Metropolitan County Board of Education v. Kelley Brief in Opposition to Certiorari

    i ’ttpmm' QJmtrt nf to  Ittoft Butes
O ctober T eem , 1972 

No. 72-313

Isr the

M etropolitan  C o u nty  B oard oe E ducation  oe 
N ashville  and D avidson C ou nty  T ennessee, et al.,

—vs.—
Petitioners,

R obert IV. K elley , et ah.

petition  for a w r it  op certiorari to the  
united  states court of appeals for th e  sixth  circuit

BRIEF IN OPPOSITION TO CERTIORARI

J ack  Greenberg 
J ames M. N abrit , III 
N orman  J . C h a c h k in  
S ylvia  D rew

10 Columbus Circle 
New Tork, New York 10019

A von N. W illiam s , Jr.
404 James Robertson Parkway 
Nashville, Tennessee 37219

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinions B elow ....................................................................  1

Jurisdiction ..........................................................................  1

Questions Presented ..........................................................  2

Constitutional Provisions and Statutes Involved........  2

Statement ............................................................................  2

Reasons for Denying the Writ .......................................  3

C onclusion 5



In the

(Burnt rtf %  Itritrfi
O ctober T erm , 1972 

No. 72-313

M etropolitan  C ounty  B oard oe E ducation oe 
N ashville  and D avidson C ounty  T ennessee, et al.,

Petitioners,
—vs.—

R obert W. K elley , et al.,

petition  for a w r it  of certiorari to th e  
u nited  states court oe appeals eor th e  sixth  circuit

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the Court of Appeals is now reported at 
463 F.2d 732 and is reprinted in the Appendix to the Peti­
tion for Writ of Certiorari at pages 25-65. The opinion of 
the District Court is unreported and appears in the same 
Appendix at pages 1-24.

Jurisdiction

The jurisdiction of this Court would be properly invoked 
under 28 U.S.C. § 1254.



2

Questions Presented

1. Whether the Court of Appeals erred in refusing to 
overturn the District Court’s order directing the imple­
mentation of a desegregation plan, upon the basis of allega­
tions of hardship which had never been presented to the 
District Court.

2. Whether the District Court’s use of the system-wide 
ratio as a guideline in formulating an effective plan of de­
segregation went beyond that permitted by this Court in 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971).

3. Whether the Court of Appeals erred in holding that 
petitioners had waived any objections based upon Rule 23, 
F.R.C.P., or in the alternative that the provisions of the 
Rule had been complied with.

Constitutional Provisions and Statutes Involved

This case involves the Fourteenth Amendment to the 
United States Constitution, and particularly the equal pro­
tection clause thereof, which provides:

. . . nor shall any State . . . deny to any person . . . the 
equal protection of the laws.

This matter also involves the provisions of Rule 23, 
F.R.C.P.

Statement

The Statement contained in the petition is essentially 
correct, with the following exceptions:



3

1. To the extent that the language on page 4, concerning 
the charts which appear in the District Court’s opinion at 
pages 21-24 of the Appendix, is interpreted as implying 
that the District Court required a fixed ratio at each school, 
the Statement is incorrect. The charts to which reference 
is had were made by the HEW team which submitted a plan 
at the request of the Court, and simply show the projected 
results under implementation of the plan drawn by the 
team. See District Court Opinion at page 10 of the Ap­
pendix.

2. The allegations contained within the report reprinted 
as Appendix D to the Petition were never presented to the 
District Court nor tested at an evidentiary hearing, al­
though they were controverted by Respondents. Some of 
those hardships have been relieved, since the filing of the 
Petition for a Writ of Certiorari, by an order of the District 
Court directing the school authorities to purchase addi­
tional buses in order that all students might leave schools 
to return home not later than 4 :00 p.m.

A  more thorough history of this case is found in the 
opinion of the Court below, particularly at pp. 27, 28-46 of 
the Appendix to the petition.

Reasons for Denying the Writ

I.

The School Board first argues that the order of the 
District Court, affirmed by the judgment below, exceeded 
the bounds of its discretion under Swann, supra, because 
of the hardships imposed upon students by the plan. The 
Board failed to demonstrate to the District Court, prior 
to the entry of the order, that its good faith implementation 
would create such problems, but instead attacked the order



4

oil appeal with an untested affidavit of the Superintendent 
describing various difficulties alleged to have resulted in 
the implementation of the plan. The Court of Appeals 
refused to overturn the District Judge but did remind the 
school board that “ an injunctive decree in a school segrega­
tion case is always subject to modification on the basis of 
changed circumstances.”

With that background, it is nothing short of preposterous 
for the school authorities to ask this Court, without any 
record basis whatsoever, to reverse the well considered 
orders of a District Court and Court of Appeals on the 
basis of hypothetical allegations which it ought to be very 
easy for the school authorities to substantiate.

II.
Like other school systems which have sought review of 

school desegregation orders this Term, Petitioners make 
the flat and bald assertion that the District Court ordered 
racial balance. Not only did the District Court explicitly 
eschew such a course of action, and not only did the Court 
of Appeals pointedly affirm on this issue, but even a cursory 
glance at the projected enrollment statistics at pages 21-24 
of the Appendix to the Petition demonstrates a consider­
able variation among the percentage of black and white 
students to be assigned to each school—from 0% black to 
41% black in the elementary schools alone. The “Report” 
filed by the Superintendent on October 19, 1971 does not set 
out the actual enrollment figures achieved when the plan 
was implemented but respondents have no reason to suspect 
that in fact a perfectly even racial distribution resulted.



5

The purported issue under Rule 23, F.R.C.P. is abso­
lutely frivolous, as the opinion below makes perfectly clear 
and we shall not detain the Court with elaborate arguments.

CONCLUSION

Wherefore for the foregoing reasons respondents re­
spectfully pray that the petition be denied.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit , III 
N orman  J . C h a c h k in  
S ylvia  D rew

10 Columbus Circle 
New York, New York 10019

A von N. W illiam s , J r .
404 James Robertson Parkway 
Nashville, Tennessee 37219

Attorneys for Respondents

III.



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