Northcross v. Memphis City Schools Board of Education Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    I n  the

Ihtpratt? (Emtrt nf %  I n M  l̂ tatTB
O ctobee T ee m , 1973 

No. 73-...............

D eborah A. N orthcross, et al.,

—vs.—
Petitioners,

B oard of E ducation  op th e  M em ph is  C it y  S chools, et al.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Louis R. L ucas 
W illiam  E . C aldw ell 
E l ija h  A. N oel, Jr.

Ratner, Sugarmon and Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

J ack  G reenberg 
J am es M. N abrit, III 
N orman J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners

Of counsel:
A rth u r  C. M cF arland 

10 Columbus Circle 
New York, New York 10019



I N D E X

PAGE

Opinions Below ....................................................................  1

Jurisdiction ................. .............. .......................................... 2

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

Constitutional and Statutory Provisions Involved......... 3

Statement ..............         3

History of the Litigation ...... ............. ............ ..... . 3

The District Court’s Ruling and the Plan It 
Selected..... ...................    7

The Court of Appeals’ R u ling....... ...........................  14

R eason's for Grautintg th e  W rit—

I. The Decisions Below, Forever Assigning Over 
21,000 Black Students To All-Black Memphis 
Schools, Conflict With Swann and Davis, And
Rulings Of Other Courts Of Appeals, Because 
There Was No Finding, Or Showing On This 
Record, That Greater Desegregation Is Imprac­
ticable Or Would Cause Educational Harm Or 
Danger To Health Or Safety .................. ........... . 16

A. Swann Requires That District Courts Make
Findings To Support Their Desegregation 
Decrees ................................................... ..............  16

B. The Ruling Below Conflicts With Decisions
of Other Courts of Appeals Requiring Such 
Findings ......... ............... ........................ ..............  22



11

II. The Court Of Appeals Never Measured The Dis­
trict Court’s Decree Against The 'Requirements 
Of Swann Because It Erroneously Treated The 
District Court’s Entire Decision As A  Factual 
Finding Which Was Presumptively Correct Un­
der F.R. Civ. P. 52(a) ................. ...........................  25

III. The Decisions Below Were Based Upon Con­
stitutionally Impermissible Considerations Of 
White Community Hostility To Desegregation 30

C onclusion ' ..........................................................................  33

A ppendix—

Opinion of the Court of Appeals ............................. la

Opinion of the District Court ...................................  7a

District Court Judgment of May 17, 1973 ............. 33a

District Court Judgment of July 26, 1973 ........... 34a

PAGE



I l l

T able of A uthorities

Cases page

Adams v. Rankin County Board of Educ., 485 F.2d 324
(5th Cir. 1973) ......... ............... ......................... ............. 23-24

Adams v. School Dist. No. 5, Orangeburg, 444 F,2d 99
(4th Cir. 1971) .... .................... ...... .............................. 22,23

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 
(1969) ......................................................    5,28

Baumgartner v. United States, 322 U.S. 665 (1944).... 26n 
Bivins v. Board of Educ. of Bibb County, 460 F.2d

430 (5th Cir. 1972) ............. ............... ..... .....................  23
Boykins v. Fairfield City Bd. of Educ., 457 F.2d 1091

(5th Cir. 1972) .........    23
Brewer v. School Bd. of Norfolk, 456 F.2d 943 (4th

Cir.), cert, denied, 406 U.S. 905 (1972) ....... .............  l ln
Brown v. Board of Educ., 347 U.S. 483 (1954), 349 U.S.

294 (1955) ................. ..................... ...................... 17n, 25, 33
Buchanan v. Warley, 245 U.S. 60 (1917) ...... ........ .......  31

Calhoun v. Cook, 430 F.2d 1174 (5th Cir. 1970) .........  5n
Cooper v. Aaron, 358 U.S. 1 (1958) ....... ............... 19, 31, 33

Daniel v. Washington County Bd. of Educ., 488 F.2d
82 (5th Cir. 1973) .................................    20

Davis v. Board of School Comm’rs of Mobile, 402 U.S.
33 (1971) ...................    5-6,16,17,18,

21, 22, 28

Gordon v. Jefferson Davis Parish School Bd., 446 F.2d
266 (5th Cir. 1971) ................    24

Goss v. Board of Educ., 373 U.S. 683 (1973) ............... 4n
Goss v. Board of Educ., 482 F.2d 1044 (6th Cir. 1973), 

cert, denied, 42 U.S.L.W. 3423 (Jan. 21, 1974)....... . 22



IV

Great A&P Tea Co. v. Supermarket Equipment Corp.,
340 U.S. 147 (1950) ......................................................... 27

Green v. County School Bd., 391 TT.S. 430 (1968)....4,18,20

Haney v. County Bd. of Educ., 429 F.2d 364 (8th Cir. 
1970) ...................................................................... ...........  24

Johnson v. Georgia Highway Express, Inc., 488 F.2d 
714 (5th Cir. 1974) ............................... .......................... 22

Kelley v. Metropolitan County Bd. of Educ., 463 F.2d 
732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972).... l ln  

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert.
denied, 413 U.S. 919 (1973) ....................................   18

Keyes v. School Dist. No. 1, Denver, 413 U.S. 189 
(1973) ................................................................................  29

Lemon v. Kurtzman, 411 U.S. 192 (1973) .... ................ . 22

Mapp v. Board of Educ., 477 F.2d 851 (6th Cir.), cert.
denied, 42 -U.S.L.W. 3290 (Nov. 12, 1973) .................  22

Mayo v. Lakeland Highlands Co., 309 U.S. 310 (1940) 21 
Medley v. School Bd. of Danville, 482 F.2d 1061 (4th 

Cir. 1973), cert, denied, 42 U.S.L.W. 3423 (Jan. 21,
1974) ....... ................. ........................................................  7n

Monroe v. Board of Comm’rs, 391 U.S. 450 (1968)......4, 20,
31, 33

Neil v. Biggers, 409 U.S. 188 (1972) ..............................  29
Northcross v. Board of Educ. of Memphis, 397 U.S.

232 (1970) .............................................................. 5 ,17n, 28n
Northcross v. Board of Educ. of Memphis, 466 F.2d 

890 (6th Cir.), stay 'denied, 409 U.S. 909 (1972), 
cert, denied, 410 U.S. 926 (1973), vacated in part 
and remanded on other grounds, 412 U.S. 427 (1973)

6 ,14n, 18

PAGE



V

Northcross v. Board of Educ. of Memphis, 463 F.2d
329 (6th Cir. 1972) ................. ........................... ....... . 6n

Northcross v. Board of Educ. of Memphis, 444 F.2d
1184 (6th Cir. 1971) ........................................ ............. . 6n

Northcross v. Board of Educ. of Memphis, 444 F.2d
1179 (6th Cir. 1971) ...................................................... 6,16

Northcross v. Board of Educ. of Memphis, 420 F.2d
548 (6th Cir. 1970) ................................ .......................  5

Northcross v. Board of Educ. of Memphis, 420 F.2d
546 (6th Cir. 1969) .... ..... ................ ..... ............ ...........  5

Northcross v. Board of Educ. of Memphis, 333 F.2d
661 (6th Cir. 1964) .......... .............................................. 4

Northcross v. Board of Educ. of Memphis, 302 F.2d
818 (6th Cir.), cert, denied, 370 U.S. 944 (1962).....  3-4

Northcross v. Board of Educ. of Memphis, 341 F. Supp.
583 (W.D. Tenn. 1972) ........... ......... .............................  6

Northcross v. Board of Educ. of Memphis, 312 F. Supp.
1150 (W.D. Tenn. 1970) ............................. ....... ..... ....  5

Orvis v. Higgins, 180 F.2d 537 (2d Cir. 1950), cert, 
denied, 340 U.S. 810 (1951) ....... .............. ..................  27

Raney v. Board of Educ., 391 U.S. 443 (1968) ........... 4
Robinson v. Shelby County Bd. of Educ., 467 F.2d 

1187 (6th Cir. 1972) ..... '........................ ..... .................  22

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

PAGE

16,17,18, 21, 
22, 25, 28

hompson v. School Bd. of Newport News, 465 F.2d 
83 (4th Cir. 1972), cert, denied, 413 U.S. 920 (1973) 23

Thompson v. School Bd. of Newport News, 465 F.2d 
83 (4th Cir. 1972), cert, denied, 413 U.S. 920 (1973)

United States v. Burr, 25 Fed. Cas. 30 (No. 14,592d, 
1807) ....................... .................. ....................................... 2 2



VI

United States v. General Motors Corp., 384 U.S. 127
(1966) .................................. ... ................................... 27n, 29n

United States v. John J. Felin & Co., 334 U.S. 624
(1948) ................................................................. ,........... 28-29

United States v. Parke Davis & Co., 362 U.S. 29 (1960) 27
United States v. Scotland Neck City Bd. of Educ., 407

U.S. 484 (1972) .................................................. 20,31-32,33
United States v. United States Gypsum Co., 333 U.S.

364 (1948) ....... ......................................... .......................  27

Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) ....... ...... ....................................... ........... ...31n, 32

Other Authorities

F.R. Civ. P. 52(a) ....... .............................. .................. ....22,25

L. Friedman, ed., A rgum ent  (1969) ................. .............  31

PAGE



I n  the

Bn$vmw ( t a r t  n f tty? lu t t p ii  S t a t e s

O ctober T erm , 1973 

No. 73-...............

D eborah A. N orthcross, et al., 

—vs.—
Petitioners,

B oard of E ducation  of th e  M e m ph is  City  S chools, et al.

PETITION FOR A W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Sixth Circuit entered in this case on December 4, 1973.

Opinions Below

The opinion of the United States Court of Appeals for 
the Sixth Circuit is unreported, and is reprinted in the 
Appendix, infra, pp. la-6a. The opinion of the United 
States District Court for the Western District of Tennessee 
is unreported and is reprinted in the Appendix, infra, pp. 
7a-32a.

Prior reported opinions in this matter are found at 302 
F.2d 818 (6th Cir.), cert, denied, 370 U.S. 944 (1962); 333 
F.2d 661 (6th Cir. 1964); 420 F.2d 546 (6th Cir. 1969), 420 
F.2d 548 (6th Cir.), remanded, 397 U.S. 232 (1970); 312



2

F. Supp. 1150 (W.D. Tenn. 1970), remanded, 444 F.2d 1179 
(6th Cir. 1971); 444 F.2d 1184 (6th Cir. 1971); 341 F. Supp. 
583 (W.D. Tenn.), vacation of stay denied, 463 F.2d 329 
(6th Cir.), remanded, 466 F.2d 890 (6th Cir.), stay denied, 
409 U.S. 909 (1972), cert, denied, 410 U.S. 926 (1973), 
vacated in part and remanded on other grounds, 412 U.S. 
427 (1973).

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1254(1). The judgment of the Court of Appeals 
was entered December 4, 1973.

Questions Presented

1. Where there is a plan in the record, drawn by local 
school administrators, which would desegregate every 
facility and which is shown to be feasible and practicable, 
without contradiction either by the evidence or in the opin­
ion of the district court, can Memphis’ dual school system 
be said to be dismantled and only unitary schools estab­
lished by the implementation of another plan which assigns 
21,000 black students (nearly one-third of all black pupils 
in the city) to 25 all-black or virtually all-black schools!

2. Did the courts below err in approving implementation 
of that less effective plan since:

(a) the trial court made no specific findings which, 
under Swann, could support its decree; and

(b) the Court of Appeals treated the trial court’s 
preference for the less effective plan, not as a legal 
conclusion subject to plenary review, but as a 
factual finding which was presumptively correct 
under F.R. Civ. P. 52.



3

3. Did the courts below commit unconstitutional error 
in settling for the less effective desegregation plan because 
of white community hostility to “ the greatest possible de­
gree of actual desegregation?”

Constitutional and Statutory Provisions Involved

This case involves the Equal Protection Clause of Sec­
tion 1 of the Fourteenth Amendment to the Constitution 
of the United States.

This case also involves Rule 52(a) of the Federal Rules 
of Civil Procedure, which provides, in pertinent part:

In all actions tried upon the facts without a jury or 
with an advisory jury, the court shall find the facts 
specially and state separately its conclusions of law 
thereon, and judgment shall be entered pursuant to 
Rule 58; . . .  . Findings of fact shall not be set aside 
unless clearly erroneous, and due regard shall be given 
to the opportunity of the trial court to judge of the 
credibility of the witnesses. . . .  I f an opinion or memo­
randum of decision is filed, it will be sufficient if the 
findings of fact and conclusions of law appear therein.

Statement

History o f the Litigation

The complaint in this case, seeking desegregation of the 
Memphis, Tennessee public schools, was filed March 31, 
1960. On appeal from a district court order upholding the 
Tennessee Pupil Assignment Law as an appropriate remedy 
for Memphis’ admittedly unconstitutional dual school sys­
tem, the Sixth Circuit reversed with directions to disestab­
lish the segregated system. Northcross v. Board of Educ. of



4

Memphis, 302 F.2d 818 (6th Cir.), cert, denied, 370 U.S. 
944 (1962).

On remand the district court approved a stair-step, grade- 
a-year plan utilizing geographic zoning and minority-to- 
inajority transfers. The present petitioners appealed, and 
the Sixth Circuit accelerated the grade-a-year approach, 
invalidated the minority-to-majority transfer,1 and, finding 
substantial evidence of racial gerrymandering, directed the 
district court to give close scrutiny to all attendance zone 
lines. Northeross v. Board of Educ. of Memphis, 333 F.2d 
661 (6th Cir. 1964).

Following the filing of a motion for further relief by 
the present petitioners on May 13, 1966, the school board 
submitted a modified plan incorporating minimal zone 
changes and permitting “ free transfers,” 1 2 which was ap­
proved by the district court without hearing on July 29, 
1966. The court made no ruling on petitioners’ motion for 
further relief.

After this Court’s decisions in Green v. County School 
Bd., 391 U.S. 430 (1968), Raney v. Board of Eddie., 391 U.S. 
443 (1968) and Monroe v. Board of Comm’rs, 391 U.S. 450 
(1968), petitioners filed a second motion for further relief 
on July 26, 1968. The district court held several hearings 
and on May 15, 1969 issued a memorandum opinion (un­
reported) concluding that the state-imposed dual system 
had not been dismantled. The court ordered that faculty 
desegregation commence, established a 1969-70 goal of 20% 
minority teachers in each school, and directed the board to 
submit revised zone lines; but it declined to void the free- 
transfer provision or to enjoin additional school construc­

1 See Goss v. Board of Educ. of Knoxville, 373 U.S. 883 (1963) 
(1968).

2 See Monroe v. Board of Comm’rs of Jackson, 391 U.S. 450



5

tion pending approval of new zones.3 The Sixth Circuit 
declined to order further remedial steps but remanded the 
case for reconsideration by the district court after the re­
vised attendance zones were drawn. Northcross v. Board of 
Educ. of Memphis, 420 F.2d 546 (1969).

Upon petitioners’ subsequent motion for injunctive relief 
pending certiorari, the Sixth Circuit sua sponte declared 
Memphis to be a unitary school system, thereby seeking to 
distinguish this case from Alexcmder v. Holmes County Bd. 
of Educ., 396 U.S. 19 (1969) and Carter v. West Feliciana 
Parish School Bd., 396 U.S. 226 (1969). See Northcross v. 
Board of Educ. of Memphis, 420 F.2d 548 (6th Cir. 1970). 
This Court granted certiorari and reversed the Sixth Cir­
cuit’s holding that Memphis was a unitary system; it af­
firmed the remand with added instructions that the dual 
system in Memphis be promptly disestablished in accord 
with Alexander and Carter. Northcross v. Board of Educ. 
of Memphis, 397 U.S. 232 (1970).

After extensive proceedings on remand from this Court, 
the district court issued an opinion on May 1, 1970 which 
required further faculty desegregation and prior judicial 
approval of school construction or site acquisition pro­
posals, eliminated the free-transfer provision, but rejected 
the use of contiguous and noncontiguous school pairing and 
pupil transportation to accomplish actual desegregation. 
Northcross v. Board of Educ. of Memphis, 312 F. Supp. 
1150 (W.D. Tenn. 1970). On appeal, the Sixth Circuit re­
manded for reconsideration in light of the then recent deci­
sions of this Court in Swann v. Charlotte-MecMenburg Bd. 
of Educ., 402 U.S. 1 (1971) and Davis v. Board of School * 1

3 See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1, 20-21 (1971); Calhoun v. Cook, 430 F.2d 1174 (5th Cir. 1970) ; 
Cisneros v. Corpus Christi Independent School Dist., 459 F.2d 13 
(5th Cir. 1972).



6

Comm’rs, 402 U.S. 33 (1971). Northcross v. Board of Educ. 
of Memphis, 444 F.2d 1179 (6th Gir. 1971).4

The district court again conducted an extensive hearing 
and, in its decision (unreported) of December 10, 1971, 
held that one-race or virtually one-race schools in Memphis 
are vestiges of state-imposed segregation. The court di­
rected the preparation and submission of alternate pupil 
desegregation plans, and in its opinion of April 20, 1972, 
341 F. Supp. 583, directed implementation of the plan 
which accomplished the least desegregation (“ Plan A ” ).5 
By a divided vote, the Court of Appeals affirmed “Plan A ” 
as an interim measure and remanded the case with direc­
tions to establish a fully unitary school system as promptly 
as possible. Northcross v. Board of Educ. of Memphis, 466 
F.2d 890 (6th Cir.), stay denied, 409 U.S. 909 (1972), cert, 
denied, 410 U.S. 926 (1973), vacated in part and remanded 
on other grounds, 412 U.S. 427 (1973).6

By this petition, plaintiffs in this case seek review of 
the rulings by the courts below following that 1972 remand.

4 At the same time, the Court of Appeals denied rehearing of 
an earlier affirmance of certain school construction proposals. 
Northcross v. Board of Educ. of Memphis, 444 F.2d 1184 (6th Cir.
1971) .

6 This plan did require, for the first time, modest transportation 
of Memphis students to achieve desegregation and its effectuation 
was immediately stayed by a panel of the Sixth Circuit. See 
Northcross v. Board of Educ. of Memphis, 463 F.2d 329 (6th Cir.
1972) . Following the subsequent panel decision on the merits, in 
which the stay was vacated, the district court conducted hearings 
and issued a decision on September 29, 1972 ordering the imple­
mentation of “Plan A ” at the start of the second semester (in 
January, 1973).

6 By order subsequent to its main decision, the Court of Appeals 
had denied a motion of petitioners for an award of costs and 
attorneys’ fees in connection with the appeal. That order was 
vacated by this Court.



7

The District Court’ s Ruling and the Plan It Selected

In accordance with various district court orders, the 
school board designated a team of staff members to pre­
pare a plan of desegregation. Of various alternative sug­
gestions, the board ultimately determined to submit three 
alternate elementary and two alternate secondary proposals 
to the court,7 with a recommendation that a combination of 
Plan II elementary and Plan II secondary8 was preferred 
as the “least disruptive and least expensive plan.” 9

Plan II affects all of the formerly all-white schools in 
the system10 but retains 25 all-black or virtually all-black

7 As the district court noted in its subsequent opinion (9a), the 
rejection by the board of an earlier team-prepared secondary plan 
ultimately resulted in the submission of more than one proposal 
to the court.

8 The plans all had a variety of designations. Plan II elementary 
and Plan II secondary were generally treated as one combined 
alternative and Plan I secondary and Plan III elementary as 
another; the “ Team” elementary plan was considered adaptable 
to either secondary plan. Since the petitioners supported combined 
plan I-III and the Board combined plan II (10a), the bulk of the 
evidence concerned these.

9 At no time did the board ever announce educational or educa­
tion related (e.g., time and distance of travel) reasons for its 
preference for Plan II, nor for its dislike of the alternative plans 
presented, although the board did direct its attorney to argue for 
the preferred plans. And at the hearing there was no uniformity 
of opinion among the board’s staff members who testified: some 
staff-member witnesses preferred an elementary plan different 
from the board-selected plan, and others preferred a different 
secondary plan.

10 Although, as the Sixth Circuit noted, Plan II (approved by 
the district court) “ includes no all-white units” (3a), the plan 
does leave a considerable number of Memphis schools with pre­
dominantly white enrollments which are “substantially dispropor­
tionate” in the Swann sense. See Medley v. School Bd. of Dan­
ville, 482 F.2d 1061 (4th Cir. 1973), cert, denied, 42 U.S.L.W. 
3423 (Jan. 21, 1974). This is in large measure because 25 all-black 
schools were not included in pairings or clusterings with the



8

schools: 19 all-black elementary schools which are attended 
by about 14,000 students in grades 1-6 (40% of all black 
pupils in these grades), 4 junior high schools to which more 
than 4,500 (23% of all black) children in grades 7-9 are 
assigned, and 2 all-black high schools (Booker T. Washing­
ton and George Washington Carver) attended by nearly 
3,000 black (20% of all black) high school pupils.11 Plan 
I-III11 12 projected desegregation of all schools in the system.13

Generally, both of the plans prepared by the board’s team 
accomplish desegregation of the secondary grades by non­
contiguous zoning,14 although desegregation has also been

formerly all-white facilities. Desegregation of the 25 remaining 
all-black schools, as sought by this Petition, will almost certainly 
also eliminate the disproportionately white schools. Plan I-III, 
supported below by petitioners, would have accomplished both 
objectives.

11 The “ Team” elementary plan also left 19 black elementary 
schools, although not all are the same schools which remain all 
black under Plan I I ; and some of the all-black schools in Plan II 
would be desegregated in the “ Team” plan.

12 See note 8 supra.
13 The projected elementary school enrollments under Plan III 

ranged from a low of 36% black at one school to a high of 74% 
black at another, but with no remaining pattern of racial identity. 
In the secondary plan (Plan I) as drawn by the school staff, 
however, there emerged a clear pattern of continuing racial 
identifiability: most formerly all-black high schools were projected 
to be about 70% black and most of the all-white high schools were 
projected to be about 70% white. This resulted from the size of 
the non-contiguous zones established by the team (see note 14 
infra) and the team’s approach to school capacities. Petitioners 
accordingly proposed modifications of Plan I increasing the degree 
of desegregation, generally by enlarging the non-contiguous zones 
within the framework selected by the board’s team.

14 For example, a white junior high school is designated to ex­
change a specified number of students with a black junior high 
school; using the pupil locator map, the board’s staff then defines a 
segment of each school’s prior attendance zone which contains 
approximately the desired number of pupils; each segment becomes 
part of the other school’s attendance area. At the time of the



9

accomplished (under both “ Plan A ” and Plans I and II) by 
the rearrangement of contiguous zones. The primary de­
segregation technique utilized in the elementary plans, on 
the other hand, is pairing and clustering (usually with 
grade reorganization) of both contiguous and noncontigu­
ous zones.15 16 Under Plan II the longest bus ride is 45 
minutes at both elementary and secondary levels; about 
44% of the 40,000 students projected to be transported 
would spend between 31 and 45 minutes en route. Plan 
I-III projected the transportation of approximately 48,00016 
students, with the longest bus ride being 52 minutes, using 
expressway routes;17 most students bused under this plan 
would be en route between 31 and 45 minutes.

The total projected annual cost of Plan IT was $1,683,897 
or 1.6% of the board’s annual budget of approximately

hearing on the plans, the team had not drawn the specific non­
contiguous ( “satellite” ) zones, but had merely approximated the 
desired numbers of students proposed for exchange between 
designated schools (lla-12a). These were submitted prior to entry 
of the trial court’s judgment but following issuance of its opinion 
selecting the plan to be thus more fully developed for actual 
implementation.

15 For example, three elementary (grades 1-6) schools and their 
zones might be combined (“ clustered” ) into a single attendance 
area, with one school designated to house all students in grades 1-2, 
another to house all pupils in grades 3-4, and the third to accom­
modate all pupils in grades 5-6, residing within the enlarged 
attendance zone.

16 57,000 students, if petitioners’ proposed modifications to Plan I 
(see note 13 supra) were effectuated (17a-18a).

17 For some reason, the district court perceived that “ [t]he 
defendants advocate not using the expressways . . . .”  (17a). The 
fact is, however, that at the time of the hearing the board had no 
position on the matter, pending further discussions with its 
transportation contractor. The decision was made ultimately to 
use the expressways, and the plan (Plan II) presently in operation 
is being implemented by travelling on the expressways whenever 
feasible.



1 0

$104 million. The projected cost of Plan I-XII was $2,793,911 
or 2.6% of the budget.

At the three-day hearing which commenced April 18, 
1973, the plans were presented by way of documentary and 
map exhibits, with explanatory testimony by three mem­
bers of the board’s team. These witnesses testified gen­
erally that, although each accomplished less desegregation 
than Plan III, they preferred either Plan II or the “ Team” 
elementary plan because the latter two required shorter 
transportation times and distances and would cost less.

None of the team members was willing to state that any 
of the Plan III times and distances presented a health or 
safety hazard or would impinge on existing educational 
programs.18 The team members were positive only in their 
testimony, in the words of one, that Plan III “would be less 
palatable to the citizenry.”  (4/18/73 Tr. 60). The Super­
intendent of Schools, who also testified, stated that he was 
not opposed to any of the elementary and secondary plans 
“personally or professionally” (4/18/73 Tr. 489), although 
he preferred the less expensive plans with less pupil trans­
portation.19

The (white) team member who demonstrated the most 
detailed knowledge of all of the plans, testified that “ if we 
are to effectively desegregate every [elementary] school 
. . . , I don’t know of anyone who could draft any plan that

18 The board’s educational psychologist testified that shorter 
times and distances of travel for elementary children were prefer­
able, but he identified no time or distance in any of the plans as 
being educationally unsound or hazardous. The headmaster of one 
of Memphis’ traditional, more prestigious private schools testified 
(by stipulated affidavit) that his school daily transported children 
“ in the general range of three years to 18 years of age” over routes 
consuming from 55 to 75 minutes (4/18/73 Tr. 439-41).

19 The Superintendent also testified about the extent of “white 
flight” after implementation of the interim “Plan A,” and ex­
pressed his desire for a final, permanent plan.



1 1

does a better job as far as considering times and distances 
and these kind of things [than does Plan III].” (4/18/73 
Tr. 230-31).

As to the secondary plans (Plan I and Plan II), no wit­
ness stated any serious objection to Plan I, which proposed 
desegregation of all secondary units. One team member 
stated a clear preference for Plan I because it did achieve 
complete secondary integration and because the times and 
distances were no greater than those required by the 
board-preferred elementary plan (Plan II) and were less 
than those in the “Team” elementary plan.20

Petitioners’ expert witness, Dr. Gordon Foster, Director 
of the Title IV  Desegregation Center at the University of 
Miami, concluded the testimony of witnesses pertaining 
to the plans by urging adoption of the board’s elementary 
and secondary proposals (Plan I-III) which would accom­
plish the goal of complete desegregation. He stated that 
the travel times and distances in Plan I-III compared favor­
ably with those of desegregation plans then in effect in 
other, geographically larger urban school systems through­
out the country,21 and that none of the proposed times or 
distances posed health, safety, or educational problems.

20 Subject to minor modifications, any of the elementary plans 
could be combined with either of the secondary plans (4/18/73 
Tr. 564-66).

21 For example, Dr. Foster testified that the plans in effect in 
Nashville-Davidson County, Tennessee (Kelley v. Metropolitan 
County Bd. of Educ., 463 F.2d 732 (6th Cir.), cert, denied, 409 
U.S. 1001 (1972)) and Charlotte-Mecklenburg County, North 
Carolina {Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 
1 (1971)), both of which are about twice the geographic size of 
the Memphis system, required times and distances as great or 
greater than those projected for Plan I-III. Dr. Foster also 
favorably compared Plan I-III with plans which are in effect in 
such school systems as Tampa and Jacksonville, Florida and 
Mobile, Alabama, all of which are about three times the size of 
the Memphis system.



1 2

The district court filed its memorandum decision on the 
plans presented May 3, 1973 (7a-32a), with implementing 
judgments entered May 17, 1973 and July 26, 1973 (33a- 
38a). As discussed in greater detail infra, the court gen­
erally made findings with regard to such uncontroverted, 
documented facts as the times and distances involved in 
each plan, the numbers of students projected to be trans­
ported under each plan, the projected annual cost of each 
plan,22 23 and the desegregation techniques utilized in each 
of the plans, etc. (lla-18a). The district court’s opinion 
then summarizes the reasons for the team’s preference for 
Plan I I :

The lesser degree of desegregation in combined Plan 
II is based primarily upon four factors pertaining to 
effectiveness, feasibility and pedigogical soundness. 
Those factors are time and distance travelled on buses, 
cost of transportation, preservation of desegregation 
already accomplished, and adaptability.

(18a-19a). The court’s explanation of these factors, re­
duced to its essence, is as follows: (1) the board’s staff 
witnesses thought “that transportation times in the neigh­
borhood not more than 30 to 40 minutes are preferable to 
the welfare of elementary pupils” (19a);28 (2) “ the longer 
trips for the buses significantly increase the per pupil cost” 
and “ [d]ue to the long history of racial discrimination in 
this city and its resulting racial hostility, experience has

22 In connection with costs, the court neglects to note that the 
system is entitled to receive state reimbursement for annual pupil 
transportation operating expenses, equivalent to approximately 
30%-40% of its costs.

23 The district court’s approval of Plan II, supported by the 
Memphis Board, despite the fact that pupils would under that 
plan be transported up to 45 minutes, indicates that the court 
did not view the “ 30 to 40” minute testimony as establishing a 
maximum safe and healthful bus ride for school children.



13

shown that extensive preparation is necessary to effectively 
bring the students of different races together. . . . [This] 
costs money” (19a, 20a); (3) although the team had no 
reservations about “undoing” existing desegregation ar­
rangements wherever it “was considered to be educationally 
preferable,” the court had previously approved “the prac­
tice of preserving desegregated schools which have ac­
complished desegregation voluntarily” (20a) ;24 * and (4) 
school desegregation causes a number of white students to 
refuse “to attend school with black students, particularly at 
black schools, result [ing] in their leaving the system for 
private schools or moving to unaffected areas” (23a).26

The district court made no finding in its opinion that (a) 
the projected times or distances of pupil transportation 
under any of the plans were likely to be injurious to the 
health or safety of any child, of any age; or that (b) the 
transportation required under any of the plans would inter­
fere with the educational process or with any educational 
programs of the Memphis system; or that (c) the projected 
cost of the most expensive Plan I-III, equivalent to less 
than 3% of the board’s overall budget, was beyond the

24 As noted above, Plan A (“ preserved as much as possible” in 
Plan II (20a)) was not implemented voluntarily but under court
order.

26 Although the court earlier referred to “ the expected unwilling­
ness of white patrons to send their children to those particular 
Mack schools [not desegregated under Plan II] in the light of the 
location and the distances involved in the necessary exchange of 
white and black students” (21a) (emphasis supplied), the court 
supports its “white flight” findings by pointing to the example 
of two contiguous schools paired under Plan A (22a-23a). The 
evidence also demonstrated losses of white students from schools 
not even reached by Plan A. Thus race, not distance, is the 
relevant factor. This was confirmed by data submitted when the 
satellite zones for Plan II were furnished to the court (see note 13 
supra), which revealed no pattern of higher white attrition rates 
related to the distances between paired schools.



14

means of the school system.26 Nevertheless, after stating 
the team’s reasons for preferring Plan II, the district court 
concludes:

On the basis of the above findings, this Court concludes 
that implementation of the secondary Plan II and Ele­
mentary Plan II . . . will constitute [constitutional] 
compliance . . . even though the plans leave some all 
black schools.

(23a-24a) (emphasis supplied). Nowhere in its opinion 
does the court confront the undisputed fact that the plan 
selected permanently consigns over 21,000 black children 
to attendance at 25 state-created all-black schools.27

The Court of Appeals’ Ruling

On December 4, 1973, the Court of Appeals for the Sixth 
Circuit affirmed the district court in a short, per curiam 
opinion. The Court of Appeals described the proceedings 
and plans briefly,28 then held as follows:

The District Court, sitting as trier of fact, reviewed 
the merits of the alternative plans submitted by ap­
pellee before reaching its decision. That decision can­
not be set aside unless clearly erroneous. Rule 52(a) 
Fed. R. Civ. P. In Goss v. Board of Education of

26 Cf. Brewer v. School Bd. of Norfolk, 456 F.2d 943, 947 n. 6 
(4th Cir.), cert, denied, 406 U.S. 905 (1972).

27 The court had earlier found, on December 10, 1971, that the 
one-race black schools in Memphis were the result of past dis­
criminatory acts of the school officials. See 466 F.2d, at 893. 
Compare Swann, 402 U.S., at 26.

28 Like the district court, however, the Sixth Circuit was reluctant 
to consider the extensive segregation validated by its judgment; 
its language that “Plan II leaves a number of black students in 
all-black or predominantly black schools” (4a) (emphasis supplied) 
hardly reflects the reality that there are over 21,000 such black 
students—nearly a third of all black pupils in Memphis.



15

Knoxville, 483 F.2d 1044, 1047 (6th Cir, 1973), this 
Court, faced with a similar question, stated that “An 
appellate court simply cannot violate this settled prin­
ciple of our jurisprudence, no matter how desirable a 
particular result may appear to be.” We conclude that 
the District Court’s choice of Plan II was not clearly 
erroneous and must, therefore, be upheld.

The District Court’s analysis of the proposed alterna­
tives was both thoughtful and thorough, and we do not 
find the conclusions reached to be clearly erroneous. 
As we stated in Goss, supra, at 1047, “The experienced 
District Judge who has lived with this case from its 
inception analyzed the evidence in great detail. His 
findings are supported by substantial evidence and are 
not clearly erroneous.” The above statement has equal 
validity here. The May 3, 1973 Memorandum Decision 
of the District Court ordering the implementation of 
Plan II and designated Plan Z is hereby affirmed. 
[4a, 6a]



16

REASONS FOR GRANTING THE WRIT

I.

The Decisions Below, Forever Assigning Over 21,000 
Black Students To All-Black Memphis Schools, Conflict 
With Swann and Davis, And Rulings O f Other Courts 
O f Appeals, Because There Was No Finding, Or Show­
ing On This Record, That Greater Desegregation Is Im­
practicable Or W ould Cause Educational Harm Or Dan­
ger To Health Or Safety.

A. Swann Requires That District Courts Make Findings To 
Support Their Desegregation Decrees.

This action to desegregate the public schools of Memphis, 
Tennessee was filed nearly fourteen years ago. While it was 
pending before the Sixth Circuit on one of many appeals 
seeking to move the system closer to actual desegregation, 
this Court issued its landmark rulings attempting* to define, 
with greater clarity, the remedial obligations of formerly 
dual school districts, Swann v. Charlotte-MecJclenburg Bd. 
of Educ., 402 U.S. 1 (1971) and Davis v. Board of School 
Comm’rs of Mobile, 402 U.S. 33 (1971). The Memphis case 
was remanded to the trial court for adoption of a new 
desegregation plan and further proceedings in conformity 
with Swann and Davis, 444 F.2d 1179 (6th Cir. 1971).

Now, many hearings and two appeals later, plaintiff 
black children have recourse only to this Court for vindica­
tion of the constitutional rights they sought to protect 14 
years ago when this suit was filed. Under the decree 
approved below, nearly a third of all black pupils in 
Memphis (more than 21,000 black children) are assigned— 
permanently and finally—to 25 all-black schools. Many 
will attend only all-black schools throughout their twelve-



17

grade public education. Far from being in conformity with 
this Court’s interpretations of the Fourteenth Amendment 
in Swann and Davis, this result is a grotesque distortion 
of the Swann language and intent, and is without justifica­
tion either on the record or in the findings of the trial 
court upon which the Court of Appeals claimed it relied,

Swann directed school boards and district courts to 
“make every effort to achieve the greatest possible degree 
of actual desegregation. . . . ” 402 U.S., at 26. It specifically 
approved the use of pupil transportation, together with 
other techniques such as pairing, grouping, and grade re­
structuring of schools, as permissible tools to bring about 
the constitutionally required result of actual school de­
segregation, And it suggested, if it did not explicitly state,29 
that valid grounds for objecting to desegregation plans 
using pupil busing exist only when “ the time or distance 
of travel is so great as to either risk the health of the 
children or significantly impinge on the educational proc­
ess.”  402 U.S., at 30-31.

Swann also emphasized that exact racial balance among 
the schools of a desegregating district was not required, 
although efforts should be made to avoid schools of “ sub­
stantially disproportionate” racial composition (when com­
pared to the system-wide population characteristics). 402 
U.S., at 26. Plans proposing the continued existence of 
one-race schools, the Court held, were presumptively in­
sufficient and school officials bear a heavy burden of justi­
fication with respect to such plans. Ibid.

29 We respectfully suggest that the supposed inability of some 
school districts or school officials to grasp the meaning of this 
Court’s directions in Swann is akin to the same parties’ “ inability” 
to comprehend the point of the Brown decisions and their progeny. 
See Northcross v. Board of Edue. of Memphis, 397 IJ.S. 232, 
236-37 (1970) (Mr. Chief Justice Burger, concurring).



18

And while Swann, also cautioned against a mechanical 
approach to desegregation problems, noting for example 
that the continued “ existence of some small number of 
one-race, or virtually one-race, schools within a district 
is not in and of itself the mark of a system that still prac­
tices segregation by law,” ibid., it is very clear that the 
Court did not intend thereby to validate continued massive 
school segregation. Cf. Kelly v. Guinn, 456 F.2d 100, 109- 
10 (9th Cir. 1972), cert, denied, 413 U.S. 919 (1973). The 
Court of Appeals itself recognized in this very case, that

this language,—obviously designed to ensure that 
tolerances are allowed for practical problems of de­
segregation where an otherwise effective plan for dis­
mantlement of the dual system has been adopted— 
was [not] intended to blind the courts to the simple 
reality that a formerly de jure segregated system has 
not dismantled its dual system when 87% of its black 
students still attend one-race schools.

Northcross v. Board of Educ. of Memphis, 466 F.2d 890, 
893 (6th Cir. 1972).

And yet, after the latest round of district court proceed­
ings, in which the court was presented with two alterna­
tive desegregation plans devised by Memphis school ad­
ministrators, one of which would have desegregated all 
public schools and the other one of which leaves 21,000 
black students assigned to completely segregated facilities 
forever, the district court chose the less effective plan with­
out making any of the findings which might conceivably 
justify such a decision under Swanna and Davis.30 Com­
pare Green v. County School Bd., 391 U.S. 430, 439 (1968).

30 See pp. 12-14 supra.



19

We repeat again that nowhere in its opinion does the 
district court make findings (a) that the projected times 
or distances of pupil transportation under any of the plans 
were likely to be injurious to the health or safety of any 
child, of any age; or (b) that the transportation required 
under any of the plans would interfere with the educa­
tional process or with any educational programs of the 
Memphis system; or (c) that the projected cost of the most 
expensive Plan I-III, equivalent to less than 3% of the 
board’s overall budget, was beyond the means of the school 
system. It is true that the district court’s opinion details 
many of the characteristics of the competing plans before 
the court: the projected results of each, the bus rides 
involved, costs, etc. (lla-18a). And we would not dispute 
the veracity of findings to the effect that the plan plain­
tiffs preferred, which would completely desegregate the 
Memphis system, would have involved greater expenditures 
of money and required somewhat longer bus rides for some 
pupils, than the plan which the district court approved. 
But it is critical that the district court specifically and 
deliberately failed to make those factual findings which 
could justify a lesser degree of desegregation than that 
which would be accomplished by the plan plaintiffs 
supported.

The district court’s error is not cured by its lengthy 
summary of the four factors considered by the board’s 
desegregation team to support its preference for Plan II 
(18a-23a), even treating the discussion as “ findings.” We 
argue infra, pp. 30-33, that the district court improperly 
concerned itself with the “white flight” from the system 
which it presumed would occur if Memphis were required 
to desegregate completely. The impropriety of such con­
sideration has been established at least since Cooper v. 
Aaron, 358 U.S. 1 (1958) and was more recently reit­



2 0

erated in Monroe v. Board of Comm’rs, 391 U.S. 450 
(1968) and United States v. Scotland Neck City Bd. of 
Educ., 407 U.S. 484 (1972). Any ruling based even in part 
upon such considerations, which fails to “ achieve the 
greatest possible degree of actual desegregation,” was er­
roneous. The other “ factors” discussed by the district court 
are each likewise insufficient as a matter of law. The team 
sought, for example, to preserve unchanged so much of 
the 1972-73 plan (“ Plan A ” ) as possible (20a). But that 
interim scheme was recognized as insufficient by both the 
district court and the Sixth Circuit in 1972. See 466 F.2d, 
at 895. To accept Plan II because it “ preserves Plan A ” 
is to build into the decree the same ineffectiveness which 
characterized the 1972 plan. And vaguely expressed con­
cerns for “ time and distance” or “ cost”  are simply no sub­
stitute for the necessary findings that Plan T-TTT would 
have been beyond the financial abilities of the district or 
would have endangered the health of students or the main­
tenance of the educational program because of inordi­
nately long bus rides. Thus, while the district court re­
peated some of the contentions upon which the school board 
sought to justify “its preference for an apparently less 
effective method,” Green v. County School Bd., supra, 391 
U.S., at 439, it made no independent findings of its own 
about any objectionable features of either desegregation 
plan presented to it. Its opinion simply fails to elucidate 
any rational basis upon which the court selected one plan 
over another. “ The observations made in the course of 
[the opinion] are not, in any proper sense, findings of 
fact upon the vital issues in the case. Statements of ulti­
mate fact are mingled with arguments and extraneous 
views and advice.” Daniel v. Washington County Bd. of 
Educ., 488 F.2d 82 (5th Cir. 1973). The opinion does not 
set forth grounds for selecting the less effective of the 
plans before the district court; it contains nothing more



2 1

than an unenlightening melange of excerpts from Swann 
and Davis?1

We respectfully sug-gest that the entire “holding” of the 
district court fails even to begin to explain why that court 
declined to order the complete desegregation of the Mem­
phis, Tennessee public schools. Putting aside any other 
measure of effectiveness, one startling difference between 
the plans considered by the district court is the retention, 
in the plan approved by the court, of 25 all-black schools 
enrolling more than 21,000 black students. The proposal 
supported by the plaintiffs would have desegregated each 
one of those schools by pairing or clustering it with other 
Memphis system facilities. The pupil transportation times 
which would have been required thereunder differ with 
respect to each pair or cluster. Yet nowhere does the Dis­
trict Court make the kind of detailed, specific findings 
about each such proposal which we submit is required by 
Swann, Davis, and such lower court decisions as those dis­
cussed in §B, infra pp. 22-24.

The failure of the trial court to make such findings, no 
matter what the nature of the litigation, violates P.E. Civ. 
P. 52(a) and constitutes reversible error. E.g., Mayo v. 
Lakeland Highlands Co., 309 U.S. 310 (1940). Without 
such findings, the judgment of the trial court evidences 
nothing greater than its unreasoned preference for less 
than complete constitutional compliance, exactly what 
Swann was intended to avoid. While that decision re­
affirms the “broad remedial discretion” of the district courts 
in school desegregation cases, it also establishes standards 
for the exercise of that discretion. Although the scope of 31

31 The entire “ holding” of the district court is found infra, pp. 
23a-26a, commencing “ On the basis of the above findings,” and 
concluding that if Plan II meets its projections, “ the system will 
be unitary as that term is used in the controlling opinions.”



appellate review in equity cases may be narrow, Lemon 
v. Kurtzman, 411 U.S. 192, 200 (1973), the very existence 
of discretionary power implies the establishment of stan­
dards by which its appropriate use may be judged. Cf., 
e.g., United States v. Burr, 25 Fed. Gas. 30, 35 (No. 14,692d, 
1807) (Marshall, C .J .); Johnson v. Georgia Highway Ex­
press, Inc., 488 F.2d 714 (5th Cir. 1974). Such standards 
were announced by this Court in Swomrn, and Davis. But 
the failure of the district court to elucidate the specific facts 
leading to its determination to select the less effective plan 
leaves totally unsupported its legal conclusion that its de­
cree will create a “unitary school system” (26a).

B. The Muling Below Conflicts With Decisions of Other 
Courts o f Appeals Requiring Such Findings.

The decision below is typical of the Sixth Circuit’s brief, 
per curiam opinions (which often rely upon F.K.. Civ. P. 
52(a)) sanctioning continued segregation of large numbers 
of students by district court decrees designed to end the 
dual system. See, e.g., Robinson v. Shelby County Bd. of 
Educ., 467 F.2d 1187 (6th Cir. 1972); Goss v. Board of 
Educ. of Knoxville, 482 F.2d 1044 (6th Cir. 1973), cert, 
denied, 42 U.S.L.W. 3423 (Jan. 21, 1974); Mapp v. Board 
of Educ. of Chattanooga, 477 F.2d 851 (6th Cir.), cert, 
denied, 42 U.S.L.W. 3290 (November 12, 1973). Other 
Courts of Appeals, however, have required that any de­
partures from thorough, system-wide desegregation be 
rigorously justified by explicit factual findings. For ex­
ample, in Adams v. School Dist. No. 5, Orangeburg, 444 
F.2d 99 (4th Cir. 1471), several school desegregation ac­
tions were remanded to the district courts with these in­
structions :

If the district court approves a plan achieving less ac­
tual desegregation than would be achieved under an



23

alternate proposed plan it shall find facts that are 
thought to make impracticable the achieving of a 
greater degree of integration, especially if there re­
main any schools all or predominantly of one race.

Similarly, in Thompson v. School Bd. of Newport News, 
465 F.2d 83, 86, 89 (4th Cir. 1972), cert, denied, 413 U.S. 
920 (1973), where the district court had accepted a plan 
which completely failed to desegregate the first three 
grades of the system, because

. . . [w]hile it is not supported by anj  ̂ testimony in 
this case, I am old-fashioned enough to think that 
[neighborhood schools are educationally important for 
children starting school],

the Court of Appeals remanded the case, stating that

[while] the assignment of the primary grades to neigh­
borhood schools is not per se unacceptable, such as­
signment must rest on specific findings of fact estab­
lishing that, on account of ages of the pupils and diffi­
culties of transportation, no other plan, affording 
greater integration is practical. And, where there is 
insufficient basis for such conclusion, zoning is im­
permissible.

In the Fifth Circuit, as well, desegregation decrees re­
ceive careful scrutiny if they leave one-race schools. See, 
e.g., Bivins v. Board of Educ. of Bibb County, 460 F.2d 
430 (5th Cir. 1972); Boykins v. Fairfield City Bd. of Educ., 
457 F.2d 1091 (5th Cir. 1972). And the Fifth Circuit has 
explicitly recognized the importance of factual findings 
to the appellate review process:

. . . The law requires the court to implement the most 
effective plan for unitizing a school system. Wright



24

v. Council of the City of Emporia, 1972, 407 U.S. 451, 
92 S.Ct. 2196, 33 L.Ed.2d 51. Although we are hesitant, 
from our appellate detachment, to require a plan which 
has been rejected by the District Court, even though 
we have repeatedly ordered the implementation of 
HEW plans immediately when less-than-effective al­
ternative plans were adopted by a low~er court, e.g., 
Singleton v. Jackson Municipal Separate School Dis­
trict, 5 Cir., 1970, 426 F.2d 1364, 1369 (Singleton IV ) ; 
Banks v. Claiborne Parish School Board, 5 Cir., 1970, 
425 F.2d 1040, this is one in which we think it appro­
priate to direct the District Court after such factual 
hearings and data accumulation as needed to reassess 
the current factual situation in Rankin County and 
report to this Court by November 1, 1973, what mea­
sures it believes should be adopted to rectify the prob­
lems. The Court shall furnish explicit reasons for its 
actions and shall enter detailed findings of fact and 
conclusions of law with respect to the assignment of 
pupils in Rankin County.

Adams v. Rankin County Bd. of Educ., 485 F.2d 324 (5th 
Cir. 1973). Soo, too, related decisions such as those to 
close black schools must be justified by factual findings 
at the trial court level. E.g., Gordon v. Jefferson Davis 
Parish School Bd., 446 F.2d 266 (5th Cir. 1971); Haney 
v. County Bd. of Educ., 429 F.2d 364, 372 (8th Cir. 1970).

Review is merited to resolve the conflict among the 
Courts of Appeals in their approach to school desegrega­
tion cases, which has had (and can only have) the effect 
of making the standards and results under the Fourteenth 
Amendment different, in Tennessee, Kentucky, Ohio and 
Michigan, from those declared by this Court and applied 
by other Courts of Appeals.



25

The error of the district court in this case is manifest; 
the incompatability of its opinion with the approach to 
school desegregation cases enunciated in Swam  and fol­
lowed by other Courts of Appeals is apparent. The harsh­
ness of the decree, assigning 21,000 black students to all- 
black schools, is striking. Such results, halting or even 
undoing the progress which has been steadily made since 
Brown, may become all too common if district courts need 
do no more to support their decisions than to announce 
that the plans they select comply with the Fourteenth 
Amendment, and Courts of Appeals are thereby rendered 
incapable of intelligently reviewing the exercise of the 
district courts’ remedial discretion.

This case, involving the twelfth largest school system in 
the nation, and one which has been so long litigated, pro­
vides an extremely appropriate opportunity for this Court, 
through the exercise of its certiorari jurisdiction, to thwart 
any such trend while finally according constitutional rights 
to Memphis’ black children.

II.

The Court O f Appeals Never Measured The District 
Court’ s Decree Against The Requirements O f Swann 
Because It Erroneously Treated The District Court’ s 
Entire Decision As A Factual Finding Which Was Pre­
sumptively Correct Under F.R. Civ. P. 5 2 (a ) .

In its May 17,1973 memorandum decision, the trial court 
concluded that “ if the plans are effective [as projected], 
the system will be unitary as the term is used in the con­
trolling opinions [of the Supreme Court].” As noted in 
the Statement, supra, the Sixth Circuit rested its affirmance 
of that decision upon F.R. Civ. P. 52(a) :



2 6

The District Court, sitting as trier of fact, reviewed 
the merits of the alternative plans submitted by appel­
lee before reaching its decision. That decision cannot 
be set aside unless clearly erroneous. Rule 52(a) Fed. 
R. Civ. P. . . . We conclude that the District Court’s 
choice of Plan II was not clearly erroneous and must, 
therefore, be upheld.

(4a) (emphasis supplied). As described in the Statement, 
however, the only finding made by the trial court which 
related to matters as to which the parties were in dispute, 
was its totally conclusory finding that implementation of 
Plan II will provide for a unitary school system in Mem­
phis. At best, that is a finding of “ultimate fact,” resulting 
from the district court’s application of legal standards to 
undisputed facts,32 which should have been given plenary 
review by the Court of Appeals free of any Rule 52 
constraints.33

The Court of Appeals treated the district court’s bald 
legal conclusion as to the constitutional sufficiency of Plan 
II as a “ finding of fact” to be overturned only if “ clearly

32 Baumgartner v. United States, 322 U.S. 665, 671 (1944).
33 The Court of Appeals failed even to make a convincing case 

for affirmance under Rule 52. It does not discuss any of the 
evidence upon which it bases its summary holding that “we do not 
find the conclusions reached [by the district court] to be clearly 
erroneous” (6a). To the extent that the Court of Appeals believed 
it was doing so in this passage,

The clearest insight into the weight the District Court gave 
to the practical considerations recommended by Swan [sic] 
and Davis is found in the following passage from the Memo­
randum Decision: [quotation from district court opinion
omitted]

(5a) it failed to realize that the passage in the district court’s 
opinion, which it then quoted, described the team’s reasons for 
preferring Plan II rather than indicated the district court’s own 
holding.



27

erroneous,” In so doing, it overlooked this Court’s hold­
ings as to the proper application of the “ clearly erroneous” 
standard. Rule 52(a) merely adopted prevailing federal 
equity practice under which

the findings of the trial court, when dependent upon 
oral testimony where the candor and credibility of the 
witnesses would best be judged, had great weight with 
the appellate court. The findings were never con­
clusive, however.

United States v. United States Gypsum Co., 333 U.8. 364, 
395 (1948). The rule does not apply to review of cases in 
which the evidence is partly oral and partly documentary 
or undisputed. See United States v. Parke Davis & Co., 
362 U.S. 29, 43-44 (1960); Great ASP Tea Co. v. Super­
market Equipment Gorp., 340 U.S. 147, 153-154 (1950); 
of. Orvis v. Higgins, 180 F.2d 537 (2d Cir. 1950), cert, 
denied, 340 U.S. 810 (1951). In such cases the appellate 
court’s review is plenary and it may itself apply the cor­
rect law to those facts not subject to credibility deter­
minations.

This case was essentially a “paper case,” 84 as the Court 
of Appeals noted:

The evidence consisted mainly of projected attendance, 
transportation and cost figures for the various plans, 
and the testimony of team members and other experts. 34

34 See United States v. General Motors Gorp., 384 U.S. 127, 142 
n. 16 (1966), where this Court stated:

. . . the trial court’s customary opportunity to evaluate the 
demeanor and thus the credibility of the witnesses, which is 
the rationale behind Rule 52(a) . . . plays only a restricted 
role here. This was essentially a paper case. It did not unfold 
by the testimony of “ live” witnesses.



28

(4a). See pp. 10-11 supra. As set forth above, there is no 
dispute as to the matter to which the witnesses addressed 
themselves in their testimony, i.e., the fact that complete 
desegregation of the Memphis schools would require some­
what greater effort and expense than would the partial 
desegregation accomplished by Plan II. Thus, the Court 
of Appeals was free to draw its own inferences and con­
clusions from the undisputed evidence as to which de­
segregation plan offers “ the greatest possible degree of 
actual desegregationindeed, it was obligated to do so. 
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 
(1969). Given the state of the evidence, establishing with­
out dispute that Plan I-III can be implemented in Mem­
phis, the Court of Appeals would have had to reverse the 
judgment of the district court if it had made that inquiry.

Treatment of the district court’s choice of plan as a 
factual finding,35 36 however, effectively denied plaintiffs the 
opportunity to have the Court of Appeals pass upon the 
district court’s interpretation of Swann and Davis.36

The Court of Appeals’ affirmance of the district court, 
therefore, even though it purported to rely primarily upon 
factual findings of the trial judge, does not insulate the 
merits of this case from review here. As Mr. Justice Frank­
furter put it, in United States v. John J. Felin and Co., 334 
U.S. 624, 639-40' (1948) :

35 In Swann terms, the effect of the Court of Appeals’ approach 
was to convert the district court’s legal conclusion that Plan II 
meets the requirements of the Constitution into a factual determina­
tion that the additional transportation times and distances under 
Plan I-III would he harmful to health, etc. But that is not what 
the district court found at all. See pp. 11-14 supra. The Court 
of Appeals’ error is akin to that in 1970, see Northcross v. Board 
of Educ. of Memphis, 397 IJ.S. 232, 235 (1970).

36 See note 33 supra.



29

Where the conclusion is a “ composite of fact and law” ,
. . . this Court may certainly hold that as a matter of 
law the findings are erroneous. . . . Similarly findings 
concurred in by two courts do not control the decision 
here where “ facts and their constitutional significance 
are too closely connected” and “ the standards and the 
ultimate conclusion involve questions of law insepa­
rable from the particular facts to which they are 
applied.”

Accord, Neil v. Biggers, 409 U.S. 188,193 n.3 (1972); Keyes 
v. School Dist. No. 1, Denver, 413 U.S. 189, 198 n.9 (1973). 
Upon review of this case, therefore, this Court is free to 
look (as the Court of Appeals should have looked) to the 
record

not to contradict the trial court’s findings of fact, as 
distinguished from its conclusory “ findings,” but to 
supplement the court’s factual findings and to assist 
. . .  in determining whether they support the court’s 
ultimate legal conclusion . . .s7

that a unitary school system exists where one-third of all 
black students, numbering more than 21,000 children, are 
segregated in 25 all-black Memphis, Tennessee schools. 37

37 United States v. General Motors Corp., supra, 384 U.S., at 142 
n. 16.



30

III.

The Decisions Below Were Based Upon Constitu­
tionally Impermissible Considerations Of White Com­
munity Hostility To Desegregation.

Throughout the district court’s opinion, characterized as 
“thoughtful and thorough” by the Court of Appeals ( a),
runs the theme of white resistance to constitutionally re­
quired desegregation in Memphis. Virtually the only “ fac­
tual findings” made by the district court concern the re­
lationship between the desegregation previously imple­
mented in Memphis (Plan A) and the withdrawal of white 
students from the city’s public schools (2Qa-23a).38 The 
point is made rather archly by the district court’s observa­
tion—unsupported by the facts of record 39 that

a system cannot effectively desegregate by the practice 
of involuntarily assigning members of the opposite 
race to certain schools if there are not sufficient mem­
bers of the white race available to assign.

38 As we observed earlier (see note 25 supra), the evidence 
refutes any interpretation of the district court’s finding as being 
that Plan A resulted in the withdrawal of white students because 
of time and distance, rather than racial, considerations. The district 
court thus had no basis upon which to predict that any additional 
white withdrawal following the implementation of further de­
segregation would be greater if plans involving more transporta­
tion, rather than less, were selected. The issue of concern to the 
district court was that presented by the school board and the 
team: white resistance to desegregation, and not to particular 
times and distances.
_39 Projections of the anticipated further white withdrawal under 

either Plan II or Plan I-III were prepared by the school system’s 
research department and were introduced into the record when 
the defined satellite zones (see notes 13, 25 supra) were proposed 
for Plan II. These indicated that under either plan, there would 
be “sufficient members of the white race” to desegregate the schools. 
In fact, Plan I-III was projected to lead to the withdrawal of only 
1400 more white students than Plan II— although the gain was 
achieved at the expense of 21,000 segregated black children. (This 
year’s attendance data indicates the hoard’s projection of white 
withdrawal under Plan II was at least 95% accurate.)



31

(21a). The district court seems to have overlooked the 
fact, however, that a system cannot effectively desegregate 
by rejecting a feasible, comprehensive plan and making 
the conscious determination to leave 21,000 black students 
in all-black schools.40 This unnecessary compromising of 
plaintiffs’ constitutional rights in the name of “practical 
recognition of white sentiment,” concurred in by the Court 
of Appeals, is but the latest in the long series of half- 
measures of judicial relief which have characterized this 
protracted litigation. It recalls only too well the words of 
John W. Davis before this Court in 1953: “ . . . [T]he best 
is often the enemy of the good.” L. Friedman, ed., A rgu­
m e n t  217 (1969). That advice was rejected then, and only 
by affirmatively rejecting it again may the integrity of the 
Fourteenth Amendment be maintained.

The unconditional illegality of this consideration as a 
criterion for selection among competing desegregation 
plans has been long established. E.g., Cooper v. Aaron, 
358 U.S. 1 (1958); Monroe v. Board of Comm’rs, 391 U.S. 
450 (1968); cf. Buchanan v. Warley, 245 U.S. 60 (1917). 
Just two Terms ago, the point was eloquently reiterated by 
this Court in United States v. Scotland Neck City Bd. of 
Educ., 407 U.S. 484, 490-91 (1972):

The primary argument made by the respondents in 
support of Chapter 31 is that the separation of the 
Scotland Neck schools from those of Halifax County 
was necessary to avoid “ white flight”  by Scotland Neck 
residents into private schools that would follow com­
plete dismantling of the dual school system. Supple­

40 To paraphrase slightly the Court’s opinion in Wright v. Council 
of the City of Emporia, 407 U.S. 451, 468 (1972) :

The District Court, with its responsibility to provide an 
effective remedy for segregation in the entire [city] system, 
could not properly allow the city to make . . . part of that 
system more attractive where such a result would be accom­
plished at the expense of the children remaining in the [other, 
all-black part of the system].



32

mental affidavits were submitted to the Court of Ap­
peals documenting the degree to which the system has 
undergone a loss of students since the unitary school 
plan took effect in the fall of 1970 [footnote omitted]. 
But while this development may be cause for deep con­
cern to the respondents, it cannot, as the Court of Ap­
peals recognized, be accepted as a reason for achieving 
anything less than complete uprooting of the dual pub­
lic school system. See Monroe v. Board of Commis­
sioners, 391 U.S. 450, 459, 20 L.Ed.2d 733, 739, 88 
S.Ct. 1700.

Rather than incorporating the racial argument into its 
treatment of the case, the district court should have realized 
that this explicitly racial justification put forward by the 
school board required it to give even less credence to the 
weak “ educational” factors voiced to support the board’s 
preferred plan:

. . . And where a school board offers non-racial justi­
fications for a plan that is less effective than other 
alternatives for dismantling a dual school system, a 
demonstrated racial purpose may be taken into con­
sideration in determining the weight to be given to the 
proffered justification. Cf. Green, supra, at 439, 20 
L.ed.2d at 724.

Wright v. Council of the City of Emporia, 407 U.S. 451, 
461 (1972).41

41 This is not to suggest that a district court may never take 
“white flight” into account in picking among profferred desegrega­
tion remedies in a school case. It is impermissible as a matter of 
law to seek to justify otherwise alterable segregation by predictions 
of white flight. On the other hand, given two desegregation plans 
effective “ on paper,”  but one of which can predictably be anti­
cipated to result in greater white flight than the other, a court 
could properly select the plan to minimize it. See Wright v. 
Council of the City of Emporia, supra, 407 U.S., at 464. Thus, 
had the board’s statistical studies shown that Plan III would for 
some reason result in greater flight than an alternative plan which



33

While it may seem somewhat incredible that, after the 
clear message of Cooper, Monroe and Scotland Neck, courts 
of the United States are continuing to act upon racially 
based white flight arguments, that is one of the explicit 
grounds of decision below. Quite apart from the enormous 
numbers of black students who stand to lose, forever, their 
chance to enjoy the promise of Brown, then, this conscious 
abandonment of the Fourteenth Amendment to popular 
hostility requires this Court’s corrective mandate.

CONCLUSION
For the foregoing reasons, petitioners respectfully pray 

that the writ of certiorari be granted.

Respectfully submitted,

Louis R. L ucas 
W illiam  E. Caldw ell  
E l ija h  A. N oel, J e .

Ratner, Sugarmon and Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

J ack  Greenberg 
J am es  M. N abrit, III 
N orman J . Ch a c h k in  

10 Columbus Circle 
New York, New York 10019 

Attorneys for Petitioners
Of counsel:

A rt h u r  C. M cF arland 
10 Columbus Circle 
New York, New York 10019

also desegregated all schools effectively (see notes 25, 39, supra), 
the district court probably would have abused its discretion in 
failing to require adoption of the plan which both desegregated the 
system and minimized flight.



APPENDIX



la

O p in io n  o f  the C ourt o f  A p p eals

Nos. 73-1667 and 73-1954 

U nited  S tates C ourt of A ppeals 

F or th e  S ix t h  C ircuit

D eborah  A . N orthcross, et al .,

Plaintiffs-Appellants, 
v.

T he  B oard of E ducation  of the  
M em ph is  C it y  S chools, et a l ., City  of M e m ph is , et a l .,

Defendants-Appellees.

D eborah A . N orthcross, et al .,

Plaintiff s-Appellants,
v .

T he  B oard of E ducation  of th e  
M em ph is  C it y  S chools, et al .,

Defendants-Appellees.

a ppea l  from  t h e  u n ited  states district court for th e
WESTERN DISTRICT OF TENNESSEE

Decided and filed December 4, 1973

Before: W eick , Celebrezze and P eck , Circuit Judges.

Per Curiam. This appeal was perfected from the Memo­
randum Decision and order handed down by the United



2a

States District Court for the Western District of Ten­
nessee on May 3, 1973, ordering the implementation of a 
plan intended to complete the desegregation process in 
Memphis. Appellants assert that the plan approved by 
the District Court does not achieve the degree of deseg­
regation demanded by the Constitution and recent Supreme 
Court cases.

The history of this case is long and involved and need 
not be recounted here. For its history see the opinions 
of this Court in Northeross v. Board of Education of 
Memphis City Schools, 302 F.2d 618 (6th Cir. 1962); 
333 F.2d 661 (6th Cir. 1964); 444 F.2d 1179 (6th Cir. 
1971) ; 466 F.2d 890 (6th Cir. 1972). In the latter opinion 
we ordered the implementation of an interim desegrega­
tion plan and directed the District Court to “prepare a 
definite timetable providing for the establishment of a 
fully unitary school system. . . .” Norther oss, supra, 466 
F.2d at 895. On remand, the District Court ordered that 
the interim plan, Plan A, be put into effect for the Spring 
semester of 1973. Appellee carried out this order, neces­
sitating extensive student and faculty reassignments and 
equipment transfers. In addition, the District Court di­
rected the Board of Education to prepare a further plan 
for desegregation designed to establish a fully unitary 
system.

The appellee created a bi-racial “ Team” consisting of 
staff members to handle the task of drawing a new plan. 
Instead of proposing a single solution, the Team sub­
mitted a series of alternative plans to the District Court. 
The trial court conducted hearing on the various proposals, 
selected one of the Team’s plans, and ordered its im­
plementation for the Fall semester of 1973. Expressing 
his desire for an end to this litigation, the District Judge

Opinion of the Court of Appeals



designated the effort “Plan Z.” It is from the decision to 
adopt Plan Z that appellants bring this appeal.

The appellee’s desegregation Team submitted two sets 
of alternative plans. Plan I and Plan III constitute one 
total plan, and will hereinafter be referred to as Plan I-III. 
Plan II (elementary) and Plan II (secondary) taken to­
gether make up one plan, and will hereinafter be simply 
Plan II. In addition, appellants submitted a modified ver­
sion of Plan III, and the Team suggested a possible varia­
tion of Plan II (elementary).

At the elementary level Plan I-III would provide for 
complete desegregation of every attendance unit. Plan II 
integrates all but nineteen all-black or predominantly 
black units, but includes no all-white units. Plan I-III 
would require substantially greater times and distances of 
transportation than Plan II. The District Court chose 
Plan II, redesignating it “Plan Z,” as hereinabove men­
tioned.

Plan I-III would desegregate all junior and senior high 
school units. Plan II leaves two all-black high schools and 
four all-black junior high schools. Once again, Plan I-III 
would involve the greater degree of transportation. The 
District Court opted for Plan II at this level.

It is estimated, based on projected figures,1 that Plan II 
will enable eighty-three percent of the Memphis public 
school students to attend school in a desegregated situa­
tion. To achieve this result, over 38,000 children will be 
bused to school. (23,000 of the 38,000 bused students are 
in the elementary schools.) Forty-four percent of the 
bused students will spend between 31-45 minutes in tran- 1

Opinion of the Court of Appeals

1 Projections were based on the attendance figures for the Spring 
semester of 1973 when the system was operating under interim 
Plan A. At that time there were 131,268 students in the system.



4a

sit each way, but no ride will be over 45 minutes in length.2 3 *
Appellants point out that Plan II leaves a number of 

black students in all-black or predominantly black schools, 
and complain that some of the very schools that were all­
black at the inception of this litigation in 1960 will remain 
so under Plan II. The solution urged both here and below 
by appellants is the adoption of Plan I-III. Under this 
proposal ninety-seven percent of the students would be 
placed in desegregated units. This would require the busing 
of 48,000 children, the great majority of whom would ride 
for 31-45 minutes each way, although 9,700 would have to 
travel 46-60 minutes.8 The greater number of those in­
volved in the 46-60 minute trips would be elementary stu­
dents.

The District Court, sitting as trier of fact, reviewed 
the merits of the alternative plans submitted by appellee 
before reaching its decision. That decision cannot be set 
aside unless clearly erroneous. Rule 52(a) Fed. R. Civ. P. 
In Goss v. Board of Education of Knoxville, 483 F.2d 1044, 
1047 (6th Cir. 1973), this Court, faced with a similar ques­
tion, stated that “An appellate court simply cannot violate 
this settled principle of our jurisprudence, no matter how 
desirable a particular result may appear to be.”  We con­
clude that the District Court’s choice of Plan II was not 
clearly erroneous and must, therefore, be upheld.

The evidence consisted mainly of projected attendance, 
transportation and cost figures for the various plans, and 
the testimony of Team members and other experts. The

2 The Team also worked out an alternative bus route system for 
both plans relying primarily on the use of expressways. The ex­
pressways result in a decrease in the transportation time for some 
students, although it has less effect on Plan II than on Plan I-III.

3 Using the expressways only 5,347 students would ride for 46-60
minutes. See footnote 2, supra.

Opinion of the Court of Appeals



5a

basic figures for the different plans have been discussed 
heretofore. A review of the testimony reveals that for a 
variety of reasons a majority of the Team favored the 
adoption of Plan II. The lone psychological expert was 
of the opinion that a shortening of the times and distances 
of transportation would inure to the benefit of many school 
children, especially the younger ones. Plan II was also 
recommended by the school staff and the Board of Educa­
tion.

The District Court relied heavily on a phrase from 
Davis v. Board of School Commissioners of Mobile, 402 
U.8. 33, 37 (1971). That phrase directs that district courts 
“make every effort to achieve the greatest possible degree 
of actual desegregation, taking into account the prac­
ticalities of the situation.”  (Emphasis added.) To dis­
cover what constituted a “practicality,” the District Court 
referred to Swann v. Charlotte-Mecklenburg Board of Edu­
cation, 402 U.8. 1 (1971).

The practical considerations set forth in Swann which in­
fluenced the District Court’s decision in this case are as 
follows: First, the limited usefulness of racial quota 
ratios; secondly, the necessity of tolerating some one-race 
schools because minority groups concentrate in urban 
areas; thirdly, the logistical problems inherent in remedial 
alteration of attendance zones; and lastly, the limitations 
on travel that must be considered when transportation 
remedies are employed.

The clearest insight into the weight that the District 
Court gave to the practical considerations recommended by 
Swann and Davis is found in the following passage from 
the Memorandum Decision:

“ The lesser degree of desegregation in combined 
Plan II is based primarily upon four factors pertain-

Opinion of the Court of Appeals



6a

Opinion of the Court of Appeals

ing to effectiveness, feasability and pedigogical sound­
ness. Those factors are time and distance traveled on 
buses, cost of transportation, preservation of deseg­
regation already accomplished, and adaptability.”

The District Court’s analysis of the proposed alterna­
tives was both thoughtful and thorough, and we do not 
find the conclusions reached to be clearly erroneous. As 
we stated in Goss, supra, at 1047, “The experienced Dis­
trict Judge who has lived with this case from its inception 
analyzed the evidence in great detail. His findings are 
supported by substantial evidence and are not clearly er­
roneous.” The above statement has equal validity here. 
The May 3, 1973 Memorandum Decision of the District 
Court ordering the implementation of Plan II and desig­
nated Plan Z is hereby affirmed.

No costs are taxed, and each party will bear their own 
costs on the appeal.



7a

I n  th e  U nited  S tates D istrict C ourt 

F or th e  W estern  D istrict oe T ennessee 

W estern  D ivision  

N o. 3931-Civil

O p in io n  o f  the D istrict C ourt

D eborah A. N orthcross, et al.,

vs.
Plaintiffs,

B oard oe E ducation  oe th e  M em ph is  C ity  S chools, et al.,

Defendants.

M emorandum  D ecision On 
T im e  T able F or U n itary  P lan

This ruling pertains to the additional instruction of the 
Court of Appeals for the Sixth Circuit set forth in its most 
recent remand opinion in this much litigated case, filed 
originally in 1960.

On August 29, 1972, the Court of Appeals filed the deci­
sion in which it affirmed this Court’s order of April 20, 
1972, wherein this Court ordered that the defendant system 
implement the desegregation plan known as Plan A, com­
mencing with the opening of the school year 1972-73. Plan 
A  called for the use of the transportation of pupils as a 
means of desegregation, but it did not complete the task of 
establishing a unitary system as required by the constitu­
tion. Consequently, the Court of Appeals added an addi­
tional instruction to its ruling affirming this Court’s ap­
proval of Plan A. That instruction directed this Court “ to



8a

prepare a definite timetable providing for the establish­
ment of a fully unitary school system in the minimum time 
required to devise and implement the necessary desegrega­
tion plan.” 466 F2d 890, 895. At that time the Court of 
Appeals also dissolved a stay of the Court’s April 20, 1972 
decision which the Court of Appeals had entered pending 
its ruling on an expedited appeal.

Regrettably, the Court, of Appeals’ ruling was filed one 
day after the school year had started without the imple­
mentation of Plan A. Because the defendants had dis­
continued preparations for implementation of Plan A  dur­
ing the period of the stay, and further because the school 
year had started, it was necessary for this Court to conduct 
a hearing on what different time the plan should be imple­
mented in the light of the changed circumstances. This 
hearing resulted in this Court’s ruling that Plan A should 
be implemented as modified at the beginning of the second 
semester of the 1972-73 school year (Jan. 1973). Memo. 
Dec. in this cause filed 9-29-72.

On October 27, 1972, a hearing was held in this cause 
which addressed itself to the issue of how and when this 
Court should comply with the “ additional instruction” of 
the Court of Appeals. On November 15, 1972, this Court 
filed its decision on that topic. In that ruling the defendant 
Board of Education was directed to prepare a pupil locator 
map or its equivalent and to appoint persons charged with 
the responsibility of preparing a plan for further desegre­
gation as required by the Court of Appeals remand. School 
boards, who have previously maintained de jure dual sys­
tems, are clearly required to present a plan to rid the sys­
tem of its former constitutional infirmities. Therefore, this 
Court directed the defendant Board to require its desig­
nated team to report its progress to the Board at least

Opinion of the District Court



9a

semi-monthly. Additionally, the defendant Board was di­
rected to report periodically to the Court on the progress 
being made in furtherance of the Court of Appeals direc­
tive. The Board designated a biracial team composed of 
staff personnel of the Board.1

The team undertook its complex assignment, and reports 
were made to the Board and to the Court as contemplated. 
However, the results of the team’s preliminary efforts indi­
cated a method that contemplated changing the grade 
structure of certain junior and senior high schools. This 
meant effectively closing some long established high schools. 
In some cases the team paired separate black and white 
7th through 12th grade units by assigning the 7th through 
9th grade pupils from both schools to one unit and the 10th 
through 12th grade students to the other. This approach 
met with dissatisfaction from some members of the Board, 
both black and white, and prompted certain Board mem­
bers to request that the team take different approaches 
to solving the desegregation problem. Some Board mem­
bers became active and worked with the team in the prep­
aration of alternate plans to the end that some of the 
alternate plans are known by the surname of the Board 
member who suggested that basic plan.

This process resulted in alternate proposals for the 
Board to consider as a means of implementing the Court 
of Appeals directive. Five plans were submitted because 
the team prepared separate plans for elementary schools 
and secondary schools (junior and senior high). These

1 The team consisted of the Director of Research and Planning 
of the system, a principal of a black junior high school, a principal 
of a desegregated high school, who was relieved of his duties as 
principal in order to devote full time to the team, the Director of 
Race Relations of the system and a Planning Assistant in the 
Department of Research and Planning.

Opinion of the District Court



10a

plans are basically two separate elementary through high 
school plans with an alternative for the elementary schools, 
which is adaptable to either separate secondary plan. The 
separate complete plans were designated secondary Plan I, 
which complements elementary Plan III, and secondary 
Plan II which complements elementary Plan II. The third 
alternate elementary plan is known as the Team Plan.

On March 9,1973, the Board considered the various plans. 
H.E. 40. The Board was unable to arrive at a majority 
vote on any combination of the plans before it. This re­
sulted in a resolution in which a majority voted to submit 
all plans to the Court with a suggestion that secondary 
Plan II and elementary Plan II would be the “ least dis­
ruptive and least expensive plan” that would meet the re­
quirements of the constitution.2

After the above action by the Board, the Court required 
the parties to file position pleadings in which each set of 
parties was to indicate its position with regard to the ac­
tion of the Board to the end that a hearing could be con­
ducted on the objections and the supportive positions of the 
parties to the respective plans. This resulted in the plain­
tiffs supporting secondary Plan I with modifications and 
elementary Plan III as presented, and the Board support­
ing secondary Plan II and elementary Plan II as presented.

On April 18, 1973, what proved to be a three day hearing 
was commenced on the conflicting positions of the parties, 
and this decision constitutes the findings of fact and con­
clusions of law on that hearing and the record in the case.

Opinion of the District Court

2 It should be noted that the phase of H.E. 40 which resolved 
that the satellite zones would be chosen by a random selection 
method, was later rescinded so that the satellite zones would be 
established on a geographic basis.



11a

Opinion of the District Court 

Choice of P lans

The problem to be overcome in this system is the exces­
sive number of one-race schools. As the Court of Appeals 
noted in affirming this Court, this system continued de jure 
segregation through a pattern of school location decisions, 
selective construction and systematic over and under utili­
zation of school buildings. In the 1971-72 school year (pre 
Plan A) 79% of the schools had essentially monolithic ra­
cial structures, and 87% of the black students still attended 
one-race schools. 466 F2d 893.

As heretofore noted in earlier rulings, the City of Mem­
phis has limiting boundaries on the west in the form of the 
Mississippi River and on the south in the form of the 
Mississippi-Tennessee state boundary line. At the present 
time the city is approximately 250 square miles in size.

Plan A, as implemented, was a means of desegregation 
employing the pairing and clustering of schools having con­
tiguous zones and requiring minimal transportation. The 
plans presently before the Court, therefore, include the 
difficult task of desegregating non-contiguous and some­
times remote school zones. Plan A used the easier mid-city 
pairings; therefore, the remaining task includes trying to 
transfer pupils living in opposite extremes of the city. A 
substantial number of the white students live in the eastern 
portion of the city, and a substantial number of the black 
students live in the western portion of the city in very 
heavy concentrations.

The details of the two secondary plans and the three 
elementary plans prepared by the staff team are set forth 
in Hearing Exhibit 1, which is a 125 page document with 
an 11 page appendix. The team members have undertaken 
to desegregate the respective schools by assigning various



12a

numbers of students from schools of a predominate race 
to schools with an opposite predominate race by the use of 
satellite zones and boundary changes. The satellite zone 
boundaries were not definitely established pending a deter­
mination of the choice of plans after the hearing.

The pupil locator map and computer printout was based 
upon pre-Plan A  attendance figures (December 15, 1972). 
Therefore, the proposed satellite zones and changes do not 
take into account the 7500 to 8000 pupils who left the system 
after Plan A was implemented (January 24, 1973). The 
proof establishes that a sizeable number of those pupils 
left the system due to the implementation of Plan A, par­
ticularly in schools where white pupils were assigned to 
certain former black schools. H.E. 29. However, some of 
this decrease in enrollment also can be attributed to normal 
attrition during the school year from dropouts and other 
causes. There is also proof from the Superintendent that 
some of the pupils have returned to the system in later en­
rollment periods. However, no figures are available to show 
exactly how many.

Hearing Exhibit 1 also contains Time and Distance 
Analyses for the estimated necessary bus transportation 
and its cost estimates. In this regard, the bus transporta­
tion information is more reliable than the estimates made 
in the past concerning this system because the defendant 
system now has actual experience based upon the opera­
tion under Plan A. However, some cost estimates for long 
distance transportation are subject to further negotiations 
with the contractor who furnishes the buses.

Hearing Exhibit 1 also contains some separate sections 
devoted to the Raleigh Area Addenda. This separate con­
sideration of the “Raleigh Area” pertains to a section of 
the City of Memphis and the County of Shelby which was

Opinion of the District Court



13a

planned for annexation into the City of Memphis and there­
fore within the jurisdiction of the defendant system.

In furtherance of a practice followed in recent years, the 
City of Memphis undertook to annex a portion of Shelby 
County effective December 31, 1972. This portion was lo­
cated to the north of a central portion of the former city 
limits. It included the community known as Raleigh. In 
prior years when an annexation was made effective on 
December 31, by mutual agreement of the two public school 
systems, the County Board of Education continued to oper­
ate the schools within the annexed area for the remainder 
of that school year and the defendant City Board took over 
the schools at the commencement of the next school year. 
However, the entire proposed annexation of the Raleigh 
Area was not accomplished because litigation was initiated 
in the state courts by some residents living in the proposed 
area which resulted in the annexation of approximately 
two-thirds of the area pending the ultimate outcome of the 
litigation. This created problems for the Shelby County 
and City of Memphis Boards of Education because the lo­
cation of the schools in the proposed area were so arranged 
that some of the students living in the area actually an­
nexed were assigned to schools close to, but actually located 
in the area not annexed. In an effort to resolve these prob­
lems, the Shelby County and City of Memphis Boards of 
Education entered into an agreement pertaining to the 
students and the schools within the problem area. H. E. 1, 
page 41.

Under this agreement the defendant City Board will op­
erate the Brownsville Elementary School actually located 
just outside the corporate limits of the city, and other 
specific student assignment plans and options are provided

Opinion of the District Court



14a

for in order to educate the students in the Raleigh area 
pending the outcome of the annexation litigation.

Due to the time at which this problem arose, the Raleigh 
Area phase of the defendant’s desegregation plans was 
prepared separately from the basic city plans. The pro­
posal of the team which was adaptable to Plan II for the 
remainder of the city is set forth on page 37 of Hearing 
Exhibit 1, and the proposal of the team which is adaptable 
to secondary Plan I and elementary Plan III is set forth 
in hearing Exhibit 1-A.3 On motion of the plaintiffs the 
Shelby County Board of Education was made a party to 
this case for the limited purpose of considering the por­
tions of the City Board plans which effect the Raleigh 
Area.4

Although the addenda to the basic plans pertaining to 
the Raleigh Area are complete with regard to students to 
be assigned and the projected degree of desegregation in 
each school affected, some of the more specific factual proof 
is not established in the record.

The proof reflects an additional alternative proposal for 
the Raleigh Area. H. E. 21. However, this proposal is con­
tingent upon the completed annexation of the total pro­
posed area or an alteration of the agreement between the 
County and City Boards so that schools presently under 
the jurisdiction and operational control of the County 
Board will be available for pairing or student transferring 
in furtherance of the City Board’s desegregation plan. Be­

8 Caution must be exercised in considering the exhibits because 
some portions of Hearing Exhibit 1, including various analyses, 
were prepared before the Raleigh Area Addenda were prepared.

4 The Shelby County Board of Education is a defendant in case 
No. 4916 in this Court, styled Robinson v. Shelby County Board of 
Education. See 467 F.2d 1187 for the Court of Appeals ruling 
approving the plan in that case as unitary.

Opinion of the District Court



15a

Opinion of the District Court

cause neither of those contingencies presently exists, the 
Court concludes that the proposal set forth in H. E. 21 is 
inappropriate for consideration in the City Board’s plan 
of desegregation at this time.

As heretofore indicated, the plaintiffs advocate basic 
secondary Plan I, as modified, and elementary Plan III, 
subject to a change pertaining to Campus School. The 
modifications were presented by Dr. Gordon Foster, Direc­
tor of the Title IV Center located in Miami, Florida. These 
modifications primarily increase the degree of desegrega­
tion in the system by requiring a higher percentage of 
minority representation in each school than is contemplated 
by the team’s proposed Plan I. H.E. 32.

As heretofore indicated, the defendant Board advocates 
secondary Plan II and elementary Plan II with the ap­
propriate Raleigh Addendum as proposed.

The basic enrollment date used by the team, without the 
area included in the Raleigh annexation area, is as follows:
Grades B l a c k  %

1-6 40,521 (61%)
7-9 20,164 (57%)
10-12 14,886 (50%)

75,571 (58%)

W h it e  %  T otals

25,896 (39%) 66,417
14,939 (43%) 35,103
14,682 (50%) 29,748
55,697 (42%) 131,268

Secondary Plan I, as modified, (H. E. 32) desegregates 
all senior and junior high schools in the system, primarily 
by boundary changes and satellite zoning. It also phases 
out one high school unit and some junior high units from 
certain presently combined junior and senior high school 
attendance units.

Under Plan I most of the secondary units have projected 
minority attendance between 40 and 50 percent. The lowest 
percentage of minority representation is 34% black in the



16a

high schools and 35% in the junior high schools. Of the 28 
senior units 8 are more than 50% white and of the 39 
junior high units 8 are more than 50% white.

Elementary Plan III primarily uses pairing or clustering 
of schools with non-contiguous zones as opposed to satel­
lite zoning. It has 5 attendance units out of a total of 99 
with less than 30% minority representation.

Secondary Plan I as modified has some extreme pro­
posals. For example, Ridgeway High School, the eastern­
most school in the system, has a projected enrollment of 
509 white students and 3 black students. Plan I as modified 
(H.E. 32) proposes that 59% of the white students be bused 
7.4 miles to a former black school and 240 black students 
from that school be bused to Ridgeway to the end that this 
former 99% white school would become 54% black and 
46% white.

Plans II, secondary and elementary, advocated by the 
Board, provide a lesser degree of desegregation. Under 
those plans all former white schools are desegregated. The 
involuntary minority representation in those plans is gen­
erally 30%. Those plans leave 2 high schools in a total of 
28 attendance units black. Ten of those schools have a 
minority representation below 30% with the lowest pro­
jected percentage in that group 25% black at Sheffield.

In the junior high schools 4 of the 39 attendance units 
are projected one-race black schools. Seven attendance 
units will have a minority representation between 25% and 
29%. As in the case of Plan I modified, the primary method 
of desegregation of the secondary schools in Plan II is 
satellite zoning and boundary changes.

Elementary Plan II has 99 attendance units. As in the 
case of elementary Plan III, the primary method of de­
segregation is pairing and clustering schools in non-con­

Opinion of the District Court



17a

tiguous. zones. This plan will result in maintaining 13 all 
Negro schools and six 90% or greater Negro schools.

The issues pertaining to the time, distance and cost of 
transportation were also included in the proof presented 
at the hearing. In addition to the criteria set forth in 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971), namely, whether or not the time and dis­
tance of transportation would “ risk the health of the chil­
dren or significantly impinge on the educational process” , 
the parties, presented proof on the economic feasibility of 
the required transportation. A  complicating factor on these 
issues is presented by virtue of the question whether or not 
the interstate highways (expressways) will be used in ac­
complishing the necessary transportation. Twenty percent 
or less time is needed to transport students when 50% of 
the distance can be traversed on expressways, unless a 
traffic jam is encountered, in which case the time saving 
is reversed to a. protracted delay, thereby interfering with 
the multiple trip schedule of the buses.

The plaintiffs advocate the use of the expressways there­
by creating shorter overall transportation times and costs. 
The defendants advocate not using the expressways thereby 
assuring more reliable delivery of students and a safer 
means of transportation.

Pages 123 and 124 of Hearing Exhibit 1 reflect the esti­
mated transportation data with and without the use of the 
expressways under the basic plans. Hearing Exhibit 34 re­
flects the transportation data pertaining to Plan I modified 
and otherwise summarizes the comparative plans generally. 
Based upon these exhibits and the other proof, the Court 
finds that the estimated cost of transportation under secon­
dary Plan I modified and elementary Plan III without the 
use of expressways and including the Raleigh Area would

Opinion of the District Court



18 a

be $2,692,441.30 for transportation of an estimated 57,563 
students. By using the expressways this figure would be 
reduced to $2,573,095.95.

The comparative figures for Plans II (elementary Plan 
II and secondary Plan II) with the Raleigh Area included 
are $1,683,897.70 without the use of the expressways and 
$1,679,622.70 with the use of the expressways. This is based 
upon the estimated transportation of 39,904 students.

The cost figures for both plans are based upon estimates 
of $38.25 per year, per pupil, with one-way times under 30 
minutes, of $47.25 per pupil with times between 31 and 45 
minutes and of $71.10 per pupil with times between 46 and 
60 minutes.

Under both high school plans no students would be trans­
ported in excess of 45 minutes one way. H.E. 1, p. 123 and 
H.E. 34. Under Plan I modified, with the use of the ex­
pressways, no junior high students would be transported 
more than 45 minutes. H.E. 34. However, if the express­
ways were not used, over 2200 junior high students would 
be transported more than 45 minutes under Plan I modified. 
H.E. 1, p. 123. Under Plan II no junior high students, 
with or without expressway use, would be transported more 
than 45 minutes. H.E. 1, p. 124. However, under Plan III 
(elementary) 5341 students would be transported between 
46 and 60 minutes with the use of the expressways and 7501 
would be transported between 45 and 60 minutes without 
the use of the expressways. H.E. 34. Without the use of 
the expressways, the maximum travel time under elemen­
tary Plan III would be 63 minutes. On the other hand, 
under Plan II (elementary) no students would be trans­
ported in excess of 45 minutes.

The lesser degree of desegregation in combined Plan II 
is based primarily upon four factors pertaining to effec­

Opinion of the District Court



19a

tiveness, feasibility and pedigogical soundness. Those fac­
tors are time and distance traveled on buses, cost of trans­
portation, preservation of desegregation already accom­
plished, and adaptability.

With regard to the factor of time and distance traveled, 
the proof does not establish a transportation time in 
specific minutes at which “the time or distance is so great 
as to either risk the health of the children or significantly 
impinge on the educational process.” Swann, 402 U.S. 
30-31. However, three team members, all of whom have 
extensive educational experience in this system, and Dr. 
Leon Lebovitz, a psychologist, all testified that transporta­
tion times in the neighborhood not more than 30 to 40 
minutes are preferable to the welfare of elementary pupils.

With regard to the cost of transportation factor, the 
longer trips for the buses significantly increase the per 
pupil cost. This is due to the actual operating cost for 
longer distances and the fact that more buses are required 
because the same bus cannot make as many multiple trips 
in the mornings and afternoons. Also a greater number of 
buses increases the congestion and risk of accidents on the 
streets and highways of this major urban city.

Additionally, it must be remembered that the Board has 
not provided transportation in sizeable amounts until this 
year, therefore, the transportation costs of the plans before 
the court are an extra expense item in a budget that is in­
evitably trimmed by the Council of the City in the process 
of appropriating the tax monies to the various agencies and 
departments of the city. A further budgetary problem is 
created when it is realized that the transportation expense 
has and is expected to diminish the income in an unpre­
dictable amount. As indicated above, the implementation of 
Plan A caused a sizeable number of students to leave the

Opinion of the District Court



2 0 a

system and this practice is expected to continue, particu­
larly when long distances of transportation are imposed. 
Because the major source of the Board’s funds comes from 
state funds based upon the number of students in the sys­
tem, a decrease in income will be caused.

It is also noted that involuntary desegregation of the 
schools by busing involves costs in addition to the actual 
cost of transportation. Due to the long history of racial 
discrimination in this city and its resulting racial hostility, 
experience has shown that extensive preparation is neces­
sary to effectively bring the students of different races to­
gether. In some cases additional personnel must be as­
signed to avoid or correct racial confrontations in the 
mixed schools. Personnel time costs money.

With regard to the factor of the preservation of desegre­
gation already accomplished, this Court has previously di­
rected and approved, the practice of preserving desegre­
gated schools which have accomplished desegregation 
voluntarily. Based upon this same reasoning, the team 
drafted Plan II upon a basis that Plan A  heretofore imple­
mented would be preserved as much as possible. In this 
process the team did undo some junior high Plan A  pairings 
which had created one-grade schools, by sending all stu­
dents in two or more zones to one school for grades seven 
and eight and the remainder of the junior high students in 
those zones to another school for the ninth grade. Undoing 
this practice by satellite zones or otherwise was considered 
to be educationally preferable.

The fourth factor considered by the team in the prepara­
tion of Plan II, namely, adaptability, pertains to the ef­
fectiveness of the proposed plans. The testimony on this 
subject was guarded and sometimes delicately worded 
because it pertains to the ticklish topic of “white flight” .

Opinion of the District Court



21a

However, the proof does establish that one of the reasons 
that the remaining number of black schools were not in­
cluded in the plan was the expected unwillingness of white 
patrons to send their children to those particular black 
schools in the light of the location and the distances 
involved in the necessary exchange of white and black 
students.

The delicacy with which this factor was presented by the 
witnesses undoubtedly was based in part upon this Court’s 
holdings and findings in the past to the effect that the 
defendant Board was not privileged to maintain the ex­
tremely segregated schools merely because it was thought 
that the white citizens disagreed with the principle of de­
segregated schools. However, the effectiveness require­
ment consistently set forth in the opinions of the Supreme 
Court must also be considered as a limiting practicality re­
ferred to in Swann and Davis, 402 IJ.S. 1 and 33 (1971). 
While this Court is fully cognizant of the teaching of Brown 
v. Board of Education, 349 U.S., 299-300 (1955), Monroe v. 
Board of Commissioners, 391 U.S., 450, 458-59, and Swann, 
402 U.S. 1 , 12-13, namely, that the vitality of constitutional 
principles cannot be allowed to yield because of disagree­
ment with them, the fact remains that a system cannot ef­
fectively desegregate by the practice of involuntarily as­
signing members of the opposite race to certain schools 
if there are not sufficient members of the white race avail­
able to assign.

Hearing Exhibit 29 from the recent hearing provides at­
tendance figures by race in some schools involved in Plan A. 
It shows projected and actual attendance figures for the 
schools listed thereon on three different dates: projected 
Plan A enrollment as of March 3, 1972, before Plan A was 
adopted by this Court for implementation at the beginning

Opinion of the District Court



22a

Opinion of the District Court

of the 1972-73 school year; projected Plan A enrollment as 
of December 15, 1972, after Plan A  was approved by this 
Court and the Court of Appeals, but before it was imple­
mented; and actual Plan A enrollment as of February 1973, 
after it was implemented on January 24, 1973.

This exhibit shows as a fact that there was a pattern of 
white students leaving the zones of former white schools 
after Plan A  was announced as a plan of desegregation for 
the 1972-73 year, and a failure to an even greater degree of 
white students to actually attend the former black schools 
when the pairings were implemented. While it is true that 
some of the decreases in projected enrollment between 
March 1972 and December 1972 were caused by reasons 
other than “white flight” , such as modification of Plan A 
as in the case of Melrose and Sherwood Junior High 
Schools, the above mentioned pattern is clearly established. 
For example, a comparison of the pairing between Shannon 
and G-randview Elementary Schools is made. These schools 
have contiguous zones. Grandview is in a predominantly 
white neighborhood. The Shannon zone, although contigu­
ous to the Grandview zone, is in a black neighborhood. In 
the school year 1971-72 Grandview had 887 white pupils and 
2 black pupils, and Shannon had 919 black pupils and no 
whites. H.E. 18 March hearing in this cause. The white 
reaction to the projections and results of Plan A  is as 
follows:



23a

Opinion of the District Court

School

Grade
Organi­
zation

Plan A 
Projected 

Enrollment 
(March 3, 

1972)

Plan A 
Projected 

Enrollment 
(Dec. 15, 

1972)

Shannon
(black) 4-6 W 429 (53%) 

B 376(47%) 
T 805

W 352(48%) 
B 376(52%) 
T 728

Grandview
(white) 1-3 W 480(52%) 

B 450(48%) 
T 930

W 379(52%) 
B 352(48%) 
T 731

Plan A 
Projected 

Enrollment 
(Feb. 1973)

W  86(19%) — 266 
B 377(81%) +  1
T 463 (— 265)

W  230(40%) — 149 
B 349(60%) — 3 5
T 579 (— 252)

This refusal of the white students to attend school with 
black students, particularly at black schools, results in 
their leaving the system for private schools or moving to 
unaffected areas. The inability of a court to overcome the 
change of the racial makeup of a neighborhood was a find­
ing in the Court’s ruling in this cause, filed December 14, 
1972, on pages 6 and 7. Therein the Court noted that ef­
forts to desegregate White’s Chapel black school in the 
southeastern part of the city had failed because the whites 
moved from the area known as Westwood Hills Subdivision. 
This area had been used by Chief Judge Bailey Brown in 
a pairing in the Shelby County School case before that 
area was annexed.

On the basis of the above findings, this Court concludes 
that implementation of the secondary Plan II and elemen­
tary Plan II with their Raleigh Addendum at the com­
mencement of the 1973-74 school year will constitute com­
pliance with the “ additional instruction” set forth in the

B Some decline in enrollment at the beginning of the school year 
•was attributable to a decrease (non-raeial) in the number of pupils 
starting in the first grade. This has been evident in recent years 
and is expected to continue.



24a

August 29, 1972 opinion of the Court of Appeals, even 
though the plans leave some all black schools.

In support of this conclusion, this Court primarily relies 
upon Swarm, and Davis, 402 U.S. 1 and 33, which are the 
two opinions which the Court of Appeals directed this 
Court to consider in the 1971 remand of this case. 444 F2d 
1179. As this Court has noted previously, the opinion of 
the Supreme Court in Davis directs the district judge or 
school authorities to “make every effort to achieve the 
greatest possible degree of actual desegregation, taking 
into account the practicalities of the situation.” 402 U.S. 
37. As this Court has also noted previously, the Supreme 
Court in Section V of the Swann opinion considered four 
essential problem areas and their limitations, in the field 
of student assignment to accomplish a unitary system. 402 
U.S. 22-31. In the portion of the opinion which considers 
“ One-race Schools” the Supreme Court recognizes the fa­
miliar phenomenon in metropolitan areas that minority 
groups are often found concentrated in one part of the 
city. Immediately thereafter the Court stated: “ In some 
circumstances certain schools may remain all or largely of 
one race until new schools can be provided or neighborhood 
patterns change.” 402 U.S. 25.

It is in that same section that the Court stated on pages 
26 and 27 as follows:

“An optional majority-to-minority transfer provi­
sion has long been recognized as a useful part of every 
desegregation plan. Provision for optional transfer of 
those in the majority racial group of a particular 
school to other schools where they will be in the 
minority is an indispensable remedy for those students 
willing to transfer to other schools in order to lessen 
the impact on them of the state-imposed stigma of

Opinion of the District Court



25a

segregation. In order to be effective, such a transfer 
arrangement must grant the transferring student free 
transportation and space must be available in the 
school to which he desires to move.”

In the section on the “Remedial Altering of Attendance 
Zones,” the Court recognized the pairing and grouping of 
non-contiguous zones as a permissible tool in the light of 
the objective sought. The Court further noted that the 
necessary remedial alteration of zones may be adminis­
tratively awkward, inconvenient and burdensome. How­
ever, on this topic the Court also stated: “No fixed or even 
substantially fixed guidelines can be established as to how 
far a court can go, but it must be recognised that there are 
limits.”  (Emphasis added). 402 U.S. 28.

In the section entitled “Transportation of Students” , the 
Court recognized the widespread use of bus transportation 
by school systems throughout the nation and found that 
the use of transportation as required by the district judge 
in the Swann case was permissible. The Court again found 
that no rigid guidelines could be given; however, it did 
note that there are limitations on the use of transportation 
as a means of desegregation.

While no specific times or distances of transportation 
were prescribed, the Supreme Court did include in its 
opinion approving what the District Court prescribed for 
the Charlotte-Mecklenburg system, the following observa­
tion: “The trips for elementary school pupils average 
about seven miles . . . they would taxe hot over 35 minutes 
at the most’ ” . 402 U.S. 30. In the same section the Court 
also stated: “It hardly needs stating that the limits on 
time of travel will vary with many factors, but probably 
with none more than the age of the students.” 402 U.S. 31.

Opinion of the District Court



26a

This Court believe that the implementation of secondary 
and elementary Plan II will meet the suggested limitations 
set forth in Swann “without frustrating the appropriate 
scope of equity.” 402 U.S. 31. Therefore, if the Plans II are 
effective the system will be unitary as that term is used 
in the controlling opinions. However, the plans are at 
present paper plans without specifically determined satel­
lite zone boundaries. If the implementation of the plans 
does not prove to be an effective means of desegregation, 
further proceedings will be required to determine what 
should then be done.

Opinion of the District Court

Cam pu s  S chool

As heretofore noted, the plaintiffs seek a change in the 
assignment method established by the Court for the ele­
mentary school known as “ Campus School” . This is a 
school built on the Memphis State University campus pur­
suant to a contract between the Education Department of 
Memphis State University and the defendant Board. Under 
Plan A Campus School was proposed to be closed as a 
school with a regular attendance zone. After the most re­
cent remand, this Court conducted a hearing on a proposed 
plan for operating Campus School as an integrated labora­
tory school with the opportunity to study the results of a 
genuinely integrated student body. This Court approved 
a plan which, inter alia, required a racial ratio of 50-50 
with a 10% leeway. Opinion of this Court filed in this cause 
November 1, 1972.

Plaintiffs now seek to have this Court amend the provi­
sions of its former ruling so that proximity to the school 
would not be an assignment feature at Campus School and 
further that the Court establish a larger percentage of 
Negroes so that the laboratory experience would more



27a

nearly approach the racial percentage in the system as a 
whole. (61% black and 39% white in the elementary 
schools).

Proof was offered at the recent hearing on the operation 
of the school since January 24, 1973, in the light of the 
requirements imposed by the Court. The proof established 
that Memphis State University personnel and Campus 
School personnel actively recruited Negro applicants for 
Campus School which was formerly a white school and the 
ratio is now approximately 50-50. A foundation grant has 
been obtained and a laboratory experience is being con­
ducted at that institution. Therefore, the Court concludes 
that the plan for Campus School approved in the Court’s 
opinion of November 1, 1972, should not be disturbed.

T ransfer P rovisions

At the recent hearing, the defendant Board applied for 
the right to implement certain transfer policies in connec­
tion with the further desegregation plans, which will re­
quire considerable disruptive reassignments of students. 
The Recommended Transfer Policies are set forth in Hear­
ing Exhibit 15.

There are nine numbered transfer provisions plus an 
additional one (unnumbered) pertaining to non-resident 
students who transfer to the defendant system on a tuition 
basis.

In a system this size there are enough unusual situations 
which occur so that some discretion should be given to al­
low transfers. However, experience has shown that due to 
the widespread racial hostility to desegregation, some 
patrons will attempt to abuse transfer provisions by fabri­
cating factual situations for the purpose of avoiding assign­
ments in furtherance of desegregation. This creates

Opinion of the District Court



28a

problems which can cause bad faith accusations against 
those charged with administering the transfer policies.

Numbered recommendations 1, 2, 3 and 9 on Hearing 
Exhibit 15 are not opposed by the plaintiffs. Respectively, 
those are transfers for (1) seniors in affected schools dur­
ing the 1973-74 school year, (2) special education students 
and one accompanying brother or sister, (3) children of 
Board employees assigned to a particular school, and (9) 
majority to minority transfers with transportation pro­
vided when the transfers are from schools not affected by 
the plan of desegregation.

This Court approves those four categories of transfers. 
However, some further observations must be made with 
regard to item 9. This is the majority to minority transfer 
from schools not affected by the plan with Board transpor­
tation provided. This is a provision which is required by 
Swann on page 26, supra. A  form of this transfer provi­
sion has been in force in this system since the Swann 
opinion was announced. However, the existing provision 
uses the public transportation system for those majority 
pupils who elect to transfer to minority race schools. The 
number of students who have sought this type of transfer 
has been relatively few.

There is no specific plan before the Court for improving 
the public appeal of this type transfer, therefore, the Court 
does not order a specific means of encouraging this type 
transfer. However, it does appear that more specific efforts 
should be adopted to encourage this type of transfer from 
the 25 schools that will remain black after the implementa­
tion of Plans II. Specific majority white schools could be 
chosen as available for those transfer, and a program of 
recruiting could be instituted whereby staff personnel 
would go to the patrons of the all black schools and urge

Opinion of the District Court



29a

them to transfer. I f  enough interest is shown, it would ap­
pear that special buses could be rented or hired in lieu of 
the public transportation routes.6

Transfer Recommendation Policy No. 4 pertains to ad­
justment transfers for psychological or behavioral reasons. 
Transfers of this type are presently allowed with the pro­
viso that the transfer must be to a school of the same racial 
majority to minority makeup as the school from which the 
transfer was issued. However, in some instances this has 
created problems due to distance. These transfers are usu­
ally involuntarily made for disciplinary problem, students. 
The Court aproves this amended version of the transfer 
policy subject to the proviso that such transfers will not be 
permitted for the mere purposes of avoiding desegregation 
assignments.

Transfer Policy No. 5 invites abuse because it allows 
transfers for “medical reasons or severe hardship situa­
tions.” It does have a further requirement of documentary 
support and approval by the Board Attorney.

Although there is no present policy of this nature, some 
transfers have been allowed in extreme cases by consent, 
such as wheelchair patients and instances of involved 
family problems which would create a severe hardship if a 
student were required to attend a school removed from the 
area of his residence.

In order to allow some flexibility, this type transfer is 
approved subject to the additional proviso that a committee 
of three staff personnel shall be appointed to consider such 
transfers and if a majority of the members approve such a

6 In this regard the Court notes that the Supreme Court in Swann 
approved some oneway busing from “the Negro residential area of 
the city to the nearly all-white Independence High School.” 402 
U.S. 8 and 9.

Opinion of the District Court



30a

transfer the application shall then be forwarded to the at­
torney for the Board with a copy of the recommendation to 
the attorneys for the plaintiffs. Approval of the Board 
Attorney shall authorize the committee to grant the trans­
fer. If the attorney for the plaintiffs disagrees and the 
matter cannot be resolved by consent, the attorneys for the 
plaintiffs may move for a hearing before the Court.

Policy No. 6 pertains to some 10th grade and some 11th 
grade students who seek vocational education courses of 
study not offered at the schools to which Plan II would 
transfer them. Policy No. 7 pertains to 11th grade students 
in the school year 1973-74 who have begun courses in “major 
or college entrance requirements” which would not be avail­
able at the schools to which Plan II would transfer them.

These are approved as proposed, except high school 
major courses shall be eliminated from Policy No. 7, that is 
to say those transfers will only be granted for courses 
needed for college entrance requirements.

Policy No. 8 authorizes minority to minority transfers 
without Board furnished transportation. It is limited to 
schools not affected by the plan of desegregation. This is 
an existing transfer provision which this Court previously 
approved in order to permit persons in isolated minority 
situations to transfer to a minority situation of a greater 
percentage. This policy will be allowed to continue.

The unnumbered recommendation pertains to students 
who do not live in the corporate limits of Memphis but are 
allowed to attend schools in the defendant system on a 
tuition basis. As the Court noted in approving the provi­
sion previously, it is de minimus. It is stated slightly dif­
ferent in Hearing Exhibit 15 than it was as previously 
approved. Under the existing provision those students may 
transfer to a school of the same majority-minority race as

Opinion of the District Court



31a

the student would attend in the system of Ms residence.7 
This is preferable to the manner in which it is stated in 
Hearing Exhibit 15 wherein persons in the minority race 
may not be granted that type of transfer.

S u m m ary

As indicated above, this Court approves and adopts 
Plans II for implementation at the beginning of the 1973-74 
school year as the proper means of complying with the 
Court of Appeals additional instruction. The defendant 
Board is hereby directed to require the team to prepare the 
specific satellite boundaries and the zone boundaries neces­
sary to implement Plan II. In this regard the team has 
asked for discretionary power to alter the projected num­
ber of students in the satellite zones if natural boundaries 
produce a different number of projected pupils for transfer. 
The Court grants this discretionary authority; however, 
the Court also notes that the transfer provisions will affect 
the number of students in the satellite zones, there will un­
doubtedly be hostile reaction to the involuntary assign­
ments and that the proof shows that there will be some 
attrition in white neighborhoods. Therefore, when possible, 
discretion should be exercised in favor of assigning more 
students for satellite transfer, particularly in situations 
where the projected minority is less than 30%.8

7 Of course, a variation of this policy should be allowed if the 
student wishes to become a minority race student in the Memphis 
system.

8 Since the hearing in this cause the Court of Appeals for the 
Sixth Circuit has announced its in banc ruling in Mapp v. Board
of Education of Chattanooga, ------  F.2d —— (April 30, 1973).
The ruling affirmed the District Court’s rulings in that case re­
ported in 341 F. Supp. 193 and 329 F. Supp. 1374. Although the 
factual situation presented in Mapp is different from this case, the 
District Court did approve a plan which called for ratios of not less 
than 30% minority representation in schools subject to the plan.

Opinion of the District Court



32a

Without meaning to be critical of the team, whose mem­
bers were made court witnesses, the Court observes that it 
is unfortunate that the respective plans had such un­
imaginative designations as I, II, III and the Team Plan. 
This has created some confusion in the record because even 
the lawyers inadvertently used the wrong number on some 
occasions in presenting their client’s problems.

Having started with Plan A  as the first truly significant 
involuntary means of desegregation in this city, the Court 
hereby designates the combined plans approved above as 
Plan Z, in the hope that this will prove to be the terminal 
plan for this long standing problem in the City of Memphis.

The Court will retain jurisdiction of this case pending 
a determination of the effectiveness of the implementation 
of Plan Z. Additionally, the Court will continue the cur­
rent practice of requiring notice by the defendant Board to 
counsel for the plaintiffs when site acquisitions and new 
construction are contemplated. 402 U.S. 21.

This 3rd day of May, 1973.

Opinion of the District Court

R obert M. M cRae, Jb. 
United States District Judge



33a

D istrict C ourt Judgm ent o f  M ay 17, 1 9 7 3

I n th e  U nited  S tates D istrict C onst 
F oe th e  W estern  D istrict oe T ennessee 

W estern D ivision

No. 3931— Civil

D eborah A . N orthcross, et al.,

vs.
Plaintiffs,

B oard of E dncation  of th e  M em ph is  C ity  S chools, et al.,
Defendants.

J udgm ent  On M em orandum  D ecision 
On T im etable F or U nitary  P lan

The issues raised by the additional instruction set forth 
in the August 29, 1972, remand of the Court of Appeals 
and of this Court’s Memorandum Decision filed November 
15, 1972, came on for hearing before Robert M. McRae, Jr., 
District Judge, and a further Memorandum Decision hav­
ing been duly rendered and filed on May 3, 1973,

It is Ordered and A djudged that the defendants take all 
necessary steps to implement the plan of desegregation in 
accordance with the provisions of the Memorandum Deci­
sion filed May 3, 1973, and all prior decisions not incon­
sistent with the provisions of the Memorandum Decision 
at the times set forth therein.

Dated at Memphis, Tennessee, this 17th day of May, 
1973.

R obert M. M cRae, Jr.
United States District Judge



34a

I n  th e  U nited  S tates D istrict C ourt 
F or th e  W estern  D istrict oe T ennessee 

W estern  D ivision

No. 3931— Civil

D istrict C ourt Ju d gm en t o f  July 2 6 ,  1 9 7 3

D eborah A. N orthcross, et al.,

vs.
Plaintiffs,

B oard of E ducation  of th e  M e m ph is  C it y  S chools, et al.,
Defendants.

Order On P lan  Z  Z one B oundaries

This ruling pertains to the Court’s consideration of the 
specific zone boundaries, including the satellite zones pre­
pared by Board of Education personnel after this Court’s 
May 3, 1973, ruling.

After the Court approved the basic plans which were 
designated Plan Z, the team previously assigned by the 
Board to prepare the plans undertook to specifically locate 
the zone boundaries and satellite zone boundaries consistent 
with the basic plan and the Court’s ruling. In the process 
the team and the Board approved certain guidelines to be 
followed. These guidelines are as follows:

1. Where possible establish satellite zones so that no 
student will be bused at both his junior and senior high 
years but will be enabled to remain at home at one of 
these levels.

2. Where possible do not create a satellite zone which 
will encompass the school building.



3 5 a

3. Where possible make every attempt to transport 
the junior high students the shortest time/distance in 
preference to the senior high students.

4. Where possible (contiguous boundaries) create 
satellite zones through boundary changes.

5. Where possible attempt to include an entire geo­
graphical area within the neighborhood rather than 
use fragments of several neighborhoods when estab­
lishing satellite zones.

In their work the team also used the post implementation 
of Plan A  attendance records. This reflected a decrease 
in enrollment based in a large measure on white flight from 
some zones effected by Plan A.

The results and certain changes which the team thought 
were required by the circumstances which their post hear­
ing efforts disclosed were included in a Report to the 
Court filed May 24, 1973.

Upon the request of counsel for the plaintiffs the deposi­
tion of Dr. 0 . Z. Stephens, Jr., the head of the Board desig­
nated team, was taken on June 25, 1973. This was an in­
quiry into the methods of and results of the team’s efforts.

Thereafter, on July 2,1973, the plaintiffs filed a Response 
to Defendants’ Report to the Court of May 24, 1973. The 
response contained an objection to the strict adherence to 
guidelines 1 and 2 set forth above insofar as that process 
resulted in less effective desegregation, particularly with 
regard to guideline 1 and the zones pertaining to transfers 
from Trezevant Junior High to Humes Junior High and 
Oakhaven Junior High to Longview Junior High and with 
regard to guideline 2 and the zones pertaining to transfers 
from Manassas Junior High to Frayser Junior High and 
Ridgeway Junior High to Melrose Junior High.

District Court Judgment of July 26, 1973



36a

By agreement of counsel the contested issues were sub­
mitted to the Court on the Defendants’ Report, including 
the exhibits attached thereto, the Plaintiffs’ Response and 
the deposition of Dr. Stephens.

Upon consideration of the record, this Court concludes 
that the zones including the satellite zones and the changes 
in the plan proposed by the Report should be approved.

It Is So Ordered.

The response of the plaintiffs also calls attention of the 
Court to a projection of the number of students to be 
transported prepared by Dr. Stephens which reflects a 
substantial decrease in the number of students to be trans­
ported (Ex. 1 and 2 to Dep. of Dr. 0. Z. Stephens). This 
was a computation wherein an attempt was made to con­
vert the decreased enrollment experienced when Plan A 
was implemented to the enrollment to be expected when 
Plan Z is implemented. This projection was made primar­
ily for budgetary purposes and its accuracy can only be 
determined by actual experience.

No action is requested from the Court at this time. How­
ever, plaintiffs do suggest that if the projection proves to 
be accurate that enlargement of the present zones may be 
required in order to make the plan more effective.

As indicated above, the accuracy of these projections can 
only be determined by experience. On page 19 of its May 
3, 1973 decision the Court stated:

“Therefore, if [Plan Z is] effective the system will he 
unitary as that term is used- in the controlling opinions. 
However, the plans are at present paper plans without 
specifically determined satellite zone boundaries. I f  the 
implementation of the plan does not prove to be an

District Court Judgment of July 26, 1973



37a

effective means of desegregation, further proceedings 
will be required to determine what should then be 
done.” (Emphasis in original)

In the recently published per curiam in banc opinion in 
the Knoxville, Tennessee school desegregation case the 
Court of Appeals for the Sixth Circuit declined to consider 
population shifts that had allegedly occurred in Knoxville 
after the District Court ruling and while the appeal was 
pending. However, the court noted that appropriate relief 
required by changed conditions was a matter to be con­
sidered by the District Court. The Court of Appeals stated 
as follows:

“We reemphasize the holding of this Court in Kelley v. 
Metropolitan Board of Education of Nashville and 
Davidson County, supra : ‘Like most decrees in equity, 
an injunctive decree in a school desegregation case is 
always subject to modification on the basis of changed 
circumstances.’ 463 F2d at 745-46.” Goss v. Board of 
Education of Knoxville, p. 5 Slip opinion (C.A. 6 
7-18-73).

In order that the Board may be advised of the effective­
ness of Plan Z, and in the event that modification is re­
quired to be considered b y  this Court, it is Ordered that 
the Board is to continue to maintain the pupil locator map 
or its equivalent.

Because this ruling pertains to the specific phases of 
Plan Z, it is the belief of this Court that this ruling and 
the supplemental record on its issues should be a part of 
the record before the Court of Appeals when it considers 
the appeal of this Court’s May 3, 1973 decision.

District Court Judgment of July 26, 1973



38a

I t I s, T herefore, O rdered that the Clerk of this Court 
forward this ruling and the record pertaining to it to the 
Clerk of the Court of Appeals.

This 26th day of July, 1973.

District Court Judgment of July 26, 1973

R obert M . M cR ae , J r . 
United States District Judge



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