Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Petition for Writ of Certiorari
Public Court Documents
October 4, 1971

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Brief Collection, LDF Court Filings. Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Petition for Writ of Certiorari, 1971. c79290c8-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/79750ecd-0378-4fbb-8fbd-a423e5cc6e70/kelley-v-metropolitan-county-board-of-education-of-nashville-and-davidson-county-tn-petition-for-writ-of-certiorari. Accessed April 29, 2025.
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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.