaintiffs or the State Defendants.

From the testimony and exhibits submitted, the Court finds 
that the plan presented by the Board as described in its pleading 
of April 8, 1983, and the amendment thereto filed on April 14, 
1983, meets fully the criteria set out by the Court of Appeals in 
its opinion on July 27, 1982, and the mandate issued pursuant 
thereto. Specifically, the pupil assignment plan submitted by 
the Board begins with the existing ratio of blacks to whites in the 
population as a starting point to maximize integration as defin­
ed by the Court of Appeals. That is, every effort has been made 
to draw zones for schools which will approximate the 33% black 
school population presently existing in the school system, with a 
deviation of 15% on either side of this percentage. Where



— A-3

deviations from this ratio have occurred and will occur, they are 
the result of factors beyond the Board’s control, including but 
not limited to demographic considerations which would 
necessitate extraordinarily long transportation distances to the 
nearest concentration of black or white students to correct the 
imbalances. It is clear from the proof that the greatest possible 
effort has been made to maximize desegregation within the 
guidelines set forth by the Court of Appeals, and accordingly 
the plan is approved in its entirety.

The pleadings filed by the Board on April 8, 1983, and on 
April 14, 1983, along with the exhibits thereto and the maps, ex­
hibits, and testimony describing the plan are incorporated into 
this decree by reference. In addition, the Agreement in Princi­
ple entered into by the Plaintiffs and the Board of Education 
and filed as Exhibit No. 2 in this cause, is incorporated into this 
decree by reference. The procedures contained therein for 
retention of jurisdiction by this Court supersede previous orders 
and restrictions which have governed this case. These pro­
cedures are ordered as follows:

“ [Under the plan as approved, the Board of Education re­
tains] the flexibility to make refinements where necessary 
in the plan to improve the integrity of zone lines, to im­
prove feeder patterns, and to improve the utilization of 
buildings, so long as these improvements do not adversely 
impact the pupil assignment plan.”

“ [Jurisdiction will be retained] pending implementation of 
the long range plan, at which time, or five years after the 
entry of this order, whichever occurs first, any party may 
move the Court to have the system declared unitary and 
the case dismissed.”

“ [While jurisdiction is retained by this Court,] the Board 
shall report to the Court and counsel for all parties on or 
before January 1st of each year the following information:



— A-4 —

1. An annual update of the Thirteen Year Analysis of 
Enrollment Patterns;

2. Numbers and use of portables during the current school 
year;

3. Any proposed new construction or expansion to house 
more students or regular programs; and

4. Any proposed zone changes with number of students in­
volved by race, grade and school.”

‘‘Should any party have any objections to the information 
contained in the report, those objections must be filed 
within 45 days from the date the report is filed.”

In addition to the pupil assignment plan, it should be noted 
that this Court has previously approved and ordered, and by 
this decree continues to approve and order the educational com­
ponents contained in the previous plan (remediation, “Together 
We Can, Together We Will,” black history, the middle school 
concept, and magnet school programs), and specifically ap-' 
proves the creation of a magnet school for the academically 
talented at Hume Fogg High School, a magnet school serving 
grades 5 - 8 at Caldwell Elementary School, and the Martin 
Luther King, Jr. Magnet School for the Health Sciences to be 
established at Pearl when the new Pearl-Cohn High School is 
completed.

Specific matters relating to faculty and personnel which are 
now governed by stipulation entered into between the parties on 
December 8, 1982, are not affected by this order.



— A-5

An appropriate Order will enter.

/s /  Thomas A. Wiseman, Jr. 
United States District Judge

Approved For Entry:

WILLIS & KNIGHT

By: / s /  William R. Willis, Jr.

By: / s /  Marian F. Harrison
Attorneys for Defendant Board 
of Education



APPENDIX B
IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF TENNESSEE 
NASHVILLE DIVISION

Nos. 2094, 2956 
Judge Wiseman

Robert W. Kelley, et al., 
vs.

Metropolitan County Board of Education of 
Nashville and Davidson County, Tennessee, et al.,

vs.
State of Tennessee; Lamar Alexander, Governor of the 
State of Tennessee; Robert L. McElrath, Commissioner 

of Education; and State Board of Education,

AFFIDAVIT OF MARIAN F. HARRISON

STATE OF TENNESSEE)

COUNTY OF DAVIDSON)

The Affiant, Marian F. Harrison, being first duly sworn, 
hereby deposes and says:

1. I am a partner in the law firm of Willis & Knight. Along 
with William R. Willis, Jr., I represent the Metropolitan 
Nashville Board of Education, et al.

2. On or about February 21, 1983,1 drafted the letter attach­
ed as Exhibit 1 for William R. Willis’ signature. The purpose of 
the letter was to invite the State defendants to participate in the 
planning process for the new desegregation plan. At the time 
this letter was written, the planning process was in its initial 
stages.

3. Sometime after March 1, 1983, we received the letter at­
tached hereto as Exhibit 2 from Mr. Robert B. Littleton, in

— A-6 —



A-7

response to our previous letter. He stated that because the 
State’s motion to vacate the Court’s order bringing the State in­
to the case was still pending, the State did not wish to par­
ticipate in the Board’s development of a new plan. Based on 
this letter, I filed a motion to dispose of the State defendants’ 
motion to vacate the order making them parties. Subsequently, 
on March 9, 1983, the District Court denied the State’s motion.

4. After the District Court denied the State’s motion to 
vacate, I called General Frank Scanlon on, to my recollection, 
at least two occasions to reissue our invitation. At no time did I 
have any indication from him or anyone else from the State that 
the State defendants wished to participate in the formulation of 
the desegregation plan.

5. The State’s position was in stark contrast to that of the at­
torney for plaintiffs, Senator Avon Williams. Senator 
Williams, at our invitation, made after thecommunications 
with the State set forth above, indicated a desire to see the plan 
the Board was then considering. He was shown such plan, and 
negotiation based on the plan then being discussed in public by 
the Board began.

6. Shortly after negotiations began, I talked again with Frank 
Scanlon and Bob Littleton. I then, from Arkansas, dictated by 
telephone a confirming letter on March 24, 1983, to General 
Bob Littleton, the purpose of which was to reconvey my invita­
tion that the State counsel and State defendants review the plan 
under consideration. This letter was signed on my behalf by 
Dick Lodge of our firm. (Exhibit 3)

7. On March 25, 1983, we received another letter from 
General Robert Littleton, which finally accepted our offer. (Ex­
hibit 4)

8. To my knowledge, at our invitation, General Scanlon at­
tended a subsequent meeting of the School Board. I wrote a let­
ter the next day to General Littleton reciting events of the past



— A-8 —

weeks. (Letter of March 29, 1983, Exhibit E.) We continued to 
suggest to General Scanlon, and other counsel for the State 
defendants, that they and their clients might want to have a 
demonstration of the maps and charts being developed at the 
Board. It is my understanding that staff members from the 
Board of Education made a presentation to General Scanlon at 
his convenience, which was taped by General Scanlon for show­
ing to his clients.

9. In spite of my many invitations to the State defendants to 
participate in the desegregation process, I must say that it ap­
pears they never intended to be involved in the planning pro­
cess.

FURTHER THE AFFIANT SAITH NOT.

/s /  Marian F. Harrison

Sworn to and subscribed before me 
on this 19th day of December, 1984.

/s /  Virginia S. Crimmons 
Notary Public

My Commission Expires: 11/1/87



— A-9

EXHIBIT 1

Law Offices 
WILLIS & KNIGHT 

Two Fifteen Second Avenue, North 
Nashville, Tennessee 37201 

Telephone 
Area 615-259-9600

February 21, 1983

The Honorable Robert Littleton 
Assistant Attorney General 
State of Tennessee 
450 James Robertson Parkway 
Nashville, Tennessee 37219

Re: Kelley, et al. v. Metropolitan 
Board of Education, et al.

Dear Bob:

I want to make sure that you and your clients understand that 
their participation in the development of a new desegregation 
plan for Metropolitan Nashville and Davidson County would be 
welcomed. Indeed, any assistance that you and your clients 
could provide is invited. Should you desire, the planning team 
would appreciate any suggestion you might have, and we invite 
you to participate in any and all sessions of the team and/or the 
Board regarding this plan.



— A-10

I can obtain a schedule of the planning team meetings for you 
should you wish to participate, and we will keep you advised of 
our progress.

Very truly yours, 

WILLIS & KNIGHT 

/s /  Bill

William R. Willis, Jr.

WRW:vc
cc: Mr. Kent Weeks 

Mr. Charles Frazier



— A -ll

EXHIBIT 2

STATE OF TENNESSEE

OFFICE OF THE ATTORNEY GENERAL 
450 James Robertson Parkway 

Nashville, Tennessee 37219

William M. Leech, Jr.
Attorney General & Reporter

William B. Hubbard
Chief Deputy Attorney General

Robert B. Littleton 
Special Deputy for Litigation

Honorable William R. Willis, Jr. 
WILLIS & KNIGHT

Deputy Attorney’s General 
Donald L. Corlew 
Jimmy G. Creecy 

Robert A. Grunow 
William J. Haynes, Jr. 

Robert E. Kendrick 
Michael E. Terry

Attorneys at Law
Two Fifteen Second Avenue, North 
Nashville, TN 37201

RE: Kelley, et al. v. Metropolitan 
Board of Education, et al.

Dear Bill:

Than you for your letter dated February 21, 1983 inviting the 
state’s participation in the development of a new desegregation 
plan by the Metropolitan Board of Education.



— A-12 —

Due to the fact that the state’s motion to vacate the Court’s 
order bringing the state into the case is stili pending, the state 
does not wish to participate in the Board’s development of a 
new plan at this time. If the state’s motion to vacate is denied 
prior to the hearings on the new plan, we must, as counsel for 
the state, make it clear that the state reserves the right to present 
such proof as to the plan as may be deemed necessary and ap­
propriate, including the possibility of proposing alternative 
plans, if necessary.

We would appreciate your keeping us advised of the Board’s 
progress.

Sincerely yours,

/s /  Bob Littleton
ROBERT B. LITTLETON 
Special Deputy Attorney General

RBL:mb
cc: Hon. Kent Weeks,

Chairman, Metropolitan Board of Education 
Hon. Avon N. Williams 
Attorney at Law 

Hon. Richard H. Dinkins 
Attorney at Law 

Hon. Frank Scanlon 
Assistant Attorney General



EXHIBIT 3

Law Offices 
WILLIS & KNIGHT 

Two Fifteen Second Avenue, North 
Nashville, Tennessee 37201

March 24, 1983

HAND DELIVERED

General Robert B. Littleton 
Special Deputy Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219

Re: Kelley, et al. v. Metropolitan 
Board o f  Education, et al.

— A-13 —

Dear Bob:

This letter serves as a written invitation to you and your 
clients to view the proposed plan which is now the subject of 
negotiations between the Plaintiffs and the Defendant Board of 
Education. As I suggested to Frank Scanlon on Monday even­
ing and to you on Tuesday, I think it would be in the best in­
terest of all parties if you and your clients understood the pro­
posal now on the table. I understand that in my absence on 
Wednesday, Dick Lodge again discussed with you the need to 
arrange a meeting for this purpose. Should you and your clients 
agree that this meeting is both necessary and beneficial, we 
should plan to have it immediately.

I look forward to hearing from you early today.

Very truly yours,

WILLIS & KNIGHT 

Marian F. Harrison

MFH:vc



— A-14

EXHIBIT 4
STATE OF TENNESSEE

OFFICE OF THE ATTORNEY GENERAL 
450 James Robertson Parkway 

Nashville, Tennessee 37219

March 25, 1983 
HAND DELIVERED

Ms. Marian F. Harrison 
Attorney at Law 
WILLIS & KNIGHT 
215 Second Avenue, North 
Nashville, Tennessee 37201

Dear Marian:

Re: Kelley, et al. v. Metropolitan 
Board o f  Education, et al.

This is to acknowledge receipt of your letter of March 24, 
1983, inviting the State defendants to view a proposed pupil 
assignment plan which is the apparent product of private 
negotiations between the School Board and the plaintiffs, of 
which we had no notice or opportunity to participate.

This office accepts your offer. Of course, due to the facts 
that our status in the lawsuit was only recently resolved and we 
have not been privy to negotiations, it is impossible to say at this 
juncture what position the State defendants will take regarding 
any plan negotiated by the Board and plaintiffs, or eventually 
adopted by the Metropolitan Board of Education.

Sincerely yours,

/s /  Robert B. Littleton
ROBERT B. LITTLETON 

Special Deputy Attorney General
RBL:jc
cc: Honorable Avon N. Williams



— A-15

EXHIBIT 5

LAW OFFICES 
WILLIS & KNIGHT 

Two Fifteen Second Avenue, North 
Nashville, Tennessee 37201

March 29, 1983

HAND DELIVERED

The Honorable Robert B. Littleton 
Special Deputy Attorney General 
State of Tennessee 
450 James Robertson Parkway 
Nashville, Tennessee 37219

Re: Kelley, et al. v. Metropolitan 
Board o f  Education, et al.

Dear Bob:

Pursuant to our invitation, General Scanlon attended the 
Board meeting last night at which a desegregation plan to which 
the plaintiffs have agreed in principle was presented. However, 
he again could not tell me a firm time when the State defendants 
could view the plan or discuss any proposed changes or 
modifications with us. Instead, General Scanlon indicated that 
he expected part of the State’s position to be that they had no 
input into this or any other plan. We must, of course, reiterate 
our continuing exception to this position.

Since the Court’s status conference in January, we have in­
vited you time and time again to participate or to discuss pro­
posed plans with us, to which invitations your clients have never 
responded affirmatively with a time or date. Nevertheless, you 
stated in your letter of March 25, 1983, that you had not been a 
party to any negotiations. Our repeated invitations to you to 
participate or to view proposals certainly negate this position.



— A-16 —

Unfortunately for us all, we have a deadline which, although ex­
tended, must be met in order to comply with the Court of Ap­
peals decision and to provide a timely resolution to this issue for 
the school system. As you are aware, the Board may vote on the 
proposal before it tonight, and any lack of participation by your 
clients must be deemed to have been generated by them, not by 
the Board.

Indeed, we stand ready at any time to discuss the proposal 
with you.

Very truly yours, 

WILLIS & KNIGHT 

/s /  Marian F. Harrison

MFH:vc

cc: The Honorable William M. Leech, Jr.
The Honorable William B. Hubbard 
The Honorable Frank Scanlon 
Avon N. Williams, Jr., Esquire

P.S. I have just had another telephone conference with 
General Scanlon wherein he reiterated your clients’ 
desire to view the current proposal before the Board. 
However, again logistics present a problem for you, 
and we agreed to arrange for a vidio taping tomorrow 
of the proposal. As stated above, however, the Board 
may vote on the proposal this evening, but the video 
taping is nevertheless acceptable to us.

M. F. H.