Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Petition for Writ of Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971

No.............................

ROBERT W. K ELLEY, et al., HENRY C, MAXW ELL, JR ., et al., 
Respondents,

v.
METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND 

DAVIDSON COUNTY, TENNESSEE, C. R. DORRIER, Chairman, et al.,
Petitioners.

PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals 

for the Sixth Circuit

K. HARLAN DODSON 
DICK L. LANSDEN 

1200 American Trust Building 
Nashville, Tennessee 37201 

Attorneys for Metropolitan County Board 
of Education of Nashville and David­
son County, Tennessee, C. R. Dorrier, 
Chairman, et al.

Of Counsel
HOOKER KEEBLE DODSON & HARRIS 

Nashville Trust Building 
Nashville, Tennessee 37201 

W ALLER LANSDEN DORTCH & DAVIS 
1200 American Trust Building 

Nashville, Tennessee 37201
HAMILTON GAYDEN, JR.

American Trust Building 
Nashville, Tennessee 37201

St. Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 314-231-4477



TABLE OF CONTENTS
Page

Opinions Below .............................................................  1
Jurisdiction ..................................................................  2
Questions Presented......................................................  2
Statutes Involved.................    3
Federal Rules of Civil Procedure Involved................  3
Statement ..................................................................  3
Argument, Question 1 ..................................................  5
Argument, Question 2 ..................................................  7
Argument, Question 3 ..................................................  8
Conclusion ..............................................................   10
Appendix “ A”—Opinion of the District C ourt.........  A-l
Appendix “ B ”—Opinion of the Court of Appeals for 

the Sixth Circuit ...................................................... A-25
Appendix “G”—Order of the Court of Appeals Deny­

ing Stay .....................................................................A-66
Appendix “ D”—Report of Director of Metropolitan 

Public Schools ............................................................ A-67

Table of Cases
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 ............................................   2,5,6,7,10
Winston-Salem, etc. v. Catherine Scott et al., No. 71- 

274, Oct. Term, 1971 ................................................  6,7

Miscellaneous
Federal Rules of Civil Procedure, Rule 23—Class 

Actions ....................................................................3, 8,9
Fourteenth Amendment to the Constitution of the 

United S ta tes.............................................................  3



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No.

ROBERT W. K ELLEY, et al„ HENRY C. MAXWELL, JR., et a!., 
Respondents,

v.
METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND 

DAVIDSON COUNTY, TENNESSEE, C. R. DORRIER, Chapman, et al.,
Petitioners.

PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals 

for the Sixth Circuit

To the United States Court of Appeals for the Sixth 
Circuit:

OPINIONS BELOW
The opinion of the Court of Appeals is not yet officially 

reported, but is set out in its entirety as Appendix “B” to 
this petition at pages A-25-A-6'5. The opinion of the Dis­
trict Court likewise has not yet been officially reported in­
sofar as we can ascertain, but is set out as Appendix “ A” 
at pages A-l-A-24.



JURISDICTION
The opinion and order of the United States Court, of Ap­

peals for the Sixth Circuit was entered on May 30, 1972. 
A petition for stay pending the filing of a petition for cer­
tiorari to this Honorable Court was denied by the Court of 
Appeals for the Sixth Circuit on July 25, 1972 (Appendix 
“ C” , p. A-66).

QUESTIONS PRESENTED
1. The District Court made no finding that assignment 

of children to the school nearest their home would not ef­
fectively dismantle the city’s dual school system to the ex­
tent that it was state-imposed. Nevertheless, the District 
Court ordered cross-town busing with some bus rides as 
long as three hours, necessitating staggered openings of 
schools (from 7 A. M. to 10 A. M.) and staggered closings 
(from 1:30 P. M. to 4:30 P. M.), with the result that in 
winter months young children walked to pick-up points be­
fore daylight, and walked home after dark, along streets 
sometimes unlighted and sometimes without sidewalks. 
Did the Court of Appeals err in affirming the judgment 
despite the absence of any finding by the District Court 
that such busing was necessary to eliminate state imposed 
segregation1?1

2. The District Court approved a plan for the desegrega­
tion of schools which fixed a definite percentage of racial 
mix for each school and directed no deviation therefrom 
which would lessen the degree of fixed racial mix. Was 
the Court of Appeals in error in affirming the District 
Court on the theory that Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U. S. 1, permitted (required) such 
as a matter of substantive constitutional law?

— 2 —

1 This obviously creates situations where working mothers with 
three or more school children are forced to leave for work before 
the children leave for school and children can be unattended for 
as much as two and a half hours before school,



3. Without compliance with Rule 23 of the Federal Rules 
of Civil Procedure, the District Court entered a judgment 
requiring the busing of children of a class of which none 
of the plaintiffs was a member. Did failure of the parties 
to invoke Rule 23 prior to judgment constitute a waiver 
which relieved the Court of its duty of compliance and 
thereby validated the judgment!

STATUTES INVOLVED
This petition for certiorari involves no statute, but 

involves Rule 23 of the Federal Rules of Civil Procedure 
and the Fourteenth Amendment to the Constitution of 
the United States.

STATEMENT OF THE CASE
This case originated in 1955 when suit was instituted 

by Robert W. Kelley et al., seeking desegregation of the 
Nashville school system only. In 1960 the Henry C. Max­
well, Jr., et al., case was filed and it sought desegregation 
of the Davidson County schools. Subsequently, the gov­
ernments of the City of Nashville and of Davidson County 
were consolidated, and in September, 1963, the two cases 
were likewise consolidated. Prior to September, 1963, the 
Court had approved plans for the desegregation of each 
of the two school systems which were substantially iden­
tical. After the consolidation of the governments of 
Nashville and Davidson County there was only one school 
board and it was known as the Metropolitan County Board 
of Education of Nashville and Davidson County, Ten­
nessee, which is the petitioner here.

Following petitions in the consolidated desegregation 
cases based upon the insistence that the school system 
was not complying with new concepts for desegregation 
as announced by this Honorable Court, and hearings be­
fore the then district judge, the Honorable William E. 
Miller, the petitioning school board submitted plans and



hearings were had before Judge Miller and his successor, 
Judge L. Clure Morton, which began in March of 1971, 
and continued, though not continuously, through June 9, 
1971. The hearing before Judge Morton was predicated 
upon pleadings filed by some of the original plaintiffs and 
some additional plaintiffs, and alleged that the original 
plaintiffs had either graduated or were enrolled in schools 
which were desegregated, and sought leave for additional 
students of Cameron High School to intervene and be­
come plaintiffs, which was allowed. The only named 
plaintiff or intervening plaintiff remaining in school at 
the time of the hearing and at the time of the decision 
in the District Court was a student in senior high school.

At the hearing the Court rejected the plan submitted 
by the school board and the plan submitted by plaintiffs. 
The Court requested the Department of Health, Education 
and Welfare to submit a plan and adopted the plan sub­
mitted with minor variations. Basically, the plan con­
templated cross-town busing of black students to formerly 
white schools in grades one through six and the trans­
portation of white students to formerly all black or pre­
dominantly black schools in the other grades so that the 
nonelementary grades would occupy the space vacated by 
the elementary grades during the school day. As a part 
of the plan the District Judge adopted the charts appear­
ing at pages A-21 through A-24 of Appendix ‘‘A” , which 
charts fixed a definite percentage of racial mix for each 
school, and the District Court in its opinion, at page A-ll 
of Appendix “ A” , authorized the board of education to 
make minor alterations in the boundaries, provided such 
alterations did not lessen the degree of segregation in the 
plan.

After the plan adopted by the District Court was im­
plemented, the director of schools filed a report attached 
as Appendix “ D” to this petition, which report reflects 
the hardships encountered in the execution of the plan.

— 4 —



5

ARGUMENT 

Question 1

This Court has previously pointed out in its opinions, 
and especially Swann v. Charlotte Mecklenburg Board of 
Education, supra, that the hardships of the plan adopted 
on the students being transported, the danger to the health 
and safety of the children and the extreme difficulty of 
complying with the plan, as exemplified by the staggered 
hours and opening and closing of the schools, are all mat­
ters which should be considered in determining whether 
the plan or remedy adopted by the District Court is erro­
neous. The anticipated hardships suggested to the Dis­
trict Court became apparent when the plan was imple­
mented, as shown by report filed with the District Court 
by the director of schools, attached hereto as Appendix 
“ D”. In the late fall and winter, according to the weather 
bureau, the report shows the sun ries at 6:39 A. M. on 
December 1 and sets at 4:32 P. M. In order to comply 
with the plan formulated by the District Court it was 
necessary that 133 school openings be staggered to begin 
at thirty minute intervals from 7 A. M. to 10 A. M., and 
closings staggered at thirty minute intervals with the lat­
est schools let out at 4 P. M. and 4:30 P. M. Buses serv­
ing schools opening at 7 A. M. begin their routes at 6:05 
A. M., which is thirty-four minutes before sunrise on De­
cember 1. Children must walk from their homes to desig­
nated pick-up points, and consequently those picked up at 
the beginning of the route may be on the street as much as 
an hour before sunrise. Children who live within a mile 
and a half of the school to which they are assigned (and 
for whom buses are therefore not available) have to leave 
home in time for 7 A. M. openings, necessitating many of



— 6 —

them walking to their designated school in darkness, and 
of those attending schools opening at a later time some 
will return home from school walking in darkness. In 
many instances the report shows these children are walk­
ing along streets without either street lights or sidewalks, 
or street lights and no sidewalks or sidewalks and no 
street lights (Appendix “ D”, pp. A-67-A-74).

The average time of a student on a bus transported 
across town is forty-five minutes each way and the longest 
period of time required for cross-town transportation is 
one and one-half hours each way. Thus the average time 
of a student on a bus transported across town is a total 
of one and one-half hours of riding time and the longest 
three hours of riding time. Twenty-eight thousand stu­
dents are transported from the suburbs to the inner city 
or vice versa each day, and approximately 400 round trips 
are required across town daily by the 211 buses.

It thus results that the plan adopted by the District 
Court and approved by the Court of Appeals has resulted 
in substantial hardship to the children, both from the 
point of view of time required to be on the bus and the 
point of view of health and safety, and thus trespasses the 
limits on school bus transportation indicated by this Hon­
orable Court in the opinion on the application to stay in 
the case of Winston-Salem etc. v. Catherine Scott et al., 
filed by the Honorable Chief Justice as the Circuit Justice 
on August 31, 1971, and further the opinion of this Court 
in the Swann case, 402 IT. S. 29-31.

Since Swann the test of a plan of integration is whether 
it is feasible, workable, effective and realistic. A plan 
which exposes children to the hardships enumerated above 
cannot possibly meet any of these criteria.



7

Question 2

The plan formulated by the District Court and approved 
by the Court of Appeals, as shown by the tables attached 
to the District Court’s opinion (Appendix “ A” ), clearly 
shows that the Court fixed a definite percentage of racial 
mix, at least for elementary school children (Appendix 
“ A ”, pp. A-21, A-24), from which there could be no de­
viation lessening the percentage of mix. Apparently such 
was predicated upon the same misconception of the hold­
ing of this Honorable Court as was noted by Chief 
Justice Burger in the Winston-Salem opinion on the ap­
plication to stay, where the Chief Justice in referring to 
the Swann case quoted in part as follows:

“ If we were to read the holding of the District Court 
to require, as a matter of substantive constitutional 
right, any particular degree of racial balance or mix­
ing, that approach would be disapproved and we 
would be obliged to reverse. The constitutional com­
mand to desegregate schools does not mean that 
every school in every community must always reflect 
the racial composition of the school system as a 
whole. ’ ’

Although the opinion of the District Court shows un­
mistakably by its frequent reference to the Swann opinion 
that the Court was attempting to be guided by it, the 
result is that the: Court finds in formulating the plan and 
order based thereon, especially with the elementary 
schools, that a particular degree of racial balance or mix 
was required as a matter of substantive constitutional 
right.

This error was compounded, we respectfully submit, by 
the Court of Appeals in affirming the District Court’s 
judgment.



Question 3

It is the petitioner’s insistence that it is the duty of 
the plaintiff in an alleged class action to sustain the ac­
tion in compliance with Rule 23. Upon failure of the 
plaintiff to do so, the defendant may challenge the action 
as a class action. But whether either the plaintiffs or 
the defendants challenge the action as a class action, or 
the appropriateness of the class, Rule 23 requires a find­
ing by the Court prior to judgment that the plaintiffs 
will fairly and adequately protect the interests of the class. 
There was no such finding by the District Court, nor was 
there a finding of who constituted the class.

This Honorable Court, on Monday, February 28, 1966, 
entered its order approving amendments and additions to 
the Rules of Civil Procedure which were to take effect 
July 1, 1966, and were to govern all proceedings in actions 
brought thereafter and in all further proceedings in ac­
tions then pending, except to the extent that in the opin­
ion of the Court application in a particular action then 
pending would not be feasible or would work an injus­
tice. Among the amendments and additions is the new 
Rule 23 relating to class actions, subsection (c) of which 
requires the District Court as soon as practicable after 
the commencement of an action brought as a class action 
to determine by order (emphasis ours) whether it is to be 
so maintained. Such determination would require the 
trial court to make findings contemplated by Rule 23(a), 
(b) and (c), or a finding to the effect that the applica­
tion of Rule 23 to a pending action was not feasible or 
would work an injustice. No such order was entered in 
these cases and no finding was in fact made, even though 
only one named plaintiff remained in school at the time 
of the trial of the cases in 1971, and this named plaintiff 
was in senior high school. There was no plaintiff at the 
time of the trial in 1971, representing the elementary

— 8 —



school grades or children, and none representing the 
junior high school grades or children. There was no find­
ing by the trial court of who constituted the class for 
whose benefit the action was brought or that plaintiff 
would adequately and fairly represent the interest of the 
class, as required by Buie 23(c), but the relief ordered 
was substantially different for the kindergarten and ele­
mentary grades from that ordered for the junior and 
senior high schools.

For example, at the elementary grade level the plan 
required the cross-town transportation of black children 
to white or predominantly white schools. The plan did 
not require transportation of white children, at the ele­
mentary grade level. The only plaintiff remaining in 
school at the time of the trial of this case was in senior 
high school. So it is that the elementary grades had no 
representative before the Court to speak for them, not­
withstanding the fact that the decree was to be binding 
on the elementary grade students and res adjudicata of 
their rights.

The District Court and the Court of Appeals, without 
passing upon the validity of this requirement, simply 
held that the same was waived by the plaintiff, whereas 
the rule is directed to the duty of the Court and not the 
duty of the parties. It is respectfully submitted that the 
Court of Appeals erred in affirming the District Court’s 
total disregard of Buie 23.



10 —

CONCLUSION

This petition for certiorari should therefore be granted 
so that the meaning of Swann can be further clarified 
and the application of Rule 23 to this proceeding be de­
termined for the protection of the class in the future.

Respectfully submitted

K. HARLAN DODSON

DICK L. LANSDEN
1200 American Trust Building 

Nashville, Tennessee 37201 
Attorneys for Metropolitan County 

Board of Education of Nash­
ville and Davidson County, Ten­
nessee', C. R. Dorrier, Chairman, 
et al.

Of Counsel
HOOKER KEEBLE DODSON & HARRIS 

Nashville Trust Building 
Nashville, Tennessee 37201

WALLER LANSDEN DORTCH & DAVIS 
1200 American Trust Building 

Nashville, Tennessee 37201
HAMILTON GAYDEN, JR.

American Trust Building 
Nashville, Tennessee 37201



APPENDIX



APPENDIX “ A”

MEMORANDUM OPINION

(Filed June 28, 1971)

History of Litigation
The original action seeking school desegregation of the 

Nashville school system was filed in September, 1955.1 
Finally, on July 16, 1970, after the gradual evol vein exit of 
the present status of the law, this United States District 
Court, speaking through the Honorable William E, Miller, 
held that the local school hoard had not met its affirmative 
duty to abolish the dual school system in three categories: 
pupil integration, faculty integration, and site selection 
for school construction. Kelley v. Metropolitan County 
Board of Education, 317 F. Supp. 980 (M.D. Tenn. 1970). 
The approval and implementation of a plan to correct the 
adjudicated wrongs was delayed until the Sixth Circuit 
Court of Appeals ordered immediate hearings for that 
purpose.

Background Data
The Metropolitan school system consists of three di­

visions. The elementary schools accommodate students 
from kindergarten through the sixth grade. Junior high 
accommodates grades seven through nine. Senior high 
consists of grades nine through twelve.

In the 1970-71 school year a total of 94,170 students at­
tended the Metropolitan schools. Of this number, 33,485 
were transported by the Metropolitan school system. Of

1 Reference to the separate and later consolidated actions re­
garding the City of Nashville and Davidson County systems is 
omitted for brevity.



A-2

tlie total transported, less than 4,000 were black and ap­
proximately 30,000 were white.

One hundred forty-one schools were operated in the 
Metropolitan school system during the 1970-71 school year. 
The racial breakdown of the students was:

black ........................ . . .  23,533
white ......................... . . .  71,754
other ......... ......... . . . 237

The percentage breakdown was:
black ........................,.. 24.63%
white ......................... . .. 75.12%
other .........................,.. .25%

Plans Submitted for Court Approval 

School Board Plan
The Board of Education submitted a plan for pupil in­

tegration in August, 1970. Included in this plan was a 
policy statement that the school board “ accepts as an 
ideal student racial ratio of an integrated school as one 
which is 15% to 35% black.”2

The August, 1970 plan made 49 minor geographic zone 
changes, and provided for the transportation of an addi­
tional 1162 pupils.3 The result of the plan was to leave 
the elementary schools significantly unchanged. Six of 
the 38 high schools and junior high schools would remain 
at least 50 per cent black. Fifty-seven per cent of the 
black high school and junior high school students would

2 The testimony of expert witnesses indicates that the ac­
cepted and satisfactory norm is a range from 10 per cent below 
-to 10 per cent above the percentage of black students enrolled 
in a school system.

3 McGavock, a recently erected high school, was not included 
in the August, 1970 plan.



— A-3

attend these six schools. The racial composition of two 
schools would be at least 95 per cent black and four other 
schools would be at least 90 per cent black. This would 
result in 47 per cent of the black students attending 
schools where the composition would be above 90 per cent 
black. Eight schools, accommodating 20 per cent of the 
black students, would operate with 15-35 per cent black 
students. Fifteen schools would operate with 95 per cent 
or above white students.

On the last day of the hearings, which were held on 
several days over a three-month period, the school board 
submitted an amendment providing for the selection of 
students for McGavock School by paring.

Plaintiffs’ Plan

Elementary Schools. Plain tiffs, through clustering and 
pairing, using both contiguous and non-contiguous zoning, 
proposed to effect in most elementary schools, through two 
alternate plans, a mathematical ratio in the range of 15-35 
per cent black. Plan I would require the transportation 
of 25,500 elementary students, and Plan II would require 
the transportation of 27,000 pupils. Eighty-two of 100 
schools would fall within the ideal ratio under Plan I, 
while under Plan II, 91 schools would attain the indicated 
ratio.

Secondary Schools. A model was submitted which in­
cluded sectoring, clustering and pairing to attempt to at­
tain 15-35 per cent black in the junior and senior high 
schools. In both the elementary and secondary school 
plans there is not a satisfactory description of grade 
organization, structuring of the schools, the assignment of 
the pupils, or definite zone description. The plans propose 
the mathematical result indicated, but delegate to the 
school board the actual assignment of pupils and imple­
mentation of the plan.



— A -4—

HEW Plan A as Amended4

At the request of the Court, the Department of Health, 
Education and Welfare submitted a plan with two alter­
nates. The principal plan was designated as Plan A. 
This plan incorporates geographic zone changes, cluster­
ing, pairing (both contiguous and non-contiguous), and 
grade restructuring.

Elementary Schools, Five schools would be closed.5 Sev­
enty-four schools would have a racial percentage of 16-41 
per cent black. Twenty-two schools which are located in 
the far reaches of the county would have a racial percent­
age of 0-11 per cent black. Three of those 22 would have 
no blacks. Under Plan A there would be no elementary 
school in the system with a black student enrollment of 
more than 41 per cent. Fifty-nine per cent of the black 
students in the system would attend schools with a black 
student enrollment of between 35 and 41 per cent. Three 
per cent of the black students in the system would attend 
schools with a black student enrollment of less than 15 
per cent. Twenty-four per cent of the total number of 
white students in the system would attend schools in which 
black enrollment is less than 5 per cent. One per cent of 
the total black student enrollment in 16 schools, or 125 
students, would be enrolled in schools with less than 5 
per cent black student enrollment.

Under this plan, approximately 22,000 elementary school 
students would be eligible for school-provided transporta­
tion. This is approximately 10,500 more than the Board

4 Adjustments were made to shorten transportation routes, 
to incorporate the school hoard plan for McGavoek School, to 
adjust the student makeup of Pearl High School.

5 Three of the five schools to he closed are rated unsatisfac­
tory by the consultants hired hy the school board. The other 
two are listed as inadequate.



transported in 1970-71, and 9,700 more than those who 
would be transported under the Board’s proposed plan. 
Three thousand five hundred fewer students would be 
transported under HEW Plan A than under the plaintiffs’ 
Plan I, and some 5,000 fewer than would be transported 
under plaintiffs’ Plan II.

Junior High Schools. This plan incorporates the school 
board amendment to the August, 1970 plan. Eighteen of 
25 schools would have a racial composition of 20-40 per 
cent black. Seven schools would have a composition rang­
ing from 0-5 per cent black. These seven schools are in 
the outer reaches of the county. Some former senior high 
schools would be changed to junior high schools. Two 
high schools would be closed.

Senior High Schools. This plan incorporates the school 
board amendment to the August, 1970 plan. Central High 
School would be closed. MaGavock High School is to be 
opened. Of the 18 schools, 11 would have 18-44 per cent 
black. One would have an 11 per cent enrollment of 
blacks and six would be virtually all white. These all- 
white schools are located in the outer reaches of the 
county.

An analysis of the HEW amended plan with regard to 
the secondary schools reflects that:

(1) no school would operate with more than 44 per cent 
black;

(2) 29 of the 43 schools would operate within the range 
of 15-44 per cent black, with one additional school having 
11 per cent black;

(3) 13 schools, primarily in the outer reaches of the 
county, would have 95 per cent or more white;

(4) 67 per cent of the schools, housing 90 per cent of 
the black students, would operate ip the 15-44 per cent 
black range;



— A-6 —

(5) transportation would be required for 26,673 junior 
and senior high school students; and

(6) including the transportation necessary for Mc- 
Gavoek School, 2,838 more secondary pupils would re­
quire transportation than were transported in the 1970-71 
school year.

Objective, Test, and Methods
Objective

“ The objective today remains to eliminate from 
public schools all vestiges of state-imposed segrega­
tion.” Swann v. Charlotte-Mecklenburg Board of Ed­
ucation, .. . U.S. . . . ,  28 L.Ed.2d 554, 566 (April 20, 
1971).

The Supreme Court has stated that “ [t]he objective is 
to dismantle the dual school system,” Swann, supra, at 
573, “ . . . to eliminate invidious racial distinctions,” 
Swann, supra, at 568, and “ . . . t o  achieve the greatest 
possible degree of actual desegregation, taking into ac­
count the practicalities of the situation.” Davis v. Board 
of School Commissioners, . . .  U.S. . . . ,  28 L.Ed.2d 577, 
581 (April 20, 1971),

Test
A plan “ that promises realistically to work, and prom­

ises realistically to work now” is required. Davis, supra, 
at 581, quoting Green v. County School Board, 391 U.S. 
430 (1968). A plan “ is to be judged by its effectiveness.” 
Swann, supra, at 572; Davis, supra, at 581. A plan “ is 
not acceptable simply because it appears to be' neutral.” 
Swann, supra, at 573.

Methods to Accomplish Objective
The following methods have been acknowledged by the 

United States Supreme Court: (1) restructuring of at­
tendance zones, both contiguous and non-contiguous; (2)



A-7 -

restructuring of schools; (3) transportation; (4) sector­
ing; (5) non-discriminatory assignment of pupils; (6) 
majority to minority transfer; and (7) clustering, group­
ing and pairing. Swann, supra-, Davis, supra.

Discussion of Plans Submitted
The pupil integration plan submitted by the school 

board, viewed in the most favorable light, constitutes 
mere tinkering with attendance zones, and represents only 
a token effort. It clearly falls short of meeting the ob­
jectives and tests set out in the decisions of the United 
States Supreme Court. Swann v. Charlotte-Mecklenburg 
Board of Education, supra-, Davis v. Board of School Com­
missioners, supra-, Green v. County School Board, 391 
U.S. 430 (1968). In effect, the defendant has made no 
effort to meet its affirmative duty to establish a unitary 
school system “ in which racial discrimination would be 
eliminated root and branch.” 6 * 8 Green v. County School

6 Based on defendants’ school statistics for 1969-70, the stu­
dent enrollment was 95,789. The total majority to minority re­
zoned under this plan is:

Elementary
whites gained in black schools 301 
blacks gained in white schools 457

758 majority to minority 
transfer in 
elementary

Junior High
whites gained in black schools 430 
blacks gained in white schools 400

830 majority to minority 
transfer in junior 
high

Senior High
whites gained in black schools 73 
blacks gained in white schools 735

808 majority to minority 
transfer in senior 
high



— A-8

Board, supra, at 437-38; quoted in McDaniel v. Barresi, 
. . .  U.S. . . 2 8  L.Ed.2d 582, 585 (April 20, 1971).

Since the defendants have, in effect, failed to submit a 
constitutionally sufficient plan, the Court must examine 
the other plans. The plaintiffs’ plans as to elementary 
schools are adequate in one respect. Under Plan I, 82 
out of 100 schools would be within the indicated range 
of 15-35 per cent black, which was set by the school 
board. Plan II would satisfy this standard in 91 out of 
100 schools. This plan, however, has two features which 
are objectionable to the Court., The first is that actual 
assignment of student, i.e., the locations from which they 
come, is left to the school board. The historical reluc­
tance by the school board to solve this problem instills 
a lack of confidence in their implementation of this aspect 
without close supervision. The second objection is that 
some schools in the outer reaches of the county are in­
cluded. The Court finds that costs and other problems 
incident to transportation make this feature of plaintiffs’ 
plan impractical and not feasible.

Each and every school is not required to be integrated. 
The test is a unitary school system. Swann, supra. The 
practicality and feasibility of a plan is a material con­
sideration. Swann, supra.

The cost of the transportation of students and the un­
necessary disruption of the students are proper consid­
erations. The Court finds that distance and transporta­
tion difficulties make the integration of these schools 
highly impractical.

Plaintiffs plan for the desegregation of secondary 
schools, as in their elementary plan, was a model using 
sectoring, zoning (contiguous and non-eontiguous), and 
pairing to accomplish the indicated racial balance. In 
neither the elementary plan nor the secondary model is 
there a description of grade organization, structuring of



— A-9 —

the schools, the assignment of pupils, or proper descrip­
tion of zoning. For the reasons set forth as to the ele­
mentary school programs, the secondary school plan of 
the plaintiffs is rejected.

The plans of the plaintiffs and defendants being re­
jected for the reasons stated, the HEW plan is the only 
realistic plan remaining before the Court. As a result 
of the evidence produced at the hearing, the HEW plan 
was amended to effect the following changes:

(1) adjustment of the black percentage of North High 
School from 65 per cent black to 44 per cent black, and 
the reduction at Pearl High School to 33 per cent black, 
with corresponding adjustments in Stratford, Maplewood, 
and other schools;

(2) shortening the time of transportation of certain 
pupils; and

(3) incorporation of the McGavoek High School phase 
of the defendants’ amended plan.

On the last day of the hearings the defendants pre­
sented an amendment to its August, 1970 plan. This 
amendment provided that McGavoek would be a compre­
hensive high school serving an area where several junior 
high schools are located. Although this amendment ap­
plied only to a small sector of the secondary school sys­
tem, it reflected the beginning of an awareness by the 
defendants of their affirmative constitutional responsibil­
ity. The defendants indicate a desire to make similar 
proposals in the future, which desire the Court wishes 
to encourage. If the Board of Education had genuinely 
wished to establish a unitary school system, it had avail­
able to it the superior resources and assistance to do so.

The realistic and effective approach of the defendants 
to the McGavoek School area was incorporated as an 
amendment to the HEW plan, despite the fact that it



A-10 —

requires more transportation, over longer distances, than 
was required by the original HEW plan. The Court feels 
that where administrative goals can be satisfied without 
hampering the constitutional objectives to be accom­
plished, such goals should control.

Action of the Court
The Court hereby adopts the HEW Plan A as to ele­

mentary schools. This plan utilizes all of the methods 
previously enumerated. The map showing the geographic 
zones is on file with the clerk. This map also reflects the 
zoning, pairing and clustering to be employed. The charts 
appearing at pages 34 through 41 of the HEW plan, as 
filed with the clerk, are adopted as a part of said plan 
and will be followed in the implementation thereof.

Simultaneously with this Memorandum Opinion, the 
Court has filed maps showing the geographic zones of the 
junior and senior high schools. Likewise, charts are filed 
titled Table 1, Senior High Schools, and Table 2, Junior 
High Schools. These charts will be followed in the im­
plementation of the plan.

Li the implementation of the plans, the transparent 
maps can be placed as overlays on the student locator 
map. Thus the geographic boundaries of the zones be­
come clear. In effect, the Court is providing the defend­
ant school board a map overlay for each of the grade di­
visions, namely the elementary schools, the junior high 
schools, and the senior high schools. These overlays indi­
cate grade and school groupings, where such are made, 
and approximate areas for attendance. Accompanying 
tables show the approximate numbers of pupils involved. 
The responsibility for determining the precise boundary 
lines is placed upon the defendant Board of Education. 
A written description of such boundaries, together with 
tables showing approximate numbers of pupils by race in



A -U  —

each school, shall be filed with this Court by August 1, 
1971. The defendant Board of Education may make minor 
alterations in boundaries provided such alterations do not 
lessen the degree of desegregation in the plan, ordered by 
the Court.

The Court is aware that the cost of implementing any 
plan is a major concern,. Much proof was introduced as 
to the financial impact of any plan which requires trans­
portation. Since the defendants have consistently trans­
ported large numbers of students to promote segregation, 
some adjustment must be made to reverse this unconsti­
tutional practice. Practical solutions are available, such 
as the multiple use of buses, staggered hours for school 
opening, and staggered hours for individual grades.

“ We do not read Swann and Davis as requiring 
the District Court to order the Board to provide ex­
tensive transportation, of pupils to schools all over 
the city, regardless of distances involved, in order 
to establish a fixed ratio in each school.” Northcross 
v. Board of Education, Civil Nos. 20,533, 20,539 (6th 
Cir., filed June 7, 1971).

This order does not contemplate cross-transportation of 
pupils within a grade level in implementation of this 
order. If such crossing occurs, the Board may make 
minor adjustments in, zones or may make application to 
the Court for reconsideration of the zones. It is further 
contemplated that the transportation routes in the plan 
implemented by this order permit uninterrupted trans­
portation of children from home pickup points to and 
from the school attended. This is not to preclude the 
Board in the exercise of administrative discretion and 
consideration of transportation economics, from establish­
ing transfer routing and collection points.

The Court is aware that some “ all-white” schools re­
main in the outlying areas of the county. However, based



A-12

upon practical considerations, common sense and judg­
ment dictate that they should not be integrated. Inte­
gration of those particular schools would not be feasible, 
both from a distance and a cost standpoint. However, to 
prevent the use of these schools as an avenue of resegre­
gation, certain restrictions on their use will be herein­
after set forth.

Special Provisions

Majority to Minority Transfer Policy
After this plan is implemented, there will be no schools 

which have a majority of black students. Because of 
population changes or other circumstances, however, this 
situation might occur in the future. Therefore, the fol­
lowing policy shall be a part of the plan to be imple­
mented.

Whenever there shall exist schools containing a ma­
jority of black students, this school board shall permit 
a student (black or white) attending a school in which 
race is. the majority to choose to attend the closest school 
where his race is a minority. The Board of Education 
will provide all such transferring students free transpor­
tation and will make space available in the school to 
which he desires to move. The Board will notify all 
students of the availability of such transfers.
Faculty Integration

On July 16, 1970, Judge Miller in this case stated:
“ It is well recognized that faculty and staff inte­

gration is ‘an important aspect of the basic task of 
achieving a public school system wholly free from 
racial discrimination.’ United States v. Montgomery 
County Board of Education, 395 U.S. 225, 89 S.Ct. 
1670, 23 L.Ed.2d 263 (1969); see Bradley v. School 
Board of City of Richmond, 382 U.S. 103, 86 S.Ct, 224,



A-13

15 L.Ed.2d 187 (1965). In order to implement this 
mandate, the Court concludes that in the instant case 
faculties must he fully integrated so that the ratio 
of black and white faculty members of each school 
shall be approximately the same as the ratio of black 
to white teachers in the system as a whole. Robinson 
v. Shelby County Board of Education, supra-, Nesbit 
v. Statesville City Board of Education, 418 F.2d 1040 
(4th d r .  1969); Stanley v. Darlington County School 
District and Whittenberg v. Greenville County School 
District, 424 F.2d 195 (4th Cir. 1970); Pate v. Dade 
County School Board, 307 F. Supp. 1288 (S.D. Fla. 
1969); contra, Deal v. Cincinnati Board of Education, 
supra. But see Goss v. Board of Education of the 
City of Knoxville, 406 F.2d 1183 (6t,h Cir. 1969).” 
Kelley v. Metropolitan County Board of Education, 
supra, at 991.

% #  #  *  *  #  #

“ It is the conclusion of the Court that the present 
policy of faculty desegregation, applied by defendant 
is constitutionally inadequate. That policy must be 
altered to comply with the standards set forth above. 
A similar policy also must be applied to all other 
personnel employed by defendant school board.” 
Kelley v. Metropolitan County Board of Education, 
supra, at 992.

The court-required ratio for teachers in each school 
was fixed at that time to be 80 per cent white to 20 per 
cent black. Approximately 94 schools are not currently 
operating at this ratio. In most schools, this ratio could 
be accomplished by moving one or two teachers. Upon 
the implementation of the plan presently adopted by the 
Court, there should be no difficulty in meeting the court 
order of 1970. Therefore, the defendants are required to 
effect said ratios for the next school year beginning on 
or about September 1, 1971.



The school board shall immediately announce and im­
plement the following policies':

1. The principals, teachers, teacher-aides, and other 
staff who work directly with children at a school 
shall be so assigned that in no case will the racial 
composition of a staff indicate that a school is in­
tended for black students or white students. The 
school board shall, to the extent necessary to carry 
out this desegregation plan, direct members of its 
staff to accept new assignments as a condition to 
continued employment.

2. Staff members who work directly with children, 
and professional staff who work on the administra­
tive level will be hired, assigned, promoted, paid, 
demoted, dismissed, and otherwise treated without 
regard to race, color, or national origin.

3. If there is to be a reduction in the number of 
principals, teachers, teacher-aides, or other profes­
sional staff employed by the school system which will 
result in a dismissal or demotion of any such staff 
members, the staff member to be' dismissed or demoted 
must be selected on the basis of objective and reason­
able non-discriminatory standards from among all the 
staff of the school system. In addition, if there is any 
such dismissal or demotion, no staff vacancy may be 
filled through recruitment of a person of a race, color, 
or national origin different from that, of the individual 
dismissed or demoted, until such displaced staff mem­
ber who is qualified has had an. opportunity to fill the 
vacancy and has failed to accept an offer to do so.

Prior to such a reduction, the school board will de­
velop or require the development of nonracial objec­
tive criteria to be used in selecting the staff member 
who is to be dismissed or demoted. These criteria

— A-14 —



A-15 —

shall be available for public inspection and shall be 
retained by the school board. The school board also 
shall record and preserve the evaluation of staff mem­
bers under the criteria. Such evaluation shall be 
made available upon request to the dismissed or de­
moted employee.

“ Demotion” as used above includes any reassign­
ment (1) under which the staff member receives less 
pay or has less, responsibility than under the assign­
ment he held previously, (2) which requires a lesser 
degree of skill than did the assignment he held previ­
ously, or (3) under which the staff member is asked to 
teach a subject or grade other than one for which he 
is certified or for which he has had substantial ex­
perience within a reasonably current period. In gen­
eral, depending upon the subject matter involved, 
five years is such a reasonable period.

Construction, Renovation and Location of Schools

On July 16, 1970, the United States District Court
stated:

“ The constitutional requirement of desegregation 
also finds application in the area, of construction, 
renovation, and location of schools. School boards are 
required consciously to plan school construction and 
site location so as to prevent the reinforcement or 
recurrence of a dual educational system. See, e.g., 
Felder v. Harnett County Board of Education, 409 
F.2d 1070 (4th Cir. 1969); Swarm, v. Charlotte-Meck- 
lenburg Board of Education, 306 F. Supp. 1291, 1299 
("W.D. N.C. 1969); Pate v. Dade County School Board, 
307 F. Supp. 1288 (S.D. Fla. 1969). Courts may prop­
erly restrain construction and other changes in the 
location or capacity of school properties until a show­



A-16

ing is made that such changes will promote rather 
than frustrate the establishment of a unitary school 
system. This Court in the past has stated that school 
boards may be enjoined from planning, locating or 
constructing new schools or additions to existing 
schools in such manner as to conform to racial resi­
dential patterns or to encourage or support the growth 
of racial segregation in residential patterns. Such 
operations, rather, are to be conducted ‘in. such man­
ner as to affirmatively promote and provide for both 
the present and future an equitable distribution of 
racial elements in the population of each School Sys­
tem. ’ Sloan v. Tenth School District of Wilson 
County, Civ. No. 3107 (M.D. Te-nn., Oct. 16, 1969).

“ Looking to the facts of the instant case, it be­
comes apparent that defendant’s decisions, on the site 
selection and construction of its newest schools were 
not designed to promote desegregation. Since 1963, 
defendant has built four new elementary schools 
(Dodson, Cranberry, Lake View, and Paragon Mills), 
eight new junior high schools (Apollo, Bass, Ewing 
Park, McMurray, John T. Moore, Neely’s Bend, Bose 
Park, and Wright), and one new high school (Du­
pont). Of these 13 schools, Bose Park, with an en­
rollment of 527 black students and 11 white students, 
is virtually all-Negro. The remaining twelve schools, 
however, are, on the average, 97% white, with some- 
having a black enrollment as high as 10%. Three 
elementary schools (Cora, Howe, Fall-Hamilton, and 
H. G. Hill) and. one- high school (McGavock) are- cur­
rently under construction. Enrollment estimates indi­
cate that all of these schools will be predominately 
white.

“ Seven elementary schools, two high schools, and 
one school for the physically handicapped, are cur-



A-17 —

rently in the planning stage. The two high schools 
are being planned for predominantly black student 
bodies. Five of the seven elementary schools are to 
be constructed in virtually all-white residential areas, 
while the remaining two are projected for location 
in all-black or predominantly black residential areas. 
Thus, from the foregoing, it is apparent to the Court 
that defendant must consider making substantial al­
terations in its school construction policies in order 
to comply with constitutional requirements.

“ The Court is of the opinion that the following 
course of action must be taken by defendant. First, 
those new schools on which construction work was 
actually in progress as of November 6, 1969,13 may be 
completed. Though this action may not produce an 
ideal result in light of the goal of integration, it will 
prevent unnecessary economic waste. Also, since, 
these new schools will be subject to the same zoning 
policies prescribed above, their segregative influences 
should be lessened. Second, in instances where actual 
construction had not begun as of November 6, 1969, 
defendant must revise its plans where necessary in 
relation to these proposed schools so as to find a loca­
tion that will maximize student integration. Finally, 
in the future all construction plans as well as plans 
for closure of old schools must be governed by the 
principles stated herein. The purpose of the Court in 
making such a requirement is to insure that such plans 
will serve the purpose of establishing a unitary school 
system. See Sloan v. Tenth School District of Wilson 
County, supra.” (Footnote omitted.) Kelley, supra, 
at 992-93.

“ !3 This is the date of the Temporary Restraining Order 
issued by this Court to enjoin defendant from further con­
struction, expansion, or closure of schools pending the out­
come of this suit.”



A-18 —

New Construction. The Board has proposed for approval 
the erection of two comprehensive senior high schools, one 
in the Joelton school area, and the other in the Goodletts- 
ville area.

In connection with future planning, the Board employed 
a team of consultants to evaluate the existing school 
structures and to project the location of new structures. 
Prior to the submission of these recommendations, the 
Court requested, and two administrators of the Board lo­
cated on a map, the ideal locations for comprehensive 
schools. When the team of consultants later made its re­
port, their projections generally agreed with those of the 
school administrators. They found that new comprehen­
sive schools should be located in the general area of the 
proposed inner-city expressway loop known generally as 
“ Briley Parkway.” The reason for this agreement is 
obvious when the pupil locator map is examined. Briley 
Parkway is generally the divider between the inner-city 
pupils and the outer-county pupils. It is roughly the half­
way division. By the establishment of schools in this 
area, the integration of schools would be effected naturally 
and thereby minimize transportation.

Therefore, the Court finds that the erection of a compre­
hensive school in the Joelton area, with geographic zones 
drawn in accordance with the testimony in court, will 
maximize student integration. Upon submission of proper 
zoning and pupil assignment, this construction will be 
approved.

The proposed Goodlettsville school, a comprehensive 
high school, is located in an all-white community and is 
not located near the dividing line between inner-city popu­
lation and outer-county population. By referring to the 
pupil locator map, it clearly appears that the erection of 
this school would tend to promote segregation. Thus the 
erection of this school in its proposed location is hereby



A-19

enjoined. If the Board desires to establish another com­
prehensive high school, subsequent court approval may be 
obtained by submitting an appropriate location and proper 
geographic zones, which will achieve and perpetuate inte­
gration.

Another proposal is the erection of a school for the 
physically handicapped at 2500 Fairfax Avenue. This 
facility is to be erected near Vanderbilt University. The 
availability of professional services from Vanderbilt Uni­
versity and Vanderbilt Hospital is stressed. The plaintiffs 
assert that said project should be located in a “ halfway” 
position between Vanderbilt University, Meharry Medical 
College, and Fisk University.

The Court feels that the facility will have little, if any, 
effect on achieving a unitary school system. This Court 
will not substitute its judgment for that of the Board, and 
the Board’s proposal is approved.

Additions and Renovations. An application has been 
made for permission to acquire additional property for 
Hillsboro School so as to transform Hillsboro into a com­
prehensive high school. This application is denied for 
the same reasons that the Goodlettsville school was not 
approved.

Portable classrooms, referred to generally as “ port­
ables,” have been used by the Board to house students in 
schools which were all-white or had received only token 
integration when there were vacant rooms in predomi­
nantly black schools. In effect, portables have been used 
to maintain segregation. In the future, portables shall be 
used only to achieve integration and the Board is hereby 
so enjoined.

In the plan adopted by the Court, certain schools in the 
outlying areas of the school district remain virtually all 
white. By reason of the past conduct of the Board the



— A-20 —

Court hereby sets forth the following restrictions to pre­
vent these schools from becoming vehicles of resegrega­
tion. It is ordered that the schools, which have less than 
15 per cent black pupils after the implementation of the 
plan, shall not be enlarged either by construction or by 
portables, and shall not be renovated without prior court 
approval. Furthermore, no additional schools shall be 
erected without prior court approval.

By making the above restrictions, this Court does not 
imply that it will make “ year-by-year adjustments of the 
racial composition of student bodies once the affirmative 
duty to desegregate has been accomplished and racial dis­
crimination through official action is eliminated from the 
system.” Swann, supra, at 575.

The parties will draw and submit an order to the Court 
within fifteen (15) days. However, without said order 
this Memorandum Opinion is self-executing and must be 
implemented for the school year beginning on or about 
September 1, 1971. The Court will retain jurisdiction of 
this case. No stay will be granted by this Court. Swann, 
supra, at 570; United States v. Board of Public Instruc­
tion. 395 F.2d 66 (5th Cir. 1968); Brewer v. School Board, 
397 F.2d 37 (4th Cir. 1968).

L. CLURE MORTON 
United States District Judge



A-21

Table 4

COMPOSITE BUILDING INFORMATION FORM 
ELEMENTARY SCHOOLS

Date.......................
Students

Name of School Grades CAP. TRANS. W N T %B

McKissack 5-6 990 516 482 373 955 39
McCann 1-4 690 108 417 273 690 39
Cockrill 1-4 510 0 241 36 277 36
Charlotte Park 1-4 870 164 556 306 862 36
Riehland 1-4 510 136 241 136 377 36

Park Avenue 5-6 420 272 277 111 388 29
Sylvan; Park 1-4 660 164 340 157 497 32

Vaught 1-4 360 114 212 114 326 35

Head 5-6 1080 350 329 211 540 39
Ransom 1-4 390 202 252 154 406 38

Eakin 1-4 570 130 238 145 383 38

Woodmont 1-4 360 205 204 128 332 38

Table 4

COMPOSITE BUILDING INFORMATION FORM 
ELEMENTARY SCHOOLS

Students
%BName! of School Grades CAP. TRANS. W N T

W averly-Belmont 5-6 450 294 310 160 470 34

Stokes 1-4 390 67 157 91 248 37

Burton 1-4 540 316 234 137 371 37

J. Green 1-4 390 128 251 90 341 34

Percy Priest 1-6 660 519 471 188 659 28

Robertson Academy 5-6 210 126 138 55 193 28

Glendale 1-4 420 246 263 99 362 27

C.; Lawrence 6 1020 283 308 160 468 34

Murrell 5 510 272 279 161 440 37
Fall-Hamilton 1-4 480 86 245 168 461 36
Berry 1-4 450 114 207 115 322 36

Woodbine 1-4 510 144 248 143 391 36
Turner 1-4 630 139 247 129 376 34

Glenelifi 1-4 480 133 254 129 383 34

Comments

Contiguous 
Contiguous 
306-b from A 
136-8 from B

Contiguous 
114-b from C

153 b from D 
Contiguous 
128 b from E

Comments

Contiguous 
18w-137b from H 
16w-90-b from G

12-w-188-b from F

Contiguous 
l-w-113b from L 
l-w-143-b from J 
8w-129b from I 
4-w-128bi from K



Table 4

COMPOSITE BUILDING INFORMATION FORM 
ELEMENTARY SCHOOLS

Date.......................

Name of School Grades CAP. TRANS. W
Students

N T %B Comments

Napier 6 780 289 289 183 472 39
Johnson 5 720 333 328 192 520 37
Allen 1-4 540 585 319 196 515 38 Contiguous
Glennview 1-4 630 241 371 235 606 39 6w-235b from M
Glengarry 1-4 360 146 211 140 351 39 140-b from N
Whitsitt 1-4 600 390 390 244 634 38 64-w-244b from 0

Early 5-6 840 367 370 188 558 34 N. C.
H. G. Hill 1-4 600 401 304 199 503 39 N. C.
Brookmeade 1-4 570 371 335 198 533 37 N. C.

Ford Green 5-6 1050 437 428 259 687 38 N. C.
Parmer 1-4 540 316 223 154 377 40 N. C.
West Meade 1-3 510 367 294 180 474 38 N. C.
Binkley 1-4 510 367 305 184 489 38 N. C.
P Mills

Date.......................

Name of School Grades

Table 4

COMPOSITE BUILDING INFORMATION 
ELEMENTARY SCHOOLS

Students
CAP. TRANS. W N T

FORM

%B Comments

Wharton 5-6 1590 426 429 179 608 29 N. C.
Binkley 1-4 840 248 486 224 710 32 N. C.
Crieve Hall 1-4 540 125 275 125 400 31 N. C.

Buena Vista 5-6 660 415 448 184 632 29 N. C.
McGavock 1-4 600 358 395 193 588 33 N. C.
Hickman 1-4 660 217 444 182 626 29 N. C.

Fehr 5-6 360 211 236 92 328 28 N.C.
Stanford 1-4 630 358 391 184 575 32 N. C.

Kirkpatrick 5-6 540 20 305 126 431 30
Warner 1-4 1020 0 663 302 965 31

Caldwell 5-6 1110 375 390 219 609 36 N. C.
Lockeland 1-4 630 252 397 238 635 38 238-b-14-w from
Rosebank 1-4 600 200 306 180 486 38 N.C.



A-23 —

Table 4

COMPOSITE BUILDING INFORMATION FORM 
ELEMENTARY SCHOOLS

Name of School Grades CAP. TRANS.

Ross K-6 360 13

Howe K-6 720 1

Dan Mills 5-6 540 191
Dalewood 3-4 660 51
Inglewood 1-2 720 191

Cotton K-6 420 0

Glenn 5-6 630 324
Baxter 3-4 690 475
Tom, Joy 1-2 720 375

Haynes 5-6 900 280
Shwab 1-4 480 115
Gra-Mar 1-4 420 188

W
Students

N T % B Comments
195 89 284 31 No change

474 127 601 21 No change

325 115 440 26
400 116 516 22
408 147 555 27

315 114 429 26

411 238 649 37
434 245 679 36
408 240 648 37

293 173 466 87
359 133 492 27 Contiguous
265 110 375 29 (Illegible)

Table 4

COMPOSITE BUILDING INFORMATION FORM 
ELEMENTARY SCHOOLS

Name of School Grades CAP. TRANS.

Kings Lane 5-6 660 409
Brick Church 1-4 690 302
A, Green 1-4 300 112
Bellshire 1-4 570 132

Bordeaux 1-6 690 153

Jordonia 4-6 240 160
Wade 1-3 240 155
*Chadwell 1-6 480 212
*Stratton 1-6 780 212

Students
W N T %B Comments
405 229 634 36
417 295 715 41 Contiguous
187 109 296 37 106-b-7-w from W
221 129 359 37 128-b-2-w from X

494 186 680 27 No Change

155 46 201 23
171 41 212 19
405 135 540 25 * These schools include
694 129 823 16 former enrollment from 

Jones in: grades 1-4 
divided equally. Two-3 
portables will be needed 
at each school.



— A-24

Table 4

COMPOSITE BUILDING INFORMATION FORM 
ELEMENTARY SCHOOLS

Date....................................................
Students

Name of School Grades CAP. TRANS. W N T %B

Harpeth Valley K-6 600 460 555 15 570 3
Granberry K-6 660 402 569 37 606 6
Tusculum 1-6 630 0 601 19 620 3
Cole 1-6 780 273 693 13 706 2
Haywood 1-6 600 84 477 64 541 11
Paragon' Mills 1-6 930 366 851 1 852 .1
Una K-6 630 486 623 20 643 3
Lakeview 1-6 840 258 778 24 802 2
Dodson K-6 690 586 695 53 748 7
Hermitage 1-6 810 0 826 0 826 0
A. Jackson K-6 570 161 359 72 431 16
Pennington K-6 600 171 586 4 590 .6
N eely’s Bend 1-6 480 300 404 39 443 8
Donelson K-6 570 154 427 3 430 .6
DuPont 1-6 780 310 634 19 653 3

Table 4

COMPOSITE BUILDING INFORMATION FORM 
ELEMENTARY SCHOOLS

Date............................. ......................
Students

Name of School Grades CAP. TRANS. W N T %B

Amqui 1-6 660 100 673 3 676 .4
Old Center K-6 540 228 443 1 434 .2
Gateway 1-6 300 202 508 2 510 .4
Goodlettsville K-6 540 221 520 30 550 5
Union Hill 1-6 210 145 190 0 190 0
Joelton 1-6 390 346 398 0 398 0
Narny 1-6 330 150 189 0 189 0

Social (Illegible) Schools Unchanged
Total Transported.......................22,065

(Illegible)
(Illegible)
(Illegible)
Pearl Discontinued
Penard Discontinued
Siemens Discontinued
Elliott Discontinued
Jones Discontinued

Comments

Comments



A-25 —

APPENDIX “ B”

Nos. 71-1778-79

United States Court of Appeals 
for the Sixth Circuit

Robert W. Kelley, et al., Henry ' 
C. Maxwell, Jr., et al.,

Plaintiffs-Appellees,

v.

Metropolitan County Board of Ed­
ucation of Nashville and David­
son County, Tennessee, C. R. 
Dorrier, Chairman, et al.,

Defendants-Appellants.

A p p e a l , from the 
United States Dis­
trict Court for the 
Middle District of 
Tennessee, Nash­
ville Division.

Decided and Piled May 30, 1972

Before: E dwards, Celebeezze and McCbee, Circuit Judges

E dwards, Circuit Judge. In this case we do not write on 
a clean slate. What follows describes an incredibly lengthy 
record and settled law pertaining to segregated schools. 
We start with this latter, as recited in the United States 
Constitution and in three historic, unanimous decisions of 
the United States Supreme Court—the last dated 1971.

“ [N]or shall any State . . . deny to any person 
within its jurisdiction the equal protection of the 
laws.” U.S. Const, amend. XIY, § 1.



— A-26

We conclude that in the field of public education the 
doctrine of “ separate but equal” has no place. Sepa­
rate educational facilities are inherently unequal. 
Therefore, we hold that the plaintiffs and others simi­
larly situated for whom the actions have been brought 
are, by reason of the segregation complained of, de­
prived of the equal protection of the laws guaranteed 
by the Fourteenth Amendment. Brown v. Board of 
Education, 347 U.S. 483, 495 (1954).

[A] plan that at this late date fails to provide 
meaningful assurance of prompt and effective dis­
establishment of a dual system is also intolerable. 
“ The time for mere ‘deliberate speed’ has run out,” 
Griffin v. County School Board, 377 IT. S. 218, 234; 
“ the context in which we must interpret and apply 
this language [of Brown II] to plans for desegrega­
tion has been significantly altered.” Goss v. Board of 
Education, 373 U. S. 683, 689. See Calhoun v. Lati­
mer, 377 U. S. 263. The burden on a school board 
today is to come forward with a plan that promises 
realistically to work, and promises realistically to 
work now. Green v. County School Board of Kent 
County, 391 U.S. 430, 438-39 (1968).

All things being equal, with no history of discrimi­
nation, it might well be desirable to assign pupils to 
schools nearest their homes. But all things are not 
equal in a system that has been deliberately con­
structed and maintained to enforce racial segregation. 
The remedy for such segregation may be administra­
tively awkward, inconvenient, and even bizarre in some 
situations and may impose burdens on some; but all 
awkwardness and inconvenience cannot be avoided in 
the interim period when remedial adjustments are 
being made to eliminate the dual school systems.



— A-27 —

Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 28 (1971).

After 17 years of continuous litigation the Metropolitan 
County Board of Education of Nashville and Davidson 
County, Tennessee, appeals from a final order of the 
United States District Court for the Middle District of 
Tennessee requiring the School Board to take the neces­
sary steps to end the racially separated school systems 
which it had previously been found to be operating. This 
order was a direct result of an order of this court approv­
ing the District Court’s findings of violations of equal pro­
tection and vacating a stay of proceedings. In it we had 
noted:

[T]he instant case is growing hoary with age. It is 
actually a consolidation of two cases. The first case, 
Kelley v. Board of Education of the City of Nashville, 
Civ. A. No. 2094, was filed in September of 1955; and 
the second case, Maxwell v. County Board of Educa­
tion of Davidson County, Civ. A. No. 2956, was filed 
in September of 1960. A whole generation of school 
children has gone through the complete school system 
of Metropolitan Nashville in the intervening years 
under circumstances now determined to have been 
violative of their conditional rights. A second gener­
ation of school children is now attending school un­
der similar circumstances—and the remedy is not in 
sight. Kelley v. Metropolitan Board of Education of 
Nashville, Tennessee, 436 F.2d 856, 858 (6th Cir. 
1970).

The order of the District Judge is the first comprehen­
sive and potentially effective desegregation order ever 
entered in this litigation. The District Judge tells us that 
now the remedy is at least in sight.



— A-28 —

THE APPELLATE ISSU ES

On appeal defendants contend 1) that the District Court 
had no jurisdiction to hear and determine this case be­
cause of failure to comply with Rule 23 of the Federal 
Rules of Civil Procedure and because of changes in the 
status of the original party plaintiffs since the commence­
ment of these suits; 2) that the District Court’s order is 
invalid because it requires integration of schools accord­
ing to a fixed racial ratio, in violation of the rules set out 
in Swann v. Charlotte-Mechlenburg Board of Education, 
supra at 23, 24; and 3) that the plan ordered into effect 
should be reconsidered because of what the defendant 
School Board claims to be adverse effects on the health 
and safety of school children involved.

Plaintiffs as cross-appellants claim 1) that the District 
Court erred in adopting the Department of Health, Edu­
cation and Welfare plan when the plan proposed by 
plaintiffs would have achieved a g r e a t e r  degree of inte­
gration; and 2) that the HEW plan should have been 
rejected because it places the burden of desegregation 
disproportionately upon Negro children.

HISTORY OF THE NASHVILLE-DAVIDSON  
COUNTY CASE

The history of school desegregation from Brown v. 
Board of Education, supra, to date can be traced in this 
case in the proceedings in the District Court, in this Court, 
and in the United States Supreme Court: Kelley v. Board 
of Education of City of Nashville, 139 F.Supp. 578 (M.D. 
Tenn. 1956) (Dissolution of three-judge court) • Kelly v. 
Board of Education of City of Nashville, 159 F.Supp. 272 
(M.D. Tenn. 1958) (Disapproval of integration plan and 
grant to Board of additional time to file a new plan); Kel­



A-29 —

ley v. Board of Education of City of Nashville, 8 R.R.L.R. 
651 (M.D. Term. 1958) (Approval of 12-year plan); Kelley 
v. Board of Education of City of Nashville, 270 F.2d 209 
(6th Cir. 1959) (Upholding District Court order); Kelley 
v. Board of Education of City of Nashville, 361 U.S. 924, 
80 S.Ct. 293, 4 L.Ed.2d 240 (1959) (Denial of certiorari); 
Maxwell v. County Board of Education of Davidson 
County, 203 F.Supp. 768 (M.D. Tenn. 1960); Maxwell v. 
County Board of Education of Davidson County, 301 F.2d 
828 (6th Cir. 1962), reversed in part and remanded sub 
nom, Goss v. Board of Education of Knoxville, 373 U.S. 
683, 83 S.Ct. 1405, 10 L,Ed.2d 632 (1963); Kelley v. Board 
of Education of Nashville and Davidson County, 293 F. 
Supp. 485 (M.D. Tenn. 1968) (Further proceedings in a 
consolidation of Maxwell, supra, and Kelly, supra); Kelley 
v. Metropolitan County Board of Education, 317 F.Snpp. 
980 (M.D. Tenn. 1970); Kelley v. Metropolitan Board of 
Education of Nashville, Tennessee, 436 F.2d 856 (6th Cir. 
1970) (Memorandum opinion (filed June 28, 1971); Judg­
ment (filed July 15, 1971)).

This case began in 1955 on the heels of the United States 
Supreme Court’s decision in Brown v. Board of Educa­
tion, supra, holding that “ separate educational facilities 
are inherently unequal,” supra at 495. Plaintiffs in a 
class action sought invalidation of the Tennessee school 
laws, T.C.A., § 49-3701, et seq., which in specific terms re­
quired segregation of school pupils by race. (See Appen­
dix A) In 1956 a three-judge federal court which had 
been convened to pass on the constitutionality of the state 
statute was dissolved when the defendant Board of Edu­
cation conceded the unconstitutionality of the state statute 
by which it had previously been governed. Kelley v. Board 
of Education of City of Nashville, 139 F.Supp. 578 (M.D. 
Tenn. 1956). The case was then remanded to the United 
States District Court for the Middle District of Tennes­
see. The District Judge determined that the case was an



— A-30

appropriate class action under Rule 23 of the Federal 
Rules of Civil Procedure (Record, Min. Book 19 at 683). 
He ordered the defendant School Board to prepare and 
present a plan for desegregation of the Nashville schools.

Before judgment was entered, the State of Tennessee 
in January 1957 adopted a Parental Preference Law, TCA 
§ 49-3704, Pub. Acts 1957, cc 9-13, 2 Race Rel. L. Rep. 215 
(1957). (See Appendix A) This statute provided for sep­
arate white, black, and mixed schools, with attendance to 
be determined by parental preference. The District Court 
in September of 1957 held this statute to be unconstitu­
tional on its face. 2 Race Rel. L. Rep. 970 (1957).

The defendant School Board thereupon (and nonethe­
less) presented a parental preference plan for white, 
black, and mixed schools substantially the same as that 
called for by the unconstitutional state law.

In February of 1958 the District Court held the School 
Board plan to be unconstitutional.

Later in the same year a grade-a-year desegregation 
plan was submitted by defendant School Board, approved 
by the District Court and the Court of Appeals, with 
certiorari denied by the United States Supreme Court.

In 1960 a suit was filed to desegregate the Davidson 
County schools. Maxwell v. County Board of Education 
of Davidson County, supra. It was brought on behalf of 
Negro children alleged to he denied their constitutional 
rights to equal education in the county school system. 
Again the suit was brought as a class action and recog­
nized as such by the District Court under Rule 23, F ed. R. 
Civ. P. (Record, Min. Book 24 at 114.) The Davidson 
County school Board proposed a free transfer plan and 
it was approved by the District Court. On appeal Max­
well’s free transfer plan was invalidated by the United 
States Supreme Court, sub nom., Goss v. Board of Edu­
cation of Knoxville, 373 U.S. 683 (1963).



A-31 —

In 1963 the school systems of Nashville and Davidson 
County were then consolidated as part of a general con­
solidation of the City of Nashville and County of David­
son into one metropolitan government. Petitions for fur­
ther relief, including an order to desegregate the Nash- 
ville-Davidson County schools and to enjoin further school 
construction pending such an order, were filed in the 
consolidated case, with additional plaintiffs intervening.

In 1968 the United States Supreme Court took further 
note of how the Brown II  phrase “ deliberate speed” was 
being employed to delay rather than to implement school 
desegregation.

For purposes of reemphasis, we again quote the unani­
mous opinion:

[A] plan that at this late date fails to provide 
meaningful assurance of prompt and effective dis­
establishment of a dual system is also intolerable. 
“ The time for mere ‘deliberate speed’ has run out,” 
Griffin v. County School Board, 377 U.S. 218, 234; 
“ the context in which we must interpret and apply 
this language [of Brown II] to plans for desegrega­
tion has been significantly altered.” Goss v. Board of 
Education, 373 U.S. 683, 689. See Calhoun v. Latimer, 
377 U.S. 263. The burden on a shool board today is 
to come forward with a plan that promises realisti­
cally to work, and promises realistically to work now. 
Green v. County School Board of Kent County, 391 
U.S. 430, 438-39 (1968). (Emphasis added.)

. On the heels of these deisions plaintiffs sought relief 
consistent with them and lengthy hearings followed. In 
1970 the District Judge entered findings of fact which 
were subsequently reviewed and given effect by this court. 
Kelley v. Metropolitan County Board of Education of 
Nashville, Tennessee, 436 F.2d 856 (1970). In its opinion 
this court said:



— A-32

It would be well for those in authority in Nashville 
and Davidson County to read the able opinion [Dis­
trict Court opinon entered July 16, 1970] whch we 
now revitalize by our present order. The emphasis 
in the quotation which follows is that of this court: 

“ [I]t is the Court’s view that in the area of 
school zoning, school boards will fulfill their af­
firmative duty to establish a unitary school sys­
tem only if attendance zone lines are drawn in 
such way as to maximize pupil integration. In 
drawing such lines, the defendant school board 
may properly consider in the total equation such 
factors as capacities and locations of schools, 
physical boundaries, transportation problems, and 
cost; however, none of these considerations can 
supercede the importance of the primary goal 
of maximizing integration.

“ In looking to the facts of this case, the Court 
finds that many of the elementary and secondary 
school zone lines in the Nashville and Davidson 
County School System have not been drawn so as 
to minimize integration. With the exception of 
zone lines drawn for new schools, the zone lines 
currently in existence were drawn prior to Brown 
v. Board of Education with the aim of maintain­
ing segregation. Though there has been some 
black population migration to formerly white 
areas, in large part these zone lines continue to 
serve quite well the segregative purpose for 
which they were originally established. The truth 
of this statement is made manifest when one ex­
amines the racial make-up of the pupil population 
in areas containing several contiguous attendance 
zones. In East Nashville, for example, there is 
a cluster of five elementary schools having con­
tiguous attendance zones. Of these five schools, 
white pupils are in the great majority in four



— A-33

schools, Baxter, Dalewood, Rosebank, and Bailey, 
while black students are in the majority in one 
of the schools, Inglewood. As a reference to the 
zone map will indicate, Inglewood is completely 
surrounded by the four predominantly white 
schools, and the Inglewood zone is drawn to en­
close most of the black population living in the 
five school area. Defendants argue that they are 
applying the ‘neighborhood’ concept in the draw­
ing of elementary school zone lines. I f  such a 
concept is indeed being applied in this five school 
area, it appears to the Court that it is bemg ap­
plied solely to perpetuate segregation. Defend­
ants contend that one of the prime advantages 
of neighborhood ‘schools' is that they allow pupils 
to walk to and from school. I f  this is true, it is 
difficult to see why black pupils who live closer 
to Baxter or BaAley schools, for instance, are re­
quired to walk the greater distance to attend 
Inglewood school.

“ The same pattern is repeated in a seven school 
area in south and west Nashville. In this situa­
tion, the attendance zones for Ransom and Eakin 
schools are contiguous with the attendance zones 
for Ford, Greene, Head, Carter Lawrence, Murrel 
and Clemons schools. The former two schools are 
almost completely white, while the latter five 
schools are almost totally black.' Once again it

7 See Map No. 2 in Appendix and note the following 
figures* on the enrollment of these schools:

Ford Greene 
Head
Carter Lawrence
Murrel
Clemons
Ransom
Eakin

w B % B
0 887 100
O' 791 100
0 516 100
0 328 100

51 519 90
355 2 1
487 5 1

Based on plaintiff’s exhibit No. 3.



A-34—-

appears that the zone lines as drawn insure that 
white neighborhoods will have white schools and 
black neighborhoods will have black schools. As 
the above two illustrations make clear, by main­
taining the old dual school zones, defendant has 
encouraged continued segregation rather than sig­
nificant integration in the elementary schools.

“ Turning to junior high school zones, the Court 
finds much the same situation as in the elementary 
schools. Though the ‘neighborhood’ concept is not 
applied in secondary school zoning, junior high 
school zones are drawn so that each school serves 
a particular residential area or ‘service area’ as 
it is sometimes referred to by defendant. These 
service areas cover a broader geographic area 
than a single neighborhood, for several elemen­
tary schools within their respective neighborhood 
zones feed graduating students into the junior 
high school within whose zone they lie. This 
process is generally described in terms of a 
‘feeder pattern.’ Once again, a look at the exist­
ing zone lines convinces the Court that the junior 
high school attendance zones and the ‘feeder pat­
terns’ which graduate elementary students into the 
junior high schools are structured so as to foster 
for the most part continued segregation or at 
best only token integration. It is apparent that 
the zone lines as presently drawn are designed 
to provide racially identifiable ‘black’ schools for 
black residential areas and ‘white’ schools for 
white residential areas. For example, looking at 
a cluster of six contiguous junior high school 
zones, the Court finds that Bass, West End, and 
Moore Junior high schools are all predominantly 
white schools with their attendance zones being 
drawn so as to correspond significantly with white



residential areas. On the other hand, Washing­
ton, Rose Park and Waverly-Belmont are all ra­
cially identifiable as black schools and their at­
tendance zones have been drawn in a manner 
effectively to prevent a significant number of 
black pupils from attending school outside of 
the black residential area.8

“ Finally, looking to the high school zones, there 
is similar evidence of continued duality in the 
school system. For example, of five contiguous 
high school zones, three of the schools, Cohn, 
Hillsboro and Central, are racially identifiable as 
white schools. Their attendance1 zone lines form 
the boundary line between the predominantly 
white residential areas in south and west Nash­
ville and the black residential areas to the north 
and east. These black areas are served by Came­
ron and Pearl high schools.9

— A-35 —

8 S ee  Map No. 3 in Appendix and note the following
figures

W B % B
Bass 111 12 2
West End 578 40 6
Moore 999 85 8
W ashington 0 1,347 100
Rose Park 11 527 98
Waverly-Belmont 26 260 91

* Based on plaintiffs exhibit No. 3.

9 S ee  Map No. 4 in Appendix and note the following
figures:

W B % B
Cohn 960 45 1
Hillsboro 1,223 15 1
Central 899 203 18
Pearl 1 1,308 100
Cameron 0 1,212 100



A-36

“ In connection with the segregative effect of 
present school zoning, it is interesting to note 
that while portable classrooms are in limited use 
in predominantly Negro schools, approximately 
117 portables are in use in racially identifiable 
white schools. These predominantly Negro 
schools, on the basis of their rated maximum 
capacities, have approximately 5,400 vacancies, 
yet the white schools, in zones tailored to white 
residential sections, are overcrowded. It would 
seem that rezoning could serve the dual purpose 
of alleviating this overcrowding and, at the same 
time, promoting the goal of integration.

“It is the Court’s conclusion that defendant’s 
current policy of attendance zoning does not fa­
cilitate rapid conversion from a dual to a unitary 
school system. As is evident from the foregoing 
discussion, the zone lines as they presently exist 
foster continued segregation in many instances.10 
Corresponding as they do to racial residential 
patterns, it is difficult to envision any other re­
sult. Historic zone lines which purposely promote 
segregation must he altered. In making such 
alterations defendant hoard should take those 
steps ‘which promise realistically to convert 
promptly to a system without a “white” school 
and a “Negro” school, hut just schools.’ Green 
v. County School Board of New Kent County, 
supra [391 U.S. 430] at 442 [88 S,Ct. 1689, 20 
L.Ed.2d 716].

10 Of the 139 regular schools in the system in 1969-70, 
88 had less than 10% black enrollment, 22 had 10% to 
40% black enrolling (with the total enrollment of these 
latter 22 schools constituting only 16% of the entire metro­
politan school enrollment), and finally 29 schools had 
more than 40% black enrollment. A clear racial pattern 
is present,”



A-37 —

Kelley v. Metropolitan County Board of Education 
of Nashville, Tennessee, supra at 859-61. (Footnotes 
in quotation.)

We then remanded the case with instructions:
We believe that “ the danger of denying justice by 

delay” in this case is as clear as it was in, Alexander, 
supra; Green v. County Board, supra, and Carter, 
supra.

We now vacate the stay of August 25, 1970, with 
the intention of leaving in full effect and operation 
the judgment of the District Court of August 13, 
1970. The present District Judge should proceed im­
mediately to hold the necessary hearings upon ob­
jections to the Board of Education, plan and there­
after to approve or modify same as the record which 
is developed appears to require, and thereupon enter 
an order of implementation. The time schedule for 
consideration and implementation of this order should, 
of course, meet the “ maximum” standard set forth 
by the Supreme Court in the second Carter case 
(Carter v. West Feliciana Parish School Board, 396 
U.S. 290, 293, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970)). 
The District Court may, of course, require reports 
(including a pupil locator map) and recommendations 
(including those of expert witnesses and the Depart­
ment of Health, Education and Welfare) and consider 
them in its order of implementation. Id. at 862.

Acting within the terms of his sworn obligation a new 
District Judge proceeded to implement this court’s in­
structions.

While he was thus engaged, the United States Supreme 
Court decided the third history making case' pertaining 
to school segregation {Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971)). The opinion for



A-38 —

a unanimous Supreme Court; was written by Chief Justice 
Burger. In recital of the facts and conclusions of law, 
it parallels and controls our decision of this case.

We granted certiorari in this case to review im­
portant issues as to the duties of school authorities 
and the scope of powers of federal courts under this 
Court’s mandates to eliminate racially separate public 
schools established and maintained by state action. 
Brown v. Board of Education, 347 U. S. 483 (1954) 
(Brown I).

This case and those argued with it arose in States 
having a long history of maintaining two sets of 
schools in a single school system deliberately oper­
ated to carry out a governmental policy to separate 
pupils in schools solely on the basis of race. That was 
what Brown v. Board of Education was all about. 
These cases present us with the problem of defining 
in more precise terms than heretofore the scope of 
the duty of school authorities and district courts in 
implementing Brown I  and the mandate to eliminate 
dual systems and establish unitary systems at once. 
Swann v. Charlotte-Mecklenburg Board of Education, 
supra at 5-6. (Footnote omitted.)

These words apply exactly to the fundamental problems 
in the instant case also. The District Court order here 
under review is designed to “ eliminate racially separate 
public schools established and maintained by state action.” 
Tennessee is, as we have noted above, a state “ having 
a long history of maintaining two sets of schools in a 
single school system deliberately operated to carry out 
a governmental policy to separate pupils in schools solely 
on the basis of race.” (See Appendix A.) We here con­
sider a District Court order designed to “ implement 
Brown I and . . .  to eliminate dual systems and establish 
unitary systems at once.”



— A-39

The District Court held numerous hearings and 
received voluminous evidence. In addition to finding 
certain actions of the school board to be discrimina­
tory, the court also found that residential patterns 
in the city and county resulted in part from federal, 
state, and local government action other than school 
board decisions. School board action based on these 
patterns, for example, by locating schools in Negro 
residential areas and fixing the size of the schools 
to accommodate the needs of immediate neighbor­
hoods, resulted in segregated education. These find­
ings were subsequently accepted by the Court of 
Appeals. Swami v. Charlotte-Mecklenburg Board of 
Education, supra at 7.

This paragraph applies to the facts of the instant case 
without change of a, single word.

Chief Justice Burger then turned to the question of 
appropriate remedial measures to eliminate state imposed 
segregation:

The objective today remains to eliminate from the 
public schools all vestiges of state-imposed segrega­
tion. Segregation was the evil struck by Brown I  as 
contrary to the equal protection guarantees of the 
Constitution. That was the violation sought to be 
corrected by the remedial measures of Brown II. That 
was the basis for the holding in Green that school 
authorities are “ clearly charged with the affirmative 
duty to take whatever steps might be necessary to 
convert to a unitary system in which racial dis­
crimination would be eliminated root and branch.” 
391 U. S., at 437-438.

If school authorities fail in their affirmative' obli­
gations under these holdings, judicial authority may 
be invoked. Once a right and a violation have been 
shown, the scope of a district court’s equitable powers



to remedy past wrong's is broad, for breadth and
flexibility are inherent in equitable' remedies.

# # #

In seeking to define even in broad and general 
terms how far this remedial power extends it is im­
portant to remember that judicial powers may be 
exercised only on the basis of a constitutional viola­
tion. Remedial judicial authority does not put judges 
automatically in the shoes of school authorities whose 
powers are plenary. Judicial authority enters only 
when local authority defaults.

School authorities are traditionally charged with 
broad power to formulate and implement educational 
policy and might well conclude, for example, that in 
order to prepare students to live in a pluralistic so­
ciety each school should have a prescribed ratio of 
Negro to white students reflecting the proportion for 
the district as a whole. To do this as an educational 
policy is within the broad discretionary powers of 
school authorities ; absent a finding of a constitutional 
violation, however, that would not be within the 
authority of a federal court. As with any equity 
case, the nature of the violation determines the scope 
of the remedy. In default by the school authorities 
of their obligation to proffer acceptable remedies, 
a district court has broad power to fashion a remedy 
that will assure a unitary school system. Swann v. 
Charlotte-MecMenburg Board of Education, swpra at 
15-16.

The default of school authorities referred to by Chief 
Justice Burger is equally illustrated by the history of 
our present case.

With this history and these principles before us, a 
tabular comparison of the fact situations and District 
Court plans presented in the Swann and Kelley cases is 
appropriate:

— A-40 —



— A-41

Swann v. 
Bd. Ed.

Kelley v. 
Bd. Ed.

Date of original com- 1965 1955
plaints

No. of schools (before 107 (1968-69) 139 (1970-71)
plan)

No. of schools (after 107 133 (1971-72)
plan)

Total enrollment 84,000 (approx.) 94,170 (1970-71)
Per cent white students 71% 75% (75.12%)
Per cent black students 29% 25% (24.63%)
Walking distance (after 1% miles 1 miles

plan)
No. students bused 23,600 33,485

prior to plan
No. white students bused 

prior to plan
Exact figures not 
available, but it 
is clear that a 
large majority

30,000

No. black students bused 
prior to plan

of s t u d e n t s  
b u s e d  w e r e  
white.

3,500 (approx.)

Extent of segregation In 1969 % of the In 1969 81% of
prior to plan b l a c k  students 

were then at­
tending schools 
that were either 
totally or 99% 
black.

all w h i t e  stu­
dents were at­
tending schools 
that were over 
90% white, while 
62% of all black 
students w e r e  
attending school 
that were over 
90% black.



Swann v. 
Bd. Ed.

Kelley v. 
Bd. Ed.

Net increase in No. of 
students bused as a re­
sult of court adopted 
plan

No. of additional buses 
required

No. of buses obtained to 
carry out plan

13,300
138 54-passenger 
buses
Court opinions 
do not contain 
tbis information

15,000 (approx.)
82 84-passenger
buses
None

Ratio of white to black 71%-29% 
student population em­
ployed by court ap­
proved plan as guide

Per cent of schools deseg- 100% of elemen- 
regated by plan within tary* s c h o o l s  
guide related ratios w o u l d  h a v e

b l a c k  student 
population o f 
9%-38%.

One race schools remain- Apparently 
ing under plan due to none 
travel distance

75%-25%

77% of elemen­
tary s c h o o l s  
would h a v e  a 
b l a c k  student 
population o f 
16%-41%; 22
outlying schools 
would h a v e  a 
b l a c k  student 
population o f 
0% -22% .

5

* Junior and Senior High School desgregation under 
the Swann plan was likewise considerably closer to 
ideal unitary school standards than the1 plan approved 
by the District Court in this case.



The general principles of Swann were, of course, enun­
ciated by the Supreme Court for guidance of District 
Courts and Courts of Appeals in all school segregation 
cases. In view of the close factual resemblances between 
this case and Swann, these principles, however, apply 
here a fortiori.

THE REMEDIAL ORDER OF THE DISTRICT COURT

The nature of the problem facing the District Court 
many years after Brown v. Board of Education, 347 U.S. 
483 (1954), is vividly portrayed in the statistics and the 
table set forth below.1

Racial Composition for the' Three Years Preceding 
Hearings on Motion for Further Relief

1967- 68—85% of the white students attended schools that
were over 90% white.
63% of the black students attended schools that 
were over 90% black.

1968- 69—80% of the white students attended schools that
were over 90% white.
61% of the black students attended schools that 
were over 90% black.

1969- 70—81% of the white students attended school that
were over1 90% white.
62% of the black students attended school that 
were over 90% black.

These figures show that during the three-year period 
nearly two-thirds of the black students in the' Nashville 
system went to racially identifiable schools, and more than

1 These statistics are based largely upon plaintiffs;’ exhibits 
in the court below, but we can find no contrary evidence of­
fered, by defendants.



four-fifths of the white students attended racially identi­
fiable schools.

Busing did not come to Nashville by federal court 
decree. This record demonstrates that Nashville and 
Davidson County have long used extensive bus trans­
portation as a normal part of their school systems. Busing 
was, however, employed wholly disproportionately for the 
transportation of its white students as compared to its 
black students (30,000 white to 3,500 black). In this 
regard the District Judge’s opinion noted:

“ Since the defendants have consistently transported 
large numbers of students to promote segregation, 
some adjustment must be made to reverse this uncon­
stitutional practice. ’ ’

The District Court clearly found that defendants had 
defaulted in relation to their duty to dismantle their seg­
regated school system prior to 1970. The District Court also 
found that although defendants had repeatedly been asked 
and ordered to produce an adequate plan, they had failed 
to do so. It noted that the School Board accepted as a 
policy statement “ an ideal student racial ratio of an in­
tegrated school as one which is 15% to 35% black.” Yet its 
analysis of the plan actually submitted by the School 
Board showed it to be utterly inadequate.

The Board of Education submitted a plan for pupil 
integration in August, 1970. Included in this plan was 
a policy statement that the school board “ accepts as 
an ideal student racial ratio of an integrated school 
as one which is 15% to 35% black.”

The August, 1970 plan made 49 minor geographic 
zone changes, and provided for the transportation of 
an additional 1162 pupils. The result of the plan was 
to leave the elementary schools significantly un­
changed. Six of the 38 high schools and junior high



■schools would remain at least 50 per cent black. Fifty- 
seven per cent of the black high school and junior 
high school students would attend these six schools. 
The racial composition of two schools would be at 
least 95 per cent black and four other schools would 
be at least 90 per cent black. This would result in 47 
per cent of the black students attending schools where 
the composition would be above 90 per cent black. 
Eight schools, accommodating 20 per cent of the 
black students, would operate with 15-35 per cent 
black students. Fifteen schools would operate with. 
95 per cent or above white student’s. (Footnotes 
omitted.)

Concerning the School Board plan, the District Court con­
cluded:

The pupil integration plan submitted by the school 
board, viewed in the most favorable light, constitutes 
mere tinkering with attendance zones, and represents 
only a token effort. It clearly falls short of meeting the 
objectives and tests set out in the decisions of the 
United States Supreme Court. Swann v. Charlotte- 
Mecklenburg Board of Education, supra; Davis v. 
Board of School Commissioners, supra; Green v. 
County School Board, 391 U.S. 430 (1968). In effect, 
the defendant has made no effort to meet its affirma­
tive duty to establish a unitary school system “ in 
which racial discrimination would be eliminated root 
and branch.” Green v. County School Board, supra, at 
437-38; quoted in McDaniel v. Barresi, [402] U.S. 
[39], 28 L.Ed.2d 582, 585 (April 20, 1971).

Since the defendants have, in effect, failed to submit 
a constitutionally sufficient plan, the Court must ex­
amine the other plans. (Footnote omitted.)

The plan adopted by the District Judge was one pro­
posed by the United States Department of Health, Educa-

— A-45 —



A-46 —

tion and Welfare. It is described in detail in his Mem­
orandum Opinion, dated June 28, 1971, and in his Judg­
ment, dated July 15, 1971, both of which are by reference 
hereby incorporated as a part of this opinion. For our 
present purpose it suffices for us to note that in all re­
spects which have come to our attention, the HEW plan 
approved by the District Judge represents a somewhat 
less stringent approach to desegregation than the plan 
approved by the United States Supreme Court in Swann, 
supra.

Major portions of the Court’s comprehensive Opinion 
and Judgment, such as those dealing with faculty desegre­
gation, school construction and maintenance, and transfer 
policy, etc., are not discussed herein because no appellate 
issues have been presented as to those features.

I The Rule 23 Issue

As to the Rule 23 issue, earnestly if belatedly sought to 
be raised by appellants, we affirm the Memorandum Order 
of the District Judge, dated July 21, 1971, for the reasons 
set forth therein, and print same for ready reference as 
Appendix B.

Further, we note that this issue was clearly waived by 
failure of appellants to raise it prior to trial and final 
adjudication of this case.

We also note that such a class action as this dealing 
with continuing constitutional violations does not become 
moot because of years of delay (much of it attributable to 
appellants) which occasioned the graduation of the named, 
original student plaintiffs from the school system before 
final decision.



II The Ratio and Residual Effect Issues 
(Plaintiffs’ stated Issues 2, 3 & 4)

Where a school system has been deliberately constructed 
on a segregated basis by state action, a duty inheres in 
the School Board to do more than to establish rules fair on 
their face which simply serve to perpetuate the effects of 
such segregation. Swann v. Charlotte-Meclclenburg Board 
of Education, 402 U.S. 1, 26, 28 (1971).

The record in this case supports the District Judge’s 
findings that racial discrimination in school construction, 
assignment of temporary buildings, assignment of teach­
ers, and assignment of students continued until the close 
of the record—if not beyond. The record also discloses a 
background of racial discrimination by means of state law 
which motivated much of the school segregation. (See 
Appendix A)

The fact that population shifts in the metropolitan 
school district have helped to some degree to change the 
racial composition of some schools during the course of 
litigation does not eliminate the duty of the school board 
to present a plan for a unitary school system.

Nor, of course, does it alter the duty of the District 
Court on default of the school board to require production 
of such a plan and order it into effect. Chief Justice Burger 
put the matter thus in the Davis case:

“ Having once found a violation, the district judge 
or school authorities should make every effort to 
achieve the greatest possible degree of actual deseg­
regation, taking into account the practicalities of the 
situation.” Davis v. School Commissioners of Mobile 
County, supra at 37.

Perhaps the primary thing that the Swann case decided 
was that in devising plans to terminate such residual ef­

— A-47 —



— A 48  —

fects, it is appropriate for the school system, and the Dis­
trict Judge to take note of the proportion of white and 
black students within the area2 and to seek as practical a 
plan as may be for ending white schools and black schools 
and substituting therefor schools which are representative 
of the area in which the students live.

We have noted that the District Judge in Swann em­
ployed a flexible 71% white to 29% black population ratio 
as a guide in seeking a practical plan. The Supreme Court 
specifically approved his doing so. See Swann v. Charlotte- 
MecMenburg Board of Education, supra at 16, 23-24. The 
District Judge in this case clearly read and followed the 
Swann guideline. As to this issue, we find no error.

An earlier finding of “ good faith” does nothing to ex­
cuse the defaults and failures shown by this record. “ The 
measure of any desegregation plan is its effectiveness.” 
Davis v. School Commissioners of Mobile Cou/nty, 402 
U.S. 33, 37 (1971). See also Green v. County School Board, 
391 U.S. 430, 439 (1968).

Ill Practical Problems
If there is an appellate issue of substance in this appeal, 

it is to be found in the practical problems which appellants 
claim have developed since the entry of the District 
Judge’s order. Appellant summarizes these issues thus: 

A plan which exposes the children in the school 
system to undue danger to health and accident, inter­
feres with their education by requiring excessive pe­
riods of time on buses, causes them to leave home 
before daylight or to return home after dark, exposes 
them to the dangers of travel in old and inadequately 
maintained equipment and causes elementary school 
children, both black and white, to suffer hardships

2 The area referred to in this case is all of Davidson County, 
including the City of Nashville, which is included in the juris­
diction of defendant Metropolitan Board of Education,



A-49 —

to which young children should not be exposed can 
hardly be termed feasible, workable, effective and 
realistic.

Substantial as these problems appear to be on the sur­
face, there are two reasons why no relief can be granted 
in this forum. The first is that no motion for relief pertain­
ing to these facts has ever been filed by appellant in the 
District Court. These statements at this point are allega­
tions and they are controverted by the appellee. This, of 
course, is an appellate court—not a trial court. As appel­
lants well know, the arena for fact-finding in the federal 
courts is the United States District Court. Until these 
claims have been presented in a trial court, with an op­
portunity for sworn testimony to be taken and contro­
verted issues and facts decided by the processes of ad­
versary hearing, this court has no jurisdiction.3

The second reason as to why appellants are entitled to 
no relief on this issue probably serves to explain the first. 
The entire “ record” upon which appellant: bases his plea 
for relief as to practical problems is a “ Report to the 
Court” of Dr. Brooks, Director of Schools of the Metro­
politan County Board of Education. This report is dated 
October 18, 1971, just over a month after the opening of 
school. While we are advised that it was sent to the Dis­
trict Judge, as we have noted, no motion of any kind seek­
ing any District Court action was ever filed concerning it.

3 During the pendency of an appeal, jurisdiction of the case 
lies, of course, in the appellate court. There is, however, fa­
miliar law to deal with an unexpected problem which arises 
in this period concerning the actual terms of the order or judg­
ment under appeal. The District Court may on being apprised 
of the problem and having determined its substantiality (with 
or without hearing) certify to the appellate court the desira­
bility of a remand for completion or augmentation of the ap­
pellate record. No memory in this court encompasses a refusal 
of such a request.

The record is clear that no request for remand was made by 
the District Court, obviously, at least in part, because appel­
lants made no motion for relief before the District Court.



— A-50

Even more important, the statement on its face suggests 
that local authorities in Nashville and Davidson County 
have not made good faith efforts to comply with the order 
of the District Judge.

Dr. Brooks’ affidavit does present this exculpatory ex­
planation which serves to point in the direction of other 
authorities of those responsible for the inconveniences and 
hazards of which Dr. Brooks’ statement speaks. The state­
ment says:

The School Board is fiscally dependent in that its 
budgets must be approved by the Metropolitan City 
Council. In approving the budget of the School Board 
on June 30, 1971, Council members demanded assur­
ance that no funds included in the budget would be 
used to purchase buses for the purpose of transporting 
students to establish a racial balance. The 1971-72 
budget did provide for the purchase of 18 large buses 
to replace obsolete equipment to provide transporta­
tion for students to the new comprehensive McGuvock 
High School.

It is clear, however, that neither the Metropolitan City 
Council or, for that matter, the Legislature of Tennessee 
can forbid the implementation of a court mandate based 
upon the United States Constitution. In a companion case 
to Swann, supra, Chief Justice Burger, writing again for 
a unanimous court, held that an anti-busing law which 
flatly forbids assignment of any student on account of 
race or for the purpose of creating a racial balance or 
ratio in the schools and which prohibits busing for such 
purposes, was invalid as preventing implementation of 
desegregation plans required by the Fourteenth Amend­
ment. North Carolina State Board of Education v. Swann, 
402 U.S. 43, 45-46 (1971). See also Cooper v. Aaron, 358 
U.S. 1 (1958).

Dr. Brooks’ statement also furnishes the bus schedule 
of the Metropolitan County Board of Education by yearly



A-51 —

models. It shows that the Board has an average of 18.9 
buses for each of the last 10 model years. The 18 buses 
purchased in 1971 were described by Dr. Brooks as “ to 
replace obsolete equipment.” It appears from the Metro­
politan Board’s own statements that the Board and the 
local authorities in Nashville did not purchase one piece 
of transportation equipment for the purpose of converting 
the Metropolitan County Board of Education school sys­
tem from a dual school system segregated by race into 
a unitary one, as called for by the District Judge’s order.

At court hearing we had been puzzled as to why counsel 
for the Board had failed to go back to the District Court 
to report on the grievous circumstances which he so 
strongly alleged before us. Like most decrees in equity, 
an injunctive decree in a school segregation case is always 
subject to modification on the basis of changed circum­
stances. S'loan v. Tenth School District of Wilson County, 
433 F.2d 587, 589-90 (6th Cir. 1970). Further acquaintance 
with the record, which, of course, the District Judge would 
have known in detail, leaves us in no further quandry 
as to the reasons for counsel’s reluctance.

IV Plaintiffs-Appellants’ Plan
Our review of this record convinces us that the District 

Judge’s choice of the HEW plan as opposed to plaintiffs’ 
plan was well within his judicial discretion. It may not 
be ideal, but to us it seems clearly to be a plan for ending 
a dual school system based on race and substituting 
therefor a unitary one. It promises to work and to work 
now. Green v. County School Board of Kent County, 391 
U.S. 430 (1968).

V Plaintiffs-Cross-Appellants’ Discrimination Claim
Plaintiffs-Cross-appellants claim that the grade school 

plan discriminates against Negro students in the lowest 
elementary grades.



•— A-52 —

The feature complained of in this issue is the trans­
portation of black students in grades 1-4 to outlying 
schools, paralleled by the cross-transportation of white 
students in grades 5-6. In this regard the HEW plan 
appears to follow the pattern of the school plan approved 
in Swann. Swann v. Board of Education, supra at 10. 
The Supreme Court made no reference to this feature, 
and neither in Swann nor in this case does the record 
seem to provide adequate rationale for it. We do not 
believe, however, that we can appropriately hold that 
the District Judge abused his discretion in approving the 
HEW plan which (like the plan in Swann) incorporated 
this feature.

It may be that this is a temporary expedient or it may 
be that there are practical reasons to justify it for longer 
duration. In any event, any adverse effects of this aspect 
of the plan can, of course, likewise be brought to the 
District Judge’s attention when the case is back before 
him.

The Intervention

Twenty-four hours before oral arguments in this ap­
peal, the United States Department of Justice filed a 
motion to intervene as amicus curiae. In spite of the 
extraordinary delay in filing the motion, we granted 
leave to intervene and invited the representative of the 
Justice Department who appeared to address the court.

On reading the motion, hearing oral argument, and 
questioning counsel, we determined that the representa­
tive of the Justice Department had not had the oppor­
tunity to read the District Court record in this case and 
was not aware in advance of hearing that the claimed 
practical problems had never been presented to or adjudi­
cated by the District Judge.



— A-53

One America
This nation has been told by a Presidential Commission 

that our country is rapidly becoming divided into two 
societies—one black and one white. R eport op N ational 
A dvisory Commission on Civil D isorders 1 (3/1/68).

The Constitution of the United States was written for 
one nation, “ indivisible.” As it speaks to men’s con­
sciences, the Constitution argues against division and 
apartheid.

In the public domain, however, the Constitution com­
mands. Here the constitutional command is One America.

The Constitution and the Supreme Court opinions quoted 
above do not command the use of busing any more than 
they command the use of books, desks, paper, pens, build­
ings, lights, heat, and other tools, equipment and supplies 
needed in modern life and in modern education. What the 
Constitution and the Supreme Court say about the prin­
cipal issue of this case is that no one may forbid a school 
board (or a federal court) from employing any of the 
tools of modem life in carrying out a constitutional man­
date. Davis v. Board of Commissioners of Mobile County, 
402 U.S. 33, 37-38 (1971).

The District Court order in this case specifically re­
tained jurisdiction. Thus, upon our affirmance, the door 
of the District Court is clearly open (as it has been!) to 
the parties to present any unanticipated problems (not re­
sulting from failure to comply with its order) which may 
have arisen or may arise in the future.

We now affirm the findings of fact, conclusions of law, 
and judgments of the District Court.

The District Judge’s order noted that no stay would 
issue and we likewise note that any stay of this order 
must be sought from the United States Supreme Court.



■— A-54 —

Appendix A

CHAPTER 37
SEGREGATION OF RACES

S e c t io n

49-3701—49-3703. [Unconstitutional.]
Compiler’s Note. Under the decision of Roy v. Brittain 

(1956), 201 Tenn. 140, 297 S. W. (2d) 72, the statutes pro­
viding for the compulsory separation of races in the field 
of public education are no longer in effect, and therefore 
these sections have been omitted. They read:

49-3701. Interracial schools prohibited.—I t shall be un­
lawful for any school, academy, college, or other place of 
learning to allow white and colored persons to attend the 
same school, academy, college, or other place of learning. 
[Acts 1901, ch. 7, §1; Shan., $6888a37; Code 1932, § 
11395.]

49-3702. Teaching of mixed classes prohibited.—It shall 
be unlawful for any teacher, professor, or educator in any 
college, academy, or school of learning to allow the white 
and colored races to attend the same school, or for any 
teacher or educator, or other person to instruct or teach 
both the white and colored races in the same class, school, 
or college building, or in any other place or places of learn­
ing, or allow or permit the same to be done with their 
knowledge, consent, or procurement. [Acts 1901, ch. 7, § 
2; Shan., § 6888a38; Code, § 11396.]

49-3703. Penalty for violations.—Any persons violating 
any of the provisions of this chapter, shall be guilty of a 
misdemeanor, and, upon conviction, shall be fined for each 
offense fifty dollars ($50.00), and imprisonment not less 
than thirty (30) days nor more than six (6) months. [Acts 
1901, ch. 7, § 3; Shan., § 6888a39; mod. Code 1932, § 11397.]



— A-55

49-3704. [Unconstitutional.]
Compiler’s Note, This section was held unconstitutional 

in Kelly v. Board of Education (1959), 270 Fed. (2d) 209 
and is, therefore, omitted. I t read:

49-3704. Separate schools authorized.—Boards of edu­
cation of counties, cities and special school districts in this 
state are authorized to provide separate schools for white 
and negro children whose parents, legal custodians or 
guardians voluntarily elect that such children attend 
school with members of their own race. [Acts 1957, ch. 11, 
§1.]

CHAPTEK 22—TRANSPORTATION OF 
SCHOOL CHILDREN

SECTION.

49-2201. Power of boards to provide transportation—Use 
to achieve racial balance prohibited.

49-2210. Color and markings of buses.
49-2213. Speed limit.

49-2201. Power of boards to provide transportation— 
Use to achieve racial balance prohibited.—Boards of edu­
cation may provide school transportation facilities for 
children who live over one and one-half (1%) miles by the 
nearest accessible route from the school to which they are 
assigned by the board of education and in which they are 
enrolled; provided, however, that the boards of education 
may, in their discretion, provide school transportation 
facilities for children who live less than one and one-half 
(IV2 ) miles by the nearest accessible route from the school 
in which they are enrolled, but the county shall not be 
entitled to receive state transportation funds for any 
student, other than physically handicapped children, who 
live less than one and one-half (1%) miles by the nearest 
accessible route from the school in which they are en­
rolled; provided, that nothing in this chapter shall be 
construed to prevent a board of education from transport­



— A-56 —

ing physically handicapped children, regardless of the 
distance they live from school,, under rules and, regulations 
adopted hy the state board of education with the approval 
of the state commissioner of education, and provided fur­
ther, that said hoards shall have power to purchase school 
transportation equipment, employ school transportation 
personnel, and contract for transportation services with 
persons owning equipment, and pay for same out of funds 
duly authorized in the budget approved by the quarterly 
county court; provided further, that said hoards in em­
ploying school transportation personnel and in contract­
ing for transportation services with persons owning equip­
ment are hereby authorized to enter into contracts for 
such services for periods of time as long as, but not. ex­
ceeding, four (4) years from the date of making such 
contracts, it being the purpose of this section to permit a 
reasonable degree of employment security for such, school 
transportation personnel.

Provided, however, no board of education shall use or 
authorize the use of any school transportation facilities 
for the purpose of achieving a racial balance or racial im­
balance in any school by requiring the transportation of 
any student or pupil from one school to another or from 
one school district established for his neighborhood to 
another. [Acts 1947, ch. 92, § 1; 1949, ch. 233, § 1; C. Supp. 
1950; §2495.1 (Williams §2495.2); Acts 1957, ch. 10, §1; 
1957, ch. 400, §1; 1970 (Adj. S.), ch. 491, §1.]

Amendment. The 1970 amendment added the last para­
graph to this section.

Effective Date. Acts 1970 (Adj. S,), ch. 491, §2. Feb­
ruary 27, 1970.
[Note that a statute similar to the proviso in the last para­
graph of the statute above was held unconstitutional by 
the United States Supreme Court. North Carolina State 
Board of Education v. Swann, 402 U.S. 43 (1971).]



— A 57—

Appendix B

MEMORANDUM AND ORDER
(Filed July 21, 1971)

The defendant Metropolitan County Board of Educa­
tion of Nashville and Davidson County, Tennessee, filed 
two motions, to-wit, a motion to set aside the judgment 
entered in this cause on July 16, 1970, and a motion to 
set aside the memorandum opinion filed June 28, 1971, 
which motions are grounded on the failure of the Court to 
comply with Rule 23 of the Federal Rules of Civil Pro­
cedure.

Apparently these motions were filed without counsel for 
the defendant having made even a casual perusal of the 
record in the consolidated cases.

The history of the consolidated cases reveals:
The first cause of Robert W. Kelley, et al. v. Board of 

Education of the City of Nashville, Davidson County, 
Tennessee, et al., Civil No. 2094, was filed on September 
23, 1955. This case will be hereinafter referred to as the 
“ first case.”

The case of Henry C. Maxwell, Jr., et al. v. County 
Board of Education of Davidson County, Tennessee, et al., 
Civil No. 2956, was filed on September 19, 1960. This case 
will be hereinafter referred to as the “ second case.”

These cases were consolidated by consent order filed 
September 10, 1963.

Rule 23 of the Federal Rules of Civil Procedure as to 
class action was amended, effective July 1, 1966. Prior to 
the amendment, class actions were referred to as “ spuri­
ous” or “ true” class actions. Prior to the amendment, the 
requirements' for the maintenance and determination of



A-58 —

the existence of a proper class action were less stringent 
than those requirements as set forth in Rule 23, as 
amended. Prior to its amendment, Rule 23 did not require 
detailed findings and determinations by the Court as set 
forth in subsection (c) of the Rule, as amended.

First Case
By Memorandum filed on January 21, 1957, the Honor­

able William E. Miller determined “ that the rights of the 
plaintiffs and other similarly situated to attend the public 
schools of the City of Nashville without discrimination on 
account of race are recognized and declared, . . Rec­
ord, Min. Book 19, at 679.

By findings of fact and conclusions of law filed on Febru­
ary 20, 1957, the Honorable William E. Miller adjudicated 
that Case No. 2094 was “ properly brought as a class action 
under Rule 23 (a) of the Federal Rules: of Civil Procedure. 
Title 28 U.S.O.” Record, Min. Book 19, at 783.

On August 15, 1958, the case was appealed to the Sixth 
Circuit Court of Appeals. On July 20, 1959, the Court of 
Appeals affirmed the judgment of the District Court, 
thereby affirming the determination of the Honorable Wil­
liam E. Miller that this was a proper class action.

On September 10, 1963, a consent order was entered in 
Case No. 2094, the first case, and Case No. 2956, the second 
case, in which the parties agreed and stipulated that the 
functions and powers of the defendants Board of Educa­
tion of the City of Nashville and County Board of Educa­
tion of Davidson County were vested in the Metropolitan 
School System, and the “ Transitional Board of Education 
for the Metropolitan Government of Nashville and David­
son County” was substituted as defendant. All orders, 
judgments, and other proceedings in the first case and the 
second case were made effective as to the substituted de-



— A t ­

tendant. There was an express provision that all orders, 
judgments and proceedings entered previously would re­
main in full force and effect, and that none of the rights of 
the parties would be affected or prejudiced.

By order of December 3, 1964, the Metropolitan County 
Board of Education and its board members were made 
parties defendant in lieu of the Transitional Board. Again, 
there was a provision that all orders, judgments and pro­
ceedings in both cases would remain in full force and ef­
fect and that none of the rights of any parties would be 
affected or prejudiced.

By order entered on October 7, 1968, certain additional 
parties, including infants and their parents,, were added 
as intervening plaintiffs to have full standing as plaintiffs.

The two cases were again appealed to the Sixth Circuit 
Court of Appeals. The opinion of the Court of Appeals was 
filed in this Court on February 8, 1971.

Second Case
On November 23, 1960, the Honorable William E. Miller 

adjudicated that “ this is a class action brought not only 
by the plaintiffs for their own benefit but also on behalf of 
all other persons similarly situated.” Record, Min. Book 
24, at 114.

This case was appealed to the Court of Appeals for the 
Sixth Circuit on February 20, 1961.

The orders in the consolidated cases of September 10, 
1963, December 3, 1964, and October 7, 1968, noted above 
also apply to this case.

As appears above, the Honorable William E. Miller care­
fully adhered to Rule 23 as it existed at the time of the 
filing of these two cases. The Court of Appeals did not 
question his determination, but affirmed the actions which 
he took in the matter. In addition, in the latest mandate



— A-60 —

to the District Court received from the Court of Appeals 
in February, 1971, this Court was instructed to implement 
the July 16, 1970 opinion of the Honorable William E. 
Miller.

This Court does not feel once a class action has been 
adjudicated and the action of the trial court has been 
reviewed by the Court of Appeals, that it is necessary or 
proper to continue to redetermine the standing of the 
plaintiffs to represent a class. The United States Supreme 
Court in its order implementing the amendment to Rule 
23 states:

“ . . . the foregoing amendments and additions to 
the Rules of Civil Procedure shall take effect on July 
1, 1966, and shall govern all proceedings in actions 
then pending, except to the extent that in the opinion 
of the Court their application in a particular action 
then pending would not be feasible or would work in­
justice in which event the former procedure applies.” *

See also Escott v. Barchris Construction Corp., 283 F. 
Supp. 643 (S.D. N.Y. 1968); Polakoff v. Delaware Steeple­
chase and Race Assn., 264 F. Supp. 915 (Del. 1966).

This clearly indicates an intent that there should not be 
a continuous readjudication of this question in cases 
where there has been a lengthy history of litigation, both 
in the district and the appellate courts. Frankly, this 
Court feels that it is not feasible or practical to have 
continuous adjudication of such items.

In view of the above, the Court is not required to deter­
mine (1) whether this question should have been raised

* Paragraph 2, Order of the Supreme Court of the United 
States, February 28, 1966, reporting amendments to the Federal 
Rules of Civil Procedure for the United States District Courts 
to the United States Senate and House of Representatives. This 
is reported in 15 L.Ed.2d lxxv.



—- A-61

prior to the adjudication of the cause, and (2) what, if 
any, effect the alleged failure to comply with Rule 23 
would have on the right of the individual plaintiff chil­
dren who reside throughout Davidson County, Tennessee, 
to assert their constitutional privilege to attend an inte­
grated school in a unitary school system.

The motions are hereby denied.
L. CLURE MORTON 

United States District Judge

M cCree, Circuit Judge (Concurring). I  agree with the 
majority opinion on the issues it discusses. Nevertheless, 
I wish to add a few observations concerning our reasons 
for rejecting plaintiffs’ cross-appeal and affirming, for the 
present, the District Court’s selection of the HEW plan.

The District Court, in deciding to reject plaintiffs’ plan, 
recognized that under Swann v. Charlotte-Mecklenbur y 
Board of Education, 402 U.S. 1 (1971); Davis v. School 
Commissioners of Mobile County, 402 U.S. 33 (1971); and 
Green v. County School Board of New Kent County, 391 
U.S. 430 (1968), its duty was to select the plan that ap­
peared to be the most effective in eradicating the effects 
of past segregation, unless it would be impractical to adopt 
such a plan. The court found that plaintiffs’ plan was 
“ impractical and not feasible” because of the costs and 
transportation problems that would result from the in­
clusion of certain out-county schools in the plan. The court 
also relied upon the fact that plaintiffs’ plan left to the 
school board the specifics of pupil assignment, grade or­
ganization, school structuring, and school district zoning.

My colleagues and I agree that there is no need at this 
juncture to hold that the District Court abused its discre­
tion in thus preferring the HEW plan over that of plain­
tiffs. The HEW plan promises to accomplish a significant 
degree of integration, and it is a plan that promises



A-62—■

realistically to work and to work now. Green v. County 
School Board of New Kent County, supra, 391 U.S. at 
439, Although plaintiffs’ plan might have more effectively 
desegregated the district’s schools, its inclusion of out­
lying schools and its lack of specificity rendered it, in the 
court’s opinion, impractical and unfeasible. Since the Dis­
trict Court has retained jurisdiction in order to supervise 
the implementation and effectiveness of the HEW plan, 
plaintiffs have the option of revising their plan to elimi­
nate the defects noted by the court and requesting the 
court to make specific changes in the plan to promote, in 
a practical way, more effective integration. If the court 
should then find that plaintiffs ’ plan is ‘ ‘ feasible and peda- 
gogically sound,” Robinson v. Shelby County Board of 
Education, 442 F.2d 255, 258 (6th Cir.), on remand, 330 
F. Supp. 837 (W.D. Tenn. 1971), appeal pending, No. 
71-1966 (6th Cir.), it would be required to adopt that 
plan. See Barrington v. Colquitt County Board of Educa­
tion, No. 72-1579 (5th Cir. May 10, 1972); Monroe v. 
Board of Commissioners of City of Jackson, Tennessee, 
453 F.2d 259, 262 (6th Cir. 1972), cert, filed, 40 H.S.L.W. 
3491 (U.S. March 31, 1972) (No. 71-1249); Robinson v. 
Shelby County Board of Education, supra; Davis v. School 
District of the City of Pontiac, Inc., 443 F.2d 573, 576-77 
(6th Cir.), cert, denied, 404 U.S. 913 (1971). In the spe­
cial circumstances of this case, therefore, there is no need 
to remand and thereby possibly jeopardize implementa­
tion of the first desegregation plan ordered into effect in 
this school district that promises, after 17 years of litiga­
tion, realistically to work now.

With respect to plaintiffs’ contention that the District 
Court abused its discretion in adopting a plan that places 
the greater burden of desegregation on black children and 
their parents, I observe initially that, although the plan 
approved by the Supreme Court in Swann appears to have 
contained a provision that in some respects resembles one



A-63 —

of the features of the HEW plan attacked by plaintiffs 
herein—the pairing and clustering feature that requires 
all children in grades one through four to attend suburban 
schools while all children in grades five and six attend the 
inner-city schools—Swann cannot be read as uncritically 
approving any plan employing a similar technique if it has 
an unreasonably disparate racial impact. The issue ap­
parently was not raised in the Supreme Court arid the 
Court did not discuss it. Moreover, the District Court in 
Swann, in approving the adoption of this feature of the 
school board’s plan, did so “ only (1) with great reluct­
ance, (3) as a one-year, temporary arrangement, and (3) 
with the distinct reservation that ‘one-way bussing’ plans 
for the years after 1969-70 will not be acceptable.” Swann 
v. Charlotte-Mecklenburg Board of Education, 306 F. 
Supp. 1291, 1298 (W.D. N.C. 1969). And, following the 
Supreme Court’s decision in Swann, the District Court re­
jected a revised plan proposed by the school board because, 
among other reasons, the plan continued to place a dis­
proportionate burden on black children and their parents 
without showing any educational justification therefor. 
Swann v. Charlotte-Mecklenburg Board of Education, 328 
F. Supp. 1346, 1352-53 (W.D.N.C. 1971).

Since I agree, however, that remand is not required at 
this time, and since I wish to make it clear what the 
majority opinion is not holding with respect to this issue, 
I add the following comments.

Without a compelling justification, adoption of a plan 
that places a greater burden of accomplishing integration 
on black students and their parents is impermissible, 
whether this be phrased in terms of an equal protection 
violation because the plan was the school board’s product, 
see, e.g., Lee v. Macon County Board of Education, 448 
F.2d 746, 753-54 (5th Cir. 1970); Carr v. Montgomery 
County Board of Education, 429 F.2d 382, 385 (5th Cir.



— A-64

1970); Brice v. Landis, 314 F. Supp. 974, 978-79 (N.D. 
Cal. 1969), or in terms of an abuse of the court’s discre­
tion in fashioning an equitable remedy to rectify the ef­
fects of past injustice. Although adoption of such a plan 
might be justified on the basis of the nature of facilities 
involved, or on practical, administrative considerations, or 
on the need to adopt a temporary expedient to assure at 
least immediate substantial progress toward the creation 
of a unitary school system (see Swann v. Charlotte-Mech- 
lenburg Board of Education, supra, 306 F. Supp. at 1298), 
we cannot determine the reason for the District Court’s 
decision because the court did not discuss this issue in its 
memorandum opinion. Ordinarily, in such a case, we 
would remand for findings and conclusions by the District 
Court. See Gordon v. Jefferson Davis Parish School 
Board, 446 F.2d 266 (5th Cir. 1971) (per curiam).

However, the same considerations that argue against 
remand on the issue of the court’s adoption of a less ef­
fective plan are persuasive here as well. The integration 
plan adopted by the court has been in operation during the 
1971-72 school year, and the court has retained jurisdic­
tion of this case to oversee and, if necessary, to modify the 
plan’s implementation. The defendant school board has 
indicated in this court that it intends to seek modification 
on the basis of asserted practical problems that have be­
come apparent since the plan was put into effect. Plain­
tiffs have indicated dissatisfaction with the adoption of a 
plan less effective than that proposed by them, and we 
have indicated that they may seek further relief in the 
District Court. In these circumstances, I agree that we 
should not now disturb the District Court’s approval of 
the HEW plan and possibly encourage the kind of delay 
and inaction that has caused this case to pend for 17 years. 
Plaintiffs may seek modification of the court’s order on 
the ground that the plan places a disproportionate burden 
on black children and their parents, and this issue can be



— A-65

litigated and determined before the beginning of the 1972- 
73 school year. In this way, the disproportionate burden 
asserted by plaintiffs will exist at most for only a short 
period of time and will amount to no more than a tran­
sitory phase (assuming the absence of sufficient justifica­
tion for maintaining it permanently) in the over-all cre­
ation of a unitary school system.

It is to be emphasized, nevertheless, that our refusal to 
take affirmative action on this issue at this time results 
only from the peculiar timing, posture, and history of this 
case. Our opinion should not be construed in any way as 
a qualification of the principle that a district court has an 
obligation to endeavor to distribute the burden of integra­
tion equitably on all races and that any deviation from 
this norm, without a compelling justification, is impermis­
sible.

Finally, I observe that the majority opinion does not 
discuss plaintiffs-appellees’ contention that they should 
be awarded double costs and attorneys’ fees because the 
school board’s appeal is frivolous within the meaning of 
Fed. R. App. P. 38. Since the class action issue obviously 
has no merit, and since the only issue raised by the Board 
that might have merit has never been presented to the 
District Court, I would award the requested double costs 
and attorneys’ fees. See Coppedge v. Franklin County 
Board of Education, 404 F.2d 1177, 1179-80 (4th Cir. 
1968); cf. Monroe v. Board of Commissioners of City of 
Jackson, Tennessee, supra, 453 F.2d at 262-63. The long 
history of this litigation would, in my opinion, make such 
an award particularly appropriate. Cf. Clark v. Board of 
Education of the Little Bock School District, 449 F.2d 493, 
499 (8th Cir. 1971), cert, denied, 40 U.S.L.W. 3400 (U.S. 
Jan. 27, 1972) (No. 71-751).



— A-66 —

APPENDIX “ C”

United States Court of Appeals 
for the Sixth Circuit

Robert W. Kelley, et al.,
Plaintiffs-Appellees,

vs.

Metropolitan County Board of Ed­
ucation of Nashville and David­
son County, Tennessee, et al.,

Defendants-Appellants. __

Nos. 71-1778-79.

ORDER

(Filed July 25, 1972)

Upon consideration of the Appellants’ motion for a stay 
of the mandate pending an application to the United 
States Supreme Court for writ of certiorari and the Ap­
pellees’ response in opposition thereto,

It is ordered that the motion be and hereby is denied.

Entered by order of the Court.
JAMES A. HIGGINS 

Clerk



— A-67 — 

APPENDIX “ D”

In the United States District Court for the Middle 
District of Tennessee, Nashville Division

Eobert W. Kelley et al., Henry C.
Maxwell, Jr., et al.

v.

Metropolitan County Board of Ed­
ucation of Nashville and David­
son County, Tennessee, et al.

REPORT TO THE COURT

(Filed October 19, 1971)

The undersigned Director of the Metropolitan Public 
Schools files this report of the results of the first month’s 
operation under the court ordered plan for further deseg­
regation of the Metropolitan Nashville School System 
adopted by the Court on June 21, 1971, following, with 
some minor modification, the recommendation of the De­
partment of Health, Education and Welfare.

The plan adopted was effective as of September 1, 1971, 
and required the reorganization of the grade structure of 
82 schools and changed the racial composition and popula­
tion of 94 schools. The following is an analysis of the 
results of the operation of the plan for approximately one 
month.

Civil Actions 
" Nos. 2094, 2956.



— A-68 —

Total number of elementary and secondary 
schools ..........................................................

Number of schools ideally integrated (be­
tween 15%-35% black) ............................... 47

Percentage of schools ideally integrated (be­
tween 15% and 35% black) ...................... 35%

Number of schools over 50% b lack ..............  13
Number of schools over 40% b lack ................  41
Number of schools less than 15% b lack .......  31
Number of schools over 90% w h ite ..............  31

(not in all instances the same schools as 
the less than 15% black)

Total enrollment as of June 1971 ..................  93,488
Projected enrollment for 1972 ........................ 96,000
Actual enrollment as of October 12, 1971 . . .  87,770

There are 49,000 students eligible for transportation 
under the plan adopted by the Court. Of this number, 
approximately 28,000 pupils are being transferred from 
their original school zone to a new school zone in order to 
increase integration. During the prior school year, the 
mileage of the school buses in transporting the school 
children was about 3,000,000 miles. Under the plan, the 
mileage is approximately 6,000,000 miles. There are 211 
buses available with an average capacity of 70 children 
per trip. If all buses were completely occupied, 14,770 
children could be transported. In order to handle the 
children eligible for transportation, it is necessary for all 
buses to make three round trips daily and for some of 
the buses on shorter routes to make as many as five trips 
daily.

In order to comply with the Court’s order and to meet 
pupil transportation needs, all reserve buses were put



A-69

into service. Pupil eligibility for transportation, was ex­
tended from 1/4 to 14/2 miles which means that only chil­
dren living more than 1% miles from, school are eligible 
to be transported. The high school day was shortened 
from 7 hours to 6 hours. 133 school openings were stag­
gered to begin at 30 minute intervals from 7:00 A. M. to 
10:00 A. M. The closing period of the schools was. also 
staggered at 30 minute intervals and the latest schools to 
let out are at 4:00- and 4:30 P. M. in the afternoon. 
Transportation for field trips and special fine arts per­
formances which had heretofore played an important role 
in the educational opportunities of the pupils was elimi­
nated.

During the period of operation, there have been an 
average of 12 breakdowns per day. Since all buses are in 
use, the pupils on the buses having mechanical trouble 
must wait until another bus has delivered its children and 
returns for them. The maintenance shops have only four 
bays to service and repair the 211 large buses and the 60 
small special educational buses which have a capacity of 
some 12 to 18 students and are used exclusively for special 
education, that is, for the transportation of the handi­
capped and/or retarded. Prior to the adoption of the 
present court order, the maintenance department had 4% 
hours in the middle of each day to service the buses. Only 
2 hours are now available because buses are on the road 
from 6:00 A. M. to 10:30 A. M. transporting students to 
the staggered openings, of the schools and from 12:30 
P. M. to 6:00 P. M. returning students from the staggered 
closings of the schools to the various pick-up points. It is 
anticipated that the frequency of breakdowns will in­
crease as a result of the extensive use of the equipment, its 
age and the lack of detailed maintenance.

The community reverts to Central Standard Time the 
last of October. During the late fall and winter months,



darkness comes earlier. The Weather Bureau has in­
formed the School Board that on December 1, 1971, a 
typical winter day, the sun will rise at 6:39 A. M., Cen­
tral Standard Time, and will set at 4:32 P. M., Central 
Standard Time. This assumes good weather. In bad 
weather, darkness comes earlier. Early and late starting 
times of school create safety hazards for the students, 
many of whom during the winter will be leaving home 
or returning to their homes after dark. Buses serving 
schools opening at 7:00 A. M. begin their routes at 6:05 
A. M. which is 34 minutes before sunrise on December 1. 
Children must walk to the designated pick-up points. 
Consequently, the children picked up at the beginning of 
the route may be on the street as much as one hour be­
fore sunrise. It should be remembered in this connection 
that children who live within a mile and a half of the 
school to which they are assigned are not furnished trans­
portation and many of these children will begin their 
walk to their designated school in darkness and some of 
them will return, home from school walking in the dark. 
Sundown on December 1, 1971, is at 4:32 P. M., with 
darkness following immediately. Elementary school chil­
dren on late shifts who live V/2 miles or less from their 
schools which let out at 4:30 will be walking home in 
darkness and in many instances without street lights or 
sidewalks.

The school buses that serve the 10 schools that open 
at 7:00 A. M. begin their routes at 6:05 A. M. or 34 min­
utes before sunrise. The children walk to designated 
pick-up points. Of the 10 schools opening at 7:00 A. M., 
there are neither street lights nor sidewalks in the imme­
diate vicinity of 7 schools. There are street lights but no 
sidewalks in the immediate vicinity of one school. There 
are 28 elementary schools which open at 10:00 A. M. and 
close at 4:30 P. M., two minutes before sundown on De­
cember 1. There are 25 schools which open at 9:30 A. M.

— A-70 —



A-71

and close at 4:00' P. M. Many elementary school children 
eligible for transportation who attend the schools clos­
ing at 4:30 will be returned to their pick-up points about 
an hour and 15 minutes after sunset. Many of those at­
tending school closing at 4:00 R M. will he returned to 
their pick-up points about 45 minutes after sunset. Of 
these 53 schools, 16 have neither street lights nor side­
walks in the immediate vicinity. 5 have no sidewalks 
hut have street lights and 2 have no street lights but have 
sidewalks. These children, both walkers and riders, are 
placed in a hazardous position when returning home from 
school or from the pick-up point.

The average time of a student on a bus transported 
across town to school is 45 minutes one way. The longest 
period of time required for cross-town transportation is 
1 y2 hours each way. 28,000 pupils are transported from 
the suburbs to the inter-city or vice versa each day. There 
are approximately 400 round trips across town by the 211 
buses each day.

In many instances, the bus routes follow the interstate 
highway because of the saving of time involved by use of 
these highways. The hazards of transportation are in­
creased, however, by use of the interstate highway sys­
tem. This is because when there is a breakdown on the 
interstate, the dangers to the students being transported 
are much greater than if the breakdown had occurred off 
the interstate highway system. The use of the interstate 
highway system is not desirable and the Metropolitan 
Public School System would prefer to route its buses some 
other way. Because of the lack of buses and the necessity 
of compliance, the Metropolitan School System has no 
choice but to use the interstate highway system and re­
duce the time required for transportation so that buses 
can make more trips and haul more students and thus com­
ply with the Court’s decree. Of the 211 buses in service,



A-72 —

18 are new. Only 18 additional buses could be acquired for 
financial reasons.

The age of the buses used to transport the children is 
as follows:

1971 models—18 buses 
1970 models—15 ‘ ‘
1969 models—10 “
1968 models—10 ‘ ‘
1967 models—67 ‘ ‘
1966 models—25 ‘ ‘
1965 models—14 ‘ ‘
1964 models—12 “
1963 models— 5 ‘ ‘
1962 models—13 ‘ ‘
1961 models— 5 “
1960 models— 4 ‘ ‘
1959 models— 2 ‘ ‘
1958 models— 8 “
1957 models— 3 ‘ ‘

I have heretofore stated that under the plan, it is neces­
sary for the buses to travel approximately 6,000,000 miles 
per year. Of this mileage, the 211 large buses travel a little 
more than 5,000,000 miles per year or an average of 140 
miles per day. The remaining mileage is accounted for by 
the small special buses transporting the handicapped and/ 
or retarded children.

The foregoing transportation plan was approved by the 
Board in anticipation of the availability of Federal funds 
to purchase additional equipment and defray additional 
operating costs. The anticipated funds have not been 
forthcoming. Application has been made to the Regional



A-73

Office of Education, Division of Equal Educational Oppor­
tunity, Atlanta, Georgia, for assistance. It is not antici­
pated that any additional funds will be made available for 
the transportation of students in view of the public dec­
laration of the President of the United States that no pres­
ently authorized funds will be used for this purpose. Esti­
mated costs of additional equipment, operation and main­
tenance are:

Eighty-seven 84-passenger buses at $16,300. .$1,418,100
Maintenance equipment ...............................  177,000
Operation costs for one y e a r .......................  700,000
Maintenance facilities and la n d .....................  1,350,000
Installation of safety loading zones at 42 

schools ...................................................... 56,000

Total $3,701,100

The School Board is fiscally dependent in that its budgets 
must be approved by the Metropolitan City Council. In 
approving the budget of the School Board on June 30, 
1971, Council members demanded assurance that no funds 
included in the budget -would be used to purchase buses 
for the purpose of transporting students to establish a 
racial balance. The 1971-72 budget did provide for the 
purchase of 18 large buses to replace obsolete equipment to 
provide transportation for students to the new compre­
hensive McGavoek High School. Notwithstanding the at­
titude of the City Council, the School Board is now pre­
paring to make application to the Council for additional 
funds to acquire additional buses so that the plan adopted 
by the Court may be carried out. If funds were made 
available for this purpose and orders were placed for 
buses today, they could not be manufactured and de­
livered to the School Board for use earlier than six 
months from the date of the order. Consequently, regard­



A-74

less of whether additional funds are or are not obtained 
or whether new buses can or cannot be acquired, inade­
quate transportation facilities and equipment will con­
tinue to require extended scheduling of school openings 
and closings and extended distances non-bused children 
must walk to and from school. In addition, the School 
Board will continue to operate without a reserve fleet of 
buses to care for emergency situations. The result is that 
there will be serious interruptions of transportation serv­
ice during the cold winter months and these interruptions 
will constitute a hazard to the health of the students as 
well as a safety hazard. Unless unanticipated assistance 
is forthcoming promptly, I do not see how the present plan 
can continue safely during the winter months.

Dated: October 18, 1971.
/ s1,/ ELBERT D. BROOKS 

Director of Schools 
Metropolitan County Board 

of Education

State of Tennessee 
County of Davidson

Elbert D. Brooks, being first duly sworn, states that he 
has read the foregoing Report to the Court and that the 
statements made therein are true to the best of his knowl­
edge, information and belief.

/s /  ELBERT BROOKS

Subscribed and sworn to before me this 18th day of 
October, 1971.

NINA L. PHELPS 
Notary Public

My Commission Expires Feb. 7, 1973.