Board of Education of the City of Chattanooga, Tennessee v. Mapp Brief in Opposition to Certiorari

    I n  t h e

©mart nt tin' Mntipfr Staten
October Term, 1975

No. 75-1077

T h e  B oard oe E ducation  o f  th e  C ity  
oe C hattanooga, T ennessee , et al.,

Petitioners,
vs.

J ames J o n ath an  Mapp, et al.

ON PETITION f o r  a  w r it  o f  c e r t io r a r i t o  t h e  
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

J ack  Greenberg 
J am es M. N abrit , III 
D rew  S. D ays , III

10 Columbus Circle 
New York, New York 10019

A von N. W illiam s , Jr.
1414 Parkway Towers 
Nashville, Tennessee 31249

Attorneys for Respondent



TABLE OF CONTENTS

PAGE

Opinions Below — .................. -.... -................................  1

Question. Presented ................ -..... -...... ..................... -....  1

Statement of the Case .................................................... 2

Argument ........ ..... -...........- .............-..............................-  ^

C onclusion  .............. ........... ............................................................. 6



I n  th e

(Eourt of tl|T United &tatea
October Term, 1975 

No. 75-1077

T h e  B oard of E ducation  of th e  C ity  
of Chattanooga, T ennessee , et ail.,

Petitioners,
vs.

J ames J o n ath an  Mapp, et at.

ON PETITION FOE A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals for 
the Sixth Circuit of October 20, 1975 is reported at 525 
F.2d 169 (6th Cir. 1975). Its opinion denying rehearing 
and rehearing en banc on January 27, 1976 is now re­
ported at 527 F.2d 1388 (6th Cir. 1976).

Question Presented

Respondents submit that petitioners’ third question, 
Petition p. 4, should read as follows:

Did the lower courts err in rejecting a student assign­
ment plan proposed by the Board of Education of



2

Chattanooga, Tennessee that would have perpetuated 
the existence of numerous all-black schools and have 
increased black percentages in other majority-black 
schools in order to ensure that as many white children 
as possible attended majority-white schools.

Statement o f the Case

This school desegregation litigation was filed on April 
6, 1960 on behalf of a class of black children and parents 
(respondents herein) seeking an end to state-imposed racial 
segregation in Chattanooga, Tennessee public schools. 
Though respondents have certain problems with the State­
ment of the Case by the petitioners (hereinafter, “the 
Board” ) we would submit that a full discussion of these 
matters is already contained in our petition, James Jona­
than Mapp v. The Board of Education of The City of 
Chattanooga, Tennessee, 44 U.S. L.W. 3626 (U.S. April 
27, 1976) (No. 75-1564) seeking review of lower court re­
fusals to require the development of a new desegregation 
plan for Chattanooga schools. We would respectfully di­
rect the Court’s attention generally to pp. 3-13 of our peti­
tion in this respect, rather than repeating that discussion 
here in its entirety. As we pointed out in that context, a 
comprehensive desegregation plan was approved in July, 
1971 that would have altered in certain regards the dual 
nature of the Chattanooga system. That plan had not been 
fully implemented in major respects, however, by the be­
ginning of the 1973-74 academic year. By December, 1973, 
significant changes had occurred in the racial composition 
and physical configuration (as a result of annexations) of 
the system during this interim two and one-half years. 
Respondents argued that these changes rendered the 1971 
desegregation plan obsolete and suggested that only a 
totally new plan would meet constitutional requirements.



3

This suggestion and the Board’s proposed modification 
were both rejected by the trial court prior to the commence­
ment of the 1974-75 academic year. Full implementation of 
the 1971 plan occurred in September, 1974.

We would like to describe briefly here, however, the 
nature of the Board’s proposed modification of the 1971 
desegregation plan in light of the petition’s silence in this 
regard. Generally, the avowed purpose of the Board’s 
proposal was to achieve “a viable racial mix in as many 
schools in the system as possible. As defined by the Board, 
“a viable racial mix” was having 20 to 40 percent black 
students and 80 to 60 percent white students in a Chatta­
nooga school, even though the system-wide ratio at that 
time was 59% black and 41% white. In order to achieve 
this goal, the Board’s approach was to close two majority- 
black elementary schools, increase black percentages in 
three majority-black elementary schools, leave eight ele- 
mentaries 98-100% black, increase the black percentage at 
one majority black junior high school, leave four junior 
high schools 99% black and increase black percentages in 
two high schools from 95 to 99%. In sum, the Board pro­
posed to create or maintain white majorities in as many 
schools as possible by increasing or maintaining black per­
centages in majority-black or all-black facilities. As was 
indicated supra, the Board’s proposal came at a time when 
no comprehensive desegregation plan had ever been im­
plemented in Chattanooga.

Argument

Petitioners have raised in their “Questions Presented” 
and “ Statement of the Case” the issue of whether the 
lower courts were correct in rejecting the Board’s 1973 
attempt to modify the partially-implemented 1971 de­



4

segregation plan. To the extent that petitioners desire that 
issue reviewed, nothing in their petition warrants such 
consideration by this Court. For the lower courts were 
required by Swann v. Charlotte-M ecTtlenburg, 402 U.S. T 
(1971) and Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968) to reject a plan that proposed 
to increase black percentages in majority-black schools 
and to perpetuate the existence of numerous all-black 
schools within the system.

Moreover, in their “Reasons for Granting the Writ,” it 
becomes clear that what petitioners seek primarily from 
this Court is review not of that issue but rather of rulings 
denying respondents’ 1973 request for a new desegregation 
plan. Two of the three questions presented involve rulings 
favorable to the Board. (Petition, at 3-4) And much of the 
Board’s discussion is devoted to demonstrating why the 
lower court decisions were correct. For example, the 
Board states:

The net effect of the respondents’ petition in the court 
of appeals is to impose a completely new desegregation 
plan upon the Chattanooga system, as a constitutional 
requirement, at a point in time when CBE has been 
held to be in compliance by the district court, which 
judgment has been affirmed by the majority opinion 
in the court of appeals. How is it possible to justify 
seeking a completely new plan when the district court’s 
own factual finding says there is no default? (Petition, 
at 17-18)

Subsequently, it argues:
The respondents persist in their efforts to eliminate 
the “official action” element from consideration. The 
current push for a completely new desegregation plan



5

for Chattanooga is consistent with this objective. The 
respondents are blind to the flat holding by the district 
court that any objectionable racial imbalance remain­
ing was caused by factors “not within any reasonable 
responsibility of the board.” That the affirmative duty 
had been accomplished was recognized, explicitly by 
the court of appeals in its affirmance. {Id., at 23-24)

Furthermore, at other points in the petition, the Board 
holds up the decisions below as models that should guide 
this Court in resolving broad issues with respect to de­
segregation allegedly raised but not decided in Swan, 
supra. At 20, the Board suggests that while district courts 
in other cases have ignored state action and causation, the 
court in Chattanooga did not. At 27, it asserts that district 
courts in other cases have not given school boards “the 
benefit of the doubt” with respect to racial balance, whereas 
the Chattanooga court did give such benefit to the Board.

Consequently, the petition for a writ of certiorari is 
nothing more than an attempt to have this Court review 
decisions of the district court and court of appeals which 
were favorable to the Board. The granting of a writ of 
certiorari under these circumstances would be, we submit, 
highly inappropriate. P-ublic Service Commission v. Bra- 
shear Lines, 306 TJ.S. 204, 206 (1938).



6

CONCLUSION

For the foregoing* reason, it is respectfully submitted 
that the Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

J ack  Greenberg 
J am es M. N abrit , III 
D rew  S. D ays, III

10 Columbus Circle 
New York, New York 10019

A von  N. W illiam s , J r.
1414 Parkway Towers 
Nashville, Tennessee 31249

Attorneys for Respondent



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