Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief for Appellants and Cross-Appellees

    I n  the

luitrti i>tatP0 ©nurt uf Apprats
F ob the S ixth Circuit

No. 13,748

R obert W. K elley, et al.,
Plaintiffs-Appellants,

B oard of E ducation of the City of Nashville, 
Davidson County, Tennessee, et al.,

Defendants-Appellees.

No. 13,749

B oard of E ducation of the City of Nashville, 
Davidson County, Tennessee, qt al.,

Defendants-Cross-Appellants,

R obert W. K elley, et al.,
Plaintiff s-Cross-Appellees.

appeals from the district court of the united states for
T H E  M ID D LE D ISTR IC T  OF T E N N E S S E E , N A S H V IL L E  D IV ISIO N

REPLY BRIEF FOR APPELLANTS
(Case No. 13,748)

BRIEF FOR CROSS-APPELLEES 
(Case No. 13,749)

Z. Alexander L ooby 
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood Marshall
W illiam L. T aylor 10 Columbus Circle

of Counsel New York 19, N. Y.
Counsel for Appellants and 
Cross-Appellees



In th e

Hniteft Hfliirt at Kppml#
F or the Sixth Circuit

No. 13,748

R obert W. K elley, el al.,
Plaintiffs-Appellants,

-v.-

B oard oe E ducation oe the City of Nashville, 
Davidson County, Tennessee, et al.,

Defendants-Appellees.

a p p e a l  f r o m  t h e  d i s t r i c t  c o u r t  o f  t h e  u n i t e d  s t a t e s  f o r

T H E  M ID D LE D IST R IC T  OF T E N N E S S E E , N A S H V IL L E  D IV ISIO N

REPLY BRIEF FOR APPELLANTS

Statement

Appellees’ “Counter-Statement of Facts” is devoted not 
to the development of additional material facts to aid this 
Court in rendering a decision or to the correction of in­
accuracies in appellants’ statement of facts but rather to 
mere insinuations of misrepresentation and omission. That 
the “Counter-Statement of Facts” does not alter or add 
materially to the facts as stated by appellants appears on 
its face. In view of the length of the record, however, ap­
pellants deem it important to reply to certain points raised 
by appellees.



2

I. Despite the assertions of appellees, the Statement 
of Facts refers to all opinions rendered by the Court below 
except one (in a collateral proceeding not involving the 
validity of appellees’ actions but rather the restraint of 
persons seeking to interfere with desegregation). Appel­
lants’ Appendix contains all of these opinions and the ac­
companying findings of fact and conclusions of law, with 
the single exception of the opinion of a three-judge court 
referring the case to a single judge, relevant portions of 
which are included in another opinion (App. 47a) and re­
ferred to in the Statement of Facts.

II. As hereinafter more fully appears, no material facts 
were developed at the hearing on November 13-14, 1956 
which were not presented at subsequent hearings and dis­
cussed in appellants’ brief.

III. Appellees make numerous references to what they 
deem to be insufficient attention paid to the fact that the 
Court below found at various stages in the proceedings 
that they had acted in good faith. Appellants never dis­
puted the fact that such finding was made—-a holding of 
good faith was of course implicit in the Court’s sustention 
of appellees’ plan. Appellants merely pointed out that on 
February 18, 1958 the Court found that the Board of Edu­
cation was committed to a policy of continued segregation 
and documented this conclusion with a list of the Board’s 
attempts to delay (App. 94a). In this connection, it is 
ironic that appellees seek to place so much stress on their 
good faith in promulgating their plan in the same brief in 
which they seek to discard that plan entirely and substi­
tute a scheme for segregated white schools to which Negro 
students would be denied admission solely because of race. 
Moreover, when appellees first presented this scheme to 
the Court below, they characterized it as “a complete plan 
to abolish segregation” and urged that it differed in signifi­



3

cant respects from Chapter 11, Public Acts of Tennessee 
for 1957, which the Court had already ruled unconstitu­
tional (App. 97-101a). Appellees now drop the pretense 
and admit on page 30 of their brief that their plan and 
Chapter 11 are substantially the same and that the plan 
was offered “to preserve for appellate review the consti­
tutional question as to Chapter 11.”

IV. Appellees assert that the finding of substantial phys­
ical equality of facilities for white and Negro students 
contradicts statements in appellants’ brief. They neglect 
to point out that the finding they refer to was made in 
1956 and that at the April, 1958 hearing, the Superintendent 
of Schools under questioning by the Court, frankly ad­
mitted that certain facilities provided for white children 
were not provided for Negro children (App. 228-229a). 
How the physical equality of facilities, even if demon­
strated, would justify an extension of time for desegrega­
tion, appellees do not explain.

V. Although appellees attempt to make it appear that 
administrative obstacles were raised in 1956 which were 
not revealed in appellants’ brief, this is clearly not the 
case. Teacher attitudes and the problem of achieving 
homogeneous groupings based upon achievement levels and 
other factors, were both raised at the 1958 hearings and 
discussed in detail in appellants’ brief. The only other 
obstacle mentioned was “problems arising from a lib­
eralized transfer system.” That racial transfer system 
is here challenged, and the “problems” arising from it are 
nowhere identified by appellees. Neither is it suggested, 
with respect to this, or any other matter, that twelve years 
will permit the taking of any specific step to overcome the 
problem. Appellees assume throughout their brief that 
a mere listing of “problems” is all that is necessary to 
support the granting of a twelve year delay and that they 
have no responsibility for demonstrating that the time



4

sought is related to the solution of these “problems” or for 
proposing specific steps to overcome them.

VI. Appellees claim that the undisputed evidence shows 
that “the achievement level of white students in the Nash­
ville schools is substantially higher than such level of 
Negro students in the same grade,” and that this evidence 
conflicts with appellants’ assertion that the achievement 
levels of Negro students are not uniformly below those of 
white students. It is not clear whether appellees intend 
by this statement to contend that all Negro students in a 
particular grade are below the achievement level of all 
white students. Such a contention would of course have 
no basis in fact (App. 189-190a).

Here again, appellees make no effort to show a connection 
between the alleged disparity in achievement level and the 
need for a twelve-year delay. Whatever the relevance of 
appellees’ contentions, they hardly suggest that a solution 
is to be found in depriving all children now in the schools 
of their right to a nonsegregated education.

VII. Appellees make much of the opinion of one of their 
witnesses that it has been “difficult to consolidate schools 
even when they were relatively equal in ability and back­
ground.” It is difficult to determine what importance ap­
pellees attach to this general statement, but insofar as they 
believe it supports their twelve-year plan, it must be read 
in the light of evidence pertaining to actual experience with 
desegregation in Baltimore, Washington, D. C., Kansas 
City, Louisville, St. Louis, and other cities (App. 172-176a, 
210-213a).

VIII. Appellees take issue with the appellants’ failure to 
include in the Statement of Facts certain findings of fact 
made by the Court after the hearing on April 14, 1958. 
Appellees well know that these findings were repeated 
verbatim in the Court’s opinion which is included in the



5

appendix with the findings of fact, referred to in the State­
ment of Facts, summarized and quoted. What appellees 
find inadequate they do not say.

Argum ent

I
In Cooper v. Aaron, 358 U. S. 1, 3 L. ed. 2d 5, 10, the 

Supreme Court, reaffirming its decision in Brown v. Board 
of Education, 349 U. S. 294, specifically ruled that hostility 
to racial desegregation is not a relevant factor in determin­
ing whether justification exists for not requiring immediate 
nonsegregated education. There was no implication any­
where in the opinion that such hostility might become rele­
vant if connected in some way with the educational pro­
gram. Appellees’ proposition that hostility may be con­
sidered if put in other terms was specifically rejected in 
the Court of Appeals in Aaron v. Cooper, 257 F. 2d 34 
(8th Cir. 1958) and argued unsuccessfully in the Supreme 
Court. For a court to recognize such a proposition, would 
of course, rob the ban on consideration of hostility to racial 
desegregation of any real meaning.

Appellees contend that if they are not permitted to con­
sider community hostility to desegregation in formulating 
a plan, they will be denied the “constructive use of time.” 
But it was specifically to assure that time would be used 
constructively that consideration of community hostility 
was forbidden. What happens when this rule is not ob­
served is well demonstrated by this case. Time is sought 
not so that it may be used constructively to permit solu­
tion of specific problems and accomplish desegregation at 
the earliest practicable date, but simply for the sake of 
delay.



6

II

In seeking to sustain the validity of their racial transfer 
provision, appellees put forward the novel theory that the 
equal protection of the laws guaranteed by the Fourteenth 
Amendment has no application to acts of a state agency 
giving effect to the prejudices of private persons. They 
make no attempt to develop or document this argument— 
nor could they, for it is well established that the reach of 
the Fourteenth Amendment extends to state action effec­
tuating private discrimination. Shelley v. Kraemer, 334 
U. S. 1; Barrows v. Jackson, 346 U. S. 249; cf. Pennsyl­
vania v. Board of Directors of City Trusts of Phila., 353 
U. S .230.

Appellees also say that to hold their racial transfer 
plan unconstitutional it is necessary to assume that one 
pupil has a constitutional right that another pupil be com­
pelled to attend school in his geographic zone. No such 
assumption is necessary or implicit. Appellants seek only 
to attend school on the same terms as other students, with­
out regard to race. If appellees wish to adopt a free trans­
fer or registration provision which would allow both white 
and Negro students to enroll in or transfer to the same 
schools outside their geographic zones, it would not be 
subject to attack. This type of assignment system was 
adopted in Baltimore and the statement of Dr. Carmichael, 
relied on by appellees, clearly refers to this nonracial 
system rather than to a racial provision.

No sentence in Clemons v. Board of Education of Hills­
boro, 228 F. 2d 853 (8th Cir. 1956), however lifted out of 
context, supports appellees’ contention that it is proper 
for a school board to require Negro children to attend 
schools in their geographic area while allowing white 
children in the same area to transfer to other schools, 
solely because of their race.



7

When appellees seek to sustain their transfer provision 
as one based on “voluntary choice,” they clearly mean the 
voluntary choice of white parents only. They argue, in 
effect, that if all white parents elect to have their children 
attend segregated schools and all Negro parents elect to 
have their children attend desegregated schools, a school 
board could with impunity establish only segregated schools 
on the ground that to do otherwise would amount to “en­
forced integration.” But the use of catchwords like “en­
forced integration” or “proximity to local conditions” is 
hardly dispositive of the constitutionality of state action 
authorizing the assignment or transfer of children to 
schools on the basis of race.

Ill
Appellees, obliquely challenging appellants’ right to cite 

non-legal authorities in an appellate brief, characterize 
these authorities as of “dubious value,” and reiterate their 
charges that appellants have misrepresented the facts. Ap­
pellees apparently deem this mode of advocacy a satisfac­
tory substitute for meeting the substance of appellants’ 
arguments. But appellants obviously do not consider one 
of appellants’ main sources to be “dubious,” for they cite 
Dr. Carmichael in their own brief (p. 17), albeit for a point 
that does not support their argument. Appellees also neg­
lect to note that each proposition for which race rela­
tions authorities are cited is also supported by the testi­
mony of appellants’ witnesses at trial (App. 177-178a, 197- 
200a, 210-211a). Finally, appellees do not deem it neces­
sary or appropriate to disclose in what respect they differ 
with the conclusion that a twelve-year plan is not a good 
method for overcoming community antagonism, or the facts 
adduced to support this conclusion.

In their discussion of Moore v. Board of Education of 
Harford County, 152 F. Supp. 114 (D. Md. 1957), aff’d



8

sub nom. Slade v. Board of Education of Harford County, 
252 F. 2d 291 (4th Cir. 1958), cert, denied 357 U. S. 906, 
appellees carefully omit any mention of the fact that under 
the approved plan eleven of the eighteen elementary schools 
in Harford County were to be completely desegregated 
immediately and that immediate provision was made for the 
transfer of qualified students in high school pending the 
final elimination of segregation.

Appellees again rehearse their accusation that appel­
lants suppressed material facts in their brief. But again 
the only problems suggested involve teacher attitudes and 
achievement levels. The opposition of teachers to de­
segregation even if established is no more a relevant fac­
tor to be considered than hostility of the general com­
munity. Recognition of the antagonism of teachers as a 
relevant factor could give rise to indefinite delay. Appel­
lees do not reveal how it was determined that first grade 
teachers are prepared to teach desegregated classes now 
while. high school teachers will not be ready for ten to 
twelve years.

Nor do appellees show how alleged disparities in achieve­
ments levels are related to a twelve-year delay. The only 
inference to be drawn from appellees’ argument is that 
white and Negro children who have never attended segre­
gated schools can be taught together when they enter the 
school system but that after only one year of segregated 
education, the disparity of white and Negro achievement 
levels is so great that there is justification for forever de­
priving Negro children of the right to a nonsegregated 
education. If true, this would merely constitute an addi­
tional indictment of segregated schools. But appellees cite 
no evidence to show that differences in achievement levels 
are so great as to make it impracticable to allow any child 
now attending a segregated school in Nashville ever to at­
tend a desegregated school.



9

In sum, appellees contend that a finding of good faith 
and of community hostility to desegregation, when added 
to a general statement that problems exist, unaccompanied 
by any tie between the alleged problems and the delay 
sought, or by specific proposals for overcoming these prob­
lems, is all that is necessary to warrant the granting of a 
twelve-year delay. Appellants submit that a whole genera­
tion of school children cannot so easily be deprived of their 
constitutional rights and that the granting of a twelve-year 
delay under such circumstances can hardly be said to be 
“desegregation at the earliest practicable date.”

Respectfully submitted,

Z. Alexander L ooby
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood Marshall 
Suite 1790 
10 Columbus Circle 
New York 19, N. Y.

Counsel for Appellants

W illiam L. Taylor 
of Counsel



TABLE OF CONTENTS OF BRIEF

(Case No. 13,749)
PAGE

Counter-Statement of Question Involved .................  11

Statement of Facts .....................................................  12

Argument .......................................................................  12

Relief..............................................................................  13

T a b l e  op  C a s e s :

Aaron v. Cooper, 261 F. 2d 97 (8th Cir. 1958) .............. 12

Brown v. Board of Education, 349 U. S. 294 ...............  12

Cooper v. Aaron, 358 U. S. 1 ..................................... 12

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956) .. 12

Lawrence v. Hancock, 76 F. Supp. 1004 (S. D. W. Va. 
1948) ..........................................................................  13

Pennsylvania v. Board of Directors of City Trusts of 
Philadelphia, 353 IT. S. 230 ................................... 13

Shelley v. Kraemer, 334 IT. S. 1 ..................................  13

Tate v. Department of Conservation and Development,
133 F. Supp. 53 (E. D. Va. 1955), aff’d 231 F. 2d 615 
(4th Cir. 1956), cert, denied 352 U. S. 838 ..........12-13



In THE

Imtefr ( ta r t  at Appeals
F oe the S ixth Circuit

No. 13,749

B oard oe E ducation of the City of Nashville, 
Davidson County, Tennessee, et al.,

T)ef endants-Cross-Appellants,

-v.—

R obert W. K elley, et al.,
Plaintiffs-Cross-Appellees.

A PPEA L  FR O M  T H E  D IST R IC T  COU RT OF T H E  U N IT E D  STA TES FO R 

T H E  M ID D LE D ISTR IC T  OF T E N N E S S E E , N A S H V IL L E  D IV ISIO N

BRIEF FOR CROSS-APPELLEES

Counter-statem ent o f  Q uestion Involved

Does a plan which authorizes the establishment of state- 
operated schools for white children whose parents desire 
that they attend segregated schools violate the Fourteenth 
Amendment to the United States Constitution by denying 
to Negro children the right to enter said schools, solely be­
cause of their race?

The Court below answered this question Yes. Cross- 
Appellees contend that this answer was correct.



12

Statem ent o f  Facts

Cross-appellees accept tlie statement of facts in the brief 
of cross-appellants.

Argum ent

Does a plan which authorizes the establishment of state- 
operated schools for white children whose parents desire 
that they attend segregated schools violate the Fourteenth 
Amendment to the United States Constitution by denying 
to Negro children the right to enter said schools, solely 
because of their race!

The Court below answered this question Yes. Cross- 
Appellees contend that this answer was correct.

In the School Segregation Cases, the Supreme Court held 
that “racial discrimination in public education is unconsti­
tutional” and that “[a]ll provisions of federal, state, or 
local law requiring or permitting such discrimination must 
yield to this principle” Brown v. Board of Education, 349 
U. S. 294, 298.

In Cooper v. Aaron, 358 U. S. 1, 3 L. ed. 2d 5, 17, the 
Supreme Court said:

“State support of segregated schools through any 
arrangement, management, funds, or property cannot 
be squared with the Amendment’s command that no 
State shall deny to any person within its jurisdiction 
the equal protection of the laws.”

Cross-appellants could not, without violating the Four­
teenth Amendment, allow private persons to maintain 
segregated schools by leasing public facilities to them. 
Aaron v. Cooper, 261 F. 2d 97 (8th Cir. 1958); cf. Bar­
rington v. Plummer, 240 F. 2d 922 (5th Cir. 1956); Tate v.



13

Department of Conservation and Development, 133 F. Supp. 
53 (E. D. Va. 1955), aff’d 231 F. 2d 615 (4th Cir. 1956), 
cert, denied 352 U. S. 838; Lawrences. Hancock, 76 F. Supp. 
1004 (S. D. W. Ya. 1948). Nor could they provide assistance 
to private persons operating segregated schools, without 
contravening the Fourteenth Amendment. Pennsylvania 
v. Board of Directors of City Trusts of Phila., 353 U. S. 
230; cf. Shelley v. Kraemer, 334 U. S. 1.

In the face of this, cross-appellants assert that they have 
a right to operate and maintain openly a system of segre­
gated schools to which children are denied admission solely 
because of race. This contention, we submit, is insupport­
able.

R elie f

For the reasons hereinabove indicated, it is respect­
fu lly  subm itted that the judgm ent o f  the Court below  
should be affirm ed.

Respectfully submitted,

Z. A lexander L ooby
Avon N. W illiams, J r.

327 Charlotte Avenue 
Nashville 3, Tennessee

T hurgood Marshall 
Suite 1790 
10 Columbus Circle 
New York 19, N. Y.

Counsel for Appellees

W illiam. L. Taylor 
of Counsel



38