Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief for Appellants and Cross-Appellees
Public Court Documents
January 1, 1958

Cite this item
-
Brief Collection, LDF Court Filings. Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief for Appellants and Cross-Appellees, 1958. e17b93c2-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/77cf7765-e0d6-4560-b8ee-162cf035e2df/kelley-v-metropolitan-county-board-of-education-of-nashville-and-davidson-county-tn-reply-brief-for-appellants-and-cross-appellees. Accessed April 29, 2025.
Copied!
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